Labor Board Affirms Dismissal of UPS Whistleblower Lawsuit

The Administrative Review Board (“ARB”) of the U.S. Department of Labor (“DOL”) upheld the decision of an administrative law judge (“ALJ”) dismissing a whistleblower retaliation complaint made by an employee of the United Parcel Service (“UPS”).  Samuel J. Bucalo filed a complaint in March of 2008, alleging that UPS and Teamsters Local 100 colluded to withdraw grievances he filed against UPS, and that Local 100 refused to allow him to represent himself at some of his grievance hearings.  According to Bucalo, UPS and Local 100 retaliated against him for complaining to various authorities about safety violations UPS committed between 2000 and 2008.

Following an investigation, the Occupational Safety and Health Administration (“OSHA”) issued a determination letter rejecting Bucalo’s complaint, whereupon he filed objections and requested a hearing before an ALJ.  While Bucalo survived initial motions to dismiss before the ALJ, following discovery the ALJ granted motions for summary judgment and dismissed Bucalo’s complaint.  Bucalo appealed to the ARB.

Bucalo alleged in his complaint that UPS violated the whistleblower protection provisions of the Sarbanes-Oxley Act (“SOX”), the Surface Transportation Assistance Act (“STAA”), and the Toxic Substances Control Act (“TSCA”) by colluding with or inducing Local 100 to withdraw grievances he filed through the union against UPS.  Bucalo further alleged that Local 100 violated the SOX, STAA, and the TSCA by refusing to allow him to present his own grievances at hearings and by withdrawing some of those grievances without his authorization.

Ruling on the Respondents’ motions for summary decision, the ALJ found that Bucalo had not set forth specific facts showing that there existed a genuine issue of material fact in dispute with respect to whether UPS had colluded with Local 100 in taking adverse action against him, or whether there was a causal relationship between Bucalo’s alleged protected activity and the alleged adverse actions.   To the contrary, the ALJ found that Local 100’s treatment of Bucalo was based upon Bucalo’s “refusal to cooperate with the union.”  The ARB agreed, finding that Bucalo “failed to proffer sufficient evidence to create a genuine issue of material fact regarding the necessary nexus between his alleged protected activity and the alleged adverse actions.”

Finally, the Board addressed Bucalo’s claim that he lacked evidence to support his claim because UPS and Local 100 had not sufficiently responded to his discovery requests.  The Board held that

a party may not postpone a ruling on a motion for summary decision ‘in order to engage in further discovery when that party has offered no more than speculation as to what facts might be uncovered.’  Moore v. U.S. Dep’t of Energy, ARB No. 99-047, ALJ No. 1998-CAA-016, slip op at 4 (ARB June 25, 2001).  Instead, a party seeking further discovery ‘is required to state with some precision the materials he hopes to obtain with further discovery, and exactly how he expects those materials would help him in opposing summary judgment.’  Id.

The Board found that before the ALJ as well as before the ARB, Bucalo had failed to explain how further discovery would provide him with evidence supporting his claim of retaliation.  Accordingly, the Board rejected Bucalo’s argument and affirmed the ALJ’s dismissal of the case.