Secretarial and Administrative Review Board Decisions - August 2026

Administrative Review Board Decisions

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

Administrator, Wage and Hour Div., USDOL v. GoldStar Amusements, Inc., ARB Nos. 2024-0033, -0046, ALJ Nos. 2021-TNE-00027, -00028 (ARB Aug. 31, 2026) (Decision and Order)

VIOLATIONS OF THE INA AND H-2B REGULATIONS; BACK WAGES; CMPS

In Administrator, Wage and Hour Div., USDOL v. GoldStar Amusements, Inc., ARB Nos. 2024-0033, -0046, ALJ Nos. 2021-TNE-00027, -00028 (ARB Aug. 31, 2026), the ARB affirmed the ALJ's Decision and Order in part, vacated and modified in part, and vacated and remanded in part.

Respondent GoldStar operates carnivals and Respondent Lee's Concessions provides food and games at carnivals. Both Respondents have offices in Minnesota. Respondents operated seasonally and frequently, but not always, presented at the same shows. In 2016, GoldStar employed 29 H-2B workers and Lee's employed 34 H-2B workers. In 2017, GoldStar employed 38 H-2B workers and Lee's employed 35 H-2B workers. Respondents employed H-2B workers from the Republic of South Africa and U.S. workers.

During the Summer of 2017, the Administrator began investigating Respondents. On September 16, 2020, the WHD issued a Determination Letter, finding that Respondents committed six violations during the 2016 and 2017 seasons.

Respondents requested a hearing before an ALJ. With the ALJ's permission, the Administrator amended the Determination letter on two occasions. On October 25, 2021, the Administrator amended the Determination Letter to account for a recalculation of back wages and Civil Money Penalties (CMPs). On October 19, 2022, the Administrator amended the Determination Letter again to recalculate back wages for GoldStar to five workers for 2016 and 2017 to correct prior computational errors; removed Missouri state overtime premiums from the back wages owed under GoldStar's 2016 TEC and Lee's 2017 TEC to correct for instances where nine workers were erroneously double counted as working for both; and reduced CMPs assessed against GoldStar in 2016 and Lee's in 2017 to account for these reductions.

The ALJ held a hearing beginning on January 23, 2023, and resuming on July 5-11, 2023. On March 13, 2024, the ALJ issued a D. & O. finding that (1) Respondents did not violate the prohibition against preferential treatment to foreign workers, (2) Respondents failed to pay the prevailing wage in 2016 and 2017, (3) GoldStar did not substantially fail to comply with the periods of temporary need in 2016 and 2017 and Lee's did not substantially fail to comply with the periods of temporary need in 2016 but substantially failed to comply in 2017, (4) Respondents substantially failed to comply with the requirement to provide their workers with accurate earnings statements; (5) Respondents substantially failed to pay the outbound travel costs of H-2B workers in 2016 and 2017, and (6) Respondents substantially failed to pay the inbound travel costs of H-2B workers in 2016 and 2017. The ALJ ordered GoldStar to pay $98,254.57 in back wages and $32,516.00 in CMPs, ordered Lee's to pay $47,988.78 in back wages and $31,068.10 in CMPs, and directed the parties to confer and create a plan for implementing the ALJ's order. Both parties petitioned the ARB to review the D. & O.

RESPONDENTS VIOLATED THE INA AND THE H-2B REGULATIONS; IMPROPER WAGE RATE; FAILED TO PAY INBOUND AND OUTBOUND EXPENSES; FAILED TO PROVIDE WORKERS WITH ACCURATE EARNINGS STATEMENTS

Under the H-2B regulations, a violation is substantial if it is both willful and a significant deviation from the terms and conditions of the H-2B forms. Willfulness includes knowing violations or reckless disregard for whether conduct satisfies program requirements. Employers who sign H-2B certifications attest under penalty of perjury that they understand and will comply with program obligations. When employers fail to keep accurate records, damages may be determined under the burden-shifting framework of Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). Civil money penalties may be imposed for substantial failures or willful misrepresentations, and debarment may be imposed for up to five years based on the severity of violations.

The ARB rejected Respondents' argument that willfulness required specific subjective knowledge, explaining that the H-2B regulations define willfulness to include reckless disregard. Because both Respondents signed the TECs under penalty of perjury, the ARB found that they knew of their obligations and nonetheless disregarded them. Accordingly, the ARB affirmed the ALJ's findings that Respondents failed to pay proper wages, failed to pay required inbound and outbound transportation costs, failed to provide their workers with accurate earnings statements, and that Lee's Concessions failed to comply with the period of temporary need in 2017. The ARB affirmed the ALJ's finding that GoldStar did not violate the period of temporary need in 2016 and 2017 and that Lee's Concessions did not violate the period of temporary need in 2016.

RESPONDENTS DID VIOLATE THE PROHIBITION AGAINST GIVING H-2B WORKERS PREFERENTIAL TREATMENT

In 2016 and 2017, Respondents sought to hire H-2B workers for traveling carnival attendant positions. Respondents also had approximately ten trucks for which they needed drivers. Neither the recruitment ads nor the Job Orders for the traveling carnival attendant positions indicated that driving would be a potential job duty. Respondents did not recruit any workers, U.S. or foreign, whose job was to primarily drive trucks; they only hired traveling carnival attendants. In 2016, eighteen employees had CDLs, of which seven were H-2B workers and eleven were U.S. workers. The record does not indicate what percentage of trucks were driven by U.S. workers as compared to H-2B workers. GoldStar owner Michael Featherston testified that workers could earn extra wages per week for driving and some workers testified that they were told they would receive a driving bonus at the end of the season. However, the record did not support this. Only two workers received a driving bonus at the end of the season amounting to $1,250 and $1,850, and no worker received extra pay on a weekly basis.

The ALJ determined that Respondents did not violate the prohibition against giving H-2B workers preferential treatment for the failure to disclose the potential to earn extra pay for driving trucks. The ALJ found, in part, that the Administrator did not prove that there were any U.S. workers who did not pursue the minimum wage traveling carnival attendant position because of the failure to disclose the possible extra pay for driving duties in the Job Order, and was not persuaded that a more accurate description would have enticed U.S. workers to apply.

The ARB disagreed with the ALJ's reasoning. The ALJ erred in finding that the Administrator must prove that there were U.S. workers who were deterred from applying for the position because of Respondents' failure to include the driving bonus in the Job Order and recruitment materials to establish harm. Rather, U.S. workers are presumed to be harmed when H-2B workers are offered better pay and/or benefits than U.S. workers. The ARB also found that the ALJ's opinion that U.S. truck drivers were unlikely to be interested in the job opportunity was both speculative and contrary to his finding that eleven of Respondents' U.S. workers had CDLs.

While the ARB disagreed with the ALJ's reasoning, the ARB agreed that Respondents' failure was not substantial. The ARB distinguished this case from the ARB's recent decision in Adm'r, Wage & Hour Div., U.S. Dep't of Lab. v. Ace Amusements, ARB Nos. 2024-0019, -0036, ALJ Nos. 2022-TNE-00015, -00016, slip op. at 4 (ARB June 9, 2026), in which the ARB held that the employer, who also operated a traveling carnival, substantially failed to comply with the H-2B program's requirements for failing to disclose driving as a job duty and the potential to earn more. There, the employer paid every driver an extra $50 per week, the employer had specifically recruited foreign workers with CDLs, at least one H-2B worker was under the impression that he was hired exclusively as a driver, and drivers spent approximately twenty to thirty percent of their time driving.

However, in this matter, the record did not show that any driver received extra pay on a weekly basis for driving in either 2016 or 2017. As for bonuses, in 2016, only two out of the eighteen workers with CDLs received a driving bonus at the end of the season and no worker received a driving bonus in 2017. Respondents also did not recruit any H-2B worker to work exclusively as a driver and there was no evidence that Respondents directed driving opportunities, and therefore a potential bonus, toward H-2B workers over U.S. workers.

Further, the record did not show the amount of time workers spent driving. Workers who drove trucks also performed other duties of a traveling carnival attendant. Unlike in Ace Amusements, where driving duties were routine and represented a more significant portion of workers' overall job duties, here, the Administrator did not show that driving duties were routine and significant enough that Respondents were obligated to include it in the advertisements. While there was some testimony from workers who drove, driving also included convenience travel for trips to grocery stores and laundromats. Thus, the ARB determined that the gravity of the violation was low. The ARB also determined that Respondents had no previous history of violations under the H-2B program and did not achieve a financial gain. Thus, the ARB concluded that Respondents' failure to disclose the potential to earn extra pay from driving was not a significant deviation from the terms and conditions of the H-2B program's requirements.

The ARB also affirmed the ALJ's finding that Respondents did not substantially fail to comply with the prohibition against giving H-2B workers preferential treatment by allowing two workers to start work later in the season. In 2017, Respondents allowed two H-2B workers to start in July, despite the season beginning in February, because those workers had to fulfill a prior commitment. However, the ARB found that Respondents' allowing two H-2B workers to start late did not arise to a significant deviation because Respondents did not have a prior history of violating the H-2B program's requirements, only two workers were affected, the workers did not financially benefit from arriving late, and the gravity of the violation was low.

REMANDED TO THE ALJ TO RECALCULATE BACK WAGES; CMPS

If the Administrator determines an employer has violated the requirements of the H-2B program, the Administrator may assess remedies, including the recovery of unpaid wages, CMPs, and debarment from the H-2B program.

The Administrator may assess a CMP for each violation that is either a willful misrepresentation of a material fact; a substantial failure to meet any of the terms and conditions of the H-2B forms; or a willful misrepresentation of a material fact to the Department of State during the H-2B nonimmigrant visa application process. "Each such violation involving the failure to pay an individual worker properly or to honor the terms or conditions of [the aforementioned H-2B forms] constitutes a separate violation."

For violations related to wages, impermissible deductions, or prohibited fees and expenses, Section 503.23(b) provides that the Administrator may assess CMPs "that are equal to the difference between the amount that should have been paid and the amount that actually was paid to such worker(s)," subject to a maximum of $12,383. Back wages further the purposes of the H-2B program by reducing the employer's incentive to bypass U.S. workers in order to hire H-2B workers who are more easily exploited.

Respondents contended that the ALJ failed to credit the cost of housing paid for mobile housing for their workers as well as the cost of convenience travel. The ARB disagreed. Costs incurred for facilities that are primarily for the benefit or convenience of an employer will not be recognized and may not be charged to workers. As the preamble to the 2015 Rule states, "housing that is provided by employers with a need for a mobile workforce, such as those in the carnival or forestry industries where workers are in an area for a short period of time, need to be available to work immediately, and may not be able to procure temporary housing easily, is primarily for the employer's benefit and convenience and cannot be charged to the workers." Thus, Respondents were not entitled to credits for their mobile housing.

Similarly, the ARB determined that Respondents were not entitled to credits for convenience travel. Even if this travel primarily benefited workers, an employer is required to maintain records showing the wage deductions on a workweek basis. Here, Respondents did not keep any records of who took convenience travel, where they went, or how many trips they took. Thus, the ARB found that Respondents were not entitled to credits for the cost of local convenience travel.

Respondents also contended that the ALJ failed to address state law regarding Minnesota overtime pay and took issue with the ALJ allowing the Administrator to amend the Determination Letters. However, the ARB found that the ALJ acted within his discretion. Respondents further contended that WHD did not accurately calculate Minnesota's overtime law. The ARB disagreed and found that Respondents failed to persuade the Panel that the Administrator and ALJ erred in finding Respondents liable for Minnesota overtime.

Lastly, Respondents argued that the ALJ erred in his back wages calculations because testimony supported that WHD miscalculated back wages. The ARB agreed. Melissa Erasmus, Respondents' payroll employee, testified that WHD's calculations contained errors because they added an extra day to every worker as well as an entire extra week of work. WHD Investigator Matt Jones acknowledged that WHD's software inadvertently caused the error and that the calculations needed to be revised accordingly.

Despite this testimony, the ALJ did not address these errors when adopting WHD's calculations. The ARB affirmed the ALJ's determination that Respondents were liable to pay H-2B workers back wages but vacated the ALJ's calculation and remanded to the ALJ to recalculate the amount of back wages in accordance with new evidence. Because the ARB vacated the back wages amount, the ARB also vacated and remanded the ALJ's calculation of CMPs for Respondents' substantial failure to pay the prevailing wage in 2016 and 2017. The ARB instructed the ALJ on remand to recalculate the amount of CMPs to account for the recalculation of back wages.

The ARB also determined that the ALJ erred in reducing the CMPs for Respondents' failure to provide accurate earnings statements. The ALJ had reasoned that a reduction in CMPs was warranted because Respondents were already punished for their failure to pay workers the offered hourly wage, and there was overlap between the two violations. Although workers' payroll cards were inaccurate because Respondents substantially failed to pay their H-2B workers all the wages owed and Respondents showed the payroll cards to their respective H-2B employees, Respondents failed to give copies of the payroll cards to their H-2B employees. The ARB found that although Respondents had no history of prior violations of the H-2B program and implemented a system to accurately record workers' hours, all workers were affected by Respondents' failure to provide accurate earnings statements, it played a significant role in workers' underpayment, it allowed Respondents to realize a financial gain, and the gravity of the violation was substantial. As such, the ARB amended the ALJ's CMP by adding an additional $1,000 per Respondent per year for a total increase of $4,000 in CMPs.

The ARB affirmed the remainder of the ALJ's findings on back wages and CMPs as reasonable.

Friesner v. Family Dollar, ARB Nos. 2026-0045, -0059, ALJ No. 2026-0059, ALJ No. 2025-SOX-00010 (ARB Aug. 20, 2026) (Decision and Order Denying Interlocutory Appeal)

INTERLOCUTORY APPEAL DENIED; COMPLAINANT DID NOT ESTABLISH COLLATERAL ORDER FACTORS

In Friesner v. Family Dollar, ARB Nos. 2026-0045, -0059, ALJ No. 2025-SOX-00010 (ARB Aug. 20, 2026), the ARB denied Complainant's petition for interlocutory review.

Complainant sought interlocutory review of an ALJ order denying her motion for case-terminating sanctions and default judgment based on alleged alteration or destruction of evidence. The ARB held that the appeal was interlocutory because the ALJ had not issued a decision fully disposing of all claims. Complainant had not obtained certification under 28 U.S.C. § 1292(b), so the ARB considered whether the collateral order exception applied. To fall within the "collateral order" exception, the order appealed must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment.

The ARB held that the ALJ's refusal to enter default judgment or impose sanctions was not effectively unreviewable after final judgment. If Complainant did not prevail, she could challenge the ALJ's ruling on appeal from the final decision, and the ARB could then order appropriate relief, including adverse inferences, evidentiary preclusion, dismissal, default judgment, or other sanctions if warranted. The ARB reiterated that it generally declines interlocutory review of procedural, discovery, and evidentiary rulings because such matters are ordinarily reviewable after final judgment.

MOTION FOR RECONSIDERATION; COMPLAINANT DID NOT ESTABLISH GROUNDS FOR RECONSIDERATION

In a previous, related interlocutory appeal (Larson v. Family Dollar, ARB No. 2026-0045, ALJ No. 2025-SOX-00010 (ARB July 17, 2026) (Decision and Order Denying Interlocutory Appeal)), the ARB denied Complainant's interlocutory appeal seeking review of orders regarding Complainant's request to permit her husband to serve as her non-attorney representative, the ALJ's alleged failure to address an evidence spoliation issue, the ALJ's decision to continue the hearing and extend pending deadlines, and an order entering a protective order.

Complainant appeared to seek reconsideration of the ARB's previous decision. The ARB denied reconsideration because Complainant largely repeated arguments already raised in her original interlocutory appeal. The ARB concluded that these arguments did not satisfy the standards for reconsideration and, in any event, would not alter the ARB's prior conclusion that the challenged orders were reviewable after final judgment.

Pandiri v. Bytedance Inc., ARB No. 2026-0003, ALJ No. 2024-LCA-00011 (ARB Aug. 7, 2026) (Decision and Order)

TIME IN WHICH TO APPEAL; RECONSIDERATION

In Pandiri v. Bytedance Inc., ARB No. 2026-0003, ALJ No. 2024-LCA-00011 (ARB Aug. 7, 2026), the ARB dismissed Complainant's appeal to the ARB because it was not timely filed. Complainant had previously filed an untimely motion for reconsideration with the ALJ and, after the ALJ denied that motion, filed successive motions for reconsideration. The ARB held that although a timely motion for reconsideration extends the deadline for filing an appeal of an ALJ's decision (with the time in which to appeal beginning to run when the ALJ rules on the motion for reconsideration), an untimely motion for reconsideration does not extend the time in which a party may seek review of an ALJ's decision. The ARB further held that a second or successive motion for reconsideration does not alter the time in which to seek review of an ALJ's order.

The ARB also considered and rejected Complainant's argument that equitable tolling or equitable estoppel applied. The ARB held that Complainant had not demonstrated that he raised the precise statutory claim in the wrong forum or been prevented from filing in some extraordinary way. Accordingly, equitable tolling was not warranted. Additionally, the ARB determined that Complainant failed to substantiate his claim that Respondent prevented him from timely filing an appeal, and thus equitable estoppel was not warranted.

Reid v. Exelon Corp., LLC/Exelon Generation Co., ARB No. 2026-0022, ALJ No. 2021-ERA-00008 (ARB Aug. 11, 2026) (Decision and Order)

TIMELINESS; UNTIMELY REFUSAL TO HIRE CLAIM

In Reid v. Exelon Corp., LLC/Exelon Generation Co., ARB No. 2026-0022, ALJ No. 2021-ERA-00008 (ARB Aug. 11, 2026), the ARB affirmed the ALJ's dismissal of Complainant's complaint alleging Exelon discriminated against him for engaging in activity protected under the Energy Reorganization Act on the basis that it was untimely filed.

Complainant was employed as a Nuclear Auxiliary Operator by Niagara Mohawk Power Corporation at the Nine Mile Point Unit 2 nuclear power plant from 1985 to 1989. In 1989, Complainant and Niagara Mohawk entered into a settlement agreement in which Complainant agreed to withdraw multiple pending claims against Niagara Mohawk, was placed in another position, and was to be allowed to return to the position of Auxiliary Operator at Nine Mile Point Unit 2 after six months if he met medical suitability requirements and requested a transfer in March 1990. Constellation Energy purchased Nine Mile Point from Niagara Mohawk in 2000. Complainant's employment at the power plant was terminated in 2002. Exelon acquired Constellation and Nine Mile Point in 2011. Since his 2002 termination, Complainant had not been employed as a regular full-time employee by Niagara Mohawk or any other company that subsequently acquired ownership of Nine Mile Point Unit 2.

TIMELINESS; CONTINUING VIOLATIONS THEORY INAPPLICABLE

On March 24, 2021, Complainant filed an OSHA complaint alleging that Exelon and predecessor owners of Nine Mile Point were bound by the 1989 settlement agreement and had continuously refused to reinstate his employment per the 1989 settlement terms in retaliation for safety complaints he filed while he was employed at Niagara Mohawk.

The ARB held that Complainant failed to file his ERA complaint within 180 days of the alleged adverse action, as required by 42 U.S.C. § 5851(b)(1). The ARB explained that unlike acts alleged as part of a hostile work environment claim, refusal to hire, termination, and other adverse actions such as failure to promote are discrete acts that are not actionable if time barred, even when they are related to acts alleged in timely filed charges.

Regarding Complainant's refusal-to-hire claims, the ARB found that Complainant's most recent job applications to Respondent before filing the OSHA complaint were submitted on February 2, 2018, more than three years before he filed his OSHA complaint. The ARB noted that Complainant had unsuccessfully applied for at least 25 jobs with Respondent and that while he may not have received formal rejections of his February 2018 applications, it should have been apparent well before the 180-day period preceding the filing of the complaint on March 24, 2021, that those applications were unsuccessful given Respondent's extended lack of interest in hiring him.

The ARB also rejected Complainant's argument that the limitations period restarted on December 15, 2020, when he demanded that Respondent honor the 1989 settlement agreement and restore him to a nuclear operator position. The ARB found that this demand was not an application for an open position, and Respondent's reply merely stated that it was not a party to, or bound by, the 1989 settlement agreement. Therefore, Respondent's response was not a new refusal to hire that restarted the ERA limitations period. Accordingly, the ARB affirmed the ALJ's findings and conclusions that Complainant's ERA claims were untimely.

Tse v. eBay, Inc., ARB No. 2024-0018, ALJ No. 2019-SOX-00013 (ARB Aug. 31, 2026) (Decision and Order)

In Tse v. eBay, Inc., ARB No. 2024-0018, ALJ No. 2019-SOX-00013 (ARB Aug. 31, 2026), the ARB affirmed the ALJ's Decision and Order denying Complainant's SOX retaliation complaint.

Complainant worked for Respondent as part of eBay Motors from 2007 until April 2015, when his employment was terminated as part of a companywide RIF. Complainant alleged that he engaged in protected activity on several occasions, including by reporting misconduct in 2010 and 2012, raising concerns about Respondent's acquisition of WHI Solutions and related "synergy" goals, reporting "conquest selling," reporting fear of retaliation, and filing a SOX complaint with OSHA in 2015. After a hearing, the ALJ found that Complainant engaged in protected activity only with respect to his 2010 and 2012 reports and his 2015 SOX complaint. The ALJ found that Complainant failed to prove his protected activity contributed to any timely adverse action and further found that Respondent proved by clear and convincing evidence that it would have taken the same actions in the absence of protected activity.

On appeal, Complainant primarily argued (1) the ALJ's credibility findings were improper; (2) the ALJ erred in determining that certain allegations were not protected activity; (3) the ALJ erred in finding that Complainant failed to prove his protected activity was a contributing factor in adverse actions against Complainant; (4) the ALJ erred in finding that Complainant's former supervisor was not acting as an agent of Respondent when she emailed a potential employer in 2016 about Complainant; and (5) the ALJ erred in finding that Respondent proved by clear and convincing evidence its affirmative defense. The ARB affirmed the ALJ's rulings.

CREDIBILITY DETERMINATIONS; ARB DEFERS TO ALJ'S DEMEANOR-BASED FINDINGS WHERE NOT INHERENTLY INCREDIBLE OR PATENTLY UNREASONABLE

The ARB reviews legal questions de novo but is bound by an ALJ's factual findings when supported by substantial evidence. The ARB generally defers to credibility findings unless they are inherently incredible or patently unreasonable.

The ARB affirmed the ALJ's credibility findings. The ALJ found Complainant's credibility "somewhat impaired" and afforded his testimony less evidentiary weight, particularly where contradicted by more credible witnesses. The ALJ found that Complainant was not forthright on cross-examination, was frequently evasive, lacked self-awareness in describing his interactions with others, and often offered testimony that was uncorroborated or contradicted by other witnesses.

The ARB concluded that the ALJ's assessment was neither inherently incredible nor patently unreasonable and thus affirmed the ALJ's assessment as supported by substantial evidence. The ARB also affirmed the ALJ's decision to afford full evidentiary weight to the testimony of other witnesses, including certain personnel involved in performance evaluations and the RIF, after the ALJ found those witnesses testified in good faith.

SOX PROTECTED ACTIVITY

An employee engages in SOX-protected activity by providing information to the government or a supervisor regarding conduct the employee reasonably believes violates sections 1341 (mail fraud), 1343 (wire fraud), 1344 (bank fraud), 1348 (securities fraud), any rule or regulation of the Securities and Exchange Commission, or any provision of Federal law relating to fraud against shareholders. "Reasonable belief" has both subjective and objective components. For subjective belief, the employee must hold an actual belief in good faith that the reported conduct falls within a SOX-enumerated category. For objective belief, a reasonable person with similar experience, training, and factual knowledge would objectively believe that a violation had occurred.

The ARB affirmed the ALJ's protected activity findings. The ALJ found, and the parties did not dispute, that Complainant engaged in protected activity when he reported misconduct to in-house counsel in 2010 and 2012, and when he filed his SOX complaint in 2015. The ARB also affirmed the ALJ's rejection of six additional alleged protected activities because some were not established by sufficient or credible evidence and others did not concern conduct covered by SOX.

The ALJ found that Complainant's alleged protected activity regarding reporting "conquest selling" was based on Complainant's own testimony, which the ALJ found unpersuasive because Complainant was not credible. Further, the subject of conquest selling was related to antitrust and not tethered to the enumerated categories of SOX.

For Complainant's alleged protected activity regarding WHI synergies, the ALJ found the allegations failed to satisfy either the subjective component or objective components of the reasonable-belief standard.

Complainant also argued that his report that he feared retaliation for reporting SOX protected activity to Respondent's legal department was itself SOX protected activity. As the ALJ found, Complainant did not argue that communication of a fear of retaliation for prior reports constitutes protected activity. The ALJ discussed the prior reports as: (1) the 2010 report of misconduct; (2) the 2012 report of misconduct; and (3) Complainant's communication regarding conquest selling. The first two the ALJ found to be protected activity. The third, the ALJ did not deem protected. Thus, the "fear of retaliation" activity concerned matters the ALJ had already deemed protected or not protected.

Moreover, Complainant's claim appeared to be that the communication of fear itself was protected activity. If Complainant's theory of protected activity was indeed that fear itself was protected regardless of the content underlying the fear, this would create a new category of SOX protected activity. A complainant could have no subjective or objectively reasonable belief that there was a violation of SOX's categories of fraud, a rule or regulation of the SEC, or any federal law related to fraud against shareholders, yet report an untethered fear of retaliation and be protected.

TIMELINESS; ADVERSE ACTIONS OUTSIDE SOX'S 180-DAY FILING PERIOD WERE UNTIMELY

A SOX complaint must be filed within 180 days after the alleged violation occurs or the employee becomes aware of it. Because Complainant filed on June 9, 2015, the ALJ considered only actions occurring on or after December 11, 2014, to be timely.

The ALJ identified three timely adverse actions: denial of a 2014 bonus due to his "Does Not Meet" year-end review, Complainant's 2015 termination in the RIF, and a 2016 email from Complainant's former supervisor to a potential employer.

CONTRIBUTING FACTOR

To prevail against an employer, a complainant must prove that protected activity was a contributing factor in an adverse action. The ARB has held that a contributing factor is any factor, which alone or in combination with other factors, affects the outcome of a decision. Employees may meet their evidentiary burden with circumstantial evidence.

The ARB affirmed the ALJ's finding that Complainant failed to prove his protected activity was a contributing factor in any timely adverse action. Because the ARB affirmed the ALJ's protected-activity rulings, only three protected activities, together with three timely adverse actions, remained at issue. The relevant protected activities were the 2010 and 2012 reports of misconduct and the 2015 SOX complaint, and the relevant adverse actions were the denial of the 2014 bonus, 2015 RIF termination, and the 2016 email from Complainant's former supervisor to a potential employer.

The ARB agreed that the 2010 and 2012 protected activities were too remote in time to establish temporal proximity to adverse actions occurring between 2014 and 2016. The ARB also noted that intervening performance concerns undercut causation. The record reflected recurring feedback over several years from multiple supervisors that, although Complainant had strong technical and subject-matter expertise, he lacked people skills and leadership skills.

As to the 2015 SOX complaint, the only timely adverse action occurring afterward was the 2016 email from Complainant's former supervisor to a potential employer. The ALJ credited the former supervisor's testimony that she did not recall being aware of Complainant's SOX complaint when she sent the email. The ARB affirmed ALJ's findings and rejected Complainant's reliance on documents not admitted into the record. Even assuming the documents were considered, the ARB found they did not establish that the supervisor knew of the SOX complaint.

AFFIRMATIVE DEFENSE

Although the ALJ found Complainant failed to prove contributing factor causation, the ALJ also considered Respondent's affirmative defense. The ARB affirmed the ALJ's finding that Respondent proved by clear and convincing evidence that it would have taken the same actions in the absence of protected activity.

The ARB affirmed the ALJ's findings concerning Complainant's performance reviews. Substantial evidence showed that multiple supervisors over several years raised similar concerns about Complainant's communication style, leadership skills, and people management. The ARB held that Respondent proved it would have issued the same performance assessments absent protected activity.

The ARB further affirmed the ALJ finding that Respondent would have selected Complainant for termination in the RIF absent protected activity. The RIF affected approximately 2,400 employees companywide, including 41 positions in the Verticals division and two of six positions in Parts & Accessories. Respondent determined that Parts & Accessories did not need both a director and senior manager and eliminated Complainant's senior-manager position as the less senior of the two. The ARB found substantial evidence supported the ALJ's conclusion.

With respect to the 2016 email from Complainant's former supervisor to a potential employer, the ARB did not need to decide whether the former supervisor acted as Respondent's agent when she sent the email from her personal email account to a personal acquaintance. Even assuming agency, the ARB held that substantial evidence supported the ALJ's finding that Respondent established an unambiguous and highly probable explanation unrelated to protected activity. The email stated that Complainant knew parts and e-commerce well but struggled with leadership and would be better suited to an individual-contributor or subject-matter expert role. The ARB found that this assessment aligned with Complainant's documented performance history and recurring feedback about his communication limitations.

Finally, although Respondent's decision to hire another person as Director of Parts & Accessories was untimely as an adverse action, the ARB also affirmed the ALJ's finding that Respondent would have made the same hiring decision absent protected activity. The record supported Respondent's explanation that it prioritized leadership capability for the director role and had longstanding concerns about Complainant's leadership and communication skills.

Accordingly, the ARB affirmed the ALJ's Decision and Order.