Administrative Review Board

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

THE ESTATE OF DANIEL A. AYRES,

ARB CASE NOS. 2018-0006

2018-0074

COMPLAINANT,

ALJ CASE NO.

2015-STA-00022

v.

DATE: November 18, 2020

WEATHERFORD U.S., L.P.,

RESPONDENT.

Appearances:

For the Complainant:

Martin S. Hume, Esq.; Martin S. Hume Co., L.P.A.; Youngstown, Ohio

For the Respondents:

David A. Campbell, Esq.; Gregory C. Scheiderer, Esq.; Donald G.

Slezak, Esq.; Vorys, Sater, Seymour and Pease LLP; Cleveland, Ohio

BEFORE: James D. McGinley, Chief Administrative Appeals Judge, James

A. Haynes and Thomas H. Burrell, Administrative Appeals Judges

DECISION AND ORDER

This case arises under the employee protection provisions of the Surface

Transportation Assistance Act of 1982 (STAA), as amended.1 Complainant Daniel

A. Ayres filed a complaint with the United States Department of Labor’s

49 U.S.C. § 31105 (2007) as implemented at 29 C.F.R. Part 1978 (2019); see 49 U.S.C.

§ 42121 (2000) (providing standards referenced in the STAA).

1

2

Occupational Safety and Health Administration (OSHA) alleging that Respondent

Weatherford U.S., L.P. violated the STAA first by reducing his hours of work and

later terminating his employment in retaliation for raising safety concerns. OSHA

dismissed the complaint and Ayres appealed.

Following a hearing on the complaint, a Department of Labor Administrative

Law Judge (ALJ) concluded that Weatherford violated the STAA. The ALJ issued a

Decision and Order (D. & O.) in which he awarded Ayres back pay and damages,

and an Attorney Fee Order awarding attorney’s fees and costs. Weatherford

appealed both rulings to the Administrative Review Board (ARB or Board). For the

following reasons, the D. & O. is affirmed in part and reversed in part, and we

affirm the Attorney Fee Order.

BACKGROUND

Weatherford is a company that provides drilling services to companies

engaged in the exploration or production of oil and gas. At all times relevant to this

case it conducted fracking operations in Williston, North Dakota, and operated

vehicles transporting hazardous materials. Weatherford hired Ayres as an

Equipment Operator on April 22, 2012. From April through July 2012, Weatherford

provided Ayres with training in Texas and Colorado. Ayres arrived in Williston on

July 10, 2012. In addition to operating equipment his job duties included driving

Weatherford’s vehicles.

Weatherford’s Williston employees were divided into fleets, and each fleet

was broken down into crews. The crews were managed by supervisors and included

between fifteen and twenty Equipment Operators. Ayers’ crew supervisor was Lee

Hammons, and Hammons reported directly to Terry Crabb, a Weatherford District

Manager. Employees worked “rotations,” a schedule in which they would usually

work for three weeks followed by two weeks off. When Ayres began at Williston he

agreed to work for six weeks straight instead of a regular three-week rotation.

Drivers at the Williston site were sometimes asked to drive outside of their

certification, and this was a safety concern among certain employees who feared

losing their licenses.2 The issue of the lack of state permits came up often and

D. & O. at 54. Drivers with commercial driver’s licenses are required to have

an additional hazardous materials (HAZMAT) certification that would allow them to

transport hazardous materials.

2

3

“equipment operators were unhappy about the situation.”3 The practice was to ask

the driver to drive the load, and to then “find out from the response whether the

driver had the proper certification—or would even raise the issue.”4 The

consequence of this practice was that “it put the onus on the driver to refuse the

assignment if it was outside of his or her certification.”5

Work at the Williston site was slow during July and August 2012, and

supervisors tried to find non-Equipment Operator duties for employees like Ayres to

keep them busy. On one occasion between July 12 and 31, 2012, Ayres refused to

drive outside his certification despite being directed to do so by Hammons.6

Hammons thereafter reassigned the task to another employee. Around this same

time, Ayres participated in the investigation of various work-related complaints

raised by another Weatherford employee.

On August 13, 2012, Ayres had a conversation by telephone with James

Nicholson, a Human Resources (HR) Assistant Manager located in Houston, Texas.

During this conversation Ayres complained to Nicholson about being directed to

drive outside his certification.7 Around that same date, Crabb stated during a

meeting with employees, including Ayres, that anyone who presented any

complaints to Weatherford’s HR department would be fired.8 According to Crabb, he

was “old school in an oilfield and that was the way it worked, that you went through

your supervisor.”9

As a result of the lack of work, Weatherford created a list of fifteen nonessential employees. The appearance of an employee’s name on the list did not

mean that they were laid off, but meant that they would not receive a call back for

their next rotation. The employees on the list were still considered to be employed

by the company at the minimum 40 hours per week and they received pay while

they remained at home, but without site work they were precluded from earning

overtime pay.

3

Id. at 57.

4

Id. at 50.

5

Id. at 50-51.

6

Id. at 62, 68-69; Deposition of Lee Hammons (Hammons Dep.) at 6-7.

7

D. & O. at 31 (citing Deposition of James Nicholson at 31), 57-58, 62, 68-69, 77.

8

Transcript (Tr.) 82-83, 239.

9

Id. at 231.

4

Crabb and Hammons “evinced an awareness” that Ayres had spoken to HR,

viewed him as a “troublemaker,” and were aware that he “was involved in a lawsuit

with a previous employer.”10 A decision to put Ayres on the list occurred the week

before August 20, 2012.11 Crabb and Hammons were involved in the decision to put

Ayres on the list, as was Marcus Moore, Weatherford’s Operations Manager.12

On August 20, 2012, the last day of Ayres’ rotation, he was escorted off

Weatherford’s premises following a verbal altercation with another employee. Based

on his three week on and two week off schedule, Ayres had been scheduled to return

to Williston on September 5, 2012. By September 20, Weatherford had not

instructed him to return for his next rotation.

Ayres sent an email message to Nicholson on September 20, 2012, in which

he asked about his employment status and whether he was “being improperly

retaliated against for making reports in accordance with the Anti-Corruption

Compliance Manual and Enterprise Excellence Policy that is incorporated in the

Weatherford personnel policies and procedures.”13 He stated that he contacted HR

and was told that his allegations were being investigated. He also stated that

among the items he had reported were complaints about employees being asked to

“carry loads in violation of DOT regulation[s],” employees “being asked to perform

security assignments alone which was in violation of Weatherford safety policies,”

Crabb’s threat to fire anyone he caught contacting HR, and supervisors “drinking

and driving company vehicles.”14

Weatherford did not formally implement a Reduction-in-Force (RIF) based on

the list of non-essential personnel “until the middle of October 2012.”15 Weatherford

discharged Ayres on October 19, 2012. Ayres did not return to Williston but he

received pay up to that date.

Ayres filed a STAA complaint with OSHA on February 15, 2013. On

November 6, 2014, OSHA dismissed the complaint. Ayres requested a hearing on

10

D. & O. at 69.

11

Id. at 59, citing Hammons Dep at 19.

12

D. & O. at 70, 73.

13

Joint Exhibit 36.

14

Id.

15

D. & O. at 61.

5

the complaint, and the ALJ conducted a hearing on August 26, 2015. At the hearing

the ALJ heard testimony from Ayres, Crabb, and Lisa Mora, a Weatherford HR

Manager. Ayres died on March 30, 2016, and his estate proceeded with this case.

On September 25, 2017,16 the ALJ issued a D. & O. in which he concluded

that Ayres engaged in STAA-protected activities that contributed to his placement

on the non-essential list and subsequent discharge, and Weatherford failed to

present clear and convincing evidence that it would have taken those actions in the

absence of Ayres’ protected activities. The ALJ awarded Ayres’ estate back pay,

compensatory damages, and punitive damages, and directed the estate to submit an

application for attorney’s fees and costs. On August 22, 2018, the ALJ awarded the

estate $36,219.01 in fees and costs. Weatherford appealed the ALJ’s rulings to the

Board.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the ARB to issue agency

decisions under the STAA.17 The ARB reviews questions of law presented on appeal

de novo, but is bound by the ALJ’s factual determinations as long as they are

supported by substantial evidence.18 Substantial evidence means “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”19

The ARB will uphold ALJ credibility determinations unless they are “inherently

incredible or patently unreasonable.”20

DISCUSSION

In serving the parties the ALJ inadvertently mailed a copy of the D. & O. to an

old address of Respondent’s counsel. On October 20, 2017, the ALJ issued an Amended

Decision and Order identical to the D. & O. and containing a footnote indicating that the

parties discussed the incorrect service of the D. & O.

16

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020); see 29 C.F.R. § 1978.110(a).

17

29 C.F.R. § 1978.110(b); Jacobs v. Liberty Logistics, Inc., ARB No. 2017-0080, ALJ

No. 2016-STA-00007, slip op. at 2 (ARB Apr. 30, 2019) (reissued May 9, 2019) (citation

omitted).

18

19

Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938).

20

Jacobs, ARB No. 2017-0080, slip op. at 2 (quotations omitted).

6

1. Governing Law

The STAA provides than an employer may not discharge or otherwise

retaliate against an employee with respect to the employee’s compensation,

conditions, or privileges of employment because the employee engaged in STAAprotected activity.21 Complaints filed under the STAA are governed by the legal

burdens of proof set forth in the employee protection provision of the Wendell H.

Ford Aviation Investment and Reform Act for the 21st Century (AIR 21).22

To prevail on a STAA claim, a complainant must prove by a preponderance of

the evidence that he engaged in protected activity, that his employer took an

adverse employment action against him, and that the protected activity was a

contributing factor in the unfavorable personnel action.23 If the employee makes

such a showing, the employer can avoid providing relief by demonstrating by clear

and convincing evidence that it would have taken the same unfavorable personnel

action in the absence of the protected activity.24

2. Protected Activity

Under the complaint clause of the STAA whistleblower statute, a

complainant may engage in protected activity by making a complaint “related to a

violation of a commercial motor vehicle safety or security regulation, standard, or

order . . . .”25 A complainant may also engage in protected activity by refusing to

drive under certain conditions. The refusal to drive provision sets out two distinctly

different kinds of protected activity. In the first instance, a driver is protected if he

refuses to drive because operation of the vehicle would violate a safety regulation; in

the second instance, a driver is protected if he refuses to drive because he has a

reasonable concern that operation would cause a safety hazard.

The record supports the ALJ’s conclusion that Ayres engaged in protected

activity by refusing to operate a vehicle for which he lacked certification in July

21

49 U.S.C. § 31105(a)(1); 29 C.F.R. §1978.102(a).

22

49 U.S.C. § 31105(b)(1); see 49 U.S.C. § 42121.

49 U.S.C. § 42121(b)(2)(B)(iii); Buie v. Spee-Dee Delivery Serv., Inc., ARB No.

2019-0015, ALJ No. 2014-STA-00037, slip op. at 3 (ARB Oct. 31, 2019).

23

24

49 U.S.C. § 42121(b)(2)(B)(ii).

25

49 U.S.C. § 31105(a)(1)(A).

7

2012 and discussing his concerns with Nicholson on August 13, 2012. The ALJ

found that Hammons corroborated Ayres’ testimony by agreeing that on at least one

occasion Ayres refused to drive outside of his certification when asked to do so. 26 It

is also clear that Ayres engaged in protected activity by sending an email to

Nicholson on September 20, 2012, further describing his concerns.

3. Adverse Action

The record supports the ALJ’s conclusion that Ayres suffered an adverse

personnel action when he was placed on the non-essential list and not brought back

to Williston in accordance with his expected rotation. The ALJ noted that, even

though work had slowed down, Ayres lost the opportunity to compete for whatever

overtime work existed and that he was deprived of a privilege of employment.27

Further, there is no dispute that Ayres suffered an adverse action when his

employment was formally terminated.

4. Contributing Factor

The ALJ found that there was “an abundance of circumstantial evidence

involving animus, temporal proximity, and pretext”28 supporting a conclusion that

Ayres’ protected activity contributed to his being placed on the non-essential list

and discharge. The ALJ presented this chronology as the basis for his ruling that

Weatherford violated the STAA:

Accordingly, I find that the evidence supports that 1) the

Complainant engaged in protected activity by refusing to

drive outside his certification sometime between July 12,

2012, and July 31, 2012; 2) he had spoken to HR about his

complaints, including safety concerns, by August 13, 2012;

3) within a week of his conversation on August 13, 2012,

D. & O. at 50 (Hammons testified that the reason that he reassigned a task to

another frack pump operator was that “the Complainant first refused, citing his lack of

certification … While Hammons denied threatening to fire the Complainant over the

incident, and stated that the issue of his license certification never came up again, the fact

remains that Hammons did, in fact, corroborate the Complainant’s testimony by agreeing

that on at least one occasion he refused to drive outside of his certification when asked.”).

26

27

D. & O. at 61.

28

Id. at 63.

8

his name was placed on a list of non-essential personnel; 4)

around the same time as the Complainant’s telephone call

to HR on August 13, 2012, Crabb admitted that he

threatened to fire anyone who went to HR over his head; 5)

during this same period both Crabb and Hammonds

evinced an awareness that the Complainant had spoken to

HR and viewed him as a troublemaker; 6) on August 20,

2012, the Complainant was escorted off the premises, but

not fired, after a verbal altercation, which was most likely

with a supervisor, not a fellow employee; and 7) thereafter,

the Complainant was not brought back on his regular twoweek rotation and subsequently informed that he was

terminated after an alleged investigation into his

complaints for which there is no proof that anyone was ever

contacted.29

The record supports the ALJ’s findings that “both Hammons and Crabb had

an animus toward employees who took their complaints to HR without first

consulting them”30 and that “when employees brought their complaints directly to

Hammons or Crabb they experienced a hostile reaction.”31 The ALJ observed that

“Weatherford did not present any contemporaneous records of the Complainant

being disciplined for any rules violation during his entire time at Williston.”32 And

although Ayres was escorted off Weatherford’s premises following a verbal

altercation with another employee, this altercation did not contribute to Ayres’

discharge. We therefore conclude that substantial evidence supports the ALJ’s

conclusion that Ayres’ STAA-protected activity contributed to Weatherford’s

adverse employment actions.33

5. Same Action Defense

The record supports the ALJ’s conclusion that Weatherford failed to

demonstrate, by clear and convincing evidence, that it was highly probable that

29

Id. at 69.

30

Id. at 63.

31

Id. at 65.

32

Id. at 79

The ALJ states on page 77 of the D. & O. that “Crabb’s protected activity

contributed to Weatherford’s actions against him.” This is clearly a typographical error.

33

9

Ayres would have been placed on the non-essential list and later discharged if he

had not presented his complaints to Weatherford’s HR department.34 Weatherford

did not present evidence contemporaneous with Ayres’ employment showing that he

was a poor performer. To the contrary, Weatherford admits in its brief that “[a]fter

Ayres was selected for the reduction-in-force, Respondent attempted to find him

another position but was unable to do so.”35

6. Other Issues Raised on Appeal

Weatherford asserts in its brief that “the ALJ used the incorrect standard of

review for Ayres’ claims, which resulted in the ALJ misapplying the law and facts

and inappropriately finding judgment for Ayres” because he should not have applied

the AIR 21 burdens of proof to this case.36 This assertion is manifestly incorrect.

Ayres’ STAA complaint is governed by the legal burdens of proof set forth in the

employee protection provision of AIR 21.

Weatherford also argues that Ayres’ STAA claims are barred by the doctrine

of collateral estoppel “because they involve identical facts and substantially similar

legal issues to the claims set forth in a retaliation claim” he pursued before the U.S.

District Court for the Northern District of Ohio.37 Collateral estoppel would apply if:

(1) the same issue was actually litigated; (2) the issue was necessary to the outcome

of the federal court case; and (3) precluding litigation of the issue in this case will

not constitute basic unfairness to Ayres.38

The ALJ rejected Weatherford’s collateral estoppel argument in his January

29, 2016 Order Denying Respondent’s Motion to Dismiss. The ALJ noted that Ayres

pursued relief in District Court under the Ohio Whistleblower’s Protection Act

(OWPA) and the Fair Labor Standards Act (FLSA). He concluded that the District

D. & O. at 79 (“I find that Weatherford failed to demonstrate, by clear and

convincing evidence, that it was highly probable that the Complainant would still have been

placed on the RIF-list and sat home, earning a base salary, for several weeks before being

terminated on October 19, 2012 as part of a RIF if he had never run afoul of Crabb by going

to HR with complaints, which included those protected by the STAA.”).

34

35

Respondent’s Initial Brief (Resp. Br.) at 22.

36

Resp. Br. at 12.

37

Id. at 12-13.

Siemaszko v. First Energy Nuclear Operating Co., ARB No. 2009-0123, ALJ

No. 2003-ERA-00013, slip op. at 12-13 (ARB Feb. 29, 2012).

38

10

Court did not consider the merits of the OWPA claim because Ohio law did not

govern Ayres’ employment in North Dakota. He also concluded that the FLSA claim

involved the litigation of issues of law and burdens of proof different from those in

this STAA case. We concur with the ALJ’s conclusions.

7. Back Pay

Under the STAA, a successful complainant is entitled to “compensatory

damages, including back pay.”39 Substantial evidence supports the ALJ’s back pay

analysis. The ALJ based his analysis on Ayres’ earnings at Weatherford at the rate

of $1,217.67 per week for the period from the date of his discharge until the date of

the hearing.40 He denied pay for a six-month period during which Ayres did not seek

comparable employment, subtracted his “business income” earnings in 2014, and

subtracted the salary Ayres earned while employed at other employers following his

discharge.41 We therefore affirm the ALJ’s conclusion that Ayres is entitled to

$82,119.90 in back pay.

8. Emotional Distress

An employer who violates the STAA may be held liable to the employee for

damages for mental or emotional distress. These damages are designed to

compensate whistleblowers not only for direct pecuniary loss, but also for such

harms as loss of reputation, personal humiliation, mental anguish, and emotional

distress.42

The record supports the ALJ’s finding that Ayres suffered emotional harm,

mental anguish, sleeplessness and marital strain. We therefore affirm the ALJ’s

conclusion that Ayres is entitled to $10,000 in compensatory damages for mental

distress.

39

49 U.S.C. § 31105 (b)(3)(A)(iii); 29 C.F.R. § 1978.109(d)(1).

The ALJ found that, given Ayres’ medical condition and the fact that he died

soon after the hearing, it would be “overly speculative to predict” how long it would have been

before Ayres voluntarily withdrew from the workforce because of his health. D. & O. at 88.

40

D. & O. at 82-88. Respondent argued below and on appeal that the ALJ should

have denied back pay following Ayres’ termination for cause. The ALJ found insufficient basis

to determine that Ayres was terminated for cause. We affirm the ALJ’s finding.

41

49 U.S.C.§ 31105(b)(3)(A)(iii); Simon v. Sancken Trucking Co., ARB No. 20060039, -0088, ALJ No. 2005-STA-00040 (ARB Nov. 30, 2007).

42

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9. Punitive Damages

The ALJ held that Ayres was entitled to $25,000 in punitive damages.43

Remedial claims such as back pay survive the death of a party. But penal claims,

including the right to recover punitive damages, abate upon the death of the injured

party.44 We therefore reverse the ALJ’s conclusion that Ayres’ estate is entitled to

punitive damages.

10. Attorney’s Fees and Costs

A prevailing STAA complainant is entitled to be reimbursed for litigation

costs, including attorney’s fees.45 In accordance with Supreme Court precedent, the

starting point is the “lodestar” method of multiplying a reasonable number of hours

by a reasonable hourly rate.46 The party seeking a fee award must submit

“‘adequate evidence concerning a reasonable hourly fee for the type of work the

attorney performed and consistent [with] practice in the local geographic area,’ as

well as records identifying the date, time, and duration necessary to accomplish

each specific activity, and all claimed costs.”47

Ayres’ representative has been fully successful in his prosecution of the case

and is therefore entitled to an attorney’s fee to be paid by Weatherford. Weatherford

repeats on appeal its argument before the ALJ that Ayres requested payment of

43

D. & O. at 91.

See, e.g., Fulk v. Norfolk S. Ry. Co., 35 F. Supp. 3d 749, 764 (M.D.N.C. 2014)

(punitive damages claims sought by widow of railroad employee pursuant to the antiretaliation provision of the Federal Railroad Safety Act (FRSA) after employee’s suicide,

allegedly caused by the employer’s retaliation, did not survive the employee’s death and

widow was precluded from seeking such damages under 49 U.S.C.A. § 20109(e)(2)(C)); see

also E.E.O.C. v. Marquez Brothers Int’l, Inc., No. 1:17–CV–44 AWI–EPG, 2018 WL

3197796, *10 (E.D. Cal. June 26, 2018), and cases cited therein.

44

49 U.S.C. § 31105(b)(3)(B) (“[T]he Secretary [of Labor] may assess against the

person against whom the order is issued the costs (including attorney’s fees) reasonably

incurred by the complainant in bringing the complaint.”).

45

Jackson v. Butler & Co., ARB Nos. 2003-0116, -0144; ALJ No. 2003-STA00026, slip op. at 10-11 (ARB Aug. 31, 2004).

46

Gutierrez v. Regents, Univ. of Cal., ARB No. 1999-0116, ALJ No. 1998-ERA00019, slip op. at 11 (ARB Nov. 13, 2002).

47

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attorneys’ fees and costs for both this STAA case and the District Court case.48 In

answer, ALJ explained that, because he did not have authority to award fees for

work solely related to the District Court case, he discounted those fees.49

The ALJ found that the attorney hours expended were reasonably incurred

and the requested hourly rate was reasonable. The record supports his conclusions.

Accordingly, we affirm the ALJ’s award of $33,740.00 in fees and $2,479.01 in costs

for a total of $36,219.01.

CONCLUSION

Substantial evidence supports the ALJ’s conclusions that Ayres engaged in

STAA-protected activities, was subjected to adverse employment actions, and his

protected activities contributed to those adverse actions. The record also supports

the conclusion that Weatherford failed to show by clear and convincing evidence

that it would have taken those actions in the absence of Ayres’ protected activities.

Accordingly, we AFFIRM the ALJ’s conclusion that Weatherford violated the

STAA.

Weatherford shall provide to Ayres’ estate (1) back pay in the amount of

$82,119.90 plus interest as ordered in the D. & O.; (2) $10,000 in compensatory

damages for emotional distress; and (3) $36,219.01 in attorney’s fees and costs.

To recover reasonable attorney’s fees and litigation costs incurred in

responding to this appeal before the Board, Ayres’ representatives must file a

sufficiently supported petition for such costs and fees within 30 days after receiving

this Decision and Order, with simultaneous service on opposing counsel.50

Thereafter, Weatherford shall have 30 days from its receipt of the fee petition to file

a response.

SO ORDERED.

48

Respondent’s Initial Brief (regarding Attorney Fee Order) at 7.

49

Attorney Fee Order at 4-5.

50

49 U.S.C. § 31105(b)(3)(A)(iii); 29 C.F.R. § 1978.110(d).