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DATE: December 15, 1995 CASE NO.: 95-ERA-00044 In the Matter of ATTHEW T. BUENAFLOR Complainant v. HOUSTON LIGHT & POWER COMPANY Respondent RECOMMENDED DECISION AND ORDER DISMISSING THE COMPLAINT WITH PREJUDICE This case arises under the Energy Reorganization Act, 42 U.S.C. §5851 (the Act). Hearing on the complaint was initially scheduled to be held before me on September 21, 1995. Subsequently, the hearing was re-scheduled to commence on December 12, 1995 after the Complainant moved for a continuance so that he would have additional time for discovery. On November 27, 1995 a telephone conference was conducted during which the Complainant, acting pro se, stated that, thus far, he had been unable to obtain the cooperation of witnesses he needed to establish a prima facie case of discrimination under the Act by the Respondent. The Complainant further stated that he did not desire to proceed with his complaint if he continued to lack success in obtaining the necessary witnesses. At that time I suggested that the Complainant continue his discovery and report his intentions in a telephone conference scheduled for December 4, 1995. However, on December 3, 1995 the Complainant served, by facsimile, a request "to drop the case." On December 4, 1995 the Respondent moved for a dismissal with prejudice, noting that it had filed a Motion for Summary
[PAGE 2] Decision on November 10, 1995. In Mosbaugh v. Georgia Power Company, Case No. 90- ERA-58 (Sec'y Sept. 23, 1992), the Secretary held that a complainant is entitled to unilateral, unconditional dismissal of his complaint under the Act, in accordance with Rule 41(a)(1)(i) of the Federal Rules of Civil Procedure, where the respondent has not filed the functional equivalent of either an answer to the complaint or a motion for summary judgment. Where the respondent has filed the functional equivalent of either an answer or a motion for summary judgment, dismissal is appropriate under Rule 41(a)(2). Mosbaugh, supra. In the instant case, the Respondent's Motion for Summary Decision, filed on November 10, 1995, precludes the application of Rule 41(a)(1)(i). I find, under Rule 41(a)(2) of the Federal Rules of Civil Procedure, that the complaint should be dismissed with prejudice. RECOMMENDED ORDER The complaint of Matthew T. Buenaflor is dismissed with prejudice. ROBERT D. KAPLAN Administrative Law Judge DATED: Camden, New Jersey NOTICE: This Recommended Order and the administrative file in the 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 Office of Administrative Appeals 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).