U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

APOSTOLOS XANTHOPOULOS,

COMPLAINANT,

MERCER INVESTMENT

CONSULTING, SUBSIDIARY

OF MARSH & MCLENNAN

COMPANIES, INC.,

ARB CASE NO. 2022-0032

ALJ CASE NO. 2021-SOX-00017

ALJ JODEEN M. HOBBS

DATE: September 28, 2023

RESPONDENT.

Appearances:

For the Complainant:

Apostolos Xanthopoulos; Pro Se; Mount Prospect, Illinois

For the Respondent:

Alexa J. Laborda Nelson, Esq., and Edward T. Ellis, Esq., Littler

Mendelson, P.C.; Philadelphia, Pennsylvania

Kelli C. Fuqua, Esq.; Littler Mendelson, P.C.; Austin, Texas

Before HARTHILL, Chief Administrative Appeals Judge, and PUST,

Administrative Appeals Judge

DECISION AND ORDER

HARTHILL, Chief Administrative Appeals Judge:

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). 1 This is Complainant Apostolos Xanthopoulos’

(Xanthopoulos) second SOX case against Respondent Mercer Investment Consulting

(Mercer), his former employer. In the first SOX case, Xanthopoulos alleged that

Mercer unlawfully terminated his employment when he engaged in activity

protected by SOX. The Administrative Review Board (ARB or Board) dismissed

Xanthopoulos’ first SOX case on June 29, 2020, because Xanthopoulos’ initiating

complaint with the United States Department of Labor (Department) Occupational

Safety and Health Administration (OSHA) was not timely. In this second SOX case,

Xanthopoulos alleges that Mercer blacklisted him in violation of SOX by interfering

with his attempts to secure subsequent employment. Xanthopoulos also attempts to

reargue his first, untimely SOX claim against Mercer.

A Department Administrative Law Judge (ALJ) dismissed Xanthopoulos’

second SOX case. The ALJ denied Xanthopoulos’ attempts to reargue his first SOX

claim under the doctrine of res judicata, dismissed all but one of Xanthopoulos’

blacklisting claims because they were not timely filed, and entered summary

decision on Xanthopoulos’ remaining blacklisting claim concerning a position at

Charles Schwab because there was no evidence that blacklisting occurred.

Xanthopoulos appealed the denial of his attempt to reargue his first SOX claim and

the entry of summary decision on his claim concerning blacklisting at Charles

Schwab to the Board on April 2, 2022. 2 For the reasons that follow, we affirm.

BACKGROUND

1. Xanthopoulos’ Termination from Mercer and His First SOX Claim

Xanthopoulos worked for Mercer from 2013 to 2017. 3 He was hired by Bryon

Willy. 4 Xanthopoulos alleges that he discovered that Mercer was manipulating

investment portfolio ratings and knowingly disseminating those ratings to clients. 5

18 U.S.C. § 1514A, as implemented by 29 C.F.R. Part 1980 (2023).

Xanthopoulos did not appeal the ALJ’s dismissal of the other, untimely blacklisting

claims. Xanthopoulos also originally claimed that he had been prevented from obtaining a

new position with Mercer’s parent company, Marsh & McLennan Companies, Inc. (Marsh &

McLennan), in October 2020. Xanthopoulos voluntarily withdrew that claim, Decision and

Order (D. & O.) at 2-3, and does not pursue it in this appeal.

D. & O. at 5 (citing Deposition of Apostolos Xanthopoulos (Comp. Dep.) at 133).

Id. (citing Comp. Dep. at 155; Deposition of Bryon Willy (Willy Dep.) at 132).

Xanthopoulos v. U.S. Dep’t of Lab., 991 F.3d 823, 828 (7th Cir. 2021).

Xanthopoulos raised concerns about this conduct internally with Mercer beginning

in 2014 and externally with the SEC beginning in 2015. 6 Xanthopoulos argues that

Mercer retaliated against him for raising these concerns by terminating his

employment in October 2017. 7

Complainants alleging retaliation in violation of SOX must file a complaint

with OSHA within 180 days of the date the violation occurred. 8 Xanthopoulos did

not file a SOX complaint with OSHA until September 18, 2018, nearly a year after

Mercer terminated his employment. 9 Accordingly, OSHA dismissed Xanthopoulos’

complaint as untimely. 10 Xanthopoulos objected to OSHA’s decision and the matter

was assigned to an ALJ. Before the ALJ, Xanthopoulos argued that the limitations

period should be equitably tolled because he mistakenly believed that his

complaints to the SEC covered and preserved his SOX retaliation claim. 11 The ALJ

disagreed and dismissed Xanthopoulos’ complaint. 12

Xanthopoulos appealed to the ARB, which affirmed the ALJ’s decision. 13

Although the ARB recognized that tolling may be appropriate where “the plaintiff

has raised the precise statutory claim in issue but has mistakenly done so in the

wrong forum,” the ARB concluded that Xanthopoulos’ SEC complaints did not set

forth a SOX retaliation claim or seek SOX remedies. 14

See Complainant’s Petition for Review (Petition) at 7.

Xanthopoulos, 991 F.3d at 829-30.

18 U.S.C. § 1514A(b)(2)(D); 29 C.F.R. § 1980.103(d).

Xanthopoulos, 991 F.3d at 830.

Id.

Xanthopoulos v. Marsh & McLennan Cos., ALJ No. 2019-SOX-00008, slip op. at 2

(ALJ Mar. 22, 2019).

Id. at 2-3.

Xanthopoulos v. Marsh & McLennan Cos., ARB No. 2019-0045, ALJ No. 2019-SOX00008, slip op. at 5 (ARB June 29, 2020).

Id. at 3; accord id. at 5 (“Nothing in Complainant’s SEC filings indicates that

Complainant sought or wanted the SEC to investigate his discharge or restore his

employment or wages to him. Thus, his SEC filings cannot constitute the precise statutory

claim as contemplated by equitable principles. Further, it is clear that Complainant did not

mistakenly file a SOX whistleblower claim with the SEC, but deliberately filed with the

SEC a non-SOX claim for the purpose of remedying Respondent’s wrongful conduct that he

complained of and seeking a whistleblower award.”).

Xanthopoulos then appealed to the Seventh Circuit Court of Appeals, which

affirmed the ARB’s decision. 15 Like the ARB, the Seventh Circuit determined that

“Xanthopoulos sought not to vindicate his right to be free from retaliation under

Sarbanes-Oxley in the [SEC filings] but rather to prosecute Mercer’s securities

fraud, a separate and independent remedy.” 16

2. Xanthopoulos’ Blacklisting Claim and Second SOX Complaint

In 2019, Xanthopoulos interviewed for a position with Charles Schwab. 17 He

interviewed with Romain Ramora, the hiring manager and deciding official, and

with Andrei Egorov, Ramora’s supervisor. 18 Xanthopoulos was not selected for the

position. 19 He alleges that Charles Schwab did not select him because Willy passed

negative information or information about his protected activity to Egorov through

Xanthopoulos’ former colleagues Juan Espina and Mark Raaberg. 20

Xanthopoulos worked with Willy and Espina under Raaberg’s management

for six months in 2005 at the Federal Home Loan Bank of Chicago (FHLBC). 21

Xanthopoulos alleges that the FHLBC terminated his employment because he

performed a study there that revealed accounting irregularities. 22

Xanthopoulos, 991 F.3d at 825.

Id. at 834 (internal quotations and citation omitted). The Seventh Circuit also

reasoned that “even if we assume that Xanthopoulos filed [his SEC complaints] to cure the

retaliation, the record suggests Xanthopoulos sought Dodd-Frank’s anti-retaliation

protections, not Sarbanes-Oxley’s.” Id.

D. & O. at 5 (citing Deposition of Andrei Egorov (Egorov Dep.) at 15, 17-18).

Id. (citing Comp. Dep. at 13-14; Egorov Dep. at 17-19, 23, 58); see also Egorov Dep.

at 24-25.

D. & O. at 5 (citing Egorov Dep. at 11); Comp. Dep. at 29.

D. & O. at 4 (citing Complainant’s Brief in Response to Motion for Summary

Decision of Respondent Mercer Investment Consulting (Comp. MSD Opp. Br.) at 40-41;

Comp. Dep. at 147); see also Petition at 7, 18.

D. & O. at 5 (citing Comp. Dep. at 31, 38, 75-76, 91).

Comp. Dep. at 75-76, 79-83.

By 2019, Espina had moved to a position with Charles Schwab. 23

Xanthopoulos’ theory below was that Willy relayed negative information about him

and his performance at Mercer, and/or information about his protected activity, to

Espina and Raaberg sometime between 2014 and 2017 when Xanthopoulos and

Willy (but not Espina or Raaberg) were working at Mercer, 24 and that Espina or

Raaberg later passed that information to Egorov, or otherwise used their influence

over Charles Schwab, to block his selection. 25

Xanthopoulos filed a complaint with OSHA on January 29, 2020, alleging

that Mercer, through Willy, unlawfully blacklisted him in violation of SOX. 26 OSHA

found that the available evidence did not support Xanthopoulos’ allegations and

dismissed the complaint. Xanthopoulos objected to OSHA’s findings and the case

was assigned to an ALJ.

3. ALJ’s Dismissal of Xanthopoulos’ Attempt to Reargue First SOX Claim

Xanthopoulos’ early filings with the ALJ in this second case suggested that

he was attempting to reargue the wrongful discharge claim against Mercer that had

been dismissed in his first SOX case. 27 Consequently, on July 26, 2021, the ALJ

issued an Order to Show Cause directing Xanthopoulos to address why any

allegations related to his first complaint should not be dismissed. 28 After receiving

D. & O. at 5 (citing Egorov Dep. at 30). Xanthopoulos also asserts that Raaberg

worked with a company serving as a vendor to Charles Schwab. Complainant’s Reply to

Mercer Response Brief and Appendix of July 27, 2022 (Comp. Reply Br.) at 7; Comp. Dep. at

108. Although Raaberg may have also worked at Charles Schwab at some point in the past,

there was no evidence that he worked there at or around the time that Xanthopoulos

interviewed for the position there. D. & O. at 5 n.9 (citing Comp. Dep. at 108). There is also

no evidence that Raaberg worked for Mercer. Id.

Xanthopoulos only alleges that Willy shared information about him with Espina and

Raaberg sometime while Xanthopoulos was working at Mercer between 2014 and 2017, i.e.,

two or more years before he interviewed with Charles Schwab in 2019. He does not argue

that Willy shared information about him closer in time to the interview. See Comp. Dep. at

43-45.

D. & O. at 4 (citing Comp. MSD Opp. Br. at 40-41; Comp. Dep. at 147); see also

Petition at 7, 18.

As noted above, Xanthopoulos’ OSHA complaint also encompassed other claims that

are not part of this appeal. See page 2 & n.2.

See Order to Show Cause at 1-2.

Id. at 2.

Xanthopoulos’ and Mercer’s responses, the ALJ dismissed all allegations regarding

Xanthopoulos’ first SOX Complaint as barred by the doctrine of res judicata. 29

4. Discovery Before the ALJ

During the proceedings before the ALJ, Xanthopoulos, who is proceeding pro

se, committed several discovery and procedural errors. Additionally, it appeared

early on that Xanthopoulos intended to pursue discovery on issues not relevant to

his blacklisting claim, including discovery on his dismissed wrongful discharge

claim. Consequently, the ALJ closely regulated the proceedings. The ALJ’s case

management has become a point of contention on appeal, as Xanthopoulos accuses

the ALJ of becoming frustrated with, and biased against, him because of his

discovery and procedural mistakes and inexperience with litigation.

The discovery issues began when Xanthopoulos requested the ALJ issue

fifteen witness subpoenas. 30 This exceeded the default number of depositions a

party may take without seeking leave from the ALJ (ten). 31 Xanthopoulos also

suggested on the subpoena forms that he intended for the deponents to produce

their cell phones, included the ALJ’s name in the caption as a plaintiff, set the

deposition dates without consulting with Mercer’s counsel, and set deposition dates

as soon as one week after requesting the issuance of the subpoenas. 32 The ALJ

issued an order on July 15, 2021, noting these flaws and instructing Xanthopoulos

that he needed to comply with the Office of Administrative Law Judges (OALJ)

Rules of Practice and Procedure (Rules). 33 The ALJ also warned that Xanthopoulos’

failure to comply with the order could result in sanctions, including dismissal of his

claim. 34

On July 23, 2021, Xanthopoulos attempted to file with the ALJ six emails

with thirty-eight attachments and dozens of links to external documents. 35 It was

Order Dismissing Untimely Claims at 2-4.

See Order to Confer and Notice of Status Conference (Order to Confer) at 1.

See 29 C.F.R. § 18.64(a)(2)(i)(A).

Order to Confer at 1.

Id.

Id. at 3.

Order to Show Cause at 2.

not clear whether Xanthopoulos served Mercer’s counsel with these materials. 36

Then, on July 27, 2021, Xanthopoulos sent the ALJ another voluminous set of

documents via email. 37 Consequently, the ALJ issued orders on July 26, 2021, and

July 28, 2021, advising Xanthopoulos that the filings would not be uploaded into the

electronic docket, ordering that any document filed with the ALJ needed to be

concurrently served on Mercer’s counsel, and ordering that Xanthopoulos was not to

copy anyone in the ALJ’s office on such correspondence. 38

On August 7, 2021, Xanthopoulos sent nineteen emails to various individuals

and companies requesting affidavits commenting on Xanthopoulos’ work

performance. 39 In the email, Xanthopoulos suggested that the ALJ asked

Xanthopoulos to solicit the affidavits, and stated that the recipients could

communicate with the ALJ’s law clerk ex parte. 40 In violation of the ALJ’s

instructions just ten days prior, Xanthopoulos copied the ALJ’s law clerk and did

not copy opposing counsel on the emails to the potential witnesses. 41

The ALJ issued another order on August 12, 2021, expressing concern with

the prejudice Xanthopoulos’ invocation of the ALJ’s name and authority in his

communications with the potential witnesses might have on the their testimony. 42

The ALJ also noted Xanthopoulos’ violation of the ALJ’s orders requiring

Xanthopoulos to not copy the ALJ’s office on correspondence. 43 The ALJ warned

Xanthopoulos that failure to comply with orders may result in the exclusion of

evidence from the record, advised Xanthopoulos to abide by the OALJ Rules

concerning integrity and ethical conduct, and warned Xanthopoulos that failure to

comply with directions or to adhere to reasonable and ethical standards of conduct

could result in his exclusion from the proceedings or dismissal of his complaint. 44

Id. at 2 n.1.

Order Rescheduling Status Conference and Directing Parties Not to File Routine or

Discovery Materials at 1-2.

Id.; Order to Show Cause at 2 n.1.

Order Directing Complainant Not to Contact this Office Ex Parte at 2.

Id. Xanthopoulos sent a copy of the Order to Show Cause with each email. Id.

Id.

Id. at 3.

Id.

On August 6, 2021, the parties submitted competing position statements to

the ALJ concerning their proposed depositions. 45 After a prehearing conference on

August 25, 2021, the ALJ issued an order allowing Xanthopoulos to take two

depositions (of Willy and Egorov) and Mercer to take one deposition (of

Xanthopoulos). 46 The ALJ ordered that after taking these depositions, the parties

were to file position statements regarding whether additional discovery was

needed. 47

Once these depositions were complete, Xanthopoulos requested seven

additional depositions, including of Raaberg and Espina. 48 The ALJ denied

Xanthopoulos’ request and closed discovery. The ALJ concluded that Xanthopoulos’

“reasons [for the additional depositions were] speculative at best for most of the

proposed witnesses [including Espina and Raaberg] and harassing for another . . .

.” 49

5. ALJ’s Entry of Summary Decision on Charles Schwab Blacklisting Claim

After discovery closed, Mercer moved for summary decision, arguing that

there was no evidence that anyone at Mercer took any action to interfere with

Xanthopoulos’ effort to secure employment at Charles Schwab. The ALJ agreed and

entered summary decision on March 18, 2022.

The ALJ concluded that there was no evidence that Willy relayed derogatory

information to Espina or Raaberg, or that Espina or Raaberg then interfered with

the selection process at Charles Schwab. The ALJ observed that Willy testified at

his deposition that he did not recall corresponding with Raaberg since 2008, did not

recall corresponding with Espina since 2009, did not know Egorov, was not asked

ALJ.

Respondent’s August 6, 2021 Letter to ALJ; Complainant’s August 6, 2021 Letter to

Order Establishing Initial Discovery Limits and Cancelling Hearing at 2.

Id. In a subsequent order, the ALJ restricted Willy’s deposition to three-and-a-half

hours, after Xanthopoulos signaled that he intended to raise questions that were irrelevant

to Xanthopoulos’ application to Charles Schwab. Order Limiting Amount of Deposition

Time and Cancelling Conference at 2.

Order Closing Discovery and Setting Briefing Schedule at 1; Complainant’s Position

Statement at 2-4.

Order Closing Discovery and Setting Briefing Schedule at 1.

for a reference about Xanthopoulos by anyone at Charles Schwab, and did not share

Xanthopoulos’ written counseling with anyone other than Mercer’s Human

Resources and his superiors. 50 Similarly, the ALJ observed that Egorov testified at

his deposition that he did not know Willy, did not recall discussing Xanthopoulos’

performance at Mercer with Espina, did not get feedback regarding Xanthopoulos

from anyone at Mercer, and was unaware at the time of the interview that

Xanthopoulos had filed complaints with the SEC. 51 Thus, the ALJ stated that

Xanthopoulos “was afforded an opportunity to conduct discovery which included the

deposition of the person who [Xanthopoulos] alleged provided the derogatory

information about his whistleblowing activities (Byron [sic] Willy) and the person

who he alleged was tainted by the information supposedly supplied (Andrei Egorov).

Neither deposition uncovered any facts that support Complainant’s claim.” 52

The ALJ also determined that Xanthopoulos failed to present evidence to

challenge Willy’s and Egorov’s testimony. The ALJ determined that Xanthopoulos’

testimony about what he believed might have occurred was speculative and

insufficient to create a dispute of fact. 53 The ALJ also rejected Xanthopoulos’

assertions that Willy and Egorov lied in their depositions as speculative and

unfounded. 54 Finally, the ALJ rejected Xanthopoulos’ argument that he needed to

take additional depositions, including of Espina and Raaberg, to refute Willy’s and

Egorov’s testimony. The ALJ reiterated her earlier conclusion that Xanthopoulos’

“reasons for seeking the additional discovery were speculative at best.” 55

Xanthopoulos appealed the ALJ’s decision to the Board on April 2, 2022. 56

D. & O. at 5-6, 8 (citing Willy Dep. at 11-12, 104-05, 132).

Id. at 5 (citing Egorov Dep. at 47, 49, 63-64).

Id. at 9.

Id. (“Claimant has presented nothing, beyond his own assertions, to show that an

agent of [Mercer] communicated his name to another employer with the object of preventing

his employment; and he has not presented any evidence that [Mercer]’s alleged statements

have affirmatively prevented him from obtaining employment.”).

Id. (stating Xanthopoulos “offers nothing but speculation to substantiate this

accusation”).

Id.

An appellant in a SOX case must file a petition for review with the Board within 14

days of the date of the ALJ’s decision. 29 C.F.R. § 1980.110(a). Xanthopoulos filed his

Petition on April 2, 2022, fifteen days after the ALJ issued the D. & O. on March 18, 2022.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated the ARB the authority to issue agency

decisions under SOX. 57 The ARB reviews the ALJ’s denial of Xanthopoulos’ attempt

to relitigate his first, untimely SOX claim de novo. 58 The ARB also reviews the

ALJ’s grant of summary decision on his blacklisting claim de novo under the same

standard the ALJ applies. 59

DISCUSSION

1. Evidentiary Issues with Xanthopoulos’ Appeal

At the outset, we note that there are two significant evidentiary issues with

Xanthopoulos’ appeal. First, Xanthopoulos often fails to cite to evidence in the

record in support of the factual proffers in his filings with the Board. This, alone,

could be a sufficient reason to reject his appeal. 60

Due to a technical system miscalculation in this case, which has since been corrected, the

Board accepted Xanthopoulos’ Petition, issued a briefing schedule, and accepted the parties’

briefs before becoming aware of the tardiness when Mercer raised it for the first time in its

response brief. Although Mercer is correct that Xanthopoulos’ Petition was one day late,

given the unique and special circumstances of this case, and in the interest of justice and

fairness, we have elected to consider the merits of Xanthopoulos’ appeal.

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).

See Gladden v. The Proctor & Gamble Co., ARB No. 2022-0012, ALJ No. 2021-SOX00012, slip op. at 8-9 (ARB May 9, 2023) (citation omitted).

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

See May v. AGL Servs. Co., ARB No. 2022-0015, ALJ No. 2020-PSI-00001, slip op. at

6 (ARB Sept. 14, 2023); see also Friend v. Valley View Cmty. Unit Sch. Dist. 365U, 789 F.3d

707, 711 (7th Cir. 2015) (“We are not required to scour through hundreds of pages of

deposition transcript in order to verify an assortment of facts, each of which could be

located anywhere within the multiple depositions cited.”); McKinzy v. Internal Revenue

Serv., 367 F. App’x 896, 897 (10th Cir. 2010) (dismissing appeal given appellant’s “failure to

point to any part of the record on which he relies”); Moore v. F.D.I.C., 993 F.2d 106, 106 (5th

Cir. 1993) (dismissing appeal because “[p]laintiffs’ brief specifies no place in the record and

identifies no proof to support statements [of fact]”).

Second, Xanthopoulos relies on new evidence not supplied to the ALJ below.

Among other things, he supplied two affidavits he prepared and signed himself and

screenshots of an excel spreadsheet and a webpage. 61 Xanthopoulos also filed a

“Supplement to Complainant’s Reply to Mercer Response Brief and Appendix of

July 27, 2022” (Comp. Supp. Br.), with another new affidavit and over 900 pages of

apparently new material attached.

The Board generally does not consider materials presented for the first time

on appeal. 62 When considering whether to consider new evidence, the Board relies

on the standard contained in the OALJ Rules, 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.” 63 Xanthopoulos has not argued that the new

evidence supplied for the first time on appeal was not previously available and

could not have been discovered with reasonable diligence before the record closed. 64

Consequently, the Board may properly decline to consider the new materials.

Despite these evidentiary issues, the Board has thoroughly reviewed the

record and the new materials supplied by Xanthopoulos. Even considering these

materials, we affirm the ALJ for the reasons set forth below.

Petition at 3-4; Comp. Br. at 53-54; Comp. Reply Br. at 15, 18. In one of the

affidavits, Xanthopoulos refers to a conversation Xanthopoulos allegedly had with Espina in

January 2022, which he asserts helps establish that (1) Espina and Willy remained in

contact well past when Willy claims they did, and (2) that Raaberg may have spoken to

Egorov about Xanthopoulos. Petition at 3, 14. Xanthopoulos referred to this conversation in

his Opposition to Mercer’s Motion for Summary Decision below, although he did not attest

to the conversation in an affidavit at the time. Comp. MSD Opp. Br. at 15. It is not clear

from the D. & O. whether the ALJ took the alleged conversation with Espina into

consideration. The information contained in the remainder of the first affidavit, and all the

information contained in the second affidavit, appear to be information Xanthopoulos did

not share with the ALJ.

Smith v. Franciscan Physician Network, ARB No. 2022-0065, ALJ No. 2020-ACA00004, slip op. at 6 (ARB June 29, 2023) (citations omitted).

Id. (quoting 29 C.F.R. § 18.90(b)(1)).

Cf. Comp. Supp. Br. at 4 (“As told, review by the ARB may not include or consider

this additional information I am submitting herein. I have no qualms. At the same time,

events keep happening that obligate me to disclose this additional information.”).

2. The ALJ Properly Entered Summary Decision

As noted above, the ARB reviews an ALJ’s grant of summary decision de novo

under the same standard the ALJ applies. 65 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.” 66 In considering a motion for summary decision, the

ARB views the evidence, and makes all reasonable inferences, in the light most

favorable to the non-moving party. 67

If the moving party demonstrates an absence of evidence supporting the nonmoving 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. 68 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. 69 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. 70

A. Xanthopoulos Did not Present Evidence that Mercer Blacklisted Him

As set forth above, Xanthopoulos alleges that Mercer violated SOX by

blacklisting him and causing him to not be selected for a position with Charles

Schwab. “[B]lacklisting occurs when an individual or a group of individuals acting

in concert disseminates damaging information that affirmatively prevents another

person from finding employment.” 71 “[B]lacklisting requires an objective action—

Feldman, ARB No. 2020-0068, slip op. at 4 (citation omitted).

29 C.F.R. § 18.72(a).

Perez v. Citigroup, Inc., ARB No. 2017-0031, ALJ No. 2015-SOX-00014, slip op. at 34 (ARB Sept. 30, 2019).

Feldman, ARB No. 2020-0068, slip op. at 4 (citation omitted).

Id. (citation omitted).

Id. at 4-5 (citation omitted).

Beatty v. Inman Trucking Mgmt., Inc., ARB No. 2011-0021, ALJ Nos. 2008-STA00020, -00021, slip op. at 6 (ARB June 28, 2012) (quotations and citation omitted).

there must be evidence that a specific act of blacklisting occurred.” 72 “Subjective

feelings on the part of a complainant toward an employer’s action are insufficient to

establish that any actual blacklisting took place.” 73

As explained above, Xanthopoulos’ theory is that Willy relayed negative

information about Xanthopoulos or information about Xanthopoulos’ protected

activity to Espina and/or Raaberg sometime between 2014 and 2017 while

Xanthopoulos was working with Willy at Mercer. Xanthopoulos believes that Espina

and/or Raaberg then, in turn, either relayed that information to Egorov or otherwise

used their influence over the Charles Schwab company to ensure Xanthopoulos was

not hired there several years later. We agree with the ALJ that there is no

cognizable and competent evidence in the record to establish either link in this

alleged derogatory chain. Accordingly, Xanthopoulos cannot prove that blacklisting

occurred, and the ALJ’s entry of summary decision was appropriate.

i. The First Link in the Alleged Derogatory Chain: Willy Relaying Information

to Espina and/or Raaberg

As observed by the ALJ, Willy denied communicating with Espina or Raaberg

after Xanthopoulos engaged in protected activity at Mercer, let alone sharing

negative information about Xanthopoulos or information about Xanthopoulos’

protected activity with them. 74 Xanthopoulos offers no cognizable, countervailing

evidence in rebuttal to Willy’s testimony. Instead, Xanthopoulos only offers

conjecture about what he thinks occurred based on bits of information he received

from Willy and others while working at Mercer.

In support of his claim, Xanthopoulos cites instances which led him to believe

that Willy, Espina, and Raaberg remained in contact between 2014 and 2017. 75

Pickett v. Tenn. Valley Auth., ARB Nos. 2002-0056, -0059, ALJ No. 2001-CAA-00018,

slip op. at 9 (ARB Nov. 28, 2003) (citation omitted).

Id. (citation omitted).

D. & O. at 5-6; see also Willy Dep. at 11-12.

Petition at 7 (“All this time [between 2014 and 2017], Bryon Willy was indicating to

me on several occasions and in several ways, that he was in communication with Espina

and Raaberg . . . .”); Comp. Reply Br. at 9 (“Based on things that Willy was telling me

during 2014-2017, Willy was in continuous communication about me and my alleged

performance at Mercer, with Raaberg and Espina . . . .”); Comp. Dep. at 108 (“Throughout

Specifically, he asserts that: (1) Willy, Espina, and Raaberg each separately

expressed at points over a thirteen- or fourteen-year span that Xanthopoulos did not

“belong in the industry,” which leads Xanthopoulos to believe that the three

discussed Xanthopoulos amongst themselves during that period; 76 (2) Willy once

complained to Xanthopoulos that Raaberg “made” Espina a Director at Charles

Schwab before Espina’s hiring there was announced, which Xanthopoulos believes

Willy could have only learned from Espina; 77 (3) Willy shared information about

Xanthopoulos with other individuals within Mercer, which leads him to conclude

that Willy must have disparaged him to Raaberg and Espina as well; 78 and (4) after

a lunch Xanthopoulos had with Espina in October 2014, Willy told Xanthopoulos he

knew about the lunch and added that “Mark [Raaberg] says hi.” 79 Xanthopoulos

then surmises that “[s]ince we established that Willy, Espina and Raaberg were

my history at Mercer, [Willy] would refer to conversations between himself, Espina and

Mark all the time.”).

Petition at 3, 14; Comp. Br. at 21-22. According to Xanthopoulos, a recruiter told

Xanthopoulos that Raaberg made the statement to a potential employer in 2008 or 2009,

Willy made the statement to Xanthopoulos while Xanthopoulos worked at Mercer, and

Espina made the statement to Xanthopoulos during a call in January 2022. Petition at 3;

Comp. Dep. at 97-99, 110. Xanthopoulos believes Willy and Espina were parroting a phrase

or sentiment that Raaberg had expressed about Xanthopoulos in the past, leading

Xanthopoulos to conclude that the three actively discussed Xanthopoulos amongst

themselves while Xanthopoulos was working at Mercer. Petition at 3, 14. Xanthopoulos has

not explained why the fact that the three allegedly expressed a common sentiment

regarding Xanthopoulos at separate points over a thirteen- or fourteen-year span implies,

without more, that the three remained in communication during that span, rather than

simply reaching their own, independent conclusions regarding Xanthopoulos based on their

personal experiences working with him.

Comp. Br. at 23; Comp. Dep. at 108, 117-18. Xanthopoulos admitted that he did not

ask how Willy knew that Raaberg had allegedly “made” Espina a Director, Comp. Dep. at

118, and Xanthopoulos otherwise failed to explain why it is reasonable to deduce that

Espina must have been the source of the information.

Comp. Br. at 11-12; Comp. Dep. at 105, 115-16, 125-26. Specifically, Xanthopoulos

asserts that his coworker at Mercer told him that she knew Xanthopoulos had prepared a

study that created consternation at the FHLBC, just like he did at Mercer years later.

Comp. Dep. at 105, 115-16. Xanthopoulos offered no evidence that Willy was the one who

shared information about the FHLBC study with the coworker. Furthermore, even

assuming Willy shared information about Xanthopoulos with others within Mercer,

Xanthopoulos has not explained why it would be reasonable to infer that he must have also

disparaged Xanthopoulos to “everyone,” including Espina and Raaberg.

Petition at 7; Comp. Dep. at 106-07.

talking about [Xanthopoulos], it is easy to conclude that they were at the very least

talking about [his protected activity and history of identifying SOX violations].” 80

To the contrary, tenuous evidence that Willy, Raaberg, and Espina may have

remained in contact over a period of years is not evidence that Willy was actively

disparaging Xanthopoulos to the other two or sharing information about

Xanthopoulos’ protected activity with them. Xanthopoulos’ proffer that it is “easy to

conclude” that the latter follows from the former is unreasonable, speculative, and

unsupported by evidence in the record. 81

Accordingly, we agree with the ALJ that there is no competent or cognizable

evidence that Willy passed derogatory information or information about

Xanthopoulos’ protected activity to Espina or Raaberg. Xanthopoulos’ speculation

and conclusions to the contrary are not supported by the evidence and are not

reasonable. Therefore, Xanthopoulos cannot establish the first link in the alleged

derogatory chain.

ii. The Second Link in the Alleged Derogatory Chain: Espina and/or Raaberg

Relaying Derogatory Information to Egorov or Otherwise Influencing the

Hiring Decisions at Charles Schwab

Even if Xanthopoulos could establish a dispute of material fact as to whether

Willy remained in contact with Espina and Raaberg, and as to whether Willy also

passed negative information about Xanthopoulos to them, Xanthopoulos would still

have to proffer evidence that Espina and/or Raaberg also subsequently passed that

information to Egorov or otherwise affected the hiring process at Charles Schwab

two or more years later. We agree with the ALJ that Xanthopoulos has failed to

present evidence that could establish this second link in the alleged chain.

Before the ALJ, Xanthopoulos focused on Espina as the individual who he

believed interfered with his selection at Charles Schwab. Xanthopoulos testified

that Egorov suddenly placed Xanthopoulos on hold for approximately ten minutes

Petition at 20.

See REXA, Inc. v. Chester, 42 F.4th 652, 665 (7th Cir. 2022) (“Simply put, these

inferences are barely conceivable and certainly not reasonable, so they will not be drawn at

summary judgment.” (quotations and citations omitted)); Charles v. Reichel, 67 F. App’x

950, 953 (7th Cir. 2003) (“He must satisfy his burden with definite, competent evidence, not

with mere speculation or unreasonable inferences.” (quotations and citations omitted)).

during their phone interview. 82 Xanthopoulos speculated that someone, likely

Espina, must have relayed negative information about Xanthopoulos to Egorov

during the ten-minute break because, after the break, Egorov’s tone towards

Xanthopoulos changed and Egorov only asked one more question—whether

Xanthopoulos previously worked at the FHLBC, which is where Xanthopoulos

worked with Willy, Espina, and Raaberg. 83 Xanthopoulos acknowledges that he did

not hear Egorov speak to anyone during the break, but assumes something adverse

must have occurred during the break because Egorov’s conduct was

“uncharacteristic.” 84 He conceded below that he had no other basis to conclude that

Espina interfered during his interview, besides Egorov’s “uncharacteristic” behavior

and question about the FHLBC. 85

As noted by the ALJ, Egorov denied receiving any information concerning

Xanthopoulos’ performance or his protected activity at Mercer from anyone. 86

Likewise, Egorov denied speaking with Espina during the break and denied

knowing that Espina, Raaberg, and Willy worked together at the FHLBC. 87 In

addition, Xanthopoulos states on appeal that he spoke with Espina in January

2022, and that Espina confirmed that he did not speak to Egorov about

Xanthopoulos and did not even know that Xanthopoulos had interviewed with

Egorov. 88 Consequently, Xanthopoulos acknowledges the speculative nature of his

theory regarding the break in his interview, conceding now that he does not know

when or how Espina may have served as the middleman in the alleged derogatory

chain, and that “[a]nything could have happened.” 89 Thus, Xanthopoulos’ theory

that Espina interfered with his interview at Charles Schwab is unsupported by any

Comp. Dep. at 22-23.

Id. at 22-26, 43, 47.

Id. at 23; Comp. Reply Br. at 11.

Comp. Dep. at 43 (“[T]he link that I have made is Egorov’s single question about the

[FHLBC], if that’s what—I mean, just to make your work easier, that’s the basis.”).

D. & O. at 5 (citing Egorov Dep. at 47, 63-64).

Egorov Dep. at 32.

Petition at 3, 14; Comp. Br. at 21-22.

Petition at 29; accord id. (“We do not know the exact manner in which Espina is

suspected to have interfered, and we do not know if Espina did this on his own, through Mr.

Raaberg, or at a steak dinner at Outback with Mr. Willy.”); Comp. Br. at 37-38 (conceding

that he may not have “hit it on the nose” with his first theory that Espina interrupted his

interview).

evidence in the record, and any remaining speculation about Espina’s involvement

is unreasonable and is insufficient to create a dispute of material fact.

On appeal, Xanthopoulos has shifted his focus to Raaberg as the one who

“probably . . . buried [him] to Egorov.” 90 Xanthopoulos does not offer a clear

explanation as to when, or under what circumstances, Raaberg might have relayed

negative information to Egorov. It appears Xanthopoulos’ theory that Raaberg

served as the middleman between Willy and Egorov rests on the recent call

Xanthopoulos alleges he had with Espina in January 2022. 91 During that call,

Espina allegedly denied speaking with Egorov himself, but stated that “Mark

[Raaberg] might have.” 92 Xanthopoulos has not stated whether Espina elaborated

on this comment, or whether Espina offered (or was asked for) any factual basis for

it. Indeed, Xanthopoulos even concedes that Espina’s proffer that Raaberg “might”

have spoken with Egorov was “conjecture[ ].” 93 As with the remainder of

Xanthopoulos’ theories, the stray statement from Espina that a conversation

between two other individuals “might” have occurred is unreasonable and

unsubstantiated speculation.

Comp. Br. at 37-38; accord Petition at 18 (“Discovery so far, points to the possibility

that Egorov communicated with Mark Raaberg about me, as opposed to or in addition to

Juan Espina.”).

Petition at 20, 29; Comp. Br. at 37-38. Mercer argues the affidavits supplied by

Xanthopoulos, including the one concerning his call with Espina, include hearsay that

should not be considered by the Board. Brief of Respondent Mercer Investment Consulting

LLC at 9 n.6. Although the OALJ’s Rules of Evidence limit the admissibility of hearsay (29

C.F.R. §§ 18.801-.806), the regulations applicable to this SOX action state that “[f]ormal

rules of evidence will not apply, but rules or principles designed to assure production of the

most probative evidence will be applied.” 29 C.F.R. §1980.107(d); see also id. § 1980.107(a)

(stating that the OALJ’s Rules apply “[e]xcept as provided in this part”). Consequently,

ALJs and the Board need not disregard statements that may otherwise constitute hearsay.

See Barber v. Planet Airways, Inc., ARB No. 2004-0056, ALJ No. 2002-AIR-00019, slip op.

at 8-9 (ARB Apr. 28, 2006) (interpreting same regulation under AIR 21).

Petition at 3. Xanthopoulos has not been consistent in what Espina allegedly said

about Raaberg communicating with Egorov. In the affidavit, Xanthopoulos declared that

Espina told him “Mark might have” spoken with Egorov. Id. at 3. In his Petition,

Xanthopoulos quoted Espina as allegedly stating “it was Raaberg that probably talked to

Egorov.” Id. at 5. In his Opposition to Respondent’s Motion for Summary Decision below, he

quoted Espina as allegedly saying “I did not talk to Egorov, but I don’t know if Mark didn’t.”

Comp. MSD Opp. Br. at 30.

Comp. Br. at 21.

Xanthopoulos also speculates that, short of directly speaking with Egorov,

Raaberg may have had influence over the hiring decisions at Charles Schwab

generally, and may have used that power to preclude Xanthopoulos from being

hired there (when or through who, Xanthopoulos does not specify). 94 Xanthopoulos

believes Raaberg had such power or influence because: (1) Raaberg had been in the

industry for years; 95 (2) Raaberg worked for an important vendor for Charles

Schwab; 96 (3) Espina and another former coworker from the FHLBC who worked

under Raaberg both later worked at Charles Schwab; 97 and (4) Willy allegedly told

Xanthopoulos that Raaberg “made” Espina a Director at Charles Schwab. 98

Xanthopoulos offered no evidence to substantiate that Raaberg’s stature in

the industry or role in a company that served as a vendor to Charles Schwab gave

him the ability to influence Charles Schwab’s hiring decisions. Xanthopoulos also

offered no evidence that even if Raaberg did have such power, he used it in this

case. Thus, as with Espina, Xanthopoulos has failed to offer evidence that could

create a dispute of material fact as to whether Raaberg interfered with

Xanthopoulos’ potential employment at Charles Schwab.

Accordingly, we agree with the ALJ that Xanthopoulos has failed to present

evidence that could raise a dispute of material fact that the alleged derogatory

chain from Willy, to Espina and/or Raaberg, to Egorov existed. Accordingly, the

ALJ’s entry of summary decision was appropriate.

B. Xanthopoulos’ Collateral Attacks on D. & O. Are Not Persuasive

Xanthopoulos also makes collateral attacks on the ALJ’s entry of summary

decision. Xanthopoulos contends that (1) Willy and Egorov were not credible

witnesses; and (2) the ALJ became biased against Xanthopoulos and treated him

unfairly because of his procedural errors and inexperience. We reject both

arguments.

See Petition at 7, 11; Comp. Reply Br. at 7.

Petition at 11; Comp. Dep. at 119-20.

Comp. Reply Br. at 7.

Petition at 11, 21.

Comp. Dep. at 108, 117-18; see also Petition at 11; Comp. Br. at 23.

i. Xanthopoulos’ Attacks on Willy’s and Egorov’s Credibility

Xanthopoulos accuses Willy of committing perjury during his deposition

when he testified that he did not recall corresponding with Espina after 2009. 99 As

discussed in Section 2.A.i., above, Xanthopoulos asserts that Willy made clear to

Xanthopoulos during Xanthopoulos’ employment at Mercer between 2014 and 2017

that Willy was still in contact with Espina at that time. 100 Xanthopoulos also argues

that Egorov is not credible because of his inability to recall the specifics of his

interview with Xanthopoulos during his deposition. 101 Xanthopoulos argues that

instead of accepting Willy’s and Egorov’s testimony at face value, the ALJ should

have conducted a hearing to assess their credibility. 102 Xanthopoulos also argues

that he should have been permitted to test the veracity of Willy’s and Egorov’s

testimony by deposing Espina and Raaberg, the alleged middlemen in the

derogatory chain. 103

Xanthopoulos’ attacks on Willy’s and Egorov’s credibility do not aid him in

his bid to overturn the ALJ’s entry of summary decision. “The mere possibility that

E.g., Petition at 5, 12. Xanthopoulos also asserts that Willy lied when he said that he

did not discuss Xanthopoulos’ performance reviews or counseling at Mercer with anyone

other than his supervisors and Human Resources. Id. at 33; see Willy Dep. at 104-05.

Xanthopoulos argues this is a lie because a former coworker from Mercer recently told

Xanthopoulos that he knew from “coworkers and management at Mercer, that Mercer was

trying to get [Xanthopoulos] fired because of work [Xanthopoulos] had performed a few

years before he joined the firm in 2017,” and that he knew that “Mercer was delaying firing

[Xanthopoulos] because . . . [Xanthopoulos] had ‘filed something.’” Petition at 3; accord id.

at 5. Xanthopoulos does not state that the coworker named Willy as the source of the

information or explain the link between the alleged fact that Mercer was “trying to get

[Xanthopoulos] fired” with the alleged derogatory chain initiated by Willy leading to

Xanthopoulos’ non-selection at Charles Schwab years later. Xanthopoulos also asserts that

Willy lied when he claimed he “did not know [Xanthopoulos] had filed something” with the

SEC. Comp. Reply Br. at 11. Xanthopoulos misstates Willy’s testimony. Willy testified at

his deposition: “I am not aware of what was filed with the SEC. I am at a high level, I have

a vague awareness that something was filed, but I can’t comment on—on 12 SEC filings.

I’m not aware.” Willy Dep. at 7-8. Thus, Willy testified that he did not know specifically

what was filed with the SEC or that Xanthopoulos had filed twelve complaints, but he

admitted that he was aware something had been filed.

Xanthopoulos also states that in January 2022, Espina confirmed that he had been

in contact with Willy as recently as 2014. Petition at 3.

100

101

Id. at 5; Comp. Br. at 33.

102

Petition at 9.

103

E.g., id. at 12, 14, 20; Comp. Br. at 7; Comp. Reply Br. at 16.

the fact finder might reject the moving party’s evidence on credibility grounds is not

enough to forestall summary judgment for the moving party.” 104 “[W]hen challenges

to witness’ credibility are all that a plaintiff relies on, and he has shown no

independent facts—no proof—to support his claims, summary judgment in favor of

the defendant is proper.” 105 Even if there are credibility concerns, “the nonmoving

party must [still] present affirmative evidence in order to defeat a properly

supported motion for summary judgment.” 106

Even if we accept that a factfinder might question Willy’s or Egorov’s

credibility, Xanthopoulos still failed to present affirmative evidence in support of his

claim that Willy shared information about Xanthopoulos with Espina or Raaberg

and that Espina or Raaberg, in turn, shared that information with Egorov or

otherwise impacted Xanthopoulos’ potential employment at Charles Schwab.

Neither witness’s alleged lack of credibility can help Xanthopoulos forestall

summary decision where he cannot otherwise establish an essential aspect of his

blacklisting claim.

Xanthopoulos speculates that Espina and Raaberg might have rebutted the

testimony proffered by Willy and Egorov, so he should have been allowed to depose

them. 107 Xanthopoulos has not shown that either deposition would have altered the

evidence or assisted Xanthopoulos in avoiding the entry of summary decision.

Coates v. S.E. Milk, Inc., ARB No. 2005-0050, ALJ No. 2004-STA-00060, slip op. at

10 (ARB July 31, 2007).

104

Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008) (citing Dugan v. Smerwick

Sewerage Co., 142 F.3d 398, 406 (7th Cir. 1998)); accord Schoonejongen v. Curtiss-Wright

Corp., 143 F.3d 120, 130 (3d Cir. 1998) (“[I]f a moving party has demonstrated the absence

of a genuine issue of material fact—meaning that no reasonable jury could find in the

nonmoving party’s favor based on the record as a whole—concerns regarding the credibility

of witnesses cannot defeat summary judgment.” (citation omitted)).

105

106

Schoonejongen, 143 F.3d at 130 (quotations and citation omitted).

See Comp. Reply Br. at 16 (“The Judge handicapped my case and endorsed the

incidence of perjury by not allowing Espina to be deposed. Rationally, if one wants to know

connectivity of sorts between points A and C, one checks point A (Willy) and point C

(Egorov). If connectivity is not found, one checks point B, in-between (Espina).”). As set

forth above in Background Section 4, given Xanthopoulos’ discovery and procedural errors,

the ALJ closely regulated discovery. She initially permitted Xanthopoulos to only depose

Willy and Egorov, but gave Xanthopoulos the ability to demonstrate a need for additional

depositions. Xanthopoulos requested seven additional depositions, including of Espina and

Raaberg, which the ALJ denied. The ALJ concluded Xanthopoulos’ proffered need for

additional depositions, including of Espina and Raaberg, was “speculative at best.”

107

To the contrary, as noted above, Xanthopoulos admits that Espina, in a

conversation the two had while the case was pending with the ALJ, denied knowing

that Xanthopoulos interviewed with Egorov and confirmed that he did not speak

with Egorov about Xanthopoulos. 108

Regarding Raaberg, Xanthopoulos asserts that although Espina denied

speaking with Egorov himself, Espina told Xanthopoulos that Raaberg “might have”

spoken with Egorov. 109 As noted above, Xanthopoulos relies heavily on this stray,

unexplained, and unsubstantiated statement from Espina to inform his belief that

Raaberg influenced the hiring decision at Charles Schwab. 110 Yet, as set forth

above, Xanthopoulos concedes that Espina’s proffer that Raaberg “might have”

spoken with Egorov was “conjecture[ ]” on Espina’s part. 111

Consequently, Xanthopoulos has effectively conceded that it is

unsubstantiated speculation at this stage that Espina or Raaberg would offer any

contrary or countervailing testimony tending to establish that the alleged

derogatory chain might have existed. Xanthopoulos’ attempt to depose Espina and

Raaberg would be nothing more than a fishing expedition. 112 Therefore,

Xanthopoulos’ unsupported belief that Willy and Egorov lacked credibility do not

warrant reversing the ALJ’s entry of summary decision.

108

Petition at 3, 14.

109

Id. at 3.

110

Id. at 20, 29; Comp. Br. at 37-38.

111

Comp. Br. at 21.

See Moore v. U.S. Dep’t of Energy, ARB No. 1999-0047, ALJ No. 1998-CAA-00016,

slip op. at 4 (ARB June 25, 2001) (“[W]e note that a party is not entitled to postpone a

ruling on a motion for summary judgment in order to engage in further discovery when that

party has offered no more than speculation as to what facts might be uncovered and it is

clear that further discovery would be no more than a fishing expedition.” (citation omitted));

see also Webb v. Trader Joe’s Co., 999 F.3d 1196, 1204 (9th Cir. 2021) (“We cannot condone

the use of discovery to engage in ‘fishing expeditions’ where, like here, it is obvious that

Webb has no basis other than gross speculation [in support of her claim].” (quotations and

citation omitted)); Bastin v. Fed. Nat’l Mortg. Ass’n, 104 F.3d 1392, 1396 (D.C. Cir. 1997)

(finding discovery denial not an abuse of discretion where plaintiff was “unable to offer

anything but rank speculation to support” her claim and discovery “would amount to

nothing more than a fishing expedition”).

112

ii. The ALJ Did Not Show Bias or Mishandle the Proceedings

Xanthopoulos asserts that his discovery oversteps and blunders, described

above in Background Section 4, “turned the Judge out of favor towards [him] in this

case.” 113 According to Xanthopoulos, this led the ALJ to show “clearly favorable

bias” towards Mercer. 114 Xanthopoulos has not articulated any basis for the ARB to

conclude that the ALJ acted partially or with bias. ALJs are “presumed to act

impartially,” 115 and the Board typically requires a party accusing an ALJ of bias to

show some type of extra-judicial source of bias to support such a conclusion. 116

“Unfavorable rulings and possible legal errors in an ALJ’s orders generally are

insufficient to prove bias.” 117 Xanthopoulos has not cited any extra-judicial source of

bias in this case. Each of the actions and decisions upon which Xanthopoulos bases

his claim that the ALJ showed bias were within the scope of regulating, managing,

and adjudicating the proceedings. 118 Xanthopoulos may not agree with the ALJ’s

handling of the case, but Xanthopoulos has failed to meet his burden to demonstrate

that the ALJ was biased.

Short of outright bias, Xanthopoulos also accuses the ALJ of becoming

frustrated with him and denying him the adjudicative latitude to which he is

entitled as a pro se party. 119 Although the ALJ closely regulated the proceedings,

the steps she took to manage the case were warranted and well within the

discretion afforded to ALJs, given the circumstances of the case.

Xanthopoulos points to four specific instances in which he believes the ALJ

mishandled the proceedings and expressed frustration with Xanthopoulos. First,

Xanthopoulos asserts the ALJ “[sped] up the process by limiting the number of

deponents.” 120 Specifically, Xanthopoulos argues that the ALJ erred by precluding

113

Petition at 28.

114

Id. at 24; Comp. Br. at 21.

Vudhamari v. Advent Global Sols., ARB No. 2021-0018, ALJ No. 2018-LCA-00022,

slip op. at 4-5 (ARB Apr. 26, 2021) (citations omitted).

115

March v. Metro-North Commuter R.R. Co., ARB No. 2021-0059, ALJ Nos. 2019-FRS00032, -00035, slip op. at 22 (ARB Jan. 21, 2022) (citation omitted).

116

117

Vudhamari, slip op. at 5 (quotations and citation omitted).

118

See id.

119

Comp. Br. at 12-13.

120

Id. at 6.

him from deposing Espina and Raaberg. For the reasons discussed above, we

disagree. ALJs have wide discretion to limit discovery and will be reversed only

when their rulings were arbitrary or an abuse of discretion. 121 To establish that the

ALJ abused her discretion in limiting discovery, Xanthopoulos must identify “with

some precision” the information he expects he would have received through

additional discovery and how that information would have altered the evidence. 122

Xanthopoulos must offer more than “mere speculation” as to what facts might be

uncovered by additional discovery. 123 As explained above in Section 2.B.i.,

Xanthopoulos offered nothing more than “mere speculation” regarding Espina’s and

Raaberg’s testimony and has not shown that deposing either witness would have

allowed him to avoid summary decision.

Second, Xanthopoulos asserts that the ALJ falsely accused him of harassing a

witness, which “intimidated him” into not presenting all his evidence in response to

Mercer’s Motion for Summary Decision. 124 This argument is misplaced.

The witness in question is Xanthopoulos’ former colleague at Mercer.

Xanthopoulos has repeatedly hinted at or outright asserted during these

proceedings that the colleague and Willy had an extramarital affair. 125 When

Jeanty v. Lily Transp. Corp., ARB No. 2019-0005, ALJ No. 2018-STA-00013, slip op.

at 12 (ARB May 13, 2020) (citations omitted).

121

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

2019-TSC-00001, slip op. at 22 (ARB Nov. 9, 2022) (citation omitted); accord McNiece v.

Dominion Nuclear Conn., Inc., ARB No. 2015-0083, ALJ No. 2015-ERA-00005, slip op. at 7

(ARB Nov. 30, 2016) (“To establish that the ALJ abused her discretion in limiting discovery,

McNiece must, at a minimum, show how further discovery could have permitted him to

rebut DNC’s contentions . . . .” (citation omitted)).

122

See Nieman v. S.E. Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA-00021,

slip op. at 21 (ARB Oct. 5, 2020) (citation omitted).

123

124

Petition at 29, 31; Comp. Br. at 12-13.

Complainant’s Response to Order to Confer at 7 (“Several colleagues had become

uncomfortable with, and Mercer had frowned upon, an apparent non-business-type

‘friendship’ between [the colleague] and Willy.”); Comp. MSD Opp. Br. at 7 (“Willy fired me

. . . to cover-up the fact that he was essentially himself pushed out of Mercer because he

maintained an open extra-marital affair with [the colleague]. . . .”); Comp. Dep. at 254-55

(stating that he had been informed that “Willy was maintaining an extramarital affair

within Mercer”); Petition at 6 (“[The colleague], a Mercer co-worker with whom my boss,

Bryon Willy had maintained an intra-office, extra-marital affair . . . .”). In addition, during

the August 25, 2021 prehearing conference regarding discovery, Mercer’s counsel asserted

that Xanthopoulos had “sent documents to at least two current employers of these

125

Xanthopoulos sought to depose this colleague, the ALJ made clear that she would

only permit Xanthopoulos to seek discovery that was relevant and cautioned him to

“proceed . . . with the highest ethical standards and with integrity.” 126 The ALJ also

advised Xanthopoulos that any deposition must be “done professionally, ethically

and for solely the purposes of establishing this case.” 127 Despite this warning, in his

proffer to the ALJ regarding his need for additional depositions, Xanthopoulos again

insinuated that the colleague and Willy engaged in an affair, and suggested he

would have to “delve into” the issue if permitted to depose the colleague. 128

As a result, the ALJ found Xanthopoulos’ reasons for deposing the colleague

were “harassing,” and denied his request for the deposition. 129 The ALJ’s conclusion

was fair, given Xanthopoulos expressed intention to “delve” into the alleged affair,

which had no relevance to his blacklisting claim. It was also unreasonable for

Xanthopoulos to feel “intimidated” by the ALJ’s conclusion that Xanthopoulos’

purpose in seeking to depose this witness was “harassing.” The ALJ did not suggest

that Xanthopoulos was generally engaged in harassing behavior or otherwise

discourage him from presenting his case.

Third, Xanthopoulos asserts that the ALJ asked Xanthopoulos if he “would [ ]

like to withdraw the other [Charles Schwab blacklisting] claim as well and be done

with it,” which he says “betray[ed] a wish to be done with the whole thing

prematurely.” 130 Xanthopoulos omits the context and misstates the meaning of the

ALJ’s statement. When Xanthopoulos initiated this second SOX action, he identified

two claims: first, the Charles Schwab blacklisting claim, and second, a claim that he

had been unlawfully denied another position at Mercer’s parent company, Marsh &

individuals in which he’s reporting that female employees who he has on [his] witness list

had extra-marital affairs while they were at Mercer back in 2015. And he’s making contact

with them in ways that they consider harassing or causes them concern.” August 25, 2021

Hearing Transcript (Aug. 25 Tr.) at 29-30.

126

Id. at 32.

127

Id.

Complainant’s Position Statement at 4 (“[The colleague] and Bryon [Willy] were

seeing [sic] together all the time. As uncomfortable as that sounds to even delve into for

anyone and especially me, it is important to recognize the witness-potential that [the

colleague] may have, after having been made privy of almost everything I am trying to

prove today . . . .”).

128

129

Order Closing Discovery and Setting Briefing Schedule at 1.

130

Petition at 13.

McLennan. 131 At the August 25, 2021 prehearing conference, Xanthopoulos

expressed that he did not want to pursue the Marsh & McLennan claim:

[B]asically I will just volunteer by saying we can just focus

on the blacklisting for Schwab. The Marsh and McLennan

[sic] case changed into a complaint because I was guided by

OSHA to expand my — it was suggested to me by somebody

else to make that another blacklisting complaint. I list in

several places that I do not qualify for that position. In all

respects, I just qualify for some of the characteristics. So

therefore we can just go ahead if it pleases you, Your

Honor, to just take that out, the second one.[132]

Consequently, the ALJ stated she would order the claim withdrawn. 133 Later, in the

same hearing, Xanthopoulos expressed a similar reluctance to proceed with the

Charles Schwab blacklisting claim:

But Mr. Hughes [from OSHA] is the one who suggested to

me that I should file this blacklisting complaint. So to be

100 percent honest, this wasn’t even my idea. It was Mr.

Hughes’ idea who suggested to me, but you have another

complaint and please do this within six months.[134]

As a result, the ALJ questioned Xanthopoulos: “So if you were encouraged to file it,

great. If you have changed your mind and don’t want it to be filed, then let me know

and we can withdraw the whole case and move on.” 135 Despite his expressed

reluctance, Xanthopoulos stated he did not wish to withdraw the case. 136

See page 2 & n.2 (describing the other claims Xanthopoulos originally brought, in

addition to the Charles Schwab/blacklisting claim).

131

132

Aug. 25 Tr. at 6.

133

Id. at 6-7.

Id. at 14-15. In fact, Xanthopoulos expressed a similar reluctance to pursue the

claim when he filed objections with OALJ. Complainant’s April 15, 2021 Objections to

Secretary’s Findings at 1 (“It was not my original idea to file this blacklisting complaint.”).

134

135

Aug. 25 Tr. at 15.

136

Id.

In proper context, it is clear that, by asking Xanthopoulos if he wished to

withdraw his claim, the ALJ was not “betray[ing] [ ] a wish to be done with the

whole thing prematurely,” as Xanthopoulos suggests. Instead, the ALJ was

responding to the fact that Xanthopoulos had withdrawn one of his claims and

expressed reluctance to proceed with the other. She was justifiably seeking clarity

regarding his position.

Finally, Xanthopoulos argues that the ALJ “openly invited Opposing Counsel

to file a Motion to Dismiss.” 137 Once again, Xanthopoulos has misstated the ALJ’s

meaning and omitted important context. During the August 25, 2021 prehearing

conference regarding discovery limits, Mercer opposed Xanthopoulos taking several

depositions and indicated that it believed he had no basis for his claim. 138 After

establishing initial discovery limits, the ALJ stated:

And then within 30 days [after the depositions], I will

require both parties to either let me know their additional

discovery plans or, [ ], I seem to hear that, you know, there

may be an indication that [Mercer], after taking Mr.

Xanthopoulos’s deposition, may be filing something like a

motion to dismiss. Again, if I didn’t hear that correctly, I

apologize.[139]

Counsel for Mercer confirmed that it was possible Mercer would file such a

motion. 140 Thus, in context, it is clear that the ALJ was only repeating her

understanding of what Mercer was possibly going to file, to ensure that expectations

and dates for filings were clear. She did not “openly invite” the motion or encourage

its filing, as Xanthopoulos suggests.

Thus, we do not find any merit to Xanthopoulos’ claim that the ALJ

mishandled the proceedings. Instead, the ALJ carefully and closely regulated the

proceedings, consistent with the needs and circumstances of the case. As set forth in

Background Section 4, above, the record reflects that Xanthopoulos repeatedly

overstepped or mis-stepped with respect to his subpoenas, in his communications

137

Comp. Br. at 40.

138

Aug. 25 Tr. at 10.

139

Id. at 23-24.

140

Id. at 24.

with witnesses, in his ex parte communications with the ALJ’s staff, and with his

filings with the ALJ. He was frequently warned by the ALJ to abide by the ALJ’s

orders and OALJ Rules, yet still overstepped and committed infractions.

Whether these issues were the result of Xanthopoulos’ inexperience or

otherwise, it was fair for the ALJ to closely regulate the proceedings and she did not

treat Xanthopoulos unfairly as a pro se party. “While a pro se litigant must of

course be given fair and equal treatment, he cannot generally be permitted to shift

the burden of litigating his case to the courts, nor to avoid the risks of failure that

attend his decision to forgo expert assistance.” 141 Pro se complainants are equally

bound to follow the rules of practice and procedure as complainants represented by

counsel. 142 Although the ALJ issued several warnings and took an active role in

overseeing discovery and the proceedings, she remained fair and impartial and took

steps to manage the proceedings that were consistent with, and necessitated by, the

circumstances of the case.

3. The ALJ Correctly Applied the Doctrine of Res Judicata to Preclude

Xanthopoulos from Rearguing his First SOX Claim

As he did below, Xanthopoulos continues to reargue on appeal the merits of

his first SOX retaliation claim against Mercer and attacks the ALJ’s, the ARB’s,

and the Seventh Circuit’s decisions to dismiss that claim as untimely. Xanthopoulos

argues that he did not know that he had to file his SOX claim with OSHA and that

he believed his SEC complaints preserved his SOX claim. 143 He also takes aim at

the ARB’s closing footnote asserting that Xanthopoulos had admitted that a “kind

gentleman” told him that he needed to contact OSHA well before Xanthopoulos

finally did so. 144

We agree with the ALJ that the doctrine of res judicata bars Xanthopoulos’

attempt to relitigate his first SOX claim. Under the doctrine, “[a] final judgment on

the merits of an action precludes the parties or their privies from relitigating issues

141

Coates, ARB No. 2005-0050, slip op. at 9 (citation omitted).

142

Jeanty, ARB No. 2019-0005, slip op. at 12 (citations omitted).

143

Comp. Reply Br. at 18.

144

Comp. Br. at 48-49; see Xanthopoulos, ARB No. 2019-0045, slip op. at 5 n.6.

that were or could have been raised in that action.” 145 Xanthopoulos does not

dispute that there was a final judgment on the merits of the first SOX claim (the

ARB’s decision was affirmed by the Seventh Circuit); that the case involves the

same parties or their privies (Xanthopoulos and Mercer); or that Xanthopoulos is

attempting to raise the same cause of action that was litigated in the first case

(SOX wrongful discharge claim). Instead, Xanthopoulos only argues that the ALJ,

the ARB, and the Seventh Circuit made the wrong decision in the first case.

Whether the prior decision was wrong is irrelevant. 146 This is precisely the type of

re-argument that the doctrine of res judicata prevents. Accordingly, the ALJ

correctly denied Xanthopoulos’ attempt to reargue his first SOX claim.

CONCLUSION

For the foregoing reasons, we AFFIRM the ALJ. 147

SO ORDERED.

__________________________________________

SUSAN HARTHILL

Chief Administrative Appeals Judge

__________________________________________

TAMMY L. PUST

Administrative Appeals Judge

Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981), clarified on other

grounds by Rivet v. Regions Bank of La., 522 U.S. 470 (1998) (citations omitted); see also

Gladden, ARB No. 2022-0012, slip op. at 9 (“A party seeking to apply the doctrine [of res

judicata] must establish that (1) a court of competent jurisdiction entered a final decision on

the merits in a previous action, (2) the current action involves the same parties or their

privies in the previous action, (3) the current action raises claims that were litigated or

could have been raised in the previous action, and (4) the cases involve the same cause of

action or common nucleus of operative fact.”) (citations omitted).

145

Moitie, 452 U.S. at 398 (stating that “the res judicata consequences of a final,

unappealed judgment on the merits [are not] altered by the fact that the judgment may

have been wrong or rested on a legal principle subsequently overruled in another case.”

(citations omitted)).

146

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.

147

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.