Administrative Review Board Decisions

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

Kossen v. Asia Pacific Airlines, ARB No. 2023-0047, ALJ No. 2023-AIR-00001 (ARB May 30, 2025) (Decision and Order)

ABUSE OF DISCRETION; CONTRIBUTING FACTOR; TEMPORAL PROXIMITY; RECUSAL; RECONSIDERATION

In Kossen v. Asia Pacific Airlines, ARB No. 2023-0047, ALJ No. 2023-AIR-00001 (ARB May 30, 2025), the ARB affirmed the ALJ's Order Granting Summary Decision and Order Denying Reconsideration.

In Kossen, Complainant filed a complaint with OSHA alleging that Respondent retaliated against him by providing inaccurate pilot record documentation to a prospective employer in June 2022. OSHA dismissed the complaint, and Complainant timely objected and requested a hearing before OALJ. OALJ docketed Complainant's appeal and the assigned ALJ issued a Notice of Hearing and Pre-Hearing Order. Shortly after being served this order, Complainant filed a Motion for Recusal. In the Motion for Recusal, Complainant argued that the ALJ showed a clear bias, acted in his own self-interest, and erred in rulings from past cases involving Complainant. The ALJ denied Complainant's Motion for Recusal. In response, Complainant filed a Motion for Reconsideration for Recusal, which the ALJ denied.

Thereafter, Respondent filed a Motion for Summary Decision (MSD) and argued that the passage of four years and four months, from the date of Complainant's protected activity to the date of the alleged adverse action, was too long to establish causation, a necessary element of Complainant's prima facie case. In response, Complainant filed several motions with the ALJ and a Petition for Interlocutory Appeal with the Chief ALJ and the ARB. However, Complainant did not file an opposition to the MSD even after receiving two extensions to respond to the MSD.

While the Petition for Interlocutory Appeal was pending before the ARB, the ALJ issued an Order Granting Summary Decision. In the Order Granting Summary Decision, the ALJ determined as a matter of law, the passage of four years between Complainant's protected activity and Respondent's delivery of pilot records to a potential employer did not support a retaliatory inference under AIR21.

Complainant filed a Motion for Reconsideration with the ALJ, which the ALJ denied.

ABUSE OF DISCRETION; ALJ DID NOT ABUSE DISCRETION GRANTING MSD WHILE OTHER MOTIONS WERE PENDING

During the proceedings below, Complainant filed several motions with the ALJ, and a Petition for Interlocutory Appeal with the Chief Administrative Law Judge and the ARB. These motions and petitions were all pending when the ALJ issued the Order Granting Summary Decision. On appeal, Complainant argued that the ALJ abused his discretion by granting summary decision while these motions were pending.

ALJs abuse their discretion if they: (1) base the decision on an error of law or use the wrong legal standard; (2) base their decision on a clearly erroneous factual finding; or (3) reach a conclusion that, though not necessarily the product of a legal error or a clearly erroneous finding, cannot be located within the range of permissible decisions.

The ARB determined that the ALJ did not abuse his discretion by issuing the Order Granting Summary Decision. The ARB reasoned: (1) the ALJ addressed the pending motions in the Order Granting Summary Decision and denied them as moot; (2) at the July 31, 2023 virtual hearing, the ALJ advised Complainant that he would not rule on any pending motions until ruling on the MSD; (3) Complainant ignored the ALJ's forewarning, and instead, opted to submit other motions and filings with the ALJ and the ARB; and (4) since the Order Granting Summary Decision, the ARB reviewed Complainant's Petition for Interlocutory Appeal and issued an Order of Non-Acceptance of Untimely Interlocutory Appeal. The ARB further noted that even if the ALJ erred by issuing the Order Granting Summary Decision while the Petition for Interlocutory Appeal was pending before the ARB, the error was harmless as the Board did not accept Complainant's Petition for Interlocutory Appeal.

CONTRIUBUTING FACTOR; A FOUR-YEAR GAP BETWEEN PROTECTED ACTIVITY AND ADVERSE ACTION, WITHOUT MORE, IS UNREASONABLE TO INFER RETALIATION

In the Order Granting Summary Decision, the ALJ held as a matter of law, the passage of four years between Complainant's protected activity and Respondent's delivery of pilot records to a potential employer did not support an inference of retaliation under AIR21. Because Complainant failed to offer any other evidence to support that his alleged protected activity influenced Respondent's conduct several years later, the ALJ dismissed his claim. On appeal, Complainant argued the ALJ erred in his causation analysis by ignoring United States Supreme Court precedent and First Circuit Court of Appeals precedent.

The ARB disagreed with Complainant and cited to Villiarimo v. Aloha Airlines in support of the ALJ's holding. In Villiarimo, the Ninth Circuit Court of Appeals determined a former employee failed to establish a prima facie discrimination case because he did not demonstrate causation as he only argued that his termination followed his protected activity. In rejecting the former employee's argument, the Ninth Circuit noted that the former employee's termination occurred eighteen months after his complaint and cited to several cases where the gap between protected activity and adverse action was too long. The ARB then highlighted the gap between Complainant's protected activity and adverse action as it was more than twice the time in Villiarimo.

Moreover, the ARB addressed its own precedent, Bauche v. Masimo Corp., and reiterated that a "significant gap makes it unreasonable to infer, from temporal proximity alone, that protected activity contributed to adverse employment action." Because Complainant did not oppose the MSD, the ALJ was left to evaluate causation solely based on temporal proximity, from February 2018, the date of Complainant's protected activity, and June 2022, the date Respondent sent the pilot records to the prospective employer. The ARB held that on this information alone, the ALJ properly determined that the passage of four years and four months was too long to infer retaliation under AIR21. 

RECUSAL; ALJS ARE PRESUMED IMPARTIAL AND PARTY MOVING FOR RECUSAL HAS A SUBSTANTIAL BURDEN TO PROVE OTHERWISE

On appeal, Complainant asserted that the ALJ erred in denying the motions to recuse himself from the proceedings below. Before the ARB, Complainant essentially alleged that the ALJ had a personal bias against him, received improper benefits from one of Respondent's business partners, and was not impartial in past rulings. For each motion, the ALJ concluded that Complainant failed to provide any evidence of bias or partiality.

An ALJ may recuse him or herself if their "impartiality might reasonably be questioned" or they have "a personal bias or prejudice concerning a party." The ARB presumes ALJs '"to be impartial,' and the party moving for recusal has a 'substantial burden' to prove otherwise." Generally, unfavorable rulings and possible legal errors are insufficient to prove bias.

The ARB examined the various filings Complainant submitted to the ALJ and ARB and determined that Complainant did not show that the ALJ had any personal bias against him based on any extra-judicial source of bias. Accordingly, the ARB held that the ALJ properly considered Complainant's motions for recusal, determined that they lacked merit, and continued presiding over the case.

MOTIONS FOR RECONSIDERATION; RECONSIDERATION IS APPROPRIATE WHEN THE TRIBUNAL CLEARLY MADE A MISTAKE OF FACT OR LAW OR WHEN THE FACTUAL SITUATION HAS CHANGED

Before the ALJ, Complainant filed a Motion for Reconsideration and argued that the Order Granting Summary Decision should be vacated because discovery was not completed, there were outstanding depositions, and "the interlocutory appeal and motion for stay stays the case awaiting ARB ruling[.]" On appeal, Complainant reiterated the same arguments.

Granting a motion for reconsideration is appropriate when the tribunal clearly made a mistake of fact or law or when the factual situation has changed materially since the previous decision. The ARB reviews ALJ rulings on reconsideration under an abuse of discretion standard.

The ARB held that the ALJ did not abuse his discretion in denying reconsideration. The ARB determined that Complainant did not allege any factual changes between the dismissal and the motion for reconsideration, and the ALJ did not make an error of fact when dismissing the case.

Administrator, Wage and Hour Div., USDOL v. Ten West Cattle, Inc., ARB Nos. 2023-0058, 2024-0003, ALJ Nos. 2018-TAE-00035, 2023-TAE-00002 (ARB May 29, 2025) (Decision and Order)

CORRESPONDING EMPLOYMENT; U.S. WORKERS

In Administrator, Wage and Hour Div., USDOL v. Ten West Cattle, Inc., ARB Nos. 2023-0058, 2024-0003, ALJ Nos. 2018-TAE-00035, 2023-TAE-00002 (ARB May 29, 2025), Respondent, a feedlot operator, employed H-2A workers to prepare and apply fertilizer, and seed, plant, and harvest corn. At the same time, Respondent also hosted foreign J-1 program participants under the J-1 Exchange Visitor Program (EVP), which permits sponsors to temporarily host foreign nationals as, among other things, "trainees and interns" to "enhance the skills and expertise of exchange visitors in their academic or occupational fields through participation in structured and guided work-based training and internship programs."

The Administrator charged Respondent with violating the H-2A program regulations by, among other things, failing to pay the J-1 program participants the H-2A Adverse Effective Wage Rate (AEWR). The Administrator argued that the J-1 program participants were engaged in "corresponding employment" with the H-2A workers and were, therefore, entitled to the same benefits, including payment of the AEWR, as the H-2A workers.

Relying on the ARB's decision in CTO-CHF P'ship (Cider Hill), ARB No. 2020-0022, ALJ No. 2019-TAE-00010 (ARB Nov. 23, 2020) (adopting and attaching (CTO/CHF P'Ship, ALJ No. 2019-TAE-00010 (ALJ Dec. 9, 2019)), the ALJs in this case determined that J-1 program participants could not be engaged in "corresponding employment" with H-2A workers. Respondent appealed.

On appeal, the ARB concluded that (1) only U.S. workers may be engaged in "corresponding employment" with H-2A workers, and (2) J-1 program participants, by definition, cannot be considered "U.S. workers" under the H-2A program.

CORRESPONDING EMPLOYMENT; ONLY U.S. WORKERS MAY BE ENGAGED IN "CORRESPONDING EMPLOYMENT WITH H-2A WORKERS"

The H-2A program regulations define "corresponding employment" as "[t]he employment of workers who are not H-2A workers by an employer . . . in any work included in the job order, or in any agricultural work performed by the H-2A workers." The ARB determined that it was not readily apparent from the text of the regulation whether "corresponding employment" extends beyond U.S. workers and to all workers, as the Administrator argues, or is limited to U.S. workers, as Respondent argues. However, looking to the context and history of the regulation, as well as contemporaneous and non-litigation pronouncements of the meaning of "corresponding employment" by the Department, the ARB affirmed Cider Hill's holding that only U.S. workers are covered by the corresponding employment definition.

First, the ARB looked to the Preamble to the 2010 Rule, which controlled the case, which repeatedly and exclusively discussed the term "corresponding employment" only in the context of U.S. and/or domestic workers. Likewise, the Notice of Proposed Rulemaking associated with the 2010 Rule also discussed the term "corresponding employment" in the context of U.S. workers. Thus, as the ALJ apply summarized in Cider Hill, "[t]here is no indication that any other type of worker [other than U.S. workers] was ever contemplated when the term" corresponding employment was used in the regulation.

The ARB also observed that the 2010 Rule's Preamble explained that "corresponding employment" has historically and consistently been contemplated to extend only to U.S. workers, well before the 2010 amendments. Thus, as with the 2010 iteration of the regulation, previous versions of the regulation always contemplated that only U.S. workers could be engaged in corresponding employment with H-2A workers.

Next, the ARB noted that prior to Cider Hill, the WHD's non-litigation position and guidance to the public was that only U.S. workers could be engaged in corresponding employment with H-2A workers. In a published Fact Sheet—which, we note, remained available on the WHD's website—the WHD stated: The Department of Labor's regulations governing the H-2A Program also apply to the employment of U.S. workers by an employer of H-2A workers . . . ." The ARB also found it significant that the H-2A regulations have been amended since the ARB issued its decision in Cider Hill, yet the Department has not altered the definition of "corresponding employment" to address or overrule the decision that the term is limited to U.S. workers.

As a result, the ARB rejected the Administrator's argument that the H-2A regulations' sporadic use of "U.S. workers" and "workers in corresponding employment" in the disjunctive demonstrates that "corresponding employment" is not limited to U.S. workers. The ARB found Respondent's argument that the disjunctive use could fairly be read to reach different, and broader classes of, individuals was more persuasive.

Finally, the ARB rejected the Administrator's policy arguments. The ARB determined that limiting corresponding employment to U.S. workers is consistent with the INA and one of its fundamental purposes to protect the U.S. workforce.

In a dissent, one Member disagreed with the majority, arguing that a plain language reading of the H-2A regulations makes clear that J-1 visa holders may be engaged in corresponding employment with H-2A workers. The dissenting Member also cited language from the 2010 Rule's Preamble indicating that the definition of "corresponding employment" extended to all workers and was an expansion of the statutory regime intended to further prevent harm to the wages of domestic agricultural workers by offering wage protections in order to disincentivize exploitive labor practices that depress U.S. agricultural wages. The dissenting Member also stated that applying the regulations to all non-H-2A workers in the circumstances presented is consistent with the overall H-2Aregulatory structure and supports the purpose of the corresponding employment regulation. Thus, the dissenting Member would overrule Cider Hill.

U.S. WORKERS; J-1 PROGRAM PARTICIPANTS ARE NOT U.S. WORKERS

The ARB also determined that J-1 program participants could not be "U.S. workers" as defined by the H-2A program regulations. As relevant here, the H-2A regulations define a "U.S. worker" as "[a]n individual who is not an unauthorized alien (as defined in 8 U.S.C. 1324a(h)(3)) with respect to the employment in which the worker is engaging." "Unauthorized alien," in turn, means "with respect to the employment of an alien at a particular time, that the alien is not at that time . . . authorized to be so employed by this chapter [Chapter 12 of the INA] of by the Attorney General." Stated simply, an alien may be considered a "U.S. worker" with respect to a particular type of employment for purposes of the H-2A program so long as they are "authorized to be so employed" under the INA.

The ARB observed that in fashioning the J-1 EVP, the Department of State clearly distinguished between bona fide training and internships, on the one hand, and ordinary employment or work, on the other. While J-1 program participants are authorized to engage in training and internship programs under the EVP, they are not authorized to engage in ordinary employment.

To be entitled to the AEWR under the H-2A program, a J-1 program participant would, by definition, have to be engaged in "employment."  Yet, if the J-1 program participant was engaged in "employment," then, by definition, they would have exceeded the authority of the J-1 EVP. And, if the J-1 program participant exceeded the authority of the J-1 EVP, then, by definition, they would not be a "U.S. worker" and would not be entitled to the benefits of the H-2A program, including the AEWR. As the regulatory programs are structured, J-1 program participants simply cannot be both properly engaged as interns or trainees under the J-1 EVP and simultaneously "employed" under the H-2A program.

The ARB rejected the Administrator's reliance on language in the Preamble to the 2007 Interim Final Rule for the J-1 trainees and interns regulations which recognized that "work is an essential component of on-the-job training, and that in many respects there are no conceptual legal distinctions between an employee and a trainee. These two perspectives are not inconsistent." While the Administrator argued that this means that a J-1 program participant could simultaneously be an intern for purposes of the J-1 EVP and an employee under the H-2A program, the ARB disagreed. The ARB agreed with the Department of State that it is "not inconsistent" for a J-1 intern to engage in "work" and "on-the-job training," which, in many respects, may be like work performed by others for the same employer. Yet, the J-1 EVP regulations also recognize that work-based learning must be distinguished from ordinary employment. Indeed, the Department of State expressly stated that the J-1 visa was not to be used as a substitute for an H-visa. Thus, although the J-1 program makes provision for appropriate work-based training, that does not mean that a J-1 program participant may be properly and simultaneously classified as both a J-1 intern and an employee under the H-2A program.

The ARB was also not persuaded by the Administrator's argument that J-1 program participants may be considered employees under the H-2A program merely because the J-1 EVP regulations identify other employment-related statutes with which J-1 program sponsors and hosts must comply. Simply because J-1 employers are required to follow specific statutory requirements does not mean that J-1 program participants must then be considered employees, or are authorized to be employed, for all purposes, including for purposes of benefit eligibility under the H-2A program, especially given the clear indications to the contrary built into the J-1 EVP regulations themselves.

In a concurring opinion, one Member agree with the majority's conclusions, and added that the Administrator's actions and position were egregious and violated the element of unfairness, potentially subjecting the Department to fees under the Equal Access to Justice Act, if it applied to these proceedings.

In a dissenting opinion, one Member agreed with the Administrator that J-1 visa holders are covered by the AEWR minimum wage requirement because they are U.S. workers as that term is defined in the H-2A regulations. According to the Member, the J-1 visa holders are either authorized to do the H-2A work being performed or they are not, the latter potentially meaning that Respondent is violating the terms of both the TEC and the J-1 visa program.

Jones v. Exclusive Jets, LLC, ARB No. 2023-0035, ALJ No. 2022-AIR-00003 (ARB May 28, 2025) (Order Awarding Attorneys' Fees)

ATTORNEYS' FEES; ARB AWARDED REASONABLE ATTORNEYS' FEES

In Jones v. Exclusive Jets, LLC, ARB No. 2023-0035, ALJ No. 2022-AIR-00003 (ARB May 28, 2025), the ARB awarded attorneys' fees of $103,195.00 for work performed before the ARB. The ARB found that Complainant's counsels' fee request evidenced a reasonable hourly fee as well as reasonable hours expended using the lodestar method of calculating fees. The ARB noted that Complainant's degree of success was great as it had found in favor of Complainant on all issues other than the proper method for calculating interest on the backpay award.

In its opposition to the fee request, Respondent did not object to the attorneys' hourly rates or the hours billed for work before the ARB or dispute Complainant's degree of success. Noting nuances in the case law, the ARB found unpersuasive Respondent's arguments that the fee should be reduced because the requested fees "completely eclipsed" the relief obtained or because Complainant's success was illusory because Respondent had appealed the case to the Fourth Circuit. In light of these considerations, the ARB granted the requested fees.

Gourneau v. BNSF Railway Co., ARB No. 2023-0034, ALJ No. 2021-FRS-00018 (ARB May 21, 2025) (Decision and Order)

PROTECTED ACTIVITY; CONTRIBUTING FACTOR; AFFIRMATIVE DEFENSE; DAMAGES

In Gourneau v. BNSF Railway Co., ARB No. 2023-0034, ALJ No. 2021-FRS-00018 (ARB May 21, 2025), the ARB affirmed the ALJ's Decision and Order finding that Respondent violated the FRSA by terminating Complainant's employment.

Complainant worked as a carman for Respondent from 2002 until his employment was terminated on January 22, 2020. As a carman, Complainant was responsible for inspecting train cars as they arrived at the train yard. Not every train was scheduled for inspection upon arrival, although carmen would note issues on "non-inspection" trains. For eighteen years, Complainant's only prior incident of discipline was for one unexcused absence due to the passing of his mother. Aside from that one absence, Complainant had a completely clean record until the four months preceding his dismissal.

In approximately August of 2019, Complainant raised an issue with Mark Bieber, Complainant's supervisor and a general foreman, regarding the administration of Respondent's "Broken Wheel Club" program, an incentive program that encouraged employees to report defects with wheels to prevent derailments. If an employee reported a defect and the person who administered the program found it eligible, the employee could receive $500. Complainant testified that he discovered that management in his district was not submitting the carmen's reported wheel defects for compensation. Complainant raised the issue with Bieber and made copies of the rules for himself, Bieber, and human resources.

On September 3, 2019, Complainant raised several more safety concerns. That morning, Complainant raised concerns pertaining to road conditions including washboarding, potholes, and missing blue flags. Later that shift, Complainant made three bad order reports on a train involving stencil violations. He noticed that some of the cars on a nearby non-inspection train were missing the required federal consolidated stencil to identify the cars. Later that day, while waiting for a train to pass, Complainant heard a sound that indicated the running boards were broken on a non-inspection train. Three total broken running boards were identified.

Also on September 3, 2019, Complainant was operating an ATV in the yard. He stopped to do work and saw his supervisor for that day, Myles Braun, speaking with one of his coworkers east of where Complainant worked. When Complainant completed his task, he got on his ATV and drove across a set of tracks. Within a few feet of crossing the tracks, Braun told Complainant to stop and admonished him for not stopping before crossing the track. Complainant responded that he knew Braun had seen him stop while performing work. Braun summoned Complainant to his office and Complainant received paperwork about the alleged failure to stop. Two days later, Complainant was notified there would be a formal investigation into the incident, and shortly after that, he was notified that a second charge of discourteousness was added.

Bieber selected Chad Vogele, a car supervisor, to conduct the investigation. Vogele sustained both charges. After sustaining both charges, Vogele initially recommended a 30-day suspension, with a 12-month probationary period. After conferring with Bieber, who wanted a more severe penalty for Complainant, Vogele recommended a 36-month probationary period, with a 30-day suspension. Because Vogele recommended discipline outside the standard policy of a suspension with a 12-month probationary period, Respondent's Policy for Employees' Performance Accountability (PEPA) committee became involved. An e-mail exchange followed between Vogele, Bieber, and the PEPA staff. The PEPA staff explicitly noted Complainant's clean record and stated that "I am not seeing something so egregious" as to deviate from the standard 12-month probation. Bieber advocated for a 36-month probationary period. Respondent imposed an actual 20-day suspension in addition to a "record" suspension, a Level S discipline entry in his personnel record for a severe safety violation, and a 12-month probationary period.

At the hearing, Complainant testified that he stopped in that location to avoid stopping in a designated foul area, which is prohibited. He further testified that he had stopped in that same location before, as had his colleagues. Three of Complainant's colleagues testified at the hearing that they had previously stopped where Complainant had stopped without incident. Complainant similarly testified that Respondent had never had a problem with him stopping at that location before. In October 2019, a safety meeting was held at which carmen were told to stop before crossing a track in the same manner as Complainant had stopped. After this meeting, several workers told Complainant that Bieber's instruction for properly crossing the tracks was the same as the conduct for which Complainant had been suspended.

On January 3, 2020, Complainant was working with three other men in the yard. Complainant began his portion of the train inspection, starting on the north side and working eastward. When he finished that portion, he called in an "OK train," crossed the track at the east end, and began working from the other end, moving west. Complainant's colleagues were able to take over once they could clear the tracks. The lead man told Complainant that once he had finished his share of the train and he could cross safely, he could stop work for the night. While Complainant was working, Bieber was in the office, operating the surveillance cameras. The video in the record showed an ATV crossing tracks on the west end of the yard. The driver stopped to complete a task, then proceeded to cross several tracks that were close together without stopping.

The ALJ found that it was impossible to tell from the video who drove the ATV. Bieber believed it was Complainant based on radio transmissions. Complainant said he did "not think it was him." While the ALJ generally found Complainant credible, the ALJ found this one aspect of his testimony evasive. However, the ALJ found that whether Complainant was driving the ATV was not critical to his conclusions. The ARB agreed.

Two days later, Complainant was pulled from service for another level S violation. A second investigation was held, with Vogele serving as the investigator, once again at Bieber's request. Bieber was the primary witness for Respondent at the investigation hearing, described the alleged conduct, advocated for finding it a violation, and recommended terminating Complainant's employment. Vogele sustained the charge and the PEPA committee reviewed the recommended termination. Because this was Complainant's second level S within the probationary period, Complainant's employment was terminated.

On May 4, 2023, the ALJ issued a D. & O. in favor of Complainant. Respondent appealed to the ARB.

PROTECTED ACTIVITY; HAZARDOUS SAFETY CONDITION; COMPLAINANT ENGAGED IN PROTECTED ACTIVITY

The ALJ found that Complainant engaged in protected activity under 49 U.S.C. § 20109(b)(1)(A) by making good faith reports of "hazardous safety or security conditions" when he: (1) challenged Respondent's failure to properly administer the Broken Wheel Club; (2) reported three bad orders for illegible stencils on September 3, 2019; (3) reported three broken running boards on September 3, 2019; and (4) reported washboard conditions, potholes in the yard, and missing flags at sections of the track throughout the fall of 2019.

Respondent contended that the ALJ erred in finding that Complainant's complaints regarding the Broken Wheel Club, reports of illegible stencils, and reports of broken running boards. Respondent argued that the word "hazardous" in the phrase "hazardous safety or security condition," meant a significant and immediate safety hazard, as opposed to something that is potentially hazardous or might become hazardous in the future. However, the Eighth Circuit, in which this case arose, has explicitly recognized that a disclosed safety condition need not be immediately hazardous or actually cause harm to be protected. Rather, the Eighth Circuit has emphasized that whether something is a hazardous safety condition is a factual issue, and that the "statute does not require that an accident or injury have occurred." Thus, in accordance with the Eighth Circuit and the statutory language, the ARB concluded that to establish a good faith report of a "hazardous safety or security condition," Complainant need not prove that the reported safety conditions be immediately hazardous or have actually caused harm.

The ARB found that substantial evidence supported the ALJ's findings that all four instances were protected activity and affirmed the ALJ's conclusion that Complainant engaged in protected activity.

CONTRIBUTING FACTOR; INTENT; CAT'S PAW; TEMPORAL PROXIMITY; PRETEXT; COMPLAINANT'S PROTECTED ACTIVITY WAS A CONTRIBUTING FACTOR TO HIS ADVERSE EMPLOYMENT ACTIONS

Complainant must establish by a preponderance of the evidence that his protected activities were a contributing factor to the adverse actions taken against him. A "contributing factor" includes "any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the [adverse] decision." This element can be established by either direct or circumstantial evidence. Temporal proximity between the protected activity and the adverse action is probative but is not determinative.

Since the D. & O. was issued in 2023, there have been important developments in the law relating to contributing factor and intent. The ALJ held that the complainant must establish that the employer intended to retaliate because of the protected activity based on Eight Circuit case law. The Supreme Court, in Murray v. UBS, provided clarity on the intent question. The Court held that while a complainant must prove that the protected activity was a contributing factor, he does not need to additionally prove that there was retaliatory intent or animus. Thus, the ARB held that a complainant is not required to show retaliatory intent in proving a contributing factor.

The ALJ found Respondent liable on a cat's paw theory of liability. Under the cat's paw theory, employers can be held liable for employment discrimination based on discriminatory animus of an employee who influenced, but did not make, the final employment decision. Cat's paw liability requires that the supervisor intends to cause an adverse employment action. If the supervisor's action is a proximate cause of the employer's adverse action, then the employer is liable.

Respondent challenged the ALJ's cat's paw analysis, arguing a lack of intent and that the ALJ applied a diminished standard that undermines existing case law. Respondent also emphasized the role of Vogele, his disciplinary investigations, and PEPA's review, highlighting their independence. The ARB found that the record substantially supported the ALJ's analysis. Specifically, the ARB found that the ALJ clearly catalogued how Bieber's actions led to Complainant's termination—Bieber's choice of investigator, Bieber's prompting to add a discourteous charge, Bieber's push for a more severe penalty for the September 3, 2019 incident, and, ultimately, Bieber's decision to charge Complainant with another violation for the January 3, 2020 incident despite dubious camera and audio evidence. The ARB also affirmed the ALJ's finding that, while PEPA committee members were unaware of Complainant's protected activity, Bieber's actions nonetheless led to Complainant's job loss because Bieber intended to retaliate and influenced the ultimate decision to terminate. Contrary to Respondent's assertions, PEPA was not isolated. Bieber spoke directly with PEPA about the appropriate discipline for the September 3, 2019 incident and argued for more discipline. The ARB concluded that PEPA's purported independence was not enough to change the outcome that PEPA relied on Bieber's initial charges of misconduct and investigations run by Bieber's chosen investigator.

The ARB also affirmed the ALJ's finding that temporal proximity and pretext supported the conclusion that Complainant's protected activity was a contributing factor to his suspension and termination, particularly in light of Complainant's clean track record, reputation, and history as a "tenacious safety advocate." Specifically, there was close temporal proximity between both Complainant's report about the Broken Wheel Club in August 2019 and bad order reports on September 3, 2019, with Braun's issuance of the charge against Complainant for his track crossing at the end of the shift on September 3rd. This proximity carried over to the January 3, 2020 incident and January 22, 2020 termination because only a few weeks separated the end of Complainant's suspension following the September 3, 2019 incident and the investigation of the January incident that led to his termination. Respondent contended that the ALJ erred in conflating the September 3, 2019 and January 3, 2020 incidents and purported that these events were broken by Complainant's second failure to stop. The ARB was not persuaded and affirmed the ALJ's findings on temporal proximity because Complainant's termination occurred within weeks of serving the first suspension, and only a few months after the initial disciplinary action was taken.

The ARB also found that Respondent's reasons for taking adverse action against Complainant were pretextual. The evidence demonstrated that it was accepted practice among carmen to stop some distance ahead of the yard track crossing as Complainant did in this case, there was no evidence of a consensus among Respondent's management as to what the correct stopping distance was, and the rule itself did not provide a stopping distance. Thus, the ARB found that the facts supported an inference that the reasons to discipline and later terminate Complainant were pretextual.

AFFIRMATIVE DEFENSE; RESPONDENT FAILED TO PROVE ITS AFFIRMATIVE DEFENSE

The ALJ determined that Respondent failed to meet its burden because the record evidence provided by Respondent did not show that it would have terminated Complainant in the absence of his protected activity, and because Complainant provided testimony from other carmen who testified they engaged in the same conduct and were not penalized.

Respondent argued that it met its burden of proof to establish that it would have terminated Complainant in the absence of protected activity because the two Level S violations in short succession would have been grounds for dismissal regardless. Respondent also argued that the comparators who testified in support of Complainant about their discipline for violating Rule 12.1.2 were not proper comparators due to the difference in the timing between offenses and because some of them accepted a waiver. Respondent further argued that the ALJ erred by faulting Respondent for failing to enforce "hypothetical rule violations of which there is no evidence that Bieber and Braun" were aware.

The ARB found that the ALJ's factual findings were supported by substantial evidence. Respondent's comparator evidence did not address carmen receiving discipline for stopping before crossing a track as Complainant did, which is at the crux of the alleged misconduct. The record left that question unanswered. Several carmen testified that they routinely stopped in the manner that Complainant did without receiving discipline. Furthermore, Bieber himself endorsed their choice of how and where to stop before crossing a track in a safety meeting following Complainant's termination where he advised carmen to proceed in a manner that they viewed as the same or similar to the conduct for which Complainant was disciplined. The ARB also found that the record did not show that Respondent consistently enforced Rule 12.1.2 or that it ever enforced it in the way it was used to terminate Complainant's employment. Thus, the ARB affirmed the ALJ's finding that Respondent failed to establish by clear and convincing evidence that it would have terminated Complainant absent his protected activity.

DAMAGES; REINSTATEMENT; BACK WAGES; PUNITIVE DAMAGES

The ALJ ordered the following remedies: (1) reinstatement; (2) $318,979.98 in back pay and $39,679.74 in prejudgment interest, with backpay and interest to continue to accrue until payment; (3) $70,000 in compensatory damages; (4) $150,000 in punitive damages; (5) reasonable attorney's fees and costs; (6) Respondent must seal all documents relating to the incidents, charges, and adverse actions addressed in the D. & O. and redact any such references; and (7) Respondent must post the D. & O. for a minimum of 60 days in a place and manner that is usual and customary for employees to gather and review employment related information.

First, Respondent challenged the ALJ's order of reinstatement, stating that the parties have too much animus. The ARB found that the statute requires reinstatement, and that there are very few exceptions to this. The ARB found that Complainant did not argue for a different outcome on appeal, and Respondent's own manager, who worked to terminate Complainant, admitted that he was a "good carman." The ARB concluded that nothing in the record supported granting an exception to the reinstatement requirement and affirmed the ALJ's order that Respondent reinstate Complainant.

Second, Respondent contended that the ALJ erred because he failed to account for Complainant's duty to mitigate damages. A wrongfully-discharged employee seeking back pay has a duty to exercise reasonable diligence to mitigate his damages by searching for substantially equivalent work. It is the employer's burden to prove that the employee failed to mitigate by submitting evidence that would establish that substantially equivalent positions were available, and that the employee failed to attempt to diligently secure such positions. An unemployed or underemployed claimant need not go into another line of work, accept a demotion, or take a demeaning position and will only forfeit his right to backpay if he refuses a job substantially equivalent to the one he was denied.

The ARB found that Respondent did not demonstrate a failure to mitigate. The job postings Respondent provided offered a lower pay rate and were not substantially equivalent to the position Complainant held with Respondent. The ARB also determined it was reasonable that Complainant's search for new work was limited due to the COVID-19 pandemic. Given Complainant's age and preexisting pulmonary conditions and the associated elevated risk of death from COVID-19, it was reasonable that Complainant did not seek new work. Thus, the ARB concluded that substantial evidence in the record supported the ALJ's decision and affirmed the ALJ's backpay award.

Third, Respondent challenged the ALJ's award of punitive damages. Respondent argued it took steps to comply with the law and that its policies insulate it from liability for any punitive damages because of its good-faith efforts to comply with the FRSA.

Relief under FRSA may include punitive damages up to $250,000. Punitive damages may be awarded when there has been a reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law. Whether punitive damages are warranted focuses on the employer's state of mind and does not require that the employer's misconduct be egregious. A plaintiff must prove the employer acted in the face of a perceived risk that its actions will violate federal law. The focus is on whether the employer's actions call for deterrence and punishment over and above that provided by compensatory awards. An employer may avoid punitive damages when it has made a good-faith effort to comply with the law.

The ALJ found that Bieber had animus against Complainant because he engaged in protected activity and engaged in intentional conduct in reckless disregard of Complainant's protected FRSA rights. The ARB concluded that substantial evidence supported the ALJ's finding.

The ALJ also found that Respondent's anti-retaliation policies were insufficient to establish a good faith effort to comply with the FRSA in this matter. Despite Respondent's policies, Bieber successfully used the PEPA process to effectively retaliate against Complainant. The ALJ described Bieber's conduct as "a months-long series of actions to discipline and then fire Complainant." The ARB noted that the evidence showed Bieber was directly in contact with PEPA and argued for harsher discipline. The ARB concluded that the record substantially supported the ALJ's finding that Respondent did not make a good faith effort to comply with FRSA. Accordingly, the ARB affirmed the ALJ's award of $150,000 in punitive damages.

Lear v. GFL Environmental, ARB No. 2024-0045, ALJ No. 2023-STA-00061 (ARB May 19, 2025) (Decision and Order)

DISMISSAL WITH PREJUDICE AS DISCOVERY SANCTION; NO ABUSE OF DISCRETION

In Lear v. GFL Environmental, ARB No. 2024-0045, ALJ No. 2023-STA-00061 (ARB May 19, 2025), the ARB affirmed the ALJ's dismissal of Complainant's STAA complaint due to Complainant's repeated and intentional failure to comply with discovery orders and obstructive actions.

The ARB found the ALJ did not abuse her discretion in dismissing the complaint with prejudice because she analyzed the factors an ALJ should consider in determining whether dismissal as a discovery sanction is warranted pursuant to 29 C.F.R. § 18.57(b)(1)(vi) and ARB precedent: (1) prejudice to the other party; (2) the amount of interference with the judicial process; (3) the culpability, willfulness, bad faith, or fault of the litigant; (4) whether the party was warned in advance that dismissal of the action or default judgment could be a sanction for failure to cooperate or noncompliance; and (5) whether the efficacy of lesser sanctions was considered. The ARB noted that while the factors above did not "create a rigid test," the fact finder was obligated to conduct a careful analysis prior to issuing a dismissal or default judgment for non-compliance with discovery orders. 

The ARB further determined that the ALJ had not abused her discretion because her analysis complied with Eleventh Circuit case authority on dismissal as a discovery sanction under Federal Rule of Civil Procedure 37.

In a concurrence, one Member noted Complainant was pro se and that he had engaged in a pattern of contumacious behavior in withholding evidence. The Member suggested the Office of Administrative Law Judges furnish pro se parties with basic instructions on the requirements of discovery as a time-saving and preventative measure.

Johnson v. Inpax Shipping Solutions, ARB No. 2025-0023, ALJ No. 2024-STA-00092 (ARB May 16, 2025) (Decision and Order Dismissing Petition for Review)

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

In Johnson v. Inpax Shipping Solutions, ARB No. 2025-0023, ALJ No. 2024-STA-00092 (ARB May 16, 2025), the ARB dismissed Complainant's petition for review because Complainant failed to show good cause for failing to file a timely opening brief.

Before the ALJ, Respondent raised its affirmative defense that Complainant did not timely file his complaint within 180 days of the adverse action. The ALJ issued an Order to Show Cause ordering Complainant to show cause why the claim should not be dismissed for failure to timely file a complaint within 180 days of the adverse action. Complainant submitted two responses, and the ALJ considered them, but ultimately dismissed his complaint because the OSHA complaint was untimely and equitable tolling did not apply.

On December 14, 2024, Complainant filed a Petition for Review with the ARB. On December 31, 2024, the ARB issued a Briefing Order instructing Complainant to file an opening brief within twenty-eight (28) days. Complainant did not submit an opening brief as ordered.

Consequently, on February 12, 2025, the ARB issued an Order to Show Cause ordering Complainant to explain why the ARB should not dismiss the appeal for failing to timely file an opening brief. On March 12, 2025, the ARB issued a Second Order to Show Cause because the tracking information for the certified mailing of the Order to Show Cause indicated that it was not delivered to Complainant's mailing address of record. In the Second Order, the ARB reiterated its previous instructions from the Order to Show Cause, ordered Complainant to respond to the Second Order to Show Cause and file his opening brief within fourteen calendar days, and cautioned Complainant that failure to comply may lead to dismissal without further notice.

On March 24, 2025, Complainant sent the ARB an email requesting a month extension to obtain an attorney. Before the ARB could respond to Complainant's extension request, Complainant filed two untimely documents as new appeals, one entitled "Just Cause" and another entitled "Briefing," respectively. The ARB issued an Order Granting, In Part, Extension of Time for Complainant to obtain counsel and submit a revised response to the Second Order to Show Cause and opening brief within fourteen (14) calendar days. In this Order, the ARB: (1) advised that it reviewed Complainant's March 27 filings; (2) determined neither filing discussed Complainant's "just cause" for failing to file a timely opening brief nor the perceived errors in the ALJ's Order Dismissing Complaint; and (3) noted that it would consider the March 27 filings for Complainant's appeal if Complainant did not obtain counsel and/or did not submit a revised response and opening brief within fourteen calendar days.

Complainant did not notify the ARB that he obtained counsel or file a revised response to the Second Order to Show Cause or a revised opening brief as per the ARB's instructions. The ARB considered Complainant's March 27 filings and determined that Complainant did not show good cause for failing to file a timely opening brief. The ARB noted that Complainant's Just Cause filing did not articulate good cause or excuse for missing the original briefing deadline.

Further, the ARB also stated that even if it found good cause to accept the untimely brief, Complainant's filings did not address the perceived errors in the ALJ's Order Dismissing Complaint.

Gonzales v. Global Crossing Airlines, ARB No. 2025-0040, ALJ No. 2024-AIR-00029 (ARB May 16, 2025) (Decision and Order Dismissing Petition for Review)

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

In Gonzales v. Global Crossing Airlines, ARB No. 2025-0040, ALJ No. 2024-AIR-00029 (ARB May 16, 2025), the ARB dismissed the Complainant's Petition for Review for failure to file an opening brief as ordered by the ARB.

On March 6, 2025, Complainant filed a Petition for Review of the ALJ's Order Dismissing Case. The ARB issued a briefing order, but Complainant did not file an opening brief. Therefore, on April 22, 2025, the ARB issued an Order to Show Cause ordering Complainant to explain why the Board should not dismiss the appeal for failure to comply with the Board's order and briefing requirements. Complainant did not respond or file an opening brief. Accordingly, the ARB dismissed the appeal.

Administrator, Wage and Hour Div., USDOL v. JRW Service Group, LLC, ARB No. 2025-0001, ALJ No. 2021-DBA-00007 (ARB May 15, 2025) (Decision and Order)

FAILURE TO FILE A TIMELY PETITION FOR REVIEW; FORFEITURE

In Administrator, Wage and Hour Div., USDOL v. JRW Service Group, LLC, ARB No. 2025-0001, ALJ No. 2021-DBA-00007 (ARB May 15, 2025), the ARB affirmed the ALJ's decision. Respondents had filed an untimely petition for review with the ARB and had provided no explanation for its untimely filing. Six months after filing the petition for review, Respondents argued for the first time that their appeal was timely filed. The ARB deemed Respondents' arguments on appeal that should have been raised before the ALJ to be forfeited. The Board found significant that Respondents had failed below to object (or respond) to an ALJ Order to Show Cause asking them to demonstrate why a Motion for Clarification filed by the Administrator should not be granted. Unopposed, the ALJ granted the Administrator's Motion.

Lawn Groomers, Inc., ARB No. 2025-0046, ALJ No. 2025-TLN-00033 (ARB May 14, 2025) (Decision and Order)

JURISDICTION; ARB LACKS JURISDICTION OVER BALCA APPEALS

In Lawn Groomers, Inc., ARB No. 2025-0046, ALJ No. 2025-TLN-00033 (ARB May 14, 2025), Petitioner filed a Petition for Review with the ARB of a D&O by the Department's Board of Alien Labor Certification Appeals (BALCA). The ARB dismissed the case because it does not have jurisdiction to hear and decide appeals of BALCA decisions.

Petitioner applied to the Department's Office of Foreign Labor Certification (OFLC) to hire foreign temporary workers under the H-2B program. OFLC denied Petitioner's application, and Petitioner appealed to BALCA. BALCA affirmed the denial of Petitioner's application. Petitioner then filed an appeal of the BALCA decision with the ARB.

The ARB's jurisdiction is limited to the statutes explicitly delegated to it by the Secretary of Labor. The Secretary has delegated the authority to review a denial of an H-2B application only to BALCA; the Secretary has not delegated any power or authority to the ARB to have any role in that process or to review BALCA decisions.

In support of its appeal, Petitioner cited 29 C.F.R. § 503.51(a), which concerns back-end enforcement proceedings by the Department's Wage and Hour Division for violations of H-2B program requirements. Those back-end enforcement proceedings are heard by an ALJ and may be appealed to the ARB. In contrast, the proceedings in this case concerned a front-end certification decision, which rests solely in the jurisdiction of BALCA.

Petitioner also cited Paragraphs 5(b)(27) and (28) of the Secretary's delegation of authority to the ARB, which delegate to the ARB the authority to hear ALJ decisions arising under 8 U.S.C. § 1184(c)(14); 8 U.S.C. § 1188(b)(2); 20 C.F.R. Part 655, Subpart A; and 29 C.F.R. Part 503, Subpart C. Those provisions give the ARB the ability to hear and decide appeals in back-end enforcement proceedings involving alleged H-2B violations, in contrast to the front-end certification decisions appealable to BALCA here.

Cagle v. Broken Arrow Excavation, ARB No. 2025-0044, ALJ No. 2024-STA-00049 (ARB May 9, 2025) (Decision and Order)

WITHDRAWAL; ORDER APPROVING WITHDRAWAL OF COMPLAINANT'S PETITION FOR REVIEW

In Cagle v. Broken Arrow Excavation LLC, ARB No. 2025-0044, ALJ No. 2024-STA-00049 (ARB May 9, 2025), Complainant requested to withdraw his appeal before the ARB. The STAA regulations provide that "a party may withdraw a petition for review of an ALJ's decision at any time before that decision becomes final by filing a written withdrawal with the ARB." The regulations give the ARB the discretion to determine whether to approve the request for withdrawal, and specify that if a petition for review is "withdrawn because of settlement, the settlement must be submitted for [the ARB's] approval." Consistent with these regulations, the ARB ordered Complainant to certify whether this matter had been resolved by settlement. Complainant did not respond to the ARB's order. In consideration of Complainant's request to withdraw his appeal, his failure to abide by the Board's orders, and the apparent lack of a settlement in this case, the ARB dismissed his appeal.

SANCTIONS; ARB DOES NOT HAVE AUTHORITY TO ISSUE MONETARY SANCTIONS

Respondent filed a motion for sanctions, asserting that Complainant's appeal was filed in bad faith. Respondent requested "dismissal of this appeal, and [the award of] sanctions, costs, and such other and further relief that may be awarded at law or in equity." The ARB denied Respondent's request for sanctions. Absent statutory authority, the ARB cannot award monetary sanctions. Additionally, Respondent did not identify any other sanction—besides dismissal, the ARB ordered for the reasons set forth above—that would be appropriate in this case.