USDOL/OALJ Reporter Decisions of the Administrative Review Board
August 2006
Devine v. Blue Star Enterprises, Inc. , ARB No. 04-109, ALJ No. 2004-ERA-10 (ARB Aug. 31, 2006)
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Final Decision & Order
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SCOPE OF RECORD BEFORE ARB ON REVIEW; NEW EVIDENCE
In Devine v. Blue Star Enterprises, Inc. , ARB No. 04-109, ALJ No. 2004-ERA-10 (ARB Aug. 31, 2006), the Complainant submitted documents with his appellate brief that were not submitted to the ALJ in conjunction with his response to the Respondent's motion for summary decision. The Respondent objected. The ARB applied 29 C.F.R. § 18.54(c) -- and finding that the Complainant had not established that the additional exhibits were not available at the time of the ALJ's consideration of the motion for summary decision -- refused to consider those exhibits on appeal.
TIMELINESS OF ERA COMPLAINT; LIMITATIONS PERIOD BEGINS TO RUN WHEN NOTICE OF ADVERSE ACTION IS RECEIVED
The limitations period in an ERA whistleblower case begins to run when the employee is notified of the adverse action, not when it actually takes effect. Thus, in Devine v. Blue Star Enterprises, Inc. , ARB No. 04-109, ALJ No. 2004-ERA-10 (ARB Aug. 31, 2006), the limitations period began to run when the Complainant was notified of his layoff.
LEGITIMATE NON-DISCRIMINARY REASON FOR LAYOFF; JOB CAME TO AN END
In Devine v. Blue Star Enterprises, Inc. , ARB No. 04-109, ALJ No. 2004-ERA-10 (ARB Aug. 31, 2006), the ARB assumed, for purposes of deciding the Respondent's motion for summary decision, that the Complainant had raised a factual issue about whether he engaged in protected activity, but nonetheless found that the existence of such an issue was not fatal to the Respondent's motion because it was undisputed that the job for which the Complainant had been engaged to perform had come to an end and because it was undisputed that the Complainant lacked the necessary qualifications for the position. In Devine , the Complainant had been engaged as a hazardous waste truck driver and had been dispatched for one or two days of transporting materials from a water purge tank. When the Complainant learned that he did not possess a CPR training requirement, he expressed concern to the Respondent that it had failed to verify that personnel had the required training for assigned tasks. According to the Complainant, when the Respondent ordered him to continue to haul hazardous material, he used his "Stop Work Authority" to shut down the job.
Gage v. Scarsella Brothers, Inc. , ARB No. 05-095, ALJ No. 2005-STA-21 (ARB Aug. 31, 2006)
Title:
Final Decision & Order
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PROTECTED ACTIVITY; NON-SAFETY RELATED COMPLAINT ABOUT THE CONDITION OF THE VEHICLE IS NOT PROTECTED UNDER THE STAA In Gage v. Scarsella Brothers, Inc. , ARB No. 05-095, ALJ No. 2005-STA-21 (ARB Aug. 31, 2006), the ARB found that subtantial evidence supported the the ALJ finding that the Complainant's non-safety related complaint about a damaged fender was not protected activity under the STAA.
Rose v. ATC Vancom, Inc. , ARB No. 05-091, 2005-STA-14 (ARB Aug. 31, 2006)
Title:
Final Decision & Order
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DISMISSAL FOR CAUSE; ABANDONMENT; FAILURE TO RESPOND TO ANY OF THE ALJ'S LAWFUL ORDERS
In Rose v. ATC Vancom, Inc. , ARB No. 05-091, 2005-STA-14 (ARB Aug. 31, 2006), the ARB found that the ALJ properly found that the Complainant abandoned his complaint when he did not respond to any to the ALJ's lawful prehearing orders, including an order warning that that the complaint could be dismissed if the ALJ's orders were not complied with.
Palmer v. Triple R Trucking , ARB No. 06-072, ALJ No. 2003-STA-28 (ARB Aug. 30, 2006)
Title:
Final Decision & Order
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REINSTATEMENT; SUBSTITUTION OF FRONT PAY WHERE ANIMOSITY MAKES REINSTATEMENT IMPOSSIBLE; FRONT PAY LIABILITY MAY END UPON COMPLAINANT'S REACHING RETIREMENT AGE
In Palmer v. Triple R Trucking , ARB No. 06-072, ALJ No. 2003-STA-28 (ARB Aug. 30, 2006), the Complainant provided uncontested testimony that animosity between himself and the Respondent would make reinstatement impossible or impracticable. The calculation of back pay and front pay in the matter was complicated by the spare record and the Respondent's failure to participate in the hearing. Although not endorsing the ALJ's methodology for calulating back pay, the ARB ultimately accepted it because it was uncontested and not clearly erroneous. The ARB made several adjustments to the ALJ's front pay award. In regard to the duration of front pay, the ALJ determined that continued payments would be contingent on three events -- the Complainant's repurchase of a truck, the Respondent's payment of the award, or the Complainant's reaching the retirement age of 65. The ARB declined to decide whether the ALJ's three contingencies were a proper basis for determining the duration of the front pay award, but did agree that reaching the age of retirement is an appropriate end point.
Smith v. Jordan Carriers , ARB No. 05-042, ALJ No. 2004-STA-7 (ARB Aug. 25, 2006)
Title:
Final Decision & Order
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ADVERSE EMPLOYMENT ACTION; COMPLAINANT WAS NOT FIRED BUT CHOSE TO LEAVE EMPLOYMENT
In Smith v. Jordan Carriers , ARB No. 05-042, ALJ No. 2004-STA-7 (ARB Aug. 25, 2006), the ARB found that substantial evidence supported the ALJ's finding that the Respondent did not fire the Complainant; rather the Complainant chose to sever his employment for reasons other than his complaint about faulty brakes.
Ferguson v. Schlumberger Technical Corp. , ARB No. 06-093, ALJ No. 2006-STA-11 (ARB Aug. 25, 2006)
Title:
Final Decision & Dismissal Order
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Complainant's withdrawal of objections to OSHA's findings.
Richards v. Lexmark International, Inc. , ARB No. 06-128, ALJ No. 2004-SOX-49 (ARB Aug. 25, 2006)
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Final Order Approving Withdrawal of Respondent's Petition for Review & Dismissing Appeal
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Respondent withdrew its protective appeal; mooted by lack of appeal by the Complainant.
Texas Workforce Commission v. USDOL , ARB No. 06-056, ALJ No. 2004-OAA-1 (ARB Aug. 11, 2006)
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Final Order Dismissing Case With Prejudice
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Approval of Joint Stipulation of Dismissal.