Decisions of the DOL Administrative Review Board November-December 2016
The Administrative Review Board issues final agency decisions for the Secretary of Labor in cases arising under a wide range of worker protection laws, primarily involving environmental, transportation, and securities whistleblower protection. The below list includes decisions of the Administrative Review Board from November – December 2016 as reported in the USDOL/OALJ Reporter:
November 2016
- McNiece v. Dominion Nuclear Connecticut, Inc., ARB No. 15-083, ALJ No. 2015-ERA-5 (ARB Nov. 30, 2016)
Final Decision and Order
Summary:[Nuclear and Environmental Whistleblower Digest VII A 2] SUMMARY DECISION; ALJ’S DECISION TO LIMIT DISCOVERY IS REVIEWED FOR ABUSE OF DISCRETION
In McNiece v. Dominion Nuclear Connecticut, Inc., ARB No. 15-083, ALJ No. 2015-ERA-5 (ARB Nov. 30, 2016), the Respondent filed before the ALJ a motion to dismiss on three grounds, one of which was that the complaint was not timely. The ALJ treated the motion as a motion for summary decision, and granted the Complainant 30 days to conduct limited discovery pertaining to the issues raised in the Respondent’s motion. Later, the ALJ granted the Respondent’s motion for a protective order limiting discovery to the issues raised in the motion for summary decision. The Complainant requested reconsideration, arguing that discovery should be unlimited. The ALJ denied the request finding that discovery was properly limited at summary decision stage of proceeding. The ALJ granted an enlargement of time for discovery and argument. The only additional evidence submitted by the Complainant were copies of a settlement reached between the Complainant and the Respondent, and a later settlement reached between the Complainant’s wife and the Respondent. The ALJ found that the only adverse action alleged within the 180-day limitations period was the Complainant’s wife’s purported “dismissal” or “forced resignation. ” The ALJ found, however, that the Complainant’s wife had knowingly and voluntarily entered into a settlement, approved by an ALJ, in which she had agreed to end her employment relationship with the Respondent. The ALJ found that no adverse action had occurred within the 180-day limitations period and dismissed the complaint.
On appeal, the Complainant’s only argument was that the ALJ abused her discretion in restricting discovery. The ARB reviewed the Complainant’s discovery requests, and the ALJ’s ruling on the Respondent’s motion for a protective order. The ARB then stated:
To establish that the ALJ abused her discretion in limiting discovery, McNiece must, at a minimum, show how further discovery could have permitted him to rebut DNC’s contentions that he failed to timely file his complaint. But other than general arguments that limiting discovery made it “impractical” for McNiece to obtain crucial evidence, he failed to address specifically how the rejected interrogatories or documents would have led to evidence that would have raised a material fact question regarding the timeliness of his complaint. The ALJ reviewed each of the interrogatories and document requests and explained why she rejected them. McNiece failed to address, much less rebut, any of her reasons.
Slip op. at 7-8 (footnote omitted). The ARB also noted that the Complainant’s discovery requests not subject to the ALJ’s protective order had not led to discovery of admissible evidence probative to demonstrate that the complaint was timely. The ARB thus was not convinced that the interrogatories and discovery requests subject to the protective order would have been any more probative.
Accordingly, the ARB found no abuse of discretion by the ALJ in limiting discovery, and affirmed her dismissal of the case.
- Butler v. Neier, Inc., ARB No. 16-086, ALJ No. 2014-STA-68 (ARB Nov. 21, 2016)
Order Dismissing Untimely Appeal
- Meadows v. BNSF Railway Co., ARB No. 16-081, ALJ No. 2014-FRS-45 (ARB Nov. 15, 2016)
Order Dismissing Appeal
Summary:The ARB dismissed the Complainant’s appeal for abandonment because he failed to respond to the ARB’s order to show cause why he failed to file an opening brief.
- Heckman v. M3 Transport LLC, ARB No. 16-083, ALJ No. 2012-STA-59 (ARB Nov. 10, 2016)
Order Dismissing Interlocutory Appeal
Summary:INTERLOCUTORY APPEAL; ALJ’S DISCOVERY ORDERS ARE GENERALLY NOT APPEALABLE COLLATERAL ORDERS
In Heckman v. M3 Transport LLC, ARB No. 16-083, ALJ No. 2012-STA-59 (ARB Nov. 10, 2016), the ARB found that the Complainant failed to establish that he was entitled to pursue an interlocutory appeal where the appeal was filed five months after the ALJ issued the order from which the interlocutory appeal was sought and was therefore not timely; the Complainant had not obtained certification of the issue as provided in 28 U.S.C.A. § 1292(b); and the discovery issue raised by the Complainant was not a controlling legal issue, but instead questioned the ALJ’s discretionary determination, based upon findings of fact and law, unsuitable for interlocutory review. The Board noted that it had “held that discovery orders are readily subject to review upon appeal and therefore generally are not considered to be appealable collateral orders.” The Board stated that if the Complainant believed “that the ALJ’s discovery orders constituted an abuse of discretion that prejudiced his case, he may so argue upon appeal, if and when, the ALJ issues a decision and order denying his complaint.”
December 2016
- Williams v. Grand Trunk Western Railroad Co., ARB Nos. 14-092, 15-008, ALJ No. 2013-FRS-33 (ARB Dec. 5, 2016) (as corrected by erratum)
Erratum and Final Decision and Order
- PDF (slip opinion)
Summary:ARB DECLINES TO ACQUIESCE IN THIRD CIRCUIT’S FINDING IN BALA v. PATH THAT FRSA SECTION 20109(c)(2) APPLIES ONLY TO TREATMENT PLANS FOR ON-DUTY INJURIES
In Williams v. Grand Trunk Western Railroad Co., ARB Nos. 14-092, 15-008, ALJ No. 2013-FRS-33 (ARB Dec. 5, 2016) (as corrected by erratum), the Complainant had from birth suffered from anxiety, migraine headaches, and depression. The Complainant, a locomotive engineer since 1995, sought treatment for these conditions since 2005, and had been prescribed medication. In 2011, after the Complainant had called in sick or took FMLA leave a number of times, the Respondent investigated, and—despite documentation from the treating physician showing that the Complainant had been absent due to the physician’s treatment plan for the ongoing conditions and that the condition interfered with the Complainant’s job duties—fired the Complainant for failing to work on a regular basis. The Complainant filed an FRSA complaint, and the ALJ found in favor of the Complainant, applying the ARB’s decision in Bala v. Port Authority Trans-Hudson Corp., ARB No. 12-048, ALJ No. 2010-FRS-26 (ARB Sept. 27, 2013).
On appeal, the ARB acknowledged that the Third Circuit had reversed and remanded the its decision in Bala v. Port Authority Trans-Hudson Corp. v. Sec’y, U.S. Dep’t of Labor, 776 F.3d 157, 160 (3d Cir. 2015). The Third Circuit held that Section 20109(c)(2) applies only to treatment plans for on-duty injuries. The Third Circuit had found that “subsection (c)(1) is a ‘substantive provision’ while subsection (c)(2) is an ‘anti-retaliation provision. ’ ” Williams, supra, slip op. at 4. The ARB in Williams, however, disagreed with the Third Circuit’s interpretation of the statute. The ARB noted that in Bala it had found that “the structure of section 20109(c) in effect provides protection with two substantive provisions, the first for seeking medical treatment and the second for efforts to comply with the treatment plan. While Congress specifically limited the first provision to seeking medical treatment for work-related injuries, it did not do so for the second provision providing protection to employees for following a treatment plan. ” Id. The ARB thus declined to acquiesce in the Third Circuit’s decision in Bala outside the Third Circuit, and affirmed the ALJ’s decision.
WHAT CONSTITUTES A PHYSICIAN’S TREATMENT PLAN UNDER THE FRSA; ADVICE TO TAKE MEDICATION AND STOP WORKING WHEN EXPERIENCING SYMPTOMS, AND STATEMENT OF THESE INSTRUCTIONS IN FMLA LEAVE FORM FOUND SUFFICIENT
In Williams v. Grand Trunk Western Railroad Co., ARB Nos. 14-092, 15-008, ALJ No. 2013-FRS-33 (ARB Dec. 5, 2016) (as corrected by erratum), the Complainant had from birth suffered from anxiety, migraine headaches, and depression. The Complainant, a locomotive engineer since 1995, sought treatment for these conditions since 2005, and had been prescribed medication. In 2011, after the Complainant had called in sick or took FMLA leave a number of times, the Respondent investigated, and—despite documentation from the treating physician showing that the Complainant had been absent due to the physician’s treatment plan for the ongoing conditions and that the condition interfered with the Complainant’s job duties—fired the Complainant for failing to work on a regular basis. The Complainant filed an FRSA complaint, and the ALJ found in favor of the Complainant, applying the Board’s decision in Bala v. Port Authority Trans-Hudson Corp., ARB No. 12-048, ALJ No. 2010-FRS-26 (ARB Sept. 27, 2013). Although the ARB’s decision in Bala had been reversed by the Third Circuit in Bala v. Port Authority Trans-Hudson Corp. v. Sec’y, U.S. Dep’t of Labor, 776 F.3d 157, 160 (3d Cir. 2015), the ARB declined to acquiesce in that decision outside the Third Circuit.
On appeal, the Respondent contended that the Complainant was not under a treatment plan because the physician’s treatment instructions were just general advice. The ARB rejected this contention, noting that it had “held in Santiago v. Metro-North Commuter R.R. Co., Inc., ARB No. 10-147, ALJ No. 2009-FRS-011 (ARB July 25, 2012), that the term ‘ treatment plan’ is generally defined as the management and care of a patient to combat disease or injury and is ‘commonly used to include not only medical visits and medical treatment, but also physical therapy and daily medication, among other things. ’ ” (footnote omitted). The ARB found that here, the physician had advised the Complainant that “when he experienced symptoms from his anxiety, depression, and migraines that he should treat the symptoms, take the prescription medication Xanax, and not work. ” Williams, supra, slip op. at 5. The ARB stated that “ [t]he fact that Dr. Bernick’s instructions were outlined on a FMLA leave form does not negate their identification as a treatment plan, but rather acts as evidence that Grand Trunk had notice of the plan because Dr. Bernick’s recertification of the need for medical treatment of Williams’s conditions did not substantially change through the repeated applications for FLMA. ” Id.
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