USDOL/OALJ Reporter: ARB Decision Caselist -- March 2008

 

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Summary :

Case remanded where the ALJ failed to apply the "contributing factor" standard.

 

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[Nuclear & Environmental Whistleblower Digest XIV A 2 f ]
COVERED EMPLOYEE; COMPLAINANT ALLEGEDLY KNOWN TO THE RESPONDENT TO BE CONSIDERING APPLYING FOR EMPLOYMENT (IN THE INSTANT CASE, RUNNING FOR PAID OFFICE)

In Slavin v. City of St. Augustine, Florida , ARB No. 07-002, ALJ No. 2006-CER-4 (ARB Mar. 31, 2008), the Complainant claimed that the Respondents discriminated against him in violation of CERCLA after he reported to Federal authorities that the City of St. Augustine, Florida, had dumped hazardous material into a city reservoir. OSHA and the ALJ dismissed the complaint on the ground that the Complainant was not an employee. The Complainant argued that case law recognizes that employment applicants have cognizable claims under laws like CERLCA, and that his complaint should not be dismissed because the Respondents knew that he was considering running for City Commissioner, a paid position, and in fact he later filed to run for that position. The ARB agreed that its caselaw permits employment applicants to bring whistleblower actions under laws similar to the whistleblower provision of CERCLA, but dismissed the complaint because the Complainant had not filed (i.e., applied) to run for City Commissioner until three months after the alleged discrimination, and because no authority supported the proposition that CERCLA covers "perceived potential applicants."

 

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[Nuclear and Environmental Digest XVIII A 3]
WITHDRAWAL; STANDARD FOR DISMISSAL WITH OR WITHOUT PREJUDICE

In Saporito v. FedEx Kinko's Office and Print Services, Inc. , ARB No. 06-043, ALJ No. 2005-CAA-18 (ARB Mar. 31, 2008), a complaint filed under several environmental whistleblower laws, the ALJ erroneously treated the Complainant's withdrawal under the regulatory procedure for STAA whistleblower cases, in which the withdrawal is treated as a withdrawal of objections to the OSHA findings. In Part 24 cases, there is no such regulatory requirement, and the standard for dismissals under FRCP 41 is used instead. For the dismissal to be with prejudice, the opposing party must show that it would suffer legal harm or prejudice if the case was dismissed without prejudice. The mere prospect of a second lawsuit or a tactical gain by the opposing party, however, is not plain legal prejudice. Relevant factors include the effort and expense of trial preparation, excessive delay and lack of diligence by the complainant in prosecuting the action, insufficient explanation for the need to take a dismissal, and whether the respondent has filed a motion for summary judgment. In the instant case, the ARB found that a dismissal with prejudice was proper because the Respondent had been prejudiced. The Respondent had expended effort and expense in preparation of the case before the ALJ (including filing an answer to the complaint, affirmative defenses supported by affidavits, and a motion for enlargement of time). The Complainant had delayed and lacked diligence in responding to the ALJ's order to show cause about the timeliness of the complaint. Although previously advised by the ALJ to seek counsel, the Complainant's only explanation for the withdrawal was that he was at an "economic disadvantage" because he could not afford an attorney. Finally, the Complainant's motion to withdraw came at a late stage in the litigation, when he was facing a potential adverse ruling on the merits of his case.

 

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SOX ANALYSIS, GENERALLY

In Bechtel v. Competitive Technologies, Inc. , ARB No. 06-010, ALJ No. 2005-SOX-33 (ARB Mar. 26, 2008), the ARB remanded where the ALJ's decision, although thorough and mostly well reasoned, had applied the wrong legal standards under SOX, which was still a new law when the ALJ rendered her decision. The ARB summed up the proper analysis as follows:

the ALJ should determine whether Bechtel established by a preponderance of the evidence that his protected activity was a contributing factor in CTI's decision to fire him. If Bechtel meets his burden of proof, the ALJ should then determine whether CTI established by clear and convincing evidence that it would have taken unfavorable action against Bechtel absent his protected activity. If CTI meets this burden, then it will avoid liability under the SOX. If CTI does not, and providing that Bechtel has established his protected activity as a contributing factor of his discharge, then the ALJ should consider appropriate remedies under the SOX. See 18 U.S.C.A. § 1514A(c).

USDOL/OALJ Reporter at 7.

 

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WHETHER THE RESPONDENT IS REQUIRED TO ANSWER THE COMPLAINT FILED WITH OSHA AND A COMPLAINANT'S OBJECTIONS TO THE OSHA FINDINGS/REQUEST FOR HEARING

In Brady v. Direct Mail Management, Inc. , ARB No. 06-044, ALJ No. 2006-SOX-16 (ARB Mar. 26, 2008), it was undisputed that the complaint was not timely filed. Moreover, no grounds existed for equitable relief. The Complainant argued that the Respondent had waived its right to defend against the complaint because it had not answered the complaint filed with OSHA and had not responded to the Complainant's objections to the OSHA findings/request for hearing. The ARB affirmed the ALJ's grant of summary judgment against the Complainant, but clarified the analysis in regard to the waiver issue. The ARB held that the regulations make the filing of response to the complaint filed with OSHA, and to the objections/request for hearing, discretionary, not mandatory. See 29 C.F.R. §§ 1980.104(a), (c), 1980.106(a), (b). (The ALJ had held that OALJ's general rules of practice and the SOX procedural rules were inconsistent, and had not referenced the SOX rule about the filing of an answer to a complaint.) Finally, the ARB observed that OSHA had dismissed the complaint only eight days after it was filed on the ground of lack of timeliness, and held that "[w]here OSHA dismissed the complaint before the running of the time (20 days after notice) in which [the Respondent] would have had to respond to the complaint, [the Respondent] did not waive its right to defend against it." USDOL/OALJ Reporter at 7.

 

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Order denying the Complainant's motion for reconsideration where the motion was a mere rehashing of arguments already considered and rejected.

 

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[STAA Digest XI C 1]
VOLUNTARY NON-SUIT BASED ON RESPONDENT'S BANKRUPTCY; REGULATORY REQUIREMENT THAT OSHA FINDINGS BE AFFIRMED

In Burlile v. Cobra Trucking, JMK Line , ARB No. 08-023, ALJ No. 2006-STA-6 (ARB Mar. 18, 2008), following the Respondent's discharge in bankruptcy, the Complainant filed a "Notice on Nonsuit" with the ALJ, who construed it as a request to withdraw the complaint. On review, the ARB held that the non-suit based on the Respondent's bankruptcy was a voluntary dismissal, but that under § 1978.111(c), it was required to construe the request as a withdrawal of objections to the Secretary's preliminary findings and to affirm those findings.

 

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DISMISSAL FOR CAUSE; FAILURE TO FILE OPENING BRIEF OR RESPOND TO ARB'S ORDER TO SHOW CAUSE

In Pohl v United Airlines , ARB No. 06-122, ALJ No. 2003-AIR-16 (ARB Mar. 18, 2008), the ARB dismissed the Complainant's appeal where he failed to file an opening brief and did not respond to the ARB's order to show cause why the appeal should not be dismissed for failure to timely prosecute the appeal.

 

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Summary :

Order denying second motion for reconsideration.

 

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PROTECTED ACTIVITY; MUST RELATE TO A REGULATION OR ORDER, MUST BE SPECIFIC, AND MUST BE REASONABLY BELIEVED BY THE COMPLAINANT

To constitute protected activity under AIR21, a complainant's complaints must relate to a regulation or order, must be specific, and must be reasonably believed by the complainant. In Simpson v. United Parcel Service , ARB No. 06-065, ALJ No. 2005-AIR-31 (ARB Mar. 14, 2008), one of the Respondent's aircraft was taken out of service to correct a problem with the cabin pressurization system. After the Complainant and a co-worker reported that the system had been fixed, and signed the logbook to confirm the correction, the Complainant was found still working in the cockpit. She explained that there had been too many deferrals with that aircraft, and that something was "illegal." According to an acting supervisor, when pressed to explain, the Complainant did not point to anything in particular but just stated that something didn't feel right. The ARB held that this was not protected activity because the Complainant (1) was never able to indicate to any supervisor a concern related to a violation of any safety regulation or order other than the pressurization system problem which had already been corrected, (2) failed to communicate any specific safety defect that her employer could take corrective action on, and (3) did not demonstrate a reasonable belief that a violation of an air safety regulation or order existed given that she had signed off on the logbook.

ADVERSE EMPLOYMENT ACTION; WARNING LETTERS; COMPLAINANT MUST SHOW THAT LETTER AFFECTED TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT

Warning letters do not meet the adverse action requirement of the whistleblower statutes because they do not have any tangible job consequences. Written reprimands under a progressive discipline system do not have tangible job consequences and could lead to corrected performance. The burden rests on the complainant to demonstrate that the personnel action in question is adverse. The complainant must show that the warning letter affected the terms, conditions or privileges of employment. Simpson v. United Parcel Service , ARB No. 06-065, ALJ No. 2005-AIR-31 (ARB Mar. 14, 2008).

 

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Summary :

[Nuclear and Environmental Digest IX B 2]
ARB BRIEFING REQUIREMENTS; FAILURE TO FILE OPENING BRIEF

In Coupar v. Unicor (Federal Prison Industries) , ARB No. 05-108, ALJ No. 2005-WPC-2 (ARB Mar. 13, 2008), the ARB dismissed the Complainant's appeal where, although he was proceeding without counsel and was incarcerated, he had failed to file an opening brief despite having more than two and one-half years to do so.

 

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ARB BRIEFING REQUIREMENTS; DELIBERATE FAILURE TO COMPLY WITH DOUBLE-SPACING, FONT SIZE AND MARGIN SIZE REQUIREMENTS

In Evans v. Miami Valley Hospital and CJ Systems Aviation Group, Inc. , ARB Nos. 07-118, 07-121, ALJ No. 2006-AIR-22 (ARB Mar. 11, 2008), the ARB granted the Complainant's motion to strike one Respondent's rebuttal brief where that Respondent had previously been warned about failure to follow the ARB's briefing rules, but had nonetheless filed its rebuttal brief with about one-half the text in tiny print of single spaced footnotes, and the margins smaller than permitted by the briefing order. The ARB agreed with the Complainant that the brief demonstrated "outrageous disrespect to the Board and disregard for the integrity of the briefing process. It is cheating. It is quite obviously deliberate. It should not be overlooked or excused."

 

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Summary :

Erratum correcting caption.

 

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DISMISSAL FOR CAUSE; FAILURE TO FILE OPENING BRIEF OR RESPOND ADEQUATELY TO ARB'S ORDER TO SHOW CAUSE

In Zahara v. SLM Corp. , ARB No. 08-020, ALJ No. 2006-SOX-130 (ARB Mar. 7, 2008), the ARB dismissed the Complainant's appeal where he failed to file an opening brief or to timely request an extension of time to do so, and did not adequately respond to the ARB's order to show cause. The Complainant's attorney had filed a copy of an e-mail from the Complainant in which he asserted that he had not been aware of the ARB's briefing order, and that he had recently moved to a new address. The ARB found the response insufficient because even if the Complainant had not received the briefing order, his counsel had; the Complainant was obliged to inform the Board of his change of address; and the Complainant failed to explain how he timely received notice of the order to show cause but not the briefing order.

 

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