Administrative Review Board

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

THOMAS J. CREAN,

COMPLAINANT,

v.

ARB CASE NO.

2017-0048

ALJ CASE NO.

2015-CAA-00002

DATE: May 27, 2020

125 W. 76TH REALTY CORPORATION,

RESPONDENT.

Appearances:

For the Complainant:

Thomas J. Crean; pro se; Waterbury, Connecticut

For the Respondent:

Barry G. Margolis, Esq.; Abrams, Garfinkel, Margolis & Bergson, LLP;

New York, New York

Before: Thomas H. Burrell, Acting Chief Administrative Appeals Judge,

Heather C. Leslie and James A. Haynes, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. This case arises under the whistleblower provisions of the Clean

Air Act (CAA), 42 U.S.C. § 7622 (1977), and implementing regulations at 29 C.F.R.

Part 24 (2018). Thomas Crean (Complainant) filed a complaint with the

Occupational Safety and Health Administration alleging that his former employer,

125 W. 76th Street Realty Corporation (Respondent), retaliated against him after he

called the New York City Department of Environmental Protection (DEP) about

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asbestos in Respondent’s boiler room. In a Decision and Order (D. & O.) issued May

31, 2017, following an evidentiary hearing, the presiding Department of Labor

Administrative Law Judge (ALJ) found that Complainant’s report to the DEP was

not a motivating factor in Respondent’s decision to discharge him. D. & O. at 21. For

the reasons discussed below, we summarily affirm the ALJ’s dismissal of Crean’s

complaint.

JURISDICTION AND STANDARD OF REVIEW

The Administrative Review Board (ARB or Board) has jurisdiction to review

the ALJ’s decision pursuant to 29 C.F.R. § 24.110. See also Secretary’s Order No.

01-2020 (Delegation of Authority and Assignment of Responsibility to the

Administrative Review Board (Secretary’s discretionary review of ARB decisions)),

85 Fed. Reg. 13,186 (Mar. 6, 2020). The ARB reviews an ALJ’s findings of fact under

the substantial evidence standard and an ALJ’s conclusions of law de novo. 29

C.F.R. § 24.110(b); see also Rooks v. Planet Airways, Inc., ARB No. 2004-0092, ALJ

No. 2003-AIR-00035, slip op. at 4 (ARB June 29, 2006).

DISCUSSION

To prevail on a whistleblower complaint under the CAA, the complainant

must prove by a preponderance of the evidence that he or she engaged in

whistleblower activity that caused or was a motivating factor in the adverse

employment action taken against the complainant. The failure to prove any one of

these elements necessarily requires dismissal of a whistleblower complaint. If the

complainant meets his or her burden of proof, the respondent may nevertheless

avoid liability if it proves by a preponderance of the evidence that it would have

taken the same unfavorable personnel action in the absence of the complainant’s

protected behavior. Mugleston-Utley v. EG&G Defense Materials, Inc., ARB No.

2012-0025, ALJ No. 2009-CAA-00009 (ARB May 8, 2013).

Complainant alleged that he engaged in protected activity when he reported

asbestos in Respondent’s boiler room to the DEP. The parties do not dispute that

Complainant was subject to an adverse employment action, specifically, the

termination of his employment. Nevertheless, the ALJ found that Complainant

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failed to prove by a preponderance of the evidence that his alleged protected activity

caused or was a motivating factor in the employment termination.1 D. & O. at 24.

Moreover, the ALJ found that Respondent established that it would have

terminated Complainant’s employment even if he had had not engaged in protected

activity. Id. at 27.

In finding that Complainant failed to establish that his alleged protected

activity was a motivating factor in the decision to terminate his employment, the

ALJ rejected Complainant’s contentions after comprehensively reviewing the

extensive evidence of record. In sum, the ALJ was persuaded, based upon the

preponderance of the evidence, that Complainant was terminated because of his

unwillingness to perform his job duties and his hostile and aggressive behavior. Id.

at 26.

The ALJ was also persuaded that the decision to terminate Complainant was

made well before his report to the DEP. Id. Here, the ALJ relied upon Respondent’s

property manager and board of directors meetings with Attorney Peter Finn,

Respondent’s decision to offer Complainant a buyout/settlement offer, and

Respondent’s property manager and Complainant’s conversation regarding

Complainant’s retirement plans the morning before his report to the DEP. Id. at 27.

On appeal, Complainant asserts that his report to the DEP was the

motivating factor behind his termination. Having reviewed the evidentiary record

as a whole, and upon consideration of the parties’ briefs on appeal, we conclude that

substantial evidence supports the ALJ’s findings of fact that Complainant failed to

prove that his report to the DEP was a motivating factor in the termination of his

As we are affirming the ALJ’s findings of fact that Complainant failed to

prove that his report to the DEP was a motivating factor in the termination of his

employment and alternatively that Respondent would have terminated Complainant in the

absence of protected activity, all other arguments are rendered moot and we make no

further determinations on the ALJ’s protected activity analysis.

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employment and alternatively that Respondent would have terminated

Complainant in the absence of protected activity. Since Complainant has failed to

demonstrate that the ALJ committed a reversible error, we AFFIRM the ALJ’s

dismissal of the complaint.

SO ORDERED.