Somerson v. Mail Contractors of America, Inc., 2002-STA-44 (ALJ Nov. 14, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Issue Date: 14 November 2002
CASE NO: 2002-STA-44

In the Matter of:

DANIEL S. SOMERSON,
    Complainant,

    v.

MAIL CONTRACTORS OF AMERICA, INC.,
    Respondent.

   On November 7, 2002, Respondent filed a Motion Seeking Protective Order and Witness Interview Restriction, alleging that "[b]oth before and following the September 10-19, 2002 hearing in this matter Complainant has (a) directly and recently anonymously sent Respondent's counsel and Respondent's management witnesses insulting and abusive e-mails, a practice that continues to date, and (b) opened anonymous web sites directed at both the undersigned counsel and Respondent." Attachment A to the motion consists of twelve samples of such e-mails one apparently directed to the prospective witness Gray, two to the witness Cole, who has previously testified, and six to Respondent's counsel Davis. The attachment also includes two pages, apparently from a website, containing similar abusive characterizations directed at counsel Davis, an officer of the court. The communications are vulgar, abusive, and in some cases, Respondent suggests with good cause, implicitly threatening. Respondent requests that this tribunal issue a show cause order as prelude to issuance of a Protective Order prohibiting all such conduct or similar activities in the future. Respondent also requests reconsideration of the suggestion of this tribunal to Respondent's counsel that the interview of Respondent's supervisor, Richard Mason by Complainant's counsel be allowed outside of the presence of Respondent's counsel and that any such interview be so arranged that Respondent's counsel can be present telephonically.

   Although the communications identified by Respondent's counsel are facially anonymous, Respondent suggests that there is no doubt that Complainant is responsible for them. The circumstances so suggest. However, Complainant's counsel has filed a response renewing his prior motion previously denied to disqualify Mr. Davis as counsel and filing Complainant's "Twelfth Motion In Limine and Motion To Strike the Impertinent, Irrelevant Filing of Alleged Post Trial Protected Activity." Complainant's response suggests that Respondent is seeking to prejudice the Court with evidence of alleged protected activity, to wit, the post-firing status of either Complainant's web site or other web sites, and suggests that the argument and exhibits should be stricken as irrelevant. The nature and circumstances of the communications, however, suggest an intentional interference with the processes of justice. Implicit in Complainant's response, which includes a reiteration of free speech rights, and does not include a denial, is an admission that Complainant is the source of the offensive material.

   In connection with a previous proceeding before the Office of Administrative Law Judges, a Consent Order was issued in re Daniel S. Somerson, Case No.: 3:02-ev-121-J-20-TEM, Unmited States District Court, Middle District of Florida, Jacksonville Division, which ordered, inter alia, "[t]hat Daniel Somerson shall conduct himself within the bounds of appropriate respect and decorum, albeit with allowance for appropriate zeal and vigor, during any proceedings, and any matter related thereto, held under the authority of the Office of Administrative Law Judges, U.S. Department of Labor, and regarding any other official purpose with any person or organization of the Office of Administrative Law Judges, U.S. Department of Labor, wherein Daniel S. Somerson is a party, a representative, a witness or other participant."

   In addition, 29 CFR §18.36 provides that all persons appearing in proceedings before an administrative judge are expected to act with integrity, and in an ethical manner, and provides sanctions for refusal to adhere to reasonable standards of orderly and ethical conduct. 29 CFR §18.29 provides that the administrative law judge shall have all powers necessary to the conduct of fair and impartial hearing. Communications of the character alleged by Respondent are deemed inimical to the orderly conduct of a fair an impartial hearing, and inconsistent with the ethics and integrity appropriate to the conduct by the parties of such a hearing. Such conduct also tends predictably to cause complaints and other responses for just cause which create distractions and extraneous issues which require the attention of the tribunal. Complainant has ample notice that such behavior will not be tolerated. Wherefore,

   Complainant is directed to show cause not later than close of business on November 18, 2002, why the facts relating to the misconduct alleged should not be certified to the U.S. District Court which has retained jurisdiction, and why the pending complaint, 2002 STA 44, should not be immediately dismissed with prejudice. As part of any response to this order, Complainant shall admit or deny that he is the originator of the communications complained of. Failure to admit or deny as required shall be deemed an implicit admission.

       EDWARD TERHUNE MILLER
       Administrative Law Judge

Washington, D.C.