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Howick v. Campbell-Ewald Co., 2004-STA-7 (ALJ Feb. 27, 2004)
U.S. Department of Labor | Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 | ![]() |
Issue Date: 27 February 2004
CASE NO.: 2004-STA-7
In the Matter of:
ARK E. HOWICK,
Complainant
v.
CAMPBELL-EWALD COMPANY,
FRED BATTEN, ESQ. AND CLARK
HILL, LLC.
Respondent
Edward A. Slavin, Jr., Esquire
For Complainant
Fred W. Batten, Esquire
For Respondent
Before: RICHARD A. MORGAN
Administrative Law Judge
This proceeding arises from a claim filed under the employee protection provisions of Section 31105 of the Surface Transportation & Assistance Act of 1982 (STAA). Complainant alleges that the motion requesting a "gag order" filed by Campbell Ewald's legal counsel in a previous administrative proceeding1 constitutes a violation of whistleblower laws.
On September 18, 2003, Administrative Law Judge Phalen issued a Recommended Decision and Order dismissing the complaint in Case Number 2003-STA-6.2 On September 19,
2003, the respondent submitted a motion objecting to ex parte communications by the complainant and his legal counsel and requested a "gag order" during the pendency of the matter before the court. On September 19, 2003, the Complainant filed a complaint with the Director of the Office of Investigative Assistance for OSHA alleging the Respondent's September 19, 2003 motion constituted a violation of the Department of Labor's whistleblower laws and requested his complaint be filed under STAA and TSCA. Just after ALJ Phalen's decision, the respondent withdrew its September 19, 2003 motion on September 24, 2003. On October 28, 2003, OSHA dismissed the STAA complaint in light of the fact that the Respondent withdrew its September 19, 2003 motion.
On November 5, 2003, Complainant appealed the OSHA findings and requested a formal hearing. I was assigned the case on December 4, 2003. A hearing is scheduled for April 6, 2004 in Toledo, Ohio.
On February 5, 2004, I issued an order to show cause why the above-captioned matter should not be immediately dismissed with prejudice for failure to state a claim upon which relief can be granted or why a summary decision denying the complaint should not be issued. Respondent filed a Brief in Response to Order to Show Cause requesting summary dismissal with prejudice. Complainant responded to my order to show cause by filing a Response to Show Cause Order and Motion for Remand to OSHA.
I. Motion for Remand to OSHA
On December 10, 2003, I issued a Notice of Hearing and Pre-Hearing Order in the above-captioned matter. Such Order states:
All motions must specifically reflect the party's efforts to resolve the matter with the opposing party. It will be insufficient grounds to state that the opposing party/counsel could not be reached or was unavailable. Motions with such inappropriate justification will not be acted upon.
(Notice of Hearing, p.2). Complainant's Counsel does not mention anywhere in his response that he contacted Respondent's Counsel regarding his Motion for Remand to OSHA. In addition, Respondent's brief makes no mention of this motion. Thus, it is my assumption that Mr. Slavin completely disregarded my guidelines stated in the Notice of Hearing and Pre-Hearing Order. As such, Mr. Slavin's Motion for Remand to OSHA will not be acted upon.
Moreover, in support of his Motion for Remand, Mr. Slavin states:
Mr. Howick's complaint was never properly investigated by OSHA, which again has violated the requirements to conduct an actual investigation before ruling in favor of a
federal agency. OSHA again violated its Investigator Manual, which it must obey. See Service v. Dulles, 354 U.S. 363 (1957).
(Complainant's Motion for Remand, dated February 17, 2004, p. 19). OSHA is given broad discretion in investigating. 29 C.F.R. § 1978.103(a). I will not review the procedure performed by OSHA for appropriate investigation. However, Mr. Slavin cites the OSHA Investigator Manual in his argument that a proper investigation was not performed. The OSHA Whistleblower Investigations Manual also states "[i]f, �, it can be conclusively shown that a prima facie case cannot be developed, the investigation will be terminated." (OSHA Instruction Whistleblower Investigations Manual, p. 3-5). The October 28, 2003 letter from OSHA states that the complaint was dismissed because Respondent withdrew its September 19, 2003 motion requesting a gag order. Thus, it can be determined that OSHA terminated investigation because a prima facie case could not be developed.
Furthermore, Mr. Slavin's reference to the case of Service v. Dulles, 354 U.S. 363 (1954), is unpersuasive. The issue in Dulles was whether the State Department's Loyalty Security Board followed the applicable 1949 or 1951 regulations of the Department. It makes no mention of the proper investigation procedures of OSHA. Additionally, the case does not discuss investigation procedures of any government agency under current regulations.
II. Request for Dismissal of Claim
Respondent contends that summary dismissal of the above-captioned matter is appropriate under 29 C.F.R. § 18.40 based upon Complainant's failure to prove the elements necessary for a claim under the STAA. Respondent states: "Complainant has failed to either plead or otherwise demonstrate that the challenged conduct constitutes an �adverse employment action' affecting his �pay, terms, or privileges of employment,' and that Complainant has, therefore, failed to establish the necessary elements of a claim under the STAA." (Respondents' Brief, dated February 18, 2004, p.1).
According to 29 C.F.R. § 18.40(d), "[t]he administrative law judge may enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision."
Complainant has failed to show an adverse employment action, i.e., an element necessary to present a claim under which relief can be granted under the STAA. The facts present no employment action. The available relief for inappropriate action by legal counsel in a legal proceeding is to request sanctioning of counsel by the court, not an independent cause of action under the STAA.
It is hereby ORDERED that the request by Respondent for summary dismissal with prejudice is GRANTED and the appeal of Mark E. Howick is DISMISSED. It is further ORDERED that the hearing scheduled for April 6, 2004, in Toledo, Ohio, is CANCELLED.
RICHARD A. MORGAN
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).
1 Mark E. Howick v. Campbell-Ewald Company, 2003-STA-6 (ALJ, Sept. 18, 2003).
2 Judge Phalen dismissed the complaint based on a pattern of delay and malfeasance by complainant and his counsel. Judge Phalen illustrated Complainant's lengthy delay in making himself available for deposition and in answering discovery requests. The ALJ also explained Complainant's attorney's repeated violations of orders, including filing frivolous motions, filing letters instead of motions, making late requests, and failure to be prepared at the start of the hearing. The ALJ repeatedly warned the Complainant that he was dangerously close to having his complaint dismissed.