USDOL/OALJ Reporter: ARB Decision Caselist -- June 2007

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Summary :

[STAA Digest IV C 2 b]
PRETEXT NOT ESTABLISHED; INSUBORDINATION DURING REVIEW OF DRIVING COMPLAINTS

In Chapman v. J.B. Hunt Transportation Co. , ARB No. 05-097, ALJ No. 2004-STA-44 (ARB June 29, 2007), the Complainant failed to establish that the Respondent's articulated reason for firing him � insubordination and lack of professionalism during a review of his driving � was pretext for discrimination. Under the Respondent's procedure the team leader, fleet manager, and safety manager confer with a driver to discuss driving incidents upon receiving four complaints about the driver from members of the public. During this meeting the Complainant became hostile and was unreceptive to any criticism regarding his driving. The Board wrote: "Chapman strongly disagreed with Hunt's instruction and criticism regarding his driving methods. Nevertheless, the issue before us is not the merit of Hunt's suggestions. Hunt fired Chapman because of his insubordinate behavior during the multiple complaint review, and Chapman's insubordinate behavior does not constitute STAA-protected activity. Chapman has therefore failed to prove an essential element of his claim, i.e., that Hunt terminated his employment because he engaged in protected activity." USDOL/OALJ Reporter at 6 (footnote omitted).

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Summary :

ALJ'S LACK OF PRECISION IN ANALYTICAL FRAMEWORK COMPELLED REMAND

In Clemmons v. Ameristar Airways, Inc. , ARB Nos. 05-048, 05-096, ALJ No. 2004-AIR-11 (ARB June 29, 2007), the ARB remanded for additional proceedings where the ALJ made four errors of law in analyzing the Complainant's AIR21 whistleblower complaint. Specifically, the ALJ erred when he (1) appeared to have merged the Respondent' burden of production with its later burden to prove by clear and convincing evidence that it would have taken the adverse action absent protected activity; (2) held that the Complainant proved a prima facie case by a preponderance of the evidence (rather, once a case has proceeded to hearing, a complainant's burden is to prove by a preponderance of evidence ("demonstrate") that the protected activity was a contributing factor in the alleged adverse action); (3) appeared to have found that a finding of pretext compels a finding of discrimination; and (4) failed to consider whether the Respondent proved that it would have terminated the Complainant absent protected activity. The ARB acknowledged that the ALJ's errors may have been simply imprecision; but that imprecision created uncertainty about the ALJ's findings that compelled a remand.

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Summary :

EXTRATERRITORIAL APPLICATION OF SOX WHISTLEBLOWER PROVISION; ARB FOLLOWS CARNERO RULING

In Ede v. The Swatch Group Ltd. , ARB No. 05-053, ALJ Nos. 2004-SOX-68 and 69 (ARB June 27, 2007), the ARB found that substantial evidence supported the ALJ's findings that the Complainants worked solely for foreign subsidiaries of the Respondent in Switzerland, Hong Kong and Singapore; that they never worked for the Respondent within the United States; and that their SOX complaint was grounded in adverse actions that occurred outside the United States. The ARB also found no reason to depart from the First Circuit decision in Carnero v. Boston Scientific Corp ., 433 F.3d 1, 4, 6-7 (1st Cir. 2006), cert. denied , __ U.S. __, 126 S.Ct. 2973 (June 26, 2006), that SOX section 806 does not protect employees who work exclusively outside the United States. The ARB therefore denied the complaint.

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Summary :

[STAA Digest IV A 2 d]
PROTECTED ACTIVITY; KNOWLEDGE OF RESPONDENT; COMPLAINANT'S REQUEST FOR TIME OFF

In Herrick v. Swift Transportation Co., Inc. , ARB No. 05-082, ALJ No. 2004-STA-56 (ARB June 29, 2007), the ARB affirmed the ALJ's finding that the Complainant's request for time off did not alert the Respondent's management that the Complainant was too tired to drive safely or that he was out of hours under the DOT regulations. The request, therefore, did not constitute protected activity under the STAA.

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Summary :

[STAA Digest IV A 1]
LEGAL ANALYSIS; ONCE RESPONDENT PRESENTS REBUTTAL EVIDENCE, PRIMA FACIE CASE ANALYSIS IN NO LONGER RELEVANT

In Luckie v. United Parcel Service, Inc. , ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the erred when he described the legal burden of proof in a STAA whistleblower cases in terms of establishing a prima facie case, and then briefly analyzed each element of the claim, but was not clear whether he was using the ultimate burden of proof requirements to prevail or whether he was applying the burden of persuasion requirements to establish a prima facie case. The ARB observed that the Secretary of Labor explained in Carroll v. Bechtel Power Corp. , No. 1991-ERA-46, slip op. at 11 (Sec'y Feb. 15, 1995), that "[o]nce the respondent has presented his rebuttal evidence, the answer to the question whether the plaintiff presented a prima facie case is no longer particularly useful."

[STAA Digest VII A 2 e]
COVERED EMPLOYEE; SECURITY MANAGER WHO WAS NOT RESPONSIBLE FOR COMMERCIAL MOTOR VEHICLE SAFETY

In Luckie v. United Parcel Service, Inc. , ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the Complainant was the security manager for the Respondent's Alabama district. The STAA defines a covered employee as "a driver of a commercial motor vehicle (including an independent contractor when personally operating a commercial motor vehicle), a mechanic, a freight handler, or an individual not an employer, who directly affects commercial motor vehicle safety in the course of employment by a commercial motor carrier." 49 U.S.C.A. § 31101(a)(2)(A). The ALJ found that the Complainant was a covered employee under the STAA whistleblower provision as "either a freight handler or a person who directly affected commercial vehicle safety in the course of his employment or both." The ARB, however, found that that the Complainant's infrequent touching of packages in connection with a claims investigation did not qualify him as a freight handler under the STAA. In addition, the ARB found, as a matter of law, that the Complainant was not an individual who directly affected commercial motor vehicle safety because his job duties did not directly impact the safety of UPS's commercial motor vehicles. Although the Complainant referenced concerns about UPS's response to post 9/11 fears of truck bombs, the ARB found that the Complainant had no responsibility for the operational safety of UPS's commercial motor vehicles; nor was he responsible for reporting, auditing, or reviewing any safety defects in those vehicles. Those functions were the responsibility of another UPS department. The ARB, therefore, concluded that the Complainant was not a covered employee under the STAA.

[STAA Digest V A]
PROTECTED ACTIVITY; COMPLAINANT'S GOOD FAITH BELIEF THAT THE RESPONDENT WAS FAILING TO CONDUCT AN ADEQUATE INVESTIGATION OF A FIRE IN A SORTING FACILITY WAS NOT PROTECTED ACTIVITY UNDER THE STAA WHEN IT WAS NOT SHOWN TO BE LINKED TO HIGHWAY SAFETY

In Luckie v. United Parcel Service, Inc. , ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the Complainant was the security manager for the Respondent's Alabama district. His primary responsibilities were to direct his staff in resolving customers' claims for lost, stolen, or damaged packages; investigate incidents of employee theft and violations of UPS harassment and integrity policies; and oversee security at the company's facilities, including alarm systems and guard services. Following a package fire on a conveyor belt inside a sorting facility, the Complainant sent one of his investigators who reported back that the fire looked suspicious. The Complainant contacted the manager whose Department was responsible for UPS's compliance with federal hazardous materials statutes and regulations. When the Complainant concluded that the fire was not being properly investigated and that there was potential danger with possibly hazardous packages being unloaded, he contacted his district manager. Noting that an employee need demonstrate only a reasonably perceived violation of the underlying statute, the ALJ found that the Complainant's concerns about the fire were "in good faith," particularly in the wake of 9/11. The ARB agreed that the complaint to the district manager was "in good faith," but stated that the issue was whether the Complainant had a "reasonable belief" that the Respondent's actions were in violation of the STAA or a STAA regulation. Reversing the ALJ's finding that the Complainant had engaged in protected activity, the ARB wrote that "the purpose of the STAA is to promote highway safety, encourage the safe operation and maintenance of commercial motor vehicles, and protect the health and safety of operators. See 128 Cong. Rec. S32,510 (1982). We fail to see how a package fire caused by a possible malfunction of a conveyor belt in a sorting center such as the Montgomery hub could endanger public safety on the highways."

[STAA Digest IV A 2 d]
EMPLOYER'S KNOWLEDGE OF PROTECTED ACTIVITY; RELEVANT AWARENESS IS OF THOSE RESPONSIBLE FOR THE ADVERSE ACTION

In Luckie v. United Parcel Service, Inc. , ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the Complainant was the security manager for one of the Respondent's districts, who complained to district manager about the lack of adequate investigation of a fire in a sorting facility. Two days after making this complaint, the Complainant was offered a promotion which required him to relocate. The promotion offer was allegedly adverse because it was ill-timed for the Complainant. The ARB noted that the Complainant must prove by a preponderance of the evidence that those responsible for the adverse action were aware of the alleged protected activity. The ARB found that the ALJ's finding of fact that the Complainant's supervisors were aware of the Complainant's alleged protected activity was supported by substantial evidence, but that the ALJ did not make findings of fact or conclude that the Respondent's corporate security executives at headquarters were aware of the alleged protected activity. It was these executives who made the decision to offer the Complainant a promotion.

[STAA Digest VI B 4]
ADVERSE ACTION; PROMOTION OFFER KNOWINGLY MADE AT AN INCONVENIENT TIME FOUND NOT TO BE ADVERSE ACTION UNDER THE FACTS OF THE CASE

In Luckie v. United Parcel Service, Inc. , ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the Complainant was the security manager for one of the Respondent's districts, who complained to district manager about the lack of adequate investigation of a fire in a sorting facility. Two days after making this complaint, the Complainant was offered a promotion which required him to relocate. He was given 24 hours to make a decision. If he declined the promotion, his options were to accept a demotion and wait for future promotion opportunities, or to leave the company with three weeks of severance pay. The promotion offer, which had been in the works for some time, was ill-timed for the Complainant for personal reasons. The Respondent knew about the Complainant's timing issues. The ALJ, concerned about the coincidence of the promotion suddenly being offered shortly after the alleged protected activity, found that the timing of the offer was an adverse employment action. The ARB disagreed. The ARB found that the meeting with the Complainant at which the promotion was offered had been previously scheduled, albeit on different matters, and that the executive who made the promotion offer had decided to do so at this meeting before the fire at the sorting facility had taken place. In addition, the ARB found that it was the Respondent's normal procedure to set short time frames for making decisions about promotions, and that the Respondent was not required to by the STAA to time its promotions (and accompanying relocations) according to the Complainant's home life. The ARB found that the Complainant knew that a promotion and relocation were in the works and that his failure to accept the transfer was blocking a promotion for another employee. The ARB found that the Respondent knew that the timing would be disruptive to the Complainant, but concluded that the demotion or resign options were attempts to accommodate the Complainant.

[STAA Digest IV C 2 b]
PRETEXT; ABRUPT OFFER OF PROMOTION AND TRANSFER AT AN INCONVIENT TIME FOR THE COMPLAINANT FOUND NOT TO BE PRETEXT UNDER THE FACTS OF THE CASE

In Luckie v. United Parcel Service, Inc. , ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the Complainant was the security manager for one of the Respondent's districts, who complained to district manager about the lack of adequate investigation of a fire in a sorting facility. Two days after making this complaint, the Complainant was offered a promotion which required him to relocate. He was given 24 hours to make a decision. If he declined the promotion, his options were to accept a demotion and wait for future promotion opportunities, or to leave the company with three weeks of severance pay. The promotion offer, which had been in the works for some time, was ill-timed for the Complainant for personal reasons. The Respondent knew about the Complainant's timing issues. The Complainant chose none of the options and announced that he would continue to do his present job, whereupon the Respondent fired him. The ALJ found that the proximity of the promotion offer and the protected activity raised an inference of a causal link, and that the Respondent's proffered legitimate, non-discriminatory reason for making the offer when it did was pretext.

The ARB disagreed. Before the fire occurred, a need arose to replace an outgoing manager and the decision was made to select the Complainant. Instructions had already been given to inform the Complainant of the decision and move immediately on filling the vacancy. The district manager to whom the Complainant had complained about the fire investigation's inadequacy had not communicated with the corporate headquarters officials who played a role in selecting the Complainant for the promotion and transfer. The ARB found no support in the record for the ALJ's conclusion that employees are normally interviewed prior to being offered a promotion. The ARB agreed with the ALJ that the district manager was irritated with the Complainant, but found that the Complainant had offered no evidence to establish that "she [was] so irritated that she was motivated to take action to adversely affect Luckie's employment." The ARB found it not credible that the Respondent would force an employee to "self-terminate" based on a good faith complaint about the fire investigation where he had a good record, the Employer had invested 25 years in him, and there was no evidence of prior discord between the Complainant and other employees.

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• Original June 29, 2007 decision removed.
• Errata: PDF | HTML
• Corrected Decision: PDF | HTML

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Summary :

[Nuclear and Environmental Digest XX E]
SOVEREIGN IMMUNITY; TENNESSEE VALLEY AUTHORITY NOT IMMUNE FROM AN ERA WHISTLEBLOWER SUIT

In Overall v. Tennessee Valley Authority , ARB No. 04-073, ALJ No. 1999-ERA-25 (ARB July 16, 2007), the ALJ had held that the Tennessee Valley Authority was not immune from the Complainant's ERA whistleblower suit because Congress had waived TVA's immunity when it included a "sue and be sued" clause in TVA's enabling legislation. See 16 U.S.C.A. § 831c(b). On appeal the ARB agreed. The ARB held that Congress did not expressly restrict TVA's ability to sue and be sued, and because TVA had not shown any implied exception to the waiver of sovereign immunity, it was not immune.

[Nuclear and Environmental Digest VIII B 2]
SCOPE OF APPELLATE REVIEW; FAILURE OF RESPONDENT TO CROSS-PETITION ON ISSUE OF SOVEREIGN IMMUNITY

In Overall v. Tennessee Valley Authority , ARB No. 04-073, ALJ No. 1999-ERA-25 (ARB July 16, 2007), the ARB rejected an argument from the Complainant that the Respondent could not raise a sovereign immunity issue on appeal because it had not filed a cross-petition for a review of the ALJ's holding on this issue. Rather, the ARB stated that it is obligated to inquiry sua sponte whenever a doubt about subject matter jurisdiction arises.

[Nuclear and Environmental Digest VIII B 2]
SCOPE OF APPELLATE REVIEW; TRIAL OF ISSUES BY CONSENT

In Overall v. Tennessee Valley Authority , ARB No. 04-073, ALJ No. 1999-ERA-25 (ARB July 16, 2007), the Respondent argued that the Complainant's discrete adverse action claims could not be asserted on appeal because they were not contained in his complaint, which alleged only that the Respondent subjected him to a hostile work environment. The ARB, however, found that the discrete adverse action claims had been tried before the ALJ by consent of the parties, citing 29 C.F.R. § 18.5(e).

[Nuclear and Environmental Digest XIII A]
ADVERSE EMPLOYMENT ACTION; TO BE ACTIONABLE, THE RESPONDENT'S ACTIONS MUST HAVE BEEN "MATERIALLY ADVERSE," I.E. , HARMFUL TO THE POINT THAT THEY COULD HAVE DISSUADED A REASONABLE WORKER FROM ENGAGING IN PROTECTED ACTIVITY

In Overall v. Tennessee Valley Authority , ARB No. 04-073, ALJ No. 1999-ERA-25 (ARB July 16, 2007), the ARB wrote: "Not every action taken by an employer that renders an employee unhappy constitutes an adverse employment action. To succeed, Overall must prove by a preponderance of the evidence that TVA took a 'tangible employment action' that resulted in a significant change his employment status. This means that Overall must prove that TVA's action was 'materially adverse,' that is, TVA's actions must have been harmful to the point that they could well have dissuaded a reasonable worker from engaging in protected activity." USDOL/OALJ Reporter at 10-11 (footnotes omitted).

In Overall , the Complainant had been reinstated as the result of an earlier ERA whistleblower complaint. When reinstated, he was given his former job title, schedule and grade, with duties involving the same system that he previously worked on. The Complainant, however, argued that the Respondent did not give him meaningful work comparable to his prior work, and was prevented from work on any open "Problem Evaluation Reports." The ARB, however, affirmed the ALJ's findings that the Complainant had been reinstated to his former position, and that during the 12 days when he was actually on duty during the reinstatement, he was only assigned work appropriate to his position and level of training. The ARB found that the work assigned may have been mundane, but not materially adverse. The Complainant also contended that he had been excluded from meetings and conversations about the system to which he had been assigned. The ARB, however, found that the record supported a finding that he had not been excluded from conversations and meetings that were relevant to his responsibilities as a new member of the operational systems team. The Complainant was not immediately added to e-mail distribution lists; however, the ARB agreed with the ALJ that that the delay was not unreasonable. Finally, the ARB found that an isolated incident when a manager reported a concern that the Complainant was inappropriately planning to attend a rally at a nuclear power plant while on administrative leave did not establish that the supervisor had been monitoring the Complainant's whereabouts. Moreover, the Respondent took no action based on this information, and the Complainant did not demonstrate that he had suffered a materially adverse action from the manager's actions.

[Nuclear and Environmental Digest XIII C]
HOSTILE WORK ENVIRONMENT; EMPLOYER MAY AVOID LIABIILITY WHERE IT TAKES ACTION REASONABLY CALCULATED TO END THE HARASSMENT

In Overall v. Tennessee Valley Authority , ARB No. 04-073, ALJ No. 1999-ERA-25 (ARB July 16, 2007), the ARB found that the record supported the ALJ's finding that a hostile work environment ("HWE") existed at the Respondent's facility, but that the Respondent was not liable for that situation. The Complainant had been reinstated after winning an earlier ERA whistleblower complaint. The Complainant was subjected to intentional harassment, such as anonymous telephone calls and messages, anonymous notes (such as "Silkwood," "BOO," and "STOP IT NOW"), a sarcastic comment from a supervisor, and a fake bomb placed in the back of his truck. The ARB found that this harassment altered the terms of employment and created an abusive work environment, and that it would have affected a reasonable whistleblower in the Complainant's circumstances and that it did detrimentally affect him. Although the Complainant did not directly prove that TVA employees harassed him, most of the incidents having involved anonymous perpetrators, the ARB inferred from the circumstances that TVA employees were responsible. The ARB then turned to whether the Respondent had adequately responded to the HWE, writing:

�TVA will be liable for its employees' harassing conduct if it knew, or in the exercise of reasonable care should have known, of the harassment and failed to take prompt remedial action. To avoid liability, TVA must take both preventive and remedial measures to address workplace harassment. Once TVA knew about the harassment, the question becomes whether it addressed the problem adequately and effectively.

USDOL/OALJ Reporter at 19 (footnotes omitted). The ARB agreed with the ALJ that the Respondent had taken extensive steps to protect the Complainant from harassment before he returned to the facility and also acted promptly and appropriately to deal with both off-site and on-site harassment reported by the Complainant. The ARB wrote:

[U]nder our precedent, TVA is not liable for a HWE claim if it addresses the harassment adequately and effectively. Addressing harassment adequately and effectively means taking action reasonably calculated to end the harassment. The employer is not required to achieve a result, only to take action. Here, though the harassment did not completely end, TVA was never indifferent to Overall's complaints. Rather, it took action reasonably calculated to end the harassment. Therefore, we find that TVA adequately and effectively addressed the harassment. As a result, it is not liable for the HWE.

USDOL/OALJ Reporter at 20-21 (footnotes omitted). The ARB rejected the Complainant's contention that under Pennsylvania State Police v. Suders , 542 U.S. 129 (2004), TVA would be strictly liable for the HWE because in Suders , unlike the instant case where the Complainant did not resign, the plaintiff had established that he had been constructively discharged, and because in Suders , unlike the instant case, the plaintiff's supervisors had been responsible for the HWE. The ARB also rejected the Complainant's contention that the Respondent's response to the HWE had been motivated solely by public relations concerns, and was incompetent and deliberately inept. The ARB found no evidence of record to support these sweeping contentions. Finally, the ARB rejected the Complainant's reliance on Berkman v. U.S. Coast Guard Academy , ARB No. 98-056, ALJ Nos. 1997-CA�9, slip op. at 23 (ARB Feb. 29, 2000), where the Board wrote, "In light of Berkman's notice to superiors about instances of harassment, and the superiors' failure to remedy the harassment, we find that the [employer] has respondeat superior liability for those harassing actions." The ARB distinguished Berkman because in that case supervisors took little, if any, action when the Complainant complained to them about the way he was being treated.

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Summary :

ARB BRIEFING REQUIREMENTS; CONTUMACIOUS REFUSAL TO FILE CONFORMING BRIEF RESULTS IN DISMISSAL OF APPEAL

In Powers v. Pinnacle Airlines, Inc. , ARB No. 06-078, ALJ Nos. 2006-AIR-4 and 5 (ARB June 28, 2007), the ARB dismissed the Complainant's appeal because "even after the Board gave Powers explicit instructions concerning the Board's format and page limitation requirements, gave her ample opportunities to file a brief conforming to these requirements and limitations and unambiguously warned her that if she failed to file a conforming brief her appeal would be subject to dismissal without additional order, she nevertheless filed a brief that is not double-spaced and exceeds the Board's page limitations." The Complainant had two previous ARB appeals dismissed because she refused to file conforming briefs, both upheld by the Sixth Circuit. The ARB thus found that "there is not the slightest doubt that Powers had notice that if she refused to file a conforming brief, the Board would dismiss her appeal. Furthermore, in light of these previous dismissals, Powers's intransigent refusal to file a conforming brief could properly be described as nothing less than 'contumacious.'"

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Summary :

Approval of settlement agreement.

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Summary :

CLEAR AND CONVINCING EVIDENCE THAT THE COMPLAINANT WAS TERMINATED FOR POOR WORK PERFORMANCE AND BEHAVIOR IN RELATION TO HER SUPERVISOR AND CO-WORKERS

In Taylor v. Wells Fargo Bank, NA , ARB No. 05-062, ALJ No. 2004-SOX-43 (ARB June 28, 2007), the ARB affirmed the ALJ's finding that the Complainant had failed to demonstrate that her protected activity (complaining about the backdating of letters of credit) was a contributing factor in her firing. The ARB also affirmed the ALJ's finding that, even assuming the Complainant's complaints contributed to the adverse action taken against her, the Respondent had produced clear and convincing evidence that the Complainant was terminated because of her work performance and deteriorating relationships with her supervisor and other employees, and for a series of unprofessional and contentions actions, culminating in an argument with her supervisor.

TEMPORAL PROXIMITY MAY ESTABLISH CAUSATION, BUT IS NOT ITSELF SUFFICIENT TO ESTABLISH RETALIATORY INTENT

In Taylor v. Wells Fargo Bank, NA , ARB No. 05-062, ALJ No. 2004-SOX-43 (ARB June 28, 2007), the ARB wrote: "Temporal proximity does not establish retaliatory intent, but may establish the causal connection component of the prima facie case. The ultimate burden of persuasion that the respondent intentionally discriminated because of complainant's protected activity remains at all times with the complainant." USDOL/OALJ Reporter at n.12 (citation omitted).

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Summary :

[Nuclear and Environmental Digest XVI B 4]
FRONT PAY; USE OF "ALASKA RULE" TO OBVIATE NEED FOR DISCOUNTING TO PRESENT VALUE

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB June 27, 2007), the ARB granted the Respondent's motion to reconsider its front pay award, arguing that the ARB should have discounted it to present value. On reconsideration, the ARB declined to discount to present value, but did modify the award based on the analysis found in Jackson v. City of Cookeville , 31 F.3d 1354, 1361 (6th Cir. 1994), in which the court affirmed a district court's use of a variation of the "Alaska Rule" � i.e. , a "total offset" approach that obviates the need for discounting by refraining from calculating future salary increases into the front pay award.

[Nuclear and Environmental Digest IX A]
STAY OF REMEDIES; FOUR-PART TEST

In Tipton v. Indiana Michigan Power Co. , ARB No. 04-147, ALJ No. 2002-ERA-30 (ARB June 27, 2007), the ARB denied the Respondent's motion for a stay of administrative remedies. The Board uses a four-part test to determine whether to stay its own actions: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the Board grants a stay; and (4) the public interest in granting a stay. In the instant case, the ARB found that the Respondent was not likely to prevail on the merits on appeal despite the Respondent's contention that the ARB applied the wrong legal standard for protected activity. The Respondent argued that payment of the Complainant's attorney fees would result in irreparable harm based on the potentially unnecessary and unrecoverable expense of litigating attorney fees issues before the ALJ and the Board. The ARB rejected this argument, finding that mere injury in terms of money, time and energy is not sufficient to establish irreparable harm. The ARB also rejected the Respondent's argument that the Complainant would not be harmed by a stay on compensatory damages. Finally, the ARB found that a stay would be contrary to the public interest.

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Summary :

[Nuclear and Environmental Digest VIII B 1 b]
TIME PERIOD FOR FILING APPEAL TO THE ARB; ARGUMENT THAT REGULATORY 10 DAY TIME PERIOD IS TOO SHORT IS AN INADEQUATE JUSTIFICATION FOR AN UNTIMELY APPEAL

In Williamson v. Washington Savannah River Co. , ARB No. 07-071, ALJ No. 2006-ERA-30 (ARB June 28, 2007), the Complainant failed to file a petition for review of the ALJ's decision within 10 business days of issuance of the ALJ's decision, as required by the regulation at 29 C.F.R. § 24.8(a). The ARB observed that this regulation "is an internal procedural rule adopted to expedite the administrative resolution of cases arising under the environmental whistleblower statutes. Therefore, it is within the ARB's discretion, under the proper circumstances, to accept an untimely-filed petition for review." USDOL/OALJ Reporter at 3 (footnotes omitted). The Complainant's argued that 10 days was too little time for a pro se complainant to make an appeal. The ARB agreed that 10 days was a short time, but noted that pro se complainants had routinely been able to file appeals in that time frame. The ARB found the justification inadequate and dismissed the appeal.

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