Administrative Review Board Decisions
The following case summaries were created by the Administrative Review Board staff.
Administrator, Wage and Hour Div., USDOL v. Graham and Rollins, Inc., ARB No. 2021-0047, ALJ No. 2018-TNE-00022 (ARB Jan. 4, 2023) (Order Denying Motion to Extend Time to File Petition for Secretarial Review)
MOTION FOR EXTENSION OF TIME TO FILE PETITION FOR SECRETARIAL REVIEW; THE BOARD LACKS AUTHORITY TO GRANT AN EXTENSION OF TIME TO FILE PETITION FOR SECRETARIAL REVIEW.
In Administrator, Wage and Hour Div., USDOL v. Graham and Rollins, Inc., ARB No. 2021-0047, ALJ No. 2018-TNE-00022 (ARB Jan. 4, 2023), the ARB denied a Motion for Extension of Time to File Petition for Secretarial Review because it exceeds the Board’s authority as set forth in the Secretary’s Delegation of Authority and Assignment of Responsibility to the Administrative Review Board.
Shah v. Albert Fried & Co., ARB No. 2020-0063, ALJ No. 2019-SOX-00015, (ARB Jan. 31, 2023) (Order Denying Second Motion for Reconsideration)
SECOND MOTION FOR RECONSIDERATION; SECOND MOTION FOR RECONSIDERATION FAILED TO DEMONSTRATE SUFFICIENT GROUNDS FOR THE BOARD TO RECONSIDER ITS DECISION
In Shah v. Albert Fried & Co., ARB No. 2020-0063, ALJ No. 2019-SOX-00015, the ARB denied Complainant's Second Motion for Reconsideration. The ARB will reconsider a decision and order only under limited circumstances. These circumstances include whether the movant has demonstrated: (i) material differences in fact or law from those presented to the ARB of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the ARB's decision, (iii) a change in the law after the ARB's decision, or (iv) failure to consider material facts presented to the ARB before its decision. Complainant did not present relevant arguments that fall within any of the limited circumstances under which the ARB will reconsider its decisions.
Smith v. Akal Express, Inc., ARB No. 2022-0041, ALJ No. 2021-STA-00028 (ARB Jan. 12, 2023) (Order Regarding Pending Motions)
MOTION TO SUPPLEMENT THE RECORD; RESPONDENTS FAILED TO DEMONSTRATE THAT THE NEW MATERIALS THEY WISHED TO INTRODUCE COULD NOT HAVE BEEN DISCOVERED WITH REASONABLE DILIGENCE OR WERE NOT READILY AVAILABLE PRIOR TO CLOSING OF THE RECORD BELOW
In Smith v. Akal Express, Inc., ARB No. 2022-0041, ALJ No. 2021-STA-00028 (ARB Jan. 12, 2023), the ARB denied Respondents' Motion to Supplement the Record. Respondents contended that the record developed before the ALJ should be supplemented with documents from a separate federal court case involving Complainant and other "documents containing non-confidential evidence of . . . [Complainant] discussing on his public Facebook page issues highly relevant to this matter." Respondents argued that the record should be supplemented with these materials because: (1) they demonstrated Complainant's "history of orchestrating and masterminding these types of complaints, deceiving unsuspecting employers, DOL investigators, and courts, with the goal of obtaining a financial windfall;" (2) they depicted Complainant "boasting—while using derogatory, foul, harassing, and obscene language consistent with [the employer's] account of his action his employment—that he plotted and masterminded this action against [the respondents]," and contradicted his allegations and proof; (3) under the principles of equity or fairness, the "extraordinary circumstances" of this case merit the record to be supplemented; and (4) the ARB has the discretion to consider new evidence that questions the legal basis for Complainant's complaint and veracity of his evidence, set aside the ALJ's orders, and remand the case to the ALJ for a new hearing.
The ARB relied on the standard contained in the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, which provides that "[n]o additional evidence may be admitted unless the offering party shows that new and material evidence has become available that could not have been discovered with reasonable diligence before the record closed." First, the ARB determined that Respondents failed to demonstrate that the new materials they wished to introduce into the record could not have been discovered with reasonable diligence before the record closed. Respondents did not specifically address this point. Instead, they appeared to claim that they did not previously discover the materials because they did not participate in the OALJ proceedings. Respondents claimed that the employer's general manager believed that the matter was over following OSHA's dismissal and that the employer's owner traveled to India and remained there because of illness and circumstances related to the COVID-19 pandemic. The ARB found these arguments unpersuasive. The ARB noted that it has consistently held that "ignorance of the law is neither a sufficient basis for granting equitable tolling nor by itself an independent ground for establishing entitlement." Moreover, although the ARB acknowledged that the employer's owner traveled to India, the record reflected that the OALJ's Notice of Assignment and Preliminary Order was issued before she left the country and, thus, she should have been aware of the proceedings below.
Second, the ARB determined that the documents were readily available prior to the closing of the record. The Tenth Circuit Court of Appeals issued its decision in the separate federal court case on June 12, 2019, and Complainant's Facebook posts that Respondents sought to introduce were dated between April 28, 2020, and December 22, 2021. The record closed on January 16, 2022. Therefore, the ARB found that both sets of documents were available to public access via the internet prior to the record closing.
FRAUD ON THE TRIBUNAL; THE BOARD LIMITS INTERPRETATION OF "FRAUD ON THE TRIBUNAL" TO MEAN "FRAUD WHICH IS DIRECTED TO THE JUDICIAL MACHINERY ITSELF"
In Smith v. Akal Express, Inc., ARB No. 2022-0041, ALJ No. 2021-STA-00028 (ARB Jan. 12, 2023), the ARB denied Respondents' request to consider new evidence, set aside the ALJ's decision, and/or remand the case to the ALJ for a new hearing based on alleged fraud on the ALJ committed by Complainant. According to Respondents, Complainant's Facebook posts demonstrated his efforts to undermine the integrity of the OALJ proceedings and appeal before the ARB.
Respondents relied on Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (May 15, 1944), a case in which the U.S. Supreme Court held that an appellate court could vacate its own judgment entered at a prior term and direct vacation of a lower court's decree upon proof that fraud was perpetrated upon the court by a successful litigant. However, the ARB observed that since Hazel-Atlas Glass Co., courts have limited their interpretation of "fraud on the tribunal." Specifically, the ARB referred to the decision of the Tenth Circuit Court of Appeals in Bulloch v. U.S., 763 F.2d 1115 (10th Cir. 1985), which interpreted "fraud on the tribunal" to mean "fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury." The ARB determined that Complainant's Facebook posts did not meet this restrictive interpretation and/or Respondents failed to include posts that would meet this standard.
SCOPE OF RECORD BEFORE THE ARB; ARB REVIEW IS GENERALLY LIMITED TO THE RECORD THAT WAS BEFORE THE ALJ
In Smith v. Akal Express, Inc., ARB No. 2022-0041, ALJ No. 2021-STA-00028 (ARB Jan. 12, 2023), the ARB granted Complainant's motion to strike evidence Respondents supplied to the ARB that was not part of the record before the ALJ. The ARB stated that its review is generally limited to the record that was before the ALJ when the case was decided. Having previously denied Respondents' Motion to Supplement the Record, the ARB struck the new evidence from the record and limited its review to the record before the ALJ.
Smith v. Franciscan Physician Network, ARB No. 2022-0065, ALJ No. 2020-ACA-00004 (ARB Jan. 13, 2023) (Order Denying Motion to Dismiss and Reestablishing Briefing Schedule)
TIMELINESS OF PETITION FOR REVIEW; EQUITABLE TOLLING APPROPRIATE WHERE PRO SE COMPLAINANT NARROWLY MISSED APPEAL DEADLINE BECAUSE OF A TIME ZONE DIFFERENCE
In Smith v. Franciscan Physician Network, ARB No. 2022-0065, ALJ No. 2020-ACA-00004 (ARB Jan. 13, 2023), Respondent moved to dismiss Complainant's Petition for Review, arguing that it was not filed with the ARB by the applicable deadline. The ARB Rules of Practice and Procedure, 29 C.F.R. Part 26, dictate that electronic filings must be submitted to the ARB by 11:59:59 p.m. Eastern Time on the due date to be considered timely. Complainant filed her Petition using the ARB's Electronic Filing System at 1:47 a.m. Eastern Time the day after it was due.
Although Complainant's Petition was untimely, the ARB determined that the circumstances of the case justified equitably tolling the appeal deadline and accepting Complainant's Petition. Complainant filed her Petition from her home in California. Accounting for the time zone difference, Complainant's Petition was filed at 10:47 p.m. local (Pacific) time on the due date. Although Complainant erroneously failed to account for the ARB's Eastern Time filing requirement and the time zone difference, the ARB recognized that Complainant, who was newly pro se, may not have intuited that she needed to account for a time zone difference when filing her appeal. The ARB observed that Notice of Appeal Rights accompanying the ALJ's decision did not cite or refer to the ARB's Rules of Practice and Procedure or otherwise indicate that Complainant had to account for her time zone to comply with the filing deadline. The ARB also noted that Complainant did not unreasonably delay filing or otherwise fail to act diligently to preserve her appeal rights. Accordingly, in the unique circumstances of the case, the ARB concluded that equitable tolling was appropriate.
Shanker, Chief, Div. of Enforcement, OLMS, USDOL v. Patent Office Professional Association, ARB No. 2023-0001, ALJ No. 2021-SOC-00002 (ARB Jan. 23, 2023) (Order Denying Respondent's Motion for a Temporary Stay of the Administrative Review Board's Remedial Order)
STAY OF REMEDIAL ORDER; MOTION TO STAY REMEDIAL ORDER AND POSTPONE NEW ELECTION UNDER LMRDA DENIED
In Shanker, Chief, Div. of Enforcement, OLMS, USDOL v. Patent Office Professional Association, ARB No. 2023-0001, ALJ No. 2021-SOC-00002 (ARB Jan. 23, 2023), the ARB denied Respondent's Motion for a Temporary Stay of the Administrative Review Board's Remedial Order. Previously, in Shanker, Chief, Div. of Enforcement, OLMS, USDOL v. Patent Office Professional Association, ARB No. 2023-0001, ALJ No. 2021-SOC-00002 (ARB Nov. 16, 2023), the ARB determined that Respondent violated the LMRDA, CSRA, and SOC regulations when it failed to comply with a challenger-candidate's reasonable request to distribute campaign literature in advance of Respondent's election for union President. Accordingly, the ARB ordered Respondent to conduct a new election for union President under the supervision of the Office of Labor Management Standards within 120 days. Respondent subsequently moved to stay the remedial order and postpone the ordered election until November 2023, when the union was scheduled to conduct its next regular triennial election for several positions, including President.
Although the SOC regulations permit the ARB to stay remedial orders, the ARB determined a stay was not appropriate in the circumstances of the case. The ARB rejected Respondent's argument that conducting successive elections would likely trigger a drop-off in participation in the second election. The remedial election ordered by the ARB and the regular triennial election to be conducted in November 2023 would be conducted eight months apart. The ARB noted that Respondent offered no evidence to support its claim that it was likely to suffer a drop-off in voter participation with a gap of this length between the elections and rejected the argument as speculative.
The ARB also rejected Respondent's argument that the purposes of the LMRDA and CSRA would be better served by staying the remedial election so that OLMS could supervise Respondent's regular election of a full slate of officers and delegates, rather than just supervising an interim, remedial election solely for the office of President. The ARB stated that, in the circumstances of this case, the LMRDA's and CSRA's purposes of guaranteeing and promoting confidence in free, fair, and democratic elections would not be better served by deferring the remedial election. The ARB noted that deferring the remedial election would ensure the incumbent served at least eight additional months, constituting nearly one-fourth of the position's full term. The ARB stated that "[d]uring this period, the incumbent could further entrench in the position and would continue to direct the union's affairs under the cloud of the tainted election and LMRDA violation." The ARB added that "[d]elaying the remedial election also risks granting the incumbent the inherent power, through the imprimatur of the office to which the incumbent may not be entitled, to influence the next election, not only for the office of President, but also for other offices and positions on the ballot."
Sharma v. Amazon Web Services, Inc., ARB No. 2023-0017, ALJ No. 2020-LCA-00006 (ARB Jan. 26, 2023) (Order Dismissing Petition for Interlocutory Review)
INTERLOCUTORY REVIEW; ALJ'S EVIDENTIARY RULINGS DID NOT CONSTITUTE FINAL ORDER; PROSECUTING PARTY DID NOT ESTABLISH GROUNDS FOR INTERLOCUTORY REVIEW UNDER THE COLLATERAL ORDER EXCEPTION
In Sharma v. Amazon Web Services, Inc., ARB No. 2023-0017, ALJ No. 2022-LCA-00006 (ARB Jan. 26, 2023), the ARB dismissed the Prosecuting Party's petition for interlocutory review of the ALJ's evidentiary rulings. Because the ALJ's evidentiary rulings did not constitute a final ruling as to the merits of the Prosecuting Party's case, the Prosecuting Party's petition was interlocutory. Although the ARB's delegated authority includes the consideration and disposition of interlocutory appeals "in exceptional circumstances," the ARB determined that interlocutory review was not appropriate in this case because the Prosecuting Party failed to obtain the ALJ's certification for interlocutory review or establish grounds for an interlocutory appeal under the "collateral order" exception.
Trivedi v. General Electric, ARB No. 2022-0026, ALJ No. 2022-SOX-00005 (ARB Jan. 27, 2023) (Order Denying Complainant's First, Second, and Third Motion to Recuse, Motion to Vacate Denial of the Motion for Reconsideration, and Motion for Re-Hearing En Banc)
MOTION TO RECUSE, RECONSIDER, AND RE-HEAR APPEAL EN-BANC; COMPLAINANT DID NOT ESTABLISH SUFFICIENT GROUNDS FOR RECUSAL OR RECONSIDERATION OF HER APPEAL
In Trivedi v. General Electric, ARB No. 2022-0026, ALJ No. 2022-SOX-00005 (ARB Jan. 27, 2023), the ARB had previously affirmed the ALJ's dismissal of Complainant's claim as untimely and denied Complainant's first request for reconsideration. Complainant subsequently filed additional motions to recuse the entire ARB panel that considered her appeal, to vacate the denial of the first motion for reconsideration, and to re-hear the appeal en banc. Complainant alleged the Members of the ARB were biased for dismissing her complaint and because she filed a suit against them in federal court. The ARB determined that Complainant did not establish sufficient grounds that would require recusal. The ARB further determined that the remainder of Complainant's arguments were previously addressed in the ARB's earlier decision. The ARB concluded that Complainant did not meet the standard for reconsideration and denied Complainant's three motions.
Williams v. QVC, Inc., ARB No. 2020-0019, ALJ No. 2018-SOX-00019 (ARB Jan. 17, 2023) (Decision and Order)
SOX PROTECTED ACTIVITY; CONTRIBUTING FACTOR; SAME-ACTION DEFENSE
In Williams v. QVC, Inc.,ARB No. 2020-0019, ALJ No. 2018-SOX-00019 (ARB Jan. 17, 2023), Complainant filed a Complaint against Respondent, alleging that Respondent had terminated Complainant's employment because he engaged in conduct protected by SOX. The Administrative Law Judge (ALJ) issued a Decision and Order Denying Complaint (D. & O.) because Complainant did not establish that he engaged in protected activity or that his alleged protected activity was a contributing factor to the termination of his employment. On appeal, the ARB affirmed the ALJ's D. & O.
SUBSTANTIAL EVIDENCE SUPPORTS THE ALJ'S RULING THAT COMPLAINANT DID NOT ENGAGE IN PROTECTED ACTIVITY
The ARB held that substantial evidence supported the ALJ's ruling that Complainant did not engage in protected activity. The ARB affirmed the ALJ's ruling that it was not objectively reasonable for Complainant to believe he was reporting a SOX violation. Complainant's allegations of protected activity amounted to speculation, unsupported assertions, or disagreements with Respondent's business decisions and expenditures. In addition, Complainant had not presented evidence of any wrongdoing, let alone evidence that could have a connection to a SOX violation.
COMPLAINANT'S ALLEGED PROTECTED ACTIVITY WAS NOT A CONTRIBUTING FACTOR TO THE TERMINATION OF HIS EMPLOYMENT
The ARB held that substantial evidence supported the ALJ's ruling that Complainant alleged protected activity was not a contributing factor to the termination of his employment. The ARB found that temporal proximity did not raise a causal inference of contributing factor between Complainant's alleged protected activity and the termination of his employment. Complainant had engaged in several intervening events of insubordinate conduct, which demonstrated the insufficiency of temporal proximity to establish a causal connection.
RESPONDENT ESTABLISHED ITS SAME-ACTION DEFENSE BY SUBSTANTIAL EVIDENCE
The ARB affirmed the ALJ's ruling as to Respondent's same-action defense. The ARB found that Complainant engaged in repeated insubordination and that substantial evidence supported the ALJ's conclusion that Respondent would have terminated Complainant even absent Complainant's alleged protected activity.