Ballentine v. Tennessee Valley Authority, 91-ERA-23 (Sec'y Sept. 23, 1992)

USDOL/OALJ Reporter
Ballentine v. Tennessee Valley Authority, 91-ERA-23 (Sec'y Sept. 23, 1992)
DATE:  September 23, 1992
CASE NO. 91-ERA-23

IN THE MATTER OF

OGDEN L. BALLENTINE,

          COMPLAINANT,

          v.
     

TENNESSEE VALLEY AUTHORITY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                          FINAL DECISION AND ORDER
     Before me for review is the Decision Recommending Dismissal
(R.D.) of the Administrative Law Judge (ALJ) in this case arising
under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988).  The ALJ recommended granting Respondent's motion to
dismiss the complaint as untimely filed.  Each party filed a brief
before the Secretary.
     Under the pertinent provisions of the ERA and the
implementing regulations, a complainant is required to file any
complaint within thirty days of the alleged violation.  42 U.S.C. 
§ 5851(b)(1); 29 C.F.R. § 24.3(b) (1991).  It is
undisputed here that Complainant received formal written notice of
termination due to his color blindness on May 17, 1990, to be
effective June 17, 1990.  It is further agreed that on June 18,
1990, Complainant received oral notification from Respondent's Equal
Employment Opportunity (EEO) counselor that his termination was
extended for one week to determine if his handicap could be
accommodated.  Complainant's discharge was effective on June 25,
1990, and his complaint of discriminatory discharge was filed on
July 24, 1990.
     The ALJ's conclusion that the thirty-day period for filing
this complaint commenced on May 17, 1990, is in accordance with
the pertinent case law and prior decisions of the Secretary. 
See Delaware State College v. Ricks, 449 U.S. 250,
257-261 (1980); 
[PAGE 2]
McGarvey v. EG & G Idaho, Inc., Case No. 87-ERA-31, Sec.
Final Dec. and Order, September 10, 1990, slip op. at 2-4.  The
filing period commences on the date that Complainant is informed
of the challenged employment decision rather than at the time the
effects of the decision were ultimately felt. 
See,Howard v. Tennessee Valley Authority,
Case No. 90-ERA-24, Sec. Final Dec. and Order of Dismissal, July
3, 1991, slip op. at 2-3, aff'd sub nom.
Howard v. U.S. Department of Labor, 959 F.2d 234 (6th Cir.
1992).  In this case, Complainant received final and unequivocal
written notification of the challenged employment decision on May
17, and neither Complainant's subjective belief that his
termination might not become effective nor the possibility of an
EEO accommodation, alters the triggering date of the filing
period.  See English v. Whitfield, 858 F.2d 957,
961-962 (4th Cir. 1988); Janikowski v. Bendix Corp., 823
F.2d 945, 947 (6th Cir. 1987).
     I reject Complainant's argument that equitable tolling of the
filing period is warranted in this case, as the record does not
support a conclusion that Complainant was actively misled by
Respondent or coerced into not timely filing a claim.  See
English at 963; School District of the City of Allentown
v. Marshall, 657 F.2d 16, 19-21 (3rd Cir. l981);
Larry v. The Detroit Edison Co., Case No. 86-ERA-32,
Sec. Dec. and Order, June 28, 1991, slip op. at 12-19,
aff'd sub nom. The Detroit Edison
Co. v. Secretary, U.S. Department of Labor, No. 91-3737 (6th
Cir. 1992).
     Accordingly, the complaint is dismissed as untimely.
SO ORDERED.


                                   LYNN MARTIN
                                   Secretary of Labor
Washington, D.C.
UNITED STATES
DEPARTMENT OF LABOR

Office of Administrative Law Judges
