Administrative Review Board - May 2022 | U.S. Department of Labor

The following case summaries were created by Administrative Review Board staff.

Alston v. HH Express LLC, ARB No. 2022-0011, ALJ No. 2021-STA-00065 (ARB May 6, 2022) (per curiam) (Decision and Order Dismissing Petition for Review)

In Alston v. HH Xpress LLC, ARB No. 2022-0011, ALJ No. 2021-STA-00065 (ARB May 4, 2022) (Decision and Order Dismissing Petition for Review) (per curiam), the ARB dismissed Complainant’s appeal under the Surface Transportation Assistance Act of 1982, 49 U.S.C. § 31105, after the Complainant failed to show good cause as to why he did not timely file his opening brief with the Board.

Mansell v. Tennessee Valley Authority, ARB No. 2020-0060, ALJ No. 2019-ERA-00010 (ARB May 12, 2022) (per curiam) (Decision and Order)

MOTION TO DISMISS; ALJ CAN CONVERT A MOTION TO DISMISS TO A MOTION FOR SUMMARY DECISION WHEN PARTIES ARE GIVEN SUFFICIENT NOTICE AND THERE IS NO DISPUTE OF MATERIAL FACT

In Mansell v. Tennessee Valley Authority, ARB No. 2020-0060, ALJ No. 2019-ERA-00010 (May 12, 2022) (per curium), the ARB held that an ALJ did not abuse his discretion when a motion to dismiss was converted to a motion for summary decision and granted. The ARB recognizes that ALJs have inherent authority to manage their own affairs. The ARB found that Complainant had sufficient notice of the applicable legal standard when the ALJ issued anorder to show cause that highlighted the specific facts and information that Complainant needed to provide in order for his claim to survive. The ARB further found that the ALJ appropriately granted summary decision because Complainant failed to show there was a dispute of material fact.

Debuse v. Corr Flight S. d/b/a Nicholas Air, ARB No. 2022-0019, ALJ No. 2020-AIR-00015 (ARB May 13, 2022) (per curiam) (Decision and Order Affirming in Part and Vacating and Remanding in Part)

PROTECTED ACTIVITY; CONTRIBUTING FACTOR; ALJ MUST ADDRESS ALL PROTECTED ACTIVITIES ALLEGED BY THE COMPLAINANT BEFORE BEGINNING CONTRIBUTING FACTOR ANALYSIS

In Debuse v. Corr Flight S. d/b/a Nicholas Air, ARB No. 2022-0019, ALJ No. 2020-AIR-00015 (ARB May 13, 2022) (Per Curiam), the ARB vacated in part and affirmed in part the ALJ’s Decision and Order Granting Relief under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C. § 42121. The ARB determined that the ALJ did not address one of the activities that the complainant alleged was protected. The ARB therefore decided that the case should be remanded for the ALJ to analyze whether the activity was protected under the AIR 21. The respondent contested the ALJ’s finding that a protected activity was a contributing factor in an adverse action. However, the ARB did not address the respondent’s argument because it determined that the contribution finding should be vacated and remanded to allow the ALJ an opportunity to consider whether the activity that was not addressed in the initial decision was a contributing factor in the adverse action, if the ALJ finds that it was protected. The ARB noted that “[t]o properly evaluate whether protected activity contributed to [the employer’s] decision to terminate [the employee’s] employment, all instances of protected activity must be thoroughly assessed.”

Administrator, Wage and Hour Div., USDOL v. E.T. Simonds Construction Company, ARB No. 2021-0054, ALJ No. 2021-DBA-00001 (ARB May 13, 2022) (per curiam) (Decision and Order)

MATERIAL TRANSPORTATION DRIVERS MAY BE COVERED UNDER THE DAVIS-BACON ACT FOR THEIR TIME SPENT ON THE SITE OF THE WORK WHEN THAT TIME IS MORE THAN DE MINIMIS

In E.T. Simonds Construction Co., ARB No. 2021-0054, ALJ No. 2021-DBA-00001 (ARB May 13, 2022) (per curiam), the ARB found that under the implementing regulations under the Davis-Bacon Act (DBA), coverage may extend to material transportation drivers whose only purpose on the worksite is hauling materials to and/or from the site of the work if that time spent on-site is more than de minimis. The ARB indicated it is a “blended” approach to determine whether the driver’s time spent on-site is more than de minimis by balancing both the driver’s function in performing labor at the worksite with the actual amount of time a driver spent on the site of the work. The ARB determined that the ALJ did not err in finding that the material transportation drivers in E.T. Simonds spent more than a de minimis amount of time on the worksite and were entitled to prevailing wages for their time spent on the worksite, as the drivers spent an estimated twenty-five percent of their workday on the worksite.

Muenzberg v. APL Maritime, LTD, ARB No. 2021-0070, ALJ No. 2018-SPA-00001 (ARB May 13, 2022) (per curiam) (Decision and Order Approving Settlement and Dismissing Case With Prejudice)

The ARB approved the parties’ settlement agreement as fair, adequate, and reasonable, and not in contravention of the public interest.

Verrue v. Talon Air, Inc., ARB No. 2022-0028, ALJ No. 2021-AIR-00003 (ARB May 16, 2022) (Order Granting Dismissal)

The ARB granted the appellant’s request for voluntary dismissal of its petition for review with prejudice.

Clem and Spencer v. Computer Sciences Corporation, ARB No. 2020-0025, ALJ Nos. 2015-ERA-00003 and -00004 (ARB May 16, 2022) (per curiam) (Decision and Order Approving Settlement and Dismissing Case With Prejudice)

The ARB approved the parties’ settlement agreement as fair, adequate, and reasonable, and not in contravention of the public interest.

Tindall v. United States Dept. of Treasury, ARB No. 2022-0030, ALJ No. 2021-TAX-00005 (ARB May 16, 2022) (per curiam) (Decision and Order)

In James Tindall v. United States Dep’t of Treasury, ARB No. 2022-0030, ALJ No. 2021-TAX-00005 (May 16, 2022) (per curiam), the Complainant argued on appeal that the ALJ erred in finding he failed to prove that the Taxpayer First Act of 2019 (TFA) contains an explicit waiver of sovereign immunity as to whistleblower claims against the United States. The ARB summarily affirmed the ALJ’s decision and noted that the TFA’s regulations did not identify the Department of Treasury or any other governmental entity as a “person” from whom relief may be sought under the TFA’s anti-retaliation provision.

Lugg v. Lear Corp., ARB No. 2022-0008, ALJ No. 2021-SOX-00022 (ARB May 19, 2022) (per curiam) (Decision and Order)

TIMELINESS; THE COVID-19 PANDEMIC MAY CONSTITUTE EXTRAORDINARY CIRCUMSTANCES FOR THE PURPOSE OF EQUITABLE TOLLING; HOWEVER, A PETITIONER MUST DEMONSTRATE FACT-SPECIFIC CIRCUMSTANCES

In Lugg v. Lear Corp., ARB No. 2022-0008, ALJ No. 2021-SOX-00022 (ARB May 19, 2022) (per curiam), the ARB affirmed the ALJ’s dismissal of Complainant’s SOX complaint as untimely filed. Complainant contended that extraordinary circumstances prevented him from timely filing his SOX complaint.

Complainant first contended that mental illness and physical illnesses prevented him from timely filing his SOX complaint. However, the ARB agreed with the ALJ that Complainant’s illnesses did not rise to the level of an impairment preventing him from filing within the deadline.

Complainant next contended that the effects of the COVID-19 pandemic prevented him from timely filing his complaint. The ARB determined that the COVID-19 pandemic may constitute extraordinary circumstances for the purposes of equitable tolling under certain circumstances. However, the ARB further wrote:

A petitioner seeking equitable tolling must still demonstrate fact-specific circumstances related to the pandemic that hindered their ability to file. For example, the COVID-19 pandemic does not justify an otherwise untimely filing where the facts indicate that the petitioner had the means to file his complaint electronically throughout the pandemic.

The ARB found that the Complainant did not demonstrate fact-specific circumstance necessary to warrant equitable tolling based on the COVID-19 pandemic.

Complainant further contended that, as an overseas worker and non-U.S. citizen, he is not familiar with U.S. legislation and procedures. However, the ARB wrote, “ignorance of the law is neither sufficient basis for granting equitable tolling nor by itself an independent ground establishing entitlement.”

Lastly, the ARB found that Complainant did not exercise due diligence.

Neely v. The Boeing Company, ARB No. 2020-0071, ALJ No. 2018-AIR-00019 (ARB May 19, 2022) (per curiam) (Decision and Order)

SUBSTANTIAL EVIDENCE SUPPORTED THE ALJ'S FINDING THAT COMPLAINANT'S ALLEGED PROTECTED ACTIVITY DID NOT CONTRIBUTE TO HIS LAYOFF

In Neely v. The Boeing Company, ARB No. 2020-0071, ALJ No. 2018-AIR-00019 (ARB May 19, 2022) (per curiam), Complainant alleged that Respondent selected him for layoff in a reduction in force (RIF) because he engaged in protected activity under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C. § 42121. Assuming for purposes of appeal that Complainant engaged in protected activity as alleged, the ARB determined that substantial evidence supported the ALJ’s conclusion that Complainant’s protected activity did not contribute to his layoff.

The ARB agreed with the ALJ that Respondent presented abundant, credible, and unrebutted evidence that budgetary constraints necessitated a RIF, and that Complainant was selected for layoff in the RIF due primarily to his poor interpersonal skills and negative interactions with others. Complainant’s arguments that Respondent’s explanations for his layoff were false and pretextual and that other, intermediate adverse personnel actions reflected retaliatory motives were not supported by the record. There was also no evidence that Respondent attempted to conceal the concerns Complainant raised, which were well-known within Respondent’s organization. Similarly, Complainant was one of several employees and contractors raising the same concerns, yet there was no evidence that Respondent retaliated against any of the other alleged whistleblowers. Complainant did not explain why he would have been singled out for retaliation, or why the alleged retaliatory motives, if they in fact existed, would not have also extended to others raising the same concerns.

AFFIRMATIVE DEFENSE; RESPONDENT PROVED BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD HAVE TAKEN THE SAME ACTION EVEN IN THE ABSENCE OF COMPLAINANT'S ALLEGED PROTECTED ACTIVITY

For many of the same reasons that the ARB affirmed the ALJ’s contribution analysis, the ARB also agreed with the ALJ that Respondent proved by clear and convincing evidence that it would have laid Complainant off even in the absence of his alleged protected activity. Noting that a “whistleblower is not insulated or immunized from adverse action for his misbehavior, wrongdoing, or unsatisfactory performance,” the ARB stated: “Based on the record in this case, the ALJ reasonably concluded Neely’s protected activity played no role in his adverse action and, likewise, that Boeing would have taken the same adverse action even in the absence of his protected activity.”

CREDIBILITY; ALJ'S CREDIBILITY DETERMINATIONS WERE REASONABLE

The ARB affirmed the ALJ’s credibility determinations as well-reasoned and supported by substantial evidence. The ALJ reasonably concluded that Complainant’s credibility was “wanting” because Complainant demonstrated a lack of candor with the tribunal; as the ALJ determined, Complainant made representations at the hearing that were “at best inaccurate, at worse, a knowingly false statement.” Additionally, Complainant’s conclusory assertions that Respondent’s witnesses were motivated to lie were insufficient to disturb the ALJ’s credibility determinations: “Although motivation may be relevant in assessing credibility, we find no basis to second-guess the ALJ’s credibility assessments or the veracity of these witnesses’ statements merely because of their roles in the events of this case.”

DISCOVERY, EVIDENCE, AND TRIAL CONTROL; ALJ DID NOT ABUSE HIS DISCRETION

Complainant raised several challenges to the way the ALJ controlled the proceedings, resolved discovery disputes, and conducted and controlled the formal hearing. The ARB stated that the ALJ is granted broad discretion to control discovery and hearing procedures and will only be reversed upon a showing that the ALJ abused that discretion. The ARB determined that Complainant failed to articulate how the ALJ abused his discretion with respect to any of his decisions concerning alleged discovery infractions and trial control and procedure issues, or how Complainant was prejudiced by the ALJ’s decisions.

ADJUDICATORY DELAYS; STATUTORY TIME LIMITS ARE ONLY DIRECTORY, AND THE ALJ'S SCHEDULE WAS REASONABLE IN THE CIRCUMSTANCES OF THE CASE

Complainant argued that the ALJ improperly delayed hearing and resolving the case in violation of the time frames identified by AIR 21, 49 U.S.C. § 42121(b)(2)(A), (3)(A). The ARB observed that the “statutory time limits for agency action are usually deemed directory,” not mandatory. Additionally, the ARB determined that the ALJ’s schedule and issuance of a decision beyond the statutory deadline was reasonable, given the complexity of the issues, the size of the record, the length of the hearing, and other circumstances of the case.

Rule 60(b) Motion; Request for Relief from Judgment Should be Presented to the ALJ in the First Instance, as the Tribunal from Whose Judgment Complainant Sought Relief; to the extent construed as a request to reopen the record, complainant did not show that the materials were material

In a post-appeal motion, Complainant requested the ARB consider information concerning two fatal crashes of Respondent’s aircraft. Invoking Rule 60(b) of the Federal Rules of Civil Procedure, Complainant requested the ARB vacate the ALJ’s decision and enter judgment in his favor in light of the cited materials, which he asserted demonstrated the reasonableness and gravity of his concerns with the manner in which Respondent developed aircraft. Some of the cited materials existed years before the ALJ’s hearing, yet Complainant did not present them to the ALJ for consideration. Therefore, the ARB found Complainant’s arguments with respect to those materials were waived. Additionally, the ARB determined that Complainant’s arguments should have been presented to the ALJ, as the tribunal from whose judgment Complainant sought relief. Finally, to the extent the motion was construed as a request to reopen the record, the ARB determined the materials presented by Complainant were not material to, nor would they alter the outcome of, the dispositive issues in the appeal.

Stokes v. Albertson's, LLC and Darrell Kidd, ARB No. 2022-0007, ALJ Nos. 2020-STA-00080, 2020-STA-00082 (ARB May 20, 2022) (per curiam) (Decision and Order)

ADVERSE ACTION; AN EMPLOYEE WAS NOT ENTITLED TO RELIEF AFTER HIS EMPLOYER RESCINDED A PRESUMPTIVELY ADVERSE ACTION WITHIN A REASONABLE TIME

In Stokes v. Albertson’s, LLC and Darrell Kidd, ARB No. 2022-0007, ALJ Nos. 2020-STA-00080, -00082 (ARB May 20, 2022) (per curiam), the ARB summarily affirmed the ALJ’s decision dismissing a complaint filed under the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. § 31105. The ARB agreed that an employee did not suffer an adverse action when his employer initially assessed demerit points to his attendance report but removed the points within a reasonable time. The employer assessed two points to the employee’s attendance report for absences incurred by the employee when he alleged that he was too ill to drive safely. Under the employer’s attendance policy, an accumulation of points within any given fifty-two-week period could result in discipline. The employee requested his attendance report from his employer because he was concerned that he was accumulating points. While preparing the attendance report for the employee, the employer analyzed the issue or learned of the mistake and removed the demerit points from the report before submitting it to the employee. When the employee received his attendance report, it showed no points. The ARB agreed with the ALJ’s finding that the employer acted within a reasonable time to correct the employee’s record and noted several ARB decisions that similarly held that an employee was not entitled to relief after an employer’s rescission of a presumptively adverse action. The ARB also observed that the employee suffered no consequences from the temporary assignment of demerit points.

Johnson v. FedEx Ground Package System, Inc., OSDA Transport, Inc., and Steve Olson, ARB No. 2022-0013, ALJ No. 2018-STA-00028 (ARB May 20, 2022) (per curiam) (Decision and Order)

PROTECTED ACTIVITY; COMPLAINANT'S DECISION TO HALT HIS ROUTE AND RETURN TO TERMINAL WHEN FACED WITH ICY ROAD CONDITIONS WAS NOT A PROTECTED REFUSAL TO DRIVE

In Johnson v. FedEx Ground Package System, Inc., ARB No. 2022-0013, ALJ No. 2018-STA-00028 (ARB May 20, 2022) (per curiam), Complainant, a commercial truck driver for Respondents, alleged that Respondents terminated his employment in violation of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105, when he refused to complete his delivery and returned to his terminal when he encountered icy road conditions. The ARB affirmed the ALJ’s decision that Complainant did not engage in activity protected by the STAA. The ARB determined that substantial evidence supported the finding that on multiple occasions, including before Complainant alleged that he engaged in protected activity, Respondents gave Complainant clear, legal, and viable options to avoid dangerous conditions, and Complainant acknowledged such options were available to him. Yet, Complainant declined to take them. The ARB found that Complainant was never “asked, required, or expected, implicitly or explicitly, to drive in conditions that may have violated a safety regulation or that risked causing serious injury; to the contrary, at every avenue he was given the option and the instruction to avoid such a scenario. In these circumstances, the ALJ reasonably concluded that Johnson’s conduct could not be considered a ‘refusal’ to operate in circumstances that were protected by the STAA.”

LEGAL FRAMEWORK; THE ALJ'S CITATION TO MCDONNELL DOUGLAS WAS HARMLESS ERROR

Complainant argued that the ALJ committed legal error by citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which established a three-part burden-shifting framework for analyzing claims under Title VII of the Civil Rights Act of 1964. Although Complainant was correct that the McDonnell Douglas framework is not applicable in a STAA case, the ALJ did not actually articulate or analyze the framework identified in that case. Instead, as Complainant conceded, the ALJ articulated the appropriate burden and framework required in cases under the STAA. Furthermore, the ALJ’s determination that Complainant did not engage in protected activity was dispositive under either framework or standard. Thus, the ALJ’s error in his legal citation was harmless.

Manoharan v. HCL America, Inc., ARB No. 2021-0060, ALJ No. 2018-LCA-00029, 2021-LCA-00009 (ARB May 2, 2022) (per curiam) (Order Denying Motion for Reconsideration)

Klein v. Bank of America, ARB No. 2022-0016, ALJ No. 2020-SOX-00039 (ARB May 19, 2022) (per curiam) (Order Denying Reconsideration)

MOTION FOR RECONSIDERATION; A REQUEST FOR THE ARB TO RECONSIDER A DECISION MUST BE MADE WITHIN A "REASONABLE TIME"

In Klein v. Bank of America, ARB No. 2022-0016, ALJ No. 2020-SOX-00039 (ARB May 19, 2022) (per curiam) (Order Denying Reconsideration), Complainant requested the ARB to reconsider its Decision and Order Dismissing Complaint thirty six days after the ARB’s decision. The ARB denied the motion finding that Complainant’s Motion for Reconsideration was not filed within a “reasonable time” from the date on which the ARB issued its decision.