DATE: April 27, 1992

CASE NO: 91-ERA-00054

IN THE MATTER OF

DAVID L. LATSHAW
    Complainant

    v.

TENNESSEE VALLEY AUTHORITY
    Respondent

   This proceeding is before this Court under Section 10 of the Energy Reorganization Act of 1974, 420 U.S.C. § 5851 (1988) (ERA).

   The complainant, through his counsel, filed two complaints of discrimination against Tennessee Valley Authority (TVA). The first complaint was filed on December 5, 1990. The second was filed by complainant's counsel on May 31, 1991. Pursuant to the Court's Pre-Hearing Statement Order of October 1, 1991, the parties filed their Joint Pre-Hearing Submission outlining therein the issues to be resolved by this Court. Both complaints have been challenged by the respondent's respective motions which this Court ruled upon in its order issued on April 3, 1991 which

reads as follows:

1) that the complaint of David L. Latshaw filed on May 31, 1991 is DISMISSED.

2) Respondent's Motion to Dismiss the complaint filed on May 31, 1991 is GRANTED.

3) Respondent's Motion for Partial Summary Judgement as to the complaint filed on December 5, 1990 is DENIED.

4) The Court's rulings in this order will be included in the Recommended Decision and Order to be issued by this Court after the hearing is held on the merits of this case, now scheduled for April 28, 1992.

   A hearing in this matter has been scheduled for April 28, 1992 in Knoxville.

   Now come the parties with their respective counsel and file a Stipulation of Voluntary Dismissal which reads as follows:

Pursuant to Rule 41(a)(1), Fed. R. Civ. P., and 29 C.F.R. § 18.1(a) (1991), as evidenced by the signatures below, complainant and respondent stipulate to the dismissal of complainant's complaints without prejudice, notwithstanding Administrative Law Judge Kichuk's Order on Respondent's Motion for Partial Summary Judgment, each party to bear its own costs, expenses, and attorney's fees. This withdrawal does not involve a settlement of complainant's claims.

   The stipulation is signed by the claimant, and his attorney, and the attorney for respondent Tennessee Valley Authority.

   The Court finds that both complainant and respondent are proceeding in this matter with and upon advice of their respective counsel and agree that the complaints of complainant David L. Lathsaw shall be dismissed without prejudice, notwithstanding this Court's Order issued on April 3, 1992 on Respondent's Motion for Partial Summary Judgment, Motion to Dismiss and or for Summary Judgment. The parties agree that the

dismissal shall operate as a withdrawal of the instant action without effecting settlement of the complainant's claims.

   It is well settled that dismissals of ERA complaints are covered by Rule 41 of the Federal Rules of Civil Procedure. (F.R.C.P.) Rainey v. Wayne State University, Case No. 90-ERA-40, See Order to Show Cause, 1-07-91, slip, op, at 3 (citing Nolder v. Kaiser Engineers, Inc., Case No. 84 ERA-5, Sec Final Dec. and Order, 6-28-85, slip op at 6-7). See Order of Dismissal February 27, 1991.

   The Court notes that each party has agreed "to bear its own costs, expenses and attorney's fees." The Court finds that the stipulation expresses a dismissal of the action by the parties which satisfies the requirements of Rule 41 (a) (1) (ii) of the F.R.C.P. See Hall v. Teledyne Wah Chang Albany, Case No. 91-ERA-30, Sec. Final Order of Dismissal, Aug. 30, 1991, slip op. at 1-2; Nunn v. Duke Power Co., Case No. 84-ERA-27, Sec. Order of Dismissal, Sept. 29, 1989, slip op. at 3-4; Hooks v. Transportation Services, Inc., Case No. 88-STA-7, Sec. Final Order of Dismissal, June 24, 1988, slip op. at 2.

   Accordingly, pursuant to Rule 41 (a)(1)(ii), the complaints of David L. Latshaw in the case are dismissed without prejudice subject to the Rulings of this Court issued in its order April 3, 1992.

IT IS ORDERED that

1) that the complaint of David L. Latshaw filed on May 31, 1991 is DISMISSED.

2) Respondent's Motion to Dismiss the complaint filed on May 31, 1991 is GRANTED.

3) Respondent's Motion for Partial Summary Judgment as to the complaint filed on December 5, 1990 is DENIED.

4) Both complaints of David L. Latshaw filed in this case be DISMISSED without prejudice.

5) The hearing scheduled for April 28, 1992 has been cancelled by separate order of this Court issued on April 23, 1992.

CLEMENT J. KICHUK
Administrative Law Judge