DIVISION XIII -- RELATIONSHIP WITH OTHER REMEDIES
[Last updated Dec. 15, 2015]
XIII. Relationship with other remedies
Requirement of exhaustion of
Deferral to arbritation proceedings
[See also STAA Digest III D]
- D. Mootness doctrine
[STAA Whistleblower Digest XIII A]
YOUNGER ABSTENTION DOCTRINE FOUND NOT TO APPLY TO ADJUDICATION OF STAA COMPLAINT IN FEDERAL DISTRICT COURT WHERE STATE COURT ACTION WAS NOT AKIN TO CRIMINAL PROSECUTION
In Torres v. DeMatteo Salvage Co., Inc. , No. 14-cv-00774 (E.D.N.Y. Aug. 4, 2014) (2014 WL 3828271), the Defendant filed a motion to dismiss the Plaintiff's STAA whistleblower complaint under the Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 ((1971), abstention doctrine because the Plaintiff's claims could be litigated in a first-filed state action. Applying the standards found in the recent U.S. Supreme Court decision in Sprint Commc'ns, Inc. v. Jacobs , __ U.S. __, __, 134 S.Ct. 584, 593, 187 L.Ed.2d 505 (2013), the district court considered whether the state proceeding under New York State Labor Laws fit into the classification of "particular state civil proceedings that are akin to criminal prosecutions." The court found that although the state law generally incentivized enforcement of the law by private parties, it was not the type of state proceedings akin to a crimination prosecution as contemplated by Sprint , in particular because the state court action was between two private parties and was not initiated by a state body in its sovereign capacity. The court thus denied the motion to dismiss.
XIII A STAA Does Not Preemptively Bar a State Law Remedy for Wrongful Discharge of an Employee Who Reports Violations of Federal or State Law.
It is unlawful under Minnesota law for an employer to discharge an employee for reporting an employer's violation of state or federal law. The Court of Appeals addressed the issue whether the state law cause of action was preempted by the STAA. The Court found that the STAA did not represent Congressional effort at occupying the field of interstate motor carriers. It also ruled that enforcement of the Minnesota statute would not frustrate the purpose of the federal scheme. The state cause of action was not preempted by the STAA. Parten v. Consolidated Freightways Corp., 923 F.2d 580 (8th Cir. 1991).
[STAA Whistleblower Digest XIII A]
PRE EMPTION; MATTER COVERED BY THE LMRA DOES NOT PRE EMPT STAA WHISTLEBLOWER COMPLAINT
In Lane v. Roadway Express, Inc. , ARB No. 03 006, ALJ No. 2002 STA 38 (ARB Feb. 27, 2004), the Respondent contended that consideration of the complaint as it related to waiting time pay was pre empted by the Labor Management Relations Act. The ARB, however, held that the LMRA, which governs contractual labor disputes, does not preclude the Secretary of Labor from determining whether discrimination occurred and ordering appropriate relief under the STAA.
XIII A Preemption of state law claim
In Davis v. Customized Transportation, Inc., 854 F. Supp. 513 (N.D. Ohio 1994), the court held that section 405 of the STAA preempted a state law claim involving a discharge in retaliation for an employee refusing to violation Federal Motor Carrier Safety Regulations.
XIII.A. Section §405 of the STAA Serves as the Exclusive Remedy to Adverse Employment Action, and the Plaintiff's RICO Claims will be Dismissed.
Plaintiff-truck driver was terminated for failing to meet time schedules. Plaintiff alleged that his employer fixed destinations and time schedules that could not be met unless the driver violated the Federal Motor Carrier Safety Regulations regarding the maximum allowable road time without rest. He brought civil RICO claims, as well as state law claims for slander, interference with business relations, and tortious breach of duties of good faith and fair dealing. Employer's Fed.R.Civ. Proc. 12(b)(6) motion to dismiss is granted on the grounds that §405 of the STAA serves as the plaintiff's exclusive remedy over the allegations raised. Norman v. M.S. Carriers, Inc., 741 F.Supp. 148 (W.D. Tenn. 1990).
In Peacock v. Suffolk Bus Corp. , No. 14-4479 (E.D.N.Y. Apr. 23, 2015) (100 F. Supp. 3d 225; 2015 U.S. Dist. LEXIS 53539), the court granted the Defendant's FRCP 12(b)(6) motion to dismiss the Plaintiff's STAA, 49 U.S.C. § 31105, on the ground that the STAA expressly sets forth a comprehensive administrative scheme for the resolution of claims of retaliation and does not create a private right of action.
[STAA Whistleblower Digest XIII B]
EMPLOYER'S SUIT SEEKING ORDER REQUIRING DOL TO DECLARE ITS ATTENDANCE POLICY NOT TO VIOLATE DOT REGULATIONS OR THE STAA DISMISSED WHERE DOL HAD NOT YET RENDERED A FINAL, REVIEWABLE DECISION; EXHAUSTION OF ADMINISTRATIVE REMEDIES REQUIRED; OSHA'S FAILURE TO ISSUE FINDING OR AN ORDER WITHIN 60 DAYS DOES NOT CREATE DISTRICT COURT JURISDICTION
In Oak Harbor Freight Lines, Inc. v. Harris , No. 13-cv-1100 (D.Or. Dec. 13, 2013), the Plaintiff, a service carrier, sought a declaration from the Acting Secretary of Labor that its attendance policy was not in violation of the DOT regulation at 49 C.F.R. § 392.3 or the STAA whistleblower provision at 49 U.S.C. § 31105. Three drivers had filed complaints under the STAA with OSHA stating that they had been retaliated against by the Plaintiff for refusing to drive when too sick to drive. An OSHA investigator proposed settlements, and according to the Plaintiff threatened that if the Plaintiff did not settle, she would recommend to her supervisor that there was sufficient evidence to show a violation of the STAA. At one point, the investigator proposed a settlement that included $10,000 in punitive damages, and warned that if the settlement was not promptly made, OSHA would increase the punitive damages, which could reach up to $250,000. In its federal district court complaint, the Plaintiff argued that its attendance policy did not retaliate against drivers for not driving on days that they are too fatigued or sick to drive, but rather provide drivers an opportunity to perform non-driving tasks and earn a regular wage on those days. Drivers who merely call in sick and do not report to work, however, are subject to progressive disciplinary action. The Plaintiff argued that such an attendance policy does not violate 49 C.F.R. § 392.3 or the STAA whistleblower provision at 49 U.S.C. § 31105.
The Defendant, the Acting Secretary of Labor, argued that the Plaintiff's complaint must be dismissed because (1) Section 31105 requires the Plaintiff to channel its challenges to the Secretary's actions through the administrative review process and to a court of appeals, and not a district court; (2) the Plaintiffs claims are not reviewable under the APA; and (3) the Plaintiff's claims are not ripe.
The Plaintiff argued that OSHA blocked review under the STAA by not timely issuing a preliminary order. The court noted the STAA's detailed procedures for how whistleblower complaints are processed, and found that the facts of the case simply show that the Secretary had not yet made any findings or orders subject to administrative or judicial review under the STAA. The court stated: "By prematurely seeking a declaration by this Court stating that Plaintiff's attendance policy is lawful and that Plaintiff did not unlawfully retaliate against employees, Plaintiff attempts to evade the carefully crafted grievance process articulated by the STAA. Plaintiff's pre-enforcement action, based solely on the Secretary's settlement offers, Plaintiff's anticipation of adverse findings or orders by the Secretary, and the Secretary's decision to not issue any findings or orders at this time, simply do not establish that Plaintiff's avenue for administrative or judicial redress has been �blocked.'" Slip op. at 11.
The court rejected the Plaintiff's argument that the district court could review its claims because they are "collateral" to the STAA and lie outside OSHA's expertise. The court stated that "Contrary to Plaintiff's bald assertions, whether Plaintiff's attendance policy is lawful and whether the disciplinary actions Plaintiff took against [the three drivers] violated § 392.3 and § 31105 are the type of disputes that fall squarely within OSHA's expertise and the STAA's provisions." Slip op. at 12 (citations omitted). The court found that the STAA's silence about pre-enforcement challenges such as those brought by the Plaintiff only supported the conclusion that Congress did not intend the district court to have jurisdiction over the Plaintiff's claims. The court further found that the Plaintiff had not adequately explained why its claims cannot be meaningfully addressed in administrative proceedings or by a court of appeals. The court found nothing in the STAA or the legislative history indicating that Congress intended to provide district court jurisdiction if the Secretary failed to issue findings or a preliminary order within 60 days after the filing of the complaint.
The Plaintiff responded to the Defendant's failure-to-exhaust-administrative-remedies motion by arguing that failure to exhaust should be excused because it has suffered irreparable harm and because OSHA made it impossible to exhaust its administrative remedies by not issuing a preliminary order. The court rejected the Plaintiff's response, again finding no evidence that OSHA had blocked the Plaintiff from pursuing administrative or judicial review under the STAA, and finding that simply alleging irreparable harm was not supported by any authority as a ground for circumventing the specific review process laid out in the STAA. The Plaintiff asserted that its claims are reviewable under the APA because OSHA's actions amounted to de facto unpublished interpretations of the DOT and STAA regulations, and the STAA. The court found the Plaintiff's assertion without merit; no final agency action had occurred. The court moreover found no allegation by the Plaintiff showing that its claims were ripe for review.
XIII B Where a Civil Action Raises Whistleblower Claims Arising from an Employee's Discharge, the Civil Action will be Dismissed unless Administrative Remedies are Exhausted
A truck driver brought an action against his employer
alleging that he was terminated in retaliation for filing a
formal complaint with the Department of Transportation and for
challenging the employer's incorrect payment of mileage rates.
The evidence showed that the complaints to DOT were made two
months after complainant was terminated and that the employer had
no knowledge of the complaints. Further, mileage rates were
recalculated by the employer, and wage increases were paid to the
drivers, including to complainant. Although the court was
unpersuaded that the plaintiff could prevail on its claims in
light of the evidence adduced, it dismissed the action without
prejudice on the grounds that the plaintiff had failed to exhaust
Zaleski v. Customized
United States District Court for
the Eastern District of Michigan, Southern Division, 1991 U.S.
Dist. LEXIS 15965; Empl. Prac. Dec. (CCH), ¶41,026 (May 2,
In Lachica v. Trans-Bridge Lines , ARB No. 10-088, ALJ No. 2010-STA-27 (ARB Feb. 1, 2012), under the STAA regulations in effect when the ALJ conducted the hearing, the Secretary of Labor was permitted to defer to the outcome of arbitration proceedings under an applicable collective bargaining agreement when the arbitration �dealt adequately with all factual issues,� the proceedings were �fair, regular, and free of procedural infirmities,� and the outcome of the proceedings �was not repugnant to the purpose and policy of the Act.� 29 C.F.R. 1978.112(c). The regulations were amended in 2010 to delete this provision. In Lachica , the Complainant had been discharged for unprofessional behavior following a grievance hearing, and under the CBA the discharge went to arbitration and was denied. The ALJ reviewed the transcript of the arbitration hearing and the arbitrator's decision, and deferred to it. The arbitrator had concluded that the Complainant had been fired for just cause in that he engaged in unprofessional behavior toward passengers.
On appeal, the ARB reviewed the record of the arbitration and concluded that neither the subject matter of the hearing nor the arbitrator's decision addressed the whistleblower protections of the STAA. The arbitrator, for example, did not determine whether the Complainant engaged in protected activity under the STAA or whether such activity contributed to the Complainant's lay-off and eventual discharge. Thus, the ARB vacated the ALJ's dismissal and remanded for further proceedings. The ARB did not decide whether it was appropriate to defer to the arbitration proceedings under a regulation that was later removed.
[STAA Digest XIII C]
DEFERRAL TO ARBITRATION PROCEEDING; STANDARDS
"The standards in STAA cases for deferral to the outcome of other proceedings are that those proceedings dealt adequately with all factual issues, that the proceedings were fair, regular and free of procedural infirmities, and that the outcome of the proceedings was not repugnant to the purpose and policy of the STAA. 29 C.F.R. §1978.112(c) (1996)." Ass't Sec'y & Porter v. Greyhound Bus Lines , 96-STA-23 @ 2 (ARB June 12, 1998).
[STAA Whistleblower Digest XIII C]
DEFERRAL TO ARBITRATION; ERROR TO DEFER WHERE GRIEVANCE PROCEEDING DISPOSED BASED ON SETTLEMENT
In Tuggle v. Roadway Express, Inc. , ARB No. 03-081, ALJ No. 2003-STA-8 (ARB May 28, 2004), the Complainant had filed a CBA grievance and later a STAA complaint. The CBA grievance was settled. After DOL initially denied the STAA complaint, the Complainant requested a hearing before an ALJ. The ALJ granted the Respondent's motion to dismiss under 29 C.F.R. § 1978.112(c) based on deferral to the settlement of the CBA grievance. The ALJ found that the facts at issue were the same, that the settlement was "fair, regular and free of procedural infirmities." The ARB observed, however, that section 1978.112(c) also provides if a proceeding in another forum is "dismissed without adjudicatory hearing thereof, such dismissal will not ordinarily be regarded as determinative of the [STAA] complaint." Since the Complainant's case was settled, the ARB found that his STAA rights were not adjudicated and consequently the ALJ erred in deferring to the settlement.
[STAA Whistleblower Digest XIII C]
GRIEVANCE ARBITRATION; ALJ PROPERLY ADMITTED RECORD FROM GRIEVANCE PROCEEDING INTO THE STAA RECORD, BUT ALSO PROPERLY DECLINED TO DEFER
In Calmat Co. v. USDOL , No. 02 73199 (9th Cir. Apr. 19, 2004) (case below ARB No. 99 114, ALJ No. 1999 STA 15), the 9th Circuit Court of Appeals affirmed the ALJ's conclusion (and the ARB's affirmance of that conclusion) that she should not defer to CBA grievance arbitration proceeding because the legal issues in that proceeding differed significantly from, and did not address adequately all the factual issues important to, an STAA whistleblower proceeding. The court held that " [t]he Department of Labor's policy of deferring STAA claims to the outcome of an arbitration under a CBA only in narrow circumstances is consistent with the national policy favoring arbitration." Id. at 5123. See 29 C.F.R. § 1978.112(a)(3).
The court observed that the ALJ properly admitted and weighed as evidence the record from the arbitration, citing Roadway Express v. Brock , 830 F.2d 179, 180 82 (11th Cir. 1987).
[STAA Whistleblower Digest XIII C]
GRIEVANCE ARBITRATION; STANDARD FOR WHEN TO DEFER
In Germann v. Calmat Co. , ARB No. 99 114, ALJ No. 1999 STA 15 (ARB Aug. 1, 2002), the ARB ruled that the ALJ's determination not to defer to a grievance arbitration was fully consistent with the standard enunciated recently by the ARB: "Under judicial and administrative precedent, this Board defers to the outcome of another preceding only if the tribunal has given full consideration to the parties' claims and rights under the STAA. Scott v. Roadway Express, Inc. , ARB No. 99 013, ALJ No. 98 STA 8, slip op. at 9 (ARB July 28, 1999). See also Brame v. Consolidated Freightways , No. 90 STA 20, slip op. at 3, n. 3 (Sec'y June 17, 1992)."
[STAA Digest XIII C]
DEFERRAL TO OTHER PROCEEDINGS
The ARB defers to the outcome of another proceeding only if that tribunal has given full consideration to the parties' claims and rights under the STAA, and if it affords all of the procedural protections provided in hearings before ALJs. Scott v. Roadway Express, Inc. , ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999).
In Lane v. Roadway Express, Inc. , ARB No. 03 006, ALJ No. 2002 STA 38 (ARB Feb. 27, 2004), the ALJ recommended dismissal because the Respondent had removed the complained of warning letter from the Complainant's file, thereby rendering the complaint moot. The ARB, however, found that the ALJ had overlooked the fact that the complaint had contained two separate adverse actions discipline and lost wages and remanded for further proceedings. In regard to the mootness doctrine, the Board wrote:
Under Article III of the Constitution, the jurisdiction of federal courts extends only to actual cases and controversies. A federal court may not adjudicate disputes that are moot. McPherson v. Mich. High Sch. Athletic Ass'n, Inc ., 119 F.3d 453, 458 (6th Cir.1997) (en banc) (quotation omitted). Although administrative proceedings are not bound by the constitutional requirement of a "case or controversy," the Board has considered the relevant legal principles and case law developed under that doctrine in exercising its discretion to terminate a proceeding as moot. See, e.g., United States Dep't of the Navy, ARB No. 96 185 (ARB May 15, 1997); see also Assistant Sec'y and Curless v. Thomas Sysco Food Servs. , No. 91 STA 12, slip op. at 4 7, Sec'y, Sept. 3, 1991, vacated on other grounds sub nom., Thomas Sysco Food Servs. v. Martin , 983 F.2d 60 (6th Cir. 1993).
ootness results "when events occur during the pendency of a litigation which render the court unable to grant the requested relief." Carras v. Williams , 807 F.2d 1286, 1289 (6th Cir. 1986), citing Southern Pac. Terminal Co. v. Interstate Commerce Comm'n , 219 U.S. 498 (1911). Allegations become moot when a party "has already been made whole for damage it claims to have suffered." Madyun v. Thompson, 657 F.2d 868, 872 (7th Cir. 1981). The burden of demonstrating mootness rests on the party claiming mootness. Ammex, Inc. v. Cox , 351 F.3d 697, 705, (6th Cir. 2003), citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 189 (2000).
[STAA Whistleblower Digest XIII D]
MOOTNESS DOCTRINE; AVAILIBILITY OF ATTORNEY'S FEES DOES NOT PREVENT A CASE FROM BECOMING MOOT; REQUEST FOR ABATEMENT; CAPABLE OF REPETITION, YET EVADING REVIEW STANDARD
In Agee v. ABF Freight System, Inc. , 2004-STA-40 (ALJ Sept. 27, 2004), the Complainant called in sick and several days later the Employer issued a warning notice citing the Complainant for habitual absenteeism. Thereafter the Complainant filed a STAA whistleblower complaint alleging that the warning notice violated the STAA, and requesting that the Employer be ordered to expunge the letter from the Complainant's file, abate the violations, and pay the Complainant's attorney's fees and costs. Under the relevant collective bargaining agreement warning notices were required before the Respondent could discipline employees for habitual absenteeism. The CBA also provided that such notices only remain in effect for nine months. By the time the matter reached the ALJ, the nine months had passed and the Respondent moved for summary decision under the doctrine of mootness.
The ALJ found the Complainant's response to the motion for summary decision was unpersuasive and that the case was moot. The Complainant argued that the Complainant was entitled to an award of attorney's fees. The ALJ, however, found that potential entitlement to attorney's fees was not a sufficient interest to save the claim from mootness. The ALJ found that the Complainant's demand for an order of abatement did not present an actual case or controversy because the expiration of the notice, in effect, healed his injury. The ALJ found that the Employer had never exploited the warning notice and was not engaged in any ongoing activity that the ALJ could direct it to abate. The ALJ also found that the Complainant had not demonstrated that the "capable of repetition, yet evading review" exception to the mootness doctrine applied.
[STAA Whistleblower Digest XIII D]
SUMMARY JUDGMENT; MOOTNESS DOCTRINE; EMPLOYER WITHDREW SUSPENSION LETTERS AND COMPLAINANT HAD SUFFERED NO LOST TIME, WAGES OR BENEFITS
In Ciofani v. Roadway Express, Inc. , 2004-STA-46 (ALJ Nov. 18, 2004), the ALJ recommended summary judgment in favor of the Respondent where, prior to hearing, the Respondent rescinded all suspension letters that had been the subject of the complaint, the Complainant had not served any of the suspensions, and all references to the suspension letters were removed from his personnel file. The Complainant did not incur any lost time, wages or benefits related to the suspension letters. The ALJ agreed with the Respondent that the complaint had been mooted, and noted that the Sixth Circuit had so ruled in a similar case, Thomas Sysco Food Services v. Martin , 938 F.3d 60 (6th Cir. 1993). The Complainant contended that the dispute was not moot because there remained claims for attorney fees and costs, a request for an order of abatement, and his belief that he could be subjected to the same action in the future. The ALJ rejected these contentions, finding that attorney fees or costs could not be awarded because the Secretary had not issued an order under § 31105(a)(3)(A), that an order to abate was not appropriate because the Secretary had found no merit to the complaint and because the withdrawal of the letters left nothing to abate. Finally, the ALJ did not find facts sufficient to support a "capable of repetition, yet avoiding review" exception to the mootness doctrine.