USDOL/OALJ Reporter: ARB Decision Caselist - September 2012

SETTLEMENT; AUTHORITY OF ALJ AND ARB TO REVIEW FINAL ORDER OF OSHA APPROVING A SETTLEMENT UNDER THE "SPECIAL CIRCUMSTANCES" REGULATION AT 29 C.F.R. § 1980.115 WHERE THE VALIDITY OF THE OSHA REVIEW PROCESS WAS IN QUESTION

SETTLEMENT; QUESTION OF RESCINDING AGREEMENT BASED ON PURPORTED PRESSURE ON COMPLAINANT BY HER OWN ATTORNEYS IS GOVERNED BY MACKTAL RATHER THAN STATE LAW

ARB'S REVIEW AUTHORITY DOES NOT INCLUDE JURISDICTION TO RULE ON VALIDITY OF DULY PROMULGATED REGULATION

In Gonzales v. J.C. Penney Corp., Inc. , ARB No. 10-148, ALJ No. 2010-SOX-45 (ARB Sept. 28, 2012), the Complainant and the Respondent entitled into a settlement of the Complainant's SOX complaint, which had been approved by OSHA. The Complainant sought a hearing before an ALJ seeking to rescind the agreement. The ALJ granted summary decision in favor the Respondent. On appeal, the ARB determined that although OSHA's approval of the settlement had become the final order of the Secretary pursuant to 29 C.F.R. § 1980.111(e), OSHA had approved a version of the agreement with the monetary terms redacted, thereby raising concerns about OSHA's approval process "that could invalidate the finality of the Secretary's order." USDOL/OALJ Reporter at 8. The ARB noted that the SOX regulation at 29 C.F.R. § 1980.115 permits the ALJ and the ARB to waive any rules where special circumstances warrant, and that such special circumstances were warranted to permit the ALJ to review an otherwise final order approving a settlement agreement because of OSHA's purported errors in its approval process. The ARB, however, affirmed the ALJ's decision in favor of the Respondent.

First, although OSHA should not have approved an agreement that redacted the monetary terms, the ALJ reviewed the unredacted agreement and determined that the terms were fair, adequate and reasonable. Second, the ARB found that the facts that OSHA failed to contact her after she signed the agreement and that OSHA contacted her attorneys after she had instructed OSHA not to do so, were not grounds warranting withdrawal of the agency's approval of the settlement agreement. Third, the ARB declined to rule on the Complainant's argument that the Dodd-Frank Act precludes settlement of SOX complaints (because they would constitute a waiver of rights under the Act) because the SOX regulations expressly provide for settlement of SOX cases, and the delegation of authority to the ARB expressly provides that the ARB does not have jurisdiction to pass on the validity of duly promulgated regulations. Fourth, the ARB did not find convincing the Complainant's argument that approval of the settlement was in error because the settlement precluded her from being rehired. The ARB, however, agreed with the ALJ's finding that SOX does not require that a settlement include a provision for reinstatement or a provision for altering a personnel record to make the complainant eligible for rehire.

Finally, the ARB rejected the Complainant's argument that the settlement should be rescinded due to a dispute between her and her attorneys. Applying the reasoning of Macktal v. Brown & Root, Inc. , 923 F.2d 1150 (5th Cir. 1991), which places the risk of the complainant's attorney's alleged misconduct in relation to attorney-client relationship on the complainant rather than the respondent, the ARB found that the ALJ was well within in his discretion in refusing the Complainant's request to void the settlement agreement. The ARB agreed with the ALJ that the Complainant could have obtained new counsel or have sought advice from the state bar, and that the Complainant had seven weeks in which to obtain legal advice and in which any adverse effects from her attorneys' purported pressure tactics would have subsided.

In a footnote, the ARB rejected the ALJ's referral to state law in determining whether the settlement should be rescinded or voided, finding that the case is governed instead by the Macktal decision.

One member of the ARB concurred in the result, but wrote separately to voice concern about whether the ALJ or the ARB had the authority to review OSHA's final order approving the settlement agreement. Even if the ALJ had determined that OSHA had not actually approved the agreement because of the redactions, this member noted that the ALJ had reviewed the agreement and found it to be fair, adequate and reasonable, and therefore the ARB's authority would be limited on appeal to reviewing the ALJ's procedural decisions and would not include review of the substantive decision of whether the agreement was fair. The concurring member opined that neither the ALJ nor the ARB have the authority to act like a judicial court and consider whether the settlement contract could be rescinded through equity.

SETTLEMENT; MONETARY TERMS OF A SOX SETTLEMENT ARE A MATTER OF PUBLIC INTEREST; ERROR TO REVIEW REDACTED VERSION OF SETTLEMENT AGREEMENT

In Gonzales v. J.C. Penney Corp., Inc. , ARB No. 10-148, ALJ No. 2010-SOX-45 (ARB Sept. 28, 2012), the ARB indicated that OSHA erred when it approved the settlement agreement in a SOX case where the Respondent had redacted the monetary terms. The ARB wrote:

   It is undisputed that OSHA reviewed a redacted copy of the Gonzales/J.C. Penney settlement agreement that excluded the payout amount that Gonzales agreed to in exchange for releasing her SOX rights pertaining to her pending complaint. OSHA erred in approving a settlement agreement that redacted the monetary settlement amount. See Fuchko v. Georgia Power Co. , Nos. 1989-ERA-009, 1989 ERA-010 (Sec'y June 13, 1994) (Secretary refuses to approve a redacted settlement agreement because exact amount of money paid is a "matter of public concern."). "The particular terms of the agreement, such as the amount of money to be received by the Complainant, affect not only the individual whistleblower but impact the public interest as well." Id. "Where such terms are not fair, adequate and reasonable, other employees may be discouraged from reporting safety violations." Id , quoting Plumlee v. Alyeska Pipeline Svc. Co. , No. 1992-TSC-007, slip op. at 5 (Sec'y Aug. 6, 1993).

USDOL/OALJ Reporter at 9 (footnote omitted).

In a case arising under the whistleblower provision of the STAA, the ARB found that substantial evidence supported the ALJ's finding that protected activity was not a contributing factor in the decision to terminate the Complainant's employment.

SUMMARY DECISION; WHERE RESPONDENT SUBMITTED ADMISSIBLE EVIDENCE IN SUPPORT OF A MOTION FOR SUMMARY DECISION AND COMPLAINANT, DESPITE BEING NOTIFIED OF THE SPECIFIC REQUIREMENTS FOR RESPONDING TO SUCH A MOTION, FAILED TO SUBMIT ANY AFFIDAVITS OR EVIDENCE IN OPPOSITION, THE ARB AFFIRMED THE GRANT OF SUMMARY DECISION ON THE ISSUES OF PROTECTED ACTIVITY, EMPLOYER'S KNOWLEDGE OF THE PROTECTED ACTIVITY, AND CONTRIBUTING CAUSE

In Alexander v. Atlas Air, Inc. , ARB No. 12-030, ALJ No. 2011-AIR-3 (ARB Sept. 27, 2012), following extensive discovery the Respondent filed a motion for summary decision supported by multiple affidavits and deposition testimony to support its argument that the Complainant had not engaged in protected activity, and even if he had, the Respondent had no knowledge of the Complainant's activities and therefore there was no causal relationship between those activities and any adverse personnel action. The ARB noted that the ALJ had, consistent with federal practice, notified the pro se Complainant of the specific requirements for opposing the Respondent's motion. The ARB noted that "[w]here the moving party presents admissible evidence in support of a motion for summary decision, as occurred in this case, the nonmoving party must submit admissible evidence to raise any genuine issue of material fact and, again, cannot rely on the allegations of his complaint alone." USDOL/OALJ Reporter at 5 (footnote omitted). The Complainant, however, failed to submit any affidavits or evidence in opposition to the Respondent's motion. Thus, notwithstanding that the evidence of record was viewed in the light most favorable to the Complainant for purposes of ruling on the motion for summary decision, the ARB found that the evidence of record neither supported the Complainant's contention that he engaged in AIR 21 protected activity nor created issues of material fact that would warrant denying the Respondent's motion for summary decision. Similarly, the evidence of record did not support the contention that the Respondent was aware of the Complainant's his concerns or create a genuine issue of material fact with respect to such awareness; nor did the evidence of record support a finding that those concerns were a contributing factor in the purported employment action or create a genuine issue of material fact with respect to the matter of causation.

[Nuclear and Environmental Digest VII C 1]
SUMMARY DECISION; HOW AN ALJ SHOULD DETERMINE A MOTION FOR SUMMARY DECISION

SUMMARY DECISION; CAUSATION, AND AFFIRMATIVE DEFENSE OF "CLEAR AND CONVINCING," ARE POOR CANDIDATES FOR SUMMARY DECISION

SUMMARY DECISION; TEMPORAL PROXIMITY MUST BE EVALUATED BASED ON THE RECORD AS A WHOLE

Overview on how to determine a motion for summary decision

In Franchini v. Argonne National Laboratory , ARB No. 11-006, ALJ No. 2009-ERA-14 (ARB Sept. 26, 2012), the ARB explained in detail how an ALJ should determine a motion for summary decision:

   Pursuant to 29 C.F.R. § 18.40(d), an ALJ may "enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision." 29 C.F.R. § 18.40(d) (2012). To determine whether there is any genuine issue of a material fact, the ALJ must examine the elements of the complainant's claims to sift the material facts from the immaterial.6 Once materiality is determined, the ALJ next must examine the arguments and evidence the parties submitted to determine if there is a genuine dispute as to the material facts. Drawing from the federal law pertaining to summary judgment motions in federal court, we adopt the principle that a "genuine issue" exists if a fair-minded fact-finder (the ALJ in whistleblower cases) could rule for the nonmoving party after hearing all the evidence, recognizing that in hearings testimony is tested by cross-examination and amplified by exhibits and presumably more context. When reviewing the evidence the parties submitted, the ALJ must view it in the light most favorable to the non-moving party, the complainant in this case. The moving party must come forward with an initial showing that it is entitled to summary decision. 29 C.F.R. § 18.40(d).

   Though not very clearly, 29 C.F.R. § 18.40 appears to incorporate two well-recognized methods by which a respondent can demonstrate the lack of a genuine issue of material fact. One method is to assert that the complainant lacks evidence to support an essential element of his case. In such a case, the complainant must specifically identify facts that, if true, could meet his burden of proof at an evidentiary hearing on the merits. Another method of testing the pleadings is for the respondent to attach affidavits or other documents and evidence, which purport to state the undisputed facts and challenge the complainant to produce admissible, contrary evidence that creates a genuine issue of fact. See 29 C.F.R. § 18.40(c). In this latter method, the opposing party must do more than identify specific facts but must go beyond asserting facts and attach admissible contradictory evidence to raise a genuine issue of material fact. If the opposing party fails to attach admissible evidence, then the judge could find that there is no genuine issue of material fact and proceed to determine whether the moving party is entitled to judgment as a matter of law. Stated more simply, the complainant must identify the specific facts and/or evidence he will bring to trial and such facts and evidence, if believed at trial, must be enough to allow for a ruling in his favor on the issue in question. The burden of producing evidence "is not onerous and should preclude [an evidentiary hearing] only where the record is devoid of evidence that could reasonably be construed to support the [complainant's] claim." White v. Baxter Healthcare Corp. , 533 F.3d 381, 400 (6th Cir. 2008); Anderson v. Liberty Lobby, Inc. , 477 U.S. at 252.

   In ruling on a motion for summary decision, neither the ALJ nor the Board weighs the evidence or determines the truth of the matters asserted. The Board "construe[s] complaints and papers filed by pro se complainants �liberally in deference to their lack of training in the law' and with a degree of adjudicative latitude." Hyman v. KD Res. L.L.C., ARB No. 09-076, ALJ No. 2009-SOX-020, slip op. at 8 (ARB Mar. 31, 2010) (citations omitted). Denying summary decision because there is a genuine issue of material fact simply means that an evidentiary hearing is required to resolve some factual questions; it is not an assessment on the merits of any particular claim or defense.

USDOL/OALJ Reporter at 6-7 (footnotes omitted).

Summary decision and the issue of causation

In Franchini , the ALJ granted summary decision on the issue of causation, essentially finding that the Complainant's alleged insubordination was an intervening event between the protected activity and the termination of employment, and thus protected activity was not a contributing factor. The ALJ summarily found that temporal proximity of five months did not establish a prima facie inference of causation. The ARB found that the ALJ made errors in deciding the causation issue on summary decision. The ARB explained that causation is an especially poor candidate for summary decision:

    As often noted in the United States Court of Appeals for the Seventh Circuit, summary decisions are difficult in "employment discrimination cases, where intent and credibility are crucial issues." Obviously, the issue of causation in discrimination cases involves questions of intent and motivation when the complainant argues that the employer's asserted reasons were not the real reasons for its actions. Summary decision on the issue of causation is even more difficult in ERA whistleblower cases where Congress made it "easier for whistleblowers to prevail in their discrimination suits," requiring only that the complainant prove that his protected activity was "a contributory factor" rather than the more demanding causation standards like "motivating factor," "substantial factor" or "but for" (determinative factor) causation. Trimmer v. U.S. Dep't of Labor , 174 F.3d 1098, 1101 (10th Cir. 1999). Contributory factor means any factor which, alone or in connection with other factors, "tends to affect in any way the outcome of the [employment] decision."16 Even where a respondent asserts legitimate, nondiscriminatory reasons for its actions, a complainant can create a genuine issue of fact by pointing to specific facts or evidence that, if believed, could (1) discredit the respondent's reasons or (2) show that the protected activity was also a contributing factor even if the respondent's reasons are true.

   Complainants may rely on circumstantial evidence to prove that protected activity contributed to the unfavorable employment action in question. For example, in some circumstances, evidence of inconsistencies in the respondent's reasons could present sufficient circumstantial evidence for the ALJ to reject the employer's asserted reasons and, if sufficiently persuasive, accept the complainant's claim that protected activity was a contributory factor. Other circumstantial evidence may include evidence about motive, bias, work pressures, past and current relationships of the involved parties, animus, temporal proximity, pretext, and material changes in employer practices, among other types of evidence. Where circumstantial evidence supports a reasonable inference that protected activity could have been a factor, the complainant's whistleblower claim must proceed to an evidentiary hearing unless the employer can establish an affirmative defense through a properly supported motion for summary decision. In a motion for summary decision, an employer cannot nullify the complainant's evidence of contributory factor by simply presenting a different independent and lawful reason for the unfavorable employment action. The ALJ must be convinced through undisputed facts and as a matter of law that the protected activity was not a factor.

USDOL/OALJ Reporter at 9-10 (footnotes omitted).

� Summary decision and the issue of temporal proximity

The ARB then found that the ALJ erred in summarily determining that there was insufficient temporal proximity of the protected activity to the adverse action. The ARB wrote:

Temporal proximity is an important part of a case based on circumstantial evidence, often the "most persuasive factor." Beliveau v. U.S. Dep't of Labor , 170 F.3d 83, 87 (1st Cir. 1999) (environmental whistleblower case). Determining what, if any, logical inference may be drawn from the temporal relationship between the protected activity and the unfavorable employment action is not a simple and exact science but requires a "fact-intensive" analysis. It involves more than determining the length of the temporal gap and comparing it to other cases. Previous case law can be used as a guideline to determine some general parameters of strong and weak temporal relationships, but context matters. Before granting summary decision on the issue of causation, the ALJ must evaluate the temporal proximity evidence presented by the complainant on the record as a whole, including the nature of the protected activity and the evolution of the unfavorable personnel action.

USDOL/OALJ Reporter at 10-11 (footnotes omitted). The ARB found that the ALJ committed a second reversible error because the Complainant had proffered evidence that, if accepted as credible at a hearing, would have established that the temporal gap to have been less than four months, which the ARB found to be a material miscalculation. Finally, the ARB found that the ALJ committed reversible error by finding that the Complainant's alleged insubordination was an intervening event that severed any causal link between the protected activity and the firing, the record not containing undisputed evidence that the Complainant had violated a workplace policy other than a general claim of "insubordination." The Complainant had not turned over surreptitious audio recording made at the workplace as demanded by the Respondent. But the ARB observed that it could not assume without evidence in the record that the Respondent had an undisputed right to make such a directive and that the Complainant had to comply. The ALJ had also stated that the recordings violated state law, but cited no state law nor explained how evidence of record showed such a violation. Finally, and most importantly, the ARB noted that even if the Complainant's refusal to turn over his tapes was not pretext, this conclusion does not rule out protected activity as a contributing factor in the termination of his employment.

Summary decision and the "clear and convincing evidence" affirmative defense

The Respondent made an alternative argument that it was entitled to summary decision on its affirmative defense of "clear and convincing" evidence that it would have fired the Complainant in the absence of the protected activity. The ARB declined to address such a fact-intensive issue that the ALJ had not addressed. The ARB noted that the Respondent

� carries the burden of proof on this affirmative defense and the burden is high. 42 U.S.C.A. § 5851(b)(3)(D). Like causation analysis for the plaintiff's burden of proof, [the Respondent's] affirmative defense presents an equally challenging issue to resolve by summary decision. Such analysis requires us to determine, on the record as a whole , how clear and convincing [the Respondent's] lawful reasons were for terminating [the Complainant's] employment. In analyzing the affirmative defense, we are not required to judge the rational basis of [the Respondent's] employment policies and decisions but we must assess whether they are so powerful and clear that termination would have occurred apart from the protected activity.

USDOL/OALJ Reporter at 13.

MOTION TO REOPEN ADMINISTRATIVE SOX COMPLAINT THAT HAD BEEN DISMISSED WHEN THE COMPLAINANT PROVIDED NOTICE THAT HE WOULD PROCEED IN FEDERAL DISTRICT COURT; MOTION CONSIDERED UNDER "EXTRAORDINARY CIRCUMSTANCES" STANDARD APPLIED TO FRCP 60(b)(6) MOTIONS

In Pittman v. Diagnostic Products Corp. , ARB No. 12-103, ALJ No. 2006-SOX-53 (ARB Sept. 21, 2012), the ARB issued notice that it did not accept the Complainant's petition for review of the ALJ's order denying a motion for relief under rule 60(b)(6). In Pittman v. Diagnostic Products Corp. , 2006-SOX-53 (ALJ Aug. 9, 2012), the ALJ had, in October 2010, dismissed the SOX complaint when the Complainant elected to pursue the matter before the district court. In July 2012, the Complainant moved to vacate the order of dismissal and reinstate his claim, arguing that although the statute allows him to bring his claim in the district court, he had not done so, and thus the Department of Labor still had jurisdiction. The ALJ found that he had ancillary jurisdiction to consider the Complainant's motion for relief, but that the Complainant failed to present sufficient facts to justify the relief sought, applying the "extraordinary circumstances" applied to FRCP 60(b)(6) motions. The Complainant offered no explanation for why he had failed to pursue the matter in district court.

The ARB affirmed the ALJ's findings that the Complainant's STAA complaint was not timely filed, and that equitable tolling was not warranted.

In a case arising under the whistleblower provisions of the CAA, CERCLA and TSCA, the ARB found that substantial evidence supported the ALJ's conclusion that the Complainant's alleged protected activity was not a motivating factor in the Respondent's decision to terminate the Complainant's employment.

TIMELINESS OF PETITION FOR ARB REVIEW; ILL HEALTH MAY CONSTITUTE GROUNDS FOR EQUITABLE TOLLING, BUT BURDEN IS ON MOVANT TO PROVE THAT THE CONDITION PREVENTED THE FILING OF A TIMELY APPEAL

In Wallum v. Bell Helicopter Textron, Inc. , ARB No. 12-110, ALJ No. 2009-AIR-20 (ARB Sept. 19, 2012), the Complainant (who had been substituted as the Complainant after her husband's death) filed a motion seeking to reinstatement of a complaint that been dismissed by the ALJ for failure to respond to orders to show cause, and had not been timely appealed to the ARB. The ARB noted that the limitations period for requesting ARB review was not jurisdictional and may be tolled for equitable reasons. The Complainant relied on 29 C.F.R. § 1979.114, which provides for waiver of rules under special circumstances, to ask that the ARB take into consideration that her husband had been hospitalized with declining health during the timeframe of the ALJ's orders to show cause and the ALJ's order of dismissal. The ARB noted that a medical condition that prevents a complainant from timely pursuing his or her legal rights has been held to be an "extraordinary" circumstance justifying equitable tolling, but found that the Complainant had failed to carry her burden of proving that her husband's ill health or death (six months after the petition for review was due) prevented the filing of a timely appeal.

[Nuclear and Environmental Whistleblower Digest III C 2]
TIMELINESS OF CERCLA COMPLAINT; COMPLAINT WAS UNTIMELY EVEN UNDER A LIBERAL CONSTRUCTION THAT BLACKLISTING HAD OCCURRED THROUGHOUT MOST RECENT EMPLOYMENT ENGAGEMENT

In Droog v. Ingersoll-Rand Hussman , ARB No. 11-075, ALJ No. 2011-CER-1 (ARB Sept. 13, 2012), the Complainant was discharged in 2005 by the Respondent. On March 2, 2011, the Complainant filed a CERCLA whistleblower complaint with OSHA alleging blacklisting. The ARB, liberally construing the Complainant's brief to argue that the Complainant had a valid blacklisting claim that took place on a continuing basis up through and including his last employment engagement, found that the last employment terminated on December 31, 2010, and that under the CERCLA 30 day limitations period the last date the CERCLA claim could have been timely filed was January 31, 2011. Since the Complainant failed to do so, and because the record was devoid of evidence that would justify invoking equitable tolling, the ARB affirmed the ALJ's dismissal of the complaint as untimely.

[STAA Digest II Q]
TIMELINESS OF PETITION FOR ARB REVIEW; BEING OUT OF THE U.S. WHEN THE ALJ'S DECISION WAS DELIVERED IS NOT, STANDING ALONE, SUFFICIENT TO ESTABLISH GROUNDS FOR EQUITABLE TOLLING

In Carvajal v. Stevens Transport, Inc. , ARB No. 12-083, ALJ No. 2012-STA-19 (ARB Sept. 12, 2012), the Complainant argued that he was out the country when the ALJ's decision was delivered to his U.S. residence, and that the first thing he did upon returning to the U.S. was to request the Board to accept his untimely petition for ARB review. He also stated that his mother had become ill in Columbia and needed help bringing her to to the U.S. for treatment. The Complainant noted that his mother had died "Sunday July 2012." The Respondent countered that being out of the U.S. when the orders were delivered was not a per se basis for tolling, and noted that the Complainant had not specified the date on which he returned to the U.S. The Respondent presented three emails to show that the Complainant had been in possession of the ALJ's orders and was conducting business on pending cases against the Respondent the week prior to the due date for the ARB petition. The Respondent also presented documentation showing that the Complainant's mother had died 13 days after the deadline to file the petition and 12 days after the petition had actually been filed. The ARB agreed that not being in the U.S. when the ALJ's Orders were delivered is not in and of itself a proper basis for tolling the limitations period. Instead, a party has the burden to establish how this fact precluded the party from timely filing a petition for review or requesting an enlargement of time in which to do so. The ARB found that the Complainant failed to carry that burden in the instant case.

APPEALS DISMISSED AS INTERLOCUTORY WHERE ALJ HAD NOT YET ISSUED SUPPLEMENTAL DECISION ON DAMAGES

In Gunther v. Deltek, Inc. , ARB Nos. 12-097, -099, ALJ No. 2010-SOX-49 (ARB Sept. 11, 2012), the ALJ included a notice of appeal rights in her decision on the merits, but had clearly indicated that damages would be addressed in a supplemental order. The Complainants filed appeals with the ARB, and the ARB issued an order to show cause why the appeals should not be dismissed because there were no grounds for an interlocutory appeal. Neither party responded to the order to show cause. The ARB found that the ALJ had not yet fully disposed of the complaint before her, found that the Complainants' petitions for review were interlocutory, and dismissed the interlocutory appeals.

TIMELINESS OF PETITION FOR ARB REVIEW; FAILURE TO SHOW GROUNDS FOR TOLLING OF UNTIMELY PETITION

In Levi v. Aerotek, Inc. , ARB No. 12-077, ALJ Nos. 2012-SOX-11 and 12 (ARB Sept. 6, 2012), the Complainant filed a petition for review of the ALJ's dismissal of his complaints. It appearing that the petition was not timely filed, the ARB issued an order to cause why the petition should not be dismissed. The Complainant responded by requesting that the ARB withdraw the show cause order because at the time the ARB issued it, the ALJ's decision had already become the final order of the Secretary of Labor pursuant to 29 C.F.R. § 1980.110(b). The ARB found that 29 C.F.R. § 1980.110(b) was inapplicable because the Complainant admittedly did not timely file the petition for review. The ARB observed that instead of responding to the order to show cause with an attempt to establish that the limitations period should be tolled, the Complainant had requested that the ARB withdraw the order. Based on these circumstances, the ARB withdrew the order to show cause, and dismissed the appeal as untimely.