U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

MARTA IWASECZKO,

ARB CASE NO. 2022-0059

AND

ALJ CASE NOS. 2018-ACA-00001

2019-ACA-00002

CHIEF ALJ STEPHEN R. HENLEY

THOMAS SPATAFORE,

COMPLAINANTS,

DATE: August 14, 2025

TETON COUNTY WEED & PEST

CONTROL DISTRICT,

RESPONDENT.

Appearances:

For the Complainant:

Richard R. Renner, Esq.; The Noble Law; Raleigh, North Carolina

For the Respondent:

Stephenson D. Emery, Esq.; Williams, Porter, Day & Neville, P.C.;

Casper, Wyoming

Before JOHNSON, Chief Administrative Appeals Judge, and THOMPSON,

and BURRELL, Administrative Appeals Judges; Judge Thompson,

concurring

DECISION AND ORDER

This case arises under the employee protection provisions of the Patient

Protection and Affordable Care Act (ACA) and its implementing regulations. 1

Marta Iwaseczko and Thomas Spatafore (Complainants) filed complaints with the

29 U.S.C. § 218c; 29 C.F.R. Part 1984 (2025).

U.S. Department of Labor’s Occupational Safety and Health Administration

(OSHA) alleging that Teton County Weed & Pest Control District (Respondent or

TCWP) unlawfully retaliated against them for engaging in protected activity under

the ACA. On August 9, 2022, a United States Department of Labor Administrative

Law Judge (ALJ) issued a Decision and Order (D. & O.) dismissing their

complaints. Complainants petitioned the Administrative Review Board (ARB or

Board) for review of the D. & O. After thoroughly examining the parties’ arguments

and the record, we affirm the D. & O.

BACKGROUND

1. Teton County Weed & Pest Control

Respondent provides noxious weed and pest control for Teton County,

Wyoming. 2 Respondent is governed by a board (TCWP Board) with five voluntary

members appointed by county commissioners, 3 and has a supervisor, 4 assistant

supervisors, 5 program coordinators, 6 full-time, part-time, and seasonal employees. 7

Seasonal employees work from approximately May to October and are hired by the

program coordinators. 8 Respondent does not collect information about the ethnicity

of applicants; 9 however, it permits employees to voluntarily self-identify. 10

D. & O. at 8.

The ALJ noted the following board members most frequently referred to in the

evidentiary record: John Becker, Kasey Mateoksy, and Mary Cernicek. Id.

TCWP is required by statute to hire a supervisor to carry out TCWP’s program and

mission. TCWP’s supervisor during the time relevant to this case was Erika Edmiston. Id.

Marta Iwaseczko, a complainant in this matter, served as the “Assistant Supervisor

– Mosquito Program” during the time relevant to this case. Mark Daluge was given the

title, “Assistant Supervisor – Noxious Weed and Invasive Species Program,” after

Iwaseczko departed from TCWP. Prior to this position, Daluge served as an office manager.

Id.

Coleton Rives served as the Invasive Species Program Coordinator. Id. at 9. The ALJ

noted Rives has Native American ancestry. Id. Amy Girard served as the Mosquito

Program Coordinator. Id. The ALJ also noted Girard has Native American ancestry. Id.

Id.

According to the ALJ, Respondent typically does not hold in-person interviews before

hiring people because applicants are “usually all over the place.” Id.

Id.

Respondent created a Policy Handbook as a “reference and general guide for

the efficient and professional performance” for employment at TCWP. 11 The Policy

Handbook discusses various employment policies, standards, and benefits,

including health benefits available to certain employees. 12 For example, the Policy

Handbook states, “[t]he District provides health and dental insurance to full-time

employees who are eligible and who choose to participate after a probationary

period, as determined by the provider.” 13 It also provides that part-time, year-round

employees who work less than 30 hours per week on average, are not provided

medical insurance, and “temporary or seasonal employees . . . will not be eligible for

benefits unless otherwise specified.” 14

10F

11F

12F

13F

Additionally, Respondent offers eligible employees housing to retain enough

seasonal workers. 15 The housing is rent free for the summer season, and seasonal

employees interested in returning for the next summer are permitted to stay in the

housing year-round at a reduced market rate under a “winter” season agreement. 16

However, housing is not guaranteed. 17 In late winter and early spring 2017,

Respondent re-evaluated its housing policies to ensure that the maximum number

of seasonal workers could be housed while a fair and objective policy was in place

for the housing selection. 18 The TCWP Board adopted and approved a new housing

policy on July 25, 2017. 19 According to the policy, preference for one-bedroom units

was given to couples who were married or in a committed relationship. 20 The policy

also set rules for winter housing, and emphasized that the housing is not intended

to be a long-term solution for individuals who plan to live permanently in Teton

County. The plan set limits to the number of consecutive winters a seasonal

employee could qualify for winter housing. 21

14F

15F

16F

17F

18F

19F

20F

Joint Exhibit (JX) 1 at 5.

Id. at 2-4.

D. & O. at 10.

Id.

Id. at 11.

Id. This work arrangement was to make sure that seasonal workers would be

covered by workers’ compensation during the off-season because they were not eligible for

health insurance. Id.

Id.

Id. at 12.

Id. at 11.

Id.

2. Thomas Spatafore’s Employment History and Background

Thomas Spatafore (Spatafore) identifies as a Native American and is one of

the complainants in this matter. 22 Spatafore was hired by Respondent as a seasonal

employee in May 2008. 23 Spatafore was re-hired as a seasonal employee from 2009

through 2017. 24 From 2008 through the mid-season of 2017, Spatafore “always

received overall good performance evaluations, with scores ranging from average

to—most often—excellent and exemplary.” 25 Spatafore lived in TCWP’s employee

housing from 2008 to 2017 and began living in the housing year-round in 2010. 26

21F

22F

23F

24F

25F

In 2012, Spatafore declined to be photographed following a TCWP sponsored

event in Grand Teton Park. 27 Following this event, Spatafore submitted a letter to

Respondent explaining why he did not want to be photographed and was not

interested in full-time positions with Respondent. 28 Specifically, Spatafore stated

that his decision not to participate in the group photograph was not intended to

show disrespect to his employers, colleagues, or the district, but was rather based

on a deeply held value system. 29 The letter did not identify his value system as

grounded in Native American heritage. 30

26F

27F

28F

29F

In 2016, Respondent circulated a form for employees to self-identify by race

and/or ethnicity. 31 On June 24, 2016, Spatafore checked the box identifying himself

as American Indian or Alaska Native and returned the form to Respondent. 32

30F

31F

In March of 2017, Respondent advised Spatafore that he would probably need

to move from his private one-bedroom unit into one of the dorm-style units because

Id. at 12-13.

Id. at 12.

Id.

Id. at 13.

Id. at 13-14. TCWP hosted a group of 80 to 100 people, from TCWP, other agencies,

and private entities, for an event in Grand Teton Park.

Id. at 15.

Id.

Id. Although Spatafore completed the form and checked the box identifying as an

American Indian or Alaska Native, the ALJ determined that it was not until Edmiston

assisted Spatafore with a loan application on August 8, 2017, that she became aware that

Spatafore identifies as Native American. Id. at 17.

it expected to house married couples for the summer season. 33 Around this same

time, Spatafore became concerned about his job description and duties, and

discussed these concerns with Rives. 34 Spatafore wanted to be reclassified as a parttime, year-round employee. 35 Respondent ultimately chose not reclassify Spatafore’s

position. 36 Then, in April of 2017, Respondent formally notified Spatafore that he

needed to move to a dorm unit by May 6 because it decided to give the private onebedroom unit to a couple. 37

32F

33F

34F

35F

36F

From August 2017 through September 2017, Spatafore questioned various

employment practices and presented discrimination concerns to Respondent.

First, on August 28, 2017, Spatafore met with Girard to discuss possible hiring

discrimination practices and other issues, including the 2012 photograph incident,

changes in housing policy, and job posting procedures. 38 Second, on September 1,

2017, Spatafore emailed Edmiston requesting to review a letter in his personnel file

relating to the 2012 photograph incident, which in turn, led to a series of escalating

communications between Spatafore and Edmiston about his discrimination

concerns; Edmiston claimed it was unacceptable for Spatafore to blanket accuse

supervisors of discrimination in hiring practice going back years without a sound

basis. 39 Third, on September 17, 2017, Spatafore emailed the TCWP Board that he

tried to follow protocol in raising concerns about hiring practices to his direct

supervisor only to be told that his concerns were unfounded, unappreciated, and

unacceptable. 40 At the time, Spatafore alleged that all applicants were white and

recommended by existing white employees. 41

37F

38F

39F

40F

On September 26, 2017, the TCWP Board conducted its Monthly Business

Meeting. 42 The minutes from the meeting indicate that the TCWP Board broke for

an executive session to discuss Spatafore’s discriminatory hiring practices claims

41F

Id. at 15.

Id.

Id. at 17.

Id.

Id. at 19. Spatafore provided Girard a list of his grievances which Girard later

forwarded to Edmiston on September 5, 2017. Id. at 20.

See id. at 19-21; see also id. at 22.

Id. at 23.

Id.

Id. at 24.

and his general work performance. 43 The TCWP Board considered asking Spatafore

to vacate employment housing immediately but opted not to. 44 Nevertheless, later

that day, Respondent and Spatafore entered into a winter housing agreement that

covered from October 1, 2017, through April 20, 2018. 45

42F

43F

44F

Spatafore’s last day for the 2017 season was September 27. On that date,

Respondent provided Spatafore a response letter to his allegations as well as his

end-of-season performance evaluation. 46 The scores on Spatafore’s end-of-season

performance evaluation mostly remained in “the adequate to exemplary ranking,”

but some scores for positive attitude dropped to “unacceptable” and for completing

tasks “inadequate.” 47 On the attitude score, Edmiston noted Spatafore’s continued

complaints about housing and job duties even after TCWP had explained its policies

and addressed his complaints. 48 Edmiston also offered Spatafore the opportunity to

have a personal discussion with her and a TCWP Board member about the response

letter. 49 On October 1, 2017, Spatafore requested a meeting to discuss the letter

with Edmiston and a TCWP Board member. 50 On October 2, 2017, Spatafore met

with Edmiston and Mateosky and raised additional discrimination concerns. 51

45F

46F

47F

48F

49F

50F

In October 2017, Spatafore began researching health benefits, retirement

benefits, and potential disparate treatment at TCWP. 52 Spatafore discussed these

discrimination concerns with Iwaseczko expressing his belief that he did not receive

51F

Id. Prior to the Board Meeting, and amid Spatafore’s complaints, Edmiston

contacted a loss control manager from the Local Government Liability Pool, for advice

regarding Spatafore’s accusations and inquired, “if she could just cut him loose at this

point, and asked on how to phrase the reason within TCWP’s conduct policy.” Id. at 21.

Id. at 24.

Id. at 25. The agreement contained a provision stating that the winter housing was

not a right, and that the employee must vacate the housing within 30 days upon notice by

Respondent. Id.

Id.

Id. at 27; see also id. at 22.

Id. at 27. In early November, Edmiston discussed with another employee concerns

the employee had with Spatafore’s state of mind. The employee stated that Spatafore was

recently hostile towards TCWP and under stress because of TCWP’s new housing rules and

because he potentially would have to move into private housing. Id. at 33.

Id. at 27.

Id.

Id. at 29.

Id. at 30.

benefits he was eligible for due to the 2012 photograph incident. 53 Spatafore also

told Iwaseczko he believed there was hiring discrimination at TCWP. 54 On October

8, 2017, Iwaseczko forwarded Spatafore three emails about seasonal employees,

retirement benefits, and job descriptions. After reviewing an email entitled “Peteoh going forward,” Spatafore believed that a Caucasian, part-time, year-round

employee was receiving benefits and given a different worker classification than

him even though this employee worked in a similar capacity. 55 P.B., 56 a full-time

senior staff member, transitioned into a part-time employee for personal reasons

during the 2016 calendar year. During this transition, P.B. requested to keep his

health insurance benefits and Iwaseczko made this request on his behalf.

The “Pete-oh going forward” email indicates that P.B., after converting to part-time

work, was allowed to keep his health benefits until the end of 2016, with a reevaluation in November/December to see what his role would be in 2017. P.B.

returned for the 2017 season as a seasonal employee; when he returned, he was no

longer provided health insurance. 57

52F

53F

54F

55F

56F

On October 18, 2017, the TCWP Board conducted an executive session to

discuss, among other matters, the in-person meeting Edmiston and Mateosky had

with Spatafore. 58 Edmiston informed the TCWP Board that on October 2, 2017,

Respondent received a phone call from the Wyoming Department of Labor stating

that a discrimination complaint would be forthcoming. 59 Mateosky then informed

the TCWP Board that a local attorney called and advised him that one of TCWP’s

employees had approached the attorney for representation in a matter against

Respondent, but the attorney declined to represent the employee. 60 Following this

information, the TCWP Board considered whether to ask Spatafore to vacate the

employee housing over possible liability concerns. The TCWP Board ultimately

recommended that Spatafore be permitted to stay in the winter employee housing. 61

57F

58F

59F

60F

Id.

The Board will refer to the employee as “P.B.” considering that the employee is not

directly involved in Complainants’ claims.

Id. at 30-31.

Id. at 31.

Id.

On October 23, 2017, Spatafore formally responded to his end-of-season

performance evaluation via email. The email provided a point-by-point rebuttal of

the evaluation and a request for scoring explanations. 62

61F

On October 26, 2017, a supervisor from Wyoming’s Employer

Relations/Financial Section emailed Edmiston and Respondent’s bookkeeper about

seasonal employees’ enrollment in the Wyoming Retirement System (WRS). 63

On the following day, the bookkeeper informed Edmiston that the supervisor asked

her about Spatafore’s employment details, including his hours spent snow plowing

and why he was required to reapply each year. 64 Edmiston responded to the

supervisor’s inquiry in early November. 65

62F

63F

64F

On November 1, 2017, Edmiston responded to Spatafore’s formal response to

his end-of-season performance evaluation, stating that his concerns about alleged

discrimination had been thoroughly addressed and there were no negative

consequences for raising those issues. 66 After receiving this response, Spatafore

then emailed Mateosky on November 3, thanking Mateosky for attending the

October 2 meeting, asking for clarification about TCWP’s hiring practices, and

stating that he should have been considered for a promotion in 2016. 67 Spatafore

also noted a negative mark on his 2017 performance evaluation in which he

questioned why he was marked down for complaining about the 2016 promotions. 68

Edmiston replied to Spatafore’s email explaining that his 2017 markdown was not

related to the promotion inquiry, but rather to his lack of a positive attitude and

ongoing complaints, which negatively impacted morale. 69

65F

66F

67F

68F

On November 7, 2017, Spatafore contacted the Teton County Director of

Human Resources (Director), asking about eligibility for Teton County’s health care

plan. 70 The Director replied on November 9 stating that TCWP employees were not

eligible for the county’s plan as they were not county employees. 71 The Director

69F

70F

Id. at 32.

Id.

Id. at 34.

Id. at 33.

Id. at 34.

Id.

Id. at 35.

Id. at 36.

suggested that Spatafore contact Edmiston for further clarification. 72 Edmiston

later received a call from the Director about Spatafore’s inquiry. 73

71F

72F

On November 9, 2017, Edmiston emailed the TCWP Board and TCWP staff to

hold a special executive session to discuss personnel matters on November 10. 74

The special session was about Spatafore. 75

73F

74F

Shortly after Edmiston invoked the procedure to set a special executive

session, Spatafore sent an email that same day to Edmiston expressing concerns

about not receiving health care and retirement benefits, despite meeting eligibility

requirements for the past seven years. 76 Although Spatafore did not explicitly

connect his lack of health benefits to racial or ethnic discrimination, he mentioned

past discrimination in promotions and alluded to current discriminatory practices in

promotions. 77

75F

76F

On November 10, 2017, the TCWP Board held the special executive session to

discuss Spatafore’s work performance, alleged misconduct, complaints, and the

disruptions caused by his ongoing grievances. 78 The TCWP Board was aware of

Spatafore’s past complaints but did not address or consider any new claims of racial

discrimination or health benefit concerns in the meeting. 79 The TCWP Board

decided to evict Spatafore from employee housing, citing concerns about his

performance, past complaints, and potential litigation. 80 Later that day, Edmiston

sent Spatafore a formal 30-day eviction notice. 81 Spatafore testified that he

understood that this eviction likely meant he would no longer be offered work with

TCWP, as employee housing was typically provided to individuals expected to

return for the next season. 82

77F

78F

79F

80F

81F

Id.

Id. Edmiston testified that Spatafore’s inquiry did not mention concerns about

disparate treatment based on national origin, but rather that he had never been offered

health or retirement benefits despite believing he was eligible. Id.

Id.

Id. at 37.

Id.

Id. at 40-41.

Id. at 41-42 & n.41.

Id.

Id. at 42.

Id. at 43.

Following the eviction notice, Spatafore began seeking information about

health insurance eligibility, questioning TCWP’s denial of health benefits, and

suspecting discrimination based on his Native American ethnicity in violation of

Section 1557 of the ACA. First, between November 14 and November 20, Spatafore

contacted Wyoming Blue Cross Blue Shield (BCBSWy) and the Wyoming

Department of Insurance about health insurance eligibility through TCWP. 83

Second, between November 22 and November 30, Spatafore contacted the State of

Wyoming via email about employee health insurance eligibility, following an earlier

conversation with one of its employees. 84 The same employee replied to Spatafore’s

email, stating that she believed she had already responded to the earlier

conversation, and then, proceeded to provide Spatafore with a complaint form. 85

The employee then explained that health insurance eligibility was not as clear-cut

as retirement benefits and outlined BCBSWy’s eligibility requirements for seasonal

employees to qualify for benefits. 86 The employee instructed Spatafore to complete

the complaint form for further review by BCBSWy. 87

82F

83F

84F

85F

86F

On November 30, 2017, a BCBSWy employee responded to Spatafore’s

inquiry about insurance coverage by directing him to resolve the issue with his

employer. 88

87F

Spatafore moved out of TCWP housing and into Iwaseczko’s home between

December 9 and 10, 2017, where his rent and storage costs increased

considerably. 89

88F

On January 22, 2018, Spatafore publicly addressed the Teton County

Commissioners about hiring and health benefits concerns. 90 Spatafore stated, in

relevant part:

89F

The second subject I would like to address is benefits

distribution. . . . I have seen and experienced health and

retirement benefits in distribution occur, that seems to be

granted according to personal inclination rather than

objective law. I would like employees to know that benefits

Id.

Id. at 44.

Id.

Id. at 45.

Id. at 45-46.

distribution should follow the strict regulations within the

Wyoming Retirement System and the [ACA]. In particular,

Section 1557 of the [ACA], forbids any kind of

discrimination of health benefits.[ 91]

90F

Following the public statement, Spatafore wrote a letter to the TCWP Board on

January 24, 2018, notifying the TCWP Board that he attended the County

Commissioners Board meeting and made a statement “concerning hiring practices

and benefits distribution to minority employees.” 92 Spatafore attached a copy of his

statement to the letter. 93 Edmiston responded on January 29, 2018, denying the

allegations and asserting TCWP’s practices were non-discriminatory. 94

91F

92F

93F

In February 2018, Spatafore inquired about rehire offers for the 2018

season. 95 On February 26, 2018, Edmiston confirmed that Spatafore would not be

invited back, citing his negative 2017 performance evaluation. 96

94F

95F

On March 22, 2018, Spatafore filed an ACA complaint with OSHA alleging

that Respondent violated the ACA’s employee protection provision when: (1) it gave

him a negative performance evaluation on September 28, 2017; (2) he was evicted

from employee housing; and (3) he was not rehired as a seasonal employee because

he raised a series of concerns about Respondent’s alleged discriminatory employee

practices, including offering health benefits to a white employee but not a Native

American. 97 OSHA issued Secretary’s Findings on December 31, 2018, finding that

Spatafore had not engaged in protected activity under the ACA. 98 Spatafore filed

objections to the Secretary’s Findings and requested a hearing before the OALJ on

January 11, 2019. 99

96F

97F

98F

Id. at 46.

Id.

Id. at 46-47.

Id. at 47.

Id. & n.44. The record reflects that in January 2018, TCWP’s management met to

review crew needs for the 2018 season and discussed that Spatafore would not be re-hired

due to performance concerns. Id. at 45.

Id. at 2.

Id.

3. Marta Iwaseczko’s Employment History and Background

Marta Iwaseczko was hired by TCWP as the Assistant Supervisor of the

Mosquito Program on June 20, 2005. 100 Iwaseczko was responsible for managing

the mosquito program, safety protocols, fieldwork, scheduling, and staff

oversight. 101 Iwaseczko had a strong performance record with no disciplinary

actions taken against her up until her termination in December 2017. 102

99F

100F

101F

In 2015, Iwaseczko received a copy of the TCWP Policy Handbook. 103

The TCWP Policy Handbook contains an acknowledgment form that states:

102F

I am fully aware of my obligations at all times to fully

comply with the responsibilities that are imposed on me as

a condition of employment. I understand that the

information I learn during my employment belongs to the

District and I agree to keep information I learn during my

employment confidential, which means I will not use it

other than in the performance of my duties, or disclose it to

any person or entity outside the District. 104

103F

The Policy Handbook also contains the following provision:

Personnel records are the property of the District.

Employees may view their personnel files in the presence

of the District Supervisor or his/her designee. No material

may be removed from the personnel file, or duplicated by

an employee. An employee may insert comments to his or

her file if desired. 105

104F

Iwaseczko received general training on TCWP’s policies but was not specifically

trained on the distribution of health care benefits or the ACA, despite having

provided some ACA training to staff. 106

105F

100

Id. at 48.

101

Id.

102

Id. at 49.

103

Id.

104

Id.

105

Id. at 50.

106

Id.

Iwaseczko and Spatafore had a personal and romantic relationship for

several years, which they kept private, although several TCWP employees either

suspected or were aware of the relationship. 107

106F

On April 27, 2017, about a month after Iwaseczko participated in designing

the housing survey, she forwarded an email to Spatafore about a seminar on

landlord-tenant rights. 108 The email related to concerns over whether TCWP’s

housing policies were discriminatory, particularly as to married couples. 109

Iwaseczko thought the seminar may inform Spatafore about his housing rights. 110

Over the next several months, Iwaseczko continued forwarding TCWP emails to her

personal email address, Spatafore, and another coworker.

107F

108F

109F

First, on June 4, 2017, Iwaseczko forwarded an email to Spatafore about an

event involving the American Civil Liberties Union (ACLU), suggesting that he

attend, given his concerns over potential discrimination issues. 111 Second, on July

13, 2017, Iwaseczko forwarded an email to a candidate for the Program Specialist

position about another employee who was also interested in applying for the

position. 112 Third, between October 7 and October 8, Iwaseczko forwarded several

emails to her personal account, which she later shared with Spatafore. 113

These emails included: (1) a February 2, 2016 email exchange concerning seasonal

employees, yearly applications, and retirement eligibility; (2) a March 21-22, 2016

email exchange between Edmiston, Rives, Daluge, and Lesley Beckworth to review

new job descriptions that were going into effect for the 2016 Season; and (3)

a March 21, 2016 email chain entitled “Pete-oh going forward.” 114 Fourth, on

October 16, 2017, Iwaseczko forwarded a July 11, 2017 email exchange about job

postings to her personal account and Spatafore. 115

110F

111F

112F

113F

114F

In November 2017, Edmiston sought assistance from Information Technology

(IT) to recover deleted emails from Iwaseczko, who had allegedly been sending

Id. at 50-51. Edmiston expressed concerns about the relationship and potential

conflicts of interest, especially when it came to designing a housing survey for returning

crew members and determining housing priorities. Iwaseczko defended her actions stating

that the survey was democratic and unbiased with staff input. Id.

107

108

Id. at 52.

109

Id.

110

Id.

111

Id.

112

Id.

113

Id. at 54.

114

Id.

115

Id. at 55.

personnel-related information outside of TCWP. 116 On November 9, 2017, IT sent

Edmiston an email with pertinent information in an attachment. 117 Edmiston also

began reviewing other employees’ emails in response to the WRS inquiry. 118

115F

116F

117F

On December 1, 2017, Iwaseczko communicated with Spatafore, on her

TCWP phone, about the status of the ACA and whether it might be repealed. 119

118F

On December 4, 2017, Iwaseczko, Daluge, and other employees were

interviewed regarding the potential release of sensitive information outside of

TCWP. 120 During these interviews, it was discovered that Iwaseczko had sent

emails containing personnel information to personal accounts. 121 Although

Iwaseczko initially denied knowledge of the emails, she later admitted to sending

them and explained that she believed Respondent needed to rectify its disparate

treatment of employees, particularly regarding employment benefits. 122

119F

120F

121F

On December 6, 2017, the TCWP Board met in an executive session to

discuss Iwaseczko disclosing internal information to “outside sources.” 123 The

TCWP Board reviewed several emails sent by Iwaseczko containing sensitive

information about employee benefits, job applications, and other internal

matters. 124 The TCWP Board lost trust in Iwaseczko, particularly after her failure

to provide a credible explanation for her actions. 125 Consequently, the TCWP Board

decided to offer Iwaseczko a severance package, which included two months’ salary

and continued health insurance coverage through January 2018. 126

122F

123F

124F

125F

On December 7, 2017, Edmiston and Cernicek presented Iwaseczko a

Voluntary Separation Agreement, giving her the option to resign or face

termination. 127 Shortly after presenting Iwaseczko with this offer, a computer

126F

116

Id. at 57.

117

Id.

118

Id. at 57-58.

119

Id. at 58.

120

Id. at 59-62.

121

Id. at 60-62.

122

Id. at 61.

123

Id. at 63.

124

Id. at 63-64.

125

Id. at 64.

126

Id.

127

Id. at 65.

forensics expert discovered that Iwaseczko used her work computer for non-work

purposes and emailed TCWP materials to her personal account. 128 Upon receiving

this information, Edmiston informed Iwaseczko that additional policy violations

were discovered, and that these violations were deemed additional grounds for

termination. 129 On December 18, 2017, Mateosky emailed Edmiston asking whether

TCWP should reconsider its offer of separation to Iwaseczko given the discovery of

additional violations. 130

127F

128F

129F

On December 22, 2017, Edmiston sent Iwaseczko a notice about health

insurance and retirement options, as Iwaseczko had not yet signed the Voluntary

Separation Agreement. 131 On December 29, 2017, Iwaseczko informed Edmiston

that she emailed BCBSWy earlier that day with her election to continue health

insurance through BCBSWy, but to decline dental, vision, or life coverage. 132

As Iwaseczko did not return the Voluntary Separation Agreement by the deadline,

Edmiston terminated her employment retroactively to December 7, 2017. 133

130F

131F

132F

Following Iwaseczko’s employment termination, she filed an ACA complaint

with OSHA on January 23, 2018. Iwaseczko alleged that Respondent violated the

ACA’s employee protection provision when it terminated her employment because

she assisted Spatafore with his discrimination claims. 134 OSHA issued Secretary’s

Findings on May 14, 2018, finding that Iwaseczko had not engaged in protected

activity under the ACA. 135 Iwaseczko timely filed objections to the Secretary’s

Finding and requested a hearing before the OALJ on June 18, 2018. 136

133F

134F

135F

4. Procedural History

On January 18, 2019, the Administrative Law Judge (ALJ) issued an Order

of Consolidation, thereby consolidating Complainants’ claims. 137 The ALJ

conducted a hearing on July 22-23, 2019. Following the hearing, the parties filed

136F

128

Id. at 66.

129

Id. at 67.

130

Id.

131

Id. at 68.

132

Id.

133

Id.

134

Id. at 2.

135

Id.

136

Id.

137

Id.

post-hearing briefs and responses. 138 On August 9, 2022, the ALJ issued a D. & O.

dismissing Complainants’ complaints. On August 22, 2022, Complainants petitioned

the ARB for review of the ALJ’s D. & O. For the reasons discussed below, we affirm.

137F

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the Board the authority to review

ALJ decisions under the ACA. 139 The Board reviews questions of law presented on

appeal de novo, but is bound by the ALJ’s factual findings if they are supported by

substantial evidence. 140 ‘“Substantial evidence’ is ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”’ 141 The Board

reviews an ALJ’s determinations on procedural and evidentiary rulings under an

abuse of discretion standard. 142

138F

139F

140F

141F

DISCUSSION

1. Governing Law

The ACA was enacted to reform the healthcare industry by reducing health

care costs and providing affordable health insurance to Americans. 143 The ACA’s

employee protection provision, Section 1558 of Title I, codified at 29 U.S.C. § 218c,

prohibits an employer from discharging or otherwise discriminating against an

employee because the employee has engaged in conduct protected by the statute. 144

To prevail on an ACA claim, an employee must demonstrate that: (1) they engaged

in activity that the ACA protects; (2) their employer took adverse action against

142F

143F

138

Id. at 3.

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. 13,186 (Mar. 6, 2020).

139

29 C.F.R. § 1984.110(b); see Morrell v. DLH Holdings Corp., ARB No. 2023-0030,

ALJ No. 2020-SOX-00005, slip op. at 9 (ARB Sept. 23, 2024) (citation omitted).

140

141

Morrell, ARB No. 2023-0030, slip op. at 9 (citation omitted).

May v. AGL Servs. Co., ARB No. 2022-0015, ALJ No. 2020-PSI-00001, slip op. at 6

(ARB Sept. 14, 2023), aff’d, No. 23-3152 (7th Cir. 2025) (citing Furlong-Newberry v. Exotic

Metals Forming Co., LLC, ARB No. 2022-0017, ALJ No. 2019-TSC-00001, slip op. at 22

(ARB Nov. 9, 2022)).

142

Perkins v. Cavicchio Greenhouses, Inc., ARB No. 2022-0018, ALJ No. 2019-ACA00005, slip op. at 7 (ARB Sept. 30, 2022) (citing 156 Cong. Rec. E618-04 (daily ed. Apr. 22,

2010) (statement of Rep. Jerry McNerney); 156 Cong. Rec. H1854-02 (daily ed. Mar. 21,

2010) (statement of Rep. Jackson Lee); 155 Cong. Rec. S11907-02 (daily ed. Nov. 21, 2009)

(statement of Sen. Max Baucus)).

143

144

29 U.S.C. § 218c(a).

them; and (3) their protected activity was a contributing factor in the adverse

action. 145 If the complainant meets their burden of proof, the respondent may avoid

liability if it proves by clear and convincing evidence that it would have taken the

same unfavorable personnel action in the absence of the complainant’s protected

activity. 146

144F

145F

In turn, an employee is protected by the ACA if the employee:

(1) received a credit under section 36B of Title 26 or a

subsidy under section 18071 of Title 42;

(2) provided, caused to be provided, or is about to provide

or cause to be provided to the employer, the Federal

Government, or the attorney general of a State information

relating to any violation of, or any act or omission the

employee reasonably believes to be a violation of, any

provision of this title (or an amendment made by this title);

(3) testified or is about to testify in a proceeding concerning

such violation;

(4) assisted or participated, or is about to assist or

participate, in such a proceeding; or

(5) objected to, or refused to participate in, any activity,

policy, practice, or assigned task that the employee (or

other such person) reasonably believed to be in violation of

any provision of this title (or amendment), or any order,

rule, regulation, standard, or ban under this title (or

amendment).[ 147]

146F

Hereinafter, we refer to these § 1558 protected-activity provisions as (a)(1)-(a)(5).

In the above-quoted text, “this title” refers to Title I of the ACA. 148 Title I

includes several health insurance and healthcare coverage reforms. These reforms

include but are not limited to, prohibiting lifetime and annual dollar limits on

essential health benefits, prohibiting pre-existing condition exclusions, providing for

the creation of health benefit exchanges, imposing insurance coverage requirements

for individuals, providing tax-credits for insurance premiums, and setting health

147F

145

29 C.F.R. § 1984.109(a).

146

Id. § 1984.109(b).

147

29 U.S.C. § 218c(a).

Banks v. Soc’y of St. Vincent De Paul, 143 F. Supp. 3d 1097, 1103-04 (W.D. Wash.

2015); see also Perkins, ARB No. 2022-0018, slip op. at 5.

148

insurance requirements for employers, also known as the “employer shared

responsibility provisions.” 149

148F

Also included in Title I is § 1557, which prohibits race or national origin

discrimination in health benefits, and is the basis for Complainants’ ACA

complaints. Section 1557 provides as follows:

. . . an individual shall not, on the ground prohibited under

title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et

seq.) . . . be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under, any

health program or activity, any part of which is receiving

Federal financial assistance, including credits, subsidies,

or contracts of insurance, or under any program or activity

that is administered by an Executive Agency or any entity

established under this title (or amendments).[ 150]

149F

Title VI of the Civil Rights Act of 1964 prohibits exclusion from participation in,

denial of benefits of, and discrimination under federally assisted programs on the

grounds of race, color, or national origin. 151 Notably, the merits of an antidiscrimination claim under Section 1557 are not enforced by DOL. 152 Therefore, the

ARB’s focus in adjudicating § 1558 is not whether TCWP’s denied health benefits on

a prohibited basis of race, color, or national origin, but whether TCWP retaliated

against Spatafore and/or Iwaseczko with respect to compensation, terms, conditions,

or other privileges of their employment due to a reasonable belief of a violation of §

1557.

150F

151F

2. The ALJ’s Reliance on Title VII’s Statutory Language and Caselaw

Section 1558 prohibits retaliation for engaging in protected activity. Section

1558 provides as follows:

No employer shall discharge or in any manner discriminate

against any employee with respect to his or her

compensation, terms, conditions, or other privileges of

Title I of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124

Stat. 119 (2010); see Procedures for the Handling of Retaliation Complaints Under Section

1558 of the Affordable Care Act, 81 Fed. Reg. 70,607, 70,608 (Oct. 13, 2016) (ACA Final

Rule).

149

150

42 U.S.C. § 18116(a).

151

Id. § 2000d.

The anti-discrimination provisions of Section 1557 are enforced by Health and

Human Services. See 45 C.F.R. Part 92.

152

employment because [the employee engages in protected

activity].[ 153]

152F

As cited above § 1557 prohibits denial of health care benefits on grounds of race and

national origin.

Both of these provisions are similar to Title VII of the Civil Rights Act of

1964, which prohibits race or national origin discrimination in employment

practices such as hiring, termination, and promotions. Because of the overlap of

these provisions with Title VII concepts, tribunals occasionally borrow or reference

Title VII caselaw in ACA whistleblower adjudication and adjudication under other

similar whistleblower statutes assigned to the DOL. Complainants in this case

heavily relied upon Title VII’s caselaw and argued to the ALJ that Section 1558

should be adjudicated under Title VII’s “oppositional” and “participation”

framework. 154 While there is some conceptual overlap between Title VII and

Section 1558 of the ACA, Section 1558 has distinct statutory language and is

predicated upon other whistleblower statutes such as the Consumer Product Safety

Improvement Act (CPSIA) and Surface Transportation Assistance Act (STAA). 155

Whistleblower statutes like Section 1558 prohibit retaliation concerning terms,

conditions, and privileges of employment based on protected activity generally in

the form of a complaint prong (a)(2), proceeding prongs (a)(3)-(a)(4), and a refusal

prong (a)(5). To the extent that Complainants’ arguments and the ALJ’s opinion

drift from that Section 1558’s framework into Title VII nuances and caselaw, we

refocus the adjudication on Section 1558’s language and whistleblower caselaw.

153F

154F

3. “Proceedings” under § 1558 (a)(3)-(a)(4)

A. The ALJ Correctly Found No “Proceedings” Occurred or Were about to Occur

Under § 1558 (a)(3)-(4), an employee is protected if an employee: testified or

is about to testify in a proceeding concerning such a violation; or assisted or

153

29 U.S.C. § 218c(a).

Before the ARB, Complainants argue: (1) Title VII’s protection covers activities

outside of formal litigation and includes Complainants’ participation in Spatafore’s claims

of discrimination; (2) participation protection under Title VII and the FLSA is broad;

(3) participation protection under ARB precedent is broad; (4) participation protection

includes protection for those “about to” engage in protected activity; and (5) participation

protection attaches based on the employee’s submission of a concern and cannot hinge on

the employer’s decision to investigate. Complainants’ Brief (Br.) at 23-33.

154

15 U.S.C. § 2087; 49 U.S.C. § 31105; see 154 Cong. Rec. S1669-02 (daily ed. March 6,

2008) (statement of Sen. Mark Pryor) (“We have drafted our provision based on existing

law. The [STAA] is the model we use to try to extend whistleblower protection under

narrow circumstances in this act.”).

155

participated, or is about to assist or participate, in such a proceeding. 156 Before the

ALJ, Complainants, citing Title VII, argued that their activities were both

participatory and oppositional in nature, and fall within protection under (a)(3)(a)(4). 157 The ALJ determined neither Complainant engaged in protected activities

under (a)(3) and (a)(4) because “no ACA section [1558] proceedings were conducted

by any entity in these cases prior to the filings of the ACA retaliation complaints

with OSHA.” 158 Given that the ALJ held no ACA proceedings occurred, he

examined Complainants’ activities under (a)(2) and (a)(5). 159

155F

156F

157F

158F

We affirm the ALJ’s reasoning above. The starting point for all statutory

interpretation is the language of the statute itself. 160 Provisions § 1558 (a)(3) and

(a)(4) provide, in relevant part, protection to an employee who testified or is about

to testify in a proceeding concerning such a violation; or assisted or participated, or

is about to assist or participate, in such a proceeding. The key term in these

provisions is “proceeding.” Noticeably, the text of the statute or regulation does not

explicitly define proceeding or what a proceeding entails under the ACA.

Nevertheless, “[c]ourts presume that Congress legislates against the backdrop of

existing statutes.” 161 Thus, we turn to the various whistleblower statutes we

adjudicate to assist in our interpretation of subsections (a)(3)-(a)(4). 162

159F

160F

161F

B. The Evolution of “Proceedings” within Comparable Whistleblower Statutes

The concept of a “proceeding” in whistleblower protection statutes has

evolved significantly over time, particularly as Congress, courts, and the ARB have

156

29 U.S.C. § 218c(a)(3)-(4).

157

Complainants’ Post-Hearing Brief at 56-64.

158

D. & O. at 81.

159

Id. at 83.

BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (stating that “our

inquiry begins with the statutory text,” because “[t]he preeminent cannon of statutory

interpretation requires us to presume that the legislature says in a statute what it means

and means in a statute what it says there.” (internal quotations and citations omitted)).

160

Orton Motor, Inc. v. U.S. Dep’t of Health and Hum. Servs., 884 F.3d 1205, 1214 (D.C.

Cir. 2018) (citing Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185 (1988) (noting courts

“presume that Congress is knowledgeable about existing law pertinent to the legislation it

enacts.”)).

161

Both parties heavily cite to and rely on Title VII precedent in their filings before the

ALJ and ARB. While the ARB has looked to Title VII to assist in interpreting various

statutes, reference to and reliance on Title VII is tempered by recognition that

whistleblower statutes have their own distinct frameworks and precedent. Palmer v.

Canadian Nat’l Ry., ARB No. 2016-0035, ALJ No. 2014-FRS-00154, slip op. at 26-27 n.113

(ARB Jan 4. 2017) (discussing distinctions between the AIR21 and Title VII models).

162

grappled with the scope of protection offered to employees reporting misconduct.

A foundational case in this debate is Brown & Root, Inc. v. Donovan, 163 in which the

Fifth Circuit Court of Appeals considered the scope of protections under the Energy

Reorganization Act (ERA). At the time, the ERA’s whistleblower provisions

protected employees who commenced or participated in proceedings related to

violations under the ERA. 164 The Brown & Root court narrowly interpreted

“proceeding” to refer strictly to formal legal or administrative processes, explicitly

excluding internal complaints from coverage. 165 The court reasoned that the statute

protected involvement in a “structured proceeding,” not just any act—such as

notifying an employer—performed in furtherance of compliance. 166 This textualist

approach effectively limited whistleblower protections to participation in official

enforcement mechanisms.

162F

163F

164F

165F

In contrast, the Third Circuit Court of Appeals in Passaic Valley Sewerage

Comm’rs. v. U.S. Dep’t of Lab. adopted an expansive interpretation of the term

“proceeding” under the Clean Water Act (CWA). 167 At the time, the CWA’s

whistleblower provisions protected employees who initiated or participated in “any

proceeding” under the CWA. 168 The Passaic Valley court recognized the ambiguity

in the term “proceeding” and expanded its meaning to encompass intercorporate

complaints. 169 The court grounded this expansion in the statute’s broad remedial

purpose, emphasizing that whistleblower protections would be hollow if limited only

to formal legal or administrative complaints, and cited to several decisions

166F

167F

168F

163

Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984).

Brown & Root, Inc., 747 F.2d at 1031. The relevant language of 42 U.S.C. § 5851(a)

prohibited employer discrimination against an employee who:

164

(1) commenced . . . a proceeding under [the ERA] . . . or . . . for the administration or

enforcement of the requirements of . . . [the ERA;] (2) testified . . . in any such

proceeding[; or] (3) assisted or participated . . . in any manner in such a proceeding

or in any other action to carry out the purposes of . . . [the ERA].

Id.

165

Id. at 1034-36.

166

Id. at 1032.

167

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

Passaic Valley Sewerage Comm’rs., 992 F.2d at 478. The relevant language of

Section 507(a) prohibited discrimination against an employee because the employee “has

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 [Clean Water Act].” Id.

168

169

Id. at 478-79.

interpreting other statutes to similarly protect internal complaints to the

employer. 170

169F

The tension between these two approaches led to significant legislative

intervention. Congress addressed the split when amending the ERA in the 1992

Energy Policy Act. 171 These amendments explicitly created a protection for internal

complaints while reaffirming protections for participation in ERA enforcement

actions before Congress or a governmental entity. 172 This statutory clarification set

the template for future whistleblower laws, including the Wendell H. Ford Aviation

Investment and Reform Act for the 21st Century (AIR21). 173 AIR21 adopted a

similar structure, and its language also distinguishes between internal disclosures

and proceedings. 174 Specifically, AIR21’s language clearly links “proceeding” with

more formal actions, such as filing or testifying. 175 The ACA and the CPSIA

followed suit, each modeling their whistleblower provisions on a similar

structure. 176 As a result, while internal complaints are now recognized as its own

protected activity, protection resulting from participating or assisting in a

“proceeding” suggests a more traditional, formal tribunal setting. Because we affirm

the ALJ’s conclusion that there were no proceedings in this matter until the OSHA

complaints filed in January and March 2018, we deny Complainants’ arguments

that several activities were protected as participation or assistance, or about to

participate or assist, in a proceeding under (a)(3) and (a)(4).

170F

171F

172F

173F

174F

175F

4. Protected Activity under § 1558 (a)(2), (a)(5)

Under § 1558 (a)(2) and (a)(5), an employee is protected if they provide

information or complain to their employer, the federal government, or state

attorneys general about, or refuse to participate in, conduct that they reasonably

170

Id. at 478-80.

Willy v. Admin. Rev. Bd., U.S. Dep’t of Lab., 423 F.3d 483, 489 n.11 (5th Cir. 2005)

(acknowledging legislative change).

171

See H.R. Rep. No. 102-474 (VIII), at 25, 78 (1992) (inserting protections for internal

complaints while maintaining separate protections for “testifying before Congress or at any

Federal or State proceeding regarding [the ERA.]”).

172

173

See 49 U.S.C. § 42121(a).

174

Id.

Id. § 42121(a)(2). The fact that “proceeding” is linked with “filed” and is accompanied

by “testify” seems to disaggregate “proceeding” from internal complaints and firmly places

“proceeding” within the, perhaps more historically correct, connation of a formal proceeding

before a tribunal.

175

176

Supra note 155.

believe violates any provision of Title I of the ACA. 177 To have a “reasonable belief,”

a complainant must have both a subjective, good faith belief and an objectively

reasonable belief that the complained-of conduct violates Title I. 178 The employee’s

belief is objectively reasonable if a reasonable person in the same (or similar)

factual circumstances and with the same (or similar) training and experience would

have believed that the conduct about which they complained constituted a violation

of the pertinent law. 179

176F

177F

178F

A. Overview Observations Concerning Spatafore’s Communications and Conduct

As detailed above, Spatafore argues that from October 2017 through January

2018 he engaged in protected activity. We observe generally that many of these

communications were not made to an (a)(2) entity, which is the employer, the

federal government, or a state attorney general.

Further, even if they had been made to an (a)(2) entity, they were not related

to a violation of ACA subject matter under Title I. For example, Spatafore’s claims

were not sufficiently connected with a denial of or interference with health care

benefits on the basis of race or national origin to constitute a reasonable belief of a

violation of § 1557. Instead, many of Spatafore’s claims of discrimination center

around alleged discrimination in hiring and promotion, subjects not contemplated

by § 1557. Spatafore’s lack of health care was connected to his status as a seasonal

worker. Not until late in the timeline of events did Spatafore state that his lack of

health care benefits was because of his Native American identity.

Finally, even if Spatafore’s complaints and conduct had been sufficiently

connected to a belief of a denial of health benefits on account of race, those beliefs,

while perhaps subjectively held, were not objectively reasonable beliefs and would

not constitute protected activity under either § 1558 (a)(2) or (a)(5) as both of those

provisions require the complainant to have both a subjective and objectively

reasonable belief. 180 The underlying facts for Spatafore’s belief of discrimination in

179F

177

29 U.S.C. §§ 218c(a)(2), (5); 29 C.F.R. §§ 1984.102(b)(2), (5).

Perkins, ARB No. 2022-0018, slip op. at 5 (citations omitted); see ACA Final Rule, 81

Fed. Reg. at 70,611-12.

178

Perkins, ARB No. 2022-0018, slip op. at 5 (citing Oberg v. Quinault Indian Nation,

ARB No. 2019-0036, ALJ No. 2017-ACA-00003, slip op. at 4-5 (ARB Feb. 22, 2021));

Halliday v. Transp. Express, ARB No. 2023-0024, ALJ No. 2020-STA-00067, slip op. at

(ARB Oct. 7, 2024) (in applying the reasonable belief standard to protected activity, a

complainant must demonstrate by a preponderance of the evidence that “a reasonable

person of similar experience, training, and factual knowledge would objectively believe that

a violation has occurred.”).

179

This overview does not apply to the November 7, 2017 email with the Teton County

Human Resources Director, the November 10 and 14, 2017 inquiries to BCBSWy, and the

180

health benefits center around alleged disparate treatment. As noted above, P.B., a

full-time senior staff member who is white, transitioned into a part-time employee

for personal reasons during the 2016 calendar year. 181 During this transition,

P.B. requested to keep his health insurance benefits and Iwaseczko made this

request on his behalf. TCWP agreed to continue health benefits for the remainder of

the year. This was conveyed in a “Pete-oh going forward” email. 182 The email

indicates that P.B. was allowed to keep his health benefits after converting to parttime work until the end of 2016, with a re-evaluation in November/December to see

what his role would be in 2017. P.B. returned for the 2017 season as a seasonal

employee; when he returned, he was no longer provided health insurance. 183

Spatafore argues that this is evidence of discrimination because it demonstrates

that a white employee in seasonal status received health care benefits but an

individual identifying as Native American in seasonal status did not. The ALJ

concluded that the two employees were not in comparable positions, and even if

they had been, a belief based on a single example was not objectively reasonable. 184

We affirm the ALJ’s reasoning and his application of that reasoning to

Complainants’ allegations. Below, we unpack the ALJ’s findings relative to

Complainants’ appeal and explain why we affirm the ALJ’s conclusions.

180F

181F

182F

183F

B. Spatafore’s November 9, 2017 Email Is Not Protected Activity under (a)(2) or

(a)(5)

Complainants claim that Spatafore’s November 9, 2017 email to Edmiston

was protected under (a)(2). To constitute protected activity under subsection (a)(2),

the email must have “provided, caused to be provided, or [was] about to provide or

cause to be provided to the employer . . . information relating to any violation of, or

any act or omission the employee reasonably believes to be a violation of, any

provision of this title (or an amendment of this title). . . .” 185

184F

October 26 and November 22, 2017 inquiries to the State of Wyoming Department of

Insurance.

181

D. & O. at 88.

182

Id. at 30-31.

183

Id.

Id. at 89. The ALJ’s findings and conclusions concerning protected activity were

based on a preponderance of the evidence after hearing and post-hearing briefing.

Complainants’ arguments (Complainants’ Br. at 39) about Equal Employment Opportunity

Commission (EEOC) guidance and Title VII precedent concerning evidence for a prima facie

case are not on point. Acosta v. Union Pac. R.R. Co., ARB No. 2018-0020, ALJ No. 2016FRS-00082, slip op. at 6-7 (ARB Jan. 22, 2020) (acknowledging that a prima facie showing

is not the standard once a case goes to hearing before an ALJ and a complainant is required

to prove the elements by a preponderance of the evidence).

184

185

29 U.S.C. § 218c(a)(2).

The ALJ concluded that Spatafore’s November 9, 2017 email was not

protected under (a)(2) because the email primarily expressed Spatafore’s concern

about being misclassified as a seasonal employee, which led to him not receiving

health care benefits on account of that status. It was not a claim that health care

benefits were denied on account of race or national origin discrimination. 186

The ALJ determined the email did not directly link the lack of benefits to his Native

American heritage even though Spatafore later testified that he intended to imply

such a connection. 187

185F

186F

Upon review, the ALJ’s finding is supported by substantial evidence.

The email’s text neither conveyed a complaint that the reason for not being

provided health insurance was related to his Native American heritage nor implied

that TCWP’s practices in providing health insurance were based on discrimination

of an employee’s race, color, or national origin. 188 As noted above, the email cited

the lack of health care benefits but this was due to Spatafore’s classification as a

seasonal employee. 189 In the context of explaining that Spatafore believed he

should have been re-classified as a part-time, rather than a seasonal employee, his

email stated, “I have never been offered health insurance or retirement benefits

despite fulfilling the eligibility requirements for both programs for the last seven

years.” 190

187F

188F

189F

On appeal, Complainants argue that the November 9, 2017 email is protected

“because Spatafore intended that it further his concerns about Section 1557, even if

he failed to make that intention clear in the text of the email.” 191 We disagree.

The ACA, as with the other whistleblower statutes we oversee, requires a

complainant to communicate their concern to the respondent in order to engage in

protected activity. 192 While a complainant need not cite to a specific legal provision,

the communication must convey a reasonable belief that the respondent is violating,

or is about to violate, a provision of Title I. 193 Mere internal contemplation is not

190F

191F

192F

186

D. & O. at 84.

187

Id. at 84-87.

188

Id. at 84.

189

Id.

190

Id.

Complainants’ Br. at 36. In support, Complainants rely on Gallas v. The Med. Ctrs.

of Aurora, ARB Nos. 2016-0012, 2015-0076, ALJ Nos. 2015-SOX-00013, 2015-ACA-00005

(ARB Apr. 28, 2017). As noted by Respondent, Gallas was decided in the context of a motion

to dismiss in which different standards apply. See Smith v. Franciscan Physician Network,

ARB No. 2022-0065, ALJ No. 2020-ACA-00004, slip op. at 15 n.88 (ARB June 29, 2023).

191

192

29 U.S.C. § 218c(a)(2).

Morrell, ARB No. 2023-0030, slip op. at 10 (citing Leviege v. Vodafone US, Inc.,

ARB No. 2019-0058, ALJ No. 2016-SOX-00001, slip op. at 4 (ARB Mar. 19, 2021) (“A

193

enough as such communication is essential to place a respondent on notice and

make the employer aware—either explicitly or implicitly—that the employee is

raising a concern about conduct prohibited by the ACA. 194 Thus, Spatafore’s

November 9, 2017 email was not protected under (a)(2) as it did not link the

provision of health care benefits to an allegation of discriminatory conduct by

Respondent. 195

193F

194F

Even if Spatafore’s complaints and conduct had been sufficiently connected to

a belief of a violation of § 1557, that belief, while perhaps satisfying the subjective

component, would not be objectively reasonable and thus would not constitute

protected activity under either (a)(2) or (a)(5) as both of those provisions require the

complainant to have both a subjective and objectively reasonable belief. As stated

above, Spatafore’s belief that he was denied health benefits was not objectively

reasonable. Spatafore testified that he believed health benefits “were offered” based

on “[t]he policy handbook.” 196 Yet, the Policy Handbook clearly lists categories of

employment and states that “temporary or seasonal employees [] will not be eligible

for benefits unless otherwise specified.” 197 An employee with Spatafore’s training

and experience, who has read the Policy Handbook and was aware of the various

categories of employment (and the benefits associated to employees based on the

categories) would understand that his lack of health care benefits was based on his

status as a seasonal employee, not his identity as a Native American.

195F

196F

Further, reliance on P.B.’s temporary health benefits during a transition

period does not earn Spatafore any credit in the category of objective

reasonableness. Spatafore was a long-time seasonal worker with no health benefits

while P.B. was a full-time employee who transitioned to part-time status and was

allowed to keep health benefits temporarily due to special consideration and

complainant need not cite a specific code provision she believes was violated to engage in

protected activity.”)).

See Henrich v. Ecolab, Inc., ARB No. 2005-0030, ALJ No. 2004-SOX-00051, slip op.

at 11 (ARB June 29, 2006) (“A would-be whistleblower must actually express his concerns

in order for his activity to be considered protected.”) (citing Knox v. U.S. Dep’t of Interior,

ARB No. 2006-0089, ALJ No. 2001-CAA-00003, slip op. at 5 (ARB Apr. 28, 2006)).

194

D. & O. at 86. To the extent the November 9 email is “about to provide” a complaint

under (a)(2) because it is connected with subsequent activity that itself is protected, we

reject this tenuous connection. Spatafore’s subsequent communications on November 10

and thereafter to BCBSWy, the State of Wyoming Department of Insurance, and the Teton

County Commissioners are not covered entities under an (a)(2). Even if those entities were

covered, at the time Spatafore sent the November 9 email, his belief was not objectively

reasonable.

195

196

Hearing Transcript (Tr.) at 280.

197

JX-1 at 17.

personal circumstances. 198 The ALJ concluded that the two employees were not in

comparable positions. 199 We affirm.

197F

198F

C. Spatafore’s January 2018 Address to County Commissioners

On January 22, 2018, Spatafore publicly addressed the Teton County

Commissioners about hiring practices and health benefits concerns. 200 On January

24, 2018, Spatafore wrote a letter to the TCWP Board, addressing potential

discrimination practices and citing ACA violations. 201 Edmiston responded on

January 29, 2018, denying the allegations and asserting TCWP’s practices were

non-discriminatory. 202

199F

200F

201F

The ALJ concluded that Spatafore had not shown in the address to the Teton

County Commissioners that he had an objectively reasonable belief that TCWP

violated § 1557 by race discrimination in offering health care benefits. 203 The ALJ

determined that Spatafore did not have an objectively reasonable belief because: (1)

the statement did not clearly provide information to the Teton County

Commissioners that specifically alleged race discrimination by TCWP; 204

(2) P.B. and Spatafore were not similarly situated; 205 and (3) Spatafore, since the

November 9 email, continued to gather information and consulted with an attorney,

but did not learn anything new to support his concern that there might be a

violation of § 1557. 206

202F

203F

204F

205F

We affirm the ALJ’s holdings. As noted above, the Teton County

Commissioners are not an (a)(2) entity. Even assuming the Commissioners were an

(a)(2) entity, Spatafore’s address, including his citation to § 1557 and the legal

standard, failed to clearly allege that TCWP denied health benefits based on race or

national origin, and instead, amounted to a general grievance about lack of benefits

due to personal inclination. 207 While Spatafore’s communication may satisfy the

206F

198

D. & O. at 88.

199

Id.

Id. at 45-46. The ALJ observed that for all purposes, Spatafore was no longer an

employee at this time. Id. at 95-96.

200

201

Id. at 46.

202

Id. at 46-47.

203

Id. at 97.

204

Id. at 96.

205

Id. at 97.

206

Id.

Supra notes 90-91. Complainants also argue that the ALJ erred by “expecting

Spatafore to fully investigate and reach a legal conclusion as to the legitimacy of his

207

subjective belief standard, it does not meet the objectively reasonable belief

standard. As noted above, Spatafore’s subjective belief that there was a § 1557

violation was not objectively reasonable. 208

207F

On January 24, 2018, Spatafore reported his address to the TCWP Board. 209

For the same reasons, we affirm the ALJ’s conclusion that the report of the prior

address to Teton County Commissioners did not constitute an objectively reasonable

belief of an ACA violation of race discrimination in the provision of health care

benefits.

208F

D. Information Gathering: Spatafore’s November 7 Contact with Teton County

Human Resources Director; November 10, 14 Inquiries to BCBSWy; and

October 26 and November 22 Inquires to State of Wyoming

Spatafore’s November 7 communication to Teton County Human Resources

Director, his November 10 and 14 inquiries to BCBSWy, and his October 26 and

November 22 communications to State of Wyoming were not protected under (a)(2)

because among other reasons these were not covered entities under that

provision. 210 As cited above, (a)(2) covers complaints of a reasonable belief of a

violation made to employers, the federal government, or state attorneys general.

209F

The ALJ ultimately found that the November 7, 2017 email with the

Director, the November 10 and 14, 2017 inquiries to BCBSWy, and the October 26

and November 22, 2017 inquiries to the State of Wyoming Department of Insurance

claims.” Complainants’ Br. at 38. Complainants cite to Sarbanes Oxley Act of 2002 (SOX)

caselaw in support of their argument, including Wadler v. Bio-Rad Labs, in which the

Ninth Circuit Court of Appeals held that generally, employees are not required to

undertake an investigation before reporting their concerns. Wadler v. Bio-Rad Labs., Inc.,

916 F.3d 1176, 1188 (9th Cir. 2019). Complainants misinterpret the ALJ’s analysis as the

ALJ discredited Spatafore’s testimony, only in part, for not alleging there was an actual

violation after gathering information and meeting with an attorney. In doing so, the ALJ

did not place a burden on Spatafore to investigate the matter. Rather, Spatafore initiated

an “investigation” on his own accord from November 2017 to January 2018, and the ALJ

appropriately evaluated the information yielded from this investigation. Given that the ALJ

already determined that Spatafore’s November 9 email was not based on an objectively

reasonable belief, and the subsequent three-month investigation did not produce any new

information of a possible violation, the ALJ ultimately concluded that a reasonable

employee in Spatafore’s position would not have believed that TCWP was violating the ACA

at the time of his testimony. D. & O. at 97.

208

Id.

209

Id. at 98.

210

Id. at 72, 86-87.

protected under (a)(5) as “information gathering.” 211 The ALJ reasoned that

Spatafore was in the preliminary steps of determining whether there was a

violation and was in an information-gathering phase when he made these

contacts. 212

210F

211F

It is difficult to see how “information gathering” could be reasonably

interpreted to be covered under § 1558 (a)(5). Under this provision of the ACA,

employers are prohibited from discharging or discriminating in terms, conditions,

and privileges because the employee:

(5) objected to, or refused to participate in, any activity,

policy, practice, or assigned task that the employee (or

other such person) reasonably believed to be in violation of

any provision of this title (or amendment), or any order,

rule, regulation, standard, or ban under this title (or

amendment).[ 213]

212F

The language in (a)(5) is common in many of the DOL’s whistleblower

statutes as a refusal prong. Congress protects whistleblowers who refuse to

participate in what they reasonably believe to be a violation of the subject matter of

the statute at hand. The reasoning for the protection is that the employee’s refusal

would generate a clash between the employer and the employee. 214 This clash may

generate employer hostility and retaliation for various reasons including business

goals. The reasoning for the protection does not seem to extend to pre-clash

activities. We note that Congress in (a)(2) gave some protection to preliminary

activities in prohibiting an employer from retaliating when the employer learns that

the employee is “about to provide” a qualifying complaint to a covered entity.

Congress did not provide this expansiveness in (a)(5). We need not resolve the

boundaries of (a)(5) at this point to adjudicate Spatafore’s complaint. Even

assuming the ALJ’s conclusion that these three claims are (a)(5) protected activity,

we conclude below that Spatafore failed to show that these three protected activities

were a contributing factor in the alleged adverse actions at issue.

213F

211

Id. at 91-92.

212

Id. at 90.

213

29 U.S.C. § 218c(a).

Cf. 128 Cong. Rec. S29192 (daily ed. Dec. 7, 1982) (noting in the context of the STAA,

Congress recognized the need “to [ensure] that employees are not forced to drive unsafe

vehicles or commit unsafe acts . . . [and to] provide protection for those employees . . . for

exercising their rights and responsibilities . . . .”).

214

E. TCWP Perceived Spatafore as a Litigation Risk and Knew About Spatafore’s

Search for Legal Representation

Complainants argue that through Spatafore’s contacts with various entities,

TCWP Board became aware that Spatafore was searching for an attorney,

presumably regarding TCWP’s compliance with law and such knowledge influenced

the TCWP Board’s perception of Spatafore as litigious. Thus, according to

Complainants, this was a case of “perceived protected activity under the ACA” or

“anticipatory retaliation.” 215 The ALJ cited Keene v. Houston Lighting & Power

Co., 216 and Willy v. Coastal Corp., 217 for the position that while there has been

some recognition of “perceived protected activity,” these decisions have not fully

developed the theory. 218 The ALJ described Complainants’ theory of protected

activity as “far too attenuated” to carry Complainants’ burden of proof:

214F

215F

216F

217F

A complainant would need some sort of tangible proof,

whether direct or circumstantial evidence, that shows that

the respondent drew the conclusion that the complainant

was engaging in, or was about to engage in, ACA protected

activity to present a tenable claim of perceived protected

activity.[ 219]

218F

Without adopting the category of “perceived protected activity,” we agree

with the ALJ’s ultimate conclusion. Even if there were a category of “perceived

protected activity” under the ACA, a generalized “litigation risk” concern is not

enough for protection. The TCWP Board described the litigation concern about

Spatafore in the form of fabricated slip and fall litigation. 220 As the Board

repeatedly has held under similar whistleblower statutes it administers, the ACA is

not a general remedy for employment grievances unrelated to health insurance and

healthcare coverage reforms under Title I. 221 As previously addressed, prior to mid219F

220F

215

Complainants’ Br. at 25-29.

Keene v. Houston Lighting & Power Co., ARB No. 1996-0004, ALJ No. 1995-ERA00004 (ARB Feb. 19, 1997).

216

217

Willy v. Coastal Corp., No. 1985-CAA-00001, slip op. at 13-14 (Sec’y June 1, 1994).

218

D. & O. at 93.

219

Id.

The ALJ cited to Cernicek’s deposition testimony that the TCWP Board’s concern

regarding Spatafore as a litigation risk was in the form of fabricated slip and fall suits by

someone who was hostile to TCWP. Id. at 41-42 n.41.

220

Dickerson v. Iteris, Inc., ARB No. 2023-0026, ALJ No. 2019-SOX-00009, slip op. at 13

(ARB Sept. 17, 2024) (SOX “is not a general remedy for simple employment grievances

unrelated to corporate fraud[.]”) (citing Forrand v. Fedex Express, ARB No. 2019-0041, ALJ

No. 2017-AIR-00016, slip op. at 3 n.8 (ARB Jan 4, 2021) (AIR21 “is not a general remedy for

221

November, Spatafore’s complaints to Respondent were about its alleged

discrimination in hiring and promotions—not health care benefits or ACA related

matters. 222

221F

5. We Affirm the ALJ’s Findings and Conclusions that Iwaseczko Did Not

Engage in Protected Activity

The ALJ also examined Iwaseczko’s alleged protected activities, including

Iwaseckzo’s silence during a September 2017 telephone call with Edmiston, 223

Iwaseczko’s forwarding emails to her personal email account and to Spatafore, 224

and Iwaseczko’s statements during a December 4, 2017 meeting with Edmiston and

Cernicek. 225 The ALJ determined that these activities were not protected under

either (a)(2) or (a)(5). The ALJ held: (1) Iwaseczko’s silence during the September

phone call did not represent opposition to TCWP’s policy on health care benefits; 226

(2) it was not objectively reasonable for Iwaseczko to have believed that Respondent

was violating Title I when she forwarded TCWP emails; 227 and (3) Iwaseczko’ s

statement about disparate treatment on December 4 was not based on a reasonably

held belief that a violation of Title I occurred. 228 As explained below, we affirm

these findings.

222F

223F

224F

225F

226F

227F

A. We Affirm the ALJ’s Findings that Iwaseczko’s Refusal to Assist in Retaliation

by Remaining Silent Is Not Protected Activity

Iwaseczko argues that by remaining silent in September 2017, she engaged

in a protected refusal to participate in TCWP’s retaliation against Spatafore. In this

particular setting and under these facts, we find this is an extended reach of (a)(5)’s

refusal language. In the back and forth with Spatafore in the September 2017

timeframe, Edmiston had the opportunity to ask Iwaseczko about Spatafore

employment grievances unrelated to air safety.”); Dick v. USAA, ARB No. 2022-0063, ALJ

No. 2018-STA-00054, slip op. at 18 n.126 (ARB Apr. 16, 2024) (“[t]he STAA is not a general

remedy for employment grievances unrelated to commercial vehicle safety.”) (citing

Kirschmann v. Hampton Rds. Transit, ARB No. 2023-0002, ALJ No. 2021-NTS-00006, slip

op. at 9 n.3 (ARB Feb. 14, 2024) (noting that the National Transit Systems Security Act is

not a general anti-retaliation statute)).

222

D. & O. at 95.

223

Id. at 100-01.

224

Id. at 101-06.

225

Id. at 106-08.

226

Id. at 101.

227

Id. at 103.

228

Id. at 108.

regarding his performance and state of mind given Iwaseczko’s general collegiality

with Spatafore. Edmiston’s questions were not violations of Title I or directions for

Iwaseczko to violate Title I. Iwaseczko preferred to remain silent rather than to

engage in something that involved a conflict given her personal relationship with

Spatafore. 229 Edmiston testified that she did not consider Iwaseczko’s silence one

way or the other. 230 The ALJ concluded that this silence was not protected under

(a)(5). We agree. To the degree that silence can be a form of protected activity in the

face of clear violations or directives to violate a statute, silence in this context was

insufficient to constitute protected activity under § 1558.

228F

229F

B. We Affirm the ALJ’s Findings that Iwaseczko’s Forwarding Emails Is Not

Protected Activity

With respect to the nature and circumstances of Iwaseczko’s forwarding

sensitive content from TCWP personnel records to Spatafore and others to assist

them in their objectives, the ALJ commented on the need to balance ACA

protections with employer policies protecting such information from disclosure.

The ALJ wrote as follows:

Sometimes it may be necessary to ignore an employer’s

information management policies to get the information

out in the open. Precedent, however, indicates that an

employee’s release of confidential information may be so

egregious that it loses its status as not protected activity.

The precedent indicates that the reasonableness of such

departures from policy turns on the distinctive facts of the

case.[ 231]

230F

In this case, Iwaseczko was not operating under a reasonable belief, and

thus, the ALJ did not find her conduct of forwarding emails protected under § 1558.

We affirm the ALJ’s findings and conclusions. As the ALJ reasoned, courts have to

balance an employee’s advocacy and the objectives of the statute’s protection with

the employer’s need to protect the confidential business records of employees,

clients, and customers. 232 Under some circumstances, an employee’s violation of

231F

Id. at 100-01. As of September 2017, Spatafore’s concerns surrounded job

classification and alleged discrimination in hiring and promotion. It was not until October

2017 that Spatafore began investigating health insurance benefits. Any silence on the part

of Iwaseczko was unrelated to alleged or perceived ACA violations.

229

230

Id. at 100.

231

Id. at 104-05 (citations and footnotes omitted).

See, e.g., Niswander v. Cincinnati Ins. Co., 529 F.3d 714, 722 (6th Cir. 2008)

(reasoning in a Title VII case that “[a] balance must be achieved between the employer’s

recognized, legitimate need to maintain an orderly workplace and to protect confidential

232

company policy to collect information has been found to be protected activity. 233

But there are limits to the degree of conduct that may be protected. 234 Iwaseczko

was not at liberty to search through confidential company files and records and

distribute those records in violation of company policy and third-party privacy at

will on a “mere hunch” without facing consequences from her employer. 235

232F

233F

234F

Complainants complain that Iwaseczko did not violate company policy and

the ALJ failed to follow ARB precedent in Vannoy, 236 which addressed the conflict

between the protection of the law and the restraints of company policy. 237

Complainants’ reliance on Vannoy is misguided. In Vannoy, the ALJ granted a

motion for summary decision and dismissed the employee’s claim because he was

terminated due to undisputed evidence that he misappropriated employee

personally identifiable information in violation of company policy. 238 The ARB

235F

236F

237F

business and client information, and the equally compelling need of employees to be

properly safeguarded against retaliatory actions.”).

D. & O. at 101 (citing Mosbaugh v. Ga. Power Co., Nos. 1991-ERA-00001, -00011

(Sec’y Nov. 20, 1995); Adams v. Coastal Prod. Operations, Inc., No. 1989-ERA-00003 (Sec’y

Aug. 5, 1992); Paynes v. Gulf States Utils. Co., No. 1993-ERA-00007 (ALJ Dec. 3, 1997)).

233

Id. at 104 (citing Lee v. Parker-Hannifin Corp., ARB No. 2010-0021, ALJ No. 2009SWD-00003, slip op. at 11-12 (ARB Feb. 29, 2012) (summarizing DOL caselaw that

unauthorized or insubordinate conduct may fall outside whistleblower protections if

unreasonable or indefensible based on the distinct facts of each case; while employees have

leeway for impulsive behavior, protection turns on the objective reasonableness of the

employee’s belief, which may be assessed in light of their authority and the context of their

conduct)).

234

Id. at 105. The ALJ identified several cases in which an employee’s conduct was

deemed egregious or excessive and was therefore, not protected. Id. at 104-05 n.83

(citing Lockert v. U.S. Dep’t of Lab., 867 F.2d 513, 518 (9th Cir. 1989) (holding an

inspector’s efforts to conduct research to identify quality problems was not protected when

he violated company policy by leaving his work area without permission from his

supervisor); Hoffman v. NetJets Aviation, Inc., ARB No. 2009-0021, ALJ No. 2007-AIR00007, slip op. at 9 (ARB Mar. 24, 2011) (holding an employee’s conversation recording was

not protected under AIR21 as the conversation was indiscriminate and excessive of topics

unrelated to air safety, including business strategy and finances); Hellman v. Weisberg, No.

CV-06-1465, 2007 WL4218973, at *5 (D. Az. Dec. 3, 2007) (holding a judicial employee’s

conduct in disclosing confidential court memoranda was not protected under Title VII as

she failed to show that disclosure was necessary to preserve the documents), aff’d without

addressing whether protected activity was established, Hellman v. Weisberg, 360 F. App’x

776 (9th Cir. 2009)).

235

Vannoy v. Celanese Corp., ARB No. 2009-0118, ALJ No. 2008-SOX-00064, slip op.

15-17 (ARB Sept. 28, 2011).

236

237

Complainants’ Br. at 31-33.

238

Vannoy, ARB No. 2009-0118, slip op. at 15.

remanded the case to the ALJ because an evidentiary hearing was necessary to

determine the circumstances surrounding the employee’s procurement of sensitive

company and employee data and whether those actions he took for the purpose of

distributing the data to the IRS constituted protected activity. 239 The ARB’s

decision in Vannoy did not create a bright-line rule protecting employees from

disclosing confidential information. Rather, in Vannoy, the Board instructed the

ALJ to resolve whether the information that the employee procured from the

company is the kind of information that Congress intended to protect under

whistleblower programs and if the manner of the transfer of information was

protected within the scope of SOX. 240 The ARB concluded that Vannoy had a

reasonable belief of a SOX violation when he disclosed the material to the IRS. 241

Comparatively, in the present case, we conclude, as did the ALJ, that an employee

with Iwaseczko’s training and experience would not have held an objectively

reasonable belief that TCWP’s policies and practices on offering health care benefits

violated Title I when she forwarded the emails to individuals in violation of

company policy. 242

238F

239F

240F

241F

Furthermore, the unreasonableness of Iwaseczko’s conduct is underscored by

the fact that prior to any alleged or perceived ACA violations by TCWP, she was

forwarding other TCWP personnel information to personal email accounts.

For example, on July 13, 2017, Iwaseczko forwarded an email to a candidate for a

job posting about another candidate’s interest in applying for the position. 243 The

original email was sent by a candidate to Edmiston, which Edmiston then

forwarded to Daluge and Iwaseczko’s TCWP email accounts. Iwaseczko then

forwarded this email to the other candidate and commented “[g]o figure.” 244

This conduct cannot be sanctioned as protected activity under the ACA.

242F

243F

C. We Affirm the ALJ’s Findings and Conclusions that Iwaseczko’s Statements in

the December 4 Meeting Were Not Protected Activity

In a statement during the December 4 meeting with TCWP in response to an

question why she forwarded emails in violation of company policy, Iwaseczko

239

Id. at 15-17.

240

Id. at 17.

Id. at 11 (“Vannoy’s complaints concerning Celanese’s business practices, assertions

as to misstated financial records, and shortcomings in the company’s ‘accounting controls’

support the reasonableness of his belief that the company was engaging in accounting

misconduct in violation of SOX. We find that Vannoy alleged facts sufficient to sustain his

claim that he engaged in protected activity under Section 806.”).

241

242

See D. & O. at 103-05.

243

Id. at 52.

244

JX-62.

claimed that she was assisting Spatafore in rectifying “disparate treatment.” 245

In the D. & O., the ALJ held that while Iwaseczko’s activity satisfied some aspects

of (a)(2) and (a)(5), Iwaseczko did not engage in protected activity during the

December 4, 2017 meeting when she brought up the subject of “disparate

treatment” because Iwaseczko did not have an objectively reasonable belief that

TCWP was making health care benefits decisions on the basis of race or national

origin in violation of the ACA. 246 The ALJ concluded it was not objectively

reasonable for an employee with Iwaseczko’s training and experience to believe that

TCWP’s policies and practices in offering health care benefits violated Title I. 247

The ALJ considered several factors when determining that a reasonable employee

in Iwaseczko’s position would have recognized that TCWP’s policy not to offer

health care insurance to seasonal employees was based on a financial decision and

not based on race, color, or national origin. 248 The ALJ also focused on the

following: (1) her mid-level management position; (2) her knowledge of P.B.’s

transition from full-time to part-time during the 2016 season, including the fact

that P.B.’s benefits would be reassessed in 2017 once it became clearer what his role

would be and that it was not necessary to obtain new insurance benefits for P.B. at

that time; (3) she was aware that when P.B. came back for the 2017 season he was

no longer provided health insurance; (4) the lack of health benefits to seasonal

employees mostly impacted white employees; (5) TCWP’s policy not to offer health

care insurance to seasonal employees was based on a financial decision; and

(6) she received no new information pertaining to TCWP’s alleged discriminatory

practices after forwarding the “Pete-oh” email to Spatafore. 249

244F

245F

246F

247F

248F

6. Complainants’ Other Arguments Concerning Protected Activity Do Not

Alter Our Decision

On appeal, Complainants argue generally that the ALJ erred for various

reasons including that several of Complainants’ communications and conduct were

covered as participation in a proceeding or as “about to participate.” They also argue

that several communications and activities were oppositional activities and thus

protected. Many of these theories are expressly based on other statutes, particularly

Title VII and its case law, which we addressed above. As explained above, we affirm

the ALJ’s protected activity findings of fact as supported by substantial evidence

and conclusions of law as legally sound.

245

D. & O. at 106.

246

Id. at 107-08, 123.

247

Id. at 102-06.

248

Id. at 103, 108.

249

Id.

First, Complainants allege that the ALJ erred by denying protection to

Spatafore’s disclosures to Iwaseczko. 250 In an (a)(2) analysis, the D. & O. states,

“[t]here was no provision of information to any supervisory employee at TCWP

(except to Iwaseczko in the context of their personal relationship) or to the Board of

a concern that health care benefits were improperly being restricted based on

considerations of race, color, or national origin.” 251 Complainants never made this

argument—that Spatafore’s disclosures to Iwaseczko should be protected—before

the ALJ in their hearing requests, filings, or Post-Hearing Brief. The Board

typically does not consider arguments or claims raised for the first time on appeal,

and Complainants have offered no argument or justification as to why the Board

should consider the new claim here. 252

249F

250F

251F

Second, Complainants generally contend the ALJ did not properly assess the

reasonableness of their beliefs and cite to specific pages of the D. & O. 253 In doing

so, Complainants are correct that individuals are not required to disclose the basis

of their reasonable beliefs when engaging in protected activity. 254 Complainants

accurately state that Spatafore was not expected to conduct an investigation to

support his claim before making a complaint in order to engage in protected activity

under 1558. 255 Complainants also correctly identify the objective reasonableness

standard adopted by the ARB in several whistleblower statutes, including under the

ACA. 256 The objective reasonableness standard evaluates a belief based on the

employee’s knowledge, training, and experience. 257 Although Complainants

perceive that the ALJ did not properly assess their reasonable beliefs in the D. &

O., a review of the D. & O. reflects that the ALJ cited to Reznik v. Incontact, Inc., 258

252F

253F

254F

255F

256F

257F

250

Complainants’ Br. at 35-42.

251

D. & O. at 85.

Bauche v. Masimo Corp., ARB Nos. 2023-0016, -0031, ALJ Nos. 2022-SOX-00010,

-00026, slip op. at 14 (ARB July 31, 2024) (citing Smith, ARB No. 2022-0065, slip op. at 6).

252

253

D. & O. at 7, 88-91, 97, 102-08.

See Sylvester v. Parexel Int’l LLC, ARB No. 2007-0123, ALJ Nos. 2007-SOX-00039,

-00042, slip op. at 15 (ARB May 25, 2011).

254

Complainants cite Wadler, 916 F.3d at 1188, in which the Ninth Circuit Court of

Appeals held that generally, employees are not required to undertake an investigation

before reporting their concerns. Supra note 207.

255

Perkins, ARB No. 2022-0018, slip op. at 5 (citations omitted); see ACA Final Rule,

81 Fed. Reg. at 70,611-12 (explaining that a complainant must have both a subjective, good

faith belief and an objectively reasonable belief that the complained-of conduct violates one

of the enumerated categories of law).

256

257

Complainants’ Br. at 37.

258

Reznik v. Incontact, Inc., 18 F.4th 1257 (10th Cir. 2021).

and Oberg v. Quinault Indian Nation. 259 Both Reznik and Oberg cite to Sylvester

and support the proposition that “objective reasonableness is based on a reasonable

person in the same factual circumstances and with the same training and

experience as the complainant.” 260 Therefore, the ALJ did not err.

258F

259F

Third, Complainants aver that the ALJ erred by finding that an employee

with Spatafore’s training and experience would understand TCWP’s business

decision not to provide health care benefits to seasonal workers without identifying

what training and experience Spatafore possessed that would prepare him to reach

this conclusion. 261 Complainants are somewhat correct that the ALJ never

explicitly lists what training and/or experience Spatafore possessed that would

prepare him to reach such a conclusion. Yet, throughout the ALJ’s reasonable belief

analysis, the ALJ refers to Spatafore’s position and experience as a seasonal

employee, and that experience as a seasonal employee provided Spatafore with the

requisite knowledge that TCWP distributed benefits based on work classification

(full-time, part-time, or seasonal). 262 Spatafore also testified at the hearing that he

believed health benefits “were offered” based on “[t]he policy handbook.” 263 The

Policy Handbook clearly lists categories of employment and states that “temporary

or seasonal employees who will not be eligible for benefits unless otherwise

specified.” 264 An employee with Spatafore’s training and experience, who has read

the Policy Handbook, would not have an objective reasonable belief that TCWP was

handling health care benefits on the basis of race or national origin in violation of

the ACA.

260F

261F

262F

263F

Finally, Complainants argue the ALJ failed to consider and protect

Spatafore’s alleged protected activities in March and August 2017. 265 Complainants

do not actually describe what these activities entailed or make an argument why

these activities should be protected under the ACA. Review of the record reflects

that these activities refer to Spatafore’s March 2017 position classification meeting

with Rives and Spatafore’s August 2017 hiring discrimination complaints to Girard.

Complainants’ filings before the ALJ never argued that these activities should be

264F

259

Oberg, ARB No. 2019-0036, slip op. at 4-5.

260

D. & O. at 88.

261

Complainants’ Br. at 38.

See D. & O. at 88 (“Spatafore had long worked as a seasonal employee, and had

never had health care benefits, or even asked for them prior to the November 9, 2017

email. He had turned down promotions that could have led to eligibility for health care

benefits.”).

262

263

Tr. at 280.

264

JX-1 at 17.

265

Complainants’ Br. at 42.

protected under the ACA. While Complainants identified these events in their PostHearing Brief as proposed findings of fact 266 and then, discussed these events as

general concerns about discrimination and work classification in their Reply

Brief, 267 they also conceded that it was not until the November 9, 2017 email that

Spatafore mentioned any concerns regarding health coverage. 268 As previously held,

the ACA is not a general employee grievance statute. 269 Spatafore’s March 2017

and August 2017 concerns were unrelated to the ACA and these claims were not

properly raised before the ALJ. Accordingly, the ALJ did not err in failing to

consider Spatafore’s March 2017 position classification meeting and August 2017

hiring discrimination complaints.

265F

266F

267F

268F

7. We Affirm the ALJ’s Contributing Factor Findings and Conclusions

To establish a violation under the ACA, a complainant must prove by

preponderance of the evidence that protected activity was a contributing factor in

the adverse action. 270 The ARB has held that a contributing factor is any factor,

which, alone or in combination with other factors, affects the outcome of the

decision. 271 Employees may meet their evidentiary burden with circumstantial

evidence. 272 Circumstantial evidence may include, but is not limited to, temporal

proximity, inconsistent application of an employer’s policies, pretext, shifting

explanations by the employer, or antagonism. 273

269F

270F

271F

272F

A. The ALJ’s Contributing Factor Analysis Concerning Spatafore

As examined above, the ALJ found three activities protected under ACA’s

(a)(5): Spatafore’s November 7 communication to Teton County Human Resources

Director; Spatafore’s November 10 and 14 inquiries to BCBSWy; and Spatafore’s

October 26 and November 22 inquiries to State of Wyoming Department of

Insurance. The ALJ considered each of these protected activities when analyzing

266

Complainants’ Post-Hearing Brief at 16, 20.

267

Complainants’ Reply Brief (OALJ) at 5.

268

See id. at 4.

269

Supra note 221.

270

29 C.F.R. § 1984.109(a).

Williams v. QVC, Inc., ARB No. 2020-0019, ALJ No. 2018-SOX-00019, slip op. at 12

(ARB Jan. 17, 2023) (citation omitted).

271

272

Id. (citation omitted).

273

Id. (citation omitted).

the alleged adverse actions and concluded that none of them were a contributing

factor in the three alleged unfavorable adverse actions. 274

273F

Spatafore’s September 28, 2017 Negative Performance Evaluation

First, the ALJ considered Spatafore’s September 28, 2017 negative

performance evaluation and determined there was no causal link to any alleged

protected activity as the performance evaluation predated the first alleged ACA

protected activity. 275 We affirm the ALJ’s findings and conclusions.

274F

ii.

Spatafore’s Eviction

Second, the ALJ determined there was no evidence that the decision to evict

Spatafore was based in any way on an ACA protected activity or Spatafore’s

communications to Teton County, BCBSWy, and the State of Wyoming. 276 We again

affirm. Regarding many of Spatafore’s contemporaneous communications, there are

both timing and knowledge issues. The ALJ concluded that Complainants had not

proven by a preponderance of evidence that the TCWP Board had knowledge of

Complainants’ claim that TCWP was denying health benefits on the basis of race. 277

Prior to Spatafore’s email to BCBSWy (not an (a)(2) entity) on November 10, 2017,

Spatafore’s communications did not involve language connecting a lack of health

benefits to allegations of discrimination on the basis of race or national origin, i.e., §

1557. It was only on November 10 that Spatafore’s claims connected his lack of

health benefits with alleged race discrimination under § 1557 in the email to

BCBSWy. Spatafore was evicted formally on November 10 independent of the email

chain to BCBSWy. Several of Spatafore’s other communications were made after

that eviction decision. The TCWP Board did not have knowledge of Spatafore’s

communications until after the November 10 decision, perhaps not until January 24

when Spatafore forwarded the statements made to Teton County Commissioners. 278

275F

276F

277F

Assuming arguendo that the Board erred in affirming the ALJ’s finding that

Spatafore’s November 9, 2017 email was not protected under the ACA, the ALJ’s

finding that the email was not a contributing factor in the TCWP Board’s eviction

decision is also supported by substantial evidence. The ALJ determined:

In fact, the ALJ analyzed contributing factor from the perspective that all of

Complainants’ activities were protected under the ACA and concluded that Complainants

failed to prove that any alleged protected activity contributed to an adverse action suffered

by Complainants. D. & O. at 111-24.

274

275

Id. at 111.

276

Id. at 116.

277

Id. at 124.

278

Id. at 46.

(1) the TCWP Board did not consider the contents of the email before making its

decision to evict; (2) Complainants presented no evidence to show that TCWP Board

perceived Spatafore as having engaged in ACA protected activity or was about to do

so; (3) Complainants did not establish that Edmiston was a cat’s paw 279 who

influenced the TCWP Board’s decision; and (4) the TCWP Board’s reasons for

eviction were not shown to be pretext for retaliation for ACA protected activity. 280

The ALJ held that decision to evict Spatafore was based on general legal concerns

unrelated to the ACA and Spatafore’s poor performance evaluation from the 2017

season. 281 As the ALJ acknowledged, the record reflects that the only matter the

TCWP Board discussed at the November 10 meeting concerning health care benefits

was knowledge that Spatafore contacted Teton County to ask about insurance

eligibility criteria. 282 Accordingly, the Board affirms the ALJ’s finding as it is

supported by substantial evidence.

278F

279F

280F

281F

iii.

Spatafore’s Denial of Reemployment

The ALJ concluded that Spatafore’s investigation into the ACA (his actions

from November 2017 to January 2018) was not a contributing factor in

Respondent’s decision not to send him an invitation to work for the 2018 season. 283

The ALJ’s contributing factor finding is supported by substantial evidence. A review

of the record shows that TCWP’s supervisors met on January 18, 2018, to discuss

crew needs for the 2018 season, and finalize the list of who would be invited

back. 284 To the extent that there was a discussion of whether to invite Spatafore

back, the group assumed that inviting him back was not on the table following his

eviction in November 2017, his poor attitude, and negative performance

evaluation. 285 Furthermore, there is no evidence that TCWP’s supervisory team

282F

283F

284F

Cat’s paw liability is legal doctrine that holds an employer liable for discriminatory

or retaliatory actions when a decision-maker relies on the biased recommendation or

influence of a lower-level employee who harbors unlawful motives. See Gourneau v. BNSF

Ry. Co., ARB No. 2023-0034, ALJ No. 2021-FRS-00018, slip op. at 21 (ARB May 21, 2025).

279

280

D. & O. at 112-16.

281

Id. at 116.

282

Id. at 115.

283

Id. at 118.

284

Id. at 45, 116-17.

Id. Edmiston testified “we were in agreement that given the performance evaluation

and concerns from the fall in his performance and his attitude that [rehire] wasn’t on the

table.” Id. at 45. Girard stated that “her memory was that it was assumed [Spatafore]

would not be invited back after having to leave the TCWP housing, and because of prior

informal group discussions about his attitude and performance.” Id. Rives stated that he

“did not recall specifically talking about Spatafore . . . [but had] the general sense that

285

discussed or considered Spatafore’s information gathering as part of their

calculation on who to send the invitations to. 286

285F

Complainants argue on appeal that direct evidence and animus concerning

Spatafore as a litigation risk establish causation, and close timing is a strong

indicator of causation. 287 We disagree. The record reflects that Spatafore had a

negative performance review before the TCWP Board’s concerns that he might

fabricate litigation against TCWP. The TCWP Board’s eviction decision in

November 2017 was, in effect, confirmation that Spatafore was not going to be

offered work for the 2018 season and/or assuming there was a remote possibility he

would be invited back, there was no evidence that Respondent considered his ACA

investigation when declining to invite him back. 288 Spatafore also acknowledged

that it was understood at the time that he would not be invited back for the next

season. 289 We affirm the ALJ’s finding as it is supported by substantial evidence.

286F

287F

288F

B. The ALJ’s Contributing Factor Analysis Concerning Iwaseczko

Above, we affirm the ALJ’s finding that Iwaseczko did not engage in

protected activity. Assuming that Iwaseczko had in fact engaged in protected

activity, the ALJ considered Iwaseczko’s separation agreement offer and

employment termination and determined that Respondent’s decision to offer the

separation agreement and then terminate her employment was not influenced by

any alleged ACA protected activity, but instead, because Iwaseczko violated her

position of trust at TCWP. 290

289F

The ALJ’s finding is supported by substantial evidence. As discussed above,

Iwaseczko was in a position of trust and breached that trust by copying and

forwarding emails to other individuals—to further those individuals’ objectives

against TCWP. These emails were acquired based on her position within the

company. TCWP learned of the violation and took action based on that violation of

company policy. We agree with the ALJ that whether company policy was actually

violated is not necessarily relevant if TCWP operated under the belief that the

policy was violated. 291 There is no dispute that the meetings on December 4 and 7

290F

Spatafore was not going to be invited back because of his negative performance evaluation.”

Id.

286

Id.

287

Complainants’ Br. at 43-46.

288

D. & O. at 118.

289

Id. at 43 (citing Tr. 303).

290

See id. at 124.

See Neely v. The Boeing Co., ARB No. 2020-0071, ALJ No. 2018-AIR-00019, slip op.

at 12 n.76 (ARB May 19, 2022) (noting that it is neither the role of the ALJ nor the Board to

291

involved the investigation and termination of Iwaseczko for violating company

policy. The ALJ summarized the TCWP Board’s evaluation of the evidence when

deciding to terminate Iwaseczko. 292 The Board “was concerned about Iwaseczko’s

sharing of personnel information, her honesty and integrity, and her apparent lack

of remorse. Of paramount concern to the Board was the loss of trust in Iwaseczko.

The Board voted unanimously to offer Iwaseczko a separation agreement.” 293

291F

292F

8. The ALJ Did Not Abuse His Discretion in Ruling on Complainants’

Motion to Compel

Before the ALJ, on April 29, 2019, Complainants filed a motion to compel

seeking: (1) the name of the attorney who disclosed to Mateosky that Spatafore had

applied for legal representation for his claims against Respondent; and (2)

electronically stored information (ESI) of the TCWP Board members after December

31, 2017. On June 13, 2019, the ALJ denied Complainants’ motion. 294

293F

Complainants contend that the ALJ’s decision to deny Complainants’ motion

was erroneous because: (1) knowing the name of the unethical lawyer who disclosed

confidential information could have led to highly relevant information about the

causal link between Spatafore’s investigation and adverse actions; 295

(2) Complainants would have a right to the unidentified attorney’s records or the

unidentified attorney could have been subpoenaed to provide relevant evidence

about Spatafore’s claims, Mateosky’s reactions, or Mateosky’s subsequent actions as

a TCWP Board member; 296 (3) the ESI is “a natural place to look for evidence of”

the TCWP Board’s animus against Complainants’ OSHA complaints, which can be

relevant to prove motive and causation. 297

294F

295F

296F

act as a super-personnel department that examines an entity’s business decisions)

(citations omitted). Whether there was an actual violation of policy, is not dispositive to the

analysis. See Complainants’ Br. at 47-48. Rather, the statutory question under § 1558 is

whether protected activity was a contributing factor in the adverse employment action.

29 C.F.R. § 1984.109(a).

292

D. & O. at 120-21.

293

Id. at 121.

Order Denying Complainants’ Motion for Partial Summary Judgment and

Respondent’s Motion for Summary Judgment at 3 n.2.

294

295

Complainants’ Br. at 53.

296

Id. at 54.

297

Id.

As noted above, the Board reviews procedural and evidentiary rulings under

an abuse of discretion standard. 298 “ALJs have wide discretion to set or limit the

scope of discovery and will be reversed only when such evidentiary and discovery

rulings are arbitrary or an abuse of discretion.” 299 To meet this standard,

complainants are required at a minimum to identify “with some precision” the

information they should have received and how that information would have altered

the evidence submitted at hearing. 300 ‘“Mere speculation’ is insufficient.” 301

297F

298F

299F

300F

Complainants have not established that the ALJ abused his discretion in

denying their motion to compel. First, it is difficult to envision that the production

of the attorney’s name would have had any impact on the result in this case.

Second, oddly enough, Complainants request assistance to identify an attorney who

allegedly represented or met with Spatafore.

Second, Complainants should be aware of which attorneys Spatafore met

with for representation in this matter or any other matters against TCWP.

If Complainants truly thought that this attorney had information that would

produce probative information to assist in their claims, they could have contacted

the attorneys Spatafore met with and/or deposed them on their own accord rather

than requesting Mateosky to disclose this information.

Third, Complainants’ argument that the ESI after December 31, 2017, is “a

natural place to look for evidence of” the TCWP Board’s animus against

Complainants’ OSHA complaints is irrelevant to their claims. Complainants filed

their OSHA complaints on January 23, 2018, and March 22, 2018, respectively.

Neither Complainant suffered an adverse employment action after they filed their

respective OSHA complaints. Although Complainants insist that subsequent events

may be relevant and admissible, as a matter of logic, any animus developed by the

TCWP Board in response to Complainants’ filing their respective OSHA complaints

would not be a contributing factor in the adverse employment actions that occurred

months prior. Moreover, such evidence of the TCWP Board’s animus against

Complainants’ OSHA complaints would not prove that the TCWP Board previously

held any animus towards Complainants and at the time of the alleged

discrimination and retaliation.

For these reasons, we conclude that the ALJ did not abuse his discretion in

denying Complainants’ motion.

May, ARB No. 2022-0015, slip op. at 6 (citing Furlong-Newberry, ARB No. 20220017, slip op. at 22).

298

299

Id.; see 29 C.F.R. § 18.51(b)(4).

300

Furlong-Newberry, ARB No. 2022-0017, slip op. at 22 (citation omitted).

301

Id. (citation omitted).

CONCLUSION 302

301F

For the above stated reasons, we AFFIRM the ALJ’s D. & O. and DENY

Complainants’ petition.

SO ORDERED.

THOMAS H. BURRELL

Administrative Appeals Judge

RANDEL K. JOHNSON

Chief Administrative Appeals Judge

THOMPSON, Administrative Appeals Judge, concurring:

I concur with the majority’s decision affirming the ALJ’s D. & O. and denying

Complainants’ petition. I write separately to highlight Spatafore’s September 28,

2017 negative performance evaluation. While I agree with the majority (and the

ALJ’s conclusion) that there was no causal link to any alleged ACA protected

activity, I find the negative performance evaluation troubling.

As mentioned in the Background Section, from 2008 through the mid-season

of 2017, Spatafore “always received overall good performance evaluations, with

scores ranging from average to—most often—excellent and exemplary.” 303 Although

the 2017 mid-season evaluation recommended that Spatafore find ways to assist or

teach other employees, it did not allege any other problems with Spatafore’s work

performance, including starting the season late, 304 which was then later used by

302F

303F

In any appeal of this Decision and Order that may be filed, we note that the

appropriately named party is the Secretary, Department of Labor (not the Administrative

Review Board).

302

303

Supra note 25.

304

See JX-54

Respondent as an explanation for lower ratings on the end-season evaluation. 305

Respondent was aware of Spatafore’s late season start at the time of the mid-season

evaluation, yet chose not to mention it.

304F

The other negative scores and notes provided in the September 28, 2017

evaluation are equally concerning when taken in context of Spatafore’s actions

between March 2017-September 2017. 306 A summary of these actions include: (1) in

March 2017, Spatafore expressed concerns that his job description did not fit his

duties and wanted to be reclassified as a part-time, year-round employee; 307 (2) in

April 2017, Spatafore expressed concerns about hiring discrimination at TCWP and

provided Girard with a written outline of his grievances, which included hiring

practices, inadequate notice and time to prepare for his 2017 applicator license, the

changes to the housing policy, 2016 promotions, and discipline for the 2012 group

305F

306F

JX-12 at 1. Spatafore received “Unacceptable” ratings for “Attendance & fit for duty”

and “Appropriate method of control.” The “Notes” section under these scores states the

following:

305

Due to a later than normal start you put us in a bind at the start

of the season. And due to late notices for time off, as well as the

timing of the leave dates, the Refuge was not completed by the

typical date. Also your refusal to increase your rate of telar is

noted in the method of control.

Id.

Id. at 3. Spatafore received an “Inadequate” rating for “complete regular tasks

without being asked” and an “Unacceptable” rating for “Maintains a positive attitude.” The

Notes” section under these scores states the following:

306

Your effort and attitude towards the Job seems to deteriorate

once you leave the NER. We expect the same attitude regardless

of the project you are on. . . . Your continued complaints about

the housing situation as well as your job duties were reflected in

your attitude. This is also continued after the district addressed

your complaints and discussed the reasoning with you. These

complaints included: Applicator license: Notification is

responsibility of the Dept. of Ag. not the district. Study time for

test: Time was given day of exam. After 10 years it is expected

extra time is not needed. No request for extra time was

requested. . . . Complaint regarding 2016 promotions; All

promotions were done consistent with policy.

Id.

307

D. & O. at 16-17.

photograph; 308 (3) in September 2017, Spatafore requested to review his personnel

file due to concerns from the 2012 group photograph incident; 309 (4) in September

2017, Spatafore sent a series of emails to Edmiston outlining negative experiences

at TCWP and alleging discriminatory hiring practices at TCWP; 310 and (5) in

September 2017, Spatafore wrote to the TCWP Board advising that he raised

concerns about TCWP’s hiring practices to his supervisors and asked the TCWP

Board to review its hiring practices. 311 While these employment concerns predate

any alleged ACA violations, Spatafore was attempting to voice legitimate

employment and discrimination concerns to Respondent, and it appears that

Respondent, in turn, retaliated against Spatafore for voicing these concerns.

However, the Board’s jurisdiction is limited to the statutes assigned and the

concerns addressed above do not fall within an ACA claim or our jurisdiction. 312

307F

308F

309F

310F

311F

Thus, I concur with the majority’s decision affirming the ALJ’s D. & O. and

denying Complainants’ petition.

ANGELA W. THOMPSON

Administrative Appeals Judge

308

Id. at 19.

309

Id.

310

Id. at 20-21.

311

Id. at 23.

312

Supra note 139; see supra note 221.

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.