Somerson v. Mail Contractors of America, 2002-STA-18 and 19 (ALJ Dec. 31, 2001)

U.S. Department of Labor

Office of Administrative Law Judges 603 Pilot House Drive, Suite 300 Newport News, Virginia 23606-1904 (757) 873-3099 (757) 873-3634 (FAX)

Issue date: 31Dec2001

CASE NOS.: 2002-STA-0018
    2002-STA-0019

In the Matter of:

DANIEL S. SOMERSON,
    Complainant

    v.

MAIL CONTRACTORS OF AMERICA,
    Respondent

   The above actions arise pursuant to § 31105 of the Surface Transportation Assistance Act of 1982, (hereinafter, "STAA" or the "Act") 49 U.S.C. 31101, et seq., and the regulations promulgated thereunder at 29 C.F.R. Part 1978, and the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges at 20 C.F.R. Part 18.

   On December 21, 2001, a pre-hearing order was issued, which, inter alia, ordered the Complainant, pursuant to 29 C.F.R. § 1978.106(d), to file a pre-hearing statement of position, which briefly sets forth the issues involved in the proceeding and the remedy requested. The Complainant was further directed to serve his pre-hearing statement upon all parties and this office by certified mail with an attested service sheet. The Complainant was further advised that pursuant to 29 C.F.R. § 18.3(f) documents may not be submitted by facsimile machine.

   On December 23, 2001, the Complainant transmitted a 6 page document by facsimile machine to this office, which included a cover letter and a document entitled "Pre-Hearing Statement of Position."¹ Clearly, this response does not comply with the pre-hearing order requiring service of all documents by mail upon all parties, with an attested service sheet, and prohibiting the filing of documents by facsimile machine, and the Complainant has cited no exigent circumstances requiring this filing by facsimile.² The Complainant is advised that the reason for requiring service of responses in this manner is to ensure that all parties are properly and timely served with copies of all correspondence in the case, and to ensure that ex parte contacts do not occur. Mr. Somerson, in his cover letter, further states that "I am disregarding your order that all of my correspondence will be via US MAIL. This isn't going to happen." (Emphasis in original).

   Mr. Somerson's statement in defiance of the pre-hearing order constitutes wilful failure to comply with the provisions of a court order, which could, in the absence of good cause, result in appropriate sanctions. See 29 C.F.R. §§ 18.6(d)(2) and 18.29. However, as the Complainant is, at this time, appearing pro se, his actions will result only in a warning that similar future conduct may result in the imposition of sanctions, which can include exclusion of evidence, dismissal of his complaint, and/or charges of contempt of court before the United States District Court. The Complainant is, again, strongly advised to seek the assistance of an attorney in prosecuting his complaint.

   I also note that the Complainant, in his cover letter, seems very concerned that references have not been made to (in the pre-hearing order) a web site which he authors. He also suggests that this failure somehow violates his right to a fair trial. While the Complainant is free to make advertisement references to his web site in documents he submits in these cases, the web site itself is not a party to the case. The employee protection provisions of the STAA³ only provide protection for individual employees from retaliatory action by employers as a result of protected activities. Section 31105 of the Act makes no provision for protection of entities other than individual employees (such as corporations or web sites).

   Therefore, the Complainant's request that his web site must be identified in all correspondence in this case is denied. Apparently, the Complainant may also wish to present evidence and argue that his activities in maintaining a web site constitute protected activity under the STAA. If such is the case, it must be determined whether such activity is protected under § 31105(a)(1)(A) and (B), based upon the evidence and argument presented at the hearing. In any event, there is no basis to require that all correspondence be addressed to his web site.

   Based upon the foregoing, it is hereby Ordered that:

1. Because the Complainant's pre-hearing response has not been properly served upon all parties, it is attached to this order for service;

2. Pursuant to 29 C.F.R. § 1978.106(d), the Respondent is ordered to file a pre-hearing statement of position within 3 days of receipt of this order (with Complainant's pre-hearing statement attached); such pre-hearing statement shall be served upon all parties and this office by certified mail with an attested service sheet; in view of the time constraints imposed by the Act, extensions of time will not be granted;

3. The Complainant's request that all correspondence be addressed to his web site is denied; and

4. The Complainant is strongly advised to seek the assistance of an attorney before taking any further action in prosecuting his complaint.

¹ No finding is made regarding the adequacy of the Complainant's pre-hearing statement, as the Respondent will be given an opportunity to respond.

² The rules of practice do provide for filing by facsimile in exigent circumstances, "If prior permission to file by facsimile cannot be obtained because the presiding judge is not available, a party may file by facsimile and attach a statement of the circumstances that the document be filed by facsimile rather than by regular mail. That statement does not ensure that the filing will be considered by the presiding judge in determining whether the facsimile will be accepted nunc pro tunc as a filing." See, 29 C.F.R. § 18.3(f)(1).

³ 31105. Employee protections

(a) Prohibitions.--
    (1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because--

(A) the employee, or another person at the employee's request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding; or
(B) the employee refuses to operate a vehicle because--

(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.

    (2) Under paragraph (1)(B)(ii) of this subsection, an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health. To qualify for protection, the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.