ARB CASE NO. 03-055
ALJ CASE NO. 02-STA-044
DATE: November 25, 2003
In the Matter of:
DANIEL S. SOMERSON,
COMPLAINANT,
v.
MAIL CONTRACTORS OF AMERICA,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Edward A. Slavin, Jr., Esq., St. Augustine, Florida
For the Respondent:
Oscar E. Davis, Jr., Esq., Friday, Eldredge & Clark, Little Rock, Arkansas
FINAL ORDER STRIKING THE COMPLAINANT'S BRIEF
AND DISMISSING THE COMPLAINT
This case arises under the employee protection provisions of the Surface Transportation Assistance Act (STAA), 49 U.S.C.A § 31105 (West 1997). The Complainant, Daniel Somerson, filed a complaint alleging that the Respondent, Mail Contractors of America (MCOA), violated the STAA's employee protection provisions by terminating his employment because he refused to drive when he was too sick or fatigued to safely do so. We find the Administrative Law Judge's Recommended Decision and Order Dismissing Complaint and Certifying Facts Relating to Intimidation and Harassment of Witnesses and Counsel to Federal District Court (R. D. & O.) to be in accordance with the facts and the law. Accordingly, we accept the Judge's recommendation and dismiss Somerson's complaint.
1 The e-mails and excerpts from the websites to which MCOA objected are appended to the ALJ's R. D. & O. and are designated as Exhibit "A." Somerson v. Mail Contractors of America, ALJ No. 2002-STA-44 (ALJ Dec. 16, 2002).
2 In response to MCOA's filing of the M.P.O., Somerson, filed a new STAA complaint alleging that MCOA; the law firm of Friday, Eldredge & Clark (a law firm representing MCOA); and Oscar Davis (an attorney representing MCOA) violated the STAA by requesting the M.P.O. MCOA filed a Motion to Dismiss this complaint arguing that it failed to assert a prima facie allegation of an adverse employment action. On January 10, 2003, Administrative Law Judge Thomas M. Burke issued a Recommended Decision and Order Dismissing Complaint and Referring Matter to the Tennessee Supreme Court's Board of Professional Responsibility. Somerson v. Mail Contractors of America, ALJ No. 2003-STA-00011. The ALJ found that "[t]he present complaint . . . is completely specious" and "fails to allege the essential elements of a violation of the whistleblower protection provisions of the STAA." Slip op.at 2. Upon automatic review, the Administrative Review Board issued a Final Order Striking the Complainant's Brief and Dismissing the Complaint. Somerson v. Mail Contractors of America, ARB No. 03-042, ALJ No. 2003-STA-00011 (Oct. 14, 2003). The Board held, inter alia, "After reviewing the record and facts in the light most favorable to Somerson, we agree that Somerson has failed to rebut the Respondent's motion to dismiss with a demonstration of a dispute in material fact and that he has failed to allege and to adduce evidence in support of an essential element of his complaint . . . ." Slip op. at 7. Accordingly, the Board dismissed the complaint. Id.
Daniel Somerson shall conduct himself within the bounds of appropriate respect and decorum albeit with allowance for appropriate zeal and vigor, during any proceedings, and any matter related thereto, held under the authority of the Office of Administrative Law Judges, U.S. Department of Labor, and regarding any other official purpose with any person or organization of the Office of Administrative Law Judges, U.S. Department of Labor, wherein Daniel S Somerson is a party, a representative, a witness or other participant.
4 Mr. Somerson's Supplemental Citations, Motion to Lift Stay and Motion to List Respondent's Website Surveillance as Issue for Trial at 1.
5 In an Order issued September 8, 2003, the United States District Court, Middle District of Florida, found that "Somerson's e-mails and websites are of a harassing nature, and are hostile and crude to say the least. His messages do not instill dignity and respect for the administrative proceedings, nor for the witnesses or counsel involved." In re: Daniel S. Somerson, Case No. 3:02-cv-1158-J-20TEM. The court adjudged Somerson to be in civil contempt and ordered him, inter alia, to pay a $5000.00 fine.
6See Secretary's Order 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002)(delegating the Secretary's authority to issue final decisions under the STAA to the Administrative Review Board).
7 The Board granted this motion with respect to Somerson v. Mail Contractors of America, ARB No. 03-042, ALJ No. 2003-STA-00011 in a Final Order issued October 14, 2003 and In Re: Daniel Somerson, ARB No. 03-068, ALJ Nos. 2002-STA-00044, 2003-STA-00011 in a Final Order issued October 21, 2003.
8 In a letter to the Board inquiring whether the Board would be issuing a briefing order in another case involving Complainant Somerson, counsel for Somerson, Mr. Slavin, asked, "does the ARB plan to stay all action in this case and Mr. Somerson's other cases? If not, please issue a stay to avoid injustice, the possibility of reversal and waste of time." Mr. Slavin has been repeatedly admonished that all requests for action by this Board must be in the form of a motion with a caption including the ARB case number and that failure to comply with this requirement will result in the Board's refusal to consider the party's request. See e.g., Steffenhagen v. Securitas Sverige, AR, ARB No. 03-139, ALJ No. 03-SOX-024 (ARB Sept. 30, 2003); Slavin v. Office of Admin. Law Judges, ARB No. 03-77, ALJ No. 03-CAA-12 (ARB Aug. 22, 2003); Gass v. Lockheed Martin Energy Systems, ARB No. 03-093, ALJ Nos 2000-CAA-22, 2002-CAA-2 (ARB July 11, 2003), Erickson v. United States Envtl. Prot. Agency, ARB Nos. 03-02, 03, 04, ALJ Nos. 1999-CAA-2, 2001-CAA-8, 13, 2002-CAA-3, 18(ARB Oct. 17, 2002). The letter addressed to the Board requesting the Board to take action in this case was not in the form of a motion and failed to include a caption specifying the Board's case number. Accordingly, we will not consider his request.