U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-118
ALJ CASE NO. 96-SWD-2
DATE: October 17, 1997
In the Matter of:
KEVIN L. ISHMAEL,
COMPLAINANT,
v.
CALIBUR SYSTEMS, INC.
and
UNITED PETROLEUM
CORPORATION,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
Before us for review is the Recommended Decision and Order (R. D.
and O.) issued on June 23, 1997, and the Supplemental Decision and Order Awarding
[Page 2]
Attorney Fees (S. D. and O.) issued on September 24, 1997, by the Administrative Law Judge
(ALJ) in this case arising under the Solid Waste Disposal Act (SWDA), 42 U.S.C.
§6971 (1988). Complainant Kevin L. Ishmael (Ishmael) alleges that Respondents
Calibur Systems, Inc. and United Petroleum Corporation violated the SWDA by terminating
his employment for engaging in protected activity. The ALJ held that Respondents violated
the SWDA and that Ishmael is therefore entitled to reinstatement, back pay, compensatory
damages and attorney's fees.
1 The ALJ's analysis
discusses at length Ishmael's establishment of a prima facie case. R. D. and O. at 19-22.
Since this case was fully tried on the merits, the ALJ's task was to weigh all the evidence and testimony
and decide whether the Ishmael had proven by a preponderance of the evidence that Respondents
intentionally discriminated against him because of his protected activity. Once Respondents presented
their rebuttal, the answer to the question whether Ishmael had presented a prima facie case
was no longer particularly useful. James v. Ketchikan Pulp Co., Case No. 94-WPC-4, Sec.
Fin. Dec. and Ord., Mar. 15, 1996, slip op. at 3; Cook v. Kidimula International, Inc.,
Case No. 95-STA-44, Sec. Fin. Dec. and Ord. of Dism., Mar. 12, 1996, slip op. at 2, n.3;
Creekmore v. ABB Power Systems Energy Services, Inc., Case. No. 93-ERA-24, Dep. Sec.
Dec. and Rem. Ord., Feb. 14, 1996, slip op. at 7-8.
2 The ALJ
improperly deducted the $24.50 in Federal Express charges as being included in overhead expenses.
Specific delivery charges incurred in the case are recoverable as costs.