USDOL/OALJ Reporter: ARB Decision Caselist - April 2014

[STAA Digest V B 2 d]
DISPATCHING COMPLAINANT ON DELIVERY THAT COULD NOT BE MADE ON THE CONTRACTOR'S SCHEDULE WITHOUT VIOLATING FMCS HOURS OF SERVICE REGULATIONS

In Anderson v. Timex Logistics , ARB No. 13-016, ALJ No. 2012-STA-11 (ARB Apr. 30, 2014), the Respondent dispatched the Complainant to transport a load from Seattle to San Francisco, a distance of over 800 miles requiring more than 11 hours of driving.� The broker with which the Respondent contracted stipulated that this was a "hot shipment" and that the Respondent's drivers were expected to drive straight through.� The Respondent directed the Complainant to take the assignment by himself.� After driving 9.75 hours, the Complainant stopped for a rest break.� The broker checked on the status of the delivery, and the Respondent tracked down the Complainant during his break. Another driver was sent to complete the run.� Shortly after this incident, the Complainant was terminated from employment.� The termination listed three incidents that contributed to the termination decision, the last being that the Complainant missed the San Francisco delivery appointment with the consequence that the Respondent was charged back $1500 by the broker for sending another company to pick up that load from the Complainant's truck.� The ARB affirmed the ALJ's determination that the termination violated the STAA whistleblower provision at 49 U.S.C. § 31105(a)(1)(B)(i) because the Respondent was prohibited by FMCS regulation from requiring a driver to operate a commercial vehicle more than 11 consecutive hours following 10 consecutive hours off-duty.� See 49 C.F.R. § 395.3(a) (2010).� The ARB noted that the actual driving time from Seattle to San Francisco was approximately 16 hours, and the Complainant could not have legally performed the assigned run without running afoul of either the broker's delivery requirements or the FMCS hours of service regulations.� Although the termination letter cited several reasons for the firing, substantial evidence established that the San Francisco dispatch contributed to the Respondent's termination decision.

[STAA Digest IX B 3 a]
MITIGATION OF DAMAGES; COMPLAINANT'S FAILURE TO PRESENT EVIDENCE THAT HE APPLIED FOR OTHER JOBS DOES NOT NEGATE RESPONDENT'S BURDEN OF PROOF ON MITIGATION

In Anderson v. Timex Logistics , ARB No. 13-016, ALJ No. 2012-STA-11 (ARB Apr. 30, 2014), the Respondent challenged the ALJ's back wages award on the ground that the Complainant failed to mitigate his damages during his period of unemployment, citing the fact that the Complainant had not produced a single application showing�that he sought other work. The ARB affirmed the ALJ's award,'stating that it is the Respondent's burden to establish that substantially equivalent positions were available to complainant and that complainant failed to use reasonable diligence in attempting to secure such positions, and that the Respondent had failed to present such evidence.

[STAA Digest IX B 1]
DAMAGES FOR EMOTIONAL DISTRESS MAY BE BASED ON COMPLAINANT'S UNREFUTED TESTIMONY, EVEN ABSENT MEDICAL EVIDENCE

In Anderson v. Timex Logistics , ARB No. 13-016, ALJ No. 2012-STA-11 (ARB Apr. 30, 2014), the Respondent challenged the ALJ's award of $50,000 for emotional distress.� The Respondent based the challenge on the Complainant's failure to proffer medical evidence to support the award. The ARB stated that it has "affirmed compensatory damage awards for emotional distress, even absent medical evidence, where the lay witness statements are credible and unrefuted."� USDOL/OALJ Reporter at 7 (citations omitted).� Here, the record supported the ALJ's award as the Complainant "provided unrefuted testimony regarding how his discharge has affected his credit, savings, and living circumstances.� Id . at 8.

[STAA Digest IX D 4]
PUNITIVE DAMAGES UNDER THE STAA MAY BE BASED ON RESPONDENT'S CALLOUS DISREGARD FOR THE COMPLAINANT'S RIGHTS AND WELFARE

In Anderson v. Timex Logistics , ARB No. 13-016, ALJ No. 2012-STA-11 (ARB Apr. 30, 2014), the ARB found that the record supported the ALJ's award of punitive damages in the amount of $12,500.� The ALJ found that the Respondent had set the Complainant up for failure by dispatching him for a delivery he could not legally complete under the FMCS hours of service regulation, that after firing him the Respondents did not help him get home showing callous disregard for the Complainant's welfare, and the Respondent withheld payment of $1,879.50 without good reason.� The ARB also noted that the Complainant had testified extensively about the distress he suffered just before and after his termination.� The ARB stated that punitive damages are warranted both where there has been reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law.

[STAA Digest VII B 2]
INDIVIDUAL LIABILITY UNDER THE STAA; REQUISITE FACTOR IS WHETHER THE INDIVIDUAL HAS THE ABILITY TO HIRE, TRANSFER, PROMOTE, REPRIMAND OR DISCHARGE THE COMPLAINANT

In Anderson v. Timex Logistics , ARB No. 13-016, ALJ No. 2012-STA-11 (ARB Apr. 30, 2014), the ARB held that the ALJ correctly found the Respondent's owner (who had made the final decision to fire the Complainant) individually liable for payment of monetary damages to the Complainant, but erred in finding such liability for the Respondent's holding operations manager and dispatcher.� See 49 U.S.C.A. § 31105(a)(1) (a person may not discharge an employee for conduct protected by the STAA); 29 C.F.R. § 1978.101(k) (defining a person as one or more individuals); Assistant Sec'y of Labor v. Bolin Assocs. , No. 1991-STA-004, slip op. at 5 - 6 (Sec'y Dec. 30, 1991).� The latter was not an owner, and testified that she was not really in a position to fire people at the company. The ARB stated that the "requisite control over an employee for purposes of individual liability includes "the ability to hire, transfer, promote, reprimand, or discharge the complainant . . . ." USDOL/OALJ Reporter at 8 (citations omitted).� Here, the operations manager had recommended the Complainant's firing, but she did not have the requisite control over the Complainant's employment for individual liability under the STAA.� In a footnote, the ARB distinguished the type of "control" that is analyzed in "joint employer" situations where the ability to influence another employer to take actions against a complainant is at issue.

[Nuclear & Environmental Digest XII D 1 a]
PROTECTED ACTIVITY; SWDA'S COVERAGE OF EMPLOYEES WHOSE DUTIES ARE AS A SAFETY OFFICIAL

[Nuclear & Environmental Digest XI A 2 a]
MOTIVATING FACTOR; TEMPORAL AND DIRECT EVIDENCE

In Joyner v. Georgia-Pacific Gypsum, LLC , ARB No. 12-028, ALJ No. 2010-SWD-1 (ARB Apr. 25, 2014) erratum (ARB June 17, 2014), the Complainant was the Respondent's Senior Regional Environmental Resource officer. He was responsible for environmental management for a gypsum plant.� One of his responsibilities was to prepare a letter certifying compliance with a 2006 consent order the Respondent had entered into with the State of Georgia Department of Natural Resources, Environmental Protection Division concerning the stockpiling of rejected wallboard. � The consent order required the Respondent to reduce such stockpiles and to allow'surveys to determine compliance with the consent order. Rejected wallboard could be used as riser boards (spacers for stacking and transporting of finished wallboard). � In 2008, the Respondent's plant manager authorized storing riser materials outside the plant because of lack of space inside.� During a state inspection review, the inspector informed the Complainant that the externally stockpiled riser material was'subject to the consent order and needed to be included in the survey.� The Complainant brought the inspector to the plant manager; the manager stated his belief that the riser material was product not subject to the consent order.� In a later conference call that included the Complainant, the Respondent's attorney advised that the riser material was not subject to the consent order.� The Complainant was later informed that the Respondent had concluded that the riser material was not subject to periodic compliance reviews under the consent order. � When the time came for the Complainant to submit a draft compliance certification letter to the plant manager and a regional manager, the Complainant did not raise any concerns about the stockpiled riser material. At the ALJ hearing the Complainant testified that he did not do so because he did not think it a good career move knowing that the managers already told him not to raise the issue.� The same day of the submission of the draft compliance letter, however, the Complainant complained to the Respondent's hotline alleging numerous violations, including the failure to count the riser materials in the consent order survey.� The Complainant subsequently filed a written "Guideline Complaint."� About one month later the Complainant was terminated from employment by the Senior VP of Operations and Compliance.� That VP testified that the reason for the termination was that the Complainant either lied in his Guideline Complaint or prepared a compliance letter he knew was false.� The VP further concluded that the compliance letter was accurate and that the Guideline Complaint of wrongdoing by the plant manager was false and made in bad faith.

SWDA's coverage of employees whose duties are as a safety official

The ALJ determined in a decision granting partial summary that the Complainant's complaints to his supervisors were not protected activity because they were within the scope of his job duties as a safety official of the company.� The ARB stated that although its decision on appeal did not turn on this issue, the ALJ's ruling was legal error needing correction.� The ARB wrote:

The ARB has established that employees who report safety or environmental concerns as part of their job responsibilities engage in protected activity. ...� As the Board noted in Lee v. Parker-Hannifin Corp. , ARB No. 10-021, ALJ No. 2009-SWD-003 (ARB Feb. 29, 2012), the SWDA has been interpreted to extend whistleblower protection to include internal complaints made to supervisors. ...� Moreover, the ARB has consistently held that "employees who report safety concerns that they reasonably believe are violations of [federal whistleblower statutes] are engaging in protected activity, regardless of their job duties." ...� Federal appellate courts agree.� See Trimmer v. U.S. Dep't of Labor , 174 F.3d 1098 (10th Cir. 1999); Stone & Webster Eng'g Corp. v. Herman , 115 F.3d 1568 (11th Cir. 1997); Bartlik v. U.S. Dep't of Labor , 73 F.3d 100 (6th Cir. 1996); Bechtel Constr. Co. v. Sec'y of Labor , 50 F.3d 926 (11th Cir. 1995); Kansas Gas & Elec. Co. v. Brock , 780 F.2d 1505 (10th Cir. 1985); Mackowiak , 735 F.2d 1159.

USDOL/OALJ Reporter at 12 (some citations omitted).

Motivating factor analysis

The ARB then turned to the Guideline Complaint made by the Complainant.� The ARB affirmed the ALJ's findings that this complaint constituted SWDA protected activity, but found that the ALJ erred in determining that this complaint was not a motivating factor for the termination. Under the SWDA, the complainant must show that the protected activity "caused or was a motivating factor in the adverse action alleged in the complaint." 29 C.F.R. § 24.109(b)(2). The complainant only needs to show that the protected activity was a motivating factor, not the motivating factor. The ARB found that the uncontroverted evidence in the instant case satisfied this criteria. There was temporal proximity between the protected activity and the adverse action. More importantly, there was direct evidence that the protected activity motivated the adverse action. The ARB pointed to testimony by the Employer's HR Director indicating that the termination was tied to information received from the Complainant's Guideline complaint. The ARB concluded: "But for the Guideline Complaint, there would have been no investigation into whether a false certification letter had been submitted or of Joyner's involvement in the submission of that letter." The ARB also pointed to testimony by the VP who had fired the Complainant (Durkin) that he had concluded that the Complainant either lied in the Guideline Complaint or misled his immediate supervisors about the compliance letter for which he was primarily responsible. The ARB stated: "Given these facts, if Durkin terminated Joyner's employment because of his involvement in preparing the compliance certification letter, then the rationale for holding that Joyner's protected activity was a motivating factor in his suspension is equally applicable to Durkin's termination decision; but for Joyner's Guideline Complaint, there would have been no investigation into whether a false certification letter had been submitted or of Joyner's involvement in the preparation of that letter." The ARB held that "[i]t is no defense to the determination that the Guideline Complaint was a motivating factor in the employment termination decision to assert that Joyner made false claims of violation of the SWDA."

Finally, the ARB considered whether the Employer could avoid liability under the SWDA by proving by a preponderance of the evidence that it would have taken the same unfavorable personnel action in the absence of the complainant's protected behavior. See 29 C.F.R. § 24.109(b)(2). The ARB found that the evidence in the instant case was so compelling that the Respondent could not make such a showing, and that a remand to the ALJ was unnecessary. The ARB found that the Complainant's Guideline Complaint was the protected activity in this case, and that absent the Guideline Complaint there had been no basis or reason offered by the Respondent for terminating the Complainant's employment.

[Nuclear & Environmental Digest VIII B 1 d]
AUTHORITY OF ARB TO DECIDE ISSUE WITHOUT REMAND TO ALJ WHERE FACTS SO COMPELLING THAT LITIGANT COULD NOT MAKE A CONTRARY SHOWING ON REMAND

In Joyner v. Georgia-Pacific Gypsum, LLC , ARB No. 12-028, ALJ No. 2010-SWD-1 (ARB Apr. 25, 2014) erratum (ARB June 17, 2014), the ARB reversed the ALJ's finding that the Complainant had not shown that his protected activity was a motivating factor in his termination from employment. The ARB went on to consider whether the Employer could avoid liability under the SWDA by proving by a preponderance of the evidence that it would have taken the same unfavorable personnel action in the absence of the complainant's protected behavior. See 29 C.F.R. § 24.109(b)(2). The ARB found that the evidence in the instant case was so compelling that the Respondent could not make such a showing, and that a remand to the ALJ was unnecessary. In a footnote, the ARB cited two federal court decisions:

See Hussain v. Gonzales , 477 F.3d 153 (4th Cir. 2007) (when the result of a remand is a foregone conclusion amounting to a mere formality, the "rare circumstances" exception to the remand rule is met and remand is unwarranted); Zhong v. U.S. Dep't of Justice , 461 F.3d 101, 113 (2d Cir. 2006) (stating that an agency error does not warrant remand when it is clear from the record "that the same decision is inevitable on remand, or, in short, whenever the reviewing panel is confident that the agency would reach the same result upon a reconsideration cleansed of errors") (citation omitted).

USDOL/OALJ Reporter at n.5.

[Nuclear & Environmental Digest XI D 1]
CLEAR AND CONVINCING EVIDENCE DEFENSE; ARB CLARIFIES ANALYSIS

In Speegle v. Stone & Webster Construction, Inc. , ARB No. 13-074, ALJ No. 2005-ERA-6 (ARB Apr. 25, 2014), the Complainant was a journeyman painter for the Respondent who strongly objected to a plan by the Respondent to certify apprentice painters to work applying protective paint coating in the Torus area of a nuclear reactor. The Complainant believed that the plan was a nuclear safety risk because apprentice painters lacked sufficient experience to safely apply protective paint coatings. The Complainant repeatedly raised his concerns. At a meeting at which the Complainant's superior asked a journeyman painter to read an Engineering Work Request (EWR), the Complainant stated to the supervisor that "management can take that G-55" and "shove it up their ass." The Complainant admitted that he "may" also have told the supervisor, "Thank you. You just gave all these people's jobs away." The Complainant's employment was subsequently terminated for insubordination, and the Complainant filed an ERA whistleblower complaint. Following a lengthy appeals process, the ARB reversed the ALJ's determination that protected activity did not contribute to the adverse action, the ARB finding that there was no evidence of unprofessional conduct or insubordinate conduct by the Complainant that was unrelated to his protected activity and that the Complainant's insubordinate acts were "inextricably intertwined" with protected activity. The ARB remanded for the ALJ to determine whether the Respondent could show, by clear and convincing evidence, that it would have taken the same action against the Complainant absent the protected activity. On remand, the ALJ noted the analytical difficulty of trying to determine if the Respondent would have terminated the Complainant if he had not voiced the earlier protected complaints. The ALJ, however, found it highly probable the Respondent would have fired the Complainant because (1) the Complainant was one of a group of employees complaining about the program and none of the other employees had adverse action taken against them; (2) the Respondent's officials believed that the Complainant's statement meant he would refuse to comply with their decision and had been insubordinate; (3) the Complainant's statement was made after several experts had addressed the safety issue; (4) the Complainant's "'statement would have still been profane, public, and made by a leader immediately following a �last word' discussion and clear instructions that the substantive decision had been made and would be implemented, and any further objections should be made to higher levels of management.'" USDOL/OALJ Reporter at 10 (ARB quoting ALJ's decision).

On appeal, the ARB found that the ALJ's analysis of the "clear and convincing" defense had been materially incomplete, necessitating another remand for the ALJ's consideration of the matter pursuant to the ARB's discussion of the defense. The ARB wrote:

    To avoid paying damages in this case, the plain language of the ERA whistleblower statute makes clear that the employer must prove by "clear and convincing evidence" that it activity." The plain meaning of the phrase "clear and convincing" means that the evidence must be "clear" as well as "convincing." "Clear" evidence means the employer has presented evidence of unambiguous explanations for the adverse actions in question. "Convincing" evidence has been defined as evidence demonstrating that a proposed fact is "highly probable." The burden of proof under the "clear and convincing" standard is more rigorous than the "preponderance of the evidence" standard and denotes a conclusive demonstration, i.e., that the thing to be proved is highly probable or reasonably certain. In Colorado v. New Mexico , 467 U.S. 310, 316 (1984), the Supreme Court defined "clear and convincing evidence" as evidence that suggests a fact is "highly probable" and "immediately tilts" the evidentiary scales in one direction. We find that the Court's description in Colorado v. New Mexico provides additional useful guidance for the term "clear and convincing" evidence, and we incorporate it into our application of the ERA whistleblower statute.

    In addition to the high burden of proof, the express language of the statute requires that the "clear and convincing" evidence prove what the employer "would have done" not simply what it "could have" done. Therefore, it is not enough to show that Speegle's conduct provided a sufficient independent reason to suspend and fire him, but that the employer would have done so in this case solely based on a single outburst in a meeting. There must be evidence in the record that demonstrates in a convincing manner why the employer "would have fired" Speegle, a longtime employee, for a single outburst in a staff meeting. The employer may have direct or circumstantial evidence of what it "would have done." The circumstantial evidence can include, among other things: (1) evidence of the temporal proximity between the non-protected conduct and the adverse actions; (2) the employee's work record; (3) statements contained in relevant office policies; (4) evidence of other similarly situated employees who suffered the same fate; and (5) the proportional relationship between the adverse actions and the bases for the actions.

    The last factor, and thorniest in this case, of the "clear and convincing" defense focuses on what would have happened in the "absence of" the protected activity. This is another ambiguous term in the statute with which the ALJ understandably wrestled but only captured part of its significance. We think the ALJ too narrowly applied this factor by only excising the protected activity without also removing the facts logically connected to the protected activity. To properly decide what would have happened in the "absence of" protected activity, one must also consider the facts that would have changed in the absence of the protected activity. In other words, like this case, if the protected activity created tension and animosity before an employee was fired for a lawful reason, then the absence of the protected activity means the absence of the related animosity and tension. Similarly, if the protected activity gave meaning and clarity to an outburst, then the fact-finder must keep in mind that the outburst may become ambiguous in the "absence of" protected activity that provided context to the outburst. To sum up the factors that must be considered in applying the "clear and convincing" defense, we find that the statute requires us to consider the combined effect of at least three factors applied flexibly on a case-by-case basis: (1) how "clear" and "convincing" the independent significance is of the non-protected activity; (2) the evidence that proves or disproves whether the employer "would have" taken the same adverse actions; and (3) the facts that would change in the "absence of" the protected activity.

USDOL/OALJ Reporter at 10-12 (footnotes omitted).

The ARB found that the ALJ had touched on each of these three factors to some degree in his order "but that material findings are missing, preventing us from reviewing whether the ALJ's final ruling complied with the law." Id . at 12. One member of the ARB dissented, finding that the ALJ had fully considered sufficient evidence for determining that the Respondent met its burden under the facts of this particular case.