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Chamberlain v. Omaha Public Power District, 2003-ERA-23 (ALJ Oct. 22, 2003)
U.S. Department of Labor | Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 |
Issue Date: 22 October 2003
Case No. 2003-ERA-23
In the Matter of
SHERRY A. CHAMBERLAIN
Complainant
v.
OMAHA PUBLIC POWER DISTRICT
Respondent
BEFORE: RUDOLF L. JANSEN
Administrative Law Judge
This proceeding arises under the Employee Protection Provisions of the Energy Reorganization Act (hereinafter the Act), Section 211. 42 U.S.C. Section 5851, as implemented by the applicable regulations found at 29 C.F.R. Part 24. On July 21, 2003, a Regional Supervisory Investigator, Occupational Safety and Health Administration, U.S. Department of Labor, issued his findings on the complaint filed by Sherry A. Chamberlain which concluded that it was reasonable to believe that the Respondent had not violated the employee protection provisions of the Act as a result of its discharge of Complainant on May 23, 2003.
In response to the OSHA investigator's findings, the Complainant timely appealed those findings on May 28, 2003 by way of a written complaint and a telephone complaint. Following referral of the matter for hearing, a Notice of Hearing was issued by this office scheduling the case for hearing on November 18, 2003 in Omaha, Nebraska.
On October 13, 2003, I received a document signed by Sherry Chamberlain in which she indicates as follows:
I am contacting you in regards to Case No. 2003-ERA-23, Sherry A. Chamberlain v Omaha Public Power District. I have spoken with my Lawyer in reference to this particular case, and I have decided to retract my appeal. I have a court date assigned for November 18, 2003.
I apologize for any inconvenience that may have occurred.
The document was signed by Sherry Chamberlain. I accept this signed statement by Ms. Chamberlain as being a voluntary abandonment and withdrawal of the Complainant's request for hearing in this case.
Subsequent to receipt of the Complainant's request, a copy of the request was sent by facsimile transmission to counsel for the Respondent. In a letter dated October 16, 2003, Robert F. Rossiter, Jr., counsel for Respondent filed a responsive statement indicating that he has no objection to the dismissal of this case as requested by the Complainant.
Neither the Energy Reorganization Act nor its implementing regulations found at 29 C.F.R. Part 24, nor our own procedural regulations found at 29 C.F.R. Part 18, contain procedures guiding the voluntary dismissal of an ERA complaint. Therefore, the Federal Rules of Civil Procedure will control the disposition of this matter. It has been established that in cases arising under the Energy Reorganization Act that requests for withdrawal of a complaint are treated as requests for voluntary dismissal under the provisions of Fed. Rule Civil Proc. 41(a)(1)(ii) where the Respondent concurs in the Complainant's request. Bradish v. The Detroit Edison Co., 94-ERA-20 (Sec'y) Aug. 8, 1994); Blevins v. Tennessee Valley Authority, Case No. 90-ERA-4, Sec. Ord., June 28, 1993, slip op. at 2; Hall v. Teledyne Wah Chang Albany, Case No. 91-ERA-30, Sec. Ord., Aug. 30, 1991, slip op. at 1-2; Ryan v. Pacific Gas and Electric Co., Case No. 87-ERA-32, Sec. Ord., Aug. 9, 1989, slip op. at 1-2.
Based upon the above, the request of Sherry A. Chamberlain together with Respondent's written expression of agreement, constitute a stipulation of dismissal by the parties, satisfying the requirements of Rule 41(a)(1)(ii). Therefore, IT IS ORDERED that the complaint in this case is hereby dismissed without prejudice.
Rudolf L.Jansen
Administrative Law Judge