Date: December 13, 1995




CASE NO.  95-WPC-6

IN THE MATTER OF

     DOUG GRACE AND CLAUDE LAWRENCE
               Complainants


        v.

     CITY OF ANDALUSIA WASTE WATER
     TREATMENT FACILITY, 
               Respondent


         RECOMMENDED DECISION AND ORDER - DISMISSING COMPLAINT

 Respondent has moved for dismissal on summary decision of the
complaints filed by complainants herein under the Employee
Protection provisions of the Federal Water Pollution Control Act
codified at 33 U.S.C. §1367.  The basis for seeking dismissal
is that such complaints were not filed within thirty days of the
alleged violations as required by 33 U.S.C. §1367(b).

     The facts pertinent to the resolution of this motion are
undisputed.  The two complainants were terminated by Respondent
effective February 1, 1995, and both received notice of their
proposed termination prior to that date.  While complainants
pursued their administrative appeals of their terminations through
the city's administrative process, they did not file their
complaints alleging their discriminatory discharge under 33 U.S.C. 
[PAGE 2]
§ 1367 until April 14, 1995.

     Complainants make two arguments in opposition to the dismissal
of their claims.  First, they argue for a tolling of the thirty day
period for filing their complaints on the basis that they
mistakenly pursued their claim in the wrong forum.  Second, they
argue that the city's failure to reinstate complainants after
complainants established in their administrative appeals that their
terminations were in retaliation of their protective activities,
constituted an act of discrimination under 33 U.S.C. § 1367
that is separate and distinct from the initial retaliatory
discharge.  Since complainants filed their complaints herein within
thirty days after they received notice that the city had denied
their administrative appeals, complainants argue that they timely
filed their complaints herein.

     Complainant's first argument that they mistakenly pursued
their claims in the wrong forum is unsupported by proof and is,
therefore, insufficient to warrant the tolling of the thirty day
limitation period.  While complainants may very well have relied
upon the same factual circumstances in their administrative appeals
of their termination as they do here, namely, that they were
terminated for having engaged in protected activity, it is doubtful
that they claimed entitlement to reinstatement in their
administrative appeal based upon the same statutory remedy provided
in 33 U.S.C. § 1367.  Even if they did raise the precise
statutory claim in that forum, a mere allegation, unsupported by
proof is insufficient to defeat summary decision.

     When a motion for summary decision is made and supported which
is the case here, "a party opposing the motion may not rest on mere
allegations or denials of such pleading.  Such response must set
forth specific facts showing that there is a genuine issue of fact
for the hearing."  29 C.F.R.  18.40(c).  Here, complainants offered
no proof in support of their first argument and rely solely upon
their unsupported allegation.  Such unsupported allegation is
insufficient to defeat summary decision and complainants first
argument must, therefore, be rejected.

     Complainant's second argument that the failure to rectify the
claimed illegal act in the administrative appeal constitutes a
separate act of discrimination is also rejected.  First, such
theory of violation is contrary to the holding in Chardon v.
Fernandez, 454 U.S. 6 (1981).  Furthermore, this argument
constitutes a impermissible expansion of the theory of violation 
contained in the complaint filed April 14, 1995, on behalf of
complainants.  The claimed illegal act which is the gravamen of 
[PAGE 3]
that complaint is the termination of complainants effective
February 1, 1995.

     Thus, the proof offered in support of the pending motion
establishes that complainants filed their complaint alleging
violations of 33 U.S.C. § 13.67 more than thirty days after
the alleged violations.  While the thirty day limitations period
provided by that statute is not jurisdictional and is subject to
equitable tolling, complainants have failed to show that the
equitable tolling of the limitations period would be appropriate. 






                         RECOMMENDED ORDER


     IT IS THEREFORE ORDERED that the complaints filed herein by
the complainant's be dismissed as untimely.





                              ___________________________________
                              QUENTIN P. MCCOLGIN
                              ADMINISTRATIVE LAW JUDGE



Metairie, Louisiana
QPMC:daq