USDOL/OALJ Reporter: ARB Decision Caselist -- August 2007

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Summary :

Approval of settlement agreement.

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Summary :

Approval of settlement agreement.

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Summary :

[Nuclear and Environmental Digest XXI A]
COLLATERAL ESTOPPEL; REFUSAL TO HIRE; APPLICATION FOR SAME JOB DURING APPEAL OF FIRST CASE

In Hasan v. Sargent & Lundy , ARB No. 05-99, ALJ No. 2002-ERA-32 (ARB Aug. 31, 2007), the Complainant had filed an earlier whistleblower complaint grounded in a refusal to hire theory.� The ALJ in� the earlier case found that the Complainant failed to establish the requisite element of such a complaint of being qualified for the offered position. Moreover the ALJ in� the earlier case found that the Respondent legitimately refused to hire the Complainant for any position.� Before the ALJ had issued a decision in the first case, the Complainant sent another job application to the Respondent and then filed a new ERA whistleblower complaint.� The ALJ in the second case continued the matter until the appeals in the first case were completed.� Those appeals resulted in affirmance of the first ALJ's decision.� The second ALJ therefore recommended dismissal based on collateral estoppel. The ARB agreed.� The ARB rejected the Complainant's argument that he was applying for different jobs, and therefore different issues were being litigated.� The ARB found that record established that in both cases the Complainant was applying for engineering jobs and that the issues were identical, or at worst, substantially the same.

[Nuclear and Environmental Digest IX B 4]
MISCONDUCT OF THE COMPLAINT; STRICKING OF ABUSIVE BRIEF FILED AFTER PRIOR WARNINGS

After receiving strong and unambiguous warnings in prior cases about the filing of abusive and vituperative pleadings, the Complainant again filed an appellate brief containing abusive language in Hasan v. Sargent & Lundy , ARB No. 05-99, ALJ No. 2002-ERA-32 (ARB Aug. 31, 2007), and the Respondent filed a motion to strike.� The Board found that the Complainant's conduct in filing the brief was not so contumacious and egregious as to warrant dismissal of his complaint, but that it could not excuse the abusive and vituperative pleading, and therefore struck the brief.

[Nuclear and Environmental Digest IX B 4]
PRO SE PLEADING; WAIVER OF ARGUMENT NOT DEVELOPED IN APPELLATE BRIEF

Although pro se proceedings are liberally construed, the ARB must be able to discern cogent arguments in the appellate brief.� A party must develop an argument with citation to authority.� Where a party fails to develop the factual basis of a claim on appeal, and instead merely draws and relies on a bare conclusion, the ARB will deem the argument waived.� Hasan v. Sargent & Lundy , ARB No. 05-99, ALJ No. 2002-ERA-32 (ARB Aug. 31, 2007).

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Summary :

Approval of settlement agreement.

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[Nuclear and Environmental Digest IX B 2]
ISSUES RAISED ONLY IN A PERFUNCTORY MANNER MAY BE CONSIDERED WAIVED

In Patrickson v. Entergy Nuclear Operations, Inc. , ARB Nos. 05-069 and 05-070, ALJ No. 2003-ERA-22 (ARB Aug. 32, 2007), the Complainant argued on appeal that the ALJ erred in not addressing the issue of hostile work environment, which was a contention raised in the Complainant's post-hearing brief. The ARB found that the Complainant had not cited relevant legal authority or identified the legal standard for a hostile work environment claim. Nor had he done so before the Board. Accordingly, the ARB declined to consider the issue on appeal, citing federal court authority to the effect that issues adverted to in a perfunctory manner are deemed waived.

[Nuclear and Environmental Digest XIII B 17]
ADVERSE ACTION; PIP MEETINGS WHICH OBJECTIVELY QUERIED THE COMPLAINANT ABOUT HIS PROGRESS

In Patrickson v. Entergy Nuclear Operations, Inc. , ARB Nos. 05-069 and 05-070, ALJ No. 2003-ERA-22 (ARB Aug. 32, 2007), the ALJ found that the requirement that the Complainant attend �hostile, derogatory, and negative� bi-weekly meetings on a PIP constituted adverse employment action. The ARB, however, listened to tape recordings that the Complainant made of the meetings and examined notes taken by one of the supervisors, and found that although the meetings would have been difficult and very stressful, they were not hostile, derogatory and negative. The recordings revealed that the supervisors objectively queried the Complainant about his program: �The supervisors are not loud. They do not sound angry. They are objective.� USDOL/OALJ Reporter at 11. The ARB found that the bi-weekly meetings did not constitute materially adverse action.

[Nuclear and Environmental Digest XI C 2 b]
PRETEXT; DISPARATE TREATMENT

In Patrickson v. Entergy Nuclear Operations, Inc. , ARB Nos. 05-069 and 05-070, ALJ No. 2003-ERA-22 (ARB Aug. 32, 2007), the Complainant had been placed on a PIP, and later discharged when the Respondent concluded that he was not meeting his goals and that his performance was deteriorating. The Complainant claimed pretext. The ARB, however, found that the Complainant failed to prove pretext by a preponderance of the evidence because the Complainant presented no proof or even argument that any of the reasons given by the Respondent for the discharge were false. The ARB also found that the record did not support the ALJ's conclusion that the Complainant had been treated differently from similarly situated employees. The Respondent had not dismissed another employee who had been on a PIP for longer than the Complainant, but the ARB found that this employee was not similarly situated, being in a different job and having made steady improvement and having met all of his deadlines, unlike the Complainant. Although other employees had not been discharged for failing to complete health systems reports on time, they did not have the additional performance problems that the Complainant had exhibited. Finally, other employees had not taken projects with them when they changed departments, whereas the Complainant had. However, the ARB found that the record showed that the Complainant had volunteered to take the project when he transferred.

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Summary :

DUE PROCESS; FAILURE TO PROVIDE ADEQUATE OPPORTUNITY FOR ALL NAMED RESPONDENTS TO RESPOND TO COMPLAINANT�S FILING BASED ON MISTAKEN BELIEF THAT THEY HAD BEEN DISCHARGED AS RESPONDENTS

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int�l Union (PACE) , ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), the Complainant named ten organizations and seven individuals as respondents in her AIR21, SOX and environmental whistleblower complaint.� OSHA concluded that the complaint related factually only to PACE (which had not been named as a respondent), dismissed the named Respondents, and seemingly substituted PACE as the Respondent.� However, the OSHA decision was mailed to a PACE Local, and not to PACE itself. After a hearing had been requested, the ALJ issued an order directing PACE (but not the originally named Respondents) to respond to any pleadings filed by the Complainant.� It was clear that the ALJ treated PACE as the sole Respondent, although she served the Local.� The ALJ ultimately concluded that the Complainant's complaint did not state a claim upon which relief could be granted.� When the appeal was docketed before the ARB, the issue of whether all of the named parties were properly served became apparent when PACE filed a letter stating that it had not been served with the ARB's briefing order. The ARB concluded that (together with some analytical flaws in the ALJ's analysis) the cumulative impact of the failure to permit all named respondents to have an opportunity to respond to the Complainant's pleadings necessitated a remand.� The Board stated that �[w]e think it preferable to avoid any due process issue by deferring any ruling on whether the complaint states a claim until an opportunity to respond has been extended to all those respondents who remain in the action. Slip op. at 7.� The ARB observed that the ALJ may have believed that OSHA's dismissal of the originally named Respondents had eliminated them from the proceeding.� This was a mistake because upon the filing of a hearing request, the OSHA determination became inoperative.

BANKRUPTCY; RESPONDENTS WHO PASSED THROUGH BANKRUPTCY MAY BE ASSUMED TO HAVE CLAIMS AGAINST THEM EXTINGUISHED UNLESS THE COMPLAINANT CAN SHOW OTHERWISE

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int�l Union (PACE) , ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), several airlines named in the Complainant's whistleblower complaint filed for bankruptcy between the time the ARB accepted the matter for review and the date it received the record from the ALJ, and the ARB consequently stayed the appeal.� Once all entities emerged from bankruptcy, the ARB resumed consideration of the appeal.� It found that the airlines that passed through bankruptcy would be considered to be discharged and dismissed from the action unless the Complainant provided evidence showing otherwise.

FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED; BELL ATLANTIC /FRCP 12(b)(6) STANDARD

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int�l Union (PACE) , ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), the ARB held that proper standard for determining whether a whistleblower complaint states a claim is FRCP 12(b)(6).� The ARB noted that the Supreme Court had recently clarified 12(b)(6) in Bell Atlantic Corp. v. Twombly , 550 U.S. __, 127 S.Ct. 1955, 1964-65 (2007). Thus, a complaint does not need detailed factual allegations, but it must provide factual allegations that indicate the grounds for the complaint.� While the standard remains very charitable, a 12(b)(6) dismissal is no longer reserved for cases in which the allegations of the complaint itself demonstrate the lack of a valid claim.� Rather, the complaint itself must contain enough factual matter to suggest that the alleged violation is plausible.� Because a complainant does not need to prove her factual allegations in response to a 12(b)(6) motion, a decision that the complaint states a claim does not mean that the complainant has proven the elements of her claim.

PROTECTED ACTIVITY; FILING OF DISCOVERY IN A PRIOR WHISTLEBLOWER PROCEEDING

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int�l Union (PACE) , ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), the ALJ erred in concluding that serving a discovery request could not constitute protected activity.� The ARB held that �it is possible that serving a discovery request potentially could constitute protected activity if the request was part of a whistleblower complaint. Slip op. at 10 (footnote omitted).�

ADVERSE ACTION; REJECTION OF TANGIBLE CONSEQUENCE STANDARD; ADOPTION OF MATERIALLY ADVERSE STANDARD

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int�l Union (PACE) , ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), the ARB retreated from the �tangible consequence� standard for actionable adverse employment action.� Rather, the ARB stated that the correct standard, as clarified by the Supreme Court in Burlington Northern Ry. Co. v. White , 548 U.S. __, 126 S.Ct. 2405, 2409 (2006), is whether the actions were �materially adverse�:� that is, �harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination. Slip op. at 12, quoting Burlington .� The ARB noted that it had already applied this standard to AIR21 cases, and that it is also appropriate to apply it to cases arising under SOX and the environmental acts.� In the instant case, the ARB found that it was possible that the Complainant's allegations meet the Burlington standard, even if they did not rise to the level of a �tangible consequence� (which was the standard applied by the ALJ in her 2004 decision).�

ALJ�S AUTHORITY TO REQUIRE COMPLAINANT TO CLEARLY ARTICULATE HER CASE

When confronted with a prolix, rambling complaint, an ALJ has the authority to require the complainant to produce a clear articulation of her case.� Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int�l Union (PACE) , ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007).

SERVICE OF ALJ BY FAX AND REGULAR AIL, BUT COMPLAINANT ONLY BY REGULAR MAIL IS NOT SANCTIONABLE, AND IS NOT EX PARTE COMMUNICATION

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int�l Union (PACE) , ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), the ARB denied the Complainant's motion to sanction a Respondent and its attorney for allegedly engaging in ex parte communications when it filed a motion to dismiss with the ALJ by fax and regular mail, while serving the Complainant only by regular mail.� The ARB found that the Complainant had pointed to no applicable authority to establish that an ex parte communication occurs merely because the same type of service was not used on all parties.

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Summary :

Approval of settlement agreement.

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Summary :

[Nuclear and Environmental Digest XI D 2]
DUAL OR MIXED MOTIVE ANALYSIS; ALJ NEED NOT REACH SUCH ANALYSIS WHERE COMPLAINANT FAILED TO ESTABLISH BY A PREPONDERANCE OF THE EVIDENCE THAT HIS PROTECTED ACTIVITY EITHER MOTIVATED OR CONTRIBUTED TO THE ADVERSE ACTION

In Seetharaman v. Stone & Webster, Inc. , ARB No. 06-024, ALJ No. 2003-CAA-4 (ARB Aug. 31, 2007), the Complainant contended on appeal that the ALJ erred when he did not employ mixed motive analysis and used the same legal standards for both the ERA and environmental laws.� The ARB found, however, that the Complainant failed to introduce any credible evidence to rebut the Respondent's evidence that he was included in a RIF because he was the least productive member of his group.� Thus, he had failed to establish by a preponderance of the evidence that his protected activity either motivated or contributed to the adverse action, and therefore the ALJ had no reason to engage in dual motive analysis.

[Nuclear and Environmental Digest XIII B 18]
ADVERSE EMPLOYMENT ACTION; FAILURE TO PURSUE COMPLAINANT�S BUSINESS LEADS

In Seetharaman v. Stone & Webster, Inc. , ARB No. 06-024, ALJ No. 2003-CAA-4 (ARB Aug. 31, 2007), the ARB affirmed the ALJ's finding that the Respondent's failure to pursue business opportunities brought to the company's attention by the Complainant did not constitute adverse employment action.� The ALJ had found that the Complainant had not presented any evidence that the Respondent's alleged indifference to toward the Complainant's business leads limited his growth potential in the company and/or was the result of whistleblowing activities.� Seetharaman v. Stone & Webster, Inc. , 2003-CAA-4, slip op. at 11-12 (ALJ Nov. 30, 2005).

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Summary :

[Nuclear and Environmental Digest XII C 4]
REASONABLE BELIEF THAT RESPONDENT WAS VIOLATING EPA REGULATIONS; COMPLAINANT�S BELIEF FOUND NOT TO BE REASONABLE UNDER THE FACTS OF THE CASE; SPECULATION CANNOT PROVIDE A BASIS FOR A REASONABLE BELIEF

In Knox v. U.S. Dept. of the Interior , ARB No. 07-105, ALJ No. 2001-CAA-3 (ARB Aug. 30, 2007), the Fourth Circuit instructed the ARB on remand to reconsider the record and decide if the Complainant adequately proved that he reasonably believed that the Respondent was violating EPA regulations and thus engaged in CAA-protected activity.� The Complainant had been worried about asbestos at the Harper's Ferry Job Corps Center.� The ARB found that the Complainant had presented some evidence that could suggest that he believed that the Respondent violated 40 C.F.R. §� 61.145, 61.150, the regulations that cover reporting, handling, and disposing of asbestos before and during building demolition and renovation.� The ARB found that the only evidence that the Complainant presented that directly pertained to renovation-demolition was his testimony that he was aware that, before he began to work at the Center, construction work had been performed on the roofs of student dormitories. The ARB found, however, that the Complainant did not know whether those roofs contained asbestos, and therefore he could not have reasonably believed that that the Respondent had renovated buildings containing asbestos.� The Complainant also presented the testimony of a maintenance worker at the Center who told the Complainant that he had removed tile and drywall that might have had asbestos.� The ARB, however, found that this testimony did not establish a reasonable belief that the Respondent was renovating building containing asbestos because the maintenance worker had not indicated that he renovated to the extent that he disturbed, sanded, drilled or otherwise damaged areas containing asbestos, which, according to a Survey Report, was what would have made the asbestos hazardous.� Furthermore, the maintenance worker admitted that he did not know the difference between dust and asbestos, and had only told the Complainant that he had removed tile and drywall that �might have had asbestos.� In addition, the Respondent's regional safety director testified that he had talked to the maintenance worker and determined that the location he been working in was not an area having asbestos.

In addition, the ARB received some newly obtained evidence indicating that the Complainant had speculated that students and employees removed and disposed of asbestos floor tiles in the summer of 1998.� The ARB held that speculation could not be the basis for a reasonable belief, and therefore the newly admitted evidence did not demonstrate that the Complainant reasonably believed that the Respondent violated the EPA renovation-demolition regulation.

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Summary :

[STAA Digest II B d ii]
TIMELINESS OF COMPLAINT; FILING OF COMPLAINT WITH STATE OSHA AND DOT OFFICES RATHER THAN FEDERAL OSHA OFFICE; WRONG FORUM GROUND FOR EQUITABLE TOLLING

In Miller v. Basic Drilling Co. , ARB No. 05-011, ALJ No. 2005-STA-20 (ARB Aug. 30, 2007), OSHA had dismissed the complaint as untimely.� The Complainant sought a hearing, and the assigned ALJ issued a Notice requiring the parties to address the timeliness issue.� The Complainant responded with the allegation that he had talked with the Arizona OSHA (ADOSH) office about the circumstances leading to his discharge, and was told he would be called back.� He also alleged that he had called an 800 number that he believed to be the general OSHA number, had called the Arizona DOT (ADOT), and the Arizona public safety department. The ALJ issued a recommended decision, finding that the verbal complaint to ADOSH was within the 180 day STAA limitations period, but that contacts with ADOSH and ADOT could not satisfy the STAA filing deadline because employees of those agencies are not federal OSHA officials.� Moreover, the ALJ found that the 800 number called by the Complainant was NIOSH's number and not OSHA's.� The ARB found that the ALJ erred because he had not specifically analyzed the matter under the �wrong forum� ground for equitable tolling.� The ARB remanded for the ALJ to consider whether the Complainant's contacts with the state agencies entitled him to equitable tolling.

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Summary :

[Nuclear and Environmental Digest XVIII C 2]
DISMISSAL FOR FAILURE TO RESPOND TO MOTION FOR SUMMARY DECISION; OLD PART 24 REQUIRED ORDER TO SHOW CAUSE PRIOR TO DISMISSAL; DICTA SUGGESTING THAT ALJ�S SHOULD CONTINUE TO EMPLOY ORDERS TO SHOW CAUSE PRIOR TO DISMISSING A COMPLAINT

In Yarbrough v. U.S. Dept. of the Army, Chemical Agents Munitions Disposal System , ARB No. 05-117, ALJ No. 2004-SDW-3 (ARB Aug. 30, 2007), the ARB held that the ALJ was required under the rule then in effect at 29 C.F.R. § 24.6(e)(4) to issue an order to show cause prior to dismissing a whistleblower complaint for failure to respond to the Respondent's motion for summary decision.� The ALJ had cited a local rule of a federal district court that provided that a failure to respond to a motion shall constitute consent to the granting of the motion.� The ARB, however, found no such provision in the whistleblower regulation. While the matter was on appeal, the Department had issued amendments to Part 24, the effect of which is that 29 C.F.R. Part 18, and specifically Rule 18.6(d)(2)(v) would now apply.� The ARB declined to decide whether that rule would require an order to show cause prior to a dismissal, but observed that ALJs routinely issue such orders or warnings specifying the consequences of failure to comply prior to dismissing cases under the Part 18 rules.

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Summary :

Withdrawal of appeal.

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[STAA Digest IV B 2 c]
LEGITIMATE NON-DISCRIMINATORY REASON FOR TERMINATION OF EMPLOYMENT; COMPLAINANT�S BIZARRE AND DISRUPTIVE BEHAVIOR

In Frausto v. Beall Concrete Enterprises, Ltd. , ARB No. 05-122, ALJ No. 2005-STA-9 (ARB Aug. 24, 2007), the ARB affirmed the ALJ's recommended dismissal of the Complainant's STAA complaint where overwhelming and credible evidence supported the Respondent's contention that it terminated the Complainant's employment because of his bizarre and disruptive behavior.� The Complainant failed to prove that this reason was pretext.

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Summary :

Dismissal of appeal on grounds of abandonment. Parties did not respond to the ARB's Order to Show Cause issued three years after the ARB had stayed the appeal on the basis of the Respondent's having filed for bankruptcy.

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WITHDRAWAL OF APPEAL TO THE ARB; ALJ�S DECISION BECOMES FINAL DECISION OF THE SECRETARY

In SOX cases, if the ARB grants a party's request to dismiss its appeal, the ALJ's decision becomes the final decision of the Secretary of Labor pursuant to 29 C.F.R. § 1980.109(c).� Lowe v. Terminix International Co., L.P. , ARB No. 07-004, ALJ No. 2006-SOX-89 (ARB Aug. 23, 2007).

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Summary :

[STAA Digest II L]
BANKRUPTCY; FAILURE OF PARTIES TO COMMUNICATE WITH THE BOARD FOLLOWING RESOLUTION OF BANKRUPTCY PROCEEDING OR TO RESPOND TO ORDER TO SHOW CAUSE

In Taylor v. Express One International, Inc. , ARB No. 02-054, ALJ No. 2001-AIR-2 (ARB Aug. 23, 2007), the ARB had stayed an appeal because the Respondent had entered bankruptcy.� After the Board received a copy of an Agreed Order concluding the Respondent's bankruptcy case, and neither party communicated with the Board, the Board issued an Order to Show Cause why the case should not be dismissed on grounds of abandonment.� Neither party responded, and the Board dismissed the appeal.

To the same effect:� Carmichael v. Consolidated Freightways Corp. of Delaware, Inc. , ARB No. 02-081, ALJ No. 2000-STA-53 (ARB Aug. 23, 2007).

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Summary :

Approval of settlement agreement.

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