Date: October 1, 1996

Case No.: 96-ERA-26

In the Matter of:

ULRICH WITTE,
    Complainant,

    v.

NEW YORK POWER AUTHORITY,
    Respondent.

    On September 18, 1996, this Office received Respondent's Motion in Limine, objecting to several of Complainant's expected witnesses. Due to the time constraints imposed by the approaching date for the commencement of the hearing, I ordered Complainant to submit any response to Respondent's motion by the close of business on Friday, September 27, 1996. Complainant s response was timely received.

    Respondent objects to several of Complainant's proposed witnesses because they are expected to testify about technical matters relating to Respondent's facilities and because they have no personal knowledge of Complainant's performance while employed by Respondent. Respondent also objects to potential witnesses expected to testify as to Complainant's work performance with prior employers. Respondent seeks to exclude this testimony as irrelevant.

Complainant contends that this proffered testimony is relevant to an whistleblower complaint under the Energy Reorganization Act (ERA), as amended, 42 U.S.C. § 5851 (1994).

    In Timmons v. Mattingly Testing Services, 95-ERA-40 (Sec'y June 21, 1996), the Secretary held that "a complete understanding of the testimony of the witnesses, including testimony regarding technical procedures, is necessary for the drawing of pertinent inferences" concerning an employer's retaliatory animus (slip op. 13). Applying this principle, the Secretary found that the administrative law judge erred in not admitting testimony relating to the technical aspects of the safety issues involved. Thus, Respondent's argument that such testimony is irrelevant because the Act does not require that a complainant prove that a violation of a federal safety law occurred is not persuasive. Although that is true, see Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 18, 1993)(slip op. 11, n.6), such testimony is still relevant for the drawing of inferences relating to an employer's motives. Accordingly, Complainant is entitled to present such testimony. Similarly, if an employer offers evidence suggesting that a complainant's poor work performance or interpersonal problems were the justification for any adverse action, evidence tending to establish that the individual did not have such troubles prior to the alleged discrimination would be relevant in establishing an employer's pretext. Hence, Complainant's proffer of such witnesses is acceptable.

    Twenty-nine C.F.R. § 24.5(e) provides that an "administrative law judge may exclude evidence which is immaterial, irrelevant, or unduly repetitious." Complainant offers four expert witnesses to testify about the technical aspects relating to Complainant's alleged protected activity with Respondent. Complainant also offers seven witnesses to testify about his work performance with previous employers. Because it appears that this number of witnesses would provide cumulative and unduly repetitious testimony, Complainant must demonstrate why this many witnesses are necessary and how the testimony would not be "unduly repetitious." 29 C.F.R. § 24.5(e).

    Accordingly, Respondent's motion in limine is DENIED, and Complainant is ORDERED to show cause why the testimony of all of the aforementioned witnesses is necessary.

SO ORDERED.

JOHN M. VITTONE

Chief Administrative Law Judge

JMV/cy