U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

RHONDA KIRSCHMANN,

COMPLAINANT,

ARB CASE NO. 2023-0002

ALJ CASE NO. 2021-NTS-00006

ALJ PAMELA A. KULTGEN

v.

DATE: February 14, 2024

HAMPTON ROADS TRANSIT,

RESPONDENT.

Appearances:

For the Complainant:

Rhonda Kirschmann; Pro Se; Chesapeake, Virginia

For the Respondent:

Jeffrey A. Hunn, Esq.; Pender & Coward, P.C.; Virginia Beach, Virginia

Before HARTHILL, Chief Administrative Appeals Judge, WARREN and

ROLFE, Administrative Appeals Judges

DECISION AND ORDER

ROLFE, Administrative Appeals Judge:

This case arises under the employee protection provisions of the Surface

Transportation Assistance Act of 1982 (STAA), as amended and the National

Transit Systems Security Act (NTSSA) (collectively, “the Acts”).1 Complainant

Rhonda Kirschmann (Complainant or Kirschmann) filed a complaint against

49 U.S.C. § 31105(a), as implemented by 29 C.F.R. Part 1978 (2023) (STAA);

6 U.S.C. § 1142(a), as implemented by 29 C.F.R. Part 1982 (2023) (NTSSA).

1

2

Hampton Roads Transit (Respondent or HRT), alleging it terminated her

employment for engaging in protected activity. On September 29, 2022, a United

States Department of Labor Administrative Law Judge (ALJ) granted summary

decision for Respondent, holding that viewing the claim in the light most favorable

to Complainant, she could not raise a genuine issue of material fact that would

require a hearing and that Respondent thus was entitled to judgment as a matter

of law.

Concluding Complainant has not met her basic burden on appeal to identify

errors in the ALJ’s decision and that, independently, Complainant cannot as a

matter of law demonstrate she engaged in protected activity, the Board affirms the

ALJ’s decision.

BACKGROUND

On April 21, 2008, Respondent hired Complainant as a bus operator. On

February 13, 2017, Respondent terminated Complainant’s employment after she

violated its policy on personal conduct and conduct toward passengers.2

Prior to termination of her employment, Complainant had accrued an

extensive array of progressive disciplinary charges and escalating levels of

discipline under HRT’s Personal Conduct and Conduct Toward Passengers and

Employees Policies, culminating in the violation of a last chance agreement. From

October 27, 2008, through November 2012, Complainant received thirteen employee

performance counseling notices, detailing numerous violations of HRT rules and

policies, and repeated written reminders and reprimands.3

On December 6, 2012, Complainant received a six-day suspension and twoday refresher training for two Level IV violations of HRT’s conduct policy when she

failed to pick up passengers at a bus stop, aggressively ripped a piece of paper, and

Decision & Order (D. & O.) at 7, 10. HRT’s Bus Transportation & Maintenance

Rules & Regulations (Rules and Regulations) required employees to be respectful and civil

at all times while on duty (Rule 1.6) and operators were required to be professional and

courteous in both speech and manner toward passengers at all times (Rule 8.1). Respondent

Hampton Roads Transit’s Memorandum of Law in Support of Its Motion for Summary

Decision (June 9, 2022) (HRT Memorandum of Law), Exhibits (Exs.) 4-7. The Rules and

Regulations created an escalating level of discipline for different types of infractions with

Level I offenses being the lowest level of progressive discipline and Level V being the

highest level of progressive discipline (first offense is listed as termination). The Rules and

Regulations provide that first Level IV violations, like those Complainant was charged

with, result in a five-day suspension or termination, and second Level IV violations result

in termination (Rule 13.4). HRT Memorandum of Law, Ex. 11.

2

3

HRT Memorandum of Law, Ex. 12.

3

shoved a clipboard at a supervisor. Between December 6, 2012, and January 13,

2016, she received an additional eleven instances of discipline ranging from verbal

to written warnings. In May 2016, Complainant received a five-day suspension for

posting a picture of a passenger on her Facebook page with the caption: “Mouthy

dude on the route 3. Friday the 13th brings out the cooks [sic] on the bus.”4

In June 2016, Respondent suspended Complainant for five days and issued

her a last chance agreement after receiving another customer complaint regarding

inappropriate conduct. Despite the agreement, Complainant generated additional

customer complaints on September 7, and September 26, 2016, respectively,

resulting in a two-day suspension and written reprimand. Respondent terminated

Complainant’s employment after receiving another customer complaint on January

29, 2017, finding Complainant’s conduct violated the last chance agreement.5

On March 4, 2017, Kirschmann filed a complaint with the Occupational

Safety and Health Administration (OSHA) against HRT alleging unlawful

discrimination in violation of the STAA and the NTSSA. Complainant’s OSHA

complaint outlined five instances of alleged protected activity:

1. Transit passengers were interfering with operator’s 10-39 break at

the end of the line two incident dates: September 7, 2016 and

January 29, 2017;

2. Operators were operating while sick, even though sick time was

available;

3. Safety vests were distributed inequitably;

4. There was a route change without the planning process and that

Respondent was not facilitating the safe transfer of passengers,

incident date January 29, 2017; and

5. “Linda’s tire on the 23.”

On April 22, 2021, OSHA issued its findings, determining no reasonable cause

existed to believe Respondent violated the STAA or the NTSSA.6

4

The references in this paragraph are to HRT Memorandum of Law, Exs. 13-15.

5

The references in this paragraph are to HRT Memorandum of Law, Exs. 17-20, 24.

The references in this paragraph are to HRT Memorandum of Law at 2-3; D. & O.

at 10-11.

6

4

On May 21, 2021, Complainant requested a hearing before the Office of

Administrative Law Judges. Upon the ALJ’s issuance of a scheduling order, both

parties filed cross-motions for summary decision and responses: Complainant

argued the five incidents identified in her OSHA complaint constituted protected

activity; Respondent countered they did not -- but even if they somehow could be

viewed as protected activity, Respondent argued they indisputably played no role in

her discharge for violating the last chance agreement.7

After viewing the parties’ submissions on summary decision in the light most

favorable to Complainant, the ALJ found as a factual matter it was not reasonably

disputable that HRT’s “decision to terminate Complainant’s employment was based

on [anything other than her] violation of the Last Chance Agreement and [her]

disciplinary history, which included multiple Level IV violations in the previous

year[.]” In addition, the ALJ found it indisputable that Complainant “did not

provide any specific information regarding the existence of a hazardous safety or

security condition” to HRT, and that any complaints of an OSHA violation or

“misappropriation of funding” to HRT solely occurred in an email Complainant sent

to her union and HRT management “after she was terminated.”8

Turning to whether any of the incidents she identified could legally amount

to protected activity, the ALJ rejected Complainant’s argument that the STAA and

NTSSA inherently protect the simple act of taking a break. The ALJ found taking a

break -- or complaining about passengers interfering with her taking a break -- “not

tantamount to reporting a hazardous safety or security condition,” or that either

activity could reasonably be believed to be a violation of law regarding public

safety.9

Regarding Complainant’s assertion that she worked with bronchitis on

January 29, 2017, the ALJ acknowledged that under certain circumstances, an

operator working while sick could constitute a hazardous safety condition, and

reporting that condition would qualify for legal protection. But in this case, the ALJ

found Complainant failed to put forth any evidence that she subjectively believed,

or that a reasonable person in her situation could believe, that operating a bus with

bronchitis posed such a condition.10

7

The references in this paragraph are to D. & O. at 1-3, 10-11.

8

The references in this paragraph are to Id. at 10-11, 16.

The references in this paragraph are to Id. at 13-14. The ALJ noted that

Complainant’s filings were very difficult to read and follow and she did not connect her

complaints or the disciplinary actions taken against her to protected, or potentially

protected, activity. Id. at 13, n.3.

9

10

The references in this paragraph are to Id. at 15-16.

5

The ALJ further found Complainant never raised any complaints regarding

safety vests, route changes, or “Linda’s tire” to any decisionmaker prior to her

termination. The ALJ thus concluded Respondent could not have terminated her

employment for raising these issues with OSHA even if they amounted to protected

activity.11

Finally, though not referenced in her OSHA complaint, the ALJ assessed

whether any of Complainant’s references to reporting wrongdoing to federal

authorities could create the perception in Respondent that Complainant engaged, or

was about to engage, in protected activity. On October 11, 2016, Complainant met

with HRT representatives and stated she was “going to the federal building.”

Without more, the ALJ held, HRT had no reason to believe she intended to report a

hazardous safety condition or to provide information about a violation of law.12

Similarly, the ALJ considered the perception of protected activity as it

related to comments on a video played at a February 13, 2017 disciplinary hearing.

In the video, Complainant stated to a passenger, “we can have someone call OSHA,”

“I’ll be talking to OSHA,” they may “take our funding,” and “you’ll be blessed when

they take our funding.” The ALJ found simply raising “OSHA” to a passenger could

not automatically give rise to a perception in Respondent that Complainant

engaged in protected activity, and that Complainant did not otherwise meet her

burden to establish the element.13

The ALJ thus concluded Complainant’s response to Respondent’s properly

supported motion for summary decision failed to raise a genuine issue of material

fact that would entitle her to a hearing, and she granted Respondent’s motion. On

October 9, 2022, Complainant filed a timely petition for review of the ALJ’s order.14

11

The references in this paragraph are to Id. at 16-17.

12

The references in this paragraph are to Id. at 17.

13

The references in this paragraph are to Id. at 18.

The references in this paragraph are to Id. at 13; see generally Petition for

Rehearing by the Administrative Review Board.

14

6

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the Board authority to issue final

agency decisions under the STAA and NTSSA and its implementing regulations at

29 C.F.R. Part 1978.15 The ARB reviews de novo an ALJ’s grant of summary

decision by the same standard that governs the ALJ’s initial decision: summary

decision is appropriate if “the pleadings, affidavits, [and other discovery materials]

show that there is no genuine issue as to any material fact” and a party therefore is

entitled to judgment as a matter of law.16

For a moving party like HRT to prevail it must show “the nonmoving party

‘fail[ed] to make a showing sufficient to establish the existence of an element

essential to the party’s case, and on which that party will bear the burden of proof

at trial.’”17 A moving party thus may prevail by pointing to the “absence of evidence

proffered by the nonmoving party.”18 The party opposing the motion, in turn, may

not rest upon mere allegations or denials of such pleading; rather, it must set forth

specific facts establishing a rational trier of fact could determine the existence of a

genuine issue of fact for determination at a hearing.19

DISCUSSION

1. Complainant Has Failed to Meet Her Burden to Adequately Brief her

Appeal

As a threshold matter, a petition for the Board’s review must identify “the

legal conclusions or orders to which [a petitioner] object[s].”20 Further, once the

Board accepts the appeal, the parties in their briefs must establish the factual basis

of their claims and defenses with citations to the record and relevant legal authority

in support of the relief they request. Where a party completely fails to meet these

minimum briefing requirements, and instead relies upon bare conclusions, the party

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. 13186 (Mar. 6, 2020).

15

Strohl v. YRC, Inc., ARB No. 2010-0116, ALJ No. 2010-STA-00035, slip op. at 2

(ARB Aug. 12, 2011) (citation omitted).

16

Menafee v. Tandem Transp. Corp., ARB No. 2009-0046, ALJ No. 2008-STA-00055,

slip op. at 4 (ARB Apr. 30, 2010) (citing Bobreski v. U.S. EPA, 284 F. Supp. 2d 67, 73

(D.D.C. 2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986))).

17

18

Id. (citing Bobreski v. U.S. EPA, 284 F. Supp. 2d at 73).

19

See 29 C.F.R. § 18.72(c); see Scott v. Harris, 550 U.S. 372, 380 (2007).

20

29 C.F.R. § 1978.110(a); 29 C.F.R. § 1982.110(a).

7

forfeits its position on appeal.21 And while the Board enforces relaxed briefing

standards for unrepresented litigants such as Complainant, those standards are not

nonexistent: “Despite the fact that pro se filings are construed liberally, the Board

must be able to discern cogent arguments . . . .”22

As Respondent points out, Complainant has submitted a fifty-page brief,

little of which appears to relate to the ALJ’s decision. Complainant does not

coherently support her assertions with citation to record evidence or relevant legal

authority. Complainant’s pleadings thus are per se insufficient to support her

burden to demonstrate that the ALJ erred. Nevertheless, given Complainant’s

unrepresented status, the Board in this case will still independently review the

ALJ’s decision to determine whether it accords with the law.

For the following reasons, we find that it does.

2. The ALJ Properly Granted Summary Decision Concluding Complainant

Failed to Raise a Genuine Issue of Material Fact that She Engaged in

Protected Activity

To prevail on a claim of retaliation, the complainant must prove that (1) she

engaged in protected activity under the STAA and NTSSA; (2) Respondent

subjected her to an unfavorable personnel action; and (3) her protected activity was

a contributing factor in the unfavorable personnel action.23

We conclude, as a matter of law, that Complainant has not, and cannot,

establish the first element with regard to her allegations of protected activity.

Shah v. Albert Fried & Co, ARB No. 2020-0063, ALJ No. 2019-SOX-00015, slip op.

at 7 (ARB Aug. 22, 2022); Pajany v. Capgemini, Inc., ARB No. 2019-0071, ALJ No. 2019LCA-00015, slip op. at 3 (ARB Jan. 25, 2021); Hasan v. Sargent & Lundy, ARB No. 20050099, ALJ No. 2002-ERA-00032, slip op. at 8-9, 9 n.39 (ARB Aug. 31, 2007) (quoting Cruz v.

Am. Airlines, Inc., 356 F.3d 320, 333-34 (D.C. Cir. 2004) (citations omitted)) (“Although we

may discern a hint of such an argument after a close reading of plaintiff’s reply brief (albeit

not a hint supported by both citations to authority and argument, as is required by Federal

Rule[s] of Appellate Procedure 28(a)(9)), plaintiff was required to present, argue, and

support this claim in his opening brief for us to consider it. We are not ‘self-directed boards

of legal inquiry and research, but essentially . . . arbiters of legal questions presented and

argued by the parties.”’).

21

22

Hasan, ARB No. 2005-0099, slip op. at 8 (citations omitted).

29 U.S.C. § 31105(a), (b)(1) (incorporating the AIR21 legal burdens of proof); 6 U.S.C.

§ 1142(a), (b), (c)(2)(B)(iii) (a determination that a violation has occurred may only be made

“if the complainant demonstrates that any behavior described in subsection (a) or (b) was a

contributing factor in the unfavorable personnel action alleged in the complaint.”).

23

8

A. Bathroom breaks

Among other things, the STAA generally prohibits discrimination against

employees who make complaints related to commercial motor vehicle safety or

security, refuse to operate unsafe vehicles, and accurately report of hours of duty.24

Among other things, the NTSSA similarly prohibits discrimination against

employees who report or provide information relating to public transportation

safety or security.25 NTSAA also prohibits discrimination against employees who

report or provide information relating to fraud, waste, or abuse of federal funds

intended to be used for public transportation safety or security.26

Taking a break can in some instances implicate the sort of safety issue that

may constitute protected activity under the STAA or NTSSA. For example, the

Fourth Circuit, in which jurisdiction this case arises, has recognized under the

STAA the “driver fatigue rule,” which prohibits a driver from operating a

commercial motor vehicle while suffering from an unsafe level of fatigue.27

But this is not a driver fatigue case. Before the ALJ, Complainant did not

contend that she was suffering from fatigue, nor did she contend that her hours on

the road exceeded safety protocols, nor did she allege it raised any other safety

concern. Instead, Complainant simply contended the mere act of taking a break was

protected activity. We agree with the ALJ, however, that merely taking a break or

complaining about passengers interfering with a break without more, do not, as a

matter of law, raise the type of safety concern the STAA or NTSSA are designed to

protect or that Fourth Circuit precedent recognizes under the STAA.28

24

49 U.S.C. § 31105(a).

25

6 U.S.C. § 1142(a)(1).

26

Id.

27

Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 984 (4th Cir. 1993).

Id. at 984, 985 (finding the STAA is designed, in part, to encourage “safer driving by

prohibiting discipline of drivers who refuse to operate their vehicles under dangerous or

illegal conditions” and that a violation occurred where the Secretary determined a longhaul trucker stopped his truck “for reasons of fatigue,” that his employer disciplined him for

taking the break, and that the employer’s policies encouraging drivers to take a break did

not protect the employee.). By comparison, Complainant has not alleged or established

similar behavior by HRT. In its absence, she cannot establish that taking a break alone

constitutes a protected activity under the statute and precedent.

28

9

B. Operating a bus while suffering from bronchitis

Complainant’s allegation that on January 29, 2017, she operated a bus while

suffering from bronchitis which she later reported during her February 13, 2017

termination meeting fairs no better. Complainant contended before the ALJ that

she engaged in protected activity under the STAA and NTSSA because her behavior

constituted a “hazard” and she believed that “if she had called in sick on January

29, 2017, she would have been fired.”29 Except HRT vetted the decision to terminate

Complainant in the weeks prior to the meeting and as such its determination

predates her disclosure she worked while sick.30

Moreover, as the ALJ correctly found, the allegation similarly lacks a

fundamental transportation safety (whether commercial motor vehicle safety under

the STAA or public transportation safety under the NTSSA) concern. While the ALJ

noted that there could be certain circumstances where working while sick could

pose a safety risk under the STAA or NTSSA (and we again agree), we further agree

Complainant in this case failed to put forth any actual evidence that she

subjectively believed, or that a reasonable person in her situation could believe,

operating a bus with bronchitis posed such a hazardous safety condition.31

Indeed, Complainant’s entire theory of liability on this ground remains

wholly speculative. It is undisputed that Complainant did not refuse to drive

because she was sick, and that she did not complain she was too sick to drive or

complain that driving would be dangerous in her condition. In response to HRT’s

properly supported motion for summary decision, Complainant did not put forth

any evidence beyond her bare allegations to support her assertion HRT would have

acted against her for calling in sick. The allegation thus remains entirely

hypothetical. And ARB caselaw has long recognized that such “rank speculation” of

retaliatory behavior cannot “support a claim of protected activity” under similar

29

Complainant’s Deposition Transcript at 98.

March 6, 2017 Letter. It is axiomatic that, to constitute actionable retaliation, the

alleged action must post-date the protected activity. See Nieman v. Se. Grocers, LLC, ARB

No. 2018-0058, ALJ No. 2018-LCA-00021, slip op. at 14 n.85 (ARB Oct. 5, 2020) (citing

cases for the proposition that adverse action occurring before protected activity cannot be

caused by the protected activity).

30

Notably, the plain text of the NTSSA mandates a consideration whether public

transportation safety is at issue. 6 U.S.C. § 1142(a). The NTSSA is not a general remedy for

employment grievances unrelated to public safety such as an employee’s suspicion sick

leave will not be honored, as the Board has held with similar whistleblower statutes it

administers. See e.g. Forrand v. Fedex Express, ARB No. 2019-0041, ALJ No. 2017-AIR00016, slip op. at 3 n.8 (ARB Jan. 4, 2021) (AIR21 “is not a general remedy for employment

grievances unrelated to air safety.”).

31

10

whistleblower statutes.32 Moreover, as a procedural matter, “conclusory allegations

or denials, without more, are insufficient to preclude granting [a] summary

judgment motion.”33

C. Safety vests, route planning, and “Linda’s tire”

Complainant’s allegations regarding safety vests, route planning, and “Linda’s

tire” suffer similarly fatal flaws. The ALJ again properly found it indisputable that

Complainant did not provide any information regarding these allegations to any

decisionmaker prior to her termination.34

But even if she had, those complaints would succumb to the same lack of

readily recognizable transportation safety concern and lack of proof that belie her

other allegations of protected activity. On their face, we agree with the ALJ that

they do not suggest the type of activity that warrants protection under either the

STAA or NTSSA.35 As Respondent notes regarding NTSSA, Complainant’s

subjective concern about these issues does not inherently transform HRT’s gardenvariety business decisions into matters of public transportation safety or in any way

suggest a misappropriation of public funds.36 Because Complainant did not -- and

under our review of the summary decision pleadings cannot -- further support her

allegations demonstrating she engaged in a protected activity, we affirm the ALJ.

D. Going “to the federal building” and “going to OSHA”

Finally, we further affirm the ALJ’s conclusion, viewing the evidence in the

light most favorable to the Complainant, that the record does not support a finding

that Respondent perceived Complainant as about to engage in protected activity.

The STAA prohibits a person from discriminating against an employee because the

person “perceives that the employee has filed or is about to file a complaint . . .

related to a violation of a commercial motor vehicle safety or security regulation,

standard, or order.”37 The NTSSA similarly protects an employee who is “perceived

See, e.g., Johnson v. Oak Ridge Operations Off. U.S. Dep’t of Energy, ARB No. 19970057, ALJ Nos. 1995-CAA-00020, -00021, -00022, slip op. at 12 (ARB Sept. 30, 1999)

(rejecting a “theoretical” argument a person’s background is a likely indicator of their

future behavior and holding “a claim of retaliation” . . . “must rest upon a firmer

foundation[.]”).

32

33

Tom v. Hosp. Ventures LLC, 980 F.3d 1027, 1037 (4th Cir. 2020).

34

D. & O. at 16-17.

35

Id. at 13.

36

HRT Memorandum of Law at 18.

37

49 U.S.C. § 31105(a)(1)(A)(ii).

11

by the employer” to have engaged in protected activity.38 Because the statutes

specifically prohibit retaliation because of a perception of protected activity, it is

immaterial whether a complainant actually engaged in protected activity (or was

going to) and the focus must necessarily be on the employer’s perception of the

employee’s actions or potential future actions.

Complaining to OSHA or federal authorities about a misappropriation of

funds could conceivably give rise to a cognizable claim under the NTSSA.39 But the

content and context of Complainant’s specific communications remove any

reasonable possibility Respondent would have perceived Complainant had, or was

about to, engage in such action. Complainant did not set forth any specific facts

regarding Respondent’s perception, let alone show a genuine issue of material fact -she merely set forth her own statements.40

While Complainant obliquely mentioned “going to the federal building” in a

meeting with Respondent, the ALJ correctly found it not reasonably disputable that

in the same meeting Complainant “never made any specific complaint or provided

any other detail indicating the existence of a hazardous safety or security

condition.”41 And without it, no reasonable factfinder could conclude there was

anything that could qualify as protected activity for Complainant to prospectively

report -- indeed any such conjecture would necessarily be pure speculation, as the

ALJ found.42

We conclude as a matter of law no reasonable factfinder could determine

Complainant’s communications about going to the federal building, standing alone,

created a perception of protected activity in HRT. Likewise, the ALJ correctly

determined Complainant’s mere reference of going to OSHA to a passenger she

accused of interfering with her break was too vague to support a reasonable

perception Complainant was about to engage in protected activity. ARB caselaw

similarly supports that conclusion.43

Complainant has not meaningfully challenged these conclusions on appeal.

Thus, we further affirm the ALJ’s conclusions regarding the perception of protected

activity.

38

6 U.S.C. § 1142(a).

39

See 6 U.S.C. § 1142(a)(1); 29 C.F.R. § 1982.102(a)(1).

40

29 C.F.R. § 18.72(a).

41

D. & O. at 8-9.

42

Id. at 17.

43

See, e.g., Menefee, ARB No. 2009-0046, slip op. at 8.

12

CONCLUSION

For the foregoing reasons, the Board AFFIRMS the ALJ’s Order Granting

Respondent’s Motion for Summary Decision and Denying Complainant’s Motion for

Summary Decision.

SO ORDERED.

__________________________________________

JONATHAN ROLFE

Administrative Appeals Judge

__________________________________________

SUSAN HARTHILL

Chief Administrative Appeals Judge

__________________________________________

IVEY S. WARREN

Administrative Appeals Judge