Oyola v. Washington Metropolitan Area Transit Authority

U.S. Department of Labor 	Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
KENDRICK OYOLA,
COMPLAINANT,
v.
WASHINGTON METROPOLITIAN
AREA TRANSIT AUTHORITY
(WMATA),
RESPONDENT.
ARB CASE NO. 2025-0048
ALJ CASE NO. 2024-NTS-00001
ALJ DANA ROSEN
DATE: May 29, 2026
Appearances:
For the Complainant:
Kendrick Oyola; Pro Se; Munster, Indiana
For the Respondent:
J. 	Clay 	Rollins, 	Esq. 	and 	Savannah 	L. 	McDonald, 	Esq.; 	Ogletree,
Deakins, 	Nash, 	Smoak 	& 	Stewart, 	P.C.; 	Washington, 	District 	of
Columbia
Before BURRELL and KIKO, Administrative Appeals Judges
DECISION AND ORDER VACATING AND REMANDING
This case arises under the National Transit Systems Security Act (NTSSA)
and its implementing regulations,0F
1 as well as the Patient Protection and Affordable
Care Act (ACA) and its implementing regulations.1F
2 On March 15, 2019, Kendrick
Oyola (Complainant) filed a complaint with the Department of Labor’s (DOL)
Occupational Safety and Health Administration (OSHA), alleging that Washington
1 	6 U.S.C. § 1142; 29 C.F.R. Part 1982 (2025).
2 	29 U.S.C. § 218c; 29 C.F.R. Part 1984 (2025).

2
Metropolitan Area Transit Authority (Respondent) retaliated against him in
violation of the NTSSA.2F
3 On November 16, 2020, Complainant amended his claim to
include alleged retaliation under the ACA.3F
4 On September 27, 2023, OSHA
dismissed the complaint and made several determinations including that
Complainant’s ACA claim was untimely and that there was insufficient evidence to
establish a violation under the NTSSA.4F
5
Complainant filed objections with the Office of Administrative Law Judges
(OALJ) and requested a hearing before an Administrative Law Judge (ALJ).5F
6
COn February 24, 2025, Complainant filed a Motion to File a Point of Order.6F
7 In the
motion, Complainant argued that a change of venue was reasonable, but requested
that the ALJ “hold off on ruling until he” filed for a change of venue because he
wanted “the case to remain under DOL authority” and did not “want to enter a
‘Kick-Out’ program . . . .”7F
8 Despite this, on March 18, 2025, the ALJ issued an Order
dismissing the complaint with prejudice.8F
9 Complainant filed a Motion for
Reconsideration, contending that the ALJ prematurely dismissed the case and
asserting that his intent was to outline the conditions to evaluate and fulfill prior to
formally changing venue.9F
10 On April 23, 2025, the ALJ denied Complainant’s
motion, restating that Complainant had demonstrated “good cause to grant the
Motion for Change of Venue” and that the requirements of 29 C.F.R. §§ 1982.114(a)
and (c) were satisfied and concluding that “[u]pon review of the file and the
3 	Order Granting Complainant’s Motion to Change Venue and Order Dismissing with
Prejudice so Complainant May Remove for Change of Venue (Order) at 2.
4 	OSHA Determination Letter at 1.
5 	Id. at 2.
6 	Order at 2.
7 	Id. at 1. Although the ALJ referenced several times that Complainant filed a
“Motion to Change Venue,” it does not appear that Complainant filed a Motion to Change
Venue. Indeed, Complainant specifically requested that the ALJ not make any ruling
regarding venue “until he files a Motion for a Change of Venue.” Complainant’s Motion to
File a Point of Order at 9.
8 	Complainant’s Motion to File a Point of Order at 9.
9 	Order at 1. The ALJ did not address Complainant’s ACA claim.
10 	Complainant’s Motion for Reconsideration and Clarification of Order Granting
Change of Venue at 1.

3
arguments made, Complainant would be best served with his initial intention to
pursue his complaint before the U.S. District Court.”10F
11
Complainant petitioned the Administrative Review Board (Board) to review
the ALJ’s Order. Both parties filed briefs.
The Secretary of Labor has delegated to the Board the authority to issue final
agency decisions in review or on appeal of matters arising under the NTSAA and
the ACA.11F
12 The Board will affirm the ALJ’s factual findings if supported by
substantial evidence, but reviews conclusions of law de novo.12F
13
The NTSSA provides:
[I]f the Secretary of Labor has not issued a final decision
within 210 days after the filing of the complaint and if the
delay is not due to the bad faith of the employee, the
employee may bring an original action at law or equity for
de novo review in the appropriate district court of the
United States, which shall have jurisdiction over such an
action without regard to the amount in controversy, and
which action shall, at the request of either party to such
action, be tried by the court with a jury. [13F
14]
To comply with the NTSSA “kick-out” or removal regulations, Complainant
must file a copy of the federal court complaint with the ALJ or the Board, as
appropriate, within seven days of filing.14F
15
11 	Order Denying Complainant’s Motion for Reconsideration (Order Denying
Reconsideration) at 1-2.
12 	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).
13 	Harte v. Metro. Transp. Auth., ARB No. 2017-0002, ALJ No. 2015-NTS-00002,
slip op. at 3 (ARB Aug. 20, 2019), reissued with corrections, ARB No. 2017-0002 (Sept. 6,
2019).
14 	6 U.S.C. § 1142(c)(7); see also 29 C.F.R. § 1982.114(a).
15 	29 C.F.R. § 1982.114(c).

4
The ACA sets forth a similar kick-out mechanism:
If the Secretary has not issued a final decision within 210
days after the filing of the complaint, or within 90 days
after receiving a written determination, the complainant
may bring an action at law or equity for de novo review in
the appropriate district court of the United States with
jurisdiction, which shall have jurisdiction over such an
action without regard to the amount in controversy, and
which action shall, at the request of either party to such
action, be tried by the court with a jury. [15F
16]
As with the NTSSA, if the complainant elects to kick out to federal district
court under this provision, he must file a copy of the federal court complaint with
the ALJ or the Board, as appropriate, within seven days of filing.16F
17
Complainant argues that the ALJ prematurely dismissed his case and
asserts that he neither filed in district court nor intended to opt out of the
administrative proceedings.17F
18 He requests that the Board vacate the ALJ’s Order.18F
19
We conclude the NTSSA and ACA kick-out requirements were not satisfied.
Complainant did not “bring an action at law or equity for de novo review in” district
court regarding his NTSSA or ACA whistleblower claims. The ALJ did not find that
Complainant filed a copy of a federal court complaint, nor does the record support
16 	15 U.S.C. § 2087(b)(4) (incorporated by 29 U.S.C. § 218c(b)(1)); see also 29 C.F.R.
§ 1984.114(a).
17 	29 C.F.R. § 1984.114(c).
18 	Complainant’s Petition for Review at 2-3.
19 	Id. at 5.

5
that Complainant filed his whistleblower complaint in federal court.19F
20 Significantly,
Complainant expressly stated in his Motion to File a Point of Order that he wanted
“the case to remain under DOL authority” and that he did “not want to enter a
‘Kick-Out’ program.”20F
21 Thus, the ALJ erred in dismissing Complainant’s complaint
with prejudice.
Complainant also requests that his case be remanded to OSHA to address his
procedural and concerns with the investigation.21F
22 Neither the Board nor the ALJ
has the authority to remand a complaint to OSHA.22F
23 Rather, an ALJ reviews a
complaint de novo and “will hear the case on the merits or dispose of the matter
without a hearing if the facts and circumstances warrant.”23F
24 Thus, Complainant’s
request to remand to OSHA is denied.
20 	Order at 1-3, Order Denying Reconsideration at 1-3. On November 10, 2023,
Complainant filed a Petition for Writ of Mandamus in the Court of Appeals for the D.C.
Circuit requesting the Court force OSHA to schedule a field investigation. On September
25, 2024, the D.C. Circuit dismissed Complainant’s petition in part and denied in part
because of a lack of jurisdiction and because Complainant had alternative remedies of
exhausting the administrative process and then appealing the final agency action.
Respondent contends that Complainant’s petition demonstrated his “interest in pursuing
his claims in another venue.” Respondent’s Br. at 3. However, Complainant’s Petition for
Writ of Mandamus did not bring an action to review his NTSSA or ACA claims de novo.
On March 19, 2025, Complainant filed a Petition for Emergency Review in the U.S. Court of
Appeals for the D.C. Circuit, challenging the ALJ’s Order. On June 12, 2025, the U.S. Court
of Appeals for the D.C. Circuit denied the petition, stating that Complainant had
alternative remedies of completing the administrative process and appealing the final
agency decision.
21 	Motion for Point of Order at 9.
22 	Complainant’s Petition for Review at 3-5.
23 	See 29 C.F.R. §§ 1982.109(c) and 1982.110.
24 	29 C.F.R. § 1982.109(c).

6
Accordingly, we vacate the ALJ’s Order dismissing Complainant’s complaint
with prejudice, and remand the matter to the ALJ for further proceedings.
SO ORDERED.
THOMAS H. BURRELL
Administrative Appeals Judge
PHILIP G. KIKO
Administrative Appeals Judge