USDOL/OALJ Reporter: ARB Decision Caselist - April 2016

APPEAL OF ALJ’S APPROVAL OF SETTLEMENT AGREEMENT; ARB DECLINES REVIEW FOR LACK OF JURISDICTION WHERE APPEAL WAS GROUNDED SOLELY ON COLLATERAL ATTACKS TO FACIALLY VALID AGREEMENT

In Gupta v. Compunnel Software Group, Inc. , ARB No. 16-056, ALJ No. 2011-LCA-45 (ARB Apr. 29, 2016), the parties negotiated a settlement of the case while the matter was before the ALJ on remand. The settlement agreement was submitted to the ALJ for approval. The ALJ approved the agreement and dismissed the case. The Prosecuting Party, the H-1B worker, appealed and contested the validity of the settlement agreement. The ARB declined to accept the petition for review. The ARB wrote:

Gupta’s appeal rests entirely on collateral attacks against the Settlement Agreement, including fraud, duress, lack of consideration, lack of voluntariness, lack of initials on every page, and contradiction of public policy. The Board is an administrative body with only the authority emanating from statutes, implementing regulations, and delegations of authority. Gupta points to no statute or regulation that authorizes the Board to adjudicate collateral attacks to a facially valid contract (i.e., a settlement agreement). We do not suggest that we can never review an ALJ’s dismissal of a case involving settlement agreements under the INA, and we will not speculate as to every conceivable case where we may have authority to review the ALJ’s dismissal of a case. In this case, as confirmed by Gupta’s own motion, the Settlement Agreement appears valid on its face as it is signed, no party challenges the signatures, and the agreement expressly identifies this case as part of the settlement. Because Gupta raises only collateral attacks to the validity of the settlement agreement and does not raise any appealable issue, we lack jurisdiction and decline to accept his petition.

TIMELINESS OF PETITION FOR ARB REVIEW; MISUNDERSTANDING BY COUNSEL OF LIMITATIONS PERIOD FOR FILING PETITION IS NOT GROUNDS FOR EQUITABLE TOLLING

In Bohanon v. Grand Trunk Western Railroad Co. , ARB No. 16-048, ALJ No. 2014-FRS-3 (ARB Apr. 27, 2016), the ALJ issued a decision finding that the Respondent violated the employee protection provision of the FRSA. Shortly after the period for filing a petition for review expired, the Respondent filed a request for additional time to file a petition because counsel had misunderstood when the petition was due. The parties later filed a motion for approval of a settlement together with the Complainant’s withdrawal of an opposition to the request for additional time to file the petition for review. The ARB determined that the Respondent’s counsel’s misunderstanding of the limitations period for filing a petition for ARB review was “[a]t most …a garden variety claim of excusable neglect, which does not qualify as exceptional circumstances under Board and Sixth Circuit precedent [on equitable tolling].” The ARB rejected authority cited by the Respondent as it was decided under the more lenient “excusable neglect” standard. The ARB was not persuaded to toll the limitations period based on the parties’ joint motion. The ARB thus denied the motion to enlarge the time for filing a petition for review. One member of the Board dissented.

Approval of settlement agreement.

OFCCP INTENTIONAL DISCRIMINATION COMPLAINT; ARB AGREES IN REGARD TO FIRST HIRING SEASON THAT COMBINATION OF STATISTICAL EVIDENCE, AND EVIDENCE OF LACK OF DECISION MAKING STANDARDS, ANECDOTAL EVIDENCE OF ARBITRARY TREATMENT, AND DISPARATE USE OF DISPOSITION CODE WAS SUFFICIENT FOR OFCCP TO SHOW DISCRIMINATION

PLURALITY OF ARB REJECTS PORTION OF OFCCP’S CASE RELATED TO SECOND HIRING SEASON, ONE MEMBER FINDING IT INSUFFICIENT BECAUSE IT WAS SUPPORTED ONLY BY STATISTICAL EVIDENCE OF SMALL SHORTFALLS IN HIRING AFRICAN AMERICANS, ONE MEMBER FINDING THAT OFCCP SHOULD NOT HAVE BEEN ALLOWED TO EXPAND THE COMPLAINT TO INCLUDE THE SECOND HIRING SEASON, AND THE DISSENTING MEMBER FINDING THAT THE STATISTICAL EVIDENCE ALONE WAS SUFFICIENT IN THIS CASE

In OFCCP, USDOL v. Bank of America , ARB No. 13-099, ALJ No. 1997-OFC-16 (ARB Apr. 21, 2016), the ARB, in a plurality decision, affirmed the ALJ’s finding that in 1993 the Respondent intentionally discriminated against African-American job applicants for entry level positions. For different reasons, two members of the ARB reversed the ALJ’s finding that the Respondent was liable for intention discrimination in hiring in 2002-2005.

This matter began as a desk audit of the Respondent by OFCCP in 1994. During the 1993 hiring for two job groups, the Respondent had used two recruiters who did initial screening and testing. If the recruiters determined that the applicant was qualified and a good fit for the position, an interview was set with the hiring manager. When an applicant was disqualified or rejected for a position, the Respondent used disposition codes to record the reason. Two codes fell more harshly on the African-American applicants – a code relating to credit checks, and a code relating to incompatible hours. OFCCP’s expert found a standard deviation of 6.9. Extensive litigation caused an 8 year gap in the review of the Respondent’s hiring practices. By 2002-2005, the Respondent’ hiring practices had changed significantly. The job groups originally at issue were by then treated as a single group; there were now 58 recruiters; the Respondent had stopped using credit checks. OFCCP’s expert found a combined standard deviation of 4.0 for these years. OFCCP filed an Administrative Complaint which was based solely on a claim of intentional disparate treatment; the complaint did not charge disparate impact or that the Respondent violated its affirmative action obligations under the EO laws.

All three ARB judges agreed with the ALJ’s finding about the 1993 hiring. The ALJ relied on statistical analysis; the lack of standards for some decision-making processes; anecdotal evidence of arbitrary treatment; and troubling and disparate use of the disposition code. The lead opinion rejected the ALJ’s finding in regard to the 2002-2005 hiring because the ALJ had relied solely on the statistical disparity of that period as a whole. He found that the quality and quantity of evidence supporting the determination on the 1993 hiring was fundamentally different than the support for the determination on the 2002-2005 hiring. One ARB judge concurred in the resolution of the appeal but on the ground that 2002-2005 hiring had been adjudicated without affording the Respondent the full procedural protections of EO 11246 and 41 C.F.R. Part 60-1 (i.e., the newer review resulted from discovery information rather than a compliance review initiated under the regulations). The third ARB judge would have found that the 2002-2005 hiring was within the scope of OFCCP’s original Administrative Complaint which alleged ongoing violations. This judge criticized the majority for analyzing the two periods as separate claims of pattern or practice discrimination, and noted caselaw that if a plaintiff produces statistically significant evidence of discrimination, it is not necessary to also provide anecdotal evidence or prove gross disparity.

ARB’S STANDARD OF REVIEW IN OFCCP APPEALS IS DE NOVO; HOWEVER, ARB MAY ACCEPT ALJ’S FINDINGS OF FACT IF THEY SUPPORTED BY SUBSTANTIAL EVIDENCE

In OFCCP, USDOL v. Bank of America , ARB No. 13-099, ALJ No. 1997-OFC-16 (ARB Apr. 21, 2016), the ARB described its standard of review of ALJ’s Recommended Decision and Order in appeals arising under EO 11246, the Rehabilitation Act, and the Veterans’ Act. The ARB stated:

Because no standard of review exists in EO 11246, the implementing regulations, or Secretary’s delegation of authority, we rely on the Administrative Procedure Act. Under the Administrative Procedure Act, we have previously determined that our review is de novo and that the standard of proof in administrative adjudications “is the traditional preponderance-of-the-evidence standard.” Even under a de novo review, nothing prohibits us from accepting as our own the ALJ’s material fact findings that led up to the ALJ’s ultimate finding of fact (i.e., intentional discrimination) if those findings are supported by substantial evidence. In Bobreski v. J. Givoo Consultants ( Bobreski II ), we defined substantial evidence as evidence in the record that logically supports each of the material findings of fact and the record as a whole does not overwhelm the particular finding or expose the fact finding as genuinely unresolved.

USDOL/OALJ Reporter at 9-10 (footnotes omitted).

In the instant case, the ARB found that because of “the extensive hearing presentation before the ALJ and the ALJ’s firsthand observations, we accept the ALJ’s predicate fact findings supported by substantial evidence.” Id . at 10. The ARB stated that it would “review de novo the ALJ’s ultimate finding of discrimination and her legal conclusions.” Id .

BURDENS OF PROOF AND PRODUCTION IN EO 11246 INTENTIONAL DISCRIMINATION CASE; AFTER FULL HEARING, THE QUESTION FOR REVIEW ON APPEAL IS WHETHER OFCCP PROVED THE CASE, AND BURDEN OF PRODUCTION ANALYSIS IS UNNEEDED

In OFCCP, USDOL v. Bank of America , ARB No. 13-099, ALJ No. 1997-OFC-16 (ARB Apr. 21, 2016), the ARB noted that this particular case was grounded in OFCCP’s charge of intentional disparate treatment, and not disparate impact or a claim that the Defendant violated its affirmative action obligation under the EO laws. The ARB noted in this regard that, in addition to “EO 11246, its implementing regulations, and Department precedent, we also look to federal appellate court decisions addressing similar pattern or practice claims of intentional discrimination adjudicated under Title VII of the Civil Rights Act of 1964.” USDOL/OALJ Reporter at 11 (footnote omitted). The ARB then described the legal burdens of the parties for an intentional racial discrimination case:

   To prove that [the defendant] violated EO 11246 by engaging in a pattern or practice of intentional discrimination, the OFCCP must prove that unlawful discrimination was [the defendant]’s regular procedure or policy. … In a pattern or practice claim of intentional race discrimination, the OFCCP must show that there was a sufficient disparity and prove that race was a cause. Often in such cases, the complainant or plaintiff employees point to a substantial disparity in selection rates for a particular job as proof of an unlawful bias against members of a disadvantaged or protected class, an allegation that must be proven by a preponderance of the evidence. Palmer, 815 F.2d at 90. The burden of proving pattern or practice discrimination remains at all times with the plaintiff. Segar v. Smith , 738 F.2d 1249, 1268-69, 1287 (D.C. Cir. 1984); Craik v. Minn. State Univ. Bd. , 731 F.2d 465, 486-87 (8th Cir. 1984). Once the OFCCP proves a pattern or practice of discrimination against African-American applicants, each qualified African-American applicant benefits from a rebuttable presumption that he or she suffered from the same discrimination. Teamsters , 431 U.S. at 361-62. This rebuttable presumption shifts the burden of proof to the employer to demonstrate that it rejected the individual applicant for lawful reasons. Id . at 362.

USDOL/OALJ Reporter at 12 (footnotes omitted). The ARB then noted that after a full evidentiary hearing, the question on appeal is the ultimate question of whether OFCCP proved the case:

   In reviewing the ALJ’s ruling on the merits, we focus on the ultimate question of whether the OFCCP proved that [the Defendant] engaged in a pattern or practice of intentionally rejecting African-American applicants and that race was a factor. After a full evidentiary hearing, there is no need to engage in the burden of production analysis to determine whether the OFCCP presented a prima facie case or whether BOA presented legitimate, non-discriminatory reasons for its practices. This burden of production analysis applies to motions for summary judgment and motions for judgment as a matter of law. To decide the ultimate question of causation the ALJ must consider both the complainant’s and the respondent’s evidence. The complainant’s evidence may include a wide variety of circumstantial evidence, including motive, bias, work pressures from the employer, past and current relationships of the involved parties, animus, temporal proximity, pretext, shifting explanations, and material changes in employer practices, among other types of evidence.

Id . at 12-13 (footnotes omitted) (emphasis as in original). The ARB rejected OFCCP’s contention that the Defendant failed, as a matter of law, to present proper rebuttal for the ARB to consider on the question of intention discrimination – specifically, that once OFCCP presented its evidence, the Defendant had the burden of showing that OFCCP’s “statistical proof was unsound or to prove that the disparity occurred as a result of legitimate, non-discriminatory reasons.” Id . at 13. The ARB stated that the burden of proof always remains with OFCCP, and that the Defendant’s task had been to present admissible rebuttal evidence, just as in any civil tort litigation.

ROLE OF STATISTICAL EVIDENCE IN EMPLOYMENT DISCRIMINATION CASES; RULING OUT CHANCE CREATES AN INFERENCE

In OFCCP, USDOL v. Bank of America , ARB No. 13-099, ALJ No. 1997-OFC-16 (ARB Apr. 21, 2016), OFCCP had presented statistical evidence in support of its charge of intentional racial discrimination by the Defendant. The ARB noted:

   While some disagreement continues in the courts about the role of statistical evidence in employment discrimination cases, a few principles seem fairly established. For example, statistical evidence may be used to rule out chance as a likely reason for a significant racial disparity. Courts have consistently found significance in disparities exceeding the two standard deviation mark. See Hazelwood School Dist. v. U.S. , 433 U.S. 299, 308, n.14 (1977); Adams v. Ameritech , 231 F.3d 414, 424 (7th Cir. 2000). Ruling out chance does not automatically mean race discrimination was a motivating factor, but it makes such a reason a viable factor that could be inferred. The more severe the statistical disparity, the less additional evidence is needed to prove that the reason was race discrimination. Very extreme cases of statistical disparity may permit the trier of fact to conclude intentional race discrimination occurred without needing additional evidence.

USDOL/OALJ Reporter at 13-14 (footnotes omitted). The ARB stated that in the instant case: “Ultimately, the OFCCP must present enough evidence to persuade the ALJ that race discrimination was a motivating factor in [the Defendant]’s hiring decisions. What constitutes sufficient evidence must be evaluated on a case-by-case basis.” Id . at 14.

OFFCP INTENTIONAL DISCRIMINATION COMPLAINT; WHEN USE OF CLASS-WIDE METHOD OF CALCULATING BACK PAY DAMAGES IS APPROPRIATE

In OFCCP, USDOL v. Bank of America , ARB No. 13-099, ALJ No. 1997-OFC-16 (ARB Apr. 21, 2016), the ARB approved the ALJ’s decision to use a class-wide method of calculating back pay damages rather than a calculation based on a person-by-person, individual assessment. Using Title VII caselaw as a guide, the ARB found that “[i]f the case is complex, the class is large, or the illegal practices continued over an extended period of time, a class-wide approach to measure back pay may be necessary.” USDOL/OALJ Reporter at 20 (citations omitted). The ARB found that under the facts of this case, the ALJ’s decision to use a class-wide method was reasonable. There had been at least 1,147 potential victims of intentional racial discrimination in hiring; there was no way to determine which individuals would have been hired absent the discrimination; records were missing; the Respondent’s disqualifying codes were ambiguous and highly subjective; the liability hearing occurred more than a decade after the violations due to protracted litigation prompted by the Respondent’s attempts to end OFCCP’s compliance review. The ARB stated: “While formula or class-wide relief may generate a windfall for some employees who would have never been hired even if the jobs had been filled on a nondiscriminatory basis and may undercompensate the genuine victims of discrimination by forcing them to share the award with some undeserving recipients, it is the best that can be done under the circumstances.” Id . at 21 (citation omitted).

OFCCP HAS THE INITIAL BURDEN TO SHOW THE GROSS AMOUNT OF BACK PAY DUE; THE BURDEN THEN SHIFTS TO THE RESPONDENT TO ESTABLISH INTERIM EARNINGS OR LACK OF DILIGENCE TO MITIGATE DAMAGES

In OFCCP, USDOL v. Bank of America , ARB No. 13-099, ALJ No. 1997-OFC-16 (ARB Apr. 21, 2016), the Respondent contended on appeal that the ALJ erred in holding that the Respondent had the burden of proving interim earnings that offset back pay liability. The Respondent argued that “the OFCCP’s burden to prove damages includes the earnings or back pay that the victims of discrimination would be owed absent, or but for, the discrimination minus the actual interim earnings the victims were pa Id . Only then, [the Respondent] asserts, does the burden shift to the defendant to ‘further’ establish that the damages were less than what the OFCCP claimed because the amount of interim earnings the victims earned were actually more than the OFCCP claimed or due to the victims’ lack of diligence to mitigate damages by seeking or accepting other employment.” USDOL/OALJ Reporter at 25.

The ARB reviewed appellate court authority interpreting Title VII and NLRB cases, and found that they have ruled that “the plaintiff has the initial burden to show the ‘gross’ amount of back pay due and then the burden of producing sufficient evidence to establish the amount of interim earnings, or lack of diligence to mitigate damages by seeking or accepting other employment, shifts to the defendant.” Id . at 26. The ARB thus rejected the Respondent’s argument that it the OFCCP’s burden to prove damages also includes proving interim earnings.

PREJUDMENT INTEREST ON OFCCP BACK PAY DAMAGES IS BASED ON IRS RATE FOR UNDERPAYMENT OF TAXES AND NOT THE THREE YEAR TREASURY BILL RATE

In OFCCP, USDOL v. Bank of America , ARB No. 13-099, ALJ No. 1997-OFC-16 (ARB Apr. 21, 2016), the Respondent contended on appeal that the three month U.S. Treasury bill rate should have been used as the appropriate interest rate for determining the amount of prejudgment interest on the back pay award. The ARB summarily rejected this contention noting that the regulations provide for the use of the IRS rate for the underpayment of taxes, 41 C.F.R. § 60-1.26(a)(2), and that as an agency appellate authority, it does not have authority to review the validity of that regulation.

RESPONDENTS DID NOT DEMONSTRATE “UNUSUAL CIRCUMSTANCES” THAT WOULD RELIEVE THEM FROM DEBARMENT FOR VIOLATING THE SERVICE CONTRACT ACT WHERE RESPONDENT MISLED INVESTIGATORS, FALSIFIED RECORDS, HAD PREVIOUSLY BEEN INVESTIGATED AND RECEIVED WARNING, AND WAS AWARE THAT METHOD OF PAYMENT VIOLATED EMPLOYMENT CONTRACT

In Administrator, Wage and Hour Div., USDOL v. Garcia Forest Service, LLC , ARB No. 14-052, ALJ No. 2011-SCA-2 (ARB Apr. 8, 2016), an Administrative Law Judge issued a decision and order finding that the Respondents violated the minimum wage, fringe benefit, and record keeping requirements of the SCA and CWHSSA, and ordered debarment for both Garcia Forest and Mr. Garcia effective from the date of the ALJ’s order. The Respondents did not challenge these findings on appeal, but argued that they had demonstrated unusual circumstances that should relieve them from the sanction of debarment. Under a regulatory standard promulgated by the Administrator, in order to show that unusual circumstances exist that would relieve a party from debarment for violating the Act, that party must (1) establish that the SCA violations were not willful, deliberate, aggravated, or the result of culpable conduct; (2) meet the listed prerequisites of a good compliance history, cooperation in the investigation, repayment of the moneys due, and sufficient assurances of future compliance; and (3) address other factors such as previous violations of the SCA. 29 C.F.R. § 4.188(b)(1)(i-iii).

The Board found that the evidentiary record fully supported the ALJ’s conclusion that the Respondents failed to meet their evidentiary burden of demonstrating unusual circumstances that would relieve them from debarment. The ALJ found that Garcia’s foreman misled the investigators and that the investigators encountered clearly falsified hourly work records during the initial investigation. The ALJ also found that Garcia was aware that the employment contract provided for hourly pay and chose to switch the crew to a production-based pay system. The ALJ further noted that Garcia Forest had recently been investigated and warned of the need to comply with the Act’s requirements. Accordingly, the Board ordered debarment of Mr. Garcia and Garcia Forest for three years.

SUBSTANTIAL EVIDENCE SUPPORTS FINDING OF CONTRIBUTORY CAUSATION WHERE COMPLAINANT’S MULTIPLE PROTECTED ACTIVITIES WERE “INEXTRICABLY INTERTWINED”

In Rudolph v. National Railroad Passenger Corp. (AMTRAK) , ARB Nos. 14-053, -056, ALJ No. 2009-FRS-15 (ARB Apr. 5, 2016), a case arising under the Federal Railroad Safety Act, Lawrence J. Rudolph filed a complaint stating that Amtrak violated the Act when, among other claims, it determined that he was medically disqualified from working as a conductor.

Background

The Complainant began working as an assistant conductor with Amtrak in 1999. Prior to the events leading to this case, he took time off on several occasions for anxiety caused by work-related incidents. He eventually applied for reasonable accommodations for his anxiety, which Amtrak denied, stating that the Complainant had submitted inadequate information from his treating physician and that the accommodations were incompatible with his work duties. In July of 2008, the Complainant was forced to exceed his 12-hours-of-service limit after he was allegedly informed by management that no relief conductor was available. He reported this incident to his supervisor, Jack Krueger.

The following month, the Complainant advised Krueger that he would be taking leave due to the stress associated with the hours-of-service violation. He was subsequently diagnosed with acute anxiety and advised by a doctor not to return to work pending further evaluation. He alleges that, with regard to his medical leave, Krueger told him that it would not look good if he reported an on-duty injury every time he felt stressed. The Complainant subsequently filed a report with Krueger detailing the events of the hours-of-service incident and claiming that the resulting anxiety exacerbated an existing medical condition. However, Amtrak maintained that no one had ordered him to violate the hours-of-service rules. The company therefore issued disciplinary charges against him for a violation of said rules.

The Complainant applied for sick leave benefits and obtained a doctor’s statement indicating that he was temporarily totally disabled due to severe anxiety and that his mental limitation would interfere with his work. The doctor later revised his statement to indicate that the Complainant had stabilized and could return to his job as a conductor, and the Complainant requested to return to work. However, Amtrak refused to permit the Complainant to return, stating that he would need a psychiatric return-to-work evaluation in order to return to work without restrictions. After he underwent this evaluation, the physician conducting the evaluation submitted a report stating that the Complainant could not return to work until he resolved his issues surrounding “fears engendered by the workplace.” Amtrak therefore concluded that the Complainant was medically unfit for duty.

The Complainant filed a complaint with OSHA in January 2009 alleging that his disqualification and termination from employment with Amtrak constituted retaliation in violation of the FRSA. Following a formal hearing, the ALJ initially awarded only punitive damages and denied the Complainant back pay and reinstatement. The Complainant appealed to the Administrative Review Board (ARB), which affirmed in part, reversed in part, and remanded for further proceedings. On remand, the ALJ again found for the Complainant, ordering reinstatement and awarding $94,312.00 in back pay and $80,900.00 annually for 2011, 2012, and 2013 until reinstatement, minus the amount of disability benefits the Complainant received. Punitive damages remained at $5,000.

Opinion

On appeal, the ARB found that substantial evidence supported a finding of contributory causation where the Complainant’s multiple protected activities were “inextricably intertwined” in a chain of events that began with his notification of a violation of his hours of service and his accurate reporting of that violation. This chain of events resulted in Amtrak’s adverse actions against the Complainant, which culminated in his notice of medical disqualification based on his generalized anxiety and panic disorder. The Board agreed with the ALJ that Amtrak failed to establish that it would have initiated the disciplinary charge absent these protected activities. The Board agreed with the ALJ’s reasoning that absent the Complainant’s accurate log entry of 48 minutes of service beyond the 12-hour limit and his assertion that he had been forced to violate the limit, Amtrack would have had no reason to initiate its investigation and its disciplinary charge alleging an hours-of-service violation.

Judge Corchado concurred in part and dissented in part. He disagreed that substantial evidence supported the ALJ’s finding that protected activity was a contributing factor in Amtrak finding the Complainant medically unfit to return to work. He further opined that the “chain of events” theory of contributing factor in this case goes beyond the bounds of the FRSA whistleblower protections.

BACK PAY AWARD; COMPLAINANT WHO PROPERLY STOPPED WORKING WHEN HE BEGAN RECEIVING DISABILITY BENEFITS DID NOT FAIL TO MITIGATE DAMAGES AND IT WAS ERROR FOR THE ALJ TO DEDUCT DISABILITY PAYMENTS FROM BACK PAY AWARD

In Rudolph v. National Railroad Passenger Corp. (AMTRAK) , ARB Nos. 14-053, -056, ALJ No. 2009-FRS-15 (ARB Apr. 5, 2016), the ARB affirmed the ALJ’s decision and order finding that the Respondent violated the employee protection provision of the Federal Railroad Safety Act, when it determined that the Complainant was medically disqualified from working as a conductor. On appeal, the Complainant challenged the ALJ’s deduction of $7,000 from the back pay award as an offset during the years that the Complainant was receiving disability benefits. The ARB found that the deduction was error. The Board noted that the Complainant properly stopped working when he began receiving disability benefits and he had no other earnings from that point forward. The ARB noted:

    While a non-working employee has the duty to mitigate his damages by seeking suitable employment, it is well established that the employer has the burden of establishing that the back-pay award should be reduced because the employee did not exercise diligence in seeking and obtaining other employment. Further, an employee cannot legally “double dip” by earning wages while receiving disability retirement or benefits.3

USDOL/OALJ Reporter at 12-13 (footnotes omitted). The ARB found that the record contained no evidence that Amtrak even attempted to establish that comparable jobs were available and that Complainant did not seek them. Thus, the annual calculations until reinstatement should not include any $7,000 offset.

$25,000 IN COMPENSATORY DAMAGES FOUND APPROPRIATE FOR EMOTIONAL DISTRESS AWARD

In Rudolph v. National Railroad Passenger Corp. (AMTRAK) , ARB Nos. 14-053, -056, ALJ No. 2009-FRS-15 (ARB Apr. 5, 2016), the ARB affirmed the ALJ’s decision and order finding that the Respondent violated the employee protection provision of the Federal Railroad Safety Act, when it determined that the Complainant was medically disqualified from working as a conductor. On appeal, the Complainant argued that the ALJ should have awarded a minimum of $250,000 in compensatory damages. The ARB agreed with the ALJ, however, that the Complainant’s credible testimony at the hearing concerning his emotional distress, and especially his statements about his divorce, was sufficient to warrant a compensatory damages award of $25,000. The ARB found, however, that nothing in the record supported the Complainant’s assertion that he was entitled to more than this.

$5,000 IN PUNITIVE DAMAGES APPROPRIATE SANCTION FOR RESPONDENT’S THREAT TO INITIATE DISCIPLINE IF COMPLAINANT CONTINUED TO ENGAGE IN PROTECTED ACTIVITY

In Rudolph v. National Railroad Passenger Corp. (AMTRAK) , ARB Nos. 14-053, -056, ALJ No. 2009-FRS-15 (ARB Apr. 5, 2016), the ARB affirmed the ALJ’s decision and order finding that the Respondent violated the employee protection provision of the Federal Railroad Safety Act, when it determined that the Complainant was medically disqualified from working as a conductor. The ALJ awarded $5,000.00 in punitive damages for the Complainant’s supervisor’s threat to initiate discipline if the Complainant continued to insist he was forced to work over his hours-of-service limit. On appeal, the Complainant argued that he was entitled to the maximum punitive damage award of $250,000. The ARB found that substantial evidence supported the ALJ’s award of $5,000.00 in punitive damages, and the ALJ’s reasoning that under the facts of the case, Amtrak’s disciplinary charge and subsequent actions in referring the Complainant for a psychiatric evaluation and relying on the report from this evaluation did not constitute reckless indifference or callous disregard of the FRSA’s protection provisions. The ARB found that the Complainant presented no persuasive evidence for increasing the award, and the damages were within the amount allowable by law. Six “aggravating factors” described in the Complainant’s brief were merely allegations which the record evidence failed to prove.

ALJ PROPERLY CONCLUDED THAT EMPLOYER WAS NOT ENTITLED TO § 20109(c)(2) SAFE HARBOR EXEMPTION WHERE IT FAILED TO OFFER INTO EVIDENCE ANY MEDICAL OR FITNESS FOR DUTY STANDARDS

In Rudolph v. National Railroad Passenger Corp. (AMTRAK) , ARB Nos. 14-053, -056, ALJ No. 2009-FRS-15 (ARB Apr. 5, 2016), the ARB affirmed the ALJ’s decision and order on remand finding that the Respondent violated the employee protection provision of the Federal Railroad Safety Act, when it determined that the Complainant was medically disqualified from working as a conductor. On appeal, the Respondent argued that the ALJ improperly interpreted its fitness-for-duty defense under section 20109(c)(2) as a “special affirmative defense” and applied the wrong burden of proof. The ARB noted that after the ALJ’s decision on remand in this case, it had decided the appeal in Ledure v. BNSF Ry. Co. , ARB No. 13-044, ALJ No. 2012-FRS-20 (ARB June 2, 2015):

In Ledure v. BNSF Ry. Co. , … we detailed the legislative history of section 20109(c)(2) and held that subsection (c)(2) “carves out an exception” that permits an employer to refuse an employee’s return-to-work request if the employee fails to meet FRA medical standards or the employer’s standards for fitness for duty. The ARB added that subsection (c)(2) “literally exempts fitness-for-duty situations from coverage” by creating a “safe harbor,” defined as “the provision in a law or agreement that will protect from any liability or penalty as long as set conditions have been met.”49F50 The ARB concluded that the employer bears the burden of proving both elements of the subsection—establishing the relevant fitness-for-duty standards and demonstrating how the employee failed to meet them.

USDOL/OALJ Reporter at 17 (footnotes omitted). The Board found that while the ALJ erred in terming the Complainant’s request to return to work a protected activity, the error was harmless because Amtrak failed to offer into evidence either the FRA or Amtrak’s medical standards for fitness for duty. The ARB ruled that the ALJ therefore properly concluded that Amtrak was not entitled to the safe-harbor exemption that permits an employer to refuse an employee’s return-to-work request if the employee fails to meet FRA medical standards or the employer’s standards for fitness for duty.

ALJ WAS WITHIN HIS DISCRETION IN NOT ISSUING BRIEFING ORDER ON REMAND WHERE RESPONDENT HAD OVER EIGHT MONTHS TO REQUEST OPPORTUNITY TO SUBMIT ADDITIONAL EVIDENCE OR ARGUMENT

In Rudolph v. National Railroad Passenger Corp. (AMTRAK) , ARB Nos. 14-053, -056, ALJ No. 2009-FRS-15 (ARB Apr. 5, 2016), the ARB affirmed the ALJ’s decision and order on remand finding that the Respondent violated the employee protection provision of the Federal Railroad Safety Act, when it determined that the Complainant was medically disqualified from working as a conductor. On appeal, the Respondent argued that the ALJ denied it an opportunity to be heard on remand because the ALJ failed to issue a briefing order, thus depriving the Respondent of its right to submit additional evidence and argument to supplement the record. The ARB was not persuaded:

   The ALJ regulation governing re-opening of the record [at 29 C.F.R. § 18.54(c)] states: “When there is a hearing, the record shall be closed at the conclusion of the hearing unless the administrative law judge directs otherwise .” This section affords the ALJ discretion to reopen the record on remand. For eight months Amtrak never filed a motion to submit additional evidence on its fitness-for-duty standards or to offer argument on the issue of contributory causation. The ALJ obviously found no need to issue a scheduling order. His decision was well within his discretion.

USDOL/OALJ Reporter at 18 (footnote omitted) (emphasis as in original).

[Editor’s note: The ALJ procedural regulation at 29 C.F.R. § 18.54(c) was in effect at the time of the ALJ hearing in Rudolph . The ALJ procedural regulations have since been revised, and the current rule on reopening a record is found at 29 C.F.R. § 18.90(b) (2015).]

PROTECTED ACTIVITY; FOLLOWING A PHYSICIAN’S TREATMENT PLAN IS NOT PROTECTED ACTIVITY UNDER § 20109(a) AND (b)

In Rudolph v. National Railroad Passenger Corp. (AMTRAK) , ARB Nos. 14-053, -056, ALJ No. 2009-FRS-15 (ARB Apr. 5, 2016), the ARB affirmed the ALJ’s decision and order on remand finding that the Respondent violated the employee protection provision of the Federal Railroad Safety Act, when it determined that the Complainant was medically disqualified from working as a conductor. The ALJ found that the Complainant engaged in protected activity when he requested a return to work and that his request was a contributing factor in the Respondent’s medical director’s actions referring the Complainant for a psychiatric examination and medically disqualifying him. The ARB held that the ALJ erred in terming the Complainant’s request to return to work a protected activity. The ARB stated in a footnote:

   In requesting a return to work, Rudolph was following Dr. Sedlacek’s treatment plan that included his opinion that Rudolph had recovered from his generalized anxiety disorder well enough mentally to work as a conductor. But following a physician’s treatment plan is not one of the enumerated protected activities under § 20109(a) and (b). Subsection (c)(2) also defines specific forms of discipline but does not include a return-to-work request. However, Amtrak’s refusal to allow Rudolph to return to work, despite the lack of fitness-for-duty standards, effectively terminated his employment.

USDOL/OALJ Reporter at 17-18. The ALJ’s error, however, was harmless in the context of the fitness-for-duty issue to be decided on remand because the Respondent failed to put on evidence of an FRA or its own medical standards for fitness for duty.