USDOL/OALJ Law Library: STAA Whistleblower Digest, DIVISION IV G -- CONTRIBUTING FACTOR

USDOL/OALJ STAA Whistleblower Digest
DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION G -- CONTRIBUTING FACTOR

[Last updated Nov. 5, 2014]

IV. Burden of proof and production

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G. Contributing Factor

WEIGHING OF EVIDENCE ON CONTRIBUTING FACTOR ELEMENT; NOTICE OF EN BANC REVIEW

In Powers v. Union Pacific Railroad Co. , ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Oct. 17, 2014), , the ARB provided notice that it will address, en banc, the "contributory factor" analysis addressed in Fordham v. Fannie Mae , ARB No. 12-061, ALJ No. 2010-SOX-51 (ARB Oct. 9, 2014). Although Powers is a FRSA case, and Fordham is a SOX case, both are analytically grounded in the burdens of proof specified in AIR21, and therefore are of importance to any whistleblower cases that also reference the AIR21 burdens of proof.

[STAA Digest IV A 1]
UNDER 2007 AMENDMENTS TO STAA�S BURDEN OF PROOF FRAMEWORK, THREE-STEP MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK IS NO LONGER APPLICABLE; THE STAA AMENDMENTS EMPLOY A TWO-STEP ANALYTICAL PROCESS: (1) WHETHER THE COMPLAINANT HAS MET HIS BURDEN OF ESTABLISHING THAT PROTECTED ACTIVITY WAS A "CONTRIBUTING FACTOR," AND IF SO, (2) WHETHER THE RESPONDENT CAN ESTABLISH BY "CLEAR AND CONVINCING EVIDENCE," THAT IT WOULD HAVE TAKEN THE SAME ADVERSE PERSONNEL ACTION HAD THERE BEEN NO PROTECTED ACTIVITY

In Beatty v. Inman Trucking Management, Inc. , the ALJ applied the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) Title VII burden shifting paradigm to the Complainants� STAA blacklisting complaint, and denied the complaint based on his finding that the Complainants had not established by a preponderance of the evidence that the Respondent's articulated, legitimate non-discriminatory reason for filing negative DAC reports about the Complainants was pretext. On appeal, the ARB found that the McDonnell Douglas burden of proof framework was supplanted by the 2007 amendments to the STAA adopted as part of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, 121 Stat. 266 (Aug. 7, 2007). That Act imposed the legal burdens of proof and framework imposed by AIR21:

Under the AIR 21 standard, a new burden of proof framework is established in which the complainant is initially required to show by a preponderance of the evidence that protected activity was a "contributing factor" in the alleged adverse personnel action. Should the complainant meet the "contributing factor" burden of proof, the burden shifts to the employer who is required, in order to overcome the complainant's showing, to prove by "clear and convincing evidence" that it would have taken the same adverse action in the absence of the protected conduct.

USDOL/OALJ Reporter at 8 (footnotes omitted). The ARB described the framework:

   The AIR 21 burden of proof framework is far more protective of complainant-employees and much easier for a complainant to satisfy than the McDonnell Douglas standard. As the Federal Circuit explained in Marano v. Dep't of Justice , the "contributing factor" standard was "intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a 'significant�, �motivating�, 'substantial�, or �predominant� factor in a personnel action in order to overturn that action." The complainant need not demonstrate the existence of a retaliatory motive on the part of the employer taking the alleged prohibited personnel action, that the respondent's reason for the unfavorable personnel action was pretext, or that the complainant's activity was the sole or even predominant cause. The complainant "need only show that his protected activity was a �contributing factor� in the retaliatory discharge or discrimination." A "contributing factor," the ARB has repeatedly noted, is "any factor which, alone or in combination with other factors, tends to affect in any way the outcome of the [adverse personnel] decision." Thus, for example, a complainant may prevail by proving that the respondent's reason, "while true, is only one of the reasons for its conduct, and another [contributing] factor is [the complainant's] protected activity." Moreover, the complainant can succeed by providing either direct proof of contribution or indirect proof by way of circumstantial evidence.

   If the complainant proves that his/her protected activity was a contributing factor in the unfavorable personnel action, the burden shifts to the respondent, in order to avoid liability, to prove "by clear and convincing evidence" that it would have taken the same adverse action in any event. "The �clear and convincing evidence� standard is the intermediate burden of proof, in between �preponderance of the evidence� and �proof beyond a reasonable doubt.� To meet the burden, the employer must show that �the truth of its factual contentions is highly probable.�" Clear and convincing evidence is "evidence indicating that the thing to be proved is highly probable or reasonably certain."

USDOL/OALJ Reporter at 8-9 (footnotes omitted). The ARB acknowledged that it had sanctioned continued use of the Title VII analytical framework in past decisions, but concluded that use of the Title VII methodology had caused confusion and was legal error on its part. The ARB stated that federal appellate courts have recognized that "the statutory adoption of the new burdens of proof in several whistleblower case types has been was coupled with a new analytical framework." Id . at 10. See Stone & Webster Eng�g Corp. v. Herman , 115 F.3d 1568 (11th Cir. 1997) (ERA recodification); Allen v Administrative Review Board , 514 F.3d 468 (5th Cir. 2008) (analyzing independent burden-shifting framework of SOX and AIR21); Araujo v. New Jersey Transit Rail Operations, Inc. , 708 F.3d 152, 157 (3d Cir. 2013) (in AIR 21 Congress set forth, in place of the McDonnell Douglas burden-shifting framework, a two-part burden-shifting test); Bechtel v. Admin. Review Bd., U.S. Dep't of Labor , 710 F.3d 443, 448 (2d Cir. 2013) (in SOX cases, burden-shifting scheme has no basis in relevant law or regulation). The Board stated:

    The Title VII framework imposes a three-step analytical process, beginning by requiring from the complainant an initial "prima facie" showing which, if met, is followed by a rebuttal showing by the respondent which, if met, returns the ultimate burden of proof again to the complainant. The STAA amendments instead impose a two-step analytical process that focuses first on whether the complainant has met his burden of establishing that protected activity was a "contributing factor," which entitles the complainant to relief unless the respondent can establish in rebuttal, by "clear and convincing evidence," that it would have taken the same adverse personnel action had there been no protected activity.

USDOL/OALJ Reporter at 10.

[STAA Digest IV G]
CONTRIBUTING FACTOR; APOLOGY BY MANAGER TO COMPLAINANTS INDICATING THAT HE WAS MISTAKEN ABOUT THE VALIDITY OF THEIR SAFETY COMPLAINT WHEN HE MADE DEFAMATORY DAC ENTRIES ABOUT THE COMPLAINANTS, AND STATEMENT THAT HE AGREED TO REMOVE THE ENTRIES, DOES NOT PROTECT THE RESPONDENT FROM LIABILITY UNDER THE STAA; "MISTAKEN BUT SINCERE" IS NOT A DEFENSE UNDER THE STAA

In Beatty v. Inman Trucking Management, Inc. , ARB No. 13-039, ALJ Nos. 2008-STA-20 and 21 (ARB May 13, 2014), the ARB found that there was uncontroverted evidence that the Complainants� protected activity was a contributing factor in the Respondent's decision to place negative information in the Complainants� DAC report. The ARB pointed to the temporal proximity between the Complainants� protected complaints about exhaust leaks and a faulty muffler and the negative DAC reports ten days later. Moreover, the ALJ had cited the Respondent's safety director's testimony "that nine out of ten times the Beattys complained about the cleanliness of the trucks and not about safety," in explaining his entry of "excessive complaints" on the DAC report. The ARB found that this was an admission permitting the inference that the "excessive complaints" entry on the DAC report included complaints about exhaust leaks. And most importantly, the ARB pointed to documentation of the safety manager's apology to the Complainants and agreement to remove the negative information on their DAC reports. The safety manager indicated that upon further investigation, he learned that the exhaust leak were valid. The ARB wrote:

The fact that Grover, upon learning that the Beattys� exhaust leak complaints were valid, apologized and removed the offending entries from their DAC report constitutes tacit acknowledgment on Grover's part that the Beattys� exhaust leak complaints were a factor in Grover's decision to submit the negative entries. However, that Grover believed at the time he submitted the defamatory DAC report that the Beattys were lying did not make their complaints about an exhaust leak any less protected.[76]

[76] Elbert v. True Value Co. , ARB No. 07-031, ALJ No. 2005-STA-036, slip op. at 3 n.5 (ARB Nov. 24, 2010) ("[A] �mistaken but sincere� defense has no place in STAA jurisprudence; an employer may not escape liability for discharging an employee for protected activity merely by claiming a "mistaken but sincere" belief that the employee's safety complaint was groundless. An employee's complaint based upon a reasonable, albeit mistaken, belief that a potential or actual violation of a commercial motor vehicle safety regulation under 49 U.S.C.A. § 31105(a)(1)(A)(i) has occurred is sufficient to establish protected activity. See Guay v. Burford's Tree Surgeons, Inc. , ARB No. 06-131, ALJ No. 2005-STA-045, slip op. at 7 (ARB June 30, 2008); Harrison v. Roadway Express, Inc. , ARB No. 00-048, ALJ No. 1999-STA-037, slip op. at 6 (ARB Dec. 31, 2002), aff�d sub nom Harrison v. Admin. Review Bd. , 390 F.3d 752, 759 (2d Cir. 2004) (citing Dutkiewicz v. Clean Harbors Envtl. Servs., Inc. , ARB No. 97-090, ALJ No.1995-STA-034, slip op. at 3-4 (ARB Aug. 8, 1997)), cited with approval in Clean Harbors Envtl. Servs., Inc. , 146 F.3d 12, 19 (1st Cir. 1998). Accordingly, protection is not dependent upon the employer's belief in the accurateness of the employee's complaint. The primary consideration is assuring the right of employees to raise concerns, not the accuracy of those complaints. See Passaic Valley Sewerage Comm�rs v. U. S. Dep't of Labor , 992 F. 2d 474, 478 (3d Cir. 1993)").

USDOL/OALJ Reporter at 12 and n. 76.

[STAA Digest IV G]
CONTRIBUTING CAUSE; PROTECTED REPORT OF AIR LINE PROBLEM FOUND TO BE INEXTRICABLY INTERTWINED WITH REFUSAL TO DRIVE AND SUBSEQUENT TERMINATION, EVEN THOUGH WORK REFUSAL STEMMED IN LARGE PART FROM CONCERN ABOUT THE WEATHER

In Tablas v. Dunkin Donuts Mid-Atlantic , ARB No. 11-050, ALJ No. 2010-STA-24 (ARB Apr. 25, 2013), the Complainant, and experienced driver, told the dispatcher that he was apprehensive about an assigned trip to Massachusetts because of winter weather, but was told that he must make the attempt and that there was no bad weather at the depot in New Jersey. Later the Complainant asked not to be required to complete the trip because of the weather, but was told that no other drivers had reported problems and that if he encountered problems company policy was to pull over at the next safe place. The Complainant finished the first leg of his dispatch, but realizing that he left his EZ pass in his regular truck, returned to the depot to pick it up. Upon making two sharp right turns in the depot, the rig's air lines became unhooked. The Complainant prepared a report and submitted it to the dispatcher. The dispatcher called for a repair. The Complainant asked if he could come back in the morning to continue the trip after the repair, stating that he would not be getting to the destination in Massachusetts any later considering the state of the roads. When he returned in the morning, he was told that another driver had transported the load, and that he could go home for the day. A few days later, the Complainant was fired for refusing to complete the run.

Following a hearing, the ALJ determined that the Complainant's refusal to drive based on the air lines problem was not protected activity because, although the Complainant reported the problem, there was no evidence that he sought to have it corrected and was refused. The ALJ also found that the refusal to drive because of the weather conditions was not protected activity. The ALJ found that some earlier complaints about overweight loads were protected activity, but that there had been no causal connection between that activity and his termination.

On appeal, the ARB focused on the refusal to drive based on the problem with the air lines, and did not reach the refusal to drive based on the weather. The ARB found the ALJ erred in her analysis. The ARB explained:

   Tablas argued below that his complaints were protected under Section 31105(a)(1)(B)(i) and (B)(ii). Subsection (B)(i) protects an employee when "the employee refuses to operate a vehicle because the operation violates a regulation, standard or order of the United States related to commercial motor vehicle safety or health." 49 U.S.C.A. § 31105(a)(1)(B)(i). Subsection (B)(ii) protects an employee who refuses to drive because of a reasonable apprehension of serious injury to himself or the public because of the vehicle's unsafe condition, and requires a showing that the employee "sought from the employer, and been unable to obtain, correction of the unsafe condition." 49 U.S.C.A. § 31105(a)(1)(B)(ii), (a)(2). STAA's work refusal clause thus protects two categories of work refusals, commonly referred to as the "actual violation" and "reasonable apprehension" categories. Pollock v. Continental Express, ARB Nos. 07-073, 08-051; ALJ No. 2006-STA-001, slip op. at 8 (ARB Apr. 7, 2010). Under the actual violation category, i.e., subsection (B)(i), the refusal to drive is protected where operating a vehicle would have violated a motor vehicle regulation, standard, or order. Id. Unlike subsection (B)(ii), which requires the complainant to have requested and been denied correction of the unsafe condition, no other showing is required under (B)(i).

USDOL/OALJ Reporter at 6 (footnote omitted). The ARB found that the facts of the case satisfied Section (B)(i), and therefore the Complainant engaged in protected activity.

The ARB went on to find that under the "contributing factor" test, although the work refusal stemmed in part from the Complainant's concerns about the weather, the reporting of the air lines problem contributed to, and was inextricably intertwined with the Complainant's termination in violation of the STAA.

The ARB remanded for the ALJ to determine "whether the company can show, by clear and convincing evidence, that it would have taken the same action against Tablas absent the protected activity.... In making this determination, the record evidence in this case appears to show no basis for termination other than Tablas' refusal to drive the truck the night of December 13, 2007, which we have determined violated the Act since the refusal was protected activity under section 31105(a)(1)(B)(i). Nonetheless, we remand to the ALJ to make that determination in the first instance." USDOL/OALJ Reporter at 9 (citation omitted).

[STAA Digest IV G]
CONTRIBUTING FACTOR; QUALCOMM MESSAGE THAT INCLUDED BOTH PROTECTED AND NON-PROTECTED COMMUNICATIONS IS PRESUMED TO HAVE CONTRIBUTED TO ADVERSE ACTION � HOWEVER � THAT PRESUMPTION WAS OVERCOME BY SUBSTANTIAL EVIDENCE SHOWING THAT COMPLAINANT WAS TERMINATED BASED ON RESPONDENT�S CONCLUSION THAT COMPLAINANT HAD BECOME A RISK TO THE PUBLIC AND HIMSELF, THE COMPLAINANT�S ADMISSION THAT HE HAD BEEN VIOLATING THE HOURS OF SERVICE POLICY, AND THE DISREPECTFUL LANGUAGE OF THE MESSAGE

In Villa v. D.M. Bowman, Inc. , ARB No. 08-128, ALJ No. 2008-STA-46 (ARB Aug. 31, 2010), a STAA case arising under the STAA as amended by the Implementing Recommendations of the 9/11 Commission Act of 2007, the ARB affirmed the ALJ's finding that the Complainant did not prove a causal connection between his alleged protected activity and his discharge, but stated the legal conclusion more precisely as a failure by the Complainant to prove that his alleged protected activity was a "contributing factor" in his discharge. The ARB found the dispositive evidence undisputed that the Complainant had not communicated with the Respondent to inform it that he was not delivering the load, and had returned the truck to the terminal without telling anyone (even though the terminal was always staffed). Moreover, although the Complainant testified that the truck was malfunctioning, continuing to drive it without contacting the shop risked permanent damage to the engine. The ARB thus found that the Complainant's claim that he would have violated the hours of service regulation was not a contributing factor in his termination.