Thomas R. May v. United States Department of Labor, Administrative Review Board

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 5, 2024*
Decided August 11, 2025
No. 23-3152
THOMAS R. MAY,
Petitioner,
v.
UNITED STATES DEPARTMENT OF
LABOR, ADMINISTRATIVE REVIEW
BOARD,
Respondent,
Petition for Review of a Decision of the
Administrative Review Board.
Nos. 2022-0015 & 2020-PSI-00001
and
AGL SERVICES COMPANY,
Intervenor-Respondent.
O R D E R
Thomas May filed an administrative whistleblower complaint after he raised
safety concerns with his former employer—a protected activity under labor laws—and
lost his job. An Administrative Law Judge (ALJ) and the Administrative Review Board
(ARB) at the Department of Labor found that May’s protected activity was not a factor
* We have agreed to decide the case without oral argument for reasons specified
in Fed. R. App. P. 34(a)(2).
By the Court:
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 23-3152 Page 2
in his termination. Because May fails to engage with the decisions of the ALJ and ARB,
we deny his petition for review.
May was a fire investigator for AGL Services Company. AGL distributes natural
gas to the suburbs of Chicago through a related entity, Nicor, Inc. Months into his
employment, May internally raised concerns that he believed Nicor’s newly installed
gas meters had caused four residential fires. May’s supervisors and higher-level
executives investigated his concerns and even included him in some of these efforts. As
it turns out, only one of the four homes that caught fire had the newly installed gas
meters.
May continued to voice his concerns. He even filed an ethics complaint against
his supervisor, Tommy Sipsy, alleging that Sipsy retaliated against him for airing the
safety issues. The ethics complaint was later found to be unsubstantiated and based
mostly on conduct predating and unrelated to the residential fires. During, and shortly
after, this investigation into May’s ethics complaint, May mistreated Sipsy twice.
First, during a performance review meeting, May yelled at Sipsy and chastised
him about his level of education and “unethical” conduct. May also told Sipsy that May
was going to “destroy” him. May later testified that Sipsy was “gulping, sweating, and
trembling” throughout the interaction. After the incident, AGL hired an outside
investigator to determine whether May’s treatment of Sipsy violated the company’s
ethics code.
Second, about a month later, May emailed Sipsy. May added three people to the
email—Sipsy’s supervisor, AGL’s in-house counsel, and the investigator assigned to
May’s ethics complaint. In the email, May called Sipsy, among other things, “an
ethically-challenged individual” attempting to “promulgate a fabricated untruth,” and
he asked Sipsy to “cease with the unprincipled buffoonery.” After this email incident,
AGL suspended and then terminated May.
May filed a whistleblower complaint with the Department of Labor’s
Occupational Safety and Health Administration, which found no probable cause for his
allegations. He then appealed to an ALJ and then the Department’s ARB. Both the ALJ
and ARB concluded that May had failed to show his protected activity—raising safety
concerns—was a contributing factor in his suspension and termination.
“Our review of the ARB’s decision is guided by the standard set forth in the
Administrative Procedure Act, 5 U.S.C. § 706.” Roadway Exp., Inc. v. U.S. Dep’t of Lab.,

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No. 23-3152 Page 3
612 F.3d 660, 664 (7th Cir. 2010) (citing 49 U.S.C. § 31105(d)). “We may overturn ARB’s
legal conclusions only if they are ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Id. (citing 5 U.S.C. § 706(2)(A)). And we must
uphold ARB’s findings of fact if they are “supported by substantial evidence.” Id. (first
citing 5 U.S.C. § 706(2)(E); and then citing Roadway Exp., Inc. v. U.S. Dep't of Labor, 495
F.3d 477, 483 (7th Cir. 2007) [hereinafter Roadway I]). A decision by the ARB meets the
substantial evidence standard when it relies on “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (citing Roadway I, 495 F.3d
at 483). “Under this deferential standard of review, we may not set aside an inference
merely because we find the opposite conclusion more reasonable.” Id. (citation
modified) (citing Addis v. Dep’t of Labor, 575 F.3d 688, 690 (7th Cir. 2009)). Finally, “[a]s
in other administrative contexts, we review the ARB’s decision as supplemented by the
ALJ’s reasoning.” Samson v. U.S. Dep't of Lab., Admin. Rev. Bd., 732 F. App’x 444, 446 (7th
Cir. 2018) (citing Orellana-Arias v. Sessions, 865 F.3d 476, 488–89 (7th Cir. 2017)).
On appeal, May asserts several reasons why, as he sees it, his safety concerns
were a contributing factor in his termination. These include: his whistleblowing
intentions were widely known; legal counsel “entered into the equation” only after he
voiced his concerns; and AGL investigated him when they found out he would be
attending a safety conference, thereby supporting a finding of a close temporal
relationship between a protected activity and his termination. May also alleges that his
performance review was “bogus,” his ethics investigation was a “sham,” and everyone
involved had decided in advance to fire him to gain bonuses and profits while
disregarding public safety. Additionally, May lists, but without proper citation to the
record, several pieces of allegedly critical evidence that he asserts the ALJ and ARB
overlooked. In response, the Department of Labor points out that the ALJ and ARB
considered these arguments in context of the record and disagreed with May’s
presentation of the case.
We cannot rule in May’s favor. He fails to meaningfully engage with the
decisions of the ALJ and ARB that he has asked us to review, both of which contained
detailed and specific findings. Nearly all his arguments in support of his position that
his protected activity was a contributing factor in his termination lack citation to the law
and the record. Further, many of his arguments and factual allegations are repetitive
and conclusory. His poorly paginated briefing and appendices (see our note below that
May is also a lawyer) do little to advance his conclusory arguments and allegations.

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“[T]his court has repeatedly and consistently held that perfunctory and
undeveloped arguments, as well as arguments that are unsupported by pertinent
authority, are waived.” White v. United States, 8 F.4th 547, 552 (7th Cir. 2021). Federal
Rule of Appellate Procedure 28(a)(8)(A) requires appellants to file briefs containing
“appellant’s contentions and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies.” Rule 28 applies equally to pro se
litigants. See Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001). And although we
hold pro se litigants to a more flexible standard, May is a pro se litigant who is also
lawyer. “[A] pro se lawyer is entitled to no special consideration.” Godlove v. Bamberger,
Foreman, Oswald, & Hahn, 903 F.2d 1145, 1148 (7th Cir. 1990).
Even if we were to overlook May’s waiver, his claims would fail. This is because
the ALJ had substantial evidence from which to conclude that May’s protected activity
was not a contributing factor in his termination; the ARB was right to affirm that
decision. Brousil v. U.S. Dep’t of Lab., Admin. Rev. Bd., 43 F.4th 808, 812 (7th Cir. 2022).
Additionally, as the ARB reasonably concluded, all of May’s arguments before the ALJ
were unsubstantiated or based on rebutted evidence. May does not advance any
arguments on appeal to undermine this conclusion.
For these reasons, we DENY his petition for review.

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