USDOL/OALJ Reporter: ARB Decision Caselist -- April 2010

 

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Summary :

[Nuclear and Environmental Digest XX E]
STATE SOVEREIGN IMMUNITY

[Nuclear and Environmental Digest II B 1 b]
AMENDMENT OF COMPLAINT; TIMELINESS OF ATTEMPT TO ADD RESPONDENTS TO AVOID DISMISSAL ON STATE SOVEREIGN IMMUNITY GROUNDS

In Yagley v. Hawthorn Center of Northville Twp. , ARB No. 09-061, ALJ No. 2009-CAA-2 (ARB Apr. 30, 2010), the Complainants filed a retaliation complaint under the employee protection provisions of the CAA, the FWPCA, and the TSCA, alleging retaliation for the filing of a previous complaint in 2005. The previous complaint had been dismissed as barred by 11th Amendment state sovereign immunity. OSHA found that the Complainants' new complaint alleged non-specific threats and warnings, and was also barred by sovereign immunity. The ALJ also dismissed based on sovereign immunity, but upon receiving a copy of a letter addressed to the Secretary of Labor dated several days before his decision, in which a claim was made that non-governmental entities retaliated against one the Complainants, the ALJ reopened the matter for the limited purpose of giving the Complainants' the opportunity to establish that their complaint had included charges against non-governmental entities. The ALJ also requested that OSHA provide a copy of the original complaint. The ALJ found that the complaint did not name any non-governmental entities as respondents, and therefore again found that the complaint was barred by sovereign immunity. On appeal, the ARB directed the Complainants to identify the respondents in the matter, list their addresses, and provide proof of service on those respondents with each document filed with the Board. The ARB found that the Complainants failed to comply with the order, and therefore the only respondent was Hawthorn Center, which was a state agency. In additional briefing, the ARB found that the Complainants never made an argument regarding the issue of sovereign immunity. Accordingly, the ARB agreed with ALJ that the claim was barred. The ARB also agreed with the ALJ that the complaint filed with OSHA could not be reasonably construed as naming any respondents that were not entitled to sovereign immunity, and that the Complainants' attempt to amend the complaint was untimely in response to the ALJ's briefing order.

 

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Summary :

[STAA Digest II P]
SUMMARY DECISION; MOVING PARTY MAY RELY ON PLEADINGS AND EVIDENTIARY RECORD TO SUPPORT MOTION; NON-MOVING PARTY MUST THEN GO BEYOND PLEADINGS TO SHOW EXISTENCE OF GENUINE ISSUE OF MATERIAL FACT FOR HEARING

In Menefee v. Tandem Transport Corp. , ARB No. 09-046, ALJ No. 2008-STA-55 (ARB Apr. 30, 2010), the Complainant was a driver for Respondent Tandem Transport Corp. for a dedicated accounts serving Respondent Lowe's. The Respondents filed a joint motion for summary decision, stating that the Complainant had been barred from all Lowe's locations, and that for this reason and others, the Complainant's employment had been terminated. The Respondents did not attach any affidavits to their joint motion. The ALJ informed that the Complainant that his response to the Respondents' motion must set forth specific facts showing a genuine issue of fact for the hearing, and that he had the right to file affidavits and other responsive material to set forth such facts. The Complainant's response, however, was vague and failed to point to any specific conduct that was protected under the STAA. The ARB agreed with the ALJ's conclusion that the response was vague to the point where it did not raise any genuine issue of material fact regarding whether the Complainant engaged in protected activity. The ARB agreed with the ALJ that, because protected activity is a necessary element of a STAA whistleblower complaint, the Respondents were entitled to judgment as a matter of law.

One member of the ARB wrote a concurring opinion to clarify that, pursuant to the Supreme Court decision in Celotex Corp. v. Catrett , 477 U.S. 317 (1986), a moving party cannot discharge its burden of proof by moving for summary decision without support or a mere conclusory assertion that the plaintiff has no evidence to support his case. A moving party, however, may (as in the instant case) rely on the pleadings and evidentiary record before the tribunal, and where it does, the nonmoving party must go beyond the pleadings, and by his or her own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing a genuine issue for trial.

 

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Summary :

[Nuclear and Environmental Digest VII C 1 and VII C 3]
MOTION TO DISMISS; FAILURE TO STATE A CLAIM FOR RELIEF; SUMMARY DECISION

In Evans v. United States Environmental Protection Agency , ARB No. 08-059, ALJ No. 2008-CAA-3 (ARB Apr. 30, 2010), the Complainant was an environmental specialist working for the EPA. He filed a complaint with OSHA stating that he engaged in protected activity under the CAA, CERCLA, ERA, SDWA and TSCA when he informed EPA management and "appropriate enforcement authorities" about the "environmental risks of having employees participate in emergency response (ER) work without sufficient training." The Complainant also stated that he wrote a letter to the EPA Administrator describing these risks, and that the letter "provoked a spiral of harassment and animosity" against the Complainant. The Respondent filed a motion to dismiss, the Complainant responded with a memorandum in opposition and declarations from three coworkers, arguing that his complaint, as written, was sufficient to withstand the motion, and arguing the because the Respondent's motion was founded on factual allegations, the motion should be reviewed under the standards for summary decision. The ALJ found that the Complainant failed to state a claim upon which relief can be granted because the complaint and letter to the EPA Administrator did not contain information indicating that that the Complainant engaged in activity protected under the environmental acts.

On appeal the ARB analyzed the motion to dismiss under both the "failure to state a claim" and "summary decision" standards. The ARB stated that it applies FRCP 12(b)(6) to a motion to dismiss for failure to state a claim upon which relief can be granted, and 29 C.F.R. 18.40 and FRCP 56 to a motion for summary decision.

Failure to state claim

In the instant case, the ARB first affirmed the ALJ's determination that the Federal Government has not waived sovereign immunity under the ERA or TSCA. To set the context, the ARB then reviewed the purposes of the remaining acts cited in the complaint: the CAA, SDWA and CERCLA. The ARB stated that the "complaint must indicate that he apprised EPA or the �appropriate enforcement authorities' he refers to in his complaint of a violation of the CAA (such as the potential emission of a pollutant into the ambient air), SDWA (the contamination of drinking water), or CERCLA (the cleanup of hazardous waste sites)." USDOL/OALJ Reporter at 6 (footnote omitted). The ARB observed that the Supreme Court had stated in Ashcroft v. Iqbal , 556 US. __, 129 S.Ct. 1937, 1949 (2009), that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. The Complainant's accusation that EPA discriminated against him was a legal conclusion. The ARB found that it was proper to interpret the complaint in the light of letter to the EPA Administrator referenced in the complaint. The ARB found that the complaint referenced occupational hazards that were not protected activity under the environmental acts, and personnel decisions which standing alone were not protected activity under those laws.

The ARB disagreed with the Complainant's argument that he was not required to describe how his alleged protected activity related to the environmental acts because the governing regulations do not require any particular form of complaint, other than to be in writing and to "include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violation." Id. at 8 (footnote omitted). Rather, the ARB held that although a complaint "does not need detailed factual allegations, it still must provide factual allegations that indicate the grounds for the complaint." Id. (citation omitted). The ARB stated that "[a] complaint �must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.'" Id . at 8-9 (citation omitted). The ARB stated that "[i]t is therefore not enough that Evans simply state in his complaint that he �engaged in protected activity.' He must present a factual allegation indicating that the activity could qualify for protection under the environmental acts." Id. at 9.

The ARB reviewed the complaint as supplemented by the Complainant's letter to the EPA Administrator and concluded that it failed to state a claim for relief under the CAA, SDWA or CERLCA.

Summary Decision

EPA had attached a copy of the Complainant's letter to the EPA Administrator to its motion to dismiss, and the Complainant had included three affidavits from co-workers in his response arguing that the motion should be reviewed under the standard for summary decision. The ARB stated that "when the parties submit evidence outside the pleadings, the Board reviews a motion to dismiss as a request for summary decision." Id. (citations omitted). The ARB reviewed the complaint, the letter to the EPA Administrator, the Complainant's memorandum in opposition to the motion to dismiss, and supporting declarations, and found that they did not indicate that the Complainant had communicated a concern to EPA related to the administration or enforcement of the environmental acts. The declarations from co-workers described concern about the ER training being inadequate and poorly designed, but did not constitute protected activity because they only conveyed "a vague notion that EPA's conduct might negatively affect the environment." Id. at 10-11 (citations omitted). The ARB noted that it had previously ruled that complaints based on numerous assumptions and speculation are not protected. Moreover, the declarations only showed that the Complainant communicated concerns about working conditions, and not the administration or enforcement of the environmental acts. The record showed that the Complainant was concerned about matters that could theoretically arise during an emergency. But concerns about potential violations based on possible contingencies, are not protected activity under the environmental acts. Thus, the ARB found that the Respondents were entitled to summary decision.

Finally, the ARB rejected that the Complainant's argument that the ALJ had improperly denied the opportunity for discovery, because the ALJ had accepted the facts as alleged in the complaint and response, and because the facts relating to protected activity were within the Complainant's knowledge and control. Additional discovery, therefore, was not needed to counter the claim that the Complainant did not engage in protected activity.

The dissent

One member of the Board forcefully dissented. The dissenter stated that "the ALJ's requirement of specificity imposes upon a claimant seeking whistleblower protection under the environmental acts a heightened pleading standard that has been expressly rejected by the Supreme Court in employment discrimination cases. See Swierkeiewicz v. Sorema, N.A. , 534 U.S. 506, 122 S.Ct. 992 (2002)�." The dissenter found the Complainant's allegations of whistleblower protected activity to be facially plausible, and therefore sufficient to overcome a 12(b)(6) motion. The dissenter also stated that he rejected the notion that the ARB on appeal could transform the ALJ's 12(b)(6) disposition into a ruling as a matter of summary judgment. The dissent noted that the ALJ had expressly rejected consideration of the motion to dismiss under the summary judgment standard.

 

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Summary :

MOTION TO RESCIND FINAL DECISION AND ORDER BASED ON NOTICE OF INTENT TO RE-FILE IN DISTRICT COURT; DOL JURISDICTION DOES NOT TERMINATE UNTIL CLAIM IS ACTUALLY RE-FILED

In Smale v. Torchmark Corp. , ARB No. 09-012, ALJ No. 2008-SOX-57 (ARB Apr. 30, 2010), the ARB rejected the Complainant's contention that the ARB's Final Decision and Order should be rescinded because he did not receive a copy of the decision in a timely fashion. The same day that the ARB issued its decision, the Complainant had placed in the mail a notice to the ARB that he intended to re-file his SOX complaint in federal district court. The ARB did not receive the notice until 7 days after the decision had been issued. The ARB found that the timing of the Complainant's receipt of the ARB decision had no impact on his legal position in relation to his desire to re-file his complaint in federal district court. The ARB stated that if the Complainant does re-file, it will be up to the district court to decide if it can obtain jurisdiction after the ARB has issued its final decision. The ARB acknowledged that it normally issues an order to show cause upon receiving a notice of intent to re-file a SOX whistleblower complaint in federal district court, but that since it had already issued its decision in the instant case, further action by the Board upon receipt of the notice was neither necessary or appropriate.

The ARB rejected the Complainant's argument that the Respondent's citation to the ALJ decision in Rusick v. Merrill Lynch & Co., Inc., ALJ No. 2006-SOX-045 (Mar. 22, 2006), was inapposite. In Rusick , the ALJ advised a complainant who had informed the ALJ of his intent to file in district court, that she would retain retain jurisdiction until served with a copy of the federal court filing. When the respondent later moved for dismissal and the complainant failed to oppose the motion except to reiterate the intent to re-file in federal court, the ALJ granted the motion, finding that she retained jurisdiction of the complaint until the complainant filed in district court. In the instant case, the Complainant argued that Rusick was distinguishable because in that case the notice was submitted to the ALJ before the 180-day period specified in 18 U.S.C.A. § 1514A(b)(1)(B) had run, whereas in the instant case the 180-day period had long passed. The ARB, however, held that "the determinative fact was not when the complainant gave notice of his intent to re-file (either before or after the 180-day period had run), but whether [the ALJ] retained jurisdiction to decide the case, which she did until such time as the complainant re-filed his complaint in district court." USDOL/OALJ Reporter at 4.

 

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Summary :

INTERLOCUTORY APPEAL WHERE ALJ BIFURCATED ADJUDICATION OF MERITS AND DAMAGES

In OFCCP v. Bank of America , ARB No. 10-048, ALJ No. 1997-OFC-16 (ARB Apr. 29, 2010), the ALJ issued a recommended decision finding that the Defendant had intentionally and unlawfully discriminated against African-American candidates in hiring. The ALJ stated that she would retain jurisdiction for adjudication of damages, and attached a notice of appeal rights to the recommended decision. The Defendant filed with the ARB a motion for enlargement of time to file exceptions to the ALJ's recommended decision. The ARB found that the appeal of the merits was interlocutory because the ALJ had retained jurisdiction to adjudicate remedies, and ordered the Defendant to show cause why the motion for an enlargement of time should not be denied. The Defendant argued that the ALJ, by including a notice of appeal rights, had in effect certified the recommended decision for interlocutory review, citing Dempsey v. Fluor Daniel, Inc. , ARB No. 01-075, ALJ No. 2001-CAA-5 (ARB May 7, 2002). In Dempsey , a CAA whistleblower case, the ALJ had bifurcated the issues of coverage and other merits issues because the parties had maintained at the hearing that they were only prepared to litigate coverage. Upon finding coverage, the ALJ remanded the matter to OSHA for investigation of the remaining merits issues. The ARB found that it had accepted review in Dempsey , giving the respondent the benefit of a doubt that the ALJ's notice of appeal rights was, in effect, a certification of the case for interlocutory review, because the inclusion of the notice appeared to be intentional and signaled a certain degree of finality as far as the ALJ was concerned. In the instant case, in contrast, the ALJ retained jurisdiction, indicating that inclusion of the notice of appeal rights was no more than an administrative oversight. The ARB found that, in any event, it would not grant interlocutory review in the instant case.

The ARB rejected the Defendant's argument that interlocutory review should be granted because the remedies phase would require several hundred mini-trials for every African-American candidate not hired by the Defendant. Noting that this argument was inconsistent with other statements of the Defendant during the proceedings that such mini-trials would not be necessary, the ARB held that "difficulty or complexity of litigating the remedies issue is not in and of itself a ground for accepting an interlocutory appeal." The ARB stated that the Defendant must first establish that the ALJ's order involves a controlling question of law and that there is a substantial basis for difference of opinion in resolving the issues.

The ARB found that there was no single purportedly controlling question of law identified by the Defendant. Rather, it had identified at least nine issues. The ARB stated that plainly it could not decide those issues quickly and cleanly without resort to the consideration of the record. Moreover, the Defendant had only explained why it had differences with the ALJ's resolution of the issues � not that there was necessarily a substantial basis for difference of opinion in resolving the issues.

The Defendant also cited the Secretary of Labor's decision to grant limited interlocutory review in OFCCP v. Honeywell, Inc. , 1997-OFC-3 (Sec'y 1993), in support of its argument in support of interlocutory review. The ARB observed, however, that the Secretary had engaged in interlocutory review of specific limited threshold issues in that case in the hope that a decision would encourage the parties to engage in voluntary mediation. The Secretary had specifically refused to consider whether the plaintiff had carried its burden of proving a violation of the Executive Order. Here, the Defendant was requesting a review of whether the Plaintiff had carried its burden of proof. The ARB also noted that, although not dispositive, in the instant case OFCCP objected to interlocutory review.

Finding no basis for departing from its general rule against accepting interlocutory appeals, the ARB denied the motion for an enlargement of time to file a petition or review, and remanded the case to the ALJ.

 

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Summary :

Approval of withdrawal of administrative claim for purpose of proceeding in district court.

 

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Summary :

COVERAGE OF EMPLOYEE OF NON-PUBLICLY TRADED SUBSIDARY OF PUBLICLY TRADED PARENT; ARB REQUEST FOR BRIEFS

In Johnson v. Siemens Building Technologies , ARB No. 08-032, ALJ No. 2005-SOX-15 (ARB Apr. 15, 2010), the ARB announced that it would be reviewing the question of whether an employee of a subsidiary of a publicly held company may bring an action against a non-public subsidiary under section 806. The ARB noted that ALJs and the courts had struggled with the question, resulting in a variety of diverging and conflicting opinions. The Board noted that many ALJs have employed common law agency theory, or an integrated enterprise or single employer test, in analyzing the issue, whereas the ALJ in Morefield v. Exelon Servs., Inc. , 2004-SOX-2 (ALJ Jan. 28, 2004), had held that subsidiaries are covered within the purpose of the SOX without resort to either the integrated enterprise test or agency theory. The ARB quoted the ALJ's decision in Morefield :

A publicly traded corporation is, for Sarbanes-Oxley purposes, the sum of its constituent units; and Congress insisted upon accuracy and integrity in financial reporting at all levels of the corporate structure, including the non-publicly traded subsidiaries. In this context, the law recognizes as an obstacle no internal corporate barriers to the remedies Congress deemed necessary. It imposed reforms upon the publicly traded company, and through it, to its entire corporate organization.

Under these circumstances, the scope of Sarbanes-Oxley whistleblower protection tracks the flow of financial and accounting information throughout the corporate structure and remains as permeable to the internal "corporate veils" as the financial information itself. I conclude that employees of non-public subsidiaries of publicly traded companies are covered by the whistleblower protection provisions of Sarbanes-Oxley.

Johnson , USDOL/OALJ Reporter at 3-4 (quoting Morefield , slip op. at 4-6). The ARB noted that the Morefield approach had been reconsidered, and adopted, in Walters v. Deutsche Bank AG , 2008-SOX-70 (ALJ Mar. 23, 2009). The ARB also noted variations in the courts' approaches to the issue.

Accordingly, the ARB requested additional briefing by the Complainant, Respondent, OSHA, the SEC, and amici curiae on the issue. Briefs are due on or before July 15, 2010, with reply briefs due on or before August 4, 2010.

 

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Summary :

[Nuclear and Environmental Digest XI C 2 b]
CONTRIBUTING CAUSE; NONPRETEXTUAL REASON FOR REDUCTION OF HOURS; DISCHARGE FOR INSUBORDINATION

In Benson v. North Alabama Radiopharmacy, Inc. , ARB No. 08-037, ALJ No. 2006-ERA-17 (ARB Apr. 9, 2010), the ARB found that the record supported the ALJ's finding that the Respondent did not know prior to discharging the Complainant that the Complainant spoke with the NRC and a state office about exposure to radiation from the exterior of a nuclear pharmaceutical transport container. The ARB also found that the record supported the ALJ's finding that even if the Respondent knew about the Complainant's protected activities, that activity was not proved to have been a contributing cause to the adverse action. The Respondent had investigated the Complainant's allegations in October 2005, and reported the allegations to the state office, which informed the Respondent that it was operating in compliance with the law. The Respondent did not subject the Complainant to any adverse action until February 2006 when it reduced his work hours, for cause. The ALJ found that the hours were reduced for the nonpretextual reason that the company had lost a customer and decided to refrain from sending the Complainant to another customer that had complained about the Complainant's behavior during a delivery. Moreover, the Complainant had been fired for insubordination.

[Nuclear and Environmental Digest VII D 6]
EVIDENCE; SUBMISSION OF POST-HEARING EXHIBITS AFTER ALJ HAD CLOSED THE RECORD

In Benson v. North Alabama Radiopharmacy, Inc. , ARB No. 08-037, ALJ No. 2006-ERA-17 (ARB Apr. 9, 2010), the ARB found that the ALJ did not err in rejecting post-hearing exhibits proffered by the Complainant where, at the conclusion of the hearing, the ALJ had closed the record after asking the parties if they wished to add "anything else" to the record. The ARB cited 29 C.F.R. 18.54(c), which states that "[o]nce the record is closed, no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record."

 

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Summary :

[STAA Digest IV D 1]
RESPONDENT'S BURDEN IS PROVE THAT IT "WOULD" HAVE DISCHARGED THE COMPLAINANT NOT MERELY THAT IT HAD A "GOOD REASON" TO DISCHARGE THE COMPLAINANT FOR NONDISCRIMINATORY REASONS

In Pollock v. Continental Express , ARB Nos. 07-073, 08-051, ALJ No. 2006-STA-1 (ARB Apr. 7, 2010), the ARB affirmed the ALJ's finding that the Complainant was terminated from employment because of his refusal to drive on a weight restricted road. The ALJ's causation determination was partly based on the temporal proximity between the refusal and the termination a week later without an intervening event. In addition, the Respondent HR director had testified that the Complainant's refusal to drive was "the straw that broke the camel's back."

The Respondent argued that it terminated the Complainant based on his entire employment history of company policy violations and insubordination. The ALJ agreed that the Complainant was a "difficult" and "problem" employee. The ARB stated that the ALJ properly noted, however, that "it is not sufficient for an employer to merely prove that it had a 'good reason' to terminate its employee, but must prove by a preponderance of the evidence that 'would have' terminated the employee, even if the employee had not engaged in protected activity." USDOL/OALJ Reporter at 11, quoting ALJ decision. The record did not, the ARB found, support a finding that had the Complainant not refused to drive on a weight restricted road, the Employer would still have considered terminating the Complainant. The ARB found that substantial evidence supported the ALJ's finding that pretext had been shown, and that the Respondent failed to show that it would have terminated the Complainant even if he had not engaged in protected activity.

[STAA Whistleblower Digest IX B 3 f]
BACK PAY; MITIGATION OF DAMAGES; TOLLING BASED ON COMPLAINANT'S TERMINATION FROM SUBSEQUENT EMPLOYMENT

In Pollock v. Continental Express , ARB Nos. 07-073, 08-051, ALJ No. 2006-STA-1 (ARB Apr. 7, 2010), the ARB affirmed the ALJ's finding that the Complainant's back pay award would not be tolled based on the Complainant's admission that he had been discharged for cause from employment subsequent to his termination by the Respondent, where the Complainant's testimony did not establish that the discharge had been for "gross" or "egregious" conduct. The ARB stated that, as the burden was on the Respondent to establish that the Complainant failed to mitigate damages due to his termination by the subsequent employer, it should have called the Complainant at the hearing to more fully explain that the reasons for his termination constituted a willful violation of the subsequent employer's rules.

[STAA Whistleblower Digest III F]
[STAA Whistleblower Digest III G]
INADMISSIBILITY OF CHARACTER EVIDENCE FOR IMPEACHMENT; FILING OF SUITS OR WHISTLEBLOWER COMPLAINTS AGAINST OTHER EMPLOYERS

In Pollock v. Continental Express , ARB Nos. 07-073, 08-051, ALJ No. 2006-STA-1 (ARB Apr. 7, 2010), the ARB found that the ALJ did not abuse his discretion in not allowing the Respondent to question the Complainant about whether he had filed suits or OSHA whistleblower complaints against three trucking companies that subsequently employed the Complainant, as a means to impeach the Complainant's credibility.

COMPENSATORY DAMAGES; COST OF BUS TICKET HOME

In Pollock v. Continental Express , ARB Nos. 07-073, 08-051, ALJ No. 2006-STA-1 (ARB Apr. 7, 2010), the Complainant was entitled, as a compensatory damages award, to the cost of his bus ticket home after being terminated in violation of the whistleblower provision of the STAA.

[STAA Digest IX B 2 b iii]
BACK PAY AWARD TERMINATION DATE IS DATE OF BONA FIDE, UNCONDITIONAL OFFER OF REINSTATEMENT, NOT WHEN THE BACK PAY AWARD IS REMITTED

In Pollock v. Continental Express , ARB Nos. 07-073, 08-051, ALJ No. 2006-STA-1 (ARB Apr. 7, 2010), the ALJ erred in awarding back pay for the period from termination (discounting subsequent interim employment) through the date the Respondent remits payment of the award plus prejudgment interest. Rather, the back pay liability ends when the employer makes a bona fide, unconditional offer of reinstatement (or, in very limited circumstances, when the employee rejects a bona fide offer) plus pre- and post-judgment interest.

[STAA Digest IX C]
FEE PETITION; REDUCTION OF HOURLY RATE AND HOURS REQUESTED BASED ON LACK OF COMPLEXITY OF CASE AND OTHER FACTORS

In Pollock v. Continental Express , ARB Nos. 07-073, 08-051, ALJ No. 2006-STA-1 (ARB Apr. 7, 2010), the ARB found that the ALJ's determination to reduce the Complainant's counsel's requested hourly rate of $275per hour to $250 per hour was a reasonable exercise of his discretion where the ALJ found that the case presented no novel issues or complicated facts, the hearing lasted only three days, and the Board had approved the previous rate of $250. The ARB also approved the ALJ's determination that counsel's time entries on the fee petition were excessive given the lack of complexity of the case. The ALJ, taking into consideration the attorney's expertise and experience, the quality of the brief, and the lack of complex issues, excluded any time on brief writing over three working days as excessive. The ALJ also reduced the number of hours allotted for writing a reply brief, and for reviewing the hearing transcript. The ALJ also reduced the number of hours requested for Complainant's counsel's non-attorney associate's presence at the hearing. The ARB found that the ALJ had fully analyzed the Respondent's objections to the fee petition, had properly applied the lodestar method to his analysis, and that substantial evidence supported the ALJ's findings.

 

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Summary :

ARB found that substantial evidence supported the ALJ's finding that the Complainant was fired for poor performance and not for protected activity.

 

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