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Summary:

[Nuclear and Environmental Digest XII D 13]
PROTECTED ACTIVITY; RECOMMENDATION TO CONSULT WITH THE NRC NOT SHOWN TO IMPLICATE NUCLEAR SAFETY

In Abbasi v. Constellation Energy Group, Inc., ARB No. 06-136, ALJ Nos. 2006-ERA-7 and 11 (ARB June 30, 2008), the Complainant had been tasked with evaluating two interim compensatory measures that might be taken if needed if tests showed that radiation contamination could leak into control rooms. In discussing a draft position paper with a supervisor, the Complainant recommended that the Respondent consult with the NRC on the use of "alternative radiation source term" (AST) calculation and explain the Respondent's position that it is permissible for nuclear plants. The recommendation was rejected because the supervisor believed it was unnecessary to consult with the NRC on the matter and because it was company policy not to use the NRC as a consultant. The Respondent moved for summary judgment on the ground that this was not protected activity. The ARB stated that the Complainant's burden to survive summary judgment was to produce some evidence that he reasonably believed that consulting with the NRC about using AST was in some way necessary to insure safety at Nine Mile Point or that not consulting would violate the ERA, the AEA, or their implementing regulations. The Complainant, however, adduced no such evidence.

[Nuclear and Environmental Digest XII D 13]
PROTECTED ACTIVITY; RECOMMENDATION TO DISCUSS WITH THE NRC A FAILURE TO FOLLOW REGULATORY PROCEDURE FOR SUBMISSION OF LICENSE AMENDMENTS FOUND NOT TO BE PROTECTED ACTIVITY

In Abbasi v. Constellation Energy Group, Inc., ARB No. 06-136, ALJ Nos. 2006-ERA-7 and 11 (ARB June 30, 2008), the Complainant had recommended that the Respondent discuss with the NRC an alleged informal communication of calculations used to support a license amendment five years earlier and the NRC's failure to place the communication in the public docket. The Respondent moved for summary judgment on the ground that this was not protected activity. The ARB affirmed the ALJ's grant of that motion because nothing in the record informed how this recommendation implicated safety. The ARB also affirmed grants of summary decision on two other concerns the Complainant had raised about internal procedures for preparing a report and for submitting changes to a license amendment request where the record failed to reveal how those concerns related to nuclear safety.

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Summary:

[Nuclear and Environmental Digest IX B 2]
DISMISSAL OF APPEAL BASED ON FAILURE TO FILE OPENING BRIEF

In Bowers v. Barlett Nuclear, Inc., ARB No. 08-045, ALJ No. 2006-ERA-12 (ARB June 30, 2008), the ARB dismissed the Complainant's appeal where he had failed to file an opening brief in support of of his petition for review, failed to explain that failure in response to the Board's order to show cause, and where construing the Complainant's petition for review as his opening brief would serve no purpose as it failed to address the grounds for dismissal stated in the ALJ's decision (lack of timeliness of request for hearing).

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Summary:

[STAA Digest V B 1 c i]
PROTECTED ACTIVITY; CALLING OR THREATENING TO CALL THE FMCSA

In Carter v. Marten Transport, Ltd., ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), on the day that the Complainant met with management to discuss his safety concerns with his assigned truck, the Complainant threatened to call, and did then call, the FMCSA and state and local police from the Respondent's employee break room. The ARB held: "When Carter called FMCSA, he engaged in STAA-protected activity because he was filing a complaint or beginning a proceeding related to a violation of a motor vehicle safety regulation, standard, or order. Threatening to file a complaint based on a reasonable belief regarding the existence of a violation is also protected."

[STAA Digest IV A 2 c]
CAUSATION; DIRECT EVIDENCE THAT PROTECTED ACTIVITY WAS A MOTIVATING FACTOR IN DECISION TO DISCHARGE THE COMPLAINANT

In Carter v. Marten Transport, Ltd., ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), the Respondent's Human Resources director explained that she had discharged the Complainant because of, among other reasons, his excessive complaints about his equipment. The ARB found that substantial evidence supported the ALJ's finding that this ground for discharge was direct evidence that protected activity was a motivating factor in the decision to discharge the Complainant. The Respondent argued that the HR director was referring to equipment complaints that had been resolved, but the ARB rejected this argument because the HR director had not made this distinction when testifying.

[STAA Digest IV D 1]
DUAL MOTIVE; RESPONDENT'S BURDEN IS PROVE THAT IT "WOULD" HAVE – NOT "MIGHT" HAVE – DISCHARGED THE COMPLAINANT FOR NONDISCRIMINATORY REASONS

In Carter v. Marten Transport, Ltd., ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), the Respondent articulated four reasons why it would have discharged the Complainant despite his protected activity. The ALJ, however, found that the Respondent had not offered any persuasive evidence that any of those justifications would have led it to actually dismiss the Complainant. The ARB agreed, and wrote: "Marten's burden is to demonstrate by a preponderance of the evidence that it "would have," not "might have," terminated Carter for one of those reasons." USDOL/OALJ Reporter at 13 (footnote omitted).

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; VALUE OF ITEMS NOT RETURNED TO THE COMPLAINANT AND EXPENSES INCURRED FOR TRAVEL HOME AFTER DISCHARGE

In Carter v. Marten Transport, Ltd., ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), the ARB affirmed the ALJ's compensatory damages awards for the value of personal items that the Complainant was unable to carry home when discharged and which were not returned to him, and for the expenses he incurred in traveling home after the discharge.

[STAA Digest IX B 1]
COMPENSATORY DAMAGES; EMOTIONAL DISTRESS AWARD GROUNDED IN COMPLAINANT'S TESTIMONY

In Carter v. Marten Transport, Ltd., ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), the ALJ awarded compensatory damages of $10,000 for emotional distress based on the Complainant's testimony about depression and distress he experienced as the result of his discharge, about having to live off his retirement savings as a result of his discharge, and about his continued unemployment. The ARB acknowledged that the Complainant had turned down a comparable job, but nonetheless affirmed the ALJ's award. The ARB also affirmed the ALJ's reliance on his observation of the Complainant's distress during the hearing. On appeal, the Respondent argued that there was no proof that the distress was related to the discharge. The ARB found, however, that substantial evidence supported the ALJ's finding.

[STAA Digest IX C]
FEE ENHANCEMENT FOR TWO YEAR DELAY IN PAYMENT OF ATTORNEY'S FEES DENIED

In Carter v. Marten Transport, Ltd., ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), the ARB affirmed the ALJ's award of attorney's fees of $275 an hour, totaling $129,766.41 in fees and costs, under the lodestar method (reasonable hours multiplied by reasonable hourly rate). The ARB, however, denied the Complainant's attorney's request for a fee enlargement to compensate for the fact that he had not yet received the attorney's fee that the ALJ awarded over two years earlier, citing Dalton v. Copart, Inc., ARB Nos. 04-027, 04-138, ALJ No. 1999-STA-46 (ARB June 30, 2005). The ARB found that Dalton involved a five-year delay due to protracted litigation, which was not the situation in the present case.

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Summary:

[STAA Digest IV C 2 b]

PRETEXT; COMPLAINANT FAILED TO ESTABLISH THAT THE RESPONDENT DID NOT FIRE HIM FOR INSUBORDINATION RATHER THAN PROTECTED ACTIVITY

In Guay v. Burford's Tree Surgeon's, Inc., ARB No. 06-131, ALJ No. 2005-STA-45 (ARB June 30, 2008), the Respondent's president and owner stated that he fired the Complainant – not because he had reported drug use by other employees – but for insubordination because he had failed to provide the HR manager with a list of the employees he was accusing of using drugs after being told to do so and promising to comply. Because the Complainant presented no evidence to show that the Respondent's president and owner was not being truthful about the reason for the firing, the ARB affirmed the ALJ's finding that the Complainant had failed to establish pretext.

[STAA Digest V A 5]
PROTECTED ACTIVITY; COMPLAINANT'S MOTIVE FOR MAKING THE COMPLAINT IS NOT MATERIAL TO THE ISSUE OF WHETHER THE COMPLAINANT HAD FORMED A REASONABLE BELIEF THAT A SAFETY VIOLATION HAD OCCURRED

In Guay v. Burford's Tree Surgeon's, Inc., ARB No. 06-131, ALJ No. 2005-STA-45 (ARB June 30, 2008), the Complainant had reported drug use by coworkers to a major customer. The ALJ concluded that this was not protected activity because it was done in revenge for disciplinary action. The ARB found that the ALJ erred by taking into account the Complainant's motivation when assessing whether the complaint was based on a reasonable belief that a safety violation had occurred. The ARB reviewed the record and found that the Complainant indeed had a reasonable belief that motor vehicle safety rules were being violated because of drug use by coworkers; the Complainant's motives for making the complaint were not material.

[Editor's note: Because the complaint was dismissed on other grounds, the ALJ did not reach the issue of whether it is protected activity under the STAA to complain to a third party. Because the Respondent had not objected to this approach on appeal, the ARB assumed for purposes of deciding the appeal that the entity to which the Complainant complained was appropriate.]

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Summary:

[STAA Digest V B 1 c i]
PROTECTED ACTIVITY; MERE THREAT TO "GO TO THE DOT" FOUND NOT TO BE PROTECTED ACTIVITY UNDER THE CONTEXT IN WHICH THE THREAT WAS MADE

In Jackson v. Eagle Logistics, Inc., ARB No. 07-005, ALJ No. 2006-STA-3 (ARB June 30, 2008), the Complainant's threat to "go to the DOT" did not rise to the level of "filing a complaint" sufficient to constitute protected activity under the STAA where it was made in the context of telephone call from the Respondent's President who was asking why the Complainant was arriving late for scheduled trips, and the Complainant responded by swearing at the President and threatening contact with the DOT, and where in the month following the threat he never attempted to actually file any type of complaint with the DOT. The President had phoned the Complainant after he had been late three times within the first few weeks of work and had falsified his driver's log.

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Summary:

[Nuclear and Environmental Digest XIII C]
HOSTILE WORK ENVIRONMENT CLAIM FAILS WHERE ALLEGED HARASSMENT WAS FOUND NOT TO BE ADVERSE OR HAD BEEN TAKEN BECAUSE OF LEGITIMATE NON-DISCRIMINATORY REASONS

In Lewis v. United States Environmental Protection Agency, ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB June 30, 2008), the ARB granted reconsideration where the Complainant was able to identify where in the record he had made a hostile work environment claim (the ARB noting that it was in a different document than originally stated). Upon review, however, the ARB found that the hostile work environment claim failed because the Complainant did not prove by a preponderance of the evidence that the Respondent harassed him because of his protected conduct. The ARB observed that the ALJ had found that the Respondent's actions had either not been adverse, or had been taken for legitimate, non-discriminatory reasons.

[Nuclear and Environmental Digest XIII D]
LIABILITY FOR ACTIONS OF EMPLOYEE AVOIDED WHERE RESPONDENT TOOK PROMPT DISCIPLINARY ACTION

In Lewis v. United States Environmental Protection Agency, ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB June 30, 2008), in considering on reconsideration the Complainant's hostile work environment claim, the ARB held that the Respondent was not liable for an employee's dissemination of a paper critical of the Complainant's views on sludge fertilization (which was the basis of the Complainant's protected activity), because the Respondent had taken prompt disciplinary action against that employee upon learning what he had done.

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Summary:

ALJ'S DECISION UNDER THE TEMPORARY LABOR CERTIFICATION REGULATION AT 20 C.F.R. § 655.112 IS NOT SUBJECT TO ARB REVIEW

In Carol Paul, FLC Employer, ARB No. 08-085, ALJ No. 2008-TLC-25 (ARB June 30, 2008), a farm labor contractor petitioned the ARB seeking review of an ALJ's Decision and Order under the temporary agricultural labor or services provision of the Immigration and Nationality Act, 8 U.S.C.A. § 1101(a)(15)(H)(ii)(a) (West 1999); 20 C.F.R. Part 655, Subpart B (2008). Because the applicable regulations provide that the ALJ's decision constitutes the final decision of the Secretary, the ARB issued an Order to Show Cause why the appeal should not be dismissed. The petitioner did not respond, and the ARB dismissed the petition under 20 C.F.R. § 655.112(a).

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Summary:

[STAA Digest II B 2 c iii]
TIMELINESS OF REQUEST FOR HEARING; LIMITATIONS PERIOD FOUND TO HAVE RUN FROM DATE THAT COMPLAINANT RECEIVED OSHA'S FINDINGS RATHER THAN THE DATE THAT COMPLAINANT'S ATTORNEY LEARNED OF THE FINDINGS

In Smith v. CRST International, Inc., ARB No. 06-146, ALJ No. 2006-STA-31 (ARB June 30, 2008), the Complainant did not file his objections to the OSHA findings and request for hearing until nearly two months after he signed a certified mail receipt for those findings, and therefore the appeal to OALJ was not timely. The ARB rejected the Complainant's contention that the limitations period should run from the time that OSHA mailed the findings to his attorney, or that the time period should be equitably tolled until the date the attorney received the findings. The ARB found that the STAA regulations require OSHA to send a copy of its findings by certified mail "to all parties of record; that the Complainant was a party of record; and that the record contained a certified mail card signed by the Complainant. Compliance with the regulations is not a ground for equitable tolling.

[Editor's note: The ARB decision does not state why the attorney was not notified of the findings at the same time as the parties.]

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Summary:

PARTY WHICH DID NOT PARTICIPATE IN A SERVICE CONTRACT ACT SUBSTANTIAL VARIANCE PROCEEDING BEFORE THE ALJ DOES NOT HAVE STANDING TO PETITION FOR ARB REVIEW

In Systems and Resource Technologies, Inc., ARB No. 05-132, ALJ No. 2005-CBV-2 (ARB June 30, 2008), a Service Contract Act case in which the ALJ had found that a substantial variance existed between CBA negotiated wage rates and the local prevailing wage rates, the ARB found that the U.S. Department of Agriculture did not have standing to file a petition for review with the ARB under 29 C.F.R. § 6.57 because it did not participate in the proceedings before the ALJ. The ARB rejected the USDA's argument that it had standing under 29 C.F.R. § 6.7(b), which permits an ALJ to dismiss based on a failure to appear. The USDA argued that it had been denied an opportunity to participate because of "defective notice" of the proceedings and that what happened was akin to a grant of default judgment against it. The ARB, however, found that the ALJ had based his decision on the merits and not on a default judgment. Moreover, the ARB noted that the Secretary of Agriculture had been served with both the Administrator's Order of Reference and the ALJ's Notice of Pre-Hearing Conference and Hearing and Pre-Hearing Order.

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Summary:

INTERLOCUTORY APPEAL; ATTORNEY-CLIENT PRIVILEGE CLAIM

In Jordan v. Sprint Nextel Corp., ARB No. 06-105, ALJ No. 2006-SOX-41 (ARB June 19, 2008), the ALJ certified for interlocutory review the question of whether the Complainant could rely on statements and documents subject to the attorney-client privilege to prosecute his case. The Respondent had filed a motion to dismiss based on the Board's decision in Willy v. The Coastal Corp., ARB No. ARB No. 98-060, ALJ No. 1985-CAA-001 (ARB Feb. 27, 2004). That decision, however, had been called into question because the Fifth Circuit had reversed the ARB decision on privileged information in Willy v. Admin. Review Bd., 423 F.3d 483 (5th Cir. 2005). The ALJ found the Fifth Circuit's decision to be persuasive, but found it appropriate to certify the issue under the collateral appeal exception to the general rule disfavoring interlocutory review. The ARB, although disagreeing with some of the ALJ's analysis, agreed that the collateral appeal criterion for an interlocutory appeal had been meet because of the institutional benefits of allowing interlocutory review of attorney-client privilege claims. The ARB also concurred "in the ALJ's conclusion that once Jordan is allowed to rely on the communications, the issue whether they are subject to the privilege is effectively unreviewable because Sprint will suffer irreparable injury by the publication of the communications regardless whether the Board ultimately reverses the ALJ's decision permitting Jordan to rely on the communications." USDOL/OALJ Reporter at 6 (footnote omitted). The ARB recognized that that a party might be able to obtain relief from an ALJ's discovery order in federal district court, but that found that "given the administrative nature of the proceedings before the Labor Department in whistleblower cases, we believe that it is more appropriate for the Board to consider and dispose of these limited attorney-client discovery issues in the first instance, rather than forcing the parties into district court." Id. at 7. The ARB therefore accepted the petition for interlocutory review and set a briefing schedule for the parties.

MOTION TO PROCEED ANONYMOUSLY USING PSEUDONYMS

In Jordan v. Sprint Nextel Corp., ARB No. 06-105, ALJ No. 2006-SOX-41 (ARB June 19, 2008), the ALJ had certified an attorney-client privilege issue for interlocutory review, which the ARB accepted. One of the issues on appeal was whether the ALJ had properly denied the Respondent's motion for a protective order for the parties to proceed anonymously using pseudonyms. The ARB reviewed the applicable law, and the ALJ's findings, and concluded that the Respondent had failed to demonstrate that the case fell within the exception to the general rule that parties to litigation must identify themselves. The ARB recognized that public interest was a factor in determining whether some form of anonymity is warranted in a judicial proceeding, and that SOX served the public interest of protecting investors and building confidence in U.S. securities markets. Thus, the public interest factor in SOX cases is significant. Moreover, the ARB agreed with the ALJ that the Respondent had not explained how disclosure of the parties' names could result in a violation of the attorney-client privilege. The ARB also found the ALJ's analysis of the factors for determining a motion to proceed anonymously to be well-reasoned and cogent – and in particular that the names of the parties were already a matter of public record on the OALJ web site, and that the Respondent had not made any attempt to protect its identity in the investigatory proceedings before OSHA or when the Complainant initially filed his request for a hearing. The ARB also noted the ALJ's observation that "that the fact that Sprint might be embarrassed by the fact that one of its former attorneys sued it under the SOX does not justify anonymity, given the countervailing factors such as the public interest." USDOL/OALJ Reporter at 11 (footnote omitted).

MOTION TO SEAL THE RECORD BASED ON ATTORNEY-CLIENT PRIVILEGE

In Jordan v. Sprint Nextel Corp., ARB No. 06-105, ALJ No. 2006-SOX-41 (ARB June 19, 2008), the ALJ had certified an attorney-client privilege issue for interlocutory review, which the ARB accepted. The ALJ had denied the Respondent's motion that all pleadings, evidence and orders be sealed and all hearings be closed the public, but temporarily sealed the Respondent's motion for a protective order, the Complainant's original complaint, and the Secretary's findings. On appeal, the Respondent moved the ARB to seal the record of the proceedings before it. The ARB found that the Respondent had failed to address ARB precedent that records in whistleblower cases are subject to FOIA, and that even if it was willing to reconsider that precedent, it agreed with the ALJ's well-reasoned denial of the Respondent's motion. The ALJ applied 10th Circuit precedent to the effect that blanket claims that a record must be sealed based on attorney-client privilege are not acceptable – the party making the assertion bears the burden of proving its applicability to specific questions or documents. The ALJ also found that there had already been numerous disclosures of purportedly privileged information when the case was before OSHA. Moreover, the ALJ found that the Complainant and the Respondent did not only have an attorney-client relationship, but also an employee-employer relationship, and that certain communications would not be privileged. Moreover, the ALJ noted that attorney-client privilege applies only to the substance of the communications and not the facts and circumstances surrounding those communications. The ARB, however, provided leave to the Respondent to identify specific statements or documents to which the privilege allegedly applies. If the Respondent did so, the ARB would consider whether it would appropriate to redact certain portions of the record.

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Summary:

Motion for reconsideration denied where it merely repeated arguments already considered and rejected by the ARB. Newport v. Florida Power & Light Co., ARB No. 06-110, ALJ No. 2005-ERA-24 (ARB June 19, 2008).

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Summary:

Motion for reconsideration denied where it merely rehashed arguments already considered and rejected by the ARB. Montgomery v. Jack In The Box, ARB No. 05-129, ALJ No. 2005-STA-6 (ARB June 13, 2008).

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