Mehra v. West Virginia University, ARB No. 2021-0056, ALJ No. 2017-LCA-00002 (ARB Dec. 21, 2021) (per curiam) (Decision and Order)
ALJ DID NOT ERR IN DETERMINING THAT COMPLAINANT WAS NOT ENTITLED TO ADDITIONAL REMEDIES ON HIS LCA COMPLAINT BECAUSE, ALTHOUGH RESPONDENT FAILED TO PAY THE REQUIRED LCA WAGE DURING A THIRD LCA PERIOD, IT HAD DISCOVERED THE DEFICIENCY AND HAD VOLUNTARILY PAID COMPLAINANT WHAT WAS OWED BEFORE THE LCA COMPLAINT WAS FILED
In Mehra v. West Virginia University, ARB No. 2021-0056, ALJ No. 2017-LCA-00002 (ARB Dec. 21, 2021) (per curiam), Complainant was an H-1B worker who worked under a labor condition application (LCA), and two LCA extensions, as an Instructor, and later as an Assistant Professor. After the promotion to Assistant Professor, an Immigration Specialist for Respondent who was analyzing whether the promotion required an amendment to the LCA, discovered that although an amendment was not required, Respondent had failed to pay the required wage during the third LCA. Respondent calculated the amount owed, and paid Complainant the back pay. About two years later, Complainant filed a complaint with DOL’s Office of Inspector General (OIG) alleging that West Virginia University failed to pay him the required wage rate under the H-1B LCA regulations. OIG turned the complaint over to the Wage and Hour Division. The Wage and Hour Division found that Respondent had paid the correct wage level and had not committed any violations.
After a hearing, the ALJ found that, although Complainant had not received his required wage during the third LCA period, Respondent had voluntarily paid what it owed to Complainant after discovering the pay deficiency, and Complainant was not entitled to any additional remedies. On appeal, the ARB summarily affirmed the ALJ’s Decision and Order denying the complaint. The ARB noted that Complainant’s briefs were difficult to decipher, but appeared to contend that the prevailing wage for his employment should have been higher than determined by the Wage and Hour Division because he had received a doctorate degree, and that he should have been paid a wage comparable to the higher salaries of the faculty at the campus at which he worked. The ARB, however, found no reversible error by the ALJ, and affirmed the ALJ’s decision.
Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Dec. 21, 2021) (per curiam) (Decision and Order on Remand)
LAW OF THE CASE DOCTRINE AND MANDATE ON A REMAND; THE MORE THE APPELLATE COURT DID NOT FULLY ADDRESS ARGUMENTS, APPLICABLE LAW, AND THE PARTICULAR FACTS OF THE CASE, THE LESSER THE CONSTRAINT THE LOWER COURT IN SUBSEQUENT LITIGATION
AFFIRMATIVE DEFENSE WHERE THERE WAS A VIOLATION OF RAILROAD’S POLICY ON UNTIMELY REPORTING OF AN INJURY; THIS SITUATION REQUIRES EVALUATION OF EXTRINSIC FACTORS INCLUDING THE EMPLOYER’S JUSTIFICATION FOR THE ACTION AND THE CONSISTENCY WITH WHICH THE EMPLOYER APPLIES THE POLICY
AFFIRMATIVE DEFENSE; ARB DECLINED TO CONSIDER COMPLAINANT’S ARGUMENT THAT BNSF’S LATE-REPORTING POLICY WAS UNFAIR AND UNREASONABLE; DOL’S TASK IS NOT TO ASK WHETHER THE REPORTING POLICY “RINGS WELL,” BUT ONLY WHETHER RESPONDENT RETALIATED AGAINST COMPLAINANT FOR FRSA PROTECTED ACTIVITY
In Thorstenson v. BNSF Railway Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS-00052 (ARB Dec. 21, 2021) (per curiam), the ARB had affirmed the ALJ’s determination that Respondent met its burden for an affirmative defense concerning Complainant’s FRSA retaliation complaint. The Ninth Circuit, in a brief unpublished memorandum, remanded on the ground that the ARB’s decision had erred in two respects: (1) that, under the circumstances of the case, it had been virtually impossible for Complainant to comply with BNSF’s 72-hour injury reporting rule, and (2) that the ARB had imposed an erroneous proximate cause standard of proof. On remand, the ARB again affirmed the ALJ on the affirmative defense determination in a decision in which the ARB had to grapple with analytical problems introduced by the Ninth Circuit’s memorandum.
Factual and Procedural Background
Complainant, who worked as a conductor for BNSF, had been given “Level S” (i.e., “serious”) “record suspension” (i.e., a suspension recorded in the employee’s personnel file, but which permitted the employee to continue to work with pay) for not timely reporting an injury, which in this case may have been an aggravation of a prior injury. Five months later, Complainant and a co-worker were investigated for speeding and passing through a crossing without sounding the whistle. The investigation resulted in a finding of Level S violations for both employees. Due to BNSF’s progressive discipline policy, Complainant was discharged for having two offenses within the relevant time period. Complainant then filed an FRSA complaint with OSHA alleging that the record suspension was retaliatory. The complaint was later amended to allege that Complainant would not have been discharged, but for the previous discipline for late-filing of an injury report. OSHA found in Complainant’s favor, and BNSF requested an ALJ hearing.
The ALJ concluded that Complainant engaged in FRSA-protected activity, and that BNSF’s decision to discipline Complainant was “inextricably intertwined” with that protected activity. The ALJ, however, also determined that BNSF established by clear and convincing evidence that it would have disciplined Complainant for the late report and safety violation even if he had not engaged in protected activity. On appeal, the ARB held that the ALJ erred in applying the “inextricably intertwined” analysis, recognizing that this was the precedent at the time of the ALJ’s decision, but explaining that the ARB had subsequently determined that such analysis departed from and circumvented the appropriate statutory analysis. The ARB, however, affirmed the ALJ’s determination that BNSF’s established the affirmative defense.
Complainant appealed to the Ninth Circuit Court of Appeals. The Ninth Circuit issued an unpublished Memorandum remanding the case to the ARB for further proceedings. Thorstenson v. U.S. Dep’t of Labor, 831 F. App’x 842 (9th Cir. 2020) (unpublished). The court found that the circumstances of the case “made it virtually impossible for Thorstenson to know he had experienced a new injury in time to comply with BNSF’s 72-hour reporting rule.” Id. at 843. The court also concluded that the ARB erred by imposing “a new burden of proof for causation under which FRSA claimants must demonstrate that the protected activity was a proximate cause of the adverse action.” Id.
Law of the Case Doctrine
In its Decision an Order on Remand, the ARB first set the context by reviewing its finding from its earlier decision and Complainant’s brief before the Ninth Circuit. It then carefully analyzed the Ninth Circuit’s decision, and concluded that the court had only addressed one argument concerning the affirmative defense holdings – that the ARB erred in rejecting Complainant’s argument that BNSF’s policy regarding reporting of workplace injuries was “unreasonable” and “unduly burdensome.” The ARB noted that the Ninth Circuit had expanded on this argument with several policy grounds, reasoning that compliance with the policy could not reasonably be met and was “virtually impossible” under certain circumstances. The ARB then turned to its mandate on remand under law-of-the-case doctrine.
The ARB examined the doctrine, and observed that “the doctrine covers subsequent litigation most fully when the prior court or appellate court addressed the parties’ arguments, the applicable law at issue, and the facts of a particular case. As the appellate court leaves more substance untouched, the lower court is less constrained.” Slip op. at 10-11. The ARB then explained its conclusion that the Ninth Circuit’s memorandum did not constitute the law of the case for purposes of Respondent’s affirmative defense because: (1) the court had not analyzed the FRSA framework and had not considered whether its reasoning fit that framework; (2) the court focused on Complainant’s fairness arguments and not on the specific affirmative defense arguments (the ARB noting that courts do not typically review the merits of an employer’s policy when deciding if that employer violated the FRSA); and (3) the court followed Complainant’s mischaracterizations of BNSF’s policy to challenge hypothetical situations that did not match the record or the actual policy. The ARB went on to explain why the court’s analysis did not fit the facts of the case. After consideration of the parties’ arguments in the remand briefing, the ARB resolved the law of the case issue as follows:
- In the analysis that it did do, the Ninth Circuit’s memorandum characterized the policy as burdensome, unreasonable, and retaliatory under these circumstances. The Ninth Circuit wrote: “[Thorstenson] was effectively disciplined for the protected activity of reporting a workplace injury.” As law of the case, we adopt the Ninth Circuit’s position that BNSF violated the statute, but we construe this to apply to Thorstenson’s contributing factor phase.
- A contrary opinion might look at the Ninth Circuit’s language “unduly burdensome,” “unreasonable,” and “retaliatory” as conclusions that encapsulate or indirectly address BNSF’s affirmative defense in so far as they are negatives concerning BNSF’s policy. But as stated above, the Ninth Circuit’s opinion does not mention the affirmative defense or the FRSA’s burden framework and factors such as “unreasonable” and “burdensome” do not necessarily implicate the affirmative defense. By its very nature, the affirmative defense assumes that a violation has taken place, but continues the analysis by comparing the respective weights of the retaliatory reasons with the non-retaliatory reasons and asks the fact-finder to make a finding in a counterfactual or hypothetical situation as if the protected conduct had not occurred. Because the Ninth Circuit’s opinion did not discuss the affirmative defense and considered facts that are inapplicable to Thorstenson’s situation and BNSF’s policy, we conclude that a holding on BNSF’s affirmative defense is not the law of the case.
Id. at 14 (footnote omitted).
Application of Affirmative Defense to Situation Where Filing of Injury Report Resulted in Adverse Action for Untimely Reporting
Based on how it construed the Ninth Circuit’s Memorandum, the ARB again found that the ALJ’s findings on BNSF’s affirmative defense were supported by substantial evidence.
The ARB noted that the “affirmative defense asks the fact-finder to determine if the employer has proven by clear and convincing evidence that it would have taken the same adverse action in the absence of protected activity.” Id. at 14-15 (footnote omitted). The ARB then noted its agreement with the ALJ that
- …in cases such as this one where the protected activity of filing an injury report initiated events that led to the adverse action for untimely reporting, the traditional application of “in the absence of protected activity” leads to a more complex analysis. As a result, the fact-finder may evaluate the employer’s affirmative defense by examining several extrinsic factors including the employer’s justification for the action and the consistency with which the employer applies the policy.
Id. at 15 (footnotes omitted). Here, substantial evidence supported the ALJ’s determination that Complainant had committed two Level S violations within a short time period. The ARB noted the ALJ’s finding that Complainant and other employees filed timely injury reports with no repercussions, but that several employees had been disciplined for late reporting. The ALJ found that BNSF does not impose discipline for timely reporting of injuries, and noted that Complainant himself had made several prior injury reports with no discipline. The ALJ found that Complainant knew about the policy, and under the facts of the case could have complied with it, but failed to do so. The ALJ determined that if Complainant was uncertain whether the policy applied to the instant situation where the injury might have been an aggravation of a prior injury but with symptoms serious enough to require medical attention, he could have asked his supervisor, his trainmaster, or his union. The ARB noted that the ALJ found that BNSF applied its policy consistently, and that its rule was not confusing.
Here, Complainant’s second Level S violation had been within five months of the prior violation, and was for a dischargeable offense of operating the train in excess of the speed limit and passing a crossing without sounding the whistle, and BNSF relied on its progressive discipline policy to terminate Complainant’s employment for two Level S disciplines within the applicable time period. This supported the ALJ’s affirmative defense finding.
The ARB noted Complainant’s argument that BNSF’s late-reporting policy is unfair and unreasonable, but indicated that this question was not for it to decide on the FRSA affirmative defense analysis. The ARB wrote:
- Our task at the ARB is to ask not whether BNSF’s policy is the most-well thought out policy or rings well in a policy setting. Instead, our task is to determine whether BNSF retaliated against Thorstenson for activity protected under the FRSA. “Courts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it.” We therefore again conclude that BNSF did not violate the FRSA by terminating Thorstenson’s employment.
Id. at 18 (footnote omitted).
Ninth Circuit’s Conclusion that ARB Imposed an Erroneous Proximate Cause Burden of Proof
The ARB next turned to the Ninth Circuit’s finding of error that the ARB had imposed a proximate cause burden of proof. The ARB explained why this was a misunderstanding of its decision. The ARB first noted that the ALJ, following later deprecated precedent, found that found that BNSF violated the FRSA because Complainant’s discipline was “inextricably intertwined” with his protected activity of reporting an injury. The ARB noted that it had explained its finding that the ALJ erred in following the deprecated precedent when it wrote that “the plain language of the FRSA does not include the term ‘inextricably intertwined,’ and the analysis is ‘a construction that substitutes for, and in some cases circumvents, the ALJ’s contributing factor or affirmative defense analyses.’” Id. at 19 (footnote omitted). The ARB quoted the Ninth Circuit’s conclusion that the ARB had imposed a new “proximate cause” burden of proof for causation under the FRSA. The ARB then quoted its earlier decision in Klinger v. BNSF Ry. Co., ARB No. 2019-0013, slip op at 9 n.58, in which it had explained that the Ninth Circuit’s memorandum in Thorstenson had not discussed the ARB’s principal holding regarding the lack of viability of “inextricably intertwined” and “chain-of-events” analyses.
The ARB acknowledged that in it discussion in Thorstenson, it had quoted the Seventh Circuit decision in Koziara to distinguish legal causation from factual causation, and had used the phrase “proximate causation” in that discussion. The ARB explained, however, that the Ninth Circuit had construed the phrase “proximate causation” in a different manner than the ARB intended, and that the ARB had not intended to create an additional standard above and beyond the statutory text of the FRSA. The ARB noted that the statutory text only requires the complainant to prove that protected activity was “a contributing factor in the unfavorable personnel action, ” and noted that it had previously stated that a “contributing factor” includes “any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Slip op. at 21 (footnote omitted).
Haiducek v. American Airlines, Inc., ARB No. 2022-0010, ALJ No. 2020-AIR-00019 (ARB Dec. 30, 2021) (per curiam) (Order Dismissing Complaint)
UNTIMELY PETITION FOR REVIEW; INABILITY TO SECURE LEGAL COUNSEL DID NOT ESTABLISH GOOD CAUSE FOR THE LACK OF TIMELINESS OF THE PETITION FOR REVIEW
The ARB issued an order to show cause why Complainant's petition for review of his AIR21 claim should not be dismissed as untimely. Complainant's explanation that he had not been able to secure legal counsel failed to establish good cause to prevent dismissal where Complainant did "not contend that he was unaware of the time period for filing a timely petition for review, and filing a timely petition for review would not have prevented Complainant from securing counsel at a later point of the appeal process." Haiducek v. American Airlines, Inc., ARB No. 2022-0010, ALJ No. 2020-AIR-00019 (ARB Dec. 30, 2021) (per curiam).
Judy v. Covenant Transport, Inc., ARB No. 2021-0015, ALJ No. 2019-STA-00054 (ARB Dec. 15, 2021) (per curiam) (Order Denying Reconsideration)
The ARB denied Complainant’s motion for reconsideration of the ARB’s decision dismissing the complaint where “Complainant’s motion repeats arguments that he raised in his original appeal and the Board already considered….” Complainant filed this motion pro se after his counsel had filed a motion seeking to withdraw as counsel.
Reed v. American Airlines, Inc., ARB No. 2021-0044, ALJ No. 2020-AIR-00001 (ARB Dec. 16, 2021) (per curiam) (Decision and Order)
PRETEXT AND THE BURDEN-SHIFTING FRAMEWORK; AN ALJ MAY CONSIDER WHETHER RESPONDENT’S PROFFERED REASONS FOR THE ADVERSE EMPLOYMENT ACTION WERE PRETEXT WHEN DETERMINING WHETHER COMPLAINANT ESTABLISHED CONTRIBUTORY FACTOR CAUSATION, AND WHEN DETERMINING WHETHER RESPONDENT MET ITS AFFIRMATIVE DEFENSE; THE QUESTION OF PRETEXT DOES NOT NEED TO BE MADE IN A SEPARATE, DISTINCT ANALYSIS
In Reed v. American Airlines, Inc., ARB No. 2021-0044, ALJ No. 2020-AIR-00001 (ARB Dec. 16, 2021) (per curiam), Complainant argued on appeal that the ALJ erred as a matter of law by failing to conduct a complete, thorough, and separate pretext analysis. The ARB, however, found that the ALJ had fully considered whether Respondent’s stated reasons for the adverse action were pretext, and disagreed with Complainant that such an analysis needed to be made separately from the analysis of whether a complainant proved contributory factor causation. The ARB wrote:
- Under the McDonnell Douglas burden-shifting framework, a complainant bears the burden of presenting a prima facie case of retaliation, which then shifts to the employer to show a legitimate, non-retaliatory reason for the adverse action. If the employer makes a showing, the burden goes back to the complainant to show that a respondent’s reason was merely pretext. The employer’s evidentiary burden is only one of production, and the burden of proof for demonstrating contribution remains with the complainant.
The Board has held under this framework that an ALJ may consider whether an employer’s proffered reasons are pretextual “in the course of concluding whether a complainant” has proved that the “protected activity contributed to the dismissal.” The Board, however, has not suggested that the pretext analysis is mutually exclusive and is separate from the contribution or affirmative defense analyses. Instead, the Board has held that pretext may serve as circumstantial evidence of contribution or that the employer would not have taken the same unfavorable personnel action in the absence of the complainant’s protected behavior. A complainant is not required to prove pretext to prove contribution, and an ALJ may, but is not compelled to, find retaliation based on a showing of pretext. The ALJ appropriately considered the entire record on this issue in the context of determining whether the Respondent met its evidentiary burden for its affirmative defense. Thus, we discern no legal error in the ALJ’s pretext analysis.
Slip op. at 18-19 (footnotes omitted).
ADVERSE INFERENCE REGARDING RELUCTANT WITNESS’ TESTIMONY; ALJ DID NOT ABUSE HIS DISCRETION IN ONLY FINDING THAT WITNESS’ TESTIMONY NOT TO BE CREDIBLE, AND NOT DRAWING AN ADVERSE INFERENCE ON THAT TESTIMONY; ALTHOUGH THAT WITNESS HAD FAILED TO APPEAR INITIALLY, SHE LATER DID APPEAR AND PROVIDED TESTIMONY WITH OF ONLY LIMITED VALUE
In Reed v. American Airlines, Inc., ARB No. 2021-0044, ALJ No. 2020-AIR-00001 (ARB Dec. 16, 2021) (per curiam), Complainant contended that one type of adverse employment action he experienced was being excluded from overtime assignments. The ALJ found a lack of credible evidence that management took affirmative steps to prevent Complainant from obtaining overtime work based on several factors: that the overtime assignment process was a regimented and monitored system set forth in the collective bargaining agreement; staff was not capable of excluding particular mechanics; and Complainant presented no evidence that “his overtime hours decreased after his protected activity or that his hours were out of sync with other mechanics.” Slip op. at 13.
One of Respondent’s witnesses on the overtime question was an executive assistant who handled overtime requests, and who had verified that Respondent’s policies preventing skipping over any mechanic. This witness had testified in the December portion of the hearing after failing to comply with a subpoena for her testimony in the November portion. In the credibility assessment portion of his Decision and Order, the ALJ found this witness’ testimony not to be credible and “gave it no weight because her testimony was vague, disjunctive, and rambling and because she only participated in the proceedings because she was compelled to do so by subpoena.” Id. at 12 (footnote omitted).
On appeal, Complainant argued that the ALJ should have drawn an adverse inference regarding the reluctant witness’ testimony. The ARB concluded that Complainant apparently wanted the ALJ to find that this witness told Complainant that he had been blacklisted for overtime (Complainant having claimed that she had told him this). The ARB found, however, that the ALJ did not abuse his discretion in not making an adverse inference against the reluctant witness’ testimony. The ARB explained:
- Complainant cites caselaw providing that a factfinder may make an adverse inference against a party when it fails to produce a witness that was either physically or pragmatically available to only that party. The Board has recognized that “an adverse inference may be drawn regarding any factual question on which the witness is likely to have knowledge” if the “party fails to call a witness who may reasonably be assumed to be favorably disposed to the party.” This principle does not apply if “through neither party’s fault the witness was physically unavailable to both parties.” Complainant alleges that Marti was unavailable because of her failure to initially appear to testify and her uncooperative testimony. However, Marti eventually testified and provided “limited information of value” on whether Complainant was blacklisted for overtime.
Id. at 20 (footnotes omitted).
AFFIRMATIVE DEFENSE; AIRLINE REASONABLY OPENED AN INVESTIGATION WHERE COMPLAINANT, A MAINTENANCE TECHNICIAN, HAD BEEN ACCUSED OF SABOTAGING AN AIRCRAFT; CONSIDERING THE IMPORT OF AIR SAFETY AND THE FACTS IN THEIR TOTALITY, RESPONDENT’S ACTIONS IN SUSPENDING COMPLAINANT WITH PAY, AND ASSOCIATED ACTS SUCH AS DENYING ACCESS TO THE FACILITY DURING THE INVESTIGATION, HAD BEEN PRUDENT; ALTHOUGH COMPLAINANT WAS UNDERSTANDABLY FRUSTRATED BY RESPONDENT’S HANDLING OF THE SITUATION, ESPECIALLY SINCE HE WAS CLEARED OF THE ALLEGATION OF SABOTAGE, IT IS NOT DOL’S ROLE TO DECIDE THE CORRECT PERSONNEL DECISION
In Reed v. American Airlines, Inc., ARB No. 2021-0044, ALJ No. 2020-AIR-00001 (ARB Dec. 16, 2021) (per curiam), Complainant was an experienced Airline Maintenance Technician. The factual context of the case was complex, but in essence, Complainant was accused by co-workers of possibly sabotaging an aircraft to delay departure. Early reports of the incident to management did not raise a question of sabotage, but a Section 29(f) investigation was opened once it became clear that the allegation was more serious than as initially raised. The ARB explained the nature of a Section 29(f) investigation:
- Respondent has a collective bargaining agreement (CBA) with the Transport Workers Union of America (Union), which covers its mechanics. In the instance of an investigation of a matter that may lead to discipline of a mechanic, Section 29(f)(2) of the CBA provides that Respondent may hold a mechanic “out of service pending the investigation, provided that the employee will be paid for all regularly scheduled hours while held out of service.” Interviews conducted as part of a 29(f) Investigation are not disciplinary but are fact-finding in nature. Based upon a memorandum of understanding between the Union, Respondent, and the FAA, Respondent established a confidential, but not anonymous, program for reporting safety issues called the Aviation Safety Action Program (ASAP).
Slip op. at 2 (footnotes omitted). Complainant was suspended from service with pay and had access to the facility removed during the investigation. Complainant was reinstated about a month later, and Respondent closed its investigation having determined that the allegations against Complainant were unfounded. Complainant ultimately filed an AIR21 retaliation complaint alleging that he experienced several retaliatory adverse employment actions upon returning to work. The ALJ rejected some of Complainant’s contentions of protected activity, and hostile work environment, but found that that some of Complainants’ actions were protected activity under AIR 21. The ALJ also found that the Section 29(f) investigation itself was not an adverse action, but that associated actions were adverse action, such as placing Complainant on leave without pay, taking his ID badge, escorting him to his locker and out of the facility, and rescinding his access to a program used to monitor pay and benefits. The ALJ found that Respondent knew of Complainant’s protected activity of reporting of a pressure door issue because it was mentioned in the written statement accusing Complainant of sabotage, and this was sufficient to establish contributory factor causation.
The ALJ then considered Respondent’s affirmative defense that Complainant had been accused of serious misconduct, and Respondent has ultimate Respondent has the ultimate responsibility for air safety on its aircraft. Given the seriousness of the allegation, the ALJ accepted Respondent’s decision to promptly suspend Complainant and take extreme caution when investigating the matter, and found that found that Respondent proved by clear and convincing evidence that it would have suspended Complainant absent the protected activity.
On appeal, Complainant cited evidence that he argued showed pretext, and that Respondent was not actually concerned that Complainant had intentionally damaged an aircraft. The ARB, however, declined to disturb the ALJ’s decision. The ARB stated:
- Although the evidence Complainant cites may be probative and potentially undermine Respondent’s explanation that it suspended him because of serious concerns that he had engaged in sabotage, it is not definitive that it had reached a conclusion to the contrary. Any allegation that a mechanic may have jeopardized the safety of their aircraft may, and should, reasonably elicit a substantial reaction from an airline, because safety is a legitimate, paramount concern. Williams and Orban both testified they were concerned about safety when they first learned about the seriousness of the allegation against Complainant based upon the mechanics’ statement on May 2, 2018. Williams also testified that Respondent regularly suspends employees with pay during the course of an investigation.
We agree with the ALJ’s statement that, other than the pilots, mechanics comprise the very heart and soul of the process to maintain the public confidence in the safety of air travel and, more specially, the safety of passengers on any particular plane. Indeed, the core purpose of the ASAP program encourages mechanics to report potential safety violations without fear of reprisal. This further underscores that Respondent acted to protect public safety because of the seriousness of the sabotage allegations raised against Complaint. We also agree with the ALJ that it was not unreasonable, when viewing the facts in their totality, for Respondent to temporarily suspend with pay an individual accused of sabotaging an aircraft, revoke the use of an identification badge, monitor him while removing items from his locker, and escort such an individual from its facilities. We further agree that Respondent’s actions were prudent at the time because of the pending investigation of the incident.
In sum, we conclude that the ALJ’s factual findings are supported by substantial evidence. Although Respondent may have been rather cautious when addressing the allegation, and we understand Complainant’s frustration with his employer’s handling of the matter (particularly where, as here, he was completely cleared of the serious allegations of sabotage), it is not our role to decide the correct personnel decision.
Id. at 22-23 (footnotes omitted) (emphasis as in original).
Stokes v. Albertson's LLC, ARB Nos. 2022-0007, -0014 ALJ Nos. 2020-STA-00080, -0082 (ARB Dec. 2, 2021) (Order)
A PARTY'S PETITION FOR ARB REVIEW OF ALJ'S AMENDED DECISION ON RECONSIDERATION SHOULD BE FILED IN THE EXISTING APPEAL, AND NOT AS A SECOND APPEAL
In Stokes v. Albertson's LLC, ARB Nos. 2022-0007, -0014 ALJ Nos. 2020-STA-00080, -0082 (ARB Dec. 2, 2021), the ARB had issued a briefing schedule for the petition for review for review of the ALJ’s decision in the matter. The ARB, however, granted Complainant's motion to stay the briefing schedule pending the ALJ's decision on a pending motion for reconsideration. When the ALJ issued his amended decision denying relief, Complainant electronically filed a Petition for Review appealing the ALJ's amended decision. The ARB accepted the petition and assigned a new Case Number, ARB No. 2022-0014.
The ARB, however, determined that the petition for review of the ALJ’s amended decision should have been filed in the existing appeal, ARB No. 2022-0007, and not as a second appeal. Accordingly, the ARB removed Case No. 2022-0014 from its docket, and associated the new petition for review and the ALJ's amended decision with the existing Case No. 2022-0007.
[Editor’s Note: The ALJ had granted reconsideration and vacated his October 25, 2021 Decision and Order on the ground that ground that Complainant had filed a timely brief that the ALJ had not considered. See Order Granting Reconsideration and Vacating Decision and Order (ALJ Nov. 20, 2021). When the ALJ issued his amended Decision and Order, however, he still denied relief to Complainant. See Amended Decision and Order Denying Relief (ALJ Nov. 21, 2021).]