Print This Page
E-mail This PageDecisions of the Administrative Review Board
January 2017
- Beaumont v. Sam's East, Inc., ARB No. 15-025, ALJ No. 2014-SWD-1 (ARB Jan. 12, 2017)
Final Decision and Order- PDF (slip opinion)
Summary:XXXX
- Magers v. Seneca Re-Ad-Industries, Inc., ARB Nos. 16-038, -054, ALJ No. 2016-FLS-3 (ARB Jan. 12, 2017)
Decision and Order Reversing, In Part, and Remanding- PDF (slip opinion)
Summary:XXXX
- Pattenaude v. Tri-Am Transport, LLC, ARB No. 15-007, ALJ No. 2013-STA-37 (ARB Jan. 12, 2017)
Decision and Order of Remand- PDF (slip opinion)
Summary:XXXX
- Ramirez v. Norfolk Southern Railway Co., ARB No. 17-003, ALJ No. 2016-FRS-22 (ARB Jan. 12, 2017)
Final Decision and Order Dismissing Untimely Appeal- PDF (slip opinion)
Summary:TIMELINESS OF PETITION FOR ARB REVIEW; RESPONSE TO ARB’S ORDER TO SHOW CAUSE WHY AN UNTIMELY APPEAL SHOULD NOT BE DISMISSED IS INADEQUATE WHERE IT MERELY ALLEGED THAT THE COMPLAINANT DID NOT TIMELY RECEIVE THE ALJ’S DECISION AND FAILED TO ADDRESS WHEN THE COMPLAINANT’S COUNSEL RECEIVED THE DECISION
In Ramirez v. Norfolk Southern Railway Co., ARB No. 17-003, ALJ No. 2016-FRS-22 (ARB Jan. 12, 2017), the Complainant electronically filed his appeal of the ALJ’s Order Granting Respondent’s Motion to Enforce and Approve the Settlement Agreement more 14 days after the date the ALJ issued the decision. The ARB issued an order to show cause why the petition for review should not be dismissed as untimely. The Complainant sought equitable tolling on the ground that the Complainant did not receive the ALJ’s decision until after the 14 days had passed. The ARB found that, even accepting that the Complainant had not received his copy of the ALJ’s decision until after 14 day period had already elapsed, the Complainant’s response to the order to show cause was inadequate because it failed to address when the Complainant’s attorney received his copy of the ALJ’s decision. The ARB stated: “Ramirez bears the burden of establishing his entitlement to equitable tolling. Whether his counsel’s affirmation was simply perfunctory or carefully crafted with an intent to obfuscate, it is insufficient to carry his burden. Accordingly, because Ramirez failed to file a timely petition for review or establish his entitlement to equitable tolling, his appeal is DISMISSED.” Slip op. at 4 (emphasis as in original).
- Palmer v. Trump Model Management, ARB No. 16-094, ALJ No. 2016-LCA-22 (ARB Jan. 11, 2017)
Order Granting Voluntary Dismissal- PDF (slip opinion)
Summary:The ARB dismissed the Complainant’s petition for review of the ALJ’s Decision and Order Denying Request for Hearing Due to Lack of Jurisdiction based on the Complainant’s filing of a voluntary notice of dismissal with prejudice. The case arose under the H-1B provisions.
- Powers v. Union Pacific Railroad Co., ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Jan. 6, 2017)
Final Decision and Order
Summary:CONTRIBUTING FACTOR CAUSATION; ALJ MAY PROPERLY CONSIDER RESPONDENT’S EVIDENCE ON ITS NON-RETALIATORY REASON FOR ITS EMPLOYMENT ACTION; ALJ PROPERLY CONSIDERED EVIDENCE THAT ONLY REASON FOR FIRING WAS ITS REASONABLE BELIEF THAT THE COMPLAINANT HAD BEEN DISHONEST
In Powers v. Union Pacific Railroad Co., ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Jan. 6, 2017), the ARB, applying Palmer v. Canadian Nat’l Ry., ARB No. 16-035, ALJ No. 2014-FRS-154, slip op. at 16, 37 (ARB Sept. 30, 2016; reissued Jan. 4. 2017) (en banc), affirmed the ALJ’s determination that the Complainant failed to prove that his protected activity was a contributing factor in the adverse action he suffered as supported by substantial evidence. The ARB stated: “In making that determination, the ALJ properly considered Union Pacific’s evidence supporting its claims about why it fired Powers. In particular, the ALJ properly considered the evidence supporting Union Pacific’s nonretaliatory reason for its action, that the only reason it fired Powers was its officials’ reasonable belief that Powers had been dishonest.” Slip op. at 18-20. One member of the Board dissented, stating that “the strength of Union Pacific's evidence of Powers’ alleged dishonesty—or proof that Powers was dishonest—is relevant to a determination of causation but proof that Union Pacific believed him to be dishonest is not.” Slip op. at 22. The dissenting member also stated that the ALJ seemed to have improperly required that the Complainant prove pretext in order to prevail.
- Palmer v. Canadian National Railway, ARB No. 16-035, ALJ No. 2014-FRS-154 (ARB Sept. 30, 2016) (reissued with full dissent Jan. 4, 2017)
Erratum- PDF (USDOL/OALJ Reporter)
Summary:Erratum to ARB’s Jan. 4, 2017 reissued Decision and Order showing additional attorneys of record.
- Palmer v. Canadian National Railway, ARB No. 16-035, ALJ No. 2014-FRS-154 (ARB Sept. 30, 2016) (reissued with full dissent Jan. 4, 2017)
Decision and Order of Remand- PDF (USDOL/OALJ Reporter)
Summary:XXXXX