Jottings By An Employer's Lawyer

Monday, March 17, 2008

But I Didn't Stay a Word -- Case Still Dismissed

Now that major filings in two FLSA collective actions were made on successive Fridays, and SXSW has finally rolled out of town, maybe posting can return on a semi-regular basis.

And what better place to start with a reminder of why this job is never dull.

In an administrative proceeding under the whistle-blower provision of the Energy Reorganization Act, James F. Newport was appearing pro se. On a March 1, 2006 conference call, in response to complaints by counsel representing the respondent, the Administrative Law Judge "learned that Newport had threatened witnesses and counsel. He ordered Newport, who was pro se, not to threaten anyone again, and Newport agreed to refrain from doing so."

Three weeks later at the hearing, on the third day of testimony:

Newport encountered Manny Misas, an FPL employee and witness at the hearing, in a hallway of the courthouse. The ALJ was told that Newport gestured toward Misas by drawing his finger across his own throat as if slashing Misas's throat.

And Newport conceded that he did, but that the gesture was misunderstood.

Following a renewed motion for sanction after the close of the hearing, the ALJ dismissed Newport's claim, finding it a direct violation of his order and an "exemplary basis for the sanction of dismissal. "

In Newport v. Florida Power & Light Co., ARB No. 06-110, ALJ No. 2005-ERA-24 (ARB Feb. 29, 2008), the Administrative Review Board agreed.

For those of us who have dealt with pro se plaintiffs over the years, Newport's other grounds for challenge to the dismissal at the ARB will sound all too familiar. He was "was denied due process, prejudiced by the unethical conduct of opposing counsel, and denied his right to free speech."

And while the result is also familiar, dismissal affirmed, there is no getting around the problems (and expense) that can be caused when a plaintiff either chooses or can not find counsel to represent them.

Of course, not all pro se representations turn out so bad, just look at today's headline: Mills Awarded $48.6M From McCartney.

Update: Just to prove the point no sooner than I had posted, I read this from a pro se plaintiff's complaint against a law firm that he alleged conspired with his former employer in keeping him from filing a discrimination claim. According to him:

Defendants abused their position of attorneys and held back the agreed-upon settlement to coerce plaintiff to sign the agreement, causing plaintiff to defraud his own self. Plaintiff signed the agreement and returned it, as this proves that the fraud reached its full fruition or justifiable reliance, damaging plaintiff even further.

See Morgan Lewis Faces Fraud Claim in Employment Case in today's 360 Employment Law ($). Yep, yet another get him to "defraud his own self" case!


I am James Newport, the wrongly decided case Newport v FPL is under a motion for reconsideration and will be subject to an appeal. The first amendment protects non-threathening gestures and speech. Attorney's biased against the working class who must proceed pro se is another good reason for the seperation of powers. ie officers of the court should never be permitted to be in the legislative or executive branch of government in a voting position.
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