DATE:  March 16, 1995
CASE NO. 93-ERA-4


IN THE MATTER OF

CHAMAN L. GROVER,

          COMPLAINANT,

     v.

HOUSTON LIGHTING & POWER,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the Recommended Decision and Order
(R.D. and O.) of the Administrative Law Judge (ALJ) in this case
arising under the employee protection provisions of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988).  The ALJ found that the complaint should be
dismissed as untimely filed, and alternatively, concluded that
Complainant failed to establish a prima facie case of retaliatory
adverse action in violation of the ERA.  Respondent filed a brief
urging that the complaint should be dismissed for the reasons set
out in the R.D. and O.  Complainant did not file a brief before
me.
     For the reasons discussed herein, I accept the ALJ's
recommendations and dismiss the complaint as untimely.  Moreover,
I agree that even assuming the complaint was timely, Complainant
has not established the requisite element of protected activity
in this case arising in the Fifth Circuit.  See Brown &
Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984);
Goldstein v. Ebasco Constructors, Inc., Case No. 86-ERA-
36, Sec. Ord., Aug. 16, 1993.
     The pertinent facts are as follows.  Complainant was 
[PAGE 2]
employed by Respondent as a Senior Quality Assurance Engineer at
the South Texas Nuclear Power Plant (STP) from July 1982 until
the effective date of his resignation on April 1, 1992.  On 
March 12, 1992, Complainant was asked to sign his performance
evaluation for the period of February 26, 1991 through March 11,
1992.  The overall summary of Complainant's performance was
"needs overall improvement to meet standards for the job."  JTX 2
at 11; HLPX 15.  
     By letter dated March 31, 1992 and sent to Mr. Odom, the
Manager of Human Resources at STP, Complainant resigned effective
April 1, 1992.  JTX 2.  In that letter Complainant asserted that
his March 11, 1992 performance appraisal was "character
assassination" and alleged that he was being "harassed,
intimidated, and demanded to sign the Design Documents without
adequate review and discriminated being of Asian Indian 
origin [sic]."  JTX 2 at 1.  Complainant's resignation letter
alleged racial discrimination, and the last challenged act by
Respondent which prompted Complainant's resignation was said to
occur on March 16 and 17.  JTX 2 at 1, 12, 13.  Complainant
alleged that on those dates he was scolded and humiliated by his
supervisor for not completing all of his assignments.  JTX at 12. 
Complainant mailed a copy of this letter to the Nuclear
Regulatory Commission (NRC).  JTX 2 at 13; R.D. and O. at 5.  The
NRC responded in a letter dated April 9, 1992, explaining that
Complainant had thirty days from the date of an alleged
discriminatory act in which to file a written complaint under the
ERA with the U.S. Department of Labor (DOL).  R.D. and O. at 6.
     After a hearing on the merits and the submission of post-
hearing briefs, the ALJ issued a recommended decision.  The ALJ
first found that the complaint was untimely and that equitable
tolling was not warranted in the circumstances presented.  I
agree with the ALJ's recommendation to dismiss the complaint on
these grounds.  
     It is undisputed that the ERA complaint was filed with DOL
on April 24, 1992.  The last alleged discriminatory act committed
by Respondent was on March 17, 1992, more than thirty days before
the date the complaint was filed.  Accordingly, the complaint was
untimely filed outside the thirty day filing period.  42 U.S.C. 
§ 5851(b)(1); 29 C.F.R. § 24.3(b) (1988); See
generally Bonnano v. Northeast Nuclear Energy Co.,
Case No. 92-ERA-40 and 42, Sec. Fin. Dec. and Ord., Aug. 25, 1993,
slip op. at 6-9.
     Moreover, there is no evidence in the record to support a
finding that equitable tolling of the limitations period is
warranted in this case.  See School District of the
City of Allentown v. Marshall, 657 F.2d 16, 20-21 (3d Cir.
1981).   Complainant has not alleged that he was actively misled
by Respondent or prevented in some extraordinary way from
asserting 
[PAGE 3]
his rights.  Complainant's March 31 letter does not constitute
mistakenly filing the precise statutory claim in the wrong forum,
because Complainant admits that quality concerns were not
addressed in his March 31 letter.  The April 24 ERA complaint was
entirely different than the resignation letter of March 31.  The
sole allegations of discrimination in the March 31 letter
involved racial discrimination. 
     Even if the complaint was deemed timely filed, Complainant
still would not prevail.  The ALJ correctly concluded that
Complainant did not establish that he engaged in protected
activity prior to his letter of resignation.  Complainant's oral
complaints to his immediate supervisors at Houston Lighting &
Power were internal complaints.  The U.S. Court of Appeals for
the Fifth Circuit, whose decisions are controlling in this case,
has held that internal complaints are not protected under the
ERA.  Brown & Root v. Donovan, 747 F.2d 1029 (5th Cir.
1084); Goldstein v. Ebasco Constructors, Inc., Case No.
86-ERA-36, Sec. Ord., Aug. 16, 1993. [1]   It is undisputed that Complainant
contacted the NRC only after the alleged adverse actions and his
decision to resign.  Accordingly, Complainant has not established
that he engaged in protected activity prior to the alleged
adverse actions, and cannot establish a prima facie case of
retaliatory adverse action under the ERA.  See Boyd v.
ITI Movats, Case No. 92-ERA-43, Sec. Fin. Dec. and Ord., June 7,
1994, slip op. at 3-4.
     SO ORDERED.

                            ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1]   The Brown & Root case was legislatively reversed by
the Comprehensive National Energy Policy Act (CNEPA) for cases
filed after the passage of that Act.  However, this case was
filed before CNEPA was enacted.  CNEPA also lengthened the time
for filing complaints to the ERA from 30 to 180 days.