JUDGE ROMERO: … The affidavits that are attached to the motion seem to indicate to me that you were not terminated from your employment, that you were on, that you're still on workman's compensation apparently. Are you still receiving work comp benefits?
MR. DENDY: Yes, sir, I am, but I have been told by three or two - or three employees that I no longer have a job there and my benefits, and all my benefits have been dropped.
JUDGE ROMERO: Well, who are the employees? Who are the employees? Are they managers or supervisors?
MR. DENDY: Um, one of them is my supervisor which was Eric Booth. Um then I spoke with Manuel. A friend of mine called over to my work over and spoke with Manuel Flores and he told them that I was fired and no longer worked there and one of the ladies that works there is a very, very good friend of mine. We've known each other forever. I lived with the lady. I was at her house during the Christmas holidays and on New Year's Eve, I think it was New Year's, before New Year's Day, yeah, she told me that - we were all out there hanging out and talking and she told me I no longer have a job with Har-Con.
JUDGE ROMERO: Well, have you ever talked to any managers at Har-Con?
MR. DENDY: Well, I spoke with Mr. Rio. He told me, never said I had a job with them. He told me just to get in touch with them and Workman's Comp released me. But they have dropped my medical insurance. They dropped my dental insurance and they will not talk to me. I call over there. They will not talk to me on the phone anymore so apparently, um, I don't have a job with them anymore and I've been told so by three different people.
JUDGE ROMERO: Okay. Well, that certainly may be an issue then.
10 Id. at 8:
JUDGE ROMERO: Is he still on the payroll?
MR. WOOD: He is - he has not been discharged. His benefits may have ceased, but that's simply because of the fact that being on workers' compensation leave, that happens to any employee who is on extended absences such as Mr. Dendy.
11 " For reasons discussed in the conference call, and since it appears that Respondent's motion has some validity and to conserve judicial resources, the hearing in this matter scheduled for April 26, 2005 is hereby postponed to a later date, if necessary, to allow Complainant additional time to respond to respondent's Motion for Summary Judgment."
12 "It is hereby ordered that Complainant show cause by June 9, 2005, why Respondent's Motion for Summary Judgment should not be granted…"
13 R. D. & O. at 3-4.
14 Id. at 4.
15 49 U.S.C.A. § 31105(b)(2)(C) and 29 C.F.R. § 1978.109(c)(1).
16 See 29 C.F.R. § 18.41:
(a) No genuine issue of material fact. (1) Where no genuine issue of a material fact is found to have been raised, the administrative law judge may issue a decision to become final as provided by the statute or regulations under which the matter is to be heard. Any final decision issued as a summary decision shall conform to the requirements for all final decisions.
(2) An initial decision and a final decision made under this paragraph shall include a statement of:
(i) Findings of fact and conclusions of law, and the reasons therefor, on all issues presented; and
(ii) Any terms and conditions of the rule or order.
(3) A copy of any initial decision and final decision under this paragraph shall be served on each party.
(b) Hearings on issue of fact. Where a genuine question of material fact is raised, the administrative law judge shall, and in any other case may, set the case for an evidentiary hearing.
17 See 29 C.F.R. § 18.40(d); see, e.g., Agee v. ABF Freight Systems, Inc., ARB No. 04-182, ALJ No. 04-STA-40 (ARB Dec. 29, 2005).
18 29 C.F.R. § 18.40(c).
19 49 U.S.C.A. § 31105(a)(1).
20 49 U.S.C.A. § 31105(a)(1)(A).
21 Dendy represented himself before the ALJ until May 5, 2005. We construe complaints and papers filed by pro se complainants "liberally in deference to their lack of training in the law" and with a degree of adjudicative latitude. Young v. Schlumberger Oil Field Serv., ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 8-10 (ARB Feb. 28, 2003), citing Hughes v. Rowe, 449 U.S. 5 (1980). At the same time, we are charged with a duty to remain impartial; we must "refrain from becoming an advocate for the pro se litigant." Id.
22 Motion at 3-4.
23 Complainant's Brief in Response to Respondent's Motion at 7-11.
24 Motion at 3.
25 Because we do not address the issue of discharge, we will not discuss the admissibility of the witness statements.
26 Id. at 5.
27 Brief in Response to Respondent's Motion at 5-6; Dendy Affidavit at 4.
28 Tr. 8.
29 Motion at 3.
30 See, e.g., American Federation of State, County and Municipal Employees, Local 380 v. Hot Spring County, Ark., 362 F. Supp. 2d 1035, 1039 (W.D. Ark.2004), citing Black's Law Dictionary 277 (7th ed.1999) ("In an employment situation, [‘compensation'] includes wages, stock option plans, profit-sharing, commissions, bonuses, golden parachutes, vacation, sick pay, medical benefits, disability, leaves of absence, and expense reimbursement.").
31 See, e.g., Mowbray v. Am. Gen. Life Cos., 162 F. App'x 369, 374 (5th Cir. 2006) (grant of summary judgment under Family and Medical Leave Act).
32 Tr. 8.
33 In conjunction with Complainant's Brief in Opposition to the Recommended Decision and Order, Dendy submitted a document dated July 6, 2005, from the Principal Financial Group "providing information on prior dental coverage." The document identifies Scott Dendy as a "Member" and Har-Con as the "group plan holder." It also includes the words "Date Coverage Began: 04-01-2004" and "Last Date Covered: 10-31-2004." Although the document was created after the closing of the record before the ALJ, the information it contains may have been available to Dendy as early as October 31, 2004. When deciding whether to consider new evidence, the Board relies upon the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18, which provides that "[o]nce the record is closed, no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record." 29 C.F.R. § 18.54(c); see, e.g., Welch v. Cardinal Bankshares Corp., ARB No. 06-062, ALJ No. 2003-SOX-15 , Order Denying Stay, slip op. 5-6 (ARB June 9, 2006). Although we do not accept the July 6, 2005 document, Har-Con has admitted that Dendy's benefits ceased, thereby rendering this new evidence cumulative for purposes of summary decision.
34 Motion at 3.
35 Complainant's Brief in Response to Respondent's Motion at 2-5; Dendy Affidavit at 1-3.
36 See, e.g., Anderson v. Metro Wastewater Reclamation Dist., ARB No. 98-087, ALJ No. 1997-SDW-7, slip op. at 15 (ARB Mar. 30, 2000).
37 Motion at 4.
38 See, e.g., Anderson, slip op at 15; Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, ALJ No. 99-STA-21, slip op. at 13 (ARB Nov. 30, 1999).