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Complainant's reply is inadequate. She alleges, with no supporting evidence, that her current employment has included training, sometimes given on short notice, and that there was a "very tight situation, developing from April 24, 2002 at the complainant's work place that necessitated the attending of the situation and the training. The training also resulted in a certificate. The training would not repeat again." Reply, page 1. Complainant offered her need to attend training as the reason she failed to appear for trial.
Complainant professed she would like to explain her situation with her current employer with written records, but she "would not like the [R]espondent to know about the records." Complainant understands that material cannot be filed in this proceeding without serving it on Respondent. I cannot infer that Complainant had some valid reason for her absence which would be substantiated by materials Complainant chooses to withhold. The more appropriate inference, if any inference is to be drawn, is that no supporting documents exist. Whether there were demands on her time which made it inconvenient for Complainant to attend the trial is not the main issue. The issue she needs to explain is why she made no effort to postpone the trial if she could not attend, and why she then failed to come forward to offer a reason for her absence promptly after the scheduled trial. She simply did nothing until she was ordered to explain her absence.
The portion of the Reply dealing most directly with the reason for her absence says:
Honestly, the complainant believed that since most of the exhibits and the relevant arguments are before the DOL and (therefore available to) the Honorable Judge, in the absence of the complainant due to the circumstances mentioned above [the training at the new employer] the complainant would receive an ex parte decision based on these facts and documents. Some of the documents and facts that are already before the honorable judge are mentioned in (G) below.
Reply, paragraph B, page 2.
The notice of the calendar call neither says or intimates that the case would be decided on a written record made in advance of the trial. The pre-trial order incorporated into the notice of hearing makes the evidentiary nature of the May 6, 2002 proceeding clear, requiring the parties to submit witness lists and to exchange exhibits in advance of trial. The order explicitly tells parties that original exhibits are to be presented at trial. Complainant had no reason to believe her claim could be determined upon statements contained in the file the Administrator made, without testimony subject to cross-examination. I cannot understand why Complainant would not make the minimal effort to raise any problem she had in attending the trial by writing a letter or by at least telephoning the Office of Administrative Law Judges during the period from the time her training began on April 24 until the trial date of May 6, 2002. Her Reply fails to show that any unanticipated emergency prevented her from doing so, or from attending the trial.
Claimant chose to work at her new job rather than attend the trial she had requested. Respondent, on the other hand, retained an attorney who filed a statement of position on the Respondent's behalf before the calendar call, and attended as required. When the Order to Show Cause was served on her, Complainant realized she needed to seek an extension rather than let the time for response pass without making a reply. Complainant should have made a similar effort to deal with any difficulty she had with the trial date.
Because there was no good cause for Complainant's failure to attend the trial, this matter is dismissed under 29 C.F.R. § 18.39(b). This has the effect of affirming the determination of the Administrator dated January 17, 2002.
WILLIAM DORSEY
Notice of Appeal Rights:
[ENDNOTES]
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