USDOL/OALJ Reporter: ARB Decision Caselist -- March 2007

 

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Summary :

TIMELINESS OF COMPLAINT; DATE COMPLAINANT WAS PRESENTED WITH "CAREER DECISION DATE" CHOICES RATHER THAN LATER DATE OF TERMINATION IS DATE THAT LIMITATIONS PERIOD BEGINS

In Rollins v. American Airlines, Inc. , ARB No. 04-140, ALJ No. 2004-AIR-9 (ARB Apr. 3, 2007), a whistleblower complaint arising under both AIR21 and SOX, the Respondent issued to the Complainant a "Career Decision Day Advisory Letter" providing three choices: (1) commit to comply with the Respondent's rules and regulations (including satisfactory work performance and personal conduct) and accept reassignment, (2) voluntarily resign with transitional benefits and agree not to file a grievance, or (3) accept termination with grievance options. Five days later the Complainant informed the Respondent that he would not agree to any of the options, and on that same day the Complainant was provided a letter of termination. The whistleblower complaint would be timely if measured from the date of the termination letter, but untimely if measured from the date of the advisory letter. The ARB found that advisory letter provided final and unequivocal notice to the Complainant that the Respondent had decided to terminate his employment. The ARB observed that under English v. Whitfield , 858 F.2d 957, 962 (4th Cir. 1988), rev'd on other grounds , 496 U.S. 72 (1990) and Wagerle v. The Hosp. of the Univ. of Pa. , 1993-ERA-1, slip op. at 3-6 (Sec'y Mar. 17, 1995), the possibility that the Complainant could have avoided the effects of the advisory letter by resigning voluntarily or accepting employment in another division did not negate the effect of the advisory letter's notification of intent to terminate the Complainant's employment. Thus, the complaint was untimely.

 

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Summary :

TIMELINESS OF BENCHING COMPLAINT; LCA REGULATION MAKES BENCHING A "CONTINUING VIOLATION" THAT REMAINS ACTIONABLE FOR THE DURATION OF THE LCA EMPLOYMENT PERIOD

In Gupta v. Jain Software Consulting, Inc. , ARB No. 05-008, ALJ No. 2004-LCA-39 (ARB Mar. 30, 2007), the ALJ erred in finding that the one-year limitations period for filing a " benching" complaint under 20 C.F.R. § 655.806(5) commenced on the date that the Alien knew that he was no longer receiving assignments or being paid by the Respondent. Rather, the ARB held:

[T]he regulatory text expressly provides to the contrary � the limitations period commences on the latest date on which the employer fails to perform an action or fulfill a condition specified in the LCA.

   Thus, the limitations period for a benching complaint does not begin to run as long as the employer maintains an employment relationship with a nonimmigrant it has chosen to place in nonproductive status. ... In other words, the express terms of the regulation make a benching violation a "continuing violation" that remains actionable for the duration of the employment relationship as stipulated in the LCA.

Gupta , supra USDOL/OALJ Reporter at 5 (citation omitted). The ARB held that because the complaint was filed before the term of employment stipulated in the LCA had expired, it was timely. The Respondent had presented an alternative argument that it had effected a bona fide termination of the employment relationship more than one year before the Alien filed his benching complaint. Applying the FRCP 12(b)(6) standard for a motion to dismiss for failure a state a claim on which relief can be granted (drawing all reasonable inferences in favor of the non-moving party), the ARB rejected this argument finding that the Respondent had only alleged that it had notified the INS (now DHS) that the employment relationship had ended, but that a bona fide termination also required showings that notice had been given to the Alien, and in some circumstances, payment for transportation home. Because there was an issue of material fact on whether the employment relationship had been terminated, the ARB held that there was no limitations barrier to the Alien's complaint.

 

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Summary :

TIMELINESS OF COMPLAINT; CONTINUING VIOLATION DOCTRINE NO LONGER VIABLE

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the ALJ erred in applying the "continuing violation" doctrine to find that the Complainant had made a timely complaint alleging that the EPA had engaged in adverse employment action when it failed to follow its internal peer review process for granting permission to its scientists to publish research papers. Rather, the ARB found applicable the "discrete action" standard from Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 110, 114-15 (2002). Thus, because the Complainant knew more than two months prior to filing of his environmental whistleblower complaint that a scientist well-known to advocate a position different from that of the Complainant in regard to the subject of the paper (whether sludge fertilization presents public health risks) had inappropriately participated in the peer review, and the applicable limitations period was only 30 days, the complaint was untimely.

ADVERSE ACTION; DISSEMINATION OF DOCUMENT CRITICAL OF COMPLAINANT'S THEORIES AND RESEARCH WAS NOT ADVERSE ACTION WHERE THE COMPLAINANT DID NOT DEMONSTRATE THAT THE DISSEMINATION HAD ANY ADVERSE EFFECT ON HIS COMPENSATION OR THE TERMS, CONDITIONS OR PRIVILEGES OF HIS EMPLOYMENT; ALLEGATION OF BLACKLISTING REQUIRES SHOWING OF INTENT TO PREVENT FUTURE EMPLOYMENT

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the Complainant was a highly respected microbiologist at the EPA's Office of Research and Development who had been critical of EPA Rule 503 about the application of bio-solid wastes to land, claiming a lack of research into the harmful effects of pathogens released during sludge fertilization. The Complainant served as an expert witness in a wrongful death case grounded in allegation that the death was related to sludge fertilization. These activities prompted a national sludge fertilization company to produce a White Paper criticizing the Complainant's theories and research. This company e-mailed the White Paper to numerous persons in the industry and to EPA employees, including a scientist in EPA's Office of Waste Water Management who was the agency's contact regarding Rule 503. This scientist provided a copy of the White Paper to an attorney for another fertilizer company who was preparing for a state-level public hearing at which the Complainant was scheduled to speak in his personal capacity. That attorney circulated the paper at the hearing and indicated that it had come from the EPA.

On appeal before the ARB the question was presented whether the EPA scientist's dissemination of the White Paper was adverse employment action. The ARB held that it was not, even assuming for purposes of argument that the scientist had some supervisory authority over the Complainant or that the EPA failed to promptly remedy the situation. First, the ARB held that the Complainant failed to demonstrate that distributing the White Paper had any adverse effect on the compensation, terms, conditions or privileges of his employment with EPA. Although the Complainant was unhappy about the distribution and its denigrating contents, the ARB pointed to testimony that the White Paper was "common knowledge" and found that its distribution was not materially adverse to the point where it could dissuade a reasonable worker from engaging in protected activity. The ARB noted that, in fact, the Complainant had not been dissuaded, had continued to promulgate his views, and was eventually vindicated about the need for more research.

The ARB found that the Complainant's argument that distributing the White Paper was "badmouthing" was an allegation of blacklisting, which to be actionable requires a showing that information was disseminated to prevent a complainant from finding employment, and not merely subjective feelings toward the action. The ARB found that the Complainant's claims that the White Paper damaged his reputation and thus his future employment prospects failed because he provided no evidence that EPA managers intentionally disseminated damaging information that prevented him from finding employment. The ARB also found that EPA's failure to respond to the White Paper was not actionable blacklisting.

ADVERSE ACTION; FAILURE OF RESPONDENT TO STAND UP FOR THE COMPLAINANT'S REPUTATION

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the Complainant was a microbiologist at the EPA's Office of Research and Development, but who was working at the time of the filing of the complaints under the Intergovernmental Personnel Act at the marine sciences department of the University of Georgia. The Complainant had been vocal about a lack of adequate research into the harmful effects of pathogens released during sludge fertilization, and was serving as an expert witness in a wrongful death case grounded in allegation that the death was related to sludge fertilization. In his environmental whistleblower complaint the Complainant alleged that the EPA engaged in adverse employment action when it failed to respond and defend him when the sludge fertilization company against whom the wrongful death action had been filed, the University of Georgia, and an advocacy group supporting the safety of sewage sludge sent letters to the EPA questioning the scope of the Complainant's IPA at the University. The Complainant argued on appeal that EPA's failure to respond harmed his scientific reputation and undermined his hope of obtaining a professorship at the University. The ARB, however, found no evidence that EPA's actions adversely affected the Complainant's work or standing at the University, noting also that there was no evidence that the University had offered him a position or even that the Complainant had ever applied for employment there.

ADVERSE ACTION; COMPLAINANT'S OPINION THAT THE RESPONDENT'S ACTIONS HARMED HIS PROFESSIONAL REPUTATION IS INSUFFICIENT, STANDING ALONE, TO DEMONSTRATE MATERIALLY ADVERSE EMPLOYMENT ACTION

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the Complainant alleged that the Respondent's failure to credit his research in a Federal Register notice responding to a Congressionally commissioned report of the National Academy of Sciences on the scientific basis for EPA Rule 503, and EPA's failure to fund two scientific projects he had proposed, were adverse employment action because such actions harmed his professional reputation. The ARB agreed with the ALJ that there was scant, if any, evidence to demonstrate that EPA's actions were based on the Complainant's criticism of Rule 503. Moreover, the Complainant offered only his opinion that such actions harmed his reputation among his peers, which was insufficient to demonstrate that EPA's actions were actually, or potentially, materially adverse.

AMENDMENT OF COMPLAINT BASED ON IMPLIED CONSENT OF THE PARTIES

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the Complainant alleged that the Respondent's failure to credit his research in a Federal Register notice responding to a Congressionally commissioned report of the National Academy of Sciences on the scientific basis for EPA Rule 503, and EPA's failure to fund two scientific projects he had proposed, were adverse employment action because such actions harmed his professional reputation. None of these actions were raised in the complaint or listed as an issue in the Complainant's prehearing statement. The ALJ, however, made findings and conclusions about these claims (finding against the Complainant), and the EPA did not raise an objection to the Complainant's raising of the issues. The ARB, therefore, found that the parties had consented to amendment of the complaint to include the claims. See 29 C.F.R. § 18.5(d); Roberts v. Marshall Durbin Co. , ARB Nos. 03-071 and 03-095, ALJ NO. 2002-STA-35, slip op. at 8-9 (ARB Aug. 6, 2004).

ADVERSE ACTION; DISTINCTION BETWEEN A CONTINUING VIOLATION AND A HOSTILE WORK ENVIRONMENT THEORY

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the Complainant on appeal argued that the ALJ had ignored his "hostile work environment" argument. The ARB carefully reviewed the record and found no allegation, statement or testimony asserting a hostile work environment claim. Rather, the ARB found that the Complainant had made a "continuing pattern" of discrimination argument. The ARB, therefore declined to consider the hostile work environment claim on appeal. In so ruling, the ARB described the difference between a hostile work environment and continuing violation case:

   But the "continuing violation doctrine" is not the same as the hostile work environment theory of liability. Until the U.S. Supreme Court held otherwise in [ Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 110, 114-15 (2002)], the "continuing violation doctrine" allowed a plaintiff to recover for discrete adverse actions that occurred outside of the limitations period if he could prove that these claims were "sufficiently related" to an adverse act that did occur within the limitations period. Hostile work environment claims, however, differ from claims involving discrete acts. Hostile work claims involve repeated harassment occurring over a period of time rather than adverse action that occurs on a particular day.

Lewis , supra , USDOL/OALJ Reporter at 23 (footnote omitted).

 

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Summary :

ALJ'S CREDIBILITY DETERMINATIONS NOT BASED ON DEMEANOR; IN AIR21 AND SOX CASES, SUCH DETERMINATIONS ARE REVIEWED UNDER THE SUBSTANTIAL EVIDENCE STANDARD RATHER THAN DE NOVO

In Walker v. American Airlines, Inc. , ARB No. 05-028, ALJ No. 2003-AIR-17 (ARB Mar. 30, 2007), the Complainant argued on appeal that the ARB should overturn the ALJ's credibility determinations. According to the Complainant, because the ALJ determination was not demeanor based it should be reviewed de novo. The ARB rejected the argument that de novo was the appropriate standard of review, noting that the caselaw cited by the Complainant was all from environmental whistleblower cases. In contrast, in AIR21 and SOX cases the ARB is required to review an ALJ's fact determinations under the substantial evidence standard. Because the ALJ's credibility determinations were not explicitly based on demeanor, the Board would not afford those determinations the "great deference" that a demeanor-based determination would receive. Nonetheless, because they were factual findings, the ARB was required to uphold them if supported by substantial evidence.

PROTECTED ACTIVITY; UNDER AIR21, THE PROVISION OF INFORMATION ABOUT SAFETY IS PROTECTED ONLY WHEN THE COMPLAINANT ACTUALLY BELIEVES IN THE EXISTENCE OF A VIOLATION

In Walker v. American Airlines, Inc. , ARB No. 05-028, ALJ No. 2003-AIR-17 (ARB Mar. 30, 2007), the Complainant, a level 4 maintenance supervisor, made a call to the Respondent's hotline primarily complaining about a change in policy regarding how overtime work would be credited, but also including a statement charging that several higher level supervisors had been intimidating the Complainant into signing off on tasks that had not been completed or were not safe just so they could get the plane out. The Complainant later signed a statement retracting the charge that the supervisors had been intimidating him. Following a hearing, the ALJ found that the Complainant had not had a good faith and reasonable basis for making the allegation about supervisor pressure to sign off on items. The ALJ's finding was largely based on credibility determinations, which the Complainant challenged on appeal, but which the ARB found were supported by substantial evidence. The ARB also affirmed the ALJ's finding that the hotline call was not protected activity because it was not made in good faith. Assuming for purposes of argument that the hotline call implicated safety, the ARB held that the provision of information is protected activity only when the complainant actually believes in the existence of a violation.

PROCEDURE BEFORE THE ARB; SPECIFICITY NECESSARY TO RAISE ASSIGNMENT OF ERROR; WAIVER OF ARGUMENTS RAISED IN PETITION FOR REVIEW BUT NOT DISCUSSED IN APPELLATE BRIEF

The ARB ruled in Walker v. American Airlines, Inc. , ARB No. 05-028, ALJ No. 2003-AIR-17 (ARB Mar. 30, 2007), that under the regulations implementing AIR21, a petition for review must specifically identify the findings, conclusions or orders to which exceptions are taken. 29 C.F.R. § 1979.110(a). General assignments of error do not meet this standard. Moreover, the ARB stated that it was disinclined to consider as argument passing references and commentary in the factual summary section of a petition. The ARB also stated that an argument raised in a petition but not discussed in a brief is considered abandoned and thereby waived.

 

 

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Summary :

MSPB; RECRUITER FOR FARM LABORER CONTRACTORS REQUIRED TO OBTAIN A CERTIFICATION OF REGISTRATION

In Gonzalez v. Administrator, Wage & Hour Div., USDOL , ARB No. 04-178, ALJ No. 2002-MSP-5 R and P (ARB Mar. 29, 2007), the ARB found that a civil money penalty of $500 was properly imposed on the Petitioner because he had performed farm labor contracting activities under the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) when he placed advertisements in U.S. newspapers seeking to recruit domestic, nonimmigrant workers on behalf of farm labor contractors, and admittedly had not obtained a Certificate of Registration prior to engaging in such activities. The Petitioner contended that he was not required to have a certificate because he was merely an agent for farm labor contractors. The ARB, however, observed that under the MSPA, which incorporate the meaning of the term "employ" found in the FLSA, Congress had expressly rejected the common-law definition of employment, and instead used the very broad "suffer or permit to work" standard. The ARB found that in the instant case, the farm labor contractors had suffered and permitted the Petitioner to work and compensated him for each person he contracted to work for them. Thus, the Petitioner had performed farm labor contracting activities on their behalf and was required to have a Certificate of Registration. In so ruling the ARB gave "enhanced deference" to the WHD Administrator's determination.

The ARB noted that the ALJ had properly concluded that whether the farm labor contractors had ultimately hired any domestic, nonimmigration U.S. workers was not relevant.

 

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Summary :

APPROVAL OF SETTLEMENT

In Willy v. The Coastal Corp. , ARB No. 06-090, ALJ No. 1985-CAA-1 (ARB Mar. 20, 2007), the ARB approved the parties' settlement and dismissed the complaint with prejudice. Noting that the parties' settlement included settlement of matters arising under laws other than those over which the DOL has jurisdiction, the ARB stated that it limited its review to the laws under its jurisdiction. The ARB construed certain confidentiality provisions of the settlement as not precluding the Complainant from communicating with federal or state enforcement agencies concerning alleged violations of law, construed the governing law provision as not limiting the authority of the Secretary of Labor and any Federal court, and notified the parties that the settlement becomes part of the record of the case and therefore subject to FOIA.

The Willy proceedings had a very long procedural history involving several DOL ALJs, the Secretary of Labor, the ARB, federal courts, and parallel proceedings in state court. Most recently, the Fifth Circuit had reversed the ARB's 2004 holding that attorney-client privilege mandated exclusion of evidence necessary to prove Willy's environment whistleblower complaint. The Fifth Circuit had remanded for the ARB to review the merits of the original holding of the ALJ and previous Secretary in light of the facts that they had before them when they rendered their final decisions.

 

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Summary :

TIMELINESS OF COMPLAINT; FILING OF STATE CLAIM COMPLETELY PREEMPTED BY AIR21 IS FILING OF PRECISE STATUTORY CLAIM SUFFICIENT TO INVOKE EQUITABLE TOLLING

In Turgeau v. The Nordam Group , ARB No. 04-005, ALJ No. 2003-AIR-41 (ARB Mar. 19, 2007), the ARB remanded the matter to OALJ for further adjudication in accordance with the decision of the 10th Circuit Court of Appeals in Turgeau v. Administrative Review Board, USDOL , 446 F.3d 1052 (2006). The ARB had accepted the ALJ's finding that the Complainant was not entitled to equitable tolling of the limitations period for filing his complaint because he did not file the precise statutory claim in state court. The Court of Appeals reversed, holding that because the ARB did not dispute a district court's holding that AIR 21 completely preempted the Complainant's state law claim, Tenth Circuit precedent �demand[ed] the conclusion that his state complaint did state the precise statutory claim as his later administrative complaint because his state claim was an AIR21 claim.� The court further held that �[t]he agency has waived any argument that there is any further analysis of petitioner's claim for equitable tolling to be done� and remanded the case for the application of equitable tolling. Slip op. at 1-2, quoting Turgeau , 446 F.3d at 1057-1058, 1061 (footnotes omitted).

 

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Summary :

APPROVAL OF SETTLEMENT

The ARB found in Estes v. First Express, Inc. , ARB No. 06-103, ALJ No. 2005-STA-28 (ARB Mar. 5, 2007), that the parties' settlement was "fair, adequate and reasonable and in the public interest."

 

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