DATE:  September 6, 1995
CASE NO:  93-ERA-0009


IN THE MATTER OF

ROBERT J. FUGATE 

          COMPLAINANT,

     v.

TENNESSEE VALLEY AUTHORITY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER 

     This case arises under the employee protection provisions 
of the Energy Reorganization Act of 1974, as amended (ERA), 
42 U.S.C. § 5851 (1988).[1]   Complainant, Robert D. Fugate
(Fugate), is employed by Respondent, Tennessee Valley Authority
(TVA), as a steamfitter in the Nuclear Power Operations Support
Organization.  Fugate raised concerns with TVA's Employee
Concerns Office regarding the hiring of an "outside" fire fighter
for its fire protection program.  Thereafter, Fugate filed a
complaint with the U. S. Department of Labor (DOL) alleging that
TVA had retaliated against him in violation of the Act.  TVA
filed a Motion for Partial Summary Judgment seeking dismissal of
most of Fugate's claims on the grounds that the allegations were
untimely and barred under the provisions of the Act.   
     After an evidentiary hearing on the merits, the ALJ issued a
Recommended Decision and Order (R. D. and O.) concluding that
Fugate failed to present any evidence that he engaged in
protected activity, and recommending that the complaint be
dismissed.  The ALJ's findings of fact are amply supported
by the 
[PAGE 2]
evidence and the conclusions of law are correct.  Except as noted
below, I adopt the R. D. and O. and dismiss the case.
     In order to prevail in an environmental whistleblower case,
the complainant must first show that he engaged in protected
activity.  Dean Dartey v. Zack Company of Chicago, Case
No. 82-ERA-2, Sec. Dec., April 25, 1983, slip op. at 7-8.  As the ALJ
accurately concluded, Fugate neither pled nor presented any
evidence from which one could conclude that he engaged in
protected activity within the meaning of the environmental
whistleblower provisions.  Fugate made an internal complaint
regarding a personnel issue, not a safety concern.  On the
reporting form Fugate used to make the complaint he did not check
the "safety related" box.  R. D. and O. at 5.  Without some
evidence to support the protected activity element of an
environmental whistleblower case, Fugate's complaint must be
dismissed.
     The ALJ refused to allow Fugate to introduce evidence of an
alleged discriminatory act that took place on June 21, 1991. 
Fugate states that he was not called for overtime on that day. 
Objection to the introduction of evidence concerning this
incident was sustained because Fugate failed to mention it during
discovery.  The outcome of the case is not affected by this
evidence, even though it is Fugate's only timely allegation of
discriminatory action, because it does not change the fact that
Fugate did not show that he engaged in protected activity.  The
evidence should have been admitted because, although Fugate did
not specifically refer to the incident during discovery, he did
consistently maintain that other unnamed instances of
discrimination had occurred.  
     The complaint in this case was filed on June 28, 1991, and a
hearing was held on March 28 and 29, 1993.  TVA's first attempt
at discovery was the service of interrogatories on February 4,
1993.  Fugate responded to the interrogatories on March 24, 1993,
but did not respond to interrogatory number 20 regarding
overtime.  TVA moved for sanctions on March 25, 1993, and noted
that Fugate did not respond to "the one claim that Complainant
asserts falls within the limitations period."  Brief in support
of TVA's Motion for Sanctions at 1.  Thus, TVA must have had
actual knowledge, prior to the hearing, of Fugate's June 21, 1991
overtime allegation.  Further, in response to interrogatory
number 7 asking Fugate to set out the factual basis for his
allegation that he was subject to "intense and continuous
discrimination," Fugate did not set out the June 21, 1991
overtime incident, but did state that the incidents cited "are
not isolated events."  Finally, in his deposition held on 
February 18, 1993, Fugate stated that "I would have to sit down 
[PAGE 3]
and review this and see again just exactly how this whole thing
came down," in response to the question "[i]s there any other
claim in this, your complaint letter, that we have somehow missed
today?"  Fugate Dep. at 66.
     The record does not reflect that TVA ever moved to compel
discovery.  An obvious consequence of waiting for 19 months after
a complaint is filed, and until less than two months before the
hearing date, to commence discovery is that a party may not get
adequate answers to its discovery requests and that it may not
have time to move to compel discovery.  TVA did not provide a
sufficient basis in the record to prohibit the introduction of
relevant evidence based upon failure to disclose in the discovery
process.
     Further, for reasons of judicial efficiency, evidence such
as was prohibited in this case should be admitted to help avoid
the necessity of a remand.  See Builders Steel Co. v.
Commissioner of Internal Rev., 179 F.2d 377 (8th Cir. 1950). 
If Fugate had engaged in protected activity, I would have no
choice but to remand on the timeliness issue as it relates to the
alleged June 21, 1991 incident.  Given that Fugate was unable to
recall this incident in responding to TVA's discovery requests, I
may not give this evidence much weight, but it should have been
admitted.  
     For the foregoing reasons I adopt the ALJ's recommended
decision as modified above and dismiss this case.
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor

Washington, D. C.






[ENDNOTES]
           
[1] 
  The Amendments to the ERA in the National Energy Policy Act of
1992, Pub. L. No. 102-486, 106 Stat. 2276 (Oct. 24, 1992), which,
in part, extend the filing deadline in ERA cases to 180 days, do
not apply to this case because the complaint was filed prior to
the effective date of the Act.  For simplicity's sake I will
continue to refer to the provisions as codified in 1988.