Erickson v. U.S. Environmental Protection Agency,, 1999-CAA-2 (ALJ Jan. 24, 2002)

U.S. Department of Labor

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: 24Jan2002

CASE NUMBER: 1999 - CAA - 2
    2001 - CAA - 8
    2001 - CAA - 13
    2002 - CAA - 3

IN THE MATTER OF

SHARYN ERICKSON,
    Complainant

       v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION IV, ATLANTA, GEORGIA,
KAROL SMITH & EPA INSPECTOR GENERAL,
    Respondents

   On January 14, 2002, Complainant filed a Renewed Motion to Compel Proper Answers to First Request for Production of Documents, a Renewed Motion to Compel First Interrogatories, and a Motion for a Protective Order. Respondent filed a Response on January 17, 2002.

   Complainant's First Request for the Production of Documents and Interrogatories were served on May 16, 2001. On July 30, 2001, Complainant filed a Second Motion to Compel Proper Answers to Complainant's First Set of Interrogatories, Request for Production of Documents, and a Motion for a Protective Order to Which Respondent filed a response on August 6, 2001. On September 5, 2001, Complainant moved for preclusion orders, sanctions and a default judgment based on Respondent's failure to comply with discovery to which Respondents replied on September 13, 2001.

   Interposed among these discovery requests and Motions to Compel were several Court pre-hearing conferences concerning discovery held in August, September and December. Court intervention was required on other occasions due to the inability of the parties to agree on and complete discovery in a professional manner. Complainant's earlier filed Motions to

Compel were, in part, the subject of there telephone conferences. I set January 15, 2002, as the date for completion of all discovery. On the December 13, 2001 telephone conference call I specifically told Complainant's counsel that if a Motion to Compel was warranted then:

[I]t better be sooner than later, because as we approach the deadline that's going to be it. I'm going to expect everybody to have transferred whatever they need.

(Telephone Conference Call Transcript, p. 22, December 13, 2001)

   Under 29 C.F.R. § 18.6 (2001), a party had ten days to respond after service of a motion. By filing a Motion to Compel on January 14, 2002, when the cut-off date for all discovery was January 15, 2002, Complainant's counsel did not allow enough time for a properly filed response before the end of discovery. As such Complainant's Motion to Compel is untimely and in direct violation of my admonishment not to wait until the last moment.

   Alternatively, Respondent did file a response after the cut-off date for discovery. After considering Complainant's Motion to Compel, Respondent's response, and the course of discovery I do not find merit in Complainant's Motion to Compel and find that Respondent adequately addressed Complainant's four interrogatories and seven requests for the production of documents. Accordingly, Complainant's Motion for a Protective Order to protect Complainant from "Respondents' oppression and undue burden in refusing to provide responses under oath, without rewriting them, and in complete answer to her questions" is DENIED.

   IT IS HEREBY ORDERED that Complainant's Renewed Motion to Compel Proper Answers to First Request for Production of Documents, Motion to Compel Proper Answers to First Interrogatories, and Motion for a Protective Order are DENIED.

      CLEMENT J. KENNINGTON
      Administrative Law Judge