Date: December 11, 1987

Case No. 84-ERA-27

IN THE MATTER OF

HOWARD SAMUEL NUNN, JR.,
    Complainant

    v.

DUKE POWER COMPANY,
    Respondent

    On September 10, 1987, Judge Eric Feirtag issued an Order to Show Cause why this claim should not be deemed timely filed. Respondent was given until october 20, 1987, to respond and the Complainant was given until November 9, 1987 to reply.

    On October 20, 1987, Respondent submitted a Response to Order to Show Cause and Motion for Summary Judgment. Pursuant to the Rules of Practice and Procedure governing administrative hearings a party is given ten (10) days to respond to a motion for summary judgment. 29 C.F.R. § 18.40(a). On November 9, 1987, Complainant submitted Complainant's Response to

Respondent's Response to order to Show Cause and Motion for Summary Judgment. This response was not submitted within the ten day period allowed and there was no request for an extension of time. Consequently, in light of 20 C.F.R. § 18.40(a), complainant's response will not be considered in ruling on Respondent's motion for summary judgment. Respondent also submitted a response to Complainant's reply on December 4, 1987.

    In order to prevail on a motion for summary judgement, the moving party must establish that there is no genuine issue of material fact and that it is entitled to prevail as a matter of law. 29 C.F.R. § 18.40(d). Respondent's motion, accompanied by exhibits and affidavits, is not sufficient to establish that there is no genuine issue of material fact regarding whether this claim was timely filed. Therefore, Respondent cannot prevail on its motion.

    The regulations governing the procedure for handling discrimination complaints under the Energy Reorganization Act of 1974 state that a "complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing." 29 C.F.R. § 24.3(b).

    Complainant, Howard Samuel Nunn, Jr., worked for Respondent, Duke Power Company, as a welder from September 18, 1978 until October 19, 1983. During his employment, Complainant reported numerous safety related problems to his supervisors, the Palmetto Alliance, a legal intervenor involved in the licensing proceeding for the Catawba Power Plant, and personnel of the Government Accountability Project. On October 14, 1983; Complainant was "removed from service." Respondent alleges that this removal was based on excessive absenteeism. Complainant's position is that it was part of a continuing course of retaliation for his safety complaints. An investigation was conducted after Complainants removal from service, which is normal company procedure, and on october 19, 1983, Complainant was officially terminated. A letter dated November 18, 1983, and stamped received on November 22, 1983, was sent to the Wage and Hour Division of the U.S. Department of

Labor by Complainant. This letter serves as his complaint.

    Respondent contends that the "operative decision" to terminate the Complainant was made on october 14, 1983, and communicated to Complainant on that date. Thus, Respondent argues that the 30 day filing requirement should run from October 14, 1983, rendering the complaint untimely. Respondent further contends that the october 19, 1983 letter, officially terminating Complainant's employment, was merely the implementation of a decision previously made. See Respondent's Motion for Summary Judgment, Exh. O.

    In support of this argument, Respondent cites Delaware State College v. Ricks, 449 U.S. 250 (1980) and Chardon v. Fernandez, 454 U.S. 6 (1981). In these cases the Court held that the limitation period for filing, set out in the regulations, begins to run when the operative decision to terminate or deny tenure is made and communciated to the employee, not the date when the termination is implemented.

    A review of the Ricks case is helpful in defining what the Court means by the "operative decision" to deny tenure. Columbus Ricks was hired as a professor at Delaware State College in 1970. "By June 26, [1974] the tenure committee had twice recommended that Ricks not receive tenure; the Faculty Senate had voted to support the tenure committee's recommendation; and the Board of Trustees formally had voted to deny Ricks tenure." 449 U.S., at 263, 101 S.Ct., at 506. The Court held that the operative decision was made when the Board of Trustees formally voted to deny tenure.¹ Id. at 262, 101 S.Ct., at 505.

    Respondent, Duke Power, argues that the October 14, 1983 removal from service coupled with the investigation on the same day is comparable to when he operative decision was made in Ricks. See Respondent's Motion for Summary Judgment at 14; Exh. E (Brewer Aff.) at 31; Exh. L (Sutton Aff.) at 21.

    I find the holding in Ricks dispositive but not in the manner interpreted by Respondent. The operative decision in Ricks was made after two recommendations by the tenure committee, review by the Faculty Senate and then a formal vote by the Board of Trustees; a long and elaborate process. The

¹ A letter was drafted reflecting the decision of the Board of Trustees and sent on June 26, 1974, informing Ricks that he had been denied tenure, but was being offered a one year "terminal" contract at the conclusion of which his employment would end. Id. at 259, 101 S.Ct., at 504.