United States Department of Labor Office of Administrative Law Judges Law
Library
UNITED STATES DEPARTMENT OF LABOR *
OFFICE OF THE SOLICITOR * CIVIL RIGHTS DIVISION
INDEX TO ADMINISTRATIVE DECISIONS UNDER SECTION
503 OF THE REHABILITATION ACT OF 1973
TOPIC 80: EVIDENCE
NOTICE: THIS INDEX WAS PREPARED BY THE CIVIL RIGHTS
DIVISION, OFFICE OF THE SOLICITOR, U.S. DEPARTMENT OF LABOR, FOR
INTERNAL USE. IT IS NOT AN OFFICIAL INTERPRETATION OF THE CASES,
AND WAS LAST REVISED IN NOVEMBER, 1996.
If an individual does not file a complaint with OFCCP, OFCCP may not pursue a remedy on
behalf of the individual, but may use evidence that the person was discriminated against to
demonstrate the propensity of a contractor to violate its affirmative action duties.
OFCCP v. Commonwealth Aluminum, 82-OFC-6, ALJ Rec. Dec. and Order,
June 26, 1986, slip op. at 7, 16, rev'd, Assistant Secretary for Employment Standards
Final Decision and Order, February 10, 1994, at 9; remandedsub.nom., CommonwealthAluminum Corp., v. United States Department
of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996). pending, Assistant
Secretary for Employment Standards.
OFCCP Rules of Practice specifically govern the use of depositions at trial, and therefore,
supersede the Federal Rules of Civil Procedure on this issue. Id. at 11; rev'd on other
grounds, Assistant Secretary for Employment Standards Final Decision and Order, February
10, 1994, remandedsub.nom., CommonwealthAluminum
Corp., v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky.
September 6, 1996).
A deposition could not be introduced into evidence because the Government did not show
that any of the four instances concerning the introduction of depositions into evidence under 41
CFR 60-30.11(e) (3) applied to this case. Id. ; rev'd on other grounds, Assistant
Secretary for Employment Standards Final Decision and Order, February 10, 1994,
remandedsub.nom., CommonwealthAluminum Corp.,
v. United States Department of Labor, No. 94-0071-0(c)(W.D. Ky. September 6, 1996).
The Assistant Secretary declined to accept as part of the record certain scientific evidence
which the OFCCP attached to its exceptions but had not submitted to the ALJ during trial.
OFCCP v. Texas Industries Inc., 80-OFCCP-28, Assistant Secretary for
Employment Standards Dec. and Order, June 7, 1988, slip op. at 4, remandedonothergrounds, Assistant Secretary for Employment Standards Order of Remand
and Stay of Enforcement, September 27, 1990, ALJ Decision and Order on Remand, March 11,
1991; remanded on other grounds, Assistant Secretary for Employment Standards
Decision and Order of Remand, January 27, 1995, ConsentDecree, June 21,
1996.
ALJ denies OFCCP's motion to admit into evidence the medical report of a deceased
physician containing his opinion regarding complainant's ability to perform the job in question
on
the grounds that the report constitutes hearsay and does not fall within a recognized exception at
FRE 803. Texas Eastern Transmission Corp., 88-OFC-30, ALJ Order, June 11, 1990,
slip op. at 1; ALJ Rec. Dec. and Order of Dismissal, April 30, 1991, stipulateddismissal, June 19, 1991.
In determining that report of deceased physician should not be admitted in evidence, ALJ
interprets the standards of admissability set forth in 41 CFR 60-30.18 (1990) as substantially the
same as the standards imposed under FRE, even though the regulation provides that formal rules
of evidence do not apply in Section 503 administrative proceedings. Id. at 2.
ALJ denies OFCCP's motion to admit into evidence report of deceased physician on the
grounds that the report constitutes unsworn statements of a declarant who cannot be subject to
cross-examination and, thus, lack sufficient indicia of reliability to be considered probative.
Id. at 2-3.
A defendant's failure to produce evidence on an issue of jurisdiction such as coverage may
be
held to constitute an admission that jurisdiction lies. OFCCP v. Rowan Companies,
Inc., 89-OFC-41, ALJ Rec. Dec. and Order on Remand, January 4, 1993, slip op. at 6;
remandedonothergrounds, Assistant Secretary for Employment
Standards Order of Partial Remand, April 11, 1995; Second ALJ Decision and Order on Remand,
March 11, 1996; pending, Administrative Review Board.
Contractor's admission that it rejected complainant because of his handicap obviates the need
for OFCCP to commence discovery to prove that contractor knew about the handicap and
considered it as part of its decision-making process. However, the admission does not foreclose
the presentation of evidence by contractor documenting other factors which it considered in
deciding to reject the complainant. OFCCP v. USAir, Inc., 91-OFC-2, ALJ
Order Denying Motion To Reconsider and Motion to Limit, February 24, 1993, slip op. at 4-5,
ConsentDecree, September 7, 1993.
The fact that NASA may have had a policy forever prohibiting former substance abusers
from
becoming astronauts is of little relevance to whether contractor is permitted to permanently bar
former substance abusers from over 1800 different jobs. OFCCP v. Exxon
Corporation, 92-OFC-4, ALJ Rec. Dec. and Order, June 15, 1993, slip op. at 5, n.8;
affirmedonothergrounds, Administrative Review Board Final
Decision and Order, October 28, 1996.
FAA studies regarding its policy of returning recovering alcoholic pilots into the work place
are relevant in determining the risk of relapse of a recovering alcoholic because the FAA policy
appears to be the only industry-wide program of its kind. Id. at 20; affirmed,
Administrative Review Board Final Decision and Order, October 28, 1996, at 16-17.
The content of a letter attached to the defendant's exceptions to the Administrative Law
Judge Decision and Order containing agency opinions similar to the defendant's legal argument,
while not part of the record reviewed by the ALJ, is on the basis of the record, and therefore
properly considered by the Assistant Secretary. Yellow Freight, Assistant Secretary
Order Denying Motion to Strike, September 18, 1995, at 2; ConsentDecree,
February 29, 1996.
Evidence regarding complainant's physical condition after the time he was placed on
disability pension is not relevant as it did not form the basis for defendant's action regarding the
complainant. OFCCP v. American Telephone and Telegraph Company (AT&T),
92-OFC-5, ALJ Order Denying Defendant's Motion for Summary Judgment and Granting in
part
Defendant's Motion in Limine, April 23, 1995, at 9.
The ALJ overruled plaintiff's objection to the admissibility of documentary evidence
provided
by the U.S. Air Force. While questioning the relevancy of the documentation and the radial
keratotomy policy of the United States Air Force, the ALJ was not inclined to exclude this
evidence because he had required the parties to stipulate to the admissibility of most of the
documentary evidence reserving arguments as to relevancy and materiality to the briefs if
appropriate. OFCCP v. United Airlines, Inc., 94-OFC-1, ALJ Order, December
14, 1995, at 4.
The ALJ denied plaintiff's motion to strike certain portions of deposition testimony on
relevancy grounds, because plaintiff's counsel failed to raise these objections when the
depositions
were taken. Id. at 4.
Defendant's contention that the complainant is not entitled to relief because of "after
acquired evidence" consisting of omissions on his application, is a remedial issue to be
addressed on remand. OFCCP v. Yellow Freight System, Inc., 84-OFC-17,
Acting Assistant Secretary for Employment Standards, Reconsideration of Final Decision and
Order of Remand, December 22, 1993, at 9-10 and n.4.; Order Approving Settlement and
Dismissal, April 20, 1994.