June 4, 2009
SARBANES-OXLEY ACT DEPOSITION OF HIGH-RANKING CORPORATE OFFICIAL; PROTECTIVE ORDER
In Parmer v. Wells Fargo & Co. , No. 07-cv-02061 (D.Colo. May 15, 2009), an U.S. Magistrate Judge granted the Defendant's motion for a protective order to prevent the deposition of the Defendant's General Auditor. In the Findings of Fact, the Magistrate found that Wells Fargo had recently merged with Wachovia, and that the named deponent had been appointed the Chief Auditor and Executive Vice President for the newly merged company, and would be heavily involved in the reorganization and combining of the two separate workforces. The Magistrate cited the FRCP Rule 26(c) standard contained in Thomas v. International Business Machines , 48 F.3d 478 (10th Cir. 1995), regarding the issuance of a protective order in regard to the deposition of a high-level corporate official. The Magistrate wrote:
In that case, the Tenth Circuit relied on the following facts in upholding the protective order: (1) the deposition imposed "severe hardship" on the deponent, (2) the reasons for the deposition were of little relevance to the plaintiff's lawsuit, (3) the deponent lacked personal knowledge about the plaintiff, (4) nothing in the record demonstrated that the defendant failed to make individuals with knowledge available, and (5) the last minute nature of the deposition. Id . at 483-84.
The Magistrate found that in the case before him, while the Plaintiff timely noticed the General Auditor's deposition, the other four factors considered by the Tenth Circuit were applicable. The General Auditor had a very heavy time commitment, frequent travel, and lengthy meetings with the CEO and a member of the Board of Directors, or other peers on the company's operating committees. The Magistrate found that preparing for and attending a deposition would severely impact not only the named deponent's ability to get his job done, but also the schedules of the senior executives and Board members with who he meets regularly. Thus, the deposition would impose a "severe hardship" on both the named deponent and the operation of the Defendant's business.
The Magistrate, upon review of the Plaintiff's complaint, found that her SOX complaint was not related to the subject matter on which the deposition was noticed (whether the audit committee acted appropriately), and that neither the named deponent nor any member of the audit committee were listed among the SOX retaliators. The Magistrate further found that even if the topics for deposition were relevant to the complaint, there were other employees who had first-hand knowledge of the issues. The Magistrate found that the named deponent did not have personal knowledge of the key issues on which the Plaintiff sought to depose him on, and that the Defendant had offered to make available for deposition individuals who did have first-hand knowledge about those issues. The Magistrate found that the Plaintiff should have first deposed those individuals.
NUCLEAR AND ENVIRONMENTAL LAWS [Nuclear and Environmental Whistleblower Digest XXI A]
RES JUDICATA EFFECT OF DOL PROCEEDINGS; ISSUE AND CLAIM PRECLUSION; JUDICIAL ESTOPPEL OF INCONSISTENT POSITIONIn Seetharaman v. Stone & Webster, Inc. , No. 05-cv-11105 (D.Mass. May 11, 2009) (case below ARB No. 06-024, ALJ No. 2003-CAA-4), the Plaintiff had brought various state and federal discrimination claims before the court, and employment discrimination and retaliation claims before the Department of Labor's Occupational Safety and Health Administration. At the parties' request, the court had stayed the federal court action pending the outcome of the OSHA complaint. The Defendent emerged from the DOL proceedings victorious, and filed a motion with the court seeking summary judgment on the Plaintiff's remaining claims, primarily on the basis of issue and claim preclusion.
The court found that res judicata may apply to determinations made by administrative agencies when the agency acted in a judicial capacity, which DOL clearly did in the Plaintiff's case in proceeding before an ALJ and the ARB. DOL's ruling was ultimately affirmed by the First Circuit. Accordingly, the DOL proceedings had res judicata effect.
Applying the particulars of the claims and issues litigated before DOL to the claims pending before the court, the court found that claims based on protected activity were all precluded by DOL's finding that the Plaintiff had not suffered any adverse employment actions as a result of his alleged whistleblowing activities. In regard to the remaining discrimination claims, the court found that they were (1) subject being found untimely because of DOL's findings of the date upon which the Plaintiff had unequivocal knowledge that he was being transferred; (2) that the Plaintiff could not re-litigate a hostile work environment claim that had been rejected by the ALJ; and (3) that the DOL proceedings conclusively established that the Defendant terminated the Plaintiff for legitimate reasons. The court found that to the extent that the discrimination claims were based on "mixed motive," they were not barred. The court also found that the Plaintiff's tort claims were barred by findings in the DOL proceedings that conclusively established that the Plaintiff was not terminated due to any protected activities. The court also found that a promissory estoppel claim based on the Plaintiff's claim that he voluntarily transferred in reliance on promises of training, continued employment and promotion, were barred by the doctrine of judicial estoppel (which precludes parties in civil litigation from asserting legal or factual positions inconsistent with positions they took in prior proceedings), because the Plaintiff had consistently asserted before DOL that he was forced to transfer in retaliation for his protected activities.
[Nuclear and Environmental Whistleblower Digest VIII C 1]
DISTRICT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION TO ENTERTAIN A MANDAMUS PETITION INVOLVING AN ERA WHISTLEBLOWER COMPLAINT WHERE THE MATTER DOES NOT INVOLVE A NONDISCRETIONARY DUTY AND PLAINTIFF HAS A RIGHT TO A DIRECT APPEAL TO THE COURT OF APPEALSIn Newport v. USDOL , No. 08-00631 (W.D.Mo. Apr. 9, 2009) (case below ARB No. 06-110, ALJ No. 2005-ERA-24), the Plaintiff filed a "Petition for Recusal Mandamus" seeking an order recusing the ALJ who heard his ERA whistleblower case, and to vacate and rehear the case. The Plaintiff contended that the ALJ had an improper ex parte communication that led to the improper dismissal of his charge. Specifically, at the evidentiary hearing counsel for the Defendant had informed the ALJ that the Plaintiff had made a threatening gesture directed at one of the Defendant's witnesses in the hall, leading to the ALJ's questioning the Plaintiff about the incident and the Plaintiff's admission to making the gesture. The ALJ recommended dismissal because he had previously ordered the Plaintiff not to threaten witnesses. The ARB affirmed the ALJ's recommendation.
The court denied the mandamus petition based on lack of subject matter jurisdiction, the ERA making it clear that mandamus in available only to compel a nondiscretionary duty, and that the Plaintiff had specific relief available pursuant to 42 U.S.C. § 5851(c) of a direct appeal to the appropriate court of appeals.
SURFACE TRANSPORTATION ASSISTANCE ACT [STAA Digest IX F]
ACTION TO ENFORCE FINAL ORDER OF THE ARB; DISCOVERY ON MITIGATION OF DAMAGES NOT RELEVANTIn USDOL v. Copart, Inc. , No. 07-cv-00077 (N.D.Okla. May 21, 2009) (case below ARB Nos. 04-027, 04-138, ALJ No. 1999-STA-46), the Secretary of Labor filed an action seeking enforcement of a Final Decision of the Administrative Review Board under the STAA whistleblower provision. Initially, a federal Magistrate Judge accepted assertions by counsel for the Defendant that it was necessary to conduct discovery into the question of the whistleblower's efforts to mitigate damages, and stayed the proceedings because the whistleblower had been involved in a serious automobile accident. The Department of Labor subsequently filed a motion for summary judgment, and the question of whether the stay should be continued was broached. Upon review of the motion, the record, and legal research, the Magistrate determined that the Defendant would be required to respond to the motion for summary judgment without taking the deposition of the whistleblower. The Magistrate found that he did not have the authority to revisit the merits of the ARB order, that the time frame encompassing the back pay aspect of the ARB's order ended nearly a year before the ARB order was entered, and that it did not appear that discovery on mitigation of damages would be necessary for the Defendant to respond to the motion for summary judgment — nor was it relevant to any issue before the court.