U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
Date: December 11, 1987
Case No. 84-ERA-27
IN THE MATTER OF
HOWARD SAMUEL NUNN, JR.,
Complainant
v.
DUKE POWER COMPANY,
Respondent
ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
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
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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.
Whether Summary Judgment Should Be Granted
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
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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.1Id. at 262, 101
S.Ct., at 505.
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.