DATE: November 10, 1992
CASE No.: 92-ERA-57

In the Matter of:

SARAH C. THOMAS,
    Complainant,

    v.

ARIZONA PUBLIC SERVICE COMPANY/
PALO VERDE NUCLEAR GENERATING
STATION,
    Respondent.

Appearances:

DAVID K. COLAPINTO, Esquire
    For the Complainant

THOMAS J. KENNEDY, Esquire
    For the Respondent

Before: JULIUS A. JOHNSON
    Administrative Law Judge

    This matter arises from a complaint filed under the employee protection provision of the Energy Reorganization Act of 1914 (hereafter, "ERA") 42 U.S.C. § 5851 (1992), and the corresponding regulations set out at 29 C.F.R. Part 24 (1992).

    The Administrator of Wage and Hour Division, Employment Standards Administration, United States Department of Labor (hereafter, the "Administrator") notified complainant Sarah C. Thomas, by letter September 8, 1992 that her complaint was deemed to be without merit. On September 17, 1992, pursuant to 29 C.F.R. § 24.4(d)(2), complainant requested a hearing before this office. Respondent's counsel filed a Notice of Appearance October 19, 1992.

    On October 21, 1992, complainant filed a Notice of Voluntary Dismissal, requesting that her complaint be dismissed in accordance with Fed. R. Civ. P. 41(a)(1)(i). Respondent filed its objection to this motion November 2, 1992. Complainant filed her Reply to Respondent's Response to Notice of Voluntary Dismissal November 5, 1992.

    Under Fed. R. Civ P. 41(a)(1)(i), "an action may be dismissed by the plaintiff without order of court by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment."

    According to the Secretary of Labor, Fed. R. Civ. P. 41(a) applies to voluntary dismissals of ERA complaints. Stites v. Houston Lighting & Power Co., 87-ERA-41, slip op. at 2 (Sept. 29, 1989). "The Secretary has held that under the ERA, a complainant is entitled to unilateral, unconditional dismissal of his [or her] ERA complaint in accordance with Rule 41(a)(1)(i), where the respondent has not filed the functional equivalent of either an answer to the complaint or a motion for summary judgment." Mosbaugh v. Georgia Power Co., 90-ERA-58, slip op. at 2 (Sept. 23, 1992). For purposes of Fed. R. Civ. P. 41(a)(1)(i), a statement of position filed before the Administrator is not the functional equivalent of an answer. Id. at 3.

    Respondent has filed neither an answer nor a motion for judgment in this matter with this office. Therefore, in accordance with Fed. R. Civ. P. 41(a)(1)(i), complainant is entitled to unilateral and unconditional dismissal of her ERA complaint.

    Pursuant to Complainant's Notice of Voluntary Dismissal, this matter is hereby DISMISSED WITHOUT PREJUDICE.

       JULIUS A. JOHNSON
       Administrative Law Judge

JAJ:rps:koj