January 2020
Barboza v. BNSF Railway Co., ARB No. 2018-0076, ALJ No. 2017-FRS-00111 (ARB Jan. 28, 2020) (per curiam) (Order Denying Reconsideration)
USDOL/OALJ Reporter
Casenote(s):
The ARB had earlier denied Complainant’s motion for reconsideration because it concluded that none of the factors supporting reconsideration were satisfied. Complainant filed a petition for reconsideration arguing that grounds for reconsideration existed. The ARB denied the petition for the same reasons that it denied the original motion for reconsideration.
Kim v. SK Hynix Memory Solutions, ARB No. 2020-0020, ALJ No. 2019-SOX-00012 (ARB Jan. 28, 2020) (Decision and Order Denying Petition for Interlocutory Appeal)
Casenote(s):
INTERLOCUTORY APPEAL; DENIALS OF FRCP 12(b)(6) TYPE MOTIONS ARE ORDINARILY NOT SUBJECT TO APPEAL UNDER THE COLLATERAL ORDER DOCTRINE
In Kim v. SK Hynix Memory Solutions, ARB No. 2020-0020, ALJ No. 2019-SOX-00012 (ARB Jan. 28, 2020), Respondent SK Hynix moved to dismiss Complainant’s SOX complaint on the ground that Complainant’s direct employer is not covered under SOX and therefore DOL does not have jurisdiction. The ALJ denied the motion based on “affiliate” status, which the ALJ defined as one who “controls, is controlled by, or is under common control with an issuer of a security.” The ALJ treated the motion as a threshold merits motion—and not one of jurisdiction—and concluded that the issue of “control” is fact dependent and that Complainant had met her pleading burden. The ALJ also concluded, based on ARB precedent, that the standard set forth in Twombly / Iqbal is not applicable to ALJ proceedings. The ALJ denied SK Hynix’s motion to certify the question for interlocutory appeal. SK Hynix then petitioned for interlocutory appeal on the ground that the ALJ did not correctly apply the definition of control applicable to securities laws, and that Complainant’s failed to plead any facts that a publicly traded corporation controlled Complainant’s employer. The ARB found that SK Hynix failed to demonstrate “exceptional circumstances” for interlocutory review.
The ARB noted that Respondents had not argued the collateral order exception requirements, and stated that it presumed this was because the ALJ’s denial of the motion to dismiss did not involve a collateral order or any type of final decision. The ARB cited authority to the effect that denials of FRCP 12(b)(6) motions are ordinarily not subject to appeal under the collateral order doctrine. Such denials are usually not a final decision, but merely a finding in favor of further proceedings. In a footnote, the ARB contrasted an order denying a motion to dismiss on the grounds of sovereign immunity, which is an immunity from trial and not just a defense to liability.
Lindner v. Citibank, N.A., ARB No. 2018-0066, ALJ No. 2018-SOX-00002 (ARB Jan. 28, 2020) (per curiam) (Final Decision and Order)
Casenote(s):
The ARB affirmed the ALJ’s dismissal of Complainant’s SOX complaint where, although Complainant was self-represented, the record supported the ALJ’s dismissal as a sanction for repeatedly failing to engage in discovery and to comply with the ALJ’s procedural orders.
Acosta v. Union Pacific Railroad Co., ARB No. 2018-0020, ALJ No. 2016-FRS-00082 (ARB Jan. 22, 2020) (Decision and Order of Remand)
Casenote(s):
BURDEN OF PROOF; ONCE CASE IS TRIED, COMPLAINANT’S CASE MUST BE ESTABLISHED BY THE PREPONDERENCE OF THE EVIDENCE; PRIMA FACIE CASE BURDEN RELATES TO INVESTIGATORY STAGE AND TO RAISING OF INFERENCE ON CAUSATION SUFFICIENT TO AVOID SUMMARY DECISION; IN INSTANT CASE, ALJ’S USE OF PRIMA FACIE INFERENCE IN DECISION RENDERED AFTER EVIDENTIARY HEARING RESULTED IN FAILURE TO ADEQUATELY CONSIDER DEFENDANT’S LEGITIMATE, NON-DISCRIMINATORY REASON FOR ADVERSE ACTION
CONTRIBUTORY FACTOR CAUSATION; TEMPORAL PROXIMITY ALONE GENERALLY DOES NOT ESTABLISH CAUSATION; FACTFINDER MUST CONSIDER INTERVENING EVENTS; TEMPORAL PROXIMITY MAY HAVE LIMITED CAUSAL PERSUASIVENESS WHERE COMPLAINANT’S JOB IS MOSTLY ABOUT PROTECTED ACTIVITY
CONTRIBUTORY FACTOR CAUSATION AND AFFIRMATIVE DEFENSE; RESPONDENT’S HONEST BELIEF; FRSA ADDRESSES RETALIATION AND NOT WRONGFUL TERMINATION; NOT ENOUGH TO SHOW THAT ADVERSE ACTION WAS WRONG, UNFAIR, OR UNJUST—IT MUST BE SHOWN TO HAVE BEEN RETALIATORY
In Acosta v. Union Pacific Railroad Co., ARB No. 2018-0020, ALJ No. 2016-FRS-00082 (ARB Jan. 22, 2020), the ALJ determined that Defendant violated the FRSA and awarded back pay to Complainant. On appeal, the ARB found that the ALJ erred in his contributing factor and same-action defense analyses. The ARB remanded for further proceedings. The primary problem with the ALJ’s analysis was that it was difficult to determine whether he used the correct preponderance of the evidence standard.
When analyzing contributing factor causation, the ALJ stated that the temporal relationship between Complainant’s protected activity and his termination may be sufficient circumstantial evidence to prove “prima facie” contributing factor causation. In his summation of the contributing factor section of his decision, the ALJ likewise wrote that there was sufficient circumstantial evidence to prove, “prima facie,” that the protected activity was a contributing factor to the adverse action. The ARB explained why this was problematic:
Despite its commonplace occurrence in the post-hearing opinions of ALJs, a “prima facie case” is usually associated with an inference and the investigatory phase of a whistleblower complaint, not proof after hearing. See, e.g., Zinn v. Am. Commercial Lines, ARB No. 10-029, ALJ No. 2009-SOX-025, Slip op. at 10 (ARB Mar. 28, 2012) (explaining the different phases of investigation and proof by a preponderance after an evidentiary hearing); Hoffman v. Nextera Energy, ARB No. 12-062, ALJ No. 2010-ERA-011, slip op. at 12 (ARB Dec. 17, 2013) (prima facie showing irrelevant once case goes to hearing before ALJ). As the Eleventh Circuit has noted, incorporation of the term “prima facie case” into whistleblower adjudication has “bred some confusion, chiefly because the phrase evokes the sprawling body of general employment discrimination law.” Stone & Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1572 (11th Cir. 1997) (citations omitted). At the evidentiary stage after hearing, the complainant is required to prove the elements by a preponderance of the evidence, including proof that protected activity was a contributing factor in the adverse action, 29 C.F.R. § 1982.109(a), and not merely allege circumstances sufficient to establish the four elements, including circumstances sufficient to raise the inference that the protected activity was a contributing factor, 29 C.F.R. § 1982.104(e)(2)(iv). Gale v. Ocean Imaging, ARB No. 98-143, ALJ No. 1997-ERA-038, slip op. at 9 (ARB July 31, 2002) (‘‘However, because this case has been fully tried on the merits, we move beyond the question of whether Complainant has presented a prima facie case to analysis of the evidence on the ultimate question of liability.’’); Palmer v. Canadian Nat’l Ry, IL Cent. R.R. Co., ARB 16-035, ALJ No. 2014-FRS-154, slip op. at 20 n.87 (ARB Jan. 4, 2017) (reissued with dissent) (comparing and contrasting the investigation stage with the burden of proof after hearing); Rookaird, 908 F.3d 461-62 (same).
Slip op. at 6-7.
The ARB reviewed the ALJ’s decision and concluded that he had, in fact, employed a prima facie case analysis when determining that temporal proximity of the protected activity and adverse action raised an inference of causation. The ARB stated that “[g]enerally, temporal proximity is associated with an inference to avoid summary judgment and is not sufficient to prove contributing factor causation by a preponderance of the evidence,” Id. at 8 (citations omitted), and that “[t]he mere circumstance that protected activity precedes an adverse personnel action is not proof of a causal connection between the two.” Id. (citations omitted). Rather, “[p]roof of retaliation for engaging in protected activity under the FRSA generally requires more than the mere temporal relationship that an adverse action followed an instance of protected activity.” Id. The ARB stated that “[t]emporal proximity may be supported by other forms of circumstantial evidence establishing the evidentiary link between the protected act and the adverse action such as inconsistent application of an employer’s policies, pretext, shifting explanations by the employer, or antagonism.” Id. (citations omitted). The ARB also stated that “[t]he insufficiency of temporal proximity as a basis for proving causation is even more apparent when the facts reveal an intervening event occurring between the protected activity and the adverse personnel action.” Id. (citations omitted). The ARB also noted that “[t]he limited causal value of temporal proximity is especially prominent in a whistleblower case where most of a complainant’s job may consist of protected activity.” Id.
The ARB stated that the ALJ’s erroneous use of a prima facie inference was compounded by his errors relating to Defendant’s legitimate, nondiscriminatory reasons for terminating Complainant—the ALJ having substituted his perception of the poor merits of Defendant’s employment decision to find that the reasons were not honestly held and thus pretext for FRSA retaliation. The ARB outlined the ALJ’s reasoning that Complainant was not vicariously liable for safety violations of his crew, and thus discipline of Complainant was pretextual. Finding the ALJ’s reasoning deficient, the ARB wrote:
The ALJ erred in the above analysis by focusing on his perceptions of the merits of Union Pacific’s justifications for terminating Acosta. The question is not whether Acosta violated Union Pacific’s rules, whether he actually was or was not point protector for the entire time, or whether Union Pacific proved that he was not actually in charge of the team’s work as opposed to being a leader of the team. Jones v. U.S. Enrichment Corp., ARB Nos 02-093, 03-010, ALJ No. 2001-ERA-021 (ARB Apr. 30, 2004) (“‘It is not enough . . . to disbelieve the employer: the factfinder must believe the plaintiff’s explanation of intentional discrimination.”) (case citation omitted). The ARB has stated on many occasions that the ALJ should not sit as a super-personnel advocate when viewing the employer’s decisions for an adverse action. Clem v. Computer Sciences Corp., ARB No. 16-096, ALJ Nos 2015-ERA-003, 004 (ARB Sept. 17, 2019); Gale v. Ocean Imaging, ARB No. 98-143, ALJ No. 1997-ERA-038, slip op. at 13 (ARB July 31, 2002) (“Moreover, the thrust of Complainant’s argument is that it was wrong, unfair, or unjust for Respondents not to weigh the grounds that they cited against Complainant’s past performance and find in favor of retaining her, and that therefore Respondent’s rationale was pretext. However, “[I]t is not enough for the plaintiff to show that a reason given for a job action is not just, or fair, or sensible . . . [rather] he must show that the explanation is a ‘phony reason.’” citing Kahn v. U.S. Sec’y of Labor, 64 F.3d 271, 278 (7th Cir. 1995)). The FRSA is not a wrongful termination statute. An employer’s actions can be harsh, faulty, and unjustified, but this does not establish that the employer retaliated for FRSA whistleblowing activity.
Rather, the issue to be decided by the ALJ when evaluating the employer’s reasons for its action is first whether Union Pacific genuinely or honestly believed that Acosta was responsible in whole or in part for the pattern of safety violations or the twenty-two car collision. And if so, whether that belief and not protected activity accounted for its disciplinary actions. Clem, ARB No. 16-096: Stone & Webster, Constr., Inc. v. U.S. Dept. of Labor, 684 F.3d 1127, 1136 (11th Cir. 2012).
We do not say that the believability of the employer’s reasons is not relevant to a whistleblower retaliation claim. If the employer’s reasons were so unbelievable as to be unworthy of credence, this would be evidence in favor of Acosta, either at the contributing factor stage or preventing the employer from establishing its affirmative defense. The ALJ had traditional grounds for establishing pretext for FRSA retaliation such as disparate treatment with similarly situated comparators, a history of retaliation against persons who engage in protected activity, and so on. However, this is not the analysis that the ALJ performed.
Id. at 11-12 (footnote omitted). In sum, the ARB found that these errors required a remand to weigh the evidence under the preponderance of the evidence standard.
Similarly, the ARB found that the errors in the ALJ’s causation analysis carried over to his analysis of Defendant’s affirmative defense as the ALJ again relied upon his perception of the merits of Defendant’s justifications and not its honestly held basis for the termination. The ARB stated that “The ALJ committed error by shifting the issue to be decided from retaliation for FRSA protected activity to the accuracy or merits of Union Pacific’s termination decision.” Id. at 13.
Chettypally v. Premier IT Solutions, Inc., ARB No. 2017-0057, ALJ No. 2017-LCA-00006 (ARB Jan. 21, 2020) (per curiam) (Final Decision and Order)
Casenote(s):
BACK WAGES; FACT THAT BONA FIDE TERMINATION WAS NOT PERFECTED UNTIL H-1B WORKER LEARNED OF HIS DISCHARGE THROUGH USCIS WEBSITE AND UNTIL RESPONDENT REIMBURSED H-1B WORKER BY PAYING WAGE AND HOUR DIVISION (WHD) ASSESSMENT DID NOT ENTITLE H-1B WORKER TO ADDITIONAL BACK PAY BEYOND SCOPE OF WHD ASSESSMENT
In Chettypally v. Premier IT Solutions, Inc., ARB No. 2017-0057, ALJ No. 2017-LCA-00006 (ARB Jan. 21, 2020) (per curiam), the H-1B worker was the Prosecuting Party. He appealed the ALJ’s determination that Respondent effected a bona fide termination of the employment relationship and that upon Respondent payment of the assessment made by the Administrator of the Wage and Hour Division for back wages and travel reimbursements, Respondent had no further financial obligation. The ARB affirmed the ALJ’s decision.
ARB precedent establishes that there are three requirements for a bona fide termination under 20 C.F.R. § 655.731(c)(7)(ii). Here, the Prosecuting Party was not notified of his discharge by Respondent—but Respondent notified USCIS—and the Prosecuting Party then learned of the ensuing revocation of his H-1B status on the USCIS website. The ALJ found that, because the Prosecuting Party had actual notice from USCIS, the fact that Respondent did not inform the Prosecuting Party of his termination did not, in itself, warrant extending the salary award. These circumstances met the first two requirements. As to the third requirement, the ALJ found that Respondent did not pay for the return transportation before the Prosecuting Party’s return to India, but that it had reimbursed those costs by paying the WHD assessment. Thus, the ALJ found that Respondent effectuated a bona fide termination and that the Prosecuting Party was not entitled to further compensation.
The ARB was not persuaded by the Prosecuting Party’s arguments on appeal in which he asked for an additional year’s salary beyond the WHD assessment. First, the Prosecuting Party argued that the ALJ missed the fact that Respondent forced him to leave the country. The ARB discounted this argument because USCIS had cancelled the Prosecuting Party’s H-1B status. Second, the Prosecuting Party contended that Respondent had falsified his resume and forced him to work outside his role. The ARB held that, even if this was true, Respondent’s wage obligation was only for the occupation listed in the LCA. Third, the Prosecuting Party argued that the LCA was approved for three years, so he was entitled to another year of salary. The ARB found that the approval had no bearing on the wages owed. Fourth, the Prosecuting Party argued that the bona fide termination had not been effectuated before his return to India. The ARB rejected this argument, stating:
But as set forth above, the ALJ rationally found no regulatory authority for awarding additional compensation where the Respondent had paid back wages for all productive and nonproductive time continuing through April 21, 2016, when the Prosecuting Party learned of his discharge, to May 13, 2016, when he left the United States and returned to India, and the Prosecuting Party had been fully reimbursed for his return transportation. Accordingly, the ALJ properly concluded that the Respondent has no further financial obligation to the Prosecuting Party.
Slip op. at 5.
BONA FIDE TERMINATION; REQUIREMENT THAT EMPLOYER EXPRESSLY TERMINATE EMPLOYMENT RELATIONSHIP IS MET WHERE H-1B WORKER GAINS ACTUAL NOTICE BY LEARNING OF REVOCATION OF H-1B STATUS ON USCIS WEBSITE
In Chettypally v. Premier IT Solutions, Inc., ARB No. 2017-0057, ALJ No. 2017-LCA-00006 (ARB Jan. 21, 2020) (per curiam), the Prosecuting Party (who was the H-1B worker) was not notified of his discharge by Respondent—but Respondent notified USCIS—and the Prosecuting Party then learned of the ensuing revocation of his H-1B status on the USCIS website. The ALJ found that the fact that Respondent did not inform the Prosecuting Party of his termination did not, in itself, warrant extending the salary award because the Prosecuting Party had actual notice from USCIS. The ARB affirmed.
BONA FIDE TERMINATION; REQUIREMENT OF PAYMENT OF H-1B WORKER’S TRANSPORTATION HOME WHERE EMPLOYER DISMISSES THAT WORKER AHEAD OF THE AUTHORIZED PERIOD OF EMPLOYMENT IS FULFILLED WHERE RESPONDENT PAYS WAGE AND HOUR DIVISION ASSESSMENT THAT INCLUDED REIMBURSEMENT FOR TRAVEL EXPENSES, EVEN THOUGH WORKER HAD ALREADY RETURNED HOME
In Chettypally v. Premier IT Solutions, Inc., ARB No. 2017-0057, ALJ No. 2017-LCA-00006 (ARB Jan. 21, 2020) (per curiam), the Prosecuting Party (who was the H-1B worker) returned to India on March 23, 2016, and filed an LCA complaint with the Wage and Hour Division. WHD investigated, and assessed Respondent for back wages and reimbursement of travel costs. Respondent paid the assessment. The ALJ held that Respondent’s payment of the assessment effectuated the element of a bona fide termination requiring payment of the H-1B transportation home where the employer terminates the employment ahead of the LCA authorized period of employment, and that the Prosecuting Party was not entitled to further compensation. The ARB affirmed, finding that although Respondent had not effectuated a bona fide termination prior to the Prosecuting Party’s return to India, the ALJ properly concluded that there was no regulatory authority for payment of additional compensation where Respondent paid the WHD assessment for paid back wages and reimbursement for travel expenses.
Sivakumar v. Cognizant Technology Solutions Corp., ARB No. 2019-0056, ALJ No. 2018-SOX-00024 (ARB Jan. 21, 2020) (per curiam) (Final Decision and Order)
Casenote(s):
The ARB affirmed the ALJ’s dismissal of the SOX complaint on the ground that the claim was time barred and that equitable tolling was not warranted.
Barboza v. BNSF Railway Co., ARB No. 2018-0076, ALJ No. 2017-FRS-00111 (ARB Jan. 17, 2020) (per curiam) (Order Denying Reconsideration)
Casenote(s):
The ARB denied Complainant’s motion for reconsideration because it concluded that none of the factors supporting reconsideration were satisfied.
Hukman v. U.S. Airways, Inc., ARB No. 2018-0048, ALJ No. 2015-AIR-00003 (ARB Jan. 16, 2020) (Decision and Order of Remand)
Casenote(s):
SUMMARY DECISION; ALJ ERRED BY LIMITING SELF-REPRESENTED COMPLAINANT TO AFFIDAVITS OR SWORN STATEMENTS FOR RESPONSE TO MOTION FOR SUMMARY DECISION; SELF-REPRESENTED COMPLAINANT’S DECLARATION IN BRIEF THAT SHE HAD PERSONAL KNOWLEDGE OF THE FACTUAL CONTENTIONS MAY BE SUFFICIENT TO RAISE A GENUINE ISSUE OF MATERIAL FACT
SUMMARY DECISION; ALJ ERRED BY EXCLUDING CERTAIN OF COMPLAINANT’S EVIDENTIARY SUBMISSIONS ON GROUNDS OF INADMISSIBILTY UNDER FORMAL RULES OF EVIDENCE
In Hukman v. U.S. Airways, Inc., ARB No. 2018-0048, ALJ No. 2015-AIR-00003 (ARB Jan. 16, 2020), the ARB had remanded the case to the ALJ for reconsideration of a grant of summary decision. On remand, the ALJ again granted summary decision, this time finding—based on Defendant’s averments—that Defendant was not on notice of Complainant’s protected activity. The ARB vacated the ALJ’s dismissal.
ALJ may not constrain the methods for opposing a motion for summary decision without explaining how such a limitation serves the ends of justice
The ARB found that the ALJ erred under the circumstances of the case when he directed the self-represented Complainant to respond to Defendant’s motion for summary decision with affidavits or by filing sworn statements—and found that Complainant failed to oppose the motion when she did not submit an affidavit or sworn statement, other than swearing in a motion that she had personal knowledge of the facts, the FAA violations, and all exhibits. The ARB noted that affidavits and sworn statements are not the only means by which a party may respond to a motion for summary decision supported by affidavits and sworn statements. Rather, the regulation at 29 C.F.R. § 18.72(c)(1) states that “other materials” are a permissible method for responding to a motion for summary decision. The ARB noted that an ALJ may modify the permissible means of proof under 29 C.F.R. § 18.10(c), but that only to serve the ends of justice and without prejudice to either party. The ARB wrote:
Under the instant circumstances, neither requirement was satisfied by the ALJ’s order. A self-represented litigant assumes much risk by undertaking litigation and need not be coddled by an ALJ; that being noted, it is seldom in the interests of procedural due process or the “ends of justice” for an ALJ to reduce the available means of proof and increase the trial burden upon a self-represented litigant, whatever the perceived increase in judicial efficiency to be derived from such measures. As such, the ALJ erred as to a matter of law by restricting the ability of Complainant to submit “other materials” in response to Respondent’s motion for summary decision without explaining how the “ends of justice” required such a limitation.
Slip op. at 6-7 (emphasis as in original).
A declaration in a self-represented litigant’s brief asserting personal knowledge can be sufficient to raise a genuine issue of material fact
The ARB also found that Complainant’s statement in the motion swearing that she had personal knowledge of all the matters she had asserted in her documentary filings with the ALJ could be sufficient to raise a genuine issue of material fact, and held that the ALJ erred in refusing to credit it or even consider it because they were not “affidavits” or “sworn statements.” First, the ARB, citing 29 C.F.R. § 18.35(b), noted that when a representative or unrepresented party presents a written motion to the ALJ, the presenter is implicitly certifying that the factual contentions in the motion have evidentiary support. Second, the ARB found that Complainant’s swearing that she had personal knowledge of the matters was “express, reasonable, and apparently good faith effort to comply with the ALJ’s order.” Id. at 7. The ARB concluded that the cumulative legal effect of the two certifications was largely indistinguishable from a declaration made under perjury. The ARB also stated:
For the purposes of summary decision, an ALJ must consider that the self-represented Complainant could testify on the stand at hearing to explain what she submitted and how it supports her case. Her sworn testimony would thus serve to establish occurrence as described in her submissions. Accordingly, a declaration in [a] brief from a pro se complainant can be sufficient to raise a genuine issue of material fact.
Id. at 8. The ARB further stated that summary decision is not to be granted rashly, and that the challenge of reviewing quantities of potentially relevant papers submitted by a self-represented litigant does not obviate an ALJ’s obligation to “look at other materials than those specified in the practice rules.” Id. (emphasis as in original).
Formal rules of evidence do not apply to AIR21 cases; inadmissibility of self-represented complainant’s evidence seldom enforced if that evidence is facially relevant and material
The ARB also found that the ALJ erred in excluding some of Complainant’s proffered evidence because it was not admissible under rules of evidence. The ARB stated that formal rules of evidence to not apply to APA hearings and that formal rules of evidence are expressly rejected under the AIR21 regulations. The ARB stated: “Further, a requirement that evidence be admissible will, as a practical matter, seldom be enforced against a pro se complainant’s evidence if that evidence is facially relevant and material to the issues at hand.” Id. at 9.
Other errors; ARB finds that Complainant plead a prima facie case sufficiently to defeat a motion for summary decision
The ARB found additional errors by the ALJ in ruling on the motion for summary decision, including making findings of fact, failing to view the evidence in the light most favorable to the complainant, failure to analyze several of the elements of an AIR21 complaint. In reviewing the case, the ARB concluded that Complainant plead a prima facie case sufficiently to defeat a motion for summary decision, and directed that the ALJ on remand consider the case on the merits. The ARB also concluded that, although the ALJ had not departed from his impartial role in deciding the case, the nature of the errors required a fresh pair of eyes on remand. The ARB thus directed that the Chief ALJ reassign the case to different ALJ in a different district office.
SUMMARY DECISION; TEMPORAL PROXIMITY IS A FACT INTENSIVE INQUIRY; ARB HAS DECLINED IN THE PAST TO DEFINE OUTER LIMITS OF WHEN THE PROXIMITY IS TOO ATTENTUATED TO ESTABLISH A CAUSAL RELATIONSHIP; IF OTHER ELEMENTS OF PRIMA FACIE CASE ARE MET, “SOME” TEMPORAL PROXIMITY MAY BE SUFFICIENT TO SURVIVE SUMMARY DECISION
In Hukman v. U.S. Airways, Inc., ARB No. 2018-0048, ALJ No. 2015-AIR-00003 (ARB Jan. 16, 2020), the ARB in its de novo review the ALJ’s grant of summary decision accepting as true Complainant’s allegations, found that there was a five month gap between her protected activity and the adverse action taken against her. The ARB then examined the import of that gap in the context of deciding a motion for summary decision:
This temporal gap is not remote enough to say Respondent is entitled to summary decision as a matter of law. Because this length of time is neither so short nor so long as to be definitively close or distant temporal proximity, we will further discuss the issue of temporal proximity.
Temporal proximity is an important part of a case based on circumstantial evidence, often the “most persuasive factor.” Our analysis of an ALJ’s findings and conclusions regarding temporal proximity necessarily depends in large part on the procedural posture of the case. As with any factual issue, we uphold ALJ findings regarding temporal proximity made after hearing if there is substantial evidence in the record to support them. Ascertaining the significance of temporal proximity in a case ‘‘involves more than determining the length of the temporal gap and comparing it to other cases. Previous case law can be used as a guideline to determine some general parameters of strong and weak temporal relationships, but context matters.’’ Thus, the Board has affirmed an ALJ’s finding that that temporal proximity is close—raising an inference of causation—but that there is no causation in the case, if supported by substantial evidence in the record. Likewise, the Board has affirmed an ALJ’s finding that there is weak or no temporal proximity but that causation is nevertheless established, if supported by substantial evidence.
However, when an ALJ renders a summary decision, our review is de novo, and as such the analysis cannot be simply a matter of comparing the length of the temporal gap and deciding that there is causation or that there can be no causation. This is because the determination must be made in the context of the facts of the case at hand. As we have stated before, “[d]etermining what, if any, logical inference may be drawn from the temporal relationship between the protected activity and the unfavorable employment action is not a simple and exact science but requires a ‘fact-intensive’ analysis.” For this reason, we decline to “define the outer limits beyond which a temporal relationship is too attenuated to establish causal relationship.” We have been cautious in affirming summary decision against a complainant when the complainant has provided prima facie evidence of protected activity, adverse action, and some temporal proximity.
Slip op. at 16-17 (footnotes omitted).
Budri v. Firstfleet, Inc., ARB No. 2020-0021, ALJ No. 2019-STA-00071 (ARB Jan. 7, 2020) (per curiam) (Final Decision and Order)
Casenote(s):
[STAA Digest II H 4]
ARB DENIES REVIEW OF ALJ’S DENIAL OF COMPLAINANT’S THIRD STAA COMPLAINT
In Budri v. Firstfleet, Inc., ARB No. 2020-0021, ALJ No. 2019-STA-00071 (ARB Jan. 7, 2020) (per curiam), the ARB exercised its discretion under 29 C.F.R. § 1978.110(b) to deny Complainant’s petition for review of the ALJ’s Decision and Order finding that Complainant’s third administrative complaint relating to his discharge was untimely. The ARB noted that Complainant’s first complaint had been denied for failure to establish a genuine issue of material fact allowing for a conclusion that any protected activity contributed to Complainant’s termination, that this determination had been affirmed the Fifth Circuit, and that the Supreme Court had denied certiorari. The ARB noted that the second complaint, alleging that Respondent had taken additional retaliatory action by reporting negative information to Tenstreet (an employment references service), had been found untimely by an ALJ, that the ARB had affirmed the ALJ’s decision but vacated its decision after it learned that Complainant had filed in district court, and that the district court also dismissed the complaint for lack of jurisdiction and had imposed Rule 11 sanctions on Complainant. The instant action was premised on the fact that Tenstreet continued to maintain the information reported to it by Respondent. The ALJ dismissed the instant complaint because Complainant had known about Tenstreet’s retention of the information and had filed the complaint beyond the statutory limitations period.
Jennings v. McLane Co., Inc., ARB No. 2017-0045, ALJ No. 2017-STA-00009 (ARB Jan. 7, 2020) (Decision and Order of Remand)
Casenote(s):
[STAA Digest VI B 1]
[SOX Digest – Burden of Proof and Production; Adverse Action; Specific Conduct; Constructive Discharge]
CONSTRUCTIVE DISCHARGE; ARB DISSENT, CHARACTERIZED BY MAJORITY AS “COMPELLING” BUT BEYOND PROCEDURAL POSTURE OF THE CASE, ARGUES THAT ARB DECISION IN DIETZ SHOULD BE CLARIFIED TO PROVIDE THAT CONSTRUCTIVE DISCHARGE BASED ON A THEORY THAT TERMINATION WAS IMMINENT REQUIRES A SHOWING OF INTOLERABLE WORK CONDITIONS
In Jennings v. McLane Co., Inc., ARB No. 2017-0045, ALJ No. 2017-STA-00009 (ARB Jan. 7, 2020), the ALJ had granted summary decision on the ground that there was not an issue of material fact on “whether Complainant was subjected to a hostile work environment or that Respondent acted in such a manner that would communicate to Complainant he would be terminated, an action amounting to a constructive discharge. The ALJ relied, in part, on Dietz v. Cypress Semiconductor Corp., ARB No. 15-017, ALJ No. 2014-SOX-002 (March 30, 2016).” Slip op. at 2. Upon review of the record, the ARB found that the ALJ failed to recognize several disputed material facts that could support a finding that Complainant’s resignation was a constructive discharge. The ARB thus vacated the ALJ’s decision and remanded for further proceedings. Because of this procedural posture, the ARB declined to address the dissent’s “compelling” argument that the Dietz decision was based on an erroneous statement of the law of constructive discharge. The dissenting member noted that Dietz quoted a Seventh Circuit decision, EEOC v. Univ. of Chi. Hosps., 276 F.3d 326, 332 (7th Cir. 2002), “for the position that there are two methods of constructive discharge--a showing of intolerable working conditions and quitting under threat of termination--and that the second is independent of the first.” Slip op. at 7. The dissent noted that the Seventh Circuit later “clarified that the ‘second method’ was not independent of the first and that intolerable working conditions is a required component of constructive discharge. Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 332-33 (7th Cir. 2004).” Id. The dissent went on to thoroughly discuss the question, and concluded that “constructive discharge based on a theory that termination was imminent requires a showing of intolerable work conditions.” Id. at 9. The dissent further indicated that with this clarification, he would have affirmed the ALJ’s decision.