[STAA Whistleblower Digest X F] SETTLEMENT; PARTIES' AGREEMENT CANNOT CONCUR ENFORCEMENT JURISDICTION ON OALJ OR ARB BEYOND WHAT IS PERMITTED UNDER STATUTE OR REGULATION
In Ass't Sec'y & Bryant v. Mendenhall Acquistion Corp., ARB No. 06-027, ALJ No. 2003-STA-36 (ARB Nov. 30, 2006), the ARB approved the parties' settlement agreement. One of the terms of the settlement purported to confer on the Office of Administrative Law Judges jurisdiction to enforce the agreement. The ARB observed that "[t]he authority and jurisdiction of the ALJs and this Board are governed by statute and regulation, and can not be modified by the parties."
Clark v. Pace Airlines, Inc., ARB No. 04-150, ALJ No. 2003-AIR-28 (ARB Nov. 30, 2006)
[AIR21 Whistleblower Digest; Burden of Proof and Production; Causation] TEMPORAL PROXIMITY; INTERVENING EVENT REBUTS PRESUMPTION
In Clark v. Pace Airlines, Inc., ARB No. 04-150, ALJ No. 2003-AIR-28 (ARB Nov. 30, 2006), the ARB summarized the law concerning proof of causation through temporal proximity: "Retaliatory motive may be inferred when an adverse action closely follows protected activity. An inference of discrimination, i.e., the protected activity contributed to the adverse action, is less likely to arise as the time between the adverse action and the protected activity increases. But if an intervening event that independently could have caused the adverse action separates the protected activity and the adverse action, the inference of causation is compromised." USDOL/OALJ Reporter at 12 (footnotes omitted).
In Clark, the ARB found that the Complainant's conduct during a flight in which the aircraft had been out of radio contact with Air Traffic Control (the event which the Respondent proffered as the legitimate non-discriminatory reason for firing the Complainant) was an independent intervening event that rebutted the Complainant's argument that he proved discrimination because of temporal proximity. The ARB also found that substantial evidence supported the ALJ's finding that the Complainant had not established pretext.
[STAA Whistleblower Digest IV F] BLACKLISTING; POLICY OF NO-REFERENCE OR MINIMAL INFORMATION DOES NOT ESTABLISH THAT THE RESPONDENT WAS TRYING TO PREVENT THE COMPLAINANT FROM OBTAINING A NEW JOB; SUBJECTIVE FEELING BY WITNESS IS ALSO INSUFFICIENT
In Ramirez v. Frito-Lay, Inc., ARB No. 06-025, ALJ No. 2005-STA-37 (ARB Nov. 30, 2006), the Complainant alleged that, by refusing to provide information about his prior employment, the Respondent blacklisted him in violation of the STAA. The ARB, however, found that the Complainant failed to meet his burden of proving that the Respondent had provided information that prevented the Complainant from obtaining prospective employment with a new employer. The Respondent had initially followed a "no reference" policy, which only provided a toll-free number for a prospective employer to verify employment with the Respondent. The ARB found that the assistant who provided the toll-free number to the prospective employer did not know the Complainant and was not trying to keep him from getting a new job. When pressed by the prospective employer's lawyer, who knew that under new DOT regulations the Respondent was required to give more than just dates of employment, the Respondent's legal office provided confirmation that the Complainant had passed a drug screen test and had no reportable accidents. The Complainant was later hired by the new employer.
The Complainant admitted that he did not know if anyone from the Respondent was trying to prevent him from obtaining a new job. His only evidence consisted of a comment from a supervisor from his new employer that the Complainant must have done something pretty bad if the Respondent did not want to answer questions about his employment. The ARB found that a "gut feeling" does not prove blacklisting. Rather there must be evidence of a specific act.
[STAA Whistleblower Digest XI B 2] DISMISSAL FOR CAUSE; COMPLAINANT'S REFUSAL TO PARTICIPATE IN CONFERENCE CALL, REFUSAL TO FOLLOW ALJ'S ORDERS, AND FAILURE TO PROSECUTE
In Somerson v. Eagle Express Lines, Inc., ARB No. 06-023, ALJ No. 2004-STA-12 (ARB Nov. 30, 2006), the ARB affirmed the ALJ's entry of a default judgment against the Complainant where the Complainant had refused to participate in a pre-hearing conference call, failed to follow the ALJ's orders, failed to demonstrate good cause in response to the ALJ's show cause order, and failed to file a brief or argument before the ARB. The Board stated that it "will affirm an ALJ's recommended decision and order on the grounds of abandonment, where the facts dictate that a party has failed to prosecute his or her case." USDOL/OALJ Reporter at 3, quoting Larue v. Kllm Transports, Inc. ARB No. 02-024, ALJ No. 01-STA-54, slip op. at 2 (ARB July 22, 2003).
[Nuclear and Environmental Whistleblower Digest XI A 2 a] CAUSATION; STANDARD OF PROOF IN CAA CASE IS THAT PROTECTED ACTIVITY WAS A MOTIVATING FACTOR IN ADVERSE ACTION; PRETEXT NOT SHOWN MERELY BY PRESENTING SOME EVIDENCE, IF SUCH EVIDENCE IS NOT A PREPONDERANCE; INTERVENING EVENT BREAKS CAUSAL INFERENCE
In Lopez v. Serbaco, Inc., ARB No. 04-158, ALJ No. 2004-CAA-5 (ARB Nov. 29, 2006), the Complainant had reported leaks in bags used to collect hazardous waste and refused to turn on the transfer pump that would fill those bags. A supervisor turned on the pump and left for home, leaving the Complainant at the site. Later, the Complainant was found in a position that the Respondent's witnesses considered to be sleeping, and the Complainant was fired based on the Respondent's policy that sleeping on the job was grounds for termination. The Complainant alleged that the firing was based on trumped up charges, and that he was in fact fired for complaining about turning on the transfer pump.
On appeal, the ARB stated that "[t]o show that adverse action was taken 'because of' protected activity, [the Complainant] must show that his protected activity was a 'motivating' factor in [the Respondent's] decision to dismiss him." USDOL/OALJ Reporter at 4 (footnote omitted) (the footnote contains a clarification that the ARB misspoke in Saporito v. Central Locating Servs., ARB No. 05-004, ALJ No. 2001-CAA-13 (ARB Feb. 28, 2006), when it indicated that the complainant's burden was to show that his protected activity was a "contributing" factor; it should have said "motivating" factor; the Board observed that a complainant "must prove more when showing that protected activity was a 'motivating' factor than when showing that such activity was a 'contributing factor'").
Although circumstantial evidence suggested that the Complainant was fired because he reported the emission problem, the ARB found that it was not a preponderance of the evidence. Rather, the record established that he was fired for sleeping on the job, a serious infraction of company rules.
The ARB also found that the Complainant had not established that the sleeping infraction ground was pretext. The Board found that the intervening incident of discovering the Complainant in a position where he appeared to be sleeping on the job "eliminated the causal link that otherwise might have been suggested by the temporal proximity between the protected activity and the adverse action." USDOL/OALJ Reporter at 8 (footnote omitted).
Loss Prevention, Inc. v. Administrator, Wage and Hour Div., USDOL, ARB No. 06-116, ALJ No. 2003-SCA-2 (ARB Nov. 29, 2006)
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; SUBJECTIVE BELIEF BY COMPLAINANT THAT SHE MIGHT NOT BE TERMINATED DOES NOT WARRANT TOLLING
In Ndiaye v. CVS Store No. 6081, ARB No. 05-024, ALJ No. 2004-LCA-36 (ARB Nov. 29, 2006), the Complainant was fired by the Respondent. Several weeks later, the Complainant's counsel sent a letter to the Respondent claiming retaliatory suspension based on the Complainant's reporting of H-1B violations. The Respondent responded, stating that it was considering further review. The Complainant, however, never worked for or received any payment or benefits from the Respondent after the date of the original firing.
The Complainant filed claims with the EEOC and a state unemployment agency, but did not file a complaint with DOL's Wage and Hour Division until more than a year and a half later. The limitations period for filing a LCA retaliation claim is 12 months after the latest date on which the alleged violation(s) were committed. See 20 C.F.R. § 655.806(a)(5).
Wage and Hour and the ALJ both found that the complaint was untimely. On review, the Complainant argued that her attorney's follow-up letter and the Respondent's response amounted to an on-going conflict with no resolution. The ARB, however, agreed with the ALJ that the Complainant was not entitled to equitable tolling. The ARB wrote:
... Although the Complainant contends that she believed that her employment was merely suspended and that future employment might be possible, a subjective belief by one party that termination might not occur does not toll the statute of limitations. An objective reading of the letter does not lead the reader to the belief that it constituted a continuance of the employment contract between CVS and Ndiaye.
The ALJ decided that the August 22, 2002 letter was not evidence of a continuing violation sufficient to toll the statute of limitations. Further, the ALJ ruled that after the August 22, 2002 letter, regardless of whether the employment action was a firing or a suspension, neither side acted in any manner to extend the employment relationship sufficient to toll the statute of limitations. The ALJ's interpretation of the letter is valid.
USDOL/OALJ Reporter at 6-7 (footnotes omitted).
TIMELINESS OF COMPLAINT; ACCEPTANCE OF CLAIM BY WAGE AND HOUR FOR FILING DOES NOT CURE LACK OF TIMELINESS
In Ndiaye v. CVS Store No. 6081, ARB No. 05-024, ALJ No. 2004-LCA-36 (ARB Nov. 29, 2006), the Complainant argued on appeal that the fact that DOL's Wage and Hour Division accepted her case for investigation should toll the time period for filing her complaint. The ARB, however, observed that Wage and Hour stopped its investigation once it determined that the claim was not timely filed. The ARB found that this circumstance was not relevant to whether the complaint was timely: "...the WHD could not decide whether she timely filed her complaint without first accepting the case for investigation." USDOL/OALJ Reporter at 7.
