Sharpe v. Geiger Excavating, Inc.

U.S. Department of Labor Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
CODY SHARPE,
COMPLAINANT,
v.
GEIGER EXCAVATING, INC.,
CHRISTOPHER STABLER, and
BRUCE MERTZ,
RESPONDENTS.
ARB CASE NO. 2024-0038
ALJ CASE NO. 2023-STA-00027
ALJ DREW A. SWANK
DATE: April 29, 2026
Appearances:
For the Complainant:
Peter L. LaVoie, Esq. and Paul O. Taylor, Esq.; Truckers Justice
Center; Edina, Minnesota
For the Respondents:
Megan M. Torres, Esq. and Craig R. Patterson, Esq.; Beckman
Lawson, LLP; Fort Wayne, Indiana
Before BURRELL and KIKO, Administrative Appeals Judges
DECISION AND ORDER
This case arises under the Surface Transportation Assistance Act of 1982
(STAA), as amended, and its implementing regulations.1 Complainant Cody Sharpe
filed a complaint with the United States Department of Labor’s Occupational Safety
and Health Administration (OSHA) alleging that Respondents Geiger Excavating,
Inc., Christopher Stabler, and Bruce Mertz retaliated against him for engaging in
STAA protected activity. A United States Department of Labor Administrative Law
Judge (ALJ) issued an Order Granting Respondents’ Motion for Summary
1 49 U.S.C. § 31105(a); 29 C.F.R. Part 1978 (2025).

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Judgment, Dismissing Complainant’s Claims with Prejudice, Denying Respondents’
Motion to Convert the Hearing, and Cancelling Hearing (Order Granting Summary
Decision). Complainant petitioned the Administrative Review Board (ARB or Board)
for review. For the following reasons, we summarily affirm the ALJ’s Order
Granting Summary Decision.
BACKGROUND
In May 2021, Geiger Excavating, Inc. (Geiger) hired Complainant as a driver
responsible for transporting heavy construction and excavation equipment to job
sites and performing snow removal during winter months.2 Beginning in January
2022, Complainant accepted a part-time position with Tri County Ambulance,
working overnight shifts on Fridays and Saturdays.3 After accepting this part-time
position, Complainant informed Stabler, his dispatcher, that he would be
unavailable to work weekends for Geiger.4
Between February 2 and 4, 2022, Complainant was assigned to perform snow
removal.5 During this assignment, Complainant sent a text message to Mertz,
his supervisor, stating, “this is the last snow fall I work.”6 On February 4, 2022,
at approximately 2:44 p.m., Stabler contacted Complainant and requested that he
complete a delivery assignment to Terre Haute, Indiana, over the weekend, on
either February 5 or 6.7 The assignment involved an approximately 200-mile, 10-
hour round trip.8 Complainant declined the assignment via text message, stating
that he was unavailable.9 Complainant did not provide an explanation for the
refusal.10 At the time of the refusal, Complainant had accumulated approximately
54.5 on-duty hours for Geiger during the relevant week of Monday, January 31,
2 Order Granting Summary Decision at 2.
3 Id. at 2.
4 Id.
5 Complainant’s Brief on Review (Comp. Br.) at 3.
6 The ALJ identified a discrepancy between the parties whether Complainant sent the
text to Stabler or to Mertz. Order Granting Summary Decision at 2 n.8. The ALJ noted that
the precise recipient was not material to the claim. In the light most favorable to
Complainant, we follow Complainant’s declaration and Complainant’s Memorandum of
Points and Authorities in Opposition to Respondents’ Motion for Summary Decision. Id.
7 Id. at 3.
8 Id.
9 Id.
10 Id.

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2022, through Friday, February 4, 2022.11 Geiger operated seven days per week,
and its drivers were subject to the 70-hour rule.12
Following Complainant’s refusal, Mertz and Stabler discussed the matter,
as well as his previous refusal to perform future snow removal, and decided on
February 4 to terminate Complainant’s employment.13 Complainant’s next
scheduled workday was February 7, 2022.14 On that date, Stabler informed
Complainant that his employment was terminated.15 The Employee Termination
Form listed the reason for termination as: “[Mertz] needed Cody to move equipment
to Terre Haute on 2/5/22 and Cody said he doesn’t for Geiger on weekends. Cody
also text[ed Stabler] on 2/3/22 and stated he will no longer help with snow
removal.”16 During the February 7 meeting, Complainant told Stabler that he
refused the Terre Haute assignment because he believed he did not have sufficient
available hours to complete the trip.17
On February 9, 2022, Complainant filed a complaint with OSHA alleging
that Respondents retaliated against him in violation of the STAA.18 On January 31,
2023, OSHA issued Secretary’s Findings concluding that there was no reasonable
cause to believe a violation occurred and dismissed the complaint.19 Complainant
filed objections to the Secretary’s Findings and requested a hearing before the Office
of Administrative Law Judges (OALJ).20
On February 26, 2024, Respondents filed a Motion for Summary Decision and
a Memorandum in Support of Summary Decision.21 On March 12, 2024,
Complainant filed a Memorandum of Points and Authorities in Opposition to
11 Id.
12 Id. at 10 n.20.
13 See id. at 10, 10 n.22; Respondents’ Designation of Evidence and Table of Contents
in Support of Summary Decision, Exhibits (Exs.) A-B; see also Order Granting Summary
Decision at 2 (Stabler decided to terminate Complainant’s employment on February 3 after
receiving notice of the snow plow text).
14 See Order Granting Summary Decision at 3; Comp. Br. at 3-4.
15 Order Granting Summary Decision at 3.
16 Complainant’s Memorandum of Points and Authorities in Opposition to
Respondents’ Motion for Summary Decision, Ex. C at 1.
17 Order Granting Summary Decision at 3.
18 Id. at 1.
19 Id.
20 Id.
21 Id.

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Respondents’ Motion for a Summary Decision.22 On April 5, 2024, the ALJ granted
Respondents’ Motion for Summary Decision concluding that, although Complainant
established that he suffered an adverse employment action, he failed to establish a
genuine issue of material fact that he engaged in protected activity under the
STAA.23 The ALJ further determined, in the alternative, that even if Complainant
had engaged in protected activity, he failed to establish a genuine issue of material
fact that such activity was a contributing factor in his termination.24
Complainant filed a timely petition for review with the Board. Both parties
filed briefs.
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated authority to the ARB to review appeals
from ALJ decisions and to issue agency decisions in cases arising under the STAA.25
The Board reviews an ALJ’s grant of summary decision de novo, the same standard
the ALJ applies.26
DISCUSSION
The STAA’s whistleblower protection provision provides that a person may
not discharge, discipline, or discriminate against an employee regarding his pay,
terms, or privileges of employment because the employee has engaged in statutorily
protected activity.27 To prevail on a STAA claim, a complainant must prove by a
preponderance of the evidence that: (1) he engaged in protected activity;
(2) the employer took adverse employment action against him; and (3) the protected
22 Id. at 2.
23 Id. at 11.
24 Id.
25 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. 13186 (Mar. 6, 2020).
26 Robles v. Mr. Bults, Inc., ARB No. 2025-0058, ALJ Nos. 2025-STA-00050, -00051,
-00052, slip op. at 3 (ARB Feb. 20, 2026) (citing Kirschmann v. Hampton Rds. Transit, ARB
No. 2023-0002, ALJ No. 2021-NTS-00006, slip op. at 6 (ARB Feb. 14, 2024)).
27 49 U.S.C. § 31105(a)(1); see also 29 C.F.R. § 1978.102(a). STAA complaints are
governed by the legal burdens of proof set forth in the employee protection provisions of the
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21).
49 U.S.C. § 31105(b)(1); 49 U.S.C. § 42121(b).

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activity was a contributing factor in the adverse employment action.28 If the
employee meets his burden of proof, the employer may avoid liability by proving by
clear and convincing evidence that it would have taken the same unfavorable action
in the absence of the protected activity.29
The ALJ issued an Order Granting Summary Decision concluding that
Complainant failed to establish a genuine issue of material fact that he engaged in
protected activity under the STAA.30 As to Complainant’s February 4 refusal to
drive to Terre Haute, the ALJ found that Complainant’s text message reply of “I am
not [available]” did not constitute a protected complaint or refusal because it offered
no explanation that the drive would constitute an actual or a perceived safety
violation or that the refusal was based on a reasonable apprehension of serious
injury.31 Instead, the ALJ concluded that unexplained refusal was analogous to a
“silent departure” as it failed to put Respondents on notice of any protected
activity.32
Additionally, assuming arguendo, that Complainant had engaged in
protected activity, the ALJ concluded in the alternative that Complainant failed to
establish a genuine issue of material fact that any protected activity was a
contributing factor in the decision to terminate his employment. Specifically,
the ALJ found that Respondents terminated Complainant’s employment for non-
retaliatory reasons33 and Stabler and Mertz were not aware of any actual or
perceived violations when they discussed and decided to terminate Complainant’s
employment on February 4 for refusing snow removal assignments and the Terre
Haute assignment.34
Complainant argues on appeal that the ALJ erred in his protected activity
analysis.35 Specifically, Complainant contends that the ALJ failed to consider the
full scope, timing, and context of his alleged protected activity as well as whether
28 49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R. § 1978.109(a); Halliday v. Transp. Express,
Inc., ARB No. 2023-0024, ALJ No. 2020-STA-00067, slip op. at 12 (ARB Oct. 7, 2024)
(citations omitted).
29 49 U.S.C. § 42121(b)(2)(B)(iv); 29 C.F.R. § 1978.109(b); Halliday, ARB No. 2023-
0024, slip op. at 12 (citations omitted).
30 Order Granting Summary Decision at 9.
31 Id.
32 Id.
33 Id. at 10-11.
34 Id. at 10.
35 Comp. Br. at 9.

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additional conduct not addressed by the ALJ qualified as protected activity.36
Complainant further argues that the ALJ erred in his contributing factor analysis
by failing to consider all instances of protected activity, improperly assessing
Respondents’ knowledge of such activity, and overlooking circumstances relevant to
causation, including Complainant’s ordinary work schedule and part-time
employment commitments.37
Upon consideration of the parties’ briefs on appeal and review of the record as
a whole, we conclude that the ALJ appropriately granted summary decision.
1. Protected Activity
We agree with the ALJ that Complainant’s refusal of the Terre Haute
assignment did not constitute protected activity because at the time of the refusal,
Complainant provided no explanation, and the surrounding circumstances did not
indicate to Respondents that the refusal was based on an actual or perceived safety
or regulatory violation.38 Rather, Complainant’s February 4 text message only
communicated an unwillingness to accept the assignment. Following both refusals,
Respondents decided on February 4 to terminate Complainant’s employment before
his next scheduled workday and informed him of that decision on February 7.39 We
36 Id. at 9-12.
37 Id. at 12-16. Complainant also avers that the ALJ erred by reaching alternate
findings on Respondents’ affirmative defense. Id. at 16-18. This argument is misguided as
the ALJ did not address or analyze whether Respondents would have taken the same action
absent protected activity. Order Granting Summary Decision at 11.
38 A refusal must convey enough context to put the respondent on notice that it is
grounded in a perceived violation. See cf. Calhoun v. U.S. Dep’t of Lab., 576 F.3d 201, 213
(4th Cir. 2009) (internal quotations and citations omitted) (“[H]owever broadly we construe
the statute, [c]learly there is a point at which an employee’s concerns and comments are too
generalized and informal to constitute” protected activity under the STAA.); DeTie v.
Transwood, Inc., ARB No. 2024-0041, ALJ No. 2022-STA-00038, slip op. at 9 n.57 (ARB
Mar. 25, 2026) (noting that while Calhoun’s language concerned the STAA’s complaint
clause, the same logic follows for the refusal clause).
39 Complainant argues on appeal that prior to being told his employment was
terminated, he engaged in protected activity on February 7, 2022, when he informed
Respondent that he would not have had enough hours to take the trip Respondent assigned
to him. We disagree that there is a genuine issue of material fact that he engaged in
protected activity in making this statement. While complaining of a lack of hours with
respect to an assignment may constitute protected activity under STAA, it is undisputed
that Complainant had enough hours as of the assignment on February 4. Order Granting
Summary Decision at 10. Complainant reasons after the fact that he would not have had
enough hours to take the Terre Haute assignment, but this was only after he completed the
work for the other employer. Comp. Br. at 11-12.

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agree. Accordingly, we conclude that the ALJ did not commit reversible error in
granting summary decision for Respondents. Regarding Complainant’s refusal to
perform snow removal, he argues on appeal that it should constitute protected
activity.40 However, this appears to be a new protected activity claim raised for the
first time on appeal. Generally, the Board does not consider arguments raised for
the first time on appeal and we will not consider it here.41
2. Causation
We also agree with the ALJ that even assuming Complainant engaged in
protected activity, he failed to raise a genuine issue of material fact that such
activity was a contributing factor in his termination. As recognized in the Order
Granting Summary Decision, Respondent terminated Complainant’s employment
for legitimate, non-discriminatory reasons—specifically, his refusal to perform snow
removal assignments and the Terre Haute assignment. Finally, there is no genuine
issue of material fact that Respondents decided to terminate Complainant’s
employment before the February 7 communication42—therefore causation cannot be
proven as a matter of law.43 It is a central to the concept of causation, that for an act
to cause an outcome, the act must occur first.
40 Comp. Br. at 10.
41 Kossen v. Asia Pac. Airlines, ARB No. 2023-0047, ALJ No. 2023-AIR-00001, slip op.
at 7 n.32 (ARB May 30, 2025) (citing Xia v. Lina T. Ramey & Assocs., Inc., ARB No. 2023-
0046, ALJ No. 2022-LCA-00013, slip op. at 21-22 n.117 (ARB Oct. 7, 2024)).
42 See supra note 17 and accompanying text and note 41.
43 See DeTie v. Transwood, Inc., ARB No. 2024-0041, ALJ No. 2022-STA-00038, slip op.
at 9 (ARB Mar. 25, 2026) (“For one action to be ‘because’ of the other, a communication of
the refusal is necessary.”) (citations omitted).

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CONCLUSION
For the reasons stated above, we summarily AFFIRM the ALJ’s Order
Granting Summary Decision. Accordingly, Complainant’s complaint is DENIED.
SO ORDERED.
THOMAS H. BURRELL
Administrative Appeals Judge
PHILIP G. KIKO
Administrative Appeals Judge