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USDOL/OALJ Reporter
ORDER DENYING COMPLAINANT MOTIONS TO SET HEARING IN
TUCSON, ARIZONA AND TO ADD INDIVIDUAL PARTY RESPONDENTS
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Scott J.B. Hunt Transport, Inc., 2002-STA-1 (ALJ Dec. 7, 2001)
| U.S. Department of Labor | Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 |  |
Case No.: 2002-STA-1
In the Matter of
ADRIAN R. SCOTT
Complainant
v.
J.B. HUNT TRANSPORT, Inc.
Respondent
TUCSON, ARIZONA AND TO ADD INDIVIDUAL PARTY RESPONDENTS
Complainant has filed a motion to set the hearing location of this case in Tucson, Arizona. He represents that he does not have the financial resources to employ counsel, finance transportation, lodging or meals to sustain himself in a distant location. He further indicates that he intends to request the presence of the U.S. Department of Labor, Occupational Safety and Health Investigator at these proceedings. That office had concluded following investigation of the complaint that it was without merit. I do not believe that the OSHA investigator could add any factual data to the record of this case since the hearing on the complaint is de novo in nature.
Earl M. Jones, III, Respondent's counsel, submitted a responsive statement to the Complainant's motion. In that statement, Mr. Jones indicates that the Complainant reported to the Respondent's facility in New Brunswick, New Jersey and that during the period of his employment with J. B. Hunt, that he actually lived in the Baltimore, Maryland area. It is represented that at no time did the State of Arizona have any connection with any of the events alleged in the complaint. Apparently, the Complainant has now relocated to the State of Arizona following his separation from Respondent. Mr. Jones argues that Tucson, Arizona is over 2,000 miles from the New Jersey terminal where Complainant was employed and that the Employer would have to spend a considerable amount of money and employee time away from their normal duties in order to make the trip to Arizona. This will necessitate Employer incurring significant travel expenses.
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At the time of a conference call on November 30, 2001, both the Complainant and Mr. Jones indicated that it was their intention to call as witnesses in this case individuals who reside in New Brunswick, New Jersey, the State of Pennsylvania and also witnesses located in Arkansas. The only connection with the State of Arizona is that Complainant now resides in that locale. The location of his current residence is not determinative as to where the most convenient location for hearing of this case ought to be. Based upon the considerations of both parties and also of the potential witnesses in this case, I believe that this matter ought to be heard at a federal facility located somewhere in the vicinity of New Brunswick, New Jersey.
Therefore, Complainant's motion to schedule this case for hearing in Tucson, Arizona is hereby denied and the matter will be scheduled for hearing in the location of New Brunswick, New Jersey.
Complainant has also moved to amend his complaint to add individuals named Kirk Thompson and Ed Pfenning as Respondents in this action. Mr. Scott asserts that Mr. Thompson and Mr. Pfenning are employees of J. B. Hunt Transport, Inc. who were involved in the determination to discontinue his employment. Twenty-nine C.F.R. § 18.5(e) provides in pertinent part:
(e) Amendments and supplemental pleadings. If and whenever determination of a controversy on the merits will be facilitated thereby, the administrative law judge may, upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, allow appropriate amendments to complaints, answers, or other pleadings; provided, however, that a complaint may be amended once as a matter of right prior to the answer, and thereafter if the administrative law judge determines that the amendment is reasonably within the scope of the original complaint.
Therefore, Complainant is permitted, as a matter of right, to amend his complaint once, if the determination of this controversy will be facilitated and the amendment will not prejudice the public interest and rights of the parties.
The Act provides that "A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment" for conduct protected by the Act. 49 U.S.C. §§ 31105(a)(1)(1994)(emphasis added). This provision has been interpreted by the Secretary to permit personal liability. See, Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y Dec. 30, 1991). Twenty-nine C.F.R. § 18.5(e) permits the amendment of complaints where the amendment would "facilitate" a determination of the controversy on the merits and where it would not prejudice the public interest. In this case, I cannot conclude that the addition of these two individuals as party Respondents would facilitate a determination of this controversy on the merits. In fact, it would complicate it. As the Respondent notes in his responsive statement to the Motion:
Respondent is bound by the acts of its agents committed within the course and scope of the agency relationship. Consequently, there is no legitimate basis for adding Thompson or Pfenning as individual respondents in this matter. Complainant has not shown and cannot show that any potential remedy would be unavailable without the presence of Thompson and Pfenning. Consequently, he cannot establish that he will be prejudiced if his Motion to Amend is denied.
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I agree with the Employer in his contention in that regard. The addition of these two individuals as party Respondents will add nothing meaningful to this case and clearly the presence of these two individuals will not cause an enhanced award in the event it is determined that the Complainant has been discriminated against. J. B. Hunt Transport, Inc. has acknowledged liability for any award which might be made.
For each and all of these reasons, IT IS ORDERED that the Complainant's Motion to add Ed Pfenning and Kirk Thompson as additional Respondents in this matter is hereby denied.
Rudolf L. Jansen
Administrative Law Judge
