DATE ISSUED: August 30, 1985
CASE NO.: 85-SWD-4

In the Matter of

DONALD W. CHASE

    v.

Buncombe County, NC
Department of Community
Improvement

   Complainant originally filed for relief under the Solid Waste Disposal Act (hereinafter referred to as the Act), 42 U.S.C. § 6971 following the termination of his employment by Respondent in 10/84. The parties executed a settlement agreement on 12/10/84 and an Order Approving Settlement Agreement was issued by Administrative law Judge John C. Bradley on 12/28/84.

   Complainant filed a second complaint under the Act on 7/9/85 after Respondent refused to rehire him. The Wage and Hour Division of the Employment Standards Administration notified Complainant by letter dated 7/15/85 that it could take no action in the matter because his first complaint was dismissed with prejudice upon settlement and the Act provides no basis of complaint for an applicant for employment. Complainant appealed the ruling and the case was referred to the office of Administrative Law Judges on 7/22/85. A Pre-Hearing Order and Notice of Hearing was issued on 7/30/85, scheduling the matter to be heard on 8/22/85 in Asheville, NC, Respondent filed a Motion on 8/12/85 asking that the above complaint be dismissed based on lack of jurisdiction and failure to state a claim upon which relief may be granted. An Order to Show Cause why the complaint should not be dismissed was issued on 8/16/85. Complainant's response to the Pre- Hearing order was received by this office subsequent to the issuance of the Order to Show Cause. Complainant requested by telephone on 8/18/85 that his reply to the Pre- hearing Order also be considered his response to the Order to Show Cause.

    When considered in conjunction with his second complaint under the Act, Complainant's response appears oxymoronic, in that he concedes that he was not an employee of Respondent when he applied for a position but was not rehired on or about 6/10/85. He therefore concedes a lack of jurisdiction under the Act in regard to the second complaint because Section 6971 provides protection to an employee who institutes or testifies in any proceedings under the Act.

   Respondent's failure to hire complainant was not a violation of the prior settlement agreement because that agreement did not provide for Complainant's reinstatement by Respondent. It provided only that, upon request, Respondent would give a neutral reference as to Complainant's performance as a county employee.

   Complainant's response also refers to other alleged violations of the settlement agreement by Respondent unrelated to the violation were not a part of his second complaint, and, therefore, cannot be addressed in this Order.

   Thus, Complainant has failed to show why this complaint should not be dismissed for lack of jurisdiction or for failure to state a claim upon which relief may be granted.

   The Complaint of Donald W. Chase for relief under the Solid Waste Disposal Act, 42 U.S.C. § 6971 is hereby dismissed.

       JOHN C. BRADLEY
       Administrative Law Judge

JCB/SWC/11k