DOL Home > OALJ > Whistleblower > Irick v. Arizona Public Service Co., 95-ERA-2 (ALJ Nov. 10, 1994) |
DATE: November 10, 1994 CASE NO.: 95-ERA-2 In the Matter of GARY L. IRICK, Complainant v. ARIZONA PUBLIC SERVICE COMPANY/ ARIZONA NUCLEAR POWER PROJECT, Respondents ORDERS DENYING RESPONDENT'S MOTION FOR SUMMARY DECISION- GRANTING RESPONDENT'S MOTION FOR PRETRIAL CONFERENCE- HOLDING IN ABEYANCE RESPONDENT'S MOTIONS TO COMPEL AND FOR A CONTINUANCE This matter arises under the employee protection provision of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. §5851 (ERA). On October 27, 1994, I issued a notice setting the case for a hearing on November 15, 1994 in Phoenix, Arizona. On November 2, 1994 the Respondents filed a Motion for Summary Decision. The Respondents contend, in substance, that the complaint in this case should be denied in its entirety for the reasons that the Complainant and his representative "have subverted the statutorily-required procedure for the [initial investigation] of complaints of this nature" and because "the information that Mr. Irick has submitted in this case does not establish a prima facie case of retaliation and does not raise any genuine issue of material fact." Documentation in support of the motion was appended thereto and has been supplemented subsequently. On November 3, 1994 I issued, and had served on the Complainant's representative by telecopier, an Order directing that any response to the Respondent's Motion for Summary Decision be filed so as to reach this Office by November 8, 1994. A timely response has been received objecting to Respondent's
[PAGE 2] motion. The Supreme Court's observation in Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962) that "summary procedures should be used sparingly...where motive and intent play lead roles" has been held to be particularly applicable to proceedings arising under whistleblower statutes like the ERA. (Richter v. Baldwin Associates, 84-ERA-9-12 (Sec'y of Labor Mar. 12, 1986). Nevertheless, summary decisions have been recognized as appropriate in cases where there is no genuine issue of material fact and a party is entitled to judgement as a matter of law. See, e.g., Trieber v. Tennessee Valley Authority, et. al., 87-ERA-25 (Sec'y of Labor Sept. 9, 1993). I believe that the Complainant's response, when read in context with his appended answers to Respondent's interrogatories, adequately identify issues of material fact, regarding more contemporary, alleged, protected activity, and purported retaliation therefore, to warrant a hearing in this case. Furthermore, as there is no precedent for the Respondent's view that the complaint should be dismissed because of lack of cooperation in the investigation, I deem it prudent not to risk bifurcating this proceeding by submitting any recommendation to the Secretary on this issue at this time. Accordingly, the motion for summary decision is denied. The Respondent's have indicated that they have been hampered in their discovery efforts because of inadequate responses by the Complainant to their interrogatories and requests for production and because of the short period which will be remaining between the planned taking of depositions and the scheduled trial. They have asked that a pre-hearing conference be held on November 15, 1994 and that the formal hearing scheduled for that date be postponed. I agree that a pre-hearing conference will be useful in this case to explore the simplification of issues; the possibility of obtaining stipulations of facts and agreement as to the admission of documentary evidence; the limitation of the number of expert or other witnesses; the negotiation, compromise or settlement of any or all issues; a schedule to be followed, if necessary, for the completion of the actions decided at the conference; and such other matters as may aid in an expeditious disposition of the proceeding. Accordingly, I grant the motion for a pre-hearing conference and will commence the same at 9:00 A.M. on November 15, 1994 in lieu of convening the formal hearing at that time.
[PAGE 3] I will hold in abeyance the Respondent's motion to compel and for a continuance of the hearing to some other date pending the outcome of the interim discovery and the pre-hearing conference. I note in this regard that the parties' representatives will be meeting for the taking of depositions on November 11 and 14, 1994 and they are directed to attempt at those times to amicably resolve any remaining discovery disputes. Furthermore, in view of the statutory time constraints I am reluctant to postpone the commencement of the hearing in this matter. Hopefully, sufficient progress will be made in the next few days and during the pre-hearing conference to permit starting the hearing phase immediately thereafter. Consequently, the parties should have their respective witnesses on standby. ____________________________ JOEL R. WILLIAMS Administrative Law Judge