U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

AMIEL GROSS,

ARB CASE NO. 2022-0005

COMPLAINANT,

ALJ CASE NO. 2021-SDW-00001

DATE: April 18, 2022

SAINT-GOBAIN CORP. et al.,

RESPONDENTS.

Appearances:

For the Complainant:

Jeanne M. Christensen, Esq. and John S. Crain, Esq.; Wigdor LLP;

New York, New York

For the Respondent:

Sarah E. Bouchard, Esq. and Brandon J. Brigham, Esq.; Morgan,

Lewis & Bockus LLP; Philadelphia, Pennsylvania

Before: Thomas H. Burrell, Randel K. Johnson, and Stephen M. Godek,

Administrative Appeals Judges; Judge Burrell, concurring in part and

dissenting in part

DECISION AND ORDER OF REMAND

PER CURIAM. This case arises under Safe Drinking Water Act (SDWA), the

Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) and their implementing regulations.1 Complainant Amiel Gross filed a

42 U.S.C. § 300j-9(i) (1994); 42 U.S.C. § 9610 (1972); 29 C.F.R. Part 24 (2018).

whistleblower complaint against Saint-Gobain Corp. et al. (Respondents) for alleged

retaliation. The ALJ issued an Order Granting Respondents’ Motion to Dismiss

(Order). Complainant appealed the ALJ’s order. We affirm in part, and reverse and

remand in part.

BACKGROUND

Complainant was hired to work for Respondents as in-house litigation

counsel in 2014. Complainant asserts that, in 2019 and 2020, he raised public

health concerns to Respondents regarding potential chemical contamination of

drinking water with perfluorooctanoic acid. On October 19, 2020, he was fired. In

the months that followed, the parties engaged in communication regarding

Complainant’s company cell phone, laptop, and hard drive. 2

On April 6, 2021, Complainant filed a complaint with the Occupational

Safety and Health Administration (OSHA). After filing the complaint, his counsel

publicized it. In response, Respondents issued media statements that Complainant

was fired after an investigation for violating its policies, which includes its

harassment prevention policy. On April 21, 2021, OSHA dismissed the complaint as

untimely.

On April 29, 2021, Complainant requested a hearing before an

Administrative Law Judge (ALJ) with the Office of Administrative Law Judges

(OALJ). Respondents filed a motion to dismiss on July 9, 2021, contending the

complaint was untimely filed and failed to state a claim upon which relief could be

granted.

The ALJ analyzed Complainant’s seven allegations of retaliation, dating from

October 2019 until April 2021. The ALJ determined five of these claims were

facially untimely, while two were timely. Complainant contended all claims were

timely based on the continuing violation doctrine. However, the ALJ determined

each allegation of retaliation represented a discrete act. The ALJ concluded that the

continuing violation doctrine did not apply and that the five facially untimely

allegations were time-barred by the 30-day statute of limitations.3

Complaint failed to return his laptop hard-drive until he received assurances from

Respondents that his personal family data would be appropriately safeguarded. As a result

of these communications, Complainant returned the hard-drive by November 14, 2020, and

he told Saint-Gobain he did not duplicate or disseminate any confidential information.

Order at 4-5.

Order at 5-8. These claims include: (1) the failure to promote in October 2019; (2)

Complainant’s firing on October 19, 2020; (3) a November 10, 2020 letter, in which

Respondents reminded Complainant of his professional obligations and addressed the

possibility of reporting him to state bars, disciplinary boards, and law enforcement

authorities for not returning the company’s hard drive and possibly saving confidential

The first timely claim is an email dated March 8, 2021, between the parties’

attorneys. Complaint contends this email, by itself, constitutes an act of retaliation,

characterizing it as threatening and malicious. The ALJ considered this email in

the larger context of prior communications between the parties. The ALJ

determined it was a professional, routine follow-up request regarding the status of

settlement negotiations. The ALJ determined the email was a discrete, nonharassing incident that neither threatened action nor requested that Complainant

refrain from action. Rather, the ALJ determined it was merely a request for a

conversation. The ALJ concluded that, giving Complainant all reasonable

inferences, considered alone, this email is not an adverse action and does not

support liability for unlawful retaliation. In sum, the ALJ concluded Complainant

failed to state a claim upon which relief could be granted because the email was not

an adverse action.4

The second timely claim is a set of alleged defamatory statements

Respondent made to the media in April 2021. The ALJ determined the statements

were not adverse actions, but simple factual statements about the circumstances

surrounding Complainant’s termination. The ALJ noted that Complainant

acknowledged that Respondents investigated him for subordination. In addition, the

ALJ opined that, since it was undisputed that Complainant’s counsel publicized the

OSHA complaint to media outlets, Respondents’ defense in a public forum could not

be used to fabricate an adverse action. The ALJ concluded Complainant failed to

state a claim upon which relief could be granted because the statements did not

constitute adverse actions.5

The ALJ opined that she did not reach the substance of Complainant’s

allegations but concluded only that no act of discrimination occurred within thirty

days prior to the filing of his complaint.

Complainant filed a timely appeal with the Board. Both parties filed briefs.

JURISDICTION AND STANDARD OF REVIEW

files; (4) communications in December 2020 and January 2021; and (5) a February 6, 2021

letter accusing Complainant of saving company files. Complainant does not appeal the

ALJ’s determination on these claims.

Id. at 8-13.

Id. at 13-14.

The Secretary of Labor has delegated to the Board the authority to issue final

agency decisions under the SDWA and CERCLA as amended.6 The Board reviews

orders dismissing complaints de novo.7

DISCUSSION

To prevail on a whistleblower complaint under the Acts, a complainant must

establish by a preponderance of the evidence “that the protected activity caused or

was a motivating factor in the adverse action alleged in the complaint.”8 If a

complainant makes this showing, “relief may not be ordered if the respondent

demonstrates by a preponderance of the evidence that it would have taken the same

adverse action in the absence of the protected activity.”9

A complainant who alleges unlawful retaliation under the SWDA may file a

complaint “within 30 days after such violation occurs.”10 The CERCLA applies the

same timeline.11 The limitation period begins to run “on the date that a complainant

receives final, definitive and unequivocal notice of a discrete adverse employment

action.”12

A party may move to dismiss a complaint for failure to state a claim upon

which relief can be granted or for timeliness.13 In considering a motion to dismiss,

an ALJ must accept the factual allegations in the complaint as true and draw all

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).

Boyd v. EPA, ARB No. 2010-0082, ALJ No. 2009-SDW-00005, slip op. at 2-3 (ARB

Dec. 21, 2011) (citing High v. Lockheed Martin Energy Sys., Inc., ARB No. 1998-0075, ALJ

No. 1996-CAA-00008, slip op. at 3 (ARB Mar. 13, 2001)); Lorenzetti v. Worldpay, Inc., ARB

No. 2020-0055, ALJ No. 2020-SOX-00012, slip op. at 2 (ARB Aug. 24, 2021).

29 C.F.R. § 24.109(b)(2).

Id.

42 U.S.C. § 300j-9(i)(2)(A).

42 U.S.C. § 9610(b); 29 C.F.R. § 24.103(d).

Schlagel v. Dow Corning Corp., ARB No. 2002-0092, ALJ No. 2001-CER-00001, slip

op. at 8 (ARB Apr. 30, 2004).

29 C.F.R. § 18.70(c).

reasonable inferences in the complainant’s favor.14 Such motions should be granted

cautiously.15 The Board uses the “fair notice” requirement.16 Under this standard,

A sufficient statement of the claims need only provide (1) some facts

about the protected activity, showing some “relatedness” to the laws and

regulations of one of the statutes in our jurisdiction, (2) some facts about

the adverse action, (3) a general assertion of causation, and (4) a

description of the relief that is sought.17

The Board has also held that a complaint “should be able to state a claim

upon which relief can be granted without unwarranted presumptions and pass

muster when subjected to the scrutiny applied to any other complaint.”18

1. Conversion to a Motion for Summary Judgment

On appeal, Complainant contends the ALJ improperly converted

Respondents’ motion to dismiss into a motion for summary judgment without giving

the parties a chance to engage in discovery. Complainant further contends the ALJ

erred in considering evidence outside of the complaint without converting

Respondents’ motion to dismiss to a motion for summary judgment and permitting

discovery. Complainant asserts that he was not given the opportunity to gather and

submit evidence that could have been relevant despite requesting the chance to

conduct discovery. Complainant further contends the evidence Respondents

submitted was not of the undisputable, legally operative kind that courts will

sometimes allow as integral to a complaint.

In Evans v. U.S. Environmental Protection Agency, the Board discussed the

difference between a motion to dismiss and a motion for summary judgment.19 The

Board opined that a motion to dismiss is based on a facial challenge at the initial

stages of litigation, which “focuses solely on the allegations in the complaint, its

amendments, and the legal arguments . . . not whether evidence exists to support

such allegations.”20 The Board further opined that “[g]enerally, in reviewing

Gallas v. The Med. Ctr. Of Aurora, ARB Nos. 2015-0076, 2016-0012, ALJ Nos. 2015ACA-00005, 2015-SOX-00013, slip op. at 2 (ARB Apr. 28, 2017).

Boyd, ARB No. 2010-0082, slip op. at 3.

Evans v. U.S. EPA, ARB No. 2008-0059, ALJ No 2008-CAA-00003, slip op. at 11

(ARB July 31, 2012).

Id.

Moody v. Nat’l W. Life Ins. Co., ARB No. 2020-0014, ALJ No. 2019-SOX-00031, slip

op. at 11 (ARB Mar. 31, 2021).

Evans, ARB No. 2008-0059, slip op. at 10-11.

Id.

whether to dismiss a complaint for failure to state a claim, the ALJ should not

consider new evidence submitted by the moving party. . .unless he or she converts

the motion to one for summary decision and allows the non-movant an opportunity

to respond.”21

However, the Third Circuit, in whose jurisdiction this case arises, has held

that “a court may consider an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on

the document.”22 Otherwise, “a plaintiff with a legally deficient claim could survive

a motion to dismiss simply by failing to attach a dispositive document on which it

relied.”23

We agree with the ALJ in concluding that this email is not an adverse action

and does not support liability for unlawful retaliation. The March 8, 2021 email is

central to Complainant’s claim and he expressly relies on it when asserting it

constitutes an adverse employment action. Thus, we conclude that the ALJ properly

considered the March 8, 2021 email, and was not required to convert Respondents’

motion to dismiss into a motion for summary judgment.

2. March 8, 2021 email

On appeal, Complainant contends the ALJ erred in determining that the

March 8, 2021 email did not constitute an adverse employment action. Specifically,

he contends his entitlement to all reasonable inferences means the email must be

taken as a threat. He further contends the ALJ should have considered the context

of the email as it recapitulated a threat from Respondents’ prior communications to

report him to professional discipline boards and law enforcement. He further alleges

the declaration Respondents wanted him to sign contained an illegal gag provision

and the communications were an attempt to steamroll, intimidate, and silence him.

The March 8, 2021 email from Respondents’ counsel, Sarah Bouchard, states,

“Good morning and I hope you had a good weekend. I am following up on the

Declaration as well as Mr. Complainant’ position on a transition plan and payment.

Is there a good time to discuss today?”24

Id.

Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.

1993).

Id.

Resp. Motion to Dismiss, EX J.

There is a significant disparity between Complainant’s argument that the

email was threatening and what the email states.25 The Third Circuit has held that

“[w]here there is a disparity between a written instrument annexed to a pleading

and an allegation in the pleading based thereon, the written instrument will

control.”26 Thus, here, the email controls.

We agree with the ALJ that the email contains no threat of action by

Respondents or request that Complainant refrain from any action. Rather, as the

ALJ opined, the email is an innocuous, professional follow-up request to continue

settlement conversations, and the language is not hostile. In addition, we also agree

with the ALJ that the email represents a discrete act.

Further, even considering the email in the context of Respondents’ prior

emails, we find that the email does not amount to an adverse action. While prior

communications addressed the possibility of reporting Complainant to disciplinary

boards, Respondents ultimately took no action. In Remp v. Alcon Labs., Inc., the

Third Circuit analyzed a discriminatory retaliation claim under Title VII regarding

a situation in which an employer threatened to file a lawsuit against Remp and

report her to the department responsible for internal discipline, but ultimately did

not. The Third Circuit concluded Remp failed to show the “hollow threats amounted

to ‘more than . . . trivial inconvenience[s],’ or could have ‘dissuaded a reasonable

worker from making or supporting a charge of discrimination.’”27 Similarly, here,

Respondents’ prior emails amount to a “hollow threat” and do not constitute an

adverse action.

Thus, the email does not amount to an adverse action either on its face or in

the context of Respondents’ prior communications. Therefore, we affirm the ALJ’s

determination that the March 8, 2021 email was not an adverse action, and

Complainant failed to state a claim upon which relief could be granted.

3. April 2021 Media Statements

On appeal, Complainant contends the ALJ improperly determined

Respondents’ statement to the media was not retaliatory. Specifically, Complainant

contends whether he violated the policy is a question of fact, and that the ALJ

improperly drew inferences in Respondents’ favor. Complainant asserts that he was

entitled to the inference that the statement was defamatory. He argues defamatory

statements are viewed from the average person, who would likely assume sexual or

discriminatory harassment. He further asserts that Respondents later told three

U.S. district court judges he was fired for other reasons. In addition, he contends

Complainant’s Brief (Comp. Br.) at 20.

ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 n.8 (3d Cir. 1994).

Remp v. Alcon Labs., Inc., 701 Fed. Appx. 103, 108 (3d Cir. 2017).

the ALJ made a sub silentio holding on causation by determining his public

statements causally necessitated a response. He further contends the ALJ’s order

assumes his prior activities could not have contributed to Respondents’ defamation.

He contends the implications of the ALJ’s order could allow for employers to make

any public response regardless of its verity.

Respondents’ statements to the media include:

Mr. Complainant was separated from the company following an

investigation for violating company policies, including our harassment

prevention policy, among others.

Despite access to multiple ethics hotlines and numerous opportunities

to raise concerns directly to incoming CEO Mark Rayfield and other

senior leaders, Mr. Complainant did not do so.28

We conclude that the ALJ erroneously found that the Respondents’

statements were proper and did not constitute an adverse action. Of course, a

finding of an adverse action alone has no legal import unless that adverse action

was motivated by an improper basis protected by the statute; hence our discussion

also touches on this latter issue.

The ALJ notes, and we do not disagree, that the Respondents had a right to

respond to the media allegations, as referenced in footnotes 13 and 14 of the Order,

generated by Complainant.29 However, that right, of course, cannot be a shield

behind which the Respondents, or any employer, can state whatever it decides is

appropriate, whether as a matter of substance or a media or litigation strategy. To

find otherwise would be to empower an employer to create, carte blanch, very

significant problems for a whistleblower, which could improperly deter

whistleblowers from pursuing their rights.30 Hence, a balance must be struck.

Order at 13.

Id.

Although it has not been held under the SDWA or CERCLA statutes, it has been

commonly held under other whistleblower statutes that “[u]nder the ‘detrimental effect’

test, an employment action is adverse if it is reasonably likely to deter employees from

making protected disclosures.” Allen v. Stewart Enterprises, Inc., ARB No. 2006-0081, ALJ

Nos. 2004-SOX-00060, -00061, -00062, slip op. at 15 (ARB July 27, 2006) (citing Ray v.

Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000) (An adverse action is one “reasonably likely

to deter employees from engaging in protected activity”)). See Burlington N. Ry. Co. v.

White, 548 U.S. 53, 68 (2006). The Court noted,

The anti-retaliation provision seeks to prevent employer interference with

‘unfettered access’ to Title VII’s remedial mechanisms. Robinson v. Shell Oil

Co., 519 U.S. 337, 346. It does so by prohibiting employer actions that are

In this case, the Respondent issued to the media a statement that “Mr.

Complainant was separated from the company following an investigation for

violating company policies, including our harassment prevention policy, among

others.”31 The statement also notes a failure to use the ethics hotlines and other

opportunities to raise concerns with the CEO and other senior leaders.32 The ALJ

noted the company’s right to respond to the media allegations made by the

Complainant and found that the response, based on the record, would not deter

employees from proceeding with a whistleblower complaint and was therefore not

an adverse action under the law: “Any assertion that the statements would deter a

reasonable employee from engaging in protected activity is pure and patent

guesswork, not a reasonable inference.”33

We simply, and strongly, disagree. In today’s workplace, the word

“harassment” is a vessel into which many meanings can be poured, but surely it is

reasonable to infer that it could be read to imply sexual, racial, or otherwise

discriminatory harassment. It is also reasonable to infer that possible future

employers considering the Complainant for employment might find this media

response through a simple Internet search, which is routinely done in screening

candidates, and that such a search would deter an employer from hiring the

candidate tarred with this description—particularly in a world in which many

candidates have respectable credentials and employers are looking for “red flags” to

shrink the candidate pool. While we think this is a matter of being cognizant of the

realities of today’s workplace,34 it is certainly a reasonable inference which we must

likely to deter victims of discrimination from complaining to the Equal

Employment Opportunity Commission, the courts, and their employers.

See also id. at 77 (“Under the majority’s test, however, employer conduct that causes

harm to an employee is permitted so long as the employer conduct is not so severe as

to dissuade a reasonable employee from making or supporting a charge of

discrimination.”) (Alito, J., concurring opinion); Powers v. Paper, Allied-Industrial,

Chemical & Energy Workers Int’l Union (PACE), ARB No. 2004-0111, ALJ No. 2004AIR-00019, slip. op at 13 n.24 (ARB Aug. 31, 2007) (applying the Burlington

Northern Ry. Co. standard to cases arising under the Wendell H. Ford Aviation

Investment and Reform Act for the 21st Century, Sarbanes-Oxley Act, and

Environmental Acts). We apply this test here.

Order at 13.

Id.

Some things are plainly obvious. See Burlington N. Ry. Co., 548 U.S. at 73. (“[I]t

needs no argument to show that the fear of economic retaliation might often induce

aggrieved employees to quietly accept substandard conditions”) (quoting Mitchell v. Robert

De Mario Jewelry, Inc., 361 U.S. 288, 292 (1960)).

make in favor of the Complainant.35 In any event, Complainant should have been

given the opportunity to submit testimony, depositions, or other evidence to

establish that the media statements could have an adverse impact on his career and

his ability to find future work.

Of course, a finding that Respondent’s conduct constituted adverse action, as

noted above, is only one element of Complainant’s claim. He must also show that

the adverse action was motivated by conduct protected by the statute.36 We

recognize the ALJ’s concerns about timeliness and that Complainant’s arguments

with regard to the events that led to the press release on the part of the

Respondents might be an “end run” around the statute of limitations. However, we

also recognize that if in fact Complainant could show that the contents of the press

release were intentionally shaped in such a way to punish him for his claimed

protected conduct, that a plausible claim may arise. In this regard, we note that the

Respondent is a large company with an undoubtedly sophisticated HR staff which

would likely have understood the connotations of the word “harassment’ in today’s

working environment and how that could impact an employee’s job candidacy when

posted on the Internet. Of course, had Complainant in fact been guilty of

harassment, as either normally defined or is legally defined, the company would

have an explanation for its use of that term. However, the only mention on this

point is in Respondents’ brief, which notes:

See Howze v. Virginia Polytechnic, 901 F.Supp. 1091, 1097-98 (1995) (Finding that a

negative report in a professor’s personnel file was an actionable adverse employment action

which includes “actions that would adversely affect one’s professional reputation or ability

to gain future employment . . ..” The court found that this allegation was therefore

sufficient for the plaintiff to survive the defendants’ motion to dismiss.). While this case

was decided prior to Burlington Northern Ry. Co., a leading employment treatise notes, in

citing this case and others, that “[b]ased upon the standard articulated by the Supreme

Court in Burlington Northern Ry. Co., these actions likely will continue to be deemed

adverse actions sufficient to support a retaliation claim under [Title VII].” See Linderman

and Grossman, 4th edition, Volume 1, p. 1028 (2007). Finally, it seems reasonably to infer

that allegations of “harassment,” in the context of today’s workplace—and the Supreme

Court cautioned in Burlington Northern Ry. Co. that “context” was important to consider—

are not the type of trivial complaints or “ordinary tribulations” of which the Court was

concerned in cautioning against an overly expansive definition of adverse impact. See

Burlington Northern Ry. Co., 548 U.S. at 68. In any event, we are not reaching final

conclusions with regard to the context of this case but rather remanding the case back to

the ALJ for further examination.

See Wright v. R.R. Comm’n of Texas, ARB No. 2019-0011, ALJ No. 2015-SDW-00001,

slip op. at 3 (ARB May 22, 2019) (To prevail on a whistleblower complaint, a complainant

must establish by a preponderance of the evidence “that the protected activity caused or

was a motivating factor in the adverse action alleged in the complaint.”); Onysko v. State of

Utah, Dept. of Envtl. Quality, ARB No. 2011-0023, ALJ No. 2009-SDW-00004, slip op. at 10

(ARB Jan. 23, 2013) (“A ‘motivating factor’ is ‘conduct [that is] . . . a ‘substantial factor’ in

causing an adverse action.”).

In October 2020, Saint-Gobain investigated allegations that Mr.

Complainant violated Saint-Gobain’s Code of Conduct and blatantly and

repeatedly acted in an insubordinate manner to his female manager.

Compl. ¶¶ 128-32. Following the conclusion of that investigation, SaintGobain determined that Mr. Complainant violated a “‘harassment

prevention policy, among others.’” Objections at 12. As a result, the

Company informed him on October 19, 2020, that it would terminate his

employment effective November 1, 2020.37

From this is it impossible to say whether the company’s use of the word

“harassment” in the press release was based on some odd interpretation of the

concept of insubordination38 or a separate incident. In any event, Complainant

should be allowed to pursue discovery to determine why the press release was

shaped in the manner it was and in the motivations behind it. Those actions could

very well be based on what actually happened or, on the other hand, been driven to

shape a certain set of circumstances to paint Complainant in the worst possible

light in light of his alleged protected conduct. We of course make no judgment as to

those issues.

We therefore remand the case to the ALJ for proceedings consistent with the

above to reexamine the impact of the discussed language in the press release, and

its possible motivation. We do note that there is no issue with regard to timeliness

with regard to the press release.

CONCLUSION

Accordingly, we AFFIRM the ALJ’s Order in part, VACATE in part, and

REMAND the case for further proceedings consistent with this opinion.

SO ORDERED.

Resp. Br. at 2.

It is hard to envision circumstances where “insubordination” could encapsulate

“harassment” except in the most extreme circumstances where an employee was screaming

at a superior, throwing objects, following the superior to his or her car in a menacing way,

etc. The record reflects no indication of such conduct.

Judge Thomas H. Burrell, Concurring in Part and Dissenting in Part:

This case arises under the employee protection provisions of the Safe

Drinking Water Act (“SDWA”), 42 U.S.C. § 300j-9(i), and the Comprehensive

Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §

9610, as well as the Department’s implementing regulations at 29 C.F.R. Part 24.

1. The ALJ Did Not Err in Failing to Convert the Motion to Dismiss

Saint-Gobain moved to dismiss Gross’s complaint pursuant to the Rules of

Practice and Procedure for Administrative Hearings before the OALJ.39 I concur

with the majority that the ALJ did not err in failing to convert the motion to

dismiss into a motion for summary judgment because of the inclusion of exhibits

cited in the motion.40

2. Complainant Failed to Plead a Claim upon Which Relief May Be Granted

To prevail on a claim under SDWA or CERCLA, Complainant must prove, by

a preponderance of the evidence, that (1) he engaged in protected activity, (2) he

suffered an adverse employment action, and (3) the protected activity caused or was

a motivating factor in the adverse employment action.41 At the motion to dismiss

stage, a complainant is not required to show a prima facie case of retaliation

covering each element necessary to their claim.42 Pleading rules “do not

countenance dismissal of a complaint for imperfect statement of the legal theory

supporting the claim asserted.”43 Nonetheless, “‘naked assertions’ of wrongdoing”

are generally insufficient to state a claim for relief.44 A complainant’s “[f]actual

allegations must be enough to raise a right to relief above the speculative level . . .

on the assumption that all the allegations in the complaint are true.”45

The SDWA prohibits an employer from discharging or otherwise

discriminating against an employee “with respect to his compensation, terms,

conditions, or privileges of employment” based on the employee’s protected

activity.46 CERCLA provides that no employer “shall fire or in any other way

29 C.F.R. § 18.70(c).

Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.

1993); Wright v. Associated Ins. Cos., Inc., 29 F.3d 1244, 1248 (7th Cir.1994).

29 C.F.R. § 24.109(b)(2).

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002).

Johnson v. City of Shelby, Miss., 574 U.S. 10, 10 (2014) (per curiam).

Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation omitted).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

42 U.S.C. § 300j-9(i)(1).

discriminate against, or cause to be fired or discriminated against, any employee”

based on the employee’s protected activity.47 The implementing regulations for

these environmental regulations further provide that no employer “may discharge

or otherwise retaliate against any employee with respect to the employee’s

compensation, terms, conditions, or privileges of employment because the employee,

or any person acting pursuant to the employee’s request, engaged in any of the

activities specified in this section. . . . It is a violation for any employer to

intimidate, threaten, restrain, coerce, blacklist, discharge, discipline, or in any other

manner retaliate against any employee.”48

The ARB has interpreted these provisions broadly. To state a claim for relief

under SDWA’s or CERCLA’s anti-retaliation provision, a successful complainant

must show an employer’s action is “more than trivial,” is “materially adverse” so as

to “dissuad[e] a reasonable worker” from engaging in protected activity.49 Obvious

sources include termination, demotion, lost vacation pay, as well as lesser forms of

discrimination and intimidation rising above the level of triviality such that the

employer’s action would deter a reasonable employee from engaging in protected

activity.50

The ALJ held that Complainant had failed to make out a claim upon which

relief may be granted because the March 8 e-mail and the April 2021 press release

were not adverse actions as a matter of law.51

A. Respondent’s March 8 E-mail Was Not an Adverse Action

On appeal, Complainant asserts that the ALJ erred in concluding that the

March 8 e-mail was not an adverse action. The e-mail provides:

Good morning and I hope you had a good weekend. I am

following up on the Declaration as well as Mr. Gross’ position on

42 U.S.C. § 9610(a).

29 C.F.R. §§ 24.102(a)-(b).

Zavaleta v. Alaska Airlines, Inc., ARB No. 2015-0080, ALJ No. 2015-AIR-00016, slip

op. at 11 (ARB May 8, 2017). The question is whether the action(s) is “materially adverse,”

or “that is, ‘harmful to the point that they could well dissuade a reasonable worker from

making or supporting a charge of discrimination.’” Powers v. Paper, Allied-Indus., Chem. &

Energy Workers Int’l Union, ARB No. 2004-0111, ALJ No. 2004-AIR-00019, slip op. at 13

(ARB Aug. 31, 2007) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57

(2006)).

Burlington Northern, 548 U.S. at 68.

D. & O. at 10-11, 13.

a transition plan and payment. Is there a good time to discuss

today?52

Complainant characterizes the e-mail as threatening and malicious.53

Complainant claims that the March 8 e-mail attaches to Respondent’s ongoing

request that Complainant sign a declaration concerning Complainant’s employment

with Saint-Gobain and post-termination conduct regarding his company laptop and

cell phone.54

The ALJ concluded that Complainant’s claim that the March 8 e-mail was an

adverse action was meritless.55 Both the majority and I agree that the ALJ did not

err. The March 8 e-mail is part of everyday discussion between counsel involved in

adversarial litigation. It cannot sustain a claim of retaliation.

B. Respondent’s April 2021 Media Release Was Not an Adverse Action

The majority and I differ as to the ALJ’s evaluation of the April 2021 media

release. Sometime in or about April 2021, Gross submitted his whistleblower

retaliation complaint to a news outlet to generate attention to his claim. In

response, the Respondent issued its own press release in April 2021, which includes

the following statements:

Mr. Gross was separated from the company following an

investigation for violating company policies, including our

harassment prevention policy, among others.

Despite access to multiple ethics hotlines and numerous

opportunities to raise concerns directly to incoming CEO Mark

Rayfield and other senior leaders, Mr. Gross did not do so.56

Complainant characterizes Saint-Gobain’s statement as defamatory.

Complainant continues: “Saint-Gobain misleadingly suggests that Mr. Gross failed

to avail himself of an “ethics hotline,” when it knows that the purported “hotline”

number goes directly to the Head of Business Compliance[,…] who orchestrated the

firing of Mr. Gross on October 19, 2020.”57 Complainant continues: “the public

would generally understand this media statement to mean that Mr. Gross had

Id. at 9-10.

Id. at 9.

Id. at 7, 10.

Id. at 9.

Id. at 13.

Comp. Br. at 8.

committed an ethical violation incompatible with his employment duties, and that

most readers would have taken it to mean that he had violated a policy against

sexual harassment.”58

I agree with the ALJ that Gross has not pled any action on the part of SaintGobain that materially affects his terms, conditions, or privileges or employment.

His complaint does not identify threatening or retaliatory conduct rising to the level

of material required by Burlington Northern and ARB precedent. “Materially

adverse actions usually involve ‘a significant change in employment status, such as

hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in benefits.’”59 To be

material, the consequences cannot consist of “petty slights and minor

annoyances.”60 Not every remark that makes the Complainant unhappy is an

adverse action.61

Complainant’s theory of adverse action stacks inference upon inference; it

requires the factfinder to interpret the employer’s media statements as implicitly

characterizing Complainant as having engaged in sexual harassment which then

could result in an unfavorable outcome in the unknown future by an unknown

employer. As the ALJ correctly concluded, it is full of “wild speculation.” The ALJ

stated as follows:

Complainant argues Saint-Gobain’s statements to the media

were designed to harm his reputation because “[t]he average

reader will think that harassment means sexual harassment.” . ..

This is nothing more than wild speculation. The statement makes

no mention of sexual harassment or any other criminal conduct.

Again, Complainant is entitled to reasonable inferences, not

acceptance of his base conjecture. Complainant contends these

statements falsely imply that he “did something he should not

have done or failed to do something he should have.” . . . Again,

though, the statements make no mention of misconduct. They

state in a reasonable and non-hostile manner the circumstances

surrounding Complainant’s termination. Any assertion that these

statements would deter a reasonable employee from engaging in

protected activity is pure and patent guesswork, not a

Comp. Br. at 13.

Spector v. District of Columbia, No. 1:17-cv-1884, 2020 WL 977983, at *11 (D.D.C.

Feb. 28, 2020) (quoting Burlington Indus. Inc., v. Ellerth, 524 U.S. 742, 761 (1998)).

Taylor v. Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009) (internal quotations and

citations omitted).

Xuan Huynh v. U.S. Dep’t of Transp., 794 F.3d 952, 959 (8th Cir. 2015).

reasonable inference.62

The ALJ continued:

In short, bare assertions and conclusory allegations that

Complainant suffered an adverse action are insufficient.

Complainant must present plausible grounds to infer that these

statements were adverse. He has not done so. Instead, this

allegation represents nothing more than a desperate attempt to

rescue an untimely filing.63

The ALJ observed that Complainant is the party who first publicized the

complaint consisting of allegations of retaliation and wrongful conduct to the media,

long after the statute of limitations expired. Respondent responded providing its

version of his separation from the company.64

Respectfully, I dissent from the majority’s position that the April 2021 media

release requires remand and discovery. I would affirm the ALJ and conclude that

the press release is of a similar nature as the March 8 e-mail. Complainant’s claim

of an adverse action fails under the SDWA or CERCLA, and therefore he has not

pled a claim upon which relief may be granted.65

D. & O. at 13.

Id. at 14.

Trant v. Oklahoma, No. 10–555–C, 2012 WL 6690358 (W.D. Okla. Dec. 21, 2012)

(“Responding to media inquiries prompted by the actions of Plaintiff’s own attorney is not

retaliatory or malicious behavior, despite the assertions of Plaintiff.”), aff’d in part, rev’d in

part, 754 F.3d 1158 (10th Cir. 2014).

Cf. Staggers v. Becerra, No. ELH-21-0231, 2021 WL 5989212 (D. Md Dec. 17, 2021)

(collecting cases where tribunal found pleadings insufficient to constitute an adverse action

under Burlington Northern). The majority notes the need for discovery to probe what

motivated, or the circumstances behind, the media statement, but this likely goes to the

motivating factor or causation element. Such discovery would not change the evaluation of

the April 2021 text, which is the alleged adverse action.

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.