Melendez v. Exxon Chemicals America, 1993-ERA-6 (ALJ Sept. 2, 2003)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue Date: 02 September 2003

CASE NO.: 1993-ERA-6

IN THE MATTER OF

EDWIN A. MELENDEZ
    Complainant

    v.

EXXON CHEMICALS AMERICA
    Respondent

   This matter was tried in September and October, 1994, before Judge James Kerr. On December 7, 1995, Judge Kerr found that Exxon had not discriminated nor retaliated against Melendez. Judge Kerr further found that even if Exxon had a dual motive, Exxon would have taken the same disciplinary approach with reference to Melendez or any other employee engaged in insubordinate conduct.

   On July 14, 2000, the Administrative Review Board issued a plurality decision remanding the case. The Board found that Judge Kerr had incorrectly precluded Melendez from introducing evidence that may relate to Melendez's concerns about Exxon's compliance with the record keeping requirements of the TSCA and with general compliance with the CAA. Specifically, Judge Kerr's exclusion of evidence relating to what he viewed solely as OSHA matters prevented Melendez from introducing evidence that may be material to Melendez' claim that Exxon engaged in unlawful discrimination under the environmental statutes.

   Exxon appealed the remand order to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit dismissed the appeal for lack of jurisdiction. By letter dated October 8, 2002, the case was returned to OALJ for further action. As Judge Kerr is no longer with OALJ, I was assigned the case.

   The case was set for hearing on February 3, 2003. The Court ordered the parties to participate in a status conference on November 14, 2002. The issue before the Court, as directed by the ARB, was to determine what evidence had been improperly excluded by Judge Kerr on the ground that it was solely an OSHA matter. By agreement of the parties and as ordered by the Court, no later than December 16, 2002, Melendez was to present a proffer of proposed evidence concerning the alleged activities he engaged in that qualify for protection under the CAA and the TSCA. For each proffer of proposed evidence, Melendez was to identify the portion of the transcript where Judge Kerr had previously excluded this evidence. Melendez was to also identify any witnesses and documents that support each allegation of protected activity and include a summary of the proposed witnesses' expected testimony.

   At various times over the next six months, the Court extended the time for Melendez to file his proffer. By Order dated June 11, 2003, the Court extended the deadline to June 30, 2003, noting that no further postponement would be granted. The Court received the proffer, with a cover letter dated June 30, 2003, on July 7, 2003. On July 31, 2003, Exxon filed Objections to Complainant's Proffer and Motion to Strike. In Exxon's opinion, the proffer was late, indecipherable and noncompliant with the ARB's and this Court's orders regarding the remand.

   While the Court was in general agreement with Exxon's opinion that the proffer was late, indecipherable and noncompliant with the ARB's and this Court's orders regarding the remand, the Court found that some of the allegations in the proffer might be within the scope of the ARB's remand. However, because the proffer did not contain a summary of the proposed witnesses' expected testimony, the Court ordered that no later than August 25, 2003, Melendez shall submit a list of his proposed witnesses with a summary of their expected testimony. Melendez has again failed to provide the information as ordered.

   It has been nearly ten months since Melendez was ordered to identify what evidence had been improperly excluded by Judge Kerr. Despite having been granted repeated opportunities to identify the improperly excluded evidence, Melendez has failed to do so. This failure to identify the improperly excluded evidence, along with the fact that Melendez did not assert this exclusion of evidence as error in his previous appeal to the ARB, indicates to the Court that there is no such evidence. Accordingly, the Court hereby closes the record.

   I have reviewed the record that was presented to Judge Kerr and the Recommended Decision and Order Dismissing Claim Judge Kerr rendered based on that record. I find the Recommend Decision and Order Dismissing Claim to be an accurate statement of the facts and the law as applied to this complaint. Accordingly, I hereby adopt Judge Kerr's December 7, 1995 Recommend Decision and Order Dismissing Claim as my own and I recommend that the Secretary enter the following order:

   It is therefore ORDERED, ADJUDGED and DECREED that the complaint of Complainant, Edwin A. Melendez, is in all things DISMISSED.

      LARRY W. PRICE
      Administrative Law Judge

LWP:kw

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.7(d) and 24.8.