Jerry Ballard vs. AAFES Full Decision
Excerpts.
STIPULATIONS
The parties stipulated, and this Administrative Law Judge finds, the following as fact (TR at 6-
7):
1. The Claimant sustained a work-related injury to his neck and back on February 22, 2008,
while performing assigned duties as a warehouseman.
2. The Claimant filed a claim for benefits based on the February 22, 2008 work-related
injury under the LHWCA, which claim was adjudicated with findings of fact and
conclusions of law being promulgated in a “Decision and Order – Granting and Denying
Benefits In-Part” on March 29, 2011. Such Decision and Order being a final action of the
Department of Labor as of April 29, 2011.
3. On April 6, 2011, Claimant made a request for modification of the March 29, 2011
“Decision and Order-Granting and Denying In-Part” and alleging an allegation of
Employer’s violation of §948(a) of the LHWCA.
4. The District Director held an informal conference on June 23, 2011.
5. The Employer controverted the District Director’s recommendations on July 26, 2011.
6. The Claimant’s employment was terminated by Respondent on March 2, 2011.
7. Disability compensation ordered by the March 21, 2011 Decision and Order was paid
through March 2, 2011.
8. The Claimant has not been employed since March 2, 2011.
9. The Claimant has not received disability compensation under the LHWCA since March
2, 2011.
ISSUES
The issues remaining to be resolved are (TR 7-8):
1. Did Respondent violate §948(a) of the LHWCA on March 2, 2011 by terminating the
Claimant’s employment?
2. If so, what penalty and/or relief is appropriate under §948(a) of the LHWCA?
3. Is the Claimant entitled to a change in benefits under the LHWCA based on a change in
condition since March 2, 2011?
4. Was there a mistake in the determination of a material fact in the March 29, 2011
Decision and Order?
5. Will the interests of justice be served by re-opening the March 29, 2011 Decision and
Order?
6. Is the Claimant entitled to additional reimbursement for certain travel expenses for travel
to the January 25, 2011, hearing in Newport News, Virginia under §928(d)?
7. Is the Claimant entitled to additional compensation for Respondent’s failure to make
payments under §914(e) or §914(f) of the LHWCA?
8. Is Respondent liable for legal fees and costs under the LHWCA?
....
Claimant’s counsel submits that the Claimant was terminated from his employment while
disabled and entitled to benefits under the LHWCA in violation of §948(a) and that the
Respondent’s argument that the Claimant was terminated for lying on his initial employment
application 10 years prior to the termination was a pretext for the adverse employment actions
taken on March 2, 2011. He argues that the uncontradicted evidence is that the Claimant was
called into the human resources department by Respondent in the fall of 2001 and provided
human resources with a written explanation of all arrests and/or convictions listed in EX 3 and
was directed to return to work.
Claimant’s counsel submits that Respondent does not claim the Claimant was a poor performer,
insubordinate, or unauthorized absentee; but, “instead they attempted to resurrect something that
was dealt with in 2001.” He argues that “instead of simply saying they had no work for him,
AAFES used a pretext to fire him after he had worked for AAFES for ten (10) years.”
Respondent argues that the Claimant’s employment was properly terminated for falsifying his
October 2, 2001 employment application as related to disclosure of history of arrests, charges,
convictions, fines and non-judicial punishment.
....
Here the Claimant has established that an adverse employment action was taken by AAFES
during the pendency of a claim for benefits under the LHWCA in the form of termination of
employment on March 2, 2011. The Claimant has also established by inference that the
termination was due, at least in part, because he had a pending claim for benefits under the
LHWCA at the time of the adverse actions. This is a prima facie case of retaliation in violation
of §948(a) of the LHWCA. Since Mr. Montgomery was not aware until February 3, 2011 of the
claim that the criminal infractions were explained by the Claimant to human resources in 2001,
his actions of placing the Claimant on suspension with pay did not violate §948(a) of the
LHWCA.
Accordingly, AAFES must rebut this prima facie case by demonstrating that the March 2, 2011
termination was due solely to non-discriminatory reasons in order to escape liability under
§948(a) of the LHWCA. In that regard AAFES has failed to rebut the evidence that AAFES was
aware of the infractions in 2001, the Claimant adequately explained the infractions in 2001, and
AAFES accepted that 2001 explanation by retaining the Claimant as an employee continuously
through the March 2, 2011 termination date. The fact Mr. Montgomery accepted the Union
representative’s argument on February 3, 2011 that the infractions with the military would have
been reflected on the DD-214 that would have been part of the Claimant’s 2001 employment
application does not support Mr. Montgomery’s conclusion that the Claimant did not file a
written supplement to the employment application in 2001 explaining the civilian infractions
noted by Agent Mix December 8, 2001 (the same infractions subsequently reported by B.L.
McCray on January 25, 2011), does not contradict the Claimant’s testimony concerning his 2001
explanation of the civilian infractions, and does not excuse AAFES’s rush to terminate the
Claimant prior to the March 29, 2011 Decision and Order.
After deliberation on the evidence of record, this Administrative Law Judge finds that the
Claimant has established a prima facie violation of §948(a) of the LHWCA by AAFES
terminating the Claimant’s employment on March 2, 2011 due at least in part to the pending
claim for benefits under the LHWCA and that AAFES has failed to rebut the prima facie case
that AAFES so violated §948(a) of the LHWCA.
...
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