2 The Secretary of Labor's authority to decide this case has been delegated to the Administrative Review Board. See 49 U.S.C.A. § 31105(b)(2)(C) and Secretary's Order No. 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002).
5See Lee's May 28, 2002 letter to ALJ. The ALJ thoroughly and fairly recites Lee's alleged facts in response to Schneider's Motion for Summary Decision. R. D. & O. at 2. Therefore, although we do not adopt the entire R. D. & O., we adopt this portion of it.
6See Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, ALJ No. 1999-STA-21, slip op. at 2 (ARB Nov. 30, 1999). In his recommended decision, the ALJ failed to set out the standard for a summary decision or to indicate whether he had specifically applied Section 18.40(d). Nor does he indicate whether he had examined the evidence or inferences in the light most favorable to Lee. Furthermore, in several instances, he appears to have weighed the evidence that Lee presented and made findings of fact rather than determining whether genuine issues of material fact exist. See R. D. & O. at 3-5. For example, in discussing Lee's contention that a Schneider official concealed the true nature of his termination, the ALJ states that, "In the instant case, no such concealment occurred. There was no active concealment." Or, "Complainant's second rationale for tolling the statutory period is also unpersuasive," and "I find Complainant's third rationale for his late filing equally unconvincing." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1985) ("[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.").
7 Although the ALJ did not explicitly determine whether genuine issues of material fact exist, he did apply relevant and established legal precedent concerning equitable tolling. Therefore, we adopt and incorporate the authorities cited at 3-4 of his Recommended Decision and Order.