II B 1 Filing of complaint, generally
[STAA Digest II B 1]
ORAL COMPLAINT - FLSA ANTI-RETALIATION ACTION
In Valerio v. Putnam Associates,
Inc., No. 98-1399 (1st Cir. Apr. 9,
1999), the court considered whether the Fair Labor Standards Act anti-retaliation provision, 29
U.S.C. § 215(a)(3), protects written internal complaints, and found that it does. In
footnote 4, the court noted that it was leaving for another day the question whether combined
oral and written complaints, or alleged complaints of a wholly oral nature, allow invocation of
the protections of § 215(a)(3). In so noting, the court cited by comparison Clean
Harbors Environ. Serv., Inc. v. Herman, 146 F.3d 12 (1st Cir.
1998), a STAA anti-retaliation decision in which the panel spoke of a combination oral/written
complaint as "filed."
[STAA Whistleblower Digest II B 1]
REQUEST FOR ALJ HEARING; FAILURE TO SERVE OPPOSING PARTY
In Thissen v. Tri-Boro Construction Supplies, Inc., ARB No. 04-153, ALJ No. 2004-STA-35 (ARB Dec. 16, 2005), the Complainant failed to mail a copy of his objections to the OSHA determination and request for ALJ hearing to the Respondent as required by the STAA regulations. The ARB affirmed the ALJ's ruling that this failure did not defeat the Complainant's right to a hearing because the Respondent had not been unduly prejudiced by the short delay between the filing deadline and when it actually received a copy of the objections/hearing request.
II.B.2. Protected activity occurred
prior to effective date of
STAA
Where Complainant engaged in protected activity prior to the
effective date of the STAA, but was fired after the effective
date, the Secretary held that the employee protection provision
of the STAA protects employees from reprisals taking place after
January 6, 1983 (the effective date of the STAA), regardless of
when the employee conduct which motivated the employer
occurred.
The Secretary concluded that the STAA's employee protection
provision parallels the "participation" clause of Title
VII's employee protection section, and therefore cited
Abramson v. University of Hawaii, 594 F.2d 202 (9th Cir.
1979) (retaliation against employee after the Title VII became
applicable for employee's filing a charge with EEOC prior to that
date -- the "participation" clause at 42 U.S.C. §
2000e-3(a)) and distinguished Winsey v. Pace College, 394
F. Supp. 1324 (S.D.N.Y. 1975) (no violation of employee
protection clause of Title VII when employee expressed opposition
to a practice which was not, at the time, a violation of Title
VII -- the "opposition" clause at 42 U.S.C. §
2000-3(a)).
Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1 (Sec'y
July 13, 1984).
[STAA Whistleblower Digest II B 2]
TIMELINESS OF COMPLAINT; JUDICIAL LATITUDE TOWARDS PRO SE LITIGANTS IN RAISING ARGUMENTS
In Farrar v. Roadway Express, ARB No. 06-003, ALJ No. 2005-STA-46 (ARB Apr. 25, 2007), the ARB affirmed the ALJ's finding that the Complainant had not filed a timely complaint of retaliation under the STAA in regard to his discharge. However, the ALJ erred in failing to address the Complainant's allegation that he had attempted to raise a complaint with OSHA alleging that he was retaliated against during a grievance proceeding because the Respondent had presented false and misleading information. OSHA had dismissed the complaint for lack of timeliness and closed the investigation. When the Complainant subsequently mailed a packet of materials to OSHA, it returned the packet to the Complainant unopened. The Complainant alleged that a letter in that packet clarified that his complaint included the Respondent's actions at the grievance proceedings. Before the ALJ, the Respondent filed a motion to dismiss based on lack of timeliness of the complaint following the discharge. The Complainant's response only addressed timeliness in regard to the discharge and did not address timeliness in regard to the grievance proceeding. Although the ALJ was aware of the allegation concerning the grievance proceeding, he recommended dismissal based on motion to dismiss. On appeal to the ARB, the ARB construed the Complainant's position liberally and with a degree of judicial latitude because of his pro se status, and remanded for the ALJ to make findings regarding the grievance hearing allegations.
[STAA Whistleblower Digest II B 2]
FILING OF COMPLAINT; VISIT TO OSHA OFFICE
Where Complainant had visited an OSHA office and brought up matters potentially cognizable under the STAA whistleblower law, but the OSHA official told him that a complaint would not be taken until the Complainant had exhausted grievance/arbitration rights, and it was only after the arbitration was completed that Complainant filed a written complaint, Respondent argued that the complaint was not timely because 180 days had already passed. The ARB adopted the ALJ's conclusion that Complainant filed a valid and timely complaint when he first visited the OSHA office. The ALJ had reasoned that although the OSHA official had not followed the OSHA procedural manual's requirements for filing a complaint; the manual was neither a regulation nor a statute; that the STAA regulations do not mandate procedure, form or content for filing a complaint; that the notes made by the OSHA official together with other records at the OSHA office sufficiently identified the essential nature of the complaint and the identity of the parties; and that Respondent had adequate and sufficient notice to prepare for the hearing. Harrison v. Roadway Express, Inc., ARB No. 00-048, ALJ No. 1999-STA-37 (ARB Dec. 31, 2002).
[STAA Whistleblower Digest II B 2]
TIMELINESS OF COMPLAINT
In Thissen v. Tri-Boro Construction Supplies, Inc., ARB No. 04-153, ALJ No. 2004-STA-35 (ARB Dec. 16, 2005), the Complainant filed a STAA complaint alleging that the Respondent violated the STAA because it had failed to comply with the terms of a settlement agreement. The ARB found that the ALJ properly granted the Respondent's motion for summary decision where the Complainant unquestionably filed his complaint more than 180 days after learning that the Respondent was not complying with the settlement agreement and the circumstances did not warrant tolling of the statute of limitations.
[STAA Whistleblower Digest II B 2]
TIME LIMITATIONS ON FILING IN DISCRIMINATION CLAIMS,
GENERALLY
In National Railroad Passenger Corp. v.
Morgan, _ US _, 122 S Ct 2061, 153 L Ed 2d 106 (2002), a Title VII claim,
the United States Supreme Court examined the application of time limitations in situations
involving the raising of claims of discrete discriminatory or retaliatory acts, and situations
involving charges alleging a hostile work environment. The Court held that a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his or her charge within the statutory period, but that claims based on a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. In neither instance is a court barred from applying equitable doctrines that may toll or limit the time period. An employer may raise laches if the plaintiff unreasonably delays filing and as a result harms the defendant.
II.B.2. Decision on timeliness of complaint prior to
hearing
In Ellis v. Ray A. Schoppert Trucking, 92-STA-28
(ALJ Aug. 7, 1992), the ALJ determined initially and
conditionally that the threshold issue of whether the complainant
timely filed his complaint did not require a formal hearing for
its resolution. Accordingly, he issued an order to show cause
why the complaint should not be dismissed. Included in the order
was expository text describing the rationale for dismissal of the
claim. The order directed the parties to state why this text
should not be adopted and forwarded to the Secretary as the
recommended decision and order. No party responded, and the ALJ
forwarded an Order of Dismissal to the Secretary.
In affirming the dismissal, the Secretary voiced no objection to
the ALJ's handling of the issue. Ellis v. Ray A. Schoppert
Trucking, 92-STA-28 (Sec'y Sept. 23, 1992).
II.B.2. 30 day period for requesting a
hearing is a jurisdictional
matter
The statutory provision which authorizes the filing of
objections and requests for a hearing differs from that which
authorizes the filing of complaints in that the former states
that "[w]here a hearing is not timely requested, the
preliminary order shall be deemed a final order which is not
subject to judicial review." 49 U.S.C. §2305(c)(2)(A).
The ALJ concluded that this language indicates that the 30-day
period for filing objections and requesting a hearing is
jurisdictional. Flener v. Julius Kolesar, Inc., 86-STA-26
(ALJ Sep. 12, 1986).
[Editor's note: The Secretary adopted the ALJ's dismissal on
other grounds and did not address the jurisdictional issue
above.]
II.B.2.a. Weight and effect of
Assistant Secretary's findings
in STAA case; effect of
objection to order but not
findings
In a proceeding under STAA, 49 U.S.C. app. § 2305, a party
may explicitly object to the Assistant Secretary's preliminary
"order," without placing the preliminary
"findings" at issue before the administrative law
judge. See 49 U.S.C. app. § 2305(c)(2)(A); 29 C.F.R.
§ 1978.105(a). Generally speaking, the Assistant
Secretary's preliminary findings are deemed final and not subject
to review where the parties fail to object to the findings within
thirty days.
Where an objection to the findings or preliminary order is filed,
a hearing is conducted de novo by an administrative law judge.
20 C.F.R. § 1978.106(a). Thus, the investigative findings
have effect only if unchallenged. In the event that a hearing is
requested, they are not accorded weight in any decision in the
case.
Where, however, it appeared that the employer had accepted the
terms of the preliminary findings and order only as a matter of
expediency (intending those terms to act as a settlement offer),
it was unclear whether the Employer was actually notified of the
complainant's objection to the order (which did not require
reinstatement), it was not clear that the pro se employer was
advised that complainant's objection did not place the entire
case at issue until just prior to the hearing, any attempt to
press the administrative law judge to expand the hearing issues
would probably have been futile, and none of the administrative
law judge's pre-hearing orders directly required or solicited
employer's position on this precise issue. The Secretary found
that, under these precise circumstances, the employer had not
been offered proper notice and meaningful opportunity to respond
to the Assistant Secretary's preliminary decision, and remanded
the case for a de novo hearing on the merits. Smith v.
Specialized Transp. Servs., 91-STA-22 (Sec'y Nov. 20,
1991).
II B 2 a Failure to make timely objection to
finding of the Regional Administrator
The Act and the regulations expressly provide that any objections
to the findings of the Regional Administrator shall be filed
within 30 days of a complainant's receipt of such findings or
orders. If this mandatory time frame is not followed, the
Regional Administrator's determinations become the final decision
of the Agency, by operation of law. See 47 U.S.C. §
2305(c)(2)(A) and 29 C.F.R. § 1978.105.
Thus, where the Complainant failed to make a timely objection to
the preliminary findings (though he did make an untimely
objection), and ignored the ALJ's order to show cause, the
Secretary adopted the ALJ's recommendation of dismissal of the
complaint.
Green v. Curtis Expo & Storage, 94-STA-47
(Sec'y Mar. 16, 1995).
II.B.2.b. Sufficiency of objection to
STAA preliminary finding;
request for extension
tantamount to
objection
In Spearman v. Roadway Express, Inc., 92-STA-1
(Sec'y Aug. 5, 1992), the complainant sent a letter to OALJ
within the 30-day filing limit requesting an extension in order
to retain counsel and to prepare and file his objections to the
preliminary findings of the Assistant Secretary. OALJ docketed
the case and issued an order extending the filing period.
Respondent's counsel entered an appearance -- he did not except
to the order extending the filing period. Complainant was
granted a second extension, citing emergency surgery and
difficulties securing documentation; he previously contacted
respondent's law department in regard to the need for this
extension. complainant's objections were timely received within
the extended period.
The Secretary found that complainant's objection was implicit in
the statement that he required additional time in which to
prepare and file objections. She noted that OALJ apparently
understood the letter to express an objection because the case
was docketed and assigned to an ALJ for hearing. Under the
circumstances, the Secretary construed the first extension
request to be a timely objection to the Assistant Secretary's
investigation findings, and the later filing to be a
clarification and supplement to his objection.
[Editor's Note: The Secretary also found that, even assuming the
request did not suffice as an objection, fairness requires
tolling of the time limitation. See headnote at
II.B.2.d.ii.]
II.B.2.c.i. Date of filing determined
by postmark
In STAA proceedings, the date of postmark is considered the date
of filing a request for a hearing before an ALJ. 29 C.F.R.
§ 1978.105(a). Spearman v. Roadway Express,
Inc., 92-STA-1 (Sec'y Aug. 5, 1992).
II.B.2.c.ii. Computation of timeliness of
filing
In Spearman v. Roadway Express, Inc., 92-STA-1
(Sec'y Aug. 5, 1992), the Secretary found that a letter
containing complainant's objection to the finding of the
Assistant Secretary was timely under 29 C.F.R. § 1978.104(b)
where the Assistant Secretary's finding was dated Thursday,
September 26, 1991, and the letter was postmarked October 28.
The Secretary assumed a two-day delivery time.
Alternatively, the Secretary found that 29 C.F.R. §
18.4(c)(1) arguably permits the addition of five days to the
prescribed period for documents delivered by mail. She noted
that 29 C.F.R. § 1978.106(a) applies the procedures
appearing at Part 18 to STAA hearings.
II.B.2.c.ii. Timeliness of filing of complaint
Since neither the statute, the implementing regulations, nor an
executive order establishes the method for computing the 180 day
limitation period for filing a complaint under section 405 of the
Surface Transportation Assistance Act of 1982, 49 U.S.C. app.
§ 2305, the Rules of Practice and Procedure for
Administrative Hearings Before the Office of Administrative Law
Judges, 29 C.F.R. Part 18 are applicable. See 29 C.F.R.
§ 18.1(a).
Thus, where a complainant filed his STAA whistleblower complaint
on the 181st day following his discharge, but that day was a
Monday, the complaint was timely since 29 C.F.R. § 18.4(a)
moves the time period to the next business day where the last day
of the period is a Saturday, Sunday or legal holiday observed by
the Federal government. Greathouse v. Greyhound Lines,
Inc., 92-STA-18 (Sec'y Aug. 31, 1992).
[STAA Digest II B 2 c iii]
TIMELINESS OF REQUEST FOR HEARING; LIMITATIONS PERIOD FOUND TO HAVE RUN FROM DATE THAT COMPLAINANT RECEIVED OSHA'S FINDINGS RATHER THAN THE DATE THAT COMPLAINANT'S ATTORNEY LEARNED OF THE FINDINGS
In Smith v. CRST International, Inc., ARB No. 06-146, ALJ No. 2006-STA-31 (ARB June 30, 2008), the Complainant did not file his objections to the OSHA findings and request for hearing until nearly two months after he signed a certified mail receipt for those findings, and therefore the appeal to OALJ was not timely. The ARB rejected the Complainant's contention that the limitations period should run from the time that OSHA mailed the findings to his attorney, or that the time period should be equitably tolled until the date the attorney received the findings. The ARB found that the STAA regulations require OSHA to send a copy of its findings by certified mail "to all parties of record; that the Complainant was a party of record; and that the record contained a certified mail card signed by the Complainant. Compliance with the regulations is not a ground for equitable tolling.
[Editor's note: The ARB decision does not state why the attorney was not notified of the findings at the same time as the parties.]
II.B.2.c.iii. Date of
receipt
The regulations provide that the parties have thirty days
following receipt of the preliminary findings of the Assistant
Secretary in which to object the findings and request a hearing
before an ALJ. 29 C.F.R. § 1978.105(a). Where the
Assistant Secretary issued his findings on August 27, 1992, and
Complainant did not request a hearing until October 15, 1992, the
request was nevertheless timely where Complainant produced a
signed certified mail receipt showing that he did not receive the
Assistant Secretary's findings until September 17, 1992.
Reemsnyder v. Mayflower Transit, Inc., 93-STA-4
(ALJ Nov. 12, 1993).
II B 2 c iii Protected activity occurred before
effective date of Act; discriminatory act
after effective date
In Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1
(Sec'y July 13, 1984), the Complainant's protected activity
occurred before the effective date of the STAA, but the alleged
retaliation occurred after the Act went into effect. The
Secretary held that it is the date of the retaliatory act that
determines the applicability of the Act.
II. B. 2. c. 3 Date of initiation period
In Yellow Freight System, Inc. v. Reich, No. 93-
3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS
15585), the Respondent contended that the trigger date for the
180 limitation period for filing a STAA whistleblower complaint
is the date an employee receives warning letters rather than the
date of actual discharge. The Respondent relied on Local
Lodge No. 1424 v. NLRB, 362 U.S. 411, 415, 80 S. Ct. 822, 4
L. Ed. 2d 832 (1960) (six month statute of limitations under
§ 10(b) of the NLRA prevents attacking legitimacy of
time-barred violations) and NLRB v. McCready and Sons,
Inc., 482 F.2d 872, 875 (6th Cir. 1973) (same).
Observing that the Supreme Court noted in Local Lodge No.
1424 that its decision "has drawn on [the National Labor
Relations Act's] purpose and history, and we do not assert the
universal applicability of our resolution of the particular
question presented for decision." 362 U.S. at 424 n.15, the
Sixth Circuit cited with approval the Secretary adoption of the
following ALJ finding:
Unlike the NLRA, which has the overall purpose of
securing industrial peace through the balance of competing
interests . . . the "whistleblower" provisions of
the Surface Transportation Assistance Act were enacted
specifically to encourage employee reporting of
noncompliance with safety regulations and to protect such
employees against retaliation [*23] for reporting these
violations. Moon v. Transport Drivers, Inc., 836 F.2d
226, 228 (6th Cir. 1987).
The Sixth Circuit concluded that the NLRA and STAA have different
"purposes and histories," and there is no reason to
believe that the Supreme Court intended the rationale of Local
Lodge No. 1424 to apply here.
The Sixth Circuit found more to the point English v.
Whitfield, 858 F.2d 957, 961 (4th Cir. 1988), in which the
Fourth Circuit determined that the statute of limitations begins
to run only upon receipt of "final and unequivocal
notice" of discharge. Until an employee is notified of
termination "there is the possibility that the
discriminatory decision itself will be revoked, and the
contemplated action not taken, thereby preserving the
pre-decision status quo." Id.
The Sixth Circuit found this language to aptly describes the
situation in this case. It also noted that the Respondent's
argument would require employees to file protective STAA
complaints each time they are disciplined, regardless of the
nature of the discipline, or risk being discharged 181 days later
without recourse. The three letters all advised of more severe
discipline if Smith failed to follow company rules; none even
hinted that he would be discharged for events that had already
occurred.
II.B.2.c.iii. Timeliness of filing of complaint; date of
initiation of period
In whistleblower cases, the time for filing a complaint begins
running at "the time of the challenged conduct and its
notification, rather than the time its painful consequences are
ultimately felt...." English v. Whitfield, 858 F.2d
957, 961 (4th Cir. 1988). Accord Jenkins v. City of
Portland, 88-WPC-4 (Sec'y May 22, 1991), slip op. at 6-7.
See also Kelly v. Flav-O-Rich, Inc., 90-STA-14 (Sec'y May
22, 1991), slip op. at 3-4 (pendency of state employment security
commission case did not toll the STAA limitation period). Thus,
in Ellis v. Ray A. Schoppert Trucking, 92-STA-28
(Sec'y Sept. 23, 1992), the time limit began to run on the day
the complainant was discharged rather than the day an
unemployment referee ruled that the complainant was discharged
for failing to work.
II.B.2.c.iii. Suspension followed by later discharge;
"fresh significance" of
incident prompting retaliation
Where the incident that prompted retaliation allegedly took two
forms -- an immediate suspension, and a later discharge -- the
limitation period under the STAA for the discharge commences a
separate limitation period. The idea that the a given activity
should motivate only a single adverse action is logically
defective; rather the incident prompting the retaliation can take
on "fresh significance. See Delaware State College v.
Ricks, 449 U.S. 250 (1980); Stoller v. Marsh, 682 F.2d
971 (D.C. Cir. 1982), cert. denied, 460 U.S. 1037 (1983).
Moyer v. Yellow Freight Systems, Inc., 89-STA-7
(Sec'y Nov. 21, 1989), aff'd in part and rev'd in part both on
other ground sub nom., Yellow Freight System, Inc. v. Martin,
954 F.2d 353 (6th Cir. 1992).
[Note: Compare this case with English v. Whitfield, 858
F.2d 957 (4th Cir. 1988).]
II B 2 c iii Actual receipt governs even though DOL sent
original letter by certified mail
In
Bryant v. Bob Evans Transportation, 94-STA-24
(Sec'y Apr. 10, 1995), the Department investigated the
Complainant's complaint and issued a determination on December
13, 1993 that there was no violation of the STAA. Some time
later, Complainant's wife telephoned the Department to inquire
about the results of the investigation, and was told that the
finding were sent by certified mail in December, and that the
findings were never "picked up" at the post office.
Complainant's wife requested another copy of the findings, which
she promptly picked up on February 5, 1994. Complainant filed an
appeal of those findings on March 4, 1994.
The Secretary found that there was credible evidence that the
Complainant did not receive the findings until February 5, 1994,
and therefore the complaint was timely under 49 U.S.C. §
31105(b)(2)(B).
II.B.2.c.iv. Adequacy of telephone
complaint
In Kovas v. Morin Transport, Inc., 92-STA-41 (ALJ
June 2, 1993), adopted in part and reversed in part on other
grounds, (Sec'y Oct. 1, 1993), the ALJ found that a telephone
contact of an OSHA office was sufficient to establish a timely
filing of a STAA complaint. In so ruling, the ALJ noted that the
STAA regulations do not require any particular form of complaint,
case law makes it clear that the complaint procedure is
relatively informal, the regulations provide for use of a
telephone to contact an OSHA office, and the record indicated
that OSHA field offices accept telephone complaints and the field
operations manual provides authorization for the process. The
Secretary agreed with the ALJ that "the complaint was
appropriately and timely filed with OSHA."
[STAA Whistleblower Digest II B 2 c iv]
TIMELINESS OF COMPLAINT; TELEPHONE CALL TO OSHA TO GIVE A "HEAD'S UP" ABOUT ANTICIPATED RETALIATION
In Farrar v. Roadway Express, ARB No. 06-003, ALJ No. 2005-STA-46 (ARB Apr. 25, 2007), the Complainant argued that he timely filed a STAA complaint when he called OSHA from a truck stop to give it a "heads-up" that he suspected that he may be retaliated against in an upcoming grievance hearing. The ARB rejected this contention, holding that that, "while … 29 C.F.R. § 1978.102 provides that '[n]o particular form of complaint is required,' at the very least a complainant must evince his current intention to file a complaint." USDOL/OALJ Reporter at 8. The ARB distinguished Harrison v. Roadway Express, Inc., 1999-STA-37 (ALJ Dec. 16, 1999), aff'd ARB No. 00-048 (ARB Dec. 31, 2002), because in that case the complainant had personally visited an OSHA office and provided specific and detailed information on the nature of the complaint sufficient to permit OSHA to build the entire complaint from the record of the interview, whereas in the instant case the Complainant had not alleged that he had provided such details, nor that his phone call was memorialized in notes or a logbook as had happened in Harrison.
II.B.2.c.iv. Telephonic complaint establishes date for
determining timeliness
Citing 29 C.F.R. § 1978.102(b) and (c), the ALJ in
Kovas v. Morin Transport, Inc., 92-STA-41 (ALJ June
2, 1993), held that the date the Complainant telephoned OSHA and
alleged a discriminatory discharge in retaliation for his
complaints about maintenance and safety of trucks was the date to
determine the timeliness of his complaint.
II.B.2.c.iv. Telephone complaint
In Reemsnyder v. Mayflower Transit, Inc., 93-STA-4
(ALJ Nov. 12, 1993), the ALJ accepted Complainant's credible and
uncontradicted testimony that he had first contacted OSHA with
his complaint in July by telephone rather than on October 21(the
first OSHA document recording a contact). The record contained a
letter from a United States Senator dated October 11 referring to
Complainant's earlier complaint. The final day of the 180 day
filing period was October 15.
The ALJ noted that the regulations do not require any particular
form of complaint, and concluded that both Complainant's initial
contact and the Senator's letter, both were sufficient to
constitute timely complaints.
The ALJ indicated that he would also invoke equitable tolling for
the six days until the first recorded OSHA contact based on
Complainant's mistaken belief that DOT would also pursue the
section 2305 claim if it substantiated his allegations of safety
violations.
II.B.2.d. NLRB cases;
precedential
value
In Smith v. Yellow Freight System, Inc., 91-STA-45
(ALJ Nov. 13, 1992), aff'd, (Sec'y Mar. 10, 1993), the
Respondent contended that the Complainant's complaint was not
timely. It was not disputed that the Complainant was actually
discharged within the 180 day filing period; however the
Respondent contended that earlier letters of discipline, which
warned of possible discharge, triggered the limitations period.
The ALJ concluded that the NLRB cases relied upon by the
Respondent, exemplified by Local Lodge No. 1424 v. NLRB,
362 U.S. 411 (1960) -- holding that where conduct occurring
within the limitations period is not patently an unfair labor
practice, a party may not rely on events falling outside the
limitations period to "cloak with illegality that which was
otherwise lawful" -- were not applicable to STAA
whistleblower proceedings. Specifically:
- the NLRB holdings were drawn from the NLRA's specific
purpose and history -- securing industrial peace -- while
the STAA whistleblower provision encourage employees to
report on noncompliance with safety regulations by
protecting them from retaliation.
- those holdings do not apply to time-barring provisions,
such as the STAA's, that merely bars a proceeding.
- there is case law interpreting the more closely
analogous time-barring provisions of similar federal
whistleblower statutes, such as English v. Whitfield,
858 F.2d 957 (4th Cir. 1988), holding that the period begins
to run from the time of the discriminatory act, that is,
only when the employee is given final and unequivocal notice
of an employment decision having delayed consequences.
The ALJ held that although the Complainant suspected that the
final letter with notice of hearing was issued with the intent to
discharge, the notice alone was not tantamount to actual
discharge.
The Secretary adopted the ALJ's holding as supported by
substantial evidence, and agreed with the ALJ's finding that the
complaint was timely filed. Smith v. Yellow Freight
System, Inc., 91-STA-45 (Sec'y Mar. 10, 1993).
[STAA Whistleblower Digest II B 2 d i]
JURISDICTION; NOT DEPENDENT ON TIMELINESS OF COMPLAINT
In Thissen v. Tri-Boro Construction Supplies, Inc., ARB No. 04-153, ALJ No. 2004-STA-35, slip op. at n.23 (ARB Dec. 16, 2005), the ALJ properly dismissed the complaint as not timely filed; the ALJ, however, wrongly stated that such a finding meant she had no "jurisdiction" to make a determination on the merits of the complaint. The STAA limitations period is not jurisdictional.
II.B.2.d.i. Equitable tolling
The 180-day limitation period is not jurisdictional, but rather,
is subject to waiver, estoppel, and equitable tolling. The
Secretary held, however, that it cannot casually ignore the
legislated statutory limitation, even if it may bar an otherwise
meritorious claim.
After being discharged, the Complainant filed a wrongful
discharge suit in federal court. Meanwhile, the 180-day
limitation period under the STAA expired. The Complainant
subsequently discovered the STAA remedy and argued that the
statutory period should be tolled. He argued that the employer
knew of the STAA cause of action and intended to use it as a
defense in the civil matter, but did not raise or disclose the
defense by the time of the expiration of the statutory period.
The Complainant asserted that the employer actively misled the
complainant and therefore, the period should be tolled. The ALJ
found, and the Secretary affirmed, that it had not been
established that counsel for the employer withheld any
information from the Complainant during the critical 180-day
period, and, in any event, it was not an employer's burden to
supply an employee's remedies. The Complainant's failure to show
that the employer withheld any information prevents any
contention, as a ground for equitable tolling, that the employer
actively misled the Complainant respecting the STAA cause of
action. Nixon v. Jupiter Chemical, Inc., 89-STA-3
(Sec'y Oct. 10, 1990).
[STAA Whistleblower Digest II B 2 d]
TIMELINESS OF COMPLAINT; WRONG FORUM GROUND FOR EQUITABLE TOLLING IS NOT AVAILABLE IN STAA CASES
In Hillis v. Knochel Brothers, Inc., ARB Nos. 03-136, 04-081 and 04-148, ALJ No. 2002-STA-50 (ARB Oct. 19, 2004), the Complainant filed complaints with several state agencies alleging that the Respondent wrongfully terminated his employment. By the time he filed a complaint with OSHA, however, more than 180 days had transpired after his discharge. The ALJ found that the Complainant was entitled to equitable tolling under the "precise statutory claim in the wrong forum" principle stated in School Dist. of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981). Following a hearing on the merits, the ALJ found that the Complainant had been wrongfully discharged. The ARB reversed:
Although this Board has been guided by Allentown, the STAA regulations cite filing with another agency as a circumstance not justifying equitable tolling:
[T]here are circumstances which will justify tolling of the 180-day period on the basis of recognized equitable principles or because of extenuating circumstances, e.g., where the employer has concealed or misled the employee regarding the grounds for discharge or other adverse action; or where the discrimination is in the nature of a continuing violation. The pendency of grievance-arbitration proceedings or filing with another agency are examples of circumstances which do not justify a tolling of the 180-day period.
29 C.F.R. § 1978.102(d)(3) (emphasis supplied). See, e.g., Hoff v. Mid-States Express, Inc., ARB No. 03-051, ALJ No. 2002-STA-6 (ARB May 27, 2004). Thus, to the extent that a STAA complainant requests equitable tolling because he filed in the wrong forum, Allentown is inapplicable. The ALJ erred by relying on Allentown to proceed to a hearing on the merits of Hillis's complaint. R. D. & O. at 12-14.
II.B.2.d.i. Equitable tolling for filing
administrative complaint
The STAA limitation period for filing an administrative complaint
may be subject to equitable tolling. 29 C.F.R. §
1978.102(d)(2); see Hicks v. Colonial Motor Freight Lines,
84-STA-20 (Sec'y Dec. 10, 1985), slip op. at 7-8; cf. Larry v.
The Detroit Edison Co., Inc., 86-ETA-32 (Sec'y June 29,
1991), slip op. at 11-19, aff'd, No. 91-3737 (6th Cir. Apr. 17,
1992). The regulations provide two examples of valid reasons for
equitable tolling:
- where the employer has concealed or misled the employee
regarding the grounds for discharge, or
- where the discrimination is in the nature of a
continuing violation.
29 C.F.R. § 1978.102(d)(3). Other recognized bases for
equitable tolling of the filing limitation in whistleblower cases
include whether "the plaintiff has in some extraordinary way
been prevented from asserting his rights, or ... raised the
precise statutory claim in issue but has mistakenly done so in
the wrong forum." School District of City of Allentown
v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981), quoting
Smith v. American President Lines, Ltd., 571 F.2d 102, 109
(2d Cir. 1978); Hicks, slip op. at 8.
Ellis v. Ray A. Schoppert Trucking, 92-STA-28
(Sec'y Sept. 23, 1992).
II.B.2.d.i. STAA 30-day period for filing objections to
preliminary findings
Under the STAA, upon issuance of the Assistant Secretary's
investigation findings and a preliminary order, any aggrieved
party "may, within thirty days, file objections to the
findings or preliminary order, or both, and request a hearing on
the record . . . . Where a hearing is not timely requested, the
preliminary order shall be deemed a final order which is not
subject to judicial review." 49 U.S.C. app. §
2305(c)(2)(A).
The STAA 30-day period for objecting to the Assistant Secretary's
investigation findings, however, is subject to equitable
modification. In reaching that conclusion the Secretary cited
prior decisions in which she had treated STAA and other
whistleblower filing provisions as statutes of limitation, and
federal case law treating analogous filing provisions as statutes
of limitation. She also cited the remedial purpose of section
405 of the STAA, the lack of emphatic language in section
405(c)(2)(A) which would normally be associated with a
jurisdictional filing period ("the person alleged to have
committed the violation or the complainant may, within thirty
days, file objections" (emphasis added)), and the
comparatively strict language of section 405(d) filing period for
review by the court of appeals ("[any] petition must be
filed within sixty days from the issuance of the Secretary of
Labor's order" (emphasis added)).
Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y
Aug. 5, 1992) (ALJ had concluded that he lacked jurisdiction
because the complainant had filed his objections out-of-
time).
II B 2 d ii Failure to post employee's rights under the
STAA and equitable tolling
Complainant argued that the 180-day limitation period should be
tolled because of the absence of a requirement under the STAA
that an employer post or ostherwise disseminate to its employees
information concerning their rights and protections under the
STAA. Although the ALJ found merit to the argument, he held
that, as with Title VII claims, failure to post notices does not
toll the prescriptive period. The Secretary affirmed the finding
in Nixon v. Jupiter Chemical, Inc., 89-STA-3 (Sec'y Oct.
10, 1990). Nixon v. Jupiter Chemical, Inc., 89-
STA-3 (ALJ July 16, 1990).
[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; COMPLAINANT'S NOTICE TO FMSCA THAT HE HAD BEEN FIRED IS INSUFFICIENT TO SUPPORT EQUITABLE TOLLING UNDER WRONG FORUM DOCTRINE
In Hoff v. Mid-States Express, Inc., ARB No. 03-051, ALJ No. 2002-STA-6 (ARB May 27, 2004), the Complainant had filed a complaint with the FMSCA alleging that his employer had violated federal motor carrier safety regulations. Several weeks later he was fired and he then contacted FMSCA to inform it about the termination of employment. About a year later FMSCA contacted the Complainant by letter to inform him that citations had been issued against the employer; however, Complainant learned at that time that FMSCA had only investigated under the Federal Motor Carrier Safety Act and had not investigated a STAA retaliation claim. The Complainant then filed a STAA complaint with OSHA. OSHA and the ALJ dismissed the complaint as untimely. An STAA complaint must be filed within 180 days after the alleged violation occurred, and the Complainant's OSHA complaint was more than a year after the alleged violation.
On appeal, the ARB agreed with the ALJ that equitable principles did not apply to toll the limitations period. Analyzing under the familiar School Dist. of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981) equitable tolling principles, the ARB found that the Complainant had not demonstrated that he raised "the precise statutory claim in issue" with the FMSCA, i.e., that he was discharged in retaliation for activity protected by the STAA. In addition he did not contend that the Respondent misled him into filing a STAA complaint in the wrong forum, or that there were any extraordinary circumstances that prevented him from filing in the correct forum.
[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF REQUEST FOR HEARING; OVER NINE MONTHS BETWEEN SECRETARY'S FINDINGS AND REQUEST
In Tavares v. Swift Transportation Co., Inc., ARB No. 01-036, ALJ No. 2001-STA-13 (ARB Oct. 2, 2001), Complainant filed his complaint over nine months after the most recent OSHA determination in a series of three complaints. The OSHA determination letters all provided a notice of the right to request a hearing within 30 days. Complainant argued that the time limit for filing a complaint should be excused because he was not properly served with the determination letters and because as a professional truck driver he is often away from home, as long as one and one-half months. Complainant, however, provided no proof of improper service. Moreover, the ARB found no error in the ALJ's conclusion that even if Complainant's occupation as a professional truck driver prevented him from filing his complaint in a timely fashion, it does not excuse his failure to file his written objections until nearly ten months after he received his most recent notice of findings from the Secretary.
[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; FAILURE OF EMPLOYER TO POST STAA WHISTLEBLOWER PROVISION OR TO MENTION IT IN THE DRIVER'S MANUAL
An employer's failure to post the STAA whistleblower provisions "does not amount to the kind of active misrepresentation that is required to invoke equitable tolling" of the period for filing a STAA complaint. Moreover, the fact that the STAA is not mentioned in the employer's driver's manual does not excuse a complainant's late filing. Tierney v. Sun-Re Cheese, Inc., ARB No. 00-052, ALJ No. 2000-STA-12 (ARB Mar. 22, 2001).
[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; WRONG FORUM
In Tierney v. Sun-Re Cheese, Inc., ARB No. 00-052, ALJ No. 2000-STA-12 (ARB Mar. 22, 2001), Complainant had filed a claim with the Pennsylvania Department of Labor and Industry, and contacted the Pennsylvania Human Relations Commission. This claim was filed within the 180-day STAA whistleblower filing period. The ARB found nothing in Complainant's pleadings or testimony, however, to demonstrate that he "'raised the precise statutory claim in issue' [before these agencies] -- i.e., a complaint that he was discharged in retaliation for activity protected by the STAA whistleblower provision." Accordingly, Complainant's contacts with Pennsylvania agencies were found not to toll the running of the STAA limitations period.
[STAA Digest II B 2 d ii]
EQUITABLE TOLLING; WRONG FORUM; COMPLAINANT REPRESENTED BY
COUNSEL
In Glasscock v. Alliant Foodservice, Inc., 1999-STA-44 (ALJ Jan. 13,
2000), Complainant filed his STAA complaint with the Oregon OSHA within the 180 day filing
period, but did not file his complaint with the Federal OSHA office until after the 180 days had
expired. The ALJ found that the regulation at 29 C.F.R. § 1978.102(c) (1999) requires a
filing with the federal OSHA office, and was not persuaded by Complainant's argument that the
Oregon OSHA is incorporated into the regulations. The ALJ also rejected equitable tolling based
on filing the precise statutory claim mistakenly in the wrong forum because Complainant had
been represented by counsel throughout. See Kent v. Barton Protective
Services, 1984-WPC-2, slip op. at 11-12 (Sec'y, Sept. 28, 1990), aff'd, Kent v. U.S.
Department of Labor, (11th Cir. 1991) (doctrine of equitable tolling is generally inapplicable
where a plaintiff is represented by counsel).
II B 2 d ii Tolling based on date complainant learned of
retaliatory motive; must be evidence that
Respondent concealed or mislead complainant
In Hatcher v. Complete Auto Transit, 94-STA-53
(Sec'y July 3, 1995), the Complainant filed his STAA complaint
341 days after termination of his employment and 463 days after
engaging in allegedly protected activity. The Complainant
alleged that he did not know that the protected activity was used
as a basis for the discharge until "much later." The
ALJ found the complaint timely because the Respondent did not
notify the Complainant that the incident that Complainant alleged
was protected was used against the Complainant to justify his
discharge.
The Secretary reversed the ALJ's finding, finding no basis for
equitable tolling of the 180-day filing period. The Secretary
noted that there was no requirement that an employer give notice
to the employee of each fact that might be considered in
rendering a discharge decision. Although the regulations
prohibit the employer from concealing or misleading the employee
regarding the basis for the discharge decision, there was no
evidence in the record on which to base a conclusion that the
Respondent concealed or mislead the Complainant in this
regard.
[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; FILING OF EEOC COMPLAINT DOES NOT JUSTIFY INVOCATION OF WRONG FORUM AS GROUND FOR EQUITABLE TOLLING
In Bedwell v. Spirit-Miller NE, LLC, ARB No. 07-038, ALJ No. 2007-STA-6 (ARB Oct. 31, 2007), the Complainant filed an untimely
complaint under the STAA, but sought equitable tolling because he had filed an EEOC Charge of Discrimination. The ARB found that the EEOC charge, however,
did not justify tolling. It did not constitute a complaint alleging that the Complainant's employer violated the STAA, but rather the pursuit of an alternative remedy with an agency
having jurisdiction to award relief under statutes other than the STAA.
[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING;
GRIEVANCE PROCEDURE
In Reeves v. Old Dominion Freight Line,
ARB No. 05-128, ALJ No. 2005-STA-34 (ARB Sept. 28, 2007), the Complainant
appealed his termination through the Respondent’s internal appeal process. His
later STAA whistleblower complaint was filed 248 days after his termination.
The Complainant argued that the filing period for his STAA complaint did not
begin to run until the date upon which the committee responsible for deciding
his internal appeal rendered a decision. The ARB rejected this argument,
citing the regulation at 29 C.F.R. § 1978.102(d)(3), and stating that “[t]he
plain language of the STAA precludes tolling of the limitations period during
the pendency of Reeves’s internal appeal of his termination.” Slip op. at 4
(footnote omitted).
[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING;
INCAPACITY MUST PREVENT, NOT MERELY HAMPER MANAGEMENT OF ONE'S AFFAIRS
In Reeves v. Old Dominion Freight Line,
ARB No. 05-128, ALJ No. 2005-STA-34 (ARB Sept. 28, 2007), the Complainant did
not file his complaint with 180 days of the date of his termination. On appeal
he contended that he was entitled to equitable tolling because he had been
incapacitated due to his treatment for Hepatitis C. The ARB found that the
Complainant had failed to establish that his medical condition was so severe
that it prevented him from pursuing his STAA complaint in a timely manner.
Rather, the Complainant had only contended that it had been “difficult” for him
to stay on top of his legal affairs. Moreover, the ARB noted that he had been
able to pursue an internal appeal process during the STAA limitations period.
[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; FILING OF
COMPLAINT WITH STATE OSHA AND DOT OFFICES RATHER THAN FEDERAL OSHA OFFICE;
WRONG FORUM GROUND FOR EQUITABLE TOLLING
In Miller v. Basic Drilling Co., ARB No. 05-011, ALJ No. 2005-STA-20 (ARB Aug. 30, 2007), OSHA had
dismissed the complaint as untimely. The Complainant sought a hearing, and the
assigned ALJ issued a Notice requiring the parties to address the timeliness
issue. The Complainant responded with the allegation that he had talked with
the Arizona OSHA (ADOSH) office about the circumstances leading to his
discharge, and was told he would be called back. He also alleged that he had
called an 800 number that he believed to be the general OSHA number, had called
the Arizona DOT (ADOT), and the Arizona public safety department. The ALJ
issued a recommended decision, finding that the verbal complaint to ADOSH was
within the 180 day STAA limitations period, but that contacts with ADOSH and
ADOT could not satisfy the STAA filing deadline because employees of those
agencies are not federal OSHA officials. Moreover, the ALJ found that the 800
number called by the Complainant was NIOSH’s number and not OSHA’s. The ARB found
that the ALJ erred because he had not specifically analyzed the matter under
the “wrong forum” ground for equitable tolling. The ARB remanded for the ALJ
to consider whether the Complainant’s contacts with the state agencies entitled
him to equitable tolling.
[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM; FILING WITH ANOTHER FORUM IN PURSUIT OF REMEDIES OTHER THAN THE STAA DOES NOT SUPPORT EQUITABLE TOLLING; HOWEVER, FILING A STAA COMPLAINT WITH THE WRONG FORUM MIGHT
In Hillis v. Knochel Brothers, Inc. , ARB No. 03-136, ALJ No. 2002-STA-50 (ARB Mar. 31, 2006), PDF the ARB held that the reference in the STAA regulation at 29 C.F.R. § 1978.102(d)(3) to "filing with another agency" as an example of a circumstance that does not justify equitable tolling of the 180-day period for filing a STAA whistleblower complaint does not preclude tolling of the limitations period when a complainant has filed a STAA complaint in the wrong forum. The ARB reviewed the regulatory history of this regulation, and found that "'filing with another agency' refers to the proceedings initiated in the pursuit of remedies created by statutes or regulations other than the STAA." USDOL/OALJ Reporter at 7.
[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM; MERELY MAKING PHONE CALLS TO STATE AGENCIES IS NOT THE FILING OF A COMPLAINT
In Hillis v. Knochel Brothers, Inc. , ARB No. 03-136, ALJ No. 2002-STA-50 (ARB Mar. 31, 2006), PDF the ARB held that telephone calls to state agencies in which the Complainant's name was not taken down nor a report generated, and in which the agencies informed the caller that they did not have jurisdiction to receive the complaint, did not constitute the filing of a claim. Therefore, the "precise statutory claim mistakenly filed in the wrong forum" ground for equitable tolling did not apply to relieve the Complainant from the 180-day limitations period for filing a STAA whistleblower complaint.
[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM; CLOCK IS STOPPED ONLY FOR THE PERIOD IN WHICH COMPLAINANT WAS UNAWARE THAT THE COMPLAINT HAD BEEN FILED IN THE WRONG FORUM
In Hillis v. Knochel Brothers, Inc. , ARB No. 03-136, ALJ No. 2002-STA-50 (ARB Mar. 31, 2006), PDF the Complainant and/or his wife called a number of state agencies prior to filing his untimely STAA complaint with OSHA. The ARB held that such calls, standing alone, did not constitute the filing of a claim in the wrong forum to support equitable tolling of the STAA limitations period. However, assuming arguendo that they were filings of the precise claim mistakenly filed in the wrong forum, the complaint was still untimely because the Complainant did not file timely with OSHA after learning that the places he called did not have jurisdiction over STAA whistleblower complaints. Tolling only stops the clock only during the period in which the complainant was unaware that the complaint had been filed in the wrong forum.
[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF REQUEST FOR ALJ HEARING; EQUITABLE TOLLING
In Thissen v. Tri-Boro Construction Supplies, Inc., ARB No. 04-153, ALJ No. 2004-STA-35 (ARB Dec. 16, 2005), the Complainant's request for an ALJ hearing was not received by OALJ within 30 days after the OSHA finding because the mailing envelope had been misaddressed (1800 K St. instead of 800 K St.). The ALJ applied equitable tolling to find that the request for a hearing was timely filed because of proof that the request had been timely mailed but to the wrong address, and because of proof that the Complainant was diligent in following up once he became aware that OALJ had not received his objection. The ARB found that substantial evidence supported these findings and that, as a matter of law, the appeal was properly before the ALJ.
[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; FILING A COMPLAINT WITH ANOTHER AGENCY IS NOT A CIRCUMSTANCE JUSTIFYING EQUITABLE TOLLING
Although the grounds for equitable tolling found in School Dist. of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981), are consistent with the STAA regulation at 29 C.F.R. § 1978.102(d)(3), filing a complaint "with another agency" is not a circumstance justifying equitable tolling. Thissen v. Tri-Boro Construction Supplies, Inc., ARB No. 04-153, ALJ No. 2004-STA-35, slip op. at n.21 (ARB Dec. 16, 2005).
[Editor's note: See Hillis v. Knochel Brothers, Inc., ARB Nos. 03-136, 04-081, 04-148, ALJ No. 2002-STA-50, slip op. at 2-3 (ARB Dec. 12, 2005), an Order Requesting briefing by OSHA, Complainant and Intervenor on the issue of whether Allentown does not apply to wrong forum grounds for equitable tolling in STAA cases).]
[STAA Whistleblower Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; ARB TO RECONSIDER ITS FINDING THAT THE "WRONG FORUM" EXCEPTION DOES NOT APPLY UNDER THE STAA REGULATIONS
In Hillis v. Knochel Brothers, Inc., ARB Nos. 03-136, 04-081, 04-148, ALJ No. 2002-STA-50 (ARB Oct. 19, 2004), the ARB dismissed the complaint as untimely filed. In considering whether equitable tolling applied, the Board held that "[A]lthough this Board has been guided by Allentown [v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981)], the STAA regulations [at 29 C.F.R. § 1978.103(d)(3)] cite filing with another agency as a circumstance not justifying equitable tolling. . . . Thus, to the extent that a STAA complainant requests equitable tolling because he filed in the wrong forum, Allentown is inapplicable. The ALJ erred by relying on Allentown to proceed to a hearing on the merits of Hillis's complaint." Slip op. at 3 (citations omitted). The Complainant appealed to the Ninth Circuit, Hillis v. U.S. Dept. of Labor, No. 05-70041; the ARB, however, filed an unopposed motion for remand to reconsider its interpretation of section 1978.102(d)(3) "in light of that provision's regulatory history." Hillis v. Knochel Brothers, Inc., ARB Nos. 03-136, 04-081, 04-148, ALJ No. 2002-STA-50, slip op. at 2-3 (ARB Dec. 12, 2005) (Order Requesting briefing by OSHA, Complainant and Intervenor).
II.B.2.d.ii. Ignorance of
filing period
Where it appeared that the complainant did not timely file his
STAA complainant because he did not know that he had the right to
file a complaint with the Department of Labor, his ignorance of
the law was not a sufficient reason to toll the limitation.
Lewis v. McKenzie Tank Lines, Inc., 92-STA-20
(Sec'y Nov. 24, 1992).
II.B.2.d.ii. Tolling while pending before grievance
panel
In Rezac v. Roadway Express, Inc., 85-STA-4 (Sec'y
June 5, 1985), Complainant contended that his STAA whistleblower
complaint was timely where it was not filed within 180 days of
his firing, but within 180 days of the decision of a grievance
panel. It was undisputed that Complainant's discharge was not
suspended during the grievance procedure.
The Secretary found no statutory language or legislative history
to indicate that the STAA limitations period should be tolled
during the pendency of a grievance procedures, and noted that no
tolling is consistent with the holdings of Federal courts under
other employee discrimination statutes. See International
Union of Electrical, Radio and Machine Workers, 429 U.S. 229
(1976) (Title VII); Roddy v. Shong, 33 FEP Cases 1399
(N.D. Ohio 1983) (Rehabilitation Act of 1973, 29 U.S.C. §
793; Vietnam Era Veteran's Readjustment Assistance Act of 1974,
38 U.S.C. § 2012). The employee protection provision of the
STAA is independent of any remedy under a collective bargaining
agreement.
Complainant argued that he relied on Federal authorities in
believing that the limitations period began from the termination
of the grievance procedure. The Secretary found this ground
inadequate for application of equitable tolling: the grievance
procedure did not prevent an assertion of rights under the STAA,
and the decision of the arbitration panel was issued more than
four months before the expiration of the period for filing a
complaint under the STAA.
Complainant also argued that since OSHA regulations permit a
tolling of the limitations period for the filing of
discrimination complaint where the employee "resorted in
good faith to grievance arbitration proceedings under a
collective bargaining agreement," 29 C.F.R. §
1977.15(d)(3), tolling should be permitted under the STAA in the
same circumstances. The Secretary rejected this argument,
finding that the Supreme Court's opinion in Electrical
Workers was more persuasive than the existence of a tolling
provision in the OSHA regulations.
II.B.2.d.ii. Equitable tolling; belief DOT would pursue
STAA whistleblower relief
In Reemsnyder v. Mayflower Transit, Inc., 93-STA-4
(ALJ Nov. 12, 1993), the ALJ accepted Complainant's credible and
uncontradicted testimony that he had first contacted OSHA with
his complaint in July by telephone rather than on October 21(the
first OSHA document recording a contact). The record contained a
letter from a United States Senator dated October 11 referring to
Complainant's earlier complaint. The final day of the 180 day
filing period was October 15.
The ALJ noted that the regulations do not require any particular
form of complaint, and concluded that both Complainant's initial
contact and the Senator's letter, both were sufficient to
constitute timely complaints.
The ALJ indicated that he would also invoke equitable tolling for
the six days until the first recorded OSHA contact based on
Complainant's mistaken belief that DOT would also pursue the
section 2305 claim if it substantiated his allegations of safety
violations.
II.B.2.d.ii. STAA 30-day period for filing objections
to preliminary findings; equitable
modification
A limitations period may be tolled where
- a claimant has received inadequate notice;
- a motion for appointment of counsel is pending and
equity would justify tolling the statutory period until the
motion is acted on;
- the court has led the plaintiff to believe that she had
done everything required;
- affirmative misconduct on the part of a defendant lulled
the plaintiff into inaction;
- a claimant actively has pursued his judicial remedies by
filing a defective pleading during the statutory
period.
Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y
Aug. 5, 1992), citing Baldwin County Welcome Center v.
Brown, 466 U.S. 147, 151 (1984) (per curiam); Irwin v.
Veterans Administration, __ U.S. __, 112 L.Ed.2d 435, at 444
and n.3 (1990).
II.B.2.d.ii. Circumstances justifying equitable
tolling; STAA complaint
In Spearman v. Roadway Express, Inc., 92-STA-1
(Sec'y Aug. 5, 1992), the Secretary found that, under the
circumstances (see headnote at II.B.2.b.), complainant's letter
requesting an extension of time to file objections to the
preliminary findings of the Assistant Secretary to be a timely
objection. Assuming arguendo that it was not, however, she also
found that fairness requires tolling of the time limitation,
where
- Complainant had diligently pursued his claim by timely
seeking enlargement of the filing period while assembling
documentation to substantiate his objections;
- Complainant had not received notice of the complete
service requirement (resulting in his not serving respondent
with the initial request for an extension);
- Respondent suffered no prejudice. It received notice of
the request within a few weeks of the request, and because
of the extension, respondent was benefited by complainant's
filing of a more complete statement of his contentions and
proof early in the proceedings than is required under the
regulations;
- By docketing the case and extending the filing period,
OALJ fostered complainant's belief that he was proceeding
in compliance with the regulations.
II.B.2.d.ii. Ignorance of filing period
Where it appeared that the complainant did not timely file his
STAA complainant because he did not know that he had the right to
file a complaint with the Department of Labor, his ignorance of
the law was not a sufficient reason to toll the limitation.
Lewis v. McKenzie Tank Lines, Inc., 92-STA-20
(Sec'y Nov. 24, 1992).
II.B.2.d.ii. Wrong forum; equitable
tolling
After filing a wrongful discharge action in federal district
court, and after expiration of the 180-day period of limitation
in STAA claims, the Complainant sought to file his STAA claim and
have the period tolled. He argued for equitable tolling because
he brought the identical claim in the wrong forum. The ALJ
found, however that the present claim is separate and distinct
from the wrongful discharge action brought in federal court. The
former is a statutory claim established as part of a regulatory
scheme of the trucking industry. The latter is a common law
action founded in contract. The ALJ found that the filing of the
latter did not give the employer notice of the statutory claim
asserted against it in this forum, and thus, did not warrant
tolling of the statutory period. The Secretary affirmed the
finding in Nixon v. Jupiter Chemical, Inc., 89-STA-3
(Sec'y Oct. 10, 1990). Nixon v. Jupiter Chemical,
Inc., 89-STA-3 (ALJ July 16, 1990).
II.B.2.d.ii. Claim filed in state court
In Peoples v. Brigadier Homes, Inc., 87-STA-30
(Sec'y June 16, 1988), Complainant filed his complaint 550 days
after the alleged violation. The ALJ concluded that the
complaint was timely since Complainant had filed an unlawful
termination action in the Alabama Circuit Court with 180 days of
his termination. According to the ALJ, this action tolled the
STAA limitations period pursuant to 29 C.F.R. Section
1978.102(d)(3) (1987) of the regulations (pendency of grievance-
arbitration proceedings or filing with another agency). Upon
review of the record, however, the Secretary determined that the
ALJ erred in his finding that the state court suit involved the
same cause of action, since the only sources of information as to
the state action came for assertions made by Complainant's
counsel which did not constitute evidence. U.S. v.
Johnson, 713 F.2d 633, 651 (11th Cir. 1983). In conclusion,
the Secretary determined that the Complainant's claim was not
timely.
II.B.2.d.ii. Wrong forum
Where the complainant filed a charge of discrimination with the
Equal Employment Opportunity Commission claiming that the
respondent violated the Age Discrimination in Employment Act by
firing him for a safety-related refusal to drive whereas the
respondent did not fire other, younger employees who acted
similarly, the EEOC complaint was not asserted under the STAA and
thus did not fall within the limited exception allowing equitable
tolling of the STAA limitation period where the complainant
timely raises the precise claim in issues but mistakenly did so
in the wrong forum. Moreover, as recognized in Kelly v. Flav-
O-Rich, Inc., 90-STA-14 (Sec'y May 22, 1991), slip op. at 2,
the STAA regulation provides that "filing with another
agency" is an example "of circumstances which do not
justify a tolling of the 180-day period." 29 C.F.R. §
1978.102(d)(3) (emphasis supplied).
Lewis v. McKenzie Tank Lines, Inc., 92-STA-20
(Sec'y Nov. 24, 1992).
II.B.2.d.ii. Ill health as ground for equitable
tolling
In cases analogous to the whistleblower provision of the STAA
under Title VII and the ADEA, see School Dist. of City of
Allentown, 657 F.2d 16, 19 (3d Cir. 1981), the courts have
declined to allow equitable tolling for reasons of ill health
unless the plaintiff has been adjudicated, or institutionalized,
as mentally incompetent. Steward v. Holiday Inn, Inc.,
609 F. Supp. 1468, 40 FEP Cases 191, 192 (E.D. La. 1985)
(physical and mental incapacity are not an additional category
for tolling time limitation); Kerver v. Exxon Prod. Research
Co., 40 FEP Cases 1567, 1568 (S.D. Tex. 1986) (no tolling due
to plaintiff's psychological impairment resulting from job loss),
aff'd, 810 F.2d 196 (5th Cir. 1987); compare Bassett v.
Sterling Drug, Inc., 578 F. Supp. 1244, 35 FEP Cases 382, 385
(S.D. Ohio 1984), appeal dismissed, 770 F.2d 165 (6th Cir.
1985) (ADEA time limitation may be tolled during period of
adjudication or institutionalization as mentally incompetent).
Thus, in Ellis v. Ray A. Schoppert Trucking, 92-
STA-28 (Sec'y Sept. 23, 1992), a complainant's bare assertion
that he could not timely file his STAA complaint because he had
been under extreme duress, on medication for spinal stenosis, a
collapsed disc, and spinal obstruction, and had suffered a severe
memory loss in the months after being discharged, did not provide
sufficient grounds for equitable tolling. The complainant did
not allege that he was mentally incompetent because of his ill
health, and he could have had someone (either a lay person or
attorney) file a complaint on his behalf.
II B 2 e Continuing violation
theory; what acts are
sufficiently related
In
Flor v. United States Department of Energy, 93-
TSC-1 (Sec'y Dec. 9, 1994),the Secretary found that the
Complainant had filed a timely STAA complaint, and that one of
the alleged adverse acts that occurred outside the STAA time
limit for filing was nonetheless timely under the continuing
violation theory.
The Secretary noted that in analogous ERA cases, the timeliness
of a claim may be preserved under the continuing violation theory
"where there is an allegation of a course of related
discriminatory conduct and the charge is filed within thirty days
of the last discriminatory act." For guidance concerning
whether alleged discriminatory acts are sufficiently
"related" to constitute a course of discriminatory
conduct, the Secretary has turned to a case under Title VII of
the Civil Rights Act of 1964, Berry v. Board of Supervisors of
L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), cert.
denied, 479 U.S. 868 (1986). The Berry court listed
three factors: (1) whether the alleged acts involve the same
subject matter, (2) whether the alleged acts are recurring or
more in the nature of isolated decisions, and (3) the degree of
permanence. 715 F.2d at 981. Concerning the degree of
permanence, in English v. Whitfield, 858 F.2d 957, 962
(4th Cir. 1988), the Court of Appeals held that an ERA
complainant must file the complaint within the prescribed 30 days
after an alleged discriminatory act if the employer's notice
concerning that act was sufficiently "final and
unequivocal" in form.
In the instant case, an initial interview concerning an
investigation into the Complainant's security clearance occurred
more than 180 days prior to the filing of the complaint. The
Secretary, found, however, that the initial interview was not a
permanent, final action, and that final action did not occur
until six months later when the Respondent suspended the
Complainant's security clearance. Applying Berry and
English, the Secretary found that the interview and the
investigation into the Complainant's security clearance involved
the same subject matter and were closely connected to suspension
of the clearance, an action about which the Complainant timely
complained under the STAA.
[Editor's note: The ALJ had considered the
complaint to be primarily a TSCA complaint, and did not discuss
the timeliness of a STAA complaint. See Flor v. United States
Dept. of Energy, 93-TSC-1 (ALJ Mar. 26, 1993), slip op. at
n.1. The Secretary found the existence of a STAA complaint
through a liberal interpretation of the complaint.]
TIMELINESS; CONTINUING VIOLATION; DISCRIMINATORY
ASSIGNMENTS
[STAA Digest II B 2 e]
Although the Complainant's complaint was filed more than 180
days after his work refusal, the Secretary held in Cook v. Guardian Lubricants,
Inc., 95-STA-43 (Sec'y May 1, 1996), that the
continuing violation doctrine made the complaint timely under the
STAA employee protection provision because the Complainant was
given discriminatory assignments in retaliation for his raising
complaints about overweight shipments. Those assignments were
less profitable, and directly contributed to the Respondent's
eventual termination of Complainant's employment because the
truck was not being kept sufficiently busy.
TIMELINESS; CONTINUING VIOLATION; PERFORMANCE RATING
GENERALLY CONSIDERED A DISCRETE ACT
[STAA Digest II B 2 e]
A poor performance rating generally is a discrete act which
has the degree of permanence which should trigger an employee's
awareness of and duty to assert his or her rights, or which
should indicate to the employee that the continued existence of
the adverse consequences of the act is to be expected without
being dependent on a continuing intent to discriminate. In
Diaz-Robainas v. Florida Power & Light Co., 92-
ERA-10 (Sec'y Jan. 10, 1996), several of the Complainant's
complaints about performance appraisals were found to be
untimely, and not cognizable under a continuing violation theory.
Nonetheless, the Secretary noted that they were evidence to
consider when assessing the true character of other matters
occurring within the limitations period.
II B 2 e Summary decision; discovery must be permitted
to allow Complainant to establish link for
purposes of continuing violation theory
In
Flor v. United States Department of Energy, 93-
TSC-1 (Sec'y Dec. 9, 1994), the ALJ had recommended dismissal
based on his finding that the complaint was not timely filed.
The Secretary, however, found that the Complainant had asserted a
timely, related STAA complaint. In addition, the Complainant had
asserted a continuing violation theory as to certain acts
occurring outside the STAA filing period. The Complainant had
filed discovery regarding those acts, to which the Respondent had
not responded prior to the issuance of the ALJ's recommended
order. Because the discovery may have provided a link between
those acts and the act timely complained of, the Secretary
remanded the case to the ALJ to permit the Complainant to obtain
discovery. The Secretary noted that under Berry v. Board of
Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983),
cert. denied, 479 U.S. 868 (1986), the trial judge should
make a fact specific inquiry in cases where the plaintiff alleges
a continuing violation.
In addition, the Secretary directed the ALJ to consider on remand
whether, under the continuing violation theory, the complaint was
timely under other alleged environmental whistleblower provisions
as to the other acts that occurred more than 30 days prior to
filing the complaint. This was important because the Complainant
had alleged a TSCA violation, that provides an additional remedy
of exemplary damages not provided by the STAA.
II B 3 Complaint to be construed
liberally as to whether cause
of action stated
In Vogt v. Atlas Tours, Ltd., 94-STA-1 (Sec'y Apr.
19, 1994), the ALJ had granted Respondent's motion to dismiss
based on the contention that complainant had failed to plead a
violation of the employee protection provision of the STAA. The
Secretary held that Complainant, being pro se, would not be held
to the same standards for pleading as if represented by legal
counsel. The Secretary examined Complainant's complaint, and
construing it liberally; found that it stated a complaint under
both the "when" and "because" clauses of the
STAA.
[STAA Whistleblower Digest II B 3]
TIMELINESS OF COMPLAINT; OSHA RESPONSE TO VERBAL COMPLAINT
In Harrison v. Roadway Express, Inc., 1999-STA-37 (ALJ Dec. 16,
1999), Complainant visited an OSHA office within the statutory period for filing a STAA
complaint and made an oral complaint. The OSHA official told Complainant that the complaint
would not be accepted prior to the exhaustion of CBA grievance-arbitration procedures.
Respondent argued that Complainant's visit failed to satisfy the requirements for filing a
complaint that OSHA had failed to follow procedures set forth in its Investigator's Manual.
The ALJ rejected this argument, finding that Complainant had done everything required to file a
complaint. Respondent also complained that it was not put on notice that the allegations of
discrimination were made; the ALJ, however, framed the issue as whether Respondent had
sufficient notice to prepare for the formal hearing before the ALJ, and concluded that it clearly
had.
[STAA Digest II B 3]
FORM OF COMPLAINT; LETTER TO SENATOR
In Ass't Sec'y & Ferguson v. K & P,
Inc., 96-STA-17 (ARB Oct. 30,
1996), the Board held that a letter from Complainant Ferguson on behalf of himself and another
complainant to Senator Nunn met the requirements of 29 C.F.R. § 1978.102.
II. B. 3. Complainant not to be treated as formal legal
pleading
When OSHA's determination stated that the substance of the
Complainant's complaint was that he was forced to drive while
fatigued (a section 405(b) claim) but did not refer to
retaliation, but the complaint itself clearly made out a section
405(a) claim, and when the Complainant had filed prehearing
responses indicating a section 405(a) violation, and when during
depositions prior to the hearing the Complainant referred to
section 405(a) type claims, and when the transcript of the
hearing indicated that the Respondent was not taken by surprise
by the section 405(a) claim, was prepared to defend both 405(a)
and (b) claims, and in fact did so, there was adequate notice of
the 405(a) claim. This is in distinction to Yellow Freight v.
Martin, 954 F.2d 353 (6th Cir. 1992), in which the notice letter
from OSHA referred only to section 405(b) issues, the driver's
actual complaint referred only to section 405(b), and there were
only small fragments of testimony in a large transcript that
could be considered related to section 405(a).
Yellow Freight System, Inc. v. Reich, No. 93-3488
(6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS
15585).
II.B.3. Complaint not a formal pleading
A complainant's initial charge is not a formal pleading setting
forth legal causes of action which may serve to limit a suit.
Richter v. Baldwin Associates, 84-ERA-9 (Sec'y Mar. 12,
1986), slip op. at 9-11. Its purpose is merely to initiate an
investigation. A complainant may not have consulted counsel
before filing with an agency and may be ignorant of applicable
law or of precisely "what constitutes the violation; all the
complainant knows is that some adverse action was unfairly taken
against him or her." Id. at 10. Upon challenging
the investigation findings of the Assistant Secretary of Labor
for Occupational Safety & Health, a complainant is accorded
an opportunity for de novo hearing of his complaint. 29 C.F.R.
§ 1978.106.
Smith v. Yellow Freight System, Inc., 91-STA-45
(Sec'y Mar. 10, 1993), slip op. at 15 n.11.
II.B.3. Litigation of issue litigated not specified in
the complaint
Where the complaint did not expressly allege a violation of STAA
section 405(a), but the complaint had obvious correlation with
protected activity under that section and the de novo STAA
hearing before the ALJ unmistakably including testimony on that
issue, and where the ALJ identified the issue in the recommended
Decision and Order and the Respondent did not brief the issue
before the Secretary, the Secretary concluded that the Respondent
had not been denied timely notice of the section 405(a) aspect of
the complaint. Moyer v. Yellow Freight System,
Inc., 89-STA-7 (Sec'y Sept. 27, 1990) (order denying
motion to vacate and reopen).
On review by the Sixth Circuit, the court found that the
Secretary had not given adequate notice of a possible section
405(a) issue prior to the hearing. Further, although recognizing
that implied consent to litigate an issue may be found where the
parties understood evidence presented at a hearing was aimed at
an unpleaded issue (something more than inadvertence or evidence
relevant both to pleaded and unpleaded issues), the court found
that in the instant case there was insufficient evidence to
conclude that the Respondent had impliedly consented to litigate
the section 405(a) issue. The court, therefore, refused to
enforce the Secretary's order and remanded the case. On remand,
the Secretary was given the option of re-examining the section
405(a) issue after giving the Respondent proper notice and full
and fair opportunity to respond. Yellow Freight System,
Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).
The Secretary remanded the case to the ALJ for further
proceedings. Moyer v. Yellow Freight System, Inc.,
89-STA-7 (Sec'y Mar. 13, 1992) (order of remand). On remand, the
ALJ conducted a supplemental hearing, but concluded that a
section 405(a) issue was not actually present. Moyer v.
Yellow Freight System, Inc., 89-STA-7 (ALJ May 24,
1993).
II. B. 3. Complaint not to be treated as formal legal
pleading
In determining whether a complainant's complaint states a
violation within the jurisdiction of the Department of Labor
under the employee protection provision of the STAA, a pro se
complainant will not be held to the same standards for pleading
as if he or she were represented by counsel. In Vogt v.
Atlas Tours, Ltd., 94-STA-1 (Sec'y Apr. 19, 1994), the
Complainant complained to a DOL employee, who wrote on a
form:
Mr. Vogt drove tour bus load of people and took them to
Anchorage airport - finished at 1:30 a.m. - received call
from manager requesting he take a group out to Palmer. AK
at 7:30 a.m. (same day). Mr. Vogt refused on the basis of
not having 8 hour rest period. (He believes 8 hour rest is
a DOT requirement).) He was fired that evening.
The Secretary held that the Complainant may have complained about
being dispatched to drive without having had enough rest, which
could be a way of stating he was too fatigued to take the
dispatch. This may constitute protected activity under the
"when" and "because" clauses.
In addition, in the request for hearing, the Complainant
stated:
After being up for 18 hours (not all of it on duty or
driving), the law appears to be blind . . . .
* * *
The law dictates that the "on duty" or
"driving" can be stretched over an infinite period
of time (in my situation it would have been 31-33
hours).
Based on the complaint and the hearing request, the Secretary
found that the Complainant had stated a complaint under both the
"when" and "because" clauses. See 49
C.F.R. § 392.3 (prohibiting driving in a fatigued
condition).
Thus, the ALJ erred in recommending dismissal for lack of subject
matter jurisdiction; the case was remanded for a hearing on the
merits.
II. B. 3. Complainant not to be treated as formal legal
pleading
When OSHA's determination stated that the substance of the
Complainant's complaint was that he was forced to drive while
fatigued (a section 405(b) claim) but did not refer to
retaliation, but the complaint itself clearly made out a section
405(a) claim, and when the Complainant had filed prehearing
responses indicating a section 405(a) violation, and when during
depositions prior to the hearing the Complainant referred to
section 405(a) type claims, and when the transcript of the
hearing indicated that the Respondent was not taken by surprise
by the section 405(a) claim, was prepared to defend both 405(a)
and (b) claims, and in fact did so, there was adequate notice of
the 405(a) claim. This is in distinction to Yellow Freight v.
Martin, 954 F.2d 353 (6th Cir. 1992), in which the notice letter
from OSHA referred only to section 405(b) issues, the driver's
actual complaint referred only to section 405(b), and there were
only small fragments of testimony in a large transcript that
could be considered related to section 405(a).
Yellow Freight System, Inc. v. Reich, No. 93-3488
(6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS
15585).
II B 3 Liberal interpretation of pro se complaint
In
Flor v. United States Department of Energy, 93-
TSC-1 (Sec'y Dec. 9, 1994), the Secretary concluded that it was
appropriate to interpret a pro se complaint as stating a possible
STAA whistleblower complaint, where the Complainant, a scientist
whose duties including approving work that intelligence
communities wished to have performed at two national
laboratories, alleged that she disapproved an intelligence
community project at the Los Alamos laboratory involving a
"highly toxic chemical" because, among other
reasons:
the [statement of work] specified that a [Los
Alamos National Laboratory] employee could obtain the
chemical in the Washington, D.C. area and carry it to
Los Alamos, New Mexico. I had reason to believe that
Department of Transportation regulations would be
violated.
Although, the complaint did not state the means of transporting
the toxic chemical, since the Department of Transportation's
safety regulations govern transportation of hazardous materials
by commercial motor carriers, 49 C.F.R. Part 397, the Secretary
found that the Complainant may have stated a complaint under the
STAA.
II.B.3. Complaint not to be construed as formal legal
pleading
A complainant's initial charge is not a formal pleading setting
forth legal causes of action which may serve to limit a suit.
See Richter v. Baldwin Associates, 84-ERA-9 et seq. (Sec'y
Mar. 12, 1986), slip op. at 9-11. Its purpose merely is to
initiate an investigation. A complainant may not have consulted
counsel before filing with an agency and may be ignorant of
applicable law or of precisely "what constitutes the
violation; all the complainant knows is that some adverse action
was unfairly taken against him or her." Id. at 10.
Thus, the ALJ erred in limiting discovery to complainant's claims
apparently recorded by the OSHA investigator.
Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y
Aug. 5, 1992) (order vacating procedural order and directing
reassignment).
II B 4 Underlying violation must
involve commercial motor vehicle safety
In Foley v. J.C. Maxxwell, Inc., 95-STA-11 (Sec'y
July 3, 1995), the Complainant alleged that he was fired because
he filed a complaint with OSHA concerning exposure to asphalt
fumes, and failed to report to work as directed. The Secretary
concluded that the Complainant had not engaged in protected
activity under STAA, 49 U.S.C. § 31105(a)(1), which involves
commercial motor vehicle safety, but alleged only a potential
OSHA violation.
[STAA Digest II B 4]
JURISDICTION; COMPLAINT ABOUT SAFETY ISSUE NOT RAISING MOTOR
VEHICLE SAFETY
In Greenhorn v. Arrow Stage
Lines,1997-STA-18 (ALJ Apr. 23, 1998),
the ALJ concluded that Complainant's complaint to OSHA about an uncovered oil pit in the floor
of Respondent's maintenance area does not qualify as a protected activity under the STAA, as it
did not arise under a motor vehicle safety regulation. On review by the ARB,
Greenhorn v. Arrow Stage
Lines,1997-STA-18 (ARB Aug. 20, 1998),
Complainant argued that the ALJ erred in not accepting the Secretary's preliminary finding of
jurisdiction over the oil pit complaint. The ARB noted that the ALJ conducts a de novo
hearing and that the preliminary findings are not accorded any weight. The ARB agreed with the
ALJ that the report of an uncovered oil pit is not a STAA violation, even if it may be actionable
under other statutes.
II B 4 COMPLAINT; LITIGATION OF ISSUES NOT STATED IN ORIGINAL
COMPLAINT
In Brown v. Wilson Trucking Corp., 94-STA-54
(ALJ Oct. 2, 1995), the ALJ rejected the Respondent's contention
that the hearing should be limited to the one issue stated in the
original complaint. The Regional Administrator's report
indicated that multiple issues had been considered as part of the
investigation, which gave the Respondent adequate notice. The
ALJ also noted that due process is not offended if the parties
fairly and fully litigated the issue at a hearing.
II.C.1. Prosecution of STAA complaint;
DOL not obligated
The Department of Labor is not obliged to prosecute the case on
behalf of a complainant under the STAA. See 29 C.F.R.
§§ 18.34(f), 1978.103(a), 1978.107(b). Flener v.
H.K. Cupp, Inc., 90-STA-42 (Sec'y Oct. 10, 1991).
II.C.2. Deferral to arbitration by
Secretary; complainant may
continue to litigate
It is permissible for a complainant in a STAA proceeding to
continue litigating after the Secretary has deferred to an
arbitration outcome. Under the STAA, the complainant can
prosecute its complaint regardless of whether the Secretary
chooses to do so. 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).
II.C.3. Right of Assistant Secretary to
file a brief in STAA proceeding
where complainant objected to
determination
The Office of the Solicitor, Occupational Safety and Health
Division, is authorized to litigate cases arising under statutes
enforced by the Assistant Secretary. 55 Fed. Reg. 9,033 (Mar. 9,
1990) (par. 5(b)).
Where the Assistant Secretary had earlier deferred to an
arbitration proceeding adverse to the complainant, but before the
Secretary argued that the earlier deferral had been
"premature and inappropriate" and that intervention was
now warranted and that it ratified the filing of a brief in his
behalf by the Solicitor, the brief would be considered despite
respondent's objection that the brief was ultra vires. The
Secretary cited 29 C.F.R. § 1978.107(b): "The
Assistant Secretary may as of right intervene as a party at any
time in [STAA] proceedings . . . ."
Spinner v. Yellow Freight System, Inc., 90-STA-17
(Sec'y May 6, 1992) (order denying motion to strike brief, to
disqualify ALJ and strike decisions, and to dismiss
proceeding).
[STAA Digest II D 1]
AMENDMENT OF COMPLAINT; POST-HEARING REFUSAL TO WORK COMPLAINT DOES NOT RELATE BACK TO A CLAIM UNDER THE COMPLAINT CLAUSE OF THE STAA
In Bethea v. Wallace Trucking Co., ARB No. 07-057, ALJ No. 2006-STA-23 (ARB Dec. 31, 2007), the Complainant's complaint had asserted protected activity in the raising of concerns about hours of service violations, a fuel leak, and the filing of a workers' compensation claim. During the hearing, the ALJ concluded that accusations of pressure to falsify were within the scope of the complaint, and therefore a permissible amendment to the complaint. The ALJ found, however, that the Complainant's post-hearing complaints about refusing to work were not within the scope of the original complaint, and were untimely raised. On appeal, the ARB noted that it had ruled that a claim for refusing to work under the STAA does not relate back to a claim under the complaint prong of the STAA, and affirmed the ALJ's finding that the refusal to work accusation was not timely.
[STAA Digest II D 1]
AMENDMENT OF COMPLAINT TO INVOKE ADDITIONAL WHISTLEBLOWER PROTECTION LAW; OSHA INVESTIGATION IS A PREREQUISITE
In Coates v. Southeast Milk, Inc., ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the ARB affirmed the ALJ's denial of the Complainant's motion to amend his whistleblower complaint, which had been filed under the STAA, to invoke the protection of the TSCA because his criticisms of the Respondent included a charge that it had polluted ground water by dumping spoiled milk. The ARB indicated that such a complaint must first be filed with and investigated by OSHA as a prerequisite for a hearing and subsequent appeal.
[STAA Whistleblower Digest II D 1]
TRIAL OF ISSUE BY IMPLIED CONSENT
In Roberts v. Marshall Durbin Co., ARB Nos. 03-071 and 03-095, ALJ No. 2002-STA-35 (ARB Aug. 6, 2004), the ALJ found the Complainant's protected activities were both internal and external; although the complaint itself alleged only internal complaints, both theories were advanced at the hearing. On appeal, the Respondent argued that the ALJ's finding was a denial of due process. The ARB noted that "[w]hen issues not raised by the pleadings are reasonably within the scope of the original complaint and are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. 29 C.F.R. § 18.5(e)." Slip op. at 9. The ARB analyzed the proceedings before the ALJ, and found that although the complaint did not specifically address safety complaints made to federal officials, the Respondent knew from the opening statement of Complainant's counsel that this theory would be presented, the Respondent made no objection and instead affirmatively defended against that theory by calling a witness (whose testimony was only related to that issue) and by questioning other witnesses. The Board therefore found that the Respondent consented to try the issue and could not now object that it was not timely raised.
[STAA Whistleblower Digest II D 1]
MOTION TO AMEND COMPLAINT TO INCLUDE MORE RECENT EVENTS; ALJ'S LACK OF AUTHORITY TO COMPEL OSHA INVESTIGATION
In Ass't Sec'y & Freeze v. Consolidated Freightways, Inc., ARB No. 04-128, ALJ No. 2002-STA-4 (ARB Aug. 31, 2005), OSHA had determined that the complaint was untimely. The ALJ agreed, but remanded to OSHA to permit the Complainant to amend the complaint to include allegations based on more recent events. OSHA found in favor of the Complainant based on the amended complaint. The parties agreed that the OSHA findings and order should be made final, and the ALJ issued an order to that effect. The ALJ also later issued an order approving attorney's fees. The ARB construed the ALJ's orders as a recommended decision and order on the merits. The ARB found that it was required to issue the final order, and issued an order to show cause why the ALJ's order should not be approved. The Complainant's counsel responded that it would not be filing a brief and the the Respondent did not respond at all. The ARB affirmed the ALJ's decisions. In a footnote, the ARB stated:
Inasmuch as neither STAA nor its implementing regulations vest ALJs with authority to compel OSHA to conduct investigations, the better course for the ALJ would have been to dismiss the untimely complaint. Freeze could then have filed a new and timely complaint with OSHA that OSHA would have investigated. See 49 U.S.C.A. § 31105(b)(2)(A). OSHA's investigative findings and Preliminary Order could then have become final by operation of law when, as happened here, neither party objected. See 49 U.S.C.A. § 31105(b)(2)(B).
Slip op. at n.3.
II.D.1. Amendments to pleadings - STAA
The ALJ did not err in allowing an amendment to the pleadings to
include Mr. Bolin (CEO of respondent Bolin Associates),
individually, as a party. The Secretary noted that 29 C.F.R.
§ 18.5(e) provides, in pertinent part, that the ALJ may
allow appropriate amendments upon such conditions as are
necessary to avoid prejudicing the public interest and the rights
of the parties, where the amendment is reasonably within the
scope of the original complaint. In the instant case, Bolin's
individual employment decision was specifically challenged in the
original complaint. Inasmuch Bolin received notice from the
outset and participated in the investigation and all proceedings,
the amendment was proper and consistent with cases arising under
Rule 15 of the Federal Rules of Civil Procedure to the extent
that that rule is applicable pursuant to 29 C.F.R. §
18.1(a). Wilson v. Bolin Associates, Inc., 91-STA-
4 (Sec'y Dec. 30, 1991), citing Barkins v. International Inns,
Inc., 825 F.2d 905, 907 (5th Cir. 1987); Itell Capital
Corp. v. Cups Coal Co., Inc., 707 F.2d 1253 1258 (11th Cir.
1983); Serrano v. Collazo Torres, 650 F. Supp. 722, 725-29
(D.P.R. 1986).
[STAA Whistleblower Digest II D 1]
AMENDMENT OF COMPLAINT; DISCHARGE DURING HEARING; TRIAL OF ISSUE BY CONSENT
During the hearing in Jackson v. Wyatt Transfer, Inc., 2000-STA-57 (ALJ Oct. 29, 2003), the parties notified the ALJ that Respondent had discharged Complainant. Complainant alleged that the discharge was in retaliation for protected activity. Considering the seriousness of the employment action, the ALJ broadened the scope of the hearing to include the issue of Complainant's discharge. In his recommended decision, the ALJ noted that despite the lack of notice prior to the administrative hearing, due process is not offended if an agency decides an issue that the parties fully and fairly litigated at the hearing. The ALJ therefore considered the evidence on the discharge, but concluded that Complainant failed to establish his case by a preponderance of the evidence.
[STAA Digest II D 1]
AMENDMENT OF COMPLAINT
In Ass't Sec'y & Haefling v. United Parcel Service, 1998-STA-6 (ALJ
Mar. 23, 1998), the Prosecuting Party filed an unopposed motion to change the original
Preliminary Order to no longer seek temporary reinstatement. The ALJ granted the motion,
finding that 29 C.F.R. § 18.5(e) applied to permit an amendment of the complaint once as
a matter of right prior to the answer, and thereafter if the ALJ determines that the amendment is
reasonably within the scope of the original complaint.
[STAA Digest II D 1]
POST-HEARING AMENDMENT OF COMPLAINT
In Kelley v. Heartland Express, Inc. of Iowa, 1999-STA-29 (ALJ Mar.
24, 2000), Respondent complained that Complainant raised two new instances of
"protected activity" for the first time in his post-hearing brief, and because it relied
on Complainant's pre-hearing representations, it had not developed evidence at trial relating to
these two additional instances, and therefore the additional theories of liability should not be
considered. The ALJ recognized that a complainant's initial complaint should not be construed
as a formal legal pleading which may serve to limit a suit. Nonetheless, he found that
Complainant had referred only to a single protected activity throughout discovery, the pre-
hearing statement and at the hearing. The ALJ also found that the additional issues had not been
raised and litigated by implied consent of the parties; nor that Complainant had taken the
opportunity to amend his complaint in a timely manner. Thus, the ALJ concluded that
procedural due process required that only the originally pleaded protected activity be considered
at issue.
[STAA Digest II D 1]
AMENDMENT OF COMPLAINT BY PROSECUTING PARTY (OSHA)
In Ass't Sec'y & Haefling v. United Parcel Service, 98-STA-6 (ALJ
Mar. 23, 1998), the Prosecuting Party (OSHA), filed a motion to amend the Secretary's Findings
and Preliminary Order. The one significant change to the findings was that reinstatement was no
longer sought for Complainant. The ALJ treated this motion as a motion to amend the complaint
pursuant to 29 C.F.R. § 18.5(e), found that the amendment was within the scope of the
original complaint, and that the granting of the motion "is necessary to avoid prejudicing
the public interest and the rights of the parties." Respondent had earlier filed a verified
complaint in federal district court seeking to enjoin the Secretary of Labor from enforcing or
proceeding with the directive contained in the Preliminary Order relating to immediate
reinstatement of Complainant with backpay and full benefits.
II.D.1 Issue not tried inadvertently; treat as if
raised in pleadings
In Kovas v. Morin Transport, Inc., 92-STA-41 (ALJ
June 2, 1993), neither the report of the filing of a complaint,
nor the Secretary's Findings and Preliminary Order, nor the
letter of notification referred to section 2305(a) as a basis for
the Complainant's complaint. In fact, the letter of notification
notifying the Respondent of the filing of the complaint and the
nature of the charges referred specifically to section 2035(b).
The facts of the case, however, had nothing to do with a section
2035(b) violation. Upon review of the parties' responses to the
ALJ's prehearing orders, the ALJ determined that the Respondent
was aware that the issue involved in the case would fall under
the provisions of section 2305(a), and found that the issue had
been fully litigated prior to the hearing, and that nothing that
occurred at the hearing indicated that the Respondent was not
aware of the nature of the issue in the case.
The ALJ found that the section 2035(a) issue was not tried
inadvertently by the parties, and therefore it could be treated
as having been raised in the pleadings. Citing Fed. R.
Civ. P. 15(b); 29 C.F.R. § 18.5(e) and 18.xx(c).
II.D.2. Amendment of complaint to name individuals
In Gagnier v. Steinmann Transportation, Inc., 91-
STA-46 (Sec'y July 29, 1992), the ALJ properly allowed the
amendment of the complaint to add as parties the individuals who
made the termination decision where they had been referenced in
the charges set forth in the Complainant's formal complaint,
participated in the investigation, and were notified of the
proceedings. See Wilson v. Bolin Associates, Inc., 91-
STA-4 (Sec'y Dec. 30, 1991).
[STAA Whistleblower Digest II D 2]
AMENDMENT OF COMPLAINT; ADDITION OF PARTIES AT TIME OF HEARING
During the hearing in Griffith v. Atlantic Inland Carrier, 2002-STA-34 (ALJ Oct. 21, 2003), Complainant moved to amend the complaint to add several entities as party-respondents, arguing that they were a family of companies. The ALJ, taking into consideration due process, found that at that late date in the proceedings the rights of the proposed additional party-respondents would be prejudiced if an amendment to the complaint to add party-respondents was permitted.
See also Howick v. Campbell-Ewald Co., 2003-STA-6 (ALJ Aug. 7, 2003) (holding that it is within an ALJ's discretion to permit a complainant to amend his complaint to add individual respondents but finding, inter alia, that the motion came so late in the proceeding that it would be manifestly unfair to require the named individual to prepare a defense so close to the date of the hearing).
II.D.2. Impeading of individual who took adverse
action against complainant
The ALJ did not err in allowing an amendment to the pleadings to
include Mr. Bolin (CEO of respondent Bolin Associates),
individually, as a party. The Secretary noted that 29 C.F.R.
§ 18.5(e) provides, in pertinent part, that the ALJ may
allow appropriate amendments upon such conditions as are
necessary to avoid prejudicing the public interest and the
rights of the parties, where the amendment is reasonably within
the scope of the original complaint. In the instant case,
Bolin's individual employment decision was specifically
challenged in the original complaint. Inasmuch Bolin received
notice from the outset and participated in the investigation and
all proceedings, the amendment was proper and consistent with
cases arising under Rule 15 of the Federal Rules of Civil
Procedure to the extent that that rule is applicable pursuant to
29 C.F.R. § 18.1(a). Wilson v. Bolin Associates,
Inc., 91-STA-4 (Sec'y Dec. 30, 1991), citing Barkins
v. International Inns, Inc., 825 F.2d 905, 907 (5th Cir.
1987); Itell Capital Corp. v. Cups Coal Co., Inc., 707
F.2d 1253, 1258 (11th Cir. 1983); Serrano v. Collazo
Torres, 650 F. Supp. 722, 725-29 (D.P.R. 1986).
II.D.3. Second hearing request
notice
Where the Regional Administrator of OSHA issued two hearing
request notices, one as the result of Respondent's objections to
the preliminary order and the second as the result of
Complainant's objections which included an objection that a
request for payment of back premiums on health and welfare
benefits had not been ordered in the preliminary order, the ALJ
did not err in requiring Respondent to litigate the back premiums
issue in a hearing that had already been set by the time the
second notice was issued.
The Secretary held that bifurcated hearings are not conducive to
meeting the statutory time limitation for final administrative
resolution of section 2305 claims. The Secretary found that
Respondent was not denied adequate notice that the premiums issue
would be litigated in the original hearing because it had
received the RA's second notice at least two weeks before the
hearing was scheduled to begin, and was on notice about one week
before the hearing that the issue of damages was to be litigated
at that hearing.
Hufstetler v. Roadway Express, Inc., 85-STA-8
(Sec'y Aug. 21, 1986), overruled on other grounds,
Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir.
1987).
II.E.1. Conduct of hearing; power of ALJ to
examine witnesses
An ALJ is fully empowered to examine witnesses in a STAA
proceeding. See 29 C.F.R. § 18.29(a)(2).
Spinner v. Yellow Freight System, Inc., 90-STA-17
(Sec'y May 6 1992) (order denying motion to strike brief, to
disqualify ALJ and strike decisions, and to dismiss
proceeding).
II.E.1. Conduct of hearing; interview of witnesses
The ALJ had properly used "separate" interview
procedure in eliciting "simulated employment
interview" testimony. The alternative "common" or
"group" interview technique would have defeated witness
sequestration order and interfered with complainant's opportunity
for cross-examination.
Spinner v. Yellow Freight System, Inc., 90-STA-17
(Sec'y May 6, 1992) (order denying motion to strike brief, to
disqualify ALJ and strike decisions, and to dismiss
proceeding).
II. E. 1. Power of ALJ to examine witnesses
In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y
Aug. 3, 1994), the Secretary rejected the Respondent's contention
that the ALJ demonstrated bias at the hearing by cross-examining
Respondent's witnesses "to great lengths." The
Secretary noted that the ALJ's questioning was authorized under
20 C.F.R. §§ 18.26, 18.29, 18.614 and 5 U.S.C. §
556. He found that the questioning did not show prejudgment, but
an intent to understand the issues and complete the record. He
noted that the ALJ also cross-examined the Complainant, and that
the Respondent raised no objection at the hearing to the ALJ's
examination of its witnesses.
II. E. 1. Power of ALJ to examine witnesses
In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y
Aug. 3, 1994), the Secretary rejected the Respondent's contention
that the ALJ demonstrated bias at the hearing by cross-examining
Respondent's witnesses "to great lengths." The
Secretary noted that the ALJ's questioning was authorized under
20 C.F.R. §§ 18.26, 18.29, 18.614 and 5 U.S.C. §
556. He found that the questioning did not show prejudgment, but
an intent to understand the issues and complete the record. He
noted that the ALJ also cross-examined the Complainant, and that
the Respondent raised no objection at the hearing to the ALJ's
examination of its witnesses.
II.E.2. Authority of ALJ to issue
orders
The Secretary may properly delegate its authority to conduct
hearing to ALJs. Along with that authority, logically, comes the
ability to issue orders. 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 II E 2]
AUTHORITY OF ARB; ALJ DOES NOT NEED ARB'S PERMISSION TO RULE ON A MOTION; NOR DOES THE ARB HAVE THE AUTHORITY TO ORDER THE ALJ TO RULE A CERTAIN WAY PRIOR ISSUANCE OF A DECISION AND ORDER
In Somerson v. Eagle Express Lines, Inc., ARB No. 06-001, ALJ No. 2004-STA-12 (ARB Dec. 13, 2005), the Complainant filed a document with the ARB requesting that it permit the ALJ to rule on two previous summary judgment motions filed by the Complainant's former attorney and to forbid the ALJ from disposing of the case on the Complainant's alleged inability to participate in the matter. The ARB found that it had no authority to grant the relief requested. The Board indicated that the ALJ did not need its permission to rule on the summary judgment motions and stated that it has no authority to order the ALJ how to rule in a case before the ALJ has issued his decision and order.
[Editor's note: The Complainant's motion was evidently grounded in the fact that his attorney had been disqualified from appearing before OALJ].
[STAA Digest II E 3]
ALJ DECISION; ARB INDICATES THAT
IT WANTS ALJS TO EXPLICITLY MAKE A FINDING ON COVERAGE, EVEN IF IT IS NOT
DISPUTED
In Minne
v. Star Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the ARB indicated that even
if coverage is not disputed and that such is assumed, it would be helpful for the ALJ to so
state explicitly in the decision and to state his reasons.
II.E.3. Scope of issues before
ALJ
The ALJ should not have raised in his Recommended Decision and
Order the issue of whether the complainant was an
"employee" under the STAA where the complainant had not
had an opportunity to establish coverage because the defense had
not been raised below and the record had not been developed on
the issue. Because the complainant could not prevail on the
merits of his claim, however, the case was not remanded.
Mace v. Ona Delivery Systems, Inc., 91-STA-10
(Sec'y Jan. 27, 1992).
II E 3 Consideration by ALJ of issue not investigated
by OSHA
In
Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17,
1995), the Regional Administrator of OSHA had only investigated a
section 405(b) refusal to drive violation, and the Respondent
argued that the ALJ erred in considering a section 405(a)
violation. The Secretary found, however, that the complaint had
stated an allegation of a 405(a) violation, and that the ALJ had
not erred in considering that section. See Yellow
Freight System, Inc. v. Reich, 27 F.3d 1133, 1140 (6th Cir.
1994) (finding that the complaint gave adequate notice of claim
of violation of STAA section 405(a) even though OSHA
determination letter referred only to section 405(b)).
[STAA Digest II E 4]
DUE PROCESS; ALJ ERRED IN ADJUDICATING, OVER THE OBJECTION OF THE COMPLAINANT, A TERMINATION OF THE COMPLAINANT THAT OCCURRED SHORTLY BEFORE THE HEARING WHERE THE COMPLAINANT DID NOT HAVE ADEQUATE NOTICE THAT THE ISSUE WOULD BE HEARD
In Israel v. Schneider National Carriers, Inc., ARB No. 06-040, ALJ No. 2005-STA-51 (ARB July 31, 2008), the Complainant filed a complaint with OSHA alleging that the Respondent had harassed and discriminated against him and had removed him from active employment for engaging in whistleblower activities. Shortly before the ALJ hearing, the Respondent terminated the Complainant's employment. The Respondent included evidence concerning the termination in its pre-hearing statement. At the hearing, believing it more efficient to hear the case in whole, the ALJ consolidated the termination with the original complaint filed with OSHA. The Complainant objected on the ground that he was not prepared to address his termination. On appeal that he argued that he was prejudiced by the ALJ's inclusion of his termination in the hearing. The ARB agreed, and remanded for further proceedings. The ARB found that the consolidation of the termination issue violated the Complainant's right to due process, and that the ALJ should have afforded the Complainant proper notice and time to conduct discovery and prepare a case against his termination. The ARB, however, was not convinced that the Complainant was entitled to a re-opening of the record. On remand, the ALJ was directed to conduct an inquiry into what additional discovery or evidence the Complainant would seek if the ALJ were to re-open the record. The ARB stated that the burden would be on the Complainant to put forward facts or witnesses that, if true, could result in a successful legal conclusion; if he could not do this, the ALJ could conclude that the Complainant is not entitled to a hearing and dismiss the case.
II.E.4. Due process
In deciding not to retain an attorney to represent him, a
complainant bears the risk that presentation of his claims may be
less effective. At the same time, administrative process
entitles a pro se complainant to have his case heard. 5 U.S.C.
§ 554(d). Thus, the Secretary remanded Land v.
Consolidated Freightways, 91-STA-28 (Sec'y May 6, 1992),
for further proceedings where the complainant was limited to
responding to narrow questioning, was not permitted to explain
his answers fully, and never was accorded an opportunity to
narrate his version of events; several attempts to relate events
relevant to a possible STAA complaint were curtailed; exhibits
offered by complainant were rejected without complete
explanation;complainant was prevented from examining a management
employee who was present at the hearing and from conducting
direct examination of two other managers as he requested; the
Recommended Decision and Order did not address allegations raised
by complainant in his post-hearing statement which he attempted
to prove at the hearing.
[STAA Digest II E 4]
DUE PROCESS; PRO SE LITIGANT CANNOT SHIFT THE BURDEN OF LITIGATING HIS CASE TO THE COURT
In Hobson v. Combined Transport, Inc., ARB Nos. 06-016, 06-053, ALJ No. 2005-STA-35 (ARB Jan. 31, 2008), the Respondent was represented at the ALJ hearing by a recruiting manager, who was not an attorney. On appeal, the Respondent contended that the ALJ erred in failing to inform this representative of the Respondent’s burden to prove that the Complainant failed to mitigate damages. The ARB rejected this contention, however, because the ALJ had examined the Complainant about his employment search, and directed the representative to address the issue of damages. The representative, however, asked no questions of the Complainant.
The Respondent also contended that the ALJ erred in not informing the company at the outset of the litigation about essential elements of the case, such as the applicable rules of practice, the fact that the OSHA investigatory findings and preliminary order were not part of the record, the company’s burden of proof, and the need to order a transcript. The Respondent contended that this failure denied it due process. The ARB found no merit to this contention, finding that a pro se litigant cannot shift the burden of litigating his case to the courts nor avoid the risk attending the decision to forego expert assistance.
[STAA Whistleblower Digest II E 4]
PRO SE LITIGANT; ALJ ACTS PROPERLY IN LIBERALLY CONSTRUING COMPLAINANT'S TESTIMONY AND EVIDENCE IN REGARD TO THEORIES THAT MIGHT SUPPORT THE COMPLAINT
In Coxen v. United Parcel Service, ARB No. 04-093, ALJ No. 2003-STA-13 (ARB Feb. 28, 2006), the Complainant failed to establish that his termination for insubordination was pretext for retaliation against earlier protected activity. Although the Complainant, appearing pro se, did not actually verbalize or make arguments about theories of pretext, "the ALJ acted properly when she liberally construed [the Complainant's] testimony and other evidence and formulated (‘theories') regarding pretext." Slip op. at 6 n.19 (citation omitted).
[STAA Digest II E 4]
DUE PROCESS; ALJ ERRS IN MAKING ALTERNATIVE FINDING ON POSSIBLE THEORY OF CASE NOT ACTUALLY TRIED
In Krahn v. United Parcel Service of America, Inc., ARB No. 04-097, ALJ No. 2003-STA-24 (ARB May 9, 2006),
PDF
the ARB held that the ALJ erred in making an alternative finding on whether the Complainant had proved that he had engaged in protected activity under section 31105(a)(1)(A) (the "filing of a complaint" provision), where the Complainant had not alleged protected activity under this provision of the STAA, but rather under the "refusal to drive" provisions of section 31105(a)(1)(B). The ARB cited cases holding that due process precludes a decision on STAA provisions not actually tried.
[STAA Whistleblower Digest II E 4]
DUE PROCESS; RESPONDENT MUST BE GIVEN NOTICE OF STAA PROVISION WHICH WAS ALLEGEDLY VIOLATED
Where none of the documents in the record showed a charge of a STAA, 42 U.S.C.A § 31105(a)(1)(B)(i) violation (operation of vehicle in violation of a federal motor vehicle safety regulation), and such a violation was neither raised at the administrative hearing nor tried by express or implied consent, the ARB found that the ALJ's holding that Complainant's refusal to drive was protected under that section was reversible error. Ass't Sec'y & Helgren v. Minnesota Corn Processors, Inc., ARB No. 01-042, ALJ No. 2000-STA-44 (ARB July 31, 2003) ("Respondents in STAA cases have the right to know the theory on which the agency will proceed.").
See also Wrobel v. Roadway Express, Inc., ARB No. 01-091, ALJ No. 2000-STA-48, slip op. at n.4 (ARB July 31, 2003) (ARB expressing doubt that a section 31104(a)(1)(B)(ii) complaint should be found to have been brought under this provision where it was not stated in the OSHA complaint or pre-hearing statement; ARB, however, found that determination under this provision by the ALJ was harmless error (if error at all) because, under the facts as found by the ALJ and the ARB, Complainant was not entitled to recovery under this alternative theory).
[STAA Whistleblower Digest II E 4]
FAILURE TO ADMINISTER OATH
In Jackson v. Wyatt Transfer, Inc., ARB No. 01-076, ALJ No. 2000-STA-57 (ARB Apr. 30, 2003), the ALJ's failure to administer an oath or affirmation to Complainant and to Respondent's president/CEO was such serious error that it required vacating of the Recommended Decision and Order and a remand to the ALJ. The ARB considered caselaw to the effect that where a witness is permitted to testify without being sworn a waiver may be presumed, but found that in the instant case, with both Complainant and Respondent having appeared pro se, there could be no finding of waiver. The Board held " ... where a mandatory requirement that witnesses be sworn exists, but none of the witnesses were sworn, and the party claiming the right was not represented by counsel at the hearing, we will not find default. Thus, on appeal Jackson may raise the issue of the ALJ's failure to swear witnesses at the hearing." The Board, however, did not go so far as holding that the testimony given was void or the R D & O was void, ordering a new hearing, or requiring the appointment of a new judge. Rather, the Board merely directed the ALJ on remand to "remedy the defects ... in a manner he deems proper and efficacious."
[STAA Digest II E 4]
PROCEDURE; ADEQUATE TIME TO OBTAIN ATTORNEY
Where Respondent, who had appeared pro se, requested a new trial asserting for the first
time upon review by the Board that he did not have enough time to retain an attorney for the
hearing, the Board denied the request because there had been two months between the time
Complainant requested a hearing and the date of the hearing was conducted, and because the
record did not include that Respondent had sought a postponement of the hearing to seek an
attorney. Ass't Sec'y & Ferguson v. K & P,
Inc., 96-STA-17 (ARB Oct. 30,
1996).
II.E.4. Ruling on motions; time allotted
The time frames set out at 29 C.F.R. §§ 18.4 and 18.6
apply under 29 C.F.R. § 1978.106. It is improper for an ALJ
to rule on motions without permitting the opposing party an
opportunity to respond. Spearman v. Roadway Express,
Inc., 92-STA-1 (Sec'y Oct. 27, 1992) (Order Denying
Motion to Reconsider), slip op. at n1.
II.E.4. ALJ's abbreviation of hearing
In Green v. Creech Brothers Trucking, 92-STA-4
(Sec'y Dec. 7, 1993), Secretary Reich vacated a decision by
Secretary Martin in Complainant's favor, Green v. Creech
Brothers Trucking, 92-STA-4 (Sec'y Dec. 9, 1992), remanded a
case for submission of further evidence by both Complainant and
Respondent. Secretary Reich's Order of Remand was based on
Respondent's decision to join Complainant's earlier complaint
that he was denied due process at the hearing before the ALJ, and
the Assistant Secretary's agreement that the case should be
remanded under the circumstances.
[Editor's note: In Secretary Martin's decision it was noted that
Complainant contended that the ALJ made it clear that he had to
catch a 5:00 pm flight, disallowed closing argument, and caused
counsel to abbreviate the taking of testimony. Secretary Martin
took this into consideration but ruled in favor of Complainant,
apparently mooting Complainant's due process issue. The ALJ had
recommended dismissal of the complaint]
II E 4 Summary decision inappropriate when
questions of fact exist
In Schuler v. M & P Contracting, Inc., 94-STA-
14 (Sec'y May 4, 1994), the ALJ recommended dismissal based on
his finding that the uncontradicted documentary record
established that Complainant did not file a timely complaint.
The ALJ had issued an order to show cause why the complaint
should not be dismissed as untimely, in response to Complainant
produced a letter that would have been timely. The ALJ concluded
that the letter was a fabrication, and that equitable tolling of
the limitations period was not justified.
On review, the Secretary concluded that there were sufficient
questions of fact concerning Complainant's filing of a timely
complaint with the U.S. Department of Labor, to warrant further
development of the evidence and consideration of the issue before
the ALJ. The Secretary remanded the case to the ALJ for a
hearing on the issue of timeliness and equitable tolling.
II.E.5. Recusal of ALJ
The ALJ properly denied respondent's recusal motion where the ALJ
demonstrates no actual bias against respondent nor prejudges
facts adversely to respondent's case. The Secretary found that
the ALJ had not improperly excluded evidence or precluded parties
from protecting the record, and had fully considered objections
and had generally given explanations when rejecting objections.
Spinner v. Yellow Freight System, Inc., 90-STA-17
(Sec'y May 6, 1992) (order denying motion to strike brief, to
disqualify ALJ and strike decisions, and to dismiss
proceeding).
[STAA Whistleblower Digest II E 5]
ALJ BIAS; ELEMENTS FOR ESTABLISHING; JUDICIAL RULING ARE PROPER
GROUNDS FOR APPEAL, NOT RECUSAL
In Germann v. Calmat Co., ARB No. 99 114,
ALJ No. 1999 STA 15 (ARB Aug. 1, 2002), Respondent requested that the ARB order a new
hearing by a different ALJ because of the alleged prejudicial effect on the ALJ in improperly
admitting hearsay and irrelevant evidence. Respondent argued that the inadmissible evidence
so adversely affected the ALJ's decision making ability that it was deprived of a fair hearing and
decision. The ARB, however, found that the admission of the evidence was harmless error. In
addition, it found that the objected to evidence was not so inflammatory as to persuade the
ARB that the ALJ had become prejudiced. The ARB then recited the elements necessary for
establishing bias:
A party claiming bias must first overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. High v. Lockheed
Martin Energy Systems, Inc., ARB No. 98 075, ALJ No. [19]96 CAA 8 (ARB
Mar. 13, 2001). In this regard, speculation regarding the potential effect that
evidence may have had upon the ALJ standing alone cannot overcome the
presumed integrity of an ALJ. Second, a party seeking to establish judicial bias
must show the existence of a "significant (and often determinative)
'extrajudicial source' factor." Liteky v. United States, 510 US 540,
554 555 (1994). "[J]udicial rulings alone almost never constitute a valid
basis for a bias or partiality motion." Id. Additionally,
"opinions formed by the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a
deep seated favoritism or antagonism that would make fair judgment
impossible." Id. Judicial rulings are "proper grounds for
appeal, not for recusal." Id. CalMat asserts evidentiary rulings, not
significant extrajudicial factors or favoritism, as its basis for contending judicial
bias. Its argument, therefore, would also fail under the Liteky criteria.
[STAA Whistleblower Digest II E 5]
MOTION FOR REASSIGNMENT OF ALJ GROUNDED IN MOTION TO
RECUSE
In Scott v. J.B. Hunt Transport, Inc., 2002-STA-1 (ALJ Apr. 19, 2002), the Complainant requested that the Chief ALJ reassign the case to a different ALJ based on the contention that the currently assigned ALJ had shown favoritism toward Respondent. The request was supported by a copy of a motion to recuse and declaration in support of motion earlier filed with the presiding judge. The Chief ALJ denied the
motion, holding:
...I find that I have no authority to consider a motion for
reassignment of the presiding judge in this case grounded in a motion to recuse.
Rather, in the normal case, an allegation of judicial misconduct is documented
by the motion to recuse and the ALJ's ruling on the motion, which preserves the
matter for review by the Administrative Review Board if raised as a ground for
appeal.
[STAA Digest II E 5]
ALJ CONDUCT; APPROACHING RETIREMENT
In Ass't Sec'y & Ferguson v. K & P,
Inc., 96-STA-17 (ARB Oct. 30,
1996), Respondent complained that he was denied a fair trial because the ALJ was "up for
retirement". The Board noted that Respondent did not explain how that fact would have
improperly affected the ALJ's impartiality.
II.E.5. Standard for removal of ALJ; procedure for
allegations of ALJ misconduct
The ALJ in an STAA proceeding issued a recommended decision and
forwarded the administrative file to the Secretary. For some
reason, a good number of the exhibits were not included in the
record, and it appeared that the ALJ may not have considered all
of the exhibits in rendering his initial recommended decision.
The Secretary remanded for the ALJ to issue a supplemental or
amended decision and order reflecting his evaluation of all the
evidence in a reconstituted record. The Secretary rejected
Respondent's contention that the ALJ was biased and that the
matter should be retried before a different ALJ.
In a second remand order, the Secretary stated that remand of a
case for a new hearing before a different ALJ is warranted where
"the ALJ's conduct [is] so extreme that it deprives the
hearing of that fairness and impartiality necessary to that
fundamental fairness required by due process." NLRB v.
Webb Ford, Inc., 689 F.2d 733, 737 (7th Cir. 1982); accord
Tele-Trip Co. v. NLRB, 340 F.2d 575 (4th Cir. 1985). The
Secretary found that in the instant case, where no defect in the
conduct of the trial was alleged, it would be unnecessarily
burdensome and costly to require a new hearing. The missing
physical evidence, if it could not be reconstituted for the
Secretary's review, could not be duplicated for a new trial.
Further, the Secretary found that upon review of the
reconstituted record, including the ALJ's recommended decision
and order, such bias on the part of the ALJ as to require that
the case be reassigned to another ALJ was not present.
In the Secretary's Final Decision and Order, he essentially found
that the physical evidence introduced at the hearing but not
reconstructed for the record before the Secretary was not
necessary for resolution of the complaint -- that all of the
evidence was demonstrative and not direct evidence.
Respondent requested an investigation into how the exhibits were
lost, why the ALJ did not consider them or refer in his decision
to the fact that they were missing, and whether the ALJ was
biased and prejudiced against Respondent because it has publicly
charged him with bias. The Secretary indicated that these
complaints should be addressed to the Chief Administrative Law
Judge of the Department of Labor, and cited Procedures for
Internal Handling of Complaints of Judicial Misconduct;
Establishment of Advisory Committee, 46 Fed. Reg. 28,050 (1981).
See Hufstetler v. Roadway Express, Inc., 85-STA-8
(Sec'y Jan. 7, 1986) (order of remand), Hufstetler v.
Roadway Express, Inc., 85-STA-8 (Sec'y Apr. 8, 1986)
(order of remand); and Hufstetler v. Roadway Express,
Inc., 85-STA-8 (Sec'y Aug. 21, 1986), overruled on
other grounds, Roadway Express, Inc. v. Brock,
830 F.2d 179 (11th Cir. 1987).
II. E. 5. Recusal/removal of the ALJ
In Roadway Express, Inc. v. Reich, No. 93-3787 (6th
Cir. Aug. 22, 1994) (unpublished) (available at 1994 U.S. App.
LEXIS 22924), the Petitioner, Roadway, argued that the Secretary
violated 5 U.S.C. § 3105 when she ordered the originally
assigned ALJ removed from the case. That section provides in
relevant part: "Administrative law judges shall be assigned
to cases in rotation so far as practicable[.]" Courts have
interpreted this "so far as practicable" language to
afford agencies a "modicum of discretion," Tractor
Training Serv. v. Federal Trade Comm'n, 227 F.2d 420, 423
(9th Cir. 1955), cert. denied, 350 U.S. 1005, 100 L. Ed.
867, 76 S. Ct. 649 (1956), to depart from the ALJ rotation order.
The cases reveal that this discretion is validly exercised when
the departure is made to further the interests of administrative
efficiency.
- See Ramspeck v. Federal Trial Examiners
Conference, 345 U.S. 128, 139-40, 97 L. Ed. 872, 73 S.
Ct. 570 (1953) (the phrase "so far as practicable"
allows agencies to consider whether an ALJ is
"qualified to handle" a particular case);
- Tractor Training Serv. v. Federal Trade Comm'n,
227 F.2d 420, 423 (9th Cir. 1955), cert. denied, 350
U.S. 1005, 100 L. Ed. 867, 76 S. Ct. 649 (1956) ("the
interests of economy" supported the FTC's decision to
reassign a case from an East Coast hearing examiner to an
examiner in Oregon because, it seems, the majority of the
witnesses resided in the Portland, Oregon, area);
- National Nutritional Foods Association v. Food &
Drug Administration, 504 F.2d 761 (2d Cir. 1974) (FDA
had ensured that a particular case was assigned to a
newly-hired examiner because its only other examiner was
"otherwise engaged.");
- Aaacon Auto Transport, Inc. v. Interstate Commerce
Comm'n, 253 U.S. App. D.C. 202, 792 F.2d 1156, 1163
(D.C. Cir. 1986), cert. denied, 481 U.S. 1048, 95 L.
Ed. 2d 834, 107 S. Ct. 2178 (1987) (ICC directed a change of
ALJs on remand, because of the original ALJ's "proven
inability to cut through Aaacon's dilatory tactics and move
the proceedings along[.]").
- Note: Although not an issue in the instant case, the
court noted that an ALJ also may be removed for bias under 5
U.S.C. § 556(b).
The court found that viewed in light of these cases, the
Secretary's decision to remove the ALJ fell within the discretion
afforded her by § 3105. The impetus for removal of the ALJ
apparently was that she was "particularly disturbed" by
his repeated refusal to await the expiration of the usual
response period before issuing rulings on Roadway's motions.
Thus, the Secretary removed the ALJ not because she simply
disagreed with his rulings, but because, like the ALJ in
Aaacon, the ALJ had failed to conduct the proceedings in
an appropriate manner. In Aaacon, the ALJ's handling of the case
was too dilatory; here it was too hasty.
II. E. 5. Recusal/removal of the ALJ
In Roadway Express, Inc. v. Reich, No. 93-3787 (6th
Cir. Aug. 22, 1994) (unpublished) (available at 1994 U.S. App.
LEXIS 22924), the Petitioner, Roadway, argued that the Secretary
violated its due process right to a fair hearing, on the theory
that the removal of the ALJ, together with the Secretary's
criticism of the ALJ's rulings in favor of Roadway, sent a
"strong message" to newly assigned ALJ about the
ultimate result that the Secretary thought should be reached in
the case.
The court noted that it had recognized that "the due process
requirement of a fair trial in a fair tribunal 'applies to
administrative agencies which adjudicate as well as to
courts.'" Utica Packing Co. v. Block, 781 F.2d 71, 77
(6th Cir. 1986) (quoting Withrow v. Larkin, 421 U.S. 35,
46, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975)). Thus, the due
process rights of an administrative litigant are violated when
"the risk of unfairness" to that litigant is
"intolerably high." Id. at 78. Although the
protesting litigant bears the burden of proving the existence of
such a risk, id., the litigant need not prove "actual
partiality" to carry this burden. Id. at 77.
In Utica Packing, the judicial officer who first rendered
the decision was replaced on remand from the Sixth Circuit by the
Secretary of Agriculture by a Deputy Assistant Secretary of
Agriculture. On review, the Sixth Circuit found that the
replacement of the judicial officer violated due process, noting
that "there is no guarantee of fairness when the one who
appoints a judge has the power to remove the judge before the end
of proceedings for rendering a decision which displeases the
appointer." Id. at 78.
The court found that the facts in the instant proceeding differed
materially from those in Utica Packing because
- DOL was not a party to the litigation at issue, and
Roadway did not show that the DOL otherwise had some
vested interest in the result reached by the ALJ.
Thus, there is no basis for concluding that the
original ALJ's decisions "displeased"
Secretary Martin in the sense in which the Utica
Packing court used that term.
- The Secretary's removal of the original ALJ and
criticism of his rulings posed nowhere near the risk of
unfairness that was posed by the replacement of the
judicial officer in Utica Packing with USDA's
"hand-picked" successor. The DOL Secretary's
legal disagreements with the original ALJ were limited
to technical, procedural issues that bore no direct
relationship to the merits of the case.
The court also rejected Roadway's contention that there is
"no doubt" that a strong message was received by the
replacement ALJ because he resolved a critical issue of
credibility against Roadway by relying on highly equivocal
testimony. The court found inadequate evidence that ALJ Lawrence
had been cowed by Secretary Martin's earlier actions. The court
wrote that "[a] factfinder need not always make credibility
determinations in favor of the more categorical witness."
II.E.5. Substitution of presiding ALJ
An Administrative Law Judge may be disqualified upon a showing of
personal bias. To establish improper prejudgment, it must appear
that the ALJ in some measure adjudged the facts and the law of a
case in advance of hearing them. Other factors, such as the
complexity of a case and an ALJ's experience and ability, also
may bear on the necessity for reassignment. Although the
Administrative Procedure Act requires agencies to assign ALJs in
rotation to the extent "practicable," 5 U.S.C. §
3105, a "modicum of discretion" is accorded in
assignment decisions. Citations omitted.
The Chief ALJ was directed to assign a different ALJ for purposes
of conducting a de novo hearing where:
- the ALJ had repeatedly ruled on respondent's
motions without awaiting expiration of the period
permitted for complainant's response, thus denying
him an opportunity to be heard, and in all
instances the timely responses (but filed after
the ALJ's premature rulings) were well-taken and
deserved careful consideration.
- several of the ALJ's rulings were plainly in
error.
- the ALJ had not presided at the taking of any
evidence at the earlier proceedings.
Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y
Aug. 5, 1992) (order vacating procedural order and directing
reassignment).
II E 5 ALJ's bias; credibility
determination
In Nolan v. A.C. Express, 93-STA-38 (Sec'y May 13,
1994), Complainant contended that the ALJ demonstrated
impermissible bias when he stated in the recommended decision and
order that "Complainant's conduct with respect to Respondent
was belligerent and intransigent as was his demeanor at the
hearing."
The Secretary held that
Assessing a party's demeanor at a hearing is well
within the range of authority of an ALJ. To establish bias,
or improper prejudgment, it must appear that the ALJ in some
measure adjudged the facts and the law of a case in advance
of hearing them. Spearman v. Roadway Express, Inc.,
Case No. 92-STA-1, Order Vacating Procedural Orders and
Directing Reassignment, August 5, 1992, slip op. at 1;
City of Charlottesville, VA v. FERC, 774 F.2d 1205,
1212 (D.C. Cir. 1985), cert. denied, 475 U.S. 1108
(1986). There was no such showing in this case.
Slip op. at 9 n.4.
II.E.5. Bias/incompetence as basis for
recusal
In Spearman v. Roadway Express, Inc., 92-STA-1
(Sec'y Oct. 27, 1992) (Order Denying Motion to Reconsider), the
Secretary stated that although bias is a bias for recusal, she
premised her earlier order of reassignment of this matter to a
different ALJ not on bias but on the ALJ's inadequate handling of
the proceedings. The respondent's motion to reconsider was based
in part on an argument that bias had not been shown.
II.E.6. Responsibility to afford
opportunity for opposing party to
respond prior to granting relief
requested
It is error to issue an order granting requested relief without
giving other parties "reasonable opportunity to state an
objection to the motion or request." 29 C.F.R. §
18.6(a). Hester v. Blue Bell Services, 86-STA-11
(Sec'y July 9, 1986).
II.E.6. ALJ must permit opposing party to
respond
Where the ALJ recommended dismissal six days after Respondent
moved for summary decision, he violated the requirement of Rule
40 of the Rules of Practice and Procedure for Administrative Law
Judges that the party opposing a motion for summary decision be
afforded 10 days to "serve opposing affidavits or
countermove for summary decision." 29 C.F.R. §
18.40(a).
Bowyer v. Roadway Express, Inc., 84-STA-16 (Sec'y
Jan. 15, 1985).
II.E.7. ALJ Remand
In White v. "Q" Trucking Company, 93-STA-
28 (ALJ Nov. 9, 1993), the ALJ recommended a remand to the Wage
and Hour Division for an investigation of whether an additional
party was liable as a joint employer and should be joined as a
party as required by Rule 19(a) of the Federal Rules of Civil
Procedure.
[Editor's note: The ALJ recommended a remand. Could he have
remanded directly? Secretarial review will considerably add to
the processing time of the proceeding. Why couldn't the ALJ just
have joined the party before him since it's a de novo review.
Was he thinking of identification of a responsible operator in
black lung?]
[STAA Digest II E 7]
REMAND TO OSHA; AUTHORITY OF ALJ; LETTER PRACTICE OF SOLICITOR'S OFFICE
In Fraley v. Transervice Logistics, Inc., 2005-STA-11 (ALJ June 27, 2005), the ALJ had granted a joint motion to remand to OSHA for further proceedings before that office, and the Regional Solicitor wrote a letter to the ALJ which, in effect, stated that OSHA would ignore the remand on the ground that there was no legal authority for such a remand. The ALJ vacated the remand because the parties had settled the case and submitted the settlement to the ALJ for approval. The ALJ stated that he was vacating the remand because of the settlement and not for the reason stated in the Solicitor's letter, which had cited no authority. The ALJ noted that there was precedent for remands to OSHA and that the ARB routinely remands cases to ALJs even though there is no express authority for such a procedure. As an aside, the ALJ noted that it would have been more proper for the Solicitor to have filed a motion for reconsideration rather than rather than writing the ALJ a letter.
[STAA Digest II.E.7.]
REMAND TO OSHA; OSHA FINDING OF UNTIMELY FILING OVERTURNED,
REMAND FOR INVESTIGATION ON MERITS
In Clement v. Milwaukee Transport Services,
Inc., 2000-STA-8 (ALJ Aug. 7, 2000), the ALJ granted the Assistant Secretary for
OSHA's motion to remand to OSHA for an investigation of the merits pursuant to 29 C.F.R.
§ 1978.104, where the ALJ had earlier overturned OSHA's original finding that
Complainant's complaint was not timely filed.
[STAA Digest II E 7]
OSHA INVESTIGATION; DISPOSITION OF COMPLAINT WHEN ALJ OVERTURNS
OSHA FINDING OF UNTIMELY FILING
In Clement v. Milwaukee Transport Services, Inc., 2000-STA-8 (ALJ
June 20, 2000), OSHA had determined that the complaint was untimely. The ALJ, however,
upon consideration of the evidence submitted by Complainant in response to a motion to dismiss,
found that the complaint was in fact timely. Respondent thereafter filed a motion to remand for a
finding by OSHA on the merits. In response, Complainant requested that an investigation be
ordered. The ALJ granted the motion to remand for an investigation as contemplated by 29
C.F.R. 1978.104.
Subsequently, however, the Assistant Secretary filed a motion to intervene and motion to
dismiss without prejudice, requesting a withdrawal of the earlier OSHA findings. No objection
was filed to this subsequent order, and the ALJ granted the motion to dismiss, noting that the
purpose of the dismissal is to all to allow for an investigation, and directing the Assistant
Secretary to issue written findings in accordance with 29 C.F.R. 1978.104. Clement v.
Milwaukee Transport Services, Inc., 2000-STA-8 (ALJ Aug. 7, 2000).
II.E.7. Remand to clarify bankruptcy status
In Rowland v. Easy Rest Bedding, Inc., 93-STA-19
(ALJ May 6, 1994), the ALJ remanded the case to the Regional
Administrator of OSHA to determine the status of the Respondent
where the corporation has filed bankruptcy proceedings and the
President of the corporation, also a named respondent, has died,
and whether the Complainant wishes to pursue his claim under such
circumstances.
II.E.7. Remand to Assistant Secretary
In Arnold v. Associated Sand and Gravel Co.,
Inc., 92-STA-19 (Sec'y Aug. 31, 1992), the ALJ found that
the respondent was covered by the STAA whistleblower provisions
even though its trucks crossed state lines only on very rare
occasions. The Assistant Secretary had found that the
respondent was not covered. The ALJ recommended that the case be
remanded to the Assistant Secretary for findings on the merits.
The Secretary, analogizing to a decision to defer to the outcome
of other proceedings, 29 C.F.R. § 1978.112, found that the
Assistant Secretary's decision was tantamount to finding a lack
of "reasonable cause to believe that the complaint has
merit, 49 U.S.C. app. § 2305(c)(5)(A). Thus, the
complainant was entitled to a de novo hearing before an ALJ on
all issues raised by his complaint. Accordingly, the Secretary
remanded to the ALJ for further proceedings.
II.E.8.. Scope of discretion on remand
[STAA Digest II E 8]
REMAND FOR CONSIDERATION OF DAMAGES; ALJ'S DISCRETION TO
DETERMINE WHETHER ADDITIONAL HEARING REQUIRED
In Michaud v. BSP Transport,
Inc., 95-STA-29 (ARB Oct. 9, 1997), the ALJ had canceled a scheduled hearing
on remand for a determination of damages when Complainant asked the ALJ to resolve the
damages issue on the existing record. The ALJ canceled the hearing prior to the time
Respondent should have had to respond to Complainant's request. The ARB held that this was
harmless error because the remand order had not explicitly required the ALJ to hold a second
hearing to resolve the issue of damages, the existing record contained sufficient evidence to
reasonably make a damage award, and Respondent had ample opportunity to present its evidence
regarding the damages in the initial hearing.
II.F. Party's request for extension to
file a brief before the Secretary
is a waiver of the 120-day
decisional deadline
In Stiles v. J.B. Hunt Transportation, Inc., 92-
STA-34 (Sec'y Sept. 24, 1993), the Secretary held that by
requesting an extension of time to file a brief before the
Secretary, Complainant waived the 120-day decisional deadline at
29 C.F.R. § 1978.109(c)(1).
[STAA Digest II F]
ARB REVIEW; PARTIES LACK OF PARTICIPATION
In Wyatt v. Cawood Manufacturing Co., Inc., ARB No.00-037, ALJ No.
2000-STA-5 (ARB Mar. 20, 2000), Tripp v. Con-Way Southern Express, ARB No.
00-019, ALJ No. 1999-STA-43 (ARB Feb. 29, 2000), Korolev v. Sunland Distribution,
Inc., ARB No. 00-010, ALJ No. 1999-STA-28 (ALJ Jan. 11, 2000), Howell v. Yellow
Freight System, Inc., ARB No. 00-011, ALJ No. 1999-STA-32 (ALJ Jan. 11, 2000), and
Porter v. OTRX, Inc., ARB No. 00-005, ALJ No. 1999-STA-35 (ALJ Jan. 11, 2000), the
ALJ had issued a recommended decision, an order of dismissal, or an order approving
settlement. Pursuant to 29 C.F.R. §109(c)(2) (1997), the Board issued a briefing schedule
and the parties were invited to submit briefs in support of or in opposition to the ALJ's decision.
Because neither party submitted briefs, the Board adopted the ALJ's decision and issued a Notice
of Case Closing.
TIME PERIOD FOR ISSUANCE OF SECRETARY'S FINAL DECISION AND
ORDER; TOLLING
[STAA Digest II F]
Although 29 C.F.R. § 1978.109(c) provides that a final
decision and order will be issued by the Secretary in the STAA
whistleblower proceeding within 120 days after issuance of the
decision and order of the ALJ, the Secretary in Caimano v.
Brink's, Incorporated, 95-STA-4, slip op. at 2 n.1 (Sec'y
Jan. 26, 1996), held that the time period was tolled where the
decision had been issued expeditiously, but beyond the 120 day
period, where during the interim between issuance of the ALJ's
decision and the Secretary's decision there had been a 17 day
suspension of operations by the Department of Labor and four days
of closure due to blizzard conditions in Washington D.C.
II.F. 120 days for Secretary's decision
Four employees refused to drive the company's trucks during a
hazardous ice storm. Employer paid the drivers their regular
compensation for the trip, but refused to pay for their overnight
layover. Employees filed complaints with the Secretary of Labor
arguing that Employer violated section 405(b) of STAA. Employer
argued that because the Secretary issued her final decision more
than 120 days after the conclusion of the evidentiary hearing,
the drivers lose their rights to assert their discrimination
claim. The court held that the regulatory time restrictions in
STAA directory and not jurisdictional in nature. The court
recognized the need for expeditious consideration and disposition
of complaints under the STAA, but did not find that Employer
suffered any prejudice as a result of the Secretary's two day
delay. Roadway Express, Inc. v. Dole, 929 F.2d
1060, 1066-67 (5th Cir. 1991).
II.F 120 Day time limitation for Secretary's
decision
In Long v. Roadway Express, Inc., 88-STA-31 (Sec'y
Mar. 9. 1990), the Secretary issued a Final Decision and Order
122 days after the conclusion of the hearing. The Respondent
argued that since the regulations provide for the issuance of a
Secretary's decision within 120 days, the decision was untimely
and therefore, not appropriate for the ALJ's Decision and Order
on Remand. Additionally, Respondent contended that it was
prejudiced by the delay.
The Secretary held that the time constraint's of section 2305 are
directory in nature and "[f]failure to meet these
requirements does not invalidate the action by the ... Secretary.
The Secretary noted that in analogous situations, Federal courts
have upheld the Secretary of Labor's construction of time limits
as "directory" rather than "mandatory" since
the Secretary's interpretations are entitled to great weight and
are controlling if reasonable. Marshall v. N.L. Industries,
Inc., 618.F.2d 1220, 1224 (7th Cir. 1980). Finding that
interpreting the time limit provision as directory "clearly
serves the remedial purposes of [OSHA]," id.,
and that the employer had failed to establish that it had been
prejudiced by the Secretary's failure to meet the statutory time
limit, the court held that the statutory limit did not bar the
action.
In Long, the Secretary found that the Respondent had not
established prejudice by the two day delay and held that the
prior Final Decision and Order was therefore appropriate.
II G 1 Supplemental decision
and order
permissible
In Ass't Sec'y & Dougherty v. Bjarne Skjetne, Jr. d/b/a
Bud's Bus Service, 94-STA-17 (Sec'y Mar. 16, 1995), the
ALJ had withheld issuing a recommended order regarding payment to
one of the two Complainants, because that Complainant had not
submitted proper employment documentation (the ALJ did determine
a period of back wages of two months). The Secretary did not
disapprove this procedure, but indicated in his Decision and
Order that should the ALJ issued a supplemental order within 30
days of the date of the Secretary's decision and order, it would
be considered as a new recommended decision and order.
II.G.1. ALJ decisions in STAA are recommended
ALJ decisions in STAA cases are "recommended"
decisions. Although 29 C.F.R. § 1978.109 does not label
them as such, that section requires that the final decision and
order be issued by the Secretary, 29 C.F.R. § 1978.109(c),
and stays all portions of the ALJ's order (except for an order of
reinstatement) "pending review by the Secretary." 29
C.F.R. § 1978.109(b). Under the Administrative Procedure
Act, 5 U.S.C. § 557(b), a decision which does not become
final without further agency proceedings is a
"recommended" decision.
The fact that the ALJ's order of reinstatement is immediately
effective does not cloak the ALJ's decision with finality. Such
an order serves the same purpose as the Secretary's preliminary
order of reinstatement issued prior to the hearing -- namely, to
temporarily protect the employee pending completion of the review
process.
Moravec v. HC & M Transportation, Inc., 90-STA-
44 (Sec'y Jan. 6, 1992).
[Editor's note: Despite the language of this case that all
decisions in STAA cases are "recommended," the
Secretary has indicated that a order dismissing a STAA proceeding
based on withdrawal by the complainant is a final order. See,
e.g., Shown v. Wilson Truck Corp., 92-STA-6 (Sec'y Apr. 30,
1992) (citing 29 C.F.R. § 1978.111(c); ALJ had issued a
recommended order of dismissal).]
II G 2 Revised recommended
order not
permissible
In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y
Mar. 16, 1995), the Secretary held that an ALJ does not have the
authority to issue a revised recommended order concerning the
same issues covered by an earlier recommended decision pending
before the Secretary. In Dutile, the ALJ had
revised the recommended award of benefits based on a motion to
reconsider.
Based on the inability to ascertain the exact amount of benefits
due based on the record before the Secretary, however, the matter
was remanded for a reopening of the record.
[STAA Digest II G 2]
SETTLEMENTS; AUTOMATIC REVIEW PROCEDURE ENUNCIATED BY ARB APPEARS TO HAVE OVERRULED, SUB SILENTIO, EARLIER AUTHORITY OF THE SECRETARY OF LABOR
In Fraley v. Transervice Logistics, Inc., 2005-STA-11 (ALJ June 28, 2005), the ALJ issued a Decision and Order Recommending Approval of Settlement Agreement. The ALJ observed that the ARB had ruled that such ALJ orders are subject to the automatic review provisions of the STAA and the STAA regulations, but that such rulings seemed to have overruled, sub silentio, the Secretary of Labor's holdings in Shown v. Wilson Truck Corp., 1992-STA-6 (Sec'y Apr. 20, 1992) and Creech v. Salem Carriers, Inc., 1988-STA-29 (Sec'y Sept. 27, 1988).
STIPULATION OF ISSUES NOT SETTLEMENT; ARB MUST ISSUE FINAL ORDER
[STAA Digest II G 2]
In Caimano v. Brink's, Inc.,
95-STA-4 (ARB Aug. 14, 1996), the Secretary had remanded the matter to the ALJ for a
recommendation on Complainant's "complete and specific remedy." On remand, the
ALJ issued an "Order Affirming Settlement". The Board noted that the ALJ's order
did not dispose of the matter because the agreement entered into by the parties was merely a joint
stipulation concerning the Complainant's remedy. One of the stipulations entered into by the
parties was that if the Secretary's decision was reversed on appeal and all appellate remedies had
been exhausted, the other stipulations regarding the remedy would have no force or effect.
II G 2 Settlement on remand
In Earwood v. Dart Container Corp. of Georgia, 93-
STA-16 (ALJ Apr. 26, 1995), the ALJ approved a settlement
concerning costs and expenses. Although the case was on remand
from the Secretary, the ALJ concluded that he had the authority
to render a final decision in the matter. See 29 C.F.R.
§ 1978.111(d)(2).
In a similar situation in Nolan v. AC Express, 92-
STA-37 (ALJ Apr. 24, 1995), however, the ALJ concluded that given
the prior litigation in the matter, she would forward the matter
to the Secretary for issuance of a final decision on the
settlement. The ALJ thoroughly reviewed the settlement in a
recommended decision. The Secretary thereafter issued an order
approving the settlement. Nolan v. AC Express, 92-
STA-37 (Sec'y June 28, 1995). The Secretary stated that either
the ALJ or the Secretary has the authority to approve the
settlement of STAA complaint, but then rather than adopting the
ALJ's recommended order, reviewed the settlement de novo.
II G 2
As to the finality of an ALJ's order regarding a settlement,
see X A 3.
II.G.3. Withdrawal of complaint; ALJ
should reinstate and affirm
Assistant Secretary's
findings; order is
final
The STAA regulations at 29 C.F.R. § 1978.111(c) provide that
if a party files a written withdrawal of his objections,
"[t]he judge or the Secretary, as the case may be, shall
affirm any portion of the findings or preliminary order with
respect to which the objection was withdrawn." Where the
complainant filed a letter with the ALJ withdrawing his
"complaint," this letter constituted a withdrawal of
his objections, see Snow v. TNT Red Star Express, Inc.,
91-STA-44 (Sec'y Mar. 13, 1992), slip op. at 2-3, and the ALJ
should have affirmed the preliminary findings, by which the order
of dismissal would have become the final administrative order in
the case. Because the ALJ issued a Recommended Order of
Dismissal, the Secretary, in the interest of administrative
efficiency, treated complainant's withdrawal as occurring before
her, reinstated and affirmed the Assistant Secretary's findings,
and "denied" the complaint. Shown v. Wilson
Truck Corp., 92-STA-6 (Sec'y Apr. 30, 1992).
II.G.3. Withdrawal of STAA complaint before ALJ
Since neither the STAA nor the implementing regulations at 29
C.F.R. Part 1978 (1987) provide for the withdrawal of complaints
by an individual complainant, it is error to allow a complainant
to withdraw his complaint and order dismissal of the complaint.
Rather, section 1987.111(c) permits a party to withdraw
objections to the Secretary's preliminary findings or preliminary
order at any time before the findings or order become final.
When such withdrawal occurs before the ALJ or the Secretary, it
is required that an order be issued affirming "any portion
of the findings or preliminary order with respect to which the
objections was withdrawn." 29 C.F.R. 1987.111(c). If the
case is before the ALJ, the ALJ's order becomes the final
administrative order in the case, and there is no need for
Secretarial review of the ALJ's order. Underwood v. Blue
Springs Hatchery, 87-STA-21 (Sec'y Sept. 23, 1987) (order to
show cause).
Creech v. Salem Carriers, Inc., 88-STA-29 (Sec'y
Sept. 27, 1988).
II.G.3. ALJ's order is final
Where prior to the scheduled hearing Complainant submitted a
letter withdrawing his request for a hearing and his complaint
under the STAA, the ALJ noted that pursuant to 29 C.F.R. §
1978.111(c), the withdrawal had the effect of affirming the
Regional Administrator's finding the complaint lacked merit and
dismissal of the complaint. The Office of Administrative Appeals
issued a Notice of Case Closing advising the parties "that
the case is closed pursuant to the ALJ's final order."
Hall v. Yellow Freight Systems, 93-STA-24 (Sec'y
July 1, 1993).
II.G.4. Finality of ALJ dismissal
In Yocum v. National Steel & Tube Distributors,
Inc., 89-STA-19 (ALJ May 7, 1993), the ALJ dismissed the
case based on failure to prosecute and abandonment of the request
for a hearing by the Complainant. In Yocum, two
prior hearing had been scheduled by different ALJs. The first
hearing was rescheduled because no representative for the
Respondent attended. The Complainant failed to appear at the
second hearing, and his response to the ALJ's order to show cause
was that the Respondent was in bankruptcy. The case was
continued on March 1, 1991. On April 19, 1993, a third ALJ
issued an order to show cause why the claim should not be
dismissed. The ALJ's attempts to contact the Complainant by
certified mail were unsuccessful, and based on the Complainant's
failure to attend the second scheduled hearing, the failure to
maintain contact with the OALJ, and the failure to respond to the
final order to show cause, the ALJ dismissed pursuant to 29
C.F.R. § 18.39(b) and Rule 41(b) of the Federal Rules of
Civil Procedure (as made applicable by 29 C.F.R. § 18.1).
In Yocum v. National Steel & Tube Distributors,
Inc., 89-STA-19 (Sec'y July 1, 1993) (notice of case
closing), the Office of Administrative Appeals stated that the
ALJ's decision was final, citing 29 C.F.R. § 18.39(b).
II.G.4. Failure to appear or participate, finality of
ALJ's order
In an STAA case where the ALJ found that Complainant and his
counsel did not appear for a scheduled hearing, did not maintain
contact with the ALJ's office, and did not respond to the ALJ's
order to show cause why the complaint should not be dismissed,
the ALJ's decision was final. See 18 C.F.R. §
18.39(b). Yocum v. National Steel & Tube Distributors,
Inc., 89-STA-19 (Sec'y July 1, 1993).
[STAA Digest II H]
SCOPE OF ARB JURISDICTION; JURISDICTION OVER STAA COMPLAINT DOES NOT PROVIDE THE ARB JURISDICTION OVER COMPLAINTS ARISING UNDER THE JURISDICTION OF OTHER AGENCIES; SUCH MATTERS, HOWEVER, MAY PROVIDE RELEVANT EVIDENCE REGARDING MOTIVE
In Coates v. Southeast Milk, Inc., ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the ARB rejected the Complainant's contention that once the ARB gained jurisdiction over his STAA complaint, it also gained jurisdiction over all of the complaints he lodged against the Respondent, such as unlawful interference with First Amendment rights, the right to engage in concerted activities under the FLRA, and so forth. The Board observed that, other than the STAA complaint, the determination of whether the other complaints had merit was within the jurisdiction of other agencies, and that the Complainant was "simply wrong" that the ARB's jurisdiction over the STAA complaint gave it jurisdiction over the other complaints. The ARB, however, noted that to the extent that evidence of other interactions with the Respondent shed light on the Respondent's reasons for firing the Complainant, they were relevant to the issue of motive.
[STAA Whistleblower Digest II H 1]
MOOTNESS; WARNING LETTER THAT NO LONGER HAD ANY DISCIPLINARY EFFECT UNDER THE APPLICABLE COLLECTIVE BARGAINING AGREEMENT
In Agee v. ABF Freight Systems, Inc., ARB No. 04-182, ALJ No. 2004-STA-40 (ARB Dec. 29, 2005), the Board dismissed the complaint finding that it could not redress the Complainant's alleged injury from a warning notice for excessive absenteeism that no longer had any disciplinary or other effect under the applicable collective bargaining agreement. The Complainant had alleged that the warning notice violated a federal motor carrier safety regulation that prohibits motor carriers from requiring truck drivers to drive while likely to be impaired through fatigue or illness. The Board found that the Complainant had not shown that a § 31105 complaint based on a written notice issued pursuant to the local bargaining agreement in effect in 2003 necessarily evades review or that it is reasonably likely that the Respondent will issue such a notice to him in the future. Moreover, the Board held that neither the Complainant's attorney fees nor his request for injunctive relief preserved the case from mootness.
II H 1 Mootness doctrine
Petitioner had reprimanded an employee for engaging in a
protected activity. Although the verbal warning was removed from
the employee's record one year later and would not be considered
in any future disciplinary actions, the Secretary found the
controversy "capable of repetition, yet evading
review," and that Petitioner had violated the employee
protection provision of the STAA.
The Sixth Circuit identified an exception to mootness in limited
situations when 1) the challenged action is too short to be fully
litigated prior to its cessation or expiration, and 2) there is a
reasonable expectation that the same complaining party would be
subjected to the same action again. The court found insufficient
evidence to substantially support a reasonable expectation that
the action would recur. Because the issue was moot and unlikely
to recur, the court remanded the case with instructions to vacate
the Secretary's final order and to dismiss the complaint.
Thomas Sysco Food Services v. Martin, 983 F.2d 60
(6th Cir. 1993).
II.H.1. Complaint Rendered Moot by Employer's Internal
Personnel Procedures Making it Impossible for
Alleged Action to Adversely Affect Complainant
May, Nonetheless, Be Adjudicated
Complainant, a truck driver, was issued a verbal warning for
missing a workday in violation of the employer's attendance
policy. The cause of complainant's absence was a medical
condition and advice from his physician not to operate a motor
vehicle. This was found to be protected activity. Nonetheless,
at the time of the hearing, the nature of the employer's
attendance policy rendered the verbal warning and unexcused work
absence expunged from complainant's work record. Since no
adverse consequences resulted from the employer's adverse action,
the ALJ dismissed the complaint as failing to present a case or
controversy and, therefore, moot.
Observing that the constitutional "case or controversy"
requirement did not bind the administrative agency forum, the
Secretary concluded that the matter should be adjudicated,
notwithstanding the arguably moot nature of the case. It was
determined that the case presented facts "capable of
repetition, yet evading review". Finding it appropriate to
settle any uncertainty in potential future cases, the Secretary
entered an order on the merits, finding in favor of complainant.
Curless v. Thomas Sysco Food Service, 91-STA-12
(Sec'y Sept. 3, 1991).
II.H.1. Authority of the Department of Labor to rule on
moot controversies
In Thomas Sysco Food Services v. Martin, 1993 U.S.
App. LEXIS 239 (6th Cir. 1993), the court reversed the
Secretary's decision in Curless v. Thomas Sysco Food
Service, 91-STA-12 (Sec'y Sept. 3, 1991), which had rejected
the finding of the ALJ that no case or controversy existed.
In Curless, the Complainant received a verbal warning for
absence from work, which was later removed from his personnel
file and could not be used as the basis for any subsequent
disciplinary action. The ALJ noted that all the relief to which
the Complainant was entitled had been awarded prior to the
convening of the evidentiary hearing, and that this was not a
case in which the "capable of repetition, yet evading
review" exception to the mootness doctrine applied, because
any subsequent repetitions would not evade review. Curless v.
Thomas Sysco Food Service, 91-STA-12 (ALJ May 7, 1991), slip
op. at 8-9.
The Secretary concluded that administrative agencies are not
bound by the "case or controversy" restrictions imposed
on Article III courts, and decided the case on the merits because
the Respondent's absenteeism policy was ongoing. Sec'y slip op.
at 4-7.
The Sixth Circuit found that the Secretary's conclusion that
there was a reasonable expectation that the action may recur was
not supported by substantial evidence.
[Editor's note: The Sixth Circuit did not focus on whether case
or controversy restrictions apply to agency adjudications.]
II.H.1. Authority of agency to rule on moot issue;
ongoing policy of employer
"Administrative [proceedings are] not bound by the
constitutional requirement of a 'case or controversy' that limits
the authority of article III courts to rule on moot issues."
Climax Molybdenum Co. v Secretary of Labor, 703 F.2d 447,
451 (10th Cir 1983).
An agency, may within its discretion, issue a declaratory order
to remove uncertainty so long as it is properly guided by the
policies underlying the article III case or controversy
requirement. In the article III context, jurisdiction on the
ground that a dispute is "capable of repetition, yet evading
review" commonly vests where (1) the challenged action is
too short in duration to be litigated fully prior to its
expiration and (2) there is a reasonable expectation that the
action complained of will be repeated. Thus, where an employers
absenteeism scheme penalizes an employee by giving him a warning
in his file for refusing to work in spite of the fact that the
refusal constitutes protected activity, and where that policy is
ongoing such that it can reasonably be expected that the employer
will be subject to similar proceedings in the future, then, even
when the employer has expurgated complainant's record of the
warning, the case need not be dismissed for mootness.
Curless v. Thomas Sysco Food Serv., 91-STA-12
(Sec'y Sept. 3, 1991).
II H 2 Deferral to findings of Assistant
Secretary
See
Division III C.
II H 3 Adverse action taken
after complaint
filed
In Nolan v. A.C. Express, 93-STA-38 (Sec'y May 13,
1994), the Secretary indicated that an adverse action taken
against the complainant after the filing of the complaint was not
at issue.
Slip op. at 3 n.1.
[STAA Digest II H 4]
SCOPE OF ARB REVIEW; IN STAA
CASES, ARB IS REQUIRED TO EXAMINE ALJ'S DECISION EVEN IF THE PARTIES DO NOT
FILE APPELLATE BRIEFS OR FILE BRIEFS THAT DO NOT IDENTIFY THE DISPOSITIVE LEGAL
ISSUES
In Minne v. Star Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the ARB wrote:
The regulations implementing the STAA require us to review every ALJ decision
issued under Section 109(a), even if no party files a brief. Thus, these
regulations require us to examine the ALJ's decision even if the parties either
do not file briefs upon appeal or file briefs that do not identify the
dispositive legal issues. In examining the ALJ's decision, we review his legal
conclusions de novo, and his factual findings under the substantial evidence
standard.
USDOL/OALJ Reporter at 7-8 (footnotes omitted).
[STAA Digest II H 4]
HEARSAY; ARB REVIEWS ALJ'S
ADMISSION OR EXCLUSION OF HEARSAY UNDER A STANDARD OF "DE NOVO" REVIEW FOR AN
"ABUSE OF DISCRETION"
In Wainscott v. Pavco
Trucking, Inc., ARB No. 05-089, ALJ No. 2004-STA-54 (ARB Oct. 31,
2007), the Complainant objected to the admission of a customer bill of lading
and a cylinder tank check-in control on the ground, inter alia, that a proper
foundation had not been laid because the Respondents' operations manager did
not have first-hand knowledge, and because the information was allegedly
irrelevant and contradictory. The ARB noted that the STAA regulations specify
that the OALJ Rules of Practice at 29 C.F.R. Part 18 apply, and stated that
under those rules hearsay is inadmissible. However, the ARB stated that it
conducts de novo review for an abuse of discretion of an ALJ's decision to
admit or exclude hearsay evidence. Because the operations manager identified
and described the two documents, and explained that he was in charge of them,
the ARB found that he was qualified to establish the foundation for their
admission, citing 29 C.F.R. § 18.803(6) (excepting records maintained "in the
course of a regularly conducted business activity" from the general rule
against admission of hearsay evidence). The documents were also relevant to
the issue of whether the Complainant was hauling HAZMAT materials when he left
his trailer in an unauthorized location.
[STAA Whistleblower Digest II H 4]
ARB'S STANDARD OF REVIEW; ALJ'S IMPOSITION OF SANCTIONS UNDER RULE 18.6(d)(2)
The ARB applies an abuse discretion standard when reviewing an ALJ's imposition of sanctions under 29 C.F.R. § 18.6(d)(2). Rule 18.6(d)(2) provides that if a party fails to comply with discovery or other orders of the ALJ, the ALJ may impose sanctions such as drawing adverse inferences and deeming factual matters to be admitted. Waechter v. J.W. Roach & Sons Logging & Hauling, ARB No. 04-183, ALJ No. 2004-STA-43 (ARB Jan. 9, 2006).
[STAA Whistleblower Digest II H 4]
ARB STANDARD OF REVIEW; ALJ'S DISCOVERY SANCTION REVIEWED UNDER ABUSE OF DISCRETION STANDARD
An ALJ's imposition of discovery sanctions is reviewed by the ARB under an abuse of discretion standard in an STAA whistleblower appeal. Cefalu v. Roadway Express, Inc., ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB Jan. 31, 2006).
II.H.4. Prior to interim
rules, Secretary's review
was de novo
In Waters v. Transport, Inc., 84-STA-8 (Sec'y Oct.
24, 1984), Respondent contended that once an ALJ issues a
decision in an STAA case, the Secretary must accept it if it is
supported by substantial evidence, is not irrational, and is in
accordance with law. The Secretary stated that the
Administrative Procedure Act, 5 U.S.C. § 557 provides that
"[o]n appeal from or review of the initial decision, the
agency has all powers which it would have in making the initial
decision except as it may limit the issues on notice or by
rule." Thus, not having limited the issues by notice or by
rule, the Secretary concluded that he had the authority to
conduct a de novo review of all issues raised in the proceeding.
[Editor's note: Interim final rules to govern STAA whistleblower
cases were not published in the Federal Register until November
21, 1986. Final rules were not published until November 25,
1988. Those rules provided that the ALJ's order of reinstatement
was effective immediately, but all other portions of the ALJ's
order are stayed pending the Secretary's review. The ALJ's
findings of fact are conclusive if supported by substantial
evidence on the record considered as a whole. See 53 Fed. Reg.
47676 (Nov. 25, 1988)]
[STAA Digest II H 4]
ARB BRIEFING REQUIREMENTS; DISCRETION TO CONSIDER UNTIMELY BRIEF; COMPLAINANT "OVER THE ROAD" WHEN ALJ DECISION SERVED
In Forrest v. Dallas and Mavis Specialized Carrier Co., ARB No. 04-052, ALJ No. 2003-STA-53 (ARB July 29, 2005), the ARB exercised its discretion to consider the pro se Complainant's untimely brief where he did not receive the ALJ's recommended decision in a timely manner because the Complainant was working "over the road" at the time the ALJ's decision was served.
[STAA Whistleblower Digest II H 4]
PRO SE LITIGANT; ASSISTANCE FROM THE TRIBUNAL IS NECESSARILY LIMITED
In explaining how it would afford liberal construction in the review an appeal of a pro se complainant in a STAA whistleblower complaint, the ARB nevertheless stated in a footnote:
We recognize that while adjudicators must accord a pro se complainant "fair and equal treatment, [such a complainant] cannot generally be permitted to shift the burden of litigating his case to the [adjudicator], nor to avoid the risks of failure that attend his decision to forgo expert assistance." Griffith v. Wackenhut Corp., ARB No. 98-067, ALJ No. 97-ERA-52, slip op. at 10 n.7 (ARB Feb. 29, 2000), quoting Dozier v. Ford Motor Co., 707 F.2d 1189, 1194 (D.C. Cir. 1983). Affording a pro se complainant undue assistance in developing a record would compromise the role of the adjudicator in the adversary system. See Young, slip op. at 9, citing Jessica Case, Note: Pro Se Litigants at the Summary Judgment Stage: Is Ignorance of the Law an Excuse?, 90 KY. L. J. 701 (2002).
Cummings v. USA Truck, Inc., ARB No. 04-043, ALJ No. 2003-STA-47 (ARB Apr. 26, 2005).
[STAA Whistleblower Digest II H 4]
DISMISSAL FOR CAUSE; STANDARD OF REVIEW BY ARB
On reviewing an ALJ's dismissal of a STAA complaint made in accordance with FRCP Rule 41(b) for failure to prosecute or to comply with the federal rules or any order of the court, the ARB uses an abuse of discretion standard in contrast to the substantial evidence standard of review for an ALJ's factual determinations and de novo standard of review for ALJ's conclusions of law. Howick v. Campbell-Ewald Co., ARB Nos. 03-156 and 04-065, ALJ Nos. 2003-STA-6 and 2004-STA-7 (ARB Nov. 30, 2004).
[STAA Whistleblower Digest II H 4]
JURISDICTION OF ARB TO CONSIDER A PETITION FOR MANDAMUS
In Somerson v. Eagle Express Lines Inc., ARB No. 04-046, ALJ No. 2004-STA-12 (ARB May 28, 2004), the Complainant sought a writ of mandamus from the ARB based on the contention that OALJ had refused to hold a hearing on his STAA complaint and was violating his and his counsel's First Amendment rights. The ARB ordered the Complainant to show cause why the petition should not be dismissed for lack of jurisdiction. The Complainant's response was to argue that OALJ was violating a statutorily mandated deadline. The ARB found that this response confused the basis for the request for a writ of mandamus with the issue of the Board's jurisdiction to consider such a petition. Based on the failure of the Complainant to show cause (and not deciding whether the ARB had the authority to issue a Writ of Mandamus), the ARB denied the motion. The ARB also denied a motion to compel OALJ to cease and desist from violating First Amendment rights because the Complainant had failed to establish the ARB's authority to issue such a writ in the absence of a decision by an ALJ.
[Editor's note: The scheduling of a hearing on the merits of the Complainant's STAA complaint had been stayed pending a section 18.34(g) hearing on the qualifications of his counsel].
[STAA Whistleblower Digest II H 4]
ADMINISTRATIVE REVIEW BOARD; REVISION OF DELEGATION
On October 17, 2002, the Office of the Secretary published Secretary's Order 1-2002, addressing the delegation of authority and assignment of responsibility to the Administrative Review Board. 67 Fed. Reg. 64272 (Oct. 17, 2002). This Order replaces Secretary's Order 02-96, and provides modifications including, an increase in the total membership to a maximum of five members, clarifications of procedural authority, and codification of the ARB's location in DOL organizational structure.
[STAA Digest II H 4]
STANDARD OF REVIEW
The following is an excerpt from Scott v.
Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 @ 8 (ARB July
28, 1999) (case citations omitted):
- "Pursuant to the regulation implementing the STAA at 29
C.F.R. §1978.109(c)(3) (1998), if the factual findings rendered by the ALJ are
supported by substantial evidence on the record considered as a whole, the Administrative
Review Board is bound by those findings.
- Pursuant to the Administrative Procedure Act, in reviewing the
ALJ's conclusions of law, the Board, as the designee of the Secretary, acts with "all the
powers [the Secretary] would have in making the initial decision. . . ." 5 U.S.C.
§557(b), . . .; see 29 C.F.R. §1978.109(b) (1998). Accordingly, the Board
reviews the ALJ's conclusions of law de novo."
To the same effect: Schulman v.
Clean Harbors Environmental Services, Inc., ARB No. 99-015, ALJ No.
1998-STA-24 (ARB Oct. 18, 1999)
II H 4 CREDIBILITY; ALJ'S OPPORTUNITY TO OBSERVE DEMEANOR
The ALJ is in the best position to evaluate the demeanor of
witnesses, since he or she sees them in person and hears them
testify. Where the ALJ's credibility determinations are based on
a fair reading of the record and are supported by an
"articulate, cogent, and reliable analysis," the
Secretary will accept them. Williams v. Southern Coaches,
Inc., 94-STA-44 (Sec'y Sept. 11, 1995).
II.H.4. Standard of review
In Palmer v. Western Truck Manpower, 85-STA-6
(Sec'y Jan. 16, 1987), the Secretary announced that he would use
a "substantial evidence" and "in accordance with
law" standard of review for all cases covered under then
newly promulgated regulations. See 51 Fed. Reg. 42091
(1986) (See § 1978.109(c)(3); regulations were effective
December 22, 1986).
Where the standard of review of an ALJ decision is whether the
findings of fact are supported by substantial evidence in the
record as a whole, the ALJ's credibility determinations will not
be disturbed by the reviewing authority unless they
"conflict with a clear preponderance of the evidence"
or "are 'inherently incredible and patently
unreasonable.'" Cordero v. Triple A Machine Shop,
580 F.2d 1331, 1335 (9th Cir. 1978).
II.H.4.a. Standard of review of ALJ's
determinations
In Surface Transportation Assistance Act proceedings, the
Secretary is required to consider conclusive the administrative
law judge's factual findings if supported by substantial
evidence. Roadway Express, Inc. v. Dole, 929 F.2d
1060,1063 (5th Cir. 1991) (citing 29 C.F.R. §
1978.109(c)(3)).
[STAA Whistleblower Digest II H 4 a]
SUBSTANTIAL EVIDENCE
In Dalton v. U.S. Dept. of Labor, 2003 WL 356780 (10th Cir. Feb, 19, 2003) (unpublished) (case below Dalton v. Copart, ARB No. 01–020, ALJ No. 1999-STA-46)), the 10th Circuit reversed the ARB's order dismissing Complainant's STAA complaint, where the court found that substantial evidence supported dispositive findings by the ALJ, see 29 C.F.R. § 1978.209(c)(3) -- specifically, Complainant's "reasonable apprehension" of serious injury with respect to cables attached to winches on the hauler. The ALJ's findings were based largely on credibility determinations, and the court faulted the ARB for not explaining why it was necessary for the ALJ to have credited certain witnesses. Although there was strong impeaching evidence in the record in regard to Complainant's subjective fear of danger from the condition of the cables, the court found that it was not so damning as to overwhelm other evidence in his favor.
[STAA Whistleblower Digest II H 4 a]
SUBSTANTIAL EVIDENCE STANDARD OF REVIEW OF ALJ'S FINDINGS OF FACT
In Dalton v. Copart, Inc., ARB No. 01-020, ALJ No. 1999-STA-46 (ARB July 19, 2001), the ALJ found that Complainant had refused to drive his truck because he had a reasonable apprehension that to do so would cause serious injury to himself or to the public. Upon review, the ARB reversed, largely based on a very different view of the facts, despite the substantial evidence level of review of the ALJ's factual findings in a STAA case. Applying a reasonable person standard to the STAA work refusal based on a reasonable apprehension of accident, injury or serious impairment to health provision at section 31105(a)(2), the ARB found that substantial evidence did not support the ALJ's findings of fact. In this regard, the Board stated:
In so ruling, we are mindful that the substantial evidence standard of review places a heavy burden upon us. This Board is not free to engage in an independent evaluation of the facts. "If there [is] substantial evidence [in the record] to support the ALJ's findings," it would constitute reversible error for this Board to fail to treat them as conclusive. Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995). Accord Brink's Inc. v. Herman, 148 F.3d 175, 178 (2d Cir. 1998). However, the substantial evidence standard does not require us to affirm the ALJ's findings of fact merely because there is evidence in the record which would justify them, without taking into account other contrary evidence in the record. Rather, as the Supreme Court held in Universal Camera v. NLRB, 340 U.S. 474, 488 (1951), "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." With these principles in mind we evaluate all the evidence in the record with regard to the reasonableness of Dalton's apprehension of serious injury.
Slip op. at 7-8 (footnote omitted). Essentially, the ARB found that Complainant's fears were either uninformed or not credible.
[STAA Digest II H 4 a]
SUBSTANTIAL EVIDENCE; ALJ'S FINDINGS OF FACT CONCLUSIVE IF
SUPPORTED BY SUBSTANTIAL EVIDENCE
In United Parcel Service, Inc. v. Administrative Review Board, 1998
WL 739812 (6th Cir. Oct. 6, 1998)(unpublished)(case below 1994-STA-16), the Sixth Circuit
found that although a Department of Labor regulation (29 C.F.R. § 1978.109(c)(3))
required the Secretary to accept the ALJ's factual findings as conclusive if supported by
substantial evidence, Secretary Reich simply ignored the ALJ's key findings. The Sixth Circuit
examined the record and pointed out a number of critical findings of the ALJ, supported by
substantial evidence, that had been ignored by the Secretary, such as his finding that
Complainant was not a credible witness, Respondent's witnesses were credible, Complainant's
behavior was subject to discharge without prior notice, and most importantly, Complainant failed
to establish that his discharge was for any reason other than his own dishonesty.
[STAA Digest II H 4 a]
SUBSTANTIAL EVIDENCE; ALJ'S FINDINGS OF FACT CONCLUSIVE IF
SUPPORTED BY SUBSTANTIAL EVIDENCE
In BSP Trans, Inc. v. USDOL,
1998 WL 754697 (1st Cir. Nov. 3,
1998)(case below 1995-STA-29), the First Circuit found, after reviewing the record in its
entirety, that the ALJ 's finding that there was no connection between Complainant's alleged
complaints about violations of the DOT regulations and his termination from employment, was
supported by substantial evidence and was therefore conclusive. Thus, the court set aside the
ARB's decision that had made "corrected" findings. The court in particular noted
that the ALJ had found that not a single witness had corroborated Complainant's testimony,
while three of Respondent's witnesses each testified that DOT regulations never came up in their
conversations with Complainant. The court noted that, while a reasonable mind could have
believed Complainant but not the other witnesses, the ALJ had the advantage of seeing and
hearing the witnesses. The court noted that the ARB drew a contrary inference from one factor
about the case, but found that the possible inference was "scarcely so apparent as to permit
the Board to reject, on a cold record and its own speculation, the ALJ's credibility
determinations."
[STAA Digest II H 4 a]
SUBSTANTIAL EVIDENCE STANDARD OF REVIEW
In Jackson v. Protein
Express, 95-STA-38 (ALJ Mar. 9, 1998), the ALJ explicitly noted in his
recommended decision on remand that the ARB had ignored his credibility findings that all
witnesses had been credible except Complainant. On review, in Jackson v. Protein Express, 95-STA-38
@ 2 (ARB May 29, 1998), Respondent argued that the ARB's remand order should be reversed
because the ARB had failed to treat the ALJ's findings of fact as conclusive as required by 29
C.F.R. § 1978.109(c)(3). The ARB treated Respondent's argument as a motion for
reconsideration, and held that it had not misapplied the regulation because "there were two
crucial points in the original recommended decision of the ALJ on which he either did not make
a specific finding or with respect to which he did not apply the appropriate legal test."
[STAA Digest II H 4 a]
FINDINGS OF FACT; ALJ'S FINDINGS CONCLUSIVE IF SUPPORTED BY
SUBSTANTIAL EVIDENCE
In Brink's, Inc. v. Herman,
No. 96-4162 (2d Cir. June 25, 1998) (available at 1998 WL 337259)(case below 95-STA-4), the
Second Circuit reviewed the Department of Labor STAA whistleblower regulations at 29 C.F.R.
§ 1978.109(c)(3), and found that if there was substantial evidence to support the ALJ's
findings, the Secretary of Labor's refusal to treat them as conclusive was contrary to that
regulation. The court noted that this is so even if the Secretary's decision was also based on
substantial evidence.
The court found that the ALJ's finding that there was no meaningful relationship between
Complainant's complaints at a "speak-out" session and his termination was fully
supported by the record of the hearing. The Secretary had asserted that the ALJ had failed to
address the "complaint clause" issue, and therefore had to make his own findings.
The court, however, found that although the ALJ had not expressly referred to the complaint
clause, he had considered directly the question that arises under this clause -- whether
Complainant was fired because of the complaints he had made. The court, therefore, vacated the
Secretary's findings, and directed entry of an order based on the ALJ's "well-supported
findings...."
The court also reversed the Secretary in regard to findings made by the ALJ under the
"because" clause of the "work refusal" provision of the STAA, holding
that substantial evidence supported the ALJ's finding that, at least following Respondent's offer
to cure the matter complained about, Complainant's safety concern was not objectively
reasonable. The court similarly reversed the Secretary in regard to another because clause issue.
II.H.4.a. Weight of ALJ's factual findings
In a STAA whistleblower case, the ALJ's factual findings are
conclusive if they are supported by substantial evidence on the
record considered as a whole. Taylor v. Broadhead,
91-STA-14 (Sec'y Feb. 11, 1992).
II.H.4.a. ALJ's findings must be supported by
"substantial" evidence
In Perez v. Guthmiller Trucking Co., Inc., 87-STA-
13, (Sec'y Dec. 7, 1988), the Secretary held that in order to be
credited, the ALJ's findings must be supported by substantial
evidence. Citing NLRB v. Columbian Enameling and Stamping
Co., 306 U.S. 300, the Secretary defined substantial evidence
as:
more than a scintilla, and must do more than create a
suspicion of the existence of the fact to be established.
"It means such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion," Consolidated Edison Co. v.
National Labor Relations Board, supra, p. 229,
and it must be enough to justify, if the trial were to a
jury, a refusal to direct a verdict when the conclusion
sought to be drawn from it is one of fact for the jury. See
Baltimore & Ohio R. Co. v. Groeger, 266 U.S. 521,
524; Gunning v. Cooley 281 U.S. 80, 94;
Appalachian Electric Power Co. v. National Labor
Relations Board, supra, 989.
306 U.S. at 300.
II.H.4.a. Adequacy of ALJ's findings
Where the ALJ's findings are adequately explained, are not
irrational or contradicted by undisputed evidence, the Secretary
will not overturn them. See, e.g., Guernsey v. J.E. Nelson
Transportation, 91-STA-24 (Sec'y July 20, 1992), slip op. at
5. Greathouse v. Greyhound Lines, Inc., 92-STA-18
(Sec'y Dec. 15, 1992), slip op. at 3.
II.H.4.a. Deference according ALJ credibility findings;
demeanor v. aspects of testimony
In Moyer v. Yellow Freight System, Inc., 89-STA-7
(Sec'y Oct. 21, 1993), the Secretary rejected the ALJ's
credibility finding regarding one of Respondent's primary
witnesses.
The Secretary noted that there is a distinction between
credibility findings that are based explicitly on demeanor and
those based on aspects of the testimony itself, e.g., internal
inconsistency, inherent improbability, important discrepancies,
impeachment, witness self-interest. Demeanor based finding
"may" be accorded exceptional weight by a reviewing
court. A judge's incantation of "lack of candor" does
not render his or her credibility finding unassailable where it
is conclusory.
The Secretary then found evidence supporting Complainant's
version of the events, concluded that Complainant's testimony was
unwavering and specific, and found that the ALJ's credibility
finding was not supported by substantial evidence.
II.H.4.a. Complainant's testimony alone is insufficient to
support ALJ's finding that an unsafe condition
existed
In Perez v. Guthmiller Trucking Company, Inc., 87-
STA-13 (Sec'y Dec. 7, 1988), the Complainant's employment with
the Respondent was terminated after the Complainant walked off
the job. The Complainant testified that he walked off the job
because of the unsafe condition of the truck. The ALJ credited
the Complainant's testimony over that of the Respondent's
witnesses, who stated that the truck was in safe driving
condition and furthermore claimed that the Complainant quit his
job as he walked off the job site.
The Secretary determined that the ALJ erred in finding the
presence of an unsafe condition based upon the Complainant's
testimony which was unsupported by a driver vehicle inspection
record and contradicted by specific findings of a DOT inspection
report.
[However, it is not necessary for the Complainant to show that
the dangerous condition existed, only that he had a reasonable
belief that the condition existed]
II.H.4.a. ALJ's findings, if supported by substantial
evidence, are conclusive
In an STAA whistleblower case, where the findings of the ALJ are
supported by substantial evidence, they are conclusive, 29 C.F.R.
§ 1978.109(c)(3), and the Secretary will adopt them. See
Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y
Dec. 15, 1992), slip op. at 1-2.
II.H.4.a. Burden of proof; STAA cases
Although the Administrative Law Judge did not explicitly analyze
the issues in terms of the applicable burdens of proof, his
findings supported the conclusion that complainant established a
prima facie case of retaliatory discharge and respondent-employer
failed to articulate a legitimate, nondiscriminatory reason for
its action. Resnikoff v. Albaugh Truck Line Inc.,
91-STA-19 (Sec'y June 28, 1991), citing McGavock v. Elbar,
Inc., 86-STA-5 (Sec'y July 9, 1986) for the applicable burden
of proof in STAA, 49 U.S.C. app. § 2305 cases.
II.H.4.a. ALJ may not discount testimony
without stating reasons
In Lajoie v. Environmental Management Systems,
Inc., 90-STA-31 (Sec'y Oct. 27, 1992), slip op. at 9, the
Secretary rejected, as not supported by substantial evidence, the
ALJ's finding that the complainant had voluntarily quit his
employment. The Secretary cited several cases in which a judge's
wholesale discounting of testimony was found improper where it
was conclusory or contrary to other evidence of record. See
Dorf v. Bowen, 794 F.2d 896, 901-2 (3d Cir. 1986); Kent v.
Schweiker, 710 F.2d 110, 116 (3d Cir. 1983).
II.H.4.a. Deferral to ALJ's findings; when
appropriate
Where an ALJ's findings are adequately explained, are not
irrational or contradicted by undisputed evidence, the Secretary
will not overturn them. Greathouse v. Greyhound Lines,
Inc., 92-STA-18 (Sec'y Dec. 15, 1992) (citing Guernsey
v. J.E. Nelson Transportation, 91-STA-24 (Sec'y July 20,
1992).
[STAA Digest II H 4 b]
SCOPE OF ARB REVIEW;
ALJ'S FINDING ON EXISTENCE OF ADVERSE ACTION IS A LEGAL CONCLUSION WHICH THE
ARB REVIEWS DE NOVO
In Minne v. Star
Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the
Respondent argued that the ALJ's determination that no adverse action had taken
place was a factual determination that the ARB should not disturb because it
was supported by substantial evidence. The ARB disagreed, holding that a
finding on whether there had been adverse action was a legal conclusion subject
to de novo review by the ARB.
II.H.4.b. Secretary may find
violation only in regard
to complaints about which
the respondent has had
sufficient opportunity to
present evidence
Where the letter from OSHA notifying the respondent of the
complainant's complaint referred only to a discharge in
retaliation for not operating his vehicle because of illness (a
section 405(b) issue), the complainant's complaint did not
indicate that he was complaining that the respondent discharged
him for testifying at a safety-related hearing (a section 405(a)
issue), OSHA's findings after the preliminary investigation
characterized the complaint in terms of a section 405(b) issue,
and the complainant's objections to the preliminary finding set
forth only a section 405(b) issue, and under the facts of the
case the respondent could not be found to have impliedly
consented to litigate the issue at the administrative hearing,
the Secretary denied the respondent due process in finding a
violation of section 405(a) and refusing to reopen the
administrative hearing to allow evidence on the section 405(a)
issue. Yellow Freight System, Inc. v. Martin, 954
F.2d 353 (6th Cir. 1992).
[STAA Whistleblower Digest II H 4 b]
ARB STANDARD OF REVIEW OF ALJ'S DETERMINATION THAT COMPLAINANT FAILED TO STATE A CLAIM UPON WHICH RELIEF BE GRANTED IS DE NOVO
In Moore v. U.S. Dept. of Energy, ARB No. 99-094, ALJ No. 1999-CAA-14 (ARB July 31, 2001), the ARB held that a determination that a complainant has failed to state a claim upon which relief can be granted is a legal conclusion. The Board then noted that under the STAA the ARB reviews an ALJ's legal conclusions de novo.
[STAA Whistleblower Digest II H 4 b]
DECLARATORY ORDER; AUTHORITY OF ARB TO ISSUE
In Ass't Sec'y & Bates v. West Bank
Containers, ARB No. 99-055, ALJ No. 1998-STA-30 (ARB Apr. 28, 2000), the
ARB decided on substantial evidence review that Complainant could not succeed on the merits
because Respondent had a legitimate business motive for terminating Complainant's
employment. Nonetheless, it proceeded to address whether Complainant had engaged in
protected activity, citing 5 U.S.C. §554(e), for the proposition that an agency may issue a
declaratory order to terminate a controversy or remove uncertainty. The ARB indicated that the
"[t]he sole purpose of th[e] discussion [of whether the Complainant engaged in protected
activity] is to clarify the process by which OSHA can legitimately express and invoke deference
to its interpretive views of §405(a)(1)(A) during an enforcement proceeding."
II H 4 b Application of harmless error standard under 29
C.F.R. § 18.103
In Moyer v. Yellow Freight System, Inc., 89-STA-7
(Sec'y Aug. 21, 1995), the Secretary applied the harmless error
rule of 29 C.F.R. § 18.103 in reviewing the ALJ's decision
not to admit certain evidence.
II.H.4.b. The ALJ Failed to Sufficiently Discuss the
Bases for Recommending that Complainant's Charges
be Dismissed for Failure to Establish a Causal
Link Between the Protected Activity and Adverse
Action; the Case will be Remanded for Further
Findings
Complainant charged that his employment as a truck driver was
terminated by the employer because of his reports and complaint
to the employer's contractor, the U.S. Postal Service, regarding
the safety and condition of the employer's trucks. The employer
maintained that complainant's discharge was motivated by the need
to reorganize truck routes and consolidate truck drivers; since
complainant was the least senior driver, the employer contended,
his position was terminated. Evidence was presented, however,
showing that the employer had hired another employee shortly
after complainant's discharge.
The ALJ found that complainant had established the elements of
protected activity and adverse action, yet had failed to show the
final element to proving that a violation had occurred -- a
causal link between the two. Alternatively, the ALJ determined
that, if the inference had, indeed, been raised that
complainant's protected activity was the likely reason for the
adverse action, the employer had shown that complainant's
discharge was substantially motivated by lawful, non-
discriminatory reasons and that complainant had not shown that
the employer's reasons were merely a pretext. The Secretary
rejected the ALJ's findings with respect to whether complainant
had engaged in protected activity and on the issue of whether a
causal link had been established. The Secretary remanded for
further findings on these issues and on the alternative issue of
whether the employer had met its burden under a dual motive
analysis. Guernsey v. J.E. Nelson Transportation and Jerry
E. Nelson, 91-STA-24 (Sec'y Feb. 13, 1992).
[STAA Whistleblower Digest II H 4 c]
ARB SCOPE OF REVIEW; ARGUMENTS NOT RAISED BEFORE THE ALJ
Where the Complainant admitted that he did not provide any reason for declining a dispatch prior to his discharge, he failed to demonstrate that he made the Respondent aware of a protected complaint, and his STAA whistleblower complaint therefore failed as a matter of law. On appeal the Complainant argued that even if he did not make a protected complaint to the Respondent on the day of his termination, he had made hours of service and similar complaints in the past, and the ALJ should not have granted summary decision because that protected activity could have factored into the Respondent's decision to discharge him. The ARB declined to address this argument because it had not been raised below. Harris v. Allstates Freight Systems, ARB No. 05-146, ALJ No. 2004-STA-17 (ARB Dec. 29, 2005).
II.H.4.c. Failure to raise issue
at hearing
On appeal before the Secretary, the Respondent in its Memorandum
in Support of Exceptions raised for the first time two new
reasons why the Complainant should not be reinstated. The
Secretary held that those arguments were not raised either at the
hearing, or in the post-hearing brief to the ALJ who had no
opportunity to consider them. The Secretary found that although
the exceptions relate to the ALJ's order that Complainant be
reinstated, these objections were not made when the Respondent
submitted its initial exceptions. The Respondent failed to
submit an initial brief as permitted by the Secretary's order and
did not raise the issue in its lengthy reply brief. The
Secretary concluded that this issue should have been raised at
the hearing before the ALJ and refused to consider it now.
Stone v. Nu-Car Carriers, Inc., 86-STA-16 (Sec'y July 29,
1987).
[STAA Digest II H 4 c]
MOTION FOR RECONSIDERATION OF ARB DECISION; STANDARDS
The standards the ARB applies in consideration of a motion for reconsideration or for relief from judgment are stated in Cummings v. USA Truck, Inc., ARB No. 04-043, ALJ No. 2003-STA-47 (ARB June 30, 2005). The ARB analogized such motions to petitioning for panel rehearing under Rule 50 the FRAP, requesting reconsideration of a final judgment or appealable interlocutory order under FRCP 59 or 60(b), and a motion for relief from a judgment under FRCP 60(b). The Board noted that it looks to 29 C.F.R. § 18.34(c) in considering whether to consider new evidence. In the instant case, the Complainant submitted new evidence on reconsideration, but the Board found that it did not alter the record or the ALJ's determination in regard to whether the Complainant engaged in protected activity under the STAA, and merely raised the same arguments that were considered and rejected by the Board in its prior decision. Thus, the Board declined to reconsider.
[STAA Whistleblower Digest II H 4 c]
REOPENING THE RECORD WHILE MATTER IS ON APPEAL TO THE ARB
The ARB disfavors reopening a closed record. When a party claims to have newly discovered evidence, guidance is found in FRCP 60(b), which provides for relief "from a final judgment, order, or proceeding" based upon "(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial . . .." Fed. R. Civ. P. 60(b)(2). To prevail under this standard, a movant must show that:
(1) the evidence was discovered after trial;
(2) due diligence was exercised to discover the evidence;
(3) the evidence is material and not merely cumulative or impeaching; and
(4) the evidence is such that a new trial would probably produce a different result.
The discovery of impeachment material is not a sufficient basis for reopening the record. Hogquist v. Greyhound Lines, Inc., ARB No. 03-152, ALJ No. 2003-STA-31 (ARB Nov. 30, 2004) (ARB refused to reopen the record where the Complainant failed to show that the evidence was not available at the time of trial; or he merely offered it for impeachment; or he did not persuade the Board that considering it would produce a disposition of the case that would favor the Complainant).
[STAA Whistleblower Digest II H 4 c]
SUPPLEMENTATION OF BRIEF
In Schwartz v. Young's Commercial Transfer, Inc., ARB No. 02-122, ALJ No. 2001-STA-33 (ARB May 9, 2003), the pro se Complainant timely submitted a brief, following numerous extensions. Several months later he submitted a letter seeking to supplement the brief. Citing the fact that the briefing period had ended and the Board's need to manage its docket, the ARB returned the filing to the Complainant.
[STAA Whistleblower Digest II H 4 c]
ISSUE RAISED FOR FIRST TIME AFTER ARB DECISION
In Young v. Schlumberger Oil Field Services, ARB No. 00-075, ALJ No. 2000-STA-28 (ARB May 1, 2003), the ARB had issued a Final Decision and Order on February 28, 2003. On April 2, 2003, Complainant requested further review, specifying with more particularity the nature of the argument in her pro se brief that the ALJ had failed to render adequate assistance, alleging that what she had meant was that the ALJ had acquiesced in evidence tampering by the Respondents legal representative. The ARB found that, without any explanation for the delay in raising this issue, it would decline to further consider the allegation.
[STAA Whistleblower Digest II H 4 c]
CLAIMS FOR DAMAGES INCURRED PRIOR TO HEARING BEFORE ALJ CANNOT
BE RAISED FOR THE FIRST TIME BEFORE THE ARB
In Pettit v. American Concrete Products,
Inc., ARB No. 00-053, ALJ No. 1999-STA-47 (ARB Aug. 27, 2002), the ARB
declined to review Complainant's arguments raising the issue of medical costs incurred because
of the interruption of health insurance coverage. The ARB held that "[c]laims for medical
costs that had been incurred between the time of the Complainant's termination on March 24,
1999, and the hearing before the ALJ should have been raised and litigated by the Complainant
before the ALJ" and that the Complainant could not raise this issue for the first time
before the Board on review. The ARB, however, observed that the ALJ's reinstatement order
became effective immediately upon receipt by the Complainant, pursuant to Section
1978.109(b), and that "[t]he STAA provides that reinstatement entitles the Complainant
'to the former position with the same pay and terms and privileges of employment.' 49 U.S.C.
§31105(b)(3)(A)(ii); see 29 C.F.R. § 1978.104(a)."
[STAA Whistleblower Digest II H 4 c]
AFFIRMATIVE DEFENSES MUST BE TIMELY RAISED BEFORE THE ALJ
In Pettit v. American Concrete Products,
Inc., ARB No. 00-053, ALJ No. 1999-STA-47 (ARB Aug. 27, 2002), the ARB
rejected Respondent's request to remand for a hearing on the issue of mitigation of the
Complainant's damages because failure to mitigate is an affirmative defense that must be
timely raised by a respondent, citing Hobby v. Georgia Power Co., ARB Nos. 98-166, -169, ALJ No. 1990-ERA-30, slip op. at 21-22 and authorities there cited (ARB Feb. 9, 2001) (ERA case). Since the Respondent failed to pursue this issue before the ALJ it could not raise it before the ARB.
[STAA Whistleblower Digest II H 4 c]
ARB REVIEW; EXHIBITS NOT IN RECORD MADE BEFORE ALJ NOT CONSIDERED BY ARB ON REVIEW
Exhibits submitted with a brief to the Board which were not part of the record developed before the ALJ are not considered by the ARB because the Board's decision is "based on the record and the decision and order of the administrative law judge." 29 C.F.R. § 1978.109(c). Stauffer v. Wal-Mart Stores, Inc., ARB No. 00-062, ALJ No. 1999-STA-21 (ARB July 31, 2001).
[STAA Digest II H 4 c]
NEW EVIDENCE PRESENTED TO ARB IN STAA CASE; IF MOTION TO ADMIT IS
GRANTED, CASE MUST BE REMANDED
In Madonia v. Dominick's Finer Foods, Inc., 1998-STA-2 (ARB Jan.
29, 1999), the ARB rejected Complainant's argument that new evidence can be admitted without
remanding the matter to the ALJ. The ARB held that its review of a case must be based on the
record made before the ALJ and on the ALJ's recommended decision and order. 29 C.F.R.
§1978.109(c)(1) (1997). Reliance by the Board on exhibits not in the record before the
ALJ is, therefore, not permitted. Boyd v. Belcher Oil Co., 1987-STA-9, slip op. at 3
(Dep. Sec'y Dec. 2, 1987).
[STAA Digest II H 4 c]
MOTION TO REOPEN/RECONSIDERATION; MISTAKES IN REMAND ORDER;
ALLEGED ATTORNEY MISREPRESENTATION; ISSUE NOT ADDRESSED
Requests to reopen a final decision are disfavored. Jackson v. Protein Express, 1995-STA-38, slip op.
at 2 (ARB May 29, 1998). Reconsideration should be granted only to correct manifest errors of
law or fact or to present newly discovered evidence. Id.; Macktal v. Brown and Root, Inc., 1986-ERA-23
(ARB Nov. 20, 1998).
In Leidigh v. Freightway
Corp., 1987-STA-12 (ARB Dec. 24, 1998), the ARB declined to reopen a case
where:
(1) Although an earlier remand order of the Secretary contained a couple of
misstatements of fact, the ALJ corrected the mistakes in his recommended
decision on remand, and the ARB included the correct statement of the facts in the
Final Decision.
-
(2) Complainant contended that his lawyer "misrepresented" him by
failing to apply STAA Section 405(b), the "refusal to drive"
provision, but a physician's report submitted by Complainant in support of this
assertion was dated five years after the alleged refusal to drive, and, reviewing the
OSHA Administrator's preliminary findings, there was no indication that the
relevant complaint included a refusal to drive element. The ARB noted that it
would not normally rely on the Administrator's findings, but would look to the
record made before the ALJ; however, in the present circumstances, those
findings were the best evidence of the nature of Complainant's complaint.
-
(3) There was no evidence to support Complainant's assertion that he had requested a
leave of absence to correct his medical condition. [Editor's note: apparently this
ground for reopening was based on the theory that this issue should have been
addressed by DOL. The ALJ and the ARB had found that the leave of absence
had been requested for the purpose of getting representation from the union in
regard to Complainant's options upon a facility closing.]
FINDINGS OF FACT; SECRETARY'S AUTHORITY TO RENDER CONCERNING
ISSUE ALJ DID NOT ADDRESS
[STAA Digest II H 4 c]
In Cook v. Guardian
Lubricants, Inc., 95-STA-43 (Sec'y May 1, 1996), the
Secretary found that the ALJ did not address evidence concerning
several pertinent issues. Since evidence had been adduced at the
hearing on those issues, however, the Secretary made findings of
fact on those issues rather than remanding the case. In making
credibility determinations, the Secretary relied upon the
relative consistency of the testimony. Citing, inter
alia, Ertel v. Giroux Brothers Transp., Inc., 88-STA-
24, slip op. at 12 and n.7 (Sec'y Feb. 16, 1989).
II.H.4.c. Scope of issues considered by Secretary
The Secretary may consider whether violations of section 2305 of
the STAA not specifically alleged by the complainant or his
counsel, nor addressed in the Assistant Secretary's preliminary
order, took place. Moravec v. HC & M Transportation,
Inc., 90-STA-44 (Sec'y Jan. 6, 1992).
II.H.4.c. Record for review
In Bolden v. Distron, Inc., 87-STA-28 (Sec'y June
3, 1988), the Secretary refused to consider documents submitted
for the purpose of augmenting the record made before the ALJ and
the briefs and arguments made on review, and for the purpose of
challenging the veracity of witnesses who testified at the
hearing.
II H 5 a Appeal only from final
order
The court granted the Secretary's motion to dismiss the
Petitioner's appeal after concluding that the Secretary had not
issued a final order for this case. The court found the relevant
statute contemplated a final order before the right to appeal is
granted. The court further noted that postponing the appeal in
this case until after the issuance of a final order will not
result in the loss of the right to appeal that issue.
Yellow Freight System, Inc. v. Reich, No. 93-4347,
1994 U.S. App. LEXIS 5082 (6th Cir. May. 17, 1994).
[STAA Whistleblower Digest II H 5 a]
REMAND WHERE ARB REQUESTS AN OPPORTUNITY TO RECONSIDER ITS DECISION
In Roadway Express, Inc. v. Administrative Review Board, USDOL, Nos. 03-4074 and 03-4115 (6th Cir. Nov. 22, 2004) (unpublished) (case below Eash v. Roadway Express, Inc., ARB Nos. 02-008 and 02-064, ALJ No. 2000-STA-47), the ARB had affirmed without discussion the ALJ's granting of summary judgment to the Respondent on the issue of fatigue where the ALJ found that that the Complainant had become fatigued though no fault of the Employer. On review before the Sixth Circuit, the ARB moved for remand because it had failed to address an earlier case also involving the Complainant in which it had reversed an ALJ's grant of summary judgment in favor of the Respondent and held that a genuine issue of material fact is raised at the summary judgment stage where the Complainant disputes whether he deliberately made himself unavailable for work due to fatigue. The court granted the ARB's motion following precedent to the effect that an agency should be allowed to reconsider its own decision if it has doubts about the correctness of that decision. The court denied the Complainant's suggestion that the case be remanded directly to the ALJ because to do so would implicitly make a finding on the appropriateness of summary judgment in the case -- the very issue which the ARB sought to reconsider.
II H 5 b Reinstatement proceeding
See Division IX A 4 c.
II.H.5.c. Deferral to Secretary, not
ALJ
In Yellow Freight Systems, Inc. v. Reich, No. 93-
1205 (4th Cir. Oct. 29, 1993) (available at 1993 U.S. App. LEXIS
28378), the Fourth Circuit held that it would review only the
decision of the Secretary, and did not consider the employer's
contention that the Secretary failed to accept the ALJ's findings
of fact as required under 29 C.F.R. § 1978.109(c)(3). The
Court stated that "[t]he Secretary may disagree with an
ALJ's conclusions and review the record independently to assess
evidence not adequately considered at the hearing."
One judge dissented, concluding that the Secretary failed in his
obligation to accept the ALJ's findings of fact when supported by
the record.
[STAA Whistleblower Digest II I]
RECONSIDERATION BY THE ARB
Where the Complainant's motion for reconsideration presented new evidence that did not alter the record or the ALJ's determination in regard to the Complainant's failure to establish that he had engaged in protected activity, and the motion raised the same arguments that were considered and rejected by the ARB in its original decision affirming the ALJ, the Board declined to reconsider. Cummings v. USA Truck, Inc., ARB No. 04-043, ALJ No. 2003-STA-47 (ARB Dec. 12, 2005).
II I Submission of evidence
after the hearing
In the absence of any prior explanation or reference, the ALJ did
not err in refusing to accept into the record late evidence
submitted by Complainant. 29 C.F.R. §§ 18.54(c), 18.55
(1993); cf. Eisner v. United States EPA, 90-SDW-2 (Sec'y
Dec. 8, 1992).
Settle v. BWD Trucking Co., Inc., 92-STA-16 (Sec'y
May 18, 1994).
[Editor's note: The ALJ had left the record open for 30 days
following the hearing for the submission of briefs. Nearly a
year later, Complainant submitted a supplemental brief in which
he sought inclusion into the record of five additional documents
that he contended could not be obtained until a few weeks prior
to the supplemental filing. The ALJ held that the record had
closed 30 days following the hearing, and because Complainant had
not provided notice that it intended to file additional
documents, the supplemental brief would not be considered.
Settle v. BWD Trucking Co., Inc., 92-STA-16 (ALJ
July 30, 1993).]
[STAA Digest II I]
NEW EVIDENCE
In Madonia v. Dominick's Finer Foods, Inc., 1998-STA-2 (ARB Jan.
29, 1999), the Board remanded the case to the ALJ for receipt into evidence, of a letter that
Respondent obtained after the issuance of the ALJ's recommended decision as the result of
discovery in a separate lawsuit under the ADA. The letter was relevant and material, see
29 C.F.R. § 18.54(c), because it tended to bolster Respondent's credibility concerning a
crucial date that related to whether Respondent's discharge of Complainant was motivated by
protected activity or by Complainant's failure to abide by a condition imposed on his continued
employment following an altercation.
In Foley v. Boston Edison Co., 1997-ERA-56 (ARB Feb. 2, 1999), in
contrast, the ARB denied a motion to reopen where Complainant did not yet have possession of
any additional documents, had not shown that the information would be relevant, had not shown
that the information was not previously available at trial, and it appeared that Complainant was
"merely ... hoping or expecting that these inquiries by government agencies [studies or
investigations by the NRC or OIG] might generate information useful to his case."
[STAA Digest II I]
MOTIONS FOR RECONSIDERATION; ARB DISFAVORS
The ARB stated in Jackson v. Protein
Express, 95-STA-38 @ 2 (ARB May 29, 1998), that motions for reconsideration
are generally disfavored, citing INS v. Doherty, 502 U.S. 314, 323 (1992); Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) (Reconsideration should be granted
only
to "correct manifest errors of law or fact or to present newly discovered evidence.").
In Jackson, however, the ARB did reconsider to clarify its holding in its
earlier Remand Order.
II.I. ALJ does not have the authority to rule on
a motion to reconsider after issuance of the
Recommended D & O
In Tankersly v. Triple Crown Services, Inc., 92-
STA-8 (Sec'y Feb. 18, 1993), the Secretary refused to consider
the ALJ's ruling on the complainant's motion for reconsideration
because subsequent to issuance of the Recommended Decision and
Order, jurisdiction passed to the Secretary. 29 C.F.R. §
1978.109; cf. McGavock v. Elbar, Inc., 86-STA-5 (Sec'y
Mar. 15, 1988) (order denying amendment of remand order).
[Editor's note: The Secretary applied Rule 59(e) of the Fed.
Rules of Civ. Proc. to find that she could not rule on a motion
for reconsideration filed more than 10 days after issuance of an
order in Spearman v. Roadway Express, Inc., 92-STA-1
(Sec'y Oct. 27, 1992) (order denying motion to reconsider). I do
not have a copy of the McGavock order so I do not know if
it conflicts with Spearman.
Query: What does this ruling mean to supplementary decisions on
attorneys' fees?]
II I Reconsideration by ALJ
In Settle v. BWD Trucking Co., Inc., 92-STA-16 (ALJ
Jan. 21, 1994), adopted, Settle v. BWD Trucking Co.,
Inc., 92-STA-16 (Sec'y May 18, 1994), the ALJ denied
Complainant's motion for reconsideration of his earlier
recommended decision and order on the merits based on the
Secretary's ruling in Tankersly v. Triple Crown Services,
Inc., 92-STA-8 (Sec'y Feb. 18, 1993), that an ALJ has no
jurisdiction to consider a motion for reconsideration after
issuance of the recommended decision and order.
The ALJ had granted the parties time after the decision on the
merits to submit evidence on the amount of back wages owed, and
to submit any motion for expenses and attorney fees.
II.I. Newly submitted evidence
The record may be reopened for newly discovered evidence
already in existence of which a party was excusably ignorant. A
complainant's claim, however, that he was hampered by lack of
access to the investigative record was unavailing in this case.
The Secretary noted that the failure to show diligence to
discover the evidence before the close of the hearing militates
against reopening the record. Additionally, the Secretary noted
that newly discovered evidence, the effect of which is merely to
discredit, contradict or impeach a witness, does not afford a
basis for the granting of a new trial. See N.L.R.B. v.
Jacob E. Decker & Sons, 569 F.2d 357, 364 (5th Cir.
1978). McDaniel v. Boyd Brothers Transportation, 86-STA-6
(Sec'y Mar. 16, 1987).
II.I. Vacating of decision
In Green v. Creech Brothers Trucking, 92-STA-4
(Sec'y Dec. 7, 1993), the Secretary Reich vacated a decision by
Secretary Martin in Complainant's favor, Green v. Creech
Brothers Trucking, 92-STA-4 (Sec'y Dec. 9, 1992), remanded a
case for submission of further evidence by both Complainant and
Respondent. Secretary Reich's Order of Remand was based on
Respondent's decision to join Complainant's earlier complaint
that he was denied due process at the hearing before the ALJ, and
the Assistant Secretary's agreement that the case should be
remanded under the circumstances.
[Editor's note: In Secretary Martin's decision it was noted that
Complainant contended that the ALJ made it clear that he had to
catch a 5:00 pm flight, disallowed closing argument, and caused
counsel to abbreviate the taking of testimony. Secretary Martin
took this into consideration but ruled in favor of Complainant,
apparently mooting Complainant's due process issue. The ALJ had
recommended dismissal of the complaint.]
II.I. Complainant's Motion to Reopen Record for
submission of evidence not presented to ALJ
In Boyd v. Belcher Oil Co., 87-STA-9, (Sec'y Dec.
2, 1987), the Deputy Secretary denied Complainant's Motion to
Reopen the Record for the submission of evidence not
presented to the ALJ. The Secretary stated that his review of
the case must be based on the record made before the ALJ and on
the ALJ's decision. Furthermore, upon review of the evidence for
purposes of determining whether the case should be remanded to
the ALJ for review of the additional evidence, the Deputy
Secretary noted that the purpose of the new evidence offered was
to contradict or impeach witnesses so as to overcome the ALJ's
findings of fact. The Deputy Secretary determined that this was
not an adequate basis for a new hearing and limited his review to
the record before the ALJ.
II.I. Reconsideration by Secretary
In Stiles v. J.B. Hunt Transportation, Inc., 92-
STA-34 (Sec'y Dec. 3, 1993), the Secretary denied a motion for
reconsideration of his earlier decision that Complainant had not
established a violation of the employee protection provision of
the STAA. The Secretary reconsidered, even though the STAA does
not contain a provision for seeking reconsideration of a final
decision of the Secretary, because the earlier decision had been
based on a finding that Complainant had not filed a brief with
the Secretary. Complainant averred in his motion for
reconsideration that he had filed such a brief and attached a
copy to his motion.
Considering the entire record, including the brief, the Secretary
concluded that the brief raised no new issues or evidence that
was not considered in reaching the earlier decision, and
therefore denied the motion for reconsideration.
[Editor's note: It is not entirely clear, but I think the
Secretary actually granted the motion for reconsideration, but
affirmed his prior decision.]
II.I. Motion for reconsideration
A motion for reconsideration mailed more than ten days following
the issuance of the Secretary's Decision and Order and Order
Vacating Procedural Orders and Directing Reassignment was not
timely. The Secretary, noting that neither the STAA nor its
implementing regulations provide for reconsideration by the
Secretary, applied Rule 59(e) of the Federal Rules of Civil
Procedure (motion to alter or amend a judgment must be served not
later than ten days after entry of judgment). Spearman v.
Roadway Express, Inc., 92-STA-1 (Sec'y Oct. 27, 1992)
(Order Denying Motion to Reconsider), slip op. at 1-2.
II I Reopening of record; evidence closing of
terminal
In
Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17,
1995), the Secretary granted Respondent motion to reopen the
record to provide evidence that it had closed its Buffalo
operation three months after the conclusion of the hearing,
finding that the evidence is new and material evidence that was
not available prior to the end of the hearing. See 29 C.F.R.
§ 18.54(c). Complainant had worked out of the Buffalo
terminal.
II I Secretary considers motion for reconsideration in
post-Bartlik STAA case
In
Ass't Sec'y & LaJoie v. Environmental Management
Systems, Inc., 90-STA-31 (Sec'y Apr. 3, 1995) (order
denying motion for reconsideration), the Secretary denied the
Respondent's motion for reconsideration. The Secretary
considered the Respondent's arguments, but found that none
persuaded him to reverse his previous decision.
[Editor's note: This order is of interest mainly
because the Secretary denied the motion on merits; he did not
discuss the question of whether he has the authority to
reconsider. In an ERA proceeding, the Sixth Circuit has found
that the Secretary does not have authority to reconsider a final
decision. Bartlik v. United States Dept. of Labor, 34
F.3d 365 (6th Cir. 1994). The Secretary has declined to follow
Bartlik outside the Sixth Circuit. Crosier v.
Westinghouse Hanford Co., 92-CAA-3 (Sec'y Dec. 8, 1994)
(order denying requests for reconsideration).
Although the Secretary assumes he has authority to rules on
motions for reconsideration, he has found that the ALJ does not
have similar authority once the ALJ issues a recommended decision
and order. Tankersley v. Triple Crown Services, 92-STA-8
(Sec'y Feb. 18, 1993).]
II I Reopening of record
In Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y
Mar. 16, 1995), the Secretary denied a motion for
reconsideration, but remanded the matter to the ALJ to reopen the
record. The Secretary did not discuss his authority to order a
case reopened following issuance of a final decision and
order.
[STAA Digest II J]
APPELLATE BRIEFS; EXTENSION OF TIME TO FILE DENIED WHERE MOTION FOR EXTENSION WAS FILED BEYOND ORIGINAL DUE DATE AND DID NOT CITE ANY REASON JUSTIFYING LATE FILING
In Trammell v. New Prime, Inc. , ARB No. 07-109, ALJ No. 2007-STA-18 (ARB Oct. 5, 2007), the ARB had earlier granted the Complainant's motion for an extension of time to file its appellate brief where the motion was filed prior to the due date for the brief and established good cause for an extension. The ARB, however, denied in the instant order the Respondent's motion for an extension of time to file its brief where the motion was filed beyond the due date and did not cite any reason for allowing an extension.
II.J. Defective service of ALJ
decision
Where the record contained no evidence certifying that the
parties received a copy of the ALJ's recommended decision, the
OAA appended a copy to its notice of receipt. McGinnis v.
Transcon Lines, Inc., 90-STA-39 (Sec'y June 16, 1993)
(Notice of Receipt and Service of Administrative Law Judge's
Decision).
[Editor's note: The ALJ's recommended order of dismissal
included a service sheet. In addition, the body of the order
included a notice stating that the Recommended Order "is
being served on the parties and the Secretary of Labor."
Apparently the reason OAA did not consider there to be evidence
of receipt was that the Legal Technician did not sign or date the
service sheet. This is not entirely clear, however, since
signature of a service sheet could only "certify"
service, not receipt. Thus, is OAA requiring the use of
certified mail in STA cases? Perhaps this is the point because
the thrust of the recommended order is that the Complainant be
found to have abandoned his complaint upon failure to respond to
the ALJ's order to show case.
OAA's service sheet is signed and dated but not stated in terms
of "certifying" service. OAA mailed the notice via
certified mail to the Complainant and the Complainant's attorney,
but regular mail to the Respondent's attorney. Neither the ALJ
nor OAA served the Respondent directly (this could be because
there was no address for Respondent or because Respondent's
attorney was taking all service).]
[STAA Whistleblower Digest II J]
REQUEST FOR HEARING; FAILURE TO TIMELY SERVE OPPOSING PARTY
In Daigle v. United Parcel Service, 2004-STA-42 (ALJ Nov. 30, 2004), the ALJ declined to dismiss a STAA whistleblower complaint based on the Complainant's failure to timely serve the Respondent with a copy of his request for a hearing. The ALJ rejected the Respondent's suggestion that the ALJ follow her own decision in Steffenhagen v. Securitas, AB, 2005-ERA-3 (ALJ Dec. 16, 2003), finding that it was distinguishable on several grounds. First, Steffenhagen was governed by the ERA whistleblower regulations, which require service on the opposing party, whereas the STAA regulations do not impose such a requirement. Second, in Steffenhagen the Complainant was represented by counsel and had not provided OSHA with sufficient evidence to serve 17 named respondents with notice of the investigation. OSHA dismissed on these grounds, and the Complainant did not correct the failure of notice before the ALJ. In the instant case, in contrast, the Respondent was involved in the OSHA investigation, and the failure to serve the Respondent with a notice of request for a hearing did not prejudice the Respondent, particularly in view of the fact that the ALJ's notice of hearing was issued five days after the docketing of the appeal with OALJ.
[STAA Whistleblower Digest II J]
BRIEFING ON APPEAL IN STAA CASE; SINCE REVIEW IS AUTOMATIC BRIEFS ARE DUE WITHOUT FURTHER ORDER THE BOARD
In Somerson v. Mail Contractors of America, ARB No. 03-055, ALJ No. 2002-STA-44 (ARB Nov. 25, 2003). the Board ruled:
Pursuant to 29 C.F.R. § 1978.109, an Administrative Law Judge is required to immediately forward his or her decision under the STAA to the Administrative Review Board (ARB or Board), the Secretary's designee, to issue a final order. The regulation further provides that the parties may file briefs in support of or in opposition to the Administrative Law Judge's decision within thirty days of the date on which the Judge issued the decision. 29 C.F.R. § 1978.109(c)(2). Accordingly, pursuant to 29 C.F.R. § 1978.109, review of the ALJ's R. D. & O. in this case was automatic and any briefs in support of or in opposition to the R. D. & O. were due on January 15, 2003, without further order of the Board.
Slip op. at 5 (footnote omitted).
[STAA Whistleblower Digest II J]
ARB BRIEFING FORMAT REQUIREMENTS; FAILURE TO COMPLY
In Roberts v. Marshall Durbin Co., ARB No. 03-071, ALJ No. 2002-STA-35 (ARB Apr. 15, 2003), the ARB returned a brief to a pro se Complainant who used single spacing rather than double spacing, except in regard to block quotations. The ARB viewed the submission as a an attempt to evade its 30 page limitation as specified in the briefing schedule.
[STAA Whistleblower Digest II J]
EVIDENCE; NEGATIVE INFERENCE DRAWN BASED ON FAILURE TO PRODUCE
WITNESS
In Poll v. R. J. Vyhnalek Trucking, ARB No.
99-110, ALJ No. 1996-STA-35 (ARB June 28, 2002), the ALJ found that the Complainant had
engaged in protected activity based upon his testimony and on a negative inference. The ALJ
wrote: "The evidence is contradictory as to whether complainant was required to falsify
[his driver's daily logs and vehicle inspection reports], but as respondent did not call ... as a
witness ... the individual who respondent [sic] identified as requiring the falsification, I draw
the inference that complainant's testimony in this regard is truthful." The ARB found that
the record supported the ALJ's finding in this regard, thereby implicitly approving the ALJ's use
of an adverse inference based on the Respondent failure to call a critical witness within its
control.
[STAA Digest II J]
BRIEF BEFORE ARB; EQUITABLE FILING OUT OF TIME
In More v. R&L Transfer, Inc., ARB No. 01-044, ALJ No. 2000-STA-23 (ARB Mar. 16, 2001), the ARB granted Complainant's motion to file a brief out of time, where Complainant, who was proceeding pro se, averred that he attempted to contact a number of DOL officials to determine the procedures for filing a brief, but did not find out the schedule until he contacted the ARB.
[STAA Digest II J]
BRIEF BEFORE ARB; ENLARGEMENT OF TIME TO SOLICIT AMICUS BRIEFS DENIED
In Stauffer v. Walmart Stores, Inc., ARB No. 00-062, ALJ No. 1999-STA-21 (ARB Feb. 21, 2001), the ARB denied Complainant's motion for an enlargement of time to solicit amicus briefs. The Board had granted permission for each party to file a brief responsive to the opening briefs because of the unusual circumstances of the case. The Board found the request to solicit amicus briefs beyond the scope of the order permitting the filing of responsive briefs.
II. J. Service of decision and other service and
filing issues
When read together, 29 C.F.R. §§ 18.4(a)(3) and
18.6(b), provide that, if a motion is served upon a party by
mail, that party "may file" a response to the motion
within 15 days of service.
Roadway Express, Inc. v. Reich, No. 93-3787 (6th
Cir. Aug. 22, 1994) (unpublished) (available at 1994 U.S. App.
LEXIS 22924) (implying that 29 C.F.R. § 18.6(a), which
provides that "all parties shall be given reasonable
opportunity to state an objection to the motion or request,"
should not be interpreted as only requiring that the opposing
party be given a reasonable time to respond).
II.J. Timeliness of brief
In Kovas v. Morin Transport, Inc., 92-STA-41 (Sec'y
Oct. 1, 1993), the Secretary denied Respondent's motion to strike
the Acting Assistant Secretary for OSHA's brief, finding that the
brief was timely filed pursuant to 29 C.F.R. §
1978.109(c)(2) and 29 C.F.R. § 18.4(c), which provides that
five days should be added to the prescribed filing period when
the triggering document is served by mail, such as the ALJ's
decision here. See 29 C.F.R. § 18.3(c).
II.J. Service of recommended order must be
"certified"
In McGinnis v. Transcon Lines, Inc., 90-STA-39 (ALJ
Mar. 11, 1993), the ALJ ordered the parties to show cause why the
request for a hearing should not be deemed abandoned given
Complainant's failure to keep the Office of Administrative Law
Judges apprised of the status of the case (which had been
continued over two years earlier based on Respondent's bankruptcy
proceeding). Neither party responded, and the ALJ issued a
recommended order of dismissal (which in an STAA abandonment case
results in conversion of the Administrator's findings into the
final order). McGinnis v. Transcon Lines, Inc.,
90-STA-39 (ALJ Apr. 26, 1993),
The Secretary served the recommended order on the parties,
apparently because the ALJ's service sheet was not signed
("no evidence in the record certifying that the parties
received a copy of the ALJ;s recommended decision").
McGinnis v. Transcon Lines, Inc., 90-STA-39 (Sec'y
June 16, 1993). Upon receiving no response, the Secretary
entered as the final administrative order in the case the
Administrator's findings. McGinnis v. Transcon Lines,
Inc., 90-STA-39 (ALJ July 22, 1993).
II. J. Service of decision and other service and
filing issues
When read together, 29 C.F.R. §§ 18.4(a)(3) and
18.6(b), provide that, if a motion is served upon a party by
mail, that party "may file" a response to the motion
within 15 days of service.
Roadway Express, Inc. v. Reich, No. 93-3787 (6th
Cir. Aug. 22, 1994) (unpublished) (available at 1994 U.S. App.
LEXIS 22924) (implying that 29 C.F.R. § 18.6(a), which
provides that "all parties shall be given reasonable
opportunity to state an objection to the motion or request,"
should not be interpreted as only requiring that the opposing
party be given a reasonable time to respond).
[STAA Digest II K]
DISCOVERY; ALJ'S AUTHORITY TO LIMIT WHERE COMPLAINANT'S REQUESTS WERE BROAD AND VAGUE
In Coates v. Southeast Milk, Inc., ARB No. 05-050, ALJ No. 2004-STA-60 (ARB July 31, 2007), the ARB – noting that DOL ALJs have the authority to limit discovery – affirmed the ALJ's order finding that the Respondent had fully cooperated in discovery, even though it had objected to some of the Complainant's requests as overly vague, broad, burdensome or ambiguous, not related to the STAA complaint, or protected by privilege or attorney work product. The ALJ concluded that the Respondent had responded as well as possible, given the broad and vague nature of the Complainant's questions. The ARB found that the Complainant had not shown how any of the information turned over could have helped him prove issues related to his STAA complaint, but rather had made it clear that his discovery requests were meant to help him establish all his theories about the Respondent on matters such as overtime pay, excessive hours on duty, concerted activities, environment pollution, free speech, etc.
[STAA Digest II K]
DISCOVERY; ALJ'S DISCRETION TO IMPOSE REASONABLE SANCTIONS
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.
[STAA Whistleblower Digest II K]
SANCTIONS UNDER RULE 18.6(d)(2); RESPONDENT'S FAILURE TO RESPOND TO ALJ'S ORDERS OR COMPLAINANT'S INTERROGATORIES, REQUESTS FOR ADMISSION OR MOTION FOR SUMMARY JUDGMENT
In Waechter v. J.W. Roach & Sons Logging & Hauling, ARB No. 04-183, ALJ No. 2004-STA-43 (ARB Jan. 9, 2006), the ALJ issued several orders to the parties, none of which the Respondent answered. The Respondent also ignored the Complainant's interrogatories, requests for admissions, and Motion for Partial Summary Judgment. Accordingly, the ALJ ordered the Respondent to show cause why sanctions authorized by 29 C.F.R. § 18.6(d)(2) should not be imposed. When the Respondent again failed to reply, the ALJ ordered that the factual matters addressed by the Complainant's request for admissions be deemed admitted and that the factual matters asserted in the Complainant's affidavit in support of his Motion for Partial Summary Judgment be deemed unopposed. The ALJ also ruled that the Complainant would be afforded an opportunity to present argument and evidence in support of damages and attorney fees and costs and that the Respondent would not be permitted to oppose these submissions. The Respondent made no response to this order either. On review, the ARB held that the record fully supported the ALJ's exercise of discretion in applying sanctions authorized by Rule 18.6(d)(2).
[STAA Whistleblower Digest II K]
SANCTIONS FOR FAILURE TO COMPLY WITH DISCOVERY ORDER; RESPONDENT'S REFUSAL TO REVEAL IDENTITY OF CONFIDENTIAL INFORMANT
In Cefalu v. Roadway Express, Inc., ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB Jan. 31, 2006), the Complainant was discharged the very evening that he provided a statement on behalf of a co-worker who had grieved a discharge for allegedly falsifying his driving log. The Complainant's statement alleged that a superior had asked him to falsify a log in violation of the hours of service regulations. The stated ground for the discharge was that the Complainant lied on his 1999 job application.
In discovery the Complainant served an interrogatory requesting the identity of all persons who provided information that the Respondent considered in determining whether to discharge the Complainant. The Respondent refused to respond on the ground that it had promised to keep the informant's identity secret. The ALJ granted the Complainant's motion to compel and denied a motion by the Respondent for a protective order. The Respondent refused to comply. Later, the Complainant's counsel deposed three witnesses of the Respondent who knew the identity of the informant but refused to disclose it. The Complainant thereafter filed a motion seeking sanctions. The ALJ denied a default judgment, but ordered that the Respondent not be permitted to present any evidence that arose from the unidentified confidential source. After a hearing, the ALJ found in favor of the Complainant.
On review, the ARB found that the ALJ's discovery sanction was not an abuse of discretion. The Respondent's defense was to be that its discharge of the Complainant for lying on his job application was a legitimate, non-discriminatory ground. To show that this was pretext, the Complainant was entitled to know when the Respondent found out about the job application and from whom. He was also entitled to know who participated in the decision to discharge him. The Board, therefore, found that the discovery sanction was appropriate and tailored to the discovery the Respondent refused to produce.
[STAA Whistleblower Digest II K]
DISCOVERY; REFUSAL TO IDENTIFY "CONFIDENTIAL SOURCE"; SANCTION OF LIMITATIONS ON EVIDENCE THAT THE NON-COMPLYING PARTY CAN PRESENT
In Cefalu v. Roadway Express, Inc., 2003-STA-55 (ALJ Jan. 20, 2004), the ALJ imposed sanctions on the Respondent for failure to comply with the ALJ's order granting the Complainant's motion to compel discovery of the identity of a confidential source. The ALJ in that earlier order had found that the Respondent had not articulated a recognizable privilege to protect the source's identity and that the identity of the source was relevant to the discovery process. The Respondent refused to reveal the identity of the source, and the Complainant moved for judgment against the Respondent as a sanction. In response, the Respondent argued that it had respected all the orders and deadlines imposed by the ALJ, with the exception of the confidential source ruling, and suggested that default was not proportional to the violation and that limited attorney fees and costs related to the discovery dispute would be a more appropriate sanction.
The ALJ found that default was not appropriate because the Complainant had not yet even established a prima facie case. The ALJ also found, however, that limited attorney's fees were not proportional either. Rather, the ALJ determined that the sanction would be "that Respondent shall not be permitted to present any evidence that arose from the unidentified confidential source, including, but not limited to, the testimony of the individual(s) who confirmed that Complainant was terminated from his prior employment, the testimony of the individual(s) who made the decision to terminate Complainant, and any related documentary evidence." Slip op. at 1-2.
[STAA Whistleblower Digest II K]
SUBPOENAS; REQUEST FOR SUBPOENAS WHILE CASE PENDING BEFORE THE ARB
In Reid v. Constellation Energy Group, Inc., ARB No. 04-107, ALJ No. 2004-ERA-8 (ARB Oct. 13, 2004), Halpern v. XL Capital, Ltd., ARB No. 04-120, ALJ No. 2004-SOX-54 (ARB Oct. 13, 2004) and Cummings v. USA Truck, Inc., ARB No. 04-043, ALJ No. 2003-STA-47 (ARB Sept. 15, 2004), the ARB denied the requests of pro se complainants to obtain subpoenas from the ARB. The Board observed in each case that the Board acts in an appellate capacity and its decision is based only on evidence considered by the ALJ in the initial hearing.
II. K. Discovery issues
Effective September 14, 1994, 29 C.F.R. Part 18 was amended to
eliminate the routine filing with the presiding ALJ of most
discovery documents, and to provide rules governing the filing
and service of documents by facsimile.
In regard to section 18.3(f), faxes will be permitted for
filing only when directed or permitted by statute, regulation or
order or consent of the presiding judge. Such filings must have
a service sheet and a cover sheet. Originals do not have to be
sent unless required by the presiding judge or if an original
signature is required (e.g., on a complaint). Under section
18.4(d), the time printed on the transmission by the receiving
fax machine is deemed the Chief Docket Clerk's date stamp.
See 59 Fed. Reg. 41874 (Aug. 15, 1994).
[STAA Whistleblower Digest II K]
SUBPOENAS; ERROR TO DENY WITHOUT STATING LEGAL STANDARD OR RATIONALE
In Schwartz v. Young's Commercial Transfer, Inc., ARB No. 02-122, ALJ No. 2001-STA-33 (ARB Oct. 31, 2003), the ARB
found that the ALJ erred in denying subpoenas to Complainant based on summary conclusions that the requests were untimely, and were "overly broad, vague and not relevant." The ARB faulted the ALJ for failing to
cite any pertinent legal standards or otherwise provide a rationale for the rulings. The Board found at least one category of records sought by Complainant to be clearly relevant, and falling squarely within the parameters of
materials that are properly discoverable in an employment discrimination case. See 29 C.F.R. § 18.14(a)(Scope of discovery; providing that the parties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the proceeding…."). The ARB found that Respondent's concerns about disclosure of dispatch information containing references to other employees could have been
effectively addressed through mutual agreement of the parties or a protective order issued by the ALJ. The Board, however, found that the error was harmless because it was able to decide the appeal based on facts not in
issue and therefore not impacted by the error in discovery rulings.
In a footnote, the ARB noted the holding in Bobreski v. U.S. Environmental Protection Agency, No. 02-0732 (RMU), 2003 WL 22246796 at *6-8 (D.D.C. Sept. 30, 2003), to the effect that an ALJ does not have the authority
to issue a subpoena without a specific statutory grant of such authority. The ARB stated "Regardless of whether the ALJ is authorized to issue subpoenas pursuant to the STAA, he clearly does have the authority to take
measures to compel production pursuant to Section 18.6(d) and 18.21."
[STAA Whistleblower Digest II K]
HIPAA Regulations Governing the Privacy of Health Records
On April 14, 2003, Department of Health and Human Services' "Privacy Rules" governing the release of medical records went into effect for many of entities covered by the regulations. Standards for Privacy of Individually Identifiable Health
Information, 45 CFR Parts 160 and 164. The primary purpose of the Privacy Rules is to require health plans and providers to maintain administrative and physical safeguards to protect the confidentiality of health information and protect against unauthorized access.
HHS issued the rules in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
HHS' Office for Civil Rights has established a web page www.hhs.gov/ocr/hipaa/bkgrnd.html with links to information about the new rules. In addition,
a page has been added to OALJ's web site with links to resources specific to the relationship between the Privacy Rules and judicial and administrative proceedings.
The regulations begin with the premise that "[a] covered entity may not use or disclose protected health information, except as permitted or required by [the regulations]." 45 C.F.R. § 164.502(a).
Disclosures, however, are permitted in response to an order of a court or administrative tribunal and in response to a subpoena, discovery request, or other lawful process. 45 CFR § 164.512(e). The rule on disclosures
in judicial and administrative proceedings contains some important details. For example:
When disclosing information in response to an order issued by a court or administrative tribunal, a covered entity may only disclose the protected health information expressly authorized by such order.
45 CFR § 164.512(e)(1)(i).
In responding to a subpoena or discovery request, a covered entity must "receive[]satisfactory assurance . . . from the party seeking the information that reasonable efforts have been made by
such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request." 45 CFR § 164.512(e)(1)(ii)(A).
Regulatory history discussing whether employment records are covered by the regulations is found at www.oalj.dol.gov/PUBLIC/RULES_OF_PRACTICE/REFERENCES/
REFERENCE_WORKS/HIPAA_REG_HISTORY_EMPLOYMENT_RECORDS.HTM.
[STAA Whistleblower Digest II K]
SUBPOENAS; RELEVANCY; CONFUSION OR WASTE OF TIME
In Somerson v. Mail Contractors of America,
Inc., 2002-STA-44 (ALJ Sept. 27, 2002), the ALJ denied issuance of a subpoena
seeking the records of an FBI agent who had evidently interviewed attorneys for Respondent
in relation to a prior proceeding in which Complainant had been referred for contempt to a U.S.
District Court, where Complainant did not show what relevant and admissible evidence was
sought or could be led to by the discovery. The ALJ also concluded that it appeared that
whatever documents would be produced by such a subpoena "would be likely to raise
issues whose definition and resolution would be possible only by reliance upon evidence which
would be necessarily excludable on grounds of confusion or waste of time pursuant to 29 [CFR]
§18.403."
II.K. Refusal of Respondent to cooperate
In Gaspar v. Gammons Wire Feeder Corporation, 87-
STA-5 (Sec'y Sept. 17, 1987) the Secretary found that the ALJ
properly imposed sanctions on Respondent pursuant to 29 C.F.R.
section 18.6(d)(2)(1986) for failure to comply with the ALJ's
discovery orders. The Secretary also adopted the ALJ's finding
"that all requested evidence would have been adverse to the
Respondent, that all such matters are taken as established
adversely to the Respondent, that the Respondent may not now
introduce evidence in support of his appeal or object to the
Plaintiff's evidence, and that the Respondent's request for a
formal hearing is stricken." In conclusion, the Secretary
determined that Respondent could not be permitted to thwart or to
retard the adjudication of Complainant's complaint by not being
responsive to the ALJ's orders.
II. K. Discovery issues
Effective September 14, 1994, 29 C.F.R. Part 18 was amended to
eliminate the routine filing with the presiding ALJ of most
discovery documents, and to provide rules governing the filing
and service of documents by facsimile.
In regard to section 18.3(f), faxes will be permitted for
filing only when directed or permitted by statute, regulation or
order or consent of the presiding judge. Such filings must have
a service sheet and a cover sheet. Originals do not have to be
sent unless required by the presiding judge or if an original
signature is required (e.g., on a complaint). Under section
18.4(d), the time printed on the transmission by the receiving
fax machine is deemed the Chief Docket Clerk's date stamp.
See 59 Fed. Reg. 41874 (Aug. 15, 1994).
II K Dismissal for failure to comply with discovery
and prehearing orders
In
White v. "Q" Trucking Co., 93-STA-28
(Sec'y Dec. 2, 1994), the Secretary adopted the ALJ's
recommendation that the complaint be dismissed based on the
Complainant's refusal to comply with certain discovery and
prehearing orders. 29 C.F.R. § 18.6(d)(2)(v). The
Secretary agreed with the ALJ that costs and expenses should not
be assessed against the Complainant.
[Editor's note: The ALJ decision underlying the
Secretary's final order was detailed. The ALJ carefully
established Complainant had demonstrated a pattern of
contumacious conduct. The ALJ's conclusion that costs and
expenses should not be awarded to the Respondent for preparation
of the Motion for Sanctions was based on the Secretary's ruling
in Billings v. Tennessee Valley Authority, 89-ERA-16, 25,
90-ERA-2, 8, 18 (Sec'y July 28,m 1992), that the Department had
elected not to assert any inherent authority to impose costs in a
whistleblower proceeding. See White v.
"Q" Trucking Co., 93-STA-28 (ALJ Aug. 12,
1994).]
[STAA Digest II L]
BANKRUPTCY; DISCHARGE BY LIQUIDATION PLAN
Where the Respondent filed for bankruptcy and the Complainant failed to file a proof of claim, the ARB affirmed the ALJ’s finding that the bankruptcy court’s plan of liquidation discharged any liability the Respondent may have had toward the Complainant on his employee protection complaint under the STAA. Belt v. Consolidated Freightways Corp., ARB No. 06-069, ALJ No. 2002-STA-32 (ARB Jan. 31, 2008).
[STAA Digest II L]
BANKRUPTCY; FAILURE OF PARTIES TO
COMMUNICATE WITH THE BOARD FOLLOWING RESOLUTION OF BANKRUPTCY PROCEEDING OR TO
RESPOND TO ORDER TO SHOW CAUSE
In Taylor v. Express One International, Inc., ARB No. 02-054, ALJ No. 2001-AIR-2
(ARB Aug. 23, 2007), the ARB had stayed an appeal because the Respondent had
entered bankruptcy. After the Board received a copy of an Agreed Order
concluding the Respondent’s bankruptcy case, and neither party communicated
with the Board, the Board issued an Order to Show Cause why the case should not
be dismissed on grounds of abandonment. Neither party responded, and the Board
dismissed the appeal.
To the same effect: Carmichael
v. Consolidated Freightways Corp. of Delaware, Inc.
, ARB No. 02-081, ALJ No.
2000-STA-53 (ARB Aug. 23, 2007).
II L Stay for bankruptcy
proceedings
The automatic stay provision in section 362(a)(1) of the
Bankruptcy Act is applicable to STAA proceedings. See Nelson
v. Walker Freight Line, Inc., 87-STA-24 (Sec'y July 26,
1988). Moreover, where the Assistant Secretary upon
investigation of the complaint determines that it has no merit,
and therefore the Assistant Secretary participates neither as a
prosecuting party or an intervenor, a complainant's STAA
proceeding does not fall within section 362(b)(4), which exempts
from the automatic stay provision any proceedings by governmental
units for enforcement of policy or regulatory power. See
Torres v. Transcon Freight Lines, 90-STA-29 (Sec'y Jan. 30,
1991).
A complainant is not to be dismissed automatically where a
bankruptcy proceeding results in a stay. Rather, the stay
remains in effect only until a final disposition of the
bankruptcy case, see 11 U.S.C. § 362(c), which may or may
not result in the discharge of the respondent from all of its
debts. The fact that the bankruptcy proceeding is a Chapter 7
liquidation proceeding and there has been appointed a Trustee,
whose duties include the liquidation and expeditious closing of
the bankruptcy estate, see 11 U.S.C. § 204(l), presupposes
that the bankruptcy court will discharge the respondent from all
its debts on liquidation of its assets. Until the bankruptcy
court orders the discharge of the respondent from all its debts,
however, the Complainant has a viable, albeit stayed, claim.
Torres, 90-STA-29, slip op. at 5.
Thomas v. Western American Concrete, 90-STA-16
(Sec'y Apr. 8, 1991) (order staying proceeding and remanding
case).
[Editor's note: complaints were later dismissed in Thomas v.
Western American Concrete, 90-STA-16 (Sec'y July 13, 1992),
where the final report of the Chapter Seven Trustee for the
bankruptcy estate of the respondent certified that respondent's
estate has "no assets."]
[STAA Digest II L]
STAY OF RELIEF; FOUR-PART TEST (LIKELY SUCCESS ON APPEAL; IRREPARABLE INJURY; PROSPECT OTHERS WILL BE HARMED; PUBLIC INTEREST); MERE FINANCIAL LOSS DOES NOT ESTABLISH IRREPARABLE INJURY; LENGTH OF TIME COMPLAINANT HAS WAITED FOR RELIEF; STAA AS A PUBLIC PROTECTION LAW
In Cefalu v. Roadway Express, Inc., ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB May 12, 2006),
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the ARB had affirmed the ALJ's award of reinstatement, back pay and other relief, and the ALJ's attorney fee order. The Respondent appealed to the Seventh Circuit and sought a stay from the ARB. The ARB, applying the four-part test found in Dutkiewicz v. Clean Harbors Envtl. Servs., Inc., ARB No. 97-090, ALJ No. 1995-STA-34 (ARB Sept. 23, 1997), denied a stay because (1) the Respondent's motion provided no reason why it would be likely to succeed on appeal, (2) "mere" financial loss does not support a finding of irreparable harm, and the only "irreparable injury" alleged was that the Respondent would have to make payments to the Complainant and his counsel and would have to spend extensive time and resources to post notices of the decision in its nationwide system of terminals, (3) the Complainant had already waited more than four years to have his pay and benefits restored and may continue to suffer harm if a stay was granted, and (4) the STAA is a public protection statute; therefore the public interest would not be served if a stay was granted.
[STAA Whistleblower Digest II L]
DISCHARGE OF STAA COMPLAINT BY APPROVAL OF LIQUIDATION PLAN BY BANKRUPTCY COURT
While the case was pending before the ALJ, the Respondent filed for bankruptcy. The Complainant reached a settlement with
the Debtor's Official Unsecured Creditor's Committee, and later received a discounted court-approved distribution. The Bankruptcy Court later approved the Committee's
amended Liquidation Plan. The ALJ held that the Bankruptcy Court had discharged the Complainant's STAA claim and recommended
dismissal of the complaint. On automatic review, the ARB found that the ALJ correctly applied the law to the facts and dismissed the complaint.
Kirkpatrick v. Action Steel Supply, Inc.,
ARB No. 06-070, ALJ No. 2001-STA-60 (ARB Oct. 31, 2006).
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[STAA Digest II L]
BANKRUPTCY OF RESPONDENT; ALJ ORDER OF DISMISSAL WITHOUT PREJUDICE COMPORTS WITH SECTION 1978.111(c)
In Husen v. LLK Transport, Inc., ARB No. 06-094, ALJ No. 2005-STA-1 (ARB Feb. 28, 2007),
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OSHA found in favor of the Complainant. The Complainant, however, requested a hearing on OSHA's failure to impose individual liability on the Respondent's owner. At the hearing, the ALJ dismissed the complaint against the Respondent because it had ceased operations. Subsequently, the Respondent's owner filed for Chapter 7 bankruptcy, and the bankruptcy court granted an order of discharge of debtors. The Complainant then filed a motion to dismiss without prejudice. On automatic review, the ARB found that the ALJ's order of dismissal without prejudice comported with 29 C.F.R. § 1978.111(c), which permits a party to withdraw its objections to OSHA's investigative finding at any time before that finding becomes final.
[STAA Digest II L]
JUDICIAL ESTOPPEL; FAILURE TO DISCLOSE STAA PROCEEDING TO BANKRUPTCY COURT
[STAA Whistleblower Digest II L]
STANDING; COMPLAINANT, RATHER THAN BANKRUPTCY TRUSTEE, HAS STANDING TO PURSUE REINSTATEMENT REMEDY OF STAA WHISTLEBLOWER COMPLAINT
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.
[STAA Whistleblower Digest II L]
BANKRUPTCY; AUTOMATIC STAY DOES NOT APPLY TO SUITS BROUGHT BY THE DEBTOR -- THUS COMPLAINANT'S BANKRUPTCY PETITION WOULD NOT STAY AN STAA WHISTLEBLOWER PROCEEDING
In Bettner v. Crete Carrier Corp., 2004-STA-18 (ALJ Oct. 1, 2004), the Complainant had filed a voluntary petition in bankruptcy. Earlier, the Complainant had filed a STAA whistleblower complaint. The ALJ held that the automatic stay provision of the Bankruptcy Act does not apply to suits by the debtor in the Seventh Circuit, and therefore the STAA proceeding would proceed.
[STAA Whistleblower Digest II L]
RESPONDENT REPORTED OUT OF BUSINESS AFTER ALJ ISSUES RECOMMENDED DECISION; ABSENT INFORMATION INDICATING ARB REVIEW IS PRECLUDED, A FINAL DECISION ON THE MERITS WILL STILL ISSUE
In Drew v. Alpine, Inc., ARB Nos. 02-044 and 02-079, ALJ No. 2001-STA-47 (ARB June 30, 2003), the ALJ had issued a Recommended Decision and Order recommending that Complainant be reinstated with backpay and that the final Decision and Order be posted at the terminal for 120 days. Respondent, a bus tour company, informed the Board that it did not intend to appeal the ALJ's decision, but indicated that it may need to move to modify the order because Respondent ceased operating bus tours shortly before the ALJ issued his decision. Subsequently, Respondent's attorney withdrew, noting upon information and belief that Respondent's affairs were now subject to a U.S. bankruptcy court proceeding. Bankruptcy notices attached to the attorney's submission, however, did not specially mention Respondent, and the ARB issued an Order to Show Cause. The responses to the Order to Show Cause did not establish that ARB adjudication of the merits would be precluded; accordingly the ARB affirmed and adopted the ALJ's Recommended Decision, but slightly modified the Order to accommodate the uncertainty about whether Respondent was still in business in the surface transportation business.
[STAA Digest II L]
AUTOMATIC STAY FOR BANKRUPTCY PROCEEDING; CASE SHOULD REMAIN
ON DOCKET UNTIL BANKRUPTCY CASE IS CLOSED RATHER THAN BE DISMISSED
In Haubold v. KTL, Inc., ARB No. 00-065, ALJ No. 2000-STA-35
(ARB Aug. 10, 2000), a Chapter 7 Trustee notified the ALJ that Respondent had filed a petition
for reorganization under Chapter 11 of the United States Bankruptcy Code, which was
subsequently converted into a proceeding under Chapter 7. After issuing an order to show cause
which the matter should not be dismissed, to which the pro se Complainant did not
respond, the ALJ issued a recommended order of dismissal purportedly pursuant to the automatic
stay provision of 11 U.S.C. 363 and Torres v. Trancon, 1990-STA-29 (Sec'y Jan. 30,
1991). The ARB held that dismissal of the case was not appropriate where there was no
evidence that the bankruptcy court had in fact discharged Respondent from all its debts. The
Chapter 7 trustee's notice to the ALJ stated that even if the exceptions to the automatic stay
provision were applicable, Complainant had failed to timely file a proof of claim against the
Debtor's estate and therefore he would be forever barred from asserting his claims against the
estate. The ARB, however, observed that the Trustee had cited no support for this assertion, and
ruled that even if the assertion is true, the automatic stay provision does not specifically include
dismissal of a proceeding. Citing Pope v. Manville Forest Products, 778 F.2d 238, 239
(5th Cir. 1985), the ARB held that dismissal of the case would, in fact, violate the automatic stay
to which the case is subject. Thus, the ARB remanded the case to the ALJ where the case would
remain on the ALJ's docket until the bankruptcy case is closed, dismissed, or discharge is granted
or denied, or until the bankruptcy court lifts the stay.
[STAA Digest II L]
STAY; DISCRETION TO POSTPONE STAA PROCEEDING
In Glasscock v. Alliant Foodservice, Inc., 1999-STA-44 (ALJ Jan. 13,
2000), the ALJ found that the Secretary has the discretion to postpone a determination of an
STAA complaint pending the results of another proceeding. See 29 C.F.R.
§1978.112(b) and (c). Thus, where Complainant filed a civil action that was removed to
Federal district court, and in both proceedings Complainant alleges wrongful termination of
employment and asserts his right to report unsafe working conditions without retaliation, the ALJ
found that the matter could be postponed pending resolution of the civil action This was an
alternative finding, however. The ALJ dismissed the action because she found that it was not
timely filed.
[STAA Digest II L]
STAY OF ARB'S FINAL ORDER PENDING APPELLATE REVIEW
In Dutkiewicz v. Clean Harbors Environmental
Services, Inc., 95-STA-43 (ARB Sept. 23, 1997), Respondent sought a stay
pending judicial review of the portion of the ARB's final decision requiring Respondent to pay
monies to Complainant. The ARB applied the following factors for determining whether the
Board's final decision should be stayed:
(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 court grants the stay; and
- (4) the public interest in granting a stay.
The ARB found that Respondent had not established that it will suffer irreparable harm unless
the stay is granted. Respondent argued that it was unlikely that it would be able to get the money
back it won the appeal. The ARB, however, cited caselaw to the effect that economic loss alone
does not constitute irreparable harm; such a loss must threaten the movant's very existence.
In addition, the ARB found that Respondent had not demonstrated that it was likely to prevail on
the merits in regard to issues about the burden of proof, internal complaints, and admissibility of
hearsay.
Respondent also argued that "no public interest is promoted by rendering a litigant's
legitimate right of appeal moot." The ARB, however, found that the absence of a stay
does not moot a respondent's appeal.
STAY OF FINAL ORDER; FACTORS
[STAA Digest II L]
The Administrative Review Board applied the factors stated in
Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 259
F.2d 921 (D.C. Cir. 1958), to determine whether to stay its Final Decision and
Order in the matter. Ass't Sec'y & Bigham v. Guaranteed Overnight
Delivery, 95-STA-37 (ARB Dec. 12, 1996). Those factors are:
1) Has the [party seeking a stay] made a strong
showing that it is likely to prevail on the merits
of its appeal?
* * * *
2) Has the petitioner show that without such relief,
it will be irreparably injured? The key word in
this consideration is irreparable. Mere injuries,
however substantial, in terms of money, time
and energy necessarily expended in the absence
of a stay, are not enough.
* * * *
3) Would the issuance of a stay substantially harm
other parties interested in the proceeding?
* * * *
4) Where lies the public interest? In litigation
involving the administration of regulatory
statutes designed to promote the public interest,
this factor necessarily becomes crucial. The
interests of private litigants must give way to the
realization of public purposes.
Slip op. at 2, quoting Petroleum Jobbers, 259 F.2d at 925. The
Board, weighing these factors, denied Respondent's request for a stay.
II.L. Remand to clarify bankruptcy status
In Rowland v. Easy Rest Bedding, Inc., 93-STA-19
(ALJ May 6, 1994), the ALJ remanded the case to the Regional
Administrator of OSHA to determine the status of the Respondent
where the corporation has filed bankruptcy proceedings and the
President of the corporation, also a named respondent, has died,
and whether the Complainant wishes to pursue his claim under such
circumstances.
II L DOL whistleblower proceedings excepted
from stay
Although pursuant to 11 U.S.C. § 362(a)(1), a bankruptcy
petition generally stays proceedings against a debtor, 11 U.S.C.
§ 362(b)(4) operates to except DOL enforcement of the
whistleblower provision of the STAA.
Ass't Sec'y & Dougherty v. Bjarne Skjetne, Jr. d/b/a
Bud's Bus Service, 94-STA-17 (Sec'y Mar. 16, 1995).
In Dougherty, however, Complainants missed the
objection to discharge date, and the Bankruptcy Court disallowed
their claim against Respondent, who was proceeding under Chapter
11. The Secretary noted that the Bankruptcy Court's decree may
be fatal to Complainants' ability to collect damages, but that a
decision on this issue was not within the Secretary's
jurisdiction.
II L Application for stay to
agency
In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y
Oct. 21, 1994) (order denying application for stay), Respondent
applied for an administrative stay of the Secretary's final
decision pending judicial review. In denying a stay, the
Secretary found that Respondent's bare assertion that a stay
would not place an unreasonable burden on Complainant is
insufficient in the absence of any showing, or allegation, that
Respondent is likely to prevail in its appeal; that Respondent
will suffer irreparable injury if not granted a stay; and that
the public interest is at stake.
[STAA Digest II N]
ADMISSIBILITY OF TAPE RECORDING AND TRANSCRIPT OF TAPE
The Sixth Circuit held in Goggin v. Administrative Review Board, No.
97-4340 (6th Cir. Jan. 15, 1999)(unpublished) (available at 1999 WL 68694) (case below
1996-STA-25), that "[t]he admission of audio recording and transcripts of taped recordings
at trial or an administrative hearing rests within the sound discretion of the trial court or
administrative law judge. ... Taped recordings are admissible unless incomprehensive portions of
the tapes are so substantial as to render the recordings as whole untrustworthy." (citations
omitted). In Goggin, Complainant had tape recorded a supervisor as he
confronted the supervisor over an unsafe condition in the truck he had been assigned the day
before. Where the tape recording was transcribed by a court reporter and certified as accurate,
and both the ALJ and the ARB found that the tape and transcript were admissible as non-hearsay
admissions of a party-opponent under 29 C.F.R. § 18.801(d)(2), the court found that there
was no abuse of the ALJ's discretion in admitting the tape and certified transcript, even though
certain parts of the tape were inaudible.
[STAA Digest II M]
MISCONDUCT; BOARD DOES NOT HAVE THE AUTHORITY TO IMPOSE RULE 11 SANCTIONS
In Israel v. Schneider National Carriers, Inc., ARB No. 06-040, ALJ No. 2005-STA-51 (ARB July 31, 2008), the Complainant filed a motion with the ARB for Rule 11 sanctions, claiming that the Respondent made false accusations before the ALJ hearing. The Board denied the motion, writing:
The Board may not impose Rule 11 sanctions. The Secretary has observed that "the incorporation of the Federal Rules in 29 C.F.R. § 18.29 is for purposes of procedure and case management to fill in any gaps where no specific provision in the Rules of Practice is applicable. . . . [The Federal Rules do] not give the Secretary the authority directly to impose sanctions and penalties if not otherwise authorized by law." Even if the Board could impose Rule 11 sanctions, Israel has failed to identify any pleadings, motions, or advocacy before the ALJ in which Rule 11 violations occurred.
USDOL/OALJ Reporter at 14-15.
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; FIRST AMENDMENT; LIMITATIONS ON IN-COURT SPEECH
In Board of Professional Responsibility v. Slavin, No. M2003-00845-SC-R3-BP (Tenn. Aug. 27, 2004) (unpublished decision available at 2004 WL 1908797), the Tennessee Supreme Court imposed a two-year suspension on an attorney based on, inter alia, that attorney's conduct in administrative law judge hearings before the U.S. Department of Labor. One of the contentions made by the attorney on appeal was that he was being sanctioned for First Amendment protected speech. The court rejected this claim, writing:
In the context of judicial proceedings, an attorney's First Amendment rights are not without limits. Although litigants and lawyers do not check their First Amendment rights at the courthouse door, those rights are often subordinated to other interests inherent in the judicial setting. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1071 (1991); United States Dist. Court v. Sandlin, 12 F.3d 861, 866 (9th Cir. 1993); Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 476 (S.D.N.Y. 1982); State v. Carruthers, 35 S.W.3d 516, 560-61 (Tenn. 2000). Thus, while we find that legitimate criticism of judicial officers is tolerable, "an attorney must follow the Rules of Professional Conduct when so doing." Shortes v. Hill, 860 So. 2d 1, 3 (Fla. Dist. Ct. App. 2003). A lawyer is not free to "seek refuge within his own First Amendment right of free speech to fill a courtroom with a litany of speculative accusations and insults." United States v. Cooper, 872 F.2d 1, 3 (1st Cir. 1989).
The United States Supreme Court stated:
It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal.
Gentile, 501 U.S. at 1071.
"The First Amendment does not preclude sanctioning a lawyer for intemperate speech during a courtroom proceeding." Jacobson v. Garaas (In re Garaas), 652 N.W.2d 918, 925 (N.D. 2002) (emphasis added). Commenting on Gentile in a disciplinary proceeding, the Supreme Court of Missouri concluded:
An attorney's free speech rights do not authorize unnecessary resistance to an adverse ruling . . . . Once a judge rules, a zealous advocate complies, then challenges the ruling on appeal; the advocate has no free-speech right to reargue the issue, resist the ruling, or insult the judge.
In re Coe, 903 S.W.2d 916, 917 (Mo. 1995).
In Kentucky Bar Association v. Waller, 929 S.W.2d 181, 183 (Ky. 1996), the Supreme Court of Kentucky observed that the statements need not be false to pursue disciplinary action:
Respondent appears to believe that truth or some concept akin to truth, such as accuracy or correctness, is a defense to the charge against him. In this respect he has totally missed the point. There can never be a justification for a lawyer to use such scurrilous language with respect to a judge in pleadings or in open court. The reason is not that the judge is of such delicate sensibilities as to be unable to withstand the comment, but rather that such language promotes disrespect for the law and for the judicial system. Officers of the court are obligated to uphold the dignity of the Court of Justice and, at a minimum, this requires them to refrain from conduct of the type at issue here.
Thus, an attorney's speech may be sanctioned if it is highly likely to obstruct or prejudice the administration of justice. "These narrow restrictions are justified by the integral role that attorneys play in the judicial system, which requires them to refrain from speech or conduct that may obstruct the fair administration of justice." Office of Disciplinary Counsel v. Gardner, 793 N.E.2d 425, 428-29 (Ohio 2003).
Accordingly, we conclude that Slavin's in-court remarks were not protected by the First Amendment. By this holding we intend to limit an attorney's criticisms of the judicial system and its officers to those criticisms which are consistent in every way with the sweep and the spirit of the Rules of Professional Conduct. See Fla. Bar v. Ray, 797 So. 2d 556, 560 (Fla. 2001).
2004 WL 1908797 * 8-9 (footnote omitted).
The Office of Administrative Law Judges has afforded reciprocal effect to the Tennessee Supreme Court's suspension order. In the matter of Slavin, 2004-MIS-5 (ALJ Sept. 28, 2004).
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; GIVING RECIPROCAL EFFECT TO SUSPENSION ORDER OF STATE COURT BEFORE WHICH ATTORNEY HELD LAW LICENSE
In In re Slavin, ARB No. 05-003, ALJ No. 2004-MIS-5 (ARB Nov. 30, 2005), the ARB affirmed the Chief Administrative Law Judges' order according reciprocal effect to an order of the Supreme Court of Tennessee suspending Edward A. Slavin, Jr. from the privilege of practicing law for two years. The Chief ALJ had evaluated the case under the Selling v. Radford, 243 U.S. 46 (1917) criteria. The ARB had previously also given reciprocal effect to the Tennessee Supreme Court's suspension order under Selling. Reviewing the matter under a de novo standard of review, the ARB found that Mr. Slavin's petition for review had failed to address the Sellings factors and had not proffered any error in the Chief ALJ's or ARB's application of these factors to the facts of his case.
[STAA Digest II M]
DISCOVERY; REFUSAL TO COMPLY WITH PROTECTIVE ORDER; CERTIFICATION TO FEDERAL DISTRICT COURT; SANCTION IMPOSING ATTORNEY FEES
In Coates v. Southeast Milk Institute, Inc., 2004-STA-60 (ALJ Feb. 10, 2005), the Respondent inadvertently produced a privileged document, which the Complainant disseminated to the Respondent's clients and customers. The Respondent filed a motion for a protective order. The ALJ granted the motion, instructing the Complainant to return the document and refrain from relying on or using the document during the proceedings. The ALJ reconsidered this ruling upon motion by the Complainant, but reaffirmed his previous ruling. The ALJ later granted summary judgment to the Respondent. Subsequently, the Respondent filed a motion for sanctions against the Complainant because he failed to comply with the ALJ's protective order, and to certify the facts to a U.S. Court as permitted under 29 C.F.R. § 18.29(b). The Respondent later supplemented this motion to include the activities of the Complainant's agent.
In ruling on the motion, the ALJ observed that he had received copies of documents confirming that the Complainant continues to violate the protective order. The ALJ found that it was clear that the Complainant had no intention of complying with the protective order. The ALJ, therefore granted the Respondent's motion and certified the facts to the U.S. District Court for the Middle District of Florida, requesting that the court take appropriate actions as if the violations had occurred before that court.
The matter was referred to a U.S. Magistrate Judge who conducted a hearing and issued a Report and Recommendation. Southeast Milk, Inc. v. Coates, No. 5:05-mc-3-Oc-10GRJ (M.D.Fla. May 31, 2005). The Complainant did not challenge that he had violated the ALJ's protective order and agreed to return all copies of the privileged document to the Respondent. The Magistrate found that attorneys' fees would be imposed against the Complainant as a sanction for repeatedly disobeying the ALJ's orders, thereby causing the Respondent to move for sanction before the ALJ, and then petition the district court for enforcement. The fees imposed related to seeking the sanction before the ALJ and the proceedings before the district court.
The District Court thereafter adopted and confirmed the Magistrate's Report and Recommendation. Southeast Milk, Inc. v. Coates, No. 5:05-mc-3-Oc-10GRJ (M.D.Fla. July 5, 2005).
[STAA Digest II M]
COSTS IMPOSED AGAINST COMPLAINANT; ALJ DOES NOT HAVE THE AUTHORITY TO AWARD
In Sabin v. Yellow Freight System, Inc., ARB No. 04-032, ALJ No. 2003-STA-5 (ARB July 29, 2005), the ARB found that that the ALJ did not have the authority to award to the Respondent $150 for the attendance of its witness on the scheduled hearing date where the Complainant withdrew his objections to the OSHA findings at the hearing. The ARB distinguished Hester v. Blue Bell Servs., 1986-STA-11 (Sec'y July 9, 1986), because this was not a case in which the Complainant was allowed to take a voluntary dismissal conditioned on payment of the opposing parties' costs.
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT
See Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), in the Miscellaneous Whistleblower Case Digest for casenotes relating to the standards applicable to a 29 C.F.R. § 18.34(g)(3) suspension proceeding.
[STAA Whistleblower Digest II M]
ATTORNEY SUSPENSION BEFORE OALJ AND ARB; RECIPROCAL EFFECT GIVEN TO STATE SUSPENSION
In In re Slavin, ARB No. 04-172 (ARB Oct. 20, 2004), the ARB issued a Final Order Suspending Attorney From Practice Before the Administrative Review Board giving thereby reciprocal effect to a suspension order issued by the Tennessee Supreme Court on August 27, 2004. Board of Professional Responsibility of Supreme Court of Tennessee v. Slavin, 145 S.W.3d 538 (Tenn. Aug 27, 2004) (No. M2003-00845-SC-R3-BP). Both the Tennessee Supreme Court and the U.S. Supreme Court denied stays of the Tennessee suspension order. See Slavin v. Bd. of Professional Responsibility of the S. Ct. of Tennessee, No. 04A260 (U.S. Oct. 4, 2004). In In re Slavin, 2004-MIS-5 (ALJ Sept. 28, 2004), the Chief ALJ similarly suspended the attorney from practice before the Office of Administrative Law Judges based on reciprocal application of the Tennessee Supreme Court order suspending Slavin. Similar to the procedure before the ARB, the Chief ALJ had issued a Order to Show Cause, and found that "Mr. Slavin's response to the Order to Show Cause does not establish that the Tennessee proceedings were in violation of due process, were lacking in proof of misconduct, or that a grave injustice would result in giving effect to the Tennessee Supreme Court's judgment. See Selling v. Radford, 243 U.S. 46, 50-51 (1917)."
[STAA Whistleblower Digest II M]
ATTORNEY SUSPENSION FROM PRACTICE; IMPACT ON FILINGS MADE PRIOR TO SUSPENSION
In Howick v. Campbell-Ewald Co., ARB Nos. 03-156 and 04-065, ALJ Nos. 2003-STA-6 and 2004-STA-7 (ARB Nov. 30, 2004), the ARB considered filings made by the Complainant's attorney that predated that attorney's suspension from practice before the Board.
II M Rule 11 sanctions when sections
18.34(g)(3) and 18.36 are not
appropriate remedies
In
Earwood v. Dart Container Corp., 93-STA-16 (ALJ
Sept. 12, 1994), adopted in part and reversed in part
both on other grounds(Sec'y Dec. 7, 1994), one Respondent petitioned for
sanctions under Rule 11 of the Federal Rules of Civil Procedure.
The ALJ noted that in Rex v. Ebasco Service, Inc., 87-ERA-
6 (Sec'y Mar. 4, 1994), the Secretary had held that sanctions
pursuant to Fed. R. Civ. P. 11 did not apply to a situation which
was provided for or controlled by Department of Labor
Regulations. In the ALJ's view, however, the relief provided by
section 18.34(g)(3) and 18.36 -- exclusion of attorneys from on
ongoing proceeding and disqualification from appearing in future
proceeding -- was not an appropriate relief under the
circumstances before him, and therefore consideration of Rule 11
sanctions was proper. Nonetheless, the ALJ found that although
the complaint appeared to have been pursued merely on strong
suspicion, it was not pursued on such inadequate grounds, bad
faith, or an improper purpose as to warrant imposition of Rule 11
sanctions.
The Secretary adopted the ALJ's recommendation that Complainant
be found not to have established a prima facie case of
discrimination by the Respondent which petitioned for Rule 11
sanctions, but only noted that the ALJ had denied the motion for
Rule 11 sanctions, and did not discuss the ALJ's legal theory
about those sanctions.
[Editor's note: In Rex, the Secretary had
rejected the recommendation of the ALJ to impose Rule 11
sanctions for the vexatious pursuit of a groundless action. The
Secretary concluded that such conduct "would constitute
dilatory, unethical, unreasonable or bad faith conduct covered by
29 C.F.R. § 18.36(b)." Rex, slip op. at 6. The
ALJ's theory in Earwood is an interesting attempt to
distinguish Rex.]
[STAA Whistleblower Digest II M]
ATTORNEY QUALIFICATION PROCEEDING
In In re Slavin, 2004-MIS-2 and 2004-STA-12 (ALJ Mar. 31, 2004), the Associate Chief ALJ conducted a 29 C.F.R. § 18.34(g) hearing to determine the qualifications of the Complainant's counsel based on his history of disqualifications, sanctions and admonishments before the Associate Chief ALJ, other ALJs, and other tribunals. Based on the procedure described by the concurring opinion in In re Slavin, ARB No. 02-109, ALJ No. 2002-SWD-1 (ARB June 30, 2003), the Associate Chief ALJ issued a "Notice of Judicial Inquiry" which set out in specific detail prior judicial rulings on which OALJ took official notice under 29 C.F.R. § 18.45 and on which OALJ proposed to disqualify the attorney from appearing before OALJ. The attorney did not identify in response any issue of fact on which an evidence taking hearing was required. Accordingly the Associate Chief ALJ decided the matter based on the matters over which official notice had been taken and the attorney's arguments in response to the Notice. The attorney's essential defense was that he was being sanctioned for First Amendment protected speech as an outspoken critic of the Department of Labor. The Associate Chief ALJ, however, found that such a claim was a misrepresentation -- that the attorney was being sanctioned for his disruptive actions and malfeasance during in-court proceedings where his First Amendment's rights are subject to his ethical obligations as an attorney. Moreover, the judge observed that much of the attorney's misconduct, such as neglecting appellate briefing requirements and deadlines, was not even arguably protected First Amendment speech. Based on the long history of misconduct and the failure of lesser sanctions to moderate the attorney's behavior, among other factors, the Associate Chief ALJ imposed on the attorney a five year disbarment from appearing in any matter before DOL OALJ.
[STAA Whistleblower Digest II M]
ATTORNEY DISQUALIFICATION PROCEDURE; RECUSAL
In In re Slavin, 2004-MIS-2 and 2004-STA-12 (ALJ Mar. 31, 2004), the Associate Chief ALJ gave notice that he would be conducting a Judicial Inquiry pursuant to 29 C.F.R. § 18.34(g) to determine the qualifications of the Complainant's counsel. The Complainant and his attorney filed a motion requesting that the Associate Chief ALJ recuse himself "sua sponte," arguing essentially that the judge would be called as a witness to testify as to his own actions and had a conflict of interest as the instigator of the Judicial Inquiry. The motion was denied because (1) innuendo that the presiding ALJ has an improper motive for conducting a section 18.34(g) hearing was insufficient to establish grounds for recusal, (2) the request that the judge recuse himself "sua sponte" made it ambiguous as to whether the motion was a request or merely a suggestion, and (3) the nature of a section 18.34(g)(3) hearing is in the form of a judicial inquiry rather than an adversarial proceeding and the judge is not acting as a prosecuting "party" as in a typical adjudicatory proceeding.
[STAA Whistleblower Digest II M]
ATTORNEY DISQUALIFICATION PROCEDURE; WHETHER ATTORNEY CAN CONDUCT DISCOVERY AGAINST ALJ WHO INSTITUTED THE PROCEDURE
In In re Slavin, 2004-MIS-2 and 2004-STA-12 (ALJ Mar. 31, 2004), the Associate Chief ALJ gave notice that he would be conducting a Judicial Inquiry pursuant to 29 C.F.R. § 18.34(g) to determine the qualifications of the Complainant's counsel. The Complainant and his attorney thereafter filed a motion requesting to take the videotaped depositions of the Associate Chief ALJ, the Chief ALJ and an OALJ staff attorney. The motion was denied because it did not state the relevancy of the requested depositions. Moreover, the judge also rejected the supposition that OALJ becomes a "party" against whom discovery may be had if section 18.34(g)(3) is invoked, citing the concurring opinion in In re Slavin, ARB No. 02-109, ALJ No. 2002-SWD-1 (ARB June 30, 2003). The judge observed that if this was not the rule "an attorney could block any disciplinary proceeding by the simple expedient of naming as a witness the judge who observed the misconduct and instituted a section 18.34(g)(3) proceeding." (citations omitted).
[STAA Whistleblower Digest II M]
ATTORNEY DISQUALIFICATION PROCEDURE; GOVERNING RULES
In In re Slavin, 2004-MIS-2 and 2004-STA-12 (ALJ Mar. 31, 2004), the Associate Chief ALJ conducted a 29 C.F.R. § 18.34(g)(3) hearing to determine the qualifications of the Complainant's counsel, a member of the Tennessee bar. The judge noted that OALJ conducts hearings throughout the United States, and that attorneys appearing before OALJ are not required to be a member of the bar in the state in which the hearing is conducted. The ALJ determined that he would cite the ABA Model Rules of Professional Conduct in his decision on the section 18.34(g)(3) proceeding, citing in support the ABA rule at MRPC 85 and the corresponding Tennessee rule at TRPC 8.5, which both provide that in applying choice of law on disciplinary conduct, where the conduct is in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits govern, unless the rules of the tribunal provide otherwise. The ALJ noted that the MRPC and the TRPC did not differ significantly in regard to the conduct at issue except where specifically discussed in the decision. In assessing the appropriate sanction, the ALJ applied the ABA's Standards for Lawyer Discipline and Disability Proceedings (1992).
[STAA Whistleblower Digest II M]
FALSE STATEMENT BY ATTORNEY TO ARB; POSSIBLE SANCTIONS AND GENERAL LOSS OF CREDIBILITY
In Somerson v. Mail Contractors of America, ARB No. 03-042, ALJ No. 2003-STA-11, slip op. at 4 (ARB Oct. 14, 2003), the ARB struck Complainant's brief where the brief was not timely filed despite several extensions of time and where the brief was filed as an "omnibus" brief which consolidated the briefing for two other cases appealed to the ARB despite the ARB's order denying Complainant's motion for such consolidated briefing. In finding the brief untimely, the ARB found that Complainant's attorney made a patently false statement when he argued that he filed the omnibus brief before receiving a pertinent ARB order because the ARB order was directly referred to in omnibus brief. The ARB admonished the attorney that "[s]uch falsehoods by attorneys appearing before the Board will not be tolerated and may subject the offending attorney to sanctions. Moreover, making such false statements to the Board undermines [Complainant's attorney's] ability to effectively represent his clients because the Board will be reluctant to accept at face value any statement counsel makes that is not confirmed by independent collaborating evidence."
To the same effect Somerson v. Mail Contractors of America
, ARB No. 03-055, ALJ No. 2002-STA-44 (ARB Nov. 25, 2003).