The following case summaries were created by Administrative Review Board staff.
Gloss v. Tata Chemicals North America, ARB No. 2022-0054, ALJ No. 2020-CAA-00008 (ARB Sept. 20, 2022)
INTERLOCUTORY REVIEW; INTERLOCUTORY REVIEW NOT JUSTIFIED UNDER THE COLLATERAL ORDER EXCEPTION
In Gloss v. Tata Chemicals North America, ARB No. 2022-0054, ALJ No. 2020-CAA-00008 (ARB Sept. 20, 2022), the ARB dismissed Complainant's interlocutory appeal. Complainant appealed the ALJ's Order Granting in Part and Denying in Part Respondent's Motion for Summary Decision. Because the ALJ's order did not dispose of all of Complainant's claims, the appeal was interlocutory. Therefore, the ARB ordered the parties to submit briefings on whether the appeal should be dismissed. After receiving the parties' briefs, the ARB determined that the interlocutory appeal did not fall within the "collateral order" exception permitting review because the issues on appeal were not separate from the merits of the action and were fully reviewable upon appeal from a final decision of the ALJ.
Petitt v. Delta Airlines, Inc., ARB No. 2021-0014, ALJ No. 2018-AIR-00041 (ARB Sept. 21, 2022) (Order of Dismissal)
ATTORNEYS' FEE PETITION
In Petitt v. Delta Airlines, Inc., ARB No. 2021-0014, ALJ No. 2018-AIR-00041 (ARB Sept. 21, 2022) (Order of Dismissal), the Board dismissed Complainant's Petition for Attorneys' Fees. In a prior decision, Petitt v. Delta Airlines, Inc., ARB No. 2021-0014, ALJ No. 2018-AIR-00041 (ARB Mar. 29, 2022) (Order of Remand), the ARB affirmed the ALJ on the merits and the award of back pay damages. The ARB vacated the ALJ's front pay award as legal error and award of compensatory damages for lack of evidentiary support. The ARB remanded the case back to the ALJ for further proceedings.
While the case was still before the ALJ on remand, Complainant submitted to the Board a Petition for Attorneys' Fee. After review, the ARB dismissed Complainant's petition because it was not yet ripe for review because a question remained regarding how successful Complainant would ultimately be in her AIR 21 claim as to damages. The ARB, relying on Hensley v. Eckerhart, 461 U.S. 424 (1993), noted that the amount of attorneys' fees should be in relation to the results which Complainant will ultimately achieve. The ARB explained that Complainant may file a new petition for attorneys' fees once the ALJ issued a final ruling as to damages and in consideration of any future appeal.
Jamek Engineering Services, Inc., ARB No. 2022-0039, ALJ No. 2017-DBA-00021 (ARB Sept. 22, 2022)
DECISION AND ORDER ON REMAND; ALJ CORRECTLY AWARDED BACK WAGES FOR ALL HOURS APPRENTICES WERE UNDERPAID; PETITIONER DID NOT INTEND TO PAY FRINGE BENEFITS; PETITIONER'S AGGRAVATED AND WILLFUL VIOLATIONS OF THE DBRA WARRANTED DEBARMENT
In Jamek Engineering Services, Inc., ARB No. 2022-0039, ALJ No. 2017-DBA-00021 (ARB Sept. 22, 2022), the ARB affirmed the ALJ's Decision and Order on Remand. The ARB held that the ALJ correctly calculated the back wages owed to apprentices employed by Petitioner using Petitioner's internal payroll journals and that Petitioner's previous restitution payments to the employees did not cover all wages owed. Further, the ARB declined to disturb the ALJ's finding that Petitioner did not intend to pay the required quarterly fringe benefits to its employees when it submitted weekly certified payrolls for the fourth quarter of 2015 that included attestations that the benefits "have been or will be made." Accordingly, because Petitioner did not make the fringe benefits payments on time and did not intend to during the fourth quarter, Petitioner violated the DBRA by submitting inaccurate certified payrolls. Last, the ARB agreed that Petitioner's violations of the DBRA warranted debarment from federal contracting because they were "aggravated and willful" and that there were no extraordinary circumstances that justified shortening the ALJ's three-year debarment order.
Petitt v. Delta Airlines, Inc., ARB No. 2021-0014, ALJ No. 2018-AIR-00041 (ARB Sept. 26, 2022) (Order Denying Motion for Clarification, or in the Alternative, Petition for Appeal)
DENIAL OF MOTION FOR CLARIFICATION FROM THE BOARD WHILE CASE ON REMAND BEFORE THE ALJ
In Petitt v. Delta Airlines, Inc., ARB No. 2021-0014, ALJ No. 2018-AIR-00041 (ARB Sept. 26, 2022) (Order Denying Motion for Clarification, or in the Alternative, Petition for Appeal), the Board denied Respondent's Motion for Clarification. In a prior decision, Petitt v. Delta Airlines, Inc., ARB No. 2021-0014, ALJ No. 2018-AIR-00041 (ARB Mar. 29, 2022) (Order of Remand), the ARB affirmed the ALJ on the merits and the award of back pay damages. The ARB vacated the ALJ's front pay award as legal error and award of compensatory damages for lack of evidentiary support. The ARB found that the ALJ's award of front pay damages was legal error because it was equivalent to an award of future lost earnings but stated on remand the ALJ may reopen the record for Complainant to present evidence that Respondent's violation of AIR 21 caused future lost earnings. As for the award of compensatory damages, the ARB vacated the ALJ's award because the Board found the record was void of evidence warranting $500,000 in compensatory damages. The ARB stated on remand the ALJ may reopen the record for evidence on Complainant's emotional distress, humiliation, and loss of reputation as a result of Respondent's violation of AIR 21. The ARB remanded the case back to the ALJ for further proceedings.
While the case was still before the ALJ on remand, Respondent submitted to the Board a Motion for Clarification of the Board's Remand Order, or in the Alternative, Petition for Appeal Pursuant to the Collateral Issue Doctrine, and Motion to Stay Post-Remand Proceedings Before the Tribunal. Respondent contended that a clarification from the Board was necessary because the ALJ's evidentiary rulings on remand and the Complainant's filings on remand indicated that Complainant was attempting to potentially recover damages for new claims of retaliation.
The Board denied Respondent's request finding that Respondent's concerns were speculative and did not present the type of exceptional circumstance that justify the Board's discretionary interlocutory review or intervention. The Board noted that its Order of Remand was not vague or ambiguous, and the ALJ's orders on remand appeared to be in accordance with the Board's directives on remand and did not express any confusion over the Board's Order of Remand.
Petitt v. Delta Airlines, Inc., ARB No. 2022-0047, ALJ No. 2018-AIR-00041 (ARB Sept. 26, 2022) (Decision and Order Denying Interlocutory Appeal)
DENIAL OF INTERLOCUTORY APPEAL
In Petitt v. Delta Airlines, Inc., ARB No. 2022-0047, ALJ No. 2018-AIR-00041 (ARB Sept. 26, 2022) (Decision and Order Denying Interlocutory Appeal), the Board denied Respondent's interlocutory appeal. In a prior decision, Petitt v. Delta Airlines, Inc., ARB No. 2021-0014, ALJ No. 2018-AIR-00041 (ARB Mar. 29, 2022) (Order of Remand), the ARB affirmed the ALJ on the merits and the award of back pay damages. The ARB noted that Respondent did not challenge the ALJ's order to publish the D. & O. to pilots and managers as well as to post copies of the decision. The ARB remanded the case back to the ALJ for further proceedings after vacating the ALJ's front pay award as legal error and award of compensatory damages for lack of evidentiary support.
Before the ALJ on remand, Complainant filed a Motion for an Order Compelling Respondent's Immediate Compliance with Tribunal's Standing Order to Deliver and Post Tribunal's Decision Dated December 21, 2020. In response, Respondent filed an opposition and Cross-Motion to Stay Enforcement of the Tribunal's Decision Dated December 21, 2020.
The ALJ issued an Order Granting Complainant's Motion to Direct Respondent to Publish and Post the Tribunal's Decision, 2020 Decision and Order, rejecting Respondent's Cross-Motion to stay publication. The ALJ's 2022 order directed Respondent to publish as to the same extent ordered in the December 21, 2020 decision.
Respondent submitted to the Board a petition for review of the ALJ's 2022 Order, arguing that the Board had jurisdiction because the ALJ's 2022 Order was immediately appealable as either (1) an order granting an injunction under 28 U.S.C § 1292(a)(1); (2) as a partial final order appealable under Rule 54(b) of the Federal Rules of Civil Procedure; and/or (3) under the collateral order doctrine recognized under 28 U.S.C § 1291.
The Board denied Respondent's interlocutory appeal, finding that the ALJ's Order was not immediately appealable (1) as an order granting an injunction under 28 U.S.C. § 1292(a)(1) because the ALJ's new order was simply enforcing the 2020 decision and was not an injunction directing any new or different injunctive relief; (2) as a partial final order appealable under Rule 54(b) of the Federal Rules of Civil Procedure because the ALJ's new order (a) did not conclusively resolve a claim for relief and (b) the ALJ did not certify the order as deserving of interlocutory review under the rule; and (3) as an order under the collateral order doctrine because it did not satisfy all three requirements for review under the collateral order doctrine; specifically, the ALJ's new order did not resolve an important issue completely separate from the merits because it simply enforced a standing directive, nearly two years old, that had existed since the ALJ's publication of the Decision and Order.
Carter v. BNSF Railway Co., ARB No. 2021-0035, ALJ No. 2013-FRS-00082 (ARB Sept. 26, 2022) (Decision and Order)
CONTRIBUTING FACTOR AND AFFIRMATIVE DEFENSE; COMPLAINANT'S EMPLOYMENT WAS TERMINATED FOR DISHONESTY; HIS FRSA-PROTECTED CONDUCT DID NOT CONTRIBUTE TO HIS EMPLOYMENT TERMINATION; RESPONDENT WOULD HAVE TERMINATED COMPLAINANT'S EMPLOYMENT EVEN IF HE HAD NOT ENGAGED IN FRSA-PROTECTED ACTIVITY
In Carter v. BNSF Railway Co., ARB No. 2021-0035, ALJ No. 2013-FRS-00082 (ARB Sept. 26, 2022), the Complainant suffered a workplace injury in 2007 that he reported to his supervisor. In 2008 he filed a Federal Employer's Liability Act (FELA) claim in state court. He was deposed in relation to the FELA claim. In 2012 the Respondent notified him that it would be conducting an investigatory hearing about inconsistencies between his deposition testimony and his employment application. In the interim, Complainant failed to clock in one day when he was late for work. Respondent notified Complainant that it would also conduct an investigatory hearing into dishonesty regarding the failure to clock in. Two internal hearings were conducted, and the Respondent sent discharge letters to Complainant after the hearings. Complainant filed an FRSA retaliation complaint with OSHA on June 26, 2012. After a hearing, the ALJ found that the Respondent violated the FRSA and unlawfully discriminated against Complainant. The ALJ ordered Respondent to reinstate Complainant and pay him back pay with interest, punitive damages, and attorney's fees.
On appeal, the ARB affirmed the ALJ's decision on June 21, 2016. The ARB observed that the ALJ seemingly relied on a strict "chain of events" type of analysis that it declined to endorse. The ARB found, however, that the ALJ had made sufficient findings on circumstantial evidence to support a finding of retaliation.
The Eighth Circuit Court of Appeals vacated the ARB's decision sub nom. in BNSF Ry. Co. v. United States Dep't of Labor Admin. Rev. Bd. , 867 F.3d 942 (8th Cir. 2017). The court found that the ARB grounded its affirmance on findings insufficient to support its contributing factor and affirmative defense rulings. The court reversed the award of damages and remanded the case to the ARB.
The ARB remanded the case to the Office of Administrative Law Judges. On remand, the parties agreed that the case could be disposed of on briefs. An ALJ issued a Decision and Order on Remand in which she concluded that Complainant failed to prove that Respondent retaliated against him for engaging in activities protected by the FRSA in 2007. She also concluded that Respondent had proven by clear and convincing evidence that it would have fired Complainant for dishonesty in the absence of any FRSA-protected activity. Complainant appealed the ALJ's ruling to the ARB. In his Petition for Review Complainant disagreed with the ruling on the merits and argued that the ALJ committed several procedural errors.
The ARB held that Complainant established the first two elements of his claim: he engaged in protected activity when he reported his workplace injury in 2007, and he suffered adverse employment action when his employment was terminated in 2012. But the record supported the ALJ's conclusion that Respondent believed Complainant was guilty of several acts of dishonesty which, when discovered, resulted in the termination of his employment in accordance with workplace policies.
The record supported the ALJ's finding that Complainant engaged in dishonesty when he applied for a position with Respondent. The employment application informed applicants that omissions or misrepresentations would be grounds for dismissal at any time. Complainant checked "no" on the application where it asked if he had missed more than two days of work due to illness, injury, hospitalization, or surgery, as well as where it asked if he had experienced any other surgeries, back injuries, or back pain. The record established that Complainant had failed to disclose three injuries, one of which required surgery. Complainant was also required to disclose his complete military history on the application but failed to do so.
The record also supported the ALJ's finding that Complainant clocked in late to work on February 5, 2012 and provided conflicting statements at the internal hearing about his attendance, and that these statements led to Respondent's conclusion that Complainant was being dishonest.
Complainant argued that he was targeted for retaliation because he engaged in protected activity in 2007. The record supported the ALJ's conclusion that this assertion was contradicted by the evidence showing that Respondent's managers were performing their jobs pursuant to company policy.
The ARB also held that substantial evidence supported the ALJ's conclusion that Respondent would have terminated Complainant's employment even if he had not complained about his injury in 2007. The ARB indicated that the ALJ concluded that Respondent's managers believed in good faith that Complainant was guilty of dishonesty, and that the notification of his injury or the FELA lawsuit played no part in their recommendations or the ultimate decision to terminate his employment.
PROCEDURAL AND EVIDENTIARY RULINGS; ALJS DID NOT ABUSE THEIR DISCRETION OR COMMIT ERRORS OF LAW IN MAKING PROCEDURAL AND EVIDENTIARY RULINGS
In Carter v. BNSF Railway Co., ARB No. 2021-0035, ALJ No. 2013-FRS-00082 (ARB Sept. 26, 2022), four ALJs presided over the case between 2013 and 2021. Complainant's Petition for Review alleged several errors committed by the ALJs, but none of the allegations were supported by the record.
Complainant argued that he should have been allowed to amend his complaint in 2019 to add his 2008 FELA claim as an additional protected activity (and therefore additional grounds for retaliatory conduct), and to add a claim that Respondent interfered with his medical treatment in 2007. The ARB noted that the Eighth Circuit had already noted in its remand that the FRSA may protect a notice of injury made in the course of FELA litigation, but it does not protect the FELA litigation itself. Additionally, Complainant's claim that Respondent interfered with his medical treatment in 2007 was barred by FRSA's statute of limitations because he did not file his OSHA complaint until 2012.
Complainant argued that one ALJ, who ruled on this matter in 2021, erred by not considering the credibility determinations made by another ALJ, who presided over the hearing in 2014. The ARB concluded that the latter ALJ adopted the earlier ALJ's credibility determinations where appropriate while also making her own credibility determinations as instructed by the ARB and the Eighth Circuit and did not abuse her discretion in so doing.
Complainant also argued that one ALJ erred as a matter of law by refusing to "find an adverse inference" against Respondent for not calling one of Respondent's managers to testify. The ARB noted that the inference rule permits an adverse inference to be drawn but does not create a conclusive presumption against the party failing to call the witness. It also noted that there was nothing preventing Complainant from calling that witness.
Finally, Complainant alleged that one ALJ erred by misidentifying the manager who terminated his employment. The ARB held that any statement that incorrectly described one of Respondent's managers as the one who actually terminated Complainant's employment did not constitute reversible error because it did "not change the essential facts that led to [Complainant's] discharge."
Herring v. South Central Florida Express, ARB No. 2022-0061, ALJ Nos. 2022-FRS-00029, -00030 (ARB Sept. 26, 2022) (Order of Dismissal)
MOTION TO WITHDRAW PETITION FOR REVIEW
In Herring v. South Central Florida Express, ARB No. 2022-0061, ALJ Nos. 2022-FRS-00029, -00030(ARB Sept. 26, 2022), the ARB dismissed the administrative case because Complainant filed notice that he filed an original action in the United States District Court for the Southern District of Florida.
Bauche v. Masimo Corp., ARB No. 2022-0035, ALJ No. 2022-SOX-00010 (ARB Sept. 27, 2022) (Decision and Order of Remand)
TIMELINESS OF COMPLAINT; COMPLAINANT'S ALLEGED LACK OF KNOWLEDGE OF RESPONDENT'S RETALIATORY MOTIVE, DESIRE TO PRESERVE HIS FIFTH AMENDMENT PRIVILEGES, AND FEAR OF REPRISAL DID NOT WARRANT EQUITABLY MODIFYING THE LIMITATIONS PERIOD; COMPLAINANT'S FACTUAL ALLEGATIONS UNDERMINED HIS ASSERTED REASONS FOR DELAYING FILING HIS SOX CLAIM WITH OSHA
In Bauche v. Masimo Corp., ARB No. 2022-0035, ALJ No. 2022-SOX-00010 (ARB Sept. 27, 2022), Complainant alleged Respondent took adverse action against him as part of a cover-up for, and in anticipation of Complainant reporting, Respondent's alleged insurance and securities fraud. However, Complainant did not file his complaint with OSHA within 180 days of the occurrence of most of the alleged adverse action, as required by SOX. The ARB affirmed the ALJ's conclusion that Complainant's claims with respect to these adverse actions were time-barred, and that Complainant failed to present any factual or legal bases to equitably toll or modify the limitations period.
First, Complainant argued that the limitations period should be tolled until he discovered that Respondent's alleged adverse actions were motivated by Respondent's desire to cover up its fraud and preemptively retaliate against him. According to Complainant, that did not occur until shortly before he filed his complaint with OSHA, when he finally pieced together Respondent's fraud and its "nexus and interrelation" with the adverse action. However, contrary to Complainant's arguments, Complainant's allegations below conclusively demonstrated that he was aware of Respondent's alleged fraud and cover-up, and, thus, its purported reasons for taking adverse action against him, years before he filed with OSHA.
Second, Complainant argued that he had to delay filing his SOX complaint with OSHA while criminal charges were pending against him. According to Complainant, pursuing his administrative claim against Respondent risked impacting his Fifth Amendment privilege to be free from self-incrimination in the criminal case. The ARB agreed with the ALJ and several federal district courts that a complainant's purported desire to invoke and preserve his right to be free from self-incrimination is not a legally sufficient basis to equitably toll the filing period.
Finally, Complainant argued that he was deterred from filing his SOX complaint with OSHA because he feared reprisal from Respondent, based on alleged threats Respondent made and other hostile actions Respondent engaged in at and after the time it terminated Complainant's employment. Although the ALJ did not address this argument, the ARB concluded that equitable modification of the limitations period could not be justified in the circumstances presented by Complainant. Specifically, although Complainant alleged that he feared reprisal if he reported Respondent's wrongdoing, he actively participated in multiple legal interactions with and against Respondent in federal and state court and openly accused Respondent of the same fraud and wrongdoing as alleged in this case for years before he finally filed his SOX complaint with OSHA. Complainant's conduct did not reflect the "actions of an individual who has lost his free will and judgment" as required to justify equitable modification. "Instead, [Complainant's actions] reflect a willingness, if not eagerness, to challenge [Respondent]'s alleged wrongdoing."
FAILURE TO STATE A CLAIM; COMPLAINANT'S ALLEGATION THAT "BLACKLISTING" OCCURRED, WITHOUT MORE, DID NOT PROVIDE FAIR NOTICE OF HIS CLAIM, BUT COMPLAINANT WOULD BE PERMITTED THE OPPORTUNITY TO ARTICULATE THE FACTUAL BASIS FOR HIS CLAIM ON REMAND
In Bauche v. Masimo Corp., ARB No. 2022-0035, ALJ No. 2022-SOX-00010 (ARB Sept. 27, 2022), Complainant alleged that, among other forms of adverse action, he suffered from "blacklisting" by Respondent. Aside from this bare and conclusory legal assertion, Complainant did not elaborate on his blacklisting claim, or articulate the factual basis for it, including when or how it occurred. Accordingly, the ARB determined that Bauche did not provide fair notice of his blacklisting claim and, unlike with respect to the other alleged adverse action, did not provide sufficient information to permit the Board to assess the timeliness or legal sufficiency of the claim. The ARB determined that given the posture and circumstances of the case, Complainant should be afforded the opportunity to amend his initial filings to articulate the factual basis for his blacklisting claim. Accordingly, the ARB remanded the case to the ALJ.
Judge Burrell dissented from the majority's decision in part. Judge Burrell agreed with the majority's conclusion that Complainant's allegations failed to provide notice of his blacklisting claim. However, Judge Burrell did not agree that the claim should be remanded to give Complainant the opportunity to amend. In particular, Judge Burrell noted that Complainant did not request leave to amend or argue the issue to the ARB.
Administrator, Wage and Hour Div., USDOL v. Goldstar Amusements, Inc., ARB No. 2022-0027, ALJ Nos. 2021-TNE-00027, -00028 (ARB Sept. 30, 2022) (Decision and Order Denying Interlocutory Appeal)
INTERLOCUTORY APPEAL; COLLATERAL ORDER EXCEPTION; ALJ'S SUBPOENA ORDER IS NOT EFFECTIVELY UNREVIEWABLE ON APPEAL FROM A FINAL JUDGMENT
In Administrator, Wage and Hour Div., USDOL v. Goldstar Amusements, Inc., ARB No. 2022-0027, ALJ Nos. 2022-TNE-00027, -00028 (ARB Sep. 30, 2022), the ALJ issued a subpoena order for Respondents to depose representatives of the United States Citizenship and Immigration Services and the Department of Labor's Office of Foreign Labor Certification. The Administrator filed an interlocutory appeal with the Board, contending that the ALJ did not have authority to issue administrative subpoenas under the H-2B provisions of the INA. As the issue was not certified for interlocutory review pursuant to 28 U.S.C. § 1292(b), the Board analyzed whether the ALJ's subpoena order satisfied the collateral order exception based on the three factors identified in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).
First, the Board determined that the ALJ's subpoena order conclusively determined the disputed question of whether the ALJ had authority to issue administrative subpoenas under the H-2B provisions of the INA.
Second, the Board determined that the ALJ's subpoena order resolved an important issue completely separate from the merits of the action. Although discovery orders are generally not immediately appealable collateral orders, the Board determined that the ALJ's authority to issue subpoenas goes beyond a run-of-the-mill discovery dispute. The Board determined that this issue is completely separate from the merits of the H-2B violations that are core to this case.
Third, the Board determined that the ALJ's subpoena order is not effectively unreviewable on appeal from a final judgment. The Board determined that there are other methods of review of subpoena orders, which include petitioning a court for mandamus and the party adversely affected by the subpoena order going to district court. The Administrator argued that these are inadequate alternatives because it will inevitably cause delay, which will hinder the Department of Labor Wage and Hour Division's enforcement actions and thus imperil a substantial public interest. However, the Board determined that subpoenas for depositions fall under the general rule that pre-hearing discovery rules are not immediately appealable. The Board also determined that the Administrator failed to show delaying review would imperil a substantial public interest, noting that the Administrator did not distinguish the ALJ's subpoena order from other pre-hearing discovery orders. The Board further determined that delay in resolving administrative proceedings is not a harm that would justify immediate appeal.
As the Administrator did not satisfy the third Cohen factor, the Board concluded that the ALJ's subpoena order is not appealable under the collateral order exception, and therefore denied the Administrator's petition for interlocutory review.
Perkins v. Cavicchio Greenhouses, Inc., ARB No. 2022-0018, ALJ No. 2019-ACA-00005 (ARB Sept. 30, 2022) (Order of Remand)
ORDER OF REMAND; ARB REMANDS AN ALJ'S ORDER GRANTING SUMMARY DECISION BECAUSE THE RECORD ON APPEAL WAS NOT SUFFICIENTLY CLEAR TO DETERMINE WHETHER COMPLAINANT'S COMPLAINTS IMPLICATED A REQUIREMENT SET FORTH BY THE ACA
In Perkins v. Cavicchio Greenhouses, Inc., ARB No. 2022-0018, ALJ No. 2019-ACA-00005 (ARB Sept. 30, 2022), the ARB reversed and remanded the ALJ's Order Granting Summary Decision. Respondent originally hired Complainant as a "temporary employee." During Complainant's tenure with Respondent, Complainant alleged that Respondent offered him a permanent position. In the following months, Complainant also alleged that he conversed with Respondent's business manager regarding health benefits he thought he was entitled to as a permanent employee. Respondent's business manager informed Complainant that he would look into it and talk to someone in human resources. Complainant was subsequently injured outside of work and e-mailed Respondent's business manager to inquire about receiving health benefits through Respondent's health plan. The business manager eventually called Complainant and told him that he was not eligible for health insurance as a temporary employee and that Respondent would not "bring him back . . . after he recovers from his injury."
Respondent filed a Motion for Summary Decision on the grounds that there was no genuine dispute as to any material fact that Complainant did not engage in protected activity under the Patient Protection and Affordable Care Act (ACA). The ALJ granted Respondent's Motion during a conference call after reviewing the parties' pleadings and discussing the case with the parties.
On appeal, Complainant contended that the ALJ erred in granting the Motion for Summary Decision because the ALJ's conclusion that he did not engage in protected activity was an improper factual determination at the summary decision stage. The Board agreed with Complainant because the record on appeal was not sufficiently clear to allow the Board to ascertain whether Complainant's complaints implicated a requirement set forth by the employer shared responsibility provisions within Title I of the ACA. The Board focused on the parties' dispute about Complainant's employment status, the parties' brief discussion on the employer shared responsibility provisions, and the shared responsibility provisions' complicated and extensive nature, along with the ACA's employee protection provisions' broad language.
Ultimately, the Board remanded the case to the ALJ to determine: (1) whether Respondent was an applicable large employer under the ACA; and (2) whether Complainant was a full-time employee under the ACA. The Board then instructed the ALJ, upon making those determinations, to reassess whether Complainant engaged in protected activity and if necessary, to address the other elements of Complainant's claim.