USDOL/OALJ Reporter: ARB Decision Caselist - September 2017

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CONTRIBUTING FACTOR CAUSATION; ALJ’S GRANT OF SUMMARY DECISION DENYING COMPLAINT AFFIRMED WHERE COMPLAINANT FAILED TO SHOW A GENUINE ISSUE OF MATERIAL FACT SHOWING THAT THE DECISION MAKERS KNEW ABOUT THE PROTECTED ACTIVITY OR THAT TERMINATION WAS ORCHESTRATED OR THAT AN INTERVENING EVENT HAD NOT BROKEN A WEAK INFERENCE BASED ON TEMPORAL PROXIMITY

ALJ’S IN CAMERA REVIEW TO DETERMINE RELEVANCY

In Cobb v. FedEx Corporate Services, Inc. , ARB No. 16-030, ALJ No. 2010-AIR-24 (ARB Sept. 29, 2017), the ARB affirmed the ALJ’s grant of the Respondent’s motion for summary decision because the record did not show a genuine issue of material fact that permitted a finding that the Respondent terminated the Complainant’s employment, in whole or in part, because of protected activity under AIR21. The record did show that the Complainant communicated concerns about the safety of a runway to FedEx executives.  The Complainant, however, failed to provide evidence or argument that any of the persons, who had received those concerns were involved in the decision to terminate his employment or communicated protected activity to the decision makers prior to the Complainant’s termination for abuse of a discount mailing privilege.

The Complainant speculated that the Respondent’s vice-president of security orchestrated the termination, and sought emails in discovery to establish a link between the termination and protected activity. The ALJ allowed limited production and reviewed the emails in camera.  After in camera review, the ALJ agreed with the Respondent that the emails were not connected to the Complainant’s case.   The ARB found that the Complainant produced no direct or circumstantial evidence that the VP had orchestrated the termination, and noted that the VP had provided a declaration  stating that he had no recollection of any role in the termination decision and did not remember receiving the Complainant’s study or complaint or sending notice of it to anyone.

The ALJ also found that the abuse of the mailing privilege was an intervening event that broke any inference of causation stemming from the Complainant’s dissemination of his study on the runway’s safety. The ARB clarified that the ALJ had erred in finding a three year break between the protected activity and the termination because the Complainant had at least mentioned or refreshed the issue in the interim.  The ARB, however, still found that the inference was weak because there was a long gap with no protected reports, and the Complainant had received a promotion and award in the interim.  But, even more importantly, the shipping privilege violation was an intervening event with a strong causal connection to the termination, and the HR department and the Complainant’s supervisor testified that they did not know of the protected activity prior to the termination for the shipping privilege violation.

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ADVERSE ACTION; BURLINGTON-NORTHERN/WILLIAMS/FRICKA/VERNACE CASELAW CALLS FOR EXPANSIVE VIEW OF WHAT IS MATERIALLY ADVERSE

ADVERSE ACTION; IMPLICIT POTENTIAL FOR DISCIPLINE IN CHARGE LETTER IS SUFFICIENT TO SURVIVE MOTION FOR SUMMARY DECISION

In Stallard v. Norfolk Southern Railway Co. , ARB No. 16-028, ALJ No. 2014-FRS-149 (ARB Sept. 29, 2017), the Complainant reported a back injury at work and received medical care.  The Complainant’s personal physician accidentally checked a box in a follow-up examination stating that the injury occurred at home rather than on-duty.  A claim agent noticed the discrepancy about where the injury occurred.  A company physician was consulted, and after reviewing hospital records, concluded that there was no way of knowing whether the injury occurred at home or at work.  In the meantime, the Complainant’s personal physician faxed in a correction to state that the injury occurred at work.  This correction was not immediately reported through channels, and a charge letter was sent scheduling a hearing to determine whether the Complainant provided false statements to the Respondent.  The Complainant’s supervisor was provided Facebook photographs indicating that the Complainant apparently had been physically active at a social event, and learned of a rumor that the Complainant had been working at a golf course.  The hearing was postponed at the Complainant’s request.  The personal physician re-sent his correction memo.  Upon learning of the correction, the Respondent’s officials debated whether to cancel the hearing, but decided to keep it scheduled in the event that the rumors and suspicions about the severity of the Complainant’s injury could be confirmed.  The hearing was canceled about a month later when the Complainant requested an indefinite postponement due to his medical treatment for the injury.  The Complainant ultimately had back surgery and never returned to work.  The Complainant filed an FRSA retaliation complaint with OSHA.  OSHA dismissed the complaint.  The Complainant requested an ALJ hearing.  The ALJ granted summary decision in favor of the Respondent finding no genuine issue of material fact regarding whether the Complainant suffered an adverse action.  The ARB vacated the ALJ’s decision and remanded.

Factual disputes precluded summary decision

Initially, the ARB noted that that the ALJ had apparently weighed evidence and made factual inferences inconsistent with the summary decision phase, during which the question was not whether an adverse action occurred, but only whether, given the evidence presented, there was a reasonable question whether an adverse action occurred.

The ARB noted that the Complainant’s allegation was that the Respondent’s scheduling of a disciplinary investigation constituted deliberate retaliation, intimidation and harassment for reporting an on-duty injury. The Complainant alleged that the charge affected his personnel record, and that he suffered anxiety and emotional distress because of the scheduled hearing and the implicit threat of termination.  The Respondent countered that the Complainant suffered no consequences and that nothing was placed on his permanent record.  There was a dispute as to whether the internal hearing was routine or a pretext for retaliation.  The ARB found that viewing the evidence in the light most favorable to the Complainant, a reasonable person could find the charge letter to be materially adverse.

Burlington Northern materially adverse standard applied expansively in FRSA retaliation cases

In her decision, the ALJ had used the adverse action standard from Burlington Northern & Santa Fe Ry. Co. v. White , 548 U.S. 53 (2006), in determining that “it would not be ‘reasonable’ that an employee would be dissuaded from engaging in any protected activity because of the scheduling of a hearing, which was ultimately canceled .…”  USDOL/OALJ Reporter at 7, quoting ALJ’s ruling.  The ARB stated that the ALJ’s reliance on Burlington Northern was “not necessarily error” but found that the ALJ had failed to consider the ARB’s controlling precedent addressing Burlington Northern in FRSA retaliation cases.  The ARB wrote:

   In Williams v. American Airlines , the ARB departed somewhat from Burlington Northern explaining that it was unnecessary to turn to Title VII cases like Burlington Northern to determine what qualifies as adverse action under AIR 21.  Instead, the Board must construe adverse action consistently with the language of the AIR 21 whistleblower statute and its implementing regulations. The relevant implementing regulations prohibit actions “to intimidate, threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate against any employee” because of protected activity. Given the breadth of this regulatory definition as well as the explicit mention of “threats,” we observed in Williams that adverse action under AIR 21 should be construed more expansively than under Title VII. Accordingly, we held that a written warning or counseling session is presumptively adverse where: “(a) it is considered discipline by policy or practice, (b) it is routinely used as the first step in a progressive discipline policy, or (c) it implicitly or expressly references potential discipline.”  Noting also that AIR 21’s statutory language contains no express limitation of adverse actions to those actions that might dissuade a reasonable employee, the Board ruled that an adverse action need only be “more than trivial, either as a single event or in combination with other deliberate employer actions alleged.”

   In Fricka v. National Railroad Passenger Corporation, the ARB applied the Williams standard to FRSA cases noting that Congress expressly added “threatening discipline” as prohibited discrimination in FRSA section 20109(c).  In Zavaleta v. Alaska Airlines, Inc. , the ARB noted that the ALJ’s reliance on Burlington Northern was not necessarily error as that standard and the ARB’s Williams standard overlap. Both standards require some level of materiality that must be more than trivial harm. Nevertheless, as we noted in Vernace v. Port Authority Trans-Hudson Corp. , “[w]here termination, discipline, and/or threatened discipline are involved, there is no need to consider the alternative question whether the employment action will dissuade other employee s .”

USDOL/OALJ Reporter at 8-9 (footnotes omitted).

Charge letter need not explicitly mention potential discipline; such may be inferred by formality of investigation

In the instant case, the ARB found that although the charge letter had not explicitly mentioned potential discipline, it described a formal investigation supporting an inference that the letter contained the potential for discipline.

SUMMARY DECISION ON RESPONDENT’S AFFIRMATIVE DEFENSE, WHICH HAS TO BE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE IS PARTICULARLY CHALLENGING; EVEN WHERE A RESPONDENT ASSERTS A LEGITIMATE, NON-DISCRIMINATORY REASON FOR THE ADVERSE ACTION, SUMMARY DECISION IS DEFEATED WHERE THE COMPLAINANT POINTS TO FACTS OR EVIDENCE THAT COULD DISCREDIT THAT REASON

In Stallard v. Norfolk Southern Railway Co. , ARB No. 16-028, ALJ No. 2014-FRS-149 (ARB Sept. 29, 2017), the Complainant reported a back injury at work and received medical care.  The Complainant’s personal physician accidentally checked a box in a follow-up examination stating that the injury occurred at home rather than on-duty.  A claim agent noticed the discrepancy about where the injury occurred.  A company physician was consulted, and after reviewing hospital records, concluded that there was no way of knowing whether the injury occurred at home or at work.  In the meantime, the Complainant’s personal physician faxed in a correction to state that the injury occurred at work.  This correction was not immediately reported through channels, and a charge letter was sent scheduling a hearing to determine whether the Complainant provided false statements to the Respondent.  The Complainant’s supervisor was provided Facebook photographs indicating that the Complainant apparently had been physically active at a social event, and learned of a rumor that the Complainant had been working at a golf course.  The hearing was postponed at the Complainant’s request.  The personal physician re-sent his correction memo.  Upon learning of the correction, the Respondent’s officials debated whether to cancel the hearing, but decided to keep it scheduled in the event that the rumors and suspicions about the severity of the Complainant’s injury could be confirmed.  The hearing was canceled about a month later when the Complainant requested an indefinite postponement due to his medical treatment for the injury.  The Complainant ultimately had back surgery and never returned to work.  The Complainant filed an FRSA retaliation complaint with OSHA.  OSHA dismissed the complaint.  The Complainant requested an ALJ hearing.  The ALJ granted summary decision in favor of the Respondent finding that the Respondent had established by clear and convincing evidence that the Complainant’s report of a work injury was not a contributing factor in the alleged adverse action.  The ARB vacated the ALJ’s decision and remanded.

The ARB noted that a respondent’s burden of proof on this affirmative defense is to prove “by clear and convincing evidence” that it would have taken the adverse action in the absence of the injury.   The ARB stated that this is an intentionally high burden because “Congress intended to be protective of plaintiff-employees.”  Thus, resolving the issue of the Respondent’s affirmative defense by summary decision is “challenging.”  The ARB stated such “a fact-intensive assessment … requires a determination, on the record as a whole, how clear and convincing [the Respondent]’s lawful reasons were for scheduling and then cancelling a hearing into [the Complainant]’s injury. In analyzing the affirmative defense, it is not enough to confirm the rational basis of [the Respondent]’s employment policies and decisions. Instead, we must assess whether they are so powerful and clear that [the Respondent] would have charged [the Complainant] apart from the protected activity.”  USDOL/OALJ Reporter at 14.  

In the instant case, the Respondent contended that it presented undisputed facts consistent with the factors discussed by the ARB in DeFrancesco II, ARB No. 13-057, slip op. at 11-12, for determining whether a respondent has sufficiently demonstrated its affirmative defense in the context of a reported injury.  The ARB observed, however, that it has ruled that “even where a respondent asserts legitimate, non-discriminatory reasons as part of its affirmative defense, a complainant can create a genuine issue of fact by pointing to specific facts or evidence that, if believed, could discredit the respondent’s reasons, making them less convincing on summary decision.” USDOL/OALJ Reporter at 14, quoting Henderson , ARB No. 11-013, slip op. at 15.  The ARB found that in the instant case there were disputed facts on motivation that prevented summary decision on the affirmative defense.  For example, the Complainant provided sufficient evidence to create an issue of fact that the Respondent’s conduct surrounding the charge letter suggested pretext designed to unearth some plausible basis on which to punish the Complainant for the injury report.

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PROTECTED ACTIVITY; DRIVING TRUCK AFTER RAISING SAFETY CONCERN DOES NOT REMOVE PROTECTION UNDER SECTION 31105(A)(1)(A)(i)

PROTECTED ACTIVITY; WHERE COMPLAINANT BOTH COMPLAINS AND REFUSES TO DRIVE A TRUCK, IT IS POSSIBLE THAT THERE WAS PROTECTED ACTIVITY UNDER BOTH SECTIONS 31105(a)(1)(A)(i) AND 31105(a)(1)(B)

In Irwin v. Nashville Plywood, Inc. , ARB No. 16-033, ALJ No. 2014-STA-61 (ARB Sept. 27, 2017), the Complainant filed an STAA whistleblower complaint alleging that the Respondent fired him after he complained about and refused to drive overloaded trucks. The ARB found that substantial evidence supported the ALJ’s decision in favor of the Complainant.

On appeal, the Respondent argued that the ALJ erred in finding protected activity on two occasions under 49 U.S.C. § 31005(a)(1)(A)(i), which protects an “employee, or another person at the employee’s request, [who] has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order ….” The Respondent’s argument was apparently that a complaint about overloading was not protected when the Complainant subsequently drove the truck, or because such a complaint should properly be categorized as a “refusal-to-drive” case under 49 U.S.C. § 31005(a)(1)(B). 

Driving truck after raising safety concern does not remove protection under section 31105(a)(1)(A)(i)

The ARB ruled that the fact that on one occasion the Complainant had subsequently driven the truck did not mean that section 31105(a)(1)(A)(i) did not protect his complaint.   The ARB stated:  “A complaint, which may be oral, informal, or unofficial, is protected if it concerns a reasonably perceived violation of a safety regulation.” Here, the Complainant credibly testified that he considered the truck to exceed its permissible weight because the state-registered, allowable weight and the manufacturer’s gross vehicle weight rating (“GVWR”) are two “different things.”  The Respondent added a third axle to the trucks driven by the Complainant to permit a larger load (a “tag axle”), and had registered those trucks with the state with a weight rating higher than the GVWR.  The Complainant, however, had explained that adding an axle  may not  be sufficient to make a vehicle safe for a higher weight – additional changes might be needed, such as to the front axle, suspension and tires.  The ARB also noted that the Complainant testified that the truck was dangerously loaded above the headboard.  This established that the Complainant complained about reasonably perceived violations of a regulation related to safety.  The ARB ruled that although the Complainant drove the truck after making his concerns known, he still engaged in protected activity.

Where complainant both complains and refuses to drive a truck, it is possible that there was protected activity under both section 31105(a)(1)(A)(i) and section 31105(a)(1)(B)

The ARB was also not persuaded by the Respondent’s argument that because the Complainant refused to drive the truck on the second occasion, the case was covered by the section 31105(a)(1)(B) refusal-to-drive provision and not section 31105(a)(1)(A)(i). The ARB wrote:  “[I]t is possible to engage in more than one protected activity. On December 9, 2013, Irwin both complained about and refused to drive the truck. Irwin’s refusal to drive provides another basis of protection, but does not deprive him of protection for his complaints under section 31105(a)(1)(A)(i).”

Substantial evidence supported ALJ’s finding on refusal to drive provision that there would have been an actual violation if the Complainant had driven the truck

The Respondent also contended that the ALJ erred in finding protected activity under 49 U.S.C.A. § 31105(a)(1)(B)(i) on the occasion where the Complainant refused to drive, because the Complainant had not presented evidence demonstrating that an actual violation of a regulation would have resulted. Specifically, the Respondent claimed that the Complainant had not carried his burden of proof because he “just guessed” about the distance between the two rear axles as relevant to whether the state regulation applied, and that the ALJ had ignored testimony that the Complainant could control the tag axle and the weight distribution among the axles.  The ARB, however, found that substantial evidence and the law supported the ALJ’s conclusion that driving the truck would have violated a commercial motor vehicle regulation.  The Complainant had gotten the truck weighed and received a ticket showing excessive weight under the state regulation at the drive axle.  Moreover, The ALJ had credited the Complainant’s unrefuted testimony that the axles were so close that they were considered a single axle under the state regulation and that one of the trucks could not displace weight with a tag axle.

COMPENSATORY DAMAGES; ARB FINDS THAT COMPLAINANT’S LACK OF A LEGAL OBLIGATION TO PROVIDE FOR NIECES DID NOT UNDERMINE ALJ’S COMPENSATORY DAMAGES AWARD WHERE THE COMPLAINANT’S BEING UNABLE TO PROVIDE FOR LOVED ONES DURING THE HOLIDAYS HAD EXACERBATED HIS FEELINGS OF BETRAYAL, WORTHLESSNESS AND DEPRESSION

In Irwin v. Nashville Plywood, Inc. , ARB No. 16-033, ALJ No. 2014-STA-61 (ARB Sept. 27, 2017), the Complainant filed an STAA whistleblower complaint alleging that the Respondent fired him after he complained about and refused to drive overloaded trucks. The ALJ found in favor of the Complainant and awarded relief which included compensatory damages.  The ALJ had found the Complainant’s testimony about how the termination affected him credible.  The Complainant had testified that he felt “betrayed,” “worthless,” and “depressed” following the termination and that “he could not provide his two nieces, who live with him, a meaningful Christmas because he did not have disposable income.”  USDOL/OALJ Reporter at 5-6, quoting from ALJ’s D&O.

On appeal, the Respondent contended that the Complainant was not entitled to compensatory damages because he had no legal or other obligation to support his sister and two nieces. The ARB was not persuaded by this contention, writing:  “There is no requirement in the law that the factors forming the basis for compensatory damages include legal obligations. “ Id . at 11.  The ARB noted consistent precedent that compensatory damages under the STAA include damages for pain and suffering, mental anguish, embarrassment, and humiliation, and that the Complainant’s feelings of betrayal, worthlessness and depression had been “was exacerbated by being fired in December and being unable to provide for his loved ones during the holidays.” Id . at 12.

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IN DETERMINING WHETHER THE COMPLAINANT IS A "SEAMAN" WITHIN THE MEANING OF THE EMPLOYEE PROTECTION PROVISION OF THE SEAMAN'S PROTECTION ACT, WHICH REQUIRES A DETERMINATION OF WHETHER THE COMPLAINANT WAS EMPLOYED BY A "CITIZEN OF THE UNITED STATES," CONSIDERATION MUST BE GIVEN TO THE FACT THAT THE REGULATIONS' DEFINITION OF VESSEL OWNER INCLUDES "ALL AGENTS OF THE OWNER"

In Gummala v. Carnival Cruise Lines, Inc. , ARB No. 15-088, ALJ No. 2015-SPA-1 (ARB Sept. 26, 2017), the Complainant was a citizen of India residing in Chile, employed as a photographer aboard the Carnival vessel Fascination. Carnival Fascination was operated by Carnival Cruise Lines and flew a Bahamian flag. Carnival Corporation, incorporated in Panama, owns Carnival Cruise Lines, which is a Florida corporation and division of Carnival Corporation. The ALJ dismissed the Complainant's Seaman’s Protection Act on the ground that the Complainant did not meet the definition of “seaman” because Carnival Corporation was the vessel's owner, and was not incorporated under the laws of the U.S. or a state, but instead Panama. Slip op. at 2; see also Gummala v. Carnival Cruise Lines, Inc. , 2015-SPA-1 (ALJ Aug. 6, 2015) (citing 29 C.F.R. 1986.101(d)(2)(i)). The ARB found that the ALJ failed to consider that the regulatory definition of “vessel owner” includes “all agents of the owner….“ (citing 29 C.F.R. § 1986.101(q)). The ARB concluded that Carnival Cruise Lines, a U.S. subsidiary of Carnival Corporation, was “likely also a vessel owner and agent as the operator of the vessel.” The Complainant had not specifically made this argument before the ARB on appeal, but the ARB nonetheless remanded because it gives pro se pleading latitude.

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SUMMARY DECISION; DELAY IN RETIREMENT BENEFITS CHECKS; FAILURE TO ESTABLISH GENUINE ISSUE OF MATERIAL FACT THAT PROCESSORS OF RETIREMENT CHECKS KNEW ABOUT PROTECTED ACTIVITY

In Kelly-Lusk v. Delta Airlines, Inc. , ARB No. 16-041, ALJ No. 2014-TSC-3 (ARB Sept. 18, 2017), the Complainant filed a whistleblower complaint alleging that her former employer retaliated against her for engaging in protected activity by causing two retirement benefits checks to be delayed. The retirement checks were processed by Xerox Corporation through a standard automated process. The ARB affirmed the ALJ’s grant of summary decision in favor of the Respondent. The ALJ had found that the Complainant had not raised a genuine issue of material fact regarding whether the individuals who were involved in the processing of her retirement checks knew of her alleged protected activity from 26 years previously. The Complainant theorized that the checks were delayed in retaliation for her asking a Human Relations Vice-President for for material information about the incident from 26 years previously; but the record showed that the checks were already late by the time the Complainant contacted the HR VP. The ARB found that the Complainant “failed to proffer any facts (as opposed to conspiracy theories) establishing that anyone responsible for processing her retirement checks knew that she had engaged in any allegedly protected activity prior to the delayed checks.” Slip op. at 12. The ARB found that the ALJ did not abuse his discretion in granting a protective order for the deposition of the HR VP where the ALJ found that two lower level officers had already been deposed and the additional deposition was unlikely to lead to information that would assist in obtaining additional evidence for the record.

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The ARB approved a settlement agreement reached by the parties while the case was pending on appeal before the Ninth Circuit. The court had ordered: “Pursuant to the terms of the parties’ stipulation . . . , the appeal is dismissed without prejudice to reinstatement in the event the Administrative Review Board fails to approve the parties’ settlement agreement.” The parties jointly moved the ARB to approve the settlement agreement.