U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 20210

In the Matter of:

FREDERICK B. WRIGHT,

COMPLAINANT,

v.

ARB CASE NO. 16-068

ALJ CASE NO. 2015-SDW-001

DATE: January 12, 2018

RAILROAD COMMISSION

OF TEXAS,

RESPONDENT.

BEFORE:

THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:

Frederick B. Wright; pro se; Houston, Texas

For the Respondent:

Julie C. Tower, Esq.; Jackson Lewis, P.C.; Austin, Texas

BEFORE:

Paul M. Igasaki, Chief Administrative Appeals Judge, Joanne Royce,

Administrative Appeals Judge, and Tanya L. Goldman, Administrative Appeals Judge

DECISION AND ORDER OF REMAND

The Complainant, Frederick Wright, filed a retaliation complaint under the employee

protection provisions of the Safe Drinking Water Act (SDWA) and the Federal Water Pollution

Control Act (FWPCA), and their implementing regulations.1 He alleged that the Railroad

Commission of Texas violated the SDWA and FWPCA whistleblower protection provisions

when it retaliated and discriminated against him because he raised concerns about requiring oil

1

42 U.S.C.A. § 300j-9(i) (Thomson Reuters 2011); 33 U.S.C.A. § 1367 (Thomson Reuters

2016); 29 C.F.R. Part 24 (2017).

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and gas operators to comply with rules regulating drilling wells to protect sources of

underground drinking water. Following a hearing, a Department of Labor (DOL) Administrative

Law Judge (ALJ) dismissed Wright’s complaint because he found that Wright did not meet his

burden of showing that any protected activity motivated the termination of his employment. We

VACATE and REMAND for further proceedings.

BACKGROUND

The findings of fact are set forth in the ALJ’s Decision and Order (D. & O.) at pages 6 to

12. They are summarized below in pertinent part.

On October 1, 2007, the Railroad Commission of Texas hired Wright to work as an

engineer specialist in Houston, Texas.2 The Railroad Commission is the certifying agency for

federal permits under sections 401 and 404 of the FWPCA for oil and gas exploration and

production projects and is the state agency responsible for administration and enforcement of a

program under the SDWA for wells associated with oil and gas exploration and production. As

an engineer specialist, Wright’s job included working with the regulated industry to secure

compliance by oil and gas operators with the rules and statutes for which the Railroad

Commission is responsible. Two of Wright’s responsibilities with regard to a particular program

involving variance approvals for building oil and gas wells were to 1) insure that operators were

going to circulate cement to the surface, and 2) determine the number of centralizers that were

going to be used.3

On his first three performance evaluations, Wright received ratings of “meeting the

requirements of the position.”4 At his next evaluation, Wright received the same rating “but was

told that he needed to improve his relations with personnel in the office and industry who

hesitated to approach him because they perceived [that he] was unwilling to work out amenable

solutions at times.”5 At his October 28, 2011 evaluation, the Railroad Commission rated Wright

as average but suggested that he work for better relations with operators to assist them in keeping

wells on production as well as comply with the rules and regulations and view violations from a

“practical standpoint ‘in addition to the straight rules and regulations.’” At the next year’s

evaluation, the Railroad Commission indicated that Wright still needed improvement regarding

relations with operators with the goal of “providing excellent customer service and making the

path to compliance quick and uncomplicated . . . .” Throughout Wright’s employment, operators

2

The citations in this paragraph are to the D. & O. at 6.

3

The parties’ definitions for technical and industrial terms applicable to this case are in the D.

& O. at 3-6.

4

The citations in this paragraph are to the D. & O. at 7-9.

5

This evaluation occurred on October 28, 2010.

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complained that Wright was unable or unwilling to provide practical solutions to drilling

problems.

On December 7, 2012, Wright filed an internal complaint by e-mail to Gil Bujano, the

Railroad Commission’s Oil and Gas Division Director, stating that Charles Teague, District

Director and Wright’s supervisor, removed him from assignments to demean him and to impair

his ability to make operators comply with the rules.6 On April 4, 2013, Wright filed a hostile

work environment complaint with Railroad Commission management reporting that Railroad

Commission’s leadership 1) were willing to ignore their responsibility to require operators to

comply with the rules, 2) were not requiring operators to bring their wells into compliance on

several occasions, and 3) demonstrated a lack of concern for protected fresh water when they

gave an approval to an operator on September 3, 2012, among other things.7

On May 17, 2013, the Railroad Commission conducted a “Performance Counseling”

session regarding Wright.8 During the session, the Railroad Commission told Wright that

operators complained about his relationship with them and reported that he was “difficult to

work with,” exhibited rude behavior, was condescending, and that he called people names.9 In

response to this counseling, Wright appealed and asked for specific incidents supporting the

events discussed in his performance counseling session, to which Bujano replied, indicating that

Wright’s “response demonstrated resistance to supervisor guidance, which if not corrected could

lead to his termination.”10

In early 2013, Kathryn Jaroszewicz, a consultant with one of the operators the Railroad

Commission regulated, submitted a casing exception request to Wright using a form that Teague

had approved in January 2013.11 On May 31, 2013, Wright informed Jaroszewicz that she

needed to use an older form that was attached to his e-mail and asked her to list the correct

number of centralizers. Teague learned that Wright had asked that Jaroszewicz use the old form

and told her that she did not have to. Teague told Jaroszewicz that she could e-mail or call

Wright to inform him how many centralizers were required. Teague e-mailed Wright and told

him that the new form contained enough information to approve Jaroszewicz’s request about

6

D. & O. at 9 (citing CX 33).

7

Id. (citing CX 56-59); Hearing Transcript (Tr.) at 566. Wright has pointed out on appeal that

while this exhibit was not admitted at the hearing, it was cited by the ALJ in his decision. We

address this issue in the Discussion section of this decision.

8

The citations in this paragraph are to the D. & O. at 10.

9

Id. (citing RX-20).

10

Id. (citing RX-20 at 2; RX-24).

11

The citations in this paragraph are to the D. & O. at 11-12; see RX 23.

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circulating cement to the surface.12 Wright e-mailed Teague and told him that the new form did

not provide enough information because “operators made errors in the past that did not comply

with the regulations intended to protect fresh water.”13 Wright “allegedly insisted on using the

January form to protect underground sources of drinking water in furtherance of the Safe

Drinking Water Act.”14 In the e-mail to Teague, Wright stated that it appeared that Teague was

telling him that he could not “request information from the operators regarding whether they

were planning on using sufficient amounts of cement to comply with the rules,” and was

therefore restricting him from doing his job.15

On June 6, 2013, Teague recommended further disciplinary action against Wright based

on this incident concerning Jaroszewicz’s request. Four days later, Jaroszewicz submitted the

correct number of centralizers to Wright, and on that same day, Wright approved her request.

The Railroad Commission fired Wright on June 20, 2013, because he refused “to comply

with Commission directives to work with management and staff and to assist operators in

resolving compliance problems, including the most recent issue of assisting an operator on how

to resolve a casing exception request.”16 Thus, Wright’s request to Jaroszewicz, which according

to the Commission exemplified Wright’s misconduct, ultimately led (or contributed) to his

termination.17

Wright filed this action with the DOL, alleging that the Railroad Commission violated the

SDWA and the FWPCA when it terminated his employment. After an investigation, OSHA

issued findings stating that it found no reason to believe that the Railroad Commission violated

either statute and dismissed Wright’s claim. Wright timely objected to OSHA’s findings and

requested a hearing before an ALJ.18 The ALJ held a hearing in Houston, Texas on December 9

and 10, 2015.

At the hearing, Ramon Fernandez, who had been the Railroad Commission’s Deputy

Director of Field Operations for its Oil and Gas Division, testified that he and Bujano

recommended to Milton Rister, Executive Director, that Wright be fired for unprofessional and

12

See RX-23.

13

Id. at 1.

14

D. & O. at 12 (citing Tr. at 518-19).

15

Id. at 12-13.

16

Id. at 7, 12.

17

Id. at 15, n.10.

18

See 29 C.F.R. § 24.106(a).

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unacceptable behavior with operators and staff. This decision was based, in part, on direct

reports by operators and outside experts who claimed that Wright had been rude, called them

“stupid” and “liars,” and refused to work with them in resolving problems.19 Teague testified

that Wright presented unnecessary obstacles to approval, held up the approval of requests for

minor issues, issued vague requests for information, told individuals to refile applications instead

of advising them of deficiencies over the telephone, and otherwise “made compliance

unnecessarily difficult and unpleasant.”20 Mark Bogan, the Railroad Commission’s Human

Resources Director, testified that Wright was fired for “not following [the Commission’s]

procedures.”21

On May 19, 2016, the ALJ found that Wright failed to meet his burden of showing that

he engaged in protected activity that was a motivating factor in the termination of his

employment and dismissed the complaint.22 Wright appealed the D. & O. to the Board.23 On

appeal, he argues that the Railroad Commission retaliated against and fired him because he

participated in actions to carry out the purposes of the SDWA and FWPCA. He also objects to

many of the ALJ’s evidentiary rulings. Additionally, Wright has moved to strike several of the

Railroad Commission’s exhibits from the record for various reasons. The Railroad Commission

asserts that the ALJ’s findings of fact are supported by substantial evidence.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to decide this matter on appeal from the

ALJ’s decision to the ARB.24 The ARB reviews the ALJ’s factual findings under the substantial

19

D. & O. at 13. Fernandez was retired at the time of the hearing. Peter Fisher and Teague

both directly reported to Fernandez as their supervisor. Id. at 7, n.5.

20

Id. at 15.

21

Id. at 7, 16 (citing Tr. at 752-53).

22

Id. at 1.

23

See 29 C.F.R. § 24.110(a).

24

Secretary’s Order 2-2012 (Delegation of Authority and Assignment of Responsibility to the

Administrative Review Board), 77 Fed. Reg. 69,378 (Nov. 16, 2012); 29 C.F.R. § 1979.110.

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evidence standard.25 The Board reviews the ALJ’s conclusions of law de novo.26 We liberally

construe pro se pleadings.27

DISCUSSION28

The ALJ committed legal error in concluding that Wright did not engage in protected

activity because he did not explicitly reference the SDWA or FWPCA. Based on the record

evidence, we hold that if Wright had a reasonable belief that he was furthering the purposes of

the acts when he e-mailed his supervisor to protest that he was being restricted from performing

his job to protect drinking water and in complaints he made in a hostile work environment

complaint about lack of sufficient oversight of operators to protect fresh water, then he engaged

in protected activity. As the ALJ did not assess whether Wright had a reasonable belief when he

engaged in the activities he alleges were protected, we remand for further fact finding and

consideration.

The purpose of the SDWA “is to assure that water supply systems serving the public

meet minimum national standards for protection of public health.”29 In addition to “establishing

overall minimum drinking water protection standards for the nation,” the statute provides “for

delegation of specific regulation and enforcement to states,” including state primary

enforcement of underground injection processes to protect sources of drinking water.30

Respondent is a state agency with administration and enforcement obligations under the

SDWA.31

The Congressional declaration of goals and policy for the FWPCA provides that “[t]he

objective of this chapter is to restore and maintain the chemical, physical, and biological

25

29 C.F.R. § 24.110(b).

26

5 U.S.C.A. § 557(b).

27

Droog v. Ingersoll-Rand Hussman, ARB No. 11-075, ALJ No. 2011-CER-001, slip op. at 3

(ARB Sept. 13, 2012).

28

Neither party has appealed the ALJ’s decision regarding Respondent’s sovereign immunity

challenge.

29

H.R. REP. 93-1185, 1974 U.S.C.C.A.N. 6454, 1974 WL 11641, 6454 P.L. 93-523; see also

Nat. Res. Def. Council, Inc. v. E.P.A., 812 F.2d 721, 723 (D.C. Cir. 1987).

30

HRI, Inc. v. E.P.A., 198 F.3d 1224, 1232 (10th Cir. 2000), as amended on denial of reh’g and

reh’g en banc (Mar. 30, 2000) (citing 42 U.S.C. § 300h).

31

D. & O. at 6.

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integrity of the Nation’s waters.”32 “Respondent . . . serves as the certifying agency for federal

permits under sections 401 and 404 of the . . . FWPCA, for projects associated with oil and gas

exploration and production activities.”33

The SDWA and the FWPCA contain anti-retaliation provisions prohibiting employers

from discriminating against employees who have participated in activities protected by the

statutes. Specifically, the SDWA prohibits employers from discriminating against an employee

who “assisted or participated . . . in any other action to carry out the purposes of this subchapter,”

and the FWPCA prohibits employers from discriminating against an employee who “filed,

instituted, or caused to be filed or instituted any proceeding under this chapter or has testified or

is about to testify in any proceeding resulting from the administration or enforcement of the

provisions of this chapter.”34

Under the environmental whistleblower statutes, for a

complainant’s acts to be protected, the complainant must show that he reasonably believed that

he raised environmental or public health and safety concerns governed by or in furtherance of the

relevant act(s).35

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.”36 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.”37

In his complaint, Wright alleged that he complained to management about being asked to

approve completion reports and certify that operators had complied with rules protecting fresh

water when the operators had not complied.38 His specific allegations of protected activity are

the following: 1) he requested that a consultant for an operator, Kathryn Jaroszewicz, send him

information using the January form on May 31, 2013, to obtain sufficient information needed to

protect underground sources of drinking water to further the SDWA; 2) he e-mailed Teague on

June 5, 2013, protesting that the Railroad Commission was restricting him from doing his job to

32

33 U.S.C.A. § 1251.

33

D. & O. at 6 (citing Tr. at 211-213; 40 C.F.R. § 147.2201).

34

42 U.S.C.A. 300j-9(i) and 33 U.S.C.A. § 1367.

35

Williams v. Dallas Indep. Sch. Dist., ARB No. 12-024, ALJ No. 2008-TSC-001 (ARB Dec.

28, 2012).

36

29 C.F.R. § 24.109(b)(2).

37

Id.

38

D. & O. at 2.

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protect drinking water in denying his request to ask for the old form; and 3) he alleged numerous

instances of protected activity within a hostile work environment complaint he had submitted

internally on April 4, 2013, about protecting drinking water.39

Regarding the first two numbered allegations above, the ALJ found that Wright had not

engaged in protected activity because there was no evidence that Wright ever referred

specifically to the two statutes in this case, ever notified or accused the Railroad Commission of

any violations of these specific statutes, ever refused to engage in any practice made unlawful by

the statutes, or filed or testified before Congress or in any other proceedings regarding any

provision of the statutes.40 The ALJ noted that “Complainant . . . appears to be a person who

prides himself on attention to detail.” He thus concluded that “[i]f Complainant was concerned

about Respondent’s alleged disregard of the SDWA or FWPCA, then it is only logical that he

would have referred to such in his correspondence with Respondent, which he failed to do.

Accordingly, I find no credible evidence of protected activity.”41

The ALJ’s restrictive view of protected activity is not legally sustainable. A complainant

is not required to explicitly mention the statutes by name or to otherwise allege a violation of the

statute to engage in activity the SDWA protects. The language of the SDWA simply prohibits

employers from discriminating against employees who have “participated in activities to carry

out the purposes” of the act.42 This is broad language, some of the broadest of any of the statutes

the ARB has the responsibility to adjudicate. While the FWPCA’s language is not as broad,

neither the SDWA nor the FWPCA’s language requires a complainant to cite the statute

specifically43 or to report a “violation.”44 And under both statutes, a “proceeding” does not have

39

Id. at 11, 12, 20; RX 23 at 3, 1; CX 56-60 (this exhibit appears to be included also within RX

22, but with comments by Teague; Peter Fisher, the Railroad Commission’s Deputy District Director;

and Fernandez).

40

Id. at 20.

41

Id. at 21.

42

42 U.S.C.A. 300j-9(i).

43

See, e.g., DeKalb Cty. v. U.S. Dep’t of Labor, 812 F.3d 1015, 1021 (11th Cir. 2016). In

DeKalb Cty., the Eleventh Circuit affirmed the ARB’s conclusion that complainants—compliance

experts—engaged in protected activity under the FWPCA where they sought records of restaurant

sewer spills, suspected the County was hiding information about sewer spills, and informed

“coworkers and supervisors that ‘the County could get in trouble’ with the State as a result,” in

addition to confronting a supervisor about ongoing compliance problems. The supervisor “viewed

their questions as ‘insubordination’ and informed them they were being ‘too thorough or scientific.’”

Id. at 1018. The court’s opinion does not reflect that complainants ever referenced the specific

statute at issue in holding that they engaged in protected activity.

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to be a formal proceeding.45 Thus, we vacate the ALJ’s legal conclusion regarding protected

activity because the ALJ did not conduct the proper legal analysis and we conduct our own

analysis based on the facts the ALJ found and under the definitions of protected activity the

statutes express.

The ALJ found that not only was it the Railroad Commission’s responsibility to regulate

certain programs under the FWPCA and the SDWA, it was Wright’s responsibility to work with

the regulated industry, the oil industry, to secure compliance by oil and gas operators with those

same statutes and any other rules for which the Railroad Commission was responsible.

Regardless of whether asking for the older version of the form itself was protected activity,46

Wright’s protest in his e-mails to Teague that he should have been able to ask for the additional

information the older form required, was protected by the statutes. Wright e-mailed Teague and

told him that he asked for the old form because the new form did not provide enough information

and operators had “made errors in the past that did not comply with the regulations intending to

protect fresh water.”47 He wanted the information from the old form that apparently would

unearth any errors and thereby ensure that operators were complying with the rules, rather than

simply trusting that there were none. Wright also told Teague that it appeared to him that

Teague was telling him that he could not request information from the operators about whether

they were planning on using sufficient amounts of cement to comply with the rules. This is

clearly a protest that he is being restricted from doing his job, of which one of his primary duties

was to secure compliance by operators with the statutes at issue in this case. Wright’s e-mail to

44

While there is some ARB caselaw in environmental whistleblower cases that suggests that a

complainant must report a violation of the underlying statute, or a threat to the environment, it is the

language of the statute that prevails. As neither of these statutes requires a violation to be reported

for there to be protected activity, it is not a requirement. Cf. Williams, ARB No. 12-024; Hall v. U.S.

Army Dugway Proving Ground, ARB Nos. 02-108, 03-013; ALJ No. 1997-SDW-005 (ARB Dec. 30,

2004) (“An employee engages in protected activity when he reports actions that he reasonably

believes constitute environmental hazards, irrespective of whether it is ultimately determined that the

employer’s actions violate a particular environmental statute.”) (citation omitted)); Abu-Hjeli v.

Potomac Elec. Power Co., No. 1989-WPC-001, slip op. at 6-7 (Sec’y Sept. 24, 1993).

45

Passaic Valley Sewerage Comm’rs v. U.S. Dep’t of Labor, 992 F.2d 474, 478 (3d Cir. 1993)

(affirming ARB’s interpretation of FWPCA and holding that the “statute’s purpose and legislative

history allow, and even necessitate, extension of the term ‘proceeding’ to intracorporate

complaints.”); DeKalb Cty., 812 F.3d at 1020 (“The Secretary has interpreted ‘proceeding’ to shield

from retaliation employees who make ‘informal’ or ‘internal’ complaints to supervisors and

coworkers, even if those complaints ultimately lack merit.”) (citations omitted)).

46

We cannot determine whether use of the old form versus the new form is protected activity

without additional fact finding. Therefore, on remand, the ALJ should reanalyze whether use of the

old form was protected activity, taking into account the broad purview of protected activity.

47

RX 23 at 1.

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Teague was in furtherance of the SDWA and therefore constitutes protected activity, if Wright

reasonably believed that he was doing so. Wright’s complaint to his supervisor would also

constitute protected activity under the FWPCA, as it was a “proceeding resulting from the

administration or enforcement of the” FWPCA, again, if Wright had the reasonable belief that he

was raising environmental or public health and safety concerns.48

Wright’s hostile work environment complaint (CX 56-60) also contained potential

protected activity, subject to the same caveat regarding a reasonable belief.49 Wright’s

statements within this exhibit fall squarely into the category of protected activity under both the

SDWA and the FWPCA. These statements include, but are not limited to, the following: reports

that the Railroad Commission’s District Director and Assistant Director were willing to ignore

their responsibility to require operators to comply with the rules; they did not require operators to

bring their wells into compliance on several occasions; and they demonstrated a lack of concern

for protected fresh water when they gave an approval to an operator on September 3, 2012.50 For

example, he noted that Fisher “approved the remedial squeezing of the surface casing of a new

well in a fashion that would not properly isolate the fresh water reservoirs”; that Teague’s

approvals to an operator “demonstrated a misunderstanding of well configurations and a lack of

concern for protecting fresh water”; and that Teague “was willing to approve completion reports

without them being in compliance the rules.”51

48

33 U.S.C.A. § 1367.

49

The ALJ apparently did not consider the hostile work environment claim as protected

activity. The record on this is confusing, but there was some discussion during the hearing about the

claim, as an adverse action, being excluded as time barred. While CX 56-60 was not admitted as an

exhibit at the hearing, the ALJ cited it as a part of his fact finding in his decision and order. D. & O.

at 9. The ALJ either believed that he admitted the exhibit or otherwise mistakenly excluded it, as it

contains allegations of protected activity, which cannot be time barred. In any event, on remand, the

ALJ should either admit or make clear that he already admitted this exhibit into the record.

Excluding it would be an abuse of discretion. Shactman v. Helicopters, Inc., ARB No. 11-049, ALJ

No. 2010-AIR-004, slip op. at 3 (ARB Jan. 25, 2013) (noting that ALJ’s evidentiary rulings are

reviewed under an abuse of discretion standard).

50

While the FWPCA’s language is less broad than the SDWA’s regarding protected activity,

Wright’s complaint about management’s failure to require operators to comply with rules intended to

protect underground water sources falls within the FWPCA’s prohibition against discrimination by

employees who file proceedings resulting from the administration or enforcement of the provisions

of the FWPCA. A “proceeding” includes an initial internal or external statement or complaint of an

employee relating to the administration or enforcement of the provisions of the FWPCA. AbdurRahman v. DeKalb Cty., ARB Nos. 08-003, 10-074; ALJ Nos. 2006-WPC-002, 2006-WPC-003; slip

op. at 7-8 (ARB May 18, 2010) (citation omitted), aff’d sub nom, DeKalb Cty. v. U.S. Dep’t of

Labor, 812 F.3d 1015 (11th Cir. 2016).

51

CX 56-60.

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We conclude that Wright’s June 5, 2013 e-mail to Teague (protesting that the Railroad

Commission was restricting him from doing his job to protect drinking water in denying his

request to require the use of the old form) and allegations within Wright’s hostile work

environment complaint are protected activities if Wright reasonably believed he was raising

environmental or public health and safety concerns when he acted in each instance. Wright’s

insistence on using the old form to request information may also constitute protected activity,

which the ALJ will decide on remand. Because determinations about whether Wright had a

reasonable belief in each instance requires fact findings that are not within the Board’s purview

to make, we remand the case to the ALJ to make those findings.52

Further, we make clear that the Board is not making any directives or suggestions to the

ALJ with respect to any other aspect of this case, and leaves it to the ALJ to determine issues of

causation and the affirmative defense on remand.53 Finally, if the ALJ finds that Wright engaged

in protected activity on April 4, May 31, and June 5, 2013, temporal proximity to the June 20

termination and to the June 6 recommendation of further disciplinary action, supports an

inference of causation.54

52

See Lee v. Parker-Hannifin Corp., ARB No. 10-021, ALJ No. 2009-SWD-003, slip op. at 12

(ARB Feb. 29, 2012) (“[B]ecause a determination of the reasonableness of his belief requires

findings of fact that are not within the ARB’s purview to make, we remand this case to the ALJ to

make those findings and for such further proceedings as are warranted.”); Williams, ARB No. 12024, slip op. at 14 (“The fact question nevertheless remains as to whether Williams subjectively

believed he was raising environmental concerns. The ALJ did not resolve this issue, and we cannot

resolve it on the record before us.”).

53

We recognize that the ALJ also analyzed in his opinion whether the alleged protected activity

was a motivating factor in Complainant’s discharge and whether Respondent would have terminated

Complainant’s employment in the absence of any protected activity. A remand is still necessary,

however, because this analysis is incomplete without recognition of the scope and nature of the

protected activity. The ARB has previously noted that “strained relations between regulators and

producers are to be expected.” White v. Osage Tribal Council, ARB No. 96-137, ALJ No. 1995SDW-001, slip op. at 5 (ARB Aug. 8, 1997). We have also cautioned that the line between

insubordination and whistleblowing may be thin or even nonexistent. See, e.g., Kenneway v.

Matlack, Inc., No. 1988-STA-020, at 3 (Sec’y June 15, 1989) (noting that intemperate language,

impulsive behavior, and even alleged insubordination are often associated with protected activity).

We do not prejudge the outcome of this case, but remand to ensure that the analysis separates

protected activity from insubordination.

54

Forrest v. Smart Transp. Servs. Inc., ARB No. 08-111, ALJ No. 2007-STA-009, slip op. at 5,

n.6 (ARB Sept. 21, 2010) (While not necessarily dispositive, “temporal proximity may support an

inference of retaliation.”).

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CONCLUSION

The ALJ found that Wright failed to prove that any protected activity played any role in

the termination of his employment. We VACATE the ALJ’s decision regarding protected

activity. We AFFIRM the ALJ’s finding that there was adverse action. We VACATE the

ALJ’s decision regarding the issues of causation and the affirmative defense because he must

reanalyze these issues in light of the expansive definition of protected activity. Finally, we

REMAND the ALJ’s D. & O. for further consideration. On remand, with regard to exhibits, the

ALJ shall clarify with specificity which exhibits were admitted and which rejected at the hearing

and admit CX 56-60, if not already admitted. All of Wright’s motions to strike exhibits are

denied—the ALJ did not abuse his discretion in admitting the exhibits that Wright now objects

to; further, Wright did not object to their admission at the hearing.

SO ORDERED.

TANYA L. GOLDMAN

Administrative Appeals Judge

PAUL M. IGASAKI

Chief Administrative Appeals Judge

JOANNE ROYCE

Administrative Appeals Judge

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