Office of Administrative Law Judges 525 Vine Street, Suite
900 Cincinnati, OH 45202
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Date: August 7, 2000
Case No.: 2000-STA-0008
In the Matter of:
PATRICK N. CLEMENT,
Complainant
v.
MILWAUKEE TRANSPORT SERVICES, INC.,
Respondent
ORDER OF DISMISSAL
This comes before the undersigned on a Motion To Intervene And Motion To
Dismiss Without Prejudice filed by the Assistant Secretary on July 10, 2000. The Motion requests
withdrawal of the November 19, 1999 Findings of the Assistant Secretary and an Order Dismissing
this action without prejudice.
Patrick N. Clement, Complainant, filed a complaint against Milwaukee
Transport Services, Inc., alleging that on February 4, 1999, he was terminated by the Respondent in
violation of the Surface Transportation Assistance Act of 1982 (49 U.S.C. § 2301, et
seq.). Secretary's Findings were issued on November 1, 1999, in which the complaint was found
to be untimely filed and subsequently dismissed. Complainant objected to the findings and requested
a hearing before an Administrative Law Judge. The case was assigned to the undersigned for
hearing. A conference by telephone was held on December 17, 1999, during which the parties
requested that a hearing not be scheduled until after the Respondent had an opportunity to file a
Motion to Dismiss based on untimely filing of the complaint by Mr. Clement.
After consideration of the Motion to Dismiss and the briefs filed by the parties,
an Order was issued on June 2, 2000, in which I found that certain letters by the Complainant were
sufficient to constitute filings under § 1978.102 and because the filings were made within 180
days of the Complainant's February 4, 1999 termination, the complaint was timely. The Motion to
Dismiss was denied.
[Page 2]
By letter filed June 15, 2000, the Respondent requested that the case be
remanded to the Secretary so that findings on the merits could be issued as required by 29 C.F.R.
§ 1978.104. In his Answer to the Respondent's Reply Brief, Complainant requested that the
Secretary's Findings be overturned, an investigation ordered, and a hearing scheduled. The request
for remand was granted so that an investigation could be completed as contemplated by 29 C.F.R.
§ 1978.104. An Order Of Remand was issued on June 20, 2000. A request by the
Complainant filed on June 22, 2000, to amend the Order of Remand was denied by Order dated June
30, 2000.
Upon consideration of the Motion of the Assistant Secretary and no objection
having been filed, the Motion will be granted.
ORDER
It is, therefore,
ORDERED that the Motion To Intervene And Motion To Dismiss Without
Prejudice filed by the Assistant Secretary on July 10, 2000, is hereby GRANTED. The Order of
Remand dated June 22, 2000, is rescinded. The Motion to Withdraw the November 1, 1999 findings
of the Assistant Secretary is Granted. This action is hereby Dismissed Without Prejudice to allow
for an investigation of the complaint. Upon completion of the investigation, the Assistant Secretary
shall issue written findings in accordance with 29 C.F.R. § 1978.104.
