Eleventh Circuit Decides Standard of Review for Department of Labor’s Review Board

In DeKalb County v. United States Department of Labor, No. 14-15435, 2016 WL 463455 (11th Cir. Feb. 8, 2016), the Eleventh Circuit found that even though the Department of Labor’s Administrative Review Board improperly applied a de novo standard of review, the misapplication was harmless error.

Daisy Abdur-Rahman and Ryan Petty worked for the DeKalb County Department of Public Works as sewer overflow inspectors.  In an attempt to identify places where sewers frequently overflowed, they asked their supervisors for historical records of sewer spills in the County.  After their supervisors failed to produce the records, Abdur-Rahman and Petty consistently asked for them on a weekly basis.  Their supervisors discouraged the search, telling them that they were “ruffling too many feathers” and “rocking the boat.” Id. at *1. Abdur-Rahman and Petty suspected that the County had something to hide, and they began telling coworkers and other supervisors that the County could get in trouble.  The two were subsequently fired.

Abdur-Rahman’s and Petty’s suspicions turned out to be unfounded, but they filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging that they had been fired in retaliation for voicing their concerns and complaints—an activity protected by the Federal Water Pollution Control Act (FWPCA). The Administrative Law Judge, after a 13-day hearing, found that Abdur-Rahman and Petty had engaged in an activity protected by the FWPCA, but that the activity was not the motivating factor behind the termination of their employment.

On appeal, however, the Department of Labor Administrative Review Board disagreed.  First, the Board determined that the ALJ applied the wrong legal standard: the protected activity need only be a motivating factor for the termination, not the motivating factor.  Then, the Board made a factual determination that the protected activity was clearly a motivating factor for their termination.  The problem was that the Board reviewed the ALJ’s factual findings de novo—a standard of review that the Board only has in reviewing the ALJ’s legal analysis.  Thus, the issue that the Eleventh Circuit had to determine was whether this erroneous de novo review of the facts (rather than a “substantial evidence” standard of review) by the Board affected the outcome.

The Eleventh Circuit began with a discussion of the elements of an FWPCA retaliation claim: (1) the employee engaged in protected activity; (2) the employee suffered an adverse action; and (3) the protected activity was a motivating factor in the adverse action. Since the parties agreed that the second element (adverse action) had been satisfied, the court proceeded to analyze the first and third elements.

The Eleventh Circuit noted that informal or internal complaints to supervisors and coworkers are considered protected activities, and that Abdur-Rahman’s and Petty’s complaints to supervisors therefore satisfied the first element.  Turning to the third element, the Eleventh Circuit found that there was substantial evidence from the record to conclude that the protected activity was a motivating factor for their termination.  Therefore, the Eleventh Circuit held that although the Board improperly reviewed the ALJ’s factual findings de novo, the Board’s decisions would have been the same had it reviewed the factual findings under the substantial evidence standard.

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