Figgins v. Grand Trunk Western Railroad Co., ARB Nos. 2020-0001 & -0002, ALJ No. 2014-FRS-00119 (ARB Feb 28, 2022) (per curiam) (Decision and Order)

AFFIRMATIVE DEFENSE ESTABLISHED WHERE COMPLAINANT HAD MADE A REMARK AT WORK THAT HE FELT LIKE KILLING SOMEONE

ARB REVIEW; ARB FOUND IT UNNECESSARY TO REVIEW PARTIES ARGUMENTS ON APPEAL ABOUT THE ALJ'S FINDINGS ON PROTECTED ACTIVITY AND CONTRIBUTORY FACTOR CAUSATION WHERE THE RECORD SUPPORTED THE ALJ'S CONCLUSION THAT RESPONDENT ESTABLISHED ITS AFFIRMATIVE DEFENSE

In Figgins v. Grand Trunk Western Railroad Co., ARB Nos. 2020-0001 & -0002, ALJ No. 2014-FRS-00119 (ARB Feb 28, 2022) (per curiam), the ALJ determined that Complainant had engaged in certain protected activity, and assumed arguendo that other activity was protected under the FRSA.  The ALJ, however, found that Respondent proved by clear and convincing evidence that it would have suspended and discharged Complainant in the absence of any FRSA-protected activity.  Both parties appealed to the ARB.  The ARB found it unnecessary to address the parties’ appeals of the ALJ's rulings on protected activity and contributory factor causation, because the record supported the ALJ's conclusion that Respondent established its affirmative defense.

In this case, Complainant had not appealed the ALJ's finding that his suspension only reflected ordinary practice in the course of business at Respondent.  As to the discharge, Complainant had made a remark about "killing someone," which Respondent had taken very seriously.  Moreover, a union representative testified that Respondent's rules prohibited making such remarks.    The ARB affirmed the ALJ’s conclusions as supported by substantial evidence and in accordance with the law.  The ARB stated:

  •     The record supports the ALJ’s conclusion that Bistis decided to discharge Figgins pursuant to Rule H because: “(1) Mr. Figgins’s remark in the workplace about ‘killing someone’ was unprecedented, and (2) when evaluating the potential threat posed by Mr. Figgins to the workplace, [Bistis] ‘just didn’t have the luxury to get that one wrong.’”

Slip op. at 7, quoting ALJ decision (footnotes omitted).

United States Dept. of the Air Force v. Administrator, Wage and Hour Div., USDOL, ARB Nos. 2021-0071 and 2022-0001 (ARB Feb. 28, 2022) (per curiam) (Decision and Order)

WAGE AND HOUR DIVISION ADMINISTRATOR REASONABLY APPLIED THE RAYTHEON FACTORS TO DETERMINE THAT A CONTRACT HAVING BOTH SUPPLY AND SERVICE COMPONENTS WAS PRINCIPALLY A SERVICE CONTRACT TO WHICH THE SERVICE CONTRACT ACT APPLIED; ADMINISTRATOR DID NOT ERR IN EVALUATING POST-AWARD INFORMATION

In United States Dept. of the Air Force v. Administrator, Wage and Hour Div., USDOL, ARB Nos. 2021-0071 and 2022-0001 (ARB Feb. 28, 2022) (per curiam), the Air Force awarded FlightSafety a contract having supply and service components for the development, building, and operation of an aircrew training system for an aerial refueling tanker. 

The Airforce and the Wage and Hour Division initially denied FlightSafety's request to add SCA clauses to the contract.  An appeal was filed with the Administrator.  The Administrator ruled that the SCA applied to the contract because, applying the factors stated in Raytheon Aerospace, ARB No. 2003-0017, -0019, slip op. at 8 (ARB May 21, 2004), the contract was principally for services rather than for supplies.

On appeal the ARB affirmed the Administrator's ruling.  Specifically, the ARB ruled

  • that the Administrator may evaluate post-award information to determine SCA coverage;
  • that the Administrator reasonably applied the Raytheon factors to determine that the contract is subject to the SCA; 
  • that equitable considerations – FlightSafety’s alleged use of opportunistic practices to bid on a supply contract, but then seek a post-award determination that the contract was subject to the SCA to obtain a higher payment -- did not outweigh the Administrator’s reasonable application of the Raytheon factors; and 
  • that the Administrator reasonably declined to apply the SCA retroactively and reasonably applied the SCA prospectively.
     

Lutz v. New Cumberland Hospitality, Inc., ARB No. 2022-0021, ALJ No. 2018-SOX-00016 (ARB Feb. 10, 2022) (per curiam) (Order Approving Withdrawal of Complainant's Petition for Review and Dismissing Appeal)

The ARB granted Complainant’s request to withdraw his Petition for Review of the ALJ’s decision.  The ARB noted that such withdrawal results in the ALJ’s decision becoming the final order of the Secretary pursuant to 29 C.F.R. §1980.111(c).

Bishop v. United Parcel Service, Inc., ARB No. 2021-0062, ALJ No. 2020-STA-00018 (ARB Feb. 8, 2022) (per curiam) (Decision and Order)

[STAA Digest IV G]
CONTRIBUTORY FACTOR CAUSATION; ARB AFFIRMED ALJ’S FINDING THAT COMPLAINANT FAILED TO PROVE CONTRIBUTORY FACTOR CAUSATION WHERE THERE WAS A LACK OF TEMPORAL PROXIMITY; AND A LACK OF EVIDENCE OF RETALIATORY ANIMUS OR MOTIVATION BY RESPONDENTS’ MANAGERS; AND A LACK OF DISCRIMINATORY CONDUCT AFTER COMPLAINANT WAS REINSTATED AFTER A PRIOR STAA COMPLAINT

[STAA Digest IV G]
CONTRIBUTORY FACTOR CAUSATION; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING THAT RESPONDENT’S FAILURE TO POST OR DISTRIBUTE A PRIOR ALJ’S DECISION AS ORDERED WAS BASED ON INDIFFERENCE RATHER THAN RETALIATORY ANIMUS

[STAA Digest III J]
ADEQUACY OF ALJ REVIEW OF RECORD; ALJ NOTED THAT A MANAGER HAD AN COPY OF COMPLAINANT’S DISCIPLINARY RECORD (WHICH SHOULD HAVE BEEN EXPUNGED BASED ON A DIFFERENT ALJ’S ORDER IN A PRIOR STAA CASE) DURING A GREVIANCE HEARING; COMPLAINANT ARGUED THAT THE ALJ COMMITTED LEGAL ERROR BY NOT DISCUSSING WHETHER THIS CIRCUMSTANCE SUPPORTED A FINDING OF ANIMUS; THE ARB FOUND THIS WAS NOT LEGAL ERROR BECAUSE AN ALJ IS ONLY REQUIRED TO EXPLAIN WHY SIGNIFCANT PROBATIVE EVIDENCE WAS REJECTED, AND HERE THE MANAGER’S POSSESSION OF THAT PRIOR RECORD WAS NOT PROBATIVE

In Bishop v. United Parcel Service, Inc., ARB No. 2021-0062, ALJ No. 2020-STA-00018 (ARB Feb. 8, 2022) (per curiam), Complainant had filed an STAA complaint in 2011, which resulted in a 2013 ALJ decision finding that Respondent unlawfully discharged Complainant.  In addition to an award of damages and attorney’s fees, the ALJ ordered reinstatement; expungement of reference to the firing from Respondent’s records; a posting of the ALJ’s decision at the workplace; and provision of the ALJ’s decision to all employees in a district facility.  Respondent reinstated Complainant, but failed to comply with the ALJ’s expungement, posting and distribution directives.   In 2019, Complainant was taken out of service for a serious accident in which Complainant had fallen asleep.  Management gave Complainant the option to resign or have a grievance committee panel hear his grievance.  Complainant opted for the grievance committee meeting.  The grievance committee ultimately issued a decision upholding the discharge.  Complainant then filed the instant STAA complaint.  Following a hearing, the ALJ dismissed the complaint on the contributory factor element of a STAA complaint.  The ALJ found that the evidence showed 1) lack of temporal proximity, 2) lack of discrimination after Complainant’s return to work, 3) lack of retaliatory motive from the decisionmakers, and 4) a creditable explanation for terminating Complainant.  The ALJ found that Respondent’s failure to comply with the prior ALJ’s orders was due to indifference rather than animosity toward Complainant as a result of his protected activities.

On appeal, Complainant first pointed to circumstantial evidence that cumulatively might have supported  a finding of contributory causation.  The ARB, however, found that the record did not demonstrate that Respondent’s decisionmakers showed animus or hostility toward Complainant or others for protected activity after Complainant’s reinstatement.  The ARB also found no direct evidence to contradict the ALJ’s decision, which was supported by substantial evidence.  

Complainant contended that the ALJ committed legal error by not addressing why Complainant’s unexpunged disciplinary record was in the possession of a manager during the grievance meeting, and why this was not evidence of retaliatory intent.  The ARB stated that “an ALJ is not required to discuss every piece of evidence to develop the record fully and fairly.  Rather, an ALJ only must explain the reasons for rejecting significant probative evidence.”  Slip op. at 12 (footnote omitted).  Based on Complainant’s acknowledgement that the managers did not refer to

Complainant’s previous discharge in the grievance process, the ARB found that the manager’s possession of the record was not particularly probative, and that the ALJ did not err in analysis of this issue.

Complainant argued that the ALJ erred in accepting Respondent’s argument that its decision not to rehire Complainant was not pretextual, as compared with other drivers who were not permanently discharged, because Complainant had lost complete control of the vehicle and had a pre-existing problem with becoming drowsy when driving.  The ARB noted that, while disparate treatment reasonably warrants scrutiny, Respondent had presented details of the other accidents to show meaningful differences.  Although Respondent’s manager may have misunderstood Complainant’s statements about falling asleep, such a misunderstanding did not make Complainant’s firing unlawful.

In sum, although Complainant contested the ALJ’s ultimate finding that Complainant failed to prove contributory factor causation, the ARB agreed with the ALJ’s findings on the lack of   temporal proximity; retaliatory animus or motivation by Respondents’ managers; and discriminatory conduct after Complainant was reinstated.   The ARB deferred to the ALJ’s credibility findings, and determined that Complainant’s evidence, although possibly probative, was not direct or significant enough to compel reversal of the ALJ’s findings.  The ARB concluded that the ALJ’s findings were free of legal error and were supported by substantial evidence.

OFCCP, USDOL v. Convergys Customer Management Group, Inc., ARB No. 2022-0020, ALJ Nos. 2015-OFC-00002 through -00008, 2016-OFC-00003 (ARB Feb. 4, 2022) (per curiam)

OFCCP COMPLIANCE REVIEW AND DESK AUDIT; OFCCP MUST DEMONSTRATE APPLICATION OF NEUTRAL CRITERIA IN SELECTION OF FEDERAL CONTRACTOR FACILITIES FOR COMPLIANCE REVIEW, INCLUDING DESK AUDITS

In OFCCP, USDOL v. Convergys Customer Management Group, Inc., ARB No. 2022-0020, ALJ Nos. 2015-OFC-00002 through -00008,  2016-OFC-03 (ARB Feb. 4, 2022) (per curiam), the ARB vacated the ALJ’s Recommended Decision and Order granting OFCCP’s request for summary judgment and remanded the matter for a determination on whether OFCCP’s selections of Convergys’ facilities were based on a neutral administrative plan.

Beginning in 2013, OFCCP initiated compliance reviews at various facilities of Convergys Customer Management Group, Inc. (“Convergys”).  These compliance reviews took the form of off-site desk audits, with OFCCP requesting submission of Convergys’ written affirmative action programs and supporting documentation for each facility.  Convergys did not submit the requested documentation and OFCCP subsequently filed expedited administrative complaints against Convergys for not complying with the compliance evaluations.  Id. at 2.  OFCCP filed a motion for summary judgment.  Convergys objected, positing, in part, that, under the Fourth Amendment of the U.S. Constitution, OFCCP was required to show that it utilized a neutral selection process.  The ALJ granted OFCCP’s request for summary judgment, reasoning that a desk audit was essentially the equivalent of an administrative subpoena, and finding that neither require a neutral selection process under the Fourth Amendment.  Id. at 7.

The ARB disagreed, finding that the ALJ had applied the incorrect legal standard to compliance reviews.  The ARB reviewed the Fourth Amendment’s requirements for administrative subpoenas and administrative warrants and agreed that “[a]n OFCCP desk audit is ‘practically identical’ to an administrative subpoena.  An OFCCP on-site review, however, triggers the standard for a warrant or its equivalent.”  Id. at 7 (footnote omitted).  However, the ARB observed that, although the Fourth Amendment’s protections from administrative warrants and administrative subpoenas are different, “there is . . . overlap in the reasonableness requirements under both.”  Id. at 7.  The ARB, reasoning that “[a] central tenant of administrative law is that the agency is bound by its own regulations,” found that “[f]or a search, including a desk audit, to be reasonable, the agency must, among other things, follow its own procedures.”  Id. at 9.  The ARB concluded that “OFCCP must apply neutral criteria when selecting a federal contractor’s facility . . . to undergo a compliance review including a desk audit,” and that “[w]hether a compliance review was based on an administrative plan containing specific neutral criteria is a ‘factual determination.’”  Id. at 10 (footnote omitted).  The Board vacated the ALJ’s Recommended Decision and Order and remanded the matter for a determination of “whether OFCCP applied specific, neutral criteria in selecting Defendant’s facilities for a compliance review.”  Id. at 10.
  
OFCCP – CONSTITUTIONALITY OF EXECUTIVE ORDER AND REGULATIONS; THE SECRETARY OF LABOR AND DESIGNEES HAVE NO AUTHORITY TO REVIEW THE CONSTITUTIONALITY OF THE REGULATIONS IMPLEMENTING EXECUTIVE ORDER 11246 AND ITS AMENDMENTS 

In OFCCP, USDOL v. Convergys Customer Management Group, Inc., ARB No. 2022-0020, ALJ Nos. 2015-OFC-00002 through -00008,  2016-OFC-03 (ARB Feb. 4, 2022) (per curiam), the ARB declined to address constitutional challenges to Executive Order 11246, as amended.  The ARB stated that “[t]he Department of Labor is bound by its own regulations, and the Secretary of Labor—and in this case, his designee, the Board—acting in adjudicatory capacity has no authority to review the validity of” the regulations implementing Executive Order 11246, as amended.  Id. at 4 n.9.

OFCCP – CONSTITUTIONALITY OF EXPEDITED HEARING PROCEDURES; EXPEDITED HEARING PROCEDURES AT 29 CFR PART 60-30 ARE ADEQUATE TO PROTECT DUE PROCESS RIGHTS 

In OFCCP, USDOL v. Convergys Customer Management Group, Inc., ARB No. 2022-0020, ALJ Nos. 2015-OFC-00002 through -00008,  2016-OFC-03 (ARB Feb. 4, 2022) (per curiam), the ARB found that “[a]n ALJ’s expedited hearing process [pursuant to the regulations at 29 CFR Part 60-30] is adequate to protect a contractor’s due process rights.”  Id. at 5.  The respondent had specifically challenged the ALJ’s grant of summary judgment in the context of the expedited processes as violating due process.  The ARB disagreed, stating:

  • [W]e find unpersuasive Defendant’s arguments that expedited hearings and any consequent orders granting summary judgement as a matter of law are otherwise unconstitutional.  Further, the ARB is bound by the Department’s Regulations.

Id. at 5-6 n.15.
 

Mehra v. West Virginia University, ARB No. 2021-0056, ALJ No. 2017-LCA-00002 (ARB Feb 1, 2022) (per curiam) (Order Denying Motion for Reconsideration)

The ARB denied Complainant's motion for reconsideration where it did not present any arguments that fell within the four circumstances under which the ARB will reconsider its decisions.