U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

NAVEEN VUDHAMARI,

PROSECUTING PARTY,

v.

ARB CASE NO.

2019-0061

ALJ CASE NO.

2018-LCA-00022

DATE: July 30, 2020

ADVENT GLOBAL SOLUTIONS,

RESPONDENT.

Appearances:

For the Prosecuting Party:

Naveen Vudhamari; pro se; Himayathanagar, India

For the Respondent:

Kavitha Akula, Esq.; Akula & Associates, P.C.; Dallas, Texas

Before: Thomas H. Burrell, Acting Chief Administrative Appeals Judge;

James A. Haynes and Heather C. Leslie, Administrative Appeals Judges

ORDER OF REMAND

PER CURIAM. This case arises under the Immigration and Nationality Act

(INA), 8 U.S.C. §§ 1101-1537 (2014), and its implementing regulations at 20 C.F.R.

Part 655, Subparts H and I (2019). On May 17, 2019, a Department of Labor

Administrative Law Judge (ALJ) issued a Decision and Order Granting Summary

Decision (D. & O.), denying in part and granting in part a motion submitted by

Respondent Advent Global Systems to dismiss a complaint filed by Prosecuting

Party Naveen Vudhamari. For the following reasons, we reverse the ALJ’s rulings

and remand the case for further proceedings consistent with our decision.

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BACKGROUND

Advent is a company that provides information technology services. In

August 2015 it filed a Labor Condition Application (LCA) seeking to hire an H-1B

nonimmigrant worker to work as a systems analyst between August 5, 2015 and

August 5, 2018. On or about August 10, 2015, Vudhamari began working for Advent

in the Systems Analyst position identified in the LCA. After he began working at

Advent, Vudhamari submitted a WH-4 (Nonimmigrant Worker Information Form)

to the Department of Labor’s Wage and Hour Division. In this document he alleged

that Advent committed several violations, including failing to pay him the legal

wage pursuant to his H-1B status. Petition for Review, Exhibit (PX) 15 at 6.

Wage and Hour conducted an investigation and on June 19, 2018, the

Administrator concluded that Advent committed LCA violations related to

Vudhamari’s employment and ordered the company to pay Vudhamari $2,463.97 in

back wages. On June 27, 2018, Vudhamari appealed the Administrator’s

determinations and requested a hearing before the Office of Administrative Law

Judges (OALJ). On December 18, 2018, the ALJ ordered Vudhamari to “file a

Formal Complaint asserting the specific grounds upon which his claim is based, the

specific violations he alleges that Respondent committed, and the specific nature of

the relief he seeks in this matter.” On January 3, 2019, Vudhamari submitted a

Formal Complaint (Complaint) to the ALJ alleging various violations committed by

Advent, the Department of Labor, and the U.S. Citizenship and Immigration

Services.

On March 15, 2019, Advent filed a Motion to Dismiss (Motion) the Complaint

on the grounds that Vudhamari failed to state a claim upon which relief could be

granted. The ALJ ordered Vudhamari to respond to the Motion and informed him

that failure to respond would result in a grant of the Motion. On April 5, 2019,

Vudhamari filed a reply to the Motion with supporting exhibits and attachments. D.

& O. at 4.

The ALJ reviewed the Motion and concluded that Advent intended to file a

combined motion to dismiss and an alternative motion for summary decision

pursuant to the rules governing proceedings before OALJ. Id. at 4-5. On May 17,

2019, the ALJ issued a Decision and Order Granting Summary Decision. The ALJ

denied the portion of the Motion seeking to dismiss the Complaint for failure to

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state a claim upon which relief could be granted and granted the portion of the

Motion seeking summary decision. Vudhamari appealed the ALJ’s ruling on the

Motion to the Board.

JURISDICTION AND STANDARD OF REVIEW

The ARB has jurisdiction to review the ALJ’s decision pursuant to 20 C.F.R. §

655.845. See also 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. 13,186 (Mar. 6, 2020). The

ARB reviews de novo an ALJ’s orders on motions to dismiss and for summary

decision. Johnson v. The Wellpoint Cos., Inc., ARB No. 2011-0035, ALJ No. 2010SOX-00028 (ARB Feb. 25, 2013).

In considering a motion to dismiss for failure to state a claim, we accept the

non-movant’s factual allegations as true and draw all reasonable inferences in his

favor. Tyndall v. U.S. EPA, ARB No. 1996-0195, ALJ Nos. 1993-CAA-00006, 1995CAA-00005, slip op. at 2 (ARB June 14, 1996). In contrast, summary decision is

appropriate if the pleadings, affidavits, and other evidence show that there is no

genuine issue as to any material fact, and that the moving party is entitled to

prevail as a matter of law. 29 C.F.R. § 18.72(a); Franchini v. Argonne Nat’l Lab.,

ARB No. 2013-0081, ALJ No. 2009-ERA-00014, slip op. at 10 (ARB Sept. 28, 2015).

In reviewing such a motion, the evidence before the ALJ is viewed in the light most

favorable to the non-moving party, and he may not weigh the evidence or determine

the truth of the matter.

DISCUSSION

We agree with the ALJ’s conclusion that Vudhamari stated a claim upon

which relief could be granted by alleging that Advent underpaid his wages. D. & O.

at 5 (“Pursuant to the applicable regulations, an employer is obligated to pay its H1B employees the required wage rate for the entire period of authorized

employment. 20 C.F.R. § 655.731(a) ... Consequently, because the Prosecuting Party

has alleged Respondent did not pay him wages or underpaid his wages, the

Prosecuting Party has stated a claim upon which relief could be granted.”). And

Advent asserts in its Motion that it “has been and is willing to pay the back wages

owed to Mr. Vudhamari which was determined by the Department of Labor after a

thorough investigation.” Motion at 2.

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But the Complaint incorporates claims beyond the back pay award, and

Advent submitted exhibits in support of its assertion that it was entitled to

dismissal of the Complaint. Vudhamari also submitted additional documents in

support of his response to the Motion. Because the parties submitted evidence

outside the pleadings, it was proper for the ALJ to interpret the Motion as a request

for summary decision. Hukman v. U.S. Airways, Inc., ARB No. 2015-0054, ALJ No.

2015-AIR-00003, slip op at 6-7 (ARB July 13, 2017).

The ALJ informed Vudhamari of the consequences for failing to reply to the

Motion when it was presented as a motion to dismiss. See March 19, 2019 Order

Establishing Deadline for Prosecuting Party to File Reply to Respondent’s Motion to

Dismiss. But the ALJ did not inform Vudhamari that he was converting the Motion

to a motion for summary decision. Vudhamari is appearing pro se, and the ALJ

should have provided him with notice of the requirements for opposing a motion for

summary decision, in a form sufficiently understandable to apprise him of what was

required, along with the text of the rule governing summary decisions. See, e.g.,

Zavaleta v. Alaska Airlines, Inc., ARB No. 2015-0080, ALJ No. 2015-AIR-00016, slip

op. at 11-12 (ARB May 8, 2017); see also Timms v. Frank, 953 F.2d 281, 285 (7th Cir

1992) (“a short and plain statement in ordinary English” is appropriate because “the

need to answer a summary judgment motion with counter-affidavits is contrary to

lay intuition.”).

Accordingly, we direct the ALJ to provide Vudhamari with a notice containing:

(1) the text of the rule governing summary decisions before ALJs (i.e., 29 C.F.R. §

18.72), and (2) a short and plain statement that factual assertions in Advent’s

submissions will be taken as true unless he contradicts Advent with counteraffidavits or other documentary evidence. Although we express no opinion on the

merits of Vudhamari’s claims, we REVERSE the ALJ’s Decision and Order Granting

Summary Decision and REMAND the case for further proceedings consistent with

this opinion.

SO ORDERED.