Watts v. Perdue Farms, Inc., ARB No. 2017-0017, ALJ No. 2016-FDA-00003 (ARB May 28, 2020) (Decision and Order Granting Reconsideration and Remanding to the Administrative Law Judge)
COVERAGE UNDER SECTION 402 OF THE FOOD SAFETY AND MODERNIZATION ACT; WHERE PERDUE SUPPLIED POULTRY ANIMAL FEED FOR POULTRY RAISED ON BEHALF OF PERDUE ON COMPLAINANT’S FARM, THE ARB FOUND THAT PERDUE WAS A COVERED ENTITY
In Watts v. Perdue Farms, Inc., ARB No. 2017-0017, ALJ No. 2016-FDA-00003 (ARB May 28, 2020), the ARB had, in a March 2019 decision, affirmed the ALJ’s dismissal of Complainant’s employee protection complaint under Section 402 of the Food Safety and Modernization Act of 2011 (FSMA) on the ground that “Perdue’s chicken business was exempt from the [Federal Food, Drug, and Cosmetic Act (FFDCA)] via the Poultry Products Inspection Act (PPIA), 21 U.S.C. § 451, and thus exempt from the FSMA amendments adding the whistleblower protection provision to the FFDCA.” Slip op. at 3. On appeal to the Fourth Circuit, DOL moved for a remand for the ARB to reconsider in light of briefing from the FDA. On remand, the ARB vacated its March 5, 2019 order affirming the ALJ’s decision, and remanded the case to the ALJ for further proceedings.
The ARB reviewed the various statutes involved, and concluded that “[i]f the PPIA covers the employer’s poultry activity at issue, then the activity is exempt from the FFDCA.” Id. at 5. The ARB then cited the FDA’s brief:
FDA argues that the PPIA does not kick in to exempt poultry from the FFDCA until the poultry arrives at an official establishment, meaning a slaughterhouse or processing facility. Because the PPIA does not apply to on-farm poultry, FDA argues that poultry is still “food” and covered by the FFDCA. FDA identifies, for example, its regulation of edible tissues of food-producing animals that contain unsafe levels of animal drugs, causing the food to be adulterated. FDA also notes that Perdue supplies the feed, fuel, medications, vaccinations, and other supplies for the chicks on Watts’s farm. FDA claims that there is no question that animal feed is covered as food under the FDCA. FDA Br. at 23, citing § 321(f).
Id. (emphasis as in original) (footnote omitted). The ARB then stated that after further briefing, it would grant the request to reconsider. The ARB stated:
The question before the Board is whether Perdue is an “entity engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food.” 21 U.S.C. § 321(f). FDA argues and Perdue does not dispute that Perdue supplied the poultry animal feed for poultry on Watts’s farm. Accordingly, Perdue is an entity who manufactures, process, transports, or distributes “food” within the meaning of the Act and thus is a covered entity.
Id. at 6 (footnote omitted).
Crean v. 125 W. 76th Realty Corp., ARB No. 2017-0048, ALJ No. 2015-CAA-00002 (ARB May 27, 2020) (per curiam) (Decision and Order)
The ARB affirmed the ALJ’s dismissal of Complainant’s CAA complaint. The ARB determined that substantial evidence supported the ALJ’s findings of fact that (1) Complainant failed to prove that his protected activity was a motivating factor in termination of Complainant’s employment, and (2) Respondent would have terminated Complainant in the absence of protected activity.
Jinna v. MPRSoft, Inc., ARB No. 2019-0070, ALJ No. 2018-LCA-00039 (ARB May 26, 2020) (per curiam) (Order Denying Reconsideration)
MOTION FOR RECONSIDERATION OF BACK WAGE CALCULATION; ARB DENIES COMPLAINANT’S REQUEST FOR RECONSIDERATION BASED ON CONTENTIONS THAT HE DID NOT KNOW LEGAL FORMALITIES, WAS TOLD BY ARB STAFF THAT HE WOULD HAVE A CHANCE TO PRESENT ISSUES FOR REVIEW, AND RECONSIDERATION WAS A REQUEST TO INCREASE SCOPE OF BOARD’S REVIEW AND NOT AN ATTEMPT TO DIMINISH RESPONDENT’S RIGHTS; ARB LIMITS RECONSIDERATION TO FOUR CIRCUMSTANCES NOT PRESENT IN COMPLAINANT’S PETITION
In Jinna v. MPRSoft, Inc., ARB No. 2019-0070, ALJ No. 2018-LCA-00039 (ARB May 26, 2020) (per curiam), the ALJ had affirmed the Administrator’s determination not to impose CMPs for a LCA violation by Respondent, but modified the back pay award. On appeal, the ARB further modified the back pay award. Complainant petitioned for reconsideration of the ARB’s decision. Complainant argued that the ARB should reconsider because “(1) he did not neglect to file a cross appeal because he did not know legal formalities or that it was required; (2) he called the ARB and was informed that he would get a chance to present issues to be reviewed; and (3) his arguments were not an effort to diminish the appealing party’s rights, but instead, to increase the scope of review by the Board.” Slip op. at 2 (citing to Complainant’s petition). The ARB denied the petition because it did not fall within the four limited circumstances in which the ARB will reconsider: “(1) material differences in fact or law from those presented to a court of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the court’s decision, (iii) a change in the law after the court’s decision, or (iv) failure to consider material facts presented to the court before its decision.” Id.
Administrator, Wage and Hour Div., USDOL v. Lancaster Farms, Inc., ARB No. 2020-0024, ALJ No. 2018-TAE-00009 (ARB May 22, 2020) (Order of Dismissal)
The ARB dismissed the Administrator’s appeal after the Administrator stated that a determination had been made not to pursue the petition for review.
Aityahia v. Air Line Pilots Association, ARB No. 2019-0037, ALJ No. 2018-AIR-00042 (ARB May 19, 2020) (per curiam) (Decision and Order)
The ARB adopted the ALJ’s Order Granting Motion for Summary Decision dismissing Complainant’s complaint against the Air Line Pilots Association. The ALJ had ruled: (1) that he had no jurisdiction over Complainant’s OSH Act section 11(c) claim; (2) the count of Complainant’s 2017 AIR21 complaint alleging inadequate representation by Respondent at an arbitration proceeding in 2013 was not timely filed; (3) the count of the AIR21 complaint alleging that Respondent was complicit with Mesa Airlines in finding Complainant illegible for rehire failed because it alleged no actual adverse action by Respondent.
Sachdev v. Wells Fargo Bank, ARB No. 2019-0069, ALJ No. 2019-CFP-00002 (ARB May 19, 2020) (per curiam) (Decision and Order)
TIMELINESS OF CFPA AND SOX COMPLAINTS; FILING DATE IS DETERMINED BY DATE OF FINAL, DEFINITIVE, AND UNEQUIVOCAL NOTICE OF THE ADVERSE ACTION, NOT THE DATE THAT THE TERMINATION OR ADVERSE ACT IS FELT OR TAKES EFFECT; COMPLAINANT’S ADMISSION THAT SHE KNEW OF ALLEGED WRONGDOING AS OF DATE OF CONGRESSIONAL HEARING
TIMELINESS OF CFPA AND SOX COMPLAINTS; SERIOUSNESS OF COMPLAINT IS NOT GROUNDS FOR EQUITABLE TOLLING
TIMELINESS OF CFPA AND SOX COMPLAINTS; EQUITABLE TOLLING BASED ON MISTAKENLY FILING IN WRONG FORUM; COMPLAINANT’S ACTION IN INTENTIONALLY JOINING CLASS ACTION AGAINST RESPONDENT MERELY CONFIRMS THAT FILING WAS NOT “MISTAKEN”
In Sachdev v. Wells Fargo Bank, ARB No. 2019-0069, ALJ No. 2019-CFP-00002 (ARB May 19, 2020) (per curiam). Complainant alleged in a December 2018 complaint that she was retaliated against in violation of the Consumer Financial Protection Act of 2010 and the Sarbanes-Oxley Act for raising concerns to management about opening bank accounts that customers did not want. Both statutes have a 180 day limitations period. Although the date of Complainant’s termination was unclear, even under the most recent date proffered by Complainant the complaints were not filed timely.
In addition, the ARB noted that in whistleblower cases, the relevant date for filing periods “is the date the employee has final, definitive, and unequivocal notice of the adverse action, not the date that the termination or adverse act is felt or takes effect.” Slip op. at 3 (citations omitted). Here, Complainant admitted that knew she had suffered the alleged legal wrong as of September 21, 2016 when Congressional hearings broadcast on CSPAN revealed to her how Respondent’s conduct had ruined her because she had stood up to wrongdoing to protect consumers. The complaints, however, were not filed until 804 days later.
On appeal, Complainant appeared to allege that she did not know of the circumstances giving rise to her claim until November 2, 2018, when she received a settlement offer from Respondent. The ARB was not persuaded by this contention as Complainant admitted knowledge of Respondent’s alleged wrongdoing as of September 21, 2016, and she knew that Respondent had fired her.
Complainant also alleged that equitable tolling should apply because she had joined a class action lawsuit against Respondent in December 2016. The ARB again noted that Complainant admitted knowledge of Respondent’s alleged misconduct as of September 21, 2016, and concluded that the equitable tolling argument appeared to be a contention that “the limitations period should be forgiven because of the importance of the underlying criminal activity Wells Fargo engaged in, and its actions in covering up its criminal activity.” Id. at 5. The ARB, however, agreed with the ALJ’s citation of Ubinger v. CAE Int’l, ARB No. 2007-0083, ALJ No. 2007-SOX-00036, slip op. at 6 (ARB Aug. 27, 2008), for the proposition that “the seriousness of the complaint has not been found to be grounds for equitable tolling. By Complainant’s own admission, again, she filed 804 days after she received this notice, and that the notice provides no basis for tolling regardless of the seriousness of Wells Fargo’s acts.” Id.
The ARB was not persuaded by an argument made for the first time by Complainant on appeal that she had filed the precise statutory claim mistakenly in the wrong forum. The ARB determined that “[h]er intentional action in joining the class action removes any possibility that Complainant ‘mistakenly’ filed in the wrong forum.” Id.
Riddell v. CSX Transportation, Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054 (ARB May 19, 2020) (per curiam) (Decision and Order)
ADVERSE ACTION; REMOVAL FROM SERVICE IN HUMILATING FASHION; SUSPENSION AND INVESTIGATION OF CHARGE OF SERIOUS MISCONDUCT DURING WHICH COMPLAINANT WAS NOT PAID AND DID NOT HAVE INSURANCE BENEFITS; THREAT OF DISCIPLINE
In Riddell v. CSX Transportation, Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054 (ARB May 19, 2020) (per curiam), the ARB agreed “with the ALJ that the actions Respondent took against Complainant were unfavorable personnel actions under FRSA. Complainant was removed from service in a humiliating way in front of all of his peers after he had just returned to work from the weekend only to be accosted by a police officer, stripped of his work effects, and sent on his way. He was suspended, charged with serious misconduct, and subject to an investigation during which time he was not paid and did not have insurance benefits. He was threatened with discipline up to and including termination.” Slip op. at 12.
CREDIBILITY DETERMINATIONS; ALJ MAY TAKE INTO CONSIDERATION WRITTEN STATEMENTS
WITNESSES; IT IS NOT NECESSARY FOR ALJ TO HEAR LIVE TESTIMONY FROM EVERY PERSON IN CASE
In Riddell v. CSX Transportation, Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054 (ARB May 19, 2020) (per curiam), the ALJ’s contributing factor causation analysis was based in part on his credibility determinations. The ARB found in the instant case the ALJ’s credibility findings were well-reasoned, thoroughly explained, and supported by substantial evidence. On appeal, one of Respondent’s challenges was the fact that some of the ALJ’s credibility determinations were based on written statements. The ARB was not persuaded by this challenge, noting that many witnesses had testified at the hearing. The ARB further stated: “Further, it is the ALJ’s task to review the totality of the record and it is not necessary that the ALJ hear live testimony from every person in a case. Written statements increase the ALJ’s access for probative evidence, not limit it.” Slip op. at 13, n.3.
CONTRIBUTING FACTOR CAUSATION; ALJ DID NOT ERR BY CONSIDERING TRUTH OF COMPLAINANT’S ALLEGATIONS AGAINST COWORKERS AND WHETHER CHARGES BROUGTH AGAINST HIM WERE TRUE IN DETERMINING WITNESS CREDIBLITY
In Riddell v. CSX Transportation, Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054 (ARB May 19, 2020) (per curiam), Complainant alleged that Respondent “retaliated against him in violation of FRSA’s whistleblower protection provisions for reporting that he saw his co-workers engaging in illegal drug (marijuana) use while operating heavy machines on the rails.” Slip op. at 2. Respondent had removed Complainant from service to investigate charges that he had made a threat against a supervisor. Respondent objected on appeal to the ALJ’s finding of causation because the ALJ had considered whether Complainant actually made threats against a supervisor and whether the drug allegations Complainant made against co-workers were true. Respondent argued that “these are irrelevant considerations because the question is not whether these were true but what the employer believed that is at issue.” Id. at 16. The ARB agreed that “what matters to the causation analysis is what the employer believed rather than the truth of the underlying facts.” Id. However, in the instant case, the ALJ had “thoroughly explained that he was analyzing the underlying facts as a part of his credibility determinations.” Id. The ARB stated that “[t]his fits squarely within the ALJ’s responsibilities as the fact finder.” Id.
PUNITIVE DAMAGES; $150,000 AWARD FOR INTENTIONAL RETALIATION AFFIRMED WHERE, EVEN THOUGH COMPLAINANT WAS NOT FIRED, THERE HAD BEEN SIGNIFICANT HARM TO COMPLAINANT
In Riddell v. CSX Transportation, Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054 (ARB May 19, 2020) (per curiam), the ARB affirmed the ALJ’s $150,000 punitive damages award for intentional retaliation, despite the fact that Complainant was not fired. The ARB noted that the ALJ found that the harm to Complainant was nonetheless significant -- “(charges, targeted retaliation, drug testing, psychological testing, removal from service, disciplinary hearing, and the threat of termination)” -- and “resulted in strain, embarrassment, humiliation, and situations of emotional distress.” Slip op. at 27.
U.S. CONSTITUTION; ARB DECLINES TO EXERCISE DISCRETION TO CONSIDER NON-JURISDICTIONAL CONSTITIONAL CLAIM WHERE RESPONDENT’S APPOINTMENTS CLAUSE CHALLENGE WAS NOT RAISED BEFORE ALJ; WAIVER OF CHALLENGE IF NOT TIMELY RAISED
In Riddell v. CSX Transportation, Inc., ARB No. 2019-0016, ALJ No. 2014-FRS-00054 (ARB May 19, 2020) (per curiam), the Administrative Review Board found that Respondent waived its Appointments Clause challenge because it failed to raise it before the ALJ:
Respondent alternatively argues that it is entitled to a new hearing before a different ALJ under Lucia v. S.E.C., 138 S.Ct. 2044 (2018), because the ALJ was not properly appointed under the Appointments Clause of the U.S. Constitution. Art. II, § 2, cl. 2. Respondent asserts that it did not waive the challenge and that its challenge was timely under Lucia as promptly filed once the Supreme Court’s decision issued. Resp. Reply at 10. In the event it loses on the merits, Respondent requests the matter be vacated and remanded for new proceedings before a different ALJ.
Riddell and the Solicitor of Labor, as amicus, argue Respondent waived its right to make an Appointments challenge. Ordinary principles of forfeiture and waiver apply to Appointments challenges. Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018).
While the ARB has the discretion to consider non-jurisdictional constitutional claims such as Respondent’s Appointments Clause challenge, such discretion is exercised in only rare or exceptional circumstances which we do not see here. Respondent raised the Appointments Clause challenge for the first time on appeal in two-sentences at the end of its petition for review. Respondent did not raise the challenge at any point during the proceedings with the ALJ although it had notice of the issue and the opportunity to do so. The ARB typically does not entertain arguments that are first raised on appeal and we shall not do so now. E.g., Gattegno v. Prospect Energy Corp., et al., ARB No. 2006-0118, ALJ No. 2006-SOX-00008, slip op. at 22 (ARB May 29, 2008). Thus, we hold that Respondent has waived any Appointments challenge., 
 Which provides that only the President, “Courts of Law,” or “Heads of Departments” can appoint “Officers.”
 In 2016, the courts of Appeals issued conflicting decisions on Appointments Clause challenges to ALJs and in February 2017, the D.C. Circuit granted rehearing en banc of its 2016 Lucia decision. See Solicitor’s Brief at 9. If the burgeoning conflict in the courts of Appeals did not, the Secretary’s ratification of the ALJ’s appointments in December 2017 put Respondent on notice of an Appointments issue. Finally, when Lucia was decided by the Supreme Court on June 21, 2018, CSX should have promptly made its constitutional challenge. The ALJ did not decide this matter until almost six months later on December 12, 2018, giving Respondent a considerable amount of time to raise a challenge. Its failure to do so in a timely fashion is fatal to its argument.
 Further bolstering our decision is the fact that Respondent only asks that the Board hold that the ALJ in this matter was not properly appointed if it loses on the merits—thus, the implication that if it were to win on the merits, it would consider the ALJ’s appointment a non-issue.
 We note that our sister Board has issued cases consistent with our decision that Respondent’s Appointments challenge has been waived in Kiyuna v. Matson Terminals, Inc., BRB No. 19-0103, 2019 WL 2865994 (BRB June 25, 2019) and Daugherty v. Consolidated Coal Co., BRB No. 18-0341, 2019 WL 3775979 (BRB July 19, 2019).
Slip op. at 28-29.
Administrator, Wage and Hour Div. v. Integrated Geophysics, Corp., ARB No. 2019-0001, ALJ No. 2017-LCA-00018 (ARB May 13, 2020) (per curiam) (Decision and Order)
FAILURE TO PAY H-1B WORKER REQUIRED WAGE; FRAUD, EQUITY AND H-1B WORKER’S “UNCLEAN HANDS” ARE NOT RECOGNIZED EXCEPTIONS TO WAGE PAYMENT REQUIREMENT; WHEN RESPONDENT’S BUSINESS BEGAN TO FAIL, IN ORDER TO AVOID THE OBLIGATION TO PAY LCA WAGES, ITS OPTION WAS TO DISCHARGE THE H-1B WORKER, NOTIFY DHS, AND POSSIBLY PAY FOR TRANSPORTATION HOME
In Administrator, Wage and Hour Div. v. Integrated Geophysics, Corp., ARB No. 2019-0001, ALJ No. 2017-LCA-00018 (ARB May 13, 2020) (per curiam), the ALJ found that Respondent failed to pay the H-1B worker the required wage under the terms of its labor condition attestations. On appeal, Respondent did not argue that it paid the required wages, or that either of the two exceptions to its preexisting regulatory requirement to pay wages applied. Rather, Respondent reasserted arguments it made to the ALJ about fraud, equity, and the H-1B worker’s unclean hands. Respondent also argued that awarding the H-1B worker damages treated the nonimmigrant worker more favorably than Respondent’s U.S. workers, contrary to the intent of the act.
The ARB, however, cited the ALJ’s explanation that none of these arguments speak to the law’s two available exceptions. The two exceptions are a bona fide termination, or when conditions unrelated to employment take the nonimmigrant away from his/her duties at his/her voluntary request and convenience or render the nonimmigrant unable to work.
The ARB cited the ALJ’s statement that “when Respondent’s business began to fail, in order to avoid its obligation to pay LCA wages, it was required to discharge [the H-1B worker], notify the Department of Homeland Security, and possibly provide her payment for transportation home. 20 C.F.R. §655.731(c)(7)(ii).” Slip op. at 3 (footnotes omitted).
Jeanty v. Lily Transportation Corp., ARB No. 2019-0005, ALJ No. 2018-STA-00013 (ARB May 13, 2020) (per curiam) (Decision and Order)
[STAA Digest V A 3]
PROTECTED ACTIVITY; REFUSAL TO DRIVE BASED ON VIOLATION OF REGULATION, STANDARD OR ORDER; ARB DECLINES TO FOLLOW, OUTSIDE THOSE CIRCUITS, RULINGS OF SOME COURTS OF APPEALS THAT PROOF OF AN ACTUAL VIOLATION IS REQUIRED UNDER A SECTION 31105(a)(1)(B)(i) REFUSAL TO DRIVE CLAIM
The STAA’s “refusal to drive” clause protects a refusal to operate a commercial vehicle because the operation would violate a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security. 49 U.S.C. § 31105(a)(1)(B)(i). In Jeanty v. Lily Transportation Corp., ARB No. 2019-0005, ALJ No. 2018-STA-00013 (ARB May 13, 2020) (per curiam), the ARB noted that “[s]ome Courts of Appeals have held that a refusal to drive claim under Section 31105(a)(1)(B)(i) requires the complainant to establish an actual violation of applicable rules or regulations for his conduct to be protected. Koch Foods, Inc. v. Sec’y of Labor, 712 F.3d 476, 486 (11th Cir. 2013); Calhoun v. U.S. Dep’t of Labor, 576 F.3d 201, 209 (4th Cir. 2011).” The ARB, however, followed its own precedent in the instant case which fell within the ambit of a different circuit. The ARB precedent is that “proof of an actual violation is not necessary, and a complainant’s actions may be protected as long as he had a subjectively and objectively reasonable belief regarding the existence of an actual or potential violation. Gilbert, ARB No. 11-0019, slip op. at 7; Mauldin, ARB No. 16-0059, slip op. at 4 n.12.”
[STAA Digest V B 2 a iii]
PROTECTED ACTIVITY; REFUSAL TO DRIVE BASED ON ILLNESS AND/OR FATIGUE; MERE STATEMENT THAT DRIVER FELT ILL AND/OR FATIGUED FOUND TO BE TOO VAGUE TO ESTABLISH PROTECTED ACTIVITY; STATEMENT MUST BE LINKED TO SAFETY TO DRIVE; FACT THAT COMPLAINANT ACTUALLY DROVE UNDERCUTS REFUSAL TO DRIVE CLAIM
In Jeanty v. Lily Transportation Corp., ARB No. 2019-0005, ALJ No. 2018-STA-00013 (ARB May 13, 2020) (per curiam), the ARB agreed with the ALJ’s conclusion that Complainant’s statement that he was “ill and/or fatigued” to make a second run was too vague to be protected activity under the STAA’s refusal to drive clause. Citing the FMCSA regulation at 49 C.F.R. § 392.3, the ARB stated that Complainant “had to prove by a preponderance of the evidence that he refused to drive because he reasonably believed that his ability or alertness was so impaired, or was likely to become so impaired, that it would have been unsafe to make the second run.” In the instant case, there was no evidence that Complainant told Respondent’s operations manager that he thought he could not drive, or that his alleged illness or fatigue could impact his ability to drive his vehicle safely. Complainant apparently did not elaborate on or give context for his condition or explain the source or extent of his illness and/or fatigue. And, there was no evidence that Complainant raised illness or fatigue later in the day, even when engaged in dispute with the operations manager over a subsequent refusal to drive based on the hours-of-service rules. The ARB observed that Complainant admitted that he ultimately agreed to make the second run, despite being ill or fatigued. The ARB stated that it agreed with the ALJ that Complainant “cannot engage in protected activity under the STAA’s ‘refusal to drive’ clause when he did not, in fact, actually refuse to drive. See Calhoun v. Dep’t of Labor, 576 F.3d 201, 209 (4th Cir. 2009); Williams v. CMS Transp. Servs., Inc., No. 1994-STA-00005, slip op. at 3 (Sec’y Oct. 25, 1995).” Slip op. at 7.
[STAA Digest V B 2 d]
PROTECTED ACTIVITY; REFUSAL DRIVE BASED ON HOURS OF SERVICE REGULATION; SUBJECTIVE REASONABLENESS REQUIRES GOOD FAITH – EVIDENCE OF PURPOSEFUL DELAY TO AVOID SECOND RUN; OBJECTIVE REASONABLENESS – AVAILABILITY OF RELIEF DRIVER
In Jeanty v. Lily Transportation Corp., ARB No. 2019-0005, ALJ No. 2018-STA-00013 (ARB May 13, 2020) (per curiam), Complainant had refused to make a second run on the ground that he could not have finished his drive within the five hours and twenty-four minutes remaining under the FMCSA hours-of service 14-hour driving limit. The ARB agreed with the ALJ’s determination that Complainant’s professed belief that his second run would have violated the hours-of-service rules was not subjectively or objectively reasonable, and therefore did not constitute protected activity under the STAA. The decision in this case was fact specific and turned in part on the ALJ’s credibility determinations.
In brief, the ALJ determined that Complainant’s professed belief did not meet the subjective belief element because he did not hold that belief in good faith. The ARB found that substantial evidence supported the ALJ’s conclusion that Complainant “purposefully delayed his departure because he did not want to make a second delivery that day, and the hours-of-service rules were just a fabricated excuse to achieve his desired result.”
The ALJ also determined that Complainant’s professed belief did not meet the objective belief element based on the facts of the case indicating that he could have completed the run without violation of the hours-of-service rule -- and that, even if he hit the hours limit, company policy was to dispatch relief drivers to complete the run upon request. Although Complainant suggested that the relief driver policy was not actual practice and that Respondent expected him to complete runs without asking for a relief driver, the ARB pointed to the fact that Complainant had never requested a relief driver and the absence of evidence that Respondent would not have supplied one. The ARB stated: “The fact that Lily may not have enforced this relief policy by disciplining drivers who violated it does not mean the policy was not actually available to allow drivers to avoid a violation.” The ARB was not persuaded by Complainant’s arguments that there were no relief drivers available on the day and time in question, and that Respondent’s operations manager should have explicitly told him at the time that a relief drive would be available.
[STAA Digest II K]
SUBPOENAS; ALJ DID NOT ABUSE DISCRETION BY DENYING PRO SE COMPLAINANT’S SUBPOENA REQUEST MADE ON EVE OF HEARING
In Jeanty v. Lily Transportation Corp., ARB No. 2019-0005, ALJ No. 2018-STA-00013 (ARB May 13, 2020) (per curiam), Complainant requested on appeal the opportunity to reopen the record to submit a subpoena to one of Respondent’s customers, apparently in the hope that he could collect information about hours-of-service violations. Complainant had orally requested such a subpoena from the ALJ five days before the scheduled hearing, which was well after the discovery period had closed. The ALJ did not issue the subpoena based on the belatedness of the request. On appeal, Complainant did not argue that the ALJ’s rejection of the request for a subpoena was arbitrary or capricious; nor did he explain why he waited to the eve of the hearing to make the request outside the rules of procedure. The ARB noted that Complainant was self-represented and afforded some latitude, but found that absent any explanation for his belated request for a subpoena, the ALJ had not abused her discretion in rejecting the request.
McIntyre v. Pope Funeral Home, ARB No. 2019-0057, ALJ No. 2018-CFP-00005 (ARB May 13, 2020) (per curiam) (Decision and Order)
COVERED RESPONDENT UNDER CONSUMER FINANCIAL PROTECTION ACT; ARB SUMMARILY AFFIRMS ALJ’S FINDING THAT FUNERAL HOME WAS NOT ESTABLISHED TO BE COVERED PERSON OR SERVICE PROVIDER DESPITE COMPLAINANT’S ARGUMENT THAT RESPONDENT PROVIDED FINANCIAL SERVICES
In McIntyre v. Pope Funeral Home, ARB No. 2019-0057, ALJ No. 2018-CFP-00005 (ARB May 13, 2020) (per curiam), Complainant alleged that her employer, Pope Funeral Homes, fired her in violation of the employee protection provisions of the Consumer Financial Protection Act (CFPA). The ALJ granted summary decision based on a finding that Respondent was not a “covered person or service provider” under the CFPA. The ARB affirmed the ALJ’s decision to grant summary decision.
The CFPA prohibits a “covered person” or “service provider” from terminating or in any other way discriminating against any covered employee because such employee engages in any of the protected activities identified under 12 U.S.C. § 5567(a)(1)-(4). Specifically, a “covered person or service provider” under the CFPA engages “in offering or providing a consumer financial product or service.”
On appeal, Complainant argued that Respondent had affiliates; extended credit; extended and serviced loans; and provided custodial bank deposits. The ARB, however, found that the ALJ had addressed all these arguments and that his analysis had been sound. The ARB adopted the ALJ’s decision.
The ARB noted Complainant’s argument that the ALJ failed to address her argument that Respondent provides financial services pursuant to 12 U.S.C § 5481(15)(A)(i). The ARB, however, stated: “Title 12 is titled ‘Banks and Banking’ and references a number of financial institutions including banks, mortgage companies, credit unions and the like. Notably, Funeral Homes are not listed or referenced.”
Simpson v. Equity Transportation Co., Inc. ARB No. 2019-0010, ALJ No. 2017-STA-00076 (ARB May 13, 2020) (Decision and Order)
[STAA Digest V B 2 b]
[STAA Digest V B 2 c]
PROTECTED ACTIVITY; REFUSAL TO DRIVE FOUND TO BE PROTECTED UNDER BOTH THE VIOLATION-OF-A-SAFETY-REGULATION AND REASONABLE-APPREHENSION PROVISIONS OF STAA, 49 U.S.C. § 31105(a)(1)(B)(i) and (a)(1)(B)(ii), WHERE INDICATOR LIGHT FOR ANTI-LOCK BRAKE SYSTEM CAME ON, AND THE RECORD SUPPORTED A FINDING THAT THE PROBLEM WAS NOT SIMPLY A FAULTY ILLUMINATOR
In Simpson v. Equity Transportation Co., Inc., ARB No. 2019-0010, ALJ No. 2017-STA-00076 (ARB May 13, 2020), Complainant was on a route when the indicator light for the vehicle’s antilock braking system (ABS) came on. After a Petro Service Station fixed a leaking brake chamber, the ABS light came on again. Two days later, Petro determined that the problem was beyond its capacity to repair. Complainant asserted to supervisors that it would be unsafe to drive; at least two supervisors directed him to recommence driving. Complainant did not do so, and Respondent paid to tow the vehicle to a Freightliner facility where the repairs were completed. Later, Complainant was charged with, and fined for, several infractions – including the refusal to drive – and sent home. Complainant then filed a STAA retaliation complaint.
On appeal, the ARB found that the record supported the ALJ’s finding of protected activity under 49 U.S.C. § 31105(a)(1)(B)(i) and (a)(1)(B)(ii). The ALJ found unsupported by the record Respondent’s argument that the problem with the ABS system was simply a faulty illuminator light. The ARB affirmed the ALJ’s conclusion that driving the truck would have violated a regulation related to commercial motor safety – specifically 49 C.F.R. § 393.48(a). The ARB noted that Complainant had testified that Petro mechanics told him that there was a problem with the ABS system and they were unable to repair it. The ARB also noted that additional repairs had been made to the ABS system at the Freightliner shop. The ARB also affirmed the ALJ’s conclusion that a reasonable person in the Complainant’s circumstances would have had a reasonable apprehension of serious injury due to the defective anti-lock brakes.
[STAA Digest VI B 4]
ADVERSE ACTION; RESIGNATION VERSUS DISCHARGE; COMPLAINANT’S ACT OF INFORMING RESPONDENT THAT HE COULD NOT PAY A $1,000 FINE, EVEN IF IT MEANT BEING SENT HOME, FOUND NOT TO BE A RESIGNATION
In Simpson v. Equity Transportation Co., Inc., ARB No. 2019-0010, ALJ No. 2017-STA-00076 (ARB May 13, 2020), Complainant was on a route when the indicator light for its antilock braking system (ABS) came on. After a Petro Service Station fixed a leaking brake chamber, the ABS light came on again. Two days later, Petro determined that the problem was beyond its capacity to repair. Complainant asserted to supervisors that it would be unsafe to drive; at least two supervisors directed him to recommence driving. Complainant did not do so, and Respondent paid to tow the vehicle to a Freightliner facility where the repairs were completed. During a later dispatch, Complainant backed his trailer into a car carrier and damaged a car. The next day, Complainant met with Respondent’s transportation manager. Complainant recorded the conversation. The manager accused Complainant of several infractions, including the refusal to drive, imposed a three-day suspension, and told Complainant he had to pay Respondent $1,000 for down time and costs. Complainant informed the manager that he could not pay the $1,000. Respondent paid for a bus ticket for Complainant to return home, and generated a notice for Complainant that stated “Terminated/James decided to quit.” Complainant then filed a STAA complaint. After a hearing, the ALJ found in favor of Complainant.
On appeal, the ARB affirmed the ALJ’s conclusion that Complainant did not quit but had been discharged. The ALJ had concluded that Complainant’s statement that he could not pay the $1,000, even if that meant he would be sent home, was not an unequivocal resignation, especially in light of notice of a three-day suspension. The ALJ found that it was the supervisor’s behavior rather than Complainant’s that ended the employment relationship.
The ARB cited its precedent that “[a]n employer who decides to interpret an employee’s ambiguous actions as a resignation, without having first sought clarification from the employee, has in fact decided to discharge that employee, and therefore has subjected the employee to an adverse employment action” Slip op. at 7 (citations omitted). The ARB stated that none of Complainant’s actions indicated an intent to quit his employment.
[STAA Digest IV H]
SAME ACTION DEFENSE; ARB INDICATES THAT “CUMULATIVE-EVENTS” IS A COGNIZABLE THEORY, BUT FINDS THAT RESPONDENT FAILED TO MEET ITS AFFIRMATIVE DEFENSE BURDEN WHERE THE REASONS GIVEN FOR DISCIPLINE OF COMPLAINT DID NOT ISOLATE OR NEUTRALIZE THE FACT THAT RESPONDENT’S MANAGER REFERENCED COMPLAINANT’S PROTECTED ACTIVITY IN TERMINATION MEETING
In Simpson v. Equity Transportation Co., Inc., ARB No. 2019-0010, ALJ No. 2017-STA-00076 (ARB May 13, 2020), the ALJ found that statements by Respondent’s transportation manager indicated that Complainant’s STAA protected refusal to drive was one of the reasons he subjected Complainant to discipline. The ARB thus affirmed the ALJ’s finding that the refusal to drive was a contributing factor to the discharge. For its affirmative defense, Respondent contended that there were four legitimate reasons to discharge Complainant. The ARB recited the ALJ’s findings regarding those reasons in support of a determination that the additional reasons did not establish that Respondent would have discharged Complainant in the absence of the STAA-protected activity.
On appeal, Respondent argued that it fired Complainant for all five reasons, citing the proverb “the straw that broke the camel’s back.” The ARB was not persuaded by this argument:
While we agree with Equity that an employer can base an adverse action on a cumulative-events theory and we do not sit as super-personnel department to review the merits of the employer’s decision, Equity has failed to convince us that the ALJ erred in finding that Equity did not meet its same-action defense burden in this case under these facts. Equity’s five enumerated reasons fail to isolate or neutralize the fact that Dean referenced Simpson’s refusal in the termination meeting, with the suggestion that Simpson should have unplugged the ABS light and driven the truck to Atlanta irrespective of the brake concerns.
Slip op. at 11 (footnote omitted).
[STAA Digest IX A]
REINSTATEMENT IS “IMPRACTICAL” WHERE COMPLAINANT AFFIRMATIVELY SAID THAT HE WAS NOT SEEKING REINSTATEMENT AND HAD OBTAINED A BETTER PAYING JOB; MAJORITY REASSESSES PRIOR ARB PRECEDENT ON THE SUBJECT
In Simpson v. Equity Transportation Co., Inc., ARB No. 2019-0010, ALJ No. 2017-STA-00076 (ARB May 13, 2020), a two-judge majority reviewed prior ARB precedent on reinstatement and found that decisions after Dutile v. Tighe Trucking Inc., 1993-STA-31 (Sec’y Oct. 31, 1994), had evolved beyond the facts of that case and resulted in a default order of an offer of reinstatement regardless of the employee’s preferences or circumstances. Reassessing that precedent, the majority ruled: “The ARB and courts have found that reinstatement is inappropriate in a number of circumstances, including impossibility and impracticability.” The ARB agreed with Respondent that “it is impractical for the ALJ to order that the employer offer reinstatement in this case . . . where the employee has affirmatively said that he is not interested in reinstatement and obtained a better-paying job.” One member of the ARB dissented, and recommended direct review by the Secretary on the issue.
[STAA Digest IX B 2 b iii]
BACK PAY; ACCRUAL ENDS ON DATE COMPLAINANT FOUND EMPLOYMENT EARNING MORE THAN HE HAD MADE WITH RESPONDENT; LIABILITY DID NOT RESUME AFTER COMPLAINANT LEFT HIS NEW JOB, DESPITE ABSENCE OF OFFER OF REINSTATEMENT FROM RESPONDENT
In Simpson v. Equity Transportation Co., Inc., ARB No. 2019-0010, ALJ No. 2017-STA-00076 (ARB May 13, 2020), the ALJ found that Respondent violated the STAA. The ALJ concluded that back pay to Complainant should accrue until Respondent offered reinstatement. The ARB, however, agreed with Respondent that the back pay obligation ended on the date Complainant found employment earning more money than he earned with Respondent, citing Gaffney v. Riverboat Servs., 451 F.3d 424, 463 (7th Cir. 2006). The ALJ also found that, because he had not been given an offer of reinstatement Complainant was entitled to resumption of back pay after he left his new job. Again, the ARB disagreed, stating that Respondent’s obligation to pay damages is limited to make-whole relief, citing McKnight v. General Motors Corp., 973 F.2d 1366, 1371-72 (7th Cir. 1992), for the proposition that: “Damages in employment discrimination cases are not intended to insure a plaintiff's future financial success. Damages should ordinarily extend only to the date upon which ‘the sting’ of any discriminatory conduct has ended.” The ARB also noted that Complainant had not argued for back pay for this period before the ALJ.
One member of the ARB dissented, stating that Gaffney was not persuasive authority -- the facts, the law involved, the forum, and the procedural history all being significantly different from the case before the ARB. The ARB majority and the dissenting member also disagreed about whether reinstatement was mandated in the case – the majority finding reinstatement to be impracticable where Complainant did not seek it and had obtained a better paying job. This disagreement is covered in a separate casenote.
[Editor’s note: Gaffney was a 46 U.S.C. § 2114 case, decided prior to amendments placing such cases under the jurisdiction of the Department of Labor, in which the court cited OSH Act § 11(c) and Title VII caselaw in regard to calculation of a backpay award.]
[STAA Digest IX D 4]
PUNITIVE DAMAGES; $15,000 AWARD AFFIRMED WHERE RESPONDENT DIRECTED COMPLAINANT TO DRIVE DESPITE AN UNRESOLVED ISSUE ABOUT THE VEHICLE ANTILOCK BRAKING SYSTEM
In Simpson v. Equity Transportation Co., Inc., ARB No. 2019-0010, ALJ No. 2017-STA-00076 (ARB May 13, 2020), Complainant was disciplined in part for a refusal to drive when the vehicle’s indicator light for its antilock braking system (ABS) came on, and a Petro Service Station was unable to resolve the defect. The ALJ found unsupported by the record Respondent’s argument that the problem with the ABS system was simply a faulty illuminator light. The ARB affirmed the ALJ’s award of punitive damages:
The record also supports the ALJ’s conclusion that Equity should pay $15,000 in punitive damages. Punitive damages are warranted where there has been “reckless or callous disregard for the plaintiff’s rights, as well as intentional violations of federal law.” Smith v. Wade, 461 U.S. 30, 51 (1983); see Youngerman v. United Parcel Serv., Inc., ARB No. 2011-0056, ALJ No. 2010-STA-00047, slip op. at 6 (ARB Feb. 27, 2013). In directing Simpson to drive when his brakes needed repair, Equity “showed a reckless disregard for the Complainant’s safety and the safety of other motorists.” D. & O. at 38. The ALJ’s decision to award punitive damages is warranted here and in accordance with law. More specifically, the facts supporting the decision to award such relief are supported by substantial evidence.
Slip op. at 15-16.
Carbon v. Shire Pharmaceuticals, ARB No. 2018-0064, ALJ No. 2018-SOX-00009 (ARB May 5, 2020) (per curiam) (Order Dismissing Complainant’s Petition as Untimely)
TIMELINESS OF PETITION FOR ARB REVIEW; REGULATION AT 29 C.F.R. § 18.32(c) DOES NOT ADD THREE DAYS TO THE FILING DEADLINE
TIMELINESS OF PETITION FOR ARB REVIEW; EQUITABLE TOLLING; ARB NOT PERSUADED TO TOLL FILING DEADLINE BASED BY COUNSEL’S DIFFICULTIES IN USING ARB’S ONLINE FILING SYSTEM WHERE IT WAS NOT CLEAR THAT THE SYSTEM WAS AT FAULT FOR HER DIFFICULTIES AND WHERE SHE HAD FAILED TO USE THE AVAILABLE ALTERNATIVE OF FILING BY FAX
In Carbon v. Shire Pharmaceuticals, ARB No. 2018-0064, ALJ No. 2018-SOX-00009 (ARB May 5, 2020) (per curiam), Complainant argued that, pursuant to 29 C.F.R. § 18.32(c), three days should be added to the 14 day appeal period. The ARB rejected that argument, noting that “29 C.F.R. § 1978.110(a) provides that to be effective the petition must be filed within ‘14 days of the date of the decision of the ALJ,’ not within 14 days of the date upon which the decision was served upon ‘said party.’ Butler v. Neier, Inc., ARB No. 2016-0086, ALJ Case No. 2014-STA-00068 (ARB Nov. 21, 2016).”
Complainant also argued that his attorney had been unable to file the appeal timely because of unforeseen technical difficulties with ARB’s online filing system. The ARB treated this argument as a request for equitable tolling of the filing deadline. Complainant’s appeal was due August 16, 2018. Complainant’s counsel argued that the online system was not working properly on the 16th, and that she had unsuccessfully attempted to file the appeal several times, starting at 11:30 am on the 16th. The email documentation presented, however, showed that she waited until 1:21 am on the 17th to contact the ARB helpdesk. The ARB (noting that later emails indicated that the problem was user error that caused the problem) was not persuaded. The ARB wrote:
It was incumbent upon counsel to familiarize herself with the various ways an appeal could be filed, including via fax, before the appeal time had expired. A party represented by counsel is not entitled to equitable tolling because counsel is “presumptively aware of whatever legal recourse may be available to [his or her] client.” An attorney practicing before the Board is expected to familiarize himself or herself with the applicable regulations. Stated another way, Counsel’s failure to familiarize herself with the online filing system, or in the alternative the ability to fax an appeal, does not constitute as an extraordinary factor necessary to apply equitable tolling measures.
Slip op. at 3-4 (footnotes omitted). The ARB thus denied the petition for review as untimely filed.
Heckman v. M3 Transport, LLC, ARB No. 2018-0019, 2012-STA-00059 (ARB May 5, 2020) (Decision and Order)
[STAA Digest XI B 2]
DISMISSAL BASED ON CONTINUING PATTERN OF VEXATIOUS LITIGATION DESPITE MULTIPLE WARNINGS FROM ALJ TO CEASE
[STAA Digest II H 4 c]
ARB’S APPELLATE AUTHORITY TO AFFIRM DISMISSAL BASED ON GROUND SUPPORTED BY THE RECORD, EVEN IF IT DIFFERS FROM ALJ’S RATIONALE
In Heckman v. M3 Transport, LLC, ARB No. 2018-0019, 2012-STA-00059 (ARB May 5, 2020), OSHA found that Respondents violated the STAA when Complainant was discharged. OSHA, however, declined to prosecute the case on Complainant’s behalf, and although Complainant unsuccessfully attempted to retain counsel, he represented himself before the ALJ. The ALJ first assigned to the case found that, over the course of three years, Complainant was litigating in a vexatious manner; the ALJ thus issued a protective order relieving Respondents of the burden of responding to Complainant’s unmeritorious motions unless ordered otherwise. Learning that Complainant had experienced a medical condition that made it unclear whether Complainant was capable of representing himself — and determining that conducting the hearing with Complainant as a self-represented litigant might impair Respondents’ ability to defend themselves -- the ALJ ordered that Complainant file a statement from a physician or psychologist explaining his ability to proceed without a lawyer. Complainant instead filed a letter from a physician’s assistant, and documentation from the SSA indicating that Complainant could no longer work as a truck driver or do any other substantial gainful activity, and was entitled to Social Security disability benefits. This ALJ subsequently retired and the case was assigned to a different ALJ.
Complainant continued to file numerous motions and accusations against Respondents and their representatives. The ALJ issued an order to show cause for Complainant to show that he was competent to represent himself. The order to show cause specified that if Complainant was not competent, he would need to proceed with a guardian ad litem. The ALJ found that Complainant’s response was inadequate, and issued a second order to show cause with instructions to nominate a guardian ad litem, or the ALJ would dismiss the complaint. Complainant responded but did not nominate a guardian. The ALJ then dismissed the complaint.
On appeal, the ARB found that, although the ALJ’s discussion of Complainant’s medical condition overshadowed the ALJ’s findings concerning vexatious litigation and noncompliance, ample evidence supported the findings of vexatious litigation. Noting that appellate courts routinely affirm on any ground supported by the record, even if it differs from the district court’s rationale, the ARB focused on Complainant’s outrageous and repetitive discovery requests despite multiple warnings to cease and to comply with directives. The ARB found that “[i]n principal part, the ALJ’s dismissal was a sanction based on Complainant’s vexatious litigation and inability to represent himself,” and concluded that “the ALJ was within his discretion to dismiss the case for failure to follow ALJ directives.” Slip op. at 4 and 5.
One member of the ARB dissented on the ground that the ALJ’s order of dismissal could not reasonably be read as being based on two alternative grounds — but instead solely based on Complainant’s failure to nominate a guardian ad litem. The dissenting member found that the ALJ had not based that decision on probative evidence, and had not considered what appears to be a lack of authority for an ALJ to require to require a party to nominate a guardian ad litem. The dissenting member indicated that the ARB’s limited appellate role mandated that it consider the ALJ’s order of dismissal strictly as it came before it.