Section 24.5(e)(4)(ii) provides for dismissal but there it
stops, without giving any guidance on the standards to be applied in
scrutinizing requests for dismissals. 29 C.F.R. Part 18 is
similarly silent, as is already noted in footnote 3. Without a rule of
special or general application governing this situation 29 C.F.R.
§18.1(a) commands that reference be made to the Federal Rules of
Civil Procedure.
Rule 41(a) of the Federal Rules of Civil Procedure governs
voluntary dismissals. Complainant argues that since Respondent has
not filed an answer or motion for summary judgment Complainant is
entitled to automatic dismissal without order of court under Rule
41(a)(1)(i). I reject this argument. Here, Respondent filed the
equivalent of an answer when it elected to contest the Wage and Hour
[Page 5]
Division's findings by requesting a hearing in this office.
Complainant correctly cites Thorp v. Scarne , (9th Cir. 1979) 599 F.2d
1169, for the proposition that the terms "answer" and "motion for
summary judgment" as they appear in Rule 41(a)(1)(i) are to be
strictly construed, but Thorp has little significance here. The
defendant in Thorp could have answered or moved for summary judgment
at any time, but choose not to. That choice allowed the plaintiff to
dismiss the complaint at will, without court order. Here, Respondent
never had a conventional civil law answer or a motion for summary
judgment at its disposal. Since a rule of special application
[29 C.F.R.§§24.3(d)(3)(i) and (ii)) covers the instant situation,
Respondent is limited to filing a request for hearing in this office
if it wishes to contest a complaint that has survived scrutiny by
the Wage and Hour Division. Respondent did so file, an act which I
find constitutes the equivalent of an answer under Rule 41(a)(1)(i)
That act rendered Rule 41(a)(1)(i) inapplicable here. Consequently:
Complainant may have her dismissal "... only with consent of the
court and on such conditions as are just." (Wright & Miller,
Federal Practice and Procedure , Vol. 9, section 2362, at p. 149.)
Rule 41(a)(2) controls dismissal after an answer has been
made. As noted in Spencer v. Moore Business Forms , (1980) 87
F.R.D. 118, a court's discretion under Rule 41(a)(2) is limited to
making three determinations. First, it must decide whether to allow
dismissal at all. If it allows dismissal, the court should next
decide if dismissal should be with or without prejudice. Third, if
dismissal without prejudice is allowed, the court must determine if
any terms and conditions should be imposed. Guiding these
determinations is the rule that dismissal without prejudice should be
granted unless the defendant will suffer some legal harm, described
variously:
"'manifestly prejudicial to the defendant,' Southern
Maryland Agricultural Association of Prince George's
County v. United States , 16 F.R.D. 100, 101 (D. Md.
1954); 'substantial legal prejudice' to defendant'
Kennedy v. State Farm Mutual Automobile Insurance
Company , 46 F.R.D. 12, of (E.D. Ark. 1969); and the loss of
any 'substantial right,' Durham v. Florida East Coast
Railway Company, supra , 385 F.2d at 368."
Spencer, supra , at pp. 119-120; see also Hamilton v. Firestone Tire
& Rubber Co. , (9th Cir. 1982) 679 F.2d 143. The Complainant's
[Page 6]
desire to proceed with her parallel state court action is of no
concern in this determination. (Spencer supra , at p. 119, citing Home
Owners Loan Corporation v. Hoffman , (8th Cir 1943) 134 F.2d 314,
317-318). No reason has been advanced against permitting dismissal
and upon reflection none appears. It remains to be determined
whether mere dismissal, dismissal with prejudice or dismissal upon
condition is the most appropriate.
Respondent argues that a dismissal without prejudice will harm
it in the following ways. First, Kaiser would suffer delay in
vindicating its position at the earliest possible occasion. Second,
such dismissal will sanction forum-shopping, permitting Complainant
to proceed in a forum that possesses less expertise than this office
has in hearing claims of retaliatory employment termination involving
nuclear regulatory matters. Third, dismissal without prejudice
would leave standing the adverse finding of the Wage and Hour
Division which could be used by Complainant in the parallel proceeding.
In making its first and second contentions Respondent relies on/
Spencer v. Moore Business Forms, Inc., supra . As far as delay is
concerned, Respondent has not faced delay of the magnitude the
Spencer court or other courts, whose opinions it cites at pp.
120-124, found significant enough to impose hardship on defendants. For
example, in Spencer the case had been pending for four years. (At
p. 120.) Respondent concedes that the instant claim has been
pending only since March of 1983. Delay alone, however, was not the
compelling factor in Spencer . There, discovery had been completed;
the case was ready to proceed to trial; and, all parties had
expended a great deal of time, money and energy in preparation. (At
p. 122.) The instant case is far from being that ready for
hearing. Also, in Spencer the court had already granted summary
judgment to one defendant and partial summary judgment to the others,
facts which heightened the unfairness of plaintiff's " ... attempt to
wipe the slate clean and start over after having suffered legal
reverses ...". (Id .) Having prevailed in the Wage and Hour
Division, Complainant is in a position opposite to that of the
plaintiff Spencer.
Respondent's misplaced reliance on Spencer notwithstanding,
the
time limits contained in Section 5851 an its implementing regulations
suggest that prompt resolution of employee complaints is an
important goal of the law. A complaint must be filed within thirty
days after the alleged violation. [42 U.S.C. §5851(b)(1), 29
[Page 7]
C.F.R. §24.3(b).] Within thirty days of the receipt of a complaint
the Administrator of the Wage and Hour Division must complete an
investigation to determine whether the alleged violation has
occurred and must inform the parties of its results in writing. [42
U.S.C. §5851(b)(2)(A); 29 C.F.R. §24.4(d)(1).] The party
aggrieved by the findings has only five days to contest them by filing
a notice of hearing. [29 C.F.R. §24.4(d)(3)(1).] Twenty days
after the hearing the administrative law judge must issue his
recommended decision and order, which becomes final ninety days after the
date the complaint was originally filed. [42 U.S.C. §5851(2)(A),
29 C.F.R. §24.6(a) & (b).] The Secretary of Labor recognized the
need for swift resolution of employee discrimination complaints in
proclaiming at 29 C.F.R. §24.1(b) that the 29 C.F.R. Part 24
procedures were established "... for the expeditious handling ..." of
employee complaints.
Delaying resolution of the complaint would harm Respondent in
ways other than mere passage of time. While the complaint is pending,
Respondent is at risk for an ever increasing amount of back pay
that may be found due and owing to Complainant. Prompt resolution,
even if adverse to Respondent would reinstate Complainant to her
former position where she could earn her pay. Finally, delay will
hamper the gathering of evidence necessary for the defense as
witnesses memories fade and documentary evidence is lost or misplaced.
Although Respondent's reliance on Spencer is misplaced, I
conclude that the statute and regulations evince an intent that Section
5851 complaints be resolved quickly. A mere dismissal will
frustrate that goal, harming Respondent by obliging it to await
resolution at some future date while its liability increases and necessary
evidence becomes stale or althogether unavailable. The only way to
protect Respondent from such harm is by dismissing this complaint
with prejudice. As noted in Wainwright Securities, Inc. v. Wall
St. Transcript , (1978) 80 F.R.D. 103:
"'A dismissal of an action with prejudice is a complete
adjudication of the issues presented by the pleadings
and bars further action between the parties.' Glick v.
Ballentine Produce, Inc. , 397 F.2d 590, 593 (8th Cir.
1968); accord, Smoot v. Fox , 340 F.2d 301, 303 (6th
Cir. 1964); Slotkin v. Brookdale Hospital Center , 377
F.Supp. 275, 277 (S.D.N.Y. 1974); Hudson Engineering
Co. v. Bingham Pump Co. , 298 F.Supp. 387, 389 (S.D.N.Y.
1969); see Lawlor v. National Screen Service Corp. , 349
U.S. 322, 327, 75 S.Ct. 865, 99 L.Ed. 1122 (1955)."
[Page 8]
In this case dismissal with prejudice will bar Complainant from
again bringing any action based on the specific violations of 42
U.S.C. §5851 and its implementing regulations alleged in the March
15, 1983 complaint in this forum or in any other. I conclude
dismissal with prejudice is appropriate.
Respondent's second contention also has force, but again, its
reliance on Spencer is misplaced. The forum-shopping the Spencer
court disapprove of is described at p. 123:
"A plaintiff will sometimes have a choice between suing
in federal court and suing in state court. Plaintiff in
this case sued defendants in both courts. Unhappy with
rulings of law in this Court, plaintiff now seeks to
dismiss without prejudice and hope for better in the
state court; this, after over four years of litigation
and with the case very nearly ready for trial. This
type of forum shopping also has no sanction. It is
wasteful to prosecute two cases in two courts on the
same or similar causes of action; it is wholly unfair to
defendants to attempt to dismiss without prejudice the
one in which plaintiff has suffered setbacks and proceed
with the other."
As already noted, Complainant, instead of suffering any setbacks in
this forum has prevailed up to this point. If she wishes to now
proceed in a forum where the slate is clean, Respondent cannot be
said to suffer harm thereby.
The other thrust of Respondent's forum-shopping argument,
however, is that dismissal without prejudice will permit Complainant to
bring her 42 U.S.C. §5851 claim in the state court, a forum with
less congressionally-recognized expertise in adjudicating such
claims than the Department of Labor. This part of the argument is
persuasive. The decision to place responsibility for adjudicating
Section 5851 claims with the Department of Labor, coupled with the
several other employee protection statutes the Department is charged
with enforcing and adjudicating [e.g., Safe Drinking Water Act, 42
U.S.C. §300j-a(i); Water Pollution Control Act, 33 U.S.C. §1367;
Toxic Substances Control Act, 15 U.S.C. §2622; Solid Waste Disposal
Act; 42 U.S.C. §6971; and, Clean Air Act, 42 U.S.C. §7622] do
evince congressional recognition that this Department possesses
expertise in hearing retaliatory firing claims that arise under the
[Page 9]
enumerated statutes. The Secretary of Labor recognized this and
responded to the various charges of authority by promulgating 29
C.F.R. Part 24 because he "... determined that uniform procedures
are required for the orderly resolution of the complaints now being
filed with the Secretary pursuant to these several statutory
provisions." (See : "Supplementary Information" at Federal Register
Vol. 45, No. 5, p. 1836, January 8, 1980.)
I conclude that Respondent would suffer prejudice by being
forced to defend Complainant's action based on the specific alleged
violations of 42 U.S.C. §5851 in another forum that lacks the
congressionally-recognized expertise that the Department of Labor
posseses. The only way to protect Respondent from such harm is by
dismissing this complaint with prejudice. See: Wainwright Securities,
Inc. v. Wall St. Transcript, supra .
Respondent's strongest showing of the harm it would suffer if
Ms. Nolder were allowed to dismiss her complaint without prejudice
is the fact that such a dismissal would leave intact the findings of
the Wage and Hour Division, which could then be asserted in the
parallel proceedings. I agree that such action would harm Respondent.
Respondent would be deprived of its right to contest the Wage
and Hour Division's findings granted by 42 U.S.C. §5851(b) and 29
C.F.R. Part 24.4 On the other hand,
dismissing this complaint with
prejudice will operate as a complete, adverse adjudication of the
issues raised in the complaint, protecting Respondent from the
prospect of having the Wage and Hour Division's findings asserted in
the parallel action. To be absolutely certain that the findings are
not asserted elsewhere, however, I feel compelled to order that they
be vacated also.
In sum, Respondent answered the complaint when it filed its
request for hearing in this office. That act cut off Complainant's
power to dismiss her complaint voluntarily without order of court.
Dismissal without prejudice will harm Respondent substantially, by:
(1) leaving intact the Wage and Hour Divisions's findings, the
validity of which, Respondent has not yet been able to contest; (2)
delaying resolution of the complaint, contrary to the intent of
Congress and the Secretary of Labor, and to Respondent's detriment;
and, (3) forcing Respondent to defend the claim in a forum with less
congressionally recognized expertise than the Department of Labor
possesses. As a complete adverse adjudication of the issues
presented by Complainant's March 15, 1983 complaint alleging discriminatory
[Page 10]
employment practices on the part of Respondent in violation
of 42 U.S.C. §5851 of the Energy Reorganization Act, 42 U.S.C.
§5801 et seq . and the implementing regulations found at 29
C.F.R. Part 24 dismissal with prejudice will protect Respondent from
such harm. I conclude that dismissal with prejudice is appropriate.
III. Discovery motions
A. Factual Background
The parties embarked upon discovery in January 1984 by exchanging
interrogatories and requests for production of documents. On
February 2, 1984 a deposition schedule was agreed upon. Thereafter
responses and objections to the interrogatories and requests for the
production of documents were made and some of the requested
documents were exchanged. Both sides lodged motions to compel
production of additional documents, but Respondent withdrew its request at
the hearing. On February 28, the day before Complainant's
depositions of two Kaiser employees were to be taken, Complainant's
attorney informed Respondent that Ms. Nolder was withdrawing her claim
and was therefore cancelling the scheduled depositions. Respondent
subsequently moved for sanctions for Complainant's "eleventh hour"
cancellation of her depositions of the Kaiser employees arguing that
Respondent's counsel incurred expenses in and billed Respondent for
its services travelling from counsel's Washington, D.C. offices to
Oakland, California, to prepare the deponents and attend the
depositions. To resolve the disputes which had arisen during discovery a
March 14 conference call was held between the undersigned and the
attorneys for Complainant and Respondent. An order was issued on
March 15 directing in relevant part: (1) Complainant to file a
formal motion to withdraw her complaint with supporting authorities;
(2) Each party to make documents available to the other according to
the terms of each party's previous response to the other's request
for production of documents; and, (3) Complainant to appear for
Respondent's deposition of her according to the February 2, 1984
agreed discovery schedule. Thereafter, Respondent moved to compel
Complainant's presence on April 4 as well as on April 3 for the
purposes of deposing her. Respondent withdrew this motion at the
hearing also. (Tr. P. 68.)
Now pending are the following motions: (1) Complainant's
motion to compel the production of additional documents; and, (2)
Respondent's motion for sanctions for Complainant's February 28
cancellation of the February 29 depositions of the Kaiser employees.
[Page 11]
B. Complainant's Motion to Compel Production of Additional
Documents
I must decline to rule on this motion because the dismissal for
cause has rendered it moot. This motion is more appropriately
lodged in the state forum where relief is now sought. Because
different legal theories will be involved in the state action ruling on
this motion now would necessitate my ruling on matters beyond my
jurisdiction and expertise. I decline the opportunity to do so.
C. Respondent's Motion For Sanctions for Complainant's
Cancellation of Her Disposition of the Kaiser Employees
Since this dismissal is with prejudice, I lack the power to
require an attorney's fee to be paid. (9 Wright and Miller, Federal
Practice and Procedure , Section 2366, at pp. 180-181 and cases cited
therein.) The sanctions requested consist entirely of attorneys'
fees and expenses, they may not be awarded here. Nevertheless,
cancelling the depositions of the Kaiser employees the day before they
were scheduled was unfortunate behavior on the part of Complainant's
attorney. The situation was anomalous. Because the deposition was
Complainant's, Respondent did not have occasion to seek an order
that the deposition take place. No order having issued, I do not
have power to impose sanctions for the actions of Complainant's
attorney, no matter how unfortunate or anomalous his behavior was.
[29 C.F.R. §18.29(b).]
Recommended Order
1. It is ordered that Sherrill J. Nolder's complaint filed
March 15, 1983 under the Energy Reorganization Act, specifically
under 42 U.S.C. §5851 and the implementing regulations found at 29
C.F.R. Part 24, is dismissed with prejudice according to 29 C.F.R.
§24.5(e)(4)(ii). Nothing in this decision and order is to be
construed to impair Complainant's right to bring and prosecute any
claims she may have based on state law or other federal law besides
42 U.S.C. §5851 and its implementing regulations.
2. The findings of the Wage and Hour Division of the Employment
Standards Administration as embodied in the December 22, 1983
letter of Area Director Frank A. Conte are vacated.
3. Complainant's motion to compel production of additional
documents is denied.
[Page 12]
4. Respondent's motion for sanctions for complainant's
attorney's cancellation of the deposition of the Kaiser employees is
denied.
HENRY B. LASKY
Administrative Law Judge
Dated: 25 MAY 1984
San Francisco, California
HBL:csw
[ENDNOTES]
1 "47 FR 30452" is cited
by Ms. Nolder as the basis of the
March 15, 1983 complaint. I treat the complaint as arising
under the statutes and regulations listed above.
2 Despite the fact that an order to
show cause was not issued,
the parties were afforded the same opportunity to brief and
argue the merits of Complainant's motion at the April 5 hearing
that they would have been afforded if the matter were heard
upon an order to show cause.
3 29 C.F.R. Part 18 mentions
dismissals at Section 18.39(b).
That section provides for dismissals where the party who
requested a hearing in the office of Administrative Law Judges
abandons its request by failing to appear at the hearing
without good cause. Here, Respondent requested the hearing, which
act, under Section 18.39(b), vests it with the power to
abandon. It has not. Accordingly, Section 18.39(b) does not
apply, for this additional reason.
4 Complainant asserts that its
withdrawal of the complaint/
request for dismissal automatically vacates the Wage and Hour
Division's findings. I have found no authority for this assertion
and apparently neither could Complainant who at the hearing
was specifically granted leave to bring such authority to
my attention. (Tr. pp. 100-101.) Complainant failed to do so.