This matter arises under the Toxic Substances Control
Act of 1986 (TSCA), 15 U.S.C. §§ 2641, etseq., 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
[Page 2]
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.
[Page 3]
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).