Holland v. Stage Call Corp., 2002-STA-14 (ALJ May 22, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue date: 22May2002

Case No: 2002-STA-0014

In the Matter of

JIMMY C. HOLLAND
    Complainant

    v.

STAGE CALL CORPORATION
    Respondent

BEFORE: RUDOLF L. JANSEN
    Administrative Law Judge

   This action arises under the Surface Transportation Assistance Act of 1982 (hereinafter STAA), as amended, 49 U.S.C. Section 31105 and the Regulations found at 29 C.F.R. Part 1978.

The case was tried on the merits on April 17, 2002 in Phoenix, Arizona. At that time, Respondent moved for the admission into evidence of the Affidavit of a Rodney Cavins. Complainant objected to the admission of the Affidavit and I withheld ruling pending further consideration of the matter.

   The regulations for STAA cases at 29 C.F.R. Part 1978, specifically adopt the procedural rules found at 29 C.F.R. Part 18. 29 C.F.R. § 1978.100(b). Twenty-nine C.F.R. § 18.402 provides:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, pursuant to executive order, by these rules, or by other rules or regulations prescribed by the administrative agency pursuant to statutory authority. Evidence which is not relevant is not admissible.

   An Administrative Law Judge should not refuse to admit evidence on a technical basis but should consider factors relevant to the reliability and probative value of contested evidence in determining the weight to be accorded such evidence. See Caimano v. Brink's Inc., 1995-STA-4 (Sec'y Jan. 26, 1996); Fugate v. Tennessee Valley Authority, Case No. 93-ERA-0009, Sec. Dec., Sept. 6, 1995, slip op. at 3-4 (citing Builders Steel Co. v. Commissioner of Internal Rev., 179 F.2d 377 (8th Cir. 1950); see also 29 C.F.R. §§ 24.5(e)(1), 1978.106.

   The affidavit of Rodney Cavins purports to provide information regarding Complainant's behavior towards Respondent's customer, Entertainment Lighting Services. As Complainant's behavior is cited as one reason for his termination, I find this evidence to be relevant in testing the reliability and probative value of other evidence included in the record. Mr. Cavins was unavailable to testify at the hearing, but I believe his statement under oath is probative. Therefore, Complainant's objection is overruled and I hereby receive the Affidavit into evidence as Respondent's Exhibit 1 (RX 1).

   In the event Complainant desires to submit evidence responsive to the Affidavit, that request accompanied by a statement of the evidence sought, should be made to me within ten days from the date of this Order.

      Rudolf L. Jansen
      Administrative Law Judge