USDOL/OALJ Reporter: ARB Decision Caselist -- March 2009

 

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Summary :

COVERED EMPLOYER; AMERICAN MEDICAL ASSOCIATION

In Fleszar v. American Medical Association , ARB Nos. 07-091, 08-061, ALJ Nos., 2007-SOX-30, 2008-SOX-16 (ARB Mar. 31, 2009), the Complainant had brought two complaints against the American Medical Association (AMA) pursuant to the whistleblower provision of the SOX. In separate decisions, different ALJs dismissed the complaints on the ground that the AMA is not a publicly traded company. The ARB agreed, finding it "uncontroverted that the AMA is a not-for-profit company that does not issue securities that are registered under Section 12 or file reports under Section 15(d) [and therefore] it is not subject to the whistleblower protection provision of the SOX." The ARB addressed, and rejected, the Complainant's arguments that the AMA was covered because (1) it had filed documents with the SEC, (2) it engaged in commercial transactions, and (3) it had owned an investment company. The ARB found that the AMA's filings with the SEC relating to its retirement plan did not create coverage; that a non-profit's contractual relationships with publicly traded companies and government entities did not create coverage; that the AMA had divested itself of the investment company prior to the enactment of the SOX; and that the investment company was never the Complainant's employer.

 

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Summary :

COVERAGE; HELICOPTER REPAIR; COMPLAINANT'S BURDEN TO PROVE COVERAGE BY PREPONDERANCE OF THE EVIDENCE

In LeRoy v. Keystone Helicopter, Inc. , ARB No. 07-056, ALJ Nos. 2006-AIR-3 and 24 (ARB Mar. 31, 2009), following two hearings on the Complainant's AIR21 whistleblower complaint the Respondent raised the issue of coverage in a post-hearing brief. The Complainant responded with the argument that the Respondent had waived the issue of coverage, pursuant to the Supreme Court's ruling in Arbaugh v. Y&H Corp. , 546 U.S. 500 (2006), because the Respondent had not raised the coverage issue at the first hearing. In Arbaugh the Court had ruled that when an employer seeks to defend against a Title VII claim on the basis that it is not covered because it does not employ 15 or more persons, it must do so by pleading or filing a motion to dismiss under FRCP 12(b)(6), failure to state a claim � not by pleading or moving to dismiss under FRCP 12(b)(1), lack of subject matter jurisdiction. A 12(b)(6) motion must be filed no later than the conclusion of the trial on the merits.

The ARB rejected the waiver argument because the Respondent had not filed a motion to dismiss, but merely argued in a post-hearing brief that the Complainant had not adduced sufficient evidence that the Respondent was an AIR 21 covered employer. The ARB declined to construe " Arbaugh , as applied to AIR 21, to mean that an employer waives the right to argue to the ALJ after an evidentiary hearing that the complainant did not sufficiently prove an essential element of his claim...."

Nothing in the record showed that the Respondent engaged in the air transportation of passengers for compensation or contracts with air carriers to do so. The ARB stated that while helicopter repair is undoubtedly a safety sensitive function, the record contained no evidence that the Respondent's repair contracts on which the Complainant worked were made with air carriers.

 

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Summary :

[STAA Digest XI B 1]
DISMISSAL FOR CAUSE; ABANDONMENT

In Bowens v. Infrastructure , ARB No. 08-073, ALJ No. 2008-STA-17 (ARB Mar. 30, 2009), the complaint was dismissed based on abandonment. The Complainant failed to file a prehearing statement, failed to respond to requests for discovery, failed to respond to the ALJ's order to show cause and the Respondent's motion to dismiss, and failed to make himself available for a prehearing conference.

 

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Summary :

[Nuclear and Environmental Digest XVI F]
PUNITIVE DAMAGES; IMMUNITY OF MUNICIPALITY

In Collins v. Village of Lynchburg, Ohio , ARB No. 07-079, ALJ No. 2006-SDW-3 (ARB Mar. 30, 2009), the ARB affirmed the ALJ's finding that the Respondent had violated the whistleblower provision of the SDWA where it fired the Complainant two hours after learning that he had called the state EPA office about whether a proper procedure had been followed for a bacteria test for the village's water supply, and the Respondent failed to provide a legitimate, non-discriminatory reason for the firing. The ARB, however, reversed the ALJ's award of punitive damages because, although the SDWA permits exemplary damages, the Respondent was a municipality that was immune from liability for punitive damages. The ARB cited in this regard Newport v. Fact Concerts, Inc. , 453 U.S. 247, 270-271 (1981) (holding that in action brought under 42 U.S.C.A. � 1983, a municipality is immune from punitive damages)

 

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Summary :

Denial of reconsideration where Complainant merely reiterated an argument previously made and rejected.

 

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Summary :

Substantial evidence supported the ALJ's finding that the Complainant was fired for insubordination, and not for his protected activity.

 

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Summary :

Complaint dismissed based on abandonment.

 

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Summary :

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING BASED ON FILING IN WRONG FORUM; FILING MUST HAVE RAISED STAA EMPLOYEE PROTECTION ISSUE, NOT MERELY COMPLAINT ABOUT DOT VIOLATIONS

In Trammell v. New Prime, Inc. , ARB No. 07-109, ALJ No. 2007-STA-18 (ARB Mar. 27, 2009), the ARB held that the Complainant was not entitled to equitable tolling of his untimely STAA whistleblower complaint based on his raising the precise statutory claim in issue but mistakenly in the wrong forum, where the Complainant had only complained to the DOT about violations of DOT regulations, and not about the STAA's employee protection provisions.

 

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Summary :

Complainant failed to establish that he engaged in protected activity.

 

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Summary :

Because the Department has not yet issued regulations governing Federal Rail Safety Act whistleblower complaints, the ALJ forwarded his decision to the ARB for possible review. The ARB issued an order requiring the filing of a petition for review if a party wished the ARB to review the ALJ's decision. Since the ARB did not receive any petitions in response, it closed the case, and designated the ALJ's decision as the Secretary's final order in the matter.

 

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[STAA Digest IV A 2 c]
CAUSATION; COMPLAINANT FIRED FOR HIS BEHAVIOR RATHER THAN BECAUSE HE RAISED A SAFETY ISSUE

In Formella v. Schnidt Cartage, Inc. , ARB No. 08-050, ALJ No. 2006-STA-35 (ARB Mar. 19, 2009), the Plaintiff engaged in protected activity under the STAA when he told company officials that he could not drive the assigned truck, because he had an objectively reasonable apprehension that unmatched tire treads could cause him to lose control of the truck. However, the ARB found that substantial evidence supported the ALJ's finding that the Complainant was provocative, intemperate, volatile, and antagonistic, and that he had been fired for this behavior rather than the protected activity. The ARB noted that the ALJ had been aware of, and cited the caselaw that provides that under certain circumstances, a whistleblower must be afforded leeway in presenting his safety concerns. Nonetheless, substantial evidence supported the ALJ's conclusion that the Complainant's behavior crossed the line of permissible behavior.

 

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Summary :

Approval of settlement agreement.

 

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Summary :

Substantial evidence supported the ALJ's finding that the Respondnent terminated the Complainant as part of a necessary reduction in force, not for his protected activity.

 

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Summary :

[Nuclear and Environmental Digest IX B 2]
TIMELINESS OF INITIAL APPELLATE BRIEF; ATTORNEY'S LACK OF GOOD FAITH IN EXPLAINING FAILURE TO FILE BRIEF IN COMPLIANCE WITH PLAIN LANGUAGE IN ARB BRIEFING ORDER SETTING DUE DATE

In Ellison v. Washington Demilitarization Co. , ARB No. 08-119, ALJ No. 2005-CAA-9 (ARB Mar. 16, 2009), the ARB dismissed an appeal based on the Complainant's attorney's failure to timely file the Complainant's initial brief, and because the attorney's "rationalization for his failure to timely file the brief was not proffered in good faith...." The attorney had submitted the brief with a service list that did not show the actual date of service, but only a statement that it would be delivered within five days of the date that the ARB's briefing ordered specified as the filing date. The mailing envelope indicated that the brief was sent the fourth date after its due date. The Respondent filed a motion to strike, and the ARB issued an Order to Show Cause, signed by the Board's General Counsel on behalf of the Board, why the brief should not be striken as untimely.

In response, the attorney argued that the ARB's General Counsel was mistaken as the applicable procedure, and that the OALJ Rules of Practice and Procedure applied to make the filing timely, regardless of the terms of the ARB briefing order. The attorney accused the Board of prematurely determining the timeliness of the brief, and requested that any ARB member or staff involved in drafting the order to show cause recuse themselves, make a full disclosure to the Complainant about their involvement, and make a full disclosure of any communications with the Respondent about the matter.

The Board found that it was not credible that the attorney genuinely and reasonably believed that the certificate of service did not need to show the date of remittal of the brief but only to state that the attorney expected it to be delivered within five days of the filing date -- or that the ALJ regulations gave the Complainant an additional five days to make the filing. In this regard, the ARB noted that the attorney had extensive litigating experience before the Board, and pointed out several instances showing that the attorney had not previously operated under this belief. Moreover, the ARB noted that the attorney had in a previous appeal failed to file a timely brief resulting in dismissal of his client's appeal. The Board flatly rejected the attorney's imputation that the ARB's General Counsel or the Board members had impermissibly prejudged the case. The Board also noted that even if the ALJ rules applied as suggested by the attorney, the brief would not have been timely as it was not actually received by the Board until the sixth day following the filing date set in the briefing order.

 

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Summary :

[STAA Digest VI B 4]
ADVERSE ACTION; POLICY REGARDING USE OF VACATION DAYS FOR ILLNESS IF SICK LEAVE IS EXHAUSTED

In Wood v. Aggregate Industries , ARB No. 08-082, ALJ No. 2008-STA-25 (ARB Mar. 16, 2009), the ARB found that the ALJ properly granted summary decision against the Complainant where the complaint was grounded in the contention that the Respondent violated the STAA because the Respondent's leave policy required him to use a vacation day on a day he was absent due to illness (the Employer's policy being that personal or vacation days must be used for an illness if the employee has exhausted available sick leave). The ALJ found that the Complainant failed to establish that he had been subjected to adverse employment action, and that without proof of that essential element of a whistleblower case, the other issues in the case were immaterial. The ALJ found that use of a paid vacation day for an illness-related absence is not a tangible employment action that caused a significant change in the Complainant's employment status or benefits. Moreover, there was no allegation that the Complainant was otherwise disciplined for his absence or that points were assessed against him or that he received a verbal or written warning under the Respondent's discipline system. There was no allegation that the Complainant lost wages at the time of his absence or thereafter as a result of using a vacation day. Finally, there was no evidence that the Respondent applied its "Time Off Policy" or "Working Rules of Conduct and Performance" to the Complainant in a discriminatory manner that violated the STAA.

 

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Summary :

DISMISSAL BASED ON FILING OF NOTICE OF INTENT TO FILE SOX ACTION IN FEDERAL COURT; BAD FAITH NOT SHOWN

In Moldauer v. Constellation Brands, Inc. , ARB No. 09-042, ALJ No. 2008-SOX-73 (ARB Mar. 9, 2009), the ARB dismissed the appeal based on the Complainant's notice pursuant to 29 C.F.R. § 1980.114 of intent to file a SOX action in federal court. The Respondent opposed dismissal of the ARB appeal based on a contention that the Complainant had delayed the ALJ hearing in bad faith by failing to respond timely to an order to show cause issued by the ALJ, and in "improvident" motion to stay the ALJ proceeding. The ARB found no authority to support the contention that a pro se's complainant's failure to respond to a single order and single improvident filing constituted bad faith.

 

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