8-1901-11335-2

MN OSH Division Docket No. 5178

OSHI ID No. S1941 053-94

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY

 

Gary W. Bastian, Commissioner,

Department of Labor and Industry, State of Minnesota,

                   Complainant,

v.

J & L Schwieters, Construction, Inc.,

                   Respondent.

 

 

ORDER DENYING MOTION

TO DISMISS

            The above-entitled matter is pending before the undersigned administrative law judge pursuant to a Notice of and Order for Prehearing Conference and Notice to Employees dated September 10, 1997, and a Complaint and a Summons and Notice to Respondent dated February 11, 1997.

            Nancy J. Leppink and Susan C. Gretz, Assistant Attorneys General, 525 Park Street, Suite 200, St. Paul,  MN  55103-2106 have appeared on behalf of the complainant.  Gregg J. Cavanagh, Leonard, Street and Deinard, Attorneys at Law, 150 South Fifth Street, Suite 2300, Minneapolis,  MN 55402, has appeared on behalf of respondent.

On October 2, 1997, respondent filed a Motion to Dismiss the complaint in this case on the grounds that it was not timely served under Minn. Stat. § 182.661, subd. 6 and on the grounds that the delay in issuing the complaint was prejudicial to respondent.  On October 16, 1997 the complainant filed his Memorandum in Opposition to Respondent’s Motion to Dismiss arguing that the time limit for issuing a complaint in Minn. Stat. § 182.661, subd. 6 is not jurisdictional and that the respondent has not suffered any prejudice as a result of complainant’s delay in issuing his Complaint.

Neither party requested oral argument and respondent did not request an opportunity to reply to complainant’s objections to its motion.  For purposes of respondent’s motion, therefore, the record closed on October 27, 1997.

            Based upon all of the files, records and proceedings herein, and for the reasons set forth in the accompanying Memorandum,

IT IS HEREBY ORDERED:  that the respondent’s Motion to Dismiss should be and it hereby is DENIED.

 

Dated this 3rd day of November, 1997

 

                                                                             

 

JON L. LUNDE

Administrative Law Judge

 

MEMORANDUM

I.

 

            The facts relevant to respondent’s motion are not in dispute.  On September 28 and 29, 1994 an occupational safety and health (OSH) inspection of respondent’s work site was made in response to a serious injury sustained by one of the respondent’s employees.  Subsequently, on February 28, 1995, citations and penalty notices were timely served on respondent.  On March 20,  1995, respondent timely filed a notice of contest challenging the citations and penalties.

            On June 5, 1995, complainant’s attorney, Helen Rubenstein, and Roger Bastyr, an agency staff member, met with respondent’s attorneys and other representatives in an informal conference to discuss the citations.  The parties were unable to settle the matter at that time, but respondent agreed to submit a settlement proposal and some of its training documents to Rubenstein by June 12, 1995 -- seven days before the complaint was due to be served under the pertinent statute.

 

            Rubenstein didn’t receive the settlement proposal or the training documents by June 12.  On July 13, she telephoned Cavanagh and left a message reminding him that he was to provide her with those documents.  Cavanagh did not respond, and on July 17 Rubenstein wrote to him about the matter.  On July 23, 1995, Cavanagh wrote to Rubenstein advising her that no settlement proposal would be made at that time.  He also told her that the training documents complainant had requested were ready for inspection.  In August, Carrie Darmody, a paralegal for complainant, reviewed the training documents at Cavanagh’s office and asked for copies of some of them.  They were mailed about August 16, 1995.

 

            Rubenstein did not serve a complaint by the June 19, 1995 deadline because she was expecting a settlement proposal from the respondent.  She did not have an explanation for failing to serve a complaint after July 23 when she was advised that respondent didn’t intend to make a settlement offer.  After July 23, no settlement negotiations were being conducted and, in January 1996, Rubenstein transferred out of the attorney general’s labor division and this matter was reassigned to Leppink.  Leppink took no immediate action to serve a complaint.  During a 30-day period from June to July 1996, Leppink was on a detail in Washington D.C.  Later, in November, Leppink was on maternity leave.  When she began maternity leave this matter was reassigned to Gretz and Leppink instructed Darmody to review the file to determine the complainant’s settlement options and discovery needs.  When Darmody realized that no complaint had been filed, Gretz was informed, and on February 11, 1997, the complaint was served.  Respondent timely served its answer to the complaint.

II.

Respondent’s Motion to Dismiss is based, in part, on Minn. Stat. § 182.661, subd. 6 (1994) which states:

 

The Commissioner shall serve a complaint on all the parties no later than 90 calendar days after receiving a notice of contest. . . .

 

This statutory provision is repeated in Minn. R. 5210.0570, subp. 1 (1994).  Respondent argues that dismissal is appropriate because it was not served within the 90-day time limit in the statute and because it was prejudiced by the delay.

            Complainant argues that the 90-day deadline for serving a complaint under the statute is not a jurisdictional deadline because motions to dismiss late-filed complaints are discretionary with the administrative law judge (ALJ) under Minn. R. 5210.0570, subp. 5 (1996 Supp. No. 2), which states:

 

If the complaint is not served or the answer is not filed and served within the time [90 days] prescribed by this part, the administrative law judge, upon a motion by a party, may enter an order affirming or vacating the contested citation and notification of penalty or notification of failure to abate.

 

            The commissioner apparently concluded that the 90-day deadline for serving a complaint is not jurisdictional but only directory.[1]  When a statute does not declare the consequences for failure to comply with a temporal requirement it is generally held to be directory not mandatory[2].  No penalty is specified for noncompliance with the time limit for serving complaints.  In contrast, the legislature has said that when an employer fails to file a timely notice of contest, the citations and penalties, as proposed, “shall be deemed a final order of the commissioner and not subject to review by any court or agency.”  Minn. Stat. § 182.661, subd. 1 (1994).

            The federal Occupational Safety and Health Act also does not contain a deadline for filing complaints.  However, the federal review commission’s rule -- 29 C.F.R. § 2200.34 (1996) -- states that the secretary of labor -- “shall file a complaint with the commission no later than 20 days after receipt of the notice of contest.”  Another rule -- 29 C.F.R. § 2200.41 -- states that the secretary “may” be declared to be in default for failing to file a timely complaint.  Hence, default is not automatic, and the federal review commission as well as federal ALJs have discretion in determining whether a complaint should be stricken or the secretary should be defaulted.

 

            Because dismissal of a late-filed complaint is discretionary under Minn. R. 5210.0570, subp. 5, the ALJ must decide if dismissal is appropriate on some other ground; the ALJ cannot decide if the rule is valid (i.e., consistent with Minn. Stat. § 182.661, subd. 6 (1994)).  Respondent argues that it was prejudiced by Complainant’s tardy service of the complaint and that there are, therefore, other grounds for dismissal.  On the other hand, complainant argues, citing federal precedents and prior ALJ decisions in Minnesota, that dismissal is inappropriate in this proceeding because respondent was not prejudiced by the delay and complainant has not engaged in any contumacious conduct.

 

            The federal review commission has held, in effect, that noncompliance with its procedural rules generally should not result in dismissal because the policy of the law is to hear disputes on their merits[3].  Therefore, it has held that a late-filed complaint generally should not be dismissed unless the employer was prejudiced by the delay or the agency engaged in contumacious conduct.  Asarco, Inc., Hughes Tool Co., 1980 OSHD 24,838 (Rev. Comm. 1980).  See also, Secretary v. Piping of Ohio, Inc., 16 OSH Cas. (BNA) 1236, 1993-1995 OSHD ¶ 30,028 (Rev. Comm. 1993), aff’d, 25 F.3d 1049 (6th Cir.), cert. den. 513 U.S. 1016 (1994).

            The contumacious conduct which may result in dismissal is conduct which evinces contempt for orderly proceedings and the hearing process.  In TRG Drilling Corp (Mid-Continent Division), 1982 OSHD ¶ 25,837 (Rev. Comm. 1981), the federal commission dismissed a complaint which was 29 days late because the agency made no request to extend the service deadline, failed to explain the reason for the delay, and failed to respond to the employer’s motion to dismiss the complaint as untimely.  Complainant has not engaged in contumacious conduct.  Its failure to file a timely complaint or request an extension of the service date was inadvertent.  Although its reasons for the delay are weak, and short of excusable neglect, the delays appear to have resulted from changes in counsel rather than a knowing disregard of statutory requirements.  Therefore, the sole issue that must yet be decided is whether respondent was prejudiced by the delay.

 

            In its motion to dismiss, respondent argued that it was prejudiced by complainant’s delay because several employees, including the job site supervisor, have left respondent’s employment.  Because no complaint was served in a timely fashion, respondent argued that it didn’t interview those employees and it alleges that their whereabouts are presently unknown.  Respondent avers that the delay “has made it difficult if not impossible” to interview those witnesses and obtain evidence from them.  Because its ability to defend allegedly has been impaired, respondent argues that dismissal is appropriate.

            In July 1997, Darmody reviewed a district court file which involved a civil suit filed by Kyle Shufelt against Kraus-Anderson and Northwest Minnesota Multi-County H.R.A.  That lawsuit involved Shufelt’s fall from the roof of a building at the respondent’s work site in Crookston, Minnesota.  It precipitated the OSHA inspection of the work site subsequently undertaken by complainant.  Darmody Affidavit ¶4.  During her review of the file, Darmody discovered that depositions were taken of at least five of the respondent’s employees:  Terry Ostrom, Tom Corbett, Jeff Homich, Peter Kulzer, and Kyle Shufelt.  Those depositions are available for purchase.  Id at 6 and 7.  Darmody also obtained the addresses and telephone numbers of three of those employees -- Corbett, Ostrom and Homich -- and she also located an individual who knows Peter Kulzer, who apparently worked for the respondent as a safety coordinator.  Respondent did not provide the names of those individuals who allegedly no longer work for it or the efforts, if any, it undertook to locate those individuals.  Also, respondent has not shown that the testimony of these witnesses is essential to its defense or whether the same testimony could be obtained from other witnesses still employed by the respondent.

            In American Plasticraft Company, 1981 OSHD ¶25,507 (1981), a federal ALJ denied the secretary’s motion to file a complaint 235 days late.  The secretary argued that late filing was excusable because the matter had been misfiled.  The judge found, however, that the employee would have been substantially prejudiced and its ability to prepare an adequate defense impaired if the secretary’s motion were granted because documents prepared in anticipation of litigation were no longer available and could not be reconstructed, witnesses were no longer known, and the physical condition of the inspection site had been substantially modified in an effort to abate the allegedly unsafe conditions.  The respondent has failed to show those kinds of prejudice in support of its motion.

            Although the reasons for filing delays are considered, most reasons are accepted if there is no showing of prejudice.  Jensen Construction Co., of Oklahoma, Inc. v. OSHRC (Marshall), 1979 OSHD ¶23, 514, 597 F.2d 246-47 (10th Cir. 1979) (28-day delay allowed due to extraordinary caseload); Rollins Outdoor Advertising Inc., 5 O.S.H.C. (BNA) 1041, 1977-1978 OSHD ¶ 21, 551 (Rev. Comm. 1977) (14-day delay allowed due to understaffing of secretarial personnel).  Prior decisions under the Minnesota OSH act are consistent with these federal precedents.  Commissioner v. Richard Knutson, Inc., OAH Docket No. 4-1901-8136-2 (August 27, 1993) (seven-month delay allowed due to lost file); Bastien v. Fagen, Inc., OAH Docket No. 1-1901-10449-2 (April 12, 1996) (two-month delay allowed due to miscommunication between agency and the attorney general).

            General assertions of prejudice are insufficient to establish prejudice.  Asarco, Inc., Hughes Tool Co., supra at p. 30,620.  The respondent’s generalized assertions of prejudice should, therefore, be rejected.  As the delay in filing a complaint becomes progressively longer, the burden of establishing prejudice probably diminishes, and, at some point, prejudice may be presumed.  In this case, however, the employer’s evidence of prejudice was wholly inconclusive and unpersuasive.  Consequently, its motion should be denied and the complaint accepted.

J.L.L.


[1]   Provisions defining the time and mode in which public officers must discharge their duties and which are clearly designed merely to secure order, uniformity, system, in dispatch and public business are generally deemed directory.  See, e.g., Wenger v. Wenger, 200 Minn. 436 274 N.W. 517 (1937).

[2]   See, e.g., Matter of Eigenheer, 453 N.W.2d 349, 353 (Minn. Ct. App. 1990).

[3]  The policy in this state is the same.  Keefe v. Cargill, Inc., 393 N.W.2d 425, 427(Minn. Ct. App. 1986) (dismissal a harsh remedy that should not be granted lightly).  See also, Housing and Redevelopment Authority of St. Paul v. Kotlar 352 N.W.2d 497, 499 (Minn. Ct. App. 1984), quoting Firoved v. General Motors Corp., 152 N.W.2d 364, 368-69 (Minn. 1967).