USDOL/OALJ Reporter: ARB Decision Caselist -- October 2008

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Summary :

In Bechtel v. Competitive Technologies, Inc. , ARB No. 06-010, ALJ No. 2005-SOX-33 (ARB Oct. 31, 2008), the ARB declined to reconsider where the Complainant's arguments in support of reconsideration were not material or merely rehashed arguments already considered and rejected.

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Summary :

[Nuclear and Environmental Digest XII B 1 a]
PROTECTED ACTIVITY; PARTICIPATION IN INTERNAL INVESTIGATION; COMPLAINANT LOSES PROTECTED STATUS WHERE HIS PARTICIPATION HAMPERS RATHER THAN ASSISTS THE PURPOSES OF THE ENVIRONMENTAL ACTS

In Caldwell v. EG&G Defense Materials, Inc. , ARB No. 05-101, ALJ No. 2003-SDW-1 (ARB Oct. 31, 2008), the ARB held that the Complainant's initial participation in an internal investigation of a hazardous waste incident was protected activity under the SDWA because it was an action to further the purpose of the environmental acts to protect the public health and the environment. The Complainant's participation, however, lost its protected status when the Complainant made unwarranted assurances to the investigatory team concerning the installation and operation of valves, and failed to fully disclose critical information that delayed the team's discovery of the source of agent leaks and contributed to another agent migration. At that point, therefore, the Complainant's participation no longer furthered the purpose of the acts. The ARB wrote: "Instead of furthering the purpose of the environmental acts, his participation in the investigation actually endangered the public health and the environment. If we were to adopt Caldwell's argument that such conduct is protected activity, employees would be entitled, under the guise of protected activity, to interfere with internal investigations while also avoiding disciplinary action and successfully maintaining a claim against their employers if the employers take adverse action for their misconduct."

[Nuclear and Environmental Digest XI A 2 b ii]
CAUSATION; TEMPORAL PROXIMITY BETWEEN PROTECTED ACTIVITY AND ADVERSE ACTION NOT NECESSARILY DISPOSITIVE

In Caldwell v. EG&G Defense Materials, Inc. , ARB No. 05-101, ALJ No. 2003-SDW-1 (ARB Oct. 31, 2008), the Complainant was fired two days after the Respondent received notice of his filing of a whistleblower complaint with OSHA. The ARB stated that "[w]hile a temporal connection between protected activity and an adverse action may support an inference of retaliation, the inference is not necessarily dispositive." Reviewing the facts of the case, the ARB found that the record established legitimate reasons for the Respondent's actions in suspending and ultimately terminating the Complainant's employment, and that the Complainant had not proven that those reasons were pretext for discrimination or retaliation based on protected activity.

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Summary :

[STAA Digest V A 2 a]
PROTECTED ACTIVITY; SUFFICIENCY OF ORAL COMMUNICATION TO PUT RESPONDENT ON NOTICE THAT A COMPLAINT IS BEING FILED

In Jackson v. CPC Logistics , ARB No. 07-006, ALJ No. 2006-STA-4 (ARB Oct. 31, 2008), the Complainant's division manager testified that the Complainant had informed him that another driver was telling the Complainant to log illegally, and that he informed the Complainant the correct way to log and directed the Complainant to tell him if other drivers asked him to do anything illegal. The ALJ observed that "[i]f the internal communications are oral, they must be sufficient to give notice that a complaint is being filed." (citing Clean Harbors Env't Servs., Inc. v. Herman , 146 F.3d 12, 22 (1st Cir. 1998)). The ALJ then found that the Complainant's statements were insufficient to put the Respondent on notice that a complaint was being filed, and therefore the Complainant did not engage in protected activity. The ARB disagreed, finding that the Complainant's statements that he was forced to complete logs in a manner he reasonably believed was illegal constituted protected activity under the Act. The ARB found this error by the ALJ harmless, however, because it affirmed the ALJ's finding that there was a lack of causal connection between the Complainant's termination and the alleged protected activity.

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Summary :

Affirmance of ALJ's grant of summary judgment in favor of the Respondent. ARB adopted ALJ's decision.

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Summary :

The ALJ had granted summary decision based on the Complainant's failure to present evidence to discredit the Respondent's good faith belief that the Complainant's inability to perform a previously-scheduled bus run was entirely due to his own volitional acts. The ARB found that an issue of fact existed on whether the Complainant refused the run because of fatigue and the Respondent discharged him for that reason. Thus, it remanded for further proceedings.

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Summary :

Approval of Complainant's withdrawal of objections to OSHA's preliminary findings.

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Summary :

ALJ issued decision granting summary judgment against the Complainant. The Respondent filed a protective appeal. The Complainant did not appeal. The ARB thereafter approved the Respondent's request to withdraw its appeal.

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Summary :

TIMELINESS; 12 MONTH LIMITATIONS PERIOD

In Kersten v. Lagard, Inc. , ARB No. 06-111, ALJ No. 2005-LCA-17 (ARB Oct. 17, 2008), the Complainant's complaint that his H-1B employer had made material misrepresentations on its Labor Condition Application was time barred, where the complaint was filed more than 12 months after the allegedly false LCAs had been filed. Equitable tolling based on the continuing violation doctrine grounded on the assertions that the Respondent failed to make good on a promise to put the Complainant in a management position and that it did not pay him for the work he performed in addition to his Quality Control Engineer duties, was not warranted where the Complainant had not performed those additional duties for more than 12 months after the filing an LCA supporting an extension on the H-1B visa.

PROTECTED ACTIVITY; COMPLAINT THAT RESPONDENT DID NOT LIVE UP TO PROMISES OF FORMER PRESIDENT OF A MANAGEMENT POSITION NOT DESCRIBED IN THE LCA WAS NOT PROTECTED ACTIVITY

In Kersten v. Lagard, Inc. , ARB No. 06-111, ALJ No. 2005-LCA-17 (ARB Oct. 17, 2008), the Complainant had been induced to come the U.S. to work for the Respondent based its then President's verbal offer of a management position. The Employer's H-1B Labor Condition Application, however, was based on a salary and position as Quality Control Engineer. The President who made the management offer left the company. Over the course of his employment, the Complainant requested, to no avail, the Respondent to honor the former President's promise. Eventually, the Complainant engaged an attorney to write the Respondent to demand that the promise be kept. After the Complainant was terminated, he filed a complaint alleging that the termination was in retaliation for disclosing that the Respondent was in violation of the H-1B provisions. The ARB held that this argument had no merit because the attorney's letters did not evince the Complainant's reasonable belief that the Respondent had violated the INA's H-1B provisions or regulations. Even assuming that the Respondent fired the Complainant for complaining about not receiving what the former President had promised, the letters only complained that the Respondent had not kept the former President's promises. Those promises did not pertain to the scope of the INA's H-1B provisions or regulations and thus could not be the basis for INA protected activity.

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Summary :

Approval of Complainant's withdrawal of objections to OSHA's preliminary findings.

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