Kossen v. Asia Pacific Airlines (agency decision, August 11, 2025)

Plain-English summary

Darren Kossen asked the Board to reconsider its decision affirming summary dismissal of his AIR21 retaliation complaint against Asia Pacific Airlines. He challenged the causation analysis, alleged procedural errors and bias, and claimed evidence had been suppressed. The Board found that most arguments repeated matters already resolved. It explained that, without other causation evidence submitted in opposition to summary decision, a gap of four years and four months did not support an inference of retaliation. It also found that Kossen had waived his failure-to-rehire challenge and had not shown how the alleged suppressed evidence would change the result. The Board denied reconsideration.

Decision snapshot

• Cited authorities: 49 U.S.C. § 42121; 29 C.F.R. § 1979.110(a)
• Outcome: Motion for reconsideration denied; prior affirmance remains in place.
• Key point: Reconsideration requires a recognized basis for revisiting the decision, not repetition of previously rejected arguments.

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:


DARREN KOSSEN,                                 ARB CASE NO. 2023-0047

            COMPLAINANT,                       ALJ CASE NO. 2023-AIR-00001
                                               ALJ CHRISTOPHER LARSEN
     v.
                                               DATE: August 11, 2025
ASIA PACIFIC AIRLINES,

            RESPONDENT.

Appearances:

For the Complainant:
Darren Kossen; Pro Se; Honolulu, Hawaii

For the Respondent:
Steven P. Pixley, Esq.; Pixley Law Offices, LLC; Saipan, Northern
Mariana Islands

Before JOHNSON, Chief Administrative Appeals Judge, and THOMPSON and KAPLAN, Administrative Appeals Judges

                  ORDER DENYING RECONSIDERATION

  This case arises under the employee protection provisions of the Wendell H.

Ford Aviation Investment and Reform Act for the 21st Century (AIR21) and its implementing regulations. 1 Complainant Darren Kossen filed a complaint with the
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U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) alleging that Respondent Asia Pacific Airlines unlawfully retaliated against him for engaging in protected activity.

1 49 U.S.C. § 42121; 29 C.F.R. Part 1979 (2025). 2

  On August 8, 2023, a United States Department of Labor Administrative

Law Judge (ALJ) issued an Order Granting Summary Decision. Complainant moved for reconsideration. On August 15, 2023, the ALJ issued an Order Denying Reconsideration. Complainant petitioned the Administrative Review Board (ARB or Board) for review of the ALJ’s Order Granting Summary Decision and Order Denying Reconsideration. The Board affirmed the ALJ’s orders on May 30, 2025.

  On June 9, 2025, Complainant filed a Motion for Extension of Time

requesting additional time to move for reconsideration of the Board’s Decision and Order (D. & O.). The Board granted the motion on June 25, 2025. On June 30, 2025, Complainant filed a Motion for Reconsideration seeking reconsideration of the D. & O.

   The Board will reconsider a decision and order only under limited

circumstances. 2 In determining whether to reconsider a decision, the Board looks to
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whether the movant has demonstrated: (i) material differences in fact or law from those presented to the Board of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the Board’s decision, (iii) a change in the law after the Board’s decision, or (iv) failure to consider material facts presented to the Board before its decision. 3 2F

   Complainant asserts that we should reconsider our decision for several

reasons, including: (1) the Board erred in finding that temporal proximity of four years and four months negates causation under AIR21 as it is contrary to the Supreme Court’s decision in Murray v. UBS Secs., LLC; 4 (2) the Board erred in not
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considering evidence allegedly highlighting Respondent’s pretextual justifications for not rehiring Complainant; 5 (3) the Board erred in overlooking significant
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procedural irregularities during the OALJ proceedings which prejudiced

2 Thomas v. DuPont Specialty Prods. USA, LLC, ARB No. 2023-0055, ALJ No. 2023- WPC-00004, slip op. at 2 (ARB Mar. 11, 2025) (Order Denying Reconsideration) (citing Shah v. Albert Fried & Co., ARB No. 2020-0063, ALJ No. 2019-SOX-00015, slip op. at 2 (ARB Jan. 31, 2023) (Order Denying Second Motion for Reconsideration)). 3 Id. (citing Clark v. Hamilton Hauling, LLC, ARB No. 2013-0023, ALJ No. 2011-STA- 00007, slip op. at 2 (ARB July 24, 2014) (Order Denying Motion for Panel Reconsideration)). 4 Complainant’s Motion for Reconsideration of 5-30-25 Decision and Order (Motion for Reconsideration) at 1-2. 5 Id. at 2-3. 3

Complainant; 6 (4) the Board erred by dismissing Complainant’s concerns regarding
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the ALJ’s biases without an adequate investigation; 7 (5) the Board erred in denying
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Complainant’s Motion for Reconsideration by the ALJ; 8 and (6) the Supreme Court’s
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recent decision in Glossip v. Oklahoma regarding deliberately withheld or suppressed evidence supports grounds for reconsideration. 9 8F

   We disagree that Complainant’s arguments, viewed separately or in

combination, warrant reconsideration of our previous decision. Most of Complainant’s arguments do not fall within any of the four limited circumstances under which we will reconsider decisions because they were addressed by the Board in the D. & O. Thus, we will not revisit the arguments regarding alleged procedural irregularities, claims of ALJ bias, or the ALJ’s denial of Complainant’s motion for reconsideration again on reconsideration to the ARB. 10 Instead, we turn to
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Complainant’s other arguments addressing temporal proximity, pretext, and Glossip’s analysis of deliberately withheld evidence.

  First, Complainant argues that the Board erred in finding that temporal

proximity of four years and four months negates causation under AIR21 as it is contrary to the Supreme Court’s holding in Murray v. UBS Secs., LLC. 11 10F

Complainant asserts that the Court’s holding “explicitly rejects strict reliance on temporal proximity alone to deny causation in whistleblower retaliation cases . . .
[and] must be considered alongside other substantive evidence[.]” 12 Complainant
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misinterprets the Court’s holding. 13 In Murray, the Court examined whether a
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6 Id. at 3.
7 Id. at 3-4.
8 Id. at 4-5.
9 Id. at 5-6.
10 See Thomas, ARB No. 2023-0055, slip op. at 2 (denying motion for reconsideration where a party repeated arguments raised in her original appeal that the Board considered and rejected) (citations omitted). These arguments are referenced as (3)-(5) in the paragraph above. 11 Motion for Reconsideration at 1-2. 12 Id. 13 Complainant identifies “Murray v. UBS (2025)” and refers to it as Supreme Court precedent without a page number or case citation. Id. The Board ‘“construes arguments for self-represented litigants liberally in deference to their lack of training in the law,’ while ‘also refrain[ing] from becoming an advocate for the pro se litigant.”’ Williams v. QVC, Inc., ARB No. 2020-0019, ALJ No. 2018-SOX-00019, slip op. at 7 n.43 (ARB Jan. 17, 2023). 4

complainant is required to make a showing that their employer acted with “retaliatory intent” in order to satisfy the contributing factor element. 14 Ultimately,
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the Court held that such a showing is not required. 15 14F

   Although Complainant misinterprets Murray, we agree that tribunals should

examine direct and circumstantial evidence to determine whether a complainant has established that their protected activity was a contributing factor in the respondent’s adverse action. 16 However, when “other substantive evidence” is not
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available, a tribunal may look to “temporal proximity” and find that a significant time gap between a protected activity and adverse action makes it unreasonable to infer causation. 17 As addressed in Section 1B of the D. & O., Complainant did not
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oppose Respondent’s Motion for Summary Decision, leaving the ALJ to evaluate causation solely based on the temporal proximity from February 2018, the date of Complainant’s protected activity, to June 2022, the date Respondent sent Complainant’s pilot record documentation to the prospective employer. There was no other “substantive evidence” for the ALJ to consider. On this information alone, the ALJ properly determined that the passage of four years and four months from Complainant’s protected activity to the alleged adverse action, was too long to infer retaliation under AIR21.

   Second, Complainant avers that the Board erred in not considering evidence

highlighting Respondent’s allegedly pretextual justifications for not rehiring him. 18 17F

Again, we disagree. Complainant’s Petition for Review, Opening Brief, 19 and 18F

untimely Reply Brief do not address the ALJ’s conclusion pertaining to

(citation omitted). Construing Complainant’s arguments liberally, the Board notes that Murray was initially decided by the Supreme Court in 2024 but was remanded to the Second Circuit Court of Appeals, and the Second Circuit issued its decision in 2025. Assuming the “2025” date was a typographic error, the Board examines Complainant’s argument in context of Murray v. UBS Secs., LLC, 601 U.S. 23 (2024). 14 Murray, 601 U.S. at 32-39. 15 Id. at 39. 16 See Mazenko v. Pegasus Aircraft Mgmt., LLC, ARB No. 2021-0032, ALJ No. 2019- AIR-00001, slip op. at 26 & n.181 (ARB June 18, 2024) (citing Williams, ARB No. 2020- 0019, slip. op. at 12). 17 D. & O. at 11 nn.58-59. 18 Motion for Reconsideration at 2-3. 19 D. & O. at 6 n.27 (citing Order Rejecting Complainant’s Amended Brief in which the Board accepted only the compliant portion of Complainant’s opening brief). 5

Complainant’s failure to re-hire claim. The Board considers objections not raised by parties waived on appeal. 20 19F

  Third, Complainant contends that the Supreme Court’s decision in Glossip v.

Oklahoma 21 underscores the significance of suppressed or hidden evidence and
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supports grounds for reconsideration. 22 Specifically, Complainant claims that
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“evidence relevant to FAA investigations was deliberately withheld or suppressed, possibly implicating opposing counsel in ethical violations by concealing evidence and knowingly introducing false testimony and documentation.” 23 Yet,
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Complainant’s argument does not address how this evidence would have had any impact on the result in this case. 24 Rather, Complainant’s argument centers on
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alleged and speculative ethical violations by Respondent’s attorney. While the Board expects, and the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges require, all parties to adhere to reasonable and ethical standards of conduct, 25 our jurisdiction is limited to the
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statutes assigned to us. 26 The Board does not have the authority to investigate such
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alleged misconduct. 27
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20 29 C.F.R. § 1979.110(a).
21 Glossip v. Oklahoma, 145 S.Ct. 612 (2025).
22 Motion for Reconsideration at 5-6.
23 Id.
24 Complainant also did not include such evidence with his Motion for Reconsideration. 25 29 C.F.R. § 18.87; see also id. § 18.22(c)-(d). 26 E.g., Gladden v. The Proctor & Gamble Co., ARB No. 2022-0012, ALJ No. 2021-SOX- 00012, slip op. at 32 (ARB May 9, 2023) (noting that the complainant “could not have included her Title VII claims with her administrative [Sarbanes-Oxley Act] claim as [the Department of Labor’s] jurisdiction is limited to the statutes assigned to it.”). 27 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); 29 C.F.R. § 1979.110(a). 6

Accordingly, the Board DENIES Complainant’s Motion for Reconsideration.

SO ORDERED.

                          RANDEL K. JOHNSON
                          Chief Administrative Appeals Judge



                          ANGELA W. THOMPSON
                          Administrative Appeals Judge



                          ELLIOT M. KAPLAN
                          Administrative Appeals Judge