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: November 10, 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 COMPLAINANT'S
MOTION TO COMPEL DISCOVERY
This Order addresses several issues raised by Complainant's Motion to Compel
filed in the above-captioned matter. I shall, prior to discussing the substantive issues raised in this
Motion, briefly summarize the lengthy and contentious pre-hearing history of this claim.
Beverly M. Migliore (Complainant) has had the responsibility of
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implementing and enforcing the Federal Resource and Conservation Act as a RIDEM employee
since 1986. On May 8, 1998, Complaint filed a complaint with the Occupational Safety and Health
Administration (OSHA) alleging a violation of Section 7001(a) of the Solid Waste Disposal Act (42
U.S.C. 6971). Specifically, Complainant alleges 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)
By document dated June 17, 1998, OSHA dismissed the claim, and on June
22, 1998, Complainant timely filed a request for hearing with the Office of Administrative Law
Judges (OALJ). Subsequently, the case was docketed in the Boston office of the OALJ and a
hearing was set for August 24, 1998. Shortly thereafter, this Judge postponed the hearing at the
request of Complainant who had a change of counsel. The hearing was rescheduled, and remains
scheduled, for the week of December 14, 1998.
Following the Second Notice of Hearing, the parties have brought a number
of motions in regards to discovery and procedural issues. On September 1, 1998, this Judge issued
an Order Granting In Part Respondent's Motion for a Protective Order, which limited the relevant
time frame for discovery in this matter to alleged protected activities occurring on or after August
1, 1995. Additionally, on October 14, 1998, I granted Respondent's Motion to Compel Complainant
to comply with a discovery request. At that time, I reminded the parties of the relevant rules of
practice and standards for discovery. Nevertheless, I am again faced with resolving yet another
discovery issue.
On August 11, 1998, Complainant served upon Respondent, by facsimile, a
Request for Interrogatories and a Request for the Production of Documents. On September 10, 1998,
Respondent replied, stating both general and specific objections to the requested discovery.
Complainant alleges that Respondent's objections are invalid, and on October 13, 1998, filed a
Motion to Compel Discovery.
By document dated October 21, 1998, Respondent filed an Objection to
Complainant's Motion to Compel Discovery, setting forth arguments against the requested
disclosures and discovery. Concurrently, Respondent filed a second response to Complainant's
request for interrogatories and request for the production of documents. Accordingly, this Judge
ordered the Complainant to either withdraw or amend her motion to compel.
By document filed November 3, 1998, Complainant filed an Amended Motion
to Compel which addressed Respondent's general arguments in addition to challenging discovery
disputes in regard to seven (7) interrogatories and four (4) document requests. By two documents
filed November 6, 1998, Respondent has submitted its oppositions to the motion to compel.
Respondent restates its general objections and also provides specific grounds for refusing to comply
with Complainant's requests.
DISCUSSION
As noted in prior Orders, proceedings under this statute are governed by the
Proceedings for Handling Discrimination Complaints, 29 C.F.R. Part 24 (1998), as supplemented
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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). The OALJ's Rules of Practice are clear in providing the appropriate methods of discovery,
relevant time for responses and sanctions for failure to comply. 29 C.F.R. 18.13-18.22;
18.6. These rules are neither complicated nor unique to the OALJ and are easily susceptible
to application by attorneys at law.
Furthermore, I will again note the case of Kreuzfeld A.G. v.
Carnehammar, 138 F.R.D. 594, 607 n.3 (D.C. Fl. 1991), which states "it should be a
rare occasion when the court is called upon to resolve" discovery disputes. The Administrative
Review Board has noted that, as a practical matter, parties are encouraged to make a good faith
attempt to resolve discovery disputes without the intervention of an Administrative Law Judge.
Tracanna v. Arctic Slope Inspection Service, 97-WPC-1 (ARB Nov. 6, 1997). The
parties should continue to bear this precept in mind as they continue on their discovery course.
In regards to the remainder of discovery, this Judge has been generally guided
by the Administrative Review Board's decisions in the matters of Timmons v. Mattingly Test
Services, 95-ERA-40 (ARB June 21, 1996), and Seaterv. Southern Calif.
Edison Co., 95-ERA-13 (ARB Sept. 27, 1996). In Timmons, the Administrative
Review Board began its review of the Administrative Law Judge's recommended decision by
summarizing principles concerning the evaluation of evidence of retaliatory intent in cases arising
under the Energy Reorganization Act, a similar so-called whistleblower statute. SeeTimmons, at p. 5. See Also Seater, at pp. 3-6.
In the context of whistleblower litigation, fair adjudication of the complaint
requires full presentation of a broad range of evidence that may prove, or disprove, retaliatory
animus and its contribution to the adverse action taken. Timmons,at p. 5.
Accordingly, 29 C.F.R. Part 24.5(e)(1) provides that "formal rules of evidence shall
not apply, but 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." Applying this standard, it has been held that
evidence as to deliberate violations of relevant regulations suggest antagonism toward the regulatory
scheme and thus may provide support for an inference of retaliatory intent; that evidence of the past
practice of the respondent in similar situations is relevant to determining whether there has been
disparate treatment, which may provide highly probative evidence of retaliatory intent; and that an
Administrative Law Judge erred in refusing to admit on relevancy grounds two NRC investigative
reports that were proffered by complainant because these reports were pertinent to the question of
retaliatory animus among respondent's managers as these reports documented knowing, deliberate
violations of NRC regulations by respondent's management. Timmons, at pp. 6-7.
It is clear from the aforementioned regulation and precedent that in
determining whether to admit evidence at hearing over an objection of relevance, an Administrative
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Law Judge should apply a broad scope of relevance. It logically follows that the scope of discovery
is even broader. SeeMulligan v. Vermont Yankee Nuclear Power Corp., 92-ERA-20 (Administrative Law Judge 4/17/92).
That said, I shall now address the Respondent's general and specific objections
and the contested requests at issue.
General Objections
Respondent's first general objection concerns the service of the discovery
requests by facsimile. Respondent argues that service by facsimile is an improper method for
serving discovery requests, and that even if it were proper, Complaint still exceeded the page
limitation mandated by the regulations. Accordingly, Respondent argues that despite its compliance
with a majority of the request, it need not comply. Complaint, on the other hand, argues that service
was proper, and that the specific rules relating to filing by facsimile refer to filings with the Office
of Administrative Law Judges, and not other parties.
The Office of Administrative Law Judges' Rule of Procedure provide:
"Service of any documents upon any party may be made by personal delivery or by mailing
a copy to the last known address." 29 C.F.R. §18.3(b). Further, 29 C.F.R.
§18.3(f) states that service by facsimile may be permitted by an administrative law judge, and
in such situations the parties should limit facsimile filing to twelve (12) pages or less.
I conclude that both the Complainant's First Set of Interrogatories, and
Complaint's First Request for Production of Documents were properly served upon Respondent. The
filing instructions contained in 29 C.F.R. §18.3(b) state that a party "may" file by
personal delivery of mail, but do not require those two methods. Rather, I conclude that service by
facsimile is proper in this situation, especially in this modern age. I also note that the rules relating
to service by facsimile upon the Office of Administrative Law Judges serve to promote convenience
for all parties. For instance, the recommended twelve (12) page limit serves to prevent one party,
or case, from monopolizing an OALJ facsimile machine. I recognize that the filings by Complainant
well exceed twelve (12) pages, and may very well have been a nuisance to Respondent.
Nevertheless, I find and conclude that the service is proper. I would recommend that in the future,
however, the parties be more respectful in the amount of pages sent by facsimile to each other and
this Court.
Respondent next argues that several requests violate this Courts protective
Order. In this Judge's September 1, 1998 Order, I stated that "Complainant shall be allowed
to explore those alleged instances of protected activity in which she engaged on or after August 1,
1995." Respondent notes that many of the contested requests seek documents and information
occurring prior to August 1, 1995. Complainant, on the other hand, notes that the order only applies
to "instance of protected activity" occurring after the proscribed date, and argues that
she should be permitted to obtain "certain comparative information prior to 1995," to
aid in her case.
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I hereby reject Complainant's argument. The plain language of my September
1, 1998 Protective Order was clear, and Respondent when responding to Complainant's discovery
requests, need only provide information on and after August 1, 1995.
Respondent also objects to the discovery on the grounds that Complainant's
Instructions violate the Rules of Practice. Both Complainant and Respondent have acknowledged
that this issue has, to some degree, been rendered moot by the actions of Respondent in generally
complying with the requests. Nevertheless, I conclude that the Instructions merely request that
Respondent respond in a clear and organized method, as it apparently has done. Therefore, I reject
this argument and overrule this objection.
Specific Issues Related to Contested Requests
Interrogatories # 3
Complainant's third interrogatory requests that Respondent detail all
conversations with either the Department of Labor or OSHA occurring on or after May 8, 1998.
Respondent challenges this request as unduly burdensome and irrelevant, because it involves actions
taken subsequent to the filing of the complaint and alleged action. Further, Respondent argues that
"Requiring one party to waste time with this type of question will diminish OSHA's future
efforts to resolve these disputes in that the parties will be circumspect in their participation in an
investigation that leads to a de novo review."
I reject Respondent's arguments, and hereby overrule Respondent's objections
to this interrogatory. The parties are reminded that discovery and relevance in these proceedings is
broad, and a wide range of evidence may prove or disprove retaliatory intent and action. Documents
created and conversations occurring after the filing of a so-called whistleblower complaint could be
useful in determining the substance of the claim of adverse action. Additionally, such statements,
conversations, and affidavits could potentially be used for impeachment purposes in a later
proceeding should a person offer contradictory testimony. Finally, this Judge has no reason to doubt
that a party would be any less candid or forthright with investigators irrespective of my ruling on this
motion. Therefore, as Respondent has failed to present a convincing argument for opposing this
discovery, Complainant's motion to compel is granted in regards to this Interrogatory.
Interrogatories # 4-9
These six interrogatories ask various, named representatives of Respondent
to provide information concerning conversations they had concerning the Complainant and
complaint after May 8, 1998. Complainant argues that such a request is narrowly tailored to only
recent months and concerns relevant information because "in a case alleging continuing
violations" such statements are "relevant to show ongoing retaliatory animus on the part
of such named DEM officials."
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Respondent objects, arguing that these questions are "grossly
overbroad" and "would be a full time job and could not be completed by the trial
date" because the complaint could be read so broadly. Further, Respondent argues that the
need for such discovery could be solved through deposition testimony, rather than responding to
interrogatories.
I hereby overrule Respondent's objection, as I find these requests concern
relevant information that could lead to admissible evidence. Accordingly, the named individuals
must comply with this request. I reject Respondent's argument that this material could be best
obtained solely through a deposition, because a meaningful deposition can only be had when such
documents and materials, if any, are provided to opposing parties prior to depositions. Therefore,
I will grant Complainant's motion to compel in respect to these six interrogatories.
Documents #12-15
At issue are four requests which refer to various documents, including, (12)
documents related to the 1998 Programmatic Audit by the EPA; (13) documents related to
Respondent's expenditure of EPA grant monies since fiscal year 1991; (14) documents related
"to the carryover of federal EPA grant monies for fiscal year 1996 including, but not limited
to, correspondence from DEM to EPA and from EPA to DEM"; and (15) "All EPA mid-year and end-of-the-year reviews of the DEM RCRA program since 1990." Complainant
argues that such discovery may result in evidence which will "corroborate Complainant's
protected disclosures by independently establishing the validity and reasonableness of Complainant's
disclosures: namely, that DEM has failed to enforce RCRA properly." Further, Complainant
argues that "[s]uch documents are also likely to contradict anticipated purported non-discriminatory reasons respondent may offer at trial for the adverse actions taken against
Complainant by demonstrating that federal oversight officials began noting problems with the DEM
RCRA program in 1996 after Complainant was stripped of management responsibility for the
program and the current management was installed."
Respondent, on the other hand, argues that these four requests constitute a
"fishing expedition" and are not relevant to the issues in this case because they
"extend beyond the date of the alleged discriminatory actions taken by DEM."
I agree with the arguments made by Respondent, and refuse to compel
discovery of these four requests. These requests involve documents and communications of an
investigation of the EPA, most of which occur beyond the time limit established by my September
1, 1998 protective order. Further, Complainant seeks information solely to corroborate the
complaint she made to EPA. Such supporting evidence, however, is not necessary. Complainant
need only testify under oath as to the complaints she may to the applicable authorities. It is then up
to the Respondent to show that such contacts did not take place. A complainant enjoys protected
status as a whistleblower so long as he or she had a reasonable belief in the validity of his or her
safety-related complaint, even if subsequent investigation reveals that the complaints were invalid.
Accordingly, I find these four requests unnecessary and burdensome, and I will not compel their
production.1[Page 7]
1 Respondent's request for a protective
order regarding these four requests is rendered moot by my decision not to compel discovery of these
documents.