Bacon v. Con-Way Western Express, 2001-STA-7 (ALJ May 15, 2001)

U.S. Department of Labor

Office of Administrative Law Judges 603 Pilot House Drive - Suite 300 Newport News, Virginia 23606-1904 (757) 873-3099 (757) 873-3634 (FAX)

Issue date: 15May2001

Case Nos.: 2001-STA-0007

In the Matter of:

JOHN P. BACON,
    Complainant,

    v.

CON-WAY WESTERN EXPRESS,
    Respondent.

   By Post-Hearing Order #1 - Order to Show Cause, issued April 6, 2001, the Presiding Judge ordered Complainant, John P. Bacon, to show cause why his complaint should not be dismissed for: 1) his repeated abusive, belligerent and irate behavior, both on and off the record on April 3, 2001; and 2) his refusal to prosecute his complaint at the hearing on April 3, 2001.

   Complainant's response to the order was received on April 16, 2001. Respondent's memorandum in support of dismissal was received on May 7, 2001.

   Consistent with most other papers filed by Complainant in this case, his latest response is essentially and incomprehensible rant laced with invective against Respondent.¹ Unfortunately, Complainant's response does little to address the concerns expressed in the show cause order. On the other hand, Respondent's memorandum quite clearly outlines the history of this case and addresses Complainant's various arguments made during that time.

   A telephone conference call was held in this case on January 12, 2001.² On that date, the Presiding Judge stressed repeatedly the importance of Complainant being represented by counsel. Moreover, the Presiding Judge told Complainant that the U.S. Department of Labor would not appoint an attorney to represent him. Complainant completely rejected the suggestion to retain counsel and indicated that he wished a hearing as soon as possible. However, in trying to come up with a hearing date in Denver agreeable to all parties, the earliest date that could be agreed upon was April 3, 2001.³ In that conference call, Respondent agreed to voluntarily cooperate, produce all relevant records and witnesses in order to try to accommodate the pro se Complainant.

   Subsequent to the conference call, the Presiding Judge received papers from Complainant on February 23, 2001. The first page is fairly difficult to read, but purports to be a request for subpoenas regarding witnesses and documents.⁴ The second page is a copy of my Pre-Hearing Order #1. Scrawled across the order is the following:⁵

   In response to this filing, the Presiding Judge's legal technician sent a letter and blank subpoena forms to Complainant. Complainant was informed he should prepare them and return them for the Presiding Judge's signature. Complainant did not comply with these procedures.

   On the date of hearing, prior to even going on the record, Complainant carried on for the better part of an hour an almost incomprehensible diatribe against the Respondent, Respondent's Counsel, and witnesses. Aside from Complainant's rantings about conspiracies, coverups, and deception, the Presiding Judge was able to discern two issues which needed to be addressed on the record before actually proceeding with taking testimony and receiving in exhibits. The following matters were eventually addressed on the record by the Presiding Judge, notwithstanding continued abusive and belligerent interruptions by Complainant.

   First, Complainant insisted that the eight witnesses voluntarily produced by Respondent were insufficient. Notwithstanding Respondent's insistence that its CEO in California had no involvement with the termination, Complainant maintained otherwise and requested the CEO be forced to testify. Moreover, Complainant also requested the testimony of another individual whom he could not identify. In an effort to accommodate the pro se Complainant, the Presiding Judge ruled that a post-hearing deposition could be taken of the CEO to determine if he had any relevant knowledge or relevant documents not previously turned over to Complainant. Moreover, the deposition could include questions aimed at identifying the individual sought by Complainant.

   Second, on the date of hearing, Complainant requested for the first time that the hearing be continued because he wished additional time to retain counsel. This was the first notice that either the Presiding Judge or Respondent had that such a request would be made. Complainant insisted that his submission on February 23, 2001, regarding subpoenas was sufficient notice that he wanted a continuance to retain counsel. While there is a vague reference to desiring an appointed lawyer in that submission, the Presiding Judge found this insufficient to put anyone on notice that Complainant desired a continuance to retain an attorney.⁶ Accordingly, the motion was denied.⁷ Complainant was Ordered to proceed with his case. Complainant refused to proceed and continued to hurl invective and verbal abuse on everyone present. The hearing was adjourned and United States Marshals were summoned to eject Complainant from the courtroom and the U.S. Customs House. The Presiding Judge stands by his rulings at the hearing.

¹This latest pleading additionally includes a tirade against the actions of the Presiding Judge.

²Notwithstanding the case being docketed with the Office of Administrative Law Judges on November 7, 2000, it took almost two months to get Complainant to commit to being available for a telephone conference call. On November 30, 2000, the Presiding Judge issued Pre-Hearing Order #1, ordering Complainant to provide a telephone number within ten (10) days.

³This was due in no small part to Complainant's unavailability in February and much of March 2001.

⁴Complainant listed several names; however, no addresses were given. Respondent later noted that it intended to produce these witnesses with the exception of the CEO, who had no direct knowledge of the incident. Prior to hearing, Complainant did not object.

⁵At hearing, Complainant produced another handwritten copy of the first page. Unlike the page submitted to the Presiding Judge by mail, the copy presented at hearing contained the following words at the bottom:

⁶It had already been specifically explained to Complainant during the conference call that an attorney could not be appointed for him under the Surface Transportation Assistance Act (STAA).

⁷On the date of hearing, Complainant made it clear that his last minute continuance request was motivated, in no small part, by a desire to inconvenience Respondent and Respondent's attorney and witnesses as much as possible (Tr. 16).