Backen v. Nuclear Management Co., LLC, 2001-ERA-25 (ALJ Sept. 18, 2001)

U.S. Department of Labor

Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue date: 18Sep2001
Case No. 2001-ERA-00025

In the Matter of

ROGER J. BACKEN,
   Complainant,

   v.

NUCLEAR MANAGEMENT COMPANY, LLC,
   Employer.

   The above-styled matter is currently pending before the undersigned. A hearing is presently scheduled in this matter for October 23, 2001, in Green Bay, Wisconsin.

   By motion dated August 28, 2001, the Employer, Nuclear Management Company, LLC, seeks an order compelling the Complainant to produce all documents responsive to the July 20, 2001, Employer's First Request for Production of Documents requests numbers 4 and 17. In a response dated September 6, 2001, the Complainant, through counsel, objects to the Employer's motion to compel.

   The Respondent's Document request number 4 seeks: "Any and all documents you prepared for, sent to, or received from the Department of Labor on or after March 12, 2001." On August 20, 2001, the Complainant responded to request number 4 with the following objection:

Objections as noted above; notwithstanding the above stated objections, all documents have been produced, except for: 1.) Notices received by Complainant from the United States Department of Labor/Administrative Law Judge that have also been provided to the Respondents; and 2.) Documents received in response to Freedom of Information Act ("FOIA") requests, which documents are equally available to the Respondent. (For the convenience of the Respondent, Complainant has produced the request letter and response letter.)

   Specifically, in Document request number 4, the Employer seeks to discover OSHA records of "employee interviews" reflecting the Complainant's statements concerning his claim to OSHA. In support of the motion to compel, the Employer has attached "Exhibit A", a letter from Melvin R. Lischefski, Area Director of OSHA, to Complainant's counsel and dated July 27, 2001. This letter indicates that the Complainant did make a FOIA request. However, the letter also demonstrates that the specific records sought by the Employer in this motion to compel were withheld from disclosure by OSHA pursuant to Exemption 7 of FOIA. Furthermore, the Complainant states in his response opposing the motion to compel that he does not have copies of the records the Employer seeks in document request number 4.

   The Employer's brief in support of the motion to compel states that the Employer made an independent FOIA request seeking these "employee interview" statements, but that that request was denied. At this time, the Employer is appealing the FOIA denial, but, due to the time such an appeal will take, avers I grant this document request to ensure completion of discovery before the hearing. I acknowledge the Employer's outstanding FOIA request and pending appeal, however, a FOIA issue is not resolved in this forum and I decline to overstep my judicial boundaries set by law. Furthermore, as the Complainant is not even in possession of the documents sought by the Employer in request number 4, the Respondent's motion to compel in respect to request number 4 is HEREBY DENIED.

   Secondly, the Employer seeks to compel all documents responsive to document request number 17. That request reads as follows:

Any and all documents relating or referring to prior discrimination claims filed by you concerning claims of discrimination, retaliation, and/or harassment, including any and all documents prepared for, sent to, or received from the Department of Labor and/or the Nuclear Regulatory Commission relating to prior discrimination claims filed by you.

   On August 20, 2001, the Complainant responded to this request with the following objection:

This request is unduly burdensome as it seeks documents which are not relevant to the claims and defenses in this litigation and is not reasonably calculated to lead to the discovery of admissible evidence. In addition, documents sought in this request are a matter of public record and are obtainable by Respondent directly from other sources.

   In support of request number 17, the Employer avers that the materials sought by this request are relevant and are calculated to lead to the discovery of admissible evidence in that they are likely to reveal the Complainant's motives for his claims of retaliation, including practice of filing complaints under the ERA as a means of personal retaliation against superiors who criticize his job performance. The Employer cites the case of Gastineau v. Fleet Mantg., Corp., 137 F.2d 490 (7th Cir. 1995), for the proposition that evidence of past lawsuits are admissible to establish the plaintiff's mental state regarding his employers. Furthermore, the Employer argues that the materials sought by this request could not be independently obtained from another source without substantial expense on the part of the Employer and likely would not be obtainable in time for the Employer to complete discovery before the October 23, 2001, hearing.

   Title 29 of the Code of Federal Regulations sets forth Rules of Practice and Procedure that are generally applicable in administrative hearings before the Office of Administrative Law Judges. See 29 C.F.R. Part 18. When those rules are "inconsistent with a rule of special application as provided by statute, executive order or regulation," the latter controls. 29 C.F.R. §18(a). The Federal Rules of Civil Procedure apply to situations not controlled by 29 C.F.R. Part 18 or the rules of special application. Id.

   Section 18.14 of the Rules of Practice and Procedure governs the scope of discovery. The test for determining whether material is discoverable is relevancy to the subject matter of the litigation. 29 C.F.R. §18.14(a). There is no requirement that the information sought be admissible at trial. 29 C.F.R. 18.14(b). Determinations on admissibility are made at trial. Id. The Rules of Practice and Procedure governing the scope of discovery are substantially the same as those of Federal Rule of Civil Procedure 26. The Supreme Court has noted that under Rule 26, district judges have ample authority to prevent abuse of the discovery process and encouraged judges to use that authority when necessary. See Herbert v. Lando, 441 U.S. 153 (1979).

   Courts have routinely permitted a very broad scope of discovery in discrimination cases. Nevertheless, the "desire to allow broad discovery is not without limits and the trial court is given wide discretion in balancing the need and the rights of both [parties]." Burks v. Oklahoma Publishing Co., 81 F.3d 975, 981 (10th Cir. 1996).

   In the instant case, the Complainant avers that document request number 17 seeks materials which are irrelevant to this proceeding. Specifically, Complainant states that the Employer has offered no basis in its discovery request for the argument the documents sought would reveal an improper motive on the part of the Complainant. Even if the Complainant had such an ulterior motive, it is irrelevant to this case. The central issue of this proceeding is the Employer's motive for the actions it took against the Complainant. So long as the Complainant reasonably believed the Employer was in violation of the law when he engaged in protected activity, any additional motive he might have had is irrelevant. See Oliver v. Hydro-Vac Services, Inc. 91-SWD-1 (Sec'y, Nov. 1, 1995); Diaz-Robainas v. Florida Power & Light Co., 92-ERA-10 (Sec'y, Jan. 10, 1996); Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y, July 26, 1995).

   I begin by noting that some of the materials sought by the Employer are a matter of public record and freely available outside of the formal discovery process. Prior final decisions and orders, orders approving settlements, etc. involving the Claimant are publically available on the Website maintained by the Office of Administrative Law Judges. To the extent the Employer seeks to compel discovery of these documents from the Complainant, the motion is HEREBY DENIED.

   Reviewing the discovery request made by the Employer in this motion, I find that the request is overbroad, unduly burdensome, and not reasonable calculated to produce relevant materials. No convincing arguments have been offered by the Employer demonstrating a likelihood that the documents sought in this request would in and of themselves be admissible at the hearing or would lead to the discovery of admissible evidence. Presumably in their request, the Employer is seeking evidence which would demonstrate a retaliatory motive by the Complainant against the Employer. I fail to see how documents relating to other employers, individuals, and incidents outside of the control of the Employer in the present case would show retaliation by the Complainant against Nuclear Management Corporation. Furthermore, I find that granting this motion would be against the public policy underlying whistleblower protection statutes which is to encourage individuals to report violations by employers.

   THEREFORE, IT IS HEREBY ORDERED that the Employer's motion to compel discovery of First Request for Documents request numbers 4 and 17 is DENIED.

       DANIEL J. ROKETENETZ
       Administrative Law Judge