AMENDED ORDER OF DISMISSAL
This matter is before me on a Complaint of Discrimination filed by Sean Tadlock pursuant to section 105(c)(3) of the Federal Mine Safety and Health Act of 1977. 30 U.S.C. § 815(c)(3). As detailed below, Complainant has consistently failed to fulfill his obligations as a litigant, including failures to participate in communications with this Office which were intended to clarify and explain the litigation process and his obligations as a party, failures which continue despite recent communications.
Pursuant to an Application for Temporary Reinstatement filed on Tadlock’s behalf by the
Secretary of Labor, he was reinstated to his position by order dated May 16, 2012.
Subsequently, the Secretary completed her investigation of Tadlock’s complaint of
discrimination filed with her Mine Safety and Health Administration, and determined that
Tadlock’s discharge was not in violation of the Act. Tadlock then elected to pursue the claim on
his own behalf before the Commission. His complaint, pursuant to section 105(c)(3) of the Act,
was filed on June 6, 2012. Big Ridge answered the complaint, and moved to expedite
proceedings. On June 21, 2012, a Scheduling Order was entered, directing the parties to confer
and attempt to reach agreement on a schedule for litigation of the case. Respondent, by e-mail,
proposed a schedule to Complainant, including a proposed hearing date of August 27, 2012.
Complainant did not respond. A conference call was arranged for July 16, 2012, in order to
discuss scheduling. Complainant failed to participate in the call. A hearing date of September
27, 2012, was established, and a Notice of Hearing was entered on July 30, 2012.
Respondent initiated discovery on July 2, by serving Interrogatories and Requests for
Production of Documents on Complainant. When he failed to timely respond, a motion to
compel was filed and, by Order dated August 20, 2012, Complainant was directed to serve
responses to the discovery requests on or before August 24, 2012. He has, to date, failed to
respond to Respondent’s discovery requests.
On August 27, 2012, Respondent moved for the
imposition of sanctions, requesting that the complaint be dismissed on grounds of Complainant’s
failure to comply with the order and failure to cooperate in discovery.
As noted above, Complainant has failed, despite repeated requests and directives, to
maintain acceptable contact with this forum. He maintained an e-mail address and phone
number, but only sporadically responded to messages and virtually could not be contacted by
phone.
The following description of an attempt to hold a telephonic status conference is
illustrative of the failures of communication. On August 24, in response to previous messages,
Complainant inquired by e-mail what times for a conference call would be good for the Court.
That date, a response was sent that that day or the following Monday, “virtually any time
between 8:00 and 4:00" would be acceptable, and conference line numbers were provided. On
August 27 Complainant responded that he was “available . . . whenever Mr. Wolff is available.”
No time was proposed for the call. On August 29, the Court proposed, by e-mail, a conference
call at 3:00 p.m. that date, or alternatively at 10:00 a.m. on August 31. No communication
regarding those proposals was received from Complainant. At both proposed times, counsel for
Respondent and the Court called the conference line, but were not joined by Complainant.
The failed communication of August 31, 2012, resulted in entry of an Order Directing Complainant to Fulfill Litigation Obligations on Pain of Dismissal. Complainant was directed to establish a reliable means of communicating with Respondent’s counsel and the Court; to personally speak to counsel for Respondent regarding outstanding discovery, the scheduling of his deposition, and other matters; and, to comply with the requirements of the Notice of Hearing. Complaint was advised that failure to comply with the order, or to otherwise fulfill his obligations as a litigant would result in dismissal of his complaint.
By September 6, 2012, there was no indication that Complaint had made any effort to comply with the August 31 Order. Complainant had not complied with the directive to communicate with Respondent’s counsel and, as a result, there was little indication that Complaint’s deposition, tentatively scheduled for September 11, could be taken. Complainant’s failures had frustrated Respondent’s attempts at discovery and preparation for the hearing, some twenty-one days away.
On September 6, 2012, an Order Continuing Hearing and Order to Show Cause was entered, directing Complainant to:
show cause why the complaint should not be dismissed for his repeated failures to respond to communications attempted by this office and Respondent’s counsel, his failure provide discovery responses as obligated by Commission Rules and the August 20, order compelling him to provide such responses; and his failure to comply with the Order of August 31, 2012. Complainant’s response to this order shall be made in writing, certified under oath, and shall be filed on or before September 21, 2012. Failure to timely respond to this order, and the demonstrate good cause for the itemized failures will result in dismissal of the complaint.
That order was served on the parties by electronic mail, first class mail, and certified mail. Tracking information indicates that notice of the certified mailing to Complaint was left on September 13, and that delivery occurred on September 17, 2012. Recent communications indicate that Complaint has maintained his e-mail address, and there is no indication that the electronically mailed copy of the order and the copy mailed first class were not timely received. Complainant failed to respond to the order to show cause.
On September 24, Respondent requested, by e-mail, that the complaint be dismissed. Because it was unclear at that time whether a timely response to the order had been filed, no action was then taken. On September 27, at 3:40 p.m., Complainant e-mailed a response apparently acknowledging that his responses to discovery remained outstanding, and inquiring whether he was obligated to appear for the hearing, which had been scheduled to commence some six hours earlier. On October 3, Complainant sent an e-mail apparently stating again that he intended to submit his responses to discovery.
While Complainant has recently acknowledged that discovery remains outstanding, the fact remains that he has failed to comply with the initial scheduling order; failed to timely respond to Respondent’s discovery; failed to respond to Respondent’s motion to compel and subsequent motion to dismiss; failed to comply with the order directing him to fulfill litigation responsibilities; and, failed to comply or make any attempt to respond to the order to show cause. Moreover, he has failed to respond to numerous attempts at communications intended to address outstanding matters.
Based upon the foregoing, it is ORDERED: that the complaint is hereby DISMISSED.
/s/ Michael E. Zielinski
Michael E. Zielinski
Senior Administrative Law Judge
Distribution (Electronic and Certified and First Class Mail):
Daniel W. Wolff, Esq., Crowell & Moring LLP, 1001 Pennsylvania Ave. NW, Washington, DC 20004-2595, DWolff@crowell.com
Sean Tadlock, 245 Townshend Ave., P.O. Box 05, Shawneetown, IL 62984
Tad.locx@gmail.com