Schemm v. Pro Transportation, Inc., 2001-STA-11 (ALJ Jan. 19, 2001)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue date: 19Jan2001
CASE NO.: 2001-STA-11

IN THE MATTER OF

RALPH N. SCHEMM,
    Complainant

    v.

PRO TRANSPORTATION, INC.,
and JEFF ESRY,
    Respondent

BEFORE: Clement J. Kennington
    Administrative Law Judge

   This matter arises pursuant to respondent Jeff Esry's (Esry) Motion to Dismiss filed on January 3, 2001 and Complainant's January 8, 2001, Memorandum in Opposition to the Motion to Dismiss. Respondent's motion sought a dismissal of Esry as a named party in any proceeding before the Department of Labor on the grounds that Esry was allegedly not individually notified that he was a named party until November 22, 2000 and that Esry was not a party to the Secretary's Findings and Order. As well, Esry asserted that no relief was ordered by the Secretary against Esry individually, thus he should be dismissed as a party to the proceeding. Complainant asserted that his October 26, 1999 amended complaint, filed with William McConnell of the Occupational Safety and Health Administration (OSHA)/U.S. Department of Labor, clearly named Esry as a party and that Esry, as the person who discharged Complainant, was properly named as a party-respondent.

   In Gagnier v. Steinmann Transportation, Inc., 91-STA-46 (Sec'y July 29, 1992), the Administrative Law Judge (ALJ) properly allowed the amendment of the complaint to add as parties the individuals who made the termination decision where they had been referenced in the charges set forth in the Complainant's formal complaint, participated in the investigation, and were notified of the proceedings.

   In Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y Dec 30, 1991), the respondents argued that the ALJ in that case had incorrectly allowed an amendment to the pleadings to include the individual who actually discharged the complainant therein as a party-respondent. The Secretary allowed the amendment to pleadings to add the individual who actually discharged the complainant to be added as a party respondent, finding the ALJ did not err in allowing an amendment to the pleadings to include Mr. Bolin (CEO of respondent Bolin Associates), individually, as a party. The Secretary noted that 29 C.F.R. §§ 18.5(e) provides, in pertinent part, that the ALJ may allow appropriate amendments upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, where the amendment is reasonably within the scope of the original complaint. Bolin's individual employment decision was specifically challenged in the original complaint. Inasmuch Bolin received notice from the outset and participated in the investigation and all proceedings, the amendment was proper and consistent with cases arising under Rule 15 of the Federal Rules of Civil Procedure to the extent that that rule is applicable pursuant to 29 C.F.R. §§ 18.1(a). Id. citing Barkins v. International Inns, Inc., 825 F.2d 905, 907 (5th Cir. 1987); Itell Capital Corp. v. Cups Coal Co., Inc., 707 F.2d 1253 1258 (11th Cir. 1983); Serrano v. Collazo Torres, 650 F. Supp. 722, 725-29 (D.P.R. 1986). Esry has shown no prejudice by his inclusion as a party-respondent. Esry, as CEO of respondent Pro Transportation, Inc., and the person who actually discharged Complainant, is a proper party to this proceeding and was properly named as a party-respondent by the Complainant in his amended complaint.

   Complainant was not required to serve this complaint upon the respondents. He was merely required to file the complaint with the Secretary of Labor. 49 U.S.C. §31105 (b). Under the Rules of the United States Department of Labor for implementing section 405 of the Surface Transportation Assistance Act of 1982, 29 U.S.C. Part 1978, Complainant merely had to file his complaint with any OSHA employee. 29 C.F.R. §1978.102 (c). While OSHA is supposed to provide a copy of the complaint to the respondents, 29 C.F.R. §1978.102 (f), there is no such requirement for complainants.

   Complainant clearly named Esry as a party to this proceeding when he filed his complaint with the Secretary of Labor. Esry, as the individual who made the termination decision, was referenced in the charges set forth in the Complainant's formal complaint. Esry, CEO of respondent Pro Transportation, was notified of the proceedings. Esry has not shown any prejudice by being included as a party-respondent and Complainant properly filed his complaint with William McConnell of OSHA. Accordingly, respondent Esry's Motion For Dismissal is denied.

   IT IS HEREBY ORDERED that respondent Esry's Motion for Dismissal is DENIED.

   ORDERED this 19TH day of January, 2001, at Metairie, Louisiana.

       CLEMENT J. KENNINGTON
       Administrative Law Judge