USDOL/OALJ Reporter: ARB Decision Caselist -- December 2005

ARB'S STANDARD OF REVIEW; ALJ'S RECOMMENDED GRANT OF JUDGMENT AS A MATTER OF LAW

The ARB applies a de novo standard of review of an ALJ's recommended grant of judgment as a matter of law. Immanuel v. The Railway Market , ARB No. 04-062. 2002-CAA-20 (ARB Dec. 30, 2005).

EQUITABLE TOLLING; PRECISE CLAIM IN WRONG FORUM; LENGTH OF TIME TO FILE IN CORRECT FORUM AFTER DISMISSAL IN WRONG FORUM

In Immanuel v. The Railway Market , ARB No. 04-062. 2002-CAA-20 (ARB Dec. 30, 2005), it was assumed, for purposes of disposing of the case, that the Complainant's state agency filing raised the precise statutory claim in issue, but was mistakenly filed in the wrong forum � therefore tolling the 30-day limitations period of the environmental whistleblower acts. The issue decided on appeal was how much time a complainant has to file in the correct forum once a complaint that has been filed in the wrong forum is dismissed. Citing Burnett v. New York Cent. R.R. Co. , 380 U.S. 424 (1965) and Crown Cork & Seal Co., Inc. v. Parker , 462 U.S. 345 (1983), the Board held that the Complainant had no more than 30 days within which to file his environmental whistleblower complaint with OSHA after the state agency dismissed his claim. Since the Complainant did not do so for 73 days, the OSHA complaint was untimely.

TIMELINESS OF COMPLAINT; EQUITABLE MODIFICATION OF LIMITATIONS PERIOD; SILENCE OF RESPONDENT FOUND NOT TO HAVE ACTIVELY MISLED COMPLAINANT; IGNORANCE OF ATTORNEY AND COMPLAINANT ABOUT EXISTENCE OF SOX NOT GROUNDS FOR EQUITABLE MODIFICATION

In Moldauer v. Canadaigua Wine Co. , ARB No. 04-022, ALJ No. 2003-SOX-26 (ARB Dec. 30, 2005), the ARB granted summary judgment to the Respondent on the ground that the SOX complaint was not timely filed. The Complainant had been terminated by the Respondent. A severance agreement included the Complainant's release of any discrimination claims he might have against the Respondent under state and federal law. The Complainant's subsequent complaint filed with OSHA was untimely as a SOX complaint. The Complainant asserted that equitable modification of the limitations period should be applied because the Respondent actively misled him when it remained silent about its position that the release excluded SOX claims. The ARB, however, found that the Respondent's mere silence about SOX did not mislead the Complainant, especially since he was represented by counsel when he entered into the severance agreement.

The Complainant next claimed that his counsel's knowledge or lack of knowledge of SOX raised a genuine issue of material fact; the ARB, however, that clients ultimately bear the consequences of the acts or omissions of a freely chosen attorney. Similarly, the ARB was not persuaded that the Complainant's own lack of awareness of SOX presented grounds for equitable modification of the limitations period.

VALID SEVERANCE AGREEMENT AS GROUNDS BARRING SOX COMPLAINT

In Moldauer v. Canadaigua Wine Co. , ARB No. 04-022, ALJ No. 2003-SOX-26 (ARB Dec. 30, 2005), the ARB majority decided the case based on lack of a timely filing of a SOX complaint. One ARB member, although agreeing with the majority decision, wrote a concurring opinion to address his belief that a threshold issue in the matter was whether the Complainant's severance agreement with the Respondent had released the Respondent from liability under a SOX complaint. Reviewing applicable federal and state court decisions, and the facts surrounding the execution of the severance agreement, the concurring member concluded that "in executing a general release of all claims against [the Respondent], [the Complainant] also knowingly and voluntarily released any claim for discrimination he might have had under the SOX." The concurring member found that such a "valid release, knowingly and voluntarily entered into for valuable consideration, and not voidable in part because of concealed facts could end the matter" independent of the timeliness issues.

MOOTNESS; WARNING LETTER THAT NO LONGER HAD ANY DISCIPLINARY EFFECT UNDER THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT

In Agee v. ABF Freight Systems, Inc. , ARB No. 04-182, ALJ No. 2004-STA-40 (ARB Dec. 29, 2005), the Board dismissed the complaint finding that it could not redress the Complainant's alleged injury from a warning notice for excessive absenteeism that no longer had any disciplinary or other effect under the applicable collective bargaining agreement. The Complainant had alleged that the warning notice violated a federal motor carrier safety regulation that prohibits motor carriers from requiring truck drivers to drive while likely to be impaired through fatigue or illness. The Board found that the Complainant had not shown that a § 31105 complaint based on a written notice issued pursuant to the local bargaining agreement in effect in 2003 necessarily evades review or that it is reasonably likely that the Respondent will issue such a notice to him in the future. Moreover, the Board held that neither the Complainant's attorney fees nor his request for injunctive relief preserved the case from mootness.

ADVERSE ACTION; TANGIBLE JOB CONSEQUENCE AS ELEMENT OF PRIMA FACIE CASE

A written warning is not an adverse employment action within the meaning of STAA absent evidence of a tangible job consequence. See West v. Kasbar, Inc., ARB No. 04-155, ALJ No. 2004-STA-34, slip op. at 4 (ARB Nov. 30, 2005) (and cases discussed therein). Thus the ARB in Agee v. ABF Freight Systems, Inc. , ARB No. 04-182, ALJ No. 2004-STA-40 (ARB Dec. 29, 2005), observed that because the Complainant had challenged only the issuance of a warning letter and made no claim that the warning resulted in a tangible job consequence, the complaint did not allege a prima facie case of unlawful retaliation and could have been dismissed without a hearing on that ground alone. In the instant case, however, the issue on appeal was whether the case was moot because the warning letter no longer had any disciplinary or other effect under the applicable collective bargaining agreement.

TIMELINESS OF COMPLAINT; EQUITABLE MODIFICATION - PRECISE CLAIM IN WRONG FORUM; PASSING REFERENCE TO FRAUD, WASTE AND ABUSE REGULATION IN A COMPLAINT FILED WITH THE DEPARTMENT OF DEFENSE FOUND NOT TO BE AN AIR21 COMPLAINT AS A MATTER OF LAW

In Ferguson v. Boeing Co. , ARB No. 04-084, ALJ No. 2004-AIR-5 (ARB Dec. 29, 2005), the issue before the ARB was whether the Complainant had established that there were any material facts relevant to the issue whether he mistakenly filed the precise statutory claim in the wrong forum when he filed a "Fraud, Waste, and Abuse Complaint" with the Department of Defense pursuant to 10 U.S.C.A § 2409 alleging, among other things, that a Boeing manager's fraud could put airmen's lives and others in jeopardy. The Board concluded that the Complainant's passing reference to putting lives in jeopardy is not sufficient, as a matter of law, to establish that the complaint filed with the Department of Defense constituted the precise statutory claim (i.e. an AIR 21 claim) filed in the wrong forum.

CAUSATION; RESPONDENT'S AWARENESS OF PROTECTED COMPLAINT; COMPLAINANT DID NOT RAISE HOURS OF SERVICE ALLEGATION UNTIL AFTER DISCHARGE

ARB SCOPE OF REVIEW; ARGUMENTS NOT RAISED BEFORE THE ALJ

Where the Complainant admitted that he did not provide any reason for declining a dispatch prior to his discharge, he failed to demonstrate that he made the Respondent aware of a protected complaint, and his STAA whistleblower complaint therefore failed as a matter of law. On appeal the Complainant argued that even if he did not make a protected complaint to the Respondent on the day of his termination, he had made hours of service and similar complaints in the past, and the ALJ should not have granted summary decision because that protected activity could have factored into the Respondent's decision to discharge him. The ARB declined to address this argument because it had not been raised below. Harris v. Allstates Freight Systems , ARB No. 05-146, ALJ No. 2004-STA-17 (ARB Dec. 29, 2005)

ARB SCOPE OF REVIEW AUTHORITY; FAILURE OF ADMINISTRATOR TO TIMELY COMPLY WITH 29 C.F.R. § 4.10(b)(2); ARB DOES NOT HAVE THE AUTHORITY TO REVIEW ABSENT FINAL DECISION OF THE ADMINISTRATOR OR THE DECISION OF AN ALJ

In United Government Security Officers of America, Local 50 v. Administrator, Wage & Hour Division , ARB No. 05-157 (ARB Dec. 29, 2005), the Petitioner sought summary judgment in its favor in an appeal involving the substantial variance provisions of the SCA based on a procedural default of the Administrator. The Petitioner had requested a substantial variance hearing. The Administrator failed to respond within 30 days as contemplated by the regulations by denying, granting or advising of a need for additional time to make a determination. See 29 C.F.R. § 4.10(b)(2). The ARB held that, in the absence of a final decision by the Administrator or an ALJ's decision, it did not have the authority to grant summary judgment on the ground requested.

ARB SCOPE OF REVIEW AUTHORITY; FAILURE OF ADMINISTRATOR TO TIMELY COMPLY WITH 29 C.F.R. § 4.10(b)(2); ARB DOES NOT HAVE THE AUTHORITY TO REVIEW ABSENT FINAL DECISION OF THE ADMINISTRATOR OR THE DECISION OF AN ALJ

United Government Security Officers of America, Local 50 v. Administrator, Wage & Hour Division , ARB No. 06-008 (ARB Dec. 29, 2005), was decided on the same ground as United Government Security Officers of America, Local 50 v. Administrator, Wage & Hour Division , ARB No. 05-157 (ARB Dec. 29, 2005), to wit: that the ARB does not have the authority to grant summary judgment to the Petitioner based on failure of Administrator to timely comply with 29 C.F.R. § 4.10(b)(2) because the ARB's review authority is dependent on the existence of a final decision of the Administrator or an ALJ decision following a hearing.

SANCTIONS UNDER RULE 18.6(d)(2); RESPONDENT'S FAILURE TO RESPOND TO ALJ'S ORDERS OR COMPLAINANT'S INTERROGATORIES, REQUESTS FOR ADMISSION OR MOTION FOR SUMMARY JUDGMENT

In Waechter v. J.W. Roach & Sons Logging & Hauling , ARB No. 04-183, ALJ No. 2004-STA-43 (ARB Jan. 9, 2006), the ALJ issued several orders to the parties, none of which the Respondent answered. The Respondent also ignored the Complainant's interrogatories, requests for admissions, and Motion for Partial Summary Judgment. Accordingly, the ALJ ordered the Respondent to show cause why sanctions authorized by 29 C.F.R. § Rule 18.6(d)(2) should not be imposed. When the Respondent again failed to reply, the ALJ ordered that the factual matters addressed by the Complainant's request for admissions be deemed admitted and that the factual matters asserted in the Complainant's affidavit in support of his Motion for Partial Summary Judgment be deemed unopposed. The ALJ also ruled that the Complainant would be afforded an opportunity to present argument and evidence in support of damages and attorney fees and costs and that the Respondent would not be permitted to oppose these submissions. The Respondent made no response to this order either. On review, the ARB held that the record fully supported the ALJ's exercise of discretion in applying sanctions authorized by Rule 18.6(d)(2).

ARB'S STANDARD OF REVIEW; ALJ'S IMPOSITION OF SANCTIONS UNDER RULE 18.6(d)(2)

The ARB applies an abuse discretion standard when reviewing an ALJ's imposition of sanctions under 29 C.F.R. § 18.6(d)(2). Rule 18.6(d)(2) provides that if a party fails to comply with discovery or other orders of the ALJ, the ALJ may impose sanctions such as drawing adverse inferences and deeming factual matters to be admitted. Waechter v. J.W. Roach & Sons Logging & Hauling , ARB No. 04-183, ALJ No. 2004-STA-43 (ARB Jan. 9, 2006).

THE ARB DOES NOT HAVE THE AUTHORITY TO REVIEW WAGE AND HOUR DETERMINATION LETTERS UNDER THE SCA AND CWHSSA THAT ARE MERELY A PRECURSOR TO THE FILING OF AN ADMINISTRATIVE COMPLAINT

In Multiservice Joint Venture, Inc. , ARB No. 06-004 (ARB Dec. 28, 2005), the Petitioner sought ARB review of Determination Letters issued by an investigator in a regional Wage and Hour Division office concerning findings that the Petitioner had violated the Service Contract Act and the CWHSSA, and requests that the contracting agency withhold back wages and unpaid fringe benefits. The ARB held that it did not have the authority to review the letters. The ARB held that "the letters were a precursor to the filing of the administrative complaint in this matter and do not constitute final written decisions of the Administrator that could form the basis for an appeal under the Department's regulations at 29 C.F.R. § 8.7(b)." (footnote omitted).

TIMELINESS OF REQUEST FOR ALJ HEARING; EQUITABLE TOLLING

In Thissen v. Tri-Boro Construction Supplies, Inc. , ARB No. 04-153, ALJ No. 2004-STA-35 (ARB Dec. 16, 2005), the Complainant's request for an ALJ hearing was not received by OALJ within 30 days after the OSHA finding because the mailing envelope had been misaddressed (1800 K St. instead of 800 K St.). The ALJ applied equitable tolling to find that the request for a hearing was timely filed because of proof that the request had been timely mailed but to the wrong address, and because of proof that the Complainant was diligent in following up once he became aware that OALJ had not received his objection. The ARB found that substantial evidence supporting these findings that that, as a matter of law, the appeal was properly before the ALJ.

REQUEST FOR ALJ HEARING; FAILURE TO SERVE OPPOSING PARTY

In Thissen v. Tri-Boro Construction Supplies, Inc. , ARB No. 04-153, ALJ No. 2004-STA-35 (ARB Dec. 16, 2005), the Complainant failed to mail a copy of his objections to the OSHA determination and request for ALJ hearing to the Respondent as required by the STAA regulations. The ARB affirmed the ALJ's ruling that this failure did not defeat the Complainant's right to a hearing because the Respondent had not been unduly prejudiced by the short delay between the filing deadline and when it actually received a copy of the objections/hearing request.

TIMELINESS OF COMPLAINT

In Thissen v. Tri-Boro Construction Supplies, Inc. , ARB No. 04-153, ALJ No. 2004-STA-35 (ARB Dec. 16, 2005), the Complainant filed a STAA complaint alleging that the Respondent violated the STAA because it had failed to comply with the terms of a settlement agreement. The ARB found that the ALJ properly granted the Respondent's motion for summary decision where the Complainant unquestionably filed his complaint more than 180 days after learning that the Respondent was not complying with the settlement agreement and the circumstances did not warrant tolling of the statute of limitations.

TIMELINESS OF COMPLAINT; FILING A COMPLAINT WITH ANOTHER AGENCY IS NOT A CIRCUMSTANCE JUSTIFYING EQUITABLE TOLLING

Although the grounds for equitable tolling found in School Dist. of Allentown v. Marshall , 657 F.2d 16 (3d Cir. 1981), are consistent with the STAA regulation at 29 C.F.R. § 1978.102(d)(3), filing a complaint �with another agency� is not a circumstance justifying equitable tolling. Thissen v. Tri-Boro Construction Supplies, Inc. , ARB No. 04-153, ALJ No. 2004-STA-35, slip op. at n.21 (ARB Dec. 16, 2005),

JURISDICTION; NOT DEPENDENT ON TIMELINESS OF COMPLAINT

In Thissen v. Tri-Boro Construction Supplies, Inc. , ARB No. 04-153, ALJ No. 2004-STA-35, slip op. at n.23 (ARB Dec. 16, 2005), the ALJ properly dismissed the complaint as not timely filed; the ALJ, however, wrongly stated that such a finding meant she had no "jurisdiction" to make a determination on the merits of the complaint. The STAA limitations period is not jurisdictional.

AUTHORITY OF ARB; ALJ DOES NOT NEED ARB'S PERMISSION TO RULE ON A MOTION; NOR DOES THE ARB HAVE THE AUTHORITY TO ORDER THE ALJ TO RULE A CERTAIN WAY PRIOR ISSUANCE OF A DECISION AND ORDER

In Somerson v. Eagle Express Lines, Inc. , ARB No. 06-001, ALJ No. 2004-STA-12 (ARB Dec. 13, 2005), the Complainant filed a document with the ARB requesting that it permit the ALJ to rule on two previous summary judgment motions filed by the Complainant's former attorney and to forbid the ALJ from disposing of the case on the Complainant's alleged inability to participate in the matter. The ARB found that it had no authority to grant the relief requested. The Board indicated that the ALJ did not need its permission to rule on the summary judgment motions and stated that it has no authority to order the ALJ how to rule in a case before the ALJ has issued his decision and order.

[Editor's note: The Complainant's motion was evidently grounded in the fact that his attorney had been disqualified from appearing before OALJ].

RECONSIDERATION BY THE ARB

Where the Complainant's motion for reconsideration presented new evidence that did not alter the record or the ALJ's determination in regard to the Complainant's failure to establish that he had engaged in protected activity, and the motion raised the same arguments that were considered and rejected by the ARB in its original decision affirming the ALJ, the Board declined to reconsider. Cummings v. USA Truck, Inc. , ARB No. 04-043, ALJ No. 2003-STA-47 (ARB Dec. 12, 2005).