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Tipton v. Indiana Michigan Power Co., 2002-ERA-30 (ALJ Nov. 10, 2003)
U.S. Department of Labor | Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 |
Issue Date: 10 November 2003 Case No: 2002-ERA-00030
In the Matter of:
KENNETH J. TIPTON
Complainant
v.
INDIANA MICHIGAN POWER CO.
Respondent
This matter is before the Court on Respondent's Motion to Exclude Complainant's Exhibit 47, the deposition of Mark Stark, and Respondent's Motion to Admit Respondent's Exhibit 16, a letter from the Nuclear Regulatory Commission (NRC).
COMPLAINANT'S EXHIBIT 47
During cross-examination of Mr. Stark by Claimant, his deposition was referenced a number of times to impeach his testimony. At the close of the evidence, Claimant moved to enter the entire deposition and Respondent objected. Complainant argues that the deposition should be admitted because it is probative evidence of the issues, it contains the testimony of the Respondent's agent and because it was cited throughout the course of Mr. Stark's testimony.
Respondent cites Federal Rules of Evidence §801 which provides that a testifying witness' deposition is generally not admissible as hearsay. See, also 29 C.F.R. §18.801. The Respondent acknowledges that any portion of Mr. Stark's deposition with which he was con-fronted during his testimony at the hearing, should be admitted. (Brief for Indiana Michigan Power Co. at FN 1, Tipton v. IMPC, 2002-ERA-30, August 15, 2003). The Respondent refutes Claimant's argument that at the time of his deposition Mr. Stark was a duly authorized agent of Indiana Michigan Power Co., authorized to testify on its behalf.
RESPONDENT'S EXHIBIT 16
Respondent's Exhibit 16 is a letter from the Nuclear Regulatory Commission (NRC) to Respondent dated December 6, 2002, summarizing the results of the investigation into allega-tions made by the Complainant. The Complainant objects to the admissibility of this evidence due to relevance.
The Respondent asserts Exhibit 16 is relevant and admissible under well-established Department of Labor precedent as a NRC investigative report. (Respondent's Brief at 5.) The Complainant contends that the original findings of the investigation are not relevant to whether the employee was retaliated against while acting under protective activity and carry no weight before the ALJ or the Board and therefore should be excluded. (Complainant's Brief at 7.)
Claimant relies on the provisions of § 18.23(a)(3) to support the argument that Mr. Stark's deposition should be admitted in its entirety. The regulation provides, in part:
(a) Generally. At the hearing, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposi-tion or who had due notice thereof in accordance with any one of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness�
(3) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or duly author-ized agent of a public or private corporation, partner-ship, or association which is a party, may be used by any other party for any purpose�
According to the Complainant, Mr. Stark qualifies as a "dually authorized agent" under (3) above because he was the major factor behind the investigation and termination of the Complainant. (Brief for Kenneth H, Tipton at 2, Tipton v. IMPC, 2002-ERA-30, August 15, 2003). As a supervisor for approximately 50 employees in the Maintenance Department, Mr. Stark was the functional manager for the activities from September 18 through September 26, 2001. Id. at 3. He was present for multiple interviews of employees and directed his subordi-nates to submit statements explaining the events of September 25 and 26, 2001. Id. Mr. Stark was the only corporate representative of Indiana Michigan Power Company for each of the seven days of trial. Id. at 2.
The phrase "duly authorized agent" is not defined in 29 C.F.R. § 18, and there is no regulatory history explaining the meaning of the phrase. See 48 Fed. Reg. 32,538 (July 15, 1983). The plain text meaning of the phrase "duly authorized agent" purports to refer to an employee authorized to testify on behalf of the corporation. The justification for the rule is that the deposition of such a duly authorized agent will be in unity with the views of the corporation. Respondent refutes the proposition that Mr. Stark is a duly authorized agent, arguing that, at the time of his deposition, Mr. Stark was not authorized to testify on its behalf.
The issue of admissibility of a deposition used to impeach a witness is governed by § 18.23(a)(5) which states:
If only part of a deposition is offered in evidence by a party, any other party may require him or her to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.
However, under these facts, the Respondent has not sought to introduce any other relevant parts and therefore, the Complainant is precluded from introducing the rest of the deposition under this section. Id. The ubiquitous nature of the Administrative Procedure Act governs applications of the rules of evidence. Section 5 USC § 556(d) provides that "any oral or documentary evidence may be received, but the agency as a matter of public policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence� A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross examina-tion as may be required for a full and true disclosure of the facts." Moreover, an Administrative Law Judge has discretion to admit or reject evidence. Second Taxing District of City of Norwalk v. Federal Energy Regulatory Commission, 683 F.2d 477, 485 (D.C. Cir. 1982).
This court has held in a previous motion:
. . . formal evidentiary rules in administrative hearings are not strictly applied. If evidence appears to possess probative value, I will allow it to enter the record. See, e.g. Fugate v. Tennessee Valley Authority, 93-ERA-0009 (Sec'y Sept. 6, 1995). Furthermore, 29 C.F.R. § 24.6(E) � the regulation applicable to administrative hearing procedures under the Energy Reorganization Act provides that formal rules of evidence do not apply, but rather, rules of principles designed to assure production of the most probative evidence available shall apply.
Order Granting in Part and Denying in Part Pre-Hearing Motions to Exclude, Tipton v. IMPC, 2002-ERA-30, July 11, 2003.
Although it is not clear that Mark Stark was a duly authorized agent of Respondent, he had numerous contacts with the Complainant, his deposition appears to possess probative value, he attended the hearing as the representative of Respondent, and the deposition was used by Complainant at the hearing to impeach Mr. Stark's testimony. I will therefore exercise my dis-cretion in favor of allowing the deposition into evidence, subject to objections as to relevance and materiality of various sections referred to by the parties.
Turning to Respondent's Exhibit 16, Complainant objects to the admissibility of this evidence due to relevance. In Ashcraft v. Univ. of Cincinnati, the Secretary ruled that a Nuclear Regulatory Commission Notice of Violation letter was inadmissible because it has no relevance on whether the Complainant was retaliated against for filing a complaint. Ashcraft v. Univ. of Cincinnati, 83-ERA-7 (Sec'y Nov. 1, 1988). To prevail under a Department of Labor employee protection suit, the Court held that an employee need not file an independent environmental protection action. Id. The intent behind whistleblower protection laws is to protect employees from retaliation when engaging in protected activities such as the filing of complaints. See, e.g., 118 Cong. Reg. 10,766-68 (1972), reprinted in Legislative History of the Water Pollution Con-trol Act Amendments of 1972, at 655. The purpose of the whistleblower acts is not to only protect those whose complaints are meritorious but to protect all those who engage in protected activities. Ashcraft, 83-ERA-7. Consequently, the Court in Ashcraft held that a Nuclear Regu-latory Commission Notice of Violation letter was inadmissible because it had no relevance to whether the Complainant was retaliated against for filing a complaint. Id. Alternatively, Respondent relies on the ruling in Creekmore v. ABB Power Sys. Energy Servs., Inc., where the Secretary held the NRC investigative report was admissible as a relevant public document of a Federal agency. 93-ERA-24 at 4 (Dep. Sec'y Feb. 14, 1996); 29 C.F.R. 18.803(a)(8). The Court in Creekmore relied on the hearsay exception for public records and stated that it would take notice of the NRC report in reliance on Mosbaugh v. Georgia Power Co. 91-ERA-1 at 6 (Sec'y Nov. 20, 1995). The Mosbaugh Court admitted the NRC report under the public records exception; however, the report was not relied on by the Court as probative evidence. Id. Finally, in Ross v. Florida Power & Light Co., the NRC investigative report con-cerning Complainant's allegation of discrimination was allowed as a factual finding reached by a government agency as a result of an investigation. Ross v. Florida Power & Light Co., 96-ERA-36 at 7 (ALJ Dec. 3, 1977), aff'd (ARB Mar. 31, 1999).
The Respondent contends that Exhibit 16 is similar to the NRC investigative reports of Creekmore and Ross. (Respondent's Brief at 6, FN 8). I find that the letter at issue in the instant case is similar to those letters discussed supra but note that the investigative findings carry no weight as to whether the employee was falsely terminated while acting under protected activity. Therefore, the NRC letter identified as Respondent's Exhibit 16, will be admitted in accordance with ERA precedent and under 29 C.F.R. 18.803(a)(8)(iii).
For the above mentioned reasons, the Motion to Exclude Claimant's Exhibit 47 is hereby DENIED and Motion to Admit Respondent's Exhibit 16 is GRANTED. Claimant's Exhibit 47 and Respondent's Exhibit 16 will be ADMITTTED to the extent that portions of it are relevant to the issues in the case and consistent with the Federal Rules of Evidence.
In unison, I ORDER that the time for filing post-hearing briefs and reply briefs is hereby extended until November 17 and December 2, 2003, respectively.
JOSEPH E. KANE
Administrative Law Judge