USDOL/OALJ Reporter: ARB Decision Caselist - March 2012

INDIVIDUAL LIABILITY OF CORPORATE EMPLOYEE UNDER THE H-1B REGULATIONS; REFERENCE TO STATE LAW TO DETERMINE WHETHER IT IS APPROPRIATE TO PIERCE THE CORPORATE VEIL

In Baiju v. Fifth Avenue Committee , ARB No. 10-094, ALJ No. 2009-LCA-45 (ARB Mar. 30, 2012) (reissued Apr. 4, 2012), the Prosecuting Party was the H-1B worker who originally filed a complaint with the Wage and Hour Division. On appeal to the ARB, the Prosecuting Party argued that the ALJ erred in dismissing the Respondent's executive director as a party, contending that the executive director should be personally liable. The ARB found that the ALJ properly applied state law on the question of whether it was appropriate to pierce the corporate veil. The ARB found that the ALJ properly concluded under New York law � which generally requires a showing of "complete domination" to pierce the corporate veil � that the executive director's managerial role with authority to hire, fire, and set wage rates, did not make her personally liable and was not sufficient to show that she exercised complete control over the corporation.

RECUSAL; ALJ DID NOT ABUSE HER DISCRETION IN NOT RECUSING HERSELF BASED ON A PRIOR ASSOCIATION WITH ONE OF THE RESPONDENT'S ATTORNEYS WHERE THE ASSOCIATION WAS REMOTE IN TIME AND CHARACTER, AND THE COMPLAINANT DID NOT TIMELY OBJECT

In Baiju v. Fifth Avenue Committee , ARB No. 10-094, ALJ No. 2009-LCA-45 (ARB Mar. 30, 2012)(reissued Apr. 4, 2012), the Prosecuting Party was the H-1B worker who originally filed a complaint with the Wage and Hour Division. On appeal to the ARB, the Prosecuting Party challenged the ALJ's decision not to recuse herself because one of the Respondent's attorneys was the ALJ's husband's college roommate and had met the ALJ before. The ALJ had denied the Prosecuting Party's request that the ALJ recuse herself, because her association with the attorney at issue was too remote in time and character, because the Prosecuting Party stated that he did not object to her hearing the case when he became aware of the association, and because the attorney was not a party to the case. The ARB reviewed the ALJ's decision not to recuse on an abuse of discretion standard, and found that she had not abused that discretion.

WAGE DETERMINATION MADE BY ETA AT REQUEST OF WHD DURING H-1B LCA INVESTIGATION; RESPONDENT NOT REQUIRED TO PAY HIGHER WAGE DETERMINATION MADE IN SEPARATE PERM APPLICATION

In Baiju v. Fifth Avenue Committee , ARB No. 10-094, ALJ No. 2009-LCA-45 (ARB Mar. 30, 2012)(reissued Apr. 4, 2012), the Prosecuting Party was the H-1B worker who originally filed a complaint with the Wage and Hour Division. On appeal to the ARB, the Prosecuting Party argued that the ALJ erred in ruling that the Respondent was not required to pay the Prosecuting Party the wage rate determined by the State of New York on the Respondent's application on behalf of the Prosecuting Party for permanent alien labor certification ("PERM") filed after the H-1B application.

In the instant case, the WHD found that the documentation supporting a survey used by the Respondent when filing the H-1B LCA application was insufficient, and therefore requested a wage determination by the Employment and Training Administration, as provided for under 20 C.F.R. § 655.840(c). The ALJ found that the Prosecuting Party had not timely challenged ETA's wage determination and that under the regulations the ALJ had no authority to review that wage determination. The ALJ also found that a separate wage determination made for the PERM application was not applicable to the Employer's H-1B wage obligations "because it was issued in conjunction with [a] distinct and separate petition for permanent labor certification." The ALJ also found that the WHD's request for a wage determination was warranted. The ARB affirmed the ALJ's determination both on the facts and the law.

BONA FIDE TERMINATION; EMPLOYER IS ONLY REQUIRED TO OFFER PAYMENT OF TRANSPORTATION HOME; EMPLOYEE'S NONACCEPTANCE OF OFFER DOES NOT NEGATE COMPLIANCE WITH THIS ELEMENT

BONA FIDE TERMINATION; EMPLOYER IS ONLY REQUIRED TO NOTIFY USCIS OF TERMINATION; NO REQUIREMENT OF PROOF THAT USCIS ACTUALLY CANCELLED THE LCA

To effect a bona fide termination, an employer must (1) give notice of the termination to the H-1B worker, (2) give notice to the Department of Homeland Security (USCIS), and (3) under certain circumstances, provide the H-1B non-immigrant with payment for transportation home. Nonacceptance of the offer of the cost of return transportation, does not affect whether a bona fide termination was completed. Moreover, notice to USCIS is all that is required to fulfill the notice requirement for effecting a bona fide termination; there is no requirement that USCIS cancel the LCA for a termination to be bona fide. Baiju v. Fifth Avenue Committee , ARB No. 10-094, ALJ No. 2009-LCA-45 (ARB Mar. 30, 2012)(reissued Apr. 4, 2012).

The ARB found that substantial evidence supported the ALJ's finding that the Complainant quit his job with the Respondent and was not terminated as a result of protected activity.

ADVERSE ACTION; QUESTION OF WHETHER COMPLAINANT WAS FIRED OR VOLUNTARILY RESIGNED; MINNE AND KLOSTERMAN APPLY IN AN AIR21 CASE

In Nagle v. Unified Turbines, Inc. , ARB No. 11-004, ALJ No. 2009-AIR-24 (ARB Mar. 30, 2012), the ALJ concluded that the Complainant's assumption that the Respondent had terminated his employment was not objectively reasonable, and that the Complainant voluntarily resigned. In drawing this conclusion, the ALJ applied Vermont law. The ARB, however, ruled that caselaw developed under the whistleblower provision of the STAA � which essentially mirrors the provisions of AIR21 � should have been applied. See Minne v. Star Air, Inc. , ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007) and Klosterman v. E.J. Davies, Inc. , ARB No. 08-035, ALJ No. 2007-STA-19 (ARB Sept. 30, 2010). The ARB wrote:

In these cases, "discharge" has been interpreted to include the situation where the employment relationship "was ended by one-sided or perhaps mutual assumption by the parties � i.e., by means of behavior from which the parties deduced that the employment relationship was at an end." In the absence of an actual resignation by the employee, "an employer who decides to interpret an employee's actions as a quit or resignation has in fact decided to discharge that employee." Minne , ARB No. 05-005, slip op. at 14 (footnotes omitted). The determination on remand may require additional findings of fact as it is unclear from the D. & O. what importance the ALJ gave to the evidence that [the Complainant] called [one of the Respondents' owners] to discuss his continued employment, that [the owner] did not call him back, and that, during the OSHA investigation, [the owner] denied that [the Complainant] called him. The ALJ also did not analyze the importance of the evidence that [one of the Complainant's coworkers] told [the owner] that [the Complainant] believed he was fired and that [the owner] took no action when he learned that [the Complainant] believed he was fired. ...

USDOL/OALJ Reporter at 5 (footnote omitted).

PROTECTED ACTIVITY; COMPLAINT ABOUT CO-WORKER'S DRUG ABUSE

Where the work involves safety-sensitive functions, a complainant engages in protected activity under the AIR21 whistleblower provision when complaining to management about a co-worker's drug abuse on the job. FAA regulations contain extensive drug testing provisions and prohibitions pertaining to illegal drug use by aviation industry workers who perform "safety-sensitive" functions. Nagle v. Unified Turbines, Inc. , ARB No. 11-004, ALJ No. 2009-AIR-24 (ARB Mar. 30, 2012).

EQUITABLE TOLLING FOUND NOT TO BE WARRANTED WHERE THE COMPLAINANT'S FAILURE TO FILE HIS SOX COMPLAINT TIMELY WAS ATTRIBUTABLE TO HIS MISUNDERSTANDING OF WHEN THE CLAIM ACCRUED RATHER THAN HIS MEDICAL CONDITION

In Reid v. The Boeing Co. , ARB No. 10-110, ALJ No. 2009-SOX-27 (ARB Mar. 30, 2012), the ARB affirmed the ALJ's findings that the Complainant's SOX complaint was not timely and that sufficient grounds for equitable tolling was not established. The Complainant presented his treating psychologist's opinion that his medical condition prevented the timely filing of the SOX complaint. The ARB found that the ALJ ultimately concluded that it was the mistaken understanding of the law rather than the medical condition that caused the untimely filing. Specifically, both the Complainant and his wife testified that they believed that the Complainant did not have a SOX whistleblower claim unless and until the Respondent fired him. The ARB noted that ignorance of the law is generally not a factor warranting equitable modification.

[Nuclear and Environmental Digest XIV A 2 d]

COVERED EMPLOYEE; ENGINEER WHO FOUNDED A COMPANY THAT PROVIDES PERSONAL SERVICES TO THE NUCLEAR INDUSTRY; ARB FINDS THAT HILL AND OTTNEY INDICATES THAT SUCH AN ENGINEER IS AN EMPLOYEE UNDER THE PROPERLY BROAD INTERPRETATION OF THE ERA; ARB QUESTIONS WHETHER DEMSKI WAS PROPERLY DECIDED

In Robinson v. Triconex Corp. , ARB No. 10-013, ALJ No. 2006-ERA-31 (ARB Mar. 28, 2012), the ARB � describing the facts in the light most favorable to the Complainant for purposes of reviewing the ALJ's grant of summary decision � found that the Complainant was a nuclear engineer with extensive experience in the nuclear industry. He provided nuclear quality engineering services to clients as of a company that he operated with this wife. The Respondent was a company that supplies products, systems, and services as a subcontractor. The Complainant provided services to the Respondent at a nuclear power plant pursuant to an "Associate Supplier Master Service Agreement" that the Complainant, as President of his company, entered into with TAC Worldwide (TAC). The ARB found that the Complainant had been hired on June 1, 2004, as a nuclear quality assurance engineer to support the Respondent's Quality Assurance programs. In August 2005, the Complainant was involved in directing the test engineer to temporarily suspend testing, and in September 2005, the Complainant was terminated. The next month, TAC terminated its contract with the Complainant for provision of services to the Respondent.

The Complainant filed a complaint with OSHA under the ERA whistleblower provision, and a state court action for wrongful termination and other claims. In the state proceedings, the courts found on summary judgment that the Complainant's was not an employee of the Respondent. The state court of appeals based its decision on the Supreme Court's Darden common law agency test and analogized the Complainant's circumstances to those discussed in Demski v. Dept. of Labor , 419 F.3d 488 (6th Cir. 2005).

The DOL ALJ, applying the doctrine of collateral estoppel, later granted partial summary decision in favor of the Respondent on the issue of whether there was a common law master-servant relationship between the Respondent and the Complainant. The ALJ later issued a second summary decision in favor of the Respondent based on her finding that the Complainant was not an employee of a contractor of the Respondent.

On appeal, the ARB noted that federal courts have interpreted the ERA broadly to effectuate its protective and remedial purposes, and that the ARB had developed distinct approaches for determining when a complainant is an "employee" for purposes of qualifying for whistleblower protection under the ERA. The ARB found that the correct approach for the instant case was the statutory textual analysis explained in Hill and Ottney v. TVA , 1987-ERA-23 and 24 (Sec'y May 24, 1989). [The other test is the "right to control" test developed under the Clean Air Act.] In Hill and Ottney the Secretary determined that under the ERA "any employee" could file a whistleblower claim against "any person," presumably any "employer" covered by the ERA whistleblower statute. The ARB stated that the Secretary made it clear that the ERA did not require an "employee-employer relationship" nor proof of the employer's "right to control" the complainants. The ARB found that the facts of the case suggested that when he was terminated, the Complainant was working as a quality assurance worker and would thus qualify as an employee under the ERA. The ARB, however, remanded the issue to the ALJ to make appropriate findings of fact in the first instance. The ARB also found that collateral estoppel did not preclude a determination that the Complainant was an employee under the ERA's whistleblower provision because the jurisprudence under the ERA whistleblower provision was distinct from the Darden common-law agency test upon which the California court relied.

In Demski v. Ind. Mich. Power Co. , ARB No. 02-084, ALJ No. 2001-ERA-35 (ARB Apr. 9, 2004), aff'd Demski v. Dept. of Labor , 419 F.3d 488 (6th Cir. 2005), the ARB concluded that because the complainant was an owner of the subcontracting company, not an employee, she was not a protected employee within the meaning of the ERA. The ARB recognized that the ALJ was bound by Demski if it was controlling, but noted that Demski arose in the Sixth Circuit and that the instant case did not arise in that circuit, and held that "[i]f the ALJ finds that Robinson is an employee under Hill and Ottney , then Demski will be irrelevant." The ARB continued:

Therefore, we reserve for another day whether the holding in Demski bars Robinson from protection under the ERA whistleblower statute. Nevertheless, we question the viability of Demski' s overly narrow interpretation of the term "employee" in the ERA whistleblower provision. Arguably, our precedent in Demski creates a "narrow, hyper-technical reading of the [ERA]" that runs afoul of the plain language of the statute and Kansas Gas & Electric . It also creates coverage issues that suggests an individual can be a covered employee one day at the work-site as an "independent contractor" or quality assurance worker but lose his or her coverage by coming back the next day to do the same exact work as the president or officer of a subcontracting company. Under the broad interpretation explained in Hill and Ottney , any on-site worker or any nuclear quality assurance worker is covered.

USDOL/OALJ Reporter at 12 (footnotes omitted).

PROTECTED ACTIVITY; COVERAGE UNDER CPSIA IS NOT LIMITED TO "CONSUMER PRODUCTS" AND IS NOT LIMITED TO MATTERS STRICTLY UNDER THE JURISDICTION OF THE CONSUMER PRODUCTS SAFETY COMMISSION

In Saporito v. Publix Super Markets, Inc. , ARB No. 10-073, ALJ No. 2010-CPS-1 (ARB Mar. 28, 2012), the Respondent was a supermarket chain that operated a dairy plant at which the Complainant was employed as a maintenance technician. The Complainant complained to supervisors that the outside contact surfaces of plastic milk bottles, and the containers used to carry the plastic milk bottles, were being contaminated with harmful chemicals and waste from the conveyor system and failure to maintain proper pressurization of the milk filling room. The Complainant filed a whistleblower complaint under the Consumer Product Safety Improvement Act of 2008 (CPSIA or Act), 15 U.S.C.A. § 2087, alleging a hostile work environment. Later, when fired, the Complainant amended his complaint alleging that the discharge was due to protected activity.

After issuing a order to show cause requiring the Complainant to establish that (1) his complaints related to "covered consumer products" and (2) each named Respondents is a "manufacturer, distributer, retailer, or labeler of consumer products," the ALJ dismissed the complaint based on failure to state a claim upon which relief may be granted.

CPSIA's coverage is not limited to regulation of "consumer products"

The ARB found that the ALJ erred in requiring the Complainant to show that his complaints were related to "consumer products" as defined by the Act. The ARB wrote:

    For proper context, it is important to recognize the expressed purposes of the Consumer Product Safety Improvement Act, which contains the whistleblower provision relevant to this case. Pursuant to the Consumer Product Safety Act (CPSA), 15 U.S.C.A. §§ 2051 (Thomson Reuters/West 2009), as amended by the CPSIA, Congress found that "an unacceptable number of consumer products which present unreasonable risks of injury are distributed in commerce" and that "the public should be protected from theses unreasonable risks." 15 U.S.C.A. §§ 2051(a)(1), (2). Logically, then, one of the CPSA's expressed "purposes" is to "protect the public against unreasonable risks of injury associated with consumer products." 15 U.S.C.A. §§ 2051(b). The statute and regulations generally define the term "consumer product" to include any article or portion of an article sold to consumers for the use or personal use, consumption, or enjoyment in a household, residence, or school. 15 U.S.C.A. §§ 2052(a)(5). The CPSIA expressly excludes "food" from the definition of "consumer product," as "food" is defined under the Federal Food, Drug, and Cosmetics Act (FFDCA) at 21 U.S.C.A. §§ 321(f) (Thomson Reuters/West 2009).

    The CPSA established a Consumer Product Safety Commission (the Commission) in furtherance of these goals. The CPSA, as amended by the CPSIA, empowers the Commission to enforce the CPSA and the CPSIA, along with any other federal act Congress has added to the Commission's oversight authority, resulting in a labyrinth of enforcement power. For instance, the Commission also enforces the Federal Hazardous Substances Act (FHSA), 15 U.S.C.A. §§ 1261 et seq . (Thomson Reuters/West 2009), and the Poison Prevention Packaging Act (PPPA), 15 U.S.C.A. §§ 1471 et seq . (Thomson Reuters/West 2009). Under the PPPA, the Commission regulates packaging of "household substance[s]" which can include "food" as defined under the FFDCA at 21 U.S.C.A. §§ 321(f). Under the FHSA, the Commission regulates "hazardous substances," a term not restricted to "consumer products" and which includes household substances that expose children to a hazardous quantity of lead (e.g., candy wrappers). Clearly, the Commission's power extends beyond the regulation of "consumer products."

USDOL/OALJ Reporter at 4-5 (footnotes omitted).

CPSC's jurisdiction; reasonable belief

The ARB found that the ALJ also committed legal error in basing his dismissal on a finding that none of the Complainant's complaints fell within the Consumer Product Safety Commission's jurisdiction. The ARB wrote:

    The ALJ erred in focusing strictly on the limit of the Commission's jurisdiction. The ALJ plausibly reasoned that if the Commission did not have jurisdiction at the time of Saporito's disclosure, then Saporito's disclosure or complaint was not protected activity under the CPSIA whistleblower provision. But limiting CPSIA-protected activity coverage entirely to the CPSC's jurisdiction leaves out a critical part of the CPSIA definition of protected activity: reasonable belief.

    The CPSIA broadly defines protected disclosures to include disclosures "relating" to employer conduct that the employee " reasonably believes to be a violation of any provision of [the CPSIA] or any Act enforced by the Commission . . . ." 15 U.S.C.A. §§ 2087(a)(1) (emphasis added). The CPSIA's plain language allows the complainant to be wrong as long as he held a reasonable belief of a violation of the Act or other act enforced by the Commission. The Act does not define "reasonable belief." Historically, the ARB has interpreted the concept of "reasonable belief" to require both a subjectively and objectively reasonable belief. A subjectively reasonable belief means that the employee actually believed that the conduct he complained of constituted a violation of relevant law. See, e.g., Harp v. Charter Commc'ns , 558 F.3d 722, 723 (7th Cir. 2009) (not a CPSIA case). An objectively reasonable belief means that a reasonable person would have held the same belief having the same information, knowledge, training, and experience as the complainant. Harp, 558 F.3d at 723. Often the issue of "objective reasonableness" involves factual issues and cannot be decided in the absence of an adjudicatory hearing. See, e.g., Allen v. Admin. Review Bd., 514 F.3d 468, 477-478 (5th Cir. 2008) ("the objective reasonableness of an employee's belief cannot be decided as a matter of law if there is a genuine issue of material fact"). Nowhere did the ALJ address the issue of reasonable belief in resolving his Order to Show Cause.

USDOL/OALJ Reporter at 6-7 (footnotes omitted).

DISMISSAL GROUNDED IN ALJ'S SUA SPONTE ORDER TO SHOW CAUSE RATHER THAN MOTION FILED BY RESPONDENT; DUE PROCESS AND ADEQUACY OF NOTICE OF ULTIMATE GROUND FOR DISMISSAL

PROTECTED ACTIVITY; CPSIA ONLY REQUIRES THAT THE COMPLAINANT HAD A REASONABLE BELIEF OF VIOLATION, AND DOES NOT REQUIRE A REASONABLE BELIEF OF HARM

In Saporito v. Publix Super Markets, Inc. , ARB No. 10-073, ALJ No. 2010-CPS-1 (ARB Mar. 28, 2012), the Respondent was a supermarket chain that operated a dairy plant. The Complainant, a maintenance technician, complained to supervisors that the outside contact surfaces of plastic milk bottles, and the containers used to carry the plastic milk bottles, were being contaminated with harmful chemicals and waste from the conveyor system and failure to maintain proper pressurization of the milk filling room. The Complainant filed a whistleblower complaint under the Consumer Product Safety Improvement Act of 2008 (CPSIA or Act), 15 U.S.C.A. § 2087. OSHA dismissed on the ground that food safety complaints were not covered under the CPSIA.

Upon the Complainant request for a hearing, the presiding ALJ issued an order to show cause requiring the Complainant to establish that (1) his complaints related to "covered consumer products" and (2) each named Respondents is a "manufacturer, distributer, retailer, or labeler of consumer products." Nothing further was required by the ALJ's order. The ALJ dismissed the complaint based on failure to state a claim upon which relief may be granted. The ARB found that the matter must be remanded because the ALJ erred in concluding that CPSIA coverage was limited to "consumer products," but went on to address other errors.

In part, the ALJ's dismissal was based on his finding that the Complainant's complaints were not protected because they were speculative. The Complainant had only alleged that milk containers "could" be contaminated and "could" reach and "possibly" or "would" injure consumers.

The ARB found that the order to show cause had given no indication that the ALJ would consider whether the complaints were too speculative to constitute protected activity, and therefore as a matter of due process dismissal on this ground could not be affirmed, and the matter needed to be remanded for further proceedings.

The ARB recognized that the ALJ in order to avoid being an advocate for the Respondent, could not elaborate too much in an order to show cause, and observed that the "need for caution makes orders to show cause less effective than a party's motion for summary decision, where the party can fully and fiercely advocate and flesh out the grounds for dismissal." USDOL/OALJ Reporter at n.28. The ALJ's caution, however, did not alleviate the due process concerns where the order to show cause gave no indication that the issue would be considered.

The ARB also noted that the ALJ's ruling conflated the Complainant's speculation as to potential harm with speculation as to a violation, and observed that the CPSIA requires reasonable belief of a violation and does not expressly require reasonable belief of harm.

FRSA whistleblower complaint dismissed based on notice from the Complainant that he intended to file an original action in U.S. district court as as authorized by 49 U.S.C.A. � 20109(d)(3).

PROTECTED ACTIVITY; COMPLAINANT IS NOT REQUIRED TO ESTABLISH FRAUD OR ACTUAL VIOLATION TO MEET REASONABLE BELIEF ELEMENT OF SOX SECTION 806 COMPLAINT

In Zinn v. American Commercial Lines Inc. , ARB No. 10-029, ALJ No. 2009-SOX-25 (ARB Mar. 28, 2012), the Respondent's business included transportation of various industrial products by barges on waterways using its own or hired tugboats. The Complainant, hired as a corporate attorney, alleged protected activity under SOX Section 806 based on (1) her raising a concern that the Respondent's report in its 10-K Form that it had been upholding safety might be a misrepresentation in view of incident reports indicating that one of its vendors used unlicensed tugboat personnel, and (2) her raising a concern that the Respondent should have filed a Form 8-K announcing the company's appointment of a new general counsel and senior vice president. The ALJ found that this was not protected activity under SOX. The ARB found that the ALJ's conclusions were legal error. The ALJ had determined that the Complainant failed to show that she had a reasonable belief that her employer engaged in violations that related to shareholder fraud, securities fraud, or an actual violation of a specific law. But his decision had been rendered prior to the Board's decision in Sylvester v. Paraxel Int'l LLC , ARB No. 07_123, ALJ Nos. 2007_SOX_39 and 42 (ARB May 25, 2011), in which the ARB held that an allegation of shareholder fraud is not a necessary component of protected activity under Section 806 of the SOX; that a SOX complainant need not establish the various elements of securities fraud to prevail on a Section 806 retaliation complaint; and that an employee's whistleblower communication is protected where based on a reasonable, but mistaken, belief that the employer's conduct constitutes a violation of one of the six enumerated categories of law under Section 806.

PRETEXT IS NOT PART OF THE COMPLAINANT'S BURDEN OF PROOF UNDER SOX

In Zinn v. American Commercial Lines Inc. , ARB No. 10-029, ALJ No. 2009-SOX-25 (ARB Mar. 28, 2012), the ALJ erred by conflating the SOX burden of proof with the Title VII burden of proof , including improperly requiring the Complainant to establish that the Respondent's articulation of a legitimate business reason for the adverse employment action was pretext. The ARB wrote:

To prevail on a complaint, the employee need not necessarily prove that the employer's reasons for the adverse action was pretext." While doing so does provide "circumstantial evidence of the mindset of the employer, which may be sufficient to establish by a preponderance of the evidence that his or her protected activity" contributed to the adverse action, such a showing is not required for a complainant to prevail under Section 806. Rather than assess any such pretext evidence as rebuttal evidence to ACL's nondiscriminatory reasons for firing Zinn, the ALJ must "weigh the circumstantial evidence as a whole [which includes any pretext' evidence] to properly gauge the context of the adverse action in question."

USDOL/OALJ Reporter at 12-13 (footnotes and citations omitted).

CAUSATION; ALJ ERRED IN PARTLY BASING A FINDING OF A LACK OF CAUSAL LINK BETWEEN PROTECTED ACTIVITY AND ADVERSE ACTION BASED ON THE PASSAGE OF TIME WHERE ARB CASELAW INDICATES THAT TEMPORAL PROXIMITY OF SEVEN TO EIGHT MONTHS MAY BE SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF CONTRIBUTING CAUSE

In Zinn v. American Commercial Lines Inc. , ARB No. 10-029, ALJ No. 2009-SOX-25 (ARB Mar. 28, 2012), the ARB held that the ALJ erred in finding no causation in part because the Complainant's alleged protected activity occurred in April and May 2008, and she was not terminated until July 2008. The ARB stated: "However, a temporal proximity of seven to eight months between protected activity and adverse action may be sufficient circumstantial evidence to prove that the protected activity contributed to the adverse action. On remand, the ALJ must re-examine this finding in light of pertinent ARB precedent." USDOL/OALJ Reporter at 12 (footnotes and citations omitted).

EVIDENCE; ALJ ERRED IN EXCLUDING CONGRESSIONAL REPORT ABOUT INCIDENT THAT OCCURRED AFTER THE COMPLAINANT'S PROTECTED ACTIVITY AND DISCHARGE, WHERE THE REPORT CORROBORATED THE COMPLAINANT'S TESTIMONY

In Zinn v. American Commercial Lines Inc. , ARB No. 10-029, ALJ No. 2009-SOX-25 (ARB Mar. 28, 2012),the Respondent's business included transportation of various industrial products by barges on waterways using its own or hired tugboats. The Complainant raised a concern that the Respondent's report in its 10-K Form that it had been upholding safety might be a misrepresentation in view of incident reports indicating that one of its vendors used unlicensed tugboat personnel. The ARB held that the ALJ abused his discretion in excluding a Congressional staff report proffered by the Complainant that was material and relevant to the question of whether the Complainant had a reasonable belief that the Respondent's Form 10-K may have misrepresented a fact. The ALJ had excluded the report because it was about an incident that occurred after the Complainant had been terminated and after her protected activity. The ARB found that the incident had occurred only 15 days after the Complainant's termination and was relevant because it corroborated the Complainant's testimony that the Respondent had used a tugboat operator which had used unlicenced pilots.

[STAA Digest V A 2 c]
PROTECTED ACTIVITY UNDER THE STAA COMPLAINT CLAUSE; COMPLAINANT'S REPORT TO POLICE THAT ASSIGNED TRAILER MIGHT CONTAIN CONTRABAND WAS NOT PROTECTED ACTIVITY WHERE THE COMPLAINANT MADE GIANT LEAPS OF LOGIC THAT WERE NOT OBJECTIVELY REASONABLE

In Ulrich v. Swift Transportation Corp. , ARB No. 11-016, ALJ No. 2010-STA-41 (ARB Mar. 27, 2012), the ARB affirmed the ALJ's dismissal of the Complainant's STAA whistleblower complaint on the ground that the Complainant failed to establish that he engaged in protected activity by filing a complaint related to a violation of a regulation, standard, or order under 49 U.S.C.A. § 31105(a)(1)(A) (complaint clause). The Complainant had contacted police to report that a discrepancy between the weight listed on the bill of lading and the computer dispatch might be related to drugs, explosives, people or other illegal contraband loaded into the dispatched trailer which had originated in Mexico.

The ARB found that the record supported the ALJ's finding that the Complainant was not objectively reasonable in believing that his assigned trailer contained explosives, drugs, or people where there was no direct evidence of such; the Complainant made giant leaps of logic; weight discrepancies are a common occurrence in the trucking industry; it was undisputed that the truck complied with all federal and state standards at the time; and although the trailer did not have a high security seal, there was no evidence that the tin seal had been tampered with or manipulated. The ARB stated that neither the fact that the load originated in Mexico nor that the Complainant allegedly overheard a conversation between two drivers about a drug bust with the Respondent's trucks, served to make the Complainant's belief about drugs, explosives, or people in his truck reasonable.

Order dismissing without prejudice prematurely filed petitions for review.

The ARB affirmed the ALJ's grant of summary decision dismissing the complaint where the Complainant failed to proffer sufficient evidence to create a genuine issue of material fact regarding the necessary nexus between his alleged protected activity and the alleged adverse actions.

ARB's misquotation of district court did not change the ARB's reading of the court's direction, and did not present grounds for reconsideration of the denial of interlocutory review.

Deputy Administrator notified the Board that upon reconsideration, she had decided not to pursue the appeal of the ALJ's Decision and Order.

Complainants failed to show cause why the appeal should not be dismissed based on the failure to timely file an opening brief.