NOTICE OF REVIEW MUST SPECIFY ISSUES; SEEKING TO REITERATE ALL ARGUMENTS MADE AT THE HEARING IMPERMISSIBLY ATTEMPTS TO PUT THE BURDEN ON THE ARB TO UNEARTH THE BASIS FOR THE APPEAL
In Administrator v. American Truss, ARB No. 05-032, ALJ No. 2004-LCA-12 (ARB Feb. 28, 2007), the Respondent sought "to reiterate all arguments made at the hearing and in the Respondent's Closing Statement" and to "request[] that the Board consider these issues on appeal as well." The ARB, however, noted that, in accepting the Petition, it had agreed to review only "[w]hether the ALJ properly calculated [the] backpay award." The Board observed that by "request[ing] that we ferret out and review any and all arguments it made below – without explaining which ones have merit, and where the [ALJ] may have erred," the Respondent "clearly runs afoul" of the regulations requiring that the petition for review "[s]pecify the issue or issues in the [ALJ] decision giving rise to such petition" and "[s]tate the specific reason or reasons why the party petitioning for review believes such decision and order are in error." 20 C.F.R. § 655.845(b); see 20 C.F.R. § 655.845(e)(1). The ARB cited authority to the effect that by attempting to "incorporate" all arguments made below, a litigant impermissibly attempts to transfer its duty to make arguments to the appellate body. The ARB, therefore, held that the Respondent waived the arguments it had not properly presented for review.
WAIVER OF ASSIGNMENT OF ERROR; MERE PASSING REFERENCE DURING HEARING TO CONCERN ABOUT CERTAIN CALCUATIONS WITHOUT IDENTIFICATION OF THAT CONCERN AS AN ISSUE IN PRE-HEARING SUBMISSION OR CLOSING ARGUMENT
In Administrator v. American Truss, ARB No. 05-032, ALJ No. 2004-LCA-12 (ARB Feb. 28, 2007), the ARB found that the Respondent had waived assignments of error relating to vacation and holiday hours, where the Respondent's pre-hearing submission and closing statement did not refer to vacation and holiday hours, and where a passing exchange at the hearing did not put the ALJ on notice that the Respondent sought a ruling on vacation and holiday hours.
Berg v. Swift Transportation, ARB No., 07-046, ALJ No. 2006-STA-13 (ARB Feb. 28, 2007)
Title: Final Decision and Order Dismissing Complaint
In Berg v. Swift Transportation, ARB No., 07-046, ALJ No. 2006-STA-13 (ARB Feb. 28, 2007), the ARB affirmed the ALJ's recommended order of dismissal based on the Complainant's abandonment of the complaint. The Complainant had repeatedly failed to comply with procedural orders and neither appeared for nor explained his absence from the hearing. The ARB noted that "[d]ismissal as a sanction for failure to prosecute is a matter within the sound discretion of the administrative law judge. "
REQUEST FOR HEARING; FAILURE TO SERVE RESPONDENT DOES NOT DEPRIVE THE ALJ OF JURISDICTION
In Howell v. PPL Services, Inc., ARB No. 05-094, ALJ No. 2005-ERA-14 (ARB Feb. 28, 2007), the Complainant filed a request for a hearing on his ERA whistleblower complaint with the Chief ALJ, but failed to serve a copy of that hearing request on the Respondent. The presiding ALJ held that that because of that service deficiency, she lacked jurisdiction to hear the complaint. The ARB reversed the ALJ on this ruling:
Our recent decision in Shirani v. Calvert Cliffs Nuclear Power Plant, Inc. (Constellation Energy Group) held that a party's failure to comply with the service requirements of 29 C.F.R. § 24.4 (d)(3) does not deprive the ALJ of jurisdiction to hear and decide the merits of a whistleblower case brought under the ERA or any other statute that 29 C.F.R. Part 24 covers. We concluded that the plain meaning of the language contained in sections 24.4 (d)(2) and (d)(3) and the regulatory history of these rules cannot be construed as indicating that the Secretary of Labor intended the service requirement to be jurisdictional. Moreover, we held that failure to properly serve a copy of the request for a hearing is not inherently prejudicial.
Slip op. at 3-4 (footnote omitted).
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING IS NOT AVAILABLE BASED ON ATTORNEY ERROR
In Howell v. PPL Services, Inc., ARB No. 05-094, ALJ No. 2005-ERA-14 (ARB Feb. 28, 2007), the Complainant argued that he was entitled to equitable tolling of the limitations period for filing and ERA whistleblower complaint based on his first attorney's "inadequate representation." The ARB, however, affirmed the ALJ finding that equitable tolling did not apply: "We have consistently held … that attorney error does not constitute an extraordinary factor because "[u]ltimately, clients are accountable for the acts and omissions of their attorneys." Slip op. at 5 (footnote omitted).
Howard v. Cool Express, Inc., ARB No. 06-012, ALJ No. 2005-STA-33 (ARB Feb. 28, 2007)
ADVERSE ACTION; NO ADVERSE ACTION AS A MATTER OF LAW WHERE EMPLOYER HIRED THE COMPLAINANT FOR A SINGLE ASSIGNMENT AND WAS UNDER NO OBLIGATION TO HIRE HIM AGAIN
In Howard v. Cool Express, Inc., ARB No. 06-012, ALJ No. 2005-STA-33 (ARB Feb. 28, 2007), the ARB found that substantial evidence supported the ALJ's finding of fact that the Respondent hired the Complainant for one assignment and was not obligated to hire him again. The ARB found correct as a matter of law, the ALJ's ruling that the Complainant's failure to prove that the Respondent took an adverse action against him required dismissal of the complaint.
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), 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.
PRIMA FACE CASE; EMPLOYER'S BURDEN TO ARTICULATE A LEGITIMATE, NON-DISCRIMINATORY REASON FOR THE ADVERSE ACTION IS NOT A BURDEN OF PROVING THAT IT WAS ACTUALY MOTIVATED BY THE ARTICULATED REASON
In Morriss v. LG&E Power Services, LLC, ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007), the ALJ erred in stating that after the complainant shows adverse action, protected activity, and nexus, the burden of proof shifts to the respondent to prove that it took the adverse action for a legitimate, non discriminatory reason. Rather, the respondent's burden at that point is only to articulate or produce evidence of a non discriminatory reason for taking the adverse action. The ALJ also erred in evaluating the credibility of the Respondent's witnesses at that stage of the proceedings, and putting the burden on the Respondent to prove that it had no intent. At this stage, the respondent does not need to persuade the adjudicator that it was actually motivated by the proffered reasons, but only raise a genuine issue of fact as to whether it discriminated against the plaintiff.
DIRECT EVIDENCE OF RETALIATION; IF DRAWING OF INFERENCE IS REQUIRED, THE EVIDENCE IS NOT DIRECT EVIDENCE
In Morriss v. LG&E Power Services, LLC, ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007), the ARB described direct evidence of retaliation:
Direct evidence of retaliation is "smoking gun" evidence; evidence that conclusively links the protected activity with the adverse action. Such evidence must speak directly to the issue of discriminatory intent and may not rely on the drawing of inferences. Direct evidence does not include "stray or random remarks in the workplace, statements by nondecisionmakers or statements by decisionmakers unrelated to the decisional process."
Slip op. at 34 (footnotes omitted).
WHISTLEBLOWER STATUS DOES NOT ENTITLE A COMPLAINANT TO DISPENSATION IN REGARD TO PERFORMANCE STANDARDS
The fact that a complainant was a whistleblower does not entitle him to dispensation in regard to performance standards. Morriss v. LG&E Power Services, LLC, ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007).
PRETEXT; BELIEF THAT THE COMPLAINANT POSED A THREAT OF VIOLENCE AT WORK; EX PARTE RESTRAINING ORDER
In Morriss v. LG&E Power Services, LLC, ARB No. 05-047, ALJ No. 2004-CAA-14 (ARB Feb. 28, 2007), the ALJ erroneously placed the burden upon the Respondent to prove that the Complainant posed a threat of violence at work. Rather, the Complainant had the burden of proving that the Plant Manager did not genuinely believe that the Complainant posed a threat of workplace violence and therefore, his asserted reliance on this belief was merely a pretext for discrimination. The Board wrote: "There is a crucial distinction here. It is not sufficient for [the Complainant] to establish that the decision to terminate [the Complainant]'s employment was not "just, or fair, or sensible . . . rather he must show that the explanation is a phony reason." Thus, [the Complainant] must show that the [Plant Manager]'s proffered explanations are false and a pretext for discrimination." Slip op. at 42 (footnote omitted).
The ALJ had declined to infer that "ex parte Domestic Relations Orders raise an inference of a tendency toward violence against fellow employees or anyone else at work." The ARB found that the ALJ's ruling ignored pertinent facts: that the restraining order was entered after a domestic relations state court judge heard evidence and that the Complainant's wife was herself an employee of the Respondent who had been the subject of violence at the Complainant's hands. The Board wrote: "We do not believe that it was necessary for [the Plant Manager] to wait until the Complainant more seriously injured [his wife] or another employee while at work to reasonably believe that the Complainant might pose a threat of workplace violence and to act to fulfill his duty to provide his workforce, including [the Complainant's wife], with a safe and secure work environment. Thus, while the evidence of record did not convince the ALJ that [the Complainant] posed a threat of violence in the workplace, we find that [the Complainant] has failed to establish by a preponderance of the evidence that [the Plant Manager] did not genuinely believe this to be true.
In Rippley v. National Equipment Services, Inc., ARB No., 06-015, ALJ No. 2005-STA-58 (ARB Feb. 27, 2007), the ARB affirmed the ALJ's recommended order of dismissal based on the Complainant's abandonment of the complaint. The Complainant had repeatedly failed to comply with procedural orders and neither appeared for nor explained his absence from the hearing. The ARB noted that "[d]ismissal as a sanction for failure to prosecute is a matter within the sound discretion of the administrative law judge. "
Skipper v. SAIA Motor Freight, ARB No. 06-108, ALJ No. 2006-STA-53 (ARB Feb. 27, 2007)
Title:
Final Decision and Order Approving Settlement and Dismissing Complaint
APPEAL OF SCA DETERMINATION; WHERE THERE IS A PENDING MOTION TO RECONSIDER, AN APPEAL IS PREMATURE
In Washington Consulting Group, ARB No. 06-115 (ARB Feb. 26, 2007), the Wage and Hour Administrator issued a final ruling under the SCA finding that "‘air traffic control instructors' employed on [FAA Contract No. DTFA-02-01-D-1253] could satisfy the ‘teachers' exemption under the [Fair Labor Standards Act] as professional employees pursuant to Part 541, if they meet certain criteria." Twelve air traffic controllers filed a letter with the ARB appealing the decision. Acknowledging that the appeal was not timely, they requested that their appeal be accepted because they were not parties to the initial complaint and had not been notified of the Administrator's ruling. The ARB issued an order to show cause why the appeal should not be dismissed as untimely, and the petitioners responded that several of the petitioners had filed a motion for reconsideration to which Wage and Hour had not responded. Wage and Hour denied any record of receiving such a motion. The ARB ordered the petitioners to produce evidence of a motion for reconsideration, noting that if there was a pending motion for reconsideration, the current appeal was premature. In response they came forward with evidence that they had filed a motion for reconsideration with Wage and Hour. The ARB directed Wage and Hour to respond. The Administrator responded that it had not received the ARB's order until the day the response was due, and that it would take "a reasonable period until an appropriate response is issued." After an additional 30 days the ARB ordered Wage and Hour to show cause why the case should not be remanded for consideration of the motion. Wage and Hour responded that its earlier response failed to clearly express its intention to reconsider, that in fact it was now in the process of reconsidering, and therefore it had no objection to a remand. The ARB held that the appeal was premature and dismissed without prejudice.
Mozingo v. The South Financial Group Inc., ARB No. 07-040, ALJ No. 2007-SOX-2 (ARB Feb. 8, 2007)
REMOVAL TO FEDERAL COURT; DISMISSAL OF THE APPEAL (RATHER THAN DISMISSAL OF THE COMPLAINT)
In Mozingo v. The South Financial Group Inc., ARB No. 07-040, ALJ No. 2007-SOX-2 (ARB Feb. 8, 2007), the ALJ granted summary decision against the Complainant, who took an appeal to the ARB. On the date of the appeal there were only four days left in the 180 day period provided for by 18 U.S.C.A. § 1514A(b)(1)(B); 29 C.F.R. § 1980.114, for the ARB to issue its decision. About one week later, the Complainant filed a Notice of Intent to File Lawsuit in Federal Court. The Board issued an order to show cause why the appeal should not be dismissed. The Complainant's response was in the form of a Motion to Dismiss Complaint Without Prejudice, which the ARB denied. Rather, the ARB simply dismissed the appeal.
