USDOL/OALJ Reporter: ARB Decision Caselist -- September 2010

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Summary :

Approval of settlement.

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Summary :

CLEAR AND CONVINCING EVIDENCE; STANDARD OF PROOF

In Clark v. Airborne, Inc. , ARB No. 08-133, ALJ No. 2005-AIR-27 (ARB Sept. 30, 2010), the ARB affirmed the ALJ's findings that the Complainant failed to establish that his protected activity contributed to his layoff, and alternatively, that even if the Complainant's protected activity was a contributing factor to his layoff, the Respondent's reasons for the layoffs constituted clear and convincing evidence that it would have laid off the Complainant absent his protected activity. The Respondent's financial straits were well documented, the Complainant's position had been part time prior to Complainant's promotion to the position, the Respondent also laid off other employees, and the Complainant had recently requested a 20 percent raise which was unwise and untimely given the Respondent's circumstances. In making the finding on the "clear and convincing evidence" element, the ARB explained:

    Clear and convincing evidence denotes a conclusive demonstration; it indicates "that the thing to be proved is highly probable or reasonably certain." This standard of proof is more rigorous than the preponderance-of-the-evidence standard but lower than the beyond-a-reasonable-doubt criterion of criminal cases. Thus, clear and convincing evidence that an employer would have fired the employee absent protected activity overcomes the fact that an employee's protected activity played a role in the employer's adverse action and relieves the employer of liability.

USDOL/OALJ Reporter at 9-10 (footnotes omitted).

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Summary :

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; EEOC COMPLAINT; FAILURE OF ATTORNEY TO FILE SOX COMPLAINT; EEOC DOES NOT HAVE THE OBLIGATION TO INFORM COMPLAINANTS ABOUT SOX

In Jones v. First Horizon National Corp. , ARB No. 09-005, ALJ No. 2008-SOX-60 (ARB Sept. 30, 2010), the Complainant filed an EEOC complaint alleging sex and race discrimination and retaliation for filing Title VII suits. She filed a SOX complaint with OSHA over a year and a half after the Respondent terminated her employment, but argued that she was entitled to equitable tolling because she mentioned fraud in an exhibit appended to an EEOC complaint, and because she had been reasonably diligent in asking her former attorney to file a whistleblower complaint on several occasions and her new attorney filed within three months after joining her case. The ARB, however, agreed with the ALJ that the letter appended to the EEOC complaint had not alleged that the termination was related to any protected whistleblower activity, and that referencing concerns of potential corporate fraud in a letter appended to a complaint alleging sex and race discrimination did not constitute a precise statement of a SOX claim in another forum. The ARB also agreed with the ALJ that ignorance of the law was not a grounds for equitable modification in this case. The Complainant also argued that the EEOC had failed to instruct her how to file a SOX complaint, but the ARB found that in the absence of evidence that the EEOC or the Respondent "actively misled" her, equitable modification was inapplicable. The ARB stated that neither the EEOC nor the Respondent were obligated to inform the Complainant of Section 806 and its filing requirements.

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Summary :

[STAA Whistleblower Digest II B 3]
TIMELINESS OF COMPLAINT; ORAL COMPLAINT SUFFICIENT UNDER THE STAA; CREDIBLE TESTIMONY SUFFICIENT TO ESTABLISH THAT PHONE CONVERSATIONS WITH OSHA INCLUDED ALLEGATION OF DISCRIMINATION

In Klosterman v. E.J. Davies, Inc. , ARB No. 08-035, ALJ No. 2007-STA-19 (ARB Sept. 30, 2010), the Complainant testified credibly that he had several phone conversations with OSHA representatives, including complaints of retaliation, within the STAA whistleblower 180 day limitations period. The Respondent argued that a letter the Complainant had written to the DOT did not allege discrimination, and that he did not have any written accounts of his alleged complaints made by phone, and that during part of the limitations period he had been represented by private counsel. However, the ARB agreed with the ALJ that under the STAA and implementing regulations a written complaint is not required, that the phones calls had been made and were valid complaints, and therefore the complaint was timely. See 29 C.F.R. § 1978.102(b) ("No particular form of complaint is required.").

[STAA Digest VI B 1]
ADVERSE ACTION; AN EMPLOYER WHO DECIDES TO INTERPRET AN EMPLOYEE'S ACTIONS AS A QUIT OR RESIGNATION HAS IN FACT DECIDED TO DISCHARGE THAT EMPLOYEE

In Klosterman v. E.J. Davies, Inc. , ARB No. 08-035, ALJ No. 2007-STA-19 (ARB Sept. 30, 2010), there was undisputed evidence that the day before the date the Complainant's employment ended, the Respondent's owner had drafted a letter to the union representative to the effect that it would be in the best interests of both the union and the Respondent for the Complainant to be replaced as shop steward to improve relations with customers and so that the owner would not be confronted as often with complaints from the Complainant about the condition of vehicles and equipment. The letter was not sent. On appeal, the ARB characterized the dispute as centering on whether the owner took any action to fulfill his goal to get rid of the Complainant.

The ALJ found that on the last day of the Complainant's work, the Complainant complained to the owner about the condition of the truck he was to drive, and the owner told the Complainant to drive it or go home. The Complainant walked out when the owner refused to assign him to a different truck. After the Complainant left, the owner sent a letter to the union representative stating that the Complainant had quit.

The ARB found "[i]mplicit in the ALJ's findings is the reasonable inference that Vordermeier affirmatively took steps to perfect the end of Klosterman's employment by exploiting Klosterman's ambiguous departure on December 20, 2005." USDOL/OALJ Reporter at 8. The ALJ found that this was an actual discharge, but also a voluntary abandonment of his job by the Complainant, and therefore not adverse employment action.

The ARB accepted the ALJ's factual findings, but rejected the legal conclusion that there had not been adverse employment action. The ARB wrote:

    [U]nder Board precedent, "an employer who decides to interpret an employee's actions as a quit or resignation has in fact decided to discharge that employee." Minne , ARB No. 05-005, slip op. at 14.

* * *

    As demonstrated in Minne , it is the supervisor's behavior (in this case, Vordermeier's), rather than the employee's, which ultimately ended the employment relationship. After Vordermeier told Klosterman to drive or go home, and Klosterman opted to go home, Vordermeier chose to interpret Klosterman's refusal to drive by considering him to have quit, rather than by addressing the issue that he raised. Under these circumstances, Vordermeier effectively discharged Klosterman.

USDOL/OALJ Reporter at 9-10 (some citations omitted). The ARB concluded that the owner terminated the Complainant's employment (i.e., "discharged" him) when he told him to drive or go home and then immediately considered that the Complainant had voluntarily quit.

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Summary :

TIMELINESS OF REQUEST FOR ARB REVIEW; SLOW DELIVERY OF ALJ DECISION; FAILURE TO REQUEST ENLARGEMENT OF TIME FROM ARB SHOWS A LACK OF DUE DILIGENCE

In Romero v. The Coca Cola Co. , ARB No. 10-095, ALJ Nos. 2010-SOX-21 (ARB Sept. 30, 2010), the Complainant's attorney did not receive the ALJ's decision until April 19, 2010. The petition for ARB review was due on April 21, 2010, but not filed until April 29, 2010. The ARB found that extraordinary circumstances justifying equitable tolling was not warranted where the attorney did not contact the ARB to request an enlargement of time to file the petition, and therefore failed to establish due diligence. Lack of prejudice to the Respondent was not an independent ground for tolling of the limitations period.

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Summary :

[Nuclear and Environmental Whistleblower Digest VII C 2]
SUMMARY DECISION; ALJ'S DISMISSAL BASED ON INFERENCE OF ADMISSIONS VACATED WHERE ALJ WAS UNAWARE THAT COMPLAINANT HAD IN FACT SERVED RESPONDENT WITH RESPONSES

In Williams v. Dallas Independent School District , ARB No. 08-103, ALJ No. 2008-TSC-1 (ARB Sept. 30, 2010), the Respondent served a request for admissions on the Complainant. Later, the Respondent filed a motion for summary decision arguing that because the Complainant failed to answer its requests for admission, it should be deemed admitted that the Respondent did not retaliate against the Complainant for protected activity. The ALJ issued an order to show cause requiring the Complainant to provide justification for why the Respondent's motion for summary decision should not be granted. The Complainant requested a continuance and additional time to answer the requests for admission and argued that the Respondent had not responded to his requests for production of evidence. The Complainant also served his responses to the requests for admission on the Respondent, but did not file them with the ALJ. The Complainant then filed an affidavit in response to the order to show cause and requested a continuance to complete discovery. The ALJ issued a order giving the parties additional time to complete discovery and all responses in support or defense of the pending motion for summary decision. After this deadline had expired, and not knowing that the Complainant had responded to the requests for admission, the ALJ issued a decision granting summary decision, deeming all of the Respondent's requested admissions to be admitted.

On appeal, the ARB vacated the ALJ's decision and remanded for the ALJ's reconsideration of the motion for summary decision in light of the fact that, unbeknownst to the ALJ, the Complainant had actually responded to the requests for admission prior to the ALJ's decision. The ARB noted that the regulation at 29 C.F.R. § 18.20(g) generally does not require parties to file their responses to admissions requests with the ALJ unless expressly ordered to do so, and thus the Complainant had acted in compliance with the ALJ's directive to make the responses. The ARB noted that no party alerted the ALJ through motion or otherwise before the appeal was filed that the Complainant had, in fact, served his responses.

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Summary :

TIMELINESS OF COMPLAINT; RESIGNATION DATE TRIGGERS LIMITATIONS PERIOD IN CONSTRUCTIVE DISCHARGE CASE; EVENTS SUBSEQUENT TO RESIGNATION FOUND NOT TO EXTEND LIMITATIONS PERIOD UNDER THE FACTS OF THE CASE

In Peters v. American Eagle Airlines, Inc. , ARB No. 08-126, ALJ No. 2007-AIR-14 (ARB Sept. 28, 2010), the ARB agreed with the ALJ that the trigger date for the AIR21 limitations period was the date the Complainant resigned (i.e., was constructively discharged), and that because he did not file his complaint with OSHA until after the 90 day limitations period, the complaint was not timely. The Complainant argued that the Respondent's attempts, after the resignation, to collect wages improperly paid during his unpaid leave should be considered adverse actions within the limitations period. The ARB, however, found that the Complainant was already on notice that Respondent would attempt to collect on its repayment demand prior to the resignation, and under these facts the 90-day limitations period would not be extended. Similarly, the ARB found that subsequent actions such as the Complainant changing the effective date of his resignation to the Respondent's later "processing" of the resignation could not extend the limitations period on the facts of this case. The ARB wrote that "[w]hether or not Eagle considered him to be an employee beyond the date of his resignation or when Eagle accepted the resignation is immaterial. As the ARB held in Overall v. Tennessee Valley Auth. , ARB Nos. 98-111, 98-128, ALJ No. 1997-ERA-053, slip op. at 34 (ARB Apr. 30, 2001), the date a complainant discovers that he has been injured is the date the claim accrues. Peters was well aware of the loss of his position because he stated that he was resigning under duress on both March 7 and March 10." USDOL/OALJ Reporter at 5.

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Summary :

Complainant decided to file in federal court.

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Summary :

The ARB affirmed the ALJ's finding that although temporal proximity between the Complainant's protected activity and his discharge raised an inference of causation, the inference was insufficient to meet the Complainant' burden to prove by a preponderance of the evidence that the Respondent put him on probation and then fired him because of his protected activity.

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Summary :

[STAA Digest VII B 2]
INDIVIDUAL LIABILITY; PRESIDENT AND SOLE SHAREHOLDER; SPOUSE OF PRESIDENT AND SOLE SHAREHOLDER

In Smith v. Lake City Enterprises, Inc. , ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010), the ARB affirmed the ALJ's determination that the president and sole shareholder ("the owner") of the Respondent was individually liable for violating the STAA. On appeal, the Respondent argued that its owner's actions were within the course and scope of her employment, and therefore she was not individually liable for the debts or actions of the Respondent as a separate legal entity. The ARB, however, found that the STAA's express language covers a person who is an employer, that there was no question that the owner was the Complainant's employer, and that she was engaged in the commercial motor vehicle business as the president of the Respondent.

The ARB also affirmed the ALJ's finding that the Respondent's owner's spouse was not individually liable. On appeal the Complainant argued that the owner's spouse was a joint employer because he managed the Respondent's equipment, hired staff, conducted inventory, and fielded equipment complaints. The ARB wrote: "The crucial factor in determining whether an entity is a joint employer with another is whether the entity exercised control over the complainant's employment. ... Such control includes the ability to hire, transfer, promote, reprimand, or discharge the complainant, or to influence another employer to take such actions against a complainant. USDOL/OALJ Reporter at 8 (citations omitted). The ARB found that the record showed that while the owner's spouse advised his wife about her business, stored and maintained his truck at the Respondent's facility, and helped with equipment issues, he exercised no control over the Complainant's employment and played no role in hiring or firing him.

[STAA Digest IX B 2 b xv]
BACK PAY; WHERE RESPONDENT IS OUT OF BUSINESS, AWARD RUNS TO DATE OF DISSOLUTION, AND A FRONT PAY AWARD MUST BE CONSIDERED

In Smith v. Lake City Enterprises, Inc. , ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010), the ALJ erred in calculating back pay to the date of the hearing. The ARB stated: "Ordinarily, back pay runs from the date of the discriminatory discharge until the date the employer reinstates the complainant or the date on which the complainant receives an unconditional, bona fide offer of reinstatement." USDOL/OALJ Reporter at 10 (citation omitted). In the instant case, reinstatement was impossible because the Respondent was out of business. The ALJ had been unaware that the week before he issued his decision the Respondent had been dissolved. The ARB thus remanded for the ALJ to recalculate back pay to the date of the dissolution and to consider an award of front pay.

[STAA Digest IX D 4]
PUNITIVE DAMAGES; PRE-AMENDMENT COMPLAINT

In Smith v. Lake City Enterprises, Inc. , ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010), the ALJ denied an award of punitive damages because the complaint had been filed before the effective date of the 2007 amendments to the STAA that permit such damages. On appeal, the ARB agreed with the 8th Circuit's decision in Elbert v. True Value Co. , 550 F.3d 690, 693 (8th Cir. 2008), that the STAA amendments that provide, among other things, for the award of punitive damages, do not apply retroactively to pending claims.

[STAA Digest II L]
BANKRUPTCY; AUTOMATIC STAY PROVISION DOES NOT APPLY WHERE WHISTLEBLOWER COMPLAINT COMMENCED BEFORE OWNER'S PERSONAL BANKRUPTCY FILED

In Smith v. Lake City Enterprises, Inc. , ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010), it became evident on appeal that the Respondent was no longer in business and that its owner and her spouse were in Chapter 13 bankruptcy proceedings. The ARB thus remanded for the ALJ to consider reopening the record. The ARB held that the Bankruptcy Code's automatic stay provision did not apply because the Complainant had commenced the STAA proceeding before the owner and her husband had filed for bankruptcy. Earlier in the decision, the ARB had found that the owner was personally liable for damages under the STAA.

[Editor's Note Jan. 18, 2011: The original casenote for STAA Digest II L on Smith v. Lake City Enterprises, Inc. , ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010), mis-stated the ARB's ruling. The following casenote is substituted.]

[STAA Digest II L]
BANKRUPTCY; AUTOMATIC STAY PROVISION DOES NOT APPLY WHERE WHISTLEBLOWER COMPLAINT COULD NOT AND DID NOT COMMENCE BEFORE BANKRUPTCY ACTION WAS FILED

In Smith v. Lake City Enterprises, Inc. , ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010), it became evident on appeal that the Respondent was no longer in business and that its owner and her spouse were in Chapter 13 bankruptcy proceedings. The ARB thus remanded for the ALJ to consider reopening the record. The ARB wrote:

While the Morgans were in bankruptcy, Smith was fired and filed his complaint on November 15, 2005. Smith could not have filed his complaint until after Crystle Morgan fired him and thus could not have commenced the STAA proceeding before she and her husband had filed for bankruptcy in April 2005. Therefore, the automatic stay does not apply. See Williams v. United Airlines, Inc. , ARB No. 08-063, ALJ No. 2008-AIR-003, slip op. at 4 (ARB Sept. 21, 2009) (the Bankruptcy Code automatically stays proceedings concerning claims arising before the bankruptcy is filed, but does not protect debtors from claims arising after the bankruptcy filing).

USDOL/OALJ Reporter at 12-13. Thus, the bankruptcy stay did not apply because the Complainant could not and did not commence the proceedings before the bankruptcy action was filed.

[STAA Digest IX C]
ATTORNEY'S FEES; TRAVEL TIME IS COMPENSABLE, BUT AT A LOWER RATE

In Smith v. Lake City Enterprises, Inc. , ARB Nos. 08-091 and 09-033, ALJ No. 2006-STA-32 (ARB Sept. 24, 2010), the ARB found that the ALJ erred in granting attorney's fees at the Complainant's attorney's full approved rate. Rather, the ARB stated that although travel time is generally compensable, it is often approved at a reduced hourly rate. Based on prior precedent, the ARB only approved half the hourly rate.

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Summary :

Withdrawal of appeal.

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Summary :

[STAA Digest VI B 4]
ADVERSE EMPLOYMENT ACTION; ALLEGED FORGERY OF VEHICLE INSPECTION REPORTS BY THE RESPONDENT FOUND NOT TO CONSTITUTE AN ACTION RELATING TO PAY, TERMS OR PRIVILEGES OF EMPLOYMENT

In Salata v. City Concrete, LLC , ARB Nos. 08-101, 09-104, ALJ Nos. 2008-STA-12 and 41 (ARB Sept. 23, 2010), the Complainant averred in a second STAA complaint that the alleged forgery of vehicle inspection reports that were in evidence in an earlier STAA claim constituted a new adverse action against him. The ARB agreed with the ALJ that, even if there had been a forgery, and OSHA and the ALJ in the first claim potentially relied on false evidence, such a circumstance does not constitute an adverse employment action.

The ARB found that even if the reports were changed after the Complainant turned them in, it had no effect on the outcome of the first claim because the ALJ in that case found that turning in the reports was itself protected activity. The ARB found even assuming the reports were changed, it would not constitute an action relating to pay, terms, or privileges of employment. 49 U.S.C.A. § 31105(a)(1). The ARB also found that the alleged forgery was an evidentiary issue that was adequately raised and litigated in the first case.

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Summary :

The ARB affirmed the ALJ's findings that there was sufficient evidence of a temporal relationship between the Complainant's protected activity and his suspension and discharge a month later to warrant an inference of motivation, but because the suspension was based on the Complainant's refusal to submit his logbooks, and the firing was based on the Complainant refusal of a dispatch for reasons unrelated to any protected activity, the Complainant failed to meet his burden to prove the required relationship between his protected activity and his suspension and discharge.

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Summary :

SUMMARY DECISION; ALJ'S OBLIGATION TO NOTIFY PRO SE LITIGANT OF REQUIREMENTS FOR RESPONDING TO MOTION FOR SUMMARY DECISION

In Motarjemi v. Metropolitan Council Metro Transit Division , ARB No. 08-135, 2008-NTS-2 (ARB Sept. 17, 2010), the ALJ issued a decision granting the Respondent's motion for summary decision because the Complainant had not responded to the motion. The ARB found that this was error:

    In Hooker v. Washington Savannah River Co. , [ARB No. 03-036, ALJ No. 2001-ERA-016 (ARB Aug. 26, 2004)] the ARB adopted federal precedent requiring a judge to give a pro se complainant notice of the requirements for opposing a motion for summary judgment, and the right to file pleadings, affidavits, or other evidence in response to the motion. We held that the ALJ in that case erred in granting summary judgment on Hooker's constructive discharge and blacklisting claims because he failed to inform Hooker of "his right to file affidavits or �other responsive materials' and did not warn him that failing to respond could mean that his case would be over."

    In this case, the record does not indicate that the ALJ informed Motarjemi, prior to issuance of the R. D. & O, of his right to oppose the Motion. Instead, the ALJ dismissed Motarjemi's complaint without informing him of the consequences for failing to respond to the Motion. This constitutes prejudicial error by the ALJ.

    We noted in Hooker that, when being notified of the requirements for responding to a motion for summary decision, a pro se litigant is entitled to "a form of notice sufficiently understandable to one in appellant's circumstances fairly to apprise him of what is required." Accordingly, we direct the ALJ to provide Motarjemi with a notice containing: (1) the text of the rule governing summary decisions before ALJs (i.e., 29 C.F.R. § 18.40), and (2) a short and plain statement that factual assertions in Metro Transit's affidavits will be taken as true unless he contradicts Metro Transit with counter-affidavits or other documentary evidence.

    Motarjemi must be given an opportunity to respond to the Motion so that he may, as described above, set forth specific facts showing that there is a genuine issue of fact for a hearing.

USDOL/OALJ Reporter at 4 (footnotes omitted).

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Summary :

Order awarding attorney fees for work before the ARB.

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Summary :

Approval of settlement.