USDOL/OALJ Reporter: ARB Decision Caselist - April 2011

[Nuclear and Environmental Digest IX H 4]
STRING OF VEXATIOUS, HARASSING AND DUPLICATIVE COMPLAINTS; ARB'S AUTHORITY TO IMPOSE CONDITIONS AND RESTRICTIONS ON FUTURE APPELLATE REVIEW

In Saporito v. Florida Power and Light Co. , ARB Nos. 09-072, -128, -129, -141 ALJ Nos. 2009-ERA-1, 6, 9, 12, (ARB Apr. 29, 2011), the Complainant had filed a series of ERA whistleblower complaints alleging that the Respondent's attorney's publically available comments before the NRC, or responses filed before the Florida Public Service Commission blacklisted him or his company from obtaining employment with other employers. In each case, the ALJ had granted summary decision in favor of the Respondents. On appeal the ARB noted that it was public knowledge that the Complainant had been discharged for cause by the Respondent and was not eligible for rehire. The ARB found that the Complainant had not alleged that the comments or the response adversely affected his compensation, terms, conditions, and privileges of employment or that any potential employers declined to hire him due to the comments or response at the time of his complaints. The ARB found that the Complainant's complaints had been without merit and were frivolous.

The ARB also found that "the record justifies the imposition of filing restrictions related to FPL due to Saporito's string of vexatious, harassing, and duplicative complaints against FPL, without a good faith expectation of prevailing, and subsequent appeals to the Board that are wholly without merit, causing unnecessary expense to FPL and placing a needless burden on the dockets of the OALJ and the Board." The Board noted that the right of access to the courts is neither absolute nor unconditional, and that conditions and restrictions may be imposed where necessary to preserve judicial resources for other persons. Consequently, the ARB put the Complainant on notice that it would not address the merits of any future petition for review from him against the Respondent or the Respondent's employees, unless he was represented by counsel, and included in his petition for review (1) a list of all complaints and appeals currently pending or filed previously with the OALJ and the ARB and the current status or disposition of those cases; (2) a list of any outstanding injunctions or orders limiting his access to the OALJ for any reason; and (3) a sworn affirmation by the Complainant that sufficiently explains how such petition and the underlying complaint are not essentially the relitigation of previous claims brought against the Respondent.

[STAA Digest IX B 1]
DAMAGES; ALJ'S RESPONSIBILITY TO EXPLAIN TO PRO SE COMPLAINANT NEED TO PROFFER EVIDENCE TO SUPPORT BACK PAY AND OTHER DAMAGES

In Kennedy v. Advanced Student Transportation , ARB No. 09-145, ALJ No. 2009-STA-49 (ARB Apr. 28, 2011), the ALJ had explained at the hearing the pro se Complainant's burden of proof to establish the elements of her STAA complaint. The ALJ did not, however, mention or explain the evidence necessary to establish the relief to which the Complainant would be entitled should she prevail. The ALJ ultimately found that the STAA complaint had merit, and awarded reinstatement. The ALJ, however, did not award back pay because the Complainant had not presented any evidence on that element of relief. The ARB remanded to permit the Complainant to submit evidence on back pay and any other damages to which she was entitled. The ARB stated

Although we sympathize with the ALJ's concern that he not become the advocate for a pro se party, in this case we find that it would not be overreaching for the ALJ to explain to Kennedy that she must submit evidence in support of her claim of back pay (and any other damages), just as he explained to her the burden of proof she must carry to prevail on her complaint. We find this to be especially compelling given the STAA's [mandate of back pay and other compensatory damages once it had been determined that the employer violated the STAA]."

USDOL/OALJ Reporter at 10.

[STAA Digest IX A 4 a]
FAILURE TO REINSTATE; DIRECT COMPLAINT TO OSHA RATHER THAN ALJ OR ARB

A complainant should direct any concerns about a respondent's compliance with a reinstatement order to the OSHA office that investigated the complaint. See Kennedy v. Advanced Student Transportation , ARB No. 09-145, ALJ No. 2009-STA-49, USDOL/OALJ Reporter at n.69 (ARB Apr. 28, 2011), the ALJ

Approval of settlement agreement.

Order summarily adopting ALJ's recommendation to dismiss complaint for failure to prosecute.

The Complainant sought reconsideration of the ARB's decision affirming dismissal the complaint on the ground that handwritten notes in the record, which were apparently notations by the ALJ, established that the ARB's decision did not reflect the ALJ's true findings. The ARB denied the motion finding that even if the notations were those of the ALJ, they had no effect on the ALJ's signed decision.

Summary affirmance of ALJ's Amended Decision and Order on Stipulated Damages.

Denial of interlocutory review of ALJ's rulings on procedural and discovery matters.

ALJ decision under expedited procedures of 41 C.F.R. § 60-30.21 to 60-30.37 (2010) became final Administrative Order when Board did not issue a final order within 30 days after the expiration of the time for filing exceptions.

Dismissal of SOX complaint before the DOL based on filing of complaint in federal district court.

Denial of reconsideration of arguments already considered and rejected.

Summary dismissal of second motion for reconsideration.