USDOL/OALJ Reporter: ARB Decision Caselist - November 2012

[STAA Digest IX B 2 a]
BACK PAY CALCULATION; ALJ MUST ONLY REACH A REASONABLE APPROXIMATION OF BACK PAY OWED; ARB AFFIRMS CALCULATION THAT WAS BASED ON CONTENTION THAT COMPLAINANT'S DRIVING WOULD HAVE EVENTUALLY BECOME PROFITABLE, BUT ALSO TAKING INTO ACCOUNT THAT SHE HAD NEVER DRIVEN THE AVERAGE NUMBER OF MILES DURING HER TENURE; DEDUCTION FOR ARREARS FROM TRUCK LEASE

In Ferguson v. New Prime, Inc. , ARB No. 12-053, ALJ No. 2009-STA-47 (ARB Nov. 30, 2012), the Complainant had only worked for 16 weeks when she was terminated in violation of the STAA whistleblower provision, and owed the Employer $5,000 due to truck lease obligations.

In determining the back pay award, the ALJ accepted the Complainant's contention that over the long term, she might have become profitable if she had not been improperly terminated. The ALJ also adopted the Respondent's contention that it would be unfair to base the Complainant's wages on the average number of miles the company drivers drove as they average more than she ever drove. The ALJ therefore used the company drivers' wage per mile multiplied by the Complainant's average miles to calcuate the back pay award. The ALJ deducted from the award the $5,000 the Complainant owed the Employer n arrears.

On appeal, the ARB noted that it has held that "the ALJ must only reach a reasonable approximation of what a complainant would have earned but for the discrimination." USDOL/OALJ Reporter at 4 (citation omitted). The ARB affirmed the ALJ's back pay determination, finding that the ALJ correctly considered the contentions of the parties and used a formula to compute back pay that was supported by the evidence of record.

[STAA Digest IV G]
CONTRIBUTING FACTOR; QUALCOMM MESSAGE THAT INCLUDED BOTH PROTECTED AND NON-PROTECTED COMMUNICATIONS IS PRESUMED TO HAVE CONTRIBUTED TO ADVERSE ACTION � HOWEVER � THAT PRESUMPTION WAS OVERCOME BY SUBSTANTIAL EVIDENCE SHOWING THAT COMPLAINANT WAS TERMINATED BASED ON RESPONDENT�S CONCLUSION THAT COMPLAINANT HAD BECOME A RISK TO THE PUBLIC AND HIMSELF, THE COMPLAINANT�S ADMISSION THAT HE HAD BEEN VIOLATING THE HOURS OF SERVICE POLICY, AND THE DISREPECTFUL LANGUAGE OF THE MESSAGE

In

[STAA Digest II Q]
TIMELINESS OF PETITION FOR REVIEW; DELAY IN RECEIPT OF ALJ DECISION FOUND INSUFFICIENT TO WARRANT EQUITABLE RELIEF WHERE COMPLAINANT WAITED THREE WEEKS BEYOND LIMITATIONS PERIOD TO FILE PETITION

In O'Barr v. Builders Transportation Co. , LLC, ARB No. 13-012, ALJ No. 2012-STA-27 (ARB Nov. 29, 2012), the Complainant's explanation for not filing a timely petition for review with the ARB was that by the time he received the ALJ's decision, he purportedly only had three days to file the petition, an impossible burden for a pro se complainant. The ARB found that this explanation was inadequate to show due diligence by the Complainant where he had not requested an enlargement of time, and waited three weeks beyond the limitations period to file his petition.

[STAA Digest II Q]
TIMELINESS OF PETITION FOR REVIEW; ARB USES POSTMARK RATHER THAN DATE OF SIGNATURE BY THE ALJ TO DETERMINE START OF LIMITATIONS PERIOD FOR FILING PETITON FOR REVIEW

In O'Barr v. Builders Transportation Co. , LLC, ARB No. 13-012, ALJ No. 2012-STA-27 (ARB Nov. 29, 2012), the Complainant argued that the ALJ had signed his decision on Friday, September 14, 2012, but that the postmark by a Pitney-Bowes office machine was September 17, 2012, and that he did not receive the ALJ's decision until September 25, 2012, eleven days after the signing of the order, and thus giving him only three days to file the petition. The ARB observed that "[g]enerally the date on which the judge signs the decision and the date on which it is issued are the same. In this case however, the ALJ signed the decision on September 14, 2012, and it was issued on September 17, 2012. The Board uses the date that the decision was issued to commence the 14-day period [for filing a petition for review by the ARB under the STAA regulations]. Therefore, while the Board understands O�Barr's confusion as to the date his petition for review was due, it was, in fact, due on October 1, not September 28, 2012." USDOL/OALJ Reporter at 3-4.

[STAA Digest X B]
PRE-FILING SEVERANCE AGREEMENT; AUTHORITY OF ADJUDICATORY BODY TO ADJUDICATE DISPUTE WHETHER IT WAS SIGNED UNDER DURESS AND AUTHORITY TO DISMISS STAA COMPLAINT ON BASIS OF A PRE-FILING SEVERANCE AGREEMENT

In Gilbert v. Bauer's Worldwide Transportation , ARB No. 11-019, ALJ No. 2010-STA-22 (ARB Nov. 28, 2012), the Complainant was a shuttle bus driver whose driving assignment required a spilt shift. The Complainant refused to drive because he believed that every minute of the spilt shift was �on-duty� and therefore 15 minutes of each day exceeded the hours-of-service regulation.

The DOT regulation at 49 C.F.R. § 395.5(a)(2) prohibits a covered driver from driving �after having been on duty 15 hours following 8 consecutive hours off duty.� The DOT regulation at 49 C.F.R. § 395.1, generally defines �on duty time� as the time that the driver begins to work or �required to be in readiness,� �waiting to be dispatched,� �inspecting, servicing, or conditioning� a commercial motor vehicle, driving, loading/unloading, and �repairing a disabled commercial vehicle,� among other things. The ARB noted that �While the regulatory definition certainly has some gray areas, it makes clear that certain activity is considered �off duty,� such as sleeping and resting. Moreover, taking a meal break would not fit in the definitions of �on duty� unless [the complainant] convinced the ALJ that he was a in a state of �readiness to work. USDOL/OALJ Reporter at 8.

In the instant case, the ARB affirmed the ALJ's finding that the Complainant had not established protected activity under the STAA because, although the Complainant's established that he subjectively believed that there was a violation, he failed to establish that his belief was objectively reasonable where the only evidence the Complainant presented on the issue was his personal opinion. The ARB found that the Complainant failed to prove to the ALJ that it was reasonable to believe that sleeping, eating, and resting at home was �on duty� for purposes of the 15 hour on duty limit.

STAA complaint dismissed as untimely where Complainant failed to establish equitable grounds for failing to file a timely hearing request

[STAA Digest IX B 2 b iv]
BACK PAY; ALJ ERRED IN DEDUCTING FROM BACK PAY AWARD COMPLAINANT�S INTERIM EARNINGS AS OWNER OPERATOR WHERE COMPLAINANT HAD NO TAXABLE INCOME FROM THOSE EARNINGS AND IN FACT REPORTED A LOSS DURING THE RELEVANT PERIOD

In Smith v. Lake City Enterprises, Inc. , ARB No. 11-087, ALJ No. 2006-STA-32 (ARB Nov. 20, 2012), the ALJ awarded the Complainant back pay up to the date of the Respondent's dissolution, but deducted the amount the Complainant had earned during that period while driving as an owner-operator. On appeal, the Complainant argued that that the ALJ erred in deducting $46,000.00 from his back pay award because the record shows that he suffered a net loss of income while working as an owner-operator before selling his truck in April 2008. The ARB observed that back-pay awards are ordinarily reduced by the amount of an employee's interim earnings prior to reinstatement, but found that in the instant case where the Complainant proffered evidence that he had no taxable income from his earnings as an owner-operator during the relevant period (but in fact reported a loss of $21,400 on his income taxes), the ALJ erred in deducting the Complainant's earnings as an owner-operator.

[STAA Digest IX B 2 b xv]
FRONT PAY; ALJ CORRECTLY DENIED REINSTATEMENT AND FRONT PAY WHERE THE RESPONDENT HAD GONE OUT OF BUSINESS

In Smith v. Lake City Enterprises, Inc. , ARB No. 11-087, ALJ No. 2006-STA-32 (ARB Nov. 20, 2012), the ARB affirmed the ALJ's denial of reinstatement and a front pay award to the Complainant where the Respondent's dissolution was a 'superseding intervening event that has foreclosed any possibility of [the Respondent] reinstating [the Complainant] and blocked any enforcement of a front-pay award.� USDOL/OALJ Reporter at 5 (footnoted omitted). The ARB observed that once the Respondent went out of business, the Complainant would not have been employed beyond that date.

FILING OF COMPLAINT IN DISTRICT COURT; NO SANCTION FOR FAILURE TO COMPLY WITH ADVANCE NOTICE AND SERVICE REQUIREMENTS OF 29 C.F.R. § 1982.114(b)

In Pfeifer v. Union Pacific Railroad Co. , ARB No. 12-087, ALJ No. 2011-FRS-38 (ARB Nov. 19, 2012), the ARB dismissed the Complainant's FRSA administrative complaint based on the Complainant's filing of an action in U.S. District Court for the District of Kansas. Although the Complainant failed to give 15 days advance notice of the district court filing, and failed to file with the ARB a copy of the district court complaint, as required by the regulation at 29 C.F.R. § 1982.114(b), the ARB observed that the regulations provide no sanction for failure to comply with the advance notice and service requirements.

The ARB summarily denied the Prosecuting Party's third motion for reconsideration and notified the Complainant that no further motions would be accepted for filing.

Summary denial of Complainant's motion for reconsideration.

ARB NOTIFIES COMPLAINANT/PROSECUTING PARTY, WHO HAD FILED A NUMBER OF POST-DECISION MOTIONS RELATING TO HIS H1B ACTION, THAT IT WOULD NOT ENTERTAIN ANY FURTHER MOTIONS WITHOUT FIRST OBTAINING ADVANCE PERMISSION FROM THE ARB

In Bidwai v. Board of Education of Prince George's County , ARB No. 12-072, ALJ No. 2011-LCA-29 (ARB Nov. 5, 2012), the ARB had earlier dismissed the Complainant's motion for reconsideration of the ARB's dismissal of his appeal, and for recusal of the ARB and its general counsel. In that order, the ARB had notified the Complainant that if he remained dissatisfied with the Board's Final Order, he should address any further arguments on appeal to the appropriate U.S. district court. Ignoring the ARB's notification that he should address any further arguments to a U.S. district court, the Complainant filed a second motion for reconsideration and other requests. The ARB denied the motion and wrote: "The Board will not entertain any further motions for reconsideration from the Complainant. Furthermore, we will not permit the Complainant to file any additional motions of any kind unless the Complainant requests, in writing, and receives permission in advance of filing, from the Board to file such motions." USDOL/OALJ Reporter at 3.

Summary denial of Respondent's motion for reconsideration.