Dickson v. Butler Motor Transit/Coach USA, 2001-STA-39 (ALJ July 15, 2002)

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: 15Jul2002
CASE NO.: 2001-STA-39

In the Matter of:

HERBERT DICKSON
    Complainant

   v.

BUTLER MOTOR TRANSIT/COACH USA
    Respondent

   On June 18, 2002, Respondent submitted a Motion to Dismiss for Failure to Comply with Orders of the Administrative Law Judge. In support of this Motion, Respondent submitted the certification of Heather R. Boshak, Esquire. The certification avers the information that follows. Complainant filed a complaint pursuant to the Surface Transportation Assistance Act on or about August 16, 2000 alleging that he was subjected to a hostile work environment "by Union members for allegedly refusing to drive in an unsafe manner, speed and falsify logs and time sheets." See Respondent's June 18, 2002 Motion at paragraph 2. Complainant further alleged that he was "retaliated against by being discharged for seeking protection from the Union harassment" as well as being "blackballed in the industry." Id.

   Complainant's complaint was investigated and dismissed by the Department of Labor, Occupational Safety and Health Administration on March 9, 2001. Id. See also Exhibit A to the June 18, 2002 Motion. On April 16, 2001, Complainant filed a second complaint against Respondent alleging that he was retaliated against "for filing the prior complaint by making ‘false official statements' at an unemployment hearing." Id. at paragraph 3. The second complaint was dismissed by the Department of Labor, Occupational Safety and Health Administration on April 23, 2001. Id. See also Exhibit B to the June 18, 2001 Motion.

   Complainant appealed the dismissal of his second complaint on April 28, 2001. Id. at paragraph 4. See also Exhibit C to the June 18, 2002 Motion. Respondent filed a Motion for Summary Decision that was denied by Order of November 20, 2001. Id. at paragraph 5. Complainant was served with Respondent's First Set of Interrogatories and Request for Production of Documents. Id. at paragraph 6. Complainant did not respond to Respondent's interrogatories and request for production of documents. Id. at paragraph 7.

   Respondent subsequently filed a Motion to Compel Discovery on February 6, 2002. Id. at paragraph 8. The motion to compel went unopposed by Complainant and by Order, dated March 26, 2002, this Court granted Respondent's motion to compel. Id. at paragraphs 9 & 10. Complainant was required to respond to Respondent's discovery requests no later than April 10, 2002.

   Complainant did not respond to the Order of this Court. Complainant's counsel, Paul Taylor, Esquire, requested that he be permitted to withdraw as counsel of record on April 3, 2002. Id. at paragraph 12. Respondent expressed concern "at the impact the withdrawal of counsel would have on the case, specifically addressing that Complainant failed to comply with Judge Lesnick's Order requiring him to provide his long outstanding discovery responses ..." Id at paragraph 13.

   This Court issued an Order, dated April 25, 2002, granting Mr. Taylor's request to withdrawal as counsel of record and advising Complainant of the consequences of his failure to comply with the discovery requests. The April 25, 2002 Order required Complainant to "provide responsive answers to Respondent's First Set of Interrogatories and Respondent's First Request for Production of Documents no later [than] May 10, 2002." Respondent avers that Complainant has not complied with the discovery requests. Id. at paragraph 15. Respondent requests that Complainant's complaint be dismissed "for failure to comply with the Orders of the Administrative Law Judge." Id. at paragraph 22. Complainant has failed to respond to Respondent's motion.

   By Order, dated April 25, 2002, Complainant was advised of the consequences of his failure to comply with Respondent's discovery requests. Complainant has been provided with multiple opportunities to comply with Respondent's requests. Complainant has failed to respond to any of the Orders of this Court. Because of this failure, I am unable to excuse his failure to comply with Respondent's requests. As such, I find in favor of Respondent in the above-captioned claim pursuant to 29 C.F.R. Part 18.6(2)(d)(v). Additionally, I find that Complainant's failure to answer to any notices of this Court constitutes abandonment pursuant to 29 C.F.R. Part 18.5(b).

   IT IS HEREBY RECOMMENDED that the claim of Herbert E. Dickson be DISMISSED WITH PREJUDICE.

       ROBERT J. LESNICK
       Administrative Law Judge

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