Bush v. Donato’s Pizza, ARB No. 2024-0009, ALJ No. 2022-TAX-00006 (ARB Dec. 30, 2025) (Decision and Order)

SUMMARY DECISION; NO GENUINE ISSUE OF MATERIAL FACT; CONTRIBUTING FACTOR

In Bush v. Donato’s Pizza, ARB No. 2024-0009, ALJ No. 2022-TAX-00006 (ARB Dec. 30, 2025), the ARB affirmed the ALJ’s Order Granting Summary Decision in Favor of Respondent; Order of Dismissal (Order Granting Summary Decision).

Complainant was employed as a delivery driver for Respondent from September 30, 2015, until February 23, 2019, when Respondent terminated his employment.

On July 2, 2019, Complainant filed a complaint with the EEOC alleging age discrimination violations by Respondent, including his termination. On June 29, 2021, the EEOC closed its investigation without any findings and issued a Dismissal and Notice of Rights. Complainant did not file a lawsuit against Respondent following this decision. Instead, on or about September 27, 2021, Complainant filed a complaint with the IRS alleging violations of federal tax law by Respondent. Then, on October 6, 2021, Complainant sent a letter to Respondent alleging various violations of federal tax law, notifying Respondent that he filed a complaint with the IRS, and requesting to be rehired by Respondent or he would file an OSHA complaint under the Taxpayer First Act (TFA).

Respondent did not rehire Complainant. On March 21, 2022, Complainant filed an OSHA complaint alleging that Respondent failed to rehire him in retaliation for protected conduct under the TFA. OSHA dismissed the complaint, and Complainant filed objections with the OALJ.

Before the OALJ, both parties filed timely motions for summary decision and responses to the motions. On November 21, 2023, the presiding ALJ issued an Order Granting Summary Decision concluding that Complainant failed to establish a genuine issue of material fact that his protected activities were a contributing factor in Respondent’s no-rehire decision. Complainant timely filed a Petition for Review with the ARB.

LEGITIMATE NON-DISCRIMINATORY REASONS FOR ADVERSE ACTION; INTERVENING EVENT AND INELIGBLE FOR REHIRE

The ARB began its analysis by reiterating the summary decision standard and noting that a complainant may meet its burden for the contributing factor element with circumstantial evidence. Circumstantial evidence may include, but is not limited to, temporal proximity, inconsistent application of an employer’s policies, pretext, shifting explanations by the employer, or antagonism.

Upon reviewing the ALJ record, the ARB acknowledged that Complainant relied solely upon the temporal proximity between his not being rehired by Respondent and the protected activity of submitting an IRS complaint and informing Respondent of that fact in the October 6, 2021 letter. The ARB agreed that the record demonstrated temporal proximity between alleged protected activities and Respondent’s no-rehire decision. However, the ARB recognized that the causal inference that may be derived from temporal proximity may be severed by a legitimate intervening event, especially one undertaken by the complainant.

First, the ARB determined that the content of the October 6 letter operated as both an alleged protected act and an intervening event. According to the ARB, the October 6 letter served to: (1) notify Respondent of the IRS complaint and alleged IRC violations; and (2) provide Respondent an ultimatum—rehire Complainant within five business days or else he would pursue his rights under the TFA. The ARB concluded that this ultimatum represented an intervening event as it was a new and independent action on the part of Complainant—a direct demand to Respondent for reemployment or Respondent would face a complaint with OSHA.

Second, the ARB agreed with Respondent that Complainant was ineligible for rehire because Complainant had been previously terminated for acting in a belligerent, insubordinate, disruptive, and unprofessional manner. The ARB acknowledged that where a respondent asserts legitimate, non-discriminatory reasons for its actions, a complainant can create a genuine issue of fact by pointing to specific facts or evidence that, if believed, could discredit the respondent’s reasons or show that the protected activity was also a contributing factor, even if the respondent’s reasons are true. However, in the present case, Complainant provided no specific facts or evidence that created a genuine issue of fact that his alleged protected activities contributed to the no-rehire decision and/or would discredit Respondent’s explanation that he was ineligible for rehire. The ARB further asserted that a complainant may not rely on its whistleblower status to avoid an adverse action imposed for legitimate, non-discriminatory reasons.

Accordingly, the ARB affirmed the ALJ’s Order Granting Summary Decision.

CONCURRENCE; CAUSAL VALUE ATTIBUTED TO TEMPORAL PROXIMITY SHOULD BE CLOSELY SCRUTINIZED IF BAD FAITH AND ABUSE PRESENT; ARTIFICALLY TIMED PROTECTED ACTIVITY

One ARB Member concurred with the decision’s result and analysis, but wrote separately to highlight a few points about Complainant’s theory of the case and how it intersects with traditional legal concepts.

Specifically, the Member focused on the ability of a former employee fired for cause to unsuccessfully litigate the termination and then turn around and litigate a failure to rehire, which is a paradox as it effectively gives a complainant a second bite at the apple. In the present case, Complainant before the ALJ and on appeal, argued for a hearing with the express purpose of relitigating his termination for cause.

The Member then highlighted similar efforts pursued in prior cases by a litigant against prospective and former employers for decades under the Energy Reorganization Act. The Member advised that these cases present a special situation that requires close scrutiny on the part of the factfinder, in which a complainant could potentially repackage a deficient termination decision and litigation case into a much more complex case in the form of failure to rehire. In addition to bypassing nonretroactivity, a complainant could rehabilitate an untimely case following termination for cause into a timely failure to rehire, and/or alternatively, change causation dynamics via temporal proximity by creating an inference of causation to avoid summary decision.

In this case, Complainant expressly packaged his rehire application with a complaint filed with the IRS to artificially design strong temporal proximity between protected activity and adverse action. The Member rejected this effort and noted that when dealing with a rehire attempt such as this, the causal value attributed to temporal proximity should be closely scrutinized for bad faith and abuse. The Member concluded by reiterating the ALJ’s statement, “[l]odging a complaint only in order to exact demands meets neither the spirit nor the letter of the TFA.”

Saliba v. American Airlines, Inc., ARB No. 2025-0094, ALJ No. 2025-AIR-00046 (ARB Dec. 30, 2025) (Decision and Order Denying Interlocutory Appeal)

In Saliba v. American Airlines, Inc., ARB No. 2025-0094, ALJ No. 2025-AIR-00046 (ARB Dec. 30, 2025), the ARB denied Complainant’s Petition for Review of the Chief Administrative Law Judge’s denial of his motion to remand his AIR21 claim to the Occupational Safety and Health Administration (OSHA) and to compel OSHA to vacate its decision, file and notify Respondent of allegations he contended OSHA omitted from his complaint, and conduct a new investigation.

ACCEPTANCE OF PETITION FOR REVIEW; NON-EFFECTUATION OF SERVICE BY MEANS ALTERNATIVE TO THE ELECTRONIC FILING SERVICE DURING THE GOVERNMENT SHUTDOWN

Complainant filed his brief through the ARB’s Electronic Filing and Service (EFS) system during the government shutdown. Respondent contended that Complainant did not effectuate service of his brief upon Respondent by means alternative to EFS per the ARB’s notice to parties who filed via EFS during the shutdown. Respondent argued that the ARB should deny Complainant’s Petition for Review for this reason alone. The ARB declined to deny Complainant’s petition solely for this reason. It noted that Respondent had not argued Complainant’s failure prejudiced it by interfering with its ability to submit its brief or to frame and present its defense to the ARB, and that Respondent proceeded to argue in its response brief that Complainant’s interlocutory appeal before the ARB did not meet the collateral order exception. For these reasons, the ARB declined to deny the Petition for Review for insufficient or untimely service of Complainant’s brief.

INTERLOCUTORY APPEAL; COLLATERAL ORDER EXCEPTION NOT SATISFIED

Complainant moved for the Chief ALJ to remand to OSHA to vacate its decision and compel OSHA to perform what he alleged was a nondiscretionary duty to issue a new letter of investigation, including allegations he contended were omitted from his AIR21 complaint, and to conduct a new investigation of all his allegations with new investigators.

The Chief ALJ denied Complainant’s motion, finding the AIR21 implementing regulations did not allow ALJs to remand to OSHA to conduct further investigation. Complainant filed a motion for reconsideration. Before the Chief ALJ decided the motion for reconsideration, Complainant filed an interlocutory appeal with the ARB; before filing his Petition for Review with the ARB, Complainant did not request that the Chief ALJ certify the issues raised for interlocutory appellate review.

The ARB analyzed whether the Chief ALJ’s order satisfied the collateral order exception to the traditional finality rule. To meet the collateral order exception, the moving party must establish that the appealed order: (1) conclusively determines the disputed question; (2) resolves an important issue which is completely separate from the merits of the action; and, (3) would be effectively unreviewable on appeal from a final judgment.

ORDER DID NOT CONCLUSIVELY DETERMINE DISPUTED QUESTION

The ARB found that Complainant had not demonstrated that the Chief ALJ’s order denying his motion for a remand to OSHA conclusively determined the disputed question. The ARB noted that the matter had not yet been assigned to a presiding ALJ and was still in the preliminary phase at the hearing level. The ARB also found that the implementing regulations of AIR21 and other whistleblower protection provisions preclude remand for the completion of an investigation or for additional findings on the basis that a determination to dismiss was made in error and that if there is otherwise jurisdiction, the ALJ is to hear the case on the merits. The ARB thus found that the ALJ soundly denied Complainant’s motion for remand to OSHA.

The ARB concluded that the regular course of the hearing process allows for the failures or omissions which may have occurred during the receipt or investigation of the complaint at OSHA to be cured at the hearing stage via an amended complaint which supplements the OSHA-recorded allegations, as well as further investigation into the merits of the complaint through the discovery process, the submission of additional evidence, and de novo review. The ARB explained that it interprets adjudication as the ordinary mechanism by which respondents would be notified of fleshed out allegations and through which additional investigation of complaints could be achieved. It concluded therefore that the Chief ALJ’s order did not conclusively determine which allegations would constitute the complaint nor the Secretary’s investigation of or examination of any evidence concerning the allegations at the hearing level.

ORDER NOT EFFECTIVELY UNREVIEWABLE ON APPEAL FROM FINAL JUDGMENT

The ARB concluded that Complainant had also not shown that the Chief ALJ’s order denying his motion to remand to OSHA was effectively unreviewable on appeal from a final judgment. It found that Complainant could appeal the Chief ALJ’s denial of his motion to remand to OSHA to the ARB if he continued to believe the hearing process failed to account for all his allegations against Respondent once the presiding ALJ rendered a final decision after a hearing on the merits.

It was therefore unnecessary for the ARB to evaluate whether the Chief Judge’s order denying the motion to remand to OSHA resolved an important issue completely separate from the merits of the action. The ARB thus denied Complainant’s petition for interlocutory review.

McQuay v. Lone Tree Services, Inc., ARB No. 2025-0053, ALJ No. 2024-PSI-00003 (ARB Dec. 19, 2025) (Order of Dismissal)

DISMISSAL OF COMPLAINT; TIMELY NOTICE OF INTENT TO FILE FEDERAL DISTRICT COURT APPEAL

In McQuay v. Lone Tree Services, Inc., ARB No. 2025-0053, ALJ No. 2024-PSI-00003 (ARB Dec. 19, 2025), the ARB dismissed Complainant’s administrative complaint because he filed an original de novo complaint in the United States District Court for the District of Colorado.

Huffman v. Swift Prepared Foods, ARB No. 2025-0077, ALJ Nos. 2024-FDA-00013, 2025-FDA-00003 (ARB Dec. 18, 2025) (Decision and Order Dismissing Appeal)

ORDER OF DISMISSAL; APPEAL DISMISSED BECAUSE COMPLAINANT REFUSED TO PARTICIPATE IN PROCEEDINGS

In Huffman v. Swift Prepared Foods, ARB No. 2025-0077, ALJ Nos. 2024-FDA-00013, 2025-FDA-00003 (ARB Dec. 18, 2025), the ARB dismissed Complainant’s appeal because he refused to participate in the proceedings.

The ALJ issued a D. & O. granting the Respondent’s Motion for Summary Decision and dismissing Complainant’s complaint because Complainant failed to proffer proof that he suffered an unfavorable or adverse personnel action.

On August 4, 2025, Complainant filed a single-page, handwritten Petition for Review with the ARB. Complainant’s Petition did not address the ALJ’s determination that he did not produce evidence that he suffered an unfavorable personnel action. Instead, Complainant vaguely alleged that he “object[ed] to all findings based on fraud,” that “[t]his Judge and her boss have allowed changed or altered documents into the court record,” that OSHA did not collect certain information he asked OSHA to collect, that the threats against him were captured on video, that he did not receive certain discovery from the attorney for Respondent’s parent company, JBS, and that “THIS WAS AND IS FRAUD PAY TO PLAY DEPARTMENT OF LABOR.” Complainant did not offer or cite any evidence in support of any of the allegations made in his Petition for Review.

The ARB issued a briefing order directing Complainant to file an Opening Brief by September 9, 2025, providing specific instructions regarding the form of the brief, and specifying how Complainant was required to submit the brief. The ARB specifically stated that email filings would not be accepted.

Complainant did not file an Opening Brief as ordered. On September 22, 2025, Respondent filed a Response Brief, noting that Complainant had failed to file an Opening Brief and responding to Complainant’s Petition for Review. Respondent argued that Complainant failed to challenge or controvert the ALJ’s conclusion that Complainant failed to produce evidence that he suffered an adverse personnel action, and argued that his allegation of unspecified “fraud” was meritless.

Complainant then sent 24 emails to the ARB between September 22, 2025, and October 7, 2025, covering a range of subjects, including, among others, that the DOL was engaged in “fraud.” Complainant also explicitly stated in some of the emails that he did not intend to participate in the proceedings unless the FBI became involved.

On November 20, 2025, the ARB issued an Order to Show Cause to Complainant. The ARB stated Complainant’s emails did not comply with the Briefing Order, did not constitute an Opening Brief, and would not be considered in this appeal. The ARB warned Complainant that it has the authority to issue sanctions, including dismissal, for a party’s failure to comply with the ARB’s orders and briefing requirements. Accordingly, the ARB ordered Complainant to file an opening brief by December 4, 2025, as well as a written brief explaining why the ARB should not dismiss his appeal for failing to file an Opening Brief as ordered. The ARB stated that Complainant’s Opening Brief must comply with the ARB’s Briefing Order and warned that if the ARB did not receive Complainant’s response to the Order to Show Cause and the Opening Brief by December 4, 2025, the ARB may dismiss the appeal without further notice to the parties.

Once again, rather than file a written brief as ordered, Complainant sent another eight emails to the ARB. Most of the emails related to or forwarded USPS tracking information regarding the copy of the Order to Show Cause sent to Complainant by the ARB. The final email, sent on December 9, 2025, stated that Complainant was returning the ARB’s Order to Show Cause unopened and reiterated that Complainant believed there was a “pay to play” scheme at the Department of Labor, that evidence had been destroyed, altered, or covered up, and that he “OBJECT[S] TO THIS LETTER AND RETURN IT BASED ON THE ABOVE FACTS AND A FEW OTHERS.”

The ARB determined Complainant’s myriad emails did not comply with the Briefing Order, and therefore the ARB dismissed Complainant’s appeal. The ARB stated that it had twice instructed Complainant to file an Opening Brief and warned Complainant that failing to file an Opening Brief could result in dismissal of his appeal. Nevertheless, Complainant failed to file an Opening Brief. In fact, he explicitly stated that he did not intend to participate in these proceedings without the involvement of the FBI and returned the Order to Show Cause unopened. While the ARB stated that it was mindful of Complainant’s pro se status, and while it typically gives certain latitude to pro se litigants, Complainant’s repeated failure to comply with the ARB’s Orders, coupled with his expressed intention not to participate in this appeal and comply with the ARB’s orders, compelled the ARB to dismiss his appeal.

Furthermore, the ARB determined that even if it construed Complainant’s emails, either individually or collectively, as an “Opening Brief,” it would still dismiss his appeal. The ALJ dismissed Complainant’s complaint because he failed to produce evidence that he suffered an unfavorable or adverse personnel action. Complainant made no effort to address the ALJ’s conclusion in his Petition for Review or any of his emails. The ARB also rejected Complainant’s various collateral attacks on the D. & O. and the administrative process as a whole. Each of Complainant’s allegations were vague and conclusory and he failed to point to any record evidence to support or substantiate any of these serious accusations.

Liow v. Westrock Co., ARB No. 2025-0081, ALJ No. 2019-SOX-00054 (ARB Dec. 16, 2025) (Decision and Order Approving Settlement and Dismissing Petition for Review with Prejudice)

VOLUNTARY DISMISSAL; APPROVAL OF SETTLEMENT

In Liow v. Westrock Co., ARB No. 2025-0081, ALJ No. 2019-SOX-00054 (ARB Dec. 16, 2025), the ARB approved Complainant's Motion to Withdraw Petition for Review. Before the ARB, Complainant filed a Notice of Settlement; Motion to Withdraw Petition for Review, which included a copy of the proposed settlement.

The ARB approved the parties’ settlement agreement as fair, adequate, and reasonable, and not in contravention of the public interest. The ARB noted that this determination was restricted only to the SOX case over which it had jurisdiction. The ARB also noted that the parties’ submissions, including the settlement agreement, remained subject to the Freedom of Information Act. The ARB further noted that it construed the language of the agreement’s confidentiality clause as allowing Complainant to communicate with or provide information to state and federal authorities about suspected violations of law involving Respondent. Lastly, the ARB construed the parties’ provision that the agreement shall be interpreted under the laws of the state of Illinois as not limiting the authority of the Secretary of Labor, the ARB, and any federal court regarding any issue arising under the SOX.

Accordingly, the ARB approved the settlement agreement and dismissed the appeal with prejudice.