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:

CODY SHARPE,

ARB CASE NO. 2024-0038

COMPLAINANT,

ALJ CASE NO. 2023-STA-00027

ALJ DREW A. SWANK

v.

DATE: April 29, 2026

GEIGER EXCAVATING, INC.,

CHRISTOPHER STABLER, and

BRUCE MERTZ,

RESPONDENTS.

Appearances:

For the Complainant:

Peter L. LaVoie, Esq. and Paul O. Taylor, Esq.; Truckers Justice

Center; Edina, Minnesota

For the Respondents:

Megan M. Torres, Esq. and Craig R. Patterson, Esq.; Beckman

Lawson, LLP; Fort Wayne, Indiana

Before BURRELL and KIKO, Administrative Appeals Judges

DECISION AND ORDER

This case arises under the Surface Transportation Assistance Act of 1982

(STAA), as amended, and its implementing regulations.1 Complainant Cody Sharpe

filed a complaint with the United States Department of Labor’s Occupational Safety

and Health Administration (OSHA) alleging that Respondents Geiger Excavating,

Inc., Christopher Stabler, and Bruce Mertz retaliated against him for engaging in

STAA protected activity. A United States Department of Labor Administrative Law

Judge (ALJ) issued an Order Granting Respondents’ Motion for Summary

1

49 U.S.C. § 31105(a); 29 C.F.R. Part 1978 (2025).

2

Judgment, Dismissing Complainant’s Claims with Prejudice, Denying Respondents’

Motion to Convert the Hearing, and Cancelling Hearing (Order Granting Summary

Decision). Complainant petitioned the Administrative Review Board (ARB or Board)

for review. For the following reasons, we summarily affirm the ALJ’s Order

Granting Summary Decision.

BACKGROUND

In May 2021, Geiger Excavating, Inc. (Geiger) hired Complainant as a driver

responsible for transporting heavy construction and excavation equipment to job

sites and performing snow removal during winter months.2 Beginning in January

2022, Complainant accepted a part-time position with Tri County Ambulance,

working overnight shifts on Fridays and Saturdays.3 After accepting this part-time

position, Complainant informed Stabler, his dispatcher, that he would be

unavailable to work weekends for Geiger.4

Between February 2 and 4, 2022, Complainant was assigned to perform snow

removal.5 During this assignment, Complainant sent a text message to Mertz,

his supervisor, stating, “this is the last snow fall I work.”6 On February 4, 2022,

at approximately 2:44 p.m., Stabler contacted Complainant and requested that he

complete a delivery assignment to Terre Haute, Indiana, over the weekend, on

either February 5 or 6.7 The assignment involved an approximately 200-mile, 10hour round trip.8 Complainant declined the assignment via text message, stating

that he was unavailable.9 Complainant did not provide an explanation for the

refusal.10 At the time of the refusal, Complainant had accumulated approximately

54.5 on-duty hours for Geiger during the relevant week of Monday, January 31,

2

Order Granting Summary Decision at 2.

3

Id. at 2.

4

Id.

5

Complainant’s Brief on Review (Comp. Br.) at 3.

The ALJ identified a discrepancy between the parties whether Complainant sent the

text to Stabler or to Mertz. Order Granting Summary Decision at 2 n.8. The ALJ noted that

the precise recipient was not material to the claim. In the light most favorable to

Complainant, we follow Complainant’s declaration and Complainant’s Memorandum of

Points and Authorities in Opposition to Respondents’ Motion for Summary Decision. Id.

6

7

Id. at 3.

8

Id.

9

Id.

10

Id.

3

2022, through Friday, February 4, 2022.11 Geiger operated seven days per week,

and its drivers were subject to the 70-hour rule.12

Following Complainant’s refusal, Mertz and Stabler discussed the matter,

as well as his previous refusal to perform future snow removal, and decided on

February 4 to terminate Complainant’s employment.13 Complainant’s next

scheduled workday was February 7, 2022.14 On that date, Stabler informed

Complainant that his employment was terminated.15 The Employee Termination

Form listed the reason for termination as: “[Mertz] needed Cody to move equipment

to Terre Haute on 2/5/22 and Cody said he doesn’t for Geiger on weekends. Cody

also text[ed Stabler] on 2/3/22 and stated he will no longer help with snow

removal.”16 During the February 7 meeting, Complainant told Stabler that he

refused the Terre Haute assignment because he believed he did not have sufficient

available hours to complete the trip.17

On February 9, 2022, Complainant filed a complaint with OSHA alleging

that Respondents retaliated against him in violation of the STAA.18 On January 31,

2023, OSHA issued Secretary’s Findings concluding that there was no reasonable

cause to believe a violation occurred and dismissed the complaint.19 Complainant

filed objections to the Secretary’s Findings and requested a hearing before the Office

of Administrative Law Judges (OALJ).20

On February 26, 2024, Respondents filed a Motion for Summary Decision and

a Memorandum in Support of Summary Decision.21 On March 12, 2024,

Complainant filed a Memorandum of Points and Authorities in Opposition to

11

Id.

12

Id. at 10 n.20.

See id. at 10, 10 n.22; Respondents’ Designation of Evidence and Table of Contents

in Support of Summary Decision, Exhibits (Exs.) A-B; see also Order Granting Summary

Decision at 2 (Stabler decided to terminate Complainant’s employment on February 3 after

receiving notice of the snow plow text).

13

14

See Order Granting Summary Decision at 3; Comp. Br. at 3-4.

15

Order Granting Summary Decision at 3.

Complainant’s Memorandum of Points and Authorities in Opposition to

Respondents’ Motion for Summary Decision, Ex. C at 1.

16

17

Order Granting Summary Decision at 3.

18

Id. at 1.

19

Id.

20

Id.

21

Id.

4

Respondents’ Motion for a Summary Decision.22 On April 5, 2024, the ALJ granted

Respondents’ Motion for Summary Decision concluding that, although Complainant

established that he suffered an adverse employment action, he failed to establish a

genuine issue of material fact that he engaged in protected activity under the

STAA.23 The ALJ further determined, in the alternative, that even if Complainant

had engaged in protected activity, he failed to establish a genuine issue of material

fact that such activity was a contributing factor in his termination.24

Complainant filed a timely petition for review with the Board. Both parties

filed briefs.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the ARB to review appeals

from ALJ decisions and to issue agency decisions in cases arising under the STAA.25

The Board reviews an ALJ’s grant of summary decision de novo, the same standard

the ALJ applies.26

DISCUSSION

The STAA’s whistleblower protection provision provides that a person may

not discharge, discipline, or discriminate against an employee regarding his pay,

terms, or privileges of employment because the employee has engaged in statutorily

protected activity.27 To prevail on a STAA claim, a complainant must prove by a

preponderance of the evidence that: (1) he engaged in protected activity;

(2) the employer took adverse employment action against him; and (3) the protected

22

Id. at 2.

23

Id. at 11.

24

Id.

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).

25

Robles v. Mr. Bults, Inc., ARB No. 2025-0058, ALJ Nos. 2025-STA-00050, -00051,

-00052, slip op. at 3 (ARB Feb. 20, 2026) (citing Kirschmann v. Hampton Rds. Transit, ARB

No. 2023-0002, ALJ No. 2021-NTS-00006, slip op. at 6 (ARB Feb. 14, 2024)).

26

49 U.S.C. § 31105(a)(1); see also 29 C.F.R. § 1978.102(a). STAA complaints are

governed by the legal burdens of proof set forth in the employee protection provisions of the

Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21).

49 U.S.C. § 31105(b)(1); 49 U.S.C. § 42121(b).

27

5

activity was a contributing factor in the adverse employment action.28 If the

employee meets his burden of proof, the employer may avoid liability by proving by

clear and convincing evidence that it would have taken the same unfavorable action

in the absence of the protected activity.29

The ALJ issued an Order Granting Summary Decision concluding that

Complainant failed to establish a genuine issue of material fact that he engaged in

protected activity under the STAA.30 As to Complainant’s February 4 refusal to

drive to Terre Haute, the ALJ found that Complainant’s text message reply of “I am

not [available]” did not constitute a protected complaint or refusal because it offered

no explanation that the drive would constitute an actual or a perceived safety

violation or that the refusal was based on a reasonable apprehension of serious

injury.31 Instead, the ALJ concluded that unexplained refusal was analogous to a

“silent departure” as it failed to put Respondents on notice of any protected

activity.32

Additionally, assuming arguendo, that Complainant had engaged in

protected activity, the ALJ concluded in the alternative that Complainant failed to

establish a genuine issue of material fact that any protected activity was a

contributing factor in the decision to terminate his employment. Specifically,

the ALJ found that Respondents terminated Complainant’s employment for nonretaliatory reasons33 and Stabler and Mertz were not aware of any actual or

perceived violations when they discussed and decided to terminate Complainant’s

employment on February 4 for refusing snow removal assignments and the Terre

Haute assignment.34

Complainant argues on appeal that the ALJ erred in his protected activity

analysis.35 Specifically, Complainant contends that the ALJ failed to consider the

full scope, timing, and context of his alleged protected activity as well as whether

49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R. § 1978.109(a); Halliday v. Transp. Express,

Inc., ARB No. 2023-0024, ALJ No. 2020-STA-00067, slip op. at 12 (ARB Oct. 7, 2024)

(citations omitted).

28

49 U.S.C. § 42121(b)(2)(B)(iv); 29 C.F.R. § 1978.109(b); Halliday, ARB No. 20230024, slip op. at 12 (citations omitted).

29

30

Order Granting Summary Decision at 9.

31

Id.

32

Id.

33

Id. at 10-11.

34

Id. at 10.

35

Comp. Br. at 9.

6

additional conduct not addressed by the ALJ qualified as protected activity.36

Complainant further argues that the ALJ erred in his contributing factor analysis

by failing to consider all instances of protected activity, improperly assessing

Respondents’ knowledge of such activity, and overlooking circumstances relevant to

causation, including Complainant’s ordinary work schedule and part-time

employment commitments.37

Upon consideration of the parties’ briefs on appeal and review of the record as

a whole, we conclude that the ALJ appropriately granted summary decision.

1. Protected Activity

We agree with the ALJ that Complainant’s refusal of the Terre Haute

assignment did not constitute protected activity because at the time of the refusal,

Complainant provided no explanation, and the surrounding circumstances did not

indicate to Respondents that the refusal was based on an actual or perceived safety

or regulatory violation.38 Rather, Complainant’s February 4 text message only

communicated an unwillingness to accept the assignment. Following both refusals,

Respondents decided on February 4 to terminate Complainant’s employment before

his next scheduled workday and informed him of that decision on February 7.39 We

36

Id. at 9-12.

Id. at 12-16. Complainant also avers that the ALJ erred by reaching alternate

findings on Respondents’ affirmative defense. Id. at 16-18. This argument is misguided as

the ALJ did not address or analyze whether Respondents would have taken the same action

absent protected activity. Order Granting Summary Decision at 11.

37

A refusal must convey enough context to put the respondent on notice that it is

grounded in a perceived violation. See cf. Calhoun v. U.S. Dep’t of Lab., 576 F.3d 201, 213

(4th Cir. 2009) (internal quotations and citations omitted) (“[H]owever broadly we construe

the statute, [c]learly there is a point at which an employee’s concerns and comments are too

generalized and informal to constitute” protected activity under the STAA.); DeTie v.

Transwood, Inc., ARB No. 2024-0041, ALJ No. 2022-STA-00038, slip op. at 9 n.57 (ARB

Mar. 25, 2026) (noting that while Calhoun’s language concerned the STAA’s complaint

clause, the same logic follows for the refusal clause).

38

Complainant argues on appeal that prior to being told his employment was

terminated, he engaged in protected activity on February 7, 2022, when he informed

Respondent that he would not have had enough hours to take the trip Respondent assigned

to him. We disagree that there is a genuine issue of material fact that he engaged in

protected activity in making this statement. While complaining of a lack of hours with

respect to an assignment may constitute protected activity under STAA, it is undisputed

that Complainant had enough hours as of the assignment on February 4. Order Granting

Summary Decision at 10. Complainant reasons after the fact that he would not have had

enough hours to take the Terre Haute assignment, but this was only after he completed the

work for the other employer. Comp. Br. at 11-12.

39

7

agree. Accordingly, we conclude that the ALJ did not commit reversible error in

granting summary decision for Respondents. Regarding Complainant’s refusal to

perform snow removal, he argues on appeal that it should constitute protected

activity.40 However, this appears to be a new protected activity claim raised for the

first time on appeal. Generally, the Board does not consider arguments raised for

the first time on appeal and we will not consider it here.41

2. Causation

We also agree with the ALJ that even assuming Complainant engaged in

protected activity, he failed to raise a genuine issue of material fact that such

activity was a contributing factor in his termination. As recognized in the Order

Granting Summary Decision, Respondent terminated Complainant’s employment

for legitimate, non-discriminatory reasons—specifically, his refusal to perform snow

removal assignments and the Terre Haute assignment. Finally, there is no genuine

issue of material fact that Respondents decided to terminate Complainant’s

employment before the February 7 communication42—therefore causation cannot be

proven as a matter of law.43 It is a central to the concept of causation, that for an act

to cause an outcome, the act must occur first.

40

Comp. Br. at 10.

Kossen v. Asia Pac. Airlines, ARB No. 2023-0047, ALJ No. 2023-AIR-00001, slip op.

at 7 n.32 (ARB May 30, 2025) (citing Xia v. Lina T. Ramey & Assocs., Inc., ARB No. 20230046, ALJ No. 2022-LCA-00013, slip op. at 21-22 n.117 (ARB Oct. 7, 2024)).

41

42

See supra note 17 and accompanying text and note 41.

See DeTie v. Transwood, Inc., ARB No. 2024-0041, ALJ No. 2022-STA-00038, slip op.

at 9 (ARB Mar. 25, 2026) (“For one action to be ‘because’ of the other, a communication of

the refusal is necessary.”) (citations omitted).

43

8

CONCLUSION

For the reasons stated above, we summarily AFFIRM the ALJ’s Order

Granting Summary Decision. Accordingly, Complainant’s complaint is DENIED.

SO ORDERED.

THOMAS H. BURRELL

Administrative Appeals Judge

PHILIP G. KIKO

Administrative Appeals Judge