Asmore v. Amtrak, ARB No. 2020-0049, ALJ No. 2018-FRS-00140 (ARB July 28, 2020) (per curiam) (Decision and Order Approving Settlement and Dismissing Complaint With Prejudice)

The ARB approved the parties' settlement agreement.

Dick v. United Services Automobile Association, ARB No. 2019-004, ALJ No. 2018-STA-00054 (ARB July 23, 2020).(Order Dismissing Interlocutory Appeal)

[STAA Digest II Q]
INTERLOCUTORY APPEAL; PETITION FOR REVIEW OF ALJ SUMMARY DECISION FINDING COMPLAINANT WAS NOT A COVERED EMPLOYEE VIS-À-VIS ONE RESPONDENT WAS A REQUEST FOR AN INTERLOCUTORY APPEAL WHERE CLAIM AGAINST ANOTHER RESPONDENT WAS STILL PENDING BEFORE ALJ; SITUATION DID NOT MET COLLATERAL ORDER EXCEPTION

In Dick v. United Services Automobile Association (USAA), ARB No. 2019-004, ALJ No. 2018-STA-00054 (ARB July 23, 2020), the ALJ granted summary decision dismissing United Services Automobile Association (USAA) as a Respondent. The claim against Respondent Contracted Driver Services, Inc. (CDS), however, remained pending before the ALJ. Complainant filed a petition for review with the ARB. The ARB issued an order to show cause why the petition should not be dismissed as an interlocutory appeal. It later issued a clarification order explaining Board practice regarding potential interlocutory appeals. The ALJ stayed the hearing proceedings.

The ARB denied the petition. The ARB cited Elliott v. Archdiocese of New York, 682 F.3d 213, 219 (3d Cir. 2012), in which the court held: “Generally, an order which terminates fewer than all claims pending in an action or claims against fewer than all the parties to an action does not constitute a ‘final’ order for purposes of 28 U.S.C. § 1291.”

The ARB noted that Complainant had not asked the ALJ to certify the issue decided (that Complainant was not an USAA employee) for appeal as provided in 28 U.S.C. § 1292(b). The ARB stated that, as a consequence, to consider the interlocutory appeal, the ARB would have to determine that the order met the collateral order exception recognized by the Supreme Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).. The ARB determined that it did not, finding that “[w]hile the ALJ has decided the question whether Complainant was a USAA employee (and has decided that he was not), it is not collateral to his complaint that he is entitled to relief, but instead is integrated with his overall claim against Respondents.” Slip op. at 4 (footnote omitted). The ARB noted its ruling in Dempsey v. Fluor Daniel Inc., ARB No. 2001-0075, ALJ No. 2001-CAA-00005, slip op. at 2 (ARB May 7, 2002) (stating “[b]ecause the R. D. & O. did not dispose of the case on its merits, but only decided the initial issue whether Dempsey was a covered employee, Fluor Daniel’s appeal is interlocutory.”). Id. at 5, n.16.

Davenport v. LTI Trucking Services Inc., ARB No. 2020-0026 ALJ No. 2016-STA-00015 (ARB July 22, 2020) (per curiam) (Decision and Order)

[STAA Digest VI B 4]
ADVERSE EMPLOYMENT ACTION; RESPONDENT’S SENDING DRIVER HOME AFTER DISCOVERY THAT HE WAS NOT CLEARED TO DRIVE WAS NOT AN ADVERSE ACTION WHERE COMPLAINANT WAS NOT FIRED AND COULD HAVE RETURNED TO WORK ONCE CLEARED, AND THE RECORD DID NOT SHOW AN ATTEMPT BY RESPONDENT TO FORCE COMPLAINANT OUT OF WORK OR TO CONSTRUCTIVELY DISCHARGE COMPLAINANT

In Davenport v. LTI Trucking Services Inc., ARB No. 2020-0026 ALJ No. 2016-STA-00015 (ARB July 22, 2020) (per curiam), Respondent had a policy that if a driver could not drive due to illness for more than a short period of time, it would send the driver home. The driver is permitted to return to work after being cleared by a medical provider and passing a physical examination. In the instant case, Complainant had been complaining that the truck was making him ill. When Respondent learned that Complainant was not medically cleared to drive, it told Complainant that he could not use Respondent’s truck, took away the keys to the truck, and provided Complainant a bus ticket home. Complainant asked if Respondent would instead pay for a hotel room so that he could see doctors in the area of the workplace. Complainant also asked if he was being fired. Respondent declined to pay for a hotel but informed Complainant he was not being fired but only being sent home until he was well enough to drive. Complainant refused the bus ticket and never returned to work.

The ALJ who originally heard the case found that Complainant had voluntarily quit, and the ALJ who decided the case on remand concluded that the record supported the first ALJ’s findings. The ARB agreed. The ARB first noted that the case was similar to prior cases in which the ARB had affirmed ALJs’ findings that no termination occurred. The ARB further noted that Respondent had not told Complainant to “drive or go home.” Rather, “Respondent’s decision to send Complainant home was based on a company policy that if a driver cannot drive for an extended period of time he or she should be sent home until medically cleared to drive (and having passed a physical examination).” Slip op. at 6 (citations omitted). The ARB also found that Respondent had not tried to force Complainant to leave work or constructively discharge Complainant. The ARB found that Respondent had been attempting to discover and remedy any problems it found with Complainant’s truck as they materialized. Finally, the ARB stated that “in this case there was no memorialization by Respondent that Complainant quit or was fired when he left, which supports that Respondent did not terminate Complainant’s employment.” Id. at 7. The ARB concluded by stating:

This is a straightforward case in which Respondent did not fire Complainant even though Complainant chose to interpret his being sent home because he was not well enough to drive as a termination decision. Again, the ALJ so found and concluded and those findings and conclusions are supported by substantial evidence in the record and in accordance with law

Id.

[STAA Digest IV H]
AFFIRMATIVE DEFENSE; COMPLAINANT MADE STATEMENT INDICATING SYMPATHY WITH THOSE WHO ENGAGE IN WORKPLACE VIOLENCE

In Davenport v. LTI Trucking Services Inc., ARB No. 2020-0026 ALJ No. 2016-STA-00015 (ARB July 22, 2020) (per curiam), the ARB affirmed the ALJ finding that—assuming arguendo that Complainant’s decision not to return to work after being sent home because he was not medically cleared to drive was a termination—Respondent proved that it would have refused to take Complainant back to work absent protected activity. Complainant did not dispute that he had written to an insurer that he understood why people take AK-47 weapons and go off. Respondent learned of the statement, and Respondent’s Director of Safety credibly testified that it concerned him so much that he decided that Complainant would not be permitted to return to work.

[STAA Digest VI B 4]
ADVERSE ACTION; MERE SPECULATION INSUFFICIENT TO ESTABLISH BLACKLISTING

In Davenport v. LTI Trucking Services Inc., ARB No. 2020-0026 ALJ No. 2016-STA-00015 (ARB July 22, 2020) (per curiam), the ARB affirmed as based on substantial evidence the ALJ’s finding that “Complainant did not fulfill his burden to prove that Respondent blacklisted him by a preponderance of the evidence because Complainant failed to introduce or identify any evidence that Respondent blacklisted him other than mere speculation.” Slip op. at 8. Complainant alleged that Respondent blacklisted him by telling other employers not to hire him because he had a “preexisting condition.” Although Complainant recorded a conversation with the owner of a potential employer, the recording did not establish that the potential employer ever communicated with anyone at Respondent. The owner denied knowledge of the job application getting to the point where his company would have contacted Respondent for references, and speculated that the decision not to hire Complainant was based on information contained in driver history reports. On appeal, the ARB noted the ALJ’s findings that “Complainant did not present any evidence of what his driver reports contained, that Respondent provided any negative information to be placed on his driver reports, or that anyone at Respondent actually communicated with anyone at a prospective employer.” Id.

Johnson v. FedEx Ground Package System, Inc., ARB No. 2019-0024, ALJ No. 2018-STA-00028 (ARB July 22, 2020) (Decision and Order Dismissing Interlocutory Appeal)

[STAA Digest II Q]
INTERLOCUTORY APPEAL; COMPLAINANT’S APPEAL OF ALJ’S GRANT OF SUMMARY DECISION DISMISSING ONLY ONE RESPONDENT DISMISSED AS INTERLOCUTORY

In Johnson v. FedEx Ground Package System, Inc., ARB No. 2019-0024, ALJ No. 2018-STA-00028 (ARB July 22, 2020), the ALJ issued a summary decision dismissing FedEx from the action. This dismissal, however, did not concern claims against other Respondents which remained pending before the ALJ. Complainant filed a petition for ARB review. The ARB issued an order to show cause why the petition should not be denied as interlocutory. Complainant replied, agreeing that the petition should be dismissed as interlocutory, and noting that he had only filed the petition in an abundance of caution to preserve his appeal rights. The ARB thus dismissed the petition.

Towe v. Autobahn Freight Lines, Ltd., ARB No. 2020-0045, ALJ No. 2019-STA-00069 (ARB July 22, 2020) (Order [Dismissing Appeal as Untimely])

The Complainant’s petition for review was dismissed after he did not respond to the ARB’s order to show cause why the petition should not be dismissed as untimely filed.

Cole v. Norfolk Southern Railway Co., ARB No. 2019-0029, ALJ No. 2018-FRS-00023 (ARB July 14, 2020) (Decision and Order)

PROTECTED ACTIVITY; COMPLAINANT FIRED FOR COMMUNICATIONS WITH RAILWAY CLIENT DETRIMENTAL TO RAILWAY’S RELATIONSHIP WITH THE CLIENT COULD NOT SHOW THAT DECISIONMAKERS WERE AWARE AT THE TIME OF THE DECISION OF ANY PURPORTED SAFETY CONCERNS RAISED WITH THE CLIENT DURING THE COMMUNICATIONS; CLIENT WAS NOT SHOWN TO BE AN ENTITY WITH AUTHORITY TO INVESTIGATE, DISCOVER, OR TERMINATE THE MISCONDUCT UNDER § 20109(a)(1)(C) WHERE COMPLAINANT KNEW RESPONDENT HAD MADE DECISION TO USE OHIO RATHER MICHIGAN BASED CREWS TO SERVICE CLIENT

In Cole v. Norfolk Southern Railway Co., ARB No. 2019-0029, ALJ No. 2018-FRS-00023 (ARB July 14, 2020), Complainant was a conductor for Respondent railway in its Dearborn Division, and local chair of his union. Respondent entered into a contract with DTE Energy to provide rail service to coal-fired plants in the Detroit area. Respondent informed the unions that Ohio-based crews would be used for the service. The unions opposed this decision under the Railway Labor Act. Respondent filed a civil action in Federal district court seeking arbitration. Complainant, seeking information to provide witness names for the Federal suit, contacted an official at DTE during which he asked the DTE official to “confirm or deny” whether DTE made the decision to use Ohio-based crews. During the conversation, Complainant asked the DTE “[i]f the union was to put it on a billboard that DTE was requiring the Norfolk Southern to move, or to use the base in Toledo would that be true?” The DTE official cautioned that DTE would pursue a libel claim if false information was published, to which Complainant replied, “Oh, we have our lawyers too.” When Respondent learned of the phone call, Complainant was removed from service pending an investigation into whether Complainant had attempted to undermine Respondent’s business relationship with DTE. Complainant was ultimately terminated for conduct unbecoming of an employee and detrimental to Respondent’s interests. Complainant filed a FRSA complaint with OSHA. The ALJ granted summary decision denying the complaint finding that the conversation with the DTE official was not protected activity. The ARB summarily affirmed the ALJ’s decision.

The ARB found that the record supported Respondent’s contention that Complainant did not convey to Respondent at any point prior to his termination any safety concerns he may have raised to the DTE official. Rather, the first time Complainant indicated that he conveyed safety concerns to the DTE official was during a deposition more than a year and half after his employment was terminated.

The ARB also found no merit to Complainant’s argument that his phone call with the DTE official was FRSA protected activity regardless of what was said because he believed DTE had “the authority to investigate, discover, or terminate the misconduct” pursuant to 49 U.S.C. § 20109(a)(1)(C). The ARB pointed to the complaint filed by Respondent in Federal court which stated that Respondent decided to use Ohio-based crews and that DTE was not involved in this decision. The ARB stated: “As DTE was not involved in this decision, it could not have investigated or terminated the alleged misconduct. Further, as Complainant was served with this complaint twelve days prior to his phone call with Mr. Corbett, he cannot demonstrate a good faith belief that Mr. Corbett, DTE’s Communications Manager, had the authority to investigate, discover, or terminate any alleged misconduct.” Slip op. at 8.

Varess v. Persian Broadcast Service Global, Inc., ARB No. 2020-0017, ALJ No. 2016-LCA-00019 (ARB July 14, 2020) (per curiam) (Decision and Order)

TIMELINESS OF LCA COMPLAINT; ARB INDICATES THAT ANY NON-PAYMENT OF WAGES DURING SECOND LCA PERIOD STARTS THE CLOCK; IN ALTERNATIVE, ARB RULES THAT RESPONDENT’S NOTIFICATION TO H-1B WORKER DURING SECOND LCA PERIOD THAT IT WOULD NO LONGER PAY HIM STARTED A LIMITATIONS PERIOD

BACK PAY; WHERE EMPLOYMENT INVOLVED TWO LCA PERIODS, BACK PAY LIABILITY EXTENDED TO BOTH LCA PERIODS EVEN THOUGH PLAINTIFF’S COMPLAINT WAS NOT FILED UNTIL SECOND LCA PERIOD

In Varess v. Persian Broadcast Service Global, Inc., ARB No. 2020-0017, ALJ No. 2016-LCA-00019 (ARB July 14, 2020) (per curiam), the ALJ initially found in favor of Respondent. On a first appeal, the case had been remanded to the ALJ after the ARB found that none of the exceptions to the Respondent’s obligations to pay wages under the LCAs applied. On remand, the ALJ was directed to determine the timeliness of the complaint. On remand, the ALJ held that the complaint was timely as Respondent’s obligation to pay Complainant wages continued until the end of a second LCA period, which ran from September 12, 2013, to September 12, 2015.

In its appeal of the ALJ’s decision on remand, Respondent argued that the complaint was not timely. The ARB, however, had rejected in its prior decision Respondent’s arguments as to why its obligation to pay ended at an earlier date. The ARB agreed with the ALJ’s explanation as to why Respondent was liable to pay wages for the duration of the second LCA, the ARB stating that: “It seems that any nonpayment of wages during the second LCA period would start the clock as a failure to perform an action.” The ARB held in the alternative that the evidence showed that “on July 11, 2014, Respondent paid Complainant wages and notified Complainant that it would no longer pay him”—and that “[c]onsidering this notification, notice of an adverse action, the limitations period would have started running on July 11, 2014. Thus, Complainant February 5, 2015 is timely under either alternative.”

The ARB affirmed the ALJ’s order of payment of back wages for both LCA periods.