U.S. Department of Labor

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,

v.

ALJ CASE NO. 2017-AIR-00008

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).

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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.

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.

2

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).

3

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).

4

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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.

29 C.F.R. § 18.54(c) (2018); see Welch v. Cardinal Bankshares Corp., ARB No. 06062, ALJ No. 2008-SOX-015, slip op. at 5-6 (ARB June 9, 2006) (denying stay).

5

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

fees).

6

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