Barrett Riess worked for Nucor Corporation as Traffic Department Manager from August 4, 2002, until Nucor discharged him on January 15, 2007. He worked in Grapeland, Texas. He had no discipline until he was fired. James Landrum, Grapeland Division Vice President and General Manager, was Riess’s supervisor and made the decision to fire Riess. On January 9, 2007, Riess raised a concern with Landrum about one of the supervisors working under him, Joey Word. Specifically, he reported that Word allowed drivers to use two trucks that did not have annual safety inspection stickers. He reported that Word quit because Riess had been too pushy about following safety rules. Landrum testified that he never before thought of firing Riess, but on January 15, 2007, he decided to fire Riess because Riess had an abrasive management style and could not get along with others. Riess filed a complaint with OSHA under the Surface Transportation Assistance Act (STAA). An Administrative Law Judge (ALJ) found Landrum was credible and ruled against Riess.
On November 30, 2010, the Department of Labor's Administrative Review Board (ARB) found that the ALJ had not made enough findings of fact about Riess's claim of pretext. It remanded the case to the ALJ to reconsider the finding about whether Riess's protected activity caused his discharge. In doing so, the ARB held that ALJ's should apply the current version of the STAA, even to cases that arose before the August 2007 amendments. Those amendments made it easier to prove retaliation by requiring complainants to show that protected activity was a "contributing factor" in the adverse action. If the complainant succeeds, then the employer must show, by clear and convincing evidence, that it would have made the same decision even if there was no protected activity. "[W]e should apply the law in effect at the time of our decision," the ARB says on page 4.
Next, the ARB considered the central issue of causation. "There are alternative methods by which an employee can prove that protected activity was a contributing factor to an adverse employment action." The ARB decision focused on "temporal proximity," the closeness in time of the adverse action to the protected activity. "The closer the temporal proximity is, the stronger the inference of a causal connection. Such indirect evidence can establish retaliatory intent." The ARB described the indicators of causation here as follows:
Riess’s long tenure with Nucor, his lack of a history of disciplinary problems as well as the suspicious timing of his termination (two days after protected activity) all provide strong circumstantial evidence of a link between the protected activity and the adverse action. In addition, Riess’s safety complaints were intricately intertwined with the alleged conflict that spiraled into Riess’s dismissal.
This language is particularly helpful to the large number of cases where an employer resorts to vague allegations that a whistleblower is hard to get along with. The ARB looked specifically at Nucor's explanations for discharging Riess. On page 6, it stated, "Vague and subjective reasons about personality issues may also suggest that they are pretextual or in reality complaints about whistleblowing." What employer would decline to say that a whistleblower is abrasive or hard to get along with? These statement can now be a part of showing that raising safety concerns contributes to causation. The ARB decision concludes as follows on page 7:
In sum, this case involves circumstances that create a very strong inference of retaliatory termination of employment, making the findings on causation and pretext evidence essential to a resolution of Riess’s claim. While the record indicates that Riess’s performance as a manager needed improvement, it also indicates that he was a long-term employee, with no history of discipline problems, who was discharged only a few days after making a STAA-protected complaint.
This decision is a good sign for whistleblowers with cases pending before the ARB. This ARB is willing to get into the reeds of the totality of circumstances, and weigh whether protected activity was the true cause of an adverse action. This ARB pays attention to the improved burdens of proof in the modern whistleblower laws. This ARB is willing to look past an ALJ's findings when the record reveals indicators of deception. While the ARB has not yet picked up the pace of its decisions, this one was worth the wait.
ARB members Luis A. Corchado, E. Cooper Brown (Vice-Chair of the ARB) and Joanne Royce signed this decision. Congratulations to Riess and his attorney, Dennis G. Herlong of Houston, Texas.