U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

SHAHROOZ MARK JAHANBIN,

COMPLAINANT,

THE BOEING COMPANY,

ARB CASE NO. 2024-0035

ALJ CASE NO. 2023-AIR-00023

ALJ EVAN H. NORDBY

DATE: March 13, 2025

RESPONDENT.

Appearances:

For the Complainant:

Shahrooz Mark Jahanbin; Pro Se; Irvine, California

For the Respondent:

Caleb F. Hand, Esq.; Ogletree, Deakins, Nash, Smoak & Stewart, P.C.;

Memphis, Tennessee; David L. Schenberg, Esq.; Ogletree, Deakins,

Nash, Smoak & Stewart, P.C.; St. Louis, Missouri

Before THOMPSON and ROLFE, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM:

This case arises under the employee protection provision of the Wendell H.

Ford Aviation Investment and Reform Act for the 21st Century (AIR21). 1

Complainant Shahrooz Mark Jahanbin filed a whistleblower complaint with the

U.S. Department of Labor’s Occupational Safety and Health Administration

49 U.S.C. § 42121, as implemented by the regulations at 29 C.F.R. Part 1979 (2024).

(OSHA) alleging that Respondent The Boeing Company unlawfully retaliated

against him for engaging in protected activity. 2 OSHA dismissed the complaint. 3

Complainant objected to OSHA’s determination and the case was assigned to an

Administrative Law Judge (ALJ). 4 On April 1, 2024, the ALJ issued an Order

Granting Summary Decision (Order) as untimely. 5 Complainant petitioned the

Administrative Review Board (Board) for review of the ALJ’s Order. For the

following reasons, we affirm.

BACKGROUND

Complainant began working for Respondent in October 2009 as an aircraft

mechanic and later as an engineer. 6 On December 7, 2020, Respondent suspended

Complainant, and on January 28, 2021, Respondent terminated his employment

and designated him as “ineligible for rehire.” 7 Later in 2021, a Boeing contractor

hired Complainant. 8 On December 14, 2021, however, the Boeing contractor

discovered Complainant’s “ineligible for rehire” status, confiscated Complainant’s

security badge, and ended his employment contract. 9 Complainant reapplied in

January 2022, but was not hired. 10

On February 9, 2022, 377 days after Respondent terminated Complainant’s

employment, Complainant filed an AIR21 whistleblower complaint with OSHA. 11

This complaint only alleged that his suspension in December 2020 was unlawful

retaliation in violation of AIR21. 12 On September 7, 2023, Complainant filed a

10F

11F

Order Granting Summary Decision (Order) at 2.

Id.

Id. at 1.

Id. at 2.

Id.

OSHA Determination Letter at 1.

second complaint with OSHA alleging a broader set of AIR21-related violations. 13

On September 15, 2023, OSHA dismissed the complaint as untimely. 14

12F

13F

Complainant requested a hearing before the Office of Administrative Law

Judges. 15 On March 7, 2024, Respondent filed a Motion for Summary Decision. 16 On

April 1, 2024, the ALJ issued an Order Granting Summary Decision, finding

Complainant’s OSHA complaint untimely. 17 An AIR21 whistleblower complaint

must be filed with OSHA within 90 days after an alleged violation occurred. 18 The

ALJ found that Complainant filed his initial OSHA complaint 377 days after

Respondent terminated his employment with an “ineligible to rehire” status. 19 The

ALJ found that the limitations period began on January 28, 2021, when Respondent

first terminated Complainant’s employment, making his complaint untimely, and

concluding that no equitable modification factors applied. 20

14F

15F

16F

17F

18F

19F

Complainant filed a petition for review before the Board on April 4, 2024.

Both parties filed briefs.

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 the AIR21. 21 The Board

20F

Order at 2. Specifically, Complainant asserted that Respondent unlawfully

confiscated his security badge and ended his employment contract on December 14, 2021,

and refused to re-hire him on or around January 27, 2022, in retaliation for his

whistleblower activity. OSHA Determination Letter at 1.

Order at 2.

Id. at 2.

Id. at 1.

Id.

Id. at 4 (citing 29 C.F.R. § 1979.103(d)).

Id.

Id. at 4-5.

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); see also 29 C.F.R. § 1979.110.

reviews an ALJ’s grant of summary decision de novo under the same standard the

ALJ applies. 22 This includes pre-hearing dismissals based on timeliness. 23

21F

22F

DISCUSSION

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.” 24 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. 25 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 an issue of fact that could affect the outcome of the litigation. 26 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. 27 If the non-moving party fails to show an

essential element of 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. 28

23F

24F

25F

26F

27F

A complainant pursuing a whistleblower retaliation claim under AIR21, must

meet certain deadlines. 29 These deadlines apply whether a complainant is

represented by counsel or is proceeding pro se. 30 Complainants are responsible for

28F

29F

Xanthopoulos v. Mercer Inv. Consulting, ARB No. 2022-0032, ALJ No. 2021-SOX00017, slip op. at 10 (ARB Sept. 28, 2023) (citation omitted).

Lugg v. Lear Corp., ARB No. 2022-0008, ALJ No. 2021-SOX-00022, slip op. at 3

(ARB May 19, 2022) (citation omitted).

29 C.F.R. § 18.72(a).

Feldman v. Risk Placement Servs., Inc., ARB No. 2020-0068, ALJ No. 2019-SOX00052, slip op. at 4 (ARB Sept. 29, 2021) (citation omitted).

Id. (citation omitted).

Id. at 4-5 (citation omitted).

49 U.S.C. § 42121(b)(1).

Mehrotra v. Gen. Elec. Co., ARB No. 2022-0060, ALJ No. 2017-SOX-00014, slip op. at

4 (ARB Sept. 21, 2023); see also Jeanty v. Lily Transp. Corp., ARB No. 2019-0005, ALJ No.

2018-STA-00013, slip op. at 12 (ARB May 13, 2020) (citation omitted) (A complainant “is

not excused from the rules of practice and procedure applicable to this proceeding merely

because of his [or her] pro se status.”); Phox v. The Savoy at 21C, ARB No. 2021-0057, ALJ

No. 2019-FDA-00014, slip op. at 3 n.9 (ARB Jan. 6, 2022) (“While the Board does provide a

degree of latitude to pro se complainants, we also ‘must be able to impose appropriate

determining which statute, and which deadline, apply to their case and for meeting

that deadline. 31 Employees alleging employer retaliation in violation of AIR21 must

file their complaints with within 90 days of the alleged retaliatory act. 32

30F

31F

The Board has found that the statutes of limitation in whistleblower cases

begin to run on the date an employee receives “final, definitive, and unequivocal

notice” of an adverse employment decision. 33 The claim accrues on “[t]he date that

an employer communicates a decision to implement such a decision, rather than the

date the consequences of the decision are felt.” 34 The Board may modify a filing

deadline under equitable tolling or equitable estoppel principles. 35

32F

33F

34F

Here, the ALJ determined that it was undisputed that Complainant’s

complaints were untimely and concluded that none of the equitable tolling factors

apply. 36 We agree. Respondent suspended Complainant on December 7, 2020, and

terminated his employment with an “ineligible for rehire” status on January 28,

2021. 37 Applying the 90-day period for filing, Complainant was required to file a

complaint with OSHA no later than April 28, 2021. 38 Complainant did not file his

complaint until 377 days after he was terminated. 39 Neither party has disputed

this.

35F

36F

37F

38F

Complainant contends that the deadline should be extended based on the

continuing violations doctrine, equitable estoppel principles, and equitable tolling

principles. For the reasons that follow, however, we affirm the ALJ’s finding that

the limitations period began on January 28, 2021, when Respondent terminated

Complainant’s employment with an ineligible for rehire status.

sanctions . . . when they fail to comply with the . . . procedures in the administrative process

. . . .’”) (citation omitted).

Mehrotra, ARB No. 2022-0060, slip op. at 4.

49 U.S.C. § 42121(b)(1).

Mehrotra, ARB No. 2022-0060, slip op. at 5 (quoting Bauche v. Masimo Corp.

(Bauche I), ARB No. 2022-0035, ALJ No. 2022-SOX-00010, slip op. at 7 (ARB Sept. 27,

2022)).

Mehrotra, ARB No. 2022-0060, slip op. at 5 (citation omitted).

See Martin v. Paragon Foods, ARB No. 2022-0058, ALJ No. 2021-FDA-00001, slip

op. at 8-9 (ARB June 8, 2023) (citations omitted).

Order at 4.

Id.

1. Continuing Violation

The ALJ recognized that Complainant may point to his employment

termination from the Boeing contractor in December 2021 or the contractor’s failure

to rehire him in January 2022 as additional adverse actions that occurred within 90

days of filing his OSHA complaint. 40 The ALJ found, however, that Complainant

could not revive a stale claim by reapplying and being denied employment as a

follow-on effect of the original termination. 41

39F

40F

Complainant contends that the ALJ failed to consider the ongoing retaliation

he endured beyond his initial employment termination. 42 He asserts that being rehired only to be terminated again evidences a pattern of ongoing retaliation,

making his complaint timely. 43

41F

42F

The continuing violations doctrine may allow an employee who ordinarily

would be unable to recover damages for discrete acts of discrimination falling

outside the limitations period to avoid that bar if those acts are shown to be part of

a pattern of discrimination anchored by acts that occurred within the limitations

period. 44

43F

But it is well established that an employer simply refusing to rehire a

complainant who was designated as “ineligible for rehire” when terminated does not

inherently amount to a continuing violation because the focus remains on the

discriminatory nature of the original termination for timeliness purposes. 45 As such,

44F

Id.

Complainant’s (Comp.) Brief (Br.) at 8.

Id.

Trivedi v. Gen. Elec., ARB No. 2022-0026, ALJ No. 2022-SOX-00005, slip op. at 9

(ARB Aug. 24, 2022) (citation omitted).

See Johnsen v. Houston Nana, Inc. JV, ARB No. 2000-0064, ALJ No. 1999-TSC00004, slip op. at 5 (ARB Jan. 27, 2003) (refusing to rehire an employee who was designated

as “ineligible for rehire” does not amount to a continuing violation). A complainant may not

revive a stale claim by reapplying and being denied employment as a follow-on effect of the

original termination. To allow an employee who unsuccessfully sought reinstatement

following a discharge to claim a continuing violation would undermine the purpose of the

90-day period to file a claim. See Collins v. United Air Lines, Inc., 514 F.2d 594, 596 (9th

Cir. 1975) (“A discharged employee who seeks to be reinstated is really litigating the

unfairness of his original discharge because only if the original discharge was

discriminatory is he entitled to be reinstated as if he had never ceased working for the

employer.”).

the confiscation of his badge, termination of his contract in December 2021, and

refusal to rehire him do not amount to continuing violations of Complainant’s

December 2020 suspension and January 2021 employment termination. Therefore,

we conclude that Complainant has not demonstrated a pattern of ongoing

retaliation that would make his complaint timely.

2. Equitable Estoppel

The ALJ found no evidence established that Respondent misled Complainant,

and noted that Complainant, when represented by counsel, pursued a state law

discrimination complaint arising from his termination in a complaint filed in state

court on October 3, 2022. 46 Complainant contends that the ALJ erred and that

principles of equitable estoppel apply.

45F

Equitable estoppel applies where the employer has acted deliberately to

deceive, mislead, or coerce the employee into not filing a claim in a timely manner. 47

Equitable estoppel “presupposes that the plaintiff has discovered, or, as required by

the discovery rule, should have discovered, that the defendant injured him, and

denotes efforts by the defendant—beyond the wrongdoing upon which the claim is

grounded—to prevent the plaintiff from filing a timely complaint.” 48 Equitable

estoppel applies when a respondent or defendant prevents “a complainant from

suing in time by, for example, promising not to plead the limitations defense or by

presenting fabricated evidence to negate any basis for a claim.” 49

46F

47F

48F

Complainant contends that Respondent orchestrated an FBI raid to seize

evidence that he could have used to support his AIR21 complaint, which prevented

him from timely filing his complaint. 50 Delays in gathering documentation,

however, are insufficient to equitably estop or toll the deadline to file because

documentation is not necessary to file an OSHA complaint. 51 Thus, Complainant’s

inability to access documentation does not equitably estop or toll the deadline.

49F

50F

Order at 5.

Martin, ARB No. 2022-0058, slip op. at 8 (citing Droog v. Ingersoll-Rand Hussman,

ARB No. 2011-0075, ALJ No. 2011-CER-00001, slip op. at 3 n.6 (ARB Sept. 13, 2012)

(“[E]quitable estoppel occurs where an employee is aware of his [statutory] rights but does

not make a timely filing due to his reasonable reliance on his employer’s misleading or

confusing representations or conduct.”) (citation omitted)).

Martin, ARB No. 2022-0058, slip op. at 8 (citation omitted).

Id. (citation omitted).

Comp. Br. at 11, 24.

See Lugg, ARB No. 2022-0008, slip op. at 3, 5-7 (affirming the ALJ’s finding that an

inability to obtain documentation prior to filing an OSHA complaint is not an extraordinary

circumstance).

Complainant next contends that Respondent deliberately misled him, which

prevented him from timely filing his complaint. 52 He asserts that Respondent and

the Department of Justice entered into a Deferred Prosecution Agreement (DPA) in

late 2020, and that this made it difficult to follow OSHA procedural policies and

prevented him from timely asserting his claim. 53 Complainant also contends that

Respondent initiated an FBI raid on Complainant to seize documents, and that this

“effectively misled [him] about the nature and timing of his legal rights and

obligations,” which prevented him from timely filing his complaint. 54

51F

52F

53F

We are not persuaded by Complainant’s arguments. “To establish duress

sufficient to toll the running of the limitations period, [a complainant] must do more

than simply allege a subjective fear that the Respondents might retaliate against

him. Instead, he must show some act or threat by the Respondents that precluded

him from exercising his free will and judgment and prevented him from exercising

his legal rights.” 55

54F

Complainant’s argument that the DPA kept him from timely asserting his

claim is vague and he does not articulate how the DPA between Respondent and

federal prosecutors kept him specifically from filing his claim. 56 Complainant has

also not demonstrated any other instance in which Respondent misled him and

prevented him from filing a complaint with OSHA aside from his general assertion,

nor has he cited to evidence to support his claim. 57

55F

56F

On the contrary, Complainant litigated against Respondent in state court in

a case that was filed on October 3, 2022, during which time he was represented by

counsel. 58 Because Complainant participated in a legal interaction with Respondent

in state court, he has not demonstrated that Respondent misled him or prevented

him from timely filing his complaint. 59

57F

58F

Comp. Br. at 9, 21, 24.

Id. at 18, 21.

Id. at 24.

Bauche I, ARB No. 2022-0035, slip op. at 12 (quoting Farnham v. Int’l Mfg. Sols.,

ARB No. 2007-0095, ALJ No. 2006-SOX-00111, slip op. at 11 (ARB Feb. 6, 2009)).

Comp. Br. at 21.

Id.

Order at 5. Summary judgment was entered against him on November 2, 2023. Id.

See Bauche I, ARB No. 2022-0035, slip op. at 12-14 (finding that the complainant

was not dissuaded from filing with OSHA because “he actively participated in multiple

legal interactions with and against [the respondent] in federal and state court and openly

Therefore, we find that Complainant has not established that equitable

estoppel applies.

3. Equitable Tolling

The ALJ found that none of the principles of equitable tolling apply. 60

Complainant contends that the ALJ erred.

59F

A complainant’s inability to meet a deadline may also be equitably tolled due

to “plaintiff’s excusable ignorance of the employer’s discriminatory act.” 61 Equitable

tolling is a rare and “extraordinary measure that applies only when plaintiff is

prevented from filing despite exercising that level of diligence which could

reasonably be expected in the circumstances.” 62 The Board has recognized several

principal situations in which the limitations period may be tolled, including: (1)

when the movant has raised the precise statutory claim in issue but has done so in

the wrong forum; (2) when the movant has in some extraordinary way been

prevented from filing; and (3) when the movant has some excusable ignorance of the

respondent’s discriminatory act. 63 Complainant bears the burden of justifying the

application of equitable tolling. 64

60F

61F

62F

63F

First, Complainant contends that he raised the complaint in the wrong

forum. 65 Complainant asserts that Respondent’s actions, through the FBI’s

involvement, “led to confusion and misdirection about the proper forum and timing”

for his claim. 66

64F

65F

But Complainant does not cite any evidence that he raised his claim in a

timely manner in the wrong forum, nor has he cited evidence that Respondent

misled him into filing in the wrong forum. Complainant, through his counsel, filed a

claim against Respondent in Washington state court alleging that Respondent

discriminated against him based on race and national origin. 67 During the hearing,

66F

accused [the respondent] of the same fraud and wrongdoing as alleged in [his OSHA

whistleblower] case”).

Order at 4-5.

Martin, ARB No. 2022-0058, slip op. at 9 (citation omitted).

Id. (citations omitted).

Comp. Br. at 25.

Id.

Order at 5; Respondent’s Motion for Summary Decision, Exhibit 11 at 62-63.

Complainant vaguely alleged that he was a whistleblower. 68 That vague allegation,

however, is not enough to meet his burden to establish that he raised this precise

statutory claim in the wrong forum. 69 Moreover, he similarly has not presented any

evidence that Respondent misled him into filing a whistleblower complaint in state

court. We therefore reject his argument.

67F

68F

Second, Complainant contends that the deadline to file should be tolled based

on extraordinary circumstances because of the complexity of the situation and the

seizure of his documentation. 70 However, for the reasons stated above, we find that

the seizure of his documentation does not present grounds for an extraordinary

circumstance. Complainant has also not sufficiently articulated why the complexity

of this situation presents an extraordinary circumstance.

69F

It is undisputed that Respondent terminated Complainant’s employment on

January 28, 2021, and that Complainant did not file his OSHA whistleblower

complaint until 377 days later on February 9, 2022. 71 We have found that the

continuing violations doctrine, equitable estoppel, and equitable tolling do not

apply, and, thus, that Complainant’s OSHA complaint was untimely. Therefore, we

find that there was no genuine dispute as to any material fact and that Respondent

was entitled to a decision as a matter of law.

70F

Id. at 41-42. Ultimately, the judge found that there was nothing in the record that

indicated that Respondent terminated his employment because Complainant was a

whistleblower or for any discriminatory reason. Id. at 69.

See Martin, ARB No. 2022-0058, slip op. at 9 (the movant bears the burden of

establishing that they filed the precise statutory claim in issue in the wrong forum).

Comp. Br. at 9, 11, 21-22.

Order at 2.

CONCLUSION72

Accordingly, we AFFIRM the ALJ’s Order Granting Summary Decision

dismissing the complaint as untimely.

SO ORDERED.

ANGELA W. THOMPSON

Administrative Appeals Judge

JONATHAN ROLFE

Administrative Appeals Judge

In any appeal of this Decision and Order that may be filed, we note that the

appropriately named party is the Secretary, Department of Labor (not the Administrative

Review Board).

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.