Date Issued: Jul 18 1990
Case No.: 90-ERA-28

In the Matter of

WILLIAM MANNING,
    Complainant

    v.

DETROIT EDISON CORPORATION
    Respondent

   A hearing in the above-captioned matter commenced before the undersigned on July 5, 1990, at Detroit, Michigan.

   At the hearing, the Complainant, by counsel, moved for order compelling the Respondent to produce certain documents and to permit the Complainant to engage in discovery of certain matters by way of deposition. The Respondent has maintained objections to the matters sought to be discovered by the Complainant which relate to an earlier discharge of the Complainant by the Respondent.

   It appears that the Complainant was previously employed by the Respondent for a period of approximately five years as a

security guard. He was terminated by the Respondent on March 20, 1989 for a rule infraction relating to the alleged misuse of a firearm. Thereafter, pursuant to a Settlement Agreement entered into by the parties on November 10, 1989, the Complainant was offered employment as a new employee, at a different location in the position of Customer Service Representative Trainee. The Complainant was subsequently terminated by the Respondent from his most recent period of employment ostensibly for his failure to complete his training program within prescribed time frames. It is the most recent termination which gave rise to the filing of the instant complaint under the Energy Reorganization Act.

    The Complainant, by counsel, seeks to discover matters pertaining to his first discharge. In essence, the Complainant contends that he was actually fired the first time because of having engaged in activities protected by the Energy Reorganization Act. Complainant further alleges that the Settlement Agreement itself was discriminatorily designed and that unless he is permitted to engage in discovery of the reasons for the first termination, he will be severly prejudiced to the extent that he will likely be unable to prove discriminatory motive in regard to his second termination.

   I ruled at the hearing that since I would not permit litigation of the Complainant's first termination, I would limit discovery into that area, since it could not reasonably lead to admissible evidence. In so ruling, I noted that public policy encourages the resolution of disputes and thus it would be offensive to that public policy to permit a settled matter to be litigated. In this regard I noted that the Complainant did not file a complaint under the Energy Reorganization Act contending that his termination as a security guard was unlawful; the Complainant was represented by counsel in settling the first termination; the Complainant signed, in addition to the Settlement Agreement, a general release of any claims against the Respondent as a consequence of his first termination; and, that the matter of his first termination, at least in terms of any remedy, is time-barred under the Energy Reorganization Act.

   The Complainant represented at the hearing that in order to prove discriminatory motive in the instant complaint, Complainant must be permitted to engage in discovery and then to litigate the propriety of the Complainant's first discharge. Complainant further argues that inability to do so would in all probability be fatal to demonstrating a prima facie case relating to his most

recent termination. In view of my ruling, the Complainant moved that this matter be certified to the Secretary of Labor on an Interlocutory Order.

   I am aware of the Secretary's recent Order Denying Requests for Review in Dept. of Labor v. State of Wisconsin, 86-UIA-2, dated May 17, 1990. Therein the Secretary noted:

    The regulations pertaining to the Rules of Practice for Administrative Hearings, 20 C.F.R. Part 18 (1989), contain no provisions for interlocutory appeals and such appeals are disfavored because they result in piecemeal consideration of cases and tend to protract the process. The Secretary has denied such appeals. See generally John A. Corder v. Bechtel Group, Inc., Case No. 88-ERA-9, Sec. Order, October 3, 1988 (denial as interlocutory of request for additional time to obtain counsel in case then before ALJ under the Energy Reorganization Act of 1974 (ERA)); Shusterman v. Ebasco Service, Inc., Case No. 87-ERA-27, Sec. Order, July 2, 1987 (denial as interlocutory request for remand to Wage and Hour Administrator while ERA case pending for hearing before ALJ).

    Accordingly, the parties' requests are DENIED as interlocutory. This ruling is without prejudice to the right of either party to seek review following final disposition by the ALJ.

   Although I agree with the Secretary on the general principals stated, I nevertheless believe that the case sub judice is appropriate for interlocutory consideration by the secretary of Labor. It seems to me that it would do little good judice is appropriate for interlocutory consideration by the secretary of Labor. It seems to me that it would do little good to compel the Complainant to litigate within the parameters defined thus far. If, after that litigation is completed, if the Complainant has been found to have not made out a prima facie case, an appeal could conceivably result in a finding of error on my part for not having permitted litigation of the Complainant's first termination. Thus, instead of one trial, the parties would be faced with two. On the other hand, if the Secretary on this Interlocutory

Appeal concurs with my ruling thus far, the Complainant would be in a posture of litigating the latter discharge alone or to withdraw his complaint for lack of proof. In either of the latter situations, the overall result would be a substantial shortening of the litigation process. Therefore, having duly considered the matter,

   It is Ordered, that this matter be, and it hereby is certified to the Secretary of Labor, to consider the Complainant's interlocutory appeal.

   It is further Ordered, that the parties within 30 days from the date of this Order file briefs with the Office of Administrative Appeals pertaining to the issues raised by this Interlocutory Appeal.

   It is further Ordered, that the formal file be transmitted herewith to the Secretary of Labor. The transcript of the proceeding will be forwarded in due course.

   It is further Ordered, that the hearing in this matter be continued pending either the Secretary's ruling on Complainant's interlocutory appeal or the Secretary's refusal to accept the appeal for consideration.

       DANIEL J. ROKETENETZ
       Administrative Law Judge