DATE: March 21, 1994
CASE NO: 93-ERA-11
IN THE MATTER OF
GALE K. SYLVESTER
COMPLAINANT,
v.
ABB/POWER SYSTEMS ENERGY
SERVICES, INC.
RESPONDENT.
CASE NO. 93-ERA-51
IN THE MATTER OF
GALE K. SYLVESTER
COMPLAINANT,
v.
BOSTON EDISON COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL ORDER OF DISMISSAL
Before me for review is the November 3, 1993, Recommended
[PAGE 2]
Order of Dismissal (R.O.D.) of the Administrative Law Judge (ALJ)
in these consolidated cases arising under the employee protection
provision of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988). The R.O.D. dismisses both
of the above-captioned cases without prejudice on the basis of
Complainant Sylvester's October 8, 1993, "Notice of Voluntary
Dismissal" requesting, through counsel, "dismissal of both
complaints pursuant to Rule 41 of the Federal Rules of Civil
Procedure (Fed. R. Civ. P.), [1] and orders of the Secretary of
Labor governing procedures for voluntary dismissal of complaints
in cases arising under the employee protection provisions of the
ERA". R.O.D. at 2. [2] Under the ERA's implementing
regulations, the ALJ's recommended order is now before me for
review. 29 C.F.R. § 24.6 (1992).
Based upon his finding that, "[n]either respondent has filed
any response to the Notice of Voluntary Dismissal", the ALJ held
that the requirements for a dismissal under Rule 41(a)(l)(i) had
been satisfied and recommended that I enter a final order
dismissing both cases without prejudice.
Having reviewed the records in this matter as well as the
ALJ's recommended order, I agree with his analysis. Accordingly,
the consolidated complaints are DISMISSED without prejudice.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Rule 41(a)(l)(i) provides for dismissal of an action
"by filing a notice of dismissal at any time before service
by the adverse party of an answer or of a motion for summary
judgment, whichever first occurs. . . . Unless otherwise stated
in the notice of dismissal . . . the dismissal is without
prejudice. . . ." SeeNolder v. Kaiser Engineers,
Inc., Case No.
84-ERA-5, Sec. Order of Remand, June 28, 1985, slip op. at 7-8,
holding that the filing of a request for hearing by the employer
is the equivalent of an answer for purposes of Rule 41. In the
cases at issue, the Complainant filed separate requests for
hearings following each preliminary determination by the
Assistant District Director (Tauton, Massachusetts) of the Wage
and Hour Division.
[2] It is well established that voluntary dismissals of ERA
complaints are governed by Rule 41 of the FRCP. See e.g.,
Mosbaugh v. Georgia Power Co., Case No. 90-ERA-58, Sec.
Dec. and Order, Sept. 23, 1992; Mark E. Klienman v. Florida
Power and Light Company, Case No. 91-ERA-00050, Sec. Fin.
Ord. of Dismissal, Feb. 21, 1992, slip op. at 2.
