USDOL/OALJ Reporter: ARB Decision Caselist - December 2017

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[STAA Digest VI B 1]
ADVERSE ACTION; EMPLOYER’S INTERPRETATION OF EMPLOYEE’S AMBIGUOUS ACTION AS A VOLUNTARY RESIGNATION WITHOUT FIRST SEEKING CLARIFICATION MAY CONSTITUTE A DISCHARGE; FOCUS IS ON REASONSABLE INTERPRETATION OF EMPLOYEE, NOT WHETHER FORMAL WORDS DENOTING A DISCHARGE WERE SPOKEN

In Ass't Sec'y & Becker v. Smithstonian Materials, LLC , ARB No. 15-081, ALJ No. 2013-STA-50 (ARB Dec. 19, 2017), the ALJ ruled that the Respondent retaliated against the Complainant for protected activity under the STAA (refusing to drive an assigned truck) by suspending the Complainant for a single day. The ALJ found that the Prosecuting Party had failed to carry its burden of establishing that the Complainant had been terminated from employment. The ARB remanded for the ALJ to reconsider the adverse action question, finding that the ALJ had not applied the correct standard. The ARB wrote:

   We have repeatedly held that “an employer’s interpretation of an employee’s ambiguous action as a voluntary resignation, without having first sought clarification from the employee, [may] constitute the employer’s discharge of the employee, and therefore an adverse employment action.”

   Furthermore, it is improper for an employer to treat an employee’s equivocal statement as a resignation and, based on its interpretation, end the employment relationship. It is also possible that an employer may use language or engage in conduct that would lead an employee to believe his employment has been terminated, such as demanding the return of company equipment. In such cases a court’s analysis should focus on the reasonable interpretation of the employee, not whether formal words denoting a discharge were in fact spoken. It is therefore essential for the ALJ to evaluate Becker’s interpretation of Smith’s reaction to his November 30, 2010 refusal to drive.

Slip op. at 6 (footnotes omitted).

The ALJ had found that neither the Complainant nor the Respondent’s owner were credible witnesses, and thus based his ruling on the credible testimony of an employee who had witnessed the exchange between the Complainant and the owner. That witness, while walking back and forth in the shop, had overheard the Complainant and owner talking about the truck at issue being fixed and ready to drive, and the owner telling the Complainant to “Go home for the day.” The ARB stated, however, that accepting the witness’ statement as true did not negate the fact that the owner took actions that the Complainant could have reasonbably interpreted as a discharge. The ARB pointed out that the parties agreed that the Complainant never told the owner that he quit; the owner admitted that that he told the Complainant to “[d]rive what I tell you to drive or stay home”; and, although the owner testified that he expected the Complainant return to work the following day, the Complainant had been instructed to return a phone and keys. The ARB stated that such inconsistencies should be adddressed by the ALJ when applying the Board’s precedent.

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TIMELINESS OF COMPLAINT; TRIGGER DATE IS WHEN COMPLAINANT RECEIVES FINAL, DEFINITIVE AND UNEQUIVOCABLE NOTICE OF ADVERSE EMPLOYMENT ACTION, AND NOT WHEN ITS EFFECTS ARE FELT; CONTINUITY OF EMPLOYMENT FOLLOWING SUCH NOTICE DOES NOT PROLONG CAUSE OF ACTION

In McManus v. Tetra Tech Constr. Inc. , ARB No. 16-023, ALJ No. 2016-SOX-12 (ARB Dec. 19, 2017), the ARB affirmed the ALJ’s ruling that the Complainant’s SOX complaint was not timely filed. The Complainant had been informed on January 27, 2015 that he would be terminated from employment effective in one week. The Complainant’s termination did not actually occur until the office location at which he worked was closed on March 18, 2015. The Complainant filed a SOX complaint with OSHA on August 5, 2015, and the filing was received on August 6, 2015. The Respoondent moved to dismiss the complaint as untimely. The ALJ determined that the Complainant had received final, definitive and unequivocal notice of his termination on January 27, 2017, and that the period from the notice until its effective date was winding down time.

The Complainant contended that the Respondent changed its course on several business decisions before the termination notice and therefore he was justified in thinking that the termination was an undecided point. Also, the Complainant pointed out that senior management had earlier informed him that he had no future with the company, only to be told the next day by the President and CFO that did have a future with the company. The ARB was not persuaded by these contentions, and affirmed the ALJ’s determination. The ARB wrote:

It is not the date that the termination or adverse act is felt or takes effect which starts the clock. Rather, it is the date that the employee has final, definitive, and unequivocal notice of the adverse action. Snyder v. Wyeth Pharms. , ARB No. 09-008, ALJ No. 2008-SOX-055 (ARB Apr. 30, 2009); see also Delaware State Coll. v. Ricks , 449 U.S. 250, 258 (1980); Chardon v. Fernandez , 454 U.S. 6, 8 (1981) (proper focus contemplates the time the employee receives notification of the discriminatory act, not the point at which the consequences of the act become apparent).

* * *

Although McManus’s actual termination was not until March 18, 2015, “[m]ere continuity of employment, without more, is insufficient to prolong the life of a course [sic] of action for employment discrimination.” Ricks , 449 U.S. at 257.

Slip op. at 3 (ARB’s quotation of Ricks should have said “cause of action”).

The ARB also noted that the Complainant had not offered any facts following January 27, 2015 suggesting that the termination notice did not reflect a final decision or that it was still being reviewed or considered.

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[STAA Digest II Q]
EQUITABLE TOLLING OF PERIOD FOR REQUESTING ARB REVIEW; DELAY IN RECEIPT OF ALJ’S DECISION FOUND NOT TO BE EXTRAORDINARY CIRCUMSTANCE WHERE COMPLAINANT’S COUNSEL STILL HAD FIVE DAYS TO EITHER FILE A PETITION FOR REVIEW OR TO FILE A MOTION FOR AN ENLARGEMENT OF TIME, BUT HE DID NEITHER

In Nevarez v. Werner Enterprises , ARB No. 18-005, ALJ No. 2013-STA-12 (ARB Dec. 14, 2017), the Complainant’s petition for review by the ARB was filed more than 14 days after the ALJ issued his Decision and Order After Remand Denying Whistleblower Complaint, and the ARB issued an Order to Show Cause why the petition should not be dismissed as untimely. See 29 C.F.R. § 1978.110(a)(2016) (14 day period for filing petition).

In response, the Complainant averred that his counsel did not receive the ALJ’s D. & O. until five days before the petition for review was due and that the press of other business precluded Complainant’s counsel from timely filing the petition for review. The Complainant did not file the Petition for Review until three days after it was due and eight days after his counsel received it. The Complainant argued that the delay of three or four days in the delivery of the ALJ’s D. & O. was an extraordinary circumstance that prevented him from timely filing the petition for review. Noting that attorney error does not constitute an extraordinary factor justifying equitable tolling, the ARB dismissed the appeal. The ARB stated:

   Furthermore, “extraordinary circumstances” is a very high standard that is satisfied only in cases in which even the exercise of diligence would not have resulted in timely filing. While the fact that the ALJ’s Order was not delivered until the ninth day after it was issued may have been unusual, we do not find it so abnormal as to qualify as an “extraordinary” circumstance that prevented Nevarez from timely filing his petition. When Nevarez’s counsel received the D. & O. he had five days to act and two legitimate choices—he could either file the petition for review as ordered or he could file a motion for an enlargement of time to file the petition for review—he did neither. Instead, he unilaterally decided, without consulting the Board, that Nevarez was entitled to toll the due date for filing because it had taken more time than usual for the petition to reach him, and he was busy. Had Nevarez’s counsel contacted the Board and explained the reasons for requiring an enlargement of time, it is likely that the Board would have granted the request, but he failed to ask for such an enlargement and thereby has failed to establish due diligence.

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[STAA Digest XII]
OSHA’S DISMISSAL OF COMPLAINT FOR LACK OF COOPERATION DID NOT BAR BRINGING THE FACTUAL CLAIMS IN A SUBSEQUENT COMPLAINT UNDER THE CIRCUMSTANCES OF THE CASE

In Beatty v. Celadon Trucking Services, Inc. , ARB Nos. 15-085, -086, ALJ No. 2015-STA-10 (ARB Dec. 8, 2017), the Respondent argued that the Complainants’ failure to timely file objections to OSHA’s dismissal of a complaint for failure to cooperate with the investigation bars, as a matter of law, their bringing the factual claims from that complaint in a subsequent complaint. The ARB found no legal precedent to support this contention and rejected the argument under the circumstances. The ALJ had credited the Complainants’ testimony that they did not intend to file a complaint at the time and were only seeking information. In addition, OSHA only dismissed the complaint for non-responsiveness and did not address the merits.

[STAA Digest V B 2 a iv]
PROTECTED ACTIVITY; EVIDENCE FROM LOGS SHOWING SUFFICIENT BERTH TIME OUTWEIGHED BY CREDIBLE TESTIMONY OF CUMULATIVE FATIGUE FROM WEEKS ON THE ROAD

In Beatty v. Celadon Trucking Services, Inc. , ARB Nos. 15-085, -086, ALJ No. 2015-STA-10 (ARB Dec. 8, 2017), the Respondent contended that the Complainants did not engage in protected activity when reporting fatigue where the Complainants’ logs showed that they had spent sufficient time in their sleeper berths. The ARB, agreeing with the ALJ’s observation that sleep quality is just as important as getting enough sleep, affirmed the ALJ’s finding that the Complainants’ reports of fatigue were protected activity. The ALJ had found credible testimony that the Complainants had been unable to drive a short distance without stopping to sleep, and about the irritability they felt on being tired. The ALJ found that the Complainants had suffered cumulative fatigue from weeks on the road living in and out of trucks.

[STAA Digest IX F]
ENFORCEMENT OF ALJ’S REINSTATEMENT ORDER; ARB DOES NOT HAVE ENFORCEMENT AUTHORITY; RATHER, REMEDY IS TO REQUEST OSHA ENFORCEMENT ACTION IN DISTRICT COURT

In Beatty v. Celadon Trucking Services, Inc. , ARB Nos. 15-085, -086, ALJ No. 2015-STA-10 (ARB Dec. 8, 2017), the Complainants’ challenged before the ARB the sufficiency of an offer of reinstatement following the ALJ’s issuance of an Order of Reinstatement. The ARB noted that the Complainants’ remedy was to apply to OSHA for enforcement in district court. The ARB wrote:

If an ALJ concludes that a respondent has violated the STAA, the ALJ must issue an order requiring, where appropriate, “reinstatement of the complainant to his or her former position with the same compensation, terms, conditions, and privileges of the complainant’s employment.” 29 C.F.R. § 1978.109(d)(1). Here, that means that Respondent must offer to reinstate the Beattys as they were formerly employed, as ordered by the ALJ. If the Beattys believed that Celadon did not make a bona fide offer of reinstatement, their remedy was to apply to the Assistant Secretary for Occupational Safety and Health for enforcement of the Board’s order. See Sec’y Ord. 5-2002 (Oct. 10, 2002) 4.a. (1)(h); Scott v. Roadway Express, Inc. , ARB No. 01-065, ALJ No. 1998-STA-008, slip op. at 2 (ARB May 29, 2003)(Order Denying Motion to Enforce). Under 49 U.S.C.A. § 31105(d), “If a person fails to comply with an order issued under subsection (b) of this section, the Secretary shall bring a civil action to enforce the order in the district court of the United States for the judicial district in which the violation occurred.” Pursuant to 29 C.F.R. § 1978.113, “Whenever any person has failed to comply with a preliminary order of reinstatement or a final order or the terms of a settlement agreement, the Secretary may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to occur.” See Scott , ARB No. 01-065; see also Martin v. Yellow Freight, Inc. , 983 F.2d 1201 (2d Cir. 1993). But the Secretary has not delegated to the Board the authority to enforce such orders.

Slip op. at 12, n.41.

[STAA Digest VI A]
ADVERSE ACTION; A THREAT TO TAKE ADVERSE ACTION DOES NOT LOSE STATUS AS ADVERSE ACTION MERELY BECAUSE DISCIPLINARY ACTION WAS NEVER ACTED ON

In Beatty v. Celadon Trucking Services, Inc. , ARB Nos. 15-085, -086, ALJ No. 2015-STA-10 (ARB Dec. 8, 2017), the Respondent contended that the “threat” of issuing a nonconformance report did not constitute an adverse action because the disciplinary report was not ultimately issued. The ARB rejected this contention. The ARB noted that “[t]he governing STAA regulations explicitly prohibit employers from threatening employees for protected activity and, under the similar FRSA regulatory language, we have repeatedly held that threats of discipline or potential discipline even if never formally administered, may constitute adverse action. The threat to write-up the [the Complainants] contained in an e-mail from [the Driver Manager] constituted an adverse action regardless of whether [the Respondent] formally issued the write-up.” Slip op. at 6 (citations omitted).

[STAA Digest VI A]
ADVERSE ACTION IS SIMPLY SOMETHING UNFAVORABLE, AND A COMPLAINANT NEED NOT SHOW THAT IT WAS UNFAIR, RETALIATORY OR ILLEGAL; ERRONEOUS PLACEMENT OF COMPLAINANTS ON ILLNESS OR MEDICAL HOLD DID NOT LOSE STATUS AS ADVERSE ACTION MERELY BECAUSE HOLD WAS RELEASED UPON REQUEST FOR AN ASSIGNMENT OR BECAUSE IT HAD BEEN PLACED IN ERROR

In Beatty v. Celadon Trucking Services, Inc. , ARB Nos. 15-085, -086, ALJ No. 2015-STA-10 (ARB Dec. 8, 2017), the Respondent had placed the Complainants (who were considered team truck drivers) on an illness or medical hold when they had reported that they were too fatigued to drive and needed a 34-hour restart. One Complainant had been placed on a more “severe” hold that normally requires a physician’s evaluation before it is released. The Respondent released the less severe hold placed on one of the Complainants when he requested an assignment following the 34-hour restart. The other Complainant accompanied on the assignment, and the Respondent initially refused to pay that Complainant because she had not been released from the hold. After investigation, the Respondent acknowledged that the more severe hold placed on the other driver had been an error, released the hold, and paid the other driver for the assignment.

On appeal, the Respondent argued that the ALJ erred in finding that the placement of illness or medical holds was adverse employment action. The ARB affirmed the ALJ’s finding that the fact that the holds were ultimately released, “did not change the effect the hold had on the Beattys and that the holds were improperly placed on the Beattys when they were fatigued, not ill.” Slip op. at 7. The ARB wrote: “An adverse action is simply something unfavorable to an employee, not necessarily unfair, retaliatory or illegal. As an illness/medical hold can affect the ability of a driver to earn money, we affirm the ALJ’s finding that this hold was an adverse employment action as it is reasonable and supported by the evidence.” Id. , citing Occhione v. PSA Airlines , ARB No. 13-061, ALJ No. 2011-AIR-12 (ARB Nov. 26, 2014).

[STAA Digest VI B 1]
CONSTRUCTIVE DISCHARGE; ALTHOUGH “INTOLERABLE WORKING CONDITIONS” IS THE TYPICAL WAY TO DEMONSTRATE CONSTRUCTIVE DISCHARGE, AN ALTERNATIVE IS TO SHOW THAT THE “HANDWRITING IS ON THE WALL”; COMPLAINANTS’ FEAR OF BEING TERMINATED IF THEY CONTINUED TO REPORT FATIGUE FOUND SUFFICIENT TO ESTABLISH CONSTRUCTIVE DISCHARGE

In Beatty v. Celadon Trucking Services, Inc. , ARB Nos. 15-085, -086, ALJ No. 2015-STA-10 (ARB Dec. 8, 2017), the Respondent contended that the ALJ erred in finding constructive discharge. The ARB noted that typically, constructive discharge is established by evidence the employer created “working conditions so intolerable that a reasonable person in the employee’s position would feel forced to resign.” Slip op. at 7, quoting Strickland v. United Parcel Svc. , 555 F.3d 1224, 1228 (10th Cir. 2009), and citing other decisions. The ARB noted, however, that in Dietz , it had held “that is not the only method of demonstrating constructive discharge. When an employer acts in a manner so as to have communicated to a reasonable employee that [he] will be terminated, and the . . . employee resigns, the employer’s conduct may amount to constructive discharge.” Id . , citing Dietz v. Cypress Semiconductor Corp. , ARB No. 15-017, ALJ No. 2014-SOX-2, slip op. at 13 (ARB Mar. 30, 2016) vacated on other grounds sub nom, Dietz v. Cypress Semiconductor Corp. , __Fed.Appx. __, 2017 WL 4676650 (10th Cir. Oct. 17, 2017), which quotes E.E.O.C. v. Univ. of Chi. Hosps. , 276 F.3d 326, 332 (7th Cir. 2002). The ARB continued that “[u]nder this standard, an employee who can show that the ‘handwriting is on the wall’ and the ‘axe is about to fall’ can make out a constructive-discharge claim. Further, to make the case for constructive discharge, the Beattys are not required to show that Celadon threatened to fire them, ‘it is enough to show that [Celadon] communicated to [them] that [they] would be fired.’” Id . at 7-8 (citations omitted).

In the instant case, the ARB found that substantial evidence supported the ALJ’s finding that the Complainants met the alternate standard for constructive discharge. Specifically, the ALJ found evidence that any time the Complainants “refused loads or dispatch assignments for fatigue, they were likely to receive nonconformance reports that might have led to more serious actions or discharge, which would affect their ability to find other trucking employment.” Id . at 8. The ARB noted that “[a]lthough there were no overt threats of termination, the Beattys testified that they were continually urged to drive in spite of fatigue and not feeling safe to drive.” Id . The ARB noted that the ALJ had found the Complainants to be very credible, and had credited their testimony that they believed that they would be terminated if they continued to report fatigue, and that such discipline would likely tarnish their driver’s records and their ability to find other trucking employment.

[STAA Digest IV A 1]
CONTRIBUTING FACTOR CAUSATION; COMPLAINANT NEED NOT ESTABLISH RETALIATORY MOTIVE

In Beatty v. Celadon Trucking Services, Inc. , ARB Nos. 15-085, -086, ALJ No. 2015-STA-10 (ARB Dec. 8, 2017), the Respondent contended that the ALJ “fundamentally misapplied the core legal principle of the STAA” by his ruling that a complainant need not prove retaliatory motive. The ARB rejected this contention, stating that it had “repeatedly held that an employee need not prove that his employer had a motive to retaliate to demonstrate ‘contributing factor.’” Slip op. at 8, citing Menendez v. Haliburton, Inc. , ARB No. 12-026, ALJ No. 2007-SOX-5, slip op. at 9 (ARB Mar. 15, 2013) aff’d sub nom, Halliburton, Inc. v. ARB , 771 F.3d 254, 263 (5th Cir. 2014).

[STAA Digest IV A 1]
CONTRIBUTING FACTOR CAUSATION; SHIFTING EXPLANATIONS FOR ADVERSE ACTION IS CIRCUMSTANTIAL EVIDENCE OF PRETEXT WHICH SUPPORTS A FINDING OF CAUSATION

In Beatty v. Celadon Trucking Services, Inc. , ARB Nos. 15-085, -086, ALJ No. 2015-STA-10 (ARB Dec. 8, 2017), the Respondent contended that the ALJ erred in finding that its refusal to rehire the Complainants was based, at least in part, on their protected activity. The ARB noted, however, that the ALJ had rejected the employer’s shifting reasons for its failure to rehire Complainants, and found that substantial evidence supported the ALJ’s rejection of these reasons, impliedly finding pretext. The ARB noted that the pretextual nature of these justifications were further support of causation.

[STAA Digest IX D 4]
PUNITIVE DAMAGES; MODEST PUNITIVE DAMAGES AWARD WARRANTED TO ENCOURAGE ENFORCEMENT OF THE FATIGUE RULES WHERE RESPONDENT’S ACTIONS WERE IN DISREGARD OF D.O.T. FATIGUE RULE, BUT RESPONDENT’S EMPLOYEES DID NOT ACT MALICIOUSLY OR WITH INTENT TO HARM

In Beatty v. Celadon Trucking Services, Inc. , ARB Nos. 15-085, -086, ALJ No. 2015-STA-10 (ARB Dec. 8, 2017), the Respondent challenged the ALJ’s award of $10,000 in punitive damages, while the Complainants challenged the ALJ’s decision not to impose the maximum punitive damages allowed. The ARB did not disturb the ALJ’s award, finding that it was supported by substantial evidence. The ALJ found that the Respondent’s actions in issuing nonconformance reports when the Complainants declined assignments based on fatigue were in complete disregard of 49 C.F.R. §392.3, prohibiting operation of a commercial motor vehicle by a driver suffering from fatigue. The ARB found that the ALJ had provided the reasoning needed to support a punitive damages award, and affirmed the ALJ’s award of a modest amount to encourage enforcement of the fatigue rules, while recognizing that the Respondent’s employees had not acted maliciously or with intent to harm.

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CLEAR AND CONVINCING EVIDENCE; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDINGS THAT THE COMPLAINANT VIOLATED THE RESPONDENT’S BLUE-FLAG RULES AND ITS ZERO-TOLERANCE POLICY AGAINST WORKPLACE VIOLENCE

CLEAR AND CONVINCING EVIDENCE; TEMPORAL PROXIMITY INFERENCE OF CAUSATION NEGATED BY LACK OF EVIDENCE OF DISPARATE TREATMENT WHERE THE COMPANY HAD ALSO FIRED A SIMILARLY SITUATED CO-WORKER, HAD A ZERO-TOLERANCE POLICY ON WORKPLACE VIOLENCE, AND HAD A HISTORY OF DISMISSING EMPLOYEES WHO VIOLATED BLUE-FLAG RULES

CONTRIBUTING FACTOR CAUSATION STAGE OF FRSA CAUSE OF ACTION; ALJ ERRED IN CONSIDERING LACK OF MOTIVE TO RETALIATE; REMAND NOT WARRANTED, HOWEVER, WHERE SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S ALTERNATIVE FINDING THAT RESPONDENT MET CLEAR AND CONVINCING EVIDENCE BURDEN

In Rathburn v. The Belt Railway Co. of Chicago , ARB No. 16-036, ALJ No. 2014-FRS-35 (ARB Dec. 8, 2017), the Complainant filed a complaint alleging that the Respondent retaliated against him in violation of the FRSA whistleblower provision for reporting an injury and seeking medical treatment for the injury. The ALJ dismissed the complaint following a hearing on the merits, and the ARB affirmed the dismissal.

The Complainant and a coworker were conducting inspections on separate tracks of incoming trains. A dispute arose over whether the Complainant had properly released a blue-flag protection on the track for which the co-worker was doing inspections, leading to a physical altercation in which the Complainant was injured and sought medical treatment. Blue-flag protection rules block entry to a track on which an inspector is working. Both the Complainant and the co-worker were discharged for violating blue-flag protection rules, and rules of conduct relating to altercations and workplace violence.

The ARB found that the ALJ erred in applying the contributing factor causation element of a FRSA complaint because he took into account the lack of evidence that the adverse employment actions were motivated by retaliatory intent. The ARB noted that it “has repeatedly held, an employee need not prove retaliatory animus, or motivation or intent, to prove that his protected activity contributed to the adverse employment action at issue.” Slip op. at 8, citing among other decisions, DeFrancesco v. Union R.R. Co. , ARB No. 10-114, ALJ No. 2009-FRS-9, Slip op. at 6 (ARB Feb. 29, 2012).

The ARB nonetheless found that substantial evidence supported the ALJ’s conclusion that the Respondent demonstrated by clear and convincing evidence that it would have taken the same adverse action against the Complainant even had the Complainant not engaged in the protected activity of reporting the injury and seeking treatment for it. The ALJ had found that the Complainant violated the company’s blue-flag rule, and its zero-tolerance policy against workplace violation. The ARB noted that the ALJ had found the Complainant’s testimony unpersuasive and uncorroborated. The ALJ also found that, although there was temporal proximity between the protected activity and the adverse employment action, any inference of causation was negated by lack of evidence of disparate treatment (the company had also fired the co-worker, had a zero-tolerance policy on workplace violence, and had a history of dismissing employees who violated blue-flag rules). There had been hearing testimony indicating that the size of a bonus given to managers could be affected by the number of FRSA-reportable injuries, thereby giving a motive to discourage reporting. The ALJ, however, found no evidence that the Respondent had an attitude or workplace culture that discouraged reporting of injuries—in fact, all witnesses uniformly testified that the Respondent did not have such a policy or culture. The ALJ also found that all the witnesses testified that the Respondent’s blue-flag rules would not have allowed the Complainant to unlock the coworker’s track; that almost all witnesses testified that the Complainant did not have the authority to remove the coworker’s blue-flag on the day in question; and that the testimony of persons who witnessed the argument supported a finding that the Complainant had violated the zero-tolerance workplace violence policy.

VIOLATION OF ALJ’S SEQUESTRATION OF WITNESSES ORDER; ALJ HAS DISCRETION ON EVIDENTIARY RULINGS AND DID NOT ABUSE HIS DISCRETION IN CREDITING TESTIMONY OF WITNESS OVER WHICH THE WITNESS HAD PERSONAL KNOWLEDGE

In Rathburn v. The Belt Railway Co. of Chicago , ARB No. 16-036, ALJ No. 2014-FRS-35 (ARB Dec. 8, 2017), the Complainant filed a complaint alleging that the Respondent retaliated against him in violation of the FRSA whistleblower provision for reporting an injury and seeking medical treatment for the injury. The Complainant had sustained the injury during an altercation with a co-worker. On appeal, the Complainant argued that the ALJ erred in relying on testimony presented by the Respondent’s Director of Human Resources and General Counsel (“HR Director”), because the witness had evidently violated the ALJ’s order granting the Complainant’s motion to exclude all witnesses from the hearing room during the testimony of other witnesses. Specifically, the Complainant had called three witnesses about a previous altercation. The next day at the hearing, the Complainant called the HR Director and asked whether he had heard about the previous altercation, to which the HR Director responded that the first time he heard about it was yesterday. The Complainant argued before the ARB that the ALJ should have not given weight to the HR Director’s testimony and that the violation of the ALJ sequestration order cast doubt as to other testimony. The ARB noted that the Federal Rules of Evidence do not apply to FRSA hearings, found that 29 C.F.R. § 18.615 (sequestration request) does apply, and that pursuant to 29 C.F.R. § 18.602 a witness may only testify about matters on which the witness has personal knowledge. The ARB then stated that “[e]videntiary rulings are within the ALJ’s discretion and [the Complainant] has not shown how he was harmed or prejudiced as a result of [the HR Director’s] testimony or that the ALJ abused his discretion.” The ARB found that the ALJ had only credited testimony from the HR Director about which the witness had personal knowledge.

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In Williams v. Grand Trunk Western R.R. Co. , ARB Nos. 14-092, 15-008, ALJ No. 2013-FRS-33 (ARB Dec. 8, 2017), the ARB vacated its December 5, 2016 Final Decision and Order, and dismissed the case, consistent with the Sixth Circuit’s holding in Grand Trunk Western R.R. Co. v. U.S. Dep’t of Labor , 875 F.3d 821 (6th Cir. 2017), that 49 U.S.C. § 20109(c)(2) does not protect employees who sustain off-duty injuries. The ARB had held in its 2016 decision that Section 20109(c)(2) protected the Complainant from retaliation for following a treatment plan for non-work-related conditions.