Cefalu v. Roadway Express, Inc., 2003-STA-55 (ALJ Jan. 20, 2004)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue Date: 20 January 2004
CASE NO.: 2003-STA-55

In the Matter of:

PETER P. CEFALU
    Complainant

    v.

ROADWAY EXPRESS, INC.
    Respondent

   This proceeding arises under the employee protection provisions of Section 405 of the Surface Transportation Assistance Act ("STAA") of 1982, as amended and re-codified, 49 U.S.C. § 31105, and its implementing regulations, 29 C.F.R. Part 1978. A hearing is scheduled before the undersigned in Chicago, Illinois on January 27-28, 2004. On December 8, 2003, Complainant filed a Motion to Compel Discovery and Strike Objections because Respondent would not reveal the identity of a "confidential source." Respondent filed a response on December 11, 2003, arguing that the identity of the confidential source was privileged and not relevant. On December 16, 2003, I issued an Order Granting Motion to Compel Discovery and Striking Objections, finding that Respondent had not articulated a recognizable privilege to protect the confidential source's identity and that the identity was relevant to the discovery process. In a letter dated December 23, 2003, Respondent notified the Court that it would not reveal the identity of the confidential source under any circumstances. On January 6, 2004, Complainant filed a Motion for Sanctions, requesting that judgment be entered against Respondent for its failure to comply with the Court's Order. On January 14, 2004, Respondent filed its Response in Opposition to Complainant's Motion for Sanction, arguing that default judgment should not be entered in Complainant's favor because it "has answered discovery to Complainant's satisfaction (with one notable exception), and has respected the orders and deadlines imposed by the ALJ (again, with one notable exception)." Respondent's Response, p. 7. It also argues that a default judgment as a sanction is not proportional to the violation, and proffers that limited attorney fees and costs related to the discovery dispute would be a more appropriate sanction.

   Sanctions for a party's failure to comply with an order of court are governed by 29 C.F.R. § 18.6(d)(2). I find that a default judgment is not an appropriate sanction in this case because Complainant has not yet established his prima facie case. However, I also find that limited attorney's fees are not an appropriate sanction because it is not proportional to Respondent's failure to comply with the Court's Order. After consideration of the parties' briefs and the Regulations, I find that Respondent shall not be permitted to present any evidence that arose

from the unidentified confidential source, including, but not limited to, the testimony of the individual(s) who confirmed that Complainant was terminated from his prior employment, the testimony of the individual(s) who made the decision to terminate Complainant, and any related documentary evidence.

   IT IS ORDERED THAT Complainant's Motion for Sanctions is GRANTED.

      DANIEL L. LELAND
      Administrative Law Judge