This newsletter covers materials that became available during the period from November 10, 1997 to December 3, 1997.

[N/E Digest VI E]
TIMELINESS OF REQUEST FOR HEARING BEFORE ALJ

In Fred v. The Wackenhut Corp., 96-ERA-8 (ARB Nov. 20, 1997), Wage and Hour had determined in 1992 that Complainant had not timely filed an ERA complaint (the alleged discrimination occurred in 1989; the only credible evidence was that Complainant first contacted DOL in 1992). Three years later, Complainant made an inquiry about the status of her complaint. Wage and Hour wrote back in early 1996, stating that in the event Complainant had overlooked the provisions regarding appealing the findings, she could appeal the 1992 letter by requesting a hearing with OALJ within five days of receipt of the 1996 letter. The ARB held that this information about the time period for requesting a hearing "was erroneous and had no basis in either law or regulation." The ARB held that Complainant "has no appeal rights from a letter responding to a status request regarding allegations made in 1993 [1992?], which were not timely with regard to the alleged discriminatory act in 1989." The ARB also found that the complaint itself was not timely filed.

[N/E Digest VII A 3]
DISCOVERY; PARTIES SHOULD MAKE GOOD FAITH ATTEMPT TO RESOLVE DISPUTES BEFORE ASKING FOR ALJ'S INTERVENTION

In Tracanna v. Arctic Slope Inspection Service, 97-WPC-1 (ARB Nov. 6, 1997), the ARB noted that the Federal Rules of Civil Procedure require parties to seek resolution of discovery disputes prior to filing a motion to compel discovery. See Fed. R. Civ. P. 37(a)(2)(A). DOL's rules of practice and procedure do not contain a similar requirement. See 29 C.F.R. § 18.21. Nonetheless, the ARB stated that "[a]s a practical matter, we encourage parties to make a good faith attempt to resolve discovery disputes without the intervention of an ALJ." Slip op. at 5 n.6.

[N/E Digest VIII A 6]
TIME PERIOD FOR RESPONSE TO MOTION

In Tracanna v. Arctic Slope Inspection Service, 97-WPC-1 (ARB Nov. 6, 1997), the ARB criticized the ALJ for waiting only one day following Respondent's motion for sanctions for Complainant's failure to comply with discovery requests to issue an order granting those sanctions. See 29 C.F.R. § 18.6(b).

[Editor's note: The ALJ had earlier issued an order directing Complainant to answer the discovery requests and to show cause why the requests for admissions should not be deemed admitted. When Complainant did not respond, the ALJ had issued an order deeming that Respondent's request for admissions to be admitted, but did not issue the sanctions order until after Respondent filed its motion for additional sanctions].

[N/E Digest XVI B 4]
FRONT PAY; DETERMINATION OF START DATE WHERE COMPLAINANT NEEDS THERAPY/EDUCATION TO RE-ENTER WORKFORCE

In Doyle v. Hydro Nuclear Services, 89-ERA-22 (ARB Nov. 26, 1997), the ARB sought to clarify when front pay begins when Complainant alleges that he was unable to obtain counseling and education necessary to reenter the job market because Respondent had not paid the compensatory damage award.

The ARB began by observing that in antidiscrimination cases, back pay usually ends and front pay begins at the close of trial or at the time of the court's judgment, although special circumstances may dictate a different time.

The ARB noted, for example, that it had recently held in Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997), that a back pay award ended and the front pay period began at the time the respondent made a bona fide offer of reinstatement. In Michaud, the ARB had found that the unlawful discharge caused the complainant's major depression, and therefore the complainant reasonably declined the offer of reinstatement, and the declination did not cut off entitlement to back or front pay. The complainant in Michaud had already undergone eight months of therapy at the time of the hearing, and the therapist opined that additional therapy was needed to rehabilitate the complainant for work. The ARB stated that since the therapy was already underway at the time of the hearing, it determined that a two year rehabilitation period began at the close of the hearing.

In Doyle, the ARB had found in its original decision on the merits that Complainant was entitled to five years of front pay based on evidence that it would take approximately that amount of time in therapy to make him employable. Complainant argued before the ARB that he had not yet begun the necessary therapy at the time of the hearing, but maintained that he had been prevented in this regard by poverty wrought by Respondent's discriminatory conduct.

The ARB held that to the extent that Respondent's failure to pay the monetary damages prevented Complainant from obtaining the necessary therapy and training, the front pay period would not be payable until the date the award was enforceable against Respondent. The ARB remanded for findings by the ALJ whether Complainant had engaged in any therapy, education or training, and if not, whether Complainant lacked the necessary funds.

If Complainant lacked the necessary funds, the back pay period would end, and the front pay period begin, upon issuance of a final, judicially reviewable ARB decision. If, however, the ALJ finds that Complainant has begun to obtain therapy and education/training, or that Complainant had the financial means to do so but did not, the back pay period ended and the front pay period began upon the issuance of the ARB's earlier decision on the merits.

[N/E Digest XVIII B 1]
VOLUNTARY DISMISSAL; USE OF FED. R. CIV. P. 41(a)(2)

In Cartwright v. Lockheed Martin Utility Services, Inc., 97-ERA-41 (ARB Oct. 31, 1997), the ARB accepted the ALJ's recommended order of dismissal pursuant to Fed. R. Civ. P. 41(a)(2). The ALJ had recommended dismissal under Rule 41(a)(2) because in a prehearing telephone conference call Complainant had acknowledged that his complaint did not relate to a potential environmental safety violation, but rather involved a fire safety concern for which Complainant had filed a complaint with OSHA. Following the conference call, the parties submitted a joint motion to dismiss. Cartwright v. Lockheed Martin Utility Services, Inc., 97-ERA-41 (ALJ Oct 22, 1997). The ALJ found that the dismissal was voluntary, in the best interests of the parties, and that there was no information indicating that a settlement was involved. Id.

To the same effect: Seetharaman v. Massachusetts Water Resources Authority, 97-CAA-17 (ARB Nov. 18, 1997).

[N/E Digest XVIII C 6]
DISMISSAL FOR CAUSE; COMPLAINANT'S CONDUCT

In Tracanna v. Arctic Slope Inspection Service, 97-WPC-1 (ARB Nov. 6, 1997), the ARB rejected the ALJ's Recommended Order of Dismissal, in which the ALJ had found that Complainant had demonstrated a pattern of refusing to cooperate in the discovery process.

In Tracanna, Complainant, who was proceeding pro se, did not timely respond to Respondent's initial discovery and admissions requests, or seek additional time to respond. Upon Respondent's motion, the ALJ issued an order directing Complainant to answer the discovery requests and to show cause why the requests for admissions should not be deemed admitted. Complainant did not respond to the ALJ's order, although he was actively pursuing other aspects of his case, such as filing a FOIA request with DOL, submitting his own discovery requests, and participating in settlement negotiations. The ALJ issued an order finding that Respondent's requests for admissions were deemed admitted. Respondent then moved for additional sanctions for Complainant's failure to respond to the discovery requests. The ALJ granted the motion the following day, ordering that the evidence requested in Respondent's interrogatories was deemed adverse to Complainant, and barring Complainant from relying on testimony of any witness not identified in the discovery responses, including expert witnesses, and from introducing documents or other evidence he failed to produce. The ALJ also ordered that Complainant could not object to the introduction and use of secondary evidence to show what the withheld admissions, testimony, documents or other evidence may have shown.

Complainant thereafter wrote to the ALJ explaining that he had difficulty finding an attorney, and had not received any advice when he asked the ALJ's office for help. He stated that the sanctions appeared to eliminate his case, and asked whether an appeal was possible. The ALJ treated the letter as a motion for reconsideration of the sanctions order, and denied it.

Next, since Complainant was unavailable on the date noticed for his deposition, he had arranged a later date with Respondent. The day of the rescheduled deposition, Complainant called Respondent's counsel to state that he would not make himself available for the deposition. Respondent moved to dismiss, and the ALJ issued an order to show cause. Complainant submitted a response apologizing for not responding quickly enough to orders and discovery requests and explaining that he viewed the order for sanctions as superseding the merits of his case. The ALJ then issued his recommended order of dismissal based on the factors stated in Malpass v. General Electric Co., 85-ERA-38 (Sec'y Mar. 1, 1994), for determining whether dismissal is warranted based on misconduct:

(1) Complainant's degree of personal responsibility;

(2) the amount of prejudice to the Respondent;

(3) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and

(4) the effectiveness of sanctions less drastic than dismissal.

The ARB agreed with the use of the Malpass factors, but found that dismissal was inappropriate. The ARB cited the following factors:

·  Complainant had not exhibited a drawn out history of deliberately proceeding in a dilatory fashion (the ARB noting that Complainant timely responded to several of the ALJ's show cause orders, albeit not the order regarding sanctions for failure to answer discovery);

·  Complainant was proceeding pro se, and although he did not request additional time to respond to discovery, such requests are routinely granted;

·  Respondent had not established a good faith attempt to resolve discovery disputes informally before resorting to the intervention of the ALJ;

·  Complainant did not simply fail to appear for his scheduled deposition; rather he called Respondent's counsel and explained that in view of the ALJ's sanctions order he no longer had a case and that the deposition would be a waste of everyone's time;

·  the ALJ's sanctions order did effectively prevent Complainant from presenting any case whatsoever;

·  Complainant's difficulty finding an attorney;

·  Complainant's active participation and seeking of information needed to prove his case (i.e., his FOIA request, submission of discovery requests, and participation in settlement negotiations);

·  lack of prejudice to Respondent in permitting the case to proceed;

·  that the ALJ's conclusion that sanctions less severe than dismissal had been ineffective was faulty insofar as the ALJ's earlier sanctions were so effective that they had rendered Complainant's further participation useless;

·  that the ARB was confident that Complainant "now understands the severity of potential consequences for not complying with discovery requests and orders";

·  the ALJ could consider Complainant's past actions in regard to any renewed motion to dismiss in response to future missed deadlines;

·  that "[o]nly six weeks elapsed between the time [Complainant] first missed a discovery deadline . . . to the time that his case was eviscerated ..." and that during that time he had actively pursued other aspects of his case.

The ARB vacated the ALJ's order deeming that the request for admissions to be admitted and the order imposing sanctions for failure to comply with discovery requests.