Administrative Review Board - April 2021 | U.S. Department of Labor

McCurry v. Kenco Logistic Services, LLC, ARB No. 2021-0009, ALJ No. 2019-FDA-00015 (ARB Apr. 30, 2021) (Order Vacating and Remanding)

SUMMARY DECISION; FMSA RETALIATION CASE REMANDED TO ALJ WHERE HE HAD GRANTED SUMMARY DECISION ON A GROUND NOT RAISED BY RESPONDENT’S MOTION FOR SUMMARY DECISION, AND THE ALJ HAD NOT GIVEN NOTICE THAT HE WAS CONSIDERING SUMMARY DECISION ON THAT OTHER GROUND

In McCurry v. Kenco Logistic Services, LLC, ARB No. 2021-0009, ALJ No. 2019-FDA-00015 (ARB Apr. 30, 2021), Complainant filed a Food Safety Modernization Act (FSMA) complaint alleging that Respondent retaliated by temporarily denying her long-term disability benefits. Complainant had been receiving short-term disability payment. Following a layoff, Complainant elected to continue health care benefits pursuant to COBRA. Hartford Life and Accident Insurance Company administered the plan. After exhausting short-term benefits, Complainant converted to long-term benefits. In 2017, Hartford terminated the benefits based on an erroneous determination that Complainant was cable of part-time work. Hartford reversed the decision in 2019. Complainant filed a number of legal actions grounded in the temporary termination of benefits. In a discrimination case, a U.S. District Court granted summary judgment in Respondent’s favor. In the interim in 2018, Complainant had filed a FSMA complaint with OSHA, which dismissed the complaint because Hartford, and not Respondent, made decisions concerning administration of the benefits plan.

Before the ALJ in the FSMA administrative case, Respondent filed a motion for summary decision based on (1) collateral estoppel based on the summary judgment on the same factual issues by the district court; and (2) lack of jurisdiction over an ERISA dispute against a third-party benefits administrator. The ALJ ordered Complainant to respond to Respondent’s motion and to show cause why her request for a FSMA hearing should not be dismissed. When the ALJ granted the motion, he found that Complainant failed to present any evidence establishing that the protected activity could have been a contributing factor in the adverse action, given it was Hartford’s employees that took all actions on the disability benefits, and there was no evidence that Respondent was involved in the decision to terminate Complainant’s benefits, or that anyone at Hartford was aware of Complainant’s alleged protected activity.

On appeal, Complainant contested the ALJ’s grant of summary decision on grounds not raised by Respondent. The ARB first observed that under DOL’s Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges at 29 C.F.R. § 18.72(f)(2), an ALJ may grant summary decision “on grounds not raised by a party” only after providing the parties “notice and a reasonable time to respond.” The ARB found that the ALJ had not apprised the parties that he was considering whether there was a genuine issue of material fact, thereby prejudicing Complainant because she was unable to respond to the ALJ’s rationale for granting summary decision. The ARB thus vacated and remanded for further proceedings to allow the parties the opportunity to respond to the ALJ’s grounds for granting decision.

FAILURE OF SELF-REPRESENTED LITIGANT’S OPENING BRIEF WITH THE ARB TO ARGUE AGAINST GROUND CITED BY ALJ FOR SUMMARY DECISION OR TO CITE TO FACTS IN THE RECORD TO SUPPORT HER APPEAL; ARB DECLINES TO DISMISS APPEAL BECAUSE PRO SE LITIGANTS ARE HELD TO A LESSER STANDARD ON PROCEDURAL MATTERS, AND BECAUSE COMPLAINANT HAD IDENTIFIED THE ALJ’S PROCEDURAL ERROR

In McCurry v. Kenco Logistic Services, LLC, ARB No. 2021-0009, ALJ No. 2019-FDA-00015 (ARB Apr. 30, 2021), Respondent contended that the ARB should dismiss Complainant’s appeal because her initial brief failed to conform to FRAP 28(a), which requires the brief to contain the “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” The ARB rejected this contention:

While Complainant’s initial brief perhaps fails to meet the procedural standards for submissions to the Board, we note that the Board holds pro se litigants “to lesser standards than legal counsel in procedural matters” and gives them “a certain degree of adjudicative latitude.” Complainant identified the ALJ’s procedural error in her initial brief and more thoroughly discussed the issue in her reply brief. Because of Complainant’s pro se status and the procedural error made by the ALJ, we decline to dismiss Complainant’s appeal.

Slip op. at 7 (footnotes omitted).

The Residences at Boland Place, ARB No. 2020-0031 (ARB Apr. 30, 2021) (per curiam) (Decision and Order)

DBA WAGE DETERMINATION; ARB FINDS THAT THE ADMINISTRATOR USED REASONABLE DISCRETION TO DETERMINE THAT PROJECT WAS A FIVE-STORY BUILDING SUBJECT TO “BUILDING” CONSTRUCTION WAGE RATE; ARB DECLINED TO CONSIDER ARGUMENT IN FAVOR OF A “SPLIT-WAGE” DETERMINATION BECAUSE THAT ARGUMENT WAS FIRST RAISED ON APPEAL

In The Residences at Boland Place, ARB No. 2020-0031 (ARB Apr. 30, 2021) (per curiam), the Wage and Hour Division Administrator made a determination that a project to construct “The Residences at Boland Place” was subject to a “building” construction wage rate determination because it was a five-story building. On appeal, Petitioners argued that it was a four-story building subject to a “residential” wage rate, or that at least the project should have “split-wage” wage determination because the wood frame structure should be classified as residential. The Administrator had rejected Petitioner’s argument that a Club Level and Sub Level should be considered a single level or story. The ARB held that the Administrator’s ruling that a “building” wage determination applied to Boland Place was a reasonable exercise of her discretion. The ARB declined to address whether the project was entitled to a “split-wage” determination because the issue was first raised on appeal.

Burt v. National Railroad Passenger Corp. (Amtrak), ARB No. 2020-0042, ALJ No. 2018-FRS-00015 (ARB Apr. 29, 2021) (per curiam) (Decision and Order Affirming in Part, Vacating and Reversing in Part)

ADVERSE EMPLOYMENT ACTION UNDER THE FRSA; SUPERVISOR’S ACTION OF CANCELLING OVERTIME IN ORDER TO UNDERMINE COMPLAINANT’S POSITION AS A UNION REPRESENTATIVE WAS AN ADVERSE ACTION UNDER BOTH THE “MORE THAN TRIVIAL” AND “MATERIALITY” TESTS

In Burt v. National Railroad Passenger Corp. (Amtrak), ARB No. 2020-0042, ALJ No. 2018-FRS-00015 (ARB Apr. 29, 2021) (per curiam), Complainant was an electrical technician for Respondent. In 2013, he reported to supervisors that battery chargers were being installed improperly and filed an OSHA complaint about the issue. OSHA investigated. Complainant later made a confidential complaint on Respondent’s “EEOC” Ethics and Compliance Hotline, stating that a supervisor harassed him and co-worker because of the safety complaint. A superintendent revealed to the supervisor that Complainant made the “EEOC” complaint. In 2016, Complainant became a Union shop steward, which required Complainant to interact with the supervisor against whom the prior complaint had been lodged. When accompanying a co-worker to confront the supervisor about an issue concerning overtime assignments, the supervisor and Complainant got into an argument and had to be separated by a foreman. The supervisor added: “Next time you call the EEOC, leave your name with it.” The supervisor then announced to the men on his line that he was cancelling overtime. Complainant was stressed out over the incident and concerned that the supervisor made it look like it was his fault that overtime had been discontinued.

On appeal, Respondent argued that the verbal altercation between Complainant and his supervisor was not an adverse action under the FRSA. The ARB noted, however, that the ALJ found that the subsequent cancellation of overtime was the adverse action. The ARB agreed with the ALJ that the cancellation of overtime “undermined Complainant’s position as a union representative and was made to harass and humiliate him, which is more than a de minimus harm” and was therefore an adverse employment action. Slip op. at 11. Respondent argued that the ARB should not apply the “more than trivial test” and instead apply the Title VII “materiality test.” The ARB, however, found that Respondent had not persuaded it that its actions would not be adverse action under either test.

CONTRIBUTING FACTOR CAUSATION; FOUR YEAR GAP BETWEEN SAFETY COMPLAINT IN 2013 AND VERBAL ALTERCATION WITH SUPERVISOR THAT RESULTED IN ADVERSE EMPLOYMENT ACTION IN 2017; SUPERVISOR’S REFERENCE TO 2013 SAFETY COMPLAINT SUFFICENT TO ESTABLISH CONTRIBUTING FACTOR

On appeal, Respondent argued that the roughly four-year gap between the protected activity and the verbal altercation was too large to find that it contributed to the decision to cancel overtime, and that other factors motivated the supervisor, such as the supervisor’s frustration with the co-worker for involving Complainant as a union representative in the overtime dispute.

The ARB, however, found that substantial evidence supported the ALJ’s finding of contributory factor causation. The ALJ had noted that supervisor referenced the EEOC complaint during the altercation, and that the 2013 complaint had been made after Complainant heard this supervisor say that Complainant was “f—cking up 30 track.” The ALJ noted that: 1) the supervisor knew about the safety complaint; 2) the supervisor’s comment related to the safety complaint; 3) Complainant had made an EEOC complaint about the supervisor’s 2013 conduct relating to the safety complaint; and 4) the EEOC complaint was clearly on the supervisor’s mind during the 2017 altercation. The ARB stated that while “Respondent argues that there could have been other motivations for Ward’s behavior, Complainant needs only to prove that the protected activity contributed to the adverse action as a factor, not that it was the only or main motivation for the adverse action.”

AFFIRMATIVE DEFENSE; RESPONDENT’S ARGUMENT—THAT ITS SUPERVISOR HAD NOT DEMONSTRATED A MOTIVATION TO RETALIATE AGAINST COMPLAINANT GIVEN THAT YEARS HAD PASSED SINCE COMPLAINANT’S SAFETY COMPLAINT--AND THAT THE ADVERSE ACTION WAS ENTIRELY CONSISTENT WITH THE SUPERVISOR’S REPUTATION FOR AGGRESSIVE BEHAVIOR AND DISLIKE OF BEING QUESTIONED—WAS INSUFFICIENT TO MEET RESPONDENT’S CLEAR AND CONVINCING EVIDENCE STANDARD WHERE SUPERVISOR CLEARLY HAD COMPLAINANT’S EARLIER PROTECTED ACTIVITY ON HIS MIND WHEN TAKING THE ADVERSE ACTION

Respondent argued that it proved by clear and convincing evidence that the supervisor would have cancelled the overtime regardless of whether Complainant had ever engaged in protected activity, citing evidence that the supervisor had not demonstrated any motivation to retaliate against Complainant for several years after the EEOC complaint, and that the 2017 altercation was entirely consistent with his reputation for aggressive behavior and dislike of being questioned.

The ARB found the evidence relevant, but that it was not sufficient to reverse the ALJ’s finding that Respondent did not meet its heightened burden for the affirmative defense. The supervisor had made a comment to Complainant about leaving his name on his next EEOC complaint, which demonstrated that the protected activity was on the supervisor’s mind during the incident.

COMPENSATORY DAMAGES FOR MEDICAL DISTRESS; ALTHOUGH LATER INCIDENTS FURTHER CONTRIBUTED TO THE DISTRESS, THE RECORD AS A WHOLE SHOWED THAT THE DISTRESS ORIGINATED AT THE TIME OF THE ADVERSE EMPLOYMENT ACTION; BUT-FOR CAUSATION

The next morning, Complainant was escorted by security to the conference room to meet with the General Foreman and the Manager of Mechanical Operations, where he explained his side of the story. Complainant said that he was frightened and humiliated by the experience. Complainant was later presented with a counseling letter for failure to perform train inspections in a timely manner, which Complainant believed to be part of a plan to fire him. After these incidents, Complainant was diagnosed by his primary care physician, Dr. Wilson, with debilitating anxiety-- and upon the physician’s advice--Complainant took extended sick leave until he found a lower paying position with Respondent at a different facility.

On appeal, Respondent contended that the record did not establish that the altercation caused the stress disorder. Respondent cited Complainant’s testimony that he was only “a little stressed” after the altercation with his supervisor. Respondent also cited evidence that Complainant had not sought medical help “until after the police escort and counseling letter, which were not found to be retaliatory acts. Respondent also references Dr. Wilson’s testimony, which failed to state whether the incident had any lasting impact on Complainant’s mental health or when the symptoms of the stress disorder began.” Slip op. at 13. The ARB, however, found that substantial evidence supported the ALJ’s damages award for loss of wages and medical expenses.

As discussed by the ALJ, however, Complainant’s and Dr. Wilson’s testimony demonstrated that Complainant began suffering from a diagnosed anxiety disorder that was not present prior to the altercation with Ward. Though the record suggests that subsequent incidents at work, including the written counseling letter, further contributed to Complainant’s stress, the evidence in the record as a whole demonstrates that the incident with Ward initiated Complainant’s anxiety, which worsened and eventually caused him to stop working. In other words, if the discrimination from Ward had never occurred, Complainant would not have needed to seek medical treatment and been out of work for a year.

Id. at 14 (footnote omitted).

COMPENSATORY DAMAGES; ARB VACATES AWARD OF REIMBURSEMENT FOR LIENS COMPLAINANT HAD TAKEN OUT FOR NOT RECEIVING INCOME; ALJ ALREADY AWARDED LOST WAGES, AND THE LIEN REIMBURSEMENT WOULD BE A DOUBLE RECOVERY

In Burt v. National Railroad Passenger Corp. (Amtrak), ARB No. 2020-0042, ALJ No. 2018-FRS-00015 (ARB Apr. 29, 2021) (per curiam), the ARB affirmed the ALJ’s determination that Respondent violated the FRSA when a supervisor cancelled overtime after an altercation with Complainant and a co-worker. The overtime cancellation had undermined Complainant’s authority as a union representative. The ALJ found that Complainant’s earlier FRSA protected activity was a contributing factor in the adverse action. Complainant later become so distressed that took extended medical leave before returning to work for Respondent at a different facility at a lower rate of pay. As part of the damages award, in addition to an award for lost wages, the ALJ ordered reimbursement of Complainant for liens he took out he had taken out with the Railroad Retirement Board and AETNA to pay for his expenses while he was out of work and had no income.

On appeal, the ARB vacated and reversed the lien award:

For the two liens Complainant had taken out to support himself while he was not receiving income, the ALJ awarded reimbursement of the liens in addition to the award for lost wages. The lost wages award enabled Complainant to pay back the liens he took out. By awarding both the lost wages and reimbursement of the liens, Complainant received a windfall by effectively being able to keep the loans without having to pay them back himself, which placed him in a better spot than he would have been if the retaliation had never occurred. The FRSA does not allow complainants to receive double recoveries.

Slip op. at 14 (footnote omitted).

AFFIRMATIVE RELIEF; AN ALJ MAY ORDER A COUNSELING LETTER TO BE SEALED IN A COMPLAINANT’S PERSONNEL RECORD IF THE LETTER WAS RETALIATORY UNDER THE FRSA; HOWEVER, WHERE THE ALJ FOUND THAT THE LETTER WAS NOT RETALIATORY, THE ARB REVERSED AN ALJ’S ORDER TO SEAL THE LETTER

In Burt v. National Railroad Passenger Corp. (Amtrak), ARB No. 2020-0042, ALJ No. 2018-FRS-00015 (ARB Apr. 29, 2021) (per curiam), the ARB affirmed the ALJ’s determination that Respondent violated the FRSA when a supervisor cancelled overtime after an altercation with Complainant and a co-worker. The overtime cancellation had undermined Complainant’s authority as a union representative. The ALJ found that Complainant’s earlier FRSA protected activity was a contributing factor in the adverse action. Complainant was later presented with a counseling letter for failure to perform train inspections in a timely manner, which Complainant believed to be part of a plan to fire him. As part of requested relief, Complainant asked the ALJ to order expungement of the counseling letter from Respondent’s records. The ALJ noted that in Leiva v. Union Pacific R.R. Co., ARB No. 2018-0051, ALJ No. 2017-FRS-00036 (ARB May 17, 2019), the ARB held that expungement is not a realistic remedy because employers are charged with maintaining records, but also held that placing the file in a restricted folder not to be used in future personnel files is acceptable. The ALJ thus ordered Respondent to restrict access to the file and prohibited it from using the file in future personnel actions.

On appeal, the ARB reversed because the ALJ had found that the counseling letter had not violated the FRSA whistleblower provision. The ARB stated that the order to seal the letter did not put Complainant in the position he would have been in if the supervisor had not retaliated against him.

PUNITIVE DAMAGES; ARB AFFIRMS ALJ’S AWARD OF $35,000 IN PUNITIVE DAMAGES WHERE SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDINGS THAT RESPONDENT’S BUSINESS CULTURE RECKLESSLY DISREGARDED A COMPLAINANT’S ANONYMITY WHEN MAKING A CONFIDENTIAL REPORT, AND THAT RESPONDENT NEEDLESSLY HUMILIATED COMPLAINANT BY ARRANGING TO HAVE HIM ESCORTED BY POLICE TO A MEETING ABOUT AN ALTERCATION OVER OVERTIME ASSIGNMENT

In Burt v. National Railroad Passenger Corp. (Amtrak), ARB No. 2020-0042, ALJ No. 2018-FRS-00015 (ARB Apr. 29, 2021) (per curiam), the ARB affirmed the ALJ’s determination that Respondent violated the FRSA when a supervisor cancelled overtime after an altercation with Complainant and a co-worker, in order to undermine Complainant’s authority as a union representative. Complainant’s earlier 2013 FRSA protected activity was a contributing factor in the adverse action. The supervisor knew about the 2013 protected activity because a superintendent revealed to the supervisor that Complainant made the hotline complaint. In addition, Complainant had been escorted by security personnel the day after the 2017 altercation to a conference room to give his side of the story to supervisors about the overtime dispute. Complainant had found the police escort frightening and humiliating. Complainant requested punitive damages.

The ALJ found that Respondent’s “culture recklessly disregards a complainant’s anonymity when he or she engages in protected activity or other confidential reporting,” and that the police escort was evidence of Respondent’s problematic culture relating to protected activity. Slip op. at 9. Finding that these actions may have a chilling effect on the complaint process, the ALJ awarded $35,000 in punitive damages.

On appeal, Respondent argued that the disclosure of Complainant’s identity as a whistleblower and the altercation with the supervisor (Ward) were “one-off” occurrences and were not condoned by management. Respondent noted that Complainant had not been discouraged enough not to file complaints with EEOC and OSHA, and that the police escort was not found by the ALJ to be connected to any protected activity. The ARB was not persuaded by these arguments.

First, the argument that punitive damages were not warranted because Complainant was still able to file complaints is unavailing, as punitive damages are not awarded based on whether or not the employee yields to the employer’s wrongful conduct. Second, substantial evidence supports the ALJ’s finding that “it is part of Amtrak’s culture to recklessly disregard a complainant’s privacy when he or she engages in protected activity or other confidential reporting.” The record demonstrates that Ward was apprised of Complainant’s safety and EEOC complaints as a result of a workplace culture that disregards complainant anonymity, which led to the altercation and Ward’s retaliation against Complainant. Testimony from managers for Respondent demonstrated lack of care or ambivalence toward complainant confidentiality at the workplace. The ALJ did not find that Amtrak’s police escort was an adverse action, in large part because the record does not establish who called the police. However, the ALJ observed that obviously “someone from Amtrak called the police, and Amtrak managers allowed the police to publicly escort a union representative to and from discussions about an incident with an Amtrak manager; in effect, publicly harassing [and humiliating] Complainant for doing his job as a union representative.” As the ALJ found, “[n]othing in the record established a legitimate reason for police presence at the meeting.” The ALJ also found that the police escort demonstrated a problematic part of Respondent’s culture relating to protected activity, as the incident could have had a chilling effect on other workers.

Id. at 16 (footnotes omitted). The ARB thus affirmed the award of punitive damages. Respondent also contested the amount of the award, arguing that the ALJ failed to support how the amount was determined. The ARB determined, however, that the ALJ had not abused her discretion in determining the amount, noting that she had cited previous punitive damages award amounts affirmed the ARB. The ALJ had provided “brief parentheticals describing the employer’s conduct, to demonstrate how punitive damages awards were determined on a factual basis.” Id. at 17, n.97.

Vudhamari v. Advent Global Solutions, ARB No. 2021-0018, ALJ No. 2018-LCA-00022 (ARB Apr. 26, 2021) (per curiam) (Decision and Order)

MOTION TO DISQUALIFY ALJ DENIED WHERE IT WAS GROUNDED IN PROSECUTING PARTY’S BELIEF THAT ALJ HAD MISMANAGED THE CASE RATHER THAN A SHOWING OF BIAS BY THE ALJ

In Vudhamari v. Advent Global Solutions, ARB No. 2021-0018, ALJ No. 2018-LCA-00022 (ARB Apr. 26, 2021) (per curiam), the ARB adopted the ALJ’s Decision and Order on Remand and Ruling on Motion for Disqualification, and dismissed Vudhamari’s LCA complaint. In his original decision, the ALJ had granted Respondent’s motion for summary decision on the ground that Respondent had already paid, in response to the Administrator’s determination, the back wages owed, and the other relief sought by Vudhamari was not relief he was entitled to, or which the ALJ had the authority impose. The ARB remanded for the ALJ to provide notice to the pro se prosecuting party of the rules for responding to the opposing party’s motion for summary decision. Vudhamari presented no new evidence or arguments, and consequently, the ALJ ratified his earlier Decision and Order. The ALJ also denied Vudhamari’s motion to disqualify the ALJ because it was grounded only in purported mismanagement of the case by the ALJ, and not any showing of personal or extra-judicial bias of the ALJ against the Prosecuting Party. The ALJ ordered Respondent to pay pre- and post-judgment interest on the back pay.

Administrator, Wage and Hour Div., USDOL v. Broadgate, Inc., ARB No. 2019-0079, ALJ No. 2019-LCA-00013 (ARB Apr. 20, 2021) (per curiam) and Administrator, Wage and Hour Div., USDOL v. Spate Business Solutions, LLC, ARB No. 2019-0083, ALJ No. 2019-LCA-00002 (ARB Apr. 20, 2021) (per curiam)

ARB FINDS THAT RESPONDENT FAILED TO PRESENT EVIDENCE TO REBUT PRESUMPTION OF REGULARITY THAT DETROIT DISTRICT DIRECTOR HAD DELEGATED, OR REDELEGATED, AUTHORITY TO ISSUE H-1B DETERMINATION LETTERS ON BEHALF OF THE ADMINISTRATOR

In Administrator, Wage and Hour Div., USDOL v. Broadgate, Inc., ARB No. 2019-0079, ALJ No. 2019-LCA-00013 (ARB Apr. 20, 2021) (“Broadgate”), the Administrator appealed the ALJs Decision and Order which, in part, reversed the Administrator’s Determination that Broadgate willfully and substantially failed to provide notice of the filing of LCAs in violation of 20 C.F.R. § 655.734 upon a finding that the Detroit District Director was not delegated or re-delegated the authority to issue the Administrator’s Determination. Id., slip op. at 1, 5, 19. In Administrator, Wage and Hour Div., USDOL v. Spate Business Solutions, LLC, ARB No. 2019-0083, ALJ No. 2019-LCA-00002 (ARB Apr. 20, 2021) (“Spate”), the Respondent appealed the ALJs Decision and Order finding that the Detroit District Director was presumed to have been delegated or re-delegated the authority to issue the Administrator’s Determination. Id. at 6.

The ARB reversed, in part, and remanded, in part, the Broadgate Decision and Order, and affirmed the Spate Decision and Order, holding that the Detroit District Director was presumed to have been delegated or re-delegated the authority to issue the Administrator’s Determinations. Id. at 20. In doing so, the ARB found that the presumption of regulatory applied to these matters, and stood for the proposition that “if the law imposes a relevant, official duty on an official, [the tribunal will] presume that the official has been properly appointed to that position and performed that duty, unless there is evidence to the contrary.” Id. at 12.

The ARB found that “[t]he distinction between a subdelegation (or re-delegation) in-house to subordinates and delegations to outside entities is paramount,” and that “[t]he caselaw reflects that courts permit subdelegations to subordinates, even where the enabling statute is silent, so long as the enabling statute and its legislative history do not indicate otherwise.” Id. at 15. The ARB stated that the statutory basis for H-1B enforcement is silent regarding delegations or re-delegations of authority, and, importantly, Secretary’s Order No. 01-2014 expressly permitted re-delegation of H-1B enforcement authority. Id. at 16. The ARB found dispositive the fact that the Administrator’s Determinations in LCAs “are not the product of the administrative hearing process, but rather they are a product of investigations into employers’ compliance with representations made on LCAs,” and that the Administrator’s Determinations are “only the first step” to final agency action. Id. The ARB thus found that the Broadgate ALJ should have presumed that the Detroit District Director “was both properly appointed and acted in accordance with the statutory and regulatory requirements” and was “delegated or re-delegated the authority to issue the Administrator’s Determination unless there was evidence to the contrary,” as Broadgate concerned “an individual acting on behalf of the DOL, in performance of a legal duty.” Id. at 17.

The ARB found that the Respondents’ contention that the Detroit District Director “was not explicitly delegated or re-delegated the authority via a statute, regulation, order, or delegation memorandum” insufficient to rebut the presumption on its own, as no evidence, “let alone clear evidence,” was presented demonstrating that the Detroit District Director was not delegated or re-delegated that authority. Id. at 18.

The ARB thus affirmed the Spate Decision and Order, and remanded Broadgate for a determination on the number of violations incurred, the nature and severity of violations, the amount of civil money penalties for any violations, and any other applicable remedies, including debarment, as the ALJ did not reach these questions. Id. at 18–19.

[Editor’s Note: Broadgate and Spate were consolidated on appeal due to the similarity of the issues raised and contradictory conclusions of the ALJs in their respective decisions.]

Samaroo v. Bank of New York Mellon, ARB No. 2021-0021, ALJ No. 2019-SOX-00010 (ARB Apr. 12, 2021) (per curiam) (Order Dismissing Complaint)

The ARB dismissed the SOX complaint because Complainant filed a notice of the filing of an original action with the United States District Court for the Eastern District of New York.

Barton v. IFPTE Local 4, Portsmouth Naval Shipyard, ARB No. 2021-0025, ALJ No. 2020-SOC-00002 (ARB Apr. 8, 2021) (per curiam)
(Decision and Order Approving Settlement and Dismissing Complaint with Prejudice)

The ARB adopted the ALJ's Recommended Decision and Order approving the parties' settlement agreement.

Thibeaux v. Edward Jones Investments, ARB No. 2021-0008, ALJ No. 2017-SOX-00056 (ARB Apr. 6, 2021) (per curiam) (Decision and Order)

TIMELINESS OF SOX COMPLAINT; TELEPHONE CALL TO OSHA 800 NUMBER WITHIN 180 DAYS OF COMPLAINANT’S LEARNING THAT HE WOULD NOT BE CONSIDERED FOR RE-EMPLOYMENT, IN WHICH COMPLAINANT NEITHER IDENTIFIED HIMSELF NOR RESPONDENT, WAS NOT SUFFICIENT TO ESTABLISH FILING OF A TIMELY ORAL COMPLAINT

TIMELINESS OF SOX COMPLAINT; “EXACT-CLAIM-IN-WRONG-FORUM” GROUND FOR EQUITABLE TOLLING NOT WARRANTED WHERE COMPLAINANT CONTACTED FINRA ONLY AFTER FIRST CALLING OSHA AND BEING TOLD THAT HE HAD ALREADY MISSED THE DEADLINE FOR FILING HIS SOX COMPLAINT

In Thibeaux v. Edward Jones Investments, ARB No. 2021-0008, ALJ No. 2017-SOX-00056 (ARB Apr. 6, 2021) (per curiam), the ARB adopted the ALJ’s Decision and Order in which the ALJ concluded that Complainant had not filed his SOX complaint within the required 180 days of any alleged adverse action, and that no grounds for equitable tolling existed. The remainder of this casenote is derived from the ALJ’s decision. Thibeaux v. Edward Jones Investments, 2017-SOX-00056 (ALJ May 8, 2020).

Complainant alleged that he resigned from employment with Respondent but had applied for a different position 8 or 9 months later. He filed multiple whistleblower complaints after Respondent informed him that other candidates were a better match for the job and that it would be unable to give him further consideration for the job.

The ALJ determined when ruling on Respondent’s motion to dismiss, that rejection of Complainant’s application for re-employment by Respondent was neither equivocal nor indefinite, and thus the deadline for filing began on that date. The ALJ also determined that equitable tolling did not apply based on Complainant’s filing of a FINRA complaint because the bill of particulars specifically disavowed that retaliation was included in that complaint. The ALJ, however, presided over an evidentiary hearing on whether the facts as alleged by Complainant supported a finding that the complaint was filed within 180 days of the rejection of the application for re-employment. Complainant argued (1) that he made an oral complaint to OSHA by telephone within the 180 day period, and (2) that his filings with FINRA and the SEC tolled the filing period.

There was an absence of documentary evidence from OSHA on whether Complainant made the telephone contact, but the ALJ credited Complainant’s testimony that he did make such a call to the OSHA toll-free 1-800 number. However, Complainant’s own testimony and the circumstantial evidence of record indicated that Complainant neither identified himself nor Respondent. The ALJ found that this was not sufficient to establish the filing of an oral complaint within the limitations period.

As to the tolling argument, the ALJ noted that he had already found that Complainant’s bill of particulars specifically excluded retaliation as a basis for the FINRA complaint. The ALJ determined that the bill of particulars did not even mention an SEC complaint. The ALJ, however, found that Respondent would not be prejudiced by litigating the merits of Complainant’s tolling arguments. The ALJ concluded that the evidence fell far short of establishing that Complainant mistakenly filed the precise statutory claim in the wrong forum. Rather, Complainant first called OSHA, was told that the time limit for filing a complaint was not one year, but six months, so he would be too late; and Complainant then decided to take his information to FINRA. Nor was the record sufficient to show that extraordinary circumstances justified equitable tolling.

Twyman v. TaxMasters, Inc., ARB No. 2011-031, ALJ No. 2010-SOX-00055 (ARB Apr. 5, 2021) (Dismissal Order)

BANKRUPTCY AUTOMATIC STAY PROVISION; SOX CASE DISMISSED WHERE RESPONDENT STOPPED FILING QUARTERLY STATUS REPORTS ON BANKRUPTCY PROCEEDING, AND WHERE NO PARTY RESPONDED TO ARB’S ORDER TO SHOW CAUSE WHY THE CASE SHOULD NOT BE DISMISSED

In Twyman v. TaxMasters, Inc., ARB No. 2011-031, ALJ No. 2010-SOX-00055 (ARB Apr. 5, 2021), while an appeal was pending before the ARB on Complainant’s SOX retaliation complaint, the Respondents filed in March 2012 for bankruptcy protection, triggering the automatic stay provision of the Bankruptcy Code. 11 U.S.C. §§ 362(a)(1), (c)(2) (2020). The ARB stayed the appeal. In August 2018, the ARB ordered TaxMasters to provide quarterly status updates on the bankruptcy proceedings. The most recent report received by the ARB was in August 2019. In February 2021, the ARB issued an Order to Show Cause ordering the parties to explain why the case should not be dismissed on the grounds of abandonment, and cautioning that failure to timely respond may result in dismissal of the case without further order. The parties did not respond. Citing its authority to effectively manage its docket, the ARB dismissed the case.

Administrative Review Board - April 2021