December 30, 2008
AIR21 PROTECTED ACTIVITY; COMPLAINANT'S LACK OF REASONABLE BELIEF IN VERACITY OF ALLEGATION
CONTRIBUTING CAUSE; EVIDENCE THAT SOLE MOTIVATING FACTOR WAS FALSE ALLEGATION MADE BY COMPLAINANT
In Walker v. USDOL , No. 07-72072 (9th Cir. Dec. 4, 2008) (unpublished) (case below ARB No. 05-028, ALJ No. 2003-AIR-17), the Ninth Circuit found that the ARB did not err in affirming the ALJ's finding that the Complainant had not engaged in protected activity when he called the company employee hotline to make an allegation against three supervisors where the allegation was false and the Complainant did not have a reasonable belief in its veracity. While the Complainant may have engaged in other protected activity, the ARB did not err in concluding that substantial evidence supported the ALJ's finding that the falsehood solely motivated the termination.
EVIDENCE; ALJ'S EXCLUSION OF TESTIMONY OF COWORKER WHOSE TESTIMONY WAS INTENDED TO SHOW A PATTERN OF RETALIATION WHERE THAT COWORKER WAS NOT SIMILARLY SITUATED
In Barker v. Administrative Review Board, USDOL , No. 08-60128 (5th Cir. Dec. 8, 2008) (per curiam) (unpublished) (case below ARB No. 05-058, ALJ No. 2004-AIR-12), the Petitioner contended that the ARB was arbitrary and capricious in affirming the ALJ's decision to bar portions of a coworker's testimony that described the coworker's theory that he had been fired in retaliation for reporting the company's unsafe aviation practices to the FAA. The Petitioner asserted that the coworker's excluded testimony would have established a pattern of retaliatory firings. The Fifth Circuit, however, observed that the coworker was a manager who was fired individually months earlier, whereas the Petitioner was one of six pilots (out of a total of 10) who were laid off just months before the company went under. The court found that the ARB was not acting in an arbitrary and capricious manner when upheld the ALJ's conclusion that the coworker was not similarly situated to the Petitioner, rendering the subject portion of the coworker's testimony irrelevant. The ALJ had permitted the coworker to provide other relevant testimony.
CLEAN AIR ACT [Nuclear and Environment Digest IX I]
TIMELINESS OF PETITION FOR REVIEW BY THE COURT OF APPEALSIn Knox v. USDOL , No. 07-2116 (4th Cir. Nov. 20, 2008) (unpublished) (case below ARB No. 07-105, ALJ No. 2001-CAA-3), the Fourth Circuit dismissed the Complainant's petition for review of the ARB's decision on his CAA whistleblower complaint where the petition was filed 61 days after the ARB issued its decision. Under the CAA, a petition for review must be filed within 60 days. The court found that this time period was jurisdictional. The court also found that the time period could not be extended unless specifically authorized by law, and that the CAA contained no such authorization.
ENERGY REORGANIZATION ACT
[Nuclear and Environment Digest XXI A]
ISSUE PRECLUSION; WHERE ISSUE OF WHETHER RESPONDENT COULD REFUSE TO HIRE THE COMPLAINANT FOR EVERY JOB HE APPLIED FOR HAD BEEN FULLY LITIGATED AND RESOLVED IN A PRIOR ADJUDICATION, COMPLAINANT'S CLAIM OF UNLAWFUL RETALIATION FOR SUBSEQUENT REJECTION WAS BARREDIn Hasan v. USDOL , No. 05-099 (7th Cir. Dec. 10, 2008) (unpublished) (case below ARB No. 05-099, ALJ No. 2002-ERA-32), the Seventh Circuit agreed with the ARB that issue preclusion prevented the Complainant from pursuing a claim of unlawful rejection of his job application where in a previous complaint, the ALJ had found that the Respondent had legitimate and nondiscriminatory reasons for not hiring the Complainant and for concluding that it would never hire him, the ARB had agreed with that recommendation, and the Seventh Circuit had denied the Complainant's petition for review. See Hasan v. USDOL , 400 F.3d 1001 (7th Cir. 2005). The court found that the issue of whether the Respondent could refuse to hire the Complainant for every job he applied for had been fully litigated by the parties and resolved. The Complainant was no longer entitled to contest this issue.
[Nuclear and Environment Digest IX H 4]
FRIVOLOUS LITIGATION; COURT OF APPEALS AUTHORITY TO IMPOSE SANCTIONS UNDER FED. R. APP. P. 38In Hasan v. USDOL , No. 05-099 (7th Cir. Dec. 10, 2008) (unpublished) (case below ARB No. 05-099, ALJ No. 2002-ERA-32), the Seventh Circuit found that the Petitioner had filed at least a dozen similar whistleblower complaints that had been found lacking in merit by the ARB and courts of appeals. The court wrote: "Hasan's repeated frivolous litigation drains judicial resources, and we cannot allow it to continue. We have the discretion to impose, on our own motion, appropriate sanctions upon litigants who file frivolous petitions. FED. R. APP. P. 38; CIR. R. 38. Accordingly, we give Hasan fourteen days to show cause why he should not be subject to monetary sanctions under FED. R. APP. P. 38." Slip op. at 3 (citation omitted).
[Nuclear and Environment Digest VIII B 2 a]
ALJ'S CREDIBILTY DETERMINATIONS; COURT AFFIRMS ARB'S CONTRARY CONCLUSIONS ON THE MERITS OF THE CASE WHERE THOSE CONCLUSIONS WERE SUPPORTED BY SUBSTANTIAL EVIDENCE[Nuclear and Environment Digest XIII C]
HOSTILE WORK ENVIRONMENT; TAPE RECORDINGS REFLECTING ACTUAL WORDS AND ATMOSPHERE OF MEETINGSIn Patrickson v. USDOL , No. 07-4574 (Dec. 18, 2008) (unpublished) (case below ARB Nos. 05-069, 05-070, ALJ No. 2003-ERA-22), the Petitioner ("Complainant") argued on appeal that the ARB's rejection of certain ALJ credibility assessments detracted from the weight of evidence underpinning the ARB's determination. The ALJ had determined, relying largely on the Complainant's testimony, that bi-weekly meetings that the Complainant had been required to attend were sufficiently hostile to constitute adverse employment actions. The ARB found to the contrary, having listened to recordings of those meetings made by the Complainant, which the ALJ had apparently not done. The Second Circuit found that the ARB's assessment of the actual words and atmosphere of the meetings reasonably permitted it to conclude that they were not sufficiently hostile to demonstrate an adverse employment action. The court also found that the ARB's finding that the Complainant had failed to establish pretext was supported by substantial evidence notwithstanding the ALJ's contrary credibility assessments—notably testimony from a manager regarding numerous deficiencies in the Complainant's performance, and the institution of a performance-improvement plan prior to receipt of notice of the Complainant's protected activity.
SARBANES-OXLEY ACT ATTORNEY'S FEES AND COSTS; PLAINTIFF AS A PREVAILING PARTY WHERE HE ACCEPTED A RULE 68 OFFER OF JUDGMENT
In Grissom v. The Mills Corp. , No. 07-1777 (4th Cir. Dec. 3, 2008), the Defendant had made a Rule 68 offer of judgment prior to trial, which the Plaintiff accepted. The offer of judgment specifically did not cover any attorney fees and costs. The same day that judgment was entered in favor of the Plaintiff based on the Rule 68 offer, the Plaintiff filed a petition for an award of attorney fees and costs with respect to the SOX whistleblower aspect of his claim. The district court awarded fees and costs totaling over $325,000, after making as 25% reduction. On appeal, the Defendant argued that the Plaintiff was not entitled to any attorneys' fees and costs because he was not a prevailing party under SOX's fee-shifting provision, 18 U.S.C. § 1514A(c)(1).
The court first found that although the SOX provision did not use the legal term of art "prevailing party," its reference to entitlement to fees and costs for "[a]n employee prevailing" made applicable the "prevailing party" jurisprudence. The court then looked to Supreme Court authority to evaluate whether the Plaintiff was a prevailing party with respect to his SOX whistleblower claim, and found that he was. The Rule 68 judgment "created a material alteration of the legal relationship between Plaintiff and Defendant by imposing upon Defendant a legally enforceable obligation to pay Plaintiff $130,000.00." Slip op. at 9 (citation omitted). Moreover, there was judicial imprimatur on this change in relationship because the district court had the power to compel satisfaction of the judgment.
The Defendant also made alternative arguments that the $130,000 judgment was de minimis in comparison of the Plaintiff's far higher pretrial settlement demands, and that the district court should not have awarded any fees because the Plaintiff had misappropriated company documents in anticipation of litigation. The court, however, found no abuse of discretion by the district court in deciding to award attorney's fees and costs to the Plaintiff as a prevailing party on the SOX whistleblower claim.
The court remanded, however, for the district court to recalculate the attorney fees award, finding that the Plaintiff's prevailing-hourly rate evidence had been inadequate, and that the Laffey Matrix had been insufficient to carry the Plaintiff's burden of proof. The court also found that the Defendant had raised sufficient questions about the reasonableness of the number of hours expended on the case to warrant further explanation by the district court.
PREJUDGMENT INTEREST ON BACK PAY AWARD; FEDERAL POST-JUDGMENT INTEREST RATE STATUTE IS APPROPRIATE GUIDE FOR RATES
In Parexel International Corp. v. Feliciano , No. 04-cv-3798 (E.D.Pa. Dec. 4, 2008) (case below 2005-SOX-13), a jury had found that the Defendant retaliated against the Plaintiff in violation of the whistleblower provision of the SOX and terminated his employment in violation of state public policy law. The jury awarded $44,000 in back pay on the two claims. The Plaintiff then moved to mold the judgment to include prejudgment interest. The court held that the Plaintiff was entitled to prejudgment interest on the SOX claim, and that the appropriate guide for the applicable interest rate is the rate contained in the federal post-judgment interest rate statute at 28 U.S.C. § 1961(a), because among other reasons, it is easy to determine the rate using the rate charts in the statute, and because the rates are a suitable approximation of a return on a risk free investment during the back pay period.
SOX CLAIMS ARE ARBITRABLE; PRIMARY PURPOSE OF SOX IS TO PROVIDE A PRIVATE REMEDY FOR THE AGGRIEVED EMPLOYEE, NOT TO PUBLICIZE ALLEGED CORPORATE MISCONDUCT
In Guyden v. Aetna Inc. , No. 06-4954 (2d Cir. Oct. 2, 2008), after OSHA failed to act on her SOX whistleblower complaint, the Plaintiff filed suit in federal district court. The district court granted the Defendant's motion to compel arbitration and to dismiss the federal proceedings. On appeal, the Plaintiff argued that SOX claims are not arbitrable because arbitration is inconsistent with the purpose and structure of the Act.
The court described the Plaintiff's theory as follows:
The premise of Guyden's inherent conflict argument is that the SOX whistleblower provision has a public purpose in addition to its private compensatory function. In Guyden's view, an individual who brings a SOX whistleblower claim is acting as a private attorney general, and the resulting litigation serves as a vehicle for transmitting to the public information about the corporation's fraudulent activity. Her argument thus connects the SOX whistleblower provision with the policies of SOX more generally, the purpose of which is to enforce the accountability and transparency needed for well-functioning capital markets. S. REP. NO. 107-146, at pt. II(E). In other words, Guyden sees her lawsuit against Aetna as having twin objectives: first, to compensate Guyden for her own injuries; and second, "to bring serious auditing and accounting issues to the attention of Defendant's Board of Directors, shareholders, and . . . the investing public." She points out that Aetna has not yet disclosed the accounting irregularities that she claims to have discovered while an employee, and she hopes to use this litigation "to make Defendant's shareholders and the investing public aware of Defendant's internal control problems and its misleading corporate disclosures, as well as its retaliatory termination of Plaintiff."
Slip op. at 9-10. The court disagreed:
Our review of the legislative history of the SOX whistleblower provision confirms that the result is the same here. The primary purpose of the statute is to provide a private remedy for the aggrieved employee, not to publicize alleged corporate misconduct. Although Guyden correctly points out that the broad purpose of the Sarbanes-Oxley Act is to strengthen the integrity of capital markets, the whistleblower provision in particular fills a far narrower gap in the law—it protects "employees when they take lawful acts to disclose information or otherwise assist . . . in detecting and stopping actions which they reasonably believe to be fraudulent." S. REP. NO. 107-146, at pt. III. That protection, designed to "make [the] victim whole," takes the form of remedies that include "both reinstatement of the whistleblower, backpay, and compensatory damages . . .." Id. Remedies that "make [the] victim whole" protect and compensate whistleblowers, but they do little to publicize the conduct of the corporate defendant. Tellingly, and further undermining Guyden's argument that the public purpose of SOX should preclude arbitration, both Houses of Congress, acting separately, rejected versions of SOX that would have prohibited mandatory arbitration of whistleblower claims. See S. 2010, 107th Cong. § 1514A(d)(2) (March 12, 2002 version) ("No employee may be compelled to adjudicate his or her rights under this section pursuant to an arbitration agreement."); H.R. 4098, 107th Cong. § 1514A(d)(2) (Apr. 9, 2002 version) (same); S. Rep. No. 107-146, at pt. V (May 6, 2002) (reporting unanimous vote in favor of amendment that "removed the provision dealing with arbitration agreements").
Moreover, a whistleblower need not show that the corporate defendant committed fraud to prevail in her retaliation claim under § 1514A. The statute only requires the employee to prove that she "reasonably believe[d]" that the defendant's conduct violated federal law. 18 U.S.C. § 1514A(a)(1). The provision's focus on the plaintiff's state of mind rather than on the defendant's conduct is inconsistent with what Guyden argues is the statutory purpose—to employ SOX retaliation litigation as a vehicle for publicizing corporate misconduct. It is far more consistent with a statutory purpose to provide a strong compensatory mechanism for employees subjected to adverse employment action as a result of their whistleblowing conduct. This compensatory scheme is entirely consistent with mandatory arbitration, and Guyden's ability to "vindicate [her] statutory cause of action in the arbitral forum" ensures that SOX "will continue to serve both its remedial and deterrent function." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. , 473 U.S. 614, 637 (1985). We recognize that arbitration is more private than litigation and that Guyden will not have the same opportunity to expose publicly Aetna's alleged wrongdoing. As Oldroyd makes clear, however, the loss of a public forum in which to air allegations of fraud does not undermine the statutory purpose of a whistleblower protection provision. 134 F.3d at 78-79.
Slip op. at 11-12. The court therefore held that SOX claims are arbitrable.
ARBITRATION PROCEDURES; CONFIDENTIALITY; BREVITY OF ARBITRATOR'S DECISION; LIMITED DISCOVERY
In Guyden v. Aetna Inc. , No. 06-4954 (2d Cir. Oct. 2, 2008), after OSHA failed to act on her SOX whistleblower complaint, the Plaintiff filed suit in federal district court. The district court granted the Defendant's motion to compel arbitration and to dismiss the federal proceedings. On appeal, the Plaintiff argued that the specific arbitration procedures established by the instant arbitration agreement had procedural limitations that would prevent her from vindicating her statutory rights. The Plaintiff raised three objections: (1) that the agreement's confidentiality clause would prevent other employees from learning about her allegations against the Defendant and thereby undermine one of the purposes of the SOX whistleblower protection provision; (2) that a requirement that the arbitrator provide a "brief summary" of his or her decision, would result in such brevity that effective review of the arbitrator's decision would be prevented; and (3) that the agreement did not provide for sufficient discovery.
Although acknowledging some support for the Plaintiff's contention that confidentiality in arbitration may systematically favor companies over individuals and may reduce whatever incentive the fact of publicity may instill in potential whistleblowers, the court held that "[b]ecause confidentiality is a paradigmatic aspect of arbitration, our determination that SOX whistleblower claims are arbitrable precludes Guyden's challenge to the privacy of the resulting arbitration." Slip op. at 14.
In regard to the Plaintiff's objection to the "brief summary" requirement, the court found that the objection "assumes that the arbitrator will knowingly refuse or fail to apply controlling law and then insulate that failure from review through the form of its written decision." Slip op. at 16. The court found that the Plaintiff had provided no basis for that speculation, and therefore would not rely on such fears to find the agreement unenforceable.
The arbitration agreement provided for limited discovery. Each party would be allowed to take one deposition and to depose anyone designated by the other as an expert witness. However, the agreement provided that "additional discovery may be permitted by the arbitrator upon a showing that it is necessary for that party to have a fair opportunity to present a claim or defense." The Plaintiff contended that such limited discovery was inadequate. The court, however, found that the agreement and the Federal Arbitration Act gave the Plaintiff "both a contractual and a statutory basis for further discovery should it prove necessary for her claim." Slip op. at 17. Although the Plaintiff asserted that she would be unable to make the required showing of necessity, the court found that such a challenge "assumes that, in violation of her contractual and statutory rights, an arbitrator will deny her needed discovery." Slip op. at 18. Since the Plaintiff had not introduced evidence that such fears were well-founded, the court found that it must enforce the agreement "unless and until the record proves otherwise." Id .
ONCE THE ARB HAS ISSUED A FINAL DECISION, THE COMPLAINANT'S VENUE FOR REVIEW IS IN THE COURT OF APPEALS AND NOT THE DISTRICT COURT
REMOVAL TO DISTRICT COURT; ADVANCE NOTICE TO ALJ OR ARB AS A JURISDICTIONAL REQUIREMENT
In Levi v Anheuser-Busch Co., Inc. , No. 08-00398 (W.D.Mo. Oct. 27, 2008) (case below ARB Nos. 06-102, 07-020, 08-006, ALJ Nos., 2006-SOX-37 and 108, 2007-SOX-55), the district court dismissed the Plaintiff's three consolidated SOX claims where he had already proceeded through the administrative process to a final order of the Secretary of Labor. The court wrote: "When the ARB issued its Final Decision and Order affirming dismissal of all three of Plaintiff's complaints before the USDOL, the appropriate United States Court of Appeals became Plaintiff's exclusive venue for review of the Secretary's order. In his complaint, Plaintiff indicates he has already sought review by the United States Court of Appeals for the D.C. Circuit. Pursuant to 49 U.S.C. § 42121(b)(4)(B) and 18 U.S.C. § 1514A(b)(2)(A), Plaintiff cannot collaterally attack the final decision of the Secretary of Labor in proceedings in a separate United States District Court." Slip op. at 6 (footnote omitted). In a footnote the court noted that a plaintiff wishing to file a SOX claim in district court must both meet the criteria found in 18 U.S.C. § 1514A(b)(1)(B) (passage of 180 days without a final decision by the Secretary, and lack of bad faith), and file a notice of intent to file a complaint in district court with the ALJ or ARB, as appropriate, fifteen days in advance of filing in district court. 29 C.F.R. § 1980.114(b). The Plaintiff had a fourth SOX complaint still pending before the ARB, which he had not indicated that he was seeking review of by the district court. But even if he had, the district court indicated that without the advance notice required by 29 C.F.R. § 1980.114(b), the Plaintiff could not properly invoke the district court's jurisdiction.
NAMING OF DEFENDANTS BEFORE DISTRICT COURT NOT NAMED IN ADMINISTRATIVE PROCEEDINGS
In Levi v Anheuser-Busch Co., Inc. , No. 08-00398 (W.D.Mo. Oct. 27, 2008) (case below ARB Nos. 06-102, 07-020, 08-006, ALJ Nos., 2006-SOX-37 and 108, 2007-SOX-55), the district court declined to permit the Plaintiff to proceed in a SOX claim against Defendants who were not named in the prior administrative proceedings. The court also found that proceeding against such Defendants would be barred by SOX's 90 day limitations period.
PROTECTED ACTIVITY; MERELY ALERTING MANAGEMENT THAT NEAR-TERM PROFITS WERE AFFECTED BY BILLING DISCREPANCIES IS NOT SUFFICIENT TO MEET "DEFINITIVELY AND SPECIFICALLY" STANDARD
In Platone v. USDOL , No. 07-1635 (4th Cir. Dec. 3, 2008) (case below ARB No. 04-154, ALJ No. 2003-SOX-27), the court held that "a complainant must alert management to more than the fact that the company's near-term profits were affected by billing discrepancies in order to meet the standard of definitively and specifically alleging mail or wire fraud [under the whistleblower provision of SOX]."
SURFACE TRANSPORTATION ASSISTANCE ACT [STAA Digest II Y]
REMOVAL TO FEDERAL COURT; AMENDMENT TO STAA OF 9/11 ACT PERMITTING FILING IN DISTRICT COURT WHERE DOL HAS NOT ISSUED A FINAL DECISION WITHIN 210 DAYS IS NOT RETROACTIVE IN EFFECTIn Elbert v. True Value Co. , No. 08-1222 (8th Cir. Dec. 19, 2008) (case below 2005-STA-36), the Eighth Circuit held that the amendment to the STAA found in the Implementing Recommendations of the 9/11 Commission Act of 2007 conferring jurisdiction in federal district courts when the Secretary of Labor has not issued a final decision within 210 days after the complaint was filed did not have retroactive effect. In Elbert , a six day hearing had been conducted before an ALJ, and the ALJ had issued a decision, but the final DOL order had not yet been issued when, three days after enactment of the STAA amendment, the Complainant filed an action in district court. The district court dismissed, holding that the jurisdictional amendment could not be applied retroactively because it would affect the Respondent's substantive rights. The Eighth Circuit agreed, rejecting the Plaintiff's characterization of the amendment as a procedural change that merely shifts the forum, because the amendment broadened the class of individuals who may pursue a cause of action in district courts. The court was also unpersuaded by the Plaintiff's argument that the Defendant's substantive rights were not at risk because he was not seeking punitive damages in the district court. Prior to the 9/11 Act amendments, punitive damages were not available in STAA whistleblower complaints. The court found that permitting relitigation of the claim in district court when the parties had already engaged in discovery and motion practice in the administrative case would result in additional costs to the Defendant, and that the fact that punitive damages were not previously available may have impacted its employee relations.
[STAA Digest IV B 2 c]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION; INSUBORDINATION; CALLING A SUPERVISOR A LIAR[STAA Digest IV B 2 c]
WHETHER LEEWAY FOR IMPULSIVE BEHAVIOR IS WARRANTED DEPENDS ON PARTICULAR FACTS OF THE CASEIn Ridgley v. USDOL , No. 07-3917 (6th Cir. Oct. 21, 2008) (unpublished) (case below ARB No. 05-063; ALJ No. 2004-STA-53), the Complainant had previously expressed a desire not to work beyond 4:00 pm on Mondays, because he was scheduled for a long Tuesday route. On Monday, December 1, 2003, the Complainant was scheduled for a longer than normal route because it was a holiday delivery. The Complainant, concerned that the trip would take 14 to 16 hours, objected to working past 4:00 pm, and asked for a helper. The company's president attempted to accommodate the Complainant but determined that no helper was available. Because it was not feasible to remove certain stops from the route, and there was no other available assignment for the Complainant that day, the route was assigned to a substitute driver and the Complainant was sent home for the day. When the company president called to confirm whether the Complainant would be in for his Tuesday route, he left what the ALJ found to be a calm and patient message, noting that the Monday run had only taken 8 hours and 20 minutes. When the Complainant returned the call, the Complainant asked whether any stops had been removed from the Monday run. The president said that they had not, and the Complainant indicated that he found that hard to believe. The president then asked if the Complainant was calling him a liar, and the Complainant replied "[y]es, and you've been lying to me for years." The president then fired the Complainant. The Complainant filed an STAA whistleblower complaint. After a hearing, the ALJ found that the Complainant was fired for insubordination, and that the termination was not causally related to any protected activity under the STAA. The ARB affirmed.
On appeal, the Complainant argued that because he was fired for a comment made during a conversation about the length of his Monday route, he was necessarily retaliated against. The Court disagreed, writing:
But "an employer may terminate an employee who behaves inappropriately, even if that behavior relates to a legitimate safety concern," Am. Nuclear Res., Inc. v. U.S. Dept. of Labor , 134 F.3d 1292, 1295 (6th Cir. 1998), as long as the termination is not because of the safety complaint. Ridgley claims he was fired "for challenging the employer's honesty about safety compliance ," (Appellant's Reply Br. 2 (emphasis added)), but the ALJ found that the termination was motivated solely by the accusation of dishonesty, not by the fact that the accusation was related to the length of Ridgley's route. Similarly, Ridgley argues that he had "the right to speak out when his employer [used] deception to break trucking safety laws" and states that "the lying employer cannot ask, on a question of compliance with motor carrier laws, 'Are you calling me a liar', and then fire an employer for saying, 'Yes.'" ( Id. at 4 (emphasis added).) These arguments presuppose facts that the ALJ found did not exist: that Dannemiller used deception to break trucking safety laws and that he lied to Ridgley.
Slip op. at 10-11. The court also found that the ALJ had properly distinguished a Secretary of Labor decision holding that the STAA provides some leeway for impulsive behavior, noting that such authority by its own terms held that the issue turns on the distinctive facts of the case. In the instant case, the Complainant had been accommodated and had not been asked to violate any commercial vehicle regulation.
[STAA Digest IV D 1]
MIXED MOTIVE ANALYSIS IS NOT APPLICABLE WHERE RETALIATION IS FOUND NOT TO BE EVEN A PARTIAL MOTIVATING FACTORWhere the ALJ finds that retaliation was not even a partial motivating factor, the mixed motive analysis is inapplicable under the STAA whistleblower provision. Ridgley v. USDOL , No. 07-3917 (6th Cir. Oct. 21, 2008) (unpublished) (case below ARB No. 05-063; ALJ No. 2004-STA-53).