USDOL/OALJ Reporter: ARB Decision Caselist - March 2014

ARB granted Petitioner's motion to withdraw its appeal.

ARB review dismissed where Complainant filed an action for de novo review in the United States District Court for the Northern District of Texas, as authorized by 29 C.F.R. § 1980.114(a)(2013).

ARB granted Petitioner's motion to withdraw its appeal without prejudice where Petitioner inadvertently filed with the Board and had now properly submitted its request for review to the Administrator of the Wage and Hour Division.

ALTHOUGH ALJ ON REMAND FOCUSED ON TOLLING ISSUES REGARDING TIMELINESS OF BLACKLISTING CLAIM AND DID NOT MAKE A SPECIFIC FINDING ON WHETHER SUCH A CLAIM HAD BEEN FILED, ARB DISMISSED THE CASE BECAUSE COMPLAINANT FAILED TO ESTABLISH THAT A BLACKLISTING COMPLAINT HAD BEEN FILED

In Woods v. Boeing-South Carolina , ARB No. 13-035, ALJ No. 2011-AIR-9 (ARB Mar. 20, 2014), the ARB had affirmed the ALJ's determination that the Complainant's AIR21 complaint was untimely as to termination of employment, but remanded for the ALJ to address whether the Complainant had also filed a timely blacklisting complaint. On remand, the ALJ and the Complainant focused on tolling issues, and the ALJ did not make a specific finding on whether a blacklisting claim had been filed. Nonetheless, the ARB found that both before the ALJ and the Board, the Complainant failed to point to any admissible evidence that he filed a complaint for blacklisting. Thus, the ARB dismissed the case.

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; ARB AFFIRMS $100,000 AWARD BASED ON COMPLAINANT�S TESTIMONY AND COMPARSION TO SIMILAR PRIOR CASES

PUNITIVE DAMAGES; ARB AFFIRMS $50,000 AWARD WHERE TERMINAL MANAGER FAILED TO MEANINGFULLY CHECK COMPLAINANT�S CONCERNS ABOUT THE WEATHER AND WHERE THE TERMINAL MANAGER�S CHARACTERIZATION OF THE TERMINATION AS A RESIGNATION PREVENTED PEER REVIEW AND DELAYED RECEIPT OF UNEMPLOYMENT BENEFITS

In Fink v. R&L Transfer, Inc. , ARB No. 13-018, ALJ No. 2012-STA-6 (ARB Mar. 19, 2014), the ARB found that substantial evidence supported the ALJ's finding that the Complainant's refusal to drive due to weather related concerns was based on a reasonable apprehension of serious injury to himself or the public. Further, the ARB affirmed ALJ's legal conclusion that Fink's refusal to drive constituted STAA-protected activity under 49 U.S.C.A. § 31105(a)(1)(B)(ii).

The ARB also affirmed the ALJ's award of compensatory damages in the amount of $100,000.00, and punitive damages in the amount of $50,000.00. Relying on the Complainant's testimony for the compensatory damages award, the ALJ found that the Respondent's termination of the Complainant's employment had a significant emotional impact on the Complainant in the effect it had on his dignity and self-esteem, his ability to support his family, and his vulnerable economic position. The ALJ awarded $100,000 based on a comparison with awards in similar cases.

In regard to the punitive damages award, the ALJ found it significant that the Respondent's terminal manager did not make any attempt to determine if there was any substance to the Complainant's concerns about driving the route in the snowy and icy weather, and only consulted persons in other states about whether the route should be driven. The ALJ also noted that the terminal manager characterized the Complainant's termination as a "resignation," which prevented the Complainant from participation in peer review to retain his job, and which delayed the receipt of unemployment benefits.

The ARB stated that the ALJ's analysis regarding her award amounts was consistent with applicable law:

"Compensatory damages are designed to compensate whistleblowers not only for direct pecuniary loss, but also for such harms as loss of reputation, personal humiliation, mental anguish, and emotional distress. A key step in determining the amount is a comparison with awards made in similar cases. To recover compensatory damages for mental suffering or emotional anguish, a complainant must show by a preponderance of the evidence that the unfavorable personnel action caused the harm." An award of punitive damages may be warranted where there has been "reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law."

Fink v. R&L Transfer, Inc. , ARB No. 13-018, USDOL/OALJ Reporter at 5 (footnotes omitted).

ARB AFFIRMS $100,000 PUNITIVE DAMAGES AWARD

In Griebel v. Union Pacific Railroad Co. , ARB No. 13-038, ALJ No. 2011-FRS-11 (ARB Mar. 18, 2014), the Respondent challenged the ALJ's punitive damages award of $100,000 under FRSA, 49 U.S.C.A. § 20109(e)(3). The ARB affirmed the award finding that the facts supporting the decision to award such relief were supported by substantial evidence, and that the Respondent failed to present persuasive reasons for overturning the amount of punitive damages.

ISSUE NOT BRIEFED IN PETITION FOR REVIEW IS DEEMED WAIVED

In Griebel v. Union Pacific Railroad Co. , ARB No. 13-038, ALJ No. 2011-FRS-11 (ARB Mar. 18, 2014), the Respondent challenged the ALJ's punitive damages award and the ALJ's liability determination. The Respondent did not argue the liability issue in the brief supporting the petition. The ARB held that because the company had not briefed the liability determination, that issue was waived. Adm�r, Wage & Hour Div. v. Global Horizons , ARB No. 11-058, ALJ Nos. 2005-TAE-1, 2005-TLC-6, slip op. at 7 n.7 (ARB May 31, 2013) (citing Dev. Res., Inc. , ARB No. 02-046, slip op. at 4 (ARB Apr. 11, 2002) (quoting Tolbert v. Queens Coll. , 242 F.3d 58, 75-76 (2d Cir. 2001) (stating that it is a "settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."))).

WHERE ALJ PLACED LITTLE OR NO WEIGHT ON EVIDENCE THAT WAS OMITTED OVER RESPONDENT�S OBJECTION, ANY ERROR IN ADMISSION OF THAT EVIDENCE WAS HARMLESS

In Griebel v. Union Pacific Railroad Co. , ARB No. 13-038, ALJ No. 2011-FRS-11 (ARB Mar. 18, 2014), the Respondent argued that the ALJ's admission of a Complainant's exhibit consisting of a compilation of FRSA complaints filed against the company, was error and prejudicial. The ARB found no reversible error, as the ALJ expressly stated that he did not rely on the evidence for purposes of determining whether the company's actions violated the Act. Ass to punitive damages the ALJ stated that he did not place any "real weight" on the number of past FRSA complaints filed against the Respondent without knowing more about the details and outcomes of the complaints, and stated that the award of punitive relief arose "from its own facts and circumstances." The ARB stated: "Since the ALJ made clear that little to no weight was placed on the evidence, any error by the ALJ was harmless. See Sagebrush Rebellion, Inc. v. Hodel , 790 F.2d 760, 765 (9th Cir. 1986) (agency may rely on harmless error rule when its mistake does not affect the result)."

Denial of Complainant's petition for interlocutory review of an ALJ's Order Denying Motion to Disqualify, where Complainant failed to allege exceptional circumstances warranting interlocutory review.

ARB approved unopposed fee petition for legal work before the ARB.

ATTORNEY FEE PETITION APPROVED WHERE SUPPORTED BY AFFIDAVITS AND WELL DOCUMENTED LIST OF TASKS

In Bala v. Port Authority Trans-Hudson Corp. , ARB No. 12-048, ALJ No. 2010-FRS-26 (ARB Mar. 5, 2014), the ARB approved an attorney's fee petition for legal work before the ARB at an hourly rate of $525.00 where the hourly rate was supported by affidavits detailing the attorney's extensive federal trial and appellate litigation experience generally, and specifically as to handling employment matters in the railroad industry. The rate was also supported by documentation of the market rate in Connecticut and fee awards to the attorney in similar federal court and ALJ proceedings. The ARB also found that the number of hours sought was well documented with the "date, time, and duration necessary to accomplish each specific activity."