March 2019
Brooks v. Agate Resources, LLC, ARB No. 2017-0033, ALJ No. 2016-SOX-00037 (ARB Mar. 25, 2019) (per curiam) (Final Decision and Order)
Casenote(s):USDOL/OALJ Reporter
The ARB adopted the ALJ’s decision. The ALJ had found that there was no genuine issue of material fact that the Complainant’s SOX complaint was untimely and that equitable tolling did not apply.
Budri v. Firstfleet, Inc., ARB No. 2018-0055, ALJ No. 2018-STA-00033 (ARB Mar. 25, 2019) (per curiam) (Final Decision and Order)
Later history: Budri v. FirstFleet, Inc., ARB No. 2018-0055, ALJ No. 2018-STA-00033 (ARB July 30, 2019) (per curiam) (Order Vacating Final Decision and Order and Dismissing Complaint)
Casenote(s):TIMELINESS OF STAA COMPLAINT; ARB AGREES WITH ALJ THAT COMPLAINANT HAD 180 DAYS FROM DATE HE LEARNED OF NEGATIVE REPORT TO FILE COMPLAINT; CONTINUED POSTING OF NEGATIVE REPORT DID NOT EXTEND THE FILING DEADLINE
In Budri v. Firstfleet, Inc., ARB No. 2018-0055, ALJ No. 2018-STA-00033 (ARB Mar. 25, 2019) (per curiam), the ARB summarily affirmed the ALJ’s Decision and Order granting the Respondent’s motion for summary decision based on the complaint having been filed outside the STAA 180 day limitations period. The Complainant conceded that he filed his STAA complaint more than 180 days after he learned of a purportedly retaliatory consumer reporting agency report, but argued that because the negative report was still publically available, it was a continuing violation of the STAA, and therefore his complaint was timely. The ARB, however, agreed with the ALJ that the “Complainant had 180 days from when he first learned about the negative information to file his STAA claim. The statute does not expressly provide that a claim of a continuous violation extends the filing deadline, and in any event the instant facts support the ALJ’s conclusion that there is no continuous violation in this matter.” Slip op. at 2-3 (footnote omitted). The ALJ had cited Eubanks v. A.M. Express, Inc., ARB No. 2008-0138, ALJ No. 2008-STA-00040, slip op. at 6-7 (ARB Sept. 24, 2009).
[Editor's note: This decision was later vacated when the ARB learned that Complainant had filed a complaint in district court prior to issuance of the ARB's final decision. Budri v. FirstFleet, Inc., ARB No. 2018-0055, ALJ No. 2018-STA-00033 (ARB July 30, 2019) (per curiam) (Order Vacating Final Decision and Order and Dismissing Complaint)]
Criscione v. U.S. Nuclear Regulatory Commission, ARB No. 2018-0052, ALJ No. 2017-ERA-00009 (ARB Mar. 22, 2019) (Order Dismissing Complaint)
Casenote(s):
Appeal dismissed because the Complainant provided notice that he would file an action in U.S. district court.
Henin v. Soo Line Railroad Co., ARB No. 2019-0028, ALJ No. 2017-FRS-00011 (ARB Mar. 22, 2019) (per curiam) (Order Granting Reconsideration, Reinstating Complainant’s Appeal As Timely and Dismissing Complaint)
Casenote(s):
The Respondent filed a motion to dismiss the Complainant's petition for ARB review as untimely. The Complainant later filed a notice of intent to file an action in district court, and that same day, the ARB granted the Respondent's motion to dismiss the petition as untimely. The Complainant filed a motion to reconsider the grounds for the dismissal because he had not received the ALJ's decision and order until 11 days after the ALJ issued the decision. The ARB also received a copy of a filing of a complaint in the U.S. District Court for the District of Minnesota. Upon review of the the administrative file, the ARB found, inexplicably, evidence of two different dates for issuance of the ALJ's decision. A certified mail mail receipt supported the date of receipt claimed by the Complainant. Applying FRAP 26(c), the ARB reconsidered, reinstated the appeal as timely filed, and then dismissed the administrative complaint because the Complainant had filed an action in U.S. district court.
Administrator, Wage and Hour Div. v. ME Global, Inc., ARB No. 2016-0087, ALJ No. 2013-LCA-00039 (ARB Mar. 22, 2019) (Final Decision and Order)
Casenote(s):
The ARB adopted the ALJ’s grant of summary decision. The ALJ had found that the Respondent could not establish a bona fide termination of its employment relationship with an H-1B worker and that the Respondent’s wage obligation continued until the H-1B worker’s departure.
Boucher v. BNSF Railway Co., ARB No. 2016-0085, ALJ No. 2014-FRS-00072 (ARB Mar. 22, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
SETTLEMENT; ARB WILL NOT APPROVE A REDACTED SETTLEMENT AGREEMENT REACHED WHILE CASE IS ON APPEAL BECAUSE AMOUNT OF MONEY OR OTHER CONSIDERATION IS A MATTER OF PUBLIC CONCERN; IF UNREDACTED SETTLEMENT NOT SUBMITTED, ARB WILL REVIEW THE CASE ON THE MERITS
FRSA ELECTION OF REMEDIES PROVISION; WHERE COMPLAINANT AVERRED THAT HE WAS SATISFIED WITH A SETTLEMENT IN STATE COURT AND THERE "ELECTED HIS REMEDY," THE ARB AGREED TO PERMIT THE COMPLAINANT TO WITHDRAW HIS PETITION FOR ARB REVIEW WITHOUT SUBMISSION OF UNREDACTED SETTLEMENT AGREEMENT FROM STATE ACTION
In Boucher v. BNSF Railway Co., ARB No. 2016-0085, ALJ No. 2014-FRS-00072 (ARB Mar. 22, 2019) (per curiam), the Complainant filed a FRSA complaint and a Montana state court action. The DOL ALJ granted the Respondent’s motion for summary decision on the ground that the Complainant could not seek relief for his discharge under both the FRSA and the Montana law. The ALJ also noted that it would be improper for Complainant to receive duplicate remedies for the Respondent’s same alleged unlawful act. The Complainant appealed to the ARB, but later filed a motion to withdraw the petition for review based on a settlement of the Montana suit. The ARB directed the parties to submit a copy of the settlement agreement because the FRSA regulations require ARB approval where a withdrawal is based on a settlement agreement.
The Respondent filed a redacted copy of the settlement agreement. The ARB denied the motion to withdraw, stating that it would not approve a redacted settlement agreement because the amount of money or other consideration provided in the settlement was a matter of public concern. The ARB directed submission of an unredacted copy of the settlement within 30 days. The ARB stated that if such was not timely submitted, it would consider the case on its merits. In response, the Complainant conceded that the Respondent was entitled to summary decision because he had now elected his remedy—i.e., the settlement in the Montana action.
The ARB noted that the FRSA “election of remedies” provision at 49 U.S.C. § 20109(f) prohibits a complainant from bringing separate claims under two different provisions of law for the same allegedly unlawful act. The ARB wrote:
Montana law provides a cause of action to railway workers who suffer adverse actions because of a railroad’s mismanagement, negligence, or wrongdoing. It is “another provision of law” and it provides “protection” because it provides a remedy for wrongful discharge. Because Complainant has elected to seek protection under “another provision of law” in addition to the FRSA, the “election of remedies” provision of the Act renders withdrawal and dismissal of the instant action appropriate.
Slip op. at 4 (footnote omitted). Accordingly, the ARB granted the Complainant’s motion to withdraw his petition for review, and dismissed the complaint.
Austin v. BNSF Railway Co., ARB No. 17-024, ALJ No. 2016-FRS-13 (ARB Mar. 11, 2019) (per curiam)
Casenote(s):
ALJ’s DECISION AND ORDER; TIGHTLY FOCUSED SET OF FINDINGS OF FACT IS HELPFUL FOR SUBSTANTIAL EVIDENCE APPELLATE REVIEW; SUMMARY OF THE RECORD IS NOT NECESSARY AS IT IS ASSUMED THAT ALJ CONSIDERED ENTIRE RECORD
In Austin v. BNSF Railway Co., ARB No. 17-024, ALJ No. 2016-FRS-13 (ARB Mar. 11, 2019) (per curiam), the ARB noted that an ALJ need not include a summary of the record in the decision and order, as it is assumed that the ALJ reviewed and considered the entire record in making his or her decision. The ARB indicated that what is more helpful for its review of whether the ALJ’s findings of fact are supported by substantial evidence of record is a tightly focused set of findings of fact.
SUBSTITUTION OF COMPLAINANT UPON WORKER’S DEATH; ARB APPLIES FRAP 43 AND DENIES SUBSITUTION MOTION WHERE PUTATIVE WIDOWER WAS NOT IDENTIFIED AS DECEDENT’S PERSONAL REPRESENTATIVE AND IT WAS NOT EXPLAINED HOW THE DECEDENT’S MINOR CHILD’S INTEREST WOULD BE PROTECTED BY A SUBSTITUTION
SUBSTITUTION OF COMPLAINANT UPON WORKER’S DEATH; ALJ IS NOT OBLIGATED TO RESEARCH, CONSTRUE OR APPLY STATE LAW AS TO INTESTATE SUCCESSION LAW OR SIMILAR MATTERS; PREFERRED PRACTICE IS OPENING OF ESTATE, AND THAT EXECUTOR OR PERSONAL REPRESENTATIVE PROCEED IN INTEREST OF THE ESTATE
In Austin v. BNSF Railway Co., ARB No. 17-024, ALJ No. 2016-FRS-13 (ARB Mar. 11, 2019) (per curiam), the Complainant passed away the very day that the ALJ issued his FRSA Decision and Order. After a petition for review was filed, the Complainant’s counsel filed a notice of suggestion of death, and 90 days later, filed a motion to substitute the Complainant’s putative widower, Sean Lawson, as the Complainant in the case. The putative widower and Complainant’s attorney asserted that he and the Complainant’s minor child were the Complainant’s only successors. The ARB analyzed the motion under the FRAP 42, which provides that after a notice of appeal is filed, “the decedent’s personal representative may be substituted as a party on motion filed with the circuit clerk by the representative or by any party.” Fed. R. App. P. 43(a)(1)-(2). The ARB denied the motion because it the putative widower had not been identified as the Complainant’s personal representative, had not identified the “minor child,” and had not explained how the child’s interest would be protected if the putative widower was named as the substitute Complainant.
In a footnote, the ARB noted the law on intestate succession law in Texas, and stated:
While the Board has chosen to include a reference to Texas law by way of illustration, we do not intend to impose upon the Board or upon Administrative Law Judges any obligation to research, construe, or apply State law in this or similar matters. The preferred practice is clear that interested persons should open an estate for a deceased party and that the executor or personal representative should proceed in the interest of the estate. In this way legally sufficient documentation can be provided to the ALJ or the Board as necessary.
Slip op. at 8, n.34.
CONTRIBUTING FACTOR CAUSATION; STANDARD OF REVIEW IS WHETHER SUBSTANTIAL EVIDENCE SUPPORTS ALJ’S FINDINGS OF FACT, NOT WHETHER SUBSTANTIAL EVIDENCE SUPPORTS A DIFFERENT VIEW OF THE CASE; ARB AFFIRMED ALJ’S FINDING THAT SUPERVISOR HAD GENIUNE GOOD FAITH BELIEF THAT COMPLAINANT VIOLATED WORK RULE AGAINST THEFT AND COMPLAINANT’S HONEST BELIEF THAT SHE HAD NOT COMMITTED THEFT DID NOT CHANGE THE SUPERVISOR’S BELIEF; ARB ALSO NOTED THAT THE ALJ HAD FOUND NO EVIDENCE OF PRETEXT, AND THAT COMPLAINANT’S TESTIMONY LACKED MUCH PROBATIVE VALUE
In Austin v. BNSF Railway Co., ARB No. 17-024, ALJ No. 2016-FRS-13 (ARB Mar. 11, 2019) (per curiam), the ARB affirmed the ALJ’s dismissal of the Complainant’s FRSA retaliation complaint on the ground that the Complainant failed to demonstrate that any protected activity was a contributing factor in Respondent’s decision to terminate her employment. The Complainant had slipped and fell and injured her tailbone. She reported the hazard, the fall and the injury to the Respondent’s chief dispatcher. The Complainant declined transport to the hospital by ambulance, and instead informed the Respondent that she would seek medical care on her own. She went to an urgent medical care facility across the street from the workplace, and upon advice from the medical providers, stayed out of work for two days. Supervisors were notified within 24 hours of the fall and injury. Later, a co-worked reported a theft of personal property, and surveillance video showed the Complainant removing medication from the co-worker’s desk area. After learning that it was the Complainant who had taken the medicine, the co-worker indicated that she had given the Complainant permission to use her Advil or Aleve and did not want to pursue the matter. The Advil bottle, however, had included prescription medications, and the video appeared to show that the Complainant took the bottle surreptitiously. After an internal investigation/hearing, the Respondent concluded that the Complainant had taken the medication without consent and had violated the Respondent’s rule against dishonesty and theft. The Respondent then terminated the Complainant’s employment.
On appeal the Complainant did not argue that the ALJ’s decision was not supported by substantial evidence, but rather that substantial evidence supported a finding that the Complainant was treated differently than other employees, and therefore the Respondent must have been discriminating against the Complainant for reporting an injury at work, medical treatment and a work hazard. The ARB found that the argument misconstrued its standard of review. The ARB stated: “The ARB reviews an ALJ’s decision on the merits to determine whether substantial evidence in the record supports any factual findings. Even if there is also substantial evidence for the other party and even if we as the trier of fact might have made a different choice, the standard of review is unchanged.” Slip op at 8 (citation omitted).
The ARB noted that the ALJ had largely relied on a supervisor’s credible testimony to find that the supervisor had a good faith belief that the Complainant had taken the co-worker’s property without consent and had genuinely believed that she violated the Respondent’s rule against dishonesty or theft. The ARB found this belief supported by the video evidence and the Complainant’s own testimony. The ARB found that the ALJ correctly determined that even if the Complainant sincerely believed that she was not stealing, it would not change the effect of the supervisor’s belief that there had been a theft when making the determination to fire the Complainant. The ARB noted that the ALJ had found no pretext in the Respondent’s reasons for making its decision to fire the Complainant. The ARB afforded deference to the ALJ’s findings that the Complainant’s testimony was, at times, evasive, contradictory, inconsistent and unpersuasive.
CONTRIBUTING FACTOR CAUSATION; REITERATION THAT PURSUANT TO POWERS, DESPITE LOW STANDARD OF PROOF FOR COMPLAINANT TO MEET CONTRIBUTING FACTOR CAUSATION ELEMENT, COMPLAINANT’S EVIDENCE IS NOT VIEWED IN ISOLATION, BUT IN VIEW OF ALL EVIDENCE OF RECORD
In Austin v. BNSF Railway Co., ARB No. 17-024, ALJ No. 2016-FRS-13 (ARB Mar. 11, 2019) (per curiam), the ARB reiterated that the Powers decision had clarified the trier of fact may review consider the entire record in regard to the question of whether a complainant met the low burden of establishing contributory factor causation, and found that under the totality of the evidence in the instant case, the ALJ’s conclusion on the absence of contributory factor causation was amply supported by substantial evidence. Specifically, the ARB wrote:
We are cognizant of the low standard of proof commonly deemed to be sufficient to meet Complainant’s burden of proof concerning the causal relationship between her protected activity and the adverse action: a contributing factor is “any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” Allen v. Admin. Review Bd., 514 F.3d 468, 476 n.3 (5th Cir. 2008). That being noted, the evidence Complainant proffered on this point is not viewed in isolation — the trier of fact and this Board can consider all relevant evidence in determining whether there was a causal relationship between Complainant’s protected activity and the adverse employment action alleged. Powers v. Union Pacific R.R. Co., ARB No. 13-034, ALJ No. 2010-FRS 030, slip op. at 21 (ARB Jan. 6, 2017), aff’d. Powers v. U.S. Dep’t of Labor, No. 17-70676, 723 Fed. Appx. 522, 2018 IER Cases 180, 768 (9th Cir. May 22, 2018) (unpub.). Under the facts of this case and the totality of the relevant evidence, there is more than substantial evidence to support the ALJ’s conclusion that Complainant’s protected activity did not affect in any way the decision to terminate Complainant.
Slip op. at 8, n. 37.
Watts v. Perdue Farms, Inc., ARB No. 17-017, ALJ No. 2016-FDA-3 (ARB Mar. 5, 2019) (Final Decision and Order)
Casenote(s):
COVERAGE OF FSMA WHISTLEBLOWER PROVISION DOES NOT EXTEND TO POULTRY PRODUCTS INDUSTRY; EMPLOYEE’S REASONABLE BUT MISTAKEN BELIEF THAT POULTRY IS REGULATED UNDER THE FFDCA AND THE FMSA CANNOT OPERATE TO FSMA WHISTLEBLOWER COVERAGE
In Watts v. Perdue Farms, Inc., ARB No. 17-017, ALJ No. 2016-FDA-3 (ARB Mar. 5, 2019), the Complainant raised chickens for the Respondent. He filed a complaint alleging that the Defendant retaliated against him in violation of Section 402 of the Food Safety and Modernization Act (FSMA) after he made allegations that the Defendant had misinformed consumers about the practices farmers used in raising its chickens and the health of its chickens in violation of the FSMA and the Federal Food, Drug, and Cosmetic Act (FFDCA). The ALJ dismissed the complaint, reasoning that “the raising of chickens is part of the poultry products industry, which is exempt from the FFDCA pursuant to the Poultry Products Inspection Act (PPIA), 21 U.S.C. § 467f (1979), and is therefore also exempt from the FSMA amendments adding the employee protection provisions to the FFDCA. Slip op. at 2-3. The ARB affirmed. The ARB noted that the statutory framework is complex, involving four distinct statutes. The ARB analyzed the applicable law, and held:
Accordingly, the FFDCA’s definition of “food” may be broad, but the PPIA and FSMA unequivocally establish that “poultry ” is not “food” for the purposes of the FFDCA. There is no overlap of coverage in this particular regard, and the ALJ was correct as a matter of law to conclude that she had no authority to adjudicate a complaint arising under a statute, i.e., the PPIA, that is not administered by the Department of Labor.
The Complainant argued that “even if the PPIA excludes ‘poultry’ from coverage under the FFDCA, the DOL is still a proper forum for his complaint because Watts had a reasonable belief that he and his employer were covered under the FFDCA and the FSMA.” The Complainant cited Saporito v. Publix Super Markets, Inc., ARB No. 10-073, ALJ No. 2010-CPS-1 (ARB Mar. 28, 2012), for support. The ARB was not persuaded that Saporito applied, explaining that the Complainant had “conflate[d] the standard of analysis for determining whether protected activity is established based on a complainant’s ‘reasonable belief’ with the different analysis for determining whether a respondent’s activities are covered under the FSMA.” Slip op. at 6. The ARB explained:
A complainant’s reasonable but mistaken belief that a FFDCA violation has occurred may render certain of his whistleblowing activities as protected under the Act. But an employee’s reasonable albeit mistaken belief that poultry is regulated under the FFDCA and the FSMA cannot operate to extend coverage of those Acts over an entity whose activities the Acts do not otherwise regulate. Complainant’s reasonable mistake of law may expand the protections that his whistleblowing activities receive, but it cannot extend the coverage of an Act beyond that which Congress expressly provided for in the statutory text.
Id.
Hernandez v. Metro-North Commuter Railroad Co., Inc., ARB No. 17-016, ALJ No. 2016-FRS-23 (ARB Mar. 1, 2019) (per curiam) (Decision and Order)
Casenote(s):
CONTRIBUTING FACTOR CAUSTION; SUMMARY DECISION GRANTED WHERE RESPONDENT SUBMITTED DOCUMENTATION SHOWING THAT COMPLAINANT HAD BEEN DENIED RE-ENTRY INTO A TRAINING PROGRAM BASED ON AN ESTABLISHED POLICY, AND COMPLAINANT HAD NOT RAISED A GENIUNE ISSUE OF MATERIAL FACT ABOUT THAT POLICY; TESTIMONY SHOWING THAT A CO-WORKER HAD BEEN ALLOWED TO RE-ENTER DID NOT CREATE A FACT ISSUE WHERE THAT CO-WORKER WAS NOT SIMILARLY SITUATED
In Hernandez v. Metro-North Commuter Railroad Co., Inc., ARB No. 17-016, ALJ No. 2016-FRS-23 (ARB Mar. 1, 2019) (per curiam), the Complainant alleged that the Respondent retaliated against him in violation of the FRSA by denying him re-entry into its Engineer Training Program (ETP). The Complainant had been previously been accepted for the ETP. He contended that the denial of re-entry was related to his referencing, at the time he was given a warning for failing to advise his ETP instructor before class that he was going to be late or absent, a co-worker’s DUI arrest (a fact that Complainant knew the instructor was already aware of). The Respondent contended that the denial of re-entry was based on the fact that the Complainant later had been terminated from the ETP because he had twice failed to pass physical characteristics tests. When the Complainant later re-applied for the ETP he was informed that he was not eligible because of the prior release from the program. Before the ALJ, the Respondent produced an internal HR document that stated that “minimum requirements for the position locomotive engineer include that the candidate must not have failed within a five year period any agency-sponsored training program for the same or similar position requiring comparable qualifications, testing, or training.” Slip op. at 3 (footnote omitted). The ALJ granted summary decision based on the Complainant’s failure to establish protected activity or contributory factor causation.
On appeal, the ARB focused on contributory factor causation, and did not decide whether the Complainant’s reference to the co-worker’s DUI was protected activity. The ARB found that the Respondent’s submissions showed that the Complainant was denied re-entry based on the policy. The Complainant failed to raise a genuine issue as to the facts. He did not allege that the policy did not exist. His strongest evidence in opposition to summary decision was deposition testimony that another ETP candidate had been allowed to reenter within five years. The Respondent, however, had submitted evidence showing that the other candidate was not similarly situated as he been terminated from the ETP due to absences for medical reasons, whereas the Complainant had been terminated for two-time failure of the physical characteristics test.
The ARB noted that the Complainant speculated that he would be able to elicit additional facts in discovery or at a hearing. The ARB stated that, in order to show that the Respondent's submissions had not established the absence of a genuine issue of material fact, the Complainant would have had to have pointed to facts that he hoped to elicit in the face of Respondent's evidence. The ARB stated that an argument that the Respondent’s reasons were pretext was not an evidentiary suggestion to oppose summary decision.
The Complainant argued that the ALJ erred when she stayed pre-hearing deadlines and granted Respondent's summary decision motion before he could develop his case. The ARB rejected this argument, noting that the ALJ’s stay of pre-hearing deadlines had not stayed discovery, and that the Complainant still had the opportunity to engage in discovery in relation to the summary decision motion.
Wright v. American Federation of Government Employees Local ("AFGE") 2544, ARB No. 19-034, ALJ No. 2017-SOC-2 (ARB Mar. 1, 2019) (Final Decision and Order)
Casenote(s):
The ARB provided notice to the parties that, no exceptions having been timely filed, the ARB adopted the ALJ’s Recommended Decision and Order as the final agency decision in this case. See 29 C.F.R. § 458.91(a).