Sabin v. Yellow Freight System, Inc., 2003-STA-5 (ALJ Nov. 14, 2003)

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Sabin v. Yellow Freight System, Inc., 2003-STA-5 (ALJ Nov. 14, 2003)

U.S. Department of Labor Office of Administrative Law Judges
2 Executive Campus, Suite 450
Cherry Hill, NJ 08002
(856) 486-3800
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Issue Date: 14 November 2003

CASE NO: 2003-STA-5

In the matter of

BRYCE SABIN
Complainant

YELLOW FREIGHT SYSTEM, INC.
Respondent

FINAL DECISION AND ORDER APPROVING COMPLAINANT'S WITHDRAWAL OF OBJECTIONS TO THE SECRETARY'S FINDINGS, REINSTATING AND AFFIRMING THE SECRETARY'S FINDINGS, DISMISSING CLAIM WITH PREJUDICE, AND AWARDING RESPONDENT COSTS

This matter arises under the employee protection provisions of section 405 of the Surface and Transportation Assistance Act of 1982, 49 U.S.C. § 31105 (hereinafter the "STAA"), with its implementing regulations found at 29 C.F.R. Part 1978. On March 11, 2002, the Complainant, Mr. Bryce Paul Sabin, filed a complaint with the Occupational Safety and Health Administration, alleging that the Respondent, Yellow Freight System, Inc., terminated him because he engaged in protected activity. After investigation, the Secretary determined that the complaint lacked merit. The Complainant appealed the Secretary's decision to the Office of Administrative Law Judges.

On July 18, 2003, Counsel for the Complainant, Mr. Paul O. Taylor, filed a Motion for Leave to Withdraw as Attorney. On July 21, 2003, the request to withdraw as representative was granted and the Respondent filed a Motion for Summary Judgment. By facsimile received in this Office on August 5, 2003, the Complainant, acting in a pro se capacity, submitted an incomplete reply to the Motion for Summary Judgment. The claim was continued and the Complainant was provided additional time to reply to the Motion for Summary Judgment. On August 20, 2003, the Complainant submitted a reply. Thereafter, on August 26, 2003, the Motion for Summary Judgment was denied and the case was set for hearing.

A formal hearing was held on October 7, 2003, in Chicago, Illinois. At the hearing, the Complainant requested a continuance on the ground that he expected to file a State claim against the Respondent (Tr. 4-5). The continuance was denied (Tr.5). The Complainant then moved to withdraw his objections to the Secretary's findings (Tr. 6).¹ The Respondent stated that they not object to a withdrawal if the claim was dismissed with prejudice (Tr. 8). The Motion to Withdraw was granted and the claim was dismissed with prejudice (Tr. 9).

On October 16, 2003, counsel for the Respondent submitted a Citation to Law in Support of Respondent Yellow Transportation, Inc.'s Bill of Costs. Citing the Federal Rule of Procedure 54(d) and 28 U.S.C. 1920, the Respondent argues that they are entitled to $3,286.50 for costs.²

Thereafter, on October 30, 2003, the Complainant filed an objection to the Respondent's Bill of Costs. The Complainant maintains that awarding costs to the Respondent would "put an undue hardship on pursuit of [his] State claim" and "put a chilling effect on others who want to report wrongdoing, but do not want to risk the cost."

[Page 2]

Section 1978.111(c) of 29 C.F.R., permits a party to withdraw objections to the Secretary's preliminary findings or preliminary order at any time before the findings or order become final. When such withdrawal occurs before the ALJ or the Secretary, it is required that an order be issued affirming "any portion of the findings or preliminary order with respect to which the objection was withdrawn." 29 C.F.R. § 1978.111(c). If the case is before the ALJ, the ALJ's order becomes the final administrative order in the case. Underwood v. Blue Springs Hatchery, Case No. 87-STA-21, Order to Show Cause, issued September 23, 1987.

When dealing with a pro se complainant, an ALJ has a duty to ascertain whether the complainant is aware of the effects of a request for dismissal. Hester v. Blue Bell Services, 86-STA-11 (Sec'y July 9, 1986), slip op. at 4-5 n.3

Here, the Complainant requested a withdrawal of his objections to the Secretary's findings, which found that Respondent was not in violation of the STAA. At the hearing, it was explained to the Complainant that he would not be able to refile his claim if a withdrawal was granted. The Complainant stated that he understood such and the Motion to Withdraw was granted (Tr. 9). Consequentially, I reinstate and affirm the Secretary's preliminary findings.

Whether the Respondent is entitled to costs must also be determined. A voluntary dismissal of a complaint under the STAA is governed by Rule 41 of the Federal Rules of Civil Procedure. Subsection (a)(1) of Rule 41 is applicable when the respondent has not filed the functional equivalent of an answer to the complaint or a Motion for Summary Judgment. Reece v. Detroit Edison, 92-ERA- 1(Sec'y Apr. 9, 1992). Rule 41(a)(2) is applied when the respondent has made such filings.

Because the Respondent has filed a Motion for Summary Judgment, Rule 41 (a)(2) must be applied. Unlike subsection 41(a)(1), subsection 41(a)(2) allows costs to be imposed on the Complainant. Lujan v. Los Alamos National Laboratory, 93-CAA-8 (ALJ Nov. 24, 1993). The United States Court of Appeals for the Seventh Circuit explained that in the case of a dismissal the party seeking the voluntary dismissal should reimburse the opposing party for "expenses incurred in preparing work product that will not be useful in subsequent litigation of the same claim." Cauley v. Wilson 754 F.2d 769 (1985).

The Secretary of Labor providing the following rationale for awarding costs:

[i]t is fairly consistently held that a plaintiff normally will not be permitted to dismiss, after defendant has been put to expense in preparing for trial, except on condition that plaintiff reimburse defendant for his expenses, sometimes including a reasonable attorney's fee. Alternatively, instead of conditioning an order of dismissal on payment of defendant's expenses, a court may grant a motion to dismiss, but condition any refiling of an action against defendant on payment of his expenses.

Hester v. Blue Bell Services, 86-STA-11 (Sec'y July 9, 1986) citing 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice, S 41.06 (2d ed. 1981). Accord McCants v. Ford Motor Co., Inc., 781 F.2d 855, 860 (11th 1986); American Cynamid Company v. McGhee, 317 F.2d 295, 298 (5th 1963); Bishop v. West American Insurance Company, 95 F.R.D. 494, 495 (N.D. Ga. 1982).

[Page 3]

Although a reasonable attorney's fee and expenses are compensable, it is important to note that traditional clerical expenses, such as local telephone calls, photocopying, and postage are not recoverable. Such expenses must be considered part of the office overhead expenses when an attorney sets the hourly rate and cannot be included in an award of a representative's fee…" Johnson v. Roadway Express, Inc, 1999-STA-5 (ALJ Sept. 3, 1999).

In the instant claim, the Complainant did not inform the Respondent of his withdrawal of objections to the Secretary's findings until Friday, October 3, 2003, when the Respondent had already traveled to Chicago. Therefore, I find that the Respondent shall be awarded $150.00 for the costs associated with their witness. The remainder of the expenses requested by Respondent, however, must be denied. They represent fees for clerical expenses. Accordingly,

ORDER

IT IS HEREBY ORDERED that:

1. Pursuant to 1987.111(c) of 29 C.F.R., the Secretary's findings are REINSTATED and AFFIRMED.
2. The above-captioned claim is DISMISSED WITH PREJUDICE.
3. The Complainant, Mr. Paul Sabin, shall pay counsel for the Respondent, Anderson B. Scott, Esquire, $150.00 for costs.

GERALD M. TIERNEY
Administrative Law Judge

[ENDNOTES]

¹ At the hearing, the Complainant submitted to the Court a written Motion to Withdraw Objections to the Findings. The Motion stated that "[p]ursuant to 29 U.S.C. 1978111(c), the Complainant is withdrawing his objections to the findings by OSHA of Yellow Freight/Sabin/5-1260-02-021" in order for the Complainant to move forward with a State claim.

² The Respondent provided documentation of the specific expenses that they incurred.