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Carmicheal v. Consolidated Freightways Corp. of Delaware, 2000-STA-53 (ALJ Mar. 12, 2001)
U.S. Department of Labor | Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 | ![]() |
Case No: 2000-STA-53
In the Matter of
OTIS CARMICHAEL
Complainant
v.
CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, INC.
Respondent
BEFORE: RUDOLF L. JANSEN
Administrative Law Judge
Respondent, Consolidated Freightways Corporation of Delaware, Inc., has moved to quash the subpoenas served upon Larry Ping and Dale Oliver, and prohibit Complainant, Otis Carmichael, from calling any additional witnesses.
This matter is set for hearing on March 14, 2001. On December 8, 2000, I issued a Notice of Hearing and Pre-Hearing Order. In that notice I ordered that a pre-hearing submission be exchanged which was to include the names and addresses of each witness that the party proposed to call with a short summary of the witness' expected testimony. On February 14, 2001, Complainant requested three subpoenas for witnesses which were subsequently issued. See, 29 C.F.R. §18.24(a); Childers v. Carolina Power & Light. Co., ARB No. 98-077, ALJ No. 1997-ERA-32 (ARB Dec. 29, 2000). Complainant's pre-hearing submission included Otis Carmichael and Gary Gregory as the only two named witnesses.
On March 8, 2001, Respondent moved to quash subpoenas issued to Larry Ping and Dale Oliver, citing violation of the Pre-Hearing Order. Complainant filed a memorandum in opposition asserting that based upon Respondents March 1, 2001 disclosure of 148 pages of discovery documents that it may be necessary to call Messrs. Ping and Oliver to address certain factual issues raised in those documents.
An Administrative Law Judge's authority to issue Pre-Hearing Orders is clear. See, 29 C.F.R. §18.24(a); §18.6. Two purposes for requiring parties to comply with Pre-Hearing Orders include identifying witnesses and resolving evidentiary disputes in advance of trial, thus narrowing the issues and expediting the trial. See, Wollenburg v. Comtech Manufacturing Co., 201 F.3d 973 (7th Cir. 2000). When one party fails to comply with a Pre-Hearing Order without justifiable excuse, 29 C.F.R. §18.6(d)(2) permits the taking of such action "as is just."
In determining whether to permit the testimony of Messrs. Ping and Oliver, I must determine whether the testimony constitutes an integral part of Complainant's case. See, Graf v. Wackenhut Services LLC, 1998-ERA-37 (ALJ Feb. 18, 1999). Based upon Complainant's responsive memorandum, I find that it is possible that the testimony of Messrs. Ping and Oliver could be integral to his case. Therefore, excluding the testimony could affect the essential fairness of the hearing. See, Wollenburg, supra. An effect on the essential fairness of the hearing is one that denies the complaining party a substantial right, the party was prejudiced, and the error was not harmless. Johnson v. Picicco, 2001 WL 219665 (N.D. Ill. March 6, 2001). An error is not harmless if it affects the result of the hearing. Id; Federal Rule of Civil Procedure, Rule 61.
In view of the above, Respondent's Motion to Quash Subpoenas and to prohibit Complainant from calling Larry Ping and Dale Oliver as witnesses is hereby DENIED.
Rudolf L. Jansen
Administrative Law Judge