USDOL/OALJ Reporter: ARB Decision Caselist -- May 2006

USDOL/OALJ Reporter
Decisions of the Administrative Review Board
ay 2006

Erickson v. United States Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006)

• Title : Final Decision & Order
• Link : PDF
• Case type : CAA Whistleblower
• Summary :

  [Nuclear and Environmental Whistleblower Digest VII E]
  NAMING OF RESPONDENTS; OFFICE OF THE INSPECTOR GENERAL IS A PART OF THE AGENCY RATHER THAN A SEPARATE ENTITY

  In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant named the EPA and the EPA Office of the Inspector General each as respondents in their own right. The ARB noted that the EPA IG is an employee of, acts on behalf of, and operates for the benefit of the EPA; thus, when referencing the Respondent in the decision, the ARB would merely refer to the EPA unless necessary to identify specific units within EPA.

  [Nuclear and Environmental Whistleblower Digest XX E]
  SOVEREIGN IMMUNITY; OPINION LETTER OF THE OFFICE OF LEGAL COUNSEL IS BINDING IN DOL WHISTLEBLOWER ADJUDICATIONS; SOVEREIGN IMMUNITY WAIVED UNDER THE SWDA AND THE CAA BUT NOT THE FWPCA

  In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Environmental Protection Agency was found to be liable to suit under the whistleblower provisions of the SWDA and the CAA, but not the FWPCA. In so holding, the ARB found that it was bound by an unpublished opinion letter of the Office of Legal Counsel (OLC) in which it was concluded that Congress had waived sovereign immunity with respect to the whistleblower provisions of SWDA and the CAA, but not the FWPCA. OLC opinions are binding on executive branch agencies.

  [Nuclear and Environmental Whistleblower Digest XII D 13]
  PROTECTED ACTIVITY; FILING A WHISTLEBLOWER COMPLAINT

  Filing a whistleblower complaint is quintessential protected activity. Talking about such a complaint with the news media and a federal agency is also protected activity. Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006).

  [Nuclear and Environmental Whistleblower Digest XX D 13]
  PROTECTED ACTIVITY; COMPLAINT ABOUT DESTRUCTION OF E-MAIL RECORDS

  In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant wrote a letter to a Congressman alleging that EPA was destroying e-mail records so that it would not have to provide them to FOIA requesters. The ALJ found that the Complainant did not make a showing of what information was on the backup e-mail tapes or how the destruction of such information specifically violated the environmental laws. Nonetheless, the ALJ concluded that the nature of such records, by virtue of their being EPA e-mail records, preponderated in favor of a finding that some of the records would relate to concerns about environmental containments, and therefore the letter to the Congressman was protected activity. The ARB rejected this logic, finding that it "greatly extends controlling precedent that the employee's concerns must be reasonably related to a violation of the environmental acts or a specific environmental threat." USDOL/OALJ Reporter at 17. The ARB found that the letter was not protected activity.

  [Nuclear and Environmental Whistleblower Digest III C 1]
  TIMELINESS OF COMPLAINT; DISTINCTION BETWEEN CONTINUING EFFECTS OF A DISCRETE ADVERSE ACTION AND A CONTINUING VIOLATION

  In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant did not timely file an environmental whistleblower complaint upon being transferred to a new position. The ARB found that she appeared to be arguing on appeal that her whistleblower complaint was timely because, upon transfer to a new position, she had been shunned by co-workers, "put on display" by being stationed in the library, was underutilized, and was required to supervise computer specialists even though she lacked necessary skills. The ARB, however, found that the Complainant was actually complaining about the consequences i.e., the "continuing effects" -- of her transfer. The Board distinguished between the continuing effects of a prior adverse action and continuing violations. The Board noted that "to allow a continuing effects theory to revive expired or stale claims would render the filing time periods in the whistleblower provisions a nullity." USDOL/OALJ Reporter at 22 (footnote omitted).

  [Nuclear and Environmental Whistleblower Digest XIII B 15]
  ADVERSE EMPLOYMENT ACTION; "SHUNNING" BY CO-WORKERS MUST HAVE HAD A TANGIBLE EFFECT ON TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT TO BE ADVERSE ACTION

  In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant argued, inter alia , that upon transfer to a new position, she was subjected to adverse employment action because she had been shunned by co-workers. The ARB affirmed the ALJ's finding that the alleged shunning was not an adverse action because it had no tangible effect on the terms, conditions or privileges of the Complainant's employment. In addition, the ARB found that the Complainant had failed to prove that her co-workers knew about her protected whistleblowing activity.

  [Nuclear and Environmental Whistleblower Digest XIII B 18]
  ADVERSE ACTION; RETALIATORY MOTIVE; A SUPERVISOR IS NOT UNDER AN OBLIGATION TO CLARIFY INSTRUCTIONS THAT WERE UNREASONABLY INTERPRETED BY THE COMPLAINANT AS A GAG ORDER

  In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant had been referred to the agency's Inspector General for an investigation of her contracting actions [the IG ultimately finding no misconduct], removed from a position in which she could make contract commitments on behalf of the agency and transferred to a new position. In a memo informing her of these actions, the Complainant's supervisor instructed her not to have discussions about contracts with other agency personnel, or with contractors for contract administration or management or technical direction. The Complainant sent an e-mail to the supervisor indicating that she construed this instruction as a gag order forbidding her to discuss anything with anyone. The ALJ found that that supervisor's failure to clarify the scope of his order was evidence of intent to discriminate against the Complainant. The ARB disagreed, finding that the agency had no duty to clarify instructions to subordinates and that the Complainant's interpretation of the instructions as a complete gag order was unreasonable. The ARB found that the supervisor's silence in the face of the Complainant's e-mail was not evidence of retaliation.

  [Nuclear and Environmental Whistleblower Digest XIII B 18]
  ADVERSE EMPLOYMENT ACTION; WRITTEN WARNING, STANDING ALONE, IS NOT AN ADVERSE ACTION

  A written warning was found not to constitute an adverse employment action in Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), where the warning had not been placed in the Complainant's personnel file and had no adverse impact on the terms, conditions, or privileges of the Complainant's employment.

  [Nuclear and Environmental Whistleblower Digest XIII B 18]
  ADVERSE ACTION; HOSTILE WORK ENVIRONMENT; COMPLAINANT SUBJECTED TO "DIN OF HOSTILE REMARKS" AT STAFF MEETING

  In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant attended a staff meeting in which a FOIA officer stated that she had received an inquiry from a Congressman who had received a written complaint that the agency was destroying e-mail records to make them unavailable to FOIA requesters. The FOIA officer stated that if the person who complained to the Congressman had only first asked the FOIA office about the e-mail it could have been explained that the records were destroyed based upon a routine neutral policy and that hard copies of all the e-mails had been kept. The Complainant argued that everyone at the meeting knew it was she who had sent the letter to the Congressman, and that she had been subjected to the "din of hostile remarks" at the meeting. The Complainant presented this episode as evidence of a hostile work environment. The ARB, however, agreed with the ALJ that the hostility at the meeting was not severe enough to contribute to a hostile work environment, and that it was not adverse employment action because it had no tangible job consequences.

  [Nuclear and Environmental Whistleblower Digest XIII B 18]
  ADVERSE EMPLOYMENT ACTION; HOSTILE WORK ENVIRONMENT; SUSPENSION OF FLEXIPLACE PRIVILEGES NOT ADVERSE ACTION WHERE THE SUSPENSION WAS NOT HUMILIATING AND DID NOT INTERFERE WITH JOB PERFORMANCE

  In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), after the Complainant's supervisor asked her several times to organize and file large piles of documents in her cubicle, but the piles remained, the supervisor suspended the Complainant's flexiplace privilege and photographed the cubicle to document the disarray. The flexiplace privilege was restored after the Complainant organized the documents. The flexiplace privilege was briefly suspended again several months later while the Complainant was unable to use her home computer. The ARB agreed with the ALJ's conclusion that these events did not contribute to a hostile work environment because they were not severe, were not humiliating, and did not interfere with the Complainant's job performance.

Klopfenstein v. PCC Flow Technologies Holdings, Inc. , ARB No. 04-149, ALJ No. 2004-SOX-11 (ARB May 31, 2006)

• Title : Final Decision & Order
• Link : PDF
• Case type : SOX Whistleblower
• Summary :

  [Nuclear and Environmental Whistleblower Digest VIII A 2 c]
  SUFFICIENCY OF ALJ DECISION; MAKING FINDINGS ON ALL CONTESTED ISSUES FACILITATES APPELLATE REVIEW

  In Klopfenstein v. PCC Flow Technologies Holdings, Inc. , ARB No. 04-149, ALJ No. 2004-SOX-11 (ARB May 31, 2006), the ARB found that the ALJ's lack of findings on whether the complainant had engaged in protected activity and on causation hampered its ability to review the decision on appeal. The Board indicated that the ALJ should make findings on all contested issues.

  Compare Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006) (ARB, assumes without deciding, that the Complainant engaged in protected activity because her complaints failed on other grounds).

  COVERED RESPONDENT; SUBSIDIARY AND CORPORATE OFFICER'S STATUS AS COVERED RESPONDENTS IS DETERMINED BASED ON COMMON LAW AGENCY PRINCIPLES; SOX WHISTLEBLOWER COMPLAINT DOES NOT REQUIRE NAMING OF PUBLICLY TRADED COMPANY SO LONG AS ONE RESPONDENT IS AN OFFICER, EMPLOYEE, CONTRACTOR, SUBCONTRACTOR, OR AGENT OF SUCH A COMPANY

  n Klopfenstein v. PCC Flow Technologies Holdings, Inc. , ARB No. 04-149, ALJ No. 2004-SOX-11 (ARB May 31, 2006), the Complainant was the Vice President of Operations for a subsidiary (the "Employer") of two limited liability corporations, which in turn were subsidiaries of a holding company ("Holding"), which in turn was the subsidiary of a publicly traded parent company. At issue was the ALJ's finding that the holding company and a Vice President of Finance for the Complainant's Employer were not covered entities under the SOX. The ARB held that the ALJ misapplied the ARB's decision in Flake v. New World Pasta Co. , ARB No. 03-126, ALJ No. 2003-SOX-18 (ARB Feb. 25, 2004), and misapplied the law of agency. The ALJ had concluded that under Flake , the SOX does not provide a cause of action against a non-public subsidiary; the ARB noted that in Flake , the named Respondent did not have a publicly traded parent, so the ARB did not have the occasion in that case to decide whether a non-public subsidiary of a public parent could be covered under the Act.

  And the ARB did not specifically reach that issue in the present case either. Rather, the ARB wrote: "[w]e do not interpret the Act to require a complainant to name a corporate respondent that is itself registered under § 12 or required to file reports under § 15(d),' so long as the complainant names at least one respondent who is covered under the Act as an officer, employee, contractor, subcontractor, or agent' of such a company." USDOL/OALJ Reporter at 13. In addition, the ARB held that Flake did not stand for the proposition that a subsidiary cannot by definition be an agent. Rather, "[w]hether a particular subsidiary or its employee is an agent of a public parent for purposes of the SOX employee protection provision should be determined according to principles of the general common law of agency." USDOL/OALJ Reporter at 14 (footnote omitted). The ARB stated that the function of the ALJ is to ascertain whether the factual elements set forth in the Restatement of Agency are present. The ARB remanded to the ALJ to make findings of fact necessary to apply agency principles in determining whether the holding company and the Employer's VP for Finance were the publicly traded parent company's agents with regard to the termination of the Complainant's employment.

  PROTECTED ACTIVITY; DICTA SUGGESTING THAT COMPLAINANT NEED NOT BE THE FIRST TO RAISE THE ISSUE, OR BE BASED ON A COMPLAINANT'S BELIEF THAT HE IS REPORTING FRAUD; SOX COVERS NOT JUST FRAUD BUT PROVISION OF INFORMATION REGARDING VIOLATION OF ANY SEC RULE OR REGULATION

  In Klopfenstein v. PCC Flow Technologies Holdings, Inc. , ARB No. 04-149, ALJ No. 2004-SOX-11 (ARB May 31, 2006), the Board remanded the matter for the ALJ to make findings on whether the Complainant had engaged in protected activity. In this respect, the Board observed that

  [C]ontrary to the Respondents' arguments, we do not believe that activity is protected only when the complainant is the first to raise the issue, or when the communications relate to published information, or when the complainant believes he is reporting "fraud." SOX protection applies to the provision of information regarding not just fraud, but also "violation of any rule or regulation of the Securities and Exchange Commission." 18 U.S.C.A. § 1514A(a)(1). ... A complainant need not express a concern in every possible way or at every possible time in order to receive protection, so long as the complainant's actual communications "provide information, cause information to be provided, or otherwise assist in an investigation" regarding a covered violation. 18 U.S.C.A. § 1514A(a)(1).

  USDOL/OALJ Reporter at 17. The ARB observed that the Complainant's concerns about in-transit inventory suggested, at a minimum, incompetence in his Employer's internal controls that could affect the accuracy of its financial statements. The Board stated that the Complainant's "communications thus related to a general subject that was not clearly outside the realm covered by the SOX, and it certainly is possible that Klopfenstein could have believed that the problems were a deficiency amounting to a 'violation.' See, e.g., Collins v. Beazer Homes USA Inc. , 334 F. Supp.2d 1365, 1378 (N.D. Ga. 2004) (holding that "allegations of violations of the company's internal accounting controls were within the zone of protection afforded by" the SOX)." The ARB did not make a finding on whether the Complainant's concerns about inventory accounting were reasonable, but directed the ALJ to make relevant findings on remand.

  [Editor's note: Compare Bishop v. PCS Administration (USA), Inc. , No. 05-C-5683 (N.D. Ill. May 23, 2006), in which the District Court for the Northern District of Illinois indicated that an element of fraud is necessarily pleaded in a SOX complaint. Bishop , slip op. at 23-24 (also available at 2006 WL 1460032 at *9).]

  CONTRIBUTING FACTOR STANDARD; COMPLAINANT IS NOT REQUIRED TO ESTABLISH PRETEXT

  In Klopfenstein v. PCC Flow Technologies Holdings, Inc. , ARB No. 04-149, ALJ No. 2004-SOX-11 (ARB May 31, 2006), the ARB stated the correct standard for establishing whether protected activity was a contributing factor to the adverse employment action, and clarified that a complainant does not have the burden to establish that a respondent's articulated reason for the adverse action was pretext, albeit it if often wise to do so. The Board wrote:

      Under the SOX, the correct standard is whether protected activity was a contributing factor in Klopfenstein's termination. See Getman , slip op. at 8; AIR 21, § 42121(a)-(b)(2)(B)(iii)-(iv); Halloum v. Intel , ARB No. 04-068, ALJ No. 2003-SOX-7 (Jan. 31, 2006), slip op. at 8 (SOX complainant need not show protected activity was primary motivating factor in order to establish causation). A contributing factor is "any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision." Marano v. Department of Justice , 2 F.3d 1137, 1140 (Fed. Cir. 1993) (interpreting the Whistleblower Protection Act, 5 U.S.C.A. § 1221(e)(1)). As Marano explains, the contributing factor standard was "intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a 'significant,' motivating, 'substantial,' or predominant' factor in a personnel action in order to overturn that action." Id.

      Because, in examining causation, the "ultimate question" is whether the complainant has proven that protected activity was a contributing factor in his termination, a complainant need not necessarily prove that the respondent's articulated reason was a pretext in order to prevail. Of course, most complainants will likely attempt to prove pretext, because successfully doing so provides a highly useful piece of circumstantial evidence. But a complainant is not required to prove pretext, because a complainant alternatively can prevail by showing "that the defendant's reason, while true, is only one of the reasons for its conduct, and another motivating factor' is the plaintiff's protected characteristic." Rachid v. Jack in the Box, Inc. , 376 F.3d 305, 312 (5th Cir. 2004).

  USDOL/OALJ Reporter at 18-19 (footnotes omitted).

Santamaria v. U.S. Environmental Protection Agency , ARB No. 04-063, ALJ No. 2004-ERA-6 (ARB May 31, 2006)

• Title : Final Decision & Order
• Link : PDF
• Case type : Environmental Whistleblower
• Summary :

  [Nuclear and Environmental Whistleblower Digest XII D 13]
  PROTECTED ACTIVITY; SOCIO-ECONOMIC CONCERNS NOT RELATING TO ENVIRONMENTAL HEALTH AND SAFETY ARE NOT COVERED UNDER THE ENVIRONMENTAL WHISTLEBLOWER LAWS

  In Santamaria v. U.S. Environmental Protection Agency , ARB No. 04-063, ALJ No. 2004-ERA-6 (ARB May 31, 2006), the Complainant did not engage in protected activity under the environmental whistleblower laws where the concerns he raised related only to EPA's alleged failure to assure that that Minority Business Enterprise and Women-Owned Business Enterprises legal requirements were being complied with by EPA contractors. The ARB found that these concerns raised related to socio-economic matters rather than environmental health and safety issues.

  [Nuclear and Environmental Whistleblower Digest VII A 2]
  DISCOVERY; ALJ'S DISCRETION TO SUSPEND DISCOVERY WHILE CONSIDERING POTENTIALLY DISPOSITIVE MOTION FOR SUMMARY DECISION

  In Santamaria v. U.S. Environmental Protection Agency , ARB No. 04-063, ALJ No. 2004-ERA-6 (ARB May 31, 2006), the ALJ did not abuse his discretion in suspending further discovery after the Respondent filed a potentially dispositive motion for summary decision where the Complainant failed to show how further discovery would have permitted rebuttal of the Respondent's motion. The Respondent's motion had been based on the argument that the Complainant had not engaged in protected activity, and the ARB observed that the Complainant himself should have known whether he engaged in such activity.

  [Nuclear and Environmental Whistleblower Digest XII A]
  SUBJECT MATTER JURISDICTION; A FINDING THAT A COMPLAINANT DID NOT ENGAGE IN PROTECTED ACTIVITY IS NOT A FINDING OF LACK OF "JURISDICTION" BUT RATHER A LACK OF COVERAGE

  In Santamaria v. U.S. Environmental Protection Agency , ARB No. 04-063, ALJ No. 2004-ERA-6 (ARB May 31, 2006), the ALJ found that the Complainant did not engage in protected activity and therefore he did not have "jurisdiction" over the complaint. The ARB clarified that the issue was one of coverage not jurisdiction.

Bhat v. District of Columbia Water and Sewer Authority , ARB No. 06-014, ALJ No. 2003-CAA-17 (ARB May 30, 2006)

• Title : Final Decision & Order Approving Settlement & Dismissing Complaint & Petition for Review
• Link : PDF
• Case type : SDWA Whistleblower
• Summary : Approval of settlement

Johnson v. EG&G Defense Materials, Inc. , ARB No. 06-067, ALJ No. 2005-SDW-2 (ARB May 25, 2006)

• Title : Final Order Granting Complainant's Motion to Withdraw Petition for Review
• Link : PDF
• Case type : SDWA Whistleblower
• Summary :

  WITHDRAWAL OF APPEAL; PETITIONER IS NOT REQUIRED BY THE ARB TO SHOW CAUSE FOR WITHDRAWAL

  In Johnson v. EG&G Defense Materials, Inc. , ARB No. 06-067, ALJ No. 2005-SDW-2 (ARB May 25, 2006), the ARB stated that it does not require a petitioner to demonstrate cause for withdrawing an appeal.

Cyberworld Enterprise Technologies, Inc. v. Adm., Wage and Hour Div., ESA, USDOL , ARB No. 04-049, ALJ No. 2003-LCA-17 (ARB May 24, 2006)

• Title : Final Decision & Order
• Link : PDF
• Case type : LCA Whistleblower
• Summary :

  ACTIONS OR INACTIONS OF WAGE AND HOUR DIVISION; FAILURE TO ISSUE DETERMINATION WITHIN 30 DAYS DID NOT DEPRIVE WAGE AND HOUR OF JURISDICTION TO PROCEED

  In Cyberworld Enterprise Technologies, Inc. v. Adm., Wage and Hour Div., ESA, USDOL , ARB No. 04-049, ALJ No. 2003-LCA-17 (ARB May 24, 2006), the ARB affirmed the ALJ's finding that the Wage and Hour Administrator's failure to issue a determination within 30 days of the filing of the complaint, as directed by 20 C.F.R. § 655.806(a)(3), did not deprive the Administrator of jurisdiction to proceed; the 30 day limit was directory, and not mandatory.

Rockeller v. U.S. Dept. of Energy, Carlsbad Area Office , ARB Nos. 03-048, 03-084, ALJ Nos. 2002-CAA-5, 2003-ERA-10 (ARB May 17, 2006)

• Title : Order Denying Reconsideration
• Link : PDF
• Case type : CAA Whistleblower
• Summary : Denial of Reconsideration

Saban v. Morrison Knudsen , ARB No. 03-143, ALJ No. 2003-PSI-1 (ARB May 17, 2006)

• Title : Order Denying Reconsideration
• Link : PDF
• Case type : PSI Whistleblower
• Summary : Denial of Reconsideration

Cefalu v. Roadway Express, Inc. , ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB May 12, 2006)

• Title : Order Denying Stay
• Link : PDF
• Case type : STAA Whistleblower
• Summary :

  [STAA Digest II L]
  STAY OF RELIEF; FOUR-PART TEST (LIKELY SUCCESS ON APPEAL; IRREPARABLE INJURY; PROSPECT OTHERS WILL BE HARMED; PUBLIC INTEREST); MERE FINANCIAL LOSS DOES NOT ESTABLISH IRREPARABLE INJURY; LENGTH OF TIME COMPLAINANT HAS WAITED FOR RELIEF; STAA AS A PUBLIC PROTECTION LAW

  In Cefalu v. Roadway Express, Inc. , ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB May 12, 2006), the ARB had affirmed the ALJ's award of reinstatement, back pay and other relief, and the ALJ's attorney fee order. The Respondent appealed to the Seventh Circuit and sought a stay from the ARB. The ARB, applying the four-part test found in Dutkiewicz v. Clean Harbors Envtl. Servs., Inc. , ARB No. 97-090, ALJ No. 1995-STA-34 (ARB Sept. 23, 1997), denied a stay because (1) the Respondent's motion provided no reason why it would be likely to succeed on appeal, (2) "mere" financial loss does not support a finding of irreparable harm, and the only "irreparable injury" alleged was that the Respondent would have to make payments to the Complainant and his counsel and would have to spend extensive time and resources to post notices of the decision in its nationwide system of terminals, (3) the Complainant had already waited more than four years to have his pay and benefits restored and may continue to suffer harm if a stay was granted, and (4) the STAA is a public protection statute; therefore the public interest would not be served if a stay was granted.

Krahn v. United Parcel Service of America, Inc. , ARB No. 04-097, ALJ No. 2003-STA-24 (ARB May 9, 2006)

• Title : Final Decision and Order
• Link : PDF
• Case type : STAA Whistleblower
• Summary :

  [STAA Digest II E 4]
  DUE PROCESS; ALJ ERRS IN MAKING ALTERNATIVE FINDING ON POSSIBLE THEORY OF CASE NOT ACTUALLY TRIED

  In Krahn v. United Parcel Service of America, Inc. , ARB No. 04-097, ALJ No. 2003-STA-24 (ARB May 9, 2006), the ARB held that the ALJ erred in making an alternative finding on whether the Complainant had proved that he had engaged in protected activity under section 31105(a)(1)(A) (the "filing of a complaint" provision), where the Complainant had not alleged protected activity under this provision of the STAA, but rather under the "refusal to drive" provisions of section 31105(a)(1)(B). The ARB cited cases holding that due process precludes a decision on STAA provisions not actually tried.

  [STAA Digest V B 2 c]
  PROTECTED ACTIVITY; ACTUAL VIOLATION CLAUSE; COMPLAINANT'S SUBJECTIVE ASSESSMENT THAT IT WOULD HAVE VIOLATED A STATE "REASONABLE AND PRUDENT" SPEED LAW TO HAVE MAINTAINED THE SPEED REQUESTED BY HIS EMPLOYER IS NOT PROOF OF AN ACTUAL VIOLATION

  In Krahn v. United Parcel Service of America, Inc. , ARB No. 04-097, ALJ No. 2003-STA-24 (ARB May 9, 2006), the Board assumed for purposes of deciding the appeal that the Complainant's refusal to follow a manager's instructions regarding brake usage and maintaining speed was a conditional refusal to drive covered under section 31105(a)(1)(B). The Complainant alleged that his refusal to increase or maintain his speed as requested by the manager was protected activity under the "actual violation" provision of section 31105(a)(1)(B)(i) because to comply would have violated a state law providing that a driver must not drive faster than what is "reasonable and prudent under the circumstances...." The Board rejected this contention because, other than his general allegation that it would have been unsafe, the Complainant had "not identified a single specific incident where following [the manager's] instructions ... would have resulted in an actual violation of [the state law]." USDOL/OALJ Reporter at 9. The Complainant's subjective assessment that he would have violated the state law was not proof of an actual violation.

  [STAA Digest V B 2 c]
  PROTECTED ACTIVITY; REASONABLE APPREHENSION CLAUSE; COMPLAINANT'S SUBJECTIVE ASSESSMENT THAT HIS METHOD OF OPERATING THE VEHICLE WAS THE SAFEST WITHOUT PROOF THAT THE HAZARDS ALLEGED ACTUALLY PRESENTED THEMSELVES WAS AN INSUFFICIENT JUSTIFICATION FOR REFUSING TO MAINTAIN THE SPEED REQUESTED BY HIS EMPLOYER

  In Krahn v. United Parcel Service of America, Inc. , ARB No. 04-097, ALJ No. 2003-STA-24 (ARB May 9, 2006), the Board assumed for purposes of deciding the appeal that the Complainant's refusal to follow a manager's instructions regarding brake usage and maintaining speed was a conditional refusal to drive covered under section 31105(a)(1)(B). The maximum posted speed on the Complainant's route was 75 miles per hour, but the Respondent's policy was not to exceed 65 miles per hour. The Complainant routinely drove much slower. The Complainant alleged that his refusal to increase or maintain his speed as requested by the manager was protected activity under the "reasonable apprehension" provision of section 31105(a)(1)(B)(ii) based on his testimony that the Respondent's vehicles were, in most instances, unsafe at 65 miles per hour. The ARB rejected this contention because the Complainant did not provide any support for his contention, and because the record reflected that three other regularly assigned drivers on the same route routinely completed the trip in less time than the Complainant without incident. The Board acknowledged that the Complainant was a safety-conscious individual -- but without identifying that any potential hazards actually presented themselves -- the Complainant's "own subjective assessment that his way of operating the vehicle was the safest method is not sufficient justification for refusing to follow [his manager's] instructions." USDOL/OALJ Reporter at 12.