U.S. Department of Labor Office of Administrative Law Judges
20th Street, N.W.
Washington, D.C. 20036
Date Issued: APR 2 1990
Case No. 90-ERA-15
In the matter of
STEVEN PATRICK CABLE,
Complainant,
vs.
ARIZONA PUBLIC SERVICE CO.,
Respondent.
ORDER
By Order dated February 21, 1990, I
dismissed this matter with prejudice because of the Complainant's
refusal to cooperate in setting his claim for a hearing, his
failure to appear for his deposition scheduled on January 26,
1990, and his apparent inability to proceed to a hearing due to
his unstable condition. On March 14, 1990, this Office received
the Complainant's Motion for Reconsideration of this dismissal
and Motion to Stay the proceedings for 90 days so the Complainant
can undergo medical treatment. The Complainant stated that if
reinstatement and the stay are granted, he will undergo treatment
and report back to this Office as to his status before the
expiration of the 90-day period.
The Complainant bases his motion on 29 C.F.R.
§24.5(e)(4), which states:
(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 claim, 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.
[Page 2]
Due to the exigencies of this case, including,
the Complainant's actions, I interpret the conditions of
§24.5(e)(4)(i)(A) and (B) to have been met. While I did not
issue a show cause order prior to dismissal, the Complainant's
equest for reinstatement of the complaint serves as an answer to
such an order. The Complainant's request has two valid aspects:
(1) he has retained counsel; and (2) he acknowledges
psychological problems and is seeking assistance. The record
provides ample examples of the Complainants erratic behavior to
justify the request for a 90-day stay of my Order in order for
him to undergo treatment. At this time, however, there is no
evidence that the Complainant is seeking professional
psychological help.
Further, I agree with the Respondent, in
its response to the Complainant's motion, that the Respondent's
counsel has been personnally harassed at its place of business.
Since the Complainant now has retained counsel in this matter,
there is no need for him to personally contact the Respondent's
attorneys or their employees. The Complainant has yet to
demonstrate that he is prepared to proceed to hearing.
ORDER
1. The Order of Dismissal is stayed for 90 days.
2. The Complainant shall, within 20 days of receipt of this
Order, provide documentary evidence that he is seeking
professional treatment in an effort to ready himself for hearing
3. The Complainant shall report back to this Office as to his
status before the expiration of the 90-day period.
4. The Complainant shall cease from directly contacting the
Respondent or its attorneys so long as he is represented by
counsel.
5. Failure to comply with this Order within 90 days will be
grounds for sending a recommendation of dismissal to the
Secretary.
