The Complainant's Statement of Position was served by facsimile on May 24, 2002 at 9:30 p.m., i.e., well after the close of business on the Friday of the Memorial Day holiday weekend, and without leave to file by facsimile, as the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges require at 29 C.F.R. §18.3(f). It was filed on May 28, 2002. It fails to contain the elements required in the Pre-hearing Order of January 28, 2002. The Statement should have stated the name and address of each "witnesses to testify... immediately followed by a precise statement of what the testimony will prove and a detailed explanation of the relevance of that testimony. General statements about the topics the testimony will cover are insufficient," and listed the "exhibits by which disputed facts will be litigated, immediately followed by a precise statement of exactly what the document will prove and a detailed explanation of the relevance of that proof." In view of United's unanswered motion in limine, compliance with the Pre-hearing Order would have assisted in determining what would be relevant testimony and documents at a trial. It also would have assisted me in preparation for the trial. I still do not know the precise action(s) Complainant relies on as his protected conduct, something which should have become clear in the summary of his testimony, or the explanation of the relevant exhibit reporting some action of United either internally or to a federal authority.

The reply to Complainant's response to the Order to Show Cause states that United had expended significant time and resources in preparing for the cancelled hearing, and was prepared to defend the claim on the date set. I have no reason to doubt this assertion, for the motion in limine reflects analysis of discovery materials and preparation for trial, as does its timely Statement of Position.

Had there been only a single instance of a failure to comply with rules promulgated to guide these proceedings or specific orders entered in this case, minor sanctions might have been appropriate. Here there have been several failures by Complainant. The most egregious was the failure to file a timely pre-hearing Statement of Position, which caused the cancellation of the hearing and wasted effort on the part of Respondent in preparation for it, followed by the belated Statement's failure to meet the requirements set in the Pre-hearing Order. Complainant still has filed no response to the motion in limine. Without a direct response, the truncated Statement of Position makes it impossible for me to infer from what Complainant has filed whether or not the arguments in Respondent's motion in limine are well taken. Observing the pre hearing disclosure requirements accomplishes at least 3 things. It allows me to prepare for the matters to be raised at trial, gives both parties notice of the exact evidence they will be required to face at trial, and promotes settlement, as each party evaluates its contentions and positions in light of the evidence to be offered. These goals are frustrated when a party does not make the full disclosures the pre hearing orders require.

While the sanction of dismissal is extreme, it is warranted here. Complainant became subject to the sanctions enumerated at 29 C.F.R. § 18.6(d)(2) by failing to comply with procedural orders entered in this case. The lesser sanction of prohibiting the Complainant from presenting witnesses or exhibits, because they have been insufficiently disclosed or explained in the belatedly filed Statement of Position is appropriate under 29 C.F.R. § 18.6(d)(2)(iii). But professing to impose only this lesser sanction sets up an absurd result. Complainant bears the burden of proof, so the prohibition from presenting witnesses or exhibits renders any trial a meaningless exercise. There is no reason to require Respondent to bear the expense to bring witnesses to Long Beach to attend such a trial, and no point in having Complainant attend just to be mute. Complainant had notice from the outset that failure to meet his procedural obligations would lead "to the exclusion of evidence at trial and such other sanctions as may be deemed appropriate." See the Orders referenced at footnote 2. Because he should be prohibited from presenting witnesses or exhibits, entry of a decision against him is appropriate, and authorized under 29 C.F.R. § 18.6(d)(2)(v). See also, 29 C.F.R. §1979.107(a), which incorporates the Rules of Practice and Procedure of the Office of Administrative Law Judges into hearings under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century.

I believe these factors weigh in favor of dismissal. Complainant here is represented by counsel; he therefore should have been informed about the consequences of failing to make submissions in a timely manner, for the consequences were clearly delineated in the orders requiring the filings. I would feel obligated to give Complainant more latitude had he appeared pro se, but that was not the case. Respondent has already suffered some prejudice in that it expended time and money to file submissions when Complainant did not do the same, and to prepare for a hearing cancelled shortly before its scheduled time. To require Respondent to expend money to prepare for a hearing which, as mentioned above, would not serve any purpose would be manifestly unfair. As to the drawn out nature of this case, I have already noted Complainant is not guilty of a single procedural failure or default, but several failures to comply

with procedural rules or orders. It is inconceivable to me that a party could neglect to prepare and file a pre hearing Statement of Position through oversight. Had it been timely prepared, but filed or served slightly after the time due, the matter would be less serious. Here it is obvious the document had not been prepared, for Claimant required until the late hours of May 24, 2002 to fax to the opponent something that ought to have been filed on May 11, 2002. Finally, when I ordered that it be prepared, the Complainant's Statement of Position failed to disclosed the information required by the Pre hearing Order for all witnesses and exhibits. The most appropriate sanction, prohibiting Complainant from presenting witnesses and exhibits because his pre hearing disclosures about them were inadequate, makes Complainant's case moot. It has the same effect of dismissal, but outright dismissal avoids a meaningless hearing.

In sum, I find that Complainant's repeated failure to make timely submissions that adequately meet procedural requirements indicates either an unwillingness or an inability to prosecute this case appropriately.

It is therefore ORDERED that a final decision is entered against the Complainant in this proceeding for repeated failure to meet his procedural obligations. See 29 C.F.R. §18.6 (d)(2)(v).

       William Dorsey
       Administrative Law Judge

NOTICE OF APPEAL RIGHTS: This decision shall become the final order of the Secretary of Labor pursuant to 29 C.F.R. § 1979.110 (2002), unless a petition for review is timely filed with the Administrative Review Board ("Board"), U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington DC 20210. Any party desiring to seek review, including judicial review, of a decision of the administrative law judge must file a written petition for review with the Board, which has been delegated the authority to act for the Secretary and issue final decisions under 29 C.F.R. Part 1979. To be effective, a petition must be received by the Board within 15 days of the decision of the administrative law judge. The petition must be served on all parties and on the Chief Administrative Law Judge. If a timely petition for review is filed, the decision of the administrative law judge shall be inoperative unless and until the Board issues an order adopting the decision, except tht a preliminary order of reinstatement shall be effective while review is conducted by the Board. The Board will specifiy the terms under which any briefs are to be filed. Copies of the petition for review and all briefs must be served on the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, DC 20210. See 29 C.F.R. §§ 1979.109(c) and 1979.110(a) and (b).