USDOL/OALJ Reporter: ARB Decision Caselist - August 2014

[Nuclear and Environmental Digest VIII B 2 a]
ARB'S THREE PART TEST FOR REVIEWING ALJ'S FINDINGS OF FACT UNDER SUBSTANTIAL EVIDENCE STANDARD OF REVIEW

In Bobreski v. J. Givoo Consultants, Inc. , ARB No. 13-001, ALJ No. 2008-ERA-3 (ARB Aug. 29, 2014), the ARB explained the three part test it employs when reviewing an ALJ's finding of fact under the substantial evidence standard of review:

   As the Secretary’s designee on appeals, we have authority to review the ALJ’s decision and serve as the final executive and quasi-judicial review of whistleblower claims. Pursuant to the Secretary’s regulations, the Board reviews questions of law de novo and "findings of facts" for substantial evidence.

   The meaning of substantial evidence has loosely been described in several ways but with some repeated themes. Obviously, the "substantial evidence" test requires that there be "evidence" behind each of the ALJ’s material fact findings. The more difficult part of the substantial evidence test is the word "substantial." In defining the term "substantial," the Board and the federal courts have required that substantial evidence be the kind that "a reasonable mind might accept as adequate to support a conclusion," a logical relationship between evidence and a finding of fact. The fact finding must "take into account whatever in the record fairly detracts from its weight," having a sufficient contextual strength. A finding of fact lacks contextual strength and substantial evidence if "the [adjudicator] ignores, or fails to resolve, a conflict created by countervailing evidence" or "if it is overwhelmed by other evidence or if it really constitutes mere conclusion." Given these principles, the substantial evidence test requires us to apply a three-part analysis for each finding of fact relevant to the issues on appeal: (1) whether the ALJ and/or the parties have identified record evidence for each of the material fact findings; (2) whether the supporting evidence logically supports the fact finding; and, if so, (3) whether the record as a whole overwhelms the fact finding or contains factual disputes that expose the fact finding as still unresolved. We must be convinced that each fact finding has evidence allowing for a logical inference that arguably fits with the remaining record. We listed these three analytical steps in a self-evident progressive order, but we recognize that any one of these steps alone can expose the lack of substantial evidence and that no particular order is required.

   Several principles of administrative review require us to be cautious in our review of findings of fact. For example, we appreciate that we must uphold an ALJ’s supported findings of fact even if substantial evidence supports a contrary view, and even if we justifiably disagree with the finding. We treat even more carefully the ALJ’s credibility determinations based on demeanor and overturn such findings only if they "conflict with a clear preponderance of the evidence" or "are ‘inherently incredible or patently unreasonable.’" But as for the ultimate question of contributory factor, after accepting the ALJ’s findings supported by substantial evidence, we will set aside the ultimate finding if we "‘cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes.’"

USDOL/OALJ Reporter at 13-14 (footnotes omitted).

[Nuclear & Environmental Whistleblower Digest XI A]
[Nuclear and Environmental Whistleblower Digest XI A 2 b i]
ERA BURDEN OF PROOF; CIRCUMSTANTIAL EVIDENCE CASE REQUIRES WEIGHING OF ALL RELEVANT EVIDENCE

In Bobreski v. J. Givoo Consultants, Inc. , ARB No. 13-001, ALJ No. 2008-ERA-3 (ARB Aug. 29, 2014), the ARB reiterated the burden of proof and elements of an ERA Section 5851 whistleblower case:

   Subsection 5851(b)(3)(C) provides that "[t]he Secretary may determine that a violation of subsection (a) of this section has occurred only if the complainant has demonstrated that any [ERA Protected Activity] was a contributing factor in the unfavorable personnel action alleged in the complaint." This provision creates the "violation" clause of the ERA whistleblower provisions. The plain meaning of "contributing factor" focuses on whether protected activity did or did not, in fact, contribute at all to an employer’s unfavorable employment action. Congress expressly ensured that the causation standard was not defined as meaning an essential ("but for") or significant ("motivating") factor as in other discrimination statutes but rather a lower causation standard of "contributory factor." To prove that a covered employer "violated" the ERA whistleblower protection law, a complainant must establish that: (1) he engaged in activity the ERA protects; (2) the employer subjected him to an unfavorable personnel action; and (3) the protected activity was in fact a "contributing factor in the unfavorable personnel action." 42 U.S.C.A. § 5851(b)(3)(C). If a complainant proves that a violation occurred, then the focus turns to the relief that should be ordered.

   The affirmative defense clause of the ERA whistleblower provisions, 42 U.S.C.A. § 5851(b)(3)(D), prevents the Secretary from ordering relief for a proven whistleblower violation "if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior" (the same decision defense). The higher standard of proof makes sense where the complainant proved, in fact, that the employer violated the ERA whistleblower provision. As the Eleventh Circuit observed in 1997, Congress deliberately sought to make it tough for violators to escape from paying for their unlawful whistleblower retaliation. But this high standard applies only if the complainant first convinces the ALJ by a preponderance of all the relevant evidence presented that protected activity actually contributed to the employer’s unfavorable employment action.

USDOL/OALJ Reporter at 15-16 (footnotes omitted). The Board also stated:

    [T]he complainant’s burden on the causation element involves a single ultimate issue after an evidentiary hearing in ERA whistleblower cases: whether the complainant proved that his protected activity was a "contributory factor" in the employer’s unfavorable employment decision. To answer that question, where the complainant presents his case by circumstantial evidence, ... the ALJ must consider "all" the evidence "as a whole" to determine if the protected activity did or did not "contribute." By "all" of the evidence, we mean all the evidence that is relevant to the question of causation. This requires collecting the complainant’s evidence on causation, assessing the weight of each piece, and then determining its collective weight. The same must be done with all of the employer’s evidence offered to rebut the complainant’s claim of contributory factor. For the complainant to prove contributory factor before the ALJ, all of his circumstantial evidence weighed together against the defendant’s countervailing evidence must not only permit the conclusion, but also convince the ALJ, that his protected activity did in fact contribute to the unfavorable personnel action. Because contributory factor permits unlawful retaliatory reasons to co-exist with lawful reasons, a complainant does not need to prove that lawful reasons were pretext. Circumstantial evidence may include a wide variety of evidence, such as motive, bias, work pressures, past and current relationships of the involved parties, animus, temporal proximity, pretext, shifting explanations, and material changes in employer practices, among other types of evidence. As the United States Supreme Court has stated, "‘[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’"

USDOL/OALJ Reporter at 16-17 (footnotes omitted). One member of the ARB concurred, but stated that both the ALJ and the majority erred by weighing the Respondent's rebuttal evidence against the Complainant's causation evidence at the first "contributing factor" stage of the ERA whistleblower framework. The concurring member wrote:. "Assuming the complainant’s evidence is sufficient to sustain proof of "contributing factor" causation; the respondent’s non-retaliatory reason for its action may not be weighed against the complainant’s evidence of causation but instead must be weighed at the second affirmative defense stage under the higher clear and convincing evidence standard." Id. at 33.

In Bobreski , the ARB found that the ALJ "failed to consider the evidence as a whole and collectively weigh all of [the Complainant's] evidence against all of. [the Respondent's] rebuttal evidence to determine the question of causation." Id. at 18. The ARB found that the both the original ALJ and a second ALJ assigned the case on remand erroneously "fragmented the causation question into many subparts and required [the Complainant] to prove each of the subparts by a preponderance of the evidence, and arguably required direct evidence." Id. In a detailed decision, the ARB found that the Respondent presented weak rebuttal evidence while the Complainant presented strong circumstantial evidence, and that a remand on the question of contributory factor was unnecessary and futile because the evidence led to one conclusion: that the Respondent refused to hire the Complainant because of his whistleblower activity. The ARB also found that "the overwhelming evidence of contributory factor, and lack of any other stated reasons for rejecting Bobreski eliminates Givoo’s ability to show by clear and convincing evidence that it would have made the same decision in the absence of protected activity...." Id. at 32.

ARB review dismissed where case settled while motion for reconsideration was pending before the ALJ.

DISMISSAL OF ARB REVIEW WHERE EXCEPTIONS ARE NOT TIMELY FILED

In OFCCP v. D & S Construction of Pineville, Inc. , ARB No. 14-088, ALJ No. 2010-OFC-6 (ARB Aug. 28, 2014), the ARB issued a final order affirming the ALJ's recommended decision granting the Plaintiff's (OFCCP) motion for default judgment. The motion was based on the Plaintiff’s inability to contact the Defendant to determine whether the Defendant obtained new counsel after former counsel withdrew. The ALJ put the Defendant on notice of the nature of the motion and warned that failure to respond timely could result in the motion being granted. The ARB noted that 17 months had passed since the ALJ issued his recommended decision; that no party had filed exceptions with the Board; that the ALJ’s recommended decision contained a certification that it was served on the Defendant at its last known address (at which the Defendant had previously accepted mail); there was no evidence that the ALJ's recommended decision was returned as undeliverable or that the Defendant provided any alternative address. The ARB thus found that the period for filing exceptions had expired.

FILING OF ACTION IN DISTRICT COURT GIVES DISTRICT COURT COMPLETE JURISDICTION OVER THE MATTER, AND THE COMPLAINANT CANNOT PROCEED AGAINST SOME RESPONDENTS IN FEDERAL COURT WHILE MAINTAINING AN APPEAL BEFORE THE ARB IN REGARD TO OTHER RESPONDENTS

In Fuqua v. SVOX AG , ARB Nos. 14-014, 14-069, ALJ Nos. 2013-SOX-46, 2014-SOX-18 (ARB Aug. 27, 2014), the Complainant filed two SOX complaints naming both business entities and individuals as Respondents. The ALJ granted summary decision on the first complaint against the Complainant, and the Complainant filed a petition for ARB review. A different ALJ recommended dismissal of the second complaint, and the Complainant again requested ARB review. The Complainant notified the ARB that he had filed an action in federal court against the business entity Respondents on the first complaint, but stated that he had not removed any other part of the complaint and continued to seek ARB review regarding the remaining parties. The Respondents then filed a notice with the ARB that the Complainant had filed a district court suit, and argued that this suit deprived the ARB of jurisdiction. The ARB ordered the Complainant to show cause why the Board should not dismiss his complaints pursuant to 18 U.S.C.A. § 1514A(b)(1)(B).

The Complainant argued that the ARB "should allow him to proceed against the named individual Respondents before the Board, while simultaneously proceeding against SVOX AG and SVOX USA, Inc. in district court pursuant to 18 U.S.C.A. § 1514A(b)(1)(B) because (1) international service of process on the individual respondents is difficult and costly, (2) he is entitled to the administrative remedy he seeks, and (3) the case against the individuals cannot be joined with the case he filed in district court." USDOL/OALJ Reporter at 3. The Complainant argued that the second complaint was separate from the first complaint, and thus should not be dismissed by the ARB. The Respondents argued that the federal district court complaint encompassed both OSHA complaints and that OSHA complaints were "based on the same or overlapping facts." Id. at 4.

The ARB stated that section 1514(b)(1)(B) indicates that "the complaint and the action are one and the same and once a complainant files in district court for de novo review of 'the complaint,' jurisdiction over 'the complaint' rests with the district court." Id. The ARB stated that the Complainant provided no argument and no citation to any convincing authority establishing ARB authority to "bifurcate 'the complaint' once an action on the complaint has been filed with the district court and thereby attempt to retain jurisdiction over some portion of the complaint." Id. The ARB stated that inconvenience to the Complainant was not a sufficient basis for the ARB to ignore the limits of the ARB's jurisdiction. The ARB thus held that the district court had complete jurisdiction over the first complaint and the ARB had none. The ARB, however, found that whether the Complainant's district court action also encompassed the second OSHA complaint was unclear, and therefore a three judge panel of the ARB would consider the jurisdiction issue as the case arose in due course.

ARB review dismissed when Complainant filed a complaint in U.S. district court.

The ARB granted the Petitioner's unopposed motion to withdraw its petition for review of a wage determination.