Bellmeyer v. Loyco Trucking, LLC, ARB No. 2019-0021, ALJ No. 2017-STA-00070 (ARB Apr. 29, 2020) (Order of Dismissal)
The ARB dismissed Complainant’s petition for review after he failed to respond to an order to show cause why the case should not be dismissed for failure to file an opening brief.
Swint v. NetJets Aviation, Inc., ARB No. 2017-0051, ALJ Nos. 2014-AIR-00021, 2016-AIR-00011 (Apr. 27, 2020) (per curiam) (Decision and Order)
The ARB summarily affirmed the ALJ’s conclusion that none of the employment actions described in Complainant’s AIR21 complaint were taken in retaliation for protected activity. Although the ALJ erroneously concluded that two of the alleged retaliatory actions were not before him because they were not investigated by OSHA, the ARB found the error harmless because those claims failed on alternative grounds.
Brooks v. Agate Resources, LLC, ARB No. 2019-0078, ALJ No. 2018-SOX-00046 (ARB Apr. 21, 2020) (per curiam) (Decision and Order)
SUMMARY DECISION DISMISSING SOX COMPLAINT THAT ALLEGED SAME SET OF FACTS AS AN EARLIER COMPLAINT THAT HAD BEEN FULLY ADJUDICATED AND DISMISSED AS UNTIMELY FILED
In Brooks v. Agate Resources, LLC, ARB No. 2019-0078, ALJ No. 2018-SOX-0046 (ARB Apr. 21, 2020) (per curiam), the ARB affirmed the ALJ’s grant of summary decision dismissing Complainant’s SOX claim where “Complainant filed the [instant] complaint alleging the same set of facts as an earlier complaint, which a different ALJ had concluded was untimely filed. The ARB affirmed this earlier decision on March 25, 2019. Brooks v. Agate Res., LLC, ARB No. 2017-0033, ALJ No. 2016-SOX-00037 (ARB Mar. 25, 2019).”
Schell v. Martin Marietta, ARB No. 2017-0079, ALJ No. 2015-SWD-00001 (ARB Apr. 21, 2020) (per curiam) (Decision and Order)
The ARB summarily affirmed, as supported by the record, the ALJ’s finding that Complainant failed to establish by a preponderance of the evidence that Respondent’s placement of Complainant on a performance improvement plan and terminating her employment were motivated by her protected activity.
Gummala v. Carnival Corp., ARB No. 2018-0053, ALJ No. 2015-SPA-00001 (ARB Apr. 20, 2020) (per curiam) (Decision and Order)
COVERED RESPONDENT; 2016 AMENDMENT TO DEFINITIONS PROVISION OF SEAMAN’S PROTECTION ACT’S IMPLEMENTING REGULATIONS TO INCLUDE BUSINESS ENTITIES WHOSE PRINICPAL PLACE OF BUSINESS OR BASE OF OPERATIONS IS IN THE UNITED STATES FOUND NOT TO HAVE RETROACTIVE EFFECT
In Gummala v. Carnival Corp., ARB No. 2018-0053, ALJ No. 2015-SPA-00001 (ARB Apr. 20, 2020) (per curiam), Complainant was a photographer aboard the Carnival vessel Fascination, which was operated by Carnival Cruise Lines and flew a Bahamian flag. Carnival Cruise Lines was a brand or division of Carnival Corporation, which is incorporated in Panama but has its principal place of business in Miami, Florida. Complainant, as a citizen of India residing in Chile, filed a Seaman’s Protection Act employee protection complaint alleging that he was fired for making safety complaints. The ALJ initially dismissed the complaint on the ground that Complainant was not covered “seaman ” because the vessel was not owned by a citizen of the U.S. The ARB remanded for the ALJ to consider whether Carnival Cruise Lines was a vessel owner. On remand, the parties stipulated that Carnival Cruise Lines was not a stand-alone legal entity. The ALJ concluded that neither Carnival Corporation nor Carnival Cruise Lines, were citizens of the United States for purposes of SPA’s coverage. The decision was based on the USDOL interim regulations in effect at the time of the alleged retaliation in 2014. Those regulations were amended in 2016 to change the definition of “Citizen of the United States” to, Inter alia, include “any corporation, partnership, association, or other business entity “whose principal place of business or base of operations is in a State. . . .” The definition of a corporate citizen of the United States in the 2013 interim regulations did not include “principal place of business” in a state as a factor.
On appeal, Complainant argued that the ALJ erred in ruling that the 2016 definition did not apply retrospectively to his case. Complainant pointed to 29 C.F.R. § 1986.101(r), which provides that future amendments to the SPA that affect the definition of a term or terms listed in that section will apply in lieu of the regulatory definition. The ARB agreed with the ALJ that § 1986.101(r) addresses the relationship between the SPA and the implementing regulations and not the retroactive application of the 2016 regulations. Complainant next argued that the SPA regulations are procedural rather than substantive, and that application of the 2016 definitions would regulate secondary conduct and not create retroactive effects. The ARB, however, agreed with the ALJ that applying the 2016 definition on “principal place of business” would attach new legal consequences to Respondent under the facts of the case. The ARB was not persuaded by Complainant’s argument that the 2016 regulation was merely a clarification. The ARB quoted from the regulatory history to show that OSHA was changing the definition rather than merely clarifying it. The ARB thus affirmed the ALJ’s finding that Carnival Corporation was not a covered Respondent under the regulations in effect at the relevant time.
Jinna v. MPRSoft, Inc., ARB No. 2019-0070, ALJ No. 2018-LCA-00039 (ARB Apr. 15, 2020) (per curiam) (Decision and Order Affirming in Part and Modifying in Part)
LCA BACK WAGES; ARB MODIFIES ALJ’S CALCULATION OF BACK WAGES OWED IN FACT-INTENSIVE CASE
In Jinna v. MPRSoft, Inc., ARB No. 2019-0070, ALJ No. 2018-LCA-00039 (ARB Apr. 15, 2020) (per curiam), the only issue on appeal was the amount of back wages owed to Complainant on his LCA complaint. The case was fact specific. Respondent had not provided adequate records on Complainant’s wages at the hearing, and the ARB agreed with the ALJ that Complainant met his initial burden of showing that he was underpaid by Respondent. The ARB agreed with some of the ALJ’s findings but not with other —the ARB finding that the ALJ should have given greater credibility to the 2018 W-2 and Earnings statement presented by Respondent. The ARB thus modified the total amount of back wages owed to Complainant.
BONA FIDE TERMINATION; MERELY STATING THAT A RETURN FLIGHT “WILL BE PROVIDED” IS INSUFFICIENT TO SHOW COMPLIANCE WITH PAYMENT-FOR-TRANSPORTATION-BACK-TO-EMPLOYEE’S –HOME-COUNTRY ELEMENT OF BONA FIDE TERMINATION STANDARD
In Jinna v. MPRSoft, Inc., ARB No. 2019-0070, ALJ No. 2018-LCA-00039 (ARB Apr. 15, 2020) (per curiam), although the only issue on appeal was the amount of LCA back wages owed to Complainant, the ARB addressed a statement by Respondent in its Appeal Brief that it completed a bona fide termination when if offered the H-1B worker transportation back to India. The ARB noted that there are three elements to a bona fide termination, and that Respondent had not notified immigration officials of the terminated employment relationship and did not pay Complainant for transportation back to his home country. The ARB quoted the ALJ as correctly ruling that “ ‘stating that return flights “will be provided” does not constitute proof of actual payment of the reasonable transportation cost for [Complainant’s] return to his home country.’” Slip. op at 8, n. 4, quoting ALJ’s decision.
Vasquez v. Caterpillar Logistics & EA Staffing Svs., ARB No. 2017-0066, ALJ No. 2016-MAP-00001 (ARB Apr. 16, 2020) (per curiam) (Decision and Order)
COVERED EMPLOYER; ALJ PROPERLY GRANTED SUMMARY DECISION DISMISSING MAP21 COMPLAINT AGAINST CATERPILLAR LOGISTICS WHERE COMPLAINANT FAILED TO RAISE A GENUINE ISSUE OF MATERIAL FACT TO SHOW THAT CATERPILLAR RECEIVED, STORED, OR SHIPPED PARTS FOR MOTOR VEHICLES AT THE WAREHOUSE WHERE COMPLAINANT WORKED
In Vasquez v. Caterpillar Logistics & EA Staffing Svs., ARB No. 2017-0066, ALJ No. 2016-MAP-00001 (ARB Apr. 16, 2020) (per curiam), Complainant worked as a picker at Caterpillar Logistics’ warehouse, and alleged that Respondents retaliated against him in violation of the whistleblower protection provision of the Moving Ahead for Progress in the 21st Century Act (MAP21), 49 U.S.C. § 30171(a). To be liable under MAP21, a respondent must be a motor vehicle manufacturer, parts supplier, or dealership.
The ARB affirmed the ALJ’s order granting summary decision in favor of Caterpillar Logistics. The ALJ found that Complainant failed to raise a genuine issue of material fact that the Caterpillar facility at which Complainant worked received, stored, or shipped motor vehicle parts for motor vehicles which would make Respondents subject to MAP21. Complainant had submitted a declaration stating that he witnessed intermingling of the processing and shipping of materials used for on and off road use, and submitted a parts list compiled by Complainant. Respondent submitted a supplemental declaration in response from its operations manager affirming that the warehouse only shipped parts for off-road equipment and generators; indicating that many of the parts numbers listed by Complainant were invalid and the ones that were valid were shipped for use for generators and off-highway machines; and stating that pickers were not trained or informed of the end use of parts shipped from the warehouse. The ALJ found Complainant failed to offer evidence showing personal knowledge of the end use of the parts he worked with. The ALJ found that the mere allegation that the parts would be used on the road, without more, did not raise a genuine issue of material fact. On review on appeal, the ARB determined that Complainant had not identified any errors of law or facts to show that the ALJ’s findings were wrong.
Complainant’s appeal had focused exclusively on the grant of summary decision regarding Caterpillar; the ARB ruled that Complainant thus waived any argument as to the other Respondent, EA Staffing.
Green v. Opcon, Inc., ARB No. 2018-0007, ALJ No. 2017-TSC-00002 (ARB Apr. 9, 2020) (per curiam) (Decision and Order)
COVERED EMPLOYEE UNDER THE CAA, SWDA AND TSCA WHISTLEBLOWER PROVISIONS; PROJECT MANAGER OF SUBCONTRACTORS ON VA RENOVATIONS PROJECT FAILED TO ESTABLISH THAT HE HAD AN EMPLOYMENT RELATIONSHIP WITH THE NAMED RESPONDENTS (THE CONTRACTORS ON THE PROJECT) UNDER BOTH THE DARDEN COMMON LAW TEST AND THE SEETHARAMAN “CONTROL” TEST; POWER TO REMOVE AN EMPLOYEE FROM A PARTICULAR PROJECT IS NOT, STANDING ALONE, SUFFICIENT TO MEET CONTROL TEST
In Green v. Opcon, Inc., ARB No. 2018-0007, ALJ No. 2017-TSC-00002 (ARB Apr. 9, 2020) (per curiam), Complainant was a project manager for two subcontractors working on a Veteran’s Administration (VA) renovations project. He alleged that the Respondent contractors ordered the subcontractors to work with and dispose of asbestos-containing materials without following applicable regulations, and that when he objected to and opposed those orders, Respondents retaliated by ordering the subcontractors to remove Complainant from the VA projects. OSHA dismissed the complaint on the ground that Complainant was not a covered employee under the environmental whistleblower statutes. The ALJ issued an order to show cause on the question, and ultimately dismissed the complaint on summary decision on the ground that Complainant was not a covered employee under the employee protection provisions of the Clean Air Act, the Solid Waste Disposal Act and the Toxic Substances Control Act. The ARB affirmed the dismissal.
Common law test
The ALJ applied the common law test of agency from Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) and its progeny. The ARB found that the ALJ conducted a well-reasoned application of the test to the undisputed facts: there was no evidence that Respondents controlled or supervised Complainant’s day-to-day work; that Respondents directed the manner in which Complainant completed his tasks; that Respondents played a role in the development of Complainant’s skills or provided Complainant training; that Respondents and Complainant had anything more than just a temporary and indirect relationship; or that Respondents conferred any pay or benefits on Complainant.
On appeal, Complainant contended that the ALJ should have applied a “control” test. The ARB did not decide whether the common law test or the control test applies, but instead concluded that Complainant failed to demonstrate an employment relationship with Respondents under either test. The ARB cited Seetharaman v. Gen. Elec. Co., ARB No. 2003-0029, ALJ No. 2002-CAA-00021, slip op. at 5 (ARB May 28, 2004); accord Stephenson v. NASA, ARB No. 1996-0080, ALJ No. 1994-TSC-00005, slip op. at 3 (ARB Feb. 13, 1997), for the proposition that the crucial factor under the control test is “‘whether the respondent acted in the capacity of an employer, that is, exercised control over, or interfered with, the terms, conditions, or privileges of the complainant’s employment.’” Slip op. at 6, quoting Seetharaman, slip op. at 5. The ARB said that “[s]uch control includes ‘the ability to hire, transfer, promote, reprimand, or discharge the complainant, or influence another employer to take such action against a complainant . . . .’” Id., quoting Seetharaman, slip op. at 5.
In the instant case, Complainant pointed only to Respondents’ power to remove him from the VA Projects. The ARB cited authority stating that “[i]n the context of putative indirect employers like Respondents, the power to order an individual’s removal from a particular contract or project, without more, is not tantamount to control over the terms and conditions of the individual’s employment.” Id. (citations omitted). Here, Complainant did not argue that his removal from the VA projects resulted in his termination by the subcontractors or otherwise impacted his employment with those companies. Nor was their argument or evidence that Complainant could not be reassigned to other work, or that Respondents intended to influence the subcontractors to take unfavorable employment action against Complainant.
SUMMARY DECISION; COMPLAINANT ALLEGING THAT ALJ IMPROPERLY DENIED DISCOVERY BEFORE ENTERING SUMMARY DECISION MUST IDENTIFY WHY SUCH DISCOVERY WAS NECESSARY; ALJ IS NOT OBLIGATED UNDER ZAVALETA TO NOTIFY COMPLAINANT OF RIGHT TO IDENTIFY NECESSARY DISCOVERY WHERE COMPLAINANT WAS REPRESENTED — ZAVALETA APPLIES ONLY TO CASES INVOLVING SELF-REPRESENTED LITIGANTS
In Green v. Opcon, Inc., ARB No. 2018-0007, ALJ No. 2017-TSC-00002 (ARB Apr. 9, 2020) (per curiam), Complainant was a project manager for two subcontractors working on a VA renovations project. He alleged that the Respondent contractors ordered the subcontractors to work with and dispose of asbestos-containing materials without following applicable regulations, and that when he objected to and opposed those orders, Respondents retaliated by ordering the subcontractors to remove Complainant from the VA projects. OSHA dismissed the complaint on the ground that Complainant and not a covered employee under the environmental whistleblower statutes. The ALJ issued an order to show cause on the question, and ultimately dismissed the complaint on summary decision on the ground that Complainant was not a covered employee under the employee protection provisions of the Clean Air Act, the Solid Waste Disposal Act and the Toxic Substances Control Act. The ARB agreed that Respondents were entitled to summary decision as a matter of law, and affirmed the dismissal.
On appeal, Complainant argued that the ALJ erred by entering summary decision without first allowing time for discovery. The ARB noted that under 29 C.F.R. § 18.72(d), Complainant had the opportunity to submit an affidavit or declaration identifying his need to conduct discovery to present facts essential to his claim, but he did not do so. The ARB noted that it generally does not consider arguments raised for the first time on appeal, but that even if it considered the argument, it lacked merit. The ARB noted that an ALJ has the discretion to limit the scope of discovery, and that to establish an abuse of that discretion an “appellant must, at a minimum, articulate what materials he hoped to obtain during discovery and how he expects those materials would have helped him avoid dismissal of his case.” Slip op. at 7 (citations omitted). Here, Complainant only made a general proffer that he needed to complete discovery without stating why or identifying what discovery was necessary.
Complainant cited Zavaleta v. Alaska Airlines, Inc., ARB No. 2015-0080, ALJ No. 2015-AIR-00016 (ARB May 8, 2017) for the proposition that the ALJ was obligated to make sure Complainant was aware of his right to discovery before entering summary decision. The ARB, however, stated that this requirement from Zavaleta arose in the context of a pro se litigant and that it did not apply for represented litigants, like Complainant in the instant case.