USDOL/OALJ: Miscellaneous Cases Whistleblower Digest

MISCELLANEOUS CASES
WHISTLEBLOWER DIGEST

[Last Updated Feb. 13, 2013]

CONTENTS

AFFORDABLE CARE ACT

CONSUMER PRODUCTS SAFETY IMPROVEMENT ACT

FAIR LABOR STANDARDS ACT

FEDERAL RAILROAD SAFETY ACT

NATIONAL TRANSIT SYSTEMS SECURITY ACT

PIPELINE SAFETY IMPROVEMENT ACT

IMMIGRATION - H-1B WORKERS

E-DISCOVERY

TITLE VII

ATTORNEY DISCIPLINARY PROCEEDINGS

AFFORDABLE CARE ACT

PROTECTED ACTIVITY UNDER ACA; THE TERM "TITLE I" IN SECTION 218C REFERS TO TITLE I OF ACA, NOT TITLE I OF THE FAIR LABOR STANDARDS ACT (FLSA), AND THEREFORE COMPLAINTS ALLEGING RETALIATION FOR REPORTING VIOLATIONS OF FLSA ARE NOT PROTECTED UNDER SECTION 218C.

In Rosenfield v. GlobalTranz Enterprises, Inc., No. CV 11–02327–PHX–NVW, 2012 WL 2572984 (D.Ariz. July 2, 2012), the plaintiff, a human resources manager, alleged that she was terminated in retaliation for reporting perceived violations of the Fair Labor Standards Act ("FLSA") to her supervisors. She filed a complaint under 29 U.S.C. § 218c ("ACA"), which was created by the Patient Protection and Affordable Care Act of 2010 ("ACA"). The court concluded that Section 218c did not create a cause of action for individuals that claim retaliation based complaints about violations of the FLSA. The plaintiff argued that the word "title" in Section 218c(5) – which protects individuals that object or refuse to participate in any activity reasonably believed to be a violation of "any provision of this title (or amendment), or any order, rule, regulation, standard, or ban under this title (or amendment) – refers to Title 29 of the United States Code, and thus protects individuals from retaliation for objections about FLSA violations. The court agreed with the defendant, however, that "title" refers to Title I of ACA. Consequently, the court dismissed the plaintiff's complaint.

PETITION FOR REVIEW OF AFFORDABLE CARE ACT ALJ DECISION WHERE PROCEDURAL REGULATIONS NOT YET PROMULGATED; WHERE NO PARTY FORMALLY PETITIONS FOR ARB REVIEW, ALJ'S DECISION BECOMES FINAL DECISION OF THE DEPARTMENT OF LABOR

In Blake v. Mast Drug Co., Inc., ARB No. 13-020, ALJ No. 2012-ACA-2 (ARB Dec. 17, 2012), the ALJ referred the case to the ARB for possible review because regulations governing the procedure for review of an ALJ decision under the employee protection provisions of the Affordable Care Act had not yet been promulgated. The ARB directed the parties to file a petition for review if such review was sought. When neither party filed a petition, the ARB closed the case noting that the ALJ's decision would be the final order for the Department of Labor in the case.

CONSUMER PRODUCTS SAFETY IMPROVEMENT ACT

PROTECTED ACTIVITY; COVERAGE UNDER CPSIA IS NOT LIMITED TO "CONSUMER PRODUCTS" AND IS NOT LIMITED TO MATTERS STRICTLY UNDER THE JURISDICTION OF THE CONSUMER PRODUCTS SAFETY COMISSION

In Saporito v. Publix Super Markets, Inc., ARB No. 10-073, ALJ No. 2010-CPS-1 (ARB Mar. 28, 2012), the Respondent was a supermarket chain that operated a dairy plant at which the Complainant was employed as a maintenance technician. The Complainant complained to supervisors that the outside contact surfaces of plastic milk bottles, and the containers used to carry the plastic milk bottles, were being contaminated with harmful chemicals and waste from the conveyor system and failure to maintain proper pressurization of the milk filling room. The Complainant filed a whistleblower complaint under the Consumer Product Safety Improvement Act of 2008 (CPSIA or Act), 15 U.S.C.A. § 2087, alleging a hostile work environment. Later, when fired, the Complainant amended his complaint alleging that the discharge was due to protected activity.

After issuing a order to show cause requiring the Complainant to establish that (1) his complaints related to "covered consumer products" and (2) each named Respondents is a "manufacturer, distributer, retailer, or labeler of consumer products," the ALJ dismissed the complaint based on failure to state a claim upon which relief may be granted.

CPSIA's coverage is not limited to regulation of "consumer products"

The ARB found that the ALJ erred in requiring the Complainant to show that his complaints were related to "consumer products" as defined by the Act. The ARB wrote:

For proper context, it is important to recognize the expressed purposes of the Consumer Product Safety Improvement Act, which contains the whistleblower provision relevant to this case. Pursuant to the Consumer Product Safety Act (CPSA), 15 U.S.C.A. §§ 2051 (Thomson Reuters/West 2009), as amended by the CPSIA, Congress found that "an unacceptable number of consumer products which present unreasonable risks of injury are distributed in commerce" and that "the public should be protected from theses unreasonable risks." 15 U.S.C.A. §§ 2051(a)(1), (2). Logically, then, one of the CPSA's expressed "purposes" is to "protect the public against unreasonable risks of injury associated with consumer products." 15 U.S.C.A. §§ 2051(b). The statute and regulations generally define the term "consumer product" to include any article or portion of an article sold to consumers for the use or personal use, consumption, or enjoyment in a household, residence, or school. 15 U.S.C.A. §§ 2052(a)(5). The CPSIA expressly excludes "food" from the definition of "consumer product," as "food" is defined under the Federal Food, Drug, and Cosmetics Act (FFDCA) at 21 U.S.C.A. §§ 321(f) (Thomson Reuters/West 2009).
The CPSA established a Consumer Product Safety Commission (the Commission) in furtherance of these goals. The CPSA, as amended by the CPSIA, empowers the Commission to enforce the CPSA and the CPSIA, along with any other federal act Congress has added to the Commission's oversight authority, resulting in a labyrinth of enforcement power. For instance, the Commission also enforces the Federal Hazardous Substances Act (FHSA), 15 U.S.C.A. §§ 1261 et seq. (Thomson Reuters/West 2009), and the Poison Prevention Packaging Act (PPPA), 15 U.S.C.A. §§ 1471 et seq. (Thomson Reuters/West 2009). Under the PPPA, the Commission regulates packaging of "household substance[s]" which can include "food" as defined under the FFDCA at 21 U.S.C.A. §§ 321(f). Under the FHSA, the Commission regulates "hazardous substances," a term not restricted to "consumer products" and which includes household substances that expose children to a hazardous quantity of lead (e.g., candy wrappers). Clearly, the Commission's power extends beyond the regulation of "consumer products."

USDOL/OALJ Reporter at 4-5 (footnotes omitted).

CPSC's jurisdiction; reasonable belief

The ARB found that the ALJ also committed legal error in basing his dismissal on a finding that none of the Complainant's complaints fell within the Consumer Product Safety Commission's jurisdiction. The ARB wrote:

The ALJ erred in focusing strictly on the limit of the Commission's jurisdiction. The ALJ plausibly reasoned that if the Commission did not have jurisdiction at the time of Saporito's disclosure, then Saporito's disclosure or complaint was not protected activity under the CPSIA whistleblower provision. But limiting CPSIA-protected activity coverage entirely to the CPSC's jurisdiction leaves out a critical part of the CPSIA definition of protected activity: reasonable belief.
The CPSIA broadly defines protected disclosures to include disclosures "relating" to employer conduct that the employee "reasonably believes to be a violation of any provision of [the CPSIA] or any Act enforced by the Commission . . . ." 15 U.S.C.A. §§ 2087(a)(1) (emphasis added). The CPSIA's plain language allows the complainant to be wrong as long as he held a reasonable belief of a violation of the Act or other act enforced by the Commission. The Act does not define "reasonable belief." Historically, the ARB has interpreted the concept of "reasonable belief" to require both a subjectively and objectively reasonable belief. A subjectively reasonable belief means that the employee actually believed that the conduct he complained of constituted a violation of relevant law. See, e.g., Harp v. Charter Commc'ns, 558 F.3d 722, 723 (7th Cir. 2009) (not a CPSIA case). An objectively reasonable belief means that a reasonable person would have held the same belief having the same information, knowledge, training, and experience as the complainant. Harp, 558 F.3d at 723. Often the issue of "objective reasonableness" involves factual issues and cannot be decided in the absence of an adjudicatory hearing. See, e.g., Allen v. Admin. Review Bd., 514 F.3d 468, 477-478 (5th Cir. 2008) ("the objective reasonableness of an employee's belief cannot be decided as a matter of law if there is a genuine issue of material fact"). Nowhere did the ALJ address the issue of reasonable belief in resolving his Order to Show Cause.

USDOL/OALJ Reporter at 6-7 (footnotes omitted).

DISMISSAL GROUNDED IN ALJ'S SUA SPONTE ORDER TO SHOW CAUSE RATHER THAN MOTION FILED BY RESPONDENT; DUE PROCESS AND ADEQUACY OF NOTICE OF ULTIMATE GROUND FOR DISMISSAL

PROTECTED ACTIVITY; CPSIA ONLY REQUIRES THAT THE COMPLAINANT HAD A REASONABLE BELIEF OF VIOLATION, AND DOES NOT REQUIRE A REASONABLE BELIEF OF HARM

In Saporito v. Publix Super Markets, Inc., ARB No. 10-073, ALJ No. 2010-CPS-1 (ARB Mar. 28, 2012), the Respondent was a supermarket chain that operated a dairy plant. The Complainant, a maintenance technician, complained to supervisors that the outside contact surfaces of plastic milk bottles, and the containers used to carry the plastic milk bottles, were being contaminated with harmful chemicals and waste from the conveyor system and failure to maintain proper pressurization of the milk filling room. The Complainant filed a whistleblower complaint under the Consumer Product Safety Improvement Act of 2008 (CPSIA or Act), 15 U.S.C.A. § 2087. OSHA dismissed on the ground that food safety complaints were not covered under the CPSIA.

Upon the Complainant request for a hearing, the presiding ALJ issued an order to show cause requiring the Complainant to establish that (1) his complaints related to "covered consumer products" and (2) each named Respondents is a "manufacturer, distributer, retailer, or labeler of consumer products." Nothing further was required by the ALJ's order. The ALJ dismissed the complaint based on failure to state a claim upon which relief may be granted. The ARB found that the matter must be remanded because the ALJ erred in concluding that CPSIA coverage was limited to "consumer products," but went on to address other errors.

In part, the ALJ's dismissal was based on his finding that the Complainant's complaints were not protected because they were speculative. The Complainant had only alleged that milk containers "could" be contaminated and "could" reach and "possibly" or "would" injure consumers.

The ARB found that the order to show cause had given no indication that the ALJ would consider whether the complaints were too speculative to constitute protected activity, and therefore as a matter of due process dismissal on this ground could not be affirmed, and the matter needed to be remanded for further proceedings.

The ARB recognized that the ALJ in order to avoid being an advocate for the Respondent, could not elaborate too much in an order to show cause, and observed that the "need for caution makes orders to show cause less effective than a party's motion for summary decision, where the party can fully and fiercely advocate and flesh out the grounds for dismissal." USDOL/OALJ Reporter at n.28. The ALJ's caution, however, did not alleviate the due process concerns where the order to show cause gave no indication that the issue would be considered.

The ARB also noted that the ALJ's ruling conflated the Complainant's speculation as to potential harm with speculation as to a violation, and observed that the CPSIA requires reasonable belief of a violation and does not expressly require reasonable belief of harm.

FAIR LABOR STANDARDS ACT

PROTECTED ACTIVITY & CAUSAL CONNECTION UNDER FLSA

In Wolinsky v. Standard Oil of Connecticut, Inc., No. 3:08cv832 (D. Conn. May 5, 2010), a former employee brought an action in state court against his former employer and supervisor, alleging that he was retaliated against for engaging in activity protected by the Fair Labor Standards Act (FLSA). The defendants removed action to federal District Court and moved for summary judgment. The District Court held that: (1) temporal proximity of one day between employee's complaints to state and federal labor departments and adverse employment action was sufficient to establish causal connection required for prima facie FLSA retaliation claim; and (2) there was a genuine issue of material fact precluding summary judgment on the FLSA retaliation claim.

FEDERAL RAILROAD SAFETY ACT

MOTION TO DISMISS INDIVIDUAL DEFENDANT; EXHAUSTION OF ADMINISTRATIVE REMEDIES; WHETHER MANAGER WAS SUFFICIENTLY NAMED AS RESPONDENT IN ADMINISTRATIVE COMPLAINT FILED WITH OSHA

MOTION TO DISMISS INDIVIDUAL DEFENDANT; WHETHER FEDERAL COURT COMPLAINT MET FRCP 8 PLEADING REQUIREMENTS

In Windom v. Norfolk Southern Railway Co., No. 12-cv-345 (M.D.Ga. Feb. 1, 2013), the court denied a motion to dismiss filed by the defendant Norfolk’s Manager of Administrative Services (“manager”), who had been also named as a defendant by the plaintiff. The plaintiff was a welder who contended that Norfolk and the manager had acted together to violate the Federal Rail Safety Act when the plaintiff reported an injury. The manager first argued that the FRSA claim should be dismissed because the plaintiff did not name her as a respondent in the administrative complaint filed with OSHA, and therefore the plaintiff did not exhaust his administrative remedies against her and she should be dismissed from the federal district court action.

The plaintiff had named the Norfolk as the establishment and the manager as the management official in the heading of his complaint, and the court agreed with the plaintiff that is was sufficiently clear that the plaintiff intended his OSHA complaint to be directed at both Norfolk and the manager. The court noted that there was no other location on the OSHA complaint form for the plaintiff to have named the manager and that the manager had been clearly listed in the heading of the complaint. Although the manager was not specifically mentioned in the body of the complaint, the complaint statef that Norfolk, through its management official, engaged in improper conduct. Moreover, the specific acts described in the complaint form were acts of the manager, and had OSHA investigated, it would have been apparent to OSHA that the plaintiff was complaining of the manager’s actions. The court did not find dispositive OSHA’s alleged failure to send a copy of the complaint to the manager. More than 210 days had passed with no decision from OSHA before the plaintiff filed in district court, and the court found that the plaintiff had exhausted his administrative remedies against the manager.

The manager also argued that the FRSA action should be dismissed because the paragraphs in the complaint in which her name was mentioned alleged wrongdoing by Norfolk, and as such did not permit the court to infer more than a mere possibility of misconduct by her. The plaintiff pointed to several specific allegations in the complaint regarding the manager’s actions, and argued that they were not general or legal conclusions but specific factual allegations supporting his FRSA claim against the manager.

The court, noting that at this stage of the proceeding the pleadings are construed broadly and the allegations in the complaint are viewed in the light most favorable to the plaintiff, found that the plaintiff had satisfied FRCP 8’s pleading requirements. The court summarized the complaint, noting inter alia, that the plaintiff’s whistleblower claim was based on allegedly unlawful retaliation for reporting an on-the-job injury; that the plaintiff contended that that reporting his injury and seeking medical treatment are both activities protected by the FRSA; that the plaintiff contended that Norfolk knew about the injury and the report of injury; that the plaintiff contended that Norfolk planned to punish him at least partly because of his injury report; and that the plaintiff contended that the defendants acted together to violate the FRSA because he reported this injury.

PRELIMINARY ORDER OF REINSTATEMENT BY OSHA UNDER THE FRSA; JUDICIAL ENFORCEMENT IS NOT AVAILABLE

In Solis v. Union Pacific Railroad Co., No. 4:12-cv-00394 (D.Idaho Jan. 11, 2013) (related to 2012-FRS-15), the Secretary of Labor sought enforcement of a preliminary reinstatement order issued by OSHA under the whistleblower provision of the Federal Railroad Safety Act, 49 U.S.C. § 20109. The district court found it had jurisdiction to enforce final orders of the Secretary of Labor, but not a preliminary order of reinstatement issued by OSHA. The court noted a spilt in the few courts that had addressed the about the issue,that the Ninth Circuit had not yet addressed the issue, and that the only circuit authority on the issue was a spilt decision. Bechtel v. Competitive Technologies, Inc., 448 F.3d 469 (2d Cir. 2006). The court found that "the fact that a preliminary order can prescribe the same relief as a final order does not mean Congress intended for federal courts to review preliminary orders." The court was not persuaded by the Secretary argument that because AIR21 (which is used for FRSA whistleblower procedure) provides that objecting to a preliminary order will not stay any reinstatement remedy in that order, and therefore there must be an enforcement mechanism. The court noted that a preliminary order issued by OSHA is based only on reasonable cause to believe a complaint has merit, which the court found was too tenative for present enforcement. The court was also not persuaded by the Secretary's alternative argument that the FRSA itself provides the necessary jurisdiction because the FRSA whistleblower provision specifically incorporates the procedures of AIR21 for preliminary orders, and because the appeals paragraph of the FRSA whistleblower provision also incorporates AIR21, which limits appeals to a final order of the Secretary.

DISTRICT COURT REVIEW NOT AVAILABLE CONCERNING NON-FINAL ORDER OF ADMINISTRATIVE REVIEW BOARD RULING THAT § 20109(f) OF THE FRSA DOES NOT PRECLUDE AN EMPLOYEE WHO CHALLENGED HIS TERMINATION IN AN RLA § 3 ARBITRATION FROM FILING A FRSA WHISTLEBLOWER CLAIM

In Norfolk Southern Railway Co. v. Solis, No. 12-00306 (D.D.C. Jan. 3, 2013) (case below ARB No. 09-101, ALJ No. 2008-FRS-3), Larry L. Koger filed a FRSA employee protection complaint. The ALJ held that 49 U.S.C. § 20109(f) barred the complaint because the Complainant elected to challenge his dismissal by pursuing the grievance and arbitration procedures under RLA § 3, 45 U.S.C. § 153. Koger v. Norfolk Southern Ry., ALJ No. 2008-FRS-3 (May 29, 2009). On administrative appeal, the ARB consolidated Koger’s appeal with an appeal in another case, Mercier v. Union Pacific R.R., ALJ No. 2008-FRS-4 (June 3, 2009), where a different ALJ determined that § 20109(f) did not preclude an employee who had challenged his termination in RLA § 3 arbitration from filing a whistleblower claim under FRSA. The ARB agreed with the decision of the ALJ in Mercier, and ruled that, as a matter of law, an employee’s pursuit of RLA arbitration does not constitute an election of remedies under 49 U.S.C. § 20109(f). The ARB remanded both Mercier and Koger for further proceedings.

The Respondent in Koger’s administrative proceeding, Norfolk Southern Railway Co. (the “Plaintiff”), filed an action in federal district court claiming that the district court could review the ARB’s non-final decision under the doctrine of Leedom v. Kyne, 358 U.S. 184 (1958), arguing that the decision was in excess of the Secretary’s delegated powers, and that the Plaintiff would have no other meaningful and adequate means to vindicate its statutory right. The Secretary moved to dismiss arguing that the district court lacked subject-matter jurisdiction because 49 U.S.C. § 20109(d)(4) places review of final decisions by the ARB in the appellate court.

The district court noted that the exception under the Leedom doctrine is extremely narrow – essentially a “Hail Mary” pass. The doctrine has two predicates: (1) the party must demonstrate that the agency disobeyed a statutory provision that is “clear and mandatory”; (2) the party must show that, without the district court’s exercise of jurisdiction, it lacks any meaningful and adequate means of vindicating its statutory rights. In regard to the first predicate, the court reviewed the Plaintiff’s arguments as to why the ARB’s decision was allegedly in error, and found that the Plaintiff’s argument was flawed in several respects, whereas the ARB’s reading was supported by statutory history. The court found that it was not necessary to determine, for the purposes of the jurisdictional question, whether the ARB’s ruling was correct, but only that it was colorable under the statute and not in violation of a clear, mandatory directive within the statute. Accordingly, the court found that the Leedom doctrine did not apply. In regard to the second predicate, the district determined that it could not be said that the practical effect of making the Plaintiff go through with the FRSA investigation would somehow foreclose all access to the courts.

PROTECTED ACTIVITY UNDER FRSA; PLAINITFF ADDUCED SUFFICIENT EVIDENCE THAT HE REPORTED A WORK-RELATED INJURY TO HIS EMPLOYER AND COOPERATED WITH A SUBSEQUENT INVESTIGATION TO AVOID SUMMARY DECISION

In Infermo v. New Jersey Transit Rail Operations, Inc., CA No. 10–2498, 2012 WL 209359 (D.N.J. Jan. 24, 2012) (unpublished), the plaintiff, a signal maintainer, slipped and broke his leg while walking along a slippery path to reach a signal case. The employer investigated the injury, and ultimately determined that the injured plaintiff had not been "aware of his surroundings and was not alert to the walking conditions," and therefore he violated two of the company's safety rules. The employer held a disciplinary hearing after the plaintiff had recovered from his injuries and returned to work, and as a result, the employer affirmed the investigation's finding and disciplined the plaintiff with a five-day deferred suspension and mandatory safety counseling. The plaintiff filed an OSHA complaint claiming unlawful retaliation under the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109, and after waiting the requisite number of days without a decision from the Secretary of Labor, he filed suit in federal district court.

The district court denied the defendant's motion for summary judgment, rejecting the employer's argument that the plaintiff failed to allege that he engaged in protected activity under FRSA because he merely fell and injured himself. Rather, the court found that the plaintiff offered sufficient proof that he reported his work-related injury to his employer and supplied the employer's investigators with information regarding the accident and possibly unsafe working conditions, which implicate the categories of protected activity listed in 49 U.S.C. § 20109(a)(1) & (4). Additionally, the court found that the plaintiff had adduced sufficient evidence suggesting a connection between his reporting of his injury and his subsequent suspension to avert summary judgment.

CONTRIBUTING FACTOR ANALYSIS UNDER FRSA; COURT GRANTED SUMMARY JUDGMENT WHERE THE PLAINTIFF ADDUCED INSUFFICIENT EVIDENCE THAT HIS REPORTING OF AN INJURY CONTIRBUTED TO THE DECISION TO DISCIPLINE HIM FOR VIOLATION OF WORKPLACE SAFETY RULES; TEMPORAL PROXIMITY BETWEEN REPORT AND DISCIPLINE WAS NOT SUGGESTIVE OF A CAUSAL RELATIONSIP BECAUSE THE EMPLOYEE'S UNION'S COLLECTIVE BARGAINING AGREEMENT REQUIRED THE EMPLOYER TO INITIATE RULE VIOLATION DISCIPLINARY PROCEEDINGS WITHIN TEN DAYS OF A WORKPLACE INCIDENT.

In Araujo v. New Jersey Transit Rail Operations, Inc., CA No. 10–3985, 2012 WL 1044619 (D.N.J. Mar. 28, 2012) (unpublished) (case below ALJ No. 2010-FRS-23), the plaintiff was a conductor-flagman for a railroad, and his primary responsibility was "to protect the construction crew members from the movement of trains in the course of using the high rail vehicle." Araujo at *1. Due to miscommunication with two linemen that were assigned to de-energize the overhead wires prior to the day's construction project, a member of the crew came into contact with the live wires and suffered a fatal injury. The plaintiff immediately called 911 and also reported the accident to the dispatcher. The defendant and the Federal Rail Administration ("FRA") investigated the accident, and while they found the two lineman that failed to de-energize the wires primarily responsible for the accident, they also found the plaintiff to be partially at-fault, and suspended him for violating several workplace safety rules. As a result of the incident, the plaintiff sought counseling under the defendant's counseling program, and was found to be unfit to return to work. The defendant initially continued paying his salary while on medical leave, BUT even after he received medical clearance to resume working, the defendant held plaintiff out of service. The plaintiff filed a retaliation complaint under 49 U.S.C. § 20109(a)(4), alleging that the defendant disciplined him in retaliation for reporting the deceased crew member's injury, and for reporting his own mental injury to the defendant's medical department. In response, the defendant filed a motion for summary judgment arguing that the plaintiff could not prove that his protected activity was a contributing factor to his discipline.

In granting the defendant's motion, the court dismissed the plaintiff's argument that the temporal proximity between his protected activity and the defendant filing disciplinary charges against him evidenced a causal relationship because the company was required under its collective bargaining agreement with the plaintiff's labor union to initiate rule violation charges within ten days of the incident. In light of the collective bargaining agreement's constraints, the court found "the temporal proximity in this case is not indicative, much less ‘unusually suggestive' of a causal relationship between the injury reports and the date the charges were filed." Araujo at *7. Equally unpersuasive was the plaintiff's argument that the defendant's decision not to test the plaintiff for drug abuse after the incident constitutes an admission that the plaintiff did not contribute to the incident. The plaintiff also argued that he was disparately punished for his violating safety rules by relying on his lineman's word that they had de-energized the overhead wires, because it was routine for conductor-flagmen to do so in practice. However, the court found that he failed to complete this disparate treatment argument because he failed to point "to a single conductor-flagman, or any other NJT employee, who committed an infraction of the electrical safety rules in connection with an incident involving a fatality yet faced no disciplinary action." Id. at *8. Not only did the court find that the plaintiff had failed to raise a question of fact as to causation, but it also found that the defendant proved that "it would have pursued charges and imposed discipline on Araujo regardless of whether he made his FRSA-protected injury reports." Id. at *9.

RELEASE OF FELA CLAIM AS A BAR TO A FRSA WHISTLEBLOWER CLAIM; EXAMINATION OF INTENT OF PARTIES

In Tagliatela v. Metro-North Commuter R. Co., 2012 WL 5493618 (D.Conn. Nov. 13, 2012) (case below ALJ No. 2009-FRS-13), the Plaintiff brought an action under the Federal Rail Safety Act ("FRSA") in connection with the Defendant's discipline of the Plaintiff for allegedly violating the Defendant's policy requiring employees to immediately report a workplace injury and for failing to appear for a medical evaluation at the Defendant's Occupation Health Services facility. The Plaintiff had injured his knee, but did not report it immediately. The Defendant moved for summary judgment on the ground that a release signed by the Plaintiff in settlement of his FELA claim barred the FRSA claim.

Applying state contract law focusing on the intent of the parties, the court held that the release did not bar the Plaintiff's FRSA claim. The Plaintiff had released all claims that "arise from or out of injuries and damages known or unknown, permanent or otherwise, sustained or received" by the Plaintiff in regard to his knee injury. The court found that this language from the release could not be interpreted to mean that the Plaintiff's FRSA claim arose from the injury he sustained when he twisted his knee. Rather, his FRSA claim can be interpreted as having arisen from his protected activity of reporting a workplace injury and not the injury itself. The court also found that the Defendant was well aware of the FRSA claim at the time of the settlement of the FELA claim, and that had it wished to negotiate a global settlement it would have negotiated to explicitly include the known FRSA claim in that release. The court distinguished the ALJ's decision in Davies v. Florida East Coast Railway, LLC, 2010-FRS-7 (June 3, 2010), because in that case the release explicitly mentioned whistleblower claims. The court did not reach the issue of whether OSHA's approval of the release was required for it to be effective as a bar to the FRSA claim.

FRSA COMPLAINT; DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT WHERE THE PLAINTIFF' SUPERVISOR SUGGESTED IN DEPOSITION TESTIMONY THAT HE WOULD NOT HAVE DISCIPLINED THE PLAINTIFF FOR A SAFETY RULE VIOLATION ABSENT AN INJURY, BUT CLARIFIED IN A SUBSEQUENT DECLARATION THAT HE WAS UNSURE IF HE WOULD HAVE REACTED DIFFERENTLY IF THE PLAINTIFF DID NOT INJURE HIMSELF

In Cook v. Union Pacific R. Co., No. 10–6339–TC, 2011 WL 5842795 (D.Or. Nov. 18, 2011), after "deadheading" home on an Amtrak train at the end of a day's work at another Union Pacific yard, the plaintiff, a locomotive engineer for Union Pacific for over 20 years, discovered that he did not have a ride from the Amtrak station to his home train yard, although he had called ahead to arrange one in accordance with the company's common practice. After waiting forty-five minutes and unsuccessfully attempting to phone the company clerk that previously promised to arrange his transportation, the plaintiff decided to walk the two-and-a-half miles from the Amtrak station to the train yard whilst carrying approximately fifty pounds of luggage and safety gear. Upon arrival at the yard, the plaintiff realized he had had injured his back over course of the walk, and in accordance with company policy, he immediately reported his injury to his union representative, who alerted his supervisor in turn.

The defendant launched disciplinary proceedings against the plaintiff, and after a two day disciplinary hearing, the plaintiff was fired for violating company Rule 1.6, which "prohibits employees from being careless of the safety of themselves or others or being negligent." Cook at *2. The plaintiff filed a whistleblower complaint with OSHA under the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109, and after sufficient time expired without an OSHA decision, filed the instant suit in federal district court. Meanwhile, the Public Law Board ruled upon the plaintiff's appeal of his termination via his union's collective bargaining agreement with the defendant, finding that the plaintiff improperly left his job to walk to the yard without authority, but nonetheless reinstate the plaintiff without back pay.

The plaintiff filed a motion for summary judgment, claiming that the defendant admitted that it violated FRSA when the plaintiff's supervisor, in his deposition testimony, suggested that the plaintiff would not have violated Rule 1.6 if he had reached the yard without suffering an injury. However, the plaintiff's supervisor subsequently filed a declaration clarifying that he is unsure what he would have done if the plaintiff had survived the walk unscathed, and therefore the Court found it unable to rule for the plaintiff as a matter of law, and denied the motion for summary judgment.

ADVERSE ACTION UNDER FRSA INCLUDES THREATENED DISCIPLINE

CAUSATION UNDER FRSA; BOARD REJECTS AS TOO CLEVER THE RESPONDENT'S ARGUMENT THAT IT INITIATED A DISCIPLINARY INVESTIGATION ONLY BECAUSE THE COMPLAINANT ALLEGEDLY SAT ON A CHAIR WITHOUT FIRST INSPECTING ITS SAFETY, RATHER THAT BECAUSE THE COMPLAINANT REPORTED AN INJURY

In Vernace v. Port Authority Trans-Hudson Corp., ARB No. 12-003, ALJ No. 2010-FRS-18 (ARB Dec. 21, 2012), the ARB summarily affirmed the ALJ's finding that the Respondent unlawfully discriminated against the Complainant in violation of the employee protection provisions of the Federal Rail Safety Act when the Complainant filed an injury report. On appeal, the Respondent argued that it had taken no disciplinary action against the Complainant. The Respondent had sent a charging letter to the Complainant stating that she had failed to exercise constant care and utilize safe work practices to prevent injury to herself when she failed to inspect a chair before sitting on it.

In the ALJ's decision, she found that the evidence of record showed that charge letters are the first step in a disciplinary process that has the potential to culiminate in varying levels of discipline, and which are likely to have a chilling effect on employees regarding the filing of injury reports. Vernace v. Port Authority Trans-Hudson Corp., ALJ No. 2010-FRS-18 (ALJ Sept. 23, 2011), slip op. at 24-27. The ALJ found that under ARB caselaw, "the filing of charges against Complainant which carried the potential for future discipline was an unfavorable personnel action." Id. at 27.

The ARB found that substantial evidence supported the ALJ's findings and that the ALJ legal analysis and conclusions were correct. The ARB wrote:

The ALJ noted that the relevant regulations include "intimidating" and "threatening" actions as prohibited discrimination. We agree with the ALJ's reliance on our analysis of a similar regulation in Williams v. American Airlines, ARB No. 09-018, 2007-AIR-004 (ARB Dec. 29, 2010). Moreover, Congress re-emphasized the broad reach of FRSA when it expressly added "threatening discipline" as prohibited discrimination in section 20109(c) of the FRSA whistleblower statute. The disciplinary investigation stretching one year in this case qualifies as discrimination under the regulations and as "any other discrimination" prohibited by the statute.
PATH unpersuasively challenges the ALJ's factual finding of causation by arguing that it initiated a disciplinary investigation only because of the allegedly unsafe use of a chair (sitting on it) and not because Vernace reported an injury. As the ALJ explained, this clever distinction ignores the broad and plain language of the statute and regulations. It also ignores FRSA's extensive legislative history citing the rampant practices of abuse and intimidation inflicted on railroad workers who reported or even attempted to report work injuries. The ALJ thoroughly explained her factual and legal findings, and we incorporate them into this decision.

ARB slip op. at 2-3) (footnotes omitted).

FILING OF COMPLAINT IN DISTRICT COURT; NO SANCTION FOR FAILURE TO COMPLY WITH ADVANCE NOTICE AND SERVICE REQUIREMENTS OF 29 C.F.R. § 1982.114(b)

In Pfeifer v. Union Pacific Railroad Co., ARB No. 12-087, ALJ No. 2011-FRS-38 (ARB Nov. 19, 2012), the ARB dismissed the Complainant's FRSA administrative complaint based on the Complainant's filing of an action in U.S. District Court for the District of Kansas. Although the Complainant failed to give 15 days advance notice of the district court filing, and failed to file with the ARB a copy of the district court complaint, as required by the regulation at 29 C.F.R. § 1982.114(b), the ARB observed that the regulations provide no sanction for failure to comply with the advance notice and service requirements.

FILING OF COMPLAINT IN DISTRICT COURT; NO SANCTION FOR FAILURE TO COMPLY WITH ADVANCE NOTICE AND SERVICE REQUIREMENTS OF 29 C.F.R. § 1982.114(b)

SUMMARY DECISION ON CAUSATION; ALJ MUST ANALYZE EACH ELEMENT OF FRSA CLAIM, MUST APPLY PROPER "CONTRIBUTING CAUSE" ANALYSIS AND OTHER BURDENS OF PROOF, MUST NOT DECIDE ISSUES OF FACT, AND MUST VIEW EVIDENCE IN LIGHT MOST FAVORABLE TO NONMOVING PARTY

In Henderson v. Wheeling & Lake Erie Railway, ARB No. 11-013, ALJ No. 2010-FRS-12 (ARB Oct. 26, 2012), the ALJ granted summary decision on the ground that the Complainant had not raised a genuine issue of material fact as to whether he violated the Respondent's rules requiring prompt reporting of personal injuries. The ARB found that the ALJ made a series of errors.

1. ALJ must analyze each element of FRSA claim in order to reach causation issue

First, although the ALJ correctly cited the elements of a FRSA whistleblower case, and the Respondent had not expressly challenged the elements of protected activity and adverse action, the ALJ "needed to expressly identify the alleged protected activity and adverse action to analyze whether a genuine issue of material fact existed on the issue of causation. Without identifying the protected activity and adverse action the ALJ cannot determine if the facts and evidence in the record support the claim that protected activity was a contributing factor in the adverse action." The ARB, however, found that in this particular case, the record demonstrated that both parties acknowledged the Complainant reported or attempted to report an injury from an air bag discharge, and from a back injury. These circumstances were sufficient for the ARB, for purposes of the appeal, to assume that this was protected activity. Moreover, the ARB presumed adverse action based on the Respondent termination of the Complainant's employment.

2. ALJ erred in apparently applying "legitimate business reason" analysis rather than "contributing cause" analysis

Second, the ALJ failed to analyze whether the alleged protected activity contributed to the termination of employment. The ALJ addressed the Complainant's pretext and disparate treatment claims; but these were not elements the Complainant needed to address to survive summary decision on the issue of causation. The ALJ appeared to base summary decision solely on a finding that the Complainant had committed a dismissible offense, similar to the "legitimate business reason" burden of proof analysis not applicable to FRSA complaints. Rather, the correct analysis in FRSA cases is"contributing factor" analysis. The ARB pointed to two exhibits submitted by the Respondent which themselves raised issues of material fact on the question of causation; to evidentiary proffers by the Complainant providing substantial evidence that protected activity may have contributed to the termination; and to inferences that could be drawn from temporal proximity and the inextricable intertwining of the protected activity and the adverse action.

-- presumption that protected activity contributed to adverse action

The ARB also noted similarities between this case and its recent decision in DeFrancesco v. Union R.R. Co., ARB No. 10-114, ALJ No. 2009-FRS-9 (ARB Feb. 29, 2012). In the instant case, if the Complainant had not reported his back injury, he would not have been investigated and ultimately fired for failing to fill out a timely injury report. And if the Complainant had not claimed that the pain was work-related, he would not have been investigated and ultimately fired for failing to exercise occupational safety in connection with the injury. The ARB stated that in these circumstances the inference of causation may be presumed automatically, but as a presumptive inference. The presumption was sufficient to defeat the Respondent's summary decision motion.

3. Affirmative defense: ALJ apparently misplaced burden on Complainant to prove pretext

The ARB noted that the ALJ's opinion suggested that she considered the Respondent's affirmative defense when deciding the motion for summary decision. The ARB stated that it was not sufficient to confirm the rational basis of the Respondent's employment policies and decisions; rather, those reasons must be "so powerful and clear that termination would have occurred apart from the protected activity."

The ALJ erred in apparently imposing the burden on the Complainant of proving that he was not fired for the reason offered by the Respondent. Since the Complainant had established causation sufficient to withstand summary decision, the burden shifted to the Respondent to establish its affirmative defense by clear and convincing evidence. The ARB wrote: "Even where a respondent asserts legitimate, non-discriminatory reasons as part of its affirmative defense, a complainant can create a genuine issue of fact by pointing to specific facts or evidence that, if believed, could discredit the respondent's reasons, making them less convincing on summary decision."

4. ALJ improperly decided questions of fact at summary decision stage, and failed to view evidence in the light most favorable to the Complainant

The ARB found that the ALJ improperly decided questions of fact at the summary decision stage, and failed to view evidence in the light most favorable to the Complainant. The ARB also found that the ALJ should have taken into consideration certain undisputed facts that have been used successfully in other whistleblower cases to establish circumstantial evidence of discriminatory motive, such as evidence that the Complainant had been considered a good worker, and such as selective enforcement.

FRSA SECTION 20109(c)(1) PROHIBITS A RAILROAD FROM DENYING, DELAYING, OR INTERFERING WITH AN EMPLOYEE'S MEDICAL TREATMENT THROUGHOUT THE PERIOD OF TREATMENT AND RECOVERY FROM A WORK INJURY

In Santiago v. Metro-North Commuter Railroad Co., Inc., ARB No. 10-147, ALJ No. 2009-FRS-11 (ARB July 25, 2012), the Complainant alleged that the Respondent violated the Federal Rail Safety Act of 1982 (FRSA), 49 U.S.C. § 20109, when it reclassified his back injury as non-occupational and ceased paying for medical treatment. The ALJ concluded that FRSA § 20109(c)(1)'s prohibition on a railroad on delaying, or interfering with an employee's medical treatment applies only to the temporal period surrounding the injury, and therefore the Respondent in the instant case did not violate the FRSA because it had approved and paid for the prescribed treatment for eight weeks. On appeal the ARB acknowledged that the ALJ had made a thoughtful and comprehensive analysis of the difficult issues presented, but respectfully disagreed with her conclusion. Employing rules of statutory construction, the ARB held that "subsection 20109(c)(1) bars a railroad from denying, delaying, or interfering with an employee's medical treatment throughout the period of treatment and recovery from a work injury." Moreover, although the clear language of the statute made in unnecessary to refer to the legislative history, the ARB found that the history supported a broad interpretation of the law.

The ARB also addressed the meaning of "deny, delay or interfere," and found:

These are prohibitive words simply meaning to impede, slow down, or prevent medical treatment from moving forward or occurring. An act that causes medical treatment to be rescheduled necessarily means that the treatment was delayed. Any obstacle placed in the way of treatment necessarily results in interference. Denial means to refuse or reject a request for medical care. This subsection of the statute simply focuses on whether the railroad carrier interfered with medical treatment and thereby engaged in adverse action. ...[I]ssues pertaining to the reasonableness or necessity of the treating physician's treatment plan may be a factor in the railroad's attempt to establish an affirmative defense under section 20109(c), but not a factor in the employee's attempt to prove that the railroad interfered with medical treatment.

USDOL/OALJ Reporter at 16 (footnote omitted).

The ARB held that a railroad does not have an affirmative duty under the FRSA whistleblower statute to provide medical care, but only a duty to transport the employee to a hospital and not interfere with medical care or treatment. The ARB held, however, that where the railroad agrees to pay for medical treatment for work injuries, it cannot insert itself into the process and influence the level of care provided.

The ARB summarized: "[T]o prove that a railroad carrier violated subsection 20109(c)(1), an employee needs to prove that (1) the carrier inserted itself into the medical treatment and (2) such act caused a denial, delay, or interference with medical treatment." USDOL/OALJ Reporter at 17.

The ARB rejected the Respondent's argument on appeal that permitting subsection 20109(c)(1) to apply beyond the immediate period of injury would eviscerate the Federal Employers' Liability Act, finding that although there can be overlapping remedies, a railroad's defense against a FELA claim is separate from those addressed in a FRSA whistleblower claim.

CLEAR AND CONVINCING STANDARD OF PROOF IN FRSA SECTION 20109(c) REQUEST FOR MEDICAL CARE CASES; BECAUSE AIR21 CLEAR AND CONVINCING STANDARD CANNOT BE APPLIED LITERALLY, ARB CRAFTS INTERPRETATION REQUIRING SHOWING THAT THE RESULT WOULD HAVE BEEN THE SAME ABSENT THE RESPONDENT'S INTERFERENCE WITH THE CARE

...prove by clear and convincing evidence that the result would have been the same with or without the railroad carrier's interference (if the employee first proves that the railroad carrier or other covered person interfered). This does not require that the ALJ weigh medical evidence and actually decide the issue of medical causation or reasonableness one way or the other. Instead, as in other discrimination cases, the ALJ must look at all the direct and circumstantial evidence, as a whole, to determine whether the [r]espondent clearly and convincingly proved that the outcome would have been the same without [the respondent's] alleged interference.

USDOL/OALJ Reporter at 18-19.

FRSA ELECTION OF REMEDIES PROVISION DOES NOT BAR AN FRSA WHISTLEBLOWER COMPLAINT

In Mercier v. Union Pacific R.R. Co., ARB Nos. 09-101, -121, ALJ Nos. 2008-FRS-3, 4 (ARB Sept. 29, 2011), the ARB held that the FRSA's election of remedies provision at 49 U.S.C.A. § 20109(f) does not bar an FRSA whistleblower complaint even though the complainant previously pursued a grievance and arbitration procedure provided in his union's collective bargaining agreement with his employer. The ARB reasoned that "the plain meaning of ‘another provision of law' does not encompass grievances filed pursuant to a ‘collective bargaining agreement,' which is not ‘another provision of law' but is instead a contractual agreement." Mercier, ARB No. 09-121, USDOL/OALJ Reporter at 6. The ARB thus determined that the election of remedies provision does not bar a FRSA whistleblower claim because of a previously filed or pending collective bargaining grievance.

The ARB clarified, however, that its ruling does not permit a double recovery:

While subsection (f) cannot be read to bar concurrent whistleblower and collective bargaining claims, we do understand the necessity for barring duplicative recovery under those claims. The FRSA provides that an employee prevailing in a whistleblower complaint "shall be entitled to all relief necessary to make the employee whole." 49 U.S.C.A. 20109(e)(1). Damages may include reinstatement, backpay, compensatory damages, and punitive damages not to exceed $250,000. 49 U.S.C.A. §§ 20109(e)(2), (3). In this case, Mercier appears to pursue compensatory damages for pain and suffering stemming from mental hardship, stress, and treatment for depression. See Mercier Complaint at 9. These are damages distinct to his complaint under 49 U.S.C.A. §§ 20109 that may not be available to him under the collective bargaining agreement. In any event, it is well-established that any relief to which Mercier is entitled would be that which would make him "whole" and would not include double recovery. See generally Sears Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 69-70 (9th Cir. 1956) ("a plaintiff may pursue an action against an identical defendant in several courts at the same time, even though inconsistent remedies are sought. But . . . there can be only one recovery."); Taylor v. Burlington Northern R.R. Co., 787 F.2d 1309, 1317 (9th Cir. 1986) (same).

USDOL/OALJ Reporter at 8.

CONTRIBUTING FACTOR; COMPLAINANT IS NOT REQUIRED TO ESTABLISH THAT RESPONDENT HAD RETALIATORY ANIMUS

CONTRIBUTING FACTOR UNDER THE FRSA; WHERE THE RESPONDENT REVIEWED THE COMPLAINANT'S DISCIPLINE AND INJURY HISTORY AFTER THE COMPLAINANT REPORTED A WORK-RELATED PERSONAL INJURY, THE ARB FOUND AS A MATTER OF LAW THAT THE REPORT OF INJURY WAS A CONTRIBUTING FACTOR TO THE SUSPENSION

In DeFrancesco v. Union Railroad Co., ARB No. 10-114, ALJ No. 2009-FRS-9 (ARB Feb. 29, 2012), the Complainant filed a complaint charging that the Respondent violated the FRSA employee protection provision when the Respondent suspended the Complainant for 15 days after he reported a slip-and-fall accident. Following the report of the accident, a supervisor decided to review the Complainant's discipline and injury history to determine whether he exhibited a pattern of unsafe behavior that required corrective action. It was following that review that the Complainant was suspended. After a hearing, the ALJ found that the Complainant failed to establish that his protected activity was a contributing factor in the adverse action and dismissed the complaint. On appeal, the ARB found that the ALJ had erred in his analysis of whether the Complainant's report of his injury was a contributing factor to the suspension because the ALJ had considered the "key inquiry" to be whether the Complainant could establish that supervisors were motivated by "retaliatory animus." The ARB wrote:

...This is legal error. DeFrancesco is not required to show retaliatory animus (or motivation or intent) to prove that his protected activity contributed to Union's adverse action. Rather, DeFrancesco must prove that the reporting of his injury was a contributing factor to the suspension. By focusing on the motivation of [the supervisors], the ALJ imposed on DeFrancesco an incorrect burden of proof, thus requiring remand.
    The ARB has said often enough that a "contributing factor" includes "any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision." The contributing factor element of a complaint may be established by direct evidence or indirectly by circumstantial evidence. Circumstantial evidence may include temporal proximity, indications of pretext, inconsistent application of an employer's policies, an employer's shifting explanations for its actions, antagonism or hostility toward a complainant's protected activity, the falsity of an employer's explanation for the adverse action taken, and a change in the employer's attitude toward the complainant after he or she engages in protected activity.
    If DeFrancesco had not reported his injury as he was required to do, Kepic would never have reviewed the video of DeFrancesco's fall or his employment records. Kepic admitted this at the hearing, testifying that such a review was routine after an employee reported an injury and that the purpose of the review was to determine "the root cause." Kepic stated that after seeing the video he reviewed DeFrancesco's injury and disciplinary records to determine whether there was a pattern of safety rule violations and what corrective action, if any, needed to be taken.
    While DeFrancesco's records may indicate a history and pattern of safety violations, the fact remains that his report of the injury on December 6 triggered Kepic's review of his personnel records, which led to the 15-day suspension. If DeFrancesco had not reported his fall and Kepic had not seen the video, Kepic would have had no reason to conduct a review of DeFrancesco's injury and disciplinary records, decide that he exhibited a pattern of unsafe conduct, and impose disciplinary action.
    Union's decision to suspend DeFrancesco for 15 days thus violated the direct language of the FRSA, which provides that a railroad carrier may not "suspend" an employee when the employee's actions are "due, in whole or in part, to the employee's lawful, good faith act done." The statute provides that a "good faith act" includes "notify[ing]" his employer of "a work-related personal injury." Applying the framework of proving a contributing factor under AIR 21, we can only conclude as a matter of law that DeFrancesco's reporting of his injury was a contributing factor to his suspension.

DeFrancesco, ARB No. 10-114, USDOL/OALJ Reporter at 6-8 (footnotes omitted). The ARB remanded the case for the ALJ to consider whether the Respondent showed by clear and convincing evidence that it would have suspended the Complainant absent the protected activity.

CLEAR AND CONVINCING EVIDENCE STANDARD

In DeFrancesco v. Union Railroad Co., ARB No. 10-114, ALJ No. 2009-FRS-9 (ARB Feb. 29, 2012), the ARB held that where the Respondent reviewed the complainant's discipline and injury history after the complainant reported a work-related personal injury, the report of injury was a contributing factor to the suspension as a matter of law. Because the ALJ had not reached the issue of whether the Respondent showed by clear and convincing evidence that it would have suspended the Complainant absent the protected activity, the ARB remanded the case. The ARB wrote:

The burden of proof under the clear-and-convincing standard is more rigorous than the preponderance-of-the-evidence standard. Clear and convincing evidence denotes a conclusive demonstration, i.e., that the thing to be proved is highly probable or reasonably certain. Clear and convincing evidence that an employer would have disciplined the employee in the absence of the protected activity overcomes the fact that an employee's protected activity played a role in the employer's adverse action and relieves the employer of liability.

DeFrancesco, ARB No. 10-114, USDOL/OALJ Reporter at 8 (footnotes omitted).

CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT WOULD HAVE ELIMINATED THE COMPLAINANT'S POSITION EVEN IN THE ABSENCE OF PROTECTED ACTIVITY; EVIDENCE OF COST-CUTTING PROGRAM

In Wignall v. Union Pacific Railroad Co., ARB No. 10-103, ALJ No. 2009-FRS-5 (ARB Feb. 22, 2012), the ARB found that substantial evidence supported the ALJ's finding that the Respondent established by clear and convincing evidence that it would have abolished the Complainant's welder position even absent any protected activity where the Respondent had implemented a cost-cutting program called Project 75. In this regard, the Complainant's supervisor had consulted with the Director of Track Maintenance for the service unit and obtained permission to abolish a welder and add a welder helper to make the gang consistent with the rest of the two-man welding gangs on the maintenance side of the service unit. The supervisor had also consulted with the Director prior to abolishing various other operator positions, and had made other cost cutting measures during the same period of time. The supervisor estimated that the Respondent saved tens of thousands of dollars from these initiatives, including the elimination of the Complainant's job and the other section jobs.

The Superintendent of the service unit testified to an instance where an arc welder position in the service unit was abolished "only five days after it was filled, replacing the welder with a welder helper." The arc welder position was changed to a welder helper after the Superintendent reviewed all manning on welding gangs across the service unit and identified specific jobs for elimination for cost savings purposes. The Superintendent also learned that some three-man gangs had two welders and one welder helper, and requested that they be changed to one welder with two welder helpers for cost savings. The Superintendent testified that the cost-saving measure affected some management level employees, who either lost their jobs or were reassigned, and that there was a reduction pool made in an effort to give people whose jobs were being cut an opportunity to look for other employment with the Respondent. The Complainant appeared to agree that a welder on a two-person welder gang could be effectively replaced by a welder helper, and stated at the hearing that the welder helper could be paid approximately $2.83 per hour less than a welder.

NATIONAL TRANSIT SYSTEMS SECURITY ACT

SUMMARY JUDGMENT NOT GRANTED WERE REASONABLE JURY COULD FIND PROTECTED ACTIVITY IN REPORTING OF SAFETY CONCERNS WITH SUBWAY GATES; ADVERSE EMPLOYMENT ACTION; CAUSATION; AND LACK OF CLEAR AND CONVINCING EVIDENCE THAT DEFENDANTS WOULD HAVE TAKEN SAME ADVERSE ACTION IN ABSENCE OF PROTECTED ACTIVITY

In Nichik v. New York City Transit Authority, No. 1:10-cv-05260 (E.D.N.Y. Jan. 11, 2013), the Plaintiff, a superintendent for the New York City Transit Authority, alleged that he was retaliated against by the Defendants for reporting unsafe conditions related to gates in New York City subway stations under several laws, including the National Transit Systems Security Act ("NTSSA"), 6 U.S.C. § 1142. The Defendants filed a motion for summary judgment. The district court judge noted that there was little caselaw regarding the NTSSA, but that the parties agreed that he could look to other whistleblower statutes for guidance, including the SOX, 18 U.S.C.A. 1514A.

Protected Activity

The NTSSA protects transportation employees who make reports regarding hazardous safety or security conditions on the public transportation system. § 1142(b)(1)(A). The Defendants had not briefed the issue of protected activity and the court found that the Plaintiff's activities were sufficient to support a jury finding he engaged in protected activity under the NTSSA.

Specifically, the Plaintiff had emailed NYCTA's then president regarding unsafe subway conditions explaining that the gates are required to be secured (whether in the closed or open position), and that the failure to secure them could lead to injuries or fatalities. The Plaintiff expressed concern that this problem may be system-wide. The Plaintiff also provided the president with photographs depicting discrepancies between the reported conditions of the gates and their actual conditions.

Adverse Action; "Materially Adverse" Standard

The Defendants conceded that its "Disciplinary Action Notification" against the Plaintiff was an adverse action, but argued that various other acts were not. The court applied the "material adverse" standard of Burlington N. & Santa Fe R.R. Co., 548 U.S. 53, 68 (2006), and found that a reasonable jury could find that personnel actions taken against the Plaintiff could dissuade a reasonable NYCTA worker from reporting a hazardous safety or security condition. In the two months following his report of the safety problem with the gates, the Plaintiff had received six reinstructions (a written reminder to an employee to conform his actions to NYCTA requirements) and a citation. The reinstructions were placed in his personnel file and relied upon in making future decisions about discipline; they were used in a "marginal" performance review which in turn resulted in the Plaintiff's not receiving a raise; and there was deposition testimony stating that a reinstruction can be a form of discipline.

Causation; Contributing Factor Standard

The court stated that the NTSSA requires the Plaintiff to demonstrate a causal connection between his protected activity and the adverse actions taken by the Defendants by showing, by a preponderance of the evidence, that the protected activity was a "contributing factor in the unfavorable personnel action" taken against him. § 1142(c)(2)(B)(i).

The Defendants contended that the Plaintiff could not show causal connection because there was lack of temporal proximity between the protected activity and the unfavorable personnel action, i.e., there was a six month period between the Plaintiff's report and the Disciplinary Action Notification. The court, however, found that a reasonable jury could conclude that the reinstructions occurred beginning a month after the report, and demonstrated temporal proximity. The court also noted that there was direct and circumstance evidence of retaliatory animus supporting a causal connection. For example, the Plaintiff had "good" ratings on his yearly managerial performance reviews in the six years preceding the protected activity. In the eight months prior to the protected activity, the Plaintiff had received only two reinstructions, but beginning a month later, he began to receive numerous reinstructions and write-ups. While the Defendants provided explanations for the reinstructions and the Disciplinary Action Notification, the court found that those arguments were more appropriately addressed by a jury.

Non-retaliatory Defense; Clear and Convincing Evidence Standard; Evidence That Other Managers Would Not Have Been Disciplined for Similar Actions As Preventing Summary Judgment

The court noted that "[i]n a NTSSA action, an employer may defeat a prima facie case of retaliation at the summary judgment stage if it can show that no genuine issue of material fact exists that would preclude the conclusion, by clear and convincing evidence, that defendant ‘would have taken the same unfavorable personnel action in the absence of [the protected] behavior.' See § 1142(c)(2)(B)(iv)." Nichik, supra, slip op. at 11.

The Defendants argued that the Plaintiff had a long record of poor and marginal performance as a superintendent, including submitting monthly reports late, failing to inspect his station, and failing to report to a station where a dead person was found in a restroom, despite being instructed to do so by his supervisor. The Defendants contended that the Plaintiff's insubordination left them with no choice but to discipline and suspend him. The court, however, found that there was evidence that other employees in managerial positions would not have been disciplined for similar conduct, and that on the record before him, he could not conclude as a matter of law that the Defendants demonstrated by clear and convincing evidence that the Plaintiff's infractions would have necessarily resulted in unfavorable employment actions independent of any retaliatory motive.

REQUEST FOR HEARING PRIOR TO ISSUANCE OF SECRETARY'S FINDINGS BY OSHA BASED ON CONSTRUCTIVE DENIAL THEORY; COMPLAINANT CARRIES BURDEN OF ESTABLISHING OALJ AUTHORITY TO PROVIDE SUCH EQUITABLE RELIEF AND THAT GROUNDS EXIST FOR GRANTING SUCH RELIEF

In Graves v. MV Transportation, Inc., 2012-NTS-1 (ALJ June 8, 2012), the Complainant requested a hearing alleging that OSHA had failed to complete its investigation in a timely manner. The Chief ALJ isseud an order directing the parties to brief whether OALJ had the authority to take jurisdiction over the matter under a theory of constructive denial, and whether grounds existed for granting such relief in the instant case. The Assistant Secretary for OSHA was the only party to submit a brief on the matter. Noting that the Complainant's hearing request prior to issuance of the Secretary's Findings by OSHA was a request for extraordinary equitable relief, and that the only argument from the Complainant was the allegation that OSHA failed to complete its investigation in a timely fashion, the Chief ALJ found that the Complainant had failed to carry his burden to establish both OALJ’s authority to assume jurisdiction and that grounds existed for exercise of such authority in the instant case. Thus, the hearing request was dismissed without prejudice. In view of this disposition of the hearing request, the Chief ALJ did not address the Assistant Secretary's argument that a claim of constructive denial of due process for an alleged failure of OSHA to timely complete its investigation should never succeed where a statute allows a complainant to file in district court if the Secretary delays issuance of a final order. See 6 U.S.C. § 1142(c)(7); 29 C.F.R. § 1982.1114.

SUMMARY DECISION; ALJ'S OBLIGATION TO NOTIFY PRO SE LITIGANT OF REQUIREMENTS FOR RESPONDING TO MOTION FOR SUMMARY DECISION

In Motarjemi v. Metropolitan Council Metro Transit Division, ARB No. 08-135, 2008-NTS-2 (ARB Sept. 17, 2010), the ALJ issued a decision granting the Respondent's motion for summary decision because the Complainant had not responded to the motion. The ARB found that this was error:

    In Hooker v. Washington Savannah River Co., [ARB No. 03-036, ALJ No. 2001-ERA-016 (ARB Aug. 26, 2004)] the ARB adopted federal precedent requiring a judge to give a pro se complainant notice of the requirements for opposing a motion for summary judgment, and the right to file pleadings, affidavits, or other evidence in response to the motion. We held that the ALJ in that case erred in granting summary judgment on Hooker's constructive discharge and blacklisting claims because he failed to inform Hooker of "his right to file affidavits or ‘other responsive materials' and did not warn him that failing to respond could mean that his case would be over."
    In this case, the record does not indicate that the ALJ informed Motarjemi, prior to issuance of the R. D. & O, of his right to oppose the Motion. Instead, the ALJ dismissed Motarjemi's complaint without informing him of the consequences for failing to respond to the Motion. This constitutes prejudicial error by the ALJ.
    We noted in Hooker that, when being notified of the requirements for responding to a motion for summary decision, a pro se litigant is entitled to "a form of notice sufficiently understandable to one in appellant's circumstances fairly to apprise him of what is required." Accordingly, we direct the ALJ to provide Motarjemi with a notice containing: (1) the text of the rule governing summary decisions before ALJs (i.e., 29 C.F.R. § 18.40), and (2) a short and plain statement that factual assertions in Metro Transit's affidavits will be taken as true unless he contradicts Metro Transit with counter-affidavits or other documentary evidence.
    Motarjemi must be given an opportunity to respond to the Motion so that he may, as described above, set forth specific facts showing that there is a genuine issue of fact for a hearing.

USDOL/OALJ Reporter at 4 (footnotes omitted).

PIPELINE SAFETY IMPROVEMENT ACT

PROTECTED ACTIVITY; WORK REFUSAL BASED ON REASONABLE AND GOOD FAITH BELIEF THAT THE WORK WOULD VIOLATE A FEDERAL PIPELINE SAFETY LAW LOOSES PROTECTED STATUS ONCE RESPONDENT INVESTIGATES AND A SOLUTION IS COMMUNICATED TO COMPLAINANT

Under the whistleblower provision of the Pipeline Safety Improvement Act, an employee who refuses to perform a task because of a pipeline safety concern is not required to establish that the allegedly illegal practice at issue actually violated a Federal law relating to pipeline safety. Rather the employee is only required to prove that his refusal to work was properly communicated to the employer and was based on a reasonable and good faith belief that the work would violate a Federal law relating to pipeline safety. The work refusal, however, loses its protected status after the perceived hazard has been investigated and, if found safe, is adequately explained to the employee. Rocha v. AHR Utility Corp., ARB No. 07-112, ALJ Nos. 2006-PSI-1 through 4 (ARB June 25, 2009). In Rocha, the ARB found that substantial evidence supported the ALJ's findings that the Respondents and the state officials took the Complainants' concerns about whether corroded pipes could be welded with sufficient quality to safely carry natural gas "very seriously" and investigated to determine whether the pipe was acceptable. The ALJ found that a solution was presented to the Complainants that allowed them to cut and grind the pipes to achieve field quality welds. The ARB agreed with the ALJ's conclusion that, when the Complainants refused to weld after the Respondents offered this solution and did not question the proposed solution, their work refusal lost its protected status.

TIMELINESS OF PETITION FOR JUDICIAL REVIEW OF AGENCY DECISION; TOLLING BASED ON FILING OF MOTION FOR RECONSIDERATION WITH THE AGENCY

In Saban v. USDOL, No. 06-2837 (7th Cir. Dec. 4, 2007) (case below ARB No. 03-143, ALJ No. 2003-PSI-1), the Seventh Circuit held that the Complainant’s petition for review of the ARB’s denial of his Pipeline Safety Improvement Act whistleblower claim was timely where, although he did not file the petition within 60 days of the ARB’s decision denying the claim, he had filed a timely motion for reconsideration with the ARB and then filed his petition for review within 60 days after the Board denied that motion. The court expressed concern that Supreme Court rulings to the effect that the filing of a motion for reconsideration with the agency tolled the time for filing a petition for judicial review had been thrown into doubt by the Supreme Court decision in Darby v. Cisneros, 509 U.S. 137, 145-47 (1993) (citing section 10(c) of the Administrative Procedure Act), but found that it was bound by the earlier Supreme Court authority.

RETROACTIVE APPLICATION OF WHISTLEBLOWER PROVISION OF THE PSIA

The whistleblower provision of the Pipeline Safety Improvement Act does not have restroactive effect. Saban v. USDOL, No. 06-2837 (7th Cir. Dec. 4, 2007) (wrongful termination took place more than three years before the PSIA was passed).

RETROACTIVE APPLICATION OF THE WHISTLEBLOWER PROVISION OF THE PIPELINE SAFETY IMPROVEMENT ACT

In Saban v. Morrison Knudsen, ARB No. 03-143, ALJ No. 2003-PSI-1 (ARB Mar. 30, 2005), the ARB affirmed the ALJ's holding that since the alleged adverse action predated the effective date of the whistleblower protection provision of the Pipeline Safety Improvement Act of 2002, and since Congress did not intend that the Act be applied retroactively, the complaint should be dismissed. See Landgraf v. USI Film Products, 511 U.S. 244 (1994).

PSI INTERIM FINAL RULE

On April 5, 2004, OSHA published an Interim Final Rule stating Procedures for the Handling of Discrimination Complaints under Section 6 of the Pipeline Safety Improvement Act of 2002, Interim Final Rule, 69 Fed. Reg. 17587 (Apr. 5, 2004). The regulations are similar to the regulations implementing AIR21, nuclear and environmental, and STAA whistleblower laws.

RETROACTIVE APPLICATION

In Saban v. Morrison Knudsen, 2003-PSI-1 (ALJ July 25, 2003), the ALJ found that the statutory language and Congressional history of section 60129 of the Pipeline Safety Improvement Act evidenced no intent by Congress for retroactive application. Accordingly, where Complainant's complaint was about circumstances that occurred in 1999 but the PSI whistleblower provision did not become effective until December 17, 2002, the ALJ granted Respondent's motion to dismiss.

PROTECTED ACTIVITY; WORK REFUSAL LOOSES PROTECTION ONCE PERCEIVED HAZARD INVESTIGATED, FOUND SAFE, AND ADEQUATELY EXPLAINED TO THE EMPLOYEE

In Rocha v. AHR Utility Corp., 2006-PSI-1 to 4 (ALJ July 25, 2007), the Complainants were experienced welders who refused to continue welding pipe for a gas line that would cross over an Interstate highway based on their belief that if they installed the pipe as requested, a safety risk to the public would result. The ALJ found that the Complainants held this belief in good faith, and that a reasonable person with the Complainants' experience and training would have, under the circumstances, believed that the pipe was unsafe to install in the gas line. The pipe had been left outside for a long period of time and was heavily corroded. The ALJ also found, however, that the representatives of the Respondents and the state DOT took the Complainants' concerns very seriously, and confirmed with engineering staff that the pipe was acceptable. Moreover, they authorized the Complainants to cut back on pipe ends without limit to find acceptable weld locations. The ALJ found that this proposal appeared to have met the Complainants' safety and quality concerns, and fulfilled the Respondents' duty to respond to the Complainants' good faith work refusal. The ALJ found that "any protection the Complainants would have had for their work refusal ceased when they failed to give further explanation or make a further inquiry into the adequacy of respondents' response to their concerns." Slip op. at 12-13 (citing Stockdill v. Catalytic Indust. Maint. Co., Inc., 1990-ERA-43, at 3 (Sec'y Jan. 24, 1996).

REQUEST FOR HEARING PRIOR TO ISSUANCE OF SECRETARY'S FINDINGS BY OSHA BASED ON CONSTRUCTIVE DENIAL THEORY; ASSUMING OALJ HAS AUTHORITY TO GRANT RELIEF, IT IS AN EXTRAORDINARY REMEDY THAT MUST BE GRANTED ONLY WITH CAUTION

In Klink v. Bechtel Oil, Gas & Chemicals, 2011-PSI-2 (ALJ Sept. 14, 2011), the Complainant sought an ALJ hearing based on a theory of constructive denial based on information indicating that it may take more than three years for OSHA to complete its investigation. OALJ docketed the matter and solicited briefs. Based on information from the Secretary that OSHA had begun its investigation and that it would complete its investigation within a few months, and assuming arguendo that OALJ has authority to take jurisdiction pursuant to a finding of constructive denial, such a procedure is extraordinary in nature, the Chief ALJ dismissed the hearing request.

IMMIGRATION - H-1B WORKERS

DEBARMENT AND CIVIL PENALTIES; IMPOSITION AGAINST VETERANS AFFAIRS MEDICAL CENTER AGAINST PUBLIC POLICY

In Talukdar v. U.S. Dept. of Veterans Affairs Medical & Regional Office Center, Fargo, ND, 2002-LCA-25 (ALJ Apr. 12, 2004), the ALJ found that the Respondent violated the anti-discrimination provision of the H-1B labor condition application regulations when it discharged two physicians after they had cooperated with a DOL investigation into whether prevailing wages had been paid to H-1B workers. Although the ALJ ordered reinstatement, back pay, relocation expenses for one of the Complainants, and expungement of a retaliatory proficiency report in one of the Complainant's personnel files, she declined to impose civil penalties and debarment from participation in the H-1B LCA program where the Respondent was a VA medical center. The ALJ stated: "...I conclude that these remedies are inappropriate against this Respondent, a publicly funded veterans' medical center with chronic budget struggles, which needs H-1B physicians to provide care for its patients."

REINSTATEMENT; FACILITY AT WHICH OFFER MUST BE MADE; REJECTION OF OFFER TERMINATES BACK PAY LIABILITY

In Talukdar v. U.S. Dept. of Veterans Affairs Medical & Regional Office Center, Fargo, ND, 2002-LCA-25 (ALJ Apr. 12, 2004), two physician-Complainants indicated a preference not to be reinstated to the same facility at which the retaliatory conduct occurred. The ALJ, however, found that the Respondent could offer reinstatement at the same facility or another mutually agreeable facility. The ALJ noted that the Complainants were free to accept or reject the offer of reinstatement, albeit back pay would terminate as of the date of a rejection of a reinstatement offer.

RETALIATION FOR COOPERATION WITH H-1B PREVAILING WAGE INVESTIGATION; PROXIMITY OF PROTECTED ACTIVITY TO ADVERSE ACTION; BUDGETARY LIMITATIONS AS PRETEXT

In Talukdar v. U.S. Dept. of Veterans Affairs Medical & Regional Office Center, Fargo, ND, 2002-LCA-25 (ALJ Apr. 12, 2004), the ALJ found that two physicians were fired from a Veterans Affairs medical center (VAMC) because they provided information to an investigator for the Department of Labor who performed an audit of VAMC's H-1B visa program in January 2001. Under the Immigration and Nationality Act, an employer seeking to hire an alien in a specialty occupation on an H-1B visa must obtain certification from the U.S. Department of Labor ("DOL") by filing a Labor Condition Application ("LCA). 8 U.S.C. § 1182(n). The DOL is responsible for investigating complaints that an employer has failed to comply with the terms of the LCA, or has failed to pay the appropriate wage rate. 8 U.S.C. § 1182(n)(2). Subsection (n)(2)(C)(iv) provides that it is a violation of the Act for an employer to discriminate against an employee who discloses information about or cooperates with an investigation of a violation of the Act's requirements. According to the regulatory history of the implementing regulations -- because the language and intent of this provision are similar to the employee protection provisions contained in the nuclear and environmental whistleblower statutes administered by DOL, the same analysis applies. 65 Fed. Reg. 80178 (2000); see Administrator v. IHS Inc., 1993-ARN-1 (ALJ Mar. 18, 1996).

The two physician-Complainants involved were not H-1B workers themselves, but participated in advocacy on behalf of VAMC H-1B physicians in their leadership roles in the physicians' union. The ALJ found that although the H-1B advocacy extended over a period of time, the proximate events leading up to the Complainants' discharges transpired over a period of less than two months as the H-1B issue came to the forefront. The ALJ found that this proximity established a nexus between the protected activity and the adverse employment action. The ALJ found that the Respondent's proffered legitimate non-discriminatory reason -- budgetary problems -- was not credible and was a pretext for retaliation for the Complainants participation in the DOL H-1B investigation. The ALJ analyzed the Respondent's past practices vis-a-vis budgetary limitations and found that terminating the employment of physicians had never been the way in which such problems were addressed. The ALJ also rejected an additional suggestion that performance was an issue with one of the Complainants where this reason was proffered after-the-fact, and where the negative performance appraisal was inconsistent with four previous appraisals and did not match or distorted the duties assigned.

E-DISCOVERY

DISCOVERY; ELECTRONIC RECORDS; E-MAIL

Judge Shira A. Scheindlin of the U.S. District for the Southern District of New York issued a series of rulings in 2003 involving discovery of electronic records and e-mail in Zubulake v. UBS Warburg LLC, No. 02 Civ 1243. The Plaintiff's suit is grounded in Federal, State and City law for gender discrimination and illegal retaliation. Discovery in the case has focused on Plaintiff's contention that key evidence is located in various e-mails that now exist only on backup tapes and possibly on other archived media. Although practice under the FRCP may differ in significant respects from practice under USDOL rules, Judge Scheindlin rulings in the Zubulake case provide significant background in regard to electronic discovery generally:

Zubulake v. UBS Warburg LLC, No. 02 Civ 1243 (SDNY May 18, 2003) (discussion of the problem of balancing the competing needs of broad discovery and manageable costs; Defendant had declined to search back-up tapes for deleted e-mails because of the cost; accessible and inaccessible data; cost-shifting analysis -- 7 factors).
Zubulake v. UBS Warburg LLC, No. 02 Civ 1243 (SDNY May 18, 2003) (in deposition of Defendant's electronics records manager - designated by Defendant as confidential - Plaintiff became concerned that certain of Defendant's records management practices were in violation of the SEA and SEC rules and requested leave to report her concerns on the ground that, as a licensed broker, she has an ethical obligation to report such matters; the court, however, found that Plaintiff had not established a clear duty to report and that an apparent attempt to gain leverage in the law suit was an improper motive and not grounds for removing the confidential designation).
Zubulake v. UBS Warburg LLC, No. 02 Civ 1243 (SDNY July 24, 2003) (application of cost-shifting analysis following sample restoration of subgroup of backup tapes).
Zubulake v. UBS Warburg LLC, No. 02 Civ 1243 (SDNY Oct. 22, 2003) (available at 2003 WL 22410619) (consideration of sanctions for failure to preserve electronic records; trigger date for duty to preserve attaches at the time that litigation becomes reasonably anticipated; scope of preservation of relevant documents; whose documents must be retained; what must be retained; elements to establish entitlement to adverse inference instruction -- obligation to preserve, culpable state of mind, relevance of destroyed documents).

TITLE VII

ADVERSE EMPLOYMENT ACTION; REQUIREMENT OF A MATERIALLY ADVERSE CHANGE IN TERMS OF EMPLOYMENT

In a Title VII action, White v. Burlington Northern & Santa Fe Railway Co., 2004 Fed. App. 0101P (6th Cir. Apr. 14, 2004), the Sixth Circuit reviewed that circuit's law on the meaning of an "adverse employment action." The court stated that Kocsis v. Multi-Care Management Inc., 97 F.3d 876 (6th Cir. 1996), is the seminal case in the 6th Circuit for defining adverse employment action. The court wrote:

In Kocsis v. Multi-Care Management Inc., this court considered the definition of adverse employment action in the context of a discrimination claim under the Americans with Disabilities Act. 97 F.3d 876, 885-87. Relying in part upon the Seventh Circuit's definition, this court held that a plaintiff claiming employment discrimination must show that she suffered "a materially adverse change in the terms of her employment." Id. at 885 (citing Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883 (7th Cir. 1989), which involved an age discrimination claim). A "mere inconvenience or an alteration of job responsibilities" or a "bruised ego" is not enough to constitute an adverse employment action. Id. at 886 (citing Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993), and Flaherty v. Gas Research Inst., 31 F.3d 451, 456 (7th Cir. 1994)).
Furthermore, according to Kocsis, "reassignments without salary or work hour changes do not ordinarily constitute adverse employment decisions in employment discrimination claims." Id. at 885 (citing Yates, 819 F.2d at 638, which applied to "temporary" reassignments). A reassignment without salary or work hour changes, however, may be an adverse employment action if it constitutes a demotion evidenced by "a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Id. at 886 (citing Crady, 993 F.2d at 136).

In White, the Plaintiff and the EEOC as amicus argued that the court should revise its definition to adopt the EEOC interpretation that "adverse employment action" in the context of a Title VII retaliation claim means "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a charging party or others from engaging in protected activity." The court, however, concluded that its definition accomplishes the purpose to Title VII's anti-retaliation provision while also balancing "the need to prevent lawsuits based on trivialities." The court therefore re-affirmed the definition developed in Kocsis and similar 6th Circuit decisions.

In considering whether a suspension without pay followed by reinstatement with back pay is an adverse employment action, however, the 6th Circuit rejected an earlier decision suggesting that it would follow the Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981) "ultimate employment decision" rationale.

[Nuclear and Environmental Whistleblower Digest XIII A]
[STAA Whistleblower Digest VI A]

ADVERSE EMPLOYMENT ACTION; TANGIBLE JOB DETRIMENT

In Hillig v. Rumsfeld, No. 02-1102 (10th Cir. Aug. 27, 2004), a Title VII case, the 10th Circuit held that any act that causes more than de minimis impact on a plaintiff's future employment opportunities may be actionable as retaliation. The court specifically disagreed with the district court's that an "adverse employment action," under Title VII, may be only those employment actions that result in "tangible harm" to the plaintiff. The court noted that there was split in the circuits on this issue.

ATTORNEY DISCIPLINARY PROCEEDINGS

[Nuclear and Environmental Whistleblower Digest IX M 2]
ATTORNEY MISCONDUCT; JURISDICTION OF ARB TO REVIEW SECTION 18.34(g)(3) SUSPENSION ORDER; DE NOVO REVIEW OF PROCEDURE AND FACTUAL AND LEGAL CONCLUSIONS RELATING TO ISSUE OF WHETHER THERE HAD BEEN MISCONDUCT; ABUSE OF DISCRETION REVIEW OF CHOICE OF SANCTION

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ had suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). The attorney and his client appealed to the ARB, which found that it had jurisdiction to review the section 18.34(g)(3) suspension because it occurred in relation to whistleblower proceedings over which the Secretary had delegated the responsibility to review the recommended decisions of ALJs. Because the conduct occurred in different types of cases in which the type of review conducted by the ARB varied, the ARB concluded that it would use the most comprehensive level of review -- i.e., de novo review -- of the procedure that the Associate Chief ALJ had followed for compliance with due process guidelines, and his factual findings and legal conclusions regarding the instances of misconduct. The Board, however, applied an abuse of discretion standard to the Associate Chief ALJ's choice of sanction.

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; ROLE OF THE OFFICE OF THE SOLICITOR IS TO REPRESENT THE DEPARTMENT'S INTERESTS

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ had suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). On appeal, the Solicitor of Labor had filed an amicus brief on behalf of the Assistant Secretary for OSHA in support of the suspension. The attorney and his client filed a motion to disqualify the Solicitor as the Assistant Secretary's representative. The ARB denied the motion noting, inter alia, that "the Solicitor's representation of the Assistant Secretary in this appeal from [the Associate Chief ALJ's] disqualification of Mr. Slavin pursuant to Section 18.34(g)(3) accords with the Secretary's directive in Rex v. Ebasco Servs. that the Solicitor represent the Department's interests in attorney disqualification proceedings. Rex, No. 87-ERA-6, slip op. at 4 (Sec'y Oct. 3, 1994)."

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; 29 C.F.R. § 18.34(g)(3) PERMITS A BAR OF AN ATTORNEY FROM APPEARING IN FUTURE CASES

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ had suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). On appeal, the attorney and his client argued that § 18.34(g)(3) does not authorize entry of an order barring a representative from appearing in future cases. The ARB rejected this argument based on In re Edward A. Slavin, Jr., ARB No. 02-109, ALJ No. 2002-SWD-1 (ARB June 30, 2003) (distinction between 18.34(g)(3) and 18.36 proceedings) and Rex v. Ebasco Servs., 1987-ERA-6 and 40 (Sec'y Oct. 3, 1994) (Secretary's order agreeing to conduct a single proceeding to resolve question of attorneys' conduct rather than serial proceedings before each ALJ before which those attorneys appeared).

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; WHAT CONSTITUTES ADEQUATE DUE PROCESS UNDER SECTION 18.34(g)(3)

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ had suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). On appeal, the ARB considered whether this procedure complied with due process safeguards as interpreted within the context of attorney disciplinary proceedings.

The Board observed that section 18.34(g)(3) does not delineate a step-by-step process for rendering a determination. The Board carefully examined the Associate Chief ALJ's procedure and found that it comported with due process. Specifically, the ALJ's Notice of the Judicial Inquiry clearly identified the evidentiary basis for the section 18.34(g)(3) inquiry and the types of professional misconduct that were at issue. The Board found that the Notice also explained the procedure that would be followed and the means by which the attorney could defend against the charges, including the prerequisites for the scheduling of an evidentiary hearing. The ARB observed that because of the lack of detail in section 18.34(g)(3), it had been especially important to provide this information to the attorney. Finally the Board found that the Notice unambiguously advised the attorney of the consequences of a failure to timely respond, a failure to meet the prerequisites for an evidentiary hearing, and a failure to successfully defend against the charges.

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; ORAL, EVIDENTIARY HEARING NOT REQUIRED IF ATTORNEY FAILS TO PRESENT THE EXISTENCE OF A GENUINE ISSUE OF MATERIAL FACT; PRIOR JUDICIAL RULINGS ON MISCONDUCT AS EVIDENCE

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ had suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). In the Notice of Judicial Inquiry, the judge had informed the attorney of the charges, which were based on holdings of DOL ALJs, the ARB, and state and federal courts in prior proceedings. The judge explained the procedure that would be followed. The judge instructed, inter alia, that the attorney needed to present a genuine issue of material fact on the charges in order for an oral, evidentiary hearing to be convened, noting that in the prior cases the attorney had not denied that he had engaged in the conduct cited by the presiding officers but rather had typically defended based on First Amendment and justification defenses. The judge also informed the attorney that he would not be permitted to re-litigate any matter that he had been afforded a full and fair opportunity to contest in the case in which the misconduct occurred. When the attorney, in his response to the Notice, did not identify any evidence to present on any fact issues, the judge decided the case on the existing record without first convening an oral, evidentiary hearing.

On appeal the attorney and his client argued that the judge erred by failing to conduct an oral hearing. The Board, however, found that the Associate Chief ALJ's application of threshold requirements before such a hearing would be scheduled was "consistent with the procedural safeguards afforded an attorney who is the subject of a disciplinary proceeding. Cf. In re Keiler, 316 NLRB 763, 764-66 (1995) (discussing basic due process safeguards provided attorneys in disciplinary proceedings and by the agency's procedural rules, and concluding that attorney's response to the Board's show cause order failed to demonstrate a basis for an "oral or trial-type hearing"). The Board also found no error in informing the attorney that he would not be allowed to re-litigate matters in which he had been afforded an opportunity to challenge in the prior proceedings, noting that this was consistent with principles of issue preclusion, and that the Associate Chief ALJ had reviewed the "factual circumstances" evidenced by the court documents that were properly in the record. Moreover, the Board stated that "court or agency generated documents, including decisions and orders, that address an attorney's questionable conduct in a particular case may provide competent evidence in a later disciplinary proceeding regarding whether the attorney engaged in such conduct." (citations omitted).

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT BEFORE OALJ; PREPONDERANCE OF THE EVIDENCE STANDARD OF PROOF

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3), finding that documents from the official records of federal courts, state courts and DOL administrative proceedings provided "clear and convincing" evidence of misconduct. In an amicus brief on appeal, the Assistant Secretary for OSHA argued that the judge need not have applied a "clear and convincing" standard of proof, but should have used a preponderance of the evidence standard. The ARB agreed that the Secretary of Labor's decision in Rex v. Ebasco Servs. 1987-ERA-6 (Sec'y Oct. 3, 1994), provides for a preponderance of the evidence standard of proof in attorney misconduct cases before OALJ, but also agreed with the judge that the documentation provided such clear and convincing evidence, thus obviating any need to review the evidence under a lower standard.

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; USE OF ABA MODEL RULES OF PROFESSIONAL CONDUCT TO DETERMINE WHETHER THERE WAS MISCONDUCT AND THE ABA STANDARDS FOR LAWYER DISCIPLINE AND DISABILITY PROCEEDINGS TO DETERMINE THE SANCTION

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). The ARB found that the judge properly used the Model Rules of Professional Conduct in considering whether the attorney's conduct was improper. In addition, the Board found that the judge did not abuse his discretion in relying on the ABA Standards for Lawyer Discipline and Disability Proceedings (1992) to determine the time period for which the Section 18.34(g)(3) bar should be imposed.

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; FIRST AMENDMENT CONSTRAINED WHEN FILING DOCUMENTS OR OTHERWISE COMMUNICATING WITH A COURT

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3). The attorney's chief defense was that his conduct was protected under the First Amendment. On review, the ARB agreed with the judge that much of the conduct for which the attorney was being suspended, like failing to file pleadings in a timely manner, with proper information and in the required format, could not reasonably be construed as speech protected by the First Amendment. The ARB also found that the judge properly concluded that the attorney's speech-based misconduct was subject to the constraints imposed on the language used by attorneys when filing documents with or otherwise communicating with a court, and thereby properly rejected the attorney's contention that the Section 18.34(g)(3) proceeding had been undertaken as retaliation for the attorney's exercise of his First Amendment rights through public criticism of the DOL whistleblower program. The ARB's decision includes several pages of discussion of the balance between protecting the integrity of the adjudicative process and the First Amendment.

[Nuclear and Environmental Whistleblower Digest IX M 2]
[STAA Whistleblower Digest II M]
ATTORNEY MISCONDUCT; FIVE YEAR DISQUALIFICATION APPROPRIATE WHERE THE ATTORNEY ENGAGED IN CONDUCT THAT BREACHED DUTIES TO HIS CLIENTS AND THE LEGAL SYSTEM AND WHERE THERE WERE NO MITIGATING CIRCUMSTANCES BUT A NUMBER OF AGGRAVATING FACTORS

In Edward A. Slavin, Jr., ARB No. 04-088, ALJ No. 2004-MIS-2 (ARB Apr. 29, 2005), the Associate Chief ALJ suspended an attorney from practice before OALJ under 29 C.F.R. § 18.34(g)(3) for an indefinite period of no less than five years. The ARB, employing an abuse of discretion standard of review in regard to the choice of sanction, found that the judge properly relied on the ABA Standards for Lawyer Discipline and Disability Proceedings (1992) to determine the time period for the sanction, that the judge carefully followed the comprehensive formula that the ABA standards provide, thoroughly explained his conclusions that the attorney had breached duties to his clients and to the legal system, and had explained his findings that there were no factors that weigh against imposing a severe sanction and that there were a number of aggravating factors that provide further support for the sanction. The Board therefore affirmed the five year disqualification.