DOL Home > OALJ > Whistleblower > Ekland v. National Institutes of Health, 95-ERA-3 (ALJ May 22, 1995) |
Date: May 22, 1995 Case No. 95-ERA-3 In the Matter of SHARYN EKLUND Complainant v. NATIONAL INSTITUTES OF HEALTH Respondent RECOMMENDED ORDER OF DISMISSAL Complainant Sharyn Ecklund filed a complaint under the employee protection provisions of the Energy Reorganization Act, as amended (ERA), 42 U.S.C. §5851, on June 9, 1994. After withdrawing the complaint on June 17, 1994, she reinstated it by letter of July 15, 1994. On August 5, 1994, the District Direc- tor, Wage and Hour Division, Baltimore, MD, dismissed her claim. Complainant submitted a request for a hearing to the Office of Administrative Law Judges on September 2, 1994. By order of November 7, 1994, I scheduled a hearing for November 29-30, 1994. Complainant requested a postponement. By order of December 5, 1994, I rescheduled the hearing for April 3-4, 1995, and ordered the parties to submit mutually acceptable alternative dates if that date was not agreeable. By letter of December 16, 1994, respondent agreed to the April hearing dates. By letter of December 20, 1994, complainant stated that the April hearing date was not acceptable, but failed to suggest alternate hearing dates. By letter of January 3, 1995, complainant stated that she hoped "within the next week or two to have a definite date ... " and would notify us accordingly. Two months passed without any further correspondence. On March 9, 1995, I issued an Order to Show Cause why the case should not be dismissed for failure to prosecute, and ordered complainant to submit a list of mutually acceptable alternative hearing dates after consultation with counsel for the respondent. Complainant responded by letter of March 24, 1995, but failed to show good cause for her failure to prosecute, or to otherwise comply with my order. She stated only that, because of
[PAGE 2] alleged poor health and the demands of being enrolled in law school, she "will not be free to consider [a hearing date] until the third or fourth week in May." She failed again to submit a list of acceptable alternative hearing dates. On March 30, 1995, respondent filed a Motion to Dismiss for failure to prosecute. On April 10, 1995, my law clerk, attorney- advisor Benjamin L. Siegel, wrote to complainant enclosing a copy of the Motion, reminding her that the applicable regulations required her to file a response by April 17, 1995. Complainant has failed to file any response. Since complainant appealed the case to this Office, she has failed to comply with two court orders directing her to submit acceptable hearing dates and has failed to demonstrate good cause for doing so. 29 C.F.R. § 24.5(e)(4) authorizes the Admin- istrative Law Judge to dismiss a claim for the complainant's failure to comply with a lawful order. Gore v. CDI Corpora- tion, 91-ERA-14, slip op. at 2 (Sec'y July 8, 1992). This case cannot continue to be held in abeyance indefinitely to suit complainant's convenience, as she apparently desires. The ERA whistleblower provision was meant to be an expedited proceeding, the respondent's ability to prepare a defense may be hampered by continuing delay, and the Department of Labor has no obligation to hold a case open in perpetuity. Compare Guity v. Tennessee Valley Authority, 90-ERA-10, slip op. at 4, 7 (Sec'y Jan. 24, 1994)(Secretary orders dismissal of case where complainant is unable to proceed with litigation because of mental incompetence). RECOMMENDED ORDER The complaint is hereby DISMISSED WITH PREJUDICE. ________________________________ EDITH BARNETT Administrative Law judge EB/BLS: bdw Washington, D.C. 4747