Onysko v. State of Utah Dept. of Environmental Quality, ARB No 2019-0042, ALJ Nos. 2017-SDW-00002, 2017-SDW-00003 (ARB Dec. 16, 2020) (per curiam)
SUMMARY DECISION; DECLARATION SUBMITTED IN OPPOSITION TO MOTION FOR SUMMARY DECISION IS INSUFFICIENT WHERE IT MERELY CONTAINED GENERAL ALLEGATIONS AND NONSPECIFIC DENIALS
In Onysko v. State of Utah Dept. of Environmental Quality, ARB No 2019-0042, ALJ Nos. 2017-SDW-00002, 2017-SDW-00003 (ARB Dec. 16, 2020) (per curiam), the ARB affirmed and adopted the ALJ’s Decision and Order Granting Respondent’s Motion for Summary Decision. The ARB found the ALJ’s decision to be a well-reasoned ruling based on undisputed facts and the applicable law. The ALJ had found that all but six of the adverse actions alleged by Complainant were untimely and not actionable, and Respondent had made a showing on summary decision establishing its affirmative defense on the remaining six actions. The ALJ found that Complainant had not raised a genuine issue of material fact as to the affirmative defense. The ARB specifically noted that Complainant’s Declaration submitted in opposition to the motion for summary decision had been inadequate, and that Complainant’s argument on appeal that the ALJ had impermissibly stricken his Declaration was not accurate:
While Complainant submitted a Declaration and other materials in opposition to the motion for summary decision, the Declaration contained “nothing more than general allegations and nonspecific denials which d[id] not directly address the facts Respondent contend[ed] [we]re undisputed.”[4] Nor did any of Complainant’s submissions raise a genuine issue of material fact. For these reasons, the ALJ properly concluded that Respondent established that there is no genuine issue as to any material fact and is entitled to summary decision as a matter of law. None of Complainant’s arguments on appeal persuade us otherwise.
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[4] D. & O. at 8. On appeal, Complainant has argued that the ALJ impermissibly struck his Declaration. However, the ALJ did not strike the Declaration, but instead thoroughly reviewed it. While it would have been error to have stricken the Declaration for the reason that it was not signed under oath or under penalty of perjury, the ALJ did not take this action. See Hukman v. U.S. Airways, Inc., ARB No. 2018-0048, ALJ No. 2015-AIR-00003, slip op. at 7-8 (ARB Jan. 16, 2020) (in which the ARB held that the ALJ erred in refusing “to credit or even consider several of Complainant’s submissions because they were not ‘affidavits’ or ‘sworn statements’” on summary decision). Rather, the ALJ considered the Declaration, but perceived it to be lacking because it contained only nonspecific allegations and denials, rather than raising any genuine issue of material fact, as it was required to do in order to survive Respondent’s summary decision motion.
Slip op. at 3 and at 3, n.4.
[Editor’s note: In the ALJ’s decision, he stated that he was “disregarding” Plaintiff’s Declaration for two reasons: (1) for failing to be signed under oath or under penalty of perjury as the ALJ had required in a prior Order, and (2) “more importantly” because it contained only general allegations and non-specific denials. ALJ D. & O. at 10-11.]
Griffith v. S.H.I. Logistics, ALJ No. 2019-0026, ALJ No. 2017-STA-00046 (ARB Dec. 15, 2020) (Decision and Order)
CONTRIBUTORY FACTOR CAUSATION; ARB FINDS THAT SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING THAT COMPLAINANT WAS NOT REHIRED DUE TO CONDITIONS HE PUT ON REEMPLOYMENT RATHER THAN FOR PAST STAA PROTECTED ACTIVITY
In Griffith v. S.H.I. Logistics, ALJ No. 2019-0026, ALJ No. 2017-STA-00046 (ARB Dec. 15, 2020), Complainant drove trucks for Respondent over two periods of employment, voluntarily resigning after each period of employment. Respondent’s president and owner advised Complainant that he would not rehire him after a second resignation. During the first period of employment, Complainant had objected to showing his commercial driver’s license when delivering product to one Respondent’s customers, for fear of potential identity theft. During the second period of employment, a shipment of plants and the trailer were damaged when Complainant drove out of an underground tunnel. Complainant later asked to be rehired. After Complainant was not rehired, he filed a STAA complaint alleging retaliation for protected activity. The ARB affirmed the ALJ’s finding that Complainant did not establish by a preponderance of the evidence that Complainant’s report of the plant hauling incident was a contributing factor in Respondent’s refusal to rehire.
Complainant argued on appeal that Respondent made the decision not to rehire at the time of the second resignation, within weeks of the plant hauling incident, and not when he sought reemployment 8 months later. The ARB, however, noted that Respondent’s president testified that he made a decision not to rehire Complainant at the time of reemployment because Complainant had placed conditions on his reemployment of not being required to show his commercial driver’s license and not having to haul plants which Complainant considered dangerous. The ARB noted that the ALJ correctly determined that Complainant had not submitted evidence of disparate treatment merely by showing that Respondent hired an ex-employee on a third occasion.
The ARB found that the record supported the ALJ’s finding that Respondent did not rehire Complainant solely for non-retaliatory reasons. Although Complainant denied sending a letter to Respondent’s president placing conditions on his rehire, the ARB noted that the ALJ credited the testimony of Respondents’ witnesses over Complainant, and found that Complainant sent a hostile letter conditioning his reemployment on not having to haul plants or to show his commercial driver’s license to Respondent’s customers. The ARB noted the ALJ’s careful review of the testimony and the record, and found that substantial evidence supported the ALJ’s findings that a letter and faxes sent by Complainant to Respondent would discourage Respondent from a rehire.
Ziegenhorn v. Ruan Logistics Corp., ARB No. 2019-0076, ALJ No. 2017-STA-00077 (ARB Dec. 15, 2020) (per curiam) (Decision and Order)
CONTRIBUTORY FACTOR CAUSATION; EVIDENTIARY WEIGHT OF CIRCUMSTANTIAL EVIDENCE OF CLOSE TEMPORAL PROXIMITY BETWEEN PROTECTED ACTIVITY AND DISCHARGE UNDERCUT BY SUBSEQUENT INTERVENING EVENT OF INFORMATION THAT CONFIRMED RESPONDENT’S SUSPICION THAT COMPLAINANT WAS SOURCE OF ANONYMOUS DEFAMATORY LETTERS TO RESPONDENT AND ITS CLIENTS
AFFIRMATIVE DEFENSE; CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT DISCHARGED COMPLAINANT ON THE HONESTLY HELD BELIEF THAT COMPLAINANT AUTHORED ANONYMOUS DEFAMATORY LETTERS TO RESPONDENT AND ITS CLIENTS
In Ziegenhorn v. Ruan Logistics Corp., ARB No. 2019-0076, ALJ No. 2017-STA-00077 (ARB Dec. 15, 2020) (per curiam), Complainant (Ziegenhorn) filed a FMCSA complaint on July 15, 2016 about an hours-of-service incident which he alleged was due to poor dispatching practices by Respondent (Ruan). On September 23, 2016, Respondent received an anonymous letter -- the most recent in a series of letters to Respondent and its clients alleging a variety of serious misconduct by Respondent. This letter, unlike the earlier letters, included a handwritten envelope. Respondent investigated the charges in the letters but found that they were meritless. A Senior Executive of Respondent (Hanson) who had been separately investing the letters since 2015, and who suspected that Complainant was the source of the letters, obtained samples of Complainant’s handwriting, and concluded after comparing the handwriting that Complainant had in fact drafted the letters. Respondent terminated Complainant’s employment on October 7, 2016. Complainant filed a STAA whistleblower complaint. After a hearing, the ALJ determined that Complainant failed to prove contributory factor causation by a preponderance of the evidence. The ALJ found that the close temporal proximity between the FMCSA complaint and the discharge was undercut by the subsequent intervening event of the handwriting assessment. The ALJ found that the Executive credibly testified how he had independently determined that Complainant authored the letters, which was the sole reason for Complainant’s discharge. The ALJ also determined that Respondent established by clear and convincing evidence that it would have discharged Complainant on the belief that he was the source of the defamatory letters, even in the absence of protected activity.
The ARB found that the ALJ’s decision was supported by substantial evidence. The ARB stated:
We agree with the ALJ’s finding that Ziegenhorn did not carry his burden to prove that his protected activity was a contributing factor in the termination of his employment. We further agree with the ALJ that Ruan would have taken the adverse action even if Ziegenhorn had not engaged in protected activity because the defamatory letters were a very serious concern for the company, and Hanson had an “honestly held belief” that Ziegenhorn authored the letters.
Slip op. at 5 (footnote omitted).
Administrator, Wage and Hour Div., USDOL v. Doctor's Help, Inc., ARB No. 2018-0038, ALJ No. 2017-LCA-00024 (ARB Dec. 9, 2020) (Decision and Order)
FAILURE OF RESPONDENT TO PAY REQUIRED WAGES TO COMPLAINANT IN NON-PRODUCTIVE STATUS PRIOR TO BONA FIDE TERMINATION; ARB SUMMARILY AFFIRMS DECISION AND ORDER AWARDING BACK WAGES
In Administrator, Wage and Hour Div., USDOL v. Doctor’s Help, Inc., ARB No. 2018-0038, ALJ No. 2017-LCA-00024 (ARB Dec. 9, 2020), the Complainant filed a complaint with the Wage and Hour Division (“WHD”), alleging that the Respondent failed to pay the required wage rate, the cost of legal representation, and the H-1B visa application fee. Slip op. at 3. Following an investigation, the WHD determined that the Respondent failed to pay the required wages, and ordered reimbursement of the fees, from which the Respondent requested a hearing before an ALJ. Id. Following the hearing, the ALJ awarded back wages. Id.
The ARB summarily affirmed, agreeing that the Respondent did not effectuate a bona fide termination until the Complainant voluntarily returned to Brazil and the Respondent subsequently terminated her and informed the Department of Homeland Security’s United States Citizenship and Immigration Services of the termination. Id. at 4–5. Although the Respondent contended that the Complainant “never worked” for the Respondent, the ARB also agreed that the Complainant was entitled to back wages because the record demonstrated that she worked “at least some hours” and, importantly, she was in non-productive status under the INA’s “no benching provision” while in the United States. Id. at 5; see also 8 U.S.C. § 1182(n)(2)(C)(vii)(I) (requiring H-1B employers to pay required wages, even during non-productive status, due to a decision, such as a lack of assigned work, by the employer); 20 C.F.R. § 655.731(c)(7)(i) (same). The ARB noted that the Respondent stipulated to repayment of the fees at the hearing, but emphasized that H-1B employees are prohibited from paying the H-1B visa application fee and H-1B employers must pay attorney fees. Slip op. at 5 n.26; see also 20 C.F.R. § 655.731(c)(9)(ii), 655.731(c)(10)(ii).
ARB’S STANDARD OF REVIEW IN LCA CASE; DIFFERING VIEWS ON WHETHER DE NOVO REVIEW IS LIMITED TO CONCLUSIONS OF LAW, OR FOR BOTH FINDINGS OF FACT AND CONCLUSIONS OF LAW
In Administrator, Wage and Hour Div., USDOL v. Doctor’s Help, Inc., ARB No. 2018-0038, ALJ No. 2017-LCA-00024 (ARB Dec. 9, 2020), a two-member panel of the ARB summarily affirmed the ALJ’s Decision and Order awarding back wages to an H-1b worker based on the LCA “no benching” provision. The two members wrote separate concurrences to address the ARB’s standard of review in LCA cases. Judge Haynes stated that the ARB should adopt a de novo review standard for ALJ conclusions of law, and a substantial evidence review standard for findings of fact where the applicable statutes or regulations do not provide a standard of review. Judge Burrell stated that the ARB’s standard of review of ALJ findings of fact and legal conclusions should be de novo, although on the record that was before the ALJ. Slip op. at 6–11.
Mawhinney v. Transport Workers Union, Local 591, ARB No. 2019-0018, ALJ No. 2012-AIR-00014 (ARB Dec. 9, 2020) (Decision and Order)
The ARB adopted the ALJ’s decision granting summary decision in favor of Respondent.
OFCCP v. Oracle America, Inc., ARB No. 2020-0072, ALJ No. 2017-OFC-00006 (ARB Dec. 9, 2020) (Order of Case Closing)
The ARB closed the case after the OFCCP informed the ARB that it will not be filing exceptions to the ALJ’s September 22, 2020 Recommended Decision and Order.
Manoharan v. HCL America, Inc., ARB No. 2019-0067, ALJ No. 2018-LCA-00029 (ARB Dec. 7, 2020) (Order of Remand)
FAILURE OF THE WAGE AND DIVISION TO INFORM COMPLAINANT WHETHER IT FOUND REASONABLE CAUSE TO INVESTIGATE RETALIATION COUNT OF LCA COMPLAINT, OR TO ISSUE A DETERMINATION ON THAT COUNT; ARB FINDS THAT REGULATIONS MANDATE SUCH ACTIONS BY THE WHD, AND THAT A REMAND WAS REQUIRED FOR THE WHD TO ISSUE THE REQUIRED DETERMINATION
In Manoharan v. HCL America, Inc., ARB No. 2019-0067, ALJ No. 2018-LCA-00029 (ARB Dec. 7, 2020), Complainant, an H-1B worker, filed a complaint with the Wage and Hour Division (WHD), alleging that Respondent failed to pay him the required wage rate and retaliated against him for protected conduct. The WHD investigated, and issued a determination letter finding several violations of the INA by Respondent. The WHD, however, did not address the retaliation complaint. Complainant requested an ALJ hearing. The ALJ found that that he did not have jurisdiction to consider the retaliation complaint because the WHD had neither conducted an investigation nor issued a determination on that complaint. The ARB reversed and remanded “because the WHD failed to follow its basic regulatory requirements,” which require the WHD division to make a reasonable cause determination on whether to investigate, and to notify the complainant of its determination and to permit the complainant to submit a new complaint with additional necessary information. If the WHD Administrator determines that an investigation is warranted, the WHD is required to conduct that investigation and issue a determination. The ARB found these requirements to be mandatory and not subject to the agency’s discretion. The ARB found that the WHD clearly failed to adhere to the regulations in this matter. The ARB did not decline jurisdiction, as had the ALJ, stating:
If the ALJ’s reasoning here were to stand, Complainant would be left with no process to vindicate his claims of retaliation and be caught in a “Catch-22,” because the failure of the agency to respond with any determination at all precludes any avenue of relief—a situation particularly egregious here where the Complainant has no private right of action in court. Phrased another way, the agency could insulate itself from review by its complete failure to take any action whatsoever. We shall not allow Complainant to “be penalized” and foreclosed from pursuing any avenue for possible relief by the agency’s failure to follow its own rules.
Slip op. at 6 (footnotes omitted). The ARB noted:
On remand the Administrator may indeed determine that an investigation is not warranted, which would end the enforcement process because that decision is not reviewable. Gupta v. Headstrong, Inc., ARB Nos. 2011-0065, -0008, ALJ No. 2011-LCA-00038, slip op. at 8 (ARB June 29, 2012); 20 C.F.R. § 655.806(a)(2). If the Administrator does find reasonable cause to investigate, the WHD would then be required to conduct an investigation and issue a determination as to whether retaliation occurred. § 655.806(a)(2) & (3). If the Administrator determines no retaliation occurred after the investigation, Complainant could then have that decision reviewed by an ALJ. § 655.820(b)(1).
Id. at n. 28.
[Editor’s note: The ARB indicated that, although it had earlier consolidated Complainant’s appeals of the ALJ’s determinations on the retaliation and back wages issues, it was vacating the order of consolidation, and would separately consider the back wages issue in ARB Case No. 2020-0007.]