U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

ROBERT FRANTZ

LAURIE FRANTZ,

COMPLAINANTS,

ARB CASE NOS. 2021-0050

2021-0051

2021-0052

ALJ CASE NO. 2018-MAP-00003

ALJ SEAN M. RAMALEY

DATE: November 17, 2023

HOSELTON AUTOMOTIVE GROUP,

RESPONDENT.

Appearances:

For the Complainant:

Anthony J. LaDuca, Esq.; LaDuca Law Firm; Rochester, New York

For the Respondents:

Kevin J. Mulvehill, Esq.; Phillips Lytle LLP; Rochester, New York

Before HARTHILL, Chief Administrative Appeals Judge, and PUST and

WARREN, Administrative Appeals Judges

DECISION AND ORDER AFFIRMING, IN PART,

AND VACATING, IN PART

PUST, Administrative Appeals Judge:

This case arises under the Moving Ahead for Progress in the 21st Century

Act (MAP-21 or Act).1 Laurie Frantz (Complainant or Frantz) and her son, Robert

Frantz, filed complaints alleging that their former employer, Hoselton Automotive

Group (Respondent or Hoselton Automotive) retaliated against them in violation of

MAP-21’s whistleblower protection provisions. After a formal hearing, a United

States Department of Labor (DOL) Administrative Law Judge (ALJ) issued a

49 U.S.C. § 30171, as implemented by 29 C.F.R. Part 1988 (2023).

Decision and Order (D. & O.) denying Complainant’s complaint. Complainant

appealed the matter to the Administrative Review Board (ARB or Board).2 After

thoroughly examining the parties’ arguments and the record, the Board affirms, in

part, and vacates, in part, the ALJ’s D. & O.

BACKGROUND

Respondent is an automotive dealership that has several automotive

divisions, including Chevrolet, General Motors, Nissan, and Toyota.3 Respondent

hired Complainant as a warranty processor in 1993 and she worked there until

Respondent terminated her employment on January 8, 2018.4 As a warranty

processer, Complainant was responsible for processing customers’ claims for vehicle

repairs or replacements covered by the applicable manufacturer’s warranty and for

processing those claims “correctly and accurately.”5 Specifically, Complainant

ensured that the specific complaint, diagnosed cause, remedy, codes, and parts used

were correctly listed on the claim documentation before Complainant submitted

them to the vehicle manufacturer for reimbursement.6 Complainant’s job duties had

not historically included any expectation that she verify the certification status of

Respondent’s vehicle repair technicians, nor had she ever done so.7

Guy Kalpin (Kalpin) was Respondent’s Service Director during the relevant

timeframe. By August 2017, Kalpin was dissatisfied with the dealership’s warranty

administration, led by Complainant.8 On August 7, 2017, Kalpin contacted Randy

Shepard & Associates (RS&A), a large warranty claim processing company for new

car dealerships, to express interest in obtaining a mini-audit of certain warranty

claims due to his concern that the dealership’s technicians were not being

reimbursed for sufficient diagnostic time, specifically from Toyota.9 In a mini-audit,

a dealership typically selects a limited number of claims for a warranty processing

On July 3, 2019, the ALJ issued an Order Granting, In Part, and Denying, In Part,

Respondent’s Motion for Summary Decision and dismissed Robert Frantz’s complaint.

Robert Frantz did not appeal the ALJ’s dismissal.

D. & O. at 3.

Id.

Id. at 4; Hearing Transcript (Tr.) at 695.

D. & O. at 4; Tr. at 640, 737, 753-54. Complainant did not diagnose or directly repair

vehicles; that work was done by the Service Department. Tr. at 638-40.

D. & O. at 20; Tr. at 773.

D. & O. at 8, 10; Tr. at 929-30, 1112, 1125.

D. & O. at 17; Tr. at 887-89.

review as if the claims were being reviewed by the manufacturer.10 Respondent

elected not to use RS&A to perform a mini-audit at this time.11

Sometime in November 2017, Complainant became aware that Toyota had

recently instituted a Limited Service Campaign to inspect and correct potential

issues involving frame corrosion on certain models of Toyota vehicles.12 The Limited

Service Campaign resulted from a class action settlement in Warner v. Toyota Motor

Sales,13 through which Toyota announced a “Frame Inspection and Replacement

Program” for specific vehicles in identified cold climate states. Through the Limited

Service Campaign, Toyota provided inspection of the subject vehicles’ frames and

either replacement, if a specified standard of perforation was met, or the application

of a corrosion resistant compound (CRC) to protect the vehicle from further

corrosion caused by rust linked to an interaction with road salt.14 Toyota mandated

that dealerships only allow certified technicians to perform the Frame Inspection

and Replacement Program work as part of the CRC Limited Service Campaign in

order to have the cost reimbursed by Toyota.15

Around the same time, Kalpin sent an email to Michael Brienzi (Brienzi),

Respondent’s service manager, and Paul Palmer (Palmer), Respondent’s assistant

service manager, informing them that only certified technicians should be

performing airbag replacement work for Toyota as part of an unrelated Takata

Airbag Recall.16 Respondent did not notify Complainant of Toyota’s directive

regarding technician certification related to airbag replacement.17

D. & O. at 17, 19 n.2.

Tr. at 888.

D. & O. at 5, 25 n.4; Tr. at 632; Joint Exhibit (JX) 1, HOS039-40, 754-65.

D. & O. at 25 n.4 (citing Warner v. Toyota Motor Sales, U.S.A., Inc., No. CV 15-2171,

2016 WL 8578913, at *1 (C.D. Cal. Dec. 2, 2016)). The Board notes that this case decision

was not introduced at the hearing nor admitted into evidence. Complainant testified that

she was aware of caselaw involving CRC concerns. Tr. at 633. Nevertheless, the parties

cited to Warner throughout their filings before the ALJ and Board. A true and correct copy

of Warner was attached to the Memorandum of Law in Support of Respondent’s Motion for

Summary Judgment Relating to Complainants’ Complaint (Resp. Motion for Summary

Decision), Exhibit (Ex.) XX.

D. & O. at 25 n.4; JX 1, HOS039-40, 754-65.

D. & O. at 5, 9; Tr. at 643, 1197-98.

D. & O. at 19.

Id.

After learning that uncertified technicians were performing airbag recall

work, Kalpin initiated an investigation.18 As part of this investigation, Christine

Russo Brown (Russo Brown), Respondent’s customer relations employee, Steve

Carroll (Carroll), Respondent’s chief operating officer, and Shelly Wilson (Wilson), a

member of Respondent’s human resources department, interviewed Brienzi and

Palmer to discover what they knew about the Airbag Recall certification issues.19

Carroll asked Brienzi and Palmer if Complainant checked to ensure that the work

was performed by certified technicians before she processed claims.20 Brienzi stated,

“I do not think she would know. Not really her part.”21 Palmer replied that he was

unsure if Complainant was aware, but that “team leaders do know who can do

which work.”22 Respondent did not conduct any formal investigation, interviews, or

reviews regarding the certification of technicians performing work on the CRC

Limited Service Campaign.23

On November 16 and 17, 2017, MSX International performed a “courtesy

audit” on Respondent’s General Motors repair orders.24 The audit was based on a

random sampling of twenty-two repair orders from August 2017 to November

2017.25 The courtesy audit revealed that nineteen of the twenty-two repair orders

contained errors.26 The repair orders were processed by Robert Frantz,

Complainant’s son, who was also employed by Respondent to do warranty related

work.27 If such errors were discovered by the manufacturer, Respondent would be

“charged back” for its claim submissions, resulting in it not being reimbursed for

relevant warranty claim work.28

On November 21, 2017, Carroll emailed Kalpin about the possibility of

outsourcing Respondent’s warranty work.29 During this timeframe, Respondent

continued to service vehicles subject to the Airbag Recall with uncertified

Id.; Tr. at 1132.

D. & O. at 20; Tr. at 1079.

D. & O. at 20.

Id.; Tr. at 1006.

D. & O. at 20; Tr. at 1007; Complainant was not a “team leader” for Respondent.

D. & O. at 16; Tr. at 1097-98.

D. & O. at 8; Tr. at 943-44; Respondent’s Exhibit (RX) 3; JX 1, HOS007-13.

Tr. at 943-44; RX 3; JX 1, HOS007-13.

D. & O. at 8, 17; Tr. at 944; RX 3; JX 1, HOS007-13.

Robert Frantz worked as a warranty administrator for Respondent. D. & O. at 16;

Tr. at 1208.

Tr. at 940-41, 1134.

D. & O. at 10; Tr. at 951-52; JX 1, HOS041-42.

technicians, and also continued to allow uncertified technicians to perform frame

inspections and CRC applications on vehicles covered by the Limited Service

Campaign. On November 27, 2017, Respondent’s chief financial officer, Dennis

Segrue (Segrue), informed Carroll that use of uncertified technicians should be

stopped, that vehicles serviced by uncertified technicians should be brought back in

and reserviced properly, and that Carroll should “talk to [Complainant] or some

other reliable source” regarding how to properly document the necessary

remediation.30

On November 28, 2017, Kalpin called RS&A to initiate discussion about

RS&A taking on the dealership’s warranty work.31 Following the phone call, RS&A

sent Respondent a brochure and requested the dealership’s labor volumes via email.32 On November 29, 2017, Kalpin provided RS&A with Respondent’s labor

volumes, and RS&A replied with its labor rates.33

In early December, Kalpin learned that uncertified technicians were applying

CRC to vehicles covered under the Limited Service Campaign.34 On December 4,

2017, Kalpin informed Complainant that Respondent had terminated Brienzi’s

employment and that there were uncertified technicians in the service

department.35 On that same day, Kalpin e-mailed RS&A to continue to inquire

about contract specifics.36

On December 6, 2017, Complainant met with Kalpin and Palmer to discuss

subletting the CRC work to an outside source.37 At this meeting, Palmer informed

Complainant that Jagar Bingham (Bingham), a detailer for Respondent’s Toyota

division, had been performing CRC work since October 2017, and that Bingham was

not certified to work on the CRC Limited Service Campaign.38 According to

Complainant, upon receiving this information she told Carroll and Kalpin she

would no longer process CRC repair orders and wanted the vehicles that had been

previously serviced by uncertified technicians to be brought back to the dealership

D. & O. at 20; Tr. at 359, 387.

Tr. at 890.

D. & O. at 20; Tr. at 890.

D. & O. at 20.

D. & O. at 8; Tr. 1178.

D. & O. at 20. On November 30, 2017, Respondent terminated Brienzi’s employment

for his “lack of institutional control” including his continuing to allow noncertified

technicians to perform Toyota Airbag Recall work after being told not to do so. Id.

Id.; Tr. at 896.

D. & O. at 20.

Id. at 20; Tr. at 650, 851.

for proper inspection and repair.39 Yet, following this objection and request,

Complainant processed two CRC repair orders for work performed by uncertified

technicians on December 14, 2017.40 Complainant testified that she initially refused

to process the claims, but ultimately processed them after Marc Specht (Specht), a

service assistant and detail coordinator, called Complainant and assured her that

Ryan Brown (a certified technician) had re-inspected the vehicles.41 Complainant

did not independently verify which technicians performed the work on these claims

because she did not have the technicians’ codes, nor was it part of her regular duties

to do such verification.42

During the same time frame in mid-December, Carroll and Kalpin conducted

an internal test to determine whether Complainant was checking repair orders

before processing them.43 According to Carroll, Complainant submitted fifteen

repair orders and only one passed Respondent’s internal compliance test; the others

had internal errors and should not have been submitted.44

On December 19, 2017, Complainant texted Carroll and requested a meeting

due to her “very serious and valid concerns.”45 Complainant met with Carroll and

Kalpin on December 20, 2017, and showed them five repair orders in which the

CRC application had been performed by an uncertified technician.46 After the

meeting, Complainant recommended to Drew Hoselton, Respondent’s president,

that Respondent terminate Kalpin; he declined to do so.47

Approximately ten days later, Complainant began putting CRC campaign

orders in error status or deleting them from Axcessa, Respondent’s electronic

reporting system.48 Complainant put a CRC repair order in error status on

December 30, 2017, deleted a CRC repair order from the system and noted that it

D. & O. at 20; Tr. at 651, 653.

D. & O. at 20.

Id. at 20; Tr. at 653.

D. & O. at 20; Tr. at 805.

D. & O. at 10; Tr. at 971.

D. & O. at 10; Tr. at 971-72.

D. & O. at 21; Tr. at 677-78, 975.

D. & O. at 21; Carroll testified that he took a picture of four repair orders discussed

at the meeting. Tr. at 978.

D. & O. at 21.

Id.

did not meet Toyota guidelines on January 2, 2018, and deleted a CRC repair order

on January 6, 2018.49

On January 4, 2018, Kalpin informed RS&A that Respondent intended to

contract with it for warranty processing at Respondent’s Toyota and Nissan

divisions.50 On January 8, 2018, Kalpin and Wilson met with Complainant and

Robert Frantz.51 At the meeting, Kalpin initially informed Complainant and Robert

Frantz that Respondent was terminating their employment but Wilson interjected

that Kalpin was supposed to say that Respondent had “eliminated their positions.”52

Kalpin informed Complainant and Robert Frantz that Respondent intended to

outsource its warranty administration process to RS&A.53 RS&A began performing

Respondent’s Toyota and Nissan warranty processing services on January 9, 2018.54

On March 6, 2018, Complainant and Robert Frantz filed a complaint with the

Department of Labor’s Occupational Safety and Health Administration (OSHA)

alleging that “Respondent terminated [their] employment in retaliation for raising

concerns regarding uncertified technicians performing warranty and recall repairs

and not following recall procedures.”55 After sixty (60) days had elapsed without the

issuance of a determination by OSHA, pursuant to 29 C.F.R. § 1983.105(a),

Complainant and Robert Frantz requested that OSHA terminate its investigation

so they could proceed to an administrative hearing.56 On May 30, 2018, OSHA

dismissed the complaint, noting that its investigation to that date had left it unable

to conclude that there was reasonable cause to believe that a violation of MAP-21

Id. at 21-22.

Id. at 22; Tr. at 896.

D. & O. at 22. The record reflects that there were issues between Robert Frantz and

Respondent. On December 18, 2017, Kalpin and Palmer met with Robert Frantz and gave

him a new job description. Id. at 21. Carroll testified that Robert Frantz was given an

action plan because he refused to provide information about other employees. Id. at 10.

According to Carroll, Robert Frantz “claimed that the service manager made, signed,

falsified an RO and signed an RO, but yet the RO was submitted.” Id.; Tr. at 983-84. The

ALJ found that “[t]he evidence establishes that the purpose of giving Robert Frantz the job

description was to either force him to quit, or terminate him after he accepted the newly

crafted position description.” D. & O. at 21.

Id. at 22.

Id.

Id.; Tr. at 895-96.

Resp. Motion for Summary Decision, Ex. G.

D. & O. at 1.

had occurred.57 On June 21, 2018, Complainant and Robert Frantz timely requested

a hearing before an ALJ.58

Prior to the hearing, Respondent filed a Motion for Summary Judgment.59 On

July 3, 2019, the ALJ issued an Order Granting, In Part, and Denying, In Part,

Respondent’s Motion for Summary Decision.60 The ALJ dismissed Robert Frantz’s

complaint but denied Respondent’s request to dismiss Complainant’s complaint.61

The ALJ conducted the hearing on September 5 and 6, and October 29 and

30, 2019. On June 23, 2021, the ALJ issued a D. & O. denying Complainant’s

complaint. The ALJ concluded the following: (1) while Complainant’s objection and

refusal to process CRC claims involving the work of uncertified technicians were

both subjectively and objectively reasonable, her later processing of those same

claims constituted a deliberate violation of the Act which abrogated any claim to its

protections; (2) assuming, arguendo, that Complainant engaged in protected activity

and the deliberate violation provision of the Act did not bar her claim, her

employment termination was an adverse action to which Complainant’s protected

activities were contributory factors; and (3) Respondent proved that it would have

terminated Complainant’s employment in the absence of any alleged protected

activity, thus avoiding liability.62 On July 9, 2021, the ALJ issued an Attorney Fee

Order denying Complainant’s attorney’s fee petition for services rendered.63

On July 7, 2021, Complainant and Respondent each filed a petition for review

of the ALJ’s D. & O. Complainant challenged the ALJ’s finding that she deliberately

violated MAP-21 and thus forfeited its protections, and the ALJ’s alternative

conclusion that Respondent sufficiently established it would have terminated her

employment even if she had not engaged in any protected conduct.64 Respondent

challenged the ALJ’s factual basis for finding that Complainant engaged in

protected activity when she refused to process claims involving CRC work done by

uncertified technicians, and further appealed the ALJ’s finding on the contributing

Id.

Id. at 2.

Id.

Id. Robert Frantz did not appeal the dismissal.

Id. at 27, 33-34.

Attorney Fee Order at 1.

Complainant’s Petition for Review at 1-2; D. & O. at 27-28, 32-34. Complainant also

appealed the related order of the ALJ denying her request for an award of attorney’s fees.

factor causation element of the claim.65 The Board accepted and consolidated the

parties’ appeals for the purposes of rendering a decision. On July 13, 2021,

Complainant filed a petition for review of the ALJ’s Attorney Fee Order.66

JURISDICTION AND STANDARD OF REVIEW

The Secretary of the Department of Labor has delegated to the Board the

authority to review ALJ decisions under MAP-21.67 In MAP-21 cases, the Board

reviews questions of law presented on appeal de novo, but is bound by the ALJ’s

factual findings if they are supported by substantial evidence.68 Substantial

evidence is “such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.”69

DISCUSSION

1. Governing Law

To prevail on a MAP-21 claim, a complainant must prove by a preponderance

of the evidence that: (1) she engaged in activity that MAP-21 protects; (2) her

employer took adverse action against her; and (3) her protected activity was a

contributing factor in the adverse action.70 If the complainant meets this burden of

proof, the respondent may avoid liability if it proves by clear and convincing

evidence that it would have taken the same adverse action in the absence of the

complainant’s protected activity.71

Respondent’s Petition for Review to Administrative Review Board at 2-6; D. & O. at

24-27, 29-32.

Complainant’s [July 13, 2021] Petition for Review at 1; Attorney Fee Order at 1.

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).

29 C.F.R. § 1988.110(b); Procedures for Handling Retaliation Complaints Under

Section 31307 of the Moving Ahead for Progress in the 21st Century Act, 81 Fed. Reg.

13976 (Mar. 16, 2016) (MAP-21 Interim Rule). OSHA adopted, without change, the

provisions of the MAP-21 Interim Rule, which established procedures for the handling of

whistleblower complaints under MAP-21. Procedures for Handling Retaliation

Complainants Under Section 31307 of the Moving Ahead for Progress in the 21st Century

Act, 81 Fed. Reg. 90196, 90197 (Dec. 14, 2016) (MAP-21 Final Rule).

Kossen v. Empire Airlines, ARB No. 2022-0004, ALJ No. 2019-AIR-00022, slip op. at

5 (ARB June 13, 2023).

29 C.F.R. § 1988.109(a).

Id. § 1988.109(b).

In the present matter, there is no dispute between the parties regarding

whether Respondent terminated Complainant’s employment; thus, Complainant

suffered an adverse action. The remaining elements of the claim are disputed—

whether Complainant engaged in activity protected under MAP-21, whether

Complainant’s protected activity was a contributing factor in the adverse action,

and whether Respondent established by clear and convincing evidence that it would

have terminated her employment even if there had been no protected activity.

2. Protected Activity

A. ALJ’s Protected Activity Analysis

The applicable whistleblower provision of MAP-21 in this case is 49 U.S.C.

Section 30171(a)(5).72 This provision prohibits discrimination against an employee

At hearing and in her post-hearing brief filed with the ALJ, Complainant identified

her claim as based solely on her refusal to process CRC repair orders performed by

technicians that did not possess the certifications required by Toyota. As such, the ALJ’s

analysis centered on Section 30171(a)(5), which prohibits discrimination against an

employee if they “objected to, or refused to participate in, any activity that the employee

reasonably believe[s] to be in violation of any provision of chapter 301 of this title, or any

order, rule, regulation, standard, or ban under such provision.” 49 U.S.C. § 30171(a)(5).

Complainant never claimed that her protected conduct related to her “[providing]

information relating to any motor vehicle defect, noncompliance, or any violation or alleged

violation of any notification or reporting requirement of [the Act].” Section 30171(a)(1).

Other than in referencing Subsection (a)(1) in a recitation of the full Section 30171, the

ALJ’s analysis did not mention or rely on any finding of a motor vehicle defect but instead

was cast specifically, and correctly, as governed by Subsection (a)(5) of Section 30171.

In her filings with the Board, Complainant repeated the above-cited description of

her protected conduct, but also argued that:

[t]he Motor Vehicle ‘defect’ at issue in the present case relates to

a class action lawsuit alleging ‘subject vehicles lacked adequate

rust protection, resulting in premature rust corrosion that

compromises the structural integrity, safety, stability and crashworthiness of the vehicles.’ See Warner v. Toyota, Final Class

Action Settlement Order page 2. The process for performing the

recall is part of the Court Ordered Settlement.

Comp. Reply Brief at 9. Complainant connects this “defect” proposition only to the corrosion

at issue in the class action settlement order and the process to correct it; she does not

appear to be arguing that she provided information to Hoselton relating to this alleged

defect under Section 30171(a)(1). To the extent she is attempting to now argue that she

engaged in protected activity under Section (a)(1), such an argument has been waived, as

Complainant failed to raise this argument before the ALJ. See Schlagel v. Dow Corning

Corp., ARB No. 2002-0092, ALJ No. 2001-CER-00001, slip op. at 9 (ARB Apr. 30, 2004)

(stating that matters not raised to an ALJ are waived on appeal to the ARB); see also In re

who “objected to, or refused to participate in, any activity that the employee

reasonably believed to be in violation of any provision of chapter 301 of this title,73

or any order, rule, regulation, standard, or ban under such provision.”74

Complainant claimed before the ALJ that she engaged in the following

protected acts, all of which related to the use of uncertified technicians on the CRC

Limited Service Campaign:75

(1) informing Palmer, Carroll, and Kalpin on December 6 and

December 20, 2017, that she was refusing to process CRC

claims performed by uncertified technicians;76

(2) requesting information on Respondent’s plan to bring

vehicles affected by the CRC campaign back to the

dealership during a December 20, 2017 meeting;77

(3) putting CRC repair jobs into error status in Axcessa and

noting that the “repair [was] not done per Toyota

requirements;”78 and

(4) deleting “open” CRC repair jobs in Axcessa.79

Reviewing the factual averments in light of the evidence in the record, the

ALJ determined that only the first of these acts, objecting to and refusing to process

claims involving CRC-related work completed by uncertified technicians on

Palisades Urb. Renewal Enters., LLP, ARB No. 2007-0124, ALJ No. 2006-DBA-00001, slip

op. at 8 n.44 (ARB July 30, 2009) (citations omitted) (ARB does not consider arguments

made for the first time in reply briefs).

“[T]his title” refers to Title 49 of the United States Code.

Id. § 30171(a)(5); 29 C.F.R. § 1988.102(b)(5). Chapter 301 of MAP-21 is the

codification of the National Traffic and Motor Vehicle Safety Act of 1966 (NTMVSA). MAP21 Interim Rule, 81 Fed. Reg. at 13976-77. Chapter 301, at Subchapter II, provides for, but

is not limited to, the creation of federal [motor vehicle] safety standards, prohibitions on

manufacturing, selling, and importing noncomplying motor vehicles and equipment,

notification requirements and remedy procedures for defects and noncompliance. 49 U.S.C.

§§ 30111-29. The purpose of Chapter 301 “is to reduce traffic accidents and deaths and

injuries resulting from traffic accidents.” Id. § 30101.

None of Complainant’s allegations of protected conduct related specifically to the

Takata Airbag Recall effort. Complainant’s Post Hearing Brief (Comp. Post Hearing Br.) at

7-8 (only alleging CRC application concerns).

D. & O. at 25-26.

Id. at 26.

Id.

December 6 and December 20, 2017, were potentially protected under the Act.80 The

ALJ grounded this factual determination in his legal conclusion that “Respondent

violated Toyota’s safety standards that required the use of certified technicians,

which falls under MAP-21’s purview.”81 The ALJ provided no analytical explanation

for this legal conclusion, but merely cited to 49 U.S.C. § 30171(a)(5) and footnoted a

California federal court case in which Toyota had agreed to a settlement including

the CRC Limited Service Campaign.82

The ALJ then analyzed whether Complainant’s belief that Respondent’s use

of uncertified technicians to perform CRC work violated the Act, was reasonable as

required by MAP-21.83 The ALJ held that Complainant’s belief “was subjectively

reasonable because she actually believed that Respondent’s use of uncertified

technicians to perform work related to the CRC safety campaign violated safety

standards” and “was objectively reasonable because a similarly situated person

could have come to the same determination.”84 Although the ALJ found that

Complainant’s belief was both subjectively and objectively reasonable and thus that

she had engaged in protected conduct, the ALJ subsequently determined that

Id. Neither party appeals the ALJ’s limitation of the protected activity finding to the

December 6 and 20, 2017 communications, and so the Board does not address

Complainant’s earlier assertion that her entries into Axcessa evidenced further protected

activity.

Id. at 25.

The footnote provided:

Complainant asserted that she was aware of a case involving

recalls. Warner v. Toyota Motor Sales, U.S.A., Inc., No.

CV152171FMOFFMX, 2016 WL 8578913, at *1 (C.D. Cal. Dec.

2, 2016) (“[t]he Frame Inspection and Replacement Program will

provide prospective coverage for replacement of frames on

Subject Vehicles in accordance with Rust Perforation Standard

and the Inspection Protocol. The duration of prospective

coverage will begin following the date of Final Order and Final

Judgement and will be calculated by the longer of 12 years from

the date of First Use of the Subject Vehicle or, if the Class

Member has owned or leased the vehicle beyond 12 years from

date of First Use, 1 year from the date of entry of the Final Order

and Final Judgment.).

Id. at 25 n.4.

Id. at 27.

Id.

Complainant deliberately violated MAP-21, which negated her protection under the

Act.85

Both parties appeal different components of the ALJ’s protected activity

analysis. Respondent asserts that: (1) Complainant did not have a subjective good

faith or objectively reasonable belief that processing warranty claims for the work of

uncertified technicians violated MAP-21;86 and (2) processing CRC claims performed

by uncertified technicians does not constitute a violation of MAP-21, as a matter of

law.87 In response, Complainant argues that: (1) the ALJ properly found she held a

subjective, good faith belief that the use of uncertified technicians on the CRC

Limited Service Campaign was a violation of law, and that her belief was also

objectively reasonable;88 (2) refusing to process CRC claims performed by

uncertified technicians is protected under MAP-21 because there was a “motor

vehicle defect” and a court order requiring the use of certified technicians;89 and (3)

the ALJ erred in concluding that she deliberately violated the Act.90

As identified above, there are distinct components of the ALJ’s protected

activity analysis that have been challenged on appeal. Specifically, the Board’s

review must determine whether: (1) Complainant’s conduct was protected by the

Act; (2) she held a subjective, good faith belief that her actions related to a violation

of the Act; (3) her belief was objectively reasonable; and (4) she deliberately violated

the Act. The Board examines each legal issue in turn.

B. The ALJ Erred in Finding Respondent Violated Map-21

The ALJ found that “Respondent violated Toyota’s safety standards that

required the use of certified technicians, which falls under MAP-21’s purview.”91 In

reviewing this determination on appeal, the Board must interpret statutory

language consistent with congressional intent.92 Congress’ intent is most clearly

Id. at 27-28. The Board addresses the ALJ’s deliberate violation determination, infra

Part 2E.

Respondent’s Brief (Resp. Br.) at 44-55.

Id. at 23-44.

Complainant’s Reply Brief (Comp. Reply) at 2-8, 11.

Id. at 11-13.

Complainant’s Brief (Comp. Br.) at 16-21.

D. & O. at 25.

Byron v. I.E.H. Labs., ARB No. 2014-0087, ALJ No. 2014-FDA-00001, slip op. at 5-6

(ARB Sept. 28, 2016); see also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608

(1979).

expressed in the text of the statute; thus, the Board begins its analysis with an

examination of the plain language of the relevant provision.93

The applicable provision of MAP-21, Section 30171(a)(5), prohibits

discrimination against an employee who “objected to, or refused to participate in,

any activity that the employee reasonably believed to be in violation of any

provision of chapter 301 of this title, or any order, rule, regulation, standard, or

ban under such provision.”94 The phrase “under such provision” refers specifically

to “any provision of chapter 301.”

i. Violation of a court order is not within the purview of the Act

By its terms, Section 30171(a)(5) applies only to “orders” under any provision

of Chapter 301, it does not encompass any and all orders involving motor vehicles

issued by any entity not directly authorized by the Act. While the term “order” is

not defined under § 30102,95 review of the statute as a whole makes clear that

“order” refers to administrative orders issued by the Secretary of Transportation.

Under § 30118(b), Congress authorized the Secretary of Transportation to make

final decisions regarding a motor vehicle or replacement equipment that contains a

defect related to motor vehicle safety or does not comply with an applicable motor

vehicle standard prescribed under Chapter 301.96 Upon making such determination,

the Secretary of Transportation “shall order the manufacturer to” give notification

to owners, purchasers, and dealers of the defect or noncompliance or remedy the

defect or noncompliance.97 Other sections within Chapter 301 further reference

orders issued under § 30118(b) including: §§ 30120(g)-(i), discussing nonapplication

and limitations to orders for remedies and notifications; § 30161, discussing judicial

review of orders issued by the Secretary of Transportation; and §§ 30162(a)-(b),

discussing interested persons and procedural requirements for issuing an order

under § 30118(b).98 Thus, the term “order” in § 30171(a)(5) refers simply to orders

issued by the Secretary of Transportation under the authority of MAP-21.

Accordingly, the Class Action Settlement is not an “order” under MAP-21.

Complainant objected and refused to process warranty claims involving CRC

Bala v. Port Auth. Trans-Hudson Corp., ARB No. 2012-0048, ALJ No. 2010-FRS00026, slip op. at 5 (ARB Sept. 27, 2013) (citing Hagans v. Comm’r of Soc. Sec., 694 F.3d

287, 295 (3d Cir. 2012)).

49 U.S.C. § 30171(a)(5) (emphasis added).

See id. § 30102.

Id. § 30118(b).

Id. § 30118(b)(2).

See id. §§ 30120(g)-(i), 30161, 30162(a)-(b).

related work completed by uncertified technicians on December 6 and 20, 2017.99

Complainant, however, has not identified any Chapter 301 requirement that

requires such work to be done by a certified technician; nor could she, because, as

explained above, the Toyota class action settlement is not an “order” under Chapter

301.

ii. Toyota’s safety standards do not fall under MAP-21’s purview

Although Respondent did not argue before the ALJ or the ARB that

Complainant violated any “standard” under Chapter 301, the ALJ concluded that

“Respondent violated Toyota’s safety standards that required the use of certified

technicians, which falls under MAP-21’s purview.”100 The Board has thoroughly

examined the ALJ’s finding and independently researched caselaw, regulations, and

provisions of Chapter 301, but cannot identify any link between Toyota’s selfimposed safety standards and “standards” under the Act.

Although the term “standard” is not defined under § 30102,101 review of the

statute as a whole makes clear that “standard” has a precise meaning under MAP21. This is evident based on § 30111, entitled “Standards.” Under § 30111(a),

Congress authorized the Secretary of the Department of Transportation (DOT) to

prescribe “motor vehicle safety standards.”102 A “motor vehicle safety standard” is

defined as “a minimum standard for motor vehicle or motor vehicle equipment

performance.”103

In order to implement a standard, the Secretary of Transportation must

follow specific procedures, which include considering relevant motor vehicle safety

information, consulting with designated agencies and appropriate authorities,

considering whether a proposed standard is reasonable, practicable, and

appropriate, and considering whether the standard will carry out the Act’s purpose

and policy.104 Once a standard is prescribed, the Secretary of Transportation shall

specify the effective date of the standard under this chapter, which many not

become effective before the 180th day after the standard is prescribed or later than

29 C.F.R. § 1988.100(a) (stating “[t]his part sets forth procedures for, and

interpretation of, section 31307 of the Moving Ahead for Progress in the 21st Century

Act.”).

100

D. & O. at 25. We review the ALJ’s legal conclusions de novo. Supra note 68.

101

49 U.S.C. § 30102.

102

Id. § 30111(a).

103

Id. § 30102(a)(10).

104

Id. § 30111(b).

one year after it is prescribed.105 Additionally, the Secretary of Transportation is

obligated to “establish and periodically review and update on a continuing basis a 5year plan for testing motor vehicle safety standards prescribed under this chapter

that the Secretary [of Transportation] considers capable of being tested.”106

Thus, the term “standard” in § 30171(a)(5) refers to motor vehicle standards

prescribed by the Secretary of Transportation as discussed in § 30111. This

interpretation is further evidenced by DOL and DOT guidance. For example, the

MAP-21 Final Rule discusses Chapter 301 and the Secretary of Transportation’s

delegation of authority to the NHTSA to issue vehicle safety standards and to

require manufacturers to recall vehicles that have a safety-related defect or do not

meet federal safety standards.107

The DOT motor vehicle standards promulgated by the Secretary of

Transportation, through NHTSA, are found in the regulations published at 49

C.F.R. § 571. Because “each standard . . . applies according to its terms to all motor

vehicles or items of motor vehicle equipment,”108 unless a specific safety standard

directly addresses the issue identified as an alleged defect or matter of

noncompliance, these standards cannot form the basis of a litigant’s extrapolated

claim of liability tied to Chapter 301.109 None of these published Federal Motor

Vehicle Safety Standards specifically address the corrosion resistance specifications

of motor vehicle frames, nor do any of the standards involve the qualifications of

individuals assigned to apply CRC to motor vehicle component parts.

Contrary to the ALJ’s findings, the “Toyota safety standards” at issue in the

present case do not fall within MAP-21’s purview. The referenced “Toyota safety

standards” are not prescribed by the Secretary of Transportation and did not

involve regulatory or rulemaking processes. Instead, these safety standards relate

to quality assurance measures voluntarily implemented by Toyota. Thus, the ALJ

erred in finding that the “Toyota’s safety standards” relied upon by Complainant

fall under MAP-21’s purview.

105

Id. § 30111(d).

Id. § 30111(e). “In developing the plan and establishing testing priorities, the

Secretary [of Transportation] shall consider factors the Secretary considers appropriate,

consistent with section 30101 of this title and the Secretary’s other duties and powers

under this chapter.” Id.

106

107

MAP-21 Final Rule, 81 Fed. Reg. at 90197.

108

49 C.F.R. § 571.7(a) (2023) (emphasis added).

See Clarke v. TRW, Inc., 921 F. Supp. 927, 935 (N.D.N.Y. 1996) (noting that

NTMVSA statutory provisions prohibiting noncompliance with federal safety regulations do

not apply to establish a violation of law, relevant to claimant’s state law whistleblower

claim, when the specific terms of the Federal Motor Vehicle Safety Standards are not met).

109

Thus, Complainant has not identified any Chapter 301 “order” or “standard”

violation. Nevertheless, Complainant may prevail on her claim under Section

3017(a)(5) if she can establish that she objected to, or refused to participate in, an

activity that she reasonably believed to be in violation of any order or standard

under Chapter 301.110 An employee who objects to or refuses to participate in any

activity is protected so long as the employee’s belief of a violation is both subjectively

and objectively reasonable.111 The Board addresses each in turn.

C. The ALJ Correctly Found Complainant Established a Subjective Good

Faith Belief

An employee’s subjective, good faith belief is established so long as the

complainant actually believed that the conduct objected to violated the relevant law

or regulation.112 Here, the ALJ concluded that Complainant’s belief that a violation

of MAP-21 had occurred “was subjectively reasonable because she actually believed

that Respondent’s use of uncertified technicians to perform work related to the CRC

safety campaign violated safety standards[.]”113 Respondent argues that the ALJ

erred in this conclusion because Complainant never had a subjective belief that

there was a violation. Respondent seeks to support this assertion by pointing to

Palmer’s testimony that, when the Airbag Recall certification issue was discovered,

Complainant told him that Toyota had no system for knowing who was and was not

certified so it wasn’t a “huge problem” and the dealership did not have to “get all

worked up about it.”114 Presumably, Respondent insinuates that if Complainant was

not concerned with uncertified technicians performing Airbag Recall work, then

Complainant should have been equally not concerned with uncertified technicians

performing CRC work. Respondent also argues that Complainant had no personal

knowledge or evidence indicating that the CRC work performed by uncertified

technicians was done improperly; therefore, there was no link between motor

vehicle safety and her refusal to process the claims.115

49 U.S.C. § 30171(a)(5); 29 C.F.R. § 1988.102(b)(5) (emphasis added). Neither party

argued, and none of the evidence in the record established, that Complainant’s actions

related to her belief that a “rule” or “regulation” under Chapter 301 had been violated.

110

111

See MAP-21 Interim Rule, 81 Fed. Reg. at 13978.

Id. (citing Sylvester v. Parexel Int’l LLC, ARB No. 2007-0123, ALJ Nos. 2007-SOX00039, -00042, slip op. at 14-16 (ARB May 25, 2011) (discussing reasonable belief standard

under analogous language in the Sarbanes-Oxley Act of 2002 (SOX)).

112

113

D. & O. at 27.

114

Resp. Br. at 46; Tr. at 269, 271.

115

Resp. Br. at 46.

The Board finds these assertions to be unpersuasive. The ALJ heard both

Palmer’s and Complainant’s testimony on this issue116 and concluded Complainant

had credibly established that she did in fact believe that the use of uncertified

technicians on CRC work violated the Act.117 The Board generally defers to an ALJ’s

factual findings when they result from credibility judgments and determinations of

the weight to be given to conflicting witness testimony.118 While Complainant’s

belief may have been incorrect with regard to whether the use of uncertified

technicians actually constituted a violation of the Act, a mistaken belief is sufficient

if it is held in good faith.119

Respondent’s other claims—that absent Complainant’s own self-serving

testimony, there is no evidence that Complainant engaged in protected activity; that

Complainant cannot object to or refuse to do something that no one requested or

wanted her to do; and that Respondent was already aware of and trying to fix the

subject process—are just as unpersuasive. Substantial evidence supports the

finding that Complainant provided information about Respondent’s use of

uncertified technicians to perform work related to the CRC safety campaign, and

that Respondent was aware of her activity (Carroll confirmed that Complainant

brought repair orders to his attention during a December 20 meeting).120 In

addition, while Respondent is correct that (1) it was Complainant’s responsibility to

make sure that repair orders complied with manufacturer’s requirements and that

(2) Complainant was instructed not to process claims that contained errors or were

otherwise noncompliant, Respondent was also aware that it never provided

Complainant with the necessary certification codes or made it a specific part of her

job duties to identify which technicians were certified to perform which work, and so

claims were routinely processed involving work done by uncertified technicians.121

Complainant and her attorney engaged in the following dialogue on direct

examination: “Did you read about the CRC campaign? Yes.” “And did you read the case law

before you started the CRC campaign? Yes.” “And when you read campaigns like the CRC

campaign, is it optional to be certified? No. Is it mandatory? Yes.” Tr. 633, 643-44.

116

117

D. & O. at 27.

Jamek Eng’g Servs., Inc., ARB No. 2022-0039, ALJ No. 2017-DBA-00021, slip op. at

10 (ARB Sept. 22, 2022) (quoting Griffin v. Sec’y of Lab., ARB Nos. 2000-0032, -0033, ALJ

No. 1991-DBA-00094, slip op. at 9 (ARB May 30, 2003)).

118

Schaefer v. N.Y. Comm. Bancorp, Inc., ARB No. 2022-0050, ALJ Nos. 2018-SOX00048, -00051, slip op. at 14 n.92 (ARB June 22, 2023) (quoting Sylvester, ARB No. 20070123, slip op. at 16 (other citation omitted)).

119

120

D. & O. at 6; Tr. at 679.

Brienzi credibly testified that Complainant did not have these codes and that she

had to trust that the service writer and team leader was giving the jobs to qualified

technicians. Tr. at 129-30. Similarly, Kelly Watkins, a service manager from RS&A,

121

After Toyota specifically directed that only certified technicians could do work

associated with the Takata Airbag Recall and later the CRC Limited Service

Campaign, it is illogical for Respondent to both claim that Complainant could not

object or refuse to process claims involving uncertified technicians but at the same

time must only process claims that met Toyota’s requirements—all without being

provided the necessary certification codes.

We find that substantial evidence supports the ALJ’s finding that

Complainant’s belief that Respondent’s use of uncertified technicians to perform

work related to the CRC Limited Safety Campaign violated MAP-21 “was

subjectively reasonable because she actually believed [it].”122

D. Although the ALJ Erred by Not Supporting his Determination that

Complainant’s Belief was Objectively Reasonable, Remand is Unnecessary

As previously explained in Part C above, an employee engages in protected

activity under Section 30171(a)(5) if she provides information or complains to her

employer about, or refuses to participate in, an activity that she reasonably

believes violates any provision of Chapter 301 or any order, rule, regulation,

standard, or ban under Chapter 301.123

The employee’s belief is objectively reasonable if a reasonable person in the

same factual circumstances and with the same training and experience would have

testified that the dealership’s service department, and specifically the service advisor or

manager, is responsible for checking the technicians’ certifications. Id. at 909.

D. & O. at 27; Tr. at 633, 643-44, 650, 667-69. We note that, while analyzing

Complainant’s subjective belief, the ALJ stated, “Complainant satisfied this standard by

presenting facts about the protected activity that related to the general subject matter and

not outside the realm of MAP-21.” D. & O. at 27 (emphasis added). This is not an accurate

statement of the applicable standard or Complainant’s burden. First, as noted, supra note

72, the ALJ incorrectly conflated Sections 30171(a)(1) and (a)(5). In a Section 30171(a)(5)

case, a complainant satisfies her burden by presenting evidence that she actually believed

that the conduct objected to violated a provision under Chapter 301. Second, the ALJ

appears to have relied on a reviewing standard that applies at a different procedural stage

of the adjudicative process. See D. & O. at 27 (citing Evans v. EPA, ARB No. 2008-0059,

ALJ No. 2008-CAA-00003 (ARB July 31, 2012)). The Board in Evans examined an ALJ’s

dismissal of a complaint for failure to state a claim and held that to survive a motion to

dismiss, the complaint must be reviewed to determine whether it provides fair notice, which

encompasses “some facts about the protected activity and alleging that the facts relate to

the laws and regulations of one of the statutes in our jurisdiction.” Evans, ARB No. 20080059, slip op. at 11. Comparatively, in the present case, Complainant was required to (and

did) present evidence that she actually believed that the conduct objected to violated MAP21 because there was a full hearing on the merits.

122

123

49 U.S.C. § 30171(a)(5); 29 C.F.R. § 1988.102(b) (5) (emphasis added).

believed that the conduct about which she complained constituted a violation of the

pertinent law.124 A reasonable but mistaken belief that the respondent’s conduct

constitutes a violation of the applicable law can constitute protected activity.125

Here, the ALJ determined that Complainant’s belief that a violation of MAP21 had occurred “was objectively reasonable because a similarly situated person

could have come to the same determination.”126 The ALJ provided no analysis or

explanation of what a “similarly situated person” would believe when he made this

determination.127 In the absence of any such explanation by the ALJ, or

examination of the factual circumstances that led to his conclusion, the Board is left

with two choices—either conduct our own analysis based on a review of the record,

or remand to the ALJ to conduct that analysis.

Given the lack of analysis or citation to record evidence on this point, remand

to the ALJ would be the appropriate course of action, with instructions to conduct

the analysis and provide a thorough explanation of his finding. In this case,

however, remand is unnecessary128 because we agree with the ALJ’s finding on the

affirmative defense that Respondent proved by clear and convincing evidence that it

would have made the same decision to terminate Complainant’s employment in the

absence of any protected activity.129

E. Deliberate Violation

MAP-21 does not apply to an employee of a dealership “who, acting without

direction from such . . . dealership (or such person’s agent), deliberately causes a

MAP-21 Interim Rule, 81 Fed. Reg. at 13978 (citing Sylvester, ARB No. 2007-0123,

slip op. at 15).

124

125

Id. (citing Sylvester, ARB No. 2007-0123, slip op. at 16).

126

D. & O. at 27.

127

Id.

Yowell v. Fort Worth & W. R.R., ARB No. 2019-0039, ALJ No. 2018-FRS-00009, slip

op. at 9-10 (ARB Feb. 5, 2020) (finding remand for additional fact finding not necessary if

affirmative defense is sufficiently established) (citing Chen v. U.S. Dep’t of Justice, 471 F.3d

315, 338 (2d Cir. 2006) (“[A]n error does not require a remand if the remand would be

pointless because it is clear that the agency would adhere to its prior decision in the

absence of error.”)); Samson v. U.S. Dep’t of Lab., 732 F. App’x 444, 446-47 (7th Cir. 2018)

(ALJ’s error on the element of protected activity did not require remand when remand

would be “pointless” given that the issue of causation permitted only one result; this is so

because of the deference given to the ALJ’s credibility findings); Zhao v. Gonzales, 404 F.3d

295, 310-11 (5th Cir. 2005) (reversing Board of Immigration Appeals without remand for

fact-finding, finding it unnecessary under a narrow set of circumstances).

128

129

See Part 4, infra.

violation of any requirement relating to motor vehicle safety under this chapter.”130

The ALJ found that Complainant deliberately violated MAP-21 when she approved

and processed two repair orders without direct instruction from a supervisor after

becoming aware of and initially objecting to processing CRC claims using

uncertified technicians.131

i. Analysis of Deliberate Violation Defense

As noted, MAP-21 does not apply to an employee who, acting without

direction from its employer, deliberately causes a violation of any requirement

relating to motor vehicle safety under Chapter 301. MAP-21’s implementing

regulations are silent regarding this provision and there is scarce MAP-21 caselaw

addressing it.132 As such, the Board must look to other federal whistleblower

statutes and regulations for guidance. MAP-21’s implementing regulations

specifically indicate that consideration was given to the regulations implementing

the whistleblower provisions of the Wendell H. Ford Aviation Investment Reform

Act for the 21st Century (AIR-21), the SOX, and the Surface Transportation Act of

1982 (STAA).133 Moreover, the burden-shifting framework of the Energy

Reorganization Act of 1974 (ERA), which serves as a “gatekeeping function” that

stems frivolous complaints, is identical to the burden-shifting framework present in

MAP-21.134 Therefore, we look to these statutes to inform our analysis.

a. ERA’s Deliberate Violation Provision

Like MAP-21, the ERA also precludes protection to an employee who, acting

without direction from its employer, deliberately causes a violation of any

requirement of any statute listed in 29 C.F.R. § 24.100(a) or the Atomic Energy Act

of 1954 (AEA).135 The rule promulgated under the authority of the ERA (ERA Final

130

49 U.S.C. § 30171(d).

131

D. & O. at 28.

To date, the ARB has only issued one decision involving MAP-21. See Vasquez v.

Caterpillar Logistics, ARB No. 2017-0066, ALJ No. 2016-MAP-00001 (ARB Apr. 16, 2020)

(affirming ALJ’s Order Granting Motion for Summary Decision because the respondents

were not motor vehicle manufacturers, part suppliers, or dealerships). Likewise, federal

courts have limited precedent involving MAP-21. See Barcomb v. General Motors, LLC, 978

F.3d 545, 550 (8th Cir. 2020) (holding that an employee’s complaints about quality control

processes in a manufacturing plant are not information related to a motor vehicle defect,

and thus not protected under Section 30171(a)(1) of MAP-21).

132

133

See MAP-21 Interim Rule, 81 Fed. Reg. at 13978-79.

134

Id. at 13979.

135

42 U.S.C. § 5851(g); 29 C.F.R. § 24.102(e).

Rule) briefly discusses, in part, ERA’s deliberate violation provision,136 noting that

“the ARB interprets the phrase ‘deliberate violations’ for the purpose of denying

protection to an employee as including an element of willfulness.”137

b. AIR-21’s Deliberate Violation Provision

As more specifically defined in the statute, AIR-21 prohibits employers from

discharging or otherwise discriminating against employees because they provided

information to the employer or federal government relating to aviation safety

violations.138 Similar to MAP-21, AIR-21 provides that the protection provisions of

the statute shall not apply if the employee, “acting without direction from [the

employer] deliberately causes a violation of any requirement relating to aviation

safety . . . .”139 The relevant adopted rules, (AIR-21 Final Rule) discuss AIR-21’s

deliberate violation provision in greater detail, in part by acknowledging that

“[t]here is case law involving analogous provisions of other employee protection

statutes defining the phrase ‘deliberate violations’ for purposes of denying

protection to an employee who causes a violation of the applicable safety laws.”140

The AIR-21 Final Rule cites to Fields v. U.S. Department of Labor Administrative

Review Board, a case interpreting the ERA’s deliberate violation provision,141 and

states that the agency “anticipates that a similar construction of that term would be

applied under AIR-21.”142

c. Caselaw Interpreting Deliberate Violation Provisions

In Fields, the Eleventh Circuit Court of Appeals affirmed the ARB’s finding

that three employees deliberately caused an ERA violation and therefore lost any

protection under the statute.143 The employees were control room operators at a

nuclear power plant who were concerned with maintaining hydrogen pressure in

Procedures for the Handling of Retaliation Complaints Under the Employee

Protection Provisions of Six Environmental Statutes and Section 211 of the Energy

Reorganization Act of 1974, as Amended, 76 Fed. Reg. 2808 (Jan. 18, 2011) (ERA Final

Rule).

136

137

ERA Final Rule, 76 Fed. Reg. at 2810.

138

49 U.S.C. § 42121(a); 29 C.F.R. § 1979.102(b).

139

49 U.S.C. § 42121(d); 29 C.F.R. § 1979.102(c).

Procedures for the Handling of Discrimination Complaints under Section 519 of the

Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 68 Fed. Reg.

14100 (Mar. 21, 2003) (AIR-21 Final Rule).

140

141

Fields v. U.S. Dep’t of Lab. Admin. Rev. Bd., 173 F.3d 811 (11th Cir. 1999).

142

AIR-21 Final Rule, 68 Fed. Reg. at 14102.

143

Fields, 173 F.3d at 814.

accordance with the power plant’s mandated procedure.144 After notifying the

engineering department of their safety concerns and being reassured that

maintaining the pressure was “accurate and reasonably conservative,”145 the

employees felt that their safety concerns had not been adequately addressed and so

conducted their own tests to obtain data to verify their concerns.146 The nuclear

power plant disciplined the employees upon learning of these employee-conceived

and directed tests.147 After an evidentiary hearing on the employees’ filed

whistleblower complaints,148 an ALJ concluded that the employees had acted

deliberately and without direction from the nuclear power plant’s management

when they conducted unauthorized tests on a nuclear reactor.149 On appeal, the

ARB accepted the ALJ’s recommendation and concluded that the nuclear power

plant’s decision to discipline the employees was based on the employees’ “reckless

disregard” as to whether a nuclear violation would occur and that they “deliberately

caused a violation” of nuclear safety regulations.150

The Ninth Circuit affirmed the ARB’s interpretation of the ERA’s deliberate

violation provision and held that the employees’ “unauthorized frolics were just

what Congress envisioned when it made the whistleblower statute inapplicable to

‘any employee who, acting without direction from his or her employer . . .,

deliberately causes a violation . . . .’”151 In support of its decision, the court

determined that “regardless of their motives, . . . [the employees] moved knowingly

and dangerously beyond their authority when, on their own, and fully aware that

their employer would not approve, they conducted experiments inherently fraught

with danger.”152

Since Fields, the Board has examined other ERA cases involving the

deliberate violation provision. In Siemaszko v. First Energy Nuclear Operating

Co.,153 the Board noted that the deliberate violation provision is an affirmative

defense, devised a three-part test to determine whether an employer had

144

Id. at 812.

145

Id.

146

Id. at 813.

147

Id.

148

Id.

149

Id.

150

Id.

151

Id. at 814.

152

Id.

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

2003-ERA-00013 (ARB Feb. 29, 2012).

153

established the defense, and cautioned that the defense should be applied

narrowly.”154 Thus, to establish the deliberate violation defense, an employer must

show that: (1) the employee caused a violation of the pertinent statute(s); (2) the

violation was deliberate; and (3) the employee’s conduct occurred without the

employer’s direction.155

ii. The ALJ Erred in Determining that Complainant “Deliberately

Violated” MAP-21

The ALJ’s deliberate violation analysis reads, in full, as follows:

Complainant attests that she became aware that jobs were

being performed by uncertified technicians on December 4,

2017, and refused to process claims after learning that

Jagar Bingham was performing CRC recall-related

services two days, [sic] later on December 6, 2017. Yet,

Complainant admitted to approving the CRC-related work

performed on vehicles . . . on December 14, 2017, based on

a phone call from Team Leader Ryan Brown. Complainant

stated that she needed to trust the process. However, Ryan

Brown was not Complainant’s superior or supervisor, and

by her own testimony, was someone she did not trust. Her

clear distrust for Ryan Brown and the “system” in place

after she discovered the issue at the heart of this case, and

her subsequent failure to even inspect the repair order for

customer Green, after specifically questioning its

legitimacy, prevents Complainant from now availing

herself with MAP-21’s protections. Complainant cannot

object to the system in place, then continue to operate as

normal because of a misplaced trust [sic]that very system.

By continuing to process repair orders without further

investigation [sic] demonstrates her acquiescence in the

system, and is counter to either her refusal or objection to

follow Respondent’s processes. Complainant’s approvals

and processing of the McGrath and Green repair orders,

without direct instruction from a supervisor, especially

after becoming aware of the certification issue and making

her objection, eviscerates her prior objection. Therefore,

the protection afforded by MAP-21 does not apply to

154

Id. at 10-12.

155

Id. (citation omitted).

Complainant’s December 6 and 20, 2017 objections to

processing CRC claims.156

On appeal, Complainant argues that she did not deliberately violate the Act

when she processed the two CRC claims.157 Complainant claims that her actions

cannot be found willful or reckless because she had a good faith belief that Ryan

Brown had rechecked the repair orders158 and that processing the two orders did not

deliberately violate the Act because there is no evidence to suggest that these

specific repairs were not done properly.159 Moreover, Complainant insists that

Respondent should not be afforded protection under 49 U.S.C. § 30171(d) because it

failed to raise this affirmative defense before the ALJ.160

Respondent insists that substantial evidence supports the ALJ’s conclusion

that Complainant is not protected under MAP-21 as a result of her actions.161

Respondent asserts that assuming, arguendo, that certified technicians were

required under MAP-21, then: (1) Complainant’s actions caused the violations of a

requirement relating to motor vehicle safety;162 (2) her conduct was deliberate;163 (3)

Complainant’s actions were done without direction from the employer;164 and (4)

Complainant’s claim that Respondent failed to raise these issues before the ALJ is

incorrect.165

In reviewing the parties’ arguments on appeal, the Board liberally interprets

MAP-21, a remedial statute, in order to protect employees of discrimination and to

further Chapter 301’s underlying purpose of reducing “traffic accidents and deaths

and injuries resulting from traffic accidents.”166 While the Board interprets MAP21’s remedial protections broadly, we interpret this affirmative defense narrowly in

156

D. & O. at 28.

157

Comp. Br. at 16-21.

158

Id. at 18-20.

159

Id. at 20-21.

160

Id. at 21.

161

Response Brief for Respondent Employer (Resp. Res. Br.) at 8.

162

Id. at 11-19.

163

Id. at 19-24.

164

Id. at 24-29.

165

Id. at 29-33.

49 U.S.C. § 30101; see Bechtel Constr. Co. v. Sec’y of Labor, 50 F.3d 926, 932 (11th

Cir. 1995) (stating that “it is appropriate to give a broad construction to remedial statutes

such as nondiscrimination provisions in federal labor laws.”).

166

order to provide protection to employees who work within the bounds of safety.167

Thus, to have sufficiently established the deliberate violation defense under MAP21, the record below must establish, by a preponderance of the evidence168 that: (1)

Complainant caused a violation of any requirement relating to motor safety under

Chapter 301; (2) the violation was deliberate; and (3) Complainant’s conduct

occurred without Respondent’s direction.

a. The Affirmative Defense was Sufficiently Raised Below

As a preliminary matter, Complainant argues that Respondent failed to raise

the affirmative defense and cannot now be afforded its protection.169 In response,

Respondent claims that: (1) 49 U.S.C. § 30171 is not an affirmative defense; (2)

assuming, arguendo, that Section 30171(d) is an affirmative defense, Respondent’s

technical failure to plead the affirmative defense does not bar its consideration

because it did not result in unfair surprise; and (3) Respondent asserted facts

relating to the defense “in its papers and at trial.”170 Although the Board rejects

Respondent’s initial argument in its entirety in that the Board consistently

interprets Section 30171(d) as an affirmative defense, it addresses Respondent’s

remaining arguments in turn.

Respondent argues that its technical failure to plead an affirmative defense

does not bar that defense if it does not result in unfair surprise. Respondent cites to

Bradberry v. Jefferson County,171 in which the Fifth Circuit Court of Appeals held

that “if [a] defense is later presented ‘in a manner that does not result in unfair

surprise[,] . . . technical failure to comply precisely with’” a rule requiring a party to

affirmatively state any affirmative defense in its answer to a complaint is not

fatal.172 Bradberry is distinguishable from the present case because while the

Bradberry respondent failed to raise its defenses in its initial filing, it did raise the

affirmative defenses before the district court.173 In the present case, although

Respondent never formally raised the defense before the ALJ, Respondent is correct

See Siemaszko, ARB No. 2009-0123, slip op. at 12 (applying same logic to the ERA’s

deliberate violation provision).

167

See Hibler v. Exelon Generation Co., ARB No. 2005-0035, ALJ No. 2003-ERA-00009,

slip op. at 20 (ARB Mar. 30, 2006) (citing Fields v. Florida Power Corp., ARB No. 19970070, ALJ No. 1996-ERA-00022, slip op. at 2 n.3, aff’d sub nom. Fields v. U.S. Dep’t of Lab.,

173 F.3d 811 (11th Cir. 1999)).

168

169

Comp. Br. at 21.

170

Resp. Res. Br. at 30-31.

171

Bradberry v. Jefferson Cnty., 732 F.3d 540 (5th Cir. 2013).

172

Id. at 553.

173

Id.

that the deliberate violation affirmative defense is clearly listed in Section 30171,

the same section which underlies Complainant’s entire complaint. Thus, it should

not be a surprise to Complainant that the ALJ considered this provision while

assessing the merits of her claim.

Respondent’s more persuasive argument is that it asserted facts relating to

the defense “in its papers and at trial.” While Respondent never formally argued to

the ALJ that Complainant “deliberately” violated MAP-21, Respondent’s brief

before the ALJ is replete with arguments invoking such sentiment. 174 These

arguments include, but are not limited to, “[i]nstead of discovering the certification

issue, Complainant was the warranty administrator who improperly processed the

uncertified technician claims[,]”175 “[repair orders] should not be processed by a

warranty administrator if they are not compliant with the Toyota manual[,]”176 and

“it is undisputed that Complainant processed [a repair order] on December 14,

2017, and did so knowingly that Jagar Bingham had performed the underlying

work.”177 Similarly, several witnesses testified that Complainant processed claims

for work performed by uncertified technicians.178 The arguments and testimony

presented to the ALJ consistently alleged that Complainant may have improperly

processed two CRC claims on December 14—the same actions the ALJ held were

deliberate violations under MAP-21. Accordingly, Respondent’s Post Hearing Brief

and the witnesses’ testimony sufficiently triggered the ALJ’s consideration of the

affirmative defense. The Board finds that the ALJ did not err in considering the

affirmative defense based on the specific facts of this case.

b. The ALJ Erred in his Analysis of the Deliberate Violation Defense

Proper analysis of the deliberate violation defense requires specific

consideration of whether: (1) the employee caused a violation of the pertinent

statute(s); (2) the violation was deliberate; and (3) the employee’s conduct occurred

without the employer’s direction.179 The ALJ did not specifically address these

elements in the D. & O. Having reviewed the record in light of these requirements,

the Board determines that the ALJ erred in his analysis of the affirmative defense

for the reasons addressed below.

Post Hearing Brief on Behalf of Respondent Employer Hoselton Automotive Group

(Resp. Post Hearing Br.).

174

175

Id. at 17.

176

Id.

177

Id. at 41.

178

Tr. at 653, 1015, 1066, 1076, 1132.

See Siemaszko, ARB No. 2009-0123, slip op. at 12 (applying three-part test to

analyze the ERA’s deliberate violation defense); 49 U.S.C. § 30171(d).

179

To properly analyze MAP-21’s affirmative defense, the first element requires

proof that the employee caused a violation of the pertinent statute. In Siemaszko,

the Board focused on the finding that the employee falsely provided information to

or concealed material information from the Nuclear Regulatory Commission.180 The

Board determined that the elements of these criminal charges paralleled the

material components of 10 C.F.R. § 50.5(a)(2) and § 50.9(a), and that violations of

those regulations were also violations of the AEA and ERA.181 Comparatively in the

present case, the ALJ erred by not identifying “a violation of any requirement

relating to motor vehicle safety under [chapter 301].”182 Prior to the deliberate

violation analysis, the ALJ concluded that “Respondent violated Toyota’s safety

standards that required the use of certified technicians, which falls under MAP-21’s

purview.”183 In the deliberate violation analysis, the ALJ notes that Complainant

“admitted to approving the CRC-related work performed on vehicles . . . on

December 14, 2017.”184 These findings, separately or in conjunction with one

another, do not satisfy Section 30171(d)’s affirmative defense for the same reasons

that they do not constitute protected activity as discussed above: violation of

Toyota’s safety standards is not a violation of a standard under Chapter 301. Even

if it were, the ALJ was required to, and did not, identify the specific violation

relating to motor safety under Chapter 301 that resulted from Complainant’s

actions.

Establishing the second element of the defense requires proof that the

employee “deliberately” caused the violation to the pertinent statute. The Board has

specified that “deliberate” includes an element of “willfulness” or “recklessness” but

does not require a specific intent to cause a violation.185 In the present case, the ALJ

erred by not making a finding that Respondent proved that Complainant’s conduct

was “willful” or “reckless.” The Board notes that the ALJ’s analysis appears to

conclude that Complainant’s actions were at least reckless but does not explicitly

make that finding. For example, the ALJ focused on Complainant’s distrust for

Ryan Brown and Respondent’s “system” during the CRC campaign, Complainant’s

failure to inspect repair orders after questioning Respondent’s system, and the fact

that Complainant needed to trust the process after questioning and objecting to

Respondent’s system only a week prior.186 To satisfy the second element, however,

180

Siemaszko, ARB No. 2009-0123, slip op. at 13-14.

181

Id. at 14.

182

49 U.S.C. § 30171(d).

183

D. & O. at 25.

184

Id. at 28.

Fields, ARB No. 1997-0070, slip op. at 12-13; Siemaszko, ARB No. 2009-0123, slip

op. at 15.

185

186

D. & O. at 28.

the ALJ should have made a clear finding about whether Complainant’s actions

were “willful” or “reckless,” and erred in not doing so.

The third element of the deliberate violation defense requires proof that the

employee acted without the employer’s direction. The phrase “without direction” is

not defined or further discussed in the MAP-21 regulations, but the Board has

discussed this phrase in previous cases. In these cases, the Board has recognized:

(1) “direction” could be expressed or implied;187 (2) “mere presence of a supervisor

during the illegal conduct is not enough;”188 and (3) negligent management

oversight may not be sufficient.189 Examining the phrase “without direction,” the

Board in Siemaszko focused on “whether the employer was sufficiently involved

such that a reasonable factfinder could conclude that there was expressed or

implied ‘direction’ or ‘pressure’ on the complainant to commit the acts that led to the

violation.”190 The Board reasoned that this should be the main consideration when

determining whether the employee acted “without direction” because, without

weighing this consideration, an employer would in effect gain a windfall from

having violated the statute as a result of the employee’s misconduct, and the

statute’s safety purposes would be undermined.191

In the present case, the ALJ erred by not determining whether Complainant

acted “without the employer’s direction.” The Board acknowledges that the ALJ’s

analysis infers that Complainant’s actions were done without the employer’s

direction by discussing the events leading her to process the two CRC claims on

December 14, 2017, but again the analysis does not explicitly include that finding.

Specifically, the ALJ stated: “Complainant admitted to approving the CRC-related

work performed on vehicles . . . based on a phone call from team leader Ryan Brown

. . . . However, Ryan Brown was not Complainant’s superior or supervisor, and by

her own testimony, was someone she did not trust.”192 As an initial matter, the D. &

O. and the record are inconsistent as to whether Ryan Brown or Specht called

Complainant regarding the two vehicles’ repairs.193 This inconsistency is

Siemaszko, ARB No. 2009-0123, slip op. at 16-17 (citing Fields, ARB No. 1997-0070,

slip op. at 9).

187

Id. (citing Dotson v. Anderson Heating & Cooling, Inc., ALJ No. 1995-CAA-00011

(ARB July 17, 1996)).

188

189

Id. at 16-17 (citing Fields, ARB No. 1997-0070, slip op. at 8-9).

190

Id. at 17 (citations omitted).

Id. (citing Willy v. The Coastal Corp., Case No. 1985-CAA-00001, slip op. at 14 (Sec’y

June 1, 1994)).

191

192

D. & O. at 28.

193

Id. at 20, 28; Tr. at 653.

problematic because the ALJ’s analysis relies heavily upon the fact that Ryan

Brown made the phone call and he was not Complainant’s superior or supervisor.

In addition, the ALJ did not address Section 30171(d)’s preclusion of

protection to an employee “acting without direction from such motor vehicle

manufacturer, part supplier, or dealership (or such person’s agent) . . . .”194 The

ALJ correctly identifies that Ryan Brown was not Complainant’s superior or

supervisor but did not address the issue of agency. The deliberate violation

provision unambiguously uses the term “person’s agent,” a term that is not

defined.195 Nevertheless, the ALJ does not explicitly find that Ryan Brown was not

Respondent’s agent. Ryan Brown was a “team leader” and a person in such a

position could constitute a “person’s agent” under the Act. To properly analyze the

third element, the ALJ should have: (1) clearly identified who, if anyone, called

Complainant regarding processing the two claims; (2) determine whether this

individual was a “person’s agent” under Section 30171(d); and (3) if the individual

was a “person’s agent,” examine whether the individual was sufficiently involved

such that a reasonable factfinder could conclude that there was expressed or

implied direction or pressure put upon Complainant to commit the acts.

Accordingly, the Board VACATES the ALJ’s determination that

Complainant deliberately violated MAP-21. Although the Board finds that the ALJ

did not err in considering the deliberate violation defense, the ALJ erred in

analyzing the defense by not addressing the three-part test enumerated above.

Rather than conduct a de novo review of the record to determine whether

Complainant deliberately violated MAP-21, the Board would remand to the ALJ to

reassess the deliberate violation analysis consistent with our instructions. Yet, as

noted in Part 2Error! Reference source not found. above, remand is

unnecessary because we agree with the ALJ’s finding that Respondent proved by

clear and convincing evidence that would have terminated Complainant’s

employment even in the absence of any protected activity. Nevertheless, the Board

continues its review and examines the ALJ’s contributing factor analysis.

3. Although the ALJ erred in his Contributing Factor Analysis, the Error

was Harmless and We Affirm on Other Grounds

Assuming, arguendo, that Complainant established that she engaged in

protected activity and suffered an adverse employment action,196 Complainant must

demonstrate that the protected activity was a contributing factor in the adverse

194

49 U.S.C. § 30171(d) (emphasis added).

195

See id. § 30102.

The ALJ found that Complainant’s employment termination was an adverse action.

D. & O. at 28-29. Neither party challenged the ALJ’s adverse action finding.

196

action.197 The ARB has held that a contributing factor is any factor, which alone or

in combination with other factors, tends to affect in any way the outcome of the

decision.198 Employees may meet their evidentiary burden with circumstantial

evidence.199 Circumstantial evidence may include, but is not limited to, temporal

proximity, inconsistent application of an employer’s policies, pretext, shifting

explanations by the employer, or antagonism.200

Respondent argues that the ALJ erred: (1) by stating that a complainant

“automatically prevails” on contributing factor if she can prove both knowledge and

temporal proximity; (2) by failing to consider Respondent’s legitimate nondiscriminatory reasons for terminating her employment; and (3) by failing to

consider Respondent’s intervening events arguments.201 However, regardless of the

phrasing he used in his analysis, the ALJ did consider Respondent’s legitimate nondiscriminatory reasons, the intervening events, and other evidence, in addition to

knowledge and temporal proximity, to find that Complainant’s protected activity

was a contributing factor in her termination. This evidence includes: the events

between Kalpin’s initial contact with RS&A in August 2017 and Complainant’s

termination on January 8, 2018; Complainant’s prior work history—working for

Respondent for 25 years without a prior action plan or significant documented

performance or behavioral issues; the fact that 14 of Respondent’s 16 technicians

were not properly certified for the CRC work; Kalpin and Complainant’s contentious

working relationship; and Complainant being treated differently than a similarly

situated employee (Palmer).202

On this latter point, we find that the ALJ erred in concluding that

Complainant was treated differently than similarly situated employees. While the

ALJ correctly recounted that Carroll testified that he felt that Palmer and

Complainant were equally responsible for the CRC issues, and that Palmer was not

197

29 C.F.R. § 1988.109(a).

Williams v. QVC, Inc., ARB No. 2020-0019, ALJ No. 2018-SOX-00019, slip op. at 12

(ARB Jan. 17, 2023) (citation omitted).

198

199

Id. (citation omitted).

200

Id. (citation omitted).

See Resp. Br. at 90-91, Resp. Res. Br. at 64-65, 87-89. Respondent claimed that there

was a series of intervening events between Complainant’s alleged refusal to process

uncertified CRC claims and the effective date of the outsourcing of Hoselton Automotive’s

warranty administration, including, but not limited to: (1) Hoselton’s discovery that

Complainant was processing claims with errors on them without even looking at them; (2)

the other warranty administrator was processing claims he believed to contain fraudulent

signatures; and (3) Complainant’s husband came to Hoselton Automotive in order to engage

in an altercation with Kalpin. See Resp. Br. at 90-91; Resp. Post Hearing Br. at 77-78.

201

202

D. & O. at 30-32.

fired, the ALJ merely accepted Carroll’s conclusion that the two employees were

similarly situated without performing any legal analysis or considering the

distinguishing circumstances of their actions and positions.203 For example, the

record reflects that Palmer and Complainant had different job titles, different

supervisors, and different job duties. Moreover, unlike Complainant, Palmer did not

process CRC claims relating to work performed by uncertified technicians.204 These

factors should have been considered by the ALJ.

However, as noted in Part 2Error! Reference source not found. above,

remand for additional fact finding is not necessary because we agree with the ALJ’s

finding that Respondent proved by clear and convincing evidence that it would have

made the same decision to terminate Complainant’s employment, in the absence of

any protected activity. We address the ALJ’s affirmative defense finding in turn.

4. Affirmative Defense: The ALJ’s Finding that Respondent Established its

Same-Action Defense is Supported by Substantial Evidence

If a complainant demonstrates that her protected activity was a contributing

factor in the adverse action, the employer may avoid liability if it “demonstrates, by

clear and convincing evidence, that [it] would have taken the same unfavorable

personnel action in the absence of that behavior.”205 An employer satisfies this

burden when it shows that it is “highly probable” or “reasonably certain” that it

would have taken the action in the absence of protected activity.206

Although the ALJ concluded that Complainant did not engage in protected

activity,207 he nevertheless determined that Respondent proved by clear and

convincing evidence that it would have taken the same action against Complainant

if Complainant had not engaged in protected activity.208 Upon making this

determination, the ALJ relied upon Respondent’s intentions to outsource

203

Id. at 31; Tr. at 961.

204

D. & O. at 4-6, 14-15, 20-21, 28; Tr. at 235-36, 260, 950, 961, 1124.

205

49 U.S.C. § 30171(b)(2)(B)(iv); 29 C.F.R. § 1988.109(b).

Petitt v. Delta Airlines, Inc., ARB No. 2021-0014, ALJ No. 2018-AIR-00041, slip op.

at 19 (ARB Mar. 29, 2022) (citation omitted); see Cottier v. Bayou Concrete Pumping, LLC,

ARB No. 2020-0069, ALJ No. 2019-STA-00046, slip op. at 17 (ARB Jan. 18, 2022) (citing

Simpson v. Equity Transp. Co., ARB No. 2019-0010, ALJ No. 2017-STA-00076, slip op. at 9

(ARB May 13, 2020)).

206

207

D. & O. at 32.

208

Id. at 33.

Complainant’s job long before the CRC issues arose” and Complainant’s poor

working relationship with Kalpin.209

On appeal, Complainant argues that the ALJ erred in finding that

Respondent met its burden.210 Complainant contends: (1) Respondent never advised

RS&A about the Limited Service Campaign or gave RS&A technician codes, after it

outsourced its warranty administration, to ensure compliance with the Limited

Service Campaign;211 (2) the communications between Respondent and RS&A, in

which the ALJ relied upon, demonstrate that Respondent was interested in a “miniaudit” and not to outsource its entire warranty processing department;212 (3)

Respondent’s effort to terminate Complainant’s employment occurred after the CRC

issues came to light;213 (4) Respondent’s hesitance in terminating Complainant’s

employment is shown throughout the record;214 and (5) Complainant was a twentyfive-year employee with no performance issues and was highly regarded by

Hoselton and Segrue.215

Conversely, Respondent avers that the following substantial evidence

supports the ALJ’s conclusion: (1) Respondent wanted to outsource the warranty

administration department long before Complainant’s alleged protected activity;216

(2) Respondent did not have any animus towards Complainant for allegedly

engaging in her alleged protected activity;217 (3) Complainant’s performance and

behavioral issues led to her employment termination and Respondent’s outsourcing

decision;218 (4) Complainant continued to process CRC claims following her alleged

refusal;219 (5) Respondent was aware of and remedying the uncertified technician

issue before Complainant became aware of such issue;220 (6) “Complainant and

Kalpin had a terrible working relationship [and t]hey never got along;”221 (7)

209

Id.

210

Comp. Br. at 22.

211

Id. at 25.

212

Id. at 25-26.

213

Id. at 27.

214

Id. at 29.

215

Id. at 30-31.

216

Resp. Res. Br. at 38-58.

217

Id. at 58-63.

218

Id. at 64-67, 87-105.

219

Id. at 67-71.

220

Id. at 72-80.

221

Id. at 81-82.

Complainant was responsible for processing uncertified technician claims;222 (8)

Complainant and Robert Frantz “testified that they knew that they were marked to

go out the door prior to Complainant’s alleged protected activity;”223 (9) Robert

Frantz’s employment was terminated at the same time as Complainant, but he had

not raised any concerns related to processing CRC claims;224 and (10) Respondent’s

decision to outsource its warranty administration department was based on its

assessment that the warranty administration department was performing

unsatisfactorily and was not a pretext for retaliation.225

Substantial evidence supports the ALJ’s finding that Respondent proved by

clear and convincing evidence that it would have terminated Complainant’s

employment in the absence of protected activity. The record reflects that

Respondent intended to outsource Complainant’s job long before Complainant’s

protected activities on December 6 and December 20, 2017. Carroll credibly testified

that tensions between Kalpin and Complainant escalated in the summer of 2017

and that Kalpin wanted to make a change in the warranty administration

department.226 The record contains evidence that Kalpin and Carroll exchanged emails discussing possible changes in the warranty department. For example, in an

email entitled “Warranty Training + Processing,” the two discussed outside vendors

who could potentially replace Complainant and Robert Frantz to perform warranty

training and processing.227

Kalpin’s communications with RS&A also reflect that Respondent intended to

outsource its warranty administration department before Complainant engaged in

any protected activity. While Complainant is correct that the ALJ mischaracterized

Kalpin’s initial communications with RS&A, which only involved contracting with

RS&A to conduct a mini-audit, future communications between the parties

concerned Respondent’s intention to outsource its warranty administration

department to RS&A. Respondent’s intention to outsource its warranty

administration department was corroborated by Watkins, a service manager at

RS&A.228 Between November 28 and December 4, 2017, Kalpin and Watkins

discussed Respondent’s intention to outsource its warranty administration via

phone and e-mail.229 Watkins credibly testified that, during these communications

222

Id. at 83-86.

223

Id. at 86-87.

224

Id. at 105-06.

225

Id. at 106-08.

226

Supra note 118; D. & O. at 33; Tr. at 951-52, 1125-26.

227

Tr.at 951; JX 1, HOS041-42.

228

D. & O. at 17, 33; Tr. at 889-91, 913.

229

D. & O. at 17, 33; Tr. at 889-91, 913; JX 1, HOS043-44.

with Kalpin, she explained RS&A’s warranty administration services, provided an

RS&A brochure, requested Respondent’s labor volumes (which Kalpin provided),

indicated their service rates, and answered Kalpin’s questions.230 Watkins

concluded that Respondent was “definitely interested in bringing . . . all [of the

franchises] on for processing services.”231

Moreover, as recognized by the ALJ, the record clearly reflects that

Complainant and Kalpin could not work collaboratively and their working

relationship continued to devolve. Kalpin actively pursued multiple options to

terminate Complainant’s employment, outsource the warranty administration

department, as described above, and even “tested and trapped” Complainant with

internal audits.232 Carroll testified that Kalpin tested Complainant to see if she

would process claims without physical paperwork.233 Russo Brown corroborated

that Kalpin tested Complainant to determine if she was processing repair orders

without looking at actual documents.234 Additionally, other employees were aware

of Complainant and Kalpin’s poor working relationship.235 Hoselton ultimately

asked Complainant to write a letter to Kalpin in hopes that it would reconcile their

working relationship, but Complainant refused.236

In addition to the reasons set forth by the ALJ, the record contains evidence

that further supports the finding that Respondent established its same-action

defense, including that Kalpin trained other employees for warranty processing

administration237 and that Complainant’s husband appeared at the dealership to

confront Kalpin.238 Therefore, the Board AFFIRMS the ALJ’s affirmative defense

finding as supported by substantial evidence and in accordance with law.

230

D. & O. at 17, 31-32; Tr. at 889-91.

231

Tr. at 891.

232

D. & O. at 33.

233

Tr. at 971-72.

Id. at 1076-78; Russo Brown also testified that she questioned whether Complainant

had access to the hard copies of the repair orders. Id. at 1077.

234

235

Id. at 164, 253-54, 924-25, 929, 1233.

236

D. & O. at 21; Tr. at 841.

Kalpin advised Carroll that he wanted to start training Randy Whitlock “[a]s a

potential option in the future if [among other things, Respondent] decided to make a

change.” Tr. at 931. Whitlock took online warranty administration courses in September,

November, and December 2017. Id. at 936-37.

237

Id. at 980-82. Carroll testified that on December 21, 2017, Complainant’s husband

arrived at the dealership and appeared very angry. Id. at 981. According to Carroll,

Complainant’s husband was in the showroom and told Carroll, “[y]eah. We need to talk,

because I’m about ready to lose my cool. I’m going to find that guy Guy and let him know

238

Accordingly, as discussed above, the Board AFFIRMS the ALJ’s

determination that Complainant established a subjective good faith belief that she

objected to a MAP-21 violation,239 VACATES the ALJ’s determination that

Complainant deliberately violated MAP-21, VACATES the ALJ’s determination

that Complainant established her protected activity was a contributing factor in her

employment termination, and AFFIRMS the ALJ’s determination that Respondent

proved by clear and convincing evidence that it would have taken the same action

against Complainant regardless of whether Complainant engaged in protected

activity.

5. Attorney Fee Order

Complainant’s attorney filed a petition for review of the Attorney Fee Order.

The ALJ denied Complainant’s attorney’s fee petition for services rendered because

he determined that Respondent did not violate MAP-21.240

The ALJ did not err in denying the attorney’s fee petition. MAP-21’s

regulations provide that “[i]f the ALJ concludes that the respondent has violated

the law, the ALJ will issue an order that will require, where appropriate . . .

payment of compensatory damages, including” attorney fees.241 The Board affirms,

in part on other grounds, the ALJ’s D. & O., thus concurring in the ALJ’s conclusion

that relief may not be ordered against Respondent for a violation of MAP-21.

Accordingly, the ALJ correctly denied Complainant’s attorney’s fee petition and the

Board AFFIRMS the Attorney Fee Order.

what I really think about what happened yesterday. He’s going to know where I stand.” Id.

at 980. Carroll brought Complainant’s husband into an office near the showroom to explain

that he orchestrated the December 20, 2017 meeting and his rationale for the meeting. Id.

Carroll further testified that while in the office, Complainant’s husband stated “[w]hen I’m

doing with you I’m going to find that guy Guy and he’s going to know what I really feel.” Id.

at 981. Carroll feared that a confrontation between Complainant’s husband and Kalpin

would get “verbal and/or physical . . . somewhere in that building.” Id.

As noted above, the Board is not affirming or vacating the ALJ’s conclusion

regarding objective reasonableness. The ALJ provided no analysis or explanation to support

his conclusion. However, we need not to remand on this issue because substantial evidence

supports the ALJ’s finding that Respondent proved by clear and convincing evidence that it

would have terminated Complainant’s employment in the absence of any protected activity.

239

240

Attorney Fee Order at 1.

241

29 C.F.R. § 1988.109(d)(1).

CONCLUSION242

For the foregoing reasons, the Board AFFIRMS, in part, and VACATES, in

part, the ALJ’s D. & O., and AFFIRMS the ALJ’s Attorney Fee Order.

SO ORDERED.

__________________________________________

TAMMY L. PUST

Administrative Appeals Judge

__________________________________________

SUSAN HARTHILL

Chief Administrative Appeals Judge

______________________________________

IVEY S. WARREN

Administrative Appeals Judge

In any appeal of this Decision and Order that may be filed, the Board notes that the

appropriately named party is the Secretary, Department of Labor, not the Administrative

Review Board.

242

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.