DATE:   December 15, 1995  
CASE NO.:  95-ERA-00044

In the Matter of

MATTHEW T. BUENAFLOR

          Complainant

     v.

HOUSTON LIGHT & POWER COMPANY
          
          Respondent


                     RECOMMENDED DECISION AND ORDER
                DISMISSING THE COMPLAINT WITH PREJUDICE

     This case arises under the Energy Reorganization Act,
42 U.S.C. §5851 (the Act).

     Hearing on the complaint was initially scheduled to be
held before me on September 21, 1995.  Subsequently, the hearing
was re-scheduled to commence on December 12, 1995 after the
Complainant moved for a continuance so that he would have
additional time for discovery.

     On November 27, 1995 a telephone conference was conducted
during which the Complainant, acting pro se, stated
that, thus far, he had been unable to obtain the cooperation of
witnesses he needed to establish a prima facie case of
discrimination under the Act by the Respondent.  The Complainant
further stated that he did not desire to proceed with his
complaint if he continued to lack success in obtaining the
necessary witnesses.  At that time I suggested that the
Complainant continue his discovery and report his intentions in a
telephone conference scheduled for December 4, 1995.

     However, on December 3, 1995 the Complainant served, by
facsimile, a request "to drop the case."  

     On December 4, 1995 the Respondent moved for a dismissal
with prejudice, noting that it had filed a Motion for Summary 
[PAGE 2]
Decision on November 10, 1995.

     In Mosbaugh v. Georgia Power Company, Case No. 90-
ERA-58 (Sec'y Sept. 23, 1992), the Secretary held that a
complainant is entitled to unilateral, unconditional dismissal of
his complaint under the Act, in accordance with Rule 41(a)(1)(i)
of the Federal Rules of Civil Procedure, where the respondent has
not filed the functional equivalent of either an answer to the
complaint or a motion for summary judgment.  Where the respondent
has filed the functional equivalent of either an answer or a
motion for summary judgment, dismissal is appropriate under Rule
41(a)(2). Mosbaugh, supra.  In the instant case,
the Respondent's Motion for Summary Decision, filed on November
10, 1995, precludes the application of Rule 41(a)(1)(i).

     I find, under Rule 41(a)(2) of the Federal Rules of Civil
Procedure, that the complaint should be dismissed with prejudice.

                         RECOMMENDED ORDER

     The complaint of Matthew T. Buenaflor is dismissed with
prejudice.





                                                            

                              ROBERT D. KAPLAN
                              Administrative Law Judge


DATED:
Camden, New Jersey



NOTICE:  This Recommended Order and the administrative file
in the matter will be forwarded for review by the Secretary of
Labor, Room S-4309, Frances Perkins Building, 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. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).