U.S. Department of Labor
Office of Administrative Law Judges
525 Vine Street, Suite 900
Cincinnati, Ohio 45202
DATE: April 24, 1990
CASE NO: 89-ERA-00042
IN THE MATTER OF
B. R. MCCRUMB
COMPLAINANT
v.
WESTINGHOUSE RADIOLOGICAL
SERVICES, INCORPORATED
and
VIRGINIA POWER
RESPONDENTS
RECOMMENDED ORDER OF
DISMISSAL
Following an adverse determination by the District Director,
Wage and Hour Division, Employment Standards Administration,
United States Department of Labor, the Complainant, on July 7,
1989, filed a request for a hearing. By letter dated July 10,
1989, he advised that he would need six months to prepare for
trial.
An ORDER was issued on August 18, 1989, scheduling a
pre-hearing telephonic conference with the Complainant and counsel
for both Respondents.
By letter dated August 21, 1989, the Complainant advised
that he would not be available for the conference as he would be
in route to his next job site. He requested a postponement until
he could get settled in a new residence and have telephone
service. He represented that he would be in contact after the
middle of September.
[Page 2]
The Complainant has failed to contact this office. By
letter dated February 1, 1990, addressed to Complainant's last
known address, he was requested to advise this office of his new
address and telephone number. He has failed to respond to that
request. The letter has not been returned by the U.S. Post
Office, and it is assumed it was forwarded to the Complainant at
his new address.
An ORDER was issued on March 2, 1989, and served by
Certified Mail, return receipt attached, advising the Complainant
that if he failed to furnish his new address and telephone number
by March 22, 1989, his request for hearing would be considered
abandoned. The return receipt was signed by a Joyce Kelley, as
agent.
A follow-up ORDER TO SHOW CAUSE was issued on March 29,
1990, ordering the Complainant to furnish his new address and
telephone number within 10 days or his claim would be considered
abandoned and would be dismissed on that basis and also on the
basis of his failure to comply with a lawful order of this
administrative law judge. The Order was served by Certified
Mail, with return receipt, to the Complainant's last known
address. The envelope was returned unopened by the Postal
Service stamped with the indication that it was unclaimed.
It is provided in 29 CFR § 18.39(b) that a request for
hearing may be dismissed upon its abandonment by the party who
filed it.
Further, it is provided in 29 CFR § 24.5(e)(4)(B) that an
administrative law judge, on his own motion, may dismiss a claim
upon the failure of the complainant to comply with a lawful order
of the administrative law judge.
It appears that the Complainant has chosen to place himself
beyond the reach of this Office by moving and refusing to advise
of his new mailing address or telephone number after two
requests, and also refusing to accept letter communication from
this Office. Under this circumstance I am helpless to proceed
with this case. Accordingly,
It is the Recommended ORDER, that this case be dismissed on
the ground of abandonment and the failure of the Complainant to
comply with my lawful Orders.