USDOL/OALJ Reporter: ARB Decision Caselist - July 2013

[STAA Digest IX B 2 b iii]
BACK PAY; ENROLLMENT IN COLLEGE DOES NOT END BACK PAY LIABILITY WHERE COMPLAINANT ONLY ENROLLED AFTER A FRUITLESS SEARCH FOR COMPARABLE EMPLOYMENT, AND WHERE RESPONDENT DID NOT REINSTATE COMPLAINANT AFTER ALJ ORDERED REINSTATEMENT

In Cole v. R. Construction Co. , ARB Nos. 12-037, 12-039, ALJ No. 2011-STA-22 (ARB July 31, 2013), the ALJ used the date the Complainant started college as the end date for a back pay award. The ARB held that this was error where the Complainant requested back pay beyond the date he became a full-time student, following a fruitless search for comparable employment, and after entry a reinstatement order by the ALJ. The Complainant had requested reinstatement soon after the ALJ's order, but the Respondent did not respond to the request. The ARB distinguished Ass't Sec'y & Cotes v. Double R. Trucking, Inc., ARB No. 99-061, ALJ No. 1998-STA-34 (ARB July 16, 1999), on the ground that the Complainant in that case had not requested backpay beyond the date he voluntarily became a full-time student.

Order approving Complainant's withdrawal of the appeal.

ARB declines review of ALJ decision.

Dismissal of Complainant's appeal for failure to file opening brief.

[STAA Digest IX A 10]
MOTION FOR STAY OF ALJ S REINSTATEMENT ORDER; ARB APPLIES FOUR-FACTOR TEST; GENERALIZED AND UNSUBSTANTIATED CLAIMS OF IRREPARABLE HARM ARE INSUFFICIENT; A COMPLAINANT CANNOT WAIVE REINSTATEMENT UNTIL A BONA FIDE, UNCONDITIONAL OFFER OF REINSTATEMENT IS MADE

In Blackie v. D. Pierce Transportation, Inc. , ARB No. 13-065, ALJ No. 2011-STA-55 (ARB July 24, 2013), the ALJ found that the Respondent violated the whistleblower provision of the STAA, and ordered the Respondent to make a bona fide offer of reinstatement to the Complainant. The Respondent filed a motion before the ARB for a stay of reinstatement while the appeal is pending, contending that the Complainant indicated before the ALJ that he did not wish to be reinstated, that the record evidenced irreparable animosity between the Complainant and the Respondent and its employees, and that the record established the Complainant's lack of skill as a truck driver.

The ARB applied a four factor test: (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 the stay; and (4) the public interest in granting a stay.

The ARB found that the Respondent failed to meet these criteria. The motion failed to demonstrate a likelihood of success on the merits. The Respondent only offered generalized and unsubstantiated concerns of irreparable harm. The ARB stated that "any alleged irreparable harm must be actual and not theoretical and must be certain to occur. " USDOL/OALJ Reporter at 3 (footnote citation omitted). The ARB stated that although the Complainant may have indicated to the ALJ that he did not want to be reinstated, he filed an opposition to the motion for a stay of a reinstatement offer. Moreover, the ARB noted that it had ruled that a complainant cannot waive reinstatement until the employer makes a bona fide, unconditional offer of reinstatement. No such offer having been made, the Respondent's waiver argument was unavailing. The ARB noted that the Complainant had waited to have his job, pay and benefits restored, and therefore would surely continue to suffer harm if the reinstatement order were stayed. Finally, the ARB found that the public interest militates against a stay, citing the regulatory history of the similar SOX regulations in which OSHA stated that " the purpose of interim relief, to ... avoid a chill on whistle blowing activity, would be frustrated if reinstatement did not become effective until after the administrative adjudication was completed. " USDOL/OALJ Reporter at 4, quoting 69 Fed Reg. 52109 (Aug. 24, 2004). One member of the Board concurred, but stated that he would have limited discussion to the failure of the Respondent to sufficiently articulate how it will suffer irreparable injury, and reserved further analysis for the decision on the merits.

[STAA Whistleblower Digest XI C 3]
COMPLAINANT S CONCESSION BEFORE THE ARB THAT A RESPONDENT HAD NOT BLACKLISTED HIM, RATHER THAN FILING AN OPENING BRIEF, TREATED AS A REQUEST TO WITHDRAW THE COMPLAINANT S REQUEST FOR REVIEW IN REGARD TO THAT RESPONDENT

In Carter v. Marten Transport, Ltd. , ARB No. 13-050, ALJ No. 2009-STA-31 (ARB July 24, 2013), alleged that two Respondents violated the employee protection provision of the STAA through blacklisting. The ALJ dismissed the complaints. On appeal, rather than filing an opening brief, the Complainant filed a document indicating that he had accepted a settlement and wanted to have the case dismissed. The Board denied dismissal of the appeal based on a settlement because under the regulations, any adjudicatory settlement must be approved by the ARB or the ALJ, and the parties had not supplied a copy of the settlement to the Board. The Board ordered the parties to submit the settlement or to show cause why the Board should not continue its adjudication. A copy of the settlement was submitted, but the Board noted upon review that it only covered one of the Respondents, and ordered the Complainant to show cause why it should not dismiss his appeal in regard to the second Respondent because he had not filed an opening brief. In response, the Complainant stated that he wanted to settle the complaint against the first Respondent based on the settlement, and averred that the second Respondent "did not blacklist me in this Appeal." The ARB reviewed and approved the settlement vis- -vis the first Respondent, and treated the Complainant's response as to the second Respondent as a request to withdraw his petition for review in regard to the second Respondent, not because of a settlement, but because it had not blacklisted him. The ARB thus dismissed the complaints against both Respondents.

Order closing case because Complainant failed to respond to ARB's order to show cause whey his motion for reconsideration of earlier dismissal order was not moot.

Waiver provisions are limited to the right to sue in the future on claims or causes of action arising out of facts or any set of facts occurring before the date of the agreement; such waivers do not apply to actions taken by the employer subsequent to the agreement date. We construe 2 consistently with this precedent.

Award of attorney's fees for work before ARB.

The ARB summarily affirmed the ALJ decision and order because substantial evidence supported the ALJ's finding that the Respondent proved by clear and convincing evidence that it would have terminated the Complainant regardless of any alleged protected activity. Specifically, the Respondent demonstrated that its decision to terminate the Complainant's employment was based on his failure to update his Flight Attendant Operations Manual, as required by FAA regulations. The ARB stated that "This failure was a serious violation of the company's policies, particularly given that Jones flew twelve flights without the proper FAOM updates and that he was on a performance warning status during that time." USDOL/OALJ Reporter at 4.

OFCCP JURISDICTION UNDER PRONG ONE OF 41 C.F.R. § 60-1.3 TO CONDUCT A COMPLIANCE REVIEW OF A HOSPITAL UNDER SUBCONTRACT TO A TRICARE REGIONAL CONTRACTOR; SECTION 715 OF THE NATIONAL DEFENSE AUTHORIZATION ACT OF 2012 BARS PRONG TWO, BUT NOT PRONG ONE JURISDICTION

OFCCP JURISDICTION TO CONDUCT A COMPLIANCE REVIEW OF A HOSPITAL UNDER SUBCONTRACT TO A TRICARE REGIONAL CONTRACTOR; QUESTION OF WHETHER TRICARE IS A FEDERAL FINANCIAL ASSISTANCE PROGRAM NOT SUBJECT TO OFCCP S JURISDICTION; ARB CONCLUDES THAT CONGRESSIONAL INTENT IS CRUCIAL, AND REMANDS FOR FURTHER DEVELOPMENT OF THE RECORD ON THAT QUESTION

In OFCCP v. Florida Hospital of Orlando , ARB No. 11-011, ALJ No. 2009-OFC-2 (ARB July 22, 2013) (en banc), the ARB granted reconsideration of its decision in OFCCP v. Florida Hospital of Orlando , ARB No. 11-011, ALJ No. 2009-OFC-2 (ARB Oct. 19, 2012) (en banc), in which it had held that an OFCCP compliance review of a hospital providing services to TRICARE patients was barred by Section 715 of the National Defense Authorization Act of 2012 (hereinafter "Section 715"). The ARB rendered its decision on the merits on reconsideration in a separate opinion by the full Board issued that same day, OFCCP v. Florida Hospital of Orlando , ARB No. 11-011, ALJ No. 2009-OFC-2 (ARB July 22, 2013) (en banc). The ARB determined that the Florida Hospital contract qualified as a subcontract under the first prong of the regulation as a matter of law, but that because of an unaddressed issues of law and material facts, a remand was necessary for the ALJ to consider whether OFCCP is nevertheless barred from asserting jurisdiction over Florida Hospital because the payments the Hospital receives under the TRICARE program constitute federal financial assistance. [NB: The ARB's decision is detailed and technical, and researchers must read the full decision to fully understand the issues presented and the ARB's rulings on those issues.]

OFCCP modifies its assertion of jurisdiction to rely on Prong One of 41 C.F.R. § 60-1.3

Although originally asserting jurisdiction over the hospital to conduct a compliance review under the second prong of 41 C.F.R. § 60-1.3, OFCCP withdrew this basis for jurisdiction because during the course of the litigation Congress enacted the Section 715 bar, and OFCCP essentially conceded that Section 715 applies to bar jurisdiction under prong two. OFCCP instead now seeks instead to establish jurisdiction under the first prong of 41 C.F.R. § 60-1.3(1).

Section 715 does not bar OFCCP jurisdiction under Prong One

The ARB first rejected the Respondent's argument that Section 715 bars OFCCP jurisdiction under both prong one and two of 41 C.F.R. § 60-1.3, based on the straightforward terms of the law and the legislative history of the provision. See 10 U.S.C.A. § 1097b(a)(3).

The Respondent is a subcontractor within the meaning of the regulations; meaning of "nonpersonal services"; "Necessary for Performance" condition

The ARB then turned to the Respondent's argument that it was not, within the meaning of the regulations, a subcontractor subject to incorporation of the EEO clause into its service contract. The ARB described the regulatory context as follows:

   The regulations enforcing OFCCP's authority to conduct compliance reviews of Federal government contractors and subcontractors under the EO Laws are set out at 41 C.F.R. Chap. 60 (Office of Federal Contract Compliance Programs, Equal Employment Opportunity). These regulations apply to all Government contracting agencies and to contractors and subcontractors who perform under Government contracts. Under the regulations, a "contract" is "any Government contract or subcontract." A "Government contract" means any "agreement or modification thereof between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services," and the term "contractor" means "a prime contractor or subcontractor."

   "Prime contractor" refers to "any person holding a contract and, for the purposes of Subpart B of this part, any person who had held a contract subject to the order." The term "subcontractor" means "any person holding a subcontract and, for the purpose of Subpart B of this part, any person who had held a subcontract subject to the order."26 A "subcontract" is defined as follows:

Subcontract means any agreement or arrangement between a contractor and any person (in which the parties do not stand in the relationship of the employer and an employee):

(1) For the purchase, sale or use of personal property or nonpersonal services which, in whole or in part, is necessary to the performance of any one or more contracts;

(2) Under which any portion of the contractor's obligation under any one or more contracts is performed, undertaken or assumed.

41 C.F.R. § 60-1.3.

   The regulations state that "each contracting agency shall include the . . . equal opportunity [EEO] clause contained in Section 202 of the [Executive] [O]rder in each of its Government contracts." The regulations state that the EEO clause is "incorporated by reference in all Government contracts and subcontracts," and "by operation of the [Executive] Order" is "considered to be a part of every contract and subcontract required by the Order and the regulations . . . whether or not it is physically incorporated in such contracts and whether or not the contract between the agency and the contractor is written."

USDOL/OALJ Reporter at 10-11 (footnotes omitted) (see the decision at 9-12 for a fuller description of the regulatory process).

One of the central issues in the instant case was the meaning of the term "nonpersonal services" in the service contract, a term not defined by the EO laws. The ARB, however, found that the definition had been settled in its decision in OFCCP v. UPMC Braddock , ARB No. 08-048, ALJ Nos. 2007-OFC-001, -002, -003 (ARB May 29, 2009), aff d UPMC Braddock v. Harris , __ F. Supp. 2d __, 2013 WL 1290939 (D.D.C. Mar. 30, 2013), and found that the contract was for the purchase of nonpersonal services because the undisputed facts demonstrated that the hospital's medical care professionals operate independently from the TRICARE regional contractor when deciding the ultimate care provided to beneficiaries.

Another issue was the second condition for prong one jurisdiction, the "Necessary-for-Performance" condition." The ARB stated "The threshold for the Necessary for Performance Condition is low. By its plain terms, the Florida Hospital contract satisfies this condition if Florida Hospital provides, "in whole or in part," personal property or nonpersonal services necessary to the performance of the HMHS contract. We find that it does." USDOL/OALJ Reporter at 27. Although the Respondent advanced several arguments to minimize the significance of its role with respect to the contract with the regional TRICARE contractor, the ARB found that "[t]he record indisputably establishes medical services as the essential reason for the TRICARE-HMHS-Florida Hospital arrangement." USDOL/OALJ Reporter at 29. The ARB stated: "Like the intermediary in UPMC Braddock , HMHS is much more than an insurer; HMHS must establish and maintain a high-level network to ensure that members actually receive medical care, not simply insurance or access to health care." USDOL/OALJ Reporter at 29. The ARB found immaterial the Respondent's argument that it had not expressly agreed to be such a subcontractor, stating that it had previously rejected this argument in UPMC Braddock (equal opportunity clause is incorporated into any federal contract or subcontract even if it has not been expressly included).

The ARB thus concluded that OFCCP has jurisdiction under prong one as a matter of law.

Potential exemption based on TRICARE's possible status as a "federal financial assistance" program

The ARB then addressed whether the Respondent could demonstrate that it is nevertheless exempt from OFCCP jurisdiction because the payments it receives under the TRICARE program constitute federal financial assistance.

The Respondent argued in a cross-motion for summary judgment "that TRICARE has stated that it is a federal financial assistance program subject to Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000d et seq . (West 2003), and substantially resembles the federally subsidized health programs like Medicare Part A and Part B. Because courts have found that Medicare payments constitute federal financial assistance, Florida Hospital argues that the payments to Florida Hospital also constitute federal financial assistance not subject to OFCCP's jurisdiction." USDOL/Reporter at 31 (footnote omitted). OFCCP's response was that "TRICARE was established to ensure or optimize the delivery of quality medical services to military personnel (or uniformed services) and, therefore, it is different from Medicare and not a federal financial assistance program." ." USDOL/Reporter at 31-32. The ALJ had concluded that TRICARE differs from Medicare, and therefore is not a federal financial assistance program. The ARB found that the parties failed to address the most critical question the intention of the government. Noting that the statutes governing TRICARE created a "very comprehensive" program, the ARB found that "[n]either of the parties analyzed whether Congress intended that funding for any of these statutory provisions constituted federal financial assistance or a part of military compensation or entitlements that TRICARE would provide through military medical providers and/or private medical providers." USDOL/OALJ Reporter at 35. The ARB also noted that TRICARE had evolved into the current program, making analysis of congressional intent complex. The ARB found that the parties had not specifically analyzed the evolutions and whether Congress intent in those evolutions was to provide federal financial assistance. The ARB also found that the record must be developed to establish "which programs, medical services, beneficiaries and corresponding federal funding source(s) relate to the medical services Florida Hospital provides prior to the ALJ's analysis of the Congressional intent question." USDOL/OALJ Reporter at 36. The Board concluded by stating: "Our ruling on this issue of federal financial assistance is simply that the parties must provide additional argument and supplement the facts as necessary on the issue of congressional intent to allow the ALJ to make the necessary additional findings of fact and ultimate determination on the issue of federal financial assistance." The majority of the Board thus remanded to the ALJ for further proceedings.

Two members of the Board dissented on the ground that Section 715 removes OFCCP jurisdiction under both prongs of the regulation.

MOTION FOR RECONSIDERATION; ARB FINDS THAT FOUR-PART TEST OF AVLON v. AMERICAN EXPRESS IS NOT EXCLUSIVE BASIS FOR RECONSIDERATION AND GRANTS RECONSIDERATION ON A QUESTION OF EXCEPTION IMPORTANCE RELATING TO OFCCP JURISDICTION TO CONDUCT COMPLIANCE REVIEWS

WHERE TIMELINESS OF REQUEST FOR RECONSIDERATION IS GAUGED BASED UPON A REASONABLE PERIOD, THE FEDERAL GOVERNMENT IS GENERALLY AFFORDED A LONGER PERIOD IN RECOGNITION OF NEED FOR THOROUGH REVIEW BEFORE ASKING FOR REHEARING

In OFCCP v. Florida Hospital of Orlando , ARB No. 11-011, ALJ No. 2009-OFC-2 (ARB July 22, 2013) (granting reconsideration), the ARB granted reconsideration of an en banc decision it had rendered in October 2012 finding that Section 715 of the National Defense Authorization Act for Fiscal Year 2012 precluded the OFCCP's exercise of jurisdiction over a TRICARE network hospital under "Prong Two" of the "subcontract" definition in OFCCP's regulations at 41 C.F.R. § 60-1.3(2). Because of a split panel, the ARB had not resolved whether OFCCP had enforcement jurisdiction under "Prong One" of the "subcontract" definition, at 41 C.F.R. § 60-1.3(1). The OFCCP sought reconsideration arguing that the ARB's failure to resolve the question of Prong One jurisdiction will impede compliance reviews, needlessly protract litigation, and adversely affect the rights of employees of TRICARE network hospitals by leaving them vulnerable to discrimination. The ARB stated that it generally uses a four factor test stated in Avlon v. American Express Co. , ARB No. 09-089, ALJ No. 2008-SOX-51 (ARB Sept. 14, 2011), in determining whether to reconsider a previously rendered decision The ARB stated that the four factors are not the sole criteria upon which reconsideration may be granted, and that it has adopted principles employed by federal courts under FRAP 40 and FRCP 59 and 60 in deciding requests for reconsideration. The ARB noted that the FRAP use a more general and lenient standard than the ARB's four-part test. The ARB further noted that the 4th Circuit local rules also permit reconsideration where the proceeding involves one or more questions of exceptional importance. The ARB found the 4th Circuit local rule to be persuasive, and that the purpose of a rehearing is to provide an opportunity to see that justice is done. The ARB found that in the instant case, a majority of the Board failed to appreciate the extent to which OFCCP raised an independent ground for Prong One jurisdiction. The ARB also observed that reconsideration in the instant case was not of the merits but the ARB's decision to consider the merits of an important legal issue in an exceptional case where it previously bypassed the issue on procedural grounds.

In ruling on the OFCCP motion, the ARB noted the Respondent's opposition on the ground that the motion was not timely. The ARB stated that in absence of rules of procedure governing the timeliness of such motions, it generally insists that the motion be made within a reasonable period following issuance of the decision for which reconsideration is sought. The ARB further noted that the Federal court rules allow the Federal government or its officers and agencies a longer period for the filing of such motions.in recognition of the fact that the Solicitor General needs time to conduct a thorough review of the merits of a case before requesting a rehearing.

Two members of the ARB dissented, finding that OFCCP had failed to advance an argument satisfying the criteria ARB requires for a grant of reconsideration.

Approval of settlement agreement.

Award of attorney's fees for work before the ARB.

ARB dismissed FRSA whistleblower complaint after Complainant notified that he would file an original action in U.S. district court, and after the Complainant did not respond to the ARB's order to show cause why the claim before the Department of Labor should not be dismissed. The Respondent did not oppose the ARB dismissal, but stated that it reserved the right to contend in district court that the Complainant's federal court complaint was barred by claim or issue preclusion, waiver, estoppel, failure to exhaust remedies or "any other applicable legal doctrine."

DE NOVO PROCEEDING IN FEDERAL DISTRICT COURT; RESPONDENT'S OBJECTIONS TO DISMISSAL OF ADMINISTRATIVE APPEAL BEFORE THE ARB INEFFECTIVE BECAUSE THE REGULATIONS ONLY REQUIRE COMPLAINANT TO GIVE NOTICE OF INTENT TO OBTAIN DE NOVO FEDERAL DISTRICT COURT REVIEW AFTER THE DISTRICT COURT FILING

In Candler v. URS Corp. , ARB No. 13-045, ALJ No. 2012-SOX-5 (ARB July 3, 2013), The ARB was notified that the Complainant filed her SOX complaint in federal district court seeking de novo review under 18 U.S.C.A. § 1514A. The ARB issued an order to show cause why the Board should not dismiss the administrative complaint under 29 C.F.R. § 1980.114. The Complainant then filed a notice that she was electing to proceed in federal district court. The Respondent opposed dismissal of the administrative complaint "because she waived her right to go to district court in a representation to the ALJ, Candler engaged in bad faith delay, and literal application of section 1514A(b)(1)(B) to this case would lead to an absurd result." The ARB, however, dismissed the complaint, writing that "[p]ursuant to 29 C.F.R. § 1980.114(b), a complainant is required to give notice of his or her intent to obtain de novo review in district court within seven days after filing a complaint in the court."