USDOL/OALJ Reporter: ARB Decision Caselist - June 2015

IN ADDING A NEW CONFORMING JOB CLASSIFICATION, ADMINISTRATOR SHOULD HAVE REVIEWED AND COMPARED WAGE RATES OF NUMBERS OF UNION VS. NON-UNION CLASSIFICATIONS

In Mack Strickland , ARB No. 13-088 (ARB June 30, 2015), the Petitioner filed a petition for review of final determination of Administrator with regard to approval of conformance requests to add insulator job classification at rate of $13.00 per hour. ARB affirmed in part, and vacated in part, and remanded, with a concurrence by Member Brown that without withholding of wages to contractor by Agency and notice to interested contractor parties, Complainant and nonparty contractors were denied due process and Complainant was denied a remedy. ARB found that the proposed wage rate of $13.00 per hour for the insulator skilled classification bears a reasonable relationship to the rage wage rates but is inconsistent with the applicable guidelines because the review consisted of the number of union vs. non-union job "classifications" determinative of the rates but not the actual number of union versus non-union "wage rates" contained in the wage determination. Applying the latter would have resulted in a proposed wage rate of between $16 for a drywall hangar and $27.47 including fringe benefits for a carpenter.

EXEMPT EXECUTIVE EMPLOYEES UNDER THE SCA; FAILURE TO ESTABLISH EMPLOYEES' ABILITY TO HIRE OR FIRE OR TO INFLUENCE DECISIONS ABOUT HIRING AND FIRING

In Administrator, Wage and Hour Div., USDOL v. 5 Star Forestry, LLC , ARB No. 14-021, ALJ No. 2013-SCA-4 (ARB June 24, 2015), the Respondents argued that the ALJ erred in finding that two employees were covered by the Service Contract Act because they were not employed in a bona fide executive capacity and therefore did not qualify as exempt "executive" employees under 29 C.F.R. § 4.156 and 541.100(a). The ARB noted that the SCA and its implementing regulations incorporate the FLSA regulation at 29 C.F.R. § 541.100, which establishes a four-factor test for determining executive employees, each of which must be met for an employee to be exempt. In the instant case, the ARB affirmed the ALJ's determination on Factor Four, which dictates that an exempt employee must have: "the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight." 29 C.F.R. § 541.100. The Respondents argued that the two employees at issue were foremen in the field, whose recommendations on employees carried particular weight. The ARB noted that the courts require more than formal input, and that the Respondents had several means by which they could have shown that the employees influenced hiring and firing decisions, the regulation at 29 C.F.R. § 541.105 listing factors that aid in the determination. The ARB noted that the Respondents "did not provide job descriptions that listed the ability to hire or fire or influence the hiring or firing of others," and "did not offer evidence of specific instances when the employer consulted the employees about hiring or firing or gave their input 'particular weight.'" USDOL/OALJ Reporter at 7. The ARB thus affirmed the ALJ's determination that the Respondents failed to establish that the employees were executives exempt from SCA coverage and the requirement to pay the fringe benefits to which the ALJ held they were entitled.

SCA DEBARMENT RUNS FROM DATE OF PUBLICATION OF VIOLATOR'S NAME ON THE DEBARMENT LIST RATHER THAN FROM DATE OF ALJ'S ORDER

In Administrator, Wage and Hour Div., USDOL v. 5 Star Forestry, LLC , ARB No. 14-021, ALJ No. 2013-SCA-4 (ARB June 24, 2015), the Respondents, joined by the Administrator, argued that the ALJ erred by ordering debarment effective from the date of the ALJ's 1st Amended D. & O., rather than from the date of publication by the Comptroller General of their names of the debarment list. The ARB agreed that the SCA, 41 U.S.C.A. 6706, expressly provides that the debarment period runs from the date of publication of the violator's name on the debarment list, and that the ALJ "exceeded his authority in ordering the debarment period in this case to begin on the date of his Order." USDOL/OALJ Reporter at 8.

Order granting approval of stipulation regarding Complainant's attorney fees and costs.

SCOPE OF ARB REVIEW; WHERE WHD ADMINISTRATOR WITHDREW CITATION FOR FAILURE TO NOTIFY SWA OF DISCHARGE OF H-2A EMPLOYEE UNDER TIMING CRITERIA OF AN ETA GUIDANCE LETTER, BUT ASKED THE ARB TO GRANT SUMMARY DECISION ON ALTERNATIVE BASIS NOT RULED ON BY ALJ, THE ARB REMANDED TO THE ALJ FOR FURTHER PROCEEDINGS

In John Peroulis & Sons Sheep, Inc. , ARB No. 13-083, ALJ No. 2012-TAE-6 (ARB June 16, 2015), the Respondents, who own and operate a sheep ranch, entered a work contract under the H-2A temporary agricultural worker program. The Respondents terminated the worker's employment based on the belief that the worker had illegally killed an elk. The WHD determined that the company violated 20 C.F.R. § 655.102(b)(5), and (b)(6) by discharging the worker without good cause and then failing to provide required wages and transportation reimbursements to the worker. The ALJ granted summary decision, holding that even if the Respondents had good cause for terminating the employment, they failed to notify the State Workforce Agency in writing within two business days as required by a 2007 ETA Guidance Letter. On appeal, the WHD Administrator advised the ARB of WHD Field Assistance Bulletin No. 2012-01 (Feb. 28, 2012), under which WHD no longer seeks the wages for such notice violations and no CMPs for a first-time violation. The Administrator advised that the WHD decided not to apply the ETA Guidance Letter to this case, and requested that the ARB affirm the ALJ's decision on grounds that the Respondents did not have good cause to discharge the H-2A employment because he had not violated any law, and even if they had committed a violation, it was not of a severe or emergency nature. The ARB declined, finding that the ALJ had not ruled on the alternative grounds now urged by the Administrator, and that the record supported the ALJ's finding in ruling on summary decision that there were issues of material fact and mixed fact and law precluding summary decision on whether the Respondents had good cause for the discharge. The ARB thus remanded for the ALJ to consider on summary decision whether the Respondents had provided two written warnings prior to termination, or, following an evidentiary hearing, whether Respondents had acted with good cause.

CLEAR AND CONVINCING IN MEDICAL INTERFERENCE CASE REQUIRES SHOWING THAT THE RESULT WOULD HAVE BEEN THE SAME WITHOUT THE RESPONDENT S INTERFERENCE WITH THE MEDICAL TREATMENT

AFFIRMATIVE DEFENSE IN MEDICAL INTERFERENCE CASE REQUIRES RESPONDENT TO SHOW HIGH PROBABILITY THAT RESULT WOULD HAVE BEEN SAME BUT FOR RESPONDENT S INTERFERENCE; OPINION OF ADDITIONAL MEDICAL AUTHORITY IS A FACTOR

INTERFERENCE WITH MEDICAL TREATMENT CASES DO NOT NECESSARILY REQUIRE RESPONDENT TO PAY FOR ALL TREATMENT PROVIDED BY MEDICAL PROVIDER

WHERE MEDICAL TREATMENT OPINIONS PROVIDED BY RESPONDENT CONTRACTOR ARE NOT ENTIRELY INDEPENDENT, BUT SUBJECT TO INFLUENCE BY RESPONDENT, INCLUDING ABILITY TO HIRE AND FIRE CONTRACTOR S EMPLOYEES, RESPONDENT S ARGUMENT AS TO LACK OF INTERFERENCE FAILS

FAILURE OF PHYSICIAN ASSISTANT, CONTRARY TO MEDICAL PROVIDER S PROCEDURES, TO EVEN CONSULT WITH COMPLAINANT S TREATING PHYSICIANS, IS EVIDENCE OF RESPONDENT S INTERFERENCE WITH MEDICAL TREATMENT

In Santiago v. Metro-North Commuter Railroad Co., Inc. , ARB No. 13-062, ALJ No. 2009-FRS-11 (ARB June 12, 2015), the Complainant filed a complaint alleging that the Respondent violated the FRSA when it reclassified his back injury as non-occupational and ceased paying for medical treatment. The ALJ dismissed the complaint, but the ARB remanded for further proceedings because the ALJ erroneously limited FRSA's protection under 49 U.S.C.A. § 20109(c)(1) to medical treatment immediately following a work injury rather than all medical treatment connected to a work injury. On remand, the ALJ was to determine whether the Respondent violated § 20109(c)(1) with respect to any medical treatment connected to the Complainant's work injury. On remand, the ALJ found that the reclassification interfered with the Complainant's medical treatment under § 20109(c)(1), and that the Respondent did not prove its affirmative defense that the reclassification would have been the same without the railroad carrier's interference. The ARB summarily affirmed the ALJ's decision on remand, except as to one evidentiary issue.

The ARB conceded that its remand order's condensed discussion of evidentiary issues that could arise under the affirmative defense misled to the ALJ into concluding that the ARB had predetermined as irrelevant any medical evidence related to the issue of medical reasonableness and consequently denying the Respondent's request to offer medical expert testimony on the question of medical reasonableness. The ARB also noted that the Respondent had misunderstood the ARB to pronounce that the testimony of any reasonable doctor only meant that testimony from another reasonable doctor would constitute clear and convincing evidence of what would have occurred without the Respondent's interference.

The ARB stated that the most critical point of the remand order was that the ALJ must look at all the direct and circumstantial evidence, as a whole, to determine whether the Respondent met its burden to prove its affirmative defense. Specifically, the Respondent was required to prove by clear and convincing evidence that the result would have been the same without the Respondent's interference with the medical treatment. The ARB explained:

   To determine what might have occurred, the ultimate question is whether Metro-North's evidence is so strong that it was highly probable that a reasonable doctor acting independently, without Metro-North's involvement, would have determined that the Manipulation Under Anesthesia (MUA) treatment (by Dr. Hildebrand) was medically unreasonable. The ultimate question is not whether the MUA was medically reasonable treatment; it is only a factor that could be considered. This is what the ARB stated it meant when it said the ALJ did not necessarily need to get bogged down in specifically deciding, like an insurance carrier or insurance review board, whether the treatment should have been provided and paid for.

   Independent medical opinions about reasonably necessary treatment could provide circumstantial evidence of what would have occurred without Metro-North's involvement. Such testimony could bolster Dr. Hildebrand's decision and, depending on the evidence, possibly demonstrate why the same outcome was highly probable without Metro-North's involvement. The ARB did not intend to predetermine that additional medical testimony as to medical reasonableness was per se irrelevant, but only meant to emphasize that it was only a factor to consider in analyzing what the outcome might have been. It seems the ALJ excluded Metro-North's additional medical testimony because she understood the remand order to say it was per se irrelevant; that ruling was an abuse of discretion and therefore erroneous. But, rather, as discussed below, it was harmless error in this case.

   Metro-North's offer of proof demonstrates that its proffered evidence would show only that the issue of medical reasonableness was debatable. Showing that any reasonable doctor out of a pool of doctors would have led to the same conclusion (the treatment was medically unreasonable) could have weighed heavily in Metro-North's favor. But Metro-North offered to show only that another doctor agreed with Metro-North and disagreed with Dr. Thomas Drag. What another doctor might testify is not the same as showing that any doctor would agree with Dr. Lynne Hildebrand. This does not mean that every reasonable doctor has to testify, but certainly stronger evidence is needed in this case beyond competing medical opinions.

   In this case, the ALJ ruled that Dr. Hildebrand's opinion flies in the face of the medical evidence in the record and substantial evidence supports her findings. Plus, the medical treatment actually worked. Metro-North's proffered testimony, if believed, may have generated a debatable point as to medical reasonableness, but it was not persuasive to the ARB that it had the potential of satisfying Metro-North's clear and convincing burden of proof. Debatable falls below the clear and convincing burden of proof.

USDOL/OALJ Reporter at 3-4.

The Respondent also argued that under the ARB's view of the section 20109(c), a railroad would be required to pay for all treatment recommended by any health care provider for any procedure, thus creating potentially limitless liability for the railroad. The ARB found that [t]his exaggerates and misstates the Board's ruling and ignores the ALJ's finding based on the specific facts in this case that Metro-North interfered with Santiago's medical treatment. Rather, the ARB found that the ALJ had carefully explained why she found that the Respondent's Occupational Health Services (OHS) department was not entirely independent, and that the Respondent influenced to some degree the medical decisions. The ALJ had found the Respondent's power to end the contract with OHS and hire and fire medical personnel at will created a powerful influence over the medical facility. The ARB stated that had the Respondent sent injured employees to a health care service completely independently of its influence, then the Respondent would have had a basis to argue that it did not interfere with medical treatment. The ARB also stated that the Respondent had missed the significance of the phrase contributing factor in the FRSA. The ARB reiterated that Congress has made it clear that it wants railroad companies to completely stop interfering with the railroad worker's ability to seek proper medical treatment for work injuries.

TIMELINESS OF PETITION FOR REVIEW TO ARB; LACK OF NOTICE OF APPEAL RIGHTS ON ALJ'S DECISION FOUND INADEQUATE IN ITSELF TO ESTABLISH GROUNDS FOR EQUITABLE TOLLING

In Swinney v. Fluor Corp. , ARB No. 15-044, ALJ No. 2014-SOX-41 (ARB June 11, 2015), the Complainant's petition for ARB review was one day late. The time limit for such a petition is 10 business days from the date of the ALJ's decision. 29 C.F.R. § 1980.110(a)(2014). The Complainant argued that the ALJ's failure to include a notice of appeal rights with the decision, as is the normal practice, was responsible for her failure to timely file. The Complainant stated that it took her eight days to learn about the opportunity to petition for review. The ARB found that the Complainant had not established grounds for tolling the limitations period. The ARB stated that it was regrettable that the ALJ did not include a notice of appeal rights, but that ALJs are not required by statute or regulation to do so. The ARB noted that the Complainant had "not explained what steps she took during the eight days before she filed to acquaint herself with her rights, nor how it was that she learned of them ...." The ARB found it significant that the Complainant, although now proceeding pro se, had consulted with and been represented by counsel.

CONTRIBUTING FACTOR CAUSATION; PANEL SPILTS ON WHETHER POWERS DECISION VALIDATED FORDHAM DECISION'S BAR ON CONSIDERATION OF RESPONDENT'S REASONS FOR ADVERSE ACTION AT CONTRIBUTING FACTOR STAGE OF ANALYSIS

In Keeler v. J.E. Williams Trucking, Inc. , ARB No. 13-070, ALJ No. 2012-STA-49 (ARB June 2, 2015), the ARB found that the ALJ erred in analyzing the "contributing factor" element of a STAA complaint under the "motivating factor" standard of the pre-2007 amendments to the STAA, as explained in Beatty v. Inman Trucking Mgmt. , ARB No. 13-039, ALJ No. 2008-STA-020 (ARB May 13, 2014), slip op. at 8. The ARB also found that the ALJ erred in rejecting the Complainant's proof of contributing factor causation in part based on a weighing under the preponderance of evidence standard of the Respondent's evidence of a non-retaliatory basis for its termination of the Complainant's employment against the Complainant's causation evidence.

The ARB cited as examples of the ALJ's improper weighing of the Respondent's evidence, the ALJ's notation of the Respondent's "more than ample reasons to fire the Complaint" and the Respondent's "reasonable basis to be dissatisfied with the Complainant's performance, especially as reflected in the advice he received from his financial advisors." The ARB stated:

However, the weighing of a respondent's affirmative defense evidence supporting a non-retaliatory reason or basis for the personnel action at issue against a complainant's causation evidence at the "contributing factor" proof stage is not, as the ARB has recently held, legally permissible, as the respondent's affirmative defense evidence must be weighed under the heightened "clear and convincing evidence" burden of proof standard.13/

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13/ See Fordham v. Fannie Mae , ARB No. 12-061, ALJ No. 2010-SOX-051 (ARB Oct. 9, 2014), reaffirmed en banc in Powers v. Union Pacific Railroad , ARB No. 13-034, ALJ No. 2010-FRS-030 (ARB Mar. 20, 2015) (reissued Apr. 21, 2015).

USDOL/OALJ Reporter at 7. The ARB, however, found that substantial evidence supported the ALJ's determination that Respondents nevertheless proved by clear and convincing evidence that they would have terminated the Complainant's employment regardless of her protected activity. This determination was largely based on the ALJ's credibility determinations.

One member of the ARB panel concurred, agreeing with the majority's affirmance on the clear and convincing evidence question, but stating that he disagreed with three aspects of the majority's decision:

First, the ALJ did not apply an incorrect causation standard the ALJ cited and applied the contributing factor standard of causation even though she stated at one point that there was no evidence that any adverse action was in any way motivated by any protected activity. Second, Fordham 's rule that an employer's reasons for taking adverse action cannot be considered when determining whether protected activity contributed to adverse action is not the law after the decision in Powers , thus the ALJ did not fail to properly analyze contributing factor causation. And third, when a complainant has proven all the elements of her case protected activity, adverse action, and causation by a preponderance of the evidence, then she has proven a violation; it is only at that point the burden shifts for an employer to prove by clear and convincing evidence that although it violated the statute, it should be free from liability because it would have acted the same way absent any protected activity.

USDOL/OALJ Reporter at 11. The third ground for disagreement relates to a portion of a statement made by the majority in a footnote that "[p]roof of 'contributing factor' causation does not, however, automatically result in a finding of a violation of STAA's whistleblower provisions ." The concurring member believed that this statement was made "to support the restriction of relevant evidence when determining causation so that an employer will not be found to be a violator without having been able to present its evidence and have it considered." Id . at 10. The concurring member indicated that this is adding an additional step after the basis for violation has already been established.

PROTECTED ACTIVITY; FELA LAWSUIT CAN BE PROTECTED ACTIVITY UNDER THE FRSA

SECTION 20109(c)(2) PROVIDES A SAFE HARBOR FOR REFUSALS TO PERMIT RETURN TO WORK IF BASED ON FEDERAL RAILROAD ADMINISTRATION OR CARRIER S FITNESS FOR DUTY STANDARDS; HOWEVER, EMPLOYER MUST SHOW RELEVANT STANDARDS FOR FITNESS FOR DUTY AND HOW EMPLOYEE FAILED TO MEET THEM

COMPLAINANT S CONTRIBUTING FACTOR BURDEN OF PROOF; APPLICATION OF POWERS - ALTHOUGH COMPLAINANT PUT ON CIRCUMSTANTIAL EVIDENCE PLAUSIBLY SUPPORTING INFERENCE OF CAUSATION, ARB AFFIRMED ALJ S DETERMINATION OF LACK OF CONTRIBUTORY CAUSE BASED ON RESPONDENT S NON-RETALIATORY EXPLANATIONS

In Ledure v. BNSF Railway Co. , ARB No. 13-044, ALJ No. 2012-FRS-20 (ARB June 2, 2015), the ARB applied its en banc decision in Powers v. Union Pac. R.R. , ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Mar. 20, 2015)(en banc) (reissued with full dissent Apr. 21, 2015), decision, and found that an ALJ can consider any evidence relevant to the issue of causation, including the employer's explanation for why it did what it did. USDOL/OALJ Reporter at 9 (footnote omitted).

The complaint allegation of refusal to allow return to work in retaliation for FELA lawsuit

In Ledure , the Complainant injured his back while performing duties as a conductor, and began a medical leave of absence and medical treatment. The Complainant filed a claim against the Respondent under Federal Employer's Liability Act (FELA), which was denied by a jury. The Complainant then presented a full medical release to return to work from his treating physician. A field manager chose not to forward the release to the medical director, the field manager finding the release to be ambiguous and insufficient because it contained language advising the Complainant of the hazards and complications attendant to returning to unrestricted heavy industrial activity. The Complainant filed a FRSA retaliation complaint. The ALJ denied the complaint.

FELA lawsuit as protected activity

The Respondent did not contest the ALJ's finding that the refusal to allow the Complainant to return to work was unfavorable employment action. The ARB affirmed the ALJ's finding that the more specific notification about the extent of the Complainant's injury provided during the FELA claim was protected activity.

FRSA fitness for duty safe harbor; burden on respondent to show element met

The ARB also affirmed the ALJ's determination that non-retaliatory reasons were the reasons the Respondent refused to return the Complainant to work, and rejected the protected activity as a contributing factor.

The ARB noted: In Section 20109(c)(2), the act expressly carves out an exception for some unfavorable employment actions and provides that the employer does not violate the Act when it refuses to permit an employee to return to work following medical treatment if the refusal occurs pursuant to Federal Railroad Administration (FRA), or the carrier's, medical standards for fitness of duty. 49 U.S.C.A. § 20109(c)(2). The provision literally exempts fitness for duty situations from coverage. USDOL/OALJ Reporter at 6. The ARB concluded subsection (c)(2) created a 'safe harbor. The ARB stated: As the specific language of subsection (c)(2) provides that an employer's refusal to allow an employee to return to work will not be a violation of the Act if it is pursuant to the FRA or the carrier's standards for fitness for duty, for expediency's sake, the ALJ can first decide any claim based on subsection (c)(2) prior to any other analysis. Id. at 7. The ARB determined that the employer bears the burden of persuasion that the elements of that subsection have been met. The ARB stated that [t]hose elements include establishing the relevant standards for fitness for duty and how the employee has failed to meet them. Id . (footnote omitted).

The ARB continued, stating: Thus, where the employer has not established the requisite evidence to establish the safe harbor provided by subsection (c)(2), the ALJ must: (1) determine whether the complainant proved its claim of unlawful whistleblower retaliation on the record as a whole and (2) if so, determine whether the employer proved by clear and convincing evidence that it would have taken the same adverse action absent [the complainant's] protected activity. Id . at 7-8.

Complainant's contributing factor burden of proof; application of Powers

The ARB found that in the instant case, neither the FRA nor the Respondent's medical standards for fitness for duty were offered into evidence, and therefore, as a matter of law, the Respondent was not entitled to the carve-out exception. Consequently, the ARB reviewed the ALJ's finding that the Complainant failed to meet his contributing factor burden of proof. The ARB, quoting Powers v. Union Pac. R.R. , ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Mar. 20, 2015) (en banc) (reissued with full dissent Apr. 21, 2015), slip op. at 16-17, 19, n.6., stated: In deciding this question, an ALJ must look at the entire record as a whole and keep in mind that there there is no inherent limitation on specific admissible evidence that can be evaluated for determining contributing factor as long as the evidence is relevant to that element of proof. Id . at 8 ( (footnote omitted).

In the instant case, the ALJ had recognized that the contributing factor element is not a demanding standard, and noted examples of the circumstantial evidence proffered by the Complainant and the temporal proximity between the FELA trial verdict, the Complainant's request to be marked up for work and submission of a medical release. The ARB found that, standing alone, this evidence might cause some triers of fact to suspect that protected activity may have influenced the decision not to allow the Complainant to return. However, in this case, the ALJ was persuaded by the Respondent's non-retaliatory explanations. The ARB stated:

The ALJ has the right to consider any evidence that is relevant to the question of causation, including the employer's explanation for why it did what it did. 18 / The ALJ specifically found that (1) the treating physician's warning in the medical release about returning to full duty would make any prudent medical manager ask for more information but the information was not timely submitted and (2) there was no reason to believe there was any contributing factor between protected activity and the failure to be reinstated to the conductor's position or to be allowed to qualify for the engineer position.

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18 / Powers , ARB No. 13-034, slip. op. 22, 33-34 (the Board unanimously agreed there is no inherent limitation on specific admissible evidence that can be evaluated for determining contributing factor causation as long as the evidence is relevant to that element of proof )(emphasis original).

Id . at 9 (quoting ALJ's decision) (footnote omitted).

[Editor's note: See the March 2015 ARB case summaries on this website for more about the Powers decision, and its clarification of the "contributory factor" evidentiary analysis enunciated in Fordham v. Fannie Mae , ARB No. 12-96, ALJ No. 2010-SOX-51 (ARB Oct. 9, 2014). In Fordham , a split panel of the ARB had ruled that a respondent's evidence of a legitimate, non-retaliatory reason for an adverse action may not be weighed by the ALJ when determining whether the complainant met his or her burden of proving contributing factor causation by a preponderance of the evidence. The ARB appears not to be wholly in agreement internally on how to weigh evidence of an employer's non-retaliatory reasons for the adverse action at the contributing factor stage of the analysis. See also and compare Keeler v. J.E. Williams Trucking, Inc. , ARB No. 13-070, ALJ No. 2012-STA-49 (ARB June 2, 2015) and Summary above.]