CLEAR AND CONVINCING EVIDENCE STANDARD; COMPLAINANT’S INSUBORDINATE ACTION AND UNSATISFACTORY JOB PERFORMANCE

In Jordan v. IESI Blue Ridge Landfill Corp. , ARB No. 13-066, ALJ No. 2009-STA-62 (ARB Oct. 30, 2015), the Complainant, a Safety and Traffic Coordinator, alleged that the Respondent discharged him in violation of the STAA. The ARB found that substantial evidence supported the ALJ’s finding that the Respondent proved by clear and convincing evidence that it would have terminated the Complainant absent protected activity based on the Complainant’s insubordination in continuing to investigate whether a driver had impaired vision and did not have a valid physical card from the driver’s physician, despite being directed not to continue that investigation until the Complainant’s supervisor returned from vacation. Substantial evidence also supported the ALJ’s finding that the supervisor was dissatisfied with the Complainant’s job performance.

[STAA Digest III G]
CREDIBILITY; ARB REJECTS ALJ’S CREDIBILITY DETERMINATIONS WHERE RELEVANT TESTIMONY BY THE COMPLAINANT HAD BEEN CURTAILED, AND WHERE GIVING GREATER WEIGHT TO THE RESPONDENT’S WITNESSES WAS NOT WARRANTED BECAUSE OF MEMORY LAPSES OF ONE WITNESS AND UNRECONCILED INCONSISTENCIES IN THEIR TESTIMONY

In Nevarez v. Werner Enterprises, ARB No. 14-010, 2013-STA-12 (ARB Oct. 30, 2015), the ARB described how it reviews ALJ credibility determinations:

   The ARB accords special weight to an ALJ’s credibility findings that “rest explicitly on the evaluation of the demeanor of witnesses.” The ARB generally defers to an ALJ’s demeanor-based credibility determinations, where supported by substantial evidence of record, unless they are “inherently incredible or patently unreasonable.” Lesser weight is accorded to credibility finding based on other aspects of a witness’s testimony, such as internal discrepancies or witness self-interest. “[C]redibility findings based on internal inconsistency, inherent improbability, important discrepancies, impeachment or witness self-interest are entitled to the weight which ‘in reason and in the light of judicial experience they deserve.’” In any event, “all findings of fact, including those based on credibility, must be supported by substantial evidence.”

USDOL/OALJ Reporter at 7 (footnotes omitted).

In the instant case, the ARB, in a harshly critical portion of the decision, found that the ALJ’s credibility findings were “not entitled to the weight, which ‘in reason and in the light of judicial experience they deserve,’” and that “the ALJ’s evaluation and assessment of the testimony of the parties’ respective witnesses in the Decision and Order currently under review is rejected.” Id. at 14.

The ARB first rejected the ALJ’s determination that, while the Complainant was “truthful in his perceptions,” his testimony had been “’colored by emotions, trucking driving [sic] inexperience, and past interactions with Respondent.’” Id. (quoting ALJ decision). The ARB found that, to the extent the ALJ was referring to the Complainant’s testimony about two incidents, the record contained insufficient information about those incidents to support drawing a negative credibility inference about the Complainant’s testimony. The ARB stated that the ALJ had missed the relevance of that testimony and had curtailed the testimony.

The ARB observed in a footnote that the ALJ had found that the Complainant’s “credibility [wa]s colored by his brashness, his overwhelming sense of rightness, his lack of listening skills, and his demanding demeanor.” The ARB stated that “having emotions or an ‘overwhelming sense of rightness’ are not necessarily personality traits indicative of untrustworthiness or a lack of credibility.” Id. at 16, n.74 (quoting ALJ’s decision).

The ARB also rejected the ALJ’s conclusion that the Complainant’s testimony was “exaggerated,” “unreliable,” and not borne out by the other evidence in the record. The ALJ had given greater weight to the testimony of the Respondent’s witnesses, who the ALJ found had testified credibly. The ARB found that a close review of the record showed that the ALJ’s crediting of the Respondent’s witnesses over the Complainant “ignored evidence of record dictating a different conclusion regarding the weight of the parties’ conflicting testimony.” Id. at 15. The ARB found that one of the Respondent’s witnesses’ lack of memory about certain events, while not establishing lack of credibility, was not testimony that weighed against the Complainant’s version of events. The ARB faulted the ALJ for failing to reconcile conflicting testimony of the Respondent’s witnesses and “instead covering it with a blanket of credibility that in turn was weighed against [the Complainant’s] account of what transpired….” The ARB indicated that the ALJ must resolve these credibility determination errors on remand.

[STAA Digest VI B 1]
ADVERSE ACTION; “CONSTRUCTIVE DISCHARGE” REQUIRES ACTUAL RESIGNATION BY AN EMPLOYEE; INTERPRETATION BY EMPLOYER THAT EMPLOYEE ACTIONS CONSTITUTE A QUIT OR VOLUNTARY RESIGNATION CONSTITUTES A DISCHARGE

In Nevarez v. Werner Enterprises, ARB No. 14-010, 2013-STA-12 (ARB Oct. 30, 2015), the Complainant, a truck driver, filed a complaint alleging that his employer retaliated against him in reprisal for engaging in activity protected under the STAA. The ARB found that the complaint charged retaliation by refusing to pay the Complainant’s lodging and necessary living expenses while awaiting a reassignment, and then terminating his employment, all for refusing to drive a vehicle hauling hazardous material. The ARB rejected the ALJ’s analysis that the Complainant was constructively discharged. The ARB stated that, as a matter of law, a complainant must have “ actually resigned” to constitute a constructive discharge. The ARB, citing Klosterman v. E.J. Davies, Inc., ARB No. 08-035, ALJ No. 2007-STA-19, slip op. at 6 (ARB Sept. 30, 2010), held that where an employer decides to interpret an employee’s actions as a voluntary quit or resignation, that constitutes a decision by the employer to discharge the complainant.

[STAA Digest VI B 2]
REFUSAL TO REIMBURSE LODGING AND LIVING EXPENSES IS AN ADVERSE ACTION WHERE THE EVIDENCE INDICATED THAT SUCH REIMBURSEMENT WAS COMPANY POLICY; LACK OF SUBMISSION BY COMPLAINANT OF CLAIM FOR REIMBURSEMENT FOUND NOT TO BE MATERIAL

In Nevarez v. Werner Enterprises, ARB No. 14-010, 2013-STA-12 (ARB Oct. 30, 2015), the Complainant, a truck driver, filed a complaint alleging that his employer retaliated against him in reprisal for engaging in activity protected under the STAA. The ARB found that the complaint was based on retaliation by refusing to pay the Complainant’s lodging and necessary living expenses while awaiting a reassignment, and terminating his employment, all for refusing to drive a vehicle hauling hazardous material. The ARB found that the ALJ erred by concluding that failure to pay Complainant’s lodging was not a personnel action. The ARB found that the ALJ’s finding was not supported by substantial evidence. The ARB relied on the inconsistency of one of the Respondent’s witnesses between his sworn testimony and sworn statement; the fact that company policy provided for such payment; and the fact that Complainant paid for part of his lodging through EFS check advance. The ARB found immaterial the fact upon which the ALJ had relied -- that the Complainant did not actually submit a claim for reimbursement.

[STAA Digest IV A 1]
CONTRIBUTING FACTOR CAUSATION; PANEL SPLIT IN HOW THE FACTOR MUST BE ANALYZED

In Nevarez v. Werner Enterprises, ARB No. 14-010, 2013-STA-12 (ARB Oct. 30, 2015), the Complainant, a truck driver, filed a complaint alleging that his employer retaliated against him in reprisal for engaging in activity protected under the STAA. The ARB found that the complaint charged retaliation by refusing to pay the Complainant’s lodging and necessary living expenses while awaiting a reassignment, and then terminating his employment, all for refusing to drive a vehicle hauling hazardous material. The ALJ found that the Complainant failed to establish adverse personnel action, and dismissed the complaint. On appeal, the ARB reversed the ALJ’s finding on adverse action, and remanded for the ALJ to address whether the Complainant “can prove by a preponderance of the evidence that the STAA-protected activity in which he engaged was a contributing factor in the adverse personnel action Respondent took against him and, if so, whether [the Respondent] can nevertheless avoid liability by proving, by clear and convincing evidence, that it would have taken the same adverse action in the absence of any protected activity.” The ARB stated that “[i]n considering these issues on remand, the ALJ’s attention is directed to the Board’s analysis of ‘contributing factor’ causation in Fordham v. Fannie Mae, [ ARB No. 12-061, ALJ No. 2010-SOX-51 (ARB Oct. 9, 2014)] as recently reaffirmed and clarified en banc in Powers v. Union Pac. R.R., [ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Apr. 21, 2015)] and the Board’s even more recent analysis in DeFrancesco v. Union R.R. Co. [, ARB No. 13-057, ALJ No. 2009-FRS-9 (ARB Sept. 30, 2015)] of the ‘clear and convincing’ burden of proof requirement imposed upon a respondent to avoid liability.” USDOL/OALJ Reporter at 13. The ARB then detailed several matters that the ALJ must resolve on remand, including errors in determining witness credibility and the relevance of prior incidents, and whether the Respondent failed to produce relevant evidence during discovery.

One member of the Board concurred, stating: “I do not agree with the guidance offered in the majority opinion as to how to analyze “contributing factor” causation …. My reasoning is as explained in Nelson v. Energy Northwest, ARB No. 13-075, ALJ No. 2012-ERA-002, slip op. at 10-12 (ARB Sept. 30, 2015).” Id. at 19.

PROTECTED ACTIVITY; MERE INQUIRIES REGARDING THE SCOPE OF ONE’S BROKERAGE DUTIES UNDER “SAFE” ACT WITHOUT OBJECTIONS TO POLICY OR SHOWING THAT POLICY COULD REASONABLY BE PERCEIVED TO BE A VIOLATION OF “SAFE” ACT IS NOT PROTECTED ACTIVITY UNDER THE CFPA

PROTECTED ACTIVITY; MERE INQUIRIES REGARDING SPLITTING OF FEES OR PAYMENT OF REFERRAL FEES BY EMPLOYEES WITHOUT OBJECTIONS TO POLICY THAT COMPLAINANT REASONABLY BELIEVED TO BE A VIOLATION OF LAW IS NOT PROTECTED ACTIVITY UNDER CFPA

PROTECTED ACTIVITY; MERE INQUIRIES REGARDING APPLICATION OF “DO NOT CALL” REGISTRY WITHOUT REFUSAL TO PARTICIPATE IN VIOLATIVE CONDUCT, OR RAISING CONCERNS ABOUT VIOLATIVE CONDUCT, IS NOT PROTECTED ACTIVITY UNDER THE CFPA

In Childs v. Sente Mortgage, ARB No. 14-043, ALJ No. 2013-CFP-4 (ARB Oct. 29, 2015), the Complainant alleged that his former employer terminated his employment in violation of the Consumer Financial Protection Act (CFPA). The ARB affirmed the ALJ’s finding that the Complainant failed to establish that he engaged in protected activity under the CFPA. The ARB described the CFPA “whistleblower” provision as follows:

   The CFPA provides for employee protection from retaliation because the employee has engaged in protected activity pertaining to the offering or provision of consumer financial products or services. This is a comprehensive act that enumerates eighteen federal consumer financial laws that are to be implemented and enforced by the Consumer Financial Protection Board (CFPB or the Board). In addition, the act protects a covered employee’s activity relating to any provision of law that is subject to the jurisdiction of the Board. To establish a violation under the CFPA, a complainant must demonstrate that his protected activity was a contributing factor in the unfavorable personnel action alleged in the complaint. Relief may not be ordered if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of the alleged contribution of the protected activity.

USDOL/OALJ Reporter at 2-3 (footnotes omitted).

The ALJ first considered the Complainant’s contention that he refused to act as a mortgage banker before his license was activated in violation of the Secure and Fair Enforcement for Mortgage Lending Act (SAFE). The ARB stated that “[t]he ALJ found that [the Complainant] made inquiries regarding his duties but did not allege violations or refuse to participate in any ‘activity, policy, practice or assigned task’ that he reasonably perceived to be a violation of a law subject to the CFPB.” Id. at 3. The ARB found that substantial evidence supported the ALJ’s finding.

Similarly, the ARB found that substantial evidence supported the ALJ’s finding that, although the Complainant may have made inquiries regarding the sharing of commissions and referral fees, there was no evidence that he “objected” to a policy that he reasonably believed to be a violation of the Real Estate Settlement Procedures Act (RESPA), which proscribes the payment of commissions or profit distribution to unlicensed employees.

The Complainant also contended that he reported concerns regarding violations of the Telemarketing and Consumer Fraud and Abuse Prevention Act. The ARB found that substantial evidence supported the ALJ’s finding that, although the Complainant raised questions about the legality of “cold calls,” the Complainant did not establish that he refused to participate in an assigned task that would violate the Do Not Call Registry or related rules or laws. The ARB stated: “Once [the Complainant] began his employment with [the Respondent], [he] asked for information regarding the application of the law, but did not raise concerns about violations of the law.”

Respondent withdrew its appeal. ARB dismisses appeal, noting that the ALJ’s Decision and Order becomes the final decision for the Department of Labor.

PROTECTED ACTIVITY; PROVIDING INFORMATION ABOUT RAIL SAFETY VIOLATION IN STATEMENT AFTER TRACK AUTHORITY INCIDENT, AND IN STATEMENTS DURING RESULTANT DISCIPLINARY HEARING

PROTECTED ACTIVITY; ALJ FOUND NOT TO HAVE EXCEEDED HIS AUTHORITY IN FINDING PROTECTED ACTIVITY BASED ON LEGAL THEORY NOT ARTICULATED BY COMPLAINANT AS LONG AS IT IS SUPPORTED BY THE RECORD AND WAS ADEQUATELY LITIGATED

In Seay v. Norfolk Southern Railway Co. , ARB No. 14-022, 13-034, ALJ No., 2013-FRS-34 (ARB Oct. 27, 2016), the Complainant was one of two employees (the other being his supervisor) in a hi-rail vehicle that drove beyond the applicable track authority (a protocol that ensures that the track section is out of service while it is being inspected). The supervisor was driving. Both employees were disciplined. The Complainant refused to waive an investigatory hearing. After the hearing, but before a determination, the Complainant accepted a waiver (under protest) accepting responsibility for the incident. On appeal, the Respondent contended that the ALJ erred by finding that the Complainant engaged in protected activity. The ARB affirmed the ALJ’s finding because the Complainant had provided information about the incident. The ARB wrote:

   The FRSA protects employees who provide information regarding railroad safety violations. The record indicates that Seay provided information to Norfolk Southern about what he considered to be safety violations [the supervisor] committed on December 8. For example, on the day of the violation, Seay told Erickson that [the supervisor] had “r[u]n outside of his limits and there was nothing [he] could do to prevent it.” And Seay provided details about the track authority violation during the December 22, 2011 hearing, including his assertion that he was not responsible for the violation because of his location in the vehicle during the inspection. We therefore agree with the ALJ that the undisputed facts indicate that Seay provided information to Norfolk Southern about a safety violation.

USDOL/OALJ Reporter at 7 (footnotes omitted). The Respondent also argued that the ALJ overstepped his authority by finding protected activity on a theory not advanced by the Complainant (presumably that the Complainant provided information about safety issues as opposed to merely refusing to waive his right to a hearing). The ARB rejected this argument, finding that the Complainant had said “numerous times” that his ”reported activity included accusing [the supervisor] of violating a safety rule and that his refusal to forego a hearing led him to provide information about safety.” The ARB found that this supported the ALJ’s ruling that the Complainant engaged in protected activity. The ARB cited Funke v. Federal Express Corp., ARB No. 09-004, ALJ No. 2007-SOX-43 (ARB July 8, 2011). (“As long as an issue is adequately litigated below and part of the record, we are not necessarily bound by the legal theory of any party in determining” a question of law.”).

SUMMARY DECISION ON CAUSATION IS DIFFICULT TO ESTABLISH, ESPECIALLY IN “CONTRIBUTORY FACTOR” CAUSTION CASES; WHETHER COMPLAINANT WAS RESPONSIBLE FOR SAFETY INCIDENT IS NOT DETERMINATIVE; EMPLOYER DECLARATIONS ACCOMPANYING SUMMARY DECISION MOION ON HOW DISCIPLINE WAS DETERMINED FOUND NOT TO NULLIFY POSSIBILTY THAT PROTECTED ACTIVITY CONTRIBUTED TO METHODOLOGY USED TO DETERMINE LEVEL OF DISCIPLINE

In Seay v. Norfolk Southern Railway Co. , ARB No. 14-022, 13-034, ALJ No., 2013-FRS-34 (ARB Oct. 27, 2016), the Complainant was one of two employees (the other being his supervisor) in a hi-rail vehicle that drove beyond the applicable track authority (a protocol that ensures that the track section is out of service while it is being inspected). The supervisor was driving. Both employees were disciplined. The Complainant refused to waive an investigatory hearing. After the hearing, but before a determination, the Complainant accepted a waiver (under protest) accepting responsibility for the incident. The ALJ granted summary decision in favor of the Respondent, holding that the undisputed material facts established that the Complainant’s protected activity was not a contributing factor in the unfavorable personnel actions. The ARB reversed and remanded. The ARB noted how the contributing factor element of a FRSA claim is particularly suspect as a matter that can be resolved on summary decision:

   Summary decisions are difficult in “employment discrimination cases, where intent, motivation and credibility are crucial issues.” Summary decision on the issue of causation is even more difficult in cases arising under laws where the complainant need only prove that his protected activity was “a contributory factor” rather than the more demanding causation standards like “motivating factor,” “substantial factor,” or “but for” (determinative factor) causation. Contributory factor means any factor which, alone or in connection with other factors, “tends to affect in any way the outcome of the [employment] decision.” Even where a respondent asserts legitimate, non-discriminatory reasons for its actions, a complainant can create a genuine issue of fact by pointing to specific facts or evidence that, if believed, could (1) discredit the respondent’s reasons or (2) show that the protected activity was also a contributing factor even if the respondent’s reasons are true.

USDOL/OALJ Reporter at 9 (footnotes omitted). Here, the ALJ had held that the undisputed facts established that the Complainant committed the track authority safety violation. The ARB stated, however, that the Complainant’s FRSA claim did not hinge on whether he was responsible for the incident; rather, the question was whether any of the Complainant’s protected activities after the incident contributed to the alleged unfavorable personnel action. Although the Respondent offered declarations from its supervisors explaining how the level of discipline was determined, the ARB stated that at the summary decision stage, their assertions did not negate the possibility that the Complainant’s protected activity contributed to the methodology used to determine the level of discipline. The ARB stated that “[i]n a motion for summary decision, an employer cannot nullify the complainant’s evidence of contributory factor by simply presenting a different independent and lawful reason for the unfavorable employment action.” Id. at 10. Thus, the ALJ erred when he concluded, in deciding the Respondent’s motion for summary decision, that the “Respondent’s change in the level of discipline offered Seay was justified and consistent with established Norfolk Southern policy and procedures.” Id.

Approval of settlement agreement.

A respondent appealed an interlocutory ruling by the ARB to the Fifth Circuit. The parties requested that the Fifth Circuit remand to the OALJ because of a settlement agreement. The Fifth Circuit dismissed the appeal and remanded to the ARB. The ARB then remanded to the ALJ for approval of the settlement agreement.