U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

THOMAS MAY,

ARB CASE NO. 2022-0015

COMPLAINANT,

ALJ CASE NO. 2020-PSI-00001

ALJ STEVEN D. BELL

DATE: September 14, 2023

AGL SERVICES COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Thomas May, Esq.; pro se; Rittman, Ohio

For the Respondent:

Benjamin D. Briggs, Esq., Honore N. Hishamunda, Esq., and Cary R.

Burke, Esq.; Seyfarth Shaw LLP; Atlanta, Georgia

Before PUST and WARREN Administrative Appeals Judges

DECISION AND ORDER

PUST, Administrative Appeals Judge:

This case arises under the employee protection provisions of the Pipeline

Safety Improvement Act of 2002 (PSIA or Act),1 and its implementing regulations.2

Thomas May (Complainant) filed a whistleblower complaint against AGL Services

Co. (Respondent) for alleged retaliation under the PSIA. A U.S. Department of

Labor Administrative Law Judge (ALJ) issued a Decision and Order (D. & O.)

denying the claim based on the ALJ’s finding that Complainant failed to establish

49 U.S.C. § 60129.

29 C.F.R. Part 1981 (2023).

that his protected activity was a contributing factor to the adverse personnel action

he suffered.3 Complainant timely appealed the ALJ’s decision to the Administrative

Review Board (ARB or Board). We affirm.

BACKGROUND

Complainant began working for Respondent as a fire investigator in

December 2018.4 Respondent, through Nicor, Inc., is a distributor of natural gas to

residences and businesses in the suburbs of Chicago, Illinois.5 In 2018, Nicor, Inc.

began installing gas meters able to directly report gas usage through a lithium

battery-powered communications link throughout its service area. These new gas

meters are referred to herein as “Sensus AMI meters.”6

During the spring and summer of 2019, four properties suffered fires, all

serviced by Respondent and located on residential streets in the suburbs of Chicago,

as follows: (1) DaVinci Drive in Hampshire, Illinois on May 14, 2019; (2) Clover

Ridge in Itasca, Illinois on June 7, 2019; (3) Eider Drive in Plainfield, Illinois on

July 5, 2019; and (4) Meadow Court in Hampshire, Illinois on August 10, 2019.7

With respect to these four properties, the record clearly establishes that only the

one located on Meadow Court in Hampshire, Illinois was equipped with a Sensus

AMI meter. 8

At some point following the DaVinci Drive fire on May 14th and the Clover

Ridge fire on June 7th, Complainant developed concerns that Sensus AMI meters

may have caused the fires.9 At the time he developed these concerns, Complainant

was unaware that neither the DaVinci Drive property or the Clover Ridge property

were equipped with Sensus AMI meters, though he had access to a computer

database that would have confirmed that information.10

On June 8, 2019, Tommy Sipsy (Sipsy), Complainant’s supervisor, returned

to the office after being on leave for approximately one month, and became aware of

D. & O. at 36.

Id. at 2.

Id. Nicor, Inc. is a subsidiary of Southern Company Gas, which is in turn a

subsidiary of Southern Company. Id.

Sensus manufactures the Sensus AMI gas meters. Id.

Id. at 2, 11.

Id. at 11. It is unclear when Complainant became aware of this. Id. at 34-35.

Id. at 3-5.

Id. at 5.

Complainant’s concerns regarding the Sensus AMI meters.11 Sipsy inquired into the

Sensus AMI meters’ safety.12 On July 19, 2019, Sipsy sent Complainant a

memorandum which noted that no fires were associated with the millions of

installed units and concluded that the meters did not pose a safety risk.13

Complainant continued to voice his concerns about the Sensus AMI meters,

including in an August 7, 2019 memorandum he sent to Respondent’s in-house

counsel suggesting that Respondent should investigate the safety of the Sensus AMI

meters, but in which he did not suggest that the meters had caused any fires.14

At some point in August, Sipsy scheduled a meeting with Complainant for

August 15, 2019, to discuss Complainant’s job performance.15 Before the meeting,

Complainant filed an internal ethics complaint, alleging that Sipsy was retaliating

against him for raising safety concerns.16 Complainant also informed Charles

Mangan (Mangan), Sipsy’s supervisor, that, if Sipsy attempted to counsel him about

his job performance he would file a complaint against Sipsy with the Illinois

Commerce Commission (ICC).17 Complainant also informed Mangan that

“Complainant intended to ‘bully Tommy [Sipsy] like he’s never been bullied

before.’”18 As a result, Mangan assigned a security officer to accompany Sipsy to the

meeting.19At the meeting, Complainant yelled at Sipsy, denigrating Sipsy’s

character, education, and personal appearance, which Sipsy stated, “shook me up. It

shook me up bad.”20 The security officer later reported to Mangan that Complainant

had been yelling at and chastising Sipsy during the meeting.21

On August 23, 2019, Complainant met with Respondent’s executives and

urged them to investigate the Sensus AMI meters.22 At an unknown point in time,

Respondent appointed an investigative team to determine if the Sensus AMI meters

Id. at 6-7, 32.

Id. at 8-10.

Id.

Id. at 12.

Id.

Id. at 17.

Id. at 12.

Id.

Id. at 15.

Id. at 16.

Id.

Id. at 17-19.

posed a safety risk.23 Complainant was a member of the investigative team, which

continued its work even after Complainant’s employment was terminated.24

As part of her assigned duties, Katrina Oliver (Oliver) conducted the

investigation of Complainant’s internal August 13, 2019 ethics complaint against

Sipsy. She noted that Complainant reported that Sipsy had been “micromanaging”

him since approximately February 2019, and referred to Sipsy as “incompetent” and

exhibited a “general feeling of disgust” about Sipsy’s qualifications to manage him.25

Oliver eventually concluded that Complainant’s ethics complaint against Sipsy was

unsubstantiated.26 Thereafter, on September 12, 2019, Respondent hired Ginger

McRae (McRae), an outside investigator, to evaluate whether Complainant’s

treatment of Sipsy violated the company’s code of ethics.27

On September 16, 2019, Sipsy emailed Complainant regarding

administrative issues.28 On September 18, 2019, Complainant replied and accused

Sipsy of being “‘an ethically challenged individual’ attempting to ‘promulgate a

fabricated untruth.’”29 Complainant then addressed Sipsy directly, writing, “You

don’t have any SHAME, do you? Please cease with the unprincipled buffoonery and

focus on completing your individual and supervisory demands in an honest and

principled manner. Thank you in advance for your full cooperation going forward.”30

Complainant added several carbon copy recipients to the email.31

On September 19, 2019, Pamela Wimberly (Wimberly), a human resources

representative, suspended Complainant’s employment pending McRae’s

investigation.32 On September 24, 2019, McRae presented to Mangan, Wimberly,

and Sheree Sturgis (Sturgis), Respondent’s Director of Ethics and Compliance

Office, her finding that Complainant’s actions were inconsistent with Respondent’s

Id.

Id. at 19 (citing Hearing Transcript (Tr.) at 821 and Joint Exhibit (JX) 19 at 4). This

citation is incorrect. The correct transcript citation is Tr. at 817.

D. & O. at 19 (citing Tr. at 878, JX 22). This citation is incorrect. The correct

transcript citation is Tr. at 873-74.

D. & O. at 21.

Id. at 21-22.

Id.

Id. at 23 (citing Tr. at 697). This citation is incorrect. The correct citation is Tr. at

696.

code of ethics.33 On September 26, 2019, Respondent terminated Complainant’s

employment.34

On October 8, 2019, Complainant filed a whistleblower complaint with the

Department of Labor’s Occupational Safety and Health Administration (OSHA),

alleging that Respondent retaliated against him in violation of the PSIA.35 On

December 31, 2019, OSHA determined there was no probable cause for the

complaint and dismissed the case.36

Complainant requested a hearing before an ALJ with the Office of

Administrative Law Judges. The hearing took place on June 14-18, 2021.37 On

November 16, 2021, the ALJ issued a Decision and Order in which he concluded

that Complainant had engaged in protected activity when he questioned the safety

of the Sensus AMI meters, but that this protected activity was not a contributing

factor to the adverse employment actions he suffered, and therefore dismissed the

complaint.38

Complainant timely appealed to the Board.39 Both parties filed briefs.40 On

March 27, 2023, Complainant filed a petition to unseal the record.

JURISDICTION AND STANDARD OF REVIEW

The Board has jurisdiction to hear appeals concerning questions of law or fact

from an ALJ’s final determinations under the PSIA.41 The Board reviews questions

of law presented on appeal de novo, but is bound by the ALJ’s factual

determinations as long as they are supported by substantial evidence.42 Substantial

evidence is “such relevant evidence as a reasonable mind might accept as adequate

D. & O. at 23.

Id.

OSHA’s Determination Letter at 1.

Id.

D. & O. at 26.

Id. at 39-40.

Complainant’s (Comp.) Petition for Review.

Comp. Brief (Br.), Respondent’s (Resp.) Br., Comp. Reply Br.

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).

29 C.F.R. § 1981.110(b); Reed v. Jacobs Eng’g Grp., ARB Nos. 2019-0062, -0066, ALJ

No. 2017-PSI-00001, slip op. at 5 (ARB Mar. 31, 2021).

to support a conclusion.”43 The Board reviews an ALJ’s determinations on

procedural and evidentiary rulings under an abuse of discretion standard.44

DISCUSSION

The PSIA’s employee protection provision prohibits discrimination against an

employee who engages in certain types of protected activity.45 To prevail on a PSIA

whistleblower complaint, Complainant must demonstrate, by a preponderance of

the evidence, that he (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.46 If Complainant meets this

burden, relief may not be ordered if Respondent can demonstrate, by clear and

convincing evidence, that it would have taken the same adverse employment action

even if Complainant had not participated in the protected activity.47

1. The ALJ’s Factual Findings are Supported by Substantial Evidence

Complainant challenges several of the ALJ’s factual findings, often without

citing to the record or explaining how these purported errors would impact the

result reached in the case. Citations to materials without specificity are insufficient

because “[w]e are not required to scour through hundreds of pages of deposition

transcript in order to verify an assortment of facts . . . .”48 Moreover, as discussed in

more detail below, we find that substantial evidence in the record supports the

ALJ’s factual findings.

Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938) (citations omitted).

Furlong-Newberry v. Exotic Metals Forming Co., LLC, ARB No. 2022-0017, ALJ No.

2019-TSC-00001, slip op. at 22 (ARB Nov. 9, 2022) (citing James v. Suburban Disposal,

Inc., ARB No. 2010-0037, ALJ No. 2009-STA-00071, slip op. at 4 (ARB Mar. 12, 2010)).

49 U.S.C. § 60129(a); 29 C.F.R. § 1981.100.

See 29 C.F.R. § 1981.109(a) (“A determination that a violation has occurred may only

be made if the complainant has demonstrated that protected behavior or conduct was a

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

Id. (“Relief may not be ordered if the named person demonstrates by clear and

convincing evidence that it would have taken the same unfavorable personnel action in the

absence of any protected behavior.”).

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

at 8 n.39 (ARB Aug. 22, 2022) (quoting Friend v. Valley View Cmty. Unit Sch. Dist., 365U,

789 F.3d 707, 710-11 (7th Cir. 2015).

2. Complainant Engaged in Protected Activity

The ALJ found that Complainant engaged in protected activity when he

questioned whether Respondent’s Sensus AMI meters posed a fire risk.49 Neither

Complainant nor Respondent challenges the ALJ’s finding that Complainant

engaged in protected activity.50 Substantial evidence in the record supports the

ALJ’s finding.51 Thus, we affirm the ALJ’s finding that Complainant engaged in

protected activity.

3. Complainant Suffered an Adverse Employment Action

The ALJ found that Complainant suffered adverse employment actions when

he was suspended from work on September 19, 2019, and when Respondent

terminated his employment on September 26, 2019.52 Neither Complainant nor

Respondent challenges the ALJ’s findings, which are supported by substantial

evidence in the record.53 Thus, we affirm the ALJ’s finding that Complainant

suffered adverse employment action.

4. Complainant’s Participation in Protected Activity was not a

Contributing Factor to the Adverse Employment Actions

The ALJ found there was no direct or circumstantial evidence that

Complainant’s employment was terminated because of his participation in protected

activity.54 Further, the ALJ found that any chain of inference that might have

existed between Complainant’s protected activity and his employment termination

was broken by two intervening acts: (1) Complainant’s unprofessional behavior at

the August 15, 2019 meeting and (2) the disrespectful and unprofessional

September 18, 2019 email that Complainant wrote and widely distributed.55 The

ALJ found that Respondent terminated Complainant’s employment solely because

D. & O. at 34.

Complainant contends that the ALJ did not comprehensively examine the facts that

support the finding that he engaged in protected activity, specifically the safety issues

regarding Sensus AMI meters. Comp. Br. at 1-4. The ALJ was tasked with analyzing

whether Complainant established the elements of his whistleblower claim, not whether the

Sensus AMI meters posed an actual safety risk. See 29 C.F.R. § 1981.109(a).

D. & O. at 34-35.

Id. at 35.

Id. at 35-36.

Id. at 36-39.

Id. at 36-37.

of Complainant’s unprofessional behavior directed toward Sipsy.56 Thus, the ALJ

concluded that Complainant’s protected activity was not a contributing factor with

respect to the adverse actions he suffered.57

A contributing factor is any factor which, alone or in combination with other

factors, tends to affect in any way the outcome of the decision.58 Employees may

meet their evidentiary burden to establish this element of the claim with

circumstantial evidence.59 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.60

The record supports the ALJ’s finding that Complainant behaved

unprofessionally at the August 15, 2019 meeting. Sipsy testified that Complainant

“verbally abus[ed]” him for approximately fifteen minutes, during which time

Complainant denigrated Sipsy’s character, education, and personal appearance.61

Sipsy’s testimony was bolstered by McRae’s testimony and September 23, 2019

report specifically because Complainant expressed his contempt for Sipsy to McRae

and denigrated Sipsy’s education and job performance.62 Complainant’s testimony

also supports the ALJ’s finding. Complainant testified that at the August 15, 2019

meeting, he “dealt with a bully the way a bully needed to be dealt with,” used the

threat of reporting Sipsy “as a shield,” and “put [Sipsy] in his place.”63

Substantial evidence in the record also supports the ALJ’s finding that

Respondent terminated Complainant’s employment related to the September 18,

2019 email that Complainant wrote and widely distributed. Complainant’s email,

on its face, was unprofessional, demeaning, and inappropriate. The email states, in

part, that Sipsy’s original email was “yet another dishonest attempt by an ethicallychallenged individual to promulgate a fabricated untruth” and “[y]ou don’t have

ANY shame, do you? Please cease with the unprincipled buffoonery and focus upon

Id. at 38.

Id. at 39.

Williams v. QVC, Inc., ARB No. 2020-0019, ALJ No. 2018-SOX-00019, slip op. at 12

(ARB Jan. 17, 2023) (citing Palmer v. Canadian Nat’l Ry., ARB No. 2016-0035, 2014-FRS00154, slip op. at 53 (Sept. 30, 2016), reissued with full dissent, Jan. 4, 2017).

Id. (citing Palmer, ARB No. 2016-0035, slip op. at 55).

Id. (citing Acosta v. Union Pacific R.R. Co., ARB No. 2018-0020, ALJ No. 2016-FRS00082, slip op. at 8-9 (ARB Jan. 22, 2020) (citing Loos v. BNSF Ry. Co., 865 F.3d 1106,

1112-13 (8th Cir. 2017), rev’d on other grounds, 139 S. Ct. 893 (Mar. 4, 2019)).

D. & O. at 16; Tr. at 528-29.

D. & O. at 19-21; JX 22; Tr. at 875-76.

D. & O. at 14-15; Tr. at 390-92.

completing your individual and supervisory demands in an honest and principled

manner.”64 Thus, we find that substantial evidence in the record supports the ALJ’s

finding that Complainant’s protected activity was not a contributing factor to

Respondent’s decision to terminate his employment.

Despite the substantial evidence that Respondent terminated Complainant’s

employment solely because of his unprofessional misconduct and insubordination,

Complainant contends that the ALJ erred in reaching this conclusion for several

reasons.65 We address, and reject, each in turn.

A. Temporal Proximity

Complainant contends that the record demonstrates an inference of causation

based on the temporal proximity between when he engaged in protected activity and

when Respondent terminated his employment.66 Any inference of contributing

factor causation raised by temporal proximity may be rebutted or negated where a

complainant engaged in intervening events of insubordinate conduct.67 As the

Board has explained, “[t]he insufficiency of temporal proximity as a basis for

proving causation is [ ] apparent when the facts reveal an intervening event

occurring between the protected activity and the adverse personnel action.”68

Complainant engaged in protected activity beginning on or around June 8,

2019, when he raised his concerns about the Sensus AMI meters to Sipsy upon

Sipsy’s return from leave, and continued until Respondent terminated his

employment.69 Complainant did not experience an adverse action until after he

D. & O. at 22; JX 20 at 2.

Comp. Br. at 48-49.

Id. at 12.

See Smith v. CRST Int’l, Inc., ARB No. 2015-0004, ALJ No. 2006-STA-00031 (ARB

Dec. 21, 2016) (example where a respondent successfully rebutted the inference of causation

established by temporal proximity); Rathburn v. The Belt Ry. Co., ARB No. 2016-0036, ALJ

No. 2014-FRS-00035 (ARB Dec. 8, 2017) (example where a respondent successfully negated

the inference of causation established by temporal proximity); but see Occhione v. PSA

Airlines, Inc., ARB No. 2013-0061, ALJ No. 2011-AIR-0012, slip op. at 12 n.54 (ARB Nov.

26, 2014) (“In any event, the occurrence of an ‘intervening event’ does not necessarily cancel

the inference of causation resulting from temporal proximity but may merely compromise

it. ‘[O]ther evidence may establish the link between’ the protected activity and adverse

action despite the intervening event. Whether an intervening act will break causation may

be decided one way or the other depending on ‘how proximate the events actually were, and

the context in which the issue’ arose.”) (internal citations omitted).

Williams, ARB No. 2020-0019, slip op. at 14 (quoting Acosta, ARB No. 2018-0020,

slip op. at 8) (emphasis added).

D. & O. at 32, 34-35.

began behaving in an unprofessional manner. As the ALJ found, the chain of

inference between Complainant’s protected activity and the adverse actions was

broken by Complainant’s behavior at the August 15, 2019 meeting and in the

September 18, 2019 email Complainant wrote and distributed.70 Moreover, the

event most proximate to Complainant’s employment termination was that McRae

presented her findings concluding that Complainant’s behavior was inconsistent

with Respondent’s code of ethics to Mangan two days before Respondent terminated

Complainant’s employment.71 Thus, we affirm the ALJ’s finding that any purported

chain of inference between Complainant’s protected activity and his termination

was broken by these intervening acts.

B. Pretext

Complainant next asserts that Respondent’s purported reason for

terminating his employment was pretextual. In appropriate circumstances, pretext

may serve as circumstantial evidence of contribution.72 “The critical inquiry in a

pretext analysis is . . . whether the employer in good faith believed that the

employee was guilty of the conduct justifying discharge.”73

Complainant contends that Respondent’s purported reason for terminating

his employment is pretextual based on Respondent’s “shifting rationalizations.”74

Specifically, Complainant asserts that Respondent first alleged poor job

performance as its reason for terminating his employment, only to later claim that

Respondent terminated his employment because of unprofessional conduct.75

Complainant fails to cite to anything in the record in support of his assertion

that Respondent shifted its rationalization for terminating Complainant’s

employment. Although Sipsy met with Complainant on August 15, 2019, to discuss

Complainant’s performance review, substantial evidence in the record supports the

ALJ’s finding that Respondent terminated Complainant’s employment due to

Complainant’s insubordination and unprofessional treatment of Sipsy. Notably,

Complainant testified that Mangan informed him that Respondent was terminating

Id. at 36.

D. & O. at 23; JX 23 at 7.

Reed v. American Airlines, Inc., ARB No. 2021-0044, ALJ No. 2020-AIR-00001, slip

op. at 18 (ARB Dec. 16, 2021).

Carter v. BNSF Ry. Co., ARB No. 2021-0035, ALJ No. 2013-FRSA-00082, slip op. at

13 (ARB Sept. 26, 2022) (quoting BNSF Ry. Co. v. U.S. Dep’t of Labor, Admin. Rev. Bd., 867

F.3d 942, 947 (8th Cir. 2017)).

Comp. Br. at 14-16.

Id.

his employment due to his insubordination.76 In addition, on September 12, 2019,

Respondent hired McRae to investigate whether Complainant’s behavior violated

Respondent’s code of ethics.77 One day after McRae presented her findings that it

did, Respondent terminated Complainant’s employment.78 Thus, we conclude that

Complainant has failed to establish that Respondent had a shifting rationalization

for terminating complainant’s employment.

Next, Complainant contends that pretext is also demonstrated by the timing

of his job performance critique.79 Complainant alleges that Respondent only

critiqued his job performance after he began engaging in protected activity.80

Complainant has not cited to the record in support of this argument. The aspect of

Complainant’s job performance that Sipsy critiqued related to Complainant’s failing

to maintain the calendar he shared with Sipsy, who needed to monitor

Complainant’s job performance in Naperville, Illinois from Atlanta, Georgia.81 The

record demonstrates that Sipsy first counseled Complainant on maintaining his

shared calendar on February 19, 2019, two months before the DaVinci Drive fire

occurred and thus two months before any protected conduct took place.82 Thus,

Complainant has not established that the timing of his job performance critiques

demonstrates pretext.

C. Inconsistent Application of Respondent’s Policies

Complainant contends that Respondent did not follow its policy of discipline,

and that the decision-making process that led to the termination of his employment

was tainted and could not have been independent.83 The ALJ did not make a finding

about whether Respondent had a progressive discipline policy in place, and

Complainant has not cited to any evidence in the record of such a policy. Moreover,

Sturgis testified that, during the period of Complainant’s employment, Respondent

did not have a progressive discipline policy in place and instead disciplinary

matters were handled “based on the egregiousness of the infraction.”84 Thus, we

find that Complainant failed to establish an inconsistent application of

Respondent’s policies with respect to his termination.

Tr. at 408-09.

D. & O. at 19.

Id. at 23.

Comp. Br. at 16-20, 22, 33-36.

Id.

D. & O. at 37.

Id.; Tr. at 495.

Comp. Br. at 12-14, 40.

Tr. at 812-13.

D. Disparate Treatment

Complainant contends that the ALJ erred in finding that other employees

who were not engaging in protected activity suffered comparable discipline after

engaging in similar insubordination.85 “A whistleblower who argues that disparate

treatment occurred ‘must prove that similarly-situated employees’ who were

‘involved in or accused of the same or similar conduct were disciplined

differently.’”86 Disparate treatment requires that both employees committed similar

conduct with comparable seriousness.87 Notably, the ALJ did not make any finding

related to disparate treatment. In addition, Complainant has not referenced

another employee or situation involving comparable insubordination. As there is no

evidence in the record of any such situation, we conclude that Complainant has not

demonstrated that he suffered any disparate treatment.

E. Respondent’s Motivation

Finally, Complainant contends that the ALJ erred in finding there was no

motivation for Respondent to retaliate against Complainant.88 The record

substantially supports the ALJ’s finding that Respondent took Complainant’s safety

concerns seriously and investigated them. Sipsy investigated the safety of the

Sensus AMI meters.89 In addition, Respondent formed a committee to investigate

the safety of Sensus AMI meters, which investigation Complainant was part of and

which continued after Complainant’s employment was terminated.90

For the reasons stated and based on substantial evidence in the record, we

affirm the ALJ’s conclusion that Respondent established a credible, legitimate, and

non-retaliatory basis for terminating Complainant’s employment and that

Respondent terminated Complainant’s employment on that basis. Therefore, we

Comp. Br. at 20-21.

Graff v. BNSF Ry. Co., ARB No. 2021-0002, ALJ No. 2018-FRS-00018, slip op at 12

(ARB Sept. 30, 2021) (quoting Smith v. BNSF Ry. Co., ARB No. 2015-0055, ALJ No. 2013FRS-00071, slip op. at 5 (ARB Apr. 11, 2017)). This test “is a rigorous one.” Bone v. G4S

Youth Servs., LLC, 686 F.3d 948, 956 (8th Cir. 2012) (quoting Rodgers v. U.S. Bank, N.A.,

417 F.3d 845, 853 (8th Cir. 2005)).

Graff, ARB No. 2021-0002, slip op at 12.

Comp. Br. at 47-48.

D. & O. at 37.

Id. at 17, 35.

affirm the ALJ’s finding that Complainant’s protected activity was not a

contributing factor to the adverse employment actions he suffered.91

5. The ALJ Did Not Abuse his Discretion in the Issuance of Pre-Trial

Orders

Complainant contends that the ALJ erred in issuing several pre-trial orders.

As noted above, the Board reviews procedural and evidentiary rulings under an

abuse of discretion standard.92 “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.”93

First, Complainant asserts that the ALJ erred in denying his pre-trial motion

for the appointment of an expert witness to educate the court about lithium

batteries and fire.94 Complainant does not cite any authority to establish that the

ALJ’s ruling was arbitrary or an abuse of discretion.95 The ALJ correctly held that

Complainant did not need to prove that the Sensus AMI meters posed a fire safety

risk, only that Complainant “acted reasonably when he raised questions about the

safety of the Sensus AMI meters with his employer,” an issue that “did not depend

on scientific evidence or expert opinion about the actual cause of the 2019 fires.”96

The ALJ determined that Complainant met this burden, and thus found in

Complainant’ favor on the issue of protected conduct without the need of expert

Since the ALJ found that Complainant’s protected activity was not a contributing

factor to the adverse employment actions he suffered, the ALJ did not reach the same

action defense analysis.

Furlong-Newberry, ARB No. 2022-0017, slip op. at 22 (citing James v. Suburban

Disposal, Inc., ARB No. 2010-0037, ALJ No. 2009-STA-00071, slip op. at 4 (ARB Mar. 12,

2010)).

Id. (quoting Nieman v. Se. Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA00021, slip op. at 21 (ARB Oct. 5, 2020)).

Comp. Br. at 43.

See Santiglia v. Sun Microsystems, Inc., ARB No. 2003-0076, ALJ Co. 2003-LCA00002, slip op. at 7 (ARB July 29, 2005) (acknowledging ALJ’s “considerable latitude in

ordering proceedings” and finding denial of expert testimony to be “appropriate and legally

sound.”).

D. & O. at 25-26 (quoting ALJ’s May 11, 2020 Order denying Complainant’s Motion

for the Appointment of an Expert). See also Elbert v. True Value Co., ARB No. 2007-0031,

ALJ No. 2005-STA-00036, slip op. at 2-3 n.5 (ARB Nov. 24, 2010) (Order Denying

Reconsideration) (“An employee’s complaint based upon a reasonable, albeit mistaken,

belief that a potential or actual violation of a . . . safety regulation . . . occurred is sufficient

to establish protected activity.”).

testimony.97 Thus, we affirm the ALJ’s denial of Complainant’s motion for the

appointment of an expert witness.

Next, Complainant contends that the ALJ erred in denying his motion for a

referral of court-filed discovery documents to the ICC.98 Complainant has not

explained how the ALJ’s denial of Complainant’s motion harmed his case or how the

ALJ abused his discretion, nor do we find any evidence of such. Thus, we affirm the

ALJ’s order denying Complainant’s motion.

Complainant further contends that the ALJ erred in issuing a protective

order in this case.99 The protective order set forth a procedure for parties to

designate certain defined information as “confidential,” subject to the opposition’s

right to challenge any such designation, and prohibited the parties from sharing

confidential information outside of limited circumstances absent a designation

challenge or request for modification of the protective order brought before the

ALJ.100

An ALJ has authority to grant a protective order “to protect against undue

disclosure of privileged communications, or sensitive or classified matters.”101 To

appropriately do so, the ALJ must determine “whether ‘good cause’ exists to protect

th[e] information from being disclosed to the public by balancing the needs for

discovery against the need for confidentiality.’”102

The ALJ determined that certain information should be subject to protection

given its sensitive nature.103 Complainant received all documents in dispute prior to

the close of discovery and was allowed to examine and cross-examine witnesses.104

By its terms, the protective order remains subject to a request for modification

made to the ALJ. Further, Complainant has not pointed 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. By its terms, the protective order

does not “address claims of confidentiality made for any documents or information

D. & O. at 34.

Comp. Br. at 23.

Id. at 48.

100

Protective Order at 1-3 (Dec. 14, 2020).

101

29 C.F.R. § 18.85(a).

Furlong-Newberry, ARB No. 2022-0017, slip op. at 30 (citing Pintos v. Pac. Creditors

Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (quoting Phillips ex rel. Estates of Byrd v. Gen.

Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002))).

102

103

Protective Order at 1.

104

Resp. Br., EX A at 17.

which the parties will introduce during any public hearing in this case,” and the

order itself remains subject to a request for modification made to the ALJ.105 Thus,

we find no abuse of discretion in the ALJ’s issuance of the protective order.

6. The ALJ Did Not Improperly Exclude Witnesses

Complainant contends that the ALJ erred in excluding several witnesses

from testifying at the hearing, including Dirk Dunlap, Rachel Daly, and Joseph

Worthan.106 An ALJ is granted broad discretion to control discovery and hearing

procedures, and will only be reversed upon a showing that the ALJ abused their

discretion.107 Complainant has not offered any evidence that the ALJ’s decision was

either arbitrary or an abuse of his discretion. The ALJ provided both parties with

an opportunity to call and examine witnesses.108 When the ALJ, Respondent, and

Complainant discussed which witnesses would be called, Complainant specifically

agreed to exclude Daly as a witness.109 In addition, on the last day of the hearing

when the ALJ asked Complainant if there were any other witnesses Complainant

wanted to call, Complainant replied, “No. I can rest, Your Honor, thank you.”110

Thus, we find that the ALJ did not improperly exclude Complainant’s witnesses.

7. The ALJ’s Credibility Determinations

The ALJ made specific credibility determinations in his written decision. He

found Mangan to be a “particularly credible witness” whose testimony he gave

“great weight.”111 The ALJ found Respondent’s other witnesses to be “generally

credible,” and found Complainant’s credibility to be “negatively affecte[ed] by his

continued failure to voluntarily disclose the “critically important fact” that there

were no Sensus AMI meters at three of the four fires.112

105

Protective Order at 1, 3.

106

Comp. Br. at 23-24, 36-37.

Neely v. The Boeing Co., ARB No. 2020-0071, ALJ No. 2018-AIR-00019, slip op. at 23

(ARB May 19, 2022) (citing 29 C.F.R. § 18.12(b); Huang v. Ultimo Software Sols., Inc., ARB

Nos. 2009-0044, -0056, ALJ No. 2008-LCA-00011, slip op. at 2-3 (ARB Nov. 10, 2011) (Order

Denying Reconsideration)).

107

108

D. & O. at 26.

109

Tr. at 662-63.

110

Id. at 1103.

111

D. & O. at 22, 33, 36.

112

Id. at 31-33.

Complainant contends that the ALJ erred in finding Mangan, Oliver, and

Sipsy to be credible witnesses.113 Complainant contends that Mangan and Oliver

had memory issues,114 and that the ALJ’s credibility assessment of Sipsy is contrary

to the evidence with respect to Complainant’s argument that Sipsy told him not to

investigate the DaVinci Drive fire.115

The Board gives considerable deference to an ALJ’s credibility

determinations and defers to such determinations unless they are inherently

incredible or patently unreasonable.116 “[I]f a ‘decision is based on testimony that is

coherent and plausible, not internally inconsistent, and not contradicted by external

evidence,’ the Board will defer to an ALJ’s credibility determinations.117

Complainant does not point to anything in the record that would demonstrate

that Mangan, Oliver, or Sipsy’s testimony was incoherent, implausible, internally

inconsistent, or contradicted by external evidence. On the contrary, and after a

thorough review of the record, we conclude that the ALJ’s credibility assessments of

Mangan, Oliver, and Sipsy are supported by substantial evidence in the record,

including the ALJ’s finding that Sipsy was out of the office on leave during the

DaVinci Drive fire which undermined Complainant’s insistence that Sipsy directed

him not to investigate his concerns.118 Thus, we defer to and find no error with

respect to the ALJ’s credibility determinations.

8. Motion to Unseal the Record

On March 27, 2023, Complainant filed with the Board a Petition to Unseal

Record.119 Complainant contends it is necessary to unseal the record so that he may

disclose public safety dangers.120

113

Comp. Br. at 40-43.

114

Id.

115

Id. at 44-47.

Furlong-Newberry, ARB No. 2022-0017, slip op. at 21 n.153 (quoting Kanj v. Viejas

Band of Kumeyaay Indians, ARB No. 2012-0002, ALJ No. 2006-WPC-00001, slip op. at 6

(ARB Aug. 29, 2012) (quotation omitted); see also Riddell v. CSX Transp., Inc., ARB No.

2019-0016, ALJ No. 2014-FRS-00054, slip op. at 13 n.3 (ARB May 19, 2020).

116

Furlong-Newberry, ARB No. 2022-0017, slip op. at 23 (citing Jenkins v. U.S. Env’t

Prot. Agency, ARB No. 2015-0046, ALJ No. 2011-CAA-00003, slip op. at 39 (ARB Mar. 1,

2018) (quoting Bobreski v. J. Givoo Consultants, ARB No. 2013-0001, ALJ No. 2008-ERA00003, slip op. at 26 (ARB Aug. 29, 2014))).

117

118

D. & O. at 3, 32, 35.

119

Complainant’s Petition to Unseal Record at 1.

120

Id.

Complainant’s argument is misdirected and without merit. The ALJ has not

sealed the record in this case. Rather, the ALJ issued a protective order on

December 14, 2020, regarding select categories of documents designated as

“confidential information” by either of the parties, as earlier addressed.121

As discussed above, Complainant has not demonstrated that the ALJ abused

his discretion in issuing the protective order, nor does the record indicate that the

Complainant has requested modification of the protective order’s controls before the

ALJ. As there is no order sealing the record currently in place, the Board need not

explore whether Complainant’s Petition meets the legal standard required to undo

an order to seal the administrative record. Thus, we deny Complainant’s Petition to

Unseal Record.

CONCLUSION

Accordingly, we AFFIRM the ALJ’s Decision and Order.122 In addition, we

DENY Complainant’s Petition to Unseal the Record on the grounds specified

herein.

SO ORDERED.

__________________________________________

TAMMY L. PUST

Administrative Appeals Judge

__________________________________________

IVEY S. WARREN

Administrative Appeals Judge

121

Protective Order at 1-3.

In any appeal of this Decision and Order, the appropriately named party is the

Secretary, Department of Labor, not the Administrative Review Board.

122

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.