Administrative Review Board - November 2020

Katz v. Underwriter's Laboratories, ARB No. 2021-0006, ALJ No. 2018-SOX-00030 (ARB Nov. 30, 2020) (Order Dismissing Petition for Review)

TIMELINESS OF PETITION FOR REVIEW BY ARB; ARB FINDS LACK OF GROUNDS FOR EQUITABLE TOLLING WHERE COMPLAINANT PRESENTED NO PROOF TO BOLSTER HIS CLAIM THAT HE WAS PREVENTED FROM RECEIVING THE ALJ’S DECISION IN HIS EMAIL IN-BOX, AND WHERE — EVEN ASSUMING HE HAD NOT RECEIVED THE ALJ’S DECISION — HE TOOK NO ACTION FOR SIX DAYS AFTER THE ALJ NOTIFIED HIM OF LACK OF JURISDICTION TO CONSIDER COMPLAINANT’S MOTION TO REOPEN DISCOVERY — THE ALJ IN THAT NOTICE EXPLAINING THAT THE CASE HAD BEEN DISMISSED AND THAT THE ORDER OF DISMISSAL HAD DETAILED THE APPEAL RIGHTS

In Katz v. Underwriter’s Laboratories, ARB No. 2021-0006, ALJ No. 2018-SOX-00030 (ARB Nov. 30, 2020), the ALJ served an Order Dismissing Complaint by email. The Order included a Notice of Appeal Rights. A few days later, Complainant filed a letter asking the ALJ to reopen discovery in the case; the ALJ denied the motion for lack of jurisdiction because the case had already been dismissed; the ALJ noted that the Order had detailed the appeal rights. Six days later, Complainant petitioned the ARB for review of the ALJ’s dismissal Order. By the time Complainant filed the petition, it was untimely. The ARB found that Complainant had not established grounds for equitable tolling. The ARB noted that Complainant alleged that someone prevented the email from reaching him, and that the order was “mysteriously” absent from his email inbox. The ARB, however, noted that Complainant provided no evidence to support this allegation and that the ALJ’s order included a certificate of service. The ARB noted that Respondent had provided proof that the email address used by the ALJ for serving Complainant had been used by Complainant throughout the proceeding. The ARB noted Complainant’s allegation that dismissal of the complaint near the election demonstrated political motivations for the dismissal. The ARB, however, found that Complainant failed to explain whose motivations were involved and how they would affect his claim or his ability to file a timely appeal.

The ARB found that, even assuming Complainant never received the ALJ’s decision, he had not been diligent in pursuing his appellate rights. Even after receiving the ALJ’s notice of lack of jurisdiction, Complainant took no action for six days to file an appeal or inquire about the deadline.

Rothschild v. BNSF Railway Co., ARB No. 2019-0022, ALJ No. 2017-FRS-00003 (ARB Nov. 30, 2020) (Order Reversing and Remanding)

CONTRIBUTING FACTOR CAUSATION; ARB REMANDS WHERE ALJ APPLIED “INEXTRICABLY INTERTWINED” ANALYSIS IN DECISION RENDERED PRIOR TO ARB’S REJECTION OF THAT ANALYSIS IN THORSTENSON; ARB ALSO DIRECTS ALJ TO FOLLOW NINTH CIRCUIT’S ANALYSIS IN FROST

In Rothschild v. BNSF Railway Co., ARB No. 2019-0022, ALJ No. 2017-FRS-00003 (ARB Nov. 30, 2020), the ALJ had found that “Complainant met his burden of demonstrating contributing factor causation because the adverse action and protected activity in the present matter were ‘inextricably intertwined’ because there was no way to explain Respondent’s disciplinary decision without referring to Complainant’s injury report. ” Slip op. at 2 (footnote omitted). The ALJ’s decision, however, had been issued prior to the ARB’s decision in Thorstenson v. BNSF Ry. Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019), in which the ARB rejected the “inextricably intertwined” and “chain of events” theories for creating a presumption of causation. The ARB thus remanded for further proceedings consistent with Thorstenson, and the Ninth Circuit’s analysis in Frost v. BNSF Ry. Co., 914 F.3d, 1189, 1195 (9th Cir. 2019).

Administrator, Wage and Hour Div., USDOL v. CTO/CHF Partnership, ARB No. 2020-0022, ALJ No. 2019-TAE-00010 (ARB Nov. 23, 2020) (Decision and Order)

J-1 VISA HOLDERS DO NOT FALL WITHIN “CORRESPONDING EMPLOYMENT” DEFINITION AT 20 C.F.R. § 501.3(a), AS THAT PROVISION APPLIES ONLY TO U.S. WORKERS

In Administrator, Wage and Hour Div., USDOL v. CTO/CHF Partnership, ARB No. 2020-0022, ALJ No. 2019-TAE-00010 (ARB Nov. 23, 2020), the ARB adopted the ALJ’s Order Granting Motion to Dismiss the Wage and Hour Division Administrator’s determination that Respondent had “failed to pay the Adverse Effect Wage Rate and to provide certain other required benefits, to its J-1 program participants, even though, the Administrator charged, it was required to do so by the ‘corresponding employment’ regulations, see 20 C.F.R. §§ 655.103(b) (‘Definitions’), 655.122 (‘Contents of job offers’).” In the Matter of CTS/CHF Partnership, 2019-TAE-00010, slip op at 5 (ALJ Dec. 9, 2019). The ARB stated:

Upon review of the ALJ’s grant of dismissal, we conclude that it is a well-reasoned decision based on the undisputed facts and the applicable law. The ALJ properly concluded that J-1 visa holders do not fall under the “corresponding employment” definition at 29 C.F.R § 501.3(a) because the definition limits “corresponding employment” only to U.S. workers. As noted by the Respondent, there is also a basic fairness issue raised in this case as the Department failed to provide clear guidance to employers that “corresponding employment” could extend beyond U.S. workers. Thus, the ALJ properly reversed the Administrator’s Determination as to the Respondent’s 24 J-1 program participants.

Administrator, Wage and Hour Div., USDOL v. CTO/CHF Partnership, ARB No. 2020-0022, slip op. at 2 (footnotes omitted).

Johnson v. Michigan Carpet Delivery, ARB No. 2020-0051, ALJ No. 2019-STA-00065 (ARB Nov. 19, 2020) (Order Dismissing Complaint)

The ARB determined that Complainant’s explanations for his failure to file his initial appellate brief or to request an extension of time to do so—while describing difficulties and hardships worthy of sympathy—did not provide good cause to excuse the failure.

Estate of Ayres, ARB Nos. 2018-0006, -0074, ALJ No. 2015-STA-00022 (ARB Nov. 18, 2020) (Decision and Order)

RIGHT TO RECOVER PUNITIVE DAMAGES ABATES UPON DEALTH OF INJURED PARTY

In Estate of Ayres, ARB Nos. 2018-0006, -0074, ALJ No. 2015-STA-00022 (ARB Nov. 18, 2020), the ARB found that substantial evidence supported the ALJ’s conclusion that Respondent violated the STAA. The ARB affirmed the ALJ’s award of back pay and compensatory damages to Complainant’s estate; however, it reversed the ALJ’s award of punitive damages, stating: “Remedial claims such as back pay survive the death of a party. But penal claims, including the right to recover punitive damages, abate upon the death of the injured party.” Slip op. at 11 (footnote omitted).

Wetzel v. M & B Environmental, Inc., ARB No. 2019-0050, ALJ No. 2018-WPC-00001 (ARB Nov. 18, 2020) (Decision and Order)

PROTECTED ACTIVITY UNDER THE FWPCA; COMPLAINANT’S GUILTY PLEA ON PERMIT VIOLATION FOUND NOT TO BAR WHISTLEBLOWER COMPLAINT WHERE RECORD SHOWED THAT RESPONDENT’S PRESIDENT DIRECTIONS TO COMPLAINANT UNDERLIED THE VIOLATION; ALTHOUGH COMPLAINANT MAY HAVE COOPERATED WITH AUTHORITIES ONLY TO OBTAIN A LESSER SENTENCE, COMPLAINANT’S SELF-INTEREST DID NOT CAUSE THE COOPERATION NOT TO BE PROTECTED ACTIVITY

In Wetzel v. M & B Environmental, Inc., ARB No. 2019-0050, ALJ No. 2018-WPC-00001 (ARB Nov. 18, 2020), Complainant managed Respondents’ chicken plant wastewater treatment facility. According to Complainant, in September 2010, he tested a wastewater sample for ammonia, and when it was above the limit, he called Respondent’s president, who instructed him to dump the sample and resample later in the week. Complainant did as instructed. In 2011, Respondent’s chicken facility entered into a consent assessment with the state for civil money penalties based on permit violations. Complainant was fired due to a loss of work, but Respondents’ president later hired Complainant to a company with a different name. From 2011 to 2015, Complainant provided evidence to government officials and testified before a grand jury concerning violations of the Clean Water Act pursuant to a cooperation agreement with the U.S. Attorney. In 2016, Complainant pled guilty to a misdemeanor for negligently violating permit conditions. Respondent fired Complainant two days later, and Complainant filed an FWPCA whistleblower complaint with OSHA. Later in 2016, Respondent’s president, and his company, pled guilty to several permit violations.

The ALJ found that Complainant engaged in protected activity by providing information to federal investigators and testifying before a grand jury. On appeal, Respondents contended that Complainant could not be found to have engaged in protected activity because his guilty plea to violating 33 U.S.C. § 1319(c)(1)(A) barred him from bringing this complaint. The statute at 33 U.S.C. § 1367(d) provides that whistleblower protections are not available to an employee who, “acting without direction from his employer (or his agent) deliberately violates any prohibition of effluent limitation or other limitation under section 1311 or 1312 of this title, standards of performance under section 1316 of this title, effluent standard, prohibition or pretreatment standard under section 1317 of this title, or any other prohibition or limitation established under this chapter.”

The ARB first found that Respondents had not raised this argument before the ALJ, and therefore had waived it. The ARB went on, however, to find that even if the argument had not been waived, it still failed. Respondent’s president acknowledged that he instructed Complainant to resample, but alleged that he had not instructed Complainant to dump the sample, and that it was permissible to sample each day and to average the findings. The ARB found no evidence to support Respondents’ view of the permit, and noted that the permit required that “all instances of non-compliance be reported.” The ARB determined: “Thus, even if the samples were averaged, Mr. Brozena’s instruction to Complainant to resample would still be sufficient to establish a violation. Thus, the ALJ properly found that Section 1367(d) does not apply as Complainant acted at the direction from his employer.” Slip op. at 6.

Respondents also argued that “Complainant did not engage in activity because he did not ‘work positively’ with the government. Rather, Respondents state that Complainant was contacted by the PA DEP and the Environmental Protection Agency and testified because it offered him a lesser sentence.” The ARB rejected this argument. The ARB stated:

The WPC states that testifying in any proceeding is protected activity. Further, a whistleblower’s self-interest is only considered when assessing the credibility of the whistleblower’s testimony. Here, the ALJ found that Complainant’s testimony was credible as he provided a “generally consistent theme,” while the ALJ found that Respondents were less credible. We have reviewed the record and find that substantial evidence supports the ALJ’s credibility determinations. Further, the record demonstrates that Complainant provided substantial assistance to the government in testifying against Respondents as well as on his own conduct in the offense. Thus, we find that substantial evidence supports the ALJ’s finding that Complainant engaged in protected activity.

Id. at 6-7 (footnotes omitted).

MOTIVATING FACTOR CAUSATION; ARB FINDS THAT SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING OF MOTIVATING FACTOR CAUSATION BASED ON TEMPORAL PROXIMTY AND RESPONDENTS’ DISPARATE TREATMENT OF EMPLOYEES WHO TESTIFIED AGAINST THE COMPANY; CLAIM OF NECESSITY TO FIRE COMPLAINANT BECAUSE HIS ACTIONS CAUSED FINANCIAL DAMAGE TO THE COMPANY NOT PERSUASIVE WHERE RESPONDENT’S PRESIDENT DIRECTED THAT CONDUCT

AFFIRMATIVE DEFENSE NOT ESTABLISHED WHERE RESPONDENT’S RATIONALES FOR TERMINATING COMPLAINANT’S EMPLOYMENT LACKED CREDIBILTY; ARB NOT PERSUADED BY RESPONDENT’S ARGUMENT THAT GOVERNMENT COULD NOT HAVE IT BOTH WAYS BY PUNISHING RESPONDENTS BOTH FOR FAILING TO SUPERVISE EMPLOYEES AND THEN FOR TERMINATING SUCH EMPLOYEES, WHERE RESPONDENT’S OWN CONDUCT CREATED CRIMINAL AND CIVIL LIABILTY FOR VIOLATING ENVIRONMENTAL LAWS

The ARB found that substantial evidence supported the ALJ’s finding that protected activity was a motivating factor in Complainant’s termination from employment, based both on temporal proximity, and evidence demonstrating that employees who testified against Respondents were treated more severely for misconduct than employees who did not.

Respondents contended they had to terminate Complainant’s employment because he was no longer certified and was debarred from working on federal government contracts. The ARB, however, noted that Complainant previously worked for one of the Respondents without a certification. The ARB was not persuaded that state law supported Respondents’ contention that Complainant was no longer eligible to obtain a license due to his guilty plea. The ARB noted that Complainant was not debarred from working on federal contracts until over two years after he was fired. The ARB also noted that Respondents had not explained why Complainant could not have worked on nongovernment contracts, which were a high percentage of Respondent’s total business. The ARB found that Respondent’s argument that they had to fire Complainant because his actions damaged their business to the sum of a million dollars’ was not supported by evidence. The ARB also noted that it was Respondent’s president’s directive to Complainant was the source of the action that allegedly damaged the business.

Because Respondent’s rationales for terminating Complaint lacked credibility, the ARB also affirmed the ALJ’s finding that Respondents had not established their affirmative defense. The ARB noted Respondents’ argument that “the government ‘cannot have it both ways’ by punishing them for failing to supervise their employees and then punishing them for terminating Complainant’s employment.” The ARB, however, stated that “the ALJ correctly opined that Respondents’ conduct resulted in criminal as well as civil liability because Respondents violated environmental laws and because Complainant established that engaging in a protected activity was a motivating factor in his termination in violation of WPC’s employee protection.”

Administrator, Wage and Hour Div., USDOL v. Graham and Rollins, Inc., ARB No. 2019-0009, ALJ No. 2018-TNE-00022 (ARB Nov. 16, 2020) (Decision and Order)

LIMITATIONS PERIOD FOR COMMENCEMENT OF H-2B ENFORCEMENT ACTION; FIVE YEAR LIMITATIONS PERIOD OF 28 U.S.C. § 2462 APPLIES

In Administrator, Wage and Hour Div., USDOL v. Graham and Rollins, Inc., ARB No. 2019-0009, ALJ No. 2018-TNE-00022 (ARB Nov. 16, 2020), the WHD Administrator had determined that Employer violated certain H-2B provisions related to Applications for Temporary Employment Certification and I-129 Petitions for a Nonimmigrant Worker filed in 2011 and 2012. The ARB adopted the ALJ’s Decision and Order Granting Employer’s Motion to Dismiss and the ALJ’s Order Denying Administrator’s Motion for Reconsideration. The ALJ determined that the enforcement action was time barred by 28 U.S.C. § 2462 despite the Administrator arguments as to why it should not. Because the Administrator’s determination letter was issued more than five years after the alleged violations occurred and the claims accrued, the ALJ found that that the proceeding had not been timely commenced, and was time barred under § 2462.

Administrator, Wage and Hour Div., USDOL v. Five M’s, LLC, ARB No. 2019-0014, ALJ Nos. 2015-FLS-00010, 00011 (ARB Nov. 13, 2020) (per curiam) (Decision and Order)

ASSESSMENT OF CIVIL MONEY PENALTY (CMP) FOR FLSA VIOLATIONS; EMPLOYING DE NOVO REVIEW, ARB SET CMP LOWER THAN MAXIMUM AMOUNT SOUGHT BY WHD ADMINISTRATOR, BUT HIGHER THAN MITIGATED AMOUNT SET BY ALJ; ALTHOUGH THERE WERE AGGRAVATING FACTORS, ARB FOUND THAT SMALL SIZE OF RESPONDENTS’ BUSINESS, AND RELATIVELY SMALL SIZE OF AMOUNTS OWED TO EACH EMPLOYEE, WERE MITIGATING FACTORS UNDER THE FACTS OF THE CASE

DEFENDANTS REQUEST FOR SANCTIONS BASED ON CONDUCT OF WHD ADMINISTRATOR’S REPRESENTATIVES DURING SETTLEMENT NEGOTIATIONS; CONTRACT DISPUTES ARE OUTSIDE THE ARB’S SCOPE OF AUTHORITY TO ADJUDICATE; EVEN IF ARB HAS SUCH AUTHORITY, DEFENDANTS FAILED TO PROVE THEIR ALLEGATION THAT THE WHD HAD WRONGFULLY CONVERTED A CONDITIONAL TENDER OF A SETTLEMENT PAYMENT INTO A PAYMENT FOR SATISIFICATION OF A PREVIOUS COURT ORDER

In Administrator, Wage and Hour Div., USDOL v. Five M’s, LLC, ARB No. 2019-0014, ALJ Nos. 2015-FLS-00010, 00011 (ARB Nov. 13, 2020) (per curiam), the WHD Administrator assessed a civil money penalty on Respondents for violations of the FLSA’s overtime and minimum wage requirements. After a hearing, the ALJ reduced the CMP. Upon de novo review, the ARB ruled:

We conclude that neither the maximum $1,100 penalty assessed by the Administrator nor the reduced $250 penalty imposed by the ALJ are appropriate based on the facts and circumstances presented in the record. For the reasons that follow, we hold that the Administrator erred by neglecting to consider and account for important mitigating factors analyzed by the ALJ which do warrant reducing the CMP from the statutory maximum. However, we disagree with the weight the ALJ afforded to the mitigating factors. The several aggravating factors present in this case, including the willful and repeated nature of Respondents’ conduct and Respondents’ lack of good faith efforts to comply with the law, necessitate a larger penalty than that which was imposed by the ALJ.

Slip op. at 7-8.

The ARB noted that the record firmly showed that Respondents’ violations were both repeated and willful, and that Respondents had been provided information to assist them in compliance following a 2005 investigation and a 2012 conciliation agreement. The violations impacted a large portion of Respondents’ workforce. Moreover, during the 2014 investigation, Respondents refused to offer even a token commitment to comply with the FLSA. The ARB agreed with the ALJ’s finding that Respondents’ explanations for their conduct had been unreasonable. The ARB, however, found that the record did not support the ALJ’s further finding that the conduct was the product of an honest mistake as to the applicability of the FLSA overtime requirements for commissioned employees. These factors supported a larger penalty than that assessed by the ALJ.

The ARB, however, found that the ALJ reasonably considered critical mitigating factors not considered by the Administrator. Respondents were a small business. Although the small size of a business does not require reduction of a CMP, it is a factor that must be considered, and here the ARB agreed with the ALJ that Respondents’ size warranted a reduction. The ARB also agreed with the ALJ that Respondents’ conduct was mitigated by the relatively small size of the amounts owed by Respondents to each employee (an average of just $414 per employee over a two year period). Balancing the relevant factors, the ARB assessed a CMP of $550 for each of the 35 underpaid employees.

The ARB was not persuaded by Respondents’ argument that the WHD Administrator should be sanctioned for its conduct in settlement negotiations, specifically allegedly treating a check submitted by Respondents as partial satisfaction of a court judgment, whereas Respondents contended that the check was a conditional settlement offer constituting the first payment on an installment plan. The ARB found that this was a contract dispute beyond its scope of authority to adjudicate. The ARB also found that, assuming it had the power to resolve the issues raised by Respondents, Respondents had not presented any evidence to support the contention that the check was delivered as part of a settlement offer.

Colley v. Union Pacific Railroad Co., ARB No. 2018-0063, ALJ No. 2017-FRS-00071 (ARB Nov. 6, 2020) (Order Reversing and Remanding)

CONTRIBUTING FACTOR CAUSATION IN FRSA CASE; ARB REMANDS CASE ARISING IN EIGHTH CIRCUIT FOR FURTHER PROCEEDINGS IN LIGHT OF ARB’S REJECTION OF “INEXTRICABLY INTERTWINED” ANALYSIS IN THORSTENSON, AND THE EIGHTH CIRCUIT’S REQUIREMENT OF PROOF OF INTENTIONAL RETALIATION

AFFIRMATIVE DEFENSE; CONCURRING OPINION VIEWS SPEEGLE FACTORS AS AN ANALYTICAL AID, AND NOT A SET OF BRIGHT-LINE RULES; ADDRESSES HOW TO ANALYSE VIOLATIONS OF COMPANY POLICY IN REGARD TO AFFIRMATIVE DEFENSE

In Colley v. Union Pacific Railroad Co., ARB No. 2018-0063, ALJ No. 2017-FRS-00071 (ARB Nov. 6, 2020), the ALJ found that Complainant established contributing factor causation under the FRSA retaliation provision. In making this finding, the ALJ applied the “inextricably intertwined” analysis.

On appeal, the ARB noted that after the ALJ had issued her Decision in Colley, the ARB held in Thorstenson v. BNSF Ry. Corp., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Nov. 25, 2019), that ALJs should not apply the “inextricably intertwined” or “chain-of-events” analysis to create a presumption of causation. The ARB also noted that the Colley case arose in the Eighth Circuit, and that the U.S. Court of Appeals for the Eighth Circuit had held that an employee must prove intentional retaliation by the employer. See Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014); BNSF Ry. Co. v. U.S. Dep’t of Labor Admin. Review Bd., 867 F.3d 942, 946 (8th Cir. 2017); Dakota, Minn. & E. R.R. Corp. v. U.S. Dep’t of Labor Admin. Review Bd., 948 F.3d 940, 947 (8th Cir. 2020) (unequivocally rejecting the chain-of-events and inextricably intertwined theories of causation). The ARB thus remanded the case to the ALJ for further proceedings.

One member of the ARB filed a concurring opinion to address the employer’s affirmative defense. The concurring member noted the ARB’s decision in Speegle v. Stone & Webster Constr., Inc., ARB No. 2013-0074, ALJ No. 2005-ERA-00006, slip op. at 11-12 (ARB Apr. 25, 2014), which listed factors that should be considered in assessing the “clear and convincing” evidence defense. The concurring member indicated that the Speegle factors should be viewed as assisting a fact-finder and not as a bright-line rule for all cases. The member stated: “A fact-finder may simply apply the statutory and regulatory text without additional nonstatutory and nonregulatory factors. We stated in Clem v. CSC Computer Sci. Corp. that ‘these [Speegle] factors are not expressly prescribed in the statutory text and such a rule was not necessary to resolve the matter at issue . . . . A fact-finder must holistically consider any and all relevant, admissible evidence when determining whether an employer would have taken the same adverse action against an employee in the absence of any protected activity.’” Slip op. at 6. The concurring member also discussed how a complainant’s violations of company policy may be analyzed as an affirmative defense, noting that an reasonable and honest belief of such a violation can satisfy the burden, but that it is not enough to merely show that the conduct violated a company policy or constituted a legitimate business reason for the adverse personnel action.

Johnson v. BNSF Railway Co., ARB No. 2021-0004, ALJ No. 2016-FRS-00029 (ARB Nov. 6, 2020) (Order Granting Stipulated Motion to Withdraw Appeal)

The ARB granted the parties’ Stipulated Motion to Withdraw Petition for Review.

Brucker v. BNSF Railway Co., ARB Nos. 2018-0067, -0068, ALJ No. 2013-FRS-00070 (ARB Nov. 5, 2020) (per curiam) (Decision and Order)

CONTRIBUTORY FACTOR CAUSATION; ARB AFFIRMED ALJ’S FINDING THAT COMPLAINANT FAILED TO CARRY HIS BURDEN OF PROOF UNDER THE FACTS OF THE CASE; FAILURE TO DISCLOSE CRIMINAL CONVICTION ON EMPLOYMENT APPLICATION; SERIOUS WORK VIOLATIONS; RESPONDENT’S LENIENCY; LACK OF TEMPORAL PROXIMITY

In Brucker v. BNSF Railway Co., ARB Nos. 2018-0067, -0068, ALJ No. 2013-FRS-00070 (ARB Nov. 5, 2020) (per curiam), the ARB affirmed the ALJ’s finding that Complainant failed to prove by a preponderance of the evidence that his alleged protected activity under the FRSA was a contributing factor to Respondent’s decision to terminate Complainant’s employment. In a very fact-specific decision, the ARB found that several factors supported the ALJ’s findings.

First, Complainant had admitted that he lied on his employment application when he checked “no” when asked if he had ever been convicted of a crime other than traffic violations. Complainant had previously plead guilty to misdemeanor assault, and served a suspended sentence. Although Complainant argued that the ALJ should have credited his testimony that his assistant supervisor at the time told him that the railroad was only interested in felony convictions, the ARB pointed out that Complainant had not informed HR of the conviction, and that other witnesses familiar with Respondent’s hiring practices testified that Complainant’s claim that the assistant supervisor told him to check the “no” box was not plausible.

Second, Complainant had committed a second serious violation within the applicable review period, which under Respondent’s employee performance accountability policy could result in dismissal. The ARB noted that the ALJ found that Respondent administered the discipline in accordance with its policies and the collective bargaining agreement. The ARB noted the ALJ’s conclusion that these violations, taken together with Complainant’s dishonestly on the application, were highly probative to Respondent’s decision to terminate the employment.

Third, the decision to terminate Complainant’s employment was made by multiple individuals both inside and outside Complainant’s supervisory chain, the department in which he worked, and the locality.

Fourth, Complainant’s protected activity occurred two years before the termination decision. The ALJ found that Complainant’s supervisors had the opportunity to terminate Complainant’s employment earlier for violations in 2010 and 2011, but had exercised leniency. The ARB agreed with the ALJ that such leniency weighed against finding contributory factor causation between Complainant’s 2009 alleged protected activity and the termination in 2012.