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Cefalu v. Roadway Express, Inc., 2003-STA-55 (ALJ Dec. 16, 2003)
U.S. Department of Labor | Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 |
In the Matter of:
PETER P. CEFALU,
Complainant
v.
ROADWAY EXPRESS, INC.,
Respondent
The above-captioned case is scheduled for hearing on January 27, 2004. On December 8, 2003, Complainant submitted a Motion to Compel Discovery and Strike Objections. According to Complainant, interrogatories were served on Respondent on October 17, 2003. On November 19, 2003, Respondent provided its responses to the interrogatories, which included an objection to Interrogatory No. 6. The question involved identifying all persons who provided information considered in deciding to discharge Complainant. Respondent provided some of the information sought, but refused to identify a "confidential source." The two parties resolved the remaining discovery disputes, but could not agree with regards to the identification of the confidential source. Thus, Complainant filed his Motion to Compel.
Complainant asserts that he will establish a prima facie case, requiring the Respondent to articulate a legitimate, non-discriminatory reason for the adverse action. Assuming such a showing, Complainant is seeking evidence to demonstrate that the Respondent's articulated reasons are a pretext for discrimination. To that end, Complainant wishes to depose Respondent's confidential source, and avers that the information sought "is calculated to lead to information proving pretext and/or mixed motives." (Complainant's Motion, at 5).
On December 11, 2003, the Respondent filed a response opposing Complainant's motion, as well as a Motion for a Protective Order. Respondent stated that it objected to naming the confidential source on the grounds of confidentiality and relevance. Respondent alleges that it promised to keep the identity secret, and by revealing the source's identity, its corporate integrity is at stake, the source may discontinue providing information to the company, and the source may be subject to potential retaliation. Respondent cited Management Information Technologies, Inc., v. Alyeska Pipeline Service Co., 151 F.R.D. 478 (D.D.C. 1993), in support of its claim that courts have balanced the parties' respective interests and found that confidential
sources need not be identified, particularly when there is a concern about potential retaliation. (Respondent's Response, at 5).
Additionally, Respondent argues that the source's name is not relevant, because the Complainant was fired after an investigation, and Respondent has provided the names of two other individuals who can confirm the information provided by the confidential source. Moreover, Respondent expressed a willingness to reveal the timing of discussions between its agent and the confidential source. Thus, Respondent seeks a Protective Order to protect it from further discovery by Complainant.
The regulations governing this proceeding provide that parties "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter." 29 C.F.R. § 18.14(a). Moreover, information is discoverable if it "appears reasonably calculated to lead to the discovery of admissible evidence." 29 C.F.R. § 18.14(b).
The rules provide for broad discovery. After reviewing the parties' submissions, I find the information sought to be relevant, and thus, discoverable. However, even if the information is not relevant, it may reasonably lead to the discovery of admissible evidence. The Respondent has not alleged any recognized privilege that would protect the source's identify from discovery. Likewise, Respondent has provided no support for its claim of potential retaliation by Complainant. Furthermore, in Alyeska, the Court sought to protect the confidential sources from retaliation by the defendant-corporation, and the larger industrial community. Those same concerns do not exist in the present matter.
In his brief, Complainant requested relief in the form of a decision by default in favor of Complainant if Respondent fails to reply to his discovery requests. This request is premature, and thus, is not addressed at this time.
Therefore, IT IS HEREBY ORDERED that Complainant's Motion to Compel Discovery and Strike Objections is GRANTED. Respondent's Motion for Protective Order is DENIED. IT IS FURTHER ORDERED that Respondent must provide the information sought to Complainant by Friday, December 19, 2003.
DANIEL L. LELAND
Administrative Law Judge