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USDOL/OALJ Reporter
Young v. Florida Power
& Light Co., 93-ERA-30 (ALJ May 25, 1994)
DATE: May 25, 1994
CASE NO.: 93-ERA-30
IN THE MATTER OF
BENJAMIN YOUNG,
COMPLAINANT
V.
FLORIDA POWER & LIGHT COMPANY,
RESPONDENT.
RECOMMENDED DECISION AND ORDER DISMISSING COMPLAINT
On May 16, 1994, Complainant filed a Notice of Dismissal on
the ground that it would be uneconomical to pursue both the
instant proceeding under the employee protection provisions of
the Energy Reorganization Act and a racial discrimination claim
in the state courts. According to Complainant, seeking relief in
the state court would be both more economical and would afford
broader relief. Complainant would prefer an abatement or stay of
this proceeding pending outcome of suit in the state courts.
However, the same request as Complainant recognizes, was
previously denied by the undersigned's order of March 10, 1994,
attached hereto as Appendix A.
Clearly, Complainant has no intention of prosecuting his ERA
claim at this time. He might at some indefinite date attempt to
revive this proceeding, if unsuccessful in the state courts.
Complainant's approach to this proceeding can, in the past year,
at best be described as dilatory. (See Appendix B). The
record compels the conclusion that Complainant will not prosecute
the instant case. The case should be dismissed for lack of
prosecution with prejudice.
Since Complainant requests dismissal of the proceeding and
both parties have had an opportunity to brief the question of
whether this case should be dismissed with prejudice, there is no
need to issue an order to show cause pursuant to 29 C.F.R. §
24.5(f).
The Respondent's request for costs from March 10, 1994 will
be denied. See Malpass v. Genreal Electric
Company, Case Nos.
[PAGE 2]
85-ERA-38 and 85-ERA-39 (Secretary's Final Decision and Order
(March 1, 1994)) slip op p. 20 et seq.
______________________________
THEODOR P. VON BRAND
Administrative Law Judge
TPVB/jbm
[APPENDIX A]
DATE: March 10, 1994
CASE NO.: 93-ERA-30
IN THE MATTER OF
BENJAMIN YOUNG,
COMPLAINANT
V.
FLORIDA POWER & LIGHT COMPANY,
RESPONDENT.
ORDER DENYING MOTION FOR ABATEMENT
Pretrial Order No. 4 issued on March 3, 1994, in pertinent
part providing as follows:
1. Discovery is to be completed by April 15, 1994.
2. The parties are to exchange witness lists, which are as
definitive as possible, and telefax to the undersigned a
joint deposition schedule on March 7, 1994.
[PAGE 3]
3. If there is a controversy concerning the deposition
schedule, the parties are to arrange for a conference call
on March 8, 1994.
On March 7, 1994, in the course of a telephone conference
Complainant's counsel advised that he would seek dismissal of the
proceeding because he intended to pursue alternative relief in
the state court system and before the EEOC. Complainant's
counsel at that time advised that he would telefax a document
withdrawing the complaint on March 8, 1994.
On March 9, 1994, Complainant filed a Request for Abatement
Pending Decision on State Court Jurisdiction. As grounds,
therefore, Complainant stated that seeking relief in the state
court system would be more economic and afford broader relief
than that available in the instant case. Complainant's counsel
further advised, however, that the state court proceeding may be
barred by the statute of limitations. Apparently, it is his
intention to urge that the state suit is not time barred
evidently on the basis of an equitable tolling theory. It is
also evident from Complainant's motion that currently he has not
yet filed a proceeding in the state court system and that he
expects to obtain a right to sue letter from the EEOC in the
future. In short neither proceeding is underway.
The request for abatement must be considered in the context
of the prior delays frustrating the discovery process in this
case. See Appendix to Pretrial Order No. 3 dated February 28,
1994. Further delays in the form of abatement cannot be
justified considering the prior history of this proceeding. In
any event, a stay in this proceeding is not warranted on the
basis of proceedings in other forums which have not yet
commenced. It should be noted, in this connection, that the
chances of Complainant obtaining a favorable ruling on the
statute of limitations issue in a future state court proceeding
is at best problematic. Equally uncertain is the date on which
this issue might be decided by the state court. The motion for
abatement must be denied; granting it would subject this
proceeding to an essentially open ended stay.
Respondent urges a dismissal. That request is premature at
this time. Pretrial Order No. 4 is modified as follows:
1. Discovery is to be completed by April 15, 1994.
2. The parties are to exchange witness lists which are as
definitive as possible and telefax to the undersigned a joint
[PAGE 4]
deposition schedule on March 16, 1994.
3. If ther is a controversy concerning the deposition
schedule, the parties are to arrange for a conference call on
arch 17, 1994.
If the terms of this order are not complied with, then
consideration may be given to a motion to dismiss for lack of
prosecution, should one be filed. Accordingly,
IT IS ORDERED that Complainant's motion for abatement be,
and it hereby is, denied.
IT IS FURTHER ORDERED that the parties are to complete
discovery in accordance with the terms of this Order.
IT IS FURTHER ORDERED that the prior trial date of June 20,
1994 remains in effect.
_______________________________
THEODOR P. VON BRAND
Administrative Law Judge
TPVB/jbm
[APPENDIX B]
APPENDIX
Summary of the record in Young v. Florida Power & Light
Co.:
April 15, 1993:
Complainant filed a Complaint with the Department of Labor,
Wage and Hour Division through his attorney, Debra S. Katz.
ay 20, 1993:
Complainant's telegram was received appealing an adverse
decision by the Wage and Hour Division.
ay 26, 1993:
Notice of Hearing and Pretrial Order indicated that the
hearing was set for June 21, 1993.
June 9, 1993:
[PAGE 5]
The hearing, originally set for June 21, 1993, was postponed
at the Complainant's request, until further notice.
Complainant's deposition was scheduled for this date, and
Complainant did not appear. Complainant's attorney said she
would not be available for Complainant's deposition until
mid-August.
June 15, 1993:
Complainant's counsel, citing a busy schedule, requested a
postponement of the hearing until October 11 or 18, 1993.
July 1, 1993:
Second Notice of Hearing and Prehearing Order instructed
that: [1] Complainant should make himself available for
deposition for two days prior to August 20, 1993; [2]
parties would conclude pretrial discovery by October 8,
1993; and [3] the hearing was scheduled for November 2,
1993.
July 8, 1993:
Respondent filed Notice that Complainant's deposition would
be taken on August 4, 1993
August 6, 1993:
Notice of parties agreement that: [1] Claimant's depositin
would be taken in the latter part of September; [2] all
discovery would end by January 18, 1994; and [3] the hearing
would commence on February 8, 1994.
October 21, 1993:
Respondent filed a Motion to Compel and the court issued an
Order to Show Cause why Complainant should not be ordered to
make himself available for deposition on November 10, 11, or
12, 1993.
October 26, 1993:
Complainant respondent to the Order to Show Cause by
answering that [1] Complainant has moved to Buffalo, New
York, and was seeking to locate new counsel; [2] new counsel
would soon enter an appearance, but due to prior commitments
was unable to prepare and defend Complainant's deposition;
[3] Complainant's current counsel was out of the office and
unable to prepare for or defend the deposition as scheduled;
and [4] the depositin should be postponed for one month
which would not prejudice the Respondent or require the
hearing date to be moved from February 8, 1994.
[PAGE 6]
Respondent's Motion to Compel was denied by the
Administrative Law Judge.
November 16, 1993:
Debra S. Katz withdrew as Complainant's counsel.
November 17, 1993:
A Notice of Appearance as counsel was filed by Michael R.
Seward.
November 22, 1993:
Respondent filed a Request for Discovery Conference on the
grounds that Complainant failed to respond to a Request for
Production of Documents or to answer Respondent's
Interrogatories, both of which should have been accomplished
by November 15, 1993.
November 30, 1993:
Respondent filed a Motion to Compel Complainant to respond
to its Request for Production of Documents and to answer
Respondent's interrogatories.
December 3, 1993:
Complaiannt filed a Request to Enter Upon Land for
Inspection and Other Purposes.
December 8, 1993:
The case was reassigned to Administrative Law Judge Theodor
Von Brand.
December 21, 1993:
Complainant's Status Report indicated that Complainant would
not be ready for trial on February 8, 1994, and that
Complainant would need at least one year to conduct
discovery and prepare for trial.
January 6, 1993:
The Respondent filed its objection to the Complainant's
Request to Enter Upon Land, on the grounds that the request
did not describe with particularity the areas or items to be
inspected, measured, surveyed and photographed.
January 12, 1994:
Pretrial Order No. 1 instructed the parties that: [1]
Complainant's deposition must be completed by February 4,
1994; [2] With regard to the Request to Enter Upon Land,
Complainant must identify, no later than January 21, 1994,
the areas he seeks to inspect more specifically, and
Complainant must explain why access is necessary;[1] [3]
discovery must be completed by March 31, 1994; [4] the trial
in this matter is scheduled for June 20 through 24, 1994.
January 27, 1994:
Complainant's Motion for a one day extension of the
deposition schedule was granted. Complainant's deposition
was scheduled to be taken on February 5, 1994.
February 22, 1994:
Complainant indicated in a conference call that a
continuance of the discovery schedule and hearing date is
necessary. Due to his obligations in a case in Federal
District Court, he might withdraw from this case unless a
continuance of the discovery schedule and the hearing date
is granted, because he would be unable to continue to
effectively represent his client.
Pretrial Order No. 2 instructed the parties to file
memoranda outlining their respective positions on the
question of continuance, and reminded Counsel for
Complainant to hold himself in readiness to proceed with the
established schedule.
[ENDNOTES]
[1] To date, no response to this directive has been filed by
the Complainant.
