Love v. Lockheed Martin Energy Systems, Inc., 1997-CAA-8 (ALJ Aug. 3, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 603 Pilot House Drive, Suite 300 Newport News, Virginia 23606-1904 (757) 873-3099 (757) 873-3634 (FAX)

DATE: August 3, 2000

CASE NO.: 1997-CAA-0008

In the Matter of:

DIANA LOVE,
    Complainant,

    v.

LOCKHEED MARTIN ENERGY SYSTEMS, INC.,
    Respondent.

   This case arises under the Clean Air Act, 42 U.S.C. 7622, and its implementing regulations found at 29 C.F.R. Part 24. These provisions protect whistleblowers from retaliation by their employers for engaging in protected activity.

   This case was assigned to this Administrative Law Judge in March 1997. Since that time there has been extensive discovery and several scheduled hearings were postponed.

   In a conference call held on February 28, 2000, the parties agreed to a hearing in Knoxville, Tennessee on July 11, 2000.

   At the appointed time and place respondent's counsel and the Administrative Law Judge were present. The complainant did not appear and has not explained her absence.

   An order to show cause was issued on July 17, 2000 and this order required the Complainant to respond on or before July 31, 2000.

   The Employer filed a motion for summary decision in May 2000.

   On June 2, 2000, the undersigned Administrative Law Judge issued pre-trial Order No. 9 which directed the Complainant to file a response to the motion on or before June 16, 2000.

   The pro se Complainant did not respond. However, in pre-trial Order No. 10 issued on June 19, 2000 the undersigned stated

as the trial date is less than one month away it is appropriate to defer further action on the motion.

   The undersigned declines to rule on the motion for summary decision in light of the following action

   29 CFR §24.5 states as follows

(4) Dismissal for cause. (i) The administrative law judge may, at the request of any party, or on his or her own motion, dismiss a claim

(A) Upon the failure of the complainant or his or her representative to attend a hearing without good cause;

(B) Upon the failure of the complainant to comply with a lawful order of the administrative law judge.

(ii) In any case where a dismissal of a claims, defense, or party is sought, the administrative law judge shall issue an order to show cause why the dismissal should not be granted and afford all parties a reasonable time to respond to such order. After the time for response has expired, the administrative law judge shall take such action as is appropriate to rule on the dismissal, which may include an order dismissing the claim, defense or party.

   29 CFR §24.5(4)(A) and (B) clearly are applicable in this case. There has not been a response to the order to show cause that was issued in mid-July 2000. In fact, the Complainant has not communicated with the Respondent or this office since the conference call in February 2000.

   Accordingly, it is my recommended decision that the complaint be DISMISSED.

      RICHARD K. MALAMPHY
      Administrative Law Judge

RKM/ccb
Newport News, Virginia

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, U. S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review is timely filed with the Administrative Review Board within ten (10) 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. §§24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).