May 2019
Wright v. Railroad Commission of Texas, ARB No. 2019-0011, ALJ No. 2015-SDW-00001 (ARB May 22, 2019) (per curiam) (Final Decision and Order)
Casenote(s):USDOL/OALJ Reporter
MOTIVATING FACTOR CAUSATION; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING THAT COMPLAINANT WAS FIRED BECAUSE OF A REFUSAL TO FOLLOW INSTRUCTIONS, A REFUSAL TO WORK WITH OPERATORS, AND CONDUCT MAKING APPLICATIONS WITH RESPONDENT MORE DIFFICULT THAN NECESSARY
In Wright v. Railroad Commission of Texas, ARB No. 2019-0011, ALJ No. 2015-SDW-00001 (ARB May 22, 2019) (per curiam), Complainant alleged that Respondent retaliated against him in violation of the SDWA and FWPCA whistleblower protection provisions because he raised concerns about requiring oil and gas operators to comply with rules regulating drilling wells to protect sources of underground drinking water. The case had been remanded to the ALJ for further consideration. On appeal from the ALJ’s decision on reconsideration, the ARB found that substantial evidence supported the ALJ’s finding that Complainant failed to prove that protected activity caused or was a motivating factor in the adverse action alleged in the complaint.
The SDWA and FWPCA require a complainant to establish by a preponderance of the evidence that the protected activity caused or was a motivating factor in the adverse action alleged in the complaint. Here, the ALJ found the Complainant had a documented history of interpersonal conflicts with both staff and operators. The ALJ found that Complainant demonstrated an unwillingness to work with operators, behavioral problems, inappropriate and unprofessional conduct, and an arrogant, insulting and insolent attitude in working with other people. The ALJ found that Complainant was fired because he refused to follow instructions and created a state of confusion indicative of a refusal to work with operators and of making the application more difficult than necessary.
DeSalvo v. Waterfront Property Services, LLC, ARB No. 2017-0044, ALJ No. 2016-ERA-00008 (ARB May 21, 2019) (Final Decision and Order)
Casenote(s):
[Nuclear & Environmental Digest XI D 3 d]
SUMMARY DECISION ON CLEAR AND CONVINCING EVIDENCE DEFENSE; WHERE RESPONDENT PRESENTS UNCONTRADICTED EVIDENCE THAT IT WOULD HAVE FIRED COMPLAINANT FOR INSUBORDINATION REGARDLESS OF PROTECTED ACTIVITY, SUMMARY DECISION AS A MATTER OF LAW IS WARRANTEDIn DeSalvo v. Waterfront Property Services, LLC, ARB No. 2017-0044, ALJ No. 2016-ERA-00008 (ARB May 21, 2019), Complainant had been hired as a Survey Crew Chief, and on his first day at work, he repeatedly cut off and argued with two company officials as they attempted to explain details of the job duties and the company’s survey process. At one point, Complainant arose from his chair and asked to speak alone with Respondent’s President/CEO. Complainant was told by the President/CEO that the Assistant Operation Engineer must be included in the conversation, and that he must sit down and listen to both officials, or leave the trailer and be terminated. Complainant chose to leave the trailer and was terminated that same day.
The ALJ reviewed the facts outlined in the pleading an attachments in the light most favorable to Complainant and assumed that Complainant engaged in protected activity and that Respondent was aware of it. The ALJ summarily found, however, that Respondent had shown by clear and convincing evidence that it would have taken the same adverse action regardless of the existence of any protected activity. Reviewing the matter de novo, the ARB found Respondent’s evidence uncontradicted, and that Respondent was entitled to summary decision as a matter of law. The ARB pointed out that Respondent submitted affidavits from the two officials who met with Complainant. Those affidavits detailed the relevant sequence of events and were not contradicted by allegations from Complainant. Respondent also submitted a copy of its employee handbook explaining the termination process, which specifically mentioned termination on account of insubordination. Complainant signed this handbook indicating that he received it prior to the meeting with the two officials. The ARB also noted that Respondent submitted evidence that it previously terminated an employee’s employment for insubordination, albeit under different circumstances. The ARB thus held that Respondent “established by clear and convincing evidence that it would have terminated Complainant’s employment for insubordination, irrespective of whether he had engaged in protected activity.”
Leiva v. Union Pacific Railroad Co., ARB No. 2018-0051, ALJ No. 2017-FRS-00036 (ARB May 17, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
BREACH OF SETTLEMENT AGREEMENT; RELEASE OF INFORMATION TO THE PUBLIC LAW BOARD WHEN SUCH INFORMATION SHOULD HAVE BEEN EXPUNGED UNDER THE TERMS OF THE SETTLEMENT AGREEMENT; ARB RULES SUCH BREACH DID NOT CREATE A NEW FRSA CAUSE OF ACTION — RATHER COMPLAINANT’S RELIEF WAS TO FILE A CLAIM FOR BREACH OF CONTRACT OR TO RETURN TO ARBITRATION BEFORE THE PUBLIC LAW BOARD
In Leiva v. Union Pacific Railroad Co., ARB No. 2018-0051, ALJ No. 2017-FRS-00036 (ARB May 17, 2019) (per curiam), Complainant had filed an FRSA complaint in 2012 based on the actions of Respondent in response to Complainant’s confrontation with a coworker. The ALJ found that Respondent violated the FRSA. The ARB affirmed the ALJ’s decision, but remanded for a determination on punitive damages. While on remand, the parties settled the case. The settlement agreement provided that Respondent would expunge from its HR record references to the discipline assessed against Complainant, and would ensure that the facts and circumstances relating to the discipline or exercise of Complainants rights were not used against Complainant in any future disciplinary, employment, or promotional opportunities with Respondent. The agreement provided that, subject to the ALJ’s approval of the settlement, it would constitute the final order under the FRSA and would be enforceable in U.S. District Court. The ALJ approved the settlement and dismissed the complaint.
In 2017, Complainant filed a new FRSA complaint alleging that Respondent engaged in adverse action when it fired him in 2014—and when it advised the Public Law Board in 2016 that Complainant engaged in workplace violence in 2012, which resulted in the Public Law Board’s upholding the 2014 termination. The ALJ found that there had been a continuing violation of the FRSA based on Respondent’s maintenance of records that Complainant engaged in workplace violence is 2012 and the consequent disciplinary history. The ALJ found that the submission of the information to the Public Law Board “was the same unlawful act from 2012” that continued to 2017, when the information was finally expunged.
The ARB reversed, finding that the ALJ erred by treating the case has a new, separate FRSA complaint rather than a continuation of the first FRSA complaint, as all the elements of entitlement were based on the original complaint. The ARB held that there were two other avenues of redress for Complainant.
First, Complainant could file a claim in U.S. District Court for breach of the settlement agreement based on Respondent’s maintaining information in Complainant’s personnel file relating to his disciplinary history and protected activity regarding the confrontation with his coworker.
Second, Complainant could object to the Public Law Board’s reliance on the “workplace violence” notation by returning to arbitration. The ARB also noted that there is a statutory procedure for appealing Public Law Board decisions to U.S. District Court.
The ARB concluded by stating:
While the ALJ reasonably considered Respondent’s failure to expunge the retaliatory information included in Complainant’s personnel file, in violation of the terms of the settlement agreement, to be reprehensible and egregious conduct, the remedy is not the filing of a new FRSA complaint based on the same set of facts. Neither the ALJ nor this Board possess continuing jurisdiction to enforce settlement agreements that have become the final decision of the Secretary. Under such circumstances, Complainant must pursue any remedies in a proper forum in accordance with the terms of the settlement agreement to which he is a party.
Slip op. at 6 (footnotes omitted).
EXPUNGEMENT AS A REMEDY, WHEN AN ALJ FINDS THAT CERTAIN INFORMATION FROM A PERSONNEL RECORD SHOULD NOT BE USED AGAINST COMPLAINANT, “EXPUNGEMENT” MAY NOT BE A REALISTIC REMEDY FOR AN ALJ TO ORDER (OR TO APPROVE AS A TERM IN A SETTLEMENT AGREEMENT) AS BUSINESSES MAY NOT BE ABLE TO LEGALLY DESTROY SUCH RECORDS; INSTEAD ALJ COULD REQUIRE THAT INFORMATION BE SEALED OR PLACED IN RESTRICTED ACCESS, AND TO ORDER RESTRICTIONS ON USE OF SUCH INFORMATION
In Leiva v. Union Pacific Railroad Co., ARB No. 2018-0051, ALJ No. 2017-FRS-00036 (ARB May 17, 2019) (per curiam), Complainant and Respondent had settled a 2012 FRSA complaint. The settlement required Respondent to expunge certain information from Complainant’s HR record, and ensure that the facts and circumstances relating to the discipline or exercise of Complainants rights were not used against Complainant in any future disciplinary, employment, or promotional opportunities. In 2016, however, Respondent provided information that should have been expunged to the Public Law Board, resulting in the Board’s upholding of Complainant’s termination from employment. Complainant filed a new FRSA complaint in 2017. The ARB ruled that this new complaint could not be maintained, but that Complainant’s remedies were to file a breach of contract claim in U.S. district court, or to return to arbitration before the Public Law Board. The ARB also noted that “expungement” is often not a realistic remedy for an ALJ to order. The ARB wrote:
We note that it may be futile to order an employer to “expunge” information which other laws may require the employer to maintain. Because businesses may not be able to legally destroy corporate records, ALJs should be cautious and specific when ordering an employer to “expunge” information from an employee’s personnel record. Where an ALJ finds it necessary to order an employer to disregard certain information which had been placed in an employee’s personnel record, it would be more realistic, for example, for the ALJ to require that the information be placed in a sealed and/or restricted folder or that the employer be specifically prohibited from relying on the information in future personnel actions or referencing it to prospective employers.
Slip op. at 6, n.11.
CONTRIBUTORY FACTOR CAUSATION; LACK OF KNOWLEDGE OF OFFICIALS THAT CERTAIN INFORMATION FROM COMPLAINANT’S PERSONNNEL FILE SHOULD HAVE BEEN EXPUNGED BASED ON PRIOR PROTECTED ACTIVITY; WHERE ALJ FOUND SUCH OFFICIALS’ TESTIMONY TO BE CREDIBLE, ALJ ERRED IN FINDING CAUSATION BASED ON ORIGINAL DECISION-MAKER’S PLACEMENT OF INFORMATION IN FILE AND FAILURE TO EXPUNGE; ARB FINDS THAT WITHOUT KNOWLEDGE OF THE PROTECTED ACTIVITY, THE LATER DECISION-MAKERS’ PROVISION OF THE INFORMATION TO THE PUBLIC LAW BOARD COULD NOT HAVE CONTRIBUTED TO THEIR DECISION TO RELEASE THE INFORMATION
In Leiva v. Union Pacific Railroad Co., ARB No. 2018-0051, ALJ No. 2017-FRS-00036 (ARB May 17, 2019) (per curiam), Complainant and Respondent had settled a 2012 FRSA complaint that had been based on the actions of Respondent in response to Complainant’s confrontation with a coworker. The settlement required Respondent to expunge certain information from Complainant’s HR record, and ensure that the facts and circumstances relating to the discipline or exercise of Complainants rights were not used against Complainant in any future disciplinary, employment, or promotional opportunities. In 2016, however, Respondent provided information that should have been expunged to the Public Law Board, resulting in the Board’s upholding of Complainant’s termination from employment. Complainant filed a new FRSA complaint in 2017. The ALJ found that there had been a continuing violation of the FRSA based on Respondent’s maintenance of records that Complainant engaged in workplace violence in 2012 and the consequent disciplinary history. The ALJ found that the submission of the information to the Public Law Board “was the same unlawful act from 2012” that continued to 2017, when the information was finally expunged. As to contributory factor causation, the ALJ found that regardless of Respondent’s ignorance about the protected activity when the information was provided to the Public Law Board, the original decision-makers in the first FRSA case knew about the protected activity when it placed the information in the personnel file where it remained as a continuing violation.
The ARB reversed, ruling that this new complaint could not be maintained, but that Complainant’s remedies were to file a breach of contract claim in U.S. district court, or to return to arbitration before the Public Law Board. In a footnote, the ARB provided an alternative ruling on the issue of causation, and specifically the lack of knowledge of Complainant’s 2012 protected activity by the officials who provided the information that should have been expunged to the Public Law Board. The ARB wrote:
Even if we were somehow able to entertain Complainant’s complaint, dismissal of the complaint would still be appropriate. The ALJ found that the Respondent’s decision-makers who submitted the “workplace violence” information to the Public Law Board had no knowledge about Complainant’s protected activity. Specifically, the ALJ summarized the Respondent’s decision-makers’ … testimony indicating that each had stated that they had no knowledge about Complainant’s protected activity. . . . The ALJ found each of these witnesses to be “sincere, unbiased, and credible” and their demeanors to be persuasive. . . . But the ALJ found causation despite this and “regardless of Respondent’s ignorance,” because there was causation in Case #1 when the protected activity and discipline information was placed in Complainant’s personnel file. This was error because if the decision-makers did not know about Complainant’s protected activity and discipline, it could not have contributed to their decision to use the information. This finding would necessitate dismissal because, with a “no knowledge” finding, there can be no legally sufficient causation.
Slip op. at 6, n.12 (citations to ALJ’s decision omitted).
Ford v. Zebra Carriers, Inc., ARB No. 2018-0057, ALJ No. 2016-STA-00062 (ARB May 13, 2019) (Order Dismissing Case)
Casenote(s):
The ARB dismissed the Complainant's petition for review based on his failure to file an opening brief, despite being earlier granted an extension and having been warned that the appeal could be dismissed for failure to comply with the ARB's orders and briefing requirements.
Taft v. Fort Worth & Western R.R., ARB No. 2019-0031, ALJ No. 2019-FDA-00002 (ARB May 13, 2019) (Order Dismissing Petition for Review)
[Editor's note: The ARB issued an errata and reissued the decision to correct an error in the caption: the Respondent was Paramount Coffee Co. rather than Fort Worth & Western R.R. See Taft v. Paramount Coffee Co., ARB No. 2019-0031, ALJ No. 2019-FDA-00002 (ARB May 13, 2019, reissued with errata correcting caption June 25, 2019)]
Casenote(s):In Taft v. Forth Worth & Western R.R., ARB No. 2019-0031, ALJ No. 2019-FDA-00002 (ARB May 13, 2019), the ALJ had dismissed the administrative complaint because the Complainant had filed a civil suit in U.S. district court. The ARB had extended the point in time at which the ALJ's decision would become final because the Complainant had presented a Magistrate Judge's Report and Recommendation recommending dismissal of the civil suit because it was not ripe. The ARB extended the time period to 14 days after the district court rendered a decision on the Magistrate's recommendation. The district court rejected the the Magistrate's report and recommendation, and allowed the federal lawsuit to proceed. In view of this resolution, the ARB found that the administrative complaint could be dismissed.
See Taft v. Paramount Coffee Co., No. 1:19-cv-35 (W.D. Mich. May 3, 2019) (2019 U.S. Dist. LEXIS 74933) (Plaintiff presented documentation to the district court showing that the Magistrate had been mistaken about the length of time the matter had been pending before DOL).
Jacobs v. Liberty Logistics, Inc., ARB No. 2017-0080, ALJ No. 2016-STA-00007 (ARB May 9, 2019) (reissuance with errata) (per curiam) (Final Decision and Order)
Casenote(s):
On May 9, 2019, the ARB corrected an error in the April 30, 2019 Final Decision and Order. See the April 2019 ARB casenotes for a summary of the ruling.
Alta Waterproofing, ARB No. 2018-0054 (ARB May 7, 2019) (Order of Dismissal)
Casenote(s):
The ARB dismissed the appeal for failure to prosecute.
Butler v. Neier, Inc., ARB No. 2017-0027, ALJ NO. 2014-STA-00068 (ARB May 7, 2019) (per curiam) (Order Affirming Award of Attorney's Fees)
Casenote(s):
CONTENTION THAT ALJ'S DECISION ON FEES AND COSTS WAS PREMATURE FOUND MOOT WHERE ARB LATER AFFIRMED ALJ'S DECISION ON THE MERITS AND THE COURT OF APPEALS APPEAL WAS VOLUNTARILY DISMISSED ON JOINT STIPULATION
In Butler v. Neier, Inc., ARB No. 2017-0027, ALJ NO. 2014-STA-00068 (ARB May 7, 2019) (per curiam), the Respondent argued that the ALJ's decision awarding attorney's fees, costs and expenses to the Complainant was premature because the ALJ issued the fees and costs decision prior to the ARB's consideration of the ALJ's earlier decision on the merits. The ARB thereafter issued a decision affirming the ALJ's decision on the merits finding that the Respondent violated the STAA whistleblower provision, and the appeal before the Seventh Circuit Court of appeals was voluntarily dismissed based on a joint stipulation. The ARB found that "[t]he fact that Complainant has ultimately been successful before the ARB and the Court of Appeals renders moot Neier's argument that the fee award must be reversed as premature. Because the Respondent had not challenged the amount or substance of the fee award, the ARB affirmed it as reasonable.
Griffo v. Book Dog Books, LLC, ARB No. 2018-0029, ALJ No. 2016-SOX-00041 (ARB May 2, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
COVERED EMPLOYER; MEANING OF “CONTRACTORS” UNDER § 1514A; ARB AGREES WITH COURTS THAT HAVE HELD THAT AN EMPLOYEE CANNOT INVOKE SOX PROTECTION SIMPLY BECAUSE HIS EMPLOYER IS A PARTY TO A CONTRACT WITH A PUBLICLY TRADED COMPANY; RATHER A “CONTRACTOR” MUST ACTUALLY PERFORM A SERVICE FOR A PUBLICLY TRADED COMPANY; MERELY BEING A CUSTOMER OF A PUBLICLY TRADED COMPANY IS NOT SUFFICIENT
In Griffo v. Book Dog Books, LLC, ARB No. 2018-0029, ALJ No. 2016-SOX-00041 (ARB May 2, 2019), the Respondents were not publicly traded companies. Their business was the purchase, rental and sale of text books. One of the means of selling books was through Amazon.com. Amazon had a contractual right to purchase shares of Book Dog Books. The Respondents had established a line a credit through PNC bank. Both Amazon and PNC bank were publicly traded companies. The Complainant was the Chief Financial Officer of Book Dog Books; he complained to various entities, including PNC, about financial and inventory inconsistences at Book Dog Books. The Complainant did not allege that he performed contractual services for PNC, Amazon or any other entity with which the Respondents had a contract. The Complainant was discharged, and he filed a SOX complaint. The ALJ granted summary decision finding that the Respondents were not covered employers under SOX, citing Gibney v. Evolution Marketing Research, LLC, 25 F.Supp. 3d 741 (E.D. Pa. 2014), a decision in which the court had provided a persuasive analysis of the U.S. Supreme Court’s decision in Lawson v. FMR, LLC, 571 U.S. 429 (2014), in regard to the question of which relationships are of a nature with would cause them to be covered “contractors” under SOX. The ARB affirmed, writing:
While the SOX does not contain a definition of the word “contractor” applicable to § 1514A, other courts have considered the term in this context after the decisions in Lawson and Gibney were issued. We agree with those courts that an employee cannot invoke SOX protection simply because his employer is a party to a contract with a publicly traded company. We hold that, at a minimum, a “contractor” under § 1514A must actually perform a service for a publicly traded company.
On the facts of this case, the Respondents were customers of both Amazon and PNC, but the record below does not establish that the Respondents performed any service for either Amazon or PNC. The Respondents assert that Book Dog Books “is a simple customer of PNC Bank under a line of credit PNC has issued Book Dog. ” Complainant does not rebut this assertion.
Likewise, Respondent Book Dog Books sold books through Amazon, but Complainant’s response to the Motion for Summary Decision does not allege facts or provide evidence to show that Book Dog Books provided any service to Amazon. Assuming Complainant’s accusation that the Respondents intended to commit fraud against Amazon is correct, a contractor’s actions can be “too far removed from potentially harming the shareholders of a publicly traded company to be covered under § 1514A. ” Such was the case here.
Slip op. at 6-7 (footnotes omitted) (emphasis in original). As to the Complainant’s not alleging facts or providing evidence that Book Dog Books provided any service to Amazon, the ARB further explained:
Complainant’s failure to do so means that the issues Lawson raised are not reached. The Respondents cannot be “contractors” within the meaning of § 1514A unless there is some showing that they provided services as a contractor to Amazon and PNC beyond being their customer. Virtually every business contracts for, as examples, cell phone and computer services, insurance, vehicle and equipment rentals, banking and financial services, real estate, employee health and retirement benefits, and advertising, and these business relationships may be with covered publically traded companies under the SOX. But there is no basis for presuming that the term “contractor” under §1514A of the SOX embraces all of these generic business activities merely because a contract may govern the rights of the parties.
Id. at 7 n. 15.