Perez v. BNSF Railway Co., ARB Nos. 2017-0014 and -0040, ALJ No. 2014-FRS-00043 (ARB Sept. 24, 2020) (per curiam) (Decision and Order of Remand)

APPOINTMENTS CLAUSE CHALLENGE NOT TIMELY RAISED; WHETHER INVESTIGATION LEADING TO “NO-DISCIPLINE” LETTER IS ADVERSE EMPLOYMENT ACTION; ARB’S REJECTION OF “ INEXTRICABLY-RELATED” CAUSATION ANALYSIS

In Perez v. BNSF Railway Co., ARB Nos. 2017-0014 and -0040, ALJ No. 2014-FRS-00043 (ARB Sept. 24, 2020) (per curiam), the ARB found that Respondent’s appointments clause challenge to the appointment of ALJ was not timely raised. The ARB remanded for the ALJ to reconsider whether the employer’s internal investigation resulting in a no-discipline letter was an adverse employment action. Specifically, the ARB directed the ALJ on remand “to evaluate whether the investigation in this case was a bad faith investigation that constituted a form of harassment or whether it was a routine investigation, in good faith, to determine if a violation of BNSF’s policies occurred.” The case was also remanded because the ALJ had applied the “inextricably intertwined” analysis in finding that a causal relationship existed between protected activity and adverse action. This analysis had been overturned by the ARB in 2019 in Thorstensen v. BNSF Ry. Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052, slip op. at 10 (ARB Nov. 25, 2019).

McCarty v. Union Pacific Railroad Co., ARB No. 2018-0016, ALJ No. 2016-FRS-00066 (ARB Sept. 23, 2020) (Decision and Order)

FRSA 20109(c)(2) SAFE-HARBOR “FITNESS FOR DUTY” EXCEPTION IS ANALYZED UNDER PREPONDERANCE OF THE EVIDENCE STANDARD

In McCarty v. Union Pacific Railroad Co., ARB No. 2018-0016, ALJ No. 2016-FRS-00066 (ARB Sept. 23, 2020), Respondent prohibited Complainant from returning to his position as a Centralized Dispatching Center Electronic Technician because Complainant failed Respondent’s fitness for duty standards. The ARB noted that: “Section 20109(c)(2) expressly carves out a ‘safe-harbor exception’ for some unfavorable employment actions and provides that the employer does not violate the Act when it refuses to permit an employee to return to work following medical treatment if the refusal occurs pursuant to Federal Railroad Administration (FRA), or the carrier’s, medical standards for fitness of duty.” Slip op. at 5 (footnote omitted). The ARB determined “that the ALJ did not err in not applying the whistleblower framework and clear and convincing burden of proof to Section 20109(c)(2)’s safe-harbor exception.” Id,. at 6. The ARB explained: “In Ledure, we stated the ‘employer bears the burden of persuasion that the [safe harbor has] been met. Those elements include establishing the relevant standards for fitness for duty and how the employee has failed to meet them.’ Because we do not apply the whistleblower framework to the safe-harbor exception, the burden of persuasion remains at the default preponderance of the evidence.” Id,. (footnotes omitted). The ARB determined that in the instant case, substantial evidence supported the ALJ’s finding that the safe-harbor exception applied.

Sandra Lee Bart, ARB No. 2018-0004, ALJ No. 2017-TAE-00014 (ARB Sept. 22, 2020) (Decision and Order)

APPLICATION OF COLLATERAL ESTOPPEL BASED ON CRIMINAL CONVICTION TO H-2A DEBARMENT

In Sandra Lee Bart, ARB No. 2018-0004, ALJ No. 2017-TAE-00014 (ARB Sept. 22, 2020), the Wage and Hour Division concluded that Respondent should be debarred from the H-2A program for three years based on a conviction of three counts of conspiracy to commit fraud related to the program. Respondent appealed, and the WHD moved for summary decision. The ARB found that the ALJ did not abuse his discretion in denying Respondent’s request to place the Administrator’s motion for summary decision in abeyance pending appeal of Respondent’s conviction to the Court of Appeals because Respondent failed to address the legal criteria for a stay. Moreover, while the case was pending before the ARB, the Eighth Circuit denied Respondent’s appeal of the conviction, rendering moot Respondent’s appeal of the ALJ’s decision not to stay a ruling on the summary decision motion. The ARB affirmed the ALJ’s grant of summary decision, the WHD Acting Administrator having satisfied the criteria for collateral estoppel to apply to make the court’s criminal conviction a binding determination. The ARB wrote: “the ALJ . . . correctly applied the doctrine of collateral estoppel to Respondent’s only argument before him—that she had evidence to support her innocence. As stated by the ALJ, ‘[t]he issue of her guilt has already actually and necessarily been determined by a court of competent jurisdiction. Therefore, the Judgment finding the Respondent guilty of three counts of conspiracy is conclusive.’” Slip op. at 8 (quoting ALJ’s decision).

Elliott v. Tennessee Valley Authority, ARB No. 2018-0002, ALJ No. 2013-ERA-00006 (ARB Sept. 22, 2020) (Decision and Order)

CLEAR AND CONVINCING EVIDENCE; RESPONDENT WOULD HAVE DISHARGED COMPLAINANT IN ABSENCE OF PROTECED ACTIVITY WHERE HIS POSITION REQUIRED MAINTAINENCE OF UNESCORTED ACCESS AUTHORIZATION, AND COMPLAINANT HAD INCURRED A THIRD DUI

In Elliott v. Tennessee Valley Authority, ARB No. 2018-0002, ALJ No. 2013-ERA-00006 (ARB Sept. 22, 2020), Complainant’s employment with TVA was contingent upon his ability to maintain his unescorted access authorization (UAA) clearance. The ARB affirmed the ALJ’s conclusion that, even if Complainant engaged in ERA-protected activity, Respondent still would have terminated his employment after his third DUI.

Portis v. Ruan Transportation, ARB No. 2018-0001, ALJ No. 2017-FDA-00005 (ARB, Sept 22, 2020) (per curiam) (Decision and Order)

FDA EMPLOYEE PROTECTION COMPLAINT REQUIRES EMPLOYMENT RELATIONSHIP; THUS, NAMED CUSTOMERS OF COMPLAINANT’S EMPLOYER WERE PROPERLY DISMISSED AS PARTIES

In Portis v. Ruan Transportation, ARB No. 2018-0001, ALJ No. 2017-FDA-00005 (ARB, Sept 22, 2020) (per curiam), the ARB affirmed the ALJ’s finding that Atlas Logistics and Kroger were not proper parties to the action under employee protection provision of the Federal Food, Drug, and Cosmetic Act. The ARB noted that “[t]he plain language of the implementing regulations of the FSMA requires an employment relationship” and determined that “Ruan terminated the Complainant’s employment as his employer while Atlas and Kroger were customers of Ruan, not employers of Complainant.” The ARB also affirmed the ALJ’s finding that the complaint had not been timely filed.

Jordan v. DynCorp International, LLC, ARB No. 2019-0027, ALJ No. 2017-SOX-00055 (ARB Sept. 16, 2020) (per curiam) (Decision and Order)

ARB AFFIRMS ALJ’S IMPOSITION OF SANCTIONS IN SOX CASE; ALJ HAD ADMONISHED COMPLAINANT FOR MAINTAINING UNWARRANTED LEGAL CONTENTIONS, AND ORDERED PAYMENT TO RESPONDENT OF $1000 IN ATTORNEYS FEES

In Jordan v. DynCorp International, LLC, ARB No. 2019-0027, ALJ No. 2017-SOX-00055 (ARB Sept. 16, 2020) (per curiam), the ARB affirmed the ALJ’s order imposing sanctions on Complainant, including payment of $1000 in attorney’s fees. The ALJ had determined that such sanctions were necessary, and had admonished Complainant “against making legal contentions that are unwarranted by either existing law or by an argument for extending, modifying, or reversing existing law or for establishing new law.” Slip op. at 2 (footnote omitted).

Jordan v. DynCorp International, LLC, ARB No. 2018-0035, ALJ No. 2016-SOX-00042 (ARB Sept. 16, 2020) (per curiam) (Decision and Order)

DISMISSAL OF SOX COMPLAINT AFFIRMED WHERE THE COMPLAINT FAILED TO ADDRESS THE REQUIRED ELEMENTS OF A SOX CLAIM

In Jordan v. DynCorp International, LLC, ARB No. 2018-0035, ALJ No. 2016-SOX-00042 (ARB Sept. 16, 2020) (per curiam), the ARB affirmed the ALJ’s dismissal of Complainant’s SOX complaint because it failed to address the required elements of a SOX claim.

Budri v. FirstFleet Inc., ARB No. 2020-0065, ALJ No. 2020-STA-00108 (ARB Sept. 15, 2020) (per curiam) (Decision and Order)

APPOINTMENTS CLAUSE; ARB REJECTS COMPLAINANT’S CLAIM THAT ALJ HAD NOT BEEN VALIDLY APPOINTED WHERE THE SECRETARY HAD ALREADY RATIFIED THE ALJ’S APPOINTMENT, AND WHERE COMPLAINANT WAIVED THE APPOINTMENTS OBJECTION BY FAILING TO RAISE IT IN HIS PRIOR RELATED CASES; ARB PRESUMES VALIDITY OF THE SECRETARY’S RATIFICATION

The ARB denied Complainant’s petition for review in Budri v. FirstFleet, Inc., ARB No. 2020-0065, ALJ No. 2020-STA-00108 (ARB Sept. 15, 2020) (per curiam). This was Complainant’s sixth complaint filed against Respondent. The ARB had earlier denied review of the ALJ’s findings that the fifth complaint was barred by res judicata and issue preclusion, and was frivolous. See Budri v. Firstfleet, Inc., ARB No. 2020-0061, ALJ No. 2020-STA-00090 (ARB August 5, 2020). Complainant’s main argument before the ALJ and the ARB for the sixth complaint was that the ALJ had not been validly appointed under the Appointments Clause of the U.S. Constitution. The ARB rejected this contention, finding that the sixth case, and the prior cases, were filed and decided after the Secretary ratified the ALJ’s appointment on December 21, 2017. The ARB also found that Complainant waived the argument by not raising it earlier. The ARB further found that it did not have the authority to pass on the validity of the Secretary’s ratifications. The ARB stated that it viewed “the Secretary’s ratification of the appointments of the ALJs serving in the Department as of December 2017 as sufficient to satisfy the Appointments Clause. ” Slip op. at 4. In a footnote, the ARB cited Marbury v. Madison, 5 U.S. 137, 157 (1803) (the appointment of an officer need only be “evidenced by an open, unequivocal act”) and Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592, 604 (3d Cir. 2016) (agency action presumed valid under presumption of regularity).

Magers v. Seneca Re-Ad Industries, Inc., ARB No. 2018-0061, ALJ No. 2016-FLS-00003 (ARB Sept. 14, 2020) (per curiam) (Decision and Order)

FLSA DISABLED WORKERS EXCEPTION; ON REMAND ALJ PROPERLY ALLOWED ADDITIONAL EVIDENCE ON BACK WAGES FOR PERIOD IN WHICH PETITIONERS HAD NOT PREVIOUSLY INTRODUCED EVIDENCE BASED ON THE ASSUMPTION THAT THERE WAS A THREE-YEAR LIMITATIONS PERIOD UNDER THE PORTAL-TO-PORTAL ACT; ARB HAD RULED IN REMAND ORDER THAT THE LIMITATIONS PERIOD DID NOT APPLY; ALJ CORRECTLY DETERMINED ON REMAND THAT BACK WAGES SHOULD BE AWARDED FOR ENTIRE PERIOD IN WHICH RESPONDENT FAILED TO PAY MINIMUM WAGE REQUIRED BY THE FLSA

APPOINTMENTS CLAUSE CHALLENGE WAIVED WHERE IT WAS NOT RAISED WHILE THE CASE WAS PENDING BEFORE THE ALJ

In Magers v. Seneca Re-Ad Industries, Inc., ARB No. 2018-0061, ALJ No. 2016-FLS-00003 (ARB Sept. 14, 2020) (per curiam), the ARB had, in an earlier decision, affirmed the ALJ’s determination that Respondent violated the FLSA’s minimum wage provision because it was not entitled to employ certain employees under the FLSA’s disabled workers exception provision. The ARB remanded for the ALJ to recalculate damages. The ALJ issued a decision on remand, and Respondent appealed.

Respondent first argued that the ALJ was prohibited from awarding back pay for the period from the start of the employees’ employment until December 27, 2012. The ALJ, in the first decision, had not included damages for this period because the parties had assumed that the limitations period of the Portal-to-Portal Act applied, and the Petitioners had thus not introduced evidence for this earlier period. See Magers v. Seneca Re-Ad Industries, Inc., ALJ No. 2016-FLS-00003, slip op. at 3 (ALJ Aug. 1, 2018). The ARB agreed with the ALJ that its remand order “did not instruct the ALJ to exclude any periods of employment, but instead agreed with the ALJ’s conclusion that the back pay period was not limited by the Portal-to-Portal Act.” Slip op. at 5 (citing original remand order). The ARB agreed with the ALJ that none of the prior rulings on the cases determined that the violations occurred over a limited period of time, or that the petitioning employees should not be paid damages for all periods in which Respondent paid them less that the minimum wage in violation of the FLSA.

Respondent’s second argument was the ALJ erred by reopening the record to receive evidence for the calculation of back wages. The ARB rejected this argument, stating that ALJs have the discretion to reopen a record for the receipt of additional pertinent evidence, including on remand. The ARB determined that the ALJ did not abuse that discretion in this case because evidence on wages for the pre-December 28, 2012 period was pertinent and necessary for the ALJ to provide a ruling consistent with the remand order.

Respondent’s third argument was that the ALJ and ARB did not have authority to order payment of liquidated damages. The ARB found that it had addressed this issue in the earlier remand order and that ruling was final.

Respondent’s fourth argument was that the ALJ had not been properly appointed under the Appointments Clause of the U.S. Constitution. The ARB declined to address this issue, as it had not been raised at any point during the proceedings before the ALJ, and thus had been waived. In support of this ruling, the ARB cited decisions of the BRB in Kiyuna v. Matson Terminals, Inc., BRB No. 19-0103, 2019 WL 2865994 (BRB June 25, 2019) and Daugherty v. Consol. Coal Co., BRB No. 18-0341, 2019 WL 3775979 (BRB July 19, 2019).

Administrator, Wage and Hour Div. v. Ten West Cattle, Inc., ARB No. 2020-0059, ALJ No. 2018-TAE-00035 (ARB Sept. 14, 2020) (per curiam) (Decision and Order [denying interlocutory review])

INTERLOCUTORY APPEAL; SPLIT IN ALJ DECISIONS ON ISSUE OF COVERAGE OF J-1 VISA HOLDER UNDER H-2A PROGRAM IS NOT AN EXCEPTIONAL CIRCUMSTANCE WARRANTING INTERLOCUTORY REVIEW

INTERLOCUTORY APPEAL; COLLATERAL ORDER EXCEPTION FOUND NOT TO APPLY WHERE ALJ’S DETERMINATION ON PARTIAL SUMMARY DECISION WAS ONLY THAT J-1 VISA HOLDERS MAY, GENERALLY, BE ENGAGED IN CORRESPONDING EMPLOYMENT UNDER THE H-2A REGULATIONS; ALJ’S ORDER HAD NOT DETERMINED WHETHER RESPONDENT’S J-1 VISA HOLDERS WERE IN FACT ENGAGED IN CORRESPONDING EMPLOYMENT; QUESTIONS OF EMPLOYEE COVERAGE ARE MERITS ISSUES THAT ARE FULLY REVIEWABLE UPON APPEAL OF FINAL ALJ DECISION

In Administrator, Wage and Hour Div. v. Ten West Cattle, Inc., ARB No. 2020-0059, ALJ No. 2018-TAE-00035 (ARB Sept. 14, 2020) (per curiam), Respondent was an H-2A employer that also hosted J-1 visa holders participating in internships under the Exchange Visitor Program. The WHD charged Respondent with seven violations of the H-2A program’s requirements; Respondent requested an ALJ hearing; the parties filed cross motions for summary decision on whether a J-1 visa holder can be considered a non-H-2A visa holder who is engaged in “corresponding employment” as defined by the H-2A regulations. The ALJ granted partial summary decision in favor of the WHD, holding that it is possible for a J-1 visa holder to be engaged in corresponding employment for purposes of the H-2A Program. Respondent petitioned the ARB for a review.

The ARB first determined that an asserted need for the ARB to resolve a split in authority between ALJs on the issue of coverage did not constitute an exceptional circumstance warranting interlocutory review. The ARB stated that, consequently, to consider the appeal it would need to determine that the ALJ’s order fell within the collateral order exception. The ARB held that it did not.

    The Order addressed whether J-1 visa holders may, generally, be engaged in corresponding employment under the H-2A regulations and not whether Respondent’s J-1 visa holders were in fact engaged in corresponding employment. The question of whether J-1 visa holders may be engaged in corresponding employment is not separate from the merits of WHD’s claims against Respondent but is instead central to the case.

    Resolving the issue of whether the Respondent’s J-1 visa-holding employees are subject to the regulations governing H-2A workers requires specific findings of fact not before us. The ALJ held that it was premature to address whether those employees were engaged in corresponding employment because “the Administrator has objected to Respondent’s presentation of facts beyond those in the parties’ Stipulated Facts as uncontroverted given the lack of discovery in this matter” and “discovery is necessary for the development of facts that may be presented on the question of whether the J-1 visa holders employed by Respondent were, or were not, engaged in ‘corresponding employment.’”

    Questions of employee coverage are merits issues that are fully reviewable upon appeal of a final decision of the ALJ. In sum, Respondent has failed to either show that the Order falls within the collateral order exception or present exceptional circumstances which persuade the Board to consider the interlocutory appeal presented. We therefore DENY Respondent’s Petition for Review.

Slip op. at 3-4 (footnotes omitted).

Bondurant v. Southwest Airlines, Inc., ARB No. 2017-0050, ALJ No. 2013-AIR-00007 (ARB Sept. 2, 2020) (Decision and Order)

CONTRIBUTORY FACTOR CAUSATION; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDING THAT COMPLAINANT FAILED TO PROVE THAT HIS ALLEGED PROTECTED ACTIVITY CONTRIBUTED TO HIS TERMINATION WHERE (1) CREDIBLE TESTIMONY SHOWED THAT THE DECISION MAKERS DID NOT TAKE INTO ACCOUNT THE PROTECTED ACTIVITY, (2) THE PROTECTED ACTIVITY WAS NO MORE TEMPORALLY PROXIMATE THAN AN INVESTIGATION INTO WHETHER COMPLAINANT WAS IN VIOLATION OF A LAST CHANCE AGREEMENT, AND (3) COMPLAINANT DID NOT ESTABLISH PRETEXT AS MANAGEMENT HAD CLEARLY BEEN UNHAPPY WITH COMPLAINANT’S PERFORMANCE PRIOR TO THE PROTECTED ACTIVITY AND HAD WAITED UNTIL THE “LAST CHANCE” INVESTIGATION WAS OVER BEFORE MAKING A TERMINATION DECISION

In Bondurant v. Southwest Airlines, Inc., ARB No. 2017-0050, ALJ No. 2013-AIR-00007 (ARB Sept. 2, 2020), Complainant alleged that Southwest Airlines terminated his employment in response to complaints he made regarding violations of FAA regulations and standards. Complainant had been placed on a “Last Chance Agreement,” and thereafter reported alleged transport of hazardous material without proper notification of the FAA. About the same time, a manager had opened an investigation into whether Complainant was violating company travel policy and was not fostering a team atmosphere. Eventually, management concluded that Complainant had violated the Last Chance Agreement, and terminated his employment.

The ARB found that substantial evidence supported the ALJ’s finding that Complainant failed to prove that his alleged protected activity was a contributing factor to the termination decision. The ALJ credited testimony that management personnel with whom Complainant interacted regarding the alleged protected activity were not involved in the termination decision. In addition, the ARB noted the ALJ’s crediting of testimony that the subject of a report of hazardous materials transport never came up in the decision makers’ discussion of whether to terminate Complainant’s employment.

The ARB noted the ALJ’s findings that temporal proximity did not establish causation, and did not provide circumstantial evidence of causation. The ARB cited the ALJ’s finding that—the timing of the Last Chance Agreement, a complaint related to Complainant from another employee, and the manager’s investigation—were all as close in time to the termination as any alleged protected activity. The ARB also noted that the ALJ found a lack of pretext, as management had been unhappy with Complainant’s performance since at least the issuance of the Last Chance Agreement. The ARB also cited the ALJ’s finding that “[i]t was not until the end of the investigation and the presentation of the findings to upper management that Respondent made the decision to terminate Bondurant’s employment.”

McKinney v. Medpace Holdings, Inc., ARB No. 2020-0036, ALJ No. 2019-SOX-00019 (ARB Sept. 2, 2020) (Order of Dismissal)

The ARB dismissed Complainant’s appeal for failure to prosecute.