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

Coxen v. United Parcel Service , ARB No. 04-093, ALJ No. 2003-STA-13 (ARB Feb. 28, 2006)

  • Title : Final Decision and Order
  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary :

    [STAA Whistleblower Digest II E 4]
    PRO SE LITIGANT; ALJ ACTS PROPERLY IN LIBERALLY CONSTRUING COMPLAINANT'S TESTIMONY AND EVIDENCE IN REGARD TO THEORIES THAT MIGHT SUPPORT THE COMPLAINT

    In Coxen v. United Parcel Service , ARB No. 04-093, ALJ No. 2003-STA-13 (ARB Feb. 28, 2006), the Complainant failed to establish that his termination for insubordination was pretext for retaliation against earlier protected activity. Although the Complainant, appearing pro se, did not actually verbalize or make arguments about theories of pretext, "the ALJ acted properly when she liberally construed [the Complainant's] testimony and other evidence and formulated (�theories') regarding pretext." Slip op. at 6 n.19 (citation omitted).

Evergreen Forestry Services, Inc. , ARB No. 05-029, ALJ No. 2003-MSP-2 (ARB Feb. 28, 2006)

  • Title : Final Decision and Order
  • Link : PDF
  • Case type : MSPB
  • Summary :

    EXCESSIVE SPEED AS VIOLATION OF THE MSPA; INTERPRETATION OF STATE SPEEDING LAW

    In Evergreen Forestry Services, Inc. , ARB No. 05-029, ALJ No. 2003-MSP-2 (ARB Feb. 28, 2006), the Chief ALJ had affirmed civil money penalties totaling $17,000 under the Migrant and Seasonal Agricultural Workers Protection Act based on the operation of a vehicle to transport workers at a speed in excess of that permitted under state law, among other violations. Speed had been found to have caused a tragic accident in which 14 workers were killed when the transport van they were riding in plummeted off a one lane bridge in the Allagash Wilderness Waterway. The Respondent challenged the Chief ALJ's findings in two respects: (1) that the state law governing rates of speed were not applicable to the operation of a vehicle on private land to which the public does not have access without authorization of the landowner, and (2) that the Chief ALJ failed to credit the testimony of a survivor who suggested that a blowout had caused the accident.

    The ARB affirmed the Chief ALJ's findings. First, although the accident occurred on private land, there was evidence that area was available to public users of the North Maine Woods recreational area. The fact that there were restrictions on use, such as entry through gates, right of way rules, and user fees. only helped to prove that the public was allowed to use the land and roads in the area. Second, the Chief ALJ had properly considered the report of a state police officer with training in accident reconstruction as expert opinion evidence. See 29 C.F.R. § 18.702. The forensic report showed that damage to the tires of the van was the result, not the cause, of the accident. Although there was no evidence that the van was exceeding the speed limit of 45 miles an hour on unposted roads, the record established that it was going too fast for the existing conditions, which violated the applicable state law.

Saporito v. Central Locating Services, Ltd. , ARB No. 05-004, ALJ No. 2004-CAA-13 (ARB Feb. 28, 2006)

  • Title : Final Decision and Order
  • Link : PDF
  • Case type : CAA Whistleblower
  • Summary :

    [Nuclear and Environmental Whistleblower Digest XII C 4]
    PROTECTED ACTIVITY; MERE SPECULATION OF POTENTIAL AIR OR WATER POLLUTION IS NOT PROTECTED ACTIVITY

    In Saporito v. Central Locating Services, Ltd. , ARB No. 05-004, ALJ No. 2004-CAA-13 (ARB Feb. 28, 2006), the ARB granted summary decision against the Complainant where his complaint to the Respondent's managers that three manholes his crew had opened could have accumulated flammable or combustible gases that could have ignited and thereby caused air and water pollution, was not a reasonably perceived environmental violation. Although the ARB was willing, for purposes of deciding the summary decision motion, to accept the Complainant's testimony about the reasonable basis to believe that manholes can accumulate potentially explosive gases or other pollutants, it found no evidence that air or water pollution would result. "[The Complainant's] mere belief, without some supporting evidence, that the air and water could become polluted because of the gas or pollutants in or near the manholes involved is not a reasonable perception that [the Respondent] violated the environmental statutes." Slip op. at 8. Therefore, the Complainant's complaints were not protected activity.

    [Nuclear and Environmental Whistleblower Digest XII C 7]
    PROTECTED ACTIVITY; THREAT TO REPORT VIOLATIONS MUST BE BASED ON REASONABLY PERCEIVED VIOLATION TO BE PROTECTED ACTIVITY

    Threatening to report violations of the environmental acts to federal agencies can constitute protected activity; however, such a threat must be based on a reasonable perception that the employer has violated, or is about to violate, the environmental statutes. "To hold otherwise would be to encourage whistleblower litigation that would not serve the legislative goal of protecting the environment." Saporito v. Central Locating Services, Ltd. , ARB No. 05-004, ALJ No. 2004-CAA-13 (ARB Feb. 28, 2006), slip op. at 10.

    [Nuclear and Environmental Whistleblower Digest XII D 9]
    PROTECTED ACTIVITIY; COMPLAINT ABOUT BEING RETALIATED AGAINST FOR RAISING SAFETY COMPLAINTS

    [Nuclear and Environmental Whistleblower Digest VIII B 2 c]
    ISSUES ON APPEAL; THEORY NOT RAISED BEFORE THE ALJ

    In Saporito v. Central Locating Services, Ltd. , ARB No. 05-004, ALJ No. 2004-CAA-13 (ARB Feb. 28, 2006), the ARB recognized that "[c]omplaining to an employer about being retaliated against for raising safety complaints can be protected activity." Slip op. at 9. In the instant case, however, it was unwilling to entertain an argument from the Complainant that he had engaged in such activity where he had not presented this theory to the ALJ, and where the argument was supported by no "references to the record, legal authority or analysis." Id. at 9.

    [Nuclear and Environmental Whistleblower Digest VIII B 2 d]
    SUMMARY DECISION; LIMITATION ON DISCOVERY; BURDEN OF APPELLANT ON REVIEW

    Even though the ARB reviews an ALJ's decision on summary judgment de novo, an ALJ's limitation on the scope of discovery lies within his or her sound discretion. To establish that the ALJ abused that discretion, the appellant must show, at a minimum, how further discovery could have permitted the appellant to rebut the movant's contentions. Mere argument on appeal that the appellant should have been permitted complete discovery does not meet that burden. Saporito v. Central Locating Services, Ltd. , ARB No. 05-004, ALJ No. 2004-CAA-13 (ARB Feb. 28, 2006).

U.S. Dept. of the Interior, National Park Service, Denali National Park & Preserve , ARB No. 04-177 (ARB Feb. 28, 2006)

  • Title : Final Decision and Order
  • Link : PDF
  • Case type : Service Contract Act
  • Summary :

    DISMISSAL; ESA DENIAL NOT FINAL WHERE MOTION TO RECONSIDER IS STILL PENDING

    In U.S. Dept. of the Interior, National Park Service, Denali National Park and Preserve , ARB No. 04-177 (ARB Feb. 28, 2006), the Department of the Interior was granted an extension of time to petition for review of a Wage and Hour determination under the Service Contract Act. After the extended deadline had passed, the ARB issued an order to show cause why the case should not be closed. The Acting ESA Administrator responded that the matter was under reconsideration and that the ARB matter should be dismissed without prejudice and with leave to file a petition for review once a decision is made on the reconsideration. Interior belatedly responded to the order to show cause with a request for an extension of time to respond to the order to show cause until after ESA ruled on the motion to reconsider. The ARB found that a final decision had not yet been made in the case; therefore it did not have authority to hear an appeal, and the case before the Board was closed.

Durham v. Tennessee Valley Authority , ARB No. 06-038, ALJ No. 2006-CAA-1 (ARB Feb. 27, 2006)

  • Title : Final Decision and Order
  • Link : PDF
  • Case type : CAA Whistleblower
  • Summary :

    [Nuclear and Environmental Whistleblower Digest VIII B 1 b]
    TIMELINESS OF PETITION FOR ARB REVIEW; 10 BUSINESS DAYS FROM ISSUANCE OF ALJ DECISION

    The regulation at 29 C.F.R. 24.8(a) provides that the ARB must receive a petition for review within 10 business days of the date the ALJ issued the recommended decision and order; neither the date on which the complainant received the recommended decision and order, nor the date on which he mailed his petition the review is relevant to the question of whether the petition was timely. Durham v. Tennessee Valley Authority , ARB No. 06-038, ALJ No. 2006-CAA-1 (ARB Feb. 27, 2006).

    [Nuclear and Environmental Whistleblower Digest VIII B 1 b]
    TIMELINESS OF PETITION FOR ARB REVIEW; DUE DILIGENCE MAY REQUIRE FILING BY FAX OR FEDERAL EXPRESS

    Due diligence in requesting ARB review may encompass sending a petition for review by fax or by express mail. The ARB in Durham v. Tennessee Valley Authority , ARB No. 06-038, ALJ No. 2006-CAA-1 (ARB Feb. 27, 2006), rejected the Complainant's argument implying that his untimely appeal should be excused because OALJ allegedly does not permit service by fax. The Board observed that it does not have such a rule and that its fax number is prominently displayed on its website for "facsimile filings." See www.dol.gov/arb/contact.htm .

    [Editor's note: The OALJ Rules of Practice and Procedure do not prohibit filings by fax where permitted by statute or regulation or where permission is obtained from the presiding ALJ. 29 C.F.R. § 18.3(f)(1). Similarly, those rules permit service by fax where explicitly permitted by statute or regulation or where the receiving party consents. 29 C.F.R. § 18.3(f)(2).]

United Government Security Officers of America, Local # 52 v. Administrator, Wage & Hour Division, USDOL , ARB No. 06-036 (ARB Feb. 24, 2006)

  • Title : Final Decision and Order
  • Link : PDF
  • Case type : Service Contract Act
  • Summary : The ARB does not have authority to grant summary judgment in a case under the SCA in which neither the Administrator nor a DOL ALJ has issued a final decision.

Cook v. U.S. Environmental Protection Agency , ARB No. 06-036, ALJ No. 2005-CER-1 (ARB Feb. 22, 2006)

  • Title : Final Decision and Order
  • Link : PDF
  • Case type : CERCLA Whistleblower
  • Summary :

    Nuclear and Environmental Whistleblower Digest IV C 5]
    TIMELINESS OF APPEAL TO ARB; EQUITABLE TOLLING; USE OF FEDERAL EXPRESS RATHER THAN FAX WHEN FILING ON THE LAST DAY OF THE LIMITATIONS PERIOD IS NOT DUE DILIGENCE

    In Cook v. U.S. Environmental Protection Agency , ARB No. 06-036, ALJ No. 2005-CER-1 (ARB Feb. 22, 2006), the Complainant had hesitated to take an appeal of the ALJ's recommended decision based on the expense of litigation, and had not decided until the afternoon of the last day of the period in which to file an appeal to go forward. Her attorney located the ARB's fax number on its website, but unsure of whether it was the correct number and unable to verify the number by telephone, he sent the appeal by Federal Express, thereby guaranteeing that appeal would be one day late.

    The fax number on the website had been correct, and the ARB found the attorney's decision not to use it "inexplicable" especially given that he and the Complainant knew that the time for filing was short. The ARB found lack of diligence and lack of grounds justifying equitable tolling.