Bush v. Donato’s Pizza

U.S. Department of Labor 	Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
CHRISTOPHER BUSH,
COMPLAINANT,
v.
DONATO’S PIZZA,
RESPONDENT.
ARB CASE NO. 2024-0009
ALJ CASE NO. 2022-TAX-00006
ALJ WILLOW EDEN FORT
DATE: December 30, 2025
Appearances:
For the Complainant:
Christopher Bush; Pro Se; Midway, Kentucky
For the Respondent:
Matthew T. Lockaby, Esq., and John Ghaelian, Esq.; Lockaby PLLC;
Lexington, Kentucky
Before JOHNSON, Chief Administrative Appeals Judge, and BURRELL,
and KIKO, Administrative Appeals Judges; Judge Burrell, concurring
DECISION AND ORDER
This case arises under the employee protection provisions of the Taxpayer
First Act of 2019 (TFA or Act) and its implementing regulations.0F
1 Complainant
Christopher Bush filed a complaint with the U.S. Department of Labor’s
Occupational Safety and Health Administration (OSHA) alleging that Respondent
Donato’s Pizza unlawfully retaliated against him for engaging in protected activity.
On November 21, 2023, a United States Department of Labor Administrative Law
Judge (ALJ) issued an Order Granting Summary Decision in Favor of Respondent.
1 	26 U.S.C. § 7623(d); 29 C.F.R. Part 1989 (2025).

2
Complainant petitioned the Administrative Review Board (ARB or Board) for
review of the ALJ’s Order. For the following reasons, we affirm.
B ACKGROUND
Complainant was employed as a delivery driver for Respondent from
September 30, 2015, until February 23, 2019, when Respondent terminated his
employment.1F
2
On July 2, 2019, Complainant filed a complaint with the Equal Employment
Opportunity Commission (EEOC) alleging age discrimination violations by
Respondent, including his termination.2F
3 On June 29, 2021, the EEOC closed its
investigation without any findings and issued a Dismissal and Notice of Rights.3F
4
Complainant did not file a lawsuit against Respondent following this decision.
Instead, on or about September 27, 2021,4F
5 Complainant filed a complaint with the
Internal Revenue Service (IRS) alleging violations of federal tax law by Respondent.
Then, on October 6, 2021, Complainant sent a letter to Respondent stating the
following:
2 	See Order Granting Summary Decision in Favor of Respondent; Order of Dismissal
(Order Granting Summary Decision) at 4-5; Order Upon Pleadings at 10; Respondent’s
Memorandum of Points and Authorities in Support of its Motion for Summary Decision
(Respondent’s Memorandum) at 2.
3 	Respondent’s Memorandum at 3, Exhibit (Ex.) 5; Supplemental Complaint of Chris
Bush Against Donato’s (Supplemental Complaint), Ex. 5.
4 	Respondent’s Memorandum at 3, Ex. 7.
5 	The record is inconsistent as to the IRS complaint’s filing date. Respondent’s
Memorandum at 3-4, Ex. 8 at 1, notes the filing date as September 27, 2021; Complainant’s
Supplemental Complaint at 5, notes the filing date as “Oct. of 2021”; and the Order
Granting Summary Decision at 6, notes the filing date as October 6, 2021. The ALJ cited to
Supplemental Complaint, Ex. 7 in support of the October 6, 2021, filing date. However, this
exhibit does not corroborate this fact. Exhibit 7 is a letter, dated October 6, 2021, from the
Department of the Treasury to Complainant. The letter informed Complainant that the IRS
received his complaint, assigned him a claim number, and advised him of the investigation
process. The letter does not indicate the date on which Complainant filed the IRS
complaint. Accordingly, given these inconsistencies, the fact that Respondent conceded that
Complainant filed the complaint on September 27, and viewing the evidence in the light
most favorable to Complainant, the Board recognizes September 27 as the IRS complaint
filing date.

3
(1) I have filed a Whistleblower Complaint w/ the IRS re
Donato’s use of Uber Eats Drivers who are Incorrectly as
Independent Contractors instead of Statutory Employees;
(2) Such Whistleblower Complaint also references that
Donato’s Drivers are likewise misclassified as Employees
instead of Statutory Employees; (3) I am seeking my job
back- at the same or higher pay, at the same hours, w/ the
same or higher seniority; my wrongful termination in
February, 2019, was not corroborated by an independent
review of same by the EEOC as being for cause; moreover,
Donato’s did not appeal the finding of the EEOC re same;
(4) Per the Taxpayer First Act of July 1, 2019 (TFA), any
whistleblower complaint lodged after July 1, 2019- where
an 	Employer 	retaliates- 	such 	retaliation 	is 	prohibited
under the TFA; such retaliation would include failure to
hire an employee/former employee and/or a person making
such complaint, per Title 49, which is referenced by the
TFA; the Whistleblower complaint referenced herein was
made after July 1, 2019; (5) If Donato’s fails to rehire me
w/i 5 business days of this letter, I will pursue my rights
accordingly under the TFA. [5F
6]
Respondent did not rehire Complainant.6F
7 On March 21, 2022, Complainant
filed an OSHA complaint alleging that Respondent failed to rehire him in
retaliation for protected conduct under the TFA.7F
8 OSHA dismissed the complaint,
and Complainant filed objections with the Office of Administrative Law Judges
(OALJ).
Before the OALJ, the assigned ALJ issued several procedural orders,
including an Order Upon Pleadings. The Order Upon Pleadings listed several
elements and facts no longer in contest as well as “material allegations made by
Complainant and admitted by Respondent.”8F
9 Following the Order Upon Pleadings,
both parties filed timely motions for summary decision and responses to the
6 	Order Granting Summary Decision at 5 (formatting not in original).
7 	Id.
8 	Id.
9 	Order Upon Pleadings at 3-10.

4
motions.9F
10 On November 21, 2023, the ALJ issued an Order Granting Summary
Decision. On December 21, 2023, Complainant timely filed a Petition for Review
with the Board. For the reasons discussed below, we affirm.
J URISDICTION AND S TANDARD OF REVIEW
The Secretary of Labor has delegated authority to the Board to review
appeals from ALJ decisions and to issue agency decisions in cases arising under the
TFA.10F
11 The Board reviews an ALJ’s grant of summary decision de novo under the
same standard the ALJ applies.11F
12 The Board reviews an ALJ’s procedural rulings
under an abuse of discretion standard.12F
13
D ISCUSSION
1. 	Governing Law
To prevail in a retaliation claim under the TFA, complainants must prove by
a preponderance of evidence that they engaged in protected activity, suffered an
adverse action, and that the protected activity was a contributing factor in the
10 	Order Granting Summary Decision at 1-3. We note that Complainant argues on
appeal that Respondent untimely filed its Motion for Summary Decision. Brief of
Complainant to Administrative Review Board (Comp. Br.) at 35. The record supports that
Respondent timely filed its Motion for Summary Decision on September 15, 2023. Order
Granting Summary Decision at 1. The Motion for Summary Decision was served and
received by the ALJ. For whatever reason, Complainant did not receive the Motion even
though he was listed on the Certificate of Service. On appeal, Complainant has not shown
how he was harmed or prejudiced as the ALJ rectified any issue by providing Complainant
an additional thirty days to respond to the Motion. Order Affording Complainant Thirty
Days From October 12, 2023 to Respond to Respondent’s Motion for Summary Decision,
Order Canceling Hearing at 1-2.
11 	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. § 1989.110(a).
12 	Jahanbin v. The Boeing Co., ARB No. 2024-0035, ALJ No. 2023-AIR-00023, slip op.
at 3-4 (ARB Mar. 13, 2025) (citing Xanthopoulos v. Mercer Inv. Consulting, ARB No. 2022-
0032, ALJ No. 2021-SOX-00017, slip op. at 10 (ARB Sept. 28, 2023)).
13 	Iwaseczko v. Teton Cnty. Weed & Pest Control Dist., ARB No. 2022-0059, ALJ Nos.
2018-ACA-00001, 2019-ACA-00002, slip op. at 16 (ARB Aug. 14, 2025) (citation omitted).

5
adverse action taken against them.13F
14 A contributing factor is any factor, which,
alone or in combination with other factors, affects the outcome of the decision.14F
15
If the employee prevails on the elements of his or her claim, he or she may be
awarded remedies.15F
16 To avoid relief, however, the employer must prove by clear and
convincing evidence that it would have taken the same action absent the employee’s
protected activity.16F
17
For the Complainant’s case in chief, the ALJ resolved all but the contributing
factor element in her Order Upon Pleadings.17F
18 In particular, the ALJ concluded that
it was not disputed that Complainant engaged in protected activity when he
submitted the IRS complaint and informed Respondent of that fact.18F
19 Both parties
moved for summary decision on the contributing factor element.19F
20 The ALJ granted
summary decision in favor of Respondent, concluding that “Complainant cannot
show that their protected activity was a contributing factor in Respondent’s failure
to hire.”20F
21
On appeal, Complainant argues that the ALJ erred in granting summary
decision.21F
22 We carefully considered Complainant’s arguments and conclude they are
without merit or otherwise would not change the outcome. For the following
reasons, we affirm the ALJ’s order granting summary decision in favor of
Respondent.22F
23
14 	26 U.S.C. § 7623(d)(2)(B)(iii) (incorporating 49 U.S.C. § 42121(b)); 29 C.F.R. §
1989.109(a).
15 	Iwaseczko, ARB No. 2022-0059, slip op. at 38 (citing Williams v. QVC, Inc., ARB No.
2020-0019, ALJ No. 2018-SOX-00019, slip op. at 12 (ARB Jan 17, 2023)).
16 	26 U.S.C. § 7623(d)(3); 29 C.F.R. § 1989.109(d)(1).
17 	29 C.F.R. § 1989.109(b).
18 	See Order Upon Pleadings at 9.
19 	Id. at 6.
20 	Order Granting Summary Decision at 1-3.
21 	Id. at 4.
22 	Comp. Br. at 8-21.
23 	We note that the ALJ cited Murray v. UBS Secs., LLC, 43 F.4th 254 (2nd Cir. 2022)
in the Order Granting Summary Decision. Since the Order Granting Summary Decision,
the United States Supreme Court reversed the Second Circuit Court of Appeals’ holding
requiring a complainant to make a showing that their employer acted with “retaliatory
intent” to satisfy the contributing factor element. Murray v. UBS Secs., LLC, 601 U.S. 23
(2024). As we only affirm the ALJ’s conclusion that Complainant’s protected activities were

6
2. 	Summary Decision Standard
Summary decision is appropriate where “there is no genuine dispute as to
any material fact and the movant is entitled to decision as a matter of law.”23F
24
In considering a motion for summary decision, the Board views the evidence and
makes all reasonable inferences in the light most favorable to the non-moving
party.24F
25 If the moving party demonstrates an absence of evidence supporting the
non-moving party’s position, the burden shifts to the non-moving party to establish
the existence of a genuine issue of material fact that could affect the outcome of
litigation.25F
26 The non-moving party may not rest upon mere allegations, speculation,
or denials, but must instead set forth specific facts on each issue upon which the
non-moving party would bear the ultimate burden of proof.26F
27 If the non-moving
party fails to show an essential element to their case, there can be no “genuine issue
as to any material fact,” since a complete failure of proof concerning an essential
element necessarily renders all other facts immaterial.27F
28
3. 	Contributing Factor Analysis
Preliminarily, we note that the ALJ’s contributing factor analysis is
awkward. The ALJ determined that Complainant’s complaint with the IRS was not
a bona fide protected activity because by the very terms of Complainant’s letter to
not a contributing factor in the no-rehire decision, if there was any error here, it is
harmless. Appellate courts have recognized that they may affirm on any basis supported by
the record, even if it requires ruling on arguments not reached by the district court or even
presented on appeal. Chongris v. Bd. of Appeals, 811 F.2d 36, 37 n.1 (1st Cir. 1987)
(citations omitted); Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 686 (9th Cir. 2007)
(citation omitted); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011)
(citations omitted); see also S.E.C. v. Chenery Corp., 318 U.S. 80, 88 (1943) (“[I]n reviewing
the decision of a lower court, it must be affirmed if the result is correct although the lower
court relied upon a wrong ground or gave a wrong reason.”) (citation and internal quotation
omitted).
24 	29 C.F.R. § 18.72(a).
25 	Jahanbin, ARB No. 2024-0035, slip op. at 4 (citing Feldman v. Risk Placement
Servs., Inc., ARB No. 2020-0068, ALJ No. 2019-SOX-00052, slip op. at 4 (ARB Sept. 29,
2021)).
26 	Id. (citation omitted).
27 	Id. (citation omitted).
28 	Id. (citation omitted).

7
Respondent, the IRS complaint was to become bona fide only if Respondent did not
meet Complainant’s demand to be rehired within five business days.28F
29 We observe
that the TFA and its implementing regulations require the Complainant to have a
reasonable belief of a violation of relevant law.29F
30 To have a reasonable belief that
there is a violation of relevant law, a complainant must subjectively believe that the
conduct is a violation and that belief must be objectively reasonable.30F
31 Even
assuming arguendo that this was an error by the ALJ, such error was harmless as
we affirm the ALJ’s conclusion that Complainant failed to establish a genuine issue
of material fact that his protected activities were a contributing factor in
Respondent’s no-rehire decision.
A. Temporal proximity and intervening event
Complainants may meet their evidentiary burden for the contributing factor
element with circumstantial evidence.31F
32 Circumstantial evidence may include, but
is not limited to, temporal proximity, inconsistent application of an employer’s
policies, pretext, shifting explanations by the employer, or antagonism.32F
33
Before the ALJ, Complainant relied solely upon the temporal proximity
between his not being rehired by Respondent and the protected activity of
submitting an IRS complaint and informing Respondent of that fact in the October
6, 2021 letter.33F
34 The record clearly demonstrates temporal proximity between the
29 	Order Granting Summary Decision at 6. The ALJ expanded upon this, that the
“bona fide” protected activity “took place only because, and after Respondent refused to
rehire them.” Id. (emphasis original).
30 	29 C.F.R. § 1989.102(b)(1).
31 	Procedures for the Handling of Retaliation Complaints Under the Taxpayer First
Act, 87 Fed. Reg. 12,575, 12,577 (Mar. 7, 2022) (Interim Final Rule). The Department of
Labor issued its Final Rule, which adopted the Interim Final Rule with one technical
change not relevant to this appeal. Procedures for the Handling of Retaliation Complaints
Under the Taxpayer First Act, 88 Fed. Reg. 15,271 (Mar. 13, 2023).
32 	Iwaseczko, ARB No. 2022-0059, slip op. at 38 (citing Williams, ARB No. 2020-0019,
slip op. at 12).
33 	Id. (citation omitted).
34 	Complainant argued that he learned of the TFA sometime in late summer or
September of 2021, and such date was close in time to the IRS complaint and his attempt to
be rehired. Declaration in Support of Motion for Summary Decision at 10. Prior to this
statement, Complainant’s only other reference to “contributing factor” is a word-for-word
excerpt from the Order Upon Pleadings. The excerpt is as follows:

8
alleged protected activities and Respondent’s no-rehire decision, as these events
occurred only days apart. Although the Board recognizes that temporal proximity is
an important part of a case based on circumstantial evidence, and is often the most
persuasive factor, the causal inference that temporal proximity gives rise to may be
severed by a legitimate intervening event, especially one undertaken by the
complainant.34F
35
In this case, the content of the October 6 letter operated as both an alleged
protected act35F
36 and an intervening event. On its face, this letter served to notify
Respondent of the IRS complaint and alleged IRC violations. However, upon
reviewing the subsequent terms of this letter, it also included the following
ultimatum—rehire Complainant within five business days or else he would pursue
his rights under the TFA.36F
37 This ultimatum represented an intervening event as it
was a new and independent action on the part of Complainant—a direct demand for
reemployment or face a complaint with OSHA.
Although the Board agrees with Complainant that the TFA does not
expressly deny relief based on “threats” or “demands” directed at an employer,37F
38 the
Board and courts interpreting analogous whistleblower provisions have held that
these protections cannot be used to shield a complainant from the consequences of
their own misconduct or failures.38F
39 Here, Complainant attempted to shield himself
Complainant also pleads that the temporal proximity between
their report to the IRS in October of 2021 and Employer’s failure
to rehire them in that same month show circumstances sufficient
to 	raise 	the 	inference 	that 	their 	protected 	activity 	was 	a
contributing factor in the adverse action.
Id. at 8-9.
35 	Jones v. Exclusive Jets, LLC, ARB No. 2023-0035, ALJ No. 2022-AIR-00003, slip op.
at 16 (ARB Dec. 31, 2024) (citations omitted).
36 	Order Upon Pleadings at 5-6.
37 	Order Granting Summary Decision at 5.
38 	Comp. Br. at 8-16.
39 	Johnson v. Stein Mart, Inc., 440 F.App’x. 795, 803-04 (11th Cir. 2011) (rejecting the
complainant’s attempt to hide behind her protected activity as a means to evade dismissal
for performance-related deficits); Trimmer v. U.S. Dep’t of Lab., 174 F.3d 1098, 1104 (10th
Cir. 1999) (concluding that the complainant could not use his whistleblower status to avoid
the consequences of his inaction in seeking gainful employment); Kahn v. U.S. Sec’y of Lab.,
64 F.3d 271, 279 (7th Cir. 1995) (rejecting the complainant’s attempt to hide behind his
protected activity as a means to evade a non-discriminatory adverse action).

9
from the consequences of his own rehire-demand scheme. As the ALJ stated, “[t]he
TFA does not, however, provide an employee with a means by which to use threats
to force an employer to hire them. The undisputed facts show that was the case
here.”39F
40
B. Complainant was ineligible for rehire
Respondent also reiterates on appeal that Complainant was ineligible for
rehire.40F
41 According to Respondent, Complainant was ineligible for rehire as he was
previously terminated for “act[ing] in a belligerent, insubordinate, disruptive, and
unprofessional manner.”41F
42 Even where a respondent asserts legitimate, non-
discriminatory reasons for its actions, a complainant can create a genuine issue of
fact by pointing to specific facts or evidence that, if believed, could discredit the
respondent’s reasons or show that the protected activity was also a contributing
factor even if the respondent’s reasons are true.42F
43 Apart from asserting that he was
not terminated for cause in February 2019,43F
44 Complainant provides no specific facts
or evidence that create a genuine issue of fact that his alleged protected activities
contributed to Respondent’s no-rehire decision and/or would discredit Respondent’s
explanation that Complainant was ineligible for rehire.44F
45 Complainant may not rely
on his whistleblower status to avoid an adverse action imposed for legitimate, non-
discriminatory reasons.
40 	Order Granting Summary Decision at 6.
41 	Respondent’s Response Brief at 5 n.2.
42 	Id.; see Respondent’s Memorandum at 3, 13-15, Exs. 1, 3-4.
43 	Armstrong v. Flowserve US, Inc., ARB No. 2014-0023, ALJ No. 2012-ERA-00017, slip
op. at 7 (ARB Sept. 14, 2016) (citing Trimmer, 174 F.3d at 1011).
44 	Comp. Br. at 18-19. Complainant alleges that he was not terminated for cause but
instead was terminated because he informed Respondent that they were filing fraudulent
W-2 Federal Wage and Tax Statements in 2019. Id.
45 	See, e.g., Saporito v. Exelon Generation Co., LLC, ARB No. 2012-0034, ALJ No.
2010-ERA-00012, 2013 WL 4715034, at *7 (ARB Aug. 22, 2013) (holding that complainant
provided no evidence refuting the company’s showing that hiring officials decided to only
consider internal applicants and students for the open technician position); see also Levi v.
Anheuser Busch Cos., Inc., ARB No. 2008-0086, ALJ No. 2008-SOX-00028, slip op. at 6
(ARB Sept. 25, 2009) (holding that the complainant was unable to offer evidence showing
that he was not hired because of his protected activity).

10
C ONCLUSION
For the reasons stated above, we AFFIRM the ALJ’s Order Granting
Summary Decision.45F
46 Accordingly, Complainant’s complaint is DENIED.
SO ORDERED.
RANDEL K. JOHNSON
Chief Administrative Appeals Judge
PHILIP G. KIKO
Administrative Appeals Judge
BURRELL, Administrative Appeals Judge, concurring:
I concur with the panel affirming the ALJ’s Order Granting Summary
Decision. I write separately to highlight a few points about the Complainant’s
theory of the case and how it intersects with traditional legal concepts relevant to
the ALJ’s Order.
As the majority opinion lays out, Complainant was terminated for cause in
February 2019.46F
47 On July 2, 2019, he filed a complaint against Respondent with the
EEOC alleging age discrimination. The EEOC closed the case on June 29, 2021.47F
48
46 	As mentioned earlier in this Decision and Order, we carefully considered
Complainant’s other arguments, including but not limited to: the ALJ erred by holding that
OALJ does not have jurisdiction over IRS investigations, the ALJ violated Complainant’s
due process and equal protection rights, and the ALJ abused her discretion in accepting
Respondent’s “untimely” Motion for Summary Decision. Comp. Br. at 22-43. Because
Complainant failed to show an essential element of his claim, these other arguments are
moot, and we decline to make any determination on those arguments
47 	Supra note 2.
48 	Supra notes 3-4.

11
In October 2021, roughly two months after the EEOC resolution but more
than two-and-half years after his termination, Complainant attempted to regain
employment with Respondent under a scheme arising under the TFA.48F
49 The TFA
was enacted on July 1, 2019, and became effective that day.49F
50 Because Complainant
was fired several months before the TFA was enacted, he could not pursue his
termination for cause under the TFA directly. Complainant bypassed that
presumption against retroactivity by seeking a rehire on October 6, 2021, which
Respondent foreseeably denied.50F
51 Thereafter, Complainant sued under the adverse
action of “failure to rehire,” which is timely under the TFA.51F
52
Under the TFA’s statutory and regulatory framework, Complainant, though
he was fired for cause, is not prohibited from seeking reemployment and suing for
being denied reemployment under a “failure to rehire” theory of the case.52F
53 The
TFA, along with many whistleblower statutes, protects employees from retaliation
by former and prospective employers. “Employee” is defined as “an individual
presently or formerly working for, an individual applying to work for, or an
individual whose employment could be affected by, another person.”53F
54 “Person”
broadly includes individuals and corporations (employers).54F
55 Under 29 C.F.R. §
1989.102(a):
49 	Taxpayer First Act, Pub. L. 116-25, §1405(b), 133 Stat. 981, 997-98 (2019) (codified
at 26 U.S.C. § 7623(d)).
50 	Id. § 1001(e)(1).
51 	Supra notes 6-7. Courts construe laws as prospective in application unless Congress
has unambiguously instructed retroactivity. See Landgraf v. USI Film Prods., 511 U.S. 244,
264 (1994).
52 	26 U.S.C. § 7623(d)(2)(B)(iv) (“A complaint under subparagraph (A)(i) shall be filed
not later than 180 days after the date on which the violation occurs.”); supra note 8
(Complainant’s complaint filed with OSHA on March 21, 2022).
53 	Under a failure to hire theory, a successful complainant must establish: (1) that he
applied and was qualified for a job for which the employer was seeking applicants; (2) that,
despite his qualifications, he was rejected; and (3) that, after his rejection, the position
remained open and the employer continued to seek applicants from persons of
complainant’s qualifications. Levi, ARB No. 2008-0086, slip op. at 5 (citations omitted).
54 	29 C.F.R. § 1989.101.
55 	Id.

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No employer . . . may discharge, demote, suspend, threaten,
harass, or in any other manner retaliate against, including,
but 	not 	limited 	to, 	intimidating, 	restraining, 	coercing,
blacklisting, or disciplining, an employee in the terms and
conditions of employment in reprisal for the employee
having 	engaged 	in 	any 	of 	the 	activities 	specified 	in
paragraphs (b)(1) and (2) of this section.
The ability of a former employee fired for cause to unsuccessfully litigate the
termination and then turn around and litigate a failure to rehire is a paradox as it
effectively gives a complainant a second bite of the apple. In his failure to rehire
litigation, Complainant before the ALJ and on appeal argued for a hearing with the
express purpose of relitigating his termination for cause.55F
56
Complainant’s efforts are similar to a model occasionally pursued by litigants
in whistleblower cases. In the nuclear safety field, a complainant, Syed Hasan,
pursued several cases against prospective and former employers under the Energy
Reorganization Act.56F
57 Over the course of decades, Hasan sent resumes and
56 	Comp. Br. at 16, 18-19, 21.
57 	See, e.g., Hasan v. Sargent & Lundy, ARB No. 2003-0030, ALJ No. 2000-ERA-00007
(ARB July 30, 2004), aff’d sub nom., Hasan v. U.S. Dep’t of Lab., 400 F.3d 1001 (7th Cir.
2005); Hasan v. Stone & Webster Eng’rs & Constructors, Inc., ARB No. 2003-0058, ALJ No.
2000-ERA-00010 (ARB June 27, 2003), aff’d sub nom., Hasan v. Sec’y of Lab., No. 03-1981,
2004 WL 574520 (1st Cir. Mar. 24, 2004); Hasan v. J.A. Jones, Inc., ARB No. 2002-0121,
ALJ No. 2002-ERA-00018 (ARB June 25, 2003), aff’d sub nom., Hasan v. U.S. Dep’t of Lab.,
No. 03-1852, 2004 WL 1539635 (4th Cir. July 9, 2004); Hasan v. J.A. Jones, Inc., ARB No.
2002-0123, ALJ No. 2002-ERA-00005 (ARB June 25, 2003), aff’d sub nom., Hasan v. U.S.
Dep’t of Lab., No. 03-15469, 2004 WL 1121580 (11th Cir. May 11, 2004); Hasan v. Fla.
Power & Light Co., ARB No. 2001-0004, ALJ No. 2000-ERA-00012 (ARB May 17, 2001),
aff’d sub nom., Hasan v. U.S. Dep’t of Lab., No. 01-12953, 2002 WL 833328 (11th Cir. Apr.
11, 2002); Hasan v. Wolfe Creek Nuclear Operating Corp., ARB No. 2001-0006, ALJ No.
2000-ERA-00014 (ARB May 31, 2001), petition denied sub nom., Hasan v. U.S. Dep’t of
Lab., 298 F.3d 914 (10th Cir. 2002); Hasan v. Commonwealth Edison Co., ARB Nos. 2001-
0002, -0003, -0005, ALJ Nos. 2000-ERA-00008, -00011, -00013 (ARB Apr. 23, 2001), aff’d
sub nom., Hasan v. U.S. Dep’t of Lab., No. 01-1130, -1131, -2177, 2002 WL 448410 (7th Cir.
Mar. 19, 2002); Hasan v. Burns & Roe Enters., Inc., ARB No. 2000-0080, ALJ No. 2000-
ERA-00006 (ARB Jan. 30, 2001), aff’d sub nom., Hasan v. U.S. Sec’y of Lab., No. 01-1322,
2004 WL 1055257 (3d Cir. Apr. 23, 2004); Hasan v. Intergraph Corp., ARB Nos. 1997-0016,
-0051, ALJ Nos. 1996-ERA-00017, -00027 (ARB Aug. 6, 1997), aff’d sub nom., Hasan v. Dir.,
Admin. Rev. Bd., U.S. Dep’t of Lab., 180 F.3d 269 (11th Cir. Apr. 15, 1999); Hasan v.
Commonwealth Edison Co., ARB No. 2000-0028, ALJ No. 2000-ERA-00001 (ARB Dec. 29,

13
applications to former or prospective employers, and when he was not hired, he filed
a claim of whistleblower retaliation.57F
58 Ensuring that his prospective employers were
aware of his prior whistleblowing activity, he expressly informed the employers of
this fact in his applications. This process was repeated multiple times with several
employers. While Hasan’s litigation against one employer was pending, Hasan filed
applications with a different prospective employer, repeating the process of
informing them that he was a whistleblower in the application and entreating them
not to retaliate against his application for that reason. In a case against Sargent &
Lundy, Hasan sued Sargent and Lundy for failing to hire him after he applied.
During the litigation, Hasan filed another application for employment with Sargent
and Lundy. Again, he was not hired. Hasan then filed another OSHA complaint
claiming retaliation for that non-rehire.58F
59
Complainant’s claim fits this mold. On October 6, he informed Respondent of
his protected activity with the IRS and the TFA’s protection of former employees
against retaliation in re-employment. He then demanded to be rehired with a threat
of the consequences if he was not rehired.59F
60
These cases present a special situation that requires close scrutiny on the
part of the factfinder. Notwithstanding the dynamics of the original termination
decision and litigation, a complainant may be able to repackage a deficient case into
a much more complex case in the form of failure to rehire.60F
61 In addition to bypassing
2000), aff’d sub nom., Hasan v. U.S. Dep’t of Lab., Nos. 01-1130, -1131, -2177, 2002 WL
448410 (7th Cir. Mar. 19, 2002).
58 	Hasan v. Enercon Servs., Inc., ARB No. 2004-0045, ALJ No. 2003-ERA-00031 (ARB
May 18, 2005); Hasan v. Enercon Servs., Inc., ARB No. 2005-0037, ALJ Nos. 2004-ERA-
00022, -00027 (ARB May 29, 2009); Hasan v. Enercon Servs., Inc., ARB No. 2012-0096, ALJ
Nos. 2004-ERA-00022, -00027 (ARB Mar. 14, 2013), petition denied sub nom., Hasan v. U.S.
Dep’t of Lab., No. 13-1886, 553 F.App’x. 135 (3d Cir. Jan. 30, 2014); Hasan v. Enercon
Servs., Inc., ARB No. 2012-0063, ALJ No. 2012-ERA-00003 (ARB Aug. 20, 2013).
59 	Hasan v. Sargent & Lundy, ARB No. 2005-0099, ALJ No. 2002-ERA-00032, slip op.
at 2-3 (ARB Aug. 31, 2007).
60 	Supra note 6.
61 	Rehire cases may also be abused in the context of remedies. In Johnson v. Union
Pac. R.R., the plaintiff sued the employer and obtained a large judgment under Federal
Employers Liability Act (FELA) for physical pain and suffering, past and future; mental
pain and suffering, past and future; permanent disability; loss of employment of life; past
lost wages; future lost earning capacity and fringe benefits; unpaid past medical expenses;
and future life care needs and medical expenses of life expectancy. Johnson v. Union Pac.
R.R. Co., ARB No. 2021-0041, ALJ No. 2019-FRS-00005, slip op. at 2 (ARB Jan 25, 2022).

14
nonretroactivity, a complainant can rehabilitate an untimely case following
termination for cause into a timely failure to rehire. Theoretically, the protected
activity in the second timely failure to rehire case is the unsuccessful untimely
termination litigation in the prior complaint. Under the same reasoning, a
complainant with no protected activity in litigation 1 may convert his unsuccessful
case into one with protected activity in litigation 2, failure to hire. The fact that he
filed a claim in litigation 1 itself may constitute protected activity in litigation 2
even if that adjudication in litigation 1 resulted in a dismissal for lack of protected
activity.61F
62
A rehire case may also change causation dynamics as compared with the
initial litigation. Traditional legal adjudication credits temporal proximity as
circumstantial evidence creating an inference of causation. In certain cases, courts
deem this inference sufficient to avoid summary decision.62F
63 In contrast to the facts
of the original termination decision, an adverse rehire decision may be temporally
proximate with protected activity. On a case-by-case basis, a factfinder may decide
the failure to hire case has to go to hearing or the employer must defend its decision
under the same-action or affirmative defense.
The jury awarded $1,227,739 in damages, of which $832,739 was for future lost earning
capacity and future lost fringe benefits. The amount was reduced to $993,121.60. Asserting
that the injuries were permanent, plaintiff was paid for money he would not be able to earn
due to his injury. Id. Less than one year later, the complainant expressed an interest in
returning to work. Id. He reapplied, and the employer determined he was estopped from
returning to service. Id. at 3. Johnson filed a complaint under the Federal Railroad Safety
Act (FRSA) for whistleblower retaliation. Significant litigation ensued. OSHA denied the
complaint. Id. Johnson took the case to the ALJ. Id. The ALJ held hearing and ruled
against Johnson. Id. Johnson appealed the case to the ARB. Ultimately, the ARB concluded
that, assuming there was protected activity, Johnson failed to show that protected activity
was a contributing factor in the refusal to permit Johnson to return to work. Id. at 5.
62 	Levi, ARB No. 2008-0086, slip op. at 5 (“Levi was not successful in his previous
whistleblower complaints, Levi I-III. In this case, Levi IV, we will not reconsider our prior
rulings; in particular that Levi is not entitled to reinstatement based upon alleged prior
whistleblowing complaints. Levi IV constitutes a new request for employment with ABI. We
assume for the purpose of his complaint that Levi’s act of filing three previous
whistleblower complaints is protected activity. ABI officials who received Levi's letter for
rehire were aware of Levi's previous complaints as he referred to them in the letter.”)
(internal citations omitted).
63 	Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citing cases where
very close temporal proximity between adverse action and employer’s knowledge of
protected activity may support a prima facie case to avoid summary decision).

15
In this case, Complainant expressly packaged his rehire application with a
complaint filed with the IRS, which the ALJ found was protected activity.63F
64
Complainant threatened Respondent that if it did not rehire him, he would proceed
with TFA rights against Respondent who had terminated him for cause more than
two years earlier.64F
65 There is strong temporal proximity, a matter of days, between
the adverse action of not being rehired and informing the employer of the protected
complaint to the IRS. As Respondent notes, Complainant artificially designed it
that way.65F
66
I concur with the ALJ and panel rejecting Complainant’s effort. When dealing
with a rehire attempt such as this (Respondent referred to it as a “shakedown”66F
67),
the causal value attributed to temporal proximity should be closely scrutinized for
bad faith and abuse. While temporal proximity might be grounds to avoid summary
decision in certain cases, in a case like this with artificially timed protected activity,
the weight given to temporal proximity is suspect and the case is appropriate for
summary disposition notwithstanding very close temporal proximity. As the ALJ
observed, “[l]odging a complaint only in order to exact demands meets neither the
spirit nor the letter of the TFA.”67F
68
THOMAS H. BURRELL
Administrative Appeals Judge
64 	Supra note 19.
65 	Supra note 6.
66 	Respondent’s Memorandum at 15.
67 	Id. at 16.
68 	Order Granting Summary Decision at 6.