USDOL/OALJ Reporter
Decisions of the Administrative Review Board
January 2006

Brune v. Horizon Air Industries, Inc. , ARB No. 04-037, ALJ No. 2002-AIR-8 (ARB Jan. 31, 2006)

  • Title : Decision and Order of Remand
  • Link : PDF www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/AIR/04_037.AIRP.PDF
  • Case type : AIR21 Whistleblower
  • Summary :

    AIR21 IS NOT RETROACTIVE TO COVER ADVERSE ACTIONS THAT OCCURRED BEFORE ITS EFFECTIVE DATE

    THE CONTINUING VIOLATION THEORY HAS BEEN REJECTED IN ENVIRONMENTAL WHISTLEBLOWER CASES, AND THIS REJECTION ALSO APPLIES TO AIR21 CASES

    HOSTILE WORK ENVIRONMENT; ALJ MUST APPLY CRITERIA ENUNCIATED IN SASSE v. U.S. OFFICE OF THE UNITED STATES ATTORNEY, AS CLARIFIED BY BELT v. USDOL

    In Brune v. Horizon Air Industries, Inc. , ARB No. 04-037, ALJ No. 2002-AIR-8 (ARB Jan. 31, 2006), the Complainant had alleged a series of alleged adverse actions from 1999-2001 in retaliation for activity protected under AIR21, and timely filed his AIR21 complaint following a May 7, 2001 "write-up" memorandum. The ALJ found that all of the alleged actions were actionable because (1) the May 7, 2001 memorandum incorporated all "previous counseling," (2) there had been a "continuing violation," and (3) there had been a hostile work environment.

    The ARB found that the ALJ misapplied the law. First, AIR21 became effective on October 1, 1999. Two of the alleged actions occurred before this date and were therefore outside the reach of AIR21.

    Second, although some older decisions recognized the continuing violation theory, the Supreme Court in National R.R. Passenger Corp. v. Morgan , 536 U.S. 114-115 rejected that theory in Title VII cases. The ARB had previously held a number of times that Morgan applies to the environmental whistleblower statutes, and found no reason that those holdings should not apply to AIR21.

    Third, the ALJ did not apply the criteria for applying the hostile work environment theory that the ARB had recently enunciated in Sasse v. Office of the United States Attorney , ARB Nos. 02-077, 02-078, 03-044, ALJ No. 1998-CAA-7, slip op. at 34-35 (ARB Jan. 30, 2004), aff'd sub nom Sasse v. United States Dept. of Labor , 409 F.3d 773 (6th Cir. 2005). Specifically -- assuming that the hostile work environment theory applied because the alleged acts were not discrete and were in fact adverse employment actions -- the ALJ had failed to make findings on whether the Respondent intentionally harassed the Complainant, the extent of the harassment, whether the alleged harassment was severe or pervasive enough to change the conditions of the Complainant's employment and create an abusive working environment, or whether the harassment would have had any detrimental effect on a reasonable person and whether it did have such an effect on the Complainant.

    In a footnote, the ARB clarified the Sasse standard based on the recent ruling in Belt v. United States Dept. of Labor , 2006 WL 197385 (6th Cir. Jan. 25, 2006). The ARB had stated in Sasse that "[t]o prevail on a hostile work environment claim, the complainant must establish that the conduct complained of was extremely serious or serious and pervasive." The ARB agreed with the Sixth Circuit that "the more precise articulation of the standard is whether the objectionable conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, rather than whether the conduct was "extremely serious or serious and pervasive." 2006 WL 199735 *6.

    BURDENS OF PROOF IN AIR21 WHISTLEBLOWER COMPLAINT; GENERAL OUTLINE

    In Brune v. Horizon Air Industries, Inc. , ARB No. 04-037, ALJ No. 2002-AIR-8 (ARB Jan. 31, 2006), the ARB restated the procedures and burdens of proof applicable to an AIR21 whistleblower complaint, which had earlier been detailed in Peck v. Safe Air Int'l, Inc. , ARB No. 02-028, ALJ No. 2001-AIR-3, slip op. at 6-18 (ARB Jan. 30, 2004). The Board distinguished the procedure followed at the OSHA investigatory stage and at the hearing stage before the OALJ and the ARB, with essential difference being that to secure an investigation, a complainant needs only to raise an inference of unlawful discrimination (i.e., establish a prima facie case), while at the adjudicatory stage a complainant must prove unlawful discrimination. The ARB wrote that:

        This is not to say, however, that the ALJ (or the ARB) should not employ, if appropriate, the established and familiar Title VII methodology for analyzing and discussing evidentiary burdens of proof in AIR21 cases. The Title VII burden shifting pretext framework is warranted where the complainant initially makes an inferential case of discrimination by means of circumstantial evidence. The ALJ (and ARB) may then examine the legitimacy of the employer's articulated reasons for the adverse personnel action in the course of concluding whether a complainant has proved by a preponderance of the evidence that protected activity contributed to the adverse action.

        Thereafter, and only if the complainant has proven discrimination by a preponderance of evidence and not merely established a prima facie case, does the employer face a burden of proof. That is, the employer may avoid liability if it "demonstrates by clear and convincing evidence" that it would have taken the same adverse action in any event.

    Brune , supra , slip op. at 13-14 (footnotes omitted). In Brune , the ALJ erred in that he required the Complainant to prove his case according to the prima facie case standard, rather than the preponderance of the evidence standard. It is not enough at the hearing phase for a complainant merely to establish a rebuttable presumption that the employer discriminated. Rather, a complainant must provide by a preponderance of the evidence protected activity, adverse action and causation.

    The ALJ also erred because, once the Complainant established a prima facie case, the ALJ assigned the Respondent the burden of demonstrating by clear and convincing evidence that it would have taken the same adverse personnel action in the absence of his employee's protected activity. Rather, a respondent's burden upon a complainant's establishment of a prima face case is one of production , not proof -- the respondent needs only to articulate some legitimate, non-discriminatory reason for its actions -- the respondent's "clear and convincing evidence" burden of proof only arises if the complainant has proven discrimination by a preponderance of the evidence.

Cefalu v. Roadway Express, Inc. , ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB Jan. 31, 2006)

  • Title : Final Decision and Order
  • Link : PDF www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/STA/04_103.STAP.PDF
  • Case type : STAA Whistleblower
  • Summary :

    [STAA Whistleblower Digest II H 4]
    ARB STANDARD OF REVIEW; ALJ'S DISCOVERY SANCTION REVIEWED UNDER ABUSE OF DISCRETION STANDARD

    An ALJ's imposition of discovery sanctions is reviewed by the ARB under an abuse of discretion in an STAA whistleblower appeal. Cefalu v. Roadway Express, Inc. , ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB Jan. 31, 2006).

    [STAA Whistleblower Digest II K]
    SANCTIONS FOR FAILURE TO COMPLY WITH DISCOVERY ORDER; RESPONDENT'S REFUSAL TO REVEAL IDENTITY OF CONFIDENTIAL INFORMANT

    In Cefalu v. Roadway Express, Inc. , ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB Jan. 31, 2006), the Complainant was discharged the very evening that he provided a statement on behalf of a co-worker who had grieved a discharge for allegedly falsifying his driving log. The Complainant's statement alleged that a superior had asked him to falsify a log in violation of the hours of service regulations. The stated ground for the discharge was that the Complainant lied on his 1999 job application

    In discovery the Complainant served an interrogatory requesting the identity of all persons who provided information that the Respondent considered in determining whether to discharge the Complainant. The Respondent refused to respond on the ground that it had promised to keep the informant's identity secret. The ALJ granted the Complainant's motion to compel and denied a motion by the Respondent for a protective order. The Respondent refused to comply. Later, Complainant's counsel deposed three Respondent witnesses who knew the identity of the informant but refused to disclose it. The Complainant thereafter filed a motion seeking sanctions. The ALJ denied a default judgment, but ordered that the Respondent not be permitted to present any evidence that arose from the unidentified confidential source. After a hearing, the ALJ found in favor of the Complainant.

    On review, the ARB found that the ALJ's discovery sanction was not an abuse of discretion. The Respondent's defense was to be that its discharge of the Complainant for lying on his job application was a legitimate, non-discriminatory ground. To show that this was pretext, the Complainant was entitled to know when the Respondent found out about the job application and from whom. He was also entitled to know who participated in the decision to discharge him. The Board, therefore, found that the discovery sanction was appropriate and tailored to the discovery the Respondent refused to produce.

    [STAA Whistleblower Digest V B 1 c v]
    PROTECTED ACTIVITY; STATEMENT PROVIDED IN CO-WORKER'S GRIEVANCE HEARING

    In Cefalu v. Roadway Express, Inc. , ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB Jan. 31, 2006), the Complainant provided a statement on behalf of a co-worker who had grieved a discharge for allegedly falsifying his driving log. The Complainant's statement alleged that a superior had asked him to falsify a log in violation of the hours of service regulations. The ARB found that the ALJ correctly found that such testimony related to motor vehicle safety and was therefore protected activity under the STAA.

Gary v. Chautauqua Airlines , ARB No. 04-112, 2003-AIR-38 (ARB Jan. 31, 2006)

  • Title : Final Decision and Order
  • Link : PDF www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/AIR/04_112.AIRP.PDF
  • Case type : AIR21 Whistleblower
  • Summary :

    CAUSATION; BURDEN TO SHOW THAT PERSON WHO FIRED THE COMPLAINANT KNEW ABOUT THE PROTECTED ACTIVITY

    In Gary v. Chautauqua Airlines , ARB No. 04-112, 2003-AIR-38 (ARB Jan. 31, 2006), the ARB found that substantial evidence supported the ALJ's finding that the Complainant did not adequately prove that the Respondent's Director of Pilot Training knew about the Complainant's protected activity (filing a prior whistleblower lawsuit against another airline) when he fired the Complainant for inadequate performance in a training program. The Complainant alleged that he had told the Respondent's recruiter about his prior whistleblower suit at an interview (which the recruiter denied), and that the Respondent must have been aware of it because it had contacted the prior airline when conducting a background investigation. The ARB found that even if the recruiter knew about the prior whistleblower suit, the Complainant's burden was to show that the Director of Training knew about it. The Director of Training had testified that he did not know about the prior lawsuit until after the Complainant filed the instant AIR21 suit, and the recruiter testified that she had not told the Director of Training anything about the prior airline's response to the background investigation. The Complainant argued that it was improbable that the Respondent did not know of the prior suit because it was "standard practice" for airline companies to divulge such information. The ARB, however, observed that the Complainant had offered no proof to support these assertions. Moreover, the ALJ had found the recruiter and Director of Training to be credible witnesses, and the Complainant had not demonstrated that the ALJ's credibility determinations were incredible or unreasonable. Finally, the Complainant did not assert until the hearing that he had told the recruiter about the prior lawsuit.

    BURDEN TO SHOW THAT ALJ'S CREDIBILITY DETERMINATIONS WERE INCREDIBLE OR UNREASONABLE

    Where an ALJ credits the testimony of the respondent's witnesses, a complainant who maintains on ARB review that those witnesses were not truthful has the burden of demonstrating that the ALJ's credibility determinations were incredible or unreasonable. Gary v. Chautauqua Airlines , ARB No. 04-112, 2003-AIR-38 (ARB Jan. 31, 2006) (citing Lockert v. U.S. Dept. of Labor , 867 F.2d 513, 519 (9th Cir. 1989).

Halloum v. Intel Corp. , ARB No. 04-068, 2003-SOX-7 (ARB Jan. 31, 2006)

  • Title : Final Decision and Order
  • Link : PDF www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/SOX/04_068A.SOXP.PDF
  • Case type : Sarbanes-Oxley Whistleblower
  • Summary :

    PROTECTED ACTIVITY; COMPLAINANT'S MISTAKEN, BUT REASONABLE BELIEF THAT THERE HAD BEEN A SECURITIES VIOLATION

    In Halloum v. Intel Corp. , ARB No. 04-068, 2003-SOX-7 (ARB Jan. 31, 2006), the ARB affirmed the ALJ's finding that the Complainant's complaints to the SEC and management officials of the Respondent constituted protected activity under the SOX. The Complainant had alleged that he had been instructed to delay payment on invoices to increase cash on the Respondent's balance sheet to meet Wall Street expectations. The SEC and the Respondent took these allegations seriously enough to investigate, but ultimately found the contentions to be unfounded.

    The ARB noted that the SOX protects the provision of information that the employee reasonably believes constitutes a violation of any Federal law relating to fraud against shareholders. Although the Complainant was mistaken in several ways about his allegations, the ARB found that the record contained sufficient support for a finding that the Complainant reasonably believed that there was a securities violation.

    ADVERSE EMPLOYMENT ACTION; PRESENTATION OF COMPLAINANT WITH DOCUMENTS DESCRIBING "GROUND RULES" AND "HOPES AND FEARS" OF SUBORDINATES ABOUT THE COMPLAINANT'S RETURN TO WORK

    In Halloum v. Intel Corp. , ARB No. 04-068, 2003-SOX-7 (ARB Jan. 31, 2006), the Complainant was presented with documents entitled "Ground Rules" and "Hopes and Fears" upon his return to work from a medical leave of absence. During this leave, the Complainant had filed a complaint with the SEC and management alleging fraud against shareholders, and an investigation of the allegations was instituted. The ARB agreed with the ALJ that the "Ground Rules" document was only an agenda for the meeting and not discriminatory on its face. The "Hopes and Fears" document related discussions with the Complainant's subordinates about their feelings about the Complainant's return to work. The ARB agreed with the ALJ's finding that this document "was the result of a standard exercise [the Respondent] utilized to inform its employees that they would be protected from reprisal or intimidation after changes in management." Slip op. at 7. The ARB, therefore concluded that neither document constituted an unfavorable personnel action.

    The ARB, however, also agreed with the ALJ that modifications to a Corrective Action Plan that were unreasonable and incapable of completion within the allotted time did constitute an unfavorable personnel action.

    STANDARD OF REVIEW; DEFERENCE TO ALJ'S FACTUAL FINDINGS

    The ARB will defer to an ALJ's factual findings, especially where they are predicated on the ALJ's weighing and determining the credibility of conflicting witness testimony. Halloum v. Intel Corp. , ARB No. 04-068, 2003-SOX-7 (ARB Jan. 31, 2006).

    CAUSATION; COMPLAINANT ONLY NEEDS TO ESTABLISH THAT PROTECTED ACTIVITY WAS A MOTIVE, NOT NECESSARILY THE PRIMARY MOTIVE

    In Halloum v. Intel Corp. , ARB No. 04-068, 2003-SOX-7 (ARB Jan. 31, 2006), the ARB concurred with the ALJ's determination that the Respondent's decision to modify a Corrective Action Plan pertaining to the Complainant was motivated in part by the Complainant's protected activity. It was not necessary for this motive to have been the primary motivating factor in order to establish causation.

    CLEAR AND CONVINCING EVIDENCE; RESPONDENT PROVED THAT THE COMPLAINANT FAILED TO INTEGRATE INTO THE WORKFORCE AND TO PERFORM UP TO EXPECTATIONS

    In Halloum v. Intel Corp. , ARB No. 04-068, 2003-SOX-7 (ARB Jan. 31, 2006), the ARB concurred with the ALJ's determination that the Respondent's decision to modify a Corrective Action Plan pertaining to the Complainant was motivated in part by the Complainant's protected activity. The ARB also concurred, however, with the ALJ's determination that the Respondent had proved, by clear and convincing evidence, that it would have taken the same unfavorable personnel action against the Complainant even in the absence of his protected activity. The Respondent established that the Complainant had failed to integrate himself into the Respondent's workforce and failed to perform up to expectations. The ARB pointed to evidence in the records of the Complainant's missing of meetings, absences from work, failure to understand the Respondent's business operations, failing to meet job expectations for his grade, and failure to comprehend the Respondent's accounting system. The ARB also pointed out the decision to shift the Complainant's work to other group leaders, and concluded that these were sufficient, non-discriminatory reasons to seek the Complainant's termination as an employee.

    Because of the clear and convincing evidence that the CAP would have been modified in the absence of the protected activity, the ARB declined to consider the Complainant's argument that he had been constructively discharged because the CAP established unobtainable goals.

    REOPENING RECORD; SUBMITTER MUST ESTABLISH THAT NEWLY PROFFERED EVIDENCE IS RELEVANT AND MATERIAL AND WAS NOT AVAILABLE PRIOR TO CLOSING OF THE RECORD

    In Halloum v. Intel Corp. , ARB No. 04-068, 2003-SOX-7 (ARB Jan. 31, 2006), the complainant submitted to the ARB an affidavit that had not been in evidence before the ALJ. The ARB noted that its review was limited to the record made before the ALJ and the ALJ's recommended decision and order, but that it could order the ALJ to open the record where proffered evidence is relevant and material and was not available prior to the closing of the record. The ARB declined to do so in the instant case because the Complainant had failed to establish either requirement for reopening a record.

Land v. Consolidated Freightways, Inc. , ARB No. 06-032, ALJ No. 1991-STA-28 (ARB Jan. 31, 2006)

  • Title : Final Decision & Order Approving Settlement & Dismissing Complaint with Prejudice
  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary : Approval of settlement

Powers v. Pinnacle Airlines, Inc. , ARB No. 05-022, ALJ No. 2004-AIR-32 (ARB Jan. 31, 2006)

  • Title : Final Decision and Order
  • Link : PDF www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/AIR/05_022.AIRP.PDF
  • Case type : AIR21 Whistleblower
  • Summary :

    JURISDICTION OF THE ARB; NOTICE OF COMPLAINANT OF INTENT TO FILE A SOX COMPLAINT IN FEDERAL COURT; ARB RETAINS JURISDICTION TO DISPOSE OF AIR21 COMPLAINT

    In Powers v. Pinnacle Airlines, Inc. , ARB No. 05-022, ALJ No. 2004-AIR-32 (ARB Jan. 31, 2006), the Complainant indicated an intent to file a consolidated complaint under the SOX regulations in district court. The ARB observed that the AIR21 does not include a SOX-type election to file in district court and that OSHA and the ALJ had treated the complaint as only stating a claim under AIR21. The ARB found that regardless of whether the district court assumed jurisdiction over any SOX claims that the Complainant may have raised, the district court would not have jurisdiction over the AIR21 claim, and therefore the ARB retained jurisdiction to dispose of the AIR21 complaint.

    ARB TECHNICAL BRIEFING REQUIREMENTS; SIZE OF FONT IN FOOTNOTES

    In Powers v. Pinnacle Airlines, Inc. , ARB No. 05-022, ALJ No. 2004-AIR-32 (ARB Jan. 31, 2006), the Complainant moved to strike the Respondent's brief because it included footnotes that were not in 12-point size. Although not ruling on this motion because it found that the outcome of the case would have been no different if the brief had been struck, the Board stated that it "would not countenance any attempt to subvert the Board's page limit for briefs through the use of an inordinate number of undersized footnotes." Slip op. at n.58.

    DISMISSAL FOR CAUSE; COMPLAINANT'S FAILURE TO COMPLY WITH ALJ'S ORDERS DIRECTING RESPONSES TO RESPONDENT'S INTERROGATORIES AND DISCOVERY REQUESTS

    In Powers v. Pinnacle Airlines, Inc. , ARB No. 05-022, ALJ No. 2004-AIR-32 (ARB Jan. 31, 2006), the ARB affirmed the ALJ's dismissal of the complaint based on the Complainant's failure to file adequate responses to the Respondent's interrogatories or any response to its discovery requests. The ARB found that the ALJ had given the Complainant more that adequate opportunities to comply and that the Complainant had been well aware of the consequences of refusal to comply. The ARB found that the Complainant failed on review to establish any basis for holding that the ALJ had incorrectly concluded that the response to the interrogatories was essentially a non-response. The Board found that 29 C.F.R. § 18.6(2)(v) provided authority for the ALJ to deny a complaint for failing to comply with an order directing a party to respond to interrogatories or to produce documents, and cited Supervan, Inc. , ARB No. 00-008, ALJ No. 1994-SCA-14 (ARB Sept. 30, 2004), for the proposition that the ALJ must have the authority to dismiss cases involving flagrant non-compliance with discovery requests to deter others from disregarding such orders.

    SANCTION FOR FRIVOLOUS CLAIM; RESPONDENT'S BURDEN IS TO SHOW COMPLAINT LACKED ARGUABLE BASIS IN EITHER LAW OR FACT

    In Powers v. Pinnacle Airlines, Inc. , ARB No. 05-022, ALJ No. 2004-AIR-32 (ARB Jan. 31, 2006), the ARB affirmed the ALJ's dismissal of the complaint based on the Complainant's failure to file adequate responses to the Respondent's interrogatories or any response to its discovery requests, despite having several opportunities to comply. The Respondent requested in its appellate brief that the ARB find that the complaint was frivolous and brought in bad faith and order the Complainant to pay an attorney's fee of $1000 under 29 C.F.R. § 1979.110(e). The Board held that to prevail on such a request the Respondent was required to demonstrate that the complaint lacked an arguable basis in either law or fact. Allison v. Delta Air Lines, Inc. , ARB No. 03-150, ALJ No. 2003-AIR-14, slip op. at 6 (ARB Sept. 30, 2004). Because the brief did not address this requirement, the ARB denied the request.

Thompson v. University of Georgia , ARB No. 05-031, ALJ No. 2005-CAA-1 (ARB Jan. 31, 2006)

  • Title : Final Decision and Order
  • Link : PDF www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/CAA/05_031.CAAP.PDF
  • Case type : CAA Whistleblower
  • Summary :

    [Nuclear and Environmental Whistleblower Digest XX E]
    STATE SOVEREIGN IMMUNITY

    In Thompson v. University of Georgia , ARB No. 05-031, ALJ No. 2005-CAA-1 (ARB Jan. 31, 2006), the Complainant alleged that the University of Georgia retaliated against him for complaining about the University's Poultry Science Research Center's improper practice of dipping poultry in pesticide to remove mites. The ARB found, however, that the Board of Regents of the University System of Georgia enjoys sovereign immunity under the 11th Amendment from a CAA, CERCLA, FWPCA, SDWA, SWDA and TSCA whistleblower suit. The ARB declined to retreat from its earlier decisions finding that the CERCLA, TSCA, FWPCA, SDWA, SWDA and CAA do not contain the unmistakably clear language necessary for abrogation. Moreover, it declined to find that the State of Georgia had waived sovereign immunity by receiving federal funds because the Complainant had provided no evidence there was clear waiver language in the particular programs under which the University receives federal funds.

Jenkins v. Old Dominion Recycling, Inc. , ARB No. 05-013, ALJ No. 2004-STA-13 (ARB Jan. 27, 2006)

  • Title : Final Decision and Order
  • Link : PDF www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/STA/05_013.STAP.PDF
  • Case type : STAA Whistleblower
  • Summary :

    [STAA Whistleblower Digest IV C 2 b]
    LEGITIMATE NON-DISCRIMINATORY REASON FOR DISCHARGE; ARGUMENT WITH FOREMAN

    In Jenkins v. Old Dominion Recycling, Inc. , ARB No. 05-013, ALJ No. 2004-STA-13 (ARB Jan. 27, 2006), the ARB found that substantial evidence supported the ALJ's dismissal of the complaint on the ground that the Complainant did not prove that the ground stated the Respondent for his discharge -- an extended argument with his foreman -- was a mere pretext for retaliation for activity protected under the STAA.

Stevens v. Container Port Group , ARB No. 06-020, ALJ No. 2005-STA-4 (ARB Jan. 24, 2006)

  • Title : Final Decision and Order Approving Settlement and Dismissing Complaint with Prejudice
  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary : Approval of settlement

Waechter v. J.W. Roach & Sons Logging & Hauling , ARB No. 04-183, ALJ No. 2004-STA-43 (ARB Dec. 29, 2005)

  • Title : Final Decision and Order
  • Link : PDF (original issuance)
  • Link : PDF (erratum)
  • Link : PDF (reissued decision)
  • Case type : STA Whistleblower
  • Summary :

    SANCTIONS UNDER RULE 18.6(d)(2); RESPONDENT'S FAILURE TO RESPOND TO ALJ'S ORDERS OR COMPLAINANT'S INTERROGATORIES, REQUESTS FOR ADMISSION OR MOTION FOR SUMMARY JUDGMENT

    In Waechter v. J.W. Roach & Sons Logging & Hauling , ARB No. 04-183, ALJ No. 2004-STA-43 (ARB Jan. 9, 2006), the ALJ issued several orders to the parties, none of which the Respondent answered. The Respondent also ignored the Complainant's interrogatories, requests for admissions, and Motion for Partial Summary Judgment. Accordingly, the ALJ ordered the Respondent to show cause why sanctions authorized by 29 C.F.R. § Rule 18.6(d)(2) should not be imposed. When the Respondent again failed to reply, the ALJ ordered that the factual matters addressed by the Complainant's request for admissions be deemed admitted and that the factual matters asserted in the Complainant's affidavit in support of his Motion for Partial Summary Judgment be deemed unopposed. The ALJ also ruled that the Complainant would be afforded an opportunity to present argument and evidence in support of damages and attorney fees and costs and that the Respondent would not be permitted to oppose these submissions. The Respondent made no response to this order either. On review, the ARB held that the record fully supported the ALJ's exercise of discretion in applying sanctions authorized by Rule 18.6(d)(2).

    ARB'S STANDARD OF REVIEW; ALJ'S IMPOSITION OF SANCTIONS UNDER RULE 18.6(d)(2)

    The ARB applies an abuse discretion standard when reviewing an ALJ's imposition of sanctions under 29 C.F.R. § 18.6(d)(2). Rule 18.6(d)(2) provides that if a party fails to comply with discovery or other orders of the ALJ, the ALJ may impose sanctions such as drawing adverse inferences and deeming factual matters to be admitted. Waechter v. J.W. Roach & Sons Logging & Hauling , ARB No. 04-183, ALJ No. 2004-STA-43 (ARB Jan. 9, 2006).