June 2019
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):USDOL/OALJ Reporter
The ARB issued an errata and reissued decision to correct the caption on Taft v. Paramount Coffee Co., ARB No. 2019-0031, ALJ No. 2019-FDA-00002. See the May 2019 ARB Decisions page for a casenote.
OFCCP v. Analogic Corp., ARB No. 2019-0044, ALJ No. 2017-OFC-00001 (ARB June 24, 2019) (Notice of Case Closing)
Casenote(s):
The ARB closed the case because OFCCP informed the Board that it would not be filing exceptions to the ALJ’s Recommended Decision and Order.
PWCA v. Sec'y of Labor, ARB Nos. 2016-0019 and -0021 (ARB June 24, 2019) (Order Granting Administrator's Motion to Remand)
Casenote(s):
The Petitioners—which both sponsor plans that offer a supplemental unemployment benefit ("SUB") to participating employers—challenged the October 22, 2015 rulings of the Administrator, Wage and Hour Division that participating employers in their SUB plans must annualize contributions to the SUBs to satisfy the Davis-Bacon Act’s prevailing wage requirements. The ARB granted the Administrator’s motion to remand for a determination whether the October 22, 2015 rulings should remain in effect.
Brown v. Synovus Financial Corp., ARB No. 2019-0007, ALJ No. 2015-SOX-00018 (ARB June 19, 2019) (Final Decision and Order)
Casenote(s):
FRCP 60(d) MOTION PROPERLY DENIED WHERE IT WAS MERELY AN ATTEMPT TO REARGUE THE CASE
In Brown v. Synovus Financial Corp., ARB No. 2019-0007, ALJ No. 2015-SOX-00018 (ARB June 19, 2019), after the 11th Circuit Court of Appeals had affirmed the ARB’s decisions finding Complainant’s petition for review untimely and denying Complainants’ motion for reconsideration, Complainant filed a FRCP 60(d) motion with the ALJ asserting fraud on the court (an allegation made earlier in the litigation). The ALJ denied the motion finding that it alleged no new information or discovery of fraud, but rather moved for relief based on facts and content already known to him when the matter was originally before the ALJ. The ALJ found that the motion was an attempt to reargue the case. The ARB affirmed the ALJ’s denial of the motion for relief under FRCP 60(d), stating that “[t]he ALJ correctly concluded that Brown seeks to relitigate his case in the form of a motion for relief.” Slip op. at 2.
Gatto v. General Utilities, ARB No. 2019-0008, ALJ No. 2018-STA-00003 (ARB June 19, 2019) (Final Decision and Order)
Casenote(s):
[STAA Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE FOUND NOT OBJECTIVELY REASONABLE WHERE COMPLAINANT RELIED ONLY ON PRIOR EXPERIENCE WITH ASSIGNED VEHICLE AND DID NOT INSPECT THE VEHICLE, THE TRUCK HAD BEEN REPAIRED AND PASSED A STATE SAFETY INSPECTION, AND OTHER DRIVERS HAD NOT REPORTED SAFETY PROBLEMS WITH THE VEHICLEIn Gatto v. General Utilities, ARB No. 2019-0008, ALJ No. 2018-STA-00003 (ARB June 19, 2019), the Complainant noticed a fuel oil leak from his assigned truck and was directed by his supervisor to take a spare truck. Complainant refused to drive the only available spare truck based on his prior experience of being unable to open the doors or windows, and similar complaints of other drivers. The supervisor referred Complainant to the chief mechanic, who determined that the truck was safe to drive. Complainant continued to refuse to drive that truck. Complainant was later terminated for abandoning his job. Complainant filed a STAA complaint. Following a hearing, the ALJ found that Complainant had not engaged in protected activity under the STAA because an objectively reasonable person would not have believed that operation of the spare truck would cause a serious risk or injury to themselves or the public. The ALJ found it undisputed that Complainant relied only on his prior experience with the truck, and did not conduct a pre-trip inspection or even try the door or windows. The ALJ noted that the truck’s maintenance history showed that it had been repaired, that it passed a New York safety inspection, that the chief mechanic had found no safety problems, that another driver completed the delivery and found the truck safe to drive, and that the truck was used within a week of Complainant’s refusal to drive without report of safety problems. The ARB found that the ALJ’s factual findings were supported by substantial evidence and his conclusions of law were correct and well-reasoned.
Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
CONTRIBUTORY FACTOR CAUSATION; REPORT OF INJURY; CAUSAL INFERENCE BASED ON TEMPORAL PROXIMITY DIMINISHED BY INTERVENING EVENTS SHOWING A REASONABLE CONCERN BY EMPLOYER THAT COMPLAINANT WAS CHARGING OFFICIAL TIME WHILE ENGAGED IN PERSONAL ACTIVITIES; EMPLOYER’S SURVEILLANCE OF COMPLAINANT WAS A REASONABLE RESPONSE TO COMPLAINTS FROM CO-WORKERS ABOUT COMPLAINANT’S ACTIVITIES
CONTRIBUTORY FACTOR CAUSATION; REPORT OF INJURY; COMPLAINANT CANNOT PROVE CONTRIBUTION MERELY BASED ON EMPLOYER’S INABILITY TO PROVE APPROPRIATENESS OF DISCIPLINARY CHARGE; RESPONDENT DOES NOT HAVE BURDEN TO ESTABLISH CORRECTNESS OF CHARGE BUT ONLY THAT PROTECTED ACTIVITY DID NOT CONTRIBUTE TO IT
CONTRIBUTORY FACTOR CAUSATION; REPORT OF INJURY; ALJ MAY TAKE INTO CONSIDERATION RESPONDENT’S “LIGHT” DISCIPLINE FOR COMPLAINANT’S MISCONDUCT
In Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019) (per curiam), Complainant alleged in an FRSA complaint that Respondent interfered with his medical treatment and retaliated against him for reporting his injuries and making a safety complaint. The ARB found that substantial evidence supported the ALJ’s determination that Complainant’s reports of injuries had not contributed in any way to his censures.
Complainant suffered his first injury in December 2012. On April 19, 2013, he missed a physical therapy session that he said that he would attend during paid work time. Respondent censured Complainant within a week of discovering the abuse of company time. The ARB concurred with the ALJ’s finding that that the span of four months between the injury report and the censure lacked a strong temporal connection. The ARB wrote:
A short duration between adverse action and protected activity can constitute circumstantial evidence of causation but is not necessarily dispositive of contributing factor causation. Barker v. Ameristar Airways, Inc., ARB 05-058, ALJ No. 2004-AlR-012, slip op. at 7 (ARB Dec. 31, 2007). [Complainant’s supervisor’s] receiving a complaint [from a co-worker] about Wevers and discovering his abuse of work time served as intervening events that diminished any causal inference from temporal proximity with the December report of an injury. . . . The investigation into Wevers’s conduct was reasonable and unrelated to the injury report except for the incidental point that he should have been at a physical therapy appointment as part of his treatment stemming from the injury report.
Slip op. at 12.
The ALJ also found that Complainant’s injury report did not contribute to his discipline in October 2013. The ARB noted that the ALJ had found that the temporal proximity of nine to ten months between the October 2013 discipline and the December 2012 injury report was minimal, and that the ALJ found that non-retaliatory reasons accounted for the October discipline. Respondent had investigated Complainant’s work activities and observed Complainant taking a long lunch and stopping at places that did not have a clear work purpose. This investigation had been prompted in part from complaints from co-workers based on their concerns about work not being completed and increased work load because of Complainant’s light work schedule. The ARB noted that the ALJ “considered the covert performance surveillance as a routine response to the co-workers’ complaints and corroborating circumstances.” Id. The ARB stated that Respondent’s “investigation and discovery of Wevers’s wrongdoing constituted intervening events leading to the October censure and ten-day waived suspension.” Id. The ARB also noted that Complainant’s “letter of discipline was issued one day after the discovery of his wrongdoing.” Id.
The ALJ observed that Complainant’s evidence of causal contribution stemmed mainly from Respondent’s inability to prove the appropriateness of its disciplinary charge. The ARB found that “the ALJ correctly concluded that MRL was not burdened with proving the correctness of its disciplinary charge, but only that Wevers’s injury report or other protected activity did not cause its disciplinary charge in whole or in part.” Id. The ARB further noted that the ALJ “discounted contribution in part because of the light discipline Wevers actually received for his misuse of company time, which included censure letters, a waived suspension and notations in his personal file that would be removed if he had no further problems.” Id.
HOSTILE WORK ENVIRONMENT; TO BE ACTIONABLE, WORK ENVIRONMENT MUST BE SUFFICIENTLY SEVERE OR PERVASIVE TO ALTER CONDITIONS OF EMPLOYMENT AND CREATE AN ABUSIVE WORK ENVIRONMENT
HOSTILE WORK ENVIRONMENT; NEGATIVE COMMENTS NOT KNOWN TO COMPLAINANT UNTIL DISCOVERY AND NEGATIVE COMMENTS BY CO-WORKERS MADE NOT BECAUSE OF INJURY, BUT SAFETY CONCERNS AND INCREASED WORK LOAD, FOUND INSUFFICIENT TO ESTABLISH HOSTILE WORK ENVIRONMENT
HOSTILE WORK ENVIRONMENT; COVERT INVESTIGATION OF WHETHER COMPLAINANT WAS ABUSING WORK TIME WAS NOT HARASSMENT BUT A STANDARD AND ROUTINE RESPONSE TO SUSPICION OF ABUSE
In Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019) (per curiam), Complainant alleged in an FRSA complaint that Respondent interfered with his medical treatment and retaliated against him for reporting his injuries and making a safety complaint. One of Complainant’s allegations was that he suffered a hostile work environment based upon co-workers’ and management’s attitude toward his injury and Respondent’s investigations into his use of company time. The ALJ found that Complainant did not establish a hostile work environment.
On appeal, Complainant noted comments by co-workers and supervisors concerning his light-duty status following his injury, such as a co-worker telling him to “man up” and calling him a “wuss,” and a management official mocking his injuries by calling him a “six million dollar man” who might implode. Complainant also noted that Respondent conducted covert surveillance of his activities during the work day.
The ARB, however, affirmed the ALJ’s conclusion that Complainant did not suffer an actionable hostile work environment. The ARB wrote:
To constitute an actionable hostile work environment, that environment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Williams v. Nat’/ R.R. Passenger Corp., ARB No. 12-068, ALJ No. 2012-FRS-016, slip op. at 6-7 (ARB Dec. 19, 2013), citing Harris v. Forklift Sys., 510 U.S. 17, 21-23 (1993).
Slip op. at 13. The ARB found that substantial evidence supported the ALJ’s finding. It noted that the management officials’ comments only become known to Complainant during discovery, and that the official who made the six-million dollar man comment had no decision-making role in the censures. The co-workers’ negative views of Complainant’s work status arose out of safety concerns and increased work load. The ARB agreed with the ALJ that Complainant’s supervisor’s investigation into Complainant’s performance was not evidence of harassment or a hostile work environment; that supervisor had supported his assessment of Complainant’s abuse of work time through an independent inquiry without relying on information from others. The ARB stated that the ALJ “correctly reasoned that these performance investigations were standard and routine.” Id.
INTERFERENCE WITH MEDICAL TREATMENT; SUBSECTION 20109(c)(1) IS NOT A TYPICAL “WHISTLEBLOWER” PROVISION, BUT RATHER A DIRECT PROHIBITION OF CERTAIN CONDUCT; REQUEST FOR MEDICAL TREATMENT IS THE PROTECTED ACTIVITY ; DENIAL, DELY OR INTERFERENCE WITH MEDICAL TREAMENT IS THE ADVERSE ACTION; CONTRIBUTORY FACTOR CAUSATION AND AFFIRMATIVE DEFENSE BURDENS APPLY
In Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019) (per curiam), Complainant alleged that Respondent interfered with his medical treatment in violation of 42 U.S.C. § 20109(c)(1). The ARB noted that the ALJ had observed that subsection (c)(1) “is not a typical whistleblower protection provision but is instead a direct prohibition of certain conduct.” Slip op. at 15. Further, “[l]ikening subsection (c)(1) to an anti-retaliation provision, the ALJ reasoned that a request for medical treatment would constitute the protected activity under this subsection and the employer’s adverse action would be the denial, delay, or interference with medical treatment. Extending this analysis, the ALJ concluded that subsections 20109(c) and (d) would implicitly incorporate the typical requirement of contributing factor causation and thereby provide the employer with an affirmative defense that its action is not a prohibited interference or denial of treatment but a reasonable course of action.” Id. (footnote omitted).
INTERFERENCE WITH MEDICAL TREATMENT; OVERTURNING ITS INTERPRETATION IN SANTIAGO, THE ARB HELD THAT THE EMPLOYEE PROTECTIONS PROVIDED AT 42 U.S.C. § 20109(c)(1) ARE LIMITED TO THE TEMPORAL PERIOD IMMEDIATELY FOLLOWING A WORKPLACE INJURY
In Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019) (per curiam), Complainant alleged that Respondent interfered with his medical treatment in violation of 42 U.S.C. § 20109(c)(1). Both parties cited to and relied upon the ARB’s decision in Santiago v. Metro-North Commuter R.R. Co., Inc., ARB No. 10-147, ALJ No. 2009-FRS-11 (ARB July 25, 2012), in which the ARB ruled that “subsection 20109(c)(1) bars a railroad from denying, delaying, or interfering with an employee’s medical treatment throughout the period of treatment and recovery from a work injury.” In Metro-North Commuter R.R. Co. v. U.S. Dep’t of Labor, 886 F.3d 97 (2d Cir. 2018) the Second Circuit vacated the ARB’s Santiago opinion based on a finding that the ALJ’s decision was supported by substantial evidence under DOL’s interpretation of subsection (c)(1). The court, however, found several problems with the ARB’s approach to subsection (c)(1), and suggested that DOL reconsider its interpretation. Thus, in the instant case the ARB reexamined the question, and found that “the text of subsection (c)(1) as a whole indicates that it was intended to be limited to first aid treatment immediately following a workplace injury” and that “[t]he language of subsections (c)(1) and (c)(2), when considered together, also supports the conclusion that subsection (c)(1) is limited to the period of time immediately following a workplace injury.” Slip op. at 18. The ARB held:
Accordingly, we will no longer adhere to the interpretation of subsection (c)(1) that the Board had previously set forth in Santiago. Instead, we hold that subsection 20109(c)(1) prohibits an employer from denying, delaying, or interfering with medical treatment or first aid only in the temporal period immediately following a workplace injury. Subsection 20109(c)(1)’s provision for prompt “medical or first aid treatment” does not create a statutory right to ongoing or unlimited medical treatment of choice over the entire course of a treatment plan or recovery period for a workplace injury. As Wevers does not complain of his medical or first aid treatment immediately following his workplace injuries, the only question that remains before us is whether MRL disciplined or threatened to discipline Wevers for following the treatment plan of a treating physician.
Id. at 19 (footnotes omitted). In a footnote the ARB stated: “The determination as to what constitutes an appropriately limited temporal period will necessarily be fact-driven and so we decline to set forth any specific temporal limits or boundaries.” Id. at n.9.
CONTRIBUTORY FACTOR CAUSATION; INTERFERENCE WITH MEDICAL TREATMENT; ARB EXPRESSES SKEPTICISM OF ALJ’S CHAIN OF CAUSATION ANALYSIS, CITING FEDERAL COURT DECISIONS ADDRESSING IMPORT OF PROXIMATE CAUSATION AND INTERVENING EVENTS
AFFIRMATIVE DEFENSE; INTERFERENCE WITH MEDICAL TREATMENT; INVESTIGATION LEADING EMPLOYER TO CONCLUDE THAT COMPLAINANT WAS USING COMPANY TIME FOR PERSONAL BUSINESS; FINDING THAT PROXIMATE CAUSE OF CENSURE OF COMPLAINANT WAS NOT BASED ON TREATMENT PLAN BUT COMPLAINANT’S FAILURE TO ATTEND MEDICAL APPOINTMENT AND ABUSE OF COMPANY TIME
AFFIRMATIVE DEFENSE; EVIDENCE OF HOW OTHER EMPLOYEES WERE DISCIPLINED WAS NOT CONCLUSIVE BUT WAS SUPPORTIVE OF TESTIMONIAL EVIDENCE
In Wevers v. Montana Rail Link, Inc., ARB No. 2016-0088, ALJ No. 2014-FRS-00062 (ARB June 17, 2019) (per curiam), Complainant alleged that Respondent interfered with his medical treatment in violation of 42 U.S.C. § 20109(c)(1). The ALJ found that Complainant established contributory factor causation. The ALJ found temporal proximity between the treatment plan and censures of Complainant because Complainant’s treatment and light-duty work status were ongoing dating from his injury through to when he received his censures. The ALJ also found that Complainant’s treatment plan and the censures were inextricably intertwined and satisfied the contributing-factor standard. This, according to the ALJ’s findings, was because co-workers were upset about Complainant’s light duty and non-work, and a co-worker was likely the source behind the complaint about Complainant’s wasting work time. The ALJ found that this animosity formed the reason for the coworker’s complaints to Complainant’s supervisor. The ARB did not affirm this aspect of the ALJ’s decision. It noted that it did not necessarily endorse the chain of causation upon which the ALJ relied, citing BNSF Ry. Co. v. U.S. Dep’t of Labor, 867 F.3d 942, 946-49 (8th Cir. 2017) (examination of chain of causation); Koziara v. BNSF Ry. Co., 840 F.3d 873, 877 (7th Cir. 2016) (distinction between causation and proximate causation); and; Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014) (context of intervening events). The ARB, however, did not resolve the question because it affirmed, as supported by substantial evidence, the ALJ’s additional determination that Respondent satisfied its affirmative defense by clear and convincing evidence that it would have censured Complainant for violating company use of time policy even if Complainant had not been following the treatment plan of a treating physician. The ARB stated that the ALJ properly discounted the fact that Respondent Learned of Complainant’s wrongdoing through an investigation, and noted that the ALJ had found that monitoring employee performance and use of time were normal and routine actions. In short, Respondent would have censured Complainant even if he were not following the treatment plan of physicians, those censures having arisen from misconduct.
The ARB noted that Respondent had submitted a tabular exhibit with information about all the other employees that it disciplined over a particular time frame. The ARB noted that the ALJ found that this history of discipline was “not itself conclusive, as it could not accurately isolate for injuries, but when considered in conjunction with [Respondent’s Chief Engineer’s] testimony, the exhibit supported [Respondent’s] affirmative defense.” Slip op. at 21. The ARB also noted that
The ALJ reasoned that co-workers’ frustrations were not due to Wevers’s work-related injury or treatment plan but rather it was the fact that his work was not being completed and work time was being wasted. . . . The co-workers’ bias and hostility generated the complaint, which in turn triggered an independent investigation. This investigation revealed a violation of company policy independent of Wevers’s protected activity. The proximate cause of the April censure letter was Wevers’s failing to attend the medical appointment; the proximate cause of the October censure was Wevers’s abusing company time during a performance review.
Id. The ARB thus affirmed the ALJ’s finding that Respondent “would have censured Wevers for abuse of company time because he was not doing his job even if he had not engaged in protected activity by following the treatment plan of a treating physician.” Id.
Choctawhatchee Electric Cooperative, Inc., ARB No. 2017-0032 (ARB June 14, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
APPLICABILITY OF DAVIS-BACON ACT TO MILITARY PRIVATIZATION CONTRACTS THAT INCLUDE A CALL FOR CONSTRUCTION; ARB FINDS THAT AAM 222, ISSUED BY DOL IN RESPONSE TO THE D.C. CIRCUIT’S DECISION IN CITYCENTERDC, IS AN INTERPRETATIVE RULE THAT REASONABLY INTERPRETS DBA COVERAGE; GOVERNMENT OWNERSHIP IS NOT A PREREQUISITE TO A CONTRACT BEING CONSIDERED A “PUBLIC WORK” COVERED BY THE DBA
In Choctawhatchee Electric Cooperative, Inc., ARB No. 2017-0032 (ARB June 14, 2019) (per curiam), the ARB affirmed the WHD Administrator’s determination that the Davis-Bacon Act’s prevailing wage and labor standards apply to the construction component of Eglin Air Force Base (Eglin AFB)’s electrical system privatization contract.
The Petitioner, which had been awarded a contract for the privatization asked the Administrator for a ruling on the applicability of the DBA in light of the D.C. Circuit’s ruling in District of Columbia v. Dept. of Labor, 819 F.3d 444 (D.C. Cir. 2016) (“CityCenterDC”). The Petitioner argued that under that decision, “the privatization of Eglin AFB’s utility was not a ‘contract for construction of a public work’ under the DBA.” Slip op. at 3. The Petitioner argued that “because the contractor will own the facility and the government will not finance the construction, the contract does not fall within the provisions of the DBA.” Id. The Petitioner further argued that “[e]ven if the contract did involve public funding, . . . the lack of government ownership precludes the contract from being a ‘public work’ subject to the DBA.” Id. The Administrator, however, found that the privatization contract involved substantial construction upgrades that were more than incidental to the privatization, and that the DBA applied.
DBA applies to military privatization contracts where the contract includes construction
The ARB reviewed the relevant legal authority. This legal background culminated, following the CityCenterDC decision, in DOL’s issuance of All-Agency Memorandum 222 (Jan. 11, 2017) (AAM 222). The ARB stated that “AAM 222 announces that the WHD will continue to apply the DBA to military privatization projects when those projects call for construction, even though the federal government is not directly a party to the construction contract. . . .” Id. at 8. The ARB noted that it has ruled that AAMs are interpretative rules which may be relied upon if they are a reasonable interpretation of the DBA, and concluded that AAM 222 is a reasonable interpretation of DBA coverage. The ARB noted that the facts of this case were similar to those in CityCenterDC, but found distinguishing factors:
In CityCenterDC, the District of Columbia leased to the private developers and the lease payments went to the District of Columbia. Moreover, the factors identified in the 1994 OLC Opinion were not present in CityCenterDC, and several factors distinguish the contract under review here: the federal government is heavily if not fully funding the construction upgrades and improvements; Eglin AFB’s privatization calls for a fifty-year contract after which time the federal government may reacquire ownership; and the primary use of the privatization contract is for CHELCO to supply electricity to Eglin AFB, a military reservation administered by the federal government. For these reasons, we affirm the Administrator’s decision that CHELCO’s privatization contract calls for significant and segregable construction and constitutes a “contract . . . for construction” for purposes of requiring DBA wages and benefits.
Id. at 9 (emphasis as in original).
“Public work” under the DBA does not require government ownership
The Petitioner argued that “both ‘public funding’ and ‘government ownership’ are required for ‘public works’” — an issue not reached in the CityCenterDC decision. The ARB found that under the facts of this case, “the value, the duration, and the variety of federal funding of the work [the Petitioner] has contracted to perform” supported the Administrator’s determination that the privatization contract included substantial public funding for construction. Id.at 11. The ARB next addressed the Petitioner’s position that, because the terms of the contract make the Petitioner the owner of the utility infrastructure and responsible for its use and maintenance, there is a lack of government use or ownership necessary to be considered a “public work” under the DBA. The Administrator contended in response that “government ownership is not a statutory requirement to be considered a ‘public work’”, and that “AAM 222 . . . advises that the WHD will not treat government ownership as a prerequisite to be considered a ‘public work’ because the ‘interest of [the] general public’ may be met without government ‘title.’ AAM 222, at 8, citing 29 C.F.R. § 5.2(k).” Id. at 12. The ARB also noted that “the factors which can establish government ownership under the DEA extend beyond evidence of title and deed, but can include ownership, occupancy, and use of the final project even in the absence of the federal government being listed as an owner on the relevant legal documents. AAM 222 at 9-10; CityCenterDC, 819 F.3d at 452-53.” Id. Because it had found that the AAM 222 was a reasonable interpretation of the DBA’s requirements, the ARB declined to disturb the Administrator’s interpretation of “public work.”
Brough v. BNSF Railway Co., ARB No. 2016-0089, ALJ No. 2014-FRS-00103 (ARB June 12, 2019) (Final Decision and Order)
Casenote(s):
CONTRIBUTORY FACTOR CAUSATION; COMPLAINANT IS NOT REQUIRED TO ESTABLISH RETALIATORY ANIMUS
CONTRIBUTORY FACTOR CAUSATION; REPORT OF INJURY, EVEN THOUGH POSSIBLY UNTIMELY, FOUND TO HAVE CONTRIBUTED TO COMPLAINANT’S TERMINATION
In Brough v. BNSF Railway Co., ARB No. 2016-0089, ALJ No. 2014-FRS-00103 (ARB June 12, 2019), the ARB affirmed the ALJ’s decision finding that the Respondent violated the FRSA when it fired Complainant for reporting a work injury.
Background
Complainant was clearing snow between tracks when his tractor was hit by locomotives. After an investigation, Respondent’s superintendent found that Complainant was responsible for the collision. Prior to the investigatory hearing, Complainant had seen a chiropractor twice, and then saw his physician who diagnosed cervical and lumbosacral strain with myospasm and associated headaches due to the accident.
When called in with his union representative for the purpose of having Complainant sign a letter imposing a penalty for violation of Respondent’s rule requiring being alert and attentive on duty, Complainant declined to sign, and then filed an employee injury report based on the collision. Complainant stated that he had first noticed symptoms afterwards and had mentioned to his foreman having sore neck on at least two occasions. Complainant’s foreman was asked by Respondent to prepare a statement. The foreman stated that he had asked Complainant several times if he was OK, to which Complainant replied that he was fine. But, the foreman acknowledged that at one point when he informed Complainant’s co-workers that Complainant wasn’t hurt, Complainant grabbed his neck and said, “I don’t know about that.” Subsequently, Respondent opened an investigation into whether Complainant had been insubordinate for refusing to sign the disciplinary letter, falsely stating that he had earlier informed his foreman about his injury, and failing to comply with safety rules and to report his injuries promptly.
Following an investigatory hearing, the hearing officer and a foreman sent their conclusions to management officials that Complainant violated Respondent’s safety rule and the CBA by failing to file a written report of injury, and that Complainant had been dishonest in asserting that he reported the injury late because he believed the investigation was a conspiracy to blame him for the accident and he wanted to bring the matter to a head. Respondent then fired Complainant.
On appeal, Respondent challenged the ALJ’s determination that Complainant’s injury report and his termination were “inextricably intertwined” because the protected activity of reporting the injury was the underlying act supporting Respondent’s justification for the termination.
Complainant does not have the burden to establish intentional discriminatory animus
Respondent contended that “under the FRSA, a complainant must prove that an employer’s intentional discriminatory animus against the complainant’s protected activity, and not merely the complainant’s protected activity alone, is a contributing factor in an employer’s adverse action.” Slip op. at 10. The ARB rejected this contention:
[F]or the reasons the Board has repeatedly stated in its previous decisions, we decline to hold that an employee must prove a separate discriminatory or retaliatory animus, motivation or intent in order to establish that his protected activity was a contributing factor to the adverse employment action alleged in the complaint. Proof of the causal relationship between the protected activity and the adverse action is sufficient to establish any discriminatory intent that the statutory text implicitly requires.
Id. (footnote omitted).
Inextricably-intertwined theory — in instant case multiple factors showed late report of injury contributed to discharge
Respondent contended that “courts have rejected the inextricably-intertwined theory of contributory causation,” citing BNSF Ry. Co. v. USDOL (Cain), 816 F.3d 628, 639 (10th Cir. 2016), citing in turn, Marano v. Dep’t of Justice, 2 F.3d 1137 (Fed. Cir. 1993). In Cain, the employee had been disciplined for late reporting of medical treatment for an injury, and the court “held that an employee cannot immunize himself against discipline for wrong-doing simply by disclosing his injury as part of his protected activity. The court required the employee to show more to establish causation than the simple fact that his injury report led to his discharge.” Id. The court, however, affirmed the ALJ because he had relied on other factors such as temporal proximity and the employee’s credibility.
The ARB did not opine on whether the Inextricably-intertwined theory was valid, but instead noted that in the instant case that the ALJ received evidence on other relevant factors, such as the particular circumstances of the injury; Respondent’s negative reaction to the late injury report; Complainant’s removal from his work station for refusing to sign the disciplinary report (which did not require a signature); allusions to disciplinary actions during cross-examination of Complainant’s witnesses during the investigatory hearing; and other factors. The ARB stated:
Regardless of whether Brough’s report of his injury was untimely, Brough reported his injury. The ALJ found credible Brough’s assertions that he was reluctant to report a work injury, he wanted the injury to go away as his other previous aches and pains had, and he went to a chiropractor to try to achieve that end. When that treatment didn’t get the results he desired, he went to a physician who diagnosed his resultant work injury. Brough then reported his injury, which contributed to his termination.
Id. at 11. In sum, the ARB found that substantial evidence supported the ALJ’s determination that protected activity was a contributory factor in Complainant’s discharge.
AFFIRMATIVE DEFENSE; COMPARATIVE EVIDENCE OF TREATMENT OF OTHER EMPLOYEES CHARGED WITH DISHONESTY FOUND INSUFFICIENT WHERE IT WAS BASED ON UNSPECIFIED REVIEWS AND A DIFFERENT VARIETY OF DISHONESTY (INTENT TO DECEIVE v. MERELY BEING WRONG); ALTHOUGH MANAGERS PERCEIVED COMPLAINANT’S LATE INJURY REPORT TO BE IN RETALIATION FOR DISCIPLINE, ARB AFFIRMED ALJ’S DETERMINATION THAT INJURY REPORT WAS DRIVING FORCE FOR COMPLAINANT’S TERMINATION; ARB NOTES THAT BUT-FOR THE INJURY REPORT RESPONDENT’S REASONS FOR FIRING COMPLAINANT WOULD NOT HAVE EXISTED
In Brough v. BNSF Railway Co., ARB No. 2016-0089, ALJ No. 2014-FRS-00103 (ARB June 12, 2019), the ARB affirmed the ALJ’s decision finding that the Respondent violated the FRSA when it fired Complainant for reporting a work injury. On appeal, Respondent challenged the ALJ’s determination that it had failed to establish by clear and convincing evidence that absent the protected activity it would have taken the same adverse action. Specifically, Respondent argued “that the ALJ erred in failing to accept its affirmative defense based on its comparative evidence that the ‘vast majority’ of its employees who reported injuries were not disciplined and that other employees had been disciplined for conduct similar to Brough’s.” Slip op. at 11-12. The ALJ had found the comparative evidence insufficient, finding that Respondent’s witness — a manager who claimed to have reviewed other similar cases involving employee dishonesty — had presented only generalized reflections based on unspecified cases; the type of “dishonesty” involved was of a different nature (intent to deceived v. merely being wrong about the characterization of one’s condition); and the dishonesty charge had not been substantiated and was not crucial to the decision to fire Complainant. While Respondent’s managers’ perception was that Complainant reported the injury in retaliation for Respondent imposing discipline on him for the accident in which Complainant was injury, the ALJ had found that the reaction of the managers demonstrated that the protected activity was the driving force for the discipline. The ARB also pointed out that without the protected activity — Complainant’s injury report at the time of Respondent demanded that Complainant sign a disciplinary report — Respondent would not have known about Complainant’s chiropractic visits, his medical treatment and the late injury reporting — “and consequently BNSF’s stated reasons to fire him would not have existed.” Id. at 12.
BACK PAY; BURDEN TO PROVE FAILURE TO MITIGATE IS ON RESPONDENT; MERE ADMISSION BY COMPLAINANT THAT HE DID NOT LOOK FOR A COMPARABLE JOB FOUND NOT TO MEET THIS BURDEN UNDER FACTS OF THE CASE, SUCH AS PHYSICIANS’ STATEMENTS INDICATING COMPLAINANT WOULD NOT HAVE RETURNED TO WORK UNTIL AFTER HE RETIRED
In Brough v. BNSF Railway Co., ARB No. 2016-0089, ALJ No. 2014-FRS-00103 (ARB June 12, 2019), the ARB affirmed the ALJ’s decision finding that Respondent violated the FRSA when it fired Complainant for reporting a work injury. The ALJ awarded back pay from the date when Complainant’s physician pronounced him fit to return to work until the date Complainant chose to retire. On appeal, Respondent argued that Complainant’s deliberate withdrawal from the employment market constituted a failure to mitigate damages. The ARB first noted:
A wrongfully-discharged employee seeking back pay has a duty to exercise reasonable diligence to mitigate his damages by searching for substantially equivalent work. However, the employer must prove that its employee failed to mitigate by submitting evidence that would establish that substantially equivalent positions were available and that the employee failed to attempt diligently to secure such positions.
Slip op. at 14 (footnotes omitted). Here, the ARB noted that Respondent had not presented any evidence of available comparable jobs for the periods Complainant was not working, and thus the ALJ was unable to decide whether mitigation was possible. Respondent relied solely on Complainant’s “admission that he did not look for a comparable job during these times.” Id. The ARB noted that the Public Law Board had stipulated probation and no back pay, and that Complainant had testified that he perceived that if he returned to work he would have a target on his back, and thus he retired rather taking a chance on being fired again. The ARB also noted that physicians had indicated that Complainant was not expected to return to work until dates after when Complainant retired. On this basis, and the ALJ’s thorough discussion of her reasons for awarding back pay, the ARB found that Respondent failed to meet its burden of proof, and affirmed the ALJ’s back pay award as supported by substantial evidence.
PUNITIVE DAMAGES; ARB CONDUCTS DE NOVO REVIEW OF CONCLUSION OF LAW OF WHETHER PUNITIVE DAMAGES ARE WARRANTED
PUNITIVE DAMAGES; WHERE ALJ HAD FOUND THAT RESPONDENT HAD NOT INTENTIONALLY VIOLATED THE FRSA, ARB REVERSED ALJ’S AWARD OF PUNITIVE DAMAGES
In Brough v. BNSF Railway Co., ARB No. 2016-0089, ALJ No. 2014-FRS-00103 (ARB June 12, 2019), the ARB affirmed the ALJ’s decision finding that Respondent violated the FRSA when it fired Complainant for reporting a work injury. The ALJ awarded $75,000.00 in punitive damages. On appeal, the ARB agreed with Respondent’s contention that the ALJ erred in making this award because the ALJ had found that Respondent had not intentionally violated the FRSA. The ARB noted that it is bound to the size of a punitive damages award if the ALJ’s decision is supported by substantial evidence. Based on Section 557(b) of the Administrative Procedure Act, however, the ARB determined that it reviews de novo the question of whether a punitive damages award is warranted. Given the ALJ’s finding of no intentional violation, and the ALJ’s crediting of the managers’ belief that they were punishing unprotected conduct, the ARB reversed the conclusion of law that a punitive damages award was warranted.
AUTHORITY OF ALJ TO ORDER EXPUNGEMENT OF RECORD; ARB AFFIRMS ALJ’S ORDER, BUT NOTES PROCESS FOR DOING SO MUST ACCOMMODATE OTHER LEGAL REQUIREMENTS THAT PREVENT BUSINESS FROM DESTROYING RECORDS
In Brough v. BNSF Railway Co., ARB No. 2016-0089, ALJ No. 2014-FRS-00103 (ARB June 12, 2019), the ARB affirmed the ALJ’s decision finding that Respondent violated the FRSA when it fired Complainant for reporting a work injury. The ALJ directed expungement of the record on Complainant’s discharge. On appeal, Respondent argued that the FRSA’s “make whole” relief language refers to economic damages, and that the regulations cannot confer jurisdiction on the ALJ to order affirmative action that the FRSA does not mandate. The ARB affirmed the ALJ’s expungement order, but modified it to reflect an employer’s legal obligations to maintain company or corporate records. The ARB wrote:
We note, however, 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 company or 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 subfolder or that the employer be specifically prohibited from relying on the information in future personnel actions or referencing it to prospective employers. Thus, we affirm the ALJ’s order that BNSF expunge any employment records referencing Brough’s discipline issued on May 25, 2011, but modify her order to require that the information be placed in a sealed and/or restricted access subfolder and that the employer be specifically prohibited from relying on the information in future personnel actions or referencing it to prospective employers.
Slip op. at 18 (footnote omitted).