2015 Update from the Benefits Review Board

By Karen Koenig, Associate General Counsel, Longshore Division, U.S. Department of Labor, Washington, D.C.

BRB Personnel News

The membership of the Benefits Review Board has changed quite a bit in the past year.  Judge Betty Jean Hall, who has been the Acting Chair and Chief Administrative Appeals Judge since the retirement of Judge Nancy Dolder in April 2014, was named the Chair and Chief Administrative Appeals Judge on April 13, 2015.  Judge Roy P. Smith retired in September 2014, after 45 years of government service, including the last 32 with the Board.  Judge Regina C. McGranery will retire effective May 29, 2015, having served at the Board for 31 years.

Greg J. Buzzard was appointed Administrative Appeals Judge on December 28, 2014.  Judge Buzzard spent eight years as an advisor in various capacities to U.S. Senator John D. Rockefeller IV, most recently as the senator’s general counsel.  He is a graduate of the West Virginia University College of Business and Economics and the West Virginia University College of Law.

Ryan C. Gilligan was appointed Vice Chair and Administrative Appeals Judge on May 4, 2015.  Prior to his appointment, Judge Gilligan operated his own law firm in Abingdon, Virginia, which focused on litigation consulting.  He spent the early part of his career litigating federal black lung claims, and gained significant appellate litigation experience in cases before federal circuit courts of appeal.  He is a graduate of Virginia Tech and the Appalachian School of Law.

(Publisher’s Note: All citations link to Lexis Advance.)

BRB Statistical Update

The Board began Fiscal Year 2015 in October 2014 with 111 pending Longshore/DBA appeals.  During the last fiscal year, which ended September 30, 2014, the Board received 171 appeals in cases under the Longshore and Defense Base Acts (Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.S. § 901 et seq., and Defense Base Act extension to LHWCA, 42 U.S.C.S. § 1651 et seq.), 37 fewer than the year before.  189 decisions were issued, 8 fewer than the year before; 23 orders on reconsideration also were issued in Fiscal Year 2014.  In Fiscal Year 2014, the Courts of Appeals issued decisions or orders in 25 of the Board’s Longshore/DBA decisions, and the Board received an affirmative disposition in 92 percent of the cases. 

As of April 30, 2015, the Board has approximately 103 pending Longshore appeals, a figure which includes 13 appeals under the DBA.  This fiscal year, the Board has received 86 Longshore/DBA appeals and issued 98 decisions or orders.  The Board has received 10 decisions from appellate courts, all of them favorable. 

Section 49 standard addressed in view of Greenwich Collieries

In its recent decision in Babick v. Todd Pacific Shipyards Corp., 49 BRBS 11 (2015), the Board addressed the parties’ burdens of proof in a Section 49 discrimination claim (33 U.S.C.S. § 948a).  The Board had long followed the decision of the United States Court of Appeals for the D.C. Circuit in Geddes v. Benefits Review Board, 735 F.2d 1412, 16 BRBS 88(CRT) (D.C. Cir. 1984).  Under Geddes, in order to establish a prima facie case of discrimination, a claimant had to demonstrate that his employer committed a discriminatory act motivated by discriminatory animus or intent.  Once the claimant met this burden, a rebuttable presumption arose that the employer’s action was motivated at least in part by the claimant’s involvement in a claim under the Act.  The burden shifted to the employer to prove that it was not motivated, even in part, by the claimant’s exercise of his rights under the Act (LHWCA, 33 U.S.C.S. § 901 et seq).  Id., 735 F.2d at 1418, 16 BRBS at 93(CRT).  Decisions by other courts of appeals have neither utilized nor criticized the Geddes approach.  See, e.g., Ledet v. Phillips Petroleum Co., 163 F.3d 901, 32 BRBS 212(CRT) (5th Cir. 1998); Norfolk Shipbuilding & Drydock Corp. v. Nance, 858 F.2d 182, 21 BRBS 166(CRT) (4th Cir. 1988), cert. denied, 492 U.S. 911, 106 L. Ed. 2d 577, 109 S. Ct. 3228 (1989).

The administrative law judge found that the employer in Babick had discriminated against the claimant by suspending him for three days, ostensibly for violating a safety rule.  The suspension occurred after the claimant had filed a compensation claim.  The employer in Babick contended that the Geddes formulation was inconsistent with the Supreme Court’s subsequent decision in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 129 L. Ed. 2d 221, 114 S. Ct. 2251, 28 BRBS 43(CRT) (1994), in that the employer bore the burden of establishing its action was not discriminatory, instead of the claimant’s bearing the burden of showing that employer’s action was discriminatory.  The Board agreed that the Geddes approach did not withstand scrutiny in view of Greenwich Collieries, and therefore overruled its own prior precedent.

The Board set out the following standard for analyzing claims under Section 49 of the Act:

“1.   A claimant’s initial burden is to make out a prima facie case of discrimination under Section 49.  That is, he must “produce enough evidence to permit the trier of fact to infer” that employer committed a discriminatory act motivated by discriminatory animus.  Rose v. Wells Fargo & Co., 902 F.2d 1417, 1420 (9th Cir. 1990) (internal quotes omitted).  If the claimant makes out a prima facie case, he is entitled to a rebuttable presumption that his employer violated Section 49 of the Act.  See American Grain Trimmers v. Director, OWCP, 181 F.3d 810, 33 BRBS 71(CRT) (7th Cir. 1999), cert. denied, 528 U.S. 1187 (2000).

2.     An employer’s burden on rebuttal is one of production only, that is, it must produce substantial evidence that it acted for non-discriminatory reasons.  If the employer produces such substantial evidence, the presumption falls from the case.  American Grain Trimmers, 181 F.3d at 816-818, 33 BRBS at 74-78(CRT); Rose, 902 F.2d at 1420.

3.     The claimant, who bears the ultimate burden of persuasion, then must prove by a preponderance of the evidence that employer committed a discriminatory act against him motivated by claim for compensation under the Act, i.e., that the action was taken because of the claimant’s protected activity.  See, e.g., Greenwich Collieries, 512 U.S. 267, 28 BRBS 43(CRT); Machado v. National Steel & Shipbuilding Co., 9 BRBS 803 (1978); see generally Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009).”

[Editor’s note: here are full citations for cases cited by BRB:  See American Grain Trimmers v. Director, OWCP (Janich), 181 F.3d 810, 33 BRBS 71(CRT) (7th Cir. 1999), cert. denied, 528 U.S. 1187, 146 L. Ed. 2d 98, 120 S. Ct. 1239 (2000).  Gross v. FBL Financial Services, Inc., 557 U.S. 167, 174 L. Ed. 2d 119, 129 S. Ct. 2343 (2009).]

Applying this standard to the facts in Babick, the Board affirmed the  administrative law judge’s finding that the claimant established a prima facie case, doing so solely on the grounds that the claimant established he had been suspended (the act), and that the suspension occurred after the claimant had filed a claim for benefits for his seventh work-related injury.  From this evidence, the administrative law judge could infer that the suspension was motivated by discriminatory animus.  Thus, the burden shifted to the employer to produce substantial evidence that its action was not due to claimant’s filing a claim.  The Board held that the employer produced such substantial evidence as it had voluntarily paid the claimant some benefits for the February 2010 injury before the claim was filed and an additional day of compensation shortly after the claim was filed.  In addition, one of the officials who acted to suspend the claimant stated he was unaware that the claimant had filed a compensation claim.

Thus, the burden shifted back to the claimant to persuade the administrative law judge by a preponderance of the evidence that the employer discriminated against him due to his filing a compensation claim.  The Board remanded the case for the administrative law judge to make findings of fact based on the record as a whole.  The Board observed that the administrative law judge may examine the circumstances of the action taken against the claimant to determine whether the employer’s reason for the action is the actual motive or is a mere pretext; the administrative law judge may infer animus from the circumstances.  The manner in which the claimant is treated in relation to the employer’s customary employment practices may support an inference that the employer’s true motive was retaliation for the filing of the compensation claim. 

However, the Board agreed with the employer that the administrative law judge had drawn improper inferences in this case, leading him to conclude that the employer’s suspension of claimant was pretextual.  Specifically, the administrative law judge’s finding that the employer’s motive for disciplining the claimant was due to his filing a claim was premised on the “facts” that the employer did not establish that the claimant had violated any specific safety rule, either in 2009 or in 2010, and should not have been disciplined, and that an employer cannot “blame” its employees for injuries that occur without an obvious environmental cause.  The Board held that this focus was incorrect.  The issue under Section 49 is not whether an employer may discipline its employee for the occurrence of work accidents or whether such discipline is objectively reasonable; the issue is whether the discipline imposed was due to the employee’s filing of a compensation claim.  The United States Court of Appeals for the Fourth Circuit has stated that “[o]ur task is not to pass judgment on the wisdom of rules established by competing parties in the marketplace.  Our task is to determine if the rules are designed to or do in practice discriminate.”  Holliman v.  Newport News Shipbuilding & Dry Dock Co., 852 F.2d 759, 762, 21 BRBS 124, 129(CRT) (4th Cir. 1988).  See also Mueller Brass Co. v. NLRB, 544 F.2d 815, 819 (5th Cir. 1977) (“Management can discharge for good cause, or bad cause, or no cause at all . . . [but] . . . it may not discharge when the real motivating purpose is to do that which [the Act] forbids.”).

© Copyright 2015 United States Department of Labor.  All rights reserved. Reprinted by permission.

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