The Trans-Alaska Pipeline System (TAPS) was constructed for the transportation of Alaskan crude oil from the oil fields on the North Slope of Alaska to Valdez on Prince William Sound. TAPS is operated and maintained by Alyeska acting as agent for seven owner companies. HNJV provided maintenance services to Alyeska on TAPS.

   Johnsen began working for HNJV as an electrician on June 2, 1998. HNJV hired Johnsen through his union. Johnsen worked for HNJV until December 10, 1998. At that time HNJV terminated Johnsen and informed him that he was ineligible for rehire. (HNJV EX. 1). Johnsen was aware at that time that he was ineligible for rehire and filed complaints with Alyeska's Quality Assurance Program, the National Labor Relations Board, the Joint Program Office, Alyeska's Employee Concerns Program and his union. (HNJV EXs. 2-6).

   In May 1999, Johnsen was dispatched by his union for employment at HNJV. On May 24, 1999, HNJV notified the union that Johnsen was terminated on December 10, 1998, and was not eligible for rehire. (HNJV EX. 7). On June 9, 1999, Johnsen was notified of HNJV's rejection of his employment bid. (HNJV EX. 8). HNJV was required under its agreement with Alyeska and the union to inform the union and the applicant in writing of the rejection of any employment bid referred to HNJV by the union. (HNJV EX. 9).

   On June 9, and June 17, 1999, Johnsen filed his complaint with the Department of Labor alleging violation of environmental statutes by HNJV and Alyeska because of the failure to hire him and for blacklisting.

   Summary Decision may be granted where it is shown that the non-moving party cannot prove an essential element of his claim, so that there is no genuine issue of fact to be determined at trial. A genuine issue of material fact is presented when the record, taken as a whole, could lead a rational trier-of-fact to find for the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); 29 C.F.R. §18.41.

   The moving party has the burden of production to prove that the non-moving party cannot make a showing sufficient to establish an essential element of his case. Once the moving party has met its burden of production, the non-moving party must show by evidence beyond the pleadings themselves that there is a genuine issue of material fact. Celotex at 324. I find summary decision is appropriate in this case as there is no genuine issue of material fact in dispute with respect to the issue of timeliness.

   29 C.F.R. § 24.3(b) provides that complaints alleging violations of environmental whistleblower protection laws "shall be filed within 30 days after the occurrence of the alleged violation." The thirty day period begins to run at the time the discriminatory act occurs,

not when the employee feels the impact of the discrimination. Chardon v. Fernandez, 454 U.S. 6 (1981). The filing period commences when the employer makes the decision and communicates it or makes it apparent to the employee. Delaware State College v. Ricks, 449 U.S. 250 (1980). The thirty day statute of limitations has been strictly enforced. However the principle of equitable tolling applies and the timeliness of a claim may also be preserved under a continuing violation theory. School District of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981); Gore v. CDI Corp. & Carolina Power & Light Co., 91-ERA-14 (Sec'y July 8, 1992).

   Hadden v. Georgia Power Co., 1989-ERA-21 (Sec'y Feb. 9, 1994), appears to be directly on point with the undisputed facts of the instant case. In Hadden, the complainant was terminated on June 3, 1986. The termination notice stated Hadden was not eligible for rehire. Hadden received this termination notice but testified that the length of time he was barred and to which contractors the bar applied was not clear to him until December, 1988, when he received a copy of a letter from the employer to his union, stating that he was permanently barred. Hadden filed his first whistleblower complaint on December 20, 1988.

   The main issue in Hadden was whether Hadden had received "definite notice" and "final and unequivocal notice". In ruling on these issues the Secretary stated "Even if there were some ambiguity about the length of time he was ineligible for rehire, Complainant knew an adverse action, in addition to discharge, had been taken against him... The requirement of diligent inquiry imposes an affirmative duty on the potential plaintiff to proceed with a reasonable investigation in response to an adverse event." The importance of this language and the Hadden decision to the instant case is the recognition that the adverse action for purposes of the statute of limitations was the notification to Johnsen that he was terminated and was ineligible for rehire. It is undisputed that Johnsen was aware of this adverse action on December 10, 1998.

   Johnsen attempts to distinguish Hadden as the instant case involves a non-disciplinary layoff based solely on the fact that the job project ended and where the notice of rehire was an unexplained "not eligible for rehire" box checked on a standard out processing form. Without more, Johnsen asserts, one cannot conclude that the checking of this box is a final decision as opposed to a recommendation or evaluation notation. In effect what Johnsen is arguing is that these actions did not constitute "definite notice" and "final and unequivocal notice".

   In the Hadden case, the complainant testified that the scope and length of the bar to his reemployment were not clear to him. In his appeal of the OSHA decision, Johnsen notes that on the day after he was laid off with a no rehire he tried to contact ECP about the termination. (HNJV EX. 2). In the JPO ECP Intake Statement signed by Johnsen and dated March 31, 1999, it is noted that Johnsen had grieved his "no re-hire" to the union. (HNJV EX. 4). In his filings before the NLRB Johnsen states he was bringing the action because he was fired on December 10, 1999. (HNJV EX 5, 6). I note that nowhere has Johnsen even alleged, must less presented evidence, that he was unaware that he was not eligible for rehire and that this was a final decision.

   A party opposing summary decision must present affirmative evidence in order to defeat a properly supported motion for summary decision. The undisputed evidence is that Johnsen had notice sufficient to trigger the thirty day time limit for filing an environmental whistleblower complaint on December 10, 1999.

   Johnsen argues that there is a factual issue as to whether the letter to his union in May, 1999, and the failure to rehire in June, 1999, were part of a continuing violation with the December 10, 1998 "no rehire" notation. In Hadden, a similar letter was sent to the union advising that Hadden was permanently barred from employment. The Secretary held that the decision of an employer not to rehire its own former employee is not a continuing violation.

   Johnsen argues that the statute of limitations for the blacklisting claim did not commence until Johnsen learned of the communication to the union or until he was denied re- employment, citing Webb v. Carolina Power & Light Co., 93-ERA-42 (Sec'y July 14, 1995). However, when Webb was laid off at the completion of the project, there was no "no rehire" provision involved. Webb did not argue that his termination was discriminatory and Webb engaged in protected activity only after he was laid off. Later, Webb applied for an engineering position with his previous employer. In finding that summary decision was not appropriate, the Secretary noted there was a disputed issue concerning the time Webb knew he had not been selected for an engineer position. There is no such issue in the instant case. Faced with facts remarkably similar to this case, in Hadden the Secretary held that placing an employee on a permanent bar list is not the equivalent to blacklisting which constitutes a continuing course of discriminatory conduct. The Secretary held that an employer's decision not to rehire its own employee is not a continuing violation.

   As stated in HNJV's brief and as supported by the HNJV exhibits, Johnsen knew he was fired and would not be rehired since December 10, 1998. Johnsen has not presented any evidence to the contrary. Accordingly, there is no genuine issue as to the untimeliness of the complaint. The complaint is time barred because the no-rehire decision was made and Johnsen was aware of the decision more than 30 days prior to the filing of his complaint.

   The complaint of discrimination filed by Don A. Johnsen pursuant to the Toxic Substances Control Act (TSCA), 15 U.S.C. §2622; the Water Pollution Control Act (WPCA), 33 U.S.C. §1367; and the Clean Air Act (CAA), 42 U.S.C. §7622, is dismissed and the September 19, 2000 hearing in Anchorage, Alaska is CANCELED.

   So ORDERED.

      LARRY W. PRICE
      Administrative Law Judge

NOTICE: This Recommended Decision and/or Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. Such a petition for review is timely filed with the Administrative Review Board within ten (10) business days of the date of this Recommended Decision and/or Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§24.8 and 24.9, as amended bby 63 Fed. Reg. 6614 (1998).