USDOL/OALJ Reporter: ARB Decision Caselist -- May 2009

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Summary :

Approval of settlement agreement.

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Summary :

[Nuclear and Environmental Digest VIII A 5]
MOTION FOR ARB ORDER TO REMAND TO A DIFFERENT ALJ; ALLEGATION THAT ALJ COMMITTED LEGAL ERROR IS INSUFFICIENT TO SHOW BIAS

Where the only reason the Complainant proffered for his motion to remand the case to a different ALJ was that the ALJ erred in applying the summary judgment standard, the ARB denied the motion. The ARB stated that it presumes "that an ALJ is unbiased unless a party alleging bias can support that allegation; and a party generally cannot demonstrate bias without proof of an extra-judicial source of bias.... Unfavorable rulings and possible legal errors in an ALJ's orders generally are insufficient to prove bias�." USDOL/OALJ Reporter at n.26 (citations omitted). Hasan v. Enercon Services, Inc. , ARB No. 05-037, ALJ Nos. 2004-ERA-22 and 27 (ARB May 29, 2009).

[Nuclear and Environmental Digest XIII B 8]
SUMMARY DECISION; REFUSAL TO HIRE CASE; REMAND

In Hasan v. Enercon Services, Inc. , ARB No. 05-037, ALJ Nos. 2004-ERA-22 and 27 (ARB May 29, 2009), the Complainant had filed two ERA complaints alleging that the Employer failed to hire him in retaliation for protected activity. The ALJ had granted summary decision against the Complainant, and the ARB affirmed, albeit based on a different analysis than the one employed by the ALJ. On appeal to the Third Circuit, the court found that, given a finding by the ARB that for purposes of summary judgment internet advertisements posted by the Respondent offered actual job openings, and an undisputed fact that the Respondent did not hire the Complainant for any position, it could not affirm the ARB's ultimate conclusion that the Complainant failed to make a sufficient showing that his employment applications were rejected. Accordingly, the court vacated the ARB's decision and remanded for further proceedings. The ARB in turn remanded to the ALJ to consider the portion of the summary decision motion concerning whether the Complainant established a question of material fact regarding retaliation, i.e., whether his protected activity was a contributing factor in the Respondent''s failure to hire him for the advertised positions.

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Summary :

[STAA Digest V B 2 a i]
PROTECTED ACTIVITY; REFUSAL TO WORK FOR REASON NOT RELATED TO STAA; REFUSAL BASED ON ILLNESS ARTICULATED ONLY AFTER PREVIOUSLY HAVING BEEN DISCIPLINED FOR WORK REFUSAL

The Complainant did not engage in protected activity under the STAA where he refused a supervisor's order to move a trailer, not because he felt sick and could not drive safely, but because he believed that he was not getting paid to do that kind of work. Neither did the Complainant engage in protected activity the following day when, after he had previously been instructed to move a trailer and refused and disciplined for that refusal, on a subsequent request, he refused based on a claim of illness. Horne v. United Parcel Service, Inc. , ARB No. 08-007, ALJ No. 2007-STA-39 (ARB May 29, 2009).

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Summary :

Withdrawal of objections to OSHA findings.

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Summary :

PROTECTED ACTIVITY; MEMO TO SUPERVISOR; SUBMISSION OF FORMAL COMPLAINT; INSISTENCE THAT SUPERVISOR SIGN DOCUMENTS JUSTIFYING INCREASE IN LINE PRESSURE; CONVERSATION WITH FEDERAL OFFICIAL

CONTRIBUTORY FACTOR; PRETEXT; SUBSTANTIAL EVIDENCE STANDARD

In Leak v. Dominion Resources Services, Inc. , ARB Nos. 07-043 and 07-051, ALJ No. 2006-SOX-12 (ARB May 29, 2009), the Complainant was a Technical Specialist who had been given the task of resolving deficiencies cited in a state public utilities commission notice. While performing this task, the Complainant became convinced that four gas lines needed to be operated at no higher pressure than the lowest maximum allowable operating pressure of one of the systems. The Complainant's supervisor disagreed with the Complainant's conclusion, and directed him to consider alternative operational models. The Complainant continued to express his concerns about line pressure. After being given a below expectations rating for his performance on the project, the Complainant filed two "Problem Resolution" complaints � one about the rating, and one about his concerns regarding the project. He also made an anonymous hotline call. At a meeting to discuss the Problem Resolutions, it was determined that company policy did not permit the Complainant to tape record the meeting. Subsequently, the Complainant asked his supervisor to sign documents used to justify increases in system pressure. The supervisor declined to do so. After speaking with a USDOT official, the Complainant repeated the request for the supervisor to sign the documents, which he again declined to do. The Complainant's supervisors and other managers then decided to hold a meeting to determine whether the Complainant had any legal or safety reasons for insisting that the supervisor sign the justification records. Depending on what the Complainant told them, they would then determine whether to give the Complainant an "Employment Decision Day."

At the start of the meeting, the Complainant asked if he could record the meeting, and he was told "no." The Complainant refused to participate without a recording, asked to be excused, and got up to walk out. The supervisor stated that if the Complainant left, he would be terminated. The Complainant responded "Then terminate me," and the supervisor then said "You're terminated." The Complainant was escorted out of the building. That same day, the supervisor issued a discharge letter based on the Complainant's insubordinate refusal to attend the meeting. Following a hearing, the ALJ found that the Complainant had engaged in protected activity, but that he failed to establish that such activity was a contributing cause in his termination.

On appeal, the ARB agreed with the ALJ that the Complainant engaged in protected activity when he (1) sent a memo to management about the gas line pressure; (2) submitted a Problem Resolution complaint with a copy to the Respondent's vice president; (3) insisted that his supervisor sign the justification records; (4) and engaged in a phone conversation with the USDOT official. The ARB noted the Respondent's argument that the phone conversation was about a regulatory rather than a safety issue, but found that the although the purpose of the call was different, the discussion included the Complainant's concerns about potential violation of pipeline safety rules and regulations.

The ARB also found, however, that substantial evidence supported the ALJ's finding that the Complainant failed to prove that his protected activity was a contributory factor in his discharge. Essentially, the Complainant's argument on appeal was that the meeting about the Complainant's reasons for demanding his supervisor's signature had been concocted to either force the Complainant to abandon his protected activity, or to provoke him into insubordination. The ARB found that substantial evidence supported the ALJ's finding, however, that the meeting had been called to discuss the legal and safety reasons for the Complainant's insistence that his supervisor sign the justification records, and to issue an Employment Day Decision. The ALJ also found that the supervisors did not provoke the Complainant � and that the Complainant's own behavior precipitated his termination. The ARB found that the ALJ therefore found that neither the purpose of the meeting nor the reaction to the Complainant's insubordination were pretextual. The ARB found that the ALJ had very thoroughly analyzed the evidence, and the the Complainant's argument on appeal essentially reduced to an argument that the ALJ erred by not accepting his version of the evidence. The ARB found that the substantial evidence standard required it to uphold the ALJ's findings of fact supported by substantial evidence, even if there is also substantial evidence in support of the other party, or even if the ARB would justifiably made a different choice if the matter had been before it de novo.

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Summary :

Approval of settlement agreement.

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Summary :

Approval of settlement agreement.

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Summary :

Withdrawal of objections to OSHA findings.

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Summary :

Withdrawal of objections to OSHA findings.

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Summary :

Approval of settlement agreement.

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Summary :

Withdrawal of objections to OSHA findings.

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Summary :

OFCCP COMPLIANCE REVIEW; SUBCONTRACTORS; FAILURE OF CONTRACT TO INCLUDE EQUAL OPPORTUNITY CLAUSES DOES NOT EXEMPT SUBCONTRACTOR FROM COOPERATING WITH OFCCP'S REVIEW

In OFCCP v. UPMC Braddock , ARB No. 08-048, ALJ Nos. 2007-OFC-1, 2 and 3 (ARB May 29, 2009), the Defendants were hospitals having an HMO contract with the University of Pittsburgh Medical Center health plan to provide medical products and services to U.S. government employees pursuant to a contract between the health plan and the U.S. Office of Personnel Management. OFCCP scheduled compliance reviews of the Defendants pursuant to EO 11246, Section 503 of the Rehabilitation Act, and Section 402 of the Vietnam Era Veterans' Readjustment Assistance Act. The Defendants denied that they were federal contractors or subcontractors, and refused to provide requested documents or to permit onsite reviews. OFCCP then filed an administrative complaint. The ALJ granted summary judgment in favor of OFCCP. On appeal, the Defendants presented a series of arguments as to why they were not covered subcontractors, each of which was rejected by the ARB.

First, it was undisputed that the UPMC contracts did not include equal opportunity clauses. The Defendants argued that they therefore did not have notice of the clauses' terms and had not agreed to be bound by them. The ARB found that the applicable regulations, 41 C.F.R. §§ 60-1.4(e); 60-250.5(e); 60-741.5(e), "provide that the equal opportunity clauses are incorporated by operation of law in 'every contract and subcontract required by [the relevant law] and regulations . . . to include such a clause whether or not it is physically incorporated in each such contract and whether or not the contract between the agency and the contractor is written.'" USDOL/OALJ Reporter at 5. The ARB rejected the Defendants' contention that this "incorporation doctrine" only applies to prime contractors. The ARB declined to address the Defendants' contention that the regulations were inconsistent with EO 11246, finding that it does not have jurisdiction to pass on the validity of the regulations.

Second, although the Defendants correctly noted that the UPMC-OPM contract expressly excluded hospitals from the definition of "subcontractors," the ARB agreed with the ALJ that the parties could not contractually invalidate the equal opportunity laws at issue, which mandate that the equal opportunity provisions be included in any Federal contract or subcontract.

Third, although the Defendants were not subcontractors under the FAR definition, the ARB again agreed with the ALJ that the FAR definition could not invalidate the equal opportunity laws.

Fourth, the Defendants argued that they were not subcontractors under the OFCCP regulations because they provided "personal services" such as colonoscopy and proctology examinations, and the regulations defined "subcontract" to include an agreement or arrangement to provide to the purchase, sale or use of "nonpersonal services." 41 C.F.R. §§ 60-1.3, 60-741.2, 60-250.2(l). The ARB, however, agreed with the ALJ that the FAR definition of "nonpersonal services" was applicable, and that the meaning of this term had to do with the employer-employee relationship for the provided services rather than the interpretation proferred by the Defendants. The ARB also found that even if the Defendants did not meet this first prong of the regulatory definition of subcontracting, they nonetheless met the second prong.

Finally, the Defendants argued that the ARB's decision in OFCCP v. Bridgeport Hospital , ARB No. 00-034, ALJ No. 1997-OFC-1 (ARB Jan. 31, 2003), required the ALJ to rule in their favor. The ARB agreed with the ALJ that Bridgeport was distinguishable because that case involved an insurance company rather than a medical service provider providing critical service and supplies.

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Summary :

ISSUES FOR APPEAL; WAIVER OF ISSUE WHERE ALJ'S FINDING IS NOT CONTESTED

PRETEXT SHOWN; ALLEGATIONS THAT THE COMPLAINANT HAD MADE FRAUDULENT STATEMENTS TO IMPORTANT CUSTOMER NOT SUPPORTED BY THE EVIDENCE; RELIANCE BY RESPONDENT ON EMPLOYEE MANUAL SUGGESTS PRETEXT WHERE THE RESPONDENT DID NOT ITSELF FOLLOW MANUAL'S PROCEDURE FOR TERMINATION OF EMPLOYEE

In Florek v. Eastern Air Center, Inc. , ARB No. 07-113, ALJ No. 2006-AIR-9 (ARB May 21, 2009), the Complainant was a line crewman for a company that leased a private jet to its primary customer, a medical flight company owned by seven area hospitals. In July 2004, the Complainant was asked to clean a plane; the plane was considerably soiled by human waste. The Complainant cleaned as best he could, and when the Complainant complained to his supervisor about the condition of the plane, he was told that the plane had been used to transport a cancer patient who had been in "rough shape." The Complainant was told that the medical flight company would clean the plane. After the plane was used for three more charters, the Complainant called the medical flight company and was told that it did not know about the soiled plane and that the Respondent should be taking care of the cleaning. The Complainant called an official of the Respondent about the phone conversation and later sent a memo about the problem to the official. The Complainant called the FAA about the condition fo the plane. The FAA visited the Respondent's facility while the Complainant was absent. Upon his return, the Complainant's security badge had been deactivated, and he was handed a letter of termination. The reason given for the termination was making fraudulent statements to customers and others.

Because the Respondent did not contest the issue on appeal, the ARB affirmed the ALJ's assumption that the Complainant's raising of concerns about the condition of the airplane implicated protected activity under AIR21 even though violation of no specific FAA order, regulation or standard, or any other law relating to air carrier safety had been identified. The ARB found that the Respondent had waived a challenge to the protected activity element of the complaint.

The Respondent's main defense was the contention that the Complainant's memo about the phone call showed that the Complainant made fraudulent statements to the Respondent's primary customer. The ARB, however, found that substantial evidence supported the ALJ's findings that each of the allegedly fraudulent statements were instead the Complainant's expressed opinions and questions in trying to rectify what he considered to be a safety and health hazard. The ARB also agreed with the ALJ that pretext was shown by the Respondent's claim that the Complainant was fired for violating the employee manual, but the Respondent had disregarded the employee manual's procedures when firing the Complainant. The same evidence showed that the Respondent had not proved by clear and convincing evidence that it would have fired the Complainant in the absence of the protected activity.

RULE 11 SANCTIONS; ARB DOES NOT HAVE THE AUTHORITY TO IMPOSE

In Florek v. Eastern Air Center, Inc. , ARB No. 07-113, ALJ No. 2006-AIR-9 (ARB May 21, 2009), the ALJ declined to rule on the Respondent's motion for Rule 11 sanctions. On appeal, the ARB likewise declined to rule on the motion "as it is well established that the ARB may not impose Rule 11 sanctions." USDOL/OALJ Reporter at 14 (footnote/citation omitted).

ATTORNEY'S FEES; REASONABLENESS OF ALJ'S ADJUSTMENTS WHERE FEE PETITION FAILED TO ITEMIZE, BUT DID ESTABLISH THAT FEES WERE REASONABLY OR NECESSARILY INCURRED

In Florek v. Eastern Air Center, Inc. , ARB No. 07-113, ALJ No. 2006-AIR-9 (ARB May 21, 2009), the Complainant's principal attorney submitted a an affidavit seeking attorney's fees, but did not itemize hours or services. The ARB agreed with the ALJ's finding that the affidavit contained sufficient specificity to show that his services were reasonably or necessarily incurred. The ALJ attempted to decide what constituted an objectively reasonably amount of time spent performing each task identified in the affidavit, resulting in a reduction of the award as compared to the requested amount. The attorney did not contest the ALJ's adjustments on appeal, and the ARB affirmed the calculation. The ARB also affirmed the ALJ's decision not to award any fees to two other attorneys used by the Complainant where their fee request did not detail tasks, the dates, or time spent, and did not provide a personal affidavit or any other evidence of the rates claimed. The ALJ did, however, award a limited amount for a legal assistant at this law firm.

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Summary :

[STAA Digest V B 2 a i]
PROTECTED ACTIVITY; REFUSAL TO DRIVE BASED ON ILLNESS; COMPLAINANT MUST PROVE THAT AN ACTUAL VIOLATION WOULD HAVE OCCURRED

In Bates v. USF Reddaway, Inc. , ARB No. 07-086, ALJ No. 2005-STA-29 (ARB May 20, 2009), the ARB found that substantial evidence supported the ALJ's finding that the Complainant had not engaged in protected activity when he refused a driving assignment. On his previous run, the Complainant had arrived late, and explained that he had to stop several times to use the restroom and that he had been delayed at a state truck scales facility. When asked for his logbook, he declined to produce it on the grounds that it was incomplete. The Complainant returned home. A supervisor called for the Complainant, who returned the call after he awoke from a sleep. The supervisor asked about the logbook, and told the Complainant he was suspended until he turned it in. The Complainant hung up abruptly. When he returned to the terminal and turned in his logbook, the Complainant was informed that his usual run had been given to another driver, but was offered a different run. The Complainant indicated that he wanted to drive his usual run, and declined the other run. The ALJ found that it was only upon declining the alternative run for a third time that the Complainant stated that he was declining the run because he was sick. The Respondent's supervisors did not understand why the Complainant felt he was able to do his usual run, but was too sick to take the alternative run, and suspended the Complainant. The ALJ found that the supervisor's version of the events was more credible, and the ARB found that substantial evidence supported that finding. Later, the Respondent concluded that the Complainant had falsified his logbook because the state highway officials did not have a record of inspecting or detaining the Complainant. The Respondent discharged the Complainant on this basis. Later, it converted the discharge to a suspension because upon investigation it was difficult to substantiate some the facts concerning the stop at the state scales facility. The Complainant lost his bid run, but returned to work with the same seniority. Later, due to a business slowdown, the Complainant was changed to part-time status, and eventually was laid off.

On appeal, the ARB explained that the "fatigue rule" at 49 C.F.R. § 392.3 (2008),"plainly covers a driver whose driving ability or alertness is so impaired or who anticipates that his or her ability or alertness is so likely to become impaired that it would be unsafe to begin or continue driving." USDOL/OALJ Reporter at 9 (citations omitted). The ARB noted that in a refusal to drive case, a complainant must prove that an actual violation would have occurred: "A complainant must introduce sufficient evidence to demonstrate that his driving ability is or would be so impaired that actual unsafe operation of a motor vehicle would result." Id. (citations omitted).

In the instant case, the ARB found that substantial evidence supported the ALJ's conclusion that, although the Complainant had been sick, he did not establish "that his sickness impaired or was likely to impair his ability or alertness such that it would have been unsafe for him to drive the run when he refused to drive it." Id. at 9-10.

The ARB also found that substantial evidence supported the ALJ's alternative conclusion that the Complainant did not prove a causal connection between his alleged protected activity and the adverse actions because the Respondent had legitimate non-discriminatory reasons for suspending the Complainant, terminating his employment, and ultimately laying him off.

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Summary :

Withdrawal of objections to OSHA findings.

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Summary :

[STAA Digest II Z]
ALTHOUGH CONGRESS WAIVED SOVEREIGN IMMUNITY IN REGARD TO THE POSTAL SERVICE, THE STAA'S ANTIDISCRIMINATION COVERAGE DOES NOT EXTEND TO U.S. GOVERNMENT ENTITIES

In Cawthorne v. United States Postal Service , ARB No. 08-083, ALJ No. 2008-STA-28 (ARB May 7, 2009), both OSHA and the ALJ dismissed the Complainant's complaint on the ground that the United States Postal Service was immune from suit. On appeal, the ARB clarified:

    Although the USPS, as a branch of the United States Government, ordinarily would be entitled to immunity from suit, that immunity has been expressly waived by the Postal Reorganization Act at 39 U.S.C.A. §§ 401(1) (West 2006), which permits the Postal Service "to sue and be sued in its official name." Thus, contrary to the ALJ's analysis pursuant to Rockefeller, there is an explicit statutory waiver of sovereign immunity in regard to the USPS. "That waiver, however, is not absolute and instead is based upon the nature of the claims asserted."

    In Federal Deposit Ins. Corp. v. Meyer , 510 U.S. 471, 484 (1994), the Supreme Court explained that in determining whether an individual can recover damages against the federal government, there are "two analytically distinct inquiries." "The first inquiry is whether there has been a waiver of sovereign immunity. If there has been such a waiver, as in this case, the second inquiry comes into play that is, whether the source of substantive law upon which the claimant relies provides an avenue for relief."

    Thus, although Congress has waived the USPS's sovereign immunity, the substantive law that Cawthorne relies upon, the STAA, provides that an "employer" is a "person" for purposes of coverage under the STAA's antidiscrimination provisions, but "does not include the Government." Because the USPS is a United States Government entity, the STAA does not provide Cawthorne an avenue for relief against the USPS. Accordingly, the ALJ's R. D. & O. dismissing Cawthorne's complaint because the USPS is a Government entity and, therefore, not covered under the STAA is AFFIRMED .

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

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