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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

SHERVIS SMITH,

COMPLAINANT,

ARB CASE NO.

2022-0041

ALJ CASE NO.

2021-STA-00028

DATE:

May 4, 2023

AKAL EXPRESS, INC. and

DALSHER SINGH,

RESPONDENTS.

ERRATUM

The Administrative Review Board (ARB or Board) issued its Decision and

Order Affirming in Part, and Vacating and Remanding in Part (D. & O.) in this case

on April 21, 2023. The D. & O. contains an erroneous date of “June 1, 2021” on page

5, second full paragraph, second sentence. Accordingly, the Board issues this Errata

to correct the erroneous date on page 5 by correcting it to “July 6, 2021.” The

sentence should be replaced as follows:

Respondents did not comply with Smith’s discovery requests, which

resulted in Smith filing a Motion for Entry of Default Judgment on

July 6, 2021, a Supplemental Motion on July 29, 2021, and a Second

Supplemental Motion on September 14, 2021.

The Board reissues the D. & O. as corrected. In all other respects, the D. & O.

remains the same.

FOR THE ADMINISTRATIVE REVIEW BOARD

PURSUANT TO DELEGATED AUTHORITY:

AUBREY GORDON

GENERAL COUNSEL

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

SHERVIS SMITH,

COMPLAINANT,

AKAL EXPRESS, INC. and

DALSHER SINGH,

ARB CASE NO.

2022-0041

ALJ CASE NO.

2021-STA-00028

DATE:

April 21, 2023

REISSUE:

May 4, 2023

RESPONDENTS.

Appearances:

For the Complainant:

Shervis Smith; pro se; Kansas City, Missouri

For the Respondents:

Samantha J. Monsees, Esq.; Fisher & Phillips, LLP; Kansas City,

Missouri; and Patrick W. Dennison, Esq.; Fisher & Phillips, LLP;

Pittsburgh, Pennsylvania

Before PUST, BURRELL, and MILTENBERG Administrative Appeals

Judges

DECISION AND ORDER AFFIRMING IN PART, AND VACATING AND

REMANDING IN PART

PUST, Administrative Appeals Judge:

This case arises under the Surface Transportation Assistance Act of 1982

(STAA) and its implementing regulations.1 Shervis Smith (Smith) filed a complaint

against Akal Express, Inc., (Akal Express) and Dalsher Singh (Singh) (collectively,

49 U.S.C. § 31105(a); 29 C.F.R. Part 1978 (2022).

Respondents) alleging that they violated the employee protection provisions of the

STAA when they constructively terminated his employment.2 On November 16,

2021, the Administrative Law Judge (ALJ) issued a Default Decision and Order

Against Akal Express, Inc. and Dalsher Singh (Default D. & O.).3 On May 5, 2022,

the same ALJ issued an Order Awarding Damages, Fees, and Costs (Order

Awarding Damages).4 Respondents appealed to the Administrative Review Board

(ARB or Board). The Board affirms the ALJ’s Default D. & O. and affirms in part,

and vacates in part, the ALJ’s Order Awarding Damages.

BACKGROUND

Smith worked as a driver for Akal Express between May 2019 and September

2020.5 On November 12, 2020, Smith filed a complaint with the Occupational Safety

and Health Administration (OSHA) alleging that Respondents violated the STAA.6

On February 22, 2021, OSHA dismissed the complaint because Smith requested

that OSHA terminate its investigation to allow him to request a hearing with the

Office of Administrative Law Judges (OALJ).7 On April 5, 2021, an ALJ issued and

served on the parties a Notice of Assignment and Preliminary Order (Preliminary

Order) setting relevant proceeding dates and advising the parties of the

consequences of non-appearance.8 After Respondents failed to respond to an Order

to Show Cause, the ALJ issued the Default D. & O. on November 16, 2021.9

The Default D. & O. stated:

Here, Respondents have not complied with the Preliminary

Order by failing to provide initial disclosures pursuant to

29 C.F.R. § 18.50, failing to respond to Claimant’s

interrogatories and requests for production served

pursuant 29 C.F.R. §§ 18.60 and 18.61, and failing to confer

with Complainant or otherwise participate in the filing of

Smith v. Akal Express, Inc., ALJ No. 2021-STA-00028, slip op. at 1 (ALJ Nov. 16,

2021) (Default D. & O.).

Id.

Smith v. Akal Express, Inc., ALJ No. 2021-STA-00028 (ALJ May 5, 2022) (Order

Awarding Damages).

Proof of Damages and Application for Award of Attorney’s Fees and Costs, Exhibit

(Ex.) 1.

Default D. & O. at 1.

Id.

Id. at 2-3.

Id. at 4.

a joint prehearing statement pursuant to 29 C.F.R. § 18.80.

Although given an opportunity to do so, Respondents have

not provided any explanation for their failure to comply.

Respondents’ noncompliance has resulted in the denial of

Complainant’s right to discovery and adjudication of his

claims. Accordingly, pursuant to 29 C.F.R. § 18.57(b)(vi), a

default decision and order against Respondents is an

appropriate sanction.[10]

The Default D. & O. instructed Smith to file a proof of damages within thirty days

and required Respondents to respond to Smith’s filing within thirty days.11 Smith

filed a Proof of Damages and Application for Award of Attorney’s Fees and Costs

(Proof of Damages) on December 14, 2021.12 Respondents did not respond to Smith’s

Proof of Damages.13 Smith filed a Supplement to Complainant’s Proof of Damages

and Application for Award of Attorney’s Fees and Costs (Supplement to Proof of

Damages) on April 19, 2022.14

On May 5, 2022, the ALJ issued the Order Awarding Damages. Respondents

appealed to the Board on May 19, 2022.15 The parties filed several pleadings before

the Board, and the Board issued an Order Regarding Pending Motions on January

12, 2023.16

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the Board the authority to review

ALJ decisions under the STAA.17 The ARB reviews questions of law presented on

Id. at 5.

Id. at 6.

Order Awarding Damages at 3.

Id.

Id. n.1.

Respondents’ Petition for Review; Smith v. Akal Express, Inc., ARB No. 2022-0041,

ALJ No. 2021-STA-00028, slip op. at 1 (ARB May 25, 2022) (Notice of Appeal and Order

Establishing Briefing Schedule).

Smith v. Akal Express, Inc., ARB No. 2022-0041, ALJ No. 2021-STA-00028 (ARB

Jan. 12, 2023) (Order Regarding Pending Motions) (denying Respondents’ Motion to

Supplement, granting Complainant’s Motion to Strike, and granting Complainant’s

Counsel’s Motion to Withdraw).

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020).

appeal de novo but is bound by the ALJ’s factual determinations as long as they are

supported by substantial evidence.18 “The Board reviews the imposition of discovery

sanctions under an abuse of discretion standard.”19

DISCUSSION

1. Rules of Practice and Procedure Before OALJ

The Department of Labor’s Rules of Practice and Procedure for hearings

before the Office of Administrative Law Judges (OALJ’s Rules of Practice and

Procedure) are found at 29 C.F.R. Part 18.20 The OALJ’s Rules of Practice and

Procedure, which apply to STAA proceedings, provide that “they should be

construed and administered to secure the just, speedy, and inexpensive

determination of every proceeding.”21 The OALJ’s Rules of Practice and Procedure

permit an ALJ to issue sanctions against parties for failing to comply with a judge’s

discovery order.22 In such a case, an ALJ may “[r]ender[] a default decision and

order against the disobedient party.”23

2. The ALJ Did Not Abuse His Discretion When He Defaulted Respondents

Respondents argue that the ALJ’s issuance of a default judgment was

improper because Respondents’ failure to respond to the ALJ’s orders was not

willful, in bad faith, or Respondents’ fault, “but properly attributable to

misunderstanding and mistake, compounded by circumstances beyond the control of

[Respondents] caused by [COVID-19].”24 In essence, Respondents argue not that

they did not know about the ALJ’s orders but instead that they should be allowed to

avoid the issued default because they did not understand that they were required to

29 C.F.R. § 1978.110(b); Stokes v. Albertson’s, LLC, ARB No. 2022-0007, ALJ Nos.

2020-STA-00080, -00082, slip op. at 5 (ARB May 20, 2022) (citation omitted).

Deepali Company, LLC, ARB No. 2021-0028, ALJ No. 2017-DBA-00022, slip op. at 3

n.5 (ARB Sept. 20, 2021) (citing Saporito v. Fla. Power & Light Co., ARB Nos. 2009-0009,

-0010, ALJ No. 2008-ERA-00014, slip op. at 2 (ARB Feb. 28, 2011); see Powers v. Pinnacle

Airlines, Inc., ARB No. 2005-0022, ALJ No. 2004-AIR-00032, slip op. at 10 (ARB Jan. 31,

2006); Mao v. Nasser, ARB No. 2006-0121, ALJ No. 2005-LCA-00036, slip op. at 12 (ARB

Nov. 26, 2008)).

29 C.F.R. Part 18.

29 C.F.R. § 18.10(a).

Id. § 18.57(b)(1).

Id. § 18.57(b)(1)(vi).

Revised Brief of Respondents/Petitioners (Resp. Br.) at 12.

participate in the proceedings and Akal’s owner’s travel out of the country,

compounded by COVID-19 restrictions, prevented Respondents from participating.25

On April 5, 2021, the ALJ issued and served, at the email and postal address

provided by Respondents, a Preliminary Order in which Respondents were ordered

to file a response within fourteen days of receipt of the “Pleading Complaint.”26

Respondents received the Preliminary Order, as evidenced by the fact that, on May

20, 2021, they untimely filed their response in the form of a letter directed to OALJ

denying all wrongdoing.27 Following their untimely response, Respondents did not

comply with the discovery provisions in the Preliminary Order. The Preliminary

Order directed the parties to participate in discovery immediately, complete

discovery within 140 days, and file a Joint Prehearing Statement twenty-one days

after the conclusion of discovery.28

Smith served Respondents with interrogatories and requests for production

on June 1, 2021.29 Respondents did not comply with Smith’s discovery requests,

which resulted in Smith filing a Motion for Entry of Default Judgment on July 6,

2021, a Supplemental Motion on July 29, 2021, and a Second Supplemental Motion

on September 14, 2021.30 Smith also filed a Prehearing Statement on September 14,

2021, stating that he was unable to submit a joint prehearing statement in

compliance with the Preliminary Order because Respondents had made no effort to

participate in the proceedings since May 20, 2021.31

Within the terms of the Preliminary Order, the ALJ warned the parties about

the potential consequences of noncompliance. Specifically, the ALJ advised the

parties that failure to comply with the Preliminary Order could result in the

imposition of sanctions including, but not limited to, entry of a default judgment.32

The record reflects that the Preliminary Order was served on Singh, Akal

Express’ general manager and a named respondent in this case, five days before

Id.; see also Order Regarding Pending Motions at 5-6

Default D. & O. at 2.

Id. at 3. Respondents’ filing was sent to OALJ electronically from

“akalexpress@gmail.com.”

Id. at 2.

Id. at 3.

Id. at 3-4.

Id. at 4.

Id. at 2.

Rajwinder Kaur (Kaur), Akal Express’ owner, traveled to India.33 Respondents

previously acknowledged that, during her travels, Kaur was intermittently in

contact with Singh regarding the OALJ proceeding.34 Thus, Respondents should

have been aware of the OALJ proceedings before Kaur left the country.

Respondents chose not to obtain legal counsel and, instead, relied upon Singh’s

mistaken belief that OSHA’s earlier dismissal had concluded the matter such that

the ALJ’s orders could be safely ignored.35 As previously addressed in the Order

Regarding Pending Motions, “ignorance of the law is neither a sufficient basis for

granting equitable tolling nor by itself an independent ground for establishing

entitlement.”36 Accordingly, the Board finds that Respondents were on notice as to

the potential sanctions for failure to comply with the Preliminary Order, including

the entry of a default judgment.

On October 7, 2021, the ALJ ordered Respondents to show cause within ten

days as to why a default order should not be issued against them.37 Again,

Respondents did not respond.38 Consequently, the ALJ issued the Default D. & O.

Respondents argue now before the Board that the ALJ erred by issuing the default

judgment nearly two months before the conclusion of the twenty-week period in

which a hearing would be scheduled in this matter.39

The Preliminary Order was served on Respondents via regular mail and e-mail on

April 5, 2021. Order Regarding Pending Motions at 6. Kaur departed the United States on

April 10, 2021. Id.

See id.

Respondents claim that they believed that “the matter had ended and required no

future response from Akal.” Resp. Br. 14. Yet on May 20, 2021, Singh filed an untimely

response to Smith’s complaint with the OALJ. Default D. & O. at 3. Filing a response with

the OALJ contradicts Respondents’ argument that they believed the matter to be over

following the OSHA dismissal. If Respondents thought the matter was truly over, there

would have been no reason for Singh to have prepared and filed such a response.

Order Regarding Pending Motions at 5 (quoting Lugg v. Lear Corp., ARB No. 20220008, ALJ No. 2021-SOX-00022, slip op. at 7 (ARB May 19, 2022); Tardy v. Delta Air Lines,

ARB No. 2016-0077, ALJ No. 2015-AIR-00026, slip op. at 5 (ARB Oct. 5, 2017)).

Default D. & O. at 4. The Preliminary Order was served on Respondents via regular

mail and e-mail. The Preliminary Order served via regular mail was addressed to Akal

Express, Inc. and sent to 12337 S. Summertree Circle, Olathe, KS 66062. The Preliminary

Order served via e-mail was addressed to Singh and sent to dalsher@akalexpress.com. Id.

at 3.

Id. at 4.

Resp. Br. at 15-16; within the joint prehearing statement, the parties were required

to include a listing of any period during the subsequent twenty-weeks in which they were

“unavailable for hearing due to previously scheduled judicial proceedings or other good

cause shown.” Default D. & O. at 2.

The Board generally does not consider arguments raised for the first time on

appeal.40 Even if considered, Respondents’ argument fails to recognize that

discovery was required to be completed by August 23, 2021, and a Joint Prehearing

Statement was to be filed by September 13, 2021. Therefore, even if the hearing was

intended to be scheduled sometime in December 2021, Respondents did not comply

with the ALJ’s discovery instructions, file a pre-hearing statement, or respond to

the ALJ’s Show Cause Order—all of which were independently sufficient grounds

for the issuance of sanctions.

The Board has consistently supported an ALJ’s authority to enforce

prehearing orders and issue sanctions to deter parties from disregarding these

orders.41 Discovery sanctions must be available to an ALJ when parties flagrantly

fail to comply. “To hold otherwise would render the discovery process meaningless

and vitiate an ALJ’s duty to conclude cases fairly and expeditiously.”42

As set forth above, the ALJ gave Respondents adequate opportunity to

comply with his orders. Respondents chose to ignore the ALJ’s orders, and they did

so at their peril and at the risk of having a default decision entered against them.

When the ALJ issued the Default D. & O., the ALJ acted in a manner consistent

with the regulations. Accordingly, the ALJ did not abuse his discretion when he

defaulted Respondents.

3. The ALJ Did Not Err by Issuing the Order Awarding Damages but

Erred in Considering Smith’s Supplement to Proof of Damages

The STAA provides that, when a violation of the employee protection

provisions occurs, the ALJ shall issue an order that will require, where appropriate:

[A]ffirmative action to abate the violation; reinstatement

of the complainant to his or her former position with the

Budri v. Firstfleet, Inc., ARB No. 2018-0055, ALJ No. 2018-STA-00033, slip op. at 3

n.6 (Mar. 25, 2019) (citing Seehusen v. Mayo Clinic, ARB No. 2012-0047, ALJ No. 2011STA-00018, slip op. at 4 (ARB Sept. 11, 2013) (citation omitted)).

See Adm’r, Wage & Hour Div., U.S. Dep’t of Lab. v. Moonwalks for Fun, Inc., ARB

No. 2013-0027, ALJ No. 2012-CLA-00008, slip op. at 5 (ARB May 19, 2014); Sisfontes v.

Kuchana, ARB Nos. 2007-0107, -0114, ALJ No. 2007-LCA-0014, slip op. at 7-9 (ARB Aug.

31, 2009); but see Matthews v. LaBarge, Inc., ARB No. 2008-0038, ALJ No. 2007-SOX00056, slip op. at 3 (ARB Nov. 26, 2008) (stating that “dismissing a complaint for failure to

comply with an ALJ’s order is a ‘very severe penalty to be assessed in only the most

extreme cases.’”).

Sisfontes, ARB Nos. 2007-0107, -0114, slip op. at 8 (citing Supervan, Inc., ARB No.

2000-0008, ALJ No. 1994-SCA-00047, slip op. at 6).

same compensation, terms, conditions, and privileges of

the complainant’s employment; payment of compensatory

damages (backpay with interest and compensation for any

special damages sustained as a result of the retaliation,

including any litigation costs, expert witness fees, and

reasonable attorney fees which the complainant may have

incurred); and payment of punitive damages up to

$250,000.[43]

In the Default D. & O., the ALJ instructed Smith to file a proof of damages

within thirty days and required Respondents to respond within thirty days of

Smith’s filing.44 Smith timely filed the Proof of Damages; Respondents did not

respond.45 Smith subsequently filed a Supplement to Proof of Damages on April 19,

2022.46 The ALJ issued an Order Awarding Damages on May 5, 2022, ordering

Respondents to pay Smith: (1) back pay in the amount of $49,750.00, pre-judgment

interest in the amount of $2,063.00, and post-judgment interest on the foregoing

sums; (2) compensatory damages in the amount of $50,000.00; (3) punitive damages

in the amount of $25,000.00; and (4) attorney’s fees in the amount of $26,720.00 and

costs in the amount of $252.32.47

Respondents aver that the ALJ erred by issuing the Order Awarding

Damages.48 Respondents also contend that Smith’s counsel’s billing rate is

29 C.F.R. § 1978.109(d)(1).

Default D. & O. at 6.

Order Awarding Damages at 3. In support of his Proof of Damages, Smith submitted

the following exhibits: Ex. 1 “Declaration of Shervis Ramar Smith;” Ex. 1A “New

Employment pay history from April 5, 2021 to November 19, 2021;” Ex. 2 “Declaration of

Garrett M. Hodes;” Ex. 2A “Professional Biography;” Ex. 2B “Attorney Time Detail;” Ex. 2C

“Costs, Expenses and Advance Detail;” Ex. 2D “2021 Billing Rates for Kansas City,

Missouri;” Ex. 2E “Freedom of Information Act (‘FOIA’) Request Control Number: FMCS2022-00420;” Ex. 3 “Federal Motor Carrier Safety Administration (‘FMCSA’) records in

response to FOIA request;” Ex. 4 “FMCSA enforcement actions against Respondents (20162022);” Ex. 5 “Respondent’s Safety Measurement System Report from FMCSA.”

Id. n.1. In support of his Supplement to Proof of Damages, Smith submitted the

following exhibits: Ex. 6 “Respondent’s 2021 for Profit Corporation Annual Report filed with

the Kansas Secretary of State on April 6, 2022;” Ex. 7 “Petition for Damages, Oumar v.

Akal Express, Inc., et al., No. 21CV03178 (Kan. 10th Jud. Dist. Ct. July 14, 2021);” Ex. 8

“Journal Entry, Oumar v. Akal Express, Inc., et al., No. 21CV03178 (Kan. 10th Jud. Dist.

Ct. Dec. 16, 2021);” and Ex. 9 “Civil Case History, Oumar v. Akal Express, Inc., et al., No.

21CV03178 (Kan. 10th Jud. Dist. Ct.).”

Id. at 10-11.

Resp. Br. at 16-26.

excessive49 and “block-billed and contains numerous hours that are excessive,

redundant, or otherwise unnecessary,”50 and that Smith is not entitled to back

pay,51 compensatory damages,52 or punitive damages.53

As previously noted, the Board generally does not consider arguments raised

for the first time on appeal.54 Even though the Board will not consider Respondents’

new arguments on appeal, the ALJ’s factual determinations must still be supported

by substantial evidence.55 Substantial evidence means “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion. ‘[T]he threshold

for such evidentiary sufficiency is not high.’”56 “The substantial evidence standard

‘limits the reviewing court from deciding the facts anew, making credibility

determinations, or re-weighing the evidence.’”57 The ALJ’s decision must be upheld

if substantial evidence supports the ALJ’s conclusion “even if it is ‘possible that a

reasonable mind could have come to a different finding.’”58

A. Attorney’s Fees and Costs

A prevailing STAA complainant is entitled to be reimbursed for litigation

costs, including attorney’s fees.59 The starting point is the “lodestar” method of

multiplying a reasonable number of hours by a reasonable hourly rate.60 The party

seeking attorney’s fees “must submit ‘adequate evidence concerning a reasonable

Id. at 17-19.

Id. at 19-22.

Id. at 22-24.

Id. at 24-25.

Id. at 25-26.

Budri, ARB No. 2018-0055, slip op. at 3 n.6 (citing Seehusen, ARB No. 2012-0047,

ALJ No. 2011-STA-00018, slip op. at 4 (citation omitted)).

29 C.F.R. § 1978.110(b).

Neely v. The Boeing Co., ARB No. 2020-0071, ALJ No. 2018-AIR-00019, slip op. at 9

(ARB May 19, 2022) (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotations

and citations omitted)).

Id. (quoting Stone & Webster Const., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127, 1133

(11th Cir. 2012) (internal quotation omitted) (citation omitted)).

Id. (quoting Clem v. Comput. Scis. Corp., ARB No. 2020-0025, ALJ Nos. 2015-ERA00003, -00004, slip op. at 17 (ARB Mar. 10, 2021)).

49 U.S.C. § 31105(b)(3)(B).

Simpson v. Equity Transp. Co., ARB No. 2019-0010, ALJ No. 2017-STA-00076, slip

op. at 16 (ARB May 13, 2020) (citing Jackson v. Butler & Co., ARB Nos. 2003-0116, -0144,

ALJ No. 2003-STA-00026, slip op. at 10-11 (ARB Aug. 31, 2004)).

hourly fee for the type of work the attorney performed and consistent [with] practice

in the local geographic area,’ as well as records identifying the date, time, and

duration necessary to accomplish each specific activity, and all claimed costs.”61

The ALJ awarded Smith’s attorney $26,720.00 in fees and $252.32 in costs in

connection with litigation of the case before the OALJ.62 The ALJ relied upon

Smith’s Proof of Damages, which contained a declaration from Smith’s attorney, a

detailed narrative of his professional qualifications, median and mean rates for

attorneys in Kansas City, an itemized billing statement listing time spent

performing various tasks, and an itemized billing statement listing costs for online

research, postage, and court databases.63 Accordingly, substantial evidence supports

the ALJ’s award for attorney’s fees and costs and the Board affirms that award.

B. Back Pay

A prevailing complainant is entitled to an award of back pay, which includes

pre-judgment and post-judgment interest on the award.64 Back pay is awarded from

the date of the retaliatory discharge. Back pay liability ends when the employer

makes a bona fide, unconditional offer of reinstatement, or the employee gains

comparable employment.65 A STAA complainant has a duty to exercise reasonable

diligence to mitigate back pay damages.66

The ALJ calculated that Smith was entitled to back pay in the amount of

$49,750.00, pre-judgment interest in the amount of $2,063.00, and post-judgment

interest.67 The ALJ relied upon Smith’s Proof of Damages, which contained a

declaration from Smith and a post-Akal employment pay history, which established

that Smith had an average weekly wage of $1,750 and began new employment on

Id. (quoting Gutierrez v. Regents, Univ. of Cal., ARB No. 1999-0116, ALJ No. 1998ERA-00019, slip op. at 11 (ARB Nov. 13, 2002) (internal quotations and citations omitted)).

Order Awarding Damages at 10.

Id.; Proof of Damages, Exs. 2, 2A, 2B, 2D.

49 U.S.C. § 31105(b)(3)(A)(iii); 29 C.F.R. § 1978.109(d)(1).

See Simpson, ARB No. 2019-0010, ALJ No. 2017-STA-00076, slip op. at 15 (holding

employer’s back pay obligation ended when the former employee found comparable

employment).

Rudolph v. Nat’l R.R. Passenger Corp., ARB Nos. 2014-0053, -0056, ALJ No. 2009FRS-00015, slip op. at 13 (ARB Apr. 5, 2016) (citing Abdur-Rahman v. DeKalb Cnty., ARB

Nos. 2012-0064, -0067, ALJ No. 2006-WPC-00002, slip op. at 4 (ARB Oct. 9, 2014); Johnson

v. Roadway Express, Inc., ARB No. 1999-0111, ALJ No. 1999-STA-00005, slip op. at 14

(ARB Mar. 29, 2000)).

Order Awarding Damages at 5.

April 5, 2021.68 Thus, substantial evidence supports the ALJ’s award for back pay

and the Board affirms that award.

C. Additional Compensatory Damages

A successful complainant is also entitled to compensatory damages.69

Compensatory damages are designed to compensate complainants not only for

direct pecuniary loss but also for harms such as loss of reputation, personal

humiliation, mental anguish, and emotional distress.70 The ALJ awarded Smith

$50,000.00 in compensatory damages, finding that Smith suffered from emotional

distress, anxiety, humiliation, anger, and reputational loss due to Respondents’

actions.71 The ALJ relied upon Smith’s Proof of Damages, which contained a

declaration from Smith.72 While Smith did not support his claim with supporting

medical or professional evidence, no other evidence was offered to the ALJ. The

Board has affirmed reasonable compensatory awards based solely on the employee’s

testimony in the past.73 Therefore, substantial evidence supports the ALJ’s award

for compensatory damages and the Board affirms that award.

D. Punitive Damages

Relief may also include punitive damages in an amount not to exceed

$250,000.00.74 “Punitive damages are warranted where there has been ‘reckless or

callous disregard for the plaintiff’s rights, as well as intentional violations of federal

law.’”75

Id.; Proof of Damages, Exs. 1, 1A.

49 U.S.C. § 31105(b)(3)(A)(iii).

Smith v. Lake City Enterprises, Inc., ARB Nos. 2008-0091, 2009-0033, ALJ No. 2006STA-00032, slip op. at 11 (ARB Sept. 24, 2010) (reissued Sept. 28, 2010).

Order Awarding Damages at 5-8. “To recover compensatory damages for mental

suffering or emotional anguish, a complainant must show by a preponderance of the

evidence that the unfavorable personnel action caused the harm.” Simpson, ARB No. 20190010, slip op. at 15 (quoting Evans v. Miami Valley Hosp., ARB Nos. 2007-0118, -0121, ALJ

No. 2006-AIR-00022, slip op. at 20 (ARB June 30, 2009)).

Order Awarding Damages at 6-8; Proof of Damages, Ex. 1.

See Simpson, ARB No. 2019-0010, slip op. at 15; Barnum v. J.D.C. Logistics, Inc.,

ARB No. 2008-0030, ALJ No. 2008-STA-00006 slip op. at 7 (ARB Feb. 27, 2009) (citing

Hobson v. Combined Transp., Inc., ARB Nos. 2006-0016, -0053, ALJ No. 2005-STA-00035,

slip op. at 8, 9 n.36. (ARB Jan. 31, 2008)).

49 U.S.C. § 31105(b)(3)(C).

Simpson v. Equity Transp. Co., ARB No. 2019-0010, ALJ No. 2017-STA-00076, slip

op. at 15-16 (ARB May 13, 2020) (quoting Smith v. Wade, 461 U.S. 30, 51 (1983)).

The ALJ found that punitive damages were warranted in order to deter

similar future actions and to serve as punishment for actions taken by

Respondents.76 The ALJ determined that $25,000.00 in punitive damages was

appropriate based on Smith’s Proof of Damages and Supplement to Proof of

Damages, as supported by a FOIA request to the FMCSA,77 FMCSA records and

safety reports,78 FMCSA enforcement actions against Respondents,79 a petition for

damages involving Respondents in a Kansas District Court Case titled Oumar v.

Akal Express Inc.,80 a journal entry from Oumar v. Akal Express Inc.,81 and a civil

case history of Oumar v. Akal Express Inc., plus other awards in similar cases.82

Although Smith may be entitled to punitive damages, the Board finds that

the ALJ erred in considering Smith’s Supplement to Proof of Damages in making

this determination. Smith was directed to file a proof of damages within thirty days

of the Default D. & O.83 Smith timely filed his Proof of Damages on December 14,

2021.84 However, Smith untimely filed a Supplement to Proof of Damages more

than three months after the Default D. & O.’s filing deadlines.85 The OALJ’s Rules

of Practice and Procedure require a party to file a motion to reopen the record

promptly after additional evidence is discovered.86 Additionally, if the record is

reopened the other party must be provided an opportunity to offer responsive

evidence.87 Smith did not file a motion to reopen the record or argue that the new

Order Awarding Damages at 9.

Id.; Proof of Damages, Ex. 2E.

Order Awarding Damages at 9; Proof of Damages, Exs. 3, 5.

Order Awarding Damages at 9, Proof of Damages, Ex. 4.

Order Awarding Damages at 9; Supplement to Proof of Damages, Ex. 7.

Order Awarding Damages at 9; Supplement to Proof of Damages, Ex. 8.

Order Awarding Damages at 9; Supplement to Proof of Damages, Ex. 9.

Default D. & O. at 6.

Order Awarding Damages at 3.

Respondents were given thirty days to respond to Smith’s Proof of Damages.

Following these thirty days, the record should have closed absent good cause. Default D. &

O. at 6.

29 C.F.R. § 18.90(b)(1).

Id. § 18.90(b)(2). The record reflects that Respondents were also deprived of an

opportunity to respond to Smith’s Supplement to Proof of Damages. The Board has held

that “[i]t is unfair to consider an argument to which [a party] has been given no opportunity

to respond.” Palisades Urban Renewal Enterprises, LLP, ARB No. 2007-0124, ALJ No.

2006-DBA-00001, slip op. at 8 n.44 (ARB July 30, 2009) (quoting United States v. Ford

Motor Co., 463 F.3d 1267, 1277 (Fed. Cir. 2006)). See Erickson v. U.S. EPA, ARB No. 19990095, ALJ No. 1999-CAA-00002, slip op. at 6 (ARB July 31, 2001) (holding that “the other

exhibits he sought to introduce for consideration were not discoverable with

reasonable diligence before the Default D. & O.’s filing deadlines. Thus, the ALJ

should not have accepted the Supplement to Proof of Damages after the Default D.

& O.’s filing deadlines and should not have considered it when assessing punitive

damages.

Therefore, the Board vacates the ALJ’s punitive damages award. The Board

remands this case to the ALJ to reassess the punitive damages award by

considering only arguments and evidence from Smith’s initial Proof of Damages.88

CONCLUSION

For the foregoing reasons, the Board AFFIRMS the ALJ’s Default D. & O.,

and AFFRIMS in part, and VACATES and REMANDS in part, the ALJ’s Order

Awarding Damages for further proceedings consistent with this decision.

SO ORDERED.

__________________________________________

TAMMY L. PUST

Administrative Appeals Judge

__________________________________________

THOMAS H. BURRELL

Administrative Appeals Judge

__________________________________________

NED I. MILTENBERG

Administrative Appeals Judge

party must be given adequate opportunity to respond in some manner” to arguments raised

for the first time in reply briefs). See also Amazon.com, Inc. v. ZitoVault, LLC, 754 F. App’x

965, 972 (Fed. Cir. 2018); Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1278 (10th Cir.

1994). Although the Board recognizes that it is unlikely that Respondents would have

responded to the Supplement to Proof of Damages if they were provided the opportunity

given that they did not participate in the OALJ proceedings since May 20, 2021, a

hypothesized outcome cannot substitute for Respondents’ actual opportunity to defend

themselves.

The Board acknowledges the possibility that the ALJ may, on remand, arrive at the

same conclusion and award Smith punitive damages in the amount of $25,000.00.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.