Administrative Review Board Decisions

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

Duggan v. FreedomRoads LLC, ARB No. 2026-0041, ALJ No. 2026-CFP-00002 (ARB May 29, 2026) (Order Remanding Case to Administrative Law Judge to Resolve Pending Motion for Reconsideration)

TIME IN WHICH TO APPEAL; RECONSIDERATION

In Duggan v. FreedomRoads LLC, ARB No. 2026-0041, ALJ No. 2026-CFP-00002 (ARB May 29, 2026), the ARB remanded the case to the ALJ to permit him to rule on a pending motion for reconsideration. The ALJ had previously issued a decision dismissing the case on the grounds that Complainant had abandoned his claim, as evidenced by his counsel missing a prehearing conference and failing to respond to the ALJ's order to show cause. Complainant filed a motion for reconsideration with the ALJ and a petition for review with the ARB. The ARB noted that timely filing a motion for reconsideration with the ALJ extends the time in which a party may seek review of a decision by the ARB, as the time in which to file a petition for review does not begin to run until after the ALJ disposes of the motion for reconsideration. Since Complainant's filing of the petition for review with the ARB deprived the ALJ of jurisdiction over the case, the ARB remanded the case to the ALJ, finding that the interest of judicial economy would be best served by allowing the ALJ to rule on Complainant's motion for reconsideration.

In re Hacker, ARB No. 2026-0032 (ARB May 29, 2026) (Decision and Order)

JURISDICTION; FAILURE TO FILE BRIEF PER ORDER TO SHOW CAUSE; MATTER NOT SUBJECT TO ARB REVIEW

In In re Hacker, ARB No. 2026-0032 (ARB May 29, 2026), Petitioner asserted she was appealing a letter she received from the U.S. Department of Labor Wage and Hour Division's Portland District Office in which that office declined to treat information Petitioner had provided as a complaint and declined to conduct an investigation of Petitioner's allegations of H-2B violations. The ARB issued an Order to Show Cause directing Petitioner to file a brief explaining why it could hear her matter given the limits of its authority and its apparent lack of jurisdiction. Petitioner failed to file a brief per the Order to Show Cause. The ARB also found that the H-2B regulations prescribe an administrative appeal process applicable to certain Wage and Hour Division determinations and that no such determination existed in Petitioner's matter. For these reasons, the ARB concluded the matter was not subject to the ARB's review and dismissed the case.

Oyola v. Washington Metropolitan Area Transit Authority, ARB No. 2025-0048, ALJ No. 2024-NTS-00001 (ARB May 29, 2026) (Decision and Order Vacating and Remanding)

ORDER OF REMAND; ALJ ERRED BY TREATING CASE AS A KICK-OUT

In Oyola v. Washington Metropolitan Area Transit Authority, ARB No. 2025-0048, ALJ No. 2024-NTS-00001 (ARB May 29, 2026), Complainant filed a petition with the ARB to review an ALJ's Order Granting Complainant's Motion to Change Venue and Order Dismissing with Prejudice so Complainant May Remove for Change of Venue (Order) for Complainant's whistleblower claims arising under the National Transit Systems Security Act (NTSSA) and the Patient Protection and Affordable Care Act (ACA).

On February 24, 2025, Complainant filed a Motion to File a Point of Order with the ALJ, in which he argued that a change of venue was reasonable, but requested that the ALJ hold off on ruling until he filed for a change of venue because he had wanted the case to remain under DOL authority and did not "want to enter a ‘Kick-Out' program." Despite this, the ALJ dismissed the complaint with prejudice, finding that Complainant demonstrated good cause and met the requirements of the NTSSA's removal provision. Complainant petitioned the ARB to review the ALJ's order and argued that the ALJ prematurely dismissed his complaint.

The NTSSA provides that an employee may bring an original action for de novo review in district court if the Secretary of Labor has not issued a final decision within 210 days after the complaint was filed and if the delay is not due to the bad faith of the employee. A complainant must file a copy of the federal court complaint with the ALJ or ARB, as appropriate, within seven days of filing. Similarly, the ACA provides that a complainant may bring an action for de novo review in district court if the Secretary has not issued a final decision within 210 days of the filing of the complaint or within 90 days after receiving a written determination. A complainant must also file a copy of the federal complaint with the ALJ or ARB within seven days of filing.

The ARB concluded that the NTSSA and ACA kick-out requirements were not satisfied because Complainant had not brought an action at law or equity for de novo review in district court regarding his NTSSA or ACA whistleblower claims. Thus, the ARB vacated the ALJ's Order and remanded the matter to the ALJ for further proceedings.

Artis v. Atlanta Cheesecake Co., ARB No. 2024-0059, ALJ No. 2023-TAX-00009 (ARB May 28, 2026) (Decision and Order)

PROTECTED ACTIVITY; ALLEGED PROTECTED ACTIVITY DID NOT IMPLICATE THE TFA

In Artis v. Atlanta Cheesecake Co., ARB No. 2024-0059, ALJ No. 2023-TAX-00009 (ARB May 28, 2026), the ARB affirmed the ALJ's entry of summary decision in favor of Respondent. Complainant alleged that she engaged in protected activity under the TFA when she filed a EEOC charge of discrimination against Respondent alleging sexual harassment and race discrimination, which included a brief mention of an employee who was "working 7.5 years illegally under a false name." The ARB determined that this statement did not demonstrate anything remotely protected under the TFA. It did not convey a reasonable belief of a violation of internal revenue laws or any provision of federal law related to tax fraud. Finding no error in the ALJ's decision, the Board affirmed the ALJ's dismissal of Complainant's complaint.

In re Jefferson, ARB No. 2026-0031 (ARB May 28, 2026) (Decision and Order)

JURISDICTION; MATTER NOT SUBJECT TO ARB REVIEW

In In re Jefferson, ARB No. 2026-0031 (ARB May 28, 2026), the ARB dismissed the case on the grounds that the ARB lacked jurisdiction to hear Petitioner's claims. Petitioner sent the Board a series of letters stating that she had received a letter from the Department of Labor's Wage and Hour Division (WHD) indicating that WHD had determined not to take action on her complaint alleging that her employer had failed to pay her overtime, as required by the Fair Labor Standards Act (FLSA) and she wished to appeal WHD's determined. Petitioner also stated in the letters that she had sustained an on-the-job injury, been denied a reasonable accommodation, and had been retaliated against by her employer in violation of the Federal Employees' Compensation Act and the Rehabilitation Act.

The ARB dismissed the case, noting that it was a tribunal of limited jurisdiction. The ARB operates pursuant to delegated authority to hear appeals of certain decisions by the Administrator of the WHD and final decisions of ALJs arising under specific statutes. The ARB's delegation of authority did not provide it with jurisdiction over the specific claims Petitioner raised. The ARB also noted that it did not have the authority to transfer or refer Petitioner's case to another tribunal as she had requested.

Balasubramanian v. New Town Public Schools, ARB No. 2025-0085, ALJ No. 2025-LCA-00003 (ARB May 27, 2026) (Decision and Order)

SETTLEMENT AGREEMENTS; ARB LACKS AUTHORITY TO ENFORCE CONTRACTS AND SETTLEMENT AGREEMENTS

In Balasubramanian v. New Town Public Schools,ARB No. 2025-0085, ALJ No. 2025-LCA-00003 (ARB May 27, 2026), the ARB affirmed the ALJ's Order Dismissing Claim. Complainant filed a wage complaint with the Department of Labor's Wage and Hour Division (WHD), alleging that New Town Public Schools violated a labor condition application by failing to pay the required wage. WHD found no INA violation on November 5, 2024, and Complainant then requested a hearing before the OALJ.

During the OALJ proceedings, the parties participated in mediation and reached a settlement. On April 29, 2025, they filed a Settlement Agreement. On May 1, 2025, the ALJ approved the Settlement Order and issued an order incorporating its terms and requiring the parties to comply with them.

Later, Respondent moved to dismiss the case, asserting that dismissal was required under the Settlement Agreement once Complainant received payment. Complainant opposed the motion to dismiss because he claimed Respondent had not provided the required service credits. Respondent replied that it had made the required retirement contributions and that the Settlement Agreement did not require it to provide additional proof or information about retirement fund credits.

After discussing the dispute with the parties, the ALJ concluded that the Settlement Agreement had been fully consummated and dismissed the claim with prejudice. Complainant then petitioned the ARB for review.

On appeal, Complainant argued that the ALJ should not have dismissed the case because Respondent had not fully performed the Settlement Agreement. He claimed Respondent had failed to provide retirement service credit and had not supplied documentation for other contributions and withholdings shown on his Form W-2. Complainant requested the ARB to order Respondent to provide proof of all transfers, contributions, and service credits, and to change the dismissal from "with prejudice" to "without prejudice."

The ARB rejected these arguments. First, although Complainant initially claimed that Respondent had not provided the retirement service credit, he later acknowledged in his opening brief that the credit had in fact been provided. Because the record supported that concession, the ARB found the issue moot.

Second, regarding Complainant's request for additional documentation, the ARB found that he did not clearly identify what documents he wanted or point to any settlement provision requiring Respondent to provide them. The ARB also noted that Complainant had already received information from the retirement agency showing the contributions and service credits, as well as a paystub from Respondent, and he did not dispute that Respondent had paid all amounts required under the Settlement Agreement.

Third, the ARB explained that even if there was a dispute about compliance with the Settlement Agreement, it lacks authority to enforce contracts. The ARB may review and affirm an ALJ's dismissal based on a settlement, but it does not have authority to supervise compliance with or adjudicate alleged breaches of the agreement.

For the same reason, the ARB refused to change the dismissal from "with prejudice" to "without prejudice." Because the Settlement Agreement expressly called for dismissal with prejudice, and no court had invalidated the Settlement Agreement or ordered further proceedings, the ARB found no basis to alter the ALJ's order. It therefore affirmed the dismissal.

Gutierrez v. R.B. Stewart Petroleum Products, Inc., ARB No. 2024-0013, ALJ No. 2022-STA-00043 (ARB May 22, 2026) (Decision and Order)

CONTRIBUTING FACTOR CAUSATION; SAME ACTION AFFIRMATIVE DEFENSE  

In Gutierez v. R.B. Stewart Petroleum Products, Inc., ARB No. 2024-0013, ALJ No. 2022-STA-00043 (ARB May 22, 2026), the ARB affirmed the ALJ's D. & O. Complainant worked for R.B. Stewart Petroleum Products, Inc. (RBS) as a tanker driver from June 2017 until his termination on February 21, 2022. His job involved transporting and delivering fuel.

During a shift on February 15-16, 2022, Complainant stopped his truck on the shoulder of a two-lane highway for about 32 minutes after experiencing fatigue. Although he turned on the truck's hazard lights, he did not place reflective warning triangles or park far enough from the roadway, contrary to company policy and DOT regulations. He also did not notify dispatch or management that he had stopped due to fatigue, even though company policies required drivers to report extended breaks and fatigue-related inability to complete a shift.

After the shift, dispatch raised concerns about the length of Complainant's workday. Management reviewed his logs and video footage of the roadside stop and concluded that his conduct created serious safety risks. Based on that review, two managers recommended termination, subject to approval by RBS's vice president. At that point, Complainant had not told management that fatigue caused the stop.
On Complainant's next shift, because the termination decision had not yet been finalized, a driver trainer accompanied him. During that shift, Complainant reported fatigue and stopped driving. The trainer informed a supervisor, drove Complainant back to the terminal, and finished the deliveries. Later that day, Complainant emailed management about his fatigue symptoms.

The next day, management discussed the email internally but did not send it to the vice president, as the termination decision had already been made based on the February 15–16 incident. The vice president then approved the termination. On February 21, 2022, Complainant was terminated for violating company transportation policies and DOT regulations. During the termination meeting, Complainant stated that he had stopped on February 15–16 because he was tired.

The ALJ found that Complainant's protected activity was not a contributing factor in his termination and, alternatively, that RBS would have terminated him anyway. Complainant petitioned for review before the ARB.

CONTRIBUTING FACTOR; EMPLOYER'S KNOWLEDGE; INTERVENING EVENT MAY DIMINISH TEMPORAL PROXIMITY; FOR AN ACT TO CAUSE AN OUTCOME, THE ACT MUST OCCUR FIRST

The ALJ found that Complainant engaged in protected activity by stopping work due to fatigue and later reporting fatigue and illness, but concluded that the protected activity did not contribute to his termination. Instead, the ALJ found that RBS decided to terminate Complainant after reviewing logs and video showing serious safety violations during the February 15–16 shift, including stopping unsafely on a highway shoulder, failing to deploy reflective triangles, parking too close to traffic, and failing to notify dispatch.

The ARB agreed with the ALJ and held that substantial evidence supported the finding of no causation. First, RBS did not know during the February 15–16 stop that Complainant had stopped because of fatigue as he did not tell dispatch or management until the termination meeting. Management may have known he stopped, but not that he was engaging in protected activity.

Second, even if RBS had known, the unsafe manner in which Complainant stopped constituted an intervening event that broke any causal link. The ARB reiterated that temporal proximity between a protected activity and an adverse action may be undermined by a legitimate intervening event. Here, the ARB agreed with the ALJ and found that management acted based on the serious safety violations surrounding the stop, not because Complainant stopped driving due to fatigue.

Third, Complainant's later protected activities—reporting fatigue during the February 16–17 shift, emailing management, and calling in sick on February 17—also were not contributing factors because management had already decided to seek termination before those events occurred. Testimony and contemporaneous emails supported that conclusion. Because causation requires that the protected activity influence the decision before the adverse action is made, the ARB affirmed the ALJ's finding that Complainant failed to prove his protected activity contributed to his termination.

SAME ACTION AFFIRMATIVE DEFENSE; VIOLATIONS OF DOT REGULATIONS AND EMPLOYER'S POLICY; NO EVIDENCE OF RETALIATRY ANIMUS, HOSTILITY, SHIFTING EXPLANATIONS, INCONSISTENT ENFORCEMENT, OR PREXTEXT

The ALJ found that, even assuming Complainant established causation, Respondents met their burden proving by clear and convincing evidence that they would have taken the same adverse action in the absence of Complainant's protected activity. The ALJ concluded that the termination was based on serious safety violations during the February 15–16 shift, that there was no evidence of retaliatory motive or pretext, and that credible testimony showed Complainant would not have been terminated if he had followed safety procedures or contacted dispatch for help.

On appeal, Complainant argued that the ALJ relied too heavily on her causation analysis, failed to apply the heightened clear-and-convincing standard properly, and overlooked the lack of evidence of comparable discipline. He also challenged the company's reflective-triangle policy as unreasonable and argued that he acted as safely as possible under the circumstances.

The ARB rejected those arguments and agreed with the ALJ. The ARB found substantial evidence that Respondents would have terminated Complainant regardless of any protected activity because he created a serious safety hazard by stopping unsafely on a dark, high-speed roadway while hauling hazardous materials, parking too close to traffic, and failing to deploy reflective triangles as required. The ARB also credited testimony that Complainant would not have been terminated if he had stopped safely, contacted dispatch, or properly used warning devices.

The ARB further noted that Respondents consistently accommodated fatigued drivers by allowing rest breaks, arranging replacement drivers, or transporting drivers back to the terminal, and Complainant had used those options before. Respondents' explanation for the termination remained consistent and was supported by policies, training materials, logs, video footage, and the termination notice. Because there was no evidence of retaliatory animus, hostility, shifting explanations, inconsistent enforcement, or pretext, the ARB affirmed the ALJ's alternative finding that Respondents proved they would have terminated Complainant even absent protected activity.

Wang v. Capgemini America Inc., ARB No. 2026-0038 (ARB May 20, 2026) (Order of Dismissal)

JURISDICTION; MATTER NOT SUBJECT TO ARB REVIEW

In Wang v. Capgemini America Inc., ARB No. 2026-0038 (ARB May 20, 2026), Complainant petitioned the Board to review an adverse decision by the Assistant Regional Administrator for the Chicago Regional Office of the Occupational Safety and Health Administration concerning Complainant's complaint arising under Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c).  Because the ARB does not have jurisdiction to hear and decide appeals arising under Section 11(c), it dismissed the case.

Gemoll v. Microsoft Corp., ARB No. 2025-0016, ALJ No. 2024-SOX-00001 (ARB May 14, 2026) (Decision and Order)

TIMELINESS; EQUITABLE TOLLING

In Gemoll v. Microsoft Corp., ARB No. 2025-0016, ALJ No. 2024-SOX-00001 (ARB May 14, 2026), the ARB affirmed the ALJ's order granting Respondent's motion for summary judgment. The ARB held that Complainant did not timely file a complaint with OSHA and the circumstances of the case did not warrant equitable tolling.

Complainant was employed by Respondent until he was terminated in June 2022. Within 180 days of his termination, Complainant reached out to the FBI to report numerous allegations against Respondent relating to revenue misreporting, theft of intellectual property, whistleblower retaliation, and wage and hour violations. However, it was not until August 2023 that Complainant filed a complaint with OSHA alleging that he was fired in retaliation for engaging in protected activity, in violation of the Sarbanes-Oxley Act (SOX) and the Consumer Financial Protection Act (CFPA). OSHA dismissed this complaint as it was not made within 180 days of Complainant's termination, as required by SOX and the CFPA. The ALJ similarly found that the complaint was untimely and rejected Complainant's argument that his report to the FBI constituted mistakenly raising the precise statutory claim at issue in the wrong forum, a well-established basis for equitable tolling.

In determining that Complainant's report to the FBI did not raise the precise statutory claim at issue, the ARB noted that: (i) Complainant's primary purpose appeared to be reporting criminal misconduct; (ii) Complainant did not clearly indicate the protected activity that he allegedly engaged in; (iii) Complainant did not unambiguously specify an adverse employment action that Respondent took against him; (iv) Complainant did not allege a causal connection between a protected activity and a specific adverse action against him; and (v) Complainant did not ask for backpay, reinstatement, or other make-whole remedies associated with whistleblower retaliation claims. The ARB held that although claims filed in the wrong forum are measured against the same standards under which an OSHA complaint is measured, such complaints must be evaluated with the additional consideration of the equitable nature of what the ARB is being asked to do.

The ARB also pointed to Complainant's later communications with OSHA, in which he described the report to the FBI primarily in terms of criminal allegations he was leveling against Respondent. The ARB explained that this was further evidence that Complainant's initial report to the FBI did not raise the same claim that Complainant was now seeking to raise.