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ALJ FILES EMOTIONAL DISTRESS LAWSUIT AGAINST OSHRC, DOL

Posted: April 2, 2001
An Administrative Law Judge (ALJ) with the Occupational Safety and Health Review Commission (OSHRC) is seeking $500,000 in damages, claiming the Department of Labor (DOL) and OSHRC employees intentionally inflicted emotional distress on him.

An Administrative Law Judge (ALJ) with the Occupational Safety and Health Review Commission (OSHRC) is seeking $500,000 in damages, claiming the Department of Labor (DOL) and OSHRC employees intentionally inflicted emotional distress on him.

In his March 12 lawsuit, filed in the U.S. State District Court for the Northern District of Texas, Stanley Schwartz, ALJ for over twenty years, says for more than the last year and a half both DOL and OSHRC have "intentionally inflicted emotional distress" on him. Schwartz uses a June 28, 1999 e-mail from Brian Pudenz, DOL counsel for OSHA litigation in Dallas, that was sent to attorneys and management of the Dallas office as evidence. It said, "Please let me know of all cases where Judge Schwartz is requiring you to read your OSHA settlement into the record. Dan Mick [an OSHA counsel in Washington, DC] has asked me to collect information related to this and other issues. Please bring me the file and I will discuss with you what items I may need from the file. Also be sure that I see every order that Judge Schwartz issues that seems in any way out of the ordinary. He is creating some very unusual orders and they need to be considered carefully."

Schwartz said his case is "not about being overly sensitive concerning a widely circulated e-mail that is both factually incorrect and totally inappropriate," but rather about the emotional distress he was subjected to.

The ALJ believes a study submitted to the new OSHRC chairwoman Thomasina Rogers in May 1999, asking her to reopen the Dallas office of OSHRC triggered "the pattern of outrageous conduct in the spring and summer of 1999…"

When the Dallas office was closed in 1996, Schwartz unsuccessfully contested the move. He argues that three OSHRC employees, namely Stuart Weisberg, OSHRC chairman at the time, William Gainer, the Executive Director and Irving Sommer, OSHRC's Chief Judge, were instrumental in the closing of the office, all of which "were in position of authority and/or present during the critical time of spring and summer of 1999."

When Schwartz asked Rogers to investigate the June 28 e-mail and "whether there was any communication between Commission management and the DOL before the e-mail was authorized by DOL's Office of the Solicitor." Rogers referred the request to DOL's Inspector General who notified Schwartz that it would not open an investigation.

The ALJ claims in his lawsuit that after the e-mail was circulated he was not assigned cases in Texas although "ALJ's "shall be assigned to cases in rotation so far as practicable," according to the Administrative Procedure Act.

Schwartz says that on June 25, 1999, three days prior to the date on which the e-mail was sent, the Denver office from which he operates, received nine Texas cases of which he was assigned four.

In the six months after the e-mail was sent Schwartz was assigned a total of five Texas case out of 90 cases received in the Denver office. After raising the issue the ALJ was assigned 12 out of the next 40 Texas cases. Schwartz claims that he was taken of the Texas rotation and asserts this happened as part of an effort to inflict emotional distress on him, claiming that the Commission's Chief Judge "intentionally and recklessly did not assign [Texas] cases" to him.

Furthermore, Schwartz claims that while three other OSHRC employees who relocated from Dallas to Denver in 1998, the same year in which he relocated, were immediately reimbursed for their relocation costs while Schwartz was not.

Spokespersons for DOL could not be reached for comment at press time. A spokesperson for OSHRC said the Commision's policy is to refrain from comments on pending litigation.

Inside OSHA - 04/02/2001, Vol. 8, No. 7