USDOL/OALJ Reporter: ARB Decision Caselist -- September 2009

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Summary :

PROTECTED ACTIVITY; PILOT'S AUTHORITY TO DECLARE HIMSELF AND HIS CREW UNFIT TO FLY

In Douglas v. Skywest Airlines, Inc. , ARB Nos. 08-070, 08-074, ALJ No. 2006-AIR-14 (ARB Sept. 30, 2009), the ARB found that substantial evidence supported the ALJ's finding that the Complainant engaged in protected activity when he declared himself and his crew unfit to fly, and informed his supervisors. The ALJ found that the Complainant genuinely believed that he would be violating air safety regulations if he flew, and that belief was objectively reasonable. In regard to the fitness of the crew, the ALJ pointed to federal regulations conferring final authority and responsibility on the pilot in control of the aircraft. Although the Employer argued that this ruling would permit crewmembers to refuse assignments based on the mere speculation that they will not get sufficient rest and might be unfit later when the flying is to take place, the ARB found that substantial evidence supported the ALJ's finding that the Complainant was unfit at the time he so declared. The Complainant had discomfort from a recent medical procedure, and had just endured an arduous three-hour flight in inclement weather.

CONTRIBUTING CAUSE; BUSINESS JUDGMENT RULE; ALJ DOES NOT VIOLATE THE RULE MERELY BY REVIEWING THE RESPONDENT'S ACTIONS AND FINDING THAT THE COMPLAINANT WAS SINGLED OUT

In Douglas v. Skywest Airlines, Inc. , ARB Nos. 08-070, 08-074, ALJ No. 2006-AIR-14 (ARB Sept. 30, 2009), the Respondent argued that the ALJ violated the "business judgment" rule by second-guessing the Respondent's actions in using hand-writing analysis to determine whether the Complainant was responsible for obscene graffiti posted in the crew lounge. The ARB found that the ALJ had found that the Respondent had singled out the Complainant based on a sequence of events leading up to the firing of the Complainant, including the fact that the only the Complainant's handwriting samples were provided to the Respondent's expert. The ALJ had not decided whether the experts were wrong or right or whether the Respondent reasonably relied on their opinions. The ARB cited prior authority to the effect that an ALJ does not run afoul of the business judgment rule where finding that protected activity contributed to a termination decision based on a variety of factors.

CONTRIBUTING CAUSE; FINDING OF PRETEXT IS NOT A PREREQUISITE

In Douglas v. Skywest Airlines, Inc. , ARB Nos. 08-070, 08-074, ALJ No. 2006-AIR-14 (ARB Sept. 30, 2009), the ARB rejected the Respondent's argument that, since the Complainant did not prove pretext, he could not have proved by a preponderance of the evidence that protected activity contributed to his discharge. The ARB stated that it had not held that pretext must be proven to establish that protected activity was a contributing factor, but only that an ALJ may employ, if appropriate, Title VII methodology for analyzing and discussing evidentiary burdens of proof in AIR21 cases.

CLEAR AND CONVINCING EVIDENCE; EVIDENCE OF PRETEXT PREVENTS RESPONDENT FROM MEETING BURDEN; EVIDENCE THAT RESPONDENT "COULD" HAVE FIRED THE COMPLAINANT DOES NOT REFLECT RESPONDENT'S BURDEN OF PROOF

In Douglas v. Skywest Airlines, Inc. , ARB Nos. 08-070, 08-074, ALJ No. 2006-AIR-14 (ARB Sept. 30, 2009), the Complainant proved that his protected activity was a contributing cause of his termination, and the burden then shifted to the Respondent to show by "clear and convincing" evidence that it would have terminated the Complainant absent his protected activity. The ARB found that where the Employer's shifting explanations for its adverse action and its disparate treatment of the Complainant for the conduct of which he was accused evidenced pretext, the Respondent could not prove that it would have terminated the Complainant even if he had not engaged in protected activity. Clear and convincing evidence that the Respondent "could" have fired the Complainant for an incident failed because the Respondent's burden is to show that it "would have" terminated the Complainant for the incident -- not that it "might have" or "could have."

DAMAGES; ALJ DID NOT ERR IN REOPENING THE RECORD FOR PRESENTATION OF EVIDENCE ON DAMAGES

In Douglas v. Skywest Airlines, Inc. , ARB Nos. 08-070, 08-074, ALJ No. 2006-AIR-14 (ARB Sept. 30, 2009), the Respondent argued that the Complainant was not entitled to back pay or any other damages because he did not present evidence of such at the hearing, and that the ALJ erred by reopening the record for presentation of such evidence. The ARB found that "[g]ranting leave to reopen the record is committed the sound discretion of the trial judge" and therefore "the ALJ did not abuse his discretion in reopening the record." USDOL/OALJ Reporter at 19 (footnote omitted).

MITIGATION OF DAMAGES; RESPONDENT'S BURDEN TO SHOW THAT COMPARABLE JOBS WERE AVAILABLE

In Douglas v. Skywest Airlines, Inc. , ARB Nos. 08-070, 08-074, ALJ No. 2006-AIR-14 (ARB Sept. 30, 2009), the ARB noted that a respondent's burden to show that a complainant had not mitigated damages relating to wages was to establish (1) that comparable jobs were available, and (2) that the employee failed to make reasonable efforts to find substantially equivalent and otherwise suitable employment. In the instant case, the Respondent argued that because the Complainant had opted to stay home with his children instead of looking for work, it did not have to show that substantially equivalent positions were available. The ARB, noting that the ALJ found that the Complainant's seniority had earned him the benefit of being able to take care of his children during the day, found that the Respondent was not absolved of the first element of its burden to prove that comparable jobs were available.

DAMAGES; EVIDENCE FOR BONUSES, RAISES AND PER DIEM PAYMENTS MUST BE SUPPORTED BY ACTUAL PAY RECORDS

In Douglas v. Skywest Airlines, Inc. , ARB Nos. 08-070, 08-074, ALJ No. 2006-AIR-14 (ARB Sept. 30, 2009), the ALJ did not err in finding that the Complainant's evidence was "far too speculative" to award bonuses, pay raises, and per diems, because the Complainant did not submit any records substantiating a predictable pattern or rate at which he had received such amounts. Although the Complainant offered an expert opinion, it had been supported by only two actual pay records, and all other calculations were in the form of unsupported spreadsheets.

DAMAGES; 401K CONTRIBUTIONS; EVIDENCE MUST SHOW HOW THE CONTRIBUTIONS WERE CALCULATED

In Douglas v. Skywest Airlines, Inc. , ARB Nos. 08-070, 08-074, ALJ No. 2006-AIR-14 (ARB Sept. 30, 2009), the ARB affirmed the ALJ's denial of reimbursement for 401K contributions where the supporting evidence was inadequate to show how much the reimbursement should be. A single pay stub showed that a 401K contribution had been made, but did not evidence how that contribution had been calculated.

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Summary :

ATTORNEY-CLIENT PRIVILEGE

In Jordan v. Sprint Nextel Corp. , ARB No. 06-105, ALJ No. 2006-SOX-41 (ARB Sept. 30, 2009), the ARB ruled that an in-house, attorney-complainant may rely on statements or documents covered by the attorney-client privilege in support of a SOX Section 806 whistleblower complaint.

The ARB noted that DOL's rules governing SOX whistleblower complaints provide that the hearings are to be conducted in accordance with the ALJ rules of practice and procedure at 29 C.F.R. Part 18, and that section 18.501 provides that, except as otherwise required by law, privileges shall be governed by the federal common law. The ARB then noted that SOX Section 307 required the SEC to issue rules on attorney conduct before the SEC, and that SEC consequently implemented rules at 17 C.F.R. Part 205. Those rules require an attorney to report evidence of a material violation by the issuer to the chief legal counsel or chief executive officer, or if that is unsuccessful, to the audit committee of the board of directors. The SEC rules permit an attorney to use any Part 205 report or response thereto in any investigation, proceeding or litigation in which the attorney's compliance with SOX Section 307 and its implementing regulations is in issue, and to report a reasonable belief of a discharge based on such a report to the issuer's board of directors or any committee thereof. The ARB also reviewed its own decision in Willy v. The Coastal Corp. , ARB No. 97-107, ALJ No. 1985-CAA-1 (ARB Feb. 27, 2004), and the 5th Circuit's later decision overruling the ARB in Willy v. The Coastal Corp. , 423 F.3d 483 (5th Cir. 2005). The ARB noted that the ALJ had relied on court's Willy decision to find that federal common law governs questions of privilege in the instant context, and that the ABA Model Rules supported the conclusion that the Complainant was not precluded from relying on statements or documents covered by attorney-client privilege in pursuit of his SOX whistleblower complaint. The ALJ emphasized that Congress has created in SOX a statute that requires attorneys to report violative conduct, and had at the same time created whistleblower protection that did not except attorneys.

In its analysis, the ARB found two factors not present in Willy that led it to a different conclusion from the one it had reached in Willy . First, the ARB found that it would defer to the SEC's regulations and interpretative guidance to the extent that they would permit the Complainant to use otherwise privileged matters. Second, the SOX contains both a mandatory reporting requirement for attorneys (Section 307) and a whistleblower protection section (Section 806), which should be read together to provide a remedy. The ARB looked to the SEC's comments in the promulgation of its attorney conduct rules to find that section 205.3(d)(1) is the effective equivalent of ABA Model Rule 1.6(b)(3) (now numbered 1.6(b)(5)), which allows an attorney to use attorney-client privileged material to establish a retaliatory discharge claim against the attorney's employer. Because the OALJ rule at 29 C.F.R. 18.501 gives an ALJ the authority to follow the SEC privilege rule at 17 C.F.R. 205.3(d)(1), the ARB found it unnecessary to either non-acquiesce or follow the Fifth Circuit's decision in Willy . The ARB agreed with the ALJ that the SOX reporting requirement for attorneys together with whistleblower protection in the same statute is strong evidence that Congress intended that such attorneys would be protected in reporting violations, and can use otherwise privileged materials in whistleblower proceedings "subject to protective, in camera, or other orders the ALJ may issue with the objective of protecting privileged communications." See 29 C.F.R. 18.46(a).

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Summary :

OFCCP INSPECTIONS; FOURTH AMENDMENT

In OFCCP v. Bank of America , ARB No. 07-090, ALJ No. 2006-OFC-3 (ARB Sept. 30, 2009), the ARB found that OFCCP's proposed on-site records inspection and employee interviews did not violate the 4th Amendment because OFCCP had administrative probable cause for such. The ARB wrote:

For an administrative search to be valid under the Fourth Amendment, an agency must first show probable cause. In Marshall v. Barlow' ' s , the Supreme Court held that administrative probable cause is established when there is either ""specific evidence of an existing violation""or when it is established that the agency chose the particular company according to ""reasonable legislative or administrative standards."" The Fifth Circuit, interpreting Barlow' ' s, has held that a warrantless administrative search is reasonable if it is: (1) authorized by statute; (2) properly limited in scope; and (3) initiated in a proper manner. The third element requires an examination of the agency''s selection method: the search will be reasonable if based on either specific evidence of an existing violation, reasonable legislative or administrative standards, or an administrative plan containing neutral criteria.

USDOL/OALJ Reporter at 8 (footnotes omitted). The ARB noted that an established exception to both a warrant and probable cause is a search conducted to consent, with the government bearing the burden of providing that consent was freely and voluntarily given. In the instant case, substantial evidence supported the ALJ's finding that consent was given by the Respondent when it turned over its AAP and supporting documents to OFCCP during the desk audit stage of a compliance review. Thus, since the Respondent consented to the desk audit, the ARB found that it was not necessary to consider whether OFCCP selected the facility in question for compliance review in accordance with a neutral administrative plan. The ARB agreed with the ALJ, however, that the Respondent did not consent to an on-site visit, and therefore probable cause must be shown.

The ALJ and ARB rejected OFCCP's regression analysis as sufficient evidence of an existing violation, but nonetheless found that information contained in data from the desk audit created a reasonable suspicion of a violation -- specifically certain tables indicated that for certain groups of employees, salaries of males were approximately 9 to 23 % higher than females, and that the average salaries of non-minorities were approximately 5 to 23% higher than those of minorities. This was sufficient evidence to justify an on-site review. The ARB ordered the Respondent to cease and desist from denying OFCCP access to its facility. The ARB ordered that if that the Respondent failed to comply, its current government contracts would be canceled, terminated or suspended, and the Respondent would be declared ineligible for further contracts and subcontracts, or extension or modification of existing contracts or subcontracts, until it came into compliance.

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Summary :

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; CONCEALMENT OF REASON FOR ADVERSE ACTION

In Coppinger-Martin v. Nordstrom, Inc. , ARB No. 07-067, ALJ No. 2007-SOX-19 (ARB Sept. 25, 2009), the Complainant asserted that the limitations period for filing her SOX whistleblower complaint did not begin to run until she learned that her job duties had not been eliminated, because prior to that time she had no reason to know that her termination had been in retatliation for engaging in SOX activity. In affirming the ALJ's finding that equitable tolling or estoppel did not apply, the ARB cited its decision in Halpern v. XL Capital, Ltd. , ARB No. 04-120, ALJ No. 2004-SOX-54 (ARB Aug. 31, 2005), where it held:

Neither the statute [SOX] nor its implementing regulations indicate that a complainant must acquire evidence of retaliatory motive before proceeding with a complaint. Halpern's failure to acquire evidence of [his employer's] motivation for his suspension and firing did not affect his rights or responsibilities for initiating a complaint pursuant to the SOX.

The ARB wrote in regard to the instant case:

   Concealing the reason for an adverse employment action does not toll the statute of limitations governing a whistleblower claim, nor does it estop the employer from asserting timeliness as a defense.29 Moreover, if equitable tolling and equitable estoppel applied whenever an employer gave a non-discriminatory reason for its adverse employment decisions, it would be tantamount to asserting that an employer is equitably estopped whenever it does not disclose a violation of [a discrimination] statute.� ... If this were the case, the [time limit] for filing a charge would have little meaning.�30

USDOL/OALJ Reporter at 6 (footnote omitted).

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Summary :

REFUSAL TO HIRE; COMPLAINANT MUST SHOW THAT HE PROPERLY APPLIED TO AN OPEN POSITION AND THAT HE WAS QUALIFIED

In Levi v. Anheuser Busch Companies, Inc. , ARB No. 08-086, ALJ No. 2008-SOX-28 (ARB Sept. 25, 2009), the ARB held:

[I]n a case dealing with an applicant and prospective employer, the successful complainant must show that he properly applied to an open position for which the company was seeking applicants and that he was qualified.

In the instant case, the Complainant failed to offer evidence that he properly applied for a job for which the Respondent was seeking applicants and that he was qualified. The ARB wrote:

Indisputably, if the employer is not hiring for a position to which an applicant sends an unsolicited letter offering his services, the employee does not suffer an adverse action, if he is not hired. As the ALJ noted, "[a] simple wish to be rehired is not an adverse employment action under the Act as related to a former employee."

USDOL/OALJ Reporter at 5-6 (footnote omitted). Moreover, the ARB found that the Complainant's bare claim that he had worked in job for which an Internet job posting had been made, was insufficient because the Complainant had presented no evidence that he satisfied the requirements or competencies or had the required experience for the job.

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Summary :

ALTHOUGH SECTION 29 C.F.R. § 18.6(b) ITSELF DOES NOT COMPEL A RESPONSE TO A MOTION, THE ALJ HAS THE AUTHORITY TO ORDER A RESPONSE; AN ALJ IS NOT REQUIRED TO CULL THROUGH PRIOR FILINGS TO IDENTIFY APPROPRIATE RESPONSIVE ARGUMENTS

In Rowland v. National Association of Securities Dealers , ARB No. 07-098, ALJ No. 2007-SOX-6 (ARB Sept. 25, 2009), the Complainant argued that a complainant's response to a respondent's dismissal motion is optional, citing 29 C.F.R. § 18.6(b). The ARB found that "§ 18.6(b) does not negate the discretion given the ALJ to set matters for argument and/or call for the submission of briefs or to rule that a decision be rendered against a party who does not comply with an order." USDOL/OALJ Reporter at 8 (footnote omitted). Thus, where the ALJ ordered the Complainant to respond the Respondent's motions, it was within her discretion under § 18.6(d)(2)(v) to dismiss the complaint when the Complainant did not timely respond. The Complainant argued that her prior filings were sufficient to defeat the motion. The ARB, however, held that "[i]t is not the task of the ALJ to cull through a party's assorted filings to identify what the party might argue in response to a motion to dismiss or motion for summary decision." USDOL/OALJ Reporter at 9 (footnote omitted). Dismissal of the complaint was not too severe a sanction where the ALJ had previously granted two extensions of time for a response and warned that no further extensions would be granted absent exigent circumstances, and highlighted the due date for the response. Lack of prejudice to the other party is not sufficient reason to allow a party to disregard an ALJ order.

TIMELY RESPONSE TO ORDER TO SHOW CAUSE; FAILURE TO IMMEDIATELY REQUEST EXTENSION OF TIME ONCE UNTIMELY RECEIPT OF ORDER KNOWN

In Rowland v. National Association of Securities Dealers , ARB No. 07-098, ALJ No. 2007-SOX-6 (ARB Sept. 25, 2009), the ARB found that although it appeared that the Complainant had good reason for not responding to an ALJ's Order to Show by the stated deadline because she did not timely receive the ALJ's order, she failed to provide good reason for not immediately requesting an extension of time to file her response, but instead waited an additional five days to file a response without providing a reason justifying the delay. In part, the Complainant had argued that she had been monitoring the ALJ web site for orders issued in her case. The ARB, however, found that the Privacy Act routine use statement specified that ALJ decisions and interim orders of general interest are published, and that upon its review of the ALJ web site, it was appeared that interim orders are published infrequently.

TIMELINESS OF RESPONSE TO ALJ ORDER; SECTION 18.4(c) DOES NOT PROVIDE AN ADDITIONAL FIVE DAYS FOR MAILING A RESPONSE WHERE THE ALJ CLEARLY PROVIDED A SPECIFIC RECEIPT DUE DATE

In Rowland v. National Association of Securities Dealers , ARB No. 07-098, ALJ No. 2007-SOX-6 (ARB Sept. 25, 2009), the Complainant argued that she had been denied the benefit of the five extra days under 29 C.F.R. § 18.4(c) to mail a response to an ALJ order. The ARB rejected the argument making a distinction between an ALJ order requiring a response within a "prescribed period" (e.g., "30 days," "10 days" etc.) and a specific date specified as a deadline. In the instant case, the ALJ's order made it clear that the response would be timely if "received by" a certain date, and made it abundantly clear that filing meant date of receipt by OALJ.

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Summary :

[STAA Whistleblower Digest II B 2 e]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING BASED ON CONTINUOUS AVAILABILITY OF ALLEGEDLY FALSE REPORT ON CONSUMER DATABASE

In Eubanks v. A.M. Express, Inc. , ARB No. 08-138, ALJ No. 2008-STA-40 (ARB Sept. 24, 2009), the Complainant alleged that he was entitled to equitable tolling of the limitations period for filing a STAA complaint because he was being blacklisted as the result of "DAC" report, which is a report maintained by a consumer reporting agency on commercial truck drivers. The Respondent had reported that the Complainant had a late pick up and delivery, whereas the Complainant maintained that he had never been late except when he could not do so without violating the hours of service regulations. The ARB found that the DAC report by the Respondent was only one adverse action, and the fact that the report is still accessible does not create a continuous violation by the Respondent. Thus, equitable tolling did not apply.

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Summary :

Approval of stipulated dismissal.

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Summary :

[Nuclear and Environmental Whistleblower Digest VIII C 1]
ERA PROVISION PERMITTING REMOVAL TO FEDERAL DISTRICT COURT IF DOL HAS NOT ISSUED FINAL DECISION WITHIN ONE YEAR OF FILING OF COMPLAINT DOES NOT HAVE RETROACTIVE EFFECT

In Speegle v. Stone & Webster Construction, Inc. , ARB No. 06-041, 2005-ERA-6 (ARB Sept. 24, 2009), after the Complainant filed a petition for review with the ARB, he filed a notice of intent to file in federal district court pursuant to 42 U,S.C. § 5851(b)(4), which was a 2005 amendment to the ERA providing jurisdiction in federal district court over ERA whistleblower complaints in certain circumstances. The ARB issued an order to show cause why it should not proceed to decide the case and issue the final agency decision. The ARB agreed with the Respondent's response that section 5851(b)(4) did not have retroactive effect to cover the instant complaint which was already pending when the ERA was amended. The ARB found applicable the 8th Circuit decision in Elbert v. True Value Co. , No. 08-1222 (8th Cir. Dec. 19, 2008) (case below 2005-STA-36), which found an analogous amendment to the STAA not to be retroactive in effect. In the remainder of the decision, the ARB reversed the ALJ's decision denying the complaint, and found in favor of the Complainant.

[Nuclear & Environmental Digest XI C 2 a]
PRETEXT; ALTHOUGH CERTAIN FACTORS FOUND BY THE ALJ NOT TO SHOW PRETEXT MAY BE SUPPORTED BY SUBSTANTIAL EVIDENCE, ARB MAY FIND OTHER SUBSTANTIAL EVIDENCE IN THE RECORD EVIDENCES PRETEXT

In Speegle v. Stone & Webster Construction, Inc. , ARB No. 06-041, 2005-ERA-6 (ARB Sept. 24, 2009), although the ARB found that substantial evidence supported the ALJ's findings of a lack of direct or circumstantial evidence that the Complainant's protected activity contributed to the Complainant's suspension and termination, the ARB found other substantial evidence in the record to support its finding that the Respondent's shifting explanations for the termination were a pretext for retaliation. The ARB found that the Respondent had in fact invented different reasons for terminating the Complainant and that the Respondent had treated the Complainant differently than similarly insubordinate employees.

Specifically, although the Respondent's payroll removal form showed that the Complainant had been removed for insubordination, the Respondent stated in a TVA OIG investigation that the Complainant had been terminated because he was not going to follow a change in procedures (permitting certified apprentices to perform protective painting functions within the facility core) rather than use of offensive language. The Respondent repeated this later rationale in the ALJ hearing. The ARB faulted the ALJ for failing to adequately examine or explain this discrepancy.

The ARB also found that other subordinate employees had been treated more leniently for insubordinate conduct. The ARB rejected the ALJ's findings that the employees were not similarly situated because they had different supervisors, the offenses were not of comparable seriousness, and the Complainant was a foreman who made his insubordinate comments in front of subordinate employees. The ARB found that the difference in supervisors was a non-dispositive factor, because although different supervisors may judge varying insubordinate behavior differently, the insubordinate behavior in the instant cases was identical. The ARB found that pretext was involved in the reason given by the Respondent for determining that the Complainant's insubordinate behavior was grounded in a decision not to obey rules. Therefore the record did not support the ALJ's finding that the insubordination of the other employees was not as serious as the Complainant's insubordination. Finally, the ARB found that the ALJ had parsed the record too closely to conclude that the Complainant's insubordination as a foreman in front of subordinates was more serious than the insubordination of the other employees. The ARB found that although the Complainant was a foreman, one of the other employees was a professional who was expected to comport himself in the same manner as a foreman.

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Summary :

Approval of settlement agreement.

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Summary :

Complaint dismissed as untimely filed.

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Summary :

[Nuclear & Environmental Whistleblower Digest XII A]
PROTECTED ACTIVITY; MUST RELATE DEFINITIVELY AND SPECIFICALLY TO THE SUBJECT MATTER OF THE PARTICULAR STATUTE

In Carpenter v. Bishop Well Services Corp. , ARB No. 07-060, ALJ No. 2006-ERA-35 (ARB Sept. 16, 2009), the ARB held that the Complainant did not engage in protected activity under the ERA, environmental, and pipeline safety whistleblower statutes when he spoke to OSHA about high pressure on service rig hoses, and missing handrails on his rig. The ARB agreed with the ALJ that the Complainant did not report any concerns about nuclear, pipeline or environmental hazards when he spoke to OSHA.

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Summary :

[STAA Digest VI B 4]
ADVERSE ACTION; COMPLAINANT FAILED TO PROVE THAT THE RESPONDENT PRESENTED FALSE INFORMATION OR MISLEADING STATEMENTS IN A GRIEVANCE PROCEEDING IN RETALIATION FOR PROTECTED ACTIVITY

In Farrar v. Roadway Express , ARB No. 08-015, ALJ No. 2005-STA-46 (ARB Sept. 15, 2009), the Complainant alleged that the Respondent violated the whistleblower provision of the STAA when, in retaliation for filing prior STAA complaints against the Respondent, the Respondent's agents presented false information and misleading statements at a grievance panel hearing about the Complainant's discharge after a serious accident. The ARB agreed with the ALJ that to prevail, the Complainant had to first establish that the Respondent had presented false and misleading representations to the committee. The ARB found that a severe blow to the Complainant's case occurred when the grievance committee upheld the Complainant's termination. The ARB found that the Complainant's case essentially reduced to the contention that the committee accepted the Respondent's position rather than his own because it would believe anything that the Respondent's labor relations manager said at the hearing. The ARB found this argument -- that the manger had a reputation for being knowledgeable about the trucking industry and straightforward and honest in his dealings with the committee -- to be antithetical to the Complainant's contention that the manager either out of ignorance or retaliatory intent, presented a baseless case to the committee which was too blind to see through. The ARB found absolutely no proof that the committee was unduly swayed by the manager's credibility. The ARB cited the ALJ's conclusion that ultimately, there was no dispute that the accident happened and that this was the issue before the grievance committee; the Respondent's contention that the accident happened because the Complainant feel asleep did not exceed the limits of fair and reasonable adversarial argument. Because the ARB found that substantial evidence supported the ALJ's finding that the Complainant failed to establish that the Respondent presented false information and misleading statements at the grievance proceeding, the ARB did not reach of the issue of whether defending a grievance could ever constitute adverse action.

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Summary :

The ARB reduced requested hours for work by the Complainant's attorney before the ALJ and the ARB where the attorney failed to submit an appropriately itemized and documented attorney fee application.

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Summary :

Dismissal of appeal based on failure to prosecute.

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