USDOL/OALJ Reporter: ARB Decision Caselist -- November 2009

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Summary :

Approval of dismissal based on withdrawal of objections to OSHA findings.

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Summary :

[STAA Digest II I]
MOTION TO REOPEN BASED ON EVIDENCE OF COMPLAINANT'S FELONY CONVICTIONS FOR CONDUCT THAT OCCURRED AFTER THE ALJ HEARING

In Shields v. James E. Owen Trucking, Inc. , ARB No. 08-021, ALJ No. 2007-STA-22 (ARB Nov. 30, 2009), the Respondent requested that the ARB accept evidence that the Complainant had been found guilty of six felony counts based on offenses that occurred after the hearing. The Respondent argued the evidence was material because it went the Complainant's credibility � which the ALJ had relied upon � and that it was admissible because it was not readily available prior to the closing of the record. The ARB treated the Employer's request as a motion to reopen, and ruled that the evidence could not be admitted "because it was not only not readily available at the hearing, it did not even exist. For new evidence to be admitted under 29 C.F.R. § 18.54(c), it is necessary that it was in existence at the time of the hearing. Also 29 C.F.R. § 18.609 requires that the witness �has been convicted of a crime,' but the new evidence shows that Shields was convicted after the hearing." USDOL/OALJ Reporter at 8 (footnote omitted).

[STAA Digest IV C 2 a]
PRETEXT SHOWN; CREDIBILITY; FAILURE TO EXPLAIN WHY COMPLAINANT WAS STILL GIVEN DISPATCHES IF HE WAS SO OFTEN LATE WITH DELIVERIES; LACK OF WRITTEN EVIDENCE OF WARNINGS

In Shields v. James E. Owen Trucking, Inc. , ARB No. 08-021, ALJ No. 2007-STA-22 (ARB Nov. 30, 2009), the ARB found that substantial evidence supported the ALJ's finding that the Complainant engaged in protected activity when he refused a dispatch that would have caused an hours-of-service violation, and that the Complainant's firing had been at least partly based on that refusal. The ARB also found that substantial evidence supported the ALJ's finding that the Respondent's articulated legitimate, non-discriminatory reason for termination of the Complainant (that the Complainant had made 16 or 17 out of 21 late deliveries and left his truck at home on some occasions) was pretext, where the ALJ found that the Respondent's witnesses were not credible, whereas the Complainant had credibly testified about the incident that led to his termination; the Respondent was unable to offer a logical explanation reconciling inherently contradictory motives of striving to satisfy its client base while, at the same time, continuing to assign loads to the Complainant who makes repeated late deliveries that allegedly adversely affect clients; the warnings that the Respondent contended had been made to the Complainant were unsubstantiated; and the Respondent did not provide any evidence that it was dissatisfied with the Complainant's job performance beyond the introduction of computer printouts of scheduled loads, and a letter of dissatisfaction from a client. The ARB also found that substantial evidence supported the ALJ's finding under the dual motive analysis that the Respondent failed to establish that it would have discharged the Complainant even if he had not engaged in the protected activity.

[STAA Digest IX B 2 b ix]
BACK PAY LIABILITY ENDS WHEN A BONA FIDE OFFER TO REINSTATE IS MADE, RATHER THAN ON THE DATE OF THE ALJ'S DECISION

In Shields v. James E. Owen Trucking, Inc. , ARB No. 08-021, ALJ No. 2007-STA-22 (ARB Nov. 30, 2009), the ARB found that the ALJ erred when he awarded back pay for the period from the date of the Complainant's discharge until the date of the ALJ's decision. Rather, "[b]ack pay liability ends when the employer makes a bona fide, unconditional offer of reinstatement or, in very limited circumstances, when the employee rejects a bona fide offer, not when the ALJ decides the case." USDOL/OALJ Reporter at 12 (footnote omitted). Since the record did not evidence whether or when the Respondent made a bona fide offer to reinstate the Complainant, the ARB modified the ALJ's back pay award to require the Respondent to pay back pay until the date the Respondent made, or makes, a bona fide, unconditional offer of reinstatement to the Complainant to his former position with the same pay, terms, and privileges of employment that he had before he was discharged.

[STAA Digest IX D]
ABATEMENT MEASURES; EXPUNGEMENT; CORRECTION OF CREDIT AGENCY REPORTING; POSTING OF DECISION

In Shields v. James E. Owen Trucking, Inc. , ARB No. 08-021, ALJ No. 2007-STA-22 (ARB Nov. 30, 2009), the ARB found that the ALJ did not err when he ordered the Respondent to expunge all negative or derogatory information from the Complainant's personnel records relating to his protected activity or its role in the Complainant's termination; to contact every consumer reporting agency to which it may have furnished a report about the Complainant; to request that the reports be amended; and to conspicuously post copies of the ALJ's recommended decision and of the ARB's final decision and order for 90 days.

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Summary :

[STAA Digest IX C]
ATTORNEY FEE PETITION; BILLING RATE FOR ATTORNEY EXPERIENCED IN DOL WHISTLEBLOWER PROCEEDINGS WITH NATIONAL LAW PRACTICE

In Shields v. James E. Owen Trucking, Inc. , ARB No. 08-072, ALJ No. 2007-STA-22 (ARB Nov. 30, 2009), the Complainant's attorney was from Minnesota. The Respondent argued that the ALJ erred in finding that the Complainant's attorney's billing rate of $325.00 for his work beginning on June 1, 2007, and $275.00 per hour for his work before that time, was reasonable when compared to rates charged by other attorneys in Southwestern Virginia because the relevant community was specifically Roanoke, Virginia, and because the Complainant's attorney did not show that the case was complex or specialized or concerned any politically sensitive issues. The ARB found that ALJ's approval of the hourly rates was reasonable where the Complainant's attorney had practiced law for 23 years and has a nationwide law practice, handling approximately 135 cases arising under the STAA including 51 administrative trials before the OALJ; the attorney had prior work experience in the field of transportation (some of which was at an executive level); the attorney's billing rate was less than many similarly situated lawyers in his region of the country; and the attorney had provided affidavits from experienced attorneys who alleged that his rate was reasonable. In addition, the ARB noted that the ALJ's personal observation from the proceedings before him was that the attorney was highly experienced and was specialized in a narrow area of the law that is arcane to many other lawyers.

[STAA Digest IX C]
ATTORNEY FEE PETITION; REASONABLENESS OF HOURS EXPENDED; RESPONDENT'S PRO SE STATUS AS FACTOR

In Shields v. James E. Owen Trucking, Inc. , ARB No. 08-072, ALJ No. 2007-STA-22 (ARB Nov. 30, 2009), the Respondent argued that the Complainant's attorney spent an excessive amount of time on the case in light of the standards of the private bar, in view of the fact that there was only one issue at the one-day trial, and in view of the absence any legally or factually difficult peculiarities. The Respondent also noted that the requested attorney fee well exceeded the amount awarded to the Complainant. The ARB, however, affirmed the ALJ's finding that the hours had been reasonably expended where the Respondent's pro se status had made discovery difficult, and where the Complainant's brief and stipulations had been very complete and helpful to the ALJ in drafting the decision. The ARB also noted that the ALJ had taken into consideration that the Complainant's attorney had used a tenth of an hour billing method and did not charge for clerical items.

[STAA Digest IX C]
ATTORNEY FEE PETITION; REASONABLENESS OF COMPENSATION FOR TRAVEL TIME OF ATTORNEY AND EXPERT WITNESS

In Shields v. James E. Owen Trucking, Inc. , ARB No. 08-072, ALJ No. 2007-STA-22 (ARB Nov. 30, 2009), the Respondent argued that the ALJ erred in finding that the Complainant's attorney was entitled to reimbursement for his travel expenses because the attorney failed to show that it was necessary for the Complainant to hire counsel outside of the relevant community of Roanoke, Virginia. The ARB, however, agreed with the ALJ's finding that the requested compensation was reasonable. The ALJ noted that the attorney had reduced his travel time by fifty percent even though travel time is generally compensable. The ALJ also found that the Respondent had not directed the ALJ to a prohibition on travel on the basis that local counsel is preferred. The ARB similarly affirmed the ALJ's decision not to reduce the travel expenses for a non-local expert witness.

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Summary :

Approval of settlement agreement.

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Summary :

SCA COVERAGE CANNOT BE AVOIDED BASED ON THE CONTENTION THAT THE WORKERS WERE CONTRACTORS RATHER THAN EMPLOYEES

In Charles Igwe , ARB No. 07-120, ALJ No. 2006-SCA-20 (ARB Nov. 25, 2009), the Respondents contended that the individuals working on its four contracts with the federal government to provide service employees were not entitled to SCA prevailing wages and fringe benefits because they were independent contractors, not employees. The ARB found, however, that the relevant inquiry is whether the persons working on the contract come within the SCA definition of "service employee," which includes "any person engaged in the performance of a contract entered into by the United States [with certain exemptions not relevant here] . . ., the principal purpose of which is to furnish services in the United States; and shall include all such persons regardless of any contractual relationship that may be alleged to exist between a contractor or subcontractor and such persons ." USDOL/OALJ Reporter at 6, citing 41 U.S.C.A. § 357(b) (emphasis added by the ARB). The ARB found that the implementing regulations also explained the definition of "service employee" and the irrelevance of a "contractual relationship" In determining coverage under the SCA.

RECONSTRUCTION OF PAYROLL RECORDS BASED ON TESTIMONY OF REPRESENTATIVE EMPLOYEES

In Charles Igwe , ARB No. 07-120, ALJ No. 2006-SCA-20 (ARB Nov. 25, 2009), the Respondents attacked the Administrator's calculation of back wages based on the contention that it was "fabricated." The ARB found that the investigators' reconstruction of the payroll records - necessitated by the Respondents' failure to keep and maintain payroll records -- was appropriate under the principles of the Supreme Court's decision in Anderson v. Mt. Clemens Pottery Co. , 328 U.S. 680 (1946), which permits the award of back wages to non-testifying employees based on the representative testimony of a small number of employees. In the instant case, the Respondents offered no probative evidence to rebut the reasonableness of the Administrator's findings.

DELAY IN PAYMENTS FROM AGENCY DOES NOT EXCUSE FAILURE TO PAY SERVICE WORKERS IN COMPLIANCE WITH THE SCA

In Charles Igwe , ARB No. 07-120, ALJ No. 2006-SCA-20 (ARB Nov. 25, 2009), the Respondents argued that they should be excused from the failure to pay prevailing wages under the SCA because of the contracting agencies' excessive delays in making contract payments. The ARB held, however, that there is no provision in the statute or the regulations permitting an employer to wait until being reimbursed by another party before fulfilling its obligations to its employees.

FAIRNESS OF ALJ PROCEEDING; PRO SE LITIGANT

In Charles Igwe , ARB No. 07-120, ALJ No. 2006-SCA-20 (ARB Nov. 25, 2009), the pro se Respondents contended that the proceedings before the ALJ were unfair and biased. The ARB found no merit to the argument. The ARB wrote:

After review of both the hearing transcript and the ALJ's decision, we find that the ALJ appropriately assisted this pro se litigant while maintaining his impartiality. A judge must refrain from becoming an advocate for the pro se litigant. While we have acknowledged that adjudicators must accord a party appearing pro se fair and equal treatment, a pro se litigant "cannot generally be permitted to shift the burden of litigating his case to the courts, nor avoid the risks of failure that attend his decision to forego expert assistance." Pro se litigants have the same burdens of proving the necessary elements of their cases as litigants represented by counsel. The ALJ treated both parties with impartiality.

USDOL/OALJ Reporter at 8-9 (footnotes omitted).

RELIEF FROM DEBARMENT; CULPABLE CONDUCT BASED ON DISREGARD OF THE SERVICE CONTRACT ACT'S REQUIREMENTS AND HISTORY OF IGNORING INSTRUCTIONS FROM WAGE AND HOUR

In Charles Igwe , ARB No. 07-120, ALJ No. 2006-SCA-20 (ARB Nov. 25, 2009), the ARB affirmed the ALJ's finding that the Respondents had underpaid their employees SCA wages and fringe benefits due them under their federal contracts, and then turned to the question of debarment, observing that unless the Respondents could meet the first part of the three-part test for relief from the sanction of debarment, they must be debarred. The ARB stated that to meet part 1 of the test, the Respondents must prove that their conduct in causing or permitting SCA violations was not willful, deliberate, of an aggravated nature, or the result of culpable conduct. In the instant case, the ARB agreed with the ALJ's conclusion that the Respondents were guilty of culpable conduct where the record demonstrated that the Respondents willfully and deliberately disregarded whether they were complying with the Act's requirements regarding proper wage payment and recordkeeping, and where the Respondents ignored repeated instructions about compliance requirements from Wage and Hour Division officials during four different investigations. The ARB rejected the Respondents' argument that they were not guilty of culpable neglect, but only ignorance of the SCA and its requirements, agreeing with the ALJ that "ignorance in the face of repeated notifications of the applicability of the SCA and the wage determinations is clearly culpable neglect." USDOL/OALJ Reporter at 11, quoting ALJ's decision.

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Summary :

Approval of settlement agreement.

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Summary :

Approval of dismissal based on withdrawal of objections to OSHA findings.

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Summary :

Appeal mooted because the Administrator raised the pertinent wage rates and fringe benefits at issue above the amounts the Petitioner argued for in its original request for reconsideration to the Administrator and in its Petition for Review before the Board.

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Summary :

UNTIMELY APPEAL; EQUITABLE TOLLING FOUND NOT TO BE WARRANTED BASED ON ATTORNEY ERROR, LACK OF PREJUDICE TO OPPOSING SIDE, OR JUDICIAL ECONOMY AND PUBLIC INTEREST IN AIR SAFETY

In Patino v. Birken Manufacturing Co. , ARB No. 09-054, ALJ No. 2005-AIR-23 (ARB Nov. 24, 2009), the Respondent failed to timely file its petition for ARB review of the ALJ's decision on the merits, and failed to establish grounds for equitable tolling. The ARB thus declined to review the ALJ's decision on remand in favor of the Complainant. The first proffered ground for equitable tolling was that the Respondent misunderstood the notice of appeal rights attached to the ALJ's decision. The ARB, however, found that attorney error does not support equitable tolling. The second ground was that the Complainant waited three months before arguing to the ARB about the untimely appeal, and therefore the Complainant would suffer no prejudice if the ARB reviewed the ALJ decision. The ARB, however, held absence of prejudice is not an independent basis for tolling, and is only a consideration once a party identifies a factor that might justify such tolling. The ARB also rejected arguments based on judicial economy by reviewing both ALJ decisions (the Respondent having timely filed a petition for review of the ALJ's decision on attorney's fees) and public interest in resolving issues concerning air safety, where the Respondent offered no precedent or any other legal rationale to support the arguments.

ATTORNEY FEE PETITION; MERE FACT THAT FEES EXCEEDED DAMAGES AWARD IS NOT A GROUND FOR REDUCING FEE REQUEST

In Patino v. Birken Manufacturing Co. , ARB No. 09-054, ALJ No. 2005-AIR-23 (ARB Nov. 24, 2009), the ARB ruled that although the attorney's fee petition was nearly double the damages award, that fact standing alone was not grounds for reducing a properly supported fee request.

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Summary :

[Nuclear and Environmental Digest IX B 2] APPEAL TO ARB; BRIEFING REQUIREMENTS

In Southerlin v. Nestle Prepared Foods Co. , ARB No. 09-122, ALJ No. 2009-CAA-3 (ARB Nov. 23, 2009), the ARB dismissed the Complainant's appeal because the Complainant had failed to file a brief conforming with the ARB's requirement that briefs be double-spaced, despite being given an second opportunity to file a conforming brief.

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Summary :

Approval of settlement agreement.

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Summary :

Approval of settlement agreement.

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Summary :

Approval of dismissal based on withdrawal of objections to OSHA findings.

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Summary :

TIMELINESS OF COMPLAINT; "ACTIVELY MISLED" GROUND FOR EQUITABLE TOLLING DOES NOT APPLY IF COMPLAINANT KNOWS FACTS CONSTITUTING DISCRIMINATORY TREATMENT BUT LACKS DIRECT KNOWLEDGE OF DISCRIMINATORY PURPOSE; NO TOLLING UNTIL COMPLAINANT OBTAINS EVIDENCE OF PURPOSE

In Smale v. Torchmark Corp. , ARB No. 09-012, ALJ No. 2008-SOX-57 (ARB Nov. 20, 2009), the Complainant, a senior auditor, was discharged after submitting three risk observations to the Respondent. Initially, the Complainant was informed that he was discharged on the basis of only one of the reported risk observations. Later, during arbitration proceedings, the Respondent indicated that the Complainant had been discharged because all three risk observations had been improperly submitted. The Complainant did not file a SOX whistleblower complaint until more than a year after his discharge, and relied on the equitable ground of being actively misled respecting the cause of action in regard to the timeliness of the complaint.

The ARB indicated that a litigant seeking to use the "actively misled" grounds for equitable tolling must show "1) the respondents wrongfully concealed their actions, 2) the complainant failed to discover the operative facts that are the basis of the cause of action within the limitations period; and 3) the complainant acted diligently until discovery of the facts." USDOL/OALJ Reporter at 8 (footnote omitted).

In the instant case, the ARB found that there was no concealment � the Complainant knew that he had been terminated and that he had submitted risk observations on the previous day that concerned the SOX. The ARB wrote:

   As explained by the Fifth Circuit, "a showing of deception as to motive supports equitable estoppel only if it conceals the very fact of discrimination; equitable estoppel is not warranted where an employee is aware of all of the facts constituting discriminatory treatment but lacks direct knowledge of the employer's subjective discriminatory purpose." This precept is applicable here � Smale knew that he had engaged in protected activity with respect to the SOX and that he had been adversely affected in the terms of his employment when he was terminated; the only thing he did not know was whether there was discriminatory purpose. Therefore, application of equitable estoppel is not warranted.

USDOL/OALJ Reporter at 8 (footnote omitted). The Complainant also argued that he would be risking a determination that his suit was frivolous if he brought his claim before he knew that the Respondent terminated his employment in part due to his SOX-related risk observation. The ARB, however, agreed with the ALJ that a complainant's failure to acquire evidence of the motivation for the adverse employment action does not affect the complainant's rights or responsibilities for initiating a SOX whistleblower complaint. The ARB wrote that "[t]o toll a limitations period until a complainant acquired evidence of motive �would abort the policy of the law of repose in statutes of limitations of diligence in the equitable principles permitting suspension of them.'" USDOL/OALJ Reporter at 9 (internal quotation is to two 6th Circuit decisions).

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Summary :

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; WRONG FORUM

In Edmund v. Metropolitan Transit Authority , ARB No. 09-034, ALJ No. 2009-STA-3 (ARB Nov. 19, 2009), the Complainant did not file a timely STAA whistleblower complaint, but asserted that he was entitled to equitable tolling because he had filed a Title VII complaint with the EEOC within the STAA's 180 day limitations period. The ARB, however, agreed with the ALJ that "whatever EEOC charge Edmund may have filed based on his race is unrelated to the STAA." USDOL/OALJ Reporter at 6. Since the record did not suggest that the Complainant filed the precise statutory claim in the wrong forum, equitable tolling did not apply.

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Summary :

Affirming ALJ's recommendation of dismissal based on failure to prosecute.

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Summary :

Petition for interlocutory review dismissed as moot after the ALJ approved a settlement of the complaint.

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