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

[STAA Digest IV G]
CAUSATION; CONTRIBUTING FACTOR; 2007 AMENDMENTS APPLIED TO STAA COMPLAINT FILED PRIOR THOSE AMENDMENTS

In Riess v. Nucor Corporation-Vulcraft-Texas, Inc. , ARB No. 08-137, 2008-STA-11 (ARB Nov. 30, 2010), the ARB wrote:

   Nucor argues, on appeal, for the application of the STAA as it read before the amendments in August 2007, when Riess filed his complaint. Specifically, Nucor argues that Riess must show that his protected activity was the sole cause of the adverse action rather than a contributing factor. We disagree, and we direct the ALJ to again apply the STAA currently in effect for several reasons. First, we begin with the presumption that we should apply the law in effect at the time of our decision. Thorpe v. Hous. Auth. of Durham , 393 U.S. 268, 281-82 (1969) (generally, an appellate court should apply the law in effect at the time of the decision unless such application would create a manifest injustice). Second, we note that the ALJ announced at the very beginning of the hearing below that the applicable law was the STAA, as amended in 2007. No one objected to his announcement. Third, the STAA language did not change in 2007; it always prohibited and still prohibits retaliation "because" of protected activity. 49 U.S.C.A. §§ 31105(a)(1). Fourth, the burden of proof remained with the employee to prove that his protected activity was a contributing factor to an adverse action. We do not see that the application of the 2007 STAA amendments in this case results in an impermissible retroactive effect. See, e.g., Combs v. Commissioner of Soc. Sec. , 459 F. 3d 640, 646 (6th Cir. 2006)(application of law existing at the time of a decision does not violate the presumption against retroactivity unless the statute in question has retroactive effects) citing Landgraf v. USI Film Prods. , 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed.2d 229 (1994). We believe these facts distinguish this case from cases in which the burden of proof switched from one party to the other. See Raleigh v. Illinois Dept. of Revenue , 530 U.S. 15 (2000) (Court found that transferring the burden of proof from one party to another is a subsequent change that cannot be applied retroactively). Consequently, we review the ALJ's decision under the STAA as amended in 2007. Specifically, we consider whether Riess failed to prove that his protected activity was a contributing factor in the termination of his employment. See 29 C.F.R. 1979.109(a).

USDOL/OALJ Reporter at 4 (footnote omitted)

[STAA Whistleblower Digest II H 4 a]
ADEQUACY OF ALJ'S ANALYSIS; FAILURE OF ALJ TO RESOLVE APPARENT WEAKNESSES IN TESTIMONY OF SUPERVISOR AND OTHER INCONSISTENCIES IN STATED REASONS FOR ADVERSE ACTION MADE IT IMPOSSIBLE FOR THE ARB TO RULE ON WHETHER THE ALJ'S ULTIMATE CONCLUSIONS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE AND ACCORD WITH APPLICABLE LAW

In Riess v. Nucor Corporation-Vulcraft-Texas, Inc. , ARB No. 08-137, 2008-STA-11 (ARB Nov. 30, 2010), the ARB noted that where there is no direct evidence of illegal motive, a complainant can use indirect, circumstantial evidence, and that one of the common sources of indirect evidence is "temporal proximity" between the protected activity and the adverse action. The ARB found that in the instant case there was ample unresolved evidence in the record pointing to the protected activity as a contributing factor in the Complainant's termination, such as his long tenure with the Respondent, his lack of a history of disciplinary problems, and the suspicious timing of his termination. The ARB also found substantial unresolved evidence that that could potentially prove pretext.

The ARB found that the ALJ had failed to carefully weigh this evidence. The ARB found that although the ALJ had detailed the testimony from various witnesses, the only credibility determination he had made was his finding that the Complainant's supervisor's reasons for discharging the Complainant were not pretextual. Moreover, the ARB found that the ALJ failed to resolve apparent weakness in the testimony of the supervisor and other inconsistencies in the Respondent's stated reasons for the adverse action. The ARB stated: "In the absence of sufficient findings of fact regarding these remaining issues, the Board is unable to render a ruling on whether or not the ultimate conclusions the ALJ reached as to these issues is supported by substantial evidence in the record and otherwise in accord with applicable law." USDOL/OALJ Reporter at 8. Accordingly, the ARB remanded for additional fact finding by the ALJ on the issues of causation and pretext.

[Nuclear and Environmental Digest VIII B 1 b]
TIMELINESS OF PETITION FOR ARB REVIEW; UNTIMELY SERVICE ON COMPLAINANT IS NOT GROUNDS FOR EQUITABLE RELIEF WHERE COMPLAINANT'S FORMER ATTORNEY HAD BEEN TIMELY SERVED AND HAD AGREED TO REPRESENT THE COMPLAINANT ON APPEAL

[Nuclear and Environmental Digest VIII B 1 b]
TIMELINESS OF PETITION FOR ARB REVIEW; SECTION 18.3(c)(3) OF THE OALJ RULES OF PRACTICE AND PROCEDURE DOES NOT OPERATE TO ADD FIVE DAYS TO THE FILING PERIOD FOR A PETITION FOR ARB REVIEW

In Prince v. Westinghouse Savannah River Co. , ARB No. 10-079, ALJ No. 2006-ERA-1 (ARB Nov. 17, 2010), the ARB received the Complainant's petition for review on the eleventh business day after the ALJ issued his recommended decision. The 29 C.F.R. Part 24 regulations establish a ten business day limitation period for filing such a petition for review. The Complainant presented several grounds for equitable tolling. First, he argued that the ALJ had sent the recommended decision to his old address. The ARB rejected this ground because the Complainant had been in communication with his former attorney (who had received the ALJ's decision promptly) about the ALJ's decision, and the former attorney had agreed to represent the Complainant again. Adequate time had been available to file the petition timely. Second, the Complainant argued that the Notice of Appeal Rights appended to the ALJ's decision misled him to believe that his petition for review needed to be exhaustive in scope. Again, the ARB rejected this ground because the Complainant's former attorney had agreed to represent the Complainant for the appeal. Third, the Complainant argued that he could not file the petition timely due to the deleterious health effects of dealing with his complaint, effects only worsened by the belief that his petition needed to be exhaustive. Again, the ARB rejected the argument because there was no evidence establishing how his condition would have prevented his attorney from timely filing the petition or a motion to request an enlargement of time to do so. The ARB rejected the Complainant's fourth contention that he had acted with diligence and that lack of prejudice to the Respondent mandated equitable relief.

Finally, the Complainant argued that he had a reasonable belief that 29 C.F.R. § 18.4(c)(3) added five days to the limitations period. The ARB found that this belief was a misreading of the regulations � Part 18 applies to proceedings before OALJ, and those rules do not suggest that they apply to proceedings before the ARB. Morever, 29 C.F.R. § 18.1 states that to the extent that Part 18 rules are inconsistent with a rule of special application, the latter controls, and therefore the Part 24 rule at § 24.110 controls. The ARB also found that, in any case, by its terms § 18.4(c)(3) is inapplicable because it governs time calculations dependent on the date of service of a document, whereas § 24.110's time calculation is dependent on the date of the ALJ's decision rather than the date of service of the ALJ's decision. The Complainant also attacked the constitutionality of § 24.110, arguing that due process could be violated because the regulation does not require that the adversely affected party be given notice of the ALJ's decision before the limitations period for filing a petition for review with the ARB begins to run. The ARB found that it did not have the authority to pass on the constitutionality of the regulation, and moreover, the regulation was reasonably calculated to provide notice to the parties. The ARB additionally stated that the Complainant's argument was based on dramatic hypotheticals which, if present, would have been grounds for equitable tolling.

REFILING OF SOX COMPLAINT IN FEDERAL COURT; BAD FAITH NOT SHOWN BY LITIGATION TACTICS, INADVERTENT FAILURE TO SERVE ONE RESPONDENT WITH NOTICE OF INTENT TO FILE IN FEDERAL COURT, OR FACT THAT ALJ HAD FOUND THAT THE COMPLAINT WAS SUBJECT TO ARBITRATION

In Vroom v. General Electric Co. , ARB No. 10-121, ALJ No. 2010-SOX-19 (ARB Nov. 8, 2010), the Complainant filed a petition for review of the ALJ's decision with the ARB, and later filed a Notice of Intent to File in Federal Court requesting that the ARB dismiss the administrative complaint. The SOX Act and regulations, 18 U.S.C.A. §§ 1514A(b)(1)(B); 29 C.F.R. §§ 1980.114, provide that if the Board has not issued a final decision within 180 days of the date on which the complainant filed the complaint, and there is no showing that the complainant has acted in bad faith to delay the proceedings, the complainant may bring an action at law or equity for de novo review in the appropriate United States district court.

The Respondents argued that the ARB should deny the motion to dismiss because when he amended his complaints, changed respondents, and took procedural steps to extend the life of his case, the Complainant acted in bad faith to delay the proceedings. The ARB found, however, that such actions did not appear to be so outside the realm of good practice that the Complainant obviously took them in bad faith in an intentional attempt to run out the clock. The ARB also observed that the Complainant had waited an additional six months after the 180-day period expired to indicate his intention to file in district court.

One Respondent argued that the ARB should deny the Complainant's motion because he failed to serve his original notice of intent to file on that Respondent as the SOX regulations require, and that if he had done so it would have urged the Board to decide the case before the 15-day-notice period expired. The ARB found the failure to serve that Respondent was inadvertent -- the result of an incorrectly addressed e-mail � and that the Respondent had not been harmed by this omission "because even if it had filed a motion urging the Board to decide the case during the notification period, the Board would have denied the motion given the press of work before it and the cases it was already in the process of deciding."

Both Respondents argued that the Complainant' complaint was not properly before the ARB because the ALJ found the complaint to be subject to arbitration, and the Complainant did not timely appeal this finding. The ARB found, however, that the only grounds the regulations permit the ARB to consider when disposing of a motion to dismiss to file anew in district court is whether the complainant has acted in bad faith.

Accordingly, the ARB granted the Complainant's motion to withdraw his complainant so that he may proceed in district court.