Administrative Review Board Decisions

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

Xanthopoulos v. Mercer Investment Consulting, ARB No. 2022-0032, ALJ No. 2021-SOX-00017 (ARB Sept. 28, 2023) (Decision and Order)

BLACKLISTING; CREDIBILITY AT SUMMARY DECISION; ALJ BIAS AND HANDLING OF PROCEEDINGS; RES JUDICATA

In Xanthopoulos v. Mercer Investment Consulting, ARB No. 2022-0032, ALJ No. 2021-SOX-00017 (ARB Sept. 28, 2023), the ARB affirmed the ALJ's entry of summary decision against Complainant. The ARB determined that: (1) there was no evidence that blacklisting occurred and that Complainant's claims to the contrary were speculative and unreasonable; (2) Complainant's attacks on witness credibility were insufficient to forestall summary decision; (3) Complainant's arguments that the ALJ was biased or mishandled the proceedings were misplaced; and (4) the doctrine of res judicata barred Complainant's attempts to relitigate a previously dismissed claim.

BLACKLISTING; ENTRY OF SUMMARY DECISION APPROPRIATE WHERE COMPLAINANT FAILED TO ADDUCE EVIDENCE THAT BLACKLISTING OCCURRED

Complainant argued that Respondent, his former employer, violated SOX by blacklisting him and causing him not to be selected for a position with Charles Schwab. Specifically, Complainant alleged that Charles Schwab did not select him because his former manager at Respondent, Bryon Willy, passed negative information or information about his protected activity to an interviewer at Charles Schwab, Andrei Egorov, through Complainant's former colleagues, Juan Espina and Mark Raaberg, who had connections to Charles Schwab.

Before the ALJ, Respondent moved for summary decision, arguing that there was no evidence that anyone at Respondent took any action to interfere with Complainant's efforts to secure employment at Charles Schwab. The ALJ agreed. Specifically, the ALJ stated that Complainant "was afforded an opportunity to conduct discovery which included the deposition of the person who [Complainant] alleged provided the derogatory information about his whistleblowing activities (Byron [sic] Willy) and the person who he alleged was tainted by the information supposedly supplied (Andrei Egorov). Neither deposition uncovered any facts that support Complainant's claim." In particular, Willy testified that his last contact with Espina and Raaberg occurred years before Complainant engaged in protected activity, and denied sharing any derogatory information about Complainant with them. Likewise, Egorov denied receiving any derogatory information about Complainant.

Regarding the first link in the alleged derogatory chain—from Willy to Espina and/or Raaberg—on appeal, Complainant pointed to instances which led him to believe that Willy, Espina, and Raaberg remained in contact while Complainant worked at Respondent, despite Willy's testimony to the contrary. Complainant then surmised that "[s]ince we established that Willy, Espina and Raaberg were talking about [Complainant], it is easy to conclude that they were at the very least talking about [his protected activity and history of identifying SOX violations]." The ARB disagreed, concluding that "tenuous evidence that Willy, Raaberg, and Espina may have remained in contact over a period of years is not evidence that Willy was actively disparaging [Complainant] to the other two or sharing information about [Complainant's] protected activity with them."

Regarding the second link in the alleged derogatory chain—from Espina and/or Raaberg to Egorov—before the ALJ, Complainant primarily focused on Espina as the individual who he believed interfered with his selection at Charles Schwab. Specifically, he believed that Espina interfered during a ten-minute break in his interview with Egorov, which Complainant found to be "uncharacteristic" and after which Egorov promptly terminated the interview. Yet, the ARB observed that: (1) Complainant acknowledged that he did not hear Egorov speak to anyone during the break; (2) Complainant conceded that he had no other basis to conclude that Espina interfered other than Egorov's "uncharacteristic" behavior; (3) Egorov denied receiving information concerning Complainant's performance or his protected activity at Respondent from anyone and denied speaking with Espina about Complainant; and (4) Complainant acknowledged that Espina confirmed to him that Espina had not spoken with Egorov about Complainant. Thus, the ARB concluded that Complainant's "theory that Espina interfered with his interview at Charles Schwab is unsupported by any evidence in the record, and any remaining speculation about Espina's involvement is unreasonable and is insufficient to create a dispute of material fact."

On appeal to the ARB, Complainant shifted his focus to Raaberg as the one who "probably . . . buried [him] to Egorov." However, the ARB observed that Complainant failed to offer a clear explanation as to when, or under what circumstances, Raaberg might have relayed negative information about him to Egorov. It appeared that Complainant based his theory about Raaberg on a call Complainant had with Espina, during which Espina denied speaking with Egorov himself, but stated that Raaberg "might have." Yet, the ARB observed that Complainant conceded Espina's proffer was "conjecture[ ]." Thus, the ARB concluded that "the stray statement from Espina that a conversation between two other individuals 'might' have occurred is unreasonable and unsubstantiated speculation."

The ARB also rejected Complainant's additional argument that Raaberg may have had influence over the hiring decisions at Charles Schwab generally because of his position and tenure in the industry, and may have used that power to preclude Complainant from being hired there. The ARB stated that Complainant "offered no evidence to substantiate that Raaberg's stature in the industry or role in a company that served as a vendor to Charles Schwab gave him the ability to influence Charles Schwab's hiring decisions."

Thus, the ARB agreed with the ALJ that Complainant failed to present evidence that could raise a dispute of material fact that the alleged derogatory chain from Willy, to Espina and/or Raaberg, to Egorov existed. Accordingly, the ALJ's entry of summary decision was appropriate.

CREDIBILITY AT SUMMARY DECISION; COMPLAINANT’S ATTACKS ON WITNESS CREDIBILITY ARE INSUFFICIENT TO FORESTALL SUMMARY DECISION WHERE COMPLAINANT OTHERWISE LACKS AFFIRMATIVE EVIDENCE OF CLAIM

Complainant also attacked Willy's and Egorov's credibility. Complainant accused Willy of committing perjury during his deposition, and argued that Egorov was not credible because of his inability to recall the specifics of his interview with Complainant during his deposition. Complainant argued that instead of accepting Willy's and Egorov's testimony at face value, the ALJ should have conducted a hearing to assess their credibility. Complainant also argued that he should have been permitted to test the veracity of Willy's and Egorov's testimony by deposing Espina and Raaberg, the alleged middlemen in the derogatory chain.

The ARB disagreed. "The mere possibility that the fact finder might reject the moving party's evidence on credibility grounds is not enough to forestall summary judgment for the moving party." Even if there are credibility concerns, "the nonmoving party must [still] present affirmative evidence in order to defeat a properly supported motion for summary judgment." Thus, the ARB stated that "[e]ven if we accept that a factfinder might question Willy's or Egorov's credibility, [Complainant] still failed to present affirmative evidence in support of his claim that Willy shared information about [Complainant] with Espina or Raaberg and that Espina or Raaberg, in turn, shared that information with Egorov or otherwise impacted [Complainant's] potential employment at Charles Schwab."

The ARB also rejected Complainant's speculation that Espina and Raaberg might have rebutted the testimony proffered by Willy and Egorov, had he been permitted to depose them. Espina confirmed to Complainant that he was not part of any alleged derogatory chain, and Complainant admitted that Espina's proffer regarding Raaberg's potential involvement was also "conjecture[ ]." "Consequently, [Complainant] has effectively conceded that it is unsubstantiated speculation at this stage that Espina or Raaberg would offer any contrary or countervailing testimony tending to establish that the alleged derogatory chain might have existed. [Complainant's] attempt to depose Espina and Raaberg would be nothing more than a fishing expedition."

ALJ BIAS AND HANDLING OF PROCEEDINGS; ALJ DID NOT SHOW BIAS OR MISHANDLE PROCEEDINGS

During the discovery phase before the ALJ, Complainant committed a series of discovery oversteps and missteps, which he believed "turned the [ALJ] out of favor towards [him]" and led the ALJ to show "clearly favorable bias" towards Respondent. The ARB stated that ALJs are presumed to act impartially and that the ARB typically requires a party accusing an ALJ of bias to show some type of extra-judicial source of bias to support such a conclusion. The ARB determined that Complainant failed to make such a showing. "[Complainant] has not cited any extra-judicial source of bias in this case. . . . [Complainant] may not agree with the ALJ's handling of the case, but [Complainant] has failed to meet his burden to demonstrate that the ALJ was biased."

Short of outright bias, Complainant also accused the ALJ of becoming frustrated with him and denying him the adjudicative latitude to which he was entitled as a pro se party. The ARB again disagreed. "Although the ALJ closely regulated the proceedings, the steps she took to manage the case were warranted and well within the discretion afforded to ALJs, given the circumstances of the case."

RES JUDICATA; RES JUDICATA BARRED COMPLAINANT’S ATTEMPT TO RELITIGATE A PREVIOUSLY DISMISSED CLAIM; ARGUMENT THAT PRIOR DECISION WAS WRONG IS IRRELEVANT UNDER RES JUDICATA

The ARB affirmed the ALJ's decision to apply the doctrine of res judicata to bar Complainant's attempts to relitigate a prior SOX claim against Respondent. Previously, Complainant pursued a SOX claim against Respondent alleging that Respondent had wrongfully terminated his employment in violation of SOX. Complainant failed to file a complaint with OSHA within 180 days of the alleged violation, as required under SOX. Accordingly, the ALJ dismissed his claim as untimely. The ARB and the Court of Appeals for the Seventh Circuit subsequently affirmed the dismissal.

In this second, subsequent action, Complainant attempted to relitigate and reargue his dismissed wrongful discharge claim, contending that the ALJ, the ARB, and the Seventh Circuit erred in dismissing his claim. The ALJ barred Complainant's attempt to do so under the doctrine of res judicata. The ARB affirmed.

Under the doctrine of res judicata, "[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Complainant did not dispute that there was a final judgment on the merits of his first SOX claim (the ARB's decision was affirmed by the Seventh Circuit); that the case involved the same parties or their privies (Complainant and Respondent); or that Complainant was attempting to raise the same cause of action that was litigated in the first case (SOX wrongful discharge claim). Instead, Complainant only argued that the ALJ, the ARB, and the Seventh Circuit made the wrong decision in the first case. The ARB stated that "[t]his is precisely the type of re-argument that the doctrine of res judicata prevents."

Dean v. South Carolina Department of Transportation, ARB No. 2023-0022, ALJ No. 2023-WPC-00001 (ARB Sept. 28, 2023) (Decision and Order)

UNTIMELY APPEAL; EQUITABLE MODIFICATION; EQUITABLE TOLLING

In Dean v. South Carolina Department of Transportation, ARB No. 2023-0022, ALJ No. 2023-WPC-00001 (ARB Sept. 28, 2023), the ARB vacated and remanded a FWPCA case to the ALJ for consideration of Complainant's equitable modification arguments and for consideration of Complainant's opposition filing.

On June 2, 2022, Complainant filed a complaint with OSHA, alleging that Respondent denied him sick leave benefits and FMLA leave in retaliation for reporting "potential Clean Water Act violations." On October 18, 2022, OSHA dismissed the complaint, finding that the evidence "did not support that Respondent retaliated against Complainant for engaging in any protected activity under the FWPCA." OSHA notified Complainant of his right to request a hearing before the OALJ, advised Complainant that he had 30 days from the receipt of OSHA's findings to request a hearing, and cautioned Complainant that failure to request a hearing would render the OSHA decision final.

On November 18, 2022, 31 days after Complainant received the OSHA decision, Complainant filed his objections with the OALJ via email and requested a hearing. On December 5, 2022, Respondent submitted a letter to the Chief ALJ, arguing that Complainant's objections were untimely under 29 C.F.R. § 24.106(a) and, consequently, his complaint should be dismissed with prejudice. On December 7, 2022, Complainant responded by email, asking the Chief ALJ to excuse his untimeliness and explaining that he failed to timely request a hearing because (1) he was waiting for a response to a FOIA request before filing; and (2) he interpreted the applicable deadline to fall on November 18, not November 17, 2022.

On February 2, 2023, the ALJ issued an Order to Show Cause. In the Order to Show Cause, the ALJ referred to Respondent's request for dismissal, observed that Complainant's request for a hearing was untimely, and ordered Complainant to show cause why his case should not be dismissed. On February 7, 2023, Complainant filed an Answer. In Complainant's Answer, he reiterated that his objections and request for a hearing were untimely because he was waiting for a response to his FOIA request. He also restated that he interpreted the 30-day deadline for filing his objections to expire on November 18, 2022, and requested the ALJ find his objections were timely filed, grant an extension of time, or grant waiver, modification, or suspension of the deadline.

On February 23, 2023, Respondent filed a Renewed Motion to Dismiss, arguing that there was no dispute that Complainant miscalculated the 30-day deadline, and that Complainant's admitted miscalculation of the filing deadline, "does not constitute excusable neglect," nor create, "unique circumstances," to waive the filing deadline.

On February 27, 2023, the ALJ issued an Order dismissing the complaint with prejudice for Complainant's failure to timely file his objections and request for a hearing. The ALJ's Order of Dismissal did not address Complainant's arguments regarding "waiver, modification, or suspension of the deadline." After the ALJ issued the Order of Dismissal, Complainant attempted to file an Opposition to Respondent's Renewed Motion to Dismiss with the ALJ on March 10, 2023. On March 15, 2023, the ALJ issued an Order deeming Complainant's responsive filing moot because she had already dismissed the case and Complainant had appealed to the ARB.

In his Petition to the ARB, Complainant argued that the ALJ should have accepted his untimely request for a hearing for the reasons set forth in his Answer to the ALJ's Order to Show Cause and his Opposition to Respondent's Renewed Motion to Dismiss. Complainant also contended that the ALJ's Order of Dismissal was issued prematurely, prior to the conclusion of Complainant's 14-day deadline to file an opposition to Respondent's Renewed Motion to Dismiss. Complainant also appeared to allege to the ARB that Respondent deliberately hindered his FOIA efforts, which he asserted "goes to whether the ALJ should have considered the essential elements of Equitable Tolling."

The ARB concluded that the ALJ did not address whether Complainant's explanations for his tardy filing met any of the grounds for equitable modification. Accordingly, the ARB vacated the ALJ's Order of Dismissal granting Respondent's Motion to Dismiss and remanded with instructions to make factual and legal findings in accordance with ARB precedent. Because the ARB vacated the ALJ's Order of Dismissal, the ARB also vacated the ALJ's Order That Complainant's Response is Moot and instructed the ALJ to reconsider whether to admit Complainant's Opposition to Respondent's Renewed Motion to Dismiss, along with Respondent's Reply, if applicable.

Mehrotra v. General Electric Co., ARB No. 2022-0060, ALJ No. 2022-SOX-00014 (ARB Sept. 21, 2023) (Decision and Order)

UNTIMELY COMPLAINT; COMPLAINANT INELIGIBLE FOR EQUITABLE ESTOPPEL

In Mehrotra v. General Electric Co., ARB No. 2022-0060, ALJ No. 2022-SOX-00014 (ARB Sept. 21, 2023), the ARB affirmed the ALJ's dismissal of Complainant's untimely complaint. Complainant failed to file his complaint within 180 days of the alleged adverse actions, as required by SOX. Regarding Complainant's claim concerning the termination of his employment, the ARB found that Complainant had 180 days from the date of final notice of the termination of his employment to file his retaliation claim. Regarding Complainant's claim concerning blacklisting, the ARB concluded that Complainant had 180 days from when it was apparent or should have been apparent that the Respondent was refusing to rehire him. Complainant failed to meet the deadlines for either claim. The ARB further determined that Complainant's circumstances did not support equitable estoppel because "courts generally have held that unless the employer has acted deliberately to deceive, mislead or coerce the employee into not filing a claim in a timely manner, equitable estoppel will not apply." Accordingly, the ARB affirmed the ALJ's Order.

Booker v. Exelon Generation Co., LLC, ARB No. 2022-0049, ALJ No. 2016-ERA-00012 (ARB Sept. 21, 2023) (Decision and Order Affirming in Part and Vacating and Remanding in Part)

JURISDICTION; CONTRIBUTING FACTOR; SUBSTANTIAL EVIDENCE; HOSTILE WORK ENVIRONMENT

In Booker v. Exelon Generation Co., LLC, ARB No. 2022-0049, ALJ No. 2016-ERA-00012 (ARB Sept. 21, 2022), the ARB affirmed, in part, and vacated and remanded in part, the ALJ's D. & O. Respondent owns and operates nuclear power plants. Complainant was working for Respondent as an Administrative Coordinator when, in 2013, she raised a concern to Respondent's Nuclear Oversight group regarding technicians backdating safety-related procedure documents. After her report, she was removed from performing two of her job duties.

Respondent required Complainant to have unaccompanied access to the nuclear plant where she worked under its Unaccompanied Access Authorization (UAA) program. In September 2014, Complainant's supervisor was advised that he needed to complete the Annual Behavioral Observation Program (BOP) Supervisory Review form for Complainant. Because Respondent owns and operates nuclear power plants, it must comply with NRC regulations, including the NRC's UAA requirements, and its related BOP program. Consistent with NRC regulations, Respondent's UAA program requires employees to undergo an annual review of their behavior, and if they are determined not to be "trustworthy and reliable" based on the results of the annual review, employees may be subject to suspension of or holds on their UAA.

Complainant's supervisor, in completing the form, indicated that Complainant would go out of her way to avoid contact with certain individuals and that she would talk out loud to no one but herself. Complainant's supervisor sent the completed form to Respondent's access authorization lead, who determined that Complainant's behavior was abnormal, and who in turn forwarded the report to Respondent's Medical Review Officer (MRO) for review. The MRO indicated that Complainant should be required to complete a mandatory evaluation through Respondent's Employee Assistance Program (EAP) within ten days. Through EAP, Complainant was referred to a counselor who recommended that Complainant attend six counseling sessions, but also determined that Complainant was "trustworthy and reliable" to maintain her UAA while she completed therapy. Complainant remained in work status.

Through late September and early October 2014, Complainant contacted HR on two different occasions alleging that her supervisor had been physically aggressive and/or raised his voice at her. In between those occasions, Complainant's supervisor made an entry in Respondent's electronic HR database regarding Complainant alleging insubordination.

Following these instances, a HR representative initiated a conference call with an interdisciplinary group internal to Respondent because he was concerned about Complainant's behaviors. In October 2014, a meeting was held during which the decision was authorized by Respondent's Reviewing Official to place Complainant's UAA on an administrative hold pending further evaluation.

Complainant continued treatment with the counselor, who recommended in December 2014 that Complainant be allowed to return to work with two conditions: a temporary change in the primary boss that Complainant reported to, and for Complainant's desk to be moved to an open space in the same office nearer that boss. The MRO felt that these conditions were "a huge red flag" and rejected them, finding that Complainant needed a full release-to-work with no restrictions. The Reviewing Official agreed with the MRO's recommendation and kept the temporary hold of Complainant's UAA badge in place until she received a full clearance to return to work without restrictions. Without a UAA, Complainant remained on both short-term and long-term disability leave. After 18 months on disability leave, Complainant's employment was terminated per Respondent's policy.

Complainant filed ERA whistleblower and hostile work environment complaints alleging that her protected activity contributed to the adverse employment action taken against her. Before the ALJ, Respondent filed a Motion for Summary Decision, which the ALJ granted. The ARB vacated the ALJ's decision and remanded the matter for the ALJ to proceed with an evidentiary hearing on the merits. On remand, the case was reassigned to a different ALJ, and before the newly assigned ALJ, Respondent filed a Motion to Dismiss arguing that the ALJ lacked legal authority to review Respondent's actions, which the ALJ denied. The ALJ held a formal hearing, and subsequently issued a D. & O. finding that Complainant failed to establish that her protected activity contributed to Respondent's adverse employment action against her and any intentional harassment occurred because of her protected activity. The ARB affirmed in part and vacated and remanded in part.

JURISDICTION; DEPARTMENT OF THE NAVY V. EGAN, 484 U.S. 518 (1988) DOES NOT BAR THE DEPARTMENT FROM REVIEWING DECISIONS DENYING UNESCORTED ACCESS TO NUCLEAR POWER WORKERS IN THE CONTEXT OF WHISTLEBLOWER OR HOSTILE WORK ENVIRONMENT CLAIMS; OALJ/ARB HAS JURISDICTION TO REVIEW THE DECISIONS OF A PRIVATE EMPLOYER REVOKING AND/OR REFUSING TO REINSTATE A NUCLEAR POWER WORKER'S UNESCORTED ACCESS

In affirming the ALJ, the ARB found that it had jurisdiction to review Respondent's decision to revoke and refuse to reinstate Complainant's UAA in the context of her claims. The ARB rejected Respondent's argument that the ARB lacks jurisdiction to review such decisions involving unescorted access in nuclear power plants, citing Department of the Navy v. Egan, 484 U.S. 518 (1988). The ARB found that Egan precludes federal courts and administrative agencies from reviewing the merits of the government's decision to grant or deny a security clearance. The ARB concluded that decisions made by private employers relating to granting, suspending, denying, and/or reinstating unescorted access to a nuclear facility is not equivalent to decisions made by governmental national security specialists related to granting or denying security clearances; thus, Egan does not preclude the OALJ or ARB from reviewing Respondent's decisions relating to revoking and refusing to reinstate Complainant's UAA in the context of her whistleblower claims. 

CONTRIBUTING FACTOR; ALJ'S ANALYSIS DID NOT DEMONSTRATE THAT THE ALJ CONSIDERED OR WEIGHED ALL THE EVIDENCE IN THE RECORD; A FINDING OF FACT LACKS SUBSTANTIAL EVIDENCE IF THE FACT FINDER IGNORES EVIDENCE OR FAILS TO RESOLVE A CONFLICT CREATED BY COUNTERVAILING EVIDENCE; ALJ MUST CONDUCT AN APPROPRIATE ANALYSIS OF THE EVIDENCE TO SUPPORT HIS FINDINGS

After concluding that the ALJ was not barred by Egan from analyzing whether Complainant's protected activity was a contributing factor in Respondent's decision to revoke and refuse to reinstate Complainant's UAA, the ARB found that the ALJ did not adequately analyze the evidentiary record or Complainant's related arguments in his contributing factor analysis that could have established that Complainant's protected activity was a contributing factor in Respondent's adverse employment action. The ARB noted after a review of the evidentiary record that it was apparent that the ALJ's D. & O. omitted many events that were pertinent to Complainant's whistleblower and hostile work environment claims. The ARB also noted that the ALJ failed to make any credibility findings after seven days of hearings. The ARB found that although the ALJ applied the correct legal standard for the contributing factor analysis, the ALJ did not conduct an appropriate analysis of the evidence because the ALJ did not mention, discuss, or evaluate a significant amount of the evidence relevant to Complainant's whistleblower claim despite the extensive record; thus, the ALJ's analysis did not adequately weigh the evidence or explain how he credited or discredited certain evidence to support his findings.

Without a thorough analysis, the ARB found that it was unable to ascertain how the ALJ reached his ultimate finding. The ARB vacated the ALJ's finding as to contributing factor and remanded the matter back to the ALJ to fully analyze the record and make revised findings on the issue of contributing factor in such a way that would explain how the ALJ credited and discredited the parties' arguments and the supporting or undermining evidence by the appropriate burden of proof.

HOSTILE WORK ENVIRONMENT; ALJ'S ANALYSIS DID NOT DEMONSTRATE THAT THE ALJ CONSIDERED OR WEIGHED ALL THE EVIDENCE IN THE RECORD

For similar reasons in vacating the ALJ's finding that Complainant's protected activity was not a contributing factor to Respondent's adverse employment action, the ARB found that the ALJ did not adequately consider the evidentiary record as to Complainant's hostile work environment claim. The ARB found that, in the absence of credibility determinations and an evaluation of all of Complainant's allegations of what constituted intentional harassment found in the evidentiary record but ignored by the ALJ, it was unable to determine whether the ALJ correctly determined that the evidence failed to meet the "high bar" required to establish a hostile work environment claim. The ARB remanded the matter back to the ALJ for more complete findings and analysis on Complainant's hostile work environment claim.

Brochu v. Dominion Energy Nuclear Connecticut, Inc., ARB No. 2022-0066, ALJ No. 2022-ERA-00004 (ARB Sept. 19, 2023) (Decision and Order Approving Settlement and Dismissing Case with Prejudice)

VOLUNTARY DISMISSAL; APPROVAL OF SETTLEMENT

In Brochu v. Dominion Energy Nuclear Connecticut, Inc., ARB No. 2022-0066, ALJ No. 2022-ERA-00004 (ARB Sept. 19, 2023), Complainant filed a complaint under the employee protection provisions of the ERA, and an ALJ issued an order denying the complaint. Complainant filed a Petition for Review of the ALJ's decision with the ARB but thereafter filed a Motion to Withdraw Appeal.

Complainant's Motion did not indicate the reason for withdrawal. The ARB took administrative notice of publicly available information indicating that the parties may have executed a settlement agreement in a separate federal court matter. Under the ERA's regulations (specifically, 29 C.F.R § 24.111(d)(2)), when a party withdraws an appeal based on a settlement, the settlement must be approved by the ARB and "[a] copy of the settlement must be filed with the . . . ARB . . . ."  The ARB ordered Complainant to file either an unredacted copy of any settlement agreement or a certification that the ERA claim had not been resolved by a settlement.

The parties filed responses to the Board's Show Cause Order, stating that the parties had settled Complainant's ERA claim and agreed to dismiss the appeal with prejudice pursuant to the terms of a settlement agreement. The ARB approved the parties' settlement agreement as fair, adequate, and reasonable, and not in contravention of the public interest. Accordingly, the ARB dismissed the appeal.

Trivedi v. General Electric, ARB No. 2023-0043, ALJ No. 2023-SOX-00014 (ARB Sept. 14, 2023) (Decision and Order Dismissing Petition for Review)

FAILURE TO FILE PETITION FOR REVIEW AFTER EXTENSION; ARB AUTHORITY TO EFFECTIVELY MANAGE DOCKET

In Trivedi v. General Electric, ARB No. 2023-0043, ALJ No. 2023-SOX-00014 (ARB Sept. 14, 2023), the ARB issued a Decision and Order Dismissing Petition for Review. On August 7, 2023, the ALJ dismissed Complainant's complaint. On August 31, 2023, Complainant filed a motion requesting an extension of time to file her petition for review with the ARB. The ARB granted Complainant's motion in part, providing Complainant with an additional ten calendar days to file her petition for review. The ARB cautioned Complainant that no further extensions would be granted and that failure to respond as directed may result in dismissal of Complainant's appeal.

Complainant did not file a petition for review. Rather, on August 24, 2023, and September 8, 2023, Complainant filed second and third motions requesting an extension of time.

The ARB has the inherent power to dismiss a case for failure to prosecute in an effort to control its docket and to promote the efficient disposition of its cases. Pursuant to this authority, the ARB may dismiss a complaint in a case in which the complainant failed to adequately explain a failure to comply with the ARB's briefing schedule. Given that Complainant did not file a petition for review by the extended deadline and was cautioned that no further extensions would be granted, the ARB dismissed Complainant's appeal.

Northeast Nebraska Economic Development District v. Administrator, Wage and Hour Div., USDOL, ARB No. 2023-0044 (ARB Sept. 15, 2023) (Order Dismissing Petition for Review Without Prejudice)

DISMISSAL WITHOUT PREJUDICE; FAILURE TO RESPOND TO ORDER TO SHOW CAUSE; ARB AUTHORITY TO EFFECTIVELY MANAGE DOCKET

In Northeast Nebraska Economic Development District v. Administrator, Wage and Hour Div., USDOL, ARB No. 2023-0044 (ARB Sept. 15, 2023), the ARB dismissed the Petition for Review without prejudice because Petitioner failed to timely respond to the ARB's Order to Show Cause.

The case arose under the Davis-Bacon Act and Related Acts (DBRA) and its applicable implementing regulations. The WHD issued a Wage Decision related to a Project No. 19 DTR-101. Subsequently, Petitioner proposed an additional classification and wage rate for the position of "Glazier." On April 19, 2023, the WHD issued a Determination Letter denying the requested wage rates for the Glazier position.

On August 16, 2023, Petitioner filed a Petition for Review with the ARB seeking review of the WHD Determination Letter. On August 24, 2023, the ARB ordered Petitioner to show cause no later than September 4, 2023, why the case should not be dismissed for lack of ripeness because WHD had not issued a final decision. Petitioner failed to respond to the ARB's Order to Show Cause.

The ARB has authority to effectively manage its docket, including authority to require compliance with the ARB's orders, which is necessary to achieve orderly and expeditious disposition of cases. Pursuant to this authority, the ARB may issue sanctions, including dismissal, for a party's failure to comply with the ARB's orders and briefing requirements. Accordingly, in this case, the ARB exercised its authority to manage its docket and dismissed the Petition for Review without prejudice for failure to comply with the requirements of the Order to Show Cause.

May v. AGL Services Co., ARB No. 2022-0015, ALJ No. 2020-PSI-00001 (ARB Sept. 14, 2023) (Decision and Order)

CITATIONS TO THE RECORD; CONTRIBUTING FACTOR; ALJ ABUSE OF DISCRETION; WITNESS EXCLUSION; CREDIBILITY DETERMINATIONS; UNSEALING RECORD

In May v. AGL Services Co., ARB No. 2022-0015, ALJ No. 2020-PSI-00001 (ARB Sept. 14, 2023), Complainant worked for Respondent as a fire investigator. Complainant alleged that Respondent terminated his employment in violation of the PSIA after he reported concerns that meters used at houses serviced by Respondent contributed to fires. After conducting a hearing, the ALJ issued a D. & O. in which he concluded that Complainant had engaged in protected activity when he questioned the safety of the meters, but that his protected activity was not a contributing factor to the adverse employment actions he suffered. The ARB affirmed.

CITATIONS TO THE RECORD; FACTUAL AVERMENTS WITHOUT SPECIFIC CITATIONS TO RECORD MATERIALS ARE INSUFFICIENT

Complainant challenged several of the ALJ's factual findings, often without citing to the record. Citations to materials without specificity are insufficient because the ARB is not required to scour through hundreds of pages to verify an assortment of facts.

CONTRIBUTING FACTOR; SUBSTANTIAL EVIDENCE SUPPORTED THE ALJ’S FINDING THAT COMPLAINANT’S PROTECTED ACTIVITY WAS NOT A CONTRIBUTING FACTOR TO RESPONDENT’S DECISION TO TERMINATE HIS EMPLOYMENT

To prevail on a PSIA whistleblower complaint, Complainant must demonstrate, by a preponderance of the evidence, that (1) he engaged in protected activity; (2) he suffered an unfavorable or adverse employment action; and (3) the protected activity was a contributing factor to the adverse employment action. Employees may meet their evidentiary burden in establishing a contributing factor with circumstantial evidence, including temporal proximity, pretext, inconsistent application of an employer's policies, and disparate treatment.

The ALJ found that Complainant engaged in protected activity and suffered an unfavorable personnel action, but that Complainant's protected activity was not a contributing factor to that adverse employment action. Specifically, the ALJ determined that any chain of inference that might have existed between Complainant's protected activity and his employment termination was broken by Complainant's intervening unprofessional and disrespectful behavior directed towards his supervisor. The ALJ determined that Respondent terminated Complainant's employment solely because of this behavior.

The ARB affirmed the ALJ. The ARB determined that the record supported the ALJ's finding that Complainant behaved unprofessionally toward his supervisor. The ARB further found that the record substantially supported the ALJ's finding that Respondent took Complainant's safety concerns seriously and investigated them. Thus, the ARB affirmed the ALJ's determination that Respondent terminated Complainant's employment solely because of his unprofessional misconduct and insubordination.

The ARB also rejected Complainant's arguments that circumstantial evidence proved that his protected activity contributed to his adverse action.

First, Complainant contended that the temporal proximity between when he engaged in protected activity and when Respondent terminated his employment established an inference of causation. Complainant began engaging in protected activity on or about June 8, 2019, and continued to do so until Respondent terminated his employment. The ARB found that Complainant did not experience an adverse action until he began behaving in an unprofessional manner. The ARB affirmed the ALJ's finding that Complainant's unprofessional behavior at an August 15, 2019 meeting and in an email he wrote and distributed on September 18, 2019 broke the chain of inference. The ARB further found that the event most proximate to Respondent terminating Complainant's employment was when an outside investigator presented her findings that Complainant's behavior was inconsistent with Respondent's code of ethics to Respondent. Thus, the ARB affirmed the ALJ's finding that any purported chain of inference between Complainant's protected activity and his termination was broken by these intervening acts.

Complainant next contended that Respondent's purported reason for terminating his employment was pretextual for two reasons. First, Complainant contended that Respondent had shifting rationalizations for terminating his employment. Complainant failed to cite to the record in support of his assertion. Contrary to Complainant's assertion, the ARB found that the record substantially supported the ALJ's finding that Respondent terminated Complainant's employment due to Complainant's insubordination and unprofessional treatment of his supervisor. The ARB also found that Complainant's testimony contradicted his argument because Complainant testified that he was informed that Respondent terminated his employment due to his insubordination.

Second, Complainant contended that the timing of his job performance critique also demonstrated pretext. The ARB found that Complainant's supervisor first raised issues with Complainant's performance two months before Complainant began to engage in protected activity. Thus, the Board concluded that Complainant did not demonstrate that the timing of his job performance critique demonstrated pretext.

Next, Complainant contended that Respondent did not follow its policy of progressive discipline. The ALJ did not make findings with respect to a progressive discipline policy and Complainant did not cite to such a policy in the record. To the contrary, testimony demonstrated that disciplinary matters were handled based on the egregiousness of an infraction. Thus, the Board concluded that Complainant failed to establish an inconsistent application of Respondent's policies with respect to his termination.

Finally, Complainant contended that ALJ erred in finding that other employees who were not engaging in protected activity suffered comparable discipline after engaging in similar insubordination. The ARB noted that the ALJ did not make any finding related to disparate treatment nor did Complainant reference another employee or situation involving comparable insubordination. As there was no evidence in the record of such situation, the ARB found that Complainant did not establish that he suffered any disparate treatment.

PRETRIAL ORDERS; THE ALJ DID NOT ABUSE HIS DISCRETION

Complainant contended that the ALJ erred in issuing several pre-trial orders. The ARB reviews procedural and evidentiary rulings under an abuse of discretion standard. ALJs have wide discretion to set or limit the scope of discovery and will be reversed only when such evidentiary and discovery rulings are arbitrary or an abuse of discretion.

Complainant asserted that the ALJ erred in denying his pre-trial motion for the appointment of an expert witness to opine on the sources of the fires that were at the heart of his protected activity. The ARB concluded that the ALJ correctly held that Complainant did not need to prove that there was, in fact, a safety issue to have engaged in protected activity, but instead only that he acted reasonably when he raised safety concerns. The ALJ found that Complainant met his burden and found in Complainant's favor on the issue of protected activity without needing an expert witness. The ARB found that Complainant did not establish that the ALJ's ruling was arbitrary or an abuse of discretion.

Complainant next contended that the ALJ erred in denying his motion for a referral of court-filed discovery documents to the Illinois Commerce Commission. The ARB concluded that Complainant did not explain how the ALJ's denial of Complainant's motion harmed his case or how the ALJ abused his discretion.

Complainant further contended that the ALJ erred in issuing a protective order over documents marked confidential. An ALJ has authority to grant a protective order to protect against undue disclosure of privileged communications or sensitive classified matters. To appropriately do so, the ALJ must determine whether good cause exists to protect the information from being disclosed to the public by balancing the needs for discovery against the need for confidentiality. The ALJ determined that certain information in the case should be subject to protection given its sensitive nature. Even with the protective order, Complainant received all documents in dispute prior to the close of discovery and was allowed to examine and cross-examine witnesses. In addition, by its terms, the protective order remained subject to a request for modification made to the ALJ. The ARB stated that Complainant did not point to anything to show that the protective order prejudiced the preparation for or presentation of his case or that the ALJ abused his discretion in issuing it.

WITNESS EXCLUSION; THE ALJ DID NOT IMPROPERLY EXCLUDE WITNESSES

Complainant contended that the ALJ erred in excluding several witnesses from testifying at the hearing. ALJs are granted broad discretion to control discovery and hearing procedures and will only be reversed upon a showing that the ALJ abused their discretion. The ARB concluded that Complainant failed to offer evidence that the ALJ's decision was either arbitrary or an abuse of his discretion. Rather, that ARB determined that the ALJ provided both parties with an opportunity to call and examine witnesses. In addition, Complainant specifically agreed to exclude a witness he claimed on appeal was improperly excluded. Further, when the ALJ asked Complainant if there were any other witnesses Complainant wanted to call, Complainant replied that there were not.

CREDIBILITY DETERMINATIONS; THE ARB DEFERS TO THE ALJ'S CREDIBILITY DETERMINATIONS

The ARB affirmed the ALJ's credibility determinations, which found Respondent's witnesses to be credible and Complainant's credibility negatively affected by his continued failure to voluntarily disclose a critically important fact. Complainant contended that the ALJ erred in finding Respondent's witnesses to be credible.

The ARB gives considerable deference to an ALJ's credibility determinations and defers to such determinations unless they are inherently incredible or patently unreasonable. Complainant did not point to anything in the record that would demonstrate that Respondent's witnesses were incoherent, implausible, internally inconsistent, or contradicted by external evidence. To the contrary, the ARB found that the ALJ's credibility assessments were supported by substantial evidence in the record.

MOTION TO UNSEAL RECORD

Complainant filed a petition to unseal the record. The ARB found that Complainant's argument was misdirected and without merit. The ALJ did not seal the record in this case, but rather issued a protective order regarding select documents designated as confidential information. The ARB found that Complainant did not demonstrate that the ALJ abused his discretion in issuing the protective order, nor did the record indicate that Complainant had requested modification of the protective order's controls before the ALJ. Thus, as there was no order sealing the record, the ARB denied Complainant's petition.