USDOL/OALJ Reporter: ARB Decision Caselist - October 2014

Appeals dismissed after the parties filed a joint motion requesting withdrawal of the Complainant's appeal of the ALJ's order on attorney's fees, and the Complainant's motion for attorney's fees for work performed before the ARB.

WEIGHING OF EVIDENCE ON CONTRIBUTING FACTOR ELEMENT; NOTICE OF EN BANC REVIEW

In Powers v. Union Pacific Railroad Co. , ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Oct. 17, 2014), , the ARB provided notice that it will address, en banc, the "contributory factor" analysis addressed in Fordham v. Fannie Mae , ARB No. 12-061, ALJ No. 2010-SOX-51 (ARB Oct. 9, 2014).

SPLIT PANEL OF THE ARB RULES THAT A RESPONDENT'S EVIDENCE OF LEGITIMATE, NON-RETALIATORY REASON FOR ADVERSE ACTION MAY NOT BE WEIGHED BY ALJ WHEN DETERMINING WHETHER COMPLAINANT MET HIS OR HER BURDEN OF PROVING CONTRIBUTING FACTOR CAUSATION BY A PREPONDERANCE OF THE EVIDENCE

In Fordham v. Fannie Mae , ARB No. 12-061, ALJ No. 2010-SOX-51 (ARB Oct. 9, 2014), the Complainant (Fordham), an IT Technical Risk Specialist, filed a SOX Section 806 complaint against Fannie Mae. In Fordham , a three-judge panel of the ARB took a fresh look at the contributing factor causation element of a SOX claim and held that

... the ALJ committed reversible error by weighing evidence offered by Fannie Mae in support of its affirmative defense that it would have taken the personnel action at issue in the absence of Fordham's protected activity for legitimate, non-retaliatory reasons. SOX statutorily imposes different burdens of proof on the respective parties, with the respondent required to prove by clear and convincing evidence that it would have taken the same personnel action had there been no whistleblower protected activity, should the complainant prove by a preponderance of the evidence that protected activity was a contributing factor in the adverse personnel action. Consequently, a respondent's evidence of a legitimate, non-retaliatory reason or basis for its decision or action is not weighed against a complainant's causation evidence in the determination of whether a SOX complainant has met his or her initial burden of proving "contributing factor" causation. The determination whether a complainant has met his or her initial burden of proving that protected activity was a contributing factor in the adverse personnel action at issue is required to be made based on the evidence submitted by the complainant, in disregard of any evidence submitted by the respondent in support of its affirmative defense that it would have taken the same personnel action for legitimate, non-retaliatory reasons only. Should the complainant meet his or her evidentiary burden of proving "contributing factor" causation, the respondent's affirmative defense evidence is then to be taken into consideration, subject to the higher "clear and convincing" evidence burden of proof standard, in determining whether or not the respondent is liable for violation of SOX's whistleblower protection provisions.

Slip op. at 2-3 (footnote omitted). In Powers v. Union Pacific Railroad Co. , ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Oct. 17, 2014), the ARB provided notice that it will review, en banc, the "contributory factor" analysis addressed in Fordham .

In its ruling in Fordham , the ARB panel indicated that the ALJ erred in not analyzing the evidence in terms of a prima facie case. The panel, quoting Bechtel v. Administrative Review Board, USDOL , 710 F.3d 443 (2d Cir. 2013), indicated that a prima facie case is merely a term referring to the four elements of a whistleblower complaint, and that "'[T]he same basic four-part framework of the complainant's prima facie case applies not only when deciding whether the allegations are legally sufficient, see 29 C.F.R. § 1980.104(e)(2), but also when an ALJ considers whether the complainant has satisfied his or her evidentiary burden under 49 U.S.C.A. § 42121(b)(2)(B)(iii).'''

With that clarification, the ARB panel turned to "[w]hat evidence is appropriately to be considered at the hearing stage in determining whether a complainant has met his or her burden of proving 'contributory factor' causation by a preponderance of the evidence test", and more specifically "whether the respondent's evidence of legitimate, non-retaliatory reasons for its action may be weighed against the complainant's causation evidence...." Id . at 19. The panel found that the case law was inconclusive on the subject, and therefore it would treat the issue as a matter of first impression.

The panel began with an analysis of Section 806 of SOX, which incorporates the legal burdens of proof set forth in the whistleblower provision of AIR21. The panel noted that "[i]t would seem self-evident" from AIR21's delineation of a "clear and convincing evidence" burden for the respondent for its affirmative defense, that the respondent’s evidence on this point is not considered at the initial " contributing cause" stage where a preponderance of the evidence test applies. The panel reasoned that permitting the employer to put on such evidence at the initial stage would render the statutorily prescribed affirmative defense meaningless. The panel concluded that weighing of the evidence at the initial stage "is exactly what the 'contributing factor' statutory provision was designed to eliminate." Id . at 23. The panel wrote: "An employer's legitimate business reasons may neither factually nor legally negate an employee's proof that protected activity contributed to an adverse action." Id .

The panel then turned to ARB case law, and found that it was inconclusive on the issue and had served to confuse "what otherwise appears straightforward." Id . Finding that ARB case authority did not resolve the issue presented, the ARB panel looked to federal appellate case law, and found that it was of no greater assistance. The ARB panel then looked to the statutory history of AIR21 and found nothing that addressed the issue directly. The ARB panel found, however, that the legislative history indicated Congress' intention to adopt the burdens of proof articulated in Mt. Healthy School Dist. Bd. of Educ. v. Doyle , 429 U.S. 274 (1977), which tied AIR21 whistleblower provisions to the 1992 amendments to the ERA whistleblower provision, which in turn tied AIR21 to the whistleblower provisions of the Whistleblower Protection Act (WPA) as originally adopted. The ARB panel, therefore, applying the statutory construction principle of in pari material , looked to the WPA for guidance.

Reviewing federal caselaw interpreting the WPA and the legislative origins of the WPA, the ARB panel found it clear that a respondent's evidence of a non-retaliatory basis for its action "is not weighed under the preponderance of the evidence standard against the complainant's evidence of 'contributing factor' causation." Fordham, supra at 33. The ARB panel noted that its ruling applied only to the contributing factor element of the four basic elements of a whistleblower complaint. An ALJ may consider the respondent's evidence directed at the other three basic elements. The panel acknowledged that the evidentiary methodology it found is "mandated by the 'contributing factor/clear and convincing evidence' burdens of proof distinction differs from the traditional evaluation of evidence under the preponderance of the evidence burden of proof standard whereby findings of fact are based on the weighing of all the evidence introduced by both parties." Id . at 34.

The majority, however, reasoned that "[p]roof by a complainant of the elements of a prima facie case of retaliation by a preponderance of the evidence, including proof of ‘contributing factor’ causation, shifts to the employer the burden of proving by ‘clear and convincing evidence’ not only the existence of a legitimate, non-retaliatory basis for the contested personnel action but that the employer would have taken the contested action on that basis alone had the complainant not engaged in protected activity." Id . at 37.

The dissent noted that the Fordham majority’s analysis appears to be a significant departure from prior ARB rulings regarding the evidence to be considered by an ALJ when determining the "contributing factor element of a SOX claim. The dissent wrote:

    The complainant must prove the "contributory factor" element of her case by a preponderance of the evidence. This standard derives from the word "demonstrate" in the statute. This means that the complainant’s supporting evidence must outweigh the evidence offered to rebut the complainant’s claim of whistleblower retaliation. The Board’s recent discussion of "contributory factor" in Bobreski [v. J. Givoo Consultants, Inc. , ARB No. 13-001, ALJ No. 2008-ERA-003 (ARB Aug. 29, 2014)], discussed this point:

To answer that question, where the complainant presents his case by circumstantial evidence, we repeatedly stated that the ALJ must consider "all" the evidence "as a whole" to determine if the protected activity did or did not "contribute." By "all" of the evidence, we mean all the evidence that is relevant to the question of causation. This requires collecting the complainant’s evidence on causation, assessing the weight of each piece, and then determining its collective weight. The same must be done with all of the employer’s evidence offered to rebut the complainant’s claim of contributory factor. For the complainant to prove contributory factor before the ALJ, all of his circumstantial evidence weighed together against the defendant’s countervailing evidence must not only permit the conclusion, but also convince the ALJ, that his protected activity did in fact contribute to the unfavorable personnel action. Because contributory factor permits unlawful retaliatory reasons to co-exist with lawful reasons, a complainant does not need to prove that lawful reasons were pretext.

After the parties present all of their evidence supporting their versions of the events, then the ALJ must decide which version to believe.

Fordham, supra , USDOL/OALJ Reporter at 45-46) (footnotes omitted). The majority found, however, that the Bobreski decision (and similar decisions) were "inconclusive" on the point. Id . at 21, n.35.

SPILT ARB PANEL HOLDS THAT ALJ ERRS BY NOT CONSIDERING SOX CLAIM IN TERMS OF PRIMA FACIE CASE

In Fordham v. Fannie Mae , ARB No. 12-061, ALJ No. 2010-SOX-51 (ARB Oct. 9, 2014), a split panel of the ARB indicated that an ALJ errs in not analyzing the case in terms of a prima face case. The ARB panel indicated that the ALJ's error was understandable becuase the ARB had been inconsistent in speaking about the showing required at the investigatory and the adjudicatory stages of a SOX case. The panel, quoting Bechtel v. Administrative Review Board, USDOL , 710 F.3d 443 (2d Cir. 2013), indicated that a prima facie case is merely a term referring to the four elements of a whistleblower complaint, and that "'[T]he same basic four-part framework of the complainant's prima facie case applies not only when deciding whether the allegations are legally sufficient, see 29 C.F.R. § 1980.104(e)(2), but also when an ALJ considers whether the complainant has satisfied his or her evidentiary burden under 49 U.S.C.A. § 42121(b)(2)(B)(iii).'''

The ARB panel made a distinction between a showing sufficient to raise a prima facie inference at the investigatory stage, and the elements of a prima facie case at the adjudicatory stage. The Fordham panel stated: "at the evidentiary stage the complainant is required to prove the four prima facie elements by a preponderance of the evidence….” Id ., USDOL/OALJ Reporter at 19. See also Id. at 17 (ALJ’s failure to analyze the evidence in terms of a prima facie case may be due, at least in part, to the ARB’s confusing and inconsistent use of terms); Id . at 20 ("…for a complainant to prove at hearing before an ALJ a prima facie case of retaliation through circumstantial evidence, that evidence must establish by a preponderance of the evidence that the protected activity was a contributing factor in the adverse action.).

[Editor's Notes: In earlier statements from the ARB, it was indicated that an ALJ errs analytically when considering whether a complainant made out a prima facie case following an evidentiary hearing on the merits – the question at that stage only being whether the complainant met his or her burden of proof by a preponderance of the evidence. See, e.g, Henrich v. Ecolab, Inc. , ARB No. 05-030, ALJ No. 2004-SOX-51 (ARB June 29, 2006), slip op. at 16 ("Merely presenting a prima facie case does not entitle a complainant to prevail, but merely forces a respondent to articulate its reason or reasons for an unfavorable personnel action. Once a respondent has done so, and a full hearing has been held, the prima facie case analysis is no longer relevant.”); Clemmons v. Ameristar Airways, Inc. , ARB Nos. 05-048, 05-096, ALJ No. 2004-AIR-11 (ARB June 29, 2007) (ALJ erred in analytical approach by considering whether the complainant proved a prima facie case by a preponderance of the evidence; rather, once a case has proceeded to hearing, a complainant's burden is to prove by a preponderance of evidence ("demonstrate") that the protected activity was a contributing factor in the alleged adverse action); Adornetto v. Perry Nuclear Power Plant , 1997-ERA-16 (ARB Mar. 31, 1999) (once a case has been tried fully on the merits, it no longer serves any analytical purpose to address and resolve the question of whether the complainant presented a prima facie case. Instead, the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability).

The Fordham decision was primarily about what evidence should be weighed in determining whether a complainant had established "contributing cause" by a preponderance of the evidence. In Powers v. Union Pacific Railroad Co. , ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Oct. 17, 2014), the ARB provided notice that it will review, en banc, the "contributory factor" analysis addressed in Fordham .]

[STAA Digest IX B 2 b iv]
DEDUCTION FROM BACK PAY AWARD BASED ON HOURS WORKED BY COMPLAINANT WITH SUBSEQUENT EMPLOYER THAT WERE LONGER THAN THE COMPLAINANT WOULD HAVE WORKED FOR THE RESPONDENT HAD IT NOT FIRED THE COMPLAINANT; SPLIT OPINION ON WHETHER IT MAKES A DIFFERENCE WHETHER THE SUBSEQUENT WORK WAS PAID BY THE HOUR OR BY VIRTUE OF A SALARY

In Abdur-Rahman v. DeKalb County , ARB Nos. 12-064, -067, ALJ Nos. 2006-WPC-2 and 3 (ARB Oct. 9, 2014), the Complainants' challenged the ALJ's back pay award, arguing that pursuant to the ARB's decision in Moder v. Village of Jackson, Wis. , ARB Nos. 01-095, 02-039; ALJ No. 2000-WPC-5, slip op. at 9 (ARB June 30, 2003), the ALJ should have deducted from his calculation of interim earnings a percentage of their actual earnings for additional hours worked for subsequent employers compared to the hours they would have worked for the Respondent had it not fired them. The ALJ had concluded that under Moder , and in light of the ARB decision in Hobby v. Georgia Power Co. , ARB Nos. 98-166, 98-169; ALJ No. 1990-ERA-30 (ARB Feb. 9, 2001), aff’d sub nom. Georgia Power Co. v. United States Dep’t of Labor , 52 Fed. Appx. 490 (table) (11th Cir. 2002), only where an employee is paid by the hour and works overtime can that overtime pay be ignored and not counted in the calculation of what a complainant earned with subsequent employers.

In the lead opinion of a split decision, Chief Judge Igasaki determined that the Complainants had not presented any records to support a different amount of earnings from subsequent employers for purposes of comparison, and because of this failure of proof, it was not necessary to rule on the application of Moder to the instant case. Judge Brown concurred in the affirmance of the ALJ's order for the reasons set forth in the ALJ's order. Judge Corchado wrote a concurring and dissenting opinion to make the point that "note that the ARB’s holdings in Moder and Hobby do not change the overarching principle that victims of whistleblower retaliation must be made whole and not penalized for working more hours to earn the same pay they earned before suffering discrimination." USDOL/OALJ Reporter at 10.

[STAA Digest IX B 3 a]
BACK WAGES; FAILURE TO MITIGATE IS NOT ESTABLISHED MERELY BY SHOWING THAT A COMPLAINANT EARNED SUBSTANTIALLY LESS MONEY WITH A SUBSEQUENT EMPLOYER DURING A DISCRETE PERIOD OF TIME

In Abdur-Rahman v. DeKalb County , ARB Nos. 12-064, -067, ALJ Nos. 2006-WPC-2 and 3 (ARB Oct. 9, 2014), the Respondent argued that the ALJ erred in awarding back pay for a year in which one of the Complainants earned substantially less money with a subsequent employer than in other years, on the theory that this decrease was the result of this Complainant's condue or absence from work. The ARB rejected this contention, finding that it was mere supposition, insufficient to meet the Respondent's burden to show failure to mitigate damages.

[STAA Digest IX B 2 b viii]
CALCULATION OF INTEREST ON BACK PAY; WHERE THE RESPONDENT FILED A MOTION FOR RECONSIDERATION CONTENDING THAT THE ALJ'S CALCULATION OF INTEREST HAD BEEN IN ERROR, AND COMPLAINANTS AGREED WITH THAT ASSESSMENT, AND THE ALJ GRANTED THE MOTION BASED ON THE PARTIES AGREEMENT (DESPITE RESERVATIONS ABOUT WHETHER THERE ACTUALLY HAD BEEN AN ERROR), THE ARB UPHELD THAT ALJ'S GRANT OF THE MOTION DESPITE COMPLAINANTS LATER MOTION TO AGAIN RECONSIDER THE BACK PAY INTEREST CALCULATION

In Abdur-Rahman v. DeKalb County , ARB Nos. 12-064, -067, ALJ Nos. 2006-WPC-2 and 3 (ARB Oct. 9, 2014), the Respondent sought reconsideration of the ALJ's damages decision arguing that the ALJ had miscalculated the interest due by using annual rates rather than quarterly rates. The Complainants responded and agreed with the Respondent. The ALJ granted reconsideration and adjusted the interest award given the agreement of the parties, but observed that the original calculation may have been correct under ARB precedent. The Complainants then asked for reconsideration arguing that counsel for the parties made a mutual mistake concerning the interest calculation. Respondent's counsel responded that it had not made a mistake and continued to believe that the ALJ's original calculation was in error. The ALJ declined to reconsider a second time. On appeal, the Complainant argued that the ALJ's original calculation was correct and urged the ARB to reinstate it notwithstanding its error in agreeing with the Respondent's motion for reconsideration. The Respondent agreed that the Complainants were due interest compounded quarterly, but disagreed with the manner of calculation proffered by the Complainants. The ARB affirmed the ALJ's decision to grant the Respondent's motion for reconsideration, finding that since the parties had agreed, there was no dispute for the ALJ to settle. The ARB noted that the parties had been represented by counsel. The ARB declined toe rule on the substantive merits of the parties' agreement.

[STAA Digest II E 8]
DISCRETION AFFORDED TO ALJ IN DETERMINING WHETHER TO GRANT LEAVE TO REOPEN THE RECORD ON REMAND

In Abdur-Rahman v. DeKalb County , ARB Nos. 12-064, -067, ALJ Nos. 2006-WPC-2 and 3 (ARB Oct. 9, 2014), the ARB had remanded to the ALJ for a decision on damages. On appeal of the ALJ's decision on remand, the Complainants argued that the ALJ erred in denying their request to reopen the record for the limited purpose of adducing evidence relevant to the four years between the March 2007 hearing and the ALJ’s 2012 remedies determination, pertinent to compensatory damages for emotional distress and medical expenses. The ALJ had noted that the Complainants' medical conditions had pre-existed their discharge and there was no allegation of exacerbation but only an argument that inability to seek proper treatment due to lack of, or inadequate, health insurance. The ALJ had allowed the post-hearing submission of expenses for medical conditions of record. The ARB determined: "Granting leave to reopen the record is committed to the ALJ’s sound discretion. Dalton v. Copart, Inc. , ARB Nos. 04-027, -138; ALJ No. 1999-STA-046 (ARB June 30, 2005). The ALJ’s decision to limit the reopening of the record was not an abuse of discretion, and thus we affirm it." USDOL/OALJ Reporter at 7.