U.S. Department of Labor Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Boston, Massachusetts 02109
Room 507
(617) 223-9355
(617) 223-4254 (FAX)
Date: September 1, 1998
Case Nos.: 98-SWD-3
In the Matter of:
Beverly M. Migliore Complainant
v.
Rhode Island Department of
Environmental Management
Respondent
ORDER GRANTING IN PART RESPONDENT'S MOTION
FOR A PROTECTIVE ORDER
and
ORDER GRANTING RESPONDENT'S MOTION TO CANCEL DEPOSITION
By document filed August 25, 1998, the Respondent submitted a Motion
for a Protective Order and Motion to Cancel the Deposition of Andrew McLeod, the Director of
RIDEM. In support of the former, the Respondent sought a protective order limiting the
questions for twelve intended deponents to "the issues in this case," which
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Respondent contends is a one day suspension in 1998, and a time period extending back only to
August 1996, the time at which RIDEM underwent a reorganization. The Respondent seeks the
Protective Order in part on its contention that the Complainant has failed to work cooperatively
and expeditiously with the Respondent to resolve the disagreement over the scope of
Complainant's written discovery requests.
The Complainant opposed the Respondent's Motion, stating that she has
indeed attempted to work with the Respondent in resolving the discovery issues. She opposes
the Motion for a Protective Order, arguing that the Respondent has failed to specifically identify
the written discovery to which it objects. The Complainant maintains that Respondent
effectively seeks a declaratory judgment or partial dismissal of certain acts of discrimination
alleged in the complaint.
In her May 8, 1998 complaint as filed with the Occupational Safety and
Health Administration, Complainant, who has had the responsibility of implementing and
enforcing the federal Resource and Conservation and Recovery Act as a RIDEM employee since
1986, alleged that she was subjected to a pattern of retaliatory treatment at work beginning in
August 1996 and culminating in her suspension from duty on April 13, 1998. (see Complaint,
paras. 22-26) From the allegations as levied in the complaint, it is plain that the alleged
protected activity in which the Complainant engaged occurred over the course of her twelve year
employment and were specified as various events in 1996 through 1998 (paras. 13-18), an event
in 1994 (para. 20a), the six year period 1990-1996 (para. 20b), and an event in 1990. (para. 19)
Although the language of the applicable whistleblower statute does not
provide a time limit regarding protected activity, proceedings under this statute are governed by
the Proceedings for Handling Discrimination Complaints, 29 C.F.R. Part 24 (1998), as
supplemented by the Office of Administrative Law Judges' Rules of Practice. 29 C.F.R. Part 18.
The former provide that although formal rules of evidence shall not apply, rules or principles
designed to assure production of the most probative evidence available shall be applied. The
administrative law judge may exclude evidence which is immaterial, irrelevant, or unduly
repetitious. 29 C.F.R. 24.6(e).
This Judge, having reviewed the allegations of the complaint and the
parties' respective arguments, hereby determines that the Respondent's Motion should be
GRANTED IN PART. In the discovery context, which shall continue within these
parameters, the Complainant shall be allowed to explore those alleged instances of protected
activity in which she engaged on or after August 1, 1995. This in no way hinders the
Complainant's case; rather, it strikes the appropriate balance between her right to discovery and
the Respondent's right to have discovery curtailed to reasonable limits. Any instances of
protected activity in which the Complainant allegedly engaged prior to that point are simply far
too temporally remote and would merely be unduly cumulative.
In regards to the Respondent's Motion to Cancel the Deposition of Director
Andrew McLeod, Respondent argues that the Director, who began his employment with RIDEM
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in September 1997, is a high government official who should not be subject to deposition
without a showing of cause and an inability to gather the information sought through other
means. His involvement, the Respondent maintains, is only as the Director of RIDEM and he
was not responsible in any way but a supervisory role for the one day suspension. the
Complainant generally argued that she "believed" otherwise.
Based on the pleadings thus far, the Complainant has not shown the
necessity of deposing Director McLeod and the Respondent's Motion to Cancel his Deposition is
GRANTED. If subsequent discovery discloses that Director McLeod was an active
participant in the allegedly discriminatory conduct, then the Complainant may seek permission
from this Judge to depose the Director. Any such request should be made, if at all, at least ten
(10) days prior to the hearing date.
