USDOL/OALJ Reporter: ARB Decision Caselist -- December 2009

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Summary :

The ARB denied the Complainant's motion for reconsideration where the Complainant did not argue that there had been a change in the law or that new facts had arisen since the ARB issued its Final Decision and Order, he did not not indicate that the ARB did not consider material facts prior to issuing its ruling, and he only repeated arguments previously considered and rejected.

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Summary :

Approval of settlement agreement.

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Summary :

Approval of settlement agreement.

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Summary :

Approval of settlement agreement.

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Summary :

[STAA Digest V B 1 a]
PROTECTED ACTIVITY; COMPLAINT CLAUSE; COMPLAINT ABOUT OPERATING A TRUCK WITH A FAULTY QUALCOMM

In Fabre v. Werner Enterprises, Inc. , ARB No. 09-026, ALJ No. 2008-STA-10 (ARB Dec. 22, 2009), the ARB found that substantial evidence supported the ALJ's finding that complaints about a malfunctioning Qualcomm were not protected activity under the complaint clause of the STAA whistleblower provision, 49 U.S.C.A. § 31105(a)(1)(A). A Qualcomm is a satellite communication device used for recording driver hours. The Board stated that "[o]perating a truck with a faulty Qualcomm is not a violation of a motor vehicle regulation unless the employee fails to use a paper back-up. The hours of service regulation in effect at the time the alleged violation occurred provided a choice of using the traditional paper grid form to record hours manually or using an automatic on-board recording device. Therefore, operating a truck with a faulty Qualcomm device is not in itself a violation of the regulation." USDOL/OALJ Reporter at 6 (footnote omitted).

[STAA Whistleblower Digest V B 2]
PROTECTED ACTIVITY; ACTUAL VIOLATION OPERATING A TRUCK WITH A FAULTY QUALCOMM

In Fabre v. Werner Enterprises, Inc. , ARB No. 09-026, ALJ No. 2008-STA-10 (ARB Dec. 22, 2009), the ARB found that the Complainant did not engage in protected activity under the actual violation element of the STAA whistleblower provision based on his notification to his Employer that his Qualcomm device had failed, where the Employer's driver's handbook, in compliance with the applicable DOT regulation, required that a blank logbook be kept in every truck for use by the driver in the event of a Qualcomm failure. A Qualcomm is a satellite communication device used for recording driver hours. Since the Complainant was aware of the handbook and the instruction to use a paper log, the ARB found that he could not have reasonably believed that the faulty Qualcomm device violated safety regulations. The ARB agreed with the ALJ that the Complainant's "notification to [the Respondent] that his Qualcomm device had failed was not a notification of a violation, but rather was an integral part of compliance with the regulations." USDOL/OALJ Reporter at 7.

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Summary :

Order closing case where Administrator declined to file a petition for review after being granted an extension of time to consider whether to file such a petition.

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Summary :

[STAA Digest IV A 2 d]
CAUSATION; MANAGER'S ERRONEOUS BELIEF THAT COMPLAINANT HAD NOT MADE A CREDIBLE SAFETY COMPLAINT

In Elbert v. True Value Co. , ARB No. 07-031, ALJ No. 2005-STA-36 (ARB Dec. 18, 2009), the ARB found that substantial evidence supported the ALJ's finding that the Complainant failed to prove by a preponderance of the evidence that his employment was terminated because he had complained that the trailer brakes were not working. When the Complainant was terminated by the Respondent's manager, the manager did not know that the brakes had not been working, but had been told that a mechanic had found nothing wrong with the brakes, and believed that the Complainant had fabricated the brake complaint as an excuse to confront a co-worker with whom he had prior encounters. The ARB rejected the Complainant's argument that an employer could always defeat a STAA claim merely by claiming that it did not believe that its employee had engaged in protected activity, because substantial evidence supported a finding that the manager had not known that the brakes were a problem when he fired the Complainant. Moreover, when the Complainant challenged the manager's statement that there had been nothing wrong with the brakes, the manager made it clear that he was firing the Complainant only because of insubordination and "failure to operate in a team environment." The record showed that the Complainant had a history of misconduct similar to way he had acted on the date of the trailer brake incident, that he had been given previous warnings about his conduct, and that other drivers had never been disciplined for reporting similar safety problems.

[STAA Digest IV A 2 c]
LEEWAY DOCTRINE CANNOT BE INVOKED WHERE SUBSTANTIAL EVIDENCE SHOWS THAT THE COMPLAINANT WAS DISRUPTING BUSINESS

In Elbert v. True Value Co. , ARB No. 07-031, ALJ No. 2005-STA-36 (ARB Dec. 18, 2009), although declining to formally consider the argument because it had not been raised before the ALJ, the ARB stated that the "leeway doctrine" -- which requires a balancing of leeway for implusive behavior with an employer's right to maintain order and respect in its business -- could not have been invoked in the instant case because there was substantial evidence that the Complainant was disrupting business on the dates at issue (upsetting a traffic clerk who was nearly brought to tears, having to be asked to leave the clerk's office three or four times, and later returning to the clerk's office on another issue, causing another confrontation).

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Summary :

[STAA Digest IV B 2 e]
LEGITIMATE, NON-DISCRIMINATORY REASONS FOR DISCHARGE; EXCESSIVE ABSENCES AND TARDINESS

In Peters v. Renner Trucking and Excavating , ARB No. 08-117, ALJ No. 2008-STA-30 (ARB Dec. 18, 2009), the ALJ recommended dismissal of the Complainant's STAA whistleblower complaint on the ground that the Respondent discharged the Complainant for two legitimate, non-discriminatory reasons: "attendance problems and a falsified haul report after an unauthorized detour to the post office." The ARB, affirming the ALJ's denial of the complaint, found that substantial evidence supported the ALJ's finding that the Complainant was late and absent a number of times during his six months of employment with the Respondent, and had been given "a �final warning notice' on December 26, 2006," after which he was again late once and absent twice. The ARB also found it notable that during a state employment compensation hearing, the Complainant did not mention that he thought that he was discharged for his alleged protected activity rather than for absences and tardiness.

[STAA Digest XII]
ISSUE PRECLUSION; DEFERENCE NOT AFFORDED TO STATE UNEMPLOYMENT PROCEEDING WHERE STATE LAW BARRED SUCH, AND WHERE THERE WAS NO EVIDENCE WHETHER THE STATE PROCEEDINGS ADDRESSED THE STAA CAUSATION ELEMENT AT ISSUE

In Peters v. Renner Trucking and Excavating , ARB No. 08-117, ALJ No. 2008-STA-30 (ARB Dec. 18, 2009), the Respondent argued that issue preclusion prevented the Complainant from asserting that he was terminated for complaints about brakes in his federal STAA whistleblower proceeding because he did not make that argument during a state unemployment compensation proceeding. The ARB noted that the ALJ found that he could not defer to the state decisions in the unemployment proceedings because the state's law barred using "decisions, findings, conclusions, final orders, and judgments" of its unemployment hearings and appeals "for the purpose of claim preclusion or issue preclusion in any other action or proceeding" except under the state unemployment insurance statute. The ARB also noted that the ALJ also found that he could not defer to those proceedings under 29 C.F.R. § 1978.112(c) because the record did not contain evidence that those proceedings addressed whether the Respondent discharged the Complainant because of his complaints about the brakes and the Respondent's post trip vehicle inspection report forms, which he believed violated federal DOT specifications. Earlier in the decision, however, the ARB had found it notable, in determining whether the Respondent's articulated non-discriminatory reasons for discharging the Complainant were legitimate, that the Complainant had not mentioned that he thought that he was discharged for his alleged protected activity rather than for absences and tardiness during the state employment compensation hearing.

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Summary :

[STAA Digest IV B 2 e]
LEGITIMATE, NONDISCRIMINATORY REASON FOR DISCHARGE; THREAT AGAINST MANAGER

[STAA Digest IV A 2 c]
CAUSATION; CONTRIBUTING CAUSE NOT ESTABLISHED WHERE THREAT MADE BY COMPLAINANT WAS TEMPORALLY PROXIMATE TO FIRING, AND THE RESPONDENT HAD NOT RETALIATED AT TIME OF EARLIER PROTECTED ACTIVITY

In Sacco v. Hamden Logistics, Inc. , ARB No. 09-024, ALJ Nos. 2008-STA-43 and 44 (ARB Dec. 18, 2009), the Complainants were brothers who both worked for the Respondent, and who both engaged in protected activity under the STAA when they complained about hours of service violations. One of the brothers was discharged because, upon learning that his route had been given to another employer, he threatened to kill the terminal manager and that manager's family. The ARB found that substantial evidence supported the ALJ's findings that the Respondent had not retaliated when this Complainant had earlier engaged in protected activity, that the discharge did not occur until the day of the threats, and that the threats severed any causal connection between the discharge and the prior protected activity. The ARB found that the temporal proximity of the threats to the firing and the lack of adverse consequences following the earlier hours of service complaints, provided substantial evidence that protected activity did not contribute the the Respondent's decision to fire this Complainant.

The other brother was also fired. The ARB found substantial evidence supported the ALJ's finding that this Complainant was fired because of his brother's threats and not because of his earlier protected activity. The ALJ had noted that it may not have been fair to fire this Complainant because of his brother's actions, but that the firing did not violate the STAA whistleblower provision.

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Summary :

[STAA Whistleblower Digest X A 1]
SETTLEMENTS; CIRCUMSTANCE THAT COMPLAINANT WAS REPRESENTED BY ABLE COUNSEL AS SUPPORTING FINDING THAT THE AGREEMENT IS "FAIR, ADEQUATE AND REASONABLE"

In Edmisten v. Ray Thomas Petroleum , 2009-STA-36 (ALJ Oct. 30, 2009), the case settled prior to an evidentiary hearing and the parties submitted the settlement agreement to the presiding ALJ for approval. In approving the settlement, the ALJ observed that because he had not heard the case, he had no basis to determine whether the agreement was fair or adequate. The ALJ, however, noting that the agreement did not contain any provisions which are contrary to law or against public policy, and that the Complainant had been represented by very able counsel, found that it was reasonable to presume that the agreement was in the complainant's best interests. The case was transferred to the ARB for issuance of a final order. In Edmisten v. Ray Thomas Petroleum , ARB No. 10-020, ALJ No. 2009-STA-36 (ARB Dec. 16, 2009), the ARB found that the settlement was unopposed under its terms because neither party submitted a brief in response to the ARB 's notice of review. The ARB stated that because the ALJ had not made a finding regarding whether the parties' settlement agreement constitutes a fair, adequate, and reasonable settlement, it would do so. In finding that the settlement was fair, adequate, and reasonable, the ARB wrote:

   The parties acknowledged and agreed that they consulted with attorneys of their own choosing before entering into the Agreement and were given a reasonable period of time within which to consider the Agreement. Additionally, Edmisten's counsel, an experienced litigator under the STAA, represented that the settlement was fair, adequate, and reasonable.

USDOL/OALJ Reporter at 3 (footnote omitted).

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Summary :

Approval of settlement agreement.

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Summary :

Approval of settlement agreement.

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Summary :

TIMELINESS OF PETITION FOR ARB REVIEW; FAILURE OF COMPLAINANT TO CORRECTLY NOTE THE FILING DATE

In Cooley v. Hyannis Air Service , ARB No. 09-126, ALJ No. 2005-AIR-14 (ARB Dec. 10, 2009), the Complainant requested an extension of time to file his petition for review of the ALJ's AIR21 whistleblower decision because his counsel had been suspended from practicing law. The ARB granted the extension, ordering the Complainant to file his petition for review "on or before September 18, 2009," and warning that failure to timely file the petition could result in dismissal of the appeal without further notice. The Complainant did not sign or mail his petition until September 19, 2009, and the Board did not receive it until September 28, 2009. The Board found that the petition was untimely, and ordered the Complainant to show cause why the appeal should not be dismissed. The Complainant's response to the Order to Show Cause was also untimely. Nonetheless, in recognition of the severity of dismissal in these circumstances, the Board considered the untimely response.

The ARB found that it is within its discretion, under the proper circumstances, to accept an untimely-filed petition for review. The Complainant's response to the Order to Show Cause was that he had been in disbelief that he had missed the deadline, and had been operating with the wrong information that "days" meant business days, excluding holidays, and that the postmark was considered the filing date. The ARB found that this argument was irrelevant because the petition for review had been due on a date certain - September 18, 2009 - and not after a specified number of days. The Board found that the Complainant's failure to note the correct deadline did not excuse his failure to exercise due diligence in filing the petition for review, especially given that the Board had granted him an extension to do so, and had warned him of the consequences of failure to timely file the petition.

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Summary :

Approval of settlement agreement.

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