was untimely because
it was not filed within thirty days after Complainant was
notified by letter dated August 2, 1989 that his employment would
be terminated on October 31, 1989.
Complainant opposes Respondent's motion, and in
an Answer to Respondent's Motion to Dismiss states that
Complainant did not receive Respondent's letter dated August 2,
1989 and that it was not until September 26, 1989 that he learned
his employment was going to be terminated.
I note that Respondent's letter dated August 2,
1989 is addressed to Complainant at his place of employment, not
his residence. Further, the record contains no evidence
establishing that Complainant received Respondent's letter more
than thirty days prior to the date on which he filed the
complaint. Therefore, there remains a dispute regarding a genuine
issue of material fact. Under these circumstances, and as
Respondent's motion constitutes a motion for summary judgment or
summary decision, the motion must be denied. 29 C.F.R.
§18.40(d).
II. The Amended Motion to Dismiss
By letter dated April 16, 1990 Respondent
[Page 2]
submitted an Amended Motion to Dismiss. This motion alleges that
in conversation during March 1989 and in a letter dated March 23,
1989, Respondent notified Complainant he would be terminated on
October 31, 1989. As these allegations are being made formally
for the first time, and the amended motion is being submitted at
the "eleventh hour n before the hearing, and because the
regulations do not require that Complainant submit a response to
the amended motion until at least May 1, 1990--after the dates
scheduled for the hearing--I shall deny the amended motion. 29
C.F.R. §§18.6(b), 18.4(c)(3).
III. The Motion to Compel Discovery or Postpone the
Hearing
On April 9, 1990 Respondent filed a Motion for
Order Compelling Discovery or Granting a Continuance. In this
motion, Respondent states that on April 4, 1990 it sent a Notice
of Oral Deposition to Complainant's counsel, scheduling a
deposition of Complainant for April 16, 1990. The motion also
avers that Complainant's counsel "is unavailable for
deposition any day between April 6 (sic) and the dates scheduled
for hearing in this matter" (viz., April 26 and April
27, 1990). The motion requests that I either order the oral
deposition of Complainant prior to the scheduled hearing, or
continue the hearing to a later date.
The relevant background here is that the
hearing initially was scheduled, by notice issued on November 21,
1989, to take place on December 1, 1989. Respondent's counsel
requested a continuance. I granted the request and rescheduled
the hearing for February 21, 1990. Respondent's counsel again
requested a continuance. I granted the second request and
rescheduled the hearing for April 26, 1990. Thus, the hearing
already has been postponed over four months at Respondent's
urging. Further, Respondent has failed to explain why it waited
until April 4, 1990 to seek to depose Complainant. Finally,
Respondent concedes Complainant's counsel is not available to
represent Complainant at a deposition prior to April 26, 1990.
Under these circumstances, I find that Respondent has not shown
good cause why at this late date I should order that Complainant
undergo a deposition or postpone the scheduled hearing. Moreover,
Respondent has not asserted that it will be prejudiced if it is
unable to depose Complainant.
In light of the foregoing, I shall deny
Respondent's motion. 29 C.F.R. §§18.28(a),
18.29.
ORDER
Respondent's Motions to Dismiss and Motion for
Order Compelling Discovery or Granting a Continuance are DENIED.
ROBERT D. KAPLAN
Administrative Law Judge
DATED: APR 18 1990
Camden, New Jersey
[ENDNOTES]
1The motion
incorrectly states that the complaint was filed on November 12,
1989.
