Today, the U.S. Department of Labor issued a summary of the September 2012 decisions of its Administrative Review Board (ARB).  The twelve decisions issued in September cover important procedural issues involving the time limits for filing complaints and petitions for review to the ARB, considering motions for summary decision, and approving settlement agreements. Read more about these decision in the continuation of this blog post.

In Franchini v. Argonne National Laboratory, ARB No. 11-006, ALJ No. 2009-ERA-14 (ARB Sept. 26, 2012), the ARB reversed a summary decision on the merits.  Recognizing that the regulation is less than clear, the ARB explained two types of summary decision:

One method is to assert that the complainant lacks evidence to support an essential element of his case. In such a case, the complainant must specifically identify facts that, if true, could meet his burden of proof at an evidentiary hearing on the merits. Another method of testing the pleadings is for the respondent to attach affidavits or other documents and evidence, which purport to state the undisputed facts and challenge the complainant to produce admissible, contrary evidence that creates a genuine issue of fact. See 29 C.F.R. § 18.40(c).

 The ARB added:

The burden of producing evidence "is not onerous and should preclude [an evidentiary hearing] only where the record is devoid of evidence that could reasonably be construed to support the [complainant’s] claim." White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008); Anderson v. Liberty Lobby, Inc., 477 U.S. at 252.

The ARB acknowledged that summary decision is poorly suited to the issue of causation which is rooted in the true motives of the employer and its agents:

Obviously, the issue of causation in discrimination cases involves questions of intent and motivation when the complainant argues that the employer’s asserted reasons were not the real reasons for its actions. Summary decision on the issue of causation is even more difficult in ERA whistleblower cases where Congress made it "easier for whistleblowers to prevail in their discrimination suits," requiring only that the complainant prove that his protected activity was "a contributory factor" rather than the more demanding causation standards like "motivating factor," "substantial factor" or "but for" (determinative factor) causation. Trimmer v. U.S. Dep’t of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999). Contributory factor means any factor which, alone or in connection with other factors, "tends to affect in any way the outcome of the [employment] decision." Even where a respondent asserts legitimate, nondiscriminatory reasons for its actions, a complainant can create a genuine issue of fact by pointing to specific facts or evidence that, if believed, could (1) discredit the respondent’s reasons or (2) show that the protected activity was also a contributing factor even if the respondent’s reasons are true.

The ARB listed examples of the types of evidence that can support a finding of causation:

[I]nconsistencies in the respondent’s reasons could present sufficient circumstantial evidence for the ALJ to reject the employer’s asserted reasons and, if sufficiently persuasive, accept the complainant’s claim that protected activity was a contributory factor. Other circumstantial evidence may include evidence about motive, bias, work pressures, past and current relationships of the involved parties, animus, temporal proximity, pretext, and material changes in employer practices, among other types of evidence.

These last five words make clear that the list is not the complete list, and other circumstances of an individual case can support a finding of causation. On temporal proximity, the ARB stated that the length of time alone is not determinative, "but context matters." ALJs must consider the nature of the protected activity and the evolution of the adverse decision.

At the core of the case, the ARB considered the employer’s claim that it fired Franchini not for his protected activity but rather because he disobeyed an order to turn over his tape recording.  The ARB held that the ALJ failed to consider circumstances involving the legality of the employer’s order.  Even if this alleged insubordination was the real reason, that does not exclude the possibility that it might still be connected to the protected activity. Although the ARB did not cite the Federal Circuit’s decision in Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), it has reached a similar conclusion about what "clear and convincing" really means. Franchini prevailed in this appeal without representation by a lawyer.

In Alexander v. Atlas Air, Inc., ARB No. 12-030, ALJ No. 2011-AIR-3 (ARB Sept. 27, 2012), the ARB found no error in granting a summary judgment dismissing a case where the complainant failed to respond with record evidence, such as affidavits or declarations, supporting his claims.

In Valenti v. Shintech, Inc., ARB No. 11-038, ALJ No. 2010-CAA-8 (ARB Sept. 19, 2012), and Halm v. Schwan’s Home Service, Inc., ARB No. 11-005, ALJ No. 2009-STA-34 (ARB Sept. 28, 2012) the ARB found that substantial evidence supported the ALJ’s conclusions that the Complainant’s protected activity was not a motivating factor in the Respondent’s decision to terminate the Complainant’s employment. When compared with the outcome in the Franchini case, the message for ALJs is clear:  the ARB wants causation decided on the full record of a hearing, not by motion.

In Gonzales v. J.C. Penney Corp., Inc., ARB No. 10-148, ALJ No. 2010-SOX-45 (ARB Sept. 28, 2012), the ARB affirmed an ALJ decision approving a settlement agreement.  It did so, however, while making clear that OSHA and ALJs are required to have the entire agreement before approving it.  The parties had submitted a redacted version to OSHA that blacked out the dollar amounts to be paid.  The ARB said that is improper.  DOL must have and review the entire agreement.  The error here was cured by submission of the entire agreement to the ALJ. The ARB also rejected the complainant’s claims that the Dodd-Frank Act barred settlement of SOX claims, that her dispute with her attorney should void the agreement, and that the agreement was unlawful because it barred rehiring the complainant. The ARB said that it would follow Macktal v. Brown & Root, Inc., 923 F.2d 1150 (5th Cir. 1991), and not any doctrines of law from the applicable state. Judge Luis Corchado added a concurring opinion to explain his view that the ALJ erred in failing to give notice to the parties and an opportunity to respond on whether the regulations should be waived. The regulation at issue is 29 C.F.R. § 1980.111(a) which says that approval of a settlement agreement terminates the case, whether it is by OSHA or the ALJ.

On timeliness issues, complainants did not fair well last month. In Wallum v. Bell Helicopter Textron, Inc., ARB No. 12-110, ALJ No. 2009-AIR-20 (ARB Sept. 19, 2012), the complainant had died and his widow filed a petition for review six months after the ALJ dismissal.  The ARB made clear that ill health can be a basis for equitable tolling, but that in this case, the widow had not explained how her husband’s ill health had prevented him or her from filing the petition for review sooner.

In Carvajal v. Stevens Transport, Inc., ARB No. 12-083, ALJ No. 2012-STA-19 (ARB Sept. 12, 2012), complainant’s travel outside the US did not excuse missing the deadline to file the petition for review.

In Droog v. Ingersoll-Rand Hussman, ARB No. 11-075, ALJ No. 2011-CER-1 (ARB Sept. 13, 2012), the ARB affirmed a dismissal of a blacklising claim because it missed the 30-day time limit.

All in all, the ARB gave one whistleblower his day in court and left eleven others disappointed.  Of course, scores of other whistleblowers are still waiting for ARB decisions.