USDOL/OALJ Reporter: ARB Decision Caselist - December 2016

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[STAA Digest IV A 2 c]
CONTRIBUTING CAUSE; EVIDENCE OF TEMPORAL PROXIMITY OUTWEIGHED BY OTHER FACTORS

In Carter v. CPC Logistics, Inc. , ARB No. 15-050, ALJ No. 2012-STA-61 (ARB Dec. 22, 2016), the ARB summarily affirmed the ALJ’s finding that complaint should be dismissed on the ground that the Complainant failed to prove that his protected activity of refusing to drive while fatigued was a contributing factor in termination by the Respondents. The ALJ had found that the Complainant’s testimony at the hearing and in depositions was not credible, and that the Respondents’ five witnesses were more credible. Although the ALJ found that temporal proximity, in the absence of other factors, would support an assumption that the Complainant was fired for refusing to drive when he felt ill, there were other factors—such as Complainant’s lack of credibility, evidence that the Complainant took far longer to complete runs than other drivers, a co-worker’s continued complaints about the Complainant’s delays and tardiness, the Complainant’s sarcastic and threatening behavior, the Complainant’s failure to return a phone call, the fact that the Respondent’s regional manager’s recommendation to discharge the Complainant was based on a review the Complainant’s manifests, etc.

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[STAA Digest II B 2 d ii]
TIMELINESS OF REQUEST FOR ALJ HEARING; WRONG FORUM EQUITABLE TOLLING REQUIRES DUE DILIGENCE; TOLLING ONLY LASTS UNTIL COMPLAINANT BECOMES AWARE OF ERROR

In Herron v. North American Central School Bus, LLC , ARB No. 16-040, ALJ No. 2015-STA-55 (ARB Dec. 21, 2016), the Complainant filed both a Section 11(c) complaint under the OSH Act, and a Section 405 complaint under the STAA. OSHA denied both complaints and provided a notice of the differing appellate rights for both types of complaints. The ARB stated: “For an 11(c) complaint, OSHA’s non-merit finding will become a final order of the Secretary of Labor unless either party files an objection to the determination with the Directorate of Whistleblower Protection Programs (DWPP), within 15 days. For a STAA complaint, a party must file a request for a hearing with the Office of Administrative Law Judges (OALJ) within 30 days of the date of the Secretary’s findings.” USDOL/OALJ Reporter at 2 (footnote omitted).

The Complainant, mistakenly believing that he could file his hearing request with the OALJ after the Directorate decided that appeal, only filed a request for review with the Directorate, and did not request a hearing with the OALJ. The Directorate informed the Complainant that it does not process STAA appeals, requested that the Complainant contact the OALJ, and provided the Complainant with OALJ’s address. The Complainant, however, did not request a hearing on the STAA complaint with OALJ until 69 days after the Secretary’s findings and 43 days after the Directorate reiterated that he must request a hearing on his STAA complaint with OALJ.

The presiding ALJ found that the hearing request was not timely, but considered whether the Complainant was entitled to equitable tolling. Assuming arguendo that the “wrong forum” ground for equitable tolling applied, the ALJ found that the tolling only lasted until the Directorate informed the Complainant that he had filed in the wrong forum on the STAA complaint. Because the Complainant had not filed with OALJ within 30 days of the date he knew, or should have known, that he had filed in the wrong forum, the ALJ found that the hearing request was not timely. The ARB affirmed, stating that “[i]n failing, at the very least, to contact OALJ once the Directorate instructed him to do so, [the Complainant] did not demonstrate the due diligence necessary to invoke equitable tolling to establish the timely filing of his hearing request.” Slip op. at 3-4 (footnote omitted).

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[STAA Digest IV A 2 a]
[STAA Digest IV A 2 c]
REFUSAL TO HIRE; IN COMPLAINT FILED PRIOR TO 2007 AMENDMENTS TO STAA, CAUSATION IS DETERMINED BY “MOTIVATING FACTOR” RATHER THAN “CONTRIBUTING CAUSE” STANDARD; SUBSTANTIAL EVIDENCE SUPPORTED THE ALJ’S FINDING THAT THE RESPONDENT HAD A POLICY THAT FAILURE TO REPORT AN ACCIDENT AUTOMATICALLY RESULTS IN FIRING OR REFUSAL TO HIRE

In Smith v. CRST International, Inc. , ARB No. 15-004, ALJ No. 2006-STA-31 (ARB Dec. 21, 2016), the Complainant was a driver for a small leasing company that had a contract with the Respondent. Shortly after being hired, the Complainant complained that a trailer he was hauling was structurally unsafe and informed the dispatcher “to get me another trailer or get yourself another driver.” The leasing company interpreted this ultimatum as a resignation, and terminated the Complainant’s employment. The Complainant then negotiated with the Respondent to drive for it as an independent contractor. The Respondent asked the owner of the leasing company whether she would object to the Complainant driving for it, and the owner said that she did not object. However, when the leasing company’s owner sent the Respondent a Notice of Personnel Action stating that the Complainant had quit, had not reported an accident, and had damaged equipment, the Respondent’s safety director disqualified the Complainant from driving a Respondent-leased truck on the ground that the Complainant had to report an accident while employed by the leasing company. The Complainant then filed an STAA retaliation complaint based on the refusal to hire. After a protracted procedural history, the case was remanded to the ALJ to make a finding on causation. The ALJ found that temporal proximity of the protected activity and the refusal to hire was sufficient to raise an inference of causation, but that the Respondent had successfully established its nondiscriminatory reason for the adverse action—that failure to report an accident is an “automatic” disqualification for the Respondent’s drivers.” The Respondent presented documentation that it had discharged or refused to hire 16 similarly-situated drivers.

On appeal, the ARB first noted that because this complaint was filed prior to the 2007 amendments to the STAA, the Complainant was required to prove by a preponderance of the evidence that a causal link or nexus existed between the protected activity and the adverse action, and that such causal link was a “motivating factor” in the employer’s decision to take adverse action. The 2007 amendments, in contrast, only require the complainant to establish “contributing factor” causation.

In the instant case, the ARB found that substantial evidence supported the ALJ’s findings that the Respondent’s safety director lacked any knowledge of protected activity, and that neither the owner of the leasing company nor the Respondent’s recruiter influenced the safety director’s decision not to hire the Complainant.

The Complainant argued that the information about the unreported accident was false and was the only reason that the Respondent did not hire him. The Complainant cited Yazdian v. ConMed Endoscopic Techs., Inc. , 793 F.3d 634, 654 (6th Cir. 2015), for the proposition that the Respondent’s failure to investigate whether the leasing company’s notice of his unreported accident was true shows pretext. The ARB, however, found that Yazdian did not support that the proposition that a potential employer must investigate the reason behind its decision not to hire. The ARB noted that the ALJ had credited the testimony of the Respondent’s witnesses that unreported accidents were an automatic disqualification from working for the Respondent. The ARB stated that “nothing in this case suggests that [the Respondent] had a duty to determine the veracity of the personnel notice.” Slip op. at n.25.

The ARB was not persuaded by the Complainant’s contention that the ALJ erred by failing to find that temporal proximity, combined with the Respondent’s deviation from normal practice, inconsistency with written policies, and a shifting explanation for not hiring the Complainant, were sufficient to establish a causative nexus between his protected activity and the Respondent’s refusal to hire him. The ARB found that substantial evidence supported the ALJ’s determination that the safety director’s reason for refusing to hire the Complainant was legitimate and non-discriminatory.

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ARB DECLINES TO ACQUIESCE IN THIRD CIRCUIT’S FINDING IN BALA v. PATH THAT FRSA SECTION 20109(c)(2) APPLIES ONLY TO TREATMENT PLANS FOR ON-DUTY INJURIES

In Williams v. Grand Trunk Western Railroad Co. , ARB Nos. 14-092, 15-008, ALJ No. 2013-FRS-33 (ARB Dec. 5, 2016) (as corrected by erratum), the Complainant had from birth suffered from anxiety, migraine headaches, and depression. The Complainant, a locomotive engineer since 1995, sought treatment for these conditions since 2005, and had been prescribed medication. In 2011, after the Complainant had called in sick or took FMLA leave a number of times, the Respondent investigated, and—despite documentation from the treating physician showing that the Complainant had been absent due to the physician’s treatment plan for the ongoing conditions and that the condition interfered with the Complainant’s job duties—fired the Complainant for failing to work on a regular basis. The Complainant filed an FRSA complaint, and the ALJ found in favor of the Complainant, applying the ARB’s decision in Bala v. Port Authority Trans-Hudson Corp. , ARB No. 12-048, ALJ No. 2010-FRS-26 (ARB Sept. 27, 2013).

On appeal, the ARB acknowledged that the Third Circuit had reversed and remanded the its decision in Bala v. Port Authority Trans-Hudson Corp. v. Sec’y, U.S. Dep’t of Labor , 776 F.3d 157, 160 (3d Cir. 2015). The Third Circuit held that Section 20109(c)(2) applies only to treatment plans for on-duty injuries. The Third Circuit had found that “subsection (c)(1) is a ‘substantive provision’ while subsection (c)(2) is an ‘anti-retaliation provision. ’ ” Williams, supra , slip op. at 4. The ARB in Williams , however, disagreed with the Third Circuit’s interpretation of the statute. The ARB noted that in Bala it had found that “the structure of section 20109(c) in effect provides protection with two substantive provisions, the first for seeking medical treatment and the second for efforts to comply with the treatment plan. While Congress specifically limited the first provision to seeking medical treatment for work-related injuries, it did not do so for the second provision providing protection to employees for following a treatment plan. ” Id . The ARB thus declined to acquiesce in the Third Circuit’s decision in Bala outside the Third Circuit, and affirmed the ALJ’s decision.

WHAT CONSTITUTES A PHYSICIAN’S TREATMENT PLAN UNDER THE FRSA; ADVICE TO TAKE MEDICATION AND STOP WORKING WHEN EXPERIENCING SYMPTOMS, AND STATEMENT OF THESE INSTRUCTIONS IN FMLA LEAVE FORM FOUND SUFFICIENT

In Williams v. Grand Trunk Western Railroad Co. , ARB Nos. 14-092, 15-008, ALJ No. 2013-FRS-33 (ARB Dec. 5, 2016) (as corrected by erratum), the Complainant had from birth suffered from anxiety, migraine headaches, and depression. The Complainant, a locomotive engineer since 1995, sought treatment for these conditions since 2005, and had been prescribed medication. In 2011, after the Complainant had called in sick or took FMLA leave a number of times, the Respondent investigated, and—despite documentation from the treating physician showing that the Complainant had been absent due to the physician’s treatment plan for the ongoing conditions and that the condition interfered with the Complainant’s job duties—fired the Complainant for failing to work on a regular basis. The Complainant filed an FRSA complaint, and the ALJ found in favor of the Complainant, applying the Board’s decision in Bala v. Port Authority Trans-Hudson Corp. , ARB No. 12-048, ALJ No. 2010-FRS-26 (ARB Sept. 27, 2013). Although the ARB’s decision in Bala had been reversed by the Third Circuit in Bala v. Port Authority Trans-Hudson Corp. v. Sec’y, U.S. Dep’t of Labor , 776 F.3d 157, 160 (3d Cir. 2015), the ARB declined to acquiesce in that decision outside the Third Circuit.

On appeal, the Respondent contended that the Complainant was not under a treatment plan because the physician’s treatment instructions were just general advice. The ARB rejected this contention, noting that it had “held in Santiago v. Metro-North Commuter R.R. Co., Inc. , ARB No. 10-147, ALJ No. 2009-FRS-011 (ARB July 25, 2012), that the term ‘ treatment plan’ is generally defined as the management and care of a patient to combat disease or injury and is ‘commonly used to include not only medical visits and medical treatment, but also physical therapy and daily medication, among other things. ’ ” (footnote omitted). The ARB found that here, the physician had advised the Complainant that “when he experienced symptoms from his anxiety, depression, and migraines that he should treat the symptoms, take the prescription medication Xanax, and not work. ” Williams, supra , slip op. at 5. The ARB stated that “ [t]he fact that Dr. Bernick’s instructions were outlined on a FMLA leave form does not negate their identification as a treatment plan, but rather acts as evidence that Grand Trunk had notice of the plan because Dr. Bernick’s recertification of the need for medical treatment of Williams’s conditions did not substantially change through the repeated applications for FLMA. ” Id .