Case No: 84-TSC-1

IN THE MATTER OF

ARTHUR GRAY MAYO,
    Complainant

    v.

BURROUGHS-WELLCOME COMPANY,
    Respondent

   On August 29, 1983; Arthur Gray Mayo ("complainant") filed a complaint against Burroughs-Wellcome Company ("respondent"), alleging that he was fired from his job for reporting a health hazard regarding the manufacture of a drug. The complaint was filed under the provisions of the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq. ("the Act"). The complaint was denied by the Assistant Area Director of the Employment Standards Administration. Complainant filed a timely request for a bearing, which was then scheduled for January 4, 1984 in Tarboro, North Carolina.

   On December 9, 1983, respondent filed a motion for summary judgment. Citing Section 2602 (2) (B) (vi) of the Act, respondent contended that the complaint does not fall within the provisions of the Act. Section 2602 (2)(B)(vi) excludes drugs manufacturerd, processed or distributed in commerce from coverage under the Act. It is respondent's contention that, since both parties agree that the alleged violation concerned a drug, summary judgment in its favor is appropriate.

   Under Section 18.40 of the Rules of Practice applicable to hearings before this office, summary judgment is appropriate when "there is no genuine issue as to any material fact..." Under the circumstances, respondent's motion seems appropriate. It is hard to see how this case can fall within the coverage of the Act, since drugs are specifically excluded. Therefore,

    Complainant is ORDERED TO SHOW CAUSE why this case should

not be dismissed. Complainant shall file a response to this order, with a copy to the respondent, no later than December 30, 1983.¹

    IT IS FURTHER ORDERED that the hearing scheduled for January 4, 1984 is cancelled pending a decision on respondent's motion for summary judgment.

       JEFFREY TURECK
       Administrative Law Judge

DATED: 13 DEC 1983
WASHINGTON, D.C.

JT/ebf

¹*Due to the need to expedite this proceeding, the provisions of section 18.4(c) of the Rules of Practice extending the time to file documents under certain conditions shall not be applicable in this case. The response to this order shall be filed no later than December 30, 1983.