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Gerhardt v. Exelon Nuclear, 2002-ERA-7 (ALJ Apr. 4, 2002)
U.S. Department of Labor | Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 | ![]() |
Issue date: 04Apr2002
CASE NO.: 2002 ERA 7
In the Matter of
PAUL D. GERHARDT
Complainant
v.
EXELON NUCLEAR
Respondent
Appearances:
Mr. Christopher Hexter, Attorney
For the Complainant
Mr. Donn C. Meindertsma, Attorney
For the Respondent
Before: Richard T. Stansell-Gamm
Administrative Law Judge
This case arises under the employee protection provision of the Energy Reorganization Act of 1974, as amended ("ERA" and "Act"), Section 211, 42 U.S.C. 5851, as implemented by 29 C.F.R. Part 24 (effective date - March 11, 1998; see 63 Federal Register 6614, February 9, 1998). This statutory provision prohibits an employer from discharging or otherwise discriminating against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee engaged in activities to carry out the purposes of the statute.
The Complainant, Mr. Paul D. Gerhardt, filed a complaint under the Act on August 21, 2001 alleging that the Respondent, Exelon Nuclear, placed him in layoff status in retaliation for his alleged protected activity under the ERA. On October 29, 2001, the Area Director, Occupational Health and Safety Administration ("OSHA"), notified Mr. Gerhardt that an investigation did not verify his allegation that discrimination was a factor in the company's actions toward him. In response, Mr. Gerhardt filed a timely appeal with the Office of Administrative Law Judges. After granting a continuance for discovery, I set a hearing date of April 2, 2002, to be held jointly with a companion case,1 in Chicago, Illinois.
However, on March 29, 2002, prior to the hearing, I received from the parties a Stipulation of Dismissal with Prejudice. Through counsel, Mr. Gerhardt voluntarily requested dismissal of his case with prejudice and indicated his understanding that such action rendered the OSHA determination the final determination in his case. Counsel for the Respondent has no objection to a dismissal with prejudice. And both attorneys represented: a) each side will bear its own attorney fees and costs; b) the dismissal was based on the Complainant's voluntary request; and, c) no settlement agreement "of any kind" had been "entered between them."
Since neither the ERA nor the implementing regulations, 29 C.F.R. Part 24, nor the procedural regulations, 29 C.F.R. Part 18, contain procedures for the voluntary dismissal of ERA complaints, Rule 41 (a) (1) (ii) of the Federal Rules of Civil Procedure becomes applicable. See Meier v. Brown & Root, 89-ERA-44 (Sec'y Mar. 28, 1990), Gallata v. Tennessee Valley Authority, 91-ERA-28 (Sec'y May 20, 1992) and 29 C.F.R. § 18.1 (a). Having considered the specific provisions of the parties' stipulation, I find that approval of a dismissal with prejudice, under Rule 41 (a)(1)(ii), based on Mr. Gerhardt's request for a voluntary dismissal of his case is appropriate.
Accordingly, the case of Mr. Paul D. Gerhardt is DISMISSED WITH PREJUDICE.
SO ORDERED:
RICHARD T. STANSELL-GAMM
Administrative Law Judge
Date Signed: April 2, 2002
Washington, D.C.
NOTICE: This Recommended Decision and 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, NW, Washington DC, 20210. Such petition for review must be received by the Administrative Review Board within ten business days of the issuance date of this Recommended Decision and 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.
1James A. Uremovic v. Exelon, 2002 ERA 8.