UNITED STATES
DEPARTMENT OF LABOR

Lake v. Martin Gas Sales, Inc., 2001-WPC-3 (ALJ Jan. 16, 2002)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue date: 16Jan2002
Case No.: 2001-WPC-00003

In the Matter of

ROBERT LAKE
    Complainant

    v.

ARTIN GAS SALES, INC.
    Respondent

   These proceedings arise under the Federal Water Pollution Control Act 33 U.S.C. 1367 (Act) and implementing regulations. Complainant, Robert Lake, filed a complaint with the U. S. Department of Labor on or about September 19, 2000, alleging he was a protected employee engaged in protected activity within the scope of the Act and was a victim of discrimination as a result of that activity. Specifically, he alleged he was disciplined on September 14, 2000, because of an event (spill) that occurred on August 7, 2000. An investigation was conducted by the Occupational Safety and Health Administration (OSHA). In a letter dated June 13, 2001, the Regional Supervisor of OSHA notified all parties that Complainant's complaint had merit. Specifically, it was determined that during investigative interviews by Respondent's attorney, and while appearing before a Grand Jury convened to investigate the clean up procedures used by Respondent following the sulphur spill of August 7, 2000, Respondent suspected that Claimant and other crew members did or would identify violations of the Act involved in the clean up procedures and did or would maintain these procedures were the direct instructions of Respondent's on site manager. As a result of these suspicions, OSHA determined the Complainant, and others, were subsequently disciplined in retaliation and in violation of the Act. The Respondent was ordered to purge Complainant's personnel record and pay to Complainant loss bonus and wages which were withheld through April 1, 2001.

   As a result of this determination, Respondent appealed, and the matter was docketed in the Office of Administrative Law Judges on June 15, 2001, assigned to the undersigned and set for hearing on July 17, 2001. At request of Respondent, and with Complainant's consent, the trial was subsequently reset for September 18, 2001; however, by request of Complainant the matter once again was continued until October 10, 2001, in order for Complainant to obtain counsel. Complainant retained counsel, and prior to trial the parties announced a settlement had been reached. On January 14, 2002, a written document was submitted wherein Claimant and his counsel agreed to a withdrawal of his complaint. The document is signed by all parties and contains the terms of a settlement agreement.

   Rule 41 of the Federal Rules of Civil Procedure governs voluntary dismissal of complaints brought under the federal employee protection statutes. Rule 41(a)(1)(ii) provides for the dismissal of an action "without order of the Court" where stipulation of dismissal is signed by all parties. Rule 41 does not apply where "any statute of the United States" establishes other procedures for dismissal of actions pursuant to settlements.

   The Federal Water Pollution Control Act, 33 U.S.C. §1367, does not contain other procedures for dismissal of actions pursuant to settlements, and Complainant's stipulation appears to meet the terms of Fed. R. Civ. P 41(a)(1)(ii). Consequently, it is hereby recommended that the Secretary of Labor enter an order dismissing this matter.¹

   SO ORDERED this 16th day of January, 2002, at Metairie, Louisiana.

       C. RICHARD AVERY
       Administrative Law Judge

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¹ See Biddle v. United States Department of the Army, 93-WPC-15 (Sec'y March 29, 1995).