Administrative Review Board

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

ROBERT KREB,

ARB CASE NO. 2018-0065

COMPLAINANT,

v.

ALJ CASE NO. 2016-AIR-00028

DATE: September 28, 2020

JACKSON JET CENTER, ET AL.,

RESPONDENT.

Appearances:

For the Complainant:

Erin M. Pettigrew, Esq.; EMP Law, LLC; Portland, Oregon; and David

E. Breskin, Esq.; Breskin Johnson Townsend, PLLC; Seattle,

Washington

For the Respondent:

Brad P. Miller, Esq. and Carsten A. Peterson, Esq.; Hawley Troxell

Ennis & Hawley LLP; Boise, Idaho

BEFORE: James D. McGinley, Chief Administrative Appeals Judge, James

A. Haynes and Randel K. Johnson, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. The Complainant, Robert Kreb, filed a retaliation complaint

under the employee protection provision of the Wendell H. Ford Aviation

Investment and Reform Act for the 21st Century (AIR 21)1 with the Department of

Labor’s Occupational Safety and Health Administration (OSHA). Complainant

alleged that Respondent, Jackson Jet Center (JJC) retaliated against him in

49 U.S.C. § 42121 (2000). AIR 21’s implementing regulations are found at 29 C.F.R.

Part 1979 (2018).

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violation of the whistleblower protection provisions of AIR 21. OSHA concluded

Complainant neither engaged in protected activity, nor was he blacklisted from

employment with Corporate Air Center. Complainant appealed this decision to the

Office of Administrative Law Judges (OALJ). A Department of Labor (DOL)

Administrative Law Judge (ALJ) dismissed the complaint after a hearing and

receiving evidence. He found that Complainant had failed to prove by a

preponderance of the evidence that he engaged in protected activity. Complainant

has appealed the dismissal of his complaint to the Administrative Review Board

(ARB). We affirm the ALJ’s denial.

BACKGROUND2

Complainant was hired as a Fixed Wing Pilot by JJC under its Part 135

Certificate to Fly Life Flight Network’s (LFN) aircraft for medical transport

services. Complainant was based at LFN’s Lewiston, Idaho base.

On March 6, 2014, Respondent’s Chief Pilot, Mr. Ryan Pike, emailed

Complainant a template copy of the Flight Risk Assessment Tool (FRAT) form used

by pilots to determine the risk of a single flight by checking off different safety risks

producing a numerical result to determine an overall risk score. The pilots were

routinely directed to fill out a single FRAT for each flight.

On July 8, 2014, Complainant worked an evening shift into the morning of

July 9. At 9:00 a.m., Complainant completed this shift and then went home to rest.

Complainant woke up to an email sent by Respondent’s Director of Operations, Mr.

Steve Bower, with a flight assignment: reposition aircraft N890WA from the

Lewiston base to the Dallesport, Washington base, and then return with a

Dallesport pilot the next morning. Complainant was expected to cover the night

shift and perform any EMS flights assigned to him out of the Dallesport base.

Complainant returned Mr. Bower’s email expressing safety concerns if he accepted

the assignment and advising that the assignment was a medium to high risk flight

This background follows the ALJ’s Decision and Order and undisputed facts. In

reciting these background facts, we make no independent findings of fact.

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under the FRAT checklist.3 He suggested changes to the pilot schedules to mitigate

the flight risk. Mr. Pike called and instructed that they were to go ahead as planned

with the flight.

Complainant arrived for his evening shift. He had not received a response

from his email other than the phone call with Mr. Pike. Around 10:00 p.m., LFN

redirected him to fly to Aurora, Oregon, with a helicopter pilot. Complainant

contacted LFT’s COM Center, or dispatch, to get feedback about his safety concerns

with LFN. Complainant spoke to the manager, and reiterated his concerns that the

assignment would be a medium to high risk flight, because he was not familiar with

the Dallesport base, and he would be encroaching on the surrounding mountains in

the dark. He also stated he expected to run out of time, potentially violating the 14hour duty rule, and that he would become fatigued, causing the aircraft to be

grounded somewhere inconvenient.

Around 10:45 p.m., Complainant filled out a FRAT and generated a Risk

Assessment Total of 60.4 Under the Respondent’s metrics, a score of 60 falls within

a medium level of risk. Complaint submitted the FRAT via email to Mr. Bower and

Mr. Pike, and repeated his scheduling concerns. Ten minutes later, Complainant

called Mr. Pike who advised that he had not received the FRAT, but Complainant

could get a hotel if he ran out of duty time or became too tired. Complainant

prepared to depart for the airport, but received a phone call from dispatch advising

LFN cancelled the reposition flight and to stand down. Ultimately, the Complainant

did not fly during the July 9 shift. In the afternoon of July 10, 2014, Mr. Pike told

Complainant that his employment with Respondent was terminated. Respondent

filled out a Personnel Action Form, which indicated Complainant’s employment was

terminated in part for falsifying company documentation to indicate that the flight

assignment was unsafe and for being dishonest with management.

Complainant listed the following safety concerns: “[u]nfamiliar/unknown/limited FW

base accommodations in DLS; [h]ostile nighttime operational equipment (Columbia gorge);

[n]o synthetic vision installed on N890WA to increase safety margins; [h]eavy

encroachment of rest periods yesterday/today book-ending a long duty period last night due

to scheduling mix-ups; [and] [a]nticipation of typically heavy LFN demand from DLS and

[r]epositioning flights risk increasing fatigue and possible [g]rounding from flight/duty rest

requirements under recently [c]larified restrictions to Part 91 Flight completion within

duty [p]eriods by JJC.”

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Complainant filled out the FRAT as an evaluation of not just one flight, but as to the

cumulative effect of the whole shift, with his expectation of returning to the Lewiston base

the next morning on July 10. D. & O. at 11-12.

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Sometime in 2015, Complainant was interviewing with Corporate Air

Center’s Chief Pilot and flew with him to Seattle during the interview process.

While in Seattle, Complainant witnessed but did not hear a conservation between

Corporate Center’s pilot and a Charter and Maintenance Supervisor for

Respondent. Two weeks after this interaction, Complainant received a voicemail

advising that Corporate Air Center was going to go in another direction for the

position.

JURISDICTION AND STANDARD OF REVIEW

The Administrative Review Board has jurisdiction to review the ALJ’s AIR 21

decision.5 The Board reviews questions of law presented on appeal de novo, but is

bound by the ALJ’s factual findings as long as they are supported by substantial

evidence.6

DISCUSSION

AIR 21’s employee protection provisions generally prohibit covered employers

and individuals from retaliating against employees because they provide

information or assist in investigations related to the categories listed in the AIR 21

whistleblower statute.7 To prevail on an AIR 21 whistleblower complaint, the

Complainant must prove by a preponderance of the evidence that he or she was an

employee who engaged in activity the statute protects, suffered an adverse

employment action, and that the protected activity was a contributing factor in the

employer’s decision to take the adverse action.8 The failure to prove any one of these

elements necessarily requires dismissal of a whistleblower complaint. As the ALJ

found that Complainant did not establish by a preponderance of the evidence that

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).

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29 C.F.R. § 1979.110(b); Yates v. Superior Air Charter, LLC, d/b/a Jetsuite Air,

ARB No. 2017-0061, ALJ No. 2015-AIR-00028, slip op. at 4 (ARB Sept. 26, 2019).

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See 49 U.S.C. § 42121(a).

See 49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R. §1979.109(a); Hukman v. U.S. Airways,

Inc., ARB No. 2018-0048, ALJ No. 2015-AIR-00003, slip op. at 5 (ARB Jan. 16, 2020). See

also Poulter v. Cent. Cal Transp. LLC, ARB No. 2018-0056, ALJ No. 2017-STA-00017, slip

op. at 11-13 (ARB Aug. 18, 2020) (the ALJ must evaluate the countervailing evidence to

determine whether a complainant engaged in protected activity).

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he engaged in protected activity, a required element, we will limit our discussion to

this finding and will not reach the other elements of Air 21 actions.

Complainant argues the ALJ erred in requiring him to prove an actual

violation or use specific citations to a Federal Aviation Administration (FAA) rule to

establish protected activity. We note that the ALJ correctly stated more than once

that Complainant did not need to identify or describe an actual violation or to prove

that a violation was certain to occur.9 We find that Complainant misstated the

standard the ALJ employed to define “protected activity.”

Complainant also argues on appeal that the ALJ should have considered the

reasonableness of the safety reports at the time the first report was made.

However, the ALJ was correct to hold that an employee engages in protected

activity whenever the employee provides or attempts to provide information related

to a violation or alleged violation of an FAA requirement or any federal law related

to air carrier safety, where the employee’s belief of a violation is subjectively and

objectively reasonable.10

In the case before us, the ALJ thoroughly considered Complainant’s

contention that he engaged in protected activity when he raised safety concerns

about the July 9 flight assignment.11 The ALJ carefully went through the potential

federal aviation regulation violations and safety concerns Complainant raised,

The ALJ properly summarized the law on this point by noting: “Though the

complainant “need not cite to a specific violation, his complaint must at least relate to

violations of FAA orders, regulations, or standards (or any other violations of federal law

relating to aviation safety.).” D. & O. at 56 (citing Malmanger v. Air Evac EMS, Inc., ARB

No. 2008-0071, slip op. at 9 (ARB July 2, 2009)).

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49 U.S.C.A. § 42121(a)(1).

The employee must persuade the factfinder—here, the ALJ—of the existence of

protected activity. See Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust

for S. Cal., 508 U.S. 602, 622 (1993) (“The burden of showing something by a preponderance

of the evidence . . . simply requires the trier of fact to believe that the existence of a fact is

more probable than its nonexistence before [he] may find in favor of the party who has the

burden to persuade the [judge] of the fact’s existence.”) (alterations in original and internal

quotation marks omitted); Joyner v. Georgia-Pacific Gypsum, LLC, ARB No. 2012-0028,

ALJ No. 2010-SWD-00001, slip op. at 11 (ARB Apr. 25, 2014) (“[T]he preponderance of the

evidence standard requires that the employee’s evidence persuade[] the ALJ that his

version of events is more likely true than the employer’s version. Evidence meets the

‘preponderance of the evidence’ standard when it is more likely than not that a certain

proposition is true” (alteration in original and internal quotation marks omitted).).

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made credibility findings,12 and evaluated the evidence to determine whether

Complainant held an objectively reasonable belief that the safety information he

provided in the FRAT and emails was a violation of federal aviation regulations or

laws.

After reviewing the FAA regulations and other provisions of Federal law

relating to air carrier safety, the ALJ found Complainant did not have an

objectively reasonable belief that a violation existed or was likely to occur

considering the knowledge available to a reasonable person in the same factual

circumstances. Critical in this regard are the ALJ’s findings, supported by the

substantial evidence of record, that none of the safety concerns were imminent or

entirely truthful. The record shows that a pilot with the same experience and

training would not have thought the cited safety concerns were likely or imminent

violations of federal aviation standards, but at most possibilities dependent on

factors that were unknown or unlikely at the time Complainant raised his concerns.

Complainant offered no evidence that a pilot with his training and experience would

have agreed that accepting the July 9 flight assignment would have posed a safety

risk. The ALJ found that Complainant’s refusal to accept the flight assignment, his

FRAT report, and his other comments about safety concerns did not meet the

definition of protected activity.

Substantial evidence supports the ALJ’s finding that Complainant’s report of

safety concerns exaggerated or misrepresented the risks of the July 9 flight

assignment.

The ALJ concluded, as noted earlier, that Complainant did not have an

objectively reasonable belief that he engaged in protected activity when he provided

safety concerns relating to federal law or regulations that he believed would be

violated if he completed his intended flight assignment. We agree. Accordingly, we

affirm the ALJ’s finding that Complainant did not engage in protected activity.

The Board will uphold ALJ credibility determinations unless they are “inherently

incredible or patently unreasonable.” 29 C.F.R. § 1978.110(b); Jacobs v. Liberty Logistics,

Inc., ARB No. 2017-0080, ALJ No. 2016-STA-00007, slip op. at 2 (ARB Apr. 30, 2019)

(reissued May 9, 2019) (citation omitted). Complainant did not offer any evidence that the

ALJ’s credibility determinations were inherently incredible or patently unreasonable.

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CONCLUSION

The ALJ’s determination that Complainant did not engage in protected

activity is supported by the substantial evidence. Accordingly, we AFFIRM the

ALJ’s decision and DISMISS Robert Kreb’s complaint.

SO ORDERED.