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

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Summary :

COVERED EMPLOYER/EMPLOYEE; RESIDENTS OF FOREIGN COUNTRIES EMPLOYED BY FOREIGN COMPANIES OPERATING IN THOSE COUNTRIES

In Ahluwalia v. ABB, Inc. , ARB No. 08-008, ALJ No. 2007-SOX-44 (ARB June 30, 2009), the Complainant was a citizen of the United Kingdom who was employed in Abu Dhabi, United Arab Emirates, by a company formed under the laws of the UAE, and which was a subsidiary of a Swiss holding company whose principal place of business was in Zurich, Switzerland. The Complainant claimed that the employee protection provision of the SOX prohibits retaliation anywhere in the world that affects reports made to the SEC. The ALJ dismissed, inter alia, on the ground that SOX's employee protections did not apply to the Complainant because he was employed in a foreign country by a foreign company.

On appeal the ARB found that the complaint was controlled by its decision in Ede v. The Swatch Group , ARB No. 05-053, ALJ Nos. 2004-SOX-068, -069 (ARB June 27, 2007), in which the ARB held that Section 806 does not protect residents of foreign countries employed by foreign companies operating in those countries. The ARB further held that even if the Complainant had reported fraud committed by the Respondents to the SEC, such reporting does not defeat the jurisdictional restrictions.

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Summary :

Approval of settlement agreement

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[Nuclear and Environmental Digest XVI E 2]
ATTORNEY FEE AWARD NEED NOT BE PROPORTIONAL TO THE RECOVERY FOR THE COMPLAINANT

In Collins v. The Village of Lynchburg, Ohio , ARB No. 09-040, ALJ No. 2006-SDW-3 (ARB June 30, 2009), the Respondent argued that an attorney fee award of nearly $70,000 was clearly excessive in comparison to the actual loss to the Complainant, who had been reinstated during the pendancy of the complaint. The ARB held that "[l]ike the ALJ, we find that the fee in this whistleblower case need not be proportional to the recovery for the Complainant." USDOL/OALJ Reporter at 3 (footnote omitted).

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COVERAGE; INDIRECT PROVISION OF AIR CARRIER SERVICES; HOSPITAL THAT OWNED HELICOPTERS, BUT CONTRACTED FOR PILOTS

In Evans v. Miami Valley Hospital , ARB Nos. 07-118, -121, ALJ No. 2006-AIR-22 (ARB June 30, 2009), the Miami Valley Hospital (MVH) owned three helicopters and provided an air ambulance service called CareFlight. MVH contracted with CJ Systems to furnish pilots and mechanics. The Complainant was a helicopter pilot. MVH argued that it was not an air carrier under the AIR21 definition because it did not directly employ pilots or have an aviation certificate. The ARB found that those circumstances were not determinative, because neither the statute nor the regulations require that an air carrier hire pilots to be covered, and because an FAA certificate is not a requirement for coverage. Rather, the ARB found substantial evidence to establish that MVH indirectly provided air carrier services, which made it an air carrier within the meaning of AIR21.

LIABILITY OF EMPLOYER OTHER THAN COMPLAINANT'S IMMEDIATE EMPLOYER; HOSPITAL THAT CONTRACTED FOR PILOTS FOR ITS AIR AMBULANCE SERVICE AND EXERCISED CONTROL OVER THE TERMS AND CONDITIONS OF THE COMPLAINANT'S EMPLOYMENT

In Evans v. Miami Valley Hospital , ARB Nos. 07-118, -121, ALJ No. 2006-AIR-22 (ARB June 30, 2009), the Miami Valley Hospital (MVH) owned three helicopters and provided an air ambulance service called CareFlight. MVH contracted with CJ Systems to furnish pilots and mechanics. In determining whether MVH was liable for the Complainant's termination, the ARB recited caselaw to the effect that an employer alleged to have violated AIR 21 need not be the complainant-employee's immediate employer, but may be liable if it exercised control over the terms, conditions, or privileges of the complainant's employment.

MVH argued that the Complainant was not one of its employees and that it had no control over the Complainant's employment or termination. The ARB, however, closely reviewed the record and found that MVH exercised significant control over and directly influenced the terms and conditions of the Complainant's employment. For example, MVH's program manager for CareFlight interviewed the Complainant before he was hired, was "very involved" with how mechanics and pilots conducted business, and participated in the discipline of the Complainant.

CLEAR AND CONVINCING EVIDENCE; WHERE REASONS FOR FIRING WERE PRETEXTUAL, EMPLOYER FOUND NOT TO HAVE MET CLEAR AND CONVINCING EVIDENCE STANDARD

In Evans v. Miami Valley Hospital , ARB Nos. 07-118, -121, ALJ No. 2006-AIR-22 (ARB June 30, 2009), the ARB concluded that where substantial evidence supported the ALJ's finding that the reasons given by the Respondents for firing the Complainant were pretext, the Respondents therefore did not prove by clear and convincing evidence that they would have fired the Complainant absent his protected activity.

COMPENSATORY DAMAGES AWARD FOR NON-ECONOMIC DAMAGES; DETERMINATION IS A SUBJECTIVE ONE, BASED ON THE FACTS AND CIRCUMSTANCES OF EACH CLAIM; SUPPORTING MEDICAL EVIDENCE IS NOT ESSENTIAL WHERE TESTIMONY OF COMPLAINANT IS CREDIBLE AND UNREFUTED

In Evans v. Miami Valley Hospital , ARB Nos. 07-118, -121, ALJ No. 2006-AIR-22 (ARB June 30, 2009), the ARB found that the ALJ properly found that the caselaw governing non-economic damages provides t hat a determination on such damages is a subjective one, based on the facts and circumstances of each claim. Thus, the ARB affirmed the ALJ's award of $100,000.00 in compensatory, non-economic damages where, even though the Complainant's testimony was not supported by medical evidence, it was unrefuted and corroborated by his wife, both of whom were found to credible witnesses by the ALJ. The ARB found that the record supported the ALJ's finding that the termination of the Complainant's employment caused emotional harm and damage to his reputation.

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Summary :

COVERED EMPLOYER/EMPLOYEE; RESIDENTS OF FOREIGN COUNTRIES EMPLOYED BY FOREIGN COMPANIES OPERATING IN THOSE COUNTRIES

In Pik v. Goldman Sachs Group, Inc. , ARB No. 08-062, ALJ No. 2007-SOX-92 (ARB June 30, 2009), the Complainant was a citizen of the Czech Republic who was employed in London, England by Goldman Sachs Services Limited (GSSL), a company registered in the British Virgin Islands. GSSL was a subsidiary of the Respondents. The ALJ dismissed the complaint on the ground that the SOX's employee protections did not apply because the Complainant worked in the Respondent's London office, and all of the alleged adverse employment actions took place in London.

On appeal the ARB found that the complaint was controlled by its decision in Ede v. The Swatch Group , ARB No. 05-053, ALJ Nos. 2004-SOX-068, -069 (ARB June 27, 2007), in which the ARB held that Section 806 does not protect residents of foreign countries employed by foreign companies operating in those countries. The Complainant argued that the ALJ had jurisdiction over his claim because he should have been transferred to the Respondents' New York office prior to his discharge. The ARB rejected the argument because the transfer had not happened, and because the Complainant had not explained what effect the transfer would have had on the jurisdictional issue.

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Dismissal based on Complainant's withdrawal of objections to OSHA findings

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Dismissal based on failure to prosecute/abandonment

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Dismissal based on Complainant's withdrawal of objections to OSHA findings

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PROTECTED ACTIVITY; WORK REFUSAL BASED ON REASONABLE AND GOOD FAITH BELIEF THAT THE WORK WOULD VIOLATE A FEDERAL PIPELINE SAFETY LAW LOOSES PROTECTED STATUS ONCE RESPONDENT INVESTIGATES AND A SOLUTION IS COMMUNICATED TO COMPLAINANT

Under the whistleblower provision of the Pipeline Safety Improvement Act, an employee who refuses to perform a task because of a pipeline safety concern is not required to establish that the allegedly illegal practice at issue actually violated a Federal law relating to pipeline safety. Rather the employee is only required to prove that his refusal to work was properly communicated to the employer and was based on a reasonable and good faith belief that the work would violate a Federal law relating to pipeline safety. The work refusal, however, loses its protected status after the perceived hazard has been investigated and, if found safe, is adequately explained to the employee. Rocha v. AHR Utility Corp. , ARB No. 07-112, ALJ Nos. 2006-PSI-1 through 4 (ARB June 25, 2009). In Rocha , the ARB found that substantial evidence supported the ALJ's findings that the Respondents and the state officials took the Complainants' concerns about whether corroded pipes could be welded with sufficient quality to safely carry natural gas "very seriously" and investigated to determine whether the pipe was acceptable. The ALJ found that a solution was presented to the Complainants that allowed them to cut and grind the pipes to achieve field quality welds. The ARB agreed with the ALJ's conclusion that, when the Complainants refused to weld after the Respondents offered this solution and did not question the proposed solution, their work refusal lost its protected status.

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Summary :

Approval of settlement agreement

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In Hoffman v. NetJets Aviation, Inc. , ARB No. 06-141, ALJ No. 2005-AIR-26 (ARB June 16, 2009), the ARB reconsidered its earlier decision because of the existence of audio tapes it had not previously reviewed. The ARB affirmed its prior decision in all respects.

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Summary :

[STAA DIGEST III J]
HEARSAY INADMISSIBLE IN STAA HEARINGS; ALJ DID NOT ABUSE HER DISCRETION IN ADMITTING DOT ENFORCEMENT REPORTS AND COMPLIANCE REVIEWS FOR THE PURPOSE OF ESTABLISHING RESPONDENT'S KNOWLEDGE OF DOT REGULATIONS

In Ass't Sec'y & Mailloux v. R & B Transportation, LLC , ARB No. 07-084, ALJ No. 2006-STA-12 (ARB June 16, 2009), the ALJ found that the Respondent violated the whistleblower provision of the STAA when it fired the Complainant after the Complainant informed the Respondent's owner that he could not complete his next assigned delivery without exceeding the maximum allowable driving hours prescribed by DOT regulations. In making her determination, the ALJ relied, in part, on DOT enforcement reports and compliance reviews indicating that the Respondent and other trucking companies with which the owner was affiliated had been cited for violations of the hours of service regulations before, during, and after the Complainant's employment with the Respondent. On appeal, the Respondent contended that the DOT enforcement reports and compliance reviews constituted inadmissible hearsay and character evidence.

The ARB noted that the STAA regulations specify that hearings will be conducted in accordance with the Rules of Practice and Procedure for Administrative Hearings, and that under those rules, hearsay evidence is inadmissible. The ARB found that the ALJ did not admit the DOT enforcement reports and compliance reviews indicating past or other violations to show that the Respondent violated the hours of service regulations in this case, but rather considered them only to the extent that they reflected the Respondent's knowledge of its obligations pursuant to the hours of service regulations. Thus, the ARB held that the ALJ did not abuse her discretion in admitting the DOT enforcement reports and compliance reviews.

The Respondent had also argued that the DOT enforcement reports and compliance reviews were not reliable indicators of actual violations. The ARB, however, found that the evidence also indicated that the Respondent paid penalties that the DOT imposed for violations of the regulations, and the terms of the payments specifically indicated that the payments constituted admission of the violation.

[ Editor's note : The STAA is unique among DOL's whistleblower regulations in making a blanket reference to the OALJ Rules of Practice and Procedure at 29 C.F.R. Part 18. The other whistleblower regulations refer only to Subpart A of 29 C.F.R. Part 18. See 29 C.F.R. §§ 24.107(a), 1979.107(a), 1980.107(a) , 1981.107(a). The hearsay rule is in Subpart B. In non-STAA hearings, the Secretary has held that hearsay is not inadmissible in administrative proceedings merely because it is hearsay. Pogue v. United States Dept. of the Navy, 1987-ERA-21, slip op. at 24 n.16 (Sec'y May 10, 1990), rev'd on other grounds , Pogue v. United States Dept. of Labor, 940 F.2d 1287 (9th Cir. 1987).]

[STAA Whistleblower Digest IX A]
REINSTATEMENT MUST BE AWARDED EVEN WHERE THE COMPLAINANT HAS ALREADY FOUND NEW EMPLOYMENT; HOWEVER, WHERE NEITHER PARTY APPEALS A FAILURE BY THE ALJ TO AWARD REINSTATMENT, THE ISSUE IS DEEMED WAIVED

In Ass't Sec'y & Mailloux v. R & B Transportation, LLC , ARB No. 07-084, ALJ No. 2006-STA-12 (ARB June 16, 2009), the ALJ found that the Respondent violated the whistleblower provision of the STAA, and awarded the Complainant back pay through the date he found a new job, and litigation costs. The ARB observed that reinstatement is an automatic remedy under the STAA, and that the ALJ erred in not awarding it (evidently because the Complainant had found new employment). The ARB, however, deemed the issue of reinstatement waived because neither party raised the issue on appeal.

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Summary :

Approval of settlement agreement

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