Bowers v. Radian International, 2000-CER-2 (ALJ Jan. 31, 2001)

U.S. Department of Labor

Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Date: Jan. 31, 2001
Case No.: 2000-CER-2

In the Matter of

THOMAS E. BOWERS
    Complainant

    v.

RADIAN INTERNATIONAL
    Respondent

   Thomas E. Bowers filed a complaint of discrimination under Section 110 of the Comprehensive Environmental Response, Compensation and Liability Act (hereinafter CERCLA) with the U.S. Department of Labor. That complaint was subsequently investigated and the investigation did not verify that discrimination was a factor in Mr. Bowers separation from Radian International. Mr. Bowers appealed that determination by way of a handwritten note which states "I would like to Appeal this decision." Following the appeal, the case was referred to this office for hearing.

   Upon receipt of the case file, I issued an Order on August 31, 2000, which directed the parties to advise me as to several matters important to the proper hearing of the matter. The parties were given three days from the date of receipt of the Order within which to respond. A response was received from Radian International but Thomas E. Bowers did not respond to that directive.

   Subsequently, I issued a Notice of Hearing and Pre-hearing Order on October 17, 2000 which scheduled this case for trial on February 6, 2001 in Springfield, Missouri. The Pre-hearing Order compelled the parties to have a pre-hearing exchange at least ten workdays prior to the scheduled hearing date and to provide the Court with a variety of information. The Pre-hearing Order also advised the parties that a failure to timely comply with the Order without good cause may result in the dismissal of the proceeding or the imposition of other appropriate sanctions. Once again, the Respondent timely complied whereas no response has been filed by the Complainant. This office has been unable to contact Mr. Bowers by way of telephone. However, none of the mailings to his last known address have been returned.

   By facsimile transmission on January 29, 2001, Jack L. Campbell, counsel for the Respondent, has now moved to dismiss this case upon the basis that the complaint was filed untimely. He alleges that the layoff of Mr. Bowers occurred on December 17, 1999 and that the complaint filed by Mr. Bowers was not lodged until February 3, 2000. Therefore, it is alleged that Mr. Bowers is in violation of 29 C.F.R. § 24.3(b). Mr. Campbell requests that this case be dismissed due to lack of jurisdiction.

   In addition to the potential jurisdictional problem, the Complainant has failed to comply with two earlier Orders and has made no responsive statements or made any effort to prosecute this case. Therefore IT IS ORDERED that Thomas E. Bowers show cause on or before February 16, 2001 as to why this case should not be dismissed on jurisdictional grounds and for the reason that Complainant has failed to comply with my earlier directions. 29 C.F.R. § 24.6(e)(4). The Pre-hearing Order provided full warning as to the potential consequences if a party failed to properly respond.

   In view of the above, this case is hereby postponed from the scheduled February 6, 2001 hearing date in Springfield, Missouri pending the Complainant's response to this Order.

       Rudolf L. Jansen
       Administrative Law Judge