# U.S. Department of Labor

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URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3Ac71ab9e5f657bddb

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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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PAGE 1

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3Ac71ab9e5f657bddb. Public record. Not legal advice.