Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

Great Safety News! 

Yesterday, the House and Senate struck a deal and finalized language on the surface transportation bill and today, both houses passed it. The transportation bill will run through September 2014 and contains numerous truck safety provisions that were originally included in the Senate's transportation reauthorization bill, MAP-21.

 The transportation bill is a major victory for truck safety!

 These provisions will advance safety for all who drive on America's roadways and include:

• A mandate for a requirement of Electronic On-board Recorders (EOBRs) in all commercial vehicles;
• A 2 year study on the safety and infrastructure effects of truck size and weight in place of increases to truck weight and size limits;
• Provisions to address commercial driver safety: including driver medical qualifications, operator training, a driver's license program, driver's requirements and driver information systems;
• Provisions to establish a drug and alcohol clearinghouse for commercial motor vehicle drivers;
• Provisions to strengthen motor carrier oversight and enforcement, particularly to prevent reincarnated carriers;
• A provision to review and report on the appropriateness of minimum financial responsibility requirements (insurance);
• Provisions addressing the financial responsibility of freight-forwarders and brokers by directing rulemakings to establish minimum financial solvency and bonding requirements for these entities, and;
• Provisions to increase penalties for hazmat transportation violations, to strengthen enforcement of hazmat transportation and to develop criteria for oversight of hazmat transportation.

There are numerous truck safety champions who made these life-saving truck safety provisions possible. The TSC commends: 

• Senators Lautenberg, Rockefeller and Pryor for their leadership and commitment to truck safety by authoring and shepherding the Commercial Motor Vehicle Safety Enhancement Act first, into the Senate's bipartisan passed transportation bill, MAP-21 and then into the final transportation bill.
• Congressmen Barletta and Costello for their leadership in introducing and championing an amendment that removed truck size and weight increases in the House transportation bill and replaced them with a responsible study on the impacts of truck size and weight.
• Transportation Conference Chair Senator Barbara Boxer and Senator James Inhofe for their leadership in building bipartisan support of the truck safety provisions in the Senate transportation bill, MAP-21.

If you would like to thank the above Senators and Representatives for their hard work and commitment to truck safety, you can get their numbers at:

www.senate.gov and www.house.gov.

THANK YOU for all of your calls and emails to express the voice of safety. They made a tremendous difference and as a result, the final transportation bill advances truck safety.

Please continue to visit our website at www.trucksafety.com for updates on pending legislation and information on opportunities for actions.

Together, we are making a difference!

Please feel free to contact us if you have any questions.

Thanks,

John Lannen
Executive Director

It mattered not that Beecher had driven the truck before, knowing about the coolant leak. The law protects whistleblowers whenever they decide to take a stand for safety. It mattered not that Beecher used profanity to describe the truck. It mattered not that he left the premises when his boss had no work for him. That company records showed they knew about the coolant leak for weeks and failed to fix it showed their animus against the protected concern Beecher was raising.

OSHA ordered the companies to reinstate him to employment when Beecher's temporary disability ends. OSHA also ordered the companies to pay $38,447.80 in back pay, $20,000 for Beecher's emotional distress, $40,000 for punitive damages, $10,634.58 for attorney's fees, and interest. OSHA ordered the companies to refrain from further discrimination against Beecher for filing his complaint, and ordered the managers to sign and post a notice to employees about their rights under the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105.

The companies and Beecher can appeal the decision and ask for a hearing, but any request for hearing will not delay the order to reinstate Beecher. Congratulations to Beecher and his attorney, Paul Taylor of Burnsville, Minnesota (who gave permission to me to post this decision).

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.

OSHA announces interim final rules and

invites public comment on whistleblower procedures

WASHINGTON – The U.S. Department of Labor’s Occupational Safety and Health Administration published in the Aug. 31 Federal Register interim final rules that will help protect workers who voice safety, health, and security concerns. The regulations, which establish procedures for handling worker retaliation complaints, allow filing by phone as well as in writing and filing in languages other than English.

“When workers believe their employers are violating certain laws or government regulations, they have the right to file a complaint and should not fear retaliation. Silenced workers are not safe workers,” said Assistant Secretary of Labor for OSHA David Michaels. “Changes in the whistleblower provisions make good on the promise to stand by those workers who have the courage to come forward when they believe their employer is violating the law and cutting corners on a variety of safety, health and security concerns in the affected industries.”

The regulations, which cover workers filing complaints in the railroad, public transit, commercial motor carrier, and consumer product industries, also create greater consistency among various OSHA complaint procedures. The interim final rules establish procedures and time frames for handling complaints under the whistleblower sections of the Implementing Recommendations of the 9/11 Commission Act of 2007 and the Consumer Product Safety Improvement Act of 2008.

These regulations are effective immediately. Comments must be submitted by Nov. 1, 2010, and can be sent to www.regulations.gov, the Federal eRulemaking Portal, or by mail or fax.

OSHA enforces the whistleblower provisions of the OSH Act and 18 other statutes protecting employees who report violations of various commercial motor carrier, airline, nuclear power, pipeline, environmental, railroad, public transportation, securities, and health care reform laws. New fact sheets on these statutes and additional information will be available at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Both OSHA and an Administrative Law Judge (ALJ) ruled against Vinnett, who did not have a lawyer representing him. The ALJ said that since reporting his concerns was part of his job duties, his reports were not protected by the Energy Reorganization Act (ERA). The ARB disagreed. On p. 11, the ARB says, "there is nothing in the language of the ERA that carves out an exception limiting whistleblower protection based on an employee’s job duties. *** Nuclear safety is encouraged by protecting workers from retaliation because they report safety concerns." Quoting Mackowiak v. University Nuclear Sys., 735 F.2d 1159 (9th Cir. 1984), the ARB adds, “The [Secretary’s] ruling simply forbids discrimination based on competent and aggressive inspection work. In other words, contractors regulated by [the ERA] may not discharge quality control inspectors because they do their jobs too well.” The ARB said that the ALJ had not cited any authority for denying protection to "duty speech." The ALJ could have cited the controversial U.S. Supreme Court decision of Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti though, the high court indicated that its ruling denying protection applied only to claims against government officials under the First Amendment, and it did not apply to rights under whistleblower protection laws. The ARB does not mention Garcetti in this decision.

On page 13, the ARB made some helpful observations about discovery.  It noted that Vinnett did not have an attorney, but did complain about not getting all the information he wanted from the company.  The ALJ denied him permission to make a motion to compel that discovery. The ARB asked the ALJ to reconsider that decision, or directly order the company to provide requested documents like the outage log, weekly reports, Vinnett's personal log, and not to just accept the employer's word about which parts were relevant. The ARB makes clear that complainants are entitled to a fair opportunity to compel discovery before an ALJ issues summary judgment.

In Bucalo v. United Parcel Service, ARB No. 08-087, ALJ No. 2006-TSC-2 (ARB July 30, 2010), the ARB affirmed a dismissal of Samuel Bucalo's complaint under the Toxic Substances Control Act (TSCA) and the Surface Transportation Assistance Act (STAA). Bucalo has worked for UPS since 1979 in Sharonville, Ohio (near Cincinnati). He is also a union steward for the International Brotherhood of Teamsters, Local 100. In 2005, a coworker asked him to investigate a mercury spill. Bucalo testified that he was concerned about the safety of other employees (which would point to the weak protections of Section 11(c) of the OSHA Act, and not toward the environmental protections in TSCA). Bucalo found a UPS engineer who showed Bucalo how the affected area had been blocked off by caution tape. The next day, management suspended Bucalo and escorted him off the premises for creating a "chaotic situation." (What whistleblower complaint does not create a "chaotic situation" in the eyes of management?) UPS decided Bucalo should receive a one day suspension for this offense. Three days later, Bucalo performed an inspection of the premises when a UPS supervisor ordered him to leave.  Bucalo insisted he had a right to investigate, and an argument erupted before Bucalo finally left.  UPS fired Bucalo that day for failing to leave when first asked.

The ARB agreed with the ALJ that Bucalo's activities were on behalf of employee safety and not the environment, and are therefore not protected by TSCA. This holding fails to consider how employee safety activities can also touch on environmental safety. Moreover, it is the employer's statement of mind that makes retaliation unlawful, not the employee's. Brock v. Richardson, 812 F.2d 121, 123-25 (3d Cir. 1987); Willy v. Coastal Corp., 85-CAA-1, SOL D&O at 13-14 (June 1, 1994) (holding that employer's mistaken belief about protected activity is sufficient to make retaliation unlawful). If UPS was afraid that Bucalo's investigation could lead to environmental enforcement activity, that should be sufficient to provide TSCA protection. The ARB held that UPS fired Bucalo for failing to follow the orders to leave, and not for protected activity. The "filed or about to be filed" language in the environmental laws also appears in the anti-retaliation prohibition of the False Claims Act, and in that context protects employees who are collecting information about possible fraud "before they have put all the pieces of the puzzle together." See, e.g., U.S. ex rel. Yesudian v. Howard University, 153 F.3d 731, 739-40 (D.C. Cir. 1998). ARB member Wayne Beyer, the only hold-over from the Bush administration, wrote a concurring opinion to emphasize that in his view, reporting a violation is protected, but not asking questions. He reached this conclusion without citing the Yesudian case. Bucalo did not have a lawyer for his DOL case.  Hopefully he will do better with labor-management arbitration. If other whistleblowers have claims arising from retaliation for asking questions, hopefully they will find this cite to the Yesudian case and ask the ARB to change this holding.

Here is more of the Sixth Circuit's opinion:

To hold that the doctrine of equitable tolling should be applied in this case is clearly in keeping with the principle underlying our opinion in Andrews, the cases upon which it relied and the opinions that it spawned: that a complainant should not be punished for missing a filing deadline when he is affirmatively misled in a manner that causes the delay. As we observed in Jones, equitable tolling is appropriate when “congressional purposes [are] effectuated by tolling the statute of limitations in given circumstances.” 747 F.2d at 1040 (quoting Burnett v. New York Central R.R. Co., 380 U.S. 424 (1965)).

The purpose of the Transportation Act’s employee-protection provisions is “to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles.” Brock v. Roadway Express, Inc., 481 U.S. 252, 258 (1987). When a statute permits a complainant’s representation before an agency by counsel and counsel has informed the agency that he represents the complainant and has provided the agency with his contact information, the complainant may reasonably expect that counsel will at least be copied on the agency’s communications to him. When the agency sends its findings directly to the complainant with a clear indication that his counsel has contemporaneously received those same findings, but does not actually notify counsel until after expiration of the statutory period for filing objections, the refusal to permit a late objection is unjust. This injustice threatens the purposes of the Act’s employee-protection provisions, and a grant of equitable tolling in Smith’s case is consistent with effectuating them.

I particularly appreciate the Court's focus on the purpose of the Surface Transportation Assistance Act (STAA).  Many bad whistleblower decisions would go in our favor if the courts shared this type of focus on the statutory purpose.

Harry Smith's prospects of prevailing on remand are pretty good when one considers that he has already prevailed after a hearing against CRST's contractor, Lake City Enterprises. You can read the 153-page decision of the Administrative Law Judge (ALJ) here. I can also provide you with:

• My brief
• DOL's brief
• CRST's brief
• My reply brief
• The Sixth Circuit's opinion

The new Secretary of Labor can appoint a new set of ARB members at any time, but until she does, we will continue to suffer with decisions like these:

In Carter v. GDS Transport, Ltd., ARB No. 08-053, ALJ No. 2008-STA-9 (ARB Feb. 27, 2009), the ARB dismissed Marcolm Carter's case by holding that his complaint about a broken air conditioner on a shuttle bus was not protected.  The ARB finds that air conditioning is not a safety or health issue, even for shuttle buses in El Paso, Texas.  The ARB shows a remarkable lack of imagination.  Have they never sensed how it feels to drive for hours in the heat?  How about a CNN news poll:  Are you a safer driver when the air conditioner works, or when it doesn't work?  Moreover, the ARB is not moved by Carter's long record of complaining about issues such as brakes, tires and doors.  Apparently, it is okay with this Board to fire truck driver whistleblowers as long as you wait for them to complain about a broken air conditioner.

In Johnson v. Econo Steel, LLC, ARB No. 07-111, ALJ No. 2007-STA-12 (ARB Feb. 23, 2009), the ARB held that Gary Johson is not protected when he asks to talk to the plant manager about an assignment to drive 860 miles after making local deliveries.  The ARB wants truck drivers to specifically cite the Department of Transportation's hours of service rule to show that their concern for safety is one that is specifically required by law. It is no longer enough for a driver to just say, "I am concerned about how long this trip is," even when everyone in the industry knows about the hours of service rule.  So, truck drivers should complete law school before getting behind the wheel.

In Farnham v. International Manufacturing Solutions, ARB No. 07-095, ALJ No. 2006-SOX-111 (ARB Feb. 6, 2009), the company sued the whistleblower for interference in its loans, slander and infliction of emotional distress. The ARB wrote that Keith Farnham, " has failed to establish how [the] filing [of the] civil suit against [him]... injured him in any way in relation to 'the terms and condition of his employment.'" All those bosses angry at their whistleblowers just need to learn not to fire them -- just sue them instead and you will be off the hook for retaliating.  The ARB's decision does not even mention the U.S. Supreme Court decision of Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).  There, the high court made clear that courts must accept retaliation cases for any materially adverse action.  That is the only way to encourage employees to come forward with information in the public interest.  That this ARB would seek to narrow the scope of actionable adverse actions shows a desire to do less work for whistleblowers.  That desire is the opposite of the purpose of the DOL's whole whistleblower program.

In LeRoy v. Keystone Helicopter, Inc., ARB No. 07-056, ALJ Nos. 2006-AIR-3 and 24 (ARB Mar. 31, 2009), the ARB dismissed Danny LeRoy's AIR 21 case because he could not prove that the particular helicopter he was working on was used for passenger transportation.  This decision overlooks how the company as a whole is covered by AIR 21 as a "contractor" to an air carrier. See 49 U.S.C. § 42121(a). Now, the ARB does not want to protect us from falling helicopters unless the whistleblower can prove not only that he or she is fired on account of raising a safety concern, but also that this particular safety concern was for a specific aircraft that the whistleblower can prove was used to carry passengers.  This is not a requirement in the statute, but rather another effort by the ARB to limit the number cases for which it must award protection for whistleblowers.

In Collins v. Village of Lynchburg, Ohio, ARB No. 07-079, ALJ No. 2006-SDW-3 (ARB Mar. 30, 2009), the ARB wipes out the Department's ability to award exemplary damages against municipalities. To do this, the ARB misreads the Supreme Court's opinion in Newport v. Fact Concerts, Inc., 453 U.S. 247, 270-271 (1981) (holding that in action brought under 42 U.S.C.A. § 1983, municipalities are immune from punitive damages). The ARB didn't notice how 42 U.S.C.A. § 1983 fails to state explicitly that punitive damages can be awarded.  The Supreme Court held that it would not imply such a remedy against government units.  However, the Safe Drinking Water Act (SDWA) DOES explicitly provide for exemplary damages.  As such, the logic of Newport has no application to SDWA claims. Also, did the ARB forget that practically all employers in SDWA cases would be municipalities?  Who else runs public drinking water systems?  Of course Congress knew that its provision of exemplary damages would apply to municipalities.

Together, these decisions show that we are burdened with an old ARB that is just not with the program of protecting whistleblowers and the public.  It is time for a change.

On January 11, 2005, Timothy Elbert told his bosses at True Value that the brakes on a trailer were broken and he would not drive it.  Two days later, they fired him. Elbert had worked for the company for 16 years.

Since 1983, the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105, has protected the employees of motor carriers from retaliation for refusing to drive unsafe equipment, refusing to violate the hours of service rule or other safety laws, or for raising safety concerns. Under STAA, truck drivers have 180 days to file a written complaint with OSHA to seek relief for retaliation. Unfortunately, OSHA's record on ruling for truck drivers has been slow and disappointing.  When truck drivers appeal to the Office of Administrative Law Judges (ALJs), it can take months or longer to get a hearing, and then again to get a decision, and the decisions can still be disappointing.  The required review by the Administrative Review Board (ARB) can take years.  

As part of the Implementing Recommendations of the 9/11 Commission Act in 2007, Congress updated the STAA whistleblower protection (and created new protections for public transportation and railway workers). The updates include a right to file a civil action in federal district court if the Department of Labor (DOL) takes more than 210 days to issue a final order, and a right seek punitive damages up to $250,000. 

When Elbert filed his complaint with OSHA, True Value claimed that it fired him for becoming argumentative with a dispatcher about signing a new policy on tracking fuel and miles, and also for making up the claim that the brakes were bad.  OSHA accepted this claim and determined that Elbert's complaint had no merit.  Elbert appealed to an ALJ who also accepted the managers' claim that they fired Elbert for his abrasiveness, and not because of his protected activity.  The ALJ even held that it was okay to fire Elbert for believing that Elbert made up the brake problem as the managers did not learn about Elbert's corroboration for the problem until after they decided to fire him.

Elbert's case was pending at the ARB when the 2007 STAA amendments passed.  Elbert's attorney, Paul Taylor of the Truckers Justice Center, promptly filed a new civil action in U.S. District Court.  That court dismissed the case saying that the new procedure would apply only to violations that happened after the amendments became effective.  On appeal, Taylor argued that as the amendments are procedure and not substantive (except for the new provision for punitive damages), they should apply to cases that were pending at the time they were enacted.  Taylor noted that the district court action did not seek punitive damages, so that provision should not affect this case.  The Eighth Circuit disagreed.  The court was concerned about the "additional costs to True Value" from relitigating Elbert's claims. Even though Elbert was not seeking punitive damages, the court said that applying the law retroactively deprived True Value of how the new remedy could impact employee relations. The court did not address how punitive damages are meant to deter others from the unlawful conduct, and this purpose is served by applying such damages now for conduct that was already unlawful before the remedy was enacted. The court affirmed the lower court's dismissal.

Elbert's case still awaits a final decision from the ARB.  Meanwhile, this case shows the practical benefits that can flow from careful drafting of new legislation.  If Congress had just said that it wanted the amendments to apply to pending cases, then Elbert would have his day before a jury.  Perhaps Congress will be so attentive when it considers new whistleblower protection bills next year. Perhaps the next administration will manage whistleblower cases more promptly, and with a spirit that gives life to the protection Congress originally intended. See the National Whistleblowers Center (NWC) Roadmap for Change. We can continue to hope.