Decisions of the Administrative Review Board
Seguin v. Northrup Grumman Systems Corp.
, ARB No. 16-014, ALJ No. 2012-SOX-37 (ARB May 30, 2017)
Final Decision and Order Affirming the Administrative Law Judge's Supplemental Decision and Order Awarding Attorneys' Fees and Costs
ATTORNEY’S FEES AND COSTS; FEES FOR TASKS PERFORMED PRIOR TO ENTRY OF APPEARANCE MAY BE REASONABLE; BLOCK BILLING DOES NOT NECESSARILY PREVENT THE ADJUDICATOR FROM DETERMINING THE REASONABLENESS OF HOURS EXPENDED; ATTORNEY’S FEES ARE NOT COMPENSATORY DAMAGES, BUT ALJ’S DESCRIPTION OF COMPLAINANT’S DIFFICULTIES IN PAYING LEGAL BILLS DOES NOT NEGATE ALJ’S FINDINGS ON REASONABLENESS OF FEES THAT ARE SUPPORTED BY THE EVIDENTIARY RECORD
In Seguin v. Northrup Grumman Systems Corp. , ARB No. 16-014, ALJ No. 2012-SOX-37 (ARB May 30, 2017), the ARB affirmed the ALJ’s award of over $500,000 for litigation costs, expert witness fees and attorney’s fees. On appeal, the Respondent raised three objections. First, the Respondent argued that the ALJ erred by awarding legal fees for tasks performed by the Complainant’s attorney prior to entering an appearance in the case. The ALJ had held that “Petitioner McDermott did not try the case and did not hear the testimony. A review reveals that the hours expended to determine whether to become involved is extremely reasonable.” The ARB found that the ALJ properly held that those fees were reasonable.
Second, the Respondent argued that attorney’s fee submission partially involved “block billing” (i.e., grouping multiple tasks into a single time entry). The ARB wrote: “However, block billing does not necessarily deprive a court of a basis upon which to determine the reasonableness of the hours an attorney expended on specific tasks, and here the record supports the ALJ’s conclusion that Hogan’s descriptions of his tasks were, notwithstanding any block billing, ‘meticulously recorded and show exactly why each item was paid.’” Slip op. at 3-4 (footnotes omitted).
Third, the Respondent argued that the ALJ relied entirely on the fact that the Complainant had paid attorneys’ fees out-of-pocket, and therefore the ALJ treated the attorney’s fees as compensatory or consequential damages. The ARB acknowledged that the ALJ had described the Complainant’s difficulties in paying her legal bills, but found that the ALJ had not relied on those problems in calculating the fees awarded. The ARB stated that it would not endorse a suggestion that attorney’s fees constitute compensatory damages. Nonetheless, it found that the ALJ’s description of the Complainant’s difficulties in paying legal bills did not negate his determination of entitlement to fees and costs.
Rosenfeld v. Cox Enterprises, Inc.
, ARB No. 16-026, ALJ No. 2014-SOX-33 (ARB May 26, 2017)
Order Denying Motion for Reconsideration
- PDF (USDOL/OALJ Reporter)
MOTION FOR RECONSIDERATION DENIED WHERE IT MERELY RE-ARGUED MERITS OF COMPLAINT AND DID NOT ADDRESS RECOGNIZED OR OTHER GROUND JUSTIFYING RECONSIDERATION
In Rosenfeld v. Cox Enterprises, Inc. , ARB No. 16-026, ALJ No. 2014-SOX-33 (ARB May 26, 2017), the ARB denied a motion for reconsideration where the Complainant re-argued the merits of his SOX retaliation complaint, and ignored the fact that the ALJ's and ARB's decisions were based on the complaint not have been timely filed. The ARB found that the motion for reconsideration failed to demonstrate any of the four grounds the ARB has recognized as sufficient to justify reconsideration, or any other sufficient ground for reconsideration. The four recognized grounds are:
(i) material differences in fact or law from that presented to [the Board] of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the [Board’s] decision, (iii) a change in the law after the [Board’s] decision, and (iv) failure to consider material facts presented to the [Board] before its decision.
USDOL/OALJ Repoter at 3 (footnote omitted).
Gardner v. Union Pacific Railroad Co.
, ARB No. 17-025, ALJ No. 2016-FRS-71 (ARB May 24, 2017)
Final Decision and Order Dismissing Appeal
Appeal dismissed because the Complainant did not respond to the ARB’s order to show cause why the appeal should not be dismissed for failure to file an opening appellate brief. The ARB noted that because of the Complainant’s pro se status, it had reviewed his petition for review to determine whether the Respondent should be required to respond. The ARB determined, however, that the Complainant’s petition did not specify any facts as found by the ALJ that the Complainant believed were not supported by substantial evidence, and did not state that the ALJ had erred in applying the applicable law to the facts of the case. The ARB thus found no reason to require the Respondent to respond.
Baker v. Union Pacific Railroad Co.
, ARB No. 17-034, ALJ No. 2016-FRS-79 (ARB May 19, 2017)
Final Decision and Order Dismissing Untimely Appeal
TIMELINESS OF PETITION FOR ARB REVIEW; ARB’S PARALEGAL’S ERROR IN COUNTING DAYS IN INFORMING COMPLAINANT THAT PETITION WOULD BE CONSIDERED TIMELY WAS NOT A GROUND FOR TOLLING WHERE THE COMPLAINANT HAD ALREADY MISSED THE DEADLINE FOR FILING
In Baker v. Union Pacific Railroad Co. , ARB No. 17-034, ALJ No. 2016-FRS-79 (ARB May 19, 2017), the Complainant unsuccessfully attempted to file a petition for ARB review using the ARB’s Electronic File and Service Request (EFSR) System. The ARB considered the petition to have been filed when he first attempted the filing; however, this date was still five days past the due date, and the ARB ordered the Complainant to show cause why the petition should not be dismissed as untimely. In response, the Complainant contended that an ARB paralegal and IT administrator of the EFSR system had stated that the filing was within the allowable time. The ARB found that a paralegal had told the Complainant that if the petition had been filed on the date of the unsuccessful attempt, it would be considered. timely. The ARB found that the paralegal had miscounted the days between the ALJ’s decision and the attempted filing, but that this error was harmless because the Complainant had not relied “on this information to his detriment—he had already missed the due date when he spoke to the paralegal.” Slip p. at 3. The ARB found that the Complainant had failed to show cause why the limitations period should be tolled, and denied the petition for review.
Reilly v. GlaxoSmithKline, LLC
, ARB No. 17-028, ALJ No. 2017-SOX-4 (ARB May 19, 2017)
Order Dismissing Complaint
The ARB dismissed the administrative SOX complaint because the Complainant filed a complaint for de novo review with the U.S. District Court for the Eastern District of Pennsylvania.
Riley v. El-Hajj Malik El-Shabazz Public School Academy
, ARB No. 17-036, ALJ No. 2016-STA-40 (ARB May 19, 2017)
Order Granting Withdrawal of Appeal
The ARB granted the Complainant’s motion for voluntary dismissal, the effect of which was to make the ALJ’s decisoin the final decision of the Secretary. The ARB noted that if a withdrawal is based on a settlement, the settlement must be submitted to the ARB for approval, but that in this case the parties had not presented the ARB with a settlement agreement for approval.
Seguin v. Northrup Grumman Systems Corp.
, ARB Nos. 15-038, -040, ALJ No. 2012-SOX-37 (ARB May 18, 2017)
Final Decision and Order
PROTECTED ACTIVITY; REFUSAL TO SIGN INTERNAL CONFLICTS OF INTEREST DOCUMENT THAT REFERENCED MANDATORY ARBITRATION OF EMPLOYMENT DISPUTES IS SOX PROTECTED ACTIVITY
In Seguin v. Northrup Grumman Systems Corp. , ARB Nos. 15-038, -040, ALJ No. 2012-SOX-37 (ARB May 18, 2017), the ARB found that substantial evidence supported the ALJ’s finding that the Complainant engaged in SOX-protected activity on several occasions, one of which was to challenge the Respondent’s personnel training module because it required employees to sign an internal conflicts of interest document which in turn referenced the company’s mandatory arbitration provision. The Complainant refused to sign the document on the ground that by requiring employees to sign this document, the Respondent effectively secured an employee’s agreement to mandatory arbitration of any and all employment disputes, including claims under the SOX whistleblower protection provision. The Complainant contended that this action violated the SOX prohibition against pre-dispute arbitration agreements. See 18 U.S.C.A. § 1514A(e)(2) (effective on July 21, 2010, and rendering pre-dispute arbitration agreements invalid and unenforceable as to claims arising under Section 806 of SOX). The ARB noted that the ALJ also found that the Complainant had a reasonable belief, both subjectively and objectively, that Respondent’s actions violated the SOX’s whistleblower protection provisions.
CONTRIBUTING FACTOR CAUSATION; TESTIMONY OF HUMAN RESOURCES EXPERT ESTABLISHED THAT REDUCTION IN FORCE CRITERIA HAD BEEN MANIPULATED SO AS TO INCLUDE THE COMPLAINANT
In Seguin v. Northrup Grumman Systems Corp. , ARB Nos. 15-038, -040, ALJ No. 2012-SOX-37 (ARB May 18, 2017), the ARB found that the record supported the ALJ’s finding that the Complainant’s SOX-protected activity contributed to termination of her employment. The ARB pointed out one example: the Complainant’s refusal to sign an internal conflicts of interest form because it referenced a second document containing a mandatory arbitration provision, which in turn led to a series of events that resulted in her discharge. The Complainant’s immediate supervisor created the criteria for a reduction in force (RIF) that served as the purported basis for the Complainant’s termination. The ALJ found that, while the supervisor was in a position to review the Complainant’s job performance, her explanation of her decisions surrounding the RIF was not credible because it was full of inconsistencies and occasionally contradicted the evidence of record. The ALJ instead relied on the testimony of an expert in human resource management and RIFs, who stated the opinion, based on her analysis, that the Respondent “rigged” the RIF procedure to include the Complainant in the RIR. The ALJ found that it was reasonably probable that the RIF was a pretext for discrimination.
FRONT PAY WHERE REINSTATEMENT IS NOT POSSIBLE; CALCULATION BASED ON RETIREMENT AGE
In Seguin v. Northrup Grumman Systems Corp. , ARB Nos. 15-038, -040, ALJ No. 2012-SOX-37 (ARB May 18, 2017), the ARB affirmed the ALJ’s damages award. This award included an order that if it was not possible to reinstate the Complainant, the Respondent would be required to provide front pay totaling $303,047. The front pay calculation was based on the unopposed opinion of a forensic economist, who, according to the ARB’s opinion, used the date range from July 21, 2014 until the retirement age of 69 to determine the amount.
[ Editor’s note : The ALJ and ARB decisions do not specify the significance of the July 21, 2014 date, but it is noted the ALJ’s Fourth Amended Notice of Hearing indicates that July 21, 2014 was the date of the hearing.]
Tocci v. Miky Transport
, ARB No. 15-029, ALJ No. 2013-STA-71 (ARB May 18, 2017)
Decision and Order of Remand
ARB REVIEW; WHERE ALJ FAILS TO MAKE FINDINGS OF FACT ON MATERIAL ISSUES OF FACT, A REMAND IS REQUIRED; MERE RECITATION OF WITNESS TESTIMONY IS NOT SUFFICIENT
In Tocci v. Miky Transport , ARB No. 15-029, ALJ No. 2013-STA-71 (ARB May 18, 2017), the ARB remanded the matter to the ALJ based on the failure of the ALJ to make findings of fact, and errors of law. In regard to the findings of fact, the ARB wrote:
As the Board has repeatedly emphasized, to conduct a meaningful review of an ALJ’s decision rendered upon an evidentiary hearing, the decision must necessarily include findings of fact upon each material issue of fact presented on the record. It is impossible for the Board, an appellate body, to fulfill its role to conduct a substantial evidence review of an ALJ’s findings of fact if, as here, the ALJ fails to make necessary findings with regard to all material issues of fact. Simply repeating the testimony of the witnesses does not suffice. For this reason alone, the ALJ’s Decision and Order should be vacated, and the case remanded to the ALJ to make necessary findings of fact.
 See, e.g., Pattenaude v. Tri-Am Transp. , ARB No. 15-007, ALJ No. 2013-STA-037, slip op. at 10 (ARB Jan. 12, 2017); Bobreski v. J. Givoo Consultants , ARB No. 09-057, ALJ No. 2008-ERA- 003, slip op. at 7 (ARB June 24, 2011); Riess v. Nucor Corp. , ARB No. 08-137, ALJ No. 2008-STA- 011, slip op. at 3 (ARB Nov. 30, 2010). See 5 U.S.C.A. § 557(c) (“All decisions . . . shall include a statement of—(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record . . . .”).
 See 29 C.F.R. § 1978.110(b) (“The ARB will review the factual determinations of the ALJ under the substantial evidence standard.”).
 “Where a material issue is left unresolved, a remand is typically necessary.” Bobreski v. J. Givoo Consultants , ARB No. 09-057, slip op. at 7 (citing Riess v. Nucor Corp. , ARB No. 08-137, slip op. at 3).
USDOL/OALJ Reporter at 5-6.
PROTECTED ACTIVITY; CONCERN ABOUT ILLUMINATION OF LOW BEAM LIGHTS; CONCESSION BY COMPLAINANT THAT HE CLEARED THE TRUCK ON DAILY INSPECTIONS AND THAT HEADLIGHTS WOULD PASS D.O.T. INSPECTION DID NOT RENDER CONCERN NOT PROTECTED
In Tocci v. Miky Transport , ARB No. 15-029, ALJ No. 2013-STA-71 (ARB May 18, 2017), the ARB found that the evidentiary record supported the ALJ’s finding that the Complainant engaged in STAA-protected activity in raising his concerns about his assigned Volvo truck’s low-beam headlights. The Respondent had argued on appeal the Complainant certified the Volvo as “all clear” on daily formal maintenance logs and acknowledged that the truck’s headlights would pass a Department of Transportation (DOT) inspection. The ARB, however, found that this did not matter, stating that “[i]n a DOT roadside inspection, inspectors check highlights for operation of the high and low beams but do not check for how well they illuminate.” USDOL/OALJ Reporter at 9 (citing testimony of Complainant’s expert witness).
CONTRIBUTING FACTOR CAUSATION; REVERSIBLE ERROR TO RELY ON CASELAW BASED ON PRE-2007 AMENDMENTS TO THE STAA
CONTRIBUTING FACTOR CAUSATION; UNDER CURRENT LAW, A RESPONDENT’S CREDIBLE AND LEGITIMATE REASONS FOR FIRING THE COMPLAINANT IS NOT RELEVANT TO THE CONTRIBUTING FACTOR STAGE OF THE ANALYSIS; FACT THAT COMPLAINANT’S SAFETY COMPLAINT ANGERED RESPONDENT TO POINT THAT HE WAS FIRED FOR REQUESTING EXCESSIVE TIME OFF SHOWS THAT PROTECTED ACTIVITY WAS A FACTOR
In Tocci v. Miky Transport , ARB No. 15-029, ALJ No. 2013-STA-71 (ARB May 18, 2017), the Alj’s conclusion that the Complainant failed to prove that his protected activity was a contributing factor in his employment termination was based on ARB case authority governing causation and the parties’ respective burdens of proof that pre-dated the 2007 amendments to STAA adopted as part of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, 121 stat. 266 (Aug. 7, 2007). The ARB, finding this to be reversible error, wrote:
However, as the Board pointed out in Salata v. City Concrete, LLC , and has since reiterated in numerous decisions, the 2007 legislation replaced the McDonnell Douglas Title VII burden of proof standards and burden-shifting analytical framework in STAA cases by incorporating the legal burdens of proof and framework imposed by the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Pub. L. No. 106-181, 114 Stat. 61 (AIR 21) (Apr. 5, 2000). The 9/11 Commission Act amended paragraph (b)(1) of 49 U.S.C.A. § 31105 to expressly provide that STAA whistleblower complaints are to be governed by the legal burdens of proof set forth at 49 U.S.C.A. § 42121(b), which provides whistleblower protection for employees in the aviation industry. Under the AIR 21 standard, a new burden of proof framework was established in which the complainant is initially required to show by a preponderance of the evidence that protected activity was a “contributing factor” in the alleged adverse personnel action. Should the complainant meet the “contributing factor” burden of proof, the burden shifts to the employer, who is required to overcome the complainant’s showing, to prove by “clear and convincing evidence” that it would have taken the same adverse action in the absence of the protected conduct.
USDOL/OALJ Reporter at 10 (footnotes omitted). In the instant case, the ALJ found that the Respondent had credible and legitimate reasons for firing the Complainant unrelated to any of his complaints about safety. The ARB found that at the “contributing factor” stage of the analysis, this point was irrelevant to the question of whether any of the Complainant’s safety complaints contributed in any way to the Respondent’s decision to terminate his employment. Rather, the post-amendment STAA does not require that a complainant disprove each of the employer’s reasons to prevail—it would be entirely feasible for safety complaints to be a contributing factor and for a respondent to have credible and legitimate reasons for terminating the complainant’s employment. The ARB found that the Complainant’s request for time off was the catalyst for the firing. The ALJ also found, however, that the Complainant’s “complaints about his headlights may have angered [the Respondent’s owner/president], and put him in a frame of mind where [the Complainant’s] request for more time off was not well received.” Id . at 11, quoting ALJ’s decision. The ARB found that this finding undermined a finding that the headlight complaint was not a factor.
[STAA Digest III J]
WEIGHING OF EVIDENCE ON MOTIVE FOR ADVERSE ACTION; ARB REJECTS ALJ’S INADEQUATELY EXPLAINED CONCLUSION THAT RESPONDENT’S PRO SE STATUS AND POOR ENGLISH SKILLS ALLOWED DISCOUNTING OF CONTENTION THAT LETTER ESTABLISHED “SMOKING GUN” EVIDENCE OF RETALIATION
In Tocci v. Miky Transport , ARB No. 15-029, ALJ No. 2013-STA-71 (ARB May 18, 2017), the Complainant argued on appeal that the ALJ erred when she concluded that a letter produced in discovery was not “smoking gun” evidence of retaliation in violation of the STAA. The letter had been written by the Respondent’s owner/president. The ALJ had discounted this evidence based on the owner/president’s pro se status and his poor English skills. The ARB indicated that pro se status of a respondent would never be a sole ground for discounting the evidence relating to the reason for taking adverse employment action. The ARB wrote:
If these were the ALJ’s only reasons for discounting this evidence, this was improper. The absence of legal representation does not detract from the reliability of an employer’s statement about its reasons for taking an adverse action; if anything, it may make the evidence more, not less, reliable. It would be an extremely problematic precedent to suggest that an employer’s statements about his reasons for taking adverse actions should be discredited because counsel did not represent the employer when he made the statements.
USDOL/OALJ Reporter at 13-14. The ARB remanded for the ALJ to reevaluate.
The ARB also rejected the ALJ’s conclusion as to the owner/president’s poor English language skills, writing: “[T]he record as a whole illustrates that the ALJ had no issue understanding Catic during his testimony: the ALJ did not ask Catic if he needed an interpreter; the transcript does not reflect a language barrier; and the ALJ had no issue understanding and crediting some of his testimony about why he terminated Tocci’s employment.” Id . at 14.
Brown v. Synovus Financial Corp.
, ARB No. 17-037, ALJ No. 2015-SOX-18 (ARB May 17, 2017)
Final Decision and Order Dismissing Untimely Appeal
TIME PERIOD FOR FILING PETITION FOR ARB REVIEW IS NOT EQUITABLY TOLLED BASED ON ATTORNEY ERROR, AND EVEN IF IT IS IN A PARTICULARLY EGREGIOUS CASE, THE TOLLING IS ONLY UNTIL THE LITIGANT LEARNS OF THE FILING ERROR
In Brown v. Synovus Financial Corp. , ARB No. 17-037, ALJ No. 2015-SOX-18 (ARB May 17, 2017), the Complainant filed a motion with the ARB that the ARB construed as a petition for review in view of the Complainant's pro se status. Because the filing was made more than 14 days after the ALJ issued his Decision and Order, the ARB ordered the Complainant to show cause why the petition should not be denied as untimely. The Complainant contended that the petition was not timely due to ineffective assistance of counsel. The contention was supported by a declaration from the Complainant's counsel stating that he had indicated to the Complainant that he would file a timely petition but that he had failed to do so. The ARB noted that it has consistently held that attorney error does not constitute an extraordinary factor supporting equitable modification of the filing deadline because clients are "accountable for the acts and omissions of their attorneys." Slip op. at 3, quoting Higgins v. Glen Raven Mills, Inc. , ARB No 05-143, ALJ No. 2005-SDW-7, slip op. at 9 (ARB Sept. 29, 2006). The ARB noted that the instant case appears to present particularly egregious conduct by the attorney, but found that even if the filing period had been tolled during the period the Complainant was unaware that his attorney had failed to file the petition, the Complainant had still failed to file his petition with 14 days of learning that the petition had not been filed. The ARB thus found that grounds for equitable tolling had not been established, dismissed the petition as untimely, and closed the case.
Zavaleta v. Alaska Airlines, Inc.
, ARB No. 15-808, ALJ No. 2015-AIR-16 (ARB May 8, 2017)
Decision and Order of Remand
ADVERSE EMPLOYMENT ACTION; AN INVESTIGATION THAT IS A NECESSARY STEP PRIOR TO POSSIBLE CORRECTIVE OR DISCIPLINARY ACTION IS PRESUMPTIVELY ADVERSE
In Zavaleta v. Alaska Airlines, Inc. , ARB No. 15-808, ALJ No. 2015-AIR-16 (ARB May 8, 2017), the ALJ ruled, in granting summary decision in favor of the Respondent, that an investigation into the Complainant’s timekeeping practices was not adverse employment action because the investigation ended with no disciplinary action and with no additions to the Complainant’s personnel file. The stated that it did “not necessarily reject the ALJ’s reliance upon the Burlington Northern [‘materially adverse’] test. However, when properly applied within the context of the AIR 21’s whistleblower protection provision and its implementing regulations, a different result is reached.” USDOL/OALJ Reporter at 9, citing Williams v. American Airlines , ARB No. 09-018, ALJ No. 2007-AIR-4 (ARB Dec. 29, 2010). In Williams , the ARB had found that “a written warning or counseling session will be considered ‘presumptively adverse where: (a) it is considered discipline by policy or practice, (b) it is routinely used as the first step in a progressive discipline policy, or (c) it implicitly or expressly references potential discipline.’” Zavaleta , USDOL/OALJ Reporter at 10, quoting Williams , slip op. at 11.
In the instant case, the Complainant had submitted in response to the motion for summary decision a copy of the investigative report, which referred to “discipline up to and including discharge” and the possibility of “prosecution under the law” among potential ramifications for violations of company rules of conduct pertaining to timekeeping practices. The ARB stated that “[g]iven the conditional nature of disciplinary action against Zavaleta along with the requirement of an Investigation Report, we see no distinction between the investigation of Zavaleta and the written warning or counseling session the Board viewed in Williams as ‘presumptively adverse’ when constituting a necessary step in a progressive discipline policy or where potential discipline is implicitly or expressly referenced.” Id . (footnote omitted). The ARB held: “Thus, notwithstanding that Zavaleta was not disciplined as a result of the investigation, and notwithstanding that he did not provide any evidence specifying how he was threatened by or as a result of the investigation, we find that Zavaleta demonstrated a genuine issue of material fact that the investigation to which he was subjected constituted adverse employment action within the meaning of AIR 21. Consequently, the ALJ’s ruling to the contrary is reversed.” Id . at 11.
SUMMARY DECISION; NOTICE TO PRO SE LITIGANT OF THE NONMOVING PARTY’S RIGHTS AND OBLIGATIONS IN RESPONDING TO A MOTION FOR SUMMARY DECISION MUST INCLUDE NOTICE OF RIGHT TO CONDUCT DISCOVERY OR TO PRESENT FACTS IN OPPOSITION TO THE MOTION
In Zavaleta v. Alaska Airlines, Inc. , ARB No. 15-808, ALJ No. 2015-AIR-16 (ARB May 8, 2017), the ALJ granted summary decision in favor of the Respondent finding, inter alia, that the pro se Complainant had not demonstrated a genuine issue of material fact on his claims that he was subject to adverse actions when he was recalled to work under less favorable conditions, and when his applications for a management position were rejected.
The ARB stated: “In the review of summary decisions, the Board has adopted federal precedent requiring notice to a pro se litigant of the requirements for opposing a motion for summary judgment, in a form sufficiently understandable to apprise the pro se litigant of what is required, along with the text of the rule governing summary decisions.” USDOL/OALJ Reporter at 11-12 (citing, inter alia , Motarjemi v. Metro. Council Metro Transit Div. , ARB No. 08-135, ALJ No. 2008-NTS-002, slip op. at 4 (ARB Sept. 17, 2010); Hooker v. Washington Savannah River Co ., ARB No. 03-036, ALJ No. 2001-ERA-016, slip op. at 8 (ARB Aug. 26, 2004)). In the instant case, the ALJ issued a notice with the text of 29 C.F.R. § 18.40, which governed summary decisions at the time the ALJ issued the notice (the current rule being 29 C.F.R. § 18.72). The ALJ, however, had omitted Subsection 18.40(d), “which essentially afford[ed] the nonmoving party the opportunity to conduct discovery to respond to a summary decision motion by providing that the presiding ALJ ‘may deny the motion whenever the moving party denies access to information by means of discovery to a party opposing the motion.’” USDOL/OALJ Reporter at 13. The ARB stated that discovery by the Complainant could have proven highly relevant to the unique contextual settings of his recall and the subsequent rejections of his applications for management positions. The ARB held:
that the ALJ should have advised Zavaleta, as a pro se litigant, of his right to conduct discovery and should have afforded him the opportunity to do so if Zavaleta found that he was unable, in the absence of discovery, to present facts justifying his opposition to Alaska Airlines’ motion for summary decision. The failure of the ALJ to so advise Zavaleta constitutes reversible error in the same manner that we have previously held that an ALJ is obligated to advise pro se litigants in a sufficiently understandable form of the requirements for opposing a motion for summary decision.
Id . at 14 (footnote omitted).
SUMMARY DECISION; REVERSIBLE ERROR FOR ALJ, IN RULING ON A MOTION FOR SUMMARY DECISION, TO WEIGH THE EVIDENCE OR DETERMINE THE TRUTH OF THE MATTERS ASSERTED
In Zavaleta v. Alaska Airlines, Inc. , ARB No. 15-808, ALJ No. 2015-AIR-16 (ARB May 8, 2017), the ALJ granted summary decision in favor of the Respondent finding, inter alia, that the pro se Complainant had not demonstrated a genuine issue of material fact on his claim that he was subjected to adverse action when his applications for management positions were rejected. The ALJ had found in regard to one of the positions that the Complainant “did not offer anything more than his own allegations to refute” the evidence the Respondent submitted indicating that he was not selected for the position “because he did not have experience overseeing vendor workflow or managing vendor relationships, while the individual ultimately selected had experience as a liaison between an airline and vendors.” The ARB found that the ALJ had “essentially weighed [the Complainant’s] qualifications for the position against the qualifications of the individual that Alaska Airlines ultimately selected for that position.” USDOL/OALJ Reporter at 14. This, the ARB held, was reversible error, citing Ciofani v. Roadway Express , ARB No. 05-020, ALJ No. 2004-STA-046 (ARB Sept. 29, 2006) (“[I]n ruling on a motion for summary decision, we . . . do not weigh the evidence or determine the truth of the matters asserted . . . .”); Stauffer v. Wal-Mart Stores , ARB No. 99-107, ALJ No. 1999-STA-021, slip op. at 6-7 (ARB Nov. 30, 1999).
Shevchenko v. Elbrus Logistics, Inc.
, ARB No. 17-035, ALJ No. 2016-STA-70 (ARB May 5, 2017)
Final Decision and Order Dismissing Appeal
Appeal dismissed because the Complainant failed to establish a sufficient basis for tolling the limitations period for filing a petition for review.