USDOL/OALJ Reporter: ARB Decision Caselist - April 2018

[Nuclear and Environmental Digest VII C 1]
SUMMARY DECISION; GENERAL STANDARD; ALJ COMMITS REVERSIBLE ERROR BY WEIGHING EVIDENCE AT SUMMARY DECISION STAGE; NON-MOVING PARTY MERELY NEEDS TO ESTABLISH EXISTENCE OF GENUINE DISPUTE AS TO A MATERIAL FACT TO SURVIVE SUMMARY DECISION

In Kao v. Areva Inc. , ARB No. 16-090, ALJ No. 2014-ERA-4 (ARB Apr. 30, 2018), the ALJ had granted summary decision on the ground that the Respondent proved by clear and convincing evidence that the Respondent would have terminated the Complainant’s employment in the absence of his protected activity because the Complainant engaged in insubordinate conduct. The ARB noted that “because a respondent’s affirmative defense burden is high, and because ‘it is a fact intensive determination, involving questions of intent and motivation’ for taking adverse action, resolving this issue on summary decision is challenging.” USDOL/OALJ Reporter at 5, quoting Henderson v. Wheeling & Lake Erie Ry. , ARB No. 11-013, ALJ No. 2010-FRS-012, slip op. at 13 (ARB Oct. 26, 2012).

The ARB summarized the law concerning summary decision:

    Pursuant to 29 C.F.R. § 18.72(a), upon a motion, an ALJ “shall grant summary decision if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to decision as a matter of law.” In deciding on such a motion, the evidence is viewed in the light most favorable to the nonmoving party. When deciding whether to grant a motion for summary decision, the evidence is not weighed to determine the truth of the matters asserted. We have held that “a genuine issue exists if a fair-minded fact-finder [] could rule for the nonmoving party after hearing all the evidence, recognizing that in hearings, testimony is tested by cross-examination and amplified by exhibits and presumably more context.” Denying summary decision because there is a genuine dispute as to a material fact simply means that an evidentiary hearing is required to resolve those issues; it is not an assessment on the merits of any particular claim or defense. Again, the analysis performed is the threshold matter “of whether there is the need for a trial—whether . . . there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”

USDOL/OALJ Reporter at 4-5 (footnotes omitted).

In the instant case, in determining to grant summary decision the ALJ had weighed evidence and made findings of fact. This was reversible error because the Complainant had submitted rebuttal evidence in response to the Respondent’s motion for summary decision demonstrating, at a minimum, that there was a genuine issue on whether the termination would have happened absent the protected activity. The ARB reviewed the evidence, and found that the Complaint had alleged and provided support for the proposition that he was fired because of his protected activities and that the alleged insubordination arose solely in the context of his protected activities. Viewing the evidence in the light most favorable to the nonmoving party, a fact finder could find that the termination of [the Complainant’s] employment would not have occurred absent his protected activities.  Thus, any fact findings to the contrary must be made after a hearing to settle this genuine dispute about a material fact. Because [the Complainant] could prevail on the evidence submitted, he also prevails now, on summary decision.”  USDOL/OALJ Reporter at 8 (footnote omitted) (emphasis as in origina).

SUMMARY DECISION; EVIDENCE THAT INSUBORDINATION AND PROTECTED ACTIVITY WERE INEXTRICABLY INTERTWINED IS SUFFICIENT TO SURVIVE SUMMARY DECISION ON EMPLOYER’S AFFIRMATIVE DEFENSE

In Kao v. Areva Inc. , ARB No. 16-090, ALJ No. 2014-ERA-4 (ARB Apr. 30, 2018), the ALJ had granted summary decision on the ground that the Respondent proved by clear and convincing evidence that the Respondent  would have terminated the Complainant’s employment in the absence of his protected activity because the Complainant engaged in insubordinate conduct.  The ARB found that the ALJ committed reversible error because he had weighed the evidence and made findings of fact, which is inappropriate at the summary decision stage.  In making this ruling, the ARB looked at some of the evidence the Complainant had presented to rebut the Respondent’s summary decision motion.  One of the factors that the ARB  found the ALJ “gave short shrift to [was the Complainant’s] evidence that his alleged insubordination was in essence protected activity and that, at a minimum, the two were inextricably intertwined.” USDOL/OALJ Reporter at 7 (footnote omitted). In a footnote, the ARB stated:

    When an employer’s stated reasons for adverse action flow entirely or almost entirely from the protected activity, a fact finder may find that retaliation was the actual reason for adverse action. Abdur-Rahman v. DeKalb Cty. , ARB Nos. 08-003, 10-074; ALJ Nos. 2006-WPC-002, -003; slip op. at 5 and n.21 (ARB Feb. 16, 2011) (alleged insubordination included the protected safety concerns); see also Dodd v. Polysar Latex , No. 1988-SWD-004, slip op. at 8 (Sec’y Sept. 22, 1994) (supervisor claimed he recommended termination after considering complainant’s deteriorating relationships, attitude, and performance, but his testimony as a whole showed that he recommended termination solely because of complainant’s conflict with another manager over complainant’s protected activities); Passaic Valley Sewerage Comm’rs v. U.S.D.O.L. , 992 F.2d 474, 481 (3d Cir. 1993).

Id. at 7, n.32.

[Nuclear & Environmental Digest XI D 1]
EMPLOYER’S AFFIRMATIVE DEFENSE; EMPLOYER IS NOT REQUIRED TO PROVE THAT PROTECTED ACTIVITY WAS NOT A CONTRIBUTING FACTOR, BUT EMPLOYER NONETHELESS MUST ESTABLISH WHAT “IT WOULD HAVE DONE” AND NOT MERELY WHAT “IT COULD HAVE DONE” IN THE ABSENCE OF PROTECTED ACTIVITY

In Kao v. Areva Inc. , ARB No. 16-090, ALJ No. 2014-ERA-4 (ARB Apr. 30, 2018), the ALJ had granted summary decision on the ground that the Respondent proved by clear and convincing evidence that the Respondent  would have terminated the Complainant’s employment in the absence of his protected activity because the Complainant engaged in insubordinate conduct.  The ARB found that the ALJ committed reversible error because he had weighed the evidence and made findings of fact, which is inappropriate at the summary decision stage.  The ARB also found that the ALJ appeared to have applied an incorrect burden on the Respondent for its affirmative defense.  The ALJ stated that “Respondent’s burden on the affirmative defense as to establish ‘by clear and convincing evidence that the Complainant’s [protected activity] did not contribute to his termination of employment.’”   USDOL/OALJ Reporter at 8 (footnote omitted). The ARB clarified: 

At the affirmative defense stage, an employer is not required to prove that there was no contributing factor, but by the same token, it is not enough for an employer to show merely that the employee’s conduct violated company policy or constituted a legitimate business reason justifying the adverse personnel action. The express language of the statute requires that the “clear and convincing” evidence prove what the employer “would have done,” not what it “could have done,” in the absence of protected activity. Instead, the employer is “required to demonstrate through factors extrinsic to [complainant’s] protected activity that the discipline to which [complainant] was subjected was applied consistently, within clearly-established company policy, and in a non-disparate manner consistent with discipline taken against employees who committed the same or similar violations.” On remand, the ALJ should make clear that the affirmative defense does not require disproving contributing factor but neither is it met merely by demonstrating a legitimate business reason; the employer must prove that it would have taken the same action absent protected activity, despite there being contributing factor causation.

Id. (footnotes omitted).

The ARB dismissed the administrative case because the Complainant filed an original action pursuant to 49 U.S.C. § 31105(c), with the United States District Court for the District of Minnesota (No. 18-cv-00783) and the district court action was filed more than 210 days after the administrative complaint had been filed with OSHA.

PETITION FOR ARB REVIEW OF DBA WAGE DETERMINATION DENIED WHERE PETITIONER FAILED TO ESTABLISH THAT IT HAD FIRST SOUGHT AND BEEN DENIED RECONSIDERAITON UNDER 29 C.F.R. § 1.8

In D.F. Osborne Construction, Inc. , ARB No. 17-042 (ARB Apr. 13, 2018), the Petitioner filed an appeal of a second assigned wage rate on a project for the Topeka Housing Authority. The ARB noted that its jurisdiction for a review of the Wage and Hour Division Administrator’s wage determination or an application made under 29 C.F.R. Part 1 arises only after reconsideration has been sought from the Administrator pursuant to 29 C.F.R. § 1.8 and denied. In the instant case, the petition for review did not show denial of a motion for reconsideration by the Administrator, and the ARB thus issued an order to show cause why the petition for review should not be denied. The Petitioner did not respond, and the ARB dismissed the appeal.