USDOL/OALJ Reporter: ARB Decision Caselist -- August 2008

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Summary :

COVERED EMPLOYER; PUBLICLY TRADED PARENT COMPANY NEED NOT BE NAMED AS A RESPONDENT AS LONG AS AT LEAST ONE NAMED RESPONDENT IS AN OFFICER, EMPLOYEE, CONTRACTOR, SUBCONTRACTOR, OR AGENT OF SUCH A COMPANY

In Andrews v. ING North America Insurance Corp. , ARB No. 06-071, ALJ Nos. 2005-SOX-50 and 51 (ARB Aug. 29, 2008), the Complainants alleged that the company that employed them and from which they had been terminated, along with several individuals, retaliated against them in violation of the SOX. That company was a subsidiary four levels remote from the publicly traded parent company. OSHA treated the company as the sole Respondent, and dismissed on the ground that the Respondent was not a covered employer under SOX. Before the ALJ, the Complainants moved to add the parent company as a Respondent only the day before the hearing. The ALJ ruled that the Complainants had "abandoned that motion." Following a full hearing and briefing on the coverage issue, the ALJ found that the Complainants had failed to establish that the Respondent was a covered employer or that it had acted as an agent of the parent.

The ARB stated that the ALJ had relied upon its decision in Flake v. New World Pasta Co. , ARB No. 03-126, ALJ No. 2003-SOX-18 (ARB Feb. 25, 2004), in concluding that the SOX does not provide a cause of action against a non-public subsidiary. The ARB stated that it had rejected such a reading of Flake and also the proposition that a subsidiary cannot by definition be an agent, in Klopfenstein v. PCC Flow Techs. Holdings, Inc. , ARB No. 04-149, ALJ No. 2004-SOX-011 (ARB May 31, 2006). The ARB noted that its decision in Klopfenstein , had been issued after the ALJ ruled in this case. The ARB remanded, stating that "on remand the Complainants must be given an opportunity to prove by a preponderance of evidence that [the parent company] is a covered company and that [the named Respondent] acted as its agent." The ARB also wrote:

   Furthermore, SOX does not require a complainant to name a corporate respondent that is itself "'registered under section 12, or that is required to file reports under section 15(d)' so long as the complainant names at least one respondent who is covered under the Act as an "officer, employee, contractor, subcontractor, or agent' of such a company." Thus, since they do not have to name ING Groep, N.V. as a respondent, the issue whether or not the Complainants abandoned their motion to amend the complaint to name ING Groep, N.V. is moot.

USDOL/OALJ Reporter at 5 (footnote omitted).

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Summary :

[Nuclear and Environmental Whistleblower Digest XX B 8]
BANKRUPTCY; NEW CLAIM UNDER DIFFERENT WHISTLEBLOWER LAW ENJOINED BY BANKRUPTCY ORDER WHERE IT AROSE FROM THE SAME SET OF FACTS AS THE EARLIER CLAIM; GOVERNMENT UNIT EXCEPTION NOT APPLICABLE

In Hafer v. United Air Lines, Inc. , ARB No. 06-132, ALJ No. 2006-CAA-6 (ARB Aug. 29, 2008), the Complainant's earlier AIR21 complaint had been found to be discharged in bankruptcy. The Complainant later filed a new CAA whistleblower complaint alleging that in a pleading in his AIR 21 case the Respondent had admitted that "it had indeed fired [him] for revealing its violations of the Federal Clean Air Act."

The ARB found that the Complainant's CAA claim arose from the same set of facts that gave rise to his AIR 21 claim, that the bankruptcy court's Confirmation Order discharged the Respondent from the Complainant's AIR 21 claim, and that the Confirmation Order enjoined the Complainant from pursuing the instant CAA complaint.

The Complainant also argued that the bankruptcy automatic stay provision has an "governmental unit exception" that the ARB should apply to participate as the prosecuting party in the matter. The ARB rejected this contention holding that the "government unit exception does not apply where a complainant has brought a case as an individual. . . . [W]hen an administrative agency is acting in a quasi-judicial capacity, seeking to adjudicate private rights rather than effectuate public policy, the governmental unit exception is inapplicable." USDOL/OALJ Reporter at 6 (footnote omitted).

[Nuclear and Environmental Whistleblower Digest III A 5]
TIMELINESS OF COMPLAINT; ALLEGED ADMISSION OF WRONGDOING IN LEGAL PLEADING FOUR YEARS AFTER TERMINATION WAS UNTIMELY AND WAS NOT A NEW ACT OF DISCRIMINATION

In Hafer v. United Air Lines, Inc. , ARB No. 06-132, ALJ No. 2006-CAA-6 (ARB Aug. 29, 2008), the Complainant's earlier AIR21 complaint had been found to be discharged in bankruptcy. The Complainant later filed a new CAA whistleblower complaint alleging that in a pleading in his AIR 21 case the Respondent admitted that "it had indeed fired [him] for revealing its violations of the Federal Clean Air Act." In addition to finding that the new claim was enjoined by the bankruptcy discharge, the ARB found that it was not timely, having been filed more than four years after the Complainant had been terminated. The ARB rejected the Complainant's argument that the admission was a new act of discrimination. The ARB also found no grounds for equitable tolling.

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Summary :

[Nuclear and Environmental Whistleblower Digest VIII B 2]
ARB REVIEW OF QUESTIONS OF FACT; NEW REGULATIONS PROVIDE FOR SUBSTANTIAL EVIDENCE REVIEW

In Pierce v. United States Enrichment Corp. , ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), when the parties appealed and filed their briefs with the ARB, the ARB reviewed questions of fact under the ERA de novo; thereafter DOL published a new regulation calling for substantial evidence review. Because neither party addressed the standard of review in its briefs or in a supplemental brief, the ARB stated that it assumed that neither party considered the change to be material, and that in any event, applying either standard of review, it concluded that the Respondent violated the ERA whistleblower provision.

[Nuclear and Environmental Whistleblower Digest XII D 5]
PROTECTED ACTIVITY; MERE ATTENDANCE AT A MEETING WITH THE NRC IS NOT PROTECTED ACTIVITY; COMPLAINANT'S DUTIES AS A QC MANAGER DO NOT INHERENTLY IMPLICATE PROTECTED ACTIVITY

In Pierce v. United States Enrichment Corp. , ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB agreed for the most part with the ALJ's findings that the Complainant engaged in protected activity, but noted disagreement with the ALJ's finding that the Complainant engaged in protected activity when he complained about a supervisor's behavior in a meeting and when he participated in two NRC task force meetings. The ARB found that the Complainant had not

. . . engaged in any action during these meetings that was motivated by a belief that USEC was violating any nuclear laws or regulations, ignoring safety procedures, or assuming unacceptable risks that would lead us to conclude that he raised nuclear safety definitively and specifically. We cannot conclude that his mere attendance at these meetings, without more, implicated safety definitively and specifically. We also do not agree with the ALJ's conclusion that Pierce's duties as a QC Manager inherently involved protected activity. This conclusion directly conflicts with the decision of the Sixth Circuit in Sasse v. U.S. Dep't of Labor , 409 F.3d 773 (6th Cir. 2005).

USDOL/OALJ Reporter at n.20.

[Nuclear and Environmental Whistleblower Digest XI A 2 b ii]
TEMPORAL PROXIMITY; MAY BE SUFFICIENT TO CARRY COMPLAINANT'S BURDEN OF PROOF WHERE EMPLOYER'S EXPLANATIONS FOR ADVERSE ACTION ARE NOT CREDIBLE

In Pierce v. United States Enrichment Corp. , ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB found that temporal proximity between the Complainant's protected activity and the adverse employment action were sufficient to meet the Complainant's burden of proof to demonstrate that his protected activity was a contributing factor in the adverse action where the Employer's explanations of legitimate reasons for the adverse action where not credible. A significant factor in the ARB's view was the Respondent's unwillingness to permit the Complainant to complete his performance improvement plan; the ARB found that unwillingness to evidence discriminatory motive. Another factor was the Respondent's greater concern with QC inspectors' performance of an allegedly unauthorized test of a crane than with the danger posed by the crane. The Complainant was a QC manager. He and other QC inspectors were held responsible for the allegedly unauthorized test even though several management-level employees were present at an initial test and approved of it. Although the Complainant had not behaved well at a meeting, there was testimony that managers had yelled, screamed, used profanity and intimidation at meetings, that other employees had become upset and used profanity at meetings, and that the Complainant was dealt with more harshly than other employees.

[Nuclear and Environmental Whistleblower Digest XI D 1 a]
CLEAR AND CONVINCING EVIDENCE; RESPONDENT BEARS RISK THAT LEGAL AND ILLEGAL MOTIVES CANNOT BE SEPARATED

In Pierce v. United States Enrichment Corp. , ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the Complainant had established that protected activity was a contributing factor in his discharge, and the burden had shifted to the Respondent to establish by clear and convincing evidence that it would have taken the adverse action in the absence of the protected activity. The ARB acknowledged that there was evidence in the record that suggested that performance deficiencies and conflicts with management might have lead to the Complainant's termination without regard to protected activity, but that found that the Respondent had not established such by clear and convincing evidence. The ARB noted that a respondent bears the risk that the influence of legal and illegal motives cannot be separated. The ARB found strong evidence of retaliatory motive in the swiftness of the Respondent's moving the Complainant from a performance improvement plan to discharge, without evidence of similar actions toward other employees.

[Nuclear and Environmental Whistleblower Digest XVI D 3 a]
COMPENSATORY DAMAGES FOR MENTAL OR EMOTIONAL DISTRESS; UNSUPPORTED TESTIMONY OF COMPLAINANT IS INSUFFICIENT TO SUPPORT AWARD

In Pierce v. United States Enrichment Corp. , ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB wrote:

    An employer who violates the ERA may be held liable to the employee for compensatory damages for mental or emotional distress. Compensatory damages are designed to compensate whistleblowers not only for direct pecuniary loss, but also for such harms as loss of reputation, personal humiliation, mental anguish, and emotional distress.

    Emotional distress is not presumed; it must be proven. "Awards generally require that a plaintiff demonstrate both (1) objective manifestation of distress, e.g., sleeplessness, anxiety, embarrassment, depression, harassment over a protracted period, feelings of isolation, and (2) a causal connection between the violation and the distress." To recover compensatory damages for mental suffering or emotional anguish, a complainant must show by a preponderance of the evidence that the unfavorable personnel action caused the harm.

USDOL/OALJ Reporter at 18 (footnotes omitted). The ARB agreed with the ALJ that the Complainant's testimony that he felt a "tremendous sense of loss," "guilt," and "loss of self esteem," was not sufficient to support an award of compensatory damages. The Complainant had acknowledged that he had not sought or received professional medical help for his symptoms, and had offered no documentary evidence or witness testimony to support his testimony in this regard.

To the same effect, Dixon v. United States Dept. of Interior, Bureau of Land Management , ARB Nos. 06-147, -160, ALJ No. 2005-SDW-8 (ARB Aug. 28, 2008).

[Nuclear and Environmental Whistleblower Digest XVI E 3 c]
ATTORNEY FEE MARKET; AVAILABILITY OF LOCAL COUNSEL

In Pierce v. United States Enrichment Corp. , ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB affirmed the ALJ's finding that it was appropriate to determine hourly rates for an attorney fee award based on the Louisville market (the location of the Complainant's counsels' office) where the Complainant presented affidavits indicating that competent, willing counsel were not available to the Complainant in the Paducah, Kentucky hearing location. The ARB rejected the Respondent's argument on appeal that the case was not complex and that any local attorney with some employment law experience could have handled the matter, observing that the Respondent had not used its local counsel, but had retained instead a national law firm located in Washington, DC. The ARB's review of the record convinced it that it was reasonable for the Complainant to retain counsel with expertise in federal whistleblower litigation.

[Nuclear and Environmental Whistleblower Digest XVI E 3 d ii]
ATTORNEY FEES; MEETING WITH NRC MUST BE SHOWN TO BE CONNECTED TO WHISTLEBLOWER LITIGATION TO BE COMPENSABLE

In Pierce v. United States Enrichment Corp. , ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008), the ARB denied attorney fees for hours meeting with the NRC where the descriptions of the work were vague and it was not self-evident that the meetings were connected to the whistleblower litigation.

[Nuclear and Environmental Whistleblower Digest XVI E 2]
ATTORNEY FEES; TRAVEL TIME AWARD WITHIN DISCRETION OF ALJ

The decision to award travel time as part of an attorney fee award is within the discretion of the ALJ. Pierce v. United States Enrichment Corp. , ARB Nos. 06-055, -058, -119, ALJ No. 2004-ERA-1 (ARB Aug. 29, 2008).

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Summary :

DEBARMENT; UNUSUAL CIRCUMSTANCES NOT SHOWN BY MERE NEGLIGENCE; REPAYMENT OF BACK WAGES DOES NOT CAUSE RESPONDENT TO AVOID DEBARMENT

In Ray's Lawn and Cleaning Services, Inc. , ARB No. 06-112, ALJ No. 2005-SCA-7 (ARB Aug. 29, 2008), the ARB affirmed the ALJ's determination that the Respondents continued to violate the SCA wage and fringe benefits provisions when it underpaid its service contract employees even after the Wage and Hour Division's initial investigation found similar SCA violations, and therefore its conduct amounted to culpable conduct within the meaning of 29 C.F.R. § 4.188(b)(3)(i). On appeal, the Respondents argued that the violation was not intentional but merely negligent. The ARB, however, stated that "[t]he legal standard for culpable neglect does not require a finding of intent to violate the Act. Rather, . . . culpable neglect or conduct requires conduct that is beyond negligence, but short of specific intent." USDOL/OALJ Reporter at 6 (footnote omitted). Therefore, the ARB affirmed the ALJ's conclusion that the Respondents did not satisfy that first part of the three-part test for determining whether "unusual circumstances" exist to warrant relief from debarment. The Respondents contended that they should not be debarred because they had paid the back wages they owed to the employees. The ARB, however, stated that "[w]hen Ray's Lawn underpaid their employees, it violated the SCA's wage and fringe benefits provisions. Ray's Lawn's payment of the underpayments they created is not a penalty for a SCA violation; debarment from United States Government contracts for three years is." USDOL/OALJ Reporter at 7 (footnote omitted).

PRO SE LITIGANT; ALJ'S DUTY TO ASSIST DOES NOT SHIFT BURDEN OF LITIGATING THE COURT

In Ray's Lawn and Cleaning Services, Inc. , ARB No. 06-112, ALJ No. 2005-SCA-7 (ARB Aug. 29, 2008), the ARB found no merit to the Respondents' argument that the ALJ did not adequately fulfill his duty to develop the record on behalf of an unrepresented respondent. The ARB wrote that "[w]hile we have acknowledged that adjudicators must accord a party appearing pro se fair and equal treatment, a pro se litigant 'cannot generally be permitted to shift the burden of litigating his case to the courts, nor avoid the risks of failure that attend his decision to forego expert assistance.'" USDOL/OALJ Reporter at 7-8 (footnote omitted).

HEARSAY; ADMISSIBILITY IN SCA DEBARMENT PROCEEDINGS; TESTIMONY OF WAGE AND HOUR OFFICIALS BASED ON REVIEW OF INVESTIGATORY FILE; PUBLIC RECORDS AND REPORTS EXCEPTION

In Ray's Lawn and Cleaning Services, Inc. , ARB No. 06-112, ALJ No. 2005-SCA-7 (ARB Aug. 29, 2008), the ARB rejected the Respondents' contention that the Secretary based its debarment case on inadmissible hearsay evidence in the form of the testimony of Wage and Hour Division officials regarding a prior investigation of the Respondents based on their review of the investigation file. The ARB wrote that: "It is well established, however, that hearsay evidence is admissible in SCA administrative proceedings . . .. In any event, the testimony of the Wage and Hour Division officials recounted the results of the prior investigation, which was fully within Ray's Lawn's knowledge, and thus within their ability to effectively counter or rebut. Moreover, the Wage and Hour Division officials' testimony was based on their own personal review of the prior investigation's public file and, therefore, does not meet the plain definition of hearsay." USDOL/OALJ Reporter at 8-9 (footnotes omitted). In a footnote, the ARB ruled in the alternative that "the testimony of the Wage and Hour Division officials also falls within the 'public records and reports' exception to the hearsay rule. See 29 C.F.R. § 18.803(a)(8)(iii)(exempting '[f]actual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness')." USDOL/OALJ Reporter at n.49.

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Summary :

[Nuclear and Environmental Whistleblower Digest XI A 2 a]
CONTRIBUTING CAUSE; EVIDENCE OF POLITICAL PRESSURE TO REMOVE COMPLAINANT FROM PROJECT MANAGEMENT OF CLEANUP OF COPPER MINING SITE

In Dixon v. United States Dept. of Interior, Bureau of Land Management , ARB Nos. 06-147, -160, ALJ No. 2005-SDW-8 (ARB Aug. 28, 2008), the Complainant was an environmental protection specialist for the Department of Interior, Bureau of Land Management (BLM) whose main task was related to the clean-up of the Yerlington copper mining site in Nevada. In 2000, EPA determined that the mine qualified as a superfund site under CERCLA; the state of Nevada did not agree that the site should be part of CERCLA's national priorities list; instead Nevada's Department of Environmental Protection (NDEP) developed a memorandum of understanding (MOU) with EPA and BLM in 2002 that permitted the state to take the lead in developing a work plan to clean up the site in a manner "not inconsistent with CERCLA." The ARB found that a memo indicated that the Complainant was fired because county commissioners and a congressman were concerned with his continued association with project management at the site. The ARB found that although the memo and other evidence indicated dissatisfaction with the way the Complainant did his work, it also showed that BLM had a retaliatory motive in firing the Complainant because he (1) raised concerns that the contamination at the Yerlington site was much greater than previously documented; (2) insisted that the work plans submitted by the MOU partners and ARCO (which was responsible for repaying part of the costs of the clean-up) comply with CERCLA; and (3) refused to back down from his conclusions about worker health and safety at the site. The ARB also noted that just a few hours before the BLM State Director directed a city manager to draft a rationale for firing the Complainant, the county commissioners told the State Director that they were unhappy with the Complainant's efforts to implement CERCLA at the site and wanted him removed as project manager. The Respondent failed to establish by clear and convincing evidence that it would have fired the Complainant in the absence of protected activity, and therefore the ARB affirmed the ALJ's holding that BLM had violated the SDWA and CERCLA.

[Nuclear and Environmental Whistleblower Digest XVI B 4]
REINSTATEMENT; WHERE COMPLAINANT'S POSITION WAS TEMPORARY AND THE JOB NO LONGER EXISTED, FRONT PAY TO THE CONCLUSION OF THE ORIGINAL APPOINTMENT WAS WARRANTED; FRONT PAY FOR POSSIBLE EXTENSION OF APPOINTMENT TOO SPECULATIVE

In Dixon v. United States Dept. of Interior, Bureau of Land Management , ARB Nos. 06-147, -160, ALJ No. 2005-SDW-8 (ARB Aug. 28, 2008), the ALJ found that reinstatement was no longer an issue because the Complainant's appointment was only for two years, with a possible extension to four years. The Complainant had been fired at the end of his probationary year, and the ALJ ordered the Respondent to pay the Complainant's salary and benefits through the end of his term appointment. On appeal, the Complainant argued that he should have been reinstated long enough for so that the Respondent could have made the decision regarding his continued employment that it would have been required to make absent its retaliatory discharge. The ARB observed that project management at the cleanup site at which the Complainant worked had been transferred to a state office, and that later EPA had taken over clean-up efforts, resulting in the Complainant's job no longer being in existence, and therefore making reinstatement not possible. Noting that front pay may be a remedy when reinstatement is not possible, the ARB agreed with the ALJ's order for the Respondent to pay the Complainant's salary and benefits from the date of his firing until the end of his appointment. The ARB stated that while the Complainant's appointment might have been extended for another two years, front pay beyond the ALJ's award would be purely speculative.

[Nuclear and Environmental Whistleblower Digest XVI F]
PUNITIVE DAMAGES CANNOT BE AWARDED AGAINST THE FEDERAL GOVERNMENT

In Dixon v. United States Dept. of Interior, Bureau of Land Management , ARB Nos. 06-147, -160, ALJ No. 2005-SDW-8 (ARB Aug. 28, 2008), the Complainant sought punitive damages of one million dollars against the Respondent, a federal agency. The ARB denied the request, holding that although the SDWA permits an award of exemplary (i.e., punitive) damages, punitive damages are not awardable against the federal government. Moreover, the ARB found that the nothing in the record supported any punitive damages, let alone the one million dollars sought by the Complainant.

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Summary :

REMOVAL TO FEDERAL COURT; ARB DENIES MOTION TO STAY DISMISSAL OF ARB APPEAL TO PERMIT ATTEMPT TO MEDIATE OR TO PERMIT THE RESPONDENT TO ATTEMPT TO HAVE THE CASE RETURNED TO THE ARB; COMPLAINANT'S ADMISSION IN MALPRACTICE SUIT THAT THE SOX CLAIM WAS NOT TIMELY FILED WAS BEYOND ARB'S AUTHORITY TO ADDRESS ONCE THE COMPLAINANT REMOVED TO FEDERAL COURT

In Koeck v. General Electric Consumer and Industrial , ARB No. 08-068, ALJ No. 2007-SOX-73 (ARB Aug. 28, 2008), the Complainant filed notice with the ARB that she intended to remove her SOX case to federal court, and the ARB issued an order to show cause why the appeal to the ARB should not be dismissed. The Respondent initially argued that the ARB should stay a decision pending an attempt to mediate the case and, in the alternative, because, if mediation was unsuccessful, it intended to move the district court to dismiss Koeck's complaint on the grounds of collateral estoppel or return the case to the Board for decision. The ARB found that the Respondent, however, did not argue that "the complainant has acted in bad faith to delay the proceedings," which are the only grounds the regulations provide for denying dismissal under the regulation. The Respondent subsequently argued that the ARB should dismiss the complaint because she admitted in a malpractice suit against her former attorneys that they had failed to timely file her SOX complaint. The ARB found, however, that the Complainant's filing of a de novo complaint in district court had deprived the ARB of jurisdiction to rule on the merits of her claim. Accordingly, the ARB dismissed the appeal.

MOTION TO SEAL RECORD BASED ON ATTORNEY-CLIENT PRIVILEGE

In Koeck v. General Electric Consumer and Industrial , ARB No. 08-068, ALJ No. 2007-SOX-73 (ARB Aug. 28, 2008), the Complainant removed her SOX case to federal court, and the Respondent filed a motion with the ARB seeking to have the administrative record placed under seal, apparently on the ground that it contained privileged attorney-client communications. The ARB rejected the Complainant's argument that it did not have the authority to rule on the motion once the case was removed to federal court, finding that the federal action was de novo, that the administrative record was still in its custody, and that the administrative record was not part of the case pending before the federal district court. Nonetheless, the ARB held that

   The Board and the Secretary of Labor have routinely held that that there is no authority permitting the sealing of a record in a whistleblower case because the case file is a government record subject to disclosure pursuant to the Freedom of Information Act, unless the record qualifies for an exemption to such disclosure. Moreover, the Board cannot guarantee confidentiality before it has received a FOIA request to release a document because an agency "'promise of confidentiality [cannot] in and of itself defeat the right of disclosure.'"

USDOL/OALJ Reporter at 3 (footnotes omitted). The Respondent urged the ARB to nonetheless depart from that authority arguing that "although OSHA permits attorneys to rely upon evidence subject to the attorney-client privilege to support their whistleblower complaints against their employers, 'a careful balancing of interests is necessary when such disclosures are made.'" The ARB found, however, that FOIA exemptions are exclusive, and that it was not free to create an exclusion from FOIA for the attorney-client privileged information included in this case record, no matter how compelling the ARB might find the policy arguments for protection. Rather, only once a FOIA request was actually made could a determination be made whether a statutory FOIA exemption applies. The ARB noted that the DOL has FOIA regulations stating how to designate certain information for predisclosure notification.

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Summary :

TIMELINESS OF COMPLAINT; NOTICE OF ADVERSE ACTION IS BASED ON OBJECTIVE, NOT SUBJECTIVE STANDARD; SUPREME COURT DECISIONS DO NOT REQUIRE THAT A DATE CERTAIN BE GIVEN IN THE NOTICE

In Sneed v. Radio One, Inc. , ARB No. 07-072, ALJ No. 2007-SOX-18 (ARB Aug. 28, 2008), in opposing a motion for summary decision grounded in lack of timeliness of the SOX whistleblower complaint, it was not sufficient for the Complainant to merely show that there was a genuine issue of material fact as to whether she had a subjective belief that the notice she had received constituted a "final, definitive, and unequivocal notice" that the termination of her employment would be effective the following day. Rather, the ARB indicated that the ALJ correctly looked to whether such a belief was objectively reasonable. The ARB found that the notice she had been given in an e-mail that "tomorrow will be your last day," and that the separation would be announced to the company, was sufficient for a reasonably prudent person with regard for her rights to know that it was her employer's intent to take adverse action against her the following day. Moreover, even if the adverse action was not certain to occur the following day, the Complainant knew or should have known that her termination "was not in question and was imminent." The complaint had been filed on the 91st day following the e-mail that the ALJ and ARB found constituted notice of the adverse action.

The Complainant argued that under Chardon and Ricks , the employer is required not only to unequivocally notify the employee of the termination, but also to give a date certain for that termination to activate the limitations clock. The ARB held that these decisions did not stand for the proposition that such a definite date is a prerequisite to starting the limitations period, and that any such proposition would conflict with decisions of the 11th Circuit, in which circuit the case arose, the of the Board itself.

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Summary :

TIMELINESS OF COMPLAINT; SERIOUSNESS OF COMPLAINT IS NOT GROUNDS FOR EQUITABLE TOLLING

In Ubinger v. CAE International , ARB No. 07-083, ALJ No. 2007-SOX-36 (ARB Aug. 27, 2008), the Complainant acknowledged that his complaint was not timely filed, but asked for a waiver of the time limits based the assertion that his complaints were serious, and based on lack of knowledge of "SOX 806." The ARB rejected the contention that a party should not be constrained by time limits if his or her complaints are serious, observing that such a rule would render limitations periods with no legal force. The ARB also stated that ignorance of the law will not generally support a finding of entitlement to equitable modification of a limitations period. The ARB rejected the contention that an FAA inspector who investigated one of the Complainant's allegations had an obligation to inform him that he could file a SOX complaint. The ARB was not persuaded to invoke equitable tolling based on the Complainant's allegation that he was detained by the Respondent on the final day of the limitations period while being pressured to sign a release. The ARB found that at best this would only merit tolling for the one day he was detained, but the Complainant had not filed his complaint until six months later.

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Summary :

[STAA Digest II P]
SUMMARY JUDGMENT; FAILURE OF COMPLAINANT TO CONTEST RESPONDENT'S VERSION OF THE EVENTS

In Hollenbeck v. Universal Fuel, Inc. , ARB No. 07-054, ALJ No. 2007-STA-3 (ARB Aug. 26, 2008), the Complainant did not file a response before the ALJ to the Respondent's motion for summary decision based on legitimate non-discriminatory reasons for the adverse action, and did not file an appellate brief before the ARB. Because the Respondent's version of the events was uncontested, summary decision was affirmed.

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Summary :

REMOVAL TO FEDERAL COURT; WHETHER DISMISSAL OF ARB APPEAL MAY BE HELD IN ABEYANCE

In Zang v. Fidelity Management & Research Co. , ARB No. 08-078, ALJ No. 2007-SOX-27 (ARB Aug. 26, 2008), the Complainant had notified the ARB that he was removing the case to federal court, but the ARB had held the appeal before it in abeyance based on the Respondent's contention that it would be filing a motion with the district court to dismiss the appeal or to issue a mandamus to DOL to issue a ruling on the appeal of the ALJ's decision. The ARB had believed that the district court's decision was imminent. However, it had not become apparent that it was not. The ARB thus dismissed the appeal.

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Summary :

[STAA Whistleblower Digest IV A 2 c]
CAUSATION; EMPLOYER COULD NOT HAVE KNOWN WHAT WAS IN COMPLAINANT'S LOG BOOKS AT THE TIME THE DECISION WAS MADE TO FIRE HIM

In Davis v. Chem Canada Logistics, Inc. , ARB No. 08-010, ALJ No. 2006-STA-47 (ARB July 24, 2008), the ARB found that substantial evidence supported the ALJ's finding that the Respondent did not know about deficiencies recorded in the Complainant's log book prior to making the decision to terminate the Complainant because the Complainant had been terminated en route and therefore the Respondent could not have seen the log book. The ARB also affirmed the ALJ's finding that the Complainant's testimony regarding verbal reports of safety defects was not credible. The ARB noted that the Complainant had not challenged the ALJ's finding on appeal, having not responded to the Board's notice of a right to file a brief.

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