August 2019
Farley v. Altasource, LLC, ARB No. 2016-0091, ALJ No. 2015-FDA-00001 (ARB Aug. 20, 2019) (per curiam) (Final Decision and Order)
Casenote(s):USDOL/OALJ Reporter
CLEAR AND CONVINCING EVIDENCE AFFIRMATIVE DEFENSE; A COMPLAINANT WHOSE JOB DUTIES INCLUDE REPORTING STATUTORY OR REGULATORY COMPLIANCE VIOLATIONS NONETHELESS HAS THE BURDEN OF ESTABLISHING SPECIFIC, IDENTIFIABLE INSTANCES OF PROTECTED ACTIVITY THAT CONTRIBUTED TO ADVERSE EMPLOYMENT ACTION; JOB TITLE ALONE DOES NOT INSULATE AN EMPLOYEE FROM DISCHARGE FOR INCOMPETENCE IN PERFORMING COMPLIANCE DUTIES
In Farley v. Altasource, LLC, ARB No. 2016-0091, ALJ No. 2015-FDA-00001 (ARB Aug. 20, 2019) (per curiam), Complainant worked for eleven days for Respondent, a dietary supplements and cosmetics company, when she was fired. Complainant filed a FDA retaliation complaint alleging that she was fired for her protected activity. After a hearing, the ALJ found that Respondent’s president and vice-president testified credibly that Complainant was discharged because she failed to demonstrate proficiency in the regulatory compliance matters for which she was hired, and established by clear and convincing evidence that Respondent would have discharged Complainant in the absence of her protected activity. The ARB, noting that it gives considerable deference to credibility determinations by ALJs, affirmed the ALJ’s decision.
Complainant’s job duties included reporting compliance violations to Respondent. In this regard, the ARB stated:
We note that where an employee’s regular job duties include reporting to his or her employer any suspected statutory or regulatory compliance violations, those duties may include protected activity under the plain language of 21 U.S.C. § 399d(a). However, this does not mean that the employee cannot be discharged for legitimate reasons unrelated to the protected activity. It is still a complainant’s burden to establish, by a preponderance of the evidence, that specific, identifiable instances of protected activity caused adverse action, just as it is the employer’s burden to properly prove any defense the statute provides.
Id.at 4, n.6. The ARB also stated:
Given the unusual facts of this particular case, it is helpful to clarify that the ALJ concluded that the Complainant had engaged in some poorly specified protected activity. All parties agreed that Complainant had been hired with job duties that, on their face, would include a considerable component of protected activity. However, the ALJ also concluded that Respondent had demonstrated, by clear and convincing evidence, that Complainant’s performance of her job duties was incompetent and that Respondent would have terminated Complainant irrespective of any protected activity. We affirm the ALJ’s finding that Complainant’s job description was separable from her actual job performance and that the distinction supports the result in this appeal.
Id. at 5, n.7.
Harte v. Metropolitan Transportation Authority, ARB No. 2017-0002, ALJ No. 2015-NTS-00002 (ARB Aug. 20, 2019) (per curiam) (Final Decision and Order)
Editor's note: THIS DECISION WAS REISSUED WITH A CORRECTED CAPTION ON SEPTEMBER 6, 2019.
Harte v. Metropolitan Transportation Authority, ARB No. 2017-0002, ALJ No. 2015-NTS-00002 (ARB as reissued with Errata Sept. 6, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
PROTECTED ACTIVITY UNDER THE NATIONAL TRANSIT SYSTEMS SECURITY ACT IS NOT LIMITED TO MATTERS AFFECTING THE PUBLIC, BUT RATHER INCLUDES COMPLAINTS ABOUT WORKPLACE SAFETY
In Harte v. Metropolitan Transportation Authority, ARB No. 2017-0002, ALJ No. 2015-NTS-00002 (ARB as reissued with Errata Sept. 6, 2019) (per curiam), Complainant worked at Respondent’s fabrication shop. Respondent was a public transportation agency subject to the National Transit Systems Security Act (NTSSA). Complainant filed a complaint with a state agency about workplace safety hazards, and was present when state inspectors visited Respondent’s fabrication shop. During the inspection, there was a discussion about the safety and operability of a drill press. Respondent’s representative stated that the drill press was not operable. Disputing this statement, Complainant demonstrated that the drill press was operable by turning it on. Respondent’s representative then threatened to withdraw Complainant’s overtime and to assign him to a less favorable job. Supervisors blamed Complainant for negative changes to the workplace before his coworkers. Complainant filed a retaliation complaint with state agency, which referred the complaint to OSHA.
In a hearing before an ALJ, Respondent contended that the scope of protected activity under the NTSSA is limited to matters affecting the public. The ALJ rejected this contention, finding that “Congress did not evidence an intention to exclude employee—only safety hazards from the broad umbrella of safety threats under the NTSSA, as well as its sister act the Federal Rail Safety Act (FRSA), 49 U.S.C.A. § 20109, as amended by Section 1521 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Pub. L. No. 110-53.” Slip op. at 3. Respondent challenged this ALJ finding on appeal. The Office of the Solicitor, appearing for the Assistant Secretary for OSHA as amicus curiae, joined Complainant in urging the ARB to affirm the ALJ’s finding. The ARB affirmed the ALJ’s finding, writing:
We note that the plain language of the NTSSA protects an employee who reports safety and security concerns and is not limited to actions involving public safety or threats of terrorism. Congress has other employer protection statutes that limit the application of whistleblower protections to the specific public concerns giving rise to a specific parent Act. But in this case, the NTSSA was modeled after the FRSA and shares its implementing regulations. The provisions relating to the FRSA have been interpreted to protect whistleblowers who complain about workplace safety, as have those relating to the NTSSA. As there is no express limiting language under this Act, and safety is referred to a number of times without reference or limitation to public security or terrorism, we reject Respondent’s contention that the NTSSA does not apply to protect safety concerns that do not reach to the general public.
Id. at 4 (footnotes omitted; footnote 4 identified the ERA, STAA and AIR21 as examples of statutes that limit their application to public concerns).
COMPENSATORY DAMAGES; LOST VACATION TIME IS COMPENSABLE
In Harte v. Metropolitan Transportation Authority, ARB No. 2017-0002, ALJ No. 2015-NTS-00002 (ARB as reissued with Errata Sept. 6, 2019) (per curiam), Respondent contended that the ALJ erred in awarding compensatory damages where the only wages lost were covered by paid time off. The ARB was not persuaded, writing: “NTSSA provides that workers who experience retaliation for engaging in protected whistleblower activities are ‘entitled to all relief necessary to make the employee whole.’ 6 U.S.C. § 1142(d)(1). Such relief includes compensation for lost vacation days as they represent terms, conditions, and privileges of employment. Accordingly, we affirm the ALJ’s conclusion that Harte is entitled to compensation in the amount of $1656, representing six days of wages at $276 per day.” Slip op. at 4-5 (footnote omitted).
ATTORNEY’S FEE PETITION; ARB REDUCES UNOPPOSED FEE PETITION AS UNREASONABLE AND UNSUPPORTED FOR 12 HOURS SPENT DRAFTING AN APPELLATE BRIEF WHERE ISSUES HAD BEEN EXTENSIVELY BRIEFED BEFORE THE ALJ, AND THE ALJ HAD ISSUES BEEN EXTENSIVELY DISCUSSED BY ALJ IN A WELL-REASONED DECISION
In Harte v. Metropolitan Transportation Authority, ARB No. 2017-0002, ALJ No. 2015-NTS-00002 (ARB as reissued with Errata Sept. 6, 2019) (per curiam), the ARB reduced Complainant’s counsel’s unopposed petition for attorney’s fees for work before the ARB. The ARB wrote:
With his response brief, Harte’s counsel filed a petition for fees with exhibits requesting $11,298 in attorney’s fees for litigation before the Board. NYCTA has not objected to the amount of this request, but we have examined the petition and find the attorney’s fee request to be inadequately documented and excessive. Specifically, we note that counsel avers that he spent over 12 hours drafting and editing a brief on issues that were extensively briefed, argued, and litigated below, and were the subject of extensive discussion by the ALJ in well-reasoned decision. We are unpersuaded by counsel’s assertions concerning the novelty of this area of practice, and note that the ALJ cited relevant caselaw extending back to 2008. Without adequate and persuasive explanation as to the necessity for such extensive effort, we cannot approve the requested amount, as it is, under the circumstance of this appeal, unreasonable and unsupported. Accordingly, we will reduce the amount billable for effort on the appellate brief in this matter by six hours. We will therefore grant Harte’s request in part and order NYCTA to pay attorney’s fees in the amount of $7,698.00 for services provided by Harte’s counsel before the Board.
Slip op. at 5 (footnote omitted; footnote observed that fee petition requested 18.83 hours of legal services at $600 per hour).
Budri v. Firstfleet, Inc., ARB No. 2018-0055, ALJ No. 2018-STA-00033 (ARB Aug. 19, 2019) (Order Denying Relief)
Casenote(s):
The ARB denied Respondent’s motion to reconsider the ARB’s order of July 30, 2019 vacating its March 25, 2019 Final Decision and Order in light of Complainant’s filing of an action for de novo review in federal district court on February 19, 2019.
In re Kevin M. Tracy and Susan M. Jeannette, ARB No. 2019-0075, ALJ No. 2017-MIS-00001 (ARB Aug. 15, 2019) (Order Denying Petition for Review)
Casenote(s):
ADMINISTRATIVE REVIEW BOARD FINDS NO REGULATORY AUTHORITY FOR IT TO REVIEW CHIEF ALJ’S SUSPENSION OF NON-ATTORNEY REPRESENTATIVE FROM APPEARING BEFORE THE BOARD OF ALIEN LABOR CERTIFICATION APPEALS
In In re Kevin M. Tracy and Susan M. Jeannette, ARB No. 2019-0075, ALJ No. 2017-MIS-00001 (ARB Aug. 15, 2019), Ms. Jeannette petitioned the ARB for review of the Chief ALJ’s order that, inter alia, barred her from appearing as a representative before the Board of Alien Labor Certification Appeals (BALCA). Ms. Jeannette cited 20 C.F.R. § 655.1245 as the authority for ARB review of the Chief ALJ’s order. The ARB denied the petition, finding that § 655.1245 applies to certain types of employer appeals under the H-1C nonimmigrant visa program. The ARB stated that “the cited section does not authorize appellate review of attorney debarment decisions by the CALJ based upon Petitioner's apparent misconduct in proceedings involving a completely different program, i.e., the labor certification process for permanent employment in the United States under 29 C.F.R. Part 656.” Slip op. at 2.
[Editor’s note: The Chief ALJ had directed the Associate Chief ALJ for Longshore and Immigration to conduct a Judicial Inquiry Hearing regarding the qualifications of Mr. Tracy and Ms. Jeannette to continue representing clients before BALCA. BALCA, whose members are ALJs and is chaired by the Chief ALJ, is housed with the Office of Administrative Law Judges (OALJ). The Associate Chief ALJ conducted a hearing, and issued his Recommended Decision and Order on June 10, 2019. In re Kevin M. Tracy and Susan M. Jeannette, 2017-MIS-00001 (ALJ June 10, 2019) (RD&O).
The judicial inquiry arose after it appeared that Mr. Tracy had ignored earlier admonishments from BALCA to personally review and sign, or co-sign, any legal pleadings filed with BALCA because of prior findings that Mr. Tracy had failed to sufficiently monitor the activities of persons working for him, or associated with him, in the representation of clients before BALCA. Mr. Tracy is an attorney, and Ms. Jeannette is an Immigration Processor and the owner of North County Legalization Services (NCLS). For a number of years they had a business association. The association ended acrimoniously in 2012. Although the judicial inquiry touched on several subjects, the most important question was whether misrepresentations had been made to DOL. The Associate Chief ALJ ultimately concluded that the record showed that Mr. Tracy was not responsible for any pending BALCA appeals, and that any pending BALCA appeals that referenced Mr. Tracy are solely the responsibility of Ms. Jeannette and NCLS. While stopping short of making a specific finding that Ms. Jeannette either forged Mr. Tracy’s signature or directed an employee to do so (because of the limited evidentiary nature of a judicial inquiry), the Associate Chief ALJ determined that “Ms. Jeannette was responsible for presenting documents to the Board and to the CO that purported to have Mr. Tracy’s signature when in fact those documents did not have his signature.” RD&O, slip op. at 19 (footnote omitted). The Associate Chief ALJ reviewed the sanctions imposed by BALCA and OALJ in other Judicial Inquiries, and recommended that Mr. Tracy should not be subject to any further discipline by BALCA, but that Ms. Jeannette should be suspended from practice before BALCA and OALJ for two years. The Associate Chief ALJ also recommended that his order be provided to DHS and DOL’s OIG pursuant to 20 C.F.R. § 656.31(b), and to the State Bar of California.
The Chief ALJ ratified and adopted the Associate Chief ALJ’s Recommended Decision and Order on June 11, 2019. In re Kevin M. Tracy and Susan M. Jeannette, 2017-MIS-00001 (ALJ June 11, 2019).]
Lloyd v. Thomas Petroleum, ARB No. 2019-0006, ALJ No. 2018-STA-00061 (ARB Aug. 5, 2019) (Order Dismissing Complaint)
Casenote(s):
Administrative complaint dismissed because Complainant provided notice that he filed a de novo action in U.S. District Court.
Estabrook v. Federal Express Corp., ARB No. 2017-0047, ALJ No. 2014-AIR-00022 (ARB Aug. 8, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
PROTECTED ACTIVITY; COMPLAINANT’S RAISING OF SECURITY CONCERNS ABOUT FEDEX’S ONLINE PACKAGE TRACKING SYSTEM WAS NOT PROTECTED ACTIVITY; REASONABLE BELIEF ELEMENT NOT ESTABLISHED BECAUSE COMPLAINANT KNEW THAT THE COMPLAINED OF ACTIVITY WAS PERMITTED BY THE FAA
In Estabrook v. Federal Express Corp., ARB No. 2017-0047, ALJ No. 2014-AIR-00022 (ARB Aug. 8, 2019) (per curiam), Complainant was a pilot for FedEx. His refusal to fly in bad weather and associated OSHA complaint (later withdrawn when FedEx took no disciplinary action) were both protected activity under AIR21. However, the ARB agreed with the ALJ that, although AIR21 protects providing information about “security” even though security is not specifically mentioned in the status, the security concerns expressed by Complainant during a meeting with management officials did not constitute protected activity in this case. The ARB cited its decision in Hindsman v. Delta Air Lines, Inc., ARB No. 09-023, ALJ No. 2008-AIR-013, slip op. at 5 (ARB June 30, 2010), in which it was found that a “complainant did not engage in protected activity when the complainant knew that the FAA permitted the complained of activity.” The ARB stated that in the instant case, Complainant “could not have had a reasonable belief that publishing low-level flight or tracking information constituted a violation of federal air carrier safety or security laws. Publishing some level of tracking data is an industry-wide practice and not prohibited. . . . The FAA and other related entities had received complaints from Estabrook and others expressing concern about this practice in 2001 and 2002, but did not prohibit the activity. Estabrook was only suggesting a policy change for FedEx to voluntarily or proactively withdraw publishing data to make its safety or security procedures more effective.” Slip op. at 10 (emphasis as in original) (footnote omitted).
ADVERSE ACTION; EMPLOYER’S DIRECTIVE TO A PILOT TO UNDERGO A PSYCHOLOGICAL EVALUATION IS NOT, IN ITSELF, AN ADVERSE EMPLOYMENT ACTION; REQUIRING AN EVALUATION IN A RETALIATORY FASHION, HOWEVER, MIGHT BE ACTIONABLE AS ADVERSE ACTION
In Estabrook v. Federal Express Corp., ARB No. 2017-0047, ALJ No. 2014-AIR-00022 (ARB Aug. 8, 2019) (per curiam), Complainant was a pilot for FedEx. The ALJ concluded that two “Not Operationally Qualified” (NOQ) determinations grounding Complaint from flight duty, and a directive to comply with a 15D fitness for duty examination, were adverse actions under AIR21. Because FedEx did not challenge this conclusion on appeal, the ARB affirmed these findings. However, the ARB included an explanatory footnote:
While we do not disturb the ALJ's findings and conclusions, we note that an employer's directive to a pilot to undergo a psychological evaluation, in and of itself, is not an adverse action. Zavaleta v. Alaska Airlines, Inc., ARB No. 15-080, ALJ No. 2015-AIR-016, slip op. at 11 (ARB May 8, 2017) (an adverse action is “more than trivial” when it is “materially adverse” so as to “dissuad[e] a reasonable worker” from protected activity). FedEx's 15D evaluation is part of an air carrier's safety responsibility for employing a pilot. A requirement of periodic and “for cause” psychological assessments for aircraft pilots is beneficial to the airline community and to the public. For example, it is not an adverse action to require a pilot to undergo physicals and vision and hearing tests to ensure the pilot's physical competency to operate an aircraft. Second, a psychological assessment may benefit a pilot who actually needs counseling. The 15D evaluation is a desirable tool to protect the public and the employer from the foreseeable danger of an accident. Estabrook knew of the 15D process and it was part of the collective bargaining agreement with FedEx. The parties do not dispute that Estabrook continued to be paid during his grounding.
We do not suggest that a directive to undergo a 15D examination, in itself, could never be an adverse action. If selectively implemented or utilized in a retaliatory fashion, subjecting an employee to a 15D evaluation might be actionable as an adverse action.
CONTRIBUTING FACTOR CAUSATION; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING THAT INVESTIGATION INTO COMPLAINANT’S NOT REPORTING AT SCHEDULED TIME FOR FLIGHT THAT HAD BEEN WEATHER DELAYED WAS NOT PROMPTED BY A CONCERN ABOUT A REFUSAL TO FLY BUT RATHER A CONCERN ABOUT FLIGHT REPORTING PROTOCOL
In Estabrook v. Federal Express Corp., ARB No. 2017-0047, ALJ No. 2014-AIR-00022 (ARB Aug. 8, 2019) (per curiam), Complainant was a pilot for FedEx. His refusal to fly in bad weather and associated OSHA complaint (later withdrawn when FedEx took no disciplinary action) were both protected activity under AIR21. The ARB, however, found that substantial evidence supported the ALJ’s finding that FedEx management was not concerned with Complainant’s refusal to fly, but rather had investigated whether Complainant had breached protocol when he stayed at the hotel and did not report to the airport an hour before his flight. The ARB also found that substantial evidence supported the ALJ’s finding that Complainant’s subsequent behavior, and not the refusal to fly, was the reason Complainant was subjected to a psychological fitness for duty evaluation (which resulted in a return to flight duty with no change in pay or status, albeit apparently resulting in Complainant having to participate in training to obtain recertification because the length of the Not Operationally Qualified (NOQ status)).