MAIN HEADINGS

I. OVERVIEW
II. PROCEDURE
III. WEIGHING OF EVIDENCE AND INTERPRETATION OF LAW, GENERALLY
IV. BURDEN OF PROOF AND PRODUCTION
V. PROTECTED ACTIVITY
VI. ADVERSE ACTION
VII. EMPLOYER/EMPLOYEE
VIII. MISCELLANEOUS DEFINITIONS
IX. DAMAGES AND REMEDIES
X. SETTLEMENTS
XI. DISMISSALS
XII. RES JUDICATA/COLLATERAL ESTOPPEL
XIII. RELATIONSHIP WITH OTHER REMEDIES

DIVISION I -- OVERVIEW

A. Statutory/regulatory scheme

1. Generally

2. Delegation of investigatory authority to Assistant Secretary

3. Retroactive effect of amendments

B. Purposes

1. To protect against discriminatory treatment

2. To ensure the flow of information

3. To vindicate private rights

A. Applicability of 29 C.F.R. Part 18

B. Complaint

1. Filing of complaint, generally

2. Timeliness of filing of request for hearing or complaint

a. Effect of failure to object to Assistant Secretary's findings

b. Sufficiency of objections

c. Computation of timeliness

i. Postmark

ii. Mail days

iii. Date of initiation of period

iv. Complaint filed by telephone

d. Equitable tolling

i. STAA time limits directory; not jurisdictional

ii. Circumstances justifying equitable tolling

e. Continuing violation theory

3. Complaint not to be treated as formal legal pleading

4. Underlying violation

C. Prosecution of complaint

1. Obligation of DOL of prosecute

2. Right of complainant to continue despite Assistant Secretary's deferral to arbitration proceeding

3. Right of Assistant Secretary to file brief where he or she had earlier deferred to arbitration proceeding

D. Amendments to pleadings

1. Generally

2. Impleading of party

3. Second hearing request notice

E. Powers and responsibilities of Administrative Law Judge

1. Power to examine witnesses

2. Power to issue orders

3. Power to raise issue not addressed below

4. Responsibility to afford due process

5. Recusal/removal

6. Responsibility to afford opposing party opportunity to respond to motion

7. Power to remand

8. Scope of discretion on remand

F. 120 days for Secretary's decision

G. Nature of ALJ decision: Recommended or Final

1. In General

2. Settlements

3. Withdrawals

4. Other dismissals

H. Scope of review

1. Case or controversy -- agency not bound

2. Deferral to findings of Assistant Secretary (see Evidence)

3. Deferral to other proceedings (see Evidence)

4. Secretary's/ARB's standard of review

a. ALJ's factual findings

b. Legal issues

c. Raising of new theories, issues or evidence before the Secretary

5. Federal court's standard of review

a. Generally

b. Reinstatement proceeding (see Damages)

c. Deferral to Secretary, not ALJ

I. Motion for reconsideration/reopening of the record

J. Service of decision and other service and filing issues

K. Discovery issues

L. Stay for bankruptcy proceedings or enforcement of Secretary's order

M. Misconduct/Sanctions

N. Evidence; admissibility issues

O. Photographing or broadcasting of hearing

P. Summary decision

Q. Interlocutory appeal

R. Law of the case

S. New evidence/argument

T. Amicus

U. Continuance

V. Consolidation

W. Choice of Law

X. Motion for Stay

A. Statutory and regulatory interpretation

B. Relationship to other acts

C. Weight and effect of Assistant Secretary's findings

D. Deferral to other proceedings

1. Grievance proceeding

2. NLRB proceeding

3. Arbitration proceeding

a. Requirement that proceeding be examined for adequacy

b. Deferral not required

[See also STAA Digest XIII C]

E. Conflict between STAA and Collective Bargaining Agreement

F. Complainant's motive for bringing complaint

G. Credibility determinations

H. Counsel as witness

I. Pro se complainant's burden of proof

J. Miscellaneous

A. Prima facie case

1. Elements, generally

2. Establishing causation element

a. Generally

b. Circumstantial evidence

i. Generally

ii. Proximate timing of adverse action

iii. Showing that respondent's reason for adverse action was baseless

iv. Pattern of retaliation

c. Illustrative cases

d. Requirement that respondent have been aware of protected activity

3. Error to consider respondent's reasons for adverse action at prima facie phase

4. Derivative complaint

B. Articulation of nondiscriminatory reason for adverse action

1. Generally

2. Particular reasons

a. Accident record

b. Fighting or challenge to fight

c. Personal attitude

d. Refusal to attend counseling session

e. Other reasons

3. No nondiscriminatory reason articulated

4. St. Mary's Honor Center; bursting bubble upon articulation; relevance of prima facie case analysis after hearing on merits and articulation

C. Pretext

1. Generally

2. Illustrative cases

a. Pretext established

b. Pretext not established

3. Respondent's perception of reasons controls

4. Discrimination against similarly situated employees

5. Balancing of business interests with safety concerns

6. Respondent's rebuttal

D. Dual motive

1. When implicated

a. Relationship between pretext and dual motive analysis

2. Establishing dual motive

3. Illustrative cases

E. DeFord "entitlement" theory

F. Blacklisting; motive; loss of employment opportunity

A. Generally

1. Element of prima facie case

2. Section 31105(a)(1)(A); filing of complaint or instituting of proceeding

a. Statutory provision

b. Interpretation of "relating to"; pleading requirements

c. Perceived rather than actual violations

d. Resolved safety complaints

3. Section 31105(a)(1)(B)(i) - "federal motor safety violation" (formerly referred to as "when" clause)

a. Statutory provision

b. Complainant's subjective opinion

c. Prospective violation

d. Authority of DOL to find safety violation; standard of proof

e. Applicability of reasonable person and communication requirements to "when clause"

4. Section 31105(a)(1)(B)(ii) - "reasonable apprehension of injury" clause (formerly referred to as "because" clause)

a. Statutory provision

b. Reasonable person standard

i. Generally; Applicability of Pensyl

ii. Hazardous condition does not have to be confirmed

iii. Illustrative cases

c. Communication requirement

i. In general

ii. Communication requirement applies only to unsafe equipment

iii. Sufficiency of articulation

iv. Communication not feasible

v. Opportunity for timely correction

vi. Correction made but adverse action taken against complainant

5. Mixed safety and non-safety reasons for work refusal

6. Effect of complainant's compliance with order to work after raising safety complaint

B. Specific protected activity

1. Activities protected under section 31105(a)(1)(A)

a. Internal complaints, generally

b. Counseling other employees about DOT regulations

c. DOT proceedings, and proceedings under other federal and state laws, arbitration, and employer hearings

i. In general

ii. Grievance proceedings

iii. Complaint about internal shop conditions

iv. Complaints to state official

v. Support for co-workers

2. Activities protected under section 31105(a)(1)(B)

a. Illness or physical condition

i. Generally

ii. When clause; complainant's subjective opinion

iii. Because clause; reasonable apprehension and communication requirements

iv. Fatigue

v. Use of medication

b. Defective vehicle

c. Unsafe conditions

d. Refusal to violate hours of service regulation

e. Refusal to drive with unsafe co-driver

f. Refusal to speed

g. Moving equipment to safe location

A. Generally

B. Specific actions

1. Constructive discharge

2. Refusal to pay lodging

3. Refusal to pay worker's compensation

4. Other actions

C. Case or controversy

D. Hostile work environment

A. Employee

1. Generally

2. Specific occupations

a. Escort vehicle driver

b. Mechanic

c. Armored truck messenger

d. Government employee

e. Individual who directly affects commercial motor vehicle safety in the course of employment by a commercial motor carrier

3. Permissibility of raising of issue by ALJ

B. Employer

1. Generally

2. Personal liability

3. Joint employers/Joint liability

4. "In commerce"

5. Specific employers

a. Corporations

b. Leasing agent

c. Other

6. Successorship liability

7. Vehicle rating or weight

A. Breakdown artist

B. Commercial motor vehicle; commercial motor carrier

C. "On-duty" time

D. Person

IX. Damages and remedies

A. Reinstatement

1. Validity of regulation

2. Purpose of provision

3. Secretary's finding of reasonable cause/immediate effect of order

4. Enforcement proceeding

a. Immediate enforceability

b. Complainant's right to intervene

c. District court's standard of review

5. Unconditional offer of reinstatement precludes subsequent order of reinstatement

6. Complainant's decision not to seek reinstatement

7. Complainant no longer qualified

8. Terminal closed; reassignment

9. Front pay

10. Stay of reinstatement order

11. Concern that complainant may be a threat to co-workers

IX. Damages and remedies

B. Compensatory damages

1. Generally

a. No special economic treatment

2. Back pay

a. Generally

i. Mandatory nature

ii. Purpose to cease employer misconduct

iii. Burden of proof on employer

iv. Absence of request for consequential damages

b. Computation

i. Generally; Quarterly base period/weekly rate

ii. Representative employee formula

iii. Continuation until reinstatement

iv. Interim earnings

v. Part-time earnings

vi. Situations in which it would be impossible to determine which job the complainant would have performed -- Seasonal work

vii. Unemployment compensation not deducted

viii. Prejudgment interest

ix. Tolling based on unconditional offer of reinstatement

x. Salary of replacement driver not standard

xi. Liability ends when complainant's employment would have ended without regard to discrimination

xii. Exclusion of layoff periods

xiii. Inclusion of ancillary benefits

xiv. Moonlighting

xv. Impact of bankruptcy order

xvi. After acquired evidence

xvii. Miscellaneous deductions

3. Mitigation of damages

a. Burden of proof

b. Substantially equivalent job

c. Delay in seeking employment

d. Delay based on employer's failure to reinstate

e. Pain and suffering; comparative award

f. Requirement that employee act reasonably to maintain subsequent employment

IX. Damages and remedies

C. Litigation expenses

IX. Damages and remedies

D. Other relief

1. Cleansing of work record

2. Posting of notice of STAA obligations

3. Retroactive seniority and health benefits

4. Punitive damages

5. Blacklisting; cease & desist order

X. Settlements

A. Review of settlement agreement

1. Standard for review

2. Requirement of written agreement

3. ALJ's review of the terms of settlement agreement

B. Renunciation of settlement agreement/reopening

C. Dismissal with prejudice

D. Confidentiality provisions

E. Assent of Assistant Secretary

F. Enforcement

A. Voluntary dismissals

1. Generally

2. Obligation of ALJ to determine whether pro se complainant understands effects of dismissal

3. Withdrawal by complainant acting alone

4. Stipulated dismissal

B. Dismissals for cause

1. Abandonment

2. Failure to comply with ALJ's lawful order

3. Misconduct

4. Employer's failure to participate

C. Other dismissals

1. Involuntary bankruptcy

2. Special circumstances; section 1978.115

3. Dismissal of ARB review where neither party files an appellate brief

XII. Res judicata/Collateral estoppel

XIII. Relationship with other remedies

A. Preemption

B. Requirement of exhaustion of administrative remedies

C. Deferral to arbritation proceedings
[See also STAA Digest III D]

D. Mootness doctrine