USDOL/OALJ Reporter: ARB Decision Caselist - December 2012

[Nuclear & Environmental Digest XII D 12 a]
PROTECTED ACTIVITY; PROTECTION UNDER ENVIRONMENTAL WHISTLELOWER ACTS MAY BEGIN WITH AN EMPLOYEE�S PERSONAL HEALTH CONCERN � FOCUS FOR DETERMINATION OF PROTECTION IS WHETHER THE EMPLOYEE�S ACTIVITY TOUCHED ON THE CONCERNS FOR THE ENVIRONMENT OR PUBLIC HEALTH AND SAFETY THAT ARE THE FOCUS OF THE ENVIRONMENTAL ACT

[Nuclear and Environmental Digest XII C 4]
PROTECTED ACTIVITY; REASONABLE GOOD FAITH BELIEF THAT CONDUCT WAS IN FURTHERANCE OF ENVIRONMENTAL ACTS DOES NOT REQUIRE A COMMUNICATION TO THE RESPONDENT AS LONG AS COMPLAINANT REASONABLY BELIEVED, AT THE TIME HE VOICED HIS COMPLAINT OR RAISED HIS CONCERNS, THAT A THREAT TO THE ENVIRONMENT OR TO THE PUBLIC EXISTED

[Nuclear & Environmental Digest XII D 1 b]
PROTECTED ACTIVITY; POTENTIAL FOR COVERAGE UNDER BOTH SECTION 11(c) OF THE OSH ACT AND THE ENVIRONMENTAL ACTS

[Nuclear and Environmental Digest XII C 4]
PROTECTED ACTIVITY; SUMMARY DECISION; REASONABLE GOOD FAITH BELIEF THAT CONDUCT WAS IN FURTHERANCE OF ENVIRONMENTAL ACTS; MATERIAL ISSUE OF FACT ON BELIEF MAY BE ESTABLISHED IN AFFIDAVIT RESPONDING TO MOTION FOR SUMMARY DECISION

In Williams v. Dallas Independent School District , ARB No. 12-024, ALJ No. 2008-TSC-1 (ARB Dec. 28, 2012), the Complainant alleged that his former employer, the Dallas Independent School District (DISD), retaliated against him in violation of the CERCLA and the TSCA. The ALJ granted DISD's motion for summary decision on the ground that the Complainant had not raised a genuine issue of material fact showing that he had engaged in protected activity under CERCLA and TSCA, because none of the claimed protected activity expressed concern for the environment or the public health and safety. The ARB found that the ALJ had construed the meaning of protected activity too narrowly, and remanded.

Based on a view of the record in the light most favorable to the Complainant as the non-moving party, the ARB found that the Complainant was to be relocated to a position as a Projects Director at a service center on a property that DISD had purchased from Procter & Gamble Manufacturing Company. The Complainant became aware of serious health and safety concerns about the service center, and in light of the imminent transfer initiated efforts to obtain an environmental assessment that DISD had contracted for. The ALJ found that in none of the seven actions identified by the Complainant as his protected activity did the Complainant express any concern that the environment or public health had been impacted or that any of DISD's activities constituted a potential hazard for the environment external to the service center. The ALJ found that the Complainant's expressions of concern when requesting the environmental assessment were for his personal safety and health and that of his coworkers, and being �purely occupational in nature� were not protected under CERCLA and the TSCA. The ARB found that this was error:

   The ALJ erred in focusing on whether Williams �expressed concern� at the time about the environment or public health, rather than on whether Williams's actions, for which he seeks whistleblower protection, �touch[ed] on the concerns for the environment or public health and safety that are the focus of the environmental acts.� � �Protection under the environmental acts is extended to a range of activities that further the respective purposes of those statutes.� �. �It is a matter of well settled case law that actions that serve the environmental protection purposes of the TSCA . . . and similar environmental statutes may begin with an employee's personal health concern.� �.

USDOL/OALJ Reporter at 9 (citations and footnote omitted). The ARB stated, however, that the Complainant must have had a reasonable good faith belief that his conduct was in furtherance of the purposes of the act under which he seeks protection when he made the complaint. The ARB noted that a complainant �does not need to express his reasonable belief when he engaged in protected activity so long as he reasonably believed, at the time he voiced his complaint or raised his concerns, that a threat to the environment or to the public existed.� Id . at 10. The ARB also noted that there is a potential for overlap between the environmental whistleblower acts and the Occupational Safety and Health Act. The ARB stated that �[t]he case law makes clear that while the environmental statutes �generally do not protect complaints restricted solely to occupational safety and health [covered by Section 11(c)],� they do if �the complaints also encompass public safety and health or the environment. Id . at 11 (citations omitted).

Viewing the allegations of the Complainant's complaint and evidence of record in the light most favorable to the Complainant, the ARB found that he presented sufficient information to defeat the motion for summary decision as to protected activity. Specifically, the Complainant's communications to OSHA and repeated requests to DISD for environmental assessments pertaining to the service center clearly touched on the environmental and public health and safety concerns that are CERCLA's focus. The ARB left it to the ALJ on remand to determine whether there was protected activity under the TSCA.

The ARB noted that a question was raised whether the Complainant subjectively believed that he was raising environmental concerns governed by CERCLA or that DISD's actions implicated concerns implicated under CERCLA. The ALJ had looked to the Complainant's deposition to conclude that his only concern was his personal safety and that of his coworkers. The ARB, however, found that the affidavit the Complainant submitted in opposition to the motion for summary decision, bolstered by attached documents, was sufficient to raise a genuine issue of material fact as to whether his concerns went beyond the occupational health and safety concerns raised by Section 11(c) of the OSH Act. The ARB summarized:

   Clearly, Williams, in seeking from DISD the environmental assessment for the Service Center II facility, was seeking information about a potentially serious environmental hazard. Consistent with the environmental statutes and regulations, prior ARB law, and other case law, Williams's request for information touched on the environmental concerns CERCLA covers. Williams presented evidence that DISD resisted producing the environmental assessments Williams sought, an assertion DISD did not refute. Williams's pursuit of information about such an environmental concern in this particular case is exactly what CERCLA attempts to ensure is not silenced, regardless of whether the employee pursues the interest solely for himself and his co-workers. The ALJ's insistence that, to be protected by CERCLA, Williams express concern for protecting non-DISD employees, the public, or the environment, was too narrow in this case. The environmental hazard, about which Williams sought information, appears to be a potentially large and potentially serious public concern notwithstanding its obvious occupational health and safety implications. The fact question nevertheless remains as to whether Williams subjectively believed he was raising environmental concerns. �

USDOL/OALJ Reporter at 13-14 (footnote omitted).

ADVERSE ACTION UNDER FRSA INCLUDES THREATENED DISCIPLINE

CAUSATION UNDER FRSA; BOARD REJECTS AS TOO CLEVER THE RESPONDENT'S ARGUMENT THAT IT INITIATED A DISCIPLINARY INVESTIGATION ONLY BECAUSE THE COMPLAINANT ALLEGEDLY SAT ON A CHAIR WITHOUT FIRST INSPECTING ITS SAFETY, RATHER THAT BECAUSE THE COMPLAINANT REPORTED AN INJURY

In Vernace v. Port Authority Trans-Hudson Corp. , ARB No. 12-003, ALJ No. 2010-FRS-18 (ARB Dec. 21, 2012), the ARB summarily affirmed the ALJ's finding that the Respondent unlawfully discriminated against the Complainant in violation of the employee protection provisions of the Federal Rail Safety Act when the Complainant filed an injury report. On appeal, the Respondent argued that it had taken no disciplinary action against the Complainant. The Respondent had sent a charging letter to the Complainant stating that she had failed to exercise constant care and utilize safe work practices to prevent injury to herself when she failed to inspect a chair before sitting on it.

In the ALJ's decision, she found that the evidence of record showed that charge letters are the first step in a disciplinary process that has the potential to culiminate in varying levels of discipline, and which are likely to have a chilling effect on employees regarding the filing of injury reports. Vernace v. Port Authority Trans-Hudson Corp. , ALJ No. 2010-FRS-18 (ALJ Sept. 23, 2011), slip op. at 24-27. The ALJ found that under ARB caselaw, "the filing of charges against Complainant which carried the potential for future discipline was an unfavorable personnel action." Id. at 27.

The ARB found that substantial evidence supported the ALJ's findings and that the ALJ legal analysis and conclusions were correct. The ARB wrote:

The ALJ noted that the relevant regulations include "intimidating" and "threatening" actions as prohibited discrimination. We agree with the ALJ's reliance on our analysis of a similar regulation in Williams v. American Airlines , ARB No. 09-018, 2007-AIR-004 (ARB Dec. 29, 2010). Moreover, Congress re-emphasized the broad reach of FRSA when it expressly added "threatening discipline" as prohibited discrimination in section 20109(c) of the FRSA whistleblower statute. The disciplinary investigation stretching one year in this case qualifies as discrimination under the regulations and as "any other discrimination" prohibited by the statute.

   PATH unpersuasively challenges the ALJ's factual finding of causation by arguing that it initiated a disciplinary investigation only because of the allegedly unsafe use of a chair (sitting on it) and not because Vernace reported an injury. As the ALJ explained, this clever distinction ignores the broad and plain language of the statute and regulations. It also ignores FRSA's extensive legislative history citing the rampant practices of abuse and intimidation inflicted on railroad workers who reported or even attempted to report work injuries. The ALJ thoroughly explained her factual and legal findings, and we incorporate them into this decision.

ARB slip op. at 2-3) (footnotes omitted).

ARB order approving Complainant's unopposed petition to approve ALJ's attorney fee award under the automatic review provisions of the STAA regulations applicable to the complaint. The STAA regulations have since been amended to no longer provide for automatic review of ALJ decisions.

The ARB affirmed the ALJ's conclusion, based on the ALJ's review of the evidence and observation of the demeanor of the witnesses, that the Respondent fired the Complainant because he was unable to perform his managerial duties, and not because he engaged in STAA-protected activity.

[STAA Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; OBJECTIVELY REASONABLE BELIEF; REASONABLENESS OF COMPLAINANT'S BELIEF, WITHOUT AN INSPECTION, THAT A FLAT TIRE HAD NOT BEEN FIXED PRIOR TO SECOND ASSIGMENT OF THE SAME TRUCK

In Klosterman v. E.J. Davies, Inc. , ARB No. 12-035, ALJ No. 2007-STA-19 (ARB Dec. 18, 2012) (reissued with corrected caption Jan. 9, 2013), the ALJ found that the Complainant had engaged in other protected activity, but not on the day of his constructive discharge in regard to a refusal to drive based on his belief that a flat tire had not been fixed on his assigned truck. The ARB disagreed. The Complainant had earlier complained that this truck had a flat tire. A few days later he was assigned the same truck and refused to drive that truck because of the flat. In ruling on whether this was protected activity the ALJ indicated that the �refusal to drive� provision of the STAA required that the Complainant establish that the tire was actually flat rather than just that he believed the tire was flat. The ARB found that this was error, and that it had recently ruled that �the statute does not include the qualifier �actual, and that the protection Section 31105(a)(1)(B)(i) affords also includes refusals where the operation of a vehicle would actually violate safety laws under the employee's reasonable belief of the facts at the time he refuses to operate a vehicle, and that the reasonableness of the refusal must be subjectively and objectively determined. USDOL/OALJ Reporter at 5, citing and quoting Ass�t Sec�y & Bailey v. Koch Foods , ARB No. 10-001, ALJ No. 2008-STA-61, slip op. at 9 (ARB Sept. 30, 2011). The ARB found that the Complainant in the instant case only needed to show that operation of the truck would have violated a safety regulation under his reasonable belief of the facts at the time of the refusal to operate the truck. Although the Respondent's owner testified that he had repaired the flat, there was no evidence of record to support that claim and there was no evidence showing that the Complainant no longer reasonably believed the tire was flat at the time of the second assignment of the truck. The ARB acknowledged that the record was silent as to whether the Complainant inspected the truck at the time of the second assignment, but found it undisputed that the owner did not inform the Complainant that he had fixed the truck, but had instead told the Complainant that �it's just one trip� and that he should �drive or go home.� The ARB found that these statements suggested that the tire was not fixed. The ARB stated that had the owner informed the Complainant that the tire was fixed, the Complainant could not have reasonably refused to drive. In the instant case, however, the facts were sufficiently clear for the ARB to conclude that the Complainant reasonably believed that the tire was flat on the day in question, and therefore the Complainant engaged in protected activity.

One member of the Board wrote separately to state that under the ALJ's finding on the facts of the case, it was questionable whether other drivers in the Complainant's situation would have assumed the tire was flat without doing an inspection. Nonetheless, because the ALJ found other protected activity, this unanswered question was harmless.

[STAA Digest VI A]
[STAA Digest IX B 3 b]
ADVERSE ACTION; DUTY TO MITIGATE; ONCE RESPONDENT DISCHARGED THE COMPLAINANT, PURPORTED OBLIGATION OF COMPLAINANT TO PRESENT HIMSELF FOR WORK FOR THE UNION TO FILE A GRIEVANCE WAS IRRELEVANT TO STAA DUTY TO MITIGATE; UNDER STAA, ONCE TERMINATED THE ONLY OBLIGATION OF THE COMPLAINANT IS TO ATTEMPT TO FIND COMPARABLE EMPLOYMENT

In Klosterman v. E.J. Davies, Inc. , ARB No. 12-035, ALJ No. 2007-STA-19 (ARB Dec. 18, 2012) (reissued with corrected caption Jan. 9, 2013), the ARB had found in an earlier decision that, as a matter of law, the Respondent's owner had terminated the Complainant's employment when he told the Complainant to drive or go home, and then immediately considered that the Complainant had voluntarily quit. On remand, the ALJ found that the termination had only lasted one day. After being instructed to �drive or go home,� the Complainant had contacted his union representative regarding his possible remedies, and the union representative told the Complainant that the Respondent's owner had told him that the Complainant had quit. The Complainant told the union representative that he had not quit, but had simply refused to drive an unsafe vehicle. The union representative told the Complainant he would look into it, and later told the Complainant that he was required to present himself at the worksite for work every morning to have the union file a grievance on his behalf. The ARB held that the Complainant's actions following the termination may be relevant to his rights and remedies under the collective bargaining agreement, but that under STAA precedent, the Respondent's owner's behavior the day of the refusal to drive constituted termination, and therefore regardless of whether the Complainant presented himself for work thereafter, the Respondent no longer employed him. Because the Complainant was no longer employed by the company, he could not have had a duty to present himself for work. The ARB stated that following termination of employment, STAA precedent required only that the Complainant mitigate damages by attempting to find comparable employment. Thus, the ARB reversed the ALJ's finding that the discharge was limited to a single day.

[STAA Digest IV A 2 c]
CAUSATION; WHERE RESPONDENT�S OWNER DEVISED A PLAN TO CREATE A �FLASHPOINT� TO SUPPORT REMOVAL OF THE COMPLAINANT AS SHOP UNION STEWARD, WHICH WAS PARTLY MOTIVATED BY THE COMPLAINANT�S MANY SAFETY COMPLAINTS, CAUSATION ESTABLISHED AS A MATTER OF LAW

In Klosterman v. E.J. Davies, Inc. , ARB No. 12-035, ALJ No. 2007-STA-19 (ARB Dec. 18, 2012) (reissued with corrected caption Jan. 9, 2013), the ARB found under the facts of the case that because the Complainant's refusal to drive constituted protected activity, causation was established as a matter of law. The ARB wrote:

    To show that an employer retaliated in violation of the STAA, a complainant must show that the employer took adverse action against that complainant because of protected activity. The ALJ found that Klosterman [the Complainant] raised protected safety complaints before December 20th. She also found that, on December 19, 2005, Vordermeier [the Respondent's owner] began devising a plan to neutralize Klosterman's ability to make many of his safety complaints by removing him as the shop union steward. More importantly, Vordermeier could not fire Klosterman and knew that the union had to fire Klosterman or he had to quit to end his employment. Consequently, we conclude that these findings by the ALJ demonstrate that Klosterman's safety complaints partly motivated Vordermeier's adverse actions on December 19 and 20, 2005. We agree with Klosterman that the Respondent set out to create a �flashpoint� on December 20, 2005, and the ALJ's fact findings support this conclusion, particularly her findings about previous protected activity, Vordermeier's frustration, and Vordermeier's plan on December 19, 2005. Additionally, the ALJ found that Vordermeier's actions on December 20, 2005, in particular his injunction to �drive or go home,� were motivated in part by the Complainant's refusal to drive on the same date. � She explicitly held in her earlier decision: �I also find the evidence establishes that Mr. Vordermeier's �drive or go home� statement was made specifically in response to the Complainant's comments about the vehicle he was assigned to drive.� ... Since Klosterman's refusal to drive constituted protected activity, causation is established as a matter of law.

USDOL/OALJ Reporter at 9 (footnote and citations omitted).

PETITION FOR REVIEW OF AFFORDABLE CARE ACT ALJ DECISION WHERE PROCEDURAL REGULATIONS NOT YET PROMULGATED; WHERE NO PARTY FORMALLY PETITIONS FOR ARB REVIEW, ALJ'S DECISION BECOMES FINAL DECISION OF THE DEPARTMENT OF LABOR

In Blake v. Mast Drug Co., Inc. , ARB No. 13-020, ALJ No. 2012-ACA-2 (ARB Dec. 17, 2012), the ALJ referred the case to the ARB for possible review because regulations governing the procedure for review of an ALJ decision under the employee protection provisions of the Affordable Care Act had not yet been promulgated. The ARB directed the parties to file a petition for review if such review was sought. When neither party filed a petition, the ARB closed the case noting that the ALJ's decision would be the final order for the Department of Labor in the case.

RECORD ON REVIEW BEFORE THE ARB; DOCUMENTS SUBMITTED TO OSHA BUT NOT IN THE DE NOVO PROCEEDING BEFORE THE ALJ

In Woods v. Boeing-South Carolina , ARB No. 11-067, ALJ No. 2011-AIR-9 (ARB Dec. 10, 2012), the Respondent moved to strike certain documents appended to the Complainant's appellate brief before the ARB. The Complainant conceded that two of the documents were not the record before the ALJ, but argued that the other documents were submitted with his complaint to OSHA (or in a supplement thereto) and that he had assumed that they were part of the record on appeal. The ARB granted the motion to strike, stating: �The Assistant Secretary for the Occupational Safety and Health Administration (OSHA) is only required to forward to the ALJ the original complaint and the findings and order. Thus whatever records were submitted [before OSHA], were not included in the record before the ALJ (nor subsequently before the Board).� USDOL/OALJ Reporter at 3 (footnotes omitted). The ARB noted that it �is an appellate body whose review is generally limited to the record that was before the ALJ when he or she decided the case.� Id . at 4. (footnote omitted). The ARB noted that it �may consider remanding a case to an ALJ to re-open a record where a party establishes that the party has submitted new and material evidence that was not readily available prior to the closing of the record.� Id . (footnote omitted). In the instant case, however, the Complainant had made no such showing.

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; RESPONDENT�S PROVISION OF AN EEO AND ETHICS PROCEDURE FOR HARASSMENT CLAIMS DOES NOT, IN ITSELF, ESTABLISH THAT THE RESPONDENT IMPROPERLY MISLED OR INDUCED THE COMPLAINANT TO DELAY FILING AIR21 COMPLAINT

In Woods v. Boeing-South Carolina. , ARB No. 11-067, ALJ No. 2011-AIR-9 (ARB Dec. 10, 2012), the Complainant argued that equitable tolling should apply to his AIR21 whistleblower complaint because the Respondent allegedly induced him to take advantage of internal processes, none of which found in his favor, but all of which culminated in dismissal of his harassment complaint exactly one day after the 90 day AIR21 limitations period had run. The ARB noted that �the Secretary of Labor had ruled in an ERA case that the deadline for filing claims is not tolled when an employee engages in the employer's internal review proceedings. Furthermore, the Secretary has recognized, that courts �generally have held that unless the employer has acted deliberately to deceive, mislead or coerce the employee into not filing a claim in a timely manner, equitable estoppel will not apply. USDOL/OALJ Reporter at 9 (footnotes omitted). The ARB found that the mere fact that the Respondent provided an EEO and Ethics procedure for harassment claims did not establish that the Respondent improperly misled or "induced" the Complainant to make use of this procedure to his detriment. Moreover, the fact that the EEO and Ethics Office did not find in the Complainant's favor was not in itself sufficient for tolling purposes. The ARB found that the Complainant had alleged no facts even suggesting that the Respondent attempted to improperly induce, much less coerce, the Complainant into forgoing the filing of an AIR 21 complaint. The ARB also found that the Complainant's assertion that his harassment complaint was dismissed one day after the AIR21 fling period had expired was incorrect, and that the Complainant actually had 10 days after being informed that this harassment complaint had been denied to file a timely AIR21 complaint.

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; FILING OF EEO COMPLAINT IS NOT, STANDING ALONE, SUFFICIENT TO INVOKE WRONG FORUM GROUND FOR EQUITABLE TOLLING

In Woods v. Boeing-South Carolina , ARB No. 11-067, ALJ No. 2011-AIR-9 (ARB Dec. 10, 2012), the Complainant argued that equitable tolling of his AIR21 complaint based on filing in the wrong forum should apply to his AIR21 whistleblower complaint because he had filed a harassment complaint under the Respondent's EEO and ethics procedures. The ARB noted that neither of these complaints could have been the precise AIR21 complaint based on the Complainant's termination of employment because they both had been filed before the termination. The ARB held that even if there had been overlap between the EEO complaint and the whistleblower complaint, this overlap was not sufficient to establish that the Complainant attempted to file the precise complaint under a whistleblower statute under the EEO process.

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; ABSENCE OF PREJUDICE TO RESPONDENT IS A FACTOR ONLY IF THE COMPLAINANT IS OTHERWISE ENTITLED TO EQUITABLE TOLLLING

In Woods v. Boeing-South Carolina , ARB No. 11-067, ALJ No. 2011-AIR-9 (ARB Dec. 10, 2012), the Complainant argued that the ALJ erred by failing to take into account the probable lack of prejudice to the Respondent if equitable tolling were applied to his untimely AIR21 whistleblower complaint. The ARB rejected this argument, stating that �while an absence of prejudice to the non-moving party will be considered in determining whether to toll the limitations period if such tolling is otherwise justified, such a factor is not relevant in determining whether [the Complainant] presented a sufficient justification for doing so in the first instance.�

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; MENTAL ILLNESS; ADA-PROTECTED INDIVIDUAL

In Woods v. Boeing-South Carolina , ARB No. 11-067, ALJ No. 2011-AIR-9 (ARB Dec. 10, 2012), the Complainant argued that the ALJ erred in overlooking, when ruling on whether the filing date for his untimely AIR21 whistleblower complaint should be equitably tolled, the Complainant's disabilities which were allegedly exacerbated by the Respondent's toleration for his harassment. The ARB rejected this argument. The ARB wrote: �The Board has recognized that mental incapacity could qualify for tolling as an extraordinary reason that the petitioning party was prevented from filing, but the party must make a particularly strong showing. Further, the Board has adopted the traditional rule that mental illness tolls the limitations period only if the illness in fact prevents the petitioning party from managing his affairs and thus from understanding his legal rights and acting upon them.� USDOL/OALJ Reporter at 11 (footnotes omitted). The ARB found that the Complainant had not raised any material issue of fact in response to the Respondent's motion to dismiss adequately addressing the issue of whether he was capable of understanding and addressing his legal rights during the filing period. In fact, such a contention was in contradiction to other arguments the Complainant had made on appeal, and to the fact that the Complainant had filed and pursued numerous complaints during this period. The Complainant asserted that he had requested accommodations under the ADA for several conditions, and that an administrative bar would prevent an ADA-protected individual from exercising rights. The ARB also rejected this argument noting that the Complainant had cited no precedent holding that the status of being an ADA-protected individual in itself entitles that individual to tolling of a limitations period.