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In the Matter of :
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PATRICK R. WHITE : Date: August 12, 1994
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Complainant : Case No.: 93-STA-28
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v. :
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"Q" TRUCKING COMPANY :
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ALLIANCE TRUCKING :
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and :
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EMPLOYMENT SERVICES OF MICHIGAN :
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Respondents :
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RECOMMENDED DECISION AND ORDER DISMISSING
COMPLAINT
This proceeding arises under the Surface Transportation
Assistance Act of 1982, 49 U.S.C. app. § 2305 (1988). The
case arose in this office following the issuance of a determina-
tion by the Regional Administrator, Occupational Safety and
Health Administration that the complaint of discrimination filed
by Patrick R. White had no merit. Mr. White appealed that
determination to this office for hearing.
On August 8, 1994, counsel for the respondents filed a
Motion for Sanctions based upon the complainant's non-compliance
with discovery and pre-trial orders. As authority for the
motion, the respondents rely upon the provisions of 29 C.F.R.
§ 18.6(d)(2)(v). The respondents request that the complaint
of Patrick R. White be dismissed, or in the alternative, that
other sanctions be imposed based upon his having failed to comply
with my prior orders. The respondents also request that Mr.
White be taxed for the costs and reasonable attorney fees re-
quired to file the Motion to Dismiss.
During its pendency in the Office of the Administrative Law
[PAGE 2]
Judges, the following events have occurred:
June 18, 1993 Notice of Hearing and Pre-hearing Order
issued - The Order establishes a Pre-
hearing exchange procedure and sets
forth the guidelines for the stipulation
of documents and for the conclusion of
discovery. The Notice clearly advises
the complainant that failure to timely
comply with the pre-hearing order with-
out good cause may result in the dis-
missal of the proceeding.
June 23, 1993 Order - A stipulation of facts form is
directed to each of the parties.
June 23, 1993 Order - A copy of the Rules of Practice
and Procedure for administrative hear-
ings before the Office of Administrative
Law Judges was mailed to the complain-
ant. Mr. White was urged to obtain
attorney representation and it was
pointed out to him that the procedural
guidelines define the parameters for
discovery in these proceedings.
August 6, 1993 Order of Postponement - Based upon the
request of complainant's attorney, a
postponement was granted since Mr. White
had only retained new counsel approxi-
mately fifteen days from the date of the
request and less than a month before the
matter was scheduled for hearing. The
Order of Postponement notes that the
matter will be rescheduled for hearing
within a short period of time; that
proper notice would be provided to each
of the parties; and that it was expect-
ed that the parties would continue the
discovery process during the interim.
September 2, 1993 A second Notice of Hearing and Pre-hear-
ing Order were issued. The earlier pre-
hearing orders were made applicable to
the second Notice of Hearing and a dis-
covery conclusion date was set. This
Notice served to remind complainant that
[PAGE 3]
a dismissal could result if timely compliance
with the pre-hearing order was not made.
November 2, 1993 Memorandum of Telephone Conference -
Preliminary to the scheduled hearing, I
attempted to identify the documentary
materials and also the issues involved
in the case. Representatives of two of
the respondents were told that the case
would not be postponed but rather would
proceed to hearing.
November 3, 1993 Case called for hearing in Lansing,
Michigan - One of the respondents moved
for postponement and that request was
summarily denied. (Tr. 8) Counsel for
the complainant opposed the postponement
request. Due to a procedural problem
which arose at the hearing, the respon-
dent moved that the case be remanded for
further investigation of employment
facts to determine if more than one
employer was potentially liable. The
complainant voiced no objection to the
remand request.
November 18, 1993 Complainant's attorney sends a letter
advising that he no longer represents
Patrick White and that his withdrawal is
being done upon agreement between him-
self and Mr. White. He represents that
Mr. White was "currently in the process
of obtaining substitute counsel."
March 7, 1994 Secretary of Labor - Order of Remand -
Case is remanded for a denovo hearing and to afford the
complainant an opportunity to prove the
liability of each respondent.
May 16, 1994 Notice of Hearing and Pre-hearing Order
issued - It is directed that certain
information be exchanged prior to the
hearing, that a stipulation of documents
occur and that discovery be concluded by
July 26, 1994. The pre-hearing order
warns that "failure to timely comply
with this pre-hearing order without good
[PAGE 4]
cause may result in the dismissal of the proceeding
or the imposition of other appropriate sanctions
against the non-complying party."
May 19, 1994 Notice of Mailing issued - Certain docu-
ments were mailed to the complainant
following a request by Mr. White. The
parties were placed upon notice that the
time deadlines stated in the Notice of
Hearing will be strictly enforced. The
parties were also advised that no re-
quest for postponement will be enter-
tained and it was expected that all
parties will be prepared to go to trial
on August 16, 1994.
July 14, 1994 Complainant requests postponement in
order for him to find substitute legal
counsel. His written statement indi-
cates that he will need at least 90 days
to find legal representation and to
prepare them for the case.
July 19, 1994 Order - Complainant's request for post-
ponement is denied for multiple reasons
but primarily because the parties had
been advised on numerous occasions that
this case would not again be postponed.
July 26, 1994 Order - In response to a respondent's
Motion to Compel Complainant to Respond
to Interrogatories and a request for
production of documents, it was ordered
that "Patrick White will comply in all
respects with the discovery requests of
the respondents no later than fifteen
days from the date of this Order. Mr.
White is directed to fully answer the
Interrogatories previously served upon
him; attach any and all documents previ-
ously requested in the respondents' re-
quest for production; and supply those
documents including Mr. White's tax
records within the time stated."
The procedural rules at 29 C.F.R. § 18.6 applicable to
this case provide in part as follows:
[PAGE 5]
(d) Motion for order compelling answer: sanctions.
(1) A party who has requested admissions or who has
served interrogatories may move to determine the suffi-
ciency of the answers or objections thereto. Unless
the objecting party sustains his or her burden of
showing that the objection is justified, the adminis-
trative law judge shall order that answer be served. If
the administrative law judge determines that an answer
does not comply with the requirements of these rules,
he or she may order either that the matter is admitted
or that an amended answer be served.
(2) If a party or an officer or agent of a party fails
to comply with a subpoena or with an order, including,
but not limited to, an order for the taking of a depos-
ition, the production of documents, or the answering of
interrogatories, or requests for admissions, or any
other order of the administrative law judge, the admin-
istrative law judge, for the purpose of permitting
resolution of the relevant issues and disposition of
the proceeding without unnecessary delay despite such
failure, may take such action in regard thereto as is
just, including but not limited to the following:
(i) Infer that the admission, testimony, documents or
other evidence would have been adverse to the noncom-
plying party;
(ii) Rule that for the purposes of the proceeding the
matter or matters concerning which the order or subpoe-
na was issued be taken as established adversely to the
non-complying party;
(iii) Rule that the non-complying party may not intro-
duce into evidence or otherwise rely upon testimony by
such party, officer or agent, or the documents or other
evidence, in support of or in opposition to any claim
or defense;
(iv) Rule that the non-complying party may not be heard
to object to introduction and use of secondary evidence
to show what the withheld admission, testimony, docu-
ments, or other evidence should have shown.
(v) Rule that a pleading, or part of a pleading, or a
motion or other submission by the non-complying party,
[PAGE 6]
concerning which the order or subpoena was issued, be stricken,
or that a decision of the proceeding be rendered against the non-
complying party, or both.
The respondents contend in their motion that this case ought to
be dismissed since Mr. White has continually failed to comply
with direct orders of the Administrative Law Judge in a variety
of ways. The complainant has refused to stipulate facts or
documents as directed in the pre-hearing order, he has wholly
failed to comply with the discovery directives contained in the
Administrative Law Judge's Order entered on July 26, 1994, he has
made no pre-hearing exchange, and he has essentially failed to
pursue his complaint.
Mr. White, by letter dated August 5, 1994, responded to the
Motion for Sanctions filed by the respondents. Mr. White con-
tends that the Interrogatories were being answered and that they
would be in the hands of the attorneys by August 8 or 9, 1994.
Mr. White once again requests that the case be postponed since he
does not have attorney representation. The Motion for Sanctions
filed by the respondents was received in this office on August 8,
1994. The motion was supplemented by letter dated August 10,
1994 in which counsel for the respondents advised that as of 4:55
p.m. on August 10, 1994, they had not received any Interrogatory
responses or documents from Patrick White. August 10, 1994 is
the fifteenth day from the date of my Order compelling a response
by Mr. White. Mr. White's response by letter dated August 5,
1994, is received as a direct response to the respondents' Motion
for Sanctions and its content I believe would be the same to an
Order to Show Cause had one been issued in response to the Motion
for Sanctions.
The record of this case discloses multiple delinquencies by
the complainant. In my Order of June 23, 1993, I urged him to
obtain legal representation. Mr. White waited until less than
thirty days prior to the original scheduled hearing date within
which to retain an attorney, and therefore, caused a postponement
of his original scheduled hearing. The respondents sought post-
ponement of the second scheduled hearing which I denied.
Complainant's original counsel withdrew on November 18, 1993, and
therefore, he has had almost nine full months within which to
obtain attorney representation. Now at the last minute, he once
again in dilatory fashion seeks a postponement to obtain legal
counsel when in fact he has been advised on numerous occasions
that this case would not again be postponed. He clearly has been
dilatory in pursuing his complaint.
[PAGE 7]
The Notice of Hearing gives specific direction that at least
ten work days prior to the scheduled hearing date the parties
were to take certain action including the preparation of a
stipulation of facts, the submission of a witness list, a stipu-
lation of documents and the conclusion of discovery was noted for
July 26, 1994 in order to permit the parties an opportunity to
prepare their case for trial after having developed all pertinent
facts. Mr. White has complied with none of those directives. In
fact, the affidavit of counsel for the respondent which was
attached to the Motion for Sanctions indicates that Mr. White had
agreed to meet with the attorneys in order to prepare a stipula-
tion but that he had telephoned fifteen minutes prior to the
scheduled meeting and indicated that he had "mechanical problems"
with his vehicle and could not attend but that he "might" bring
some documents by the next day. On the following day, the
attorney was once again telephoned by Mr. White and advised that
he would not be providing all of the information requested. In
fact, as noted in counsel's letter of August 10, 1994, counsel
for the respondents have received no Interrogatory responses or
documents from Mr. White.
This record shows that even though Mr. White is not repre-
sented by counsel, this is his case and he is under an obligation
to pursue it. Many months ago, I mailed to him a copy of the
Rules of Practice and Procedure for hearings before this office
and noted that those rules contained the discovery guidelines.
In my Order of August 6, 1993, I indicated that discovery should
continue even though the case was being postponed. In my Notice
of Mailing issued on May 19, 1994, all parties were advised that
the time deadlines would be strictly enforced. Finally, in my
Order of July 26, 1994, Mr. White was directed to comply in all
respects with the discovery requests. He has complied with none
of those requests, and in addition, he has wholly failed to
respond in any way to my Pre-hearing Order.
Mr. White has had every opportunity to at least comply in
part with the pre-hearing and discovery directives. He has
refused to do that. He could have sought an extension of time
within which to file responses to the discovery directives.
Instead, he indicated partial compliance would be made at a
future date, but he even defaulted in that regard. For the
second time, he has failed to obtain attorney representation in a
timely fashion and seeks now to once again delay the processing
of this case. He has previously been advised in each of the
three Notices of Hearing that dismissal of this proceeding was
possible if he failed to comply with the pre-hearing directives.
The administrative record contains multiple orders issued by me
[PAGE 8]
emphasizing the importance of stipulating facts and documents and
engaging in the discovery process in a timely fashion. Mr. White
has seen fit to ignore my directives and also the earlier warn-
ings concerning possible dismissal. As the respondents note in
their recent submissions, their preparation for trial has been
impaired because of the complainant's refusal to cooperate. The
complainant's conduct in that regard frustrates the orderly and
expeditious disposition of cases and I believe necessitates the
imposition of sanctions. The complainant's half-hearted attempt
to pursue a complaint under this Act cannot be tolerated.
Based upon this record, I believe that the complainant's
refusal to take any steps to comply with my Orders and his other
dilatory tactics demonstrate a pattern of contumacious conduct
which is sufficient grounds for dismissing the complaint.
Consolidation Coal Co. v. Gooding, 703 F.2d 230 (6th Cir.
1983). The respondents urge that this case be dismissed based
upon authority conferred by 29 C.F.R. § 18.6(d)(2)(v). I
wholly agree. The complainant has failed to respond to the
Orders issued by the Administrative Law Judge and to the attempts
by counsel for the respondent to properly prepare this case for
hearing. I believe it is reasonable to assume that the complain-
ant no longer desires to prosecute this claim and as the respon-
dents point out in their motion, it is unfair to them to be
required to proceed to trial without the complainant fully
complying with their discovery requests.
In view of the above, IT IS RECOMMENDED that this case be
dismissed pursuant to authority contained within 29 C.F.R.
§ 18.6(d)(2). Cohen v. Roberts Express, Case No. 91-
STA-29, Sec. Final Dec. and Order, Feb. 11, 1992; Walters and
Strode v. Karmichael Tank Service, Case No. 90-STA-12, Acting
Sec. Final Dec. and Order, Jan. 22, 1991.
The respondents also seek costs and reasonable attorney fees
expended in the preparation of the Motion for Sanctions. Howev-
er, the Secretary has concluded that the Department has not
elected to assert any inherent authority to impose costs in a
whistleblower proceeding. Billings v. Tennessee Valley
Authority, Case No. 89-ERA-16-25, 90-ERA-2-8-18, Sec. Final
Dec. and Order, July 29, 1992. Therefore, the respondents
requests for costs are hereby denied.
The hearing presently scheduled to commence at 9:00 a.m. on
August 16, 1994 in Lansing, Michigan is hereby cancelled.
RUDOLF L. JANSEN
Administrative Law Judge
