Lancaster v. Norfolk Southern Railway Co., ARB No. 2019-0048, ALJ No. 2018-FRS-00032 (ARB Feb. 25, 2021) (Decision and Order)
PROTECTED ACTIVITY; COMPLAINANT’S OBJECTION TO BEING REQUIRED TO STAY ON DUTY BEYOND HIS ALLOWED HOURS OF DUTY TO WRITE A REPORT ON A TRAIN DELAY FOUND TO BE PROTECTED ACTIVITY UNDER THE FRSA; THE FRSA DOES NOT REQUIRE THAT COMPLAINANT BE ENGAGED IN A SAFETY-RELATED TASK
In Lancaster v. Norfolk Southern Railway Co., ARB No. 2019-0048, ALJ No. 2018-FRS-00032 (ARB Feb. 25, 2021), Complainant was a locomotive engineer. Complainant and a co-worker were required by Respondent to write a statement about a train delay. Complainant did not immediately provide the statement on the grounds that he would be over his hours of service. After speaking with his union representative, Complainant provided the statement. Complainant was then suspended without pay, pending investigatory investigation. Complainant was later assessed a 40-day suspension, without pay. Complainant then filed a FRSA complaint. The ALJ’s determined that Respondent retaliated against Complainant in violation of the FRSA.
On appeal, Respondent argued that Complainant had not engaged in protected activity. The ALJ had concluded that Complainant’s disclosure and initial refusal to fill out a statement was protected activity because he made a lawful, good faith disclosure about Hours of Service Act violation. In this regard, the ALJ had found Complainant’s testimony to be credible and corroborated by his co-worker; that Complainant’s supervisor had actual knowledge that Complainant and his co-worker would be in violation of the Hours of Service Act if they were on duty past 4:30 p.m. that day and the supervisor had a duty to ensure that both employees were off duty by that time; and that the statement would have taken longer to write than the available 15 minutes to avoid the hours of service violation. The ARB found that the ALJ’s findings of fact were supported by substantial evidence. The ARB stated:
Complainant’s disclosure fits squarely within the bounds of what the FRSA protects – Complainant objectively and reasonably believed there was an imminent violation of federal railroad safety law. The FRSA does not require that an employee is engaged in a “safety-related task” as Respondent asserts. The FRSA prohibits railroad employers from taking unfavorable personnel actions against employees for reporting safety issues that are illegal or dangerous. This purpose applies equally whether there is a regulatory violation or a hazardous safety condition that relates to the equipment, or the condition of a person who is working on the equipment.
Slip op. at 6-7 (footnote omitted).
TIMELINESS OF REQUEST FOR ALJ HEARING IN FRSA CASE; THE APPLICABLE REGULATION REQUIRES THAT COMPLAINANT RECEIVE OSHA’S FINDINGS FOR THE CLOCK TO START RUNNING; IT IS NOT SUFFICIENT TO START THE CLOCK FOR OSHA TO SEND COMPLAINANT’S COPY OF THE FINDINGS TO COMPLAINANT’S COUNSEL
In Lancaster v. Norfolk Southern Railway Co., ARB No. 2019-0048, ALJ No. 2018-FRS-00032 (ARB Feb. 25, 2021), Respondent argued that Complainant’s request for an ALJ hearing was not timely. OSHA sent its findings to Complainant’s counsel, and included in the same envelope a copy for Complainant. There was no evidence that Complainant was ever sent a copy of the findings directly. The ARB quoted the regulation at 29 C.F.R. § 1982.105(b), which states: “The findings and, where appropriate, the preliminary order will be sent by certified mail, return receipt requested, to all parties of record (and each party’s legal counsel if the party is represented by counsel).” The ARB determined:
The use of a parenthetical to include counsel indicates that OSHA’s obligation to send its findings to the party of record is primary, but insufficient when a party is represented by counsel. In that case, both the party and counsel must be sent a copy. A plain reading of the language shows that Complainant as a party of record must be sent a copy of the findings. Here, OSHA sent two copies to Complainant’s counsel but did not send one to Complainant.
For the clock to start running on Complainant’s right to appeal, he must receive OSHA’s findings, which is dictated by the language in the regulation governing appeals. There, the regulation indicates that receipt is a prerequisite for the clock to start ticking. “Any party who desires review, including judicial review, of the findings and preliminary order […] must file any objections and/or a request for a hearing on the record within 30 days of receipt of the findings and preliminary order pursuant to § 1982.105.”
We also agree with the ALJ’s conclusion that Complainant’s appeal to OALJ was filed timely because there is no evidence in the record showing that Complainant ever received the OSHA’s findings.
Slip op. at 4-5 (footnote omitted) (emphasis as in original).
PUNITIVE DAMAGES; ARB AFFIRMS ALJ’S AWARD OF $25,000 IN PUNITIVE DAMAGES WHERE THE EVIDENCE SHOWED THAT EVERYONE INVOLVED WAS AWARE OF THE HOURS OF SERVICE ACT, THAT THE ACT HAD BEEN INTENTIONALLY VIOLATED BY RESPONDENT’S DIRECTIVE FOR COMPLAINANT TO STAY ON DUTY BEYOND HIS ALLOWED HOURS TO WRITE A REPORT ON A TRAIN DELAY, AND THAT IT WAS COMMONPLACE FOR EMPLOYEES TO BE REQUIRED TO REMAIN ON DUTY FOR A PERIOD IN EXCESS OF 12 CONSECUTIVE HOURS
In Lancaster v. Norfolk Southern Railway Co., ARB No. 2019-0048, ALJ No. 2018-FRS-00032 (ARB Feb. 25, 2021), the ARB affirmed the ALJ’s determination that Respondent retaliated against Complainant in violation of the FRSA when it suspended Complainant after he had raised an objection that requiring him to stay on duty to write a report on a train delay would violate the Hours of Service Act. The ALJ found that that Complainant’s objection was protected activity; that it had been a contributing factor in the suspension; and that Respondent had not shown by clear and convincing evidence that it would have suspended Complainant in the absence of the protected activity. The ARB affirmed these findings as supported by substantial evidence. Among other damages awards, the ALJ imposed the statutory maximum $25,000 in punitive damages. On appeal, Respondent argued that the award of punitive damages was inappropriate. The ARB, however, affirmed the ALJ’s punitive damages award:
Here, the ALJ followed the proper legal analysis by first determining whether punitive damages were warranted. He held they were based on record evidence and testimony showing that everyone involved was aware of the requirements of the Hours of Service Act. The ALJ also held that [Complainant’s supervisor] was prioritizing his supervisors’ priorities over compliance with the law. After determining that Respondent intentionally violated the Hours of Service Act and the FRSA, the ALJ then awarded punitive damages in the amount of $25,000 based on Respondent’s repeated violations of the Hours of Service Act. Complainant and his supervisors testified at the hearing that it was commonplace for employees to be required to remain on duty for a period in excess of 12 consecutive hours. The ALJ’s process and findings are consistent with ARB precedent and supported by the record.
Slip op. at 10 (footnote omitted).
Kossen v. Empire Airlines, ARB No. 2021-0017, ALJ No. 2019-AIR-00022 (ARB Feb. 25, 2021) (Order Denying Interlocutory Appeal)
INTERLOCUTORY REVIEW DENIED WHERE ALJ CONSIDERED COMPLAINANT'S ALLEGATIONS OF BIAS AND CORRECTLY DETERMINED THAT THEY WERE NOT GROUNDS FOR RECUSAL
In Kossen v. Empire Airlines, ARB No. 2021-0017, ALJ No. 2019-AIR-00022 (ARB Feb. 25, 2021), Complainant's appeal was interpreted by the ARB as a petition for interlocutory review. Complainant's petition was based on the assertion that the presiding ALJ was biased against him because the ALJ did not rule in his favor in a prior case and because the ALJ's son is employed by an airline.
The ARB found that the ALJ had considered these allegations and correctly concluded that neither was grounds for recusal. The ARB found that Complainant failed to allege exceptional circumstances sufficient to merit interlocutory review under the "collateral order" exception. The ARB thus denied the petition.
Oberg v. Quinault Indian Nation, ARB No. 2019-0036, ALJ No. 2017-ACA-00003 (ARB Feb. 22, 2021) (per curiam) (Decision and Order)
PROTECTED ACTIVITY UNDER THE AFFORDABLE CARE ACT; ARB APPLIES REASONABLE BELIEF PRINCIPLES AND PRECEDENT FROM THE ANALOGOUS SARBANES-OXLEY ACT
In Oberg v. Quinault Indian Nation, ARB No. 2019-0036, ALJ No. 2017-ACA-00003 (ARB Feb. 22, 2021) (per curiam), the ARB summarized the nature of protected activity under the Affordable Care Act:
An employee is protected by the ACA if she provides information or complains to her employer about, or refuses to participate in, conduct that she reasonably believes violates any provision of Title I of the ACA. As we have explained in analogous contexts, to be protected, the employee must show that she actually believed, in good faith, that the conduct about which she complained constituted a violation of the pertinent law, and that her belief was objectively reasonable. The employee’s belief is objectively reasonable if a reasonable person in the same factual circumstances and with the same training and experience would have also believed that the conduct about which she complained constituted a violation of the pertinent law.
Slip op. at 4-5 (footnotes omitted). The ARB noted that it had not previously had many opportunities to consider cases under the ACA, but determined that it could draw on principles and precedent from the Sarbanes-Oxley Act, as referenced in the preamble to the Final Rule for the Affordable Care Act regulations, at 81 Fed. Reg. 70,607, 70,611-15 (Oct. 13, 2016).
PROTECTED ACTIVITY UNDER THE AFFORDABLE CARE ACT; RAISING OF CONCERNS ABOUT PATIENT CARE, CLINIC MANAGEMENT, AND MISCONDUCT WERE FOUND NOT TO BE PROTECTED ACTIVITY WHERE THE CONCERNS WERE NOT RELATED TO THE HEALTH INSURANCE REFORM PROVISIONS OF TITLE I OF THE ACA
PROTECTED ACTIVITY UNDER THE AFFORDABLE CARE ACT; ALTHOUGH ACA SECTIONS 2717 AND 1211 REFER TO “QUALITY” HEALTHCARE, THE ACA’S TITLE I HEALTH INSURANCE REFORMS DO NOT RELATE TO QUALITY OF PATIENT CARE; RATHER, THOSE SECTIONS ARE DIRECTED AT PROMOTION OF QUALITY CARE THROUGH REIMBURSEMENT AND PAY INCENTIVES AND PLAN STRUCTURES
PROTECTED ACTIVITY UNDER THE AFFORDABLE CARE ACT; MERE ALLEGATION OF FRAUD DOES NOT ESTABLISH PROTECTED ACTIVITY WITHOUT SHOWING OF LINK TO TITLE I OF THE ACA
PROTECTED ACTIVITY UNDER THE AFFORDABLE CARE ACT; COMPLAINANT PRESENTED ARGUMENT THAT RESPONDENT, A FEDERALLY-FUNDED INDIAN TRIBE, WAS SUBJECT TO TITLE I OF THE ACA BECAUSE IT RECEIVED FEDERAL FUNDINGS RELATED TO ITS HEALTH PROGRAMS AND BENEFITS; THIS ARGUMENT FAILED BECAUSE THE MERE FACT THAT AN ENTITY MAY BE COVERED BY THE ACA DOES NOT ESTABLISH THAT COMPLAINANT’S CONCERNS WERE RELATED TO TITLE I OF THE ACA
PROTECTED ACTIVITY UNDER THE AFFORDABLE CARE ACT; ALTHOUGH COMPLAINANT ADAMANTLY BELIEVED THAT RESPONDENT’S CLINIC WAS NOT PROVIDING AN ADEQUATE LEVEL OF CARE, HAD MISMANAGED SERVICES, AND ENGAGED IN OTHER MISCONDUCT, TO BE ACA PROTECTED ACTIVITY THE CONCERNS MUST BE RELATED TO THE HEALTHCARE INSURANCE REFORMS CONTAINED IN TITLE I OF THE ACA THAT APPLY TO HEALTH CARE INSURERS AND GROUP PLANS
In Oberg v. Quinault Indian Nation, ARB No. 2019-0036, ALJ No. 2017-ACA-00003 (ARB Feb. 22, 2021) (per curiam), Complainant was a nurse practitioner employed by a health clinic operated by Respondent.
Complainant alleged that Respondent terminated her employment because she engaged in activity protected by the Affordable Care Act (ACA). She had raised concerns about patient care, clinic management, and misconduct. The ALJ granted Respondent’s motion for summary decision, finding that Complainant did not engage in protected activity, or have a reasonable belief that her asserted concerns related to the health insurance reforms set forth in Title I of the ACA. The ARB affirmed the ALJ’s grant of summary decision, as Complainant’s concerns were about general patient care and management issues, and not related to the health insurance reform provisions of Title I of the ACA.
Upon review of the ALJ’s order, the record, and the parties’ arguments, we conclude that the ALJ reached a well-reasoned decision based on undisputed facts and the applicable law. Viewing the record in the light most favorable to Oberg, we agree with the ALJ that Oberg did not engage in protected activity because she did not raise concerns about, or refuse to participate in, an activity related to the health insurance reform provisions in Title I of the ACA. As the ALJ correctly explained, Title I includes a number of health insurance and healthcare coverage reforms. Among other things, Title I prohibits lifetime and annual dollar limits on essential health benefits, prohibits pre-existing condition exclusions, provides for the creation of health benefit exchanges, imposes insurance coverage requirements for individuals, provides tax-credits for insurance premiums, and sets requirements for employers to provide health benefits to employees in certain circumstances.
Whereas Title I reforms how health insurance, health plans, and the health insurance market are operated, regulated, and incentivized, Oberg’s complaints concerned patient care and management issues for a health care provider. Oberg has not identified any provision of Title I that regulates a health care provider, such as the Clinic. Nor has Oberg explained how the Clinic’s alleged over-prescription of drugs, departure from quality or accreditation standards, and other issues involving the operation of the Clinic and services provided to patients violated any of the health insurance reforms found in Title I of the ACA.
Slip op. at 6-7 (footnotes omitted).
Complainant argued before the ARB that her asserted protected activity was linked to Title I of the ACA through Section 2717, titled “Ensuring Quality of Care,” and Section 1211, titled “Affordable Choices of Health Benefit Plans.” Complainant had predominantly raised concerns about her refusal to overprescribe opioids and antibiotics, and mismanagement by the Clinic; she also raised other concerns about the quality of services; she argued that by raising these concerns she engaged in ACA protected activity. The ARB was not persuaded by this argument:
Although both sections cited by Oberg refer to “quality” healthcare, neither section requires that health care providers or health professionals maintain a certain quality standard. As summarized by the U.S. Centers for Medicare and Medicaid Services, the ACA’s health insurance reforms appearing in Title I “don’t include the Medicare or Medicaid reforms, and don’t relate to quality of patient care.” Instead, as explained by the ALJ, the provisions Oberg cited are directed towards ensuring that health insurers and plans embrace and promote quality care through reimbursement and pay incentives and plan structures. We agree with the ALJ that the employee protection provision of Title I of the ACA, as presented here, applies to allegations concerning the Act’s reforms related to health care insurers and group plans, and not to quality of care or mismanagement by health care providers.
Id. at 8 (footnotes omitted) (emphasis as in original).
Complainant also argued that she engaged in protected activity when she complained about the clinic’s alleged fraudulent receipt of federal funds (alleged payments for deceased, non-existent, and inactive patients). The ARB determined, however, that Complainant did not cite any relevant provision of Title I that would have been violated by the alleged scheme, and did not explain how the conduct was related to any of Title I’s health insurance and market reform. The ARB stated that Complainant’s “general averments that her concerns about fraud implicated Title I are not sufficient to avoid summary decision.” Id. at 9 (footnote omitted).
Complainant also argued that Respondent, which is a federally-recognized Indian Tribe, “is ‘subject to’ Title I of the ACA because it received federal funds to administer its own health programs, provided health benefits to its tribe members, and effectively served as an ‘HMO type’ insurer.” Id. The ARB again was not persuaded: “The undisputed evidence shows that Oberg expressed concerns about the services provided to patients and the management and operation of the Clinic. The ACA does not protect Oberg merely because QIN may be subject to Title I in some fashion unrelated to the conduct about which she complained.” Id. at 9-10.
The ARB acknowledged that Complainant “adamantly believed that the Clinic was not providing the level of care required by the health profession, management had mismanaged various services provided by the Clinic, and the Clinic had engaged in other misconduct.” The ARB determined, however, the concerns she raised were “not related to the healthcare insurance reforms contained in Title I that apply to health care insurers and group plans.” Id. at 10. The ARB also affirmed the ALJ’s alternative conclusion that Complainant failed to establish that she had an objectively reasonable belief that her conduct violated any provision of Title I of the ACA.
PROTECTED ACTIVITY; LOWER THRESHOLD TO DEFEAT A MOTION TO DISMISS AS OPPOSED TO A MOTION FOR SUMMARY DECISION; IN MOTION TO DISMISS CONTEXT, COMPLAINANT NEED ONLY SHOW “SOME RELATEDNESS” OF ALLEGED PROTECTED ACTIVITY TO GENERAL SUBJECT MATTER OF TITLE I OF ACA; ON MOTION FOR SUMMARY JUDGMENT, COMPLAINANT MUST SHOW THAT THE ACTIVITY RAISED CONCERNS ABOUT, OR WAS A REFUSAL TO PARTICIPATE IN, AN ACTIVITY RELATED TO THE HEALTH INSURANCE REFORM PROVISIONS IN TITLE I OF THE ACA
In Oberg v. Quinault Indian Nation, ARB No. 2019-0036, ALJ No. 2017-ACA-00003 (ARB Feb. 22, 2021) (per curiam), the ARB affirmed the ALJ’s grant of summary decision in favor of Respondent, as Complainant’s asserted protected activity was raising concerns about general patient care and management issues, not shown to be related to the health insurance reform provisions of Title I of the ACA.
In a footnote, the ARB observed that the “some relatedness” standard discussed in Gallas was specific to a case in the posture of a motion to dismiss rather than a motion for summary decision:
In the D. & O., the ALJ discussed the Board’s decision in Gallas v. The Med. Ctr. of Aurora, ARB Nos. 2015-0076, 2016-0012, ALJ Nos. 2015-ACA-00005, 2015-SOX-00013 (ARB Apr. 28, 2017). D. & O. at 13-14, 16-17. In Gallas, the Board held that a complainant bringing a claim under the ACA’s employee protection provision need only show some relatedness between her alleged protected activity and the general subject matter of Title I of the ACA to meet the low threshold required to defeat a motion to dismiss. Gallas, ARB Nos. 2015-0076, 2016-0012, slip op. at 10. As the ALJ in the present case correctly recognized, Gallas was decided in the context of a motion to dismiss, not a motion for summary decision. Different reviewing standards apply at different procedural stages of the process. Evans v. Envtl. Prot. Agency, ARB No. 2008-0059, ALJ No. 2008-CAA-00003, slip op. at 10-11 (ARB July 31, 2012).
Slip op. at 7, n.29.
[Editor’s note: The ALJ had noted that Gallas was decided “in the context of a motion to dismiss and the liberal pleading standard allowed for whistleblower complainants in this forum.” Oberg v. Quinault Indian Nation, ALJ No. 2017-ACA-00003, slip op. at 17 (ALJ Feb. 14, 2019).]
Midamba v. Verizon Wireless Texas, LLC, ARB No. 2019-0052, ALJ No. 2016-SOX-00003 (ARB Feb. 18, 2021) (Decision and Order)
CONTRIBUTORY FACTOR CAUSATION; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING THAT PROTECTED ACTIVITY WAS NOT A CONTRIBUTING FACTOR TO ADVERSE EMPLOYMENT ACTIONS WHERE COMPLAINANT HAD A LENGTHY HISTORY OF POOR PERFORMANCE AND HAD BEEN UNABLE TO MEET GOALS OF A PERFORMANCE IMPROVEMENT PLAN
In Midamba v. Verizon Wireless Texas, LLC, ARB No. 2019-0052, ALJ No. 2016-SOX-00003 (ARB Feb. 18, 2021), Complainant alleged that Respondent retaliated against him when it put him on a performance improvement plan, gave him negative performance reviews, and fired him for reporting what he believed were SOX violations. The ALJ found that Complainant did not establish that he engaged in protected activity or that his alleged activity contributed to the adverse actions. Complainant appealed to the ARB, which found that the ALJ made no errors of law, and that substantial evidence supported the ALJ’s findings. The ARB stated that even if Complainant engaged in protected activity, substantial evidence supported the ALJ’s finding that protected activity was not a contributing factor to the adverse employment actions. The ARB stated that “[n]otably, Complainant had a lengthy history of poor performance dating back to 2009, and he was unable to meet the goals in his performance improvement plan, even after Respondent amended it so it would be easier for Complainant to complete it satisfactorily.” Slip op. at 5. The ARB thus summarily affirmed the ALJ’s decision.
Antonellis v. Republic Airways, ARB No. 2019-0046, ALJ No. 2018-AIR-00024 (ARB Feb. 8, 2021) (per curiam) (Decision and Order)
PROTECTED ACTIVITY; DIFFICULTIES EXPERIENCED BY COMPLAINANT IN MAKING TRIP TO DRUG TESTING FACILITY FOR RANDOM DRUG TEST, ALTHOUGH ARDUOUS, DID NOT FALL WITH AIR21 PROTECTIONS
CONTRIBUTORY FACTOR CAUSATION; COMPLAINANT FAILED TO ESTABLISH BY A PREPONDERNCE OF THE EVIDENCE THAT HER SELECTION FOR A RANDOM DRUG TEST WAS LINKED TO PROTECTED ACTIVITY UNDER AIR21
In Antonellis v. Republic Airways, ARB No. 2019-0046, ALJ No. 2018-AIR-00024 (ARB Feb. 8, 2021) (per curiam), Complainant, who worked as a First Officer for Respondent, filed an AIR21 complaint alleging that Respondent retaliated against her after she submitted Aviation Safety Action Program (ASAP) report concerning a flight related concern, and after she provided notice of intent to file an ASAP related to difficulties she experienced in traveling to a drug testing facility.
Prior to the flight in question, Complainant had been among 350-400 employees who could be selected for a random drug test by a third-party drug testing administrator through its random-generator program. Complainant was informed of her selection for a random drug test two days after the flight-related ASAP report. Complainant experienced difficulties on her way to the drug testing facility, and informed Respondent that she was going to file an ASAP report concerning the trip conditions. Upon arriving at the facility, she was unable to produce a sufficient specimen, and although informed that she needed to stay to follow the “shy bladder” procedure, she informed Respondent that she could not produce a sufficient specimen and needed medical attention. Although Respondent did not give her permission to leave the drug test, she left. Respondent suspended Complainant, and later terminated her employment for the test refusal. A union grievance was filed, and Complainant was reinstated pending the outcome of a FAA investigation. After the FAA completed the investigation and revoked Complainant’s license and medical certificate, Respondent issued a second letter of termination.
The ALJ found that the flight-related ASAP was protected activity under AIR21, but not the notice of intent to file an ASAP related to the trip to the drug testing facility. The ALJ found that Complainant failed to prove by a preponderance of the evidence that flight related ASAP was a contributing factor in her selection for a random drug test, in Respondent reporting her as a drug test refusal, or in Respondent’s decision to terminate her employment.
On appeal, Complainant argued that the ALJ erred in finding that the notice of intent to file an ASAP about the travel conditions to the drug testing facility was not protected activity, and in finding that the other ASAP report was not a contributing factor in the adverse employment actions. Complainant also challenged the ALJ’s findings of fact and credibility determinations.
The ARB found that the ALJ’s decision was supported by substantial evidence, and that Complainant had not shown an abuse of discretion or reversible error by the ALJ. The ARB summarized: “We recognize that the trip to the testing facility was arduous but those activities and conditions do not fall within the statute’s protections. Most importantly, there was simply no evidence that Complainant’s protected conduct was at all linked to her selection to be drug tested. They were wholly separate, to put it simply, incidences. The record is clear on this point. Accordingly, we summarily AFFIRM the ALJ’s D. & O.” Slip op. at 6.
Mawhinney v. American Airlines, Inc., ARB No. 2020-0067, ALJ No. 2012-AIR-00017 (ARB Feb. 4, 2021) (per curiam)
ARBITRATION OF AIR21 RETALIATON COMPLAINT BASED ON JUDICIAL ENFORCEMENT OF TERM OF PRIOR SETTLEMENT AGREEMENT; ALJ FOUND TO HAVE CORRECTLY GRANTED SUMMARY DECISION DISMISSING DOL COMPLAINT BASED ON PRECLUSIVE EFFECT OF JUDICIALLY CONFIRMED ARBITRATION AWARDS
In Mawhinney v. American Airlines, Inc., ARB No. 2020-0067, ALJ No. 2012-AIR-00017 (ARB Feb. 4, 2021) (per curiam), the ARB adopted the ALJ’s decision granting summary decision in favor of Respondent, finding that the ALJ’s decision was accordance with the law and was well-reasoned, and that Complainant’s appellate briefing failed to show that the ALJ erred.
The ALJ’s grant of summary decision was based on the fact that a previous settlement agreement between the parties had included a provision that all future employment disputes were required to be addressed in arbitration. After a district court issued an order compelling Complainant to engage in arbitration regarding his AIR21 complaint, the ALJ placed the DOL hearing in abeyance. Two related arbitrations were then held, and both were confirmed by the District Court, and then affirmed by the Court of Appeals. The ALJ granted summary decision as to the DOL action based on the preclusive effect of the arbitration awards as confirmed by the Federal courts. The ALJ explained:
Under the Federal Arbitration Act, a judgment confirming an arbitration award “shall have the same force and effect, in all respects, as, and be subject to all the provisions of law relating to, a judgment in an action; and it may be enforced as if it had been rendered in an action in the court in which it is entered.” 9 U.S.C. § 13(c). Thus, the judgments entered on the two arbitrations are final judgments of a district court, and it is established that (1) Mr. Mawhinney was not terminated in retaliation for engaging in protected activity, and (2) Mr. Mawhinney may not further pursue his AIR21 claim. The latter final judgment is sufficient to grant AA’s motion. And because the judgments confirming the arbitration awards have the same force and effect as a judgment in a civil action, I need not determine whether the arbitrator’s findings alone form a basis for granting summary decision based on res judicata; the arbitration proceedings resulted in the equivalent of a judicial judgment in favor of Respondent, which has been affirmed, and Complainant has no further recourse.
Because I am granting summary decision based on the preclusive effect of the arbitration awards, as confirmed by the judgments of the district court that were themselves affirmed by the Court of Appeals, I need not and do not address Respondent’s argument regarding collateral estoppel. And the grant of summary decision makes moot Respondent’s motion for summary decision on the merits.
Mawhinney v. American Airlines, Inc., No. 2012-AIR-00017, slip op. at 4 (ALJ Sept. 3, 2020).
Onysko v. State of Utah, Dept. of Environmental Quality, ARB No. 2019-0042, ALJ Nos. 2017-SDW-00002, 2018-SDW-00003 (ARB Feb. 4, 2021) (per curiam) (Order Denying Reconsideration)
[Nuclear and Environment Digest IX D 3]
MOTION FOR RECONSIDERATION OF ARB DECISION; COMPLAINANT'S CONTENTION THAT THE ARB HAD NOT ADDRESSED ALL OF HIS CONTENTIONS; ARB DENIED RECONSIDERATION, STATING THAT ALTHOUGH IT HAD NOT ADDRESSED EACH ARGUMENT IN TURN, IT HAD CONSIDERED ALL THE MATERIAL ISSUES, AND RECONSIDERATION WAS NOT MERITED FOR FOR ARGUMENTS THAT MISSED THE MARK, OR ON EVIDENCE THAT HAD BEEN MISCHARACTERIZED IN THE BRIEFING
[Nuclear and Environmental Digest XIII C]
HOSTILE WORK ENVIRONMENT; PRESENTING A LIST OF 87 DISCONNECTED ACTS BY VARIOUS PERSONS, INCLUDING COMPLAINANT, FAILED TO ESTABLISH A HOSTILE WORK ENVIRONMENT CLAIM WHERE THEY DID NOT SHOW SEVERE OR PERVASIVE CONDUCT CONSIDERED AS A WHOLE
In Onysko v. State of Utah, Dept. of Environmental Quality, ARB No. 2019-0042, ALJ Nos. 2017-SDW-00002, 2018-SDW-00003 (ARB Feb. 4, 2021) (per curiam), Complainant requested that the ARB reconsider its Decision and Order affirming and adopting the ALJ's Decision and Order Granting Summary Decision. The ARB denied the petition, finding that it had addressed all Complainant's arguments in its Decision and Order, and that the petition did not fall within any of the four limited circumstances in which the ARB will reconsider.
The ARB noted Complainant's argument that the ARB had used the wrong standard for considering his hostile work environment claim. The ARB stated that it had considered each of Complainant's 87 allegations of adverse action, which included acts by several
non-Respondents and Complainant himself The ARB stated that Complainant's claim lacked the required showing of "severe or pervasive conduct" under Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). The ARB stated: "Putting eighty seven incidents together in a list does not create a hostile work environment claim out of disconnected acts by various persons, including Complainant. Considering these eighty seven allegations as a whole, there is simply no cognizable hostile work environment as a matter of law." Slip op. at 3.
The ARB stated that it had "considered all of the material issues and reviewed all of Complainant’s citations in his brief to his and Respondent’s submissions to the ALJ. While we did not address each argument in turn, we determined they missed the mark. None of them affect the underlying conclusion that Onysko failed to set forth a genuine issue of material fact about whether Respondent would have taken every adverse action it took against Onysko absent any of his protected activities." Id. (footnote omitted).
The ARB noted Complainant's argument that the ARB "overlooked per se violations of the statute. . . . We reviewed the evidence at each of Complainant’s citations to the alleged' 'per se violations' and could find no per se violations. Like with Complainant’s hostile work environment assertion, characterization of the evidence in a certain way in a brief such that it is a mischaracterization does not support Complainant’s appeal and does not merit reconsideration." Id. at 3, n.4.