DeSalvo v. Waterfront Property Services, LLC d/b/a Gator Dredging (agency decision, May 21, 2019)

Plain-English summary

Andrew DeSalvo was hired as a survey crew chief at a Florida jobsite. On his first day, he repeatedly interrupted and argued with two officials explaining his duties, then left after being told to sit down and listen or be terminated. For purposes of summary decision, the ALJ assumed DeSalvo had engaged in protected activity known to the company. The company's two affidavits about the confrontation were uncontradicted, its handbook identified insubordination as a basis for termination, and it showed a prior insubordination discharge. The Board held that clear and convincing evidence established the company would have fired DeSalvo regardless of any protected activity, affirmed summary decision, and dismissed the complaint.

Decision snapshot

• Cited authorities: 42 U.S.C. § 5851; 29 C.F.R. §§ 24.109(b)(1) and 18.72
• Outcome: Summary decision for the employer affirmed and ERA complaint dismissed.
• Key point: Uncontradicted first-day insubordination evidence established a same-action defense even assuming protected activity and employer knowledge.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:


  ANDREW DeSALVO,                                   ARB CASE NOS. 17-044

                  COMPLAINANT,                      ALJ CASE NO.2016-ERA-0008

         v.                                        DATE: May 21, 2019

  WATERFRONT PROPERTY
  SERVICES, LLC,
  d/b/a GATOR DREDGING,

                  RESPONDENT.


  Appearances:

  For the Complainant:
        Andrew DeSalvo; pro se; Santa Fe, New Mexico

  For the Respondent:
        William M. Woolman, Esq. and David G. Litman, Esq.; Sagaser,
        Watkins & Wieland PC; Fresno, California

  Before: William T. Barto, Chief Administrative Appeals Judge; James A.
  Haynes and Daniel T. Gresh, Administrative Appeals Judges


                         FINAL DECISION AND ORDER

        This case arises under the Energy Reorganization Act of 1974 (ERA), as
  amended, 42 U.S.C. § 5851 (2005), as implemented by regulations codified at 29
  C.F.R. Part 24 (2017). The Complainant, Andrew DeSalvo, filed a complaint with
  the Occupational Safety and Health Administration (OSHA) alleging that his
  employer, Waterfront Property Services, LLC, d/b/a/ Gator Dredging (WPS), the
  Respondent, terminated his employment after he engaged in protected activity, in



  violation of the ERA’s whistleblower provisions. OSHA found that there was no
  reasonable cause to believe that WPS violated the ERA’s whistleblower provisions
  because Complainant provided no evidence to prove that his protected activity was
  a contributing factor in his termination and that his refusal to sit down and discuss
  his job duties during his initial on-the-job meeting with WPS officials was the
  legitimate reason WPS terminated his employment. Complainant requested a
  hearing before an Administrative Law Judge (ALJ), who granted Respondent’s
  motion for summary decision it has shown “by clear and convincing evidence that
  Respondent would have taken the same adverse action.” 1 For the reasons stated
  below, we affirm.

                                         BACKGROUND

         The key facts in this case appear to be undisputed. Complainant was hired as
  the Survey Crew Chief at the WPS Turkey Point Jobsite in Homestead, Florida. He
  reported to work on September 2, 2015, where he met Lawrence Naeder, Assistant
  Operation Engineer at WPS, and William Coughlin, President and Chief Executive
  Offer of WPS. As Naeder and Coughlin attempted to explain the details of
  Complainant’s job duties and the company’s survey process, Complainant
  repeatedly cut them off and became argumentative. At one point, Complainant rose
  from his chair and asked to speak with Coughlin alone, but Coughlin told him that
  Naeder must be included in the conversation. Complainant was also instructed to
  sit down and listen to Coughlin and Naeder or leave the trailer and be terminated.
  Complainant chose to leave the trailer and was terminated that day. Complainant
  filed his complaint with OSHA on January 8, 2016.

                         JURISDICTION AND STANDARD OF REVIEW

         The Secretary of Labor has delegated to the Administrative Review Board
  (ARB) authority to review ALJ decisions in cases arising under the ERA and issue
  final agency decisions in these matters. 2 The ARB reviews an ALJ’s grant of




  1      Decision and Order (D. & O.) at 7.

  2
          Secretary’s Order No. 1-2019 (Delegation of Authority and Assignment of Responsibility
  to the Administrative Review Board), 84 Fed. Reg. 13072 (Apr. 3, 2019); see 29 C.F.R. §
  1982.110(a) (2018).




  summary decision de novo, applying the same standard that ALJs employ. 3
  Pursuant to 29 C.F.R. § 18.72 (2018), summary decision must be entered if the
  pleadings, affidavits, material obtained by discovery, or matters officially noticed
  show that there is no genuine issue as to any material fact and that a party is
  entitled to summary decision. 4

                                          DISCUSSION

         The ERA provides, in pertinent part, that “No employer may discharge or
  otherwise discriminate against any employee with respect to his compensation,
  terms, conditions, or privileges of employment because the employee . . . notified his
  employer of an alleged violation of this chapter or the Atomic Energy Act of
  1954.” 42 U.S.C. § 5851(a)(1)(A). To prevail on an ERA whistleblower complaint, a
  complainant must prove by a preponderance of the evidence that he engaged in
  protected activity, suffered an adverse personnel action, and that his protected
  activity was a contributing factor in the adverse personnel action taken against him
  or her. If the complainant’s protected activity was a contributing factor in the
  adverse action, the employer may avoid liability only if it demonstrates “by clear
  and convincing evidence that it would have taken the same unfavorable personnel
  action” in the absence of the protected activity. 5

         The ARB reviews complaints and papers filed by pro se complainants
  “liberally in deference to their lack of training in the law and with a degree of
  adjudicative latitude.” 6 But we are also mindful of our duty to remain impartial,

  3
        Siemaszko v. FirstEnergy Nuclear Operating Co., Inc., ARB No. 09-123, ALJ No.
  2003-ERA-013, slip op. at 3 (ARB Feb. 29, 2012).

  4
         We note that the ALJ did not provide in his D. & O. the standard for granting
  summary decision, nor provide complete cites to the relevant statutes. Moreover, he did not
  identify the authors of the affidavits he cited. In addition, we note that neither the parties
  nor the ALJ identified or described Complainant’s alleged protected activity in this case.
  Without this information, it is difficult for the Board to analyze the elements of the
  complaint, including whether any alleged protected activity contributed to the adverse
  personnel action. However, we hold that these omissions, although serious, do not
  constitute reversible error because we are able to identify and evaluate the evidence of
  record in support of the motion for summary decision.

  5
         42 U.S.C. § 5851(b)(3)(C), (D); 29 C.F.R. § 24.109(b)(1); Hoffman v. NextEra Energy,
  Inc., ARB No. 12-062; ALJ No. 2010-ERA-011, slip op. at 6 (ARB Dec. 17, 2013).




  and thus, we must refrain from becoming an advocate for the pro se litigant.” 7
  Similarly, an ALJ “must accord a party appearing pro se fair and equal treatment,
  but a pro se litigant cannot shift the burden of litigating his case to the courts, or
  avoid the risks of failure that may result from his decision to forego expert
  assistance.” 8

         The ALJ reviewed the facts outlined in the pleadings and attachments in the
  light most favorable to Complainant and assumed both that Complainant engaged
  in protected activity and that WPS was aware of it. The ALJ then summarily
  concluded that WPS had shown by clear and convincing evidence that it would have
  taken the same adverse action regardless of the existence of any protected activity.
  While the ALJ did not directly address this evidence, we note that WPS submitted
  affidavits from Naeder and Coughlin which detailed the sequence of events on
  September 2, 2015, and these affidavits are not contradicted by allegations from
  Complainant. 9 In addition, WPS submitted a copy of its employee handbook
  explaining the termination process, which specifically mentions termination on
  account of insubordination. Complainant signed this handbook indicating that he
  received it earlier that day. Finally, WPS submitted evidence that the company had
  previously terminated the employment of one of its employees for insubordination,
  albeit under different circumstances than in this case. In our de novo review of
  these submissions, as the well as the pleadings filed with the ALJ, we hold that
  WPS has established by clear and convincing evidence that it would have

  6       Menefee v. Tandem Transp. Corp., ARB No. 09-046, ALJ No. 2008-STA-055, slip op.
  at 7 (ARB Apr. 30, 2010) (quotation omitted).

  7       See Cummings v. USA Truck, Inc., ARB No. 04-043, ALJ No. 2003-STA-047, slip op.
  at 2 (ARB Apr. 26, 2005).

  8      Pik v. Credit Suisse, AG, ARB No. 11-034, ALJ No. 2011-SOX-006, slip op. at 5 (ARB
  May 31, 2012) (quotation omitted) (“pro se litigants have the same burdens of proving the
  necessary elements of their cases as litigants represented by counsel”)

  9      We do not, however, agree with the ALJ that Complainant “admitted” that he was
  insubordinate on September 2, 2015. Rather, Complainant’s statements in response to the
  affidavits and pleadings filed in support of the Motion for Summary Decision do not
  contradict WPS’s evidence. It is uncontradicted that a confrontation between Complainant
  and Naeder and Coughlin occurred. The uncontradicted evidence also shows that
  Complainant chose to leave the trailer after being warned not to do so or be terminated.
  Finally, the WPS employee handbook in affect at the time of the incident which Complainant
  received explained the consequences of employee insubordination.



  terminated Complainant’s employment for insubordination, irrespective of whether
  he had engaged in protected activity.

                                    CONCLUSION

        WPS presented uncontradicted evidence that it would have taken the same
  adverse action against Complainant in the absence of any protected activity he may
  have engaged in. Therefore, WPS is entitled to summary decision as a matter of
  law. Accordingly, we AFFIRM the ALJ’s decision and DISMISS this complaint.

         SO ORDERED.