Decisions of the Administrative Review Board
November 2005
Anderson v. Jaro Transportation Services , ARB No. 05-011, ALJ Nos. 2004-STA-2 and 3 (ARB Nov. 30, 2005)
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Title : Final Decision and Order - Link : PDF
- Case type : STAA Whistleblower
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Summary
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BLACKLISTING; COMPLAINANT'S SUBJECTIVE FEELING THAT HE IS BEING BLACKLISTED IS INSUFFICIENT PROOF TO ESTABLISH BLACKLISTING
In Anderson v. Jaro Transportation Services , ARB No. 05-01, ALJ Nos. 2004-STA-2 and 3 (ARB Nov. 30, 2005), the Complainant claimed that after he was fired, a company that had contracted with his employer had provided information to a potential employer that he had been discharged, and he had not been hired as a result. The Complainant, however, did not know what the company had told the potential employer. The ARB held that the Complainant was required to show that a specific act of blacklisting had occurred and that "a whistleblower's subjective feeling that an employer blacklisted him is insufficient to establish blacklisting". USDOL/OALJ Reporter at 6 (footnote omitted). Therefore the ARB denied the Complainant's blacklisting complaint.
CAUSATION; SIX MONTH INTERVAL BETWEEN PROTECED ACTIVITY AND ADVERSE ACTION; INTERVENING EVENTS MAY BREAK INFERENCE OF LINK
In Anderson v. Jaro Transportation Services , ARB No. 05-01, ALJ Nos. 2004-STA-2 and 3 (ARB Nov. 30, 2005), the ARB held that a six month interval between the Complainant's protected activity and his termination from employment was not too long a time period from which to infer that the Respondent was retaliating. In the instant case, after making the protected communication the Complainant failed to make timely deliveries and parked his tractor-trailer off route. The ARB found that these intervening events reasonably could have caused the Respondent to reprimand and terminate the Complainant's employment, and therefore "a logical reason to infer a causal relationship between the protected activity and the adverse action no longer exists." USDOL/OALJ Reporter at 7 (footnote omitted).
Paper, Allied-Industrial Chemical & Energy Workers Int'l Workers Union , ARB No. 04-033 (ARB Nov. 30, 2005)
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Title : Final Decision and Order - Link : PDF
- Case type : Davis-Bacon Act/Service Contract Act Wage Appeal
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Summary
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WAGE DETERMINATION FOR WORKERS ENGAGED IN EXCAVATION AND RECLAMATION WORK ON FEDERAL HAZARDOUS WASTE CLEANUP PROJECT
In Paper, Allied-Industrial Chemical & Energy Workers Int'l Workers Union , ARB No. 04-033 (ARB Nov. 30, 2005) (PACE), the ARB affirmed the decision of the Wage and Hour Division Administrator that workers engaged in excavation and reclamation work on a federal hazardous waste cleanup project should be paid wages according to the Davis-Bacon Act (DBA) rather than the McNamara-O�Hara Service Contract Act (SCA). The ARB found that the Wage-Hour Administrator had reasonably relied on DOL regulations and an interpretative "All Agency Memorandum" in finding that the excavation and reclamation work was covered. The ARB rejected PACE's contention that the contracting agency, the Department of Energy (DOE), had determined that the work was covered under the SCA, and that this determination deserved deference. The ARB noted that it, and its predecessor Wage Appeals Board, had repeatedly held that "when interpreting DBA labor standards questions, the contracting agencies and their officers have no ability to make an authoritative determination. This power is reserved to the Secretary and her designees." USDOL-OALJ Reporter at 7 (citations omitted). Finally, the ARB rejected PACE's argument that the Administrator had no authority to replace the SCA wage rates with DBA rates once the contract for the work had been awarded and the work begun. See 29 C.F.R. § 1.6(f).
Robinson v. Northwest Airlines, Inc. , ARB No. 04-041, ALJ No. 2003-AIR-22 (ARB Nov. 30, 2005)
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Title : Final Decision and Order - Link : PDF
- Case type : AIR21 Whistleblower
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Summary
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CAUSATION; CONTRIBUTING FACTOR; LETTER TO FAA REPORTING SAFETY CONCERN; FAILURE TO SHOW THAT IT WAS THE SUBSTANCE OF THE LETTER RATHER THE MANNER OF DISTRIBUTION OF THE LETTER THAT LED TO THE ADVERSE ACTION
In Robinson v. Northwest Airlines, Inc. , ARB No. 04-041, ALJ No. 2003-AIR-22 (ARB Nov. 30, 2005), the Complainant, a pilot, had written a letter to the FAA complaining that that the Respondent had failed to remove the checked luggage of two passengers who had been detained for currency violations. Later, the Complainant copied five pilots and Osama bin Laden "in absentia" with a "continuation" of the letter. Because of this, and other prior and subsequent events, the Complainant was taken out of service and placed on paid status pending the results of a psychological evaluation. Eventually the Complainant was placed on long term sick leave. The ARB affirmed the ALJ's finding that the Complainant had failed to establish by a preponderance of the evidence that the protected activity of communicating the baggage removal violation to the FAA letter was a contributing factor in the Respondent's adverse actions. The ARB found that substantial evidence supported the ALJ's finding that it was the addendum purporting to copy bin Laden rather than the safety complaint that concerned Respondent's managers. The ARB agreed with the ALJ's finding that, although the Complainant had shown no performance problems, it was his pattern of conduct over time that caused the Respondent to be concerned about his potential conduct in the cockpit once under stress and to refer him for the psychological evaluation.
CAUSATION; SIX MONTH INTERVAL BETWEEN PROTECED ACTIVITY AND ADVERSE ACTION; INTERVENING EVENTS MAY BREAK INFERENCE OF LINK
In Robinson v. Northwest Airlines, Inc. , ARB No. 04-041, ALJ No. 2003-AIR-22 (ARB Nov. 30, 2005), the Complainant argued that the timing of the decision to refer him for a medical examination established a causal connection between this action and his protected activity. The ARB found, however, that events occurring in the six month interval could have independently supported the adverse action. The Board wrote:
While an inference of discrimination may arise when the adverse action closely follows protected activity, temporal proximity is not always dispositive. Thompson v. Houston Lighting & Power Co. , ARB No. 98-101, ALJ Nos. 96-ERA-34, 38, slip op. at 6-7 (Mar. 30, 2001); cf. Svendsen v. Air Methods, Inc. , ARB No. 03-074, ALJ No. 02-AIR-16, slip op. at 8 (Aug. 26, 2004). For example, where the protected activity and the adverse action are separated by an intervening event that independently could have caused the adverse action, there is no longer a logical reason to infer a causal relationship between the activity and the adverse action. Tracanna v. Arctic Slope Inspection Service , ARB No. 98-168, ALJ No. 97-WPC-1, slip op. at 8 (ARB July 31, 2001).
USDOL-OALJ Reporter at 9.
ISSUES ON APPEAL; ARB WILL NOT CONSIDER ISSUES RAISED IN A BRIEF THAT WERE NOT INCLUDED IN THE PETITION FOR REVIEW
In Robinson v. Northwest Airlines, Inc. , ARB No. 04-041, ALJ No. 2003-AIR-22 (ARB Nov. 30, 2005), the ARB declined to consider arguments made by the Respondent in its appellate brief on the issues of subject matter jurisdiction and res judicata where the Respondent had not petitioned for review of those aspects of the ALJ's decision.
TIMELINESS OF PETITION FOR ARB REVIEW; POSTMARK IS CONSIDERED DATE OF FILING
In Robinson v. Northwest Airlines, Inc. , ARB No. 04-041, ALJ No. 2003-AIR-22 (ARB Nov. 30, 2005), the ARB found that under the AIR21 regulation at 29 C.F.R. § 1979.110(a), the Complainant's petition for ARB review was timely where it was postmarked on the 10th business day following the ALJ's decision, even though the ARB did not receive the mailing until 11 days later.
In re Slavin , ARB No. 05-003, ALJ No. 2004-MIS-5 (ARB Nov. 30, 2005)
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Title : Final Decision and Order - Link : PDF
- Case type : Attorney Qualifications
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Summary
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ATTORNEY MISCONDUCT; GIVING RECIPROCAL EFFECT TO SUSPENSION ORDER OF STATE COURT BEFORE WHICH ATTORNEY HELD LAW LICENSE
In re Slavin , ARB No. 05-003, ALJ No. 2004-MIS-5 (ARB Nov. 30, 2005), the ARB affirmed the Chief Administrative Law Judges' order according reciprocal effect to an order of the Supreme Court of Tennessee suspending Edward A. Slavin, Jr. from the privilege of practicing law for two years. The Chief ALJ had evaluated the case under the Selling v. Radford , 243 U.S. 46 (1917) criteria. The ARB had previously also given reciprocal effect to the Tennessee Supreme Court's suspension order under Selling . Reviewing the matter under a de novo standard of review, the ARB found that Mr. Slavin's petition for review had failed address the Sellings factors and had not proffered any error in the Chief ALJ's or ARB's application of these factors to the facts of his case.
Tuggle v. Roadway Express, Inc. , ARB No. 05-017, ALJ No. 2003-STA-8 (ARB Nov. 30, 2005)
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Title : Final Order Approving Settlement and Dismissing Complaint - Link : PDF
- Case type : STAA Whistleblower
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Summary
: STAA settlement
West v. Kasbar, Inc. , ARB No. 04-155, 2004-STA-34 (ARB Nov. 30, 2005)
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Title : Final Decision and Order - Link : PDF
- Case type : STAA Whistleblower
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Summary
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ADVERSE ACTION; A WARNING LETTER WITHOUT TANGIBLE JOB CONSEQUENCES IS NOT ACTIONABLE
In West v. Kasbar, Inc. , ARB No. 04-155, 2004-STA-34 (ARB Nov. 30, 2005), the Complainant alleged that he was issued a second warning letter which could have lead to his discharge. The Complainant, however, did not assert that the written warning resulted in actual job consequences. Consequently, the ARB held that the Complainant had failed to allege the essential element of his STAA claim of an adverse action, and his complaint failed as a matter of law. The ARB rejected the Complainant's argument in favor of an expansive interpretation of the "adverse action" element. The ARB agreed that the STAA was aimed at preventing employer intimidation of employees for exercising their rights, but held that "intimidation does not equate with adverse action. " USDOL/OALJ Reporter at 5. The ARB held that language from Stone & Webster Eng�g Corp. v. Herman , 115 F.3d 1568, 1573 (11th Cir. 1997), stating that an adverse action is "simply something unpleasant, detrimental, even unfortunate" was only a description and not a definition. The ARB also ruled that while economic harm is not required under the STAA cause of action, tangible job consequence is.
Colley v. U.S. Dept. of Energy , ARB Nos. 04-089, 05-071, ALJ Nos. 2004-ERA-18 and 19 (ARB Nov. 15, 2005)
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Title : Final Decision and Order Dismissing Appeals - Link : PDF
- Case type : ERA Whistleblower
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Summary
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INTERLOCUTORY APPEAL
The Complainant filed an interlocutory appeal challenging the Chief ALJ's order refusing to permit the Complainant to be represented by an attorney who had been earlier been suspended from appearing before OALJ. While the interlocutory appeal was pending, the ARB issued an order affirming OALJ's suspension of the attorney. Thus, the ARB issued an order to show cause why the interlocutory appeal in the instant case was not moot. The Complainant's response did not address the mootness issue, and consequently the ARB dismissed the interlocutory appeal.
DISMISSAL FOR CAUSE; FAILURE TO FILE APPELLATE BRIEF
The Complainant failed to file an opening brief and the ARB issued an order to show cause why the appeal should not be dismissed for that failure. The Complainant was subsequently granted three extensions of time. When she eventually responded, she did not address her failure to file an opening brief but merely addressed the merits of the ALJ's decision.
The Board had expressly warned the Complainant that the merits of the case would not be considered until she demonstrated good cause for the failure to file an opening brief. Even taking into consideration the Complainant's pro se status, the Board found that the circumstances required dismissal of the appeal.