USDOL/OALJ Law Library: STAA Whistleblower Digest, DIVISION II -- PROCEDURE

II.A. Applicability of Part 18

The time frames set out at 29 C.F.R. §§ 18.4 and 18.6 apply under 29 C.F.R. § 1978.106. Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Oct. 27, 1992) (Order Denying Motion to Reconsider), slip op. at n1.

[STAA Digest II A]
REFERENCE TO PART 18 RULES OF PRACTICE IN STAA CASE

In Madonia v. Dominick's Finer Foods, Inc. , 1998-STA-2 (ARB Jan. 29, 1999), the ARB observed that "[i]n STAA cases, the Board often looks to the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges for guidance on procedural matters. 29 C.F.R. §1978.100(b); 29 C.F.R. Part 18."

II.A. 29 C.F.R. Part 18; applicability of

Regulations found in 29 C.F.R. Part 18, and not the Federal Rules of Evidence, are controlling in regard to whether evidence constitutes hearsay or falls within an exception to the hearsay rule. Hadley v. Southeast Coop. Serv. Co., 86-STA -24 (Sec'y June 28, 1991).

[Editor's note: The regulations for STAA cases at 29 C.F.R. Part 1978, specifically adopt the rules found at 29 C.F.R. Part 18, and do not contain the language found in the general whistleblower regulations found at 20 C.F.R. Part 24, which states that "formal rules of evidence shall not apply. See 29 C.F.R. § 24.5(e).]

II B 1 Filing of complaint, generally

[STAA Digest II B 1]
ORAL COMPLAINT - FLSA ANTI-RETALIATION ACTION

In Valerio v. Putnam Associates, Inc. , No. 98-1399 (1st Cir. Apr. 9, 1999), the court considered whether the Fair Labor Standards Act anti-retaliation provision, 29 U.S.C. § 215(a)(3), protects written internal complaints, and found that it does. In footnote 4, the court noted that it was leaving for another day the question whether combined oral and written complaints, or alleged complaints of a wholly oral nature, allow invocation of the protections of § 215(a)(3). In so noting, the court cited by comparison Clean Harbors Environ. Serv., Inc. v. Herman , 146 F.3d 12 (1st Cir. 1998), a STAA anti-retaliation decision in which the panel spoke of a combination oral/written complaint as "filed."

[STAA Whistleblower Digest II B 1] 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.

[STAA Digest II B 2]
MOTION IN LIMINE DENYING RECOVERY FOR ADVERSE ACTIONS THAT TOOK PLACE MORE THAN 180 DAYS PRIOR TO THE FILING OF THE STAA COMPLAINT

In Montgomery v. USDOL , No. 08-60716 (5th Cir. Oct. 2, 2009) (unpublished), the Complainant argued that the ALJ incorrectly granted the Respondent's motion in limine denying recovery for any adverse actions that took place more than 180 days prior to the filing of the STAA complaint. The court found that "Because the STAA requires a complainant to file a whistleblower claim 'not later than 180 days after the alleged violation occurred,' the ALJ did not err when it granted Jack in the Box's motion." Slip op. at 3 (footnote omitted). Because they were not raised as objections at the time of the hearing, the court refused to consider the Complainant's arguments that he did not have fair notice of the motion or that the Respondent waived reliance on the limitations period because it was not raised as an affirmative defense.

II.B.2. Protected activity occurred prior to effective date of STAA

Where Complainant engaged in protected activity prior to the effective date of the STAA, but was fired after the effective date, the Secretary held that the employee protection provision of the STAA protects employees from reprisals taking place after January 6, 1983 (the effective date of the STAA), regardless of when the employee conduct which motivated the employer occurred.

The Secretary concluded that the STAA's employee protection provision parallels the "participation" clause of Title VII's employee protection section, and therefore cited Abramson v. University of Hawaii, 594 F.2d 202 (9th Cir. 1979) (retaliation against employee after the Title VII became applicable for employee's filing a charge with EEOC prior to that date -- the "participation" clause at 42 U.S.C. § 2000e-3(a)) and distinguished Winsey v. Pace College, 394 F. Supp. 1324 (S.D.N.Y. 1975) (no violation of employee protection clause of Title VII when employee expressed opposition to a practice which was not, at the time, a violation of Title VII -- the "opposition" clause at 42 U.S.C. § 2000-3(a)).

Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1 (Sec'y July 13, 1984).

[STAA Whistleblower Digest II B 2]
TIMELINESS OF COMPLAINT; JUDICIAL LATITUDE TOWARDS PRO SE LITIGANTS IN RAISING ARGUMENTS

In Farrar v. Roadway Express , ARB No. 06-003, ALJ No. 2005-STA-46 (ARB Apr. 25, 2007), the ARB affirmed the ALJ's finding that the Complainant had not filed a timely complaint of retaliation under the STAA in regard to his discharge. However, the ALJ erred in failing to address the Complainant's allegation that he had attempted to raise a complaint with OSHA alleging that he was retaliated against during a grievance proceeding because the Respondent had presented false and misleading information. OSHA had dismissed the complaint for lack of timeliness and closed the investigation. When the Complainant subsequently mailed a packet of materials to OSHA, it returned the packet to the Complainant unopened. The Complainant alleged that a letter in that packet clarified that his complaint included the Respondent's actions at the grievance proceedings. Before the ALJ, the Respondent filed a motion to dismiss based on lack of timeliness of the complaint following the discharge. The Complainant's response only addressed timeliness in regard to the discharge and did not address timeliness in regard to the grievance proceeding. Although the ALJ was aware of the allegation concerning the grievance proceeding, he recommended dismissal based on motion to dismiss. On appeal to the ARB, the ARB construed the Complainant's position liberally and with a degree of judicial latitude because of his pro se status, and remanded for the ALJ to make findings regarding the grievance hearing allegations.

[STAA Whistleblower Digest II B 2]
FILING OF COMPLAINT; VISIT TO OSHA OFFICE

Where Complainant had visited an OSHA office and brought up matters potentially cognizable under the STAA whistleblower law, but the OSHA official told him that a complaint would not be taken until the Complainant had exhausted grievance/arbitration rights, and it was only after the arbitration was completed that Complainant filed a written complaint, Respondent argued that the complaint was not timely because 180 days had already passed. The ARB adopted the ALJ's conclusion that Complainant filed a valid and timely complaint when he first visited the OSHA office. The ALJ had reasoned that although the OSHA official had not followed the OSHA procedural manual's requirements for filing a complaint; the manual was neither a regulation nor a statute; that the STAA regulations do not mandate procedure, form or content for filing a complaint; that the notes made by the OSHA official together with other records at the OSHA office sufficiently identified the essential nature of the complaint and the identity of the parties; and that Respondent had adequate and sufficient notice to prepare for the hearing. Harrison v. Roadway Express, Inc. , ARB No. 00-048, ALJ No. 1999-STA-37 (ARB Dec. 31, 2002).

[STAA Whistleblower Digest II B 2]
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.

[STAA Whistleblower Digest II B 2]
TIME LIMITATIONS ON FILING IN DISCRIMINATION CLAIMS, GENERALLY

In National Railroad Passenger Corp. v. organ , _ US _, 122 S Ct 2061, 153 L Ed 2d 106 (2002), a Title VII claim, the United States Supreme Court examined the application of time limitations in situations involving the raising of claims of discrete discriminatory or retaliatory acts, and situations involving charges alleging a hostile work environment. The Court held that a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his or her charge within the statutory period, but that claims based on a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. In neither instance is a court barred from applying equitable doctrines that may toll or limit the time period. An employer may raise laches if the plaintiff unreasonably delays filing and as a result harms the defendant.

II.B.2. Decision on timeliness of complaint prior to hearing

In Ellis v. Ray A. Schoppert Trucking, 92-STA-28 (ALJ Aug. 7, 1992), the ALJ determined initially and conditionally that the threshold issue of whether the complainant timely filed his complaint did not require a formal hearing for its resolution. Accordingly, he issued an order to show cause why the complaint should not be dismissed. Included in the order was expository text describing the rationale for dismissal of the claim. The order directed the parties to state why this text should not be adopted and forwarded to the Secretary as the recommended decision and order. No party responded, and the ALJ forwarded an Order of Dismissal to the Secretary.

In affirming the dismissal, the Secretary voiced no objection to the ALJ's handling of the issue. Ellis v. Ray A. Schoppert Trucking, 92-STA-28 (Sec'y Sept. 23, 1992).

II.B.2. 30 day period for requesting a hearing is a jurisdictional matter

The statutory provision which authorizes the filing of objections and requests for a hearing differs from that which authorizes the filing of complaints in that the former states that "[w]here a hearing is not timely requested, the preliminary order shall be deemed a final order which is not subject to judicial review." 49 U.S.C. §2305(c)(2)(A). The ALJ concluded that this language indicates that the 30-day period for filing objections and requesting a hearing is jurisdictional. Flener v. Julius Kolesar, Inc. , 86-STA-26 (ALJ Sep. 12, 1986).

[Editor's note: The Secretary adopted the ALJ's dismissal on other grounds and did not address the jurisdictional issue above.]

II.B.2.a. Weight and effect of Assistant Secretary's findings in STAA case; effect of objection to order but not findings

In a proceeding under STAA, 49 U.S.C. app. § 2305, a party may explicitly object to the Assistant Secretary's preliminary "order," without placing the preliminary "findings" at issue before the administrative law judge. See 49 U.S.C. app. § 2305(c)(2)(A); 29 C.F.R. § 1978.105(a). Generally speaking, the Assistant Secretary's preliminary findings are deemed final and not subject to review where the parties fail to object to the findings within thirty days.

Where an objection to the findings or preliminary order is filed, a hearing is conducted de novo by an administrative law judge. 20 C.F.R. § 1978.106(a). Thus, the investigative findings have effect only if unchallenged. In the event that a hearing is requested, they are not accorded weight in any decision in the case.

Where, however, it appeared that the employer had accepted the terms of the preliminary findings and order only as a matter of expediency (intending those terms to act as a settlement offer), it was unclear whether the Employer was actually notified of the complainant's objection to the order (which did not require reinstatement), it was not clear that the pro se employer was advised that complainant's objection did not place the entire case at issue until just prior to the hearing, any attempt to press the administrative law judge to expand the hearing issues would probably have been futile, and none of the administrative law judge's pre-hearing orders directly required or solicited employer's position on this precise issue. The Secretary found that, under these precise circumstances, the employer had not been offered proper notice and meaningful opportunity to respond to the Assistant Secretary's preliminary decision, and remanded the case for a de novo hearing on the merits. Smith v. Specialized Transp. Servs., 91-STA-22 (Sec'y Nov. 20, 1991).

II B 2 a Failure to make timely objection to finding of the Regional Administrator

The Act and the regulations expressly provide that any objections to the findings of the Regional Administrator shall be filed within 30 days of a complainant's receipt of such findings or orders. If this mandatory time frame is not followed, the Regional Administrator's determinations become the final decision of the Agency, by operation of law. See 47 U.S.C. § 2305(c)(2)(A) and 29 C.F.R. § 1978.105.

Thus, where the Complainant failed to make a timely objection to the preliminary findings (though he did make an untimely objection), and ignored the ALJ's order to show cause, the Secretary adopted the ALJ's recommendation of dismissal of the complaint. Green v. Curtis Expo & Storage, 94-STA-47 (Sec'y Mar. 16, 1995).

II.B.2.b. Sufficiency of objection to STAA preliminary finding; request for extension tantamount to objection

In Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Aug. 5, 1992), the complainant sent a letter to OALJ within the 30-day filing limit requesting an extension in order to retain counsel and to prepare and file his objections to the preliminary findings of the Assistant Secretary. OALJ docketed the case and issued an order extending the filing period. Respondent's counsel entered an appearance -- he did not except to the order extending the filing period. Complainant was granted a second extension, citing emergency surgery and difficulties securing documentation; he previously contacted respondent's law department in regard to the need for this extension. complainant's objections were timely received within the extended period.

The Secretary found that complainant's objection was implicit in the statement that he required additional time in which to prepare and file objections. She noted that OALJ apparently understood the letter to express an objection because the case was docketed and assigned to an ALJ for hearing. Under the circumstances, the Secretary construed the first extension request to be a timely objection to the Assistant Secretary's investigation findings, and the later filing to be a clarification and supplement to his objection.

[Editor's Note: The Secretary also found that, even assuming the request did not suffice as an objection, fairness requires tolling of the time limitation. See headnote at II.B.2.d.ii.]

II.B.2.c.i. Date of filing determined by postmark

In STAA proceedings, the date of postmark is considered the date of filing a request for a hearing before an ALJ. 29 C.F.R. § 1978.105(a). Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Aug. 5, 1992).

II.B.2.c.ii. Computation of timeliness of filing

In Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Aug. 5, 1992), the Secretary found that a letter containing complainant's objection to the finding of the Assistant Secretary was timely under 29 C.F.R. § 1978.104(b) where the Assistant Secretary's finding was dated Thursday, September 26, 1991, and the letter was postmarked October 28. The Secretary assumed a two-day delivery time.

Alternatively, the Secretary found that 29 C.F.R. § 18.4(c)(1) arguably permits the addition of five days to the prescribed period for documents delivered by mail. She noted that 29 C.F.R. § 1978.106(a) applies the procedures appearing at Part 18 to STAA hearings.

II.B.2.c.ii. Timeliness of filing of complaint

Since neither the statute, the implementing regulations, nor an executive order establishes the method for computing the 180 day limitation period for filing a complaint under section 405 of the Surface Transportation Assistance Act of 1982, 49 U.S.C. app. § 2305, the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18 are applicable. See 29 C.F.R. § 18.1(a).

Thus, where a complainant filed his STAA whistleblower complaint on the 181st day following his discharge, but that day was a onday, the complaint was timely since 29 C.F.R. § 18.4(a) moves the time period to the next business day where the last day of the period is a Saturday, Sunday or legal holiday observed by the Federal government. Greathouse v. Greyhound Lines, Inc. , 92-STA-18 (Sec'y Aug. 31, 1992).

[STAA Digest II B 2 c iii]
STAA LIMITATIONS PERIOD IS TRIGGERED BY DATE EMPLOYEE RECEIVES NOTICE OF ADVERSE ACTION

In Maverick Transportation, LLC v. U.S. Dept. of Labor, Admin. Review Bd. , No. 12-3004 (8th Cir. Jan. 16, 2014, corrected Jan. 17, 2014) (2014 WL 148713), the Complainant, a commercial truck driver, was involved a fatal traffic accident, and was allowed to drive the truck away from the scene by a state trooper on condition that the truck's brakes were adjusted immediately, and that the trucking company, Maverick Transportation, LLC (Maverick), provided assurances that other federal safety violations would be corrected. The Complainant drove the truck about 80 miles to a truck stop, left the trailer to be picked up by another driver, and proceeded with the truck another 9 miles to his home. Maverick had the Complainant take medical leave for depression. Upon being cleared to work, the Complainant resigned instead. Maverick asked the Complainant to drive the truck about 200 to 250 miles to the yard, and the Complainant refused to do so unless Maverick first fixed the remaining defects and provided transportation home. The Complainant informed Maverick that the uncorrected defects were in violation of federal safety regulations, and left the truck at the truck stop where he had left the trailer a month earlier. The Complainant informed Maverick of the location of the truck. Maverick placed an abandonment notation in the Complainant's Drive-A-Check (DAC) report. After resigning from Maverick, the Complainant worked for five different trucking companies between 2004 and 2008. In 2008, the Complainant began having trouble finding work, and was told by a recruiter that information on his DAC report prevented his hiring. The Complainant then requested the report, and learned for the first time in July or August of 2008 about the abandonment notation. The Complainant subsequently sought employment with a trucking company for which he met all hiring criteria, but that company refused to hire him because of the DAC report. In December 2008, the Complainant filed a STAA complaint with OSHA against Maverick. The ALJ found that the complaint was timely, and that Maverick had unlawfully retaliated against the Complainant for his refusal to drive the truck back to the yard. The ARB affirmed, and Maverick petitioned for review by the Eighth Circuit.

On appeal, Maverick first contended that the complaint was not timely. The court, giving Chevron deference to the ARB, found that the ARB's finding that the complaint was timely was not contrary to law. The court found that the ARB had interpreted the STAA to incorporate an exception to the general rule that a claim accrues at the time of injury, and adopted instead a rule that the limitations period begins to run when the employee receives notice of the adverse action taken by the employer. The court found that under Chevron , the court's review is only whether the agency's interpretation is a permissible one, and disagreed with one dissenting member of the court that Chevron deference was inappropriate.

[STAA Digest II B 2 c iii]]
TIMELINESS OF BLACKLISTING CLAIM; ARB ADOPTS DISCOVERY RULE AS TO CLAIM ACCRUAL

In Beatty v. Inman Trucking Management, Inc. , ARB No. 09-032, ALJ Nos. 2008-STA-20 and 21 (ARB June 30, 2010), the ARB found that the statute of limitations on the Complainants' blacklisting complaint did not accrue until the date they discovered, almost two years after they had been terminated by the Respondent, that a negative DAC report (an employment record maintained by a consumer reporting agency on commercial truck drivers) submitted by the Respondent prevented their obtaining other truck driving employment. The ARB noted that there was nothing in the record to suggest that the Respondent ever communicated to the Complainants its decision to file an arguably negative DAC report, or that the Complainants were required to look at the DAC report. The ARB acknowledged that complainants have an affirmative duty of diligent inquiry in response to an adverse event, but found that it did not necessarily follow that the Complainants in the instant case should have suspected that the Respondent would file a negative DCA report upon their termination.

[STAA Digest II B 2 c iii]
TIMELINESS OF REQUEST FOR HEARING; LIMITATIONS PERIOD FOUND TO HAVE RUN FROM DATE THAT COMPLAINANT RECEIVED OSHA'S FINDINGS RATHER THAN THE DATE THAT COMPLAINANT'S ATTORNEY LEARNED OF THE FINDINGS

In Smith v. CRST International, Inc. , ARB No. 06-146, ALJ No. 2006-STA-31 (ARB June 30, 2008), the Complainant did not file his objections to the OSHA findings and request for hearing until nearly two months after he signed a certified mail receipt for those findings, and therefore the appeal to OALJ was not timely. The ARB rejected the Complainant's contention that the limitations period should run from the time that OSHA mailed the findings to his attorney, or that the time period should be equitably tolled until the date the attorney received the findings. The ARB found that the STAA regulations require OSHA to send a copy of its findings by certified mail "to all parties of record; that the Complainant was a party of record; and that the record contained a certified mail card signed by the Complainant. Compliance with the regulations is not a ground for equitable tolling.

[Editor's note: The ARB decision does not state why the attorney was not notified of the findings at the same time as the parties.]

II.B.2.c.iii. Date of receipt

The regulations provide that the parties have thirty days following receipt of the preliminary findings of the Assistant Secretary in which to object the findings and request a hearing before an ALJ. 29 C.F.R. § 1978.105(a). Where the Assistant Secretary issued his findings on August 27, 1992, and Complainant did not request a hearing until October 15, 1992, the request was nevertheless timely where Complainant produced a signed certified mail receipt showing that he did not receive the Assistant Secretary's findings until September 17, 1992.

Reemsnyder v. Mayflower Transit, Inc., 93-STA-4 (ALJ Nov. 12, 1993).

II B 2 c iii Protected activity occurred before effective date of Act; discriminatory act after effective date

In Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13, 1984), the Complainant's protected activity occurred before the effective date of the STAA, but the alleged retaliation occurred after the Act went into effect. The Secretary held that it is the date of the retaliatory act that determines the applicability of the Act.

II. B. 2. c. 3 Date of initiation period

In Yellow Freight System, Inc. v. Reich, No. 93- 3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS 15585), the Respondent contended that the trigger date for the 180 limitation period for filing a STAA whistleblower complaint is the date an employee receives warning letters rather than the date of actual discharge. The Respondent relied on Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 415, 80 S. Ct. 822, 4 L. Ed. 2d 832 (1960) (six month statute of limitations under § 10(b) of the NLRA prevents attacking legitimacy of time-barred violations) and NLRB v. McCready and Sons, Inc., 482 F.2d 872, 875 (6th Cir. 1973) (same).

Observing that the Supreme Court noted in Local Lodge No. 1424 that its decision "has drawn on [the National Labor Relations Act's] purpose and history, and we do not assert the universal applicability of our resolution of the particular question presented for decision." 362 U.S. at 424 n.15, the Sixth Circuit cited with approval the Secretary adoption of the following ALJ finding:

Unlike the NLRA, which has the overall purpose of securing industrial peace through the balance of competing interests . . . the "whistleblower" provisions of the Surface Transportation Assistance Act were enacted specifically to encourage employee reporting of noncompliance with safety regulations and to protect such employees against retaliation [*23] for reporting these violations. Moon v. Transport Drivers, Inc., 836 F.2d 226, 228 (6th Cir. 1987).

The Sixth Circuit concluded that the NLRA and STAA have different "purposes and histories," and there is no reason to believe that the Supreme Court intended the rationale of Local Lodge No. 1424 to apply here.

The Sixth Circuit found more to the point English v. Whitfield , 858 F.2d 957, 961 (4th Cir. 1988), in which the Fourth Circuit determined that the statute of limitations begins to run only upon receipt of "final and unequivocal notice" of discharge. Until an employee is notified of termination "there is the possibility that the discriminatory decision itself will be revoked, and the contemplated action not taken, thereby preserving the pre-decision status quo." Id.

The Sixth Circuit found this language to aptly describes the situation in this case. It also noted that the Respondent's argument would require employees to file protective STAA complaints each time they are disciplined, regardless of the nature of the discipline, or risk being discharged 181 days later without recourse. The three letters all advised of more severe discipline if Smith failed to follow company rules; none even hinted that he would be discharged for events that had already occurred.

II.B.2.c.iii. Timeliness of filing of complaint; date of initiation of period

In whistleblower cases, the time for filing a complaint begins running at "the time of the challenged conduct and its notification, rather than the time its painful consequences are ultimately felt...." English v. Whitfield, 858 F.2d 957, 961 (4th Cir. 1988). Accord Jenkins v. City of Portland, 88-WPC-4 (Sec'y May 22, 1991), slip op. at 6-7. See also Kelly v. Flav-O-Rich, Inc., 90-STA-14 (Sec'y May 22, 1991), slip op. at 3-4 (pendency of state employment security commission case did not toll the STAA limitation period). Thus, in Ellis v. Ray A. Schoppert Trucking, 92-STA-28 (Sec'y Sept. 23, 1992), the time limit began to run on the day the complainant was discharged rather than the day an unemployment referee ruled that the complainant was discharged for failing to work.

II.B.2.c.iii. Suspension followed by later discharge; "fresh significance" of incident prompting retaliation

Where the incident that prompted retaliation allegedly took two forms -- an immediate suspension, and a later discharge -- the limitation period under the STAA for the discharge commences a separate limitation period. The idea that the a given activity should motivate only a single adverse action is logically defective; rather the incident prompting the retaliation can take on "fresh significance. See Delaware State College v. Ricks, 449 U.S. 250 (1980); Stoller v. Marsh, 682 F.2d 971 (D.C. Cir. 1982), cert. denied, 460 U.S. 1037 (1983).

Moyer v. Yellow Freight Systems, Inc., 89-STA-7 (Sec'y Nov. 21, 1989), aff'd in part and rev'd in part both on other ground sub nom., Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).

[Note: Compare this case with English v. Whitfield, 858 F.2d 957 (4th Cir. 1988).]

II B 2 c iii Actual receipt governs even though DOL sent original letter by certified mail

In Bryant v. Bob Evans Transportation, 94-STA-24 (Sec'y Apr. 10, 1995), the Department investigated the Complainant's complaint and issued a determination on December 13, 1993 that there was no violation of the STAA. Some time later, Complainant's wife telephoned the Department to inquire about the results of the investigation, and was told that the finding were sent by certified mail in December, and that the findings were never "picked up" at the post office. Complainant's wife requested another copy of the findings, which she promptly picked up on February 5, 1994. Complainant filed an appeal of those findings on March 4, 1994.

The Secretary found that there was credible evidence that the Complainant did not receive the findings until February 5, 1994, and therefore the complaint was timely under 49 U.S.C. § 31105(b)(2)(B).

II.B.2.c.iv. Adequacy of telephone complaint

In Kovas v. Morin Transport, Inc., 92-STA-41 (ALJ June 2, 1993), adopted in part and reversed in part on other grounds, (Sec'y Oct. 1, 1993), the ALJ found that a telephone contact of an OSHA office was sufficient to establish a timely filing of a STAA complaint. In so ruling, the ALJ noted that the STAA regulations do not require any particular form of complaint, case law makes it clear that the complaint procedure is relatively informal, the regulations provide for use of a telephone to contact an OSHA office, and the record indicated that OSHA field offices accept telephone complaints and the field operations manual provides authorization for the process. The Secretary agreed with the ALJ that "the complaint was appropriately and timely filed with OSHA."

[STAA Whistleblower Digest II B 2 c iv]
TIMELINESS OF COMPLAINT; TELEPHONE CALL TO OSHA TO GIVE A "HEAD'S UP" ABOUT ANTICIPATED RETALIATION

In Farrar v. Roadway Express , ARB No. 06-003, ALJ No. 2005-STA-46 (ARB Apr. 25, 2007), the Complainant argued that he timely filed a STAA complaint when he called OSHA from a truck stop to give it a "heads-up" that he suspected that he may be retaliated against in an upcoming grievance hearing. The ARB rejected this contention, holding that that, "while � 29 C.F.R. § 1978.102 provides that '[n]o particular form of complaint is required,' at the very least a complainant must evince his current intention to file a complaint." USDOL/OALJ Reporter at 8. The ARB distinguished Harrison v. Roadway Express, Inc. , 1999-STA-37 (ALJ Dec. 16, 1999), aff'd ARB No. 00-048 (ARB Dec. 31, 2002), because in that case the complainant had personally visited an OSHA office and provided specific and detailed information on the nature of the complaint sufficient to permit OSHA to build the entire complaint from the record of the interview, whereas in the instant case the Complainant had not alleged that he had provided such details, nor that his phone call was memorialized in notes or a logbook as had happened in Harrison .

II.B.2.c.iv. Telephonic complaint establishes date for determining timeliness

Citing 29 C.F.R. § 1978.102(b) and (c), the ALJ in Kovas v. Morin Transport, Inc., 92-STA-41 (ALJ June 2, 1993), held that the date the Complainant telephoned OSHA and alleged a discriminatory discharge in retaliation for his complaints about maintenance and safety of trucks was the date to determine the timeliness of his complaint.

II.B.2.c.iv. Telephone complaint

In Reemsnyder v. Mayflower Transit, Inc., 93-STA-4 (ALJ Nov. 12, 1993), the ALJ accepted Complainant's credible and uncontradicted testimony that he had first contacted OSHA with his complaint in July by telephone rather than on October 21(the first OSHA document recording a contact). The record contained a letter from a United States Senator dated October 11 referring to Complainant's earlier complaint. The final day of the 180 day filing period was October 15.

The ALJ noted that the regulations do not require any particular form of complaint, and concluded that both Complainant's initial contact and the Senator's letter, both were sufficient to constitute timely complaints.

The ALJ indicated that he would also invoke equitable tolling for the six days until the first recorded OSHA contact based on Complainant's mistaken belief that DOT would also pursue the section 2305 claim if it substantiated his allegations of safety violations.

II.B.2.d. NLRB cases; precedential value

In Smith v. Yellow Freight System, Inc., 91-STA-45 (ALJ Nov. 13, 1992), aff'd, (Sec'y Mar. 10, 1993), the Respondent contended that the Complainant's complaint was not timely. It was not disputed that the Complainant was actually discharged within the 180 day filing period; however the Respondent contended that earlier letters of discipline, which warned of possible discharge, triggered the limitations period. The ALJ concluded that the NLRB cases relied upon by the Respondent, exemplified by Local Lodge No. 1424 v. NLRB, 362 U.S. 411 (1960) -- holding that where conduct occurring within the limitations period is not patently an unfair labor practice, a party may not rely on events falling outside the limitations period to "cloak with illegality that which was otherwise lawful" -- were not applicable to STAA whistleblower proceedings. Specifically:

the NLRB holdings were drawn from the NLRA's specific purpose and history -- securing industrial peace -- while the STAA whistleblower provision encourage employees to report on noncompliance with safety regulations by protecting them from retaliation.
those holdings do not apply to time-barring provisions, such as the STAA's, that merely bars a proceeding.
there is case law interpreting the more closely analogous time-barring provisions of similar federal whistleblower statutes, such as English v. Whitfield, 858 F.2d 957 (4th Cir. 1988), holding that the period begins to run from the time of the discriminatory act, that is, only when the employee is given final and unequivocal notice of an employment decision having delayed consequences.

The ALJ held that although the Complainant suspected that the final letter with notice of hearing was issued with the intent to discharge, the notice alone was not tantamount to actual discharge.

The Secretary adopted the ALJ's holding as supported by substantial evidence, and agreed with the ALJ's finding that the complaint was timely filed. Smith v. Yellow Freight System, Inc., 91-STA-45 (Sec'y Mar. 10, 1993).

[STAA Whistleblower Digest II B 2 d i]
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.

II.B.2.d.i. Equitable tolling

The 180-day limitation period is not jurisdictional, but rather, is subject to waiver, estoppel, and equitable tolling. The Secretary held, however, that it cannot casually ignore the legislated statutory limitation, even if it may bar an otherwise meritorious claim.

After being discharged, the Complainant filed a wrongful discharge suit in federal court. Meanwhile, the 180-day limitation period under the STAA expired. The Complainant subsequently discovered the STAA remedy and argued that the statutory period should be tolled. He argued that the employer knew of the STAA cause of action and intended to use it as a defense in the civil matter, but did not raise or disclose the defense by the time of the expiration of the statutory period. The Complainant asserted that the employer actively misled the complainant and therefore, the period should be tolled. The ALJ found, and the Secretary affirmed, that it had not been established that counsel for the employer withheld any information from the Complainant during the critical 180-day period, and, in any event, it was not an employer's burden to supply an employee's remedies. The Complainant's failure to show that the employer withheld any information prevents any contention, as a ground for equitable tolling, that the employer actively misled the Complainant respecting the STAA cause of action. Nixon v. Jupiter Chemical, Inc. , 89-STA-3 (Sec'y Oct. 10, 1990).

[STAA Whistleblower Digest II B 2 d]
TIMELINESS OF COMPLAINT; WRONG FORUM GROUND FOR EQUITABLE TOLLING IS NOT AVAILABLE IN STAA CASES

In Hillis v. Knochel Brothers, Inc. , ARB Nos. 03-136, 04-081 and 04-148, ALJ No. 2002-STA-50 (ARB Oct. 19, 2004), the Complainant filed complaints with several state agencies alleging that the Respondent wrongfully terminated his employment. By the time he filed a complaint with OSHA, however, more than 180 days had transpired after his discharge. The ALJ found that the Complainant was entitled to equitable tolling under the "precise statutory claim in the wrong forum" principle stated in School Dist. of Allentown v. Marshall , 657 F.2d 16, 19-21 (3d Cir. 1981). Following a hearing on the merits, the ALJ found that the Complainant had been wrongfully discharged. The ARB reversed:

Although this Board has been guided by Allentown , the STAA regulations cite filing with another agency as a circumstance not justifying equitable tolling:

[T]here are circumstances which will justify tolling of the 180-day period on the basis of recognized equitable principles or because of extenuating circumstances, e.g., where the employer has concealed or misled the employee regarding the grounds for discharge or other adverse action; or where the discrimination is in the nature of a continuing violation. The pendency of grievance-arbitration proceedings or filing with another agency are examples of circumstances which do not justify a tolling of the 180-day period.

29 C.F.R. § 1978.102(d)(3) (emphasis supplied). See, e.g., Hoff v. Mid-States Express, Inc. , ARB No. 03-051, ALJ No. 2002-STA-6 (ARB May 27, 2004). Thus, to the extent that a STAA complainant requests equitable tolling because he filed in the wrong forum, Allentown is inapplicable. The ALJ erred by relying on Allentown to proceed to a hearing on the merits of Hillis's complaint. R. D. & O. at 12-14.

II.B.2.d.i. Equitable tolling for filing administrative complaint

The STAA limitation period for filing an administrative complaint may be subject to equitable tolling. 29 C.F.R. § 1978.102(d)(2); see Hicks v. Colonial Motor Freight Lines, 84-STA-20 (Sec'y Dec. 10, 1985), slip op. at 7-8; cf. Larry v. The Detroit Edison Co., Inc., 86-ETA-32 (Sec'y June 29, 1991), slip op. at 11-19, aff'd, No. 91-3737 (6th Cir. Apr. 17, 1992). The regulations provide two examples of valid reasons for equitable tolling:

where the employer has concealed or misled the employee regarding the grounds for discharge, or
where the discrimination is in the nature of a continuing violation.

29 C.F.R. § 1978.102(d)(3). Other recognized bases for equitable tolling of the filing limitation in whistleblower cases include whether "the plaintiff has in some extraordinary way been prevented from asserting his rights, or ... raised the precise statutory claim in issue but has mistakenly done so in the wrong forum." School District of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981), quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978); Hicks, slip op. at 8.

Ellis v. Ray A. Schoppert Trucking, 92-STA-28 (Sec'y Sept. 23, 1992).

II.B.2.d.i. STAA 30-day period for filing objections to preliminary findings

Under the STAA, upon issuance of the Assistant Secretary's investigation findings and a preliminary order, any aggrieved party "may, within thirty days, file objections to the findings or preliminary order, or both, and request a hearing on the record . . . . Where a hearing is not timely requested, the preliminary order shall be deemed a final order which is not subject to judicial review." 49 U.S.C. app. § 2305(c)(2)(A).

The STAA 30-day period for objecting to the Assistant Secretary's investigation findings, however, is subject to equitable modification. In reaching that conclusion the Secretary cited prior decisions in which she had treated STAA and other whistleblower filing provisions as statutes of limitation, and federal case law treating analogous filing provisions as statutes of limitation. She also cited the remedial purpose of section 405 of the STAA, the lack of emphatic language in section 405(c)(2)(A) which would normally be associated with a jurisdictional filing period ("the person alleged to have committed the violation or the complainant may, within thirty days, file objections" (emphasis added)), and the comparatively strict language of section 405(d) filing period for review by the court of appeals ("[any] petition must be filed within sixty days from the issuance of the Secretary of Labor's order" (emphasis added)).

Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Aug. 5, 1992) (ALJ had concluded that he lacked jurisdiction because the complainant had filed his objections out-of- time).

[STAA Digest II B 2 d ii]
EQUITABLE TOLLING UNDER STAA; FAILURE OF OSHA TO NOTIFY COMPLAINANT'S ATTORNEY OF RULING ON SECOND RULING ON COMPLAINT

In Smith v. Solis , No. 08-4058 (6th Cir. July 26, 2010)(case below 2006-STA-32), a truck driver petitioned for review of a final decision of the ARB, which dismissed as untimely the driver's appeal of the determination by OSHA that the driver's anti-retaliation complaint against his employer under the Surface Transportation Assistance Act lacked merit. At the time of the controversy, the truck driver was employed by Lake City Enterprises, Inc. "through an assignment or arrangement with CRST International, Inc." The truck driver filed a single complaint under STAA against Lake City Enterprises and CRST after he was allegedly terminated for refusing to drive unsafe equipment provided to him by Lake City and his subsequent notice to Lake City that he intended to report the company's use of unsafe equipment to OSHA.

While the truck driver filed one single complaint, OSHA ran separate investigations of Lake City and CRST. OSHA reported a finding of no merit as to the truck driver's complaint against Lake City in a letter dated May 12, 2006 and sent the truck driver and his attorney a copy. In the letter he was informed of the 30 day-limitation to contest the findings and request a hearing. His attorney filed an objection to the Lake City decision on behalf of his client and requested a hearing against both Lake City and CRST on May 26, 2006, noting that he had not yet received a determination on the complaint against CRST. Unbeknownst to the attorney, on March 21, 2006 OSHA had mailed a notice to the truck driver that his complaint against CRST had been found to be non-meritorious because CRST and Lake City were not "joint" or "integrated" companies, and therefore, CRST could not be considered to be his employer under STAA. This letter stated that he had 30 day to appeal and indicated that a copy had been sent to his attorney. However, his attorney did not receive a copy of this letter via certified mail until May 22, 2006; this letter was post-marked May 17, 2006. The Department of Labor moved to dismiss the truck driver's request for a hearing as untimely and the truck driver's attorney responded with a request for equitable tolling.

The question of whether the court had jurisdiction to review an untimely request for a hearing was one of first impression for the 6th Circuit. The employer and the Secretary of Labor conceded that the employer would not be prejudiced if the truck driver was granted tolling in this case. The Secretary also conceded that the Act's time limitations are not jurisdictional and that equitable tolling is available in this case. In concluding that the truck driver was entitled to equitable tolling, the Court found that the blame for any negligence fell on OSHA for failing to send the notice to the truck driver's attorney for some two months after the fact, despite knowing that the truck driver was represented.

[Editor's Note: ARB decision on remand Smith v. Lake City Enterprises, Inc ., ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010).]

[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.

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING NOT AVAILABLE WHERE COMPLAINANT REPRESENTED BY AN ATTORNEY OR BASED ON IGNORANCE OF THE FILING PERIOD

In McCrimmons v. CES Environmental Services , ARB No. 09-112, ALJ No. 2009-STA-35 (ARB Aug. 31, 2009), the ARB agreed with the ALJ that the Complainant was not entitled to equitable tolling of the limitations period for filing an STAA complaint where the Complainant had been represented by an attorney. Moreover neither the Complainant's own lack of awareness of the filing period, or his inability to discover it, justified equitable tolling.

II B 2 d ii Failure to post employee's rights under the STAA and equitable tolling

Complainant argued that the 180-day limitation period should be tolled because of the absence of a requirement under the STAA that an employer post or ostherwise disseminate to its employees information concerning their rights and protections under the STAA. Although the ALJ found merit to the argument, he held that, as with Title VII claims, failure to post notices does not toll the prescriptive period. The Secretary affirmed the finding in Nixon v. Jupiter Chemical, Inc., 89-STA-3 (Sec'y Oct. 10, 1990). Nixon v. Jupiter Chemical, Inc. , 89- STA-3 (ALJ July 16, 1990).

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING BASED ON FILING IN WRONG FORUM

In Bedwell v. Spirit Miller NE, LLC , ARB No. 09-094, ALJ No. 2009-STA-29 (ARB Aug. 27, 2009), the ARB affirmed the ALJ's finding that the Complainant had not shown equitable grounds for tolling his untimely STAA complaint. The Complainant had presented a notice of an IRS case determination, but did not show that he had filed an STAA complaint with the IRS within the STAA limitations period.

[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; COMPLAINANT'S NOTICE TO FMSCA THAT HE HAD BEEN FIRED IS INSUFFICIENT TO SUPPORT EQUITABLE TOLLING UNDER WRONG FORUM DOCTRINE

In Hoff v. Mid-States Express, Inc. , ARB No. 03-051, ALJ No. 2002-STA-6 (ARB May 27, 2004), the Complainant had filed a complaint with the FMSCA alleging that his employer had violated federal motor carrier safety regulations. Several weeks later he was fired and he then contacted FMSCA to inform it about the termination of employment. About a year later FMSCA contacted the Complainant by letter to inform him that citations had been issued against the employer; however, Complainant learned at that time that FMSCA had only investigated under the Federal Motor Carrier Safety Act and had not investigated a STAA retaliation claim. The Complainant then filed a STAA complaint with OSHA. OSHA and the ALJ dismissed the complaint as untimely. An STAA complaint must be filed within 180 days after the alleged violation occurred, and the Complainant's OSHA complaint was more than a year after the alleged violation.

On appeal, the ARB agreed with the ALJ that equitable principles did not apply to toll the limitations period. Analyzing under the familiar School Dist. of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981) equitable tolling principles, the ARB found that the Complainant had not demonstrated that he raised "the precise statutory claim in issue" with the FMSCA, i.e., that he was discharged in retaliation for activity protected by the STAA. In addition he did not contend that the Respondent misled him into filing a STAA complaint in the wrong forum, or that there were any extraordinary circumstances that prevented him from filing in the correct forum.

[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF REQUEST FOR HEARING; OVER NINE MONTHS BETWEEN SECRETARY'S FINDINGS AND REQUEST

In Tavares v. Swift Transportation Co., Inc. , ARB No. 01-036, ALJ No. 2001-STA-13 (ARB Oct. 2, 2001), Complainant filed his complaint over nine months after the most recent OSHA determination in a series of three complaints. The OSHA determination letters all provided a notice of the right to request a hearing within 30 days. Complainant argued that the time limit for filing a complaint should be excused because he was not properly served with the determination letters and because as a professional truck driver he is often away from home, as long as one and one-half months. Complainant, however, provided no proof of improper service. Moreover, the ARB found no error in the ALJ's conclusion that even if Complainant's occupation as a professional truck driver prevented him from filing his complaint in a timely fashion, it does not excuse his failure to file his written objections until nearly ten months after he received his most recent notice of findings from the Secretary.

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; FAILURE OF EMPLOYER TO POST STAA WHISTLEBLOWER PROVISION OR TO MENTION IT IN THE DRIVER'S MANUAL

An employer's failure to post the STAA whistleblower provisions "does not amount to the kind of active misrepresentation that is required to invoke equitable tolling" of the period for filing a STAA complaint. Moreover, the fact that the STAA is not mentioned in the employer's driver's manual does not excuse a complainant's late filing. Tierney v. Sun-Re Cheese, Inc. , ARB No. 00-052, ALJ No. 2000-STA-12 (ARB Mar. 22, 2001).

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

In Tierney v. Sun-Re Cheese, Inc. , ARB No. 00-052, ALJ No. 2000-STA-12 (ARB Mar. 22, 2001), Complainant had filed a claim with the Pennsylvania Department of Labor and Industry, and contacted the Pennsylvania Human Relations Commission. This claim was filed within the 180-day STAA whistleblower filing period. The ARB found nothing in Complainant's pleadings or testimony, however, to demonstrate that he "'raised the precise statutory claim in issue' [before these agencies] -- i.e. , a complaint that he was discharged in retaliation for activity protected by the STAA whistleblower provision." Accordingly, Complainant's contacts with Pennsylvania agencies were found not to toll the running of the STAA limitations period.

[STAA Digest II B 2 d ii]
EQUITABLE TOLLING; WRONG FORUM; COMPLAINANT REPRESENTED BY COUNSEL

In Glasscock v. Alliant Foodservice, Inc. , 1999-STA-44 (ALJ Jan. 13, 2000), Complainant filed his STAA complaint with the Oregon OSHA within the 180 day filing period, but did not file his complaint with the Federal OSHA office until after the 180 days had expired. The ALJ found that the regulation at 29 C.F.R. § 1978.102(c) (1999) requires a filing with the federal OSHA office, and was not persuaded by Complainant's argument that the Oregon OSHA is incorporated into the regulations. The ALJ also rejected equitable tolling based on filing the precise statutory claim mistakenly in the wrong forum because Complainant had been represented by counsel throughout. See Kent v. Barton Protective Services , 1984-WPC-2, slip op. at 11-12 (Sec'y, Sept. 28, 1990), aff'd, Kent v. U.S. Department of Labor , (11th Cir. 1991) (doctrine of equitable tolling is generally inapplicable where a plaintiff is represented by counsel).

II B 2 d ii Tolling based on date complainant learned of retaliatory motive; must be evidence that Respondent concealed or mislead complainant

In Hatcher v. Complete Auto Transit , 94-STA-53 (Sec'y July 3, 1995), the Complainant filed his STAA complaint 341 days after termination of his employment and 463 days after engaging in allegedly protected activity. The Complainant alleged that he did not know that the protected activity was used as a basis for the discharge until "much later." The ALJ found the complaint timely because the Respondent did not notify the Complainant that the incident that Complainant alleged was protected was used against the Complainant to justify his discharge.

The Secretary reversed the ALJ's finding, finding no basis for equitable tolling of the 180-day filing period. The Secretary noted that there was no requirement that an employer give notice to the employee of each fact that might be considered in rendering a discharge decision. Although the regulations prohibit the employer from concealing or misleading the employee regarding the basis for the discharge decision, there was no evidence in the record on which to base a conclusion that the Respondent concealed or mislead the Complainant in this regard.

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING BASED ON FILING IN WRONG FORUM; FILING MUST HAVE RAISED STAA EMPLOYEE PROTECTION ISSUE, NOT MERELY COMPLAINT ABOUT DOT VIOLATIONS

In Trammell v. New Prime, Inc. , ARB No. 07-109, ALJ No. 2007-STA-18 (ARB Mar. 27, 2009), the ARB held that the Complainant was not entitled to equitable tolling of his untimely STAA whistleblower complaint based on his raising the precise statutory claim in issue but mistakenly in the wrong forum, where the Complainant had only complained to the DOT about violations of DOT regulations, and not about the STAA's employee protection provisions.

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; FILING OF EEOC COMPLAINT DOES NOT JUSTIFY INVOCATION OF WRONG FORUM AS GROUND FOR EQUITABLE TOLLING

In Bedwell v. Spirit-Miller NE, LLC , ARB No. 07-038, ALJ No. 2007-STA-6 (ARB Oct. 31, 2007), the Complainant filed an untimely complaint under the STAA, but sought equitable tolling because he had filed an EEOC Charge of Discrimination. The ARB found that the EEOC charge, however, did not justify tolling. It did not constitute a complaint alleging that the Complainant's employer violated the STAA, but rather the pursuit of an alternative remedy with an agency having jurisdiction to award relief under statutes other than the STAA.

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; GRIEVANCE PROCEDURE

In Reeves v. Old Dominion Freight Line , ARB No. 05-128, ALJ No. 2005-STA-34 (ARB Sept. 28, 2007), the Complainant appealed his termination through the Respondent's internal appeal process. His later STAA whistleblower complaint was filed 248 days after his termination. The Complainant argued that the filing period for his STAA complaint did not begin to run until the date upon which the committee responsible for deciding his internal appeal rendered a decision. The ARB rejected this argument, citing the regulation at 29 C.F.R. § 1978.102(d)(3), and stating that "[t]he plain language of the STAA precludes tolling of the limitations period during the pendency of Reeves's internal appeal of his termination." Slip op. at 4 (footnote omitted).

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; INCAPACITY MUST PREVENT, NOT MERELY HAMPER MANAGEMENT OF ONE'S AFFAIRS

In Reeves v. Old Dominion Freight Line , ARB No. 05-128, ALJ No. 2005-STA-34 (ARB Sept. 28, 2007), the Complainant did not file his complaint with 180 days of the date of his termination. On appeal he contended that he was entitled to equitable tolling because he had been incapacitated due to his treatment for Hepatitis C. The ARB found that the Complainant had failed to establish that his medical condition was so severe that it prevented him from pursuing his STAA complaint in a timely manner. Rather, the Complainant had only contended that it had been "difficult" for him to stay on top of his legal affairs. Moreover, the ARB noted that he had been able to pursue an internal appeal process during the STAA limitations period.

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; FILING OF COMPLAINT WITH STATE OSHA AND DOT OFFICES RATHER THAN FEDERAL OSHA OFFICE; WRONG FORUM GROUND FOR EQUITABLE TOLLING

In Miller v. Basic Drilling Co. , ARB No. 05-011, ALJ No. 2005-STA-20 (ARB Aug. 30, 2007), OSHA had dismissed the complaint as untimely. The Complainant sought a hearing, and the assigned ALJ issued a Notice requiring the parties to address the timeliness issue. The Complainant responded with the allegation that he had talked with the Arizona OSHA (ADOSH) office about the circumstances leading to his discharge, and was told he would be called back. He also alleged that he had called an 800 number that he believed to be the general OSHA number, had called the Arizona DOT (ADOT), and the Arizona public safety department. The ALJ issued a recommended decision, finding that the verbal complaint to ADOSH was within the 180 day STAA limitations period, but that contacts with ADOSH and ADOT could not satisfy the STAA filing deadline because employees of those agencies are not federal OSHA officials. Moreover, the ALJ found that the 800 number called by the Complainant was NIOSH's number and not OSHA's. The ARB found that the ALJ erred because he had not specifically analyzed the matter under the "wrong forum" ground for equitable tolling. The ARB remanded for the ALJ to consider whether the Complainant's contacts with the state agencies entitled him to equitable tolling.

[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM; FILING WITH ANOTHER FORUM IN PURSUIT OF REMEDIES OTHER THAN THE STAA DOES NOT SUPPORT EQUITABLE TOLLING; HOWEVER, FILING A STAA COMPLAINT WITH THE WRONG FORUM MIGHT

In Hillis v. Knochel Brothers, Inc. , ARB No. 03-136, ALJ No. 2002-STA-50 (ARB Mar. 31, 2006), PDF the ARB held that the reference in the STAA regulation at 29 C.F.R. § 1978.102(d)(3) to "filing with another agency" as an example of a circumstance that does not justify equitable tolling of the 180-day period for filing a STAA whistleblower complaint does not preclude tolling of the limitations period when a complainant has filed a STAA complaint in the wrong forum. The ARB reviewed the regulatory history of this regulation, and found that "'filing with another agency' refers to the proceedings initiated in the pursuit of remedies created by statutes or regulations other than the STAA." USDOL/OALJ Reporter at 7.

[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM; MERELY MAKING PHONE CALLS TO STATE AGENCIES IS NOT THE FILING OF A COMPLAINT

In Hillis v. Knochel Brothers, Inc. , ARB No. 03-136, ALJ No. 2002-STA-50 (ARB Mar. 31, 2006), PDF the ARB held that telephone calls to state agencies in which the Complainant's name was not taken down nor a report generated, and in which the agencies informed the caller that they did not have jurisdiction to receive the complaint, did not constitute the filing of a claim. Therefore, the "precise statutory claim mistakenly filed in the wrong forum" ground for equitable tolling did not apply to relieve the Complainant from the 180-day limitations period for filing a STAA whistleblower complaint.

[STAA Whistleblower Digest II B 2 d ii]

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM; CLOCK IS STOPPED ONLY FOR THE PERIOD IN WHICH COMPLAINANT WAS UNAWARE THAT THE COMPLAINT HAD BEEN FILED IN THE WRONG FORUM

In Hillis v. Knochel Brothers, Inc. , ARB No. 03-136, ALJ No. 2002-STA-50 (ARB Mar. 31, 2006), PDF the Complainant and/or his wife called a number of state agencies prior to filing his untimely STAA complaint with OSHA. The ARB held that such calls, standing alone, did not constitute the filing of a claim in the wrong forum to support equitable tolling of the STAA limitations period. However, assuming arguendo that they were filings of the precise claim mistakenly filed in the wrong forum, the complaint was still untimely because the Complainant did not file timely with OSHA after learning that the places he called did not have jurisdiction over STAA whistleblower complaints. Tolling only stops the clock only during the period in which the complainant was unaware that the complaint had been filed in the wrong forum.

[STAA Whistleblower Digest II B 2 d ii]
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 supported these findings and that, as a matter of law, the appeal was properly before the ALJ.

[STAA Whistleblower Digest II B 2 d ii]
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).

[Editor's note: See Hillis v. Knochel Brothers, Inc. , ARB Nos. 03-136, 04-081, 04-148, ALJ No. 2002-STA-50, slip op. at 2-3 (ARB Dec. 12, 2005), an Order Requesting briefing by OSHA, Complainant and Intervenor on the issue of whether Allentown does not apply to wrong forum grounds for equitable tolling in STAA cases).]

[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; ARB TO RECONSIDER ITS FINDING THAT THE "WRONG FORUM" EXCEPTION DOES NOT APPLY UNDER THE STAA REGULATIONS

In Hillis v. Knochel Brothers, Inc. , ARB Nos. 03-136, 04-081, 04-148, ALJ No. 2002-STA-50 (ARB Oct. 19, 2004), the ARB dismissed the complaint as untimely filed. In considering whether equitable tolling applied, the Board held that "[A]lthough this Board has been guided by Allentown [ v. Marshall , 657 F.2d 16, 19-21 (3d Cir. 1981)], the STAA regulations [at 29 C.F.R. § 1978.103(d)(3)] cite filing with another agency as a circumstance not justifying equitable tolling. . . . Thus, to the extent that a STAA complainant requests equitable tolling because he filed in the wrong forum, Allentown is inapplicable. The ALJ erred by relying on Allentown to proceed to a hearing on the merits of Hillis's complaint." Slip op. at 3 (citations omitted). The Complainant appealed to the Ninth Circuit, Hillis v. U.S. Dept. of Labor , No. 05-70041; the ARB, however, filed an unopposed motion for remand to reconsider its interpretation of section 1978.102(d)(3) "in light of that provision's regulatory history." Hillis v. Knochel Brothers, Inc. , ARB Nos. 03-136, 04-081, 04-148, ALJ No. 2002-STA-50, slip op. at 2-3 (ARB Dec. 12, 2005) (Order Requesting briefing by OSHA, Complainant and Intervenor).

II.B.2.d.ii. Ignorance of filing period

Where it appeared that the complainant did not timely file his STAA complainant because he did not know that he had the right to file a complaint with the Department of Labor, his ignorance of the law was not a sufficient reason to toll the limitation. Lewis v. McKenzie Tank Lines, Inc., 92-STA-20 (Sec'y Nov. 24, 1992).

II.B.2.d.ii. Tolling while pending before grievance panel

In Rezac v. Roadway Express, Inc., 85-STA-4 (Sec'y June 5, 1985), Complainant contended that his STAA whistleblower complaint was timely where it was not filed within 180 days of his firing, but within 180 days of the decision of a grievance panel. It was undisputed that Complainant's discharge was not suspended during the grievance procedure.

The Secretary found no statutory language or legislative history to indicate that the STAA limitations period should be tolled during the pendency of a grievance procedures, and noted that no tolling is consistent with the holdings of Federal courts under other employee discrimination statutes. See International Union of Electrical, Radio and Machine Workers, 429 U.S. 229 (1976) (Title VII); Roddy v. Shong, 33 FEP Cases 1399 (N.D. Ohio 1983) (Rehabilitation Act of 1973, 29 U.S.C. § 793; Vietnam Era Veteran's Readjustment Assistance Act of 1974, 38 U.S.C. § 2012). The employee protection provision of the STAA is independent of any remedy under a collective bargaining agreement.

Complainant argued that he relied on Federal authorities in believing that the limitations period began from the termination of the grievance procedure. The Secretary found this ground inadequate for application of equitable tolling: the grievance procedure did not prevent an assertion of rights under the STAA, and the decision of the arbitration panel was issued more than four months before the expiration of the period for filing a complaint under the STAA.

Complainant also argued that since OSHA regulations permit a tolling of the limitations period for the filing of discrimination complaint where the employee "resorted in good faith to grievance arbitration proceedings under a collective bargaining agreement," 29 C.F.R. § 1977.15(d)(3), tolling should be permitted under the STAA in the same circumstances. The Secretary rejected this argument, finding that the Supreme Court's opinion in Electrical Workers was more persuasive than the existence of a tolling provision in the OSHA regulations.

II.B.2.d.ii. Equitable tolling; belief DOT would pursue STAA whistleblower relief

II.B.2.d.ii. STAA 30-day period for filing objections to preliminary findings; equitable modification

A limitations period may be tolled where

a claimant has received inadequate notice;
a motion for appointment of counsel is pending and equity would justify tolling the statutory period until the motion is acted on;
the court has led the plaintiff to believe that she had done everything required;
affirmative misconduct on the part of a defendant lulled the plaintiff into inaction;
a claimant actively has pursued his judicial remedies by filing a defective pleading during the statutory period.

Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Aug. 5, 1992), citing Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (per curiam); Irwin v. Veterans Administration, __ U.S. __, 112 L.Ed.2d 435, at 444 and n.3 (1990).

II.B.2.d.ii. Circumstances justifying equitable tolling; STAA complaint

In Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Aug. 5, 1992), the Secretary found that, under the circumstances (see headnote at II.B.2.b.), complainant's letter requesting an extension of time to file objections to the preliminary findings of the Assistant Secretary to be a timely objection. Assuming arguendo that it was not, however, she also found that fairness requires tolling of the time limitation, where

Complainant had diligently pursued his claim by timely seeking enlargement of the filing period while assembling documentation to substantiate his objections;
Complainant had not received notice of the complete service requirement (resulting in his not serving respondent with the initial request for an extension);
Respondent suffered no prejudice. It received notice of the request within a few weeks of the request, and because of the extension, respondent was benefited by complainant's filing of a more complete statement of his contentions and proof early in the proceedings than is required under the regulations;
By docketing the case and extending the filing period, OALJ fostered complainant's belief that he was proceeding in compliance with the regulations.

II.B.2.d.ii. Ignorance of filing period

II.B.2.d.ii. Wrong forum; equitable tolling

After filing a wrongful discharge action in federal district court, and after expiration of the 180-day period of limitation in STAA claims, the Complainant sought to file his STAA claim and have the period tolled. He argued for equitable tolling because he brought the identical claim in the wrong forum. The ALJ found, however that the present claim is separate and distinct from the wrongful discharge action brought in federal court. The former is a statutory claim established as part of a regulatory scheme of the trucking industry. The latter is a common law action founded in contract. The ALJ found that the filing of the latter did not give the employer notice of the statutory claim asserted against it in this forum, and thus, did not warrant tolling of the statutory period. The Secretary affirmed the finding in Nixon v. Jupiter Chemical, Inc., 89-STA-3 (Sec'y Oct. 10, 1990). Nixon v. Jupiter Chemical, Inc. , 89-STA-3 (ALJ July 16, 1990).

II.B.2.d.ii. Claim filed in state court

In Peoples v. Brigadier Homes, Inc., 87-STA-30 (Sec'y June 16, 1988), Complainant filed his complaint 550 days after the alleged violation. The ALJ concluded that the complaint was timely since Complainant had filed an unlawful termination action in the Alabama Circuit Court with 180 days of his termination. According to the ALJ, this action tolled the STAA limitations period pursuant to 29 C.F.R. Section 1978.102(d)(3) (1987) of the regulations (pendency of grievance- arbitration proceedings or filing with another agency). Upon review of the record, however, the Secretary determined that the ALJ erred in his finding that the state court suit involved the same cause of action, since the only sources of information as to the state action came for assertions made by Complainant's counsel which did not constitute evidence. U.S. v. Johnson, 713 F.2d 633, 651 (11th Cir. 1983). In conclusion, the Secretary determined that the Complainant's claim was not timely.

II.B.2.d.ii. Wrong forum

Where the complainant filed a charge of discrimination with the Equal Employment Opportunity Commission claiming that the respondent violated the Age Discrimination in Employment Act by firing him for a safety-related refusal to drive whereas the respondent did not fire other, younger employees who acted similarly, the EEOC complaint was not asserted under the STAA and thus did not fall within the limited exception allowing equitable tolling of the STAA limitation period where the complainant timely raises the precise claim in issues but mistakenly did so in the wrong forum. Moreover, as recognized in Kelly v. Flav- O-Rich, Inc., 90-STA-14 (Sec'y May 22, 1991), slip op. at 2, the STAA regulation provides that "filing with another agency" is an example "of circumstances which do not justify a tolling of the 180-day period." 29 C.F.R. § 1978.102(d)(3) (emphasis supplied).

Lewis v. McKenzie Tank Lines, Inc., 92-STA-20 (Sec'y Nov. 24, 1992).

II.B.2.d.ii. Ill health as ground for equitable tolling

In cases analogous to the whistleblower provision of the STAA under Title VII and the ADEA, see School Dist. of City of Allentown, 657 F.2d 16, 19 (3d Cir. 1981), the courts have declined to allow equitable tolling for reasons of ill health unless the plaintiff has been adjudicated, or institutionalized, as mentally incompetent. Steward v. Holiday Inn, Inc., 609 F. Supp. 1468, 40 FEP Cases 191, 192 (E.D. La. 1985) (physical and mental incapacity are not an additional category for tolling time limitation); Kerver v. Exxon Prod. Research Co., 40 FEP Cases 1567, 1568 (S.D. Tex. 1986) (no tolling due to plaintiff's psychological impairment resulting from job loss), aff'd, 810 F.2d 196 (5th Cir. 1987); compare Bassett v. Sterling Drug, Inc., 578 F. Supp. 1244, 35 FEP Cases 382, 385 (S.D. Ohio 1984), appeal dismissed, 770 F.2d 165 (6th Cir. 1985) (ADEA time limitation may be tolled during period of adjudication or institutionalization as mentally incompetent).

Thus, in Ellis v. Ray A. Schoppert Trucking, 92- STA-28 (Sec'y Sept. 23, 1992), a complainant's bare assertion that he could not timely file his STAA complaint because he had been under extreme duress, on medication for spinal stenosis, a collapsed disc, and spinal obstruction, and had suffered a severe memory loss in the months after being discharged, did not provide sufficient grounds for equitable tolling. The complainant did not allege that he was mentally incompetent because of his ill health, and he could have had someone (either a lay person or attorney) file a complaint on his behalf.

[STAA Whistleblower Digest II B 2 e]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING BASED ON CONTINUOUS AVAILABILITY OF ALLEGEDLY FALSE REPORT ON CONSUMER DATABASE

In Eubanks v. A.M. Express, Inc. , ARB No. 08-138, ALJ No. 2008-STA-40 (ARB Sept. 24, 2009), the Complainant alleged that he was entitled to equitable tolling of the limitations period for filing a STAA complaint because he was being blacklisted as the result of "DAC" report, which is a report maintained by a consumer reporting agency on commercial truck drivers. The Respondent had reported that the Complainant had a late pick up and delivery, whereas the Complainant maintained that he had never been late except when he could not do so without violating the hours of service regulations. The ARB found that the DAC report by the Respondent was only one adverse action, and the fact that the report is still accessible does not create a continuous violation by the Respondent. Thus, equitable tolling did not apply.

II B 2 e Continuing violation theory; what acts are sufficiently related

In Flor v. United States Department of Energy, 93- TSC-1 (Sec'y Dec. 9, 1994),the Secretary found that the Complainant had filed a timely STAA complaint, and that one of the alleged adverse acts that occurred outside the STAA time limit for filing was nonetheless timely under the continuing violation theory.

The Secretary noted that in analogous ERA cases, the timeliness of a claim may be preserved under the continuing violation theory "where there is an allegation of a course of related discriminatory conduct and the charge is filed within thirty days of the last discriminatory act." For guidance concerning whether alleged discriminatory acts are sufficiently "related" to constitute a course of discriminatory conduct, the Secretary has turned to a case under Title VII of the Civil Rights Act of 1964, Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). The Berry court listed three factors: (1) whether the alleged acts involve the same subject matter, (2) whether the alleged acts are recurring or more in the nature of isolated decisions, and (3) the degree of permanence. 715 F.2d at 981. Concerning the degree of permanence, in English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988), the Court of Appeals held that an ERA complainant must file the complaint within the prescribed 30 days after an alleged discriminatory act if the employer's notice concerning that act was sufficiently "final and unequivocal" in form.

In the instant case, an initial interview concerning an investigation into the Complainant's security clearance occurred more than 180 days prior to the filing of the complaint. The Secretary, found, however, that the initial interview was not a permanent, final action, and that final action did not occur until six months later when the Respondent suspended the Complainant's security clearance. Applying Berry and English, the Secretary found that the interview and the investigation into the Complainant's security clearance involved the same subject matter and were closely connected to suspension of the clearance, an action about which the Complainant timely complained under the STAA.

[ Editor's note: The ALJ had considered the complaint to be primarily a TSCA complaint, and did not discuss the timeliness of a STAA complaint. See Flor v. United States Dept. of Energy, 93-TSC-1 (ALJ Mar. 26, 1993), slip op. at n.1. The Secretary found the existence of a STAA complaint through a liberal interpretation of the complaint.]

TIMELINESS; CONTINUING VIOLATION; DISCRIMINATORY ASSIGNMENTS
[STAA Digest II B 2 e]

Although the Complainant's complaint was filed more than 180 days after his work refusal, the Secretary held in Cook v. Guardian Lubricants, Inc. , 95-STA-43 (Sec'y May 1, 1996), that the continuing violation doctrine made the complaint timely under the STAA employee protection provision because the Complainant was given discriminatory assignments in retaliation for his raising complaints about overweight shipments. Those assignments were less profitable, and directly contributed to the Respondent's eventual termination of Complainant's employment because the truck was not being kept sufficiently busy.

TIMELINESS; CONTINUING VIOLATION; PERFORMANCE RATING GENERALLY CONSIDERED A DISCRETE ACT
[STAA Digest II B 2 e]

A poor performance rating generally is a discrete act which has the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate. In Diaz-Robainas v. Florida Power & Light Co., 92- ERA-10 (Sec'y Jan. 10, 1996), several of the Complainant's complaints about performance appraisals were found to be untimely, and not cognizable under a continuing violation theory.

Nonetheless, the Secretary noted that they were evidence to consider when assessing the true character of other matters occurring within the limitations period.

II B 2 e Summary decision; discovery must be permitted to allow Complainant to establish link for purposes of continuing violation theory

In Flor v. United States Department of Energy, 93- TSC-1 (Sec'y Dec. 9, 1994), the ALJ had recommended dismissal based on his finding that the complaint was not timely filed. The Secretary, however, found that the Complainant had asserted a timely, related STAA complaint. In addition, the Complainant had asserted a continuing violation theory as to certain acts occurring outside the STAA filing period. The Complainant had filed discovery regarding those acts, to which the Respondent had not responded prior to the issuance of the ALJ's recommended order. Because the discovery may have provided a link between those acts and the act timely complained of, the Secretary remanded the case to the ALJ to permit the Complainant to obtain discovery. The Secretary noted that under Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986), the trial judge should make a fact specific inquiry in cases where the plaintiff alleges a continuing violation.

In addition, the Secretary directed the ALJ to consider on remand whether, under the continuing violation theory, the complaint was timely under other alleged environmental whistleblower provisions as to the other acts that occurred more than 30 days prior to filing the complaint. This was important because the Complainant had alleged a TSCA violation, that provides an additional remedy of exemplary damages not provided by the STAA.

[STAA Whistleblower Digest II B 3]
TIMELINESS OF COMPLAINT; ORAL COMPLAINT SUFFICIENT UNDER THE STAA; CREDIBLE TESTIMONY SUFFICIENT TO ESTABLISH THAT PHONE CONVERSATIONS WITH OSHA INCLUDED ALLEGATION OF DISCRIMINATION

In Klosterman v. E.J. Davies, Inc. , ARB No. 08-035, ALJ No. 2007-STA-19 (ARB Sept. 30, 2010), the Complainant testified credibly that he had several phone conversations with OSHA representatives, including complaints of retaliation, within the STAA whistleblower 180 day limitations period. The Respondent argued that a letter the Complainant had written to the DOT did not allege discrimination, and that he did not have any written accounts of his alleged complaints made by phone, and that during part of the limitations period he had been represented by private counsel. However, the ARB agreed with the ALJ that under the STAA and implementing regulations a written complaint is not required, that the phones calls had been made and were valid complaints, and therefore the complaint was timely. See 29 C.F.R. § 1978.102(b) ("No particular form of complaint is required.").

II B 3 Complaint to be construed liberally as to whether cause of action stated

In Vogt v. Atlas Tours, Ltd., 94-STA-1 (Sec'y Apr. 19, 1994), the ALJ had granted Respondent's motion to dismiss based on the contention that complainant had failed to plead a violation of the employee protection provision of the STAA. The Secretary held that Complainant, being pro se, would not be held to the same standards for pleading as if represented by legal counsel. The Secretary examined Complainant's complaint, and construing it liberally; found that it stated a complaint under both the "when" and "because" clauses of the STAA.

[STAA Whistleblower Digest II B 3]
TIMELINESS OF COMPLAINT; OSHA RESPONSE TO VERBAL COMPLAINT

In Harrison v. Roadway Express, Inc. , 1999-STA-37 (ALJ Dec. 16, 1999), Complainant visited an OSHA office within the statutory period for filing a STAA complaint and made an oral complaint. The OSHA official told Complainant that the complaint would not be accepted prior to the exhaustion of CBA grievance-arbitration procedures. Respondent argued that Complainant's visit failed to satisfy the requirements for filing a complaint that OSHA had failed to follow procedures set forth in its Investigator's Manual. The ALJ rejected this argument, finding that Complainant had done everything required to file a complaint. Respondent also complained that it was not put on notice that the allegations of discrimination were made; the ALJ, however, framed the issue as whether Respondent had sufficient notice to prepare for the formal hearing before the ALJ, and concluded that it clearly had.

[STAA Digest II B 3]
FORM OF COMPLAINT; LETTER TO SENATOR

In Ass't Sec'y & Ferguson v. K & P, Inc. , 96-STA-17 (ARB Oct. 30, 1996), the Board held that a letter from Complainant Ferguson on behalf of himself and another complainant to Senator Nunn met the requirements of 29 C.F.R. § 1978.102.

II. B. 3. Complainant not to be treated as formal legal pleading

When OSHA's determination stated that the substance of the Complainant's complaint was that he was forced to drive while fatigued (a section 405(b) claim) but did not refer to retaliation, but the complaint itself clearly made out a section 405(a) claim, and when the Complainant had filed prehearing responses indicating a section 405(a) violation, and when during depositions prior to the hearing the Complainant referred to section 405(a) type claims, and when the transcript of the hearing indicated that the Respondent was not taken by surprise by the section 405(a) claim, was prepared to defend both 405(a) and (b) claims, and in fact did so, there was adequate notice of the 405(a) claim. This is in distinction to Yellow Freight v. artin, 954 F.2d 353 (6th Cir. 1992), in which the notice letter from OSHA referred only to section 405(b) issues, the driver's actual complaint referred only to section 405(b), and there were only small fragments of testimony in a large transcript that could be considered related to section 405(a).

Yellow Freight System, Inc. v. Reich, No. 93-3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS 15585).

II.B.3. Complaint not a formal pleading

A complainant's initial charge is not a formal pleading setting forth legal causes of action which may serve to limit a suit. Richter v. Baldwin Associates , 84-ERA-9 (Sec'y Mar. 12, 1986), slip op. at 9-11. Its purpose is merely to initiate an investigation. A complainant may not have consulted counsel before filing with an agency and may be ignorant of applicable law or of precisely "what constitutes the violation; all the complainant knows is that some adverse action was unfairly taken against him or her." Id. at 10. Upon challenging the investigation findings of the Assistant Secretary of Labor for Occupational Safety & Health, a complainant is accorded an opportunity for de novo hearing of his complaint. 29 C.F.R. § 1978.106.

Smith v. Yellow Freight System, Inc., 91-STA-45 (Sec'y Mar. 10, 1993), slip op. at 15 n.11.

II.B.3. Litigation of issue litigated not specified in the complaint

Where the complaint did not expressly allege a violation of STAA section 405(a), but the complaint had obvious correlation with protected activity under that section and the de novo STAA hearing before the ALJ unmistakably including testimony on that issue, and where the ALJ identified the issue in the recommended Decision and Order and the Respondent did not brief the issue before the Secretary, the Secretary concluded that the Respondent had not been denied timely notice of the section 405(a) aspect of the complaint. Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Sept. 27, 1990) (order denying motion to vacate and reopen).

On review by the Sixth Circuit, the court found that the Secretary had not given adequate notice of a possible section 405(a) issue prior to the hearing. Further, although recognizing that implied consent to litigate an issue may be found where the parties understood evidence presented at a hearing was aimed at an unpleaded issue (something more than inadvertence or evidence relevant both to pleaded and unpleaded issues), the court found that in the instant case there was insufficient evidence to conclude that the Respondent had impliedly consented to litigate the section 405(a) issue. The court, therefore, refused to enforce the Secretary's order and remanded the case. On remand, the Secretary was given the option of re-examining the section 405(a) issue after giving the Respondent proper notice and full and fair opportunity to respond. Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).

The Secretary remanded the case to the ALJ for further proceedings. Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Mar. 13, 1992) (order of remand). On remand, the ALJ conducted a supplemental hearing, but concluded that a section 405(a) issue was not actually present. Moyer v. Yellow Freight System, Inc., 89-STA-7 (ALJ May 24, 1993).

II. B. 3. Complaint not to be treated as formal legal pleading

In determining whether a complainant's complaint states a violation within the jurisdiction of the Department of Labor under the employee protection provision of the STAA, a pro se complainant will not be held to the same standards for pleading as if he or she were represented by counsel. In Vogt v. Atlas Tours, Ltd., 94-STA-1 (Sec'y Apr. 19, 1994), the Complainant complained to a DOL employee, who wrote on a form:

Mr. Vogt drove tour bus load of people and took them to Anchorage airport - finished at 1:30 a.m. - received call from manager requesting he take a group out to Palmer. AK at 7:30 a.m. (same day). Mr. Vogt refused on the basis of not having 8 hour rest period. (He believes 8 hour rest is a DOT requirement).) He was fired that evening.

The Secretary held that the Complainant may have complained about being dispatched to drive without having had enough rest, which could be a way of stating he was too fatigued to take the dispatch. This may constitute protected activity under the "when" and "because" clauses.

In addition, in the request for hearing, the Complainant stated:

After being up for 18 hours (not all of it on duty or driving), the law appears to be blind . . . .

* * *
The law dictates that the "on duty" or "driving" can be stretched over an infinite period of time (in my situation it would have been 31-33 hours).

Based on the complaint and the hearing request, the Secretary found that the Complainant had stated a complaint under both the "when" and "because" clauses. See 49 C.F.R. § 392.3 (prohibiting driving in a fatigued condition).

Thus, the ALJ erred in recommending dismissal for lack of subject matter jurisdiction; the case was remanded for a hearing on the merits.

II. B. 3. Complainant not to be treated as formal legal pleading

Yellow Freight System, Inc. v. Reich, No. 93-3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS 15585).

II B 3 Liberal interpretation of pro se complaint

In Flor v. United States Department of Energy, 93- TSC-1 (Sec'y Dec. 9, 1994), the Secretary concluded that it was appropriate to interpret a pro se complaint as stating a possible STAA whistleblower complaint, where the Complainant, a scientist whose duties including approving work that intelligence communities wished to have performed at two national laboratories, alleged that she disapproved an intelligence community project at the Los Alamos laboratory involving a "highly toxic chemical" because, among other reasons:

the [statement of work] specified that a [Los Alamos National Laboratory] employee could obtain the chemical in the Washington, D.C. area and carry it to Los Alamos, New Mexico. I had reason to believe that Department of Transportation regulations would be violated.

Although, the complaint did not state the means of transporting the toxic chemical, since the Department of Transportation's safety regulations govern transportation of hazardous materials by commercial motor carriers, 49 C.F.R. Part 397, the Secretary found that the Complainant may have stated a complaint under the STAA.

II.B.3. Complaint not to be construed as formal legal pleading

A complainant's initial charge is not a formal pleading setting forth legal causes of action which may serve to limit a suit. See Richter v. Baldwin Associates, 84-ERA-9 et seq. (Sec'y ar. 12, 1986), slip op. at 9-11. Its purpose merely is to initiate an investigation. A complainant may not have consulted counsel before filing with an agency and may be ignorant of applicable law or of precisely "what constitutes the violation; all the complainant knows is that some adverse action was unfairly taken against him or her." Id. at 10. Thus, the ALJ erred in limiting discovery to complainant's claims apparently recorded by the OSHA investigator.

Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Aug. 5, 1992) (order vacating procedural order and directing reassignment).

II B 4 Underlying violation must involve commercial motor vehicle safety

In Foley v. J.C. Maxxwell, Inc., 95-STA-11 (Sec'y July 3, 1995), the Complainant alleged that he was fired because he filed a complaint with OSHA concerning exposure to asphalt fumes, and failed to report to work as directed. The Secretary concluded that the Complainant had not engaged in protected activity under STAA, 49 U.S.C. § 31105(a)(1), which involves commercial motor vehicle safety, but alleged only a potential OSHA violation.

[STAA Digest II B 4]
JURISDICTION; COMPLAINT ABOUT SAFETY ISSUE NOT RAISING MOTOR VEHICLE SAFETY

In Greenhorn v. Arrow Stage Lines ,1997-STA-18 (ALJ Apr. 23, 1998), the ALJ concluded that Complainant's complaint to OSHA about an uncovered oil pit in the floor of Respondent's maintenance area does not qualify as a protected activity under the STAA, as it did not arise under a motor vehicle safety regulation. On review by the ARB, Greenhorn v. Arrow Stage Lines ,1997-STA-18 (ARB Aug. 20, 1998), Complainant argued that the ALJ erred in not accepting the Secretary's preliminary finding of jurisdiction over the oil pit complaint. The ARB noted that the ALJ conducts a de novo hearing and that the preliminary findings are not accorded any weight. The ARB agreed with the ALJ that the report of an uncovered oil pit is not a STAA violation, even if it may be actionable under other statutes.

II B 4 COMPLAINT; LITIGATION OF ISSUES NOT STATED IN ORIGINAL COMPLAINT

In Brown v. Wilson Trucking Corp., 94-STA-54 (ALJ Oct. 2, 1995), the ALJ rejected the Respondent's contention that the hearing should be limited to the one issue stated in the original complaint. The Regional Administrator's report indicated that multiple issues had been considered as part of the investigation, which gave the Respondent adequate notice. The ALJ also noted that due process is not offended if the parties fairly and fully litigated the issue at a hearing.

II.C.1. Prosecution of STAA complaint; DOL not obligated

The Department of Labor is not obliged to prosecute the case on behalf of a complainant under the STAA. See 29 C.F.R. §§ 18.34(f), 1978.103(a), 1978.107(b). Flener v. H.K. Cupp, Inc., 90-STA-42 (Sec'y Oct. 10, 1991).

II.C.2. Deferral to arbitration by Secretary; complainant may continue to litigate

It is permissible for a complainant in a STAA proceeding to continue litigating after the Secretary has deferred to an arbitration outcome. Under the STAA, the complainant can prosecute its complaint regardless of whether the Secretary chooses to do so. Martin v. Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331; 1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992).

II.C.3. Right of Assistant Secretary to file a brief in STAA proceeding where complainant objected to determination

The Office of the Solicitor, Occupational Safety and Health Division, is authorized to litigate cases arising under statutes enforced by the Assistant Secretary. 55 Fed. Reg. 9,033 (Mar. 9, 1990) (par. 5(b)).

Where the Assistant Secretary had earlier deferred to an arbitration proceeding adverse to the complainant, but before the Secretary argued that the earlier deferral had been "premature and inappropriate" and that intervention was now warranted and that it ratified the filing of a brief in his behalf by the Solicitor, the brief would be considered despite respondent's objection that the brief was ultra vires. The Secretary cited 29 C.F.R. § 1978.107(b): "The Assistant Secretary may as of right intervene as a party at any time in [STAA] proceedings . . . ."

Spinner v. Yellow Freight System, Inc., 90-STA-17 (Sec'y May 6, 1992) (order denying motion to strike brief, to disqualify ALJ and strike decisions, and to dismiss proceeding).

[STAA Digest II D 1]
ALJ JURISDICTION; BLACKLISTING THAT OCCURRED AFTER EFFECTIVE DATE OF SETTLEMENT AGREEMENT

In Carter v. Marten Transport, Ltd. , ARB No. 09-117, ALJ No. 2009-STA-31 (ARB July 21, 2011), the Complainant was successful in establishing that his employer (Marten) had violated the STAA whistleblower provision; Marten was ordered to reinstate the Complainant, give him back pay and compensation for emotional distress, and amend his DAC report by deleting unfavorable information and showing only continuous employment. In 2008, the Complainant filed a second STAA complaint alleging that Marten and a commercial service that maintains DAC reports (USIS) blacklisted him by retaining negative information about him in his DAC report. While the matter was before OSHA, Marten and the Complainant entered into a settlement agreement. The agreement did not mention USIS. OSHA approved the settlement, dismissed the complaint against Marten based on the settlement, and dismissed the complaint against USIS based on a finding that it had not been proved that USIS engaged in adverse employment action.

The Complainant objected to the OSHA findings, asserting that Marten had breached the settlement agreement by not paying the monies owed and not correcting his DAC report. The Complainant specified two instances after the settlement was signed in which he lost employment opportunities because of information received about him.

The ALJ found that the settlement before OSHA resolved both the first and second complaints in regard to Marten, and that the settlement included USIS because the settlement expressly dismissed claims against Marten's agents. On appeal, the ARB affirmed in part, but remanded for further proceedings.

Investigatory Settlements

First, the ARB found that, in regard to the "investigatory settlement," the "ALJ's only option was to ascertain whether there had been a settlement approved and signed under § 1978.111(d)(1) and, if so, dismiss such claims [as included in the settlement]." USDOL/OALJ Reporter at 4. The ARB wrote:

With respect to Investigative Agreements, there is no regulatory requirement or authority for the ALJ or the ARB to delve into the validity or reasonableness of a settlement agreement. The ALJ has no legal authority to entertain a repudiation claim as was done in this case. The ALJ has no legal authority to determine whether the parties complied with the terms of a settlement agreement. Once the ALJ was satisfied that the Settlement was approved and signed by the parties, he was required to end the litigation as to the claims resolved by the Agreement. The ALJ should then have moved forward in the administrative process as to the claims against any parties that did not sign the settlement agreement.

USDOL/OALJ Reporter at 5 (footnote omitted).

Finding That USIS Was Marten's Agent

The ARB vacated and remanded the ALJ's dismissal of the complaint against USIS for three reasons. First, the ALJ had not provided a sufficient explanation for the legal and factual basis for the conclusion that USIS was acting as an "agent" within the meaning of the settlement. Second, the issue of agency is of mixed fact and law, and the facts on agency needed to be undisputed to render a summary decision. Third, the ARB found that an ALJ does not have the authority to adjudicate a pure contract dispute - in this case, whether the settlement's inclusion of "agent" applied to USIS. The ARB stated that "because USIS failed to sign the Settlement and because the settlement did not mention USIS, the ALJ must proceed to address Carter's claim against USIS, absent intervention by a court of law." USDOL/OALJ Reporter at 6. On remand, the ALJ was directed to determine whether USIS is a covered respondent under the STAA.

ALJ's Jurisdiction to Consider Potential New Claims Arising After Date of Investigatory Settlement

The ARB also found that the ALJ must determine on remand whether the Complainant's objections to the Secretary's Findings of March 10, 2009 asserted new claims. The Complainant had alluded in his objections to new information provided on March 27, 2009, that Marten was still providing deceptive employment history to prospective motor carrier employers. The ARB noted that the settlement only released Marten from liability for any conduct that occurred prior to the effective date of the settlement, and that new acts occurring after the effective date of the settlement could form the basis for a new complaint. The ARB found that OSHA's had implicitly - if not explicitly - rejected the Complainant's claims of continued false reporting by Marten and USIS when it dismissed the complaints. The ARB found, therefore, that the ALJ had the jurisdiction to decide whether the Complainant had asserted new claims of discrimination that arose subsequent to the settlement.

[STAA Digest II D 1]
AMENDMENT OF COMPLAINT; POST-HEARING REFUSAL TO WORK COMPLAINT DOES NOT RELATE BACK TO A CLAIM UNDER THE COMPLAINT CLAUSE OF THE STAA

In Bethea v. Wallace Trucking Co. , ARB No. 07-057, ALJ No. 2006-STA-23 (ARB Dec. 31, 2007), the Complainant's complaint had asserted protected activity in the raising of concerns about hours of service violations, a fuel leak, and the filing of a workers' compensation claim. During the hearing, the ALJ concluded that accusations of pressure to falsify were within the scope of the complaint, and therefore a permissible amendment to the complaint. The ALJ found, however, that the Complainant's post-hearing complaints about refusing to work were not within the scope of the original complaint, and were untimely raised. On appeal, the ARB noted that it had ruled that a claim for refusing to work under the STAA does not relate back to a claim under the complaint prong of the STAA, and affirmed the ALJ's finding that the refusal to work accusation was not timely.

[STAA Digest II D 1]
AMENDMENT OF COMPLAINT TO INVOKE ADDITIONAL WHISTLEBLOWER PROTECTION LAW; OSHA INVESTIGATION IS A PREREQUISITE

In Coates v. Southeast Milk, Inc. , ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the ARB affirmed the ALJ's denial of the Complainant's motion to amend his whistleblower complaint, which had been filed under the STAA, to invoke the protection of the TSCA because his criticisms of the Respondent included a charge that it had polluted ground water by dumping spoiled milk. The ARB indicated that such a complaint must first be filed with and investigated by OSHA as a prerequisite for a hearing and subsequent appeal.

[STAA Whistleblower Digest II D 1]
TRIAL OF ISSUE BY IMPLIED CONSENT

In Roberts v. Marshall Durbin Co. , ARB Nos. 03-071 and 03-095, ALJ No. 2002-STA-35 (ARB Aug. 6, 2004), the ALJ found the Complainant's protected activities were both internal and external; although the complaint itself alleged only internal complaints, both theories were advanced at the hearing. On appeal, the Respondent argued that the ALJ's finding was a denial of due process. The ARB noted that "[w]hen issues not raised by the pleadings are reasonably within the scope of the original complaint and are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. 29 C.F.R. § 18.5(e)." Slip op. at 9. The ARB analyzed the proceedings before the ALJ, and found that although the complaint did not specifically address safety complaints made to federal officials, the Respondent knew from the opening statement of Complainant's counsel that this theory would be presented, the Respondent made no objection and instead affirmatively defended against that theory by calling a witness (whose testimony was only related to that issue) and by questioning other witnesses. The Board therefore found that the Respondent consented to try the issue and could not now object that it was not timely raised.

[STAA Whistleblower Digest II D 1]
MOTION TO AMEND COMPLAINT TO INCLUDE MORE RECENT EVENTS; ALJ'S LACK OF AUTHORITY TO COMPEL OSHA INVESTIGATION

In Ass't Sec'y & Freeze v. Consolidated Freightways, Inc. , ARB No. 04-128, ALJ No. 2002-STA-4 (ARB Aug. 31, 2005), OSHA had determined that the complaint was untimely. The ALJ agreed, but remanded to OSHA to permit the Complainant to amend the complaint to include allegations based on more recent events. OSHA found in favor of the Complainant based on the amended complaint. The parties agreed that the OSHA findings and order should be made final, and the ALJ issued an order to that effect. The ALJ also later issued an order approving attorney's fees. The ARB construed the ALJ's orders as a recommended decision and order on the merits. The ARB found that it was required to issue the final order, and issued an order to show cause why the ALJ's order should not be approved. The Complainant's counsel responded that it would not be filing a brief and the the Respondent did not respond at all. The ARB affirmed the ALJ's decisions. In a footnote, the ARB stated:

Inasmuch as neither STAA nor its implementing regulations vest ALJs with authority to compel OSHA to conduct investigations, the better course for the ALJ would have been to dismiss the untimely complaint. Freeze could then have filed a new and timely complaint with OSHA that OSHA would have investigated. See 49 U.S.C.A. § 31105(b)(2)(A). OSHA's investigative findings and Preliminary Order could then have become final by operation of law when, as happened here, neither party objected. See 49 U.S.C.A. § 31105(b)(2)(B).

Slip op. at n.3.

II.D.1. Amendments to pleadings - STAA

The ALJ did not err in allowing an amendment to the pleadings to include Mr. Bolin (CEO of respondent Bolin Associates), individually, as a party. The Secretary noted that 29 C.F.R. § 18.5(e) provides, in pertinent part, that the ALJ may allow appropriate amendments upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, where the amendment is reasonably within the scope of the original complaint. In the instant case, Bolin's individual employment decision was specifically challenged in the original complaint. Inasmuch Bolin received notice from the outset and participated in the investigation and all proceedings, the amendment was proper and consistent with cases arising under Rule 15 of the Federal Rules of Civil Procedure to the extent that that rule is applicable pursuant to 29 C.F.R. § 18.1(a). Wilson v. Bolin Associates, Inc., 91-STA- 4 (Sec'y Dec. 30, 1991), citing Barkins v. International Inns, Inc., 825 F.2d 905, 907 (5th Cir. 1987); Itell Capital Corp. v. Cups Coal Co., Inc., 707 F.2d 1253 1258 (11th Cir. 1983); Serrano v. Collazo Torres, 650 F. Supp. 722, 725-29 (D.P.R. 1986).

[STAA Whistleblower Digest II D 1]
AMENDMENT OF COMPLAINT; DISCHARGE DURING HEARING; TRIAL OF ISSUE BY CONSENT

During the hearing in Jackson v. Wyatt Transfer, Inc. , 2000-STA-57 (ALJ Oct. 29, 2003), the parties notified the ALJ that Respondent had discharged Complainant. Complainant alleged that the discharge was in retaliation for protected activity. Considering the seriousness of the employment action, the ALJ broadened the scope of the hearing to include the issue of Complainant's discharge. In his recommended decision, the ALJ noted that despite the lack of notice prior to the administrative hearing, due process is not offended if an agency decides an issue that the parties fully and fairly litigated at the hearing. The ALJ therefore considered the evidence on the discharge, but concluded that Complainant failed to establish his case by a preponderance of the evidence.

[STAA Digest II D 1]
AMENDMENT OF COMPLAINT

In Ass't Sec'y & Haefling v. United Parcel Service , 1998-STA-6 (ALJ ar. 23, 1998), the Prosecuting Party filed an unopposed motion to change the original Preliminary Order to no longer seek temporary reinstatement. The ALJ granted the motion, finding that 29 C.F.R. § 18.5(e) applied to permit an amendment of the complaint once as a matter of right prior to the answer, and thereafter if the ALJ determines that the amendment is reasonably within the scope of the original complaint.

[STAA Digest II D 1]
POST-HEARING AMENDMENT OF COMPLAINT

In Kelley v. Heartland Express, Inc. of Iowa , 1999-STA-29 (ALJ Mar. 24, 2000), Respondent complained that Complainant raised two new instances of "protected activity" for the first time in his post-hearing brief, and because it relied on Complainant's pre-hearing representations, it had not developed evidence at trial relating to these two additional instances, and therefore the additional theories of liability should not be considered. The ALJ recognized that a complainant's initial complaint should not be construed as a formal legal pleading which may serve to limit a suit. Nonetheless, he found that Complainant had referred only to a single protected activity throughout discovery, the pre- hearing statement and at the hearing. The ALJ also found that the additional issues had not been raised and litigated by implied consent of the parties; nor that Complainant had taken the opportunity to amend his complaint in a timely manner. Thus, the ALJ concluded that procedural due process required that only the originally pleaded protected activity be considered at issue.

[STAA Digest II D 1]
AMENDMENT OF COMPLAINT BY PROSECUTING PARTY (OSHA)

In Ass't Sec'y & Haefling v. United Parcel Service , 98-STA-6 (ALJ ar. 23, 1998), the Prosecuting Party (OSHA), filed a motion to amend the Secretary's Findings and Preliminary Order. The one significant change to the findings was that reinstatement was no longer sought for Complainant. The ALJ treated this motion as a motion to amend the complaint pursuant to 29 C.F.R. § 18.5(e), found that the amendment was within the scope of the original complaint, and that the granting of the motion "is necessary to avoid prejudicing the public interest and the rights of the parties." Respondent had earlier filed a verified complaint in federal district court seeking to enjoin the Secretary of Labor from enforcing or proceeding with the directive contained in the Preliminary Order relating to immediate reinstatement of Complainant with backpay and full benefits.

II.D.1 Issue not tried inadvertently; treat as if raised in pleadings

In Kovas v. Morin Transport, Inc., 92-STA-41 (ALJ June 2, 1993), neither the report of the filing of a complaint, nor the Secretary's Findings and Preliminary Order, nor the letter of notification referred to section 2305(a) as a basis for the Complainant's complaint. In fact, the letter of notification notifying the Respondent of the filing of the complaint and the nature of the charges referred specifically to section 2035(b).

The facts of the case, however, had nothing to do with a section 2035(b) violation. Upon review of the parties' responses to the ALJ's prehearing orders, the ALJ determined that the Respondent was aware that the issue involved in the case would fall under the provisions of section 2305(a), and found that the issue had been fully litigated prior to the hearing, and that nothing that occurred at the hearing indicated that the Respondent was not aware of the nature of the issue in the case.

The ALJ found that the section 2035(a) issue was not tried inadvertently by the parties, and therefore it could be treated as having been raised in the pleadings. Citing Fed. R. Civ. P. 15(b); 29 C.F.R. § 18.5(e) and 18.xx(c).

II.D.2. Amendment of complaint to name individuals

In Gagnier v. Steinmann Transportation, Inc., 91- STA-46 (Sec'y July 29, 1992), the ALJ properly allowed the amendment of the complaint to add as parties the individuals who made the termination decision where they had been referenced in the charges set forth in the Complainant's formal complaint, participated in the investigation, and were notified of the proceedings. See Wilson v. Bolin Associates, Inc., 91- STA-4 (Sec'y Dec. 30, 1991).

[STAA Whistleblower Digest II D 2]
AMENDMENT OF COMPLAINT; ADDITION OF PARTIES AT TIME OF HEARING

During the hearing in Griffith v. Atlantic Inland Carrier , 2002-STA-34 (ALJ Oct. 21, 2003), Complainant moved to amend the complaint to add several entities as party-respondents, arguing that they were a family of companies. The ALJ, taking into consideration due process, found that at that late date in the proceedings the rights of the proposed additional party-respondents would be prejudiced if an amendment to the complaint to add party-respondents was permitted.

See also Howick v. Campbell-Ewald Co. , 2003-STA-6 (ALJ Aug. 7, 2003) (holding that it is within an ALJ's discretion to permit a complainant to amend his complaint to add individual respondents but finding, inter alia , that the motion came so late in the proceeding that it would be manifestly unfair to require the named individual to prepare a defense so close to the date of the hearing).

II.D.2. Impeading of individual who took adverse action against complainant

The ALJ did not err in allowing an amendment to the pleadings to include Mr. Bolin (CEO of respondent Bolin Associates), individually, as a party. The Secretary noted that 29 C.F.R. § 18.5(e) provides, in pertinent part, that the ALJ may allow appropriate amendments upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, where the amendment is reasonably within the scope of the original complaint. In the instant case, Bolin's individual employment decision was specifically challenged in the original complaint. Inasmuch Bolin received notice from the outset and participated in the investigation and all proceedings, the amendment was proper and consistent with cases arising under Rule 15 of the Federal Rules of Civil Procedure to the extent that that rule is applicable pursuant to 29 C.F.R. § 18.1(a). Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y Dec. 30, 1991), citing Barkins v. International Inns, Inc., 825 F.2d 905, 907 (5th Cir. 1987); Itell Capital Corp. v. Cups Coal Co., Inc., 707 F.2d 1253, 1258 (11th Cir. 1983); Serrano v. Collazo Torres, 650 F. Supp. 722, 725-29 (D.P.R. 1986).

II.D.3. Second hearing request notice

Where the Regional Administrator of OSHA issued two hearing request notices, one as the result of Respondent's objections to the preliminary order and the second as the result of Complainant's objections which included an objection that a request for payment of back premiums on health and welfare benefits had not been ordered in the preliminary order, the ALJ did not err in requiring Respondent to litigate the back premiums issue in a hearing that had already been set by the time the second notice was issued.

The Secretary held that bifurcated hearings are not conducive to meeting the statutory time limitation for final administrative resolution of section 2305 claims. The Secretary found that Respondent was not denied adequate notice that the premiums issue would be litigated in the original hearing because it had received the RA's second notice at least two weeks before the hearing was scheduled to begin, and was on notice about one week before the hearing that the issue of damages was to be litigated at that hearing.

Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), overruled on other grounds, Roadway Express, Inc. v. Brock , 830 F.2d 179 (11th Cir. 1987).

[STAA Digest II E 1]
MOTION FOR NEW TRIAL; ALJ'S PURPORTED AGGRESSIVE AND INTIMIDATING QUESTIONING OF WITNESSES

In Fleeman v. Nebraska Pork Partners , ARB Nos. 09-059, -096, ALJ No. 2008-STA-15 (ARB May 28, 2010), the Respondent filed a motion for a new trial with the ARB on the ground that the ALJ improperly examined two of the Respondent's witnesses in an aggressive and intimidating manner. Applying FRCP 59(a)(2) and FRCP 60(b), as made applicable by 29 C.F.R. § 18.1(a), the ARB denied the motion. The ARB reviewed the transcript and found that the ALJ's questioning had not been hostile or intimidating. The ARB noted that the ALJ had attempted throughout the hearing to elicit further information and clarify all witnesses' answers, but that his questions appeared to be neutral and even-handed.

II.E.1.
Conduct of hearing; power of ALJ to examine witnesses

An ALJ is fully empowered to examine witnesses in a STAA proceeding. See 29 C.F.R. § 18.29(a)(2).

Spinner v. Yellow Freight System, Inc., 90-STA-17 (Sec'y May 6 1992) (order denying motion to strike brief, to disqualify ALJ and strike decisions, and to dismiss proceeding).

II.E.1. Conduct of hearing; interview of witnesses

The ALJ had properly used "separate" interview procedure in eliciting "simulated employment interview" testimony. The alternative "common" or "group" interview technique would have defeated witness sequestration order and interfered with complainant's opportunity for cross-examination.

Spinner v. Yellow Freight System, Inc., 90-STA-17 (Sec'y May 6, 1992) (order denying motion to strike brief, to disqualify ALJ and strike decisions, and to dismiss proceeding).

II. E. 1. Power of ALJ to examine witnesses

In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994), the Secretary rejected the Respondent's contention that the ALJ demonstrated bias at the hearing by cross-examining Respondent's witnesses "to great lengths." The Secretary noted that the ALJ's questioning was authorized under 20 C.F.R. §§ 18.26, 18.29, 18.614 and 5 U.S.C. § 556. He found that the questioning did not show prejudgment, but an intent to understand the issues and complete the record. He noted that the ALJ also cross-examined the Complainant, and that the Respondent raised no objection at the hearing to the ALJ's examination of its witnesses.

II. E. 1. Power of ALJ to examine witnesses

II.E.2. Authority of ALJ to issue orders

The Secretary may properly delegate its authority to conduct hearing to ALJs. Along with that authority, logically, comes the ability to issue orders. Martin v. Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331; 1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992).

[STAA Whistleblower Digest II E 2]
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].

[STAA Digest II E 3]
ALJ DECISION; ARB INDICATES THAT IT WANTS ALJS TO EXPLICITLY MAKE A FINDING ON COVERAGE, EVEN IF IT IS NOT DISPUTED

In Minne v. Star Air, Inc. , ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the ARB indicated that even if coverage is not disputed and that such is assumed, it would be helpful for the ALJ to so state explicitly in the decision and to state his reasons.

II.E.3. Scope of issues before ALJ

The ALJ should not have raised in his Recommended Decision and Order the issue of whether the complainant was an "employee" under the STAA where the complainant had not had an opportunity to establish coverage because the defense had not been raised below and the record had not been developed on the issue. Because the complainant could not prevail on the merits of his claim, however, the case was not remanded. Mace v. Ona Delivery Systems, Inc., 91-STA-10 (Sec'y Jan. 27, 1992).

II E 3 Consideration by ALJ of issue not investigated by OSHA

In Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995), the Regional Administrator of OSHA had only investigated a section 405(b) refusal to drive violation, and the Respondent argued that the ALJ erred in considering a section 405(a) violation. The Secretary found, however, that the complaint had stated an allegation of a 405(a) violation, and that the ALJ had not erred in considering that section. See Yellow Freight System, Inc. v. Reich, 27 F.3d 1133, 1140 (6th Cir. 1994) (finding that the complaint gave adequate notice of claim of violation of STAA section 405(a) even though OSHA determination letter referred only to section 405(b)).

[STAA Digest II E 4]
DUE PROCESS; ALJ ERRED IN ADJUDICATING, OVER THE OBJECTION OF THE COMPLAINANT, A TERMINATION OF THE COMPLAINANT THAT OCCURRED SHORTLY BEFORE THE HEARING WHERE THE COMPLAINANT DID NOT HAVE ADEQUATE NOTICE THAT THE ISSUE WOULD BE HEARD

In Israel v. Schneider National Carriers, Inc. , ARB No. 06-040, ALJ No. 2005-STA-51 (ARB July 31, 2008), the Complainant filed a complaint with OSHA alleging that the Respondent had harassed and discriminated against him and had removed him from active employment for engaging in whistleblower activities. Shortly before the ALJ hearing, the Respondent terminated the Complainant's employment. The Respondent included evidence concerning the termination in its pre-hearing statement. At the hearing, believing it more efficient to hear the case in whole, the ALJ consolidated the termination with the original complaint filed with OSHA. The Complainant objected on the ground that he was not prepared to address his termination. On appeal that he argued that he was prejudiced by the ALJ's inclusion of his termination in the hearing. The ARB agreed, and remanded for further proceedings. The ARB found that the consolidation of the termination issue violated the Complainant's right to due process, and that the ALJ should have afforded the Complainant proper notice and time to conduct discovery and prepare a case against his termination. The ARB, however, was not convinced that the Complainant was entitled to a re-opening of the record. On remand, the ALJ was directed to conduct an inquiry into what additional discovery or evidence the Complainant would seek if the ALJ were to re-open the record. The ARB stated that the burden would be on the Complainant to put forward facts or witnesses that, if true, could result in a successful legal conclusion; if he could not do this, the ALJ could conclude that the Complainant is not entitled to a hearing and dismiss the case.

II.E.4. Due process

In deciding not to retain an attorney to represent him, a complainant bears the risk that presentation of his claims may be less effective. At the same time, administrative process entitles a pro se complainant to have his case heard. 5 U.S.C. § 554(d). Thus, the Secretary remanded Land v. Consolidated Freightways, 91-STA-28 (Sec'y May 6, 1992), for further proceedings where the complainant was limited to responding to narrow questioning, was not permitted to explain his answers fully, and never was accorded an opportunity to narrate his version of events; several attempts to relate events relevant to a possible STAA complaint were curtailed; exhibits offered by complainant were rejected without complete explanation;complainant was prevented from examining a management employee who was present at the hearing and from conducting direct examination of two other managers as he requested; the Recommended Decision and Order did not address allegations raised by complainant in his post-hearing statement which he attempted to prove at the hearing.

[STAA Digest II E 4]
DUE PROCESS; PRO SE LITIGANT CANNOT SHIFT THE BURDEN OF LITIGATING HIS CASE TO THE COURT

In Hobson v. Combined Transport, Inc. , ARB Nos. 06-016, 06-053, ALJ No. 2005-STA-35 (ARB Jan. 31, 2008), the Respondent was represented at the ALJ hearing by a recruiting manager, who was not an attorney. On appeal, the Respondent contended that the ALJ erred in failing to inform this representative of the Respondent's burden to prove that the Complainant failed to mitigate damages. The ARB rejected this contention, however, because the ALJ had examined the Complainant about his employment search, and directed the representative to address the issue of damages. The representative, however, asked no questions of the Complainant.

The Respondent also contended that the ALJ erred in not informing the company at the outset of the litigation about essential elements of the case, such as the applicable rules of practice, the fact that the OSHA investigatory findings and preliminary order were not part of the record, the company's burden of proof, and the need to order a transcript. The Respondent contended that this failure denied it due process. The ARB found no merit to this contention, finding that a pro se litigant cannot shift the burden of litigating his case to the courts nor avoid the risk attending the decision to forego expert assistance.

[STAA Whistleblower Digest II E 4]
PRO SE LITIGANT; ALJ ACTS PROPERLY IN LIBERALLY CONSTRUING COMPLAINANT'S TESTIMONY AND EVIDENCE IN REGARD TO THEORIES THAT MIGHT SUPPORT THE COMPLAINT

In Coxen v. United Parcel Service , ARB No. 04-093, ALJ No. 2003-STA-13 (ARB Feb. 28, 2006), the Complainant failed to establish that his termination for insubordination was pretext for retaliation against earlier protected activity. Although the Complainant, appearing pro se, did not actually verbalize or make arguments about theories of pretext, "the ALJ acted properly when she liberally construed [the Complainant's] testimony and other evidence and formulated ('theories') regarding pretext." Slip op. at 6 n.19 (citation omitted).

[STAA Digest II E 4]
DUE PROCESS; ALJ ERRS IN MAKING ALTERNATIVE FINDING ON POSSIBLE THEORY OF CASE NOT ACTUALLY TRIED

In Krahn v. United Parcel Service of America, Inc. , ARB No. 04-097, ALJ No. 2003-STA-24 (ARB May 9, 2006), PDF the ARB held that the ALJ erred in making an alternative finding on whether the Complainant had proved that he had engaged in protected activity under section 31105(a)(1)(A) (the "filing of a complaint" provision), where the Complainant had not alleged protected activity under this provision of the STAA, but rather under the "refusal to drive" provisions of section 31105(a)(1)(B). The ARB cited cases holding that due process precludes a decision on STAA provisions not actually tried.

[STAA Whistleblower Digest II E 4]
DUE PROCESS; RESPONDENT MUST BE GIVEN NOTICE OF STAA PROVISION WHICH WAS ALLEGEDLY VIOLATED

Where none of the documents in the record showed a charge of a STAA, 42 U.S.C.A § 31105(a)(1)(B)(i) violation (operation of vehicle in violation of a federal motor vehicle safety regulation), and such a violation was neither raised at the administrative hearing nor tried by express or implied consent, the ARB found that the ALJ's holding that Complainant's refusal to drive was protected under that section was reversible error. Ass't Sec'y & Helgren v. Minnesota Corn Processors, Inc. , ARB No. 01-042, ALJ No. 2000-STA-44 (ARB July 31, 2003) ("Respondents in STAA cases have the right to know the theory on which the agency will proceed.").

See also Wrobel v. Roadway Express, Inc. , ARB No. 01-091, ALJ No. 2000-STA-48, slip op. at n.4 (ARB July 31, 2003) (ARB expressing doubt that a section 31104(a)(1)(B)(ii) complaint should be found to have been brought under this provision where it was not stated in the OSHA complaint or pre-hearing statement; ARB, however, found that determination under this provision by the ALJ was harmless error (if error at all) because, under the facts as found by the ALJ and the ARB, Complainant was not entitled to recovery under this alternative theory).

[STAA Whistleblower Digest II E 4]
FAILURE TO ADMINISTER OATH

In Jackson v. Wyatt Transfer, Inc. , ARB No. 01-076, ALJ No. 2000-STA-57 (ARB Apr. 30, 2003), the ALJ's failure to administer an oath or affirmation to Complainant and to Respondent's president/CEO was such serious error that it required vacating of the Recommended Decision and Order and a remand to the ALJ. The ARB considered caselaw to the effect that where a witness is permitted to testify without being sworn a waiver may be presumed, but found that in the instant case, with both Complainant and Respondent having appeared pro se , there could be no finding of waiver. The Board held " ... where a mandatory requirement that witnesses be sworn exists, but none of the witnesses were sworn, and the party claiming the right was not represented by counsel at the hearing, we will not find default. Thus, on appeal Jackson may raise the issue of the ALJ's failure to swear witnesses at the hearing." The Board, however, did not go so far as holding that the testimony given was void or the R D & O was void, ordering a new hearing, or requiring the appointment of a new judge. Rather, the Board merely directed the ALJ on remand to "remedy the defects ... in a manner he deems proper and efficacious."

[STAA Digest II E 4]
PROCEDURE; ADEQUATE TIME TO OBTAIN ATTORNEY

Where Respondent, who had appeared pro se, requested a new trial asserting for the first time upon review by the Board that he did not have enough time to retain an attorney for the hearing, the Board denied the request because there had been two months between the time Complainant requested a hearing and the date of the hearing was conducted, and because the record did not include that Respondent had sought a postponement of the hearing to seek an attorney. Ass't Sec'y & Ferguson v. K & P, Inc. , 96-STA-17 (ARB Oct. 30, 1996).

II.E.4. Ruling on motions; time allotted

The time frames set out at 29 C.F.R. §§ 18.4 and 18.6 apply under 29 C.F.R. § 1978.106. It is improper for an ALJ to rule on motions without permitting the opposing party an opportunity to respond. Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Oct. 27, 1992) (Order Denying otion to Reconsider), slip op. at n1.

II.E.4. ALJ's abbreviation of hearing

In Green v. Creech Brothers Trucking, 92-STA-4 (Sec'y Dec. 7, 1993), Secretary Reich vacated a decision by Secretary Martin in Complainant's favor, Green v. Creech Brothers Trucking, 92-STA-4 (Sec'y Dec. 9, 1992), remanded a case for submission of further evidence by both Complainant and Respondent. Secretary Reich's Order of Remand was based on Respondent's decision to join Complainant's earlier complaint that he was denied due process at the hearing before the ALJ, and the Assistant Secretary's agreement that the case should be remanded under the circumstances.

[Editor's note: In Secretary Martin's decision it was noted that Complainant contended that the ALJ made it clear that he had to catch a 5:00 pm flight, disallowed closing argument, and caused counsel to abbreviate the taking of testimony. Secretary Martin took this into consideration but ruled in favor of Complainant, apparently mooting Complainant's due process issue. The ALJ had recommended dismissal of the complaint]

II E 4 Summary decision inappropriate when questions of fact exist

In Schuler v. M & P Contracting, Inc., 94-STA- 14 (Sec'y May 4, 1994), the ALJ recommended dismissal based on his finding that the uncontradicted documentary record established that Complainant did not file a timely complaint. The ALJ had issued an order to show cause why the complaint should not be dismissed as untimely, in response to Complainant produced a letter that would have been timely. The ALJ concluded that the letter was a fabrication, and that equitable tolling of the limitations period was not justified.

On review, the Secretary concluded that there were sufficient questions of fact concerning Complainant's filing of a timely complaint with the U.S. Department of Labor, to warrant further development of the evidence and consideration of the issue before the ALJ. The Secretary remanded the case to the ALJ for a hearing on the issue of timeliness and equitable tolling.

II.E.5. Recusal of ALJ

The ALJ properly denied respondent's recusal motion where the ALJ demonstrates no actual bias against respondent nor prejudges facts adversely to respondent's case. The Secretary found that the ALJ had not improperly excluded evidence or precluded parties from protecting the record, and had fully considered objections and had generally given explanations when rejecting objections.

Spinner v. Yellow Freight System, Inc., 90-STA-17 (Sec'y May 6, 1992) (order denying motion to strike brief, to disqualify ALJ and strike decisions, and to dismiss proceeding).

[STAA Whistleblower Digest II E 5]
ALJ BIAS; ELEMENTS FOR ESTABLISHING; JUDICIAL RULING ARE PROPER GROUNDS FOR APPEAL, NOT RECUSAL

In Germann v. Calmat Co. , ARB No. 99 114, ALJ No. 1999 STA 15 (ARB Aug. 1, 2002), Respondent requested that the ARB order a new hearing by a different ALJ because of the alleged prejudicial effect on the ALJ in improperly admitting hearsay and irrelevant evidence. Respondent argued that the inadmissible evidence so adversely affected the ALJ's decision making ability that it was deprived of a fair hearing and decision. The ARB, however, found that the admission of the evidence was harmless error. In addition, it found that the objected to evidence was not so inflammatory as to persuade the ARB that the ALJ had become prejudiced. The ARB then recited the elements necessary for establishing bias:

A party claiming bias must first overcome the presumption of honesty and integrity that accompanies administrative adjudicators. High v. Lockheed Martin Energy Systems, Inc. , ARB No. 98 075, ALJ No. [19]96 CAA 8 (ARB Mar. 13, 2001). In this regard, speculation regarding the potential effect that evidence may have had upon the ALJ standing alone cannot overcome the presumed integrity of an ALJ. Second, a party seeking to establish judicial bias must show the existence of a "significant (and often determinative) 'extrajudicial source' factor." Liteky v. United States , 510 US 540, 554 555 (1994). "[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Id . Additionally, "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep seated favoritism or antagonism that would make fair judgment impossible." Id . Judicial rulings are "proper grounds for appeal, not for recusal." Id . CalMat asserts evidentiary rulings, not significant extrajudicial factors or favoritism, as its basis for contending judicial bias. Its argument, therefore, would also fail under the Liteky criteria.

[STAA Whistleblower Digest II E 5]
MOTION FOR REASSIGNMENT OF ALJ GROUNDED IN MOTION TO RECUSE

In Scott v. J.B. Hunt Transport, Inc. , 2002-STA-1 (ALJ Apr. 19, 2002), the Complainant requested that the Chief ALJ reassign the case to a different ALJ based on the contention that the currently assigned ALJ had shown favoritism toward Respondent. The request was supported by a copy of a motion to recuse and declaration in support of motion earlier filed with the presiding judge. The Chief ALJ denied the motion, holding:

...I find that I have no authority to consider a motion for reassignment of the presiding judge in this case grounded in a motion to recuse. Rather, in the normal case, an allegation of judicial misconduct is documented by the motion to recuse and the ALJ's ruling on the motion, which preserves the matter for review by the Administrative Review Board if raised as a ground for appeal.

[STAA Digest II E 5]
ALJ CONDUCT; APPROACHING RETIREMENT

In Ass't Sec'y & Ferguson v. K & P, Inc. , 96-STA-17 (ARB Oct. 30, 1996), Respondent complained that he was denied a fair trial because the ALJ was "up for retirement". The Board noted that Respondent did not explain how that fact would have improperly affected the ALJ's impartiality.

II.E.5. Standard for removal of ALJ; procedure for allegations of ALJ misconduct

The ALJ in an STAA proceeding issued a recommended decision and forwarded the administrative file to the Secretary. For some reason, a good number of the exhibits were not included in the record, and it appeared that the ALJ may not have considered all of the exhibits in rendering his initial recommended decision. The Secretary remanded for the ALJ to issue a supplemental or amended decision and order reflecting his evaluation of all the evidence in a reconstituted record. The Secretary rejected Respondent's contention that the ALJ was biased and that the matter should be retried before a different ALJ.

In a second remand order, the Secretary stated that remand of a case for a new hearing before a different ALJ is warranted where "the ALJ's conduct [is] so extreme that it deprives the hearing of that fairness and impartiality necessary to that fundamental fairness required by due process." NLRB v. Webb Ford, Inc., 689 F.2d 733, 737 (7th Cir. 1982); accord Tele-Trip Co. v. NLRB, 340 F.2d 575 (4th Cir. 1985). The Secretary found that in the instant case, where no defect in the conduct of the trial was alleged, it would be unnecessarily burdensome and costly to require a new hearing. The missing physical evidence, if it could not be reconstituted for the Secretary's review, could not be duplicated for a new trial. Further, the Secretary found that upon review of the reconstituted record, including the ALJ's recommended decision and order, such bias on the part of the ALJ as to require that the case be reassigned to another ALJ was not present.

In the Secretary's Final Decision and Order, he essentially found that the physical evidence introduced at the hearing but not reconstructed for the record before the Secretary was not necessary for resolution of the complaint -- that all of the evidence was demonstrative and not direct evidence.

Respondent requested an investigation into how the exhibits were lost, why the ALJ did not consider them or refer in his decision to the fact that they were missing, and whether the ALJ was biased and prejudiced against Respondent because it has publicly charged him with bias. The Secretary indicated that these complaints should be addressed to the Chief Administrative Law Judge of the Department of Labor, and cited Procedures for Internal Handling of Complaints of Judicial Misconduct; Establishment of Advisory Committee, 46 Fed. Reg. 28,050 (1981).

See Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Jan. 7, 1986) (order of remand) , Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Apr. 8, 1986) (order of remand); and Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), overruled on other grounds, Roadway Express, Inc. v. Brock , 830 F.2d 179 (11th Cir. 1987).

II. E. 5. Recusal/removal of the ALJ

In Roadway Express, Inc. v. Reich, No. 93-3787 (6th Cir. Aug. 22, 1994) (unpublished) (available at 1994 U.S. App. LEXIS 22924), the Petitioner, Roadway, argued that the Secretary violated 5 U.S.C. § 3105 when she ordered the originally assigned ALJ removed from the case. That section provides in relevant part: "Administrative law judges shall be assigned to cases in rotation so far as practicable[.]" Courts have interpreted this "so far as practicable" language to afford agencies a "modicum of discretion," Tractor Training Serv. v. Federal Trade Comm'n, 227 F.2d 420, 423 (9th Cir. 1955), cert. denied, 350 U.S. 1005, 100 L. Ed. 867, 76 S. Ct. 649 (1956), to depart from the ALJ rotation order. The cases reveal that this discretion is validly exercised when the departure is made to further the interests of administrative efficiency.

See Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128, 139-40, 97 L. Ed. 872, 73 S. Ct. 570 (1953) (the phrase "so far as practicable" allows agencies to consider whether an ALJ is "qualified to handle" a particular case);
Tractor Training Serv. v. Federal Trade Comm'n, 227 F.2d 420, 423 (9th Cir. 1955), cert. denied, 350 U.S. 1005, 100 L. Ed. 867, 76 S. Ct. 649 (1956) ("the interests of economy" supported the FTC's decision to reassign a case from an East Coast hearing examiner to an examiner in Oregon because, it seems, the majority of the witnesses resided in the Portland, Oregon, area);
National Nutritional Foods Association v. Food & Drug Administration, 504 F.2d 761 (2d Cir. 1974) (FDA had ensured that a particular case was assigned to a newly-hired examiner because its only other examiner was "otherwise engaged.");
Aaacon Auto Transport, Inc. v. Interstate Commerce Comm'n, 253 U.S. App. D.C. 202, 792 F.2d 1156, 1163 (D.C. Cir. 1986), cert. denied, 481 U.S. 1048, 95 L. Ed. 2d 834, 107 S. Ct. 2178 (1987) (ICC directed a change of ALJs on remand, because of the original ALJ's "proven inability to cut through Aaacon's dilatory tactics and move the proceedings along[.]").
Note: Although not an issue in the instant case, the court noted that an ALJ also may be removed for bias under 5 U.S.C. § 556(b).

The court found that viewed in light of these cases, the Secretary's decision to remove the ALJ fell within the discretion afforded her by § 3105. The impetus for removal of the ALJ apparently was that she was "particularly disturbed" by his repeated refusal to await the expiration of the usual response period before issuing rulings on Roadway's motions. Thus, the Secretary removed the ALJ not because she simply disagreed with his rulings, but because, like the ALJ in Aaacon, the ALJ had failed to conduct the proceedings in an appropriate manner. In Aaacon, the ALJ's handling of the case was too dilatory; here it was too hasty.

II. E. 5. Recusal/removal of the ALJ

In Roadway Express, Inc. v. Reich, No. 93-3787 (6th Cir. Aug. 22, 1994) (unpublished) (available at 1994 U.S. App. LEXIS 22924), the Petitioner, Roadway, argued that the Secretary violated its due process right to a fair hearing, on the theory that the removal of the ALJ, together with the Secretary's criticism of the ALJ's rulings in favor of Roadway, sent a "strong message" to newly assigned ALJ about the ultimate result that the Secretary thought should be reached in the case.

The court noted that it had recognized that "the due process requirement of a fair trial in a fair tribunal 'applies to administrative agencies which adjudicate as well as to courts.'" Utica Packing Co. v. Block, 781 F.2d 71, 77 (6th Cir. 1986) (quoting Withrow v. Larkin, 421 U.S. 35, 46, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975)). Thus, the due process rights of an administrative litigant are violated when "the risk of unfairness" to that litigant is "intolerably high." Id. at 78. Although the protesting litigant bears the burden of proving the existence of such a risk, id., the litigant need not prove "actual partiality" to carry this burden. Id. at 77.

In Utica Packing, the judicial officer who first rendered the decision was replaced on remand from the Sixth Circuit by the Secretary of Agriculture by a Deputy Assistant Secretary of Agriculture. On review, the Sixth Circuit found that the replacement of the judicial officer violated due process, noting that "there is no guarantee of fairness when the one who appoints a judge has the power to remove the judge before the end of proceedings for rendering a decision which displeases the appointer." Id. at 78.

The court found that the facts in the instant proceeding differed materially from those in Utica Packing because

DOL was not a party to the litigation at issue, and Roadway did not show that the DOL otherwise had some vested interest in the result reached by the ALJ. Thus, there is no basis for concluding that the original ALJ's decisions "displeased" Secretary Martin in the sense in which the Utica Packing court used that term.
The Secretary's removal of the original ALJ and criticism of his rulings posed nowhere near the risk of unfairness that was posed by the replacement of the judicial officer in Utica Packing with USDA's "hand-picked" successor. The DOL Secretary's legal disagreements with the original ALJ were limited to technical, procedural issues that bore no direct relationship to the merits of the case.

The court also rejected Roadway's contention that there is "no doubt" that a strong message was received by the replacement ALJ because he resolved a critical issue of credibility against Roadway by relying on highly equivocal testimony. The court found inadequate evidence that ALJ Lawrence had been cowed by Secretary Martin's earlier actions. The court wrote that "[a] factfinder need not always make credibility determinations in favor of the more categorical witness."

II.E.5. Substitution of presiding ALJ

An Administrative Law Judge may be disqualified upon a showing of personal bias. To establish improper prejudgment, it must appear that the ALJ in some measure adjudged the facts and the law of a case in advance of hearing them. Other factors, such as the complexity of a case and an ALJ's experience and ability, also may bear on the necessity for reassignment. Although the Administrative Procedure Act requires agencies to assign ALJs in rotation to the extent "practicable," 5 U.S.C. § 3105, a "modicum of discretion" is accorded in assignment decisions. Citations omitted.

The Chief ALJ was directed to assign a different ALJ for purposes of conducting a de novo hearing where:

the ALJ had repeatedly ruled on respondent's motions without awaiting expiration of the period permitted for complainant's response, thus denying him an opportunity to be heard, and in all instances the timely responses (but filed after the ALJ's premature rulings) were well-taken and deserved careful consideration.
several of the ALJ's rulings were plainly in error.
the ALJ had not presided at the taking of any evidence at the earlier proceedings.

Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Aug. 5, 1992) (order vacating procedural order and directing reassignment).

II E 5 ALJ's bias; credibility determination

In Nolan v. A.C. Express, 93-STA-38 (Sec'y May 13, 1994), Complainant contended that the ALJ demonstrated impermissible bias when he stated in the recommended decision and order that "Complainant's conduct with respect to Respondent was belligerent and intransigent as was his demeanor at the hearing."

The Secretary held that

Assessing a party's demeanor at a hearing is well within the range of authority of an ALJ. To establish bias, or improper prejudgment, it must appear that the ALJ in some measure adjudged the facts and the law of a case in advance of hearing them. Spearman v. Roadway Express, Inc. , Case No. 92-STA-1, Order Vacating Procedural Orders and Directing Reassignment, August 5, 1992, slip op. at 1; City of Charlottesville, VA v. FERC , 774 F.2d 1205, 1212 (D.C. Cir. 1985), cert. denied , 475 U.S. 1108 (1986). There was no such showing in this case.

Slip op. at 9 n.4.

II.E.5. Bias/incompetence as basis for recusal

In Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Oct. 27, 1992) (Order Denying Motion to Reconsider), the Secretary stated that although bias is a bias for recusal, she premised her earlier order of reassignment of this matter to a different ALJ not on bias but on the ALJ's inadequate handling of the proceedings. The respondent's motion to reconsider was based in part on an argument that bias had not been shown.

II.E.6. Responsibility to afford opportunity for opposing party to respond prior to granting relief requested

It is error to issue an order granting requested relief without giving other parties "reasonable opportunity to state an objection to the motion or request." 29 C.F.R. § 18.6(a). Hester v. Blue Bell Services, 86-STA-11 (Sec'y July 9, 1986).

II.E.6. ALJ must permit opposing party to respond

Where the ALJ recommended dismissal six days after Respondent moved for summary decision, he violated the requirement of Rule 40 of the Rules of Practice and Procedure for Administrative Law Judges that the party opposing a motion for summary decision be afforded 10 days to "serve opposing affidavits or countermove for summary decision." 29 C.F.R. § 18.40(a).

Bowyer v. Roadway Express, Inc., 84-STA-16 (Sec'y Jan. 15, 1985).

[STAA Digest II E 7]
REMANDS; ALJ DOES NOT HAVE THE AUTHORITY TO COMPEL OSHA TO CONDUCT INVESTIGATIONS

In Kerchner v. Grocery Haulers, Inc. , ARB No. 08-066, ALJ No. 2007-STA-41 (ARB June 30, 2010), OSHA had dismissed the blacklisting element of the Complainant's STAA whistleblower complaint on the ground that it was not timely filed. In making this finding, OSHA had identified the potential employer as the Respondent. The ALJ found that it was the Complainant's former employer and a union that were the Respondents rather than the potential employer, and that the blacklisting claim was timely in regard to the former employer. Noting that unlike the SOX and AIR21 regulations, the STAA regulations did not bar a remand to OSHA, the ALJ ordered a remand for an investigation of the merits of the blacklisting claim. The ARB found that the ALJ erred in ordering a remand, noting that it had held in Freeze v. Consolidated Freightways, Inc. , ARB No. 04-128, ALJ No. 2002-STA-4 (ARB Aug. 31, 2005), that "neither STAA nor its implementing regulations vest ALJs with authority to compel OSHA to conduct investigations." Kerchner , USDOL/OALJ Reporter at 4, quoting Freeze , slip op. at 2 n.3.

[STAA Digest II E 7]
REMAND TO OSHA TO INVESTIGATE PORTION OF CLAIM NOT PREVIOUSLY INVESTIGATED; ALJ DID NOT HAVE SUCH REMAND AUTHORITY UNDER OLD STAA REGULATIONS

In Kerchner v. Grocery Haulers, Inc. , ARB No. 08-066, ALJ No. 2007-STA-41 (ARB Mar. 8, 2011), the ARB granted reconsideration of its June 10, 2010 decision which had remanded the matter to the ALJ for a hearing on the Complainant's blacklisting claim, because the ARB had overlooked the fact that the blacklisting claim had already been resolved in a second proceeding. The Board also reissued its June 10, 2001 decision to clarify that its remand order to the ALJ was moot; however, the ARB reiterated that the ALJ had erred in ordering a remand to OSHA of the blacklisting claim because neither the STAA nor the regulations authorized the ALJ to compel OSHA to conduct investigations. Thus, where a complainant has alleged ongoing retaliation after he has filed his initial complaint that OSHA has either failed or refused to consider, the ALJ should afford the complainant the opportunity to submit supplemental pleadings pursuant to 29 C.F.R. § 18.5(e)(2009). The ARB noted that the STAA regulations were later amended to explicitly prevent remands from the ALJ to OSHA in STAA cases. Kerchner v. Grocery Haulers, Inc. , ARB No. 08-066, ALJ No. 2007-STA-41 (ARB June 10, 2010, Revised Mar. 8, 2011).

II.E.7. ALJ Remand

In White v. "Q" Trucking Company, 93-STA- 28 (ALJ Nov. 9, 1993), the ALJ recommended a remand to the Wage and Hour Division for an investigation of whether an additional party was liable as a joint employer and should be joined as a party as required by Rule 19(a) of the Federal Rules of Civil Procedure.

[Editor's note: The ALJ recommended a remand. Could he have remanded directly? Secretarial review will considerably add to the processing time of the proceeding. Why couldn't the ALJ just have joined the party before him since it's a de novo review. Was he thinking of identification of a responsible operator in black lung?]

[STAA Digest II E 7]
REMAND TO OSHA; AUTHORITY OF ALJ; LETTER PRACTICE OF SOLICITOR'S OFFICE

In Fraley v. Transervice Logistics, Inc. , 2005-STA-11 (ALJ June 27, 2005), the ALJ had granted a joint motion to remand to OSHA for further proceedings before that office, and the Regional Solicitor wrote a letter to the ALJ which, in effect, stated that OSHA would ignore the remand on the ground that there was no legal authority for such a remand. The ALJ vacated the remand because the parties had settled the case and submitted the settlement to the ALJ for approval. The ALJ stated that he was vacating the remand because of the settlement and not for the reason stated in the Solicitor's letter, which had cited no authority. The ALJ noted that there was precedent for remands to OSHA and that the ARB routinely remands cases to ALJs even though there is no express authority for such a procedure. As an aside, the ALJ noted that it would have been more proper for the Solicitor to have filed a motion for reconsideration rather than rather than writing the ALJ a letter.

[STAA Digest II.E.7.]
REMAND TO OSHA; OSHA FINDING OF UNTIMELY FILING OVERTURNED, REMAND FOR INVESTIGATION ON MERITS

In Clement v. Milwaukee Transport Services, Inc. , 2000-STA-8 (ALJ Aug. 7, 2000), the ALJ granted the Assistant Secretary for OSHA's motion to remand to OSHA for an investigation of the merits pursuant to 29 C.F.R. § 1978.104, where the ALJ had earlier overturned OSHA's original finding that Complainant's complaint was not timely filed.

[STAA Digest II E 7]
OSHA INVESTIGATION; DISPOSITION OF COMPLAINT WHEN ALJ OVERTURNS OSHA FINDING OF UNTIMELY FILING

In Clement v. Milwaukee Transport Services, Inc. , 2000-STA-8 (ALJ June 20, 2000), OSHA had determined that the complaint was untimely. The ALJ, however, upon consideration of the evidence submitted by Complainant in response to a motion to dismiss, found that the complaint was in fact timely. Respondent thereafter filed a motion to remand for a finding by OSHA on the merits. In response, Complainant requested that an investigation be ordered. The ALJ granted the motion to remand for an investigation as contemplated by 29 C.F.R. 1978.104.

Subsequently, however, the Assistant Secretary filed a motion to intervene and motion to dismiss without prejudice, requesting a withdrawal of the earlier OSHA findings. No objection was filed to this subsequent order, and the ALJ granted the motion to dismiss, noting that the purpose of the dismissal is to all to allow for an investigation, and directing the Assistant Secretary to issue written findings in accordance with 29 C.F.R. 1978.104. Clement v. ilwaukee Transport Services, Inc. , 2000-STA-8 (ALJ Aug. 7, 2000).

II.E.7. Remand to clarify bankruptcy status

In Rowland v. Easy Rest Bedding, Inc., 93-STA-19 (ALJ May 6, 1994), the ALJ remanded the case to the Regional Administrator of OSHA to determine the status of the Respondent where the corporation has filed bankruptcy proceedings and the President of the corporation, also a named respondent, has died, and whether the Complainant wishes to pursue his claim under such circumstances.

II.E.7. Remand to Assistant Secretary

In Arnold v. Associated Sand and Gravel Co., Inc., 92-STA-19 (Sec'y Aug. 31, 1992), the ALJ found that the respondent was covered by the STAA whistleblower provisions even though its trucks crossed state lines only on very rare occasions. The Assistant Secretary had found that the respondent was not covered. The ALJ recommended that the case be remanded to the Assistant Secretary for findings on the merits. The Secretary, analogizing to a decision to defer to the outcome of other proceedings, 29 C.F.R. § 1978.112, found that the Assistant Secretary's decision was tantamount to finding a lack of "reasonable cause to believe that the complaint has merit, 49 U.S.C. app. § 2305(c)(5)(A). Thus, the complainant was entitled to a de novo hearing before an ALJ on all issues raised by his complaint. Accordingly, the Secretary remanded to the ALJ for further proceedings.

II.E.8.. Scope of discretion on remand

[STAA Digest II E 8]
DISCRETION AFFORDED TO ALJ IN DETERMINING WHETHER TO GRANT LEAVE TO REOPEN THE RECORD ON REMAND

In Abdur-Rahman v. DeKalb County , ARB Nos. 12-064, -067, ALJ Nos. 2006-WPC-2 and 3 (ARB Oct. 9, 2014), the ARB had remanded to the ALJ for a decision on damages. On appeal of the ALJ's decision on remand, the Complainants argued that the ALJ erred in denying their request to reopen the record for the limited purpose of adducing evidence relevant to the four years between the March 2007 hearing and the ALJ's 2012 remedies determination, pertinent to compensatory damages for emotional distress and medical expenses. The ALJ had noted that the Complainants' medical conditions had pre-existed their discharge and there was no allegation of exacerbation but only an argument that inability to seek proper treatment due to lack of, or inadequate, health insurance. The ALJ had allowed the post-hearing submission of expenses for medical conditions of record. The ARB determined: "Granting leave to reopen the record is committed to the ALJ's sound discretion. Dalton v. Copart, Inc. , ARB Nos. 04-027, -138; ALJ No. 1999-STA-046 (ARB June 30, 2005). The ALJ's decision to limit the reopening of the record was not an abuse of discretion, and thus we affirm it." USDOL/OALJ Reporter at 7.

[STAA Digest II E 8]
REMAND FOR CONSIDERATION OF DAMAGES; ALJ'S DISCRETION TO DETERMINE WHETHER ADDITIONAL HEARING REQUIRED

In Michaud v. BSP Transport, Inc. , 95-STA-29 (ARB Oct. 9, 1997), the ALJ had canceled a scheduled hearing on remand for a determination of damages when Complainant asked the ALJ to resolve the damages issue on the existing record. The ALJ canceled the hearing prior to the time Respondent should have had to respond to Complainant's request. The ARB held that this was harmless error because the remand order had not explicitly required the ALJ to hold a second hearing to resolve the issue of damages, the existing record contained sufficient evidence to reasonably make a damage award, and Respondent had ample opportunity to present its evidence regarding the damages in the initial hearing.

II.E.9. Timeliness of decision

[STAA Digest II E 9]
ALJ’S ISSUANCE OF DECISION 17 MONTHS AFTER THE EVIDENTIARY HEARING FOUND NOT BE AN ABUSE OF DISCRETION; NEITHER OALJ RULES NOR STAA REGULATIONS IMPOSE TIME LIMITATION FOR ISSUANCE OF ALJ DECISION

In Hood v. R&M Pro Transport, LLC , ARB No. 15-010, ALJ No. 2012-STA-36 (ARB Dec. 4, 2015), the Respondents’ argued that they were prejudiced by the ALJ’s issuance of his decision approximately seventeen months after the hearing. The ARB found that neither the OALJ regulations, nor the STAA regulations, provide for a time limitation for an ALJ’s decision, and held that the ALJ had not abused his discretion. The ARB noted 29 C.F.R. 18.92, which states that “[a]t the conclusion of the proceeding, the judge must issue a written decision and order.” and 29 C.F.R. 18.12(b)(8), which gives the ALJ “all powers necessary to conduct fair and impartial proceedings, including . . . to . . . [i]ssue decisions and orders.”

II.F. Party's request for extension to file a brief before the Secretary is a waiver of the 120-day decisional deadline

In Stiles v. J.B. Hunt Transportation, Inc., 92- STA-34 (Sec'y Sept. 24, 1993), the Secretary held that by requesting an extension of time to file a brief before the Secretary, Complainant waived the 120-day decisional deadline at 29 C.F.R. § 1978.109(c)(1).

[STAA Digest II F]
ARB REVIEW; PARTIES LACK OF PARTICIPATION

In Wyatt v. Cawood Manufacturing Co., Inc. , ARB No.00-037, ALJ No. 2000-STA-5 (ARB Mar. 20, 2000), Tripp v. Con-Way Southern Express , ARB No. 00-019, ALJ No. 1999-STA-43 (ARB Feb. 29, 2000), Korolev v. Sunland Distribution, Inc. , ARB No. 00-010, ALJ No. 1999-STA-28 (ALJ Jan. 11, 2000), Howell v. Yellow Freight System, Inc. , ARB No. 00-011, ALJ No. 1999-STA-32 (ALJ Jan. 11, 2000), and Porter v. OTRX, Inc. , ARB No. 00-005, ALJ No. 1999-STA-35 (ALJ Jan. 11, 2000), the ALJ had issued a recommended decision, an order of dismissal, or an order approving settlement. Pursuant to 29 C.F.R. §109(c)(2) (1997), the Board issued a briefing schedule and the parties were invited to submit briefs in support of or in opposition to the ALJ's decision. Because neither party submitted briefs, the Board adopted the ALJ's decision and issued a Notice of Case Closing.

TIME PERIOD FOR ISSUANCE OF SECRETARY'S FINAL DECISION AND ORDER; TOLLING
[STAA Digest II F]

Although 29 C.F.R. § 1978.109(c) provides that a final decision and order will be issued by the Secretary in the STAA whistleblower proceeding within 120 days after issuance of the decision and order of the ALJ, the Secretary in Caimano v. Brink's, Incorporated, 95-STA-4, slip op. at 2 n.1 (Sec'y Jan. 26, 1996), held that the time period was tolled where the decision had been issued expeditiously, but beyond the 120 day period, where during the interim between issuance of the ALJ's decision and the Secretary's decision there had been a 17 day suspension of operations by the Department of Labor and four days of closure due to blizzard conditions in Washington D.C.

II.F. 120 days for Secretary's decision

Four employees refused to drive the company's trucks during a hazardous ice storm. Employer paid the drivers their regular compensation for the trip, but refused to pay for their overnight layover. Employees filed complaints with the Secretary of Labor arguing that Employer violated section 405(b) of STAA. Employer argued that because the Secretary issued her final decision more than 120 days after the conclusion of the evidentiary hearing, the drivers lose their rights to assert their discrimination claim. The court held that the regulatory time restrictions in STAA directory and not jurisdictional in nature. The court recognized the need for expeditious consideration and disposition of complaints under the STAA, but did not find that Employer suffered any prejudice as a result of the Secretary's two day delay. Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066-67 (5th Cir. 1991).

II.F 120 Day time limitation for Secretary's decision

In Long v. Roadway Express, Inc., 88-STA-31 (Sec'y ar. 9. 1990), the Secretary issued a Final Decision and Order 122 days after the conclusion of the hearing. The Respondent argued that since the regulations provide for the issuance of a Secretary's decision within 120 days, the decision was untimely and therefore, not appropriate for the ALJ's Decision and Order on Remand. Additionally, Respondent contended that it was prejudiced by the delay.

The Secretary held that the time constraint's of section 2305 are directory in nature and "[f]failure to meet these requirements does not invalidate the action by the ... Secretary. The Secretary noted that in analogous situations, Federal courts have upheld the Secretary of Labor's construction of time limits as "directory" rather than "mandatory" since the Secretary's interpretations are entitled to great weight and are controlling if reasonable. Marshall v. N.L. Industries, Inc., 618.F.2d 1220, 1224 (7th Cir. 1980). Finding that interpreting the time limit provision as directory "clearly serves the remedial purposes of [OSHA]," id. , and that the employer had failed to establish that it had been prejudiced by the Secretary's failure to meet the statutory time limit, the court held that the statutory limit did not bar the action.

In Long, the Secretary found that the Respondent had not established prejudice by the two day delay and held that the prior Final Decision and Order was therefore appropriate.

[STAA Digest II G 1]
ALJ�S RECOMMENDED DECISION ON THE MERITS, BUT RESERVING ISSUE OF DAMAGES, IS NOT YET RIPE FOR ARB REVIEW

In Minne v. Star Air, Inc. , ARB No. 08-131, ALJ No. 2004-STA-26 (ARB Dec. 31, 2008), the ALJ had issued a recommended decision on the merits in a remand proceeding, but had reserved the issue of damages. This recommended decision included a notice of review stating that the decision and Administrative File would be automatically forwarded for review to the ARB. The ARB issued a briefing order. The ALJ then issued an erratum stating that the Notice of Review was in error and that the Decision had not been intended to be an appealable order as it did not dispose of the entire complaint. In view of the erratum, the ARB agreed that the matter was not yet ripe for ARB review and dismissed the appeal.

II G 1 Supplemental decision and order permissible

In Ass't Sec'y & Dougherty v. Bjarne Skjetne, Jr. d/b/a Bud's Bus Service, 94-STA-17 (Sec'y Mar. 16, 1995), the ALJ had withheld issuing a recommended order regarding payment to one of the two Complainants, because that Complainant had not submitted proper employment documentation (the ALJ did determine a period of back wages of two months). The Secretary did not disapprove this procedure, but indicated in his Decision and Order that should the ALJ issued a supplemental order within 30 days of the date of the Secretary's decision and order, it would be considered as a new recommended decision and order.

II.G.1. ALJ decisions in STAA are recommended

ALJ decisions in STAA cases are "recommended" decisions. Although 29 C.F.R. § 1978.109 does not label them as such, that section requires that the final decision and order be issued by the Secretary, 29 C.F.R. § 1978.109(c), and stays all portions of the ALJ's order (except for an order of reinstatement) "pending review by the Secretary." 29 C.F.R. § 1978.109(b). Under the Administrative Procedure Act, 5 U.S.C. § 557(b), a decision which does not become final without further agency proceedings is a "recommended" decision.

The fact that the ALJ's order of reinstatement is immediately effective does not cloak the ALJ's decision with finality. Such an order serves the same purpose as the Secretary's preliminary order of reinstatement issued prior to the hearing -- namely, to temporarily protect the employee pending completion of the review process.

Moravec v. HC & M Transportation, Inc., 90-STA- 44 (Sec'y Jan. 6, 1992).

[Editor's note: Despite the language of this case that all decisions in STAA cases are "recommended," the Secretary has indicated that a order dismissing a STAA proceeding based on withdrawal by the complainant is a final order. See, e.g., Shown v. Wilson Truck Corp., 92-STA-6 (Sec'y Apr. 30, 1992) (citing 29 C.F.R. § 1978.111(c); ALJ had issued a recommended order of dismissal).]

II G 2 Revised recommended order not permissible

In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y ar. 16, 1995), the Secretary held that an ALJ does not have the authority to issue a revised recommended order concerning the same issues covered by an earlier recommended decision pending before the Secretary. In Dutile , the ALJ had revised the recommended award of benefits based on a motion to reconsider.

Based on the inability to ascertain the exact amount of benefits due based on the record before the Secretary, however, the matter was remanded for a reopening of the record.

[STAA Digest II G 2]
SETTLEMENTS; AUTOMATIC REVIEW PROCEDURE ENUNCIATED BY ARB APPEARS TO HAVE OVERRULED, SUB SILENTIO, EARLIER AUTHORITY OF THE SECRETARY OF LABOR

In Fraley v. Transervice Logistics, Inc. , 2005-STA-11 (ALJ June 28, 2005), the ALJ issued a Decision and Order Recommending Approval of Settlement Agreement. The ALJ observed that the ARB had ruled that such ALJ orders are subject to the automatic review provisions of the STAA and the STAA regulations, but that such rulings seemed to have overruled, sub silentio , the Secretary of Labor's holdings in Shown v. Wilson Truck Corp ., 1992-STA-6 (Sec'y Apr. 20, 1992) and Creech v. Salem Carriers, Inc. , 1988-STA-29 (Sec'y Sept. 27, 1988).

STIPULATION OF ISSUES NOT SETTLEMENT; ARB MUST ISSUE FINAL ORDER
[STAA Digest II G 2]

In Caimano v. Brink's, Inc. , 95-STA-4 (ARB Aug. 14, 1996), the Secretary had remanded the matter to the ALJ for a recommendation on Complainant's "complete and specific remedy." On remand, the ALJ issued an "Order Affirming Settlement". The Board noted that the ALJ's order did not dispose of the matter because the agreement entered into by the parties was merely a joint stipulation concerning the Complainant's remedy. One of the stipulations entered into by the parties was that if the Secretary's decision was reversed on appeal and all appellate remedies had been exhausted, the other stipulations regarding the remedy would have no force or effect.

II G 2 Settlement on remand

In Earwood v. Dart Container Corp. of Georgia , 93- STA-16 (ALJ Apr. 26, 1995), the ALJ approved a settlement concerning costs and expenses. Although the case was on remand from the Secretary, the ALJ concluded that he had the authority to render a final decision in the matter. See 29 C.F.R. § 1978.111(d)(2).

In a similar situation in Nolan v. AC Express , 92- STA-37 (ALJ Apr. 24, 1995), however, the ALJ concluded that given the prior litigation in the matter, she would forward the matter to the Secretary for issuance of a final decision on the settlement. The ALJ thoroughly reviewed the settlement in a recommended decision. The Secretary thereafter issued an order approving the settlement. Nolan v. AC Express, 92- STA-37 (Sec'y June 28, 1995). The Secretary stated that either the ALJ or the Secretary has the authority to approve the settlement of STAA complaint, but then rather than adopting the ALJ's recommended order, reviewed the settlement de novo.

II G 2

As to the finality of an ALJ's order regarding a settlement, see X A 3 .

II.G.3. Withdrawal of complaint; ALJ should reinstate and affirm Assistant Secretary's findings; order is final

The STAA regulations at 29 C.F.R. § 1978.111(c) provide that if a party files a written withdrawal of his objections, "[t]he judge or the Secretary, as the case may be, shall affirm any portion of the findings or preliminary order with respect to which the objection was withdrawn." Where the complainant filed a letter with the ALJ withdrawing his "complaint," this letter constituted a withdrawal of his objections, see Snow v. TNT Red Star Express, Inc., 91-STA-44 (Sec'y Mar. 13, 1992), slip op. at 2-3, and the ALJ should have affirmed the preliminary findings, by which the order of dismissal would have become the final administrative order in the case. Because the ALJ issued a Recommended Order of Dismissal, the Secretary, in the interest of administrative efficiency, treated complainant's withdrawal as occurring before her, reinstated and affirmed the Assistant Secretary's findings, and "denied" the complaint. Shown v. Wilson Truck Corp., 92-STA-6 (Sec'y Apr. 30, 1992).

II.G.3. Withdrawal of STAA complaint before ALJ

Since neither the STAA nor the implementing regulations at 29 C.F.R. Part 1978 (1987) provide for the withdrawal of complaints by an individual complainant, it is error to allow a complainant to withdraw his complaint and order dismissal of the complaint. Rather, section 1987.111(c) permits a party to withdraw objections to the Secretary's preliminary findings or preliminary order at any time before the findings or order become final. When such withdrawal occurs before the ALJ or the Secretary, it is required that an order be issued affirming "any portion of the findings or preliminary order with respect to which the objections was withdrawn." 29 C.F.R. 1987.111(c). If the case is before the ALJ, the ALJ's order becomes the final administrative order in the case, and there is no need for Secretarial review of the ALJ's order. Underwood v. Blue Springs Hatchery, 87-STA-21 (Sec'y Sept. 23, 1987) (order to show cause).

Creech v. Salem Carriers, Inc., 88-STA-29 (Sec'y Sept. 27, 1988).

II.G.3. ALJ's order is final

Where prior to the scheduled hearing Complainant submitted a letter withdrawing his request for a hearing and his complaint under the STAA, the ALJ noted that pursuant to 29 C.F.R. § 1978.111(c), the withdrawal had the effect of affirming the Regional Administrator's finding the complaint lacked merit and dismissal of the complaint. The Office of Administrative Appeals issued a Notice of Case Closing advising the parties "that the case is closed pursuant to the ALJ's final order." Hall v. Yellow Freight Systems, 93-STA-24 (Sec'y July 1, 1993).

II.G.4. Finality of ALJ dismissal

In Yocum v. National Steel & Tube Distributors, Inc., 89-STA-19 (ALJ May 7, 1993), the ALJ dismissed the case based on failure to prosecute and abandonment of the request for a hearing by the Complainant. In Yocum, two prior hearing had been scheduled by different ALJs. The first hearing was rescheduled because no representative for the Respondent attended. The Complainant failed to appear at the second hearing, and his response to the ALJ's order to show cause was that the Respondent was in bankruptcy. The case was continued on March 1, 1991. On April 19, 1993, a third ALJ issued an order to show cause why the claim should not be dismissed. The ALJ's attempts to contact the Complainant by certified mail were unsuccessful, and based on the Complainant's failure to attend the second scheduled hearing, the failure to maintain contact with the OALJ, and the failure to respond to the final order to show cause, the ALJ dismissed pursuant to 29 C.F.R. § 18.39(b) and Rule 41(b) of the Federal Rules of Civil Procedure (as made applicable by 29 C.F.R. § 18.1).

In Yocum v. National Steel & Tube Distributors, Inc., 89-STA-19 (Sec'y July 1, 1993) (notice of case closing), the Office of Administrative Appeals stated that the ALJ's decision was final, citing 29 C.F.R. § 18.39(b).

II.G.4. Failure to appear or participate, finality of ALJ's order

In an STAA case where the ALJ found that Complainant and his counsel did not appear for a scheduled hearing, did not maintain contact with the ALJ's office, and did not respond to the ALJ's order to show cause why the complaint should not be dismissed, the ALJ's decision was final. See 18 C.F.R. § 18.39(b). Yocum v. National Steel & Tube Distributors, Inc., 89-STA-19 (Sec'y July 1, 1993).

[STAA Digest II H]
SCOPE OF ARB JURISDICTION; JURISDICTION OVER STAA COMPLAINT DOES NOT PROVIDE THE ARB JURISDICTION OVER COMPLAINTS ARISING UNDER THE JURISDICTION OF OTHER AGENCIES; SUCH MATTERS, HOWEVER, MAY PROVIDE RELEVANT EVIDENCE REGARDING MOTIVE

In Coates v. Southeast Milk, Inc. , ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the ARB rejected the Complainant's contention that once the ARB gained jurisdiction over his STAA complaint, it also gained jurisdiction over all of the complaints he lodged against the Respondent, such as unlawful interference with First Amendment rights, the right to engage in concerted activities under the FLRA, and so forth. The Board observed that, other than the STAA complaint, the determination of whether the other complaints had merit was within the jurisdiction of other agencies, and that the Complainant was "simply wrong" that the ARB's jurisdiction over the STAA complaint gave it jurisdiction over the other complaints. The ARB, however, noted that to the extent that evidence of other interactions with the Respondent shed light on the Respondent's reasons for firing the Complainant, they were relevant to the issue of motive.

[STAA Whistleblower Digest II H 1]
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.

II H 1 Mootness doctrine

Petitioner had reprimanded an employee for engaging in a protected activity. Although the verbal warning was removed from the employee's record one year later and would not be considered in any future disciplinary actions, the Secretary found the controversy "capable of repetition, yet evading review," and that Petitioner had violated the employee protection provision of the STAA.

The Sixth Circuit identified an exception to mootness in limited situations when 1) the challenged action is too short to be fully litigated prior to its cessation or expiration, and 2) there is a reasonable expectation that the same complaining party would be subjected to the same action again. The court found insufficient evidence to substantially support a reasonable expectation that the action would recur. Because the issue was moot and unlikely to recur, the court remanded the case with instructions to vacate the Secretary's final order and to dismiss the complaint.

Thomas Sysco Food Services v. Martin, 983 F.2d 60 (6th Cir. 1993).

II.H.1. Complaint Rendered Moot by Employer's Internal Personnel Procedures Making it Impossible for Alleged Action to Adversely Affect Complainant May, Nonetheless, Be Adjudicated

Complainant, a truck driver, was issued a verbal warning for missing a workday in violation of the employer's attendance policy. The cause of complainant's absence was a medical condition and advice from his physician not to operate a motor vehicle. This was found to be protected activity. Nonetheless, at the time of the hearing, the nature of the employer's attendance policy rendered the verbal warning and unexcused work absence expunged from complainant's work record. Since no adverse consequences resulted from the employer's adverse action, the ALJ dismissed the complaint as failing to present a case or controversy and, therefore, moot.

Observing that the constitutional "case or controversy" requirement did not bind the administrative agency forum, the Secretary concluded that the matter should be adjudicated, notwithstanding the arguably moot nature of the case. It was determined that the case presented facts "capable of repetition, yet evading review". Finding it appropriate to settle any uncertainty in potential future cases, the Secretary entered an order on the merits, finding in favor of complainant. Curless v. Thomas Sysco Food Service, 91-STA-12 (Sec'y Sept. 3, 1991).

II.H.1. Authority of the Department of Labor to rule on moot controversies

In Thomas Sysco Food Services v. Martin, 1993 U.S. App. LEXIS 239 (6th Cir. 1993), the court reversed the Secretary's decision in Curless v. Thomas Sysco Food Service, 91-STA-12 (Sec'y Sept. 3, 1991), which had rejected the finding of the ALJ that no case or controversy existed.

In Curless , the Complainant received a verbal warning for absence from work, which was later removed from his personnel file and could not be used as the basis for any subsequent disciplinary action. The ALJ noted that all the relief to which the Complainant was entitled had been awarded prior to the convening of the evidentiary hearing, and that this was not a case in which the "capable of repetition, yet evading review" exception to the mootness doctrine applied, because any subsequent repetitions would not evade review. Curless v. Thomas Sysco Food Service, 91-STA-12 (ALJ May 7, 1991), slip op. at 8-9.

The Secretary concluded that administrative agencies are not bound by the "case or controversy" restrictions imposed on Article III courts, and decided the case on the merits because the Respondent's absenteeism policy was ongoing. Sec'y slip op. at 4-7.

The Sixth Circuit found that the Secretary's conclusion that there was a reasonable expectation that the action may recur was not supported by substantial evidence.

[Editor's note: The Sixth Circuit did not focus on whether case or controversy restrictions apply to agency adjudications.]

II.H.1. Authority of agency to rule on moot issue; ongoing policy of employer

"Administrative [proceedings are] not bound by the constitutional requirement of a 'case or controversy' that limits the authority of article III courts to rule on moot issues." Climax Molybdenum Co. v Secretary of Labor, 703 F.2d 447, 451 (10th Cir 1983).

An agency, may within its discretion, issue a declaratory order to remove uncertainty so long as it is properly guided by the policies underlying the article III case or controversy requirement. In the article III context, jurisdiction on the ground that a dispute is "capable of repetition, yet evading review" commonly vests where (1) the challenged action is too short in duration to be litigated fully prior to its expiration and (2) there is a reasonable expectation that the action complained of will be repeated. Thus, where an employers absenteeism scheme penalizes an employee by giving him a warning in his file for refusing to work in spite of the fact that the refusal constitutes protected activity, and where that policy is ongoing such that it can reasonably be expected that the employer will be subject to similar proceedings in the future, then, even when the employer has expurgated complainant's record of the warning, the case need not be dismissed for mootness.

Curless v. Thomas Sysco Food Serv., 91-STA-12 (Sec'y Sept. 3, 1991).

II H 2 Deferral to findings of Assistant Secretary

See Division III C .

II H 3 Adverse action taken after complaint filed

In Nolan v. A.C. Express, 93-STA-38 (Sec'y May 13, 1994), the Secretary indicated that an adverse action taken against the complainant after the filing of the complaint was not at issue.
Slip op. at 3 n.1.

[STAA Digest II H 4]
SUBSTANTIAL EVIDENCE REVIEW; IF SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ�S DECISION, THE ARB MUST AFFIRM EVEN IF IT MAY HAVE DECIDED THE MATTER DIFFERENTLY

In Clark v. Hamilton Hauling, LLC , ARB No. 13-023, ALJ No. 2011-STA-7 (ARB May 29, 2014), the Complainant reported problems with his assigned truck and was told to take the truck to a repair shop over the weekend. When arriving for work on Monday, the Complainant found that a cracked windshield, and possibly other repairs, had not been made. The Complainant notified his boss, who told him to drive the truck. After experiencing difficulty driving the truck, the Complainant took the truck to a state inspection station. While at the inspection station, the Complainant's boss arrived and they exchanged hostile words. The state inspector asked the Complainant to leave. The inspector found several problems with the truck. The truck was repaired and back in service the next day without the newly assigned driver reporting any problems. In the meantime, the Complainant's boss called the Complainant and left a voicemail message. The Complainant did not respond and did not return to work. The ALJ found that the Complainant established that he engaged in protected activity under the STAA, but that he did not establish that he suffered adverse action. Specifically, the ALJ found that the voicemail message informed the Complainant that a safe truck would be provided and that the driver would be welcomed back to work. On appeal, the Complainant argued that the facts showed that his boss fired him, that he was constructively discharged because his boss told him to drive or be fired, that his boss physically threatened him such that a reasonable person would have felt compelled to resign, and that the employee who drove the truck after the repairs were made was not a credible witness. The ARB found no merit to these arguments and affirmed the ALJ's findings. The ARB stated that although it may have decided the case differently, substantial evidence supported the ALJ's finding. The ARB explained substantial evidence review:

[I]n conducting our review, we must uphold an ALJ's findings of fact to the extent they are supported by substantial evidence, even if there is also substantial evidence for the other party, and even if we justifiably disagree with the finding. Bobreski v. J. Givoo Consultants , ARB No. 09-057, ALJ No. 2008-ERA-003, slip op. at 8 (ARB June 24, 2011). Substantial evidence is evidence that a reasonable person might accept to support a conclusion. Id . "[T]he determination of whether substantial evidence supports [an] ALJ's decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it really constitutes mere conclusion." Id . (internal quotations and citations omitted). "A determination whether evidence is substantial on the record considered as a whole must �take into account whatever in the record fairly detracts from its weight.�" Id . (quoting Universal Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951)). "�A single piece of evidence will not satisfy the substantiality test if the [adjudicator] ignores, or fails to resolve, a conflict created by countervailing evidence.�" Id . (quoting Dorf v. Bowen , 794 F.2d 896, 901 (3d Cir. 1986)).

USDOL/OALJ Reporter at 4-5. The ARB found that the ALJ had properly resolved conflicts in witness testimony, and had committed no reversible legal error. The ARB declined to reweigh the evidence. One member of the ARB dissented, noting holdings to the effect that when an employer's conduct creates ambiguity and confusion about the employee's status, the test of whether there has been a discharge "depends on the reasonable inferences that the employee could draw from the statements or conduct of the employer." USDOL/OALJ Reporter at 6 (citations omitted). This member disputed the deductions made by the ALJ about the import of the voicemail message, and found that the case presented a situation where the Employer had not made a clear statement about the Complainant's employment status � that the Complainant would have reasonably believed that he had been fired � and that because of the ambiguity created by the Employer's actions, the Respondent had the burden to prove that the Complainant had not been fired.

[STAA Digest II H 4]
APPEAL TO ARB; DEFAULT AGAINST NON-APPEALING PARTY FOR FAILURE TO RESPOND TO APPEAL IS NOT APPROPRIATE; NON-APPEALING PARTY IS NOT OBLIGATED TO FILE RESPONSE

In Israel v. Branrich, Inc. , ARB No. 09-069, ALJ No. 2008-STA-1 (ARB May 26, 2011), the Respondent informed the ARB that the company had ceased operations and formally dissolved, and the ARB issued an order to show cause why the Board should not dismiss the appeal. The Complainant argued that default sanctions should awarded against the Respondent because it had failed to file a brief responding to the Complainant's petition for review by the ARB, citing the OALJ rule of practice and procedure at 29 C.F.R. § 18.5(b). The ARB found that the OALJ rule was inapplicable to the appellate proceeding, and that - because the Complainant had lost his case before the ALJ and was the appealing party - it was the Complainant who had the burden to prove his arguments on appeal. The Respondent did not carry such a burden and was not required to respond to the Complainant's appeal.

Because the Complainant provided no argument or legal discussion concerning maintaining an appeal against a dissolved company, and even pro se litigants must develop arguments with citation to authority, the ARB dismissed the appeal.

[STAA Digest II H 4]
SCOPE OF ARB REVIEW; IN STAA CASES, ARB IS REQUIRED TO EXAMINE ALJ'S DECISION EVEN IF THE PARTIES DO NOT FILE APPELLATE BRIEFS OR FILE BRIEFS THAT DO NOT IDENTIFY THE DISPOSITIVE LEGAL ISSUES

In Minne v. Star Air, Inc. , ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the ARB wrote:

The regulations implementing the STAA require us to review every ALJ decision issued under Section 109(a), even if no party files a brief.� Thus, these regulations require us to examine the ALJ's decision even if the parties either do not file briefs upon appeal or file briefs that do not identify the dispositive legal issues.� In examining the ALJ's decision, we review his legal conclusions de novo, and his factual findings under the substantial evidence standard.

USDOL/OALJ Reporter at 7-8 (footnotes omitted).

[STAA Digest II H 4]
HEARSAY; ARB REVIEWS ALJ'S ADMISSION OR EXCLUSION OF HEARSAY UNDER A STANDARD OF "DE NOVO" REVIEW FOR AN "ABUSE OF DISCRETION"

In Wainscott v. Pavco Trucking, Inc. , ARB No. 05-089, ALJ No. 2004-STA-54 (ARB Oct. 31, 2007), the Complainant objected to the admission of a customer bill of lading and a cylinder tank check-in control on the ground, inter alia, that a proper foundation had not been laid because the Respondents' operations manager did not have first-hand knowledge, and because the information was allegedly irrelevant and contradictory.�� The ARB noted that the STAA regulations specify that the OALJ Rules of Practice at 29 C.F.R. Part 18 apply, and stated that under those rules hearsay is inadmissible.� However, the ARB stated that it conducts de novo review for an abuse of discretion of an ALJ's decision to admit or exclude hearsay evidence.� Because the operations manager identified and described the two documents, and explained that he was in charge of them, the ARB found that he was qualified to establish the foundation for their admission, citing 29 C.F.R. § 18.803(6) (excepting records maintained "in the course of a regularly conducted business activity" from the general rule against admission of hearsay evidence).� The documents were also relevant to the issue of whether the Complainant was hauling HAZMAT materials when he left his trailer in an unauthorized location.

[STAA Whistleblower Digest II H 4]
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).

[STAA Whistleblower Digest II H 4]
ARB STANDARD OF REVIEW; ALJ'S DISCOVERY SANCTION REVIEWED UNDER ABUSE OF DISCRETION STANDARD

An ALJ's imposition of discovery sanctions is reviewed by the ARB under an abuse of discretion standard in an STAA whistleblower appeal. Cefalu v. Roadway Express, Inc. , ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB Jan. 31, 2006).

II.H.4. Prior to interim rules, Secretary's review was de novo

In Waters v. Transport, Inc., 84-STA-8 (Sec'y Oct. 24, 1984), Respondent contended that once an ALJ issues a decision in an STAA case, the Secretary must accept it if it is supported by substantial evidence, is not irrational, and is in accordance with law. The Secretary stated that the Administrative Procedure Act, 5 U.S.C. § 557 provides that "[o]n appeal from or review of the initial decision, the agency has all powers which it would have in making the initial decision except as it may limit the issues on notice or by rule." Thus, not having limited the issues by notice or by rule, the Secretary concluded that he had the authority to conduct a de novo review of all issues raised in the proceeding.

[Editor's note: Interim final rules to govern STAA whistleblower cases were not published in the Federal Register until November 21, 1986. Final rules were not published until November 25, 1988. Those rules provided that the ALJ's order of reinstatement was effective immediately, but all other portions of the ALJ's order are stayed pending the Secretary's review. The ALJ's findings of fact are conclusive if supported by substantial evidence on the record considered as a whole. See 53 Fed. Reg. 47676 (Nov. 25, 1988)]

[STAA Digest II H 4]
ARB BRIEFING REQUIREMENTS; DISCRETION TO CONSIDER UNTIMELY BRIEF; COMPLAINANT "OVER THE ROAD" WHEN ALJ DECISION SERVED

In Forrest v. Dallas and Mavis Specialized Carrier Co. , ARB No. 04-052, ALJ No. 2003-STA-53 (ARB July 29, 2005), the ARB exercised its discretion to consider the pro se Complainant's untimely brief where he did not receive the ALJ's recommended decision in a timely manner because the Complainant was working "over the road" at the time the ALJ's decision was served.

[STAA Whistleblower Digest II H 4]
PRO SE LITIGANT; ASSISTANCE FROM THE TRIBUNAL IS NECESSARILY LIMITED

In explaining how it would afford liberal construction in the review an appeal of a pro se complainant in a STAA whistleblower complaint, the ARB nevertheless stated in a footnote:

We recognize that while adjudicators must accord a pro se complainant "fair and equal treatment, [such a complainant] cannot generally be permitted to shift the burden of litigating his case to the [adjudicator], nor to avoid the risks of failure that attend his decision to forgo expert assistance." Griffith v. Wackenhut Corp. , ARB No. 98-067, ALJ No. 97-ERA-52, slip op. at 10 n.7 (ARB Feb. 29, 2000), quoting Dozier v. Ford Motor Co. , 707 F.2d 1189, 1194 (D.C. Cir. 1983). Affording a pro se complainant undue assistance in developing a record would compromise the role of the adjudicator in the adversary system. See Young , slip op. at 9, citing Jessica Case, Note: Pro Se Litigants at the Summary Judgment Stage: Is Ignorance of the Law an Excuse? , 90 KY. L. J. 701 (2002).

Cummings v. USA Truck, Inc. , ARB No. 04-043, ALJ No. 2003-STA-47 (ARB Apr. 26, 2005).

[STAA Whistleblower Digest II H 4]
DISMISSAL FOR CAUSE; STANDARD OF REVIEW BY ARB

On reviewing an ALJ's dismissal of a STAA complaint made in accordance with FRCP Rule 41(b) for failure to prosecute or to comply with the federal rules or any order of the court, the ARB uses an abuse of discretion standard in contrast to the substantial evidence standard of review for an ALJ's factual determinations and de novo standard of review for ALJ's conclusions of law. Howick v. Campbell-Ewald Co. , ARB Nos. 03-156 and 04-065, ALJ Nos. 2003-STA-6 and 2004-STA-7 (ARB Nov. 30, 2004).

[STAA Whistleblower Digest II H 4]
JURISDICTION OF ARB TO CONSIDER A PETITION FOR MANDAMUS

In Somerson v. Eagle Express Lines Inc. , ARB No. 04-046, ALJ No. 2004-STA-12 (ARB May 28, 2004), the Complainant sought a writ of mandamus from the ARB based on the contention that OALJ had refused to hold a hearing on his STAA complaint and was violating his and his counsel's First Amendment rights. The ARB ordered the Complainant to show cause why the petition should not be dismissed for lack of jurisdiction. The Complainant's response was to argue that OALJ was violating a statutorily mandated deadline. The ARB found that this response confused the basis for the request for a writ of mandamus with the issue of the Board's jurisdiction to consider such a petition. Based on the failure of the Complainant to show cause (and not deciding whether the ARB had the authority to issue a Writ of Mandamus), the ARB denied the motion. The ARB also denied a motion to compel OALJ to cease and desist from violating First Amendment rights because the Complainant had failed to establish the ARB's authority to issue such a writ in the absence of a decision by an ALJ.

[Editor's note: The scheduling of a hearing on the merits of the Complainant's STAA complaint had been stayed pending a section 18.34(g) hearing on the qualifications of his counsel].

[STAA Whistleblower Digest II H 4]
ADMINISTRATIVE REVIEW BOARD; REVISION OF DELEGATION

On October 17, 2002, the Office of the Secretary published Secretary's Order 1-2002, addressing the delegation of authority and assignment of responsibility to the Administrative Review Board. 67 Fed. Reg. 64272 (Oct. 17, 2002). This Order replaces Secretary's Order 02-96, and provides modifications including, an increase in the total membership to a maximum of five members, clarifications of procedural authority, and codification of the ARB's location in DOL organizational structure.

[STAA Digest II H 4]
STANDARD OF REVIEW

The following is an excerpt from Scott v. Roadway Express, Inc. , ARB No. 99-013, ALJ No. 1998-STA-8 @ 8 (ARB July 28, 1999) (case citations omitted):

"Pursuant to the regulation implementing the STAA at 29 C.F.R. §1978.109(c)(3) (1998), if the factual findings rendered by the ALJ are supported by substantial evidence on the record considered as a whole, the Administrative Review Board is bound by those findings.

Pursuant to the Administrative Procedure Act, in reviewing the ALJ's conclusions of law, the Board, as the designee of the Secretary, acts with "all the powers [the Secretary] would have in making the initial decision. . . ." 5 U.S.C. §557(b), . . .; see 29 C.F.R. §1978.109(b) (1998). Accordingly, the Board reviews the ALJ's conclusions of law de novo ."

To the same effect: Schulman v. Clean Harbors Environmental Services, Inc. , ARB No. 99-015, ALJ No. 1998-STA-24 (ARB Oct. 18, 1999)

II H 4 CREDIBILITY; ALJ'S OPPORTUNITY TO OBSERVE DEMEANOR

The ALJ is in the best position to evaluate the demeanor of witnesses, since he or she sees them in person and hears them testify. Where the ALJ's credibility determinations are based on a fair reading of the record and are supported by an "articulate, cogent, and reliable analysis," the Secretary will accept them. Williams v. Southern Coaches, Inc., 94-STA-44 (Sec'y Sept. 11, 1995).

II.H.4. Standard of review

In Palmer v. Western Truck Manpower, 85-STA-6 (Sec'y Jan. 16, 1987), the Secretary announced that he would use a "substantial evidence" and "in accordance with law" standard of review for all cases covered under then newly promulgated regulations. See 51 Fed. Reg. 42091 (1986) (See § 1978.109(c)(3); regulations were effective December 22, 1986).

Where the standard of review of an ALJ decision is whether the findings of fact are supported by substantial evidence in the record as a whole, the ALJ's credibility determinations will not be disturbed by the reviewing authority unless they "conflict with a clear preponderance of the evidence" or "are 'inherently incredible and patently unreasonable.'" Cordero v. Triple A Machine Shop, 580 F.2d 1331, 1335 (9th Cir. 1978).

[STAA Whistleblower Digest II H 4 a]
SUBSTANTIAL EVIDENCE STANDARD OF REVIEW; REMAND WHERE ALJ EMPLOYED THE WRONG BURDENS OF PROOF

In Warren v. Custom Organics , ARB No. 10-092, ALJ No. 2009-STA-30 (ARB Feb. 29, 2012), the ARB found that although it is bound by the substantial evidence standard of review of the ALJ's findings of fact, grounds for reversal of such findings may exist where the ALJ applied the wrong legal standard in reaching those findings. In Warren , the ALJ had applied the burdens of proof applicable to STAA whistleblower cases prior to the 2007 amendments to the STAA as part of the 9/11 Commission Act. The 2007 amendments reduced the burden of proof for complainants and raised it for employers. Because the ARB could not ascertain whether the ALJ definitely resolved certain conflicting evidence and factual inconsistencies due to employing the incorrect legal standard, the ARB remanded to the ALJ to make specific factual findings under the proper burden of proof standard.

II.H.4.a. Standard of review of ALJ's determinations

In Surface Transportation Assistance Act proceedings, the Secretary is required to consider conclusive the administrative law judge's factual findings if supported by substantial evidence. Roadway Express, Inc. v. Dole, 929 F.2d 1060,1063 (5th Cir. 1991) (citing 29 C.F.R. § 1978.109(c)(3)).

[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.

[STAA Whistleblower Digest II H 4 a]
SUBSTANTIAL EVIDENCE

In Dalton v. U.S. Dept. of Labor , 2003 WL 356780 (10th Cir. Feb, 19, 2003) (unpublished) (case below Dalton v. Copart , ARB No. 01�020, ALJ No. 1999-STA-46)), the 10th Circuit reversed the ARB's order dismissing Complainant's STAA complaint, where the court found that substantial evidence supported dispositive findings by the ALJ, see 29 C.F.R. § 1978.209(c)(3) -- specifically, Complainant's "reasonable apprehension" of serious injury with respect to cables attached to winches on the hauler. The ALJ's findings were based largely on credibility determinations, and the court faulted the ARB for not explaining why it was necessary for the ALJ to have credited certain witnesses. Although there was strong impeaching evidence in the record in regard to Complainant's subjective fear of danger from the condition of the cables, the court found that it was not so damning as to overwhelm other evidence in his favor.

[STAA Whistleblower Digest II H 4 a]
SUBSTANTIAL EVIDENCE STANDARD OF REVIEW OF ALJ'S FINDINGS OF FACT

In Dalton v. Copart, Inc. , ARB No. 01-020, ALJ No. 1999-STA-46 (ARB July 19, 2001), the ALJ found that Complainant had refused to drive his truck because he had a reasonable apprehension that to do so would cause serious injury to himself or to the public. Upon review, the ARB reversed, largely based on a very different view of the facts, despite the substantial evidence level of review of the ALJ's factual findings in a STAA case. Applying a reasonable person standard to the STAA work refusal based on a reasonable apprehension of accident, injury or serious impairment to health provision at section 31105(a)(2), the ARB found that substantial evidence did not support the ALJ's findings of fact. In this regard, the Board stated:

In so ruling, we are mindful that the substantial evidence standard of review places a heavy burden upon us. This Board is not free to engage in an independent evaluation of the facts. "If there [is] substantial evidence [in the record] to support the ALJ's findings," it would constitute reversible error for this Board to fail to treat them as conclusive. Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995). Accord Brink's Inc. v. Herman, 148 F.3d 175, 178 (2d Cir. 1998). However, the substantial evidence standard does not require us to affirm the ALJ's findings of fact merely because there is evidence in the record which would justify them, without taking into account other contrary evidence in the record. Rather, as the Supreme Court held in Universal Camera v. NLRB , 340 U.S. 474, 488 (1951), "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." With these principles in mind we evaluate all the evidence in the record with regard to the reasonableness of Dalton's apprehension of serious injury.

Slip op. at 7-8 (footnote omitted). Essentially, the ARB found that Complainant's fears were either uninformed or not credible.

[STAA Digest II H 4 a]
SUBSTANTIAL EVIDENCE; ALJ'S FINDINGS OF FACT CONCLUSIVE IF SUPPORTED BY SUBSTANTIAL EVIDENCE

In United Parcel Service, Inc. v. Administrative Review Board , 1998 WL 739812 (6th Cir. Oct. 6, 1998)(unpublished)(case below 1994-STA-16), the Sixth Circuit found that although a Department of Labor regulation (29 C.F.R. § 1978.109(c)(3)) required the Secretary to accept the ALJ's factual findings as conclusive if supported by substantial evidence, Secretary Reich simply ignored the ALJ's key findings. The Sixth Circuit examined the record and pointed out a number of critical findings of the ALJ, supported by substantial evidence, that had been ignored by the Secretary, such as his finding that Complainant was not a credible witness, Respondent's witnesses were credible, Complainant's behavior was subject to discharge without prior notice, and most importantly, Complainant failed to establish that his discharge was for any reason other than his own dishonesty.

[STAA Digest II H 4 a]
SUBSTANTIAL EVIDENCE; ALJ'S FINDINGS OF FACT CONCLUSIVE IF SUPPORTED BY SUBSTANTIAL EVIDENCE

In BSP Trans, Inc. v. USDOL , 1998 WL 754697 (1st Cir. Nov. 3, 1998)(case below 1995-STA-29), the First Circuit found, after reviewing the record in its entirety, that the ALJ 's finding that there was no connection between Complainant's alleged complaints about violations of the DOT regulations and his termination from employment, was supported by substantial evidence and was therefore conclusive. Thus, the court set aside the ARB's decision that had made "corrected" findings. The court in particular noted that the ALJ had found that not a single witness had corroborated Complainant's testimony, while three of Respondent's witnesses each testified that DOT regulations never came up in their conversations with Complainant. The court noted that, while a reasonable mind could have believed Complainant but not the other witnesses, the ALJ had the advantage of seeing and hearing the witnesses. The court noted that the ARB drew a contrary inference from one factor about the case, but found that the possible inference was "scarcely so apparent as to permit the Board to reject, on a cold record and its own speculation, the ALJ's credibility determinations."

[STAA Digest II H 4 a]
SUBSTANTIAL EVIDENCE STANDARD OF REVIEW

In Jackson v. Protein Express , 95-STA-38 (ALJ Mar. 9, 1998), the ALJ explicitly noted in his recommended decision on remand that the ARB had ignored his credibility findings that all witnesses had been credible except Complainant. On review, in Jackson v. Protein Express , 95-STA-38 @ 2 (ARB May 29, 1998), Respondent argued that the ARB's remand order should be reversed because the ARB had failed to treat the ALJ's findings of fact as conclusive as required by 29 C.F.R. § 1978.109(c)(3). The ARB treated Respondent's argument as a motion for reconsideration, and held that it had not misapplied the regulation because "there were two crucial points in the original recommended decision of the ALJ on which he either did not make a specific finding or with respect to which he did not apply the appropriate legal test."

[STAA Digest II H 4 a]
FINDINGS OF FACT; ALJ'S FINDINGS CONCLUSIVE IF SUPPORTED BY SUBSTANTIAL EVIDENCE

In Brink's, Inc. v. Herman , No. 96-4162 (2d Cir. June 25, 1998) (available at 1998 WL 337259)(case below 95-STA-4), the Second Circuit reviewed the Department of Labor STAA whistleblower regulations at 29 C.F.R. § 1978.109(c)(3), and found that if there was substantial evidence to support the ALJ's findings, the Secretary of Labor's refusal to treat them as conclusive was contrary to that regulation. The court noted that this is so even if the Secretary's decision was also based on substantial evidence.

The court found that the ALJ's finding that there was no meaningful relationship between Complainant's complaints at a "speak-out" session and his termination was fully supported by the record of the hearing. The Secretary had asserted that the ALJ had failed to address the "complaint clause" issue, and therefore had to make his own findings. The court, however, found that although the ALJ had not expressly referred to the complaint clause, he had considered directly the question that arises under this clause -- whether Complainant was fired because of the complaints he had made. The court, therefore, vacated the Secretary's findings, and directed entry of an order based on the ALJ's "well-supported findings...."

The court also reversed the Secretary in regard to findings made by the ALJ under the "because" clause of the "work refusal" provision of the STAA, holding that substantial evidence supported the ALJ's finding that, at least following Respondent's offer to cure the matter complained about, Complainant's safety concern was not objectively reasonable. The court similarly reversed the Secretary in regard to another because clause issue.

II.H.4.a. Weight of ALJ's factual findings

In a STAA whistleblower case, the ALJ's factual findings are conclusive if they are supported by substantial evidence on the record considered as a whole. Taylor v. Broadhead, 91-STA-14 (Sec'y Feb. 11, 1992).

II.H.4.a. ALJ's findings must be supported by "substantial" evidence

In Perez v. Guthmiller Trucking Co., Inc., 87-STA- 13, (Sec'y Dec. 7, 1988), the Secretary held that in order to be credited, the ALJ's findings must be supported by substantial evidence. Citing NLRB v. Columbian Enameling and Stamping Co., 306 U.S. 300, the Secretary defined substantial evidence as:

more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Consolidated Edison Co. v. National Labor Relations Board , supra , p. 229, and it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. See Baltimore & Ohio R. Co. v. Groeger , 266 U.S. 521, 524; Gunning v. Cooley 281 U.S. 80, 94; Appalachian Electric Power Co. v. National Labor Relations Board, supra, 989.

306 U.S. at 300.

II.H.4.a. Adequacy of ALJ's findings

Where the ALJ's findings are adequately explained, are not irrational or contradicted by undisputed evidence, the Secretary will not overturn them. See, e.g., Guernsey v. J.E. Nelson Transportation, 91-STA-24 (Sec'y July 20, 1992), slip op. at 5. Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992), slip op. at 3.

II.H.4.a. Deference according ALJ credibility findings; demeanor v. aspects of testimony

In Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Oct. 21, 1993), the Secretary rejected the ALJ's credibility finding regarding one of Respondent's primary witnesses.

The Secretary noted that there is a distinction between credibility findings that are based explicitly on demeanor and those based on aspects of the testimony itself, e.g., internal inconsistency, inherent improbability, important discrepancies, impeachment, witness self-interest. Demeanor based finding "may" be accorded exceptional weight by a reviewing court. A judge's incantation of "lack of candor" does not render his or her credibility finding unassailable where it is conclusory.

The Secretary then found evidence supporting Complainant's version of the events, concluded that Complainant's testimony was unwavering and specific, and found that the ALJ's credibility finding was not supported by substantial evidence.

II.H.4.a. Complainant's testimony alone is insufficient to support ALJ's finding that an unsafe condition existed

In Perez v. Guthmiller Trucking Company, Inc., 87- STA-13 (Sec'y Dec. 7, 1988), the Complainant's employment with the Respondent was terminated after the Complainant walked off the job. The Complainant testified that he walked off the job because of the unsafe condition of the truck. The ALJ credited the Complainant's testimony over that of the Respondent's witnesses, who stated that the truck was in safe driving condition and furthermore claimed that the Complainant quit his job as he walked off the job site.

The Secretary determined that the ALJ erred in finding the presence of an unsafe condition based upon the Complainant's testimony which was unsupported by a driver vehicle inspection record and contradicted by specific findings of a DOT inspection report.

[However, it is not necessary for the Complainant to show that the dangerous condition existed, only that he had a reasonable belief that the condition existed]

II.H.4.a. ALJ's findings, if supported by substantial evidence, are conclusive

In an STAA whistleblower case, where the findings of the ALJ are supported by substantial evidence, they are conclusive, 29 C.F.R. § 1978.109(c)(3), and the Secretary will adopt them. See Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992), slip op. at 1-2.

II.H.4.a. Burden of proof; STAA cases

Although the Administrative Law Judge did not explicitly analyze the issues in terms of the applicable burdens of proof, his findings supported the conclusion that complainant established a prima facie case of retaliatory discharge and respondent-employer failed to articulate a legitimate, nondiscriminatory reason for its action. Resnikoff v. Albaugh Truck Line Inc., 91-STA-19 (Sec'y June 28, 1991), citing McGavock v. Elbar, Inc., 86-STA-5 (Sec'y July 9, 1986) for the applicable burden of proof in STAA, 49 U.S.C. app. § 2305 cases.

II.H.4.a. ALJ may not discount testimony without stating reasons

In Lajoie v. Environmental Management Systems, Inc., 90-STA-31 (Sec'y Oct. 27, 1992), slip op. at 9, the Secretary rejected, as not supported by substantial evidence, the ALJ's finding that the complainant had voluntarily quit his employment. The Secretary cited several cases in which a judge's wholesale discounting of testimony was found improper where it was conclusory or contrary to other evidence of record. See Dorf v. Bowen, 794 F.2d 896, 901-2 (3d Cir. 1986); Kent v. Schweiker, 710 F.2d 110, 116 (3d Cir. 1983).

II.H.4.a. Deferral to ALJ's findings; when appropriate

Where an ALJ's findings are adequately explained, are not irrational or contradicted by undisputed evidence, the Secretary will not overturn them. Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992) (citing Guernsey v. J.E. Nelson Transportation, 91-STA-24 (Sec'y July 20, 1992).

[STAA Whistleblower Digest II H 4 b]
ARB MAY AFFIRM ALJ DECISION DESPITE ALJ'S APPLICATION OF THE WRONG BURDEN OF PROOF WHERE THE RESULT WOULD BE THE SAME UNDER THE CORRECT BURDEN OF PROOF

In Canter v. Maverick Transportation, LLC , ARB No. 11-012, ALJ No. 2009-STA-54 (ARB June 27, 2012), the ARB affirmed the ALJ's determination that the Respondent retaliated against the Complainant in violation of the STAA where there was compelling testimony that the Complainant's refusal to drive was protected activity because to do so would have violated DOT regulations and because the Complainant had a reasonable apprehension that driving the truck could result in serious injury to himself and others in part because he knew there was a chaffing brake hose and a steering fluid leak. Although the ALJ analyzed the complaint under the burdens of proof applicable to complaints filed prior to the 2007 amendments to the STAA, the ARB found that the error was harmless because the 2007 STAA amendments introduced a lesser burden of proof for complainants ("contributing factor" rather than "discriminatory purpose" or "motivating factor") and a higher burden of proof for respondents ("clear and convincing" rather than "preponderance of the evidence"). The ARB wrote:

"In the review of judicial proceedings, the rule is settled that if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason." Helvering v. Gowan , 302 U.S. 238, 245 (1937). Since in this case the ALJ's findings of fact are supported by substantial evidence, and the 2007 STAA amendment employs a lesser burden of proof for complainants and a higher burden of proof for employers, the result would be no different even had the ALJ employed the correct legal standard. See Knight v. Mills , 836 F.2d 659, 661 n.3 (1st Cir. 1987) ("It is proper for an appellate court to affirm a correct decision of a lower court even when that decision is based on an inappropriate ground."); Sagebrush Rebellion, Inc. v. Hodel , 790 F.2d 760, 765 (9th Cir. 1986) (agency may rely on harmless error rule when its mistake does not affect the result).

USDOL/OALJ Reporter at n.5.

[STAA Digest II H 4 b]
SCOPE OF ARB REVIEW; ALJ'S FINDING ON EXISTENCE OF ADVERSE ACTION IS A LEGAL CONCLUSION WHICH THE ARB REVIEWS DE NOVO

In Minne v. Star Air, Inc. , ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the Respondent argued that the ALJ's determination that no adverse action had taken place was a factual determination that the ARB should not disturb because it was supported by substantial evidence.� The ARB disagreed, holding that a finding on whether there had been adverse action was a legal conclusion subject to de novo review by the ARB.

II.H.4.b. Secretary may find violation only in regard to complaints about which the respondent has had sufficient opportunity to present evidence

Where the letter from OSHA notifying the respondent of the complainant's complaint referred only to a discharge in retaliation for not operating his vehicle because of illness (a section 405(b) issue), the complainant's complaint did not indicate that he was complaining that the respondent discharged him for testifying at a safety-related hearing (a section 405(a) issue), OSHA's findings after the preliminary investigation characterized the complaint in terms of a section 405(b) issue, and the complainant's objections to the preliminary finding set forth only a section 405(b) issue, and under the facts of the case the respondent could not be found to have impliedly consented to litigate the issue at the administrative hearing, the Secretary denied the respondent due process in finding a violation of section 405(a) and refusing to reopen the administrative hearing to allow evidence on the section 405(a) issue. Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).

[STAA Whistleblower Digest II H 4 b]
ARB STANDARD OF REVIEW OF ALJ'S DETERMINATION THAT COMPLAINANT FAILED TO STATE A CLAIM UPON WHICH RELIEF BE GRANTED IS DE NOVO

In Moore v. U.S. Dept. of Energy , ARB No. 99-094, ALJ No. 1999-CAA-14 (ARB July 31, 2001), the ARB held that a determination that a complainant has failed to state a claim upon which relief can be granted is a legal conclusion. The Board then noted that under the STAA the ARB reviews an ALJ's legal conclusions de novo .

[STAA Whistleblower Digest II H 4 b]
DECLARATORY ORDER; AUTHORITY OF ARB TO ISSUE

In Ass't Sec'y & Bates v. West Bank Containers , ARB No. 99-055, ALJ No. 1998-STA-30 (ARB Apr. 28, 2000), the ARB decided on substantial evidence review that Complainant could not succeed on the merits because Respondent had a legitimate business motive for terminating Complainant's employment. Nonetheless, it proceeded to address whether Complainant had engaged in protected activity, citing 5 U.S.C. §554(e), for the proposition that an agency may issue a declaratory order to terminate a controversy or remove uncertainty. The ARB indicated that the "[t]he sole purpose of th[e] discussion [of whether the Complainant engaged in protected activity] is to clarify the process by which OSHA can legitimately express and invoke deference to its interpretive views of §405(a)(1)(A) during an enforcement proceeding."

II H 4 b Application of harmless error standard under 29 C.F.R. § 18.103

In Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Aug. 21, 1995), the Secretary applied the harmless error rule of 29 C.F.R. § 18.103 in reviewing the ALJ's decision not to admit certain evidence.

II.H.4.b. The ALJ Failed to Sufficiently Discuss the Bases for Recommending that Complainant's Charges be Dismissed for Failure to Establish a Causal Link Between the Protected Activity and Adverse Action; the Case will be Remanded for Further Findings

Complainant charged that his employment as a truck driver was terminated by the employer because of his reports and complaint to the employer's contractor, the U.S. Postal Service, regarding the safety and condition of the employer's trucks. The employer maintained that complainant's discharge was motivated by the need to reorganize truck routes and consolidate truck drivers; since complainant was the least senior driver, the employer contended, his position was terminated. Evidence was presented, however, showing that the employer had hired another employee shortly after complainant's discharge.

The ALJ found that complainant had established the elements of protected activity and adverse action, yet had failed to show the final element to proving that a violation had occurred -- a causal link between the two. Alternatively, the ALJ determined that, if the inference had, indeed, been raised that complainant's protected activity was the likely reason for the adverse action, the employer had shown that complainant's discharge was substantially motivated by lawful, non- discriminatory reasons and that complainant had not shown that the employer's reasons were merely a pretext. The Secretary rejected the ALJ's findings with respect to whether complainant had engaged in protected activity and on the issue of whether a causal link had been established. The Secretary remanded for further findings on these issues and on the alternative issue of whether the employer had met its burden under a dual motive analysis. Guernsey v. J.E. Nelson Transportation and Jerry E. Nelson, 91-STA-24 (Sec'y Feb. 13, 1992).

[STAA Whistleblower Digest II H 4 c]
MOTION TO REOPEN ONCE PETITION FOR REVIEW IS FILED IN COURT OF APPEALS; ARB DETERMINES THAT WITHOUT A REMAND, IT HAS NO JURISDICTION TO ENTERTAIN MOTION TO ADD NEW EVIDENCE TO THE ADMINISTRATIVE RECORD, OR ALTERNATIVELY, THAT THE SUCH EVIDENCE IN THE INSTANT CASE HAD NOT BEEN SHOWN TO BE MATERIAL BECAUSE IT WOULD NOT BE LIKELY TO CHANGE RESULT

In Smith v. Lake City Enterprises, Inc. , ARB No. 14-063, ALJ No. 2006-STA-32 (ARB Dec. 10, 2014), the Complainant obtained a stay from the Sixth Circuit Court of Appeals of his petition for review of the ARB's decision in order for the Complainant to file with the ARB a motion to reopen the record for the submission of new evidence. The new evidence related to whether the Respondent's owner's spouse exercised control over the Complainant's employment. The ARB denied the motion to reopen. The ARB first determined that it lacked jurisdiction to entertain the motion because the Sixth Circuit had not remanded the case the ARB. The ARB also determined, assuming that it had the jurisdiction over the motion, that the evidence the Complainant sought to add to the administrative record did not appear to be material because it would not be likely to change the result in the case.

[STAA Whistleblower Digest II H 4 c]
ARB MAY DECIDE ISSUE RATHER THAN REMAND TO ALJ WHERE REMAND WOULD BE MERE FORMALITY

In Beatty v. Inman Trucking Management, Inc. , the ALJ applied the wrong burdens of proof on the issue of causation, but the ARB decided the "contributing cause" issue rather than remanding to the ALJ on the issue because uncontroverted evidence of record proved that the Complainants� protected activity contributed to the adverse action. In regard to its decision to decide the case rather than to remand to the ALJ, the ARB cited the following federal court decisions:

See Hussain v. Gonzales , 477 F.3d 153 (4th Cir. 2007) (when the result of a remand is a foregone conclusion amounting to a mere formality, the "rare circumstances" exception to the remand rule is met and remand is unwarranted); Zhong v. U.S. Dep't of Justice , 461 F.3d 101, 113 (2d Cir. 2006) (stating that an agency error does not warrant remand when it is clear from the record "that the same decision is inevitable on remand, or, in short, whenever the reviewing panel is confident that the agency would reach the same result upon a reconsideration cleansed of errors") (citation omitted).

USDOL/OALJ Reporter at n.72.

[STAA Whistleblower Digest II H 4 c]
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).

II.H.4.c. Failure to raise issue at hearing

On appeal before the Secretary, the Respondent in its Memorandum in Support of Exceptions raised for the first time two new reasons why the Complainant should not be reinstated. The Secretary held that those arguments were not raised either at the hearing, or in the post-hearing brief to the ALJ who had no opportunity to consider them. The Secretary found that although the exceptions relate to the ALJ's order that Complainant be reinstated, these objections were not made when the Respondent submitted its initial exceptions. The Respondent failed to submit an initial brief as permitted by the Secretary's order and did not raise the issue in its lengthy reply brief. The Secretary concluded that this issue should have been raised at the hearing before the ALJ and refused to consider it now. Stone v. Nu-Car Carriers, Inc. , 86-STA-16 (Sec'y July 29, 1987).

[STAA Digest II H 4 c]
MOTION FOR RECONSIDERATION OF ARB DECISION; STANDARDS

The standards the ARB applies in consideration of a motion for reconsideration or for relief from judgment are stated in Cummings v. USA Truck, Inc. , ARB No. 04-043, ALJ No. 2003-STA-47 (ARB June 30, 2005). The ARB analogized such motions to petitioning for panel rehearing under Rule 50 the FRAP, requesting reconsideration of a final judgment or appealable interlocutory order under FRCP 59 or 60(b), and a motion for relief from a judgment under FRCP 60(b). The Board noted that it looks to 29 C.F.R. § 18.34(c) in considering whether to consider new evidence. In the instant case, the Complainant submitted new evidence on reconsideration, but the Board found that it did not alter the record or the ALJ's determination in regard to whether the Complainant engaged in protected activity under the STAA, and merely raised the same arguments that were considered and rejected by the Board in its prior decision. Thus, the Board declined to reconsider.

[STAA Whistleblower Digest II H 4 c]
REOPENING THE RECORD WHILE MATTER IS ON APPEAL TO THE ARB

The ARB disfavors reopening a closed record. When a party claims to have newly discovered evidence, guidance is found in FRCP 60(b), which provides for relief "from a final judgment, order, or proceeding" based upon "(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial . . .." Fed. R. Civ. P. 60(b)(2). To prevail under this standard, a movant must show that:

(1) the evidence was discovered after trial;
(2) due diligence was exercised to discover the evidence;
(3) the evidence is material and not merely cumulative or impeaching; and
(4) the evidence is such that a new trial would probably produce a different result.

The discovery of impeachment material is not a sufficient basis for reopening the record. Hogquist v. Greyhound Lines, Inc. , ARB No. 03-152, ALJ No. 2003-STA-31 (ARB Nov. 30, 2004) (ARB refused to reopen the record where the Complainant failed to show that the evidence was not available at the time of trial; or he merely offered it for impeachment; or he did not persuade the Board that considering it would produce a disposition of the case that would favor the Complainant).

[STAA Whistleblower Digest II H 4 c]
SUPPLEMENTATION OF BRIEF

In Schwartz v. Young's Commercial Transfer, Inc. , ARB No. 02-122, ALJ No. 2001-STA-33 (ARB May 9, 2003), the pro se Complainant timely submitted a brief, following numerous extensions. Several months later he submitted a letter seeking to supplement the brief. Citing the fact that the briefing period had ended and the Board's need to manage its docket, the ARB returned the filing to the Complainant.

[STAA Whistleblower Digest II H 4 c]
ISSUE RAISED FOR FIRST TIME AFTER ARB DECISION

In Young v. Schlumberger Oil Field Services , ARB No. 00-075, ALJ No. 2000-STA-28 (ARB May 1, 2003), the ARB had issued a Final Decision and Order on February 28, 2003. On April 2, 2003, Complainant requested further review, specifying with more particularity the nature of the argument in her pro se brief that the ALJ had failed to render adequate assistance, alleging that what she had meant was that the ALJ had acquiesced in evidence tampering by the Respondents legal representative. The ARB found that, without any explanation for the delay in raising this issue, it would decline to further consider the allegation.

[STAA Whistleblower Digest II H 4 c]
CLAIMS FOR DAMAGES INCURRED PRIOR TO HEARING BEFORE ALJ CANNOT BE RAISED FOR THE FIRST TIME BEFORE THE ARB

In Pettit v. American Concrete Products, Inc. , ARB No. 00-053, ALJ No. 1999-STA-47 (ARB Aug. 27, 2002), the ARB declined to review Complainant's arguments raising the issue of medical costs incurred because of the interruption of health insurance coverage. The ARB held that "[c]laims for medical costs that had been incurred between the time of the Complainant's termination on March 24, 1999, and the hearing before the ALJ should have been raised and litigated by the Complainant before the ALJ" and that the Complainant could not raise this issue for the first time before the Board on review. The ARB, however, observed that the ALJ's reinstatement order became effective immediately upon receipt by the Complainant, pursuant to Section 1978.109(b), and that "[t]he STAA provides that reinstatement entitles the Complainant 'to the former position with the same pay and terms and privileges of employment.' 49 U.S.C. §31105(b)(3)(A)(ii); see 29 C.F.R. § 1978.104(a)."

[STAA Whistleblower Digest II H 4 c]
AFFIRMATIVE DEFENSES MUST BE TIMELY RAISED BEFORE THE ALJ

In Pettit v. American Concrete Products, Inc. , ARB No. 00-053, ALJ No. 1999-STA-47 (ARB Aug. 27, 2002), the ARB rejected Respondent's request to remand for a hearing on the issue of mitigation of the Complainant's damages because failure to mitigate is an affirmative defense that must be timely raised by a respondent, citing Hobby v. Georgia Power Co. , ARB Nos. 98-166, -169, ALJ No. 1990-ERA-30, slip op. at 21-22 and authorities there cited (ARB Feb. 9, 2001) (ERA case). Since the Respondent failed to pursue this issue before the ALJ it could not raise it before the ARB.

[STAA Whistleblower Digest II H 4 c]
ARB REVIEW; EXHIBITS NOT IN RECORD MADE BEFORE ALJ NOT CONSIDERED BY ARB ON REVIEW

Exhibits submitted with a brief to the Board which were not part of the record developed before the ALJ are not considered by the ARB because the Board's decision is "based on the record and the decision and order of the administrative law judge." 29 C.F.R. § 1978.109(c). Stauffer v. Wal-Mart Stores, Inc. , ARB No. 00-062, ALJ No. 1999-STA-21 (ARB July 31, 2001).

[STAA Digest II H 4 c]
NEW EVIDENCE PRESENTED TO ARB IN STAA CASE; IF MOTION TO ADMIT IS GRANTED, CASE MUST BE REMANDED

In Madonia v. Dominick's Finer Foods, Inc. , 1998-STA-2 (ARB Jan. 29, 1999), the ARB rejected Complainant's argument that new evidence can be admitted without remanding the matter to the ALJ. The ARB held that its review of a case must be based on the record made before the ALJ and on the ALJ's recommended decision and order. 29 C.F.R. §1978.109(c)(1) (1997). Reliance by the Board on exhibits not in the record before the ALJ is, therefore, not permitted. Boyd v. Belcher Oil Co. , 1987-STA-9, slip op. at 3 (Dep. Sec'y Dec. 2, 1987).

[STAA Digest II H 4 c]
MOTION TO REOPEN/RECONSIDERATION; MISTAKES IN REMAND ORDER; ALLEGED ATTORNEY MISREPRESENTATION; ISSUE NOT ADDRESSED

Requests to reopen a final decision are disfavored. Jackson v. Protein Express , 1995-STA-38, slip op. at 2 (ARB May 29, 1998). Reconsideration should be granted only to correct manifest errors of law or fact or to present newly discovered evidence. Id .; Macktal v. Brown and Root, Inc . , 1986-ERA-23 (ARB Nov. 20, 1998).

In Leidigh v. Freightway Corp. , 1987-STA-12 (ARB Dec. 24, 1998), the ARB declined to reopen a case where:

(1) Although an earlier remand order of the Secretary contained a couple of misstatements of fact, the ALJ corrected the mistakes in his recommended decision on remand, and the ARB included the correct statement of the facts in the Final Decision.

(2) Complainant contended that his lawyer "misrepresented" him by failing to apply STAA Section 405(b), the "refusal to drive" provision, but a physician's report submitted by Complainant in support of this assertion was dated five years after the alleged refusal to drive, and, reviewing the OSHA Administrator's preliminary findings, there was no indication that the relevant complaint included a refusal to drive element. The ARB noted that it would not normally rely on the Administrator's findings, but would look to the record made before the ALJ; however, in the present circumstances, those findings were the best evidence of the nature of Complainant's complaint.

(3) There was no evidence to support Complainant's assertion that he had requested a leave of absence to correct his medical condition. [Editor's note: apparently this ground for reopening was based on the theory that this issue should have been addressed by DOL. The ALJ and the ARB had found that the leave of absence had been requested for the purpose of getting representation from the union in regard to Complainant's options upon a facility closing.]

FINDINGS OF FACT; SECRETARY'S AUTHORITY TO RENDER CONCERNING ISSUE ALJ DID NOT ADDRESS
[STAA Digest II H 4 c]

In Cook v. Guardian Lubricants, Inc. , 95-STA-43 (Sec'y May 1, 1996), the Secretary found that the ALJ did not address evidence concerning several pertinent issues. Since evidence had been adduced at the hearing on those issues, however, the Secretary made findings of fact on those issues rather than remanding the case. In making credibility determinations, the Secretary relied upon the relative consistency of the testimony. Citing, inter alia, Ertel v. Giroux Brothers Transp., Inc. , 88-STA- 24, slip op. at 12 and n.7 (Sec'y Feb. 16, 1989).

II.H.4.c. Scope of issues considered by Secretary

The Secretary may consider whether violations of section 2305 of the STAA not specifically alleged by the complainant or his counsel, nor addressed in the Assistant Secretary's preliminary order, took place. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992).

II.H.4.c. Record for review

In Bolden v. Distron, Inc., 87-STA-28 (Sec'y June 3, 1988), the Secretary refused to consider documents submitted for the purpose of augmenting the record made before the ALJ and the briefs and arguments made on review, and for the purpose of challenging the veracity of witnesses who testified at the hearing.

[STAA Whistleblower Digest II H 5 a]
WAIVER OF ARGUMENT THAT 2007 STAA AMENDMENT SHOULD BE APPLIED RETROACTIVELY WHERE ARGUMENT WAS NOT TIMELY RAISED BEFORE THE ALJ AND THE ARB

In Formella v. U.S. Dep't of Labor , No. 09-2296 (7th Cir. Dec. 10, 2010) (case below ARB No. 08-50, ALJ No. 2006-STA-35), the plaintiff, a truck driver, was fired by Schnidt Cartage, Inc. after he raised safety concerns about the truck that Schnidt had assigned to him. The plaintiff filed a complaint with OSHA alleging that Schnidt retaliated against him by firing him after he reported his safety-related complaints, in violation of Section 405 of the Surface Transportation Assistance Act of 1982, P.L. No. 97-424, 96 Stat 2097 (Jan. 6, 1983)("STAA"). An ALJ found that the plaintiff was not terminated for reporting his safety concerns but rather for "his provocative, intemperate, volatile, and antagonistic conduct" in expressing his concerns." Formella at 2. The ARB sustained the ALJ's decision. The plaintiff appealed the ARB decision on the grounds that the ARB erred "in failing to apply the more employee-friendly provisions added to the statute in 2007 and that, in any case, his conduct, even if it was as confrontational as Schnidt claims it was, did not exceed the leeway to which employees complaining of unsafe practices are entitled." Id .

In 2007, the STAA was amended to incorporate the legal burdens of proof set forth in the whistleblower provisions of AIR 21, 49 U.S.C. § 42121(b)(2)(B), which are more favorable to the complaining employee. The court held that the plaintiff "forfeited his belated contentions that the evidence should be evaluated under the statute as amended." Formella at 16. The court noted that "the statute was modified after the hearing before the ALJ concluded, but nearly six months before the ALJ rendered his decision. Yet, the plaintiff did not ask the ALJ to consider the applicability of the amendment to his complaint, and the ALJ applied the statute in its pre-amendment form." Id . The plaintiff failed to argue to the ARB that the amended STAA should be applied to his case and the ARB abstained from deciding the applicability of the amendments. The Court of Appeals found that it was "far too late" for the plaintiff to raise the new burdens of proof specified in the amendments before the Court of Appeals. "The proceedings in the Department of Labor were adversarial, and in an adversarial setting it is reasonable to expect the parties to raise and develop any issues that they want the ALJ and the ARB to address, on pain of forfeiting any issues that they do not mention." Id .

The Court of Appeals denied the plaintiff's petition for review on the grounds that:

the ALJ's factual determination that Schnidt fired Formella not because he refused to drive the truck assigned to him but because he was insubordinate and disruptive in expressing his safety concerns was supported by substantial evidence. Although the Formella was entitled to some leeway for inappropriate behavior his concerns, the ARB was neither illogical nor arbitrary in sustaining the ALJ's determination that plaintiff exceeded that leeway in provoking and antagonizing his superior.

Id . at 25.

II H 5 a Appeal only from final order

The court granted the Secretary's motion to dismiss the Petitioner's appeal after concluding that the Secretary had not issued a final order for this case. The court found the relevant statute contemplated a final order before the right to appeal is granted. The court further noted that postponing the appeal in this case until after the issuance of a final order will not result in the loss of the right to appeal that issue.

Yellow Freight System, Inc. v. Reich, No. 93-4347, 1994 U.S. App. LEXIS 5082 (6th Cir. May. 17, 1994).

[STAA Whistleblower Digest II H 5 a]
REMAND WHERE ARB REQUESTS AN OPPORTUNITY TO RECONSIDER ITS DECISION

In Roadway Express, Inc. v. Administrative Review Board, USDOL , Nos. 03-4074 and 03-4115 (6th Cir. Nov. 22, 2004) (unpublished) (case below Eash v. Roadway Express, Inc. , ARB Nos. 02-008 and 02-064, ALJ No. 2000-STA-47), the ARB had affirmed without discussion the ALJ's granting of summary judgment to the Respondent on the issue of fatigue where the ALJ found that that the Complainant had become fatigued though no fault of the Employer. On review before the Sixth Circuit, the ARB moved for remand because it had failed to address an earlier case also involving the Complainant in which it had reversed an ALJ's grant of summary judgment in favor of the Respondent and held that a genuine issue of material fact is raised at the summary judgment stage where the Complainant disputes whether he deliberately made himself unavailable for work due to fatigue. The court granted the ARB's motion following precedent to the effect that an agency should be allowed to reconsider its own decision if it has doubts about the correctness of that decision. The court denied the Complainant's suggestion that the case be remanded directly to the ALJ because to do so would implicitly make a finding on the appropriateness of summary judgment in the case -- the very issue which the ARB sought to reconsider.

II H 5 b Reinstatement proceeding

See Division IX A 4 c .

II.H.5.c. Deferral to Secretary, not ALJ

In Yellow Freight Systems, Inc. v. Reich, No. 93- 1205 (4th Cir. Oct. 29, 1993) (available at 1993 U.S. App. LEXIS 28378), the Fourth Circuit held that it would review only the decision of the Secretary, and did not consider the employer's contention that the Secretary failed to accept the ALJ's findings of fact as required under 29 C.F.R. § 1978.109(c)(3). The Court stated that "[t]he Secretary may disagree with an ALJ's conclusions and review the record independently to assess evidence not adequately considered at the hearing."

One judge dissented, concluding that the Secretary failed in his obligation to accept the ALJ's findings of fact when supported by the record.

[STAA Digest II I]
CRITERIA FOR DETERMINING WHETHER MOVANT HAS SHOWN GROUNDS FOR ARB'S PANEL RECONSIDERATION

In deciding a motion for panel reconsideration, the ARB generally will consider whether the movant has shown:

(i) material differences in fact or law from that presented to the Board of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the Board's decision, (iii) a change in the law after the Board's decision, and (iv) failure to consider material facts presented to the Board before its decision.

Clark v. Hamilton Hauling, LLC , ARB No. 13-023, ALJ No. 2011-STA-7 (ARB July 24, 2014), USDOL/OALJ Reporter at 2, citing Friedman v. Columbia Univ. , ARB No. 12-089, ALJ No. 2012-ERA-008, slip op. at 2 (ARB Jan. 22, 2014) (Order Denying Reconsideration). In Clark , the ARB found that the Complainant's failed to show that the panel decision warranted reconsideration.

[STAA Digest II I]
WHERE PARTY FILES MOTION FOR RECONSIDERATION WITH ALJ AND A PETITION FOR REVIEW WITH THE ARB, THE ARB WILL HOLD THE PETITION IN ABEYANCE UNTIL ALJ RULES ON MOTION

In Dick v. Tango Transport , ARB No. 14-054, ALJ No. 2013-STA-60 (ARB May 14, 2014), the Complainant filed a request for reconsideration with the ALJ, and a petition for review with the ARB. The ARB issued an Order Holding Petition for Review in Abeyance. The ARB stated that if the ALJ accepted the Complainant's motion for reconsideration as timely, the ALJ's decision would not yet be ripe for appeal, but that if the ALJ found that the motion for reconsideration was not timely, the Complainant must notify the Board at which time the Board would decide whether to accept the case for review. The Board stated that if the ALJ issued a decision on reconsideration, a petition for review could be filed as provided in 29 C.F.R. § 1978.110(a).

[STAA Digest II I]
RECONSIDERATION; ARB OVERLOOKED MATERIAL FACT

In Kerchner v. Grocery Haulers, Inc. , ARB No. 08-066, ALJ No. 2007-STA-41 (ARB June 30, 2010), the ARB had affirmed the ALJ's finding that the Respondent was the proper party to a timely blacklisting claim. Because the ALJ found that OSHA had misconstrued the blacklisting claim as against the company with which the Complainant applied rather than the Respondent (his former employer) the ALJ ordered a remand for OSHA to investigate the blacklisting claim. The ARB found in its June 30, 2001 decision that the ALJ should have heard the blacklisting claim rather than remanding to OSHA. The Respondent then filed a motion for reconsideration informing the Board that OSHA had already considered and rejected the blacklisting claim. An ALJ hearing had been requested on this second complaint, but the Complainant withdrew it after failing to secure the services of an attorney. The ARB affirmed the ALJ's dismissal in Kerchner v. Grocery Haulers, Inc. , ARB No. 10-003, ALJ No. 2009-STA-52 (ARB Nov. 30, 2009). In view of having overlooked this material fact, the ARB found that it erred in remanding the blacklisting claim to the ALJ in ARB No. 08-066, ALJ No. 2007-STA-41. The ARB reissued its decision in ARB No. 08-066, ALJ No. 2007-STA-41, affirming in all other respects. Kerchner v. Grocery Haulers, Inc. , ARB No. 08-066, ALJ No. 2007-STA-41 (ARB Mar. 8, 2011)

[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 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 II I]
ALLEGATION OF INEFFECTIVE ASSISTANCE OF COUNSEL IN STAA WHISTLEBLOWER CASE NOT COGNIZABLE

In Montgomery v. USDOL , No. 08-60716 (5th Cir. Oct. 2, 2009) (unpublished), the court rejected the Complainant's argument that his constitutional right to effective assistance of counsel was infringed during STAA whistleblower proceedings before the ARB and the ALJ, because the Sixth Amendment right to counsel is inapplicable in civil cases.

[STAA Whistleblower Digest II I]
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).

II I Submission of evidence after the hearing

In the absence of any prior explanation or reference, the ALJ did not err in refusing to accept into the record late evidence submitted by Complainant. 29 C.F.R. §§ 18.54(c), 18.55 (1993); cf. Eisner v. United States EPA, 90-SDW-2 (Sec'y Dec. 8, 1992).

Settle v. BWD Trucking Co., Inc., 92-STA-16 (Sec'y ay 18, 1994).

[Editor's note: The ALJ had left the record open for 30 days following the hearing for the submission of briefs. Nearly a year later, Complainant submitted a supplemental brief in which he sought inclusion into the record of five additional documents that he contended could not be obtained until a few weeks prior to the supplemental filing. The ALJ held that the record had closed 30 days following the hearing, and because Complainant had not provided notice that it intended to file additional documents, the supplemental brief would not be considered. Settle v. BWD Trucking Co., Inc., 92-STA-16 (ALJ July 30, 1993).]

[STAA Digest II I]
NEW EVIDENCE

In Madonia v. Dominick's Finer Foods, Inc. , 1998-STA-2 (ARB Jan. 29, 1999), the Board remanded the case to the ALJ for receipt into evidence, of a letter that Respondent obtained after the issuance of the ALJ's recommended decision as the result of discovery in a separate lawsuit under the ADA. The letter was relevant and material, see 29 C.F.R. § 18.54(c), because it tended to bolster Respondent's credibility concerning a crucial date that related to whether Respondent's discharge of Complainant was motivated by protected activity or by Complainant's failure to abide by a condition imposed on his continued employment following an altercation.

In Foley v. Boston Edison Co. , 1997-ERA-56 (ARB Feb. 2, 1999), in contrast, the ARB denied a motion to reopen where Complainant did not yet have possession of any additional documents, had not shown that the information would be relevant, had not shown that the information was not previously available at trial, and it appeared that Complainant was "merely ... hoping or expecting that these inquiries by government agencies [studies or investigations by the NRC or OIG] might generate information useful to his case."

[STAA Digest II I]
MOTIONS FOR RECONSIDERATION; ARB DISFAVORS

The ARB stated in Jackson v. Protein Express , 95-STA-38 @ 2 (ARB May 29, 1998), that motions for reconsideration are generally disfavored, citing INS v. Doherty , 502 U.S. 314, 323 (1992); Harsco Corp. v. Zlotnicki , 779 F.2d 906, 909 (3d Cir. 1985) (Reconsideration should be granted only to "correct manifest errors of law or fact or to present newly discovered evidence."). In Jackson , however, the ARB did reconsider to clarify its holding in its earlier Remand Order.

II.I. ALJ does not have the authority to rule on a motion to reconsider after issuance of the Recommended D & O

In Tankersly v. Triple Crown Services, Inc., 92- STA-8 (Sec'y Feb. 18, 1993), the Secretary refused to consider the ALJ's ruling on the complainant's motion for reconsideration because subsequent to issuance of the Recommended Decision and Order, jurisdiction passed to the Secretary. 29 C.F.R. § 1978.109; cf. McGavock v. Elbar, Inc., 86-STA-5 (Sec'y ar. 15, 1988) (order denying amendment of remand order).

[Editor's note: The Secretary applied Rule 59(e) of the Fed. Rules of Civ. Proc. to find that she could not rule on a motion for reconsideration filed more than 10 days after issuance of an order in Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Oct. 27, 1992) (order denying motion to reconsider). I do not have a copy of the McGavock order so I do not know if it conflicts with Spearman .

Query: What does this ruling mean to supplementary decisions on attorneys' fees?]

II I Reconsideration by ALJ

In Settle v. BWD Trucking Co., Inc., 92-STA-16 (ALJ Jan. 21, 1994), adopted, Settle v. BWD Trucking Co., Inc., 92-STA-16 (Sec'y May 18, 1994), the ALJ denied Complainant's motion for reconsideration of his earlier recommended decision and order on the merits based on the Secretary's ruling in Tankersly v. Triple Crown Services, Inc., 92-STA-8 (Sec'y Feb. 18, 1993), that an ALJ has no jurisdiction to consider a motion for reconsideration after issuance of the recommended decision and order.

The ALJ had granted the parties time after the decision on the merits to submit evidence on the amount of back wages owed, and to submit any motion for expenses and attorney fees.

II.I. Newly submitted evidence

The record may be reopened for newly discovered evidence already in existence of which a party was excusably ignorant. A complainant's claim, however, that he was hampered by lack of access to the investigative record was unavailing in this case. The Secretary noted that the failure to show diligence to discover the evidence before the close of the hearing militates against reopening the record. Additionally, the Secretary noted that newly discovered evidence, the effect of which is merely to discredit, contradict or impeach a witness, does not afford a basis for the granting of a new trial. See N.L.R.B. v. Jacob E. Decker & Sons , 569 F.2d 357, 364 (5th Cir. 1978). McDaniel v. Boyd Brothers Transportation , 86-STA-6 (Sec'y Mar. 16, 1987).

II.I. Vacating of decision

In Green v. Creech Brothers Trucking, 92-STA-4 (Sec'y Dec. 7, 1993), the Secretary Reich vacated a decision by Secretary Martin in Complainant's favor, Green v. Creech Brothers Trucking, 92-STA-4 (Sec'y Dec. 9, 1992), remanded a case for submission of further evidence by both Complainant and Respondent. Secretary Reich's Order of Remand was based on Respondent's decision to join Complainant's earlier complaint that he was denied due process at the hearing before the ALJ, and the Assistant Secretary's agreement that the case should be remanded under the circumstances.

II.I. Complainant's Motion to Reopen Record for submission of evidence not presented to ALJ

In Boyd v. Belcher Oil Co., 87-STA-9, (Sec'y Dec. 2, 1987), the Deputy Secretary denied Complainant's Motion to Reopen the Record for the submission of evidence not presented to the ALJ. The Secretary stated that his review of the case must be based on the record made before the ALJ and on the ALJ's decision. Furthermore, upon review of the evidence for purposes of determining whether the case should be remanded to the ALJ for review of the additional evidence, the Deputy Secretary noted that the purpose of the new evidence offered was to contradict or impeach witnesses so as to overcome the ALJ's findings of fact. The Deputy Secretary determined that this was not an adequate basis for a new hearing and limited his review to the record before the ALJ.

II.I. Reconsideration by Secretary

In Stiles v. J.B. Hunt Transportation, Inc., 92- STA-34 (Sec'y Dec. 3, 1993), the Secretary denied a motion for reconsideration of his earlier decision that Complainant had not established a violation of the employee protection provision of the STAA. The Secretary reconsidered, even though the STAA does not contain a provision for seeking reconsideration of a final decision of the Secretary, because the earlier decision had been based on a finding that Complainant had not filed a brief with the Secretary. Complainant averred in his motion for reconsideration that he had filed such a brief and attached a copy to his motion.

Considering the entire record, including the brief, the Secretary concluded that the brief raised no new issues or evidence that was not considered in reaching the earlier decision, and therefore denied the motion for reconsideration.

[Editor's note: It is not entirely clear, but I think the Secretary actually granted the motion for reconsideration, but affirmed his prior decision.]

II.I. Motion for reconsideration

A motion for reconsideration mailed more than ten days following the issuance of the Secretary's Decision and Order and Order Vacating Procedural Orders and Directing Reassignment was not timely. The Secretary, noting that neither the STAA nor its implementing regulations provide for reconsideration by the Secretary, applied Rule 59(e) of the Federal Rules of Civil Procedure (motion to alter or amend a judgment must be served not later than ten days after entry of judgment). Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y Oct. 27, 1992) (Order Denying Motion to Reconsider), slip op. at 1-2.

II I Reopening of record; evidence closing of terminal

In Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995), the Secretary granted Respondent motion to reopen the record to provide evidence that it had closed its Buffalo operation three months after the conclusion of the hearing, finding that the evidence is new and material evidence that was not available prior to the end of the hearing. See 29 C.F.R. § 18.54(c). Complainant had worked out of the Buffalo terminal.

II I Secretary considers motion for reconsideration in post- Bartlik STAA case

In Ass't Sec'y & LaJoie v. Environmental Management Systems, Inc., 90-STA-31 (Sec'y Apr. 3, 1995) (order denying motion for reconsideration), the Secretary denied the Respondent's motion for reconsideration. The Secretary considered the Respondent's arguments, but found that none persuaded him to reverse his previous decision.

[ Editor's note: This order is of interest mainly because the Secretary denied the motion on merits; he did not discuss the question of whether he has the authority to reconsider. In an ERA proceeding, the Sixth Circuit has found that the Secretary does not have authority to reconsider a final decision. Bartlik v. United States Dept. of Labor, 34 F.3d 365 (6th Cir. 1994). The Secretary has declined to follow Bartlik outside the Sixth Circuit. Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Dec. 8, 1994) (order denying requests for reconsideration).

Although the Secretary assumes he has authority to rules on motions for reconsideration, he has found that the ALJ does not have similar authority once the ALJ issues a recommended decision and order. Tankersley v. Triple Crown Services, 92-STA-8 (Sec'y Feb. 18, 1993).]

II I Reopening of record

In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y ar. 16, 1995), the Secretary denied a motion for reconsideration, but remanded the matter to the ALJ to reopen the record. The Secretary did not discuss his authority to order a case reopened following issuance of a final decision and order.

[STAA Digest II J]
ALLEGATION MADE IN POST-TRIAL PLEADING IS NOT DEEMED ADMITTED UNDER FRCP 8(b)(6) WHERE A RESPONSIVE PLEADING WAS NOT PROCEDURALLY REQUIRED

In Montgomery v. USDOL , No. 08-60716 (5th Cir. Oct. 2, 2009) (unpublished), the Complainant argued that the ALJ and the ARB erred when they failed to deem as admitted various allegations that he made in post-trial submissions, given that the Respondent had not specifically denied those allegations. The court observed that FRCP 8(b)(6) provides that an allegation is admitted "if a responsive pleading is required and the allegation is not denied." The court found, however, that no allegations should have been admitted because no responsive pleading was required after the Complainant's post-trial motions for a new trial.

[STAA Digest II J]
APPELLATE BRIEFS; EXTENSION OF TIME TO FILE DENIED WHERE MOTION FOR EXTENSION WAS FILED BEYOND ORIGINAL DUE DATE AND DID NOT CITE ANY REASON JUSTIFYING LATE FILING

In Trammell v. New Prime, Inc. , ARB No. 07-109, ALJ No. 2007-STA-18 (ARB Oct. 5, 2007), the ARB had earlier granted the Complainant's motion for an extension of time to file its appellate brief where the motion was filed prior to the due date for the brief and established good cause for an extension. The ARB, however, denied in the instant order the Respondent's motion for an extension of time to file its brief where the motion was filed beyond the due date and did not cite any reason for allowing an extension.

II.J. Defective service of ALJ decision

Where the record contained no evidence certifying that the parties received a copy of the ALJ's recommended decision, the OAA appended a copy to its notice of receipt. McGinnis v. Transcon Lines, Inc., 90-STA-39 (Sec'y June 16, 1993) (Notice of Receipt and Service of Administrative Law Judge's Decision).

[Editor's note: The ALJ's recommended order of dismissal included a service sheet. In addition, the body of the order included a notice stating that the Recommended Order "is being served on the parties and the Secretary of Labor." Apparently the reason OAA did not consider there to be evidence of receipt was that the Legal Technician did not sign or date the service sheet. This is not entirely clear, however, since signature of a service sheet could only "certify" service, not receipt. Thus, is OAA requiring the use of certified mail in STA cases? Perhaps this is the point because the thrust of the recommended order is that the Complainant be found to have abandoned his complaint upon failure to respond to the ALJ's order to show case.

OAA's service sheet is signed and dated but not stated in terms of "certifying" service. OAA mailed the notice via certified mail to the Complainant and the Complainant's attorney, but regular mail to the Respondent's attorney. Neither the ALJ nor OAA served the Respondent directly (this could be because there was no address for Respondent or because Respondent's attorney was taking all service).]

[STAA Whistleblower Digest II J]
REQUEST FOR HEARING; FAILURE TO TIMELY SERVE OPPOSING PARTY

In Daigle v. United Parcel Service , 2004-STA-42 (ALJ Nov. 30, 2004), the ALJ declined to dismiss a STAA whistleblower complaint based on the Complainant's failure to timely serve the Respondent with a copy of his request for a hearing. The ALJ rejected the Respondent's suggestion that the ALJ follow her own decision in Steffenhagen v. Securitas, AB , 2005-ERA-3 (ALJ Dec. 16, 2003), finding that it was distinguishable on several grounds. First, Steffenhagen was governed by the ERA whistleblower regulations, which require service on the opposing party, whereas the STAA regulations do not impose such a requirement. Second, in Steffenhagen the Complainant was represented by counsel and had not provided OSHA with sufficient evidence to serve 17 named respondents with notice of the investigation. OSHA dismissed on these grounds, and the Complainant did not correct the failure of notice before the ALJ. In the instant case, in contrast, the Respondent was involved in the OSHA investigation, and the failure to serve the Respondent with a notice of request for a hearing did not prejudice the Respondent, particularly in view of the fact that the ALJ's notice of hearing was issued five days after the docketing of the appeal with OALJ.

[STAA Whistleblower Digest II J]
BRIEFING ON APPEAL IN STAA CASE; SINCE REVIEW IS AUTOMATIC BRIEFS ARE DUE WITHOUT FURTHER ORDER THE BOARD

In Somerson v. Mail Contractors of America , ARB No. 03-055, ALJ No. 2002-STA-44 (ARB Nov. 25, 2003). the Board ruled:

Pursuant to 29 C.F.R. § 1978.109, an Administrative Law Judge is required to immediately forward his or her decision under the STAA to the Administrative Review Board (ARB or Board), the Secretary's designee, to issue a final order. The regulation further provides that the parties may file briefs in support of or in opposition to the Administrative Law Judge's decision within thirty days of the date on which the Judge issued the decision. 29 C.F.R. § 1978.109(c)(2). Accordingly, pursuant to 29 C.F.R. § 1978.109, review of the ALJ's R. D. & O. in this case was automatic and any briefs in support of or in opposition to the R. D. & O. were due on January 15, 2003, without further order of the Board.

Slip op. at 5 (footnote omitted).

[STAA Whistleblower Digest II J]
ARB BRIEFING FORMAT REQUIREMENTS; FAILURE TO COMPLY

In Roberts v. Marshall Durbin Co. , ARB No. 03-071, ALJ No. 2002-STA-35 (ARB Apr. 15, 2003), the ARB returned a brief to a pro se Complainant who used single spacing rather than double spacing, except in regard to block quotations. The ARB viewed the submission as a an attempt to evade its 30 page limitation as specified in the briefing schedule.

[STAA Whistleblower Digest II J]
EVIDENCE; NEGATIVE INFERENCE DRAWN BASED ON FAILURE TO PRODUCE WITNESS

In Poll v. R. J. Vyhnalek Trucking , ARB No. 99-110, ALJ No. 1996-STA-35 (ARB June 28, 2002), the ALJ found that the Complainant had engaged in protected activity based upon his testimony and on a negative inference. The ALJ wrote: "The evidence is contradictory as to whether complainant was required to falsify [his driver's daily logs and vehicle inspection reports], but as respondent did not call ... as a witness ... the individual who respondent [sic] identified as requiring the falsification, I draw the inference that complainant's testimony in this regard is truthful." The ARB found that the record supported the ALJ's finding in this regard, thereby implicitly approving the ALJ's use of an adverse inference based on the Respondent failure to call a critical witness within its control.

[STAA Digest II J]
BRIEF BEFORE ARB; EQUITABLE FILING OUT OF TIME

In More v. R&L Transfer, Inc. , ARB No. 01-044, ALJ No. 2000-STA-23 (ARB Mar. 16, 2001), the ARB granted Complainant's motion to file a brief out of time, where Complainant, who was proceeding pro se , averred that he attempted to contact a number of DOL officials to determine the procedures for filing a brief, but did not find out the schedule until he contacted the ARB.

[STAA Digest II J]
BRIEF BEFORE ARB; ENLARGEMENT OF TIME TO SOLICIT AMICUS BRIEFS DENIED

In Stauffer v. Walmart Stores, Inc. , ARB No. 00-062, ALJ No. 1999-STA-21 (ARB Feb. 21, 2001), the ARB denied Complainant's motion for an enlargement of time to solicit amicus briefs. The Board had granted permission for each party to file a brief responsive to the opening briefs because of the unusual circumstances of the case. The Board found the request to solicit amicus briefs beyond the scope of the order permitting the filing of responsive briefs.

II. J. Service of decision and other service and filing issues

When read together, 29 C.F.R. §§ 18.4(a)(3) and 18.6(b), provide that, if a motion is served upon a party by mail, that party "may file" a response to the motion within 15 days of service.

Roadway Express, Inc. v. Reich, No. 93-3787 (6th Cir. Aug. 22, 1994) (unpublished) (available at 1994 U.S. App. LEXIS 22924) (implying that 29 C.F.R. § 18.6(a), which provides that "all parties shall be given reasonable opportunity to state an objection to the motion or request," should not be interpreted as only requiring that the opposing party be given a reasonable time to respond).

II.J. Timeliness of brief

In Kovas v. Morin Transport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993), the Secretary denied Respondent's motion to strike the Acting Assistant Secretary for OSHA's brief, finding that the brief was timely filed pursuant to 29 C.F.R. § 1978.109(c)(2) and 29 C.F.R. § 18.4(c), which provides that five days should be added to the prescribed filing period when the triggering document is served by mail, such as the ALJ's decision here. See 29 C.F.R. § 18.3(c).

II.J. Service of recommended order must be "certified"

In McGinnis v. Transcon Lines, Inc., 90-STA-39 (ALJ ar. 11, 1993), the ALJ ordered the parties to show cause why the request for a hearing should not be deemed abandoned given Complainant's failure to keep the Office of Administrative Law Judges apprised of the status of the case (which had been continued over two years earlier based on Respondent's bankruptcy proceeding). Neither party responded, and the ALJ issued a recommended order of dismissal (which in an STAA abandonment case results in conversion of the Administrator's findings into the final order). McGinnis v. Transcon Lines, Inc., 90-STA-39 (ALJ Apr. 26, 1993),

The Secretary served the recommended order on the parties, apparently because the ALJ's service sheet was not signed ("no evidence in the record certifying that the parties received a copy of the ALJ;s recommended decision"). McGinnis v. Transcon Lines, Inc., 90-STA-39 (Sec'y June 16, 1993). Upon receiving no response, the Secretary entered as the final administrative order in the case the Administrator's findings. McGinnis v. Transcon Lines, Inc., 90-STA-39 (ALJ July 22, 1993).

II. J. Service of decision and other service and filing issues

When read together, 29 C.F.R. §§ 18.4(a)(3) and 18.6(b), provide that, if a motion is served upon a party by mail, that party "may file" a response to the motion within 15 days of service.

[STAA Digest II K]
DISCOVERY; ALJ'S AUTHORITY TO LIMIT WHERE COMPLAINANT'S REQUESTS WERE BROAD AND VAGUE

In Coates v. Southeast Milk, Inc. , ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the ARB � noting that DOL ALJs have the authority to limit discovery � affirmed the ALJ's order finding that the Respondent had fully cooperated in discovery, even though it had objected to some of the Complainant's requests as overly vague, broad, burdensome or ambiguous, not related to the STAA complaint, or protected by privilege or attorney work product. The ALJ concluded that the Respondent had responded as well as possible, given the broad and vague nature of the Complainant's questions. The ARB found that the Complainant had not shown how any of the information turned over could have helped him prove issues related to his STAA complaint, but rather had made it clear that his discovery requests were meant to help him establish all his theories about the Respondent on matters such as overtime pay, excessive hours on duty, concerted activities, environment pollution, free speech, etc.

[STAA Digest II K]
DISCOVERY; ALJ'S DISCRETION TO IMPOSE REASONABLE SANCTIONS

In Roadway Express v. U.S. Dept. of Labor, Administrative Review Board , No. 06-1873 (7th Cir. July 25, 2007), the Complainant alleged that he had been fired in retaliation for his support of a co-worker in a grievance hearing in which the co-worker had been accused of falsifying his driving log. The Complainant filed a statement in the proceeding asserting that the Respondent had asked him to falsify his driving log. The Respondent fired the Complainant the same day on the stated ground that he had falsified his employment application regarding his driving record. When the complaint reached the ALJ level, the Complainant sought in discovery the identity of all persons who had provided information about his driving record. The Respondent refused, claiming that revealing its source would put the informant at risk of retaliation and hurt its business operations. The ALJ rejected this argument and granted a motion to compel, noting that the Respondent had not invoked any recognized privilege. The Complainant requested entry of default judgment, but the ALJ chose the lesser sanction of precluding the Respondent from presenting any evidence that arose from the confidential source. The Respondent had no other evidence to support its claim that the discharge was not retaliatory, and therefore the sanction as a practical matter was fatal to its defense. The ARB affirmed the ALJ.

On appeal to the Seventh Circuit the Respondent argued that the discovery sanction deprived it of fundamental due process and was disproportionate to the discovery violation. The Seventh Circuit found that the ALJ had the authority to impose reasonable rules to structure the proceeding before him, and that under the facts no due process violation had occurred. In regard to the proportionality of the sanction, the court recognized that it had an enormous impact on the Respondent's case, but that the Respondent's noncompliance made it impossible for the Complainant to present his case, and for the ALJ to resolve the claim on the merits. Thus, the ALJ's leveling of the playing field as best he could through a sanction was not an abuse of discretion.

The court, however, then considered whether the sanction should have extended to prevent presentation of evidence relevant to the issue of reinstatement. The court noted that the STAA frames reinstatement as an absolute requirement, but recognized that there were practical limits to reinstatement as a remedy. The court wrote: "If, for example, Cefalu were now blind, we would not require Roadway to reinstate him as a truck driver. If Roadway no longer existed, we would not force it to reincorporate for the purposes of reinstating Cefalu. In short, if the premise behind the statutory remedy, that the status quo ante can be restored, fails, then the Board is entitled to adopt a remedy that is the functional equivalent of the one prescribed by the statute. " Slip op. at 12. The court found that although the ALJ's sanction was appropriate for the merits stage of the hearing, the Respondent should have been permitted to present evidence on whether it was impossible to reinstate the Complainant because of his driving record.

[STAA Whistleblower Digest II K]
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. § 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).

[STAA Whistleblower Digest II K]
SANCTIONS FOR FAILURE TO COMPLY WITH DISCOVERY ORDER; RESPONDENT'S REFUSAL TO REVEAL IDENTITY OF CONFIDENTIAL INFORMANT

In Cefalu v. Roadway Express, Inc. , ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB Jan. 31, 2006), the Complainant was discharged the very evening that he provided a statement on behalf of a co-worker who had grieved a discharge for allegedly falsifying his driving log. The Complainant's statement alleged that a superior had asked him to falsify a log in violation of the hours of service regulations. The stated ground for the discharge was that the Complainant lied on his 1999 job application.

In discovery the Complainant served an interrogatory requesting the identity of all persons who provided information that the Respondent considered in determining whether to discharge the Complainant. The Respondent refused to respond on the ground that it had promised to keep the informant's identity secret. The ALJ granted the Complainant's motion to compel and denied a motion by the Respondent for a protective order. The Respondent refused to comply. Later, the Complainant's counsel deposed three witnesses of the Respondent who knew the identity of the informant but refused to disclose it. The Complainant thereafter filed a motion seeking sanctions. The ALJ denied a default judgment, but ordered that the Respondent not be permitted to present any evidence that arose from the unidentified confidential source. After a hearing, the ALJ found in favor of the Complainant.

On review, the ARB found that the ALJ's discovery sanction was not an abuse of discretion. The Respondent's defense was to be that its discharge of the Complainant for lying on his job application was a legitimate, non-discriminatory ground. To show that this was pretext, the Complainant was entitled to know when the Respondent found out about the job application and from whom. He was also entitled to know who participated in the decision to discharge him. The Board, therefore, found that the discovery sanction was appropriate and tailored to the discovery the Respondent refused to produce.

[STAA Whistleblower Digest II K]
DISCOVERY; REFUSAL TO IDENTIFY "CONFIDENTIAL SOURCE"; SANCTION OF LIMITATIONS ON EVIDENCE THAT THE NON-COMPLYING PARTY CAN PRESENT

In Cefalu v. Roadway Express, Inc. , 2003-STA-55 (ALJ Jan. 20, 2004), the ALJ imposed sanctions on the Respondent for failure to comply with the ALJ's order granting the Complainant's motion to compel discovery of the identity of a confidential source. The ALJ in that earlier order had found that the Respondent had not articulated a recognizable privilege to protect the source's identity and that the identity of the source was relevant to the discovery process. The Respondent refused to reveal the identity of the source, and the Complainant moved for judgment against the Respondent as a sanction. In response, the Respondent argued that it had respected all the orders and deadlines imposed by the ALJ, with the exception of the confidential source ruling, and suggested that default was not proportional to the violation and that limited attorney fees and costs related to the discovery dispute would be a more appropriate sanction.

The ALJ found that default was not appropriate because the Complainant had not yet even established a prima facie case. The ALJ also found, however, that limited attorney's fees were not proportional either. Rather, the ALJ determined that the sanction would be "that Respondent shall not be permitted to present any evidence that arose from the unidentified confidential source, including, but not limited to, the testimony of the individual(s) who confirmed that Complainant was terminated from his prior employment, the testimony of the individual(s) who made the decision to terminate Complainant, and any related documentary evidence." Slip op. at 1-2.

[STAA Digest II K]
SUBPOENAS; ARB DECLINES TO REVISIT CHILDERS DECISION

See Administrator, Wage and Hour Div., USDOL v. Integrated Informatics, Inc. , ARB No. 08-127, ALJ No. 2007-LCA-26 (ARB Jan. 31, 2011), a case arising under the H-1B nonimmigrant alien labor certification regulations, in which the ARB declined the Wage and Hour Division Administrator's request that the ARB reexamine and reject Childers v. Carolina Power & Light , ARB No. 98-077, ALJ No. 1997-ERA-032 (ARB Dec. 29, 2000).

[STAA Whistleblower Digest II K]
SUBPOENAS; REQUEST FOR SUBPOENAS WHILE CASE PENDING BEFORE THE ARB

In Reid v. Constellation Energy Group, Inc. , ARB No. 04-107, ALJ No. 2004-ERA-8 (ARB Oct. 13, 2004), Halpern v. XL Capital, Ltd. , ARB No. 04-120, ALJ No. 2004-SOX-54 (ARB Oct. 13, 2004) and Cummings v. USA Truck, Inc. , ARB No. 04-043, ALJ No. 2003-STA-47 (ARB Sept. 15, 2004), the ARB denied the requests of pro se complainants to obtain subpoenas from the ARB. The Board observed in each case that the Board acts in an appellate capacity and its decision is based only on evidence considered by the ALJ in the initial hearing.

II. K. Discovery issues

Effective September 14, 1994, 29 C.F.R. Part 18 was amended to eliminate the routine filing with the presiding ALJ of most discovery documents, and to provide rules governing the filing and service of documents by facsimile.

In regard to section 18.3(f), faxes will be permitted for filing only when directed or permitted by statute, regulation or order or consent of the presiding judge. Such filings must have a service sheet and a cover sheet. Originals do not have to be sent unless required by the presiding judge or if an original signature is required (e.g., on a complaint). Under section 18.4(d), the time printed on the transmission by the receiving fax machine is deemed the Chief Docket Clerk's date stamp.

See 59 Fed. Reg. 41874 (Aug. 15, 1994).

[STAA Whistleblower Digest II K]
SUBPOENAS; ERROR TO DENY WITHOUT STATING LEGAL STANDARD OR RATIONALE

In Schwartz v. Young's Commercial Transfer, Inc. , ARB No. 02-122, ALJ No. 2001-STA-33 (ARB Oct. 31, 2003), the ARB found that the ALJ erred in denying subpoenas to Complainant based on summary conclusions that the requests were untimely, and were "overly broad, vague and not relevant." The ARB faulted the ALJ for failing to cite any pertinent legal standards or otherwise provide a rationale for the rulings. The Board found at least one category of records sought by Complainant to be clearly relevant, and falling squarely within the parameters of materials that are properly discoverable in an employment discrimination case. See 29 C.F.R. § 18.14(a)(Scope of discovery; providing that the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the proceeding�."). The ARB found that Respondent's concerns about disclosure of dispatch information containing references to other employees could have been effectively addressed through mutual agreement of the parties or a protective order issued by the ALJ. The Board, however, found that the error was harmless because it was able to decide the appeal based on facts not in issue and therefore not impacted by the error in discovery rulings.

In a footnote, the ARB noted the holding in Bobreski v. U.S. Environmental Protection Agency , No. 02-0732 (RMU), 2003 WL 22246796 at *6-8 (D.D.C. Sept. 30, 2003), to the effect that an ALJ does not have the authority to issue a subpoena without a specific statutory grant of such authority. The ARB stated "Regardless of whether the ALJ is authorized to issue subpoenas pursuant to the STAA, he clearly does have the authority to take measures to compel production pursuant to Section 18.6(d) and 18.21."

[STAA Whistleblower Digest II K]
HIPAA Regulations Governing the Privacy of Health Records

On April 14, 2003, Department of Health and Human Services' "Privacy Rules" governing the release of medical records went into effect for many of entities covered by the regulations. Standards for Privacy of Individually Identifiable Health Information, 45 CFR Parts 160 and 164. The primary purpose of the Privacy Rules is to require health plans and providers to maintain administrative and physical safeguards to protect the confidentiality of health information and protect against unauthorized access. HHS issued the rules in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

HHS' Office for Civil Rights has established a web page www.hhs.gov with links to information about the new rules. In addition, a page has been added to OALJ's web site with links to resources specific to the relationship between the Privacy Rules and judicial and administrative proceedings.

The regulations begin with the premise that "[a] covered entity may not use or disclose protected health information, except as permitted or required by [the regulations]." 45 C.F.R. § 164.502(a). Disclosures, however, are permitted in response to an order of a court or administrative tribunal and in response to a subpoena, discovery request, or other lawful process. 45 CFR § 164.512(e). The rule on disclosures in judicial and administrative proceedings contains some important details. For example:

When disclosing information in response to an order issued by a court or administrative tribunal, a covered entity may only disclose the protected health information expressly authorized by such order. 45 CFR § 164.512(e)(1)(i).

In responding to a subpoena or discovery request, a covered entity must "receive[]satisfactory assurance . . . from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request." 45 CFR § 164.512(e)(1)(ii)(A).

Regulatory history discussing whether employment records are covered by the regulations is found at www.oalj.dol.gov/PUBLIC/RULES_OF_PRACTICE/REFERENCES/ REFERENCE_WORKS/HIPAA_REG_HISTORY_EMPLOYMENT_RECORDS.HTM.

[STAA Whistleblower Digest II K]
SUBPOENAS; RELEVANCY; CONFUSION OR WASTE OF TIME

In Somerson v. Mail Contractors of America, Inc. , 2002-STA-44 (ALJ Sept. 27, 2002), the ALJ denied issuance of a subpoena seeking the records of an FBI agent who had evidently interviewed attorneys for Respondent in relation to a prior proceeding in which Complainant had been referred for contempt to a U.S. District Court, where Complainant did not show what relevant and admissible evidence was sought or could be led to by the discovery. The ALJ also concluded that it appeared that whatever documents would be produced by such a subpoena "would be likely to raise issues whose definition and resolution would be possible only by reliance upon evidence which would be necessarily excludable on grounds of confusion or waste of time pursuant to 29 [CFR] §18.403."

II.K. Refusal of Respondent to cooperate

In Gaspar v. Gammons Wire Feeder Corporation, 87- STA-5 (Sec'y Sept. 17, 1987) the Secretary found that the ALJ properly imposed sanctions on Respondent pursuant to 29 C.F.R. section 18.6(d)(2)(1986) for failure to comply with the ALJ's discovery orders. The Secretary also adopted the ALJ's finding "that all requested evidence would have been adverse to the Respondent, that all such matters are taken as established adversely to the Respondent, that the Respondent may not now introduce evidence in support of his appeal or object to the Plaintiff's evidence, and that the Respondent's request for a formal hearing is stricken." In conclusion, the Secretary determined that Respondent could not be permitted to thwart or to retard the adjudication of Complainant's complaint by not being responsive to the ALJ's orders.

II. K. Discovery issues

See 59 Fed. Reg. 41874 (Aug. 15, 1994).

II K Dismissal for failure to comply with discovery and prehearing orders

In White v. "Q" Trucking Co., 93-STA-28 (Sec'y Dec. 2, 1994), the Secretary adopted the ALJ's recommendation that the complaint be dismissed based on the Complainant's refusal to comply with certain discovery and prehearing orders. 29 C.F.R. § 18.6(d)(2)(v). The Secretary agreed with the ALJ that costs and expenses should not be assessed against the Complainant.

[ Editor's note: The ALJ decision underlying the Secretary's final order was detailed. The ALJ carefully established Complainant had demonstrated a pattern of contumacious conduct. The ALJ's conclusion that costs and expenses should not be awarded to the Respondent for preparation of the Motion for Sanctions was based on the Secretary's ruling in Billings v. Tennessee Valley Authority, 89-ERA-16, 25, 90-ERA-2, 8, 18 (Sec'y July 28,m 1992), that the Department had elected not to assert any inherent authority to impose costs in a whistleblower proceeding. See White v. "Q" Trucking Co., 93-STA-28 (ALJ Aug. 12, 1994).]

[STAA Digest II L]
DISMISSAL OF STAA ADMINISTRATIVE ACTION BASED ON BANKRUPTCY COURT'S NOTICE THAT IT WOULD ADJUDICATE THE STAA COMPLAINT

In Yusim v. Midnight Sun Tours , ARB No. 14-007, ALJ No. 2010-STA-66 (ARB Sept. 18, 2014), the ARB affirmed the ALJ's dismissal of the Complainant's STAA complaint based on a bankruptcy court's notice that it would adjudicate the STAA complaint, and the Respondent's liquidation of assets.

[STAA Digest II L]
ARB DENIES PETITION FOR REVIEW OF ALJ'S STAA DECISION WHERE BANKRUPTCY COURT DETERMINED THAT IT WOULD ADJUDICATE THE CLAIM

In Joyner v. Coach AM Group Holdings Corp. , ARB No. 13-093, ALJ No. 2011-STA-42 (ARB Dec. 13, 2013), the Complainant petitioned for ARB review of the ALJ's decision dismissing his STAA whistleblower claim. The Respondent's counsel filed a motion to withdraw with ARB, indicating therein that a Bankruptcy court had determined that the Complainant's proof of claim on the STAA matter would be adjudicated by the Bankruptcy court. The ARB granted the motion to withdraw, and ordered the parties to state whether the ARB has the authority to proceed given the Bankruptcy court's determination. The Complainant replied by asking the ARB to request the Bankruptcy court to forward the Complainant's case to district court for consideration of withdrawal under 28 U.S.C. § 157(d). The ARB found that the response failed to establish that the ARB had the authority to proceed, and therefore rejected the petition for review of the ALJ's decision under 29 C.F.R. § 1982.110(b). The ARB noted that its denial of review resulted in the ALJ's decision becoming the final order of the Secretary, and that the appeal was to the appropriate U.S. Court of Appeals.

[STAA Digest II L]
BANKRUPTCY; AUTOMATIC STAY PROVISION DOES NOT APPLY WHERE WHISTLEBLOWER COMPLAINT COULD NOT AND DID NOT COMMENCE BEFORE BANKRUPTCY ACTION WAS FILED

In Smith v. Lake City Enterprises, Inc. , ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010), it became evident on appeal that the Respondent was no longer in business and that its owner and her spouse were in Chapter 13 bankruptcy proceedings. The ARB thus remanded for the ALJ to consider reopening the record. The ARB wrote:

While the Morgans were in bankruptcy, Smith was fired and filed his complaint on November 15, 2005. Smith could not have filed his complaint until after Crystle Morgan fired him and thus could not have commenced the STAA proceeding before she and her husband had filed for bankruptcy in April 2005. Therefore, the automatic stay does not apply. See Williams v. United Airlines, Inc. , ARB No. 08-063, ALJ No. 2008-AIR-003, slip op. at 4 (ARB Sept. 21, 2009) (the Bankruptcy Code automatically stays proceedings concerning claims arising before the bankruptcy is filed, but does not protect debtors from claims arising after the bankruptcy filing).

USDOL/OALJ Reporter at 12-13. Thus, the bankruptcy stay did not apply because the Complainant could not and did not commence the proceedings before the bankruptcy action was filed.

[STAA Digest II L]
BANKRUPTCY STAY; CASE REMAINS ON ALJ'S DOCKET UNTIL BANKRUPTCY CASE IS RESOLVED OR STAY LIFTED, EVEN THOUGH NEITHER PARTY RESPONDS TO ALJ'S ORDER REQUESTING STATUS UPDATE

In Haubold v. KTL Trucking Co. , ARB No. 08-025, ALJ No. 2000-STA-35 (ARB Feb. 27, 2009), the ARB had remanded a STAA matter that had been stayed under Section 362 of the Bankruptcy Code. The Board's remand order instructed that the case "will remain on the [ALJ's'] docket until the bankruptcy case is closed, dismissed, or discharge is granted or denied or until the bankruptcy court lifts the stay and the ALJ may then continue the proceedings to resolve the matter before him." Approximately seven years later, the ALJ issued an Order to Show Cause Why Case Should Not Be Dismissed" requiring the parties to address whether any of the eventualities specified in the ARB's remand order had occurred. Neither party responded, and the ALJ thereafter issued a Recommended Order of Dismissal. The case was forwarded for automatic review by the ARB. Neither party responded to the ARB's docketing order; however, because the Bankruptcy Court's docket sheet indicated that the bankruptcy matter was still pending, the ARB again remanded the case to remain on the ALJ's docket until the bankruptcy case was resolved or the stay lifted.

[STAA Digest II L]
BANKRUPTCY; DISCHARGE BY LIQUIDATION PLAN

Where the Respondent filed for bankruptcy and the Complainant failed to file a proof of claim, the ARB affirmed the ALJ's finding that the bankruptcy court's plan of liquidation discharged any liability the Respondent may have had toward the Complainant on his employee protection complaint under the STAA. Belt v. Consolidated Freightways Corp. , ARB No. 06-069, ALJ No. 2002-STA-32 (ARB Jan. 31, 2008).

[STAA Digest II L]
BANKRUPTCY; FAILURE OF PARTIES TO COMMUNICATE WITH THE BOARD FOLLOWING RESOLUTION OF BANKRUPTCY PROCEEDING OR TO RESPOND TO ORDER TO SHOW CAUSE

In Taylor v. Express One International, Inc. , ARB No. 02-054, ALJ No. 2001-AIR-2 (ARB Aug. 23, 2007), the ARB had stayed an appeal because the Respondent had entered bankruptcy.� After the Board received a copy of an Agreed Order concluding the Respondent's bankruptcy case, and neither party communicated with the Board, the Board issued an Order to Show Cause why the case should not be dismissed on grounds of abandonment.� Neither party responded, and the Board dismissed the appeal.

To the same effect:� Carmichael v. Consolidated Freightways Corp. of Delaware, Inc. , ARB No. 02-081, ALJ No. 2000-STA-53 (ARB Aug. 23, 2007).

II L Stay for bankruptcy proceedings

The automatic stay provision in section 362(a)(1) of the Bankruptcy Act is applicable to STAA proceedings. See Nelson v. Walker Freight Line, Inc., 87-STA-24 (Sec'y July 26, 1988). Moreover, where the Assistant Secretary upon investigation of the complaint determines that it has no merit, and therefore the Assistant Secretary participates neither as a prosecuting party or an intervenor, a complainant's STAA proceeding does not fall within section 362(b)(4), which exempts from the automatic stay provision any proceedings by governmental units for enforcement of policy or regulatory power. See Torres v. Transcon Freight Lines, 90-STA-29 (Sec'y Jan. 30, 1991).

A complainant is not to be dismissed automatically where a bankruptcy proceeding results in a stay. Rather, the stay remains in effect only until a final disposition of the bankruptcy case, see 11 U.S.C. § 362(c), which may or may not result in the discharge of the respondent from all of its debts. The fact that the bankruptcy proceeding is a Chapter 7 liquidation proceeding and there has been appointed a Trustee, whose duties include the liquidation and expeditious closing of the bankruptcy estate, see 11 U.S.C. § 204(l), presupposes that the bankruptcy court will discharge the respondent from all its debts on liquidation of its assets. Until the bankruptcy court orders the discharge of the respondent from all its debts, however, the Complainant has a viable, albeit stayed, claim. Torres, 90-STA-29, slip op. at 5.

Thomas v. Western American Concrete, 90-STA-16 (Sec'y Apr. 8, 1991) (order staying proceeding and remanding case).

[Editor's note: complaints were later dismissed in Thomas v. Western American Concrete, 90-STA-16 (Sec'y July 13, 1992), where the final report of the Chapter Seven Trustee for the bankruptcy estate of the respondent certified that respondent's estate has "no assets."]

[STAA Digest II L]
STAY OF RELIEF; FOUR-PART TEST (LIKELY SUCCESS ON APPEAL; IRREPARABLE INJURY; PROSPECT OTHERS WILL BE HARMED; PUBLIC INTEREST); MERE FINANCIAL LOSS DOES NOT ESTABLISH IRREPARABLE INJURY; LENGTH OF TIME COMPLAINANT HAS WAITED FOR RELIEF; STAA AS A PUBLIC PROTECTION LAW

In Cefalu v. Roadway Express, Inc. , ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB May 12, 2006), PDF the ARB had affirmed the ALJ's award of reinstatement, back pay and other relief, and the ALJ's attorney fee order. The Respondent appealed to the Seventh Circuit and sought a stay from the ARB. The ARB, applying the four-part test found in Dutkiewicz v. Clean Harbors Envtl. Servs., Inc. , ARB No. 97-090, ALJ No. 1995-STA-34 (ARB Sept. 23, 1997), denied a stay because (1) the Respondent's motion provided no reason why it would be likely to succeed on appeal, (2) "mere" financial loss does not support a finding of irreparable harm, and the only "irreparable injury" alleged was that the Respondent would have to make payments to the Complainant and his counsel and would have to spend extensive time and resources to post notices of the decision in its nationwide system of terminals, (3) the Complainant had already waited more than four years to have his pay and benefits restored and may continue to suffer harm if a stay was granted, and (4) the STAA is a public protection statute; therefore the public interest would not be served if a stay was granted.

[STAA Whistleblower Digest II L]
DISCHARGE OF STAA COMPLAINT BY APPROVAL OF LIQUIDATION PLAN BY BANKRUPTCY COURT

While the case was pending before the ALJ, the Respondent filed for bankruptcy. The Complainant reached a settlement with the Debtor's Official Unsecured Creditor's Committee, and later received a discounted court-approved distribution. The Bankruptcy Court later approved the Committee's amended Liquidation Plan. The ALJ held that the Bankruptcy Court had discharged the Complainant's STAA claim and recommended dismissal of the complaint. On automatic review, the ARB found that the ALJ correctly applied the law to the facts and dismissed the complaint. Kirkpatrick v. Action Steel Supply, Inc. , ARB No. 06-070, ALJ No. 2001-STA-60 (ARB Oct. 31, 2006). PDF | HTM

[STAA Digest II L]
BANKRUPTCY OF RESPONDENT; ALJ ORDER OF DISMISSAL WITHOUT PREJUDICE COMPORTS WITH SECTION 1978.111(c)

In Husen v. LLK Transport, Inc. , ARB No. 06-094, ALJ No. 2005-STA-1 (ARB Feb. 28, 2007), PDF | HTM OSHA found in favor of the Complainant. The Complainant, however, requested a hearing on OSHA's failure to impose individual liability on the Respondent's owner. At the hearing, the ALJ dismissed the complaint against the Respondent because it had ceased operations. Subsequently, the Respondent's owner filed for Chapter 7 bankruptcy, and the bankruptcy court granted an order of discharge of debtors. The Complainant then filed a motion to dismiss without prejudice. On automatic review, the ARB found that the ALJ's order of dismissal without prejudice comported with 29 C.F.R. § 1978.111(c), which permits a party to withdraw its objections to OSHA's investigative finding at any time before that finding becomes final.

[STAA Digest II L]
JUDICIAL ESTOPPEL; FAILURE TO DISCLOSE STAA PROCEEDING TO BANKRUPTCY COURT

[STAA Whistleblower Digest II L]
STANDING; COMPLAINANT, RATHER THAN BANKRUPTCY TRUSTEE, HAS STANDING TO PURSUE REINSTATEMENT REMEDY OF STAA WHISTLEBLOWER COMPLAINT

In King v. U-Haul Co. of Nevada , 2004-STA-55 (ALJ Nov. 22, 2005), the Respondent moved to dismiss based on judicial estoppel based on the Complainant's failure to disclose the DOL whistleblower proceeding in a bankruptcy proceeding. The Respondent also argued that the Complainant lacked standing to prosecute the DOL complaint after he filed for bankruptcy protection.

The ALJ questioned whether an Article I adjudicator has the authority to grant the type of equitable relief sought, but found that even if he had such authority, he would not grant it under the circumstances of the present case. The ALJ noted that judicial estoppel is discretionary by nature, and that the interests to be protected were not the Respondent's but the adjudicatory process itself. The ALJ found that when the Complainant filed his bankruptcy petition, OSHA had not yet replied to his whistleblower complaint (which was merely a method for initiating an OSHA investigation and not a trial-type adjudicatory proceeding). In regard to a coincident NLRB complaint, the ALJ found that such proceeding belonged to the NLRB General Counsel rather than the Complainant.

The ALJ found that the Complainant's potential right to reinstatement under the STAA complaint provided standing to the Complainant irrespective of the bankruptcy Trustee's interests in any back pay or compensatory damage claims. The ALJ stayed the STAA proceeding for the Complainant to present the STAA claim to the bankruptcy Trustee, who could decide whether to pursue the back pay and compensatory damage claims or to follow the procedures to abandon them.

[STAA Whistleblower Digest II L]
BANKRUPTCY; AUTOMATIC STAY DOES NOT APPLY TO SUITS BROUGHT BY THE DEBTOR -- THUS COMPLAINANT'S BANKRUPTCY PETITION WOULD NOT STAY AN STAA WHISTLEBLOWER PROCEEDING

In Bettner v. Crete Carrier Corp. , 2004-STA-18 (ALJ Oct. 1, 2004), the Complainant had filed a voluntary petition in bankruptcy. Earlier, the Complainant had filed a STAA whistleblower complaint. The ALJ held that the automatic stay provision of the Bankruptcy Act does not apply to suits by the debtor in the Seventh Circuit, and therefore the STAA proceeding would proceed.

[STAA Whistleblower Digest II L]
RESPONDENT REPORTED OUT OF BUSINESS AFTER ALJ ISSUES RECOMMENDED DECISION; ABSENT INFORMATION INDICATING ARB REVIEW IS PRECLUDED, A FINAL DECISION ON THE MERITS WILL STILL ISSUE

In Drew v. Alpine, Inc. , ARB Nos. 02-044 and 02-079, ALJ No. 2001-STA-47 (ARB June 30, 2003), the ALJ had issued a Recommended Decision and Order recommending that Complainant be reinstated with backpay and that the final Decision and Order be posted at the terminal for 120 days. Respondent, a bus tour company, informed the Board that it did not intend to appeal the ALJ's decision, but indicated that it may need to move to modify the order because Respondent ceased operating bus tours shortly before the ALJ issued his decision. Subsequently, Respondent's attorney withdrew, noting upon information and belief that Respondent's affairs were now subject to a U.S. bankruptcy court proceeding. Bankruptcy notices attached to the attorney's submission, however, did not specially mention Respondent, and the ARB issued an Order to Show Cause. The responses to the Order to Show Cause did not establish that ARB adjudication of the merits would be precluded; accordingly the ARB affirmed and adopted the ALJ's Recommended Decision, but slightly modified the Order to accommodate the uncertainty about whether Respondent was still in business in the surface transportation business.

[STAA Digest II L]
AUTOMATIC STAY FOR BANKRUPTCY PROCEEDING; CASE SHOULD REMAIN ON DOCKET UNTIL BANKRUPTCY CASE IS CLOSED RATHER THAN BE DISMISSED

In Haubold v. KTL, Inc. , ARB No. 00-065, ALJ No. 2000-STA-35 (ARB Aug. 10, 2000), a Chapter 7 Trustee notified the ALJ that Respondent had filed a petition for reorganization under Chapter 11 of the United States Bankruptcy Code, which was subsequently converted into a proceeding under Chapter 7. After issuing an order to show cause which the matter should not be dismissed, to which the pro se Complainant did not respond, the ALJ issued a recommended order of dismissal purportedly pursuant to the automatic stay provision of 11 U.S.C. 363 and Torres v. Trancon , 1990-STA-29 (Sec'y Jan. 30, 1991). The ARB held that dismissal of the case was not appropriate where there was no evidence that the bankruptcy court had in fact discharged Respondent from all its debts. The Chapter 7 trustee's notice to the ALJ stated that even if the exceptions to the automatic stay provision were applicable, Complainant had failed to timely file a proof of claim against the Debtor's estate and therefore he would be forever barred from asserting his claims against the estate. The ARB, however, observed that the Trustee had cited no support for this assertion, and ruled that even if the assertion is true, the automatic stay provision does not specifically include dismissal of a proceeding. Citing Pope v. Manville Forest Products , 778 F.2d 238, 239 (5th Cir. 1985), the ARB held that dismissal of the case would, in fact, violate the automatic stay to which the case is subject. Thus, the ARB remanded the case to the ALJ where the case would remain on the ALJ's docket until the bankruptcy case is closed, dismissed, or discharge is granted or denied, or until the bankruptcy court lifts the stay.

[STAA Digest II L]
STAY; DISCRETION TO POSTPONE STAA PROCEEDING

In Glasscock v. Alliant Foodservice, Inc. , 1999-STA-44 (ALJ Jan. 13, 2000), the ALJ found that the Secretary has the discretion to postpone a determination of an STAA complaint pending the results of another proceeding. See 29 C.F.R. §1978.112(b) and (c). Thus, where Complainant filed a civil action that was removed to Federal district court, and in both proceedings Complainant alleges wrongful termination of employment and asserts his right to report unsafe working conditions without retaliation, the ALJ found that the matter could be postponed pending resolution of the civil action This was an alternative finding, however. The ALJ dismissed the action because she found that it was not timely filed.

[STAA Digest II L]
STAY OF ARB'S FINAL ORDER PENDING APPELLATE REVIEW

In Dutkiewicz v. Clean Harbors Environmental Services, Inc. , 95-STA-43 (ARB Sept. 23, 1997), Respondent sought a stay pending judicial review of the portion of the ARB's final decision requiring Respondent to pay monies to Complainant. The ARB applied the following factors for determining whether the Board's final decision should be stayed:

(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal;

(2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting a stay.

The ARB found that Respondent had not established that it will suffer irreparable harm unless the stay is granted. Respondent argued that it was unlikely that it would be able to get the money back it won the appeal. The ARB, however, cited caselaw to the effect that economic loss alone does not constitute irreparable harm; such a loss must threaten the movant's very existence.

In addition, the ARB found that Respondent had not demonstrated that it was likely to prevail on the merits in regard to issues about the burden of proof, internal complaints, and admissibility of hearsay.

Respondent also argued that "no public interest is promoted by rendering a litigant's legitimate right of appeal moot." The ARB, however, found that the absence of a stay does not moot a respondent's appeal.

STAY OF FINAL ORDER; FACTORS
[STAA Digest II L]

The Administrative Review Board applied the factors stated in Virginia Petroleum Jobbers Ass'n v. Federal Power Commission , 259 F.2d 921 (D.C. Cir. 1958), to determine whether to stay its Final Decision and Order in the matter. Ass't Sec'y & Bigham v. Guaranteed Overnight Delivery , 95-STA-37 (ARB Dec. 12, 1996). Those factors are:

1) Has the [party seeking a stay] made a strong showing that it is likely to prevail on the merits of its appeal?

* * * *

2) Has the petitioner show that without such relief, it will be irreparably injured? The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.

* * * *

3) Would the issuance of a stay substantially harm other parties interested in the proceeding?

* * * *

4) Where lies the public interest? In litigation involving the administration of regulatory statutes designed to promote the public interest, this factor necessarily becomes crucial. The interests of private litigants must give way to the realization of public purposes.

Slip op. at 2, quoting Petroleum Jobbers , 259 F.2d at 925. The Board, weighing these factors, denied Respondent's request for a stay.

II.L. Remand to clarify bankruptcy status

II L DOL whistleblower proceedings excepted from stay

Although pursuant to 11 U.S.C. § 362(a)(1), a bankruptcy petition generally stays proceedings against a debtor, 11 U.S.C. § 362(b)(4) operates to except DOL enforcement of the whistleblower provision of the STAA. Ass't Sec'y & Dougherty v. Bjarne Skjetne, Jr. d/b/a Bud's Bus Service, 94-STA-17 (Sec'y Mar. 16, 1995).

In Dougherty , however, Complainants missed the objection to discharge date, and the Bankruptcy Court disallowed their claim against Respondent, who was proceeding under Chapter 11. The Secretary noted that the Bankruptcy Court's decree may be fatal to Complainants' ability to collect damages, but that a decision on this issue was not within the Secretary's jurisdiction.

II L Application for stay to agency

In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Oct. 21, 1994) (order denying application for stay), Respondent applied for an administrative stay of the Secretary's final decision pending judicial review. In denying a stay, the Secretary found that Respondent's bare assertion that a stay would not place an unreasonable burden on Complainant is insufficient in the absence of any showing, or allegation, that Respondent is likely to prevail in its appeal; that Respondent will suffer irreparable injury if not granted a stay; and that the public interest is at stake.

[STAA Digest II N]
ADMISSIBILITY OF TAPE RECORDING AND TRANSCRIPT OF TAPE

The Sixth Circuit held in Goggin v. Administrative Review Board , No. 97-4340 (6th Cir. Jan. 15, 1999)(unpublished) (available at 1999 WL 68694) (case below 1996-STA-25), that "[t]he admission of audio recording and transcripts of taped recordings at trial or an administrative hearing rests within the sound discretion of the trial court or administrative law judge. ... Taped recordings are admissible unless incomprehensive portions of the tapes are so substantial as to render the recordings as whole untrustworthy." (citations omitted). In Goggin , Complainant had tape recorded a supervisor as he confronted the supervisor over an unsafe condition in the truck he had been assigned the day before. Where the tape recording was transcribed by a court reporter and certified as accurate, and both the ALJ and the ARB found that the tape and transcript were admissible as non-hearsay admissions of a party-opponent under 29 C.F.R. § 18.801(d)(2), the court found that there was no abuse of the ALJ's discretion in admitting the tape and certified transcript, even though certain parts of the tape were inaudible.

[STAA Digest II M]
DISTRICT COURT DENIED MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISIDCTION IN AN STAA CASE; BAD FAITH COMPONENT OF SECTION 31105(C) NOT A PLEADING REQUIREMENT FOR THE PLAINTIFF BUT EQUIVALENT TO AN AFFIRMATIVE DEFENSE THEREFORE THE DEFENDANT HAS THE BURDEN OF PLEADING BAD FAITH; NO NOTICE REQUIREMENT UNDER SECTION 31105(C)

In Austerman v. Behne, Inc. , Civ. No. 10-4502 (JRT/FLN), 2011 WL 1598419 (D. Minn. Apr. 7, 2011) (case below ARB Nos. 10-149, 11-001, ALJ No. 2010-STA-18), adopted Austerman v. Behne, Inc. , Civ. No. 10-4502 (JRT/FLN), 2011 WL 1598419 (D. Minn. Apr. 28, 2011), the plaintiff filed a civil action under the Surface Transportation Assistance Act (STAA), 29 U.S.C. § 31105, alleging that the defendants' terminated him in retaliation for reporting a safety issue. The defendants' filed a motion to dismiss for lack of subject matter jurisdiction. The court stated that Section 31105(c) identifies two elements for establishing federal court jurisdiction over a STAA complaint: (1) no final decision of the Department of Labor (DOL) within 210 days of filing a complaint; and (2) the delay is not due to the bad faith of the employee. It was undisputed that the DOL had not issued a final decision on the plaintiff's complaint, and that 210 days had passed since the plaintiff filed his claim. The defendants' challenges, therefore, were limited to the issue of bad faith.

The defendants alleged that: (1) pleading lack of bad faith is a jurisdictional prerequisite to bring a claim under 29 U.S.C. § 31105(c); (2) the plaintiff's failure to adhere to DOL's notice requirement under 29 C.F.R. § 1987 constituted bad faith; and (3) removing a Section 31105 action to the District Court after a hearing before an ALJ is evidence of bad faith.

The district court denied the defendants' motion to dismiss for lack of subject matter jurisdiction and held that the plaintiff met the jurisdictional requirements for de novo review under 49 U.S.C. § 31105(c). First, the court found that the "bad faith" component of Section 31105(c) is not a pleading requirement, but rather an equivalent to an affirmative defense. Therefore, the defendants, not the plaintiff, had the burden of pleading that the plaintiff had engaged in bad faith. Second, the court found that the plain reading of Section 31105(c) does not impute a notice requirement on a plaintiff. The court, therefore, did not find the plaintiff's failure to comply with the notice requirement articulated in the DOL's STAA regulations constituted bad faith. Lastly, the court found that the record contained no evidence that the plaintiff sought to mislead or deceive at any point in the proceedings and that seeking statutory remedy provided by Congress is not deceptive, fraudulent, or sinister.

[STAA Digest II M]
REPETITIOUS FILINGS OF COMPLAINTS IN ATTEMPT TO RELITIGATE AN ISSUE MAY INVITE LEGAL SANCTIONS

In Bedwell v. Spirit Miller NE, LLC , ARB No. 10-024, ALJ No. 2009-STA-60 (ARB Oct. 27, 2011), the Complainant had twice previously filed STAA whistleblower complaints that had been found untimely by OSHA and the ALJ. In both instances, the ARB had affirmed the finding that the complaint was not timely filed, and in both instances the Complainant had not appealed to the federal courts. The Complainant filed a third complaint, and the ALJ found that issue preclusion barred this complaint. The ARB agreed and dismissed the complaint. The ARB observed in a footnote that the Complainant had filed two other complaints which had been dismissed as untimely by an ALJ. The ARB noted that "...Bedwell continues to relitigate an issue that was first decided in 2006. His repetitious filing of complaints borders on abuse of process and invites legal sanctions." USDOL/OALJ Reporter at 5, n.17 (citation omitted).

[STAA Digest II M]
ALJ DOES NOT HAVE AUTHORITY TO AWARD MONETARY SANCTIONS UNDER FRCP RULE 11 EVEN WHERE THE COMPLAINANT ADMITTED THAT HE HAD FALSIFIED DRIVING LOGS TO PROVIDE EVIDENCE OF A DOT VIOLATION, AND DONE SO SEVERAL TIMES

In Jackson v. Smedema Trucking, Inc. , ARB Nos. 07-011, 08-052, ALJ Nos. 2005-STA-44, 2006-STA-36 (ARB Sept. 30, 2008), a case in which appeals from two different ALJ decisions were consolidated before the ARB, the Respondent had asked both ALJs for FRCP Rule 11 sanctions where the Complainant filed a claim of retaliation but admitted that he intentionally falsified driving logs to provide evidence of a DOT violation and that he had done this several times before. The Complainant also admitted filing roughly forty complaints against various employers in the last five years. Both ALJs concluded that the Complainant appeared to be abusing the legal system, but that an ALJ does not have the power to award monetary sanctions. The ARB also concluded that an ALJ, absent statutory authority, does not have authority to award monetary sanctions. The ARB noted that one of the ALJs attempted to certify the issue of Rule 11 sanctions to the Western District Court of Wisconsin, but that the district court refused to award Rule 11 sanctions for procedural reasons. Jackson v. Smedema Trucking, Inc. , 536 F. Supp. 2d 1009 (W.D. Wis. 2008).

[Editor's note: The district court found that the regulation permitting an ALJ to certify misconduct issues to federal district court did not, in itself, create jurisdiction for the district court; rather, there must be statutory authority for such jurisdiction.]

[STAA Digest II M]
MISCONDUCT; BOARD DOES NOT HAVE THE AUTHORITY TO IMPOSE RULE 11 SANCTIONS

In Israel v. Schneider National Carriers, Inc. , ARB No. 06-040, ALJ No. 2005-STA-51 (ARB July 31, 2008), the Complainant filed a motion with the ARB for Rule 11 sanctions, claiming that the Respondent made false accusations before the ALJ hearing. The Board denied the motion, writing:

The Board may not impose Rule 11 sanctions. The Secretary has observed that "the incorporation of the Federal Rules in 29 C.F.R. § 18.29 is for purposes of procedure and case management to fill in any gaps where no specific provision in the Rules of Practice is applicable. . . . [The Federal Rules do] not give the Secretary the authority directly to impose sanctions and penalties if not otherwise authorized by law." Even if the Board could impose Rule 11 sanctions, Israel has failed to identify any pleadings, motions, or advocacy before the ALJ in which Rule 11 violations occurred.

USDOL/OALJ Reporter at 14-15.

[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; FIRST AMENDMENT; LIMITATIONS ON IN-COURT SPEECH

In Board of Professional Responsibility v. Slavin , No. M2003-00845-SC-R3-BP (Tenn. Aug. 27, 2004) (unpublished decision available at 2004 WL 1908797), the Tennessee Supreme Court imposed a two-year suspension on an attorney based on, inter alia , that attorney's conduct in administrative law judge hearings before the U.S. Department of Labor. One of the contentions made by the attorney on appeal was that he was being sanctioned for First Amendment protected speech. The court rejected this claim, writing:

In the context of judicial proceedings, an attorney's First Amendment rights are not without limits. Although litigants and lawyers do not check their First Amendment rights at the courthouse door, those rights are often subordinated to other interests inherent in the judicial setting. See Gentile v. State Bar of Nev. , 501 U.S. 1030, 1071 (1991); United States Dist. Court v. Sandlin , 12 F.3d 861, 866 (9th Cir. 1993); Koster v. Chase Manhattan Bank , 93 F.R.D. 471, 476 (S.D.N.Y. 1982); State v. Carruthers , 35 S.W.3d 516, 560-61 (Tenn. 2000). Thus, while we find that legitimate criticism of judicial officers is tolerable, "an attorney must follow the Rules of Professional Conduct when so doing." Shortes v. Hill , 860 So. 2d 1, 3 (Fla. Dist. Ct. App. 2003). A lawyer is not free to "seek refuge within his own First Amendment right of free speech to fill a courtroom with a litany of speculative accusations and insults." United States v. Cooper , 872 F.2d 1, 3 (1st Cir. 1989).

The United States Supreme Court stated:

It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal.

Gentile , 501 U.S. at 1071.

"The First Amendment does not preclude sanctioning a lawyer for intemperate speech during a courtroom proceeding." Jacobson v. Garaas (In re Garaas) , 652 N.W.2d 918, 925 (N.D. 2002) (emphasis added). Commenting on Gentile in a disciplinary proceeding, the Supreme Court of Missouri concluded:

An attorney's free speech rights do not authorize unnecessary resistance to an adverse ruling . . . . Once a judge rules, a zealous advocate complies, then challenges the ruling on appeal; the advocate has no free-speech right to reargue the issue, resist the ruling, or insult the judge.

In re Coe , 903 S.W.2d 916, 917 (Mo. 1995).

In Kentucky Bar Association v. Waller , 929 S.W.2d 181, 183 (Ky. 1996), the Supreme Court of Kentucky observed that the statements need not be false to pursue disciplinary action:

Respondent appears to believe that truth or some concept akin to truth, such as accuracy or correctness, is a defense to the charge against him. In this respect he has totally missed the point. There can never be a justification for a lawyer to use such scurrilous language with respect to a judge in pleadings or in open court. The reason is not that the judge is of such delicate sensibilities as to be unable to withstand the comment, but rather that such language promotes disrespect for the law and for the judicial system. Officers of the court are obligated to uphold the dignity of the Court of Justice and, at a minimum, this requires them to refrain from conduct of the type at issue here.

Thus, an attorney's speech may be sanctioned if it is highly likely to obstruct or prejudice the administration of justice. "These narrow restrictions are justified by the integral role that attorneys play in the judicial system, which requires them to refrain from speech or conduct that may obstruct the fair administration of justice." Office of Disciplinary Counsel v. Gardner , 793 N.E.2d 425, 428-29 (Ohio 2003).

Accordingly, we conclude that Slavin's in-court remarks were not protected by the First Amendment. By this holding we intend to limit an attorney's criticisms of the judicial system and its officers to those criticisms which are consistent in every way with the sweep and the spirit of the Rules of Professional Conduct. See Fla. Bar v. Ray , 797 So. 2d 556, 560 (Fla. 2001).

2004 WL 1908797 * 8-9 (footnote omitted).

The Office of Administrative Law Judges has afforded reciprocal effect to the Tennessee Supreme Court's suspension order. In the matter of Slavin , 2004-MIS-5 (ALJ Sept. 28, 2004).

[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; GIVING RECIPROCAL EFFECT TO SUSPENSION ORDER OF STATE COURT BEFORE WHICH ATTORNEY HELD LAW LICENSE

In In re Slavin , ARB No. 05-003, ALJ No. 2004-MIS-5 (ARB Nov. 30, 2005), the ARB affirmed the Chief Administrative Law Judges' order according reciprocal effect to an order of the Supreme Court of Tennessee suspending Edward A. Slavin, Jr. from the privilege of practicing law for two years. The Chief ALJ had evaluated the case under the Selling v. Radford , 243 U.S. 46 (1917) criteria. The ARB had previously also given reciprocal effect to the Tennessee Supreme Court's suspension order under Selling . Reviewing the matter under a de novo standard of review, the ARB found that Mr. Slavin's petition for review had failed to address the Sellings factors and had not proffered any error in the Chief ALJ's or ARB's application of these factors to the facts of his case.

[STAA Digest II M]
DISCOVERY; REFUSAL TO COMPLY WITH PROTECTIVE ORDER; CERTIFICATION TO FEDERAL DISTRICT COURT; SANCTION IMPOSING ATTORNEY FEES

In Coates v. Southeast Milk Institute, Inc. , 2004-STA-60 (ALJ Feb. 10, 2005), the Respondent inadvertently produced a privileged document, which the Complainant disseminated to the Respondent's clients and customers. The Respondent filed a motion for a protective order. The ALJ granted the motion, instructing the Complainant to return the document and refrain from relying on or using the document during the proceedings. The ALJ reconsidered this ruling upon motion by the Complainant, but reaffirmed his previous ruling. The ALJ later granted summary judgment to the Respondent. Subsequently, the Respondent filed a motion for sanctions against the Complainant because he failed to comply with the ALJ's protective order, and to certify the facts to a U.S. Court as permitted under 29 C.F.R. § 18.29(b). The Respondent later supplemented this motion to include the activities of the Complainant's agent.

In ruling on the motion, the ALJ observed that he had received copies of documents confirming that the Complainant continues to violate the protective order. The ALJ found that it was clear that the Complainant had no intention of complying with the protective order. The ALJ, therefore granted the Respondent's motion and certified the facts to the U.S. District Court for the Middle District of Florida, requesting that the court take appropriate actions as if the violations had occurred before that court.

The matter was referred to a U.S. Magistrate Judge who conducted a hearing and issued a Report and Recommendation. Southeast Milk, Inc. v. Coates , No. 5:05-mc-3-Oc-10GRJ (M.D.Fla. May 31, 2005). The Complainant did not challenge that he had violated the ALJ's protective order and agreed to return all copies of the privileged document to the Respondent. The Magistrate found that attorneys' fees would be imposed against the Complainant as a sanction for repeatedly disobeying the ALJ's orders, thereby causing the Respondent to move for sanction before the ALJ, and then petition the district court for enforcement. The fees imposed related to seeking the sanction before the ALJ and the proceedings before the district court.

The District Court thereafter adopted and confirmed the Magistrate's Report and Recommendation. Southeast Milk, Inc. v. Coates , No. 5:05-mc-3-Oc-10GRJ (M.D.Fla. July 5, 2005).

[STAA Digest II M]
COSTS IMPOSED AGAINST COMPLAINANT; ALJ DOES NOT HAVE THE AUTHORITY TO AWARD

In Sabin v. Yellow Freight System, Inc. , ARB No. 04-032, ALJ No. 2003-STA-5 (ARB July 29, 2005), the ARB found that that the ALJ did not have the authority to award to the Respondent $150 for the attendance of its witness on the scheduled hearing date where the Complainant withdrew his objections to the OSHA findings at the hearing. The ARB distinguished Hester v. Blue Bell Servs. , 1986-STA-11 (Sec'y July 9, 1986), because this was not a case in which the Complainant was allowed to take a voluntary dismissal conditioned on payment of the opposing parties' costs.

[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT

See Edward A. Slavin, Jr. , ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), in the Miscellaneous Whistleblower Case Digest for casenotes relating to the standards applicable to a 29 C.F.R. § 18.34(g)(3) suspension proceeding.

[STAA Whistleblower Digest II M]
ATTORNEY SUSPENSION BEFORE OALJ AND ARB; RECIPROCAL EFFECT GIVEN TO STATE SUSPENSION

In In re Slavin , ARB No. 04-172 (ARB Oct. 20, 2004), the ARB issued a Final Order Suspending Attorney From Practice Before the Administrative Review Board giving thereby reciprocal effect to a suspension order issued by the Tennessee Supreme Court on August 27, 2004. Board of Professional Responsibility of Supreme Court of Tennessee v. Slavin , 145 S.W.3d 538 (Tenn. Aug 27, 2004) (No. M2003-00845-SC-R3-BP). Both the Tennessee Supreme Court and the U.S. Supreme Court denied stays of the Tennessee suspension order. See Slavin v. Bd. of Professional Responsibility of the S. Ct. of Tennessee , No. 04A260 (U.S. Oct. 4, 2004). In In re Slavin , 2004-MIS-5 (ALJ Sept. 28, 2004), the Chief ALJ similarly suspended the attorney from practice before the Office of Administrative Law Judges based on reciprocal application of the Tennessee Supreme Court order suspending Slavin. Similar to the procedure before the ARB, the Chief ALJ had issued a Order to Show Cause, and found that "Mr. Slavin's response to the Order to Show Cause does not establish that the Tennessee proceedings were in violation of due process, were lacking in proof of misconduct, or that a grave injustice would result in giving effect to the Tennessee Supreme Court's judgment. See Selling v. Radford , 243 U.S. 46, 50-51 (1917)."

[STAA Whistleblower Digest II M]
ATTORNEY SUSPENSION FROM PRACTICE; IMPACT ON FILINGS MADE PRIOR TO SUSPENSION

In Howick v. Campbell-Ewald Co. , ARB Nos. 03-156 and 04-065, ALJ Nos. 2003-STA-6 and 2004-STA-7 (ARB Nov. 30, 2004), the ARB considered filings made by the Complainant's attorney that predated that attorney's suspension from practice before the Board.

II M Rule 11 sanctions when sections 18.34(g)(3) and 18.36 are not appropriate remedies

In Earwood v. Dart Container Corp., 93-STA-16 (ALJ Sept. 12, 1994), adopted in part and reversed in part both on other grounds (Sec'y Dec. 7, 1994), one Respondent petitioned for sanctions under Rule 11 of the Federal Rules of Civil Procedure. The ALJ noted that in Rex v. Ebasco Service, Inc., 87-ERA- 6 (Sec'y Mar. 4, 1994), the Secretary had held that sanctions pursuant to Fed. R. Civ. P. 11 did not apply to a situation which was provided for or controlled by Department of Labor Regulations. In the ALJ's view, however, the relief provided by section 18.34(g)(3) and 18.36 -- exclusion of attorneys from on ongoing proceeding and disqualification from appearing in future proceeding -- was not an appropriate relief under the circumstances before him, and therefore consideration of Rule 11 sanctions was proper. Nonetheless, the ALJ found that although the complaint appeared to have been pursued merely on strong suspicion, it was not pursued on such inadequate grounds, bad faith, or an improper purpose as to warrant imposition of Rule 11 sanctions.

The Secretary adopted the ALJ's recommendation that Complainant be found not to have established a prima facie case of discrimination by the Respondent which petitioned for Rule 11 sanctions, but only noted that the ALJ had denied the motion for Rule 11 sanctions, and did not discuss the ALJ's legal theory about those sanctions.

[ Editor's note: In Rex, the Secretary had rejected the recommendation of the ALJ to impose Rule 11 sanctions for the vexatious pursuit of a groundless action. The Secretary concluded that such conduct "would constitute dilatory, unethical, unreasonable or bad faith conduct covered by 29 C.F.R. § 18.36(b)." Rex , slip op. at 6. The ALJ's theory in Earwood is an interesting attempt to distinguish Rex .]

[STAA Whistleblower Digest II M]
ATTORNEY QUALIFICATION PROCEEDING

In In re Slavin , 2004-MIS-2 and 2004-STA-12 (ALJ Mar. 31, 2004), the Associate Chief ALJ conducted a 29 C.F.R. § 18.34(g) hearing to determine the qualifications of the Complainant's counsel based on his history of disqualifications, sanctions and admonishments before the Associate Chief ALJ, other ALJs, and other tribunals. Based on the procedure described by the concurring opinion in In re Slavin , ARB No. 02-109, ALJ No. 2002-SWD-1 (ARB June 30, 2003), the Associate Chief ALJ issued a "Notice of Judicial Inquiry" which set out in specific detail prior judicial rulings on which OALJ took official notice under 29 C.F.R. § 18.45 and on which OALJ proposed to disqualify the attorney from appearing before OALJ. The attorney did not identify in response any issue of fact on which an evidence taking hearing was required. Accordingly the Associate Chief ALJ decided the matter based on the matters over which official notice had been taken and the attorney's arguments in response to the Notice. The attorney's essential defense was that he was being sanctioned for First Amendment protected speech as an outspoken critic of the Department of Labor. The Associate Chief ALJ, however, found that such a claim was a misrepresentation -- that the attorney was being sanctioned for his disruptive actions and malfeasance during in-court proceedings where his First Amendment's rights are subject to his ethical obligations as an attorney. Moreover, the judge observed that much of the attorney's misconduct, such as neglecting appellate briefing requirements and deadlines, was not even arguably protected First Amendment speech. Based on the long history of misconduct and the failure of lesser sanctions to moderate the attorney's behavior, among other factors, the Associate Chief ALJ imposed on the attorney a five year disbarment from appearing in any matter before DOL OALJ.

[STAA Whistleblower Digest II M]
ATTORNEY DISQUALIFICATION PROCEDURE; RECUSAL

In In re Slavin , 2004-MIS-2 and 2004-STA-12 (ALJ Mar. 31, 2004), the Associate Chief ALJ gave notice that he would be conducting a Judicial Inquiry pursuant to 29 C.F.R. § 18.34(g) to determine the qualifications of the Complainant's counsel. The Complainant and his attorney filed a motion requesting that the Associate Chief ALJ recuse himself " sua sponte, " arguing essentially that the judge would be called as a witness to testify as to his own actions and had a conflict of interest as the instigator of the Judicial Inquiry. The motion was denied because (1) innuendo that the presiding ALJ has an improper motive for conducting a section 18.34(g) hearing was insufficient to establish grounds for recusal, (2) the request that the judge recuse himself "sua sponte" made it ambiguous as to whether the motion was a request or merely a suggestion, and (3) the nature of a section 18.34(g)(3) hearing is in the form of a judicial inquiry rather than an adversarial proceeding and the judge is not acting as a prosecuting "party" as in a typical adjudicatory proceeding.

[STAA Whistleblower Digest II M]
ATTORNEY DISQUALIFICATION PROCEDURE; WHETHER ATTORNEY CAN CONDUCT DISCOVERY AGAINST ALJ WHO INSTITUTED THE PROCEDURE

In In re Slavin , 2004-MIS-2 and 2004-STA-12 (ALJ Mar. 31, 2004), the Associate Chief ALJ gave notice that he would be conducting a Judicial Inquiry pursuant to 29 C.F.R. § 18.34(g) to determine the qualifications of the Complainant's counsel. The Complainant and his attorney thereafter filed a motion requesting to take the videotaped depositions of the Associate Chief ALJ, the Chief ALJ and an OALJ staff attorney. The motion was denied because it did not state the relevancy of the requested depositions. Moreover, the judge also rejected the supposition that OALJ becomes a "party" against whom discovery may be had if section 18.34(g)(3) is invoked, citing the concurring opinion in In re Slavin , ARB No. 02-109, ALJ No. 2002-SWD-1 (ARB June 30, 2003). The judge observed that if this was not the rule "an attorney could block any disciplinary proceeding by the simple expedient of naming as a witness the judge who observed the misconduct and instituted a section 18.34(g)(3) proceeding." (citations omitted).

[STAA Whistleblower Digest II M]
ATTORNEY DISQUALIFICATION PROCEDURE; GOVERNING RULES

In In re Slavin , 2004-MIS-2 and 2004-STA-12 (ALJ Mar. 31, 2004), the Associate Chief ALJ conducted a 29 C.F.R. § 18.34(g)(3) hearing to determine the qualifications of the Complainant's counsel, a member of the Tennessee bar. The judge noted that OALJ conducts hearings throughout the United States, and that attorneys appearing before OALJ are not required to be a member of the bar in the state in which the hearing is conducted. The ALJ determined that he would cite the ABA Model Rules of Professional Conduct in his decision on the section 18.34(g)(3) proceeding, citing in support the ABA rule at MRPC 85 and the corresponding Tennessee rule at TRPC 8.5, which both provide that in applying choice of law on disciplinary conduct, where the conduct is in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits govern, unless the rules of the tribunal provide otherwise. The ALJ noted that the MRPC and the TRPC did not differ significantly in regard to the conduct at issue except where specifically discussed in the decision. In assessing the appropriate sanction, the ALJ applied the ABA's Standards for Lawyer Discipline and Disability Proceedings (1992).

[STAA Whistleblower Digest II M]
FALSE STATEMENT BY ATTORNEY TO ARB; POSSIBLE SANCTIONS AND GENERAL LOSS OF CREDIBILITY

In Somerson v. Mail Contractors of America , ARB No. 03-042, ALJ No. 2003-STA-11, slip op. at 4 (ARB Oct. 14, 2003), the ARB struck Complainant's brief where the brief was not timely filed despite several extensions of time and where the brief was filed as an "omnibus" brief which consolidated the briefing for two other cases appealed to the ARB despite the ARB's order denying Complainant's motion for such consolidated briefing. In finding the brief untimely, the ARB found that Complainant's attorney made a patently false statement when he argued that he filed the omnibus brief before receiving a pertinent ARB order because the ARB order was directly referred to in omnibus brief. The ARB admonished the attorney that "[s]uch falsehoods by attorneys appearing before the Board will not be tolerated and may subject the offending attorney to sanctions. Moreover, making such false statements to the Board undermines [Complainant's attorney's] ability to effectively represent his clients because the Board will be reluctant to accept at face value any statement counsel makes that is not confirmed by independent collaborating evidence."

To the same effect Somerson v. Mail Contractors of America , ARB No. 03-055, ALJ No. 2002-STA-44 (ARB Nov. 25, 2003).

[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; USE OF JUDICIAL PROCESS TO INTIMIDATE AND HARASS

See Somerson v. Mail Contractors of America Inc. , 2003-STA-11 (ALJ Jan. 10, 2003), casenoted at V A, infra (where ALJ concluded that Complainant's attorney was more than a bystander to his client's attempts to intimidate witnesses and opposing counsel, the behavior was reported to the relevant Board of Professional Responsibility).

[STAA Whistleblower Digest II M]
ARB POLICY TO REPORT RECORDS FALSIFICATION TO THE DOT

In Poll v. R. J. Vyhnalek Trucking , ARB No. 99-110, ALJ No. 1996-STA-35 (ARB June 28, 2002), the ARB affirmed the ALJ's determination that Respondent's President's testimony as to the reason he fired Complainant was credible, despite a finding that Respondent had a policy of mandating that drivers falsify records. This was because the ALJ's credibility finding was "sufficiently specific to withstand scrutiny." The ARB, however, noted that it was referring the finding of records falsification to the Office of Motor Carriers, Federal Highway Administration, U.S. Department of Transportation.

II N Evidence; admissibility issues

[STAA Digest II N]
EVIDENCE; ADMISSIBILITY OF TAPE RECORDING

In Pittman v. Goggin Truck Line, Inc. , 96-STA-25 (ARB Sept. 23, 1997), the ALJ properly admitted into evidence a tape recording and transcript of the tape recording pursuant to both 29 C.F.R. § 18.801(d)(2)(iv), and the ALJ's discretion. The ARB noted that a tape recording is admissible pursuant to 29 C.F.R. § 18.1001-1002, that the parties whose voices were recorded testified at the hearing and had the opportunity to testify about any inaudible or incomprehensible portions of the tape, and that Respondent's manager did not deny making the statements heard on the tape.

II O Photographing or Broadcasting of Hearing

[STAA Digest II O]
REQUEST BY TELEVISION STATION TO VIDEOTAPE HEARING

In Ass't Sec'y & Haefling v. United Parcel Service , 1998-STA-6 (ALJ Apr. 23, 1999), the ALJ received an inquiry from a television station whether it would be permitted to videotape at least a portion of the hearing. The hearing was scheduled for a U.S. Tax Court courtroom located in a Federal Building and Courthouse. Complainant took no position on the matter, while the Prosecuting Party and Respondent both objected. The ALJ considered the provisions of 29 C.F.R. Part 2, Subpart B, and concluded that the regulation did not proscribe the introduction of audiovisual coverage in an STAA case absent a specific witness objection. Nonetheless, based on the local rules of the United States District Court, which clearly prohibit the use of audiovisual equipment in any courtroom located within the Federal Building and the environs of the Courthouse, and the U.S. Tax Court's stipulations for the use of Tax Court courtrooms, which also prohibits photographing or broadcasting of any proceedings, the ALJ concluded that he had no discretion to authorize the videotaping of all or any portion of the proceeding.

[STAA Digest II P]
SUMMARY DECISION; WHERE COMPLAINANT FAILED TO ESTABLISH ANY LINK BETWEEN HIS PROTECTED ACTIVITY AND HIS DISCHARGE FOR FALSIFICATION OF DRIVING LOGS, THE ALJ PROPERLY GRANTED SUMMARY DECISION

In Abbs v. Con-Way Freight, Inc. , ARB No. 12-016, ALJ No. 2007-STA-37 (ARB Oct. 17, 2012), the ARB affirmed the ALJ's dismissal of the STAA whistleblower complaint on summary decision for failure to establish a causal link between the Complainant's discharge and any STAA-protected activity. The ARB found that the ALJ should have applied the "contributing cause" standard of the 2007 amendments to the STAA to the case, which arose in 2005, but that even under that standard the complaint failed because the Complainant failed to establish any causal link between his protected activity and his discharge for falsification of his log book and payroll record. The record showed that the Complainant had admitted the falsification and that it was undisputed that the Complainant's supervisor had told him that he was free to take safety breaks when he needed them. Moreover, the Respondent presented a chart as an appendix to its motion for summary decision showing that of 41 employees who had been discharged between 2000 and May 2011, 14 of the discharges had been for falsifying driving logs.

[STAA Digest II P]
SUMMARY DECISION; MOVING PARTY MAY RELY ON PLEADINGS AND EVIDENTIARY RECORD TO SUPPORT MOTION; NON-MOVING PARTY MUST THEN GO BEYOND PLEADINGS TO SHOW EXISTENCE OF GENUINE ISSUE OF MATERIAL FACT FOR HEARING

In Menefee v. Tandem Transport Corp. , ARB No. 09-046, ALJ No. 2008-STA-55 (ARB Apr. 30, 2010), the Complainant was a driver for Respondent Tandem Transport Corp. for a dedicated accounts serving Respondent Lowe's. The Respondents filed a joint motion for summary decision, stating that the Complainant had been barred from all Lowe's locations, and that for this reason and others, the Complainant's employment had been terminated. The Respondents did not attach any affidavits to their joint motion. The ALJ informed that the Complainant that his response to the Respondents' motion must set forth specific facts showing a genuine issue of fact for the hearing, and that he had the right to file affidavits and other responsive material to set forth such facts. The Complainant's response, however, was vague and failed to point to any specific conduct that was protected under the STAA. The ARB agreed with the ALJ's conclusion that the response was vague to the point where it did not raise any genuine issue of material fact regarding whether the Complainant engaged in protected activity. The ARB agreed with the ALJ that, because protected activity is a necessary element of a STAA whistleblower complaint, the Respondents were entitled to judgment as a matter of law.

One member of the ARB wrote a concurring opinion to clarify that, pursuant to the Supreme Court decision in Celotex Corp. v. Catrett , 477 U.S. 317 (1986), a moving party cannot discharge its burden of proof by moving for summary decision without support or a mere conclusory assertion that the plaintiff has no evidence to support his case. A moving party, however, may (as in the instant case) rely on the pleadings and evidentiary record before the tribunal, and where it does, the nonmoving party must go beyond the pleadings, and by his or her own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing a genuine issue for trial.

[STAA Digest II P]
SUMMARY JUDGMENT; FAILURE OF COMPLAINANT TO CONTEST RESPONDENT'S VERSION OF THE EVENTS

In Hollenbeck v. Universal Fuel, Inc. , ARB No. 07-054, ALJ No. 2007-STA-3 (ARB Aug. 26, 2008), the Complainant did not file a response before the ALJ to the Respondent's motion for summary decision based on legitimate non-discriminatory reasons for the adverse action, and did not file an appellate brief before the ARB. Because the Respondent's version of the events was uncontested, summary decision was affirmed.

[STAA Digest II P]
SUMMARY DECISION; WHERE RESPONDENT SUPPORTS MOTION WITH EVIDENCE ON ITS NON-DISCRIMINATORY MOTIVE FOR THE ADVERSE ACTION, COMPLAINANT DOES NOT SUFFICIENTLY RESPOND MERELY BY ARGUING THAT THE TRIER OF FACT MIGHT DISBELIEVE THE RESPONDENT'S EVIDENCE AT A HEARING

In Coates v. Southeast Milk, Inc. , ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the ARB affirmed the ALJ's grant of summary decision in favor of the Respondent where the Complainant failed to come forward with a sufficient showing to counter the Respondent's presentation of sworn statements by company officials that the Complainant had been fired solely because he had posted a defamatory statement on a web site after being warned that doing so would result in termination of his employment. The Complainant's principle argument in response was that the Respondent's continuing efforts to stop him from disseminating any of his criticisms (which included a variety of alleged misconduct by the Respondent, much of which was not related to truck safety) supported the inference that he was not fired solely for making the defamatory statement, but for all of his criticisms, including his truck safety complaints. The ARB found that the argument had some logical force, but that it was not a sufficient response to the Respondent's motion for summary decision. The Board wrote: "The mere possibility that the fact finder might reject the moving party's evidence on credibility grounds is not enough to forestall summary judgment for the moving party." USDOL/OALJ Reporter at 10. Earlier in the opinion, the ARB set out the standard for granting summary decision under the OALJ Rules of Practice and Procedure. The Board wrote: "When, as in this case, the parties are in dispute about the Respondent's motive, the mere possibility that the ALJ might, and legally could, disbelieve the Respondent's evidence at the hearing is not sufficient to establish a genuine issue of fact as to the Respondent's state of mind at the summary decision stage."

[STAA Digest II P]
SUMMARY DECISION; READING A PRO SE COMPLAINANT'S FILINGS LIBERALLY TO FIND STRONGEST ARGUMENTS SUGGESTED THEREIN

In Coates v. Southeast Milk, Inc. , ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the Complainant was proceeding pro se, and had filed a response to the Respondent's motion for summary decision that was grounded on speculation rather than specific evidence. The ARB explained how it would approach the response:

While a pro se litigant must of course be given fair and equal treatment, he cannot generally be permitted to shift the burden of litigating his case to the courts, nor to avoid the risks of failure that attend his decision to forgo expert assistance. Griffith v. Wackenhut Corp. ARB No. 98-067, ALJ No. 97-ERA-052, slip op. at n.7 (ARB Feb. 29, 2000). Pro se complainants have the same burdens of production and persuasion as complainants represented by counsel. Cf. Canterbury v. Administrator , ARB No. 03-135, ALJ No. 02-SCA-11, slip op. at 3-4 (ARB Dec. 29, 2004). We will, however, read the papers of a pro se complainant liberally and interpret them to raise the strongest arguments suggested therein. Griffith, supra. ; cf. Burgos v. Hopkins , 14 F.3d 787, 790 (2d Cir. 1994).

USDOL/OALJ Reporter at 9. The ARB stated that it studied the Complainant's briefs carefully to find the strongest arguments suggested therein. Ultimately, however, it found that the response was deficient.

[STAA Whistleblower Digest II P]
SUMMARY JUDGMENT; FAILURE OF RESPONDENT TO RESPOND TO COMPLAINT, DISCOVERY, OR ALJ'S ORDERS; SANCTION OF WAIVER OF RIGHT TO PRESENT EVIDENCE OR ARGUMENT IN RESPONSE TO COMPLAINANT'S CASE

In Waechter v. J.W. Roach & Sons Logging and Hauling , 2004-STA-43 (ALJ Aug. 27, 2004), the Respondents failed to respond to the Complainant's complaint, discovery requests, and the ALJ's orders. Accordingly, the ALJ imposed the sanction of waiver of the right to present evidence or argument in response to the Complainant's case. The ALJ found no disputed issues of fact concerning the Respondent's liability under the STAA and granted summary judgment to the Complainant.

II P SUMMARY DECISION [STAA Digest II P]
SUMMARY DECISION; ERROR TO EVALUATE THE MERITS OF THE CASE

In Stauffer v. Wal-Mart Stores, Inc . , ARB No. 99-107, ALJ No. 1999-STA-21 (ARB Nov. 30, 1999), the ALJ was found to have erred in granting summary decision where he evaluated the merits of the case in his recommended decision and order. On a motion for summary judgment, "the judge does not weigh the evidence or determine the truth of the matters asserted, but only determines whether there is a genuine issue for trial. * * * If the slightest doubt remains as to the facts, the ALJ must deny the motion for summary decision." Slip op. at 7 (citations omitted). The ARB concluded that the ALJ had apparently discounted Complainant's claim that he was tired and credited the reasonableness of Respondent's policies, and stated that "[t]o do so necessarily requires a weighing of evidence that is inconsistent with a summary decision proceedings...." Slip op. at 9 (citation omitted).

[STAA Whistleblower Digest II P]
SUMMARY DECISION v. FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED

In Lane v. Roadway Express, Inc. , ARB No. 03-006, ALJ No. 2002-STA-38 (ARB Feb. 27, 2004), the ARB indicated that a motion for dismissal of a whistleblower complaint for failure to state a claim upon which relief may be granted is governed by FRCP 12(b)(6). If a party submits evidence outside the pleadings in support of a motion to dismiss, the ARB would view the motion as a motion for summary decision under 29 C.F.R. § 18.40.

[STAA Whistleblower Digest II P]
SUMMARY DECISION; ERROR TO WEIGH CONFLICTING EVIDENCE

In ruling on a motion for summary decision, the ALJ should set out the standard for summary decision and indicate whether 29 C.F.R. § 18.40(d) is being applied. An ALJ errs if in ruling on a motion for summary decision he weighs the evidence. Rather, the determination is, viewing the evidence in the light most favorable to the non-moving party, whether genuine issues of material fact exist and whether the moving party is entitled to a summary decision. Lee v. Schneider National, Inc. , ARB No. 02-102, ALJ No. 2002-STA-25 (ARB Aug. 28, 2003).

[STAA Whistleblower Digest II P]
DISCRIMINATION COMPLAINT MAY NOT BE DISMISSED SOLELY FOR FAILURE TO PLEAD FACTS SUFFICIENT TO SATISFY PRIMA FACE CASE

In a Title VII case, Swierkiewicz v. Soreman , 534 US 506, 122 S Ct 992, 152 L Ed 2d 1 (2002), the United States Supreme Court held that complaints of employment discrimination cannot be dismissed solely for having failed to plead facts to satisfy each element of the McDonnell-Douglas standard for establishing a prima facie case. The Court held that such a complaint is only required to satisfy Fed. R. Civ. P. 8(a)(2)'s requirement of a "short and plain statement of the claim showing that the pleader is entitled to relief."

The Court observed that this ruling does not prevent a Respondent from filing a motion for a more definite statement under Rule 12(e), and that meritless claims may be dealt with through summary judgment under Rule 56.

[STAA Digest II P]
SUMMARY DECISION; STANDARD OF REVIEW BY ARB IS DE NOVO

In an STAA whistleblower case, a grant of summary decision by an ALJ pursuant to 29 C.F.R. § 18.40(d), is reviewed by the ARB de novo , that is, the same standard used by the ALJ. Stauffer v. Wal-Mart Stores, Inc . , ARB No. 99-107, ALJ No. 1999-STA-21 (ARB Nov. 30, 1999).

[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 II Q]
TIMELINESS OF PETITION FOR ARB REVIEW; BEING OUT OF THE U.S. WHEN THE ALJ'S DECISION WAS DELIVERED IS NOT, STANDING ALONE, SUFFICIENT TO ESTABLISH GROUNDS FOR EQUITABLE TOLLING

In Carvajal v. Stevens Transport, Inc. , ARB No. 12-083, ALJ No. 2012-STA-19 (ARB Sept. 12, 2012), the Complainant argued that he was out the country when the ALJ's decision was delivered to his U.S. residence, and that the first thing he did upon returning to the U.S. was to request the Board to accept his untimely petition for ARB review. He also stated that his mother had become ill in Columbia and needed help bringing her to to the U.S. for treatment. The Complainant noted that his mother had died "Sunday July 2012." The Respondent countered that being out of the U.S. when the orders were delivered was not a per se basis for tolling, and noted that the Complainant had not specified the date on which he returned to the U.S. The Respondent presented three emails to show that the Complainant had been in possession of the ALJ's orders and was conducting business on pending cases against the Respondent the week prior to the due date for the ARB petition. The Respondent also presented documentation showing that the Complainant's mother had died 13 days after the deadline to file the petition and 12 days after the petition had actually been filed. The ARB agreed that not being in the U.S. when the ALJ's Orders were delivered is not in and of itself a proper basis for tolling the limitations period. Instead, a party has the burden to establish how this fact precluded the party from timely filing a petition for review or requesting an enlargement of time in which to do so. The ARB found that the Complainant failed to carry that burden in the instant case.

[STAA Digest II Q]
INTERLOCUTORY APPEAL; SCHEDULING OF LOCATION OF HEARING

In Cook v. Shaffer Trucking, Inc. , ARB No. 00-057, ALJ No. 2000-STA-17 (ARB Aug. 31, 2000), Respondent filed an interlocutory appeal of the ALJ's order regarding venue of the hearing. The case had originally been scheduled for hearing in Seattle, the city of Complainant's residence. Respondent filed a motion for change of venue based on the argument that its facility was located in Pennsylvania, it had no facilities in Washington state, and that all potential witnesses except Complainant resided in the vicinity of Harrisburg, Pennsylvania. The ALJ granted the motion, and the case was reassigned to the ALJ office in Camden, New Jersey. The newly assigned ALJ scheduled a hearing for Harrisburg, but continued it based on Complainant's inability to afford transportation to the hearing location. The ALJ informed Respondent that before the case was rescheduled for Harrisburg, it must pay for Complainant's travel and lodging and a reasonable per diem; otherwise, the case would be set for Seattle.

The ARB declined the interlocutory appeal, writing that it is particularly hesitant to interfere with the ALJ's control over the time, place and course of a hearing, and citing Hasan v. Commonwealth Edison Co. , ARB No. 99-097, ALJ No. 1999-ERA-17 (Sept. 16, 1999).

[STAA Whistleblower Digest II r]
LAW OF THE CASE; REOPENING THE RECORD ON REMAND

In Johnson v. Roadway Express, Inc. , ARB No. 01-013, ALJ No. 1999-STA-5 (ARB Dec. 30, 2002), the ARB in a prior decision had rejected the ALJ's finding that Complainant's back pay entitlement ended when he declined a position with another trucking firm, holding that Respondent had failed to prove that such job was substantially equivalent to the position Complainant held with Respondent. The ARB had remanded the case for the ALJ to determine if or when the back pay entitlement was tolled with additional instructions.

On remand, the ALJ permitted Respondent over Complainant's objections to supplement the record with evidence regarding the availability of truck driver positions. The ALJ observed that the mandate doctrine (which is a subset of the law of the case doctrine) requires the obedience of inferior courts to the decisions of superior courts, but interpreted the ARB remand order as inviting the taking of new evidence.

On review, the ARB disagreed, holding that the law of the case doctrine prohibited the ALJ from entertaining new evidence on this issue, finding that in the previous decision it had "unambiguously held that [Respondent] had failed to introduce any evidence regarding the availability of other substantially equivalent jobs, and therefore failed to prove this element of its affirmative defense of failure to mitigate." (emphasis as in original). The Board found that its remand order did require the ALJ to evaluate Complainant's job history, and to permit the introduction of evidence regarding the date of reinstatement and Complainant's efforts at employment between the time of the hearing and the reinstatement, but that "the need to fill these factual gaps did not open the door for [Respondent] to introduce evidence regarding ... an issue the Board had finally resolved."

[STAA Whistleblower Digest II S]
DUE PROCESS; THEORY OF LIABILITY FIRST RAISED IN POST-HEARING BRIEF

In Kelley v. Heartland Express, Inc. of Iowa , ARB No. 00-049, ALJ No. 1999-STA-29 (ARB Oct. 28, 2002), the ALJ had concluded that due process would be compromised if Complainant's new theories of liability, first raised in his post-hearing brief, were considered, the ALJ noting that these additional issues had not been raised and litigated by the implied consent of the parties. The ARB agreed, writing:

The ALJ's refusal to consider Complainant's new theories of liability after trial is consistent with applicable law. See Douglas v. Owens , 50 F.3d 1226, 1235-37 (3d Cir. 1995)(introduction of evidence without objection on one theory of liability did not show trial by consent or fair notice of new theory of recovery); Carlisle Equipment Co. v. U.S. Secretary of Labor , 24 F.3d 790, 794-95 (6th Cir. 1994)(due process violation where introduction of evidence did not fairly serve notice that new safety violation was entering case); Yellow Freight System, Inc. v. Martin , 954 F.2d 353, 357-59 (6th Cir. 1992)(STAA defendant deprived of due process when Secretary's decision based on theory that was not included in notice to carrier or tried by implied consent of parties).

Complainant would have had ample opportunity to advance his additional theories if he had amended his pleadings prior to the hearing below. 29 C.F.R. § 1978.106(a) and 29 C.F.R. § 18.5(e) (2002). The ALJ held that Kelley failed to do so at his peril. ... We decline to provide Complainant an unwarranted second bite at the apple by remanding his case to the ALJ for a hearing on his new theories, as requested in his brief to this Board.

[STAA Digest II T]
AMICUS BRIEF; PERMISSIBLE PURPOSES

In Stauffer v. Walmart Stores, Inc. , ARB No. 00-062, ALJ No. 1999-STA-21 (ARB Dec. 4, 2000), Complainant's attorney filed a motion for leave to file an amicus brief on the grounds that his client, against his advice, wished to file his own brief. The attorney averred that (1) he represented Complainant on a contingent fee basis before the ALJ and therefore has a significant interest in having Complainant prevail, and (2) the disposition of the case may affect the outcome of other proceedings arising under the STAA whistleblower provision in which he represents other truck drivers. Complainant's position was that he had no objection to his attorney filing a brief, but informed the ARB that "[i]f only one brief can be official for the record it must be mine!!"

The ARB denied the motion, finding that the additional brief would be inconsonant with the proper purpose of amici filings. The Board held that "[a]n amicus filing is appropriate where a party is not represented by counsel, or is represented by incompetent counsel, the amicus has an interest in the case that may be affected by the decision or when the amicus has 'unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide.' Ryan v. Commodity Futures Trading Commission , 135 F.3d 1062, 1063 (7th Cir. 1997)."

[STAA Whistleblower Digest II U]
CONTINUANCE; ABUSE OF DISCRETION STANDARD; FAILURE OF RESPONDENT TO TIMELY OBTAIN COUNSEL VERSUS REMEDIAL PURPOSES OF THE STAA

In Jackson v. Butler & Co. , ARB Nos. 03-116 and 03-144, ALJ No. 2003-STA-26 (ARB Aug. 31, 2004), the Respondent's newly retained counsel filed a motion for continuance on the eve of the hearing stating as the only reason that he needed more time to prepare. The ALJ, who had issued a notice of the trial date more than a month earlier, denied the request, weighing the Respondent's delay in obtaining counsel against the remedial purposes of the STAA ( e.g. , expedited hearing and reinstatement). On appeal, the Respondent argued that the ALJ erred in denying the request for a continuance. The ARB reviewed the ALJ's rejection of the motion under an abuse of discretion standard, and found no legal error. On review, the Respondent presented a new reason for needing the continuance -- to secure the testimony of a witness. The ARB, however, observed that the Respondent had not detailed what efforts were made to secure the witness's testimony nor made a proffer that her testimony would have contradicted the Complainant's contentions.

[STAA Whistleblower Digest II V]
CONSOLIDATION OF APPEALS BEFORE THE ARB; COMMONALITY OF EVIDENCE AND JUDICIAL AND ADMINISTRATIVE ECONOMY

In Jackson v. Smedema Trucking, Inc. , ARB Nos. 07-011, 08-052, ALJ Nos. 2005-STA-44, 2006-STA-36 (ARB Sept. 30, 2008), the Complainant filed a complaint about his discharge, which was found non-meritorious by OSHA and the ALJ. While this complaint was pending, the Complainant filed a second complaint alleging blacklisting. OSHA and a different ALJ both dismissed this complaint. On review, the ARB consolidated the appeals based on the commonality of much of the evidence, and in the interest of judicial and administrative economy.

[STAA Whistleblower Digest II V]
CONSOLIDATION OF APPEALS; SUBSTANIAL IDENTITY OF ISSUES AND COMMONALITY OF ISSUES; ADMINISTRATIVE ECONOMY

Where there was a substantial identity of the legal issues and the commonality of much of the evidence presented in two appeals before the ARB, the Board consolidated the matters for decision in the interest of judicial and administrative economy. Howick v. Campbell-Ewald Co. , ARB Nos. 03-156 and 04-065, ALJ Nos. 2003-STA-6 and 2004-STA-7 (ARB Nov. 30, 2004).

[STAA Whistleblower Digest II W]
CHOICE OF LAW; COMPLAINANT'S RESIDENCE, EMPLOYER'S BUSINESS LOCATION, PLACE WHERE ADVERSE EMPLOYMENT ACTION OCCURRED

In Howick v. Campbell-Ewald Co. , ARB Nos. 03-156 and 04-065, ALJ Nos. 2003-STA-6 and 2004-STA-7 (ARB Nov. 30, 2004), the ARB looked to both Sixth and Tenth Circuit law in reviewing an ALJ's recommendation to dismiss the complaint based on the Complainant and Complainant's attorney's failure to comply with the ALJ's orders. The Complainant resided in Ohio and the Employer was located in Michigan, both of which fall within the jurisdiction of the Sixth Circuit, while the Complainant's termination from employment occurred in Kansas, which is located within the jurisdiction of the Tenth Circuit.

[STAA Digest II x]
MOTION FOR STAY; ALJ HAS DISCRETION TO DENY MOTION PRESENTED ON EVE OF HEARING

In Sabin v. Yellow Freight System, Inc. , ARB No. 04-032, ALJ No. 2003-STA-5 (ARB July 29, 2005), the ALJ did not abuse his discretion in denying the Complainant's motion for a stay presented on the eve of the hearing because he wanted to continue the STAA action until the resolution of a state court action he intended to file (the Complainant not wanting to pay attorney's fees for two actions). The Complainant had ample notice of the hearing date and gave no reason for waiting until the eve of the hearing to present his motion.

[STAA Digest II Y]
REFILING OF CLAIM IN FEDERAL DISTRICT COURT; IMPACT OF FAILURE TO GIVE ARB 15 DAY NOTICE OR TO FILE OPENING BRIEF WITH THE ARB

In Austerman v. Behne, Inc. , ARB Nos. 10-149, 11-001, ALJ No. 2010-STA-18 (ARB Dec. 17, 2010), the ALJ issued a decision finding that the Complainant failed to establish that the Respondent had retaliated against him because of activity protected under the STAA, and the Complainant appealed to the ARB. Thereafter, the Complainant notified the ARB that he had commenced a civil action in federal court as authorized by 49 U.S.C.A. § 31105(c), for de novo review of the complaint currently pending before the Board. The Respondent filed a motion asking that the ARB dismiss the appeal for failure to prosecute as the Complainant neglected to give the Board the 15-day notice of his intent to file in district court as provided in 29 C.F.R. § 1978.114(b), and he failed to file an opening brief.

The ARB denied the Respondent's motion, stating:

The 15-day notice gives the Board the opportunity to issue a decision in a case before it is removed from DOL jurisdiction, if the issuance is imminent, or alerts the Board that the case will soon be removed, so that it will not expend its limited resources on a case that it will not have the opportunity to decide. Neither situation applies here. Our decision was not imminent, nor did we begin the decision-making process within 15 days of Austerman's notification to us that he had filed in district court.

Austerman has demonstrated his intention to prosecute his case, just not before the Board. Accordingly, we would be inclined to permit Austerman to file his opening brief, time having expired, rather than to dismiss his case for failure to prosecute as the Respondents argue. But if we did so, Austerman would simply give the Board the 15-day notice he should have given before initially filing in district court, and then he would re-file in district court. For all that effort, we would be in no different position than we are now. Accordingly, because forcing Austerman to comply with the 15-day notice requirement in this case would serve no useful purpose, and the Respondents have failed to demonstrate that Austerman has acted in bad faith to delay the proceedings, we GRANT his motion to withdraw his complaint so that he may proceed in district court.

Slip op. at 2-3. The ARB noted that had it been in a position to issue the decision within 15 days, the outcome might have been different. The ARB declined, however, to characterize the dismissal as "without prejudice" as requested by the Complainant, explaining:

Obviously, since the case before the district court is de novo, the dismissal is without prejudice in regard to the district court case. But if Austerman means to suggest that the complaint is dismissed without prejudice to re-file with the Department of Labor, should he be dissatisfied with the outcome of his district court case, we doubt whether such an action would comport with the intent or language of the statute. In any event, this question need not be addressed until, or if, Austerman attempts to re-file his complaint before the Department of Labor.

Slip op. at n.7.

[STAA Digest II Y]
REMOVAL TO FEDERAL COURT; AMENDMENT TO STAA OF 9/11 ACT PERMITTING FILING IN DISTRICT COURT WHERE DOL HAS NOT ISSUED A FINAL DECISION WITHIN 210 DAYS IS NOT RETROACTIVE IN EFFECT

In Elbert v. True Value Co. , No. 08-1222 (8th Cir. Dec. 19, 2008) (case below 2005-STA-36), the Eighth Circuit held that the amendment to the STAA found in the Implementing Recommendations of the 9/11 Commission Act of 2007 conferring jurisdiction in federal district courts when the Secretary of Labor has not issued a final decision within 210 days after the complaint was filed did not have retroactive effect. In Elbert , a six day hearing had been conducted before an ALJ, and the ALJ had issued a decision, but the final DOL order had not yet been issued when, three days after enactment of the STAA amendment, the Complainant filed an action in district court. The district court dismissed, holding that the jurisdictional amendment could not be applied retroactively because it would affect the Respondent's substantive rights. The Eighth Circuit agreed, rejecting the Plaintiff's characterization of the amendment as a procedural change that merely shifts the forum, because the amendment broadened the class of individuals who may pursue a cause of action in district courts. The court was also unpersuaded by the Plaintiff's argument that the Defendant's substantive rights were not at risk because he was not seeking punitive damages in the district court. Prior to the 9/11 Act amendments, punitive damages were not available in STAA whistleblower complaints. The court found that permitting relitigation of the claim in district court when the parties had already engaged in discovery and motion practice in the administrative case would result in additional costs to the Defendant, and that the fact that punitive damages were not previously available may have impacted its employee relations.

[STAA Digest II Z]
ALTHOUGH CONGRESS WAIVED SOVEREIGN IMMUNITY IN REGARD TO THE POSTAL SERVICE, THE STAA'S ANTIDISCRIMINATION COVERAGE DOES NOT EXTEND TO U.S. GOVERNMENT ENTITIES

In Cawthorne v. United States Postal Service , ARB No. 08-083, ALJ No. 2008-STA-28 (ARB May 7, 2009), both OSHA and the ALJ dismissed the Complainant's complaint on the ground that the United States Postal Service was immune from suit. On appeal, the ARB clarified:

Although the USPS, as a branch of the United States Government, ordinarily would be entitled to immunity from suit, that immunity has been expressly waived by the Postal Reorganization Act at 39 U.S.C.A. §§ 401(1) (West 2006), which permits the Postal Service "to sue and be sued in its official name." Thus, contrary to the ALJ's analysis pursuant to Rockefeller, there is an explicit statutory waiver of sovereign immunity in regard to the USPS. "That waiver, however, is not absolute and instead is based upon the nature of the claims asserted."

In Federal Deposit Ins. Corp. v. Meyer , 510 U.S. 471, 484 (1994), the Supreme Court explained that in determining whether an individual can recover damages against the federal government, there are "two analytically distinct inquiries." "The first inquiry is whether there has been a waiver of sovereign immunity. If there has been such a waiver, as in this case, the second inquiry comes into play -- that is, whether the source of substantive law upon which the claimant relies provides an avenue for relief."

Thus, although Congress has waived the USPS's sovereign immunity, the substantive law that Cawthorne relies upon, the STAA, provides that an "employer" is a "person" for purposes of coverage under the STAA's antidiscrimination provisions, but "does not include the Government." Because the USPS is a United States Government entity, the STAA does not provide Cawthorne an avenue for relief against the USPS. Accordingly, the ALJ's R. D. & O. dismissing Cawthorne's complaint because the USPS is a Government entity and, therefore, not covered under the STAA is AFFIRMED .

USDOL/OALJ Reporter at 4-5 (footnotes omitted).

USDOL/OALJ Law Library: STAA Whistleblower Digest, DIVISION II -- PROCEDURE

USDOL/OALJ STAA Whistleblower Digest DIVISION II -- PROCEDURE

II. Procedure

USDOL/OALJ STAA Whistleblower Digest
DIVISION II -- PROCEDURE