U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

PATRICIA REED,

ADMINISTRATRIX OF

THE ESTATE OF

S. SCOTT SITTNER,

COMPLAINANT,

ARB CASE NOS. 2019-0062

2019-0066

ALJ CASE NO. 2017-PSI-00001

DATE: March 31, 2021

v.

JACOBS ENGINEERING GROUP,

SOUTHERN CALIFORNIA GAS,

and SEMPRA ENERGY,

RESPONDENTS.

Appearances:

For Patricia Reed, Administratrix of the Estate of S. Scott Sittner:

Richard E. Condit, Esq.; Cleveland Lawrence III, Esq.; Ezra

Bronstein, Esq.; Mehri & Skalet PLLC; Washington, District of

Columbia

For the Respondent:

Rick Bergstrom, Esq.; Koree Blyleven, Esq.; Jones Day; San Diego,

California; Nikki L. McArthur, Esq.; Jones Day; Washington, District

of Columbia

Before: James D. McGinley, Chief Administrative Appeals Judge, James A.

Haynes and Stephen M. Godek, Administrative Appeals Judges

2

DECISION AND ORDER

PER CURIAM. This case arises under the employee protection provisions of the

Pipeline Safety Improvement Act of 2002, 49 U.S.C. § 60129 (2020) (PSIA), and its

implementing regulations at 29 C.F.R. Part 1981 (2020). S. Scott Sittner1 filed a

complaint alleging that Respondents Jacobs Engineering Group (Jacobs), Southern

California Gas (SoCalGas), and Sempra Energy (Sempra) retaliated against him

because he engaged in PSIA-protected activities. On June 13, 2019, an

Administrative Law Judge (ALJ) issued a Decision and Order (D. & O.) denying the

complaint. For the following reasons we affirm the ALJ.

BACKGROUND

Jacobs, a technical and scientific services company, provided project

management consulting services to SoCalGas, a distributor of natural gas in

California. SoCalGas is indirectly owned by Sempra.

The California Public Utilities Commission (CPUC) required SoCalGas to

maintain a Pipeline Safety Enhancement Plan (PSEP) for testing and replacing

pipelines. Jacobs administered a PSEP Quality Plan (Quality Plan) as a service for

SoCalGas to organize documents related to SoCalGas’ pipeline construction

activities.

The Quality Plan was not mandated by CPUC or any federal or state law or

regulation.2 It was developed, implemented, and utilized by Jacobs’ Quality

Auditors. The Quality Auditors were not responsible for inspections, testing,

engineering, or construction but instead were required to “ensure that there was

agreement and consistency” in Quality Plan documents.3

In 2015, Jacobs decided to hire a PSEP Quality Manager whose duties would

include managing Quality Auditors and updating the Quality Plan. Phillip Andrew,

a Jacobs Program Director, was responsible for hiring and supervising the Quality

Manager. Delia Meraz, a SoCalGas Quality Risk and Compliance Manager,

participated in the selection process because the new Quality Manager would

interact with her on a regular basis.4

On September 17, 2020, Sittner’s counsel filed a Motion for Substitution of Party,

informing the Board that Sittner had passed away on December 19, 2019. The Board

granted the Motion on September 22, 2020.

1

2

D. & O. at 21.

3

Id.

4

Id. at 8.

3

Sittner applied for the position and, instead of hiring him as a permanent

employee, Jacobs hired him for a two-month trial period in order to determine if he

would be suitable for the position. Jacobs made no guarantee that Sittner’s

employment would be extended beyond this trial period.5 Soon after being hired

Sittner tried to convince one of the Quality Auditors to tell Andrew that he had

another job offer, in the hopes that this would “manipulate the situation” and lead

to him being hired as a permanent employee.6

Sittner’s first day of employment was June 8, 2015. Early in his tenure he

was engaged in a number of professional and personal conflicts with Jacobs’ staff.

He performed his supervisory duties in a “brusque and confrontational manner.”7

He made derogatory comments about employees and engaged in at least one

“heated argument.”8 Sittner also expressed his dissatisfaction with the

qualifications of the Quality Auditors.9 By Sittner’s third week of employment,

Andrew had on multiple occasions spoken to Sittner about his behavior. Around this

same time Sittner sent Meraz an email expressing his belief that Quality Auditors

were not properly utilizing audit checklists.10

Sittner understood that Andrew and Meraz expected him to make the

Quality Plan update his top work priority. But by the end of his fourth week, Meraz

informed Andrew that she had not seen any progress from Sittner regarding the

Quality Plan. Andrew met with Sittner and told him that the likelihood of him

being hired as a permanent employee “was not looking good.”11

At the end of Sittner’s fifth week of employment Meraz rated his performance

as “very low.”12 Sittner had demoralized staff and failed to produce any tangible

work product related to a revision of the Quality Plan.13 But he had continued to

Joint Exhibit (JX) 24 at 2 (“Temporary Employment Dates – Begin June 1, 2015.

End on July 31, 2015. This is our preferred timing. There is no guarantee of future

efforts.”).

5

6

D. & O. at 15.

7

Id. at 12.

8

Id. at 13.

9

Id. at 12-14.

JX 57 (“Instead of being thorough on the checklist, they use the report as the final

catch of information and are even filling out the checklist after they have done the report …

Adequate, properly documented training and written procedures/desk instructions detailing

the processes they are evaluating supports your stance as a manager.”).

10

11

D. & O. at 24.

12

Id. at 17.

13

Id.

4

express his dissatisfaction with what he perceived as a lack of auditor training. On

July 8, 2015, Sittner sent an email from his work account to his personal account

documenting his concerns and opining that the absence of proof of training created

a “stop work situation.”14 The email does not indicate that such documentation was

required by law.

On July 11, 2015, Sittner sent an email with twelve numbered paragraphs to

Andrew and Ted Potter, Andrew’s supervisor. In the twelfth paragraph Sittner

stated: “As the only Certified ANSI/ASME Quality Auditor in this effort, I can

honestly state that a Stop Work condition has existed for at least a year or more.

Sempra just doesn’t have procedures that would permit it. Which I suppose is a

stellar idea.”15 Andrew did not know what Sittner meant by a “Stop Work”

condition.

Andrew met with Sittner on July 13, 2015, to discuss the July 11 email.

During the meeting Andrew came to believe that Sittner felt a “Stop Work”

condition existed because “the quality audits and Quality Auditors had not been

certified or trained by [Sittner].”16 Andrew did not believe Sittner’s statement

addressed a safety regulation or standard that applied to the gas industry, and he

did not believe that Sittner had reported a safety concern or violation. Andrew also

began to question Sittner’s general understanding of the natural gas industry.17

After meeting with Sittner, Andrew discussed Sittner’s performance with

Meraz. They agreed that Sittner’s performance had been unsatisfactory. Andrew

then met with Potter, and they discussed Sittner’s unprofessional behavior and lack

of progress in updating the Quality Plan. Andrew decided to end Sittner’s trial

period two weeks prior to its anticipated eight-week term. On July 16, 2015, Sittner

met with Andrew, Potter, and Paul Gemmel, Jacobs’ Human Relations Business

Manager. They informed Sittner that his temporary employment would end on July

24, 2015. He was told that his employment was ending because he failed to update

the Quality Plan and had performed his job in an unprofessional and disruptive

manner.18

JX 68 at 1 (“1) I informed Delia for the 2nd time that the auditors had no official

training. 2) She said that is why they have [on-the-job training. 3) I asked her what

documentation she had and she said none. 4) I said we need to document all training (I had

stated this before). 5) As well the question comes up that if nobody in the group is certified

and qualified how did they qualify to be auditors? 6) Essentially this is a stop work

situation.”).

14

15

JX 75 at 2.

16

D. & O. at 18.

17

Id.

18

Id., citing Transcript (Tr.) 162-63, 594-95, 727-28.

5

Sittner filed his PSIA complaint with the Occupational Safety and Health

Administration (OSHA) on January 18, 2016. On November 18, 2016, OSHA issued

its determination stating that: “Complainant has requested that OSHA terminate

its investigation and issue a determination. Based on the information gathered thus

far in its investigation, OSHA is unable to conclude that there is reasonable cause

to believe that a violation of the statute occurred.”

Sittner thereafter requested a hearing on his complaint with the Office of

Administrative Law Judges, which the ALJ conducted from July 23 to July 27,

2018. Following the hearing the ALJ issued a Decision and Order concluding that

Sittner failed to prove that he engaged in protected activity under the PSIA and

Respondents demonstrated that they would have taken the same personnel action

in the absence of Sittner’s asserted protected activity.19

Sittner appealed the ALJ’s ruling on his complaint to the Board. SoCalGas

and Sempra filed a cross-appeal asking the Board to dismiss them as parties to this

matter.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the Board the authority to review

ALJ decisions under the PSIA.20 The ARB reviews questions of law presented on

appeal de novo, but is bound by the ALJ’s factual determinations if they are

supported by substantial evidence.21 Substantial evidence means “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”22

The Board will also uphold ALJ credibility determinations unless they are

“inherently incredible or patently unreasonable.”23

19

D. & O. at 29.

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).

20

21

29 C.F.R. § 1981.110(b).

22

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

Jacobs v. Liberty Logistics, Inc., ARB No. 2017-0080, ALJ No. 2016-STA-00007, slip

op. at 2 (ARB May 9, 2019); accord Formella v. U.S. Dep’t of Labor, 628 F.3d 381, 391 (7th

Cir. 2010) (“[T]he resolution of [a credibility contest] belongs in all but the extraordinary

case to the judge who heard and observed the witnesses first hand.”).

23

6

DISCUSSION

Congress passed the PSIA to enhance the safety of the nation’s pipeline

systems. The PSIA’s employee protection provision prohibits discrimination against

an employee who engages in certain types of protected activity, including (1)

providing to an employer or the Federal Government information relating to any

violation or alleged violation of any Federal law relating to pipeline safety; (2)

refusing to engage in any practice made unlawful by the PSIA; (3) providing

testimony before Congress or at any Federal or State proceeding regarding any

Federal law relating to pipeline safety; or (4) commencing, assisting or participating

in a proceeding under any Federal law relating to pipeline safety.24

To prevail on his complaint, Sittner must prove that he engaged in PSIAprotected activity, was subjected to an unfavorable personnel action, and that the

protected activity was a contributing factor in the unfavorable personnel action.25

Relief may not be ordered if the Respondents demonstrate by clear and convincing

evidence that they would have taken the same unfavorable personnel action in the

absence of any protected activity.26

Sittner suffered an adverse personnel action when his trial period was

terminated and he did not receive an offer of permanent employment. But the ALJ

concluded that Sittner never engaged in PSIA-protected activity during his trial

period. We agree.

Sittner’s alleged protected activities include his assertion that a “Stop Work”

condition existed as well as complaints about the qualifications and methods of the

Quality Auditors.27 None of his assertions or complaints constitute PSIA-protected

activity. Sittner’s belief that a “Stop Work” condition existed was based on his belief

that the Quality Auditors had been inadequately trained. But the Quality Auditors

tasks were governed only by the Quality Plan.

The Quality Plan was an internal auditing process that Jacobs and SoCalGas

created as a business practice that was “separate and distinct from the PSEP

requirements imposed on them by the C.F.R. and CPUC.”28 The reports the Quality

Auditors produced contained language indicating that “PSEP QRC review is

intended to provide feedback regarding the content and completeness of the

24

49 U.S.C. § 60129(a).

25

See 49 U.S.C. § 60129(b)(2)(B)(iii).

26

29 C.F.R. § 1981.109(a).

27

D. & O. at 20-21; see also Complainant’s Brief (Comp. Br.) at 18-26.

28

D. & O. at 21.

7

documents provided. This review does not validate the accuracy of the information

represented in the documents . . .”29

Sittner argues that, “[b]ecause the auditors were responsible for reviewing

and confirming information and documents related to those activities, the quality

auditors’ undocumented and otherwise inadequate training and insufficient audit

procedures can be reasonably viewed as potential violations of federal standards.”30

But he provided no legal support for this assertion or proof that the Quality

Auditors were performing their tasks in violation of any law. We therefore affirm

the ALJ’s conclusion that Sittner failed to prove that he engaged in activity

protected by the PSIA.31

Additionally, the record supports the ALJ’s conclusion that Sittner’s alleged

protected activity did not contribute to the termination of his trial period. Sittner

performed his job duties in an unprofessional manner and antagonized a number of

employees at Jacobs.32 Andrew and Meraz were dissatisfied with Sittner’s

performance prior to any communication that could potentially qualify as protected

activity. Andrew told Sittner at the mid-point of his trial period that it was unlikely

that he would be offered a permanent position. And Sittner admitted that he acted

unprofessionally and purposely misrepresented his knowledge of applicable

regulations.33 We therefore agree with the ALJ’s conclusion that “Sittner’s work

29

See, e.g., JX 103 at 2.

30

Comp. Br. at 38.

Sittner argues on appeal that the ALJ erred by finding that “Respondents did not

discuss Sittner’s protected activity before they agreed to fire him.” Complainant Scott

Sittner’s Reply Brief at 22. This is incorrect. The ALJ found that “[t]here is no doubt that

Mr. Andrew consulted Ms. Meraz about Complainant’s past e-mail communications.

Similarly, he also discussed Complainant’s e-mails with Mr. Potter and Mr. Gemmel.” D. &

O. at 26. The ALJ acknowledged that Respondents’ managers were aware of Sittner’s July

11, 2015 email, which included his concerns, and concluded that Sittner’s “Stop Work”

assertion did not contribute to his discharge despite the temporal proximity between the

two. See D. & O. at 24-27.

31

See, e.g., Id. at 10 (referred to an employee as a “dumb girl” who “should just be able

to do what he wants”); 12 (bluntly criticized members of the Quality Team in a manner they

found unprofessional or personally offensive); 13 (demonstrated an intent to use

embarrassment and intimidation as tools to motivate the Quality Auditors, sent an email

stating “[a] couple team meetings should pull it off, where I pistol whip with a pencil,” and

an e-mail stating that “Jacobs has no clue what is going on” and characterized the Quality

Auditors as “weak people”) and 14 (failed to fully grasp that he was creating a hostile work

environment, referred to other employees as “dumb” or an “idiot,” injected “chaos” into team

relationships, and caused “discontent” among the quality auditing team).

32

33

Id. at 28.

8

conduct and performance never approached anything that could be legitimately

described as satisfactory to Respondents.”34

Finally, on August 14, 2019, Respondents SoCalGas and Sempra filed a

Petition for Review asking the Board to find that they cannot be responsible for

providing relief to Sittner because they neither employed him nor acted in any

capacity as his employer.35 SoCalGas and Sempra raised this issue before the ALJ.

The PSIA prohibits “employers” from retaliating against “employees.” The

ALJ noted that the parties in this matter have stipulated that it was Jacobs that

hired Sittner. But the ALJ did not make specific findings of fact regarding which

Respondents were liable as “employers” under the PSIA. Instead, the ALJ

concluded that, because he was dismissing the complaint, it was “unnecessary to

resolve the contested issue of whether [SoCalGas and Sempra] are also liable as

employers under this claim.”36

We agree with this conclusion. As we are affirming the ALJ’s dismissal of the

complaint, we need not remand this case to the ALJ to issue additional findings

that would allow us to determine which Respondents would be liable under the

PSIA in Sittner had prevailed in this matter.

CONCLUSION

Sittner failed to prove that he engaged in PSIA-protected activity, and

Respondents have proven that Sittner’s alleged protected activities did not

contribute to the decision to end his employment. We therefore AFFIRM the ALJ’s

D. & O. and DENY the complaint.

SO ORDERED.

34

Id.

35

Respondents’ Brief in Support of Cross-Petition for Review of D. & O. at 4.

36

D. & O. at 20, n.6.