USDOL/OALJ Reporter: ARB Decision Caselist - November 2015

DOL proceedings dismissed because Complainant elected to proceed de novo in federal district court.

ADVERSE ACTION; ANALYSIS FOUND IN WILIAMS V. AMERICAN AIRLINES APPLIES TO FRSA CLAIMS; THUS ADVERSE ACTION REFERS TO UNFAVORABLE EMPLOYMENT ACTIONS THAT ARE MORE THAN TRIVIAL

ADVERSE ACTIOM; REFUSAL TO PAY MEDICAL BILLS BASED ON RECLASSIFICATION OF COMPLAINANT’S REPORT OF INJURY FROM “WORK-RELATED” TO “NON-WORK-RELATED” IS ADVERSE ACTION

ADVERSE ACTION: LOWERING OF MIDTERM RATING FROM “COMPETENT” TO FINAL ANNUAL RATING OF “NEEDS DEVELOPMENT,” REGARDLESS OF IMPACT, IS SIGNIFICANT ENOUGH TO CONSTITUTE AN ADVERSE ACTION

In Fricka v. National Railroad Passenger Corp. (AMTRAK) , ARB No. 14-047, ALJ No. 2013-FRS-35 (ARB Nov. 24, 2015), the Complainant filed a FRSA retaliation complaint alleging retaliation for his reporting of a work-related injuries. The Complainant incurred the injuries during his motorcycle ride to a worksite. His supervisor knew that the Complainant was going to ride his motorcycle, and had informed the Complainant before he took the trip that Respondent would not pay mileage expenses. The supervisor, however, had not addressed the issue of reimbursement for travel time. The Complainant reported the accident to the Respondent as a work-related injury. The Respondent, however, classified the injury as not work related, and therefore did not pay medical expenses.

The ALJ found that the injury was work related, and on appeal, the ARB found substantial evidence to support that finding. The central issue on appeal was whether the Respondent’s refusal to pay the Complainant’s medical bills, and the alleged lowering of the Complainant’s 2011 and 2012 performance appraisals were unfavorable personnel actions under FRSA.

Refusal to pay medical bills � misclassification of injury as not work-related found to constitute adverse action as a matter of law

The ALJ concluded that the Respondent’s classification of the Complainant’s injury as not work related was not an unfavorable personnel action because this action was not one which “would dissuade a reasonable employee from reporting an injury as ‘work-related,’” citing Menendez v. Halliburton, Inc. , ARB No. 09-002, -003; ALJ No. 2007-SOX-5, slip op. at 20 (ARB Sept. 13, 2011). The ARB stated that the Menendez test was not exclusive and not determinative in this case. Reviewing the statutory language, the ARB concluded that the definition of adverse personnel action contained in Williams v. American Airlines, Inc. , ARB No. 09-018, ALJ No. 2007-AIR-4 (ARB Dec. 29, 2010), applies to FRSA claims. In Williams , the Board held that “‘adverse actions’ refers to unfavorable employment actions that are more than trivial, either as a single event or in combination with other deliberate employer actions alleged.” Williams, ARB No. 09-018, slip op. at 7. The ARB held that under that definition, the Respondent discriminated against the Complainant when it misclassified his injury as non-work related -- that, as a matter of law, the reclassification was unfavorable and more than trivial, it having led to the Respondent not paying the Complainant’s medical bills of $297,797.21.

2011 performance appraisal � lowering of rating found significant enough in itself to constitute adverse action as a matter of law

The Complainant’s 2011 mid-year performance appraisal had been scored as “Competent.” The annual review, which included the period of the accident and a three month recovery period, and was rendered only three weeks after the Complainant returned to work was scored as “Needs Improvement.” No employees were offered performance bonuses in the 2011 performance review period. The ALJ concluded that the 2011 performance rating was not an adverse personnel action because there was no evidence of any material impact on the Complainant’s employment,” and because the Complainant did not prove that he would have received a bonus.

The ARB disagreed because, as it had explained earlier in the decision, a tangible or “material impact” on an employee’s terms or conditions of employment is not required given the very broad statutory language prohibiting discrimination “in any [] way.” The ARB held: “[A] performance rating drop of this magnitude from “competent” to “needs development” is more than trivial, and is adverse action as a matter of law. Whether [the Complainant] would have gotten a bonus is not determinative because the lowering of the rating is significant of itself and need not effect a tangible or material impact on his salary to be considered adverse.” USDOL/OALJ Reporter at 9.

2012 performance appraisal � need for further fact finding

The ALJ concluded that the Complainant “failed to prove that he sustained an unfavorable personnel action regarding his 2012 performance review because the rating scale changed from 1-4 to 1-3, no one got higher than a 2 that year, and [the Complainant] had improved that year (to get a score of ‘2’ met goals as opposed to the prior year’s 1.43 ‘needs development.’).” Id. The ARB found that, in view of its explanation of the application of the Williams test for analyzing adverse action in FRSA cases, there were insufficient fact findings about the 2012 performance review to make a determination, and therefore directed the ALJ to revisit the question on remand.

Concurring opinion

One member of the Board filed a concurring opinion. This member agreed with the ALJ that “work-related” under the FRSA includes the Complainant’s injuries because “he was driving to another work duty location at the direction of the employer.” The member stated that the FRSA and its implementing regulations provided ample guidance for analysis of whether an unfavorable employment action occurred, and it was unnecessary to, as the majority had done, look to or discuss the law under Title VII. Finally, this member pointed out that, on remand, the ALJ would have to address whether the Respondent believed that the injury was non-work related, and if so, how such a belief pays into the question of contributing factor. This member pointed out that the question was specifically whether the reporting of work-related injury was a reason for the refusal to pay the Complainant’s medical bills.

CAUSATION: CONCURRENCE STATES ISSUES THAT ALJ MUST ADDRESS ON REMAND: (1) WHETHER RESPONDENT TRULY BELIEVED INJURY WAS NOT WORK-RELATED; AND; IF SO (2) GIVEN THAT REFUSAL BY RESPONDENT TO PAY MEDICAL BILLS COULD ONLY HAVE OCCURRED BECAUSE OF COMPLAINANT’S REPORTING, COULD SUCH GOOD FAITH BELIEF HAVE BEEN THE SOLE CAUSE OF SUCH REFUSAL?

In Fricka v. National Railroad Passenger Corp. (AMTRAK) , ARB No. 14-047, ALJ No. 2013-FRS-35 (ARB Nov. 24, 2015), the Complainant filed a FRSA retaliation complaint alleging retaliation for his reporting of a work-related injuries resulting from a motorcycle accident during the Complainant ride to a distant worksite. The Respondent had concluded that the accident was not work related, and refused to pay the Complainant’s medical bills. The ALJ had found that the Complainant had engaged in protected activity and that the injury was work related, but that the Complainant had not suffered an adverse employment action under the definition of adverse action found in Menendez v. Halliburton, Inc. , ARB No. 09-002, -003; ALJ No. 2007-SOX-5, slip op. at 20 (ARB Sept. 13, 2011). The ARB, however, concluded that the definition of adverse personnel action contained in Williams v. American Airlines, Inc. , ARB No. 09-018, ALJ No. 2007-AIR-4 (ARB Dec. 29, 2010), applies to FRSA claims, and remanded for further proceedings before the ALJ.

One member of the Board filed a concurring opinion pointing out that, on remand, the ALJ would have to address whether the Respondent believed that the injury was non-work related, and if so, how such a belief pays into the question of contributing factor. This member pointed out that the question was specifically whether the reporting of work-related injury was a reason for the refusal to pay the Complainant’s medical bills. The member noted: “Stated differently, despite the fact that Amtrak’s decision for medical benefits could only have occurred because of Fricka’s reporting, can the ALJ find that a good faith belief that the injury was not work related was the sole cause of the refusal to pay medical benefits?”

In Kleinman v. CBS Companies, Inc. , ARB No. 15-015, 2014-SOX-22 (ARB Nov. 24, 2015), the ARB affirmed the ALJ’s summary findings dismissing the Complainant’s allegations of SOX violations as untimely.

[STAA Digest V B 2 a i]
REFUSAL TO DRIVE WHILE EXPERIENCING FLU-LIKE SYMPTOMS

In Kirk v. Rooney Trucking, Inc. , ARB No. 14-035, ALJ No. 2013-STA-42 (ARB Nov. 18, 2015), the ARB found that substantial evidence supported the ALJ’s findings that the Complainant, a truck driver, “engaged in protected activity when he refused to drive while experiencing flu-like symptoms because an actual violation of the fatigue rule would have occurred had he driven and because [the Complainant] had a reasonable apprehension of serious injury to the employee or the public if he drove in his condition. The ALJ further found that [the Complainant’s] protected activity contributed to Rooney Trucking’s decision to terminate [the Complainant’s] employment and that Rooney Trucking failed to prove by clear and convincing evidence that it would have terminated his employment absent protected activity.” USDOL/OALJ Reporter at 3.

DOL proceedings dismissed because Complainant elected to proceed de novo in federal district court.

PRO SE LCA COMPLAINANT�S APPEAL DISMISSED WHERE, DESPITE SEVERAL OPPORTUNITIES AND WARNING, HE FAILED TO PROVIDE PROOF OF SERVICE OF THE RESPONDENT’S COUNSEL

In Administrator, Wage and Hour Div., USDOL v. E-Business International, Inc. , ARB No. 15-082, ALJ No. 2015-LCA-10 (ARB Nov. 12, 2015), the Complainant/Prosecuting Party filed a petition requesting the ARB to review the ALJ’s order denying the Complainant’s motion to reopen the claim. Because the petition failed to show that the Respondent and the ALJ had been served as required by the regulations, the ARB ordered the Complainant to provide proof of service. The Complainant did not receive the ARB’s order, and the ARB issued a second order. In the second order, the ARB informed the Complainant that, because he lived in India, he would only be required to provide proof of service of the Respondent’s counsel. The ARB provided the Respondent’s counsel's address and phone number, and stated that the Complainant could arrange with that counsel for service by email. The ARB warned that failure to provide proof of service on Respondent’s counsel could result in dismissal of the appeal. Thereafter, the Complainant only provided proof of service of the Respondent. The ARB stated that even though the Complainant was pro se, its patience was not inexhaustible. The ARB issued a third order directing the Complainant to provide proof of service on the Respondent’s counsel, and warning that failure to do so would result in dismissal of the appeal. The Complainant failed to respond, and the ARB denied the appeal.