Administrative Review Board Decisions

The following case summaries were created by the Administrative Review Board staff.

Barhaghi v. OB/GYN Affiliates & Prosum, ARB No. 2024-0061, ALJ No. 2023-TAX-00010 (ARB Feb. 27, 2026) (Decision and Order Reversing and Remanding)

In Barhaghi v. OB/GYN Affiliates & Prosum, ARB No. 2024-0061, ALJ No. 2023-TAX-00010 (ARB Feb. 27, 2026), the ALJ granted Respondent's motion for summary decision on the basis that Complainant's Taxpayer First Act (TFA) complaint was untimely filed. Complainant appealed the ALJ decision to the ARB. The ARB reversed the ALJ decision due to an error of law and a genuine dispute of material fact.

Before the ALJ, Respondent filed a motion for summary decision in which it argued that Complainant's TFA complaint alleging Complainant was retaliatorily terminated for complaining of tax violations was untimely. Respondent argued Complainant filed her complaint online on March 2, 2023,  which was past the 180-day deadline to file a TFA complaint. Complainant opposed Respondent's motion and argued that her complaint was timely because her father contacted OSHA by telephone to report TFA violations on her behalf on January 4, 2023, and spoke with OSHA representatives in February 2023. In support of her argument, Complainant submitted an affidavit from her father attesting to his contact with OSHA.

The ALJ then issued an order for additional briefing. The ALJ found any assertion from Complainant that her complaint should be counted as filed by Complainant's father on her behalf on January 4, 2023 was problematic on the basis that generally third-party standing was prohibited unless Complainant demonstrated her situation met the exception to the prohibition established by the federal courts.

Complainant submitted a brief per the ALJ's order in which she described her close relationship with her father and explained that various personal obstacles kept her from being able to file the TFA complaint herself in January 2023. Respondent submitted a brief arguing Complainant's brief failed to show her situation met the exception to the general prohibition against third-party standing.

The ALJ granted Respondent's motion for summary decision and found that Complainant had failed to demonstrate that the exception to the prohibition against third-party standing was met. The ALJ concluded that as a matter of law that Complainant's father's telephonic filing of Complainant's TFA complaint on January 4, 2023 could not be counted as the date of the complaint's filing.

The ALJ found that as Complainant's March 2, 2023 online-filed complaint exceeded the deadline to file Complainant's TFA complaint, the complaint was untimely in relation to her retaliatory termination claim and several adverse actions underlying her hostile work environment claim. The ALJ then concluded that any adverse actions underlying her hostile work environment claim which may have been timely were not actionable because they were natural consequences of Respondent's decision to terminate her employment. The ALJ then dismissed the complaint. 

LEGAL ERROR IN APPLYING THIRD-PARTY STANDING DOCTRINE

Complainant filed a petition for review appealing the ALJ's summary decision. Among her other arguments, Complainant argued that the ALJ erred in failing to apply an implementing regulation of the TFA, 29 C.F.R. § 1989.103(a), which allows any person to file a TFA complaint on another person's behalf.

In conducting de novo review of the ALJ's summary decision, the ARB agreed with Complainant in this respect. The ARB found that the ALJ incorrectly relied upon certain federal cases cited in her summary decision to find Complainant's father could not file Complainant's complaint for her. The ARB concluded that those cases involved third parties attempting to pursue causes of action asserting the rights and interests of others throughout suit in federal courts. The ARB found that in contrast, Complainant alleged her father initiated her TFA claim with OSHA, but had not sought to supplant Complainant as the party.

The ARB also concluded that the ALJ's determination was contrary to the TFA. The TFA provides that the filing of a TFA complaint is governed by rules and procedures set out in 49 U.S.C § 42121(b), which states that "[a] person who believes that he or she has been discharged or otherwise discriminated against by any person . . . may . . . file (or have any person file on his or her behalf) a complaint with the Secretary of Labor alleging such discharge or discrimination."

Next, the ARB found that the ALJ's determination was inconsistent with the TFA's implementing regulations at 29 C.F.R. § 1989.103, which state that "[a] person who believes that they have been discharged or otherwise retaliated against by any person in violation of [the] TFA may file, or have filed by any person on their behalf, a complaint alleging such retaliation" and that "[n]o particular form of complaint is required. A complaint may be filed orally or in writing. Oral complaints will be reduced to writing by OSHA."  The implementing regulations also provide that "[t]he date of the . . . telephone call . . . will be considered the date of filing."

The ARB concluded that therefore Complainant's TFA complaint need not have been in any particular form and the complaint could have been filed for Complainant by her father via telephone on her behalf. The ARB determined that for these reasons the ALJ erred in failing to apply 49 U.S.C § 42121(b) and 29 C.F.R. § 1989.103, and in summarily determining the Complainant's retaliatory termination and several hostile work environment claims were untimely for lack of third-party standing.

GENUINE ISSUE OF MATERIAL FACT AS TO TIMING OF FILING OF COMPLAINT

The ARB determined that the affidavit from Complainant's father attesting to his January 4, 2023 phone call to OSHA created a genuine issue of material fact as to the date of the complaint's filing. The ARB noted Respondent's argument that there was no proof beyond Complainant's father's affidavit that the complaint had been timely filed with OSHA. The ARB noted that an affidavit submitted by a non-moving party, based on the personal knowledge of the affiant, and with facts admissible into evidence was sufficient to overcome a motion for summary decision even when generated for the purposes of the opposing a motion for summary decision.

The ARB found that as Respondent failed to meet its burden to identify evidence negating the contents of Complainant's father's affidavit, it failed to show the absence of a genuine dispute regarding the timing of the filing of the complaint.

The ARB noted that even assuming Complainant received notice of her termination on the earliest date alleged by Respondent (July 8, 2022), a TFA complaint filed on January 4, 2023 would have fallen within the 180-day filing deadline. The ARB concluded that thus an ALJ could determine that the TFA complaint was filed timely on January 4, 2023.

The ARB found that Complainant had waived appeal of the ALJ's determination that a portion of the adverse actions underlying her hostile work environment claim were not actionable because she had not specifically challenged that determination.

The ARB therefore reversed the ALJ's determination that Complainant's retaliatory termination claim and several adverse actions forming her hostile work environment claim were untimely.  The ARB remanded the matter for further proceedings consistent with its opinion.

Boyd v. City of Chelsea, ARB No. 2024-0029, ALJ No. 2023-ACA-00001 (ARB Feb. 27, 2026) (Decision and Order)

SUMMARY DECISION; NO GENUINE ISSUE OF MATERIAL FACT; PROTECTED ACTIVITY

In Boyd v. City of Chelsea, ARB No. 2024-0029, ALJ No. 2023-ACA-00001 (ARB Feb. 27, 2026), the ARB affirmed the ALJ's Ruling on Respondent's Motion for Summary Decision (Ruling Granting Summary Decision).

The City of Chelsea Fire & Rescue (CFR) employed Complainant from June 30, 2009, to August 3, 2021. While working for CFR, Complainant also worked for Homewood Fire Department (HFD). HFD was Complainant's primary employer until HFD terminated his employment. Prior to his termination from HFD, Complainant received health insurance through HFD.

In October 2020, Complainant approached CFR's Fire Chief about obtaining full-time employment with CFR. The Fire Chief advised Complainant that there were no full-time positions available at his rank, Fire Captain. Complainant made no mention of health insurance during these discussions. Although Complainant inquired about obtaining a full-time position with CFR, he accepted thirty hours per week, which qualified him for health insurance through the City. However, Complainant believed only "full-time" employees were eligible for health insurance.  

In April of 2021, the Alabama Local Government Health Insurance Board (LGHIB) performed an audit and inquired whether certain City employees had coverage through a different entity. To comply with the audit, the City Clerk reviewed employee files to determine if the City had either offered insurance to qualified employees or possessed a declination form for those employees. Complainant was identified on a list of employees for whom the City required a declination form.

On April 20, 2021, the City sent an email to certain employees, including Complainant, requesting that they provide proof of health insurance coverage and sign a declination form. The email also stated that employees could sign up for insurance with the City as they were eligible based on the hours worked. Following this email, Complainant met with the City Clerk on April 27 to inquire into, and obtain information regarding, the City's health insurance. During this meeting, Complainant indicated to the Clerk that he wanted to apply for insurance coverage. The Clerk told him that in order to obtain health insurance coverage he needed to both complete a declination form and complete an application for insurance. Complainant signed a declination form and completed an application for health insurance coverage.

On May 26, 2021, the Fire Chief recommended terminating Complainant's employment because he believed that Complainant made false statements, engaged in conduct unbecoming of an employee in the public service, and/or engaged in immoral conduct in violation of the Chelsea Fire & Rescue Standard Operating Procedures and the Policies and Procedures Employee Handbook.

A Personnel Board hearing was held before the City Mayor to discuss Complainant's recommended termination. On June 21, 2021, the Mayor terminated Complainant's employment with CFR. Complainant appealed the termination decision, and a Personnel Board heard Complainant's appeal. On July 16, 2021, the Personnel Board reversed the termination decision but determined that Complainant's behavior warranted some form of disciplinary action and left the specific actions up to the Fire Chief. Thus, the Fire Chief issued a letter reinstating Complainant's employment and imposing disciplinary action.

On August 2, 2021, the City again terminated Complainant's employment. On August 3, 2021, Complainant filed an OSHA complaint against the City. On July 19, 2022, OSHA issued Secretary's Findings and dismissed the complaint. On August 15, 2022, Complainant filed objections to the Secretary's Findings and requested a hearing before the OALJ.

On December 27, 2022, the ALJ issued a Notice of Case Assignment and Filing Deadlines, which directed Complainant to complete and file a chart of alleged protected activities and alleged adverse actions (Complainant's Chart). Therein, Complainant, through counsel, listed allegations of protected activity and adverse action taken against him. Respondent subsequently filed its own chart indicating whether it agreed that the activity occurred, whether it had knowledge of the activity, and whether it agreed that the alleged adverse action occurred (Respondent's Chart).  

On July 7, 2023, Respondent filed a Motion for Summary Decision. Complainant did not file a response to Respondent's Motion. On August 3, 2023, the ALJ issued a Show Cause Order directing Complainant to establish good cause for why Respondent's Motion should not be granted in light of the lack of a response by Complainant. On August 17, 2023, Complainant, through counsel, submitted a Response in Opposition to Motion for Summary Decision, but it did not address the ALJ's Show Cause Order or explain why he failed to file a timely response.

On February 27, 2024, the ALJ issued a Ruling Granting Summary Decision. Complainant timely filed a Petition for Review with the ARB.

NEW INFORMATION AND EVIDENCE ON APPEAL; THE ARB DOES NOT GENERALLY CONSIDER ARGUMENTS RAISED FOR THE FIRST TIME ON APPEAL, NOR EVIDENCE SUBMITTED FOR THE FIRST TIME ON APPEAL; PARTIES ARE RESPONSIBLE FOR THE ACTS AND OMISSIONS OF THEIR FREELY CHOSEN REPRESENTATIVES

Complainant was represented by counsel before the OALJ, but was self-represented before the ARB. Before the ARB, Complainant filed a timely Petition for Review and Opening Brief and Submission of Evidence. Within these filings, Complainant presented a revised timeline of events, proposed corrections to the ALJ's statement of facts, evidence not part of the record below, and arguments concerning a newly asserted claim of protected activity. In response, the City argued that the newly filed evidence and arguments presented should not be considered and stricken from the record. The ARB agreed with the City.

After reviewing Complainant's filings, the ARB found that they raised a protected activity claim for the first time on appeal and relied on evidence not previously part of the record before the ALJ. Thus, the ARB cited to the standard it uses when determining whether to consider new evidence—specifically, "[n]o additional evidence may be admitted unless the offering party shows that new and material evidence has become available that could not have been discovered with reasonable diligence before the record closed." The ARB advised that under this standard, the moving party must show: "(1) the evidence was discovered after [the record closed]; (2) due diligence was exercised to discover the evidence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence is such that a new trial would probably produce a different result."

The ARB determined Complainant did not address these factors and held that the evidence could have been discovered with reasonable diligence and was readily available prior to the closing of the record. Additionally, the ARB disregarded Complainant's new protected activity claim.

Moreover, the ARB noted that while Complainant may not be personally responsible for missed deadlines or other mistakes by his attorney during the proceedings below, admitting and considering new evidence or arguments on appeal was not the appropriate remedy and parties are ultimately responsible for the acts and omissions of their freely chosen representatives.

NO GENUINE ISSUE OF MATERIAL FACT; PROTECTED ACTIVITY

The ALJ concluded that Complainant failed to establish a genuine issue of material fact that Complainant engaged in protected activity. The ARB began its analysis by reiterating the summary decision standard, arguments before the ALJ, and protections under the ACA. 

On appeal, Complainant raised numerous factual and timeline concerns. Specifically, Complainant focused on two of the original fifteen alleged protected activities from Complainant's Chart—completing and signing declination forms in 2017 and in 2021. Complainant asserted, "[t]he complainant signed a declination form in 2017. Since that time, he was not offered or required to sign another declination form until April 2021. In 2017, those CFR employees who had not signed the form were aggressively instructed to sign or were threatened to be removed from the fire service work schedule[.]"Additionally, while Complainant set forth his chart of protected activities, he offered no additional argument regarding it or explanation as to how the ALJ erred in his protected activity analysis or conclusion.

Thus, the ARB concluded that Complainant's allegation was nothing more than an assertion that he engaged in ACA protected activity. The ARB noted that these assertions, without citation to evidence or identification of conduct falling within the statutory or regulatory definitions under the ACA, were insufficient to undermine the ALJ's protected activity analysis or establish a genuine issue of material fact. Accordingly, the ARB affirmed the ALJ's Ruling Granting Summary Decision.

Eisenberg v. United Airlines, Inc., ARB No. 2025-0090, ALJ No. 2025-AIR-00014 (ARB Feb. 10, 2026) (Order of Dismissal)

DISMISSAL; COMPLAINANT FAILED TO FILE A TIMELY OPENING BRIEF AND RESPONSE TO ORDER TO SHOW CAUSE

In Eisenberg v. United Airlines, Inc., ARB No. 2025-0090, ALJ No. 2025-AIR-00014 (ARB Feb. 10, 2026), the ARB dismissed Complainant's appeal after Complainant failed to respond to an ARB order to respond and to file an Opening Brief. The ARB has the authority to issue sanctions, including dismissal, for a party's failure to comply with the ARB's orders and briefing requirements and has the inherent power to dismiss a case for failure to prosecute in an effort to control its docket and to promote the efficient disposition of its cases. The ARB noted its authority to dismiss an appeal for failure to comply with ARB orders is well established and critical for the ARB to fulfill its obligations on behalf of the Secretary of Labor. Complainant did not respond or file an opening brief in response to the ARB's order. Accordingly, the ARB dismissed the appeal.

Marks v. Conopco, Inc., ARB No. 2025-0084, ALJ No. 2025-TAX-00017 (ARB Feb. 27, 2026) (Second Order Denying Reconsideration)

RECONSIDERATION; UNTIMELY MOTION FOR RECONSIDERATION; COMPLAINANT DID NOT MEET STANDARD FOR RECONSIDERATION

In Marks v. Conopco, Inc., ARB No. 2025-0084, ALJ No. 2025-TAX-00017 (ARB Feb. 27, 2026), the ARB rejected Complainant's second request for reconsideration of the ARB's earlier decision dismissing Complainant's interlocutory appeal.

Complainant filed an interlocutory appeal with the ARB requesting the ARB review an ALJ's order declining to recuse herself from the proceedings. The ARB issued an Order to Show Cause directing Complainant to file a brief explaining why the ARB should entertain Complainant's interlocutory appeal. Complainant requested more time to respond to the Order to Show Cause, which the ARB granted. Even so, Complainant did not respond to the Order to Show Cause by the extended deadline, prompting the ARB to issue a decision on November 20, 2025, denying Complainant's interlocutory appeal for two independent reasons: (1) Complainant failed to comply with the ARB's Order to Show Cause, and (2) Complainant's interlocutory appeal did not satisfy the collateral order test.

After the ARB issued its decision, Complainant responded that he had not received the ARB's Order to Show Cause because his email inbox was full. The ARB construed his response as a request for reconsideration, which the ARB denied on December 16, 2025. The ARB emphasized that, even if Complainant had not disregarded the Order to Show Cause, the ARB still would have dismissed his appeal because it did not satisfy the collateral order test. The ARB also rejected Complainant's claim that he had not received the Order to Show Cause. In fact, Complainant responded to the ARB's email sending him a copy of the Order to Show Cause. Thus, it was clear he had received the Order to Show Cause and simply did not respond to it, even after requesting and receiving additional time.

Complainant sent the ARB a "Petition to Vacate" on February 4, 2026, which the ARB interpreted as a second request for reconsideration. The ARB denied Complainant's second request for reconsideration in an order issued February 27, 2026.

RECONSIDERATION; COMPLAINANT'S REQUEST FOR RECONSIDERATION WAS UNTIMELY

The ARB denied Complainant's request for reconsideration because it was untimely. The ARB observed that it typically will only entertain a motion for reconsideration if it is filed within a "short period" after the initial decision. Complainant's request for reconsideration was filed 76 days after the initial decision and 50 days after the first order denying reconsideration. Thus, it was not filed within a short period of time.

RECONSIDERATION; COMPLAINANT DID NOT MEET STANDARD FOR RECONSIDERATION

The ARB stated that it generally will only reconsider its decision if the movant demonstrates: (i) material differences in fact or law from those presented to the ARB of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the ARB's decision, (iii) a change in the law after the ARB's decision, or (iv) failure to consider material facts presented to the ARB before its decision.

Complainant presented four arguments, none of which met this standard. First, Complainant argued he did not receive "actual notice" of the ARB's orders, stating that his email inbox was full and that the physical mailings "were returned as unclaimed." Complainant's claimed lack of notice or receipt of the ARB's orders was not new—he argued the same in his first motion for reconsideration. Furthermore, his arguments were without merit. Complainant controlled his email inbox and did not allege or show that he was unaware that his inbox was full, that he did not have options to remedy the situation, that he took any reasonable and timely steps to remedy the situation, or that he took any steps to alert the ARB to the purported problem so that alternative service or notice could have been provided. His conduct was particularly problematic given that Complainant elected to communicate with the ARB almost exclusively via email. Additionally, the record showed that Complaint received (and directly responded to) at least five of the six emails the ARB sent him. Complainant's assertion regarding the physical mailings was also meritless. In addition to emailing copies of all its orders in this case, the ARB also sent all its orders to Complainant via certified mail at the address Complainant included in his filings with the ARB. Complainant did not accept any of them and they were all returned to the ARB. The ARB stated that Complainant may not willfully or negligently refuse to accept the ARB's correspondence, then feign ignorance of or seek relief from the contents of the correspondence now.

Second, Complainant argued that he "was experiencing ongoing serious medical conditions that severely limited his ability to respond to legal deadlines." Again, the ARB squarely addressed this argument in its first Order Denying Reconsideration. Furthermore, the ARB observed that Complainant never clearly identified or described his health conditions or how they inhibited his ability to respond in this appeal, that Complainant was able to repeatedly email the ARB, file the Petition to Vacate, and initiate a federal action despite the medical conditions, and that Complainant failed to request any additional extensions based on the purported medical conditions.

Next, Complainant argued that the ARB failed to afford him the leniency he was due as a pro se litigant. To the contrary, the ARB granted Complainant's one and only request for an extension, waited twice the amount of time Complainant requested before dismissing the appeal, clearly laid out procedural rules and expectations in the Order to Show Cause, accepted email filings despite previously informing Complainant that it would not do so, and considered the underlying basis for Complainant's appeal despite his failure to respond.

Finally, Complainant alleged that Respondent's counsel somehow interfered with his ability to retain counsel. The ARB stated that alleged interference with counsel had nothing to do with ALJ recusal, which was the only issue on appeal to the ARB.

In addition to the foregoing, the ARB emphasized again that, even setting aside Complainant's failure to respond to the Order to Show Cause, dismissal was still proper because ALJ recusal issues are not appropriate for immediate interlocutory review.

Robles v. Mr. Bults, Inc., ARB No. 2025-0058, ALJ Nos. 2025-STA-00050, -00051, -00052 (ARB Feb. 20, 2026) (Decision and Order)

TIMELINESS; EQUITABLE TOLLING; CONTINUING VIOLATIONS DOCTRINE

In Robles v. Mr. Bults, Inc., ARB No. 2025-0058, ALJ Nos. 2025-STA-00050, -00051, -00052 (ARB Feb. 20, 2026), the ARB affirmed the ALJ's order dismissing Complainant's complaints as untimely.

On October 9, 2023, Mr. Bults, Inc. terminated Complainant's employment. On January 18, 2025, Complainant filed a complaint with OSHA, alleging that Respondents Teamsters 731 and Mr. Bults, Inc. retaliated against him in violation of the STAA. On January 21, 2025, Complainant filed another complaint with OSHA alleging the same against Waste Management. OSHA dismissed the complaints.

Complainant appealed to the Office of Administrative Law Judges. Teamsters 731 filed a motion to dismiss the complaint as untimely. On May 7, 2025, the ALJ dismissed the complaint as untimely. Complainant filed a petition for review before the ARB, contending that equitable tolling principles and the continuing violations doctrine applied.

Summary decision is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to decision as a matter of law." Employees alleging employer retaliation in violation of STAA must file their complaints with OSHA within 180 days of the alleged retaliatory act. The statute of limitations begins to run on the date an employee receives "final, definitive, and unequivocal notice" of an adverse employment decision. The claim accrues on "[t]he date that an employer communicates a decision to implement such a decision, rather than the date the consequences of the decision are felt." The ARB may modify a filing deadline under equitable tolling or equitable estoppel principles.

The ARB found that Complainant's complaints were untimely. Mr. Bults, Inc. terminated Complainant's employment on October 9, 2023. Applying the 180-day period for filing, Complainant was required to file a complaint with OSHA no later than April 7, 2024. Complainant did not file his complaints until January 18, 2025, and January 21, 2025. No party disputed these facts.

EQUITABLE TOLLING; COMPLAINANT DID NOT ESTABLISH GROUNDS FOR EQUITABLE TOLLING

The ARB determined that Complainant did not establish that equitable tolling applied. A complainant's inability to meet a deadline may be equitably tolled due to "plaintiff's excusable ignorance of the employer's discriminatory act." The ARB has recognized several principal situations in which the limitations period may be tolled, including: (1) when the movant has raised the precise statutory claim in issue but has done so in the wrong forum; (2) when the movant has in some extraordinary way been prevented from filing; and (3) when the movant has some excusable ignorance of the respondent's discriminatory act.

Complainant contended that Respondents had a systemic pattern of obstructing investigations. However, the ARB agreed with the ALJ that Complainant's accusations were meritless and did not establish that equitable tolling applied.

CONTINUING VIOLATIONS DOCTRINE; COMPLAINANT DID NOT ESTABLISH GROUNDS FOR APPLICATION OF CONTINUING VIOLATIONS DOCTRINE

The ARB also determined that Complainant did not establish that the continuing violations doctrine applied. The continuing violations doctrine may allow an employee who ordinarily would be unable to recover damages for discrete acts of discrimination falling outside the limitations period to avoid that bar if those acts are shown to be part of a pattern of discrimination anchored by acts that occurred within the limitations period.

Complainant contended that continuing violations were demonstrated by unpaid wages for training purposes, Respondents withholding evidence, Respondents' alleged use of fraudulent documents in Complainant's unemployment case, Respondents' interference with his complaints, and Respondent Teamsters 731's denial of his grievance and arbitration rights

The ARB determined that the alleged adverse actions were discrete acts, lacked merit, and were unsubstantiated. The ARB concluded that Complainant did not demonstrate a pattern of discrimination that was anchored by an act that occurred within the limitations period.