Secretarial and Administrative Review Board Decisions - December 2023

Administrative Review Board Decisions

The following case summaries were created by the Administrative Review Board staff.

Printz v. STS Aviation Group, ARB No. 2022-0045, ALJ No. 2021-AIR-00013 (ARB Dec. 15, 2023) (Decision and Order Vacating in Part and Remanding)

EMPLOYER-EMPLOYEE RELATIONSHIP; JOINT EMPLOYMENT; CONTRIBUTING FACTOR

In Printz v. STS Aviation Group, ARB No. 2022-0045, ALJ No. 2021-AIR-00013 (ARB Dec. 15, 2023), the ARB vacated, in part, and remanded the ALJ's Decision and Order Denying Relief. STS Aviation Group (STS) is a third-party maintenance provider to Frontier Airlines, Inc. (Frontier). STS's aircraft maintenance technicians (AMTs) handled all basic aircraft maintenance activities for Frontier's aircraft at the Orlando International Airport (MCO). Complainant worked for STS as an AMT, and during his entire employment with STS, Complainant worked exclusively at MCO on Frontier aircraft.

Prior to his protected activity, Complainant was involved in multiple incidents, prompting complaints to Frontier's Southeast Senior Manager for Regional Line Maintenance, who was based at MCO. Frontier's Southeast Senior Manager for Regional Line Maintenance primarily interacted with STS through STS's top management official (TMO) at its Orlando facility, who in turn was Complainant's supervisor. Frontier's Southeast Senior Manager forwarded these complaints regarding Complainant to STS's TMO.

Sometime after these incidents, STS's Director of Maintenance and Southeast Regional Director (Director of Maintenance) visited MCO while Complainant was working. During this visit, Complainant raised multiple complaints; three of these complaints were found by the ALJ to be protected activity under AIR21. After their conversation, STS's Director of Maintenance called STS's TMO and discussed at least one of these complaints.

The very next day, Complainant was working and took his break in MCO's terminal. Frontier's Southeast Senior Manager was also at the terminal and witnessed Complainant taking his break. Frontier's Southeast Senior Manager felt Complainant was taking a prolonged break, equivalent to stealing, and eventually asked STS's TMO to have STS remove Complainant from working on Frontier aircraft. Afterwards, STS's TMO called Complainant and advised that he was "tired of hearing [Complainant's] name and that [he] 'needed to retire or maybe he would just take it for me.'" The following day, STS's TMO called Complainant in his office, where two Frontier personnel was present, and terminated Complainant's employment.

EMPLOYER-EMPLOYEE RELATIONSHIP; AIR21 DOES NOT REQUIRE AN EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN THE ALLEGED RETALIATOR AND THE WHISTLEBLOWER

Complainant pursued an AIR21 retaliation claim against both STS and Frontier. The ALJ relieved Frontier of potential liability, concluding that "there must be an employer-employee relationship between the air carrier or contractor or subcontractor employer who allegedly violates the Act and the employee it subjects to discharge or discrimination."

The ARB held that the ALJ erred in finding that that there must be an employer-employee relationship between the air carrier who allegedly violates AIR21 and the employee it subjects to discharge or discrimination. The ARB explained that direct or joint employer liability is just one basis on which an air carrier can be liable for the acts of its contractors (or vice versa). The ARB explained that the plain reading of the text of AIR21's anti-discrimination statute (49 U.S.C. § 42121) does not require that an employer-employee relationship exist between an air carrier and an employee of a contractor or subcontractor because it is clear that an "employee" protected by AIR21 is an employee of any of the entities listed in the first part of the sentence (an air carrier or contractor or subcontractor) even if the employee does not have a direct employer-employee relationship with the alleged retaliator. The ARB added that the plain reading of the statute was supported by the broad regulatory definition of "employee," was consistent with the Secretary's interpretation of almost identical language in Section 11(c) of the Occupational Safety and Health Act of 1970 and other statutes, and was supported by the legislative history of AIR21 generally and Section 42121 specifically.

Although the ARB determined that Frontier could potentially be liable although it did not have an employer-employee relationship with Complainant, the ARB determined that liability did not attach to Frontier in this case because substantial evidence supported the ALJ's finding that Frontier's Southeast Senior Manager did not have knowledge about Complainant's protected activity at the time he requested that Complainant stop servicing Frontier aircraft.

JOINT EMPLOYMENT; JOINT EMPLOYER TEST may be ALTERNATIVE METHOD FROM THE PLAIN TEXT OF AIR21'S ANTIDISCRIMINATION PROVISION TO DETERMINE AIR CARRIER LIABILITY UNDER AIR21

The ARB explained that although relying upon the plain reading of the statute can determine air carrier liability in many cases, examining joint employer status is another way that liability can attach to an air carrier or contractor. The ARB explained whether to rely on the plain text of AIR21's antidiscrimination provision or apply the joint employer test to determine air carrier liability depends on the particular facts and circumstances of each case. The ARB explained that, when applying the joint employer test under AIR21, the economic realities test developed under the Fair Labor Standards Act (FLSA) and Migrant and Seasonal Workers' Protection Act (MSPA) worker protection statues should be used, rather than a narrow control test. The ARB explained that when applying the economic realities test, the factfinder must determine whether a potential employee was economically dependent on a potential employer by weighing various factors.

In this case, although the ALJ recognized the economic realities test as the proper approach to analyzing joint employment, the ALJ, in applying the economic realities test articulated by the Eleventh Circuit, did not qualitatively assess whether Complainant was economically dependent on Frontier. Instead, the ALJ elevated Frontier's power to control over other factors. Although control over the power to hire and fire and set wages is relevant, the ARB stated that it should not be elevated over other factors, such as whether the individual's work is an integral part of the air carrier's business, or whether the work is performed in the putative employer's facilities. The ARB remanded to the ALJ to qualitatively apply all the factors to assess Complainant's economic dependency on Frontier.

CONTRIBUTING FACTOR; THE ALJ'S CONTRIBUTING FACTOR ANALYSIS DID NOT DEMONSTRATE THAT THE ALJ CONSIDERED OR WEIGHED ALL THE EVIDENCE IN THE RECORD

The ARB vacated the ALJ's finding that Complainant's protected activity was not a contributing factor to the termination of his employment, explaining that the ALJ's finding was not adequately explained in light of facts in the record. The ARB explained that the ALJ's contributing factor analysis failed to address and weigh certain evidence in the record (e.g., the temporal proximity between Complainant's protected activity, STS TMO's statement that he was "tired of hearing [Complainant's] name", and the termination of Complainant's employment; STS's choice to bypass its progressive disciplinary process and instead proceed immediately to termination), and its potential impact on a contributing factor analysis that may have weighed in Complainant's favor in establishing by a preponderance of the evidence that his protected activity contributed to the termination of his employment. The ARB remanded to the ALJ to reconsider his contributing factor finding, taking into account certain evidence that he did not consider in his first analysis.

Moreb v. Kerry Inc., ARB No. 2023-0048, ALJ No. 2023-FDA-00014 (ARB Dec. 14, 2023) (Decision and Order of Remand)

TIMELINESS MAY NOT BE RAISED SUA SPONTE; A TRIBUNAL MAY NOT DISMISS CLAIMS SUA SPONTE OVER VIOLATIONS OF NON-JURISDICTIONAL MANDATORY CLAIMS-PROCESSING RULES

In Moreb v. Kerry Inc., ARB No. 2023-0048, ALJ No. 2023-FDA-00014 (ARB Dec. 14, 2023), the ARB reversed the ALJ's Decision and Order Dismissing Claim for Untimely Objections, and remanded the case to the ALJ for further proceedings. Complainant filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging Respondent violated the employee protection provisions of the Food Safety Modernization Act (FSMA). OSHA issued a final determination letter in response to Complainant's complaint finding no cause to determine Complainant had suffered retaliation and dismissed the complaint. OSHA advised that the dismissal would become final unless Complainant filed an objection and requested a hearing within thirty days of her receipt of the determination letter based on a regulatory deadline (29 C.F.R. § 1987.106(a)). Complainant filed her objections and request for hearing three days after the deadline expired.

The case was assigned to an ALJ who issued an Order for Complainant to Show Cause why her claim should not be dismissed. Complainant filed a timely response and Respondent did not submit a response to the ALJ's Order. Thereafter, the ALJ issued a Decision and Order Dismissing Claim for Untimely Objections, finding that Complainant had missed the thirty-day regulatory deadline for filing an objection to OSHA's determination.

In reversing the ALJ's dismissal of Complainant's claim, the ARB concluded that OSHA's implementing regulation establishing the thirty-day deadline to object to a preliminary order and request a hearing under FMSA is a non-jurisdictional mandatory claims-processing rule. The ARB explained the difference between a non-jurisdictional mandatory claims-processing rule (often established by agency regulation instead of congressional action, which does not create jurisdictional preconditions for filing or continuing litigation) and jurisdictional provisions (often a congressional requirement that is reserved for prescriptions delineating the classes of cases a court may entertain and the persons over whom the court may exercise adjudicatory authority), and that the distinction between the two is dispositive as to whether a court may consider them at any point in the litigation and/or consider them sua sponte. The ARB explained that that an objection based on a non-jurisdictional mandatory claims-processing rule may be enforced if a party properly raises it, but is normally per se forfeited if a party does not timely raise it, and that tribunals are generally prohibited from raising noncompliance with them on their own accord, unlike jurisdictional provisions.

After concluding that OSHA's implementing regulation establishing the thirty-day deadline to object to a preliminary order and request a hearing under FMSA is a non-jurisdictional mandatory claims-processing rule, the ARB determined that the ALJ erred by sua sponte dismissing Complainant's claim without first requiring Respondent to at least argue noncompliance with 29 C.F.R. § 1987.106(a) as an affirmative defense.