# U.S. Department of Labor

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URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A8ae0d0a749f948d6

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

U.S. Department of Labor

Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

IN THE MATTER OF:
LUIS HORATIO ARIAS,

ARB CASE NO. 2025-0060

COMPLAINANT,

ALJ CASE NO. 2024-SOX-00032
ALJ JOHN P. SELLERS, III

v.
DATE: March 23, 2026
NICE ACTIMIZE, LTD.,
RESPONDENT.
Appearances:
For the Complainant:
Luis Horatio Arias; Pro Se; La Paz, Bolivia
For the Respondent:
Travis R. Kearbey, Esq.; Quarles & Brady LLP; Clayton, Missouri
Before KAPLAN and KIKO, Administrative Appeals Judges
DECISION AND ORDER
This case arises under the whistleblower protection provisions of Section 806
of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the
Sarbanes-Oxley Act (SOX or Act), as amended, and its implementing regulations.1
Complainant Luis Horatio Arias filed a complaint with the U.S. Department of
Labor’s Occupational Safety and Health Administration (OSHA) alleging that
Respondent NICE Actimize, LTD.2 unlawfully retaliated against him for engaging

1

18 U.S.C. § 1514A; 29 C.F.R. Part 1980 (2025).

As per the Administrative Review Board’s (ARB or Board) Notice of Appeal
Acceptance, Electronic Filing Requirements, and Briefing Order (Briefing Order):
2

When filing his complaint, the Complainant identified the
respondent as NICE Actimize, Ltd. However, no such entity

2

in protected activity. On April 30, 2025, a United States Department of Labor
Administrative Law Judge (ALJ) issued a Decision and Order Granting
Respondent’s Motion for Summary Judgment (Order Granting Summary
Judgment). Complainant petitioned the Board for review of the ALJ’s Order
Granting Summary Judgment. For the following reasons, we affirm.
BACKGROUND
Complainant is a Bolivian citizen and resides in Bolivia.3 Complainant is
employed by InContact Boliva, a company that provides commercial services to
Respondent.4 Between March 2022 and March 2023, Complainant raised several
concerns to supervisors and management about “irregular sales practices, product
capabilities, misrepresentations, and compliance issues.”5
In March 2023, Respondent placed Complainant on a Performance
Improvement Plan (PIP).6 Then, in April 2023, Respondent terminated
Complainant’s employment.7 Following his employment termination, Complainant
pursued a claim against InContact Bolivia before foreign tribunals.8 On October 6,
2023, a Bolivian court issued a reinstatement order.9
On March 14, 2024, approximately eleven months after his termination,
Complainant filed an OSHA complaint against Respondent alleging that “he
received a negative performance evaluation and was terminated during April
2023.”10 On April 4, 2024, OSHA issued Secretary’s Findings and dismissed the

exists. The Complainant was employed in Bolivia by InContact
Bolivia. That entity contracts with Actimize, Inc., which is a U.S.
based corporation. The parent company of Actimize, Inc. is an
Israeli entity named NICE LTD. The Respondent’s counsel
represents Actimize, Inc.
Briefing Order at 1 (internal citations omitted).
3

Order Granting Summary Judgment at 2.

4

Id.

5

Id.

6

Id.

7

Id. at 3.

8

See Complainant’s Opposition to Respondent’s Motion for Summary Judgment at 4.

See id. at 5; Opening Brief of Complainant Luis H. Arias (Comp. Br.) at 3-4.
Complainant returned to work on September 27, 2024. Complainant’s Opposition to
Respondent’s Motion for Summary Judgment, Exhibit (Ex.) B (Reinstatement Memo).
9

10

Secretary’s Findings at 1; see Order Granting Summary Judgment at 3.

3

complaint as untimely.11 Complainant filed objections to the Secretary’s Findings
and requested a hearing before the Office of Administrative Law Judges (OALJ).12
Before the OALJ, Respondent filed a Motion for Summary Judgment
arguing, among other things, that Complainant’s OSHA complaint was untimely
filed.13 Complainant filed a response in opposition to Respondent’s motion, asserting
that the claim was timely as circumstances warranted equitable tolling.14 On April
30, 2025, the ALJ granted Respondent’s Motion for Summary Judgment. On May
14, 2025, Complainant timely filed a Petition for Review with the Board.
On May 16, 2025, the Board accepted the appeal and issued a Briefing Order.
Before the Board, the parties filed several submissions, including: (1) Complainant’s
Motion for Leave to Submit New Evidence; (2) Complainant’s Opening Brief of
Complainant Luis H. Arias; (3) Respondent’s Opposition to Complainant’s Motion
for Leave to Submit New Evidence; (4) Respondent’s Brief in Response to
Complainant’s Opening Brief; and (5) Complainant’s Reply Brief to Respondent’s
Response Brief. The Board issued an Order (August 14, 2025 Order) directing
additional briefing from the parties.15 In response, Complainant filed Complainant’s
Brief Pursuant to August 14, 2025 Order, and Respondent filed Respondent’s
Response to Complainant’s Brief in Response to August 14, 2025, Order. After
thoroughly examining the parties’ arguments and the record, the Board affirms the
ALJ’s Order Granting Summary Judgment.
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated the Board the authority to hear appeals
from ALJ decisions and issue agency decisions under SOX.16 The Board reviews an

11

Order Granting Summary Judgment at 2.

12

Id.

13

Id.

14

Id.

In Respondent’s Opposition to Complainant’s Motion for Leave to Submit New
Evidence, Respondent requested that the Board decline to consider Complainant’s Opening
Brief because it was filed four days after the briefing deadline. The Board denied
Respondent’s request. August 14, 2025 Order at 3.
15

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); 29 C.F.R. § 1980.110(a).
16

4

ALJ’s grant of summary decision de novo under the same standard the ALJ
applies.17 This includes pre-hearing dismissals based on timeliness.18
DISCUSSION
1. New Evidence on Appeal
As set forth above, on June 16, 2025, Complainant filed a Motion for Leave to
Submit New Evidence, requesting that the Board reopen the record to accept new
evidence not submitted to the ALJ below.19 Specifically, Complainant identified
three exhibits that he seeks to introduce on appeal: (1) Exhibit ARB-2, “April 2023
Termination Memo;” (2) Exhibit ARB-3, “June 2023 Simulated Reinstatement
Memo;” and (3) Exhibit ARB-4, “June 2023 Second Termination Memo.”20
Complainant stated that these exhibits are relevant to “[e]stablishing the
timeliness” of his OSHA complaint, “[d]ocumenting adverse actions and employer
misconduct,” and “[s]upporting the pattern of retaliation relevant to equitable
tolling.”21 Respondent opposed Complainant’s motion.
On August 14, 2025, the Board issued an Order acknowledging the motion,
advising the parties that it does not generally receive or consider evidence
submitted for the first time on appeal, setting forth the applicable standard of
review, and directing the parties to submit briefing on this issue.22
The parties timely filed additional briefing on this issue. Complainant argues
that: (1) he mischaracterized the exhibits as “new evidence” as they were disclosed
in initial disclosures, preserved during discovery, and intended for hearing;23 (2) the
record was never formally closed under 29 C.F.R. § 18.90(a) because no hearing
occurred and no waiver was filed;24 and (3) the exhibits meet the Board’s four-factor
test to accept and consider new evidence on appeal.25 Conversely, Respondent

Neff v. Keybank Nat’l Assoc., ARB No. 2019-0035, ALJ No. 2018-SOX-00013, slip op.
at 3 (ARB Feb. 5, 2020).
17

Lugg v. Lear Corp., ARB No. 2022-0008, ALJ No. 2021-SOX-00022, slip op. at 3
(ARB May 19, 2022) (citation omitted).
18

19

Complainant’s Motion for Leave to Submit New Evidence at 1.

20

Id. at 2.

21

Id. at 1.

22

August 14, 2025 Order at 2.

23

Complainant’s Brief Pursuant to August 14, 2025 Order at 1-2.

24

Id.

25

Id. at 3-4.

5

contends that: (1) Complainant’s three exhibits are “new evidence” because they
were never submitted on the record before the ALJ or referenced to in the parties’
briefing of Respondent’s Motion for Summary Judgment;26 (2) the ARB has
consistently refused to consider documentation not before an ALJ;27 and (3)
Complainant fails to establish the factors necessary to admit new evidence.28
The Board agrees with Respondent.
The Board does not generally consider evidence submitted for the first time
on appeal.29 When determining whether to consider new evidence, the Board relies
on the standard contained in the Rules of Practice and Procedure for Administrative
Hearings Before the Office of Administrative Law Judges (OALJ’s Rules of Practice
and Procedure),30 which provides that “[n]o additional evidence may be admitted
unless the offering party shows that new and material evidence has become
available that could not have been discovered with reasonable diligence before the
record closed.”31 Under this standard, the moving party must show:
“(1) the evidence was discovered after [the record closed]; (2) due diligence was
exercised to discover the evidence; (3) the evidence is material and not merely
cumulative or impeaching; and (4) the evidence is such that a new trial would
probably produce a different result.”32
The Board considers these three exhibits as new evidence on appeal as they
were not referenced in Complainant’s filings in opposition to Respondent’s motion or
considered by the ALJ.33 Additionally, Complainant fails to demonstrate that the
new evidence meets the four factors identified above. While the evidence
Complainant seeks to introduce on appeal is not merely cumulative or impeaching,
it is apparent that these exhibits could have been discovered with reasonable
Respondent’s Response to Complainant’s Brief in Response to August 14, 2025,
Order at 3.
26

27

Id. at 3-4.

28

Id. at 4-5.

Xanthopoulos v. Mercer Inv. Consulting, ARB No. 2022-0032, ALJ No. 2021-SOX00017, slip op. at 11 (ARB Sept. 28, 2023) (citing Smith v. Franciscan Physician Network,
ARB No. 2022-0065, ALJ No. 2020-ACA-00004, slip op. at 6 (ARB June 29, 2023)).
29

30

Id. (citing Smith, ARB No. 2022-0065, slip op. at 6).

31

29 C.F.R. § 18.90(b)(1).

Boyd v. City of Chelsea, ARB No. 2024-0029, ALJ No. 2023-ACA-00001, slip op. at 8
(ARB Feb. 27, 2026) (citing Kossen v. Empire Airlines, ARB No. 2022-0004, ALJ No. 2019AIR-00022, slip op. at 11 (ARB June 13, 2023)).
32

See Aityahia v. Air Line Pilots Ass’n, ARB No. 2019-0037, ALJ No. 2018-AIR-00042,
slip op. at 3 n.2 (ARB May 19, 2020) (considering evidence not submitted to the ALJ is new
evidence on appeal).
33

6

diligence and were readily available prior to the closing of the record below.
Admittedly, all three exhibits were in Complainant’s possession as of June 9, 2023,
well before the start of the OALJ proceedings.34 Complainant even states that he
strategically chose to “preserve[] them for hearing.”35
Moreover, even if the Board were to accept and consider this evidence, these
exhibits would not produce a different result on the issue of timeliness. The three
exhibits memorialize alleged adverse actions taken against Complainant outside of
the 180-day statutory filing period. For example, Exhibit ARB-4, “June 2023 Second
Termination Memo,” is dated June 9, 2023, and purports to reflect a new and most
recent alleged adverse action taken against Complainant.36 Thus, even if the Board
were to accept and consider the June 2023 Second Termination Memo,
Complainant’s OSHA complaint would still be untimely, as it would have needed to
have been filed by December 6, 2023. Alternatively, if the June 2023 Second
Termination Memo was introduced and considered for the sole purpose of
demonstrating a retaliatory pattern extending beyond the initial April 2023
termination, Complainant has not explained how this newly alleged retaliation
prevented him from timely filing his OSHA complaint. As of June 2023,
Complainant still had approximately four months to file his OSHA complaint
following the April 2023 termination.
Accordingly, the Board disregards the new evidence presented on appeal.
2. Order Granting Summary Judgment and Timeliness of OSHA
Complaint
A. Summary Decision Standard
Summary decision is appropriate where “there is no genuine dispute as to
any material fact and the movant is entitled to decision as a matter of law.”37
In considering a motion for summary decision, the Board views the evidence and
makes all reasonable inferences in the light most favorable to the non-moving
party.38 If the moving party demonstrates an absence of evidence supporting the
non-moving party’s position, the burden shifts to the non-moving party to establish
the existence of a genuine issue of material fact that could affect the outcome of
34

Complainant’s Brief Pursuant to August 14, 2025 Order at 3.

35

Id. at 3.

Generally, the Board does not consider new arguments raised for the first time on
appeal, particularly new causes of action. See Boyd, ARB No. 2024-0029, slip op. at 7
(disregarding the complainant’s new protected activity claim on appeal).
36

37

29 C.F.R. § 18.72(a).

38

Neff, ARB No. 2019-0035, slip op. at 3 (citation omitted).

7

litigation.39 The non-moving party may not rest upon mere allegations, speculation,
or denials, but must instead set forth specific facts on each issue upon which the
non-moving party would bear the ultimate burden of proof.40 If the non-moving
party fails to show an essential element to their case, there can be no “genuine issue
as to any material fact,” since a complete failure of proof concerning an essential
element necessarily renders all other facts immaterial.41
B. Complainant’s OSHA Complaint was Untimely
SOX provides that a covered employer may not discharge, demote, suspend,
threaten, harass, or in any other manner discriminate against an employee in the
terms and conditions of employment because the employee engaged in activities
protected under the Act.42 Any employee who believes he has been discharged or
otherwise discriminated against in violation of SOX must file a complaint with the
Secretary of Labor “not later than 180 days after the date on which the violation [of
SOX] occurs, or after the date on which the employee became aware of the
violation.”43
Before the ALJ, Respondent moved for summary judgment arguing, among
other things, that Complainant’s OSHA complaint was untimely filed because it
was filed on March 14, 2024, more than 180 days after his placement on a PIP in
March 2023 and his employment termination in April 2023.44 Complainant did not
dispute these dates, and therefore, the ALJ concluded that the complaint was
facially untimely.45
On appeal, Complainant argues that the ALJ erred in limiting his review to
the March 2023 PIP and April 2023 termination by disregarding adverse actions
and retaliation that occurred thereafter.46 Specifically, Complainant contends that
the ALJ should have recognized “for the purposes of timeliness and equitable
tolling, that the appropriate cutoff should be October 6, 2023, the date of the final
Bolivian court reinstatement order, which represents the last adverse action

Feldman v. Risk Placement Servs., ARB No. 2020-0068, ALJ No. 2019-SOX-00052,
slip op. at (ARB Sept. 29, 2021) (citation omitted).
39

40

Id.

41

Id.

42

18 U.S.C. § 1514A(a)(1)-(2).

43

Id. § 1514A(b)(2)(D); see 29 C.F.R. § 1980.103(d).

44

Order Granting Summary Judgment at 4.

45

Id.

46

Comp. Br. at 3-4.

8

directly tied to the original retaliation claim[,]” and that the ALJ misapplied
Department of Labor (DOL) precedent in his analysis.47 The Board disagrees.
i.

Respondent’s non-compliance with the Bolivian court’s reinstatement
order was a new argument raised for the first time on appeal

Although the Board “construes arguments for self-represented litigants
liberally in deference to their lack of training in the law,” we also have a duty not to
become an advocate for a pro se litigant.48 The Board has carefully reviewed
Complainant’s filings under this liberal standard and finds that they raise a new
adverse action claim for the first time on appeal. Before the ALJ, Complainant’s
sole argument pertaining to the reinstatement order was that “[it] constitutes new
evidence confirming wrongful termination and retaliation[,]” which supports
equitable tolling under these circumstances.49 Yet, on appeal, Complainant
attempts to repackage this tolling argument into a new adverse action claim—
contending that Respondent’s alleged non-compliance with the reinstatement order
should be treated as its own adverse action such that his claim should be considered
timely.50 Under the Board’s well-established precedent, it declines to consider
arguments that a party raises for the first time on appeal.51
ii.

The Bolivian court reinstatement order is not an adverse action under
SOX

The Board also recognizes the parties’ brief discussion as to whether the
Bolivian court reinstatement order constitutes an adverse action under SOX.52 A
reinstatement order does not constitute an adverse action. Under SOX, an adverse
action must be taken by a covered employer, “or any officer, employee, contractor,
subcontractor, or agent of such company or nationally recognized statistical rating
organization.”53 A foreign tribunal does not fall within this definition or otherwise
qualify as a covered entity under the Act. Additionally, the reinstatement order
itself was not an “adverse action.” The Board has explained that an adverse action
is “simply something unfavorable to an employee, not necessarily unfair, retaliatory
47

Id.

Williams v. QVC, Inc., ARB No. 2020-0019, ALJ No. 2018-SOX-00019, slip op. at 7
n.43 (ARB Jan. 17, 2023) (citation omitted).
48

49

Complainant’s Opposition to Respondent’s Motion for Summary Judgment at 5.

50

Comp. Br. at 4.

51

Supra note 36.

Respondent’s Brief in Response to Complainant’s Opening Brief at 10;
Complainant’s Reply Brief to Respondent’s Response Brief at 3-4.
52

53

18 U.S.C. § 1514A(a).

9

or illegal. [It] is more than trivial when it is materially adverse as to dissuad[e] a
reasonable worker from protected activity.”54 Here, the reinstatement order was a
remedial measure issued by a foreign tribunal in response to a separate legal
proceeding; it was not an unfavorable action taken by Respondent.
iii.

Complainant did not provide Respondent with adequate notice of postreinstatement harassment allegations, and they are materially different
than the violations set forth in the OSHA complaint

The ALJ did not misinterpret DOL precedent. Before the ALJ, and in
response to Respondent’s Motion for Summary Judgment, Complainant introduced
a new theory not in the original OSHA complaint alleging that post-reinstatement,
he filed complaints “detailing over 50 incidents of [] harassment. These incidents
include a hostile work environment, attempts to undermine his professional
contributions, and efforts to fabricate a breach of contract to justify further
termination.”55 The ALJ declined to consider Complainant’s post-reinstatement
harassment allegations because of due process concerns.56 The ALJ cited Kingoff v.
Maxim Group, LLC57 and Sasse v. Office of the U.S. Attorney, U.S. Department of
Justice,58 in support of his reasoning, emphasizing that due process requires a
complaint to provide fair notice of alleged violations.59
On appeal, Complainant attempts to distinguish the late introduction of
unrelated claims in Kingoff and Sasse from the present case by asserting that his
claims of post-reinstatement harassment were introduced through “timely
procedural filings” and related to the April 2023 termination.60 However, the record
reflects that Complainant first introduced these new allegations only after
Respondent moved for summary judgment. Prior to that filing and during the
discovery process, Complainant admitted that all alleged retaliatory actions
occurred during or before April 2023.61 At no point during the OALJ proceedings did
Complainant move to amend his OSHA complaint to provide Respondent with
Petitt v. Delta Airlines, Inc., ARB No. 2021-0014, ALJ No. 2018-AIR-00041, slip op.
at 14 (ARB Mar. 29, 2022) (citations and internal quotations omitted).
54

55

Complainant’s Opposition to Respondent’s Motion for Summary Decision at 4.

56

Order Granting Summary Judgment at 6-7.

57

Kingoff v. Maxim Grp. LLC, ALJ No. 2004-SOX-00057 (ALJ July 21, 2004).

Sasse v. Off. of the U.S. Att’y, U.S. Dep’t of Just., ARB No. 2022-0077, ALJ No. 1998CAA-00007 (ARB Jan. 30, 2004).
58

59

Order Granting Summary Judgment at 6.

60

Comp. Br. at 4.

Respondent’s Motion for Summary Judgment, Ex. 3 at 13-14 (Requests for
Admission).
61

10

adequate notice of additional alleged adverse actions arising after his reinstatement
or that a new claim for relief was being raised.62
Moreover, the Board agrees with the ALJ that the nature of these allegations
arise wholly apart from, and constitute materially different SOX violations than,
those set forth in the OSHA complaint (a PIP and termination in 2023). As
highlighted above, Complainant describes concerns of a hostile work environment.
Additionally, in a supplemental filing in response to Respondent’s Motion for
Summary Judgment, Complainant alleged “[c]urrent harassment following
renewed protected activities.” This assertion thereby implies distinct, new
protected acts and a different form of retaliation post-reinstatement.63 This
assertion, even when considered together with the allegations raised in
Complainant’s Opposition to Respondent’s Motion for Summary Judgment, lacks
specific factual allegations or evidence sufficient to discern a cogent argument
linking it to the initial complaint. The recourse for any new, post-reinstatement
protected activity and/or SOX violation lies, if at all, in filing a new complaint.
Accordingly, the limitations period began when Complainant was placed on the PIP
in March 2023 and was subsequently terminated in April 2023, rendering his OSHA
complaint untimely.64
C. Complainant’s Other Arguments Do Not Justify Equitable Tolling
Although a SOX complaint must be filed no later than 180 days after the date
of the alleged violation of the Act or after the date on which the employee became
aware of the violation, the limitations period is not jurisdictional and is subject to
equitable modification.65 Equitable tolling and equitable estoppel are two different
and distinct equitable doctrines which this tribunal and courts have applied to

See 29 C.F.R. § 18.36 (noting that a judge may allow parties to amend and
supplement their filings after referral to the OALJ).
62

Complainant’s Response to Respondent’s Statement of Uncontroverted Material
Facts at 10 (emphasis added).
63

Although not argued on appeal, the continuing violations doctrine does not apply
here. Generally, the doctrine applies in limited circumstances where a series of related acts
collectively constitute a single unlawful employment practice, typically in the context of a
hostile work environment claim. See Robles v. Mr. Bults, Inc., ARB No. 2025-0058, ALJ
Nos. 2025-STA-00050, -00051, -00052, slip op. at 6 (ARB Feb. 20, 2026) (citation omitted)
(“The continuing violations doctrine does not apply to discrete acts of alleged discrimination
. . .” such as “termination, failure to promote, denial of transfer, or refusal to hire,” which
each independently trigger their own filing deadline.).
64

Trivedi v. Gen. Elec., ARB No. 2022-0026, ALJ No. 2022-SOX-00005, slip op. at 6
(ARB Aug. 24, 2022) (citations omitted).
65

11

modify a filing deadline.66 Equitable tolling is a rare and “extraordinary measure
that applies only when [a party] is prevented from filing despite exercising that
level of diligence which could reasonably be expected in the circumstances.”67 In
determining whether to toll the time in which a party may seek review, the Board
has recognized several classes of situations in which a moving party may be entitled
to equitable tolling, including (1) the party has raised the precise statutory claim in
issue but has done so in the wrong forum; (2) the party has in some extraordinary
way been prevented from filing; and (3) the party has some excusable ignorance of
the respondent’s discriminatory act.68 The party requesting tolling bears the burden
of establishing circumstances that justify modifying the appeal deadline.69
Before the ALJ, Complainant argued that his OSHA complaint was timely
under equitable tolling principles.70 Specifically, Complainant averred that:
(1) the statute of limitations issue was resolved because the OALJ’s issuance of a
Notice of Docketing and Notice of Hearing indicated that the claim was timely;
(2) new evidence warranted tolling because the reinstatement order confirms
wrongful termination and retaliation; (3) employer misconduct warranted equitable
tolling because Respondent opposed discovery and limited Complainant’s access to
evidence stored in company systems; and (4) the continuing violation doctrine
applies because Complainant has faced continuous retaliation since his
reinstatement in September 2024.71
The ALJ considered and rejected these arguments, explaining that:
(1) routine procedural notices from OALJ do not resolve the timeliness of a
complaint; (2) ignorance of the law does not justify equitable tolling;
(3) the seriousness of the allegations does not excuse compliance with statutory
filing deadlines; and (4) the Bolivian court’s decision had no bearing on whether the
OSHA complaint was timely filed.72 The ALJ also determined that Complainant
failed to identify any specific threats or misconduct by Respondent that prevented
Martin v. Paragon Foods, ARB No. 2022-0058, ALJ No. 2021-FDA-00001, slip op. at
8 (ARB June 8, 2023) (citing Hyman v. KD Res., ARB No. 2009-0076, ALJ No. 2009-SOX00020, slip op. at 6 (ARB Mar. 31, 2010)).
66

67

Id. at 9 (quoting Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 322 (2d Cir.

2004)).
68

Id.

69

Id.

Order Granting Summary Judgment at 4-7; Complainant’s Opposition to
Respondent’s Motion for Summary Decision at 5.
70

Order Granting Summary Judgment at 4-7; Complainant’s Opposition to
Respondent’s Motion for Summary Decision at 5.
71

72

Order Granting Summary Judgment at 4-7.

12

him from filing a timely complaint, and that allegations of post-complaint
harassment were unrelated to the adverse actions identified in the original OSHA
complaint.73 Thus, the ALJ concluded that Complainant failed to demonstrate
extraordinary circumstances warranting equitable tolling.74
On appeal, Complainant maintains that tolling is warranted due to proven
employer misconduct and an objective fear of retaliation.75 First, Complainant
alleges the following misconduct by Respondent: (1) failing to investigate SOXprotected disclosures; (2) issuing an unsubstantiated PIP; (3) lacking internal due
process prior to termination; (4) acting hostile and demeaning during the
termination process; (5) deliberately obfuscating the corporate structure to shield
U.S.-based entities; (6) using Incontact Bolivia as a corporate veil for coordinated
decision-making by U.S. entities; (7) not complying with reinstatement orders by
Bolivian legal authorities; (8) attempting to impose relocation through
reinstatement; (9) issuing a second termination letter for the alleged failure to
relocate; and (10) abusing the judicial system by failing to comply with
reinstatement orders.76 Second, Complainant contends that these events establish a
clear and objective basis for fear of retaliation.77 Third, Complainant claims his
decision to not file a complaint with OSHA was an effort to prevent escalation and
to resolve the matter within the Bolivian legal system.78 Fourth, Complainant
alleges that retaliation and harassment have continued following reinstatement.79
The Board disagrees.
Complainant has not met his burden of establishing circumstances that
justify modifying the appeal deadline. Complainant’s allegations of employer
misconduct that prevented him from filing a timely case are vague, conclusory,
and/or unsupported by evidence in the record.80 Even if any of these allegations are
true, including, but not limited to, Respondent refusing to comply with the Bolivian
reinstatement order, opposing or limiting discovery, or continuing to engage in
73

Id.

74

Id. at 7.

75

Comp. Br. at 5.

Id. at 5-6. The Board recognizes that several of these employer misconduct
allegations are presented for the first time on appeal.
76

77

Comp. Br. at 7-8.

78

Id. at 7.

79

Id.

Of the recognized classes of situations in which a moving party may be entitled to
equitable tolling, as described above, Complainant does not specifically identify any of the
three. The Board construes his arguments as asserting that he was, in some extraordinary
way, prevented from filing his OSHA complaint.
80

13

harassing behavior, Complainant has failed to show how such conduct prevented
him from filing his OSHA complaint in a timely manner. The Board finds these
arguments unpersuasive, particularly in light of the fact that the alleged
misconduct did not prevent Complainant from pursuing his legal action in Bolivia
or occurred after the complaint filing deadline. Rather, it appears that Complainant
mistakenly relied on his strategic decision to pursue his employment claim through
the Bolivian legal system rather than through DOL. This strategic decision is not
an extraordinary circumstance outside of Complainant’s control that prevented a
timely filing. Accordingly, the Board affirms the ALJ’s conclusion that
Complainant’s arguments are insufficient to warrant the application of equitable
tolling.
3. Complainant’s Motion to Compel Discovery Responses and Request for
Subpoenas
On April 22, 2025, Complainant filed a Motion to Compel Discovery
Responses and Request for Subpoenas (Motion to Compel) requesting Respondent to
produce documents, respond to interrogatories and requests for admissions, and to
authorize subpoenas to key witnesses. This motion was pending when the ALJ
issued the Order Granting Summary Judgment. In the Order Granting Summary
Judgment, the ALJ stated, “[n]either party has filed a motion before the
undersigned describing any ongoing discovery disputes.”81
Before the Board, Complainant argues that the ALJ erred by failing to
address and rule on the Motion to Compel, thereby depriving him of the opportunity
to substantiate his allegations of misconduct and to rebut Respondent’s claims.82
The Board agrees with Complainant that the ALJ erred in failing to address and
rule on the Motion to Compel. Nevertheless, this error was harmless, as the Motion
to Compel was immaterial to Complainant’s timeliness and equitable tolling
concerns below. Complainant attempts to recharacterize this motion on appeal by
asserting that the discovery request “directly related to equitable tolling,
jurisdiction, and employer liability.”83 The motion, however, made no reference to
equitable tolling. Rather, it stated that discovery was “essential to resolve
jurisdiction, protected activity and retaliation questions.”84
Complainant also filed this motion after submitting his response to
Respondent’s Motion for Summary Judgment. In that response, Complainant
identified only outstanding discovery issues concerning extraterritoriality and
81

Order Granting Summary Judgment at 6.

82

Comp. Br. at 8.

83

Id.

84

Motion to Compel at 3-4.

14

jurisdiction—seeking declarations from Respondent’s managers that would
demonstrate Complainant’s employment was functionally integrated with U.S.
operations.85 Again, in neither filing did Complainant identify concerns or seek
discovery related to timeliness or equitable tolling. Therefore, while the ALJ erred
in in failing to address and rule on the Motion to Compel, such error was
harmless.86
CONCLUSION
For the reasons stated above, we AFFIRM the ALJ’s Order Granting
Summary Decision. Accordingly, Complainant’s complaint is DENIED.
SO ORDERED.

ELLIOT M. KAPLAN
Administrative Appeals Judge

PHILIP G. KIKO
Administrative Appeals Judge

85

Complainant’s Opposition to Respondent’s Motion for Summary Judgment at 2-3.

As to Complainant’s other arguments on appeal, including, but not limited to
jurisdictional, corporate responsibility, and post-reinstatement retaliation issues, the Board
concludes that it does not need to resolve them as it affirms the ALJ’s holding that
Complainant’s OSHA complaint was untimely filed and equitable tolling principles do not
apply.
86

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A8ae0d0a749f948d6. Public record. Not legal advice.