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Case No: 2000-STA-53
In the Matter of
OTIS CARMICHAEL
Complainant
v.
CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE, INC.
Respondent
BEFORE: RUDOLF L. JANSEN
Administrative Law Judge
ORDER DENYING MOTION TO STRIKE
On June 26, 2001, Consolidated Freightways Corporation of Delaware, Inc. renewed it's Motion to Strike Complainant's allegation that he was unlawfully discriminated against for being sick. Complainant Otis Carmichael responded with a memorandum in opposition.
Respondent asserts that during the hearing of this case that Complainant had introduced new claims regarding retaliation for having taken sick leave in 1997 and 1998. Twenty-nine C.F.R. Section 18.5(e) permits amendment of a complaint to include newly raised issues in a proceeding. See also, Federal Rule of Civil Procedure 15. However, for purposes of this case, Complainant has not moved to amend or supplement his complaint. No new claims have been raised. Complainant concedes in his written response to the motion that he has not raised any new claims, stating "The only claim by which Complainant Carmichael seeks reinstatement and backpay is founded on the fact that CF discharged Mr. Carmichael for taking fatigue breaks en route on April 23, 1998, May 1, 1998, and September 22, 1998 (JX-22, JX-23, and JX-26)." As there are no new claims asserted, there are no new claims to strike. Thus, Respondent's Motion to Strike as it relates to new claims is hereby DENIED.
Respondent further asserts that any evidence relating to actions taken with respect to sick leave should be stricken entirely from the record. The requirements for an employee to prove a prima facie case of a section 405 violation involve proof of three elements: (1) that the employee's employment engages him or her in protected activity; (2) that his or her employer took adverse employment action against him or her; and (3) that a "causal link" exists between his or her protected activity and the employer's adverse action. Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987). Complainant asserts that he is using the evidence of alleged retaliation for sick leave to establish a pattern of behavior by Respondent. Evidence of
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action taken with respect to the sick leave is relevant and admissible if it "shed[s] light on the true character of matters occurring within the limitations period." Local Lodge 1424 IAM v. NLRB, 362 U.S. 411, 80 S.Ct. 822 (1960); NLRB v. Oberle-Jordre Co., 777 F.2d 1119 (6th Cir. 1985); Yellow Freight System, Inc. v. Robert B. Reich, Sec'y of Labor and Willie W. Smith, 27 F.3d 1133(1993). Evidence tending to establish a pattern of retaliation is relevant where it is offered to establish a "causal link" between the protected activity and the adverse employment action. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973); Bell v. E.P.A., 232 F.3d 546 (7th Cir. 2000). As it relates to the exclusion of any evidence concerning retaliation for having taken sick leave, the Motion to Strike is also DENIED. Any evidence of record pertaining to adverse employment actions allegedly taken in response to sick leave claims, will be considered only from a historical standpoint in establishing causal links between protected activities and alleged adverse actions in the asserted claims.
Respondent also moves to vacate the current post-trial briefing schedule. In light of the foregoing discussion and its potential effect upon briefs, the briefing schedule is hereby amended to allow the parties to respond to the original briefs already filed. The responses will be due by July 25, 2001.
