Tyree v. United Parcel Service, 2004-STA-6 (ALJ Dec. 16, 2003)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue Date: 16 December 2003

CASE NO.: 2004-STA-6

In the matter of:

CHARLES TYREE
    Complainant

    v.

UNITED PARCEL SERVICE    
Respondent

   The above-captioned case is scheduled for hearing on December 18, 2003, in Richmond, Virginia. The Complainant filed a Request to Withdraw on December 12, 2003, requesting that the case be dismissed with prejudice. Counsel for the Respondent does not object to the request. An Order Canceling Hearing was issued on December 16, 2003.

   A complainant.s submission of a Notice of Voluntary Dismissal, together with the respondent.s written response that it does not contest the complainant.s request, may be deemed to constitute a stipulation of dismissal by the parties, satisfying the requirements of Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure. See Kleiman v. Flordia Powder and Light Co., 91-ERA-50 (Sec.y Feb 21, 1992), slip op. at 1-2.

   A voluntary withdrawal of a Surface Transportation Assistance Act whistleblower complaint is treated under the regulations as a withdrawal of objections to the Secretary's preliminary findings or preliminary order. When such a withdrawal occurs, the Regional Administrator.s preliminary findings on behalf of the Secretary are affirmed, and the Administrative Law Judge's order becomes the final order in the case. 29 C.F.R. § 1987.111(c); Hall v. Yellow Freight Systems, 93-STA-24 (Sec.y July 1, 1993). Accordingly,

   IT IS ORDERED that the Regional Administrator's findings on behalf of the Secretary are hereby AFFIRMED and the above-captioned claim is DISMISSED WITH PREJUDICE.

      GERALD M. TIERNEY
       Administrative Law Judge