Decisions of the Administrative Review Board
- Hyman v. KD Resources , ARB No. 09-076, ALJ No. 2009-SOX-20 (ARB Mar. 31, 2010) (Decision and Order of Remand) PDF
TIMELINESS OF COMPLAINT; EQUITABLE ESTOPPEL BASED ON ACTS OR OMISSIONS BY THE RESPONDENT THAT LULL THE PLAINTIFF INTO INACTION
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING OR EQUITABLE ESTOPPEL; GIVEN FACT INTENSIVE NATURE OF ISSUE, ALJ MAY NOT RELY MERELY ON AFFIDAVITS GIVEN IN RESPONSE TO AN ORDER TO SHOW CAUSE TO ESSENTIALLY DISPOSE OF A CASE BASED ON SUMMARY DECISION
In Hyman v. KD Resources , ARB No. 09-076, ALJ No. 2009-SOX-20 (ARB Mar. 31, 2010), the ALJ issued an Order to Show Cause, sua sponte, directing the Complainant to show cause as to why the complaint should not be dismissed because it was not timely filed. The ALJ found that the Complainant's response lacked necessary evidence to support equitable tolling, and dismissed the complaint. On appeal, however, the ARB found that "the evidentiary documents submitted by Hyman in response to the Order to Show Cause that one or more of the Respondents' officials and/or agents (either or all) led Hyman to reasonably believe that he would be returned to his former employment or alternatively given a one-year consulting contract, that he would be financially compensated for having been wrongfully terminated (including payment of back salary), and that KD Resources would resolve the SOX compliance issues that Hyman had raised." USDOL/OALJ Reporter at 8. The ARB found that this showing was sufficient to establish a basis for applying equitable estoppel under the ground that "...the employer's own acts or omissions have lulled the plaintiff into foregoing prompt attempts to vindicate his rights." USDOL/OALJ Reporter at 7, quoting Bonham v. Dresser Indus. , 569 F.2d 187, 193 (3d Cir. 1978). The ARB stated that "Under this basis for equitable estoppel it is immaterial whether the defendant engaged in intentional misconduct." Id .
The ARB stated that the circumstances of the instant case were distinguishable from a party's reliance upon settlement negotiations, which does not toll the running of the statute of limitations. The ARB stated that its holding was limited to a finding that the Complainant's "response to the ALJ's Order to Show Cause met the minimal requirements necessary to invoke equitable estoppel as a basis for tolling the running of the period for filing his complaint,"USDOL/OALJ Reporter at 9, and left it to the ALJ on remand to determine the issue of the timeliness on a more fully-developed evidentiary record.
In this regard, the Board indicated that the ALJ's procedure for determining the issue of timeliness had been inappropriate. The Board wrote:
The ALJ's disposition pursuant to the Order to Show Cause effectively constituted a disposition by way of summary decision pursuant to 29 C.F.R. §§ 18.41 (2009). As such we consider it to have been an inappropriate procedure for resolving the timeliness issue given the fact intensive nature of the considerations that must be resolved where equitable tolling or equitable estoppel is invoked. The courts have repeatedly held that whether equitable modification should be applied to toll the running of a statute of limitations is a fact intensive determination requiring close examination of the facts and equities. .... For example, such determinations almost invariably involve the credibility of witnesses. Consequently, as the Tenth Circuit has noted, "the issue of equitable tolling and estoppel [cannot] be resolved on the basis of the affidavits" because of the difficulty of determining credibility therefrom" Wilkerson v. Siegfried Ins. , 621 F.2d 1042, 1044 (10th Cir. 1980).
USDOL/OALJ Reporter at 9 (some citations omitted).
[Editor's note: But see Warner v. Xcel Energy , ARB No. 08-112, ALJ No. 2008-ERA-2 (ARB Mar. 29, 2010), in which the ARB affirmed the ALJ's findings that the complainant had failed to show good cause for his failure to timely file his ERA complaint, and did not criticise the ALJ's use of an order to show cause to address the timeliness issue, even though the complainant had alleged deception by the Employer.
The Warner decision turned on the fact that the Complainant was basing his deception argument on inability to timely obtain evidence to confirm his suspicion of retaliation. Thus, it appears that using an order to show cause is not an inherently inapproprate technique for an ALJ to address the issue of timeliness, but only that it may not be adequate if an issue of fact or witness credibility is material to the equitable ground being proffered.]
- Neal v. Entergy Nuclear Operations, Inc. , ARB No. 08-092, ALJ No. 2006-ERA-3 (ARB Mar. 31, 2010) (Order of Remand for Settlement) PDF
Remand to ALJ for approval of settlement of consolidated matters.
- Warner v. Xcel Energy , ARB No. 08-112, ALJ No. 2008-ERA-2 (ARB Mar. 29, 2010) (Final Decision and Order) PDF
[Nuclear & Environmental Whistleblower Digest IV B 1]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING BASED ON DECEPTION; WHERE COMPLAINANT ALREADY SUSPECTED DISCRIMINATION, THERE IS NO TOLLING OF LIMITATIONS PERIOD UNTIL HE ACQUIRES EVIDENCE CONFIRMING THAT SUSPICION
In Warner v. Xcel Energy , ARB No. 08-112, ALJ No. 2008-ERA-2 (ARB Mar. 29, 2010), the Complainant was terminated from employment based on inappropriate comments made to a female co-worker. Four months after termination, the Complainant requested a copy of his personnel record, and after some delay and initially receiving only an incomplete record, the Complainant was provided the complete record. The Complainant contacted the NRC, which informed the Complainant that he should contact DOL about his "harassment of termination" complaint. The Complainant filed his complaint with DOL almost 27 months after his termination from employment, 21 months after he received his complete personnel record, and at least 9 months after he was told by the NRC to contact the Department of Labor. OSHA dismissed the complaint as untimely filed. The ALJ issued an order to show cause why the complaint should not be dismissed as untimely filed. Eventually, the ALJ dismissed the complaint, finding that the Complainant was not entitled to equitable tolling because he had not made a showing that he had been meaningfully prevented from asserting his rights.
On appeal, the Complainant argued that the limitations period should be tolled because the Respondent misled him as to the grounds for his termination. The Complainant averred that the Respondent delayed providing him with his complete personnel file until after the 180-day filing period had run, and that memos in the file disclosed that even with his prior discipline issues, the inappropriate comments for which the Respondent stated he was fired, warranted discipline, but not termination.
The ARB stated that under an equitable estoppel analysis, a party invoking the doctrine must show (1) the respondents wrongfully concealed their actions; (2) the complainant failed to discover the operative facts that are the basis of the cause of action within the limitations period; and (3) the complainant acted diligently until discovery of the facts. The ARB found that in the instant case, the Respondent had not concealed any discriminatory actions. The Complainant knew that the Respondent had terminated his employment, and knew that he had voiced concerns regarding the falsification of training records prior to the termination.
The ARB, quoting a Fifth Circuit decision, stated that "a showing of deception as to motive supports equitable estoppel only if it conceals the very fact of discrimination; equitable estoppel is not warranted where an employee is aware of all of the facts constituting discriminatory treatment but lacks direct knowledge of the employer's subjective discriminatory purpose." USDOL/OALJ Reporter at 6, quoting Christopher v. Mobil Oil Corp. , 950 F.2d 1209, 1216-17 (5th Cir. 1992).
Although the Complainant argued that he did not know the true reason for the firing until he received and reviewed his personnel record, the ARB recited statements by the Complainant indicating that he already suspected discrimination, but wanted hard documentation of such. The ARB found that equitable estoppel was not warranted in these circumstances, writing: "While a complainant's burden to establish the elements of his claim may be difficult, it is still the complainant's burden to do so. Warner's argument confuses notice with evidence." USDOL/OALJ Reporter at 7. The ARB then cited its own caselaw to the effect that a complainant's failure to acquire evidence of motivation for the adverse employment action does not affect the complainant's rights or responsibilities for timely initiating a complaint.
The ARB also held that even if the limitations period was tolled until the Complainant received his personnel record, he had still failed to file his whistleblower complaint within 180 days of that action.
- Davis v. CPC Logistics , ARB No. 10-046, ALJ No. 2010-STA-3 (ARB Mar. 24, 2010) (Final Decision and Order) PDF
Approval of withdrawal of objections to Secretary's Findings.
- Evans v. Miami Valley Hospital , ARB No. 10-058, ALJ No. 2006-AIR-22 (ARB Mar. 24, 2010) (Order Approving Settlement and Dismissing Complaint With Prejudice) PDF
Approval of settlement agreement.
- Testa v. Consolidated Edison Co. of New York, Inc. , ARB No. 08-029, ALJ No. 2007-STA-27 (ARB Mar. 19, 2010) (Final Decision and Order) PDF
[STAA Digest IV C 2 a]
PRETEXT; EMPLOYER COULD NOT USE DECISIONMAKER'S PURPORTED GOOD FAITH RELIANCE ON FLAWED AUDIT REPORT AS A DEFENSE WHERE COMPLAINANT'S SUPERVISORS AND THE DECISIONMAKER PARTICIPATED IN ALL ASPECTS OF THE AUDIT AND THE TERMINATION DECISION
In Testa v. Consolidated Edison Co. of New York, Inc. , ARB No. 08-029, ALJ No. 2007-STA-27 (Mar. 19, 2010), the Respondent argued that it credibly relied on a audit report in making the decision to terminate the Complainant, a mechanic who had complained that his supervisor had released a truck � which the Complainant had placed out of service -- to make a delivery on the way to a repair facility. The audit report had concluded that the Complainant had falsified documents, had lied and been uncooperative during the investigation, and had failed to do a proper inspection. The ALJ found that each of these findings was pretextual, and the ARB found that substantial evidence supported the ALJ's findings.
The Respondent argued that despite any problems with the method or thoroughness of the report, it was the report that formed the basis of the general manager's termination decision and not protected activity. The ARB agreed that a company does not necessarily violate the STAA's whistleblower provision merely because its termination decision is harsh or even if the termination is based on erroneous information. Flaws in an audit or investigation do not necessarily, in themselves, taint a decision if the decision maker relied on audit or investigation in good faith. In the instant case, however, the supervisors and decision makers participated in all aspects of the audit and termination decision, and the ARB affirmed the ALJ's finding of pretext and retaliation.
- Moore v. Innovative Driver Services , ARB No. 10-054, ALJ No. 2009-STA-75 (ARB Mar. 18, 2010) (Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice) PDF
Approval of settlement agreement.
- Perez v. H & R Block, Inc. , ARB No. 10-038, ALJ No. 2009-SOX-42 (ARB Mar. 18, 2010) (Final Decision and Order Dismissing Appeal) PDF
Dismissal of petition for ARB review on the grounds that the Complainant failed to timely file his opening brief and to demonstrate good cause for his failure to do so.
- Hill v. Heritage Operating, LP , ARB No. 10-063, ALJ No. 2009-STA-48 (ARB Mar. 17, 2010) (Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice) PDF
Approval of settlement agreement.
- Robeson v. Denney Transport Limited , ARB No. 10-065, ALJ No. 2009-STA-74 (ARB Mar. 17, 2010) (Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice) PDF
Approval of settlement agreement.
- Ass't Sec'y & Niland v. Western Maryland Transport, Inc. , ARB No. 10-042, ALJ No. 2009-STA-72 (ARB Mar. 16, 2010) (Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice) PDF
Approval of settlement agreement.
- James v. Suburban Disposal, Inc. , ARB No. 10-037, ALJ No. 2009-STA-71 (ARB Mar. 12, 2010) (Final Decision and Order Dismissing Complaint With Prejudice) PDF
[STAA Whistleblower Digest XI B 2]
DISMISSAL FOR CAUSE; FAILURE TO ATTEND HEARING OR TO ESTABLISH GOOD CAUSE FOR SUCH FAILURE
Where the Complainant failed to attend the scheduled hearing and failed to establish good cause for that failure, the ARB affirmed the ALJ's dismissal of the complaint under 29 C.F.R. 18.39(b). James v. Suburban Disposal, Inc. , ARB No. 10-037, ALJ No. 2009-STA-71 (ARB Mar. 12, 2010).
- Independent Electrical Contractors, Georgia Chapter, Inc. , ARB No. 10-009 (ARB Mar. 10, 2010) (Final Decision and Order Dismissing Appeal Without Prejudice) PDF
DISMISSAL OF DBA WAGE APPEAL WITHOUT PREJUDICE TO RE-FILE IF WAGE-HOUR DIVISION FAILED TO TIMELY COMMENCE NEW WAGE SURVEY AS PROMISED
In Independent Electrical Contractors, Georgia Chapter, Inc. , ARB No. 10-009 (ARB Mar. 10, 2010), the Petitioner had sought review of a DBA wage determination, but together with the Wage-Hour Administrator filed a joint motion to dismiss because Wage-Hour would be conducting a new survey of electrician wage rates in Georgia in the early summer of 2010, and Wage-Hour agreed to dismissal without prejudice and pledged not to object to the timeliness of a new petition if Wage-Hour failed to timely begin the survey and the Petitioner filed a new petition. The ARB granted the motion.
- Moldauer v. Canandaigua Wine Co. Inc. , ARB No. 10-055, ALJ No. 2010-SOX-9 (ARB Mar. 9, 2010) (Notification to Parties That Case Has Not Been Accepted for Review) PDF
ARB REVIEW DECLINED WHERE COMPLAINANT'S PETITION FOR REVIEW DID NOT SPECIFICALLY IDENTIFY THE FINDINGS, CONCLUSIONS OR ORDER TO WHICH HE TOOK EXCEPTION
In Moldauer v. Canandaigua Wine Co., Inc. , ARB No. 10-055, ALJ No. 2010-SOX-9 (ARB Mar. 9, 2010), the ARB declined review of the ALJ's order dismissing the Complainant's SOX complaint where the Complainant's petition for review did not specifically identify the findings, conclusions or order to which he took exception. The ARB indicated that it could consider the petition to have waived any objections to the ALJ's order under 29 C.F.R. 1980.110, but that in any event, it had considered the ALJ's orders and the Complainant's notice of review, and had decided not to accept the case for review. Consequently, the ALJ's decision became the Secretary's final order in the case.
- Fernandez v. Navistar International Corp. , ARB No. 10-035, ALJ No. 2009-SOX-43 (ARB Mar. 4, 2010) (Order Denying Petition for Interlocutory Review) PDF
ATTORNEY-CLIENT PRIVILEDGE/WORK PRODUCT DOCTRINE; INTERLOCUTORY REVIEW OF ISSUE OF WHETHER CONFIDENTIALITY OF AUDIT COMMITTEE REPORT IS WAIVED UPON DISCLOSURE TO THE SEC
In Fernandez v. Navistar Int'l Corp. , ARB No. 10-035, ALJ No. 2009-SOX-43 (ARB Mar. 4, 2010), the Respondents sought interlocutory review by the ARB of an ALJ's grant of a motion to compel discovery of an internal audit report that counsel for Navistar's audit committee prepared in connection with an internal investigation of Navistar's accounting practices. Although the ALJ had found that the report was intended to be kept confidential and had been prepared in anticipation of litigation, and therefore both attorney-client privilege and work product doctrine applied, he also found that Navistar had waived the privileges when it disclosed the report to the SEC as part of an SEC investigation into Navistar's accounting practices. Navistar sought interlocutory review under the collateral order doctrine. The ARB found that the proper standard for consideration of the interlocutory appeal was the question of law standard of 28 U.S.C.A. 1291 . See Mohawk Industries, Inc. , 130 S.C. 599, 609 (2009) ("collateral order appeals are not necessary to ensure effective review of orders adverse to the attorney-client privilege").
Based on that standard, the ARB found that "[e]xercising jurisdiction over the issue presented for interlocutory review at this time would not, in our estimation, expedite the litigation and resolution of this case." USDOL/OALJ Reporter at 5 (footnote omitted). The Board noted that the ALJ had acceded to the parties' stipulated protective order keeping the report confidential and for use in the instant SOX litigation only. The Board found that the issue presented for interlocutory review could be addressed as part of any subsequent appeal of the ALJ's final order on the merits.
In conducting its review, the Board had granted Navistar's motion for leave to file portions of its interlocutory review under seal instanter, in order to preserve any potentially privileged materials or evidence.