I find, however, that genuine issues of material fact remain.
ORDER
Therefore, it is hereby ORDERED that Employer’s Motion for Summary Judgment is DENIED in Part and GRANTED in Part.
RICHARD A. MORGAN
Administrative Law Judge
[ENDNOTES]
1 "An employee alleging discharge, discipline, or discrimination in violation of subsection (a) of this section, or another person at the employee’s request, may file a complaint with the Secretary of Labor not later than 180 days after the alleged violation occurred." 49 U.S.C. § 31105(b)(1).
2 For example, "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." 29 C.F.R. § 1978.102(d).
3 In Reddy v. Medquist, Inc., No. 04-123 (September 30, 2005), the Administrative Review Board ("Board") elaborated on the meaning of "genuine issue of material fact." It stated, "[a] ‘material fact’ is one whose existence affects the outcome of the case. A ‘genuine issue’ exists when the nonmoving party produces sufficient evidence of a material fact so that a fact-finder is required to resolve the parties’ differing versions at trial. Sufficient evidence is any probative evidence." Reddy at 4.
4 The Board noted that, because it reviews issues of law de novo, its procedure for reviewing a grant of summary decision is the same as the Administrative Law Judge would follow in ruling on the motion.
5 For example, Complainant alleges that Respondent failed to provide him with work.
6 See also 29 C.F.R. § 1978.102(d)(3); Hillis v. Knochel Brothers, Inc., ARB Nos. 03-136, 04-081, and 04-148, ALJ No. 2002-STA-50 (ARB Oct. 19, 2004); Hoff v. Mid-States Express, Inc., ARB No. 03-051, ALJ No. 2002-STA-6 (ARB May 27, 2004); Nixon v. Jupiter Chemical, Inc., 89-STA-3 (Sec’y Oct. 10, 1990).
7 See 29 C.F.R. § 1978.102(d)(3); National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
8 Respondent has not set forth specific grounds on which summary decision should be granted with respect to 49 U.S.C. § 31105(a)(1)(A)(i), (B)(i). Nevertheless, Complainant has addressed these provisions in his Brief in Opposition to Summary Decision. I find that in regard to these provisions, genuine issues of material fact exist.
9 A constructive discharge occurs when "working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign." Shoup v. Kloepfer Concrete Co., 95-STA-33 (Sec’y Jan. 11, 1996) citing Hollis v. Double DD Truck Lines, Inc., 84-STA-13 (Sec’y March 18, 1995).