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

---

Summary :

[STAA Digest II P]
SUMMARY DECISION; WHERE RESPONDENT SUPPORTS MOTION WITH EVIDENCE ON ITS NON-DISCRIMINATORY MOTIVE FOR THE ADVERSE ACTION, COMPLAINANT DOES NOT SUFFICIENTLY RESPOND MERELY BY ARGUING THAT THE TRIER OF FACT MIGHT DISBELIEVE THE RESPONDENT'S EVIDENCE AT A HEARING

In Coates v. Southeast Milk, Inc. , ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the ARB affirmed the ALJ's grant of summary decision in favor of the Respondent where the Complainant failed to come forward with a sufficient showing to counter the Respondent's presentation of sworn statements by company officials that the Complainant had been fired solely because he had posted a defamatory statement on a web site after being warned that doing so would result in termination of his employment. The Complainant's principle argument in response was that the Respondent's continuing efforts to stop him from disseminating any of his criticisms (which included a variety of alleged misconduct by the Respondent, much of which was not related to truck safety) supported the inference that he was not fired solely for making the defamatory statement, but for all of his criticisms, including his truck safety complaints. The ARB found that the argument had some logical force, but that it was not a sufficient response to the Respondent's motion for summary decision. The Board wrote: "The mere possibility that the fact finder might reject the moving party's evidence on credibility grounds is not enough to forestall summary judgment for the moving party." USDOL/OALJ Reporter at 10. Earlier in the opinion, the ARB set out the standard for granting summary decision under the OALJ Rules of Practice and Procedure. The Board wrote: "When, as in this case, the parties are in dispute about the Respondent's motive, the mere possibility that the ALJ might, and legally could, disbelieve the Respondent's evidence at the hearing is not sufficient to establish a genuine issue of fact as to the Respondent's state of mind at the summary decision stage."

[STAA Digest II H]
SCOPE OF ARB JURISDICTION; JURISDICTION OVER STAA COMPLAINT DOES NOT PROVIDE THE ARB JURISDICTION OVER COMPLAINTS ARISING UNDER THE JURISDICTION OF OTHER AGENCIES; SUCH MATTERS, HOWEVER, MAY PROVIDE RELEVANT EVIDENCE REGARDING MOTIVE

In Coates v. Southeast Milk, Inc. , ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the ARB rejected the Complainant's contention that once the ARB gained jurisdiction over his STAA complaint, it also gained jurisdiction over all of the complaints he lodged against the Respondent, such as unlawful interference with First Amendment rights, the right to engage in concerted activities under the FLRA, and so forth. The Board observed that, other than the STAA complaint, the determination of whether the other complaints had merit was within the jurisdiction of other agencies, and that the Complainant was "simply wrong" that the ARB's jurisdiction over the STAA complaint gave it jurisdiction over the other complaints. The ARB, however, noted that to the extent that evidence of other interactions with the Respondent shed light on the Respondent's reasons for firing the Complainant, they were relevant to the issue of motive.

[STAA Digest II D 1]
AMENDMENT OF COMPLAINT TO INVOKE ADDITIONAL WHISTLEBLOWER PROTECTION LAW; OSHA INVESTIGATION IS A PREREQUISITE

In Coates v. Southeast Milk, Inc. , ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the ARB affirmed the ALJ's denial of the Complainant's motion to amend his whistleblower complaint, which had been filed under the STAA, to invoke the protection of the TSCA because his criticisms of the Respondent included a charge that it had polluted ground water by dumping spoiled milk. The ARB indicated that such a complaint must first be filed with and investigated by OSHA as a prerequisite for a hearing and subsequent appeal.

[STAA Digest II K]
DISCOVERY; ALJ'S AUTHORITY TO LIMIT WHERE COMPLAINANT'S REQUESTS WERE BROAD AND VAGUE

In Coates v. Southeast Milk, Inc. , ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the ARB � noting that DOL ALJs have the authority to limit discovery � affirmed the ALJ's order finding that the Respondent had fully cooperated in discovery, even though it had objected to some of the Complainant's requests as overly vague, broad, burdensome or ambiguous, not related to the STAA complaint, or protected by privilege or attorney work product. The ALJ concluded that the Respondent had responded as well as possible, given the broad and vague nature of the Complainant's questions. The ARB found that the Complainant had not shown how any of the information turned over could have helped him prove issues related to his STAA complaint, but rather had made it clear that his discovery requests were meant to help him establish all his theories about the Respondent on matters such as overtime pay, excessive hours on duty, concerted activities, environment pollution, free speech, etc.

[STAA Digest II P]
SUMMARY DECISION; READING A PRO SE COMPLAINANT'S FILINGS LIBERALLY TO FIND STRONGEST ARGUMENTS SUGGESTED THEREIN

In Coates v. Southeast Milk, Inc. , ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the Complainant was proceeding pro se, and had filed a response to the Respondent's motion for summary decision that was grounded on speculation rather than specific evidence. The ARB explained how it would approach the response:

While a pro se litigant must of course be given fair and equal treatment, he cannot generally be permitted to shift the burden of litigating his case to the courts, nor to avoid the risks of failure that attend his decision to forgo expert assistance. Griffith v. Wackenhut Corp. ARB No. 98-067, ALJ No. 97-ERA-052, slip op. at n.7 (ARB Feb. 29, 2000). Pro se complainants have the same burdens of production and persuasion as complainants represented by counsel. Cf. Canterbury v. Administrator , ARB No. 03-135, ALJ No. 02-SCA-11, slip op. at 3-4 (ARB Dec. 29, 2004). We will, however, read the papers of a pro se complainant liberally and interpret them to raise the strongest arguments suggested therein. Griffith, supra. ; cf. Burgos v. Hopkins , 14 F.3d 787, 790 (2d Cir. 1994).

USDOL/OALJ Reporter at 9. The ARB stated that it studied the Complainant's briefs carefully to find the strongest arguments suggested therein. Ultimately, however, it found that the response was deficient.

---

---

Summary :

[STAA Digest VI A]
SUMMARY DECISION; ADVERSE EMPLOYMENT ACTION; FAILURE OF COMPLAINANT TO PRODUCE CREDIBLE EVIDENCE THAT HE WAS TERMINATED WAS NOT SUFFICIENT GROUND TO GRANT SUMMARY DECISION WHERE EMPLOYER ADMITTED THAT IT "MAY" HAVE CEASED THE COMPLAINANT'S DENTAL AND MEDICAL BENEFITS

In Dendy v. Har-Con Construction Corp. , ARB No. 05-121, ALJ No. 2005-STA-16 (ARB July 31, 2007), the Respondent argued that it was entitled to summary decision because the Complainant had not been terminated, but was only in non-pay status because he was receiving worker's compensation for an injury. Because the Complainant only produced hearsay statements from third party witnesses who purportedly had been informed by others that the Complainant no longer had a job with the Respondent, and because those individuals did not have authority to implement adverse action against the Complainant, the ALJ recommended granting summary decision. Upon automatic review, the ARB declined the recommendation and remanded for further proceedings. The ARB found that, for purposes of deciding whether to grant summary decision, it need not decide whether the Complainant was still employed, because the Respondent may have subjected the Complainant to adverse action by ending his medical and dental benefits, and not returning his phone calls inquiring about the status of his medical insurance. The ARB noted that the Respondent had admitted during a telephone conference call with the ALJ that it the Complainant's benefits "may have ceased." On appeal, the Respondent cited Mattern v. Eastman Kodak Co. , 104 F.3d 702, 707 (5th Cir. 1997), for the proposition that that only "ultimate employment decisions" qualify as adverse actions. The ARB, however, found that Mattern also indicated that ""'[u]ltimate employment decisions' include acts 'such as � granting leave � promoting, and compensating.'"" USDOL/OALJ Reporter at 8 (citation omitted). The ARB found that the Complainant's medical and dental benefits constituted a form of compensation, and that after Mattern , the Fifth Circuit acknowledged that a "reduction in pay or benefits" could constitute an adverse employment action. The ARB found that the Respondent's contention that such benefits cease for any employee on extended workers' compensation absences did not support the suggestion that its decision was not discriminatory. The ARB therefore concluded that the Complainant had successfully shown that there was a genuine issue of material fact in dispute as to whether the Respondent subjected the Complainant to adverse employment action, and whether that action was discriminatory.

---

---

Summary :

[Nuclear and Environmental Digest XIII B 8]
REFUSAL TO HIRE CASE; WHERE THE RESPONDENT PRESENTED AFFIDAVITS CONTENDING THAT NO HIRING RESULTED FROM THE ADVERTISEMENT TO WHICH THE COMPLAINANT APPLIED, AND THE COMPLAINANT PRESENTS NO EVIDENCE THAT HE WAS REJECTED FOR THE POSITION, THE CLAIM FAILS

In Hasan v. Enercon Services, Inc. , ARB No. 05-037, ALJ Nos. 2004-ERA-22 and 27 (ARB July 31, 2007), the ARB reiterated that in a "refusal to hire" case, a complainant to establish: 1) that he applied and was qualified for a job for which the employer was seeking applicants; 2) that, despite his qualifications, he was rejected and 3) that, after his rejection, the position was either filled or remained open and the employer continued to seek applicants from persons of complainant's qualifications. In Hasan , the ARB rejected the Respondent's contention that it was entitled to summary decision because its website advertisements, to which the Complainant had responded, were not placed to hire engineers for specific positions, but to recruit currently employed engineers and to enhance its database of potential candidates. The Respondent presented affidavits supporting the alleged motive for the website advertisements. Reviewing the language of the advertisements, however, the ARB found that a fact dispute existed as to whether the advertisements offered jobs, and therefore summary decision on this basis was not warranted. Nonetheless, the Respondent was entitled to summary decision because it also presented affidavits contending that the Respondent did not hire any engineers as a result of the advertisements. In response, the Complainant presented no evidence that he had been rejected for the advertised positions � an essential element of his refusal to hire claim.

One member of the Board dissented because in her view the fact that the Complainant was not hired was sufficient to prove that the Respondent rejected him. The dissenter stated that there was no precedent supporting the idea that there is any distinction under the ERA between being "not hired" and being "rejected." The dissenter wrote: "Although the majority's analysis could allow employers to insulate themselves from failure-to-hire cases, by simply omitting position titles from job advertisements and then not contacting non-selected applicants, the majority does not acknowledge this consequence and thus does not explain whether it is intended or, if not, how it can be avoided." USDOL-OALJ Reporter at 14. The dissenter also found that a material issue of fact existed on the question of whether anyone was hired in response to the advertisements, noting, inter alia , that 16 engineers had been hired during the time period covered by discovery.

Nuclear and Environmental Digest VII A 2]
DISCOVERY; REFUSAL TO HIRE CASE; ENTIRE PERSONNEL FILE OF NEWLY HIRED WORKERS; ALJ'S DISCRETION TO LIMIT DISCOVERY

In Hasan v. Enercon Services, Inc. , ARB No. 05-037, ALJ Nos. 2004-ERA-22 and 27 (ARB July 31, 2007), the Complainant had applied for jobs advertised on the Respondent's web site, and filed several ERA whistleblower complaints when he was not hired. In discovery, the Complainant sought the "names, qualifications and experience, location, job requirement and clients of those civil/structural engineers [Enercon] hired nationwide" during the relevant time period. The ALJ granted this discovery request, and the Respondent provided that information as well as resumes for 16 engineers it hired during that period. The Respondent also provided the names of the individuals who made the hiring decisions, the reason and procedure behind each new hire, the name of each client the new hires were sent to serve, and an explanation of why the Complainant was not selected. The ALJ, however, did not order discovery of the entire personnel files of each new hire because to do so would constitute an "unwarranted fishing expedition." On appeal, the Complainant argued that the ALJ erred in not ordering the Respondent to provide all documents in its possession concerning the 16 engineers. The ARB agreed with the ALJ , however, that the Complainant had not made a convincing argument as to why he needed the entire personnel file of the newly hired engineers, and found that the ALJ had not abused his discretion in denying an overly broad and unduly burdensome request.

One member of the Board dissented, finding that the ALJ could have given the Complainant access to those items in the personnel files that pertained to the hiring process, without risking disclosure of personal, medical, financial, or similar data relating to the hirees.

---

---

Summary :

[Nuclear and Environmental Digest VI E]
TIMELINESS OF REQUEST FOR HEARING; REGULATION REQUIRES FILING, NOT MERELY SENDING, REQUEST FOR HEARING WITHIN FIVE DAYS OF RECEIPT OF OSHA DETERMINATION

[Nuclear and Environmental Digest VI E]
EQUITABLE TOLLING; FAILURE TO ESTABLISH DUE DILIGENCE; PRO SE STATUS, SCRIVENER'S ERROR, ASSERTED LACK OF PREJUDICE TO OPPOSING LITIGANT

In Salsbury v. Edward Hines, Jr. Veterans Hospital, Dept. of Veterans Affairs , ARB No. 05-014, ALJ No. 2004-ERA-7 (ARB July 31, 2007), the ARB held that the regulation governing the time period for requesting an ALJ hearing in an ERA complaint, 29 C.F.R. § 24.4(d)(2), requires that the hearing request be filed, not merely sent, within five business days of receipt of the OSHA determination. In Salsbury , construing the facts in the light most favorable to the Complainant, the Complainant mailed his hearing request by regular mail within five days of receipt, but put the wrong address on the envelope. Within one or two days upon return of the mis-addressed mail, he sent another request for hearing. By the time the Chief Docket Clerk at OALJ received the hearing request, more than 30 days had passed since receipt of the OSHA determination, and the hearing request was not timely.

The ARB then considered whether equitable tolling should apply, and found that it did not because the Complainant had failed to exercise due diligence. The Complainant admitted that he received notice of OSHA's certified mail but did not take delivery of it. An OSHA investigator then personally delivered the determination letter, whereupon the Complainant did not file the hearing request by fax, telegram, hand delivery or next-day delivery service as specified in the instructions in the OSHA determination, but rather used regular mail. The Complainant offered no evidence that he followed up on his request during the months following his initial mailing of the request, and when he sent his request a second time, he again used regular mail.

The ARB rejected the Complainant's contention that failure to toll the limitations period would be too harsh for a pro se litigant. The ARB also rejected the argument that tolling should be permitted because the Complainant was in substantial compliance with the regulation and merely made a scrivener's error. The Board wrote: "A complainant who relies on alternative means for delivery of his hearing request, e.g., by regular mail, assumes the risk that the hearing request may be received beyond the due date, and therefore be untimely. ... Thus, Salsbury was charged with the duty of ensuring that his hearing request was properly filed. His "scrivener's error" would not have occurred had he followed the specific directions for filing a request for a hearing ...." USDOL/OALJ Reporter at 8-9 (citations omitted). The ARB rejected the Complainant's contention that the Respondent should be estopped from seeking dismissal because OSHA failed to serve the determination by certified mail, the ARB finding that the Respondent could not be faulted for the Complainant's failure to take delivery of the certified letter. The ARB rejected the Complainant's argument that a clerical error should be considered an "extraordinary circumstance" for purposes of equitable tolling. Finally, the ARB rejected the Complainant's argument tolling would not be prejudicial to the Respondent, finding that the Respondent had argued that it would be prejudiced, that lack of prejudice is not an independent basis for tolling, and that it was not the Respondent's burden to show that it would be prejudiced.

---

---

Summary :

[STAA Digest X A 3]
SETTLEMENT; FAILURE OF ALJ TO REVIEW SETTLEMENT HARMLESS ERROR IN STAA CASES BECAUSE OF DE NOVO REVIEW AND ISSUANCE OF FINAL ORDER BY THE ARB

In Sellers v. Source Interlink Companies , ARB No. 07-075, ALJ No. 2006-STA-44 (ARB July 31, 2007), the ARB did not find a copy of the settlement approved by the ALJ in the record, and requested that the ALJ forward it. In response, the ALJ's office provided the settlement agreement, but explained that the ALJ who had originally presided over the matter had died, and a different ALJ had issued the recommended order, apparently without actually reviewing the agreement. The ARB found that this was harmless error because it reviews an ALJ's legal conclusions de novo, because no party objected to the ALJ's failure to review the settlement, and because the ARB is required to issue the final decision in STAA cases.

---

---

Summary :

[STAA Digest XI A 1]
WITHDRAWAL OF "APPEAL;" REGULATORY PROCEDURE IS TO CONSTRUE WITHDRAWAL AS WITHDRAWAL OF OBJECTIONS TO OSHA FINDINGS AND TO AFFIRM THOSE FINDINGS

In Thompson v. Inland Northwest Dairies, LLC , ARB No. 07-085, ALJ No. 2007-STA-31 (ARB July 31, 2007), the ALJ issued a "Notice of Trial, Order to Show Cause Why Case Should Not Be Dismissed for Failure to Make Out a Prima Facie Case, and Pre-Trial Order." In response, the Complainant faxed a document withdrawing his appeal. The ALJ then issued a recommended order dismissing the complaint for lack of prosecution. Upon automatic review, the ARB found that the proper procedure under the STAA regulation at 29 C.F.R. § 1978.111(c) was to grant the request to withdraw the appeal (i.e., the Complainant's objections to OSHA's findings), and affirm the OSHA findings. The ARB, however, found that the error was harmless because it reviews an ALJ's legal conclusions de novo and is required to issue the final decision in STAA cases.

---

---

Summary :

FAILURE OF ADMINISTRATOR TO ISSUE FINAL DETERMINATION CURED BY ISSUANCE IN RESPONSE TO APPEAL

In In the Matter of Aiken , ARB No. 07-089 (ARB July 27, 2007), the ARB dismissed the Petitioners' appeal for Judgment on the Merits based on the contention that the Administrator had failed to issue a final decision or timely request additional time as directed in an earlier order of the ARB. The ARB dismissed the appeal without prejudice because the Administrator had, as part of its response to the appeal, issued the final decision. The ARB noted that the Petitioners were free to appeal that final decision should they so choose.

---

---

Summary :

TIME LIMIT FOR RECONSIDERATION OF SCA WAGE DETERMINATION WHERE CONTRACT WAS NOT YET ENTERED INTO

In Greater Orlando Aviation Authority , ARB No. 07-037 (ARB July 27, 2007), the Petitioner entered into a contract with a company to supply customer service representatives whose duties were related to reducing delays associated with airport baggage and passenger screening. The Petitioner later learned of a Transportation Security Administration (TSA) program under which TSA would reimburse such labor costs; however, the program required a SCA wage determination. TSA requested such a determination, and later resubmitted its request, and obtained a revised determination. Several months later, the Petitioner requested reconsideration of the revised determination. The Acting Chief for the Branch of Service Contract Wage Determinations denied the reconsideration request on the ground that it was untimely under 29 C.F.R. § 4.56(a), and the Petitioner then sought ARB review. The Administrator then filed a motion to dismiss the appeal without prejudice on the ground that it been concluded that the Petitioner had never entered into a contract with TSA, and therefore the time limit of section 4.56(a) had not begun to run. The Administrator stated he was now reviewing the request for reconsideration. The Petitioner did not object to this motion, and the ARB therefore dismissed the appeal without prejudice.

---

---

Summary :

MOTION FOR RECONSIDERATION OF ARB DECISION

In Powers v. Pinnacle Airlines, Inc. , ARB No. 05-022, ALJ No. 2004-AIR-32 (ARB July 27, 2007), the ARB denied the Complainant's motion for reconsideration where it was merely a rehashing of arguments that the Board had already considered and rejected, and a presented allegations not material to the basis for the Board's Final Decision and Order. The Board also indicated, but did not rule, that a motion for reconsideration filed 41 days after issuance of the Final Decision and Order might be considered untimely.

---

• Errata: PDF | HTML
• Corrected Decision: PDF | HTML

Editor's note: This decision was originally issued on June 29, 2007. An Errata was issued on July 16, 2007, and a corrected version of the decision was issued on that same date. For casenotes pertaining to Overall , see the June 2007 list of ARB decisions .