without prejudice under Rule 41(a)(2), F.R.Civ.P., if the continuance were denied. After Employer filed a written opposition, supported by an affidavit, a telephonic hearing was convened on Complainant's motions on September 15, 2003. Claimant's counsel supplemented the motion with an affidavit after the hearing, to which Employer responded. Given the stringent standard established in the governing regulation, Complainant presented insufficient grounds to justify a continuance. Complainant clearly stated at the motion hearing that he will not appear for trial. As a result, the claims should be dismissed.
As a quality assurance inspector of oil tanks in the Valdez Marine Terminal in Valdez, Alaska for the Alyeska Pipeline Service Company, Complainant was an employee of Kakivik Management, Inc., which had contracted with Alyeska to perform quality assurance inspections. He alleged he was laid off on October 13, 2002 in retaliation for reporting to the Alaska Department of Environmental Conservation and to the Federal/State Joint Pipeline Office of Alaska that oil may be seeping into the ground from faulty repairs of oil storage tanks. The original trial setting in June 2003 was continued without objection, after a death in the family of counsel for Complainant. The current trial date was set in early May 2003.
Complainant made additional claims of employment discrimination which he contends occurred after his October 2002 layoff, when Employer did not re-hire him during the 2003 Alaskan inspection season. OSHA forwarded this new complaint to the Office of Administrative Law Judges in mid-August 2003 before conducting any investigation of it, so that the new allegations could be consolidated with the pending trial. The new complaint added a claim of protection under the newly effective Pipeline Safety Improvement Act of 2002, 29 U.S.C. § 60129. During the telephone hearing held on August 26, 2003 to determine whether preparation of evidence about the additional claims could be completed before the September 2003 trial date, Complainant expressed no reservation about the trial date and sought no continuance; Employer consulted with its managers and undertook to prepare its defense to those additional claims immediately, in order to maintain the September trial date. See Employer's letter of September 2, 2003.
Complainant alleges in the continuance motion that he cannot be prepared for trial for two reasons:
He just received Employer's responses to discovery which he propounded recently, and
He also seeks the continuance to begin settlement negotiations, to determine whether an additional action should be filed in Alaska state courts, and to use the Department of Labor settlement judge program described at 29 C.F.R. § 18.9(e).
The second ground is not well explained, either as to what has been modified about the unrelated Oregon trial or what investment of time has had to be changed. Perhaps a motion for summary judgment was denied, leaving more issues to be tried to a jury, perhaps an amendment to the complaint added issues. The motion papers fail to demonstrate that counsel had been surprised by what happened there. Counsel had at least four months notice of the September trial date in this proceeding (its second trial setting) so there has been ample notice of this trial.
Employer opposes the continuance request for several reasons. It denies any fault with respect to the discovery responses delivered to Complainant. It suggests that Complainant ought to have expected a voluminous response to the discovery demand he served four days after the discovery cut-off, which included 14 interrogatories and 59 requests for production of documents. Rather than object to the requests, Employer devoted a great deal of time and employee and management resources to respond to them in a timely manner. Whatever the nature of the difficulty presented by the Oregon trial, it was not raised at the August 26, 2003 prehearing conference. After that conference Employer made significant efforts to prepare for trial of the new allegations, making at least five managers available to assist counsel in trial preparation and to testify at trial. Granting a continuance now would substantially disrupt their schedules, and will require duplication of trial preparation efforts by those managers and Employer's counsel, increasing litigation costs and decreasing efficiency in preparation. It undertook this disruption of its business and incurred these costs to meet the demands of the September trial date which Complainant wanted to maintain. No settlement demand had been made by Complainant before he filed his motion to continue; Employer is fully occupied in trial preparation and not disposed to avail itself of the settlement judge program now. Employer did not oppose voluntary dismissal of the claims, and suggested no conditions to be attached to such a dismissal.
The Secretary's procedural regulations for handling discrimination complaints under federal employee protection statutes published at Part 24 of Title 29 of the Code of Federal Regulations addresses requests for postponements of trials in this way: "No requests for postponements [of trials] shall be granted except for compelling reasons or with the consent of all parties." 29 C.F.R. § 24.6(a). Employer agreed to the previous continuance request but opposes this one on reasonable grounds.
None of the grounds Complainant offered to support the continuance request rise to the level of "compelling reasons," better reasons than the "good cause" ordinarily required to obtain a continuance. Complainant had to expect that his recent discovery demands would generate a large volume of material shortly before trial, and ought to have made preparations to deal with it. Ten days before trial is not the time to "begin" settlement negotiations, when the opponent is working to be prepared to address newly added discrimination allegations about a failure to rehire, as well as those relating to the initial lay-off. Finally, the difficulty caused by the unrelated trial in Oregon is inadequately explained, especially when the question of whether to change the trial date was addressed recently, and Complainant raised no concern about its trial preparation. Employer then made substantial preparations to deal with both the old and the new discrimination allegations at the September trial; it would be unfair to render much of that work futile, without very good reasons to do so. None have been offered. The request for continuance is denied.
Complainant has made it clear he will not attend the trial in Anchorage, so there is no reason for Employer to continue trial preparation or to travel to Anchorage to convene a hearing Complainant will not attend. Complainant wisely made his position known before the trial was to convene, for failure to attend would have subjected all his claims to an adverse adjudication on the merits for failure to prosecute under Rule 41(b), F.R.Civ.P.
The remaining issue is whether to grant Complainant's request for voluntary dismissal. This voluntary dismissal is not part of a settlement. The Administrative Review Board has found that Rule 41, F.R.Civ.P. applies in these situations. Rainey v. Wayne State University, 90-ERA-40 (Sec'y Jan. 7, 1991) (order to show cause), slip op. at 3, dismissed, (Sec'y Feb. 27, 1991).
In determining whether to permit a dismissal under Rule 41(a)(2), F.R.Civ.P., the administrative law judge must determine:
1. whether to allow dismissal at all,
Nolder v. Raymond Kaiser Engineers, Inc., 84-ERA-5 (Sec'y June 28, 1985)
Rule 41(a)(2), F.R.Civ.P. generally permits dismissals without prejudice. A judge must consider whether the defendant will be legally prejudiced when deciding if the complaint should be dismissed at all, in addition to deciding whether a dismissal should be with or without prejudice. To avoid prejudice, the Rule permits the judge to attach conditions to the dismissal. According to the Secretary, legal harm or prejudice is not equivalent with the type of harm that may be ameliorated by attaching conditions to a dismissal without prejudice.
Even without any adverse ruling on the merits of the employment protection claims, taking a voluntary dismissal now will have the effect of a dismissal with prejudice, at least in this forum. Most of the federal employee protection statutes allow only brief periods in which an employee may complain to the Department of Labor, so an attempt to re-file the complaints with OSHA now would be out of time. Howe v. Affrex, Ltd. , 94-ERA-8 (Sec'y Dec. 12, 1994) at fn. 1. The exception is the recent discrimination complaint about the failure to re-hire Complainant as an inspector in 2003, which OSHA never investigated. The Pipeline Safety Improvement Act of 2002 sets a 180 day period in which to complain, which has not yet expired. See 29 U.S.C. § 60129(b)(1). In view of Complainant's decision not to go forward with the trial he requested, which Employer has prepared for diligently, this result is not unfair. In any case it follows as a matter of law from Complainant's choice to seek a voluntary dismissal. Howe, supra .
This result is not as harsh as it might be, for Complainant has indicated an intention to proceed under Alaska state laws similar to the federal employee protection statutes. If that is Complainant's choice, he may do so. Withdrawing claims from this Department to proceed in an available state forum has been approved in other statutory contexts. See, e.g ., the decision of the Department of Labor Benefits Review Board in Stevens v. Matson Terminals, Inc , 32 BRBS 198 (1998). That Board, acting of behalf of the Secretary, approved a claimant's withdrawal of a claim for benefits pending before her under the Longshore and Harbor Worker's Compensation Act, in order to prosecute the claim in a state forum instead.
There is no legal prejudice to Employer by permitting dismissal without prejudice. Employer's papers opposing the continuance did not oppose a voluntary dismissal under Rule 41(a)(2), F.R.Civ.P. Respondent's Opposition to Motion to Continue Hearing Date at p.5.
At least one condition ought to be attached to the dismissal. Complainant ought to be required to agree that any discovery done in this forum will apply to any re-filing he might make before the U. S. Department of Labor, or before any Alaska state tribunal or court.
Order It is ordered that the request for continuance of the trial set for September 22, 2003 in Anchorage, Alaska is denied, and
Recommendation It is recommended that the Administrative Review Board enter a final order permitting Complainant to voluntarily dismiss the complaints filed against Kakivik Asset Management, Inc., subject to the condition that any discovery done in this forum will apply to any re-filing before the U. S. Department of Labor, or in any proceeding filed under similar employee protection statutes before Alaska state agencies or courts.
William Dorsey
NOTICE : This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.7(d) and 24.8.
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