Date Issued: March 31, 1997

Case No: 97-STA-4

In the Matter of

DAVID L. SOMHORST,
    Complainant,

    v.

SILVER EAGLE TRANSPORT,
    Respondent.

    This proceeding arises under Section 405 of the Surface Transportation Assistance Act of 1982, 29 U.S.C. § 2305 (the Act), and the regulations promulgated thereunder, 29 C.F.R. Part 1978.

    Complainant, David Somhorst, filed a complaint under the Act with the Secretary of Labor alleging the respondent, Silver Eagle Transport, discriminatorily constructively discharged him for refusing to drive a commercial motor vehicle in violation of the Department of Transportation hours of service regulations. The matter was investigated by the duly authorized agent of the Secretary of Labor. The Secretary's findings were issued on November 15, 1996, in which it was determined that Mr. Somhorst's complaint had no merit and should be dismissed. By letter dated December 10, 1996, complainant appealed the findings of the Regional Administrator dated November 15, 1996. The case was docketed on December 20, 1996 and assigned to me on December 31, 1996 for the purpose of scheduling a formal hearing.

    My legal technician attempted to contact the complainant during the week of January 13-17, 1997 to arrange a telephone conference with the parties for the purpose of discussing the time constraints provided in the regulations and a mutually convenient hearing date. Since this action proved unsuccessful,

I issued a Notice of Hearing and Pre-Hearing Order on January 21, 1997 in which I set the case for hearing on April 8, 1997 at Jacksonville, Florida. I also directed the parties in that order to advise me by February 7, 1997 as to the estimate of the number of witnesses each party anticipated calling at the hearing and the length of time needed to present the testimony.

    Neither party complied with the provisions of the January 21, 1997 order. I therefore issued an order on March 4, 1997

directing the parties to advise me by March 14, 1997 as to the information required in the previous order so that an additional order could be issued regarding trial preparation. I pointed out in that order that since the complainant has the burden of proving his allegations of discrimination against the respondent, the complainant's failure to comply with prehearing orders could result in a recommendation that the complaint involved in this proceeding be dismissed.

    Counsel for the respondent, Richard N. Margulies, Esquire, advised by letter dated March 6, 1997 that he anticipated calling three persons to testify at the hearing and that he anticipated it would take about three hours for this testimony. By letter dated March 10, 1997, Mary Ann Shepard, Esquire, indicated she had been retained to represent the complainant in his unemployment case but that she did not represent Mr. Somhorst in this action. She also stated it was her understanding that the complainant does not wish to pursue this matter and she stated that she had instructed Mr. Somhorst to notify all parties involved regarding this matter. I have received no communication from the complainant.

    On March 14, 1997, I issued an Order to Show Cause why the complaint in this case should not be dismissed under 29 C.F.R. § 18.6(d)(2) because of Mr. Somhorst's failure to comply with the orders of January 21, 1997 and March 4, 1997. For the convenience of the complainant, I attached to the order a form in which he could request that the complaint involved in this case be withdrawn. I alternatively indicated that if the complainant did not show good cause for his failure to respond to the previous orders by March 24, 1997 that the complaint involved in this case would be dismissed.

    The order to show cause was sent to the complainant by certified mail, return receipt requested. It was returned to this office on March 28, 1997 with the Postal Service noting that it had been unclaimed by Mr. Somhorst although he had received notification of the mail on two occasions.

    Since the complainant has not responded to any of the orders issued in this case or shown good cause for his failure to do so, IT IS HEREBY ORDERED that the complaint involved in this case is dismissed with prejudice pursuant to 29 C.F.R. § 18.6(d)(2). See Cohen v. Roberts Express, 91-STA-29 (Sec'y Feb. 11, 1992). IT IS FURTHER ORDERED that the hearing scheduled in this case for April 8, 1997 in Jacksonville, Florida is canceled.

      DONALD W. MOSSER
      Administrative Law Judge

NOTICE: This Order of Dismissal and the administrative file in this matter will be forwarded for review by the Secretary of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., NW, Washington, D.C. 20210. The Administrative Review Board 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 61 Fed. Reg. 19978, 19982 (1996).