Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202
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Issue date: 04Oct2002
Case No: 2002-STA-38
In the Matter of,
SELWYN T. LANE,
Complainant,
v.
ROADWAY EXPRESS INC.,
Respondent
RECOMMENDED DECISION AND ORDER GRANTING MOTION TO DISMISS AND DENYING COMPLAINANT'S REQUEST FOR ATTORNEY'S FEES
The above-captioned matter arises under the Surface Transportation Assistance Act of 1982, as amended, 49 U.S.C. § 31105 and the Regulations found at 29 C.F.R. Part 1978. On July 10, 2002, a Pre-Hearing Order was issued by the undersigned. Both parties timely responded to the Pre-Hearing Order. Roadway Express filed a motion to dismiss Complainant's objection to the Secretary's findings and order, and a motion to stay discovery on August 20, 2002. Mr. Lane submitted Complainant's memorandum of law in opposition to Respondent's motion to dismiss, the affidavit of Selwyn T. Lane, and the affidavit of Paul O. Taylor on August 30, 2002. Roadway Express followed by submitting a reply in support of its motion to dismiss Complainant's objection on September 10, 2002.
Mr. Lane is employed by Roadway Express as a truck driver. He was issued a warning letter on January 20, 2000, for delay of freight occurring on January 9 and 10, 2000. Mr. Lane filed a complaint with the United States Department of Labor, alleging that Roadway Express had unlawfully discriminated against him for refusing to drive in bad weather. Subsequently, on or about May 23, 2000, Roadway Express withdrew the disciplinary notice. The Department of Labor issued the Secretary's Findings on June 7, 2002. The Secretary determined that the complaint has no merit and dismissed the case. The Secretary, noting that Mr. Lane had requested payment of attorney's fees, deemed such an award not reasonable and declined to award attorney's fees.
1Pursuant to 6 Cir.R. 28, the undersigned believes that this unpublished decision holds significant precedential value relative to the material issues involved.
2"The question of whether a complainant can recover costs and attorney's fees under 49 U.S.C. § 31105(a)(3)(B) is, however, not governed by the prevailing-party doctrine . . . . That doctrine is derived from a different statutory provision, 42 U.S.C. § 1988. The Surface Transportation Assistance Act , in contrast, permits the assessment of fees and costs ‘against the person against whom the order is issued'. 49 U.S.C. § 31105(a)(3)(B). " See Roadway Express, Inc. v. Administrative Review Board, U.S. Dep't of Labor, 6 Fed. Appx. at 6. Therefore, there is no need to determine whether Mr. Lane would qualify as a prevailing-party.