USDOL/OALJ Reporter: ARB Decision Caselist - March 2017

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• PDF (slip opinion)

The ARB dismissed the SOX administrative complaint because the Complainant “informed the Board of his intention to forego further adjudication of his SOX complaint before the Department of Labor, and instead pursue it in Federal District Court.”

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The Complainant alleged that the Respondent fired him in violation of the STAA’s employee protection provision in retaliation for refusing to exceed the speed limit. The ARB summarily affirmed the ALJ’s Decision and Order because substantial evidence of record supported the ALJ’s finding that there was no credible evidence that the Complainant reported to his supervisor, or to any manager, before the supervisor fired him, that he had refused to violate a safety rule as his trainers allegedly directed him to; nor was there credible evidence that the supervisor knew of the alleged protected activity prior to firing the Complainant.

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[Nuclear and Environmental Whistleblower Digest XVIII C 4]
DIRECTED VERDICT; COMPLAINANT CANNOT RELY ON RECORD MADE BEFORE OSHA; ALJ HEARING IS DE NOVO, AND COMPLAINANT MUST FORMALLY INTRODUCE EVIDENCE, EVEN IF ONLY TO OFFER THE RECORD FROM THE OSHA PROCEEDINGS OR TO PRESENT HIS OR HER OWN TESTIMONY

[Nuclear and Environmental Whistleblower Digest VII C 2]
PRO SE LITIGANT; ALTHOUGH AN ALJ HAS SOME DUTY TO ASSIST PRO SE LITIGANTS, THE BURDEN REMAINS ON SUCH A LITIGANT TO PROVE THE NECESSARY ELEMENTS OF HIS OR HER CLAIM

In Witbeck v. CH2M Hill Ltd. , ARB No. 15-077, ALJ Nos. 2013-SOX-1, 2014-SOX-40 (ARB Mar. 15, 2017), the Complainant filed complaints under the whistleblower protection provisions of the Sarbanes-Oxley Act and the Federal Water Pollution Control Act. OSHA dismissed the complaint. Before the ALJ, the Complainant “failed to participate in all pre-trial disclosures and waived his right to participate in a scheduled hearing, despite numerous pre-hearing warnings from the Administrative Law Judge (ALJ) that Complainant’s failure to present evidence in support of his case would be fatal to his claim. At the hearing, Respondents moved for a directed verdict based on Complainant’s failure to meet his burden of proof on his claims. The ALJ granted the motion, dismissed Complainant’s claims with prejudice for the reasons provided on the record, and followed up with a written Decision and Order. Complainant appealed to the Administrative Review Board (ARB or Board). ” Slip op. at 1-2. The ARB affirmed the ALJ’s decision. The ARB noted that “ [i]n light of [the Complainant’s] pro se status, the ALJ took great pains to make sure Complainant understood his obligations in terms of prosecuting his case. ” Id .at 2. The Complainant, however, persistently refused to accept the ALJ’s explanations that the proceedings before OALJ are de novo. The Complainant mistakenly believed that he had won his case before OSHA on pleadings alone and contended that the only matter left in dispute was damages. The ARB agreed with the ALJ that the Complainant not only “fail[ed] to prove th[e] elements [of a SOX or FWPCA claim], he failed to show up for the hearing or enter any evidence or witness testimony whatsoever. ” Id .at 5. As to the Complainant’s misunderstanding of the OSHA procedure and the de novo hearing before an ALJ, the ARB wrote:

   The ALJ’s procedure mimics that of other courts: parties engage in discovery; the judge issues a pre-hearing order; the parties exchange submissions in preparation for hearing; and the parties present evidence during the hearing. As part of this process, a party is free to re-submit evidence to the ALJ that it also presented to investigators during an administrative investigation. We fully agree with the ALJ: OSHA pleadings are not evidence and Witbeck needed to participate in pre-hearing procedures and show up for hearing to formally introduce evidence, even if it was to offer records from the OSHA proceedings into the record, 29 C.F.R. §# 18.82(g), or to present his own testimony…. Witbeck's failure to present evidence is fatal to his claim.

Id . As to the Complainant’s pro se status, the Board wrote:

   The Board is cognizant of Complainant’s pro se status in this matter, but notes that “a pro se litigant ‘cannot generally be permitted to shift the burden of litigating his case to the courts, nor avoid the risks of failure that attend his decision to forego expert assistance. ’” Pik v. Credit Suisse AG , ARB No. 11 -034, ALJ No. 2011-SOX-6, slip op. at 4-5 (ARB May 31, 2012) (quoting Ray’s Lawn & Cleaning Svcs. , ARB No. 06-112, slip op. at 7-8 (ARB Aug. 29, 2008)). “Thus, although an ALJ has some duty to assist pro se litigants, a judge also has a duty of impartiality and must refrain from becoming an advocate for the pro se litigant. In the end, pro se litigants have the same burdens of proving the necessary elements of their cases as litigants represented by counsel. ” Id . at 5 (internal citations omitted). The ALJ here made significant efforts to ensure that Complainant understood these burdens.

Id .at 6.

[Nuclear and Environmental Whistleblower Digest VIII B 2 b]
REOPENING OF RECORD ON APPEAL; WITHOUT PERMISSION, A PARTY IS NOT PERMITTED TO SUPPLEMENT THE RECORD WITH CONTENT THAT WAS NOT SUBMITTED TO AND ACCEPTED INTO THE RECORD BY THE ALJ

In Witbeck v. CH2M Hill Ltd. , ARB No. 15-077, ALJ Nos. 2013-SOX-1, 2014-SOX-40 (ARB Mar. 15, 2017), the ARB affirmed the ALJ’s grant of a directed verdict for the Respondent where the Complainant did not attend the hearing or otherwise introduce any evidence in support of his SOX and FWPCA claims, despite numerous pre-hearing warnings from the ALJ that failure to present evidence in support of his case would be fatal to his claim. On appeal, the ARB granted the Respondent’s motion to strike submissions contained in an appendix submitted to the ARB by the Complainant. The ARB wrote: “The record closed when the ALJ concluded the hearing. 29 C.F.R. §# 18.90(a) (2016) . As Respondents argue, Witbeck is not permitted, without permission, to supplement the record after it closed with content that was not submitted to and accepted into the record by the ALJ. … Witbeck has not satisfied the standard for reopening the record. Hoffman v. Nextera Energy, Inc. , ARB No. 12-062, ALJ No. 2010-ERA-011, slip op. at 13 (ARB Dec. 17, 2013). ” Slip op. at 6, n.3.

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CLEAR AND CONVINCING EVIDENCE; RESPONDENT ESTABLISHED THAT IT WOULD HAVE FIRED THE COMPLAINANT IN THE ABSENCE OF PROTECTED ACTIVITY BECAUSE THE COMPLAINANT PERMITTED A TRAINEE PILOT TO UNDERTAKE A DANGEROUS HELICOPTER TAKEOFF IN INCLEMENT WEATHER

In Berroa v. Spectrum Health Hospitals , ARB No. 15-061, ALJ No. 2013-AIR-21 (ARB Mar. 9, 2017), the ALJ found that the Complainant’s AIR-21 protected activity about pilot trainee’s aeronautical competencies was a contributing factor in the Complainant’s termination from employment, but also found that the Respondent established by clear and convincing evidence that it would have terminated the Complainant’s employment for permitting the trainee pilot under his supervision to undertake a dangerous helicopter takeoff in inclement weather even if the Complainant had not engaged in protected activity. The ARB found that substantial evidence supported the ALJ’s ultimate conclusion that the Respondent established an affirmative defense. The ARB noted the ALJ’s crucial finding that the pilot trainee flight that the Complainant allowed to take place was “unnecessary for training purposes, demonstrated poor judgment, and placed at risk both the flight crew and a patient who was being transported.” Slip op. at 4.