July 2019
Budri v. FirstFleet, Inc., ARB No. 2018-0055, ALJ No. 2018-STA-00033 (ARB July 30, 2019) (per curiam) (Order Vacating Final Decision and Order and Dismissing Complaint)
Casenote(s):USDOL/OALJ Reporter
COMPLAINANT FAILED TO NOTIFY ARB OF FILING OF COMPLAINT IN FEDERAL DISTRICT COURT RESULTING IN ARB ISSUING FINAL DECISION AND ORDER AFFIRMING ALJ’S DECISION; ARB VACATES ITS FINAL DECISION AND ORDER AND DISMISSES ADMINISTRATIVE COMPLAINT
In Budri v. FirstFleet, Inc., ARB No. 2018-0055, ALJ No. 2018-STA-00033 (ARB July 30, 2019) (per curiam), the ARB had issued a Final Decision and Order affirming the ALJ’s decision denying Complainant’s STAA complaint because it had not been timely filed. Five months later, the ARB learned that Complainant had filed an action in U.S. District Court about a month before the ARB issued its Final Decision and Order in the matter. The ARB noted that DOL’s regulation at 29 C.F.R. § 1978.114(b) provides that a complainant must file with the Assistant Secretary, the ALJ, or the ARB—depending on where the proceeding is pending—a copy of a file-stamped complaint within seven days of a filing a complaint in federal court. Notwithstanding Complainant’s failure to comply with this notice requirement, the ARB determined that it was necessary to vacate its Final Decision and Order and dismiss the administrative complaint.
Rimini v. J.P. Morgan Chase & Co., ARB Nos. 2018-0039, -0070, -0073, ALJ Nos., 2018-SOX-00010, -00023, 2019-SOX-00033 (ARB July 31, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
“SPECIAL CIRCUMSTANCES” REGULATION AT 29 C.F.R. § 1980.115; ARB FINDS GOOD CAUSE TO CONSIDER AND DISMISS SOX COMPLAINT FORWARDED BY ALJ FOR CONSOLIDATION WITH EXISTING APPEAL WHERE ALLEGATIONS IN NEW COMPLAINT SOLELY RELATED TO ACTIONS OF RESPONDENT IN REGARD TO APPEAL PENDING BEFORE THE ARB, AND WHERE ALL PRIOR SOX COMPLAINTS WERE FOUND TO HAVE BEEN UNTIMELY FILED AS A MATTER OF LAW
In Rimini v. J.P. Morgan Chase & Co., ARB Nos. 2018-0039, -0070, -0073, ALJ Nos., 2018-SOX-00010, -00023, 2019-SOX-00033 (ARB July 31, 2019) (per curiam), Complainant had pursued SOX whistleblower complaints before both DOL and federal court. In regard to the matters currently before the ARB, the ARB found that Complainant’s SOX administrative complaints filed in 2017 and 2018 failed as a matter of law as they were time-barred under 18 U.S.C. § 1514A(b)(2)(D). In addition, an ALJ had forwarded a 2019 SOX complaint to the ARB for consolidation with pending appeals. In this complaint, Complainant requested permission to amend his “earlier complaints” or to “make a new complaint” that the Respondent made false statements in its Notices of Supplemental Authority filings to the ARB. Citing the “special circumstances” regulation at 29 C.F.R. § 1980.115, the ARB found good cause to also dismiss the 2019 complaint.
[Editor’s note: The ALJ assigned to hear the 2019 complaint found “that Complainant’s concerns are best handled initially by the ARB, as the Complainant’s arguments here counter the Respondent’s filings in that case, and do not allege any new facts outside of the administrative appeal.” Rimini v. J.P. Morgan Chase, 2019-SOX-00033, slip op. at 2 (ALJ June 24, 2019).]
OFCCP v. Google, Inc., ARB No. 2017-0059, ALJ No. 2017-OFC-00004 (ARB July 29, 2019) (Final Administrative Order)
Casenote(s):
The ARB had dismissed the appeal in January 2019 based on receipt of OFCCP’s motion for voluntary dismissal. The ARB had denied OFCCP’s request for clarification of the dismissal order because the request was tardy. The parties then filed a Joint Motion for the Issuance of a Final Order based the parties’ agreement that “this matter was not adjudicated below as an expedited proceeding,” and the parties’ request that “the Board issue a final order as provided by 41 C.F.R. § 60-30.30.” The ARB granted the joint motion, and issued an order directing the parties to comply with the terms of the ALJ’s Recommended Decision and Order.
Booker v. Exelon Generation Co., LLC, ARB No. 2017-0038, ALJ No. 2016-ERA-00012 (ARB July 31, 2019) (per curiam) (Decision and Order of Remand)
Casenote(s):
SUMMARY DECISION; IN DECIDING A MOTION FOR SUMMARY DECISION, IT IS ERROR FOR ALJ TO WEIGH EVIDENCE AND MAKE FINDINGS OF FACT AS IF RESOLVING THE CASE ON THE MERITS; ALJS MUST BE CAREFUL NOT TO CONFLATE DECISIONAL STANDARDS APPROPRIATE FOR SUMMARY DECISION, 29 C.F.R. § 18. 72(a), WITH THOSE FOR A DECISION ON THE RECORD, 29 C.F.R. § 18. 70(d); FORMER DOES NOT ALLOW FOR WEIGHING THE EVIDENCE, WHILE THE LATTER DOES
In Booker v. Exelon Generation Co., LLC, ARB No. 2017-0038, ALJ No. 2016-ERA-00012 (ARB July 31, 2019) (per curiam), Complainant alleged that she was harassed and that her Unescorted Access Authorization (UAA) was revoked in retaliation for activity protected under the whistleblower provision of the ERA (reporting backdating of maintenance work orders). The ALJ granted Respondent’s motion for summary decision. The ARB remanded for an evidentiary hearing because the ALJ “improperly weighed the evidence and made findings of fact as if he was resolving the case on its merits based on the record before him in the absence of a hearing.” Slip op. at 7.
In regard to the harassment claim, the ARB noted the record contained “Complainant’s emails to her employer's agents in which she complained about her loss of access to emails, the reassignment of her job duties, and retaliation after she had engaged in protected activity. Slip op. at 8 (footnote omitted). The ARB stated that on summary decision, these emails were sufficient to raise genuine issues of material fact as to whether Respondent harassed her in violation of the ERA. The ARB found that the ALJ erred by weighing the additional evidence Respondent proffered and deciding which party he believed. The ARB stated: “While such fact-finding may be necessary and appropriate when adjudicating other types of motions or the merits of a complaint, it is not appropriate when resolving a motion for summary decision.” Id. at 9. The ARB found that the ALJ made a similar error in his conclusions concerning the suspension of Complainant's UAA and ultimate termination.
The ARB observed in a footnote:
We take this opportunity to recall that adjudicating the issue of whether there is contributing-factor causation is a fact-intensive determination, often involving complex and subtle questions of intent and motivation, which is usually challenging to resolve by summary decision. Henderson, ARB No. 11-013, slip op. at 14. And even if the ALJ determines that summary decision is appropriate, one must still take care not to conflate the decisional standards appropriate for summary decision, 29 C.F.R. § 18. 72(a), with those for a decision on the record. Id. § 18. 70(d). The former does not allow for weighing the evidence, while the latter does.
Id. at 11, n.31.
CONTRIBUTORY FACTOR CAUSATION; ALTHOUGH DOL MIGHT NOT HAVE THE AUTHORITY TO REVIEW THE SUBSTANCE OF A DECISION TO REVOKE UNESCORTED ACCESS AUTHORIZATION, DOL HAS THE AUTHORITY TO EXAMINE THE REASONS FOR THE REVOCATION IN THE CONTEXT OF WHISTLEBLOWER RETALIATION ALLEGATIONS
In Booker v. Exelon Generation Co., LLC, ARB No. 2017-0038, ALJ No. 2016-ERA-00012 (ARB July 31, 2019) (per curiam), Complainant alleged that she was harassed and that her Unescorted Access Authorization (UAA) at Respondent’s Atomic Plant was revoked in retaliation for activity protected under the whistleblower provision of the ERA (reporting backdating of maintenance work orders). The ALJ granted summary decision, but in so doing improperly weighed the evidence. The ARB thus remanded for an evidentiary hearing. In a footnote, the ARB observed:
Respondent asserts on appeal that the decision to revoke Complainant’s UAA is unreviewable because such a decision relates to national security clearances. We need not resolve this issue in light of our disposition of the instant appeal, but we note that even if the Department of Labor cannot review the substance of the decision to revoke a UAA, the Department may lawfully examine the reasons that the action was taken in the context of whistleblower retaliation allegations.
Id. at 9, n.29.
Lempa v. Hawthorne Global Aviation, ARB No. 2018-0046, ALJ No. 2017-AIR-00008 (ARB July 23, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
TIMELINESS OF COMPLAINT; 90 DAY LIMITATIONS PERIOD FROM DATE OF FINAL, DEFINITIVE AND UNEQUIVOCAL NOTICE OF ADVERSE ACTION
In Lempa v. Hawthorne Global Aviation, ARB No. 2018-0046, ALJ No. 2017-AIR-00008 (ARB July 23, 2019) (per curiam), the ARB found that substantial evidence supported the ALJ’s determination that the AIR21 complaint was untimely because Complainant was terminated on May 31, 2016, and he did not file a complaint with OSHA until September 12, 2016, over 100 days after adverse action had been taken against him. AIR21 sets a 90-day filing period for filing a complaint. 49 U.S.C. § 42121(b). The ARB adopted the ALJ’s decision as the final decision of the Secretary of Labor.
[Editor’s note: The dispute before the ALJ was over when Complainant received final, definitive and unequivocal notice of his termination. The ALJ also rejected Complainant’s assertion that the date Complainant was removed from the payroll database constituted a separate and discrete adverse employment action, finding that “a ministerial act that effectuates a prior communicated termination-such as formally removing Complainant from Respondent’s payroll-is not a separate and discrete adverse employment action.” ALJ’s decision at 53 (citations omitted). The ALJ also was not persuaded by Complainant’s claim that he discussed his allegations with and OSHA investigator prior to his termination because Complainant produced no evidence to support this contention. See Lempa v. Hawthorne Global Aviation, ALJ No. 2017-AIR-00008 (ALJ May 1, 2018).]
AWARD OF ATTORNEY’S FEES TO DEFENDANT NOT WARRANTED WHERE, ALTHOUGH APPEAL WAS GROUNDLESS, ARB COULD NOT CONCLUDE THAT THE APPEAL WAS FRIVOLOUS OR BROUGHT IN BAD FAITH
In Lempa v. Hawthorne Global Aviation, ARB No. 2018-0046, ALJ No. 2017-AIR-00008 (ARB July 23, 2019) (per curiam), the ARB adopted the ALJ’s decision finding that Complainant did not timely file his AIR21 complaint. The ARB denied Respondent’s request for attorney’s fees in the amount of $1,000 to be paid by Complainant. The ARB stated: “while we hold that the appeal is groundless, the evidence does not support a conclusion that this appeal was frivolous or brought in bad faith.” Slip op.at 3 (citing 29 C.F.R. § 1979.110(a); Reamer v. Ford Motor Co., ARB No. 09-053, ALJ No. 2009-SOX-003, slip op. at 7 (ARB July 21, 2011) (denying Respondent’s motion for attorney’s fees)).
MLB Transportation Inc., ARB No. 2016-0078 (ARB July 23, 2019) (Final Decision and Order)
Casenote(s):
ARB DECLINES REVIEW OF WHD ADMINISTRATOR ’ S SCA WAGE DETERMINATION AND CLASSIFICATION WHERE THE PETITON FOR REVIEW WAS NOT FILED PRIOR TO ANY AWARD, EXERCISE OF OPTION, OR EXTENSION OF A CONTRACT
In MLB Transportation Inc., ARB No. 2016-0078 (ARB July 23, 2019), the ARB had docketed Petitioners’ petition for review of a SCA wage determination and classification by the Administrator, Wage and Hour Division. Upon reviewing the record, however, the ARB set aside its Notice of Appeal and Order Establishing Briefing Schedule, and denied the Petition for Review because it concluded that “the Petitioners did not file their Petition for Review prior to any ‘award, exercise of option, or extension of a contract ’ on any of these service contracts as they must in order for the Board to review the wage determination they seek to challenge here. 29 C.F.R. § 8.6(d). In sum, the record demonstrates no exception to the regulatory rule that the ARB will not review a wage determination after award. It follows that this case should not have been docketed for review.” Slip op. at 4 (footnotes omitted) (emphasis as in original).
Yelinek v. All City Bail Bond Co., ARB No. 2018-0032, ALJ No. 2016-CFP-00003 (ARB July 17, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
COVERED PERSON OR SERVICE PROVIDER UNDER THE CONSUMER FINANCIAL PROTECTION ACT; EXEMPTION OF INSURERS; COMPLAINT DISMISSED WHERE BAIL BOND AGENCY WAS CONSIDERED A SURETY UNDER STATE LAW
In Yelinek v. All City Bail Bond Co., ARB No. 2018-0032, ALJ No. 2016-CFP-00003 (ARB July 17, 2019) (per curiam), Complainant, a bail bond agent, filed a Consumer Financial Protection Act (Consumer Financial Protection Act) complaint alleging that her employer fired her in because she expressed concerns that customers were being unlawfully surcharged during credit card transactions. The ARB affirmed the ALJ’s finding that the employer was not shown to be a covered “covered person or service provider” under the CFPA. The ARB wrote:
The CFPA prohibits a “covered person or service provider” from terminating or in any other way discriminating against any covered employee because such employee engages in any of the protected activities identified under 12 U.S.C. § 5567(a)(1)-(4) (emphasis added). Specifically, a “covered person or service provider” under the CFPA engages “in offering or providing a consumer financial product or service.” But a “financial product or service” does not include “the business of insurance.” The “business of insurance means the writing of insurance or the reinsuring of risks by an insurer, including all acts necessary to such writing or reinsuring and the activities relating to the writing of insurance or the reinsuring of risks conducted by persons who act as, or are, officers, directors, agents, or employees of insurers or who are other persons authorized to act on behalf of such persons.”
Slip op. at 2-3 (footnotes omitted). Applying this law to the facts of the case, the ARB reviewed the applicable state law and found that Respondent, a bail bond agency, was a “person” engaged in the “business of insurance” as defined under the CFPA.
On appeal, Complainant argued that “the additional undertakings Respondent makes relating to its bail bond business, including the extension of credit and providing payment plans allowing its customers to defer payment of insurance premiums, as well as servicing loans, falls outside of the definition of the ‘business of insurance. ’ ” Id. at 4. The ARB, however, was not persuaded, stating: “But as the ALJ explained, such undertakings that Respondent makes relating to its bail bond business are “activities relating to the writing of insurance” which are also included within the CFPA’s definition of ‘the business of insurance. ’ ” Id. (footnote omitted).
J.D. Eckman, Inc., ARB No. 2017-0023, ALJ No. 2015-DBA-00030 (ARB July 9, 2019) (en banc) (Decision and Order of Remand)
Casenote(s):
DEBARMENT; STANDARD FOR DEBARMENT FOR A DAVIS-BACON RELATED ACT VIOLATION IS HEIGHTENED, REQUIRING A FINDING OF A WILLFUL OR AGGRAVATED VIOLATION; ALJ’S APPLICATION OF WRONG STANDARD MAY BE HARMLESS ERROR WHERE SHE FOUND A WILLFUL VIOLATION, BUT ONLY IF THE FINDING OF WILLFUL VIOLATION IS SUPPORTED BY SUBSTANTIAL EVIDENCE (WHICH IN THE INSTANT CASE IT WAS NOT)
DEBARMENT; WILLFUL OR AGGRAVATED VIOLATION OF A DAVIS-BACON RELATED ACT (DBRA) REQUIRES ACTUAL KNOWLEDGE OR AWARENESS OF THE VIOLATION, AND NOT MERELY ONE’S OBLIGATIONS UNDER THE DBRA OR ANY APPLICABLE CONTRACTS
In J.D. Eckman, Inc., ARB No. 2017-0023, ALJ No. 2015-DBA-00030 (ARB July 9, 2019) (per curiam), the ALJ had ordered certain Respondents (a first-tier subcontractor — 446 Painting — and its president — Hauth) to be debarred for violating the prevailing wage provisions at 29 C.F.R. § 5.5(a)(1) and (4), in a matter involving the Federal-Aid Highway Act, which is a Davis-Bacon Related Act (DBRA). On appeal, it was uncontroverted that the ALJ had cited the wrong debarment standard. She had “applied the debarment standard for the DBA [29 C.F.R. § 5.12(a)(2)] (requiring only a disregard of obligations for debarment), rather than the heightened requirement for debarment for DBRA violations [29 C.F.R. §5.12(a)(l)] (requiring a willful or aggravated violation for debarment).” Slip op. at 4-5 (footnotes omitted). The WHD Administrator, however, argued that this was harmless error because the ALJ had found that the Respondents in question had willfully violated the Act. The ARB stated that this finding may have been dispositive if supported by substantial evidence—however it was not. The ALJ had relied on the fact that a then vice-president of one of the Respondents had failed to read the “DBA” provisions in the contract and had not ensured compliance as warranted. The ARB wrote:
Willful or aggravated violation of the DBRA requires actual knowledge or awareness of the violation, and not merely one’s obligations under the DBRA or any applicable contracts. The closest the ALJ came to finding that Hauth had any knowledge of violations was “that he was at least on notice that there was a delay in Panthera’s payrolls” because of “paperwork requirements, ” despite his and Respondent Manganas’ denials at the hearing that Hauth had anything to do with payroll. While these findings of constructive knowledge may tend to support a “disregard of obligations” debarment standard, they fall significantly short of satisfying the appropriate “aggravated or willful” standard. Indeed, the Assistant District Director for the district office of the Wage and Hour Division testified that other than the contract that originated the work in this case, he did not have any documentation that would support a contention that Hauth willfully violated the Act. . . . He also testified that there was no evidence that Hauth knew about a violation other than that he represented himself as vice-president and signed the contract as such. . . . Thus, we hold that the ALJ’s putative finding that Hauth “committed willful violations of the DBA,” . . . is not supported by a preponderance of the evidence of record.
Slip op. at 6 (citations and footnotes omitted) (emphasis as in original). The ARB also found that the ALJ’s finding that Respondent Hauth was not “entirely credible” did not constrain a reversal by the ARB, as credibility was not relevant to the ALJ’s legal error; her credibility determination was ambiguous insofar as it was not linked to any specific findings of fact related to the error; and the ALJ’s reference in relation to the credibility determination to the “DBA” rather than the “DBRA” was clearly erroneous. The ARB remanded for the ALJ to issue revised findings of fact and conclusions of law consistent with the record, the ARB’s decision, and the correct regulation.
Ellerbee v. Annett Holdings, Inc., ARB No. 2019-0059, ALJ No. 2019-STA-00011 (ARB July 3, 2019) (Order Dismissing Petition for Review)
Casenote(s):
[STAA Digest II Q]
TIMELINESS OF PETITION FOR REVIEW; TYPICAL CHALLENGES FACED BY A SELF-REPRESENTED LITIGANT WERE NOT, IN THEMSELVES, GROUNDS FOR EQUITABLE TOLLINGIn Ellerbee v. Annett Holdings, Inc., ARB No. 2019-0059, ALJ No. 2019-STA-00011 (ARB July 3, 2019), the ARB dismissed Complainant’s pro se petition for review as untimely. The ARB noted that Complainant “describes delays in reviewing his mail, problems filing his petition online, and the difficulties inherent in being a self-represented litigant while employed full-time.” Slip op. at 1 (footnote omitted). The ARB also noted that “Complainant makes no assertion that Respondent or any other person prevented his timely filing or that Complainant had misfiled the petition with another agency.” Id. The ARB stated that “[t]he matters raised by Complainant are not extraordinary and are similar to those which confront any self-represented individual attempting to file a petition with this Board.” Id. The ARB thus declined to apply equitable tolling to extend the filing deadline. The ARB also noted Complainant’s assertion that he did not timely receive the ALJ’s decision, and only had four days left to file his petition. The ARB, however, was not persuaded by this argument, noting that Complainant received the ALJ’s decision on May 10, 2019, but did not file his petition until May 20, 2019. The ARB also noted, but did not decide, that if FRAP applied three days would have been added to the filing period.
Gryga v. Henkels & McCoy, Inc., ARB No. 2018-0017, ALJ No. 2017-SOX-00049 (ARB July 3, 2019) (Order Dismissing Complaint)
Casenote(s):
Complainant’s petition for ARB review dismissed after the ARB learned that Complainant had filed an action in the U.S. District Court for the Northern District of Illinois (No. 19-cv-1276).
Navarro v. RCL Wiring, LP, ARB Nos. 2019-0040, -0043, ALJ No. 2016-FRS-00017 (ARB July 1, 2019) (Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice)
Casenote(s):
The ARB approved the parties’ settlement agreement.