Administrative Review Board - January 2021

Bagri v. Erection & Welding Contractors, LLC, ARB No. 2020-0033, ALJ No. 2020-LCA-00003 (ARB Jan. 29, 2021) (per curiam)

REQUEST FOR ALJ HEARING IN LCA CASE; EQUITABLE TOLLING FOUND NOT TO BE WARRANTED WHERE WHD ADMINISTRATOR HAD SERVED THE DETERMINATION LETTER TO COMPLAINANT AT HIS LAST KNOWN ADDRESS, AND COMPLAINANT HAD NOT INFORMED THE ADMINISTRATOR OF A PREFERABLE ADDRESS FOR SERVICE PRIOR TO ISSUANCE OF THE LETTER

In Bagri v. Erection & Welding Contractors, LLC, ARB No. 2020-0033, ALJ No. 2020-LCA-00003 (ARB Jan. 29, 2021) (per curiam), the Prosecuting Party (“Complainant”) was the H-1B worker who filed an LCA complaint alleging that Respondent failed to pay required wages. The Wage and Hour Division (“WHD”) Administrator issued a determination letter assessing back wages, noting that Respondent had paid the assessment in full, and notifying the parties of their right to request an ALJ hearing of the procedures for doing so. The matter was docketed before OALJ. The presiding ALJ found that Complainant had not actually filed a hearing request and that the record showed that Complainant had been sent the determination letter to the address of record. The ALJ thus dismissed the matter.

On appeal, the ARB considered whether equitable tolling applied based on Complainant’s contention that “the determination letter was ‘misplaced,’ and ‘extraordinary circumstances’ prevented him from receiving the determination letter.” Slip op. at 4. The ARB noted that Complainant “acknowledges that the Administrator sent the determination letter to the same address as the back wages check, but Complainant alleges that he had only intended to use that address as a ‘temporary address’ and he would have received the determination letter if it had been sent to his ‘home address.’” Id. The ARB found that this contention resembled the equitable tolling ground of being-prevented-in-some-extraordinary-way-from-making-the-filing. The ARB was not persuaded:

Complainant, however, still cannot meet the burden for equitable tolling to apply because Complainant failed to exercise due diligence to preserve his legal rights and keep the Administrator apprised of his best mailing address. The Administrator’s responsibility is to send the determination letter to the parties’ “last known addresses,” but it is Complainant’s responsibility to inform the Administrator of any changes in the address. Based on the record and arguments on appeal, Complainant’s “temporary address” was his “last known address” and it was where Complainant received the back wages check.

Complainant may have intended to receive future mail at a different address than his “temporary address,” but Complainant had the responsibility of informing the Administrator of that intention. Nothing in the record or Complainant’s arguments indicate that Complainant clarified his intentions to the Administrator or provided the Administrator with a preferable address before the Administrator sent the determination letter.

We find that Complainant’s failure to keep the Administrator informed of his best address constitutes a lack of due diligence. Consequently, Complainant does not meet the burden for equitable tolling to apply.

Id. at 4-5 (footnotes omitted). See 20 C.F.R. § 655.815(a) (requirement that Administrator’s determination be served to the parties’ last known addresses). The ARB observed in a footnote that Complainant had received the back wages check at the “temporary address” on November 13, 2019, that the determination letter had been sent to that same address on November 19, 2019, that Complainant had not provided a preferable address before the determination letter was sent, and thus the “temporary address” was Complainant’s “last known address.”

Johnson v. Norfleet Transportation, ARB No. 2020-0037, ALJ No. 2019-STA-00022 (ARB Jan 29, 2021) (per curiam) (Decision and Order)

[STAA Whistleblower Digest III G]
ALJ’S CREDIBILITY DETERMINATION WILL NOT BE OVERTURNED BY ARB UNLESS IT IS INHERENTLY INCREDIBLE OR PATENTLY UNREASONABLE; ARB DECLINED TO DISTURB ALJ’S CREDIBILITY FINDING WHERE THE RECORD SUPPORTED THE ALJ’S FINDINGS THAT COMPLAINANT’S TESTIMONY WAS CONTRADICTORY AND LACKED EVIDENTIARY SUPPORT

[STAA Digest VI A]
ADVERSE EMPLOYMENT ACTION; ALJ ERRED IN FINDING THAT COMPLAINANT FAILED TO ESTABLISH AN ADVERSE EMPLOYMENT ACTION BASED ON RESPONDENT‘S ENDING ITS WORKING RELATIONSHIP WITH COMPLAINANT BECAUSE HE NO LONGER HAD AN OPERABLE TRACTOR AS REQUIRED BY AN INDEPENDENT CONTRACTOR AGREEMENT; THE ALJ REASONED THAT THIS WAS NOT AN IMPROPER REASON TO END THE RELATIONSHIP; THE ARB CLARIFIED THAT THE “IMPROPER” REASON CIRCUMSTANCE GOES TO CONTRIBUTING FACTOR CAUSATION RATHER THAN WHETHER THE ENDING OF THE WORKING RELATIONSHIP WAS AN ADVERSE EMPLOYMENT ACTION

In Johnson v. Norfleet Transportation, ARB No. 2020-0037, ALJ No. 2019-STA-00022 (ARB Jan 29, 2021) (per curiam), the ARB affirmed the ALJ’s denial of Complainant’s STAA complaint in a very fact-specific decision. The ALJ had concluded that Complainant had not proven by a preponderance of the evidence that he had engaged in a STAA protected refusal to drive. The ALJ cited Complainant’s contradictory testimony, lack of evidence to support Complainant’s allegation, and Complainant’s having continued to drive after Respondent has arranged a repair. The ALJ also found that Complainant failed to prove by a preponderance of the evidence that he suffered an adverse employment action, the employment relationship having ended because Complainant no longer had an operable tractor as required by the Independent Contractor Operating Agreement between Complainant and Respondent.

On appeal, Complainant argued that the ALJ erred in crediting Respondent CEO’s testimony over Complainant’s testimony. The ARB stated it would “not disturb and ALJ’s credibility determination unless it is ‘inherently incredible or patently unreasonable,’” and that based on its review of the record, it did not find a reason to overturn the ALJ’s credibility findings. The ARB also found that substantial evidence supported the ALJ’s finding that Complainant failed to prove by a preponderance of the evidence that he engaged in STAA protected refusal to drive.

The ARB, however, rejected the ALJ’s finding that the ending of the work relationship when Complainant’s tractor became inoperable was not an adverse employment action. The ARB stated that this was an adverse employment action. The ARB stated that the ALJ’s finding that there was no evidence that Respondent had terminated Complainant’s employment for an improper reason, relates to whether an employee’s activity was a contributing factor to the adverse employment action.

Brousil v. BNSF Railway Co., ARB Nos. 2020-0053, -0062, ALJ No. 2014-FRS-00163 (ARB Jan. 27, 2021) (per curiam) (Decision and Order)

AFFIRMATIVE DEFENSE; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDINGS THAT DISCIPLINE WAS BASED ON COMPLAINANT’S BEHAVIOR; THAT RESPONDENT ACTED APPROPRIATELY WITHIN ITS SAFETY AND OPERATING RULES AND ZERO TOLERANCE FOR WORKPLACE RETALIATION; AND THAT RESPONDENT DEMONSTRATED NO RETALIATORY MOTIVE AS TO THE DISCIPLINE

In Brousil v. BNSF Railway Co., ARB Nos. 2020-0053, -0062, ALJ No. 2014-FRS-00163 (ARB Jan. 27, 2021) (per curiam), the ALJ who originally heard the case had found that Respondent established its FRSA affirmative defense, stating that Respondent had probable cause to investigate Complainant’s actions and that Respondent showed leniency in its discipline. The ARB found that the ALJ had not applied the correct legal standard and remanded. On remand, a different ALJ was assigned who dismissed Complainant’s claim, finding that Respondent proved, by clear and convincing evidence, that it would have taken the same adverse action against Complainant absent any of his protected activity. The ARB, applying a substantial evidence standard of review, affirmed, stating:

In deciding this case, the ALJ found that Respondent acted appropriately in accordance with its safety and operating rules and within its “zero tolerance” policy for workplace retaliation. The ALJ found “[a]lthough Complainant was involved in several disciplinary proceedings over a short time period, the disciplinary proceedings were consistent with BNSF safety rules and clearly resulted from Complainant’s conduct over a short time period rather than any motive to harass or intimidate Complainant.” Upon review of BNSF’s safety and operating rules, we find that they support the ALJ’s findings that Respondent’s discipline was based on Complainant’s own behavior throughout the three incidents and would have occurred in the absence of protected activity.

Additionally, the ALJ found that Respondent demonstrated no retaliatory motive in its discipline. The ALJ analyzed factors including whether Respondent’s operating and safety rules were rational, unambiguous, and retaliatory; whether Complainant failed to act in accordance with those rules and instructions from his supervisors; and the import of Complainant’s own admissions, including conceding at his deposition that he departed without an illuminated door indicator light the second time on February 5, 2013. The ALJ also noted that Respondent had given greater discipline and terminated 15 other employees in 2013 for violating the same rules with which Complainant was charged. The ALJ found that the basis and the managerial leniency of the Respondent’s disciplinary decisions were so powerful that it is clear the discipline would have occurred apart from his protected activity, and that “[g]iven the justification for the lenient treatment of Complainant due to his position and tenure with Respondent, I thus find that Respondent has shown by clear and convincing evidence that it would have disciplined Complainant in the same way in the absence of Complainant’s protected activity.” We affirm this conclusion as supported by substantial evidence and in accordance with law.

Accordingly, we find the record supports the ALJ’s factual determination that Respondent proved, by clear and convincing evidence, that it would have taken the same adverse actions against Complainant absent any of his protected activity.

Slip op. at 4-5 (footnotes omitted).

Ho v. State of Hawaii Dept. of Acct. & Gen. Serv., ARB No. 2019-0051, ALJ No. 2017-CAA-00001 (ARB Jan. 27, 2021) (per curiam) (Decision and Order)

MOTIVATING FACTOR CAUSATION IN CAA CASE; IN FACT-SPECIFIC DECISION, ARB SUMMARILY AFFIRMED ALJ’S FINDING THAT THE PREPONDERANCE OF THE EVIDENCE SHOWED THAT COMPLAINANT WAS TERMINATED FOR SENDING DISRUPTIVE FAXES, NOT COMPLYING WITH DIRECTIVES AND WARNINGS, AND NOT FOLLOWING THE CHAIN-OF-COMMAND

In Ho v. State of Hawaii Dept. of Acct. & Gen. Serv., ARB No. 2019-0051, ALJ No. 2017-CAA-00001 (ARB Jan. 27, 2021) (per curiam), Complainant alleged that that his former employer retaliated against him in violation of the Clean Air Act’s whistleblower provisions after he reported asbestos safety concerns at two schools. The ARB summarily affirmed the ALJ’s Decision and Order denying the complaint. The ALJ found that Complainant had not met his burden to prove by a preponderance of the evidence that his protected activity was a motivating factor in Respondent’s disciplinary actions and termination of his employment. The ALJ had found, “based upon the preponderance of the evidence, that Complainant was terminated because he sent disruptive, intimidating, and confrontational faxes to thirty-seven schools, he was insubordinate for not complying with directives and warnings, and he did not follow the chain of command.” Slip op. at 5. The ARB determined, after a review of the record and the parties’ arguments, that the ALJ’s decision was supported by substantial evidence. The ARB found that Complainant’s arguments on appeal, such as that Respondent’s explanations were pretextual and that his faxes were protected by the First Amendment, did not show that the ALJ abused his discretion or committed reversal error.

Pajany v. Capgemini, Inc., ARB No. 2019-0071, ALJ No. 2019-LCA-00015 (ARB Jan. 25, 2021)(per curiam) (Decision and Order)

PETITION FOR ARB REVIEW OF ALJ'S LCA DECISION DISMISSED WHERE SELF-REPRESENTED COMPLAINANT'S PETITION FAILED TO CLEARLY IDENTIFY REASONS WHY THE ALJ ERRED, AND FAILED TO SUBSTANTIATE THOSE REASONS WITH LEGAL AUTHORITY

In Pajany v. Capgemini, Inc., ARB No. 2019-0071, ALJ No. 2019-LCA-00015 (ARB Jan. 25, 2021)(per curiam), Complainant was a U.S. citizen proceeding as a self-represented litigant. He filed a complaint alleging that Respondent committed several violations of the H-1B provisions at 20 C.F.R. § 655.805(a). Respondent filed a motion to dismiss with the ALJ. The ALJ considered converting the motion to dismiss into a motion for summary decision due to Respondent's evidentiary submissions. After reviewing Complainant's responsive materials, however, the ALJ concluded that it was not necessary to consider evidentiary materials outside the pleadings in order to rule on Respondent’s Motion, and the ALJ dismissed the complaint for failure to state a claim that Respondent had violated a provision of 20 C.F.R. § 655.805(a). Complainant petitioned for ARB review.

The ARB dismissed the Petition for Review and affirmed the ALJ's decision pursuant to 20 C.F.R. § 655.845--which requires that the petition “[s]tate the specific reason or reasons why the party petitioning for review believes such decision and order are in error”--and case precedent that requires the petitioning party to substantiate those reasons with legal authority. The ARB noted that, though pro se filings are construed liberally, the ARB must be able to discern cogent arguments. Here, Complainant's petition failed to meet these criteria:

In his Petition for Review, Complainant extensively argues that the ALJ was biased, manipulated his case, fabricated documents, and committed forgery, among other attacks. Complainant fails to support any of these accusations. Construing his pleading liberally, Complainant appears to argue that the ALJ erred because he did not consider fully Complainant’s evidence or appropriately analyze his claims. Complainant asserts that the ALJ issued a “wrong order” and that Complainant’s “348-page document” proves that “Capgemini violated § 655.805(a).” While Complainant’s arguments on appeal repeatedly assert that the ALJ erred, Complainant fails to clearly identify a sufficient basis for reversal. Throughout his arguments on appeal, Complainant fails to clearly identify reasons why the ALJ erred and substantiate those reasons with legal authority. Thus, Complainant’s alleged errors are deemed forfeited or waived.

Slip op. at 3-4 (footnotes omitted).

Davis v. Mexia State Supported Living Center, ARB No. 2019-0077, ALJ No. 2019-FLS-00005 (ARB Jan. 21, 2021) (per curiam) (Decision and Order)

STATE SOVEREIGN IMMUNITY; LIVING CENTER OPERATED BY STATE OF TEXAS HEALTH AND HUMAN SERVICES WAS IMMUNE FROM PETITION BY EMPLOYEE CHALLENGING SPECIAL MINIMUM WAGE UNDER THE FAIR LABOR STANDARDS ACT

In Davis v. Mexia State Supported Living Center, ARB No. 2019-0077, ALJ No. 2019-FLS-00005 (ARB Jan. 21, 2021) (per curiam), Petitioner petitioned for review of the Special Minimum Wage paid to him by Respondent, which was an arm of State of Texas. The ALJ dismissed the petition on the ground that sovereign immunity under the Eleventh Amendment barred the petition. On appeal, the ARB found that the ALJ’s decision was a well-reasoned ruling based on the undisputed facts and the applicable law. The ARB thus affirmed, adopted and attached the ALJ’s decision.

The ALJ explained in his decision that Section 14(c) of the Fair Labor Standard Act allows an employer to pay certain workers with disabilities less than the federal minimum wage after receiving a Department of Labor issued “Certificate Authorizing Special Minimum Wage Rates.” An employee may petition for review of this special minimum wage rate pursuant to 29 U.S.C § 214(c)(5)(A). Petitioner here was one of those employees. Respondent, however, was a State supported living center, and the parties agreed that it was an arm of the State of Texas. The ALJ based his decision dismissing the petition on the U.S. Supreme Court’s decision in Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002) ("FMC"). Petitioner had argued that the FLSA proceedings in the instant case were more analogous to an investigation or an enforcement action than a lawsuit by a· private citizen in Federal court. The ALJ, however, found that “the key inquiry is not whether the procedures used are more or less formal than those in FMC, but whether these proceedings are analogous to a civil lawsuit filed by a private party against a State in federal court. [FMC, supra] at 761 n.12. Although these proceedings are less formal than those described in that case, the core features shared by this administrative adjudication and judicial proceedings lead me to find in the affirmative.” ALJ D&O, slip op. at 4. The ALJ found no evidence that the State of Texas had waived Eleventh Amendment immunity or that Congress had abrogated it. The ALJ noted that the Administrator had the discretion to intervene as a party, which would have allowed the petition to proceed, but that such discretion had not been exercised in the instant case. See Davis v. Mexia State Supported Living Center, ALJ No. 2019-FLS-00005 (ALJ July 24, 2019).

Helgeson v. Soo Line Railroad Co., ARB No. 2019-0054, ALJ No. 2016-FRS-00084 (ARB Jan. 13, 2021) (per curiam) (Decision and Order Approving Settlement Agreement and Dismissing Case with Prejudice)

The ARB approved the parties’ settlement agreement and dismissed the complaint with prejudice.

LaQuey v. UnitedHealth Group, Inc., ARB No. 2017-0060, ALJ No. 2016-SOX-00002 (ARB Jan. 12, 2021) (per curiam) (Order Denying Reconsideration)

RECONSIDERATION; ARB DECLINED TO RECONSIDER BASED ON PURPORTED NEW EVIDENCE WHERE IT RELATED TO CAUSATION, AND THE ARB’S DECISION HAD BEEN GROUNDED SOLELY ON FAILURE OF COMPLAINANT TO ESTABLISH PROTECTED ACTIVITY

The Administrative Review Board (ARB or Board) is authorized to reconsider a decision upon the filing of a motion for reconsideration within a reasonable time of the date on which the decision was issued. We will reconsider our decisions under limited circumstances, which include: (i) material differences in fact or law from those 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, or (iv) failure to consider material facts presented to the court before its decision.

Slip op. at 2 (footnote omitted). In the instant case, Complainant’s petition mostly reiterated arguments which already had been addressed by the ARB, and which did not fall within the circumstances under which the ARB will reconsider its decisions. The ARB also noted that several arguments merely stated, without explanation, that the ALJ’s findings were incorrect. The ARB found that Complainant’s contention that “there is new evidence from Poehling v. UnitedHealth Group that can establish causation” did fit one of the circumstances on which the ARB will reconsider. However, the ARB found that there was no need for the ARB to reconsider because it had affirmed the ALJ’s decision based on the failure of Complainant to establish that he engaged in protected activity, and the ARB had not reached the question of contributory factor causation.

RESPONDENT’S REQUEST FOR ATTORNEY’S FEES AND COSTS AND SANCTIONS BASED ON COMPLAINANT’S CONTINUING REHASHING OF ARGUMENTS PREVIOUSLY REJECTED BY THE ARB AND THE ALJ; ARB DENIED THE REQUEST BECAUSE COMPLAINANT’S ORIGINAL COMPLAINT HAD AN ARGUABLE BASIS IN LAW

In LaQuey v. UnitedHealth Group, Inc., ARB No. 2017-0060, ALJ No. 2016-SOX-00002 (ARB Jan. 12, 2021) (per curiam), Complainant filed a petition with the ARB asking it to reconsider its earlier Decision and Order affirming the ALJ’s findings that Complainant failed to establish that he engaged in protected activity. The ARB denied reconsideration, finding that Complainant’s petition mostly reiterated arguments already addressed by the ARB or presented arguments that merely stated, without explanation, that the ALJ’s findings were incorrect. The ARB found that the one argument that fit the ARB’s criteria for reconsideration was on an issue that was unnecessary to reach.

Respondent’s opposition to the petition had included a motion for attorney’s fees and costs and sanctions against Complainant on the ground that he continued to file frivolous motions presenting the same baseless facts and meritless legal theories that the OALJ and ARB had repeatedly rejected. The ARB denied the request:

The Act permits the Board to award a successful litigant like Respondent a reasonable attorney fee not exceeding $1,000 where a SOX complaint is frivolous or brought in bad faith. We explained in Reddy v. Medquist, Inc., that a complaint is frivolous “if it lacks an arguable basis in law or fact.” A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory while a complaint lacks an arguable basis in fact if the facts alleged are clearly baseless after providing a complainant the opportunity to present additional facts when necessary.

Although nearly all arguments made by Complainant in his Petition lacked an arguable basis in law or fact and have been rejected by the Board, we find that Complainant’s original complaint contained at least an arguable basis in law because it is based on his contention that Respondent retaliated because of SOX-protected activity. Therefore, we also DENY Respondent’s request for attorney’s fees and costs and sanctions against Complainant.

Slip op. at 3-4 (footnotes omitted) (emphasis as in original).

Stolarik v. National Express, LLC, ARB No. 2021-0011, ALJ Nos. 2020-SOX-00036, 2020-STA-00089 (ARB Jan. 7, 2021) (Order Dismissing Complaint)

The ARB dismissed the case where Complainant failed to respond to the ARB’s order to show cause directing Complainant to explain why his appeal should not be dismissed for failing to identify Respondent and its counsel and to show proof of service.

Denneny v. MBDA, Inc., ARB No. 2018-0027, ALJ No. 2016-SOX-00032 (ARB Jan. 8, 2021) (per curiam) (Decision and Order)

PROTECTED ACTIVITY UNDER SOX MUST RELATE TO ONE THE SIX SPECIFICALLY ENUMERATED CATEGORIES SPECIFIED IN SECTION 806; COMPLAINANT DID NOT ESTABLISH THAT COMPLAINTS ABOUT INVESTMENT RETURNS AND ABOUT COMPANY’S ABILITY TO FULFILL A CONTRACT RELATED TO SUCH CATEGORIES; SOX SECTION 806 IS NOT A GENERAL ANTI-RETALIATION STATUTE

PROTECTED ACTIVITY UNDER SOX; COMPLAINANT’S RAISING OF POSSIBILITY THAT INTERIM CEO/BOARD CHAIR COULD HAVE A CONFLICT OF INTEREST IN POSSIBLE PARTNERSHIP NEGOTIATION NOT SHOWN TO BE OBJECTIVELY REASONABLE UNDER THE FACTS OF THE CASE, WHERE – INTER-ALIA - THAT PERSON HAD SELF-DISCLOSED THE POTENTIAL CONFLICT AND COMMITTED TO MANAGE IT; POTENTIAL HARM TO SHAREHOLDERS OF PUBLICLY TRADED SUBCONTRACTOR TO RESPONDENT DID NOT GIVE RISE TO A REASONABLE BELIEF OF SHAREHOLDER FRAUD WHERE IT WAS BASED ON SEVERAL SPECULATIVE CONTINGENCIES

In Denneny v. MBDA, Inc., ARB No. 2018-0027, ALJ No. 2016-SOX-00032 (ARB Jan. 8, 2021) (per curiam), the ARB affirmed the ALJ’s Decision and Order granting Respondent’s motion for summary decision and dismissing Complainant’s SOX complaint.

Although the ALJ had granted the motion on the ground that MBDA was not a covered employer under SOX, and much of the briefing on appeal was devoted to this issue, the ARB declined to resolve that dispute because it affirmed the ALJ’s alternative conclusion that Complainant had not create a genuine issue of material dispute that he in engaged in conduct protected by SOX.

The ARB began with a summary of the standards for demonstrating SOX protected activity:

To demonstrate that he engaged in SOX-protected activity, a complainant must prove that (1) he subjectively believed that the conduct complained of constituted a violation of one of the laws listed in Section 806, and (2) a reasonable person of similar experience, training, and factual knowledge would objectively believe that a violation had occurred. A complainant need not cite a specific code provision he believes was violated to engage in protected activity, but nonetheless has to complain or provide information about conduct that he reasonably believes concerns one of the six specifically enumerated categories in the statute: mail fraud, bank fraud, wire fraud, securities fraud, any provision of Federal law relating to fraud against shareholders, or any rule or regulation of the SEC. General assertions of wrongdoing untethered from these enumerated categories are not protected, nor are general inquiries. Moreover, although a complainant need not prove an actual violation of law, he must do more than speculate, argue theoretical scenarios, or share mere beliefs that some corporate activity is wrong and may theoretically affect the corporation’s financial statements and its shareholders.

Slip op. at 10 (footnotes omitted).

In the instant case, Complainant asserted three types of protected activity in the form of complaints to MBDA board members and executives.

The first asserted protected activity concerned Complainant’s complaints that MBDA’s “SABER” munitions program had a limited customer interest and was not a good investment. The ARB agreed with the ALJ that this was not protected activity, explaining:

Even if public companies were involved in the sale or development of SABER, Denneny’s concerns about SABER’s viability, customer interest, and investment returns are not sufficiently connected to one of the six enumerated categories in Section 806. Denneny vaguely asserts on appeal that he believed he was reporting “fraud that could impact a publicly traded company.” However, he has not explained why he believed his complaints about the product’s viability or the company’s wasteful spending could have amounted to fraud on another company’s shareholders, nor has he explained why such a belief would have been objectively reasonable.

Id. at 11 (footnotes omitted).

The second asserted protected activity involved Complainant’s revealing at a board meeting that a lease from a facility needed to manufacture certain missiles had been terminated, jeopardizing MBDA’s ability to fulfill its contract with the U.S. government. The ARB agreed with the ALJ that Complainant had not alleged that he reasonably believed that one of the laws enumerated in SOX was violated:

Denneny alleged only that he believed the termination of the Redstone Arsenal lease could cause MBDA to breach its contract with Boeing, thereby potentially affecting Boeing’s ability to fulfill its contract with the Navy. Denneny has not shown on appeal that he objectively believed that the alleged withholding of information regarding the Redstone lease from MBDA’s board or the impact the loss of the lease had on MBDA’s ability to fulfill its contract with Boeing constituted mail, wire, bank, securities, or shareholder fraud, or violated any rule or regulation of the SEC. As we have recently reiterated, SOX is not a general anti-retaliation statute. Thus, we agree with the ALJ that Denneny failed to create a genuine issue that his concerns about the Redstone lease were protected by SOX.

Id. at 12 (footnote omitted).

The third asserted protected activity concerned Complainant’s raising of a potential conflict of interest of MBDA’s interim CEO and board chair in regard to the fact that he was also serving on a board of directors with which MBDA was in discussions with to possibly provide a missile motor. The ARB again affirmed the ALJ’s finding that this was not protected activity.

We agree with the ALJ that SOX does not protect Denneny’s concerns about Webster’s potential conflict of interest. Although Denneny asserts that he feared Webster’s conflict could ultimately result in fraud against Boeing’s shareholders, Denneny failed to create a genuine dispute that his fear was objectively reasonable.

Denneny admits that by sending the April 21, 2015 email, he was merely attempting to get ahead of a potential problem regarding Webster’s dual membership before any developed. Denneny does not suggest there was any evidence that Webster, who had previously self-disclosed his role with Orbital ATK and committed to managing any conflict, had taken any efforts to steer MBDA into partnering with Orbital ATK on Brimstone II missiles. Assuming those efforts might have occurred, Denneny also failed to allege that there was any connection between such efforts and harm or fraud on Boeing’s shareholders. Viewing the facts in the light most favorable to Denneny, Denneny was merely concerned that Webster’s dual membership might cause him to improperly influence MBDA’s actions and might allow him to steer MBDA to choose an inferior motor, which might negatively affect Boeing. The possibility that a challenged practice could take place, and that it could potentially adversely affect the financial condition of a publicly traded company, is not sufficient to establish an objectively reasonable belief that shareholder fraud was occurring or was likely to occur. The potential harm to Boeing’s shareholders is based on several speculative contingencies and too remote to give rise to a reasonable belief of shareholder fraud.

Id. at 13 (footnotes omitted).

Whiting-Turner/Walsh Joint Venture, ARB Nos. 2018-0008, -0010, -0012. -0013, ALJ No. 2015-DBA-00014 (ARB Jan. 8, 2021) (Order Granting Dismissal)

Case dismissed based on settlement of the parties.

Forrand v. FedEx Express, ARB No. 2019-0041, ALJ No. 2017-AIR-00016 (ARB Jan. 4, 2021) (per curiam) (Decision and Order)

PROTECTED ACTIVITY; ARB SUMMARIZES CURRENT STATE OF THE LAW ON WHAT CONSTITUTES PROTECTED ACTIVITY UNDER AIR21; INFORMATION PROVIDED MUST BE SPECIFIC AS TO AIRCRAFT SAFETY; AIR21 IS NOT A GENERAL REMEDY FOR EMPLOYMENT GRIEVANCES

PROTECTED ACTIVITY; WHERE EMPLOYER ACCEPTED COMPLAINANT’S SUGGESTION TO IMPROVE CLARITY OF POLICY ON AVOIDING DAMAGE TO PLANE DOORS, THE ARB FOUND THAT THE SUBJECTIVE AND OBJECTIVE REASONABLENESS OF COMPLAINANT’S BELIEF WAS UNDISPUTED

PROTECTED ACTIVITY; COMPLAINANT’S PRINTING OF DOCUMENTS TO PROVIDE TO OSHA WAS PROTECTED ACTIVITY UNDER AIR21’S ELEMENT OF “ABOUT TO PROVIDE” ANY INFORMATION ABOUT AN ALLEGED VIOLATION OF FEDERAL LAW RELATED TO AIR SAFETY

In Forrand v. FedEx Express, ARB No. 2019-0041, ALJ No. 2017-AIR-00016 (ARB Jan. 4, 2021) (per curiam), the ARB affirmed the ALJ’s Decision and Order denying Complainant’s AIR21 retaliation claim in a per curiam decision in which the ARB limited its discussion to Complainant’s arguments on appeal and to clarification of certain of the ALJ’s rulings.

In regard to protected activity, the ARB initially summarized the legal standard under AIR21:

Protected activity under AIR 21 has two elements: (1) the information that the complainant provides must involve a purported violation of a regulation, order, or standard of the FAA or federal law relating to air carrier safety, though the complainant need not prove an actual violation; and (2) the complainant’s belief that a violation occurred must be subjectively held and also objectively reasonable. The information provided to the employer or federal government must be specific in relation to a given practice, condition, directive, or event that affects aircraft safety. A complainant’s belief is objectively reasonable if it is one that a person of similar training and experience would hold.

Slip op. at 3-4 (footnotes omitted). In regard to the reasonableness of the complainant’s belief, the ARB noted “the obvious fact that the text of the statute directs us to consider whether the safety of the flying public is, or might be, enhanced by the whistleblower’s behavior. Air 21 is not a general remedy for employment grievances unrelated to air safety.” Id. at 3, n.8.

The ALJ found that Complainant established one instance of protected activity. The ARB, however, found three instances. The ARB only discussed the two additional instances in its decision.

First, the ARB noted that—although the ALJ had discussed an incident in which Complainant had e-mailed his supervisor about the wording of a policy statement on avoiding damage to plane doors by moveable elevators that resulted in the policy being modified to improve clarity based on Complainant’s feedback—the ALJ had not considered whether this was protected activity. The ARB determined that “Complainant’s e-mail to his supervisor about the policy is protected activity because it relates to protecting the airplane’s doors and, obviously, to air safety. The Complainant’s subjective belief and objective reasonableness of that belief are undisputed because Respondent accepted Complainant’s suggestion and took action in response to it.” Id. at 4.

Second, the ALJ found that Complainant’s printing of documents at one of Respondent’s facilities for the purpose of supplying them to OSHA was “not protected activity because Complainant’s ‘individual steps’ of printing the documents were not discreet protected activity under the Act.” Id. at 4-5 (footnote omitted). The ARB, however, found that this was protected activity under the “about to provide” element of AIR21:

Th[e ALJ’s finding] is correct as far as it goes, but AIR 21 protects an employee from retaliation when the employee is “about to provide” any information about an alleged violation of Federal law related to air safety. The Board has held that “an employee engages in protected activity if he attempts to provide information of retaliation that violates AIR 21.” In this instance, Complainant printed documents. In printing the specific documents he did, Complainant was “about to provide” relevant information for his AIR 21 complaint, which concerned an alleged violation of Federal law related to air safety. Complainant therefore engaged in protected activity.

Id. at 5 (footnotes omitted). The ARB noted, however, that this was harmless error by the ALJ because Complainant had not been subjected to retaliation.

ADVERSE ACTION; ARB SUMMARIZES CURRENT STATE OF THE LAW ON WHAT CONSTITUTES ADVERSE ACTION UNDER AIR21

ADVERSE ACTION; SUPERVISOR’S ALLEGED STATEMENT TO BE CAREFUL BECAUSE “THEY ARE WATCHING YOU” FOUND NOT TO ESTABLISH ADVERSE ACTION UNDER THE FACTS OF THE CASE WHERE RESPONDENT MAINTAINED THAT THE COMMENT RELATED TO THE FACT THAT COMPLAINANT WAS WEARING A HAT, MAKING IT DIFFICULT TO DETERMINE WHETHER HE WAS WEARING THE CORRECT SAFETY HEAD GEAR, AND WHERE ANOTHER MANAGER HAD ASSURED COMPLAINANT THAT HE WAS NOT UNDER SURVEILLANCE

In regard to adverse action, the ARB initially summarized the legal standard under AIR21:

AIR 21 prohibits an employer from discharging or otherwise discriminating “against an employee with respect to compensation, terms, conditions, or privileges of employment” for engaging in protected conduct. It is illegal “to intimidate, threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate against any employee” who engages in protected activity.” The Board has said that adverse action may also include firing, failure to hire or promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. An adverse action is “more than trivial” when it is “materially adverse” so as to “dissuad[e] a reasonable worker” from protected activity.

Slip op. at 5 (footnotes omitted). The ARB affirmed the ALJ’s finding that Complainant suffered adverse actions as supported by substantial evidence and consistent with the law. The ARB, however, addressed an additional allegation by Complainant that Respondent surveilled him or threated him when a supervisor told him to “be careful, they are watching you.” The ALJ had not addressed this allegation specifically in his opinion as adverse action, although he had made credibility findings on the relevant events. The ARB found that the record did not establish that this was protected activity, stating:

Respondent claims it was difficult to tell if Complainant was wearing the correct safety gear on his head because he was wearing a hat, which prompted the comment. Subsequently, Complainant met with another manager about the conversation and said he felt threatened. The manager assured Complainant that he was not under surveillance. Afterwards, Complainant filed a workplace violence complaint. We find that a supervisor’s comment of this kind, without more, is not an adverse action.

Id. at 5-6.

HOSTILE WORK ENVIRONMENT; ARB SUMMARIZES CURRENT STATE OF THE LAW ON WHAT CONSTITUTES A HOSTILE WORK ENVIRONMENT UNDER AIR21; CLAIM MUST ESTABLISH INTENTIONAL HARASSMENT RELATED TO PROTECTED ACTIVITY, WHICH IS SUFFICIENTLY SEVERE OR PERVASIVE AS TO ALTER THE CONDITIONS OF EMPLOYMENT, AND TO CREATE AN ABUSIVE WORKING ENVIRONMENT SUCH THAT IT WOULD HAVE DETRIMENTALLY AFFECTED A REASONABLE PERSON AND DID DETRIMENTALLY AFFECT COMPLAINANT

HOSTILE WORK ENVIRONMENT; ALJ SHOULD HAVE ACKNOWLEDGED AND CONSIDERED ALL INCIDENTS ALLEGED BY COMPLAINANT AS SHOWING A HOSTILE WORK ENVIRONMENT—BUT—FAILURE TO DO SO WAS HARMLESS ERROR WHERE SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S CONCLUSION THAT COMPLAINANT FAILED TO ALLEGE SUFFICIENTLY SEVERE AND PERVASIVE HARASSMENT

In regard to hostile work environment, the ARB initially summarized the legal standard under AIR21:

Our final issue is Complainant’s hostile work environment claim. To prevail, Complainant must prove that: 1) he engaged in protected activity; 2) he suffered intentional harassment related to that activity; 3) the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and to create an abusive working environment; and 4) the harassment would have detrimentally affected a reasonable person and did detrimentally affect the complainant.

Proving a hostile work environment is a high bar. Discourtesy or rudeness is not harassment, nor are the ordinary tribulations of the workplace, such as sporadic use of abusive language, joking about protected status or activity, and occasional teasing. Relevant circumstances to consider in assessing whether conduct amounts to a hostile work environment include “the frequency of the discriminatory conduct; its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.”

Slip op. at 6 (footnotes omitted).

In his decision, the ALJ had addressed the circumstances surrounding Complainant’s earlier AIR21 complaints and other ongoing incidents detailed in the AIR21 complaint. The ARB also noted a few “smaller events” alleged by Complainant as contributing to a harassing environment, such as—among other examples—a discussion about a possible transfer to a department where Complainant had a negative history, and a supervisor’s offer to drive Complainant home rather than provide a cab ride when Complainant had been upset. The ARB noted: “In sum, he argues his employer has retaliated against him in ways both large and small, and that the alleged retaliation is sufficiently pervasive to create a hostile work environment.” Id. at 7. The ARB determined that the ALJ should have acknowledged and considered the “smaller incidents,” but that the failure to do so was harmless error. The ARB stated:

The ALJ correctly held that Complainant failed to prove that he was subject to a hostile work environment. He held that Complainant only satisfied the first prong—engaging in protected activity—of the four prong test. However, the ALJ failed to specifically acknowledge the smaller incidents Complainant alleged. Because a hostile work environment is an alternative theory of relief, those small incidents should be noted and given consideration. Despite a less than complete analysis, the ALJ’s conclusion is sound—Complainant makes no allegations that amount to a sufficiently severe and pervasive harassment. The ALJ’s conclusion here, as elsewhere, is supported by substantial evidence and is consistent with the law.

Id. (footnote omitted).