DATE: November 23, 1994
CASE NO.: 94-ERA-41

In the Matter of:

SAYED MANSOUR,
   Complainant

    v.

ONCOLOGY SERVICES CORP.,
   Respondent

   This will confirm the rulings made during the telephone conference on November 22, 1994.

   The request of counsel just retained by Complainant to continue the hearing for approximately three months to enable him to prepare the case, is granted. Therefore, the hearing scheduled for November 30, 1994 is canceled. In seeking this continuance, Complainant's counsel stated that he was waiving the statutory and regulatory time-frames applicable to this case.

   The parties shall conduct discovery expeditiously. By January 5, 1995, the parties shall report, preferably by joint agreement, on when they will be ready for trial. They shall also give the dates they will not be available for trial during the two-month period from the date they will be ready for the hearing. Unless the parties agree otherwise, the hearing will be held in New York City.

   I stated during the telephone conference that, in the absence of agreement by the parties or a specific ruling in advance of the hearing, witnesses would not be allowed to testify by deposition in lieu of testimony at the hearing. The parties should be able to agree on either a deposition or affidavit in lieu of testimony at the hearing, where the evidence sought is in the nature of non-controversial background information. On the other hand, absent an exigent need (such as the physical inability of a witness to attend a hearing), or the parties, agreement, or

my ruling that the testimony truly is noncontroversial and credibility is not an issue, testimony shall be presented at the hearing. That is where I can observe demeanor and ask my own questions where necessary.

   The Department of Labor has been unable to find the envelope disclosing the postmark of Complainant's letter of complaint to DOL, which bears the typed date of May 16, 1994, or any other proof of the date the letter was sent.¹ During a telephone conference on November 16, 1994, before he was represented by counsel, Complainant stated he had a receipt for the mailing of his complaint, and would try to find it. During the November 22, 1994 telephone conference, I directed his new counsel to file a copy of the receipt. If a receipt cannot be found, Complainant shall state the means by which the letter was sent, and whether inquiries to the private company or U.S. Postal Service for proof of the date it was sent have been made, since it was sent by a method which enabled Complainant to have a receipt at the time.

      LAWRENCE BRENNER
      Administrative Law Judge

1475

¹I suggest that Counsel for the Department of Labor bring this egregious circumstance to the attention of the appropriate officials at DOL so that it never recurs. The deadlines for whistleblower case complaints are important, and the retention in DOL's case file of the envelope with the postmark proof of mailing would have solved the problem in this case. Regrettably, there is no requirement in the regulation (29 C.F.R. § 24.3) that a complaint filed by mail be sent by certified mail. Such a requirement would be a useful amendment.