USDOL/OALJ Reporter: ARB Decision Caselist - April 2013

APPLICATION OF DAVIS-BACON ACT REQUIREMENTS TO LEASE AGREEMENT TO REDEVELOP PUBLICLY OWNED REAL ESTATE; ADMINISTRATOR'S DISCRETION TO APPLY DBA REQUIREMENTS ONLY PROSPECTIVELY TO WORK PERFORMED AFTER ADMINISTRATOR'S FINAL DECISION

In CityCenterDC Project , ARB Nos. 11-074, -078, -082 (ARB Apr. 30, 2013), the Developers and the District of Columbia challenged the Wage and Hour Division Administrator's ruling that the Davis-Bacon Act prevailing wage and labor standards provisions under 40 U.S.C.A. § 3142(a), apply prospectively to the construction of the CityCenterDC project, a mixed-use development project in the heart of downtown Washington, D.C. The Regional Counsel of Carpenters challenged the Administrator's decision to limit the application of the DBA standards prospectively from the date of the Administrator's final decision on reconsideration. The ARB affirmed the Administrator's decision.

The DC government leased the site of the old Washington Convention Center for redevelopment pursuant to an exclusive rights agreement and the parties' master plan. The project has the purpose of creating a model urban center on District-owned prime real estate in downtown D.C.

The Developers argued on appeal that the District had not been a party to any "contract" "for construction." The ARB held, however, that the lease contracts between the District and the Developers fall squarely within the DBA's definition of a construction contract. The ARB stated that "it is well-settled law that a lease that calls for more than incidental construction can qualify as a contract for construction under the DBA." USDOL/OALJ Reporter at 11 (citations omitted).

The ARB then considered whether the project was a "public work" under the DBA, noting that to be covered, "the construction of the project's improvements must be �carried on directly by authority of' the District and 'serve the interest of the general public.' 29 C.F.R. § 5.2(k)." USDOL/OALJ Reporter at 12. The ARB found that the first prong of the regulation was satisfied because "the terms of the ground leases, the development agreements, and the Master Plan collectively provide the District with authority over what will be built and how it will be maintained during the lease terms." Id. The ARB noted that the District had passed enabling legislation authorizing redevelopment of the site and that it was a signatory to the prime contracts and lease agreements that embody the terms for construction and incorporate the project's master plan. The ARB noted that "but for the District's agreement to lease the land upon which the CityCenterDC project is being built, the effort to transform this District real estate would not be taking place." Id .

The ARB rejected the Developers' and the District's contention in regard to prong two that to qualify as a public work the project's primary purpose must be to benefit the public interest. The ARB found that neither the DBA's provisions nor its implementing regulation at 29 C.F.R. § 5.2(k) require a showing that benefitting the public interest is the construction project's primary purpose. The ARB rejected the contention that prior caselaw imposed a "primary purpose" limitation. The ARB found that the fact that the Developers were driven by private economic gains did not undermine the fact that there are significant public benefits that inure to the project. The project included construction of a park and central plaza for public use, the reintroduction of 10th and I streets, sidewalks, alleys, and walkways for pedestrians, a percentage of residences built for and designated as affordable housing, a percentage of new employment opportunities to be provided District residents, and substantial revenues to the District.

The Union contended that the Administrator had no discretion to apply the DBA only beginning the first pay period after her final determination, or at least needed to better explain the ruling. The ARB noted that 29 C.F.R. § 5.14 provides authority for the Administrator to make a variance from any regulatory requirement where she finds that such action is necessary and proper "in the public interest." In the instant case, the ARB, while conceding that it was a close question, found that the Administrator, focusing on the particular circumstances of this case, acted within her discretion under the DBA.

CONTRIBUTING CAUSE; COMPLAINANT'S EXPRESSION OF FRUSTRATION; CREDIBILITY DETERMINATION AS TO WHETHER IT ALONE WAS REASON FOR REPRIMAND

In Hamilton v. CSX Transportation, Inc. , ARB No. 12-022, ALJ No. 2010-FRS-25 (ARB Apr. 30, 2013), the ARB summarily affirmed the ALJ's decision finding that the Complainant had not established by a preponderance of the evidence that his protected activity contributed to the reprimand he received. The Complainant conceded that he had, in frustration, banged his hands on his desk and made a growling sound. The issue was the degree to which the Complainant expressed that frustration. The ALJ held that it was a matter of credibility and found that that the manager's testimony was more likely to be accurate. The ARB reviewed the evidentiary record and the parties' briefs on appeal, and found that the ALJ's findings were supported by substantial evidence.

AN FRSA COMPLAINT TRIED BEFORE AN ALJ HAS ONLY THREE ELEMENTS - PROTECTED ACTIVITY, ADVERSE ACTION, AND CAUSATION; DECISIONMAKER'S KNOWLEDGE AND ANIMUS ARE ONLY FACTORS IN THE CAUSATION ANALYSIS

In Hamilton v. CSX Transportation, Inc. , ARB No. 12-022, ALJ No. 2010-FRS-25 (ARB Apr. 30, 2013), the ARB found that the ALJ's legal analysis and conclusions of law on the three essential elements of a FRSA whistleblower case (protected activity, adverse action, and causation) were in accordance with applicable law. The ARB noted, however, that the ALJ and the parties had cited four elements tracking the elements necessary to raise an inference for an OSHA investigation. The ARB cited caselaw that provides that the final decisionmaker's "knowledge" and "animus" are only factors to consider in the causation analysis; they are not always determinative factors.

ALJ'S DISCRETION TO DISMISS FOR FAILURE TO PROSECUTE

In Prioleau v. Sikorsky Aircraft Corp. , ARB No. 13-002, ALJ No. 2010-SOX-3 (ARB Apr. 30, 2013), the Complainant stopped participating in the litigation after the ALJ denied his request for certification for interlocutory review of the ALJ's denial of his motion for reinstatement, and his request for a stay on the ALJ proceedings while he pursued an interlocutory appeal. The ALJ attempted twice to hold a status conference, but the Complainant did not participate. The ALJ issued an Order to Show Cause why the complaint should not be dismissed, to which the Complainant never responded. Thus, the ALJ dismissed the complaint. On appeal, the Complainant argued that his Mother had passed away several months earlier and that it had been extremely unpleasant for him when the ALJ wanted to begin litigating the case. The ARB found that the ALJ did not abuse his discretion in dismissing the Complainant's case. The ALJ had given ample notice that a stay had not be granted, and of the dates the conferences. The Complainant had not responded to the ALJ's order to show cause, even after the ARB had denied the request for an interlocutory appeal. The ARB appreciated that the death of a close family member is serious and tragic, but noted that the Complainant had been aggressively litigating the case for several months after his Mother's death, and found that the death was not sufficient reason for not participating in the ALJ conference or responding to the order to show cause.

COMPLAINANT MUST BE AFFORDED REASONABLE TIME AND OPPORTUNITY TO RESPOND TO A SUBSTANTIAL MOTION FOR SUMMARY DECISION; ALJ, HOWEVER, MAY REQUIRE COMPLAINANT TO STATE WITH SOME PRECISION WHAT MATERIALS HE HOPES TO OBTAIN WITH DISCOVERY AND HOW THEY WOULD HELP IN OPPOSING SUMMARY DECISION

In Saporito v. Publix Super Markets, Inc. , ARB No. 12-109, ALJ No. 2010-CPS-1 (ARB Apr. 30, 2013), the ARB found that the ALJ abused his discretion in cutting off all discovery and refusing to grant the Complainant any additional time to respond to the Respondent's substantial motion for summary decision. The ARB remanded for the ALJ to (1) permit the Complainant to engage in limited discovery within the ALJ's discretion and (2) allow for a reasonable opportunity to file a timely response to motions. The ARB, however, stated that the ALJ "may consider on remand that a party opposing summary decision �is required to state with some precision the materials he hopes to obtain with further discovery, and exactly how he expects those materials would help him in opposing summary judgment.'" USDOL/OALJ Reporter at 6 (footnote omitted).

[STAA Digest IV H]
CLEAR AND CONVINCING EVIDENCE; COMPLAINANT'S VIOLATION OF RESPONDENT'S ZERO TOLERANCE POLICY REQUIRING USE OF FILTRATION EQUIPMENT WHEN LOADING WATER

In Coryell v. Arkansas Energy Services, LLC , ARB No. 12-033, ALJ No. 2010-STA-42 (ARB Apr. 25, 2013), the ARB found that substantial evidence supported the ALJ's determinations that the Complainant failed to establish that his protected activity did not contribute to termination of his employment where witness testimony and documentation established that company managers did not know about the Complainant's DOT complaint when they fired him. The ARB also affirmed the ALJ's finding that the Respondent established by clear and convincing evidence that it would have fired the Complainant even absent the protected activity, due to the Complainant's failure to comply with the Respondent's zero tolerance policy requiring the use of filtering equipment when its drivers load water into trucks. Evidence of record and credible manager testimony was found by the ALJ to establish that the zero tolerance policy had been communicated to all employees. The policy was in response to requirements of the Respondent's primary customer, which was a shale plate gas drilling company.

TIMELINESS OF FILING OF SOX WHISTLEBLOWER COMPLAINT; COMPLAINT IS FILED WHEN MAILED RATHER THAN WHEN RECEIVED; ALJ'S OBTAINING OF ENVELOPE FROM OSHA TO DETERMINE POSTMARK WAS NOT PREJUDICIAL; ENVELOPE WAS A MATTER OF PUBLIC RECORD

In Barrett v. e-Smart Technologies, Inc. , ARB Nos. 11-088, 12-013, ALJ No. 2010-SOX-31 (ARB Apr. 25, 2013), the ARB found that substantial evidence supported the ALJ's finding that the Complainant's SOX complaint was filed timely. The ALJ determined the date on which the Complainant was constructively discharged, and then obtained the envelope from OSHA that the Complainant had used to mail his complaint. Based on the postmark on that envelope, the ALJ determined that the complaint was timely. See 29 C.F.R. § 1980.103(d). On appeal, the Respondent argued that date OSHA received the complaint was the date of filing and not the date of postmark. The ARB held that "as a matter of law the ALJ was correct in relying upon the ... mailing postmark date as the date upon which Barrett filed his OSHA complaint." USDOL/OALJ Reporter at 6.

The Respondent also claimed it was error for the ALJ to ask OSHA for the postmarked envelope and that the Complainant himself should have entered this into evidence. The ARB found that nothing prevented the Respondent from cross-examining the Complainant regarding when he mailed the letter, and that introducing the envelope into evidence did not prejudice the Respondent. The ARB also found that the postmarked envelope was a matter of public record of which the ALJ could have taken official notice. 29 C.F.R. § 18.201.

PROTECTED ACTIVITY UNDER SOX; REPORT OF MISSTATEMENTS IN DRAFT FORM 10-K; REPORTING AN ACTUAL VIOLATION AT TIME OF REPORTING IS NOT REQUIRED; SOX PROTECTION INCLUDES BELIEF THAT A VIOLATION IS ABOUT TO OCCUR OR IS IN THE STAGES OF OCCURRING

In Barrett v. e-Smart Technologies, Inc. , ARB Nos. 11-088, 12-013, ALJ No. 2010-SOX-31 (ARB Apr. 25, 2013), the ALJ held that the Complainant engaged in protected activity because he reported misstatements and omissions in an SEC Form 10-K draft that he reasonably believed would mislead investors by distorting the company's current capabilities. The Respondent claimed on appeal that the Complainant's complaints about the 10-K were not protected because they raised concerns about future SOX violations. The Respondent argued that a SOX complainant's beliefs must involve an actual violation occurring at the time the employee raises the concern. The ARB rejected this contention, stating that "reporting an actual violation is not required. A complainant can engage in protected activity when he reports a belief of a violation that is about to occur or is in the stages of occurring." USDOL/OALJ Reporter at 6 (citation omitted).

CONSTRUCTIVE DISCHARGE; CONSIDERATION OF DISCRETE CONDUCT THAT OCCURRED OUTSIDE THE LIMITATIONS PERIOD

In Barrett v. e-Smart Technologies, Inc. , ARB Nos. 11-088, 12-013, ALJ No. 2010-SOX-31 (ARB Apr. 25, 2013), the ALJ based his finding of constructive discharge on a wide pattern of aggravating events. The Respondent contended on appeal that a party alleging constructive discharge cannot rely on events that occurred more than ninety days prior to filing the complaint. The ARB held that "the ALJ correctly held that non-discrete conduct outside the statute of limitations can be relied upon when the earlier conduct only became actionable once other conduct occurring within the limitations period occurred. Cf. Nat'l R.R. Pass. Corp. v. Morgan , 536 U.S. 101 (2002)." USDOL/OALJ Reporter at 7.

ALJS ARE DISCOURAGED FROM DISCUSSING PRIMA-FACIE-CASE FRAMEWORK APPLICABLE BEFORE OSHA ONCE CASE HAS BEEN FULLY TRIED

In Barrett v. e-Smart Technologies, Inc. , ARB Nos. 11-088, 12-013, ALJ No. 2010-SOX-31 (ARB Apr. 25, 2013), the Respondent argued on appeal that the ALJ erred by applying a prima-facie-evidence causation inference rather than a standard of proof. The ARB found that although the ALJ had been loose with language speaking to the prima-facie-case framework applicable before OSHA, he actually applied the correct "contributing factor" standard of proof and not merely an inference of causation. In a footnote, the ARB cited a 2003 decision in which it had noted that ALJ are discouraged from unnecessary discussion of whether a whistleblower has established a prima facie case when a case has been fully tried.

ADVERSE INFERENCE BASED ON PARTY'S FAILURE TO CALL CRITICAL WITNESS WITHIN THE PARTY'S CONTROL

In Barrett v. e-Smart Technologies, Inc. , ARB Nos. 11-088, 12-013, ALJ No. 2010-SOX-31 (ARB Apr. 25, 2013), the Respondent argued on appeal that the ALJ improperly drew an adverse inference, when determining whether the Respondent established the clear-and-convincing-evidence affirmative defense, from the Respondent's failure to offer evidence from the persons most knowledgeable about the Complainant's circumstances. The ARB held:

The ALJ did not err in drawing a negative inference from Respondent's failure to call critical witnesses within its control. See Underwriters Labs., Inc. v. NLRB , 147 F.3d 1048, 1054 (9th Cir. 1998) ("[W]hen a party fails to call a witness who may reasonably be assumed to be favorably disposed to the party, an adverse inference may be drawn regarding any factual question on which the witness is likely to have knowledge.").

USDOL/OALJ Reporter at 8. The ARB also noted that the ALJ had found, independently of any adverse inferences, that the Respondent's evidence fell short of meeting the clear-and-convincing-evidence burden of proof.

BACK PAY CALCULATION; ALJ DID NOT ERR IN USING SALARY COMPLAINANT COULD HAVE EARNED HAD RESPONDENT NOT TAKEN AWAY HIS ABILITY TO EARN THAT AMOUNT

In Barrett v. e-Smart Technologies, Inc. , ARB Nos. 11-088, 12-013, ALJ No. 2010-SOX-31 (ARB Apr. 25, 2013), when the Complainant became the Chief Operating Officer, his salary was $377,000. Later, when restructuring engineer's salaries to cut base pay, the Complainant reduced his base pay to $245,000 as a symbol of solidarity. If performance goals were met, the employees could earn back the difference. When awarding back pay on the Complainant's successful SOX whistleblower complaint, the ALJ used the higher rate of pay. The Respondent argued on appeal that the Complainant had no contractual or statutory right to the higher annual rate of pay, and that the pay reduction was a discrete discriminatory act that the Complainant was barred from challenging because he did not timely challenge it. The ARB found that the Respondent was mischaracterizing the issue. The ARB stated:

The pay reduction was not alleged as a discrete discriminatory act � it was simply a circumstance relevant to determining sufficient damages. The [SOX limitations] period ... is not relevant for purposes of determining damages for victims of a hostile work environment (or constructive discharge). SOX's make-whole remedy applies to the proven damages for actionable incidents incurred following the protected activity. See Nat'l R.R. Pass. Corp. v. Morgan , 536 U.S. 101, 119 (2002) ("timeliness requirement does not dictate the amount of recoverable damages"). The protected activity took place in mid-August. Following this protected activity, a series of escalating non-discrete adverse events occurred, eventually resulting in a cause of action on or around October 17, 2007. When e-Smart took away his duties in retaliation for his internal reports concerning the 10-K draft, it took away Barrett's ability to earn the full salary for which he was initially hired. The ALJ did not err in using Barrett's original salary of $377,000 to effectuate the requisite "make whole" remedy. 18 U.S.C.A. § 1514A(c)(1).

USDOL/OALJ Reporter at 9.

ATTORNEY'S FEES; APPLICATION OF LAFFEY MATRIX TO CASE TRIED IN SAN FRANCISCO; FEE AWARD IS NOT LIMITED TO AMOUNT COMPLAINANT ACTUALLY PAID HIS ATTORNEYS

In Barrett v. e-Smart Technologies, Inc. , ARB Nos. 11-088, 12-013, ALJ No. 2010-SOX-31 (ARB Apr. 25, 2013), the ARB affirmed the ALJ's use of the Laffey Matrix in calculating the attorney fee rate for the San Francisco market. On appeal, the Respondent argued that the attorney fee award was erroneous on several grounds, including that the Ninth Circuit had criticized the use of the Laffey Matrix in California because the matrix is based on rates in D.C., and because the award should have been based on the amount the Complainant actually paid in fees. The ARB found that the ALJ's fee award was supported and reasonable. The ARB noted the Complainant's argument that the San Francisco market has a 35% premium as compared with a 24% premium for the D.C. market on which the Laffey Matrix is based. The ARB also stated: "We reject e-Smart's claim that fees should match costs or the rates actually billed to the clients. To the contrary, the hourly rate is determined by reference "to the prevailing market rates in the relevant community." Blum v. Stenson , 465 U.S. 886, 895 (1984) (rejecting an argument that attorney's fees for nonprofit legal service organizations should be based on cost); Missouri v. Jenkins by Agyei, 491 U.S. 274, 286 (1989)." USDOL/OALJ Reporter at 10.

ATTORNEY'S FEE AWARD DETERMINATION RETURNED TO ALJ FOR FURTHER CONSIDERATION BECAUSE EARLIER REMAND ON MERITS OF THE CASE MIGHT INFLUENCE THE SIZE OF THAT AWARD

In Rudolf v. National Railroad Passenger Corp. (AMTRAK) , ARB No. 11-055, ALJ No. 2009-FRS-15 (ARB Apr. 25, 2013), the ARB had earlier affirmed in part, and reversed in part, the ALJ's decision on the merits, and remanded for further proceedings. The ALJ's attorney fee determination, which had been based on the ALJ's erroneous and/or unclear analysis of the merits of the claims was also thus remanded to the ALJ for further consideration once the remand decision on the merits was rendered. The ARB directed:

If, on remand, the ALJ concludes that Amtrak has violated the FRSA beyond his initial findings and, as a result, is presented with a motion seeking renewed consideration of Rudolph's attorney's fee request, the ALJ should put aside purely mathematical calculations and focus on the relief to which Rudolph would be entitled, including reinstatement, back pay, and compensatory damages in determining an appropriate award of an attorney's fee.

USDOL/OALJ Reporter at 2.

[STAA Whistleblower Digest V B 2]
PROTECTED ACTIVITY; REFUSAL TO DRIVE UNDER SECTION 31105(a)(1)(B)(i) [THE "ACTUAL VIOLATION CLAUSE"] DOES NOT REQUIRE A SHOWING THAT THE COMPLAINANT SOUGHT TO HAVE THE CONDITION CORRECTED, AND WAS REFUSED

[STAA Digest IV G]
CONTRIBUTING CAUSE; PROTECTED REPORT OF AIR LINE PROBLEM FOUND TO BE INEXTRICABLY INTERTWINED WITH REFUSAL TO DRIVE AND SUBSEQUENT TERMINATION, EVEN THOUGH WORK REFUSAL STEMMED IN LARGE PART FROM CONCERN ABOUT THE WEATHER

In Tablas v. Dunkin Donuts Mid-Atlantic , ARB No. 11-050, ALJ No. 2010-STA-24 (ARB Apr. 25, 2013), the Complainant, and experienced driver, told the dispatcher that he was apprehensive about an assigned trip to Massachusetts because of winter weather, but was told that he must make the attempt and that there was no bad weather at the depot in New Jersey. Later the Complainant asked not to be required to complete the trip because of the weather, but was told that no other drivers had reported problems and that if he encountered problems company policy was to pull over at the next safe place. The Complainant finished the first leg of his dispatch, but realizing that he left his EZ pass in his regular truck, returned to the depot to pick it up. Upon making two sharp right turns in the depot, the rig's air lines became unhooked. The Complainant prepared a report and submitted it to the dispatcher. The dispatcher called for a repair. The Complainant asked if he could come back in the morning to continue the trip after the repair, stating that he would not be getting to the destination in Massachusetts any later considering the state of the roads. When he returned in the morning, he was told that another driver had transported the load, and that he could go home for the day. A few days later, the Complainant was fired for refusing to complete the run.

Following a hearing, the ALJ determined that the Complainant's refusal to drive based on the air lines problem was not protected activity because, although the Complainant reported the problem, there was no evidence that he sought to have it corrected and was refused. The ALJ also found that the refusal to drive because of the weather conditions was not protected activity. The ALJ found that some earlier complaints about overweight loads were protected activity, but that there had been no causal connection between that activity and his termination.

On appeal, the ARB focused on the refusal to drive based on the problem with the air lines, and did not reach the refusal to drive based on the weather. The ARB found the ALJ erred in her analysis. The ARB explained:

   Tablas argued below that his complaints were protected under Section 31105(a)(1)(B)(i) and (B)(ii). Subsection (B)(i) protects an employee when "the employee refuses to operate a vehicle because the operation violates a regulation, standard or order of the United States related to commercial motor vehicle safety or health." 49 U.S.C.A. § 31105(a)(1)(B)(i). Subsection (B)(ii) protects an employee who refuses to drive because of a reasonable apprehension of serious injury to himself or the public because of the vehicle's unsafe condition, and requires a showing that the employee "sought from the employer, and been unable to obtain, correction of the unsafe condition." 49 U.S.C.A. § 31105(a)(1)(B)(ii), (a)(2). STAA's work refusal clause thus protects two categories of work refusals, commonly referred to as the "actual violation" and "reasonable apprehension" categories. Pollock v. Continental Express, ARB Nos. 07-073, 08-051; ALJ No. 2006-STA-001, slip op. at 8 (ARB Apr. 7, 2010). Under the actual violation category, i.e., subsection (B)(i), the refusal to drive is protected where operating a vehicle would have violated a motor vehicle regulation, standard, or order. Id. Unlike subsection (B)(ii), which requires the complainant to have requested and been denied correction of the unsafe condition, no other showing is required under (B)(i).

USDOL/OALJ Reporter at 6 (footnote omitted). The ARB found that the facts of the case satisfied Section (B)(i), and therefore the Complainant engaged in protected activity.

The ARB went on to find that under the "contributing factor" test, although the work refusal stemmed in part from the Complainant's concerns about the weather, the reporting of the air lines problem contributed to, and was inextricably intertwined with the Complainant's termination in violation of the STAA.

The ARB remanded for the ALJ to determine "whether the company can show, by clear and convincing evidence, that it would have taken the same action against Tablas absent the protected activity.... In making this determination, the record evidence in this case appears to show no basis for termination other than Tablas' refusal to drive the truck the night of December 13, 2007, which we have determined violated the Act since the refusal was protected activity under section 31105(a)(1)(B)(i). Nonetheless, we remand to the ALJ to make that determination in the first instance." USDOL/OALJ Reporter at 9 (citation omitted).

TIMELINESS OF OPENING BRIEF BEFORE ARB; WHERE ARB HAD IN AN ORDER TO SHOW CAUSE DIRECTED THAT OPENING BRIEF BE RECEIVED BY THE ARB BY A CERTAIN DATE, MERE PROOF OF TIMELY MAILING OF BRIEF INSUFFICIENT TO SUPPORT MOTION FOR RECONSIDERATION OF EARLIER DENIAL; IN SUCH CIRCUMSTANCES, DUE DILIGENCE MANDATES THAT LITIGANT CONTACT THE ARB TO VERIFY TIMELY RECEIPT AND SEEK PERMISSION TO FAX IF RECEIPT IS NOT CONFIRMED

In Castillo v. Bayside Engineering, Inc. , ARB No. 11-046, ALJ No. 2011-NTS-2 (ARB Apr. 24, 2013), the ARB had dismissed the Complainant's appeal for failure to respond to the Board's order to show cause in regard to the failure to timely file an opening brief. The Complainant sought reconsideration arguing that he had in fact filed an opening brief in response to the order to show cause. In support, the Complainant submitted certified mail receipts. The receipts showed a mailing to the same zip code as the ARB's zip code; but they did not show where, when, or if the envelopes were delivered. The ARB denied reconsideration because even accepting as fact that the Complainant timely placed his brief in the mail, the fact remained that the ARB did not receive the brief as ordered. The ARB noted that, given that its order to show cause mandated that the brief be received by a certain date, the Complainant demonstrated a lack of diligence in failing to contact the ARB to determine if it had been received as ordered. The ARB stated that had he done so and learned that the brief had not ben received, he could have sent the brief by facsimile and met the deadline.

The ARB also noted that the brief that was purportedly submitted did not comply with the ARB's order to show cause because the Board's order had directed that an explanation be provided for why the brief had not been timely filed in response the Board's earlier briefing order, and no explanation had been proffered. Finally, the ARB noted that given the Complainant's pro se status, it had reviewed the untimely brief to determine if affirmance of the ALJ's decision would result in a grave miscarriage of justice. The ARB found no error of fact or law identified in the brief that would have compelled the ARB to reverse the ALJ's determination that the original complaint had not been timely filed and that equitable tolling was not warranted.

DAMAGES FOR PAIN AND SUFFERING; ALJ'S DISCRETION TO LIMIT AWARD WHERE COMPLAINANT'S EMOTIONAL DISTRESS WAS NOT ENTIRELY ATTRIBUTABLE TO THE ADVERSE ACTION

PUNITIVE DAMAGES; ALTHOUGH PROTECTED ACTIVITY CONTRIBUTED TO ADVERSE ACTION, SUBSTANTIAL EVIDENCE SUPPORTED ALJ'S FINDING THAT RESPONDENT DID NOT ACT WITH SUCH CALLOUS DISREGARD FOR THE COMPLAINANT'S RIGHTS THAT PUNITIVE DAMAGES WERE WARRANTED

In Bailey v. Consolidated Rail Corp. , ARB Nos. 13-030, 13-033, ALJ No. 2012-FRS-12 (ARB Apr. 22, 2013), the Complainant petitioned for review of the ALJ's award of $4,000 for pain and suffering, seeking an increase to $100,000 in compensatory damages for pain and suffering, and $250,000 in punitive damages. The ARB found that the $4,000 award was well within the ALJ's discretion and supported by substantial evidence. The ALJ found that the Complainant's emotional distress was not entirely due to the Respondent's adverse action, and found that the Respondent had not acted with such callous disregard of the Complainant's rights that punitive damages were warranted. The ALJ rejected the Complainant's claims that company managers harbored antagonism or hostility against him and were conspiring to terminate his employment. Substantial evidence supported the ALJ's finding that the Complainant's protected activity was a contributing factor in the adverse action, but that the evidence did not rise to the level of establishing grounds for awarding punitive damages.

In an AIR21 whistleblower case, the ARB affirmed the ALJ's holdings that the Complainant's protected activity did not contribute to the Respondent's termination of the Complainant's employment, and that even if it had, the Respondent proved by clear and convincing evidence that it would have terminated the Complainant's employment in any event because of behaviorial issues in the workplace.

In an environmental whistleblower case, the Complainant failed to prove that his protected activity caused or was a motivating factor in the Respondent's termination of his employment.