Administrative Review Board Decisions

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

Singh v. Intel Corporation, ARB No. 2025-0043, ALJ No. 2024-CAR-00005 (ARB Aug. 29, 2025) (Decision and Order Affirming Dismissal)

REMOVAL TO FEDERAL COURT; ARB AFFIRMED DISMISSAL WHERE COMPLAINANT FILED ORIGINAL ACTION IN DISTRICT COURT

In Singh v. Intel Corp., ARB No. 2025-0043, ALJ No. 2024-CAR-00005 (ARB Aug. 29, 2025), the ARB affirmed the ALJ's dismissal of Complainant's complaint where Complainant filed an original action in a U.S. District Court.

Complainant filed a claim with OSHA under the Criminal Antitrust Anti-Retaliation Act of 2020 (CAARA) on July 24, 2024. OSHA dismissed the claim, and Complainant requested a hearing with an ALJ. 

Simultaneous to his proceedings before the Department of Labor, Complainant also pursued a claim against Respondent in federal district court. The federal district court action did not originally include a claim under CAARA. However, on January 15, 2025, Complainant filed a Motion for Protection in district court, demanding a payment of $4,000 per month until he was awarded $4.5 billion in damages, citing 15 U.S.C. § 7a-3, among other statutes. The federal district court denied Complainant's motion and informed him that if he wished to bring a claim under the statutes he relied on in his motion, he had to file an amended complaint. On February 5, 2025, Complainant filed an amended complaint in District Court, requesting monetary damages pursuant to 15 U.S.C. § 7a-3 and other laws. On February 17, 2025, Complainant alerted the ALJ to his complaint in federal district court.

The ALJ dismissed Complainant's complaint on February 20, 2025, finding that he no longer had jurisdiction of Complainant's complaint because Complainant filed a complaint in U.S. District Court in compliance with CAARA and because more than 180 days had passed since Complainant filed his OSHA complaint and no final decision of the Secretary of Labor had been issued. Complainant appealed this dismissal to the ARB.

The CAARA contains a kick-out provision whereby a whistleblower may remove the matter to federal district court, if the Secretary has not issued a final decision within 180 days of the filing of the complaint. Filing a kick-out in federal district court under this provision divests the Department of Labor of jurisdiction over the case.

Complainant filed the OSHA complaint on July 24, 2024; the 180-day period was reached on January 20, 2025. Complainant filed his first demand for damages under CAARA in a federal district court on January 15, 2025, and later amended his complaint to include his demand for damages under CAARA on February 5, 2025. Because Complainant filed in federal court under CAARA's kick-out provision and more than 180 days had passed, the ALJ dismissed Complainant's case on February 20, 2025.

The ARB determined that Complainant kicked-out his complaint to U.S. District Court when he requested monetary damages pursuant the CAARA after the 180-day period expired. The ARB was not persuaded by Complainant's arguments on appeal. Complainant's only argument pertaining to the Department of Labor's jurisdiction over this claim was OSHA's investigation. However, OSHA concluded its investigation prior to both Complainant requesting CAARA damages in his filings in federal court and before the 180-day period had passed. Accordingly, the ARB concluded that Complainant did not meet his burden on appeal and affirmed the ALJ's dismissal of the case.

Administrator, Wage and Hour Div., USDOL v. Five Star Automatic Fire Protection LLC, ARB No. 2023-0051, ALJ No. 2019-DBA-00004 (ARB Aug. 25, 2025) (Decision and Order Affirming in Part and Vacating and Remanding in Part)

JOB MISCLASSIFICATION; INCORRECT WAGE RATE; DEBARMENT; DUTY OF EXPLANANTION

In Administrator, Wage and Hour Div., USDOL v. Five Star Automatic Fire Protection LLC, ARB No. 2023-0051, ALJ No. 2019-DBA-00004 (ARB Aug. 25, 2025), the ARB affirmed the D. & O. in part and vacated and remanded in part.

Respondent worked as a subcontractor installing a fire protection system in the medical clinic at Holloman Air Force Base in Otero County, New Mexico. Both the contract and subcontract were subject to the DBA as well as a Collective Bargaining Agreement (CBA).

Respondent has three categories of sprinkler fitting employees based on their skills and experience, which include laborers, who are new hires who are inexperienced and work under supervision, supervisors or journeyman sprinkler fitters, and apprentices. The Wage Determination did not contain a sprinkler fitter job classification. The closest classification was the pipefitter classification, with a prevailing wage rate of $31.14 per hour and $12.42 per hour in fringe benefits. Although the Wage Determination contained a prevailing wage rate for common laborers, at $13.61 per hour in wages and $3.89 in fringe benefits, the CBA did not include a common laborer position.

From June 5, 2016, to August 13, 2017, Respondent assigned four employees to work on the project, which included Adrian Cabral, a journeyman sprinkler fitter and foreman who was paid under the pipefitter job classification, and three general laborers: Jesus Torres, Christopher Garcia, and Miguel Garcia.

In October 2017, the WHD began investigating Respondent for the period of June 5, 2016, to August 13, 2017. On August 1, 2018, the WHD issued a Notice of Determination finding that Respondent misclassified the work that Torres and the Garcias performed and ordered Respondent to pay $71,285.49 in back wages and be debarred.

Respondent objected and requested a hearing before an ALJ. A hearing was held across February 23-25, 2021; April 14-16, 2021; and April 30, 2021, at which eleven witnesses testified.

On August 4, 2023, the ALJ issued a D. & O. finding that Respondent misclassified Complainants' positions and failed to pay them prevailing wages and benefits in violation of the DBA. The ALJ ordered Respondent to pay Complainants $71,285.49 back wages and be debarred for three years.

JOB MISCLASSIFICATION; INCORRECT WAGE RATE

The DBA requires the payment of locally prevailing wage rates and fringe benefits to laborers and mechanics working on Federal contracts in excess of $2,000 for the construction, alteration, or repair of public buildings and public works. The DBA is "a minimum wage law designed for the benefit of construction workers." The purpose of the DBA is "to protect local wage standards by preventing contractors from basing their bids on wages lower than those prevailing in the area." To determine the prevailing wage, the WHD conducts a prevailing wage survey program in the area in which the work is to be performed and derives DBA prevailing wage rates from survey information voluntarily provided by responding contractors, contractors' associations, labor organizations, public officials, collective bargaining agreements, and other interested parties.

When an employer is alleged to have not paid employees for the hours worked, the ARB applies a burden-shifting framework. The WHD bears the initial burden of proving that employees performed work on the DBA project for which they were improperly compensated. To satisfy its burden, the WHD must: (1) show that employees performed work for which they were improperly compensated, and (2) produce "sufficient evidence to show that the amount and extent of that work as a matter of just and reasonable inference." Once WHD has satisfied its burden, the burden shifts to the employer to demonstrate either the precise number of hours worked or to present evidence sufficient to negate "the reasonableness of the inference to be drawn from the [WHD]'s evidence." To satisfy its burden, the employer must submit evidence that "(1) is based on individualized records[ ] and (2) fully accounts for the work hours in question, consistent with the project as a whole." If the employer fails to carry this burden, employees may be awarded damages, even if the amount of such damages is approximate.

The ARB found that Respondent misclassified Claimants' position. Here, the project was covered by a CBA. Although the Wage Determination included a general laborer position, the CBA did not. Rather, the CBA included "utility worker" and "pipefitter" classifications. The "utility worker" position was limited to a period of six months, could not include employees who were learning a trade, and was limited to only general tasks related to the pipe trade, such as truck driving, picking up and delivering materials, and removing scrap pipe. Utility workers also could not be used to replace apprentices. In contrast, the CBA's "pipefitter" classification covered both journeymen and apprentices who perform the following tasks: "unloading, carrying, and organizing pipes and materials; using blueprints or plans; preparing and installing hangers; installing pipe; using a power machine; cutting, grooving pipe, and threading pipe; installing brackets for sprinkler heads and sprinkler heads; hydrostatic testing; caulking; installing escutcheons; and cleaning." The ARB agreed with the ALJ that the work the Complainants performed fell into the "pipefitter" classification. The Wage Determination did not contain a "sprinkler fitter" job classification and the "pipefitter" classification was the most similar job classification.

As such, the ARB found that WHD satisfied its initial burden and the burden shifted to Respondent to demonstrate either the precise number of hours worked or to present evidence sufficient to negate "the reasonableness of the inference to be drawn from the [WHD]'s evidence." Notably, Respondent had not challenged the calculation of back wages. The ARB concluded that WHD's calculation of back wages was reasonable, and affirmed the ALJ's order that Respondent pay Complainants $71,285.4 in back wages.

DEBARMENT; DUTY OF EXPLANANTION

Whenever a contractor or subcontractor is found to have disregarded their obligations to workers or subcontractors under the Wage Determination, such contractor, subcontractor, or responsible officer will be debarred for a period of three years. Once grounds for debarment have been established, the three-year period is mandatory without consideration of mitigating factors or extraordinary circumstances. Violations of the DBA by themselves do not constitute disregard of an employer's obligations within the meaning of the law. To support debarment, the evidence must establish a level of culpability beyond negligence. Disregard of DBA obligations must involve some element of intent.

The ALJ acknowledged that Respondent had a clean history and cooperated in the investigation. However, the ALJ found these were "matters in extenuation and mitigation rather than relevant to the level of negligence related to the misclassification." The ALJ concluded that three factors supported "at least gross negligence or willful blindness" that justified debarment: (1) Respondent's preexisting familiarity with the DBA, (2) Complainants' signing into work with the incorrect classification, and (3) Cabral's instruction to Complainants to drop their questions about their pay rate.

The ARB found that the ALJ did not fulfill his duty of explanation in finding that Respondent acted in gross negligence to justify a three-year debarment. An ALJ has a duty to adequately explain why he credited certain evidence and discredited other evidence. An ALJ need not address every aspect of a party's claim at length and in detail, but the ALJ must explain the relevant evidence in a manner that allows the ARB to understand what the ALJ did and why he did it.

The ARB found that the ALJ failed to adequately explain why the aforementioned three factors supported debarment. First, the ARB found that the ALJ failed to connect Respondent's familiarity with the DBA with gross negligence or willful blindness. While an intentional failure to look at the law could support a finding of gross negligence or willful blindness, the ALJ notably did not make such a finding. Without a more thorough analysis, the ARB could not find that this factor supported gross negligence or willful blindness.

Regarding the ALJ's second factor, the ARB found that it was unclear whether Respondent directed Claimants to sign-in as apprentices. Although the ALJ noted WHD's argument that Respondent directed Claimants to sign-in as apprentices, the ALJ did not indicate whether he found this. In addition, the record also contained conflicting testimony regarding whether Respondent directed Claimants to sign-in as apprentices that the ALJ did not resolve. Based on that discrepancy, the ARB found that it could not determine Respondent's intent and thus could not conclude whether Complainants signing-in as apprentices rose to the level of gross negligence or willful blindness.

Regarding the ALJ's third factor, the ARB found that the ALJ failed to discuss the factual circumstances surrounding the claim that Cabral warned the Garcias that taking the matter of their pay rates to Cobain could get them taken off the job and failed to indicate what evidence he considered when reaching this conclusion apart from citing WHD's assertion. Notably, one of WHD's transcript citations in its post-hearing brief before OALJ was incorrect. In addition, the record contained conflicting testimony that the ALJ failed to resolve. Thus, the ARB concluded that it was unclear what Respondent's intent was and whether this claim supported a finding of gross negligence or willful blindness.

Accordingly, the ARB affirmed the ALJ's finding that Respondent violated the DBA by misclassifying Complainants and that Respondent owed Complainants $71,285.49 in back wages, vacated the ALJ's order that Respondent be debarred for three years, and remanded for further consideration.

Rashad v. Ryder Integrated Logistics, Inc., ARB No. 2025-0047, ALJ No. 2025-STA-00039 (ARB Aug. 14, 2025) (Decision and Order of Remand)

STAA; MAILING OSHA FINDINGS; TIMELINESS OF OBJECTIONS TO OSHA FINDINGS; LACHES; REMAND

In Rashad v. Ryder Integrated Logistics, Inc., ARB No. 2025-0047, ALJ No. 2025-STA-00039 (ARB Aug. 14, 2025), the ARB vacated the ALJ's D. & O. and remanded for further proceedings consistent with its opinion.

In 2021, Complainant filed a STAA complaint against Respondent. On October 27, 2021, OSHA issued a Dismissal Letter. The Dismissal Letter noted that "Respondent and Complainant have 30 days from the receipt of these Findings to file objections and to request a hearing before an" ALJ. OSHA addressed the Dismissal letter to Complainant, listing his name and address.

In January 2025, over three years after Complainant filed his STAA complaint, Complainant called OSHA and claimed that he never received a copy of the Dismissal Letter. On January 16, 2025, OSHA e-mailed Complainant to follow up on his phone call. In the OSHA E-mail, OSHA attached the Dismissal Letter and stated "[w]e apologize if your client previously received this." OSHA also noted in the e-mail that "[u]pon review and based in part on the length of time since we made our determination, we are unable to show that he did receive a copy of the Secretary's Findings." Finally, OSHA noted in the e-mail that "we are sending out these findings with the understanding that Complainant never received them, and that Complainant and Respondent have 30 days to appeal" to OALJ. On January 17, 2025, Complained filed objections to OSHA's Dismissal Letter of October 27, 2021.

On March 11, 2025, Respondent filed a motion to dismiss the case for untimeliness. On March 25, 2025, the ALJ issued a D. & O., dismissing the claim and finding that OSHA's Dismissal Letter remained the final decision of the Secretary of Labor.

First, the ALJ found that Complainant's objections to the OSHA Dismissal Letter were untimely. In support, the ALJ found that the "record shows that OSHA mailed Complainant the original dismissal in 2021 to his address on file." Second, the ALJ also found that, even if Complainant did not receive the Dismissal Letter, Complainant's claim was barred by the doctrine of laches. Specifically, Complainant had not exercised due diligence to litigate his claim and Respondent would be greatly prejudiced by the Complainant's renewed pursuit of the claim after three years.

TIMELINESS OF OBJECTIONS; LACHES; REMAND

On appeal, the ARB found that the ALJ did not adequately analyze certain evidence when it was found that Complainant's objections were untimely and "barred by the doctrine of laches." Accordingly, the ARB remanded to the ALJ.

After investigating a complaint, OSHA provides its findings to the parties, and the parties have 30 days from receipt to file objections. STAA's implementing regulations require that OSHA's findings "will be sent by means that allow OSHA to confirm delivery to all parties of record (and each party's legal counsel if the party is represented by counsel)."

The ALJ found that Complainant's objections to the Dismissal Letter were untimely. However, the ALJ failed to sufficiently evaluate the January 16, 2025, OSHA E-mail to Complainant, which raised questions about whether OSHA mailed Complainant the Dismissal Letter. The ALJ neglected to properly address how the OSHA E-mail stated that "[u]pon review and based in part on the length of time since we made our determination, we are unable to show that he did receive a copy of the Secretary's Findings." Given that the regulations require OSHA to send the findings by "means that allow OSHA to confirm delivery to all parties of record," the ARB found it noteworthy that OSHA acknowledged that it could not determine whether Complainant had received the Dismissal Letter. The ARB remanded to the ALJ to sufficiently explain how the evidence supports a conclusion that OSHA mailed the Dismissal Letter to Complainant.

Furthermore, if the ALJ finds that Complainant's objections were timely raised, the ARB also remanded for further consideration of the ALJ's finding that the claim is "barred by the doctrine of laches." Laches "requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." The D. & O. provided minimal examination and analysis of the evidence to reach its laches findings. Given that laches is a fact-sensitive inquiry, the ARB found that the ALJ did not sufficiently evaluate the evidence in its laches' ruling.

Accordingly, the ARB vacated the ALJ's D. & O. and remanded for further proceedings consistent with its opinion.

Ahntech, Inc. v. Administrator, Wage and Hour Div., USDOL, ARB No. 2025-0067 (ARB Aug. 14, 2025) (Order Dismissing Petition for Review Without Prejudice)

ORDER OF DISMISSAL; COMPLAINANT FILED MOTION TO WITHDRAW PETITION FOR REVIEW FOR LACK OF JURISDICTION

In Ahntech, Inc. v. Administrator, Wage and Hour Div., USDOL, ARB No. 2025-0067 (ARB Aug. 14, 2025), the ARB dismissed Complainant's petition for review because Complainant filed a Motion to Withdraw Petition for Review Without Prejudice.

On June 17, 2025, Complainant filed a Petition for Review with the ARB requesting a price adjustment for a contract administered by the General Service Administration (GSA). Complainant initially requested a price adjustment from the GSA, which was denied, and then submitted a request for a final decision by the Wage and Hour Division (WHD). Complainant alleged that it sent WHD several emails requesting a decision, but WHD did not respond and thus, elected to file a Petition for Review with the ARB "for a definitive ruling on this matter."

The Board only has jurisdiction over "final" decisions issued by the agency under the SCA. Because Complainant conceded that it had not received a response from WHD, the ARB issued an Order to Show Cause directing Complainant to explain why the Board should not dismiss the appeal for lack of jurisdiction.

On August 4, 2025, Complainant filed a Motion to Withdraw Petition for Review Without Prejudice. In the Motion, Complainant conceded that it did not receive a final decision or ruling from WHD, and therefore, moved to withdraw its petition as the matter was not yet ripe for the ARB's review. Accordingly, the ARB granted Complainant's Motion and Dismissed the Petition for Review without prejudice.

Iwaseczko v. Teton County Weed & Pest Control District, ARB No. 2022-0059, ALJ Nos. 2018-ACA-00001, 2019-ACA-00002 (ARB Aug. 14, 2025) (Decision and Order)

ACA PROTECTED ACTIVITY; CONTRIBUTING FACTOR; ALJ DISCRETION LIMITING DISCOVERY

In Iwaseczko v. Teton County Weed & Pest Control District, ARB No. 2022-0059, ALJ Nos. 2018-ACA-00001, 2019-ACA-00002 (ARB Aug. 14, 2025), the ARB affirmed the ALJ's D. & O. and denied Complainants' Petition for Review.

Teton County Weed & Pest Control (TCWP) is a public entity governed by a five-member volunteer board. It operates with a combination of full-time, part-time, and seasonal employees, many of whom are housed in employer-provided accommodations. The organization maintains a Policy Handbook that outlines employment standards and benefits, including eligibility criteria for health insurance. Notably, TCWP excludes seasonal employees from eligibility for such benefits, unless otherwise specified, and distinguishes between full-time, part-time, and seasonal staff.

Thomas Spatafore, a Native American seasonal employee, worked for TCWP each season from 2008 to 2017 and resided in employer-provided housing during that time. Throughout his employment, Spatafore received positive performance evaluations until the latter part of the 2017 season. Tensions began to escalate in 2017, when Spatafore was advised he would need to vacate his private housing unit to accommodate a married couple under a newly adopted housing policy. Around the same time, Spatafore requested reclassification as a part-time, year-round employee, a request TCWP denied. Spatafore began raising internal complaints concerning perceived discriminatory hiring and employment practices. These complaints were formally conveyed to supervisors, the TCWP Board, and other administrative officials from August through November 2017.

Spatafore further alleged that his 2017 performance evaluation, which contained lower marks in areas related to attitude and task completion, was issued in retaliation for his complaints. In November of 2017, Spatafore began investigating TCWP's health benefits practices and potential disparities in benefits allocation by contacting various agencies and Blue Cross Blue Shield of Wyoming (BCBSWy). One such disparity involved a white part-time employee who had retained health benefits under circumstances that Spatafore believed were similar to his own. On November 9, 2017, Respondent scheduled a special executive session for November 10 to discuss Spatafore's employment. Later that day, Spatafore sent an email to Respondent expressing concerns about not receiving health care and retirement benefits, despite meeting eligibility requirements for the past seven years. The email did not explicitly connect Spatafore's lack of health benefits to racial or ethnic discrimination. Instead, Spatafore mentioned past discrimination in promotions and alluded to current discriminatory practices in promotions.

On November 10, 2017, following a special executive session, TCWP issued Spatafore a 30-day eviction notice from employee housing, citing his conduct, grievances, and potential for litigation.

In January 2018, Spatafore publicly raised concerns before the Teton County Commissioners regarding TCWP's employment and benefits practices, specifically invoking Section 1557 of the ACA, which prohibits discrimination in health programs and activities. Shortly thereafter, he was informed by TCWP that he would not be rehired for the 2018 season due to the negative 2017 performance review. On March 22, 2018, Spatafore filed a whistleblower complaint with OSHA under the ACA's employee protection provision. He alleged retaliation in the form of a downgraded performance evaluation, eviction from employee housing, and non-rehire, all in response to his complaints regarding discriminatory benefit practices. OSHA's investigation concluded that Spatafore had not engaged in protected activity under the ACA, a finding Spatafore appealed to the OALJ.

The second complainant, Marta Iwaseczko, served as Assistant Supervisor of the Mosquito Program at TCWP from 2005 until her termination in December 2017. Iwaseczko had no prior disciplinary history and had maintained a strong performance record. Iwaseczko and Spatafore were in a romantic relationship, which was known or suspected by other TCWP staff. Beginning in 2017, Iwaseczko began forwarding internal TCWP emails—including those involving personnel matters, benefit policies, and job descriptions—to her personal account, Spatafore, and another employee. These emails, some of which concerned retirement eligibility and employee classification, were later deemed sensitive internal information.

TCWP became aware of Iwaseczko's actions in late 2017 and conducted an internal investigation with the assistance of IT staff. Upon confirming the email disclosures, the TCWP Board convened an executive session in December 2017 and concluded that Iwaseczko's actions had breached confidentiality and eroded trust. Although initially offered a voluntary separation agreement with severance and continued health coverage, Iwaseczko failed to sign the agreement by the deadline. She was ultimately terminated retroactive to December 7, 2017. Iwaseczko stated that her intention was to help expose discriminatory practices at TCWP, particularly with respect to benefit disparities.

On January 23, 2018, Iwaseczko filed a separate whistleblower complaint with OSHA under the ACA, alleging she was terminated in retaliation for assisting Spatafore with his protected activity. OSHA issued findings in May 2018 determining that Iwaseczko also had not engaged in protected activity. Like Spatafore, she filed objections and requested a hearing before the OALJ.

The two cases were consolidated, and a hearing was held before the OALJ on July 22 and 23, 2019. After post-hearing briefing, the ALJ issued a D. & O. dismissing both complaints. The ALJ concluded that neither Spatafore nor Iwaseczko had engaged in protected activity under the ACA's whistleblower provision, and that there was insufficient evidence of a causal connection between their complaints and any adverse employment action. Complainants subsequently petitioned the ARB.

TITLE VII NOT APPLICABLE TO THE ACA's DISTINCT STATUTORY LANGUAGE

Section 1558 of the ACA prohibits employers from retaliating against employees for engaging in protected activity, such as raising concerns about ACA violations. While Complainants relied on Title VII caselaw in support of their arguments, the ARB held that Section 1558 is rooted in a different statutory framework. Specifically, the ARB stated that Section 1558 aligns more closely with whistleblower laws like the CPSIA and STAA. Although the ARB recognized that there is some conceptual overlap with Title VII, Section 1558 has distinct statutory language and intent. The ARB advised that it would interpret the ACA based on other whistleblower precedent rather than Title VII's retaliation framework.

PROCEEDINGS UNDER THE ACA; NO PROCEEDINGS OCCURRED OR WERE ABOUT TO OCCUR; EVOLUTION OF THE TERM "PROCEEDINGS"

The ARB concluded that the ALJ correctly found that Complainants were not protected under subsections (a)(3) and (a)(4) of the ACA, which safeguard employees who testify, assist, or are about to participate in proceedings concerning ACA violations. Complainants argued before the ALJ and ARB that their actions fell within these protections by analogizing to Title VII's broader "participation" and "opposition" framework. However, the ALJ determined, and the ARB affirmed, that no qualifying ACA proceedings had occurred before the OSHA complaints that were filed in January and March 2018. Thus, the alleged protected activities prior to the OSHA complaints could not fall under (a)(3) or (a)(4).

In denying Complainants' argument, the ARB examined the evolution of the term "proceedings" within comparable whistleblower statutes to assist in its interpretation. The ARB noted that courts historically grappled with the scope of protection. For example, in Brown & Root, the Fifth Circuit Court of Appeals limited "proceedings" to formal legal actions, while in Passaic Valley, the Third Circuit Court of Appeals interpreted "proceedings" to include internal complaints. The ARB emphasized that Congress ultimately clarified this distinction in later legislation, expressly separating protections for internal complaints from those tied to formal proceedings. The ARB highlighted these distinctions in statutes like AIR21 and CPSIA that reflect such structure. Therefore, the ARB concluded that no such proceedings occurred before Complainants filed their respective OSHA complaints.

SPATAFORE'S PROTECTED CONDUCT UNDER § 1558 (A)(2), (5); SUBSTANTIAL EVIDENCE IN THE RECORD SUPPORTED THE ALJ'S CONCLUSION; THE ACA IS NOT A GENERAL REMEDY FOR EMPLOYMENT GRIEVANCES UNRELATED TO HEALTH INSURANCE AND HEALTHCARE REFORMS; PERCEIVED PROTECTED ACTIVITY NOT PRESENT

The ARB next examined Complainants' arguments pertaining to Spatafore's activities under (a)(2) and (a)(5), which safeguard employees who provide information or complain about, or refuse to participate in, conduct they reasonably believe violates Title I of the ACA.

First, the ARB focused on Spatafore's activities from October 2017 through January 2018 and generally observed that many of his complaints did not qualify under (a)(2) as they were not directed to protected entities, such as employers, the federal government, or state attorneys general. The ARB also noted that Spatafore's claims largely concerned discrimination in hiring and promotion rather than denial of healthcare benefits based on race or national origin. Although Spatafore later linked his lack of healthcare benefits to his Native American identity, the ARB agreed with the ALJ that the belief was not objectively reasonable because it was based on isolated and non-comparable circumstances involving another employee's temporary health benefits.

Second the ARB specifically examined Spatafore's November 9, 2017 email to TCWP. The ARB determined that the ALJ's finding that the November 9 email was not protected under (a)(2) or (a)(5) and was supported by substantial evidence because the email focused on his classification as a seasonal employee rather than alleging discrimination based on race or national origin. The ARB emphasized that the ACA requires the complainant to communicate a reasonable belief of a violation to the employer or appropriate authority, and Spatafore's email failed to meet this standard. Even if the subjective belief existed, it was not objectively reasonable given the employer's clear policy excluding seasonal employees from benefits.

Similarly, the ARB determined that the ALJ's finding that Spatafore's January 2018 public statements to county commissioners and the TCWP Board were not protected under (a)(2) and (a)(5) and was supported by substantial evidence because they did not demonstrate an objectively reasonable belief that a violation of § 1557 occurred. The ARB concluded that Spatafore's complaints were more generalized grievances and lacked clear allegations tying denial of benefits to race or national origin discrimination.

Third, the ARB reviewed Spatafore's information-gathering efforts, including inquiries to the county human resources director, BCBSWy, and the state insurance department. The ARB held that these activities were not protected under (a)(2) because these entities are not covered under that subsection. The ARB then noted that the ALJ tentatively considered these activities protected under (a)(5) as preliminary information gathering. The ARB expressed concerns over this designation as it interpreted protection under (a)(5) to be generally reserved for employees refusing to participate in perceived violations, not for initial investigation or inquiry. Ultimately, the ARB opted not to resolve the boundaries of (a)(5) protection or the ALJ's conclusion on this matter as it determined that Spatafore failed to show that these three protected activities were a contributing factor in the alleged adverse actions at issue.

Fourth, the ARB addressed the theory that TCWP perceived Spatafore as a litigation risk due to his search for legal representation, which Complainants argued amounted to "perceived protected activity" or anticipatory retaliation. The ARB rejected this notion, emphasizing the need for concrete evidence that the employer believed the employee was engaging in protected activity. The ARB concluded that generalized concerns about potential litigation do not meet the threshold for protection under the ACA, especially since Spatafore's earlier complaints were unrelated to healthcare benefit discrimination.

IWASECZKO'S PROTECTED CONDUCT UNDER § 1558 (A)(5); SUBSTANTIAL EVIDENCE IN THE RECORD SUPPORTED THE ALJ'S CONCLUSION

The ARB then examined Complainants' arguments pertaining to Iwaseczko's activities under (a)(5). First, the ARB held that the ALJ's finding that Iwaseczko's silence during a September 2017 phone call with her supervisor did not constitute opposition to any unlawful practice and was supported by substantial evidence. Although Iwaseczko claimed that her silence was a refusal to participate in retaliation against a colleague, the ARB reviewed the context of the call and determined that it did not involve any directive to violate the law, and her silence was seen merely as a personal choice, not a legally significant act.

Second, the ARB affirmed the ALJ's conclusion that Iwaseczko's act of forwarding internal emails, including confidential personnel information, to her personal account and to others was not protected because she lacked an objectively reasonable belief that TCWP was violating the law. The ALJ and ARB determined that Iwaseckzo's actions were viewed as unjustified, especially given that she had previously forwarded sensitive information unrelated to any alleged legal violation, which further undermined her claim.

Third, the ARB held the ALJ's finding that Iwaseczko's statement during a December 2017 meeting, in which she mentioned disparate treatment, did not reflect a reasonable belief that TCWP was engaging in discrimination prohibited under the ACA was supported by substantial evidence. The ARB concluded that an employee with Iwaseczko's experience and access to relevant facts would have understood that TCWP's decision not to provide health benefits to seasonal employees was financially motivated and not based on race or national origin.

CONTRIBUTING FACTOR; SUBSTANTIAL EVIDENCE IN THE RECORD SUPPORTED THE ALJ'S CONCLUSION

The ARB affirmed the ALJ's findings that neither Spatafore nor Iwaseczko demonstrated that their alleged protected activities were contributing factors in the adverse actions taken against them. Under the ACA, a complainant must show by a preponderance of the evidence that protected activity contributed to the employer's decision, which can be established through circumstantial evidence. However, the ALJ found, and the ARB agreed, that Spatafore's protected activities—including his communications with various agencies—did not influence TCWP's decisions to give him a negative performance evaluation, evict him, or decline to rehire him. The ARB reasoned that the negative performance review preceded any protected activity, the eviction occurred independently of his complaints and without TCWP Board's knowledge of them, and the decision not to rehire him was based on his prior eviction, poor performance, and conduct, rather than any ACA-related actions. Moreover, the ARB stated that the record reflected that Spatafore's supervisors had already assumed he would not return and did not consider his ACA inquiries in their decision-making process.

With respect to Iwaseczko, the ARB upheld the ALJ's determination that even if she had engaged in protected activity—which the ALJ ultimately found she had not—there was no evidence that any such activity was a contributing factor in her termination or the offer of a separation agreement. Rather, the ALJ found that the decision to terminate Iwaseczko was driven by TCWP's belief that she had breached its trust by forwarding confidential internal emails to outside individuals, which the ARB determined was supported by substantial evidence. The ARB further held that the employer's response was based on its perceived violation of company policy, regardless of whether the policy was actually violated. The ARB reasoned that the evidence showed that Respondent was concerned with Iwaseczko's honesty, the unauthorized sharing of sensitive information, and a resulting loss of trust, all of which led to the unanimous decision to end her employment.

ALJ EVIDENTIARY RULINGS; THE ALJ DID NOT ABUSE HIS DISCRETION IN LIMITING DISCOVERY

The ARB concluded that the ALJ did not abuse his discretion in denying the Complainants' motion to compel discovery. Complainants' motion sought the identity of an attorney who allegedly disclosed that Spatafore had applied for legal representation, as well as electronically stored information (ESI) from TCWP Board members after December 31, 2017. The Complainants argued that the ESI could reveal potential animus from the TCWP Board in response to Complainants filing their respective OSHA complaints. However, the ARB found these arguments speculative and unsupported. The ARB stated that the identity of the attorney was unlikely to have changed the outcome, and the Complainants themselves should have known or pursued any attorneys Spatafore consulted if they believed those individuals had relevant information. Regarding the ESI, the ARB found it irrelevant because the OSHA complaints were filed after the adverse employment actions had already occurred. Any animus expressed by the TCWP Board after the fact could not have contributed to decisions made earlier. As such, the ARB held that the ALJ's decision to deny the motion was not arbitrary and did not constitute an abuse of discretion.

Accordingly, the ARB affirmed the ALJ's D. & O. and denied Complainants' Petition.

CONCURRENCE; CONCERNS ABOUT THE NEGATIVE PERFORMANCE EVALUATION

One ARB Member concurred with the decision's result and analysis, finding no causal link between the negative performance evaluation and any protected activity under the ACA. However, the Member expressed concern about the September 28, 2017 evaluation, noting it sharply contrasted with Spatafore's prior strong performance history and seemed retaliatory given the timing. The Member noted that between March and September 2017, Spatafore raised multiple legitimate employment and discrimination concerns, including job classification, hiring practices, and past disciplinary actions. Although these issues fall outside the ARB's jurisdiction under the ACA, the Member suggested the negative evaluation may have been in response to Spatafore's internal complaints.

Semper Tek, Inc. v. Administrator, Wage and Hour Div., USDOL, ARB No. 2025-0071 (ARB Aug. 12, 2025) (Order Dismissing Petition for Review Without Prejudice)

ORDER OF DISMISSAL; PARTIES FILED JOINT MOTION TO DISMISS FOR LACK OF JURISDICTION

In Semper Tek, Inc. v. Administrator, Wage and Hour Div., USDOL, ARB No. 2025-0071 (ARB Aug. 12, 2025), the ARB dismissed the Petition for Review without prejudice and remanded the case to WHD for a final ruling upon the joint motion of the parties.

On July 15, 2025, Complainant Semper Tek, Inc. filed a Petition for Review with the ARB, seeking review of two conformance decisions issued by the WHD, Branch of Construction Wage Determinations on June 16, 2025, pursuant to 29 C.F.R. § 5.5(a)(1)(iii).

The Board only has jurisdiction over "final decisions" issued by the agency under the DBA. The conformance decisions attached to Complainant's Petition for Review did not appear to be "final decisions" of the WHD. Therefore, on July 28, 2025, the ARB issued an Order to Show Cause, ordering Complainant to explain why the Board should not dismiss the appeal for lack of jurisdiction.

On August 5, 2025, Complainant and Respondent filed a Joint Motion to Dismiss, requesting dismissal without prejudice and remand for issuance of a final decision. The parties claimed that the Board did not have jurisdiction to hear the appeal at this time because the two conformance decisions were not "final decisions" of WHD, as required by 29 C.F.R. § 7.9(a). Accordingly, the ARB dismissed the Petition for Review without prejudice and remanded the case to WHD for a final ruling.

Kossen v. Asia Pacific Airlines, ARB No. 2023-0047, ALJ No. 2023-AIR-00001 (ARB Aug. 11, 2025) (Order Denying Reconsideration)

RECONSIDERATION; ARB WILL NOT RECONSIDER SAME ARGUMENTS MADE IN ORIGINAL APPEAL; NEW ARGUMENT CANNOT BE RAISED FOR THE FIRST TIME ON RECONSIDERATION

In Kossen v. Asia Pacific Airlines, ARB No. 2023-0047, ALJ No. 2023-AIR-00001 (ARB August 11, 2025), the ARB denied Complainant's request for reconsideration of the ARB's Decision and Order.

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 most of Complainant's arguments did not fall within any of the limited circumstances warranting reconsideration, but turned to Complainant's other arguments addressing temporal proximity, pretext, and deliberately withheld evidence.

First, Complainant argued that the ARB erred in finding that temporal proximity of four years and four months negates causation under AIR21 as it is contrary to the Supreme Court's holding in Murray v. UBS Secs., LLC. The ARB determined that Complainant misinterpreted the holding in Murray, as it did not discuss temporal proximity. Although Complainant misinterpreted Murray, the ARB agreed with Complainant's statement that tribunals should examine direct and circumstantial evidence to determine whether a complainant has established the contributing factor element. However, the ARB noted that when substantive evidence is not available, a tribunal may look to temporal proximity and find that a significant time gap between a protected activity and adverse action makes it unreasonable to infer causation. In the present case, the ARB determined there was no other substantive evidence for the ALJ to consider and on this information alone, the ALJ properly determined that the passage of four years and four months from Complainant's protected activity to the alleged adverse action, was too long to infer retaliation under AIR21. 

Second, Complainant averred that the ARB erred in not considering evidence highlighting Respondent's pretextual justifications for not rehiring him. The ARB disagreed and considered this argument waived as Complainant's filings before the ARB did not address the ALJ's conclusion pertaining to the re-hire claim.

Third, Complainant contended that the Supreme Court's decision in Glossip v. Oklahoma supports grounds for reconsideration. Specifically, Complainant claimed that "evidence relevant to FAA investigations was deliberately withheld or suppressed, possibly implicating opposing counsel in ethical violations by concealing evidence and knowingly introducing false testimony and documentation." Again, the ARB disagreed because Complainant's argument did not address how such evidence would have had any impact on the result in this case. Moreover, the ARB noted that Complainant's argument centered on alleged and speculative ethical violations by Respondent's attorney, which the ARB does not have the authority to investigate.

Accordingly, the ARB denied Complainant's request for reconsideration.

Lear v. GFL Environmental, ARB No. 2024-0045, ALJ No. 2023-STA-00061 (ARB Aug. 11, 2025) (Order Denying Reconsideration)

PETITION FOR REVIEW IN CIRCUIT COURT SUBSEQUENT TO FILING OF MOTION FOR RECONSIDERATION IN STAA MATTER; EXERCISE OF INHERENT AND IMPLIED AUTHORITY TO DECIDE MOTION

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 for discovery violations after finding the ALJ's dismissal was not the result of an abuse of her discretion pursuant to ARB and Eleventh Circuit precedent. 

Complainant filed a motion and an amended motion with the Board requesting reconsideration of the Board's May 19, 2025 Decision and Order. Complainant then filed a petition for review of the Board's decision with the Eleventh Circuit. The Board noted that the STAA and its implementing regulations did not limit or address the Board's ability to reconsider its decision in a STAA matter. The Board concluded that therefore it could exercise its inherent and implied authority to reconsider its prior decision.

The Board determined that as Complainant's motion and amended motion for reconsideration were filed within a reasonable time following its May 2025 Decision and Order, the motions tolled the appeal deadline and rendered the Decision and Order non-final.

NON-EXCLUSIVE GROUNDS FOR GRANTING RECONSIDERATION UNMET; NO OTHER BASIS FOR GRANTING RECONSIDERATION

The Board concluded the motions did not meet any of the four non-exclusive grounds for reconsidering its decision, which are whether the moving party has demonstrated: (i) material differences in fact or law from that presented to the Board of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the Board's decision; (iii) a change in the law after the Board's decision, and (iv) failure to consider material facts presented to the Board before its decision. The Board also found that Complainant's motions did not present any other basis for granting reconsideration. 

Johnson v. United Parcel Service, ARB No. 2025-0064, ALJ No. 2024-STA-00069 (ARB Aug. 8, 2025) (Decision and Order Dismissing Complainant's Petition as Untimely)

TIMELINESS; CASE DISMISSED WHERE PETITION FOR REVIEW WAS UNTIMELY

In Johnson v. United Parcel Service, ARB No. 2025-0064, ALJ No. 2024-STA-00069 (ARB Aug. 8, 2025), the ARB dismissed the case where Complainant's petition for review was untimely. An ALJ issued a D. & O. dismissing Complainant's complaint on March 21, 2025, for failure to prosecute. Pursuant to the applicable STAA regulation, 29 C.F.R. § 1978.110(a), a petition for review was due within 14 days after the date of the decision of the ALJ—i.e., by April 4, 2025. Complainant did not file a petition for review with the ARB until May 23, 2025. Respondent moved to dismiss.

Although the ARB recognized that the time to file a petition for review is subject to equitable modification, modification was not warranted in this case. The ALJ served the D. & O. on Complainant via email on April 4, 2025. Complainant stated that she did not see the D. & O. when it was first sent because she mistakenly assumed it was associated with one of her filings at the time. Complainant did not argue that Respondent misled her or that she raised the precise statutory claim in issue in the wrong forum. She also did not argue that Respondent's acts lulled her into foregoing prompt attempts to vindicate her rights. Thus, there were no qualifying grounds for equitable modification.

Mitchell v. Warren Paving, Inc., ARB No. 2024-0047, ALJ No. 2023-STA-00055 (ARB Aug. 7, 2025) (Decision and Order)

DISMISSAL OF COMPLAINT WITH PREJUDICE FOR DISCOVERY VIOLATIONS; NO ABUSE OF DISCRETION

In Mitchell v. Warren Paving, Inc., ARB No. 2024-0047, ALJ No. 2023-STA-00055 (ARB Aug. 7, 2025), the ARB affirmed the ALJ's dismissal of Complainant's STAA complaint with prejudice.

The ARB found that the ALJ had not abused his discretion in dismissing the complaint after Complainant failed to comply with discovery orders. The ARB applied the factors outlined in its recent decision in Keller v. Pittsburgh Baptist Church, ARB No. 2025-0008, ALJ No. 2023-TAX-00012 (ARB July 30, 2025). The ARB concluded that although the ALJ did not evaluate all the factors, altogether the factors which were evaluated (culpability, willfulness or bad faith, whether the party was warned in advance of the potential for dismissal for discovery non-compliance, the efficacy of less drastic sanctions, non-compliance with discovery orders, prejudice to the opposing party, and interference with the judicial process) strongly tipped the balance in favor of a determination that the ALJ acted within his discretion to sanction Complainant for his discovery violations via dismissal.