DATE: March 12, 1990
CASE NO. 89-ERA-11

IN THE MATTER OF

RICHARD J. KAMIN AND
MARIE A. KAMIN,
    COMPLAINANTS,

    v.

HUNTER CORPORATION,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    Before me for determination are the Complainants' Motion o Rescind Letter of Withdrawal Dated 1-22-89 and Proceed with Complaint and a Motion for Remand filed by the Associate Solicitor for Fair Labor Standards as counsel for the Wage and Hour Administrator. These motions have been filed in response to my Order To Show Cause, issued on September 12, 1989, in which I directed the parties to show cause why Complainants, motion for withdrawal of their joint complaint should not be granted. Complainants responded by filing their motion to rescind. Respondent did not reply to my show cause order but, on January 31, 1990, filed a Response to Complainants' Motion to Rescind opposing Complainants' request on the ground that Complainants have failed to demonstrate that the discrimination they allege resulted from conduct protected under Section 210 of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1982). In its response, Respondent requests that I issue a final order finding that Complainants are not entitled to relief under the ERA. Under date of February 19, 1990, Complainants replied to Respondent's response urging that an investigation of Respondent's hiring practices be conducted.

    In my Order to Show Cause, I noted that "on the current record, it is not clear that Complainants have alleged claims

within my jurisdiction under the ERA, which does not extend to all employment practices of an employer but which is limited to discrimination resulting from conduct protected under Section 210." Order to Show Cause at 4. This conclusion was based in large part on the fact that, inasmuch as the Wage and Hour Division had concluded that Complainants were not protected by the ERA since they had never been employed by Respondent, the Wage and Hour Division had not conducted an investigation of Complainants' complaint. Respondent correctly points out that Complainants' motion to rescind contains no allegation constituting a violation of the ERA nor any information on which ERA coverage could be determined. Complainants, however, appear in this case pro se and cannot be held to the same standard for pleadings as if they were represented by legal counsel. For that reason, I deny Respondent's request that I find that Complainants are not entitled to relief under the ERA. Rather, in the interest of justice, I grant Complainants' motion to rescind their withdrawal of complaint, and grant the motion of the Associate Solicitor to remand this matter to the Wage and Hour Administrator for an investigation of Complainants' allegation of discrimination in accordance with 42 U.S.C. § 5851(a) and 29 C.F.R. § 24.4 (1989). Accordingly, this complaint is remanded to the Acting Wage and Hour Administrator¹ for investigation on a priority basis. 29 C.F.R. § 24.4(b).

    SO ORDERED

       Elizabeth Dole
       Secretary of Labor

Washington, D.C.

¹I take administrative notice that there presently is a vacancy in the Office of the Administrator, Wage and Hour Division, and that the Deputy Administrator is the Acting Wage and Hour Administrator.