October 2019
Buie v. Spee-Dee Delivery Service, Inc., ARB No. 2019-0015, ALJ No. 2014-STA-00037 (ARB Oct. 31, 2019) (per curiam) (Final Decision and Order)
USDOL/OALJ Reporter
Casenote(s):
[STAA Digest XI]
TERMINOLOGY USED TO DESCRIBE DISPOSITION OF STAA COMPLAINT IN FAVOR OF RESPONDENT; UNDER THE REGULATIONS, FINDING THAT RESPONDENT HAD NOT VIOLATED THE LAW RESULTS IN “DENIAL” OF THE COMPLAINT; “DISMISSAL” OF THE COMPLAINT IS NOT USED BY THE REGULATIONSIn Buie v. Spee-Dee Delivery Service, Inc., ARB No. 2019-0015, ALJ No. 2014-STA-00037 (ARB Oct. 31, 2019) (per curiam), the ARB wrote:
We are cognizant of the fact that the ALJ’s order specifies that the complaint is “dismissed.” That being noted, 29 C.F.R. § 1978.109(d)(2) specifically provides that “[i]f the ALJ determines that the respondent has not violated the law, an order will be issued denying the complaint.” As such, we will use the terminology prescribed by regulation to describe the action below.
Slip op. at 2, n.2.
[STAA Digest V B 2 f]
PROTECTED ACTIVITY; COMPLAINANT FAILED UNDER FACTS OF THE CASE TO SHOW RESPONDENT SCHEDULED RUNS THAT WOULD REQUIRE SPEEDING WHERE SUPERVISOR HAD BEEN ABLE TO COMPLETE THE RUN WITHOUT SPEEDING AND RESPONDENT ENFORCED A POLICY AGAINST SPEEDINGIn Buie v. Spee-Dee Delivery Service, Inc., ARB No. 2019-0015, ALJ No. 2014-STA-00037 (ARB Oct. 31, 2019) (per curiam), Complainant alleged that he was discharged for refusing to speed, while Respondent contended that Complainant was suspended and then discharged for Complainant’s consistent inability to complete his route on time. The ARB affirmed that ALJ’s finding that Complainant did not engage in protected activity under the STAA’s “file a complaint” and “refusal to drive” provisions. The ARB noted the ALJ’s finding that Complainant had not refused to drive. The ARB found that that the ALJ properly relied on evidence that Complainant’s supervisor had repeatedly driven the route and returned within the time allotted, and lack of evidence of the need to speed to do so. The ALJ found no evidence corroborating Complainant’s testimony that a manager implied that Complainant should speed to complete the route.
The ARB also affirmed the ALJ’s determination that Complainant’s asserted belief that Respondent was violating a motor vehicle regulation, standard or order was not objectively reasonable where an experienced driver in Complainant’s circumstances would have known that Respondent had an explicit policy against speeding and enforced that policy, and that Respondent had put governors on its vehicles to prevent speeding. Given Respondent’s policy and actions, the ALJ found that it would not have made any sense for Respondent to then schedule a run that could only be completed by speeding, and again noted that the supervisor had been able to complete the run in a timely fashion.
[STAA Digest IV G]
CONTRIBUTING FACTOR CAUSATION; EVIDENCE THAT RESPONDENT TOOK NO DISCIPLINARY ACTION FOR YEARS DESPITE COMPLAINANT’S INABILTY TO COMPLETE ROUTE ON TIME, AND HAD EVEN SHORTENED THE ROUTE TO ACCOMMODATE HIM, WERE INCONSISTENT WITH A CLAIM THAT COMPLAINANT’S COMPLAINTS ABOUT BEING REQUIRED TO SPEED WERE A FACTOR IN SUSPENSION AND DISCHARGEIn Buie v. Spee-Dee Delivery Service, Inc., ARB No. 2019-0015, ALJ No. 2014-STA-00037 (ARB Oct. 31, 2019) (per curiam), the ARB affirmed the ALJ’s finding that Complainant had not engaged in protected activity, but also considered causation, assuming arguendo that protected activity had been proved. The ARB first found that the ALJ’s credibility determination—crediting Respondent’s manager’s testimony that he had no knowledge of Complainant’s complaints at the time of the decision to discharge Complainant—was supported by substantial evidence. The ARB further agreed with the ALJ that even if the manager knew of Complainant’s complaints about being pressured to speed, the evidence credibly showed that Respondent “did not take any disciplinary action against him for 2-3 years despite his inability to complete his route on time.” Slip op. at 6. Further, the ALJ determined that “Respondent even made his route shorter on two occasions to accommodate him” and found that “[i]t simply does not make sense that Complainant’s complaints about being required to speed’ could be ‘a factor, any factor’ in his suspension and termination.” Id.
[STAA Digest IV H]
AFFIRMATIVE DEFENSE; RECORD SHOWED LONG PERIOD OF REFRAINING FROM DISCIPLINING COMPLAINANT AND OF ATTEMPTING TO ACCOMMODATE COMPLAINANT SO THAT HE COULD TIMELY COMPLETE HIS ROUTEIn Buie v. Spee-Dee Delivery Service, Inc., ARB No. 2019-0015, ALJ No. 2014-STA-00037 (ARB Oct. 31, 2019) (per curiam), the ARB affirmed the ALJ’s finding that Respondent would have suspended and discharged Complainant for inability to complete runs in a timely manner even in the absence of Complainant’s complaints that he would have been required to speed. Performance reviews from 2009, until Complainant’s discharge in 2013 consistently noted problems with completing the route on time; Respondent had refrained from taking disciplinary action until 2013; Respondent frequently counseled Complainant regarding his late return times; and Respondent tried to accommodate Complainant twice by cutting down the size of his route and scheduling his last pick-ups earlier.
Cerny v. Triump Aerostructures-Vought Aircraft Division, ARB No. 2019-0025, ALJ No. 2016-AIR-00003 (ARB Oct. 31, 2019) (Final Decision and Order)
Casenote(s):
BRIEFING ON APPEAL; APPELLANT IS REQUIRED TO DEVELOP ARGUMENT WITH CITATION TO LAW AND AUTHORITY TO AVOID WAIVER OR FORFEITURE
In Cerny v. Triump Aerostructures-Vought Aircraft Division, ARB No. 2019-0025, ALJ No. 2016-AIR-00003 (ARB Oct. 31, 2019), Complainant filed a complaint alleging that Respondent retaliated against him in violation of AIR21’s whistleblower protection provisions for raising air transportation safety concerns. The ALJ found that Complainant had not engaged in protected activity on the four classes of actions alleged. On appeal, Complainant limited his briefing to only one of the instances of alleged protected activity, and only summarily objected to the ALJ’s findings on the other three classes. The ARB found that Complainant waived objections as to the three classes not briefed. The ARB stated:
Cerny wrote the following in his opening brief:
While Cerny strenuously disagrees with the determination that these acts did not constitute protected conduct under AIR 21, due to space constraints on briefing on appeal, this brief’s arguments are limited to the issue of whether the ALJ erred in not finding that Cerny’s refusal to make requested changes on his APU/Tailcone report constituted protected conduct.
Br. 2 n.1. Other than this general claim, Cerny’s brief did nor argue that the ALJ erred in finding that the other three categories did not meet the definition of protected activity. Further, Cerny did not assert and argue that those categories of alleged protected activity contributed to his termination. An appellant is required to develop argument, with citation to law and authority to avoid waiver or forfeiture. See Dev. Res., Inc., ARB No. 02-046, slip op. at 4 (ARB Apr. 11, 2002) citing Tolbert v. Queens Coll., 242 F.3d 58, 75-76 (2d Cir. 2001) (noting that in the Federal Courts of Appeals, it is a “settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived”); United States v. Hayter Oil Co., 51 F.3d 1265, 1269 (6th Cir. 1995) (“It is not our function to craft an appellant’s arguments.”} United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal ’argument,’ really nothing more than an assertion, does not preserve a claim [for appellate review].”).
Slip op. at 7, n.2.
PROTECTED ACTIVITY; TO CONSTITUTE PROTECTED ACTIVITY, COMPLAINANT NEED NOT ESTABLISH AN ACTUAL VIOLATION OF A FEDERAL RULE OR REGLUATION RELATED TO AIR SAFETY, BUT MUST HAVE BOTH A SUBJECTIVELY AND OBJECTIVELY REASONABLE BELIEF THAT A VIOATION OCCURRED OR WAS ABOUT TO OCCUR
In Cerny v. Triump Aerostructures-Vought Aircraft Division, ARB No. 2019-0025, ALJ No. 2016-AIR-00003 (ARB Oct. 31, 2019), Complainant filed a complaint alleging that Respondent retaliated against him in violation of AIR21’s whistleblower protection provisions for raising air transportation safety concerns. On appeal, the only instance of protected activity preserved for ARB review concerned an engineering report submitted by Complainant. The lead engineer had returned the report to Complainant with a heavy set of redlines and a directive to make changes. Complainant made some changes, but submitted a checklist of changes he refused to make.
On appeal, the Complainant argued that the ALJ erred in finding that—although Complainant had a subjective belief that the change refusals were based on engineering science and Respondent’s manual—it was not an objectively reasonable belief that Complainant’s checklist of declined changes was protected activity. Complainant argued that that he need not show that a law was actually violated, but need only prove that he had a reasonable belief that his report related to Air carrier safety. Complainant also argued that the ALJ failed to take into account that another person had reviewed the report after Complainant’s termination and did not have objections to Complainant’s work. Complainant further challenged the ALJ’s credibility finding concerning the lead engineer.
The ARB, however, affirmed the ALJ’s ALJ findings on protected activity. The ARB acknowledged that Complainant need not prove an actual violation to engage in protected activity under AIR 21, but only a reasonable belief that a violation of a federal rule or regulation related to air safety occurred or was about to occur. The ARB stated that nonetheless “an employee’s reasonable belief is comprised of both a subjective and an objective component….” Slip op. at 8. The ARB found that the ALJ’s findings were supported by substantial evidence. Testimony showed that the lead engineer had another engineer review Complainant’s report, and that engineer provided negative feedback concerning Complainant’s refusal checklist. In addition, Complainant had not been proficient in using analytical software and there were issues throughout the report.
CONTRIBUTORY FACTOR CAUSATION; EVIDENCE THAT DECISION TO TERMINATE COMPLAINANT’S EMPLOYMENT WAS MADE PRIOR TO PROTECTED ACTIVITY
In Cerny v. Triump Aerostructures-Vought Aircraft Division, ARB No. 2019-0025, ALJ No. 2016-AIR-00003 (ARB Oct. 31, 2019), Complainant filed a complaint alleging that Respondent retaliated against him in violation of AIR21’s whistleblower protection provisions for raising air transportation safety concerns. The ARB affirmed the ALJ’s finding that Complainant had not engaged in protected activity when he filed a checklist of changes he refused to make to an engineering report he had submitted.
The ARB also found that, even if submission of the checklist was protected activity, substantial evidence supported the ALJ’s finding that Complainant was fired for inability or unwillingness to use computer programs and inability to produce useful work, and that the refusal checklist had not contributed to the decision to terminate Complainant’s employment—the termination decision having been made prior to Complainant’s submission of the checklist. Although Complainant argued on appeal that certain emails and a draft termination document indicating that management was preparing to fire Complainant prior to submission of the refusal checklist were forgeries due to certain irregularities, the ARB found that substantial evidence supported the ALJ’s determination finding that these arguments were not compelling, and that there was another email that independently confirmed the prior decision to terminate Complainant’s employment
Davenport v. LIT Trucking Services Inc., ARB No. 2017-0070, ALJ No. 2016-STA-00015 (ARB Oct. 31, 2019) (per curiam) (Decision and Order Remanding for Supplemental Finding of Fact)
Casenote(s):
The ARB remanded for a supplementary findings by an ALJ on Complainant’s blacklisting claim where the original ALJ did not address blacklisting.
Hoptman v. Health Net of California, ARB No. 2017-0052, ALJ No. 2017-SOX-00013 (ARB Oct. 31, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
PROTECTED ACTIVITY; “ABOUT TO FILE” PROVISION OF SOX PROTECTED ACTIVITY IS NOT ESTABLISHED BY COMMUNICATIONS THAT WERE TOO ATTENUATED AND CONFLATED WITH OTHER NON-SOX PROTECTED CONDUCT TO CONVEY TO A REASONABLE PERSON THAT COMPLAINANT WAS ABOUT TO FILE A COMPLAINT PROTECTED UNDER SOX
In Hoptman v. Health Net of California, ARB No. 2017-0052, ALJ No. 2017-SOX-00013 (ARB Oct. 31, 2019) (per curiam), Complainant was a claims representative for Respondent. He began communicating via text messages with a plan member (“V.M.”) on a personal investigation into his belief that Respondent was making systematic overpayments. Complainant asked the plan member to fill out a HIPAA release and suggested that he would share money with her if she would help him with his case. Following Complainant’s suggestions, the plan member filed a complaint about overpayments with California Department of Managed Health Care (“DMHC”). The plan member informed DMHC about the texts with Complainant. DMHC shared that information with Respondent, which then suspended and later terminated Complainant for soliciting assistance and possible financial assistance from clients, engaging in private communications with clients on a personal device, misleading a client to sign a HIPAA form for Complainant’s personal use, and offering to share a reward with the plan member. In the meantime, Complainant in a meeting with a senior manager referred to an online article about Respondent owing back taxes, and indicated that Complainant had a complaint in the works and that Respondent would get into a lot of trouble. Complainant was not specific about what type of complaint he intended to file.
Complainant filed a SOX complaint, and the ALJ granted summary decision in favor of Respondent based on Complainant’s failure to identify a genuine issue of material fact that he engaged in protected activity. On appeal, Complainant argued that the text messages revealed that he was “about to file” a complaint with a federal agency, that his conversation with the manager “hinted” that he was about to file a complaint, and that Respondent later obtained the text messages and should have known that he was about to file a complaint with a federal agency that would constitute protected activity under SOX.
The ARB, however, affirmed the ALJ’s grant of summary decision:
Upon review of the ALJ’s Order, we conclude that the ALJ’s Order is a well-reasoned decision based on the undisputed facts and the applicable law. The ALJ properly concluded that Complainant failed to establish a genuine issue of material fact that he had engaged in protected activity under SOX. It is undisputed that Hoptman did not provide information to one of the three statutory entities [listed in 18 U.S.C. § 1515A(a)(2)], nor did he demonstrate a genuine issue of material fact that his activities “cause[d] information to be provided” to one of the three entities through his texts to V.M. Tides v. The Boeing Co., 644 F.3d 8090 (9th Cir. 2011). Hoptman’s texts to V.M. were deliberately concealed from Health Net and inadvertently reached Health Net through V.M’s and DMHC’s actions; Complainant admitted that he was “quite surprised” that V.M. shared his texts with DMHC. … Finally, the ALJ correctly concluded that Hoptman’s communications with the manager on January 25 did not create a genuine issue of fact that he was “about to file” a complaint because a manager would not be able to reasonably ascertain SOX-protected content from Hoptman’s summary of an online article’s content regarding back taxes owed and his references to an undefined complaint “in the works.” Health Net’s later possession of these texts did not, in context and when considered with other communications, establish a genuine issue of material fact as to whether Hoptman had engaged in protected activity. We agree that Complainant’s communications to V.M. and to the Health Net manager were too attenuated and conflated with other non-SOX protected conduct to convey to a reasonable person that he was about to file a complaint protected under SOX.
Slip op. at 6 (citation to ALJ decision omitted) (citation to Tides probably should be to 644 F.3d 809, 815).
Seuring v. Delta Airlines, Inc., ARB No. 2019-0082, ALJ No. 2018-AIR-00033 (ARB Oct. 30, 2019) (Order Dismissing Complainant’s Petition for Review)
Casenote(s):
TIMELINESS OF PETITION FOR REVIEW; FAILURE TO FILE TIMELY PETITION IDENTIFYING OBJECTIONS TO ALJ DECISION AFTER BEING GRANTED AN EXTENSION; MERE SEARCH FOR LEGAL REPRESENTATION FOUND TO BE INSUFFICIENT EXPLANATION
In Seuring v. Delta Airlines, Inc., ARB No. 2019-0082, ALJ No. 2018-AIR-00033 (ARB Oct. 30, 2019), Complainant had been granted an extension of time to file a Petition for Review, but warned that he needed to specifically identify the findings, conclusions or orders to which he was objecting, and that failure to timely comply with the order granting an extension would result in dismissal of the petition for review. Complainant missed the deadline by one day, offering no explanation other than an ongoing search for counsel. The ARB waited an additional 18 days, but having received no notice of appearance by counsel or an explanation for the status of a search for counsel, the ARB dismissed the petition as untimely.
Tran v. Southern California Edison Co., ARB No. 2018-0024, ALJ No. 2017-ERA-00008 (ARB Oct. 24, 2019) (per curiam) (Final Decision and Order)
Casenote(s):
[Nuclear and Environmental Whistleblower Digest III C 1]
TIMELINESS OF ERA COMPLAINT; WHERE COMPLAINANT’S REQUEST TO CORRECT DISABILITY BENEFITS WAS CONSIDERED AND REJECTED IN 2004, COMPLAINANT’S RENEWED REQUEST TO CORRECT THE BENEFITS IN 2016 DID NOT RAISE A NEW CLAIM UNDER THE ERAJURISDICTION; ASPECT OF ERA WHISTLEBLOWER COMPLAINT ABOUT THE MERITS OF WHETHER DISABILITY BENEFITS WERE PROPERLY CALCULATED WAS NOT WITHIN DOL’S JURISDICTION TO CONSIDER
In Tran v. Southern California Edison Co., ARB No. 2018-0024, ALJ No. 2017-ERA-00008 (ARB Oct. 24, 2019) (per curiam), Complainant left work in 2003 receiving disability benefits under a plant administered by a contractor for Defendant. Complainant disputed the benefit calculation and filed an appeal with the Benefits Committee. The appeal was denied in 2004 and Complainant was informed of his right to bring an action under ERISA. In 2016, Complainant send letters to Defendant’s CEO concerning the calculation of benefits. In the second letter, he contended that the calculation was lower than he believed he was entitled to in retaliation for reporting data falsification that resulted in release of radiation waste into the ocean. Defendant replied to both letters stating that the matter would not be reopened. Complainant filed an ERA whistleblower claim with OSHA, which denied it as untimely, as did the ALJ. On appeal, the ARB affirmed the ALJ’s decision, stating:
Contrary to Tran’s contention on appeal, requesting in 2016 a correction of his disability benefits did not raise a new claim under the ERA. This request was considered and rejected 12 years previously and his alleged protected activity occurred in 2002·2003. As the ALJ correctly found. Tran should have filed a complaint under the ERA alleging whistleblower protection within 180 days of the June 2. 2004 letter denying Tran’s request to calculate long-term disability benefits to award him 70 percent rather than 50 percent of his salary. Moreover, Tran did not raise the issue of reporting data falsification as possible protected activity until December 1, 2016, long after he had been denied a recalculation of benefits. Thus, we affirm the AL.J’s conclusion that the claim filed on July 6, 2017, was untimely.
Slip op. at 4 (footnote omitted). The ARB also affirmed the ALJ’s determination that the merits of the claim for benefits under Defendant’s welfare benefit plan was not within OALJ’s jurisdiction to consider.
Kelly v. State of Alabama Public Service Commission, ARB No. 2020-0009, ALJ No. 2019-ERA-00013 (ARB Oct. 23, 2019) (Final Decision and Order Denying Petition for Review)
Casenote(s):
ARB DECLINES REVIEW OF ALJ’S SUA SPONTE GRANT OF SUMMARY DECISION WHERE COMPLAINANT’S PETITION FOR ARB REVIEW FAILED TO ADDRESS ALJ’S FINDINGS THAT COMPLAINTS WERE NOT TIMELY AND THAT HE LACKED JURISDICTION TO CONDUCT A HEARING ON AN OSH ACT SECTION 11(c) COMPLAINT
In Kelly v. State of Alabama Public Service Commission, ARB No. 2020-0009, ALJ No. 2019-ERA-00013 (ARB Oct. 23, 2019), Complainant filed with OSHA multiple complaints under various whistleblower statutes, such as the ERA, SOX and OSH Act, § 11(c). OSHA dismissed the complaints. The ALJ, sua sponte, dismissed the complaints within his jurisdiction for lack of timeliness and failure of Complainant to allege facts justifying equitable tolling. The ALJ dismissed the § 11(c) complaint for lack of jurisdiction. The ARB denied Complainant’s petition for review of the ALJ’s decision, finding no explanation from Complainant as to the untimeliness the complaints, and no arguments from Complainant as to the jurisdictional problems with his complaint. The ARB took into consideration that Complainant was self-represented, but also noted that he was an experienced litigant, having filed over 20 similar complaints with DOL since 2009. Under these circumstances, and in light of the ALJ’s well-reasoned decision, the ARB declined review and stated that the ALJ’s decision is the final agency action in the matter.