DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION F -- BLACKLISTING
[Last updated Nov. 5, 2014]
- IV. Burden of proof and production
In Timmons v. CRST Dedicated Services, Inc. , ARB No. 14-051, ALJ No. 2014-STA-9 (ARB Sept. 29, 2014), the Complainant entered into a settlement of his 2012 STAA whistleblower complaint. The settlement included a non-disparagement clause. The Complainant later applied for a truck driver position with another employer, which received an employment verification report from a third party verification provider. That report stated that the Respondent had terminated the Complainant's employment because he did not meet company standards and was not eligible for rehire. The Complainant testified that a representative from the potential new employer told him that he would have been hired but for the reference in the report indicating that the Respondent had terminated him. The Complainant filed a STAA blacklisting claim and following a hearing the ALJ found that the Respondent violated the STAA.
On appeal, the Respondent argued that the Complainant had failed to show that the information in the employment verification report prevented him from obtaining employment. The ARB, applying Earwood v. Dart Container Corp. , 1993-STA-16 (Sec'y Dec. 7, 1994), indicated that the STAA requires a prophylactic rule prohibiting improper references to a complainant's protected activity. Because the negative information had been disseminated and on its face would affirmatively prevent and arguably did prevent the Complainant from finding employment, the ARB affirmed the ALJ's finding of blacklisting.
The Employer next argued that the unfavorable reference was unintentional and was caused by a computer system used for employment verifications. The ARB, however, found that substantial evidence supported the ALJ's finding that the circumstances reflected the company's desire to disseminate disparaging information about the Complainant and that it was "highly unusual" that the company did not have a mechanism to flag and remove the negative information after signing the settlement agreement.
[STAA Whistleblower Digest IV F]
BLACKLISTING; COMPLAINANT IS NOT REQUIRED TO ESTABLISH DAMAGES OR LOSS OF EMPLOYMENT
In Beatty v. Inman Trucking Management, Inc. , ARB No. 11-021, ALJ Nos. 2008-STA-20 and 21 (ARB June 28, 2012), the Complainants alleged that the Respondent blacklisted them by putting negative statements about the Complainants in a DAC report. A DAC report is a consumer report on the employment history of truck drivers. The ARB found that the ALJ erred by requiring the Complainants to prove that the negative DAC report actually led to negative consequences for them. Rather, the ARB quoted Earwood v. Dart Container Corp. , 1993-STA-16, slip op. at 3 (Sec'y Dec.7, 1994), in which the Secretary stated that "effective enforcement of the Act requires a prophylactic rule prohibiting improper references to an employee's protected activity whether or not the employee has suffered damages or loss of employment opportunities as a result." 1993-STA-16, slip op. at 3. The ARB noted that the Respondent put on the DAC report statements such as "excessive complaints, company policy violation, personal contact requested and other" and "Eligible for rehire: No." The ARB found that these statements "were disseminated and are on their face damaging information that would affirmatively prevent and arguably did prevent [the Complainants] from finding employment. Whether the negative statements caused any damages to the [Complainants] is immaterial based on the case law above. " Beatty , ARB No. 11-021, USDOL/OALJ Reporter at 7.
[STAA Whistleblower Digest IV F]
BLACKLISTING; RESPONDENT'S MOTIVATION FOUND TO BE CRITICAL TO CONTRIBUTING FACTOR ANALYSIS -- BUT RETALIATORY ANIMUS IS NOT REQUIRED TO PROVE RETALIATION
In Beatty v. Inman Trucking Management, Inc. , ARB No. 11-021, ALJ Nos. 2008-STA-20 and 21 (ARB June 28, 2012), the Respondent put negative statements about the Complainants in a DAC report. A DAC report is a consumer report on the employment history of truck drivers. The ALJ indicated in his decision that he believed the Respondent's safety director's testimony that the DAC report had nothing to do with the Complainants' alleged safety complaint. However, because the ALJ had erroneously found that the DAC report was not shown to be adverse action, and because the ALJ had not reconciled some of the conflicting evidence of record, the ARB remanded for the ALJ to make sufficient findings of fact. The ARB wrote: "Because [the supervisor] made the DAC report entry on the day that the [Complainants'] employment was terminated and because the DAC report contained information on why [the supervisor] decided to terminate the [Complainants'] employment, the reasons behind the terminations and the entry of the DAC report are related. � Thus, [the supervisor's] motivations for both are critical to the analysis on this issue." USDOL/OALJ Reporter at 7.
The ARB, however, clarified that a showing of animus is not required for a finding of causation, writing: "Animus can be evidence of retaliation, but it is not required to prove retaliation. Causation is established, with or without evidence of retaliatory animus, if the protected activity contributed to the adverse action. " USDOL/OALJ Reporter at 7-8.
[STAA Whistleblower Digest IV F]
BLACKLISTING; MERE SPECULATION INSUFFICIENT RESPONSE TO RESPONDENT'S AFFIDAVITS DENYING THAT IT HAD CONTACTED A SUBSEQUENT EMPLOYER ABOUT THE COMPLAINANT
In Jackson v. Smedema Trucking, Inc. , ARB Nos. 07-011, 08-052, ALJ Nos. 2005-STA-44, 2006-STA-36 (ARB Sept. 30, 2008), the Complainant alleged blacklisting on the ground that the Respondent or its attorney contacted a subsequent employer providing information that resulted in the Complainant's termination from the new employer. The Respondent moved for summary decision before the ALJ providing affidavits stating that neither the Respondent nor its attorney contacted the subsequent employer, and providing evidence suggesting that the subsequent employer fired the Complainant for falsifying his job application. In response, the Complainant did not address the merits of the motion, but made some technical objections to the form of the motion and requested additional discovery. The ALJ denied the request for additional discovery, but gave the Complainant more time to respond to the motion. The Complainant filed a one-page response that merely rehashed his earlier procedural objections and did not address the merits of the motion. The ALJ therefore granted summary decision. On appeal, the Complainant presented argument about the denial of additional discovery, but again did not address the merits. The ARB found that the ALJ had acted within the scope of his discretion when denying the request for additional discovery, and that mere speculation that someone from the Respondent contacted the subsequent employer was an insufficient response to the motion for summary decision.
IV F Orchestration of reference; loss of employment opportunity not required for recovery in blacklisting case
In Earwood v. Dart Container Corp., 93-STA-16 (Sec'y Dec. 7, 1994), the Secretary concluded that the ALJ erred in determining that a blacklisting complaint could not be supported where the Complainant orchestrated a reference request to determine the content of a reference. Questioning whether the record established a motivation to orchestrate a reference request, and pointing out that as far as the person who made the negative reference knew, the request for a reference was legitimate, the Secretary held that the fact that Complainant would not have lost an employment opportunity due to Dart's improper statement should not shield Dart from liability because its statement "'had a tendency to impede and interfere with [Complainant's] employment opportunities.'" Leideigh v. Freightway Corp., 88-STA-13 (Sec'y June 10, 1991), slip op. at 3.
The Secretary found that "effective enforcement of the Act requires a prophylactic rule prohibiting improper references to an employee's protected activity whether or not the employee has suffered damages or loss of employment opportunities as a result." Cf. Precision Electric and Int'l Bro. of Elec. Workers, Local Union 441, 1994 NLRB LEXIS 146 at *9 (Threatening to blacklist employees violates the National Labor Relations Act); Highland Yarn Mills, Inc. and Amalgamated Clothing and Textile Workers Union, 1993 NLRB LEXIS 473 at *66, aff'd and mod. on other grounds and enf'd, 313 NLRB 193 (1993) (same).
[STAA Whistleblower Digest IV F]
BLACKLISTING; POLICY OF NO-REFERENCE OR MINIMAL INFORMATION DOES NOT ESTABLISH THAT THE RESPONDENT WAS TRYING TO PREVENT THE COMPLAINANT FROM OBTAINING A NEW JOB; SUBJECTIVE FEELING BY WITNESS IS ALSO INSUFFICIENT
In Ramirez v. Frito-Lay, Inc. , ARB No. 06-025, ALJ No. 2005-STA-37 (ARB Nov. 30, 2006), PDF | HTM the Complainant alleged that, by refusing to provide information about his prior employment, the Respondent blacklisted him in violation of the STAA. The ARB, however, found that the Complainant failed to meet his burden of proving that the Respondent had provided information that prevented the Complainant from obtaining prospective employment with a new employer. The Respondent had initially followed a "no reference" policy, which only provided a toll-free number for a prospective employer to verify employment with the Respondent. The ARB found that the assistant who provided the toll-free number to the prospective employer did not know the Complainant and was not trying to keep him from getting a new job. When pressed by the prospective employer's lawyer, who knew that under new DOT regulations the Respondent was required to give more than just dates of employment, the Respondent's legal office provided confirmation that the Complainant had passed a drug screen test and had no reportable accidents. The Complainant was later hired by the new employer.
The Complainant admitted that he did not know if anyone from the Respondent was trying to prevent him from obtaining a new job. His only evidence consisted of a comment from a supervisor from his new employer that the Complainant must have done something pretty bad if the Respondent did not want to answer questions about his employment. The ARB found that a "gut feeling" does not prove blacklisting. Rather there must be evidence of a specific act.
[STAA Whistleblower Digest IV F]
BLACKLISTING; COMPLAINANT'S SUBJECTIVE FEELING THAT HE IS BEING BLACKLISTED IS INSUFFICIENT PROOF TO ESTABLISH BLACKLISTING
In Anderson v. Jaro Transportation Services , ARB No. 05-011, ALJ Nos. 2004-STA-2 and 3 (ARB Nov. 30, 2005), the Complainant claimed that after he was fired, a company that had contracted with his employer had provided information to a potential employer that he had been discharged, and he had not been hired as a result. The Complainant, however, did not know what the company had told the potential employer. The ARB held that the Complainant was required to show that a specific act of blacklisting had occurred and that "a whistleblower's subjective feeling that an employer blacklisted him is insufficient to establish blacklisting." USDOL/OALJ Reporter at 6 (footnote omitted). Therefore the ARB denied the Complainant's blacklisting complaint.
IV F Reference to former employee's discrimination suit in response to request for reference; motive
In Earwood v. Dart Container Corp., 93-STA-16 (Sec'y Dec. 7, 1994), the Secretary held that the ALJ erred in concluding that the Respondent did not act out of a discriminatory motive when it gave information about the Complainant's previous STAA case. The Secretary found that there was direct evidence of a retaliatory motive when the office manager of the facility that supervised the Complainant acknowledged providing information about the Complainant's previous STAA case to another trucking company. Specifically, the office manager stated that the Complainant "took us to court [filed an STAA complaint]" and the Secretary ruled against the Respondent; he conceded he did not like the fact that Complainant had filed a complaint against the Respondent and stated that he had no use for Complainant. In his hearing testimony the office manager admitted he made that comment because Complainant had filed a complaint against the Respondent. The Secretary cited in support of his ruling Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1164 (10th Cir. 1977), in which a former employer was found to have illegally retaliated against the charging party when it responded to a request for a reference by pointing out the former employee's Title VII charge against it and conceded that it was "not pleased" by that filing.
[ Editor's note: In his recommended decision, the ALJ had focused on his finding that, although the officer manager referred to the prior suit and his feelings about it, he did so only after being deliberately provoked by an inquiry into whether the Complainant was a troublemaker. The ALJ, believing that to support a claim of blacklisting, there must be an intent on the part of the former employer to hinder the complainant's employment opportunities, concluded based on the evidence that the officer manager did not have that intent. See Earwood v. Dart Container Corp., 93-STA-16 (ALJ Sept. 12, 1994), slip op. at 17-18, reversed on this issue (Sec'y Dec. 7, 1994). The Secretary's ruling, however, appears to be based on different inferences about motive drawn from the evidence, and arguably, the ALJ's view of the requirement of intent to hinder employment opportunities may not have been rejected.]