ARB CASE NO. 02-098
ALJ CASE NO. 01-STA-039
DATE: July 25, 2003
In the Matter of:
HERBERT DICKSON,
COMPLAINANT,
v.
BUTLER MOTOR TRANSIT/COACH USA,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearance:
For the Respondent:
Heather R. Boshak, Esq., Donia Farhoud, Esq., Stanley L. Goodman, Esq., Grotta, Glassman & Hoffman, P.A., Roseland, New Jersey
FINAL DECISION AND ORDER
Herbert Dickson filed a complaint alleging that the respondent, Butler Motor Transit/Coach USA (Butler), violated the Surface Transportation Assistance Act of 1982 (STAA), as amended and recodified, 49 U.S.C.A. § 31105 (West 1997), by retaliating against him for engaging in safety-related activity protected by the STAA. A Department of Labor (DOL) Administrative Law Judge (ALJ) issued a Recommended Order of Dismissal (R.O.) The Administrative Review Board (Board) adopts the ALJ's recommendation and dismisses the complaint.
BACKGROUND
Dickson filed two STAA complaints against Butler, which were investigated by the DOL's Occupational Safety and Health Administration (OSHA). By decisions issued on March 9 and April 23, 2001, OSHA found that each complaint lacked merit. On May 2, 2001, Dickson filed a request for a hearing before an ALJ.
On October 9, 2001, the ALJ issued a Notice of Hearing, advising the parties that the case would be heard beginning on December 18, 2001, and would continue if necessary through December 20. The notice also instructed the parties to provide pre-hearing statements regarding the issues to be adjudicated and the witnesses to be called. The notice further directed the parties to exchange the exhibits that each intended to submit into evidence at hearing and to provide the ALJ a list of such exhibits.
On October 24, 2001, Butler filed a motion for summary judgment, urging that Dickson had failed to timely appeal his first STAA complaint against Butler, which was decided by OSHA on March 9, 2001. Butler also argued that the relief sought in Dickson's second complaint, which was decided by OSHA on April 23, 2001, had been rendered moot by an award of unemployment benefits to Dickson by the state unemployment compensation review board. On November 13, 2001, Dickson filed a brief opposing Butler's motion, in which Dickson urged that issues of material fact regarding Dickson's receipt of the March 9, 2001 OSHA decision required that the case proceed to hearing. In addition, Dickson contended that his second complaint alleged "a pattern of continuing discrimination" and that an evidentiary hearing was required to decide issues of material fact related to that allegation.
Also on November 13, Butler filed an unopposed motion requesting the ALJ to vacate the scheduled hearing date of December 18, in view of Butler's then-pending motion for summary judgment. On November 20, the ALJ issued an Order Denying Motion for Summary Decision, in which he not only denied Butler's summary judgment motion but also ordered that the case proceed to hearing on the dates already scheduled.
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On December 7, 2001, Dickson requested a continuance of the December 18-20 hearing dates, citing concerns that the scheduled hearing would interfere with employment Dickson had recently begun. Butler did not oppose that request. On December 13, the ALJ issued an Order of Continuance postponing the hearing until a date to be set.
On February 7, 2002, Butler filed a Motion to Compel Discovery, urging that Dickson had failed to provide responses to Butler's First Set of Interrogatories and failed to reply to Respondent's First Request for Production of Documents, both of which were dated November 16, 2001. By Order Granting Motion [] to Compel Discovery issued March 26, the ALJ granted Butler's motion to compel and directed Dickson to provide responsive answers to the specified set of interrogatories and the request for production of documents no later than April 10, 2002.
1 Taylor stated in his motion that he preferred not to disclose the nature of the dispute with Dickson unless ordered to do so by the ALJ. The record does not indicate that the ALJ required further information concerning the disagreement to grant the withdrawal motion.
2 In a letter dated December 4, 2002, Butler advised the Board that the copy of its brief that was mailed to Dickson had been returned with a letter from the United States Postal Service. Butler provided a copy of the November 2002 Postal Service letter, which states that the Postal Service had communicated with Dickson and had ascertained that he was refusing "all delivery of mail."