USDOL/OALJ Reporter: ARB Decision Caselist - September 2015

CLEAR AND CONVINCING STANDARD; “CLEAR” EVIDENCE REQUIRES AN UNAMBIGUOUS EXPLANATION FOR THE ADVERSE ACTION IN QUESTION; “CONVINCING” REQUIRES EVIDENCE DEMONSTRATING THAT A PROPOSED FACT IS HIGHLY PROBABLE; “CLEAR AND CONVINCING” REQUIRES THAT THE THING TO BE PROVIDED IS HIGHLY PROBABLE OR REASONABLY CERTAIN

In DeFrancesco v. Union Railroad Co. , ARB No. 13-057, ALJ No. 2009-FRS-9 (ARB Sept. 30, 2015), the ARB stated:

   As the ARB said in Speegle v. Stone & Webster Construction , the plain meaning of the clear-and-convincing phrase requires that the evidence must be “clear” as well as “convincing.” “Clear” evidence means the employer has presented an unambiguous explanation for the adverse action(s) in question. “Convincing” evidence has been defined as evidence demonstrating that a proposed fact is “highly probable.” Clear and convincing evidence denotes a conclusive demonstration, i.e., that the thing to be proved is highly probable or reasonably certain.

USDOL/OALJ Reporter at 7-8 (footnotes omitted).

CONTRIBUTING CAUSE/CLEAR AND CONVINCING EVIDENCE ANALYSIS IN CASES INVOLVING INJURY REPORTS AND RELATED INVESTIGATIONS; ARB REJECTS ARGUMENTS THAT ITS PRECEDENT ESTABLISHED A “BUT FOR” CAUSATION TEST AND NULLIFIED THE STATUTORY AFFIRMATIVE DEFENSE; RATHER, THE AFFIRMATIVE DEFENSE CAN BE ESTABLISHED BY “EXTRINSIC FACTORS”

In DeFrancesco v. Union Railroad Co. , ARB No. 13-057, ALJ No. 2009-FRS-9 (ARB Sept. 30, 2015), the Complainant alleged that his employer violated the FRSA when it suspended him for 15 days after he reported a workplace slip-and-fall injury. The Complainant’s supervisor had concluded that slippery conditions caused the fall and that no further investigation was necessary. Other company officials, however, concluded that the Complainant “failed to take short, deliberate steps at the time of the fall and that his injury history exhibited a pattern of unsafe behavior.” The Complainant accepted a 15 day suspension in lieu of risking more severe discipline if he sought a disciplinary hearing.

In an initial appeal, the ARB reversed the ALJ’s finding that the Complainant had not established contributing factor, the ARB holding that the evidence of record supported a finding of contributory factor as a matter of law. The ARB remanded for the ALJ to consider whether the Respondent could prove by clear and convincing evidence that it would have suspended Complainant even if he had not made the report. On remand, the ALJ found in favor of the Complainant.

ARB rejects contention that it created a “pure but-for” causation standard

Before the ARB on second appeal, the Respondent argued that inasmuch as it based its discipline on “information independently discovered during the ensuing investigation” and not the protected activity itself, the ARB had “erroneously adopted a ‘pure but-for standard’ whereby protected conduct is deemed a contributing factor whenever it is part of a chain of causally-related events leading to the adverse action.” USDOL/OALJ Reporter at 6, quoting Respondent’s brief. The ARB rejected this contention.

The ARB first stated that its prior remand ruling—that, as a matter of law, the Complainant had met his evidentiary burden of establishing that protected activity contributed to the suspension—was consistent with the ARB’s decision in Fordham v. Fannie Mae , ARB No. 12-061, ALJ No. 2010-SOX-51 (ARB Oct. 9, 2014), as reaffirmed and clarified en banc in Powers v. Union Pac. R.R. , ARB No. 13-034, ALJ No. 2010-FRS-030 (ARB Apr. 21, 2015).

The ARB then cited to its decision in Henderson v. Wheeling & Lake Erie RR , ARB No. 11-013, ALJ No. 2010-FRS-12 (ARB, Oct. 6, 2012):

   In Henderson v. Wheeling & Lake Erie RR , the ARB held that because the adverse action and the protected activity were inextricably intertwined (due to the fact that the investigation resulting in disciplinary action arose directly from Henderson’s injury report), his protected activity was a contributing factor in the adverse action against him, regardless of the employer’s asserted rationale for its action. Contrary to Union Railroad’s argument on appeal and the ALJ’s understanding of the remand decision the Board has not adopted a “pure but-for” causation standard. Rather, we have held, consistent with our precedent,22 that the protected activity was “a factor in,” as opposed to a mere fact “leading to,” a decision to investigate an employee’s injury for the purpose of deciding whether to bring disciplinary charges.

USDOL/OALJ Reporter at 6-7 (footnotes omitted). The ARB stated that “where a complainant’s evidence establishes that his injury report influenced the employer’s decision to investigate to determine whether to bring disciplinary charges, the complainant has met his burden of proving by circumstantial evidence that his protected activity was a contributing factor in the disciplinary action that resulted.” USDOL/OALJ Reporter at 7.

ARB rejects contention that its caselaw nullified statutory defense

The ARB then explained why it rejected the Respondent’s contention that that the Board’s interpretation of the contributing-factor requirement effectively nullifies its statutory affirmative defense under 49 U.S.C.A. § 20109(d)(2)(A)(i). The ARB indicated that in this discussion it would address the phrase from the clear and convincing standard: “would have taken the same unfavorable personnel action in the absence of [the protected activity].”

    - clear and convincing standard is meant to be tough

The ARB first observed that federal caselaw authority acknowledges that the clear-and-convincing standard is a purposely tough standard, and that the FRSA legislative history shows that Congress purposely incorporated that standard in the FRSA due to railroad employers’ history of harassment and retaliation against employees who report injuries.

    - An employer can show that it learned of sanctionable conduct through means other than protected reporting activity, and by other extrinsic factors

In DeFrancesco the ARB had remanded for the ALJ to consider whether the Respondent could prove by clear and convincing evidence that it would have suspended Complainant even if he had not made the report. On remand, the ALJ interpreted the ARB’s remand directive as eliminating any concern with the Respondent’s purported reasons for suspending the Complainant, and requiring that focus exclusively on whether the Respondent could prove by clear and convincing evidence that it “would have known about Complainant’s unsafe conduct without Complainant reporting the injury.” USDOL/OALJ at 9 (quoting ALJ’s decision). The ALJ found that because the Respondent could not show through clear and convincing evidence that it would otherwise have learned of the Complainant’s conduct, it could not meet its burden of proof. The ARB rejected the ALJ’s interpretation of ARB precedent.

The ARB stated:

   Certainly evidence that an employer would have learned of an employee’s misconduct through channels other than the employee’s protected activity is relevant to an employer’s affirmative defense. However, ARB precedent makes clear that learning of the employee’s conduct through other means is neither the sole nor necessarily a decisive basis by which an employer may establish its statutory affirmative defense. Also relevant is the existence of extrinsic factors that the employer can clearly and convincingly prove would independently lead to the employer’s decision to take the personnel action at issue.

USDOL/OALJ Reporter at 9 (footnote omitted).

    - Employer’s reason must be powerful and clear

The ARB again cited Henderson v. Wheeling & Lake Erie RR . In that case, the ARB held that analysis of the employer’s affirmative defense should carefully assess the employer’s asserted lawful reasons for its action, and that “[s]uch an assessment requires not only a determination of whether there exists a rational basis for the employer’s decision, such as the existence of employment rules or policies supporting the decision, but also a determination of whether the basis for the employer’s decision is ‘so powerful and clear that [the personnel action] would have occurred apart from the protected activity.’” USDOL/OALJ Reporter at 10 (quoting Henderson ). The ARB, however, noted that Henderson , stated that there “would be other factors weighing against the respondent meeting its statutory burden of proof such as evidence that the complainant suffered disparate treatment compared to other employees subject to the same company rules or policies cited in justification of the respondent’s action, or evidence that those rules and policies were otherwise selectively enforced against the complaint.” Id . (quoting Henderson ).

    - Right to report a workplace injury is a core protected right under the FRSA; to guard against pretext, careful examination must be made of whether there was a sufficient basis for the personnel action for reasons extrinsic to protected conduct

The ARB then indicated its agreement with OSHA’s amicus brief’s highlighting of OSHA’s “strong interest in assuring that interpretation of the FRSA whistleblower protection provision strikes the legally appropriate balance ‘between protecting employees from retaliation for reporting workplace injuries and enabling railroad employers to promote workplace safety through appropriate and effective enforcement of workplace safety rules’ and ‘between a worker’s right and responsibility to report a workplace injury and the employer’s ability to look into the circumstances surrounding a workplace injury with an eye toward creating a safer workplace.’” USDOL/OALJ Reporter at 10 (quoting amicus brief). The ARB continued:

   An employee’s right to report a workplace injury is, as the Solicitor noted [in OSHA’s amicus brief], “a core protected right” under the FRSA that benefits not only the employee but also the railroad employer and the public. We agree with the Solicitor that if employees do not feel free to report injuries or illnesses without fear of incurring discipline, dangerous conditions will go unreported resulting in putting the employer’s entire workforce as well as the general public potentially at risk. At the same time, the railroad employer must be able to maintain and enforce legitimate workplace safety rules in order to eliminate or reduce workplace hazards and prevent injuries from occurring in the first place. Thus, assuring that employers are able to investigate reports of workplace injury for potential safety hazards must necessarily be balanced against the manipulation of such investigations as pretext for retaliation against employees who report workplace injuries.

(USDOL/OALJ Reporter at 10-11). The ARB thus indicated its agreement with OSHA’s policy guidance that, to guard against pretext, there must be a careful examination of whether the employer had a sufficient basis for the personnel action for reasons extrinsic to the protected conduct. The ARB enumerated the minimum factors to consider:

• the employer’s monitoring of its work rules in the absence of injury;
• the employer’s imposition of equivalent discipline in the absence of injury;
• whether the work rule being enforced is routinely applied;
• whether the work rule being enforced is vague, thus being subject to manipulation;
• whether the work rule being enforced is a general safety rule applied by the employer in non-injury situations;
• whether the employer in conducting an investigation showed genuine concern in identifying safety problems, or used the investigation as a means to unearth a plausible basis to publish the complaint for the safety report.

The ARB summarized that the Respondent “was required to demonstrate through factors extrinsic to [the Complainant’s] protected activity that the discipline to which [the Complainant] was subjected was applied consistently, within clearly-established company policy, and in a non-disparate manner consistent with discipline taken against employees who committed the same or similar violations but were not injured.” USDOL/OALJ Reporter at 13-14. The ARB found that the Respondent had failed to do so in this case.

[Editor’s note: The two judge majority in DeFrancesco was Judge Brown and Judge Royce. Judge Igasaki concurred only in the result of the case without explanation or elaboration.]

DEBARMENT: REQUIRES DISREGARD OF OBLIGATIONS UNDER THE DAVIS BACON ACT INVOLVING SOME ELEMENT OF INTENT

DAVIS BACON ACT OBLIGATIONS REQUIRE CLASSIFICATION BY WORK ACTUALLY PERFORMED, NOT BY CLASSIFICATIONS BASED ON RESUMES, APPLICATIONS, LICENSURES, OR EXPERIENCE

In NCC Electrical Services, Inc. , ARB No. 13-097, ALJ No. 2012-DBA-6 (ARB Sept. 30, 2015), the ARB Majority (Igasaki and Corchado) upheld ALJ’s summary decision that Respondents falsely certified nine employees on project as part of a bona fide apprenticeship program, and misclassified employees as “apprentices” or “laborers” as opposed to electricians. Board Majority finds that while mere violations of obligations under the law do not constitute a “disregard,” for debarment, evidence must establish a level of “culpability beyond negligence.” “Some element of intent“ is required although intent need not arise to “willful attempts to avoid the DBA’s requirements.” (Italics in original) Admission of subcontractor that he created his own classifications based on the applications, resumes, licensure, and experience of employees rather than the work performed as required under the DBA; its certification of apprenticeship program without verification of certification; and its failure to review DBA requirements, reflects necessary “element of intent.” Three year debarment upheld.

Dissent (Brown) would have found that Napie’s testimony created a sufficient issue of material fact as to “intent.” Dissent asserts that prior cases do not support Majority’s conclusions as to intent. He would remand for an evidentiary hearing.

[Nuclear and Environmental Digest XIV A 2 d]
COVERED EMPLOYEE UNDER THE ERA; OWNER OF LABOR SERVICES CONTRACTOR WHO HIMSELF PERFORMED SERVICES UNDER THE CONTRACT; UNDER THE ERA, THE ARB’S ROBINSON TEST FOR DETERMINING COVERAGE AS AN “EMPLOYEE” IS BROADER THAN AND DISTINCT FROM THE SUPREME COURT’S DARDEN , COMMON-LAW, “EXERCISING SUBSTANTIAL CONTROL” TEST

In Nelson v. Energy Northwest , ARB No. 13-075, ALJ No. 2013-ERA-2 (ARB Sept. 30, 2015), the Complainant had formed a corporation to provide personnel to commercial nuclear facilities and Department of Energy sites, and had contracted with the Respondent to provide temporary skilled and unskilled labor. The Complainant was himself employed by the Respondent as a contractor through the Complainant’s corporation. OSHA found that the Complainant was not a covered employee under the ERA. The ALJ, however, found that the Complainant was a covered employee under the Nationwide Mutual Insurance Co. v. Darden , 503 U.S. 318, 322-23 (1992) factors, the Respondent having exercised substantial control over the Complainant. The ARB noted that it had ruled that “the term ‘employee’ within the meaning of the ERA is broader than and distinct from the Darden common-law test.” USDOL/OALJ Reporter at 7 (footnote omitted) (citing Robinson v. Triconex Corp. , ARB No. 10-013, ALJ No. 2006-ERA-31 (ARB Mar. 28, 2012)). The ARB, however, found that the ALJ’s findings regarding the nature of the Complainant’s work for the Respondent made him “a covered ‘employee’ under both of the standards discussed in Robinson —the analysis explained in Hill and Ottney [ v. TVA , 1987-ERA-23 and -24, slip op. at 5-6 (Sec’y May 24, 1989)], and the “control” test.” Id . (footnotes omitted). Specifically,

[t]he ALJ found that [the Respondent]’s “managers assigned the tasks that [the Complainant] worked on, controlled the number of hours he worked during the week, approved his vacation requests, determined his start and end time, oversaw the quality of his work, and determined if he could maintain his [unescorted access authorization].” The ALJ further found that [the Complainant] was under the direct supervision and control of [the Respondent], that he worked for [the Respondent] “for an extensive period of time and was assigned a wide range of responsibilities,” that the work he performed was part of [the Respondent]’s regular business, that he personally performed work for [the Respondent] at the power plant, and that he indirectly received compensation for each hour that he worked for [the Respondent]. These findings of fact establish that [the Complainant] qualifies for coverage as an “employee” under the ERA as a matter of law.

Id . (footnotes omitted).

[Nuclear and Environmental Digest XII D 2]
PROTECTED ACTIVITY; COMPLAINANT’S QUESTIONING DURING RESPONDENT’S PROBE INTO IMPROPER PER DIEM PAYMENTS; ARB PANEL MAJORITY DECLINES TO REACH “FRIENDSHIP” OR ASSOCIATION THEORY OF LIABILITY WHERE SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING THAT THE COMPLAINANT’S PARTICIPATION IN INTERVIEW WAS NOT IN FURTHERANCE OF THE ERA OR THE AEA

In Nelson v. Energy Northwest , ARB No. 13-075, ALJ No. 2013-ERA-2 (ARB Sept. 30, 2015), the Complainant’s company had contracted with the Respondent to provide temporary skilled and unskilled labor. He was questioned during an investigation by the Respondent about whether improper per diem invoices had been submitted on behalf of a contract employee. The ALJ ruled that the ERA does not extend to “friends of whistleblowers” who do not themselves engage in protected activity. The ARB noted that the Complainant had not cited any ARB precedent squarely addressing the question of whether the ERA protects workers from being fired where the termination is connected to a co-worker’s protected activity, and that, although the Secretary of Labor’s decisions had mentioned this theory of liability, the merits of the theory had not been resolved. The ARB, however, reserved ruling on the question for another day. The ARB found that the ALJ’s determination that the Complainant had not established by a preponderance of the evidence that his participation in the interview was in furtherance of the ERA or the Atomic Energy Act (AEA), was supported by substantial evidence.

One member of the ARB dissented, finding that the question of whether an employee who does not himself raise explicit safety or security concerns is entitled to protection under 42 U.S.C.A. § 5851 should have been addressed. This member would find that “[a]n employee who does not engage in protected activity may be covered where an unfavorable personnel action is taken against him or her because of his or her close association with someone who engaged in what was reasonably believed to be protected activity.” USDOL/OALJ Reporter at 12-13. This member would have also found that the Complainant engaged in protected activity because the investigation ostensibly had been undertaken to determine whether a personal history questionnaire (PHQ) submitted by the contract employee had been falsified in regard to residency, PHQs are required to obtain information necessary to grant access badges for security purposes, and therefore the security investigation was an “action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended.”

[Nuclear and Environmental Digest XI A 1]
CONTRIBUTING FACTOR; IN SPLIT DECISION, ARB FINDS THAT SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING THAT THE COMPLAINANT’S UNESCORTED ACCESS PRIVILEGE WAS REVOKED SOLELY BASED ON LACK OF HONESTY AND TRUSTHWORTHINESS; ARB MEMBERS’ CONTINUTING DISAGREEMENT ABOUT WHETHER POWERS REJECTED FORDHAM RULING THAT ALJ MUST NOT CONSIDER, AT CONTRIBUTING FACTOR STAGE, EVIDENCE THAT GOES TO RESPONDENT’S AFFIRMATIVE DEFENSE BURDEN

In Nelson v. Energy Northwest , ARB No. 13-075, ALJ No. 2013-ERA-2 (ARB Sept. 30, 2015), the Complainant’s company had contracted with the Respondent to provide temporary skilled and unskilled labor, and the Complainant himself also performed services under the contract. The Complainant was questioned during an investigation by the Respondent into whether improper per diem invoices had been submitted on behalf of a contract employee. The Complainant’s unescorted access authorization (“UAA”) was revoked as the result of the investigation. The Complainant filed an ERA whistleblower complaint with OSHA. The ALJ found overwhelming evidence that the Respondent withdrew the Complainant’s UAA privileges based solely on the Respondent’s belief that the Complainant had shown a lack of honesty and trustworthiness in regard to the per diem payments.

Substantial evidence supported ALJ’s finding that Respondent revoked UAA privileges based solely on reason unrelated to protected activity

The ARB affirmed the ALJ’s determination in a split decision. The majority (Judges Igasaki and Corchado) found the ALJ’s finding to be supported by substantial evidence, including in part the Complainant’s admission that he knew that the contract employee for whom the per diem invoice had been submitted had had been living locally fort months and that the contract employee intended to make Washington (the Respondent’s location) his permanent home. The majority found that hearing testimony showed that the Respondent’s policy restricted payment of per diem and travel costs only to those contract employees who specifically traveled to the work location, and that its technical representative was responsible for ensuring compliance. The majority noted that the Respondent discovered the Complainant’s role in obtaining the per diem during its investigation.

The majority and concurrence/dissent revisited their disagreement over the significance of the decisions in Fordham v. Fannie Mae , ARB No. 12-061, ALJ No. 2010-SOX-51 (ARB Oct. 9, 2014 and Powers v. Union Pacific Railroad , ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Apr. 21, 2015).

Dissent finds ALJ applied wrong standards of proof, and improperly weighed affirmative defense evidence at contributing factor stage under Fordham and Powers

In an extended concurring and dissenting opinion, Judge Royce explained that she would have found that the ALJ improperly required the Complainant to proof pretext, and erroneously imported proof of the Respondent’s motive into the “contributing factor” standard. Judge Royce would have reversed the ALJ’s decision on causation and remanded. Judge Royce stated, in part:

   In this regard [i.e., what the ALJ should do on remand], the Board’s recent decisions in Fordham v. Fannie Mae , ARB No. 12-061, ALJ No. 2010-SOX-051 (ARB Oct. 9, 2014), as reaffirmed and clarified en banc in Powers v. Union Pacific Railroad , ARB No. 13-034, ALJ No. 2010-FRS-030 (ARB Apr. 21, 2015) are particularly germane. Under those cases, it is generally impermissible to weigh a respondent’s affirmative defense evidence (supporting a non-retaliatory reason for the adverse action at issue) against a complainant’s causation evidence at the “contributing factor” stage because the respondent’s affirmative defense evidence must be weighed under the heightened “clear and convincing evidence” burden of proof standard.

   Properly applied, Fordham and Powers require reversal of the ALJ’s causation finding in this case because the ALJ incorrectly weighed [the Respondent]’s affirmative defense evidence at the contributing factor stage.

USDOL/OALJ Reporter at 20 (footnotes omitted). Judge Royce then explained her strong disagreement with the majority that Powers overruled Fordham in regard to weighing of evidence at the contributing factor stage. Judge Royce found: “Under the facts of this case, the ALJ erred in ruling that [the Complainant]failed to prove the contributing factor element of his claim, because that ruling is based on the subjective testimony of [the Respondent’s] managers regarding their alleged legitimate business reasons for [the Complainant]’s termination � “evidence that is of highly questionable relevance to contribution.” Id . at 23 (footnotes omitted). Judge Royce found that the ALJ’s purportedly determinative conclusion of fact, that the UAA was revoked based solely on the Respondent’s belief that the Complainant had shown a lack of honesty, was both not supported by substantial evidence, and not determinative because under the ERA burdens of proof, a complainant is not required to demonstrate retaliatory motive or animus.

Majority rejects separate opinion’s argument that Powers did not move away from Fordham decision in regard to weighing of respondents’ evidence at contributing factor stage

The majority responded to Judge Royce, writing, in part:

   Contrary to the opinion of the dissent, the explanations and holding in the Powers ’ majority speak against a remand in this case. In Powers v. Union Pacific Railroad , ARB No. 13-034, ALJ No. 2010-FRS-030, slip op. at 20, 22 (ARB Mar. 20, 2015) (reissued with full dissent Apr. 21, 2015), the majority stated “there is no inherent limitation on specific admissible evidence that can be evaluated for determining contributing factor causation as long as the evidence is relevant to that element of proof ,” (emphasis original) and that the ALJ has discretion to determine relevance. � In discussing contributing factor, the majority in Powers expressly reiterates its attempt to move away from Fordham ’s strict bar against considering employer’s evidence in saying that Fordham only “seem[s] to foreclose” considering the employee’s evidence and not to read Fordham so “narrowly.” Ultimately, in explaining the basis for its remand, the majority in Powers did not say that a respondent’s proffered reasons were irrelevant but, instead, questioned its weight.

USDOL/OALJ Reporter at 10-11 (footnotes omitted). Judge Royce had contended in her separate opinion that the majority had taken the sentence from Powers about relevance of the evidence out of context and that Powers had adopted the Fordham decision without reservation .

[STAA Whistleblower Digest II H 4 a]
PETITION FOR ARB REVIEW; PRO SE LITIGANT IS REQUIRED TO IDENTIFY ISSUES FOR REVIEW AND TO SUPPORT PETITON WITH LEGAL ARGUMENTS; IN THE INSTANT CASE, THE ARB NONETHELESS MADE AN INDEPENDENT EVALUATION OF THE ALJ’S DECISION AS TO SUBSTANTIAL EVIDENCE OF RECORD AND CONCLUSIONS OF LAW

In Salyer v. Sunstar Engineering , ARB No. 15-056, ALJ No. 2012-STA-23 (ARB Sept. 29, 2015), the Complainant filed a one-page petition for review with the ARB, failing therein to address or even mention the ALJ’s main holdings. The ARB stated that “[d]espite [the Complainant]’s pro se status, he has the obligation to identify ALJ holdings for this Board to review on appeal and to substantiate those issues with supported legal argument.” USDOL/OALJ Reporter at 2-3. The ARB stated that the Complainant’s “pleadings fail to state a sufficient basis for reversal even when viewed with the latitude warranted by his pro se status.” Id . at 3. Nonetheless, the ARB stated that it had “independently evaluated the ALJ’s decision �.” Id .

[STAA Digest IV G]
CONTRIBUTING FACTOR ELEMENT OF STAA COMPLAINT; COMPLAINANT DOES NOT NEED TO DEMONSTRATE RETALIATORY MOTIVE OR MOTIVATION BY RESPONDENT

In Salyer v. Sunstar Engineering , ARB No. 15-056, ALJ No. 2012-STA-23 (ARB Sept. 29, 2015), the Respondent extended the Complainant’s probationary period by 30 days on the ground that the Complainant had performance issues. After a hearing, the ALJ found a lack of evidence indicating that the extension of the probationary period was motivated by the Complainant’s safety complaints. The ARB disavowed this portion of the ALJ’s decision, stating: “[A]s the ARB has repeatedly recognized, under the STAA, as amended, an employee need not demonstrate the existence of a retaliatory motive on the part of the employer taking the alleged prohibited personnel action in order to establish that his protected activity was a contributing factor to the personnel action. See, e.g., Beatty v. Inman Trucking Mgmt. , ARB No. 13-039, ALJ Nos. 2008-STA-020, -021, slip op. at 8 (ARB May 13, 2014); White v. Action Expediting, Inc. , ARB No. 13-015, ALJ No. 2011-STA-011, slip op. at 5 (ARB June 6, 2014); Blackie v. D. Pierce Transp. , ARB No. 13-065, ALJ No. 2011-STA-055, slip op. at 10 (ARB June 17, 2014).” USDOL/OALJ Reporter at 3, n.4. The ARB affirmed the ALJ’s decision, however, because substantial evidence supported the ALJ’s alternative finding that the Respondent established by clear and convincing evidence that it would have extended the probationary period regardless of the Complainant’s protected activity.

PROTECTED ACTIVITY; GATHERING OF EVIDENCE TO SUPPORT A WHISTLEBLOWER COMPLAINT, SUCH AS TAPE RECORDING INVOLVING WORKPLACE SAFETY, IS PROTECTED ACTIVITY; INDISCRIMINATE AND EXCESSIVE RECORDING OF UNRELATED TOPICS, HOWEVER, MAY PROVIDE GROUNDS FOR DISCIPLINARY ACTION

In Franchini v. Argonne National Laboratory , ARB No. 13-081, ALJ No. 2009-ERA-14 (ARB Sept. 28, 2015), the Complainant made repeated safety complaints to various levels of management beginning in the summer of 2007 and continuing in 2008. During same period, the Complainant recorded conversations with co-workers and management, often without their knowledge or consent. The ARB found that ”to the extent that some of [the Complainant]’s recordings taken during his employment involved work place safety concerns and were taken, as he testified, because he anticipated using the recordings in seeking resolution of problems he had identified ‘outside the Lab,’ � such recordings would constitute ERA-protected activity.” USDOL/OALJ Reporter at 14 (citations omitted). In a footnote, the ARB cited decisions distinguishing between recordings involving workplace safety concerns, such as involving gathering of evidence in support of a complaint, i.e., ”selective recordings,” and indiscriminate and excessive recording of unrelated topics which create an independent legal basis for disciplinary action. USDOL/OALJ Reporter at 14, n.62, citing Melendez v. Exxon Chem. Am. , ARB No. 96-051, ALJ No. 1993-ERA-6, slip op. at 18 (ARB July 14, 2000); Mosbaugh v. Georgia Power Co. , 1991-ERA-1 (Sec’y Nov. 20, 1995); and Hoffman v. Net Jets Aviation Inc. , ARB No. 09-021, ALJ No. 2007-AIR-7 (ARB Mar. 24, 2001).

CONTRIBUTING FACTOR CAUSATION STAGE; WHETHER ALJ ERRED IN CONSIDERING RESPONDENT’S EVIDENCE ON WHY IT TERMINATED THE COMPLAINANT’S EMPLOYMENT; ARB MEMBERS’ DISAGREEMENT ON INTERPRETATION OF ARB PRECEDENT: POWERS , FORDHAM AND ADDIS

In Franchini v. Argonne National Laboratory , ARB No. 13-081, ALJ No. 2009-ERA-14 (ARB Sept. 28, 2015), the Complainant made repeated safety complaints to various levels of management beginning in the summer of 2007 and continuing in 2008. During same period, the Complainant recorded conversations with co-workers and management, often without their knowledge or consent, including conversations involving workplace safety concerns. Ultimately, the Respondent ordered the Complainant to produce all the recordings and other documentation, and when he failed to do so by the prescribed date, terminated his employment. The Complainant attested that the first time he saw the letter ordering him to turn over the materials or face possible termination was at a grievance hearing over two months after he was terminated.

An ALJ granted summary decision in favor of the Respondent, and in 2012 the ARB reversed and remanded for further proceedings. On remand, a different ALJ again granted summary decision in favor of the Respondent (the original ALJ having retired). On remand, the ALJ focused on the Complainant’s protected activity prior to a June 2008 meeting with company officials regarding the tape recording, and concluded that the Complainant failed to create a genuine issue of material fact as to contributory factor/causation. The ARB harshly criticized the ALJ’s reasoning that both the company’s policy regarding workplace recording, and whether the Complainant violated state or federal law, were irrelevant because the Complainant had agreed to turn over the tapes but failed to do so. The ARB found that this was essentially saying: ” If an employee agrees to take action at the request of his or her employer under threat of termination, but fails to do so, his or her employment may be terminated regardless of whether the employee’s failure violated company policy or applicable law .” USDOL/OALJ Reporter at 13 (italics as in original). The ARB reviewed the record and found circumstantial evidence in the form of temporal proximity (three months) that protected activity was a contributing factor in the termination. The ARB then considered whether undisputed evidence of record ”overwhelmingly demonstrates” that the Complainant’s failure to turn over the tapes as promised was an intervening event justifying the termination. The ARB found two reasons warranted rejection of summary decision.

First, the ARB panel’s majority found that ”the ALJ ignored or discounted [the Complainant’s] circumstantial evidence of causation in favor of evidence submitted by [the Respondent] in support of its affirmative defense as to why it terminated [the Complainant’s] employment. In doing so, the ALJ ran afoul of the Board’s decision in Fordham v. Fannie Mae , ARB No. 12-061, ALJ No. 2010-SOX-051 (ARB Oct. 9, 2014), as reaffirmed and clarified en banc in Powers v. Union Pacific Railroad Co. , ARB No. 13-034, ALJ No. 2010-FRS-030 (ARB Apr. 21, 2015).” Id . at 16 (footnote omitted). The panel majority

CONTRIBUTING FACTOR; SUBSTANTIAL EVIDENCE FOUND TO SUPPORT ALJ’S FINDING THAT COMPLAINANT FAILED TO ESTABLISH CONTRIBUTING FACTOR; ARB CONTINUES TO DISAGREE OVER WHETHER ALJ ERRS IN CONSIDERING RESPONDENT’S EVIDENCE AT CONTRIBUTING FACTOR STAGE UNDER POWERS AND FORDHAM

ARB DISAGREES OVER WHETHER IT SHOULD REACH CLEAR AND CONVINCING EVIDENCE FACTOR WHERE ALJ DID NOT REACH THAT ISSUE; TWO JUDGE MAJORITY WOULD NOT DO SO IN FACT INTENSIVE CASE EXCEPT IN RARE CIRCUMSTANCES; CONCURRING JUDGE RULED ON THAT ISSUE BECAUSE HE CONCLUDED THAT THE COMPLAINANT HAD MET THE CONTRIBUTING FACTOR BURDEN, BUT THAT THE SAME EVIDENCE CARRIED THE CASE FOR THE RESPONDENT ON ITS CLEAR AND CONVINCING EVIDENCE BURDEN

In Stewart v. Lockheed Martin Aeronautics Co. , ARB No. 14-033, ALJ No. 2013-SOX-19 (ARB Sept. 10, 2015), the ARB summarily affirmed the ALJ’s decision denying the Complainant’s SOX complaint asserting that the Respondent constructively discharged her, denied her request to telecommute regularly, and harassed her because she engaged in protected activity. The ARB found that substantial evidence supported the ALJ’s finding that there was no causal link between the alleged protected activity and the alleged adverse action. The ALJ had found that the Respondent had suspended telecommuting before any protected activity and for unrelated reasons, and had denied the Complainant’s request for a telecommuting accommodation because she was a lead and needed to be in the office to train her team, and because it would be easier to repair a communications problem with a co-worker if they were both in the office. The ALJ found that the Respondent had treated the Complainant the same as a similarly situated employee. And the ALJ found regarding the alleged harassment that the conflicts had arisen when the Respondent decided to suspend telecommuting and not because of the audit concerns raised by the Complainant. Finally, the ALJ found in regard to the alleged constructive discharge that the Complainant had voluntarily retired.

The two-judge majority (Corchado and Igasaki) noted that it was not addressing the issue of clear and convincing evidence on which the concurring judge relied, because the ALJ had not addressed the issue, and because it would be improper to do so in such a fact-intensive issue absence rare circumstances not present here. The majority noted that the concurrence had reached the issue as a matter of pragmatism, but voiced its lack of understanding of how the concurrence could do so by citing Powers v. Union Pacific R.R. , ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB April 21, 2015) and Abbs v. Con-way Freight, Inc. , ARB No. 12-016, ALJ No. 2007-STA-37 (ARB Oct. 17, 2012), given that the ALJs never reached the question of “clear and convincing” in those cases and involved fundamentally different facts.

Judge Brown in his concurring opinion would have found, in reliance on Fordham v. Fannie Mae , ARB No. 12-061, ALJ No. 2010-SOX-51 (ARB Oct. 9, 2014), and Powers , supra , that the Complainant proved “contributing factor” causation, but that the same facts show by clear and convincing evidence that the employer would have taken the same adverse action absent Complainant’s protected activity.

Judge Brown stated that the ALJ had erred in the “contributing factor” stage in considering the Respondent’s evidence, but concluded that the same evidence met the Respondent’s burden on the “clear and convincing” stage. The majority indicated in a footnote that Powers and Abbs contradict Fordham on the question of whether an ALJ errs in relying on the employer’s reasons on the issue of contributing factor.

ATTORNEY FEES: PETITION WELL DOCUMENTED, REASONABLE, AND NOT EXCESSIVE FOR LITIGATION BEFORE BOARD

In Leiva v. Union Pacific R.R. Co., Inc. , ARB Nos. 14-016, 14-017, ALJ case. No. 2013-FRS-19 (ARB Sept. 4, 2015), the ARB awarded the Complainant’s petition for fees requesting $6,670 for litigation before ARB where the petition was not opposed, and was well documented, reasonable, and not excessive.

LOSS OF DOL, AND, THUS ARB JURISDICTION, AS A RESULT OF REMOVAL TO DISTRICT COURTOF COMPLAINANT’S FIRST COMPLAINT COMPELS LOSS OF JURISDICTION OVER SECOND COMPLAINT COMPOSED OF SAME CLAIMS

NOTICE OF REMOVAL/“KICK-OUT”; SANCTION OF $1000 TO COMPLAINANT; LOSS OF JURISDICTION; WHERE COMPLAINANT HAD FILED NOTICE OF REMOVAL WITH ALJ PRIOR TO HER ISSUANCE OF $1000 IN SANCTIONS, OUT OF ABUNDANCE OF CAUTION, ARB WILL VACATE THAT ORDER

In Fuqua v. SVOX AG , ARB No. 14-069, ALJ No. 2014-SOX-18 (ARB Sept. 2, 2015), Complainant filed two whistleblower reprisal complaints. The ALJ issued an Order granting summary decision and dismissed the complaint. The Complainant filed an appeal with the ARB in December 2013.

Complainant filed a second complaint with OSHA in late December 2013. He added a new party, Inskeep. A different ALJ issued an Order dismissing the complaint and determining that the second complaint was merely the same claims previously dismissed. She ordered Complainant to pay attorney fees in the amount of $1000. Complainant then filed a petition for review of the second case with the ARB.

In the meantime, Complainant also informed the ARB that he was removing or “kicking out” his first Complaint to federal district court; in turn, Respondents filed a motion to dismiss the first case before the ARB for lack of jurisdiction.

The ARB issued a show cause Order asking why both complaints should not be dismissed for lack of jurisdiction. It then dismissed the first Complaint for lack of jurisdiction and closed the first case, ARB No, 14-014.

The ARB held that the two complaints asserted the same claims, i.e., reinstatement, back pay, and fees and costs. It held that the new complaint merely added a “false denial ” claim and an additional party. Inasmuch as the second complaint involved the same claims as the first one, and that first one had been removed to federal district court resulting in a loss of the ARB’s jurisdiction, the ARB dismissed the case based on a lack of jurisdiction.

The ARB also vacated the sanction of $1000 because of its lack of jurisdiction out of an “abundance of caution” and without determining the issue of whether the ALJ abused her discretion with regard to the issuance of that sanction.

The Complainant withdrew his petition for ARB review.