USDOL/OALJ Reporter: ARB Decision Caselist - May 2015

INTERLOCUTORY APPEAL; ALJ�S DENIAL OF MOTION FOR SECOND AMENDMENT OF COMPLAINT; ARB IS RELUCTANT TO INTERFERE WITH ALJ�S CONTROL OVER THE COURSE OF A HEARING

In Graves v. MV Transportation, Inc. , ARB No. 15-058, ALJ No. 2015-NTS-1 (ARB May 29, 2015), the Complainant sought ARB review of the ALJ's "Order Striking Second Amended Complaint." The ALJ had stricken the second amended complaint because the Complainant had not followed the procedure the ALJ had established in an order issued following a conference call. The ALJ had granted leave to amend the complaint based on the Complainant's argument that he needed first to obtain certain documents from OSHA. The motion to amend later filed by the Complainant, however, appeared to allege new adverse actions that did not appear to be based on the documents the Complainant was attempting to obtain from OSHA, and which had not been mentioned earlier by the Complainant. The ARB denied interlocutory review, finding that the Complainant had not established that his appeal fell within the collateral order exception, and noting that it is "very reluctant to interfere with an ALJ's control over the course of a hearing." USDOL/OALJ Reporter at 5.

The Respondent withdrew its petition for ARB review. The ARB dismissed the petition, noting that the ALJ's decision would be the final decision of the Department in the matter.

PROTECTED ACTIVITY; WORKPLACE VIOLENCE AS A SAFETY ISSUE

PROTECTED ACTIVITY; COMPLAINANT�S REASONABLE BELIEF UNDER § 20109(a)(1) THAT HE WAS REPORTING VIOLATION OF A FEDERAL REGULATION WHERE HE HAD BEEN TAUGHT THAT TO FOLLOW FEDERAL REGULATIONS HE MUST FOLLOW THE RESPONDENT�S WORKPLACE REGULATIONS

PROTECTED ACTIVITY; COMPLAINANT�S GOOD FAITH REPORTING UNDER § 20109 (b)(1)(A) OF A HAZARDOUS CONDITION BASED ON DISCORDENT AND POTENTIALLY VIOLENT SITUATION BETWEEN ENGINEER AND CONDUCTOR

In Leiva v. Union Pacific Railroad Co., Inc. , ARB Nos. 14-016, -017, ALJ No. 2013-FRS-19 (ARB May 29, 2015), the Complainant, who was the train's engineer, became involved in an altercation with the train's conductor. The Complainant, fearing for his safety, made a series of phone calls. A manager asked him to work it out with the conductor, and stated that if they returned to the facility they would both be placed out of service. The Complainant felt that he could not work it out and insisted on being returned to the facility to file a report. Upon arriving at the facility both the Complainant and the conductor filed reports. They were both pulled out of service without pay and charged with workplace violence. The manager admitted that if both men had simply returned to work the Complainant would not have been pulled out of service. The manager considered the information that the Complainant provided about the conductor's conduct to be a safety issue. The Respondent scheduled a hearing. Later, the Respondent proposed that the two men sign a hearing waiver agreeing to (1) termination of employment followed by immediate reinstatement as a probationary employee, (2) no pay for time lost, (3) dismissal of the Complainant's claims, (4) refrain from similar conduct in the future or be subject to disciplinary action, and (5) attend safety intervention and workplace violence training. The Complainant signed the waiver because he needed to recover the lost pay. The Complainant was later informed that the waiver and his participation in workplace violence would be part of his personnel record. The Complainant attempted to clear his name, but obtaining no assistance from Respondent's managers, filed an FRSA complaint.

The ARB affirmed the ALJ's findings that the Complainant proved that he engaged in protected activity under 49 U.S.C. § 20109(a)(1) and § (b)(1)(A). The ARB wrote:

    Substantial evidence supports the ALJ's conclusion that Leiva [the Complainant] proved his case by a preponderance of the evidence. First, Leiva proved by a preponderance of the evidence that he engaged in protected activity under 49 U.S.C.A. § 20109(a)(1), which states that an employee is protected when he or she provides information in good faith regarding any conduct that the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to railroad safety or security. Union Pacific argues that Leiva never presented any evidence that he reasonably believed that he was reporting a violation of federal law. However, Jenkins testified that he taught engineers, of which Leiva was one, about safety, and taught them specifically that if they complied with Union Pacific's rules then they would be in compliance with the federal regulations because Union Pacific's rules were more stringent than the regulations. Further, and consistent with this testimony, Leiva testified that Union Pacific taught him that to comply with federal regulations, he had to follow Union Pacific rules. He believed that several Union Pacific rules of conduct were violated and implicated safety. Substantial evidence supports the ALJ's finding that Leiva reasonably believed that he was reporting a violation of a federal regulation as provided in section (a)(1). Union Pacific also argues that Leiva testified that he was not aware of any federal laws or regulations when he reported the fight to his supervisors. This argument fails because the statute does not require that an employee know the specific rules that he reasonably believes are being violated when he makes his report�the statute only requires that an employee have a reasonable belief in a violation of a Federal law, rule, or regulation related to railroad safety or security. Leiva proved that he had such a reasonable belief by a preponderance of the evidence.     Leiva also proved that he engaged in protected activity by a preponderance of the evidence under 49 U.S.C.A. § (b)(1)(A), which states that an employee is protected if he reports a hazardous safety or security condition in good faith. Union Pacific argues that Leiva presented no evidence that his report had anything to do with a "hazardous" condition. However, several witnesses including Leiva, Lorance [the manager of operations at the facility from which the train originated], and Jenkins [the manager of operations (safety director) at another facility], testified that Leiva felt threatened by Mr. F. [the conductor] during and after the altercation. Further, Leiva testified that communication between an engineer and a conductor is essential to the safe operation of a train. More importantly, Leiva did not feel that he could adequately communicate with Mr. F. for the safe operation of the train. Thus, the discordant and potentially violent situation between the engineer and the conductor of the train itself had the tendency to create a hazardous safety or security condition. Bolstering this conclusion, Lorance testified that he considered Mr. F.'s conduct to be a safety issue. Finally, Jenkins testified that he had no reason to doubt Leiva's good faith in reporting the incident. Thus, there is substantial evidence in the record to support that Leiva reasonably believed that he was reporting in good faith a hazardous safety or security condition in violation of section (b)(1)(A).

USDOL/OALJ Reporter at 6-7 (footnotes omitted).

FRSA PUNITIVE DAMAGE AWARD DOES NOT REQUIRE "ILLEGAL MOTIVE"; SIZE OF PUNITIVE DAMAGE AWARD IS A FACT BASED DETERMINATION

In Leiva v. Union Pacific Railroad Co., Inc. , ARB Nos. 14-016, -017, ALJ No. 2013-FRS-19 (ARB May 29, 2015), the ARB affirmed the ALJ's finding that the Respondent violated the FRSA employee protection provision, and remanded to the ALJ for consideration of the Complainant's claim for punitive damages, which the ALJ had not addressed in his decision and order. The ARB noted:

    Under 49 U.S.C.A. § 20109(e)(3), "[r]elief in any action under subsection (d) may include punitive damages in an amount not to exceed $250,000." FRSA does not require "illegal motive" to sustain a punitive damage award. An award of punitive damages may be merited where there has been "�reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law.�" The size of a punitive award "is fundamentally a fact-based determination." We remand to the ALJ to determine whether a punitive damages award is merited and if so, the size of the punitive damages award.

USDOL/OALJ Reporter at 8 (footnotes omitted).

SETTLEMENT AGREEMENT; RELEASE PROVISION INTERPRETED AS LIMITED TO RIGHT TO SUE IN THE FUTURE ON CLAIMS ARISING OUT OF FACTS OCCURRING BEFORE THE DATE OF THE AGREEMENT

In Schow v. Union Pacific Railroad Co. , ARB No. 15-048, ALJ No. 2013-FRS-43 (ARB May 29, 2015), the ARB construed a release provision of a settlement agreement as follows: "Waiver provisions such as this are limited to the right to sue in the future on claims or causes of action arising out of facts or any set of facts occurring before the date of the agreement; such waivers do not apply to actions taken by the employer subsequent to the agreement date." USDOL/OALJ Reporter at 2 (footnote omitted) (emphasis as in original.

[Nuclear and Environmental Digest XI A 2 b ii]
[STAA Digest IV A 2 b ii]
TEMPORAL PROXIMITY; CONCURRING MEMBER�S OPINION THAT COMPLAINANT�S BURDEN TO PROVE CAUSATION IS NOT AUTOMATICALLY MET BY RELYING SOLELY ON SHORT TEMPORAL PROXIMITY AND KNOWLEDGE OF PROTECTED ACTIVITY; WHETHER BURDEN MET IS A CASE-BY-CASE DETERMINATION

In Dho-Thomas v. Pacer Energy Marketing , ARB No. 13-051, ALJ Nos. 2012-STA-46, 2012-TSC-1 (ARB May 27, 2015), the ARB summarily affirmed the ALJ's dismissal of the Complainant's STAA and TSCA whistleblower complaints. The ALJ had found that the Complainant failed to prove by a preponderance of the evidence that she engaged in protected activity under the STAA, and that she had failed to prove a causal relationship between TSCA-protected activity and her employment termination. Although the ALJ had applied "contributing factor" rather than "motivating factor" analysis to the TSCA causation issue, it was harmless error because a complainant who cannot might the lesser "contributing factor" test cannot met the heightened causation standard under the "motivating factor" test. One member of the panel concurred, stating that the majority's ruling makes it clear "that, whether the causation standard is �motivating factor,� as in this case or �contributing factor,� a complainant does not automatically prove causation by relying solely on timing (short temporal proximity) and knowledge of protected activity; it is a case-by-case determination dependent on the facts of the case." USDOL/OALJ Reporter at 5 (footnote omitted) (emphasis as in original).

[STAA Digest V A]
[STAA Digest V B 1]
PROTECTED ACTIVITY; DISCLOSURE TO A THIRD-PARTY NON-EMPLOYER MIGHT CONSTITUTE PROTECTED ACTIVITY UNDER THE STAA

In Dho-Thomas v. Pacer Energy Marketing , ARB No. 13-051, ALJ Nos. 2012-STA-46, 2012-TSC-1 (ARB May 27, 2015), the ARB � although affirming the ALJ's dismissal of an STAA claim � declined to endorse the ALJ's ruling that the Complainant's disclosures to an employee at the Respondent's largest customer and trade partner were not covered because, among other reasons, that employee was not the Complainant's employer or supervisor. The ARB stated: "However, given the requisite broad construction of remedial whistleblower law, we do not rule out entertaining protection for disclosures to third-party non-employers under certain circumstances. Cf. Stone & Webster Eng�g Corp. v. Herman , 115 F.3d 1568, 1575 (11th Cir. 1997) (ERA may protect expression of safety related concern to co-worker when viewed in context: �The important question, however, is . . . whether he was acting in furtherance of safety compliance when he spoke to the co-workers.�)."

[Nuclear and Environmental Digest XII C 4]
[Nuclear and Environmental Digest XII D 13]
PROTECTED ACTIVITY; LACK OF SUBJECTIVELY OR OBJECTIVELY REASONABLE BELIEF THAT SHUTTING DOWN AN EVAPORATOR WAS TAKEN PURSUANT TO COMPLAINANT�S EMPLOYMENT AUTHORITY OR OTHERWISE WITHIN THE RIGHTS AFFORDED BY THE SWDA

In Lee v. Parker-Hannifin Corp. , ARB No. 14-018, ALJ No. 2009-SWD-3 (ARB May 22, 2015), the ARB summarily affirmed the ALJ's decision finding that the Complainant's conduct in shutting down an evaporator used to reclaim precious metals from hazardous electroplating wastewater was not protected by the whistleblower protection provisions of the Solid Waste Disposal Act. The Complainant was the Respondent's Environmental Health and Safety Coordinator/Facilities Lead at the facility. A state agency had notified the Respondent of concerns regarding the evaporators, and the Complainant was tasked with complying information needed to respond. The Complainant and a manager met with a consulting firm to analyze wastewater and to produce a report. Before the Respondent had finished its investigation, and after being told that he did not have the authority to shut the evaporator at issue down, the Complainant shut down the evaporator and padlocked it to prevent access. The Respondent suspended the Complainant for this action and later terminated his employment. The ARB found that substantial evidence supported the ALJ's "essential factual findings and his ultimate conclusion that Lee did not have a subjectively or objectively reasonable belief that his action in shutting down the evaporator and locking it was taken pursuant to his employment authority, or otherwise within the rights the SWDA affords employees." USDOL/OALJ Reporter at 3. One member of the ARB panel wrote a concurring opinion stating that in his view "the majority does not provide sufficient statutory textual analysis in support of this added burden to prove �employment authority.�" Id . at 4. This member would have affirmed on the basis that the ALJ implicitly rejected protected activity as a motivating factor, having found that the Respondent focused on the insubordinate nature of the Complainant's conduct and was not motivated by the Complainant's efforts to enforce compliance with the SWDA.

[Nuclear and Environmental Digest VIII B 3]
INTERLOCUTORY APPEAL; WHERE THERE WERE SEVERAL COMPLAINTS BEFORE THE ALJ, AND THE ALJ ISSUED A DECISION DISMISSING SOME OF THE COMPLAINTS BUT RESERVING SOME MATTERS FOR FURTHER ADJUDICATION, APPEAL TO ARB WAS INTERLOCUTORY DESPITE ALJ�S INCLUSION OF NOTICE OF APPEAL RIGHTS ON DECISION AND ORDER

In Erickson v. U.S. Environmental Protection Agency , ARB Nos. 15-026, -049, ALJ Nos. 2004-CAA-7, -11, 2005-CAA-10, -12, -15, 2006-CER-3, 2007-CER-2 (ARB May 12, 2015), both the Complainant and the Respondent filed interlocutory appeals of an ALJ's decision and order that rendered a final decision as to several of the Complainant's complaints, but left for further adjudication the first complaint and a collective allegation of a hostile work environment. The ALJ had included a notice of appeal rights on the decision and order. The ARB issued an order to show cause why the Board should not dismiss their interlocutory appeals without prejudice to refile them, if necessary, at the conclusion of the litigation. The Respondent conceded that its appeal was protective only and did not meet the Board's requirements for interlocutory review. The Complainant conceded that her appeal was interlocutory, but asked the ARB to make a final decision on an issue on which she prevailed before the ALJ. The ARB stated that "[a]s an administrative appellate body, the ARB may only properly consider that issue if the losing party appeals it." USDOL/OALJ Reporter at 4. One member of the panel filed a concurring opinion, clarifying that— despite purporting to render a final decision with regard to several consolidated complaint, and notifying the parties of their right to appeal—and the ALJ's indication that she had bifurcated the complaints—"[i]n the instant appeal, the challenge to the ALJ's dismissal of Erickson's six complaints will not result in a final determination of any claim of right separable from, and thus collateral to, rights asserted as part of Erickson's underlying complaints. Nor does the ALJ decision otherwise meet the requirements of the Cohen �collateral order� exception that would warrant adjudication of the appeal at this time and in the absence of a complete and final resolution of Erickson's claims." USDOL/OALJ Reporter at 6.

TIMELINESS OF AIR21 COMPLAINT; EQUITABLE TOLLING; FILING IN WRONG FORUM NOT ESTABLISHED BY FILING OF FOIA REQUEST SEEKING INFORMATION ON HOW TO FILE A COMPLAINT; IGNORANCE OF THE LAW IS NOT A SUFFICIENT BASIS FOR EQUITABLE TOLLING

TIMELINESS OF AIR21 COMPLAINT; EQUITABLE TOLLING; FILING IN WRONG FORUM; FAILURE TO PRODUCE EARLIER COMPLAINT OR DECLARATION DESCRIBING THAT COMPLAINT SUPPORTS AN ADVERSE INFERENCE THAT THE EARLIER COMPLAINT DID NOT CONSTITUTE AN AIR21 COMPLAINT

In McAllister v. Lee County Board of County Commissioners , ARB No. 15-011, ALJ No. 2013-AIR-8 (ARB May 6, 2015), the Complainant did not timely file his AIR21 complaint with OSHA, but made reference to an earlier complaint filed with the FAA. The ALJ ordered the Complainant to submit a copy of that earlier complaint, or, if he did not have a copy of that complaint, to submit a declaration or affidavit describing the complaint in detail, and specifying the date on which he filed the whistleblower complaint and the date on which he learned that the complaint should have been filed with OSHA. In response, the Complainant argued that he was entitled to equitable tolling based on a FOIA request and an online complaint both filed with the FAA the same date. The ALJ found that the FOIA request was not an AIR21 complaint because it was explicitly styled as a FOIA request and not as a complaint of retaliation; the Complainant stated only that he "will be seeking" whistleblower protection; the Complainant stated that he was seeking information on how to report relation; the FOIA request was filed with the FAA's FOIA coordinator who was not charged with responsibility for whistleblower complaints; and the recitation of alleged retaliatory acts in the FOIA request was not a complaint of retaliation, but a request for background information to support a future claim of retaliation. The Complainant did not produce a copy of an online complaint filed with the FAA, and only stated that filed such a complaint. He did not describe any specifics of the complaint. The ARB affirmed the ALJ's finding that the Complainant failed to establish that he was entitled to equitable tolling of the limitations period for filing the AIR21 complaint with OSHA. Specifically, the ARB found that the Complainant's appellate brief failed to establish a genuine issue as to a material fact relevant to the question whether he filed an AIR complaint in the wrong forum. The ARB stated:

In essence, McAllister is relying on an ignorance of the law defense and lack of prejudice to Respondent. However, the Board has held that ignorance of the law is not a sufficient basis for granting equitable tolling and that prejudice to the opposing party will only be considered, once the party has established a factor supporting tolling and that it is not by itself an independent ground establishing entitlement to equitable tolling. Further the fact that McAllister failed to submit a copy of the alleged complaint or a detailed description of it, as the ALJ ordered him to do, could support an adverse inference that the complaint did not meet the qualifications for an AIR 21 retaliation complaint.

USDOL/OALJ Reporter at 7 (footnotes omitted).