USDOL/OALJ Reporter: ARB Decision Caselist -- July 2006

USDOL/OALJ Reporter
Decisions of the Administrative Review Board
July 2006

 

 

Keener v. Duke Energy Corp. , ARB No. 04-091, ALJ No. 2003-ERA-12 (ARB July 31, 2006)

Title: Final Decision and Order

Links: PDF 

Summary

CAUSATION; PROTECTED ACTIVITY AS A CONTRIBUTING FACTOR TO ADVERSE ACTION IN AN ERA CASE

 

CAUSATION; PROXIMITY IN TIME; INFERENCE NOT AVAILABLE FOR INITIATION OF POSITION REVIEW THAT ULTIMATELY LEAD TO COMPLAINANT'S LAY OFF WHERE RECORD DID NOT SHOW BASIS TO CONCLUDE THAT SUCH A RESULT WAS INEVITABLE

 

In Keener v. Duke Energy Corp. , ARB No. 04-091, ALJ No. 2003-ERA-12 (ARB July 31, 2006), the ARB declined to consider whether the proximity of the Complainant's protected activity and the Respondent's decision to institute a position review process was circumstantial evidence of discrimination where the "initiation of the review process was not an adverse action because it was not 'materially adverse' to [the Complainant's] terms and conditions of employment." Slip op. at 11-12 (footnote omitted). The Board found that this review was innocuous in and of itself. The Board concluded that, regardless of the motives for starting the review, the record did not contain a reasonable basis on which to conclude that this initial step would have inevitably resulted in the creation of a new position to which the Complainant would not be selected. In addition, the review occurred more than 180 days prior to filing of the complaint, and was therefore time barred. Later in the decision, the Board clarified that the official who was aware of the Complainant's protected activity was responsible for or influenced the decisions leading to a compression of two security jobs into one, opening the position to all interested applicants within the Respondent's organization, and a selection panel's decision to recommend another candidate.

 

CAUSATION; PROXIMITY; DISTANCE IN TIME; INTERVENING EVENTS

 

In Keener v. Duke Energy Corp. , ARB No. 04-091, ALJ No. 2003-ERA-12 (ARB July 31, 2006), a 13 month gap between the time of the Complainant's protected activity and his ultimate discharge, together with the confluence of several independent intervening events, was sufficient to break any causal connection. The Board discounted the start of a position review as sufficient to raise a causal connection because there was no basis in the record for finding that the subsequent lay off was an inevitable consequence of the review, and because the review occurred more than 180 days prior to the filing of the complaint.

 

Lotspeich v. Starke Memorial Hospital , ARB No. 05-072, 2005-SOX-14 (ARB July 31, 2006)

Title:Final Decision and Order

Links: PDF 

Summary

TIMELINESS OF REQUEST FOR ALJ HEARING; EQUITABLE TOLLING NOT SUPPORTED WHERE ATTORNEY FAILED TO TIMELY APPEAL OR PROVIDE NOTICE TO COMPLAINANT SO THAT SHE COULD APPEAL

 

In Lotspeich v. Starke Memorial Hospital , ARB No. 05-072, 2005-SOX-14 (ARB July 31, 2006), the Complainant filed her request for an ALJ hearing 80 days after the OSHA determination, and the ALJ issued several orders to show cause to permit the Complainant to establish equitable grounds for tolling of the limitations period. The Complainant alleged that OSHA had failed to send her a copy of the determination letter, and that her attorney had failed to forward her a copy. The ARB agreed with the ALJ that, even if the Complainant had not received a copy of the OSHA determination, delivery of a copy to her attorney constituted notice of that determination. The attorney's failure to timely appeal or to send a copy to the Complainant so that she could timely appeal did not support equitable tolling.

 

Murphy v. Atlas Motor Coaches, Inc. , ARB No. 05-055, ALJ No. 2004-STA-36 (ARB July 31, 2006)

Title: Final Decision and Order

Links: PDF 

Summary

PRETEXT; WHERE THE ONLY TWO WITNESSES WHO TESTIFIED WERE THE COMPLAINANT AND THE RESPONDENT'S OWNER, WHO GAVE CONFLICTING TESTIMONY, AND THE ALJ BELIEVED THE OWNER, PRETEXT IS NOT ESTABLISHED

 

In Murphy v. Atlas Motor Coaches, Inc. , ARB No. 05-055, ALJ No. 2004-STA-36 (ARB July 31, 2006), the Respondent was a motor coach company. The Complainant failed to establish that the Respondent's stated ground for dismissal (that the Respondent's main client had asked that the Complainant not drive routes contracted to it because of an allegation that the Complainant had misappropriated a passenger's cell phone) was pretext. The only witnesses were the Complainant and the Respondent's owner/president, who gave differing versions of the cell phone incident. Since the owner/president's version constituted substantial evidence (which the ALJ accepted), the ARB was obliged to uphold the ALJ's finding that the Complainant was fired for legitimate, non-discriminatory reasons.

 

BLACKLISTING; COMPLAINANT'S SUBJECTIVE FEELING THAT HE HAD BEEN BLACKLISTED IS INSUFFICIENT TO PROVE ACTUAL BLACKLISTING

 

In Murphy v. Atlas Motor Coaches, Inc. , ARB No. 05-055, ALJ No. 2004-STA-36 (ARB July 31, 2006), the only evidence of blacklisting was the Complainant's "gut-feeling" based on being "kind of brushed off" when he applied for another position at another company and talked to a person who had also formerly worked for the Respondent. Citing caselaw to the effect that a complainant's subjective feelings are insufficient to establish actual blacklisting, the ARB held that the ALJ correctly concluded that the Complainant failed to establish blacklisting.

 

Rougas v. Southeast Airlines, Inc. , ARB No. 04-139, ALJ No. 2004-AIR-3 (ARB July 31, 2006)

Title: Final Decision and Order [Remand to ALJ]

Links: PDF  

Summary

PETITION FOR ARB REVIEW; EXCEPTION NOT SPECIFICALLY URGED IN PETITION FOR REVIEW DEEMED WAIVED

 

In Rougas v. Southeast Airlines, Inc. , ARB No. 04-139, ALJ No. 2004-AIR-3 (ARB July 31, 2006), the ARB observed in a footnote that because the Respondent had not filed a petition for review, it was likely that it was precluded from pursuing on appeal its argument that the Complainant's "admission" that he flew while unfit precluded him from asserting an AIR21 claim. See 29 C.F.R. § 1979.110(a) (any exception not specially urged in petition for review is deemed waived). The ARB also observed that it did not appear based on the facts found thus far that the Complainant had actually admitted to flying while unfit. Because it was remanding the case, however, the ARB deemed it premature to address the Respondent's contention.

 

SCOPE OF ARB REVIEW; ISSUES NOT RAISED BEFORE THE ALJ

 

In Rougas v. Southeast Airlines, Inc. , ARB No. 04-139, ALJ No. 2004-AIR-3 (ARB July 31, 2006), the ARB declined to consider the Complainant's argument that AIR21 is unconstitutional because it does not provide a statutory right to a jury trial. The ARB declined to consider the issue because it had not been raised before the ALJ.

 

COMMUNICATION REQUIREMENT; THEORY THAT COERCION MAY EXCUSE FAILURE TO COMMUNICATE PROTECTED ACTIVITY

 

In Rougas v. Southeast Airlines, Inc. , ARB No. 04-139, ALJ No. 2004-AIR-3 (ARB July 31, 2006), the Complainant appeared to argue on appeal to the ARB that he should be excused from the requirement that the protected activity (in this case, refusal to fly based on illness) be communicated to the Respondent because he was coerced to fly by a threat (which had been immediately retracted) by the Respondent's operations director that the Complainant would be fired if he did not fly. The ARB observed that all the facts had not yet been determined, and that the Complainant had not cited any case law on point as to whether coercion could excuse the failure to comply with the communication requirement. Because it was remanding the case, the ARB did not decide the issue of whether the excuse theory could succeed.

 

PROTECTED ACTIVITY; GENUINE BELIEF IN VIOLATION OF FEDERAL AIR CARRIER SAFETY LAW; OBJECTIVE REASONABLENESS OF BELIEF; SPECIFICITY OF CONCERN

 

In Rougas v. Southeast Airlines, Inc. , ARB No. 04-139, ALJ No. 2004-AIR-3 (ARB July 31, 2006), the ARB remanded to the ALJ for further fact finding where the ALJ had overlooked several circumstances alleged by the Complainant in his post-hearing brief to constitute protected activity. The ARB instructed that the ALJ only needed to look at the activities that the Complainant raised in the post-hearing brief because arguments made for the first time on appeal are waived. The ARB also instructed the ALJ that the governing law for determining whether an activity is protected under AIR21 requires findings on whether:

• the complainant genuinely believed that there was or would be a violation or alleged violation of an FAA order, regulation or standard, or a Federal law relating to air carrier safety

• the concern was objectively reasonable in the circumstances, and

• the complainant expressed his concern "in a manner that was 'specific' with respect to the 'practice, condition, directive or event' giving rise to the concern."

Slip op. at 14.

 

Siekert v. Taylor Made Express, Inc. , ARB No. 05-041, ALJ No. 2004-STA-23 (ARB July 28, 2006)

Title: Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice

Links: PDF  

Summary

Approval of Settlement

 

Allen v. Stewart Enterprises, Inc. , ARB No. 06-081, ALJ Nos. 2004-SOX-60 to 62 (ARB July 27, 2006)

Title: Decision and Order

Links: PDF | 

Summary

PROTECTED ACTIVITY; LACK OF PROOF THAT COMPLAINANTS REASONABLY BELIEVED THAT COMPUTER PROGRAMMING PROBLEM CONSTITUTED A FRAUD ON SHAREHOLDERS

In Allen v. Stewart Enterprises, Inc. , ARB No. 06-081, ALJ Nos. 2004-SOX-60 to 62 (ARB July 27, 2006), the Complainants argued that they engaged in protected activity when they complained to supervisors about the Respondent's failure to correct its computer programming to correctly calculate interest when customers had made a prepayment on principal and requested payoff before the end of the contract term. The ARB observed that "[r]eporting that a company violated its internal accounting controls may constitute SOX-protected activity. Whether a whistleblower's belief is reasonable depends on the knowledge available to a reasonable person in the same circumstances and with the employee's training and experience." Slip op. at 10 (footnotes omitted). The ARB affirmed the ALJ's finding that the Complainants did not reasonably believe that the Respondent's delay in reprogramming constituted a fraud on shareholders. The Complainants knew that the problem was programming related, that the Respondent was actively working on the problem, that manual calculations were used as temporary back ups, and that the Respondent had at one time believed that the problem had been fixed. The ARB also affirmed the ALJ's finding that the Respondent had not been trying to keep the problem a secret.

PROTECTED ACTIVITY; PROVIDING INFORMATION ON VIOLATIONS OF STATE LAW IS NOT, STANDING ALONE, PROTECTED ACTIVITY UNDER SOX

Providing information to management concerning violations of state law, standing alone, is not protected activity under the SOX. Allen v. Stewart Enterprises, Inc. , ARB No. 06-081, ALJ Nos. 2004-SOX-60 to 62 (ARB July 27, 2006) ( Complainants had argued that certain refund delays violated the state laws of Texas and Missouri, but did not express any concern about violations of any federal fraud statutes or regulations).

PROTECTED ACTIVITY; REPORTING OF MERE POSSIBILITY THAT ACT OR OMISSION COULD AFFECT FINANCIAL CONDITION OF THE COMPANY IS NOT SUFFICIENT TO ESTABLISH PROTECTED ACTIVITY UNDER SOX

In Allen v. Stewart Enterprises, Inc. , ARB No. 06-081, ALJ Nos. 2004-SOX-60 to 62 (ARB July 27, 2006), the Complainants argued they engaged in protected activity when they provided information to management that certain refund delays allegedly violated the laws of two states, and could result in a state's revoking the Respondent's license to operate and thus affect shareholders. The ARB held that "the mere possibility that an act or omission could adversely affect [the Respondent's] financial condition and thus affect shareholders is not enough to bring the Complainants' concerns under the SOX's protection." Slip op. at 12 (citation omitted).

PROTECTED ACTIVITY; FAILURE TO ESTABLISH REASONABLE BELIEF OF VIOLATION OF FEDERAL FRAUD STATEMENT OR SEC RULE OR REGULATION

In Allen v. Stewart Enterprises, Inc. , ARB No. 06-081, ALJ Nos. 2004-SOX-60 to 62 (ARB July 27, 2006), the ARB affirmed the ALJ's finding that the Complainants did not engage in protected activity when they reported to management that a problem with the Respondent's computer system that failed to recognize balances on a customer's invoice that third parties owed resulting in the customer receiving an invoice showing an zero balance. The ARB also affirmed the ALJ's finding that one Complainant did not engage in protected activity when she allegedly reported that the Respondent was violating a SEC bulletin prohibiting the recognition of sales revenue before delivery to the customer. In regard to the second concern, the ARB also affirmed the ALJ's finding that one Complainant had not sufficiently complained or raised concerns about the problem to reach the level of protected activity, and that the Complainant herself testified that her concern was based on "internal consolidated financial statements" and that she was not aware of any SEC rule or regulation requiring the filing of such internal documents.

[Editor's note: In Allen , in both instances, the ALJ found that the Complainants beliefs about these problems were not reasonably grounded in a belief that the Respondent was violating a federal fraud statute or "an SEC rule related to fraud against shareholders." Slip op. at 12 and 13. In contrast, in Klopfenstein v. PCC Flow Technologies Holdings, Inc. , ARB No. 04-149, ALJ No. 2004-SOX-11 (ARB May 31, 2006), the ARB held that SOX protection applies to the provision of information regarding not just fraud, but also "violation of � any rule or regulation of the Securities and Exchange Commission."]

ADVERSE ACTION; "TANGIBLE JOB CONSEQUENCES" AND "DETRIMENTAL EFFECT" TESTS

HOSTILE WORK ENVIRONMENT; ORDINARY TRIBULATIONS OF THE WORKPLACE

In Allen v. Stewart Enterprises, Inc. , ARB No. 06-081, ALJ Nos. 2004-SOX-60 to 62 (ARB July 27, 2006), the ARB observed that the ALJ applied both a "tangible job consequences" and a "detrimental effect" test in determining whether the Respondent engaged in adverse employment action against the Complainants. The Board explained that:

   A "tangible job consequence" is one that "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits." Under the "detrimental effect" test, an employment action is adverse if it is reasonably likely to deter employees from making protected disclosures.

Slip op. at 14. The ARB affirmed the ALJ's finding that the Respondent's use of monthly "contract error reports" was not adverse action where there were no tangible job consequences for the Complainants for charged errors, and the reports would not have deterred others from engaging in protected activity. The ARB also affirmed the ALJ's finding that a workspace relocation was not adverse action where the new conditions did not affect the Complainants' ability to perform their work and did not significantly change their employment status, and where the Complainants presented no evidence that the new locations would deter other employees from making protected disclosures.

In regard to the Complainants allegations of a hostile work environment based on "stonewalling" and "friction," the ARB observed that the evidence did not show that such circumstances were pervasive, humiliating or interfered with the Complainants' work performance. The Boar wrote: "These ordinary tribulations of the workplace do not rise to the level of adverse actions because they do not result in tangible job consequences or deter employees from engaging in protected activity." Slip op. at 16.

CONTRIBUTING FACTOR STANDARD

In Allen v. Stewart Enterprises, Inc. , ARB No. 06-081, ALJ Nos. 2004-SOX-60 to 62 (ARB July 27, 2006), the ARB summarized the "contributing factor" standard:

   To prevail under the SOX, the whistleblower must prove by a preponderance of the evidence that her protected activity was a contributing factor in the unfavorable personnel action. A contributing factor is "any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision." The contributing factor standard was "intended to overrule existing case law, which requires a whistleblower to prove that her protected conduct was a 'significant,' 'motivating,' 'substantial,' or 'predominant' factor in a personnel action in order to overturn that action."

Slip op. at 16-17.

DISTRICT COURT ACTION; STAY OF ACTION AND MANDAMUS WHERE COMPLAINANTS TRANSFERRED TO DISTRICT COURT ONLY AFTER LENGTHY ADMINISTRATIVE ADJUDICATION THAT WAS PENDING REVIEW BEFORE THE ARB WHEN TRANSFERRED

 

In Allen v. Stewart Enterprises, Inc. , No. 05-4033 (E.D.La. Apr. 6, 2006) (case below ARB Nos. 06-081, ALJ Nos. 2004-SOX-60 to 62), the ALJ had issued a 109 page decision, which was pending on review at the ARB. The parties had filed briefs, and the Respondent filed a motion to strike the Complainants' brief because it violated the ARB's page limits. The ARB issued an Order to Show Cause. At this point, the Complainants' informed the ARB that they would transfer to federal district court. Before the district court, the Respondent filed a motion for mandamus relief.

 

The district court stayed the district court action, and issued a mandamus for the ARB to reinstate the appeal and issue a decision within 90 days. The court found that it would be absurd to start a whole new trial at this point. The court cited principles of collateral estoppel and issue-law preclusion, and its inherent power to stay a proceeding and issue a mandamus against an agency.

 

Pursuant to the order of mandamus, the ARB issued a decision affirming the ALJ on July 27, 2006. Allen v. Stewart Enterprises, Inc. , ARB No. 06-081, ALJ Nos. 2004-SOX-60 to 62 (ARB July 27, 2006).

 

 

Johnson v. Mechanics and Farmers Bank , ARB No. 06-114, 2006-SOX-19 (ARB July 26, 2006)

Title: Order Dismissing Appeal

Links : Not yet available

Summary

The Board dismissed an appeal that it had erroneously docketed.

 

Neal v. Entergy Nuclear Operations, Inc. , ARB Nos. 06-084, 06-86, ALJ No. 2006-ERA-3 (ARB July 26, 2006)

Title: Final Decision and Order Dismissing Appeals

Links: PDF 

Summary:

In Neal v. Entergy Nuclear Operations, Inc. , ARB Nos. 06-084, 06-86, ALJ No. 2006-ERA-3 (ARB July 26, 2006), the ALJ had erroneously placed a Notice of Appeals Rights at the end of an order ruling on a motion for summary decision. The parties agreed to dismiss the appeal as interlocutory.

 

Chelladurai v. Infinite Solutions, Inc. , ARB No. 03-072, ALJ No. 2003-LCA-4 (ARB July 24, 2006)

Title: Order Denying Reconsideration

Links: PDF  

Summary:

In Chelladurai v. Infinite Solutions, Inc. , ARB No. 03-072, ALJ No. 2003-LCA-4 (ARB July 24, 2006), the Board denieed reconsideration of issues already ruled on in its Final Decision and Order, and of matters immaterial to the case before the Board.

 

Dolan v. EMC Corp. , ARB No. 04-077, ALJ No. 2004-SOX-1 (ARB July 24, 2006)

Title: Final Order Approving the Complainant's Withdrawal of Objections

Links: PDF 

Summary:

VOLUNTARY DISMISSAL; WITHDRAWAL OF OBJECTIONS ON APPPEAL

In Dolan v. EMC Corp. , ARB No. 04-077, ALJ No. 2004-SOX-1 (ARB July 24, 2006), the ARB had granted the Respondent's motion to stay the appeal proceedings pending a settlement negotiation. Later, the Complainant filed a �Withdrawal of Objections� to the OSHA findings and the ALJ's recommended dismissal, asserting that the withdrawal was not based on a settlement. The ARB approved the request and dismissed the appeal.

 

Drake v. Yellow Transportation , ARB No. 05-110, ALJ No. 2005-STA-26 (ARB July 18, 2006)

Title: Final Decision and Order Approving Stipulation of Dismissal Without Prejudice

Links: PDF 

Summary:

In Drake v. Yellow Transportation , ARB No. 05-110, ALJ No. 2005-STA-26 (ARB July 18, 2006), the parties filed a Joint Stipulation of Dismissal Without Prejudice. The ARB approved the request, citing as authority FRCP 41(a)(1)(ii).

 

Drake v. Yellow Transportation , ARB No. 05-067, ALJ No. 2005-STA-3 (ARB July 14, 2006)

Title: Final Decision and Order Approving Withdrawal of Objections to OSHA's Findings

Links: PDF 

Summary:

Where a complainant files a motion to withdraw a STAA whistleblower complaint, such a motion may be treated under the regulations as a motion to withdraw objections to the OSHA findings. In such circumstances, however, the ALJ should confirm with the complainant that he understands that the complaint cannot be withdrawn, and that instead, by withdrawing his objections to OSHA's findings, those findings would stand as affirmed. Drake v. Yellow Transportation , ARB No. 05-067, ALJ No. 2005-STA-3 (ARB July 14, 2006).

 

Barker v. Perma-Fix of Dayton, Inc. , ARB No. 06-045, ALJ No. 2006-SOX-1 (ARB July 10, 2006)

Title: Final Decision and Order Approving Settlement and Dismissing Case With Prejudice

Links: PDF  

Summary:

Approval of settlement.