Iwaseczko v. Teton County Weed & Pest Control District (agency decision, August 14, 2025)
Iwaseczko v. Teton County Weed & Pest Control District (DOL ARB 2022-0059): Dismissal of health-benefit retaliation claims affirmed
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This is citable agency precedent from 2025, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
Marta Iwaseczko and Thomas Spatafore alleged that a Wyoming weed and pest control district retaliated against them for raising concerns about discrimination in health benefits. Spatafore challenged a negative evaluation, eviction from employee housing, and failure to rehire him; Iwaseczko challenged her termination after sharing personnel emails. The Board upheld findings that most of their conduct did not qualify as protected activity under the Affordable Care Act, including because their belief that benefits were denied on racial grounds was not objectively reasonable on this record. Even assuming certain information-gathering activities were protected, the Board found substantial evidence supporting the conclusion that protected activity did not contribute to the challenged employment actions. It also upheld the judge's discovery ruling and affirmed dismissal of both complaints. Judge Thompson concurred but expressed concern that Spatafore's evaluation appeared retaliatory for employment complaints outside the Board's ACA jurisdiction.
Decision snapshot
- Cited authorities: 29 U.S.C. § 218c; 42 U.S.C. § 18116(a); 29 C.F.R. §§ 1984.109(a)-(b), 1984.110(b)
- Outcome: Dismissal of both retaliation complaints affirmed; petition denied.
- Key point: General employment complaints do not establish ACA protected activity, and an ACA retaliation claim also requires proof that protected activity contributed to the adverse action.
Full text (DOL official public release)
U.S. Department of Labor 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
THOMAS SPATAFORE, CHIEF ALJ STEPHEN R. HENLEY
COMPLAINANTS, DATE: August 14, 2025
v.
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
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Marta Iwaseczko and Thomas Spatafore (Complainants) filed complaints with the
1 29 U.S.C. § 218c; 29 C.F.R. Part 1984 (2025). 2
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
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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
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members appointed by county commissioners, 3 and has a supervisor, 4 assistant
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supervisors, 5 program coordinators, 6 full-time, part-time, and seasonal employees. 7
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Seasonal employees work from approximately May to October and are hired by the program coordinators. 8 Respondent does not collect information about the ethnicity
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of applicants; 9 however, it permits employees to voluntarily self-identify. 10
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2 D. & O. at 8.
3 The ALJ noted the following board members most frequently referred to in the evidentiary record: John Becker, Kasey Mateoksy, and Mary Cernicek. Id. 4 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. 5 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. 6 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. 7 Id. 8 Id. 9 According to the ALJ, Respondent typically does not hold in-person interviews before hiring people because applicants are “usually all over the place.” Id. 10 Id. 3
Respondent created a Policy Handbook as a “reference and general guide for
the efficient and professional performance” for employment at TCWP. 11 The Policy
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Handbook discusses various employment policies, standards, and benefits, including health benefits available to certain employees. 12 For example, the Policy
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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
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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
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Additionally, Respondent offers eligible employees housing to retain enough
seasonal workers. 15 The housing is rent free for the summer season, and seasonal
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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 15F
However, housing is not guaranteed. 17 In late winter and early spring 2017,
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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
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policy on July 25, 2017. 19 According to the policy, preference for one-bedroom units
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was given to couples who were married or in a committed relationship. 20 The policy
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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 20F
11 Joint Exhibit (JX) 1 at 5.
12 Id. at 2-4.
13 D. & O. at 10.
14 Id.
15 Id. at 11.
16 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. 17 Id. 18 Id. 19 Id. at 12. 20 Id. at 11. 21 Id. 4
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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
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employee in May 2008. 23 Spatafore was re-hired as a seasonal employee from 2009
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through 2017. 24 From 2008 through the mid-season of 2017, Spatafore “always
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received overall good performance evaluations, with scores ranging from average to—most often—excellent and exemplary.” 25 Spatafore lived in TCWP’s employee
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housing from 2008 to 2017 and began living in the housing year-round in 2010. 26 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
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Respondent explaining why he did not want to be photographed and was not interested in full-time positions with Respondent. 28 Specifically, Spatafore stated
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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
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grounded in Native American heritage. 30 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
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as American Indian or Alaska Native and returned the form to Respondent. 32 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
22 Id. at 12-13.
23 Id. at 12.
24 Id.
25 Id.
26 Id. at 13.
27 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. 28 Id. at 15. 29 Id. 30 Id. 31 Id. 32 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. 5
it expected to house married couples for the summer season. 33 Around this same
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time, Spatafore became concerned about his job description and duties, and discussed these concerns with Rives. 34 Spatafore wanted to be reclassified as a part-
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time, year-round employee. 35 Respondent ultimately chose not reclassify Spatafore’s
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position. 36 Then, in April of 2017, Respondent formally notified Spatafore that he
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needed to move to a dorm unit by May 6 because it decided to give the private one- bedroom unit to a couple. 37 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,
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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
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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
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recommended by existing white employees. 41 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
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an executive session to discuss Spatafore’s discriminatory hiring practices claims
33 Id. at 15.
34 Id.
35 Id. at 17.
36 Id.
37 Id.
38 Id. at 19. Spatafore provided Girard a list of his grievances which Girard later forwarded to Edmiston on September 5, 2017. Id. at 20. 39 See id. at 19-21; see also id. at 22. 40 Id. at 23. 41 Id. 42 Id. at 24. 6
and his general work performance. 43 The TCWP Board considered asking Spatafore
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to vacate employment housing immediately but opted not to. 44 Nevertheless, later
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that day, Respondent and Spatafore entered into a winter housing agreement that covered from October 1, 2017, through April 20, 2018. 45 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
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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
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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
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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
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with Edmiston and a TCWP Board member. 50 On October 2, 2017, Spatafore met
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with Edmiston and Mateosky and raised additional discrimination concerns. 51 50F
In October 2017, Spatafore began researching health benefits, retirement
benefits, and potential disparate treatment at TCWP. 52 Spatafore discussed these
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discrimination concerns with Iwaseczko expressing his belief that he did not receive
43 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. 44 Id. at 24. 45 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. 46 Id. 47 Id. at 27; see also id. at 22. 48 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. 49 Id. at 27. 50 Id. 51 Id. at 29. 52 Id. at 30. 7
benefits he was eligible for due to the 2012 photograph incident. 53 Spatafore also
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told Iwaseczko he believed there was hiring discrimination at TCWP. 54 On October 53F
8, 2017, Iwaseczko forwarded Spatafore three emails about seasonal employees, retirement benefits, and job descriptions. After reviewing an email entitled “Pete- oh 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
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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 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. 57 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,
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Respondent received a phone call from the Wyoming Department of Labor stating that a discrimination complaint would be forthcoming. 59 Mateosky then informed
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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
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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 60F
53 Id.
54 Id.
55 Id.
56 The Board will refer to the employee as “P.B.” considering that the employee is not directly involved in Complainants’ claims. 57 Id. at 30-31. 58 Id. at 31. 59 Id. 60 Id. 61 Id. 8
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 62F
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
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supervisor’s inquiry in early November. 65 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
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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
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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 67F
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 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
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eligible for the county’s plan as they were not county employees. 71 The Director
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62 Id. at 32.
63 Id.
64 Id.
65 Id. at 34.
66 Id. at 33.
67 Id. at 34.
68 Id.
69 Id.
70 Id. at 35.
71 Id. at 36.
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suggested that Spatafore contact Edmiston for further clarification. 72 Edmiston 71F
later received a call from the Director about Spatafore’s inquiry. 73 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 73F
The special session was about Spatafore. 75 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
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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
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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
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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 Board78F
decided to evict Spatafore from employee housing, citing concerns about his performance, past complaints, and potential litigation. 80 Later that day, Edmiston
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sent Spatafore a formal 30-day eviction notice. 81 Spatafore testified that he
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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. 8281F
72 Id.
73 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. 74 Id. 75 Id. at 37. 76 Id. 77 Id. 78 Id. at 40-41. 79 Id. at 41-42 & n.41. 80 Id. 81 Id. at 42. 82 Id. at 43. 10
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 82F
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
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email, stating that she believed she had already responded to the earlier conversation, and then, proceeded to provide Spatafore with a complaint form. 85 84F
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
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the complaint form for further review by BCBSWy. 87 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. 8887F
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
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relevant part:
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
83 Id.
84 Id. at 44.
85 Id.
86 Id.
87 Id.
88 Id.
89 Id. at 45.
90 Id. at 45-46.
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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]
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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
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statement to the letter. 93 Edmiston responded on January 29, 2018, denying the
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allegations and asserting TCWP’s practices were non-discriminatory. 94 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
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invited back, citing his negative 2017 performance evaluation. 96 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
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Spatafore had not engaged in protected activity under the ACA. 98 Spatafore filed
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objections to the Secretary’s Findings and requested a hearing before the OALJ on January 11, 2019. 99 98F
91 Id. at 46.
92 Id.
93 Id.
94 Id. at 46-47.
95 Id. at 47.
96 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. 97 Id. at 2. 98 Id. 99 Id. 12
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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
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the mosquito program, safety protocols, fieldwork, scheduling, and staff oversight. 101 Iwaseczko had a strong performance record with no disciplinary
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actions taken against her up until her termination in December 2017. 102 101F
In 2015, Iwaseczko received a copy of the TCWP Policy Handbook. 103 102F
The TCWP Policy Handbook contains an acknowledgment form that states:
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
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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
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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.
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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
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housing policies were discriminatory, particularly as to married couples. 109 108F
Iwaseczko thought the seminar may inform Spatafore about his housing rights. 110 109F
Over the next several months, Iwaseczko continued forwarding TCWP emails to her personal email address, Spatafore, and another coworker.
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
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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
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emails to her personal account, which she later shared with Spatafore. 113 112F
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
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October 16, 2017, Iwaseczko forwarded a July 11, 2017 email exchange about job postings to her personal account and Spatafore. 115 114F
In November 2017, Edmiston sought assistance from Information Technology
(IT) to recover deleted emails from Iwaseczko, who had allegedly been sending
107 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. 108 Id. at 52. 109 Id. 110 Id. 111 Id. 112 Id. 113 Id. at 54. 114 Id. 115 Id. at 55. 14
personnel-related information outside of TCWP. 116 On November 9, 2017, IT sent
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Edmiston an email with pertinent information in an attachment. 117 Edmiston also
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began reviewing other employees’ emails in response to the WRS inquiry. 118 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
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emails containing personnel information to personal accounts. 121 Although
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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 121F
On December 6, 2017, the TCWP Board met in an executive session to
discuss Iwaseczko disclosing internal information to “outside sources.” 123 The 122F
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
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to provide a credible explanation for her actions. 125 Consequently, the TCWP Board
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decided to offer Iwaseczko a severance package, which included two months’ salary and continued health insurance coverage through January 2018. 126 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
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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.
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forensics expert discovered that Iwaseczko used her work computer for non-work purposes and emailed TCWP materials to her personal account. 128 Upon receiving
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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
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TCWP should reconsider its offer of separation to Iwaseczko given the discovery of additional violations. 130
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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
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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 131F
As Iwaseczko did not return the Voluntary Separation Agreement by the deadline, Edmiston terminated her employment retroactively to December 7, 2017. 133 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
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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
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Finding and requested a hearing before the OALJ on June 18, 2018. 136 135F
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Procedural History
On January 18, 2019, the Administrative Law Judge (ALJ) issued an Order
of Consolidation, thereby consolidating Complainants’ claims. 137 The ALJ
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conducted a hearing on July 22-23, 2019. Following the hearing, the parties filed
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.
16
post-hearing briefs and responses. 138 On August 9, 2022, the ALJ issued a D. & O.
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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.
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
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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
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reasonable mind might accept as adequate to support a conclusion.”’ 141 The Board140F
reviews an ALJ’s determinations on procedural and evidentiary rulings under an abuse of discretion standard. 142
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DISCUSSION
-
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
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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 143F
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
138 Id. at 3.
139 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). 140 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). 141 Morrell, ARB No. 2023-0030, slip op. at 9 (citation omitted). 142 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)). 143 Perkins v. Cavicchio Greenhouses, Inc., ARB No. 2022-0018, ALJ No. 2019-ACA- 00005, 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)). 144 29 U.S.C. § 218c(a). 17
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
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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 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
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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
145 29 C.F.R. § 1984.109(a).
146 Id. § 1984.109(b).
147 29 U.S.C. § 218c(a).
148 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. 18
insurance requirements for employers, also known as the “employer shared responsibility provisions.” 149148F
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]
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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 anti-
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discrimination claim under Section 1557 are not enforced by DOL. 152 Therefore, the
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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.
- 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
149 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). 150 42 U.S.C. § 18116(a). 151 Id. § 2000d. 152 The anti-discrimination provisions of Section 1557 are enforced by Health and Human Services. See 45 C.F.R. Part 92. 19
employment because [the employee engages in protected
activity].[ 153]
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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
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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 154F
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.
-
“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).
154 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. 155 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.”). 20
participated, or is about to assist or participate, in such a proceeding. 156 Before the
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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
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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
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examined Complainants’ activities under (a)(2) and (a)(5). 159 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
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(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
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adjudicate to assist in our interpretation of subsections (a)(3)-(a)(4). 162161F
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. 160 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)). 161 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.”)). 162 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). 21
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
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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
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“proceeding” to refer strictly to formal legal or administrative processes, explicitly excluding internal complaints from coverage. 165 The court reasoned that the statute
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protected involvement in a “structured proceeding,” not just any act—such as notifying an employer—performed in furtherance of compliance. 166 This textualist
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approach effectively limited whistleblower protections to participation in official enforcement mechanisms.
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
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whistleblower provisions protected employees who initiated or participated in “any proceeding” under the CWA. 168 The Passaic Valley court recognized the ambiguity
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in the term “proceeding” and expanded its meaning to encompass intercorporate complaints. 169 The court grounded this expansion in the statute’s broad remedial
168F
purpose, emphasizing that whistleblower protections would be hollow if limited only to formal legal or administrative complaints, and cited to several decisions
163 Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). 164 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:
(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). 168 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. 169 Id. at 478-79. 22
interpreting other statutes to similarly protect internal complaints to the employer. 170169F
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
170F
complaints while reaffirming protections for participation in ERA enforcement actions before Congress or a governmental entity. 172 This statutory clarification set
171F
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
172F
similar structure, and its language also distinguishes between internal disclosures and proceedings. 174 Specifically, AIR21’s language clearly links “proceeding” with
173F
more formal actions, such as filing or testifying. 175 The ACA and the CPSIA
174F
followed suit, each modeling their whistleblower provisions on a similar structure. 176 As a result, while internal complaints are now recognized as its own
175F
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).
-
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.
171 Willy v. Admin. Rev. Bd., U.S. Dep’t of Lab., 423 F.3d 483, 489 n.11 (5th Cir. 2005) (acknowledging legislative change). 172 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.]”). 173 See 49 U.S.C. § 42121(a). 174 Id. 175 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. 176 Supra note 155. 23
believe violates any provision of Title I of the ACA. 177 To have a “reasonable belief,”
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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
177F
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 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). 178 Perkins, ARB No. 2022-0018, slip op. at 5 (citations omitted); see ACA Final Rule, 81 Fed. Reg. at 70,611-12. 179 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.”). 180 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 24
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,
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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
181F
indicates that P.B. was allowed to keep his health benefits after converting to part- time 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 182F
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 183F
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.
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
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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. 184 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. 2016- FRS-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). 185 29 U.S.C. § 218c(a)(2). 25
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. 186185F
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 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
187F
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
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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
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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.
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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,
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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
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186 D. & O. at 84.
187 Id. at 84-87.
188 Id. at 84.
189 Id.
190 Id.
191 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). 192 29 U.S.C. § 218c(a)(2). 193 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 26
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
193F
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
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
195F
employment and states that “temporary or seasonal employees [] will not be eligible for benefits unless otherwise specified.” 197 An employee with Spatafore’s training
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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.
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.”)). 194 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)). 195 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. 196 Hearing Transcript (Tr.) at 280. 197 JX-1 at 17. 27
personal circumstances. 198 The ALJ concluded that the two employees were not in
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comparable positions. 199 We affirm. 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
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24, 2018, Spatafore wrote a letter to the TCWP Board, addressing potential discrimination practices and citing ACA violations. 201 Edmiston responded on
200F
January 29, 2018, denying the allegations and asserting TCWP’s practices were non-discriminatory. 202 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 202F
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 203F
(2) P.B. and Spatafore were not similarly situated; 205 and (3) Spatafore, since the
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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 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
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198 D. & O. at 88.
199 Id.
200 Id. at 45-46. The ALJ observed that for all purposes, Spatafore was no longer an employee at this time. Id. at 95-96. 201 Id. at 46. 202 Id. at 46-47. 203 Id. at 97. 204 Id. at 96. 205 Id. at 97. 206 Id. 207 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 28
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
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On January 24, 2018, Spatafore reported his address to the TCWP Board. 209 208F
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.
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
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violation made to employers, the federal government, or state attorneys general.
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. 29
protected under (a)(5) as “information gathering.” 211 The ALJ reasoned that
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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
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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]
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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
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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.
211 Id. at 91-92.
212 Id. at 90.
213 29 U.S.C. § 218c(a).
214 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 . . . .”). 30
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
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Co., 216 and Willy v. Coastal Corp., 217 for the position that while there has been
215F 216F
some recognition of “perceived protected activity,” these decisions have not fully developed the theory. 218 The ALJ described Complainants’ theory of protected
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activity as “far too attenuated” to carry Complainants’ burden of proof:
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]
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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
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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 mid-
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215 Complainants’ Br. at 25-29.
216 Keene v. Houston Lighting & Power Co., ARB No. 1996-0004, ALJ No. 1995-ERA- 00004 (ARB Feb. 19, 1997). 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. 220 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. 221 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 31
November, Spatafore’s complaints to Respondent were about its alleged discrimination in hiring and promotions—not health care benefits or ACA related matters. 222
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- We Affirm the ALJ’s Findings and Conclusions that Iwaseczko Did Not
Engage in Protected ActivityThe ALJ also examined Iwaseczko’s alleged protected activities, includingIwaseckzo’s silence during a September 2017 telephone call with Edmiston, 223 222F
Iwaseczko’s forwarding emails to her personal email account and to Spatafore, 224 223F
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
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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 225F
(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
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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
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these findings.
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. 32
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
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way or the other. 230 The ALJ concluded that this silence was not protected under
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(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.
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
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229 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. 230 Id. at 100. 231 Id. at 104-05 (citations and footnotes omitted). 232 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 33
company policy to collect information has been found to be protected activity. 233 232F
But there are limits to the degree of conduct that may be protected. 234 Iwaseczko
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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 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
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between the protection of the law and the restraints of company policy. 237 236F
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
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business and client information, and the equally compelling need of employees to be properly safeguarded against retaliatory actions.”). 233 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)). 234 Id. at 104 (citing Lee v. Parker-Hannifin Corp., ARB No. 2010-0021, ALJ No. 2009- SWD-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)). 235 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-AIR- 00007, 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)). 236 Vannoy v. Celanese Corp., ARB No. 2009-0118, ALJ No. 2008-SOX-00064, slip op. 15-17 (ARB Sept. 28, 2011). 237 Complainants’ Br. at 31-33. 238 Vannoy, ARB No. 2009-0118, slip op. at 15. 34
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
238F
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
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reasonable belief of a SOX violation when he disclosed the material to the IRS. 241 240F
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 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 242F
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 243F
This conduct cannot be sanctioned as protected activity under the ACA.
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.
241 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.”). 242 See D. & O. at 103-05. 243 Id. at 52. 244 JX-62. 35
claimed that she was assisting Spatafore in rectifying “disparate treatment.” 245
244F
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
245F
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 246F
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
247F
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
248F
-
Complainants’ Other Arguments Concerning Protected Activity Do Not
Alter Our DecisionOn 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.
36
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,
249F
“[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
250F
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 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 252F
so, Complainants are correct that individuals are not required to disclose the basis of their reasonable beliefs when engaging in protected activity. 254 Complainants253F
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
254F
standard adopted by the ARB in several whistleblower statutes, including under the ACA. 256 The objective reasonableness standard evaluates a belief based on the
255F
employee’s knowledge, training, and experience. 257 Although Complainants 256F
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 257F
250 Complainants’ Br. at 35-42.
251 D. & O. at 85.
252 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). 253 D. & O. at 7, 88-91, 97, 102-08. 254 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).
255 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. 256 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). 257 Complainants’ Br. at 37. 258 Reznik v. Incontact, Inc., 18 F.4th 1257 (10th Cir. 2021). 37
and Oberg v. Quinault Indian Nation. 259 Both Reznik and Oberg cite to Sylvester
258F
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.
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
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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
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believed health benefits “were offered” based on “[t]he policy handbook.” 263 The
262F
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
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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.
Finally, Complainants argue the ALJ failed to consider and protect
Spatafore’s alleged protected activities in March and August 2017. 265 Complainants
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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
259 Oberg, ARB No. 2019-0036, slip op. at 4-5.
260 D. & O. at 88.
261 Complainants’ Br. at 38.
262 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.”). 263 Tr. at 280. 264 JX-1 at 17. 265 Complainants’ Br. at 42. 38
protected under the ACA. While Complainants identified these events in their Post- Hearing Brief as proposed findings of fact 266 and then, discussed these events as
265F
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
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Spatafore mentioned any concerns regarding health coverage. 268 As previously held,
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the ACA is not a general employee grievance statute. 269 Spatafore’s March 2017
268F
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.
-
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,
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which, alone or in combination with other factors, affects the outcome of the decision. 271 Employees may meet their evidentiary burden with circumstantial
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evidence. 272 Circumstantial evidence may include, but is not limited to, temporal
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proximity, inconsistent application of an employer’s policies, pretext, shifting explanations by the employer, or antagonism. 273 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). 271 Williams v. QVC, Inc., ARB No. 2020-0019, ALJ No. 2018-SOX-00019, slip op. at 12 (ARB Jan. 17, 2023) (citation omitted). 272 Id. (citation omitted). 273 Id. (citation omitted). 39
the alleged adverse actions and concluded that none of them were a contributing factor in the three alleged unfavorable adverse actions. 274 273F
i. 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.
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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 275F
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 276F
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 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:
274 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. 275 Id. at 111. 276 Id. at 116. 277 Id. at 124. 278 Id. at 46. 40
(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 278F
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 279F
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
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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
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supported by substantial evidence.
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 282F
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
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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
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279 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). 280 D. & O. at 112-16. 281 Id. at 116. 282 Id. at 115. 283 Id. at 118. 284 Id. at 45, 116-17. 285 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 41
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
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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
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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.
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
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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. 291 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 42
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
291F
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 292F
-
The ALJ Did Not Abuse His Discretion in Ruling on Complainants’
Motion to CompelBefore 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 293FComplainants 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 294F
(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”
295F
the TCWP Board’s animus against Complainants’ OSHA complaints, which can be relevant to prove motive and causation. 297 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. 294 Order Denying Complainants’ Motion for Partial Summary Judgment and Respondent’s Motion for Summary Judgment at 3 n.2. 295 Complainants’ Br. at 53. 296 Id. at 54. 297 Id. 43
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
297F
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,
298F
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
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.
298 May, ARB No. 2022-0015, slip op. at 6 (citing Furlong-Newberry, ARB No. 2022- 0017, slip op. at 22). 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). 44
CONCLUSION 302301F
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
302F
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
303F
302 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). 303 Supra note 25. 304 See JX-54 45
Respondent as an explanation for lower ratings on the end-season evaluation. 305 304F
Respondent was aware of Spatafore’s late season start at the time of the mid-season evaluation, yet chose not to mention it.
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
305F
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) in306F
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
305 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:
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.
306 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:
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.
46
photograph; 308 (3) in September 2017, Spatafore requested to review his personnel
307F
file due to concerns from the 2012 group photograph incident; 309 (4) in September
308F
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
309F
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
310F
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
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.
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