USDOL/OALJ: Federal Court Whistleblower Decisions 2016

Federal Court Whistleblower Decisions - 2016

Affordable Care Act
Aviation Investment and Reform Act
Clean Air Act
Consumer Financial Protection Act
Energy Reorganization Act
Fair Labor Standards Act
Federal Railroad Safety Act
Federal Water Pollution Control Act
National Transit Systems Security Act
Sarbanes-Oxley Act
Surface Transportation Assistance Act

Affordable Care Act

Bedminster v. Gurlea, No. 15-1 (D. V.I. Mar. 18, 2016) (2016 U.S. Dist. LEXIS 35088; 2016 WL 1089247)
Memorandum Opinion
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Summary:
PROTECTED ACTIVITY; REFERENCE TO "THIS TITLE" IN SECTION 218c OF PPACA REFERS TO TITLE I OF PPACA, AND NOT TO TITLE 29 OF THE US CODE; MERE ALLEGATION OF FILING OF GRIEVANCES IS NOT SUFFICIENT TO WITHSTAND FRCP 12(b)(6) MOTION TO DISMISS AS IT DOES NOT ALLEGE FACTS SHOWING EXERCISE OF RIGHTS UNDER PPACA; LEAVE TO AMEND COMPLAINT
In Bedminster v. Gurlea, No. 15-1 (D. V.I. Mar. 18, 2016) (2016 U.S. Dist. LEXIS 35088; 2016 WL 1089247), the Plaintiff was the union representative for Heavy Materials LLC, the named business-Defendant. The Plaintiff alleged that Heavy Materials retaliated against him for filing grievances in violation of several laws, including the Fair Labor Standards Act, 29 U.S.C. Â§ 215, and the Patient Protection and Affordable Care Act, 29 U.S.C. Â§ 218c. The court granted the Defendants motion to dismiss under FRCP 12(b)(6) for failure to state a claim upon which relief can be granted. In regard to the Â§ 215 claim, the court found that the Plaintiff failed to decribe the subject matter of the grievances thereby preventing the court from determining whether they related to the subject matter of the Fair Labor Standards Act. In regard to the Â§ 218c claim, the Defendant argued that the Plaintiff failed to plead facts showing that his actions were in any way related to a violation of PPACA, and that Â§ 218c’s reference to “this title” is a reference to Title I of the PPACA, not Title 29 of the United States Code. The court determined that it agreed with other courts that had held that the reference was to Title I of PPACA and not Title 29 of the USC, and that it was implausible Congress intended in PPACA to include an anti-relaliation provision covering the FLSA and other labor laws, as opposed to protecting persons exercising their rights under Title I of PPACA. The court found that the complaint did not allege any facts indicating that the Plaintiff was retaliated against for engaging in actions related to rights created under the PPACA. The Plaintiff was granted leave to amend his complaint.

Aviation Investment and Reform Act

Watson v. Air Methods Corp., No. 15-1900 (8th Cir. Aug. 24, 2016) (per curiam) (2016 U.S. App. LEXIS 15546; 2016 WL 4446106)
Opinion affirming district court
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Summary:
Preemption of state claim by ADA and AIR21. Petition for rehearing filed.
Mawhinney v. American Airlines, No. 15-cv-259 (S.D. Cal. Aug. 23, 2016) (2016 U.S. Dist. LEXIS 123386) (case below ARB No. 14-060, ALJ No. 2012-AIR-17)
Order Denying Motion to Enforce Judgment or, in the Alternative, Compel Arbitration
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Summary:
In January 2016, the ARB reversed the ALJâ€™s dismissal of Mawhinney's AIR21 complaint, finding that the ALJ did not have authority to dismiss merely based on the partiesâ€™ initiation of arbitration proceedings under an earlier settlement agreement. The ARB remanded the case to the ALJ for further proceedings. American filed a motion to enforce judgment in the Southern District of California "because the claims in the ALJ Action were already adjudicated in arbitration, and this Court confirmed the arbitration award, Mawhinneyâ€™s claims in the ALJ Action are barred by res judicata and collateral estoppel. Accordingly, American urges the Court to enjoin the ALJ Action from proceeding pursuant to the All Writs Act, or, alternatively, to compel the parties to arbitrate the claims in the ALJ Action." The court denied the motion.
Cont’l Airlines, Inc. v. Admin. Review Bd., USDOL, No. 15-60012 (5th Cir. Jan. 7, 2016) (unpublished) (2016 U.S. App. LEXIS 324; 2016 WL 97461)(case below ARB No. 10-026, ALJ No. 2008-AIR-00009)
Opinion
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Summary:
PROTECTED ACTIVITY; REPORT OF TURBULENCE ON PREVIOUS FLIGHT NOT LOGGED BY PREVIOUS PILOT; CHALLENGE OF REFUSAL TO CONDUCT INSPECTION
In Cont’l Airlines, Inc. v. Admin. Review Bd., USDOL, No. 15-60012 (5th Cir. Jan. 7, 2016) (unpublished) (2016 U.S. App. LEXIS 324; 2016 WL 97461)(case below ARB No. 10-026, ALJ No. 2008-AIR-00009), the Fifth Circuit found that substantial evidence supported the ARB’s decision that “Continental [the Petitioner] retaliated against Luder [the AIR21 Complainant] when it suspended him for logging turbulence on an earlier flight reported to him by a member of the previous flight crew and triggering an inspection which resulted in a delayed flight.” Slip op. at 1-2.
The court noted: “To establish protected conduct, the employee must show that he reported a violation of federal safety law. Specifically, activity is protected ’because the employee providedâ€¦information relating to any violation or alleged violation of any order, regulation, or standard of the [FAA].’ Moreover, the employee’s belief that a violation of federal law occurred must be reasonable.” Slip op. at 5 (footnotes omitted).
The court found that substantial evidence supported the ARB finding that Luder reported an alleged violation of federal law. Because he believed that the airplane went through severe turbulence, Luder’s actions implicated federal regulations in two ways. First, by logging the turbulence, he effectively reported a violation by the previous pilot for failing to log his encounter with severe turbulence. Second, by challenging Continental’s refusal to conduct the inspection and refusing to acquiesce in Continental’s objection to an inspection he reasonably believed was required, Luder reported that Continental tried to cause him to violate FAA regulations.
The court also found that Luder’s belief that the airplane encountered severe turbulence was reasonable. A crewmember who was on the first flight had described winds so strong they nearly tore the wings off, sent a person to the medical clinic, and appeared on the radar as pink—the greatest degree of turbulence. Defendant was found to have known that Luder logged the severe turbulence and requested an inspection, as the logbook entry and triggered inspection by Luder was the subject of a heated telephone conversation between him and Continental officials.
ADVERSE EMPLOYMENT ACTION; SUSPENSION WITHOUT PAY
In Cont’l Airlines, Inc. v. Admin. Review Bd., USDOL, No. 15-60012 (5th Cir. Jan. 7, 2016) (unpublished) (2016 U.S. App. LEXIS 324; 2016 WL 97461)(case below ARB No. 10-026, ALJ No. 2008-AIR-00009), The court stated that, because suspension without pay is a way to dissuade employees from engaging in protected conduct, the Defendant’s suspension of the Complainant for two weeks without pay was an adverse employment action.
CONTRIBUTING FACTOR; COMPLAINANT’S LOGBOOK ENTRY CALLING FOR INSPECTION FOUND TO HAVE CONTRIBUTED TO DEFENDANT’S DECISION TO SUSPEND THE COMPLAINANT
In Cont’l Airlines, Inc. v. Admin. Review Bd., USDOL, No. 15-60012 (5th Cir. Jan. 7, 2016) (unpublished) (2016 U.S. App. LEXIS 324; 2016 WL 97461)(case below ARB No. 10-026, ALJ No. 2008-AIR-00009), the Fifth Circuit found that substantial evidence supported the ARB’s decision that “Continental [the Petitioner] retaliated against Luder [the AIR21 Complainant] when it suspended him for logging turbulence on an earlier flight reported to him by a member of the previous flight crew and triggering an inspection which resulted in a delayed flight.” Slip op. at 1-2. The court found that Luder’s protected conduct contributed to the adverse employment action, as Luder’s logbook entry affected Continental’s decision to suspend him. In its letter advising Luder of his sanctions, Continental acknowledged that he “requested an aircraft inspection” and that it punished him for “calling for the inspection,” and as such, his “actions were unprofessional.”
PRETEXT; PILOT’S IMPOLITE CONVERSATION AND FAILURE TO FOLLOW PROCEDURES REJECTED AS JUSTIFICATION FOR SUSPENSION WHERE PILOT HAD AUTHORITY UNDER 14 C.F.R. § 91.3 TO DECIDE HAT THE PLANE WAS UNSAFE TO OPERATE
In Cont’l Airlines, Inc. v. Admin. Review Bd., USDOL, No. 15-60012 (5th Cir. Jan. 7, 2016) (unpublished) (2016 U.S. App. LEXIS 324; 2016 WL 97461)(case below ARB No. 10-026, ALJ No. 2008-AIR-00009), the Fifth Circuit found that substantial evidence supported the ARB’s decision that “Continental [the Petitioner] retaliated against Luder [the AIR21 Complainant] when it suspended him for logging turbulence on an earlier flight reported to him by a member of the previous flight crew and triggering an inspection which resulted in a delayed flight.” Slip op. at 1-2. The court found that substantial evidence supported the ARB’s finding that the alternative reasons presented by the Defendant were pretextual. The court rejected the Defendant’s argument that Luder’s impolite conversation and failure to follow procedures justified his suspension. Instead, the court found that Luder had the authority to decide that the plane was unsafe to operate under 14 C.F.R. § 91.3, which provides that “[t]he pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.” Similarly, Luder followed Continental procedures for reporting his concern for the safety of the aircraft. Therefore, the ALJ was entitled to find that the real reason for Luder’s refusal to agree with them that an inspection was not required under Continental’s flight operations manual.

Clean Air Act

Perez v. Idaho Falls Sch. Dist. No. 91, No. 15-cv-19 (N.D. Idaho Mar. 15, 2016) (2016 U.S. Dist. LEXIS 34513) (case below ALJ No. 2015-CAA-00001)
Memorandum Decision and Order
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Summary:
DISTRICT COURT DECLINES TO ISSUE WRIT OF MANDAMUS COMPELLING DOL TO DISMISS PENDING CAA COMPLAINT WHERE SECRETARY OF LABOR HAD FILED AN AHERA COMPLAINT IN DISTRICT COURT INVOLVING THE SAME FACTS AND SEEKING THE SAME REMEDY
In Perez v. Idaho Falls Sch. Dist. No. 91, No. 15-cv-19 (N.D. Idaho Mar. 15, 2016) (2016 U.S. Dist. LEXIS 34513) (case below ALJ No. 2015-CAA-00001), the Secretary of Labor filed a complaint in Federal District Court under the Asbestos Hazard Emergency Response Act of 1986 (“AHERA”), and the Defendant filed a petition for writ of mandamus alleging that the Secretary had commenced two actions in different federal venues alleging the same facts, seeking the same remedy, and promoting the same public purpose, i.e., a CAA retaliation action, and the present AHERA action. The Defendant sought a writ dismissing the CAA proceeding before DOL. The court dismissed the petition on the grounds that the CAA grants exclusive jurisdiction over whistleblower claims to the DOL and the Court of Appeals, and because the Defendant had not exhausted its administrative remedies. The court found that although it has jurisdiction under 42 U.S.C. § 7622(f) to compel a nondiscretionary duty, there is no nondiscretionary duty of an ALJ to dismiss in the instant circumstance. Moreover, the court found that even if there was a nondiscretionary duty, an adequate remedy exists in the form of an appeal of the ALJ’s decision to the ARB, and then to the Ninth Circuit. The court rejected the Defendant’s concern about being subject to double recovery because the CAA and AHERA actions could eventually be consolidated for review in the Ninth Circuit.

Consumer Financial Protection Act

Veard v. F&M Bank, No. 15-cv-498 (M.D. Tn. Feb. 18, 2016) (2016 U.S. Dist. LEXIS 19835; 2016 WL 645309)
Memorandum
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Summary:
PROTECTED ACTIVITY; MERELY ASKING A QUESTION ABOUT AN ACTIVITY GOVERNED BY MORTGAGE LAWS IS NOT PROTECTED ACTIVITY
PROTECTED ACTIVITY; SUBJECTIVE AND OBJECTIVE STANDARDS; MERE STRONG DISAGREEMENT WITH SUPERIORS ABOUT CREDITWORTHINESS OF LOAN DOES NOT MAKE BELIEF OF CFPA VIOLATION AN OBJECTIVELY REASONABLE BELIEF
In Veard v. F&M Bank, No. 15-cv-498 (M.D. Tn. Feb. 18, 2016) (2016 U.S. Dist. LEXIS 19835; 2016 WL 645309), the Plaintiff alleged that the Defendant improperly discharged him in violation of the Consumer Financial Protection Act in retaliation for complaining about illegal activity in the bank’s mortgage business. The court granted summary judgment dismissing the the CFPA claim. First, the court found that the Plaintiff had not engaged in protected activity under the CFPA when he merely asked a question about an activity governed by mortgage laws, rather a complaint about specific behavior. The Plaintiff had been told that the Defendant seeks to comply with those laws. Second, the court found that the Plaintiff had not engaged in protected activity under the CFPA when disagreed with a decision to deny a loan. The court stated that the Plaintiff was required to show that he believed that the Defendant’s conduct violated the CFPA and that a reasonable person in his position would have believed that the conduct constituted such a violation -- that is, the Plaintiff must satisfy both a subjective and objective standard. The court cited SOX caselaw by analogy. Here, the court found that the Plaintiff met the subjective standard, but not the objective standard. The court found that the Plaintiff had made no showing that the Defendant was required to grant the loan and did not explain how it was illegal for the loan to be declined, even if the reason turned out to be based on a misunderstanding of tax law or policy. Mere disagreement with supervisors does not make their decisionmaking "illegal" or transform an emphatically expressed subjective belief into an objectively reasonable one.
CLEAR AND CONVINCING EVIDENCE; PLAINTIFF’S INSUBORDINATION
In Veard v. F&M Bank, No. 15-cv-498 (M.D. Tn. Feb. 18, 2016) (2016 U.S. Dist. LEXIS 19835; 2016 WL 645309), the Plaintiff alleged that the Defendant improperly discharged him in violation of the Consumer Financial Protection Act in retaliation for complaining about illegal activity in the bank’s mortgage business. The court granted summary judgment dismissing the the CFPA claim, finding that the Defendant had offered clear and convincing evidence that it would have terminated the Plaintiff’s employment in the absence of any protected activity. Specifically, the court found that the record showed that the Plaintiff had been insubordinate, and that such insubordination was relied on in making the decision to terminate the Plaintiff’s employment.

Energy Reorganization Act

Sanders v. Energy Northwest, No. 14-35368 (9th Cir. Feb. 12, 2016) (opinion) (2016 U.S. App. LEXIS 2467; 2016 WL 560809) (case below D.C. No. 2:12-cv-00580-TOR)
Opinion
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Summary:
[Nuclear & Environmental Whistleblower Digest XII C 5]
PROTECTED ACTIVITY UNDER THE ERA; OBJECTION TO SECURITY LEVEL DESIGNATION FOUND NOT TO CONSTITUTE PROTECTED ACTIVITY WHERE THE COMPLAINANT WAS NOT RAISING A FIRST PERSON COMPLAINT, RESPONDENT ALREADY KNEW ABOUT PROBLEM AND WAS REMEDYING IT; THERE WAS LITTLE NEXUS TO AN ONGOING SAFETY CONCERN; AND COMPLAINANT HAD MERELY RAISED A SINGLE DIFFERENCE OF OPINION ABOUT THE RATING
In Sanders v. Energy Northwest, No. 14-35368 (9th Cir. Feb. 12, 2016) (opinion) (2016 U.S. App. LEXIS 2467; 2016 WL 560809) (case below D.C. No. 2:12-cv-00580-TOR) , the Ninth Circuit affirmed the district court’s summary judgment, holding that the Plaintiff did not engage in protected activity when he objected to the security level designation given to an internal “condition report” of a safety procedure violation. In so holding, the court rejected Plaintiff’s contention that this objection constituted protected activity under 42 U.S.C. § 5851.
According to the relevant factual findings, a “condition report” was a report generated by employees when safety procedures may have been violated. Once a condition report was generated, a condition review group assigned the report a severity level in decreasing order of severity: “Alpha,” “Bravo,” “Charlie,” or “Delta.” Plaintiff alleged that he had disagreed with a decision to assign a condition report the “Charlie” designation, and that the condition report should have been designated as “Bravo.” Sanders verbally expressed this disagreement to a plant manager, stating “If you guys want to let it go as a Charlie, I’ll let it go as a Charlie, but I’m not in agreement.”
In consideration of the parties’ arguments, the court discussed Bechtel, a case in which an employee carpenter disagreed with his foreman about the safety procedures for measuring the amount of radioactive contamination of the carpentry tools. Bechtel Constr. Co. v. Sec’y of Labor, 50 F.3d 926, 932-33 (11th Cir. 1995). In that case, the carpenter raised his concerns initially with his foreman, and then with the foreman’s supervisor. The Eleventh Circuit held that the carpenter’s conduct qualified as protected activity, noting that he “did not merely make general inquiries regarding safety but, rather, he raised particular, repeated concerns about safety procedures for handling contaminated tools.” The Eleventh Circuit also noted that “questioning one’s supervisor’s instructions on safety procedures [is] ’tantamount to a complaint.’” The Eleventh Circuit also stated that “Section 5851 does not protect every act that an employee commits under the auspices of safety,” and that “[w]histleblowing must occur through prescribed channels.”
The court also considered Stone & Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1574 (11th Cir. 1997), in which the Plaintiff, an employee ironworker, was responsible for holding a weekly safety meeting. Ironworkers had recently been assigned a new responsibility, ensuring fire safety. At the weekly safety meeting, the ironworkers complained that this procedure was unsafe. The Plaintiff raised the safety issue with the company’s fire marshal and also filed a complaint with the Nuclear Regulatory Commission. The Eleventh Circuit concluded, “If an employee talks about safety to a plant fire official, an employer and an industry regulator, he or she acts squarely within the zone of conduct that Congress marked out under 42 U.S.C. § 5851(a)(1).”
In this case, Plaintiff maintained that his difference in opinion about the “Charlie” designation of a condition report was an objection to a specific practice, policy, or occurrence that he reasonably believed was a nuclear safety issue, similar to the employees’ complaints in Bechtel and Stone & Webster. The court, however, found Sanders’ conduct to be distinguishable. Unlike the carpenter and the ironworker employees who raised first-hand safety concerns with their supervisors, Sanders had no independent knowledge of possible safety violations prior to the creation of the internal condition reports, nor did he generate these condition reports. The Defendant was already aware of the potential safety violations, and its internal process for remediation was underway.
Furthermore, the court found no suggestion in the record that because condition reports were labeled a “Bravo” or a “Charlie,” they would not be remedied in due course. The court also did not find any suggestion of any safety concern that was overlooked, neglected, or concealed by management. Instead, the court found that Sanders simply expressed a different opinion from a co-manager, then “let it go.”
The court concluded that Sanders’ single expression of a difference of opinion about the “Charlie” designation of one existing internal condition report lacked a sufficient nexus to a concrete, ongoing safety concern. The court therefore decided that Sanders’ conduct fell outside the scope of the Act’s protection. Therefore, the court affirmed the district court’s grant of summary judgment to Energy Northwest.
Dissenting, Judge Graber wrote that the majority wrongly narrowed the scope of the Energy Reorganization Act by rejecting the whistleblower claim on the basis that the safety problems were not overlooked, neglected, or concealed by management and were not concrete and ongoing issues.

Fair Labor Standards Act

Phelps v. City of Parma, No. 14-cv-00085 (D. Idaho Mar. 31, 2016) (2016 U.S. Dist. LEXIS 44079; 2016 WL 1275593)
Memorandum Decision and Order
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Summary:
PROTECTED ACTIVITY UNDER THE RETALIATION PROTECTION PROVISION OF THE FAIR LABOR STANDARDS ACT; APPLICATION OF THE “FAIR NOTICE” TEST OF KASTEN v. SAINT-GOBAIN PERFORMANCE PLASTICS CORP.
In Phelps v. City of Parma, No. 14-cv-00085 (D. Idaho Mar. 31, 2016) (2016 U.S. Dist. LEXIS 44079; 2016 WL 1275593), the Plaintiff was a city clerk who claimed that the former Mayor and certain City Council members retaliated against her in violation of the FLSA, 29 U.S.C. § 215(a)(3), for notifying the former Mayor that the manner in which the police department was being paid violated the FLSA in several respects. The Defendants filed for summary judgment on the ground that the Plaintiff did not engage in protected activity under the FLSA because she never had to “step outside the role” of her employment and never “[took] a position adverse to the employer.” Slip op. at 18 (citing Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 627 (5th Cir. 2008). The court noted that “[s]everal circuits have held an employee does not engage in protected activity under the FLSA unless that employee somehow steps outside his normal job role and takes an action adverse to the employer.” Id. at 19 (citations omitted). The court found, however, that after the briefing on Defendants’ Motion for Summary Judgment was complete, the Ninth Circuit in Rosenfield v. GlobalTranz Enterprises, Inc., 811 F.3d 282 (9th Cir. 2015) “addressed whether the ‘stepping outside role’ requirement of Hagan, McKenzie, and other circuit cases applies in this circuit.” Id. at 22. The Ninth Circuit did not decide whether to adopt that requirement, but instead applied the “fair notice” rule of Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 (2011), stating “‘To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.’” Id. at 23-24, quoting Rosenfield at 286, 287, citing Kasten, 563 U.S. at 14. Applying that precedent, and reviewing the record, the district court concluded:
Ms. Phelps’ deposition testimony, notes and actions illustrate she was attempting to protect the City and to ensure its compliance with the FLSA, and was not asserting rights protected by the FLSA on her own or others’ behalf. Under such circumstances, Defendants did not have fair notice that Ms. Phelps was making a complaint that could subject them to a later claim of retaliation. Rosenfield, 811 F.3d at 288; see also McKenzie, 94 F.3d at 1487 â€¦. Ms. Phelps FLSA [complaint] accordingly fails to establish the first element of a prima facie FLSA retaliation claim, that she engaged in a protected activity pursuant to § 215(a)(3).
Id. at 28-29 (footnote omitted).

Federal Railroad Safety Act

Armstrong v. BNSF Ry. Co., No. 12-cv-7962 (N.D. Ill. Dec. 15, 2016) (2016 U.S. Dist. LEXIS 173199)
Memorandum Opinion and Order
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Summary:
FRSA FRAMEWORK FOUND NOT TO CONSTITUTE AN EXCEPTION TO FRCP 54(d)(1), WHICH ALLOWS COSTS FOR A PREVAILING PARTY; THUS A DISTRICT COURT MAY AWARD COSTS TO DEFENDANT IN AN FRSA RETALIATION CASE
In Armstrong v. BNSF Ry. Co., No. 12-cv-7962 (N.D. Ill. Dec. 15, 2016) (2016 U.S. Dist. LEXIS 173199), a jury returned a verdict in favor of the Defendant on the Plaintiff’s FRSA retaliation claim, and the Clerk of Court entered a judgment against the Plaintiff directing that the Defendant shall recover costs. Plaintiff appealed, and moved the district court to vacate the order of costs. The Defendant filed a bill of costs in the amount of $31,054.23. The Plaintiff argued, inter alia, that the Defendant’s bill of costs be vacated or stayed because the FRSA creates a statutory exception to Rule 54(d)(1) of the Federal Rules of Civil Procedure.
Rule 54(d)(1) provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” The court noted:
The FRSA provides that “an employee prevailing in [an enforcement action] shall be entitled to all relief necessary to make the employee whole.” 49 U.S.C. Â§ 20109(e)(1) (emphasis added). Such relief includes, inter alia, “compensatory damages, including compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.” Id. Â§ 20109(e)(2)(C) (emphasis added). Section 20109 is silent, however, on a prevailing employer’s ability to cover costs.
The FRSA further states that enforcement actions shall be governed under the Department of Labor complaint procedure set forth in 49 U.S.C. Â§ 42121(b). Pursuant to that section, if the Secretary of Labor determines that an FRSA violation has occurred, then “at the request of the complainant,” the Secretary shall assess against the violator “a sum equal to the aggregate amount of all costs and expenses (including attorneys’ and expert witness fees) reasonably incurred, as determined by the Secretary of Labor, by the complainant for, or in connection with,” the bringing of the complaint. Id. Â§ 42121(b)(3)(B)(iii) (emphasis added). Once again, the statute omits any discussion of fees due to a prevailing employer, with one exception: if the Secretary finds that a complaint “is frivolous or has been brought in bad faith,” the Secretary may award the employer “a reasonable attorney’s fee not exceeding $1,000.” Id. Â§ 42121(b)(3)(C).

Slip op. at 3-4.
The Plaintiff argued that this statutory framework constitutes an exception to Rule 54(d)(1). The court disagreed based on the Supreme Court’s decision in Marx v. Gen. Revenue Corp., 133 S. Ct. 1166 (2013). The court found that the FRSA only confirms “the background rule,” and that "[t]he FRSA’s silence regarding costs in non-frivolous cases is not ‘contrary’ to Rule 54(d)(1)’s presumption, nor does it limit the Court’s discretion in that area.” Id. at 7. The court found, therefore, that it may award costs to prevailing defendants in FRSA cases.
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Koziara v. BNSF Railway Co., No. 16-1577 (7th Cir. Oct. 31, 2016) (2016 U.S. App. LEXIS 19528; 2016 WL 6407246)
Opinion
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Summary:
Reversing judgment in favor of the plaintiff.

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Thomas v. Union Pac. R.R. Co., No. 15-cv-01375 (D. Or. Aug. 23, 2016) (2016 U.S. Dist. LEXIS 111957; 2016 WL 4473429)
Opinion and Order
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Summary:
ADVERSE ACTION; DISTRICT COURT FOLLOWS ARB’S FRICKA DECISION IN FRSA CASE FOR THE PROPOSITION THAT NON-TANGIBLE ACTIVITY IS INCLUDED IN THE DEFINITION OF ADVERSE ACTION IF IT IS UNFAVORABLE AND NON-TRIVIAL, EITHER “AS A SINGLE EVENT OR IN COMBINATION WITH OTHER DELIBERATE EMPLOYER ACTIONS ALLEGED”
In Thomas v. Union Pac. R.R. Co. , No. 15-cv-01375 (D. Or. Aug. 23, 2016) (2016 U.S. Dist. LEXIS 111957; 2016 WL 4473429), the Plaintiff alleged that her former employer, Defendant Union Pacific Railroad Company, terminated her in retaliation for filing a workplace injury report in violation of the Federal Rail Safety Act, 49 U.S.C. § 20109 (FRSA). The Plaintiff moved for partial summary judgment and the Defendant moved for summary judgment. The court granted the Plaintiff’s motion in part and denied the Defendant’s motion. One ground on which the Defendant had relied was the contention that “although Plaintiff relies on several adverse actions, only the termination is a sufficient unfavorable employment action.” The Plaintiff argued that “her allegations must be viewed in their entirety, not in isolation, and are evidence of a pattern of conduct in violation of the FRSA.” The court reviewed the caselaw on the subject in non-FRSA cases, including the ARB’s decision in Fricka v. Nat’l R.R. Passenger Corp., ARB No. 14-047, 2015 WL 9257754, at *3-4 (ARB Nov. 24, 2015), and noted the expansive construction generally given to adverse action in retaliation cases.
In the instant case, the Plaintiff alleged that following her workplace injury report she was “subject to (1) intimidating and harassing interviews by the [Defendant’s Director of Terminal Operations and the Manager of Terminal Operations]; (2) increased surveillance by Defendant’s employees; (3) increased employee testing; (4) discipline for a pattern of absenteeism; and (5) dismissal.” The Defendant replied with citations to decisions “indicating that investigative interviews standing alone or employer surveillance are not considered adverse action in retaliation cases.” The court found, however, that “many of the cases Defendant relies on are not FRSA cases with the expanded concept of unfavorable or adverse employment action. Additionally, these cases are enormously fact-dependent. The facts here, which on this motion must be examined in a light most favorable to Plaintiff, could support an inference that [the Defendant’s Director of Terminal Operations] was out to terminate her from the beginning.” The court also found that the Plaintiff alleged that when she met with the Director of Terminal Operations to complete her initial injury report, he did not let her have a co-worker present, do not let her verify the date of the incident, told her that her symptoms were the result of cumulative events rather than a single traumatic incident, and warned her about the repercussions for filing a false report. The court found that such facts could suggest that this meeting was more than just an “investigative interview.”
The court denied summary judgment on the issue, ruling:
   While Fricka is not binding here, it recognizes the broad language of FRSA. Given the Ninth Circuit’s expansive view of retaliatory “adverse employment actions” in Title VII cases, and the even more expansive language in FRSA, I believe the Ninth Circuit would rule consistently with Fricka and conclude that non-tangible activity is included in the definition if it is unfavorable and non-trivial, either “as a single event or in combination with other deliberate employer actions alleged.” Fricka, 2015 WL 9257754, at *3.
   Furthermore, although the Ninth Circuit has made the following observation in the context of discussing the causation element of a retaliation claim and not the adverse employment action element, it has expressly recognized “patterns of antagonism.” â€¦.
   When the record is viewed in Plaintiff’s favor, a reasonable juror could conclude that Defendant’s actions before termination could have had a chilling effect on protected activity, were unfavorable, and were more than trivial. Thus, even when these incidents are viewed in isolation, there are issues of fact as to whether they are “adverse employment actions” under FRSA. Moreover, whether each of those three acts is a separately cognizable adverse employment action is immaterial because they are properly viewed, when considering the facts in a light most favorable to Plaintiff, as evidence of a pattern of harassing or antagonistic conduct which culminated in termination.

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Stokes v. SEPTA, No. 15-3967 (3d Cir. Aug. 9, 2016) (not precedential) (2016 WL 4191500; 2016 US App LEXIS 14605) (appeal from the E.D. Pa. No. 2:15-cv-02719)
Opinion
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Summary:
XXXX
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Welch v. Union Pac. R.R. Co., No. 16-cv-00431 (W.D. Mo. Aug. 4, 2016) (2016 U.S. Dist. LEXIS 102193; 2016 WL 4154760)
Order and Opinion Granting Defendant's Motion to Dismiss
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Summary:
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Jones v. BNSF Ry. Co., No. 14-2616 D. Kan. July 11, 2016) (2016 U.S. Dist. LEXIS 90212; 2016 WL 3671233) (case below 2014-FRS-53 (Jones) and -63 (Hodges))
Memorandum and Order
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Summary:
Order denying Plaintiffsâ€™ motions to alter or amend judgment of January 14, 2016.
Worcester v. Springfield Terminal Ry. Co., No. 14-1965 (1st Cir. June 29, 2016) (2016 U.S. App. LEXIS 11941) (case below No. 2:12-cv-00328 (D. Me. June 27, 2014))
Opinion
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Summary:
PUNITIVE DAMAGES; FIRST CIRCUIT FINDS THAT “RECKLESS DISREGARD OR CALLOUS INDIFFERENCE” STANDARD APPLIES IN FRSA WHISTLEBLOWER CASES; ARB’S DECISION TO USE THAT COMMON LAW STANDARD FOUND TO BE PERSUASIVE
In Worcester v. Springfield Terminal Ry. Co., No. 14-1965 (1st Cir. June 29, 2016) (2016 U.S. App. LEXIS 11941), the Defendant had appealed from a jury verdict awarding punitive damages to the Plaintiff under the FRSA whistleblower provision at 49 U.S.C. § 20109. The Defendant argued that the district court instructions to the jury gave the incorrect standard for awarding punitive damages. The First Circuit, however, found that the district court properly instructed the jury that it could award punitive damages if it found that the Defendant “acted, ‘[w]ith malice or ill will or with knowledge that its actions violated federal law or with reckless disregard or callous indifference to the risk that its actions violated federal law’.” Slip op. at 6. This standard, the court noted, came from the Supreme Court’s decision in Smith v. Wade, 461 U.S. 30, 56 (1983), and is the standard adopted by the USDOL Administrative Review Board in Petersen v. Union Pac. R.R. Co., ARB Case No. 13-090, 2014 WL 6850019, at *3 (Nov. 20, 2014). The court indicated that even if the ARB’s interpretation of the FRSA is not entitled to Chevron deference, that interpretation was still persuasive (citing Grosso v. Surface Transp. Bd., 804 F.3d 110, 117 (1st Cir. 2015), and Skidmore v. Swift & Co., 323 U.S. 134 (1944)), given that the Supreme Court looked to the common law in determining both the standard that should govern the award of punitive damages in Smith, and the ARB had followed that same course.
Rookaird v. BNSF Railway Co., No. 14-cv-176 (W.D. Wash. May 27, 2016) (case below 2014-FRS-9)
Jury Verdict
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Summary:
JURY VERDICT IN FRSA CASE TOTALING OVER $1.6 MILLION
In Rookaird v. BNSF Railway Co., No. 14-cv-176 (W.D. Wash. May 27, 2016) (case below 2014-FRS-9), the District Court for the Western District of Washington entered the following Judgment:

Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
* * *
THE COURT HAS ORDERED THAT
Judgment is entered against defendant and in favor of plaintiff for past earnings in the amount of $420,249, for future earnings in the amount of $467,660, for mental and/or emotional distress in the amount of $558,400, and for punitive damages in the amount of $200,000 for a total amount of $1,646,309.
Conrad v. CSX Transportation, Inc., No. 15-1035 (4th Cir. May 25, 2016) (2016 U.S. App. LEXIS 9570; 2016 WL 3006097)(case below D. Md. 13-cv-3730; ALJ No. 2012-FRS-88)
Opinion
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Summary:
KNOWLEDGE OF PROTECTED ACTIVITY; FOURTH CIRCUIT REJECTS IMPUTED KNOWLEDGE THEORY AND HOLDS THAT DECISIONMAKERS MUST BE SHOWN TO HAVE BEEN AWARE OF THE PROTECTED ACTIVITY
In Conrad v. CSX Transportation, Inc., No. 15-1035 (4th Cir. May 25, 2016) (2016 U.S. App. LEXIS 9570)(case below D. Md. 13-cv-3730; ALJ No. 2012-FRS-88), the Fourth Circuit affirmed the district court's grant of summary judgment in favor of the Defendant. The district court had found that the Plaintiff failed to show that any of the Defendant's employees involved in the disciplinary process had known about the Plaintiff's union activities. Conrad v. CSX Transp., Inc., No. WMN-13-3730, 2014 WL 7184747, at *5 (D. Md. Dec. 15, 2014). The Fourth Circuit rejected the Plaintiff's argument on appeal that "knowledge of an employeeâ€™s protected activities may be imputed to the decision-makers if any supervisory employee at the company knew of the subordinate employeeâ€™s protected activity when the decision-maker took the unfavorable personnel action, regardless of whether the person with knowledge played a role in the disciplinary process." The Fourth Circuit found persuasive ARB authority holding that "an employee 'must establish that the decision-makers who subjected him to the alleged adverse action were aware of the protected activity.' Rudolph v. Natâ€™l R.R. Passenger Corp., ARB Case No. 11-037, 2013 WL 1385560, at *9 (Depâ€™t of Labor Mar. 29, 2013)..." and that "it is 'insufficient' to 'demonstrat[e] that an employer, as an entity, was aware of the protected activity.' Rudolph, 2013 WL 1385560, at *9...."
DiMauro v. Springfield Terminal Railway Co., No. 16-cv-71, 72 and 73 (D. Me. May 20, 2016) (2016 WL 2992073; 2016 U.S. Dist. LEXIS 66584)
Decision and Order on Motions to Dismiss
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Summary:
KICK OUT PROVISION
"[W]hen the Department of Labor has not taken action within the 210 days, the worker notifies the Department of Labor that he will proceed in district court, and a Supervising Investigator then notifies the worker that as a result the Department of Labor will dismiss his claim, there is no thirty-day appeal period applicable whose passage results in the dismissal becoming a final Department of Labor decision that can be reviewed only in the court of appeals."

Slip op. at 10.
Miller v. BNSF Ry., No. 14-cv-2596 (D. Kan. May 17, 2016) (2016 U.S. Dist. LEXIS 64869; 2016 WL 2866152)
Memorandum and Order
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Summary:
PROTECTED ACTIVITY UNDER THE FRSA; § 20109(c) ONLY APPLIES TO CASES INVOLVING WORK-RELATED INJURIES OR ILLNESSES
In Miller v. BNSF Ry., No. 14-cv-2596 (D. Kan. May 17, 2016) (2016 U.S. Dist. LEXIS 64869; 2016 WL 2866152), the Plaintiff sought protection under the FRSA, 49 U.S.C. § 20109(c). The Defendant contended that the Plaintiff was not â€œengaged in protected activityâ€� because § 20109(c) only applies to cases involving work-related injuries or illnesses. The court agreed, adopting the reasoning of the Third Circuit in Port Authority Trans-Hudson Corp. v. Secretary of Labor (“PATH”), 776 F.3d 157 (3d Cir. 2015), and holding that 49 U.S.C. § 20109(c)(2) is limited to addressing on-duty injuries. In the instant case, the Plaintiff “took medication as part of her doctor’s plan for treatment of her bipolar disorder and ADHD, and her sleep disorder was the consequence of following her doctor’s orders. Plaintiff [did] not assert, however, that her bipolar disorder, ADHD, and medication-induced sleep disorder were in any way work-related impairments. Thus, Plaintiff did not engage in protected activity under the FRSA, and BNSF is granted summary judgment on this claim.” Slip op. at 30 (footnotes omitted). The court rejected the Plaintiff’s request to give Chevron deference to the ARB decision in Bala v. Port Authority Trans-Hudson Corp., ARB No. 12-048, ALJ Case No. 2010-FRS-26 (ARB Sept. 27, 2013), where the ARB determined the phrase “protected activity” in subsection (c)(2) also referred to non-work-related activity. The court noted that the PATH court rejected Chevron deference, and concluded that the ARB had misinterpreted the statute. The district court stated: “Accordingly, Bala is a nonprecedential, reversed agency decision and is thus not entitled to Chevron deference.” Slip op. at 30 (footnote omitted).
Despain v. BNSF Railway Co., No. 15-cv-08294 (D. Ariz. May 13, 2016) (2016 WL 2770144; 2016 U.S. Dist. LEXIS 63455) (case below 2015-FRS-00067)
Order [denying motion to dismiss]
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Summary:
KICK-OUT PROVISION
A district court action under the kick-out provision is essentially a continuation of the pending agency action and therefore governed by the already-satisfied 180-day limitations period.
Lee v. Norfolk Southern Railway Co., No. 13-cv-4 (W.D. N.C. May 11, 2016) (2016 WL 2746626; 2016 U.S. Dist. LEXIS 62307) (case below 2013-FRS-4)
Memorandum Opinion and Order
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Notice of appeal to the Fourth Circuit filed.
Summary:
Court grants summary judgment because the uncontroverted clear and convincing evidence shows that the Defendant would have taken the same unfavorable personnel action against the Plaitniff in the absence of the Plaintiff's protected activity.
Lillian v. National Railroad Passenger Corp. (AMTRAK), No. 14-cv-02605 (N.D. Ill. Mar. 30, 2016) (2016 U.S. Dist. LEXIS 41940)
Memorandum Opinion and Order
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Summary:
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Wagner v. Grand Trunk W. R.R., No. 15-10635 (E.D. Mich. Mar. 23, 2016) (2016 U.S. Dist. LEXIS 38406; 2016 WL 1161351) (case below ARB No. 15-030; 2014-FRS-00059)
Opinion and Order Denying Defendant’s Motion to Dismiss
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Summary:
XXXX
BNSF Railway Co. v. USDOL, Administrative Review Board, 816 F.3d 628 (10th Cir. Mar. 7, 2016) (No. 14-9602) (2016 U.S. App. LEXIS 4234; 2016 WL 861101) (case below ARB No. 13-006, ALJ No. 2012-FRS-19) (Christopher Cain, Intervenor/Complainant)
Opinion
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Summary:
XXXX
Dafoe v. BNSF Railway Co.., No. 14-439 (D. Minn. Feb. 26, 2016) (2016 WL 778367) (case below 2013-FRS-22)
Memorandum Opinion and Order Granting Defendant’s Motion for Summary Judgment
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Summary:
XXXX
Rader v. Norfolk Southern Ry., No. 1:13-cv-298 (E.D. Tenn. Feb. 10, 2016) (2016 U.S. Dist. LEXIS 17913)
Memorandum Opinion
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Summary:
In Rader v. Norfolk Southern Ry. , No. 1:13-cv-298 (E.D. Tenn. Feb. 10, 2016) (2016 U.S. Dist. LEXIS 17913), the court denied Defendants’ Norfolk Southern Railway Company’s (“NSRC”) and Norfolk Southern Corporation’s (“NSC”) Motion for Summary Judgment, finding that Plaintiff had presented sufficient evidence to meet the permissive threshold applicable at the summary judgment stage of proceedings.
Jones v. BNSF Ry. Co., No. 14-2616 D. Kan. Jan. 14, 2016) (2016 U.S. Dist. LEXIS 4887; 2016 WL 183514) (case below 2014-FRS-53 (Jones) and -63 (Hodges))
Memorandum and Order
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Summary:
CONTRIBUTING FACTOR; TEMPORAL PROXIMITY ALONE INSUFFICIENT
In Jones v. BNSF Ry. Co. , No. 14-2616 D. Kan. Jan. 14, 2016) (2016 U.S. Dist. LEXIS 4887; 2016 WL 183514) (case below 2014-FRS-53 (Jones) and -63 (Hodges)), Plaintiff Brian Jones alleged that Defendant BNSF retaliated against him for reporting an altercation with a fellow employee and for obtaining a restraining order against that employee. Plaintiff Nick Hodges alleged Defendant retaliated against him for reporting verbal threats made against Jones by another employee in the same altercation. The court granted Defendant’s Motions for Summary Judgment on Plaintiffs’ claims and dismissed Plaintiffs’ Complaint.
Plaintiff Jones claimed that BNSF retaliated against him by holding him out from service, with pay, after he reported a threat by a coworker and obtained a temporary restraining order (“TRO”) against that coworker. BNSF argued that Jones failed to make a prima facie case of retaliation under the FRSA.
The court found that Jones failed to establish a prima facie case of unlawful retaliation and BNSF was indeed entitled to summary judgment, because Jones had not presented evidence sufficient to support a finding that his protected activity was a contributing factor to his discipline. Specifically, the court found that Jones did not point to any direct evidence of intentional retaliation, and that evidence of temporal proximity alone was insufficient to present a genuine factual issue when the employer was concerned about the problem before the employee engaged in the protected activity. Jones offered no further evidence of discriminatory animus, and there was no evidence that BNSF was hostile towards or changed its attitude towards Jones because he obtained the TRO. The court found that the record showed that removing an employee who was part of a workplace altercation pending an investigation was contemplated by BNSF policies and procedures, and that Jones’s union representative advised him as much. Furthermore, the court stated that Jones’s argument that his supervisors did not need to remove him from service in order to comply with the TRO in essence would require the court to sit as a “super-personnel department” to second guess the decisions of the employer.
CLEAR AND CONVINCING EVIDENCE ON HIRING DECISION; OTHER APPLICANTS WERE MORE QUALIFIED
In Jones v. BNSF Ry. Co. , No. 14-2616 D. Kan. Jan. 14, 2016) (2016 U.S. Dist. LEXIS 4887; 2016 WL 183514) (case below 2014-FRS-53 (Jones) and -63 (Hodges)), Plaintiff Brian Jones alleged that Defendant BNSF retaliated against him for reporting an altercation with a fellow employee and for obtaining a restraining order against that employee. Plaintiff Nick Hodges alleged Defendant retaliated against him for reporting verbal threats made against Jones by another employee in the same altercation. The court granted Defendant’s Motions for Summary Judgment on Plaintiffs’ claims and dismissed Plaintiffs’ Complaint.
Plaintiff Hodges claimed that he was “blackballed” from a machinist apprentice position at BNSF after he reported a verbal threat of violence against Jones. The court found that there was no serious dispute that Hodges had established a prima facie case, as 1) Hodges engaged in protected activity when he reported to BNSF what he heard the coworker say to Jones; 2) failure to promote Hodges was an adverse employment action; 3) Defendant knew about Hodges’s protected activity; and 4) Hodges’s reports and testimony were a contributing factor in BNSF’s decision not to promote him, as supported by testimony.
The court found that even though Hodges had shown that his protected activity contributed in some way to BNSF’s decision not to hire him for machinist apprentice positions, BNSF was entitled to summary judgment because it demonstrated by clear and convincing evidence that it would have made the same hiring decisions even if Hodges had not engaged in a protected activity. The evidence was uncontroverted that Hodges began applying for machinist apprentice positions well before the altercation between Jones and the coworker. In early 2012, he interviewed for an open position, but was not selected, in part because he did not have sufficient education and/or experience. In January 2013, before the altercation, Hodges again applied for an apprentice position and was not hired. It was undisputed that the applicants selected for the position had more experience, training, and education than Hodges. Likewise, it was undisputed that after Hodges’s reports and testimony about the altercation, the applicants hired for the apprentice positions he applied for were more qualified, with technical degrees and years of experience and training that Hodges lacked working as heavy machinery mechanics. The court therefore found the record to show that Hodges was not promoted to a machinist apprentice position because the position was given to more qualified applicants. Thus, the undisputed evidence was clear and convincing that, even if BNSF was motivated in part by hostility to Hodges’s protected activity, BNSF would not have promoted Hodges for the machinist apprentice positions because he was competing against more qualified candidates.
Sweatt v. Union Pac. R.R. Co., No. 14-cv-7891 (N.D. Ill. Jan. 12, 2016) (2016 U.S. Dist. LEXIS 3609; 2016 WL 128036)
Memorandum Opinion and Order
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Summary:
TIMELINESS OF COMPLAINT; DISCRETE ACTS; CLOCK IS NOT RE-SET BY SECOND REQUEST FOR SURGERY THAT WAS PREVIOUSLY DENIED; DISTINCTION FROM ISSUING OF PAYCHECKS DISCUSSED IN AMTRAK v. MORGAN
In Sweatt v. Union Pac. R.R. Co. , No. 14-cv-7891 (N.D. Ill. Jan. 12, 2016) (2016 U.S. Dist. LEXIS 3609; 2016 WL 128036), the District Court granted Defendant’s motion for summary judgment, holding that Plaintiff had not timely filed his complaint. Specifically, the court found that the 180-day limitations period for filing a complaint was triggered by Defendant’s first denial to pay for a surgical procedure, and that Plaintiff could not restart the limitations period by filing a second request for the same surgery.
Plaintiff Ronald Sweatt claimed that Defendant Union Pacific Railroad Company violated the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20106 et seq., by refusing his request that the company pay for surgery to treat his bilateral carpal tunnel syndrome. In a previous case against Defendant, Sweatt had claimed that Union Pacific was liable under the Federal Employer’s Liability Act (FELA) for his development of carpal tunnel syndrome. During a November 2013 deposition in the previous case, Sweatt’s treating physician testified that Sweatt’s carpal tunnel syndrome was a work-related injury. The district court in that case concluded that Sweatt’s FELA claim was time-barred and granted summary judgment to Union Pacific. See Sweatt, 2014 U.S. Dist. LEXIS 76156, 2014 WL 2536807, at *5-*6. The Seventh Circuit affirmed the decision on the same basis. Sweatt v. Union Pac. R. Co. , 796 F.3d 701, 707-08 (7th Cir. 2015).
Following the physician’s November 2013 deposition, Sweatt again requested that Union Pacific approve the surgery. Union Pacific provided no formal response to this request, but the parties agreed that the company consistently maintained its refusal to authorize payment for the proposed surgery. On January 31, 2014, Sweatt filed a complaint with the Occupational Safety and Health Administration (OSHA), claiming that Union Pacific’s refusal to approve payment for the surgery violated the FRSA.
Before the District Court, Union Pacific moved for summary judgment on the basis that Sweatt failed to file a timely administrative complaint. Sweatt responded that the FRSA’s limitations period should not be measured from the day Union Pacific denied his initial request for surgery, but should instead be measured from the day the company denied his subsequent request for the same surgery. Sweatt detailed that the violation alleged in his complaint was Union Pacific’s denial of his subsequent request for surgery in November 2013—not the denial in 2012—and measured from the later denial, his complaint in January 2014 fell well within the limitations period. In support of his arguments, Sweatt contended that the 2013 denial was the sort of “discrete act” of discrimination described in AMTRAK v. Morgan, 536 U.S. 101, 113, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002).
In response, Union Pacific contended that the discrete act triggering the limitations period was its denial of his request in 2012. The company stressed that the 180-day limitations period of § 20109(d)(2)(A)(ii) would be meaningless if Sweatt could reset it simply by requesting the same surgery a second time and again being told “no.”
The court considered Morgan, a Title VII case, and stated that the point of the case was to distinguish discrete acts from “continuing violations.” The court provided examples of discrete acts including “termination, failure to promote, denial of transfer, or refusal to hire,” as well the issuing of individual paychecks that each reflects a policy of discrimination. The court agreed with Union Pacific’s argument that its 2012 denial of Sweatt’s request for surgery triggered the 180-day limitations period, and that the denial of his 2013 request for the same surgery to treat the same injury did not restart it. The court found that the 2013 denial of Sweatt’s second request for the same surgery could not be viewed as a “discrete act” within the meaning of Morgan. Unlike individual paychecks or the other acts discussed in Morgan, the denial of Sweatt’s second request for the same surgery did not injure him afresh. Rather, the second denial changed nothing, and although Sweatt may have been worse off the longer he was without treatment, a “lingering effect of an unlawful act is not itself an unlawful act . . . so it does not revive an already time-barred illegality.”
The court found that Sweatt’s situation was instead analogous to the situation presented in Brown v. Unified School District 501, Topeka Public Schools, 465 F.3d 1184, 1186 (10th Cir. 2006), a Title VII case, where the plaintiff was fired from his position as a physical education teacher and then asked the school district to rehire him. In Brown, the school district informed the Plaintiff unequivocally that it would not consider him for rehire. Plaintiff filed an EEOC charge about this refusal, but he did not file a lawsuit within the 90-day limitations period after receiving his right-to-sue notice. Instead, he again asked the district to rehire him, and the district again refused. He then filed a new EEOC charge and, upon receiving a second right-to-sue notice, filed a lawsuit. The Tenth Circuit held that the plaintiff’s lawsuit was untimely because the evidence showed that district’s most recent refusal was a “mere reiteration” of the earlier refusal.
The court concluded that Union Pacific’s 2013 refusal, like the refusal to rehire at issue in Brown, was a “mere reiteration” of its earlier refusal and must not be treated as a second discrete act. According to the court, accepting Sweatt’s position would render the limitations period of 49 U.S.C. § 20109(d)(2)(A)(ii) a nullity because Sweatt would be able to restart the period as many times as he liked. The court therefore granted Union Pacific’s motion for summary judgment.

Federal Water Pollution Control Act

DeKalb County v. USDOL, No. 14-15435 (11th Cir. Feb. 8, 2016) (2016 U.S. App. LEXIS 2115; 2016 WL 463455) (case below "Abdur-Rahman" ARB Nos. 12-064, -067, ALJ Nos. 2006-WPC-2 and 3)
Denial of Petition for Review
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Summary:
FWPCA CAUSATION STANDARD IS “A” MOTIVATING FACTOR AND NOT “THE” MOTIVATING FACTOR
ARB’S ERROR IN STATING ITS REVIEW OF ALJ’S FINDINGS OF FACT WAS DE NOVO DID NOT WARRANT REMAND WHERE ARB REVERSED ALJ ON LEGAL ANALYSIS AND HAD ACCEPTED THE ALJ’S FINDINGS OF FACT
In DeKalb County v. USDOL, No. 14-15435 (11th Cir. Feb. 8, 2016) (2016 U.S. App. LEXIS 2115; 2016 WL 463455) (case below “Abdur-Rahman” ARB Nos. 12-064, -067, ALJ Nos. 2006-WPC-2 and 3), the Eleventh Circuit denied a petition to review an Administrative Review Board’s (“ARB” or “Board”) decision in a proceeding under the Federal Water Pollution Control Act, 33 U.S.C. § 1367. The petitioner argued that the ARB’s ruling in the case should be vacated, as the ARB had applied de novo rather than substantial-evidence scrutiny to the ALJ’s factual findings. The Eleventh Circuit concluded that, because the ARB reversed the ALJ on matters of law not fact, remanding the case for the agency to review the questions of fact for substantial evidence would not change the result in the case.
Before the ALJ, Daisy Abdur-Rahman and Ryan Petty alleged that they were terminated from their jobs with the DeKalb County in violation of the Federal Water Pollution Control Act. The ALJ dismissed their complaints, finding that Abdur-Rahman and Petty had engaged in activity that the FWPCA protects, but that this activity was not the motivating factor behind the decision to terminate their employment. The ALJ also concluded that the County had shown that it would have terminated Abdur-Rahman and Petty “even had they not engaged in protected activity because managing them was above their supervisor’s [Gudewicz’s] means and they did not fit the peculiar culture [of their workplace].”
On appeal, the ARB reviewed the ALJ’s factual findings and legal conclusions de novo and reversed. In so reversing, the Board accepted the ALJ’s factual findings. The Board, however, identified errors in the ALJ’s legal analysis. Regarding the motivating factor element of the claim, the ALJ had asked whether Abdur-Rahman and Petty had shown that their protected activity was the motivating factor—rather than a motivating factor—in the decision to fire them. The Board found that the protected activity was in fact a motivating factor—not the motivating factor, as the ALJ had incorrectly stated—in the County’s decision to fire them, and that Abdur-Rahman and Petty had shown that their protected activity met the proper causation test. The Board further rejected the ALJ’s legal analysis regarding whether the County had met its burden to show that it would have reached the same decision absent the protected activity. The Board remanded to the ALJ to decide the remedy for the retaliatory terminations. The Board affirmed the ALJ’s post-remand decisions, and the County petitioned for review.
The Eleventh Circuit found that the Board correctly applied de novo review in rejecting the ALJ’s legal analysis. The Eleventh Circuit also found that, while the Board incorrectly described its review of the ALJ’s factual findings as de novo, substantial evidence supported the Board’s review. The Eleventh Circuit considered Stone & Webster II, 684 F.3d at 1133, which was remanded to the agency because the Board “acknowledged that it was bound by the substantial evidence standard” but, in effect, reviewed the ALJ’s factual findings de novo, “show[ing] little deference to the ALJ’s findings with which it disagreed, and . . . disregard[ing] the ALJ’s conclusions supported by substantial evidence in the record.” The Eleventh Circuit stated that in the instant case, in contrast to Stone & Webster II, “the . . . issue is legal, not factual.” The Eleventh Circuit therefore found that the Board’s decision would have been the same had it reviewed the ALJ’s factual findings for substantial evidence rather than de novo. The Eleventh Circuit concluded that remand to the agency in this case was unnecessary because “the agency would reach the same result upon a reconsideration cleansed of errors.”

National Transit Systems Security Act

Duncan v. Wash. Metro. Area Transit Auth., No. 14-cv-224 (D. D.C. Mar. 31, 2016) (2016 U.S. Dist. LEXIS 42926; 2016 WL 1273179)
Memorandum Opinion
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Summary:
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Ndzerre v. Wash. Metro. Area Transit Auth., No. 15-cv-1229 (D. D.C. Mar. 22, 2016) (2016 U.S. Dist. LEXIS 37715; 2016 WL 1225599)
Memorandum Opinion
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Summary:
XXXX

Sarbanes-Oxley Act

Wadler v. Bio-Rad Labs., Inc., No. 15-cv-02356 (N.D. Cal. Dec. 20, 2016) (2016 U.S. Dist. LEXIS 176166; 2016 WL 7369246)
Order Denying Motion to Exclude
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Summary:
Use of attorney-client privileged material by in-house counsel in SOX whistleblower retaliation case.
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Westawski v. Merck & Co., No. 14-cv-3239 (E.D. Pa. Oct. 18, 2016) (2016 U.S. Dist. LEXIS 144234; 2016 WL 6082633)
Opinion
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Summary:
“The Court finds that, on the undisputed facts, no reasonable juror could conclude that a reasonable person in the Plaintiff's position could have believed that the facts known to the Plaintiff amounted to a violation of one of the federal laws or regulations set forth in Section 806. Because the Plaintiff has failed to establish that she engaged in protected activity, she cannot succeed in her Sarbanes-Oxley challenge. As a result, there is no need to determine whether the Plaintiff has met the remaining elements for a prima facie case under Section 806, or whether Defendant has proved by clear and convincing evidence that Plaintiff would have been discharged notwithstanding her complaints. Summary judgment in favor of Defendant shall therefore be granted.”
(slip op. at 28).
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Erhart v. Bofi Holding, No. 15-cv-02287 (S.D. Cal. Sept. 26, 2016) (2016 U.S. Dist. LEXIS 131761; 2016 WL 5369470)
Order Granting in Part and Denying in Part Defendant Bofi Holding, Inc.'s Motion to Dismiss and Motion to Strike
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Summary:
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Nhira v. Thompson Hospitality, No. 14-cv-676 (D. Md. Sept. 8, 2016) (2016 U.S. Dist. LEXIS 121187; 2016 WL 4699414)
Memorandum
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Appeal filed in the 4th Cir., No. 16-2106
Summary:
The district court found that because the Plaintiff never filed an administrative claim with OSHA, the court lacked jurisdiction over his SOX claim. See 18 U.S.C. Â§ 1514A(b)(2)(D); 29 C.F.R. Â§ 1980.103 and 18 U.S.C. Â§ 1514A(b)(1)(B).
Sharkey v. JPMorgan Chase & Co., No. 15-3400 (2d Cir. Sept. 12, 2016) (not precedential)
Summary Order
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Summary:
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Perez v. Progenics Pharms., Inc., No. 10-cv-08278 (S.D.N.Y. Aug. 30, 2016) (2016 U.S. Dist. LEXIS 116411; 2016 WL 4533398) (case below 2009-SOX-00017)
Opinion
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Summary:
XXXX
Beacom v. Oracle America, Inc., 825 F.3d 376 (8th Cir. June 6, 2016) (No. 15-1729) (2016 WL 3144730; 2016 U.S. App. LEXIS 10183) (case below D. Minn. 13-985)
Opinion
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Summary:
PROTECTED ACTIVITY; 8TH CIRCUIT ADOPTS ARB’S SLYVESTER REASONABLE PERSON STANDARD; UNDER THAT STANDARD, HOWEVER, PERSON IN PLAINTIFF’S POSITION WAS FOUND TO HAVE KNOWN THAT A COMPANY’S MISSING REVENUE PROJECTIONS BY MILLIONS OF DOLLARS WAS INSIGNIFICANT TO A COMPANY WITH BILLIONS IN ANNUAL REVENUE, AND THE PLAINTIFF THEREFORE DID NOT REASONABLY BELIEVE THAT THIS WAS FRAUD AGAINST SHAREHOLDERS
In Beacom v. Oracle America, Inc., No. 15-1729 (8th Cir. June 6, 2016) (case below D. Minn. 13-985), the 8th Circuit Court of Appeals joined the 2d, 3d, and 6th Circuits in adopting the ARB’s Sylvester “reasonable person” standard:
   Sarbanes-Oxley requires the employee to hold a reasonable belief that the employer’s conduct amounts to fraud against the shareholders. The reasonable belief standard has both an objective and a subjective component. Rhinehimer, 787 F.3d at 811. The employee must subjectively believe the employer’s conduct violated a law relating to fraud against shareholders, and the employee’s belief must be objectively reasonable. Id.
   The Administrative Review Board (ARB) of the Department of Labor, which adjudicates Sarbanes-Oxley whistleblower claims, first considered the objective component of the “reasonable belief” standard in 2006. Platone v. FLYI, Inc., ARB No. 04-154, 2006 WL 3246910 (ARB Sept. 29, 2006). In Platone, the ARB held that to qualify as protected conduct, the employee’s complaint must (1) “definitively and specifically” relate to one of the categories of fraud or securities violations listed under Sarbanes-Oxley’s whistleblower statute, 18 U.S.C. Â§ 1514A(a)(1); and (2) “approximate . . . the basic elements” of the fraud or securities violation to which the complaint relates. Id. at *8, adopted by Van Asdale v. Int’l Game Tech., 577 F.3d 989, 996-97 (9th Cir. 2009); Welch v. Chao, 536 F.3d 269, 275 (4th Cir. 2008); Allen v. Admin. Review Bd., 514 F.3d 468, 477 (5th Cir. 2008). See also Day v. Staples, Inc., 555 F.3d 42, 54 n.8 (1st Cir. 2009).
   In 2011, however, the ARB rejected the Platone standard. Sylvester v. Parexel Int’l LLC, ARB No. 07-123, 2011 WL 2165854, at *12 (ARB May 25, 2011) (en banc). Instead, the ARB held that to satisfy the objective component of the “reasonable belief” standard, the employee must simply prove that a reasonable person in the same factual circumstances with the same training and experience would believe that the employer violated securities laws. Id. at *11-12 (noting that the Senate Report indicated Congress’s intent to impose “the normal reasonable person standard”). Under the new Sylvester standard, an employee’s mistaken belief may still be objectively reasonable. Id. at *13.
   No court has rejected the Sylvester standard. The Second, Third, and Sixth Circuits have deferred to the Sylvester standard, rejecting Platone’s “definite and specific” standard. Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 220-21 (2d Cir. 2014); Wiest v. Lynch, 710 F.3d 121, 131-32 (3d Cir. 2013); Rhinehimer, 787 F.3d at 806. The Fourth and Tenth Circuits have addressed Sylvester, but found the plaintiff satisfied the more rigorous “definite and specific” standard from Platone. Feldman v. Law Enforcement Assocs. Corp., 752 F.3d 339, 344 n.5 (4th Cir. 2014); Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d 1121, 1132 n.7 (10th Cir. 2013).
   This court, joining the Second, Third, and Sixth Circuits, adopts the Sylvester standard.

Slip op. at 5-7.
The court, however, affirmed the district court’s court grant of summary judgment in favor of the Defendant:
   Under the Sylvester standard, Beacom must establish that a reasonable person in his position, with the same training and experience, would have believed Oracle was committing a securities violation. Rhinehimer, 787 F.3d at 811. This fact-dependent inquiry is typically inappropriate for summary judgment. Id. “[T]he issue of objective reasonableness should be decided as a matter of law only when no reasonable person could have believed that the facts [known to the employee] amounted to a violation or otherwise justified the employee’s belief that illegal conduct was occurring.” Id. (second alteration in original) (internal quotation marks omitted).
   RGBU Americas missed its projections by no more than $10 million. Beacom—an Oracle salesperson and shareholder—would understand the predictive nature of revenue projections. And, he would understand that $10 million is a minor discrepancy to a company that annually generates billions of dollars. These facts compel the conclusion that Beacom’s belief that Oracle was defrauding its investors was objectively unreasonable, even under the less-stringent Sylvester standard.

Slip op. at 7 (footnote omitted).
Fuqua v. SVOX AG, No. 14-cv-00216 (N.D. Ill. May 24, 2016) (2016 WL 2986971; 2016 U.S. Dist. LEXIS 67661) (case below ARB Nos. 14-014, 14-069; ALJ Nos. 2013-SOX-46, 2014-SOX-18)
Order
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Summary:
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Deltek, Inc. v. USDOL, Administrative Review Bd., No. 14â€“2415 (4th Cir. May 20, 2016) (unpublished) (2016 WL 2946570; 2016 U.S. App. LEXIS 9274) (case below ARB Nos. 13-068, -069; ALJ No. 2010-SOX-49)
Unpublished opinion
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Summary:
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Trusz v. UBS Realty, No. No. 09-cv-00268 (D. Conn. Apr. 18, 2016) (2016 U.S. Dist. LEXIS 51427; 2016 WL 1559563)
Amended Rulings on Cross-Motion for Summary Judgment
PDF
Summary:
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Trusz v. UBS Realty, No. No. 09-cv-00268 (D. Conn. Mar. 25, 2016) (2016 U.S. Dist. LEXIS 39239; 2016 WL 1180148)
Rulings on Cross-Motion for Summary Judgment
PDF
Summary:
XXXX
Allstate Ins. Co. v. Zeefe, No. 15-cv-159 (E.D. Ky. Mar. 17, 2016) (2016 U.S. Dist. LEXIS 35381; 2016 WL 1071011)
Memorandum Opinion and Order
PDF
Summary:
XXXX
Kolchinsky v. Moody’s Corp., No. 12-1399 (S.D. N.Y. Feb. 4, 2016) (2016 U.S. Dist. LEXIS 13531)
Memorandum and Order
PDF
Summary:
XXXX
Wiest v. Tyco Electronics Corp., No. 15-2024 (3d Cir. Feb. 2, 2016) (2016 U.S. App. LEXIS 1730; 2016 WL 386088)
Opinion of the Court
PDF
Summary:
CONTRIBUTING FACTOR CAUSATION; COMPLAINANT FOUND TO HAVE FAILED TO IDENTIFY ANY EVIDENCE LINKING PROTECTED ACTIVITY WITH ADVERSE ACTION
In Wiest v. Tyco Electronics Corp. , No. 15-2024 (3d Cir. Feb. 2, 2016) (2016 U.S. App. LEXIS 1730; 2016 WL 386088), the Third Circuit affirmed the District Court’s order granting summary judgment to Defendant Tyco Electronics Corporation (“Tyco”) on appeal by Plaintiff Jeffrey Wiest. The Third Circuit found that Plaintiff Wiest failed to offer any evidence to establish that his protected activity was a contributing factor to any adverse employment action that Tyco took against him.
Wiest asserted his claim for unlawful retaliation under the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, which protects whistleblowing employees from retaliation for providing information, either directly or indirectly, about certain types of expressly enumerated illegal activities. Wiest contended that Tyco unlawfully terminated his employment for reporting suspected securities fraud violations pertaining to the accounting treatment of two Tyco events. Specifically, Wiest claimed that he engaged in a six-month “anguished field battle” during which he frustrated Tyco’s management with his refusals as an accountant to process payments allegedly due from Tyco that related to two Tyco employee and dealer meetings in resort settings.
Tyco contended that Wiest’s involvement with the specific events at issue was minimal and he did not frustrate, or even inconvenience, anyone in Tyco’s management by his conduct. Tyco asserted that more than eight months after he engaged in the alleged protected activity, Tyco’s human resources director—who had no involvement with, or knowledge of, Wiest’s protected activity—conducted an investigation after she received multiple complaints that Wiest made inappropriate sexual comments to several female Tyco employees, and that he had inappropriate sexual relationships with two subordinates during his employment. Tyco argued that the findings from this investigation caused it to take employment actions with respect to Wiest unrelated to the accounting issues he had raised.
Tyco based its motion for summary judgment on the assertion that Wiest had not identified any evidence in the record from which a jury could conclude that Wiest’s protected activity was a contributing factor to any adverse action that it may have taken against him. Alternatively, Tyco argued that it would have taken the same action even in the absence of the protected activity.
The court agreed that Wiest had not identified any record evidence to establish causation, and affirmed the District Court’s order granting summary judgment to defendant Tyco. The court further found that the record was devoid of any evidence that Wiest’s conduct frustrated management personnel or that, even if he frustrated management personnel, any such individual was involved in the investigation and an ultimate recommendation to terminate his employment. Moreover, even if Wiest could have satisfied those threshold requirements, the court found that Tyco demonstrated that it would have taken the same actions with respect to Wiest in the absence of Wiest’s accounting activity given the thorough, and thoroughly documented, investigation conducted by its human resources director. Because there were no genuine issues of material fact with respect to Wiest’s anti-retaliation claim under the Sarbanes-Oxley Act, the court affirmed the District Court’s grant of summary judgment.

Surface Transportation Assistance Act

In re Altegrity, Inc., No. 15-10226 (Bankr. D. Del. Nov. 28, 2016) (2016 Bankr. LEXIS 4096) (related to Barr v. HireRight Solutions, Inc., 2014-STA-00022)
Memorandum
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Summary:
Bankruptcy court denied a STAA complainant's motion for relief from a bankruptcy discharge injunction with respect to his STAA claim in Barr v. HireRight Solutions, Inc., 2014-STA-00022.
Smith v. Perez, Nos. 13-4342 and 15-3071 (6th Cir. Aug. 25, 2016) (2016 U.S. App. LEXIS 15870; 2016 WL 4473239) (unpublished) (case below ARB No. 14-063, ALJ No. 2006-STA-32)
[Denial of petition for review]
PDF
Summary:
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TransAm Trucking, Inc. v. Admin. Review Bd., USDOL, No. 15-9504 (10th Cir. Aug. 8, 2016) (published on motion of the ARB) (2016 WL 4183865) (case below ARB No. 13-031, ALJ No. 2010-STA-20 (Maddin))
Order and Judgment
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Summary:
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TransAm Trucking, Inc. v. Admin. Review Bd., No. 15-9504 (10th Cir. July 15, 2016) (unpublished) (2016 U.S. App. LEXIS 13071) (case below ARB No. 13-031, ALJ No. 2010-STA-20 (Maddin))
Order and Judgment
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Summary:
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Yusim v. DOL, No. 14-15087 (11th Cir. Mar. 16, 2016) (per curiam) (2016 U.S. App. LEXIS 4798; 2016 WL 1039556) (unpublished) (case below ARB No. 14-007, ALJ No. 2010-STA-00066)
Memorandum Decision and Order
PDF
Summary:
DOL IS NOT OBLIGATED TO INTERVENE ON BEHALF OF A COMPLAINANT IN A PROCEEDING CONCERNING THE RESPONDENT’S BANKRUPTCY
COURT DISMISSES PETITION FOR REVIEW OF ARB’S DISMISSAL OF STAA COMPLAINT BASED ON RESPONDENT’S BANKRUPTCY
In Yusim v. DOL, No. 14-15087 (11th Cir. Mar. 16, 2016) (per curiam) (2016 U.S. App. LEXIS 4798; 2016 WL 1039556) (unpublished) (case below ARB No. 14-007, ALJ No. 2010-STA-00066), the Eleventh Circuit dismissed Yusim’s petition for review to the extent that he was challenging the Department of Labor’s refusal to intervene on his behalf to withdraw the reference of his STAA claim from a bankruptcy court. The court found that Yusim had not shown that the agency was required to intervene on his behalf. The court dismissed Yusim’s petition for review challenging the ARB’s dismissal of his STAA complaint due to the Respondent’s bankruptcy. The Court wrote:
The ARB’s legal conclusion that Yusim’s complaint should be dismissed was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. The ARB could not provide any of the relief authorized under § 31105(b)(3) once Midnight Sun was no longer operating as a business and had no assets from which damages could be paid. Indeed, Midnight Sun was not an employer under the STAA at the time of the ARB’s decision because it did not operate a business that owned or leased a commercial motor vehicle. Yusim argues that the ARB could have granted him relief by declaring that he accurately reported his hours, but the STAA does not state that the Department of Labor can provide such declaratory relief.
Slip op. at 5.