DATE:  March 17, 1995
CASE NO. 93-ERA-1


IN THE MATTER OF

L. CRAIG WAGERLE,

          COMPLAINANT,

     v.

THE HOSPITAL OF THE UNIVERSITY OF
PENNSYLVANIA, DEPARTMENTS OF
PHYSIOLOGY AND PEDIATRICS,

          RESPONDENTS.


BEFORE:   THE SECRETARY OF LABOR


                            DECISION AND ORDER

     Complainant L. Craig Wagerle, Ph.D., alleges that
Respondent, the Hospital of the University of Pennsylvania,
Departments of Physiology and Pediatrics ("the Hospital" or "the
University"), retaliated against him in violation of the Energy
Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1988), 
because he had filed an earlier ERA complaint against the
University and also supported the separate ERA complaint of a co-
worker.  The Administrative Law Judge (ALJ) recommended dismissal
because the complaint was not filed timely.  In the alternative,
the ALJ found that even if the complaint was timely, the
University had legitimate, nondiscriminatory reasons for removing
certain laboratory material and for discharging Wagerle.  The
ALJ's proposed findings of fact, R.D. and O. at 2-8, are
supported by the record and I adopt them.  The ALJ's Recommended
Decision and Order is adopted as modified below.  
                  PRELIMINARY ISSUE CONCERNING THE RECORD
      Wagerle has submitted two "requests not to approve" the 
[PAGE 2]
ALJ's R.D. and O., dated September 1, 1994, and January 31, 1995,
that are not authorized by the Order Establishing Briefing
Schedule. [1]   Wagerle attached to both requests documents that
were not admitted into evidence at the hearing.  There is no
indication that Wagerle served copies either of the requests or
of the accompanying documents on opposing counsel.  The
applicable regulation, 29 C.F.R. Sec. 18.55, requires that
documents submitted for the record post-hearing shall be
accompanied by proof of service on all parties, "who shall have
an opportunity to comment thereon."  Accordingly, although the
requests and the accompanying documents are kept with the record,
they are not made a part of the record of this case. [2]  
                                 ANALYSIS
     I. Timeliness of the Complaint
At the time Wagerle filed his complaint, the ERA provided that:
     Any employee who believes that he has been discharged 
     or otherwise discriminated against by any person in
     violation of [the employee protection provision] may,
     within thirty days after such violation occurs, file 
     . . . a complaint with the Secretary of Labor . . . 
     alleging such discharge or discrimination.

42 U.S.C. § 5851(b)(1) (1988). [3]   The ERA filing period
commences on the date that a complainant receives a "final and
unequivocal" notice of the challenged actions rather than at the
time the effects of the actions ultimately are felt. 
English v. Whitfield, 858 F.2d 957, 962 (4th
Cir. 1988); Thomas v. Arizona Public Service Co.,
Case No. 89-ERA-19, Final Dec. and Order, Sept. 17, 1993, slip
op. at 11.  
     It is undisputed that Wagerle's position as Research
Associate Professor at the University depended on his obtaining
outside funds to support his research.  RX 5.  Wagerle's position
ended on July 31, 1992, RX 22, and he filed this complaint on
August 27, 1992.  The ALJ found that the complaint concerning
termination of employment was untimely because Wagerle should
have known by March 10, 1992 that the University "had no
intention of continuing his employment beyond the point that it
was funded by outside grants and he had no reasonable expectation
at that point of timely receiving a sufficient new grant."  R.D.
and O. at 10.  Indeed, the University had advised Wagerle on
several occasions between November 1991 and April 1992 that his
grant funds would expire, and his position would end,
approximately in June 1992.  RX 6, 11, 14, 15.
     Wagerle argues that the various notices he received prior to
July 31, 1992 were not final and unequivocal because they
contained different dates projecting when his grant funds would
expire.  As principal investigator, Wagerle was "responsible for 
[PAGE 3]
budgetary aspects" of his existing outside grant, T. 43, and
therefore it understandable that the University could not state
with exact certainty the date of the funds' exhaustion until
close to the time the funds actually reached zero.  Wagerle also
asserts that the notices were not final because the University
could have used other sources of funds to pay his salary after
the expiration of his grant money.  Comp. Br. at 12-14.  But, the
March 1992 notice clearly stated that the University did not
intend to continue Wagerle's employment beyond the duration of
his current outside grant and that the likelihood of his timely
obtaining additional outside funds was very remote.  R.D. and O.
at 10; RX 14.
     In the English case, the court found that the
employer's notice that the complainant would be placed on layoff
"if she had not secured a suitable permanent position by the end
of her temporary assignment" was sufficiently final and
unequivocal that it started the running of the 30 day filing
period.  858 F.2d at 959, 962.  The court emphasized that
"[t]here was no intimation in [English's layoff notice] that the
decision was subject to further appeal, review, or revocation,
either in whole or in part."  858 F.2d at 962.
     Wagerle received a similar notice that his position
would end upon the exhaustion of existing grant funds unless he
obtained additional outside funding.  As in English,
Wagerle's notice did not intimate that the termination of his
position was subject to further review or appeal.  I therefore
find that the March 1992 notice was final and unequivocal
concerning the ending of Wagerle's position and triggered the
limitations period under the ERA. 
     Wagerle contends that the ALJ's ruling that he could not
introduce evidence concerning events prior to November 1991
prevented him from establishing that his complaint was timely
under the "continuing violation" theory.  Comp. Br. at 14-15. [4] 
 The argument is unconvincing. 
     The timeliness of an ERA complaint may be preserved under
the continuing violation theory "where there is an allegation of
a course of related discriminatory conduct and the charge is
filed within thirty days of the last discriminatory act." 
Thomas, slip op. at 13; Garn v. Benchmark
Technologies, Case No. 88-ERA-21, Dec. and Order of Rem.,
Sept. 25, 1990, slip op. at 6; Egenrieder v.
Metropolitan Edison Co./G.P.U., Case No. 85-ERA-23, Order of
Rem., Apr. 20, 1987, slip op. at 4.  See also  Berry
v. Board of Supervisors of L.S.U., 715 F.2d 971, 981
(5th Cir. 1983), cert. denied, 479 U.S. 868 (1986) (under
Title VII of Civil Rights Act of 1964).  But Wagerle did not
allege any instance of retaliatory conduct that occurred within
30 days of the date he filed his complaint.  

[PAGE 4]
     The most recent event about which Wagerle complained was the
removal of certain materials and equipment from his laboratory
located in a building that was to be demolished.  Wagerle's own
evidence shows that he learned of the removal of materials and
equipment when he went to the laboratory on July 23, 1992.  CX 2. 
On that date Wagerle confronted the person who had removed the
materials.  R.D. and O. at 10; T. 87-88.  A letter Wagerle wrote
the next day shows that on July 23 he knew that some of the
materials that he deemed to be of "immeasurable value" had been
removed for disposal.  CX 3.
     Notwithstanding Wagerle's knowledge of the disposal of the
materials, he did not file the complaint until 35 days later, on
August 27, 1992.  Therefore, Wagerle did not allege a
discriminatory action that occurred within 30 days of the filing
of the complaint.  Consequently, the continuing violation theory
does not apply.     I therefore find that the entire complaint was untimely
under the provisions of the ERA then in effect. [5] 
                                CONCLUSION
     The ALJ's recommendation to dismiss the complaint as
untimely is adopted.  Accordingly, the complaint is DISMISSED.
     SO ORDERED.


                              ROBERT B. REICH   
                              Secretary of Labor

Washington, D.C.




[ENDNOTES]
           
[1]  Wagerle submitted the requests pro se.  He earlier
informed me that his counsel no longer represented him in this
case.

[2]  Some of the documents accompanying the 1995 request are
copies of letters Wagerle sent to me to inquire about the status
of this case and/or complain about alleged new incidents of
retaliation.  Copies of Wagerle's earlier inquiries and my
responses to them were served on counsel for the University and
already have been placed in the record in this case.

[3]  Wagerle filed his complaint on August 27, 1992.  Section
2902(b) of the Energy Policy Act of 1992, Pub. L. No. 102-486,
106 Stat. 2776, amended the time period for filing a complaint to
180 days for claims filed on or after the date of its enactment,
October 24, 1992.  See Section 1902(i) of Pub. L. No. 102-
486.  Therefore, the 30-day limit applies to this case.

[4]  The ALJ ruled that "the hearing in this case would be
confined to those alleged retaliatory acts occurring subsequent
to November 21, 1991," R.D. and O. at 2, because of the dismissal
with prejudice of Wagerle's earlier ERA complaint against the
University.  See RX 1.  In a separate Order issued today,
I deny reconsideration of the Secretary's Final Order of
Dismissal in the earlier case, No. 91-ERA-48.

[5]  I note that I would agree with dismissal on the merits of
the complaint because Wagerle did not persuade me that his
engaging in protected activities was the real reason for the
removal of laboratory material or for the termination of his
position.