U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-063
ALJ CASE NO. 91-SWD-0001
DATE: January 6, 1998
In the Matter of:
ERNEST A. OLIVER
COMPLAINANT,
v.
HYDRO-VAC SERVICES, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER ON REMEDIES
On November 1, 1995, the Secretary found that Respondent Hydro-Vac
Services, Inc. discriminated against Complainant Ernest A. Oliver for engaging in activities
protected under the Solid Waste Disposal Act of 1988, 42 U.S.C. §1967 (1988), and the
Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §1367 (1988), when it fired him
in August 1990. The Secretary ordered Hydro-Vac to reinstate Oliver to his former position and
remanded this case to the Administrative Law Judge for a recommended decision on the
appropriate amount of damages. The case was assigned to another ALJ who on February 19, 1997
recommended the following: (1) $12,500 in back pay plus interest at 5.52%; (2) $25,000, with
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interest, in front pay in lieu of reinstatement; (3) and $6,000 in attorney's fees and costs.
Recommended Decision and Order (R. D. & O.) at 8. The ALJ denied compensatory damages.
Both parties filed exceptions to the ALJ's recommendations. Oliver and
Hydro-Vac both object to the refusal of the ALJ to issue third party subpoenas. Oliver
"takes issue with the [amount of] front pay and failure to enforce reinstatement," but
does not explain in any more detail the basis for his exception to the front pay award or how much
additional front pay he seeks. Oliver also requests a new hearing to give him an opportunity to
present evidence on compensatory damages and asks for a Department of Labor investigation into
the "fraud, perjury, and conspiracy against Complainant and [the Board]."
In addition to excepting to the refusal of the ALJ to issue third party
subpoenas, Hydro-Vac objects to the ALJ's admission in evidence of certain documents. Hydro-Vac also asserts that Oliver did not seek to mitigate his damages with reasonable diligence so that
no back pay or front pay should be awarded. It also argues that, if any back pay is due, it should
be cut off at the point that Oliver's former position was eliminated for nondiscriminatory reasons.
1 The ALJ has
adequate authority to compel testimony and production of documents from witnesses in control
of parties under 29 C.F.R. §18.29(a)(3), and by making appropriate adverse findings for
failure of a party to comply. See, e.g., Fed. Rules of Civ Pro. 37(b)(2)(A), (B), and
(C).
2 We also
find that the ALJ acted within his discretion in admitting certain documents objected to by Hydro-Vac and according them appropriate weight in light of the lack of an opportunity for cross-examination. 29 C.F.R. §24.5(e).
3 Oliver had
an opportunity to prove entitlement to compensatory damages when this case was remanded by
the Secretary. We find no basis for a remand now for another hearing on this issue and Oliver's
request is denied.
4 The record
is not clear on exactly when Ms. Pennington left Hydro-Vac's employ; Mr. Foxworth testified
"she left on the 17th of 1991," but did not specify a month.
5 We make
this finding because Hydro-Vac failed to introduce evidence to establish an earlier elimination
date. Hoffman v. W. Max Bossert and Boss Insulation and Roofing, Inc., Case No.
94-CAA-004, ARB Dec. Jan. 22, 1997, slip op. at 2; OFCCP v.. Lawrence Aviation
Industries, Inc., Case No. 87-OFC-11, Sec'y. Dec. Jun. 15, 1994, slip op. at 9.
6 The Board
has no authority to act on Oliver's request for a hearing on his allegations of fraud, perjury and
conspiracy and the request is denied.