Cummings v. USA Truck, Inc., 2003-STA-47 (ALJ Jan. 9, 2004)

U.S. Department of Labor

Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue Date: 09 January 2004
Case No.: 2003-STA-0047

In the Matter of:

CRAIG CUMMINGS,
Complainant

v.

USA TRUCK, INC.,
Respondent

   This action arises by virtue of a complaint filed by Craig Cummings ("Complainant" or "Cummings") alleging violations by USA Truck, Inc., under § 31105 of the Surface Transportation Act, 49 USC § 31105, et seq. Complainant states that he was an employee who engaged in activities protected by the Act, and that discrimination, which is defined and prohibited by the Act, was a factor in the events leading to his dismissal.

   The charges were investigated by the Regional Supervisor, Occupational Safety and Health Administration, U.S. Department of Labor, who issued a letter dated August 7, 2003, finding the complaint to be without merit. Complainant appealed by letter dated August 19, 2003. The complaint was forwarded to the Office of Administrative Law Judges to be scheduled for hearing.

   A Notice of Hearing and Prehearing Order was issued on September 4, 2003, scheduling a formal hearing in Springfield, Missouri, commencing on January 21, 2004. The Prehearing Order required Mr. Cummings to file, by October 20, 2003, a statement of facts on which he bases his complaint, including dates, names, and events on which he relies. The Prehearing Order also provided that discovery be completed by November 28, 2003, and that the parties file a prehearing report by December 19, 2003.

   On September 18, 2003, the Complainant sent, by facsimile, a twelve-page filing consisting of: (1) the three-page letter dated August 7, 2003, giving the results of the investigation by the Regional Supervisor; (2) a one-page photocopy of STAA regulations; (3) a two-page letter with notice of appeal; (4) a copy of employee receipt signed by Complainant on May 16, 2001; and, (5) photocopies of five articles from newspaper concerning sniper shootings in the Maryland, Virginia, Washington, D.C., area. No Certificate of Service accompanied this submission.

   On October 20, 2003, a fourteen14-page submission was received by this Office containing essentially the same information provided in the September 18, 2003 facsimile. No statement of facts was included in the submission nor did it contain a Certificate of Service.

   On October 22, 2003, an Order was issued stating that the Complainant's submissions were not in compliance with the September 4, 2003 Prehearing Order for the following reasons:

   1. Mr. Cummings' submission fails to provide a statement of facts including dates, names, and events upon which he bases his complaint; and,

   2. Mr. Cummings' submission was not sent to the other parties of record, nor did it contain a Certificate of Service as described in the Prehearing Order.

   The October 20, 2003 submission was returned to the Complainant for proper service, and he was granted until November 5, 2003, to file a statement of facts on which he bases his complaint. The Order also provided that failure to comply with the Order could result in dismissal of the proceeding, entry of default judgment, or the imposition of other appropriate sanctions against the Complainant.

   On October 23, 2003, a four-page filing was received from the Complainant which did not contain a Certificate of Service.

   On November 3, 2003, a three-page filing was received which was not signed, did not contain a Certificate of Service, but which, apparently, was submitted by the Complainant.

   To expedite the process, copies of the October 23rd and November 3rd filings were mailed to all parties. Mr. Cummings was again cautioned that future filings that were not signed and/or did not contain the required Certificate of Service would be returned to him without being filed as part of the proceeding.

   On November 10, 2003, five days late, a fourteen- page filing was received from Mr. Cummings which did not contain a Certificate of Service but did include copies of twelve certified mail receipts. Included in Mr. Cummings' November 10, 2003 submission was a 1½-page statement of events and facts upon which he bases his complaint.

   On December 2, 2003, Mr. Cummings again filed a set of documents without a Certificate of Service. The December 2, 2003 submission by Mr. Cummings was not received into the record and was returned because it did not contain proof of service.

   In response to the Complainant's November 10, 2003, statement of facts, the undersigned issued a Show Cause Order on December 4, 2003, stating that:

The submissions to date by Mr. Cummings lack any arguable basis either in law or in fact and this Court views the claim, as currently asserted, as frivolous and transparently defective. Even taking all facts presented by Mr. Cummings as true and by reviewing them in a light most favorable to the Complainant, Mr. Cummings' complaint, viewed in light of his submitted statement of facts, fails to state a cause of action upon which relief could be granted. The statement of facts submitted allege no facts that substantiate his assertions. It is unclear what protected activity Mr. Cummings claims under the Act, and how the facts and events presented could support his claim.

The Order required Mr. Cummings to show cause, in writing, before December 19, 2003, why his complaint should not be dismissed for failure to state a cause of action.

   On December 19, 2003, Mr. Cummings faxed an additional set of documents to this Office. This fax submission, as with every previous submission by Mr. Cummings, did not contain a Certificate of Service. The fax submission was followed by a hard copy received by this Office on December 22, 2003. While a Certificate of Service was not included, the mailed copies did contain copies of Ppost Ooffice receipts with names and addresses of the other parties. In paragraph ten on page four of the latest submission, Mr. Cummings states that "I don't think this case should be dismissed, source (1) came from Brink's Incorporated v. [H]erman, 148 F.3rd 175 (2nd Cir. 1998) either (22) or (23)."

   A Court may dismiss a case sua sponte for failure to prosecute when the complainant disobeys Court orders regarding the proper service of documents. McClure v. Fessler , 2003 WL 136120 (9th Cir. 2003); see also, Thompson v. Housing Auth., 782 F.2d 829, 831-32 (9th Cir. 1986) (holding that dismissal for failure to comply with Court orders after the plaintiff was given ample time to comply was not abuse of discretion).

   Despite repeated warnings that failure to provide proper service to all parties, including a Certificate of Service, could result in dismissal, the Complainant has now filed eight separate submissions with this Court without once having correctly followed my instructions regarding proper service to all parties. This failure to obey my repeated Orders is enough, by itself, to warrant dismissal.

   It is well settled, however, that pleadings of pro se litigants should be judged more liberally than those drafted by experienced counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Such a liberal pro se interpretation would necessarily seem to include the materials accompanying those pro se pleadings. As such, I chose to give the Complainant every opportunity to comply with my Orders and to perfect his Complaint.

   In his statement of events, Mr. Cummings alleges that he was fired in retaliation for refusing to drive a scheduled truckload of cargo to Virginia. While the focus of the complaint is reasonably clear, the factual allegations of events filed by Mr. Cummings in support of his Surface Transportation Act claim are confusing, ambiguous, and vague. He further fails to allege what protected activity he engaged in or how the Respondent's termination of Mr. Cummings violated the STAA.

   In enacting the STAA, Congress sought to combat the "increasing number of deaths, injuries, and property damage" resulting from vehicle accidents in the interstate trucking industry. Yellow Freight Systems, Inc. v. Reich, 38 F.3d 76 (2nd Cir. 1994) (citing 128 Cong. Rec. 32509, 32510 (1982)) (emphasis added). Congress further recognized the need "to assure that employees are not forced to drive unsafe vehicles or commit unsafe acts," and to "provide protection for those employees who are discharged or discriminated against for exercising their rights and responsibilities." Id. citing Cong. Rec. 29192 (1982). See also, Brock v. Roadway Express, Inc., 481 U.S. 252, 261 (1987). For this latter purpose, Congress included Section 405 in the STAA. Id.

   In relevant part, § 405(b) of the Act prohibits discrimination against an employee for "refusing to operate a vehicle when such operation constitutes a violation of any Federal commercial motor vehicle regulation (the "when" clause of the Act), or "because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition" of a vehicle (the "because" clause). Id. at n.1 (emphasis added).

   The Complainant states that while an employee of USA Truck, Inc., he was scheduled to drive a load of freight to the Commonwealth of Virginia by way of Washington, D.C., on or about October 17, 2002. The Complainant states that because there were sniper shootings in Maryland, Virginia, and Washington, D.C., at that time, he feared for his safety, and therefore, refused to take the assignment. Mr. Cummings does not allege that he was asked to violate a commercial vehicle regulation nor does he express an apprehension (reasonable or not) that his safety was at risk due to the unsafe condition of his vehicle. Mr. Cummings also does not allege that his refusal to take the scheduled truckload was an attempt to prevent the type of commercial vehicle accident envisioned in the purpose of the Act. As such, his submission fails to allege any protected activity envisioned by the Act.

   Mr. Cummings' reliance on Brinks, Inc. v. Herman is equally unavailing. In Brink's, an armored car delivery company discharged an employee for refusing to go out on his daily run. Brink's, Inc. v. Herman, 148 F.3d 175, 176 (2nd Cir. 1998). The employee brought a STAA complaint stating that he was fired when he refused to drive an unsafe vehicle which did not contain the proper radio equipment and which was improperly leaking fuel fumes into the rear compartment. Id. at 180. The Second Circuit vacated the Secretary's Decision finding a violation, stating that the provision of radio equipment was not a valid requirement of the STAA, and further, that when the employee requested a radio set, Brinks offered to provide one. Id. In regards to the complaint of fuel fumes, the Court held that the employee never brought this complaint to Brink's attention; therefore, the company had no opportunity to review or to respond to the alleged problem. Id. at 181. The Secretary's decision was vacated with an Order to enter decision in favor of Brinks. Id.

   Mr. Cummings has at no time alleged that U.S.A. Truck supplied him with an unsafe vehicle with either missing or defective equipment. As such, Brink's offers no support for his position, and the case is irrelevant to this proceeding.

   A trial court may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a claim, 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1357 at 593 (1969), but the court must give notice of its sua sponte intention to invoke Rule 12(b)(6) and afford plaintiffs "an opportunity to at least submit a written memorandum in opposition to such motion." Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979), quoting Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir. 1970). The Complainant was given just that opportunity in my December 4, 2003 Show Cause Order.

   After review of the entire record, including the Complainant's most recent filing, I find that Mr. Cummings has failed to show cause why his complaint should not be dismissed for failure to state a cause of action as described in the Order of December 4, 2003. An apprehension that a sniper might be present in the Commonwealth of Virginia or the Washington, D.C., area at the same general time that Mr. Cummings was scheduled to deliver freight in the same general area does not fall within the employee protections provided in the Act. Further, as literally millions of other Americans went to work in Virginia and the Washington, D.C., area during the time period in question, any allegation that he was exposed to an unreasonable risk of danger is unavailing.

   It is, thereby,

   ORDERED that the complaint of Craig Cummings is DISMISSED for failure to state a cause of action. It is further,

   ORDERED that the formal hearing scheduled on January 21, 2004, in Springfield, Missouri, is CANCELLED.

      Robert L. Hillyard
      Administrative Law Judge

NOTICE: This Recommended Order of Dismissal and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C., 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).