DATE: July 13, 1995
CASE NO. 91-CLA-76
MARIA ECHAVESTE
ADMINISTRATOR,
WAGE AND HOUR DIVISION,
U.S. DEPARTMENT OF LABOR,[1]
PLAINTIFF,
v.
VINTON D. ERICKSON FARMS,
DEFENDANT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case is before me for final review pursuant to the
child labor provision (Section 12) of the Fair Labor Standards
Act of 1938, as amended (FLSA), 29 U.S.C. § 212 (1988) and
the implementing regulations, 29 C.F.R. Part 580 (1994). On
September 11, 1992, the Administrative Law Judge (ALJ) issued a
Decision and Order Dismissing Defendant's Exceptions To
Determination Of Violation and Assessment Of Civil Money Penalty
(D. and O.), wherein judgment was declared against Defendant by
default because of continued refusal to comply with discovery
orders. Defendant had been ordered to surrender documents
requested by the Wage and Hour Administrator (Administrator) that
the ALJ found to be "relevant to jurisdiction over Defendant's
operation as an 'enterprise' within the meaning of Section 203 of
the Act." D. and O. at 2. The ALJ held that Defendant's refusal
to comply with the February 25, 1992 order compelling discovery
was, ". . . not inadvertent or due to inability to comply."
Id. The ALJ's D. and O. is affirmed, as set out below.
BACKGROUND
Pursuant to Sections 211(c), 213(c)(1) and 216(e), of the
FLSA and Sections 516.2, 570.123 and 579.5 of the regulations,
the Administrator assessed civil money penalties (cmp's) against
[PAGE 2]
this Defendant for asserted violations of the Act's child labor
provisions.[2] On April 26, 1991, Defendant timely excepted to
the assessment of the cmp's. In January of 1992 the
Administrator filed Interrogatories and a Request for the
Production of Documents. Defendant resisted responding to the
discovery request.[3] The ALJ, on February 25, 1992, issued an
Order Compelling Discovery. On April 20, 1992, the ALJ issued an
order denying what had been treated as a motion by Defendant to
reconsider the previous order compelling a response. The crux of
the problem during this entire period was aptly summarized by the
ALJ in noting that "Defendant's statement(s) [were neither]
responsive to the discovery in question [nor did they] comply
with the Order compelling discovery of February 25, 1992."
D. and O. at 2.
DISCUSSION
Under the circumstances set forth above, the ALJ's decision
to sanction the Defendant pursuant to the provisions of Rule
37(b) of the Federal Rules of Civil Procedure was a reasonable
and proper exercise of judicial discretion. Since the remedies
for failure to comply with an order to compel are not expressly
stated in the Rules of Practice and Procedure for Administrative
Hearings, the ALJ was correct in ruling pursuant to the
provisions of FRCP Rule 37(b)(2), which expressly establishes the
appropriateness of sanctions against parties who fail to obey an
order to provide discovery. 29 C.F.R. § 18.6.
The Plaintiff sought, and was awarded, a series of sanctions
pursuant to the rules, including the right to have Defendant's
evidence limited in any subsequent hearing. The overriding
purpose of the sanction scheme set forth in Rule 37 is to allow
the presiding judge to fashion sanctions which are
appropriate for the offense being sanctioned. In that
regard, since there will be no hearing in this matter, it was not
necessary for the ALJ to enter an order mandating evidentiary
limitations. The only real question is whether the ultimate
sanction of dismissal is appropriate based upon the Defendant's
refusal to comply with the ALJ's discovery orders. Given the
Defendant's repeated and intentional failure to comply with
discovery mandates, I find that an order of dismissal is
appropriate.
Accordingly, IT IS ORDERED that Defendant's exceptions to
the determination of a violation and assessment of a civil money
penalty dated July 26 1990, be and hereby are dismissed.
IT IS FURTHER ORDERED that Defendant pay a civil money
penalty in the amount of $2,450.00 to the United States
Department of Labor.
SO ORDERED
______________________
Secretary of Labor
[PAGE 3]
Washington, DC.
[ENDNOTES]
[1] This case has not been consistently captioned throughout
these proceedings. Since the position of Wage and Hour
Administrator has been filled during the pendancy of this matter,
the case is recaptioned to reflect the current parties.
[2] The asserted violations involved Defendant's employment of
a minor during hours when school was in session, the failure to
keep records required under the Act, and the failure to assure
future compliance with the Act's provisions.
[3] The primary point of dispute between the parties concerned
the Administrator's attempt to establish coverage, i.e. FLSA
jurisdiction, over the Defendant's business operation. The
pro se Defendant's responses were typically composed,
however, in the form of letters of protest. Defendant asserted,
in essence, that the government's information requests were an
unusually burdensome intrusion into their business affairs and
came at a time when Defendant was involved in the busiest part of
the agricultural year. As a result, the responses were not truly
responsive; rather they were more in the nature of complaints to
the ALJ regarding governmental methodology, as well as questions
regarding the government's right to have the information sought.
