Powers v. Pinnacle Airlines, Inc., 2003-AIR-12 (ALJ May 21, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Issue Date: 21 May 2003

Case No.: 2003-AIR-12

In the Matter of

Coleen L. Powers,
    Complainant

v.

Pinnacle Airlines, Inc.,
    Respondent

   On May 12, 2003, I issued an Order dismissing Edward Slavin as the Complainant's counsel in this proceeding, based on the Complainant's representation that he no longer represented her. On May 19, 2003, I received "Respondent's Request for Supplementation of Court's May 12, 2003 Order Dismissing Counsel." Therein, the Respondent requested that I make it clear that Mr. Slavin's dismissal as counsel is irrevocable, and that he is not permitted to assist the Complainant or provide her with "unofficial" legal counsel in this matter. Respondent's counsel stated that, during a May 15, 2003 telephone conversation with the Complainant, she indicated that Mr. Slavin still represented her in other matters, and that she may retain him again as counsel in this case. I note that the Claimant made similar statements to my law clerk on the telephone. Respondent is concerned that the Complainant's discharge of Mr. Slavin was a ploy to avoid dismissal of her claims, and that Mr. Slavin will continue to advise the Claimant and may seek to represent her more actively later in the matter.

   The Respondent previously filed a motion to bar Mr. Slavin from representing the Claimant in this matter, which I have not yet ruled on, as it was made moot by the Complainant's dismissal of Mr. Slavin. As it appears possible that the Complainant may rehire Mr. Slavin at some point in the future, I rule on that motion now, and direct that Mr. Slavin is barred from entering an appearance or otherwise representing the Complainant in this matter. As grounds therefor, I note the following.

   Viewing the pleadings submitted by Mr. Slavin, it appears that he does not recognize the authority of the Court to make determinations and rulings in this matter. Mr. Slavin apparently believes that a denial of the motions he submits on behalf of the Complainant is merely an invitation to make these demands again. Thus, although I denied the Complainant's Motion to Compel discovery responses, as well as the first motion to reconsider that denial, Mr. Slavin, on the Complainant's behalf, filed a second motion to reconsider, stating that she did not have to respond to the Respondent's discovery requests until I changed my mind and amended my "erroneous orders." Nor did Mr. Slavin, on Complainant's behalf, take any action to respond to the Respondent's discovery requests in response to my April 23, 2003 Order to Show Cause, or proffer any reason for the failure to do so. Instead, Mr. Slavin submitted yet a third request for reconsideration of my denial of the Motion to Compel, once again, raising no new arguments or factual allegations to support this request, and repeating the arguments in the first two motions to reconsider.

   Mr. Slavin also stubbornly refused to recognize my ruling of March 5, 2003, which I have since referred to repeatedly, that the only Respondent in this matter is Pinnacle Airlines, Inc. The Complainant originally filed her complaint with OSHA against Pinnacle Airlines, Inc. alleging violations of the AIR 21 and Sarbanes-Oxley Acts. After OSHA dismissed her complaint, noting, inter alia, that the Respondent is not a publicly traded company for purposes of the Sarbanex-Oxley Act, the Complainant requested a formal hearing, this time styling her claim as "Ms. Coleen L. Powers v. Northwest Airlines & Pinnacle Airlines, Inc. d/b/a Northwest Airlink. I noted that the Complainant could not unilaterally add Northwest Airlines, Inc., which is a publicly traded company, to the caption in an attempt to bring her claim under the jurisdiction of the Sarbanes-Oxley Act.¹ I dismissed the Complainant's claim under the Sarbanes-Oxley Act, noting that Pinnacle Airlines, Inc., is not a publicly traded company, and thus is not subject to suit under that Act. I specifically instructed the Complainant to list only Pinnacle as the Respondent in any future pleadings.

   Instead, Mr. Slavin stubbornly continued to refer to "Pinnacle Airlines et al." as "Respondents," and to complain that Northwest Airlines has not entered an appearance or responded to discovery.² In a recent pleading, Mr. Slavin, on Complainant's behalf, complained that she was ordered to "censor" the title of her documents to omit Northwest Airlines, and that this constituted an unlawful prior restraint that interfered with her First Amendment Rights.

   Mr. Slavin deliberately misinterpreted my actions in another matter as a "concession" that "graciously corrects" the elimination of Northwest Airlines from the caption in this case. In this regard, the Complainant recently filed a complaint with OSHA against Northwest Airlines Corporation, NWA Inc., and Pinnacle Airlines, Inc., d/b/a/ Northwest Airlink, et al., alleging that her rights under various whistleblower acts were violated when these respondents requested monetary sanctions against her in the instant case. OSHA forwarded this complaint to me, suggesting that I consolidate it with the instant case. I responded as follows:

Case No. 2003 AIR 12 is set for hearing on May 28, 2003. I note that Ms. Powers' March 28, 2003 complaint involves Northwest Airlines and NWA Inc., which are not parties in the case before me. In addition, Ms. Powers had indicated that she wishes her claim to be investigated by OSHA. Given all of these factors, I do not feel that it is appropriate to consolidate the March 28, 2003 complaint with the case currently pending before me.

   Accordingly, I returned the complaint to OSHA for investigation and determination. I did not, as claimed by the Complainant, order OSHA to investigate, or rule that Northwest Airlines or NWA were properly named as respondents in this case, nor is such an interpretation even remotely justified by the text of my letter.

   Mr. Slavin has repeatedly castigated this Court for giving "short shrift" to the Complainant's efforts to protect her rights, for failing to read her filings, and for not showing the slightest interest in learning the facts or affording a fair adjudication. I can assure Mr. Slavin and the Complainant that I have read every word of her pleadings; indeed, it has been necessary to do so several times, in order to determine exactly what it was that the Complainant was saying. As I noted in my March 19, 2003 Order, the Complainant's pleadings are a mishmash of generalizations and misleading statements, replete with string citations, paragraphs apparently copied from other pleadings, and discussions of issues that have nothing to do with the instant case. Indeed, in her most recent pleadings, the Complainant alleges that my refusal to investigate "Ms. Erickson's" discovery concerns by holding a conference call is invidiously discriminatory.

1. Referring to my orders as inaccurate, ill-advised, unsound, prejudicial, and pejorative, and in violation of the Complainant's rights to due process;

2. Accusing me of unfairness and lack of judicial temperament by not acceding to the Complainant's demand for a telephone conference

3. Claiming that I am a "cat's paw" and "enforcer" for large organizations that wish to be immune from criticism;

4. Claiming that I have demonized and objectified the Complainant, treated her discourteously, erroneously, and inappropriately, shown bias toward the employer, failed to treat the Complainant with dignity, respect and consideration, and demonstrated a hostile judicial disposition;³ 1.

5. Claiming that I am disqualified because of improper, inflammatory influences and ex parte statements by Chief Judge Vittone, Associate Chief Judge Burke, and Attorney Advisor Todd Smyth, who have an animus toward Complainant's counsel; 2.

6. Claiming that I have violated the Code of Judicial Conduct and the DOL Standards of Conduct by oppressing a whistleblower, suggesting an appearance of impropriety, which adversely affects the confidence of the public in the integrity of the government, and that I have engaged in notoriously disgraceful conduct, or conduct prejudicial to the government. In this regard, Mr. Slavin indicated that the Complainant was considering filing a peer review complainant and a complaint with the DOL IG; 3.

7. Suggesting that I am a "lawbreaker," who promotes disrespect for the law and anarchy.

   The Complainant and her counsel have every right to make vigorous arguments in support of her positions. Neither, however, is entitled to make misleading and factually incorrect statements, to flood the Court with boilerplate and string citations that have nothing to do with the issues presented by this case, and to repeatedly ignore the directives of this Court. Nor is either entitled to attack the dignity and integrity of this Court, in the hopes that I will recuse myself and the Complainant will have another chance with a different judge.

¹ I also noted that any complaint against Northwest Airlines was not properly before me, as it was not investigated and considered by OSHA; moreover, it was untimely, as it was made more than ninety days after the date of the alleged violation; finally, the Complainant was not an employee of Northwest Airlines, Inc., as required by the Sarbanes-Oxley Act.

² Ms. Powers is also reminded that the only Respondent in this matter is Pinnacle Airlines, Inc.

³ It is not clear why Mr. Slavin thought it was important to point out that the "hostile remarks" in my April 4, 2003 Order were made on the 35th anniversary of Dr. Martin Luther King's murder. The only logical conclusion I can draw is that, since the Complainant is African-American, I am a racist.