USDOL/OALJ Reporter: ARB Decision Caselist - July 2018

AFFIRMATIVE DEFENSE; APPLICATION OF CONCEPT OF “INEXTRICABLY INTERTWINED”; ARB HOLDS THAT WHERE PROTECTED ACTIVITY DIRECTLY LED TO THE DISCIPLINE, IT MAKES NO SENSE TO INQUIRE WHETHER DISCIPLINE WOULD HAVE OCCURRED IN THE ABSENCE OF THE PROTECTED ACTIVITY

In Brousil v. BNSF Railway Co., ARB No. 16-025, -031, ALJ No. 2014-FRS-163 (ARB July 9, 2018), the ALJ found that the Complainant engaged in protected activity that contributed to three suspensions, but that the Respondent established by clear and convincing evidence that it would have reprimanded the Complainant absent his protected activity. The only issue on appeal was whether the Respondent met its burden on the affirmative defense. The ARB began by reciting its case-by-case balancing test, citing Speegle v. Stone & Webster Constr., Inc., ARB No. 13-074, ALJ No. 2005-ERA-6, slip op. at 12 (ARB Apr. 25, 2014), Pattenaude v. Tri-Am Transp., LLC, ARB No. 15-007, ALJ No. 2013-STA-37, slip op. at 16-17 (ARB Jan. 12, 2017), and DeFrancesco v. Union R.R. Co., ARB No. 13-057, ALJ No. 2009-FRS-009, slip op. at 9-10 (ARB Sept. 30, 2015). In the instant case, the ARB found that the ALJ had applied the wrong standard. The ALJ found that there was “probable cause” for the Respondent to have investigated the incidents that lead to discipline; the ARB found, however, that “probable cause” is not an applicable standard. The ALJ also focused on the severity of discipline that was applied to the Complainant given his alleged misconduct, the ALJ finding that it was lenient. The ARB, however, noted that a respondent’s “high affirmative defense standard requires proof of what the employer ‘would have done’ not simply what it ‘could have’ done.” Slip op. at 6, citing Speegle v. Stone & Webster Constr., Inc., ARB No. 13-074, ALJ No. 2005-ERA-6, slip op. at 11 (ARB Apr. 25, 2014). The ARB found that the Respondent’s investigation and discipline on two of the incidents were “inextricably intertwined” with the Complainant’s protected activity. The third incident was similar, as the Complainant’s refusal to pull the train close enough to be plugged into shore power was based on his continuing concern about the hazards of train exhaust in confined spaces. The ARB wrote:

   Technically, while the issue of whether the adverse action taken is “inexplicably intertwined” with a complainant’s protected activity is an issue germane to complainant’s burden to prove causation, the ALJ’s failure to properly address it has consequences for the analysis of employer’s burden in proving its affirmative defense. The Board has stated that in cases, such as this, where the protected activity is virtually inseparable from the basis for the imposition of discipline, the fact finder must be careful to assure that the employer has met the high clear and convincing affirmative defense standard. Since the protected activity here directly led to the discipline, it makes no sense to inquire whether discipline would have occurred in the absence of the protected activity. These cases therefore present a challenge for literal application of the affirmative defense.

   When evaluated against the affirmative defense standard and factors identified above, particularly in light of the challenging presence of the inextricably intertwined concept, the ALJ’s affirmative defense finding does not withstand scrutiny. His analysis of BNSF’s affirmative defense relied too heavily on his finding that there was a rational basis for the employer’s decision. And he failed to explain how this finding clearly or convincingly extinguished his earlier finding that BNSF harassed Brousil because of his protected activity.

Slip op. at 7 (footnote omitted).

PROTECTED ACTIVITY; INTERNAL COMPLAINTS ARE COVERED UNDER THE SEAMAN’S PROTECTION ACT, 46 U.S.C. § 2114(a)(1)(C); BEING INTERVIEWED AS A WITNESS TO AN INVESTIGATION ABOUT DRUG USE ON A SHIP MAY BE PROTECTED ACTIVITY

In Meeks v. Genesis Marine, LLC, ARB No. 17-022, ALJ No. 2016-SPA-3 (ARB July 9, 2018), the ALJ dismissed the complaint under the Seaman’s Protection Act, 46 U.S.C.A. § 46 U.S.C.A. § 2114(a)(1)(A) (“SPA”) because the Complainant had not filed a report with the Coast Guard until after he was fired. On appeal, however, the ARB held that internal complaints to the employer are covered under § 2114(a)(1)(C), citing precedent interpreting similar provisions under the CERCLA, FWPCA, SWDA and STAA. In the instant case, because the Complainant had made witness statements to an internal investigator about illicit drug and alcohol use by his ship Captain, the Port Captain and other coworkers, the ARB found that the Complainant had alleged sufficient facts to survive a FRCP 12(b)(6) motion to dismiss because such activity may be protected activity under the SPA. The ARB remanded to the ALJ for reconsideration.

CONTRIBUTORY FACTOR CAUSATION; CAUSATION PRESUMED WHERE COMPLAINANT’S INJURY AND SAFETY REPORTS WERE BOTH CLOSE IN TIME TO THE DISCIPLINE AND INEXTRICABLY INTERTWINED; ARB DISTINGUISHES KUDUK V. BNSF RAILWAY IN WHICH, ALTHOUGH PROTECTED ACTIVITY WAS CLOSE IN TIME, IT WAS COMPLETELY UNRELATED TO THE INCIDENT THAT LED TO HIS DISCHARGE

CONTRIBUTORY FACTOR CAUSATION; ARB QUESTIONS THE VALIDITY OF THE EIGHTH CIRCUIT’S HOLDINGS IN KUDUK V. BNSF RAILWAY THAT IN ESTABLISHING CONTRIBUTORY FACTOR, AN EMPLOYEE MUST PROVE INTENTIONAL RETALIATION, AND THAT TEMPORAL PROXIMITY CANNOT BE SUFFICIENT IN ITSELF TO ESTABLISH CONTRIBUTING FACTOR

In Riley v. Dakota, Minnesota & Eastern Railroad Corp. d/b/a Canadian Pacific, ARB Nos. 16-010, -052, ALJ No. 2014-FRS-44 (ARB July 6, 2018), the ARB affirmed the ALJ’s finding that the Respondent violated the FRSA when it suspended the Complainant without pay for 47 days due to his delay in filing an injury/safety report about a small bruise resulting from a physical assault by a co-worker. The Complainant had waited until he reached his hotel room following the return of the train to the yard to attempt to report the altercation. He was unable to reach his immediate supervisors, so he sent a text message to a coworker about the assault, and then proceeded to fall asleep. The next morning the Complainant was able to get in touch with a manager about the attack, and eventually to file a formal complaint about the attack. Both employees were pulled out of service, and, after a 47 day investigation, the Respondent concluded that the Complainant should have reported the incident. The punishment was forfeiture of pay for the 47 days the Complainant had spent out of service. The ALJ rejected the Respondent’s contention that the Complainant’s failure to report the bruise showed bad faith. Rather, the ALJ credited the Complainant’s contention that he was in fear of the coworker until he returned to the hotel, that he tried and failed to report the incident immediately, and did report it as soon as he woke the next morning. The ARB affirmed these findings.

On appeal, the ARB affirmed the ALJ’s finding that causation was presumed because it was impossible to separate the cause of the Complainant’s discipline-for-filing-his-injury-report-late from his protected activity of filing the injury report. The ALJ found the two to be inextricably intertwined. The ARB quoted from the materially similar case of Henderson v. Wheeling & Lake Erie Railway, ARB No. 11-013, ALJ No. 2010-FRS-12 (ARB Oct. 26, 2012), in which the ARB had explained why disciplinary action taken against an employee for late injury reporting establishes presumptive causation as a matter of law. The ARB in Henderson had found that “viewing the ‘untimely filing of medical injury’ as an ‘independent’ ground for termination could easily be used as a pretext for eviscerating protection for injured employees. Slip op. at 5 quoting Henderson, slip op. at 14.

The Respondent cited the Eighth Circuit’s decision in Kuduk v. BNSF Railway, Co., 768 F.3d 786, 792 (8th Cir .2014), and the circuit cases that follow Kuduk, to argue that more than a temporal connection between the protected conduct and the adverse employment action is required to present a genuine factual issue on retaliation. The Respondent noted that Kuduk requires a complainant to prove intentional retaliation. The ARB, however, found the Kuduk was not analogous because in that case, while the complainant’s protected activity was close in time, it was completely unrelated to the incident that led to his discharge. Here, the Complainant’s injury and safety reports were both close in time to his discipline and inextricably intertwined.

In a footnote, the ARB observed that it questioned the court’s holding in Kuduk that in establishing contributory factor, an employee must prove intentional retaliation. The ARB stated that this holding was conclusory and contrary to the weight of precedent interpreting the contributing factor element of most whistleblower laws. The ARB further noted that nothing in the FRSA requires a complainant to establish a retaliatory motive. The ARB also found “curious” the court’s statement in Kuduk that rejects the notion that temporal proximity, without more, is sufficient to establish a prima facie case. The ARB cited the regulations, and Lockheed Martin Corp. v. ARB, 717 F.3d 1121, 1136 (10th Cir. 2013)(“Temporal proximity between the protected activity and adverse employment action may alone be sufficient to satisfy the contributing factor test.”).

[Nuclear & Environmental Digest XI A 2 a]
CONTRIBUTING FACTOR CAUSATION; COMPLAINANT FOUND TO HAVE BEEN FIRED SOLELY FOR INSUBORDINATION BECAUSE HE FAILED TO TURN OVER SURREPTITIOUS RECORDINGS MADE ON THE WORKSITE THAT MANAGEMENT BELIEVED WERE MADE IN VIOLATION OF STATE LAW AND RESPONDENT’S CODE OF CONDUCT

In Franchini v. Argonne National Laboratory, ARB No. 18-009, ALJ No. 2009-ERA-14 (ARB July 5, 2018), the ARB found that substantial evidence supported the ALJ’s finding that the Complainant failed to prove, by a preponderance of the evidence, that his protected activity was a contributing factor in the termination of his employment. The Complainant had been directed to attend a meeting to discuss violations of sick-leave policies. An employee relations manager noticed that the Complainant appeared to be recording the meeting. The Complainant conceded that he was recording the meeting, and stated that for several years he made close to 100 recordings of up to 50 people including DOE personnel, union personnel, and Argonne medical personnel because he wanted to capture instances of harassment and dishonesty. The Respondent’s managers believed that surreptitious recording of coworkers was a violation of Illinois law. They demanded that the Complainant turn in all recordings and informed the Complainant that failure to do so would be considered insubordination. After repeated attempts to get the Complainant to produce the recordings, the Respondent terminated the Complainant’s employment.

Following a hearing on remand, the ALJ found that the Complainant had engaged in protected activity but that he was fired solely for insubordination in failing to return the tapes after being asked multiple times to do so.

On appeal, the ARB indicated that the Complainant’s evidence on causation may have been better supported if it had been presented by an attorney, and noted that the ALJ had not entertained the Complainant’s lack of focus and “may have prematurely cut-off [the Complainant’s] lines of questioning and testimony.” The ARB, however, noted the ALJ’s broad discretion to manage hearings, and indicated that it would decline to speculate on the Complainant’s behalf to find a viable ground for contributing factor causation. The ARB found that substantial evidence supported the ALJ’s finding that, under a preponderance of the evidence standard, the Complainant failed to prove that his protected activity was a contributing factor in his termination. The Complainant had agreed to return the tapes but did not. On more than one occasion the Complainant was asked in definitive language to turn in the tapes and warned of the consequences if he did not. While the Respondent did not have a formal policy prohibiting surreptitious recording on premises, it was able to cite a policy incorporating lawful activity into its Code of Conduct. It believed that the Complainant’s recordings violated Illinois law. Moreover, the Complainant’s termination was consistent with how the Respondent treated another employee who had made surreptitious recordings; that employee was not terminated because he turned in the recordings and instead only received a 5-day suspension. Here, an employee relations manager testified that if the Complainant had turned in the tapes, he would not have been fired.

PROTECTED ACTIVITY; IN ORDER TO SURVIVE MOTION FOR SUMMARY DECISION, COMPLAINANT MUST ALLEGE SPECIFIC FACTS OR PRESENT EVIDENCE TO SHOW HER OBJECTIVELY REASONABLE BELIEF THAT HER DISCLOSURES VIOLATED PROTECTED CATEGORIES ENUMERATED IN SOX; ALLEGATION THAT TIP POLICY WAS A MISAPPROPRIATION INSUFFICIENT TO MAKE THIS SHOWING

In Micallef v. Harrah's Ricon Casino & Resort, ARB No. 16-095, ALJ No. 2015-SOX-25 (ARB July 5, 2018), the ARB affirmed the ALJ’s grant of summary decision on the issue of protected activity where the Complainant failed to allege specific facts or present evidence to show her objectively reasonable belief that her disclosures related to the protected categories of law enumerated in SOX. The complaint alleged that the Respondent violated SOX by terminating her employment because she reported: (1) a work injury; (2) occupational health and safety concerns, such as fire hazards near oxygen tanks and (3) misappropriation of tips owed to employees. On appeal, the Complainant contended that her complaints “about the distribution of employees’ tips in the workplace were ‘directly related to fraud. ’ She asserted that the ‘intentional act of misappropriating tips from dealers is not legal and is a form of embezzlement, “skimming” as referred by the FBI. ’ ” Slip op. at 4 (footnote omitted). The ARB, however, agreed with the ALJ that the Complainant had to have alleged and supported a reasonable belief that such violated the SOX. The ARB wrote:

The ALJ acknowledged that Micallef’s complaints about Harrah’s tip policy might have “some relevance” to its financial state; however, he ultimately found that she failed to present evidence that, they “relate[d] to any of the categories of fraud or securities violations” listed in the SOX. As the ALJ explained “SOX does not protect [an employee] from retaliation for reporting ‘illegal’ activities of any kind; ” instead, a complainant must allege and support a reasonable belief that her disclosures relate to one of the enumerated categories of fraud or securities violation under the SOX.

Slip op. at 5 (footnote omitted).