Administrative Review Board

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

BENJAMIN W.O. KUHAULUA, III,

COMPLAINANT,

ARB CASE NO.

2017-0067

ALJ CASE NO.

2017-WPC-00001

DATE: March 17, 2020

v.

COUNTY OF KAUA'I SOLID

WASTE DIVISION,

RESPONDENT.

Appearances:

For the Complainant:

Stanford M.J. Manuia, Esq.; Attorney at Law; Honolulu, Hawaii

For the Respondent:

Sinclair Salas-Ferguson, Esq.; Office of the County Attorney; Lihu'e,

Hawaii

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

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

DECISION AND ORDER

PER CURIAM. The Complainant, Benjamin Kuhaulua, filed a retaliation

complaint under the Federal Water Pollution Control Act (WPCA) and its

implementing regulations. 33 U.S.C. § 1367 (1972); 29 C.F.R. Part 24 (2019).

Complainant alleged that his employer, County of Kaua'i Solid Waste Division,

violated the WPCA whistleblower protection provisions by withholding his paycheck

for four days and constructively discharging him from employment.

On July 8, 2017, Respondent filed a motion for summary decision asserting

that any delay that occurred in Complainant receiving his paycheck was a result of

the postal service and that Complainant was still an employee and therefore could

not have been constructively discharged. 1 Thus, Respondent argued that there was

no adverse action in the case as a matter of law. 2

Complainant filed an opposition to the motion for summary decision including

no evidence of any kind and citing no legal authority. In his opposition Complainant

abandoned the theory of adverse action based on an alleged four-day delay in

receiving a check as he offered no argument to dispute Respondent's arguments.

Regarding the constructive discharge allegation, Complainant argued that the

Respondent's retention of Complainant on temporary total disability status

amounted to constructive termination.

On July 28, 2017, the ALJ granted Respondent's motion for summary decision,

concluding as a matter of law that Complainant failed to raise a genuine issue of

material fact that Respondent took any adverse action against him. Complainant

filed a petition requesting that the Administrative Review Board (ARB or the Board)

review the ALJ's order. We affirm.

JURISDICTION AND STANDARD OF REVIEW

The WPCA's employee-protection provision authorizes the Secretary of Labor

to hear complaints of alleged discrimination because of protected activity and, upon

finding a violation, to order abatement and other remedies. 33 U.S.C. § 1367. The

Secretary has delegated authority to the Administrative Review Board (ARB or the

Board) to review an ALJ's decision. Secretary's Order No. 01-2020 (Delegation of

Respondent submitted evidence Complainant is on temporary leave for a

disability related to workers' compensation and that it will return Complainant to his prior

job as soon as he provides Respondent with a medical release. D. & 0. at 8. In response,

Complainant offered no proof of constructive discharge. Id.

2

Respondent also argued that with regard to the alleged check delay, that

Complainant's protected activity was not a motivating factor in that delay. D. & 0. at 2-3.

The ALJ did not address this argument in the D. & 0.

2

Authority and Assignment of Responsibility to the Administrative Review Board)

(Feb. 21, 2020).

Under the Administrative Procedure Act, the ARB, as the Secretary's designee,

acts with all the powers the Secretary would possess in rendering a decision under

the whistleblower statutes. The ARB engages in de novo review of the ALJ's decision

granting summary decision. See 5 U.S.C. § 557(b) (1976); Griffo v. Book Dog Books,

LLC, ARB No. 18-029, ALJ No. 2016-SOX-041 (ARB May 2, 2019). Summary decision

is permitted where "there is no genuine dispute as to any material fact and the

movant is entitled to decision as a matter of law." 29 C.F.R. § 18. 72(a) (2017). On

summary decision, the ALJ, in the first instance and the Board on appeal must review

the record in the light most favorable to the nonmoving party. Micallef v. Harrah's

Rincon Casino & Resort, ARB No. 16-095, ALJ No. 2015- SOX-025, slip op. at 3 (ARB

July 5, 2018).

CONCLUSION

The ALJ's decision is in accordance with law. For the reasons stated by the

ALJ, Kuhaulua failed to raise a genuine issue of material fact that Respondent

engaged in any adverse action against him. On appeal, Complainant has failed to

raise any genuine issue of material fact with respect to the issue of adverse action as

presented to the ALJ. Accordingly, we adopt the ALJ's well-reasoned Order Granting

Summary Decision on Reconsideration and attach a copy hereto.

SO ORDERED.

3

U.S. Department of Labor

Office of Administrative Law Judges

90 Seventh Street, Suite 4-800

San Francisco, CA 9410:.-1516

(415) 625-2200

(415) 625-2201 (FAX)

Issue Date: 28 July 2017

CASENO. 2017-WPC-00001

In the Matter of

BENJAMIN W.O. KUHAULUA, III,

Complainant,

V.

COUNTY OF KAUA'I SOLID

WASTE DIVISION,

Respondent.

DECISION AND ORDER GRANTING

SUMMARY DECISION

Appearances:

Stanford M. J. Manuia, Esq.

for Complainant

Sinclair Sala-Ferguson, Esq.

for Respondent

Before:

Steven B. Berlin

Administrative Law Judge

Background and Procedural History

This case arises under the employee protection provisions of the Federal Water Pollution Act, 33

U.S.C. § 1367 (and its implementing regulations at 29 C.F.R. Part 24). 1 Complainant last

performed work for Respondent on September 1, 2015; he has been on a workers' compensation

leave since then. It appeared from OSHA's "Secretary's Findings" that the only adverse action

1

Complainant's administrative complaint to the Occupational Safety & Health Administration also raised alleged

violations under the whistleblower protection provisions of the Surface Transportation Assistance Act, 49 U.S.C.

§ 31105, and the Occupational Safety & Health Act (section l l(c)), 29 U.S.C. § 660(c). With the parties'

stipulation, I dismissed the claim under the Surlace Transportation Assistance Act because that Act's whistleblower

protection provision does not extend to employees of states or their political subdivisions. See Order (Apr. 17,

2017) at 1-2; Tr. Pretrial Conf. 4/14/2017 at 5:6-6:4. As Complainant does not dispute, this Office does not have

jurisdiction to adjudicate claims under OSHA§ l l(c).

Complainant alleged in his complaint was that Respondent delayed issuing one of Complainant's

workers' compensation checks for four days. 2

On November 15, 2016, I set the matter for a hearing to begin on April 24, 2017. At a telephonic

pretrial conference (on the record) on April 14, 2017, I asked Complainant's counsel if

Complainant was alleging any other adverse action. Tr. (4/14/2017) at 6: 15-23. Counsel stated

that "as a result of being a whistleblower, [Complainant was] going to lose his job ...

permanently and not be able to find one on the island [i.e., Kuau'i, where Complainant lives]."

Tr. 6:24-7:4.

As this seemed to allege no more than Complainant's anticipation of what he perceived to be a

likely future adverse action, I asked again. This time, counsel stated that Complainant was

alleging that "he's been constructively terminated." Tr. 7:5-10.

When asked for a brief description of the evidence Complainant intended to present to show a

constructive discharge, 3 counsel stated: "Well, basically, when he tried to assert his claim, if

he's eligible to work with that injury, he's not medically allowed to go back to work." Tr. 7:248:4. As I found that unclear, I questioned further. Eventually, Complainant's counsel stated that

"[Complainant's] doctors have indicated that he should not return to that job because of what

occurred. So he won't be able to go back." Tr. 13: I 9-21. Based on that, I stated: "If

[Complainant's] doctors are going to say that [Complainant] was so badly harmed that he can

never return to employment [with Respondent] - although he might be able to work somewhere

else - I could see that as a constructive discharge." Tr. 14: 15-20.

Respondent's counsel stated that this was the first he'd heard of an alleged constructive

discharge. Tr. 8: 17-20. Complainant's counsel conceded that Complainant had never notified

Respondent of this allegation. Tr. 8:21-25. But he did not formally move to amend the

complaint.

In the interest of justice and despite it being the eve of trial, I sua sponte allowed Complainant to

4

amend his complaint to allege a constructive discharge as a second adverse action. Complainant

had moved for a continuance, citing health concerns. I continued the hearing to allow

Complainant time for his health to improve and to allow the parties time for discovery on the

newly alleged constructive discharge. I notified the parties that the case would be heard in the

week of August 7, 20 I 7.

On July 8,2017, Respondent filed a motion for summary decision. Respondent first argues that

it timely issued and sent the workers' compensation check, and even if Complainant received it

late, it was just a delay in the mail; Complainant's protected activity was not a motivating factor

2

Complainant's OSHA complaint is not on the record.

3

As the trial was scheduled to begin in IO days, counsel should have known what evidence he would present and

should have disclosed it in his pre-trial filings and exchanges.

4

The procedural rules published at 29 C.F.R. Part 18 apply to cases under the Federal Water Pollution Act. 29

C.F .R. § 24.1 OO(b). Those procedural rules provide that "[t]he judge may allow parties to amend and supplement

their filings" after referral to this Office. 29 C.F.R. § 18.26.

- 2-

in the delay. Second, Respondent argues that Complainant is still an employee and thus could

not have been constructively discharged. Complainant filed an opposition on July 17, 2017. I

will grant the motion.

Undisputed Facts 5

Respondent employs Complainant as an equipment operator. Deel. ofNiitani, ~ 3. Complainant

has been on a workers' compensation leave since September 1, 2015, based on an injury he

sustained on August 26, 2015. Id., ,r 4.

On July 5, 2016, Complainant emailed a form to Respondent's payroll clerk, asking Respondent

to change the direct deposit of his workers' compensation check to a different bank. Deel. of

Agbulos, ,r 3. The payroll clerk telephoned Complainant that same day, verified that

Complainant wanted the change, and notified him that Respondent would issue one paper check

while the change in direct deposit was being arranged. Id., ,r,r 4-5.

Respondent pays employees bimonthly, on the fifteenth and last day of the month. Deel. of

Yasutake, ,r 3. In preparation for the payroll on July 15, 2016, the Solid Waste Division (where

Complainant is employed) received a paper check for Complainant's workers' compensation on

July 14, 2016. Id., ,r 4; Deel. of Agbulos, ,r 6. The Division Manager took the paycheck to

Respondent's mailroom and dropped it off for outgoing mail. Deel. of Yasutake, ,r 5. This is

Respondent's general practice for distributing paper checks when an employee is out on leave,

such as for workers' compensation. Id., ,r 6.

Respondent's human resources manager confirms that Complainant remains an employee in the

same job, has not been terminated from employment, and will resume his same job once he is

[medically] cleared to return. Deel. ofNiitani, ,r,r 3, 5, 6.

Discussion

Analytical framework for and the parties ' burdens on motions for summary decision. On

summary decision, I must determine if, based on the pleadings, affidavits, material obtained by

discovery or otherwise, or matters officially noticed, there is no genuine issue of material fact

such that the moving party is entitled to judgment as a matter of law. See 29 C.F.R. § 18.72

(2015); Fed. R. Civ. P. 56. I consider the facts in the light most favorable to the non-moving

party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,255 (1986). I draw all reasonable

inferences in favor of the non-moving party and may not make credibility determinations or

weigh the evidence. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000)

(applying same rule in cases under Fed. R. Civ. P. 50 and 56).

Once the moving party shows the absence of a genuine issue of material fact, the non-moving

party cannot rest on his pleadings, but must present "specific facts showing that there is a

genuine issue for trial." Celotex Corp. v. Catrett,477 U.S. 317,324 (1986); 29 C.F.R. §18.40(c).

5

Respondent must base its motion on undisputed facts. See Discussion below. Accordingly, the fact findings in the

text above are for purposes of this motion only.

- 3 -

A genuine issue exists when, based on the evidence, a reasonable fact-finder could rule for the

non-moving party. See Anderson, 477 U.S. at 252.

Although Complainant has the ultimate burden to raise a prima facie case at trial, for purposes of

its motion for summary decision, Respondent must meet both a burden of production and a

burden of persuasion:

A moving party without the ultimate burden of persuasion at trial ... has both the

initial burden of production and the ultimate burden of persuasion on a motion for

summary judgment. In order to carry its burden of production, the moving party

must either produce evidence negating an essential element of the nonmoving

party's claim or defense or show that the nonmoving party does not have enough

evidence of an essential element to carry its ultimate burden of persuasion at trial.

In order to carry its ultimate burden of persuasion on the motion, the moving

party must persuade the court that there is no genuine issue of material fact.

If a moving party fails to carry its initial burden of production, the nonmoving

party has no obligation to produce anything, even if the nonmoving party would

have the ultimate burden of persuasion at trial. In such a case, the nonmoving

party may defeat the motion for summary judgment without producing anything.

If, however, a moving party carries its burden of production, the nonmoving party

must produce evidence to support its claim or defense. If the nonmoving party

fails to produce enough evidence to create a genuine issue of material fact, the

moving party wins the motion for summary judgment. But if the nonmoving

party produces enough evidence to create a genuine issue of material fact, the

nonmoving party defeats the motion.

Nissan Fire & Marine Ins. Co, Ltd. v. Fritz Companies, Inc., 210 F.3d l 099, 1102-03 (9th Cir.

2000) (citations omitted).

The procedural requirements on a motion for summary decision include in pertinent part:

(I) Supporting factual positions. A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by:

(i) Citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion

only), admissions, interrogatory answers, or other materials; or

(ii) Showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.

29 C.F.R. § 18.72(c).

Complainant must show an adverse action as part of his primafacie case.

-4-

In cases arising under [Federal Water Pollution Act (among certain other

environmental protection statutes)], a determination that a violation has occurred

may only be made if the complainant has demonstrated by a preponderance of the

evidence that the protected activity caused or was a motivating factor in the

adverse action alleged in the complaint.

29 C.F.R. § 24.109(b)(2).

Here, the allegations of adverse action in the complaint, as amended, are: (I) the four-day late

delivered workers' compensation check, and (2) a constructive discharge. Although

Complainant - through counsel - filed an opposition to the motion for summary decision, he

included no affidavits, declarations, deposition transcripts, discovery responses, stipulations,

exhibits, documents, or other evidence of any kind. He cited no legal authority.

The workers' compensation check. On the allegation of the late-delivered workers'

compensation check, Respondent's evidence shows that Respondent was paying benefits through

direct deposit, that it was Complainant who interrupted this because he changed banks, that

Respondent's payroll clerk knew the change could not be put in place in time for the next check,

that she arranged to have a physical check cut on time and mailed to Complainant, that she told

him she would do that, and that Respondent mailed the check the day before it became payable.

Complainant offers nothing to dispute this and offers no argument to support that an adverse

action occurred. He appears to abandon this theory.

I therefore find that Respondent did not delay the workers' compensation by four days as

Complainant alleges - or at all. As the undisputed evidence shows that this alleged adverse

action never occurred, the theory based on it fails as a matter oflaw. If there was any delay, the

Post Office took too long to deliver the check; it therefore cannot be evidence of Respondent's

retaliation. 6

The constructive discharge: legal standard. Constructive termination is tested on an objective

standard. Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004) (Title VII sexual

harassment). A court must determine whether "working conditions became so intolerable that a

reasonable person in the employee's position would have felt compelled to resign." Id.; see also

Poland v. Chertoff, 494 F.3d 1174 (9th Cir. 2007) (applying the Suders test in an age

discrimination claim). The Board applies the same test to Sarbanes-Oxley cases. See Gattegno

v. Prospect Energy Corp., ARB No. 06-118, ALJ No. 2006-SOX-00008, slip op. at 15 (ARB

May 29, 2008).

To be objectively intolerable, conditions must deteriorate "to the point that they become

sufficiently extraordinary and egregious to overcome the normal motivation of a competent,

diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or

her employer." Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000) (citing, EEOC

6

Complainant and Respondent are both located on the island of Kuau'i, Hawaii. It would be reasonable for

Respondent to assume that a check mailed on Thursday, July 14, 2016 would arrive at Complainant's address on

Friday, July 15, 2016. In any event, the check was mailed before it was owed to Complainant.

-5-

Policy Guide, which requires conditions that "foreseeably would compel a reasonable employee

to quit"); see also Hillebrandv. Coldwater Creek, Inc., ALJ Case No. 2008-SOX-2010 at 78

(ALJ April 23, 2010) ("an employee is constructively discharged when her working conditions

are rendered 'so difficult, unpleasant, and unattractive that a reasonable person would have felt

compelled to resign, such that the resignation is effectively involuntary") (quoting Reines v.

Venture Bank & Venture Fin. Group, 2005-SOX-00112 at 55 (ALJ Mar. 13, 2007)).

The standard is demanding because employers and employees should solve problems within the

existing employee-employer relationship. Poland, 494 F .3d at 1184. Thus, "' [a]n employee

may not ... be unreasonably sensitive to a change in job responsibilities."' Id. at 1185 (quoting

Serrano-Cruz v. DFI P.R., Inc., 109 F.3d 23, 26 (1st Cir. 1997)). But an employee alleging a

constructive discharge need not show that the employer intended to cause the employee to quit;

the employer's intent is not an element. Poland at 1184 n.7.

The objective test focuses on "'a reasonable person in [the employee's] position."' Watson v.

Nationwide Ins. Co., 823 F.2d 360,361 (9th Cir. 1987) (quoting Satterwhite v. Smith, 744 F.2d

1380, 1381 (9th Cir. 1984)); see also Suders, 524 U.S. at 141 ("Did working conditions become

so intolerable that a reasonable person in the employee's position would have felt compelled to

resign?") ( emphasis added). What is intolerable to a reasonable chief operating officer of a

technology start-up might differ from what is intolerable to a reasonable line worker at an

assembly plant, a mid-level manager, or a chief operating officer of a more established, multinational corporation. The constructive discharge analysis must take into account the totality of

the circumstances. Watson, 832 F.2d at 361.

"The determination whether conditions were so intolerable and discriminatory as to justify a

reasonable employee's decision to resign is normally a factual question left to the trier of fact."

Watson v. Nationwide Ins. Co., 823 F. 2d 360,361 (9th Cir. 1987). Generally, however, a single

incident that is not part of a wider pattern is insufficient. Wallace v. City of San Diego, 479 F.3d

616,626 (9th Cir. 2007) ("a plaintiff ... must show some aggravating factors, such as a

continuous pattern of discriminatory treatment") (citing Schnidrig v. Columbia Machine, Inc., 80

F.3d 1406, 1411 (9th Cir. 1996)). 7

7

Some examples in the case law include:

Courts have generally held that assigning employees to undesirable geographic locations or job duties is not a

constructive discharge. Thus, in Poland, a long-term employee of the Customs Service who had previously been

stationed in four different states and the District of Columbia was not constructively discharged when he was

transferred cross-country from Oregon to Virginia and from a supervisory to a non-supervisory position (without

loss of pay), especially in that he continued to work for eight months after the transfer until he took an early

retirement, thus suggesting that the transfer was something the employee could tolerate. 494 F.3d at l 184-85.

A company vice-president was not constructively discharged when he was passed over for president and the job was

given to a man fifteen years younger - even when he was moved to a smaller office and excluded from a lunch

meeting, and other executives were told not to discuss financial matters with him. Schnidrig, 80 F.3d at 1411-12.

As the Court noted, the employer had not demoted the plaintiff, cut his pay, disciplined him, or encouraged him to

leave. Id. at 1412.

On the other hand, when a district court set aside a jury verdict and rejected a plaintiff's claim of constructive

discharge, the Ninth Circuit reversed. Wallace v. City of San Diego, 4 79 F .3d ~ 620 (9th Cir. 2006). In Wallace,

a police sergeant also was a naval reserve officer. Id. Over the years, he'd taken several leaves of absence from his

police work to go on active duty with the Navy. Id. at 620-22. After he served on a seven-month tour in Operation

-6-

Constructive discharge: facts. There is nothing to suggest that Complainant was forced to

resign or has resigned because of intolerable conditions. His theory is somewhat different.

In the pre-hearing conference, the parties understood that Complainant was temporarily totally

disabled and on a stress-related workers' compensation leave. I allowed Complainant to amend

his complaint based on assertions his attorney made at the conference. Those assertions were

that Complainant's medical doctors opined that Complainant could never return to work for

Respondent because his work environment there had been so stressful. Under the Act,

Complainant would then have to show that the stressful conditions were caused or motivated by

his engaging in activity that the Act protects.

On the present motion, as stated above, Complainant offers no evidence in any form. He offers

no citation to authority.

The closest Complainant comes to showing a genuine issue in dispute on the issue of

constructive discharge is a one-sentence assertion from his counsel about what Complainant's

medical records will show if and when Complainant offers them. Specifically, counsel states

that the records of three of Complainant's health care providers will "associate" Complainant's

whistleblowing with the Complainant's stress injury, continuing need for medical care, and

continuing disability. 8

From this Complainant - through counsel - argues:

Keeping [Complainant] on temporary total disability (TTD) status rather than

considering his medical diagnosis resulting from consecutive work stress injuries

in the employ of [Respondent] amounts to "constructive termination" .... 9

Desert Storm, the police department denied him several promotions, reassigned him farther from his home, gave him

undesirable or rednced responsibilities, subjected him to repeated discipline disproportionate to the alleged

wrongdoing, and denied him permission to teach at the police academy. Id. at 621, 626. When he took an extended

leave to serve in Bosnia in 1999-2000, he was subjected to discipline for allegedly neglecting to tell the department

that his tour bad been extended. Id. The Court held that this was sufficient to support the jury's finding of a

constructive discharge and that it was error for the district court to grant judgment notwithstanding the verdict. Id. at

628.

In a Sarbanes-Oxley case, an employee in a leadership position with her own office had received high performance

ratings. Brown v. Lockheed Martin Corporation, ARB Case No. 10-050; ALJ Case No. 2008-SOX-00049 (ARB

Feb. 28, 2011) at 10. After she engaged in protected activity, the employer gave her poor performance ratings, took

away some of her core duties, took away her office and parking space, confronted her with "visceral opposition"

when she applied for a promotion, asked her to work from home, then asked her to return to work without an

adequate workspace, took away her leadership position, refused to allowed her to attend an award ceremony at

which she was to receive an award, and kept her constantly uncertain as to her job status and whether her job would

be eliminated. Id. The Administrative Review Board affirmed an administrative law judge's finding that this

environment was sufficiently adverse to cause a "reasonable person in [the employee's] shoes" to resign. Id. at 11.

8

See Complainant's opposition brief at 2. Complainant also notes that Respondent accepted Complainant's stressbased workers' compensation claim. id. at 3.

9

Curiously, Complainant's counsel also argues that keeping Complainant on temporary total disability is

"psychologically damaging as [Complainant's] TTD status takes away his hope of working anywhere on the island

of Kauai." Nothing requires Complainant to continue receiving temporary total disability benefits. He can

-7-

Complainant's opposition brief at 4.

This argument fails for two reasons. First, the undisputed evidence is that Respondent continues

to view Complainant as being on a leave related to his workers' compensation claim, that the

claim is for a disability that is temporary, and that Respondent will return Complainant to his

prior job as soon as Complainant provides Respondent with a medical release. I reject the notion

that Respondent's continuing to provide benefits for temporary total disability until Complainant

is medically ready to return to work "amounts to 'constructive termination.'" On the contrary,

this is the optimal response an employer would give an injured worker: his job is being held

open for him while he is recovering from the injury and being provided benefits. Nothing about

this begins to approach the standard for a constructive discharge discussed above.

Second, Complainant - through counsel - does not suggest that any medical provider will opine

or any medical record will reflect an opinion that, when Complainant otherwise is ready to work,

he must not return to work for Respondent because of the negative experiences he had there.

That is the kind of proof that Complainant's counsel promised when I allowed Complainant to

amend his complaint to allege the second adverse action of a constructive discharge.

Complainant has not fulfilled that promise.

In all, Complainant offered no proof of constructive discharge. Actually, he offered no proof at

all. Given Respondent's showing that it will return Complainant to his job as soon as he is

medically released, Complainant's failure to present any evidence is sufficient grounds to grant

summary judgment. See Nissan, supra, 210 F.3d at 1102-03.

As the courts have held: "Summary judgment is not a dress rehearsal or practice run; it 'is the

put up or shut up moment in a lawsuit, when a party must show what evidence it has that would

convince a trier of fact to accept its version of events."' Hammel v. Eau Galle Cheese Factory,

407 F.3d 852,859 (7th Cir. 2005); see Anderson, 477 U.S. at 257 (plaintiff must present evidence

"even where the evidence is likely to be within the possession of the defendant, as long as the

plaintiff has had a full opportunity to conduct discovery"); Far Out Productions, Inc. v. Oskar,

24 7 F.3d 986, 997 (9th Cir. 200 I) (non-movant's affidavits were insufficient to raise a genuine

issue of material fact because they were "entirely conclusory" and did "not present any specific

facts to support" their claims); Chapman v. Rudd Paint & Varnish Co., 409 F.2d 635, 643 (9th

Cir. 1969) (a non-movant is "under a duty to show that he can produce evidence at trial, and is

not entitled to a denial of that motion upon the unsubstantiated hope that he can produce such

evidence at the trial")

Even ifl were to consider Complainant's counsel's suggestion of what evidence might exist in

relevant medical records, nothing described as being in that evidence would show a constructive

discharge.

Given this failure of evidence, the constructive discharge theory also fails as a matter of law.

withdraw his workers' compensation claim at any time. More to the point, if his medical providers advise

Complainant that he can work and he wants to apply for jobs other than working for Respondent, he need not wait

for Respondent to agree.

-8-

Order

For the foregoing reasons, I conclude that Respondent has established as a matter oflaw that it

took neither of the adverse actions that Complainant alleges in his complaint, as amended. The

showing of an adverse action is a required element of Complainant's prima facie case. 29 C.F.R.

§ 24.109(b)(2). Accordingly,

Respondent's motion for summary decision is GRANTED. Complainant's claim is DENIED

and DISMISSED. The hearing set for the week of August 7, 2017 is VACATED.

This order will be served on Complainant's counsel and Respondent's counsel by facsimile or

email. All other service is by U.S. mail.

SO ORDERED.

Digitally signed ~y STEVEN BERLIN

ON: CN=STEVEN BERLIN. OU=ADMIN

LAW JUDGE, O=US DOL Office of

Administrative Law Judges, L=san

Francisco, S=CA, C=US

Lacatlon: San Francisco CA

STEVEN B. BERLIN

Administrative Law Judge

NOTICE OF APPEAL RIGHTS: This Decision and Order will become the final order of the

Secretary of Labor unless a written petition for review is filed with the Administrative Review

Board ("the Board") within 10 business days of the date of this decision. The Board's address is:

Administrative Review Board, U.S. Department of Labor, Suite S-5220, 200 Constitution

Avenue, NW, Washington DC 20210, for traditional paper filing. Alternatively, the Board offers

an Electronic File and Service Request (EFSR) system. The EFSR for electronic filing (eFile)

permits the submission of forms and documents to the Board through the Internet instead of

using postal mail and fax. The EFSR portal allows parties to file new appeals electronically,

receive electronic service of Board issuances, file briefs and motions electronically, and check

the status of existing appeals via a web-based interface accessible 24 hours every day. No paper

copies need be filed.

An e-Filer must register as a user, by filing an online registration form. To register, thee-Filer

must have a valid e-mail address. The Board must validate thee-Filer before he or she may file

any e-Filed document. After the Board has accepted an e-Filing, it is handled just as it would be

had it been filed in a more traditional manner. e-Filers will also have access to electronic service

(eService), which is simply a way to receive documents, issued by the Board, through the

Internet instead of mailing paper notices/documents.

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Information regarding registration for access to the EFSR system, as well as a step by step user

guide and FAQs can be found at: https://dol-appeals.entellitrak.com. If you have any questions or

comments, please contact: Boards-EFSR-Help@dol.gov

The date of the postmark, facsimile transmittal, ore-filing will be considered to be the date of

filing. If the petition is filed in person, by hand-delivery or other means, the petition is

considered filed upon receipt. The petition for review must specifically identify the findings,

conclusions or orders to which exception is taken. Any exception not specifically urged

ordinarily will be deemed to have been waived by the parties.

At the same time that you file your petition with the Board, you must serve a copy of the petition

on (1) all parties, (2) the Chief Administrative Law Judge, U.S. Dept. of Labor, Office of

Administrative Law Judges, 800 K Street, NW, Suite 400-North, Washington, DC 20001-8001,

(3) the Assistant Secretary, Occupational Safety and Health Administration, and (4) the

Associate Solicitor, Division of Fair Labor Standards. Addresses for the parties, the Assistant

Secretary for OSHA, and the Associate Solicitor are found on the service sheet accompanying

this Decision and Order.

If filing paper copies, you must file an original and four copies of the petition for review with the

Board, together with one copy of this decision. In addition, within 30 calendar days of filing the

petition for review you must file with the Board an original and four copies of a supporting legal

brief of points and authorities, not to exceed thirty double-spaced typed pages, and you may file

an appendix (one copy only) consisting ofrelevant excerpts of the record of the proceedings

from which the appeal is taken, upon which you rely in support of your petition for review. If

you e-File your petition and opening brief, only one copy need be uploaded.

Any response in opposition to a petition for review must be filed with the Board within 30

calendar days from the date of filing of the petitioning party's supporting legal brief of points

and authorities. The response in opposition to the petition for review must include an original

and four copies of the responding party's legal brief of points and authorities in opposition to the

petition, not to exceed thirty double-spaced typed pages, and may include an appendix (one copy

only) consisting ofrelevant excerpts of the record of the proceedings from which appeal has

been taken, upon which the responding party relies. If you e-File your responsive brief, only one

copy need be uploaded.

Upon receipt of a legal brief filed in opposition to a petition for review, the petitioning party may

file a reply brief (original and four copies), not to exceed ten double-spaced typed pages, within

such time period as may be ordered by the Board. If you e-File your reply brief, only one copy

need be uploaded.

If a timely petition for review is not filed, or the Board denies review, this Decision and Order

will become the final order of the Secretary of Labor. See 29 C.F.R. §§ 24.109(e)and 24.110.

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