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

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Summary :

Order dismissing appeal because the Complainant filed a de novo action in federal district court.

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Summary :

[Nuclear and Environmental Digest XI C 1]
PRETEXT; TEMPORAL PROXIMITY MAY RAISE INFERENCE OF CAUSATION, BUT ONCE RESPONDENT ARTICULATES LEGITIMATE, NONDISCRIMINATORY REASON FOR ITS ACTIONS, COMPLAINANT HAS BURDEN OF SHOWING PRETEXT BY PREPONDERENCE OF THE EVIDENCE

In Barry v. Specialty Materials, Inc. , ARB No. 06-005, ALJ No. 2005-WPC-3 (ARB Nov. 30, 2007), the ARB stated:

Temporal proximity is sufficient to raise an inference of causation. But once an employer articulates a legitimate, nondiscriminatory reason for its actions, the employee then must prove by a preponderance of the evidence that the employer intentionally discriminated against him because of his protected activity, and that the employer's articulated reason was pretext.

USDOL/OALJ Reporter at 7 (footnotes omitted). In Barry , the Complainant had been fired only one month after engaging in protected activity, but failed to prove that the Respondent's decision to eliminate his position for financial reasons was pretext.

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Summary :

[Sarbanes-Oxley Digest X]
NON-PROFIT, NON-PUBLICLY TRADED COMPANY IS NOT COVERED BY THE SOX WHISTLEBLOWER PROVISION

In Paz v. Mary's Center for Maternal & Child Care , ARB No. 06-031, ALJ No. 2006-SOX-7 (ARB Nov. 30, 2007), the ARB affirmed the ALJ's finding that the SOX whistleblower provision did not cover the Respondent because it was a non-profit, non-publicly traded company.

[Sarbanes-Oxley Digest I]
JURISDICTION; AUTHORITY TO HEAR FALSE CLAIMS ACT ASPECT OF RETALIATION CLAIM

In Paz v. Mary's Center for Maternal & Child Care , ARB No. 06-031, ALJ No. 2006-SOX-7 (ARB Nov. 30, 2007), the Complainant filed a complaint with DOL alleging retaliation under SOX and the False Claims Act, 31 U.S.C.A. § 3730(h). The ARB affirmed the ALJ's finding that DOL does not have jurisdiction to hear the False Claims Act aspect of the retaliation claim.

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Summary :

MATERIALS SUPPLIER MAY BE ENGAGED IN CONSTRUCTION WORK COVERED BY DBA WAGE RATES; WAGE AND HOUR ADMINISTRATOR MUST MAKE SPECIFIC FINDING UNDER APPLICABLE REGULATORY DEFINITION

In Sanders v. Administrator, Wage and Hour Div., USDOL , ARB No. 05-107 (ARB Nov. 30, 2007), the ARB remanded the matter to the Wage and Hour Administrator for further proceedings where it found that the Administrator's final determination that the work performed by a front end loader operator for a contractor at a pit used for a Federal highway construction project being built by the Bureau of Indian Affairs on the Crow Indian Reservation was not subject to the prevailing wage provisions of the DBA was unreasonable because she did not discuss or apply the definition for "site of the work" at 29 C.F.R. § 5.2(l). The Administrator had found that the contractor's workers were not engaged in construction but were only preparing and supplying the mineral aggregate. The ARB found that materials suppliers engage in construction and must pay DBA wages when their activities occur on the site of the building or work, and that section 5.2(l), which defines the "site of work" was relevant. The ARB directed the Administrator to find whether the road project was adjacent or virtually adjacent to the project under the definition at section 5.2(l).

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Summary :

[STAA Digest IV A 2 b ii]
TEMPORAL PROXIMITY; WHILE NOT INELUCTABLE, CIRCUMSTANCES MAY SUPPORT FINDING OF MOTIVE

In Simon v. Sancken Trucking Co. , ARB No. 06-039, -088, ALJ No. 2005-STA-40 (ARB Nov. 30, 2007), it was undisputed on appeal that the Complainant engaged in protected activity when he complained to the Employer and the FMSCA about drivers' failure to complete time-on-duty logs where deliveries were being made more than 100 miles from the depot, and that the Employer was aware of such activity. The Employer, however, contested the ALJ's finding that the Complainant was reassigned and then fired because of such activity. The ARB affirmed the ALJ's finding given the close temporal proximity between the negative results of a FMSCA audit precipitated by the protected activity and the adverse action, coupled with the ALJ's findings of pretext, which were supported by substantial evidence. The reassignment had been made on a "take it or leave it" basis on the same day of receipt of the adverse report (and knowing that this would cause child care problems for the Complainant), and there were contradictions in the reasons the Employer gave for its actions relative to the subsequent firing. In regard to value of proximity in supporting the Complainant's case, the ARB wrote:

   While not ineluctable, the circumstances of a given case may support a fact-finder's conclusion that the temporal proximity between protected activity and adverse action establishes that the adverse action was motivated by the protected activity. Thompson v. Houston Lighting & Power Co. , ARB No. 98-101, ALJ Nos. 1996-ERA-034, 036, slip op. at 6 (ARB Mar. 30, 2001). As the United States Supreme Court stated in Reeves v. Sanderson Plumbing Prods., Inc ., 530 U.S. 133, 147-48 (2000), "once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation" for an adverse action. The ultimate burden of persuasion that an employer intentionally discriminated because of a complainant's protected activity remains at all times with the complainant, Martin v. United Parcel Ser ., ARB No. 05-040, ALJ No. 2003-STA-009, slip op. at 9 (ARB May 31, 2007), but proof that an employer's "explanation is unworthy of credence" . . . "can be quite persuasive." Reeves , slip op. at 147.

USDOL/OALJ Reporter at 6-7.

[STAA Digest IX B 2 a iii]
BACK PAY; SPECULATION ABOUT POSSIBLE EARNINGS IF COMPLAINANT HAD STAYED WITH THE RESPONDENT

In Simon v. Sancken Trucking Co. , ARB No. 06-039, -088, ALJ No. 2005-STA-40 (ARB Nov. 30, 2007), the Complainant asserted that the ALJ erred in calculating the amount of back pay because he failed to "resolve the uncertainties" in the Complainant's favor if he had stayed with the Respondent. The ARB rejected this contention, stating that it "does not indulge in speculation about what a complainant would have earned in his position if he had not been discharged by the employer. Oliver v. Hydro-Vac Servs., Inc. , ARB No. 97-063, ALJ No. 1991-SWD-001, slip op. at 3 (ARB Jan. 6, 1998), citing Welch v. Univ. of Tex. & Its Marine Sci. Inst. , 659 F.2d 532, 535 (5th Cir. 1981) (back pay awarded from date of constructive discharge to date grant expired because �it is simply a matter of speculation� whether grantee would have received another grant)."

[STAA Digest IX B 1]
COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS; COMPLAINANT�S BURDEN TO PROVE

In Simon v. Sancken Trucking Co. , ARB No. 06-039, -088, ALJ No. 2005-STA-40 (ARB Nov. 30, 2007), the ALJ found that the Complainant suffered emotional distress as a result of his termination and inability to find permanent employment, and awarded $5,000.00 in compensatory damages. The ARB found no documentary evidence in the record supporting any loss of reputation or mental anguish, and therefore reversed the compensatory damages award, holding that emotional distress may not be presumed but must be proven.

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Summary :

TIMELINESS OF REQUEST FOR SUBSTANTIAL VARIANCE AND ARMS-LENGTH HEARINGS; GENERAL ALLEGATION THAT SCA HAD NOT BEEN FOLLOWED INSUFFICIENT TO ESTABLISH EXTRAORDINARY CIRCUMSTANCES TO SUPPORT AN EXCEPTION FROM THE REGULATORY TIME LIMITS

In Talon Manufacturing Co., Inc. , ARB No. 05-116 (ARB Nov. 30, 2007), several employees of an Army contractor requested that the Wage and Hour Division convene a hearing to determine whether a CBA (1) contained negotiated wage rates "substantially at variance with those which prevail for services of a character similar in the locality," and (2) provided for wages and fringe benefits "as a result of arm's-length negotiations," within the meaning of the SCA. The Administrator denied the hearing requests because they had not been timely filed under the regulations implementing the SCA at 29 C.F.R. §§ 4.10(b)(3)(ii), 4.11(b)(2)(ii) (2005). The ARB affirmed, holding that the Petitioners had not established that "extraordinary circumstances" existed to justify an exception from the timeliness requirement. The Petitioners argued that the SCA had not been followed procedurally or substantively during the contracting process, but failed to allege any factual circumstance

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Summary :

Order granting the Complainant's request to withdraw objections to the Secretary's preliminary findings.

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Summary :

[STAA Digest XI B 1]
DISMISSAL FOR CAUSE; COMPLAINANT�S FAILURE TO COMPLY WITH ALJ�S PROCEDURAL ORDERS, ATTEND HEARING, OR EXPLAIN ACTIONS

In Tevepaugh v. J & B Express Trucking , ARB No. 07-099, ALJ No. 2006-STA-50 (ARB Nov. 29, 2007), the ARB accepted the ALJ's recommendation of dismissal of the complaint where the Complainant repeatedly failed to comply with procedural orders, neither appeared nor explained his absence from the hearing, did not respond to an order to show cause issued by the ALJ, and did not take the opportunity to explain his actions to the Board. The ARB concluded that the Complainant had abandoned his claim, and therefore dismissed the complaint.

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