Administrative Review Board Decisions

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

Robles v. Mr. Bults, Inc., ARB No. 2025-0058, ALJ Nos. 2025-STA-00050, -00051, -00052 (ARB Mar. 5, 2026) (Order Denying Reconsideration)

RECONSIDERATION; ARB WILL NOT RECONSIDER SAME ARGUMENTS MADE IN ORIGINAL APPEAL

In Robles v. Mr. Bults, Inc., ARB No. 2025-0058, ALJ Nos. 2025-STA-00050, -00051, -00052 (ARB Mar. 5, 2026) the ARB denied Complainant's request for reconsideration of the ARB's February 20, 2026 Decision and Order affirming the ALJ's dismissal of Complainant's complaints as untimely.

The ARB will reconsider a decision only under limited circumstances. In considering whether to reconsider a decision, the ARB considers whether the movant has demonstrated: (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.

The ARB determined that Complainant's motion did not fall within any of the limited circumstances warranting reconsideration. Complainant argued that the ARB failed to consider material facts that were known to the ARB prior to making its decision. However, Complainant simply repeated arguments he raised in his original appeal to the ARB that the ARB considered and rejected. Thus, the ARB declined to address them again on reconsideration.

Complainant also argued that Respondents mislead him into delaying to file his complaints by allegedly withholding records and Teamsters 731 misrepresenting his rights. The ARB was not persuaded by Complainant's arguments. Complainant had not demonstrated how Respondents' alleged withholding of documents lulled him into not filing a timely complaint. The ARB also determined that, even if Complainant had believed Teamsters 731 was going to represent his grievance in arbitration, the complaint would still be untimely. Thus, the ARB denied Complainant's motion for reconsideration.

Arias v. NICE Actimize, LTD., ARB No. 2025-0060, ALJ No. 2024-SOX-00032 (ARB Mar. 23, 2026) (Decision and Order)

SUMMARY DECISION; NO GENUINE ISSUE OF MATERIAL FACT; TIMELINESS; EQUITABLE TOLLING

In Arias v. NICE Actimize, LTD., ARB No. 2025-0060, ALJ No. 2024-SOX-00032 (ARB Mar. 23, 2026), the ARB affirmed the ALJ's Decision and Order Granting Respondent's Motion for Summary Judgment (Order Granting Summary Judgment).

Complainant is a Bolivian citizen and resides in Bolivia. Complainant is employed by InContact Boliva, a company that provides commercial services to Respondent. Between March 2022 and March 2023, Complainant raised several concerns to supervisors and management about "irregular sales practices, product capabilities, misrepresentations, and compliance issues."

In March 2023, Respondent placed Complainant on a Performance Improvement Plan (PIP). Then, in April 2023, Respondent terminated Complainant's employment. Following his employment termination, Complainant pursued a claim against InContact Bolivia before foreign tribunals. On October 6, 2023, a Bolivian court issued a reinstatement order.

On March 14, 2024, approximately eleven months after his termination, Complainant filed an OSHA complaint against Respondent alleging that "he received a negative performance evaluation and was terminated during April 2023." On April 4, 2024, OSHA issued Secretary's Findings and dismissed the complaint as untimely. Complainant filed objections to the Secretary's Findings and requested a hearing before the OALJ.

Before the OALJ, Respondent filed a Motion for Summary Judgment arguing, among other things, that Complainant's OSHA complaint was untimely filed. On April 30, 2025, the ALJ granted Respondent's Motion for Summary Judgment. On May 14, 2025, Complainant timely filed a Petition for Review with the ARB.

The ARB accepted the appeal and issued a Briefing Order. Before the ARB, the parties filed several submissions, including: (1) Complainant's Motion for Leave to Submit New Evidence; (2) Complainant's Opening Brief of Complainant Luis H. Arias; (3) Respondent's Opposition to Complainant's Motion for Leave to Submit New Evidence; (4) Respondent's Brief in Response to Complainant's Opening Brief; and (5) Complainant's Reply Brief to Respondent's Response Brief. The ARB issued an Order (August 14, 2025 Order) directing additional briefing from the parties. In response, Complainant filed Complainant's Brief Pursuant to August 14, 2025 Order, and Respondent filed Respondent's Response to Complainant's Brief in Response to August 14, 2025, Order.

NEW EVIDENCE ON APPEAL; THE ARB DOES NOT GENERALLY CONSIDER EVIDENCE SUBMITTED FOR THE FIRST TIME ON APPEAL

Complainant filed a Motion for Leave to Submit New Evidence requesting that the ARB reopen the record to accept new evidence not submitted to the ALJ below. Specifically, Complainant identified three exhibits that he sought to introduce on appeal: (1) Exhibit ARB-2, "April 2023 Termination Memo;" (2) Exhibit ARB-3, "June 2023 Simulated Reinstatement Memo;" and (3) Exhibit ARB-4, "June 2023 Second Termination Memo. Respondent opposed Complainant's motion.

On August 14, 2025, the ARB issued an Order acknowledging the motion, advising the parties that it does not generally receive or consider evidence submitted for the first time on appeal, setting forth the applicable standard of review, and directing the parties to submit briefing on this issue. The parties timely filed additional briefing on this issue.

The ARB agreed with Respondent. In support, the ARB advised that it does not generally consider evidence submitted for the first time on appeal and relies on the standard contained in the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (OALJ's Rules of Practice and Procedure), which provides that "[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." 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 considered these three exhibits as new evidence on appeal as they were not referenced in Complainant's filings in opposition to Respondent's motion or considered by the ALJ. Additionally, Complainant failed to demonstrate that the new evidence meets the four factors identified above. The ARB determined that these exhibits could have been discovered with reasonable diligence and were readily available prior to the closing of the record below as all three exhibits were in Complainant's possession as of June 9, 2023, well before the start of the OALJ proceedings. Complainant even stated that he strategically chose to "preserve[] them for hearing."

Moreover, the ARB acknowledged that even if it were to accept and consider this evidence, these exhibits would not produce a different result on the issue of timeliness. The three exhibits memorialize alleged adverse actions taken against Complainant outside of the 180-day statutory filing period, making his OSHA complaint still untimely. Alternatively, if the exhibits were introduced and considered for demonstrating a retaliatory pattern, Complainant did not explain how this newly alleged retaliation prevented him from timely filing his OSHA complaint as he still had approximately four months to file the complaint. 

Accordingly, the ARB disregarded the new evidence presented on appeal.

A SOX COMPLAINT MUST BE FILED WITHIN 180 DAYS OF AVIOLATION; THE ARB DOES NOT GENERALLY CONSIDER ARGUMENTS RAISED FOR THE FIRST TIME ON APPEAL; A FOREIGN TRIBUNAL'S REINSTATEMENT ORDER IS NOT AN ADVERSE ACTION; COMPLAINANT DID NOT PROVIDE RESPONDENT ADEQUATE NOTICE OF POST-REINSTATEMENT HARASSMENT ALLEGATIONS

The ALJ concluded that Complainant failed to establish a genuine issue of material fact that Complainant timely filed his OSHA complaint. The ARB began its analysis by reiterating the summary decision standard, arguments before the ALJ, and SOX's 180-day statute of limitations. 

On appeal, Complainant argued that the ALJ erred in limiting his review to the March 2023 PIP and April 2023 termination by disregarding adverse actions and retaliation that occurred thereafter. Specifically, Complainant contended that the ALJ should have recognized "for the purposes of timeliness and equitable tolling, that the appropriate cutoff should be October 6, 2023, the date of the final Bolivian court reinstatement order, which represents the last adverse action directly tied to the original retaliation claim[,]" and that the ALJ misapplied DOL precedent in his analysis. The ARB disagreed.

First, the ARB reviewed Complainant's filings and found that they raised a new adverse action claim for the first time on appeal. Before the ALJ, Complainant's sole argument pertaining to the reinstatement order was that "[it] constitutes new evidence confirming wrongful termination and retaliation[,]" which supports equitable tolling under these circumstances. On appeal, Complainant attempted to repackage this tolling argument into a new adverse action claim by contending that Respondent's alleged non-compliance with the reinstatement order should be treated as its own adverse action such that his claim should be considered timely. The ARB declined to consider this argument as it was raised for the first time on appeal.

Second, the ARB held that a reinstatement order did not constitute an adverse action. Under SOX, an adverse action must be taken by a covered employer, "or any officer, employee, contractor, subcontractor, or agent of such company or nationally recognized statistical rating organization." The ARB noted that a foreign tribunal does not fall within this definition or otherwise qualify as a covered entity under the Act. Additionally, the ARB held that the reinstatement order itself was not an "adverse action." The ARB stated that an adverse action is "simply something unfavorable to an employee, not necessarily unfair, retaliatory or illegal. [It] is more than trivial when it is materially adverse as to dissuad[e] a reasonable worker from protected activity." Ultimately, the ARB determined that reinstatement order was a remedial measure issued by a foreign tribunal in response to a separate legal proceeding; it was not an unfavorable action taken by Respondent.

Third, the ARB found that the ALJ did not misinterpret DOL precedent. The ARB acknowledged Complainant's attempts to distinguish the late introduction of unrelated claims in Kingoff and Sasse from the present case. However, upon review of the record, the ARB noted that Complainant first introduced these new allegations only after Respondent moved for summary judgment. Prior to that filing and during the discovery process, Complainant admitted that all alleged retaliatory actions occurred during or before April 2023. At no point during the OALJ proceedings did Complainant move to amend his OSHA complaint to provide Respondent with adequate notice of additional alleged adverse actions arising after his reinstatement or that a new claim for relief was being raised.

Moreover, the ARB agreed with the ALJ that the nature of these allegations arose wholly apart from, and constituted materially different SOX violations than those set forth in the OSHA complaint. Accordingly, the ARB concluded that the limitations period began when Complainant was placed on the PIP in March 2023 and was subsequently terminated in April 2023, rendering his OSHA complaint untimely.

COMPLAINANT'S OTHER ARGUMENTS DO NOT JUSTIFY EQUITABLE TOLLING; A DECISION TO PURSUE CLAIMS IN A FOREIGN TRIBUNAL IS NOT AN EXTRAORDINARY CIRCUMSTANCE OUTSIDE OF COMPLAINANT'S CONTROL

Before the ALJ, Complainant argued that his OSHA complaint was timely under equitable tolling principles because: (1) the statute of limitations issue was resolved because the OALJ's issuance of a Notice of Docketing and Notice of Hearing indicated that the claim was timely; (2) new evidence warranted tolling because the reinstatement order confirms wrongful termination and retaliation; (3) employer misconduct warranted equitable tolling because Respondent opposed discovery and limited Complainant's access to evidence stored in company systems; and (4) the continuing violation doctrine applies because Complainant has faced continuous retaliation since his reinstatement in September 2024. The ALJ considered and rejected Complainant's equitable tolling arguments.

The ARB agreed and began its analysis by highlighting equitable modification principles—summarizing equitable tolling and equitable estoppel. Specifically, the ARB identified three classes of situations in which a moving party may be entitled to equitable tolling, including (1) the party has raised the precise statutory claim in issue but has done so in the wrong forum; (2) the party has in some extraordinary way been prevented from filing; and (3) the party has some excusable ignorance of the respondent's discriminatory act. The ARB also noted that the party requesting tolling bears the burden of establishing circumstances that justify modifying the appeal deadline.

On appeal, Complainant maintained that tolling was warranted due to: (1) proven employer misconduct; (2) an objective fear of retaliation; (3) efforts to prevent escalation and to resolve the matter within the Bolivian legal system; and (4) continued retaliation and harassment following reinstatement.

The ARB disagreed holding that Complainant had not met his burden of establishing circumstances that justify modifying the appeal deadline. The ARB found Complainant's arguments unpersuasive because the alleged misconduct and harassment did not prevent Complainant from pursuing his legal action in Bolivia or occurred after the complaint filing deadline. Rather, it appeared that Complainant mistakenly relied on his strategic decision to pursue his employment claim through the Bolivian legal system rather than through DOL. The ARB noted that this strategic decision was not an extraordinary circumstance outside of Complainant's control that prevented a timely filing. Accordingly, the ARB affirmed the ALJ's conclusion that Complainant's arguments were insufficient to warrant the application of equitable tolling.

DeTie v. TransWood, Inc., ARB No. 2024-0041, ALJ No. 2022-STA-00038 (ARB Mar. 25, 2026) (Decision and Order)

In DeTie v. TransWood, Inc., ARB No. 2024-0041, ALJ No. 2022-STA-00038 (ARB Mar. 25, 2026), the ARB affirmed the ALJ's Decision and Order Denying Whistleblower Complaint under the STAA. The ARB agreed with the ALJ that Complainant engaged in protected activity when he raised safety concerns about overweight loads to a supervisor earlier in April 2021. However, it upheld the ALJ's finding that Complainant did not engage in a protected refusal to operate a commercial vehicle on April 24, 2021. The ARB concluded that the record did not show that Complainant left work because he reasonably believed driving would violate a federal safety regulation: he did not contact dispatch before leaving as drivers were trained to do, his contemporaneous texts emphasized pay issues and uncertainty about the load, and he could have loaded to a legally permissible amount under company policy.

The ARB corrected one legal point, clarifying that an employee need not "seek correction" for refusals based on anticipated regulatory violations under 49 U.S.C. § 31105(a)(1)(B)(i)—that requirement applies only to refusals based on a reasonable apprehension of serious injury under § 31105(a)(1)(B)(ii). Nonetheless, the ARB explained that some communication of a refusal is necessary for protection. Even assuming Complainant's after-the-fact text to a supervisor met that communication requirement, he still failed to prove he reasonably believed operating the vehicle would have violated a safety rule.

The ARB affirmed the ALJ's finding that Complainant failed to show his protected complaints contributed to his termination because substantial evidence supported that Respondent fired Complainant for abandoning his job without notifying dispatch and for repeated attendance problems, not for raising safety concerns. The ARB also affirmed the ALJ's alternative holding that, even if causation had been shown, the employer proved by clear and convincing evidence it would have taken the same action due to job abandonment and chronic attendance issues. Accordingly, the ARB affirmed the denial of the whistleblower complaint.

Domebo v. Okmulgee Ready Mix Co., ARB No. 2024-0026, ALJ No. 2023-STA-00004 (ARB Mar. 27, 2026) (Decision and Order)

CONTRIBUTING FACTOR; PROXIMATE CAUSE DOES NOT IMPOSE A HEIGHTENED BURDEN BEYOND CONTRIBUTING FACTOR STANDARD; INTERVENING EVENT MAY DIMINISH TEMPORAL PROXIMITY

In Domebo v. Okmulgee Ready Mix Co., ARB No. 2024-0026 (ARB Mar. 27, 2026), the ARB summarily affirmed the Chief ALJ's D. & O.

Respondent employed Complainant as a concrete delivery driver from approximately December 1, 2021, to July 26, 2022. On July 25, 2022, Complainant reported safety concerns to Respondent regarding an air brake defect and a blown tire, which arose during two separate job assignments involving two different trucks. During Complainant's first delivery assignment, he reported an air brake defect in Truck No. 30 to Respondent's dispatcher after the truck's air system lost all pressure, causing the emergency brakes to engage.

After restoring sufficient air pressure to release the emergency brakes and completing the concrete pour, Complainant attempted to return the truck to Respondent's terminal. On his return trip to the terminal, the truck lost all air pressure again, and Complainant reported the incident to the dispatcher. The dispatcher attempted to contact Complainant via radio, telephone call, and text message, but Complainant did not answer or respond. Complainant eventually restored sufficient air pressure and drove the truck back to the terminal.

After Complainant returned to the terminal, he had an exchange with Respondent's plant manager regarding the truck's condition and his concerns about driving similarly maintained vehicles. Following this exchange, Complainant took about a thirty-to-forty-minute break and did not wash out the truck. Generally, drivers are responsible for cleaning out leftover concrete by washing the inside of the drum with water if it was not washed out at the jobsite to prevent damage to the truck. Later that afternoon, Complainant was assigned to a second delivery in a different truck, Truck No. 52.

While traveling to the second jobsite, Complainant experienced a tire blowout. Complainant reported the blown tire to the dispatcher, continued driving to the jobsite, and requested for the tire to be replaced once he arrived at the jobsite. The plant manager met Complainant at the jobsite, brought a new hose and spray nozzle for the truck because the existing hose was damaged from the tire, and stated that he did not want to pay for a service call to have the tire replaced at the jobsite. Complainant advised that he felt unsafe driving the truck back to the terminal, but ultimately, drove the truck back to the terminal.

Upon returning from the second jobsite, Complainant did not complete his required end-of-day duties. Specifically, Complainant failed to wash out the concrete truck, install the replacement hose and nozzle, return his delivery ticket to the dispatcher, park the truck in its designated location, or notify supervisory personnel prior to leaving the worksite. A different driver washed the truck out and brought the delivery ticket to the dispatcher.

The next day, the plant manager learned that Complainant did not complete his end-of-day duties. When Complainant reported to work around 6:00 a.m., the plant manager told Complainant that his services were no longer needed. A heated exchange then occurred between Complainant and the plant manager. Prior to these events, Complainant had no disciplinary record and had made other complaints about issues with vehicles he operated. Those issues were resolved without any disciplinary action.

On September 26, 2022, Complainant filed a complaint with OSHA alleging that Respondent violated the STAA when it terminated his employment in retaliation for complaining about driving unsafe vehicles. On April 4, 2024, OSHA issued Secretary's Findings and dismissed the complaint. Complainant filed objections to the Secretary's Findings and requested a hearing before the OALJ.

On February 9, 2024, the Chief ALJ issued the D. & O. denying the complaint. The Chief ALJ found that Complainant engaged in protected activity and that there was temporal proximity between Complainant's complaints and his employment termination, but that his protected activity did not contribute in any way to his termination. The Chief ALJ concluded that the termination "was based solely on the potential damage to equipment, lack of communication, and disruption to other employees that conducted Complainant's end of day routine."

Complainant timely filed a petition for review with the ARB. Both parties filed briefs. Complainant averred that: (1) the Chief ALJ failed to properly apply the contributing factor standard and instead relied on a "proximate cause" standard; (2) the Chief ALJ erred by finding that an intervening event diminished the temporal proximity between Complainant's protected activity and termination; (3) the Chief ALJ failed to consider and resolve strong evidence of Respondent's animus toward Complainant's protected activity; and (4) the Chief ALJ's findings are not supported by substantial evidence.

Upon consideration of the parties' briefs on appeal and review of the evidentiary record as a whole, the ARB concluded that substantial evidence supported the Chief ALJ's finding that Complainant's protected activity was not a contributing factor in his termination. The ARB determined that none of Complainant's arguments established that the Chief ALJ abused his discretion or committed reversible error in his contributing factor analysis. The ARB stated that substantial evidence supports the finding that Complainant's termination was based on the events occurring after the second job; Complainant left Respondent's terminal without notifying or communicating with supervisory personnel and without completing his end-of-day duties, which could have resulted in damage to the truck. Additionally, prior to these end-of-day events, Complainant was not disciplined for earlier safety complaints and, in fact, was assigned a second job after raising a complaint earlier that day. Accordingly, the ARB affirmed the Chief ALJ's findings.

The ARB also highlighted in footnote 43 that the Chief ALJ's reference to proximate cause was not an error because the term "proximate cause" does not impose a heightened or additional burden on a complainant beyond the statutory contributing factor standard. Rather, it "serves to distinguish legally cognizable causation from mere sequential causation, ensuring that liability is grounded in conduct that has legal significance."

Fields v. Super Ego Holdings, ARB No. 2025-0078, ALJ No. 2024-STA-00045 (ARB Mar. 11, 2026) (Decision and Order)

In Fields v. Super Ego Holdings, ARB No. 2025-0078, ALJ No. 2024-STA-00045 (ARB Mar. 11, 2026), the ARB affirmed the ALJ's Default Decision and Order against Respondent in which the ALJ ordered Respondent to reinstate Complainant to his former position and to pay Complainant backpay until the date of reinstatement.

The Chief ALJ issued a Notice of Docketing directing the parties "to make initial disclosures within 21 days of the date of this notice without awaiting a discovery request or discovery order" per 29 C.F.R. § 18.50(c)(1). The presiding ALJ then issued a Notice of Assignment, Notice to Pro Se Complainant, and Scheduling Order and informed the parties that formal discovery was to begin, their initial disclosures were past due, and that attorneys were under a "continuing duty to confer about the scheduling of depositions and to meet and confer in good faith to resolve any discovery disputes." The ALJ also ordered both parties to file status reports with a discovery plan under 20 C.F.R. § 18.50(b)(3) by a specified deadline.

As the parties had not submitted their status reports by the deadline, the ALJ's attorney advisor emailed the parties and requested that they submit their status reports and attached a courtesy copy of the ALJ's Notice of Assignment, Notice to Pro Se Complainant, and Scheduling Order. Respondent's attorney replied he had not consulted with Complainant, but that Respondent "would only be submitting dispositive motions because [Respondent] is not an employer," but a "leasing company." Respondent's attorney asserted that the matter "was already dismissed by OSHA" and requested clarification as to next steps.

The ALJ's attorney advisor explained by email that the next steps were outlined in the ALJ's scheduling order and reminded Respondent's counsel to provide Complainant with initial disclosures and to file its status report with the ALJ. The parties again did not submit their status reports and the ALJ's attorney advisor emailed the parties an inquiry as to when they planned to do so. The attorney advisor informed the parties that the ALJ "does not appreciate parties blatantly ignoring her orders" and that if the ALJ did not receive the parties' status reports, she would issue an Order to Show Cause requiring the parties to explain why sanctions were not to be imposed.

Respondent's attorney replied on that he had not been able to get in touch with Complainant and stated Respondent "would only file a motion to dismiss because [Respondent] is not the employer, [Respondent] does not have employees." The attorney advisor replied to Respondent's attorney that his obligation to file a status report remained regardless of any defenses Respondent could raise in a motion to dismiss and the lack of contact with Complainant. The parties were advised that if their status reports were not submitted by a specific date, the ALJ would issue an Order to Show Cause.

Complainant filed a status report by the date specified in the attorney advisor's email. Respondent did not file its status report. The ALJ issued an Order to Show Cause and ordered Respondent's attorney to show cause as to why sanctions were not to be imposed for failing to comply with her order to file a status report (as required by 29 C.F.R. § 18.50(b)) and for failing to provide its initial disclosures as required by 29 C.F.R. § 18.50(c). The ALJ warned that "[f]ailure to timely respond may result in a default decision and order against Respondent" per 29 C.F.R. § 18.57(b)(1).

Respondent did not respond to the ALJ's Order to Show Cause. In a Default Decision and Order, the ALJ found Respondent had failed to provide its status report pursuant to 29 C.F.R. § 18.50(b)(3) and had reason to conclude that Respondent had also failed to provide the initial disclosures to Complainant.

The ALJ noted she had warned Respondent of the possibility of a default decision and order. She then evaluated the efficacy of each of the lesser sanctions provided at 29 C.F.R. 18.57(b)(1) and explained her reasons for not imposing them as an alternative to default judgment.

The ALJ found that the attorney's replies to her attorney advisor's four emails informing the attorney of his obligation to file his status report demonstrated he knew of her orders and understood her expectations. The ALJ thus determined that Respondent had willfully disobeyed her orders and that his non-compliance could be interpreted as the result of bad faith or fault.

As a result, the ALJ entered a default decision and order against Respondent. She adopted allegations in the complaint as true and correct and found that under the STAA: Respondent was a covered entity; Complainant was an employee of Respondent and had engaged in protected activity; Complainant's protected activity was a contributing factor in Respondent's decision to discharge him; Respondent had not demonstrated by clear and convincing evidence it would have discharged Complainant in the absence of his protected activity; Complainant earned $1,700 per week while employed by Respondent; and, Respondent had not proven Complainant failed to mitigate his damages.

The ALJ ordered Respondent to take "affirmative action to abate the violation," reinstate Complainant to his former position with the same pay, terms, and privileges of employment, and to pay Complainant backpay of $1,700 per week beginning the day after Complainant's termination to the present and continuing until the date of reinstatement, plus interest.

NO ABUSE OF ALJ DISCRETION IN RENDERING DEFAULT DECISION AND ORDER FOR DISCOVERY NON-COMPLIANCE

Respondent filed a Petition for Review with the ARB. The ARB reviewed the ALJ's default decision and order for an abuse of discretion and noted that case-ending sanctions such as default decisions are subject to closer scrutiny within the abuse-of-discretion framework.

Applying the factor analysis described in Keller v. Pittsburgh Baptist Church, ARB No. 2025-0008, ALJ No. 2023-TAX-00012, slip op. at 8-10 (ARB July 30, 2025), the ARB determined the ALJ did not abuse her discretion in issuing the default decision and order. Pursuant to Keller, an ALJ considers and balances the following non-exhaustive factors in determining whether to issue a case-ending sanction: (1) the culpability, willfulness, or bad faith of the non-compliant party (culpability/willfulness/bad faith); (2) whether the non-compliant party was warned their conduct or failure to comply could result in dismissal or default judgment (warning); (3) the efficacy of less drastic sanctions (lesser sanctions); (4) whether the party failed to comply with an order (non-compliance); (5) whether the non-compliant party engaged in dilatory conduct (dilatory conduct); (6) whether and to what extent there was prejudice to the opposing party (prejudice); and, (7) interference with the judicial process (judicial process).

The ARB determined the ALJ did not err in concluding that Respondent's failure to comply with her orders was the product of willfulness, bad faith, or fault. It noted that Respondent's attorney demonstrated he was aware of the ALJ's orders and that Respondent chose instead to posit it was not a covered employer under the Surface Transportation and Assistance Act (STAA) because it was a leasing company without further explanation.

The ARB found no reason to conclude that Respondent had put forward a meritorious defense as the STAA's implementing regulations (29 C.F.R. § 1978.101(i)) define an "employer" as "a person engaged in a business affecting commerce that owns or leases a commercial motor vehicle in connection with that business, or assigns an employee to operate the vehicle in commerce . . . ."

The ARB determined Respondent continued to willfully flout the ALJ's order to submit its status report. It noted Respondent completely ignored the ALJ's order to show cause even after the ALJ's attorney advisor explained that a dispute on the merits did not relieve it of the obligation to comply with the procedural requirements outlined in the ALJ's scheduling order and after the ALJ warned Respondent of the possibility of a default decision. The ARB concluded that it saw no reason to reverse the ALJ's determination Respondent's non-compliance with the ALJ's orders was willful given that Respondent's brief before the ARB provided no explanation for its non-compliance.

Next, the ARB found that ALJ thoroughly evaluated each of the lesser sanctions for discovery non-compliance at 29 C.F.R. § 18.57(b)(1)(i)-(vi) and did not err in determining a lesser sanction would be ineffective or inappropriate. The ARB concluded that the ALJ's default decision and order was supported by the Keller factors which had been met or assessed—the culpability, willfulness, or bad faith of Respondent, the clear warning it received of the potential of a default judgment, the inefficaciousness of a lesser sanction, and Respondent's failure to comply with the ALJ's orders. The ARB thus determined that the ALJ had not abused her discretion in sanctioning Respondent with default judgment for its discovery noncompliance.

MOTION TO STAY REINSTATEMENT RENDERED MOOT

The ARB noted Respondent had yet to reinstate Complainant per the ALJ's order. It then turned to Respondent's motion to stay the ALJ's reinstatement order pending the ARB's review of its appeal. The ARB noted that Respondent's argument that it could not reinstate Complainant because it did not employ him was conclusory and did not provide support for its assertions. The ARB found that even though Respondent failed to comply with the ALJ's order to reinstate Complainant, its decision (as explained above) rendered its motion to stay reinstatement moot such that it was unnecessary for the ARB to address it. 

Lattimore v. Alaska Airlines, Inc., ARB No. 2025-0089, ALJ No. 2025-AIR-00038 (ARB Mar. 9, 2026) (Decision and Order Denying Interlocutory Appeal)

ORDER OF DISMISSAL; INTERLOCUTORY APPEAL

In Lattimore v. Alaska Airlines, Inc., ARB No. 2025-0089, ALJ No. 2025-AIR-00038 (ARB Mar. 9, 2026), the ARB denied Complainant's petition for interlocutory review and remanded the case to OALJ to continue the agency proceedings.

Complainant filed a petition for interlocutory appeal with the ARB to review the Chief ALJ's Order Suspending Discovery and Prohibiting Further Filings Until Assignment of Presiding Judge (Suspension Order).

Complainant filed a complaint with OSHA on or about June 3, 2025, alleging that Respondent Alaska Airlines violated AIR21. OSHA dismissed the complaint on June 12, 2025, and Complainant requested a hearing before the Department's Office of Administrative Law Judges. The Chief ALJ issued a Notice of Docketing on July 10, 2025, which stated that the matter had been docketed but not yet assigned to a presiding ALJ and that, once assigned, the presiding ALJ would issue a Notice of Hearing and Prehearing Order.

Complainant filed seven motions before the Chief ALJ issued the Notice of Docketing on July 10, 2025, and more than twenty additional motions between then and July 22, 2025. On July 22, 2025, the Chief ALJ issued the Suspension Order. The Chief ALJ ordered that all discovery, including initial disclosures, was suspended until a presiding ALJ was appointed and issued a scheduling order. The Chief ALJ also prohibited the parties from filing any more motions until the matter was assigned to a presiding ALJ, and stayed the deadline for Respondent to file responses to Complainant's pending motions. The Chief ALJ also stated that any filings submitted between the issuance of the Suspension Order and the assignment of a presiding ALJ would not be part of the official administrative record.

Complainant filed an Interlocutory Petition for Relief with the ARB seeking review of the Chief ALJ's Suspension Order. Complainant asserted, in part, that the Suspension Order froze her filings, blocked response rights, and suspended discovery contrary to law. She contended that this created daily prejudice, obstructed the AIR21's mandate, tainted the proceedings, and that she had been denied a fair hearing. She requested default liability.

On September 10, 2025, the ARB issued an Order to Show Cause, ordering Complainant to file a brief within ten calendar days explaining why the ARB should not dismiss the petition and demonstrate why this matter satisfied all three elements of the collateral order exception identified in the order. The ARB cautioned that a failure to timely respond to the order could result in dismissal of the appeal. Complainant did not file a response.

The ARB has the inherent authority to effectively manage its docket to ensure case efficiency, and may dismiss a complaint for a complainant's failure to comply with the ARB's orders. Because Complainant failed to respond to the ARB's Order to Show Cause, the ARB dismissed Complainant's petition.

The ARB also determined that Complainant's interlocutory appeal did not satisfy the collateral order exception.

When a party seeks interlocutory review of an ALJ's non-final order, the ARB has elected to look to the interlocutory review procedures used by federal courts, including requesting the trial court certify issues involving a controlling question of law for immediate appeal in accordance with 28 U.S.C. § 1292(b). Complainant had not received ALJ certification.

If a party has failed to obtain ALJ certification, the ARB may still consider reviewing an interlocutory order that meets the "collateral order" exception. To fall within the "collateral order" exception, the order appealed must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment.

Setting aside the first two prongs, the ARB concluded that Complainant's appeal did not satisfy the third prong because all the issues raised by Complainant could be effectively reviewed on appeal from a final judgment of the ALJ. Complainant's appeal concerned a procedural ruling and order imposed to control the conduct of the proceedings below. The ARB has repeatedly declined to interfere with an ALJ's procedural orders in interlocutory appeals because they are readily subject to review on appeal from a final judgment.

Thus, the ARB denied Complainant's petition for interlocutory review and remanded the case to OALJ to continue the agency proceedings.

Prkic v. Sezzle, Inc., ARB No. 2025-0074, ALJ No. 2025-SOX-00021 (ARB Mar. 6, 2026) (Decision and Order Reversing and Remanding)

SUMMARY DECISION; TIMELINESS; EQUITABLE TOLLING; PRECISE STATUTORY CLAIM IN THE WRONG FORUM

In Prkic v. Sezzle, Inc., ARB No. 2025-0074, ALJ No. 2025-SOX-00021 (ARB Mar. 6, 2026), the ARB reversed and remanded the ALJ Order Granting Summary Decisions because the record showed Complainant met the requirements for equitable tolling by "rais[ing] the precise statutory claim in issue but . . . in the wrong forum."

On May 28, 2024, Sezzle, Inc., terminated Complainant's employment. On July 1, 2024, Complainant retained counsel. On September 23, 2024, Complainant filed a complaint in federal court, which included a SOX whistleblower retaliation claim.

A complainant alleging whistleblower retaliation in violation of SOX must file a complaint with OSHA within 180 days of the alleged violation. The 180-day deadline for Complainant to file a SOX whistleblower retaliation complaint with OSHA was November 24, 2024, and Complainant did not meet the deadline. Eventually, on February 15, 2025, Complainant filed a SOX retaliation complaint, but OSHA dismissed it as untimely on February 19, 2025. On March 3, 2025, Complainant objected and an ALJ was subsequently assigned to the case.

The ALJ granted summary decision for the Respondent and dismissed the Complainant's SOX whistleblower claim as untimely. Although the Complainant argued for equitable tolling of the 180-day filing deadline, the ALJ rejected each argument. The ALJ found that Complainant's counsel mishandling of the case, if that is what happened, was not an extraordinary circumstance. The ALJ also found that informal SEC guidance did not address SOX filing requirements and therefore could not justify tolling. Finally, the employer handbook did not misrepresent anything about SOX rights. Even accepting Complainant's allegations as true, equitable tolling did not apply.

EQUITABLE TOLLING; PRECISE STATUTORY CLAIM IN THE WRONG FORUM

Complainants alleging whistleblower retaliation in violation of SOX must file their complaints with OSHA within 180 days of the alleged violation or after the date on which the employee became aware of the alleged violation. However, the filing deadline is subject to equitable tolling in appropriate circumstances when the complainant is prevented from filing despite exercising that level of diligence which could be reasonably expected in the circumstances. The ARB has recognized several principal situations in which a moving party may be entitled to the remedy, 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.

Upon review, the ARB reversed the ALJ's Order. The record showed that, within 180 days of her termination, Complainant filed the precise statutory claim in the wrong forum by filing a federal complaint that included a SOX retaliation claim. Therefore, equitable tolling applied and the Complainant's SOX whistleblower retaliation complaint was deemed timely.

First, Complainant's federal complaint clearly met the requirements for the "precise statutory claim." The federal complaint included a detailed claim for "Retaliation in Violation of the Sarbanes Oxley Act," citing 18 U.S.C. § 1514A.

Next, Complainant met the requirements for "wrong forum." In Mehra v. West Virginia University, the ARB equitably tolled a filing deadline because the complainant filed with the DOL's Office of Inspector General (the wrong forum), instead of the DOL's WHD (the proper forum). Similarly, in this case, Complainant filed the federal complaint with the SOX claim with the United States District Court for the District of Colorado—a forum, but the wrong forum for the claim at this stage.

Finally, Complainant timely raised her SOX claim in the wrong forum. The SOX implementing regulations require filing of a retaliation complaint "[w]ithin 180 days after an alleged violation of the Act occurs or after the date on which the employee became aware of the alleged violation of the Act."  Here, on May 28, 2024, Respondent terminated Complainant's employment, and on September 23, 2024 (118 days later), Complainant filed a complaint with her SOX claim in federal court. Thus, it would have been timely.

Rupp v. West Starr Aviation, LLC, ARB No. 2025-0069, ALJ No. 2023-AIR-00017 (ARB Mar. 20, 2026) (Decision and Order Approving Settlement and Dismissing Complaint)

VOLUNTARY DISMISSAL; APPROVAL OF SETTLEMENT

In Rupp v. West Starr Aviation, LLC, ARB No. 2025-0069, ALJ No. 2023-AIR-00017 (ARB Mar. 20, 2026), the ARB approved the parties' Stipulation of Dismissal and Settlement Agreement, Release of Claims, and Projections Required by C.R.S. § 24-34-407, which included a copy of the proposed settlement.

The ARB approved the parties' settlement agreement as fair, adequate, and reasonable, and not in contravention of the public interest. The ARB noted that this determination was restricted only to the AIR21 case over which it had jurisdiction. The ARB also noted that it construed the language of the agreement's confidentiality clause as allowing Complainant to communicate with or provide information to state and federal authorities about suspected violations of law involving Respondent. Lastly, the ARB construed the parties' provision that the agreement shall be interpreted under the laws of the state of Colorado as not limiting the authority of the Secretary of Labor, the ARB, and any federal court regarding any issue arising under the AIR21.

Accordingly, the ARB approved the settlement agreement and dismissed the appeal with prejudice.

Sheffield v. Tyson Foods, Inc., ARB No. 2026-0010, ALJ No. 2026-FDA-00018 (ARB Mar. 11, 2026) (Decision and Order)

In Sheffield v. Tyson Foods, Inc., ARB No. 2026-0010, ALJ No. 2026-FDA-00018 (ARB Mar. 11, 2026), ARB determined that the ALJ correctly dismissed Complainant's complaint for lack of jurisdiction, affirmed the ALJ's dismissal order, and dismissed Complainant's appeal.

Before the ALJ, Respondent filed a motion requesting that the ALJ dismiss Complainant's complaint with prejudice after Complainant filed an original action in federal district court. Respondent argued that the FSMA claims in Complainant's federal district court complaint were the same as the FSMA claims which were to be adjudicated by the ALJ. Respondent attached a copy of the federal district court complaint to its motion. 

The ALJ granted Respondent's request for dismissal and dismissed Complainant's complaint with prejudice. The ALJ found that she no longer had jurisdiction in the matter on the basis that Complainant had removed his complaint to federal district court and that there were no remaining issues to be decided by the Office of Administrative Law Judges. Complainant objected to the dismissal. The ALJ treated Complainant's objection as a request for reconsideration and issued an order overruling Complainant's objections and denying his request for reconsideration.

FSMA KICK OUT PROVISION PROPERLY APPLIED TO DIVEST ALJ OF JURISDICTION

Complainant filed a Petition for Review with the ARB. Complainant argued that the ALJ abused her discretion in dismissing his complaint and misapplied the FSMA's "kick out" provision at 21 U.S.C. § 399d(b)(4)(A).

The ARB conducted de novo review of the ALJ's dismissal order. The ARB determined that the ALJ correctly dismissed Complainant's complaint for lack of jurisdiction. It noted that the FSMA's "kick out" or "removal" provision located at 21 U.S.C. § 399d(b)(4)(A) states that "[i]f the Secretary [of Labor] has not issued a final decision within 210 days after the filing of the complaint . . . the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States with jurisdiction, which shall have jurisdiction over such an action . . . ."

The ARB found that as of the date of Complainant's filing of his federal district court complaint, sufficient time had elapsed to allow him to remove his FSMA claim from review by the ALJ to the district court. The ARB found that as of the date of the filing of Complainant's federal district court complaint more than 210 days had passed from the date Complainant filed his complaint with OSHA.

The ARB reviewed Complainant's federal district court complaint. It concluded the federal district court complaint asserted claims Respondent terminated Complainant's employment in retaliation for his engagement in the protected activity of reporting "FSMA compliance violations" to management which corresponded to the allegations in Complainant's complaint with OSHA. The ARB concluded that the claims described and remedies sought in Complainant's federal district court complaint (which included lost wages, back pay, lost benefits, medical expenses, and general damages for pain, suffering, and emotional distress as well as the equitable relief of reinstatement or front pay in lieu of reinstatement) fell squarely within the realm of the FSMA's employee protection provisions.

On these bases, the ARB determined that the ALJ correctly dismissed Complainant's complaint for lack of jurisdiction, affirmed the ALJ's dismissal order, and dismissed Complainant's appeal.