Heyward v. Benore Logistic System, Inc., ARB No. 2023-0023, ALJ No. 2020-STA-00117 (ARB July 29, 2023) (per curiam) (Decision and Order)
[STAA Digest V A]
PROTECTED ACTIVITY; REFUSAL TO SUBMIT TO A RANDOM DRUG TEST IS NOT PROTECTED ACTIVITY UNDER THE STAA, 49 U.S.C. § 31105
In Heyward v. Benore Logistic System, Inc., ARB No. 2023-0023, ALJ No. 2020-STA-00117 (ARB July 29, 2023) (per curiam), the ARB affirmed and adopted the ALJ’s Decision and Order finding that Complainant’s refusal to submit to a drug test was not protected activity. In Heyward v. Benore Logistic System, Inc., 2020-STA-00117 (ALJ Mar. 16, 2023), Complainant had alleged in his STAA complaint that he refused to submit to a urinalysis because the manner in which it was conducted would have been a violation of his privacy under the Department of Transportation’s rule at 49 C.F.R. § 40.43. The ALJ, however, determined that refusal to submit to a random drug test is not an enumerated protected activity under the STAA, 49 U.S.C. § 31105, citing the ARB’s decision in Bergman v. Schneider National, ARB No. 03-155, ALJ No. 2004-STA-00019 (ARB Apr. 29, 2005), and therefore the complaint must be dismissed for failure to allege or prove an essential element of a STAA complaint.
Nevada Chapter of the Associated General Contractors of America, Inc., ARB No. 2020-0058 (ARB July 29, 2023) (per curiam) (Decision and Order)
WAGE DETERMINATIONS BASED ON STATEWIDE DATA WHERE STATE AGENCY HAD NOT TIMELY PARTICIPATED IN WAGE SURVEY; ARB FOUND THAT ADMINISTRATOR HAD GIVEN STATE AGENCY SUFFICIENT ENCOURAGEMENT TO PARTICIPATE, WAS NOT REQUIRED TO MAKE AN ADDITIONAL EFFORT THAT GET THAT AGENCY TO PARTICIPATE; AND WAS NOT EMPOWERED TO COMPEL PARTICIPATION
WAGE DETERMINATIONS BASED ON STATEWIDE DATA; ARB FOUND THAT ADMINISTRATOR DID NOT ABUSE HER DISCRETION IN DECLINING TO CONSIDER STATE AGENCY’S DATA THAT WAS SUBMITTED AFTER THE SURVEY DEADLINE AND THAT WAS NOT IN USEABLE FORM
In Nevada Chapter of the Associated General Contractors of America, Inc., ARB No. 2020-0058 (ARB July 29, 2023) (per curiam), the Administrator conducted a wage survey to establish prevailing wage rates for highway projects in Nevada. Essentially, the lack of participation by the Nevada Office of the Labor Commissioner (NOLC) during the survey period resulted in several wage determinations for the Northern part of Nevada being based in part on data from the area around Las Vegas in the southern part of the State. Petitioners argued before the ARB that the Administrator failed to properly investigate whether NOLC possessed relevant wage information during the survey, and that the Administrator erred by relying on statewide wage data to determine prevailing wage rates for certain localities. The ARB determined that the Administrator acted within her discretion on both regards. The Administrator had given NOLC adequate invitations, notices, and a warning about the consequences of a failure to participate. Moreover, the regulations did not require the Administrator to require interested parties, including public officials like the NOLC, to respond -- and do not provide the Administrator with the power to compel a response. The ARB noted that in “Coalition for Chesapeake Housing Development, . . . the Board confirmed that the Administrator possesses the authority and discretion to use group, super group, or even statewide data to determine prevailing wage rates in appropriate circumstances.” Slip op. at 13 (footnote omitted). The ARB found that the Administrator did not abuse her discretion in declining to consider NOLC wage determination because it was submitted after the survey deadline, and because it was not useable in the form submitted. The ARB also found that the Administrator exercised reasonable discretion when she used statewide data to calculate prevailing rates in this case.
Terrell v. J-Max Transportation Services, Inc., ARB No. 2023-0049, ALJ No. 2023-STA-00026 (ARB July 23, 2023) (per curiam) (Order Approving Withdrawal of Complainant's Petition for Review and Dismissing Appeal)
Pursuant to 29 C.F.R. §1978.111(c), the ARB granted Complainant's motion to withdraw his petition for review of the ALJ's Decision and Order Granting Summary Decision on Complainant's STAA whistleblower complaint.
Ellis v. Goodheart Specialty Meats, ARB No. 2023-0005, ALJ No. 2019-FDA-00006 (ARB July 19, 2023) (per curiam) (Decision and Order)
SUMMARY DECISION; APPEAL DISMISSED WHERE COMPLAINANT FAILED TO IDENTIFY SPECIFIC OBJECTIONS TO THE ALJ’S DECISION, AND FAILED TO CITE TO EVIDENCE THAT ESTABLISHED A GENIUNE ISSUE OF MATERIAL FACT ON ANY ELEMENT OF A FSMA RETALIATION CLAIM; MERE ALLEGATIONS OF MALFEASANCE ARE INSUFFICIENT; MERE ASSERTION BY COMPLAINANT THAT SHE WILL BE ABLE TO PROVE HER CASE AT HEARING IS INSUFFICIENT
In Ellis v. Goodheart Specialty Meats, ARB No. 2023-0005, ALJ No. 2019-FDA-00006 (ARB July 19, 2023) (per curiam), Complainant’s appeal of the ALJ’s grant of summary decision was dismissed, and the ALJ’s decision affirmed, where Complainant failed to identify objections to the conclusions rendered by the ALJ in the D. & O., and failed to cite to evidence establishing a genuine issue of material fact for any element of a Food Safety Modernization Act (FSMA) claim. The ARB stated:
- On appeal, Complainant has not legally challenged any aspect or conclusion of the ALJ’s Amended D. & O. Instead, Complainant predominately focuses on unsupported allegations of malfeasance, many of which are not relevant to the underlying whistleblower statutory authority. Under 29 C.F.R. § 1987.110, a petition for the Board’s review should identify “the legal conclusions or orders to which they object, or the objections may be deemed waived.” We also note that “[d]espite the fact that [pro se] filings are construed liberally, the Board must be able to discern cogent arguments” on appeal. Here, Complainant has not met the requirement to raise identifiable objections. Thus, Complainant’s alleged errors are deemed waived.
Moreover, Complainant has not set forth any facts or cited to materials in the record to raise a genuine issue of material fact as to any of the elements of a successful FSMA claim. To survive a summary decision motion, Complainant “may not rest upon mere allegations or denials of such pleading.” Instead, Complainant must support her assertions by either “citing to particular parts of materials in the record,” or “showing that materials cited by an adverse party do not establish the presence or absence of a genuine dispute.” Complainant has not pointed to evidence in the record that establishes a genuine issue of material fact. Moreover, Complainant has not shown that Respondent’s evidence fails to establish the absence of a genuine issue of material fact. Therefore, Complainant has not presented a sufficient basis for reversal of the ALJ’s Amended D. & O.
Complainant also alleges that she can produce evidence in support of her case at a future hearing, but Complainant cannot overcome a motion for summary decision by generally claiming that future evidence will support her claim.
Slip op. at 4-5 (footnotes omitted).
Fordham v. Fannie Mae, ARB No. 2023-0029, ALJ No. 2010-SOX-00051 (ARB July 19, 2023) (per curiam) (Decision and Order)
REMAND; DETERMINING SCOPE OF MANDATE WHERE ARB SPECIFICALLY REPUDIATED LEGAL STANDARD ON CONTRIBUTORY FACTOR CAUSATION IN A LATER DECISION IN ANOTHER CASE; ARB ADOPTS ALJ’S DECISION APPLYING STANDARD FROM PALMER v. CANADIAN NAT’L RY
In Fordham v. Fannie Mae, ARB No. 2023-0029, ALJ No. 2010-SOX-00051 (ARB July 19, 2023) (per curiam), the ARB adopted the ALJ’s Decision and Order on Remand dismissing Complainant’s SOX complaints. In the original appeal to the ARB, the Board remanded based on its determination that the ALJ erroneously allowed Respondent’s “legitimate business reasons” for its actions to negate Complainant’s proof that her protected activity contributed to those actions. See Fordham v. Fannie Mae, ARB No. 2012-0061, ALJ No. 2010-SOX-00051, slip op. at 23 (ARB Oct. 9, 2014) (“Fordham I”). After the remand, the ARB issued its decision in Palmer v. Canadian Nat’l Ry., ARB No. 2016-0035, ALJ No. 2014-FRS-00154 (ARB Sept. 30, 2016) (reissued with full dissent, Jan. 4, 2017), in which the ARB overturned the legal standard that it had directed the ALJ to apply on remand in Fordham I.
On remand, a new ALJ was assigned to the case, who found that Complainant established contributory factor causation, but that Respondent established by clear and convincing evidence that it would have taken the same adverse actions in the absence of Fordham’s protected activities. The ARB found that the ALJ’s decision was well-reasoned, and attached and adopted that decision dismissing the complaints.
[Editor’s note: The case had been reassigned on remand after briefing by the parties, without objection by the parties, because of the original ALJ’s departure from OALJ. The newly assigned ALJ noted that the Board in Palmer had expressly repudiated the standard announced in Fordham I (that the factfinder should not consider evidence of an employer’s non-retaliatory reasons for its adverse action in determining the contributing-factor question), and instead should apply well-established precedent that permits factfinders to consider all evidence, including evidence of the employer’s non-retaliatory reasons, when determining contributory factor causation. The ALJ then considered law of the case doctrine, and its impact on the mandate for the remand, and determined that the original decision’s factual and legal determinations that had not been addressed in the ARB’s remand order were binding, with the exception that the legal standard from Palmer would be applied.
The ALJ noted that the ARB had determined in the Fordham I remand order that the original ALJ’s contributory factor determination was not supported by substantial evidence. Thus, the newly appointed ALJ proceeded to consider afresh whether Complainant established her burden of proof on contributory factor causation. The ALJ found that significant circumstantial evidence supported a finding of contribution, and that some direct evidence supported such a finding. The ALJ noted Respondent’s legitimate, non-retaliatory reasons for the adverse employment actions, but found that Complainant nonetheless met the non-demanding contributing factor causation standard by a preponderance of the evidence.
The ALJ then turned to the “same-action” defense, and found it highly probable that Respondent would have taken the same adverse actions in the absence of the protected activity. The record established Complainant’s continuing performance, conduct and attendance issues. The ALJ found particularly compelling the timeline of events showing that Respondent had engaged with Complainant on the need for her to improve her performance.]
Moss v. CSX Transportation, Inc., ARB No. 2020-0046, ALJ No. 2018-FRS-00001 (ARB July 20, 2023) (per curiam)
PROTECTED ACTIVITY UNDER THE FRSA, 49 U.S.C. § 20109(C); SUBSECTION (C) ONLY REQUIRES THE RAILROAD TO TAKE AN EMPLOYEE TO THE NEAREST HOSPTIAL IF REQUESTED, AND TO STAY OUT OF THE WAY OF THE MEDICAL PROVIDERS; THE ARB WAS NOT PERSUADED BY COMPLAINANT’S ARGUMENT THAT RESPONDENT’S FAILURE TO FOLLOW CRITICAL INCIDENT STRESS PLAN REQUIREMENTS WERE A DENIAL AND INTERFERENCE WITH COMPLAINANT’S MEDICAL TREATMENT, THE ARB FINDING INSTEAD THAT THESE ALLEGATIONS DID NOT IMPLICATE MEDICAL TREATMENT BUT WHETHER COMPLAINANT HAD A LEGAL RIGHT TO BE RELIEVED FROM DUTY AFTER A CRITICAL INCIDENT
In Moss v. CSX Transportation, Inc., ARB No. 2020-0046, ALJ No. 2018-FRS-00001 (ARB July 20, 2023) (per curiam), Complainant – a locomotive engineer – alleged in a his FRSA whistleblower complaint that Respondent failed to follow its critical incident stress plan when it failed to allow him to end his duties or offer him support services after an fatal incident when a person walked in front of the train Complainant was operating. After the incident, the road foreman informed the crew that a “recrew” was not available. Complainant replied that this was “wrong of the company to be doing this to us; we need to be taken off this train per policies and procedures.” Complainant, however, did not tell anyone that he was injured, request an ambulance, or explain why he should be taken off the train. Complainant’s injuries (a misaligned jaw and a cracked tooth) were not visible on the day of the incident, and Complainant did not discover them until later. The ALJ thus concluded that Respondent’s employees could not have interfered with Complainant’s medical treatment because they were unaware of his alleged injuries. The ALJ further noted the foreman’s testimony that the crew did not appear injured when he arrived at the scene, and that Complainant had not asked for medical attention, a therapist or counselor, or that he specifically be allowed to get off the train. The crew indicated to a field investigator that they were OK. The ALJ thus found that Complainant “did not make a request for medical treatment or transportation to medical treatment on the day of the incident,” and that the foreman and the field investigator “would not reasonably have known that Complainant needed immediate medical treatment at the time or that he needed transportation to a hospital.” Slip op at 5 (footnotes omitted). The ALJ concluded that Complainant had not shown that he engaged in FRSA protected activity. The ARB affirmed the ALJ’s decision.
The ARB described the relevant part of the FRSA whistleblower statute:
- Subsection (c) of the FRSA whistleblower statute provides that a railroad carrier “may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment” and that “[i]f transportation to a hospital is requested by an employee who is injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care.” The Board has interpreted this provision to mean that the “only affirmative duty created in section 20109(c) is for the railroad carrier to take the employee to the nearest hospital after a work injury if such a request is made” and “to stay out of the way of the medical providers.” The purpose of the subsection “is to ensure employees receive prompt medical attention if they are injured on the job.”
Id. at 6-7 (footnotes omitted).
The ARB determined that the ALJ’s findings that Complainant did not request medical assistance, and that foreman and the field investigator could not have known Complainant required medical attention, were supported by substantial evidence. In addition, the ARB found that “[b]ecause Complainant did not express any need for medical assistance, the ALJ … properly concluded that Respondent did not need to arrange for prompt transportation to a hospital, nor was there any medical treatment that Respondent could have interfered with. Therefore, the ALJ properly denied Complainant’s claim under section 20109(c) (1).” Id. at 7-8.
The ARB noted that Complainant appeared to argue on appeal that Respondent failed to make available certain evidence that would demonstrate that recrews and critical incident response team members were available to relieve the crew and provide counseling to Complainant on the day of the incident. The ARB found that Complainant failed to produce or identify such evidence in his brief, and that such evidence was not relevant because the record established that Respondent had not interfered with any medical treatment and that Complainant never requested transportation to a hospital.
Complainant argued that an FRA investigator’s findings that Respondent failed to follow critical incident stress plan requirements, and such violations effectively denied and interfered with Complainant’s medical treatment. The ARB, however, found that these allegations did not implicate medical treatment, but rather focused on whether Complainant had a legal right to be relieved from duty after a critical incident. The ARB found that none of the violations demonstrated an interference by Respondent with Complainant’s medical treatment or a failure to provide transportation to a hospital when requested.
Garvey v. Morgan Stanley, ARB No. 2020-0034, ALJ No. 2017-SOX-00030 (ARB July 16, 2023) (per curiam) (Decision and Order)
SOX § 806 DOES NOT HAVE EXTRATERRITORIAL APPLICATION; MORRISON v. NAT’L AUSTRALIA BANK ANALYSIS—FOCUS IS ON LOCATION OF PROTECTED ACTIVITY; ALTHOUGH COMPLAINANT POINTED TO TANGIBLE DOMESTIC CONTACTS, THE ARB DETERMINED THAT THEY WERE LESS CRITICAL FACTORS AND DID NOT ESTABLISH A DOMESTIC APPLICATION OF § 806
EXTRATERRITORIAL APPLICATION OF SOX § 806; COMPLAINANT’S CONTENTION THAT RESPONDENT HARASSED HIS U.S.-BASED ATTORNEY SUFFICIENT TO CAUSE THAT ATTORNEY TO WITHDRAW, EVEN IF TRUE, IT DID NOT ESTABLISH A DOMESTIC APPLICATION OF SOX
ADVERSE EMPLOYMENT ACTION; COMPLAINANT’S CONTENTION THAT RESPONDENT HARASSED HIS ATTORNEY SUFFICIENT TO CAUSE THAT ATTORNEY TO WITHDRAW NOT ACTIONABLE UNDER SOX § 8067 WHERE THERE WAS NO EVIDENCE THAT SUCH ALLEGED HARASSMENT IMPACTED THE TERMS AND CONDITIONS OF COMPLAINANT’S EMPLOYMENT OR CONSTITUTED BLACKLISTING
In Garvey v. Morgan Stanley, ARB No. 2020-0034, ALJ No. 2017-SOX-00030 (ARB July 16, 2023) (per curiam), at the time relevant to his SOX § 806 complaint, Complainant was employed by one of Respondent’s Asian subsidiaries, and lived and worked in Hong Kong. He raised allegations of market manipulation, insider trading, and U.S. tax fraud, and later – after an investigation of his allegations had commenced – he raised an additional allegation of a potential cover-up of his prior allegations. In his SOX complaint, he alleged that a few weeks later his compensation was reduced and he was encouraged to look for another job. Eventually, he resigned. The ALJ dismissed the complaint on the ground that § 806 does not apply to extraterritorial activity. The ARB affirmed. The ARB began by noting the relevant analytical framework:
- This case asks whether SOX’s protection reaches an employee working in Asia. The two-step framework in Morrison v. Nat’l Australia Bank, Ltd. requires analysis of: (1) whether the statute at issue extends extraterritorially and, if not, (2) whether the activity comprising the focus of the SOX protection occurred within the United States or outside of it. If the activity occurred within the U.S., then there is a permissible domestic application of the statute. However, if the activity occurred outside the U.S., then there is an impermissible extraterritorial application (again, where the relevant statute does not provide for such application) and the complaint must be dismissed.
The Board has recently held, building on the findings in Morrison, that Section 806 does not have extraterritorial application. Therefore, to allow the adjudication of the complaint before us, it must be a domestic application of Section 806. The Board has held that “the location of the employee’s permanent or principal worksite is the key factor to for us to consider.”
Slip op. at 3-4 (footnotes omitted).
In the instant case, it was undisputed that Hong Kong was Complainant’s principal place of employment during the relevant time. Complainant argued on appeal that there had been sufficient, tangible domestic contacts, such as daily interactions with supervisors and colleagues in NYC; a business trip to the U.S. to assist in the investigation of his allegations; that the fact that his allegations involved violations of U.S. laws affecting U.S. investors and shareholders. The Board was not persuaded. It stated:
- However, focusing on the principal place of employment, the Board has recently held that “the location of other conduct, which may be the subject of other requirements, regulation or prohibitions under SOX, becomes less critical, if not irrelevant.” Hence, we conclude Complainant’s argument that his domestic contacts during his employment with Morgan Stanley Asia Limited created a domestic application of Section 806 misses the mark.
Id. at 5, citing Hu v. PTC, Inc., ARB No. 2017-0068, ALJ No. 2017-SOX-00019, slip op. at 11 (ARB Sept. 18, 2019).
Complainant also contended that Respondent retaliated against him in the U.S. after his resignation by harassing his attorney concerning the ethics of disclosure of privileged information, thereby causing Complainant’s counsel to withdraw from the representation prior to a filing deadline, and thus causing Complainant to file his OSHA complaint pro se. The ARB, however, determined that even if such alleged post-employment retaliation or harassment had merit, “they still would not create a domestic application of Section 806 over his claim.” Id. at 5 (footnote quoted below). The ARB explained in a footnote that regardless of the location of the alleged harassment, Complainant’s allegations did not establish actionable adverse employment action:
- The location of the employee’s permanent or principal worksite is the key factor to determine whether a claim is domestic or extraterritorial. Regardless, the alleged conduct is not an adverse employment action that impacted the terms and conditions of his employment nor did Complainant present evidence that the alleged retaliation affected the terms or conditions of any subsequent employment. See Harvey v. Home Depot U.S.A, Inc., ARB Nos. 2004-0114 and -0115, ALJ Nos. 2004-SOX-00020 and -00036 (ARB June 2, 2006) (alleged harassment of a former employee must have impacted the terms or conditions of employment with respondent or have been blacklisting affecting terms or conditions with subsequent employer to be actionable as an adverse employment action).
Id. at 5, n.10.
Novick v. Morgan Stanley Smith Barney, LLC, ARB No. 2023-0024, ALJ No. 2020-SOX-00026 (ARB July 16, 2023) (per curiam) (Decision and Order)
The ARB dismissed Complainant's SOX appeal where he failed to timely file his appellate brief, and his explanations for that failure did not establish good cause to excuse the failure.
Yadav v. Frost Bank, ARB No. 2020-0048, ALJ No. 2020-SOX-00017 (ARB July 16, 2023) (per curiam) (Order Denying Reconsideration)
MOTION FOR RECONSIDERATION; ARB DETERMINES THAT THE OALJ RULE AT 29 C.F.R. § 18.70(c) GOVERNS DISMISSALS AND NOT THE FEDERAL COURTS RULES; CONTENTION THAT THE ALJ AND THE ARB SHOULD HAVE CONSIDERED MORE RECENT ADVERSE ACTIONS WAS NOT GROUNDS FOR RECONSIDERATION WHERE THE DISMISSAL WAS BASED ON THE COMPLAINT BEING TOO VAGUE AND WHERE COMPLAINANT HAD AMPLE OPPORTUNITY TO AMEND THE COMPLAINT BUT FAILED TO DO SO
In Yadav v. Frost Bank, ARB No. 2020-0048, ALJ No. 2020-SOX-00017 (ARB July 16, 2023) (per curiam), the ARB denied Complainant's petition for the ARB to reconsider its decision affirming the ALJ's dismissal of Complainant's SOX case for failure to state a claim upon which relief can be granted, and for lack of timeliness.
The ARB was not persuaded by Complainant's argument that the dismissal violated federal rules of procedure and Supreme Court precedent, the ARB finding that it was proper under the applicable regulation at 29 C.F.R. § 18.70(c).
The ARB was not persuaded that it, and the ALJ, erred by not considering more recent adverse actions, the ARB noting that it had agreed with the ALJ's conclusion that the allegations in the complaint and subsequent submissions were too vague. The ARB also noted that the ALJ had given Complainant every reasonable opportunity to amend his complaint to provide clarification but he failed to do so.