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ARB: Whistleblower Must Be Rehired — Even If Job No Longer Exists

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The U.S. Department of Labor’s Administrative Review Board (ARB) ordered the Mayo Clinic to rehire a mail truck driver it had removed for whistleblowing, despite the medical group’s protest that his job no longer exists — and that giving him a different job would require a promotion.

In its feisty ruling on Seehusen v. Mayo Clinic, the ARB told Mayo that it forfeited the issue by failing to raise it before a lower-level administrative law judge (ALJ). The board then showed its pique by noting that Mayo would have lost “even if we were inclined to address this argument.”

To allow Mayo to nit-pick its way out of compliance, a three-judge panel held, would be “an unconscionable ex[a]ltation of form over substance — a result the law does not permit.”

The ALJ had previously awarded damages and reinstatement to James Seehusen after finding that Mayo retaliated against the driver for complaining about a broken windshield and some procedural issues, in violation of the Surface Transportation Assistance Act (STAA). The ARB praised the judge’s decision as “most detailed, thorough, and replete with numerous supportive citations.”

Mayo appealed the ruling, however, saying that regulations “only permit reinstatement of an employee to his former position — not promotion to a position he never held.”

After rejecting Mayo’s contention as a non-starter, the ARB proceeded to demolish it on the merits anyway, citing testimony about the new job that Mayo was refusing to give to Mr. Seehusen.

Mr. Seehusen’s longtime boss had been asked about this position, the panel noted: It was the same job Mr. Seehusen had done for eight years, correct?

“Correct,” said the Mayo supervisor.

And would he call that a promotion?

“No.”

Besides, said the ARB, the Secretary of Labor — who is ultimately responsible for enforcing the STAA — had repeatedly ordered employers to reinstate workers to other jobs when their former jobs no longer existed. And Mayo has lots of other truck-driving  positions.

In short, the board concluded, there is “no reason to depart from the ALJ’s comprehensive and well-reasoned opinion.”

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