Priddle v. United Airlines, Inc., ARB No. 2021-0064, ALJ No. 2020-AIR-00013 (ARB Jan. 26, 2022) (per curiam)
(Decision and Order Denying Interlocutory Appeal)
INTERLOCUTORY APPEAL OF COLLATERIAL ORDER MUST BE FILED WITHIN 10 BUSINESS DAYS OF THE DATE OF THE ALJ ORDER AT ISSUE
INTERLOCUTORY APPEAL; EXCEPTIONAL CIRCUMSTANCES MERITING ARB'S INTERLOCUTORY REVIEW WERE NOT PRESENTED BASED ON CONCERNS THAT ALJ'S ORDER TO PRODUCE AVIATION SAFETY ACTION PROGRAM REPORTS WOULD DISCOURAGE PARTICIPATION IN THAT PROGRAM WHERE (1) A PROTECTIVE ORDER ENTERED IN THE CASE WOULD PREVENT IMPROPER USE OF THE REPORTS BEYOND THE LITIGATION; AND (2) THE CONCERNS ABOUT CONFIDENTIALITY WERE SPECULATIVE AND OVERSTATED
WRIT OF MANDAMUS; ARB 'S PRACTICE IS NOT TO ISSUE SUCH WRITS BECAUSE THE SECRETARY HAS NOT EXPRESSLY PROVIDED SUCH AUTHORITY TO THE ARB, AND THE ALL WRITS ACT GRANTS SUCH AUTHORITY TO COURTS AND NOT TO AN AGENCY
In Priddle v. United Airlines, Inc., ARB No. 2021-0064, ALJ No. 2020-AIR-00013 (ARB Jan. 26, 2022) (per curiam), the ARB denied Respondent's interlocutory appeal of the ALJ's order directing it to produce to Complainant certain safety complaints filed by United employees under the Federal Aviation Administration’s (FAA) Aviation Safety Action Program (ASAP), which under Respondent's internal program implementing ASAP is called the "Flight Safety Action Program": (FASP). Specifically, Complainant sought production of the reports she filed with United under the FSAP, as well as the reports filed by other United employees that were referenced to or linked in her reports. The ALJ denied Respondent's motion for reconsideration of this order, and for certification of the issue to the ARB for interlocutory review. Respondent then filed a petition for review with the ARB. The Air Line Pilots Association, International (ALPA), filed an amicus curiae brief in support of the appeal.
Collateral Order Appeal Must Be Filed Within 10 Business Days of ALJ's Order
The ARB first found that Respondent's petition was untimely. The ARB stated that collateral orders are treated as final orders for appeal purposes, which requires the ARB to apply the deadline for appeals of ordinary final orders specified in 29 C.F.R. § 1979.110(a), i.e., 10 business days of the date of the ALJ's decision. Here, Respondent filed its appeal 21 business days after the ALJ issued the order in question, and therefore the appeal was untimely.
Impact on Confidentiality If ASAP Reports Are Required to Be Produced in Civil Litigation
Recognizing that its ruling that the 10-day deadline for collateral order appeals was a novel issue that had not previously been addressed by the ARB, the ARB elected to further consider whether the ALJ's order may or should be reviewed by the ARB in its discretion at the present stage of the proceedings.
The ARB noted that interlocutory appeals are generally disfavored. The ARB stated:
- To fall within the narrow collateral order exception, the order appealed must “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.”
Slip op. at 7 (footnote omitted). The ARB noted that discovery orders are readily subject to review upon appeal of the ALJ's final order, and generally will not qualify as immediately appealable collateral orders. Respondent argued irreparable damage to the FSAP would result if it was required to produce reports of individuals other than Complainant, observing that participation is encouraged by guarantees of confidentiality. Both Respondent and the ALPA warned of the chilling effect if employees know their reports may be shared with others. The ARB, however, was not persuaded that ASAP would be irreparably imperiled or harmed by the limited disclosure at issue.
First, the ARB noted that the ALJ had entered an agreed upon protective order that would cover FSAP reports and would not cause or allow the reports to be disseminated to the public at large or to be used for an improper purpose beyond the litigation. Second, the ARB found that the confidentiality promised by the ASAP was not as universal or stringent as suggested by Respondent, and the such confidentiality does not extend to production of relevant ASAP materials in civil discovery. Third, the ARB found that pilots and other air carrier employees have other incentives to report hazards and safety concerns, even if they know or suspect that reports may be subject to discovery in a whistleblower action.
The ARB thus concluded that Respondent's concerns about the impact of the ALJ's order on ASAP was speculative and overstated, and that the matter did not present exceptional circumstance calling for the ARB to exercise its discretion to grant interlocutory review or intervention.
Writ of Mandamus
The ARB also denied Respondent's alternative request for the issuance of a writ of mandamus, noting that it had on multiple occasions explained that the Secretary has not expressly provided mandamus
authority to the Board. In a footnote, the ARB noted that Respondent had cited the All Writs Act, 28 U.S.C. § 1651, as authority for the ARB to issue a mandamus order. That ARB noted, however, that
this statute provides such authority to the "courts," and that the ARB is not a court established by Act of Congress, but rather is an agency.
McFadden v. Deutsche Bank, ARB No. 2022-0002, ALJ No. 2021-SOX-00023 (ARB Jan. 26, 2022) (per curiam) (Order of Remand)
MOTION TO DISMISS; THE FEDERAL COURT’S HEIGHTENED PLEADING STANDARDS ARE NOT APPLIED IN SOX ADMINISTRATIVE HEARINGS; DISMISSAL WITHOUT LEAVE TO AMEND IS IMPROPER UNLESS IT IS CLEAR THAT THE COMPLAINT COULD NOT BE SAVED BY AMENDMENT
MOTION TO DISMISS; ALJ FOUND MOTION UNOPPOSED AND GRANTED DISMISSAL; WHERE COMPLAINANT ARGUED ON APPEAL THAT SHE HAD NOT TIMELY RECEIVED RESPONDENT’S MOTION TO DISMISS, AND THERE WERE INDICATIONS THAT SHE OTHERWISE HAD BEEN DILIGENTLY PURSUING HER SOX COMPLAINT, THE ARB, EXERCISING ITS DE NOVO REVIEW AUTHORITY, DETERMINED THAT THIS PROCEDURAL MISHAP SHOULD NOT INTERFERE WITH A DECISION ON THE MERITS
In McFadden v. Deutsche Bank, ARB No. 2022-0002, ALJ No. 2021-SOX-00023 (ARB Jan. 26, 2022) (per curiam), the ALJ granted Respondent’s motion to dismiss Complainant’s SOX retaliation complaint. The ALJ had found the motion unopposed because Complainant had not filed a response. The ALJ, noting that the complaint to OSHA had alleged only that Respondent took action against her for filing a grievance against her manager for “unethical violations,” held that such an allegation was insufficient to establish that Complainant had engaged in activity protected under the SOX and that Complainant had failed to plead facts showing a prima facie violation. On appeal, Complainant stated that she had not received Respondent’s motion to dismiss prior to the ALJ’s ruling on it, and argued that the ALJ erred in dismissing for failure to show a prima facie case. The ARB, exercising de novo review, reversed and remanded.
The ARB observed that federal court heightened pleading standards are not applied in SOX administrative hearings. The ARB stated:
- The Board has held that ALJs should not apply the heightened pleading standard used in federal courts in SOX whistleblower complaints and that motions to dismiss SOX complaints for failure to state a claim are “highly disfavored.” The fair notice requirement is not a demanding standard. We note that complainants file their initial complaints before OSHA in an informal manner and that OSHA amplifies those complaints through investigations. While OSHA’s findings are part of the record, parties have the benefit of a de novo hearing before the ALJ. For these reasons, we have held that “ALJs should freely grant parties the opportunity to amend their initial filings to provide more information about their complaint before the complaint is dismissed,” especially when “it appears that a complaint may be saved by the allegation of additional facts.” Otherwise, complainants would have to be mindful of the pleading standards when filing their complaint with OSHA, which would be “inappropriate given the nature of the administrative whistleblower complaint process.” Accordingly, “[d]ismissal without leave to amend is improper unless it is clear, upon do novo review, that the complaint could not be saved by any amendment.”
- We therefore determine that the ALJ’s order of dismissal was not warranted. Rather, the ALJ should have provided Complainant leave to amend her complaint to satisfy the pleading requirements of a SOX claim before the OALJ. While Complainant failed to respond to the Motion to Dismiss, thus leading the ALJ to understandably conclude that the motion was unopposed, the record nonetheless demonstrates that the issue with the pleadings could be rectified with additional information.
Slip op. at 4-5 (footnotes omitted). The ARB went on to state that it was not clear why Complainant had not responded to the Motion to Dismiss and to observe that she had not suggested that she had not received other filings. Nonetheless, there was no other indication that she was not diligently pursuing her claim. The ARB observed that she had timely filed objections to the OSHA findings and appealed the ALJ’s order. Accordingly, the ARB determined that “that this procedural mishap should not interfere with the objective of facilitating a ‘decision on the merits, rather than on the pleadings or technicalities.’” Id. at 5 (footnote omitted).
Administrator, Wage and Hour Div., USDOL v. Deggeller Attractions, Inc., ARB No. 2020-0004, ALJ No. 2018-TNE-00008 (ARB Jan. 25, 2022) (per curiam) (Decision and Order of Remand)
ARB AFFIRMS FINDING THAT RESPONDENT FAILED TO PAY OVERTIME WAGES, BUT VACATES FINDING THAT RESPONDENT FAILED TO DISCLOSE HOUSING DEDUCTION IN “JOB OFFER” AND CORRESPONDEING CIVIL MONEY PENALTY, AND REMANDS FOR ALJ TO RECONSIDER THESE FINDINGS UNDER THE 2008 H-2B REGULATIONS BECAUSE THE APPLICATION WAS CERTIFIED BEFORE THE NORTHERN DISTRICT OF FLORIDA PERMANENTLY ENJOINED ENFORCEMENT OF THEM
In Administrator, Wage and Hour Div., USDOL v. Deggeller Attractions, Inc., ARB No. 2020-0004, ALJ No. 2018-TNE-00008 (ARB Jan. 25, 2022) (per curiam), the Administrator issued a determination letter, stating that the Respondent failed to substantially comply with the terms, working conditions, and offered wage requirements for unpaid overtime, as well as finding that the Respondent made improper housing deductions. Id., slip op. at 2. The Administrator assessed $150,205.77 in unpaid wages to 1 U.S. worker and 42 H-2B nonimmigrant workers, as well as $15,500 in civil money penalties. Id. Following a hearing, the ALJ lowered the amount of back wages to $81,960 and the amount of civil money penalties to $5,000. Id. at 3. Following the ALJ’s denial of the Respondent’s request for reconsideration, the Respondent appealed to the ARB. Id. The ARB affirmed in part, vacated in part, and remanded the matter. Id. at 4–20.
Applicability of 2008 H-2B Regulations: ARB Finds 2008 H-2B Regulations Apply Because the Form 9142 was Certified Before Injunction was Issued by the Northern District of Florida
The ARB rejected the Respondent’s contention that the 2008 H-2B regulations did not apply to this matter because the permanent injunction issued in Perez v. Perez, 14-cv-682, (N.D. Fla. Mar. 4, 2015), which enjoined the Department of Labor from enforcing the H-2B regulations at 20 C.F.R. Part 655, Subpart A, did not apply retroactively, and the Form 9142 in this matter was certified before the permanent injunction was issued. Id. at 4–5.
Overtime Wages: North Carolina Law Requires Time-and-a-Half Pay for Hours Worked in Excess of 45 Hours per Week, and Substantial Evidence Supported ALJ’s Finding that Respondent’s Employees Worked 50 Hours Per Week
The ARB affirmed the ALJ’s finding regarding the Respondent’s failure to pay overtime wages. Id. at 5–10. The ARB rejected the Respondent’s contention that it was not obligated to pay overtime wages pursuant to North Carolina state law because the determination letter notified the Respondent of such a violation, a state’s overtime provisions are based on the state’s minimum wage for those hours, the ALJ took judicial notice of the relevant North Carolina overtime statutes, and the Respondent’s counsel, who prepared the Form 9142, “was aware of North Carolina’s requirement to pay time and a half for hours in excess of 45 hours per week for work performed in the state.” Id. at 6–7. The ARB stated that substantial evidence supported the ALJ’s finding that the Respondent agreed to pay overtime wages based on an addendum to the Form 9142 indicating that overtime would be paid as well as the Respondent’s job order, advertisements, and hearing testimony. Id. at 7. The ARB further found that substantial evidence supported the ALJ’s finding that the Respondent’s employees worked 50 hours per week. Id. at 8–9.
- --ARB Vacates ALJ’s Finding that Respondent Failed to Disclose Housing Deduction in “Job Offer” Because the ALJ Conflated Deductions Disclosed in Job Order and Content Specified in Form 9142
The ARB vacated the ALJ’s order that the Respondent pay $81,960.00 for the total cost of the housing deduction. Id. at 10–15. The ARB rejected the ALJ’s determination that the Respondent’s failure to “disclose the housing deduction in the ‘job offer’ was a substantial violation of Section 655.22(g)(1) under the 2008 regulations because it was required by law to be disclosed in the job offer, the job offer was part of the 9142 form, but the 9142 form did not specify the deduction.” Id. at 12. In doing so, the ARB stated that the Preamble to the 2008 H-2B regulations provided that the requirement that employers submit an acceptable job order to the appropriate SWA “mandates that the employer complete and submit information regarding all of the job duties and terms and conditions of the job offer,” and that while the 2008 H-2B regulations neither define “job order” nor specify “what goes into the ‘job order,’” the Respondent disclosed the housing deduction in the SWA job order. Id. The ARB found that the ALJ discounted the significance of this disclosure based on the erroneous interpretation “that the housing deduction was required to be first disclosed in the ‘job offer’—as a condition of certification,” thus “conflating the deductions disclosed in the ‘job offer’ with the content specified in the 9142 form.” Id. The ARB noted that while Section F of the Form 9142 contains details about the “‘job offer,’ this does not mean the 9142 form itself is the ‘job offer.’ Rather, the content of the ‘job offer’ overlaps with the required content in the 9142 form.” Id.
- --ARB Distinguishes Obligations Imposed by 2008 H-2B Regulations and 2015 H-2B Regulations
The ARB agreed with the Respondent that the Form 9142 does not “specifically ask the applicant to list deductions,” which “suggest[ed] this is not where deductions were required to be disclosed.” Id. The ARB further stated that the Form 9142 “does not satisfy the purpose behind Section 655.22(g)(1), which is to provide potential employees notice of deductions.” Id. at 13. The ARB stated that aside from Section 655.22(g)(1), the 2008 H-2B regulations “omit any other obligations and assurances concerning deductions pertinent to this matter,” while 2015 H-2B regulations “squarely address the nuances at issue in this case by adding several new regulatory provisions and amendments [by] . . . specify[ing] what deductions must be identified, where they must be identified and disclosed, and what the consequences are for failing to identify and disclose them.” Id. at 13–14.
- -- ARB Remands for Consideration of 2008 H-2B Regulations and What Information was Conveyed in “Job Offer”
The ARB thus remanded this matter for the ALJ to “consider the 2008 regulations and what information was conveyed in the ‘job offer’ in light of this clarification on the distinction between the 9142 form, the ‘job order,’ and the ‘job offer,’” as well as the appropriate remedy under the 2008 H-2B regulations. Id. at 14–15.
- --ARB Vacates CMP and Remands for a Finding on Whether any Potential Failure to Disclose Housing Deduction Constituted a “Substantial Failure” and “Willful Failure”
The ARB vacated the $5,000 civil money penalty in light of its remand for the ALJ to consider whether the housing deduction was properly disclosed. Id. at 15–17. In doing so, the ARB found that the ALJ “did not articulate his analysis within the context of the regulatory language that defines ‘substantial’ with ‘willful’ and ‘willful’ with ‘reckless disregard,’” and directed the ALJ to analyze whether any failure to disclose the housing deduction constituted a “substantial failure” and a “willful failure,” as those terms are defined by 20 C.F.R. §§ 655.65(d) and (e). Id. at 17.
Statute of Limitations: 28 U.S.C. § 2462 Statute of Limitations Applies to Claims Involving Enforcement of Penalty; Overtime Claim not Time Barred, but Additional Factfinding may be Required for Housing Deduction
The ARB agreed with the ALJ’s finding that since the H-2B regulations do not specify a statute of limitations, the 28 U.S.C. § 2462 “catch-all” statute of limitations applies to claims involving enforcement of a penalty, which imposes a 5-year limitation period “from the date when the claim first accrued.” Id. at 17–18. The ARB rejected the Respondent’s contention that there could be several other statutes of limitation that could apply to this matter. Id. at 18–19. The ARB agreed with the ALJ’s determination that the overtime claim accrued in February 2013 “when the workers were scheduled to arrive” because “[t]here was not a complete cause of action until the workers arrived and received their first paycheck because it would not have been apparent that they were not being paid overtime until then.” Id. at 19–20. The ARB thus stated that the overtime claim was not time barred because the determination letter was issued on December 15, 2017. However, the ARB indicated that additional factfinding may be required with respect to the housing deduction claim because the ALJ, on remand, was instructed to determine whether the Respondent failed to disclose it in the job offer. Id. at 20.
Johnson v. Union Pacific Railroad Co., ARB No. 2021-0041, ALJ No. 2019-FRS-00005 (ARB Jan. 25, 2022) (per curiam) (Decision and Order)
PROTECTED ACTIVITY; REQUESTS TO RETURN TO WORK ARE NOT PROTECTED ACTIVITY
PROTECTED ACTIVITY; ARB ASSUMED ARGUENDO THAT ALJ WAS CORRECT IN DETERMINING THAT REPORTING OF INJURY AND ELABORATION ON THAT INJURY DURING FELA TRIAL ARE PROTECTED ACTIVITY UNDER THE FRSA
ADVERSE EMPLOYMENT ACTION; DENIAL OF REQUEST TO RETURN TO WORK IS, EFFECTIVELY, A CONSTRUCTIVE DISHARGE
CONTRIBUTORY FACTOR CAUSATION; RESPONDENT’S DECISION NOT TO ALLOW COMPLAINANT TO RETURN TO WORK BASED ON COMPLAINANT’S LAWSUIT IN WHICH HE SOUGHT AND OBTAINED RECOVERY FOR PERMANENT DISABILITY WAS NOT BASED ON COMPLAINANT’S PROTECTED ACTIVITY
In Johnson v. Union Pacific Railroad Co., ARB No. 2021-0041, ALJ No. 2019-FRS-00005 (ARB Jan. 25, 2022) (per curiam), Complainant sustained substantial work-related injuries for which he pursued a claim under the Federal Employers’ Liability Act (FELA). During the trial on the FELA claim, Complainant's attorney asserted that Complainant's injuries were permanent and that he was no longer capable of performing his job duties. Complainant's treating physician testified that he did not recommend that Complainant perform his usual work activities even if he underwent additional surgery, and that a realistic expectation of Johnson’s work capacity would range from sedentary to medium. The jury returned a verdict in Complainant’s favor awarding damages that included a substantial amount designated for future lost earning capacity and fringe benefits. Respondent satisfied a reduced judgment of $993,121.60.
Complainant continued to receive medical treatment, and about a year later a physical examiner and Complainant’s treating physician both cleared Complainant to return to work with no restrictions. Complainant’s union representative contacted Respondent’s Labor Relations Department regarding steps for Complainant to return to work. Respondent’s representative responded that, based on testimony in the FELA proceeding, Complainant was “estopped from returning to service.” Complainant then filed a retaliation complaint alleging that he engaged in protected activity pursuant to 49 U.S.C. § 20109(c)(2) when he requested to return to work based on his physician’s clearance. The ALJ dismissed the complaint.
On appeal, Complainant argued that the ALJ erred in concluding that his request to return to work was not protected activity. The ARB, however, noted that it has held that requests to return to work are not protected activity, citing Rudolph v. Nat’l R.R. Passenger Corp., ARB Nos. 2014-0053, -0056, ALJ No. 2009-FRS-00015, slip. op. at 16-18 (ARB Apr. 5, 2016).
The ALJ found that Complainant did engage in protected activity by reporting his injury and elaborating on it during the FELA trial, and that Respondent effectively terminated Complainant’s employment by refusing to allow him to return to work. The ALJ, however, found that Complainant did not establish contributory factor causation.
Two members of the ARB panel agreed with the ALJ that Respondent effectively terminated Complainant’s employment when it did not allow a return to work. One member of the ARB wrote in a concurrence that Complainant’s successful FELA suit that resulted a large award that included awards for future pain and suffering, permanent disability, future earnings, and future life care, etc., seemed to constitute a constructive resignation.
The ARB assumed arguendo that the ALJ was correct in finding that Complainant engaged in protected activity in reporting an injury and elaborating on it in a FELA trial. The ARB nonetheless affirmed the ALJ’s determination that Complainant had not established contributory factor causation. The ARB found that the record was “devoid of direct or circumstantial evidence that either Johnson’s reporting an injury or elaborating on it during the trial played any role in Respondent’s refusal to permit him to return to work.” Slip op. at 5. The ARB agreed with the ALJ that Respondent’s reliance on estoppel from a return to work based on a representation of permanent disability at the FELA trial did not indicate an animus toward Complainant’s reporting a work injury or elaborating on it during trial. The ARB noted that, although the ALJ found that collateral estoppel did not apply, this finding did not change the fact that Respondent relied on estoppel along with other factors—and not protected activity—in determining its course of action.
March v. Metro-North Commuter Railroad Co., ARB No. 2021-0059, ALJ Nos. 2019-FRS-00032, -00035 (ARB Jan. 21, 2022) (per curiam) (Decision and Order)
CONTRIBUTORY FACTOR CAUSATION; TEMPORAL PROXIMITY BASED ON ONGOING LITIGATION BEING A PERSISTENT PRESENCE IN THE MINDS OF THE ACTORS IN THE CASE
CONTRIBUTORY FACTOR CAUSATION; ALJ DOES NOT ERR IN ASSESSING SHORTCOMINGS OF AN ARBITRATION PROCEEDING THAT HAD UPHELD RESPONDENT’S DECISIONS TO IMPOSE SUSPENSIONS AND TO TERMINATE COMPLAINANT’S EMPLOYMENT; FINDING IN FAVOR OF RESPONDENT IS A RELEVANT FACTOR, BUT NOT DISPOSITIVE
CONTRIBUTORY FACTOR CAUSATION; CIRCUMSTANTIAL EVIDENCE THAT MANAGERS’ ATTITUDE TOWARD COMPLAINANT BECAME HOSTILE AFTER HE HAD FILED A FRSA RETALIATION COMPLAINT
In March v. Metro-North Commuter Railroad Co., ARB No. 2021-0059, ALJ Nos. 2019-FRS-00032, -00035 (ARB Jan. 21, 2022) (per curiam), Respondent (Metro-North) did not challenge on appeal the ALJ’s finding that Complainant (March) engaged in the protected activity of having filed a FRSA retaliation complaint in 2015. Respondent also did not challenge that the work suspensions and termination were adverse employment actions. Rather, the issues on appeal were contributory factor causation, and Respondent’s affirmative defense. In regard to the contributory factor causation issue, Respondent principally argued that the ALJ erred in finding that temporal proximity supported a finding of causation, and that the ALJ had given inadequate weight to the fact that a panel of three arbitrators had upheld the suspensions and termination,
The 2015 FRSA action was pending in federal court at the time of work suspensions in 2017 and termination from employment in 2018. The ALJ relied on temporal proximity, new hostility toward Complainant following his whistleblower complaints, and inconsistent application of company policies to find that the 2015 whistleblower complaint had been at least one factor in the suspension and termination decisions. The ALJ considered but did not attribute significant weight to the fact that the suspensions and termination had been upheld by a panel of three arbitrators (one member from Metro-North management, one union member, and one neutral member).
On appeal, Respondent argued that temporal proximity was not a factor because there had been a 20-month gap between the 2015 FRSA complaint and the events giving rise to the adverse employment actions, and because it was Complainant’s change in attitude that caused any hostility or deferential treatment. The ARB, however, found that there was a substantial basis for the ALJ “to reasonably conclude March’s ongoing litigation against the company: 1) remained a persistent presence in the minds of the actors in this case; 2) had ongoing ramifications for March; and 3) helped shape how events unfolded.” Slip op. at 12. The ARB noted that this analysis was consistent with its decision in Brucker v. BNSF Railway Co., ARB No. 2014-0071, ALJ No. 2013-FRS-00070, slip op. at 12 (ARB July 29, 2016), in which the ARB stated: “Ongoing litigation kept the protected activity ‘fresh as the events in the case unfolded’ and led to ‘continuing fallout’ for the complainant.” Id. (quoting Carter v. BNSF Ry. Co., ARB Nos. 2014-0089, 2015-0016, -0022, ALJ No. 2013-FRS-00082, slip op. at 4 (ARB June 21, 2016)). The ARB was not persuaded by Respondent’s argument that its decision in Brucker was counter to Second Circuit law, finding that each case cited by Respondent was distinguishable.
The ARB also observed that temporal proximity was only one of several factors that the ALJ had considered in regard to contributory factor causation.
Respondent also argued that the ALJ failed to properly consider the fact that neutral arbitrators had upheld the suspensions and termination. The ARB stated:
- An arbitration decision upholding an employer’s disciplinary decisions may help substantiate an employer’s explanation for its conduct, and it also may also be one piece of evidence suggesting that an employer did not discriminate or retaliate against its employee. However, arbitration decisions are not dispositive. Rather, the weight to be accorded to the arbitration decisions is left to the discretion of the tribunal, based on the particular facts and circumstances of the case.
Id. at 14 (footnote omitted). The ARB found that Respondent had not shown that the arbitration decisions must be given more weight than the ALJ accorded them.
First, the ALJ had noted that the arbitration decisions tended to weigh in Respondent’s favor, but also noted circumstances surrounding the decisions (Complainant’s absence from two of the three disciplinary proceedings, incomplete and inaccurate records presented to the arbitrators, and an error of fact in at least one of the arbitration decisions) that made them less probative than other circumstantial evidence in the record.
Second, the ARB rejected Respondent’s arguments “that the ALJ abused his discretion or committed reversible error by considering what he reasonably determined to be deficiencies or shortcomings with the arbitration decisions when determining the weight he would give them.” The ARB noted that Respondent had not challenged that Complainant’s absence at the proceedings had an impact on the records made, and that such records were in some ways incomplete and inaccurate. Moreover, the ARB stated:
- Metro-North has not pointed to any precedent that bars the ALJ, in the exercise of his discretion and judgment, from considering the accused’s absence from the disciplinary proceedings, the impact that absence had on the records, or evident flaws in the records and decisions themselves, when weighing the probative value of arbitration decisions. We find no error in the ALJ’s determination about the appropriate weight to give the arbitration decisions, and Metro-North has not provided any legal basis for us to do so.
Id. at 15 (footnote omitted). The ARB was not persuaded by Respondent’s apparent suggestion that the ALJ should have given more weight to the arbitration decisions because a union representative appeared on Complainant’s behalf. The ARB stated that union representation is a relevant consideration, but not the sole relevant consideration in assessing the fairness or probative value of arbitration decisions.
Other circumstantial evidence
The ARB noted that other circumstantial evidence supported the ALJ’s determination on contributory factor causation, such as findings, supported by substantial evidence, that Complainant’s managers began acting differently toward him because of Complainant’s litigation against the company; that Complainant credibly testified that he had not changed his behavior and that it was the managers whose attitude changed at the time of the initiation of the lawsuit; that although managers testified that Complainant’s inspections became more particular and slower after he filed the complaint, they also stated that these changes did not cause significant concern; that only one manager (who had played a key role in the earlier lawsuit and who was also responsible for each of the present disciplinary charges) “categorically insisted that March became combative, uncooperative, and unacceptably inconsistent after he sued the company.” Id. at 18. The ALJ also relied on evidence that the suspensions and termination conflicted with managers’ testimony regarding circumstances that typically warrant discipline. The ARB noted that “[a]lthough Metro-North may disagree with how the ALJ weighed this evidence or resolved factual disputes, we find no reversible error in the ALJ’s determination and conclude his findings are supported by substantial evidence.” Id. at 16.
AFFIRMATIVE DEFENSE; LACK OF EVIDENCE REGARDING SIMILARLY SITUATED EMPLOYEES DISCIPLINED FOR THE SAME REASONS AS COMPLAINANT
AFFIRMATIVE DEFENSE; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING THAT RULES THAT COMPLAINANT WAS CHARGED WITH VIOLATING WERE VAGUE AND THAT THE RECORD DID NOT CLEARLY ALIGN WITH THE CHARGES OR THE SEVERITY OF THE DISCIPLINE IMPOSED
In March v. Metro-North Commuter Railroad Co., ARB No. 2021-0059, ALJ Nos. 2019-FRS-00032, -00035 (ARB Jan. 21, 2022) (per curiam), the ALJ determined that Respondent failed to carry its heavy burden of proof on its affirmative defense, noting that Respondent had not offered evidence regarding similarly situated employees who were disciplined for the same reasons as Complainant, and that the rules Complainant charged with violating were vague and easily manipulated for retaliatory purposes. The ALJ noted that Respondent had not provided evidence defining its rules or establishing how they were enforced. The ALJ found that the record did not clearly align with the charges brought against Complainant or the severity of the discipline imposed.
The ARB stated that although Respondent argued on appeal that there were no similarly situated employees to whom Complainant could be compared, it had not offered any rebuttal evidence to the other considerations the ALJ discussed about the vagueness of the rules and their application to Complainant—considerations which the ARB concluded were substantially supported by the evidence in the record.
ALJ BIAS OR LACK OF IMPARTIALITY NOT ESTABLISHED BY HIS EXTENSIVE QUESTIONING OF WITNESSES; LEADING QUESTIONS AND COMMENTARY ON THE EVIDENCE IN THIS CASE WERE WITHIN THE ALJ’S DISCRETION IN FURTHERANCE OF THE DUTY TO SEARCH FOR THE TRUTH
In March v. Metro-North Commuter Railroad Co., ARB No. 2021-0059, ALJ Nos. 2019-FRS-00032, -00035 (ARB Jan. 21, 2022) (per curiam), Respondent (Metro-North) argued on appeal that the ALJ engaged in improper and partial questioning of witnesses and demonstrated bias in favor of Complainant. The ARB, however, found that “the ALJ’s conduct during the hearing was proper at all times, and that the ALJ did not abuse his discretion or exceed the bounds of his authority by questioning witnesses on both sides of the matter.” Slip op. at 20-21. The ARB stated:
- The applicable regulations afford ALJs broad discretion in the manner in which administrative hearings are conducted. This discretion includes the power and, where appropriate, even an obligation, to question witnesses in order develop a complete record to determine the relevant facts and identify the salient issues necessary to decide a case. Accordingly, the Board and the Secretary of Labor have long approved of ALJs extensively questioning witnesses as part of their role as factfinders and decisionmakers. Federal courts have similarly expressed that it is often appropriate for a judge, particularly in the analogous circumstance of a bench trial, to question witnesses, so long as the judge does not slip into the role of an advocate for either party. Moreover, it may be essential for an ALJ to question witnesses and take steps to clarify the record in a case involving a pro se litigant.
- We do not agree with Metro-North that the ALJ was partial or otherwise acted beyond the scope of his authority by questioning witnesses. The record demonstrates the ALJ’s questions were appropriately geared toward: 1) clarifying or supplementing testimony; 2) resolving potential or apparent conflicts in the record; and 3) exploring the parties’ claims and defenses. The ALJ’s questions often probed Metro-North’s witnesses’ testimony, and sometimes elicited testimony that Metro-North may perceive as unfavorable to its position. However, we find the ALJ’s questions were reasonable, balanced, and neutral in soliciting testimony. Likewise, although the ALJ posed leading and “hypothetical” questions and occasionally commented on the evidence, it was within his discretion and authority to do so in furtherance of his duty to search for the truth and resolve incomplete or inconsistent testimony relevant to the issues in the case before him.
Id. at 21-22 (footnotes omitted). The ARB also noted that Respondent had not made a showing of any extra-judicial source of bias and had only pointed to the ALJ’s actions during the evidentiary hearing.
Cottier v. Bayou Concrete Pumping, LLC, ARB No. 2020-0069, ALJ No. 2019-STA-00046 (ARB Jan. 18, 2022) (per curiam) (Decision and Order of Remand)
[STAA Digest V A 4 b i]
[STAA Digest V B 2 B]
PROTECTED ACTIVITY; REASONABLENESS OF WORK REFUSAL; INSUFFICIENT TEMPORARY REPAIRS TO CIRCUMVENT EMPLOYEES’ COMPLAINTS AND REFUSALS CONTRADICTS THE PURPOSE OF THE STAA
[STAA Digest V A 4 b i]
[STAA Digest V B 2 B]
PROTECTED ACTIVITY; REASONABLENESS OF WORK REFUSAL; RESPONDENT’S CULTURE OF RESPONSIVENESS TO SAFETY CONCERNS ABOUT ITS TRUCKS DOES NOT PRECLUDE A COMPLAINANT FROM HAVING A REASONABLE APPREHENSION OF SERIOUS INJURY IN A PARTICULAR INSTANCE
[STAA Digest IV G]
CONTRIBUTORY FACTOR CAUSATION; RESPONDENT’S DIRECT OR CONSTRUCTIVE KNOWLEDGE BASED ON THE FACTS OF THE CASE
In Cottier v. Bayou Concrete Pumping, LLC, ARB No. 2020-0069, ALJ No. 2019-STA-00046 (ARB Jan. 18, 2022) (per curiam), Complainant worked for Respondents as a concrete pump operator, mostly running large 40 meter and 61 meter boom trucks. These trucks, due to their size and complex nature, often had mechanical problems. Complainant often experienced, and reported, problems with the trucks. Complainant was driving the 61m truck on the Interstate to New Orleans when its drive lines broke loose, and he lost control of steering, air, and brakes. This resulted in about 60 gallons of hydraulic fluid to spill. Complainant described the incident as terrifying. Prior to this breakdown, Complainant had called Respondent’s owner and sent a video of the power takeoff light blinking. Respondents made extensive repairs to the truck following the breakdown. A few months later, the truck’s driveshaft and hanger bearing broke down while on the Tulane University Campus. Unable to reach Respondent’s owner, Complainant reported the problem to the dispatcher and asked the site contractor if he could leave the truck on site. Another employee contacted the owner and reported the mechanical breakdown. The truck stayed on the campus over the weekend and was repaired the following Monday. In addition to these specific incidents, Complainant experienced other continuous problems which he would write up in weekly inspection reports. Often, the problems would not be fixed, or if a repair was attempted, it would fail again.
Following the Tulane breakdown, Complainant informed the dispatcher that he would not drive the 61m truck again and began to decline 61m dispatches. At some point, the dispatcher informed Respondent’s owner of Complainant’s refusal to operate the 61m truck, although she testified that she told the owner that she did not know why Complainant was refusing. The owner called Complainant and asked him to run the 61m. Complainant testified that he told the owner than he did not have enough help, that the truck was not safe, and that it was eventually going to kill somebody. Complainant stated that the owner assured him that the truck was fixed and safe to operate. Complainant, however, still refused to operate it. The owner, in contrast, testified that Complainant never mentioned safety concerns or mechanical issues with the 61m truck. After discussing Complainant’s work refusal with his business partner, Respondents terminated Complainant’s employment. About 4 days after Complainant’s refusal to drive, and about 10 days after the Tulane breakdown, the truck was taken to a third-party mechanic who discovered that the driveshaft was too long, causing the truck to vibrate and burn through the hanger bearing. This mechanic installed a correct sized driveshaft. Following a hearing, the ALJ dismissed the STAA complaint. The ARB reversed the ALJ’s conclusions on protected activity and contributory factor causation, and remanded for the ALJ to address Respondents’ affirmative defense.
Protected Activity – Work Refusal
The ARB reversed the ALJ’s finding that Complainant did not have a reasonable apprehensive of serious injury and his work refusal was not protected under 49 U.S.C. § 31105(a)(1)(B)(ii), finding that the ALJ’s determination was not supported by substantial evidence. The ALJ found the truck had been repaired and was safe to operate, at least on the short term of the job that had been refused. The ARB found that this was not a reasonable finding by the ALJ, noting that the truck had needed repairs to the driveshaft and hanger bearings only days after the refusal, and that these were the same repairs that Respondent had continually failed to fix over a 5-month period. The ARB stated:
- A vehicle that is only operational in ideal conditions or for short term use and, fortunately, does not breakdown on a specific trip, is not “safe” to operate. The purpose of the STAA is to promote highway safety and protect employees from retaliatory discharge. Any finding that encourages employers to implement shoddy repair practices or insufficient, temporary fixes in order to circumvent employees’ complaints and refusals contradicts the purpose of the STAA.
Slip op. at 9 (footnote omitted).
Although the ALJ found that the 61m truck’s previous incidents would give a reasonable driver cause for concern about safety, the ALJ discredited Complainant’s reasonable belief by focusing on Respondents’ response to mechanical problems. The ARB noted agreement that the record supported the ALJ’s determination that “Respondents considered safety a priority, instituted preventative maintenance measures, and properly addressed mechanical and safety issues, including regularly taking unsafe equipment out of operation.” Slip op. at 10, quoting ALJ’s decision. The ARB found, however, that this determination did not preclude Complainant’s reasonable apprehension of operating the truck on the date in question. The ARB stated:
- Respondents can be both safety conscientious and also own a truck that may be occasionally unsafe to operate; neither is solely dependent on the other. While an employer’s reputation or business practices may provide some inference as to a vehicle’s condition, such information does not outweigh the actual evidence surrounding a particular vehicle or set of circumstances.
Id. at 10. The ARB then noted evidence in the record indicating that, under the specific circumstances, it had been unreasonable to hold Complainant accountable for not knowing the truck’s mechanical state, when Respondent’s also clearly did not know.
The ARB acknowledged that a complainant must have sought from the employer, and been unable to obtain, correction of the hazardous safety or security condition in order for a refusal to be protected. The ARB, however, disagreed with the ALJ’s finding that Complainant failed to seek and was unable obtain correction of the dangerous condition. The ARB distinguished the case cited by Respondents, Gatto v. General Utilities, in which the Board affirmed an ALJ’s decision that a driver’s refusal to operate a vehicle was unreasonable. Although there were similarities in the facts of Gatto and the instant case, in the instant case the problems and the work refusal were much closer in time, and prior attempts to repair the truck had failed.
Contributory Factor Causation - Respondent’s Direct or Constructive Knowledge
The ARB also found that the ALJ erred in finding that the contributory factor causation element of a FRSA complaint was not established because the persons who were involved in firing Complainant were not aware that his work refusal was based on safety concerns.
The ALJ focused on a single text message to find that Respondent’s owner was aware of Complainant’s work refusal, but believed it was due to scheduling frustrations over lack of hours due to a hand injury. The ARB agreed that in isolation, no safety implications were addressed in that text message, but noted the context of other text messages, four of which were sent to the dispatcher and showed that the work refusal included safety concerns. The ALJ determined that the owner was unaware of the safety concerns based on the owner’s testimony, and Complainant’s inability to prove what messages had been forwarded to the owner by the dispatcher. The ARB found that these findings ignored that the owner had been informed of the situation with the Tulane breakdown and the subsequent repair. The ARB was skeptical that the owner had knowledge of only one of the texts to the dispatcher, citing testimony that the owner oversaw actions concerning messages on safety and mechanical problems on specific trucks. The ARB noted that Respondent had not called the dispatcher to explain inconsistency about forwarding of text messages. Finally, the ARB noted that the ALJ had not made credibility determinations among contradicting witnesses, and thus no deference was owed to the ALJ on credibility.
The ARB noted that even if the ALJ was correct that the owner did not have actual knowledge of Complainant’s safety concerns, the record established that Respondents at a minimum had constructive knowledge of such. The ARB found: “In such a business structure where a dispatcher regularly receives safety complaints, it is unlikely that a dispatcher picks and chooses which complaints and refusals are forwarded to ‘upper’ management.” Id. at 16. The ARB noted that it was not “create[ing] a bright-line rule for all complaints or refusals between drivers and dispatchers or even more generally, for employees and managers,” but was making its determination based on the specific facts of the case where the company’s size and culture, and the communications procedures it established, showed that the ALJ’s finding was not supported by substantial evidence, and that Respondents had knowledge that Complainant’s refusal was due to safety concerns. This established contributory factor causation.
Reversals and Remand
In sum, the ARB revered the ALJ’s findings on protected activity, the employer’s knowledge of the protected activity, and contributory factor causation. The ARB remanded the case to the ALJ for a determination on the same-action defense.
Holovatyuk v. EM Cargo, LLC, ARB No. 2021-0046, ALJ No. 2020-STA-00071 (ARB Jan. 12, 2022) (per curiam) (Decision and Order)
[STAA Digest V A 4 c iii]
PROTECTED ACTIVITY; HOURS OF SERVICE; E-MAIL CONTAINING REFERENCE TO 34-HOUR RULE WAS INSUFFICIENT TO ESTABLISH PROTECTED ACTIVITY WHERE, IN CONTEXT, THE E-MAIL WAS ABOUT COMPLAINANT’S REQUEST FOR TAX INFORMATION TO PROVE THAT HE WAS AN EMPLOYEE RATHER THAN AN INDEPENDENT CONTRACTOR, AND THE REFERENCE TO THE 34-HOUR RULE COULD NOT BE DISCERNED AS A SAFETY COMPLAINT TO A SUPERVISOR
[STAA Digest IV G]
[STAA Digest IV H]
CONTRIBUTORY FACTOR CAUSATION AND AFFIRMATIVE DEFENSE; REFERENCE TO 34-HOUR RULE IN AN E-MAIL WAS NOT SHOWN TO HAVE BEEN A CONTRIBUTING FACTOR TO COMPLAINANT’S TERMINATION AS INDEPENDENT CONTRACT DRIVER AND A LATER POOR REFERENCE, WHERE THE PARTIES WERE ALREADY CONTEMPLATING TERMINATION OF THE DRIVING AGREEMENT; WHERE THE REFERENCE TO THE RULE WAS BRIEF AND RELATED TO A REQUEST FOR TAX INFORMATION; WHERE COMPLAINANT HAD BEEN ARGUMENTATIVE AND DISRESPECTFUL; AND WHERE COMPLAINANT’S ACTION OF EFFECTIVELY REMOVING HIS ASSIGNED RENTAL TRUCK FROM SERVICE DURING A WEEK-LONG VACATION CAUSED HARM TO RESPONDENT’S BUSINESS; THESE FACTORS ALSO ESTABLISHED RESPONDENT’S AFFIRMATIVE DEFENSE BY CLEAR AND CONVINCING EVIDENCE
In Holovatyuk v. EM Cargo, LLC, ARB No. 2021-0046, ALJ No. 2020-STA-00071 (ARB Jan. 12, 2022) (per curiam), Complainant was working under an independent contractor agreement with Respondent that included a truck rental agreement. Complainant ended a route at his home in Florida in order to take a one-week vacation. Complainant, however, had not informed Respondent of his intent to take the vacation. The consequent communications between Complainant and Respondent were contentious. Complainant at one point sent Respondent’s owner an e-mail stating:
- I’m requesting EM Cargo, LLC identification number that I need to fill out IRS Form SS-8 to establish my employment status in company. This issue arose, when I got info about company’s different attitude to drivers. I have to work 4 weeks without days off, 34-h ‘restarts,’ can’t refuse to haul cheap loads (any load) an can get only 3.5 days of home time…I came home on 10/14/19 and on 10/17/19 you start to send me messages, trying to force me put on the road from 10/18/19, threatened to take back truck, despite on contract provision…So, definitely, you treat me as employee and this will be a question for IRS, DOL, etc.
Slip op. at 3 (footnote omitted). When Complainant eventually returned the truck to Respondent’s facility in Chicago, Respondent terminated the driving agreement. Later, when receiving a reference form from a third-party recruiting company, Respondent’s owner selected scores of 2 or 3 out of 5; stated that he would not recommend Complainant for a similar role; and stated that Complainant left the company due to poor communication skills. Complainant filed a STAA complaint with OSHA alleging that Respondent terminated him in retaliation for refusing to drive over authorized hours of service.
The ALJ considered Complainant’s contention that his e-mailed reference to the 34-hour restart rule was protected activity. See 49 C.F.R. § 395.3 (driver must be off duty for 34 or more hours after driving 70 hours within eight consecutive days). Finding no evidence of a recent 34-hour violation, the ALJ concluded that the reference to the 34-hour rule in the e-mail was a general comment that Respondent was not allowing him to take time off, and that in context, the e-mail was too vague to establish that Complainant was making a safety complaint. The ALJ thus found that Complainant had not proved that he engaged in protected activity.
The ALJ went on to consider whether Complainant’s reference to the 34-hour rule in the e-mail contributed to the adverse employment actions of termination and a poor reference. The ALJ found temporal proximity to the termination, but that other factors undercut the weight of that circumstance. The ALJ found that both parties had already contemplated ending the driving relationship, that the reference to the 34-hour rule was referenced only once in an e-mail requesting tax information, and that Respondent reasonably needed to know about Complainant’s vacation. The ALJ thus found that Complainant did not prove that protected activity contributed to the termination.
As to the reference check, the ALJ noted less temporal proximity, and that Respondent had only mentioned Complainant’s communication skills, and not the protected activity, as a reason for the termination. The ALJ found the low scores in the reference check understandable given Complainant’s actions. The ALJ thus found that Complainant did not prove that protected activity contributed to the poor evaluation.
The ALJ also found that Respondent met its burden for an affirmative defense, finding that Respondent’s decision to fire Complainant “was reasonable and expected given the loss of revenue by not having the truck on the road.” Id. at 7 (footnote omitted).
On appeal, the ARB affirmed the ALJ’s determination that Complainant failed to establish that he engaged in protected activity. The ARB noted that the purpose of the e-mail was to seek tax information; that the reference to the 34-hour rule was vague and part of list of other issues; that it was uncertain whether Complainant was contending that Respondent forced him to violate the rule, or only that he worked so frequently that he was required to take rest time; and that Complainant did not discuss the 34-hour rule any further with Respondent’s owner, making it impossible to discern whether he was making a safety complaint to a supervisor.
The ARB also found that the ALJ’s determinations that Complainant failed to establish contributory factor causation, and that Respondent established its affirmative defense, were supported by substantial evidence. The ARB wrote:
- . . . Complainant’s behavior, including failing to tell his employer he was taking a week off, keeping a truck that could have been used by another driver, and being argumentative and disrespectful toward his employer, reasonably caused Respondent to end the employment relationship and give his work performance low ratings. While Complainant may expect more leeway in his work as an independent contractor, his actions caused harm to the business that could have been easily prevented with basic communication with his employer.
Id. at 9-10 (footnote omitted).
Phox v. The Savoy at 21c, ARB No. 2021-0057, ALJ No. 2019-FDA-00014 (ARB Jan. 6, 2022) (per curiam) (Order Dismissing Petition for Review)
TIMELINESS OF PETITION FOR ARB REVIEW; A TIMELY MOTION FOR RECONSIDERATION TOLLS THE START OF THE APPEAL PERIOD UNTIL ENTRY OF AN ORDER DENYING OR GRANTING THE MOTION; HOWEVER, WHERE THE MOTION FOR RECONSIDERATION WAS NOT TIMELY FILED, THE APPEAL PERIOD IS NOT TOLLED
TIMELINESS OF PETITION FOR ARB REVIEW; THE MERE FACT THAT THE PARTY WAS PROCEEDING PRO SE DOES NOT EXCUSE THAT PARTY’S FAILURE TO EFFECT A TIMELY APPEAL
In Phox v. The Savoy at 21c, ARB No. 2021-0057, ALJ No. 2019-FDA-00014 (ARB Jan. 6, 2022) (per curiam), Complainant filed a Food Safety Modernization Act employee protection complaint. The ALJ issued a “Decision and Order Denying Complaint” on May 25, 2021. On June 9, 2021, Complainant filed with the ALJ a “Motion to Stay and Motion to Reconsider or Motion for Extension of Time." On July 14, 2021, the ALJ denied the motions, finding that the motion for reconsideration was not timely filed.
On July 28, 2021, Complainant filed a petition for review with the ARB. The issues for appeal identified in the petition related solely to the ALJ's May decision, and did not address the July denial of reconsideration. The ARB issued a briefing schedule, to which Complainant replied by filing a motion requesting the ARB to accept his petition as the opening brief. Respondent then filed a motion to deny the petition on the ground that Complainant did not timely appeal the ALJ’s May decision.
The ARB found that Complainant's petition was of the ALJ's May decision only, and that it was not timely because it was not filed within 14 days of the date of the ALJ's decision as required by 29 C.F.R. § 1987.110(a). The ARB noted that under the Federal Rules of Appellate Procedure, the filing of a timely motion for reconsideration tolls the start of the appeal period until the entry of the order granting or denying the motion—but that an untimely motion for reconsideration does not delay the start of the appeal period. Here, the ALJ denied the motion for reconsideration as untimely because it had been filed more than 10 days after service of the decision as required by 29 C.F.R. § 18.93. The ARB thus determined that "the appeal period began when the ALJ issued her May 25, 2021, decision, and Complainant’s Petition for Review of the decision, filed July 28, 2021, is therefore untimely." Slip op. at 3. Accordingly, the ARB dismissed the petition for review.
In a footnote the ARB stated that Complainant had seemingly addressed the timeliness issue by contending that she made an effort to comply with the procedural rules while acting pro se. The ARB was not persuaded by this argument, noting that a pro se party is given a degree of latitude, but when that party fails to comply with administrative procedures, it is a risk of failure that attended the party's decision to forgo expert assistance.