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                                    BRB No. 92-1194

MICHAEL BELL                            )
                                        )
          Claimant-Petitioner           )
                                        )
     v.                                 )
                                        )
WASHINGTON METROPOLITAN                 )    DATE ISSUED:   02/24/1994
AREA TRANSIT AUTHORITY               )
                                )
          Self-Insured                  )
          Employer-Respondent           )    DECISION and ORDER

     Appeal of the Decision and Order Granting Summary Judgment of Edward
     Terhune Miller, Administrative Law Judge, United States Department of
     Labor.

     Michael Bell, Landover, Maryland, pro se.

     Gerald Herz and Alan D. Sundburg (Friedlander, Misler, Friedlander,
     Sloan & Herz), Washington, D.C., for self-insured employer.
     
     Before:  HALL, Chief Administrative Appeals Judge, SMITH and McGRANERY,
     Administrative Appeals Judges.

     PER CURIAM:

     Claimant, without the assistance of counsel, appeals the Decision and Order
Granting Summary Judgment (91-DCW-0026) of Administrative Law Judge Edward Terhune
Miller rendered on a claim filed pursuant to the provisions of the Longshore and
Harbor Workers' Compensation Act, as amended, 33 U.S.C. §901 et seq.
(1982), as extended by the District of Columbia Workmen's Compensation Act, 36 D.C.
Code §§501, 502 (1973) (the Act).[1]  
As claimant appeals without legal representation, we will review the administrative
law judge's findings of fact and conclusions of law to determine whether they are
rational, supported by substantial evidence, and in accordance with law.
O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 F.2d 359 (1965);
33 U.S.C. §921(b)(3); 20 C.F.R. §§802.211(e), 802.220.  
     Claimant injured his right shoulder on January 23, 1979, while in the course
of his employment as a track laborer with employer.  Claimant underwent two
surgical procedures, but subsequently reinjured his shoulder when he attempted to
return to his usual employment with employer.  Employer voluntarily paid
compensation for temporary total disability intermittently from January 24, 1979
until December 15, 1983.  33 U.S.C. §908(b).  Employer also paid compensation
for temporary partial disability from December 16, 1983 until January 10, 1985. 
33 U.S.C. §908(e).  In 1984, claimant sought alternate employment with
employer, and employer initiated vocational rehabilitation in order to assist
claimant in securing such employment.  However, after claimant refused to complete
a mechanical skills test for employer in June 1984, employer terminated its
assistance.  In January 1985, claimant and employer entered into a settlement of
claimant's claim pursuant to Section 8(i) of the Act, 33 U.S.C. §908(i), for
$12,900.  In May 1985, claimant once again attempted to return to his usual
employment with employer as a track laborer.  Employer refused to rehire claimant
in this capacity because it believed claimant was physically incapable of
performing his former job duties.  Thereafter, claimant filed a grievance alleging
that employer was improperly prohibiting him from returning to work.  The grievance
resulted in a joint denial by the union and employer.  Claimant additionally filed
a claim pursuant to Section 49 of the Act, 33 U.S.C. §948a, alleging that
employer refused to rehire him, at least in part, because of his filing of a claim
under the Act for his shoulder injury.  After a formal hearing, this claim was
denied by the administrative law judge.  The Board subsequently affirmed the
administrative law judge's decision denying benefits. Bell v. Washington
Metropolitan Area Transit Authority, BRB No. 90-995 (Dec. 28, 1992)
(unpublished).

     While his first claim was pending before the Board, claimant filed a second
claim under the Act alleging ongoing discrimination by employer under Section 49;
specifically, claimant alleged that since the formal hearing regarding his initial
discrimination claim, employer had refused to rehire claimant into any position,
despite the fact that he has made continued attempts to return to work.  Employer
filed a motion with the administrative law judge for summary judgment.  Claimant
responded, seeking denial of the motion and requesting that the matter be set for
a formal hearing.  The administrative law judge granted employer's motion for
summary judgment and dismissed the claim.

     On appeal, claimant, representing himself, challenges the administrative law
judge's dismissal of the claim.  Employer responds, urging affirmance.

     The threshold issue presented by this appeal is whether the administrative law
judge properly dismissed claimant's claim by virtue of a summary judgment decision. 
Under the Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges,[2]   29 C.F.R.
§18.40(a), Motion for Summary Decision, any party 

may move, with or without supporting affidavits, for summary decision at least
twenty days before the hearing.  Any party opposing the motion may serve opposing
affidavits or countermove for a summary decision.  If the pleadings, affidavits,
material obtained through discovery or otherwise, or matters officially noticed
show that there is no genuine issue of material fact, the administrative law judge
may enter summary judgment for either party.  29 C.F.R. §§18.40(d),
18.41(a); see generally Harris v. Todd Pacific Shipyards Corp., ___ BRBS 
___, BRB Nos. 93-2227 (Oct. 25, 1994).

     The purpose of the summary judgment procedure is to promptly dispose of
actions in which there is no genuine issue as to any material fact. Hall v.
Newport News Shipbuilding & Dry Dock Co., 24 BRBS 1 (1990).  Not only must
there be no genuine issue as to the evidentiary facts, but there must also be no
controversy regarding inferences to be drawn from them. Id.  In determining
if summary judgment is appropriate, the court must look at the record in the light
most favorable to the party opposing the motion. Hahan v. Sergeant, 523 F.2d
461, 464 (1st Cir. 1975), cert. denied, 425 U.S. 904 (1976).

     We hold that the administrative law judge committed error by granting summary
judgment in favor of employer since, in the instant case, there were several issues
of material fact concerning claimant's Section 49 claim which should have properly
been considered by the administrative law judge in an evidentiary hearing.  Section
49 prohibits an employer from discharging or discriminating against an employee
based on his involvement in a claim under the Act, and if the employee can show he
is a victim of such discrimination, he is entitled to reinstatement and back wages. 
33 U.S.C. §948a (1988).  To establish a prima facie case of
discrimination, a claimant must demonstrate that his employer committed a
discriminatory act motivated by discriminatory animus or intent. See Geddes v.
Director, OWCP, 851 F.2d 440, 21 BRBS 103 (CRT)(D.C. Cir. 1988); see also
Holliman v. Newport News Shipbuilding & Dry Dock Co., 852 F.2d 759, 21 BRBS 124
(CRT)(4th Cir. 1988).  The administrative law judge may infer animus from
circumstances demonstrated by the record.  See Brooks v. Newport News
Shipbuilding & Dry Dock Co., 26 BRBS 1 (1992), aff'd sub nom. Brooks v.
Director, OWCP, 2 F.3d 64, 27 BRBS 100 (CRT)(4th Cir. 1993); see generally
Hunt v. Newport News Shipbuilding & Dry Dock Co., ___ BRBS ___, BRB Nos. 90-2285/A (Nov. 25, 1994).  The essence of discrimination is in treating the claimant
differently than others similarly situated.  Jaros v. National Steel &
Shipbuilding Co., 21 BRBS 26 (1988).     

     In the instant case, claimant made several allegations in support of his
contention that employer has discriminated against him in his attempts to return
to work with employer, due to employer's animus over his original claim under the
Act and the ultimate settlement of that claim.  Initially, claimant alleges that
employer's policy regarding reinstatement of injured employees discriminates
against employees who exercise their rights under the Act.  That policy allegedly
provides that employees who sustain work-related injuries are to be placed on the
Section 124 list under the collective bargaining agreement, which allows assistance
in returning the employee to the first appropriate and available position within
the union district.  Such employees are assisted by Ed Quick in the Department of
Risk Management in their attempts to obtain another job with employer.  However,
once an employee settles his claim with employer, the Department of Risk Management
is no longer responsible for the administration of the employee, and the employee
is placed on the Personnel Section 124 list.  The employee is then assisted by the
Office of Personnel in attempting to obtain another job with employer.  Claimant
alleges that this policy discriminates against employees who settle their claims
because the Office of Personnel provides less attentive treatment than the
Department of Risk Management.

     Next, claimant alleges that although he first learned on October 30, 1989, at
the hearing held on his first discrimination claim, that he was still considered
an employee of employer, he was not placed on employer's Section 124 employment
list until July 23, 1990, approximately nine months after the hearing.  Claimant
additionally notes that employer did not issue an identification card to him until
September 1990, eight months after he commenced repeated efforts to obtain that
card, as further evidence of unfair treatment.[3] 
 Claimant also alleges that he never received notice of any vacancies, or
affirmative assistance by employer in obtaining employment.

     The administrative law judge rejected these allegations, finding that claimant
"offered no evidence" which suggests that the Office of Personnel provides less
attentive treatment than the Department of Risk Management, or that this policy,
assuming the allegation was true, is motivated by animus against employees who
settle their claims.  The administrative law judge further found that it was
undisputed that claimant was eventually placed on the Section 124 list, and that
he "offered no evidence which suggests that the Employer intentionally kept him off
the list." See Decision and Order at 4.  The administrative law judge also
found that the fact that claimant did not receive his employee identification card
until September 1990 does not, by itself, establish that employer intentionally
delayed in giving him this card.  

     The administrative law judge next found that claimant's allegation that
employer never informed him of any job vacancies was "general," and unsupported by
any specific facts that employer treated him differently than other injured
employees.  Thus, the administrative law judge found that claimant's allegations,
"without more, does not support a rational inference of discrimination." Decision
and Order at 4.  With regard to the issue of animus, the administrative law judge
found that claimant offered no evidence of retaliatory motivation to support the
allegation of animus.  The administrative law judge stated that simply making
unsupported allegations of a general nature, without more, was not sufficient to
contradict employer's "recitation of undisputed facts," or create new and material
facts. Id. at 6.  Based upon these findings, the administrative law judge
granted employer's motion for summary judgment.

     In the present case, claimant's allegations regarding employer's conduct are
issues of material fact which directly relate to the applicability of Section 49. 
The administrative law judge thus erred in granting employer's motion for summary
judgment.  We note, for example, that a hearing could establish whether claimant
received less attentive treatment in his attempts at returning to work after he was
placed under the jurisdiction of the Office of Personnel, and, if so, whether that
treatment was motivated by discriminatory animus.  Moreover, a controversy clearly
exists regarding the inferences to be drawn from employer's motivation in its
undisputed delay in placing claimant on its Section 124 list and its delay in
issuing claimant an identification card.  Additionally, while accepting employer's
"recitation of undisputed facts," the administrative law judge stated that claimant
never offered evidence of his allegations of discrimination; however, since the
administrative law judge failed to hold a hearing in this matter, claimant was
denied the opportunity to present evidence supportive of his allegations of
discrimination.

     Lastly, the administrative law judge found that claimant's allegations could
not rationally support an inference of discrimination or animus.  While an
administrative law judge may infer animus, he can do so only by
circumstances demonstrated by the record. See Brooks, 26 BRBS at 3.  In the
instant case, however, no formal record was established.  By granting employer's
motion for summary judgment, the administrative law judge denied claimant the
opportunity to demonstrate whether employer committed a discriminatory act
motivated by discriminatory animus or intent, and thereby establish a prima
facie case of discrimination. See Jaros, 21 BRBS at 30.  Accordingly,
we hold that the administrative law judge erred in granting employer's motion for
summary judgment, and we remand the case for the administrative law judge to hold
a formal hearing and accept evidence from the parties.[4] 
     Accordingly, the administrative law judge's Decision and Order Granting
Summary Judgment is vacated, and the case is remanded for consideration of the
merits of claimant's claim of discrimination under Section 49.

     SO ORDERED.



                                                                        

                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                        

                         ROY P. SMITH
                         Administrative Appeals Judge



                                                                        

                         REGINA C. McGRANERY
                         Administrative Appeals Judge

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Footnotes.


1)Claimant's attorney filed a notice of appeal with the Board on March 5, 1992. Subsequently, by letter dated August 31, 1994, claimant's attorney informed the Board that he was withdrawing as counsel for claimant. On September 7, 1994, claimant filed a letter notifying the Board that he was now pursuing his appeal without counsel. In an Order dated September 23, 1994, the Board acknowledged claimant as a pro se appellant. Back to Text
2)The Rules apply unless inconsistent with a rule of special application as provided by statute or regulation. See 29 C.F.R. §18.1; Adams v. Newport News Shipbuilding & Dry Dock Co., 22 BRBS 78 (1989). Back to Text
3)Employer has not disputed the delays asserted by claimant in placing claimant on its Section 124 list and in issuing claimant an identification card. Thus, the administrative law judge's reliance on the decision of the United States Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), to support his decision to grant employer's motion is misplaced. In Anderson, the Court stated that the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. In the instant case, claimant's undisputed assertions regarding the time elapsed in both placing him on employer's employment list and in issuing him an identification card support his claim pursuant to Section 49 of the Act. Back to Text
4)Under 20 C.F.R. §§702.336 and 702.338, the administrative law judge is empowered to resolve any issue arising at the hearing, must fully inquire into matters that are fundamental to the disposition of the issues in a case, and receive into evidence all relevant and material evidence. See Jourdan v. Equitable Equip. Co., 25 BRBS 317 (1992) (Dolder, J., dissenting). Back to Text

NOTE: This is an UNPUBLISHED LHCA Document.

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