Administrative Law Judge (ALJ) C. Richard Avery submitted a
Recommended Decision and Order (R.D. and O.) to the Secretary on
June 23, 1989, in the above-captioned case arising under the
employee protection provision of the Energy Reorganization Act of
1974, as amended (ERA), 42 U.S.C. § 5851 (1982). The case is now
before me for review. 29 C.F.R. § 24.6 (1989). The ALJ has
recommended that this complaint be dismissed as not timely filed
under 29 C.F.R. § 24.3(b) and, further, because the record
establishes that Complainant was terminated for absenteeism and
not in retaliation for a protected activity. In an order
Establishing Briefing Schedule issued August 3, 1989, the parties
were given an opportunity to submit briefs in support of or in
opposition to the ALJ's R.D. and O. The Respondent filed a brief
[Page 2]
in support of the ALJ's R.D. and O. and incorporated by reference
its post-hearing brief which was submitted before the ALJ. In
that brief Respondent argues that the complaint should be
dismissed because the Complainant failed to satisfy the time
requirement provided at 42 U.S.C. § 5851(b)(1) and 29 C.F.R.
§ 24.3(b). Respondent also contends that the Complainant failed
to demonstrate the requisite elements of a prima facie case.
Complainant did not file a post-hearing brief, R.D. and O. at 2
n.1., nor respond to my order.
1Although there is a handwritten
complaint in the record
bearing the date August 12, 1988, which Complainant contends was
originally submitted around January 26, 1988, ALJ Ex. 5; CX-14,
the ALJ was not persuaded by Complainant's assertions that he
filed this complaint in January and the record supports the ALJ's
analysis and credibility determinations. Thus, I conclude that
the ALJ correctly chose not to credit this complaint as evidence
of a timely filing with the Department of Labor (DOL).
2Inasmuch as this complaint is
dismissed on the grounds of
untimeliness under 42 U.S.C. § 5851(b)(1), the merits of
Complainant's case need not be considered and the ALJ's
recommendations on the merits are not addressed herein.