USDOL/OALJ Reporter: ARB Decision Caselist -- August 2010

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Summary :

Approval of settlement agreement.

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Summary :

[STAA Digest IV A 2 a]
CAUSATION; STAA DOES NOT PROVIDE AN EVIDENTIARY PRESUMPTION OF RESPONDENT'S AWARENESS OF PROTECTED ACTIVITY

In Litt v. Republic Services of Southern Nevada , ARB No. 08-130, ALJ No. 2007-STA-14 (ARB Aug. 31, 2010), the ARB found that substantial evidence supported the ALJ's finding that the officials who decided to terminate the Complainant's employment were not aware of reports made by the Complainant about exposure to exhaust fumes. On appeal, the Complainant argued that because some of the decision makers were aware of an anonymous OSHA complaint, and because the Complainant had told other employees of the Respondent that he had filed the complaint, it was reasonable to infer that the officials knew that he had filed the complaint. The ARB, however, agreed with the ALJ's finding that the Complainant offered no evidence that any of the decision makers involved in the termination knew of or were informed of the complaint. The ARB held that the Complainant's "mere assertions that it can be inferred that they did know he filed the complaint are not sufficient to constitute circumstantial evidence to establish that Republic was aware of Litt's OSHA complaint or alleged protected activity by a preponderance of the evidence, and we note that there is no presumption available under the STAA or its implementing regulations to establish this necessary element of his claim."

[STAA Digest III J]
HEARSAY; ADMISSION FOUND TO BE HARMLESS ERROR WHERE CASE DID NOT TURN ON THE HEARSAY TESTIMONY

In Litt v. Republic Services of Southern Nevada , ARB No. 08-130, ALJ No. 2007-STA-14 (ARB Aug. 31, 2010), although the ALJ erred in allowing hearsay testimony on the mistaken belief that formal rules of evidence did not apply to STAA whistleblower proceedings, the ARB rejected the Complainant's contention on appeal that the admission of hearsay denied him due process because none of the alleged hearsay was relevant to the elements of the STAA claim on which the case turned, and the complainant did not point to any other relevant evidence that the ALJ may have failed to consider. The ARB noted, moreover, that the ALJ acknowledged the error in the recommended decision and order, and that his decision was supported by substantial evidence. The ARB thus found that the error was harmless.

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Summary :

TIMELINESS; RESPONDENT DOES NOT HAVE THE RESPONSIBILITY TO INFORM THE COMPLAINANT OF THE SOX WHISTLEBLOWER PROVISIONS' FILING DEADLINES

In McCloskey v. Ameriquest Mortgage Co. , ARB No. 08-123, ALJ No. 2005-SOX-93 (ARB Aug. 31, 2010), the Complainant argued that his SOX whistleblower complaint should be equitably construed as timely because the Respondent had a burden to inform him of the existence of the SOX, and failed to do so. The Complainant contended that the Respondent bore this burden based on the requirement to certify financial reports under Section 302 of the SOX. The ARB found that the Respondent did not have a burden to inform the Complainant of the whistleblower provision of the SOX and its filing deadlines, and that Section 302 was inapposite to the Complainant's case.

TIMELINESS; EQUITABLE TOLLING UNDER WRONG FORUM FILING; TOLLING ONLY FOR THE PERIOD THE COMPLAINANT WAS UNAWARE THAT THE FILING WAS IN THE WRONG FORUM

In McCloskey v. Ameriquest Mortgage Co. , ARB No. 08-123, ALJ No. 2005-SOX-93 (ARB Aug. 31, 2010), the Complainant argued that his SOX whistleblower complaint should be equitably found timely on the ground that he timely filed a precise statutory claim in the wrong forum when he sent an e-mail to the SEC and a letter to a state banking authority. The ARB agreed with the ALJ, however, that these communications were not the precise statutory claim in issue filed in the wrong forum and thus do not justify equitable tolling of the SOX 90-day filing deadline. Moreover, the ARB held that even if equitable tolling applied, the SEC's reply had informed the Complainant of the short filing deadlines for SOX whistleblower complaints, but the Complainant had still not acted promptly to file with OSHA. The ARB cited Hillis v. Knochel Bros. Inc. , ARB Nos. 03-136, 04-081, -148, ALJ No. 2002-STA-50, slip op. at 8-9 (ARB Mar. 31, 2006) (noting that the tolling of the statute's deadline was only tolled while the complainants were unaware that they had filed in the wrong forum).

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Summary :

[STAA Digest IV G]
CONTRIBUTING FACTOR; COMPLAINANT'S BURDEN

In Villa v. D.M. Bowman, Inc. , ARB No. 08-128, ALJ No. 2008-STA-46 (ARB Aug. 31, 2010), a STAA case arising under the STAA as amended by the Implementing Recommendations of the 9/11 Commission Act of 2007, the ARB affirmed the ALJ's finding that the Complainant did not prove a causal connection between his alleged protected activity and his discharge, but stated the legal conclusion more precisely as a failure by the Complainant to prove that his alleged protected activity was a "contributing factor" in his discharge. The ARB found the dispositive evidence undisputed that the Complainant had not communicated with the Respondent to inform it that he was not delivering the load, and had returned the truck to the terminal without telling anyone (even though the terminal was always staffed). Moreover, although the Complainant testified that the truck was malfunctioning, continuing to drive it without contacting the shop risked permanent damage to the engine. The ARB thus found that the Complainant's claim that he would have violated the hours of service regulation was not a contributing factor in his termination.

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Summary :

Order granting unopposed motion for award of attorney's fees for work performed in opposing the Respondent's motion to stay the ARB's merits decision, pending the Respondent's appeal to the Sixth Circuit.

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Summary :

Approval of settlement agreement.

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Summary :

otion for reconsideration denied where the Complainant presented no new matters of law or fact, but merely repeated his previous arguments.