USDOL/OALJ Reporter: ARB Decision Caselist -- February 2008

 

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Summary :

Order approving withdrawal of objections to Secretary's preliminary findings.

 

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Summary :

The ARB found that substantial evidence in the record supported the ALJ's finding that the Complainant failed to establish that his protected activity was a contributing factor in the Respondent's decision to terminate his employment.

 

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Summary :

[Nuclear & Environmental Digest VIII B 2 b]
MOTION TO REOPEN; STANDARD IS NOT WHEN MOVANT GAINED ACCESS TO DOCUMENTS, BUT WHETHER THEY WERE AVAILABLE WHILE THE RECORD WAS STILL OPEN

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Feb. 29, 2008), the Complainant sought to reopen the record based on documents to which he had obtained access when they were produced in two lawsuits to which he was not a party. The ARB denied the motion, holding that the standard for admitting such documents was not when the Complainant had access to them, but whether they were available while the record was still open. The ARB observed that the Complainant had offered no evidence to show that he could not have timely obtained the documents, and that the attorney who filed the lawsuits, and subsequently gave the Complainant access to documents in those cases, testified on the Complainant's behalf in the DOL whistleblower proceeding. The ARB also found that the new documents were not material to the issue of whether the Respondent took any adverse employment action against the Complainant.

 

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• (Erratum) (ARB Mar. 7, 2008) PDF

 

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Summary :

NEW ARGUMENT ON APPEAL; ARB �S FUNCTION IS TO REVIEW ALJ�S DECISION FOR ERROR, NOT TO PROVIDE FORUM TO TRY OUT NEW THEORIES

TIMELINESS OF REQUEST FOR HEARING; ASKING OSHA TO FORWARD LETTER TO OALJ DOES NOT PROVIDE EQUITABLE GROUNDS FOR TOLLING

In Mancinelli v. Eastern Air Center, Inc. , ARB No. 06-085, ALJ No. 2006-AIR-8 (ARB Feb. 29, 2008), the ALJ dismissed the Respondent's request for a hearing as untimely. On appeal, the Respondent for the first time argued that it had showed sufficient diligence to warrant equitable tolling of the limitations period (having sent a letter with objections to the OSHA office that issued the preliminary findings and requesting that OSHA forward the letter to the Chief ALJ). The ARB refused to consider the argument, stating that its �function is to review ALJ recommended decisions for error; it is not to provide litigants with a forum where they can retry their cases with new theories.� The ARB also stated that the Respondent did �not cite, nor do we know of any legal basis, allowing a party to unilaterally transfer its duty to comply with written procedural requirements from itself to the Regional Administrator.�

NEW ARGUMENT ON APPEAL; ARGUMENT NOT MADE BEFORE THE ALJ DEEMED WAIVED

ARGUMENT MADE WITHOUT SUPPORTING ARGUMENT WILL NOT BE CONSIDERED BY THE ARB

In Mancinelli v. Eastern Air Center, Inc. , ARB No. 06-085, ALJ No. 2006-AIR-8 (ARB Feb. 29, 2008), the Employer argued for the first time on appeal that the Complainant's whistleblower complaint was barred by res judicata based on a state law judgment. The ARB found that this argument had been waived because it had not been raised before the ALJ, and that even if not waived, it would not be be considered due to lack of supporting argument, the Respondent having not identified even one aspect of the state proceeding that was identical to the instant proceeding.

 

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SERVICE OF PROCESS; FAILURE TO SERVE AGENT OF THE RESPONDENT AUTHORIZED TO ACCEPT SERVICE OF PROCESS

In McCloskey v. Ameriquest Mortgage Co. , ARB No. 06-033, ALJ No. 2005-SOX-93 (ARB Feb. 29, 2008), the ALJ entered a default judgment when the Respondent did not attend the hearing or respond to the ALJ's order to show cause why it had failed to attend the hearing. The ALJ had served the Respondent by certified mail at the field office address where the Complainant had worked. The Complainant appealed, challenging the ALJ's damages award. On appeal, the ARB received a letter from the Respondent's attorney alleging that the Respondent had not received proper notice of the ALJ's hearing or any other proceedings in the case, and asserted that the field office address was not a proper address for service of process and that no one at that office was authorized to accept service on behalf of the company. Consequently, the ARB held that the ALJ erroneously entered default judgment, and remanded the case to provide the Respondent an opportunity to respond to the ALJ's order to show cause.

 

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Summary :

The ARB affirmed the ALJ's determination that the Respondent failed to establish that a deduction of its agreed back wages liability was warranted and had failed to pay the back wages the DOL found that it owed in accordance with the terms of an earlier Consent Findings and Order. Consequently, the ARB also affirmed the ALJ's determination that the Respondent should be debarred from entering into a service contract with the United States.

 

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FILING OF RESPONSE WITH ALJ BY E-MAIL

In Stevenson v. Vertex Pharmaceuticals, Inc. , ARB No. 06-107, ALJ No. 2006-SOX-56 (ARB Feb. 29, 2008), the ALJ had issued an order directing the Complainant to respond to the Respondents� motion to dismiss based on lack of timeliness of the complaint. When the ALJ did not receive a response, she dismissed the case based on the record before her, which showed that the Complainant's complaint was five days late. On appeal, the Complainant argued that she had responded to the ALJ's order to �everyone� by e-mail. The Board, however, found that the Complainant had not sent the e-mail to the ALJ, and therefore affirmed the dismissal.

The Respondents had argued that e-mail filings were not permitted by the applicable rules. The ARB did not rule on this argument, but observed that the SOX regulations do permit e-mail filings in certain circumstances.

 

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Summary :

[Nuclear and Environmental Whistleblower XVIII C 10]
DISMISSAL FOR CAUSE; INTIMIDATION OF WITNESS

In Newport v. Florida Power & Light Co. , ARB No. 06-110, ALJ No. 2005-ERA-24 (ARB Feb. 29, 2008), during a telephone conference to hear the Respondent's motion for sanctions, the ALJ learned that the Complainant had threatened witnesses and counsel. The ALJ ordered the Complainant not to threaten anyone again, and the Complainant agreed to refrain from doing so. Later a hearing was convened, and during a recess the Complainant gestured toward one of the Respondent's witnesses by drawing his finger across his own throat as if slashing the witnesses� throat. Following taking testimony about the incident, and a renewed motion for sanctions by the Respondent, the ALJ found that the gesture constituted a threat and a violation of his earlier order not to make threats. The ALJ therefore denied the complaint. The ARB affirmed on appeal.

 

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Summary :

Order approving withdrawal of objections to Secretary's preliminary findings.

 

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Summary :

Denial of motion to reconsider decision to dismiss based on the Complainant's argument that the bankruptcy court had not �dismissed� his claims and therefore they survived the Respondent's bankruptcy. The ARB found that this argument did not fall within any of the four limited circumstances under which it would reconsider its decisions.

 

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Summary :

Approval of settlement agreement.

 

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Summary :

Appeal withdrawn.

 

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Summary :

Approval of settlement agreement.

 

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Summary :

Duplicate case number administratively closed.

 

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Summary :

Party in interest's appeal withdrawn so that a third panel review process could proceed.

 

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