USDOL/OALJ Reporter: ARB Decision Caselist - September 2013

THE PROTECTION AFFORDED BY FRSA SECTION 20109(C)(2) IS NOT LIMITED IN SCOPE TO ON-DUTY INJURIES; APPLICATION OF THE REGULATION DOES NOT INTERFERE WITH EMPLOYER�S ABILITY TO DISCIPLINE EMPLOYEES FOR EXCESSIVE ABSENTEEISM

In Bala v. Port Authority Trans-Hudson Corp. , ARB No. 12-048, ALJ No. 2010-FRS-26 (ARB Sept. 27, 2013), the Complainant was suspended for three days due to his absence from work under doctor's orders due to the Complainant's re-injury of his back while lifting boxes at home. The Complainant had previously been ordered out of work following a back injury suffered when attempting to lift railroad equipment. The ALJ found that the Respondent violated the FRSA, 49 U.S.C. § 20109(c)(2). The ALJ wrote that Section 20109(c)(2) protects employees from being disciplined "for following orders or a treatment plan of a treating physician" that arise "out of on-duty and off-duty injuries." On appeal, the Respondent challenged the scope of coverage of Section 20109(c), arguing that the use of the term "course of employment" in Section 20109(c)(1) applies as a prerequisite for employees to be afforded protection from unlawful "discipline" under subsection (c)(2), even though the term is not set out in that subsection. The ARB rejected the Respondent's contention, applying the well-established principle that "where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." USDOL/OALJ Reporter at 6, quoting Russello v. United States , 464 U.S. 16, 23 (1983) (internal quotations and citation omitted). The ARB stated that "Had Congress intended to limit railroad employee protection from discipline for following doctor's orders only in circumstances stemming from injuries that occurred during the �course of employment� or on-duty injuries, �it presumably would have done so expressly as it did in the immediately [preceding] subsection [(c)(1)].�" USDOL/OALJ Reporter at 7, quoting Russello , 464 U.S. at 23. The ARB found further support for its interpretation in the legislative history to the FRSA -- specifically the Rail Safety Improvement Act of 2008, Pub. L. No. 110-432, 122 Stat. 4848, Sec. 419. The ARB rejected the Respondent's contentions that the provision's title "Prompt medical attention" limits the scope of the statute to on-duty injuries, and that limitations in similar state statutes on which Section 20109(c) was modeled should apply to the federal statute. The ARB also recited the legislative history's reflection of Congress's broad concern over safety in the railroad industry and protection of injured railroad workers.

The Respondent also argued that application of Subsection (c)(2) to injuries incurred while the worker is off-duty would interfere with a railroad company's ability to discipline employees for excessive absenteeism. The ARB responded that "nothing in Section 20109 precludes an employer from disciplining an employee for excessive absences. The only limitation set out in (c)(2) is that an employee cannot be disciplined because he/she is complying with the orders or treatment plan of a treating physician." USDOL/OALJ Reporter at 13-14 (citation omitted). The ARB also wrote in footnote:

   For several reasons, PATH's argument that interpreting Section 20109(c)(2) to protect treatment for off-duty illness or injury will preclude a railroad from disciplining employees for excessive absences is also meritless. First, an employee may be disciplined when absences are not associated with a medical treatment plan. Second, an employee's claim to be following a physician's treatment plan must be in good faith to be protected under the statute. FRSA does not preclude an employer from ascertaining whether an absence is legitimate. See, e.g., Johnson v. Roadway Express , ARB No. 99-111, ALJ No. 1999-STA-005, slip op. at 9 (ARB Mar. 29, 2000) ("Moreover, where a driver's claim of illness is not legitimate, a refusal to drive is not protected activity."). Finally, an employer may avoid liability if it can show by clear and convincing evidence that it would have taken the same action in the absence of protected activity.

USDOL/OALJ Reporter at 14 n.9.

The ARB affirmed the ALJ's decision, holding that that substantial evidence supported the ALJ's findings that the Complainant's reporting and adherence to his physician's medical orders were protected under FRSA, that his protected activity contributed to his discipline, and that the Respondent did not present clear and convincing evidence that the Complainant would have suffered the same discipline absent the activity.

RETROACTIVE APPLICATION OF FRSA SECTION 20109(c)(2) IS NOT IMPLICATED WHERE, ALTHOUGH A DISCIPLINARY CHARGE LETTER WAS ISSUED PRIOR TO THE ENACTMENT OF SECTION 20109(c)(2), THE COMPLAINANT DID NOT EXPERENCE AN ADVERSE ACTION UNTIL HIS LATER SUSPENSION FOLLOWING A DISCIPLINARY HEARING

In Bala v. Port Authority Trans-Hudson Corp. , ARB No. 12-048, ALJ No. 2010-FRS-26 (ARB Sept. 27, 2013), the Respondent argued that a July 14, 2008 Disciplinary Charge Letter which charged the Complainant with violation of the Respondent's attendance policy, preceded the date of enactment of FRSA Section 20109(c)(2), October 16, 2008, and thus the statute could not be applied retroactively. The ARB held that "This is not a case involving retroactive application of a statute. While the charging letter informing [the Complainant] of disciplinary proceedings was dated July 2008, [the Complainant] did not experience an adverse action until January 2009, when [the Respondent] suspended him immediately following a disciplinary hearing. 49 U.S.C.A. § 20109(a); DeFrancesco v. Union R.R. Co. , ARB No. 10-114, ALJ No. 2009-FRS-009 (ARB Feb. 29, 2012) (suspension constitutes an adverse action under FRSA). Since [the Complainant] was not disciplined until three months after the statute was enacted, there is no issue in this case pertaining to retroactivity." USDOL/OALJ Reporter at 16.

ARB REVIEW OF SETTLEMENT AGREEMENT; ARB DENIES PARTIES' MOTION FOR VACATING OF ALJ'S DECISION AND REMOVAL OF THAT DECISION FROM ANY DOL WEBSITE OR DATABASE AS PREREQUISITE FOR THE SETTLEMENT

In Vannoy v. Celanese Corp. , ARB No. 09-118, ALJ No. 2008-SOX-64 (ARB Sept. 27, 2013), the parties submitted a settlement agreement to the ARB for review and approval. The parties filed a motion requesting that the ARB to vacate the ALJ's Decision and Order as a prerequisite for the settlement, including removal of the ALJ's decision �from any website or database affiliated with the United State Department of Labor or record of published opinions.� The ARB approved the settlement but denied the motion to vacate the ALJ's decision. The ARB stated: "The ALJ's order is precedent, however, it is not our practice to vacate an underlying ALJ decision in the context of reviewing a settlement agreement pursuant to 29 C.F.R. § 1980.111(d)(2)." USDOL/OALJ Reporter at 2.

MOTION TO REOPEN BASED ON FAMILY MEMBER�S FAILURE TO RECOGNIZE SIGNIFICANCE OF ARB�S CERTIFIED MAIL AND SLIGHT MISSPELLING OF COMPLAINANT�S NAME; MOTION DENIED WHERE ORDER WAS SENT TO ADDRESS OF RECORD AND COMPLAINANT FAILED TO SHOW DUE DILIGENCE IN FILING MOTION TO REOPEN, HAVING WAITED SIX MONTHS

In Blake v. Mast Drug Co., Inc. , ARB No. 13-020, ALJ No. 2012-ACA-2 (ARB Sept. 25, 2013), because the Department of Labor had not yet issued regulations governing the procedure for adjudication of ACA whistleblower complaints, the ALJ forwarded his decision to the ARB and suggested that a party seeking to challenge the decision file a petition for review with the ARB. The ARB issued an order by certified mail setting a deadline for the filing of a petition, and after receiving no petitions, issued an order closing the case. The Complainant filed a motion for reconsideration on the ground that the address used by the ARB to issue its order was an address at which his son was living. The Complainant stated that because the letter was addressed to "Roy" rather than "Rory" Blake, his son did not pay attention to the letter because he assumed that if the person sending it had not taken care to spell the Complainant's name correctly, it must not be important. The ARB denied reconsideration because the address used had been the only address of record for the Complainant, the Complainant did not explain why he had not filed a petition as suggested by the ALJ, the misspelling of the Complainant's name was not a sufficient basis for reopening the final decision, and the Complainant failed to demonstrate due diligence because he waited six months after the order closing the case to recontact the ARB to request reopening of the case (the Complainant having filed a petition for review a few days after the notice of case closing). One member of the Boarded concurred with denial of reconsideration only on the due diligence ground.

WAGE AND HOUR DIVISION ADMINISTRATOR HAS THE DISCRETION TO USE "SUPER GROUPS" OF COUNTIES TO RENDER A DBA WAGE DETERMINATION WHERE NO DATA, OR INSUFFICIENT DATA, ARE AVAILABLE FOR THE CLASSIFICATIONS IN THE COUNTIES FOR WHICH THE DBA WAGE RATE IS BEING DETERMINED

In Coalition for Chesapeake Housing Development , ARB No. 12-010 (ARB Sept. 25, 2013), the Petitioner made two challenges to the 2010 Davis-Bacon Act wage determination for crane operators, plumbers, and truck drivers in Newport News and Chesapeake Counties.. The Petitioner first challenged the use of "super groups" of counties to determine the prevailing wage rate. The Administrator had received no data from Newport News or Chesapeake Counties for the classifications of crane operator and plumber and, therefore, needed to look elsewhere to set the prevailing wage. Data for the classification of truck driver was also insufficient. The super group the Wage and Hour Division (WHD) used consisted of all metropolitan counties in eastern Virginia including those from the DC Metropolitan Statistical Area (MSA), the Richmond MSA, and the Norfolk-Virginia MSA. WHD used data from Fairfax and Alexandria counties (within the DC MSA) to derive certain of the wage rates contained in the Newport News and Chesapeake wage determinations. The Petitioner challenged the wage determinations because some classifications were based on projects located in Alexandria and Fairfax, which are not surrounding counties of the local project counties. The ARB found that the wage rates in question were valid because: "(1) there was insufficient county data; (2) they reflect the statewide data as expressly permitted by the regulations; and (3) the regulations implicitly permit the Administrator to use super groups of counties entirely within the state." USDOL/OALJ Reporter at 2. The majority decision emphasized that "the Petitioner had failed to present sufficient evidence that the wage rates before us are not prevailing to overcome the broad discretion we must accord the Administrator's wage determinations." USDOL/OALJ Reporter at 12.

One member of the ARB dissented arguing that no prior legal authority existed for use by the WHD of wage data gathered from super groups of counties in making wage determinations under the DBA, and that "the majority's unprecedented endorsement of the use of 'super groups� could easily result in unanticipated and potentially undesirable consequences in the future for employees and employers alike�." USDOL/OALJ Reporter at 13.

The Petitioner also challenged the wage determinations on the ground that the data for the 2010 wage survey was too old. The ARB found that "the statutes and regulations do not establish an expiration date for published prevailing wages. Furthermore, we find that the Petitioner failed to present the kind of evidence that compels us to order a new wage determination." USDOL/OALJ Reporter at 2.

JUDICIAL ESTOPPEL; COMPLAINANT�S FAILURE TO DISCLOSE FRSA CLAIM TO BANKRUPTCY COURT; MOTIVE TO MISLEAD BANKRUPTCY COURT CANNOT BE INFERRED FROM MERE FAILURE TO DISCLOSE; INTENT IS A QUESTION OF FACT ORDINARILY PRECLUDING GRANT OF SUMMARY DECISION

In Nelson v. Norfolk Southern Railway Co. , ARB No. 12-045, ALJ No. 2011-FRS-35 (ARB Sept. 25, 2013), the ALJ dismissed the Complainant's FRSA whistleblower complaint on summary decision on the grounds that the Complainant was judicially estopped from pursuing his FRSA claim because he had not disclosed it to a bankruptcy court adjudicating the Complainant's Chapter 13 bankruptcy filing. The ALJ cited the ARB's decision in White v. Gresh Transp., Inc. , ARB No. 07-035, ALJ No. 2006-STA-048 (ARB Nov. 20, 2008). The ARB found that it was correct to apply a de novo standard of review, rather than an abuse of discretion standard as urged by one concurring member of the Board, on the question of a grant of summary decision on judicial estoppel grounds., The Complainant did not dispute that he was aware of his FRSA claim; that it arose subsequent to the filing of his bankruptcy petition; that he was obligated to disclose it to the bankruptcy court; and that he failed to do so. The ARB, looking to Fourth Circuit caselaw, thus found that the determinative factor in whether to apply judicial estoppel was whether the Complainant's failure to disclose his FRSA claim was motivated by an attempt to gain some advantage before the bankruptcy court. The ALJ had focused on a filing made by the Complainant before the bankruptcy court to hold that the Complainant knew he was obligated to disclose the claim and had a theoretical motive for concealment. The ARB, however, viewing the evidence in the light most favorable to the Complainant, found that the filing relied upon by the ALJ merely indicated that the Complainant was aware of an ongoing duty to disclose any claims arising prior to the filing of the bankruptcy petition, which supported the Complainant's contention that at a minimum, an issue of material fact exists as to whether he knew that he was required to disclose his FRSA claim. The ARB cited 3rd Circuit caselaw rejecting a theoretical motivation construct as applied by the ALJ. The ARB stated that the ALJ's conclusion regarding the Complainant's motive was in conflict with well-established caselaw holding that intent is a question of fact ordinarily precluding a grant of summary judgment, and that summary judgment is particularly unsuitable for divining a complainant's motive when determining whether to apply judicial estoppel. The ARB remanded for further proceedings.

The concurring member would have applied an abuse of discretion standard of review, and found that the ALJ abused that discretion because, as the majority found, "the requisite intent for judicial estoppel should not be inferred from the mere fact of nondisclosure."

OFCCP WITHDRAWS APPEAL OF ALJ'S DETERMINATION THAT "NON-ASIAN" IS NOT A "RACE" OR "ETHNIC GROUP"

In OFCCP v. VF Jeanswear Limited Partnership , ARB No. 13-089, ALJ No. 2011-OFC-6 (ARB Sept. 25, 2013), the ARB closed the case before it upon OFCCP's filing of notice that it would not be filing exceptions to the ALJ's recommended decision and order. OFCCP had brought a complaint against the Respondent on the ground that it had allegedly discriminated against non-Asian job applicants. The ALJ granted summary decision against OFCCP on the ground that "non-Asian" was not a "race" or "ethnic group" either by regulatory definition or common parlance. See 41 C.F.R. 60-33 A and 60-34 B. OFCCP v. VF Jeanswear Limited Partnership , 2011-OFC-6 (ALJ Aug. 5, 2013).

[Nuclear and Environmental Whistleblower Digest XVIII C 8]
TIMELINESS OF APPELLATE BRIEF; DISMISSAL OF APPEAL WHERE COMPLAINANT FAILED TO DEMONSTRATE DUE DILIGENCE

In Castro v. Southern California Edison. , ARB No. 13-072, ALJ No. 2012-ERA-6 (ARB Sept. 12, 2013), the ARB dismissed the Complainant's appeal for failure to file a timely appellate brief where the Complainant failed to demonstrate due diligence in regard to the filing of the brief. The ARB stated that even if it adopted the lesser sanction of construing the Complainant's petition for review as a brief, dismissal would still be required because the Complainant only argued in the petition that the ALJ wrongly decided his complaint and did identify any specific errors of fact or law to support that assertion.

[STAA Digest IX C]
ATTORNEY�S FEES AND LITIGATION COSTS; ALJ DECIDES REQUEST FOR FEES AND COSTS PETITION FOR WORK BEFORE OALJ � SUBJECT TO ARB REVIEW; ARB DECIDES REQUEST FOR FEES AND COSTS PETITION FOR WORK BEFORE THE ARB; ALJ PROPERLY CONSIDERS ONLY THOSE SERVICES RENDERED BEFORE HIM; ARB HAS, IN CERTAIN CIRCUMSTANCES, AUTHORITY TO AWARD LEGAL FEES AND COSTS OF LITIGATION IN PROCEEDINGS BEFORE A FEDERAL COURT OF APPEALS OR A BANKRUPTCY COURT

In Smith v. Lake City Enterprises, Inc. . , ARB No. 12-112, -113, ALJ No. 2006-STA-32 (ARB Sept. 12, 2013), the ARB explained which adjudicatory entity decides attorney fee petitions in STAA cases:

A request for the award of attorney's fees and litigation costs incurred before an ALJ is within the jurisdiction of the ALJ to decide initially, subject to ARB review. [29 C.F.R. § 1978.109(d)(1).] A request for the award of attorney's fees and litigation costs incurred before the ARB is within the jurisdiction of the ARB to decide. [29 C.F.R. § 1978.110(d).]

USDOL/OALJ Reporter at 4 (footnotes omitted). On appeal, the Complainant's attorney argued that the ALJ erred in discounting the hours of service he rendered before the U.S. Court of Appeals for the Sixth Circuit and before the ARB. The ARB held that the ALJ "appropriately concluded that he could not award fees for services performed before another tribunal�." USDOL/OALJ Reporter at 6. The ARB stated:

In considering whether the fees requested were reasonably incurred in the successful prosecution of a complaint, the ARB has held that services peripheral to the litigation are not compensable. For example, an attorney's time spent on accounting and tax issues related to a complainant's damages is not compensable because the services were not integral to litigation of the case. Further, an ALJ has no authority to award attorney's fees for services before a federal court of appeals or a bankruptcy court. The ALJ properly considered only those services rendered before him.

USDOL/OALJ Reporter at 6 (footnotes omitted). The ARB noted, however, that it "retains in certain circumstances authority to award legal fees and costs of litigation in proceedings before a federal court of appeals or a bankruptcy court, provided the representation involved is integral to the underlying whistleblower complaint." USDOL/OALJ Reporter at n.30, citing Pierce v. U.S. Enrichment Corp. , ARB Nos. 06-055, -058, 119; slip op. at 3 (ARB Feb. 27, 2009).

[STAA Digest IX C]
ATTORNEY FEE AWARD BY ALJ; ARB EMPLOYS ABUSE OF DISCRETION STANDARD OF REVIEW

In Smith v. Lake City Enterprises, Inc. . , ARB No. 12-112, -113, ALJ No. 2006-STA-32 (ARB Sept. 12, 2013), the ARB stated that it "reviews an ALJ's award of attorney's fees under an abuse-of-discretion standard, which includes determining whether the ALJ's factual findings are by the substantial evidence of record, and considering de novo whether the ALJ's legal conclusions are in accordance with applicable law." USDOL/OALJ Reporter at 2-3 (footnotes omitted). The ARB elaborated:

Effectively, the ARB has embraced the abuse-of-discretion standard applied by federal appellate courts in the review of a district court's attorney fee award. "[R]eview of the district court's award is sharply circumscribed; we have recognized that because a district court has close and intimate knowledge of the efforts expended and the value of the services rendered, the fee award must not be overturned unless it is clearly wrong." Consideration is given to "whether the decision-maker failed to consider a relevant factor, whether he [or she] relied on an improper factor, and whether the reasons given reasonably support the conclusion." Additionally, abuse of discretion will be held to occur if the tribunal "did not apply the correct legal standard . . . or if it misapprehended the underlying substantive law."

USDOL/OALJ Reporter at 3 (footnotes omitted).

[STAA Digest IX C]
ATTORNEYS FEES ARE BASED ON HOURLY RATE FOR PLACE WHERE THE CASE WAS FILED

In Smith v. Lake City Enterprises, Inc. . , ARB No. 12-112, -113, ALJ No. 2006-STA-32 (ARB Sept. 12, 2013), the Complainant's attorney argued that he was entitled to an hourly rate for attorneys in the Washington, DC metropolitan area, where he had relocated and currently resided, as opposed to the hourly rate for the place where the case was filed � Cincinnati, Ohio. The ARB rejected this argument holding that "The ALJ properly concluded that the relevant market community for determining a reasonable hourly billing rate for the legal work performed before the ALJ is the place where the case was filed, which in this case was Cincinnati, Ohio. The ALJ reasonably determined that [the Complainant's attorney's] relocation to an area where hourly rates for legal services are larger (D.C.) does not require an increase in the hourly rate larger than that in the community where the complaint was filed (Ohio)." USDOL/OALJ Reporter at 4 (footnote omitted).

[STAA Digest IX C]
ATTORNEY�S FEES; INCREASE AWARDED BASED ON DELAY BETWEEN ALJ�S DECISION ON FEES AND THE ARB�S FINAL DECISION

In Smith v. Lake City Enterprises, Inc. , ARB No. 12-112, -113, ALJ No. 2006-STA-32 (ARB Sept. 12, 2013), the ARB agreed with the Complainant's attorney's argument that because of the nearly year-long delay between the ALJ's decision awarding attorney's fees and the ARB's decision on appeal, the hourly rate awarded pursuant to the Complainant's fee petition should be increased. The ARB ruled that "in fairness and equity, and consistent with legal authority, we add a five percent increase to the ALJ's hourly rate of $325.00, raising that rate to $340.00 an hour." USDOL/OALJ Reporter at 7 (footnote omitted).

[STAA Digest IX A 8]
REINSTATEMENT TO FORMER POSITION; RECORD INDICATED THAT THE NEW POSITION WAS NEITHER DIFFERENT NOR A PROMOTION

In Seehusen v. Mayo Clinic. , ARB No. 12-047, ALJ No. 2011-STA-18 (ARB Sept. 11, 2013), the Respondent argued on appeal that it was not proper to order it to return the Complainant to a truck driver position because the regulation only permits reinstatement of an employee to his former position � not promotion to a position he never held. The ARB argued that the ALJ's reinstatement order would stand because the Respondent had not raised this argument before the ALJ. The ARB went on to state, however, that even if it was inclined to address the argument, it would affirm the ALJ's order of reinstatement under the facts of the case, where the record indicated that the Complainant had driven a truck for the Respondent for eight years and that the Respondent had conceded that a mail truck driving position for which the Complainant had been prohibited from applying for was neither different nor a promotion.