UNITED STATES
DEPARTMENT OF LABOR

Bowers v. Radian International, 2000-CER-2 (ALJ Oct. 17, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Date: October 17, 2000

Case No.: 2000-CER-2

In the Matter of

THOMAS E. BOWERS
    Complainant

    v.

RADIAN INTERNATIONAL
    Respondent

   This proceeding arises under Section 9610 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. (1988), and the applicable regulations issued thereunder found at 29 C.F.R. Part 24. A determination letter was issued by the U.S. Department of Labor, Occupational Safety and Health Administration which concludes that no discrimination had occurred. A hearing has been requested by the Complainant on the determination made by the Department of Labor.

   IT IS ORDERED that a formal hearing on the merits in the above- captioned proceeding will commence at 9:00 a.m. on Tuesday, February 6, 2001 at the U.S. Courthouse, Bankruptcy Courtroom, Second Floor, 222 N. John Q. Hammons Parkway, Springfield, Missouri.

   Procedurally, the hearing will be conducted based upon regulations provided at 29 C.F.R. Part 18.

   To the extent that the following materials have not previously been submitted in response to the Notice of Docketing, and in the interest of expediting the hearing and insuring a prompt disposition of this matter, IT IS FURTHER ORDERED that the parties shall take the following action:

   1. PREHEARING EXCHANGE. At least 10 workdays prior to the hearing the parties shall submit to the Administrative Law Judge and exchange by mail a prehearing submission containing the following information:

       (a) A brief statement of each issue and the parties' position with regard thereto, including the citation of all relevant statutes, regulations, and case law.

       (b) The full name and address of each witness¹ the party proposes to call with a short summary of the witness' expected testimony.² NO EXPERT WITNESS will be permitted to testify unless the party calling that witness serves upon the other parties a written expert witness report together with a Curriculum Vitae setting forth the professional qualifications of the expert. The written report will be marked as an exhibit of the offering party and received into evidence as that witness' testimony in chief. Additional direct testimony from the expert will be allowed

only if circumstances warrant. It is expected that the qualifications of the expert will ordinarily be stipulated. However, objections to the expert's qualifications will be considered so long as the objections are raised in writing at least five workdays from the date of receipt of the material. Following the qualification of the expert and the introduction of his/her report into evidence, the witness will be made available for cross-examination. Cross-examination by way of deposition is also encouraged.

       (c) A copy of all non-stipulated documents which the party expects to introduce as evidence. Each document must be properly marked for identification at the bottom of each Exhibit as DOL, Employer, Complainant or Respondent Exhibit 1, 2, 3, etc., and paginated. Only those documents which are NOT stipulated should be submitted under this section.

   2. STIPULATION OF DOCUMENTS. The parties are directed to stipulate as to authenticity and content all documents which they mutually agree should be made a part of the record. Each of the stipulated documents must be properly marked for identification at the bottom of each page as Joint Exhibit 1, 2, 3, etc., paginated, and either placed in a three-ring binder or be bound together in some other acceptable form. It is expected that any computations of the Department of Labor will be fully stipulated to the extent that the parties agree with the hours worked, rate of pay, and amount allegedly due each employee or as they agree with any of those individual items.

   3. PRELIMINARY MOTIONS. All preliminary MOTIONS³ and a statement of objections to any of the proposed testimony or documentary evidence submitted must be lodged within five workdays from the date of receipt of the pre-hearing exchange materials. Failure to voice an objection within the five-day period will result in a waiver of all rights with respect to the introduction of any of the materials.

   4. DISCOVERY will be concluded by January 19, 2001.

   5. LEGIBLE COPIES. The parties are also directed to conduct a review of all documents which are made a part of the formal record. Any documents received into evidence which are not clearly legible will be given no weight.

   6. PRE-HEARING CONFERENCE. A pre-hearing conference will be held prior to the calling of this matter for hearing.

   Failure to timely comply with this prehearing order without good cause may result in the dismissal of the proceeding or the imposition of other appropriate sanctions against the noncomplying party.

       Rudolf L. Jansen
       Administrative Law Judge

¹ Each party bears the responsibility and financial burden of having available an interpreter if that is necessary in order for testimony of one of their witnesses to be made a part of the record.

² 2 Failure to comply with this provision may result in exclusion of the testimony of witnesses not listed. Cf. Rule 16, Federal Rules of Civil Procedure.

³ However, time limitations stated in the Department of Labor, Rules of Practice and Procedure, 29 C.F.R. Part 18, will control.