USDOL/OALJ Reporter
Decisions of the Administrative Review Board
August 2005

Ass't Sec'y & Freeze v. Consolidated Freightways, Inc. , ARB No. 04-128, ALJ No. 2002-STA-4 (ARB Aug. 31, 2005)

  • Title :Final Decision and Order
  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary :
    • Remand to OSHA/Amendment of complaint : OSHA had determined that the complaint was untimely. The ALJ agreed, but remanded to OSHA to permit the Complainant to amend the complaint to include allegations based on more recent events. OSHA found in favor of the Complainant based on the amended complaint. The parties agreed that the OSHA findings and order should be made final, and the ALJ issued an order to that effect. The ALJ also later issued an order approving attorney's fees. The ARB construed the ALJ's orders as a recommended decision and order on the merits. The ARB found that it was required to issue the final order, and issued an order to show cause why the ALJ's order should not be approved. Complainant's counsel responded that it would not be filing a brief and the the Respondent did not respond at all. The ARB affirmed the ALJ's decisions. In a footnote, the ARB stated:

      Inasmuch as neither STAA nor its implementing regulations vest ALJs with authority to compel OSHA to conduct investigations, the better course for the ALJ would have been to dismiss the untimely complaint. Freeze could then have filed a new and timely complaint with OSHA that OSHA would have investigated. See 49 U.S.C.A. � 31105(b)(2)(A). OSHA's investigative findings and Preliminary Order could then have become final by operation of law when, as happened here, neither party objected. See 49 U.S.C.A. � 31105(b)(2)(B).

      Slip op. at n.3.

Halpern v. XL Capital, Ltd. , ARB No. 04-120, ALJ No. 2004-SOX-54 (ARB Aug. 31, 2005)

  • Title : Final Decision and Order
  • Link : PDF
  • Case type : SOX Whistleblower
  • Summary :
    • Timeliness of complaint; trigger date of limitations period; equitable tolling; equitable estoppel : The ARB affirmed the ALJ's finding that the Complainant knew on the date of his suspension that he was going to be fired. The record, however, also contained an e-mail dated several weeks later to the Complainant from the General Counsel for the Respondent's parent company which suggested that a final decision had not been made on the Complainant's employment status. The ARB, therefore, found that the date that limitations period began to run was the date on which the Complainant was later informed verbally and in writing that he had been fired. Nonetheless, even using that later date the complaint was still untimely.

      The Complainant alleged that he was entitled to equitable tolling because, among other reasons, he was unaware of the Respondent's unlawful motivation for his termination until within the limitations period. The Board rejected this argument, writing:

      Neither the statute nor its implementing regulations indicate that a complainant must acquire evidence of retaliatory motive before proceeding with a complaint. Halpern's failure to acquire evidence of XL's motivation for his suspension and firing did not affect his rights or responsibilities for initiating a complaint pursuant to the SOX. See Wastak v. Lehigh Valley Health Network , 333 F.3d 120, 126 (3d Cir. 2003), citing Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1386 (3d Cir. 1994) ("a claim accrues in a federal cause of action upon awareness of actual injury, not upon awareness that this injury constitutes a legal wrong."). We therefore conclude that Halpern's failure to acquire such evidence does not constitute an extraordinary circumstance warranting tolling of the limitations period.

      The Board also rejected the Complainant's argument that he was entitled to equitable estoppel based on the assertion that the Respondent misled him into believing that he would not be fired. The Board, however, found no evidence that the Respondent misled the Complainant regarding his termination.

Administrator, Wage & Hour Division, USDOL v. The Board of Trustees of Indiana University , ARB No. 05-106, 2005-LCA-21 (ARB Aug. 31, 2005)

  • Title : Final Decision and Order Dismissing Appeal
  • Link : PDF
  • Case type : Immigration - labor condition application
  • Summary :
    • Timeliness of petition for ARB review : One of the aliens owed back wages asked for review as an "interested party" of Wage and Hour's decision not to impose a civil money penalty and alleged failure to investigate all of her complaints. The ALJ ruled against the alien and she made an untimely request for ARB review. She argued for equitable tolling based on the harm that the Defendant's actions would cause her if the petition was not received. The ARB ruled that was not a ground for tolling -- that instead she had to have shown that the Defendant had acted to deceive her for the purpose of preventing her from timely filing a petition for review. The alien cited several regulations to support her argument that her filing was timely, but the ARB found that they were not relevant, and that all the Complainant had to have done was read the ALJ's notice of appeal to learn the correct procedure. The alien also argued that she had attempted to fax her appeal, but the Board rejected this argument because its facsimile activity report showed no unsuccessful attempts on the day in question, and because "a petitioner who waits until the day a petition for review is due and then unsuccessfully attempts to serve it by facsimile has not demonstrated the necessary diligence to invoke the tolling provision." (footnote omitted).

Palmer v. Triple R Trucking , ARB No. 03-109, ALJ No. 2003-STA-28 (ARB Aug. 31, 2005)

  • Title :Final Decision and Order of Remand
  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary :
    • Reinstatement : The ARB remanded where the ALJ had made no findings on the question of reinstatement. The ARB noted that reinstatement is a statutory remedy but that there may be circumstances in which reinstatement is impossible or impractical. The ARB also vacated the ALJ's back pay award, finding that it may be necessary for the ALJ to recalculate given that there was scant evidence about the Complainant's earnings with the Respondent, that the Complainant had only worked for the Respondent for 10 days, that there was no agreement for future work, and that considerable time had passed since the complaint.

Peabody Construction Co. , ARB No. 04-070, ALJ No. 1994-DBA-45 (ARB Aug. 31, 2005)

  • Title : Final Decision and Order
  • Link : PDF
  • Case type : Davis-Bacon Act
  • Summary :
    • Delay in scheduling of hearing : When this matter was docketed before OALJ, the parties engaged in settlement negotiations and the initial presiding ALJ ordered submission of status reports. The case remained dormant for several years until the Chief ALJ issued an order directing a status report. The Administrator reported that part of the case had settled, that another part of the case had not settled, but debarment was not sought because the General Contractor's principal had died and business was no longer operating. The Administrator also reported that funds were still being withheld for the payment of back wages to several employees. OALJ then mistakeningly closed the case. After another delay of several years, the Associate Chief ALJ issued an order to show cause why the funds should not be disbursed. The General Contractor's response was to argue that DOL had failed to schedule a hearing within 60 days of the Order of Reference and therefore therefore the case against it should be dismissed. The Associate Chief ALJ found that the 60 day scheduling regulations cited by the General Contractor were not relevant, and ordered disbursement of the funds. On review, the ARB agreed with the Associate Chief ALJ that the cited regulations were not applicable to DBA cases. The ARB also rejected the General Contractor's defense of laches, finding that there was no allegation or proof of actual prejudice resulting from the delay.

    • Perfunctory appellate arguments : The ARB declined to consider arguments made by the General Contractor that it should be relieved from an order disbursing back pay to employees based on delay before OALJ where it had not identified an applicable statute of limitations nor cited any applicable case law. The ARB noted that appellate courts deem waived perfunctary appellate arguments.

Windhauser v. Trane , ARB No. 05-061, ALJ No. 2005-SOX-17 (ARB Aug. 31, 2005)

  • Title : Final Decision and Order Dismissing Appeal
  • Link : PDF
  • Case type : SOX Whistleblower
  • Summary :
    • Interlocutory appeal : The Respondent took an interlocutory appeal of the ALJ's order denying a stay of the Secretary's order of reinstatement. Subsequently the ALJ issued an order dismissing the case based on a settlement; the ALJ's order included a monetary sanction against the Respondent for its failure to reinstate the Complainant. The Respondent filed a timely petition for review of this order. The ARB then issued an order to show cause why the earlier interlocutory appeal should not be dismissed as moot. The Respondent, in response, agreed that the interlocutory appeal was moot, but stated that facts relating to the interlocutory appeal would likely be relevant to the appeal of the dismissal/sanctions order and requested that dismissal of the interlocutory appeal be without prejudice to its ability to present these facts in the appeal of the dismissal/sanctions order. The ARB ruled that the interlocutory review proceedings were part of the record for the Board's review on appeal of the sanctions order, and that the Respondent could present relevant facts in support of its petition for review of the sanctions order. The Board therefore dismissed the interloctory appeal as moot.

Hilburn v. James Boone Trucking , ARB No. 04-104, ALJ No. 2003-STA-45 (ARB Aug. 30, 2005)

  • Title : Final Decision and Order of Dismissal
  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary :
    • Protected activity under section 31105(a)(1)(A); preponderance of the evidence : The ALJ weighed the testimony concerning whether the Complainant had raised the issue of over hours driving with the dispatcher or in a meeting with supervisors about his failure to deliver a load. The ALJ found that the Complainant did not establish by a preponderance of the evidence that he had made a internal complaint protected by subsection (A) because no evidence corroborated the Complainant's version of events and because the dispatcher's and supervisors' testimony was as credible as that of the Complainant. The ARB found that the record supported these findings and affirmed the ALJ.

    • Protected activity under section 31105(a)(1)(B)(i); refusal to drive requires proof of actual violation; preponderance of the evidence standard Section 31105(a)(1)(B)(i) prohibits an employer from retaliating because an employee refuses to drive when to do so would violate a commercial motor vehicle regulation. A refusal to drive is protected only if the record establishes that the driving actually would have violated the motor vehicle regulation at issue. A good faith belief does not suffice. In the instant case, the Complainant failed to establish by a preponderance of evidence that driving would have actually resulted in a violation of the 70 hour/8-day driving rule where substantial evidence supported the ALJ's findings that driver's logs did not support the claim, that the Complainant's estimates and recollections were not reliable because his testimony was one year and nine months after the fact, there was conflicting testimony on key points, and different combinations of the evidence rendered different results on whether the rule would have been violated.

Hollingshead v. Conway Southern Express , ARB No. 05-046, ALJ No. 2004-STA-57 (ARB Aug. 30, 2005)

  • Title : Final Decision and Order Approving Settlement and Dismissing Complaint
  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary :
    • Settlement : Approval of settlement.

Lambka v. Custom Towaway, Inc. , ARB No. 05-044, ALJ No. 2004-STA-38 (ARB Aug. 30, 2005)

  • Title : Final Decision and Order Approving Settlement and Dismissing Complaint
  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary :
    • Settlement : Approval of settlement.

Lebo v. Piedmont-Hawthorne , ARB No. 04-020, ALJ No. 2003-AIR-25 (ARB Aug. 30, 2005)

  • Title : Final Decision and Order
  • Link : PDF
  • Case type : AIR21 Whistleblower
  • Summary :
    • Deliberate violation of air carrier safety requirement as preventing coverage : The ARB found that substantial evidence supported the ALJ's determination that 49 U.S.C. § 4121(d) did not apply to prevent coverage of the Complainant's complaint under AIR21. The Respondent alleged that the Complainant had stated that he had purposely mishandled a repair job to make a point. The Complainant consistently denied making the statement, and it was first presented in attorney-prepared affidavits over a year after the Complainant's discharge.

    • Protected activity; pretextual reason as evidence of discrimination : Where the evidence established that the Respondent's stated reason for discharging the Complainant � that it discovered that the Complainant's work was much worse that it first suspected when it suspended him � was pretext, the ARB found such pretext was evidence of discrimination.

    • Failure to reinstate; remedy for : The Complainant requested an opportunity to supplement or reopen the record to show that because the Respondent failed to reinstate him as ordered by the ALJ, the ARB should convert the reinstatement order into an order for front pay. The ARB denied the request, stating that the remedy for a failure to reinstate lies with a district court and not the ARB. See 49 U.S.C.A. § 42121(b)(6).

Parkes v. Transportation Corp. of America , ARB No. 04-110, ALJ No. 2003-STA-42 (ARB Aug. 30, 2005)

  • Title : Final Decision and Order Approving Settlement and Dismissing Complaint
  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary :
    • Settlement : Approval of settlement.

Roulett v. American Capital Access Service Corp. , ARB No. 05-045, ALJ No. 2004-SOX-78 (ARB Aug. 30, 2005)

  • Title : Final Decision and Order Dismissing Appeal
  • Link : PDF
  • Case type : SOX Whistleblower
  • Summary :
    • Removal to federal district court : Dismissal of appeal based on the Complainant's decision to seek de novo review in federal district court.

Wallace v. R & L Carriers , ARB No. 04-098, ALJ No. 2002-STA-40 (ARB Aug. 30, 2005)

  • Title : Final Decision and Order
  • Link : PDF
  • Case type : STAA Whistleblower
  • Summary :
    • Dismissal : The ARB affirmed the ALJ's treatment of the Complainant's notice that he wished to withdraw his request for a hearing in order to pursue possible state remedies as a request to withdraw objections to the Area Director's findings under 29 C.F.R. § 1978.111(c).

Allen v. Stewart Enterprises, Inc. , ARB No. 05-059, ALJ Nos. 2004-SOX-60 to 62 (ARB Aug. 17, 2005)

  • Title : Final Decision and Order Dismissing Appeal
  • Link : PDF
  • Case type : SOX Whistleblower
  • Summary :
    • Removal to Federal District Court : The Complainants filed their complaint on February 2, 2004. OSHA found that the complaint lacked merit, and the Complainants requested a hearing. On February 15, 2005 an ALJ issued a recommended decision finding against the Complainants. The Complainants filed a Petition for ARB review on March 22, 2005. On July 18, 2005, the Complainants informed the Board that they intended to purse their SOX case in federal court, and the Board dismissed the appeal pursuant to 18 U.S.C.A. � 1514A(b)(1)(B); 29 C.F.R. § 1980.114. The Board noted that, as usually is the case, the 180-day period for DOL to deciding the case had expired before the Complainants filed their petition with the Board.

Merritt v. Allegheny Airlines, Inc. , ARB No. 05-084, ALJ No. 2004-AIR-13 (ARB Aug. 17, 2005)

  • Title : Order Staying Proceedings
  • Link : PDF
  • Case type : AIR21 Whistleblower
  • Summary :
    • Bankruptcy Stay : The Respondent entered into bankruptcy proceedings. The ARB noted that it has previously held that the Bankruptcy Code's automatic stay provision applies to cases litigated by private parties arising under AIR 21's whistleblower protection provision; accordingly, the ARB stayed further proceedings until the automatic stay is lifted or the bankruptcy proceedings are concluded.

Powers v. Tennessee Dept. of Environmental & Conservation , ARB Nos. 03-061 and 03-125, ALJ Nos. 2003-CAA-8 and 16 (ARB Aug. 16, 2005)

Walsh v. Resource Consultants, Inc. , ARB No. 05-123, ALJ No. 2004-TSC-1 (ARB Aug. 10, 2005)

  • Title : Final Decision and Order Dismissing Interlocutory Appeal
  • Link : PDF
  • Case type : TSCA Whistleblower
  • Summary :
    • Interlocutory Appeal/Bifrucated Hearing : The ALJ issued a recommended decision on the merits, reserving the damages issues for additional briefing and consideration. The ALJ's decision included a notice of appeal rights, and the Respondent filed a appeal. Later, the parties filed a joint motion recognizing that the ALJ's order was interlocutory and not yet ripe for review, and requesting that the matter be remanded to the ALJ for calculation of damages and attorney's fees. The ARB granted the motion.