USDOL/OALJ Law Library: STAA Whistleblower Digest, DIVISION IX A -- 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. Palmer v. Triple R Trucking , ARB No. 03-109, ALJ No. 2003-STA-28 (ARB Aug. 31, 2005).

[STAA Whistleblower Digest IX A]
REINSTATEMENT MUST BE AWARDED EVEN WHERE THE COMPLAINANT HAS ALREADY FOUND NEW EMPLOYMENT; HOWEVER, WHERE NEITHER PARTY APPEALS A FAILURE BY THE ALJ TO AWARD REINSTATMENT, THE ISSUE IS DEEMED WAIVED

In Ass't Sec'y & Mailloux v. R & B Transportation, LLC , ARB No. 07-084, ALJ No. 2006-STA-12 (ARB June 16, 2009), the ALJ found that the Respondent violated the whistleblower provision of the STAA, and awarded the Complainant back pay through the date he found a new job, and litigation costs. The ARB observed that reinstatement is an automatic remedy under the STAA, and that the ALJ erred in not awarding it (evidently because the Complainant had found new employment). The ARB, however, deemed the issue of reinstatement waived because neither party raised the issue on appeal.

9 A 1 Validity of 29 C.F.R. § 1978.109(b)

Twenty nine C.F.R. § 1978.109(b), which provides that an ALJ's order of reinstatement must be obeyed immediately is not unreasonable or contrary to the spirit of the STAA and is a valid regulation. Martin v. Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331; 1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992).

IX A 2 Intent underlying Secretary's power to reinstate

The power to issue reinstatement orders vested in the Secretary by Section 405 was specifically intended to give fruition to Congress' intent to protect "whistleblowers." "Congress . . . recognized that the employee's protection against having to choose between operating an unsafe vehicle and losing his job would lack practical effectiveness if the employee could not be reinstated pending complete review." Brock v. Roadway Express, Inc., 481 U.S. 252, 258-59 (1987) (plurality opinion).

Martin v. Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331; 1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992).

[STAA Whistleblower Digest IX A 2]
JUDICIAL ESTOPPEL; FAILURE TO DISCLOSE STAA PROCEEDING TO BANKRUPTCY COURT

In King v. U-Haul Co. of Nevada , 2004-STA-55 (ALJ Nov. 22, 2005), the Respondent moved to dismiss based on judicial estoppel based on the Complainant's failure to disclose the DOL whistleblower proceeding in a bankruptcy proceeding. The Respondent also argued that the Complainant lacked standing to prosecute the DOL complaint after he filed for bankruptcy protection.

The ALJ questioned whether an Article I adjudicator has the authority to grant the type of equitable relief sought, but found that even if he had such authority, he would not grant it under the circumstances of the present case. The ALJ noted that judicial estoppel is discretionary by nature, and that the interests to be protected were not the Respondent's but the adjudicatory process itself. The ALJ found that when the Complainant filed his bankruptcy petition, OSHA had not yet replied to his whistleblower complaint (which was merely a method for initiating an OSHA investigation and not a trial-type adjudicatory proceeding). In regard to a coincident NLRB complaint, the ALJ found that such proceeding belonged to the NLRB General Counsel rather than the Complainant.

The ALJ found that the Complainant's potential right to reinstatement under the STAA complaint provided standing to the Complainant irrespective of the bankruptcy Trustee's interests in any back pay or compensatory damage claims. The ALJ stayed the STAA proceeding for the Complainant to present the STAA claim to the bankruptcy Trustee, who could decide whether to pursue the back pay and compensatory damage claims or to follow the procedures to abandon them.

IX A 3 Preliminary order of reinstatement takes immediate effect

Under STAA section 405(c), the Secretary must order reinstatement upon finding reasonable cause to believe that a violation occurred. A finding of violation by an ALJ necessarily subsumes a finding of reasonable cause to believe that a violation has occurred. Such preliminary order may issue at any time after the Secretary has investigated a discrimination complaint and before she issues a final order.

Spinner v. Yellow Freight System, Inc., 90-STA-17 (Sec'y May 6,1992).

[STAA Digest IX A 4 a]
FAILURE TO REINSTATE; DIRECT COMPLAINT TO OSHA RATHER THAN ALJ OR ARB

A complainant should direct any concerns about a respondent's compliance with a reinstatement order to the OSHA office that investigated the complaint. See Kennedy v. Advanced Student Transportation , ARB No. 09-145, ALJ No. 2009-STA-49, USDOL/OALJ Reporter at n.69 (ARB Apr. 28, 2011), the ALJ

IX A 4 a Enforcement of ALJ's reinstatement order; case or controversy exception; enforceability of ALJ's order

In Martin v. Yellow Freight System, Inc., No. 92- 6168 (2d Cir. Jan. 25, 1993), the Secretary of Labor brought an action to enforce a reinstatement order issued by the ALJ.

The Second Circuit held that although the Secretary's later order of reinstatement took precedence over all previous order and rulings, this was precisely the type of case that satisfies the "capable of repetition, yet evading review" exception to the actual case-and-controversy requirement, Yellow Freight being one of nation's largest trucking companies and reasonably likely to be again the subject of a reinstatement enforcement suit.

Yellow Freight contended that the STAA does not provide for the enforcement of decisions and orders of the ALJ. See 49 U.S.C. app. § 2305(e). The Second Circuit, however, noted that the regulations provide for immediate reinstatement upon issuance of the ALJ's reinstatement order. 29 C.F.R. § 1978.109(b). It agreed with the district court that it was not unreasonable to enforce an ALJ's order following a hearing, given that the Secretary could issue a reinstatement order after merely a preliminary investigation; and that enforcement of the ALJ's reinstatement order is consistent with congressional intent, and failure to enforce such an order undermines the goal of the legislation.

[STAA Digest IX A 4 a]
REINSTATEMENT; RESPONDENT WHO REFUSES TO COMPLY PRIOR TO ENFORCEMENT BY COURT OF APPEALS

In Clifton v. United Parcel Service , 94-STA-16 (ARB May 14, 1997), the ALJ had recommended in a January 15, 1997 decision on remand that Complainant be awarded six months of front pay because Respondent had ignored the Secretary of Labor's May 5, 1995 order of reinstatement. The Board, however, found that the record did not reflect a level of hostility between Complainant and Respondent sufficient to require substitution of the reinstatement order with an award of front pay, "at this time". The ARB noted that "there is no reason to assume that [Respondent] would not comply with a final order once it is issued by the Secretary of Labor, if enforced by the Court of Appeals." The Board reminded Respondent "that although it has appealed the Secretary's May 5, 1995 order to the United States Court of Appeals for the Sixth Circuit, such an appeal does not automatically stay the Secretary's order of reinstatement." Slip op. at 2 n.1.

See also Dutkiewicz v. Clean Harbors Environmental Services, Inc. , 95-STA-34 (ARB May 15, 1997)(order), in which the ARB ordered Complainant to respond to Respondent's motion to stay reinstatement. Respondent argued that if the Board determines that Complainant should be reinstated, he would be made whole by an award of back pay that lasts until he is reinstated. Respondent pointed out that Complainant is now living and working in another state, and argued that if Complainant should ultimately not prevail before the Board, he made may be faced with another termination after surrendering other employment and relocating. Thus, the Board noted that a stay of reinstatement may well be in Complainant's best interest. (Motion still pending)

IX A 4 a. & b. Enforcement proceedings; may be brought in district court immediately; complainant may intervene

The complainant whistleblower may intervene in an enforcement proceeding brought by the Solicitor of Labor under the STAA, 49 U.S.C. app. 2305(e). The right to intervene is not affected by the fact that the administrative order was interim. Unlike the National Labor Relations Act, the STAA may issue an order for reinstatement without seeking an injunction from the district court. Thus, in STAA cases the Secretary seeks to enforce its own order of equitable relief rather than seeking an injunction from the court. In STAA section 2305(e) cases, the Secretary seeks to vindicate private interests (the devastating financial consequences resulting from a retaliatory discharge) rather than public interests such as under NLRA § 10(1). Martin v. Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331; 1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992).

IX A 4 c Standard of review by District Court

The task of the district court in considering whether to enforce a reinstatement order under the STAA is not to review the evidence but to ascertain whether the procedures followed by the Secretary in issuing the ALJ order satisfied due process. Martin v. Yellow Freight System, Inc., 91 Civ. 8370, 1992 U.S. Dist. LEXIS 7331; 1992 OSHD (CCH) P29,708 (S.D. NY May 18, 1992).

IX A 5 Unconditional offer of reinstatement precludes subsequent order of reinstatement

An unconditional offer of reinstatement ordinarily tolls an employer's back pay liability. Ford Motor Co. v. EEOC, 458 U.S. 219, 102 S. Ct. 3057, 73 L.Ed.2d 721 (1983); Figgs v. Quick Fill Corp., 766 F.2d 901 (5th Cir. 1985) (Title VII cases). It also precludes a subsequent order of reinstatement. Giandonato v. Sybron Corp., 804 F.2d 120 (10th Cir. 1986).

An employer's refusal to resolve the issue of entitlement to back pay and other damages as part of its offer of reinstatement does not render the offer conditional. Thus, where the Secretary found a violation of the STAA and ordered reinstatement of the complainant and back pay less interim earnings from the date of discharge to the date on which the company offered reinstatement with no loss of seniority and at his former pay and benefits level, the reinstatement portion of the order was in error. The record did not indicate, as the Secretary argued on appeal, that the reinstatement offer was conditioned on surrender of complainant's right to seek relief under the STAA. Lewis Grocer Co. v. Holloway, 874 F.2d 1008 (5th Cir. 1989).

[STAA Digest IX A 5]
OFFER OF REINSTATEMENT; DECLINATION DUE TO ADVICE OF PHYSICIAN

On the advice of his physician, Complainant declined Respondent's offer of reinstatement. The Board noted that the Supreme Court has held that "absent special circumstances, the rejection of an employer's unconditional job offer ends the accrual of potential back pay liability." Ford Motor Co. v. EEOC , 458 U.S. 219, 241 (1982). Respondent's contention was that Complainant's rejection of its reinstatement offer tolled the accrual of back pay liability and eliminated the availability of front pay as a replacement for reinstatement. Complainant, however, contended that his diagnosed major depression was a special circumstance that permitted him to decline reinstatement without terminating Respondent's back pay liability and without forgoing front pay.

The Board held that a plaintiff's refusal to accept an offer of reinstatement is measured by an objective, reasonable person standard. Morris v. American Nat'l Can Corp ., 952 F.2d 200, 203 (8th Cir. 1991); Fiedler v. Indianhead Truck Line, Inc ., 670 F.2d 806, 808 (8th Cir. 1982), and directed the ALJ on remand to make a finding on whether the discharge in violation of the STAA was the proximate cause of Complainant's depression and related injuries.

Michaud & Ass't Sec'y v. BSP Transport , 95-STA-29 (ARB Jan. 6, 1997).

REINSTATEMENT; DATE OFFER ENDS RESPONDENT'S LIABILITY FOR BACK PAY
[STAA Digest IX A 5]

In Ass't Sec'y & Mulanax & Andersen v. Red Label Express , 95-STA-14 and 15 (Sec'y Nov. 1, 1995), the Respondent sent a reinstatement offer letter to the Complainant in care of the Assistant Secretary, and the question was presented whether the offer was effective when mailed (plus 3 days for mailing) or when the Complainant actually received the offer. The Secretary noted that it had been made clear during the proceedings before the ALJ that the Complainant was appearing pro se, and that the Respondent was provided the Complainant s correct mailing address. Since the Respondent had failed to utilize the most expeditious means of communicating the offer to the Complainant, and in view of the Respondent's recalcitrance in responding to the Regional Administrator's order to reinstate the Complainant immediately, the reinstatement offer did not serve to toll the back pay liability as of the date of the letter.

The Secretary observed that the ALJ had rejected the Assistant Secretary's argument that the actual date of rejection of the reinstatement offer tolls the Respondent's back pay liability, and that the Assistant Secretary had not renewed this argument or challenged the ALJ's conclusion on review.

The Secretary noted, however, that [t]he determination concerning the date on which back pay is to be tolled will turn on the particular circumstances surrounding the offer of reinstatement in each case. (citation omitted).

[STAA Whistleblower Digest IX A 6]
ALJ NEED NOT ORDER REINSTATEMENT WHERE COMPLAINANT TESTIFIED THAT SHE DID NOT WANT TO RETURN TO WORK FOR THE RESPONDENT

In Young v. Park City Transportation , ARB No. 11-048, ALJ No. 2010-STA-65 (ARB Aug. 29, 2012), the ALJ found in favor of the Complainant, a seasonal driver for a regional carrier. The Complainant, however, took an appeal challenging the ALJ's award of remedies. One ground on which the Complainant challenged the ALJ's order was the contention that she should have been awarded reinstatement. The ARB, however, found that the Complainant had voluntarily waived the right to reinstatement, having testified that she did not want to return to work for the Respondent.

[STAA Digest IX A 6]
REINSTATEMENT; COMPLAINANT'S PREFERENCE FOR PAYMENT OF FUTURE EDUCATION EXPENSES

In Williams v. Domino's Pizza , ARB No. 09-092, ALJ No. 2008-STA-52 (ARB Jan. 31, 2011), the ALJ ordered reinstatement of the Complainant to his former position. On appeal the Complainant argued that he did not think it will be safe to return to work for the Respondent, and requested instead payment for future education expenses. The ARB noted that reinstatement is an automatic remedy under the STAA, and found that there was insufficient evidence in the record that reinstatement would be impossible, impracticable, or cause irreparable animosity. The ARB thus affirmed the ALJ's order to reinstate the Complainant rather than to award front pay or expenses for education.

ATTORNEY FEE PETITION; DEDUCTIONS FOR OFFICE CONFERENCES, DUPLICATION OF EFFORT, EXCESSIVE HOURS IN REVIEWING AND DRAFTING APPELLATE BRIEFS

In Clemmons v. Ameristar Airways, Inc. , ARB No. 08-067, ALJ No. 2004-AIR-11 (ARB Jan. 5, 2011), the Respondent challenged the Complainant's attorney fee request for appellate work before the ARB on the ground that many of the time and task entries were too vague and that no more than two attorneys were reasonably required to respond to its appeals to the ARB. The Complainant's lead attorney explained that he engaged three associates on specific research and writing projects "to conserve costs" because their hourly rates were lower than his.

The ARB observed that in Hensley v. Eckerhart , 461 U.S. 424, 434 (1983), the Supreme Court "emphasized that fee awards may be reduced for inadequately documented hours or for hours that were not �reasonably expended' due to overstaffing or inexperience. Also excluded is time attributed to office conferences, supervision, and training, and review and revision, since such time is not normally billable to private clients." USDOL/OALJ Reporter at 5 (footnotes omitted). The ARB reviewed the Complainant's fee petition, and found that it showed three office conferences among three attorneys during the Respondent's first appeal to the ARB, some duplication of effort in researching and drafting the brief, and an excessive number of hours for revising and editing the response brief. The ARB revised the fees accordingly. The ARB also found in regard to a second appeal some duplication of effort and many hours spent reviewing and revising a brief by two of Complainant's attorneys. Further, the ARB stated that "spending more than 60 hours to draft a response brief in a second appeal with issues similar to those in the first appeal is excessive." Id . The ARB therefore made additional deductions from the requested fee award.

[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.

IX A 6 Effect of complainant's decision not to seek reinstatement

While the STAA expressly provides that a prevailing complainant is entitled to reinstatement, 49 U.S.C. § 2305(c)(2)(B), the statute does not prohibit voluntary waiver of that right. A complainant's decision not to seek reinstatement must be recognized and respected. See, e.g., Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992), slip op. at 22 n14, appeal docketed, No. 92-70102 (9th Cir. Feb. 18, 1992); Nidy v. Benton Enterprises, 90-STA-11 (Sec'y Nov. 19, 1991), slip op. at 17 n.15. While there may be cases in which reinstatement should be ordered despite a complainant's remarks to the contrary, a deliberate decision not to be reinstated must be respected.

Ordinarily, back pay runs from the date of discriminatory discharge until the date that the complainant receives a bona fide offer of reinstatement or gains comparable employment. Nelson v. Walker Freight Lines, Inc., 87-STA-24 (Sec'y Jan. 15, 1988), slip op. at 6 n.3; Earwood v. D.T.X. Corp., 88-STA-21 (Sec'y Mar. 8, 1991), slip op. at 10. Where, however, the complainant declines reinstatement, and has a post-discharge job which is substantially lower-paying and considerably dissimilar, that job does not constitute comparable employment. See Rasimas v. Mich. Dept. of Mental Health, 714 F.2d 614, 624 (6th Cir. 1983).

Gagnier v. Steinmann Transportation, Inc., 91-STA- 46 (Sec'y July 29, 1992) (In Gagnier , the Secretary ordered back pay to continue until the Respondent complied with the Secretary's order).

[STAA Digest IX A 6]
REINSTATEMENT; REMEDY OF REINSTATEMENT IS MANDATORY UNLESS THE PARTIES DEMONSTRATE THAT CIRCUMSTANCES EXIST MAKING THAT REMEDY INAPPROPRIATE; FACT THAT COMPLAINANT DOES NOT SEEK REINSTATEMENT IS NOT DETERMINATIVE

In Dale v. Step 1 Stairworks, Inc. , ARB No. 04-003, 2002-STA-30 (ARB Mar. 31, 2005), the ARB found that the ALJ erred as a matter of law in failing to order reinstatement, apparently having accepted at face value the Complainant's attorney's statement at hearing that the Complainant was not seeking reinstatement. The Board described the various policies supporting the remedy of reinstatement which make it clear that the preferences of the parties are not determinative and that reinstatement is mandatory except in circumstances such as where the parties have demonstrated the impossibility of a productive and amicable working relationship, or where the company no longer has positions for which the complainant is qualified. The Board indicated that another reason that reinstatement is presumptive is to prevent a back pay windfall for a complainant whose entitlement to back pay would otherwise be cut off following a bona fide offer of reinstatement.

On remand, the ALJ issued a order mandating reinstatement and reopening the record to afford the parties an opportunity to address the issues raised by the remand. Dale v. Step 1 Stairworks, Inc. , 2002-STA-30 (ALJ Aug. 11, 2005). After some confusion on the part of the Employer, it made an offer of reinstatement, which the Complainant declined. In a footnote, the ALJ observed:

Appellate precedent is conflicting with respect to whether a trier of fact may rely upon a complainant's representation that reinstatement is not sought. For example, in Dutile v. Tighe Trucking, Inc. , 93 STA 31 (Sec'y 1994), cited by the Board in this matter, a pro se complainant's statement that he did not seek reinstatement was deemed unacceptable. In contrast, Complainant here is not pro se . Moreover, it has been held that while the STA expressly provides that a prevailing complainant is entitled to reinstatement, 49 U.S.C. § 2305(c)(2)(B), the statute does not prohibit voluntary waiver of that right. Thus, the Secretary has held that a complainant's decision not to seek reinstatement must be recognized and respected, See, e.g. , Moravec v. HC & M Transportation, Inc. , 90-STA-44 (Sec'y Jan. 6, 1992), slip op. at 22 n14, appeal docketed, No. 92-70102 (9th Cir. Feb. 18, 1992); Nidy v. Benton Enterprises , 90-STA-11 (Sec'y Nov. 19, 1991), slip op. at 17 n.15, and while there may be cases in which reinstatement should be ordered despite, for example, a pro se complainant's remarks to the contrary, the Secretary has held that a deliberate decision not to seek reinstatement must be respected. Thus, in Nix v. Nehi-RC Bottling Company, Inc. , 84-STA-1 (Sec'y July 13, 1984), the Secretary found that respondent had violated the employee protection provision of the STA; however, the complainant was not interested in returning to work for Respondent and reinstatement was not ordered. Nevertheless, the law of the case here is set forth in the Board's March 31, 2005 decision, and a reinstatement order was entered despite Complainant's waiver of reinstatement at the hearing.

On remand, the Respondent argued, essentially, that it would be inequitable to make it liable for back pay from the date that the Complainant waived reinstatement until the date that it was ordered on remand to reinstate the Complainant notwithstanding the waiver. The ALJ found, however, that the ARB was aware that back pay liability would be substantially increased when it rendered its remand order.

[STAA Whistleblower Digest IX A 6]
REINSTATEMENT IS ORDERED EVEN IF COMPLAINANT DOES NOT SEEK IT WHERE THE RECORD DOES NOT CONTAIN SUBSTANTIAL EVIDENCE THAT REINSTATEMENT WOULD CAUSE IRREPARABLE ANIMOSITY

In Densieski v. La Corte Farm Equipment , ARB No. 03-145, ALJ No. 2003-STA-30 (ARB Oct. 20, 2004), the Complainant testified that he was not looking for reinstatement. Nonetheless, the ARB ordered reinstatement where the record did not contain substantial evidence that the Complainant's reinstatement would cause irreparable animosity between the parties.

[STAA Digest IX A 6]
REINSTATEMENT; WAIVER

In Ass'y Sec'y & Cotes v. Double R Trucking, Inc. , ARB No. 99-061, ALJ No. 1998-STA-34 (ARB July 16, 1999), the ALJ had ruled that reinstatement was a moot issue because Complainant had become a full-time student. On review, the Assistant Secretary argued that this was error because the STAA mandates reinstatement. The ARB affirmed the ALJ not on the basis of mootness but because there was a clear waiver of reinstatement by OSHA in its prehearing brief before the ALJ, and no discussion of the issue in OSHA's post-hearing brief.

[STAA Digest IX A 6]
REINSTATEMENT; ERROR FOR ALJ TO REQUIRE COMPLAINANT TO STATE WHETHER REINSTATEMENT IS SOUGHT; WAIVER IS NOT BINDING IF MADE PRIOR TO ACTUAL OFFER OF REINSTATEMENT

In Cook v. Guardian Lubricants, Inc. , 95-STA-43 (ARB May 30, 1997), the ALJ on remand ordered Complainant to state whether he sought reinstatement. As of the date of the ALJ's order, Respondent had not offered reinstatement to Complainant. The ALJ interpreted Complainant's response as a waiver of reinstatement, and found that the period of liability for back pay ended when Complainant, in the ALJ's view, waived reinstatement.

The Board, while acknowledging that the ALJ was merely attempting to facilitate the calculation of damages, held that the ALJ's order requiring Complainant to state whether he sought reinstatement "improperly placed the onus on [Complainant] to resolve the reinstatement issue in the absence of an offer by [Respondent]." Slip op. at 3. See Dutile v. Tighe Trucking, Inc. , 93-STA-31 (Sec'y Oct. 31, 1994) (addressing circumstances when complainant's statement that he would not seek reinstatement, in the absence of an unconditional offer of reinstatement, would be binding).

The Board also found that the statements made by Complainant did not establish whether he did, or would, decline an unconditional offer of reinstatement, and that even if it was a waiver of reinstatement, it was not valid. See Heinrich Motors, Inc. v. N.L.R.B. , 403 F.2d 145 (1968); N.L.R.B. v. Seligman and Associates, Inc. , 808 F.2d 1155 (1986), cert. denied , 484 U.S. 1026.

Compare Ash v. DSI Transport , 96-STA-21 (ARB June 30, 1997), in which the Board adopted the ALJ's conclusion that Complainant waived reinstatement based on Complainant's stated preference and evidence showing that Complainant is making approximately the same amount of money working for a competitor as he was when wrongfully terminated from employment by Respondent. The Board, however, cautioned litigants to thoroughly review its decision in Cook .

IX A 6 Complainant did not request reinstatement

In Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1 (Sec'y July 13, 1984), the Secretary found that Respondent had violated the employee protection provision of the STAA. Since Complainant was not interested in returning to work for Respondent, reinstatement was not ordered. The Secretary remanded the case to the ALJ for calculation of back pay due, less interim earnings and all legal deductions. The Secretary pointed out that no proof was offered on consequential damages and no request was made for costs and attorneys fees. Since the remand order was limited to calculation of back wages, it appears that the Secretary was not allowing consequential damages or costs and attorneys fees.

IX A 6 Reinstatement preferred over front pay as a remedy

In Nolan v. AC Express, STA-37 (Sec'y Jan. 17, 1995), the ALJ found that reinstatement was unwarranted because of hostility between the Respondent and the Complainant, and instead awarded front pay until the Complainant reached the age of 70. The Secretary remanded the case for the taking of further evidence on whether reinstatement would cause a dysfunctional work environment because in reviewing the transcript, he did not find evidence of the hostility the ALJ asserted she observed at the hearing. The Secretary wrote that:

Reestablishment of the employment relationship is a usual component of the remedy in discrimination cases. McCuistion v. Tennessee Valley Authority , Case No. 89-ERA-6, Sec. Dec. and Ord., Nov. 13, 1991, slip op. at 23. Front pay is a judicially created equitable remedy used as a substitute for reinstatement where there exists "irreparable animosity between the parties," Blum v. Witco Chem. Corp. , 829 F.2d 367, 374 (3d Cir. 1987), and "a productive and amicable working relationship would be impossible." EEOC v. Prudential Federal Sav. and Loan Ass'n , 763 F.2d 1166, 1172 (10th Cir.), cert. denied , 474 U.S. 946 (1985). See United States v. Burke , 119 L.Ed. 2d 34, 45 n.9 (1992) (acknowledging that some courts have ordered front pay for Title VII plaintiffs who were wrongfully discharged and for whom reinstatement was not feasible). Reinstatement is "the preferred remedy to cover the loss of future earnings." Feldman v. Philadelphia Housing Authority , No. 93-1977, et al. (3d Cir. Dec. 22, 1994), 1994 U.S. App. LEXIS 36082.

[ Editor's note: In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Oct. 31, 1994), the Secretary held that "when a complainant states ... that he does not desire reinstatement, the parties or the ALJ should inquire as to why. If there is such hostility between the parties that reinstatement would not be wise because of irreparable damage to the employment relationship, the ALJ may decide not to order it. If, however, the complainant gives no strong reason for not returning to his former position, reinstatement should be ordered.]

[STAA Digest IX A 7]
REINSTATEMENT UNDER STAA; AFTER ACQUIRED EVIDENCE; FALSIFICATION ON EMPLOYMENT APPLICATION

In Roadway Express, Inc. v. U.S. Dep't of Labor , No. 09-1315 (7th Cir. July 22, 2010)(case below 2003-STA-55), the Court of Appeals found that the Administrative Review Board properly concluded that Roadway Express Inc. violated STAA when it failed to produce evidence that it would have fired a truck driver even if he had not testified in a co-worker's grievance hearing. The Court of Appeals had previously remanded this case to allow Roadway to present previously excluded evidence about why it fired the truck driver. On remand, the ARB ordered the truck driver's reinstatement, despite Roadway's attempt to present evidence that the truck driver was fired because he falsified information on his employment application. The Court of Appeals affirmed the ARB's decision and order holding that: (1) the remand order did not open the door for evidence that the driver was fired for falsifying information in his employment application; (2) the evidence was insufficient to establish that driver was terminated because of his driving record; and (3) the reinstatement was an appropriate remedy under the STAA.

[STAA Digest IX A 7]
DISCOVERY SANCTION; AFTER-ACQUIRED EVIDENCE; REFUSAL OF RESPONDENT TO DISCLOSE INFORMANT MAY SUBJECT RESPONDENT TO EVIDENTIARY SANCTION ON MERITS � BUT NOT ON THE QUESTION OF THE REMEDY

In Cefalu v. Roadway Express, Inc. , ARB No. 08-001, ALJ No. 2003-STA-55 (ARB Jan. 30, 2008), the ARB remanded the matter to the presiding ALJ for consideration of whether reinstatement was an appropriate remedy in light of the 7th Circuit's decision in Roadway Express, Inc. v. United States Dep't of Labor , 495 F.3d 477 (7th Cir. 2007). In Roadway , the court had held that the ALJ properly imposed a discovery sanction for the Respondent's refusal to disclose who reported that the Complainant had lied on his employment application about his record of accidents; but that the sanction went to evidentiary matters, and should not have been applied the question of remedy.

[STAA Digest IX A 7]
REINSTATEMENT; DISCOVERY SANCTION BARRING EVIDENCE ON DRIVING RECORD FOUND APPROPRIATE IN REGARD TO THE MERITS, BUT NOT ON THE ISSUE OF WHETHER THE COMPLAINANT COULD BE REINSTATED

In Roadway Express v. U.S. Dept. of Labor, Administrative Review Board , No. 06-1873 (7th Cir. July 25, 2007), the Complainant alleged that he had been fired in retaliation for his support of a co-worker in a grievance hearing in which the co-worker had been accused of falsifying his driving log. The Complainant filed a statement in the proceeding asserting that the Respondent had asked him to falsify his driving log. The Respondent fired the Complainant the same day on the stated ground that he had falsified his employment application regarding his driving record. When the complaint reached the ALJ level, the Complainant sought in discovery the identity of all persons who had provided information about his driving record. The Respondent refused, claiming that revealing its source would put the informant at risk of retaliation and hurt its business operations. The ALJ rejected this argument and granted a motion to compel, noting that the Respondent had not invoked any recognized privilege. The Complainant requested entry of default judgment, but the ALJ chose the lesser sanction of precluding the Respondent from presenting any evidence that arose from the confidential source. The Respondent had no other evidence to support its claim that the discharge was not retaliatory, and therefore the sanction as a practical matter was fatal to its defense. The ARB affirmed the ALJ.

On appeal to the Seventh Circuit the Respondent argued that the discovery sanction deprived it of fundamental due process and was disproportionate to the discovery violation. The Seventh Circuit found that the ALJ had the authority to impose reasonable rules to structure the proceeding before him, and that under the facts no due process violation had occurred. In regard to the proportionality of the sanction, the court recognized that it had an enormous impact on the Respondent's case, but that the Respondent's noncompliance made it impossible for the Complainant to present his case, and for the ALJ to resolve the claim on the merits. Thus, the ALJ's leveling of the playing field as best he could through a sanction was not an abuse of discretion.

The court, however, then considered whether the sanction should have extended to prevent presentation of evidence relevant to the issue of reinstatement. The court noted that the STAA frames reinstatement as an absolute requirement, but recognized that there were practical limits to reinstatement as a remedy. The court wrote: "If, for example, Cefalu were now blind, we would not require Roadway to reinstate him as a truck driver. If Roadway no longer existed, we would not force it to reincorporate for the purposes of reinstating Cefalu. In short, if the premise behind the statutory remedy, that the status quo ante can be restored, fails, then the Board is entitled to adopt a remedy that is the functional equivalent of the one prescribed by the statute. " Slip op. at 12. The court found that although the ALJ's sanction was appropriate for the merits stage of the hearing, the Respondent should have been permitted to present evidence on whether it was impossible to reinstate the Complainant because of his driving record.

IX A 7 When Complainant is no longer qualified for work with Respondent

In Pope v. Transportation Services, Inc., 88-STA-8 (ALJ May 19, 1988) it was found that the Complainant was discharged after refusing to drive a truck that had been cited for several problems. Having determined that the Complainant was unlawfully discharged, the ALJ determined that the Complainant was entitled to some back pay. However, the Complainant had lost his driver's license since the time of his discharge. Therefore, the ALJ determined that the Complainant was not entitled to reinstatement and was entitled to back pay only up to the time he lost his drivers license.

The ALJ's findings were adopted by the Secretary. (Sec'y Sept. 13, 1988).

[STAA Digest IX A 8]
REINSTATEMENT TO FORMER POSITION; RECORD INDICATED THAT THE NEW POSITION WAS NEITHER DIFFERENT NOR A PROMOTION

In Seehusen v. Mayo Clinic. , ARB No. 12-047, ALJ No. 2011-STA-18 (ARB Sept. 11, 2013), the Respondent argued on appeal that it was not proper to order it to return the Complainant to a truck driver position because the regulation only permits reinstatement of an employee to his former position � not promotion to a position he never held. The ARB argued that the ALJ's reinstatement order would stand because the Respondent had not raised this argument before the ALJ. The ARB went on to state, however, that even if it was inclined to address the argument, it would affirm the ALJ's order of reinstatement under the facts of the case, where the record indicated that the Complainant had driven a truck for the Respondent for eight years and that the Respondent had conceded that a mail truck driving position for which the Complainant had been prohibited from applying for was neither different nor a promotion.

IX A 8 Where terminal is closed, ALJ must consider whether reinstatement to another terminal should be ordered

In Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995), the Respondent presented evidence that it had closed its Buffalo sub-terminal after the close of the hearing before the ALJ, and the Secretary reopened the record to receive this evidence. The Complainant had been employed out of the Buffalo sub-terminal. On remand, the ALJ was instructed to take evidence on the transfers rights, if any, of the Buffalo employees and the actual fate of those employees after that sub-terminal closed.

The Secretary held that if Buffalo employees had a right to transfer to other terminals, it would be appropriate to order ACX to offer Nolan reinstatement to a substantially similar position at another ACX location. See, e.g., Coleman v. Dept of Veterans Affairs, No. 94-3018 (Fed. Cir. Feb. 15, 1994), 1994 U.S. App. LEXIS 2705 (court may order reinstatement to another work area or location of the employing agency). In such a case, back pay would continue to accrue until reinstatement or declination of reinstatement. If, however, the Buffalo employees had no transfer rights and all of them were laid off when the operation closed, it would be appropriate to cut off back pay as of the date of closing.

[STAA Digest IX A 9]
FRONT PAY UNTIL OWNER-OPERATOR, WHO WAS FORCED TO SELL HIS TRUCK, CAN OBTAIN ANOTHER TRUCK AND BE REINSTATED

In Fleeman v. Nebraska Pork Partners , ARB Nos. 09-059, -096, ALJ No. 2008-STA-15 (ARB May 28, 2010), the Complainant, an owner-operator contract driver, testified that he wanted reinstatement but, had been forced to sell his truck after the Respondent terminated his contract, and could not perform his duties unless and until he secured a new truck. The ALJ awarded front pay until such time as the Complainant could obtain another truck and thus accept reinstatement.

On appeal, the Complainant requested a remand for the ALJ to calculate the amount of the front pay (the ARB presuming on the basis of inability to afford to purchase a truck). The ARB declined "at this time" to order a remand for that purpose because too little time had passed to conclude that the relief ordered by the ALJ was an impossibility. The ARB stated that it anticipated that the Respondent, in the exercise of its own self-interest, will "make a good-faith effort to assist [the Complainant] in obtaining a truck and thereby re-establishing his qualifications for contracting with [the Respondent] as an owner-operator."

[STAA Digest IX A 9]
REINSTATEMENT; SUBSTITUTION OF FRONT PAY WHERE ANIMOSITY MAKES REINSTATEMENT IMPOSSIBLE; FRONT PAY LIABILITY MAY END UPON COMPLAINANT'S REACHING RETIREMENT AGE

In Palmer v. Triple R Trucking , ARB No. 06-072, ALJ No. 2003-STA-28 (ARB Aug. 30, 2006), PDF | HTM the Complainant provided uncontested testimony that animosity between himself and the Respondent would make reinstatement impossible or impracticable. The calculation of back pay and front pay in the matter was complicated by the spare record and the Respondent's failure to participate in the hearing. Although not endorsing the ALJ's methodology for calulating back pay, the ARB ultimately accepted it because it was uncontested and not clearly erroneous. The ARB made several adjustments to the ALJ's front pay award. In regard to the duration of front pay, the ALJ determined that continued payments would be contingent on three events -- the Complainant's repurchase of a truck, the Respondent's payment of the award, or the Complainant's reaching the retirement age of 65. The ARB declined to decide whether the ALJ's three contingencies were a proper basis for determining the duration of the front pay award, but did agree that reaching the age of retirement is an appropriate end point.

[STAA Digest IX A 9]
FRONT PAY; COMPLAINANT'S DEPRESSION LINKED TO RESPONDENT'S WRONGFUL CONDUCT

In Michaud v. BSP Transport, Inc. , 95-STA-29 (ALJ June 12, 1997), the ALJ recommended a front pay award because Complainant suffered a major depression occasioned by Respondent's wrongful conduct, Complainant's treating physician had advised against a return to work with Respondent for health reasons, and because there were indicia that Complainant would be returning to a work environment where the employer might be trying to get rid of Complainant. The ALJ was influenced by the physician's testimony about the vicious cycle in which Complainant was caught and the sort of modified job that would be necessary to ease Complainant into a stable mental state, and by evidence that Complainant was not responding well to anti-depressant medication and therapy.

[STAA Digest IX A 9]
FRONT PAY IN LIEU OF REINSTATEMENT

In Ass't Sec'y & Bryant v Mendenhall Acquistion Corp. , ARB No. 04-014, ALJ No. 2003-STA-36 (ARB June 30, 2005), the ARB found that front pay in lieu of reinstatement was appropriate where the Complainant had worked for the Respondent as an owner-operator, but no longer owned a truck at the time of the Respondent's offer of reinstatement. The Complainant had also turned down the offer of reinstatement because he believed he could make more money with his current employer. The ARB found that the Complainant's entitlement to front pay began when the Complainant turned in his truck because he could not make the payments on it.

The ARB remanded the case for the ALJ to make relevant findings and to repen the record to take evidence about the Complainant's employment subsequent to the hearing. The Board wrote:

We note that a litigant who seeks an award of front pay must provide the district court "with the essential data necessary to calculate a reasonably certain front pay award." McKnight v. General Motors Corp. , 973 F.2d 1366, 1372 (7th Cir. 1992). Such information includes the amount of the proposed award, the length of time the complainant expects to work, and the applicable discount rate. Id. Moreover, front pay awards, while often speculative, cannot be unduly so. The longer a proposed front pay period, the more speculative the damages become. Hybert v. Hearst Corp., 900 F.2d 1050, 1056 (7th Cir. 1990). Therefore, on remand, we expect the parties to submit relevant evidence demonstrating both the amount and the duration of a front pay award. If on remand, the ALJ considers the issue of future earnings, we refer him to Doyle , slip op. at 7-8, for guidance on computing the present value of future earnings.

Slip op. at 9.

[STAA Digest IX A 9]
REFUSAL OF UNCONDITIONAL OFFER OF REINSTATEMENT; IF REFUSAL IS REASONABLE, RESPONDENT MAY BE SUBJECT TO FRONT PAY LIABILITY

Although a complainant's rejection of an unconditional reinstatement offer ends the respondent's responsibility for back pay, a reasonable refusal of an offer of reinstatement may subject the respondent to front pay liability. See, e.g., Lewis v. Federal Prison Indus., 953 F.2d 1277 (11th Cir. 1992) (former employee could not return to his work environment without suffering a return of debilitating symptoms; therefore front pay damages awarded).

Thus, in Michaud v. BSP Transport, Inc. , 95-STA-29 (ARB Oct. 9, 1997), where there was unrefuted evidence that Complainant was suffering from major depression at the time Respondent offered reinstatement, and was under physician's advice that reinstatement would not be conducive to recovery from the depression, the ARB held that Complainant's rejection of the reinstatement offer was reasonable, and subjected Respondent to front pay liability.

The ARB rejected Respondent's contention that front pay is not an available remedy under the STAA. The ARB, however, made a point of observing that, in most cases, an employer is at an advantage in regard to back pay liability by making an offer of reinstatement as early as possible because it would be only in limited circumstances, such as in Michaud, that liability for wages would continue after a bona fide offer of reinstatement.

[STAA Digest IX A 9]
FRONT PAY AWARD; CALCULATION OF LENGTH AND AMOUNT

In Michaud v. BSP Transport, Inc. , 95-STA-29 (ARB Oct. 9, 1997), the ARB held that Complainant had reasonably rejected a bona fide offer of reinstatement because of his depression, and therefore Respondent was subject to front pay liability. The ARB held that the back pay liability ended on the date of the bona fide offer. Front pay liability began on the date the hearing closed and was to last two years from that date, and was to be measured the same as back pay.

The ARB made the front pay calculation based on the hearing testimony of a medical expert that it would take two years to rehabilitate Complainant to the point where he could work again. The ALJ had concluded that front pay liability would begin on the date when Respondent paid the damages already due Complainant; the ARB, however, found that the appropriate date was the time that the medical opinion was given.

The ARB held that future damages should be discounted to present value. In the instant case, however, since only a few months would elapse between the date of its final order and the end of the front pay period, no reduction to present value was ordered.

[STAA Digest IX A 10]
MOTION FOR STAY OF ALJ�S REINSTATEMENT ORDER; ARB APPLIES FOUR-FACTOR TEST; GENERALIZED AND UNSUBSTANTIATED CLAIMS OF IRREPARABLE HARM ARE INSUFFICIENT; A COMPLAINANT CANNOT WAIVE REINSTATEMENT UNTIL A BONA FIDE, UNCONDITIONAL OFFER OF REINSTATEMENT IS MADE

In Blackie v. D. Pierce Transportation, Inc. , ARB No. 13-065, ALJ No. 2011-STA-55 (ARB July 24, 2013), the ALJ found that the Respondent violated the whistleblower provision of the STAA, and ordered the Respondent to make a bona fide offer of reinstatement to the Complainant. The Respondent filed a motion before the ARB for a stay of reinstatement while the appeal is pending, contending that the Complainant indicated before the ALJ that he did not wish to be reinstated, that the record evidenced irreparable animosity between the Complainant and the Respondent and its employees, and that the record established the Complainant's lack of skill as a truck driver.

The ARB applied a four factor test: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the Board grants the stay; and (4) the public interest in granting a stay.

The ARB found that the Respondent failed to meet these criteria. The motion failed to demonstrate a likelihood of success on the merits. The Respondent only offered generalized and unsubstantiated concerns of irreparable harm. The ARB stated that "any alleged irreparable harm �must be actual and not theoretical� and must be �certain to occur.�" USDOL/OALJ Reporter at 3 (footnote citation omitted). The ARB stated that although the Complainant may have indicated to the ALJ that he did not want to be reinstated, he filed an opposition to the motion for a stay of a reinstatement offer. Moreover, the ARB noted that it had ruled that a complainant cannot waive reinstatement until the employer makes a bona fide, unconditional offer of reinstatement. No such offer having been made, the Respondent's waiver argument was unavailing. The ARB noted that the Complainant had waited to have his job, pay and benefits restored, and therefore would surely continue to suffer harm if the reinstatement order were stayed. Finally, the ARB found that the public interest militates against a stay, citing the regulatory history of the similar SOX regulations in which OSHA stated that "�the purpose of interim relief, to ... avoid a chill on whistle blowing activity, would be frustrated if reinstatement did not become effective until after the administrative adjudication was completed.�" USDOL/OALJ Reporter at 4, quoting 69 Fed Reg. 52109 (Aug. 24, 2004). One member of the Board concurred, but stated that he would have limited discussion to the failure of the Respondent to sufficiently articulate how it will suffer irreparable injury, and reserved further analysis for the decision on the merits.

[STAA Digest IX A 10]
STAY OF REINSTATEMENT ORDER; IRREPARABLE HARM; INSUFFICIENT WORK NOT CREDIBLE SHOWING FOR LARGE COMPANY

In Dutkiewicz v. Clean Harbors Environmental Services, Inc. , 95-STA-34 (ARB June 11, 1997), Respondent argued in support of a motion for stay of the ALJ's recommended order of reinstatement that it will be irreparably harmed absent a stay because the company did not need additional drivers in the state where Complainant was employed. The Board concluded that Respondent was sufficiently large that it was unlikely that Respondent would suffer irreparable harm upon the hiring of one additional employee, and that in any event, mere financial loss does not support a finding of irreparable harm. The Board rejected Respondent's claim that it would have to at least temporarily cause one employee to lose his or her job. The Board also noted that pursuant to the STAA it is required to issue a final decision within 120 days of the ALJ's recommended decision.

The Board also took into consideration that reinstatement would result in $500 a week more in pay to Complainant, and therefore a stay would harm Complainant.

[STAA Digest IX A 10]
STAY OF REINSTATEMENT ORDER; PUBLIC POLICY IN FAVOR OF IMMEDIATE EFFECT OF ALJ'S REINSTATEMENT ORDER

In Dutkiewicz v. Clean Harbors Environmental Services, Inc. , 95-STA-34 (ARB June 11, 1997), Respondent moved for a stay of the ALJ's recommended order of reinstatement. In weighing the various factors considered in determining whether a stay should be granted, the Board found that the public interest militates against a stay, noting that both Congress and the Department of Labor weighed the public interest in promulgating 49 U.S.C. § 31105(b)(2)(B) and 29 C.F.R. § 1978.109(b), and determined that an ALJ's recommended order of reinstatement should have immediate effect.

[STAA Digest IX A 11]
REINSTATEMENT; PUBLIC SAFETY

In Cefalu v. Roadway Express, Inc. , ARB No. 08-110, ALJ No. 2003-STA-55 (ARB Dec. 10, 2008), the Seventh Circuit had remanded the case for the ALJ to reconsider whether, in view of the Complainant's arguably unsafe driving record, reinstatement was an appropriate remedy. The Respondent submitted notices of discharge to four other drivers for recklessness in support of its argument that it routinely fired employees who were involved in preventable accidents caused by reckless driving. The Complainant, however, submitted the declarations of eight employees and union stewards who recounted numerous incidents of drivers involved in far more serious accidents than the Complainant. The ARB found that this evidence supported the ALJ's conclusion that the Respondent, following its grievance procedure, retained the services of many employees involved in serious and preventable accidents. The Respondent also produced evidence of the Complainant's driving record since reinstatement -- three accidents and two warning letters. The record, however, indicated that these did not occur on public roads and only involved property damage (none of which resulted in the vehicle being taken out of service) and not personal injury. The ARB found that the Respondent had not demonstrated that the Complainant's reinstatement posed a substantial threat to the driving public.

[STAA Digest IX A 11]
REINSTATEMENT; MOTION TO REOPEN BASED ON CONCERN THAT COMPLAINANT WOULD PHYSICALLY THREATEN EMPLOYEES; FAILURE TO PRESENT NEW AND MATERIAL EVIDENCE

In Copart v. USDOL , No., 05-9577 (10th Cir. June 12, 2006) (unpublished) (case below 1999-STA-46), the Complainant was ordered reinstated by the ALJ � a ruling that was eventually affirmed by the 10th Circuit. Subsequently, the Respondent filed a motion with the ALJ to reopen the record so that it could present evidence to show that the Complainant would present a physical threat to its employees if reinstated. The ALJ denied the motion and the ARB affirmed. On appeal the court looked to FRCP 60(b)(2) and case law interpreting agency rules on reopening the record in interpreting the USDOL-OALJ rule of practice at 29 C.F.R. 18.54(c). The DOL rule refers to new and material evidence that "has become available which was not readily available prior to the closing of the record," whereas the FRCP refers to "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial". In Copart , most of the alleged threats were made before the initial hearing before the ALJ, and the ALJ had previously made findings about their credibility. On appeal the court found that only one of the allegations clearly occurred after the initial hearing, and that three of four petitions for a protective order against the Complainant were based on ex parte allegations, which were of such limited relevance that the court declined to disturb a ruling of the ARB that they were cumulative of the first. The ALJ and the ARB had found that the evidence only showed that the Complainant was frustrated and did not rise to the level of threats of violence. The court agreed, finding that the evidence did not indicate a threat of physical violence, and that it could not find that the ARB erred in finding them not to be material.