DATE: JUL 18 1991

IN THE MATTER OF

TELEDYNE WAH CHANG ALBANY
    Respondent

    v.

CHRIS HALL
    Complainant

CASE No.: 91-ERA-30

   This matter arises under the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. § 5851 and the regulations issued thereunder at 29 C.F.R. Part 24.

   On January 30, 1991, Chris Hall (Complainant) filed a, Complaint with the Department of Labor's Wage and Hour Division, alleging discrimination by his employer, Teledyne Wah Chang Albany (Respondent). On February 28, 1991, Wage and Hour notified Respondent that its investigation disclosed alleged discrimination against Complainant in violation of the ERA. Wage and Hour requested that Respondent reimburse Complainant for certain expenses and lost wages as a result of its findings. Respondent timely requested a hearing before this office. On March 25, 1991, the parties filed a waiver of the time requirements applicable to this case.

   On April 5, 1991, Complainant notified this office of his intent to withdraw the Complaint, and filed a Motion to Dismiss. Complainant's Motion to Dismiss is not the result of a settlement agreement, but is based on a voluntary decision to withdraw his Complaint. By letter filed April 29, 1991, Respondent stated that it had no objection to the withdrawal but requested that dismissal be with prejudice. Complainant then filed a letter on May 7, 1991, objecting to Respondent's request for dismissal with prejudice. By letter filed the same date, Respondent stated that it was willing to agree that the complaint be dismissed without prejudice.

   Complainant requests a recommended order dismissing this case. The parties having agreed to dismissal of this case without prejudice, Respondent's request for dismissal with prejudice is now moot. The only issue remaining for this office to decide is whether dismissal is proper in this case.

   Voluntary dismissals of ERA complaints are governed by Rule 41 of the Federal Rules of Civil Procedure. See Nolder v. Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec. decision, June 28, 1985, slip op. at 6-8. Where the Respondent states in a separate filing that it does not oppose a voluntary dismissal, the parties have been held to stipulate to dismissal within the meaning of Rule 41(a)(1)(ii). See Nunn v. Duke Power Co., Case No. 84-ERA-27, Sec. Order of Dismissal, Sept. 29, 1989, slip op. at 3-4; Ryan v. Pacific Gas & Electric Co., Case No. 87-ERA-32, Sec. Order of Dismissal, Aug. 9, 1989, slip op. at 2. Because the Respondent answered the Complaint by requesting a hearing, and because the parties have stipulated to the dismissal of this case, Rule 41(a)(1)(ii) applies. Under the Rule, an action may be dismissed pursuant to the stipulation of the parties. Fed. R. Civ. P. 41(a)(1)(ii).

   Accordingly, it is RECOMMENDED that this matter be DISMISSED without prejudice pursuant to Rule 41(a)(1)(ii).

       JOHN M. VITTONE
       Chief Judge

JMV/RD/mb