USDOL/OALJ Reporter: ARB Decision Caselist -- September 2005

USDOL/OALJ Reporter
Decisions of the Administrative Review Board
September 2005

Eash v. Roadway Express, Inc. , ARB No. 04-036, ALJ No. 1998-STA-28 (ARB Sept. 30, 2005)

• Title : Final Decision and Order
• Link : PDF
• Case type : STAA Whistleblower
• Summary :

  • Protected Activity; Work Refusal : The STAA protects two categories of work refusal, commonly referred to as the �actual violation� and �reasonable apprehension� subsections. While 49 U.S.C.A. §31105(a)(1)(B)(i) deals with conditions as they actually exist, 49 U.S.C.A. §31105(a)(1)(B)(ii) deals with conditions as a reasonable person would believe them to be. Whether a refusal to drive qualifies for STAA protection requires evaluation of the circumstances and the particular requirements of each of the provisions. The actual violation category may be applicable if the operation of the vehicle would have violated the DOT "fatigue rule" at 49 C.F.R. § 392.3 (2003). A complainant must prove that there would be an actual violation of the specific requirements of this rule; mere good-faith belief in a violation is insufficient. The reasonable apprehension category is applicable if the complainant has an objectively reasonable apprehension of serious injury to himself or the public because of the vehicle's unsafe condition, which may include a driver's physical condition, including fatigue.

  • Protected Activity; Work Refusal; Actual Violation; Quality of Sleep : The ARB affirmed the ALJ's finding that the Complainant had failed to establish that he was so tired that driving would actually violate the DOT fatigue rule where the Complainant testified that he needed six hours of sleep in a 24 hour period to function adequately, and the evidence showed that he had accumulated more than six hours of sleep in the period before the two dispatches at issue. The ALJ had considered the Complainant's evidence of scientific studies about the quality of fragmented and daytime sleep, the effect of environmental conditions, and being awakened during a principal sleep period, but nonetheless found that the Complainant had not established that there would have been an actual violation of the DOT rule.

  • Protected Activity; Work Refusal; Deliberate Failure to Get Enough Rest; Respondent's Compliance With Rules : The ALJ construed Ass't Sec'y & Porter v. Greyhound Bus Lines , ARB No. 98-116, ALJ No. 1996-STA-23 (ARB June 12, 1998), as compelling a finding that the Complainant was not engaged in protected activity by refusing a dispatch where he deliberately made himself unavailable for work by not taking advantage of time off to get enough rest. The ARB found that the ruling in Porter had created some confusion -- that it did not create a per se exception to the fatigue rule -- rather evidence that the complainant made himself unavailable for work is only one factor to consider. Similarly, a finding that the respondent's operating rules and procedures comply with hours of service regulations or that the respondent did not contribute to the complainant's fatigue do not necessarily remove STAA protection.

He v. Citigroup , ARB No. 04-119, ALJ No. 2004-LCA-16 (ARB Sept. 30, 2005)

• Title : Final Decision and Order
• Link : PDF
• Case type : Labor condition application
• Summary :

  • Summary Decision; Failure to Produce Evidence to Establish Issue of Material Fact; If Discovery Needed to Respond, Steps Must Be Taken to Obtain It : The ALJ properly granted summary decision to the Respondent where the Prosecuting Party's request for hearing was based solely on a contention that the Respondent was underpaying its H-1B employees, and supported solely on a claim naming one employee who was allegedly underpaid. The Complainant did not produce any evidence in response to the Respondent's evidence that this employee was not an H-1B employee and was not underpaid. The Complainant, therefore, failed to establish the existence of an issue of material fact. On appeal the Complainant contended that the ALJ had not permitted her to engage in discovery prior to granting the summary judgment motion, but the ARB found that the Complainant had taken no steps to obtain discovery and had not asserted a need for additional discovery in response to the motion for summary judgment.

Reddy v. Medquist, Inc. , ARB No. 04-123, ALJ No. 2004-SOX-35 (ARB Sept. 30, 2005)

• Title : Final Decision and Order
• Link : PDF
• Case type : SOX whistleblower
• Summary :

  • Timeliness of Complaint; Filing by E-mail; Summary Judgment Standard : The ALJ erred in granting summary judgment to the Respondent based on a finding that the complaint was not timely where OSHA did not receive the complaint until after the limitations period, but a handwritten note on the front of the complaint indicated that the complaint was "originally submitted via email" within the limitations period. Because SOX complaints may be filed by e-mail, 29 CFR § 1980.103(d), and viewing the evidence in the light most favorable to the non-moving party when deciding a motion for summary judgment, summary judgment should not have been granted.

  • Timeliness of Request for Hearing; Date of Receipt of OSHA Findings; Summary Judgment Standard : The ALJ erred in granting summary judgment to the Respondent based on a finding that the Complainant's request for hearing was not timely under the 30-day limitations period. OSHA denied the complaint on January 16, 2004 and the Complainant did not file her request for hearing until March 4, 2004. The Complainant, however, averred in her March 4 filing that she did not receive the OSHA finding until February 4, 2004. Since on a motion for summary judgment the evidence must be viewed in the light most favorable to the non-moving party, summary judgment should not have been granted.

  • Elements of SOX Cause of Action : The legal burdens of proof set forth in AIR21, 49 U.S.C.A. § 42121(b), govern SOX actions. Accordingly, to prevail, a complainant must prove that: (1) the complainant engaged in a protected activity; (2) that the respondent knew that the complainant engaged in protected activity; (3) the complainant suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable action.

  • Summary Judgment; Complainant's Responsive Burden : A complainant must show the existence of a material issue of fact on an essential element of the SOX cause of action if challenged to do so on a motion for summary judgment.

  • Protected Activity; Failure to Show That Information Had Been Provided Regarding Fraud or Violation of SEC Rule or Regulation : The Complainant, a medical transcriptionist, sent three e-mails to a regional manager complaining that local managers had "zapped" the line count of her transcriptions resulting in underpayment to the Complainant. The regional manager cancelled her contract after the third e-mail, the Complainant filed a SOX complaint, OSHA denied the complaint, and after the Complainant requested a hearing, the Respondent filed a motion for summary judgment before the ALJ on the ground that the Complainant had not made a showing of protected activity. The ALJ granted the motion and the ARB affirmed because the Complainant never explained how the e-mails "provided information about conduct she reasonably believed constituted a violation of the federal fraud statutes, or an SEC rule or regulation, or any other federal law relating to shareholder fraud."

  • Waiver of Arguments Not Presented Before the ALJ : Where the Complainant had the opportunity to make her procedural due process arguments before the ALJ, but did not do so, the ARB found that she waived such arguments for appeal.

  • Frivolous or Bad Faith Complaint; Award of Attorney's Fees and Costs : The ARB declined to impose attorney's fees and costs against the Complainant under 49 U.S.C.A. § 42121(b)(3)(C) and 29 C.F.R. § 1980.110(e) where the complaint contained at least an arguable basis in law and where the Respondent did not make a convincing showing that the complaint or the appeal were brought for vexatious reasons.

Safley v. Stannards, Inc. , ARB No. 05-113, ALJ No. 2003-STA-54 (ARB Sept. 30, 2005)

• Title : Final Decision and Order
• Link : PDF
• Case type : STAA whistleblower
• Summary :

  • Protected Activity; Informing the Employer About a Sedative Prescription Medication; Inability to Unload : The Complainant did not engage in protected activity merely by informing his employer about having been prescribed a medication for a back condition that had possible sedative side effects where the physician who prescribed the medication had not imposed any driving restrictions, the Complainant had not taken the medication that date and was not experiencing any side effects, the Complainant had indicated that he could safely complete his driving assignment that day, and he in fact did safely complete the drive. Similarly, the Complainant did not engage in protected activity when he voiced a concern about not being able to unload a load of furniture due to a back condition.

  • Legitimate Nondiscriminatory Reasons for Termination; Lack of Relationship Between Discipline and Motor Vehicle Safety : The Complainant alleged that he was discharged because his back condition made him unable to complete his work assignments due to restrictions on his ability to perform lifting due to a back condition (i.e., inability to assist in unloading the truck). The ARB -- having affirmed the ALJ's finding that the inability to work due to lifting restrictions was not protected activity because there was no connection between the lifting restrictions and motor vehicle safety regulations -- found no unlawful discrimination under the STAA.

Shirani v. Comed/Exelon Corp. , ARB No. 03-100, ALJ No. 2002-ERA-28 (ARB Sept. 30, 2005)

• Title : Final Decision and Order
• Link : PDF
• Case type : ERA whistleblower
• Summary :

  • Causation; Knowledge of Persons Who Made Employment Decision : The ARB affirmed the ALJ's finding that the Complainant failed to prove that the persons who had input into the decision not to offer him a principle auditor position following a corporate reorganization were aware of the Complainant's safety activities in earlier employment. The position to which the Complainant applied would have been a promotion; he did not apply for his current auditor position and was terminated when not selected for the applied for position in the reorganized company. The Complainant on appeal argued that a finding that a newly hired manager made the decision to terminate him without contact from anyone in upper management was preposterous and that he had been terminated as part of a broad conspiracy to cover up safety issues he had raised. The ARB, however, found that the Complainant's theory was barely even rank speculation and that without evidence that the managers who declined to offer him the position he applied for knew about the alleged protected activity, his claim of retaliation was absolutely precluded.

Fraley v. Transervice Logistics, Inc. , ARB No. 05-119, ALJ No. 2005-STA-11 (ARB Sept. 29, 2005)

• Title : Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice
• Link : PDF
• Case type : STAA Whistleblower
• Summary : Approval of settlement

Administrator, Wage & Hour Division, USDOL v. Halsey , ARB No. 04-061, ALJ No. 2003-CLA-5 (ARB Sept. 29, 2005)

• Title : Final Decision and Order
• Link : PDF
• Case type : Child labor provisions of the Fair Labor Standards Act
• Summary :

  • De Novo Standard of Review : The ARB conducts de novo review of an ALJ's decision involving civil money penalties for violations of the child labor provisions of the FLSA.

  • Covered Employee : An employee who engages in commerce is individually covered under the FLSA regardless of whether his or her employer qualifies as a covered enterprise.

  • Oppressive Child Labor : The work of a minor between the ages of 14 and 16 in the commercial net fishing industry may, in some instances, be deemed oppressive child labor pursuant to 29 C.F.R. §�570.33(f)(1) and 570.119(f)(1) if it involves work in an occupation in connection with the transportation of property by water.

  • Covered Employee; economic reality test : The ALJ properly applied an economic reality test in finding that a minor was not a self-employed independent contractor but an "employee" for purposes of the FLSA. The fact that the work was seasonal was not significant, and the fact that the minor worked for consecutive summers created an ongoing working relationship.

  • Civil Money Penalty : The ALJ properly found that the maximum statutory penalty of $11,000 was appropriate where matter involved a child of 14 who died while employed in commercial salmon fishing, and there were not sufficient mitigating factors to outweigh the gravity and tragic consequences of the violation.

Denault v. Keenan Transit Co. , ARB No. 05-141, ALJ No. 2004-STA-48 (ARB Sept. 28, 2005)

• Title : Final Order Approving Settlement Agreement and Dismissing Complaint
• Link : PDF
• Case type : STAA Whistleblower
• Summary : Approval of settlement

Mc Andrews v. Airborne Express , ARB No. 05-126, ALJ No. 2005-STA-31 (ARB Sept. 28, 2005)

• Title : Final Decision and Order Approving Settlement and Dismissing Complaint
• Link : PDF
• Case type : STAA Whistleblower
• Summary : Approval of settlement

Davis v. Fonda Kaye, Inc. , ARB No. 05-152, ALJ No. 2005-STA-42 (ARB Sept. 27, 2005)

• Title : Final Decision and Order
• Link : PDF
• Case type : STAA Whistleblower
• Summary :

  • Dismissal : Withdrawal of objections to OSHA findings

Langston v. Powell-Christiansen, Inc. , ARB No. 05-114, ALJ Nos. 2003-STA-3 and 4 (ARB Sept. 27, 2005)

• Title : Final Decision and Order Dismissing Complaint with Prejudice
• Link : PDF
• Case type : STAA Whistleblower
• Summary :

  • Dismissal : Abandonment of STAA complaint

Palmer v. G.W. Lumber & Millwork, Inc. , ARB No. 04-141, ALJ No. 2004-STA-45 (ARB Sept. 27, 2005)

• Title : Final Decision and Dismissal Order
• Link : PDF
• Case type : STAA Whistleblower
• Summary :

  • Dismissal : Withdrawal of objections to OSHA findings