July 17, 2019

Tenth Circuit: Refusal to Operate Vehicle in Manner Directed by Supervisor Qualifies as Refusal to Operate

The Tenth Circuit Court of Appeals issued its opinion in TransAm Trucking, Inc. v. Administrative Review Board on Monday, August 8, 2016.

Alphonse Maddin was driving a tractor-trailer for TransAm in sub-zero temperatures on I-88 in Illinois. He could not find the TransAm-approved gas station and his truck’s fuel meter was below E, so he pulled to the side of the highway. When he tried to pull back onto the road about 10 minutes later, he discovered his brakes were frozen and had locked up. He radioed TransAm’s road assist department and was advised that a repairperson would be sent to his location. He then discovered that his bunk heater was not working and there was no heat in the cab of the truck. He fell asleep while waiting for the repair person.

Approximately two hours later, Maddin’s cousin called him and woke him up. According to the cousin, Maddin’s speech was slurred and he sounded confused. When Maddin sat up, he realized his torso was numb and he could not feel his feet. He called road assist again to report that his bunk heater was not working, telling the dispatcher about his physical condition. The road assist dispatcher told him to stay where he was. About thirty minutes later, Maddin became concerned about continuing to wait in the freezing temperatures with no heat. He unhitched the trailer from the truck, pulled a few feet away, and called his supervisor, Larry Cluck, telling him he couldn’t feel his feet and was having trouble breathing because of the cold. Cluck told him not to abandon the trailer. Cluck advised Maddin that he could either drive off with the trailer or stay there and wait for the repairperson. Maddin drove off without the trailer. About 15 minutes later, the repairperson showed up and Maddin drove back to the trailer. When the truck was repaired, Maddin called Cluck for directions to the fuel stop. Cluck threatened to write Maddin up for missing his fuel stop or a late load. Later, Cluck informed Maddin that he was being written up for abandoning his trailer. He was terminated less than a week later for violating company policy by abandoning his load.

Maddin filed a complaint with OSHA, asserting TransAm violated the whistleblower provisions of the Surface Transportation Assistance Act (STAA) when it terminated him. After OSHA dismissed his complaint, Maddin requested a hearing with a Department of Labor ALJ. The ALJ concluded Maddin engaged in protected activity when he reported his defective vehicle to TransAm and again when he refused to obey Cluck’s order to either drive the defective vehicle or stay put. The ALJ found that the protected activity was inextricably intertwined with TransAm’s decision to terminate Maddin, and eventually awarded back pay from the date of discharge to the date of reinstatement, including a per diem allowance provided by TransAm. TransAm appealed the ALJ’s decision to the Administrative Review Board (ARB), which upheld the ALJ’s findings and backpay award. TransAm filed a petition for review in the Tenth Circuit.

TransAm first argued that frozen brakes are not the type of vehicle complaint contemplated by the STAA. The Tenth Circuit declined to resolve the question because the ARB’s decision could be affirmed under another aspect of the STAA also relied on by the ARB. The alternative provision makes it unlawful for an employer to discharge an employee who refuses to operate a vehicle due to safety concerns. TransAm argued that Maddin did not refuse to operate the vehicle since he drove away. The Tenth Circuit applied Chevron deference to the agency’s interpretation of the word “operate,” and found no authority to support that Congress intended to limit the word “operate” solely to driving. The ARB interpreted “operate” to encompass situations in which an employee refused to use a vehicle in the manner directed by the employer, and the Tenth Circuit majority approved of this definition. TransAm argued it would have been impossible for Maddin to drive off while the trailer’s brakes were frozen, so his refusal to drag the trailer could not have contributed to his termination because he could not “defy the laws of physics,” therefore it was not protected activity. The Tenth Circuit majority disagreed. The Tenth Circuit found ample evidence supporting the ARB’s causation finding.

TransAm also raised three challenges to the backpay award. First, it contended that the per diem allowances should not have been included, but the ARB found that because the allowances were paid whenever Maddin drove for TransAm and did not appear to be intended to offset expenses, they were properly included as lost earnings. TransAm argued that the per diems were intended to reimburse Maddin for expenses, but no record evidence supported its assertion. TransAm also challenged the ARB’s refusal to offset the backpay award for earnings from 2010 to 2012, arguing no evidence supported the ALJ’s finding that the income was less than Maddin’s incurred business expenses. The Tenth Circuit, however, noted that the ARB specifically referenced Maddin’s IRS tax records and a personal statement, both of which supported the ALJ’s finding. The Tenth Circuit also rejected TransAm’s argument that Maddin was not entitled to backpay with interest for the entire period between his termination and reinstatement, finding TransAm’s statements conclusory, self-serving, and unsupported.

The Tenth Circuit denied TransAm’s petition for review. Judge Gorsuch dissented; he would not have applied Chevron and instead would have relied on the dictionary definition of “operate” in determining whether Maddin operated the vehicle in defiance of his supervisor’s orders.

Tenth Circuit: First Amendment Retaliation Claims Fail when Additional Grounds Exist for Termination

The Tenth Circuit Court of Appeals issued its opinion in Trant v. State of Oklahoma on Wednesday, May 28, 2014.

Dr. Collie Trant became Oklahoma’s Chief Medical Examiner during a time when the Office of the Chief Medical Examiner was recovering from several scandals. Trant was soon terminated by the Board of Medicolegal Investigations. He filed suit in Oklahoma state court, alleging First Amendment retaliation claims under 42 U.S.C. § 1983, breach of implied contract, and violation of the Oklahoma Open Meetings Act. The case was voluntarily removed to federal court. The district court granted summary judgment for defendants on the First Amendment retaliation claim, dismissed the breach of implied contract claim for failure to state a claim under Oklahoma law, and dismissed the Open Meetings Act claim for lack of standing. Trant then appealed to the Tenth Circuit.

The Tenth Circuit first addressed the summary judgment on the First Amendment retaliation claims. Trant asserted that he was terminated for statements made by him and his attorney threatening to reveal information to authorities regarding the grand jury investigation of the prior scandals. The Tenth Circuit applied the Garcetti/Pickering analysis and concluded that, because the Board had several legitimate reasons for terminating him and would have terminated him regardless of whether the protected statements were made, Trant did not meet his burden and summary judgment for the Board was appropriate.

Trant had also alleged that three other people took retaliatory actions against him because of his protected speech. However, the Tenth Circuit analyzed each individual and determined that no impropriety occurred.

Next, the Tenth Circuit evaluated Trant’s claims regarding the violation of the Open Meetings Act. He  sought a declaratory judgment that his termination was invalid because of the Board’s failure to comply with the Open Meetings Act. On this point, the Tenth Circuit reversed the dismissal and remanded the case to the district court to determine whether Oklahoma waived its immunity from liability.

The Tenth Circuit affirmed the district court’s grant of summary judgment on the First Amendment retaliation claims, affirmed dismissal of the breach of implied contract claims, and reversed and remanded the dismissal of the Open Meetings Act claims.

Tenth Circuit: Lockheed Employee Prevails in Whistleblower Case

The Tenth Circuit Court of Appeals published its opinion in Lockheed Martin v. Department of Labor  on Tuesday, June 4, 2013.

Andrea Brown worked for Lockheed Martin Corp. (“Lockheed”) from 2000 to 2008. She reported to Wendy Owen. In May 2006, Brown began having difficulty getting responses from Owen on work-related matters. She discussed the problem with Tina Colditz, a coworker and personal friend. Colditz was a longtime Lockheed employee who also reported to Owen.

Colditz also ran a pen pals program for the company, through which Lockheed employees could correspond with members of the U.S. military deployed in Iraq. Colditz told Brown that Owen had developed sexual relationships with several of the soldiers in the program, had purchased a laptop computer for one soldier, sent inappropriate emails and sex toys to soldiers stationed in Iraq, and traveled to welcome-home ceremonies for soldiers on the pretext of business while actually taking soldiers to expensive hotels in limousines for intimate relations.

Colditz told Brown she was concerned Owen was using company funds for these activities, and Brown understood that most employee expenses incurred were passed on to Lockheed’s customers, in this case the government. Brown became concerned Owen’s actions were fraudulent and illegal and that there could be media exposure that could lead to government audits and affect the company’s future contracts and stock price.

Brown brought her concerns to Jan Moncallo, Lockheed’s Vice President of Human Resources. Moncallo told Brown she would submit an anonymous ethics complaint on Brown’s behalf so that she would be protected from retaliation. On May 25, 2006, Moncallo sent an email to Jean Pleasant, the office Ethics Director, for an investigation, detailing Brown’s allegations. The email identified Brown as an individual who should have some knowledge about the allegations.

Lockheed investigated Owen from May 2006 to August 2006. Within a few days of Brown’s complaint, the pen pal program was discontinued. Brown eventually revealed it was she who filed the complaint. In the months that followed, Brown faced so many instances of adverse circumstances that it resulted in Brown’s emotional breakdown and she took medical leave.

Brown brought a complaint with the Occupational Safety and Health Administration (OSHA) on January 25, 2008, alleging violations of Section 806 of the Sarbanes Oxley Act of 2002. See See 18 U.S.C. § 1514A(a). On February 4, 2008, she provided Lockheed with a notice of forced termination. On February 6, 2008, Brown amended her OSHA complaint to allege constructive discharge. OSHA denied Brown’s complaint.

Brown subsequently requested a hearing before the Office of Administrative Law Judges. After a hearing, the Administrative Law Judge (“ALJ”) found that Brown had engaged in protected activity; that she suffered materially adverse employment actions, including constructive discharge; and her engagement in protected activity was a contributing factor in the constructive discharge. The ALJ awarded reinstatement, back pay, medical expenses, and non-economic compensatory damages in the amount of $75,000. Lockheed timely appealed the ALJ’s decision to the Administrative Review Board of the Department of Labor, which affirmed. Lockheed appealed.

Section 806, the anti-retaliation provision of Sarbanes-Oxley, provides, in relevant part:

Whistleblower protection for employees of publicly traded companies.–No [publicly traded] company . . . , or any officer [or] employee . . . of such company . . . may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of any lawful act done by the employee—

(1) to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of . . . [18 U.S.C. §§] 1341, 1343, 1344, or 1348, any rule or regulation of the Securities and Exchange Commission, or any
provision of Federal law relating to fraud against shareholders, when the information or assistance is provided to or the investigation is conducted by—

. . . .

(C) a person with supervisory authority over the employee . . . .

18 U.S.C. § 1514A. The regulations implementing Section 806, as well as the decisions of numerous circuit courts, establish the elements of a prima facie claim for violation of § 1514A. A claimant must show: (1) she engaged in protected activity or conduct; (2) the employer knew of her protected activity; (3) she suffered an unfavorable personnel action; and (4) her protected activity was a contributing factor in the unfavorable personnel action. See 18 U.S.C. § 1514A(b)(2)(C); 49 U.S.C. § 42121(b); 29 C.F.R. § 1980.104(b)(1) (2007); Harp v. Charter Commc’ns, Inc., 558 F.3d 722, 723 (7th Cir. 2009).

On appeal, Lockheed argued the Board’s findings of fact and conclusions of law were erroneous as to the first, third, and fourth elements of Brown’s prima facie case.

A. Protected Activity

The ALJ concluded Brown established by a preponderance of the evidence that she (1) reasonably believed Owen had committed mail or wire fraud, see 18 U.S.C. §§ 1341, 1343; and (2) communicated that belief “definitely and specifically” to Lockheed.

Lockheed argued the ALJ’s finding that Brown’s complaint did not relate to shareholder fraud was fatal to her retaliation claim because Section 806’s protection of employees who report conduct reasonably believed to constitute mail or wire fraud applies only if such conduct “relat[es] to fraud against shareholders.” 18 U.S.C. § 1514A(a)(1). The Tenth Circuit found Lockheed’s interpretation of the statute incorrect, and held an employee complaint need not specifically relate to shareholder fraud to be actionable under the Act.

Second, the Tenth Circuit found there was substantial evidence supporting the ALJ and Board’s findings that Brown reasonably believed Owen had committed fraud and that she definitely and specifically communicated that belief to her superiors.

B. Constructive Discharge

In Strickland v. United Parcel Service, Inc., this court set forth the requirements for establishing constructive discharge:

Constructive discharge occurs when an employer unlawfully creates working conditions so intolerable that a reasonable person in the employee’s position would feel forced to resign. The plaintiff’s burden is substantial. The standard is objective: the employer’s subjective intent and the employee’s subjective views on the situation are irrelevant. Whether a constructive discharge occurred is
a question of fact.

555 F.3d 1224, 1228 (10th Cir. 2009) (quotation and citations omitted).

In considering whether a constructive discharge occurred, the court considers the totality of the circumstances. Narotzky v. Natrona Cnty. Mem’l Hosp., 610 F.3d 558, 565 (10th Cir. 2010).

Lockheed’s challenge to the Board’s conclusion that Brown suffered an adverse personnel action because she was constructively discharged was twofold. First, Lockheed argued the ALJ applied the wrong legal standard to Brown’s constructive discharge claim and that the Board incorporated the ALJ’s mistake in its Final Decision and Order. Second, Lockheed argued there was insufficient record evidence to support the conclusion that Brown was constructively discharged.

The Tenth Circuit found both arguments unpersuasive.

First, the ALJ recited the correct legal standard for a claim of constructive discharge and concluded, after reciting the litany of adverse circumstances Brown faced following her ethics complaint, “a reasonable person such as Complainant would see resignation as her only option under these circumstances.” As to Lockheed’s second argument, the Court made reference to numerous facts cited by the ALJ and Board that are indicative of constructive discharge. A reasonable person would deem this evidence adequate to support the Board’s ultimate conclusion that Brown’s working conditions were so intolerable she would have viewed quitting as her only option.

C. Contributing Factor

To establish a prima facie case under Section 806, a complainant must show her protected activity was a contributing factor in the unfavorable personnel action. 18 U.S.C. § 1514A(b)(2)(C); 49 U.S.C. §  2121(b)(2)(B)(I); 29 C.F.R. § 1980.109(a). This element is broad and forgiving: the Board has defined a “contributing factor” as “any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” Klopfenstein v. PCC Flow Techs. Holdings, Inc., No. 04-149, 2006 WL 3246904, at *13 (Admin. Rev. Bd. May 31, 2006). Temporal proximity between the protected activity and adverse employment action may alone be sufficient to satisfy the contributing factor test. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1003 (9th Cir. 2009).

The Tenth Circuit held that the conclusion that Brown’s protected activity was a contributing factor in her eventual constructive discharge was supported by the Board’s finding that the adverse employment actions Brown experienced began shortly after the conclusion of the investigation against Owen. This finding was supported by substantial evidence

D. Remedy

Finally, Lockheed argued the Board’s award of $75,000 to Brown as noneconomic compensatory damages for her emotional pain and suffering, mental anguish, embarrassment, and humiliation was not authorized by 18 U.S.C. § 1514A(c)(2) and that the Board’s damage award was otherwise unsupported by substantial evidence. However, § 1514A(c)(1), provides that a prevailing employee “shall be entitled to all relief necessary to make the employee whole.” It may now be necessary for the Board to quantify its award of back pay, medical expenses, and attorney’s fees, and to reexamine its award of reinstatement to the extent an appropriate position for Brown at Lockheed no longer exists.

The decision of the Board is AFFIRMED and the matter REMANDED to the agency for further proceedings not inconsistent with this opinion.