CASE NO.: 93-CAA-9

In the Matter of:

LENARD TRIMMER
    Complainant

v.

LOS ALAMOS NATIONAL LABORATORY:

and

UNIVERSITY OF CALIFORNIA

    Respondents

    Per the Prehearing Order Number One issued June 6, 1993, following a telephone conference call between the undersigned and counsel for the parties and with their agreed approval, the following prehearing procedural schedule was ordered:

1.Discovery would be concluded on August 13, 1993.

2.The exchange of the names of witnessess and the proposed exhibits would be completed by September 10, 1993, and

3.Prehearing statements would be filed by September 20, 1993.

   On September 10, 1993, Respondent filed a Motion for Summary Decision grounded upon Complainant's failure to file his complaint timely. On September 13, 1993, an Order was served by facsimile transmission for Complainant to file his response by September 22, 1993. On September 15, 1993, Complainant requested that the time to file his prehearing brief be enlarged by two days to coincide with the filing of his response to the motion for summary decision, due to the substantial overlap of the issues involved. On counsel's representation that Respondents' counsel was out of the office and would not return until September 20, 1993, and because of the essence of time and the limited amount of time requested, the request was granted.

    On September 14, 1993, this Office received a copy of Complainants letter and accompanying witness list and exhibit list. The exhibit list specifies a total of 63 "potential"

exhibits, the first one being designated as "Bates stamped documents 1 through 1310 previously provided by Complainant." The remaining 62 references are to various documents including "Administrative Manual: 100 series, 300 series and, 707, 729, CX-3; financial records of Mr. Trimmer relevant to document his lost wages and other monetary damage (still being obtained), CX-7; all documents necessary to rebut any evidence submitted by witnesses for the respondents, including adverse witnesses which may be called in complainant's case-in-chief, CX-9; depositions (or excerpts from the deposition) of the witnesses deposed for this case, CX-10; and "Managing the Whistleblowing Employee," 8 The Labor Lawyer 19 (1992), CX-52; to name a few. As stated in Complainant's counsel's cover letter accompanying this exchange, none of the documents were exchanged or provided with identifying references.

   On September 17, 1993, counsel for Complainant, via "letter to the undersigned, informed that Complainant had, within the last 30 days, received a ''Notice of Proposed Medical Termination," a new discriminatory act directly related to this prehearing proceeding, and that a second complaint was being filed with the Wage and Hour Division with a request that it "expeditiously" certify the claim to the Office of Administrative Law Judges, and attached a copy of the notice. It appears that Complainant received this notice, dated August 20, 1993, as early as August 26, 1993, a month prior to counsel's notification of the possibility of supplementing this complaint.

   On September 20, 1993, Respondents filed a Motion to Bar Complainant From Introducing Exhibits at Hearing Or, in the Alternative to Compel Complainant to Comply With Prehearing Order Number One.

   As this matter is scheduled for hearing to begin October 4, 1993, it is imperative that the parties comply fully with the prehearing schedule to allow sufficient time for preparation. As to Respondents' motion, any failure to comply by Complainant at this point must be so prejudicial as to prevent Respondents' counsel from being able to adequately prepare its reponse/defenses to this complaint, i.e., such that would constitute a denial of due process. Because of Complainant's counsel's reference in his letter of September 11, 1993, accompanying his witness list and exhibit list, that Respondents already have virtually all of the potential exhibits, and his repeated assertions during the conference call of September 20, 1993, that Respondents produced most of the documents during

discovery proceedings and were familiar with them, I am not inclined to rule at this juncture that Respondents have been fatally prejudiced and will not grant, at this time, its motion to bar Complainant from submitting any documentary evidence at the hearing.

   Complainants list of potential exhibits does not constitute compliance with the prehearing order to exchange proposed exhibits paginated, the purpose of which is to prevent Respondent from having to guess what documentary evidence Complainant may submit and therefore prepare to respond to every possible document, regardless of its relevance. This is even more so in this matter as Respondents' counsel informed that approximately 2000 pages of documentary evidence were produced for Complainant during discovery. Based upon the potential exhibit list, it is presumed that without selecting out his specific documents, this tribunal will become a dumping ground for Complainant to deposit any and all documents he chooses and rely upon the trier of fact to sort such out for the best interest of Complainant. For a number of reasons, including the necessity for the administrative law judge's impartiality, such will not be permitted. Accordingly,

   IT IS ORDERED that Complainant submit (1) his prehearing brief and (2) response to Respondents' Motion for Summary Decision by the close of business on September 22, 1993. Complainant shall serve such documents on Respondent so as to insure their receipt at Respondent's counsel's office by the next working day.

   IT IS FURTHER ORDERED that Complainant submit its proposed exhibits to Respondent on or before the close of business on Friday, September 24, 1993. Each such exhibit shall be separately identified and paginated, and, should any proposed exhibit exceed two pages, that specific portion of the exibit to be relied upon shall be highlighted. No two or more unrelated documents shall be combined into one proposed exhibit. Such designation, identification and pagination requirement shall apply equally to Respondent.

   With respect to personnel or administrative manuals, or other publications proposed to be submitted, the parties shall either exchange copies of the relevant sections, or sufficiently identify the relevant section(s) by specifying the date that appears on top or bottom of the page, the revision, and the section and subsection numbers. Failure to submit the proposed exhibits as required herein shall constitute grounds for refusal to receive such documentary evidence if offered at the hearing.

    Additionally, Complainant shall today, September 21, 1993, return, so as to be received during normal working hours tomorrow, Respondents' exhibits to counsel for Respondents for compliance with this Order.

   A ruling on Respondents' Motion to Bar Documentary Evidence will be issued as soon as is reasonably possible after receipt of Complainant's response. In the event Respondent deems it necessary to request leave to file a reply statement, such request may be made by telephone conference call, and shall be made forthwith.

   A ruling on the supplementing of the complaint based on Complainant's termination for medical reasons will also be issued after the parties have briefed the issue. Complainant's motion and supporting memorandum, if filed, shall be due in this Office and Respondent's counsel's office by 5:00 p.m. (Eastern Daylight Saving Time) on Wednesday, September 22, 1993. Respondents' reponse shall be due in this Office and Complainant's counsel's office by 5:00 p.m. (Eastern Daylight Saving Time) on Tuesday, September 28, 1993. Service by facsimile transmission will be permitted.

At Washington, D.C.
Entered: September 21, 1993

       JAMES GUILL
       Administrative Law Judge

JG/jlr