Administrative Review Board

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

ANTHONY HO, JR.,

COMPLAINANT,

v.

ARB CASE NO.

2019-0051

ALJ CASE NO.

2017-CAA-00001

DATE: January 27, 2021

STATE OF HAWAII

DEPARTMENT OF ACCOUNTING

AND GENERAL SERVICES,

RESPONDENT.

Appearances:

For the Complainant:

Anthony P. X. Bothwell, Esq.; Law Offices of A. P. X. Bothwell; San

Francisco, California

For the Respondent:

Claire W.S. Chinn, Esq.; Department of the Attorney General, State of

Hawaii; Honolulu, Hawaii

Before: James D. McGinley, Chief Administrative Appeals Judge, Thomas

H. Burrell and Randel K. Johnson, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. This case arises under the whistleblower provisions of the Clean

Air Act (CAA) and its implementing regulations.1 Anthony Ho, Jr. (Complainant)

filed a complaint with the Occupational Safety and Health Administration alleging

that his former employer, State of Hawaii Department of Accounting and General

Services (Respondent), retaliated against him after he reported asbestos safety

1

42 U.S.C. § 7622 (1977); 29 C.F.R. Part 24 (2020).

2

concerns at two schools. The presiding Department of Labor Administrative Law

Judge (ALJ) dismissed Complainant’s claim. We affirm.

BACKGROUND

Complainant worked as a Building Maintenance Worker I for Respondent. 2

The Naalehu Elementary School discovered asbestos in November, 2004.3 Removal

and abatement procedures were completed on or around May 21, 2007.4 On May 23,

2007, Complainant reported that he was fixing a storage roof and may have been

exposed to airborne asbestos.5 Between July 30, 2008, and January 28, 2010, the

parties communicated several times regarding Complainant’s request for a baseline

test from his alleged asbestos exposure at Naalehu.6 Ultimately, Respondent sent a

written request directly to Complainant’s personal doctor, requesting that he

provide Complainant with a baseline asbestos medical examination.7

On August 20, 2008, Complainant received a phone call that there was

asbestos removal and abatement taking place and that safety regulations were not

being followed at Keeau School.8 Complainant went to Keeau and observed

abatement and removal company employees working in the walkways, that there

were no signs, safety barriers, or safety monitors present, and that children were

able to walk freely in the abatement area.9 Complainant took pictures of what he

felt were gross violations and negligence.10 The Keeau principal observed

Complainant taking pictures, approached him, and an altercation occurred between

the two individuals.11 Respondent investigated and interviewed Complainant

regarding the Keaau incident. Respondent determined that Complainant did not

identify himself as an employee when he went to the school. Respondent suspended

2

D. & O. at 4.

3

Id. at 11; Respondent’s Exhibit (RX) B at 858, 871.

4

D. & O. at 11; RX B at 861.

5

D. & O. at 11; RX B at 899.

6

D. & O. at 12-13.

7

Id. at 12; RX B at 920-21.

8

D. & O. at 14; Hearing Transcript (Tr.) at 76-78, 126-27.

9

D. & O. at 14; Tr. at 78, 127-28.

10

D. & O. at 14; Tr. at 80-81, 132; Complainant’s Exhibit (CX) 8.

11

D. & O. at 14; Tr. at 82-84; 659.

3

Complainant for ten days for his threatening behavior at Keaau, and required him

to attend anger management training.12

On May 30, 2008, Complainant reported that a co-worker observed a former

co-worker viewing child pornography at a worksite.13 Respondent investigated

Complainant’s report, but found no evidence supporting Complainant’s claim.14 On

October 25, 2010, Respondent received a complaint from the Department of

Education Hawaii District (DOE) that Complainant sent an anonymous fax to

thirty-four public schools on October 18 and 19, 2010.15 The fax alleged a cover-up of

child pornography by Respondent and the DOE at the Hilo base yard.16 On

November 23, 2010, Complainant faxed a letter with seven attachments to the DOE

and Respondent’s Personnel Offices in response to the administrative investigation.

Complainant’s fax stated “if you don’t stop and you continue to blame me . . . I will

start spreading this out to the community today . . . if no one calls me back by 12

noon today Nov 23 2010 I will start spreading this out after 12 noon today [sic

throughout].”17 Respondent investigated the incident and determined that

Complainant sent faxes to thirty-seven schools. The faxes resulted in significant

and widespread disruption to the DOE’s Hawaii District operations. Respondent

also determined that Complainant sent the November 23 fax in an effort to retaliate

against the Respondent because the Respondent had opened an investigation into

the October faxes, and that Complainant failed to comply with the repeated

directive to stop rehashing these complaints since they were previously investigated

and dismissed.18

On April 25, 2011, Respondent held a pre-discharge meeting during which it

gave Complainant the opportunity to offer facts or arguments as to why his

discharge would not be appropriate.19 On May 12, 2011, Respondent terminated

Complainant’s employment because he sent the faxes, which were disruptive,

intimidating, and confrontational, to thirty-seven schools, he was insubordinate for

12

D. & O. at 15; RX B at 979; Tr. at 99-100, 128-129; CX 2-13, 2-14, 4-4.

13

D. & O. at 4.

14

Id. at 4; RX B at 1171-72.

15

D. & O. at 5; RX A at 719-720.

16

D. & O. at 6; RX A at 113.

17

D. & O. at 7; RX A at 80, 101, 231; Tr. at 162-65.

18

D. & O. at 8-9.

19

Id. at 9.

4

not complying with directives and warnings to stop rehashing complaints and issues

that were previously investigated, and he did not follow the chain of command.20

Complainant filed a complaint with the Occupational Safety and Health

Administration (OSHA) which was dismissed on December 13, 2016. Complainant

requested a hearing before the Department of Labor (DOL) Office of the

Administrative Law Judges (OALJ) on January 30, 2017.21

On April 15, 2019, the ALJ assigned to the case issued a Decision and Order

dismissing Complainant’s complaint (D. & O.). On April 25, 2019, the

Administrative Review Board (ARB or Board) received Complainant’s Petition for

Review. For the reasons discussed below, we affirm the ALJ’s D. & O.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the Administrative Review Board

(ARB or Board) the authority to issue agency decisions in review or on appeal of

matters arising under the CAA.22 The Board reviews an ALJ’s procedural rulings

under an abuse of discretion standard.23

Conversely, the ARB reviews questions of law presented on appeal de novo,

but is bound by the ALJ’s factual determinations as long as they are supported by

substantial evidence.24 Substantial evidence means “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”25

20

Id.; RX A at 799-805.

21

D. & O. at 2.

29 C.F.R. § 24.110; see also 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).

22

Vander Boegh v. EnergySolutions, Inc., ARB No. 2015-0062, ALJ No. 2006-ERA00026, slip op. at 7 (ARB Feb. 24, 2017) (citing NCC Electrical Servs., Inc., ARB No. 20130097, ALJ No. 2012-DBA-00006, slip op. at 6 (ARB Sept. 30, 2015)).

23

29 C.F.R. § 24.110(b); Evans v. EPA, ARB No. 2017-0008, ALJ No. 2008-CAA-00003,

slip op. at 8 (ARB Mar. 17, 2020) (citation omitted).

24

25

Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938) (citations omitted).

5

DISCUSSION

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

prove by a preponderance of the evidence that he or she engaged in whistleblower

activity that caused or was a motivating factor in the adverse employment action

taken against the complainant.26 The failure to prove any one of these elements

requires dismissal of a whistleblower complaint.27 If the complainant meets his or

her burden of proof, the respondent may nevertheless avoid liability if it proves by a

preponderance of the evidence that it would have taken the same unfavorable

personnel action in the absence of the complainant’s protected act(s).28

Complainant alleged that he engaged in protected activity when he raised

safety concerns related to asbestos removal at two schools in Hawaii. Nevertheless,

the ALJ found that Complainant failed to prove by a preponderance of the evidence

that his alleged protected activities caused or were a motivating factor in

Respondent’s disciplinary actions and decision to terminate his employment.29 In

finding that Complainant failed to establish that his alleged protected activities

were a motivating factor in the adverse actions taken against him, the ALJ rejected

Complainant’s contentions after comprehensively reviewing the extensive evidence

in the record. In sum, the ALJ was persuaded, based upon the preponderance of the

evidence, that Complainant was terminated because he sent disruptive,

intimidating, and confrontational faxes to thirty-seven schools, he was

insubordinate for not complying with directives and warnings, and he did not follow

the chain of command.30

Complainant argues on appeal that the ALJ erred in determining that his

protected activity was not a motivating factor in Respondent’s adverse actions

against him.31 Complainant also avers that his complaints were objectively

reasonable because he was diagnosed with asbestosis,32 that Respondent knew of

Mugleston-Utley v. EG&G Defense Materials, Inc., ARB No. 2012-0025, ALJ No.

2009-CAA-00009, slip op. at 2 (ARB May 8, 2013).

26

27

Id.

28

Id. (citing 29 C.F.R. § 24.109(b)(2)).

29

D. & O. at 44-48.

30

Id.

31

Complainant’s Brief (Comp. Br.) at 5, 9-10.

32

Id. at 6.

6

his protected activities,33 that Respondent’s explanations for the adverse actions

taken against him were pretextual,34 and that his pornography complaint was

protected by the First Amendment.35

Upon consideration of the parties’ briefs on appeal, and having reviewed the

evidentiary record as a whole, we conclude that the ALJ’s D. & O. to deny the

complaint is supported by substantial evidence. None of Complainant’s arguments

demonstrate that the ALJ abused his discretion36 or committed reversible error.37

We agree with the ALJ’s finding that Complainant did not meet his burden to prove

that his protected activity was a motivating factor in Respondent’s disciplinary

actions and termination of his employment. Accordingly, we summarily AFFIRM

the ALJ’s D. & O. and DENY the complaint.

SO ORDERED.

33

Id. at 7.

34

Id. at 7-9.

35

Id. at 11-14.

Complainant also claims that the ALJ erred in admitting Respondent’s evidence

because Respondent defied the pre-hearing order by exchanging its exhibit binder with

most of the tabs missing. Comp. Br. at 4. The ALJ determined that Complainant did not

raise this objection at the hearing, and complained about the exhibit binder for the first

time in his closing brief. D. & O. at 1, n.3. The Board reviews an ALJ’s procedural ruling

under an abuse of discretion standard. Vander Boegh, ARB No. 2015-0062, slip op. at 7.

After reviewing the transcript, we agree with the ALJ that Complainant did not object to

the exhibit binder at the hearing. Tr. at 689. Therefore, we find that the ALJ did not abuse

his discretion when he admitted the exhibit binder into evidence.

36

We take exception to the ALJ’s factual finding that the November 23 fax did not

reference asbestos or CAA protected conduct. D. & O. at 38. Upon review, the “action line

letter” attachment discusses hazard assessments and alleged asbestos incidents at Naalehu

and Keeau. RX A at 83. Nevertheless, the ALJ’s error is harmless, because these alleged

protected activities are identical to past complaints made by Complainant. The ALJ

ultimately analyzed these alleged protected activities and found that Complainant’s

conduct was either not protected or the protected activity was not a motivating factor in the

adverse actions taken against him. See D. & O. at 35-37, 44-47.

37