Administrative Review Board Decisions
The following case summaries were created by the Administrative Review Board staff.
Hope v. Performance Food Service Corp., ARB No. 2024-0031, ALJ No. 2023-STA-00080 (ARB Apr. 30, 2024) (Order of Administrative Closure)
ADMINISTRATIVE CLOSURE; ARB ADMINISTRATIVELY CLOSED CASE WHERE COMPLAINANT FAILED TO FILE PETITION FOR REVIEW
In Hope v. Performance Food Service Corp., ARB No. 2024-0031, ALJ No. 2023-STA-00080 (ARB Apr. 30, 2024), an ALJ dismissed the action because the parties failed to comply with the ALJ's pre-hearing directives, and both failed to appear for a prehearing conference.
Complainant subsequently filed a document that appeared to be a copy of the publicly available D. & O. with the ARB. The document did not identify any objections to the ALJ's conclusions or orders as required to constitute a petition for review under STAA's implementing regulations. The ARB issued an Order directing Complainant to file a petition for review on or before April 5, 2024.
Complainant did not file a petition for review as ordered. Given Complainant's failure to respond to, and comply with, the ARB's Order, the ARB administratively closed the matter.
Andreski v. United States Marshals Service, ARB No. 2024-0015, ALJ No. 2023-CAR-00002 (ARB Apr. 22, 2024) (Decision and Order Dismissing Petition for Review)
ORDER OF DISMISSAL; COMPLAINANT FAILED TO FILE AN OPENING BRIEF AND RESPOND TO ORDER TO SHOW CAUSE
In Andreski v. United States Marshals Service, ARB No. 2024-0015, ALJ No. 2023-CAR-00002 (ARB Apr. 22, 2024), the ARB dismissed the Complainant's Petition for Review for failure to file an opening brief as ordered by the ARB.
On January 16, 2024, Complainant filed a Petition for Review of the ALJ's Order Dismissing Complaint. The ARB issued briefing orders, and Complainant did not file an opening brief. Therefore, on March 25, 2024, the ARB issued an Order to Show Cause ordering Complainant to explain why the Board should not dismiss the appeal for failure to comply with the Board's orders and briefing requirements. Complainant did not respond or file an opening brief. Accordingly, the ARB dismissed the appeal.
Braun v. United Airlines, Inc., ARB No. 2024-0001, ALJ No. 2021-AIR-00014 (ARB Apr. 16, 2024) (Decision and Order Approving Settlement, Denying Motion to Hold Settlement Exempt from FOIA Disclosure, and Dismissing Case with Prejudice)
VOLUNTARY DISMISSAL; APPROVAL OF SETTLEMENT
In Braun v. United Airlines, Inc., ARB No. 2024-0001, ALJ No. 2021-AIR-00014 (ARB Apr. 16, 2024), the parties filed a Joint Motion for an Order Approving Settlement, Dismissing Action with Prejudice, and Holding the Settlement Exempted from FOIA Disclosure, stating that the parties had settled Complainant's AIR21 claim and agreed to dismiss the appeal with prejudice pursuant to the terms of a settlement agreement. The ARB approved the parties' settlement agreement as fair, adequate, and reasonable, and not in contravention of the public interest. Accordingly, the ARB dismissed the appeal. However, the ARB denied the parties' request to withhold the settlement agreement from disclosure under FOIA. The ARB stated that the parties' submissions were part of the record and subject to FOIA and that the ARB lacked the authority to exempt documents from FOIA as part of the settlement approval process.
Dick v. USAA, ARB No. 2022-0063, ALJ No. 2018-STA-00054 (ARB Apr. 16, 2024) (Decision and Order)
PROTECTED ACTIVITY UNDER THE STAA; COMPLAINANT'S REASONABLE BELIEF; CONTRIBUTING FACTOR; RESPONDENT'S AFFIRMATIVE DEFENSE; WITNESS CREDIBILITY
In Dick v. USAA, ARB No. 2022-0063, ALJ No. 2018-STA-00054 (ARB Apr. 16, 2024), the ARB affirmed the ALJ's Decision and Order. CDS is a personal staffing firm that provides intermittent, on-demand commercial motor vehicle drivers to client companies on an as-needed basis. CDS hired Complainant as a commercial motor vehicle driver in February 2017.
USAA contracted with CDS to provide drivers to transport a specialty commercial motor vehicle (disaster CMV) to natural disaster sites. Upon accepting a USAA driving assignment, a standby driver was required to commence the job within twenty-four hours, pick up the disaster CMV at a designated location, and travel to a disaster site. Standby drivers were also obligated to timely notify USAA representatives of any delays in arriving to the designated departure location.
On December 5, 2017, USAA requested a driver to transport the disaster CMV from San Antonio, Texas to Southern California. CDS offered Complainant the assignment, and Complainant accepted. An operations specialist for CDS informed Complainant of the time-sensitive nature of the job, specifying that Complainant needed to arrive in San Antonio within twenty-four hours. When USAA contacted Complainant to schedule his travel plans, however, Complainant informed USAA that he could only make the flight arriving at 9:58 p.m. on December 6, outside of the required twenty-four-hour deployment schedule.
To prevent further delay, a contemporary fleet and logistics coordinator for USAA drove the disaster CMV from San Antonio to El Paso. USAA also reminded Complainant to complete his required hours-of-service form before arriving in El Paso. USAA requires drivers to have the hours-of-service form completed before arriving to pick up a vehicle. Complainant missed his scheduled flight without notifying USAA. Complainant eventually arrived in El Paso around 1:00 a.m. on December 7, nearly thirty-six hours after he accepted the job, and did not have his required hours-of-service form completed.
Upon arrival, USAA's contemporary fleet and logistics coordinator explained the Electronic Logging Device (ELD) application to Complainant. USAA uses an ELD to track and record vehicle location, travel routes, and time operating the disaster CMV. Complainant expressed opposition to using the ELD several times and insisted he would record his own driving hours, but he did not say that he thought the system presented a safety issue. USAA's contemporary fleet and logistics coordinator reiterated that the ELD was a redundant, but different system than the driver's hours-of-service log used by Complainant (and other drivers), and that the ELD was used to track the disaster CMV's hours of operation and location.
Complainant departed El Paso at approximately 8:25 a.m. on December 7—nineteen hours after the required twenty-four-hour dispatch time. At approximately 8:37 p.m., Complainant called USAA to report heavy traffic and advise that he needed to stop in Blythe, California, rather than Palm Desert, California for his required driving break. Complainant had not advised USAA earlier of the traffic delays, and his late notice forced USAA to cancel a hotel reservation and incur a late cancellation charge.
The USAA assignment required Complainant to depart Blythe at 6:00 a.m. on December 8, but he did not leave until approximately 7:14 a.m. Around 11:05 a.m., Complainant stopped at a truck wash. Complainant spent more than three hours at the truck wash before leaving at 2:23 p.m.
After leaving the truck wash, Complainant drove for approximately twenty-six minutes before stopping at a truck stop in Ontario, California to take a mandatory hours-of-service driving break. Complainant did not inform USAA of his decision to stop at the truck wash, which he split with his upcoming required hours-of-service driving break.
Upon departing from the truck stop at 5:14 p.m., Complainant took a route contrary to the directions USAA provided him. USAA expected Complainant to follow the route mapped for him.
On December 8, USAA called CDS and requested CDS remove Complainant from service as a driver for the USAA program due to his multiple service failures. In a follow-up e-mail, USAA provided CDS with a list of service failures.
After being removed from the assignment, Complainant called a compliance specialist for CDS. During the call, Complainant told the compliance specialist he felt it was unsafe for him to answer USAA's calls or respond to text messages while he was driving, but he did not report any other safety concerns.
On December 9, Complainant sent CDS a one-page e-mail recognizing "timeliness concerns regarding [his] performance," explaining the stops he made while driving the disaster CMV, and rebutting USAA's opinion that he was wasting time. Notably, the e-mail contained no reference to safety concerns or efforts by USAA representatives to have him violate commercial motor vehicle safety regulations.
On December 11, Complainant sent a second e-mail to CDS stating, "for some reason USAA got mad at me about something." Complainant acknowledged that he misunderstood USAA's twenty-four-hour standby policy and made comments about receiving calls and text messages from USAA staff while driving. But the e-mail again contained no reference to safety concerns or efforts by USAA representatives to have him violate commercial motor vehicle safety regulations.
On the afternoon of December 14, CDS decided to terminate Complainant's employment based upon Complainant's failure to perform his job satisfactorily, his unprofessional and disrespectful interactions with CDS employees and managers, and his disregard for customer service.
However, prior to the termination decision, CDS gave Complainant a driving assignment for Thunder Ridge on December 14. During this assignment, Complainant observed a truck with a cracked mirror and an inoperable headlight. Complainant called a compliance specialist at 9:54 p.m., informed her of his observations, and requested contact information for senior management at Thunder Ridge.
The next day, the compliance specialist e-mailed CDS' owner and chief executive officer, CDS' operations manager, and CDS' owner's business partner, summarizing her discussion with Complainant. The e-mail noted Complainant's displeasure with his removal from the USAA assignment, that Complainant had safety concerns with Thunder Ridge's trucks, Complainant's request for Thunder Ridge's management's contact information, and potential lawsuits Complainant stated he may file against USAA and Thunder Ridge.
On December 16, 2017, a CDS contracted human resources manager called Complainant to notify him that Respondent was terminating his employment. Complainant's last day of employment with CDS was December 19. Complainant submitted written safety concerns regarding the Thunder Ridge assignment to CDS on December 20.
On December 18, 2017, Complainant filed a complaint against USAA and CDS with OSHA alleging they violated the STAA. On April 17, 2018, OSHA concluded no reasonable cause existed to believe Respondents violated the STAA and dismissed the complaint. On April 26, 2018, Complainant objected to OSHA's findings and requested a hearing before the OALJ.
On July 27, 2018, USAA filed a Motion for Summary Decision. On October 3, 2018, the ALJ issued a Ruling on Respondent USAA's Motion for Summary Decision dismissing Complainant's claims against USAA because the ALJ found USAA did not employ Complainant. Complainant filed an interlocutory appeal of the order with the ARB. On July 23, 2020, the ARB dismissed the appeal and returned the case to the ALJ to conduct a formal hearing and render a decision in the case against CDS on its merits, including considering whether any violation of the statute occurred when Complainant completed the USAA assignment while CDS employed him.
On September 2, 2022, the ALJ issued a D. & O. denying Complainant's complaint against CDS, finding Complainant did not engage in any protected activity while working for CDS on the USAA job assignment and that any protected activity on the Thunder Ridge assignment played no part in his termination from CDS. On September 9, 2022, Complainant filed a petition for review of the ALJ's D. & O. with the ARB.
PROTECTED ACTIVITY; COMPLAINANT DID NOT MEET HIS BURDEN; ALJ'S FINDING THAT COMPLAINANT'S BELIEF WAS NOT OBJECTIBELY REASONABLE IS SUPPORTED BY SUBSTANTIAL EVIDENCE
In affirming the ALJ, the ARB determined that Complainant did not engage in protected activity during the USAA assignment. Before the ALJ, Complainant asserted that he engaged in protected activity when he: (1) expressed concerns regarding the disaster CMV's ELD system; (2) was ordered to work during a DOT break; and (3) refused to answer phone calls or text messages. However, before the ARB, Complainant's appeal on protected activity concerned only the ELD system.
The ARB held that substantial evidence in the record supported the ALJ's finding that even if Complainant held a subjective belief that the use of the ELD system violated a safety rule, that belief was not objectively reasonable. First, the ARB noted that the simple use of a system to track a truck's location does not intrinsically suggest a violation of any safety regulation, standard, or order. Rather the record reflected that other drivers routinely used it (or similar systems) without any concern that doing so would misrepresent past driving hours, cause safety concerns, or violate regulations.
Second, Complainant did not submit any evidence or attempt to develop any argument beyond his conclusory allegation suggesting that the mere use of an ELD system violates a safety rule or regulation. Given the complete lack of proof, the ARB affirmed the ALJ's determination that Complainant did not engage in protected activity while performing the USAA assignment for CDS.
CONTRIBUTING FACTOR; ALJ'S FINDING THAT ANY PROTECTED ACTIVITY DID NOT CONTRIBUTE TO ADVERSE ACTION IS SUPPORTED BY SUBSTANTIAL EVIDENCE; ARB DEFERS TO ALJ'S CREDIBILITY DETERMINATIONS UNLESS INHERENTLY INCREDIBLE OR PATENTLY UNREASONABLE
The ARB found that substantial evidence in the record supported the ALJ's finding that Complainant's protected activity did not contribute to Respondent's decision to terminate his employment. The ARB noted that the ALJ properly considered and determined that CDS' owner and CEO: (1) had no knowledge of any safety concerns raised or reports made by Complainant prior to deciding to terminate his employment; and (2) based the decision to terminate Complainant on non-retaliatory reasons.
In support, the ARB focused on CDS' owner's reliable testimony that: (1) he consulted with senior management and his business partner in the afternoon on December 14, while Complainant reported his initial concerns to a CDS compliance specialist at 9:54 p.m. later that day; and (2) Complainant's removal from the USAA assignment and employment termination resulted from service failures, performance issues, and unacceptable personal interaction with CDS clients and employees. Additionally, the ARB focused on other contemporaneous record evidence that corroborated the owner's account, including, for example: USAA's e-mail requesting CDS to replace Complainant as a driver; e-mails amongst CDS staff regarding Complainant's inappropriate behavior; and witness testimony.
While making this determination, the ARB also acknowledged the ALJ's role as factfinder and that it gives great significance to an ALJ's credibility determinations unless their witness evaluations are "inherently incredible or patently unreasonable." The ALJ found CDS' owner's testimony "reliable" and "well-supported" and noted that it contained "no internal inconsistencies." Thus, the ARB affirmed the ALJ's contributing factor analysis.
AFFIRMATIVE DEFENSE; EMPLOYER DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE IT WOULD HAVE TERMINATED COMPLAINANT'S EMPLOYMENT IN THE ABSENCE OF PROTECTED ACTIVITY
The ARB found that substantial evidence in the record supported the ALJ's finding that CDS demonstrated by clear and convincing evidence it would have terminated Complainant's employment in the absence of his protected activity. On appeal, Complainant argued that the ALJ erred in finding that CDS met its burden but did not point to any error of law the ALJ committed. Instead, Complainant asked the ARB to reweigh facts in a different light.
The ARB declined to reweigh the facts and, instead, noted the record contained ample evidence to support the ALJ's finding, including the fact that Complainant failed to provide adequate, time-sensitive service to USAA. For example, according to USAA's email requesting Complainant's removal from the assignment and credible witness testimony, Complainant: (1) failed to commence the driving job within the required 24-hour period; (2) committed several driving failures that delayed delivery of the disaster CMV to California; (3) failed to communicate with USAA and inform it of delays, which caused additional costs for USAA; and (4) interacted with USAA personnel in an argumentative manner. Complainant even acknowledged USAA's dissatisfaction with his job performance in an e-mail to CDS.
In addition to the significant problems with the USAA assignment that occurred while in CDS's employment, the record also contained distinct evidence that CDS terminated Complainant's employment due to additional professionalism and customer service concerns. The ALJ reasonably credited CDS's owner's persuasive testimony that he considered Complainant's interactions and conduct toward USAA employees and CDS employees to be combative, unprofessional, and unacceptable, and the timeline of Complainant's termination corroborates that testimony.
Accordingly, the ARB affirmed the ALJ's affirmative defense finding.
Schooler v. Ford Motor Co., ARB No. 2024-0014, ALJ No. 2023-SOX-00015 (ARB Apr. 5, 2024) (Notice of Order Granting Complainant's Request to Dismiss Petition for Review)
NOTICE OF ORDER GRANTING COMPLAINANT'S REQUEST TO DISMISS PETITION FOR REVIEW
In Schooler v. Ford Motor Co., ARB No. 2024-0014, ALJ No. 2023-SOX-00015 (ARB Apr. 5, 2024), the ARB issued a Notice of Order Granting Complainant's Request to Dismiss Petition for Review (Notice) after Complainant filed notice indicating a desire to file his claim in federal court, "[p]ursuant to 29 C.F.R. § 1980.114."
On January 16, 2024, Complainant filed a Petition for Review with the ARB seeking review of the ALJ's Decision & Order. The ARB issued briefing orders, and Complainant did not file an opening brief. Consequently, the ARB issued an Order to Show Cause on March 20, 2024. In the Order to Show Cause, the ARB ordered Complainant to file a response. The ARB also ordered Complainant to file an Opening Brief with his response.
On March 29, 2024, Complainant filed a document titled "Show of Cause." Complainant apologized for not submitting a timely Opening Brief and stated that he overlooked the email notifying him of the Briefing Order. Complainant also filed a second document on March 29, 2024, titled "Request to Kick Out."
SOX's regulations give the ARB the discretion to decide whether to grant a petitioner's request to withdraw a petition for review. The regulations also provide that "[i]n special circumstances not contemplated by the provisions of this part, or for good cause shown, the ALJ or the ARB on review may, upon application, after three days' notice to all parties, waive any rule or issue any orders that justice or the administration of the Act requires." Pursuant to the authority granted to the ARB by these regulations, and in recognition of Complainant's pro se status, his failure to file an Opening Brief, his expressed desire to exercise his right to proceed with a de novo action in federal district court, and the potential consequences of granting Complainant's request for dismissal before he actually filed a complaint in federal district court, the ARB concluded that immediately granting Complainant's request to dismiss his Petition for Review was not appropriate in the unique circumstances of this case.
The ARB noted that the SOX permits a complainant to file a de novo complaint in federal district court if the Secretary of Labor has not issued a final decision on the complainant's SOX claims within 180 days of the filing of the administrative complaint with the Department's Occupational Safety and Health Administration. To invoke this right, a complainant need only file the de novo complaint in the appropriate federal district court, and then file a file-stamped copy of the complaint with the Department within seven days. The ARB also noted that Complainant risked being barred from seeking de novo review if he withdrew his Petition for Review before filing a complaint in district court, and his only recourse would be to instead file an appeal with the appropriate United States court of appeals.
Accordingly, the ARB declined to immediately grant Complainant's request to withdraw his Petition for Review. Instead, in light of the unique circumstances of the case, and balancing the interests of the parties with the ARB's interest in achieving orderly and expeditious disposition of its cases, the ARB gave notice to the parties of its intent to grant Complainant's request to withdraw his Petition for Review and dismiss his appeal thirty days after the issuance of the Notice. The ARB also advised Complainant that if he filed a complaint for de novo review in district court before the ARB granted his request to withdraw his Petition for Review, he must file a copy of the file-stamped complaint within seven days of filing.