A telephone conference was held on June 8, 1990 with the Plaintiff, attorney for the Defendant, and this Administrative Law Judge, at which time the Plaintiff stated that he was ready to go forward with his hearings. A hearing date was agreed upon with the parties and the hearings were scheduled to commence on August 13, 1990 in Knoxville, Tennessee, with pretrial submissions to be filed by July 23, 1990. The Plaintiff expressed concern that a consolidated hearing of all five complaints would be too lengthy and complicated. The Administrative Law Judge advised him that the cases would be severed for the purpose of filing of pleadings, however, after the prehearing submissions were filed, the cases might be consolidated in order to expedite the hearing process and lessen the expenses to all parties. The parties were told that a decision on whether to consolidate one or more of the cases for hearing would be made after review of the prehearing submissions and would depend on the similarity of issues and duplicity of witnesses. Plaintiff was also advised that his motion for disqualification of Judge Hillyard was denied.

   On June 12, 1990 several Orders were issued. A Notice of Hearing and Prehearing order was issued scheduling the hearing to commence on August 13, 1990 and requiring the parties to file a list of witnesses with summary of testimony, a statement of the issues, a list of exhibits, Preliminary motions and an estimate as to the length of time required for hearing. The Order provided a notice, "That failure to timely comply with this prehearing order, without good cause shown, may result in the dismissal of the proceeding or the imposition of other appropriate sanctions against the offending party." An Order was issued severing the five cases for the purpose of the filing of motions and pretrial submissions. This Order provided that after review of the pretrial submissions of the parties, a determination would be made on whether to consolidate one or more of the cases for hearing. Such a determination was to be made after review of the list of issues, witnesses and exhibits. Other Orders were issued denying the Plaintiff's Motion to Recuse and lifting the Stay of Proceedings.

   On July 18, 1990, the Defendant filed a motion to extend the time for the filing of its pretrial submission until July 30, 1990. This motion was granted by Order dated July 19, 1990.

   On July 20, 1990, the Plaintiff filed a Motion requesting that the five cases be separated for hearing and requested a time extension for the filing of his pretrial submission. Plaintiff

stated that the request for information in all five cases was too overwhelming. He submitted a letter from Dr. Berglund stating that "...He [Plaintiff] would benefit from having his trials staged in single events rather than all five at the same time since it is unlikely that he would be able to handle the stress level." Plaintiff wrote on July 25, 1990, requesting that only one particular case be identified for hearing.

   On July 30, 1990, the Defendant filed its prehearing submission. The Defendant estimated that a hearing on all five complaints could be completed in one to one and one-half days.

   On July 31, 1990, a telephone conference was held with Plaintiff, attorney for the Defendant and this Administrative Law Judge. The purpose of the conference was to discuss the prehearing submissions and determine which cases could actually be consolidated for hearing after reviewing the prehearing submissions and the similarity of issues and witnesses. Mr. Billings stated that he had made no attempt to obtain the information necessary for the prehearing submission until the week of July 23rd, the date that the prehearing submission was due. Plaintiff stated that he would like to continue the cases for six months and then handle them on a one case at a time basis. The Defendant stated that the issues in all five cases, other than 90-ERA-2 were related and should be tried together. Because the Plaintiff was unprepared to discuss the hearings, the conference was concluded with no further discussion or decisions.

   On August 2, 1990, an Order was issued cancelling the hearing because Plaintiff failed to file prehearing submissions and was not prepared to go forward with the hearing. By letter filed August 9, 1990, the Plaintiff requested the status of his cases and said that he felt he could participate in one case at a time.

   On August 9, 1990, an Order was issued extending the time for filing of the Plaintiff's prehearing submission until September 14, 1990. This Order provided a notice, "Failure to timely comply with this Order without good cause will result in the DISMISSAL of the proceeding or the imposition of other appropriate sanctions." The Plaintiff has not filed any response to this Order. A second Order was issued on August 91 1990, denying the Plaintiff's motion to separate. This order again advised the Plaintiff that no determination had been made as to which cases, if any, to consolidate for hearing but that determination was to

be made after reviewing the list of issues and witnesses to be furnished in the prehearing submissions of the parties. This order stated that the cases had already been severed by order issued on June 12, 1990. Therefore, the motion to separate was denied as being moot.

   The Plaintiff wrote on September 13, 1990, stating that he was able to compile the evidence and witness list for one hearing at a time. Plaintiff wrote again on September 21, 1990, requesting that the cases be separated and that one be selected for hearing. The Plaintiff has never filed a response to the pretrial order.

   Twenty-nine CFR section 18.6 provides in pertinent part:

(d) (2) If a party ... fails to comply with... any other order of the administrative law judge, the administrative 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:

(v) Rule that... a decision of the proceeding be rendered against the non-complying party.

   Twenty-nine CFR section 18.29 provides that the administrative judge shall have all powers necessary to the conduct of fair and impartial hearings, including:

(6) take any action authorized by the Administrative Procedure Act;

(8) where applicable, take any appropriate action authorized by the Rules of Civil Procedure for the United States District Courts issued from time to time and amended pursuant to 28 U.S.C. 2072; and

(9) do all other things necessary to enable him or her to discharge the duties of the office.

   A trial judge is allowed considerable discretion to dismiss an action for want of prosecution. Tinkoff v. Jarecki, 208 F.2d 861 (1953, CA7 Ill); Locascio v. Teletype Corp., 694 F.2d 497 (7th Cir. 1983). These rules reflect a court's inherent authority to control its own docket by way of dismissal of actions in order to manage the orderly and expeditious disposition of all cases. An Order of Dismissal sua sponte under Rule 41(b), Fed.R.Civ.P., may be entered by the adjudication officer. Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed. 2d 734 (1962).

   It is clear that the district court does have the power under Rule 41(b), Fed.R.Civ.P., to enter a sua sponte order of dismissal. Carter v. City of Memphis, Tennessee, 636 F.2d 159 (6th Cir. 1980). The sanction of dismissal is appropriate only if the attorney's dilatory actions amounted to failure to prosecute and no alternative sanction would protect the integrity of pretrial procedures. J. F. Edwards Const. Co. v. Anderson Safeway Guard Rail Corp., 542 F.2d 1318 (7th Cir. 1976) (per curiam). As the Seventh Circuit has stated, "the key is a failure to prosecute, whether styled as a failure to appear at a pre-trial conference, failure to file a pre-trial statement, failure to prepare for conference, or failure to comply with the pre-trial order." Id. at 1323.

   In the instant case, the Plaintiff is representing himself, and any failure to comply with pretrial orders are directly attributable to and due solely to the neglect of the Plaintiff. A review of the facts in this case show that the Plaintiff consistently failed to comply with Orders of this court. Initially, delays were granted at Plaintiff's request due to his health problems. Proceedings were continued and/or stayed pending improvement of the Plaintiff's health. For these delays the Plaintiff was not penalized. However, even during this period the Plaintiff demonstrated a reluctance, if not outright refusal, to comply with the court's Orders. The Plaintiff failed to comply with an Order issued in 89-ERA-16, with which this case had been consolidated, directing him to file a medical report giving his prognosis and an estimate as to when he would be able to proceed with hearing. The Administrative Law Judge then personally wrote to the doctor to get the necessary information.

   The Plaintiff, during the telephone conference of June 8, 1990, advised that he was able to proceed with the hearings on

his complaints. A date for the hearing was agreed upon with all parties present. A date was also discussed and agreed upon for the prehearing submissions. Shortly thereafter, on June 12, 1990, a Notice of Hearing and Prehearing Order was issued. Since that time, the Plaintiff has failed and refused to comply any Orders of this court.

   A telephone conference was conducted on July 31, 1990. The purpose of the conference was to discuss and schedule hearings on the cases scheduled to commence on August 13, 1990. The determination on which cases, if any, were to be consolidated for hearing was to be made after the parties had filed their pretrial submission containing the witness list and list of issues. The Defendant stated in its pretrial submission and in telephone conferences that the issues were intertwined and the different cases would require the same witnesses. TVA estimated that all five cases could be heard in one to one and one-half days. The Plaintiff did not file a pretrial submission. In fact, the Plaintiff admitted during a telephone conference that he had made no attempt to comply with the pretrial order. He said that he made no attempt to gather the information necessary for compliance until the week of July 23rd and even then gave no indication of what, if any, effort he had made for compliance. The scheduled hearings were cancelled and Plaintiff was given an extension until September 14, 1990, for filing his pretrial submission. To date, the Plaintiff has filed no response to the pretrial order.

   Plaintiff states that he is unable to handle five cases at one time. He feels the stress of working these five cases is too much for him. He submitted a letter from Dr. Robert K. Berglund, dated July 11, 1990, in which Dr. Berglund stated:

Mr. Douglas Billings is now eight months post-bypass grafting, but still has occasional chest discomfort during periods of emotional upset and heavy exertion for which he remains on medical treatment. He would benefit from having his trials staged in single events rather than all five at the same time, since it is unlikely that he would be able to handle the stress level ....

   Depending on the list of witnesses and issues which were to be submitted by the Plaintiff in his pretrial submission, one or more of the cases might have been consolidated for hearing.

However, the Plaintiff refused to file any response to the pretrial order and, in effect, has written that he has no intention of complying with the pretrial order. He wrote that he intends to comply with Dr. Berglund's recommendation. Dr. Berglund had no knowledge that all cases could possibly be heard in one to one and one-half days as estimated by the Defendant and, in fact, made no recommendation based on the true facts of this case.

   The facts show that the complaint was filed on August 7, 1989. A Notice and Prehearing Order was issued on December 7, 1989. Proceedings were then stayed at the request of the Plaintiff until June 8, 1990, when the Plaintiff advised that his health had improved to the point that he could proceed with formal hearings on his cases. At that time, the cases were severed but were scheduled for hearing at the same time pending filing of the prehearing submissions by the parties. The Plaintiff was advised that a decision on which cases, if any, to consolidate for hearing would be made after review of the issues and witnesses as listed by the parties in their pretrial submissions. He was made aware of this on at least six occasions, twice orally, during telephone conferences of June 8, 1990 and July 31, 1990 and four times in writing, by memorandum of telephone conferences dated June 12, 1990 and August 2, 1990 and by Orders dated June 12, 1990 and August 9, 1990. Plaintiff waited until shortly before the scheduled trial date before advising the court that he was unprepared to go forward. This was not in response to a written notice but in response to a telephone conference initiated by the Administrative Law Judge. It is to be noted that all of the numerous telephone conferences conducted during these proceedings were initiated by the Administrative Law Judge and were held with the Plaintiff, attorney for the Defendant, and this Administrative Law Judge. Plaintiff was advised by notices issued with orders dated December 7, 1989, June 12, 1990, and August 9, 1990, that failure to comply could result in dismissal of his complaint. The Plaintiff has still made no attempt to comply with the Pretrial Order.

   The Plaintiff has made no attempt to comply with the court's orders or the time schedules directed by the court but instead has attempted to stall and dictate the scheduling of the proceedings according to his wishes and desires. I find that the actions on the part of the Plaintiff evidence an unqualified indifference to several court commitments which were continually changed at the request of the Plaintiff. Plaintiff's contumacious conduct

warrants dismissal of the complaint for want of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Brazil v. Sambo's Restaurant, Inc., 27 FR Serv2d 228, Unpublished No. 77-2231 (7th Cir. 1978), Reh den Nov 13, 1978.

   Accordingly, I recommend that the complaint be dismissed for failure of the Plaintiff to presecute and failure of the Plaintiff to comply with orders of this court.

   The Defendant has moved for Summary Judgment and states that based upon the entire record there is no genuine dispute of any material fact and TVA is entitled to dismissal of the complaint as a matter of law. TVA argues that Plaintiff's allegation of "blacklisting" is without merit. TVA states that the subject memorandum recommended procedures intended to focus more attention by management on the proper handling of ERA complaints and that attached to the memorandum was a status report of recent and pending cases involving ERA and other complaints of retaliation, which included a brief and accurate summary of the status of complainant's various ERA complaints and of other proceedings. TVA argues that the report was needed to enable the top nuclear power managers to be aware of these cases, so as to be able to respond to inquiries from the NRC, Congress, and others, and to self-police the treatment of persons who file complaints. TVA denies that there is any evidence to support a conclusion that the May 25, 1989, status report was intended to be a directive to discriminate against any pending or previous ERA complainant.

   The Plaintiff has submitted a response to the Defendant's motion for summary judgment in which he states that he is opposed to summary judgment and does not give consent to terminate his complaint. Billings argues that he is entitled to be given the benefit of all reasonable doubts and inferences and it must be concluded that genuine issues of material fact remain to be resolved. With his opposition, Plaintiff has submitted an affidavit from Frederick E. McCuistion, Jr., who states that his name was included in the memo of May 25, 1989; that he has many years of nuclear experience in different fields but has been unable to get a job in the nuclear industry; and that the information given in the subject memo should have been circulated in a more confidential manner.

   The Defendant has filed a response to Plaintiff's opposition stating that it raises no basis for denial of TVA's motion and that Plaintiff has not raised a "genuine issue as to any material fact."

   Plaintiff's argument that he does not consent to the termination of his complaint is without merit. A hearing is not necessary when there are no material facts in dispute.

   Twenty-nine C.F.R. Section 18.40 provides that any party may move for a summary decision on all or any part of the proceedings. It further provides:

(d) The administrative law judge may enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision ...

   The Supreme Court of the United States strengthened the "genuine" material fact issue requirements of Rule 56 of the Federal Rules of Civil Procedure in its trilogy of cases. Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986); Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505 (1986); and Celotex Corp. v. Catrett, 475 U.S. 317 (1986). The non-moving party must go beyond showing some "metaphysical doubt" concerning material facts. Matsushita, supra.

   The Plaintiff herein alleges that he was "blacklisted" by virtue of the May 25, 1989 memorandum from Edward S. Christenbury, General Counsel of TVA, to Oliver D. Kingsley, Jr., Senior Vice President at TVA. The memo discussed the handling of complaints filed under the ERA and attached a summary of 27 pending administrative ERA cases and some of the more recent ERA cases that have been resolved. Also included were summaries of six pending non-ERA cases involving Nuclear Power in which a substantial allegation of retaliation was raised.

   Defendant submitted an affidavit from Douglas R. Nichols, Assistant General Counsel at TVA, who stated that he had input and responsibility for drafting the subject memorandum and attachment and that its purpose was to advise Mr. Kingsley about the handling of ERA cases, about the status of cases pertinent to this program, and to enable top nuclear power managers to be

aware of these cases, so as to be able to respond to inquiries from the NRC, Congress, and others, and to self-police the treatment of persons who file such complaints. He stated that the status report provided information about Plaintiff's various complaints at that time which is a factual account of the complaints, dates, allegations, disposition by Wage and Hour and appeal status. An investigation by the TVA inspector general found no evidence of intent to use the list for blacklisting individuals.

   The Defendant cites the case of Street v. J.C. Bradford & Co., 886 F.2d 1472 (6th Cir. 1989), in which the U.S. Court of Appeals for the Sixth Circuit stated:

[The Supreme Court] ruled that not every issue of fact or conflicting inference presents a genuine issue of material fact which requires the denial of a summary judgment motion. Further, the court held that the materiality of any fact should be determined by the substantive law of the case. The Court went even further and held that the test for deciding a motion for summary judgment is the same as that for a directed verdict motion. There is no issue for trial, the Court stated, unless there is sufficient evidence favoring the nonmoving party for a [trier of fact] to return a verdict for that party. Thus, the Court concluded, "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the [trier of fact] could reasonable find for the plaintiff." [886 F.2d at 1477; citations omitted].

The Sixth Circuit continued:

8. The respondent cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment."

10. The trial court has more discretion than in the "old era" in evaluating the respondent's evidence. The respondent must "do more than simply show that there is some metaphysical doubt as to the material facts."

Further, "[w]here the record taken as a whole could not lead a rational trier of fact to find" for the respondent, the motion should be granted [id. at 1478-80; footnotes omitted].

   The memorandum to which Plaintiff refers contains no evidence of blacklisting. At the most, Plaintiff's charges are mere speculation and conjecture. "On issues where the non-movants bear the burden of proof..they must reliably demonstrate specific facts sufficient to create an authentic dispute..." Garside v. Osco Drug, Inc., 895 F.2d 46 (1st Cir. 1990).

   In Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309 (6th Cir. 1989), the defendant in an age-discrimination case moved for summary judgment. On the issue of whether the discharge was motivated by age, the plaintiff's sole evidence was her affidavit and deposition testimony that her supervisor once told her he "needed younger blood." The Sixth Circuit held this evidence was legally insufficient to avoid summary judgment. The isolated supervisor's statement was too "ambiguous" and "abstract" to create a genuine fact issue.

   This case contains no facts to indicate that TVA or NRC used or intended to use the subject memo for "blacklisting" the Plaintiff or other employees. The Plaintiff has not demonstrated facts sufficient to create an authentic dispute. I find that the record taken as a whole could not lead a rational trier of fact to find for the Plaintiff. Based on the record as a whole, I have determined that the Defendant's motion should be granted. Accordingly, I recommend that summary judgment be entered in favor of the Defendant against the Plaintiff and that the complaint be dismissed.

   It is, therefore,

   ORDERED that the complaint of Douglas E. Billings is hereby DISMISSED WITH PREJUDICE.

       ROBERT L. HILLYARD
       Administrative Law Judge