March 2020
Becker v. Community Health Systems, Inc., ARB Nos. 2017-0005 and -00006, ALJ No. 2014-SOX-00044 (ARB Mar. 30, 2020) (per curiam) (Decision and Order Approving Settlement and Dismissing Complaint with Prejudice)
Casenote(s):
The ARB approved the parties’ settlement agreement and dismissed the complaint with prejudice.
McMullen v. Figeac Aero North America, ARB No. 2017-0018, ALJ No. 2015-AIR-00027 (ARB Mar. 30, 2020) (per curiam) (Decision and Order)
Casenote(s):
PROTECTED ACTIVITY; INFORMATION PROVIDED BY COMPLAINANT ONLY HAS TO BE RELATED TO ANY VIOLATION OR ALLEGED VIOLATION; COMPLAINANT NEED NOT HAVE WAITED FOR AN FAA VIOLATION TO OCCUR FOR A REPORT TO BE PROTECTED ACTIVITY
PROTECTED ACTIVITY; RULINGS OF HINDSMAN AND MALMANGER—FINDING THAT REPORTS IN THOSE CASES WERE NOT PROTECTED ONCE COMPLAINANTS’ KNEW THAT REPORTED MATTER WAS NOT A VIOLATION OR HAD BEEN RESOLVED —WERE DISTINGUISHABLE IN INSTANT CASE WHERE AT TIME REPORTS WERE MADE THE MATTER HAD NOT BEEN RESOLVED AND COMPLAINANT’S REPORTS WERE NOT MADE SIMPLY TO “CLOAK” COMPLAINANT WITH WHISTLEBLOWER PROTECTION
In McMullen v. Figeac Aero North America, ARB No. 2017-0018, ALJ No. 2015-AIR-00027 (ARB Mar. 30, 2020) (per curiam), Complainant, the General Manager of Respondent’s Wichita airline components plant, filed an AIR21 retaliation complaint alleging that his employer terminated his employment in retaliation for reporting safety violations. The ALJ found in favor of Complainant. The ARB affirmed.
In regard to protected activity, the ARB stated:
Protected activity under AIR 21 has two elements: (1) the information that the complainant provides must involve a purported violation of a regulation, order, or standard of the FAA or federal law relating to air carrier safety, though the complainant need not prove an actual violation; and (2) the complainant’s belief that a violation occurred must be subjectively held and objectively reasonable.4 “The information provided to the employer or federal government must be specific in relation to a given practice, condition, directive, or event that affects aircraft safety.” Hindsman v. Delta Air Lines, Inc., ARB No. 09-023, ALJ No. 2008-AIR-013, slip op. at 5 (ARB June 30, 2010).
Slip op. at 4. In the instant case, the ALJ found that Complainant engaged in protected activity when he informed the CEO of Respondent’s parent company that Respondent’s vice-president of sales threatened Respondent’s quality assurance manager because she refused to falsify First Article Inspection Report (FAI) documentation in violation of a FAA regulation. Although in the first report Complainant had not cited to a specific regulation, the ALJ found that was not necessary and that Complainant’s concerns were well-based and reasonable.
The ALJ also found that the quality assurance manager had raised concerns about proper paperwork, which Complainant reported to the parent company’s CEO by email, informing that omitting information on the FAI could be considered fraud and a violation of FAA regulations. The ARB affirmed that this communication qualified as protected activity. The ARB stated: “Moreover, information only has to be related to any violation or alleged violation and Complainant need not have waited for an FAA violation to occur in order to report the omission and have whistleblower protection.” Id. at 5.
On appeal, Respondent contended that the Board’s holdings in Hindsman, supra, and Malmanger v. Air Evac EMS, Inc., ARB No. 08-071, ALJ No. 2007-008 (ARB July 2, 2009), required a different outcome. The Board disagreed:
In Hindsman, the Board held that the complainant could not have had a reasonable belief that flying with the portable oxygen concentrator on board violated air safety regulations once she had confirmed that the item was permitted by the FAA. These facts are not analogous to those in this case as McMullen was reporting potential violations, which the ALJ found were objectively reasonable. In addition, in Malmanger, the Board affirmed an administrative law judge’s finding that the complainant did not have a reasonable belief that the company violated an order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety. At the time he reported his concerns to management, the complainant knew the problems had been resolved and the ALJ found that his complaints were insincere and made to forestall what he believed would be an adverse performance evaluation. In this case, the ALJ found that McMullen’s concerns were sincere and not made to “cloak himself” with whistleblower protection. Moreover, the concerns had not been resolved by the time the Complainant reported his concerns to [the parent company’s CEO]. Thus, we affirm the ALJ’s finding that McMullen engaged in protected activity on July 26 and 28, as well as when he filed the report to the FAA on July 30, 2014 as they are supported by substantial evidence.
Id. 5-6.
CONTRIBUTING FACTOR CAUSATION; ALTHOUGH CAUSATION MAY NOT BE PROVABLE BASED SOLELY ON AN INFERENCE BASED ON TEMPORAL PROXIMITY, TEMPORAL PROXIMITY SUPPORTED BY OTHER FORMS OF CIRCUMSTANTIAL EVIDENCE MAY BE SUFFICIENT
In McMullen v. Figeac Aero North America, ARB No. 2017-0018, ALJ No. 2015-AIR-00027 (ARB Mar. 30, 2020) (per curiam), Complainant, the General Manager of Respondent’s Wichita airline components plant, filed an AIR21 retaliation complaint alleging that his employer terminated his employment in retaliation for reporting safety violations. The ALJ found in favor of Complainant. The ARB affirmed.
In regard to contributing factor causation, the ALJ found it significant that the adverse action occurred with five days of a first email reporting a potential FAA regulation violation, and within three days of a second email. The ALJ also based his finding of contributory factor causation on an email chain between Complainant and the official who decided to terminate Complainant’s employment, credibility determinations, and a finding that Respondent had not established that there were legitimate reasons for the termination. The ARB found that the ALJ’s finding of temporal proximity was supported by substantial additional evidence. The ARB also determined that the evidence of record supported the ALJ’s finding of contributory factor causation. The ARB observed that this case was distinguishable from another recent ARB decision:
The Board recently issued Acosta v. Union Pacific Railroad Co., ARB No. 2018-0020, ALJ No. 2016-FRS-00082 (ARB Jan. 22, 2020). In Acosta, the Board held that the ALJ erred in concluding that an “inference” of contribution can be established with temporal proximity alone. We stated that “[t]he mere circumstance that protected activity precedes an adverse personnel action is not proof of a causal connection between the two.” Acosta, slip op. at 8 (citations omitted). The facts in Acosta are dissimilar to the case at hand because in Acosta, the nature of complainant’s job involved almost daily protected activity, and there were intervening events between the protected activity and the adverse action. Importantly, the Board did clarify that “temporal proximity may be supported by other forms of circumstantial evidence establishing the evidentiary link between the protected act and the adverse action.” Id. Such is the case before us, where, the ALJ credited Complainant’s testimony, which is supported by the evidence of record, the emails between Complainant and [Respondent’s parent company’s CEO], and did not exclusively rely on temporal proximity.
Slip op. at 7, n.8.
AFFIRMATIVE DEFENSE; ARB AFFIRMS ALJ’S FINDING THAT RESPONDENT DID NOT CARRY ITS CLEAR AND CONVINCING EVIDENCE BURDEN WHERE ITS WITNESS’ TESTIMONY THAT COMPLAINANT WAS A POOR PERFORMER WAS NOT SUPPORTED BY ANY SUBSTANTIATING OR CORROBORATING EVIDENCE
In McMullen v. Figeac Aero North America, ARB No. 2017-0018, ALJ No. 2015-AIR-00027 (ARB Mar. 30, 2020) (per curiam), Complainant, the General Manager of Respondent’s Wichita airline components plant, filed an AIR21 retaliation complaint alleging that his employer terminated his employment in retaliation for reporting safety violations. The ALJ found in favor of Complainant. The ARB affirmed.
In regard to its affirmative defense, Respondent contended that it would have terminated Complainant’s employment even absent protected activity based on performance problems; disclosure of confidential information; seeking legal advice without authorization; and making a false claim against Respondent’s vice-president of sales to cloak himself with whistleblower protection. The ALJ found that Respondent had not established these affirmative defenses by clear and convincing evidence. On appeal, Respondent focused only the performance problem and the belief that Complainant made false claims against the vice-president of sales.
The ALJ’s findings were based on credibility and specifically the absence of evidence to substantiate or corroborate Respondent’s witnesses’ testimony that Complainant’s performance was poor and that he did not work very hard. The ARB found that attacks on the ALJ’s weighing of the evidence did not raise reversible error.
REMEDIES; WHEN REINSTATEMENT WAS NOT APPROPRIATE, COMPLAINANT WAS PROPERLY AWARDED SEVERANCE BENEFITS TO WHICH COMPLAINANT WOULD HAVE BEEN ENTITLED IN THE EVENT OF DISCHARGE WITHOUT CAUSE
In McMullen v. Figeac Aero North America, ARB No. 2017-0018, ALJ No. 2015-AIR-00027 (ARB Mar. 30, 2020) (per curiam), Complainant, the General Manager of Respondent’s Wichita airline components plant, filed an AIR21 retaliation complaint alleging that his employer terminated his employment in retaliation for reporting safety violations. The ALJ found in favor of Complainant. The ARB affirmed.
As to remedies, Respondent appealed the ALJ’s award of severance pay pursuant to the parties’ employment agreement. The ALJ found that the employment contract provided for a six month severance package and that this clause was not subject to any conditions or restrictions. The ARB affirmed the award, and held that “a severance provision such as this was a negotiated term, condition and privilege of employment, and thus should be fulfilled.” Slip op. at 8 (footnote omitted). The Board distinguished cases cited by Respondent because in those cases the complainant had been reinstated and thus not entitled to severance benefits. The Board stated: “Rather, the Board has held that an employee is entitled to both back pay and previously contracted severance pay to which he would be entitled in the event of discharge without cause when reinstatement was not appropriate. See Loftus v. Horizon Lines, Inc., ARB No. 16-082, ALJ No. 2014-SPA-004 (ARB May 24, 2018).”
Privler v. CSX Transportation, Inc., ARB No. 2018-0071, ALJ No. 2018-FRS-00021 (ARB Mar. 24, 2020) (per curiam) (Decision and Order)
Casenote(s):
TIMELINESS OF FRSA COMPLAINT; EQUITABLE TOLLING; ALLEGATION FROM COMPLAINANT THAT HE WAS DIRECTED TO HOLD OFF ON FILING HIS FRSA COMPLAINT UNTIL AFTER HE FILED AN EEOC AND STATE HUMAN RIGHTS COMPLAINT DID NOT SUPPORT EQUITABLE TOLLING WHERE COMPLAINANT WAITED AN ADDITIONAL TWO WEEKS TO FILE THE FRSA COMPLAINT
In Privler v. CSX Transportation, Inc., ARB No. 2018-0071, ALJ No. 2018-FRS-00021 (ARB Mar. 24, 2020) (per curiam), Complainant’s FRSA complaint was untimely because it was filed 182 days after the alleged adverse action. The Board noted the ALJ’s analysis of equitable tolling, and agreed with the ALJ’s reasoning for why it was not warranted in this case:
The ALJ specifically indicated that: (1) Complainant was not entitled to equitable tolling based on the theory that he raised “ the precise statutory claim but has done so in the wrong forum” because even though there was some overlap of facts in his Equal Employment Opportunity Commission (EEOC) and New York Department of Human Rights (DHR) complaint, the complaint only pertained to a claim of religious discrimination; (2) a lack of prejudice to the Respondent does not in and of itself warrant equitable tolling; and (3) while Complainant alleged that he was directed not to file his FRSA claim with OSHA until after he filed his EEOC and DHR complaint, he did not explain why he waited over two weeks to the file his FRSA complaint. Id. In doing so, the ALJ construed the record liberally in deference to Complainant’s unrepresented status and still found his arguments insufficient to avoid dismissal.
The ARB refused to consider new arguments from Complainant not raised before the ALJ, affirmed the ALJ’s decision and order, and dismissed the complaint with prejudice.
[Editor’s note: The ALJ’s decision provides context. The self-represented Complainant’s equitable tolling argument was, apparently, that a DHR official advised Complainant to hold off on filing his FRSA complaint because language in the DHR and EEOC complaint stated: “I have not commenced any other civil action, nor do I have an action pending before any administrative agency, under any state or local law, based on upon this same unlawful discriminatory practice.” The ALJ determined that even if a DHR official had advised to file the FRSA complaint with OSHA only after filing the DHR and EECO complaints, Complainant did not do so until over two weeks after the DHR and EEOC complaints were filed. Privler v. CSX Transportation, Inc., ALJ No. 2018-FRS-00021, slip op. at 4 (ALJ Aug. 13, 2018).]
Evans v. United States Environmental Protection Agency, ARB No. 2017-0008, ALJ No. 2008-CAA-00003 (ARB Mar. 17, 2020) (per curiam) (Decision and Order)
Casenote(s):
[Nuclear and Environmental Digest VII C 3]
AUTHORITY OF ALJ TO DISMISS FOR FAILURE TO STATE A CLAIM; ARB INDICATES THAT ITS 2012 CONCLUSION THAT AN ALJ SHOULD NOT DISMISS A CLAIM FOR FAILURE TO STATE A CASE WHERE INFORMAL ADMINISTRATIVE PROCEDURES APPLY WOULD BE DIFFERENT TODAY BECAUSE OALJ’S RULES OF PRACTICE AND PROCEDURE NOW EXPRESSLY ALLOW A PARTY TO MOVE FOR DISMISSAL BASED ON FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTEDIn Evans v. United States Environmental Protection Agency, ARB No. 2017-0008, ALJ No. 2008-CAA-00003 (ARB Mar. 17, 2020) (per curiam), the ALJ had granted dismissal under FRCP 12(b)(6) of Complainant’s several environmental whistleblower laws. The ARB affirmed the ALJ’s dismissal, and Complainant appealed to the 9th Circuit. While the case was pending before the court, the Secretary of Labor filed an unopposed motion to remand for the ARB to consider whether administrative whistleblower complaints filed with OSHA could be dismissed for failure to state a claim. In July 2012, the ARB held in its decision on remand that the ALJ erred in granting EPA’s motion to dismiss because “facial challenges to a complaint must occur in a manner consistent with informal administrative procedures.” The case was remanded to the ALJ. The ALJ then conducted a hearing and issued his decision on November 14, 2016.
Now again before the ARB, the ARB observed in a footnote that “since our remand the rules governing ALJ proceedings have been amended and now include a provision specifically allowing parties to submit motions to dismiss. See 29 C.F.R. § 18.70(c) (’A party may move to dismiss part or all of the matter for reasons recognized under controlling law, such as lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, or untimeliness. If the opposing party fails to respond, the judge may consider the motion unopposed.’).” Slip op. at 7, n.2.
[Nuclear and Environmental Digest XII C 4]
PROTECTED ACTIVITY; SPECULATIVE AND NOT REASONABLY GROUNDED POTENTIAL OR PERCEIVED VIOLATIONS[Nuclear & Environmental Whistleblower Digest XI A 2 b iii]
[Nuclear & Environmental Whistleblower Digest XI A 3]
MOTIVATING FACTOR CAUSATION; ADVERSE ACTIONS FOUND TO BE BASED ON COMPLAINANT’S INAPPROPRIATE BEHAVIOR AND SUPERVISOR’S BELIEF THAT COMPLAINANT POSED A GENUINE THREAT[Nuclear & Environmental Whistleblower Digest XI A 2 b iii]
[Nuclear & Environmental Whistleblower Digest XI A 3]
MOTIVATING FACTOR CAUSATION; CONSTRUCTIVE DISCHARGE; COMPLAINANT FOUND TO HAVE RESIGNED RATHER THAN TO HAVE BEEN CONSTRUTIVELY DISCHARGED WHERE THE RECORD SHOWED THAT COMPLAINANT’S UNHAPPINESS WAS NOT BASED ON DISCRIMINATION, HARASSMENT, OR RETALIATION BUT ON THE FACT THAT HE HAD BEEN PUNISHED FOR INAPPROPRIATE COMMENTS AND THE FACT THAT HE HAD BEEN ASSIGNED WORK HE DISLIKEDIn Evans v. United States Environmental Protection Agency, ARB No. 2017-0008, ALJ No. 2008-CAA-00003 (ARB Mar. 17, 2020) (per curiam), the ARB reversed the ALJ’s conclusion that EPA retaliated against Complainant in violation of the CAA, CERCLA, and SDW when one of EPA’s managers fabricated information related to an investigation into Evans’ conduct in the workplace, and that Complainant was entitled to $1.00 in nominal damages. Rather, the ARB dismissed the complaint.
This case had a long history and detailed factual and procedural history. In brief, Complainant worked in an EPA radiation lab division. He opposed a change in employee assignments to mandate that Radiation Lab members participate in emergency responses. Previously, such participation was voluntary, and Complainant was worried that imposing such responsibilities on unwilling and undertrained employees could create health and safety risks. Complainant, a union steward, submitted an affidavit in 2003 in support of an unfair labor practice (ULP) charge. Complainant declined to participate in a July 2004 training exercise and submitted a letter to the EPA Administrator criticizing managers and accusing them of certain violations. In May 2006, Complainant was accused of threatening shoot people at work. Complainant denied making the threats. Complainant was placed on administrative leave and an investigation launched. Complainant filed a whistleblower complaint with OSHA. After the investigation, Complainant received a seven day unpaid suspension and was directed to attending counseling upon his return to work. Once Complainant returned to work, the lab director considered Complainant dangerous and had an armed guard escort him to and from the building and monitor him throughout the day. In November 2006, Complainant was granted permission to use accumulated annual and sick leave based on a psychological assessment, but denied his request for an additional year of leave without pay. After EPA again rejected the leave without pay request in May 2007, Complainant supplemented his OSHA complaint. In August 2007, Complainant was removed from Federal service. Complainant again supplemented his OSHA complaint.
OSHA denied the complaint. An ALJ granted dismissal in March 2008, which was affirmed by the ARB. Complainant appealed to the 9th Circuit. While the case was pending before the court, the court granted the Secretary of Labor’s unopposed motion to remand for the ARB to consider a legal procedural matter. In July 2012, the ARB held that the ALJ erred in granting EPA’s motion to dismiss and remanded. The ALJ conducted a hearing and issued his decision on November 14, 2016.
Protected Activity
The first action claimed by Complainant to be protected activity under the environmental statutes was the affidavit Complainant submitted in support of the ULP charge. The ARB determined that the ALJ erred in finding this was protected activity because the affidavit did not include information about a violation of the Environment Acts.
The second action was Complainant’s letter to the EPA Administrator which included a complaint about the emergency response training Complainant had declined to participate in. In finding it to be protected activity, the ALJ had relied on language from the dissenting opinion in the ARB’s 2012 remand order. The dissenting member had “opined that good faith allegations under the Environmental Acts are protected ’even though the complaining employee may have been profoundly misguided or insufficiently informed in his assessment.’ D. & O. at 46, citing Sylvester v. Parexel Int’l, LLC, ARB No. 2007-0123, ALJ Nos. 2007-SOX-00039 and 2007-SOX-00042, slip op. at 34 (ARB May 25, 2011).“ The ARB stated that “[t]his is an incorrect interpretation of the legal standard regarding reasonably perceived violations.” The ARB elaborated:
To be afforded protection, a complainant’s assertion that a violation occurred must be subjectively and objectively reasonable. Lee v. Parker-Hannifin Corp., ARB No. 2010-0021, ALJ No. 2009-SWD-00003, slip op at 9 (ARB Feb. 29, 2012). The “subjective“ component of the reasonable belief is demonstrated by showing that the employee actually believed that the conduct of which he complained constituted a violation of relevant law. Id., slip op. at 9-10; see also Melendez v. Exxon Chems., ARB No. 1996-0051, ALJ No. 1993-ERA-00006, slip op. at 27-28 (ARB July 14, 2000). An objectively reasonable belief is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as complainant. Johnson v. The Wellpoint Co., Inc., ARB No. 2011-0035, ALJ No. 2010-SOX-00038, slip op. at 9 (ARB Feb. 25, 2013). A “profoundly misguided” or “insufficiently informed” opinion would not pass this test.
Id. at 10. The ALJ had acknowledged that environmental concerns had not been the primary focus of Complainant’s letter to the EPA Administrator, but concluded that complaints are protected activity under the environmental statutes if they also compass public safety and health or the environment. The ARB indicated that the ALJ’s conclusion was too broad:
Evans worked at the agency whose primary mission is protection of the environment. It is arguable that every statement he made in the course of his duties “touched on” the environment. But in the affidavit and letter, Evans was complaining about employee training and exercises. The fact that Evans complained about training and exercises performed by the Environmental Protection Agency does not automatically render those complaints protected under the Environmental Acts.
Id. at 10-11. The ARB determined that the ALJ’s conclusion that Radiation Lab employees need to response to emergencies “does not explain how the public benefits when those employees do not participate in emergency response training.” Id. at 11. The ARB acknowledged that the ALJ had noted alarming scenarios about how inadequately trained emergency responders could make situations worse, but found that “they also show how any interpretation of unsafe conditions from Evans’ statements require assumptions and speculation about what could transpire and not what is likely to.” Id. (emphasis as in original).
The third action relied upon as protected activity by Complainant was a portion of a performance appraisal in which Complainant objected to the emergency response program and how ill prepared employees could have environmental implications. Again, the ARB determined that Complainant’s concerns were speculative and not reasonably grounded in perceived violations.
The ARB, however, determined that the fourth action, filing a retaliation complaint with OSHA was protected activity, as it constitutes commencing or instituting a proceeding under the environmental acts.
Causation
Finding that some of the EPA’s adverse actions against Complainant were relevant to the case, the ARB next considered whether his protected activity was a motivating factor in those adverse actions. The ALJ found that a manager had fabricated a witness statement relating to the threats for which Complainant was placed on administrative leave. The ARB, however, concluded that because that fabrication had occurred prior to any protected activity, Complainant had not proved that EPA retaliated against him. The ARB also noted most of what Complainant characterized as retaliation was EPA’s response to Complainant’s inappropriate behavior and that a supervisor believed Complainant posed a genuine threat. The ARB also noted that Complainant’s threat had occurred only a month after a different person drove into the EPA property with a loaded gun and threatened violence, and thus the ARB found it reasonable that managers would take very seriously accusations of similar behavior.
The ARB found that a Notice of Proposed Removal and Notice of Decision on Proposed Removal were imposed because of Complainant’s threats of violence. The ARB found that Complainant’s requests for leave in November 2006 and May 2007 were rejected because he had run out of leave hours to use in lieu of working. The ARB found no evidence that EPA took these actions because of Complainant’s OSHA complaint.
Finally, the ARB agreed with the ALJ that Complainant was not constructively discharged, but had quit—the ARB citing the ALJ’s statement that Complainant’s refusal to return to work after extended leave was equivalent to a resignation. The ARB also cited the ALJ’s statement that Complainant “’left his job because he was unhappy, but that was not due to discrimination, harassment, or retaliation. He was unhappy because he had been punished for his inappropriate comments and because he had been assigned work he disliked.’ D. & O. at 68.” Id. at 13.
Kuhaulua v. County of Kaua’i Solid Waste Division, ARB No. 2017-0067, ALJ No. 2017-WPC-00001 (ARB Mar. 17, 2020) (per curiam) (Decision and Order)
Casenote(s):
[Nuclear & Environmental Whistleblower Digest XI A 3]
ADVERSE EMPLOYMENT ACTION; COMPLAINANT ABANDONED CONTENTION THAT DELAY IN PAYCHECK WAS ADVERSE ACTION WHERE HE PRESENTED NO ARGUMENT OR EVIDENCE TO CONTEST RESPONDENT’S ARGUMENT THAT POSTAL SERVICE WAS RESPONSIBLE FOR DELAY[Nuclear & Environmental Whistleblower Digest XI A 3]
ADVERSE EMPLOYMENT ACTION; CONSTRUCTIVE DISCHARGE; SUMMARY DECISION GRANTED WHERE COMPLAINANT RAISED NO GENUINE ISSUE OF MATERIAL FACT SUFFICIENT TO RESPOND TO RESPONDENT’S EVIDENCE THAT COMPLAINANT WAS ON DISABILITY LEAVE AND WOULD BE ALLOWED TO RETURN TO WORK UPON PROVISION OF A MEDICAL RELEASEIn Kuhaulua v. County of Kaua’i Solid Waste Division, ARB No. 2017-0067, ALJ No. 2017-WPC-00001 (ARB Mar. 17, 2020) (per curiam), Complainant filed a FWPCA complaint alleging that Respondent retaliated against him by withholding his paycheck for four days and constructively discharging him from employment. Respondent filed a motion for summary decision asserting that the paycheck delay was the result of the postal service and that there could be no constructive discharge because Complainant was still an employee. Respondent presented evidence that Complainant was on temporary disability leave and would be permitted to return to his prior job upon providing a medical release. Complainant filed an opposition but presented no evidence and cited no authority. The ARB indicated that Complainant abandoned the delayed check contention when he offered no argument to dispute Respondent’s arguments. In regard to the second alleged retaliatory act, Complainant argued that Respondent’s retention of Complainant on temporary total disability status amounted to constructive termination. The ALJ granted Respondent’s motion for summary decision as a matter of law. The ARB adopted the ALJ’s Order Granting Summary Decision on Reconsideration.
Walls v. Union Pacific Railroad Co., ARB No. 2018-0015, ALJ No. 2016-FRS-00069 (ARB Mar. 17, 2020) (per curiam) (Decision and Order)
Casenote(s):
ADVERSE EMPLOYMENT ACTION; SUPERVISOR’S ACT OF HAVING COMPLAINANT TALK TO NURSE ON CELL PHONE ON THE WAY TO THE HOSPITAL FOUND NOT TO BE A DENIAL, DELAY OR INTERFERENCE WITH MEDICAL TREATMENT UNDER THE FACTS OF THE CASE
ADVERSE EMPLOYMENT ACTION; RESPONDENT’S USE OF PRIVATE INVESTIGATOR FOR DAYTIME SURVEILLANCE OF COMPLAINANT FOUND NOT TO BE ADVERSE EMPLOYMENT ACTION UNDER THE FACTS OF CASE; LACK OF EVIDENCE THAT SURVEILLANCE CAUSED COMPLAINANT TO ALTER HIS ACTIVITIES OR THAT COMPLAINANT OR HIS FAMILY HAD PERSONAL ENCOUNTERS WITH UNKNOWN PERSONS
In Walls v. Union Pacific Railroad Co., ARB No. 2018-0015, ALJ No. 2016-FRS-00069 (ARB Mar. 17, 2020) (per curiam), the ARB affirmed the ALJ’s Decision and Order dismissing Complainant’s FRSA complaint on the ground that Complainant failed to establish by a preponderance of the evidence that he suffered an unfavorable personnel action. Complainant was injured in a derailment on September 3, 2015, and on September 9, 2015 requested transportation to the hospital. He followed his physician’s treatment plan restricting him from full-time work from September 9, to October 20, 2015. The parties stipulated that Complainant engaged in protected activity.
Complainant alleged that Respondent violated the FRSA by delaying and interfering with his medical treatment on September 9, 2015. The ARB, however, found that substantial evidence supported the ALJ’s factual determination that, although Complainant’s supervisor had handed Complainant a cell phone to speak to a nurse while the supervisor was driving Complainant to the hospital, Complainant voluntarily spoke to the nurse and this incident had not caused a denial, delay or interference in transporting Complainant to the hospital and securing medical treatment. The ALJ also found that the nurse had not attempted to dissuade or interfere with Complainant obtaining medical treatment; instead, the ALJ found that the nurse facilitated rather than interfered with Complainant’s medical care.
Complainant also alleged that Respondent’s periodic surveillance of him by a private investigator while Complainant was off work was stressful and rose to the level of adverse action. The ARB, however, ruled that the ALJ’s conclusion that there had been no adverse personnel action with respect to the surveillance was supported by substantial evidence and in accordance with law. The ARB quoted the ALJ’s decision in this regard:
The report makes clear that the private investigator followed Complainant to his doctor’s appointments and parked outside his home during the daytime hours only. There is no indication the private surveillance caused Complainant to alter his daily living activities in any manner or resulted in Complainant or any of his family members having any personal encounters with unknown persons. Consequently, the undersigned concludes that, based on the facts presented in this case, the private surveillance of Complainant was not an adverse action and would not dissuade a reasonable worker from bringing a charge of discrimination.
Slip p. at 5, quoting ALJ’s D. & O. at 23.
Gordon v. Brindi Trailer and Service, Inc., ARB No. 2017-0054, ALJ No. 2016-STA-00019 (ARB Mar. 13, 2020) (per curiam) (Decision and Order)
Casenote(s):
[STAA Digest V B 1 c iv]
[STAA Digest V B 2 B]
PROTECTED ACTIVITY; CALLING THE STATE POLICE AND PRESENTING EMPLOYER’S VEHICLE FOR INSPECTION IS PROTECTED ACTIVITY PURSUANT TO 49 U.S.C. §§ 31105(a)(1)(A) AND 31105(a)(1)(B)(i); WHERE, HOWEVER, COMPLAINANT DROVE THE TRUCK TO THE INSPECTION STATION, HE DID NOT ALSO ENGAGE IN REFUSAL-TO-DRIVE PROTECTED ACTIVITY[STAA Digest IV B 2 e]
ADVERSE EMPLOYMENT ACTION; VOLUNTARY QUIT OR RESIGNATION; ARB FOUND UNDER THE FACTS OF THE CASE, AND THE LACK OF CREDIBLE EVIDENCE ABOUT WHAT HAPPENED, THAT IT COULD NOT BE CONCLUDED THAT RESPONDENT TREATED COMPLAINANT’S ACTIONS — RAISING SAFETY CONCERNS, TAKING THE TRUCK TO AN INSPECTION STATION, ABANDONING THE TRUCK WHEN IT DID NOT PASS INSPECTION, AND NEVER RETURNING TO WORK — AS A VOLUNTARY QUIT OR RESIGNATION; THE ARB NOTED THAT THERE WAS NO EVIDENCE THAT RESPONDENT TOOK ANY STEPS TO REMOVE COMPLAINANT AS AN EMPLOYEEIn Gordon v. Brindi Trailer and Service, Inc., ARB No. 2017-0054, ALJ No. 2016-STA-00019 (ARB Mar. 13, 2020) (per curiam), the ARB reversed the ALJ’s conclusion that Respondent violated the STAA when it terminated Complainant’s employment in retaliation for raising safety concerns.
Complainant was Respondent’s only employee. From the time he began work, Complainant expressed dissatisfaction with the condition of Respondent’s only truck — a 2001 Volvo, which near the date of the protected activity had been driven 602,218 miles. Complainant threatened to resign on February 11, 2012 because Respondent would not repair the truck, but he did not do so. Rather, on February 15, 2012 he picked up a load. On the route, Complainant met with Respondent’s owner (Urbina) to receive paperwork and money for tolls, and assertedly again complained about the condition of the truck. Complainant then drove about 200 miles to his home.
While at home, Complainant contacted the Pennsylvania DOT for an inspection. According to Complainant, he wanted to be near home in case the vehicle was taken out of service. PennDOT instructed Complainant drive 10 miles to an inspection site, which he did on February 20, 2012. Inspectors identified several violations and produced a report. Complainant signed the report, removed some items from the truck before abandoning it, and called his mother for a ride home. The parties disputed what happened thereafter. The ALJ found both Complainant and Respondent’s owner lacked credibility on certain points and did not credit either regarding communications during or after the inspection. The ALJ concluded that “(1) Gordon’s ’actions of packing up and removing his belongings, as well as arranging for his own ride home after the February 20, 2012 inspection was an ambiguous departure;’ (2) no evidence was presented indicating that Gordon ’provided any definitive indication to Mr. Urbina that he intended to quit or resign on February 20, 2012;’ and (3) therefore Urbina interpreted Gordon’s actions ’as abandonment, i.e., a quit or resignation and therefore must be deemed to have discharged’ him.” Slip op. at 4-5, quoting from ALJ decision.
On appeal, the ARB found that Complainant “engaged in STAA-protected activity pursuant to 49 U.S.C. §§ 31105(a)(1)(A) and 31105(a)(1)(B)(i) when he called the Pennsylvania State Police and presented Urbina’s vehicle for inspection.” Id. at 5. The ARB noted, however, that Complainant continued to drive after raising safety concerns about the vehicle and had testified inconsistently about his safety concerns, and determined that “to the extent that turning the vehicle in for inspection constitutes a refusal to drive, we cannot conclude that Gordon did so because he had a reasonable apprehension of serious injury to himself or the public because of the condition of Urbina’s vehicle.”
The ARB disagreed with the ALJ’s conclusion that Complainant had been subjected to an adverse employment action. The ARB found that Complainant’s departure from the inspection site had not been ambiguous. He knew that the vehicle would be impounded and thus arranged for the inspection near his home. It was not clear that Complainant actually called Respondent’s owner on the date of the inspection. The record did show that Complainant never drove again for Respondent, that Complainant is presently physically incapable of driving, and that he was going to resign shortly after February 11, 2012. The record also showed that Respondent’s owner was dissatisfied with Complainant’s actions. Nonetheless, the ARB determined that this was insufficient to show adverse action: “But none of this information shows that Urbina took any steps to remove Gordon as an employee of Brindi Trailer. While the ALJ finds to the contrary, this is not a case in which an employer has chosen ’to treat an equivocal statement or action by an employee as a resignation’ or ’to interpret an employee’s actions as a voluntary quit or resignation.’ . . . Instead, this is a case in which neither party presented credible evidence to establish what took place after an employee engaged in STAA-protected activity.” Id. at 6 (citation to ALJ decision omitted).
Shi v. Moog, Inc., ARB No. 2017-0072, ALJ No. 2016-AIR-00020 (ARB Mar. 13, 2020) (per curiam) (Order Denying Request)
Casenote(s):
The ARB denied Complainant’s request in a letter for “answers or explanation”” from the ARB Judges regarding its decisions in the matter. The ARB noted that Complainant could appeal its decision by filing a timely petition pursuant to 29 C.F.R. § 1979.112 (Judicial review).
Weeks Marine, Inc., ARB No. 2017-0076, ALJ No. 2009-DBA-00006 (ARB Mar. 10, 2020) (Decision and Order of Remand)
Casenote(s):
LODGING COSTS ABOVE COLLECTIVE BARGAINING AGREEMENT NEGOTIATED PER DIEM AS DAVIS BACON ACT REIMBURSABLE; ADMINISTRATOR FAILED TO REBUT PRESUMPTION THAT LODGING IS FOR THE BENEFIT OF EMPLOYEES WHERE: EMPLOYEES WERE REQUIRED TO TRAVEL IF THEY WANTED TO REMAIN ACTIVELY EMPLOYED—EMPLOYEES HIRED OFF OUT-OF-WORK LIST OF LOCAL UNION EMPLOYEES DID NOT HAVE EXPECTION OF WORKING IN ANY ONE LOCATION OR PRIMARILY IN THEIR PLACE OF RESIDENCE—CBA PROVIDED FOR A PER DIEM—EMPLOYEES STAYED AT MOTELS OR HOTELS BECAUSE THEY WERE NOT RESIDENTS OF THE AREA
In Weeks Marine, Inc., ARB No. 2017-0076, ALJ No. 2009-DBA-00006 (ARB Mar. 10, 2020), the ARB had previously remanded the case for the ALJ to indicate what evidence was weighed when finding that lodging secured for nine Local 25 employees was primarily for the benefit of Weeks Marine, Inc. (“Weeks”), the contractor on a dredging project subject to the Davis-Bacon Act (“DBA”). The question was whether Weeks was liable for lodging costs above a $35 per diem provided for by the collective bargaining agreement. On remand, the ALJ made further findings of fact, weighed the balance of the benefits, and again concluded that the housing primarily benefited Weeks. The ALJ ordered payment of $17,006.55 to the Local 25 employees for the underpayment. On appeal, the ARB reversed, vacated the ALJ’s award of relief, and remanded with instructions for the ALJ to deny the claim for relief.
The ARB first outlined the relevant provisions of the DBA, the Copeland Act, the Fair Labor Standards Act, the implementing regulations, and the Second Circuit’s decision in Soler v. G. & U. Inc., 833 F.2d 1104 (2d Cir. 1987). The ARB noted that under Soler, the Administrator has the burden to rebut a presumption that lodging is for the benefit of the employees by showing that the lodging instead benefited the employer. The ARB stated that it agreed with Weeks that “the DBA does not affirmatively require an employer to pay employee lodging costs in addition to prevailing wage and fringe benefits and the ALJ erred in so concluding.” Slip op. at 5. The ARB also looked to the Wage and Hour Division’s Field Operations Handbook (“FOH”) for guidance on what constitutes rebuttal evidence. Taking all this into consideration, the ARB held that
the Administrator can rebut the presumption that lodging is primarily for the benefit of the employee by showing that the employee fits under the on-the-road exception, where the employee is required to live on site, where the employee has to be “on call,” or where the employee is burdened by the lodging for the convenience of the employer.
Id. at 7.
In the instant case, the ARB found that testimony that most dredging jobs are not near employees’ homes and require employees to travel to the work site was sufficient to invoke the presumption that the lodging secured by Weeks for the Local 25 employees was for the benefit of those employees. The ARB was not persuaded by the findings relied on by the ALJ to find that the Administrator rebutted the presumption: that dredging employers need experienced and qualified employees to further the employer’s job; that Local 25 employees were more specialized that Local 138 employees, as they were capable of operating more sophisticated machinery but who may live outside the commuting area; that the CBA’s partial payment supported an inference that the expense benefits the employer; and that local lodging allowed the employees to work long shifts which allowed for timely completion of the project.
The ARB determined that none of these reasons was relevant rebuttal. The ARB observed that the ALJ had not cited findings that Local 25 employees were “on the road” or that Weeks mandated where they stayed. The ARB stated the Local 25 employees were not “on call” and that it could not be said that where the employees chose to live was for the convenience of Weeks. The ARB was not persuaded by the comparison to Local 138 employees as those employees worked under a different CBA. The ARB also distinguished the caselaw precedent relied on by the ALJ.
The ARB determined that the ALJ had made sufficient findings of fact for the ARB to conclude that the WHD failed to rebut the presumption. Specifically, the ARB pointed to the following findings of fact:
- Local 25 members are required to travel throughout the territorial zone covered by the Local 25 CBA if they want to remain actively employed.
- Employees hired off of an out-of-work list of Local 25 employees “are not hired with the expectation that they are going to work for the company in any one location or to work primarily in their place of residence.”
- The CBA provides for a minimum subsistence allowance of thirty-five dollars a day to defray the costs of obtaining housing, meals, laundry, and work clothes.
- The Employees stayed at motels or hotels during the Fire Island job because they were not residents of the area and had to reside within commutable distance of the job site.
Id. at 8-9 (citations to ALJ decision omitted).
PERSUASIVE VALUE OF WAGE AND HOUR DIVISION’S FIELD OPERATIONS HANDBOOK (“FOH”); ARB CITES SIXTH CIRCUIT DECISION AFFORDING THE FOH SKIDMORE DEFERENCE
In Weeks Marine, Inc., ARB No. 2017-0076, ALJ No. 2009-DBA-00006 (ARB Mar. 10, 2020), the ARB looked to (in addition to the statute, regulations and caselaw) the Wage and Hour Division’s Field Operations Handbook (“FOH”) for the agency views on what evidence may rebut the presumption that lodging is for the benefit of the employee, and thus reimbursable under the interplay of the Davis Bacon Act, Copeland Act, and Fair Labor Standards Act. In this regard, the ARB noted the Eighth Circuit’s decision in Baouch v. Werner, Enter., 908 F.3d 1107 (6th Cir. 2018), in which the court determined that agency interpretative documents—like the FOH—are not afforded the force of law and therefore do not warrant Chevron-style deference, but nonetheless are entitled to respect under Skidmore based on their persuasiveness. The court stated that the FOH is not dispositive—but it is persuasive and cannot be discounted because DOL handles and regulates the application of the FLSA.
Administrator, Wage and Hour Div., USDOL v. Price Gordon, LLC, ARB No. 2019-0032, ALJ No. 2017-SCA-00008 (ARB Mar. 9, 2020) (per curiam) (Decision and Order)
Casenote(s):
OWNER OF SERVICE-DISABLED VETERAN-OWNED SMALL BUSINESS (SDVOSB) WAS NOT ABSOLVED OF LIABILITY FOR SCA BACKWAGES ACCRUED DURING PERIOD IN WHICH AN EMPLOYEE WAS MANAGING THE SCA CONTRACT; CORPORATE OFFICERS WHO ARE RESPONSIBLE FOR CONTROL ARE LIABLE UNDER THE SCA, AND THE SDVOSB PROGRAM
DEBARMENT; ALJ DID NOT HAVE AUTHORITY TO RULE ON VAILIDITY OF REGULATION AND ITS THREE-PART ANALYTIC TEST FOR “UNUSUAL CIRCUMSTANCES” SUPPORTING RELIEF FROM DEBARMENT; ALJS’ ANALYTIC APPROACH, HOWEVER, WAS HARMLESS ERROR WHERE HE NONETHELESS APPLIED THE RELEVANT FACTORS AND CONSIDERATIONS; ALJ DID NOT ERR IN DECLINING TO INTERPRET RESPONDENTS’ DECISION TO LITIGATE AS EVIDENCE OF CONTUMACIOUS NONCOMPLIANCE
In Administrator, Wage and Hour Div., USDOL v. Price Gordon, LLC, ARB No. 2019-0032, ALJ No. 2017-SCA-00008 (ARB Mar. 9, 2020) (per curiam), two individuals, Price and Beasley, formed LMC Med Transportation LLC (LMC), with Price as the owner and Beasley as his employee. LMC contracted with Veterans Affairs on May 1, 2015, to provide non-emergency medical transportation services to veteran beneficiaries. The contract required payment of SCA prevailing wages and fringe benefits for drivers and dispatchers. Beasley and other staff were delegated management responsibility on this contract. In June 2016, however, Price resumed direct management of the contract following complaints from the VA. As part of this reorganization, Beasley was ousted and the company changed its name to Price Gordon, LLC d/b/a/ Veteran National Transportation (VNT). In 2017, the WHD Administrator filed a complaint alleging that Respondent failed to pay certain service employees the SCA wages and fringe benefits required by the contract and the SCA.
Following a ruling on summary decision and a hearing, the ALJ found that the Respondents violated the terms of the SCA by not paying SCA wages and fringe benefits for all hours worked in the performance of the contract. The ALJ then examined the individual liability of Price and Beasley. Beasley failed to answer pleading or participate in the proceeding, and the ALJ found him jointly and severally liable for all violations. The ALJ found that Price was only liable for the violations occurring after he resumed control and supervision on the contract. The ALJ found “unusual circumstances” warranting relieving Price and VNT from debarment.
Owner was not absolved of liability for back wages for period during which management had been delegated to an employee
On appeal, the first issue was whether the ALJ erred in limiting Price’s liability to activities after he resumed control. The ARB held that the fact that management responsibilities had been delegated to Beasley at the outset of the contract did not relieve Price from liability for the entire back pay amount. The ARB wrote:
The regulations [at 29 C.F.R. §§ 4.187(e)(2),(3),(4)] provide that corporate officers who control or who are responsible for control of the corporate entity, and who by their action or inaction cause or permit a contract to be breached, are “parties responsible.” Price’s status as sole owner meant that he was a “party responsible” and remained responsible for control of the corporate entity at all times. We also note that Price was the service-disabled veteran who was awarded this contract based on his status as such. The rules and regulations implementing the [service-disabled veteran-owned small business] SDVOSB program require that the SDVO maintain control and day-to-day operations of the entity. 13 C.F.R. Part 25.
Slip op. at 5-6 (emphasis as in original) (footnote omitted).
Debarment; ALJ’s use of “totality of the circumstances” test harmless error where he nonetheless applied the necessary factors and considered the appropriate circumstances from the ARB’s three-part test; Respondent’s good faith decision to litigate found not to be evidence of contumacious noncompliance
The second issue on appeal was whether the ALJ erred in finding “unusual circumstances” warranting relieving Price and VNT from debarment. The ALJ criticized the “three-part test” of the regulations and ARB precedent (the ALJ giving the example of Administrator, Wage and Hour Division vs. Ares Group, Inc., ARB Case No. 12-023 (August 30, 2013)). On appeal, the Administrator argued that ALJ erred in finding that VNT and Price demonstrated “unusual circumstances” — the Administrator arguing that the ALJ erroneously applied a “totality of the evidence” and a “rule of lenity” analysis. The Administrator also asserted that the ALJ “erroneously focused on a purported ‘good faith disagreement’ or ‘bona fide legal issue of doubtful certainty’ between the parties as factors against debarment.” Id. at 7.
The ARB cited 29 C.F.R. § 4.188(b)(3) and Hugo Reforestation, Inc., ARB No. 99-003, ALJ No. 1997-SCA-00020 (ARB Apr. 30, 2001, and determined that the ALJ erred in finding that the three-part test was not applicable to debarment proceedings, noting that neither the ARB nor the ALJ have the authority to rule on the validity of the regulations. The ARB concluded, however, “that the ALJ’s error is harmless because he did in fact apply the necessary factors and consider the appropriate circumstances in finding that unusual circumstances relieve Respondents from debarment.” Id. at 8. The ARB elaborated:
For example, the ALJ found that Respondents did not willfully intend to violate the Act and were not culpably neglectful toward their responsibilities. . . . The ALJ found that there was no evidence that Respondents previously violated the SCA. The ALJ noted that Price sought to ascertain whether its payroll practices violated the Act and that there was no evidence that Respondents misrepresented its payroll practices or falsified employment records to conceal practices. . . . Rather, Respondents and the Administrator had a “good faith” disagreement on the meaning and interpretation of the SCA’s requirements upon which Respondents litigated and ultimately prevailed in part. . . . The ALJ also found that Respondents did not fail to cooperate in the investigation and distinguished any failure to provide sufficient assurances of future compliance. The ALJ refused to interpret Respondents’ decision to litigate as evidence of contumacious noncompliance. [ALJ decision, id.] at 16-17 & n.75 (arguing that an employer has the ability to contest genuine, bona fide legal issues without fear of forfeiting eligibility for future government contracts). The ALJ noted that Respondents were not able to pay owed back wages in large part because of the withholding of contract payments that accompanied the Administrator’s process against Respondents. . . .
Id. at 8-9 (some citations to ALJ decision omitted).
Fort v. Landstar Transportation Logistics, Inc., ARB No. 2018-0026, ALJ No. 2017-STA-00028 (ARB Mar. 6, 2020) (per curiam) (Decision and Order)
Casenote(s):
[STAA Digest V B 2 d]
PROTECTED ACTIVITY; COMPLAINANT’S RAISING OF CONCERNS ABOUT PROBLEMS WITH ELECTRONIC LOGGING DEVICES FOUND NOT TO IMPLICATE SAFETY CONCERNS COVERED BY THE STAAIn Fort v. Landstar Transportation Logistics, Inc., ARB No. 2018-0026, ALJ No. 2017-STA-00028 (ARB Mar. 6, 2020) (per curiam), Complainant alleged that she was discharged from the log compliance department in retaliation for raising safety concerns about three drivers. The ALJ granted Respondent’s motion for summary decision finding that the concerns raised by Complainant were not protected activity under the STAA. The ARB affirmed the grant of summary decision.
Complainant’s first concern was that she had recommended disqualifying a driver who had accumulated 76 violations for log compliance issues. An agent requested that the Director of Compliance consider that the driver was an older, long-term driver who did not understand electronic logs (ELD). The agent did not disqualify the driver but instead referred him for additional training on ELD. Although Complainant asserted that the agent had improper motives for retaining the driver, the ALJ concluded that a reasonable person would not believe that electronic logging problems would constitute a violation of a motor vehicle regulation. The ALJ also was unable to find a regulation implicated by the agent’s decision to retain the driver and give him retraining.
Complainant’s second concern was that she had attempted unsuccessfully to call a driver to counsel him about log compliance, Complainant having received an Hours of Service alert from that driver’s ELD. When the driver called back the next day, a supervisor advised another employee that Complainant was in a meeting and to tell the driver to call back the next day. Complainant reported this to the Director of Compliance. The ALJ concluded that “while asking a driver to call back at a later time may be inconsistent with company policy and department practice, Complainant’s concern was not about a violation of any sort.” Slip op. at 4 (footnote omitted).
Complainant’s third concern involved a mock DOT audit during which auditors noted a driver’s log indicating that she had been in her sleeper berth for three weeks. After an investigation, it was determined that the driver had taken her truck to the shop and had forgotten to change her duty status. That driver verbally consented to Respondent changing her status remotely. The ALJ found no regulation that would forbid an employer from changing the duty status of a driver, and concluded that no reasonable person would believe that Respondent falsified the log or that the third driver had been in the sleeper berth for three weeks.
The ARB found that “none of Complainant’s reports concerned violations of the STAA or safety related matters; rather, each complained-of-incident had to do with electronic logging device problems and not safety matters. ” Id.
Yellott v. Packaging Corp of America, ARB No. 2019-0055, ALJ No. 2017-SDW-00001 (ARB Mar. 6, 2020) (per curiam) (Decision and Order Approving Settlement and Dismissing Complaint with Prejudice)
Casenote(s):
The ARB approved the parties’ settlement agreement and dismissed the complaint with prejudice.