USDOL/OALJ Reporter: ARB Decision Caselist -- May 2008

 

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Summary :

Approval of settlement.

 

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Summary :

Order denying reconsideration where motion merely rehashed arguments the Board had already considered and rejected.

 

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Summary :

Approval of settlement.

 

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Summary :

ALJ'S DECISION AND ORDER MUST MAKE SPECIFIC FINDINGS AND STATE THE REASONS SUPPORTING THOSE FINDINGS

In Pittman v. Diagnostic Products Corp. , ARB No. 06-079, ALJ No. 2006-SOX-53 (ARB May 30, 2008), the Complainant had filed a SOX complaint alleging that following his discharge the Respondent company and its agents had retaliated against him within the 90 day period for filing a SOX complaint. The ALJ found, without explanation, that none of the post-termination acts alleged by the Complainant "appear to constitute adverse employment actions within the meaning of the Act" and therefore that the complaint was time barred. On review, the ARB found that the ALJ's decision failed to comply with 29 C.F.R. § 18.57(b) and 29 C.F.R. § 1980.109(a), which require an ALJ to issue an opinion with specific findings and the reasons supporting those findings. The ARB, therefore remanded the case to the ALJ for issuance of a revised recommended Decision and Order discussing whether SOX covers retaliatory acts against former employees and whether the specific acts of retaliation proffered by the Complainant were actionable.

 

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Summary :

Approval of settlement.

 

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Summary :

[STAA Digest IV B 2 e]
CAUSATION; FAILURE TO PROVE THAT COMPLAINANT WAS GIVEN FEWER ASSIGNMENTS BECAUSE OF HIS PROTECTED ACTIVITY RATHER THAN A BUSINESS SLOWDOWN AND HIS LACK OF DEPENDABILITY AS OPPOSED TO OTHER DRIVERS

In Walkewicz v. L & W Stone Corp. , ARB No. 07-001, ALJ No. 2006-STA-30 (ARB May 30,2008), the Complainant had refused to drive a truck which had run out of gasoline back to the yard because to do so would have violated the hours of service regulation. Over the course of the next few weeks, he received fewer assignments than other drivers. He then filed a STAA complaint alleging constructive discharge. The ARB agreed with the ALJ that the Complainant failed to produce sufficient evidence to establish a constructive discharge, but nonetheless had suffered adverse action in the form of loss of pay for fewer assignments. The Respondent, however, had presented evidence that there was a seasonal decrease in business during the period in question (from December to early January) � which was not contested by the Complainant. The Respondent also presented evidence that it assigned the Complainant fewer assignments than other drivers because he was less dependable. Specifically, the Respondent had observed him driving too fast; he had been cited because his truck's license plate was covered; he had threatened to abandon a load; he had run out of gas on two occasions; about 80% of the time he did not promptly return his truck to the yard for servicing. The Complainant did not adduce evidence that he was dependable compared to other drivers. In addition, he had been given a bonus and granted vacation requests two days after his protected refusal to drive. The ARB found that substantial evidence supported the ALJ's finding that the Complainant did not prove by a preponderance of the evidence that the Respondent retaliated against him because of his protected activity.

 

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Summary :

[STAA Digest IV B 2 e]
JURISDICTION; RESPONDENT WHICH ALLEGEDLY COMMITTED A NEW VIOLATION AFTER ENTERING INTO SETTLEMENT AGREEMENT; NO JURISDICTION TO DETERMINE IF SETTLEMENT WAS BREACHED, BUT JURISDICTION TO DETERMINE IF NEW STAA VIOLATION OCCURRED

The ARB does not have jurisdiction to determine whether a respondent violated a settlement agreement. It does have jurisdiction, however, to determine whether a respondent committed a new STAA violation after entering into the settlement agreement. White v. J.B. Hunt Transport, Inc. , ARB No. 06-063, ALJ No. 2005-STA-65 (ARB May 30, 2008).

[STAA Digest IX A 6]
CAUSAL LINK; COMPUTER ERROR ON PERSONNEL RECORD UNKNOWN TO RESPONDENT UNTIL COMPLAINANT NOTIFIED THE RESPONDENT; ABSENCE OF PROOF OF INTENT TO RETALIATE

In White v. J.B. Hunt Transport, Inc. , ARB No. 06-063, ALJ No. 2005-STA-65 (ARB May 30, 2008), the Complainant and Respondent had earlier entered into a settlement agreement, which included a provision concerning the procedure for responding to inquiries about the Complainant's employment with the Respondent. The Complainant alleged that the Respondent committed a new STAA violation when it changed his work record to reflect company policy violations. The Respondent presented an affidavit indicating that the change resulted from new computer software and that the Respondent was not aware of the change until the Complainant contacted the company's legal counsel about it. The affidavit indicated that the Respondent immediately corrected the information. The ARB held that"[b]ecause Hunt submitted admissible evidence that it did not intentionally retaliate against White, the burden shifted to White to produce enough evidence to create a triable issue of fact regarding Hunt's intent to blacklist him." Although the evidence showed that a change occurred to the Complainant's work record, he submitted no evidence demonstrating that the Respondent intentionally disseminated any information that caused the change. Because the Complainant failed to present sufficient evidence to create a genuine issue of material fact that the Respondent intentionally retaliated against him because of STAA protected activity, the Respondent was entitled to summary decision.

 

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Summary :

[STAA Digest IX A 6]
REINSTATEMENT IS A REQUIRED REMEDY; ALJ ERRED IN NOT ORDERING REINSTATEMENT EVEN THOUGH THE COMPLAINANT INDICATED THAT SHE DID NOT WANT TO BE REINSTATED

In Dickey v. West Side Transport, Inc. , ARB Nos. 06-150, 06-151, ALJ Nos. 2006-STA-26 and 27 (ARB May 29, 2008), the ALJ erred when he did not order the Respondent to reinstate the Complainant. The ALJ had found that the Complainant did not want to be reinstated, and that this was appropriate given that at the time of the hearing she had a comparable job and that her husband � with whom she had team drove while working for the Respondent - could no longer accompany her. The ARB wrote:

    Reinstatement is an automatic remedy under the STAA. Reinstatement must be ordered unless it is impossible or impractical. In Dutile v. Tighe Trucking, Inc., the Secretary of Labor scrutinized the previous Department of Labor policy of honoring a discharged employee's statement that he does not seek reinstatement. The Secretary found that "a complainant who is not ordered to be reinstated may gain a windfall as back pay continues to accrue during the pendency of remanded issues such as the calculation of back pay and related benefits." Therefore, he determined that the better policy was for the ALJ to order reinstatement which, in turn, would obligate the respondent employer to "make a bona fide reinstatement offer."

    Three years later, relying on Dutile, the Administrative Review Board found that an ALJ erred when, on remand, he had ordered the complainant to advise him whether he would be seeking reinstatement. The employee advised the ALJ by letter that he preferred to remain at his new employment "unless certain circumstances change." The Board held that the ALJ "wrongfully relieved [the employer] of its obligation to make a bona fide offer of reinstatement." Furthermore, the employee's letter to the ALJ did not constitute a valid waiver of reinstatement because the employer had not unconditionally offered him reinstatement.

USDOL/OALJ Reporter at 8 (footnotes omitted). The ARB ordered that on remand the ALJ should order reinstatement unless the parties demonstrated that circumstances existed under which reinstatement would not be appropriate. Also, since back pay liability does not end merely upon the complainant's obtaining comparable employment, but when the employer makes a bona fide unconditional offer of reinstatement or, in very limited circumstances when the employee rejects a bona fide offer. the ARB found that the ALJ might need to recalculate back pay.

 

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Summary :

PROTECTED ACTIVITY; RAISING GENERAL CONCERNS

In Gale v. World Financial Group , ARB No. 06-083, ALJ No. 2006-SOX-43 (ARB May 29, 2008), the ARB found that the ALJ properly granted summary decision against the Complainant where the Complainant had only expressed "concerns" about a parent company's business operations, and certain of the Respondent's practices and policies, but indicated in deposition testimony that he did not believe that the Respondent had engaged in any illegal or fraudulent activity. Because protected activity is a material element of a SOX whistleblower claim, to avoid summary decision the Complainant was required to produce some evidence that he reasonably believed that there had been a violation of the fraud statutes, SEC rules or regulations, or a Federal law concerning fraud against shareholders.

 

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Summary :

TIMELINESS OF PETITION FOR ARB REVIEW; TIMELY FILING WITH THE ALJ OF A MOTION FOR RECONSIDERATION TOLLS TIME PERIOD FOR REQUESTING ARB REVIEW

In Gattegno v. Prospect Energy Corp. , ARB No. 06-118, ALJ No. 2006-SOX-8 (ARB May 29, 2008), the Respondents argued that the Complainant's appeal to the ARB was not timely because it was not filed within 10 days of the date the ALJ issued his decision. The Complainant had filed a motion for reconsideration, and did not file the ARB appeal until within 10 days after the ALJ ruled on the motion. The ARB held:

    Although the SOX regulations do not provide for reconsideration by the Board of its own decisions, the Board has recently held in Henrich v. Ecolab, Inc. that its authority to reconsider its SOX decisions is inherent because the authority has not been limited by statute or regulation. The Seventh Circuit Court of Appeals has recently confirmed that the timely filing of a motion for reconsideration of a Board decision tolls the limitations period for filing a notice of appeal with the federal courts of appeals.

    The Respondents have not pointed to any statute or regulation that limits an administrative law judge's reconsideration of his or her own decisions. Thus, guided by Henrich and the Seventh Circuit's decision in Saban, we find that Gattegno's motion for reconsideration, filed within ten business days of the date of the ALJ's R. D. & O., tolled the limitations period for filing her petition for review with the Board, and that her petition for review, filed within ten business days of the ALJ's Order denying reconsideration was timely filed.

USDOL/OALJ Reporter at 15 (footnotes omitted).

ADVERSE ACTION; FAILURE OF COMPLAINANT TO MAKE A PROFFER SUFFICIENT TO SURVIVE SUMMARY DECISION SHOWING WHY A PRESS RELEASE WAS ADVERSE

CONSTRUCTIVE DISCHARGE CLAIM NOT VIABLE WHERE COMPLAINANT HAD ALREADY ACCEPTED ANOTHER JOB PRIOR TO THE ALLEDGEDLY ADVERSE ACTION

In Gattegno v. Prospect Energy Corp. , ARB No. 06-118, ALJ No. 2006-SOX-8 (ARB May 29, 2008), the former CFO wrote to the company and made general allegations of improprieties. The Complainant was appointed to serve as acting CFO and as the Chief Compliance Officer (CCO). The Complainant made a complaint about the manner in which the former CFO's allegations were being investigated. During an investigation of the Complainant's complaint, it was discovered that the Complainant had engaged in behavior inconsistent with her role as CCO, and -- based also on false statements and poor performance -- the decision was made to place the Complainant on administrative leave as acting CFO and CCO. The Complainant stated in deposition that she did not consider this action to be retaliatory � nor did she believe that she suffered any adverse consequence as a result. The Complainant was also informed that no evidence had supported her allegations of improprieties. The company then filed a Form 8-K Report with the SEC providing notice that a candidate for a new CFO had been identified and that the current CFO and CCO had been placed on administrative leave. A few weeks later the company filed another Form 8-K with a press release attached, announcing the appointment of a new CFO and a new CCO. The press release stated, inter alia, that investigation of the former CCO's (i.e., the Complainant's) allegations had not produced evidence of fraud or material deficiencies in the company's public disclosure practices. In deposition testimony, the Complainant indicated her belief that a diligent person or subsequent employer would be able to identify her as the complaining CCO; however, she did not consider the filing to be retaliatory or to have had adversely affected her.

In its next quarterly report, the company included as an exhibit a press release concerning the investigations. This time the Complainant's name was disclosed, as was the fact that the investigation had also looked into her performance. The Complainant subsequently filed her SOX whistleblower complaint with OSHA. OSHA found no reasonable cause for a finding of a violation and the matter went before an ALJ. The ALJ granted summary decision in favor of the Respondents, essentially on the ground that the Complainant had admitted that the first two filings were not retaliatory, and that she had failed to show that there was a material issue of fact regarding whether the final press release constituted an adverse employment action, having made no proffer of why the addition of her name as opposed to just her title, and the mention of review of her performance resulted in an adverse effect on her job prospect. The ALJ also rejected the Complainant's contention that the final press release was a constructive discharge because the Complainant had already accepted a new job before that release had been issued. Thus, the Complainant could not be discharged from a job from which she had already constructively resigned.

The ARB affirmed the ALJ on appeal, finding that although the Complainant had established that there were material differences between the earlier releases and the final press release, she had not established that those differences caused the final release to be adverse. The ARB observed that the ALJ had given the Complainant lengthy and precise instructions on what she needed to proffer in order to survive the Respondents' summary decision motion, but that the one witness she finally identified did not address the crucial issue. The ARB rejected the Complainant's argument that maligning a former employee is an adverse action on the ground that the press release had not maligned her (it merely reported information that had already been disclosed and did not comment on whether her performance had been found to be good or bad). The ARB also affirmed the ALJ's finding that there had been no constructive discharge, and found that the allegation � raised for the first time in the appellate brief � that the final press release was an actual discharge, was raised too late, and in any event would fail on the same grounds as the constructive discharge theory (i.e., that the Complainant had already constructively resigned by accepting other employment).

 

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Summary :

Approval of withdrawal of objections to OSHA findings.

 

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Summary :

[Nuclear and Environmental Digest XX.E.]
STATE SOVEREIGN IMMUNITY; JURISDICTIONAL MATTER THAT MAY BE RAISED AT ANY TIME; COMPLAINANT CANNOT DEFEAT IMMUNITY MERELY BY NAMING A FEDERAL AGENCY WHEN THE FEDERAL AGENCY WAS NOT THE EMPLOYER

In Yagley v. Hawthorne Center of Northville , ARB No. 06-042, ALJ No. 2005-TSC-3 (ARB May 29, 2008), the Complainant alleged that an agency within the Michigan Department of Community Health had abruptly ended her long term disability benefits in retaliation for complaints she had made to the state EPA about exposure to lead paint during renovations. The ALJ found that the agency was immune under the 11th amendment and did not address the merits of the case. On appeal, the ARB agreed that the agency was immune under the 11th amendment. Although the agency had not raised the immunity defense before OSHA, the ARB held that sovereign immunity is jurisdictional and may be raised at any time. The ARB found no abrogation of immunity by Congress when it enacted the CAA or TSCA, and that Michigan had not waived 11th amendment immunity under those laws. The ARB agreed with the Complainant's contention that if the Secretary of Labor or a representative of the Secretary had intervened, sovereign immunity would not apply � but found that no federal agency had become a party and that the Complainant could not force the Federal government to be a party by naming it as one when it was not the employer.

 

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Summary :

REMOVAL TO DISTRICT COURT; MOTION FOR MANDAMUS ORDERING DOL TO ISSUE A RULING ON APPEAL OF ALJ'S DECISION

In Zang v. Fidelity Management & Research Co. , ARB No. 08-078, ALJ No. 2007-SOX-27 (ARB May 28, 2008), the ALJ had granted summary decision against the Complainant, and the Complainant filed a petition for review with the ARB. Thereafter, the Complainant filed a notice of intent to file a SOX complaint in federal district court. The ARB issued an order to show cause why the ARB appeal should not be dismissed. In response, the Respondents filed an opposition stating that they intended to file a motion with the district court to dismiss the SOX complaint with prejudice or in the alternative to issue a mandamus to DOL to issue a ruling on the appeal of the ALJ decision. The ARB held that, in the interest of judicial economy, it would hold the appeal in abeyance pending the ruling of the district court on the Respondents' motion.

 

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WAGE DETERMINATION; FAILURE TO PROVIDE SUFFICIENT EVIDENCE TO JUSTIFY ADJUSTMENT

In Forfeiture Support Associates , ARB No. 06-028 (ARB May 27, 2008), the Petitioners were employees of a USDOJ contractor, whose job title was Records Examiner/Analyst. The Wage and Hour Division had determined that the job was equivalent to the SCA job classification of Paralegal/Legal Assistant II. The Petitioners contended that the wage survey data actually reflected the lower wage rates for Paralegal/Legal Assistant I, that their job classification should be equivalent to "white collar excluding sales" level 7 employees contained in the NCS, that their wage should be increased, and that the Administrator's policy to cap increases at 10% should not apply because the wage rate had been wrong for years.

The ARB found that the Petitioners failed to provide any sufficient evidence to justify an adjustment to the wage determination rate for a Paralegal/Legal Assistant II in the Boston area, and that the Administrator's determination was reasonable and in accordance with the SCA and its implementing regulations. Thus, the ARB denied the Petition for Review and affirmed the Administrator's final ruling.

 

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Summary :

[Nuclear and Environmental Digest VI E]
TIMELINESS OF REQUEST FOR HEARING; OSHA MISINFORMATION ON LENGTH OF TIME TO REQUEST HEARING DOES NOT WARRANT EQUITABLE TOLLING WHERE COMPLAINANT WAS REPRESENTED BY AN ATTORNEY

In Sysko v. PPL Corp. , ARB No. 06-138, ALJ No. 2006-ERA-23 (ARB May 27, 2008), the Complainant's request for an ALJ hearing was not timely filed. The ERA regulations in effect at the time provided five business days to request a hearing. The ARB found that equitable tolling was not warranted, even though OSHA's determination letter mistakenly stated that the parties had 30 days to file the request for an ALJ hearing, and this mistake was allegedly repeated by an OSHA employee in a telephone conversation with the Complainant's attorney. The ARB wrote that "such an error on the part of a government agency does not entitle Sysko's attorney to ignore the regulations under which he filed Sysko's initial complaint. And Sysko's attorney does not explain why he relied on an OSHA investigator's knowledge of the law rather than his own. � Sysko's attorney could easily have read the regulation that governed Sysko's complaint. His lack of diligence cannot be excused. �" USDOL/OALJ Reporter at 6 (citations omitted).

The ARB also noted that the attorney had indirect notice of the five-day filing requirement in a copy of the OSHA investigator's letter to the Respondent, and that the attorney had admitted that this letter had prompted him to call the regional OSHA office, and that he relied on the OSHA employee, who "read" to him the OSHA "findings and the 29 C.F.R. § 24.4(d)(2) notice which stated that there was a thirty-day appeal period." The ARB stated that while the regulation now provides 30 days in which to request a hearing, the amendment of the regulation was not an exceptional circumstance supporting equitable tolling. Absence of prejudice to the Respondent was not an independent basis for tolling.

 

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