Case No. 98-ERA-23
File No. 06-0030-98-804

Date: July 24, 1998

IN THE MATTER OF:

Larry D. Smyth,
    Complainant

v.

Johnson Controls World, Inc.,
Respondent

   On July 20, 1998, the Complainant submitted his Pre-Hearing report in the above-captioned matter. Whether or not the Respondent was served a copy of this Report is not evident from the face of the document. Accordingly, this Office forwards a copy of the Report to Respondent at this time. Complainant is again advised that he must send a copy of any filings to the Respondent and that he must affirmatively indicate that he has done so.

   Complainant is further advised that he should attempt to obtain an attorney to represent him in this complex litigation. He can do so by contacting his state or local bas association.

   This Judge now turns to the substantive concern regarding Complainant's Pre-Hearing Report. Complainant indicated that he would not be calling any witnesses on his behalf because all are presently employed by the Respondent and the Complainant does not want to jeopardize their employment and livelihood or put them through the treatment that he himself has received. He attached a number of documents to his Pre-Hearing Report, including, but not limited to, an August 4, 1997 document entitled "Interview Notes" and a June 4, 1997 document entitled "'In Confidence.'" Both of these are signed by Mr. Bill VanGundy, a plumber employed by the Respondent, with the affirmation that "[t]he foregoing is true and accurate to the best of my knowledge." This Judge expresses serious concerns about whether or not the Complainant should be allowed to submit these affidavits as evidence.

   The use of deposition testimony in a whistleblower proceeding is generally looked upon with disfavor and is discouraged in all but "extraordinary situations" or where there is an "exigent need." Carter v. Electrical Dist. No. 2 of Pinal County, 92-TSC-11 (Sec'y 07/26/95); Mansour v. Oncology Services Corp., 94-ERA-41 (ALJ 11/23/94). The Secretary has stressed that the importance of live testimony before an administrative law judge is for the judge to render credibility determinations and has held that credibility determinations made about testimony given by deposition was suspect since the judge was not present during the rendering of the testimony. Carter, supra at n. 3. An administrative law judge has, however, permitted the parties to agree on either a deposition or affidavit in lieu of live testimony where the evidence sought was in the nature of non-controversial background information. See Mansour, supra. The Administrative Review Board has permitted telephonic testimony in lieu of in-person testimony where the witness was critically ill at the time of hearing even though a pre-hearing deposition had not been conducted. Seater v. Southern Cali. Edison Co., 95-ERA-13 (ARB 09/27/96). The Board reasoned that such telephonic testimony provided more opportunity for observation of the witness than does a deposition in lieu of such testimony. It may be noted that the Board declined to address the respondent's argument to exclude the written statement of the witness because it construed the writing as serving the purpose of a discovery document. Id. at n. 18.

   In English v. General Elec. Co., 85-ERA-02 (Sec'y 02/13/92), the Secretary excluded an affidavit written and offered into evidence by the complainant. The procedural posture of the case was such that a complete hearing had been held by the Office of Administrative Law Judges, the case went on appeal and was eventually remanded on one specific issue. The presiding judge determined that it would be adequate to supplement the record by deposition testimony rather than to reconvene a hearing. The complainant objected to being deposed and refused to submit to a deposition. She subsequently attempted to have her testimony admitted in affidavit form. The Secretary, who approved the judge's discretionary act of not reconvening a hearing, refused to admit or consider the complainant's affidavit because to

do so would deprive the respondent of its right to cross examine. Although there was no discussion in the English case of an extraordinary situation or exigent need standard, it would be logical for the Board to apply a standard at least this strict to the proposal of an affidavit as evidence.

   Although Complainant may have a genuine concern for the employment and livelihood of any potential witnesses, it is plain that the ERA would be available to protect any witness should he or she feel harassed, intimidated or discriminated against based on his or her testimony in this matter. See 42 U.S.C. §5851(A)(1)(D-E); 29 C.F.R. 24.2. Accordingly, there is a complete absence of demonstrated need for accepting testimony in this manner and this Judge anticipates a problem with the attempted use of affidavits in this manner.

   The deadline for filing of Pre-Hearing Reports has been set at August 24, 1998. Complainant may amend his Pre-Hearing Report once he has considered the aforementioned legal precedent and/or retained legal counsel to assist him in his presentation of his case.

       DAVID W. DI NARDI
       Administrative Law Judge

Boston, Massachusetts
DWD:jw