USDOL/OALJ Reporter: 2022 Federal Court Whistleblower Decisions

Consumer Financial Protection Act
Energy Reorganization Act
Federal Railroad Safety Act
Safe Drinking Water Act
Sarbanes-Oxley Act
Seaman’s Protection Act
Surface Transportation Assistance Act

Consumer Financial Protection Act

Alijaj v. Wells Fargo, No. 17-cv-1887 (S.D. N.Y. Feb. 9, 2022) (2022 U.S. Dist. LEXIS 23457) (Opinion & Order)

WHERE PRO SE PLAINTIFF FAILED TO ALLEGE THAT HE EXHAUSTED HIS ADMINISTRATIVE REMEDIES, COURT GRANTED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING POTENTIAL SOX AND POTENTIAL CONSUMER FINANCIAL PROTECTION ACT CLAIMS

In Alijaj v. Wells Fargo, No. 17-cv-1887 (S.D. N.Y. Feb. 9, 2022) (2022 U.S. Dist. LEXIS 23457), the court had previously granted summary judgment dismissing Plaintiff’s Title VII and Age Discrimination complaints, but not several unidentified whistleblower complaints because Defendant had not addressed those claims in the motion for dismissal. It that order, the court inferred that Plaintiff’s pro se complaint was alleging a SOX complaint. Before the court was now Defendant’s motion to dismiss the whistleblower complaints. The court granted the motion.

Although Plaintiff had still not identified the statutory basis for his whistleblower claims, the court read the pro se complaint broadly to allege violations of SOX. In addition, the court consider that Defendant’s motion also addressed the possible application of the Consumer Financial Protection Act, 12 U.S.C. § 5567, and the Dodd-Frank Act, § 78u-6.

The court granted summary judgment on the SOX complaint because Plaintiff failed to establish that he exhausted his administrative remedies. He did not allege or provide any documents to show that he filed a SOX complaint with OSHA. Nor did Plaintiff offer any facts to show that he provided information to someone in a position of authority regarding conduct that fell within the enumerated laws in §1514A(a)(1)(C). He only alleged “ethical violations” and negative portrayals in performance evaluations.

As to the CFPA claim, it was unsettled law whether failure to exhaust administrative remedies is a FRCP 12(b)(1) jurisdictional flaw, or whether dismissal must be pursued under FRCP 12(b)(6). The court found, however, that because Plaintiff failed to allege anywhere in his complaint or his in response to the summary judgment motion, that he exhausted his administrative remedies under the CFPA, the CFPA claim must be dismissed.

Similarly, as to the Dodd-Frank claim, there was no allegation by Plaintiff that he contacted the SEC, or that he engaged in the type of disclosures protected by Dodd-Frank.

Energy Reorganization Act

Peck v. Dep't of Labor, Administrative Review Board, et al., No. 21-813 (U.S. Jan. 24, 2022) (2022 U.S. LEXIS 654)

Case below: Peck v. United States DOL, 996 F.3d 224 (4th Cir., Apr. 30, 2021) (USDOL Case Nos: ARB No. 2017-0062; ALJ No. 2017-ERA-00005)

Petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit denied.

Federal Railroad Safety Act

Gilbert v. Union Pac. R.R. Co., No. 19-cv-804 (N.D. Ill. May 17, 2022) (2022 U.S. Dist. LEXIS 88503; 2022 WL 1556101) (Memorandum Opinion and Order)

KNOWLEDGE ELEMENT OF FRSA RETALIATION CLAIM; DISTRICT COURT FINDS THAT IN THE SEVENTH CIRCUIT, IT IS SUFFICIENT IF THE RAIL CARRIER KNEW OF PLAINTIFF’S REQUEST FOR MEDICAL LEAVE AND DIRECT KNOWLEDGE OF DECISIONMAKERS ON ADVERSE EMPLOYMENT ACTION IS NOT REQUIRED; COURT MAKES ALTERNATIVE FINDING OF SUFFICIENT CIRCUMSTANTIAL EVIDENCE OF KNOWLEDGE TO SURVIVE SUMMARY JUDGMENT

CONTRIBUTORY FACTOR CAUSATION; PLAINTIFF’S OBSERVATION OF MARKED CHANGE IN SUPERVISOR’S ATTITUDE AFTER HE REPORTED INJURY AND REQUESTED MEDICAL LEAVE -- FROM ASSURING HIM THAT HE HAD DONE NOTHING WRONG IN DEFENDING HIMSELF IN AN ALTERCATION, TO FINDING THAT HIS ROLE IN THE ALTERCATION WARRANTED TERMINATION – WAS SUFFICIENT IN ITSELF TO SURVIVE MOTION FOR SUMMARY JUDGMENT

In Gilbert v. Union Pac. R.R. Co., No. 19-cv-804 (N.D. Ill. May 17, 2022) (2022 U.S. Dist. LEXIS 88503; 2022 WL 1556101), the court denied Defendant’s motion for summary judgment on Plaintiff’s FELA and FRSA claims. The court ruled on the motion based on the facts in the light most favor to Plaintiff.

Plaintiff worked as a conductor on commuter train, and was injured in an altercation while removing an unruly passenger. During the altercation, Plaintiff punched the passenger after the passenger had chest bumped him and continued to advance on Plaintiff. Plaintiff was transported to a hospital for a CTS scan to evaluate a head injury, and the trainmaster informed Defendant’s Director of Road Operations about the incident and the hospitalization, who in turn relayed the information to Defendant’s Superintendent of Operations – who visited Plaintiff in the hospital and told him that he had done nothing wrong as he was merely defending himself. After discharge, Plaintiff went to Defendant’s office and spoke to a risk management representative who completed an injury report stating that Plaintiff had sustained injuries and received treatment.

Plaintiff then discussed the incident with the Director of Road Operations who also said Plaintiff had done nothing wrong by defending himself, and that they would see each other on Monday. Plaintiff indicated to this official that he was not injured. Plaintiff also spoke to his supervisor, who completed a manager’s accident/injury report stating that Plaintiff had sustained injuries and received treatment. That night, Defendant’s managers determined that the incident merited a formal investigation. The next day (a Saturday), Plaintiff went to a care facility and was told by a physician that he should not return to work due to his injuries. The following day, Plaintiff requested medical leave, which was temporarily approved pending paperwork. Later that day, however, when Plaintiff called in for relief from duty on Monday, the paperwork had not been received and he was told that he would have to use sick time. After advising his managers that he was seeking a medical leave of absence, their attitude toward him and the incident changed, and he was pulled from service. Defendant has a “zero tolerance” policy concerning violence in the workplace. An investigation ensued, and Plaintiff was terminated from employment. Later, the National Mediation Board found that the evidence did not support a finding that Plaintiff violated Defendant’s work rules, and Plaintiff was reinstated.

Defendant first argued in its summary judgment motion that there was no evidence that the supervisors who decided to terminate Plaintiff knew that he had reported his injury or requested a medical leave of absence, citing caselaw from other circuits that such knowledge must be tied to the decisionmaker involved in the unfavorable personnel action. The court, however, determined that the standard in the Seventh Circuit is that “an FRSA retaliation plaintiff must show only that ‘the rail carrier knew of the [plaintiff's] complaint.’” Slip op. at 12, citing and quoting Armstrong v. BNSF Ry. Co., 880 F.3d 377, 381 (7th Cir. 2018) (emphasis added). The court stated:

Circuit law therefore does not require Gilbert to prove, as part of his prima facie case, that the particular individuals who terminated him knew about his injury report. And it is undisputed that Union Pacific as an entity knew of Gilbert's injury report and request for medical leave, both of which he made through official Union Pacific channels.

Id. (records citation omitted). The court also ruled that even if knowledge was required on the part of the decision-making supervisors, the record contained sufficient circumstantial evidence to survive summary judgment.

Defendant also moved for summary judgment on the ground that there was no evidence that his injury report or leave request played any role in his termination. The court, however, found that Plaintiff’s observation that his supervisors’ “behavior changed markedly after he reported his injury and requested a medical leave, from assuring him that he had done nothing wrong and had nothing to worry about to determining that his role in the incident warranted termination” (Id. at 13)—was sufficient in itself to survive summary judgment. The court also stated that “the fact that the National Mediation Board found that Gilbert had not violated any rule that he had been terminated for violating . . . , further suggests that Union Pacific's justification for firing him was pretextual.” Id. at 13-14 (record citation omitted).

Similarly, the court found that there was sufficient evidence that Plaintiff’s evidence had not been initially considered to have violated the zero-tolerance policy because Plaintiff had been defending himself, that Defendant could not show by clear and convincing evidence (at least on summary judgment) that it would have terminated Plaintiff’s employment regardless of his injury report.

Williams v. MTA Metro N. R.R., No. 20-3418 (2d Cir. Apr. 8, 2022) (unpublished) (2022 U.S. App. LEXIS 9451) (Summary Order)

U.S. District Court Case: Williams v. Metro-North R.R., Nos. 17-CV-3092, 17-CV-9167, 18-CV-7793, 17-CV-7758, 18-CV-8350 (S.D. N.Y. Mar. 27, 2020) (2020 U.S. Dist. LEXIS 53914; 2020 WL 1489832)

APPEAL SUMMARILY DISMISSED WHERE PRO SE PLAINTIFF FAILED TO PRESENT ANY ARGUMENTS IDENTIFYING ANY CLAIM OF ERROR BY THE DISTRICT COURT

In Williams v. MTA Metro N. R.R., No. 20-3418 (2d Cir. Apr. 8, 2022) (unpublished) (2022 U.S. App. LEXIS 9451), the Second Circuit summarily affirmed the judgment of the U.S. district court dismissing Plaintiff’s pro se suit that cited claims under the FRSA, 49 U.S.C. § 20109, Title VII of the Civil Rights Act, a New York state law, and a due process claim under the 14th Amendment. On appeal, Plaintiff presented no arguments in his opening or reply briefs identifying any claim of error on the district court's part. Rather, he only provided a collection of documents mostly related to the district court proceeding. The court found that the collection of documents failed to comply even minimally with Rule 28(a), and noted that, even though pro se litigants are offered a high degree of solicitude, it was not the court’s role to identify arguments on their behalf. The court determined that the plaintiff had thus forfeited any argument that the district court erred in dismissing his claims.

Matta v. Kansas City Southern Railway Co., No. 20-CV-48 (S.D. Tx. Mar. 30, 2022) (2022 U.S. Dist. LEXIS 87407) (Memorandum and Order)

SUFFICIENCY OF PLEADING; CLAIM PURPORTEDLY RAISED FOR FIRST TIME IN RESPONSE TO MOTION FOR SUMMARY JUDGMENT; THE COURT FOUND THE COMPLAINT TO BE ADEQUATE NOTICE OF THE CLAIM WHERE, ALTHOUGH FRSA, 49 U.S.C. § 20109(a)(4) HAD NOT BEEN EXPRESSLY CITED IN THE COMPLAINT, THE COMPLAINT RECITED RELEVANT PROTECTED ACTIVITY AND ADVERSE EMPLOYMENT ACTION, AND THE RESPONSE TO THE SUMMARY JUDGMENT MOTION DID NOT EXCEED THE LEGAL CLAIMS AND FACTS ASSERTED IN THE ADMINISTRATIVE COMPLAINT

One of Defendant's arguments was that the (a)(4) claim should be dismissed because it was raised for the first time in his summary judgment response. The court, however, analyzed Plaintiff’s complaint and found that it was adequate to plead such a claim. Although (a)(4) was not explicitly cited, the complaint laid out the alleged protected activity and specified that Plaintiff suffered adverse employment action because of this activity. The court also noted that Plaintiff’s response to the summary judgment motion had raised no new factual theory, and had not argued outside the legal claims or facts asserted in the administrative stage of the case.

PROTECTED ACTIVITY; WHETHER A PERSONAL ILLNESS IS A HAZARDOUS SAFETY OR SECURITY CONDITION UNDER FRSA, 49 U.S.C. § 20109(b)(1)(A); COURT REJECTS ARB’S CIESLICKI AND INGRODI DECISIONS AND INSTEAD ADOPTS REASONING OF OTHER DISTRICT COURTS THAT A SELF-REPORT OF A WORK-RELATED ILLNESS DOES NOT CONSTITUTE A REPORT OF A HAZARDOUS SAFETY OR SECURITY CONDITION UNDER (b)(1)(A)

In Matta v. Kansas City Southern Railway Co., No. 20-CV-48 (S.D. Tx. Mar. 30, 2022) (2022 U.S. Dist. LEXIS 87407), Defendant filed a motion for summary judgment on a variety of procedural and substantive grounds on Plaintiff’s FRSA retaliation claim. During a hearing on the motion, Plaintiff clarified that he was bringing claims under the FRSA, 49 U.S.C. §§ 20109(a)(4) and 20109(b)(1)(A). The protected activity for the (a)(4) claim was notification of Plaintiff’s manager of a personal illness consisting of feeling fatigued, exhausted, and disoriented. The basis for the (b)(1)(A) claim was “(1) the same report of a personal illness and (2) [Plaintiff’s refusal] to release a railcar that had not been properly tested after he reported to his supervisor that an airbrake test had not been conducted.”

One of Defendant’s arguments was that Plaintiff’s personal illness did not constitute a “hazardous safety or security condition.” The Fifth Circuit had not yet addressed this question. Plaintiff cited two ARB decisions, Cieslicki v. Soo Line R.R. Co., ARB No. 2019-0065, ALJ No. 2018-FRS-00039, at *4 n.5 (ARB June 4, 2020) and Ingrodi v. CSX Transp., ARB No. 2020-0030, ALJ No. 2019-FRS-00046, at *4 (ARB Mar. 31, 2021), holding that (b)(1)(A) does apply to an employee’s report of a personal impairment. The court, however, agreed with the contrary analysis of the courts in Williams v. Illinois Central Railroad Co., No. 3:16-CV-00838, 2017 WL 2602996 (S.D. Miss. June 15, 2017) and Weber v. BNSF Railway Co.¸ No. 4:18-cv-00367, 2019 WL 9100375, at *8 (N.D. Tex. Dec. 6, 2019). The court found that

. . . to interpret (b)(1)(A) to include a report of a work-related illness would make the language of (a)(4) superfluous. Furthermore, it does not undermine the safety goals of the FRSA to interpret (b)(1)(A) as not including self-reports of work-related illness because that activity is protected by (a)(4). In conclusion, given the construction of the statute, the Court agrees with KCSR that Matta’s self-report of a work-related illness does not constitute a report of a hazardous safety or security condition under (b)(1)(A). KCSR’s motion for summary judgment is granted on this ground.

Slip op. at 13.

PROTECTED ACTIVITY; COURT ADOPTS REASONING OF ZIPARO AND MONOHON THAT GOOD FAITH REPORT OF HAZARDOUS SAFETY OR SECURITY CONDITION UNDER 49 U.S.C. § 20109(b)(1)(A) NEEDS TO ONLY BE SHOWN TO HAVE BEEN SUBJECTIVELY REASONABLE

During a hearing on the motion, Plaintiff clarified that he was bringing claims under the FRSA, 49 U.S.C. §§ 20109(a)(4) and 20109(b)(1)(A). The protected activity for the (a)(4) claim was notification of Plaintiff’s manager of a personal illness consisting of feeling fatigued, exhausted, and disoriented. The basis for the (b)(1)(A) claim was “(1) the same report of a personal illness and (2) [Plaintiff’s refusal] to release a railcar that had not been properly tested after he reported to his supervisor that an airbrake test had not been conducted.” One of Defendant’s arguments was that Plaintiff failed to establish a genuine dispute of material fact that he reported a hazardous safety or security condition “in good faith,” as required by (b)(1)(A).

The court first addressed whether a FRSA Plaintiff only needs to prove subjective belief that the report was made in good faith, or both subjective and objective belief. The Fifth Circuit had not yet addressed this question, but the Second and Eighth Circuits had recently held that good faith need only be established subjectively under (b)(1)(A). Ziparo v. CSX Transp. Inc., 15 F.4th 153, 155 (2d Cir. 2021); Monohon v. BNSF Railway Co., No. 18-3346, 2021 WL 5114271, at *5-6 (8th Cir. Nov. 4, 2021). After reviewing those decisions and the statutory language, the court agreed that the employee need “only show that the employee honestly believed that they were reporting a hazardous safety or security condition. Good faith under (b)(1)(A), is therefore to be interpreted subjectively, and not objectively.” Slip op. at 17.

Turning to the instant case, the only remaining claim under (b)(1)(A) was that Plaintiff made a good faith report of a hazardous safety or security condition when he refused to release a railcar without first completing a necessary brake test. The court reviewed the evidence on the point, and found that it was sufficient to create genuine dispute of material fact.

CONTRIBUTING FACTOR CAUSATION; COURT REJECTS RULING IN KUDUK THAT A PLAINTIFF NEEDS TO ESTABLISH INTENTIONAL RETALIATION

Defendant argued that Plaintiff could not show protected activity was a contributing factor to the decision to discipline him under either (a)(4) or (b)(1)(A). urging the court to adopt the Eighth Circuit’s reasoning in Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014), requiring a showing of intentional retaliation. The court reviewed the decisions of other district courts within the Fifth Circuit and other circuits, and the Fifth Circuit’s precedent on analogous Sarbanes-Oxley cases, and determined that “a plaintiff need not show intentional retaliation to satisfy the requirements of the ‘contributing factor’ element of a prima facie case of retaliation under the FRSA.” Slip op at 21. Reviewing the evidence, the court found that a genuine issue of material fact existed on contributory factor causation.

Parker (Personal Representative of Estate of Rookaird) v. BNSF Ry. Co., No. 14-cv-00176 (W.D. Wash. Mar. 28, 2022) (2022 U.S. Dist. LEXIS 55654) (Findings of Fact and Conclusions of Law)

USDOL Case: OALJ No. 2014-FRS-00009

AFFIRMATIVE DEFENSE; DEFENDANT MET THE CLEAR AND CONVINCING EVIDENCE BURDEN OF PROOF WHERE, THE EVIDENCE SHOWED THAT PLAINTIFF’S PROTECTED ACTIVITY CONTRIBUTED VERY LITTLE TO THE DECISION TO FIRE PLAINTIFF, AND THAT PLAINTIFF WOULD HAVE BEEN FIRED FOR GROSS DISHONESTY AND INSUBORDINATION IN THE ABSENCE OF THE PROTECTED ACTIVITY; THE PROTECTED ACTIVITY (CONDUCTING AN AIR TEST) WAS ROUTINE AND DID NOT RESULT IN THE FIRING OF TWO WORKERS WHO HAD ALSO CONDUCTED A TEST, BUT WHO UNLIKE PLAINTIFF, HAD NOT BEEN CONSIDERED TO HAVE ACTED DISHONESTLY OR INSUBORDINATELY

In Parker (Personal Representative of Estate of Rookaird) v. BNSF Ry. Co., No. 14-cv-00176 (W.D. Wash. Mar. 28, 2022) (2022 U.S. Dist. LEXIS 55654), Rookaird sued Defendant BNSF Railway Company ("BNSF") under 49 U.S.C. § 20109(d)(3), alleging that the railway violated the anti-retaliation provision of the Federal Railroad Safety Act ("FRSA"). A jury had found in Rookaird’s favor, but the Ninth Circuit vacated the jury verdict and remanded for re-trial on certain issues. On remand, the parties stipulated to a bench trial. The district court found that Rookaird was fired, in part, for his inefficiency in getting cars moved. The court found that the inefficiency was partly caused by Rookaird’s decision to conduct an air test, and that his refusal to stop the air test was protected activity. The preponderance of the evidence was that Rookaird’s refusal to stop an air test was a contributing factor in his termination. Thus, the burden shifted to Defendant to show by clear and convincing evidence that it would have terminated Rookaird’s employment in the absence of the protected activity. The court found that Rookaird was fired for many reasons unrelated to his inefficiency, and that Defendant met the clear and convincing evidence standard.

Specifically, Rookaird was fired for gross dishonesty, having failed to sign his FRA tie-up timeslip and having falsely recorded his tie-up time. The court found that BNSF believed that this dishonesty was significant because of its federal reporting obligations and the associated potential fines. Rookaird was also fired for insubordination, having twice disobeyed a BNSF assistant superintendent’s directives to tie-up and go home, and also starting a heated argument with a coworker. The court found that both gross dishonesty and insubordination were single, dismissible violations under Defendant’s disciplinary policy.

The court also found that, although the air test was a contributing factor in the firing, it contributed very little. The supposed inefficiency was based on Rookaird and his crew working for about five-and-a-half hours before they were called in. The air test only accounted for about 20 to 40 minutes of that time. Moreover, no BNSF officer instructed Rookaird to stop the air test – evidence that the test played only a small part in BNSF’s overall decision. The court also found that the significance of the air test was undermined by its routine nature, being a test that was conducted at BNSF hundreds of times a day or more. Rookaird had conducted such air tests several times in the prior weeks without incident, which was further evidence that the test played only a small part in the termination decision. Moreover, two of crew members performed the same air test but were not fired because, unlike Mr. Rookaird, they were not insubordinate, and they did not improperly complete their tie-up timeslips. The court found that this demonstrated that, absent the air test, BNSF would have fired Mr. Rookaird anyway because of his gross dishonesty and insubordination.

Chamberlin v. BNSF Ry. Co., No. 22-cv-00005 (N.D. Cal. Mar. 10, 2022) (2022 U.S. Dist. LEXIS 42887) (Order Denying Motion to Dismiss)

USDOL Case: OALJ No. 2021-FRS-00006

FRSA KICK-OUT PROVISION; ALTHOUGH PLAINTIFF HAD ENGAGED IN THE ADMINISTRATIVE PROCESS FOR SEVERAL YEARS AND HAD ONLY KICKED-OUT TO FEDERAL COURT SHORTLY PRIOR TO THE SCHEDULED HEARING BEFORE AN ALJ, THE COURT DENIED THE RAILROAD’S FRCP 12(b)(6) MOTION TO DISMISS ON THE BASIS OF WAIVER OR LACHES; THE COURT NOTED THAT DEFENDANT HAD CITED NO AUTHORITY TO SUPPORT ITS MOTION, AND THAT--EVEN IF SUCH AUTHORITY EXISTED--WAIVER AND LACHES ARE FACT-INTENSIVE AND ILL-SUITED FOR CONSIDERATION AT THE PLEADING STAGE

In Chamberlin v. BNSF Ry. Co., No. 22-cv-00005 (N.D. Cal. Mar. 10, 2022) (2022 U.S. Dist. LEXIS 42887), Plaintiff had filed a FRSA retaliation complaint with OSHA. Plaintiff’s right to “kick-out” to federal court accrued in February 2018, but he proceeded with the administrative complaint. OSHA found in his favor in October of 2020. Defendant requested an ALJ hearing, and the parties commenced discovery. Plaintiff had been proceeding pro se. He averred that he first learned of the right to kick-out in late 2021 in conversations with an attorney he had retained earlier that year. Plaintiff filed the district court action in January 2022.

Defendant moved to dismiss under FRCP 12(b)(6), contending that Plaintiff waived his kick-out right and/or that the complaint was barred by laches. The court noted that it was unclear that the filing of an action in federal court served the statutory purpose of allowing employees to avoid undue delay in administrative proceedings, given that the hearing before the ALJ had been scheduled to commence the prior month, and that while discovery from the administrative proceeding might speed up the litigation to some degree, it would likely be quite a while before a trial would occur. The court, however, denied the motion to dismiss on the ground that Defendant “presented no controlling or clear authority that the statutory ‘kick out’ right is subject to waiver. Even assuming it is, and/or that laches can apply in some instances, however, waiver and laches are both defenses, and are both generally fact-intensive and ill-suited for resolution at the pleading stage. Dismissal under Rule 12(b)(6) is inappropriate, and the motion is denied.” Slip op. at 3.

Grantham v. CSX Transp., Inc., No. 19-cv-00065 (S.D. Ga. Mar. 7, 2022) (2022 U.S. Dist. LEXIS 39576) (Order [denying in part and granting in part Defendant’s motion for summary judgment, and denying Plaintiff’s partial motion for summary judgment])

SUMMARY JUDGMENT ON CONTRIBUTORY FACTOR CAUSATION; COURT FINDS THAT INTENTIONAL RETALIATION STANDARD APPLIES, BUT THAT PLAINTIFF'S VERSION OF EVENTS WAS SUFFICIENT TO PLEAD A PRIMA FACIE CASE OF RETALIATORY MOTIVE

SUMMARY JUDGMENT ON TEMPORARY REMOVAL FROM SERVICE WITHOUT LOSS IN PAY OR BENFITS; SUCH WAS NOT SHOWN TO BE AN ADVERSE ACTION MERELY BECAUSE PLAINTIFF FELT DISTRAUGHT OVER AN INVESTIGATION, WHERE HE WAS IMMEDIATELY EXONERATED AFTER AN EXPEDITED HEARING; CO-WORKER'S SUBJECTIVE BELIEF THAT DEFENDANTS MEANT TO SEND A MESSAGE THAT IT WOULD TARGET EMPLOYEES WHO ISSUE A BAD RAILCAR ORDER WAS INSUFFICIENT

SUMMARY JUDGMENT GRANTED AS TO INDIVIDUAL OFFICIALS OF THE RAILROAD WHERE IT WAS UNDISPUTED THAT THEY WERE NOT THE ULTIMATE DECISION MAKERS ON THE ADVERSE ACTIONS TAKEN; FACT THAT MANAGERS COULD ISSUE ASSESSMENTS OF RULES VIOLATIONS, STANDING ALONE, WAS INSUFFICIENT TO IMPOSE LIABILITY AS DECISION MAKERS

SUMMARY JUDGMENT ON PUNITIVE DAMAGES GRANTED WHERE THERE WAS NO EVIDENCE THAT DEFENDANTS CONSCIOUSLY DISREGARDED PLAINTIFF’S STATUTORILY PROTECTED RIGHTS, AND WHERE DEFENDANTS HAD TAKEN MULTIPLE ROUNDS OF TRAINING ABOUT FRSA PROTECTIONS

In Grantham v. CSX Transp., Inc., No. 19-cv-00065 (S.D. Ga. Mar. 7, 2022) (2022 U.S. Dist. LEXIS 39576), Plaintiff was a railcar inspector. During a brake inspection that was scheduled for completion by 2:00 pm so that the train could depart at 2:30 pm, a co-worker had to depart, leaving Plaintiff alone to complete the inspection. A senior general foreman assigned two other inspectors to assist. What transpired when the two inspectors arrived was in dispute, but the parties agreed that they concluded that their help was not needed. The foreman arrived at 2:10 pm and learned that the inspection was not yet completed. Plaintiff finished the inspection at 2:30 pm, flagging the railcar as defective, which resulted in delaying the train's departure until 4:32 pm. The foreman entered a rules violation assessment against Plaintiff for conducting an inefficient inspection (essentially for declining the help). A CSX hearing officer found that the assessment had a sufficient factual ground. The Chief Mechanical Officer reviewed the evidence and findings, and found a rules violation. The Hearing Officer then assessed Plaintiff with three-day suspension.

A day before the hearing, the Senior General Foreman and CSX's General Foreman drew a conclusion that Plaintiff had made a statement that they construed as a threat of workplace violence. Plaintiff was temporarily removed while the statement was investigated. Four days later, Plaintiff was exonerated because another employee took responsibility for the statement.

Plaintiff then filed the instant FRSA suit against CSX and three employees, alleging that the charge of inefficiency was pretext for retaliation for Plaintiff's flagging the railcar as defective, and that the temporary suspension was further retaliation. The three employees named as Defendants were the manager who entered the delay assessment, the manager who entered an assessment against Plaintiff for the statement construed as a threat, and the CSX hearing officer who conducted the delay assessment hearing.
The parties both filed motions for summary judgment.

Retaliatory motive

The first point of dispute was whether the FRSA’s causation standard requires proof of retaliatory animus to show a prima facie case of intentional retaliation, or whether temporal proximity is sufficient to establish "contributory factor" causation. Plaintiff argued that, for purposes of surviving a motion for summary judgment, it was sufficient to rely on temporal proximity alone. Defendant argued that several circuits require proof of retaliatory animus.

The court noted that the 11th Circuit had not yet addressed the question, and that there was a split among other circuit courts and the ARB on the question. After analyzing precedent and the parties' arguments, the court determined that the intentional retaliation standard applied to the case, especially since it involved an employee whose normal job duties regularly involved protected conduct. The court, however, found that a reasonable juror could credit Plaintiff's version of events to show retaliatory motive, and thus that Plaintiff had established a prima facie case sufficient at the present stage of the litigation. The court also determined that, taking all reasonable inferences in Plaintiff's favor, CSX could not show clear and convincing evidence that it would have still assessed the rules violation absent Plaintiff reporting the defective railcar.

Temporary suspension without loss in pay or benefits; affidavit based on information and belief insufficient

The second point of dispute was whether the temporary removal after the comment erroneously attributed to Plaintiff was an adverse action. Defendants cited 11th Circuit authority that, to rise to the level of adverse action, the act must be materially adverse -- and that the mere threat of termination is not an adverse action when the plaintiff is ultimately not terminated. Here, while Plaintiff was temporarily removed from service, he did not lose pay or benefits, and was immediately exonerated after an expedited hearing. Plaintiff argued that he was distraught when pulled out of service, but cited no authority showing that being distraught over an investigation in which the employee is ultimately exonerated is considered an adverse action. Here, Plaintiff could only point to a declaration from a co-worker opining that Defendant was sending a message that it would target those who bad order cars. The court determined that the co-worker's affidavit was based on his own subjective belief, and that the 11th Circuit has held that affidavits based upon information and belief are insufficient to withstand a motion for summary judgment. The court determined that because Plaintiff had no other support to show that the investigation was an adverse action, Defendants' motion for summary judgment would be granted on this count.

Individuals named as Defendants, who were not the ultimate decisionmakers

The third point of dispute was whether the individual Defendants are liable as decision-makers. The court found that it was undisputed that these three Defendants were not decision-makers with regard to the adverse actions against Plaintiff. The court noted that Plaintiff had cited no authority showing that the mere ability to issue an assessment to be investigated showed that the individual Defendants were “decision-makers.” The court thus dismissed the three individuals as Defendants.

Punitive damages not warranted where there was no evidence of a conscious disregard of FRSA protected rights

The fourth point of dispute was whether punitive damages were warranted. The court found it clear from the record that there was no evidence that Defendants consciously disregarded Plaintiff’s statutorily protected rights under the FRSA. the court also noted Defendants’ multiple rounds of training to protect against such disregard of FRSA protected rights. The court thus granted summary judgment in favor of Defendants on liability for punitive damages.

Pfeifle v. Portland Terminal R.R. Co., No. 3:19-cv-01436 (D. Or. Jan. 18, 2022) (2022 U.S. Dist. LEXIS 8880; 2022 WL 154678) (Opinion and Order)

DISCOVERY; ATTORNEY-CLIENT PRIVILEGE IS NOT INVOKED MERELY BECAUSE AN ATTORNEY WAS COPIED ON AN E-MAIL

DISCOVERY; WORK-PRODUCT PRIVILEGE APPLIES TO DOCUMENT PREPARED IN ANTICIPATION OF LITIGATION BY ANOTHER PARTY, OR THE OTHER PARTY’S REPRESENTATIVE SUCH AS A GENERAL MANAGER OR A MEMBER OF A BOARD OF DIRECTORS; ITS APPLICATION DOES NOT REQUIRE AN ATTORNEY TO BE INVOLVED

DISCOVERY; COURT DOES NOT HAVE THE POWER TO COMPEL AN EMPLOYER TO PRODUCE FOR DEPOSITION FORMER EMPLOYEES, OVER WHOM IT NO LONGER HAS CONTROL; A PLAINTIFF, HOWEVER, MAY SUBPOENA SUCH EMPLOYEES REGARDLESS OF THEIR CURRENT EMPLOYMENT STATUS WITH THE DEFENDANT

In Pfeifle v. Portland Terminal R.R. Co., No. 3:19-cv-01436 (D. Or. Jan. 18, 2022) (2022 U.S. Dist. LEXIS 8880; 2022 WL 154678), the court addressed two motions to compel filed by Plaintiff in his FELA/FRSA case. This casenote addresses some of the noteworthy rulings.

Emails – mere copying of attorney does not trigger attorney-client privilege; work-product privilege, however, applies to parties or their representatives

Plaintiff sought production of three emails from Defendant's privilege log. Defendant first argued that emails copied to its attorney were covered by attorney-client privilege on the ground that the sender was its General Manager; that disciplining employees such as Plaintiff is part of his corporate responsibilities; and the fact that Defendant’s attorney was copied on the email showed awareness that the communications related to the furnishing of legal advice. The court was not persuaded, writing:

Even so, simply copying the company's attorney does not bring a communication within the ambit of the attorney-client privilege. See United States v. Heine, No. 3:15-cr-238-SI, 2016 U.S. Dist. LEXIS 145967, 2016 WL 6138245, at *2 (D. Or. Oct. 21, 2016) (quoting Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 630 (D. Nev. 2013) ("[T]he court agrees that merely copying or 'cc-ing' legal counsel, in and of itself is not enough to trigger the attorney-client privilege. Instead, each element of the privilege must be met when the attorney-client privilege is being asserted."). Here, Defendant has made no showing whatsoever that the communication was made for the purpose of securing legal advice from the attorney. This same reasoning applies with equal or greater force to the remaining email, which Defendant does not argue was sent to counsel and about which Defendant has not provided any detail.

Slip op. at 5-6.

The court, however, found that all three emails were protected by the work-product doctrine, as they were all sent after Plaintiff filed his lawsuit, and all regarded the lawsuit. Although the e-mails were from Defendant’s General Manager to the Board, none of whom were attorneys, the court found this was immaterial because work-product protection under FRCP 26(b)(3)(A) extends to documents prepared in anticipation of litigation by another “party,” or the other party’s representative.

Log of personal injury claims – conclusory assertion that HIPAA would be violated

Plaintiff also sought production of a BNSF log of employee personal injury claims and lawsuits involving switches at the same locations where Plaintiff worked and was injured. Defendant represented that the log contained four types of relevant claims. Defendant’s privilege log listed this information as confidential or privileged information about persons not party to the lawsuit, citing HIPAA and other privacy laws. The court found that Defendant need not produce the logs on a claim that was unrelated to the instant lawsuit, and on a claim that was outside the scope of the motion to compel. As to the other two claims, Defendant had produced the names of two employees involving those similar claims -- but Plaintiff requested the log itself. The court noted that Defendant’s assertion that unredacted production could violate HIPAA was conclusory, and that Defendant had not argued that it was a covered entity under HIPAA. The court thus granted the motion to compel as to the two related claim entries on the log. The Court stated that Defendant could redact PII not relevant to the case, such as dates of birth or Social Security numbers.

Depositions – Former Employees

Plaintiff’s motion to compel asserted that Defendant refused to produce certain employees for deposition. Defendant represented that two of persons Plaintiff sought to depose were former employees. The court determined that Plaintiff was free to depose these witnesses regardless of their employment status with Defendant – but that the court could not compel Defendant to produce witnesses over whom it has no authority. The court said that Plaintiff could subpoena the witnesses.

McClement v. Port Authority Trans-Hudson Corp., No. 11-cv-06839 (D. N.J. Jan. 12, 2022) (unpublished) (2022 U.S. Dist. LEXIS 5926) (Opinion)

PROPER PLEADING; SUMMARY JUDGMENT GRANTED WHERE THE FEDERAL COMPLAINT ALLEGED A FRSA 20109(a)(4) VIOLATION, BUT THE ADMINISTRATIVE COMPLAINT BEFORE OSHA HAD BEEN BASED ON A 20109(c)(2) CLAIM; THUS PLAINTIFF HAD NOT EXHAUSTED HER ADMINISTRATIVE REMEDIES AS TO A SUBSECTION (a)(4) CLAIM

In McClement v. Port Authority Trans-Hudson Corp., No. 11-cv-06839 (D. N.J. Jan. 12, 2022) (unpublished) (2022 U.S. Dist. LEXIS 5926), Plaintiff had amended a multi-count federal court complaint to allege retaliation under FRSA, 49 U.S.C. § 20109(a)(4)—that is, retaliation for, inter alia, notifying a carrier of a work-related injury or illness. Plaintiff’s earlier complaint with OSHA, however, had been based on having been taken out of service for insubordination for going to a doctor’s appointment. OSHA’s letter informing Defendant of the allegations established that this is the allegation that OSHA understood the administrative complaint to be about. The court found that this was a 49 U.S.C. § 20109(c) complaint—that is, protection to an employee for, inter alia, “following orders or a treatment plan of a treating physician.” 49 U.S.C. § 20109(c)(2). The court found that Plaintiff thus had not exhausted her administrative remedies as to a subsection (a)(4) claim, and thus granted summary judgment in favor of Defendant on the FRSA count.

Carlson v. BNSF Ry. Co., No. 19-cv-1232 (D. Minn. Jan. 4, 2022) (2022 U.S. Dist. LEXIS 1159; 2022 WL 37468) (Order)

USDOL Case: ALJ No. 2019-FRS-00024

SUMMARY JUDGMENT ON CONTRIBUTORY FACTOR CAUSATION GRANTED WHERE, ALTHOUGH THERE WAS TEMPORAL PROXIMITY BETWEEN THE PROTECTED ACTIVITY OF REPORTING AN INJURY AND TERMINATION FOR MAKING A FALSE REPORT, THERE WAS INSUFFICIENT OTHER EVIDENCE TO SUPPORT AN INFERENCE OF RETALIATORY MOTIVE

In Carlson v. BNSF Ry. Co., No. 19-cv-1232 (D. Minn. Jan. 4, 2022) (2022 U.S. Dist. LEXIS 1159; 2022 WL 37468), Plaintiff’s complaint contained three counts, one of which alleged that Defendant terminated his employment in violation of the Federal Rail Safety Act, 49 U.S.C. § 20109 for reporting unsafe working conditions. The court granted Defendant’s motion for summary judgment dismissing the FRSA count.

Plaintiff had reported that he sustained injuries while working as a conductor when the train traveled over rough tracks in two locations. Defendant instituted a disciplinary investigation to determine whether Plaintiff had falsely reported a personal injury. After a hearing, Defendant found that Plaintiff had been dishonest and falsely reported a personal injury in violation of BNSF’s rules. Defendant subsequently terminated Plaintiff’s employment.

Defendant argued that summary judgment should be granted because there was no evidence that Plaintiff’s protected activity was a contributing factor in the termination decision. It was undisputed that the contributory factor causation element of Plaintiff’s FRSA claim was entirely based on circumstantial evidence.

The court noted the temporal proximity between the filing of the injury report and the termination, and that such could support an inference of retaliatory motive—provided that additional circumstantial evidence of a retaliatory motive supported the inference.

Plaintiff argued that an inference of contributory factor causation was supported by Defendant’s “shifting explanations” for the termination decision. Plaintiff pointed to an e-mail exchange among Defendant’s managers in which they discussed multiple possible rules violations to investigate. The court, however, noted that this e-mail exchange occurred before the investigation had begun when Defendant had an incomplete understanding of the circumstances, and was determining whether and on what grounds to investigate its suspicion that Plaintiff lied. The court noted that Defendant did not reach its disciplinary decision—let alone the basis for such—until the investigation concluded more than two months later. After that point, Defendant did not shift its explanation that the termination was based on Plaintiff’s dishonestly when reporting a personal injury. Because the record did not contain evidence of “shifting explanations,” the court found that a reasonable jury could not reasonably infer pretext.

Plaintiff argued that pretext could be inferred based on Defendant’s inconsistent application of its policies. The court, however, was not persuaded by this argument as (1) the examples of purportedly inconsistent application of rules were based on rules that did not pertain to the dishonesty/false-reporting policy on which the termination was based; and (2) evidence that Defendant conducted 162 investigations on the same rule with only 14 resulting in terminations lacked sufficient details to make meaningful comparisons to the investigation of Plaintiff.

Plaintiff also argued that Defendant’s antagonism and hostility toward his filing of a personal-injury report supported a reasonable inference that termination for dishonesty was a pretext. The court cited caselaw holding that a plaintiff must demonstrate that the individuals who decided to terminate him showed discriminatory animus, as opposed to other employees. Here, Plaintiff pointed to a co-worker’s slow response to the injury report, and a terminal manager’s dismissiveness about the alleged injury and discouragement to Plaintiff to file a personal injury claim. The court, however, found no evidence that these persons were in involved in the termination decision. Plaintiff also pointed to an email exchange in which one supervisor questioned whether Defendant should “take a run at” Plaintiff or “go after” him for possible rule violations. The court, however, found that—when viewed in context—these stray remarks were about whether to commence an investigation for lying, and did not reflect animus toward Carlson for filing a personal-injury report. Nor did the email directly relate to the decision to terminate Plaintiff’s employment more than two months later. The court found that a jury could not reasonably infer pretext from this evidence.

Safe Drinking Water Act

Onysko v. Walsh, Nos. 21-9529 & 21-9530 (10th Cir. Apr. 28, 2022) (unpublished) (2022 U.S. App. LEXIS 11482; 2022 WL 1251071) (Order and Judgment)

USDOL Cases: ARB No. 2019-0042; ALJ Nos., 2017-SDW-00002 and 2018-SDW-00003

SUMMARY DECISION IN SDWA CASE AFFIRMED WHERE COMPLAINANT’S ARGUMENTS ON APPEAL DID NOT MEANINGFULLY ENGAGE WITH THE BASES FOR THE ALJ’S DECISION OR ARB’S AFFIRMANCE

TIMELINESS OF SDWA CLAIMS; DISCRETE EVENTS SUPPORTING HOSTILE WORK ENVIRONMENT CLAIM DO NOT BECOME ACTIONABLE IF TIME BARRED, EVEN IF RELATED TO ACTS ALLEGED IN TIMELY FILED CHARGES

ASPERSIONS TOWARD THE ALJ’S COLLEGE AND THE ARB MEMBERS’ ORGANIZATIONAL AFFILIATIONS, WITHOUT MORE, DID NOT SHOW PERSONAL BIAS

In Onysko v. Walsh, Nos. 21-9529 & 21-9530 (10th Cir. Apr. 28, 2022) (2022 U.S. App. LEXIS 11482; 2022 WL 1251071), the ARB had affirmed the ALJ's D&O granting summary decision dismissing Onysko’s SDWA retaliation complaint. On appeal, the Tenth Circuit affirmed the ARB in an unpublished decision, finding that Onysko’s arguments did not "meaningfully engage with the basis for the ALJ's grant of summary decision or the Board's affirmance of that decision."

Onysko first argued that the court owed no deference to the ALJ or ARB decisions under Mead and Skidmore. The court noted, however, that these decisions concerned deference to an agency's interpretation of federal statutes, while Onysko's appeal did not present an issue of statutory interpretation.

The court found that the ALJ and ARB decisions were correct as to timeliness. Onysko had alleged 87 retaliatory acts, but 81 of them occurred more than 30 days prior to the SDWA complaint, and were untimely. Although Onysko argued that he intended to file a single hostile work environment claim, the court stated that it had previously rejected this theory as a means to avoid the statute of limitations. The court also found no error in the ARB's determination not to consider Onysko's "single claim" theory, because that theory had not been presented before the ALJ. The court further found that Onysko's briefing had characterized each alleged adverse employment action as distinct from others.

Onysko argued that supervisors and state investigators erred in finding that he had engaged in abusive conduct justifying his termination. The court was not persuaded because what it important is that the supervisor had a good faith belief in the accusations that Onysko had engaged in harassing and abusive conduct, even if that belief later turned out to be erroneous.

The court rejected Onysko's assertion that the ALJ was biased against him because the ALJ had attended Brigham Young University as an undergraduate, and two of the three ARB members were members of the Federalist Society. The court found aspersions toward the ALJ’s college and the Board members’ organizational affiliations, without more, did not show personal bias sufficient to disqualify a hearing officer or to show that the administrative hearing had been unfair

The court found no merit to Onysko's assertion that the ARB improperly admitted the OSHA findings as evidence against his whistleblower claim, where all the ARB did was recount the procedural history of the action

Onysko faulted the ALJ for denying him certain discovery, but forfeited the argument by failing to point with any specificity to the ALJ ruling he was seeking to challenge. The court also found that the discovery sought appeared to be related to adverse employment actions that the ALJ concluded were time-barred, so any alleged error in this respect had been harmless.

Sarbanes-Oxley Act

Harmon v. Honeywell Intelligrated, No. 1:19-cv-670 (S.D. Oh. Mar. 21, 2022) (2022 U.S. Dist. LEXIS 50070; 2022 WL 836419) (Order [denying motion for leave to file motion under seal])

USDOL Case: OALJ No. 2021-SOX-00007

MOTION FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT AND SUPPORTING DOCUMENTATION UNDER SEAL; COURT DENIES BLANKET REQUEST, BUT WITH LEAVE TO FILE MOTION THAT PERMITS SPECIFIC FINDINGS AND CONCLUSIONS JUSTIFYING SEALING THE RECORDS

In Harmon v. Honeywell Intelligrated, No. 1:19-cv-670 (S.D. Oh. Mar. 21, 2022) (2022 U.S. Dist. LEXIS 50070; 2022 WL 836419), Defendant filed a motion for leave to file its motion for summary judgment and supporting documentation under seal in Plaintiff’s employment discrimination action alleging claims under several laws, one of which was the Sarbanes-Oxley Act ("SOX"), 18 U.S.C. § 1514A.

The court noted that under a local rule, parties must obtain leave of the court, and show good cause, to file documents under seal. The court noted that a strong presumption in favor of openness to court records exists, and wrote:

To justify sealing records, the proponent must demonstrate: "(1) a compelling interest in sealing the records; (2) that the interest in sealing outweighs the public's interest in accessing the records; and (3) that the request is narrowly tailored." Kondash v. Kia Motors Am., Inc., 767 F. App'x 635, 637 (6th Cir. 2019) (citing Shane Group, 825 F.3d at 305). The proponent must also "analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations." Shane Grp., 825 F.3d at 305-06 (quoting Baxter Intern., Inc. v. Abbott Lab'ys, 297 F.3d 544, 548 (7th Cir. 2002)).

As relevant here, the Sixth Circuit recognizes certain content-based exceptions to the presumption of openness related to "certain privacy rights of participants or third parties. . . ." Brahmamdam v. TriHealth, Inc., No. 1:19-cv-152, 2021 U.S. Dist. LEXIS 207485, 2021 WL 5005368, at *2 (S.D. Ohio Oct. 27, 2021) (quoting Brown & Williamson, 710 F.2d at 1179). In the context of civil litigation, this exception is generally limited to "only trade secrets, information covered by a recognized privilege, and information required by statute to be maintained in confidence. . . ." Id. (quoting Reese on Behalf of Fifth Third Bancorp v. Carmichael, No. 1:20-cv-886, 2020 U.S. Dist. LEXIS 217091, 2020 WL 6810921, at *1 (S.D. Ohio Nov. 16, 2020)).

The party seeking to seal court records carries the heavy burden of overcoming this presumption, and "[o]nly the most compelling reasons can justify non-disclosure of judicial records." Shane Grp., 825 F.3d at 305 (quoting In re Knoxville News-Sentinel Co., Inc., 723 F.2d 470, 476 (6th Cir. 1983)). Additionally, the Court is required to set forth specific findings and conclusions justifying the sealing of records—regardless of whether a party objects. Id. at 306.

Slip op. at 2-3.

In the instant case, Defendant sought a blanket order sealing its motion for summary judgment, the appendix of supporting exhibits, and the deposition transcript of plaintiff. Defendant argued that these documents contained confidential medical information, private personnel information, and proprietary corporate information, which under the parties’ stipulated protective order, entered by the court, required that the motion and appendix be filed under seal. The court, however, declined to issue a blanket order. The court stated:

The Court recognizes there may be a compelling interest in maintaining the confidentiality of medical records and certain personnel information, as well as proprietary corporate information. It is not the Court's prerogative to assume, however, that the entirety of every document filed in connection with the parties' briefs in this case must be sealed. To do so would reflect consideration of only the first of the three Shane Group factors. See Kondash, 767 F. App'x at 637. As the party seeking to seal these documents, defendant carries the heavy burden of overcoming the presumption of openness document-by-document with reference to specific reasons and/or legal citations. Shane Grp., 825 F.3d at 305-06. Defendant's motion must be sufficiently specific to allow the Court to, in turn, set forth specific findings and conclusions justifying the sealing of each document—regardless of whether plaintiff objects. Id. at 306.

Id. at 3-4 (footnote omitted). The court thus denied Defendant's motion to seal subject to reconsideration upon the submission of a motion consistent with the law. The court also noted that if a motion to seal is granted, Defendant must provide a redacted version for filing on the court’s docket.

Geary v. Parexel Int'l Corp., No. 19-cv-07322 (WD. Cal. Mar. 18, 2022) (2022 U.S. Dist. LEXIS 48669) (Order Granting Motion to Dismiss With Leave to Amend)

FRCP 12(b)(1) MOTION GRANTED FOR LACK OF SUBJECT MATTER JURISDICTION WHERE SOX COMPLAINANT DID NOT TIMELY REQUEST AN ALJ HEARING

In Geary v. Parexel Int'l Corp., No. 19-cv-07322 (WD. Cal. Mar. 18, 2022) (2022 U.S. Dist. LEXIS 48669), Plaintiff filed a Sarbanes-Oxley (SOX), 18 U.S.C. § 1514A complaint with OSHA in 2015. In October 2018, OSHA issued its findings and provided notice that Plaintiff had 30 days to file objections and request a hearing before an ALJ. The findings also provided notice that if no objections were filed, OSHA's findings would become final and not subject to court review. Plaintiff did not file objections or request an ALJ hearing. In November 2019, he filed a court action asserting SOX, Dodd-Frank 78u-6, and state law claims. Defendants moved to dismiss.

The court granted dismissal of the SOX claim under FRCP 12(b)(1) for lack of subject matter jurisdiction because Plaintiff's failure to timely object to OSHA's preliminary findings and to request an ALJ hearing was fatal to the claim in district court. Although Plaintiff argued that his claim could proceed under 18 U.S.C. § 1514A(b)(1)(B) because 180 days lapsed without a final decision from the Secretary, and the delay was not due to any bad faith on Plaintiff's part, Plaintiff had not addressed the requirements of 49 U.S.C. § 42121(b)(2)(A), incorporated into SOX by 49 U.S.C. § 1514A(b)(2)(A), which provide that if no party requests a hearing within 30 days of the OSHA findings, those findings are deemed final and not subject to judicial review. The court found the material facts of Plaintiff's case were undisguisable from those presented in Lebron v. American International Group, Inc., No. 09-cv-4285 (S.D.N.Y. Oct. 19, 2009) (2009 U.S. Dist. LEXIS 97303, 2009 WL 3364039).

The dismissal of the SOX claim was with prejudice because leave to amend would be futile. The court also dismissed the Dodd-Frank and state claims, but gave leave to Plaintiff to amend the Dodd-Frank complaint.

Turnbull v. JPMorgan Chase & Co., No. 21-cv-3217 (S.D. N.Y. Feb. 24, 2022) (2022 U.S. Dist. LEXIS 35660; 2022 WL 608708) (Memorandum Opinion and Order)

CONTRIBUTORY FACTOR CAUSATION; TEMPORAL PROXIMITY WAS NOT, STANDING ALONE, SUFFICIENT TO SURVIVE MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM; PLAINTIFF'S ALLEGATIONS OF RETALIATORY MOTIVE FOR HIS TERMINATION FROM EMPLOYMENT WERE ALL CONCLUSORY AND IMPLAUSIBLE

In Turnbull v. JPMorgan Chase & Co., No. 21-cv-3217 (S.D. N.Y. Feb. 24, 2022) (2022 U.S. Dist. LEXIS 35660; 2022 WL 608708), Plaintiff alleged that Defendant retaliated against him in violation of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A(a)(2). The court granted Defendant's motion to dismiss the Amended Complaint for failure to state a claim.

Plaintiff had cooperated with a DOJ investigation of allegations that Defendant's precious metals desk had engaged in illegal spoofing. After a trader had entered a guilty plea, Defendant interviewed Plaintiff. Eventually, Plaintiff was terminated for trading sequences that did not meet the bank's expectations. Plaintiff filed a SOX complaint alleging that a contributing factor in the termination was his "participation in the DOJ investigation and his disclosure to the DOJ of information about JPMorgan's serious institutional failures to provide guidance, surveillance, and enforcement on trading conduct." Slip op. at 7.

The court found that the only support for a finding that Defendant was aware of Plaintiff's cooperation with DOJ was the temporal proximity between its interview of Plaintiff and his termination from employment. Plaintiff offered no other facts supporting an interference of retaliation. Rather, the circumstances made an inference of retaliation implausible: Defendant was aware it was under intense scrutiny by the DOJ, and was cooperating with DOJ. Firing a cooperating employee because he was also cooperating would have been extremely counterproductive. Moreover, Plaintiff's own allegations made it clear that Defendant examined Plaintiff's own activities and found them questionable. Those activities formed a part of a later Deferred Prosecution Agreement Defendant entered into with DOJ. Nothing was plausibly alleged by Plaintiff that his cooperation with DOJ was a contributing factor in the termination. Plaintiff's allegations as to Defendant's motivations were completely conclusory and implausible.

The court thus granted the motion to dismiss, but without prejudice for Plaintiff to file a second amended complaint.

Alijaj v. Wells Fargo, No. 17-cv-1887 (S.D. N.Y. Feb. 9, 2022) (2022 U.S. Dist. LEXIS 23457) (Opinion & Order)

WHERE PRO SE PLAINTIFF FAILED TO ALLEGE THAT HE EXHAUSTED HIS ADMINISTRAIVE REMEDIES, COURT GRANTED DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING POTENTIAL SOX AND POTENTIAL CONSUMER FINANCIAL PROTECTION ACT CLAIMS

Similarly, as to the Dodd-Frank claim, there was no allegation by Plaintiff that he contacted the SEC, or that he engaged in the type of disclosures protected by Dodd-Frank.

Liu v. Tutor-Perini Corp., No. 21-cv-05803 (C.D. Cal. Jan. 26, 2022) (2022 U.S. Dist. LEXIS 24963) (Order Granting Motion to Dismiss)

DOL Case: OALJ Case No. 2021-SOX-00031

SOX “KICK-OUT” PROVISION; COURT DETERMINES THAT ADMINISTRATIVE EXHAUSATION BEFORE THE ALJ WAS REQURIED UNDER THE UNIQUE FACTUAL CIRCUMSTANCES; FIRST, THERE HAD BEEN A DELAY IN ISSUING A NOTICE OF DOCKETING BY OALJ; SECOND, AT THE TIME OF THE MOTION TO DISMISS THE COURT ACTION, THE ALJ HAD ALREADY SCHEDULED A HEARING; AND THIRD, CONSIDERATIONS OF JUDICIAL RESOURCES AND EFFICIENCY WARRANTED THAT THE ALJ FIRST DECIDE THE MERITS OF THE COMPLAINT

In Liu v. Tutor-Perini Corp., No. 21-cv-05803 (C.D. Cal. Jan. 26, 2022) (2022 U.S. Dist. LEXIS 24963), the district court granted Defendant’s motion to dismiss Plaintiff’s SOX complaint for failure to exhaust administrative remedies. The court noted the 180-day “kick-out” provision at 18 U.S.C. § 1514A(b), but found that Plaintiff had not exhausted his administrative remedies under the unique factual circumstances of the matter.

The court first noted that “the lack of response from the ALJ within 180-days was not an intentional choice to not issue a final decision, but rather a ‘miscommunication among’ administrative staff.” Slip op. at 7. Specifically, OALJ had docketed the case on December 10, 2020 (one day after Plaintiff had requested an ALJ hearing). Hearing nothing, Plaintiff filed the district court action on July 19, 2021. OALJ did not issue its Notice of Docketing until September 27, 2021, informing the parties that the delay between docketing and the notice had been a miscommunication among OALJ staff and not the fault of the parties. The court concluded that “Based on this factual situation, it appears that the ALJ had an intention, which unfortunately was not timely communicated to the parties, to issue a final decision on Plaintiff’s administrative appeal within the 180-day deadline.” Id.

Second, the court noted that that parties were aware that an ALJ had scheduled a hearing for April 11, 2022. The court determined that the ALJ should be afforded the opportunity to resolve the administrative appeal on the merits.

Lastly, the court found the considerations of judicial resources and efficiency warranted that the ALJ first address the merits of the complaint, the administrative action being much further along that the judicial case.

The dismissal of the district court action was without prejudice.

Erhart v. BofI Holding, Inc., Nos. 15-02287 and -02353 (S.D. Cal. Jan. 13, 2022) (Order Granting in Part Motion In Limine No. 5 to Exclude Evidence of Any Damages That Require Computation (ECF No. 221))

INITIAL DISCLOSURE OF DAMAGES AND CALCUATION OF SUCH REQUIRED BY FRCP 26; FAILURE OF PLAINTIFF TO MAKE SUFFICIENT DISCLOSURES, AND FAILURE TO ADEQUATELY EXPLAIN SUCH, RESULTED IN EXCLUSION OF EVIDENCE UNDER FRCP 37(c)(1) OF CATEGORIES OF DAMAGES THAT CAPABLE OF BEING COMPUTED (E.G., BACK PAY, LOST FUTURE WAGES AND EARNINGS, LOST BENEFITS, MEDICAL EXPENSES)

In Erhart v. BofI Holding, Inc., Nos. 15-02287 and -02353 (S.D. Cal. Jan. 13, 2022), Plaintiff brought an action under the whistleblower retaliation provisions of SOX and Dodd-Frank, and a state law defamation law. The case was awaiting trial after extensive discovery and motion practice. The complaint stated that he sought certain compensatory and punitive damages. Defendant filed a motion in limine that the court found seemingly incredulous—that Plaintiff had never provided an estimate of his damages. Defendant thus sought to preclude Plaintiff from presenting evidence of any damages that require computation at trial, citing FRCP 26 on Initial Disclosures. During discovery, Plaintiff answered Defendant’s interrogatories about alleged damages and calculation of such, saying only that Plaintiff was seeking all damages allowable by law calculated in accordance with acceptable practices. Defendant met and conferred unsuccessfully with Plaintiff on the damages issue before filing the motion in limine. Plaintiff responded to the motion by arguing that the jury, and not Plaintiff, will compute the damages owed, and that he was substantially justified in not providing any computation of his damages to Defendant. Given this lackluster response, the court called for oral argument on the motion. When pressed by the court for an explanation, Plaintiff’s argument did not provide straightforward answers.

In ruling on the motion, the court explained that FRCP 26 requires that a party’s initial disclosures provide a “computation of each category of damages claimed by the disclosing party.” Fed. R. Civ. P. 26(a)(1)(A)(iii). The court further explained that the purpose of this rule “is to enable defendants to understand their potential exposure and make informed decisions as to settlement and discovery.” Slip op. a 5 (citations omitted). The court noted that the computation of damages need not be detailed early in the case before all relevant documents have been obtained by a plaintiff, but that as discovery proceeds, a plaintiff is required to supplement to reflect the information obtained. A plaintiff’s computation under Rule 26 needs some analysis beyond merely setting forth a lump sum. A plaintiff cannot shift the burden to the defendant to attempt to determine the amount of the plaintiff’s alleged damages. The court then explained Plaintiff’s shortcomings in this regard in the instant proceeding:

Here, Erhart failed to comply with Rule 26’s disclosure requirement. He did not even provide a lump sum for each category of damages, let alone a computation and analysis. And Erhart’s argument that he provided the relevant documents for BofI to figure out his damages is not well taken. Rule 26(1)(A)(iii) plainly requires Erhart to provide “a computation of each category of damages” in addition to “mak[ing] available for inspection and copying . . . the documents . . . on which each computation is based.” Fed. R. Civ. P. 26(1)(A)(iii); see also, e.g., Design Strategy, Inc. v. Davis, 469 F.3d 284, 295 (2d Cir. 2006) (reasoning that Rule 26 “by its very terms” requires more than providing documents without any explanation); Agence France Presse v. Morel, 293 F.R.D. 682, 685 (S.D. N.Y. 2013) (“Put simply, damages computations and the documents supporting those computations are two different things, and Rule 26 obliges parties to disclose and update the former as well as the latter.”). For example, to assess his claim for future damages and “front pay” (see Hr’g Tr. 48:4), BofI would need to know items like how long Erhart expected to work at BofI, what his expected salary with a new employer would be, and other matters. Cf. Passantino v. Johnson & Johnson Consumer Prod., Inc., 212 F.3d 493, 511–13 (9th Cir. 2000) (reviewing damages award for front pay in Title VII and Washington anti-discrimination law case that was based on expected retirement age, salary at a different employer, potential promotion path, expected cash and stock bonuses, and a position the plaintiff believed she was qualified to hold). The Bank is likewise entitled to a calculation for Erhart’s claim for medical expenses. Erhart “cannot shift” to BofI “the burden of attempting to determine the amount of [his] alleged damages.” See Jackson, 278 F.R.D. at 593–94.

Id. at 6. The court thus concluded the Plaintiff violated FRCP 26 for any categories of damages that can be computed, such as back pay, lost future earnings and wages, lost benefits, and medical bills. The court, however, declined to find a violation for “more nebulous categories of damages, such as emotional distress, punitive, and reputational damages. Such damages do not require a computation because they are difficult to quantify and are typically fact issues for the jury.

The court then considered what consequence should follow for the violation of FRCP 26. The court noted that Rule 26(e)(1)(A) requires disclosing parties to supplement their prior disclosures “in a timely manner” when the prior response is “incomplete or incorrect,” and that Rule 37(c)(1) provides for exclusion of any evidence or information that a party fails to disclose in a timely manner. Moreover, Rule 37(c)(1) is an automatic sanction, unless the violation is proven to be harmless or substantially justified. In the Ninth Circuit, automatic does not mean that the court must exclude the evidence, but only that the court may properly impose an exclusion sanction. In the instant case, the court found that Plaintiff’s counsel’s justifications for the violation were unacceptable, and Plaintiff failed to prove that the violation was harmless. The court considered whether, instead of excluding the evidence, it should order Plaintiff to disclose his calculable damages at the eleventh hour--and consider imposing other sanctions—but concluded that exclusion was the appropriate consequence. Here, new briefing and possibly reopening discovery would likely be necessary.

Erhart v. BofI Holding, Inc., Nos. 15-02287 and -02353 (S.D. Cal. Jan. 12, 2022) (2022 U.S. Dist. LEXIS 6481) (Order Denying BofI’s Motion In Limine No. 4 to Exclude Evidence of Conduct and Statements That Are Not Actionable (ECF No. 220))

MOTION IN LIMINE TO EXCLUDE EVIDENCE OF POST-TERMINATION CONDUCT; MOTION DENIED WHERE, ALTHOUGH POST-TERMINATION CONDUCT WAS NOT IN ITSELF ACTIONABLE UNDER SOX AND DODD-FRANK, IT MAY BE RELEVANT TO SUPPORT PLAINTIFF’S CLAIM THAT DEFENDANT’S CONSTRUCTIVE DISCHARGE OF PLAINTIFF WAS IN RETALIATION FOR PROTECTED ACTIVITY

In Erhart v. BofI Holding, Inc., Nos. 15-02287 and -02353 (S.D. Cal. Jan. 12, 2022) (2022 U.S. Dist. LEXIS 6481), Plaintiff brought an action under the whistleblower retaliation provisions of the Sarbanes-Oxley Act, § 806, 18 U.S.C. § 1514A; the Dodd–Frank Act, § 21F, 15 U.S.C. § 78u-6; and a state law defamation law. Plaintiff alleged that some of Defendant’s conduct occurred after his employment ended. Defendant filed a sweeping motion in limine seeking to exclude evidence of any post-termination conduct on the ground that such conduct is not relevant to the whistleblower retaliation claims. Defendant also sought a determination that certain statements made by Defendant’s officials are not actionable for the defamation claim. The court denied the motion, finding that (1) just because post-termination conduct may not be actionable for the whistleblower retaliation claims did not mean it is irrelevant, and (2) the motion was, in truth, a motion for summary judgment.

As to the retaliation claims, the court explained how post-termination conduct may be relevant.

First, just because post-termination conduct may not be actionable for Erhart’s whistleblower retaliation claims does not mean it is irrelevant. As the Court highlighted at oral argument, the question is whether the evidence is admissible because it shows that something of consequence in the case is more likely than not. See Fed. R. Evid. 401.
To illustrate, the Court considers the CEO’s post-termination statement that he is going to “bury the whistleblower.” The Court agrees that post-employment conduct is not actionable for the retaliation element of Erhart’s claims. To recap, these causes of action are retaliation claims under three statutes: Sarbanes–Oxley § 806, 18 U.S.C. § 1514A; Dodd–Frank § 21F, 15 U.S.C. § 78u-6; and California’s general whistleblower statute, Cal. Labor Code § 1102.5(b).
Erhart correctly argues that the law permits retaliation claims based on post-employment conduct in a different context—Title VII. See Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (concluding ambiguous term “employees” in Title VII includes former employees, allowing them to bring a claim based on negative, retaliatory job references); see also Hashimoto v. Dalton, 118 F.3d 671, 674 (9th Cir. 1997) (noting an adverse employment reference can be a violation of Title VII). However, the fact that Title VII retaliation claims can be based on post-employment conduct does not mean the same is true for Sarbanes–Oxley and Dodd–Frank claims.
Sarbanes–Oxley’s whistleblower retaliation provision provides a company may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of” protected activity. 18 U.S.C. § 1514A(a). As the statute indicates, the retaliation that is actionable is “an unfavorable personnel action.” Tides v. The Boeing Co., 644 F.3d 809, 814 (9th Cir. 2011). By comparison, the Title VII anti-retaliation provision says “it shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . [because] he has made [an EEOC] charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3. So, Sarbanes–Oxley’s text is more circumscribed than Title VII’s provision because it specifies the discrimination is “in the terms and conditions of employment.” And Erhart does not point the Court to a case allowing a Sarbanes–Oxley claim based on post-employment conduct.
The Dodd–Frank provision similarly provides no “employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of” protected activity. 15 U.S.C. § 78u-6(h)(1)(A). As the statute indicates, the prohibited discrimination by an “employer” is in “the terms and conditions of employment.” See id.
* * *
Accordingly, the Bank’s CEO’s post-termination statement to employees that he was going to “bury the whistleblower” does not support the retaliation element of Erhart’s claims. This statement did not discriminate “in the terms and conditions of [Erhart’s] employment.” See 18 U.S.C. § 1514A; 15 U.S.C. § 78u-6(h)(1)(A). However, the statement has the “tendency to make a fact more or less probable than it would be without the evidence”—namely, whether the Bank’s purported constructive discharge of Erhart was in retaliation for protected conduct, as opposed to Erhart “abandoning his job” or not completing his work. And BofI’s intent is a fact “of consequence in determining” Erhart’s whistleblower retaliation claims. Therefore, it would not be appropriate to exclude this post-termination conduct.

Slip op. at 3-5 (footnote omitted).

Erhart v. BofI Holding, Inc., Nos. 15-02287 and -02353 (S.D. Cal. Jan. 10, 2022) (Order Granting in Part BofI’s Motion In Limine No. 2 To Exclude Inflammatory Evidence That Is Untethered to Erhart’s Claims (ECF Nos. 215, 232))

MOTION IN LIMINE; EXCLUSION UNDER FRE 403 OF INFLAMMATORY EVIDENCE OF MISCONDUCT UNRELATED TO THE SOX AND DODD-FRANK VIOLATIONS ADVANCED IN THE COMPLAINT; PLAINTIFF COULD, HOWEVER, INTRODUCE EVIDENCE THAT DEFENDANT’S CULTURE DISCOURAGED REPORTING MISCONDUCT, AND REPRIMANDED EMPLOYEES FOR RAISING CONCERNS

In Erhart v. BofI Holding, Inc., Nos. 15-02287 and -02353 (S.D. Cal. Jan. 10, 2022), the court granted in part Defendant’s motion in limine to exclude certain inflammatory evidence. The court noted that it had, early in the case, explained that the federal whistleblower retaliation causes of action alleged were not general compliance statutes. The court had explained that Plaintiff’s belief of wrongdoing must be at least tethered to conduct addressed by SOX and Dodd-Frank.

During discovery, Plaintiff elicited deposition testimony concerning a range of workplace conduct, such as the making of inappropriate jokes and engaging in crude behavior, Defendant having a “fear-based” culture, Defendant being a “boys’ club,” and Defendant’s management allegedly lying to a regulator. The court agreed that most of this evidence should be excluded under FRE 403. The court stated:

The Bank is not on trial for any possible grievance. Whether former employees, many of whom apparently did not work with Erhart, witnessed sexual harassment or made distasteful comments is not relevant to the believed violations of law Erhart has advanced throughout this case. The fact that the Bank was purportedly a “boys’ club” likewise is not relevant to Erhart’s retaliation claims.

Slip op. at 4. The Court, however, declined to exclude any evidence that Defendant had a “fear-based culture,” discouraged the reporting of wrongdoing, or reprimanded employees for raising concerns—the court finding that such evidence may be relevant to the retaliation claims.

The court also excluded testimony of an individual concerning her belief in a cover up that occurred a couple years earlier than the conduct that Plaintiff complained of. Citing FRE 404(b)(1), the court stated this individual’s testimony about specific prior acts was not admissible to establish that Defendant engaged in the same conduct while Plaintiff was an employee, absent a showing that Plaintiff was aware of those allegations or interacted with this individual. The court, however, ruled that this individual could testify that Defendant discouraged the reporting of wrongdoing or reprimanded employees for raising concerns.

Erhart v. BofI Holding, Inc., Nos. 15-02287 and -02353 (S.D. Cal. Jan. 7, 2022) (Order Granting in Part BofI’s Motion in Limine No. 1 To Exclude Incomplete Documents and Related Testimony (ECF No. 213))

MOTION IN LIMINE; FAILURE TO TURN OVER COMPLETE TEXT MESSAGES IN DISCOVERY; COURT IMPOSES AUTOMATIC SANCTION OF EXCLUSION OF THE INCOMPLETE DOCUMENTS UNDER FRCP 37(c)(1) WHERE COUNSEL FAILED TO PRODUCE FULL TEXTS ONCE LEARNING THAT THE DISCLOSURE HAD BEEN INCOMPLETE, AND WHERE PLAINTIFF DID NOT SHOW THAT HE LACKED ACCESS TO THE MISSING RELEVANT MESSAGES

In Erhart v. BofI Holding, Inc., Nos. 15-02287 and -02353 (S.D. Cal. Jan. 7, 2022), the court granted in part Defendant’s motion in limine to exclude based on incomplete document production. During discovery, Defendant had requested production of all text messages Plaintiff had sent or received concerning allegations of any wrongdoing by Defendant. During depositions of third parties, Defendant learned that responsive communications were missing from the document production, and Defendant filed a motion to compel with the Magistrate Judge. The Magistrate Judge found that the texts were incomplete on their face, and that Defendant’s motion to compel was untimely. Rather, the Magistrate Judge reasoned that a motion in limine to exclude the incomplete text chains would be the avenue to cure any potential prejudice. Defendant thus filed a motion in limine with the district court.

The court cited FRCP 26, which requires a party to timely supplement or correct a disclosure if it is learned that the disclosure had been incomplete or incorrect, and FRCP 37(c)(1), which provides an automatic sanction that prohibits the use of improperly disclosed evidence. To avoid the sanction, it must be proved that the discovery violation was substantially justified or harmless. Here, the court found it obvious that Defendant’s request to exclude the incomplete documents was justified. The court also found that once Plaintiff’s counsel knew there were relevant, missing texts, they should have been produced. Had he done so, Plaintiff could have avoided the automatic sanction. The court noted that Plaintiff had not shown that he lacked access to the missing relevant messages. The court thus granted the request to exclude the incomplete documents. The court, however, denied Defendant’s request for an adverse-inference jury instruction, and reserved for trial the question of whether any of the incomplete documents may be used for impeachment.

Clegg v. Amcor Rigid Packaging USA, LLC, No. 21-232 (E.D. Ky. Jan. 3, 2022) (2022 U.S. Dist. LEXIS 7) (Memorandum Opinion and Order)

PROTECTED ACTIVITY UNDER SOX; REPORTING INVENTORY DISCREPANCIES WAS NOT SHOWN TO BE OBJECTIVELY REASONABLE WHERE THE FINANCIAL IMPACT WAS TOO MINOR TO BEAR A RELATIONSHIP TO SHAREHOLDER INTERESTS; PLAINTIFF’S CONTINUING BELIEF OF ILLEGALITY WAS NOT REASONABLE IN LIGHT OF MANAGEMENT’S ASSURANCES THAT IT WOULD RESOLVE THE PROBLEMS; AND ONE OF PLAINTIFF’S JOB DUTIES WAS TO REPORT SUCH DISCREPANCIES SO THAT THEY COULD BE ADDRESSED

In Clegg v. Amcor Rigid Packaging USA, LLC, No. 21-232 (E.D. Ky. Jan. 3, 2022) (2022 U.S. Dist. LEXIS 7), Plaintiff alleged that he was terminated in violation of SOX, 18 U.S.C. § 1514A, in retaliation for his opposition to improper inventory practices. Defendant filed a FRCP 12(b)(6) motion to dismiss.

Plaintiff worked for Defendant as a Supply Chain Manager, one duty of which was inventory reconciliation. While performing this work, Plaintiff raised a concern about the alleged improper storage of a “large quantity” of plastic bottles, and a concern about purported discrepancies in the cycle count of cardboard.

The focus for the court’s determination was whether “any reasonable supply chain manager would believe that the facts taken from Clegg’s Complaint justify the belief that Amcor was committing shareholder fraud.” Slip op. at 5. The court found that the totality of the circumstances indicated that Plaintiff’s belief of shareholder fraud was not objectively reasonable.

The court first found that the subject of the complaints was exceedingly minor in the context of Plaintiff’s business – an impact of well under a million dollars representing just 0.035% of Defendant’s revenue. The court cited caselaw indicating that such a minor sum in context bears only a tenuous relationship to shareholder interests. The court also noted that when Plaintiff reported the incidents, management indicated that it would resolve the problems. The court noted that an employer’s reaction to a disclosure is relevant to a court’s determination on whether an employee’s belief is objective reasonable. The court determined that Plaintiff had no reason not to take Defendant at its word, and that “[h]is continuing belief of illegality in the face of these assurances was objectively unreasonable.” Id. at 7. Finally, the court noted that the nature of Plaintiff’s employment underscored the objective unreasonableness of his belief. As a Supply Chain Manager, his duties were to accurately assess and report inventory reconciliation—and those duties includes adjusting or writing-down discrepancies found in the cycle counts of plastic bottles, cardboard, and shipping pallets. The court stated:

Rather than suggesting a plot to defraud shareholders, these matters illustrate that Amcor is a large business with many moving parts, where errors can occur. By reporting these issues, Clegg was acting in accordance with his job description by reporting these issues. No reasonable supply chain managers in Clegg’s position would believe that these issues—the exact type of which they were hired to address—justify a belief that Amcor was committing shareholder fraud.

Id. at 7-8 (footnotes omitted) (emphasis as in original). The court thus granted the motion to dismiss.

Seaman’s Protection Act

Gummala v. U.S. Department of Labor, No. 20-12839 (11th Cir. Mar. 25, 2022)(per curiam) (unpublished) (2022 U.S. App. LEXIS 7845; 2022 WL 881210)

DOL Case: ARB No. 2018-0053 (formerly 2015-0088), ALJ No. 2015-SPA-00001
Respondent before DOL: Carnival Corporation

DEFINITION OF “SEAMAN” UNDER 2013 SEAMAN’S PROTECTION ACT DID NOT COVER AN INDIVIDUAL ENGAGED OR EMPLOYED ON A VESSEL NOT OWNED BY A CITIZEN OF THE UNITED STATES; 2016 AMENDMENT TO THE REGULATIONS THAT WOULD INCLUDE CORPORATIONS THAT HAVE A PRINCIPAL PLACE OF BUSINESS OR BASE OF OPERATIONS IN A STATE WAS PROPERLY FOUND BY THE ARB NOT TO APPLY RETROACTIVELY

RETROACTIVE APPLICATION OF REGULATION; ARB DID NOT ERR IN FINDING THAT AMENDED REGULATION COULD NOT BE APPLIED RETROACTIVELY, WHERE DOING SO WOULD CREATE NEW AND UNFORESEEN LEGAL CONSEQUENCES

In Gummala v. U.S. Department of Labor, No. 20-12839 (11th Cir. Mar. 25, 2022)(per curiam) (unpublished) (2022 U.S. App. LEXIS 7845; 2022 WL 881210), the court denied Gummala’s petition for review of an ARB decision denying Gummala’s Seaman’s Protection Act (SPA) complaint against Carnival Corporation on the ground that he was not a “seaman” under the SPA as defined by the 2013 interim final rule in effect at the time of the alleged retaliation. That regulation defined “seaman” as “any individual engaged or employed in any capacity on board a vessel owned by a citizen of the United States.” See 29 C.F.R. § 1986.101(m) (2013) (emphasis added). In 2016, the regulation broadened the definition of “citizen of the United States” to encompass any corporation that had a principal place of business or base of operations in a state. See 29 C.F.R. § 1986.101(d) (2016). In the instant case: “Carnival [was] not a United States citizen—and Gummala [was] not a seaman—under the 2013 definitions, but Carnival [was]—and Gummala [was]—under the 2016 definitions.” The only issue on appeal was whether the ARB erred in determining that 2016 definition did not apply retroactively.

Applying Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994), the court determined that the 2016 definition could not be applied retroactively because it “marked a major shift in the number and kind of corporations that qualify as citizens under the Act,” and because “[a]pplying the 2016 definition to earlier conduct would mean ‘new and unforeseen legal consequences’ for corporations like Carnival that were incorporated outside the United States but headquartered in it.” Slip op. at 10 (citation omitted). The court noted in summary:

We agree with the Department that, although the 2016 definitions “better effectuate the [Act] than their predecessor[s],” the “good reasons for revising the definitions do not cure the unfairness that would result if the revised definitions were applied to previously-filed cases.”

Id. at 12.

Surface Transportation Assistance Act

Weatherford U.S., L.P. v. United States Dept. of Labor, No. 20-4342 (6th Cir. Feb. 18, 2022) (2022 U.S. App. LEXIS 4565) (Order [denying motion to dismiss appeal for lack of jurisdiction])

USDOL Case: ARB Nos. 2018-0006, -0074, ALJ No. 2015-STA-00022

[STAA Digest II J]
COURT OF APPEALS JURISDICTION TO ENTERTAIN APPEAL OF ARB DECISION IN WHICH THE ARB HAD ACCEPTED AN APPEAL OF AN AMENDED ALJ DECISION; THE ALJ'S ORIGINAL DECISION HAD INADVERTENTLY NOT BEEN SERVED ON RESPONDENT'S COUNSEL, AND THE AMENDED DECISION WAS IDENTICAL SAVE FOR AN EXPLANATORY FOOTNOTE

In Weatherford U.S., L.P. v. United States Dept. of Labor, No. 20-4342 (6th Cir. Feb. 18, 2022) (2022 U.S. App. LEXIS 4565), the ALJ entered a decision concluding that Weatherford (Respondent in the USDOL proceeding) violated the STAA and awarded back pay and damages to the Estate of the deceased Complainant. Because this decision was inadvertently not served on Respondent's counsel, and the deadline for appeal to the ARB had expired by the time the error was discovered, the ALJ held a conference call during which counsel for the Estate did not object to issuance of an amended decision. The ALJ then issued an amended decision that was identical to the original decision except for the addition of an explanatory footnote. On appeal, the ARB denied the Estate's motion to dismiss for lack of timeliness. The ARB later affirmed the ALJ's decision, except that it reversed an award of punitive damages. Respondent timely appealed to the Sixth Circuit, where the Estate argued that the court lacked jurisdiction because Respondent had not timely appealed the ALJ's original decision to the ARB. The Sixth Circuit rejected this argument, noting that the Estate had not cited any authority that would divest the court of jurisdiction over a timely petition for review of an ARB decision. The court also noted that the ARB had found that Respondent had timely appealed the amended ALJ decision. The court thus denied the Estate's motion to dismiss for lack of jurisdiction.

Pakutka v. Palumbo Trucking, No. 20-cv-652 (D. Conn. Jan. 28, 2022) (2022 U.S. Dist. LEXIS 15638; 2022 WL 267528) (Ruling on Motion for Summary Judgment)

[STAA Digest IV G]
CONTRIBUTORY FACTOR CAUSATION ON SUMMARY JUDGMENT STAA CASE; WHERE DEFENDANT, IN EXPLAINING WHY IT PLACED PLAINTIFF ON ADMINSITRATIVE LEAVE PRODUCED VIDEO EVIDENCE SHOWING THAT SOMEONE DRIVING PLAINTIFF’S ASSIGNED TRUCK HAD SABOTAGED IT AT DEFENDANT’S FACILITY, PLAINTIFF’S RESPONSE ASSERTING THAT THE VIDEO DID NOT PROVE IT WAS HIM AT MOST SHOWED THAT DEFENDANT WAS WRONG IN PLACING HIM ON ADMINISTRATIVE LEAVE; THE ASSERTION WAS NOT EVIDENCE THAT DEFENDANT’S RELIANCE ON THE VIDEO WAS PRETEXT FOR UNLAWFUL RETALIATION

[STAA Digest II P]
PLAINTIFF CANNOT DEFEAT MOTION FOR SUMMARY JUDGMENT BY RAISING NEW ASSERTION THAT IS AN AMENDMENT TO THE COMPLAINT

[STAA Digest V B 2 c]
PROTECTED ACTIVITY UNDER STAA IS NOT SHOWN BY GENERAL ENVIRONMENTAL AND SAFETY COMPLAINTS; THE COMPLAINTS MUST CONCERN MOTOR VEHICLE SAFETY

In Pakutka v. Palumbo Trucking, No. 20-cv-652 (D. Conn. Jan. 28, 2022) (2022 U.S. Dist. LEXIS 15638; 2022 WL 267528), Plaintiff had engaged in STAA protected activity by reporting a violation of hours-of-service (“HOS”) regulations. Other complaints he filed about environmental safety, however, were not protected where Plaintiff was unable to cite “any motor vehicle safety or security regulation, standard or order to which he claims his environmental complaints pertain, or even generally allege that these environmental and safety complaints concern motor vehicle safety.” Slip op. at 14.

As to the HOS complaint, Plaintiff had texted the dispatcher to say that he had to stop for rest, even though Defendant (according to Plaintiff) would usually have him complete the delivery outside of HOS limits. The court noted, however, that the dispatcher had texted back “no problem.” The court found that despite Plaintiff’s characterization, these texts did not support a conclusion that Defendant violated the HOS regulations or instructed Plaintiff to do so. The court further noted that Plaintiff himself had violated the HOS limits, to which Defendant gave him a written warning – which showed that Defendant did not condone or encourage the violation. The court thus found a lack of evidence of actual HOS violations.

The court found that Plaintiff’s email to OSHA and FMCSA, and his deposition testimony, in which he claimed to have knowledge of other drivers being instructed to violate HOS regulations, were sufficient to meet a “de minimis” burden to show that he had a reasonable, good-faith belief that Defendant was violating motor safety regulations.

The court nonetheless granted summary judgment for the reason that Plaintiff failed to create a genuine issue of material fact as to whether Defendant’s proffered reason for placing him on administrative leave was merely a pretext for unlawful retaliation. Defendant produced video evidence showing that “a person driving the truck assigned to the plaintiff splashed diesel fuel on the ground and drove to the area where the plastic waste oil container was stored.” Id. at 19. Although Plaintiff contended that it was not clear that the person in the video was him, the court found that such contention only showed that Defendant may have been wrong in placing Plaintiff on administrative leave. Plaintiff produced no evidence that Defendant’s reliance on the video when deciding to place him on administrative leave was merely a pretext for unlawful retaliation.

Plaintiff also argued that Defendant retaliated against him in response to the Plaintiff’s refusal to drive in violation of HOS regulations. The court, however, found that a “refusal to drive” allegation had not been asserted in the complaint, but rather was raised for the first time in his opposition to the summary judgment motion. The court stated: “[A] party may not use his opposition to a dispositive motion to amend the complaint.” Id. at 20 (citation omitted).

Logan Trustee of [Dorissha Tinnon’s bankruptcy estate]
v. B H 92 Trucking, Inc., No. 19-cv-1875 (N.D. Ill. Jan. 21, 2022) (2022 U.S. Dist. LEXIS 11269) (Memorandum Opinion and Order)

STAA DIGEST IV G
STAA DIGEST VII B 3
CONTRIBUTORY FACTOR CAUSATION; THE MERE FACT THAT TWO COMPANIES ARE CONSIDERED JOINT EMPLOYERS DOES NOT AUTOMATICALLY MAKE EACH LIABLE FOR THE OTHER’S ACTIONS; RATHER, LIABILITY MAY ATTACH WHEN THE JOINT EMPLOYER PARTICIPATED IN THE VIOLATIVE CONDUCT OR FAILED TO TAKE CORRECTIVE MEASURES WITHIN ITS CONTROL

In Logan v. B H 92 Trucking, Inc., No. 19-cv-1875 (N.D. Ill. Jan. 21, 2022) (2022 U.S. Dist. LEXIS 11269), the district court granted Defendant B H 92 Trucking, Inc., motion for summary judgment dismissing Plaintiff’s STAA retaliation complaint. Plaintiff in this case was a trustee for the bankruptcy estate of the driver.

The court first rejected B H 92 Trucking’s argument that it could not be held liable because it was not the driver’s employer. B H 92 Trucking argued that another Defendant, AP Express, was the driver’s sole employer. B H 92 Trucking had contracted with AP Express to pick up and deliver freight pursuant to a written Lease agreement. Plaintiff argued was that B H 92 Trucking was a joint employer. The court found no Seventh Circuit precedent, but found instructive ARB decisions on the question, which indicate that it is a fact question involving whether the defendant exerted control over the terms and conditions of the driver’s employment. Reviewing the record, the court found there was a triable issue of fact as to whether B H 92 Trucking was the driver’s joint employer.

The court turned to whether the driver had engaged in protected activity under the STAA. The court rejected B H 92 Trucking’s argument that the driver did not engage in protected activity based on complaints regarding her vehicle’s condition and possible violation of hours regulations, because Plaintiff must show that the driver’s complaints were justified – that is, that the truck was actually unsafe and/or that the driver would have actually run out of hours if she had kept driving. The court found that the applicable standard was a good faith reasonable belief, and that B H 92 Trucking did not dispute that the driver acted in good faith when she complained about her truck and that she was running out of hours. The court also rejected B H 92 Trucking’s argument that Plaintiff could use the driver’s own testimony about a conversation with AP Express’s owner as proof that she engaged in protected activity because that testimony is inadmissible hearsay. The court found that the driver’s testimony would not be hearsay to show that she made a complaint, and that the truth of the matters asserted in the complaint (that her truck was, in fact, unsafe and/or that she would have, in fact, run out of hours if she had kept driving) was not at issue. At the summary judgment stage, all Plaintiff need do is put forth evidence that the driver had lodged the complaint.

The court then turned to causation. B H 92 Trucking first argued that it could not be liable because it was not the driver’s employer. The court, however, noted that it had already found that there was a triable issue on whether B H 92 Trucking was a joint employer.

B H 92 Trucking, however, also argued that it could not be liable for the driver’s termination because it was AP Express’s owner who terminated her. The court cited Seventh Circuit caselaw that “rejects the notion that when two companies are considered ‘joint employers,’ each is automatically liable for the other’s actions.” Slip op. at 16, citing Whitaker v. Milwaukee Cnty., 772 F.3d 802, 810-12 (7th Cir. 2014). Rather, liability may attach when the joint employer participated in the violative conduct or failed to take corrective measures within its control. The court found that there was no dispute that AP Express’s owner terminated the driver’s employment, and that Plaintiff had offered no explanation as to why the termination should be attributed to B H 92 Trucking. The Court noted in particular that there was no attempt to show that AP Express’s owner was acting as B H 92 Trucking’s agent when he terminated the driver. In addition, B H 92 produced uncontroverted evidence that its relationship with AP Express and its owner was governed by the Lease, that the Defendants had no other connection, and that the Lease did not delegate to AP Express or its owner any authority to hire or fire B H 92 Trucking’s employees. The court also found that Plaintiff was unable to show that B H 92 Trucking failed to take corrective measures within its control; rather, the record showed that H 92’s owner took corrective measures by offering to reinstate the driver and pay her whatever they owed her.

In sum, the court granted B H 92 Trucking motion for summary judgment because Plaintiff had not offered any evidence that B H 92 either participated in the violative conduct or failed to take corrective measures within its control.

Walsh v. Ahern Rentals, Inc., No. 21-16124 (9th Cir. Jan. 12, 2022) (unpublished) (2022 U.S. App. LEXIS 896; 2022 WL 118636) (Memorandum)

Related to OALJ No. 2020-STA-00105 (Stephen Balint)

[STAA Digest IX F]
PRELIMINARY REINSTATEMENT ORDER BY OSHA; SECRETARY OF LABOR’S ACTION FOR PRELIMINARY INJUNCTION WHERE DEFENDANT REFUSED TO COMPLY WITH OSHA’S ORDER; DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN GRANTING PRELIMINARY INJUNCTION ON THE PLEADINGS WHERE THE ONLY ISSUE WAS THE LEGAL ONE OF WHETHER THE SECRETARY’S PRELIMINARY INJUNCTION PROCEDURES SATISIFIED DUE PROCESS

[STAA Digest IX F]
PRELIMINARY REINSTATEMENT ORDER BY OSHA; ACTION FOR PRELIMINARY INJUNCTION WHERE DEFENDANT REFUSED TO COMPLY WITH OSHA’S ORDER; DEFENDANT’S RELIANCE ON DELAY AS BEING A DENIAL OF DUE PROCESS WAS NOT PERSUASIVE WHERE SUCH A DELAY HARMS THE EMPLOYEE AND NOT THE EMPLOYER, AND WHERE UNDER THE FACTS OF THE CASE THE FEDERAL OSHA OFFICE WAS NOT RESPONSIBLE FOR MOST OF THE DELAY

[STAA Digest IX F]
PRELIMINARY REINSTATEMENT ORDER BY OSHA; ACTION FOR PRELIMINARY INJUNCTION WHERE DEFENDANT REFUSED TO COMPLY WITH OSHA’S ORDER; MOTION TO JOIN WHISTLEBLOWER COMPLAINANT AS A REQUIRED PARTY MUST BE MADE AS SOON AS POSSIBLE, AND NOT AFTER THE DISTRICT COURT HAS ALREADY GRANTED THE INJUNCTION

[STAA Digest IX F]
PRELIMINARY REINSTATEMENT ORDER BY OSHA; ACTION FOR PRELIMINARY INJUNCTION WHERE DEFENDANT REFUSED TO COMPLY WITH OSHA’S ORDER; OSHA DID NOT WAIVE ARGUMENTS ON CERTAIN ELEMENTS OF PRELIMINARY INJUNCTION FACTORS BY NOT BRIEFING THEM, WHERE DEFENDANT’S ARGUMENTS ON THOSE ELEMENTS WERE MERITLESS

In Walsh v. Ahern Rentals, Inc., No. 21-16124 (9th Cir. Jan. 12, 2022) (unpublished) (2022 U.S. App. LEXIS 896; 2022 WL 118636), the Secretary of Labor had filed suit seeking a preliminary injunction against Ahern Rentals, Inc. (Ahern) for refusing to reinstate a STAA complainant after OSHA had found that Ahern retaliated against the complainant in violation of 49 U.S.C. § 31105, and OSHA had ordered the complainant to be preliminarily reinstated as required by the statute. The district court granted the motion on the pleadings and ordered Ahern to reinstate the complainant.

On appeal to the Ninth Circuit, Ahern argued that the preliminary injunction was improperly granted.

First, Ahern argued that the district court’s deciding the motion on the pleadings, rather than holding a hearing, was a denial of due process. The court, however, held that it was not an abuse of discretion for the district court to decline to hold a pre-injunction evidentiary hearing as it was undisputed that the issue presented was a legal one – whether the procedures followed by the Secretary of Labor in issuing the preliminary reinstatement order satisfied due process. The court noted that no “sharply disputed facts” were before the district court, as the merits of the complaint were reserved for a separate hearing before a DOL ALJ.

Second, Ahern argued that OSHA’s reinstatement procedures did not satisfy due process because of substantial delay. The court found that the Secretary plainly meet three of the four-element preliminary injection standard, given the STAA’s mandate under 49 U.S.C. § 31105(a)(1)(A)(i), (b)(2)-(3), that preliminary reinstatement be ordered if the Secretary decides that there is reason to believe that the respondent violated the Act. The court wrote: “As the district court properly held, the mandatory language of the STAA reflects a congressional judgment that, if defied, would cause irreparable harm to the Secretary's ability to protect whistleblowers. The strong congressional policy reflected in the STAA also tips the balance of hardships and the public interest in favor of injunctive relief here.” Slip op. at 5 (footnotes omitted). In a footnote, the court observed Ahern’s argument that the Secretary waived three of the four preliminary injunction factors by not discussing them in his responsive brief. The court dismissed this argument, stating: “But a party cannot prevail on meritless arguments simply because the other party ignores them. We do not evaluate Ahern's assertions in a vacuum, or take them at face value. Instead, we evaluate them in light of the law and our due deference to the district court.” Id. at 5, n.3.

Turning to the four factor of likelihood-of-success on the merits, the court found that Ahern’s appeal hinged on whether OSHA gave Ahern all the process it was due. The court found that it had. The court noted that the question of what process is due before an STAA preliminary reinstatement had been addressed by Supreme Court in Brock v. Roadway Express, Inc., 481 U.S. 252, 263-64, 107 S. Ct. 1740, 95 L. Ed. 2d 239 (1987) (plurality opinion). Ahern’s due process argument was based on the Supreme Court’s observation in Brock that at some point delay may become a constitutional violation, and that in the instant case, OSHA missed the statutory timeline by more than three years. The Ninth Circuit, however, noted the Supreme Court’s concern was with post-reinstatement evidentiary hearings. The court noted that a delayed reinstatement order of a supposedly undesirable employee is not a harm to the employer. Rather, it is the employee who is harmed by a delayed reinstatement. The court also noted that the district court had detailed a timeline explaining that the delay was due mostly to a pending state level OSHA investigation and to Ahern’s own failure to respond promptly to the OSHA investigator.

Third, Ahern argued that the complainant should have been joined as a party in the district court. The court found this argument infirm because, if the complainant was a “required” party, the motion to join by Ahern should have been made as soon as possible, early in the proceedings--and not as happened here, in a motion for reconsideration after the injunction was issued. The court also found that there was no legal basis for entertaining a claim that the complainant was an indispensable party.

USDOL/OALJ Reporter: 2022 Federal Court Whistleblower Decisions

Consumer Financial Protection Act

Alijaj v. Wells Fargo, No. 17-cv-1887 (S.D. N.Y. Feb. 9, 2022) (2022 U.S. Dist. LEXIS 23457) (Opinion & Order)

Energy Reorganization Act

Peck v. Dep't of Labor, Administrative Review Board, et al., No. 21-813 (U.S. Jan. 24, 2022) (2022 U.S. LEXIS 654)

Federal Railroad Safety Act

Gilbert v. Union Pac. R.R. Co., No. 19-cv-804 (N.D. Ill. May 17, 2022) (2022 U.S. Dist. LEXIS 88503; 2022 WL 1556101) (Memorandum Opinion and Order)

Williams v. MTA Metro N. R.R., No. 20-3418 (2d Cir. Apr. 8, 2022) (unpublished) (2022 U.S. App. LEXIS 9451) (Summary Order)

Matta v. Kansas City Southern Railway Co., No. 20-CV-48 (S.D. Tx. Mar. 30, 2022) (2022 U.S. Dist. LEXIS 87407) (Memorandum and Order)

Parker (Personal Representative of Estate of Rookaird) v. BNSF Ry. Co., No. 14-cv-00176 (W.D. Wash. Mar. 28, 2022) (2022 U.S. Dist. LEXIS 55654) (Findings of Fact and Conclusions of Law)

Chamberlin v. BNSF Ry. Co., No. 22-cv-00005 (N.D. Cal. Mar. 10, 2022) (2022 U.S. Dist. LEXIS 42887) (Order Denying Motion to Dismiss)

Grantham v. CSX Transp., Inc., No. 19-cv-00065 (S.D. Ga. Mar. 7, 2022) (2022 U.S. Dist. LEXIS 39576) (Order [denying in part and granting in part Defendant’s motion for summary judgment, and denying Plaintiff’s partial motion for summary judgment])

Pfeifle v. Portland Terminal R.R. Co., No. 3:19-cv-01436 (D. Or. Jan. 18, 2022) (2022 U.S. Dist. LEXIS 8880; 2022 WL 154678) (Opinion and Order)

McClement v. Port Authority Trans-Hudson Corp., No. 11-cv-06839 (D. N.J. Jan. 12, 2022) (unpublished) (2022 U.S. Dist. LEXIS 5926) (Opinion)

Carlson v. BNSF Ry. Co., No. 19-cv-1232 (D. Minn. Jan. 4, 2022) (2022 U.S. Dist. LEXIS 1159; 2022 WL 37468) (Order)

Safe Drinking Water Act

Onysko v. Walsh, Nos. 21-9529 & 21-9530 (10th Cir. Apr. 28, 2022) (unpublished) (2022 U.S. App. LEXIS 11482; 2022 WL 1251071) (Order and Judgment)

Sarbanes-Oxley Act

Harmon v. Honeywell Intelligrated, No. 1:19-cv-670 (S.D. Oh. Mar. 21, 2022) (2022 U.S. Dist. LEXIS 50070; 2022 WL 836419) (Order [denying motion for leave to file motion under seal])

Geary v. Parexel Int'l Corp., No. 19-cv-07322 (WD. Cal. Mar. 18, 2022) (2022 U.S. Dist. LEXIS 48669) (Order Granting Motion to Dismiss With Leave to Amend)

Turnbull v. JPMorgan Chase & Co., No. 21-cv-3217 (S.D. N.Y. Feb. 24, 2022) (2022 U.S. Dist. LEXIS 35660; 2022 WL 608708) (Memorandum Opinion and Order)

Alijaj v. Wells Fargo, No. 17-cv-1887 (S.D. N.Y. Feb. 9, 2022) (2022 U.S. Dist. LEXIS 23457) (Opinion & Order)

Liu v. Tutor-Perini Corp., No. 21-cv-05803 (C.D. Cal. Jan. 26, 2022) (2022 U.S. Dist. LEXIS 24963) (Order Granting Motion to Dismiss)

Erhart v. BofI Holding, Inc., Nos. 15-02287 and -02353 (S.D. Cal. Jan. 13, 2022) (Order Granting in Part Motion In Limine No. 5 to Exclude Evidence of Any Damages That Require Computation (ECF No. 221))

Erhart v. BofI Holding, Inc., Nos. 15-02287 and -02353 (S.D. Cal. Jan. 12, 2022) (2022 U.S. Dist. LEXIS 6481) (Order Denying BofI’s Motion In Limine No. 4 to Exclude Evidence of Conduct and Statements That Are Not Actionable (ECF No. 220))

Erhart v. BofI Holding, Inc., Nos. 15-02287 and -02353 (S.D. Cal. Jan. 10, 2022) (Order Granting in Part BofI’s Motion In Limine No. 2 To Exclude Inflammatory Evidence That Is Untethered to Erhart’s Claims (ECF Nos. 215, 232))

Erhart v. BofI Holding, Inc., Nos. 15-02287 and -02353 (S.D. Cal. Jan. 7, 2022) (Order Granting in Part BofI’s Motion in Limine No. 1 To Exclude Incomplete Documents and Related Testimony (ECF No. 213))

Clegg v. Amcor Rigid Packaging USA, LLC, No. 21-232 (E.D. Ky. Jan. 3, 2022) (2022 U.S. Dist. LEXIS 7) (Memorandum Opinion and Order)

Seaman’s Protection Act

Gummala v. U.S. Department of Labor, No. 20-12839 (11th Cir. Mar. 25, 2022)(per curiam) (unpublished) (2022 U.S. App. LEXIS 7845; 2022 WL 881210)

Surface Transportation Assistance Act

Weatherford U.S., L.P. v. United States Dept. of Labor, No. 20-4342 (6th Cir. Feb. 18, 2022) (2022 U.S. App. LEXIS 4565) (Order [denying motion to dismiss appeal for lack of jurisdiction])

Pakutka v. Palumbo Trucking, No. 20-cv-652 (D. Conn. Jan. 28, 2022) (2022 U.S. Dist. LEXIS 15638; 2022 WL 267528) (Ruling on Motion for Summary Judgment)

Logan Trustee of [Dorissha Tinnon’s bankruptcy estate] v. B H 92 Trucking, Inc., No. 19-cv-1875 (N.D. Ill. Jan. 21, 2022) (2022 U.S. Dist. LEXIS 11269) (Memorandum Opinion and Order)

Walsh v. Ahern Rentals, Inc., No. 21-16124 (9th Cir. Jan. 12, 2022) (unpublished) (2022 U.S. App. LEXIS 896; 2022 WL 118636) (Memorandum)

Logan Trustee of [Dorissha Tinnon’s bankruptcy estate]
v. B H 92 Trucking, Inc., No. 19-cv-1875 (N.D. Ill. Jan. 21, 2022) (2022 U.S. Dist. LEXIS 11269) (Memorandum Opinion and Order)