LaRonda Phox v. The Savoy at 21C (agency decision, April 26, 2022)

Plain-English summary

An ALJ denied LaRonda Phox's Food Safety Modernization Act complaint and later denied her motions to stay or reconsider that ruling. The Board then dismissed Phox's petition for review as untimely. Phox requested reconsideration of the Board's dismissal. The Board found no previously unavailable difference in fact or law, new material fact, change in law, or overlooked material fact and denied the motion.

Decision snapshot

• Cited authorities: 21 U.S.C. § 399d; 29 C.F.R. § 1987.112(a)
• Outcome: Reconsideration denied; dismissal of the untimely petition for review remains in effect.
• Key point: Reconsideration requires a recognized new or overlooked matter, not simply another request to revisit an untimely appeal.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

   In the Matter of:

   LARONDA PHOX,                                ARB CASE NO.      2021-0057

                COMPLAINANT,                    ALJ CASE NO.      2019-FDA-00014

         v.                                     DATE: April 26, 2022

   THE SAVOY AT 21C,

                RESPONDENT.


   Appearances:

   For the Complainant:
         LaRonda Phox; pro se; Kansas City, Missouri

   For the Respondent:
         Emily N. K. Monroe, Esq. and Sara E. Welch, Esq.; STINSON LLP;
         Kansas City, Missouri


   Before: James D. McGinley, Chief Administrative Appeals Judge; Thomas
   H. Burrell, Administrative Appeals Judge


              ORDER DENYING MOTION FOR RECONSIDERATION

         PER CURIAM. This case arises under the Food Safety Modernization Act1
   (FSMA), and its implementing regulations at 29 C.F.R. § 1987. LaRonda Phox
   (Complainant) filed a complaint, alleging that her former employer, The Savoy at
   21c (Respondent), had violated the FSMA’s employee protection provisions. On May
   25, 2021, an Administrative Law Judge (ALJ) issued a Decision and Order Denying
   Complaint (D. & O.), finding that Complainant did not successfully prove that
   Respondent had violated the FSMA. On June 9, 2021, Complainant filed a “Motion

   1     21 U.S.C. § 399d (2016).

                                         2

to Stay and Motion to Reconsider or Motion for Extension of Time.” On July 14, 2021, the ALJ denied the motions.

  On July 28, 2021, Complainant filed a Petition for Review of the ALJ’s D. &

O. with the Administrative Review Board (Board). On January 6, 2022, the Board dismissed the Petition for Review because it was untimely.2 On January 24, 2022, Complainant filed a Motion for Reconsideration (Motion) with the Board seeking reconsideration of its decision.

   The Board is authorized to reconsider a decision upon the filing of a motion

for reconsideration within a reasonable time of the date on which the decision was issued. We will reconsider our decisions under limited circumstances, which include: (1) material differences in fact or law from those presented to a court of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the court’s decision, (iii) a change in the law after the court’s decision, or (iv) failure to consider material facts presented to the court before its decision.3

  Upon review of Complainant’s motion, we determine that Complainant has

not presented any arguments that fall within the four circumstances under which we will reconsider our decisions. Therefore, we DENY her Motion.

   SO ORDERED.4

2 Phox v. The Savoy at 21c, ARB No. 2021-0057, ALJ No. 2019-FDA-00014 (ARB Jan. 6, 2022). 3 Jinna v. MPRSoft, Inc., ARB No. 2019-0070, ALJ No. 2018-LCA-00039, slip op. at 2 (ARB May 26, 2020). 4 Complainant may petition for review of the Board’s Decision. See Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board (Secretarial review)), 85 Fed. Reg. 13186, 13188 at (6)(b)(1) (Mar. 6, 2020); see also 29 C.F.R. § 1987.112 (a) (Judicial review). In any appeal of this Decision and Order that may be filed with the Court of Appeals, we note that the appropriately named party is the Secretary, Department of Labor (not the Administrative Review Board).