Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111
Veterans Memorial Blvd Metairie, LA 70005
(504) 589-6201 (504) 589-6268
(FAX)
Issue Date: 21 November 2002
CASE NO.: 2002-ERA-00015
IN THE MATTER OF
TERRY O. PUCKETT,
Complainant
v.
TENNESSEE VALLEY AUTHORITY,
Respondent
APPEARANCES:
EDWARD A. SLAVIN, JR., ESQ.
On behalf of the Complainant
DILLIS D. FREEMAN, JR., ESQ. On behalf of the Respondent
Before: LARRY W. PRICE Administrative Law Judge
RECOMMENDED DECISION AND ORDER OF DISMISSAL FOR FAILURE TO COMPLY WITH LAWFUL ORDERS
In a complaint filed with the Occupational Safety and Health Administration (OSHA) on December 18, 2001, Terry O. Puckett (Complainant) alleged that Tennessee Valley Authority (Respondent) retaliated against him because of his protected activities under the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1994) and the regulations at 29 C.F.R. Part 24 (2001); the Clean Air Act (CAA), 42 U.S.C. § 762; the OSHA Act, 29 U.S.C. § 651; the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901; the Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971; the Water Pollution Control Act (FWPCA), 33 U.S.C. § 1367; and the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2622. On February 14, 2002, OSHA dismissed the complaint, finding that it was unable to verify that discrimination was a factor in the actions that gave rise to Puckett's claims, and in addition, that Puckett failed to timely file his complaint. On February 22, 2002, Puckett appealed that decision.
[Page 2]
The Court recommends the case be dismissed for Puckett's failure to comply with the Court's lawful orders. A review of the background of the case is necessary to put this recommendation into perspective.
By Order dated March 5, 2002, the Court set the matter for hearing on April 16, 2002. The Court ordered that all discovery be concluded ten days prior to the hearing. The Court advised the Parties that absent prior explicit permission, filings by facsimile (fax) would not be accepted.
On March 11, 2002, TVA requested a delay in the hearing. On March 12, 2002, TVA advised the Court that one of the reasons for the requested continuance had been resolved. On March 13, 2002, my office contacted Puckett's counsel (Counsel) and requested his position on the requested delay. Counsel filed a letter on March 13, 2002, but did not then or later indicate his position concerning the continuance. As 29 C.F.R. § 24.6(a) provides that no postponements shall be granted except for compelling reasons or with the consent of all parties, and having received no response from Counsel, on March 26, 2002, the Court denied TVA's Motion for Continuance.
On March 22, 2002, TVA filed a Motion for Summary Decision.
On March 26, 2002, Counsel faxed to the Court a Motion to Quash Notice of Deposition and a Motion for Protective Order as to TVA's Request for Production of Documents. Counsel advised that he would be unable to attend Puckett's deposition that was scheduled for March 28, 2002. By fax dated March 27, 2002, Counsel advised the Court that he acquiesced in TVA's Motion for Continuance. By Order dated March 28, 2002, the Court again denied TVA's Motion for Continuance and set April 9, 2002, as the date for filing a response to the Motion for Summary Decision. This Order was faxed to Counsel along with a note that on March 27 and March 28, the Court had attempted to contact him regarding his request for a conference call but got a message that his voice mail was full.
On April 1, 2002, Puckett requested, via fax, a continuance in the hearing, the date for depositions and the date for responding to the Motion for Summary Decision. A telephone conference call was held at the request of Counsel on April 1, 2002. Based upon the agreement of the Parties, the Court rescheduled the hearing for June 4, 2002. The Parties agreed that Puckett's deposition would take place the week of April 22, 2002, and that Puckett would respond to TVA's discovery requests (served on March 20, 2002) the week prior to the deposition. The Court was advised that Puckett might submit his own discovery request. May 17, 2002, was set for Puckett's reply to the Motion for Summary Decision. In its Order, the Court again advised the Parties that absent prior explicit permission, filings by facsimile (fax) would not be accepted.
Puckett's deposition was noticed for April 23, 2002. In spite of the fact that Counsel had agreed to Puckett's deposition during the week of April 22, 2002, by letter dated April 15, 2002, Counsel moved for a protective order as the deposition might take up too much of his time and the notice lacked sufficient notice of the topics and the name of the court reporter. Counsel further requested the Court be available for discovery conference calls during Puckett's deposition and other depositions that he might decide to take. By letter dated April 16, 2002, Puckett filed a Motion for Simultaneous Exchange of Discovery Responses. By a second letter dated April 16, 2002, Puckett restated these same requests. All these letters were received by fax.
[Page 3]
On April 17, 2002, the Court received TVA's Response to Puckett's Motion for Protective Order. TVA noted that it first served the deposition notice and request for production on March 20, 2002. TVA states that the topic of the deposition would be the basis of Puckett's allegations in the Complaint and identified the court reporting company that would be taking the deposition. In a separate motion, TVA moved to compel responses to its March 20, 2002 discovery request. TVA also responded to the request for simultaneous exchange of discovery responses. TVA noted that Puckett's discovery request was not served until April 7, 2002. The Court notes that Puckett's discovery request itself did not seek production until May 7, 2002. Attached to TVA's Response were Notices of Deposition for Puckett. The depositions were previously set for March 28 and April 4, 2002, with requests that documents be provided prior to the depositions.
On April 17, 2002, the Court denied the Motion for Protective Order and the request to reschedule Puckett's deposition. The Court further ordered Puckett to provide all documents responsive to TVA's request for production of documents no later than 1:00 p.m. on April 19, 2002. The Court faxed this Order to Counsel and TVA.
That same afternoon Counsel faxed a motion for an on the record conference call on the morning of April 18, 2002. Puckett suggested "that the Court be prepared to address":
1. The Court's legal and factual reasons for:
A. Declining to order remand for investigation;
B. Not granting Puckett's discovery motions or addressing their merits;
C. Not ordering simultaneous exchange and production of discovery;
2. The federal constitutional requirement for a neutral decision maker;
3. DOL's historic desuetude of whistleblower law enforcement in states under suzerainty of the Atlanta and Dallas OSHA offices, including OSHA's apparent unlawful refusal to investigate Puckett's case; and
4. Whether the Court has been prejudiced against or for any party of any counsel.
That same afternoon Counsel faxed a letter renewing the motions he had made in his April 15, 2002 letter and which were denied in the Court's April 17, 2002 Order.
Further, on April 18, 2002, Counsel sent a letter to District Chief Judge Mills seeking his views on the foregoing matters and my rulings. Counsel noted that he was not requesting "formal peer review at this time." A copy of this letter was faxed to the Court.
[Page 4]
On April 18, 2002, the Court denied the request for an on the record conference call and the request for simultaneous exchange of discovery. The Court did shorten the time for TVA's response to discovery to April 30, 2002. The Parties were advised that the Court's Orders dated April 2, 2002, and April 17, 2002, set specific dates for the accomplishment of certain tasks and the Court expected these tasks to be accomplished as ordered. The Court faxed the Order to the Parties.
Within minutes of the Court's Order being faxed, the Court received by fax Puckett's five page Emergency Motion requesting "that the Court vacate the April 17, 2002 Order in this matter and modify the schedule agreed to by the parties." Counsel also requested a conference call.
Waiting for me on my arrival at the office on April 19, 2002, was a two page Supplement to the Motion that had been faxed the previous evening. Despite the fact that the Court had advised the Parties that absent prior explicit permission, filings by facsimile (fax) would not be accepted, every ruling by the Court was followed by a flurry of unauthorized faxes from Counsel. As requested by Counsel, the Court held a conference call on April 19, 2002.
The May 24, 2002 affidavit submitted by Linda J. Sales-Long to the Administrative Review Board is an accurate summary of the conference call. The Court began by stating that the Parties had agreed to the deadlines set in my previous orders and that I thought my previous orders were clear. Counsel then accused me of not reading his submissions. For the first time, Counsel indicated that he had two briefs due the following week. I stated I had read all his submissions and had found nothing to support his various motions and there was nothing in any of his submissions about a schedule conflict. Counsel then began to ask questions concerning my military background. I told Counsel that the purpose of the conference call was not to interrogate me but to give him the opportunity to present any matters that might be relevant to the motions. I then inquired about the pending briefs and Counsel responded that he would not be interrogated and refused to answer my inquiries. I then informed Counsel that my previous orders were clear and I expected compliance. His response was, "We'll see about that."
At no time during the conference call did I raise my voice, become abusive or snap my fingers as alleged by Counsel in his various correspondence to Judge Mills, Judge Vittone and the ARB.1
2 It is not only the Court that has been the object of Counsel uncivil remarks. During a telephone conversation with TVA counsel following Puckett's aborted deposition, Counsel allegedly called TVA's counsel uncharitable, unchristian like, dishonest and unethical. Counsel has compared TVA to a serial murderer who is still at loose in the community and still commits murders.