Lempa v. Hawthorne Global Aviation and Heartland Aviation (agency decision, July 23, 2019)

Plain-English summary

Joseph Lempa alleged that Heartland Aviation fired him for raising air-transportation safety concerns. The ALJ found that his employment ended on May 31, 2016, but he did not file with OSHA until September 12, more than 100 days later. The Board held that substantial evidence supported those dates and affirmed dismissal under AIR21's 90-day filing period. It refused to accept evidence that was not part of the hearing record. Although it called the appeal groundless, it denied the employer's attorney-fee request because the evidence did not show frivolousness or bad faith.

Decision snapshot

• Cited authorities: 49 U.S.C. § 42121(b); 29 C.F.R. §§ 18.54(c) and 1979.110(a)
• Outcome: Untimeliness dismissal affirmed; new evidence excluded; employer attorney-fee request denied.
• Key point: Filing more than 100 days after discharge missed the then-applicable 90-day AIR21 complaint deadline.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:


  JOSEPH LEMPA,                                       ARB CASE NO. 2018-0046

                  COMPLAINANT,                        ALJ CASE NO. 2017-AIR-00008

         v.                                           DATE: July 23, 2019

  HAWTHORNE GLOBAL AVIATION
  and HEARTLAND AVIATION,

                  RESPONDENTS.


  Appearances:

  For the Complainant:
        Soma G. Priddle, Esq.; Soma G. Priddle, Esq. LLC; Norwalk, Wisconsin

  For the Respondent:
        Geoffrey A. Lacy, Esq.; Strang, Patteson, Renning, Lewis & Lacy, S.C.;
        Green Bay, Wisconsin


                            FINAL DECISION AND ORDER

        PER CURIAM. This matter arises under the employee protection provision of
  the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century. 1 In
  a complaint filed with the Department of Labor’s Occupational Safety and Health


  1      49 U.S.C. § 42121 (2000) (AIR 21); 29 C.F.R. Part 1979 (2018).





  Administration (OSHA), Joseph Lempa alleged that his employment with
  Heartland Aviation (Heartland) was terminated in retaliation for raising air
  transportation safety concerns. 2 OSHA concluded that the claim was not timely
  filed and dismissed the complaint. Complainant requested a hearing before an
  administrative law judge (ALJ), which was held on July 11 and 12, 2017.
  Subsequently, the Administrative Law Judge issued a Decision and Order Denying
  Relief in which he found that the claim was filed after the 90-day filing period set
  forth in 49 U.S.C. § 42121(b), and thus dismissed the claim. We affirm.

                        JURISDICTION AND STANDARD OF REVIEW

        The Secretary of Labor has delegated to the ARB authority to hear appeals
  and issue final agency decisions under AIR 21 and its implementing regulations. 3
  The ARB reviews questions of law presented on appeal de novo, but is bound by the
  ALJ’s factual findings as long as they are supported by substantial evidence. 4

                                         DISCUSSION

         The ALJ found that Complainant was terminated on May 31, 2016, Decision
  and Order at 50, and did not file a complaint with OSHA until September 12, 2016,
  id. at 51, over 100 days after adverse action had been taken against him. The ALJ’s
  findings are supported by substantial evidence as described in the decision below
  and are affirmed. As such, the ALJ's decision to dismiss the complaint as untimely
  was in accordance with applicable law, and we adopt the ALJ's well-reasoned
  Decision and Order Denying Relief as our own and attach a copy hereto. Thus, the
  ALJ’s decision is now the final decision of the Secretary of Labor.



  2      While the ALJ noted that Hawthorne Global Aviation (HGA) also contested liability
  as a responsible employer, he did not resolve this issue given his finding that the claim was
  not timely filed. Given the ultimate disposition of this case, we hold that any error in this
  regard was harmless.
  3      Secretary’s Order No. 01-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13,072 (April 3, 2019); 29
  C.F.R. § 1979.110(a).
  4      29 C.F.R. § 1982.110 (2018); Palmer v. Canadian Nat’l Ry. / Ill. Cent. R.R. Co., ARB
  No. 16-035, ALJ No. 2014-FRS-154, slip op. at 14-15 (ARB Sept. 30, 2016, reissued Jan. 4,
  2017).



        We reject Complainant’s request to submit evidence to the Board that was
  not part of the administrative record at the hearing below. 5 In addition, we reject
  Respondent’s request for attorney’s fees in the amount of $1,000 to be paid by
  Complainant; while we hold that the appeal is groundless, the evidence does not
  support a conclusion that this appeal was frivolous or brought in bad faith. 6

         SO ORDERED.




  5
        29 C.F.R. § 18.54(c) (2018); see Welch v. Cardinal Bankshares Corp., ARB No. 06-
  062, ALJ No. 2008-SOX-015, slip op. at 5-6 (ARB June 9, 2006) (denying stay).

  6      29 C.F.R. § 1979.110(a); Reamer v. Ford Motor Co., ARB No. 09-053, ALJ No. 2009-
  SOX-003, slip op. at 7 (ARB July 21, 2011) (denying Respondent’s motion for attorney’s
  fees).