In the Matter of:          
                           
ROBERT TYNDALL,              
                                                                                      Date:  January 25, 1995       
       Complainant,        
                                                                                      Case No.:  95-CAA-5
       v.                  
                           
U.S. ENVIRONMENTAL      
PROTECTION AGENCY,     
                           
       Respondent.


RECOMMENDED DECISION AND ORDER DISMISSING CLAIM


       Upon consideration of the Motion to Dismiss, filed by
Respondent, for Complainant's filing of a second claim alleging
retaliatory discrimination pursuant to the Clean Air Act, 42 U.S.C.
§ 7622 ("CAA") and the applicable regulations at 29 C.F.R.
section 24; and it appearing that the first claim, alleging the
same material issue, is pending before the Secretary of Labor, it
should be granted.

       On March 3, 1993, Complainant filed his first claim against
Respondent alleging retaliatory discrimination for protected
activities in investigating official misconduct in contract
procurement under CAA.  Administrative Law Judge Robert Mahony
denied this claim, ruling that any difficulties that he may have
encountered during his investigation did not constitute a violation
of the whistleblower provisions of CAA.  This Recommended Decision
and Order is currently before the Secretary of Labor awaiting final
decision.  

       Complainant's second claim again alleges discrimination
against him because of his protected activity.  The allegations in
this complaint are premised on continuing violations, effects of
prior discrimination, and a continuing hostile work environment. 
The Wage and Hour Division rejected this complaint as an
inappropriate attempt to circumvent the appeals process.  

       The merits of this second claim will necessarily be affected 
[PAGE 2]
by the Secretary's determination of the first complaint because
they are both based on the same theory of discrimination. 
Therefore, any consideration of this issue would be premature at
this juncture.  Accordingly, Respondent's motion is granted,
dismissing this second claim without prejudice, pending the
Secretary's decision of this matter in the prior case. 
Additionally, Complainant's motion for a protective order regarding
the hearing date is denied as it is without merit.

Recommendation

       It is hereby

       ORDERED that this claim is dismissed.

       The scheduled hearing on February 28, 1995 in this matter is
cancelled.


                                     _____________________________
                                     JULIUS A. JOHNSON
                                     Administrative Law Judge



JAJ:cy:koj   



NOTICE:  This Recommended Decision and Order and the administrative
file in this matter will be forwarded for review by the Secretary
of Labor to the Office of Administrative Appeals, U.S. Department
of Labor, Room S-4309, Frances Perkins Bldg., 200 Constitution
Avenue, N.W., Washington, D.C. 20210.  The Office of Administrative
Appeals has the responsibility to advise and assist the Secretary
in the preparation and issuance of final decisions in employee
protection cases adjudicated under the regulations at 29 C.F.R.
Part 24 and 1978.  See 55 Fed. Reg. 13250
(1990)