ARB CASE NO. 05-024
ALJ CASE NO. 2004-LCA-36
DATE: November 29, 2006
In the Matter of:
SEYANABOU A. NDIAYE,
COMPLAINANT,
v.
CVS STORE NO. 6081,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Seyanabou A. Ndiaye, pro se,
Cincinnati, Ohio
For the Respondent:
Martha A. Schoonover, Esq., John
F. Scalia, Esq., Greenberg Traurig, LLP, McLean, Virginia
FINAL
DECISION AND ORDER
The Complainant,
Seyanabou A. Ndiaye, has filed a complaint with the Wage and Hour, Employment
Standards Division of the Department of Labor (DOL), alleging a violation of
H-1B provisions of the Immigration and Nationality Act.[1]
A DOL Administrative Law Judge (ALJ), granted the Respondent CVS’s Motion for
Summary Judgment, finding that Ndiaye failed to file a timely complaint and
raised no questions of fact regarding her entitlement to tolling of the statute
of limitations.
The question
presented to the Administrative Review Board for determination is whether the
ALJ properly granted CVS’s Motion for Summary Judgment and dismissed
[Page 2]
Ndiaye’s complaint on the grounds that there were no genuine issues of material fact as
to the date of filing of Ndiaye’s complaint with the DOL. Finding, as
discussed below, that Ndiaye, as a matter of law, failed to present any genuine
issue of material fact as to the date of filing of her complaint and failed to
proffer grounds sufficient to toll the limitations period, we agree with the
ALJ’s recommendation to dismiss Ndiaye’s complaint.
Background
In November of
2000, the Respondent, CVS, submitted a Labor Contract Agreement (LCA) to the
DOL seeking certification to employ Ndiaye as a pharmacy intern.[2]
The DOL granted the certification and CVS hired the Complainant on the basis of
an H-1B visa. On August 2, 2002, CVS fired Ndiaye. The Complainant describes
the action taken against her as a suspension until further notice, while CVS insists
the action was a termination of employment. No further employment actions
occurred after this date between the two parties. On August 20, 2002, the Complainant,
through counsel, sent a letter to CVS claiming retaliatory suspension of
employment based on Ndiaye reporting violations of an H-1B visa. CVS responded
stating that they were considering further review. Neither party to the
dispute filed the letter with the DOL at the time of the correspondence.
On November 5,
2002, the Complainant filed a Title VII[3]
claim of discrimination action with the Equal Employment Opportunity Commission
(EEOC) alleging discrimination based on race and national origin.[4]
When filling out the EEOC form, the Complainant marked the last violation as
occurring on August 2, 2002. Additionally, when given the option of checking a
box that marks the complaint as a “continuing
[Page 3]
violation,” the Complainant chose
not to select that option.[5]
CVS filed a response on December 3, 2002, denying all allegations. On January
17, 2003, the EEOC closed its file stating that it found no violation of Title
VII in the evidence provided.
The Complainant
also filed an action with the Unemployment Compensation Review Commission
(UCRC). The UCRC denied the Complainant’s request for unemployment benefits on
September 16, 2002. The Complainant filed a timely appeal of the UCRC’s decision
with a hearing officer. The hearing officer denied Ndiaye’s claim in January
of 2003. Through counsel, Carrie Barron, the Complainant attempted to persuade
the UCRC to reconsider its decision in late January 2003.[6]
The Complainant’s appeal was denied.
On March 30,
2004, the Complainant filed a WH-4 form with the DOL initiating this
proceeding. Because the DOL determined that the Complainant had not filed her
complaint in a timely manner, it issued its decision denying her relief in July
2004, without completing an investigation.
The Complainant
appealed the dismissal of her complaint by the Wage and Hour Division to a DOL ALJ.
The ALJ ruled that Ndiaye did not timely file her complaint. He found that CVS
terminated Ndiaye’s employment on August 2, 2002. She did not file her
complaint with the DOL until April 1, 2004. Under Title 8 U.S.C.A. § 1101 et
seq. and 20 C.F.R. § 655.806(a)(2006), the statute of limitations for filing
H-1B matters with the DOL Wage and Hour Division is one-year (12 months).
The ALJ also
found that the Complainant’s letter of August 20, 2002, to the CVS Human
Resource Manager did not constitute a continuing violation that would toll the limitations
period. Most notably, the letter was not filed with the DOL until July 2, 2004,
when the Complainant first filed her H-1B complaint. The ALJ ruled that there
was no issue of material fact as to whether the complaint was filed within the
one year statute of limitations.
Under the
provisions of 29 C.F.R. § 18.40 (2006), the ALJ may “enter summary judgment for
either party if the pleadings, affidavits, material obtained by discovery or
otherwise, or matters officially noticed show that there is no genuine issue as
to any material fact and that a party is entitled to summary decision.”[7] On
September 10, 2004, the ALJ dismissed the complaint as a matter
of law in granting the Respondent’s motion for summary judgment.
[Page 4]
The Complainant
was given until October 10, 2004, to petition the Administrative Review Board
(ARB or Board) for review. She did not file a petition until December 1,
2004. The ARB issued an Order to Show Cause, for the Complainant to
demonstrate a sufficient reason to allow an untimely filing of her appeal. In
her Response to the Order to Show Cause, Ndiaye relied on an order issued by
the ALJ. In the Order, entitled “Joint Order: Order Amending Order Granting
Motion for Summary Decision to be Recaptioned as Decision and Order Granting
Summary Decision and Dismissal of the Complaint; Order Treating Complainant’s
Document Captioned Hearing on Issues of Genuine Facts as Complainant’s Petition
for Review and Request for Hearing on Issues of Genuine Facts; Order
Transferring the Matter to the Administrative Reivew [sic] Board as a Petition
for Review, and Order of Cancellation of Hearing,” the ALJ states that the
original complaint should be transferred to the ARB and treated as a timely
filed petition for review. The ALJ also attached a service sheet to the Order
indicating that the Legal Assistant served a copy of the Order on the ARB via
regular mail. Because Ndiaye had reasonably relied on the ALJ’s irregular
order to her detriment, we determined that it was appropriate to toll the
limitations period for filing her appeal and accept her petition for review.
Jurisdiction and Standard of Review
The Board has
jurisdiction to review an ALJ’s decision concerning the INA.[8]
Under the Administrative Procedure Act, the Board, as the Secretary of
Labor’s designee, acts with “all the powers [the Secretary] would have in
making the initial decision . . . .” [9]
The Board reviews the ALJ’s decision de novo.[10]
Under a de novo standard of review, the reviewing court considers the matter
anew and freely substitutes its own judgment for that of the lower court.
[Page 5]
The standard for granting summary decision is essentially
the same as that found in the rule governing summary judgment in the federal
courts.[11]
Accordingly, summary decision is appropriate if there is no genuine issue of
material fact. The determination of whether facts are material is based on the
substantive law upon which each claim is based.[12] A genuine issue of material fact is
one, the resolution of which “could establish an element of a claim or defense
and, therefore, affect the outcome of the action.”[13]
We view the evidence in the light most favorable to the
non-moving party and then determine whether there are any genuine issues of
material fact and whether the ALJ correctly applied the relevant law.[14] “To prevail on a motion for summary
judgment, the moving party must show that the nonmoving party ‘fail[ed] to make
a showing sufficient to establish the existence of an element essential to the
party’s case, and on which that party will bear the burden of proof at trial.’”[15] Accordingly, a moving party may prevail
by pointing to the “absence of evidence proffered by the nonmoving party.”[16]
Furthermore, a party opposing a motion for summary decision
“may not rest upon the mere allegations or denials of [a] pleading. [The
response] must set forth specific facts showing that there is a genuine issue
of fact for the hearing.”[17]
Discussion
The Complainant,
in her briefs to the Board, reiterates her actual complaints against CVS in relation
to the H-1B violation, but she raises no material facts related to the question
of timeliness. The rule under 20 C.F.R. § 655.806(a)(5) is:
[Page 6]
A complaint must be
filed not later than 12 months after the latest date on which the alleged
violation(s) were committed, which would be the date on which the employer
allegedly failed to perform an action or fulfill a condition specified in the
LCA, or the date on which the employer, through its action or inaction,
allegedly demonstrated a misrepresentation of a material fact in the LCA.
The Respondent
contends that after August 2, 2002, the date on which CVS terminated her
employment, the Complainant had no further employment relationship with CVS. The
limitations period begins to run from the date of the last alleged violation.[18]
The last alleged violation pertinent to the H-1B complaint was CVS’s
termination of the Complainant’s employment. CVS clearly demonstrated its
intention to terminate the Complainant’s employment. The Complainant no longer
worked for CVS after August 2, 2002, and she received no payment or benefits
from CVS for time worked after this date. However, Ndiaye did not file her complaint
until April 1, 2004. Additionally, the Complainant did not allege, before the
ALJ or in any briefs presented to the ARB, any further violations after August
22, 2002, that might toll the statute of limitations.
In her Rebuttal
Brief in Response to Respondent’s Reply Brief on ALJ’s Granting of Motion of
Summary Judgment, the Complainant contends that the August 22, 2002 letter from
her counsel to CVS and CVS’s subsequent response amounted to an ongoing conflict
with no resolution. However, the letter does not imply that any further
employment contract would arise, or that any violation occurred, after the
point of Ndiaye’s termination from CVS. There is no evidence in the letter
that either party expected further employment, rather only a resolution of the
disputed claim. CVS believed its actions terminated the Complainant’s
employment on August 2, 2002. Although the Complainant contends that she
believed that her employment was merely suspended and that future employment
might be possible, a subjective belief by one party that termination might not occur
does not toll the statute of limitations.[19]
An objective reading of the letter does not lead the reader to the belief that
it constituted a continuance of the employment contract between CVS and Ndiaye.
The ALJ decided
that the August 22, 2002 letter was not evidence of a continuing violation
sufficient to toll the statute of limitations. Further, the ALJ ruled that after
the August 22, 2002 letter, regardless of whether the employment action was a
firing or a suspension, neither side acted in any manner to extend the
employment relationship sufficient to toll the statute of limitations. The
ALJ’s interpretation of the letter is valid.
[Page 7]
The letter does not present a
genuine issue of material fact relevant to the issue whether Ndiaye timely
filed her complaint.
The Complainant
also relies in her Brief on Review of the Administrative Law Judge’s Decision on
the fact that the DOL accepted her case in July of 2004 for investigation. The
DOL stopped its investigation after determining that the filing of the claim
was untimely. The fact that the Wage and Hour Division accepted the case prior
to investigating the question of timeliness does not constitute a genuine issue
of material fact relevant to the issue whether Ndiaye timely filed her
complaint because the WHD could not decide whether she timely filed her
complaint without first accepting the case for investigation. The Complainant
has failed to demonstrate that either she or CVS initiated any action or that a
subsequent violation occurred, sufficient to toll the statute of limitations.
In her Brief on
Review of the Administrative Law Judge’s Decision, Ndiaye focuses primarily on
the merits of her claim, which are not at issue in this appeal. The Board has
held that limitation periods adopted to expedite the administrative resolution
of cases that do not confer important procedural benefits upon individuals or
other third parties outside the ARB are subject to equitable tolling.[20]
The ARB has recognized three situations in which it will accept an untimely
complaint.[21]
(1) When the respondent has actively misled the complainant respecting her
rights to file a petition,
(2) The complainant has in some extraordinary way been prevented from
asserting his or her rights, or
(3) The complainant has raised the precise statutory claim in issue but has
mistakenly done so in the wrong forum.[22]
Ndiaye bears the
burden of justifying the application of equitable modification principles.[23]
Ignorance of the law will not support a finding of entitlement to equitable
[Page 8]
tolling.[24]
Ndiaye failed to address her entitlement to equitable tolling, either before
the ALJ or the Board. Generally, the Board will not consider an issue that a
party has not raised and briefed.[25]
Nevertheless even if Ndiaye had raised this issue in this case, she has raised
no genuine issue of material fact relevant to the applicability of equitable
tolling to her complaint.
First, there is no
evidence that the Respondent actively misled the Complainant with respect to
her rights to file a complaint, nor has the Complainant made any assertion that
she was so misled.
Second, there is no
genuine issue of material fact regarding whether Ndiaye was in some extraordinary
way prevented from asserting her rights. In fact, it appears that quite the
opposite was true. The Complainant contacted at least three different
organizations seeking remedies for her situation. Both the EEOC and the UCRC
denied her claims on the merits. Additionally, there is no evidence that the Complainant
was prevented from seeking relief on the H-1B claim prior to filing her
complaint in July of 2004. Her counsel correctly identified the issue in his August
20, 2002 letter. Since the Complainant was not prevented from asserting her
rights, equitable tolling is not applicable.
Finally, there is no
genuine issue of material fact regarding whether Ndiaye mistakenly raised the
precise statutory claim but in the wrong forum. The letter the Complainant’s
counsel, Richard I. Fleischer, wrote to the Human Resource Manager of CVS the
appropriate statutory claim for the Complainant. In it, the Complainant
asserts that the Respondent fired her when she complained that she was
inappropriately placed as a Pharmacy Service Associate rather than a Pharmacy
Intern, as required by her H-1B visa. In the present case, the Complainant
should have filed with the Wage and Hour Division of the Department of Labor.[26]
The Complainant’s letter to CVS dated August 20, 2002, did not constitute a
filing in any forum, mistaken or not. A forum is a court or other judicial
body.[27]
CVS, as an employer and not a judicial body, does not meet the
[Page 9]
definition of
forum. There was no mistake in filing here, as the complaint was never filed
in a venue qualifying as a forum.
Ndiaye raised no
genuine issues of material fact in relation to the question of timely filing. The
ALJ properly found that there were no material facts pertinent to the untimely
filing of the Complainant’s complaint. Additionally, the Complainant fails to
provide any evidence of material fact which would allow her to claim relief
under the doctrine of equitable tolling.
Conclusion
The Complainant failed
to raise any genuine issue of material fact regarding the untimely filing of
her claim. She fails to provide any explanation for the fact that more than 12
months elapsed prior to the filing of her claim of an H-1B violation.
Additionally, Ndiaye raised no genuine issue of material fact regarding the
applicability of equitable tolling in evaluating her complaint since there is
no showing that the Respondent misled Ndiaye as to her rights to file a claim; she
was not prevented from filing; and she failed to file this claim in any forum
prior to April 2004.
Accordingly,
since there are no genuine issues of material fact, we AFFIRM the ALJ’s
Order Granting Motion for Summary Judgment and DISMISS the complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1]
8 U.S.C.A.§ 1101 et seq. (West 2006).
[2]
The INA permits employers in the United States to hire nonimmigrant alien workers in specialty occupations. 8 U.S.C.A. §
1101(a)(15)(H)(i)(b). These workers commonly are referred to as H-1B
nonimmigrants. Specialty occupations require specialized knowledge and a
degree in the specific specialty. 8 U.S.C.A. § 1184(i)(1). To employ H-1B
nonimmigrants, the employer must fill out a Labor Condition Application (LCA).
8 U.S.C.A. § 1182(n). The LCA stipulates the wage levels that the employer
guarantees for the H-1B nonimmigrants. 8 U.S.C.A. § 1182(n)(1); 20 C.F.R. §§
655.731, 655.732. After securing DOL certification for the LCA, the employer
petitions for and the nonimmigrants receive H-1B visas from the State
Department upon Immigration and Naturalization Service (INS) approval. 20
C.F.R. § 655.705(a), (b) (The INS is now the “U.S. Citizenship and Immigration
Services” or “USCIS,” which is located within the Department of Homeland
Security (DHS). See Homeland Security Act of 2002, Pub.
L. No. 107-296, 116 Stat. 2135, 2194-96 (Nov. 25, 2002)).
[3]
42 U.S.C.A. § 2000e et seq.
(West 2006).
[4]
Respondent CVS’s Motion for
Summary Judgment, Ex. 4: EEOC Form 5 (Rev.
07/99), Charge Number 221A300091, filed 10/28/2002.
[5]
Id.
[6] Docket number #R02-23293-0000 for
the Unemployment Compensation Review Commission in Columbus, Ohio.
[7] 29 C.F.R. § 18.40(d).
[8] 18 U.S.C.A. § 1182(n)(2) and 20 C.F.R. §
655.845. See also Secretary’s Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct.
17, 2002) (delegating to the ARB the Secretary’s authority to review cases
arising under, inter alia, the INA).
[9] 5 U.S.C.A. § 557(B) (West 1996), quoted in Goldstein
v. Ebasco Constructors, Inc., 1986-ERA-36, slip op. at 19 (Sec’y Apr. 7,
1992).
[10] Yano Enters., Inc. v. Administrator,
ARB No. 01-050, ALJ No. 2001-LCA-0001, slip op. at 3 (ARB Sept. 26, 2001); Administrator
v. Jackson, ARB No. 00-068, ALJ No. 1999-LCA-0004, slip op. at 3 (ARB Apr.
30, 2001). See generally Mattes v. United States Dep’t of Agric.,
721 F.2d 1125, 1128-1130 (7th Cir. 1983) (rejecting argument that higher level
administrative official was bound by ALJ’s decision); McCann v. Califano,
621 F.2d 829, 831 (6th Cir. 1980), and cases cited therein (sustaining
rejection of ALJ’s decision by higher level administrative review body).
[11] Fed. R. Civ. P.
56.
[12] Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
[13] Bobreski v.
United States EPA, No. 02-0732(RMU), 2003
WL 22246796, at *3 (D.D.C. Sept. 30, 2003).
[14] Lee v.
Schneider Nat’l, Inc., ARB No. 02-102, ALJ
No. 2002- STA-25, slip op. at 2 (ARB Aug. 28, 2003); Bushway v. Yellow
Freight, Inc., ARB No. 01-018, ALJ No. 00-STA-52, slip op. at 2 (ARB Dec.
13, 2002).
[15] Bobreski, at *3 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
[16] Bobreski, at *3.
[17] 29 C.F.R. §
18.40(c)(2006). See Webb v. Carolina Power & Light Co., No.
93-ERA-42, slip op. at 4-6 (Sec’y July 17, 1995).
[18
Delaware State College v. Ricks, 449 U.S. 250, 257-261 (1980).
[19] Ballentine v. Tennessee Valley Authority, ALJ No. 91-ERA-23, slip op. at 2 (Sep. 23 1992); see English v. Whitfield, 858 F.2d 957, 961-962 (4th Cir. 1988); Janikowski v. Bendix Corp., 823 F.2d 945, 947 (6th Cir. 1987).
[20] Harvey v. Home Depot U.S.A., Inc.,
ARB Nos. 04-114 and 115, ALJ Nos. 2004-SOX-20 and 36, slip op. at 16 (ARB June
2, 2006).
[21] Hemingway v. Northeast Utilities, ARB
No. 00-074, ALJ Nos. 99-ERA-014, 015, slip op. at 4 (ARB Aug. 31, 2000); Guiterrez
v. Regents of the Univ. of Cal, ARB No. 99-116, ALJ No. 98-ERA-19, slip op.
at 3 (ARB Nov. 8, 1999).
[22] Accord School Dist. of Allentown v.
Marshall, 657 F.2d 16, 18 (3d Cir. 1981)(the court held that a statutory
provision of the Toxic Substances Control Act, 15 U.S.C. § 2622(b)(1976 &
Supp. III 1979), providing that a complaint must file a complaint with the
Secretary of Labor within 30 days of the alleged violation, is not
jurisdictional and may therefore be subject to equitable tolling); see Hemingway
v. Northeast Utilities, ARB No. 00-074, ALJ Nos. 99-ERA-014, 015, slip op.
at 4 (ARB Aug. 31, 2000); Guiterrez v. Regents of the Univ. of Cal, ARB
No. 99-116, ALJ No. 98-ERA-19, slip op. at 3 (ARB Nov. 8, 1999).
[23]
Higgins v. Glen Raven Mills, Inc., ARB No. 05-143, ALJ No. 2005-SDW-7, slip op. at 8
(ARB Sep. 29, 2006); see Wilson v. Sec’y, Dep’t of Veterans Affairs,
65 F.3d at 404 (complaining party in Title VII case bears burden of
establishing entitlement to equitable tolling).
[24] Accord Wakefield v. Railroad Retirement Bd., 131 F.3d 967, 970 (11th Cir. 1997); Hemingway v. Northeast Utilities, ARB No. 00-074,
ALJ Nos. 99-ERA-014, 015, slip op. at 4-5 (ARB Aug. 31, 2000).
[25]
Higgins at *8.
[26]
20 C.F.R. § 655.806(a)(1)(2006).
[27]
Blacks Law Dictionary (8th ed. 2004)(West 2004).
