Administrative Review Board Decisions
The following case summaries were created by the Administrative Review Board staff.
Kreb v. Integra Aviation, LLC, LLC, ARB No. 2024-0023, ALJ No. 2023-AIR-00008 (ARB Mar. 27, 2024) (Order Denying Petition for Interlocutory Review)
ORDER OF DISMISSAL; INTERLOCUTORY APPEAL RENDERED MOOT
In Kreb v. Integra Aviation, LLC, ARB No. 2024-0023, ALJ No. 2023-AIR-00008 (ARB Mar. 27, 2024), Complainant filed a petition for interlocutory review of the ALJ's January 24, 2024 Omnibus Order: (1) Denying Complainant's Request to Join Additional Parties to this Complaint; and (2) Denying his "Joint Motion to Stay and Amend Discovery Order and to Compel Counsel to Provide Subpoena Evidence."
Subsequent to Complainant's petition for interlocutory review, on February 16, 2024, the ALJ issued a Decision and Order Dismissing Complaint with prejudice. On March 1, 2024, Complainant filed a petition for review "of the full administrative record of the whistleblower retaliation investigation" with the ARB, which encompassed the issues Complainant raised in his petition for interlocutory review.
The ARB found that the ALJ's dismissal of Complainant's complaint and Complainant's subsequent petition for review of that case to the ARB rendered this interlocutory appeal moot. Therefore, the ARB denied Complainant's petition for interlocutory review and dismissed ARB No. 2024-0023.
Hanna v. Global Nuclear Fuel-Americas, LLC, ARB No. 2023-0015, ALJ No. 2020-ERA-00002 (ARB Mar. 19, 2024) (Decision and Order)
UNTIMELY COMPLAINT; COMPLAINANT INELIGIBLE FOR EQUITABLE ESTOPPEL
In Hanna v. Global Nuclear Fuel-Americas, LLC, ARB No. 2023-0015, ALJ No. 2020-ERA-00002 (ARB Mar. 19, 2024), the ARB affirmed ALJ's dismissal of Complainant's untimely complaint. The ARB found that Complainant had 180 days from the date of notice of the termination of his employment to file his retaliation claim under the ERA. Complainant failed to file his claim within the time limitation. The ARB also found that Complainant's circumstances did not justify equitable estoppel. The ARB determined that Complainant failed to adequately argue before the ALJ that he was unintentionally lulled into missing the filing deadline. The ARB also concluded that, even if Complainant had properly raised the argument, Respondent did not lull or induce Complainant to forego his rights to timely file a retaliation claim.
Scott v. E.O. Habhegger Company, ARB No. 2023-0027, ALJ No. 2019-STA-00048 (ARBMar. 14, 2024) (Decision and Order)
COVERED EMPLOYEE; PROTECTED ACTIVITY; ADVERSE ACTION; CONTRIBUTING FACTOR; SAME ADVERSE ACTION
In Scott v. E.O. Habhegger Company, ARB No. 2023-0027, ALJ No. 2019-STA-00048 (ARB Mar. 14, 2024), the ARB affirmed the ALJ's Decision and Order finding that Complainant had established his claim of retaliation in violation of the whistleblower protections of the STAA. Complainant worked as a warehouse assistant for Respondent. His job duties included picking and packing orders, loading packages onto Respondent's trucks for delivery, and loading equipment onto Respondent's 26,000-pound truck. Respondent provided gas pump equipment for service stations. One of the products that Respondent supplied to its customers was Class 2 fire extinguishers, which arrived at the warehouse in large boxes. The boxes had a green hazardous material warning label affixed to them. Respondent's practice was to cover the green hazardous material labels and ship individual fire extinguishers to customers through ground transportation. At one point during Complainant's employment, he refused to ship a case of fire extinguishers because another warehouse assistant told him that the package was not legal. On the same day, Complainant voiced his concerns to management regarding the practice of covering the green hazardous label when shipping fire extinguishers. Five days later, Complainant emailed management about several employment-related concerns and referred to Respondent's practice of covering the hazardous material label when shipping fire extinguishers. Two days later, Complainant had a meeting with management. By the end of the meeting, Complainant's employment with Respondent had ended.
COVERED EMPLOYEE; COMPLAINANT WAS A COVERED EMPLOYEE UNDER STAA BECAUSE HIS JOB DUTIES INCLUDED FREIGHT HANDLING
The ARB noted that a freight handler is specifically listed as an "employee" under the STAA's statutory definition. The ARB explained that substantial evidence in the record established that Complainant's job duties as a warehouse assistant included loading and unloading cargo from Respondent's trucks and vehicles, which were duties performed by a freight handler. The ARB, thus, determined that the ALJ properly found that Complainant was a covered employee under the STAA because his position included freight handling duties. The ARB also explained that because a freight handler was specifically included in the statutory definition of an "employee" in 49 U.S.C. § 31105(j), it was not necessary to discuss whether Complainant directly affected motor vehicle safety in the course of his employment.
PROTECTED ACTIVITY; STAA DOES NOT REQUIRE A COMPLAINANT TO FILE A COMPLAINT RELATED TO AN ACTUAL COMMERCIAL MOTOR VEHICLE SAFETY REGULATION
The ARB explained that under the complaint clause of the STAA, a complainant does not need to prove an actual violation of a motor vehicle safety regulation or standard to establish that he engaged in protected activity, but he must have a reasonable belief regarding the existence of an actual or potential violation. The ARB found that the ALJ properly determined that Complainant had a good faith belief that Respondent's practice of covering the hazardous label when shipping fire extinguishers violated a motor vehicle safety regulation as evidenced by the fact that he specifically objected to this practice on two separate occasions. The ARB also noted that there was nothing in the record to suggest that Complainant had actual knowledge of the specific transportation regulation that required a hazardous material sign only when shipping fire extinguishers by air. The ARB further determined that Complainant's belief was objectively reasonable. The ARB explained that the ALJ properly noted that another warehouse assistant also believed that Respondent's practice of shipping fire extinguishers without a hazardous material label was illegal. The ALJ also determined that it was reasonable for an individual to believe that because the fire extinguishers arrived at Respondent's warehouse facility with hazardous labels affixed to them, the same label would be required for shipping fire extinguishers. The ARB concluded that substantial evidence supported the ALJ's determination that Complainant engaged in protected activity when he refused to ship fire extinguishers and expressed his concerns about covering the hazardous material label on fire extinguishers before shipping them.
ADVERSE ACTION; UNDER THE STAA, ANY DISCHARGE, INCLUDING THE TERMINATION OF EMPLOYMENT BY AN EMPLOYER, CONSTITUTES AN ADVERSE ACTION
The ARB found that the ALJ properly determined that Complainant suffered an adverse action when management terminated his employment. The ARB explained that an employer who decides to interpret an employee's actions as quitting or resignation has, in fact, decided to discharge that employee, unless the employee explicitly resigns. The ARB determined that substantial evidence in the record supported the ALJ's finding that Complainant did not explicitly quit or resign from his employment.
PROTECTED ACTIVITY; THE ARB CONSIDERED SEVERAL FACTORS TO DETERMINE WHETHER COMPLAINANT'S PROTECTED ACTIVITY WAS A CONTRIBUTING FACTOR IN THE ADVERSE ACTION.
The ARB found that substantial evidence in the record supported the ALJ's finding that Complainant's protected activity contributed to Respondent's decision to terminate his employment. The ARB noted that the ALJ properly considered that Respondent was aware of Complainant's protected activity prior to meeting with him; Complainant again mentioned his concern about the protected activity during the meeting; and Complainant was discharged from employment only one week after his refusal to ship fire extinguishers.
SAME ADVERSE ACTION; RESPONDENT MUST UNAMBIGUOUSLY SHOW THAT IT WOULD HAVE TAKEN THE SAME ADVERSE ACTION IN THE ABSENCE OF COMPLAINANT'S PROTECTED ACTIVITY.
The ARB found that the ALJ properly determined that although Respondent's management discussed other workplace issues with Complainant before his employment was terminated, Respondent failed to submit evidence to unambiguously show that it would have terminated Complainant's employment for other reasons, in the absence of protected activity.