USDOL/OALJ Reporter: ARB Decision Caselist - August 2011

[STAA Digest IX B 2 b ii]
BACK PAY CALCULATION FOR A "LEASED" DRIVER; IF THE ALJ USES THE REPRESENTATIVE EMPLOYEE METHOD FOR APPROXIMATING BACK WAGES, THE ALJ MUST EXPLAIN WHY THAT METHOD WAS CHOSEN UNDER THE FACTS OF THE CASE

In Ferguson v. New Prime, Inc. , ARB No. 10-075, ALJ No. 2009-STA-47 (ARB Aug. 31, 2011), the Complainant's line haul employment for the Respondent included an arrangement where the Complainant leased a truck from the Respondent. A weekly rental payment and the truck's operating expenses were deducted from pay. The Complainant had a negative balance for her entire 16 weeks of employment. The ARB affirmed the ALJ's findings that the Complainant had been terminated in violation of the STAA whistleblower provision. The ALJ based the back pay award on the amount company drivers were paid per mile, deducting out the amount the Complainant had in arrears for deductions and advances. The ARB remanded for further proceedings because the ALJ had not explained the basis for his back pay determination. The ARB wrote:

   While the Board has held that a formula for computing back pay keyed to the earnings of a representative employee may give a reasonable approximation of what a complainant would have earned but for the discrimination, Reed v. National Minerals Corp. , No 1991-STA-034 (Sec'y July 24, 1992), the ALJ did not explain the reason for choosing a company driver's wages to calculate the amount of the back pay award, rather than a leased driver. The Administrative Procedure Act (APA) requires that decisions rendered on the record provide the "findings and conclusions, and the basis therefor, on all the material issues of fact, law or discretion presented on the record . . . ." 5 U.S.C.A. § 557(c)(3)(A) (West 1996); see Lockert v. Sec'y of Labor , 867 F.2d 513, 517 (9th Cir. 1989) (arising under Energy Reorganization Act, 42 U.S.C. § 5851 (1988)). Consistent with the mandate of Section 557(c)(3)(A), the ALJ's findings of fact must provide an explanation for the resolution of conflicts in the evidence and must reflect proper consideration of evidence that could support contrary findings. See NLRB v. Cutting, Inc. , 701 F.2d 659, 667 (7th Cir. 1983); see also 29 C.F.R. § 18.57(b)(2010) (summarizing contents of ALJ decisions). As the ALJ did not provide a rationale for his determination of the amount due for back pay, we vacate the ALJ's finding that Ferguson would have earned an average of $509.70 per week had New Prime not discriminated against her, and remand the issue of the amount of back pay to which Ferguson is entitled for reconsideration based upon further findings and explanation.

USDOL/OALJ Reporter at 7.

[STAA Digest IX B 3 e]
COMPENSATORY DAMAGES FOR EMOTIONAL DISTRESS MAY BE BASED ON UNREFUTED, CREDIBLE TESTIMONY

In Ferguson v. New Prime, Inc. , ARB No. 10-075, ALJ No. 2009-STA-47 (ARB Aug. 31, 2011), the ARB affirmed as supported by substantial evidence the ALJ's award of $50,000 in compensatory damages for emotional distress based on the Complainant's unrefuted and credible testimony, even though the testimony was not supported by any medical evidence.

[STAA Digest IX D 4]
PUNITIVE DAMAGES; ALJ MUST DETERMINE THE NECESSITY FOR AND AMOUNT OF SUCH DAMAGES UNDER THE FACTS OF THE CASE

In Ferguson v. New Prime, Inc. , ARB No. 10-075, ALJ No. 2009-STA-47 (ARB Aug. 31, 2011), the ALJ awarded $75,000 in punitive damages based on a finding that the Respondent's fleet manager had intentionally violated a federal safety statute when he pressured the Complainant to drive through the Donner Pass in hazardous conditions. The ALJ found that the fleet manager had demonstrated a total disregard not only for the Complainant and her co-driver's safety but for the safety of other drivers on the road, and that this behavior was both reprehensible and inimical to the purpose of the Act. The ARB remanded for additional findings. The ARB wrote:

    The United States Supreme Court has held that punitive damages may be awarded where there has been "reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law . . . ." Smith v. Wade , 461 U.S. 30, 51 (1983). The Court explained the purpose of punitive damages is "to punish [the defendant] for his outrageous conduct and to deter him and others like him from similar conduct in the future." Restatement (Second) of Torts § 908(1) (1979). The focus is on the character of the tortfeasor's conduct � i.e., whether it is of the sort that calls for deterrence and punishment over and above that provided by compensatory awards. Id. at 54.

    ... [T]he ALJ did not consider whether Thomas's behavior reflected a corporate policy of STAA violations or whether punitive damages are necessary in this case to deter further violations. See generally White v. The Osage Tribal Council , ARB No. 96-137, ALJ No. 1995-SDW-001 (ARB Aug. 8, 1997); Johnson v. Old Dominion Sec. , Nos. 1986-CAA-003, -004, -005, slip op. at 29 (Sec'y May 29, 1991). Moreover, the ALJ accepted the Complainant's request for damages in the amount of $75,000 without discussing the evidentiary basis for this finding. Thus, we vacate the ALJ's punitive damages award and remand the case for further findings on the necessity and amount of such damages under the facts of this case. In his analysis, the ALJ should include consideration of the size of the award that would adequately deter New Prime from future violations and the punitive impact of the damages on the company.

USDOL/OALJ Reporter at 8-9.

[Nuclear and Environmental Whistleblower Digest XX E]
FEDERAL SOVEREIGN IMMUNITY WHERE ERA COMPLAINT ONLY SEEKS EQUITABLE RELIEF; ARB FINDS THAT IMMUNITY HAS NOT BEEN UNEQUIVOCALLY WAIVED

In Mull v. Salisbury Veterans Administration Medical Center , ARB No. 09-107, ALJ No. 2008-ERA-8 (ARB Aug. 31, 2011), the Complainant filed an ERA whistleblower complaint against a Department of Veterans Affairs medical facility, arguing that such an administrative suit was not barred by sovereign immunity because the Complainant was only seeking equitable relief and not monetary damages. The ALJ, relying on the APA at 5 U.S.C. § 702, concluded that where an employee has been injured by agency action within the ERA's coverage, the employee may seek equitable relief (non-monetary damages) from the agency. The ALJ certified the issue of sovereign immunity for interlocutory review, and the ARB granted such review. The ARB found that 5 U.S.C. § 702 applies to the judiciary and not to agency appellate review, and therefore is not a waiver of sovereign immunity before the Department of Labor. The ARB also found that the ERA does not contain an unequivocal expression of intent to waive sovereign immunity, and therefore revered the ALJ's finding that sovereign immunity was waived. The ARB noted that the Assistant Secretary had made a rational argument in favor of finding that the Nuclear Regulatory Commission (NRC) and the Department of Energy (DOE) as well as federal licensees of the NRC have waived their sovereign immunity under the ERA because the ERA incorporates the Atomic Energy Act's definition of "person," 42 U.S.C. § 2014(s), which includes federal government agencies other than the Atomic Energy Commission. The ARB, however, found that the Assistant Secretary's argument only created a debatable point rather than an unequivocal waiver, as required for a waiver of federal sovereign immunity. One member of the Board dissented, arguing that the APA does not create a waiver of sovereign immunity on the ground that the relief sought is equitable in nature, but concluding that the ERA, when read in conjunction with the AEA, does provide a waiver.

The ARB affirmed the ALJ's grant of summary decision in favor of the Complainant where uncontested facts supported each element of a STAA whistleblower claim.

[STAA Digest VI B 4]
ADVERSE EMPLOYMENT ACTION UNDER THE STAA; WARNING LETTER; MELTON SUPERSEDED BY NEW, BROADER REGULATORY GUIDANCE; REMAND FOR CONSIDERATION OF WHETHER WILLIAMS DECISION UNDER AIR21 IS DETERMINATIVE

In Strohl v. YRC, Inc. , ARB No. 10-116, ALJ No. 2010-STA-35 (ARB Aug. 12, 2011), the ALJ granted summary decision in favor of the Respondent finding that a warning letter was neither discipline nor discrimination actionable under STAA. The parties had stipulated that the warning letter was governed by the terms of a collective bargaining agreement (CBA); that the CBA required the Respondent to issue a warning letter to employees before it could issue substantive discipline for subsequent offenses; that the CBA provides that those warning letters "age off" after nine months; and that the particular warning letter at issue did not affect the Complainant's pay or pension opportunities, assignments, seniority, or eligibility for promotion.

The ALJ's determination that the January 6, 2009 warning letter was not actionable under STAA was based upon the ARB's decision in Melton v. Yellow Transp., Inc ., ARB No. 06-052, ALJ No. 2005-STA-2 (ARB Sept. 30, 2008). On appeal the Complainant argued that Melton had been wrongly decided.

The ARB did not address whether Melton had been wrongly decided, but rather found that it was not bound by that decision because, subsequent to Melton , the Secretary issued new regulations implementing the STAA that contain a broader interpretation of the statutory language on the scope of discipline or discrimination actionable under the STAA's whistleblower protections.

The ARB noted that in Williams v. American Airlines, Inc. , ARB No. 09-018, ALJ No. 2007-AIR-004 (ARB Dec. 29, 2010), it determined that nearly identical regulatory language promulgated under AIR 21's whistleblower provisions made warning letters presumptively adverse under certain circumstances. Although the ARB stated that Williams has "persuasive value," it would refrain from incorporating that decision into its STAA jurisprudence where neither party has had an opportunity to be heard on the issue. Thus, the ARB remanded so the parties may have an opportunity to consider whether Williams is determinative of the scope of discipline or discrimination actionable under the STAA

ARB DECLINES TO REVIEW ALJ'S SUMMARY DECISION IN FAVOR OF RESPONDENT WHERE RESPONDENT WAS NOT GIVEN NOTICE OF ALJ PROCEEDINGS

In Gupta v. Wipro Limited , ARB No. 11-041, ALJ No. 2010-LCA-24 (ARB Aug. 11, 2011), the Complainant filed a complaint with the Wage and Hour Division (WHD) alleging that the Respondent had violated the H-1B regulations by taking unauthorized deductions from his pay. DOL rejected this complaint as untimely. The next month, the Complainant provided additional information (a pay stub), and DOL accepted the complaint for investigation, with the Complainant being considered an aggrieved party based on his status as a business competitor with the Respondent. The complaint was transferred to a different WHD office. The Complainant informed the WHD that he was no longer going to engage in a recruiting business. The WHD informed the Complainant that an investigation had been assigned. Later, however, the WHD determined that there was no reasonable cause to conduct an investigation. The Complainant requested an ALJ hearing. The ALJ issued an Order to Show Cause (OSC) to the WHD Administrator to explain why it should not be required to follow the procedures at 20 C.F.R. § 655.806(b) and 20 C.F.R. § 655.815 (i.e., there did not appear to be any regulatory procedure for initially accepting a complaint for investigation, but then later determining that no investigation is warranted). The Complainant had moved when the case was initially docketed before OALJ to keep his identity confidential ( see 20 C.F.R. § 600.800(d)), and the two ALJs who were involved in the matter essentially determined that for the preliminary purpose of determining authority to adjudicate the matter, it was appropriate not to serve the Respondent with notice of the ALJ proceedings.

Based on the responses to the OSC, the ALJ found that the WHD was required to issue a determination letter to the Complainant, but that since the Complainant had requested a hearing, he had not been prejudiced by the failure to issue a determination letter. The ALJ then found that the Complainant's complaint as a former employee was untimely, and that the Complainant was not an aggrieved party based on his status as a competitor of the Respondent. [Editor's note: The Complainant had argued before the ALJ that he was a "potential or future competitor." Gupta v. Wipro Limited , 2010-LCA-24 (ALJ Mar. 28, 2011), slip op. at 13.] The ALJ also found that the Administrator's refusal to investigate the complaints was not reviewable. Thus, the ALJ found that summary decision was appropriate. The Complainant appealed to the ARB.

On review, the ARB found that because the Respondent had not been given an opportunity to participate before the ALJ, it could not review the ALJ's summary decision ruling. The ARB wrote: "One might argue 'no harm, no foul' since Gupta lost on both of the[] issues [of timeliness of his complaint as a employee, and his status as a competitor]. But Gupta is now seeking to overturn the ALJ's decision and given our due process concerns, the Board cannot review this appeal at this juncture without Wipro' involvement." The ARB noted that the Complainant's identity as a complainant had now been disclosed, and therefore "the original reason the ALJ proffered for denying Wipro an opportunity to participate is now moot...."

The Acting WHD Administrator argued that the ALJ's decision was correct as a matter of law and the possibility of a remand from the ARB unlikely � and thus, it would impose undue burdens on the ALJ, and potentially on the Acting Administrator, to require the ALJ to reopen the proceedings to permit the Respondent to participate. The ARB, however, rejected this argument, finding that the WHD had cited no authority to support the proposition that due process may be ignored in the interest of administrative efficiency, and had failed to distinguish an ARB decision in which it had quoted the Supreme Court to the effect that "judicial predictions about the outcome of hypothesized litigation cannot substitute for the actual opportunity to defend that due process affords." Powers v. Paper, Allied-Industrial, Chemical & Energy Workers Int ' l Union , ARB No. 04-111, ALJ No. 2004-AIR-019, slip op. at 7-8 (ARB Aug. 31, 2007), quoting Nelson v. Adams USA, Inc. , 529 U.S. 460, 471 (2000).

The Complainant failed to establish that the Respondent took adverse employment action against him for engaging in STAA-protected whistleblower activity. The Respondent was a commercial motor carrier that delivers trucks to its customers in "decked loads" (loads linking two or more trucks together), and the Complainant entered an independent contractor agreement with the Respondent. The record showed that the Complainant engaged in protected activity. The Complainant subsequently informed the Respondent that he only wanted to be assigned single loads, and consequently his assignments became less profitable because of travel expenses to pick up loads, and not often available. The ARB found that substantial evidence supported the ALJ's finding that the expenses the Complainant incurred were the result of his contractual relationship with the Respondent rather than retaliatory motive.

The ARB declined to issue a writ of mandamus filed by the Complainant seeking relief because the ALJ had not issued a decision within 60 days. The ARB found no support for the existence of a mandatory 60 day period for the ALJ to issue a decision; that the Complainant had not established that the ARB has the authority to issue a writ of mandamus; and that the Complainant has the option of fiilng a complaint in Federal district court within 210 days after the date on the complaint was filed if he is dissatisfied with the length of time it is taking the ALJ to adjudicate his complaint.

Dismissal of Complainant's appeal based on failure to file a timely brief in support of the petition for review and failure o demonstrate any cause such failure.

Approval of settlement agreement