Decisions of the DOL Administrative Review Board – January & February 2017
The Administrative Review Board issues final agency decisions for the Secretary of Labor in cases arising under a wide range of worker protection laws, primarily involving environmental, transportation, and securities whistleblower protection. Read below for decisions of the Administrative Review Board from January to February 2017 as reported in the USDOL/OALJ Reporter:
Decisions of the Administrative Review Board
February 2017
- Vinayagam v. Cronous Solutions, Inc., ARB No. 15-045, ALJ No. 2013-LCA-29 (ARB Feb. 14, 2017)
Final Decision and Order- PDF(slip opinion)
Summary:
Uncontested evidence that H-1b worker voluntarily stayed in the u.s.—even after the respondent informed her that she had been terminated from employment and after uscis was informed of the termination—was sufficient to grant summary decision as to respondent’s non-liability for post-termination wages, even though the respondent had not paid for the cost of transportation home or even offered to do so.
- Swint v. NetJets Aviation, Inc., ARB No. 17-012, ALJ Nos. 2014-AIR-21, 2016-AIR-11 (ARB Feb. 8, 2017)
Order Dismissing Appeal- PDF(slip opinion)
Summary:
ALJ decision on motion for summary decision where some claims are dismissed but others set for hearing; arb considers such an appeal to be interlocutory, and will generally not entertain appeals of ALJ decisions that are not final dispositions of the matter.
- Leaks v. Arctic Glacier, ARB No. 15-079, ALJ No. 2014-STA-80 (ARB Feb. 7, 2017)
Final Decision and Order- PDF(slip opinion)
Summary:
The ARB affirmed the ALJ denial of STAA complaint where substantial evidence of record supported the ALJ’s findings of fact and credibility determinations, and the ALJ’s decisions was otherwise in accordance with applicable law. The ALJ had found that the Complainant s failed to prove that he engaged in protected activity under § 31105(a)(1)(B)(i) because he failed to prove that he refused to drive the assigned tractor because its operation violated a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security. The ALJ had also found that the Complainant failed to prove that he engaged in protected activity within the meaning of § 31105(a)(1)(B)(ii) because he failed to establish that he refused to drive because of a reasonable apprehension of serious injury to himself or the public due to any hazardous safety or security condition of the assigned tractor. The ALJ also found that the Complainant did not prove that a reasonable person would have concluded under the circumstances that there was a defect in the truck likely to cause a serious injury.
Decisions of the Administrative Review Board
January 2017
- Gupta v. Headstrong, Inc., ARB Nos. 15-032, -033, ALJ No. 2014-LCA-8 (ARB Jan. 26, 2017)
Final Decision and Order
Summary:
Earlier settlement of LCA claim which included a release of all claims against the respondent extinguished any new claim related to the H-1b employment that was the subject of the settlement; collateral attacks on settlement as ineffective, void, fraudulent or rescinded are beyond the arb’s authority to adjudicate
- White v. Action Expediting, Inc., ARB No. 16-024, ALJ No. 2011-STA-11 (ARB Jan. 26, 2017)
Final Decision and Order
Summary:
In White v. Action Expediting, Inc., ARB No. 16-024, ALJ No. 2011-STA-11 (ARB Jan. 26, 2017), the ARB summarily affirmed the ALJ’s Decision and Order, finding that substantial evidence of record supported the ALJ’s factual findings that Complainant failed to establish that his STAA-protected activity was a contributing factor in his employment termination, the ALJ having thoroughly examined all of the Complainant’s evidence and having explained why he did not credit the Complainant’s version of the events.
- Beaumont v. Sam’s East, Inc., ARB No. 15-025, ALJ No. 2014-SWD-1 (ARB Jan. 12, 2017)
Final Decision and Order
Summary:
[Nuclear & Environmental Digest XI]Contributing factor causation; evidence that complainant engaged in tampering of respondent’s surveillance camera [Nuclear & Environmental Digest XI D 3 d]clear and convincing evidence that adverse action would have been taken in absence of protected activity; evidence that complainant engaged in tampering of respondent’s surveillance camera; causation; intervening event does not necessarily break causal connection- 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 - McNiece v. Dominion Nuclear Connecticut, Inc., ARB No. 15-083, ALJ No. 2015-ERA-5 (ARB Jan. 12, 2017)
Order Denying Motion for Reconsideration- PDF(USDOL/OALJ Reporter)
Summary:
The ARB denied the Complainant’s motion for reconsideration where it failed to argue any legally sufficient grounds to support such a motion.
- Pattenaude v. Tri-Am Transport, LLC, ARB No. 15-007, ALJ No. 2013-STA-37 (ARB Jan. 12, 2017)
Decision and Order of Remand - 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
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
- Palmer v. Trump Model Management, ARB No. 16-094, ALJ No. 2016-LCA-22 (ARB Jan. 11, 2017)
Order Granting Voluntary Dismissal
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.
- 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:
ARB issues final version of en banc decision providing the state of the law on the two-step burden of proof in case types that employ the AIR21 standard (i.e., ACA, AIR21, CFP, CPS, ERA, FDA, FRSA, MAP21, NTS, PSI, SPA, SOX, AND STAA)
- ARB plurality rejects Fordham/powerslimitations on what evidence ALJ may consider on contributing factor element
- Lead opinion suggests that confusion can be lessened if steps are viewed as follows: step one is the complainant’s burden to prove by a preponderance of the evidence that protected activity played some role in the adverse personnel action. Step two is the respondent’s “same-action defense”
