Administrative Review Board Decisions
The following case summaries were created by the Administrative Review Board staff.
Adams v. Duke Energy Carolinas, ARB No. 2022-0043, ALJ No. 2021-ERA-00005 (ARB Jan. 31, 2024) (Decision and Order of Remand)
SUMMARY DECISION; CONTRIBUTING FACTOR; ALJ'S ANALYSIS IGNORED MATERIAL FACTUAL DISPUTES IN THE RECORD AND FAILED TO VIEW EVIDENCE IN THE LIGHT MOST FAVORABLE TO COMPLAINANT
In Adams v. Duke Energy Carolinas, ARB No. 2022-0043, ALJ No. 2021-ERA-00005 (ARB Jan. 31, 2024), the ARB vacated the ALJ's Order Granting Respondent's Motion for Summary Decision, and remanded the case back to the ALJ for further proceedings. Respondent hired Complainant into an entry level position, and she ultimately obtained the position of Quality Control (QC) Manager. As QC Manager, Complainant supervised six QC supervisors in charge of each of Respondent's six nuclear sites.
In April of 2018, Complainant and her direct supervisor, Respondent's General Manager of Nuclear Oversight (GM NOS), attended a "kickoff" meeting at the Harris nuclear site. During the meeting, contract workers, who had just completed an outage at the Brunswick nuclear site, complained to Complainant and the GM NOS that the Brunswick QC Supervisor discouraged them from writing nuclear condition reports. Afterwards, the Harris QC Supervisor submitted a complaint to Respondent's Employee Concerns Program (ECP) concerning the Brunswick QC Supervisor. ECP opened an investigation into the Brunswick QC Supervisor's alleged conduct.
In September of 2018, the ECP completed its investigation of the Brunswick QC Supervisor. The investigation did not substantiate allegations that the Brunswick QC Supervisor's behavior or communications undermined QC independence. The investigative report identified five corrective actions, none of which recommended that management determine whether the position of a QC Supervisor was an appropriate job assignment for the Brunswick QC Supervisor.
In the fall of 2018, during a nucl ear site outage at Robinson, the ECP received an anonymous complaint alleging that the Brunswick QC Supervisor was discouraging inspectors from writing nuclear condition reports and that there was a lack of independence between the QC and maintenance departments. The ECP transferred the complaint to Complainant to investigate. On September 20, 2018, Complainant sought guidance from the GM NOS. The ALJ found, for purposes of ruling on Respondent's motion for summary decision, that this was Complainant's first ERA-protected act. Complainant pushed for a corrective action and possibly a second investigation, but the GM NOS instructed her to transfer the concern the contractor's ECP representative.
Around the same time, the Harris QC Supervisor and Robinson QC Supervisor filed complaints with the ECP alleging that Complainant created a chilled work environment, displayed poor leadership, micromanaged the QC organization, and took adverse actions against individuals who challenged her. The ECP formed an independent investigation team to investigate the allegations against Complainant.
In late 2018, the QC Organization underwent a reorganization that required a workforce reduction of 10 individuals, and Complainant was responsible for rating the QC supervisors to decide who would be removed from their position. Complainant ranked the Harris QC Supervisor and Robinson QC Supervisor as the lowest performing QC supervisors. Ultimately, both were deselected. After their deselection, both filed complaints alleging that Complainant retaliated against them for challenging her and for raising concerns about her to the ECP. As a result, the ECP independent investigation into Complainant was expanded to consider these allegations.
In February of 2019, Complainant met with the GM NOS to discuss her annual performance appraisal. Before writing the appraisal, the GM NOS consulted human resources about how to handle the subject of the ongoing investigation of Complainant. He was instructed by human resources to include language in Complainant's appraisal that characterized the concerns that were unfolding from the then-incomplete investigation.
In March of 2019, Complainant attended a kickoff meeting at the McGuire nuclear site, which followed an outage at the Brunswick nuclear site. At the meeting, contract workers advised Complainant that nothing had changed with the Brunswick QC Supervisor. Complainant asked the contractor's team leader to survey the contract workers and the next day the team leader provided Complainant with a list of concerns about the Brunswick QC Supervisor based on the survey results. Complainant advised the GM NOS of these additional complaints. The ALJ found, for purposes of ruling on Respondent's motion for summary decision, that this was Complainant's second ERA-protected act. The GM NOS agreed with Complainant's recommendation that the Brunswick QC Supervisor's conduct required corrective action. With his help, Complainant began working with human resources to deliver a corrective action.
On June 1, 2019, the GM NOS transferred positions, and a new GM NOS was hired. After he started, the new GM NOS spoke with Complainant about the status of the pending corrective action for the Brunswick QC Supervisor. Complainant advised that she was waiting for guidance from human resources. The new GM NOS questioned Complainant on the timeliness of the corrective action and told her that her actions were untimely. The new GM NOS then worked with Complainant to obtain final approval for the corrective action, and on June 19, 2019, Complainant and the new GM NOS delivered the corrective action to the Brunswick QC Supervisor. The ALJ found, for purposes of ruling on Respondent's motion for summary decision, that this was Complainant's third ERA-protected act.
In September of 2019, the ECP completed the investigation into the allegations against Complainant. The investigative report found that there was a perception that Complainant would take adverse actions against individuals who crossed her, and that this perception was strengthened following the deselection of the Harris QC Supervisor and Robinson QC Supervisor, but the investigative report found no evidence that they were deselected in retaliation for challenging Complainant, or for bringing their concerns to the ECP. The investigative report also found that 50% of the interviewees expressed hesitancy in raising non-nuclear safety concerns to Complainant. The investigative report identified six corrective actions, including considering whether this was an appropriate job assignment for her.
After reviewing the investigative report, including the finding that 50% of the interviewees expressed hesitancy in raising non-nuclear safety concerns to Complainant, the new GM NOS decided to reassign Complainant to a non-supervisory developmental position. He submitted the proposed reassignment to Respondent's Employee Review Board (ERB), and the ERB recommended reassignment based on the findings of the investigation, despite noting that many of the allegations raised against Complainant could not be substantiated.
On November 6, 2019, the new GM NOS informed Complainant of his decision to reassign her. Complainant testified that the new GM NOS told her that she was being reassigned because of her failure to timely correct the Brunswick QC Supervisor, the results of the investigation, and a pending lawsuit filed by the Harris QC Supervisor and Robinson QC Supervisor. The new GM NOS maintained that he did not recall any reference to the pending corrective action against the Brunswick QC Supervisor during this conversation and denied that the corrective action played a role in his decision to reassign her.
In vacating the ALJ's order granting summary decision, the ARB found that there were factual disputes and questions arising from the record evidence that were material to the resolution of this case, and the ALJ ignored these material factual disputes in granting summary decision. Specifically, the ARB noted that there was a material question as to whether the new GM NOS had knowledge of Complainant's first two protected acts, which occurred prior to his tenure, when he made the decision to reassign Complainant. The ARB found that knowledge of these two acts could bear on whether Complainant's protected acts contributed to his decision to transfer her, and "[o]n summary decision, viewing this evidence in a light most favorable to Complainant, this dispute alone raises a genuine issue of material fact as to whether Complainant's protected activity was a contributing factor to her reassignment, in violation of the ERA."
The ARB also found that there was a material question regarding whether the new GM NOS told Complainant her protected activity was a consideration in his decision to reassign her. The ARB noted that Complainant testified that when she was told of her reassignment, the new GM NOS provided multiple reasons for why he was reassigning her: her failure to timely correct the Brunswick QC Supervisor, the results of the ECP investigation, and the lawsuit filed by the Harris QC Supervisor and Robinson QC Supervisor. The ARB found that when viewing Complainant's testimony in a light most favorable to her, the new GM NOS considered her protected acts—acts relating to the development and the deliverance of the corrective action against the Brunswick QC Supervisor—when deciding to reassign Complainant.
SUMMARY DECISION; CONTRIBUTING FACTOR; ALJ FAILED TO VIEW THE EVIDENCE PRESENTED IN THE LIGHT MOST FAVORABLE TO THE NONMOVING PARTY; CONSIDERATION OF TEMPORAL PROXIMITY WITHIN THE CONTEXT OF OTHER CIRCUMSTANTIAL EVIDENCE
The ARB also found that the ALJ failed to properly evaluate the temporal proximity evidence presented by Complainant within the context of all her protected acts and other circumstantial evidence of causation in a light most favorable to her. The ARB noted that the ALJ's temporal proximity analysis relied solely on the four-and-a-half-month period from Complainant's last protected act to when she was informed of her reassignment, but did not consider that the initiation of the investigation into Complainant occurred within one month following her first protected act.
The ARB found that Complainant also presented other circumstantial evidence of causation that raised a genuine issue of material fact as to whether her protected activity contributed to the investigation and her reassignment: the first GM NOS was aware of her first two protected acts, he considered the incomplete investigation into Complainant to add adverse language to her annual performance appraisal, and Complainant testified that when they discussed her appraisal he told her she was going to be transferred or lose her job.
The ARB also noted evidence that Respondent inconsistently disciplined the Brunswick QC Supervisor (who did not engage in protected activity) and Complainant, although the results of his investigation were similar to the results of her investigation; and the new GM NOS relied on a percentage in the investigative report to reassign her but this percentage was skewed and did not accurately reflect the number of interviewees who felt hesitant to raise non-nuclear safety concerns.
Lastly, the ARB found that the ALJ improperly weighed the evidence and made findings of fact as if he was resolving the case on the merits based on the record before him in the absence of a hearing. The ARB found that the ALJ impermissibly weighed the evidence that Respondent submitted as to its legitimate business decision for reassigning Complainant to determine which party he believed (finding that Respondent's version of events was true). The ARB noted that weighing the evidence at the summary decision stage of a case is not appropriate, and in doing so, the ALJ overlooked the disputed nature of the evidence supporting causation.
Jones v. Schwan's Home Service, ARB No. 2023-0023, ALJ No. 2019-STA-00040 (ARB Jan. 31, 2024) (Decision and Order Approving Settlement and Dismissing with Prejudice)
VOLUNTARY DISMISSAL; APPROVAL OF SETTLEMENT
In Jones v. Schwan's Home Service, ARB No. 2023-0023, ALJ No. 2019-STA-00040 (ARB Jan. 31, 2024), Complainant filed a complaint with the United States Department of Labor's Occupational Safety and Health Administration alleging that Respondent violated the STAA by discriminating against him and terminating his employment. An ALJ issued a Decision and Order awarding Complainant back pay, front pay, emotional distress damages, punitive damages, attorney's fees and costs, and reinstatement, among other things. Respondent filed a Petition for Review of the ALJ's decision with the ARB.
While the case was pending with the ARB, Complainant filed a Motion to Approve Settlement and Dismiss Proceeding with Prejudice—which included a copy of the proposed settlement—and requested the Board approve the settlement and dismiss these proceedings with prejudice.
The ARB approved the parties' settlement agreement as fair, adequate, and reasonable, and not in contravention of the public interest. The ARB noted that this determination was restricted only to the STAA case over which it has jurisdiction. Accordingly, the ARB dismissed the appeal.
The Estate of Daniel A. Ayres by Kimberly Ayres, Administrator v. Weatherford U.S., L.P., ARB Nos. 2018-0006, -0074, (ARB Jan. 11, 2024) (Decision and Order Awarding Attorney Fees And Costs)
ATTORNEY FEE ORDER; LODESTAR ANALYSIS; BLOCK BILLING; INTEREST ENHANCEMENT
In The Estate of Daniel A. Ayres by Kimberly Ayres, Administrator v. Weatherford U.S., L.P., ARB Nos. 2018-0006, -0074 (ARB Jan. 11, 2024), the ARB addressed the merits of a request by Complainant for an additional award of attorney fees and costs for work performed before the Sixth Circuit. The ARB denied the request for attorney fees and costs Complainant generated in filing an unsuccessful petition to reinstate punitive damages and further denied Complainant's request for an interest enhancement on its attorney fees and costs. However, the ARB otherwise awarded all remaining attorney fees and costs at issue.
Complainant filed a complaint with OSHA alleging that the Respondent violated the STAA by reducing his hours of work and by terminating his employment in retaliation for raising safety concerns. OSHA dismissed the complaint and Complainant requested a hearing before the OALJ. Following that hearing, an ALJ concluded in September 2017 that the Respondent violated the STAA, and awarded back pay, compensatory damages, and punitive damages. The ALJ also issued an Attorney Fee Order awarding $36,219.01 for fees incurred at a $350 hourly rate in addition to the other costs generated in front of the ALJ.
On appeal, the ARB affirmed the statutory violation and the resulting order for back pay, compensatory damages for emotional distress, and attorney fees and costs. The ARB, however, reversed the ALJ's award of punitive damages. On January 22, 2021, the ARB issued an order awarding an additional $12,670.00 for attorney fees incurred for work performed in the ARB proceeding, at the same hourly rate as applied by the ALJ, plus costs.
Both parties appealed the ARB decision to the Sixth Circuit; the Respondent sought to overturn the ARB decision in its entirety while Complainant sought reinstatement of the ALJ's punitive damages award. The Sixth Circuit consolidated the appeals and, in May 2023, denied them both outright—wholly affirming the previous ALJ and ARB attorney fee awards in the process.
Following the Sixth Circuit's ruling, Complainant filed a motion to remand the case to the ARB to determine the attorney fees and costs incurred before the Circuit, or in the alternative, for an award of attorney fees from the Circuit itself as costs pursuant to Federal Rule of Appellate Procedure 39 and Sixth Circuit I.O.P. 39. Respondent did not contest Complainant's request to remand the matter to the ARB. The Sixth Circuit denied the motion under the federal rule and its internal rule of procedure, opting instead to remand the case to the ARB to determine "the merits of the Estate's request for an additional award of attorney fees" incurred on appeal.
Complainant filed before the ARB a Supplemental Petition For an Award of Attorney Fees and Costs incurred before the Sixth Circuit requesting an additional fee award and costs for the work performed before the Circuit. Complainant also requested a pre-judgment interest enhancement from the date of the fee petitions filed, and a post-judgment interest enhancement from the date of the ARB's decisions, both at the statutory rate found at 26 U.S.C. § 6621(a)(2).
Respondent filed an opposition, in which it solely argued fees should not be awarded for Complainant's unsuccessful Sixth Circuit appeal and for an unsuccessful motion to dismiss Respondent's appeal. Respondent also argued that Complainant's time entries exhibited block billing. In its Reply, Complainant argued it was entitled to fees incurred in litigating Complainant's appeal and its motion to dismiss given its success on seven out of eight issues before the Sixth Circuit.
The ARB determined that the lodestar analysis applied to cases where a complainant succeeded on only some of their claims for relief and thus, analyzed whether Complainant's attorney fees and costs were reasonably incurred in defending the resulting agency order from the Sixth Circuit. The ARB found that while Complainant was unsuccessful on its motion to dismiss, it shared a common core of facts with its other pleadings and therefore was reasonably incurred in the course of litigation. In contrast, the ARB found that because Complainant's appeal to the Sixth Circuit sought to reinstate the punitive damages award, it warranted entirely different relief than what Complainant would have gained by defending Respondent's appeal and thus, did not share the common core of facts to grant attorney fees and costs. Thus, the ARB denied Complainant's request for attorney fees and costs related to its unsuccessful Sixth Circuit appeal.
Furthermore, upon review of Complainant's counsel's billing entries, the ARB found the records to be contemporaneous accounts of counsel's time and work and therefore, concluded that the entries were sufficiently documented to support their reasonableness.
Lastly, Complainant argued that the ARB should order Respondent to pay pre-judgment interest from the date of the fee petitions filed in this matter, and post-judgment interest from the date of the ARB decision. The ARB found that the while the applicable provision of the STAA permits the Secretary's discretionary assessment of fees and costs, that provision does not include interest. The ARB found that the facts of this case did not warrant any further enhancement as the fees at issue on remand from the Sixth Circuit were all incurred in a two-month period—a time period that does not suggest any intrinsic delay. Thus, the ARB denied Complainant's request for pre- and post-judgment judgment interest. In sum, the ARB awarded Complainant $48,580.00 in attorney fees and $505.08 in costs for its appeal before the Sixth Circuit.