Robert Barboza v. U.S. Department of Labor

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 14 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT ALLEN BARBOZA, No. 20-70363

Petitioner, LABR No. 2018-0076

v. MEMORANDUM* U.S. DEPARTMENT OF LABOR,

Respondent,

BNSF RAILWAY COMPANY,

Intervenor.

On Petition for Review of an Order of the Department of Labor

Submitted July 13, 2022**

Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.

Robert Allen Barboza petitions pro se for review of the Administrative

Review Board’s decision affirming the administrative law judge’s summary

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). decision denying and dismissing Barboza’s complaint under the Federal Rail

Safety Act, 49 U.S.C. § 20109. We have jurisdiction, and review the agency’s

decision in accordance with the Administrative Procedure Act. See 49 U.S.C.

§ 20109(d)(4); 5 U.S.C. § 706. We deny the petition.

The agency properly found that Barboza failed to raise a triable issue as to

whether intervenor BNSF Railway Company had committed any adverse actions

within the 180-day limitations period.

First, claims arising from BNSF’s resolution of Barboza’s retaliation

complaint, notice of which Barboza received on August 29, 2016, and BNSF’s

initiation of an investigation into Barboza’s illness report, notice of which Barboza

received on September 9, 2016, were untimely, because Barboza’s complaint was

filed on March 16, 2017. See 49 U.S.C. § 20109(d)(2)(A)(ii); 29 C.F.R. §

1982.103; Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 (2002) (“A

discrete retaliatory or discriminatory act ‘occurred’ on the day that it

‘happened.’”); see also Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir.

2010) (equitable tolling appropriate where plaintiff would not have known of

existence of possible claim within the limitations period, or where despite all due

diligence, plaintiff is unable to obtain vital information bearing on existence of

claim).

Second, the agency properly determined that Barboza’s allegations

2 20-70363 concerning mutually agreed postponement of the investigation meetings, and

BNSF’s ultimate cancellation of the injury investigation, did not describe adverse

or unfavorable acts. See 29 C.F.R. § 1982.102.

Third, the agency properly determined that Barboza’s remaining allegations,

including claims of ongoing harassment and retaliation, were unsupported, because

Barboza failed to provide the ALJ with supporting evidence. See 29 C.F.R.

§ 18.72(e) (describing requirements for supporting factual positions on motion for

summary decision, and consequences for failure to do so); 29 C.F.R. § 18.90

(record closes on date of hearing before ALJ, or on date set by ALJ for written

submissions; the record may be reopened, but “[n]o additional evidence may be

admitted unless the offering party shows that new and material evidence has

become available that could not have been discovered with reasonable diligence

before the record closed.”).

The ALJ did not abuse his discretion when he declined to defer ruling in

order to allow additional discovery, because Barboza failed meet the regulatory

requirements for a deferral. See 29 C.F.R. § 18.72(d)(1) (ALJ may defer

considering summary decision motion where nonmovant shows by affidavit or

declaration that, for specified reasons, it cannot present facts essential to justify its

opposition).

We do not consider matters not specifically and distinctly raised and argued

3 20-70363 in the opening brief, or arguments and allegations made for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Barboza’s “Motion for Opposition of Withdrawal of Counsel Gillian Dale”

(Docket Entry No. 37) is denied as moot.

PETITION FOR REVIEW DENIED.

4 20-70363