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Ayotte v. Arc-Rite Precision Welding, 2000-SDW-1 (ALJ Aug. 3, 2000)
U.S. Department of Labor | Office of Administrative Law Judges 2600 Mt. Ephraim Avenue Camden, NJ 08104 (856) 757-5312 | ![]() |
Issue Date: August 15, 2000
CASE NO.: 2000-SDW-00001
In the Matter of:
DENNIS AYOTTE
Complainant
v.
BRIAN R. POITRAS and
ARC-RITE PRECISION WELDING
Respondents
>
This matter arises from a complaint filed by Dennis Ayotte ("Complainant") against Brian R. Poitras and Arc-Rite Precision Welding ("Respondents) alleging violations of the employee protection provisions of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. §300j-9, the Clean Air Act ("CAA"), 42 U.S.C. §7622, and the regulations promulgated thereunder as contained at 29 C.F.R. Part 24.
The complaint was investigated by the Occupational Safety and Health Administration ("OSHA") which issued its findings in a letter dated July 14, 2000. Specifically, OSHA found that the Complainant had engaged in activity protected by the SWDA and CAA and that the Respondents had taken a retaliatory action against the Complainant in violation of the SWDA and CAA when it mailed the Complainant's paycheck when the Complainant was scheduled to pick it up at the work site. To remedy this violation, OSHA ordered the Respondents to pay the Complainant $200.00 in damages. However, OSHA dismissed the portion of the complaint alleging that the Complainant had been terminated in violation of the SWDA and CAA based on its finding that the evidence overwhelmingly suggests that the Complainant voluntarily quit.
By letter dated July 20, 2000 to the Chief Administrative Law Judge, the Respondents appealed the OSHA findings and requested a hearing. The matter was assigned to
the undersigned, and a hearing was scheduled for August 22, 2000. On August 10, 2000, the Complainant filed a notice of voluntary dismissal requesting that his complaint be dismissed and that the hearing be canceled. The Complainant further stated in his notice that there had been no settlement between the parties. Since the Complainant's notice did not indicate that service had been made on the Respondents, the Respondents were contacted by this office and indicated that they did not oppose or intend to respond to the Complainant's request to withdraw his complaint.
The SWDA, CAA and implementing regulations do not provide for voluntary dismissal of a complaint. See Caccavale v. Northeast Utilities, 91-ERA-3 (Sec'y December18, 1990); Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985). However, where a complainant files a notice of voluntary dismissal after a respondent has filed the functional equivalent of an answer, such as a request for hearing from an adverse preliminary finding, dismissal without prejudice under Fed. R. Civ. P. 41(a)(2) is appropriate, provided that the respondent does not object to the complainant's notice of voluntary dismissal. Young v. CBI Services, Inc., 88-ERA-19 (Sec'y August 4, 1994). Here, the Respondents have not objected to the Complainant's notice of voluntary dismissal. Accordingly,
IT IS HEREBY RECOMMENDED that the Complainant's request be GRANTED and the complaint filed in this matter be DISMISSED WITHOUT PREJUDICE.
In view of the foregoing, the hearing scheduled for August 24, 2000 in Boston, Massachusetts is CANCELED.
SO ORDERED.
DANIEL F. SUTTON
Administrative Law Judge
Camden, New Jersey