Wong v. Sumitomo Mitsui Banking, ARB No. 2018-0073, ALJ No. 2016-SOX-00005 (ARB Oct. 26, 2020) (per curiam) (Decision and Order)

PROTECTED ACTIVITY UNDER SOX; SUBJECTIVE AND REASONABLE BELIEF STANDARD; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDINGS THAT COMPLAINANT’S CONCERNS REGARDING CERTAIN DIRECTIONS BY SUPERVISORS AND OTHER INCIDENTS WERE NOT GROUNDED IN A SUBJECTIVE BELIEF BY COMPLAINANT OF A SOX VIOLATION AT THE TIME OF THE RAISING OF THE CONCERNS—AND/OR—AN OBJECTIVELY REASONABLE BELIEF OF SUCH

PROTECTED ACTIVITY UNDER SOX; SUBJECTIVE AND REASONABLE BELIEF STANDARD; WHILE AN EMPLOYEE’S REGULAR DUTIES CAN BE PROTECTED ACTIVITY, UNDER THE FACTS OF THE CASE, MERE QUALITY CONTROL WORK FOUND INSUFFICIENT TO SHOW A SUBJECTIVE/OBJECTIVELY REASONABLE BELIEF THAT RESPONDENT WAS VIOLATING SOX

In Wong v. Sumitomo Mitsui Banking, ARB No. 2018-0073, ALJ No. 2016-SOX-00005 (ARB Oct. 26, 2020) (per curiam), Complainant’s job included reviewing bank ledgers and other documents, doing quality checks for consistency and accuracy, and completing reports and other financial tasks supporting Respondent’s banking operations. He filed a SOX complaint alleging that Respondent retaliated against him when he was placed on a Performance Enhancement Plan, given a negative progress report, and eventually fired. The ARB affirmed the ALJ’s holding that the five instances cited by Complainant as protected activity were not grounded in a subjective or objectively reasonable belief by Complainant that Respondent was engaging in unlawful activity protected by SOX. The ARB summarized the law defining protected activity under SOX:

   Protected activity under SOX is limited to six enumerated categories. It prohibits an employer from retaliating against an employee who complains about conduct that the employee reasonably believes constitutes a violation of 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire, radio, TV fraud), 1344 (bank fraud), or 1348(securities fraud), any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders. Violations of company policy, without more, are not protected disclosures under SOX. A complainant need not establish the various elements of securities fraud to prevail.

   The Board has articulated the concept of “reasonable belief” in a SOX violation as a two prong test. First, a complainant must have a subjective belief that the complained of conduct constitutes a violation of relevant law, and, second, that belief must be objectively reasonable. Thus, to engage in activity or conduct that SOX protects, a complainant must actually believe that the employer was in violation of a covered statute, and that belief must be reasonable for an individual in his circumstances with his training and experience.

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

In the instant case, the ARB found that substantial evidence supported the ALJ’s finding that Complainant did not establish that he engaged in protected activity when:

(1) Complainant did not follow his supervisor’s instructions in regard to reversing an adjustment related to a past due account, where Complainant testified that he did so based on a company procedural manual and was reluctant to call the supervisor’s instruction unlawful;

(2) Complainant reported a discrepancy in a ledger and refused to record the discrepancy in a different book as instructed—even after a meeting with the supervisor and department head in which they explained why the different book recording was appropriate—where Complainant testified that “he was not thinking about bank or securities fraud or the company’s stock price at the time he made the disclosure.” Id. at 5 (footnote omitted);

(3) Complainant refused to make an adjustment when there were inconsistent dates on paperwork accompanying reimbursement checks from employees who charged personal expenses on company issued credit cards, where Complainant’s belief that this was unlawful was formed only after speaking with an attorney after having been fired;

(4) Complainant discovered a balance discrepancy, known as a break, between two of the Respondent’s software systems, and suspected that the purpose was to earn multiple commissions for the same deal. An internal review revealed the cause of the discrepancy, and the record indicated that Respondent planned to check for this type of error in the future. The ARB stated:

   The ALJ concluded that this was not a protected disclosure because Complainant was engaged in quality control, rather than identifying fraud covered under SOX. The ALJ held that this was not an objectively reasonable belief because Complainant came to the conclusion that the other department engaged in trickery based on one break between ledgers. She further held that Complainant failed to show how this break was covered by SOX, as he testified that it was “wrong, not unlawful.” While an employee’s regular duties can be protected activity, the ALJ’s conclusion that this was not protected activity is supported by substantial evidence.

Id. at 6.

(5) Complainant related incidents with colleagues that he believed were intended as harassment, but never argued that they related to the company’s financial condition. The ALJ held that this was not protected activity because Complainant failed to allege that there was any negative financial effect on the Respondent. The ALJ also held that Complainant lacked a subjective belief that he had engaged in protected activity.

Leckner v. General Dynamics Information, ARB No. 2020-0028, ALJ No. 2019-SOX-00028 (ARB Oct. 22, 2020) (Decision and Order)

[Nuclear & Environmental Digest III B 3]
[Nuclear & Environmental Digest VIII B 2 b]
TIMELINESS OF ENVIRONMENTAL ACT WHISTLEBLOWER CLAIMS; 30-DAY LIMITATIONS PERIOD; ARB DECLINES TO CONSIDER NEWLY PRESENTED EVIDENCE WHERE COMPLAINANT DID NOT EXPLAIN WHY IT COULD NOT HAVE BEEN PRESENTED WHILE THE CASE WAS BEFORE THE ALJ

In Leckner v. General Dynamics Information, ARB No. 2020-0028, ALJ No. 2019-SOX-00028 (ARB Oct. 22, 2020), Complainant filed a SOX retaliation complaint. He then amended his complaint to also allege retaliation under the Clean Air Act; Comprehensive Environmental Response, Compensation, and Liability Act; Solid Waste Disposal Act; Toxic Substances Control Act; and Federal Water Pollution Control Act (collectively the “Environmental Acts”), and the Energy Reorganization Act. The ARB affirmed the ALJ’s grant of summary decision dismissing the Environmental Act claims as untimely. The ARB noted that Complainant filed his complaint more than 30 days after he was notified of his discharge, and consequently the Environmental Act claims were not timely.

Complainant, who was proceeding as a self-represented litigant before the ARB, presented new evidence on the question. The ARB, however, declined to consider that new evidence:

Leckner was represented by counsel before the ALJ but did not present any exhibits in responding to Respondents’ Motions for Summary Decision. Now appearing pro se before the Board, Leckner moves to present exhibits that he contends establish the timeliness of his complaint as well as coverage under the ERA and SOX. However, he does not explain why he was unable to present these exhibits (in contrast to those he asserts were requested pursuant to FOIA) to the ALJ. We therefore will not consider this new evidence on appeal and those motions are denied. See, e.g., Aityahia v. Air Line Pilots Assoc., ARB No. 2019-0037, ALJ No. 2018-AIR-00042, slip op. at 3, n.2 (ARB May 19, 2020).

Slip op. at 5, n.10.

PROTECTED ACTIVITY UNDER SOX; CONCERNS RAISED BY COMPLAINANT ABOUT CONTRACTOR NOT PROVIDING HIM ACCESS TO RESPOSITORY OF COMPUTER CODE CHANGES, AND LACK OF COMPLETE TRANSITION FROM PRIOR CONTRACTOR, WERE NOT SHOWN TO BE OBJECTIVELY REASONABLE BELIEF OF VIOLATIONS OF LAWS ENUMERATED IN SOX § 806

In Leckner v. General Dynamics Information, ARB No. 2020-0028, ALJ No. 2019-SOX-00028 (ARB Oct. 22, 2020), Complainant filed a SOX complaint alleging that Respondents retaliated against him for complaining that “his lack of access to the repository [of source code changes on a project Complainant was working on] was a cybersecurity risk that caused a waste of federal funds, and the failure to complete a formal transition allowed a former contractor to retain access to the project.” Slip op. at 3. The ARB affirmed the ALJ’s grant of summary decision on the ground that Complainant had not engaged in SOX protected activity. The ARB found that the concerns raised by Complainant were about computer software, and that there was “no evidence that he had an objectively reasonable belief that Respondents violated any SEC rule or regulation or otherwise engaged in securities fraud when he communicated his concerns about computer software. And he failed to set forth any regulation, rule, or Federal law that an objectively reasonable person would think the Respondents violated.” Id. at 7.

Del Signore v. Nokia, ARB No. 2020-0052, ALJ No. 2019-CFP-00001 (ARB Oct. 21, 2020) (Order of Dismissal)

The ARB dismissed the Consumer Fraud Protection Act case before it on appeal from the ALJ’s decision because Complainant kicked-out the case to district court.

LaQuey v. UnitedHealth Group, Inc., ARB No. 2017-0060, ALJ Nos. 2016-SOX-00002 (ARB Oct. 9, 2020) (Decision and Order)

PROTECTED ACTIVITY; ALTHOUGH REPORTING VIOLATIONS OF INTERNAL POLICIES AND CONTROLS CAN BE PROTECTED ACTIVITY UNDER SOX, A COMPLAINANT MUST SHOW HOW HIS PARTICULAR REPORTS CONCERNED INTERNAL CONTROLS PROTECTED UNDER SOX; OBJECTIVE BELIEF ELEMENT NOT ESTABLISHED WHERE COMPLAINANT FAILED TO SHOW THAT REPORTING RELATES TO AN ADVERSE IMPACT ON RESPONDENT’S SHAREHOLDERS OR ITS FINANCIAL CONDITION, AND WHERE ISSUES RAISED WERE NOT IN THEMSELVES MAIL, WIRE, RADIO, TV, OR BANK FRAUD — AND HAD NO BEARING ON FINANCIAL MATTERS

In LaQuey v. UnitedHealth Group, Inc., ARB No. 2017-0060, ALJ Nos. 2016-SOX-00002 (ARB Oct. 9, 2020), Complainant alleged that Respondent violated SOX Section 806 when it placed him on a corrective action plan and subsequently terminated his employment. Complainant alleged that he engaged in protected activity when he informed his manager and supervisor of his concern that there were not enough processes and process management resources within a “LaunchPad” program he was working on for order intake; and when he told his project manager on a “Gateway” project that employees should not put untested computer code into production. The ALJ found that this was not protected activity.

On appeal, Complainant argued that the courts and other ALJs had found that SOX protected activity includes reporting violations of internal policies and controls. The ARB, however, found that Complainant failed to support this argument with evidence or material from the record to show how his activity raised complaints concerning internal controls protected by SOX. Although the ARB noted that pro se litigants are entitled to some leeway, it also noted that they must make legal arguments and support those arguments with material from the record.

In the instant case, the ARB found that Complainant had not met the objective belief element of protected activity:

   Even if Complainant had demonstrated a subjective belief that his reports were protected by SOX, the record contains no evidence showing that he had an objective reasonable belief that he engaged in protected activity. During Complainant’s tenure with Respondent, he alleged that he engaged in protected activity on two separate occasions. First, Complainant alleged that he informed Johnson and Bornholdt that there were not enough processes and process management resources within the LaunchPad program. Second, Complainant alleged that he told Blenkush that employees should not put untested computer code into production on the Gateway project. The Complainant has failed to show how his reporting concerning on the LaunchPad program or the Gateway project would have an adverse effect on Respondent’s shareholders or its financial condition. Complainant’s issues with Launchpad and Gateway are not in themselves mail, wire, radio, TV, or bank fraud and have no bearing on financial matters. Complainant has failed to develop a complaint concerning a reasonable belief of a violation of a rule or regulation of the SEC.

Slip op. at 14.

APPOINTMENTS CLAUSE CHALLENGE FORFEITED WHERE IT HAD NOT BEEN RAISED BEFORE THE ALJ, IN THE PETITION FOR ARB REVIEW, OR IN THE INITIAL BRIEF BEFORE THE ARB

In LaQuey v. UnitedHealth Group, Inc., ARB No. 2017-0060, ALJ Nos. 2016-SOX-00002 (ARB Oct. 9, 2020), the ALJ issued a Decision and Order dismissing Complainant’s SOX complaint on July 7, 2017, and the ARB received Complainant’s Petition for Review on July 21, 2017. Complainant filed a Motion to Vacate on May 29, 2020, claiming that he was entitled to a new hearing before a different ALJ under the U.S. Supreme Court’s decision in Lucia v. S.E.C. because the ALJ was not properly appointed. The ARB denied the motion, finding that the issue had been forfeited. The ARB found that all of the information needed to challenge the ALJ’s appointment was available prior to the issuance of the ALJ’s decision. The ARB noted that this issue had been raised by the Supreme Court in Freytag v. Comm’r of Internal Rev. in 1991. The ARB also noted that “it is clear that Complainant had inquiry notice as early as December 2017 when the Secretary of Labor ‘ratified’ the appointment of its administrative law judges. Yet, Complainant did not file his Motion to Vacate until three years later.” Slip op. at 9. The ARB thus held that Complainant’s challenge had not been raised in a timely manner “as it was not raised before the ALJ, in the petition for review, or in the initial brief before the ARB.” Id.

ALJ DID NOT ABUSE HIS DISCRETION IN LIMITING ADDITIONAL DISCOVERY WHERE PARTIES HAD ENGAGED IN SUBSTANTIALLY SIMILAR DISCOVERY IN ARBITRATION PROCEEDING; SOME DISCOVERY WAS PERMITTED; AND COMPLAINANT HAD LEAVE TO SEEK PERMISISION TO ENGAGE IN ADDITIONAL DISCOVERY

In LaQuey v. UnitedHealth Group, Inc., ARB No. 2017-0060, ALJ Nos. 2016-SOX-00002 (ARB Oct. 9, 2020), while Complainant’s SOX Section 806 complaint was pending before the presiding ALJ, Complainant commenced an arbitration proceeding challenging his termination before the American Arbitration Association (AAA), including a claim of violation of a state whistleblower protection statute. Extensive discovery occurred during the AAA proceeding. Following the arbitrator’s decision, the DOL ALJ limited discovery because of the substantial similarity between the AAA and SOX cases. The ALJ permitted use of depositions from the AAA case, required Respondent to produce documents, denied Complainant’s request to take additional oral depositions, and required Complainant to seek leave to take up to three written depositions and/or request additional documents from Respondent. On appeal to the ARB, Complainant argued that the ALJ illegally precluded discovery. The ARB was not persuaded that the ALJ abused his discretion to limit the scope of discovery. The ARB first noted that 29 C.F.R. § 18.51(b)(4) mandates that the judge limit the frequency or extent of discovery when certain circumstances so mandate. Here, the ARB noted that there had been substantial discovery in the AAA case; that the ALJ did not deny all of Complainant’s requests; and the ALJ gave Complainant leave to seek up to three additional written depositions and/or request production of documents from Respondent — an option Complainant did not avail himself of.

ALJ DID NOT ABUSE HIS DISCRETION BY ASKING COMPLAINANT QUESTIONS DURING EVIDENTIARY HEARING

In LaQuey v. UnitedHealth Group, Inc., ARB No. 2017-0060, ALJ Nos. 2016-SOX-00002 (ARB Oct. 9, 2020), Complainant contended on appeal that the ALJ had disrupted his presentation and caused him anxiety by asking questions during the SOX Section 806 hearing. The ARB was not persuaded by this argument:

Complainant’s blanket argument that the ALJ’s questions were prejudicial and severely impacted him throughout the hearing fails to address how the ALJ abused his discretion, fails to identify which questions were prejudicial, and fails to cite precedent addressing this concern. Moreover, the ALJ gave Complainant the opportunity to present thirty minutes of additional uninterrupted testimony at the end of the hearing—an uncommon benefit that most litigants do not receive before the OALJ or other proceedings. Accordingly, we find that the OALJ hearing was not prejudicial to Complainant and that the ALJ did not abuse his discretion by asking Complainant questions during the hearing.

Slip op. at 11.

Brown v. Norfolk Southern Railway Co., ARB No. 2020-0066, ALJ No. 2018-FRS-00112 (ARB Oct. 7, 2020) (Order of Dismissal)

Complainant moved to dismiss his appeal and the complaint, explaining that he no longer wished to pursue an appeal of the ALJ’s decision denying the complaint. The ARB thus dismissed the case.

Nieman v. Southeastern Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA-00021 (Oct. 5, 2020) (per curiam) (Decision and Order)

LCA RETALIATION COMPLAINT; SETTLEMENT OF STATE COURT PROCEEDING – ONE CLAIM OF WHICH MIRRORED THE LCA RETALIATION COMPLAINT FILED WITH THE WAGE AND HOUR DIVISION – FOUND NOT TO BAR DOL PROCEEDING WHERE THE SETTLEMENT’S RELEASE WAS SPECIFIC TO THE STATE LAW CLAIMS AND WAS NOT A GENERAL RELEASE AND DID NOT REFER TO THE ADMINISTRATIVE COMPLAINT; RES JUDICATA DID NOT APPLY BECAUSE IMMIGRATION AND NATIONALITY ACT RETALIATION CLAIMS ARE ASSIGNED TO THE JURISDICTION OF THE SECRETARY OF LABOR UNDER 18 U.S.C. § 1182(n)(2)(C)(iv), AND THE STATE COURT WOULD NOT HAVE HAD JURISDICTION; ISSUE PRECLUSION DID NOT APPLY BECAUSE IT HAD NOT BEEN SHOWN THAT INA CLAIM WAS ACTUALLY LITIGATED IN THE STATE COURT ACTION

In Nieman v. Southeastern Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA-00021 (Oct. 5, 2020) (per curiam), Complainant filed a complaint with the Wage and Hour Division under the employee protection provision of the Immigration and Nationality Act (INA), 18 U.S.C. § 1182(n)(2)(C)(iv); 20 C.F.R. § 655.801. Complainant asserted that Respondent retaliated against him for filing complaints with the DOL concerning Respondent’s H-1B nonimmigrant employment practices. While the case was pending before the ARB on appeal, the parties entered into a settlement agreement of litigation in Florida state court; that litigation included a claim that Defendant unlawfully terminated Plaintiff’s employment and retaliated against him because of his complaints to the DOL regarding Defendant’s visa practices. Respondent argued to the ARB that this settlement agreement released Complainant’s administrative complaint. The ARB, assuming arguendo that it had the power or authority to enforce the state court settlement agreement, found that the settlement did not bar the administrative proceeding.

First, by its terms, the settlement referred to and released only the claims brought in the state litigation, was not phrased as a general release, and did not reference the administrative action.

Second, the ARB found that res judicata did not apply because the INA gives the Secretary of Labor jurisdiction to investigate and adjudicate INA retaliation claims, and the state court would not have jurisdiction over the INA relation claim before DOL.

Third, the ARB noted that it was unclear whether Respondent was also relying on issue preclusion, but found that it would not apply as Respondent had not demonstrated that the state litigation “actually litigated” the matters at issue in the DOL proceeding.

LCA RETALIATION COMPLAINT; ALJ DID NOT ERR IN CONSIDERING RESPONDENT’S SUMMARY DECISION MOTION UNDER THE CORRECT STATUTORY PROVISION WHERE COMPLAINANT DID NOT SHOW PREJUDICE OR DISADVANTAGE BASED ON RESPONDENT’S CITATION TO WRONG STATUTORY PROVISION

In Nieman v. Southeastern Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA-00021 (Oct. 5, 2020) (per curiam), Complainant filed a complaint with the Wage and Hour Division under the employee protection provision of the Immigration and Nationality Act (INA), 18 U.S.C. § 1182(n)(2)(C)(iv) (2013); 20 C.F.R. § 655.801. Complainant asserted that Respondent retaliated against him for filing complaints with the DOL concerning Respondent’s H-1B nonimmigrant employment practices. The ALJ granted summary decision in favor of Respondent.

On appeal, Complainant argued that the ALJ’s summary decision was an improper sua sponte action because Respondents’ summary decision motion had cited 8 U.S.C. § 1324b, which is a different immigration related whistleblower statute. The ARB was not persuaded that the ALJ erred by considering summary decision under the correct statute. Complainant did not argue that he lacked notice of the true nature of Respondent’s motion or that he did not have the opportunity to respond because of the citation error. Moreover, Complainant cited to and made substantive arguments that matched the correct statute. The ARB stated: “There is also no indication the ALJ was led astray by SEG’s erroneous citation or that the citation had any impact on the arguments, analysis, or outcome in the proceedings below. Absent any showing of lack of notice, lack of opportunity to respond, or unfair prejudice or disadvantage to Nieman, we conclude the ALJ did not err by considering summary decision under the correct statute.” Slip op. at 11.

SUMMARY DECISION; TO SHOW THAT ALJ ABUSED HIS DISCRETION IN LIMITING DISCOVERY PRIOR TO RULING ON MOTION FOR SUMMARY DECISION, OPPOSING PARTY MUST OFFER MORE THAN MERE SPECULATION AND MUST STATE WITH PRECISION WHAT MATERIALS WOULD HAVE HELPED IN OPPOSING SUMMARY DECISION

In Nieman v. Southeastern Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA-00021 (Oct. 5, 2020) (per curiam), Complainant filed a complaint with the Wage and Hour Division under the employee protection provision of the Immigration and Nationality Act (INA), 18 U.S.C. § 1182(n)(2)(C)(iv) (2013); 20 C.F.R. § 655.801. Complainant asserted that Respondent retaliated against him for filing complaints with the DOL concerning Respondent’s H-1B nonimmigrant employment practices. The ALJ granted summary decision in favor of Respondent on the cause of action’s causation element.

On appeal, Complainant argued that the ALJ’s entry of summary decision was premature in light of Respondent’s alleged failure to properly participate in discovery. The ARB first described its review standard:

   ALJs have wide discretion to set or limit the scope of discovery and will be reversed only when such evidentiary and discovery rulings are arbitrary or an abuse of discretion. To establish an abuse of that discretion, Nieman must, at a minimum, show how further discovery could have permitted him to rebut SEG’s Motion for Summary Decision. Nieman must offer more than mere speculation as to what facts might be uncovered by additional discovery. He must “state with some precision the materials he hopes to obtain with further discovery, and exactly how he expects those materials would help him in opposing summary judgment.”

Slip op. at 21-22 (footnotes and citations omitted). The ARB found that several of the subjects on which Complainant argued he was denied discovery were irrelevant to the causation issue he needed to address in response to the summary decision motion. The ARB pointed in this regard to discovery requests for “documents and information related to other employees’ claims of misconduct, discrimination or retaliation, [Respondent’s General Counsel’s] disciplinary record, comparator data, the nature of SEG’s E-3 or H-1B visa hiring practices, and documents and communications related to the EEOC’s investigation of Nieman’s complaint.” Id. at 22.

Complainant argued that he was denied documents relating to Respondent’s interactions with the Wage and Hour Division during its investigation of the INA retaliation complaint. The ARB, however, found that Complainant had not explained how such evidence would have raised a material fact question regarding the causation issue. The ARB, noting that Complainant expressly asked DOL to keep his identity confidential, found that Complainant was merely speculating that there were documents that would have implicated him in the investigation.

Complainant argued that Respondent failed to produce the majority of communications relating to Respondent’s investigation of Complainant and termination of his employment. The ARB, however, noted that Complainant had not shown that there was anything else for Respondent to produce other than the 1,100 pages it had turned over in discovery. The ARB found that Complainant had not explained why additional documents concerning the termination or the reasons therefore could have helped him rebut the conclusion that termination was contemplated before Respondent became aware of the DOL complaints.

Complainant also argued that he was precluded from discovery and/or examination regarding post-termination conduct. The ARB, however, found that Complainant failed to explain, to any meaningful degree, what facts relevant to the issue presented on summary decision he expected to uncover with additional discovery. The ARB stated that mere speculation did not warrant reversing the ALJ’s grant of summary decision.

CAUSATION STANDARD FOR INA RETALIATION CLAIMS; ARB DECLINES TO RE-VISIT QUESTION OF WHETHER “MOTIVATING FACTOR” OR “BUT-FOR” STANDARD APPLIES IN LIGHT OF U.S. SUPREME COURT AUTHORITY ON OTHER DISCRIMINATION AND RETALIATION LAWS BECAUSE THE RECORD INDICATED THAT RESPONDENT HAD NO KNOWLEDGE OF COMPLAINANT’S PROTECTED ACTIVITY, WHICH WAS FATAL TO THE CLAIM REGARDLESS OF WHICH STANDARD APPLIES

In Nieman v. Southeastern Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA-00021 (Oct. 5, 2020) (per curiam), Complainant filed a complaint with the Wage and Hour Division under the employee protection provision of the Immigration and Nationality Act (INA), 18 U.S.C. § 1182(n)(2)(C)(iv) (2013); 20 C.F.R. § 655.801. Complainant asserted that Respondent retaliated against him for filing complaints with the DOL concerning Respondent’s H-1B nonimmigrant employment practices. The ALJ granted summary decision in favor of Respondent on the causation element of the cause of action.

On appeal, Complainant argued that the ALJ erred when he applied a “but-for” standard for causation. The ARB noted that in 2007 it had adopted the “motivating factor” standard for INA retaliation claims in Talukdar v. U.S. Dep’t of Veterans Affairs, ARB No. 2004-0100, ALJ No. 2002-LCA-00025, slip op at 11 n.10 (ARB Jan. 31, 2007); that the U.S. Supreme Court had subsequently applied the “but-for” standard for other discrimination and retaliation claims (specifically the Age Discrimination in Employment Act and Title VII’s anti-retaliation provision); that DOL had nonetheless confirmed in 2009 rulemaking that the motivating factor standard would apply in environmental whistleblower cases; and that federal courts had deferred to DOL’s application of the motivating factor standard in Family and Medical Leave Act cases. For the instant case, the ARB declined to consider the impact or applicability of the Supreme Court decisions on the INA causation standard for retaliation claims, because, under the facts of the instant case, there was no evidence presented to show that Respondent knew about Complainant’s protected activity before taking adverse action against Complainant—and such lack of knowledge was fatal to the claim under either the motivating factor or but-for causation standard.

CAUSATION; SUMMARY DECISION FOUND TO BE WARRANTED WHERE UNDISPUTED EVIDENCE SHOWED THAT DECISIONMAKERS HAD CONTEMPLATED TERMINATING COMPLAINANT’S EMPLOYMENT PRIOR TO LEARNING OF COMPLAINANT’S PROTECTED ACTIVITY UNDER THE INA; FACT THAT ACTUAL TERMINATION WAS A FEW DAYS LATER DID NOT CREATE A FACT ISSUE SUFFICIENT TO AVOID SUMMARY DECISION

SUMMARY DECISION; GENERAL ATTACKS ON WITNESS CREDIBILITY DO NOT CREATE A TRIABLE ISSUE OF FACT; NON-MOVING PARTY MUST PRESENT EVIDENCE TO CREATE A FACTUAL DISPUTE; SPECULATION DOES NOT SUFFICE

SUMMARY DECISION; ARGUMENT THAT RESPONDENT’S PROFFERED REASONS FOR COMPLAINANT’S TERMINATION SHIFTED OVER TIME AND WERE DEMONSTRABLY FALSE INSUFFICIENT TO CREATE A FACTUAL DISPUTE WHERE SUMMARY DECISION WAS BASED ON UNDISPUTED FACT THAT DECISIONMAKERS DID NOT KNOW ABOUT COMPLAINANT’S PROTECTED ACTIVITY UNTIL AFTER THEY CONTEMPLATED TERMINATING THE EMPLOYMENT

SUMMARY DECISION; ARGUMENT THAT CERTAIN POST-TERMINATION ACTIONS CAN BE ACTIONABLE UNDER INA RETALIATION STATUTE DID NOT CREATE A FACT ISSUE SUFFICIENT TO AVOID SUMMARY DECISION WHERE SUMMARY DECISION WAS BASED ON FAILURE TO SHOW A FACT DISPUTE ABOUT CAUSATION

In Nieman v. Southeastern Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA-00021 (Oct. 5, 2020) (per curiam), Complainant filed a complaint with the Wage and Hour Division (WHD) under the employee protection provision of the Immigration and Nationality Act (INA), 18 U.S.C. § 1182(n)(2)(C)(iv) (2013); 20 C.F.R. § 655.801. Complainant asserted that Respondent retaliated against him for filing complaints with the DOL concerning Respondent’s H-1B nonimmigrant employment practices. The ALJ granted summary decision in favor of Respondent. Employing a de novo standard of review, the ARB affirmed the ALJ’s decision. Like the ALJ, the ARB reviewed the case in terms of three time periods: pre-termination; termination; and post-termination.

Pre-Termination

Complainant had been hired in 2015 under the title “Senior Manager, Liability Claims.” Between October 2015 and October 2016, Complainant filed three complaints with the EEOC against Respondent. Complainant made Respondent aware of these complaints. He filed the INA retaliation complaint with the WHD in June 2016—but did not notify Respondent of this complaint, and asked DOL to keep his identity confidential. The WHD conducted an investigation. There was no evidence that DOL breached Complainant’s request for confidentiality or that Respondent learned from any other source that Complainant helped to prompt the WHD investigation. Respondent’s officials denied knowing of Complainant’s relationship to the WHD investigation until after they had made the decision to terminate Complainant’s employment.

In a footnote, the ARB stated:

    We summarily reject any claim regarding adverse conduct that occurred before Nieman first engaged in activity protected by the INA which, at the earliest, was on April 9, 2016, when Nieman emailed his concerns about H-1B violations to the EEOC. See Chivers v. Wal-Mart Stores, Inc., 641 F.3d 927, 933 (8th Cir. 2011) (finding acts occurring before protected activity “cannot be causally related” to protected activity); Moron-Barradas v. Dep’t of Educ. of Com. of Puerto Rico, 488 F.3d 472, 481 (1st Cir. 2007) (“It is impossible for the [defendant] to have retaliated against [the plaintiff] before she engaged in protected activity”).

Slip op. at 14, n.85.

Complainant asserted on appeal that Respondent may have suspected he filed a complaint or helped prompt the WHD investigation because the investigation was extensive and that Respondent’s General Counsel would have had insight into and participated in the investigation. The ARB, however, stated: “Even accepting these facts as true, Nieman does not explain how SEG could have deduced or suspected that Nieman was the whistleblower behind the investigation based on these facts.” Id. at 15.

Complainant also appeared to argue that the pattern of animosity he suffered after he filed the DOL complaint serves as circumstantial evidence of knowledge of his conduct and intent to retaliate. The ARB, however, noted that Complainant had offered no evidence that would link this adverse conduct to the investigation or Complainant’s DOL complaints, and that the record indicated that Complainant had repeatedly argued this conduct was prompted by his EEOC activity, not his DOL complaints. The ARB determined that Complainant’s “attempt to connect the alleged pattern of animosity to his DOL complaints is based on speculation.” Id. at 16.

Complainant pointed to an email sent by Respondent’s General Counsel suggesting that he had Complainant “under scrutiny” six months after he filed his first DOL complaint, and argued that this was direct evidence of knowledge and retaliatory motive. The ARB found that the context of the “scrutiny” was not revealed by the email, and that a causal link was mere speculation. The ARB again noted that there was undisputed evidence that Respondent did not know about the DOL complaint at the relevant time.

Termination

It was undisputed that Complainant identified himself as the INA whistleblower in emails in June 2017, and that Respondent terminated Complainant’s employment shortly thereafter in July 2017. The undisputed evidence also showed, however, that Respondent had already contemplated terminating Complainant’s employment a day before it learned about his protected activity. The ARB thus determined that Complainant’s protected activity could not have caused the termination. The ARB recounted the statements of Respondent’s decisionmakers in this regard, and stated its agreement with the ALJ that “an employee cannot establish causation if the employer merely proceeds along a course of action already contemplated before it learned of his protected activity.” Id. at 17-18 (footnote omitted).

Complainant argued that summary decision was not appropriate because there was a fact issue as to whether his protected activity could have caused his termination because he showed that Respondent did not make a final decision to terminate his employment until after he identified himself as a whistleblower. The ARB acknowledged that not all of Respondent’s officials immediately agreed to the termination recommendation and that Respondent’s General Counsel recommended deferral of termination until an internal investigation was completed. The ARB, however wrote: “as Supreme Court and other federal precedent makes clear, the fact that an employer ’contemplated’ termination before learning of the employee’s protected activity undercuts an argument about causation, even if the employer does not make a final decision until after learning of the employee’s protected activity.” Id. at 18 (footnote omitted).

Complainant argued that a dispute of fact existed because there was no contemporaneous evidence to corroborate the declarations of the relevant Respondent officials that they actually contemplated termination prior to the email, those officials first making these averments with the motion for summary decisions. The ARB rejected this argument, stating: “General attacks on witness credibility like these do not create a triable issue of fact. Nieman must present evidence to create a factual dispute; speculation does not suffice.” Id. (footnote omitted). The ARB noted as well that, although there was no written, contemporaneous memorialization, the declarants’ averments were supported by other evidence of record.

Complainant argued that Respondent’s proffered reasons for the termination shifted over time and were demonstrably false, thus creating a triable issue as to the legitimacy of the termination of his employment. The ARB was not persuaded, citing the ALJ’s determination that “although the reasons for Nieman’s termination may be in dispute, that dispute is not material to the outcome of the case. . . . [A]n employee can be terminated for good reason, bad reason, or no reason at all, just not an illegal reason.” Id. at 19 (footnotes omitted). The ARB stated: “Because there is no evidence that SEG was aware of Nieman’s protected activity when it contemplated terminating his employment, the dispute over the justifications SEG gave for the termination are irrelevant to the outcome of the case.” Id.

Post-Termination

Complainant alleged three forms of post-termination retaliation. As to an alleged frivolous lawsuit and an alleged improper proposal for settlement, the ARB affirmed the ALJ’s conclusion that Complainant failed to provide any evidence to suggest that his protected activity caused Respondent’s alleged adverse conduct. The ARB found that Complainant failed on appeal to present any argument as to causation, but only addressed the general proposition that these types of post-termination conduct may be actionable and should be considered under the “continuing violation” doctrine.

Complainant also alleged that Respondent attempted to cause his subsequent employment to be quickly terminated. Complainant, however, had conceded that this allegation was “as of yet unproven.” Finding that Complainant had presented no evidence to suggest that Respondent had a role in the subsequent termination, the ARB affirmed the ALJ’s grant of summary decision as this claim was based on mere speculation.

 

SUMMARY DECISION; ALJ MAY GRANT SUMMARY DECISION ON GROUNDS NOT RAISED BY A MOVANT AS LONG AS NON-MOVANT HAS NOTICE AND AN OPPORTUNITY TO RESPOND; EXPLICIT NOTICE BY ALJ NOT REVERSIBLE ERROR WHERE NON-MOVANT PUT THE QUESTION BEFORE THE ALJ AND HAD EXTENSIVELY BRIEFED THE QUESTION

In Nieman v. Southeastern Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA-00021 (Oct. 5, 2020) (per curiam), Complainant filed a complaint with the Wage and Hour Division (WHD) under the employee protection provision of the Immigration and Nationality Act (INA), 18 U.S.C. § 1182(n)(2)(C)(iv) (2013); 20 C.F.R. § 655.801. Complainant asserted that Respondent retaliated against him for filing complaints with the DOL concerning Respondent’s H-1B nonimmigrant employment practices. The ALJ granted summary decision in favor of Respondent.

On appeal, Complainant argued that the ALJ erred in granting summary decision in regard to the events occurring after Respondent terminated Complainant’s employment, the motion for summary decision having focused on the conduct and events leading up to the termination. The ARB noted that Complainant had discussed the post-termination events extensively in his brief opposing summary decision, and found that the ALJ did not error in including that question in the summary decision determination. The ARB stated:

    An ALJ may grant summary decision for a non-movant, or grant a motion for summary decision on grounds not raised by a movant, as long as he provides notice and an opportunity to respond. Although the ALJ did not expressly provide notice that he was considering granting summary decision on the issue of post-termination conduct, Nieman himself put the issue before the ALJ in his Opposition. Nieman also had the opportunity to be heard. His argument to the ALJ on the issue was extensive—his factual recitation and arguments concerning the post-termination conduct covered nearly thirteen pages of his Opposition brief. Nieman does not argue that there were any facts, evidence, or arguments that he was not able to present to the ALJ in his Opposition. Under these circumstances, and without any evidence of unfair prejudice, we conclude that the ALJ’s consideration of the post-termination conduct in the D. & O. was not in error.

Slip op. at 20 (footnotes omitted).