Courtland Construction Corp., ARB No. 2017-0074 (ARB Sept. 30, 2019) (per curiam) (Final Decision and Order)
Respondent sought review of the Administrator’s denial of its request to add a “Concrete Finisher” classification to a wage determination under a DBA contract. The ARB affirmed the denial, finding that the Administrator “did not abuse her discretion in rejecting Courtland Construction’s conformance request and by determining a wage rate for the Concrete Finisher classification that bears a reasonable relationship to the wage rates in the contract….” Slip op. at 6.
Kelly v. State of Alabama Public Service Commission, ARB No. 2019-0080, ALJ Nos. 2019-CER-00001, 2019-ERA-00007, 2019-CAA-00004, 2019-CAA-00005 (ARB Sept. 30, 2019) (Final Decision and Order Denying Petition for Review)
The ARB declined review of the ALJ’s Decision and Order dismissing the complaints. The ALJ found that, to the extent that Complainant’s filings may have stated a complaint under any of the whistleblower protection statutes within his jurisdiction, they were untimely — and to the extent that the filings may have stated a claim under various non-whistleblower-protection statutes — he lacked jurisdiction to adjudicate those claims. The ARB found that Complainant’s petition for review did not controvert or explain the untimeliness of the complaints or the lack of jurisdiction.
Perez v. Citigroup, Inc., ARB No. 2017-0031, ALJ No. 2015-SOX-00014 (ARB Sept. 30, 2019) (per curiam) (Final Decision and Order)
EXTRATERRITORIAL APPLICATION OF SOX SECTION 806 NOT PERMITTED; DOMESTIC APPLICATION OF SECTION 806 FOUND NOT TO BE CREATED WHERE ONLY DOMESTIC CONTACTS WERE THAT THE ALLEGED FRAUD CONCERNED AN ACCOUNT IN THE U.S. AND U.S. SHAREHOLDERS WERE POTENTIALLY AFFECTED BY COMPLAINANT’s ALLEGATIONS
In Perez v. Citigroup, Inc., ARB No. 2017-0031, ALJ No. 2015-SOX-00014 (ARB Sept. 30, 2019) (per curiam), the ALJ granted Respondent’s motion for summary decision on the ground that the complaint required an extraterritorial application of Section 806 of SOX. The ARB summarized the ALJ’s rulings:
The ALJ noted that the uncontroverted evidence of record was that Complainant was a Mexico-based employee of a Mexican subsidiary of Respondent, and worked entirely in Mexico. Complainant was interviewed, hired, and effectively terminated in Mexico, and his job included no business travel to the United States. . . . Further, the protected activity and adverse action all occurred in Mexico. The ALJ reasoned that although the alleged fraudulent misconduct Complainant reported involved an account located in the U.S., this fact did not confer jurisdiction or authorize application of Section 806 of SOX to Complainant’s case. . . .
Slip op. at 3 (citations to ALJ decision omitted). The ARB affirmed:
We have recently held that Section 806 is not extraterritorial in Hu v. PTC, Inc., ARB No. 2017-0068, ALJ No. 2017-SOX-00019, slip op. at 7-9 (ARB Sept. 18, 2019). In Hu, we concluded that the primary focus of Section 806 was to deter and punish retaliation against an employee’s terms conditions and privileges of employment. This interpretation is consonant with the actual language of Section 806, although we recognize that SOX, as an entire legislative enactment, has a number of goals. It is clear that an attempt to apply the terms and remedies of Section 806 outside the United States could lead to frequent conflict with the laws of foreign nations and potentially inconsistent results for employees. Therefore, to allow the adjudication of the complaint before us, it must be a domestic application of Section 806. Id. at 10. When deciding the question, we have held that “the location of the employee’s permanent or principal worksite is the key factor to consider.” Id.
Id. at 4-5 (footnote omitted). Applying this analytical framework, the ARB found that “[t]he only domestic contacts in this matter are that the fraud Complainant allegedly reported concerned an account in the U.S. and that U.S. shareholders were potentially affected by Complainant’s allegations” and that “[t]hese facts, without more, do not create a domestic application of Section 806.” Id. at 5.
Carter v. CPC Logistics, Inc., ARB No. 2018-0078, ALJ No. 2012-STA-00061 (ARB Sept. 26, 2019) (per curiam) (Final Decision and Order)
Final Decision and Order
CONTRIBUTING FACTOR CAUSATION; IN FACT-SPECIFIC DECISION, COMPLAINANT’s SINGLE INSTANCE OF PROTECTED ACTIVITY OF REPORTING FATIGUE FOUND INSUFFICIENT TO SHOW CONTRIBUTORY FACTOR CAUSATION WHERE OVERWHELMING EVIDENCE SHOWED THAT DECISION TO DISCHARGE COMPLAINANT WAS BASED ON HIS DISCIPLINARY HISTORY, HIS FAILURE TO IMPROVE HIS PERFORMANCE, AND HIS UNEXPLAINED DELAYS
In Carter v. CPC Logistics, Inc., ARB No. 2018-0078, ALJ No. 2012-STA-00061 (ARB Sept. 26, 2019) (per curiam), the Fourth Circuit had remanded on the ground that the ALJ overlooked evidence indicating that Complainant reported his need to take breaks from driving to supervisors and that this oversight may have adversely affected the outcome of this case. The ALJ again denied the complaint on remand. In a very fact-specific decision, the ARB affirmed the ALJ’s determination on remand that — after re-reviewing all the evidence including the evidence he had overlooked in his first decision — Complainant’s protected activity had not contributed to his discharge. Specifically, the ALJ found that Complainant’s statements to Respondent that his delays were a result of fatigue breaks were untruthful. The ALJ found it unbelievable that Complainant suffered fatigue on nearly every run; that Complainant delayed his runs to annoy and harass his driving partner and to disrupt his partner’s schedule; that Complainant admitted he never recorded his rest breaks despite the obligation to do so on the trip manifests; with one exception, Complainant failed to inform Respondent contemporaneously of any bouts of fatigue or illness. The ARB affirmed the ALJ’s finding that Complainant’s claim of having made additional statements to Respondent concerning fatigue were not credible. On remand, the ALJ again found that Complainant had delayed by more than one hour nearly all his runs for three months prior to his discharge. The ARB noted that the ALJ’s D&O included several charts comparing Complainant’s run times with those of similarly situated drivers. The ARB summarized:
CPC’s admission that Carter’s breaks from driving were a factor in the decision to fire him does not establish that CPC violated the STAA because, with one exception, Carter failed to prove that those breaks constituted STAA-protected activity. The evidence he offered in support of his alleged protected activity was not credible to the finder of fact. Instead, the overwhelming evidence shows that Covert reviewed Carter’s job performance and Wallis made the decision to discharge Carter based on his disciplinary history, his failure to improve his performance, and his unexplained delays on the Jacksonville run. In sum, we agree with the ALJ’s conclusion that CPC’s termination of Carter’s employment did not violate the STAA.
Slip op. at 9 (footnote omitted).
Jeter v. Premier Transportation, ARB No. 2018-0049, ALJ No. 2016-STA-00029 (ARB Sept. 26, 2019) (Order Dismissing Appeal)
Appeal dismissed for failure to prosecute
Przytula v. Grand Trunk Western Railroad Co., ARB No. 2017-0007, ALJ No. 2014-FRS-00117 (ARB Sept. 26, 2019) (per curiam) (Final Decision and Order)
PROTECTED ACTIVITY; FRSA PROTECTED ACTIVITY IS NOT IMPLICATED WHEN COMPLAINANT WAS FOLLOWING THE INSTRUCTION A PHYSICIAN FOR AN ILLNESS NOT RELATED TO THE PERFORMANCE OF WORK DUTIES; RATHER § 20109(C)(2) APPLIES ONLY TO INJURIES SUFFERED AT THE WORKPLACE
In Przytula v. Grand Trunk Western Railroad Co., ARB No. 2017-0007, ALJ No. 2014-FRS-00117 (ARB Sept. 26, 2019) (per curiam), the ARB affirmed the ALJ’s grant of summary decision denying Complainant’s FRSA § 20109(c) “interference with prompt medical attention” complaint. Complainant had repeatedly been disciplined for absences from work, and terminated on two occasions. On both those occasions he was permitted to return to work on “last chance” agreements. Subsequently, Complainant had two additional periods of absences. It was undisputed that “these illnesses were not caused by or related to his employment, and Przytula does not assert that, when he took those days off, he informed GTW that he was following the orders or treatment plan of a doctor.” Slip op. at 2. Respondent conducted an investigative hearing resulting in Complainant’s discharge for violating the company’s absenteeism work rules and the terms of his most recent last chance agreement. Complainant filed a FRSA complaint alleging that he missed work as a result of a medical condition that interfered with his ability to safely perform his job duties, and that he was following the orders and treatment plan of his treating physician.
On appeal, the ARB noted that it had “recently discussed the extent of employee protection provided by Section 20109(c) in Wevers v. Montana Rail Link, Inc.” Id. at 5 (footnote omitted). The ARB stated:
In that case we concluded that “subsection 20109(c)(1) prohibits an employer from denying, delaying, or interfering with medical treatment or first aid only in the temporal period immediately following a workplace injury.” We also noted that the purpose of subsection (c)(2) is to ensure that an injured employee can follow an ongoing treatment plan for the injury suffered in subsection (c)(1).
Id. (footnote omitted). The ARB further noted that several federal court had “also concluded that subsection (c)(2) applies only to injuries suffered at the workplace.” Id. at 5-6 (footnote omitted). The ARB thus found that Respondent was entitled to summary decision as a matter of law. The ARB stated:
In this case, there is no dispute that the illnesses and absences that were the cause of Przytula’s discharge were not related to any injuries suffered during the course of employment. Przytula asserts his claim solely on the argument that the FRSA does not allow GTW to discharge him for following any treatment ordered by a physician. This is an incorrect interpretation of the statute. Przytula did not engage in FRSA-protected activity when he informed GTW that he was following the instruction of a physician for an illness not related to the performance of his duties. He has therefore failed to show that there is a genuine issue of material fact requiring a hearing on the merits of his claim.
Id. at 6 (emphasis as in original).
Varess v. Persian Broadcast Service Global, Inc., ARB No. 2018-0023, ALJ No. 2016-LCA-00019 (ARB Sept. 26, 2019) (per curiam) (Decision and Order Reversing and Remanding)
FAILURE TO PAY REQUIRED WAGES; ONLY EXCEPTIONS TO OBLIGATION ARE WHERE EMPLOYER EFFECTED A BONA FIDE TERMINATION OR WHERE EMPLOYEE VOLUNTARILY WENT INTO NONPRODUCTIVE STATUS; WORK OUTSIDE THE U.S., EMPLOYEE MISCONDUCT, AND EMPLOYEE FAILURE TO WORK WITHIN AREA OF INTENDED EMPLOYMENT DO NOT NEGATE EMPLOYER’s OBLIGATION TO PAY REQUIRED WAGES
In Varess v. Persian Broadcast Service Global, Inc., ARB No. 2018-0023, ALJ No. 2016-LCA-00019 (ARB Sept. 26, 2019) (per curiam), Complainant was the beneficiary of an E-3 visa for which Respondent filed two LCAs with DOL. Complainant worked as a television producer and reporter; during periods of employment under the LCA, he worked outside the U.S. producing and hosting sports programs for Respondent. Complainant filed a complaint with the WHD alleging unpaid wages. Neither the WHD Administrator nor the ALJ found any LCA violations. The ARB, however, reversed and remanded “because Respondent failed to pay Complainant the required wage under his two LCA periods and neither of the two possible exceptions applies.” Slip op. at 3.
Complainant’s having worked outside the U.S. does not negate employer’s responsibility to pay required LCA wages
The ARB found that Respondent had failed to pay the required wage under both LCAs. Respondent conceded that it had never effected a bona fide termination of Complainant’s employment. The ARB rejected the argument that Complainant had put himself in nonproductive status by leaving the U.S. The ARB stated that the mere fact that Complainant was outside the U.S. did not by itself indicate that he was not performing work for Respondent. The ARB stated: “Respondent’s allegation that Complainant ‘ quit’ does not negate Respondent’s responsibility to pay wages under the LCAs in this case. Respondent has not proven that Complainant put himself in nonproductive status simply because he was out of the country.”
Complainant’s alleged misconduct is not an exception justifying failure to pay required wages
Respondent argued that Complainant had misled it — having handled all the paperwork, making all arrangements, and misrepresenting the binding nature of LCAs) — and that once he secured his visa, he had no interest in abiding by the terms of the LCAs. The ARB, however, noted:
Under the implementing regulations at § 655.731, bona fide termination and voluntary nonproductive status found in 731(c)(7)(ii) are the only two alternatives to the employer’s obligation to pay LCA wages through the LCA period. The employer’s lack of work or the employee’s misconduct do not excuse an employer’s failure to pay wages
Slip op. at 6 (footnote omitted). The ARB further stated:
Complainant’s alleged misconduct does not affect Respondent’s duty to pay Complainant the wage set in the LCAs. The INA and the regulations provide that employers must submit labor condition applications to DOL. Respondent’s president Shadjareh signed both LCAs for submission to DOL as Complainant’s employer. Shadjareh’s signature affirms the truth of the statements on the LCA and acknowledges the employer’s agreement to those labor condition statements (attestations) that are specifically identified. Shadjareh testified that he signed the LCAs because he was relying on Complainant and Complainant’s attorney’s representations that they were just a formality and he wanted to do a favor for Complainant. . . . However Shadjareh may not evade his obligations under the LCAs by asserting that he did not believe the documents were valid or enforceable. We hold that Complainant’s misrepresentations, even assuming their success, do not relieve Respondent of the obligation to pay back wages.
Id. at 7 (citations and footnote omitted) (emphasis as in original).
Complainant’s failure to work in area of intended employment does not negate obligation to pay required LCA wages
Respondent argued that, because he was outside the U.S., Complainant had not complied with the terms of the LCA or regulations requiring him to work in the area of intended employment — and thus Respondent should be absolved of its wage obligations under the INA. The ARB was not persuaded by this argument, Respondent having not cited “any legal authority empowering DOL to consider Complainant’s noncompliance with respect to LCAs as negating Respondent’s wage obligations under the INA.” Id.
The ARB remanded for the ALJ to consider Respondent’s alternative argument that the complaint was not timely filed, and to allow the ALJ to make findings of fact as to the amount of damages (the ALJ having mistakenly found that Complainant never submitted a computation of claimed damages).
TIMELINESS OF COMPLAINT; WHERE RESPONDENT SIGNED SECOND LCA AND IT WAS CERTIFIED BY DOL, FACT THAT COMPLAINANT FAILED TO RENEW E-3 VISA WAS NOT RELEVANT; REGULATIONS FOCUS ON LATEST DATE RESPONDENT’s ALLEGED VIOLATIONS OCCURRED
In Varess v. Persian Broadcast Service Global, Inc., ARB No. 2018-0023, ALJ No. 2016-LCA-00019 (ARB Sept. 26, 2019) (per curiam), the ARB reversed the ALJ’s finding that Respondent had not violated its obligation to pay wages required by two LCAs. The ARB remanded because the ALJ had not ruled on Respondent’s alternative contention that the complaint was not timely filed. The ARB, however, was not persuaded by Respondent’s contention that Complainant’s failure to renew his E-3 visa for the second LCA period meant that the expiration of the first LCA period was the latest day on which a violation could have occurred. The ARB stated:
[T]he second LCA was signed by the Respondent, certified by the DOL, and constituted an obligation Respondent had to abide by until the expiration of the LCA period or an exception to that obligation was satisfied. Respondent’s argument attempts to shift the relevant focus to the Complainant’s activity but the regulations provide that the Complainant has to file a complaint “not later than 12 months after the latest date on which the alleged [employer’s] violation(s) were committed.” 20 C.F.R. § 655.806(a)(5). As such, we will remand to the ALJ to make appropriate findings of fact as to whether Complainant’s February 5, 2015 complaint was filed “not later than 12 months after the latest date on which” Respondent violated its LCA obligations.
Slip op. at 8.
Yates v. Superior Air Carrier LLC, ARB No. 2017-0061, ALJ No. 2015-AIR-00028 (ARB Sept. 26, 2019) (per curiam) (Final Decision and Order)
PROTECTED ACTIVITY; WHERE COMPLAINANT ASSISTED AND PARTICIPATED IN NTSB INVESTIGATION OF CRASH, THIS WAS SUFFICIENT TO ESTABLISH PROTECTED ACTIVITY UNDER § 42121(a)(4), AND IT WAS NOT NECESSARY ON APPEAL TO DETERMINE WHETHER THE MATTTERS REPORTED WERE ALSO PROTECTED ACTIVITY UNDER § 42121(a)(1) OR (2)
In Yates v. Superior Air Carrier LLC, ARB No. 2017-0061, ALJ No. 2015-AIR-00028 (ARB Sept. 26, 2019) (per curiam), Respondent argued on appeal that Complainant had not established that he engaged in protected activity when he emailed an NTSB investigator about concerns with the NTSB’s report concerning a crash in which Complainant had been the First Officer (second-in-command), as Complainant had not identified any FAA or other air safety order, regulations or standard that was allegedly violated. The ARB, however, agreed with the ALJ that, regardless of whether Complainant’s reports were themselves protected activity under 49 U.S.C. § 42121(a)(1) or (2), both Complainant’s interview with the NTSB and his later email to the NTSB qualified as assistance or participation in a proceeding relating to carrier safety as described in 49 U.S.C. § 42121(a)(4). Because this finding was sufficient to resolve the question of protected activity, the ALJ had correctly resolved the matter with this basic finding despite the parties’ zealous arguments on additional facts and theories of law.
CONTRIBUTORY FACTOR CAUSATION; LEVEL OR QUANTUM OF CAUSATION THAT A COMPLAINANT IS REQUIRED TO SHOW SHOULD NOT BE CONFUSED WITH A COMPLAINANT’s BURDEN OF PROOF TO ESTABLISH THE REQUIRED CAUSATION EXISTS; EVEN IF PALMER DECISION WAS UNSUCCCESFUL IN EXPLAINING THIS DIFFERENCE, WHERE THERE WAS DIRECT EVIDENCE OF CAUSATION AND SUBSTANTIAL EVIDENCE SUPPORTED ALJ’s DECISION, ARB MUST AFFIRM EVEN IF ANOTHER ALJ LOOKING AT SAME RECORD MIGHT DECIDED FOR RESPONDENT
In Yates v. Superior Air Carrier LLC, ARB No. 2017-0061, ALJ No. 2015-AIR-00028 (ARB Sept. 26, 2019) (per curiam), Respondent argued on appeal that the ALJ applied an incorrect burden of proof as to contributing factor causation, and that the ARB’s decision in Palmer v. Canadian Nat'l Ry. I Ill. Cent. R.R. Co., ARB No. 16-035, ALJ No. 2014-FRS-154, slip op. at 14-15 (ARB Sept. 30, 2016, reissued Jan. 4, 2017) misstates the burden of proof. The ARB observed that Respondent appeared to be confusing in this regard “what level or quantum of causation that a complainant is required to show with a complainant’s burden of proof to establish the required causation exists. These two burdens are distinct, as Palmer attempted to explain, with an apparently questionable degree of success.” Slip op. at 7 (footnote omitted). The ARB stated that “[r]egardless of Palmer’s explanations about contributing factor causation or the ALJ’s recitations of them, we conclude that the ALJ correctly analyzed causation in this case.” Id. (footnote omitted; in the footnote, the ARB conceded that Palmer may have created confusion rather dispelling it). Here, the ALJ found direct evidence of causation based on Respondent’s statements and actions about Complainant’s protected activity. Respondent had found fault with Complainant’s email to an NTSB investigator about the NTSB’s report on a crash which Complainant had been the First Officer (second-in-command), “questioned his decision to write it and then suspended and terminated his employment because of his email.” Id. The ARB found that substantial evidence supported the ALJ’s finding on causation even if a different ALJ could have looked at the same record and drawn a different conclusion.
AFFIRMATIVE DEFENSE; ARB CLARIFIES MEANING OF “INEXTRICABLY INTERTWINED”; IT MEANS THAT TWO CHARACTERIZATIONS OF THE SAME EVENT CANNOT BE DISCUSSED OR UNDERSTOOD SEPARATELY; THAT IS DISTINCT FROM A SITUATION WHERE PROTECTED ACTIVITY LED DIRECTLY TO THE ADVERSE ACTION
In Yates v. Superior Air Carrier LLC, ARB No. 2017-0061, ALJ No. 2015-AIR-00028 (ARB Sept. 26, 2019) (per curiam), the ARB affirmed the ALJ’s finding that Respondent had not shown by clear and convincing evidence that it would have taken the same action against Complainant absent protected activity. The ALJ found that the meeting at which Respondent fired Complainant was called to address Complainant’s protected activity (sending an email to an NTSB investigator about the NTSB’s report on a crash which Complainant had been the First Officer (second-in-command)). The ALJ did not find it credible that Respondent lost faith in Complainant’s ability as a pilot during the meeting — the ALJ noting that Respondent had already printed out Complainant’s last paycheck prior to the meeting. The ALJ found that Respondent did not prove that it would have fired Complainant because of allegedly new information derived from the NTSB report. The ALJ found that Respondent had treated Complainant differently based on the fact that the company’s CEO—who was not normally involved in pilot discipline—was involved in Complainant’s firing. The ARB rejected Respondent’s argument on appeal that there was clear and convincing evidence that it fired Complainant because he refused to accept any responsibility for the crash—the ARB noting that Complainant had acknowledged pilot error during the NTSB investigation interview in the presence of Respondent’s VP of Operations.
In a footnote, the ARB clarified the meaning of the phrase “inextricably intertwined” in the context of analyzing an employer’s affirmative defense to an AIR21 retaliation claim. The ARB wrote:
At one point the ALJ stated that Complainant’s protected activity was “inextricably intertwined with the adverse employment action.” . . . We take the ALJ to mean that he found that Complainant’s protected activity directly led to the adverse action, rather than that the protected activity and the adverse action were essentially the same event. The Board has used the term “inextricably intertwined” in the past when the reason the employer gives for taking an adverse action arises out of the same occurrence which the employee cites as protected activity and when the two characterizations of the same event cannot be discussed or understood separately. See Speegle v. Stone & Webster Constr. Inc., ARB No. 11-029-A, ALJ No. 2005-ERA-006, slip op. at 12-13 (ARB Jan. 31, 2013) (holding that complainant’s protected activity was inextricably intertwined with the employer’s reasons for taking adverse action against complainant because complainant used profane language while making protected statements). In this case, it is more appropriate to conclude merely that the protected activity (Complainant’s report to the NTSB the day after the accident and the June 26, 2013 email) directly led to the adverse action. These protected actions are not, however, “inextricably intertwined” with Respondent’s stated reasons for the adverse action. Respondent asserted that Complainant’s attitude and expressions during the July 2nd meeting with Wilcox and Coulter caused Respondent to decide to terminate Complainant. On a different set of facts, had Respondent alleged as its stated reason for terminating Complainant that his protected activity had violated a company policy about reporting unsafe situations or that he had made false statements, then our previous decisions would support a description that the evidence was “inextricably intertwined.” But even if the protected activity in a given case and the stated basis for the adverse action were legally and factually “intertwined,” the ALJ must still thoroughly examine and analyze the evidence proffered in connection with any affirmative defense. Evidence that shows that protected activity and adverse action are sufficiently intertwined to establish that protected activity was, inescapably, a cause of an adverse employment action may nevertheless be insufficient to undermine clear and convincing counter evidence that Respondent would have taken the same action even in the absence of the protected activity.
Slip op. at 8, n.9 (emphasis as in original) (Wilcox was Respondent’s CEO, and Coulter was Respondent’s VP of Operations; Wilcox had called Complainant to ask him why he would send an email to the NTSB that would hurt the company further than it had already been hurt by the crash, and on the call had suspended Complainant; the July 2 meeting was called to discuss the email to the NTSB).
DAMAGES; ALJ EXCEEDED HIS AUTHORITY IN ORDERING RESPONDENT TO EMAIL THE ALJ’s DECISION TO ALL OF ITS EMPLOYEES, OFFICERS, AND DIRECTORS — AND TO SUBMIT TRAINING PLANS TO THE ALJ
DAMAGES; ORDER TO EXPUNGE RELEVANT PORTIONS OF PERSONNEL RECORD; ARB CLARIFIES THAT SUCH AN ORDER SHOULD BE CONSTRUED TO REQUIRE REASONABLE SEGREGATION OF THE RELEVANT INFORMATION FROM COMPLAINANT’s EMPLOYMENT RECORDS BECAUSE EMPLOYERS MAY BE REQUIRED BY OTHER ADMINISTRATIVE AND LEGAL OBLIGATIONS TO RETAIN SUCH RECORDS FOR REASONS UNRELATED TO EMPLOYMENT STATUS
In Yates v. Superior Air Carrier LLC, ARB No. 2017-0061, ALJ No. 2015-AIR-00028 (ARB Sept. 26, 2019) (per curiam), the ALJ ordered back pay; compensatory damages; expungement of relevant negative personnel records; emailing of the D&O to all employees, officers and directors; a nominal emotional damages payment; and pre- and post-judgment interest on the back pay award. On appeal, Respondent’s only objection as to damages was the order to email the D&O to all employees, officers and directors — arguing that “because Complainant did not establish that Respondent engaged in a pattern or practice of discrimination such action is not warranted.” Slip op. at 10. The ARB wrote:
We reverse this aspect of the ALJ’s damages award, specifically, the ALJ’s order that Respondent must email copies of its D.&O. To employees, officers, and directors, provide and place a summary of the order in the email, and provide the summary as well as Respondent’s plans to effectuate further training regarding AIR 21 to the ALJ. The regulations provide that if we conclude that the employer has violated the law, we shall order the employer to abate the violation. 29 C.F.R. § 1979.110(d). We hold that the ALJ erred by requiring Respondent to email the D. & O. to all of its employees, officers, and directors and submit its training plans to the ALJ; such measures are not authorized by statute or regulation and go further than necessary or appropriate to ensure abatement of the injury suffered in this case. We do not disturb any other aspects of the ALJ’s damages award as they have not been appealed. See 29 C.F.R. § 1979.110(a).
As to the order to expunge, the ARB noted:
We recognize that other administrative and legal obligations may require that certain information and records about the incident and Complainant’s involvement be retained and used for reasons unrelated to Complainant’s employment status. We clarify that Respondent should take reasonable steps to keep those records segregated from Complainant’s employment records to ensure that Complainant suffers no further adverse employment action as a result of his protected activities.
Id. at 9, n 11.
OFCCP v. Patriot Steel, LLC, ARB No. 2019-0086, ALJ No. 2019-OFC-00001 (ARB Sept. 24, 2019) (Final Administrative Order)
Because no party filed exceptions to the ALJ’s Recommended Decision and Order of Default Judgment, the ARB adopted the ALJ’s decision as the Final Administrative Order in the matter and directed the parties to comply therewith. Because of the default, the ALJ entered OFCCP’s requested order debarring Defendant indefinitely from receiving future contracts or modifications or extensions of existing contracts, until it satisfies the Director of the OFCCP that it has undertaken efforts to remedy its prior noncompliance and is currently in compliance with the provisions of the Executive Order 11246 and it implementing regulations.
Hu v. PTC, Inc., ARB No. 2017-0068, ALJ No. 2017-SOX-00019 (ARB Sept. 18, 2019) (Final Decision and Order)
EXTRATERRITORIAL APPLICATION OF SOX; ARB REAFFIRMS ITS DECISIONS FINDING THAT SECTION 806 DOES NOT APPLY EXTRATERRITORIALLY; ARB DISAVOWS, IN PART, ITS SPILT DECISION IN BLANCHARD
EXTRATERRITORIAL APPLICATION OF SOX; WHERE COMPLAINANT WAS FOREIGN CITIZEN WORKING OUTSIDE THE U.S. FOR A FOREIGN SUBSIDIARY OF PUBLICLY TRADED U.S. PARENT, THE FACTS THAT THE TERMINATION DECISION MAY HAVE BEEN MADE DIRECTLY OR INDIRECTLY IN THE U.S.—AND THAT U.S. MARKETS MAY HAVE BEEN AFFECTED BY CONDUCT REPORTED BY COMPLAINANT—DID NOT, IN THEMSELVES, CREATE A DOMESTIC APPLICATION OF SECTION 806
In Hu v. PTC, Inc., ARB No. 2017-0068, ALJ No. 2017-SOX-00019 (ARB Sept. 18, 2019), Complainant was an employee of the foreign subsidiary a U.S company. Complainant alleged in his SOX complaint that he reported misconduct to both his direct employer and to the U.S. parent, and that the wrongdoing he reported affected the U.S. company’s financials and the U.S. markets. Complainant alleged that he was suspended and terminated by his employer on instructions from the U.S. parent. The uncontroverted evidence was that Complainant was not hired and never worked in the United States. The ALJ found that, although decisionmakers in the U.S. might have orchestrated his termination, this fact did not confer jurisdiction over or permit adjudication of a Section 806 case. The ARB applied the two-step framework for analyzing extraterritoriality from Morrison v. Nat’l Australia Bank, Ltd., 561 U.S. 247 (2010). The ARB stated:
As we held before and reaffirm now after Morrison, Section 806 is not extraterritorial in its reach. The text and legislative history of Section 806 does not contain a clear, affirmative indication that Congress intended extraterritorial application. Finding no indication of extraterritoriality, we hold that Section 806 is not extraterritorial.
Slip op. at 7 (footnotes omitted). The ARB noted that it had held that Section 806 does not apply extraterritorially in Ede v. The Swatch Group Ltd., ARB No. 05-053, ALJ Nos. 2004-SOX-68, -69 (ARB June 27, 2007); Balian u. Reedhycalog UK, ARB No. 07-080, ALJ No. 2007-SOX-20 (ARB Dec. 31, 2008); and Ahluwalia v. ABB, Inc., ARB No. 08-008, ALJ No. 2007-SOX-44 (ARB June 30, 2009). It further noted that the ARB had grappled with the question in a divided opinion in Blanchard v. Exelis Sys. Corp. , ARB No. 15-031, ALJ No. 2014-SOX-20 (ARB Aug. 29, 2017). In regard to Blanchard, the ARB stated:
Two members of the panel affirmatively held that Section 806 had extraterritorial reach as a matter of statutory construction. However, two of the panel members also held that Blanchard’s appeal could and should be resolved as a domestic application of Section 806 rather than as an extraterritorial matter. Whether viewed as an essential holding or as dicta, Blanchard’s discussion of extraterritoriality failed to appreciate the significance of Morrison and the absence of any action by Congress after Morrison to give Section 806 a clear reach beyond the domestic jurisdiction of the United States. Likewise, Blanchard’s reliance upon RJR Nabisco v. European Community, 136 S. Ct. 2090 (2016), is misplaced. The Court in RJR Nabisco held that the federal RICO statute could be applied extraterritorially in those cases in which the predicate offense statutes applied extraterritorially. 136 S. Ct. at 2102. The Board in Blanchard overlooked both the deep skepticism expressed by the Court in RJR Nabisco toward private foreign injury claims absent "clear direction from Congress," Id. at 2107, and the fact that Section 806 is just such a private cause of action: a whistleblower protection law wherein a successful complainant need only show a reasonable belief of a violation of one of the six categories of protected activity and retaliation because of that protected activity. As we now hold, Congress did not provide a clear indication of extraterritorial reach or address the concerns raised by applying Section 806 to foreign employment settings.
We agree, however, that the Blanchard case is properly understood as a domestic application of the law. We quote with approval, the concurring opinion of Chief Judge Igasaki in Blanchard:
Because I believe that this case is a domestic one, involving a U.S. Corporation with securities listed on a U.S. exchange. contracting with the U.S. military on a U.S. base that is [a] U.S. territory for purposes of the law and facts of this case, and employing a U.S. citizen employee contesting the application of U.S. rules and actions taken against him by managers in the U.S. or acting on their decisions, I do not agree that it presents an opportunity to define the general extraterritoriality of §806, or, as the ALJ has done, rule against Complainant because the matter is extraterritorial.
Blanchard, slip op. at 21.
Slip op. at 7, n.9.
The ARB found that the instant case aligned with the facts of Carnero v. Boston Sci. Corp., 433 F.3d 1 (1st Cir. 2006); that the ARB agreed with the analysis in Carnero; and that it was significant that Carnero was decided prior to Morrison, and that "neither the Supreme Court nor Congress have disturbed the specific holding of Carnero that Section 806 is domestic and not extraterritorial in its reach." Id. at 8, n.10.
The ARB then turned to the second step of Morrison, and found that "the primary focus of Section 806 is on the retaliatory adverse personnel action. While Sarbanes-Oxley’s overarching purpose may be to protect the markets from fraud, that meta-purpose is not dispositive of the question before us." The ARB stated:
Because we conclude that the primary focus of Section 806 is necessarily linked to deterring and punishing retaliation against an employee’s terms, conditions, and privileges of employment, the location of the employee’s permanent or principal worksite is the key factor to consider when deciding whether a claim is a domestic or extraterritorial application of Section 806. The focus is the employee and the controlling authority is labor and employment law rather than securities law. Accordingly, the location of other conduct, which may be the subject of other requirements, regulation or prohibitions under SOX, becomes less critical, if not irrelevant. In perhaps a majority of extraterritorial complaints under section 806 there is some tangential connection to the United States. Morrison, 561 U.S. at 266 ("[T]he presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case . . . . "). But a Section 806 complaint concerning an adverse action which affected an employee at a principal worksite abroad does not become territorial because the alleged misconduct occurred in the U.S., or because it had, or would have, effects on U.S. securities markets, or because the alleged retaliatory decision was made in the United States.
Id. at 10 (footnote omitted) (emphasis as in original). The ARB concluded that the facts that "the termination decision may have been made directly or indirectly in the U.S. and that the U.S. markets were, or would be, affected by the conduct identified in Hu’s allegations" did not "in and of themselves, create a domestic application of Section 806." Id. at 11.
Clem v. Computer Sciences Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, -00004 (ARB Sept. 17, 2019) (Decision and Remand Order)
[Nuclear & Environmental Digest XI A 2 a]
CONTRIBUTING FACTOR CAUSATION STANDARD; COMPLAINANT’S BURDEN IS PREPONDERANCE OF THE EVIDENCE; WHERE ALJ REPEATEDLY REFERRED TO COMPLAINANT’S EVIDENCE AS SUPPORTING A "REASONABLE INFERENCE" OF CONTRIBUTING FACTOR, IT WAS NOT CLEAR THAT ALJ APPLIED THE CORRECT STANDARD AND THE MATTER HAD TO BE REMANDED
In Clem v. Computer Sciences Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, -00004 (ARB Sept. 17, 2019), Complainants — both senior programmer analysts for a contractor which operated the DOE Occupational Health Clinic at the Hanford Nuclear Reservation site — filed complaints alleging that Respondent violated the whistleblower protection provisions of the ERA when it suspended them without pay, failed to pay them special pay, and failed to retain and rehire one of the complainants. The ALJ found in favor of Complainants. The ARB, however, remanded for further findings because the ALJ erred in his analysis related to causation. The ARB wrote:
Under the ERA, the employee must prove by a preponderance of the evidence that his protected activity contributed to the adverse action. The ERA’s implementing regulations state the following:
In cases arising under the ERA, a determination that a violation has occurred may only be made if the complainant has demonstrated by a preponderance of the evidence that the protected activity was a contributing factor in the adverse action alleged in the complaint.
29 C.F.R. § 24.109(b)(1); 42 U.S.C. § 5851(b)(3)(C).
The ALJ failed to properly apply this standard. The ALJ’s heading for this section states the following: "[t]he Circumstances Support a Reasonable Inference That the Protected Activity Was a Contributing Factor To Some Adverse Actions[.]" D. & O. at 23. By using the term "reasonable inference" without any other clarifying language or explanation, we are left to conclude that the ALJ did not apply the correct burden of proof by preponderance of evidence. Our conclusion is confirmed by the ALJ’s application of the facts to the standard in which the ALJ wrote the following: "[t]he circumstances support a reasonable inference that the protected activity was a contributing factor to CSC’s suspension of Messrs. Clem and Spencer without pay." D. & O. at 23; see Id. at 24, 25 (committing same error for retention, re-hire, and special pay analyses). In his closing, the ALJ found that "equity appears on the Complainants’ side here." D. & O. at 25. We are unable to ascertain how this finding fits into the statutory and regulatory framework and the parties’ respective burdens.
Slip op. at 14-15.
[Nuclear & Environmental Digest XI D 1]
SAME-ACTION DEFENSE; SAME-ACTION DEFENSE IS APPLIED AFTER A FACT-FINDER HAS FOUND THAT PROTECTED ACTIVITY CONTRIBUTED TO THE EMPLOYER’S ACTION; ALJ ERRED IN FOCUSING ON WHETHER RESPONDENT HAD PROVEN BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS JUSTIFIED IN TAKING ITS ACTIONS
In Clem v. Computer Sciences Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, -00004 (ARB Sept. 17, 2019), Complainants — both senior programmer analysts for a contractor which operated the DOE Occupational Health Clinic at the Hanford Nuclear Reservation site — filed complaints alleging that Respondent violated the whistleblower protection provisions of the ERA when it suspended them without pay, failed to pay them special pay, and failed to retain and rehire one of the complainants. The ALJ found in favor of Complainants. The ARB, however, remanded for further findings because the ALJ erred in his analysis related to the same-action defense standard. The ARB wrote:
The ALJ also erred in his analysis of CSC’s same-action defense. The ERA’s implementing regulations state the following:
If the complainant has demonstrated by a preponderance of the evidence that the protected activity was a contributing factor in the adverse action alleged in the complaint, relief may not be ordered if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected activity.
29 C.F.R. § 24.109(b)(l); 42 U.S.C. § 5851(b)(3)(D).
In his heading for the same-action-defense section, the ALJ wrote, CSC’s "Evidence of Justification Is Not Clear and Convincing." D. & O. at 26. In his closing findings for the retention decision, the ALJ wrote "I conclude Respondent has not produced clear and convincing evidence to show that the protected activity did not contribute to Ms. Conley’s choice of R.M. over Mr. Clem, after Messrs. Elsethagen and Spencer resigned." D. & O. at 27.
The ALJ erred in his analysis. The same-action defense requires the factfinder to analyze whether the employer has proven by clear and convincing evidence that it would have imposed the same adverse action if the employee had not engaged in protected activity. The same-action defense is applied after a fact-finder has already found that protected activity contributed to the employer’s action. Here, the ALJ shifted the focus of his analysis to whether CSC has proven by clear and convincing evidence that CSC was justified in taking its actions. D. & O. at 26, 28. Further, the ALJ’s finding on same-action defense double credits his finding of contribution and fails to give the employer the benefit of the same-action defense that it would have taken the same action had Clem and Spencer not engaged in protected activity. D. & O. at 27. In whistleblower law in particular, the same-action defense, in addition to being a statutory requirement, is an important component of the mixed-motives analysis. Stallard v. Norfolk Southern Ry, Co., ARB 16-028, ALJ No. 2014-FRS-149 (ARB Sept. 29, 2017) (remanding for the ALJ to, among other things, correct the erroneous merger of the "contributing factor" and same-action defense standards).
Slip op. at 5-16 (emphasis as in original).
[Nuclear and Environmental Digest VIII B 2 a]
SUBSTANTIAL EVIDENCE STANDARD OF REVIEW OF ALJ’S FINDINGS OF FACT; SUBSTANTIAL EVIDENCE IS SUCH RELEVANT EVIDENCE AS A REASONABLE MIND MIGHT ACCEPT AS ADEQUATE TO SUPPORT A CONCLUSION
In Clem v. Computer Sciences Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, -00004 (ARB Sept. 17, 2019), the ARB noted in discussing the substantial evidence standard of review of an ALJ’s findings of fact, that
the United States Supreme Court has recently noted, "[t]he threshold for such evidentiary sufficiency is not high." Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Substantial evidence is "’more than a mere scintilla.’ It means-and means only-’such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."’ Id. (citing and quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Slip op. at 10.
[Nuclear & Environmental Whistleblower Digest VIII A 2 c]
ALJ DECISION WRITING; CURSORY ANALYSIS OF FACT-INTENSIVE CASE FOUND INSUFFICIENT; BULLET-POINT FINDINGS OR ABBREVIATED ANALYSIS IS NOT INHERENTLY ERROR, BUT IT CANNOT LEAVE UNRESOLVED ISSUES
In Clem v. Computer Sciences Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, -00004 (ARB Sept. 17, 2019), the ARB found that the ALJ’s bullet point findings of fact and abbreviated analysis were too cursory where they left unresolved issues. The ARB explained:
As previously noted, the ARB will uphold an ALJ’s factual finding where supported by substantial evidence "even if there is also substantial evidence for the other party, and even if we would justifiably have made a different choice had the matter been before us de novo." Henrich v. Ecolab, Inc., ARB No. 05-030, ALJ No. 2004-SOX-051, slip op. at 8 (ARB June 29, 2006) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). A finding of fact lacks contextual strength and substantial evidence if the fact-finder ignores, or fails to resolve, a conflict created by countervailing evidence or "if it is overwhelmed by other evidence or if it really constitutes mere conclusion." Dalton v. U.S. Dept. of Labor, 58 Fed. Appx. 442, No. 01-9535, 2003 WL 356780, at *445 (10th Cir. Feb. 19, 2003); see Carter v. Marten Transp., Ltd., ARB Nos. 06-101, -159; ALJ No. 2005-STA-063, slip op. at 7-8 (ARB June 30, 2008) (citations omitted).
The Administrative Procedure Act requires that the adjudicator support any findings of fact:
The record shall show the ruling on each finding, conclusion, or exception presented. All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of-
(A) findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record; and
(B) the appropriate rule, order, sanction, relief, or denial thereof.
5 U.S.C. § 557(c).
On this record comprised of six days of hearing, hundreds of exhibits, and sharply diverging accounts as to the reasons for the suspension and other adverse actions, the ALJ’s findings concerning contribution and same-action defense are superficial and fail to engage adequately the parties’ arguments and the evidentiary record. The ARB’s appellate review requires that the ALJ conduct an appropriate analysis of the evidence to support his findings. It is essential that the ALJ "adequately explain why he credited certain evidence and discredited other evidence." See Sea "B" Mining Co. v. Addison, 831 F.3d 244, 253 (4th Cir. 2016).
We are unable to ascertain how the ALJ reached his ultimate findings concerning contribution and the affirmative defense in light of the record taken as a whole. Although an ALJ "need not address every aspect of [a party’s claims] at length and in detail," the findings "must provide enough information to ensure the Court that [he or she] properly considered the relevant evidence underlying [a] plaintiffs request[.]" Mori v. Dept. of the Navy, 917 F.Supp.2d 60, 65 (D.D.C. 2013). A reviewing court must be able to "discern what the ALJ did and why he did it." Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10 (4th Cir. 1999).
Slip op. at 16-17.
[Nuclear & Environmental Whistleblower Digest XI]
BURDEN OF PROOF; PROVING A FACT BY THE PREPONDERENCE OF THE EVIDENCE
In Clem v. Computer Sciences Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, -00004 (ARB Sept. 17, 2019), the ARB explained what it means to prove a fact by the preponderance of the evidence:
To prove a fact by a preponderance of the evidence "means to show that that fact is more likely than not; and to determine whether a party has proven a fact by a preponderance necessarily means to consider all the relevant, admissible evidence and, on that basis, determine whether the party with the burden has proven that the fact is more likely than not." Palmer v. Canadian Nat’l Ry, IL Cent. R.R. Co., ARB 16-035, ALJ No. 2014-FRS-154, slip op at 18 (ARB Jan. 4, 2017) (reissued with dissent).
Slip op. at 17-18.
[Nuclear & Environmental Digest XI D 1]
BURDEN OF PROOF FOR SAME ACTION DEFENSE; ALJ’S OBLIGATION TO EXPLAIN DELIBERATION ON CONFLICTING EVIDENCE; FACT-FINDER MUST HOLISTICALLY CONSIDER ANY AND ALL RELEVANT, ADMISSIBLE EVIDENCE
In Clem v. Computer Sciences Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, -00004 (ARB Sept. 17, 2019), the ARB explained how to assess the evidence presented on a respondent’s same-action defense:
For the same-action defense, the fact-finder must assess whether the respondent has demonstrated by clear and convincing evidence that it would have taken the action even if the employee had not engaged in protected activity. We have said that the employer satisfies this burden when it shows that it is "highly probable" that it would have taken the action in the absence of protected activity. Palmer, ARB 16-035, slip op. at 52. The ALJ’s findings of fact should show deliberation upon the facts in favor of a particular finding and consideration of the facts that take away from that finding. Carter v. Marten Transp., ARB 09-117, ALJ No. 2009-STA-031 (ARB July 21, 2011) ("two conclusory statements related to USIS’s liability . . . are insufficient to allow us to review the ALJ’s reasons for his conclusions."); Stallard, ARB 16-028 (finding one-sentence conclusions to be conclusory and remanding for analysis).
Slip op. at 18 (footnote omitted). In a note, the ARB limited its finding on the factors to be considered on the clear-and-convincing-evidence defense as articulated in Speegle v. Stone & Webster Constr., Inc. The ARB wrote:
We are aware that at least one panel of the Board has, in the past, asserted that the ERA "requires" that certain factors "must be considered in applying the ’clear and convincing’ defense." Speegle v. Stone & Webster Constr., Inc., ARB No. 13-074, ALJ No. 2005-ERA-006, slip op. at 12 (ARB Apr. 25, 2014). The factors identified by the panel were "(1) how ’clear’ and ’convincing’ the independent significance is of the non-protected activity; (2) the evidence that proves or disproves whether the employer "would have" taken the same adverse actions; and (3) the facts that would change in the "absence of’ the protected activity." Id. As these factors are not expressly prescribed in the statutory text and such a rule was not necessary to resolve the matter at issue, we consider the announced "requirement" to be merely precatory dicta. A fact-finder must holistically consider any and all relevant, admissible evidence when determining whether an employer would have taken the same adverse action against an employee in the absence of any protected activity. See 29 C.F.R. § 24.109(b)(l).
Id. at 18, n.8.
[Nuclear & Environmental Digest XI B 1]
[Nuclear & Environmental Digest XI D 1]
RESPONDENT’S ARTICULATED REASON FOR ADVERSE ACTION SHOULD BE EVALUATED ON BOTH THE CONTRIBUTING FACTOR AND SAME-ACTION DEFENSE ELEMENTS OF AN ERA CASE; IF REASONS ARE FOUND TO BE PRETEXTUAL, INFERENCES CAN BE DRAWN FROM SUCH PRETEXT SUFFICIENT TO MEET CONTRIBUTING FACTOR ELEMENT AND TO DEFEAT SAME ACTION DEFENSE — BUT ALJ MUST EXPLAIN WHY
In Clem v. Computer Sciences Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, -00004 (ARB Sept. 17, 2019), the ARB noted that an ALJ must evaluate a respondent’s stated reason for the adverse action both on contributing factor and same-action defense. The ARB also stated:
If a complainant shows that an employer’s reasons for its action are pretextual, he or she may, through the inferences drawn from such pretext, meet the evidentiary standard of proving by a preponderance of the evidence that protected activity was a contributing factor in the adverse action and that an employer cannot carry its burden to prove its same-action defense by clear and convincing evidence. Bechtel v. Competitive Tech. Inc., ARB 09-052, ALJ No. 2005-SOX-033 (ARB Sept. 30, 2011).
Slip op. at 20. Still, the ALJ must, if he finds the stated reasons are pretexual, "explain why and show how those findings of fact support his ultimate findings of contributing-factor causation by a preponderance of the evidence and the employer’s inability to prove its same-action defense by clear and convincing evidence." Id. at 20-21.
[Nuclear & Environmental Digest XI B 1]
[Nuclear & Environmental Digest XI D 1]
ARTICULATED REASON FOR ADVERSE ACTION; FOCUS IS NOT ON WHETHER THE REASON IS MERITORIOUS BUT ON WHETHER RESPONDENT GENUINELY BELIEVED THAT COMPLAINANT ENGAGED IN SANCTIONAL ACTIONS, ESPECIALLY ON THE SAME-ACTION DEFENSE ELEMENT
In Clem v. Computer Sciences Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, -00004 (ARB Sept. 17, 2019), the ARB found that the ALJ had not adequately considered Respondent’s stated reasons for the adverse action, the ALJ having focused on Respondent’s inability to precisely identify the type of proprietary information that Complainants allegedly shared with a competitor, and Respondent’s failure to prove that they actually shared that information. The ALJ also discussed uncertainties whether Respondent had a policy that that prevented employees from working with the competitor on transition content. The ARB indicated that the issue was not whether the reason was meritorious but whether Respondent genuinely believed the reason for the adverse action. The ARB wrote:
CSC correctly argues on appeal that CSC is not required to prove that Clem and Spencer shared proprietary information. This is, after all, a nuclear safety and retaliation matter, not simply a wrongful suspension case. And neither the ALJ nor the ARB is a super-personnel department, evaluating the merits of the employer’s decisions beyond the necessary parameters of the whistleblower retaliation complaint before it. Gale v. Ocean Imaging & Ocean Res., Inc., ARB No. 98-143, ALJ No. 1997-ERA-038, slip op. at 13 (ARB July 31, 2002); Jones v. U.S. Enrichment Corp., ARB Nos 02-093, 03-010, ALJ No. 2001-ERA-021 (ARB Apr. 30, 2004) ("It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiffs explanation of intentional discrimination.") (case citations omitted). It is not a question of whether Clem and Spencer actually shared proprietary information or whether CSC had an applicable policy prohibiting employees from colluding with competitors. Rather, the issue to be decided by the ALJ, on CSC’s affirmative defense in particular, is whether CSC genuinely believed that complainants colluded and shared proprietary information and suspended Clem and Spencer for this reason and not for activity protected under the ERA. Stone & Webster, Constr., Inc. v. U.S. Dept. of Labor, 684 F.3d 1127, 1136 (11th Cir. 2012).
Slip op. at 19.
Administrator, Wage and Hour Div. v. Fernandez Farms, Inc., ARB No. 2016-0097, ALJ No. 2014-TAE-00008 (ARB Sept. 16, 2019) (per curiam) (Final Decision and Order)
RESPONDENTS MUST BE NOTIFIED IN WRITING OF ADMINISTRATOR’S DETERMINATION TO DEBAR THEM FROM H-2A PROGRAM; FAILURE TO PROVIDE NOTICE UNTIL ALJ HEARING RESULTS IN DISMISSAL OF PARTIES NOT NAMED IN ADMINISTRATOR’S DETERMINATION; "FUTILITY"BASED ON SUCCESSOR-IN-INTEREST’S PROCLIVITY TO RECONSITUTE IS NOT A GROUND FOR FAILURE TO PROVIDE SUCH NOTICE
In Administrator, Wage and Hour Div. v. Fernandez Farms, Inc., ARB No. 2016-0097, ALJ No. 2014-TAE-00008 (ARB Sept. 16, 2019) (per curiam), the ARB affirmed the ALJ’s denial of the Administrator’s request to debar certain Respondents not listed on the original complaint based on the finding that the Administrator’s failure to give the those named individuals and entities proper notice of the action or an adequate opportunity to be heard. The Administrator argued on appeal that the ALJ had added a requirement of a written notice of debarment and opportunity to be heard. The ARB, however, found that the plain language of the regulations in 29 C.F.R. Part 501 establish such a requirement:
Specifically, § 501.20(e) requires that the Notice of Debarment be in writing, that it must state the reason for the debarment finding, and must identify appeal opportunities and a timeframe under which such rights must be exercised. The requirement for a written notice of debarment is further emphasized in § 501.31, which states plainly that "whenever the WHD decides . . . to debar . . . the person against whom such action is taken shall be notified in writing of such determination," and § 501.32 specifies the requirements of the notice, including the right of the affected party to request a hearing.
Slip op. at 6 (footnote omitted; this footnote noted the similar regulation at 20 C.F.R. § 655.182(f), which prescribes the procedure for an OFLC debarment). The ARB noted that these requirements were followed in the pursuit of disbarment of Fernandez Farms and Gonzalo Fernandez as an individual. It was not until the formal hearing, however, that it became clear that the Administrator was also seeking relief against three employees of Fernandez Farms, Inc., as well as two businesses as "successors in interest" to Fernandez Farms, Inc. The ARB affirmed the ALJ’s finding that "the minimal regulatory notice requirements were not met, and reject[ed] the Administrator’s contention that sufficient constructive notice was given to the named individuals and two businesses for them to be on notice that they would be subject to the debarment proceedings." Id. at 7 (footnote omitted).
The ARB was not persuaded by the Administrator’s argument that a new Notice of Debarment to successor-in-interest would have been futile due to the successors’ evasive and deceptive conduct — i.e., they would have simply reconstituted. The ARB stated: "Despite obvious efficiency benefits American law has never adopted a ’futility standard’ when considering the need for substantive or procedural safeguards in litigation. We are not insensitive to the difficulties of the often competitive enterprise of ferreting out unlawful conduct. The government cannot, however, ignore the requirements of existing regulations and then ask the administrative judiciary to approve that conduct." Id. at 4, n.10.
The ARB noted that the ALJ, in a separate Decision and Order that was not appealed, found that Respondent Gonzalo Fernandez violated certain provisions of the H-2A program, ordered payments to the Administrator for distribution to impacted workers, assessed substantial civil money penalties, and debarred that Respondent from participating in the H-2A program for the period of three years.
REGULATORY INTERPRETATION; WHILE ARB WILL OFTEN DEFER TO AGENCIES IN INTERPRETATION OF THEIR OWN REGULATIONS, SUCH DEFERENCE DOES NOT APPLY WHERE PROCEDURAL REGULATION’S PLAIN LANGUAGE DOES NOT REQUIRE INTERPRETATION
In Administrator, Wage and Hour Div. v. Fernandez Farms, Inc., ARB No. 2016-0097, ALJ No. 2014-TAE-00008 (ARB Sept. 16, 2019) (per curiam), the Administrator argued that the ALJ had added a requirement of a written notice of debarment and opportunity to be heard. In regard to the interpretation of an applicable procedural regulation, the ARB indicated that deference to the WHD’s interpretation was not warranted where the regulation’s procedure was stated in plain language. The ARB stated:
In reaching this holding [affirming the ALJ’s interpretation of the regulations] we have reviewed the applicable regulations giving weight to the plain language of the rules. The same rules of interpretation that are generally applicable to statutes may also be used to interpret administrative regulations. If the plain language of a statute or regulation is clear, "there is no need for further inquiry and the plain language of the statute will control its interpretation."
While the Board and other reviewing entities will often defer to agencies in the interpretation of their own regulations, this deference is based on the agency’s technical expertise about the subject matter being regulated, but it does not apply to an agency’s "interpretation" of procedural requirements written in plain language. Contrary to the Administrator’s contentions on appeal, the ALJ did not add a requirement of written notice of debarment and an opportunity to be heard. Rather, the implementing regulations promulgated (in part) by the Wage and Hour Division found in 29 C.F.R. Part 501 establish such a requirement.
Slip op. at 5 (footnotes omitted).
Aityahia v. Aviation Academy of America, ARB No. 2018-0028, ALJ No. 2017-AIR-00029 (ARB Sept. 12, 2019) (per curiam) (Final Decision and Order)
COVERED EMPLOYER UNDER AIR21; FLIGHT SCHOOL FOUND NOT TO BE A DIRECT OR INDIRECT AIR CARRIER OR CONTRACTOR OR SUBCONTRACTOR OF AN AIR CARRIER
SECTION 11(C) OF THE OSH ACT DOES NOT PROVIDE AN ADMINISTRATIVE REMEDY FOR DISMISSED COMPLAINTS
In Aityahia v. Aviation Academy of America, ARB No. 2018-0028, ALJ No. 2017-AIR-00029 (ARB Sept. 12, 2019) (per curiam), the ARB affirmed the ALJ’s dismissal of Complainant’s AIR21 on the ground that there was no evidence that Respondent was a direct or indirect air carrier or a contractor or subcontractor of an air carrier. The ARB also affirmed the ALJ’s conclusion that “Section 11(c) of the OSH Act does not provide an administrative remedy for complaints under that Act that are dismissed by the Secretary of Labor.”
The ALJ had found that Respondent was an aviation flight school that the sole purpose of aircraft pilot training, and although it utilized corporate IT and support services, such services were not provided to Respondent to enable it to engage in air transportation activities. See Aityahia v. Aviation Academy of America, 2017-AIR-00029 (ALJ Feb. 7, 2018).
Harte v. Metropolitan Transportation Authority, ARB No. 2017-0002, ALJ No. 2015-NTS-00002 (ARB Sept. 6, 2019) (per curiam) (Errata)
The ARB reissued its Final Decision and Order because it had misidentified counsel for the parties in the caption of its August 20, 2019 issuance. The reissued decision corrected the identification of counsel and remained the same in all other respects.
See the August Monthly Digest of ARB Decisions for casenotes on this decision.
Clifford v. Conoco Phillips, ARB No. 2017-0064, ALJ No. 2017-WPC-00002 (ARB Sept. 6, 2019) (Final Decision and Order)
[Nuclear & Environmental Whistleblower Digest III B 2 b]
TIMELINESS OF FILING OF COMPLAINT; TRIGGER DATE IS DATE OF FINAL, DEFINITIVE AND UNEQUIVOCAL NOTICE OF ADVERSE EMPLOYMENT ACTION, AND NOT DATE THAT EMPLOYEE EXPERIENCES THE CONSEQUENCES; FACT THAT COMPLAINANT CONTINUED TO BE AN EMPLOYEE DID NOT EXTEND THE LIMITATIONS PERIOD
[Nuclear & Environmental Whistleblower Digest III B 2 a]
TIMELINESS OF FILING OF COMPLAINT; DATE OF DISCOVERY OF ALLEGEDLY RETALIATORY MOTIVE DOES NOT EXTEND FILING PERIOD; DISCOVERY OF THE INJURY STARTS THE LIMITATIONS PERIOD, NOT THE DISCOVERY OF THE OTHER ELEMENTS OF A CLAIM
In Clifford v. Conoco Phillips, ARB No. 2017-0064, ALJ No. 2017-WPC-00002 (ARB Sept. 6, 2019), Complainant alleged that her former employer, Conoco Phillips, violated the Federal Water Pollution Control Act, 33 U.S.C. § 1367, by terminating her employment. The ARB affirmed the ALJ’s grant of summary decision. Respondent had moved for summary decision on the ground that the complaint was barred by the FWPCA’s 30-day statute of limitations. Complainant argued that the effective date of the termination began the 30-day clock, not the date of notice. The facts were not in dispute. Complainant filed her FWPCA complaint 46 days after notice of termination. The ARB stated:
In cases arising under environmental whistleblower statutes like WPCA, the limitation period for filing a complaint begins to run from the date the employee receives “final, definitive, and unequivocal notice” of an adverse employment decision. . . . The date that an employer communicates to the employee its intent to implement an adverse employment decision marks the occurrence of a violation and not the date that the employee experiences the consequences.
Slip op. at 3-4 (citations omitted).
On appeal, Complainant argued that the notice, dated April 7, 2016, was not definitive or unequivocal because she continued to be an employee after the notice. The ARB, however, agreed with the ALJ that “[t]he fact that Clifford’s termination did not become effective until April 27, 2016, does not extend the notice of termination to that date. Halpern v. XL Capital, Ltd., ARB No. 04-120, ALJ No. 2004-SOX-054 (ARB Aug. 31, 2005).” Slip op. at 4.
Complainant also argued that her discovery of Respondent’s allegedly retaliatory motive several days after the April 7 notice extended the start date. The ARB rejected this argument, stating: “The Supreme Court has repeatedly stated that ‘discovery of the injury, not discovery of the other elements of a claim, is what starts the clock.’ Rotella v. Wood, 528 U.S. 549, 555 (2000).” Id. The ARB said that “[h]ere, the injury is Clifford’s termination, and she became aware of that decision on April 7.” Id.
[Nuclear & Environmental Whistleblower Digest III A]
TIMELINESS OF FILING OF COMPLAINT; EQUITABLE ESTOPPEL; MISLEADING OF COMPLAINANT AS TO NATURE OF EMPLOYMENT ACTION – USE OF TERM “LAID-OFF” AND NOT MORE ASSERTIVE TERM SUCH AS “TERMINATION”; KEY IS UNEQUIVOCAL AND DEFINITIVE NOTICE OF TERMINATION OF EMPLOYMENT, AND NOT USE OF TERMINOLOGY SUCH AS “LAYOFF”; STATUTE OF LIMITATIONS WOULD NOT BE EFFECTIVE IF DEFENDANT HAD TO ACKNOWLEDGE THAT TERMINATION WAS FOR UNLAWFUL REASONS TO START THE CLOCK
In Clifford v. Conoco Phillips, ARB No. 2017-0064, ALJ No. 2017-WPC-00002 (ARB Sept. 6, 2019), Complainant alleged that her former employer, Conoco Phillips, violated the Federal Water Pollution Control Act, 33 U.S.C. § 1367, by terminating her employment. The ARB affirmed the ALJ’s grant of summary decision on the ground that the complaint was barred by the FWPCA’s 30-day statute of limitations. Respondent had issued a letter to Complainant stating:
As a result of recent business decisions, this letter constitutes notification regarding your layoff from the company. Your employment will end by layoff on April 27, 2016. Please review the “Leaving Company Summary” for information on your pay and participation in employee benefit plans.
Slip op. at 2, quoting from Exhibit to Respondent’s motion for summary decision. On appeal, Complainant argued that Respondent should be prohibited from asserting untimeliness because it misled her as to the reason for the termination, the phrase “lay off” connoting that the termination was not for performance reasons. Complainant also noted that the letter indicated that she was let go for “business reasons” and did not say “effective immediately.” Complainant cited Donovan v. Hahner, Foreman, and Harness, Inc., 736 F.2d 1421, 1427-28 (10th Cir. 1984), a Section 11(c) OSH Act case, in which the complainant had been initially told he was fired after he complained about scaffolding, but later told he was not fired but rather laid off until the scaffolding had been repaired—and the trial court applied equitable considerations to find the complaint timely because the complainant had been misled. The ARB distinguished Hahner, et al, on the ground that use of the term “’laid off’ was part of a statement the employee had received indicating that he was not fired” whereas here, Complainant was on notice when she received the April 7 notice of termination that her termination “was unequivocal and definitive notwithstanding the use of ‘layoff’ language or when Clifford suspected or discovered Conoco’s retaliatory motive.” Id. at 5. The ARB stated: “Statutes of limitation would not serve their purpose of promoting timely litigation if an employer, to start the limitations period, had to acknowledge that it fired an employee for unlawful reasons. Olson v. Mobil Oil Corp., 904 F.2d 198, 203 (4th Cir. 1990).” Id. at 5-6.
[Nuclear & Environmental Whistleblower Digest III A]
TIMELINESS OF FILING OF COMPLAINT; ABSENCE OF PREJUDICE IS NOT, BY ITSELF, GROUNDS FOR TOLLING LIMITATIONS PERIOD
In Clifford v. Conoco Phillips, ARB No. 2017-0064, ALJ No. 2017-WPC-00002 (ARB Sept. 6, 2019), Complainant alleged that her former employer, Conoco Phillips, violated the Federal Water Pollution Control Act, 33 U.S.C. § 1367, by terminating her employment. The ARB affirmed the ALJ’s grant of summary decision on the ground that the complaint was barred by the FWPCA’s 30-day statute of limitations. On appeal, Complainant argued that the ALJ had the discretion to waive the timeliness requirements, and failure to do so on the ground that Complainant had not demonstrated grounds for a waiver had been an abuse of that discretion. The Complainant’s argument was that Respondent would not be prejudiced by the late filing. The ARB found that the ALJ had not abused his discretion, noting that “[w]hile the absence of prejudice to the nonmoving party may be considered in determining whether to toll the limitations period, it alone is not sufficient justification for doing so. Prince v. Westinghouse Savannah River Co., ARB No. 10-079, ALJ No. 2006-ERA-001 (ARB Nov. 17, 2010); see also Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984).” Slip op. at 6.