Date Issued: July 23, 1996
Case No.: 96-TSC-7

In the Matter of

ODIS D. STEWARD, JR.

Complainant

CITY OF WACO, TEXAS

Respondent

This matter arises under the Toxic Substances Control Act of 1986 (TSCA), 15 U.S.C. §§ 2641, et seq., as amended, and the regulations promulgated thereunder at 29 C.F.R. Part 24 which are employee protective provisions of TSCA.

On March 18, 1996, Odis D. Steward, Jr. (Complainant) filed a Complaint with the U.S. Department of Labor, Occupational

Safety and Health Administration, alleging a discriminatory discharge by his Employer, City of Waco, Texas, (Respondent). On April 24, 1996, the Occupational Safety and Health Administration notified Complainant that its investigation disclosed that the complaint had been untimely filed, no extenuating circumstances existed which would excuse such untimeliness, and his complaint could not be substantiated. On April 29, 1996, Complainant timely requested a formal hearing before this office. On June 16, 1996, the parties waived the time requirements applicable to this case.

On July 10, 1996, Complainant filed a Motion To Dismiss Without Prejudice. Complainant represents that the matter in controversy, i.e., his alleged discriminatory discharge, has been consolidated with issues pending in Cause No. 94-1717-3 in the 74th Judicial District Court of McLellan County, Texas, filed under the auspices of the State of Texas "whistleblower" protective provisions. Thus, Complainant's Motion to Dismiss is not the result of a settlement agreement, but is based on a voluntary decision to proceed in another forum under similar protective provisions at the state level.

On July 16 and July 23, 1996, Respondent advised (in writing) that it had no objection to the Complainant's Motion to Dismiss without prejudice. Thus, the parties have agreed to the dismissal of this case without prejudice. Accordingly, the only issue remaining is whether dismissal of this matter is proper.

Voluntary dismissals of Toxic Substance Control Act (TSC) complaints are governed by Rule 41 of the Federal Rules of Civil Procedure. Where Respondent states that it does not oppose a voluntary dismissal, the parties in "whistleblower" cases have been held to stipulate to dismissal within the meaning of Rule 41(a)(1)(ii). See Nunn v. Duke Power Co., Case No. 84-ERA-27, Sec. Order of Dismissal, (Sept. 29, 1989). Rule 41(a)(1)(ii) is applicable in the instant case because Respondent has filed an answer to the pending complaint and the parties have stipulated to the dismissal of this case. Under Rule 41(a)(1)(ii), an action may be dismissed pursuant to the stipulation of the parties.

Accordingly, it is RECOMMENDED that this matter be DISMISSED without prejudice pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure.

In view of the foregoing, the hearing scheduled for August 13, 1996, is hereby cancelled.

ORDERED this 23rd day of July, 1996, at Metairie, Louisiana.

LEE J. ROMERO, JR.

Administrative Law Judge

NOTE: This Recommended Order and the administrative file in this 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 Administrative Review Board 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).