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Case No.: 2003-TSC-0007
In the Matter of:
WALKER WELLS and
BRUCE BRUMMEL,
Complainants
v.
NICOR GAS COMPANY,
Respondent
RECOMMENDED ORDER OF DISMISSAL
This proceeding arises under § 23(a) of the Toxic Substances Control Act of 1986 (TSCA), 15 U.S.C. §§ 2622, et seq., as amended, and the regulations promulgated thereunder at 29 C.F.R. Part 24, which are the employee protective provisions of the TSCA.
The Complainants requested a hearing based upon the Secretary's findings that the Complainants. allegations of discrimination against the Respondent in violation of the employee protective provisions of the TSCA were not meritorious.
On April 9, 2004, the Complainants filed Complainants' Motion to Withdraw and Dismiss Case. The Motion is signed by Michael Kaczmarek, attorney for the Complainants. No objection has been filed to the Motion.
Neither the TSCA nor its implementing regulations make provision for the dismissal of a complaint. Therefore, where a Complainant in a case arising under the TSCA seeks a withdrawal (voluntary dismissal), FRCP 41(a) is applied. Everhart v. Tecumsah Products Co., Case No. 91-TSC-4 (Sec. Final Order of Dismissal, Aug. 30, 1991); Caccavale v. Northeast Utilities, Case No. 91-ERA-3, Sec. Final Order of Dismissal, Dec. 18, 1990, slip op. at 1-2. The Complainants. Motion, which was signed by their attorney, requests dismissal of the complaint. The Respondent has not filed an objection and I take that as concurring in the dismissal of the complaint. Buck v. Tennessee
[Page 2]
Valley Authority, Case No. 91-E (Sec. Final Order of Dismissal, Dec. 23, 1991).
RECOMMENDED ORDER
It is, therefore,
ORDERED that the Complainants. Motion to Withdraw and Dismiss Case is GRANTED and this case is hereby DISMISSED WITH PREJUDICE. This does not affect the case of Brummel v. Nicor Gas Co., 2004-TSC-0002, which is to be scheduled for hearing in Chicago, Illinois by future notice.
Robert L. Hillyard
Administrative Law Judge
NOTICE: This Recommended Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C., 20210. Such a petition for review must be received by the Administrative Review Board within ten (10) business days of the date of this Recommended Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.7(d) and 24.8.
