1 The Secretary delegated his
authority to adjudicate this
case to the Deputy Secretary, formerly called the Under Secretary.
Order of Recusal, March 31, 1986.
2 Complainant also filed, on
September 10, 1986, Complainant's
Motion For Leave to File the Attached Brief to Respondent's
Memorandum to Dismiss Nunn's Complaint on the Basis of Statute
of Limitations. Duke Power opposed this motion. See Respondent
Duke Power Company's Opposition to Complainant's Motion For
Leave to File His Seventh Brief. By Order of October 10, 1986,
I accepted Complainant's brief. On November 5, 1986, Duke Power
filed Respondent Duke Power Company's Reply to Complainant's
Opposition to the Dismissal of His Complaint on Timeliness Grounds.
3 I reject Duke Power's argument
that this issue is not timely
raised because it was not mentioned in the complaint filed by
Complainant with the Department of Labor. See Respondent's
brief in support of ALJ decision at 27-28. The failure to
allege in the complaint the elements which establish a
violation of section 5851 is not a valid basis for granting
summary decision. Richter v. Baldwin Associates, Case No.
84-ERA-9 through 12, (March 12, 1986) slip op. at 9-11.
4 In so ruling, I do not hold that
mere contact with the Palmetto
Alliance or with GAP constitutes protected activity.
5 I do not agree with Duke Power
that the statement by the
Supreme Court in Ricks, 449 U.S. at 261, that "the existence
of careful procedures to assure fairness in the . .
decision should not obscure the principle that limitations
periods normally commence when the employer's decision is
made", compels a finding that the Complainant's 'removal
from service" constituted the termination. It is clear that
plaintiff Ricks had been "abundantly forewarned" that he was
being denied tenure, but the Supreme Court did not suggest
that the limitations period would begin to run from any date
earlier than when the Board of Trustees formally voted to
deny tenure to Ricks. See, 449 U.S. at 262 n. 16 and 17.
6 In this connection, the ALJ
should permit such additional
discovery as is necessary and appropriate.
7 I also reject Complainant's
contention that Duke Power is
estopped from asserting the protection of Brown and Root. Whether
internal complaints are a protected activity under section 5851
is not dependent on the information imparted by an employer to