Administrative Review Board Decisions - August 2022

Administrative Review Board Decisions

The following case summaries were created by Administrative Review Board staff.

Trivedi v. General Electric, ARB No. 2022-0026, ALJ No. 2022-SOX-00005 (ARB Aug. 24, 2022) (Decision and Order)

TIMELINESS; COMPLAINANT'S CONTENTION THAT OSHA INAPPROPRIATELY CLOSED HER COMPLAINT NOT SUPPORTED BY EVIDENCE; COMPLAINANT DID NOT ESTABLISH GROUNDS FOR EQUITABLE TOLLING

In Trivedi v. General Electric, ARB No. 2022-0026, ALJ No. 2022-SOX-00005 (ARB Aug. 24, 2022), the ARB affirmed the ALJ's dismissal of Complainant's SOX complaint as untimely filed. Complainant contended that OSHA inappropriately closed her complaint in 2014. However, the ARB determined that Complainant presented no evidence in support of this claim. The ARB further determined that Complainant acknowledged receiving the 2014 OSHA administrative closure letter.

Complainant also contended that equitable tolling principles apply. Specifically, she asserted that she raised the precise statutory claim in the wrong forum when she contacted U.S. Citizenship and Immigration Services and filed a claim with the Federal Drug Administration. However, the ARB determined that Complainant did not raise her precise statutory claim in either forum.

Complainant next contended that extraordinary circumstances prevented her from timely filing her SOX complaint. Specifically, she contended that she was not aware that she could file an OSHA claim until after the limitations period expired and that mediation and arbitration delayed her from timely filing her complaint. However, the ARB did not find either contention compelling.

Complainant further contended that the continuing violations doctrine applied. However, the ARB determined that Complainant did not allege the type of discriminatory activity on Respondents' part that would support application of the continuing violations doctrine because the termination of her employment was a discrete act. Complainant further contended that the continuing violations doctrine applied because OSHA and OALJ mismanaged her claim. However, the ARB determined that neither OSHA nor OALJ mismanaged her claim, and that, even if such mismanagement was found, the continuing violations doctrine applies to acts by employers, not court claims.

Lastly, the ARB determined that Complainant did not demonstrate that she exercised due diligence to preserve her legal rights as she waited more than a year to file her first OSHA claim and then waited more than seven years to file the present action.

Shah v. Albert Fried & Co., ARB No. 2020-0063, ALJ No. 2019-SOX-00015 (ARB Aug. 26, 2022) (Decision and Order)

MOTION FOR SUMMARY DECISION; NO GENUINE ISSUE OF MATERIAL FACT AS TO RESPONDENTS' AFFIRMATIVE DEFENSE

In Shah v. Albert Fried & Co., ARB No. 2020-0063, ALJ No. 2019-SOX-00015 (ARB Aug, 26, 2022), the ARB affirmed the ALJ's grant of summary decision. Specifically, the Board affirmed the ALJ's affirmative defense ruling because: (1) Complainant did not contest the affirmative defense ruling on appeal with clear objections, arguments, and specific supporting evidence; and (2) Respondents demonstrated the absence of a genuine issue of material fact by presenting sufficient evidence to show that Respondents would have terminated Complainant's employment in the absence of Complainant's protected activity, and Complainant failed to present evidence that established a genuine issue of material fact.