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Summary:

[Nuclear and Environmental Digest XIII B 18]
ADVERSE ACTION; REFUSAL TO ACCEPT COMPLAINANT'S RESCISSION OF EARLIER RESIGNATION

In Addis v. Exelon Nuclear Generation Co, LLC, ARB No. 05-118, ALJ No. 2004-ERA-23 (ARB Oct. 31, 2007), the ALJ concluded that the Complainant had failed to demonstrate by a preponderance of the evidence that the Respondent's refusal to accept her rescission of an earlier resignation was adverse action. The ARB wrote: "Although the ALJ could have dismissed the complaint for failure to establish adverse action, the ALJ went on to examine whether Addis's protected activity was a contributing factor to the alleged adverse action because he found the law unsettled on the issue of whether an employer's refusal to accept a rescission of a resignation is adverse action. ... He concluded that the decision to accept her resignation was based on her "substandard performance as a unit supervisor" and not on her protected activity. …" The ARB affirmed the ALJ's finding that the Complainant had failed to prove by a preponderance of the evidence that her alleged protected activity contributed to the Respondent's decision to terminate her employment, and adopted the ALJ's decision.

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[Note: This is a reissue of a decision originally issued on Sept. 28, 2007. The reissued decision makes slight changes to the penultimate paragraph See Order Reissuing Case PDF | HTML.].

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Summary:

[STAA Digest IV A 2 d]
EMPLOYER’S KNOWLEDGE OF PROTECTED ACTIVITY AT TIME OF DECISION TO TERMINATE EMPLOYMENT

In Baughman v. J.P. Donmoyer, Inc., ARB No. 05-105, ALJ No. 2005-STA-5 (ARB Sept. 28, 2007, and reissued with corrections on Oct. 31, 2007), the ARB affirmed the ALJ’s holding that the Complainant did not prove by a preponderance of the evidence that the officials who decided to terminate his employment knew about his protected activity.

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Summary:

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; FILING OF EEOC COMPLAINT DOES NOT JUSTIFY INVOCATION OF WRONG FORUM AS GROUND FOR EQUITABLE TOLLING

In Bedwell v. Spirit-Miller NE, LLC, ARB No. 07-038, ALJ No. 2007-STA-6 (ARB Oct. 31, 2007), the Complainant filed an untimely complaint under the STAA, but sought equitable tolling because he had filed an EEOC Charge of Discrimination. The ARB found that the EEOC charge, however, did not justify tolling. It did not constitute a complaint alleging that the Complainant's employer violated the STAA, but rather the pursuit of an alternative remedy with an agency having jurisdiction to award relief under statutes other than the STAA.

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Summary:

Approval of settlement agreement.

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Summary:

[STAA Digest X F]
SETTLEMENT; ARB DOES NOT HAVE THE AUTHORITY TO IMPOSE SANCTIONS FOR ALLEGED BREACH OF SETTLEMENT AGREEMENT

In Bricklen v. Great Lakes Chemical Corp. , ARB No. 05-144, ALJ No. 2005-CAA-8 (ARB Oct. 31, 2007), the ALJ recommended approval of the parties' settlement agreement. Before the ARB, the Complainant sought damages for the Respondent's alleged breach of the settlement agreement. The ARB held that the issue of whether a settlement agreement has been breached is not a matter for the Board to determine. The Board wrote: "'A settlement is a contract. Its construction and enforcement are dictated by principles of contract law.' The CAA whistleblower section provides for enforcement of settlement agreements in the appropriate United States district court. Thus, the federal district courts, not this Board, have jurisdiction to consider actions based on alleged settlement breaches." Slip op. at 2-3 (footnotes omitted). The Board therefore restricted its review to ascertaining whether the ALJ properly approved the settlement agreement.

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Summary:

Approval of settlement agreement.

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Summary:

Approval of settlement agreement.

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Summary:

Dismissal for failure to prosecute.

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Summary:

[AIR21 Digest]
SCOPE OF ARB REVIEW; ARGUMENT NOT RAISED IN PETITION FOR REVIEW IS WAIVED

An argument not raised in a petition for review of an ALJ's AIR21 whistleblower decision is waived before the ARB.  Majali v. Airtran Airlines, ARB No. 04-163, ALJ No. 2003-AIR-45 (ARB Oct. 31, 2007) (ALJ had found that an informal suspension was not adverse action; Complainant did not contest that finding in his initial brief before the ARB, and first addressed it in a reply brief).

[AIR21 Digest]
SCOPE OF ARB REVIEW; ARGUMENT NOT MADE BEFORE THE ALJ

An argument not made before the ALJ cannot be raised for the first time on appeal to the ARB .  Majali v. Airtran Airlines, ARB No. 04-163, ALJ No. 2003-AIR-45 (ARB Oct. 31, 2007) (Complainant first raised on appeal a contention that a letter sent by one of Respondent's managers to an FAA investigator urging sanctions against the Complainant was an adverse action; ARB found that the argument had been forfeited because it had not been made before the ALJ).

[AIR21 Digest]
CAUSATION; DELAY BETWEEN PROTECTED ACTIVITY AND TERMINATION DOES NOT, STANDING ALONE, ESTABLISH THAT THE RESPONDENT USED DELAY AS A PLOY

In Majali v. Airtran Airlines, ARB No. 04-163, ALJ No. 2003-AIR-45 (ARB Oct. 31, 2007), the ARB rejected the Complainant's argument that the Respondent delayed the termination purposely so that it could argue that there had been a time lapse between the protected activity and termination, where aside from the delay itself, the Complainant provided no evidence to support his theory that the Respondent's delay was a mere ploy to provide immunity from suit.  The ARB stated that "[a] long delay between protected activity and termination does not prove causation, but rather generally makes causation less likely.  Absent any evidence to support [the Complainant's] theory, we conclude that the long delay is not itself evidence of causation."  USDOL/OALJ Reporter at 13.

[AIR21 Digest]
PRETEXT; EVEN IF THE ALJ REJECTS THE RESPONDENT'S PRIMARY REASON ARTICULATED FOR THE ADVERSE ACTION, THE ALJ IS NOT REQUIRED TO FIND THAT DISCRIMINATION WAS A CONTRIBUTING FACTOR IF THE TOTALITY OF THE EVIDENCE SHOWS THAT DISCRIMINATION DID NOT PLAY A PART

In Majali v. Airtran Airlines, ARB No. 04-163, ALJ No. 2003-AIR-45 (ARB Oct. 31, 2007), the ARB found that -- although the ALJ had rejected the Respondent's primary articulated reason for termination of the Complainant's employment, and had erroneously based her decision partly on a reason not articulated by the Respondent -- substantial evidence supported the ALJ's finding that the Complainant had failed to demonstrate that the Respondent's alternate reason for the adverse action – the Complainant's unreasonable demands in settlement negotiations and the consequent failed negotiations – was a pretext for discrimination.  The ARB observed that although the ALJ, being aware that the Complainant had proven the Respondent's primary reason to be false, might have determined from that falsity that discrimination was at least a contributing factor in the termination, the  ALJ was not required to do so.  Rather, the ALJ could, based upon the totality of the evidence, find that discrimination did not play a part in the Respondent's termination decision. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146-47 (2000) (clarifying that a false explanation by the employer permits, but does not require, a finding that discrimination played a part in the decision); Wilson v. AM Gen. Corp., 167 F.3d 1114, 1120 (7th Cir. 1999) (noting that the falsity of one explanation may at times justify judgment for the plaintiff, even if the employer's other reasons are not proven false).

[AIR21 Digest]
NONDISCRIMINATORY REASONS FOR ADVERSE ACTION NOT ARTICULATED BY DEFENDANT, BUT CONCLUSIVELY REVEALED BY THE RECORD; ARB SUGGESTS THAT CASELAW INDICATING THAT TRIAL COURT MAY NOT BASE A DECISION ON A REASON NOT ARTICULATED BY THE DEFENDANT MAY NEED TO BE RECONCILED WITH LANGUAGE FROM THE SUPREME COURT'S DECISION IN REEVES

In Majali v. Airtran Airlines, ARB No. 04-163, ALJ No. 2003-AIR-45 (ARB Oct. 31, 2007), the ARB found that there was no evidence to support the ALJ's finding that the Respondent had articulated that it terminated the Complainant's employment based in part on his ten-month absence from work.   In a footnote, the ARB reviewed caselaw to the effect that a trial judge cannot find the existence of a non-discriminatory reason that was not articulated by the defendant.  Because it affirmed the ALJ's dismissal of the complaint on other grounds, the ARB did not determine the interaction between these decisions and the Supreme Court's statement in Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000), that "there will be instances where, although the plaintiff . . . set forth sufficient evidence to reject the defendant's explanation, . . .  the record  conclusively revealed some other, nondiscriminatory reason for the employer's decision."  Reeves, 530 U.S. at 148.

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Summary:

[STAA Digest IV C 2 b]
PRETEXT NOT ESTABLISHED

In Montgomery v. Jack in the Box, ARB No. 05-129, ALJ No. 2005-STA-6 (ARB Oct. 31, 2007), the ARB found that the reason articulated by the Respondent for firing the Complainant at the time of the firing was failure to report a company vehicle accident, regardless of other reasons given at the hearing. The Complainant had gotten stuck on a median and paid for towing himself. No damage was done to the truck, and the Complainant did not report the incident to the Respondent. The Respondent, however, learned of the incident and fired the Complainant following an investigation. On appeal, the Complainant argued that there had not been an accident that needed to be reported, that the Respondent had no policy defining what constituted an accident, and therefore the non-reporting ground for the firing was pretext. The ARB, however, found that substantial evidence supported the ALJ’s finding that the incident was, in fact, an accident. The ARB also found that even if the Respondent’s policy did define "accident," and even if the incident did not fall within that definition of "accident," the Complainant had not presented evidence that the Respondent terminated him because he complained about violations of DOT hours of service and condition of vehicle regulations.

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Summary:

[STAA Digest II H 4]
SCOPE OF ARB REVIEW; IN STAA CASES, ARB IS REQUIRED TO EXAMINE ALJ'S DECISION EVEN IF THE PARTIES DO NOT FILE APPELLATE BRIEFS OR FILE BRIEFS THAT DO NOT IDENTIFY THE DISPOSITIVE LEGAL ISSUES

In Minne v. Star Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the ARB wrote:

   The regulations implementing the STAA require us to review every ALJ decision issued under Section 109(a), even if no party files a brief.  Thus, these regulations require us to examine the ALJ's decision even if the parties either do not file briefs upon appeal or file briefs that do not identify the dispositive legal issues.  In examining the ALJ's decision, we review his legal conclusions de novo, and his factual findings under the substantial evidence standard.

USDOL/OALJ Reporter at 7-8 (footnotes omitted).

[STAA Digest II E 3]
ALJ DECISION; ARB INDICATES THAT IT WANTS ALJS TO EXPLICITLY MAKE A FINDING ON COVERAGE, EVEN IF IT IS NOT DISPUTED

In Minne v. Star Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the ARB indicated that even if coverage is not disputed and that such is assumed, it would be helpful for the ALJ to so state explicitly in the decision and to state his reasons.

[STAA Digest V A 3 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; COMPLAINT BROUGHT UNDER SECTION 31105(a)(1)(B)(i) REQUIRES SHOWING OF ACTUAL VIOLATION; ARB CANNOT CONSIDER A REFUSAL TO DRIVE CLAIM UNDER SECTION 31105(a)(1)(A) "COMPLAINT" PROVISION UNLESS THE RESPONDENT HAD NOTICE OF SUCH A CLAIM OR IT WAS ACTUALLY LITIGATED AT THE HEARING

In Minne v. Star Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the ALJ concluded that the Complainants ceased driving "because they believed that the trucks that they were assigned to drive were not in compliance with the applicable regulations."  The ALJ found that this perception was "justified," although it "may have been mistaken."  Having made these two findings, the ALJ appeared to have concluded that the refusals based upon this justified perception constituted "protected activity."  The ARB, thus, concluded that the ALJ appeared to have applied the standard applicable to a complaint brought under the STAA's complaint provision, 49 U.S.C.A. § 31105(a)(1)(A).  However, the Complainants brought their complaint under the (B)(i) refusal to drive provision.  The ARB observed that it had repeatedly held that under the refusal provision, a complainant must prove that an actual violation would have occurred, and a reasonable and good faith belief is not enough.  Because the ALJ had not made a clear finding as to whether, at the time of the refusal to drive, driving would have violated an applicable regulation, the ARB remanded for a determination on this issue.

In a footnote, the ARB observed:

   Where a complainant brings his complaint only under the STAA's refusal provision, we must not find a violation under the complaint provision unless the employer had notice of or actually litigated a section (a) complaint. See Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 356-57 (6th Cir. 1992) (where complainant raised only a refusal claim under section (b) and not a complaint claim under section (a), Secretary violated Due Process by finding that employer violated section (a)). There is no indication in the record that Minne and Privott made a section (a) complaint, or that such a complaint was litigated at the hearing. Moreover, there is no indication in the record that Minne and Privott engaged in or argued that they engaged in a refusal protected under section (B)(ii), despite their apparent attempt to recast their complaint on appeal. See Complainants' Brief (CB) at 5 (arguing that conditions at Star put Minne and Privott in "extreme danger"), 9-10 (citing to (B)(ii)). Therefore, we consider only whether Minne and Privott engaged in activity protected under the (B)(i) refusal provision.

USDOL/OALJ Reporter at n.9.

[STAA Digest IV B 1]
ADVERSE ACTION; UNDER THE STAA, ADVERSE ACTION INCLUDES NOT JUST DISCHARGE OR DISCIPLINE, BUT ALSO DISCRIMINATION

The STAA whistleblower provision prohibits "discharge . . . discipline or discriminat[ion] . . . regarding pay, terms, or privileges of employment" because of protected activity. 49 U.S.C.A. § 31105(a)(1) (emphasis added). Thus, in Minne v. Star Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the ALJ erred when he found no adverse action because the evidence did not show that the Complainants were fired, disciplined, or suffered any other adverse employment action, but did not actually discuss whether the Respondent had discriminated against the Complainants.  The ARB found that it was possible that the Complainants had suffered such discrimination when, for example, the Respondent found replacement drivers for the Complainants' shows [the Complainants being paid solely on commission for sales of ammunition made at gun shows] while their names still were listed on the assignment board, and the Respondent did not offer the Complainant work that did not require participation in driving trucks with possible violations.

[STAA Digest II H 4 b]
SCOPE OF ARB REVIEW; ALJ'S FINDING ON EXISTENCE OF ADVERSE ACTION IS A LEGAL CONCLUSION WHICH THE ARB REVIEWS DE NOVO

In Minne v. Star Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the Respondent argued that the ALJ's determination that no adverse action had taken place was a factual determination that the ARB should not disturb because it was supported by substantial evidence.  The ARB disagreed, holding that a finding on whether there had been adverse action was a legal conclusion subject to de novo review by the ARB.

[STAA Digest IV B 2 e]
ADVERSE ACTION; ABSENT AN ACTUAL RESIGNATION, AN EMPLOYER WHO DECIDES TO INTERPRET AN EMPLOYEE'S ACTIONS AS A QUIT OR RESIGNATION HAS, IN FACT, DISCHARGED THE EMPLOYEE

In Minne v. Star Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the ALJ found that the Complainants had not been fired because the record contained no evidence that the Respondent had explicitly fired the Complainants – the ALJ apparently concluding that it was the Complainants' behavior of deciding not to return to work that ended the employment relationship.  The ARB held that this was error, writing that "…under our precedent, except where an employee actually has resigned an employer who decides to interpret an employee's actions as a quit or resignation has in fact decided to discharge that employee."  USDOL/OALJ Reporter at 14.  The ARB held that because the did not actually resign but simply did not return to their jobs, the Respondent's "decision to remove them from the payroll rather than address the issues they had raised constituted a decision to terminate them for what Star presumed was job abandonment."  USDOL/OALJ Reporter at 15.  The ARB held, therefore, that adverse action had occurred.

In a footnote, the ARB rejected the Complainants' argument that they had been constructively discharged, because under ARB precedent, constructive discharge can only be found when a complainant actually resigns.  In the instant case, the Complainants argued that they did not resign.

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Summary:

FRY BROTHERS APPLIES TO JOB CLASSIFICATIONS BUT NOT TO WAGE RATES WITHIN THE CLASSIFICATION

UNDER BRUNETTI CONSTRUCTION THE ADMINISTRATOR CANNOT MERELY ASK THE LOCAL UNION HOW A DEFINITION SHOULD APPLY BUT MUST CONSIDER OTHER "CONCRETE PROJECT DATA"

In Tesco Builders, Inc., ARB No. 05-102 (ARB Oct. 31, 2007), a housing authority awarded the Appellant a contract to construct 98 new homes in a series of five attached town homes. The Appellant subcontracted electrical work. Under the applicable wage determination determined under a CBA, the hourly wage rate for electricians specified two different rates: a higher rate for electricans who work on projects "[n]ot including units built primarily for family residence, including mobile home parks, but including Residences exceeding 4 units under one roof," and a lower rate for electricians who work on projects consisting of "[u]nits built primarily for family residence, including mobile home parks. Residences not to exceed 4 units under one roof." The subcontractor paid the lower rate. The housing authority believed that the higher rate should apply and asked HUD for assistance in obtaining a wage determination from the Wage and Hour Administrator. The Administrator contacted the local union, and requested wage payment data. The union supplied data indicating that the higher rate should be paid, and Administrator relied on that data, citing the holding in Fry Bros. Corp.,WAB No. 76-06 (June 14, 1977).

On appeal, the ARB found that the Administrator had misread Fry Brothers. The Board wrote: "The issue in Fry Brothers was which classification of worker should perform a certain job, carpenters or laborers, and thus whether the contractor was liable for carpenter wages or laborer wages. The Wage Appeals Board held that where, as here, prevailing wage rates contained in a wage determination are based upon a CBA, proper classification of work duties under the wage determination must be determined according to the area practice of the unions that are party to the CBA. Fry Brothers does not instruct the Administrator to ask local union officials which wage rate within a classification applies, but only to clarify which classification applies. Thus, the Administrator’s argument that he 'must look to local area union practices to determine the proper classification and wage rate applicable to the work in question' constitutes an unwarranted extension of the Fry Brothers holding." USDOL/OALJ Reporter at 5-6 (footnotes omitted).

The ARB also found that the Administrator should have considered the decision in Brunetti Constr. Co., WAB No. 80-09, 1982 WL 155899 (Nov. 18, 1982), which presented the same issue. The ARB in Brunetti rejected the contention that Wage and Hour's obligation was solely to ask the local union business agent how a definition was applied. Rather, "[t]o resolve a dispute as to the nature and characteristics of a construction project, and thus decide which wage rate applies, the WAB suggested that the starting place is to examine the project drawings or specifications. From there, the factfinder should consider other "concrete project data" such as photographs and the "architectural, engineering, and structural elements of a project." USDOL/OALJ Reporter at 7 (footnotes omitted).

The ARB vacated the Administrator's final determination and remanded for proceedings consistent with the ARB's decision.

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Summary:

[STAA Digest IV C 2 b]
PRETEXT; PRETEXT NOT SHOWN MERELY BASED ON TEMPORAL PROXIMITY WHERE SUBSTANTIAL EVIDENCE SUPPORTED THE ALJ'S FINDINGS REGARDING THE COMPLAINANT'S VIOLATION OF COMPANY POLICY

In Wainscott v. Pavco Trucking, Inc., ARB No. 05-089, ALJ No. 2004-STA-54 (ARB Oct. 31, 2007), the ARB agreed with the ALJ that the Complainant had failed to prove that the Respondent's stated grounds for discharge – using a leased tractor without authorization and leaving a HAZMAT trailer in a lay-by, both in violation of company policy - were pretextual.   The ALJ had found that the Complainant had engaged in protected activity when he refused to drive in a dangerous ice storm, but that he was discharged for leaving the HAZMAT trailer unattended and taking the tractor home rather than for refusing to drive.  The Complainant established temporal proximity sufficient to establish a prima facie case; however, the inference raised by a prima facie case is not dispositive.  The Complainant's burden is not to establish temporal proximity but discrimination because of protected activity.    Moreover, substantial evidence supported the ALJ's findings that drivers were not allowed to take tractors home without permission, and that a lay-by was not an authorized place to leave a HAZMAT trailer under the Respondent's policy.

[STAA Digest II H 4]
HEARSAY; ARB REVIEWS ALJ'S ADMISSION OR EXCLUSION OF HEARSAY UNDER A STANDARD OF "DE NOVO" REVIEW FOR AN "ABUSE OF DISCRETION"

In Wainscott v. Pavco Trucking, Inc., ARB No. 05-089, ALJ No. 2004-STA-54 (ARB Oct. 31, 2007), the Complainant objected to the admission of a customer bill of lading and a cylinder tank check-in control on the ground, inter alia, that a proper foundation had not been laid because the Respondents' operations manager did not have first-hand knowledge, and because the information was allegedly irrelevant and contradictory.   The ARB noted that the STAA regulations specify that the OALJ Rules of Practice at 29 C.F.R. Part 18 apply, and stated that under those rules hearsay is inadmissible.  However, the ARB stated that it conducts de novo review for an abuse of discretion of an ALJ's decision to admit or exclude hearsay evidence.  Because the operations manager identified and described the two documents, and explained that he was in charge of them, the ARB found that he was qualified to establish the foundation for their admission, citing 29 C.F.R. § 18.803(6) (excepting records maintained "in the course of a regularly conducted business activity" from the general rule against admission of hearsay evidence).  The documents were also relevant to the issue of whether the Complainant was hauling HAZMAT materials when he left his trailer in an unauthorized location.

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Summary:

Approval of settlement agreement.

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Summary:

[SOX Digest XIV A]
REINSTATEMENT; ALJ DOES NOT HAVE THE AUTHORITY TO IMPOSE A MONETARY SANCTION FOR A RESPONDENT'S REFUSAL TO REINSTATE A COMPLAINANT EVEN AFTER THE ALJ DENIED A MOTION TO STAY AN OSHA REINSTATEMENT ORDER

In Windhauser v. Trane, ARB No. 05-127, ALJ No. 2005-SOX-17 (ARB Oct. 31, 2007), OSHA issued a preliminary order of reinstatement. The ALJ denied the Respondent's motion to stay the order of reinstatement, and the ARB denied a petition for review of the ALJ's order because it was an interlocutory appeal. Later, the ALJ approved a settlement, but awarded sanctions against the Respondent based on refusal to comply with the preliminary order of reinstatement. The ALJ reasoned that SOX's grant of authority to an ALJ to deny a motion to stay reinstatement, perforce granted the ALJ authority to preserve the integrity of that denial through imposition of administrative sanctions. The ALJ awarded the Complainant a pro rata portion of his salary and expected bonus for the months from the preliminary order of reinstatement to the settlement of the case. On appeal, the ARB held that the ALJ did not have the authority to impose monetary sanctions, and that any enforcement actions for failure to reinstate are, by statute, in the jurisdiction of the federal district courts. The ARB therefore vacated the sanction.

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Summary:

[SOX Digest XIII E]
PROTECTED ACTIVITY; COMPLAINT ABOUT MISMANAGEMENT IS NOT PROTECTED ACTIVITY ABSENT SHOWING OF ATTEMPT TO DEFRAUD INVESTORS

In Stojicevic v. Arizona-American Water, ARB No. 05-081, ALJ No. 2004-SOX-73 (ARB Oct. 30, 2007), the Complainant argued that the ALJ erred in his legal conclusion that the Complainant had not engaged in protected activity under the SOX on the theory that the Respondent's failure to inform the stockholders of the Complainant's complaints about mismanagement and violations of SDWA and local regulations constituted misrepresentations. The Board rejected this argument, writing:

However, as we held in Harvey v. Home Depot[, U.S A., Inc., ARB Nos. 04-114, 115, ALJ Nos. 2004-SOX-20, 36, slip op. at 14 (ARB June 2, 2006)]:

Providing information to management about questionable personnel actions, racially discriminatory practices, executive decisions or corporate expenditures with which the employee disagrees, or even possible violations of other federal laws such as the Fair Labor Standards Act or Family Medical Leave Act, standing alone, is not protected conduct under the SOX.  To bring himself under the protection of the act, an employee's complaint must be directly related to the listed categories of fraud or securities violations.  18 U.S.C.A. § 1514A(a); 29 C.F.R. §§ 1980.104(b), 1980.109(a). See Getman, slip op. at 9-10 (requiring that the employee articulate the nature of her concern).  A mere possibility that a challenged practice could adversely affect the financial condition of a corporation, and that the effect on the financial condition could in turn be intentionally withheld from investors, is not enough.

At most in this case, Stojicevic demonstrated that AAW's poor management could adversely affect its financial condition.  Accordingly, since Stojicevic did not demonstrate that AAW defrauded, or attempted to defraud, its investors, or violated any rule or regulation of the SEC, he has not shown that he engaged in protected activity under the SOX.

Slip op. at 13-14 (footnote omitted).

[Nuclear and Environmental Digest XII D 1 a]
PROTECTED ACTIVITY; ARB SUGGESTS MERELY RAISING A COMPLAINT RELATED TO WATER PRESSURE (AND THEREFORE PUBLIC SAFETY) IS NOT SUFFICIENT TO ESTABLISH PROTECTED ACTIVITY UNDER THE SDWA

In Stojicevic v. Arizona-American Water, ARB No. 05-081, ALJ No. 2004-SOX-73 (ARB Oct. 30, 2007), the Complainant was a project manager for a utilities company. The ALJ found that the Complainant had raised concerns with management about the capacity of a projected well to support the water needs of the community, including the maintenance of sufficient water pressure to put out fires. Although acknowledging that the SDWA is not specifically concerned with the subject matter of the well capacity and water pressure, the ALJ found that the Complainant had engaged in protected activity under the SDWA because his complaints related to public safety, "which is a main concern of the environmental whistleblower statutes generally." On review, the ARB stated that it would not review this finding because the Respondent had not challenged it. Nonetheless, the ARB noted that the complaint as described in the ALJ's decision did not implicate the coverage of the SDWA's enumerated protected activities (an SWDA whistleblower proceeding or a proceeding for the administration or enforcement of drinking water regulations or underground injection control programs of a State proceeding.) Thus, the ARB observed that the ALJ's finding of protected activity was "highly questionable."

[Nuclear and Environmental Digest XI C 2 b]
PRETEXT; INSUFFICIENT TO SHOW THAT RESPONDENT MISINTERPRETED THE TONE OF THE COMPLAINANT'S COMMUNICATIONS OR THAT THE COMPLAINANT BELIEVED THAT HIS ACTIONS WERE IN THE RESPONDENT'S BEST INTERESTS

In Stojicevic v. Arizona-American Water, ARB No. 05-081, ALJ No. 2004-SOX-73 (ARB Oct. 30, 2007), the Respondent's articulated reason for terminating the Complainant's employment was inappropriate behavior and insubordination. The Complainant argued that his e-mails – which the Respondent considered to be hostile and rude – were misunderstood because English was not his first language. The ARB agreed with the ALJ's finding that the Complainant had not been merely misunderstood in his e-mails. Moreover, the ARB indicated that merely establishing that the Respondent misinterpreted the e-mails was not sufficient to establish that the Respondent had an unlawful motive to discriminate in violation of the SDWA. The Complainant's burden was to establish that the proffered explanations were false and a pretext for discrimination. Similarly, the Complainant showed up for work on a day on which he was scheduled to serve a suspension and told to leave. He later showed up at a work site with a client. The Respondent found this to be insubordination contributing to the decision to discharge. The Complainant argued that he had previously scheduled the meeting with the trade representative, and that he had not had a chance to cancel the meeting. The ARB indicated that even if the Complainant believed that his actions were in the Respondent's best interests, this did not show that he had been suspended in retaliation for protected activity rather than because he insubordinately refused to comply with the suspension.

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Summary:

In Menter v. North County Transport, ARB No. 05-104, ALJ No. 2004-STA-61 (ARB Oct. 24, 2007), the Complainant alleged that the Respondent violated the STAA by disciplining him because he refused to drive a truck with unsafe tires. The ALJ recommended dismissal of the complainant. The ARB adopted the ALJ's decision. It affirmed the ALJ's finding that the Complainant had failed to prove that he engaged in protected activity under § 31105 (a)(1)(B)(i),(ii) and (a)(2) of the STAA since he did not prove that the condition of his tires violated safety regulations or that a reasonable person would have believed the condition of the tires were such that the truck was unsafe to drive.  The ARB also affirmed the ALJ's finding that even if the Complainant had engaged in protected activity, he failed to show that the Respondent terminated him from its employ.

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Summary:

[STAA Digest X A]
SETTLEMENT; PARTIES CANNOT AVOID DOL REVIEW OF ADJUDICATORY SETTLEMENT BY AGREEING TO WITHDRAWAL OF OBJECTIONS TO OSHA FINDINGS

In Nichols v. Roma of Dallas, ARB No. 06-113, ALJ No. 2006-STA-9 (ARB Oct, 21, 2007), the ALJ recommended approval of the parties' Joint Motion to Dismiss with Prejudice. Upon automatic review, the ARB issued an order informing the parties that the STAA regulations provide only two options for ending litigation short of a merits decision after a party has filed objections to OSHA findings or preliminary order: First, the party who requested an ALJ hearing may file with the ALJ (or the ARB if on appeal) a written withdrawal of  objections to the OSHA findings or order. In the instant case, although the parties requested that the case be dismissed with prejudice, the ALJ instead treated the motion as it if were a request to withdraw objections.  Second, the parties may settle the case. However, if the parties settle the case, they must file a copy with the ALJ or the ARB, and the ARB must approve the settlement. In the instant case, although the Complainant filed a Notice to Withdraw Objections with the Board, the parties, in their joint motion to dismiss, noted that they had resolved their differences, suggesting the possibility that the parties had entered into a settlement.  The ARB, therefore, notified the parties that it would not dismiss the complaint based on a settlement unless the settlement was provided to the Board for its review and approval. The ARB notified the parties that they must inform it of the method they intended to pursue and submit any settlement.

At first, the parties did not respond to the ARB's order. The ARB, however, had omitted a page from its earlier order, and it issued a corrected order. In the corrected order, it required the parties to show cause why the matter should not be remanded to the ALJ to be adjudicated on the merits. In response, the Respondent submitted a copy of a settlement agreement. The ARB noted that the materials submitted suggested that that parties "believed that they could circumvent the regulation's requirement that parties submit any settlement to the Board for approval by simply withdrawing objection to the Secretary's findings." Slip op. at 2-3 (footnote omitted). The ARB observed that the STAA and applicable regulations mandate that settlements be submitted for approval. The Board wrote that "had the parties attempted to consummate a settlement without the Department of Labor's approval, the settlement would not have been effective." Slip op. at 3. The Board then reviewed and approved the settlement.

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Summary:

Approval of Complainant's withdrawal of objections to OSHA's findings as provided for under 29 C.F.R. § 1978.111(c).

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Summary:

[STAA Digest II J]
APPELLATE BRIEFS; EXTENSION OF TIME TO FILE DENIED WHERE MOTION FOR EXTENSION WAS FILED BEYOND ORIGINAL DUE DATE AND DID NOT CITE ANY REASON JUSTIFYING LATE FILING

In Trammell v. New Prime, Inc. , ARB No. 07-109, ALJ No. 2007-STA-18 (ARB Oct. 5, 2007), the ARB had earlier granted the Complainant's motion for an extension of time to file its appellate brief where the motion was filed prior to the due date for the brief and established good cause for an extension. The ARB, however, denied in the instant order the Respondent's motion for an extension of time to file its brief where the motion was filed beyond the due date and did not cite any reason for allowing an extension.

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