USDOL/OALJ Reporter: ARB Decision Caselist - October 2017

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INTERLOCUTORY REVIEW; ARB NOTES THAT WHETHER INTERLOCUTORY REVIEW IN OFCCP CASES IS AVAILABLE IS AN OPEN QUESTION; INSTEAD OF DECIDING THAT QUESTION, ARB DETERMINED WHETHER SUCH REVIEW WAS WARRANTED IN THE CASE BEFORE IT; REVIEW DENIED IN VIEW OF LACK OF CERTIFICATION BY ALJ, INAPPLICABILITY OF COLLATERAL ORDER EXCEPTION, DISTINGUISHING FACTORS FROM HONEYWELL , AND FAILURE TO MEET CHENEY CRITERIA FOR MANDAMUS

INTERLOCUTORY REVIEW UNDER CHENEY WRIT OF MANDAMUS CRITERIA; WHETHER ARB HAS MANDAMUS AUTHORITY IS AN OPEN QUESTION; RATHER THAN DECIDING THAT QUESTION, ARB FINDS THAT INTERLOCUTORY REVIEW WAS NOT WARRANTED WHERE IT IS COMMON TO DENY SUCH REVIEW OF A MOTION TO DISMISS AND WHERE THE ALJ MADE A REASONABLE INTERPRETATION OF THE REGULATIONS IN FINDING THAT THE PLEADING STANDARD FOR OFCCP ADMINISTRATIVE COMPLAINTS WAS NOT GOVERNED BY IQBAL/TWOMBLY PLAUSIBILITY STANDARD

In OFCCP v. JPMorgan Chase & Co. , ARB No. 17-063, ALJ No. 2017-OFC-7 (ARB Oct. 5, 2017), OFCCP filed an Administrative Complaint alleging that the Respondent violated E.O. 11246 and its implementing regulations by discriminating against female employees in regard to compensation. The ALJ denied the Respondent’s motion to dismiss for failure to state a claim. The Respondent had based on the motion on the ground that the complaint did not meet the plausibility standard for stating a claim under FRCP 8 as set forth in Ashcroft v. Iqbal , 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007) ( Iqbal/Twombly ).  The ALJ also denied the Respondent’s request for reconsideration and for certification of an interlocutory appeal.  The Respondent argued before the ARB that exceptional circumstances for interlocutory review through a writ of mandamus existed under Cheney v. U.S. District Court for the District of Columbia , 542 U.S. 367, 380-381 (2004).  The ARB denied interlocutory review.

The ARB first noted that the regulations implementing E.O. 11246 do not provide a mechanism for interlocutory review. The ARB noted that some caselaw indicated that such review is not available, but also noted that the caselaw was not uniform and that the Secretary’s Order delegating authority to the ARB includes the authority to conduct interlocutory review in exceptional circumstances.  The ARB thus proceeded to consider whether interlocutory review was warranted in this case.

The ARB noted that interlocutory appeals are disfavored and that there is a strong policy against piecemeal appeals. The ARB noted that the ALJ had not certified the question as a controlling question of law under 28 U.S.C. § 1292(b), a statute that the ARB uses as guidance on such matters.  The ARB noted that the Respondent had not addressed the collateral order exception, presumably because the ALJ’s denial of its motion to dismiss did not involve a collateral order.  The ARB distinguished the granting of interlocutory review in OFCCP v. Honeywell, Inc., 1977-OFC-3 (Sec’y June 2, 1993), on the grounds that interlocutory review in the instant case would not encourage the parties to pursue voluntary mediation as it had in Honeywell , and that unlike in Honeywell , OFCCP objected to interlocutory review in this case.

The ARB noted that it has not yet been determined whether it has mandamus authority. The ARB continued to pretermit the question in the instant case, and instead found that the Respondent failed to demonstrate that the circumstances met the Cheney criteria.  The ARB noted that it is common for courts to deny interlocutory review of motions to dismiss.  The ARB also found that the Respondent had not demonstrated that its right to a writ was clear and indisputable because the ALJ’s finding that OFCCP pleading standard at 41 C.F.R. § 60-30.5(b) applies to this complaint was a reasonable interpretation.

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AFFIRMATIVE DEFENSE; ARB CLARIFIES THAT CONDUCT FOR WHICH COMPARATOR EMPLOYEES WERE DISCIPLINED MUST BE FOR THE SAME OR SIMILAR VIOLATIONS BUT THAT A RESPONDENT DOES NOT NEED TO ESTABLISH THAT CONDUCT WAS IDENTICAL; ALJ SHOULD WEIGH SIGNIFICANCE OF COMPARATORS CASE-BY-CASE; COMPARATOR EMPLOYEES MUST HAVE ENOUGH IN COMMON TO ALLOW FOR A MEANINGFUL COMPARISON

In Echols v. Grand Trunk Western Railway, Co. , ARB No. 16-022, ALJ No. 2014-FRS-49 (ARB Oct. 5, 2017), the Complainant sustained a groin injury when he attempted to push a misaligned drawbar into place and could not do so, so he lifted the drawbar into place in violation of one of the Respondent’s safety rules that prohibited lifting a drawbar.  When the Complainant reported the injury, the Respondent began a disciplinary investigation process, but offered to waive the investigation and hearing if the Complainant admitted that his misconduct resulted in the injury. The Complainant signed the waiver and was suspended without pay.  On appeal to the ARB, the only issue was whether the Respondent proved by clear and convincing evidence that it would have taken the adverse action absent any protected activity.  The ALJ found that the Respondent met its burden by showing that it routinely monitored compliance with the rule in question, formally trained employees on compliance with the rule, and consistently imposed equivalent discipline on employees who violate the rule in the absence of an injury report.  The ALJ also found that the rule was not vague or subject to manipulation and use as pretext for unlawful discrimination.  The ALJ applied the factors discussed in DeFrancesco v. Union R.R. Co. , ARB No. 13-057, ALJ No. 2009-FRS-9, slip op. at 11-12 (ARB Sept. 30, 2015).  The Complainant contended that the ALJ had wrongfully applied the DeFrancesco “similarly situated employee” factor, arguing that the Respondent had to prove that other employees engaged in identical conduct to that of the Complainant.  The Respondent argued that it could use comparators who had violated the rule more generally.  The rule included prohibitions on other actions in addition to the drawbar lift prohibition, and the ALJ agreed with the Respondent that there was no meaningful distinction in the various prohibitions covered in the rule.

The ARB acknowledged that the DeFrancesco decision contained equivocal language that supported both positions.  It expressly disavowed, however, language that suggested that the relevant unsafe conduct must be identical , and instead stated that a respondent may use evidence that it has applied a clearly-established company policy in a non-disparate manner in regard to discipline against employees who committed the same or similar violations .  The ARB declined to set a bright line rule on comparators, and instead allowed that ALJs “have the flexibility to weigh the significance of comparators case-by-case, depending on the level of similarity or lack of similarity among the comparators.” USDOL/OALJ Reporter at 5, quoting Speegle v. Stone and Webster Constr. Inc. , ARB No. 13-074, ALJ No. 2005-ERA-6, slip op. at 11 n.66 (ARB Apr. 25, 2014)).  The ARB stated that “[i]n any event, ‘similarly situated’ comparator employees must have enough in common to allow for a meaningful comparison.” Id .  In the instant case, the ARB found that substantial evidence supported the ALJ’s factual findings, and the ARB affirmed the ALJ’s affirmative defense determination.

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TIMELINESS OF COMPLAINT; GROUNDS FOR EQUITABLE TOLLING NOT ESTABLISHED BASED ON ALLEGATION THAT ATTORNEY FAILED TO INFORM COMPLAINANT OF LIMITATIONS PERIOD (A LITIGANT BEING ULTIMATELY RESPONSIBLE FOR ACTS AND OMISSIONS OF THEIR ATTORNEYS)

TIMELINESS OF COMPLAINT; GROUNDS FOR EQUITABLE TOLLING NOT ESTABLISHED BASED ON COMPLAINANT’S BIPOLAR DISORDER WHERE THE RECORD SHOWED THAT COMPLAINANT WAS NONETHELESS CAPABLE OF MANAGING HIS PERSONAL AFFAIRS

In Tardy v. Delta Air Lines , ARB No. 16-077, ALJ No. 2015-AIR-26 (ARB Oct. 5, 2017), the ARB affirmed the ALJ’s determination  that the Complainant was not entitled to equitable tolling of the limitations period for filing his AIR21 complaint due to incompetence of counsel and his own mental illness.  The Complainant had hired an attorney, but that attorney subsequently withdrew, and the Complainant appeared before the ALJ pro se.   The Complainant alleged that the counsel failed to inform him of AIR21’s 90 day limitations period.  The ARB noted that it has consistently held that held that clients are accountable for the acts and omissions of their attorneys, that that ignorance of the law is neither a sufficient basis for granting equitable tolling by itself or as an independent ground.  The ARB found nothing in the record in this case that suggested that the initially retained counsel, or the Complainant’s subsequent lack of legal representation contributed to the failure to timely file the AIR21 complaint.

The ARB also found that substantial evidence supported the ALJ’s finding that the Complainant’s bipolar disorder did not render him unable to pursue the complaint. The ARB found that medical records showed that the Complainant’s speech and thought processes were intact during the AIR21 limitations period; that the Complainant had testified that he would have immediately gone to OSHA if he had known of limitations period; that the Complainant had testified that his mental condition did not prevent him from working or managing his own affairs; and that the testimony of a witness who testified on the Complainant’s behalf supported a finding that the Complainant suffered from bipolar disorder but confirmed that the Complainant still possessed mental acuity.