October 4, 2008 DOL Home > OALJ Home > Whistleblower Collection |
Thomas M. Burke
NOTICE: This newsletter was created solely to assist the staff of the Office of Administrative Law Judges in keeping up-to-date on whistleblower law. This newsletter in no way constitutes the official opinion of the Office of Administrative Law Judges or the Department of Labor on any subject. The newsletter should, under no circumstances, substitute for a party's own research into the statutory, regulatory, and case law authorities on any subject referred to therein. It is intended simply as a research tool, and is not intended as final legal authority and should not be cited or relied upon as such.
FOR THE 21ST CENTURY ["AIR 21"] WHISTLEBLOWER DECISIONS return to top {x} ARB REVIEW; DELEGATION UNDER SECRETARY'S ORDER 2-96, ¶ 4.c.(39) In Bodine v. International Total Services, 2001-AIR-4 (ALJ Nov. 29, 2001), the ALJ concluded that under Secretary's Order 2-96, ¶ 4.c.(39), 61 Fed. Reg. 19978 (1996), the Administrative Review Board has review authority delegated from the Secretary of Labor for laws, such as AIR21, which by statute provide for final decisions by the Secretary of Labor upon review of recommended decisions issued by ALJs. Noting that regulations had not yet been promulgated by the Department of Labor to implement the AIR21 whistleblower provision, the ALJ forwarded the administrative file to the ARB for review. Editor's Note: Since implementing regulations are not yet published, parties may be well advised to file protective appeals rather than assume that the ARB will automatically review AIR21 ALJ decisions. BANKRUPTCY; AUTOMATIC STAY; AIR21 WHISTLEBLOWER CASES EXEMPT In Bodine v. International Total Services, 2001-AIR-4 (ALJ Nov. 20, 2001), the ALJ recommended a finding that the automatic stay provision the Bankruptcy Act, 11 U.S.C. § 362(a)(1), was not applicable to an AIR21 whistleblower proceeding pursuant to the exemption at Subsection 362(b)(4). Subsection 362(b)(4) provides that a bankruptcy petition does not act as a stay "under subsection (a)(1) of this section, of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power." The ALJ found:
REQUEST FOR HEARING; TIMELINESS OF In Bodine v. International Total Services, 2001-AIR-4 (ALJ Nov. 20, 2001), the ALJ recommended dismissal of the appeal as untimely where Respondent failed to submit objections to OSHA's Findings and Preliminary Order until over 35 days after OSHA's findings were served by certified mail. The AIR21 statute provides:
49 U.S.C. § 42121(B)(2)(a). If a party fails to request a hearing within the 30 day period, the preliminary order is deemed a final order that is not subject to judicial review. Id. In calculating the period for requesting review, the ALJ applied 29 C.F.R. § 18.43(c)(3) to add five days to the statutory filing period to account for mailing. The ALJ also provided Respondent the opportunity to state a ground for equitable tolling of the filing period, but it failed to respond. SUBPOENA POWER OF ALJ; CONFLICT BETWEEN CHILDERS DECISION AND POLICY DIRECTIVE OF ACTING SOLICITOR OF LABOR In Peck v. Island Express, 2001-AIR-3 (ALJ Aug. 20, 2001), the ALJ was faced with a motion to quash a subpoena issued by the Chief Administrative Law Judge. In ruling on the motion to quash, the ALJ noted that the subject of administrative subpoenas had recently engendered a legal debate within DOL. The latest ruling from the ARB on the subject was made in Childers v. Carolina Power & Light. Co., ARB No. 98-077, ALJ No. 1997-ERA-32 (ARB Dec. 29, 2000), in which ARB rejected the requirement for "express authorization" by Congress for ALJ subpoena power, reasoning that such power was inherent given that the whistleblower provision of the ERA required DOL to issue an adjudicative order on the record. The ALJ observed that in a July 2001 directive, the Acting Solicitor for DOL concluded that the reasoning of the ARB in Childers was "erroneous" and dictum which is "legally indefensible." According to the Acting Solicitor's directive, the agency should resist complying with subpoenas not specifically authorized by statute in whistleblower cases. The ALJ, however, concluded that, considering the ARB would review his rulings and not the Solicitor, he was bound to apply the Childers ruling on subpoena authority. Moreover, the ALJ stated that he agreed with the legal analysis of the ARB in Childers in regard to subpoena power where the agency is required to conduct formal hearings. See also BNA, Daily Labor Report No. 157, Wednesday, August 15, 2001, "Labor Solicitor Rejects Subpoena Use By ALJs in Certain Whistleblower Cases." SUBPOENA; MOTION TO QUASH; COMPLAINANT'S NEED FOR TESTIMONY OF FAA SAFETY INSPECTOR In Peck v. Island Express, 2001-AIR-3 (ALJ Aug. 20, 2001), Complainant subpoenaed an FAA aviation safety inspector. FAA regulations do not permit its employees to testify in proceedings involving private litigants unless the request for testimony or documents is submitted in accordance with 49 C.F.R. Part 9. Under this provision, the request for testimony and documents is sent to the FAA General Counsel who determines whether the FAA will produce the requested documents and permit the requested individual to testify. In Peck, the FAA filed a motion to quash because Complainant's subpoena did not comply with the FAA regulations. In denying the motion to quash, the ALJ initially determined that subpoenas are available to litigants in AIR21 cases. (see casenote above). Turning to the Complainant's need to depose the FAA employee, the ALJ found that the employee's testimony would be necessary because she was the Complainant's contact at the FAA, and her testimony would go directly to the issue of whether Respondent was aware of Complainant's protected activity. The ALJ also determined that the employee's testimony would assist him in determining whether Complainant's discrimination complaint was frivolous or brought in bad faith The ALJ found that the subpoena was reasonably specific and not unreasonably burdensome. Finally, the ALJ commented that for the FAA to refuse to provide witnesses, and documents essential to whistleblowers' efforts to prove their employment discrimination complaints would be contrary to the purposes of AIR21.
NUCLEAR AND ENVIRONMENTAL WHISTLEBLOWER DECISIONS return to top {x}
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[Nuclear and Environmental Whistleblower Digest III B 2]
Under the environmental statutes, the time for filing a complaint begins to run from the date of the adverse action, not the date the employee engaged in the protected activity. Erickson v. U.S. Environmental Protection Agency, ARB No. 99-095, ALJ No. 1999-CAA-2 (ARB July 31, 2001) (citing 29 C.F.R. § 24.3(b)). In Erickson, the ALJ had granted summary decision to Respondent on the ground that the complaint -- filed after Complainant had been denied a promotion -- was untimely as more than three years had elapsed since the alleged whistleblowing activity. The ARB reversed the grant of summary decision, holding: "[W]hile the passage of time between protected activity and adverse action plainly mitigates against the likelihood of retaliation, temporal proximity (or lack thereof) does not by itself determine whether an adverse action was retaliatory." Slip op. at 5 (citation omitted).
[Nuclear and Environmental Whistleblower Digest III C 1]
In Ilgenfritz v. U.S. Coast Guard Academy, ARB No. 99-066, ALJ No. 1999-WPC-3 (ARB Aug. 28, 2001), Complainant alleged that a series of actions taken by Respondent over a 2 year period constituted hostile acts of a continuing nature so as to provide an equitable exception to the 30-day time limit for filing a complaint under the whistleblower provisions of the CERCLA and the SWDA. The ARB concurred with the ALJ's statement that claims alleging illegal conduct that occurred more than 30 days prior to the filing of a complaint are time-barred unless either (a) equitable tolling is appropriate or (b) the Respondent's actions constitute a continuing pattern of retaliatory conduct that is apparent only with the passage of time. The Board agreed with the ALJ that none of the grounds for equitable tolling applied to the instance case. The ARB found that Complainant's complaint faired no better under the continuing violation doctrine where there was no prolonged employer decision-making process that made it difficult for Complainant to determine the actual dates of the allegedly discriminatory acts, and there was no evidence of an underlying policy or pattern of discrimination. Rather, the Board found that the acts of which Complainant complained were discrete and varied in kind, were implemented by several different supervisors, and were mostly distant in time from the complaint filed following his termination.
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[Nuclear and Environmental Whistleblower Digest VII C 1]
Where a movant submits evidence outside the pleadings to support a motion to dismiss, the motion must be viewed as a motion for summary decision under 29 C.F.R. § 18.40. Erickson v. U.S. Environmental Protection Agency, ARB No. 99-095, ALJ No. 1999-CAA-2 (ARB July 31, 2001).
[Nuclear and Environmental Whistleblower Digest VII D 6]
In Ilgenfritz v. U.S. Coast Guard Academy, ARB No. 99-066, ALJ No. 1999-WPC-3 (ARB Aug. 28, 2001), Complainant asserted that the ALJ erred because the ALJ did not give the parties an opportunity to file post-hearing briefs. Complainant's argument was based on the theory that the APA requires that parties be afforded an opportunity to file proposed findings and conclusions with the ALJ. The ARB found that the APA requires that parties to administrative proceedings must be given an opportunity to argue their positions, but provides agencies with flexibility to determine when this will occur during the proceeding. See 5 U.S.C.A. §557(c). The ARB ruled that parties may be given an opportunity to file proposed findings and conclusions before a recommended decision is issued, but that alternatively, after a recommended decision is issued by a subordinate decision maker, the agency can provide the parties with an opportunity to file exceptions to the recommended decision. The ARB held that DOL has clearly taken this second course by creating the Board and allowing parties to petition the Board to review any recommended decision issued by an ALJ under the whistleblower protection provisions of the environmental acts. The ARB also noted that "To the extent that Ilgenfritz expected to file a post-hearing brief with the ALJ, or asserts that he was entitled to file a post-hearing brief 'as a matter of right,' his expectation was unwarranted. The Department's procedural regulations governing whistleblower complaints state, in pertinent part, 'Post-hearing briefs will not be permitted except at the request of the administrative law judge.' 29 C.F.R. §24.6 (e)(3)." Slip op. at 5 n.4.
[Nuclear and Environmental Whistleblower Digest VII E]
In Erickson v. U.S. Environmental Protection Agency, ARB No. 99-095, ALJ No. 1999-CAA-2 (ARB July 31, 2001), the ARB held that "[a]t a minimum, ... when a new argument is raised in a reply brief, the other party must be given an adequate opportunity to respond in some manner (e.g., by ordering an additional round of briefing)." Slip op. at 7 (citation omitted).
ALJ, Secretary and federal courts return to top {x}
[Nuclear and Environmental Whistleblower Digest VIII B 2 d]
The ARB reviews an ALJ's grant of summary decision de novo. The Board "will affirm the ALJ's recommendation that summary decision be awarded if, upon review of the evidence in the light most favorable to the non-moving party, [the Board] determines that there exists no genuine issue as to any material fact and that the ALJ correctly applied the relevant law." Erickson v. U.S. Environmental Protection Agency, ARB No. 99-095, ALJ No. 1999-CAA-2, slip op. at 5 (ARB July 31, 2001) (citations omitted).
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[Nuclear and Environmental Whistleblower Digest XI A]
In Nickerson v. Plains Dairy Products, 2001-CAA-10 (ALJ July 17, 2001), Complainant was directed in a pre-hearing order to file a detailed complaint alleging how the matter fell within the CAA, his activities that he considered protected activity, and the specific discrimination alleged against the Respondent. Complainant never filed a complaint, but later did file an answer to Respondent's motion for summary judgment/motion to dismiss for failure to state a claim for which the court could grant relief. Complainant's answer, however, did not identify any specific violations. The ALJ, citing caselaw to the effect that although a pro se litigant is held to less stringent pleading requirements, must nonetheless meet minimal pleading requirements, and, in a whistleblower case, must set forth a prima facie of case retaliation, recommended that the case be dismissed.
[Nuclear and Environmental Whistleblower Digest XI A 2 ii]
In Tracanna v. Arctic Slope Inspection Service, ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001), Complainant whose history as a whistleblower was well known and who had issued several non-conforming reports (which he characterized as "imminent threats) while providing electrical systems inspection services on the Trans Alaska Pipeline System, requested reassignment after Alyeska changed the standards to be used to conduct inspections. Complainant was placed on inactive status, eligible for reassignment. The ALJ found that the closeness in time between Complainant's protected activity and the layoff was compelling evidence of causation. The ARB disagreed:
Slip op. at 7-8 (footnote omitted).
[Nuclear and Environmental Whistleblower Digest XI A 2 d]
In Tracanna v. Arctic Slope Inspection Service, ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001), Complainant presented testimony to the effect that Complainant's immediate supervisor had boasted that he was the only one with enough guts to get rid of Complainant. The ARB questioned whether there was credible proof that the statement was made, but even assuming it was made, declined to ascribe significance to it, noting that it was made after Complainant had been laid off, and that the supervisor had pressed his supervisors to offer Complainant another position. Moreover, the ARB concluded that other supervisors, and not Complainant's immediate supervisor, were responsible for placing Complainant on layoff, and for making decisions about offering Complainant other positions. Thus, even if the remark had been made "it would not be legally significant in connection with [Complainant's] layoff and subsequent job offers, which were determined by higher-level ASIS personnel." Slip op. at 12 (citation omitted).
B. Articulation of nondiscriminatory reason for adverse action return to top {x}
[Nuclear and Environmental Whistleblower Digest XI B 2 b iv]
In a dual motive case, the ALJ found in Smalls v. South Carolina Electric & Gas, 2000-ERA-27 (ALJ July 11, 2001), there was evidence that, in addition to discriminatory motive, Complainant was given an unsatisfactory performance evaluation in part based on the need to improve his interpersonal and communication skills. The ALJ found that although Complainant was abrasive and confrontational and frequently accused other of lying, he had not been shown to have used obscene language, trespassed, made threats, or exhibited other erratic behavior, and that the accusation of lying were intrinsically connected to his whistleblowing activity -- his belief that others were lying and conducting a cover-up. Noting that there is a balancing test employed when determining whether a complainant's behavior was so egregious so as to fall outside statutory protection, the ALJ found that the permissible and non-permissible motives for Complainant's discharge in the instant case could not be separated -- and thus Employer had not shown by clear and convincing evidence that it would have given Complainant a less-than-satisfactory performance rating in the absence of his protected activity.
[Nuclear and Environmental Whistleblower Digest XI B 2 c]
In Ilgenfritz v. U.S. Coast Guard Academy, ARB No. 99-066, ALJ No. 1999-WPC-3 (ARB Aug. 28, 2001), Complainant was terminated from employment after he had been unable to perform his job for over a year, and it appeared unlikely that he would ever return to work. Respondent presented testimony from a personnel officer that after an employee is still incapacitated after having been in a leave without pay status for over one year, then it is appropriate to initiate a removal action. Respondent also presented credible testimony that the decision to initiate the removal process was based on the Chief of Public Works' recommendation, and that the Chief made that recommendation based solely on the desire to fill the position with a permanent employee and that it had nothing to do with Complainant's protected activities. On this basis, the ARB found that Complainant's termination was not the result of unlawful discrimination. return to top {x}
[Nuclear and Environmental Whistleblower Digest XIII A]
A negative performance evaluation, absent tangible job consequences, is not an adverse action. Ilgenfritz v. U.S. Coast Guard Academy, ARB No. 99-066, ALJ No. 1999-WPC-3 (ARB Aug. 28, 2001).
[Nuclear and Environmental Whistleblower Digest XIII B 6]
In Tracanna v. Arctic Slope Inspection Service, ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001), Complainant, whose history as a whistleblower was well known and who had issued several non-conforming reports (which he characterized as "imminent threats) while providing electrical systems inspection services on the Trans Alaska Pipeline System, requested reassignment after Alyeska changed the standards to be used to conduct inspections. Complainant explained that he had philosophical differences with the action taken to change the standards, and he could not ignore the safety problems he and other inspectors had reported. Complainant was placed on inactive status, eligible for reassignment. Following a hearing, the ALJ found that Complainant's request to be removed from this assignment was a constructive discharge. The ARB disagreed:
Slip op. at 6-7 (footnotes and one citation omitted).
[Nuclear and Environmental Whistleblower Digest XIII B 6]
In Tracanna v. Arctic Slope Inspection Service, ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001), Complainant was laid off when he asked to be removed from his position. Within a matter of days after his layoff, Respondent offered him two positions, both of which he rejected. Other offers followed; however Complainant rejected all but a few temporary positions because the assignments offered to him did not meet his specifications. The ARB found that under these circumstances, Complainant's subsequent resignation was not a constructive discharge. The ARB wrote:
[Nuclear and Environmental Whistleblower Digest XIII B 8]
Where an electronic systems inspector was laid-off for reasons that the ARB found were non-discriminatory, when Complainant sought reassignment he stood in no different position than any other inspector who had completed a project and was awaiting reassignment. Tracanna v. Arctic Slope Inspection Service, ARB No. 98-168, ALJ No. 1997-WPC-1 (ARB July 31, 2001). Thus, Complainant "had the burden of proving both: 1) that he applied for a position that was available; and 2) that he was rejected in circumstances that raise the inference that the rejection was motivated by retaliatory animus." Slip op. at 13 (citations omitted). The ALJ had found that a large amount of inspector work was available and credited the testimony of Complainant's witnesses to that effect. The ARB, however, credited Respondent's witnesses who testified to the effect that no electrical inspector positions had been available that were not offered to Complainant. Moreover, the ARB found that Complainant had placed a number of conditions on his re-employment, and had failed to present any credible evidence that such a position existed. Therefore, Respondent's failure to place Complainant in a permanent position that met Complainant's requirements following his layoff was not retaliatory adverse action.
[Nuclear and Environmental Whistleblower Digest XIII C]
In Moore v. U.S. Dept. of Energy, ARB No. 99-094, ALJ No. 1999-CAA-14 (ARB July 31, 2001), Complainant alleged that during OSHA's investigation of an earlier complaint, Respondent made certain statements against him and engaged in improper ex parte contacts with the OSHA investigator, which Complainant viewed as retaliatory. The ALJ granted summary decision based on the conclusion that Complainant failed to allege an adverse action. On review, Complainant argued that in a hostile working environment case, he is not required to show a tangible job detriment. The ARB agreed with this proposition, but nevertheless found that summary decision was properly granted because Complainant had not alleged or offered facts to support a hostile work environment case under the five factor test stated in Berkman v. U.S. Coast Guard Academy, ARB No. 98-056, ALJ No. 1997-CAA-2 (ARB Feb. 29, 2000). In a footnote, the ARB rejected Complainant's argument that the ALJ erred in denying him discovery, finding that Complainant had not explained how any amount of discovery could produce evidence that Respondent's conduct during the investigation of the first complaint could amount to pervasive and regular discrimination (which one of the elements of the Berkman test).
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[Nuclear and Environmental Whistleblower Digest XVIII A 1]
Where Complainant filed a notice of dismissal, with prejudice, while the case was pending before the ARB, the ARB used Fed. R. App. P. 42(b) to construe Complainant's notice as a motion for voluntary dismissal, granted the motion, and dismissed the complaint. Doody v. Centerior Energy, ARB No. 00-051, ALJ No. 1997-ERA-43 (ARB July 26, 2001).
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[Nuclear and Environmental Whistleblower Digest XXI B]
In Erickson v. U.S. Environmental Protection Agency, ARB No. 99-095, ALJ No. 1999-CAA-2 (ARB July 31, 2001), the ARB remanded the case to the ALJ finding that the ALJ had improperly granted summary decision to Respondent on timeliness issues. Respondent had also raised the assertion that Complainant was precluded from litigating her claim before DOL because she had previously litigated the same issues in other forums. The ALJ had not addressed this issue. The ARB directed on remand that the ALJ address this as a factual issue and consider the facts under the standards in Sedlack v. Braswell Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir. 1998).
SURFACE TRANSPORTATION ASSISTANCE ACT WHISTLEBLOWER DECISIONS return to top {x}
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[STAA Whistleblower Digest II B 2 d ii]
In Tavares v. Swift Transportation Co., Inc., ARB No. 01-036, ALJ No. 2001-STA-13 (ARB Oct. 2, 2001), Complainant filed his complaint over nine months after the most recent OSHA determination in a series of three complaints. The OSHA determination letters all provided a notice of the right to request a hearing within 30 days. Complainant argued that the time limit for filing a complaint should be excused because he was not properly served with the determination letters and because as a professional truck driver he is often away from home, as long as one and one-half months. Complainant, however, provided no proof of improper service. Moreover, the ARB found no error in the ALJ's conclusion that even if Complainant's occupation as a professional truck driver prevented him from filing his complaint in a timely fashion, it does not excuse his failure to file his written objections until nearly ten months after he received his most recent notice of findings from the Secretary.
[STAA Whistleblower Digest II H 4 a]
In Dalton v. Copart, Inc., ARB No. 01-020, ALJ No. 1999-STA-46 (ARB July 19, 2001), the ALJ found that Complainant had refused to drive his truck because he had a reasonable apprehension that to do so would cause serious injury to himself or to the public. Upon review, the ARB reversed, largely based on a very different view of the facts, despite the substantial evidence level of review of the ALJ's factual findings in a STAA case. Applying a reasonable person standard to the STAA work refusal based on a reasonable apprehension of accident, injury or serious impairment to health provision at section 31105(a)(2), the ARB found that substantial evidence did not support the ALJ's findings of fact. In this regard, the Board stated:
Slip op. at 7-8 (footnote omitted). Essentially, the ARB found that Complainant's fears were either uninformed or not credible.
[STAA Whistleblower Digest II H 4 b]
In Moore v. U.S. Dept. of Energy, ARB No. 99-094, ALJ No. 1999-CAA-14 (ARB July 31, 2001), the ARB held that a determination that a complainant has failed to state a claim upon which relief can be granted is a legal conclusion. The Board then noted that under the STAA the ARB reviews an ALJ's legal conclusions de novo.
[STAA Whistleblower Digest II H 4 c]
Exhibits submitted with a brief to the Board which were not part of the record developed before the ALJ are not considered by the ARB because the Board's decision is "based on the record and the decision and order of the administrative law judge." 29 C.F.R. § 1978.109(c). Stauffer v. Wal-Mart Stores, Inc., ARB No. 00-062, ALJ No. 1999-STA-21 (ARB July 31, 2001).
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[STAA Whistleblower Digest III G]
In Stauffer v. Wal-Mart Stores, Inc., ARB No. 00-062, ALJ No. 1999-STA-21 (ARB July 31, 2001), the ARB made reference to 29 C.F.R. §18.702 (2000), in explaining when expert testimony is admissible. Under that rule expert testimony is admissible where "scientific, technical, or other specialized knowledge will assist the judge as trier of fact to understand the evidence or to determine a fact in issue" and "a witness [is] qualified as an expert by knowledge, skill, experience, training or education." The Board cited Daubert v. Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993), for what a trial judge must access when faced with a proffer of expert scientific testimony. The Board quoted the following from Daubert:
Daubert, 509 U.S. at 592-93.
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[STAA Whistleblower Digest IV D 1]
"[W]here a fact finder affirmatively concludes that an adverse action is not motivated in any way by an unlawful motive, it is appropriate to find simply that the complainant has not proven his claim of discrimination and it is not unnecessary to rely on a 'dual motive' analysis." Mitchell v. Link Trucking, Inc., ARB 01-059, ALJ No. 2000-STA-39 (ARB Sept. 28, 2001).
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[STAA Whistleblower Digest V A 3 and 4]
In Forrest v. Transwood Logistics, Inc., 2001-STA-43 (ALJ Aug. 7, 2001), the ALJ found that, although the truck Complainant was driving did not have a New York Highway Use Tax sticker, the absence of such a sticker was not a safety matter as alleged by Complainant, but rather related to a tax and not safety. Therefore this issue did not support a whistleblower complaint under section 31105(a)(1)(B)(i). The ALJ also found that no reasonable person could conclude that absence of a HUT sticker established a real danger of accident, injury or serious impairment to health, and therefore a whistleblower complaint under section 31105(a)(1)(B)(ii) was not supported.
[STAA Whistleblower Digest V B 2 a iv]
In Stauffer v. Wal-Mart Stores, Inc., ARB No. 00-062, ALJ No. 1999-STA-21 (ARB July 31, 2001), the record was replete with evidence and argument about the issue of the human body's daily cycle ("circadian rhythm") and its relationship to a driver's ability to be alert and drive safely. Complainant argued that Respondent's "Custom Night Receiving System" which sometimes required drivers to be awakened from their sleep to perform brief tasks, such as shuttling trailers, is illegal as implemented because it contributes to driver fatigue. The ARB recognized the importance of the issue of driver fatigue, but held that
Slip op. at 7-8 (citation omitted). In Complainant's case, the record failed to establish a case under either the "actual or anticipated fatigue causing impairment" analysis (§ 31105(a)(1)(B)(i)) or "reasonable apprehension of serious injury related to fatigue" analysis (§ 31105(a)(1)(B)(ii)). The ALJ had found Complainant's testimony less than credible because it was argumentative, contradictory and unclear -- and the ARB declined to disturb the ALJ's credibility finding. The ARB also noted that Complainant's claim of impairment due to fatigue was undercut by the fact that he parked the trailer and then drove five miles to another store to spend the night after refusing the assignment to shuttle trailers. Moreover, the ARB found the testimony of Complainant's expert in sleep disorders not to be persuasive because he had not examined or even met Complainant prior to the hearing, because it was equivocal, and because he did not clearly identify the reasoning or methodology underlying his conclusions. Finally, the ARB observed in regard to the reasonable apprehensive issue that neither Complainant nor other drivers who testified could point to any specific instances of fatigue causing a serious injury while shuttling vehicles while working for Respondent.
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[STAA Whistleblower Digest VII A 2 d]
In Moore v. U.S. Dept. of Energy, ARB No. 99-094, ALJ No. 1999-CAA-14 (ARB July 31, 2001), the Board re-affirmed its holding in Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy, ARB No. 99-022, ALJ No. 1998-CAA-10 (ARB Oct. 31, 2000), to the effect that the STAA definitions of "employee" and "employer" constitute an express invocation of sovereign immunity.
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[STAA Whistleblower Digest X E]
Where the Assistant Secretary is the prosecuting party in a STAA whistleblower case, any settlement agreement between Complainant and Respondent must be shown to have been consented to by the Assistant Secretary prior to approval by the ARB or the ALJ. See Ass't Sec'y & Filer v. Arch Aluminum & Glass, Inc., ARB No. 01-053, ALJ No. 1999-STA-12 (ARB Aug. 29, 2001). |
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