Case No.: 92-TSC-1
OWCP No.: 91 106 07990

In the Matter of:

Anthony Spangenberger
    Complainant

    against

Briggs Associates, Inc.
    Respondent

    On August 5, 1991 Complainant filed a Complaint with the Wage and Hour Division of the U.S. Department of Labor alleging that Briggs Associates, Inc., his employer, had violated the Toxic Substance Control Act. An investigation was then conducted and Corey H. Surett, District Director, Wage and Hour Division, by letter dated August 30, 1991, advised Complainant that the "investigation did not verify that discrimination was a factor in the actions comprising your complaint" and that Complainant's "termination was found to have been motivated upon insubordination, i.e., repeated refusal to perform job duties as directed by the firm's management."

    Complainant timely appealed the denial of his complaint and the matter, having been docketed at the Boston District on October 10, 1991, was initially scheduled for trial in October of 1991 and then rescheduled for December of 1991. The trial was postponed twice at Complainant's request and the parties thereafter requested the opportunity to resolve the matter voluntarily. Subsequently, the parties advised that the complaint would be withdrawn with prejudice by Complainant. However, despite repeated requests, the appropriate letter has not been filed with this Court as of this date. An Order to Show cause was issued on September 3, 1992 and the parties were directed to file the appropriate letter. Again no response was filed. The parties were further advised that, absent

the filing of such request, that this appeal filed by the Complainant would be DISMISSED WITH PREJUDICE, pursuant to 29 C.F.R. SS 24.5 (e) (4) (B) (ii), and in such event, the parties were further advised that the August 30, 1991 letter from the District Director, Employment Standards Administration, Wage and Hour Division, would be adopted by this Administrative Law Judge as the final decision and order in this case. In this regard, see Snow v. TNT Red Star Express, Inc., 91-STA-44 (Sec'y Mar. 13, 1992).

    Accordingly, as the parties have not favored this Court with a response to the Order to Show Cause as of this date, and pursuant to the Secretary's Final Decision and Order in Mysinger v. Rent-a- Driver, 90-STA-23, OAA, Vol. 4, No. 5, p. 147 (Sept. 21, 1990), it is determined that the complaint filed by Complainant shall be DISMISSED WITH PREJUDICE.

    Accordingly, I reinstate, affirm and adopt, as unopposed, the Secretary's Preliminary Findings, dated August 30, 1991, and issued by Corey H. Surett, District Director, U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, which dismissed the complaint as without merit.

    It is therefore ORDERED that the complaint filed herein by Complainant shall be, and the same hereby is, DISMISSED WITH PREJUDICE pursuant to 29 C.F.R. SS 24.5 (e) (4) (4) (B) (ii).

       DAVID W. DI NARDI
       Administrative Law Judge

Dated: OCT 10 1992

Boston, Massachusetts

DWD:las