United States Department of Labor
Office of Administrative Law Judges Law Library

NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES, AND WAS LAST REVISED IN NOVEMBER, 1996.

Return to Table of Topics, 503 Index

If an individual does not file a complaint with OFCCP, OFCCP may not pursue a remedy on behalf of the individual, but may use evidence that the person was discriminated against to demonstrate the propensity of a contractor to violate its affirmative action duties. OFCCP v. Commonwealth Aluminum, 82-OFC-6, ALJ Rec. Dec. and Order, June 26, 1986, slip op. at 7, 16, rev'd, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, at 9; remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996). pending, Assistant Secretary for Employment Standards.

OFCCP Rules of Practice specifically govern the use of depositions at trial, and therefore, supersede the Federal Rules of Civil Procedure on this issue. Id. at 11; rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

A deposition could not be introduced into evidence because the Government did not show that any of the four instances concerning the introduction of depositions into evidence under 41 CFR 60-30.11(e) (3) applied to this case. Id. ; rev'd on other grounds, Assistant Secretary for Employment Standards Final Decision and Order, February 10, 1994, remanded sub. nom., Commonwealth Aluminum Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).

The Assistant Secretary declined to accept as part of the record certain scientific evidence which the OFCCP attached to its exceptions but had not submitted to the ALJ during trial. OFCCP v. Texas Industries Inc., 80-OFCCP-28, Assistant Secretary for Employment Standards Dec. and Order, June 7, 1988, slip op. at 4, remanded on other grounds, Assistant Secretary for Employment Standards Order of Remand and Stay of Enforcement, September 27, 1990, ALJ Decision and Order on Remand, March 11, 1991; remanded on other grounds, Assistant Secretary for Employment Standards Decision and Order of Remand, January 27, 1995, Consent Decree, June 21, 1996.

ALJ denies OFCCP's motion to admit into evidence the medical report of a deceased physician containing his opinion regarding complainant's ability to perform the job in question on the grounds that the report constitutes hearsay and does not fall within a recognized exception at FRE 803. Texas Eastern Transmission Corp., 88-OFC-30, ALJ Order, June 11, 1990, slip op. at 1; ALJ Rec. Dec. and Order of Dismissal, April 30, 1991, stipulated dismissal, June 19, 1991.

In determining that report of deceased physician should not be admitted in evidence, ALJ interprets the standards of admissability set forth in 41 CFR 60-30.18 (1990) as substantially the same as the standards imposed under FRE, even though the regulation provides that formal rules of evidence do not apply in Section 503 administrative proceedings. Id. at 2.

ALJ denies OFCCP's motion to admit into evidence report of deceased physician on the grounds that the report constitutes unsworn statements of a declarant who cannot be subject to cross-examination and, thus, lack sufficient indicia of reliability to be considered probative. Id. at 2-3.

A defendant's failure to produce evidence on an issue of jurisdiction such as coverage may be held to constitute an admission that jurisdiction lies. OFCCP v. Rowan Companies, Inc., 89-OFC-41, ALJ Rec. Dec. and Order on Remand, January 4, 1993, slip op. at 6; remanded on other grounds, Assistant Secretary for Employment Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand, March 11, 1996; pending, Administrative Review Board.

Contractor's admission that it rejected complainant because of his handicap obviates the need for OFCCP to commence discovery to prove that contractor knew about the handicap and considered it as part of its decision-making process. However, the admission does not foreclose the presentation of evidence by contractor documenting other factors which it considered in deciding to reject the complainant. OFCCP v. USAir, Inc., 91-OFC-2, ALJ Order Denying Motion To Reconsider and Motion to Limit, February 24, 1993, slip op. at 4-5, Consent Decree, September 7, 1993.

The fact that NASA may have had a policy forever prohibiting former substance abusers from becoming astronauts is of little relevance to whether contractor is permitted to permanently bar former substance abusers from over 1800 different jobs. OFCCP v. Exxon Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 5, n.8; affirmed on other grounds, Administrative Review Board Final Decision and Order, October 28, 1996.

FAA studies regarding its policy of returning recovering alcoholic pilots into the work place are relevant in determining the risk of relapse of a recovering alcoholic because the FAA policy appears to be the only industry-wide program of its kind. Id. at 20; affirmed, Administrative Review Board Final Decision and Order, October 28, 1996, at 16-17.

The content of a letter attached to the defendant's exceptions to the Administrative Law Judge Decision and Order containing agency opinions similar to the defendant's legal argument, while not part of the record reviewed by the ALJ, is on the basis of the record, and therefore properly considered by the Assistant Secretary. Yellow Freight, Assistant Secretary Order Denying Motion to Strike, September 18, 1995, at 2; Consent Decree, February 29, 1996.

Evidence regarding complainant's physical condition after the time he was placed on disability pension is not relevant as it did not form the basis for defendant's action regarding the complainant. OFCCP v. American Telephone and Telegraph Company (AT&T), 92-OFC-5, ALJ Order Denying Defendant's Motion for Summary Judgment and Granting in part Defendant's Motion in Limine, April 23, 1995, at 9.

The ALJ overruled plaintiff's objection to the admissibility of documentary evidence provided by the U.S. Air Force. While questioning the relevancy of the documentation and the radial keratotomy policy of the United States Air Force, the ALJ was not inclined to exclude this evidence because he had required the parties to stipulate to the admissibility of most of the documentary evidence reserving arguments as to relevancy and materiality to the briefs if appropriate. OFCCP v. United Airlines, Inc., 94-OFC-1, ALJ Order, December 14, 1995, at 4.

The ALJ denied plaintiff's motion to strike certain portions of deposition testimony on relevancy grounds, because plaintiff's counsel failed to raise these objections when the depositions were taken. Id. at 4.

Defendant's contention that the complainant is not entitled to relief because of "after acquired evidence" consisting of omissions on his application, is a remedial issue to be addressed on remand. OFCCP v. Yellow Freight System, Inc., 84-OFC-17, Acting Assistant Secretary for Employment Standards, Reconsideration of Final Decision and Order of Remand, December 22, 1993, at 9-10 and n.4.; Order Approving Settlement and Dismissal, April 20, 1994.