December 2019
Bell v. Bald Mountain Air Service , ARB No. 2019-0002, ALJ No. 2016-AIR-00016 (ARB Dec. 23, 2019) (Final Decision and Order Approving Settlement and Dismissing Complaint With Prejudice)
USDOL/OALJ Reporter
Casenote(s):
The ARB approved the parties’ settlement agreement and dismissed the administrative complaint.
Sharpe v. Supreme Auto Transport, ARB No. 2017-0077, ALJ No. 2016-STA-00073 (ARB Dec. 23, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
The ARB summarily affirmed the ALJ’s findings of fact and conclusions of law that—although Complainant had engaged in protected activity when he complained about overweight loads—Complainant did not establish contributory factor causation where the record did not show that the decision makers knew about the protected activity, and showed that Complainant was fired because he wanted to terminate his lease agreements with Respondent. The ARB also affirmed the ALJ’s alternative finding that Respondent proved by clear and convincing evidence that it would have repossessed Complainant’s truck and ended Complainant’s employment absent any protected activity—after receiving Complainant’s email about terminating his lease—because Complainant owed Respondent over $10,000 and because the $250,000 value of the truck was personally guaranteed by Respondent’s the Chief Operating Officer.
Barboza v. BNSF Railway Co., ARB No. 2018-076, ALJ No. 2017-FRS-00111 (ARB Dec. 19, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
The ARB adopted the ALJ’s Decision and Order in which the ALJ granted summary decision “because there was a failure of proof that the original complaint had been filed within 180 days after an adverse action by Respondent. 49 U.S.C. § 20109(d)(2)(A)(ii); 29 C.F.R. § 1982.103(d).” The ARB found that the facts were undisputed and that the ALJ properly granted summary decision.
Cheeley v. IESI Progressive Waste Solutions, ARB No. 2019-0019, ALJ No. 2017-STA-00032 (ARB Dec. 19, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
The ARB adopted the ALJ’s Decision and Order in which the ALJ found that, Complainant engaged in protected activity, the sole reason his employment was terminated for consistent inability to complete work in the time allotted.
Peck v. Nuclear Regulatory Commission, ARB No. 2017-0062, ALJ No. 2017-ERA-00005 (ARB Dec. 19, 2019) (en banc) (Final Decision and Order)
Casenote(s):
[Nuclear and Environmental Digest X M]
SOVEREIGN IMMUNITY; UNITED STATES HAS NOT WAIVED SOVEREIGN IMMUNITY IN REGARD TO ERA WHISTLEBLOWER COMPLAINANTS; ALJ PROPERLY DISMISSED ERA COMPLAINT NAMING NRC AS THE RESPONDENT
In Peck v. Nuclear Regulatory Commission, ARB No. 2017-0062, ALJ No. 2017-ERA-00005 (ARB Dec. 19, 2019) (en banc), the ARB held, en banc, that “the whistleblower protection provision of the ERA [42 U.S.C. § 5851] does not contain an unequivocal expression of intent to waive sovereign immunity, and as such, the United States has not waived sovereign immunity for ERA whistleblower claims.” Slip op. at 12. The ARB thus affirmed the ALJ’s dismissal of Complainant’s ERA complaint filed against the NRC based on sovereign immunity. One member of the Board dissented.
Johansen v. Illinois Central Railroad Co., ARB No. 2020-0012, ALJ No. 2019-FRS-00063 (ARB Dec. 13, 2019) (Order Dismissing Complaint)
Casenote(s):
The ARB dismissed Complainant’s administrative FRSA complaint because he filed a de novo complaint in the U.S. District Court for the Northern District of Mississippi
Lynch v. Beaulieu Group, LLC, ARB No. 2017-0021, ALJ No. 2016-STA-00026 (ARB Dec. 12, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
[STAA Digest II P]
SUMMARY DECISION; WHERE ALJ PROVIDED NOTICE TO COMPLAINANT THAT HE WAS REQUIRED TO PRESENT EVIDENCE DEMONSTRATING EXISTENCE OF GENUINE ISSUE OF MATERIAL FACT IN RESPONSE TO RESPONDENT’S MOTION FOR SUMMARY DECISION, AND THAT FAILURE TO DO SO COULD RESULT IN DISMISSAL, AND IN RESPONSE COMPLAINANT ONLY FILED A STATEMENT WITH NO SUPPORTING EVIDENCE, THE ARB AFFIRMED ALJ’S GRANT OF SUMMARY DECISION AS A MATTER OF LAW
[STAA Digest II M]
COMPLAINANT’S ALLEGATION OF GENERAL MALFEASANCE BY PRIOR ATTORNEY, RESPONDENT’S ATTORNEY AND ALJ FOUND TOO VAGUE AND UNSUPPORTED TO BE CONSIDERED BY ARB ON APPEAL
In Lynch v. Beaulieu Group, LLC, ARB No. 2017-0021, ALJ No. 2016-STA-00026 (ARB Dec. 12, 2019) (per curiam), Respondent filed a motion for summary decision. The ALJ issued a notice to Complainant that “(1) when a respondent moves for summary decision because of a lack of evidence regarding an essential element of the complainant’s case, the complainant is then required under Fed. R. Civ. P. 56 and 29 C.F.R. § 18.72 to present evidence demonstrating the existence of a genuine issue of material fact, and (2) if the complainant fails to present such evidence, then summary decision may be entered and the complainant’s claims dismissed.” Slip op. at 2 (citation to ALJ decision omitted). Complainant submitted a statement in response, but did not submit any evidence establishing the existence of a genuine issue of material fact showing protected activity prior to his discharge, or evidence that would rebut Respondent’s evidence that Complainant was behind on his log books and that Respondent had prohibited him from driving until he completed them. Complainant failed to do so within the time allotted and then stopped coming to work. The ALJ granted summary judgment as a matter of law. On appeal, the ARB affirmed the ALJ’s decision, finding that Complainant had not raised a genuine issue of material fact as to whether anyone involved in his termination knew of the alleged protected activity, and that Complainant failed to identify errors of law or fact to show that the ALJ’s decision was wrong. Complainant alleged a problem with his address and an apparent administrative error made by the ALJ and Respondents’ counsel—but the ARB found any such error had not prevented Complainant from participating in the case. Complainant also alleged general malfeasance by his prior attorney, Respondent’s attorney and the ALJ—but the ARB found that such vague and unsupported allegations could not be evaluated, and therefore it declined to consider them.
Shi v. Moog Inc., ARB No. 2017-0072, ALJ No. 2016-AIR-00020 (ARB Dec. 5, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
AIR21 DOES NOT APPLY EXTRATERRITORIALLY; KEY FACTOR FOR DECIDING WHETHER A CLAIM IS DOMESTIC OR EXTRATERRITORIAL IN APPLICATION IS THE LOCATION OF THE EMPLOYEE’S PERMANENT OR PRINCIPAL WORKSITE
In Shi v. Moog Inc., ARB No. 2017-0072, ALJ No. 2016-AIR-00020 (ARB Dec. 5, 2019) (per curiam), the ALJ dismissed Complainant’s AIR21 complaint because its adjudication would require impermissible extraterritorial reach. On appeal, the ARB looked to the Supreme Court’s decision in Morrison v. Nat'l Australia Bank, Ltd., 561 U.S. 247 (2010) and the ARB’s SOX decision applying Morrison in Hu v. PTC Inc., ARB No. 2017-0068, ALJ No. 2017-SOX-00019 (ARB Sept. 18, 2019). The ARB noted that the Morrison analysis has two steps: “(1) whether the statute at issue extends extraterritorially and, if not, (2) whether the activity comprising the focus of the statute occurred within the United States or outside of it.” Slip op. at 3 (citations omitted). The ARB further noted: “If the activity identified under Step 2 occurred within the U.S., then there is a permissible domestic application of the statute. . . . lf the activity occurred outside the U.S., then there is an impermissible extraterritorial application and the complaint must be dismissed.” Id. at 3-4 (citations omitted).
The ARB reviewed the text of AIR21 and determined that “the employee protection provisions of AIR 21 are not extraterritorial.” Id. at 4. The ARB thus ruled that “to allow the adjudication of the complaint before us, it must be a domestic application of the employee protection provision of AIR 21.” Id. The ARB determined that, although the overarching purpose of AIR21 may be air carrier safety, the primary focus of the employee protection provisions of AIR21 “are necessarily connected to the employee's compensation, terms, conditions, or privileges of employment.” Id. at 5. Accordingly, the ARB determined that the key factor for deciding whether a claim is domestic or extraterritorial in application is the location of the employee’s permanent or principal worksite—and that the location of other conduct is less critical, if not irrelevant. The ARB stated:
[A]n AIR 21 complaint concerning an adverse action that affects an employee at a foreign principal worksite does not become territorial because the alleged misconduct occurred in the U.S., or because it had, or would have, effects on U.S. air carrier safety, or because the alleged retaliatory decision was made in the U.S.
Id. In the instant case, it was undisputed that:
. . . Complainant's primary worksite was in China, he was employed under a Chinese contract, he was paid in Chinese currency, and his direct employer was a Chinese corporation. The only alleged domestic contacts in this matter are that Complainant 1) took a few work-related trips to the U.S., 2) believes that some of the people responsible for the adverse action taken against him may be U.S. citizens, and 3) complained about counterfeit parts that were used to manufacture aircraft in the U.S. which were flown in the U.S.
Id. The ARB stated that such allegations, even if true, would not by themselves create a domestic application of AIR21. The ARB thus affirmed the ALJ’s dismissal of the complaint.
The ARB noted that the FAA, which has primary responsibility for protecting aviation safety, had been notified of and had investigated the matter.