# U.S. Department of Labor

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URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A7fa3d5ca50cde948

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

U.S. Department of Labor

Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

In the Matter of:
ADMINISTRATOR, WAGE AND
HOUR DIVISION, U.S.
DEPARTMENT OF LABOR,

ARB CASE NO.

2019-0014

ALJ CASE NOS. 2015-FLS-00010
2015-FLS-00011

PROSECUTING PARTY,
DATE: April 15, 2022
v.
FIVE M’s, LLC, d/b/a L&W AUTO
SALVAGE (L&W AUTO PARTS) and
JOHN MORGAVAN,
and
FIVE M’s LLC, d/b/a VALPARAISO
CAR CARE TRANSMISSION and
JOHN MORGAVAN,
RESPONDENTS.
Appearances:
For the Prosecuting Party, Administrator, Wage and Hour Division:
Kate S. O’Scannlain, Esq.; Jennifer S. Brand, Esq.; Paul L. Frieden,
Esq.; Sara A. Conrath, Esq.; U.S. Department of Labor, Office of the
Solicitor; Washington, District of Columbia
For the Respondents:
Gordon A. Etzler, Esq.; Gordon A. Etzler & Associates, LLP;
Valparaiso, Indiana
Before: James D. McGinley, Chief Administrative Appeals Judge; Thomas
H. Burrell and Randel K. Johnson, Administrative Appeals Judges

2

ORDER DENYING RECONSIDERATION
PER CURIAM. This case arises under the Fair Labor Standards Act (FLSA), as
amended, and its implementing regulations.1 The United States Department of
Labor’s Wage and Hour Division (WHD) determined that Respondents Five M’s,
LLC, d/b/a L&W Auto Salvage (L&W), Five M’s LLC, d/b/a Valparaiso Car Care
Transmission (Valparaiso), and John Morgavan (Morgavan) (collectively,
Respondents)2 violated the FLSA’s overtime and minimum wage requirements.3
Among other things, the WHD assessed civil money penalties (CMPs) against
Respondents in the amount of $1,100 per violation for each of the thirty-five
employees that the WHD determined were underpaid, for a total of $38,500.
Respondents objected to the WHD’s assessment, and the matter was assigned
to an Administrative Law Judge (ALJ). After a hearing, the ALJ reduced the CMPs
to $250 per violation, for a total of $8,750. The Administrator of the WHD appealed
the ALJ’s decision to the Administrative Review Board (ARB or the Board). On
November 13, 2020, the ARB issued a decision that ordered Respondents to pay
CMPs of $550 per violation, for a total of $19,250.
On March 9, 2022, the ARB received a letter from John Morgavan
challenging the Board’s decision and stating that he believed “the decision made [by
the ALJ] is fair and should be upheld.” We consider Morgavan’s letter to be a
request for the Board to reconsider its decision.
The ARB may reconsider its decision upon the filing of a motion for
reconsideration within a “reasonable time” of the date on which the Board issued its
decision.4 In applying this timeliness requirement, “[t]he Board and its predecessors
have presumed a petition timely when the petition was filed within a short time

29 U.S.C. §§ 201-219 (2018), as implemented by the regulations at 29 C.F.R. Part
578 (2020).
1

Five M’s, LLC (Five M’s) is the parent company of auto-related businesses: L&W, a
salvage yard, Valparaiso, a repair shop, and Premier Auto Sales (Premier), a car
dealership. Premier is not a respondent in this case. Morgavan is an owner of Five M’s and
directs and controls its operations. Adm’r, Wage & Hour Division. U.S. Dep’t of Labor v.
Five M’s, LLC (Five M’s), ARB No. 2019-0014, ALJ Nos. 2015-FLS-00010, -00011, slip op. at
2 (ARB Nov. 13, 2020).
2

3

See 29 U.S.C. §§ 206 (minimum wage), 207 (overtime).

Henrich v. Ecolab, Inc., ARB No. 2005-0030, ALJ No. 2004-SOX-00051, slip op. at 11
(ARB May 30, 2007).
4

3
after the decision.”5 The Board has also “granted reconsideration where a petition,
though filed after a longer period, raised Rule 60(b)-type grounds or showed ‘good
cause’ for the delay.”6
The Board has typically found that a “short period” is twelve days or less.7 In
comparison and by way of example, the Board has determined that motions for
reconsideration filed thirty-four days, sixty days, and four months after the Board’s
decision were not timely.8 The Board issued its decision in this case on November
13, 2020, but Morgavan did not submit his request for reconsideration until March
9, 2022. Thus, Morgavan’s letter, submitted nearly sixteen months after the Board’s
decision, was not filed within a “short time.” Morgavan has also not raised any Rule
60(b)-type grounds for reconsideration,9 and has not shown good cause for his delay
in filing his request for reconsideration.10 Accordingly, we conclude that Morgavan’s
motion was not filed within a “reasonable time” after the Board entered its decision.
Even if Morgavan’s request for reconsideration had been timely, we would
nevertheless deny reconsideration. The Board generally will only reconsider its
decision if the movant demonstrates:
5

Id. at 15.

6

Id.

7

Id. at 12 n.27, 17 (collecting cases).

Id. at 17 (60 days); Powers v. Paper, Allied-Indus. Chem. & Energy Workers Int’l
Union, ARB No. 2004-0111, ALJ No. 2004-AIR-00019, slip op. at 4-5 (ARB Dec. 21, 2007)
(thirty-four days); Williams v. United Airlines, Inc., ARB No. 2008-0063, ALJ No. 2008-AIR00003, slip op. at 2 (ARB June 23, 2010) (four months).
8

See FED.R.CIV.P. 60(b). Morgavan alleges that the attorney who conducted his
deposition had a “vendetta” against him and the Department’s only concern is “to impose
the maximum statutory penalty.” To the extent he believes this led to “fraud . . . ,
misrepresentation, or misconduct” by the Department under Rule 60(b)(3), he has not
pointed to any evidence to support his assertion.
9

Morgavan asserts that he was not aware of the Administrator’s appeal or the
Board’s decision until November 2021. Morgavan was represented by counsel during the
ALJ proceedings and during the appeal to the Board, and the Board’s decision was sent to
Morgavan’s counsel. Morgavan has not asserted or provided evidence that his counsel did
not receive the Board’s decision. Notice to a party’s representative is deemed to be notice to
the party himself. Ramirez v. Norfolk S. Ry. Co., ARB No. 2017-0003, ALJ No. 2016-FRS00022, slip op. at 3 (ARB Jan. 12, 2017) (citing Zahara v. SLM Corp., ARB No. 2008-0020,
ALJ No. 2006-SOX-00130, slip op. at 3 (ARB Mar. 7, 2008); Lotspeich v. Starke Mem’l
Hosp., ARB No. 2005-0072, ALJ No. 2005-SOX-00014, slip op. at 4 (ARB July 31, 2006)).
Furthermore, even if Morgavan did not have actual or constructive notice of the ARB’s
decision when it was issued, he acknowledged that he was aware of the decision at least
four months before he submitted his request for reconsideration. Under the circumstances
of this case, four months is not a “short time” for purposes of reconsideration.
10

4

(i) material differences in fact or law from that 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, and (iv) failure to consider
material facts presented to the court before its decision.[11]
Morgavan appears to suggest that the Board failed to consider material facts
presented to the ALJ or the Board that would alter the outcome of the case.
Morgavan’s arguments do not convince us to reconsider our decision.
Morgavan first asserts that the WHD found violations with respect to two of
his companies, L&W and Valparaiso, but not his third company, Premier. Morgavan
does not explain the relevance of this point, but he appears to be suggesting that the
lack of violations with respect to Premier should be considered as a mitigating
factor when assessing the CMPs or that Premier’s compliance with the FLSA
suggests that his other companies complied as well. The fact that one of Morgavan’s
companies may not have violated the law in this instance does not excuse the
violations of Morgavan and his two other companies and does not negate or mitigate
the factors warranting the CMP imposed by the Board.
Morgavan next asserts that the allegations prompting the WHD’s
investigations of Respondents in 2005, 2012, and 2014 all “came from the same
person” (who he does not identify), that the attorney representing the Administrator
had a “vendetta” against him (for reasons he does not explain), and that one of his
employees was angry with the company and provided false information about a
minor performing unauthorized work in violation of the FLSA (an issue for which
the ALJ found in Morgavan’s favor and which the Administrator did not appeal to
the Board). Morgavan appears to be suggesting that these circumstances show that
the charges against his company were meritless and motivated by personal spite.
He did not point to any evidence to substantiate these assertions, and they do not
give the Board any reason to reconsider the veracity or weight of the evidence
supporting the Board’s assessment of CMPs.
Morgavan also asserts that “it was only two possible employees that were
owed anything.” Morgavan does not identify who the two employees were, or what
evidence could lead to this conclusion. As we stated in our decision, Respondents
owed two employees approximately half of the back wages identified in this case.12

Getman v. Southwest Secs., Inc., ARB No. 2004-0059, ALJ No. 2003-SOX-00008, slip
op. at 1-2 (ARB Mar. 7, 2006).
11

12

Five M’s, ARB No. 2019-0014, slip op. at 13.

5
Even so, the FLSA violations extended to other employees as well, even if to a lesser
degree.
Finally, Morgavan asserts that he paid $14,477.06 “to release the civil
judgment in January of 2022.” Morgavan appears to be referring to a payment he
made to satisfy a judgment against Respondents from the United States District
Court for the Northern District of Indiana.13 The District Court Judgment
concerned back wages and liquidated damages under the FLSA. This
administrative action concerns CMPs. The fact that Morgavan may have satisfied
the District Court’s judgment does not impact his obligation to pay the judgment in
this case.
For the foregoing reasons, Morgavan’s request for reconsideration is
DENIED.
SO ORDERED.

Perez v. Five M’s, No. 2:15cv176, 2017 WL 784204 (N.D.Ind. Mar. 1, 2017)
(unpublished). The District Court ordered Morgavan to pay $28,954.12. Id. at *11.
Respondents paid the Department of Labor half of that sum—$14,477.06—in June 2019.
Five M’s, ARB No. 2019-0014, slip op. at 13-15. Although it is not clear from Morgavan’s
letter, Morgavan’s alleged payment of an additional $14,477.06 in January 2022 appears to
be the balance owed on the District Court judgment.
13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A7fa3d5ca50cde948. Public record. Not legal advice.