February 2020
Shi v. Moog, Inc., ARB No. 2017—0072, ALJ No. 2016-AIR-00020 (ARB Feb. 27, 2020) (Order Denying Reconsideration)
USDOL/OALJ Reporter
Casenote(s):
The ARB denied reconsideration.
Hiller v. Grand Trunk Western Railway Co., ARB No. 2020-0010, ALJ No. 2018-FRS-00088 (ARB Feb. 26, 2020) (per curiam) (Decision and Order Approving Settlement and Dismissing Complaint With Prejudice)
Casenote(s):
The ARB approved the parties’ settlement agreement and dismissed the complaint.
Lindner v. CitiMortgage, Inc., ARB No. 2018-0047, ALJ No. 2017-CFP-00007 (ARB Feb. 25, 2020) (per curiam) (Order Dismissing Interlocutory Appeal)
Casenote(s):
COVERED EMPLOYEE; INTERLOCUTORY REVIEW OF ALJ’S APPLICATION OF LAWSON TO CFPA DENIED WHERE ISSUE REQUIRED FINDINGS OF FACT AND ALJ’S RULING WAS FULLY REVIEWABLE ON APPEAL
In Lindner v. CitiMortgage, Inc., ARB No. 2018-0047, ALJ No. 2017-CFP-00007 (ARB Feb. 25, 2020) (per curiam), the ALJ had granted Respondent’s request to certify for interlocutory appeal the question of whether Complainant was an “employee” or “covered employee” under the retaliation provisions of the Consumer Financial Protection Act (CFPA) and the Sarbanes-Oxley Act (SOX), and had standing to bring his claims. In the interim, the SOX claim was dismissed on other grounds, and only the CFPA claim remained. The ARB denied interlocutory review, stating that “[r]esolving the issue of whether Lindner is a covered employee under the CFPA or SOX requires specific findings of fact not before us, and a ruling on that question is fully reviewable on appeal.” Slip op. at 4.
The ALJ in her order certifying the matter for interlocutory appeal had explained that Respondent averred that she “erred in [her] interpretation of Lawson v. FMC LLC, 134 S. Ct. 1158 (2014) and the Acts’ implementing regulations in rendering my decision” to find that a contractor’s employees are covered under both SOX and the CFPA. Lindner v. CitiMortgage, Inc., 2017-CFP-00007, slip op. at 1 (ALJ May 3, 2018).
Larrick v. Bechtel National, Inc., ARB No. 2017-0053, ALJ No. 2017-ERA-00004 (ARB Feb. 20, 2020) (per curiam) (Decision and Order)
Casenote(s):
[Nuclear and Environmental Whistleblower Digest VIII B 2 d]
TIMELINESS OF COMPLAINT; BECAUSE ARB REVIEWS ALJ’S GRANT OF SUMMARY DECISION DE NOVO, AND THE FACTS ESTABLISHED THAT COMPLAINT WAS NOT TIMELY FILED AND THAT EQUITABLE TOLLING DID NOT APPLY, ARB AFFIRMED ALJ’S DISMISSAL OF COMPLAINT DESPITE COMPLAINANT’S ARGUMENT THAT HE HAD NOT RECEIVED RESPONDENT’S MOTION TO DISMISS
In Larrick v. Bechtel National, Inc., ARB No. 2017-0053, ALJ No. 2017-ERA-00004 (ARB Feb. 20, 2020) (per curiam), OSHA found that Complainant’s ERA whistleblower complaint was not timely filed. Respondent filed with the ALJ a motion to dismiss for untimeliness, to which Complainant did not respond. The ALJ took official notice of the facts as found by OSHA and dismissed the complaint. On appeal, the ARB determined that the ALJ correctly determined that Complainant should have filed his complaint within 180 days of notification to him that he would be laid off rather than the date the layoff was to occur. On appeal, Complainant argued that he had not received the motion to dismiss, so he could not properly oppose it. The ARB, assuming arguendo that Complainant had not received the motion, noted that it reviews motions for summary decision and legal questions (including whether equitable tolling is warranted) de novo. Here, Complainant’s contention was that he believed he had 180 days from the date is employment ended to file his ERA complaint. However, as the ARB had earlier determined the limitations period ran from the date Complainant was informed that he would be laid off, and the complaint was untimely. Thus, Complainant was required to justify application of equitable tolling principles. The ARB stated that ignorance of the law generally will not support equitable tolling, and that it concluded that it did justify such tolling in the instant case. The ARB noted that lack of prejudice to the opposing party is not an independent ground for equitable tolling. As the facts regarding the timeliness of the complaint were not in dispute, the ARB affirmed the ALJ’s conclusion that the complaint was not timely.
Brown v. BWSR, LLC, ARB No. 2019-0060, ALJ No. 2019-ERA-00003 (ARB Feb. 19, 2020) (Final Decision and Order)
Casenote(s):
[Nuclear & Environmental Whistleblower Digest XIV B 4 a]
COVERED EMPLOYER; SUBCONTRACTOR OF OFFICE OF NAVAL REACTORS EXEMPTED UNDER E.O. 12344
In Brown v. BWSR, LLC, ARB No. 2019-0060, ALJ No. 2019-ERA-00003 (ARB Feb. 19, 2020), the ARB adopted the ALJ’s grant of summary decision in favor of Respondent where the ALJ properly concluded that Respondent was not covered under the ERA whistleblower provision because it was a subcontractor covered by Executive Order 12344. See 42 U.S.C. § 5851(a)(2)(D).
The ALJ wrote in his Order Granting Respondent’s Motion for Summary Decision:
Brown v. BWSR, No. 2019-ERA-00003, slip op. at 3-4 (ALJ May 13, 2019) (footnote omitted).The Respondent argues that because it is a subcontractor on a contract received from the Office of Naval Reactors it is covered by Executive Order 12344, and thus cannot be considered an “employer” under § 5851(a)(2)(D). In 1992, Congress passed the Comprehensive National Energy Policy Act, which in pertinent part, amended the ERA whistleblower regulations to provide coverage for private contractors and subcontractors of the DOE. Pub. L. 102-486 §2902. However, the 1992 amendments expressly excluded coverage for “any contractor or subcontractor covered by Executive Order No. 12344.” Part of the plain language definition of “cover” is “to deal with” or “be the subject of.” Accordingly, I find that a plain interpretation of the 5851(a)(2)(D) is that the term “employer” does not include any contractor or subcontractor of the DOE that deals with work that is the subject of Executive Order 12344. I find that BWSR is such a subcontractor.
Executive Order 12344 assigns the Office of Naval Reactors the responsibility to direct and supervise work at naval nuclear reactor facilities. (Sec. 5). BWSR is a subcontractor for BMPC and FMP and these companies contracted with the Office of Naval Reactors to provide services relating to decommissioning, decontaminating and construction at four naval nuclear reactor facilities, including the facility in Idaho Falls, Idaho. I find that the services provided by BWSR for the Office of Naval Reactors are for work that is the subject of Executive Order 12344 and therefore that BWSR is a subcontractor covered by Executive Order 12344. The Complainant does not dispute that BWSR is a subcontractor for the DOE and has noted that the prime contracts held by Bechtel Marine Propulsion and Fluor Marine Propulsion were made with the DOE department created by Executive Order 12344. (CL. Resp. at 6-7).
Gino Morena Enterprises, LLC, ARB Nos. 2017-0010, -0011, ALJ No. 2017-CBV-00001 (ARB Feb. 19, 2020) (Final Decision and Order)
Casenote(s):
TIMELINESS OF “ARM’S LENGTH” SERVICE CONTRACT ACT HEARING REQUEST UNDER 29 C.F.R. § 4.11; WHERE FACTS WERE UNDISPUTED THAT THE HEARING REQUEST WAS NOT TIMELY, AND THE ADMINISTRATOR HAD NOT MADE ANY FINDINGS IN THE ORDER OF REFERENCE CONCERNING WHETHER EXTRAORDINARY CIRCUMSTANCES EXISTED TO EXCUSE THE UNTIMELY REQUEST, THE ARB AFFIRMED THE ALJ’S DETERMINATION DISMISSING THE CLAIM
In Gino Morena Enterprises, LLC, ARB Nos. 2017-0010, -0011, ALJ No. 2017-CBV-00001 (ARB Feb. 19, 2020), the Army and Air Force Exchange Service (AAFES), petitioned the Administrator. Wage and Hour Division for an inquiry into negotiations underlying a collective bargaining agreement (CBA) between Gino Morena Enterprises, LLC (GME), and Fort Bliss Barbers Association. The Administrator granted the request and issued an Order of Reference for an arm’s-length hearing pursuant to the Service Contract Act regulation at 29 C.F.R. § 4.11(c) and (d). The ALJ determined that the request for a hearing was untimely filed and that the Administrator failed to discuss or rule upon the issue of extraordinary circumstances. The ARB affirmed the ALJ’s determination.
Before the ALJ, GME argued that the hearing request was untimely and that extraordinary circumstances did not exist to justify a late filing. The ALJ issued an Order to Show Cause, in response to which AAFES conceded that the request was submitted after the contract award, but argued that the Administrator had implicitly excused the untimeliness by issuing the Order of Reference, to which the ALJ should defer. AAFES also argued that it could not have timely requested a hearing because it did not have necessary information within the ten-day cut-off date of § 4.11(b)(2)(i). The Administrator agreed with AAFES. The ALJ found that the hearing request was untimely, that the Order of Reference contained no analysis on timeliness or exceptional circumstances, and that the Administrator had not made this determination. The ALJ found, in the alternative, that the unsuccessful bidder had the necessary information prior to the 10-day cut-off.
On appeal, the ARB first found it undisputed that AAFES’ request for an arm’s length hearing was not timely. The ARB rejected the argument that the ALJ was not permitted under the regulations at § 4.11(c) to review timeliness, finding that in context the regulation’s restrictive language was only intended to restrict the ALJ from adjudicating other SCA matters unrelated to the Order of Reference, and that “[t]he express timing requirement is part and parcel of the hearing request and becomes a matter of record before the ALJ and the ARB on review.” Slip op. at 8 (citations omitted). The ARB was concerned about the Administrator’s lack of written explanation on timing and extraordinary circumstances, the ARB stating: “The acceptance of an untimely filing is a legal determination that is subject to legal process and appeal like any other determination of the Administrator.” Id. at 9. The ARB noted that the regulations at 29 C.F.R. Part 6, and the Administrative Procedure Act require an administrative record on each finding, conclusion or exception presented, and stated that it found “nothing excluding timeliness rulings from the appealable content concerning arm’s-length hearings.” The ARB denied the Administrator request for a remand to make findings on extraordinary circumstances, finding that the Administrator’s failure to do so had been fatal to the case.
MLB Transportation, Inc. v. Administrator, Wage and Hour Division, ARB No. 2016-0078 (ARB Feb. 13, 2020) (per curiam) (Final Decision and Order Denying Reconsideration in Part, Granting Reconsideration in Part, and Affirming the Administrator’s Denial of Reclassification)
Casenote(s):
REVIEW OF ADMINISTRATOR’S DETERMINATION ON RECLASSIFICATION OR CONFORMANCE REQUEST UNDER 29 C.F.R. § 8.7(b); ARB APPLIES DEFERENTIAL REVIEW FOCUSING ON REASONABLENESS OF ADMINISTRATOR’S DECISION; IN INSTANT CASE ADMINISTRATOR ACTED REASONABLY IN DETERMINING THAT PETITIONER’S DRIVERS’ DUTIES FIT SHUTTLE BUS DRIVER CATEGORY RATHER THAN TAXI DRIVER CATEGORY PROPOUNDED BY PETITIONER
In MLB Transportation, Inc. v. Administrator, Wage and Hour Division, ARB No. 2016-0078 (ARB Feb. 13, 2020) (per curiam), the ARB denied the Petitioner’s (MLB) motion to reconsider the ARB’s July 23, 2019 order finding that MLB’s petition for review was untimely under the Service Contract Act regulation at 29 C.F.R. § 8.6(b) and (d), as MLB had not filed its petition prior to any “award, exercise of option, or extension of a contract” on any of the service contracts addressed in the petition. The ARB, however, granted reconsideration under 29 C.F.R. § 8.7(b) in regard to the Administrator’s final determination on reclassification and conformance, as that petition had been timely filed. The Administrator had found that MLB’s drivers, who provided wheelchair van and sedan services for VA beneficiaries, were properly classified as shuttle bus drivers based on the SCA Directory of Occupations. MLB contended that the proper classification was for taxi drivers. Applying the deferential level of review found in precedential decisions, the ARB summarily affirmed the Administrator’s decision, finding that the Administrator’s decision had been reasonable. The ARB stated: “When reviewing the Administrator’s determination in a reclassification or conformance action, we must focus on the Administrator’s choice and the rationale advanced to support it. Comparing the duties listed with those in shuttle driver, we cannot conclude that the Administrator erred in refusing to reclassify NEMT drivers as taxi drivers. Cf. Andrew Aiken, ARB No. 08-009, slip op. at 8 (‘the conformance process does not require the exactitude that might be achieved in a de novo determination of prevailing wage rates.’).” Slip op. at 7 (emphasis as in original).
Neff v. Keybank National Association, ARB No. 2019-0035, ALJ No. 2018-SOX-00013 (ARB Feb. 5, 2020) (per curiam) (Final Decision and Order)
Casenote(s):
SUMMARY DECISION; ARB UPHOLDS ALJ’S GRANT OF SUMMARY DECISION DISMISSING SOX AND CFPA COMPLAINTS WHERE ALJ HAD PROVIDED NOTICE TO SELF-REPRESENTED COMPLAINANT OF HER OBLIGATION TO PROVIDE SUFFICIENT EVIDENCE TO RAISE A GENUINE ISSUE OF MATERIAL FACT, BUT SHE FAILED TO DO SO
ARB REVIEW OF ALJ DECISION; ALJ’S ERROR IN REFERRING IN DECISION TO FAILURE TO ESTABLISH “ACTUAL” VIOLATION OF LAW ENUMERATED IN SOX FOUND TO BE HARMLESS ERROR WHERE ALJ HAD APPLIED THE CORRECT “REASONABLE BELIEF” STANDARD IN DECIDING A MOTION FOR SUMMARY DECISION
In Neff v. Keybank National Association, ARB No. 2019-0035, ALJ No. 2018-SOX-00013 (ARB Feb. 5, 2020) (per curiam), because Complainant was not represented by counsel, the ALJ provided heightened supervision of the hearing on Complainant’s Sarbanes-Oxley Act (SOX)/Consumer Financial Protection Act (CFPA) claims. The ALJ conducted numerous telephone status conferences and a telephone motion hearing. When Respondent filed a motion for summary decision, the ALJ informed Complainant of her obligation to oppose the motion with evidence sufficient to create a genuine issue as to a material fact, and that failure to do so would result in dismissal of her claim. Complainant filed a brief but failed to develop or present evidence to oppose the motion for summary decision. Among other findings, the ALJ found that there was no evidence or allegation that Complainant held a good faith belief that Respondents took actions in violation of the laws enumerated in SOX or that she had ever reported such actions to any person. The ARB noted that the ALJ committed error when he referred in one part of the decision to a failure to show “actual” violations by Respondent or an “actual” impact on the price of Respondent’s stock. The ARB, however, concluded that this was harmless error because he actually had applied the correct “reasonable belief” standard. The ALJ also found that Complainant failed to show that she was a person covered by the CFPA or had reported any improper conduct related to consumer financial services. On appeal to the ARB, Complainant did not identify any errors of fact or law showing that the ALJ’s findings were wrong. Upon de novo review, the ARB upheld that the ALJ’s grant of summary decision dismissing the SOX and CFPA claims.
Yowell v. Fort Worth & Western R.R., ARB No. 2019-0039, ALJ No. 2018-FRS-00009 (ARB Feb. 5, 2020) (per curiam) (Final Decision and Order)
Casenote(s):
CONTRIBUTORY FACTOR CAUSATION AND AFFIRMATIVE DEFENSE; WHERE ALJ FOUND THAT RESPONDENT FIRED COMPLAINANT FOR VIOLATION OF ITS POLICY ON TIMELY REPORTING OF INJURIES, ARB DISMISSED THE COMPLAINT
CONTRIBUTORY FACTOR CAUSATION AND AFFIRMATIVE DEFENSE; ARB NO LONGER APPLIES “INEXTRICABLY INTERTWINED” AND “CHAIN OF EVENTS” CAUSATION ANALYSIS
CONTRIBUTORY FACTOR CAUSATION; ARB NOW FOLLOWS EIGHT’S CIRCUIT’S KUDUK INTENTIONAL RETALIATION STANDARD
ARB REVIEW; A REMAND IS NOT REQUIRED DESPITE ALJ’S APPLICATION OF NOW-REJECTED PRECEDENT WHERE ALJ’S THOROUGH FINDINGS OF FACT AND CREDIBILITY DETERMINATIONS SHOWED COMPLAINANT HAD NOT ESTABLISHED HIS CASE AND A REMAND WOULD BE POINTLESS
In Yowell v. Fort Worth & Western R.R., ARB No. 2019-0039, ALJ No. 2018-FRS-00009 (ARB Feb. 5, 2020) (per curiam), Complainant alleged retaliation in violation of the FRSA by Respondent for his report of a workplace injury. OSHA found no violation, but the ALJ did and awarded relief to Complainant. On appeal, the ARB reversed, vacated the award of relief, and dismissed the complaint.
When Complainant reported an injury to his knee, he gave inconsistent statements about where the injury had occurred, and eventually disclosed that he had injured his knee the week before but did not report the injury until he felt pain. Respondent had a very strict policy requiring timely reporting of injuries, no matter how small. Respondent’s General Director of Operating Policies testified that injuries must be reported even if no pain is experienced so that the scene may be investigated for safety. Respondent’s Chief Transportation Officer testified that Complainant was terminated from employment because the late reporting of the incident had prevented Respondent from investigating the scene to ensure that it was safe. Complainant testified that the only reason he was fired was for late reporting.
The ARB affirmed the ALJ’s findings of protected activity and adverse employment action, but found that the ALJ erred in his contributory factor causation analysis. The ALJ applied the “inextricably intertwined rule,” finding that had there been no protected report, Complainant would not have been disciplined. On appeal, the ARB agreed with Respondent that it was error for the ALJ to apply “chain-of-events” causation. The ARB stated:
As we explained in Thorstenson, the ARB no longer requires that ALJs apply the "inextricably intertwined" or "chain of events" analysis. Thorstenson v. BNSF Ry. Co., ARB Nos. 18-059, -060, ALJ No. 2015-FRS-052, slip op. at 10 (ARB Nov. 25, 2019) ("We note that the plain language of the statute does not include the term "inextricably intertwined." Rather, this is a construction that substitutes for, and in some cases circumvents, the ALJ's contributing factor or affirmative defense analyses."). By placing the focus on how the employer came to learn of the employee's wrongdoing rather than the employer's actions based on that wrongdoing or protected activity, "chain of events" causation departs from the statute's "contributing factor" text. Id. at 10.
Slip op. at 7. For the same reasons, the ARB determined that the ALJ’s application of "inextricably intertwined" reasoning to find that Respondent could not prevail in its same-action defense was error.
The ARB determined a remand was not necessary. It noted that the ALJ had made thorough findings of fact showing that the termination was based solely on late reporting of the injury, and that the ALJ found that Complainant was not credible and that Respondent’s witnesses were credible. The ARB determined that these findings of fact and credibility determinations established that Respondent proved its affirmative defense that it would have fired Complainant for late reporting even in the absence of protected activity. The ARB noted that “[i]n Samson v. U.S. Dep't of Labor, 732 Fed. Appx. 444 (7th Cir. 2018), the 7th Circuit determined that the ALJ’s error on the element of protected activity did not require remand and that remand would be ‘pointless’ because the issue of causation permitted only one result; this is so because of the deference given to the ALJ's credibility findings. Id. at 446-47….” Slip op. at 9-10 (addition citations omitted).
[Editor’s note: To put this decision in perspective, the ALJ issued his decision on February 20, 2019. He provided a detailed discussion of ARB authority in effect at the time. The ALJ concluded that the precedent indicated that ALJs should apply an “inextricably intertwined, presumptive inference of causation….” ALJ decision at 41 (citations omitted). Moreover, the ALJ expressly followed precedent from outside the Eighth Circuit (and noted that this case did not arise in the Eighth Circuit) to conclude that the Kuduk intentional retaliation standard did not apply, and that a complainant is not required to show Respondent had a retaliatory motive in terminating him due to a late report of injury. ALJ decision at 42. The ARB’s Thorstenson decision rejecting "inextricably intertwined" or "chain of events" analysis was not issued until November of 2019.
It is also noted that in Yowell, the ARB cited Kuduk favorably in discussing contributory factor analysis. The ARB wrote:
To establish a violation under the FRSA, a complainant must show that the protected activity was a “contributing factor” in the adverse employment action. 49 U.S.C. § 20109(d)(2)(A), referring to 49 U.S.C. § 42121(b)(2)(B)(i). “A ‘contributing factor’ includes ‘any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision.’” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 461-62 (9th Cir. 2018), quoting Gunderson v. BNSF Ry. Co., 850 F.3d 962, 969 (8th Cir. 2017). “[T]he contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity.” Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014). In satisfying this statutory standard, a complainant need not prove a retaliatory motive beyond showing that the employee's protected activity was a contributing factor in the adverse action. Araujo u. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 158 (3d Cir. 2013).
Compare the Eighth Circuit’s recent decision in Dakota, Minn. & E. R.R. Corp. v. United States Dep't of Labor Admin. Review Bd., No. 18-2888 (8th Cir. Jan. 30, 2020) (2020 U.S. App. LEXIS 2978; 2020 WL 486843), in which the court roundly criticized the ARB’s unfavorable analysis of Kuduk in Riley v. Dakota, Minn. & E. R.R. Corp., ARB Nos. 16-010, -052, ALJ No. 2014-FRS-00044 (ARB July 6, 2018) (see especially n. 13).
It is now clear that the ARB has rejected its earlier precedent instructing, or at least implying, that ALJs should apply an “inextricably intertwined” standard to contributory factor causation, and should not follow the Kuduk intentional retaliation standard.]