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U.S. Department of Labor
Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
In the Matter of:
KARLENE PETITT
COMPLAINANT,
v.
ARB CASE NO. 2021-0014
ALJ CASE NO. 2018-AIR-00041
DATE: March 29, 2022
DELTA AIRLINES, INC.,
RESPONDENT.
Appearances:
For the Complainant:
Lee Seham, Esq. and Nicholas Granath, Esq.; Seham, Seham, Meltz &
Petersen, LLP; White Plains, New York
For the Respondent:
Paul D. Clement, Esq. and George W. Hicks, Jr., Esq.; Kirkland &
Ellis LLP; Washington, District of Columbia
Matthew D. Klayman, Esq.; Morgan, Lewis & Bockius LLP;
Philadelphia, Pennsylvania
Ira G. Rosenstein, Esq. and Lincoln O. Bisbee, Esq.; Morgan, Lewis &
Bockius LLP; New York, New York
Bryan M. Killian, Esq.; Morgan, Lewis & Bockius LLP; Washington,
District of Columbia
Before: James D. McGinley, Chief Administrative Appeals Judge; Thomas
H. Burrell and Randel K. Johnson, Administrative Appeals Judges
2
ORDER OF REMAND
PER CURIAM. Karlene Petitt (Complainant) filed a complaint under the
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century1 (AIR
21), and its implementing regulations,2 alleging that her employer, Delta Airlines
(Respondent), had unlawfully discriminated against her under the AIR 21’s
whistleblower protection provisions. After a formal hearing, an Administrative Law
Judge (ALJ) granted the claim and awarded damages against Respondent.
Respondent appealed the ALJ’s decision to the Administrative Review Board (ARB
or Board). For the reasons discussed below, we affirm the ALJ’s decision in part and
remand to the ALJ for further proceedings consistent with this opinion.
BACKGROUND3
Complainant has worked for Respondent since it merged with Northwest
Airlines in 2008. Respondent employs Complainant as a First Officer.
To fly transport category aircraft, a pilot must hold an airline transport pilot
(ATP) certificate and a Federal Aviation Administration (FAA) airman medical
certificate. A pilot may only use the ATP certificate to fly transport planes when in
possession of a current and valid FAA airman medical certificate.
Respondent has a collective bargaining agreement (CBA) with Air Line Pilots
Association (union), which covers Complainant’s employment. In Section 15 of the
Pilot Working Agreement (PWA), Respondent’s Director of Health Services (DHS)
“may require a medical evaluation of a pilot holding a valid First Class Medical
Certification. This medical evaluation will be limited to the nature of the First Class
Medical physical standard(s) in question.”4
If Respondent utilizes the Section 15 process against a pilot, that process
involves several steps. First, Respondent chooses a Company Medical Examiner
(CME) to conduct a medical examination.5 After the CME’s medical evaluation is
complete, a pilot may hire his or her own medical examiner to serve as the Pilot
1
49 U.S.C. § 42121 (2020).
2
29 C.F.R. Part 1979 (2021).
3
In this background, we make no findings of fact.
4
JX-A at 1.
5
Decision and Order (D. & O.) at 11.
3
Medical Examiner (PME) to counter the CME’s report. If the reports conflict, the
CME and PME jointly choose the tie-breaking Neutral Medical Examiner (NME).
All parties are required to accept the NME’s determination as “fact and binding.”6
The CME is not to report the results to the FAA until completion of the Section 15
process.7
On November 3, 2015, Complainant emailed her direct supervisor, Chief Pilot
Phil Davis, regarding several matters including safety concerns. At the end of the
email, Complainant requested a meeting with Captains James Graham and
Stephen Dickson.8
On November 9, 2015, Captain Graham forwarded Complainant’s November
3, 2015 email to Captain O.C. Miller and added that it was “[p]robably good to
engage HR again at this point given this latest email to Phil as I believe we could
find ourselves being accused of inappropriate wrongdoing by her and we need to
start the tracking for this phase. I also think we should consider whether a section
15 is appropriate.”9 Captain Graham’s November 9, 2015 email is the first recorded
statement regarding the possibility of referring Complainant for the Section 15
process. Captain Miller forwarded this email to Chris Puckett, one of Respondent’s
labor relations attorneys. Also on November 9, 2015, Complainant directly emailed
Captain Graham to ask for a meeting with him and Captain Dickson.
On November 16, 2015, an email exchange occurred between Captains
Graham and Dickson and Complainant. At one point during the exchange, Captain
Graham forwarded an email from Complainant to Captain Dickson, adding “just
FYI I will brief HR and handle this with kid gloves. She could be a candidate for a
section 15 after this goes through.”10
On January 28, 2016, Complainant met with Captains Graham and Dickson
and provided a 45-page report that she titled “Assessment of Delta Air Lines ‘Flight
Operations’ Safety Culture” (Assessment Report). Captain Graham divided
Complainant’s Assessment Report into three categories: operational issues, safety
concerns, and unequal treatment. Respondent’s Equal Opportunity (“EO”)
department began investigating Complainant’s claim. Ms. Kelley Nabors, a
manager of equal opportunity and pass travel protection in Respondent’s Human
Resources department, was chosen to lead the investigation.
6
JX-A at 2.
7
Id. at 1.
8
D. & O. at 24.
9
Id. at 26; CX-11 at 2.
10
D. & O. at 27; CX-7 at 1.
4
On March 8, 2016, Complainant and Ms. Nabors met in a hotel lobby
(Nabors-Petitt meeting).11 The focus of the meeting was on safety-culture
allegations Complainant had made in her Assessment Report.12 During the
meeting, Complainant expressed to Ms. Nabors that she feared for her safety and
the safety of Respondent’s operations.13 After the meeting, Ms. Nabors was
concerned about Complainant’s mental well-being.14 On March 9, 2016, Ms. Nabors
called and talked to Ms. Meg Taylor, an employment lawyer for Respondent, to
discuss the Nabors-Petitt meeting.
On March 10, 2016, Ms. Nabors met in person with Mr. Puckett, Ms. Taylor,
and Ms. Nabors’ immediate supervisor to discuss the details of the Nabors-Petitt
meeting. During the meeting, Mr. Puckett decided he wanted to have a discussion
with Ms. Nabors and the DHS physician, Dr. Faulkner.15 After this meeting, Mr.
Puckett went to his office with Ms. Nabors and called Dr. Faulkner. Mr. Puckett
stepped out of his office and left Ms. Nabors to speak to Dr. Faulkner alone. As Ms.
Nabors described the Nabors-Petitt meeting, Dr. Faulkner grew concerned over the
allegation that Complainant was fearful of physical harm. Dr. Faulkner requested
that Ms. Nabors create a written statement. On the same day, Mr. Puckett had a
phone conversation with Ms. Taylor and Dr. Faulkner to “talk[] to [Dr. Faulkner]
about perhaps consulting a specialist in the area, somebody with a psychiatric
background.”16 Under the PWA’s Section 15 process, the DHS is responsible for
designating a CME to evaluate the referred pilot. Mr. Puckett emailed Dr. David
Altman, a psychiatrist, inquiring about his availability to serve as the CME, and
explaining that a “pilot has made a few statements that have raised some mental
fitness concerns but as with most things I want to ensure we do not overreact.”17
Mr. Puckett copied Ms. Taylor on this email but not Dr. Faulkner.
11
D. & O. at 34.
12
Id.
13
Id. at 35.
During the Nabors-Petitt meeting, Ms. Nabors felt that Complainant was difficult to
follow, frazzled, tearful, and very emotional. Ms. Nabors recalled Complainant being fearful
that someone was out to get her. Ms. Nabors took Complainant’s statements to infer that
she was concerned for her physical safety. Complainant made two statements during their
meeting that Ms. Nabors emphasized, one being that Complainant had given documents to
her mother for safekeeping, and the other was her concern over the possibility of an
aviation accident. Ms. Nabors recalled that Complainant had told her she had given
documents, including her Safety Assessment Report, to her mother with instructions that if
anything should happen to her, that her mother should take the documents to news outlets.
Id. at 34-35.
14
15
Id. at 37.
16
Id. at 89; Tr. at 1755-56.
17
RX-40 at 2.
5
On March 15, 2016, Mr. Puckett emailed Dr. Altman a copy of Complainant’s
Assessment Report and specified that the Nabors-Petitt meeting “raised concerns
that we would like to discuss with you tomorrow.”18
On March 16, 2016, a telephone conference occurred between Dr. Altman, Mr.
Puckett, Ms. Nabors, and Dr. Faulkner, during which Dr. Altman was told
Complainant had memory issues and about Complainant’s concern that Respondent
would in some way harm her.19 Dr. Altman was asked for his medical opinion and
he recommended a psychiatric evaluation including neuro-psychological testing
because of the concern about Complainant’s alleged memory issues.20
On March 17, 2016, an in-person conference occurred between Captain
Graham, Ms. Nabors, Mr. Puckett, Ms. Taylor, and Mr. Peter Carter, a Respondentemployed attorney.21 Dr. Altman participated telephonically. Ms. Nabors recapped
the events of the Nabors-Petitt meeting, and Dr. Faulkner and Dr. Altman
discussed whether a Section 15 assessment would be appropriate. Ten minutes after
Ms. Nabors made her report, Dr. Faulkner made his recommendation to initiate the
Section 15 process and Captain Graham accepted Dr. Faulkner’s recommendation.
Immediately after the meeting, Mr. Puckett called Captain Davis to inform him
that Complainant was being placed into the Section 15 process and that he would be
given the appropriate paperwork to provide to Complainant to start the process.
On March 22, 2016, Captain Davis met with Complainant and delivered the
Section 15 letter. A union representative was present.
On April 27, 2016, Complainant gave a presentation about her Assessment
Report to divisional leaders. Immediately after the presentation, Complainant met
with Dr. Faulkner in person to discuss the Nabors-Petitt meeting. On April 28,
2016, Dr. Faulkner called Complainant and advised that he was going to refer her
to Dr. Altman for a Section 15 evaluation.22
In a letter dated May 4, 2016, Dr. Faulkner formally referred Complainant to
Dr. Altman “for evaluation of her current status and fitness for duty in relationship
to the [FAA] – Office of Aerospace Medicine (FAA – OAM) medical standards.”23
18
CX-3 at 5-6.
19
D. & O. at 38.
20
Id.
21
Id. at 41.
22
Id. at 45.
23
JX-H at 1-2.
6
Dr. Faulkner notified Complainant that she would be required to undergo neuropsychological testing on May 11 with a neuropsychologist prior to her psychological
and psychiatric evaluation with Dr. Altman in Chicago. Dr. Altman met with
Complainant three times, twice in July of 2016 and once in September of 2016.
On or about December 7, 2016, Dr. Faulkner received Dr. Altman’s report.
Dr. Altman determined Complainant suffered from bi-polar disorder and was unfit
to fly. On December 24, 2016, Complainant received Dr. Altman’s report in the mail.
Once Dr. Altman’s report was finalized, Complainant requested to be placed on sick
leave status so that she would be paid her normal earnings. After exhausting her
sick leave allowance, she transitioned to disability pay (the normal pay when a pilot
is undergoing the Section 15 process), which amounted to 50% of her normal
earnings.
Complainant hired a panel of nine doctors from the Mayo Clinic’s Aviation
Medical Department (consisting of a Human Intervention Motivation Study (HIMS)
Aviation Medical Examiner, a HIMS psychologist, two psychiatrists, and
occupational medicine specialists) to serve as the PME.24 On February 16, 2017, the
Mayo Clinic published a report stating that it was the unanimous opinion of the
panel that Complainant did not have bi-polar disorder and that she did not have a
personality disorder. Further, they also determined that she did not have, nor had
she ever had, any other psychiatric disorder.
On or about February 22, 2017, Complainant obtained a recertification of her
first-class airman medical certificate after previously filing for recertification.25
Prior to February 2017, Complainant disclosed on her application for her first-class
airman medical certificate the identities of the mental health doctors she met with
during this process.26 Complainant emailed Dr. Faulkner a copy of the certificate.
Dr. Faulkner was concerned because he did not believe that the FAA knew about
the conflicting diagnoses from Dr. Altman and the Mayo Clinic. Further,
Complainant had not yet finished the Section 15 process.27 After asking and
receiving guidance from Mr. Puckett if he could inform the FAA of the CME’s
findings, Dr. Faulkner contacted one of the FAA’s regional flight surgeons and
advised that Respondent had information regarding a pilot with a permanently
disqualifying condition. Afterwards, the FAA contacted Complainant directly and
requested additional information. On August 21, 2017, the FAA’s Northwest
24
D. & O. at 58.
25
Id. at 60.
26
Id. at 60 n.179.
27
Id. at 60.
7
Regional Flight Surgeon sent Complainant a letter informing her that she was still
eligible for a first-class medical certificate.28
In July of 2017, the CME and PME approved Dr. Andrew Huff as the NME.
On September 2, 2017, Dr. Huff produced a report clearing Complainant to fly, the
Section 15 process concluded, and Respondent returned Complainant to flight
status.
PROCEDURAL HISTORY AND ALJ DECISION
On June 6, 2016, Complainant filed the current AIR 21 complaint against
Respondent with the Occupational Safety and Health Administration (OSHA). The
Secretary of Labor found there was insufficient evidence to establish that
Respondent violated AIR 21. Complainant objected to OSHA’s findings and
requested a formal hearing before the Office of Administrative Law Judges (OALJ).
The ALJ assigned to the case held a formal hearing from March 25, 2019, to March
29, 2019, on April 25, 2019, and from May 3 to May 5, 2019.
The ALJ issued a D. & O. on December 21, 2020, and Respondent timely
appealed to the Board on January 4, 2021.
The ALJ found in Complainant’s favor. First, the ALJ noted the parties
stipulated that Complainant engaged in protected activity when she provided her
Assessment Report to Captains Graham and Dickson.29 The ALJ also found that
Complainant’s November 3, 2015 email to Captain Davis was protected activity,
and that her concerns in the email were subjectively and objectively reasonable. The
ALJ focused on Complainant’s references to the FAA-regulated Safety Management
Systems (SMS) program and her allegation that Respondent failed to meet SMSsafety culture standards.30 Complainant finished the email by requesting to meet
with Captains Graham and Dickson. The ALJ stated that he could infer from
Complainant’s email that her request for a meeting was to discuss the same
concerns described in the email.31
The ALJ then discussed whether the Section 15 process constituted an
adverse action and concluded that “any referral to a Section 15 mental health
evaluation constitutes an adverse employment action.”32 The ALJ stated that in this
case Complainant was subjected to the Section 15 process for 21 months and that
28
Id. at 60; CX-153 at 1.
29
D. & O. at 8.
30
Id. at 74-75.
31
Id.
32
Id. at 78.
8
the possibly career-ending process was “anything but trivial”.33 The ALJ noted the
“severe emotional toll placed” on Complainant’s well-being, and the impact of any
future employment in the aviation community. The ALJ also noted that not flying
for 21 months can degrade a pilot’s proficiency to operate an aircraft and to
maintain instrument flying skills.34
The ALJ then considered whether Complainant’s protected activity was a
contributing factor in Respondent’s unfavorable personnel action. The ALJ found
that temporal proximity existed between Complainant’s November 3, 2015 email
and Captain Graham’s November 9, 2015 email, and between Complainant’s
November 3, 2015 email and the Nabors-Petitt meeting.35 The ALJ stated that
“Captain Graham first contemplated the Section 15 process after reading the
November 3, 2015 email” but before the Nabors-Petitt meeting.36 Given the
temporal proximity, the ALJ gave little weight to Captain Graham’s statements
that the November 3, 2015 email and the subsequent Assessment Report had no
bearing on his decision to refer Complainant for a Section 15 evaluation.37 The ALJ
stated this “sequence of events left the Tribunal with the impression that Captain
Graham harbored little if any tolerance for criticism of the organization he ran,
especially criticism from a line pilot like Complainant.”38 The ALJ “question[ed] the
candor of Captain Graham’s testimony at various points, and occasionally found his
testimony to be incredible.”39 The ALJ found that Captain Graham had “a more
outsized role in the Section 15 process than what he had testified to and what
Respondent has argued.”40
The ALJ found Mr. Puckett also played an outsized role. Mr. Puckett’s duty
during the Section 15 process as Respondent’s in-house lawyer is to provide advice
and counsel on compliance.41 The ALJ found Mr. Puckett was over-involved in his
role as counsel during the process. The ALJ then described the different ways Mr.
33
Id. at 79.
34
Id. at 80.
35
Id. at 83-84.
36
Id. at 85.
37
Id at 71.
38
Id.
Id. The Board will uphold ALJ credibility determinations unless they are “inherently
incredible or patently unreasonable.” 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)
(quotations omitted).
39
40
D. & O. at 85.
41
Id. at 87.
9
Puckett was involved prior to and after the Nabors-Petitt meeting. 42 For example,
the ALJ noted that Mr. Puckett was the one who initially contacted Dr. Altman to
inquire about his availability and that Mr. Puckett was the person in charge of
setting up the March 16 meeting.43 The ALJ noted that Captain Miller had
forwarded Captain Graham’s November 9, 2015 email to Mr. Puckett on the same
day, and thus, Mr. Puckett was aware of Captain Graham’s views about
Complainant while he played this outsized role in the Section 15 process.44 The ALJ
therefore found Complainant’s protected activity contributed to the adverse action.
Finally, the ALJ found that Respondent failed to prove by clear and
convincing evidence that it would have taken the same adverse action in the
absence of Complainant’s protected activity. The ALJ based his finding on “Captain
Graham’s knee-jerk reaction to Complainant’s November 3, 2015 email where she
discussed protected activity.”45 The ALJ also noted that Captain Graham provided
shifting rationales as to why he accepted Dr. Faulkner’s recommendation.46 The
ALJ found the actions of Captain Graham and Mr. Puckett suggested a
“manipulation of a process to achieve a desired outcome.”47 Additionally, the ALJ
noted that Respondent chose Dr. Altman as the CME despite the union’s previous
warnings against him as a physician.48
In summary, the ALJ found that: 1) Complainant’s November 3, 2015 email
constituted protected activity; 2) Respondent subjected Complainant to adverse
action by initiating and proceeding with a Section 15 medical evaluation; 3)
Complainant’s protected activity contributed to the adverse action; and 4)
Respondent did not prove that it would have taken the same action even in the
absence of Complainant’s protected activity. Accordingly, the ALJ ruled that
Respondent violated the AIR 21, and awarded Complainant relief, including back
and front pay, publication of the D. & O., and non-economic compensatory damages.
42
Id. at 87-95.
43
Id. at 89-90.
44
Id. at 88.
45
Id. at 99.
46
Id. at 100-01.
47
Id. at 99.
“The Tribunal is struck that Mr. Puckett would again select Dr. Altman, even after
the pilots’ union’s expressed concerns to him about Dr. Altman’s [prior] reporting of his
findings to the FAA prior to completion of the Section 15 process.” Id. at 89. The ALJ also
noted that Respondent chose a psychiatrist in Chicago, and not Seattle, where Complainant
resides. As a result of this choice, Complainant had to travel to Chicago three times during
the Section 15 process to be evaluated by Dr. Altman. Id. at 90 n.231.
48
10
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated to the Board the authority to issue
agency decisions in this matter.49 In AIR 21 cases, 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.50 Substantial evidence means “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”51
DISCUSSION
Section 42121 of the AIR 21 provides that an air carrier “may not discharge
an employee or otherwise discriminate against an employee with respect to
compensation, terms, conditions, or privileges of employment because the employee
. . . provided . . . to the employer or Federal Government information relating to any
violations or alleged violations of any order, regulations, or standard of the Federal
Aviation Administration or any other provision of Federal law relating to aviation
safety.”52
To prevail in a retaliation case under AIR 21, the complainant must prove, by
a preponderance of the evidence, that she engaged in protected activity that was a
contributing factor in the adverse employment action taken against her.53 If the
complainant meets her burden of proof, the respondent may avoid liability if it
proves by clear and convincing evidence that it would have taken the same
unfavorable personnel action in the absence of the complainant’s protected
activity.54
Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186 (Mar. 6, 2020); 29
C.F.R. § 1979.110(a).
49
29 C.F.R. § 1979.110(b); Yates v. Superior Air Charter, LLC, ARB No. 2017-0061,
ALJ No. 2015-AIR-00028, slip op. at 4 (ARB Sept. 26, 2019).
50
Hoffman v. NetJets Aviation, Inc., ARB No. 2009-0021, ALJ No. 2007-AIR-00007,
slip op. at 4 (ARB Mar. 24, 2011) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474,
477 (1951)).
51
52
49 U.S.C. § 42121(a)(1).
Dolan v. Aero Micronesia, Inc., ARB Nos. 2020-0006, -0008, ALJ No. 2018-AIR00032, slip op. at 4 (ARB June 30, 2021); 49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R. §
1979.109(a).
53
Dolan, ARB Nos. 2020-0006, -0008, slip op. at 4-5; 49 U.S.C. § 42121(b)(2)(B)(iv); 29
C.F.R. § 1979.109(a).
54
11
In the current matter, Respondent asks the Board to reverse the ALJ’s
decision. We address each of Respondent’s arguments below.
1.
Jurisdiction
We begin with Respondent’s argument that the Railway Labor Act (RLA)
precludes jurisdiction over this matter because there is a dispute over the PWA’s
meaning. RLA preemption occurs when there is an “active dispute over the
‘meaning of contract terms.’”55 Specifically, Respondent argues that the “reason to
believe” standard56 in the PWA that addresses the basis for initiating the Section 15
process or limits the discretion of the DHS when requiring a medical evaluation of a
pilot creates a genuine dispute warranting RLA mediation.
The relevant portion of the PWA’s Section 15 states that “[t]he DHS may
require a medical evaluation of a pilot holding a valid First Class Medical
Certification. This medical evaluation will be limited to the nature of the First Class
Medical physical standard(s) in question.”57
Upon review of the PWA, the only “reason to believe” language is found in a
different part of Section 15:
Regardless of whether a pilot has a current First Class Medical
Certificate, the Director – Health Services (DHS) may review the
medical records of a pilot: a. who receives an FAA special issuance
medical certificate; b. who seeks the return to flight duty after being
absent for at least four months for medical reasons; or c. when there is
reason to believe that he may not meet the physical standards.58
The plain language of the relevant portion of Section 15 does not contain a
“reason to believe” standard or any other stated standard to which the DHS must
abide when deciding whether to initiate and proceed with a medical examination
under the Section 15 process. Accordingly, as there is no need to resolve a disputed
interpretation over the PWA’s meaning, the RLA does not preclude the Board’s
jurisdiction in this case.
Alaska Airlines, Inc. v. Schurke, 898 F.3d 904, 921 (9th Cir. 2018) (quoting Livades
v. Bradshaw, 512 U.S. 107, 124 (1994)).
55
Respondent contends that the PWA contains a mandated “reason to believe”
standard that the DHS must abide by when requiring a pilot to undergo a medical
evaluation.
56
57
JX-A at 1.
58
Id. (emphasis added).
12
2.
Protected Activity
AIR 21 protects employees who “blow the whistle” and provide information on
matters relating to air carrier safety. Under AIR 21, a complainant engages in
protected activity if he or she:
(1) provided, caused to be provided, or is about to provide (with any
knowledge of the employer) or cause to be provided to the employer or
Federal Government information relating to any violation or alleged
violation of any order, regulation, or standard of the Federal Aviation
Administration or any other provision of Federal law relating to air
carrier safety under this subtitle [49 USCS §§ 40101 et seq.] or any other
law of the United States;
(2) has filed, caused to be filed, or is about to file (with any knowledge of
the employer) or cause to be filed a proceeding relating to any violation
or alleged violation of any order, regulation, or standard of the Federal
Aviation Administration or any other provision of Federal law relating
to air carrier safety under this subtitle [49 USCS §§ 40101 et seq.] or
any other law of the United States;
(3) testified or is about to testify in such a proceeding; or
(4) assisted or participated or is about to assist or participate in such a
proceeding.59
Protected activity under AIR 21 has two elements: (1) the information that the
complainant provides must involve a purported violation of a regulation, order, or
standard of the FAA or federal law relating to air carrier safety, though the
complainant need not prove an actual violation; and (2) the complainant’s belief that
a violation occurred must be subjectively held and objectively reasonable. 60 In
analogous settings, the Administrative Review Board has held that a belief is
objectively reasonable when a reasonable person, with the same training and
experience as the employee, would believe that the conduct implicated in the
employee’s communication could rise to the level of a violation of one of the provisions
of Federal law enumerated in the whistleblower protection statute at issue.61
59
49 U.S.C. § 42121(a); 29 C.F.R. § 1979.102.
Occhione v. PSA Airlines, ARB No. 2013-0061, ALJ No. 2011-AIR-00012, slip op. at 9
(ARB Nov. 26, 2014); Dick v. Tango Transp., ARB No. 2014-0054, ALJ No. 2013-STA-00060,
slip op. at 8 (ARB Aug. 30, 2016).
60
See Sylvester v. Parexel Int’l, LLC, ARB No. 2007-0123, ALJ Nos. 2007-SOX-00039, 00042, slip op. at 14-15 (ARB May 25, 2011); Wiest v. Lynch, 710 F.3d 121, 132 (3d Cir.
2013).
61
13
The Board has held that “the AIR 21 whistleblower statute does not require
that protected activity relate ‘definitively and specifically’ to a safety issue.”62 “The
ARB has noted that a respondent’s knowledge of the protected activity need not be
specific, and a complainant need not prove that a respondent knew that the
complaint involved an express violation.”63
In this case, Respondent concedes that the Assessment Report constitutes
protected activity and that Complainant engaged in protected activity when she
provided her Assessment Report. But Respondent appeals the ALJ’s finding that
Complainant’s November 3, 2015 email to Captain Davis was protected activity.
Respondent argues the email cannot constitute protected activity because it did not
provide any information or raise any concerns relating to airline-safety violations,
but instead focused on Complainant’s interpersonal conflicts.
The Board concludes that the ALJ’s finding is supported by substantial
evidence. In the November 3, 2015 email, Complainant noted she recently attended
a convention at which Respondent’s then-CEO, Richard Anderson, gave a speech
discussing Delta’s compliance with the FAA-regulated SMS program. Complainant
wrote that Mr. Anderson emphasized an open-door policy for all employees relating
to safety issues but that her personal experiences were inconsistent with the SMSsafety culture described in his speech.64 Specifically, Complainant indicated that
Respondent’s inappropriate behavior and fear-based tactics were inconsistent with
SMS and a culture of safety.65 After raising allegations that Respondent engaged in
activities that “are not part of SMS, or any safety culture,” less than two months
later Complainant requested a meeting with supervisors to discuss information
relating to a purported violation of a regulation, order, or standard of the FAA or
federal law relating to air carrier safety.66 A complainant engages in protected
activity whenever she “is about to provide (with any knowledge of the employer) or
cause to be provided to the employer or Federal Government information relating to
any violation or alleged violation of any order, regulation, or standard of the
[FAA].”67 After the November 3, 2015 email, Complainant and Captain Graham
Sewade v. Halo-Flight, Inc., ARB No. 2013-0098, ALJ No. 2013-AIR-00009, slip op.
at 8 (ARB Feb. 13, 2015). See also Occhione, ARB No. 2013-0061, slip op. at 8 (“more recent
ARB precedent as well as Fourth Circuit law leads us to conclude that this specificity
standard is inappropriate and inconsistent with the AIR 21 whistleblower statute.”).
62
Newell v. Airgas, Inc., ARB No. 2016-0007, ALJ No. 2015-STA-00006, slip op. at 14
(ARB Jan. 10, 2018).
63
64
D. & O. at 23-24.
65
Id. at 24.
66
Id.
67
49 U.S.C. § 42121(a)(1) (emphasis added).
14
agreed to meet, and approximately a month and a half later, Complainant met with
Captains Graham and Dickson on January 28, 2016. At this meeting, Complainant
provided and presented her Assessment Report. Respondent does not dispute that
the Assessment Report, containing safety violation allegations, is protected activity.
Accordingly, we affirm the ALJ’s finding that Complainant’s November 3, 2015
email is protected activity.68
3.
Adverse Action
AIR 21 prohibits an employer from discharging or otherwise discriminating
“against an employee with respect to compensation, terms, conditions, or privileges
of employment” for engaging in protected conduct.69 It is illegal “to intimidate,
threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate
against any employee” who engages in protected activity.70 The Board has said that
an adverse action may also include firing, failure to hire or promote, reassignment
with significantly different responsibilities, or a decision causing a significant
change in benefits.71 “An adverse action is simply something unfavorable to an
employee, not necessarily unfair, retaliatory or illegal.”72 An adverse action is “more
than trivial” when it is “materially adverse” so as to “dissuad[e] a reasonable
worker” from protected activity.73
In describing the injury or harm alleged as retaliation, the Supreme Court
has held that: “a plaintiff must show that a reasonable employee would have found
the challenged action materially adverse, ‘which in this context means it well might
have ‘dissuaded a reasonable worker from making or supporting a charge of
See Occhione, ARB No. 2013-0061, slip op. at 10 (“[a]lthough [the complainant] did
not communicate the details of why he intended to go to the FAA on October 12 and 13,
when he informed his supervisors of his intent, it is logical to assume that it was for the
same reasons as specified in his protected communication sent a month later.”).
68
69
49 U.S.C. § 42121(a)(1).
70
29 C.F.R. § 1979.102(b).
Hirst v. Se. Airlines, Inc., ARB Nos. 2004-0116, -0160, ALJ No. 2003-AIR-00047, slip
op. at 9 (ARB Jan. 31, 2007) (citations omitted).
71
Beatty v. Celadon Trucking Servs., Inc., ARB Nos. 2015-0085, -0086, ALJ No. 2015STA-00010, slip op. at 7 (ARB Dec. 8, 2017).
72
Zavaleta v. Alaska Airlines, Inc., ARB No. 2015-0080, ALJ No. 2015-AIR-00016, slip
op. at 11 (ARB May 8, 2017). See Powers v. Paper, Allied-Indus., Chem. & Energy Workers
Int’l Union, ARB No. 2004-0111, ALJ No. 2004-AIR-00019, slip op. at 13 (ARB Aug. 31,
2007) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)) (The
question is whether the action(s) is “materially adverse,” or “that is, ‘harmful to the point
that they could well dissuade a reasonable worker from making or supporting a charge of
discrimination.’”).
73
15
discrimination.’’’74 Moreover, the Court held that the significance of any given act of
retaliation will often depend upon the particular circumstances and context.75 Any
alleged adverse action must be considered in context, including internal
investigations and hearings which may result in the imposition of discipline.76
For reasons explained below, we affirm the ALJ’s finding that Respondent
took an adverse action against Complainant, but conclude that the ALJ made a
legal error in concluding “that any referral to a Section 15 mental health evaluation
constitutes an adverse employment action.”77
The Board has previously held that not all investigations or evaluations are
automatically considered adverse actions.78 Whether an investigation or evaluation
is an adverse action is a case-by-case factual determination. “[T]he analysis of
whether an action is adverse must be contextual and include a discussion of the
circumstances in each case.”79 “[B]ringing a disciplinary charge alone, in and of
itself, does not automatically constitute an adverse action, although it can
constitute one if such action ‘would dissuade a reasonable employee’ from engaging
in the protected conduct.”80 The determination of whether an investigation or
evaluation is an adverse action is not based on the subsequent results or whether
an employee is eventually cleared of any allegations.81
In the context of AIR 21’s implementing regulations, an employer’s
investigation or initiation of a compulsory medical evaluation under negotiated
procedures mandated by a CBA is not necessarily, in and of itself, a threat or form
Burlington N., 548 U.S. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219
(D.C. Cir. 2006) (quoting Washington v. Ill. Dep’t of Revenue, 420 F.3d 658, 662 (7th Cir.
2005)).
74
75
Id. at 69.
See Thorstenson v. BNSF Ry. Co., ARB Nos. 2018-0059, -0060, ALJ No. 2015-FRS00052, slip op. at 7 (ARB Nov. 25, 2019), rev’d on other grounds, Thorstenson v. U.S. Dep’t of
Labor, 831 F. App’x 842 (9th Cir. 2020) (unpublished) (any alleged adverse action must be
considered in context, including internal investigations and hearings which may result in
the imposition of discipline).
76
77
D. & O. at 78.
Perez v. BNSF Ry. Co., ARB Nos. 2017-0014, -0040, ALJ No. 2014-FRS-00043, slip
op. at 7 (ARB Sept. 24, 2020).
78
79
Id.
Petronio v. Nat’l R.R. Pas. Corp., 2019 WL 4857579, at *6 (S.D.N.Y. 2019);
Thorstenson, ARB Nos. 2018-0059, -0060, slip op. at 7.
80
81
See Perez, ARB Nos. 2017-0014, -0040, slip op. at 7-9.
16
of intimidation.82 However, an investigation or compulsory medical evaluation can
constitute an adverse action if “it is retaliatory, a pretext, performed in bad faith, or
otherwise constitutes harassment.”83 An investigation or a compulsory medical
evaluation might accompany other material consequences that affect the employee’s
terms, conditions, and privileges of employment or otherwise dissuade a reasonable
employee from engaging in protected activity.84
Again, whether an employer’s investigation or evaluation is an adverse action
is a case-by-case factual determination. Factors that may be considered include, but
are not limited to, the length of investigation,85 whether the investigation is used as
a form of harassment (bad faith investigation), whether it was a routine
investigation (good faith investigation), or whether the employee was treated
differently than similarly situated employees who did not engage in protected
activity.
On appeal, Respondent argues that ensuring a pilot is fit to fly cannot
inherently constitute an adverse action as a matter of law.86 We are mindful of the
paramount importance of Respondent’s Section 15 process to achieve safety in the
skies. However, to hold that the initiation and application of an investigation or
It is illegal “to intimidate, threaten, restrain, coerce, blacklist, discharge or in any
other manner discriminate against any employee” who engages in protected activity. 29
C.F.R. § 1979.102(b). See also Perez, ARB Nos. 2017-0014, -0040, slip op. at 8 (quoting
Brisbois v. Soo Line R.R. Co., 124 F. Supp. 3d 891, 903 (D. Minn. 2015) (“To hold that a rail
worker suffers an adverse employment action any time a rail carrier attempts to determine
whether she has violated a rule—typically by following an investigatory process mandated
under a CBA—would have major implications for labor relations in the rail industry.”).
82
83
Perez, ARB Nos. 2017-0014, -0040, slip op. at 9.
Renzi v. Union Pac. R.R. Co., 2018 WL 3970149, at *4-5 (N.D. Ill. Aug. 20, 2018)
(citing Vernace v. Port Auth. Trans-Hudson Corp., ARB No. 2012-0003, ALJ No. 2010-FRS00018, slip op. at 2 (ARB Dec. 21, 2012), for the point that investigations can constitute
adverse actions but that “context matters” when making this assessment).
84
See Vernace, ARB No. 2012-00003, slip op. at 3 (an investigation extending over a
year constituted prohibited retaliation under the FRSA).
85
For support of its argument that the Section 15 process cannot constitute an adverse
action, Respondent relies on Estabrook v. Fed. Express Corp., ARB 2017-0047, ALJ 2014AIR-00022, slip op. at 11-12 n.7 (ARB Aug. 8, 2019). In Estabrook, the Board stated in a
footnote that “[w]hile we do not disturb the ALJ’s findings and conclusions, we note that an
employer’s directive to a pilot to undergo a psychological examination, in and out of itself, is
not an adverse action” because it “is part of an air carrier’s safety responsibility for
employing a pilot.” Id. However, the employer in Estabrook did not appeal to the Board the
ALJ’s finding that the employer’s directive to comply with a medical examination was an
adverse action. Accordingly, Respondent’s reliance on Estabrook is erroneous because the
footnote constitutes dicta.
86
17
evaluation could never be an adverse action under the law could insulate the
employer from liability when the employer’s investigation or evaluation is
motivated by an employee’s protected activity. That possibility alone would deter
employees from engaging in protected activity because of fear of misuse of the
Section 15 process and its potentially negative impact on their careers. This would
obviously undermine the utility of Section 15.
On the other hand, to provide that “any” application of the Section 15 process
is an adverse action could open up employers to lawsuits virtually any time the
process is used—in turn deterring the willingness of employers to initiate a Section
15 referral even when cautionary signs arise. Hence, a balance must be struck
between these competing goals, which effectively must be done on a case-by-case
basis. We believe we have done so here in concluding, that on the facts of this case,
the initiation and application of the section 15 process was indeed an adverse
action, as explained below.
In his adverse action analysis, the ALJ found “that Complainant was
subjected to the Section 15 process for 21 months where her very career h[ung] in
the balance.”87 The ALJ noted that during this period Complainant’s FAA airman
medical certificate was placed in jeopardy. The ALJ also considered the emotional
toll such a process would have on a pilot who depends on having a valid medical
certificate to perform her profession. Additionally, Captain Graham’s November
2015 emails demonstrate that he had a “knee jerk” reaction to Complainant’s
protected activity and was quick to suggest referring Complainant to the Section 15
process even before the alleged troubling behavior during the Nabors-Petitt meeting
had occurred.88
Whether an employer’s investigation will constitute an adverse action
depends on the factual circumstances. In the current case, the ALJ’s finding that
the Section 15 process against Complainant was adverse, and a bad faith
investigation is supported by substantial evidence. Accordingly, we affirm the ALJ’s
finding that Complainant suffered an adverse action when Respondent referred her
for a Section 15 evaluation.
87
D. & O. at 80.
After engaging in protected activity, but prior to the Nabors-Pettit meeting, Captain
Graham referenced initiating the Section 15 process against Complainant on two separate
occasions. On November 9, 2015, Captain Graham emailed Captain Miller: “Probably good
to engage HR again at this point given this latest email to Phil as I believe we could find
ourselves being accused of inappropriate wrongdoing by her and we need to start the
tracking for this phase. I also think we should consider whether a section 15 is
appropriate.” CX-11 at 2; D. & O. at 85. On November 16, 2015, Captain Graham emailed
Captain Dickson: “just FYI I will brief HR and handle this with kid gloves. She could be a
candidate for a Section 15 after this goes through.” CX-7 at 1; D. & O. at 85.
88
18
4.
Contributing Factor
Complainant has the burden to prove, by a preponderance of the evidence,
that the protected activity was a contributing factor in the adverse action. A
“‘contributing factor’ includes ‘any factor, which alone or in connection with other
factors, tends to affect in any way the outcome of the decision.’”89 While an inference
of discrimination may arise when an adverse action closely follows a particular
activity, an intervening event diminishes the inference.90
Respondent first argues that the ALJ made a legal error by applying legally
flawed theories of chain-of-events causation and therefore, reversal is required. In
his contributing factor analysis, the ALJ stated Complainant could meet her burden
by proving that her protected activity was a contributing factor to the adverse
employment decision, and that proof of actual discriminatory or retaliatory intent
was not required.91 The ALJ discussed recent Board precedent, and properly stated
that ALJs are no longer required to apply the chain-of-events or inextricably
intertwined theories, but must explain how protected activity is a contributing
factor to the adverse action.92 We find the ALJ applied the correct legal standard in
his analysis.
Alternatively, Respondent argues the Nabors-Petitt meeting was an
intervening factor that broke any causal chain from Complainant’s protected
activity to the adverse employment action. Once there is an intervening event that
independently could have caused the adverse action, there is no longer a logical
reason to infer a causal relationship between the activity and the adverse action.93
The ALJ’s finding that Complainant’s protected activity was a contributing
factor in the adverse action is supported by substantial evidence. Respondent’s
argument of an intervening event is unpersuasive. As discussed above, the record
shows that Captain Graham was quick to propose that Complainant was a
Rookaird v. BNSF Ry. Co., 908 F.3d 451, 461-62 (9th Cir. 2018) (quoting Gunderson
v. BNSF Ry. Co., 850 F.3d 962, 969 (8th Cir. 2017)).
89
Acosta v. Union Pac. R.R. Co., ARB No. 2018-0020, ALJ No. 2016-FRS-00082, slip
op. at 6-12 (ARB Jan. 22, 2020) (analyzing temporal proximity, inference of retaliation,
intervening events, and proof by a preponderance of the evidence).
90
D. & O. at 83 n.222, 97. Our affirmance of the ALJ’s D. & O. is not necessarily an
endorsement of each point of the ALJ’s reasoning.
91
92
Id. at 83.
Tracanna v. Arctic Slope Inspection Serv., ARB No. 1998-0168, ALJ No. 1997-WPC00001, slip op. at 8 (ARB July 31, 2001).
93
19
candidate for the Section 15 process after the November 3, 2015 email, but months
before the Nabors-Petitt meeting.94
Therefore, the Board finds that the ALJ applied the correct legal standard,
and that his finding that Complainant’s protected activity was a contributing factor
in the adverse employment action taken against her is supported by substantial
evidence and is consistent with the law.
5.
Affirmative Defense
After Complainant establishes her case, the Act provides, “[r]elief may not be
ordered . . . if the employer demonstrates by clear and convincing evidence that the
employer would have taken the same unfavorable personnel action in the absence of
that behavior.”95 “Clear and convincing evidence or proof denotes a conclusive
demonstration; such evidence indicates that the thing to be proved is highly
probable or reasonably certain.”96
Respondent argues that remand is necessary in this matter because the ALJ
erroneously applied the wrong legal standard. We recognize that the ALJ erred in
stating that “Respondent must prove clearly and convincingly that it, in no way,
considered her protected activity when instituting the Section 15.”97 An ALJ’s
analysis only proceeds to the same-action defense if the complainant’s protected
activity was a contributing factor. By imposing upon the employer this requirement
that it in “no way considered” the Complainant’s protected activity, the ALJ double
credits the contributing factor standard and deprives the Respondent of the
affirmative defense.98 However, this statement appears to be a harmless error by
the ALJ as he also cited and accurately applied the correct legal standard.99
The Board has held that an ALJ’s factual findings will be upheld when they
are supported by substantial evidence, even if there is also substantial evidence for
Captain Graham proposed referring Complainant to the Section 15 process on
November 9, 2015, and November 16, 2015. D. & O. at 86; CX-11 at 2; CX-7 at 1.
94
95
49 U.S.C. § 42121(b)(2)(B)(iv).
Clemmons v. Ameristar Airways, Inc., ARB No. 2008-0067, ALJ No. 2004-AIR-00011,
slip op. at 11 (ARB May 26, 2010).
96
97
D. & O. at 99.
Clem v. Comput. Sci. Corps., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003, 00004, slip op. at 15 (ARB Sept. 17, 2019).
98
99
D. & O. at 98-99.
20
the other party.100 Our role is not to determine whether or not we might have
reached a different result based on the record, but rather to determine if the ALJ’s
findings, which we have closely examined, are supported by substantial evidence,
consistent with the law. Substantial evidence is “‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”101
The ALJ concluded that Respondent shifted rationales for conducting the
Section 15 process, and that these “proffered reasons for Respondent’s actions do
not clearly and convincingly establish that Respondent would have taken the
adverse employment actions suffered by Complainant even in the absence of her
protected activity.”102 The conclusion that Respondent’s shifting rationales
undermine the required “clear and convincing” standard is supported by substantial
evidence. The ALJ also noted Captain Graham’s “knee-jerk reaction to
Complainant’s November 3, 2015 email where she discussed protected activity,” and
that this “knee-jerk reaction” occurred again after the Nabors-Petitt meeting when
he “went forward with the Section 15 without even speaking to Complainant’s direct
supervisor, Captain Davis, or even giving Complainant the opportunity to see or
address Ms. Nabors’ version of events.”103 Accordingly, because the ALJ’s finding is
supported by substantial evidence, and is consistent with the law, we affirm.
6.
Damages
Having concluded that substantial evidence supports the ALJ’s findings that
Respondent violated AIR 21 and is unable to avoid liability through a same-action
defense, we address each of Respondent’s arguments as to damages below.104
Henrich v. Ecolab, Inc., ARB No. 2005-0030, ALJ No. 2004-SOX-00051, slip op. at 8
(ARB June 29, 2006) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
100
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citing and quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)).
101
102
D. & O. at 101.
103
Id. at 99, 101.
Respondent did not challenge the ALJ’s order to publish the D. & O. to pilots and
managers in the flight operations department as well as to post copies of the decisions at
various locations. See Yates, ARB No. 2017-0061, slip op. at 10 (reversing ALJ’s order for
Respondent to email decision to various individuals).
104
21
A. Front Pay Damages
Victims of discrimination are presumptively entitled to reinstatement.105 An
award of damages in the form of “front pay” is “money awarded for lost
compensation during the period between judgement and reinstatement or in lieu of
reinstatement.”106 Front pay is the “monetary equivalent” of reinstatement.”107
Front pay is appropriate where reinstatement is not possible.108 “Reinstatement and
front pay are alternative remedies, which cannot be awarded for the same period of
time.”109 Front pay may be awarded in lieu of reinstatement in circumstances where
reinstatement is impossible or impractical, and alternative remedies are necessary.
Examples of impossibility or impracticability include job unavailability, and
whether the parties have demonstrated “the impossibility of a productive and
amicable working relationship.”110
The awards of front pay and lost future earnings serve different goals and
compensate the complainant for different injuries.111 Front pay compensates a
complainant for the “immediate effects” of an unlawful termination or a loss of
position or seniority,112 and is designed to place the complainant “in the identical
financial position that he [or she] would have occupied had he been reinstated.”113
Comparatively, an award for lost future earnings compensates a complainant “for a
lifetime of diminished earnings resulting from the reputational harms she suffered
as a result of [an employer’s] discrimination.”114
See Ass’t Sec’y of Lab. for Occupational Safety and Health & Bryant v. Mendenhall
Acquisition Corp., ARB No. 2004-0014, ALJ No. 2003-STA-00036, slip op. at 7 (ARB June
30, 2005) (citing Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1171 (6th Cir. 1996)).
105
106
Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001).
Traxler v. Multnomah Cnty., 596 F.3d 1007, 1012 (9th Cir. 2010) (quoting Pollard,
532 U.S. at 853 n.3).
107
Berkman v. U.S. Coast Guard Acad., ARB No. 1998-0056, ALJ Nos. 1997-CAA00002, -00009, slip op. at 27 (ARB Feb. 29, 2000) (citation omitted); see also Luder v. Cont’l
Airlines, Inc., ARB No. 2010-0026, ALJ No. 2008-AIR-00009, slip op. at 15 (ARB Jan. 31,
2012).
108
109
Teutscher v. Woodson, 835 F.3d 936, 954 (9th Cir. 2016).
Creekmore v. ABB Power Sys. Energy Servs., Inc., No. 1993-ERA-00024, slip op. at
10 (Sec’y Feb. 14, 1996).
110
111
Williams v. Pharmacia Ophthalmics, Inc., 137 F.3d 944, 953 (7th Cir. 1998).
112
Id.
113
Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1231 (7th Cir. 1995).
Williams, 137 F.3d at 953; see id. at 954 (“Whereas front pay compensates the
plaintiff for the lost earnings from her old job for as long as she may have been expected to
114
22
It is undisputed that Complainant’s employment was not terminated, and
that she did not suffer, for example, a loss of position or seniority. Instead,
Respondent placed Complainant on disability status when the Section 15 process
started, and once the process concluded, Respondent returned her to flight status
and she resumed her position as First Officer with the same pay and same terms
and conditions of employment. Consequently, the ALJ was unable to reinstate
Complainant to her position as First Officer as an award.115 Thus, the ALJ awarded
front pay in the form of increasing Complainant’s salary.116 Specifically, the ALJ
ordered that “Respondent must compensate Complainant at a wage no lower than
the highest salary provided for any other Respondent-First Officer. That wage must
remain in effect until, if, and when Complainant obtains a position that commands
a greater salary.”117
We conclude that the ALJ erred in this award. A front pay award is meant to
“approximate[]” the consequences of an unlawful termination, or a loss of position or
seniority.118 The ALJ’s award of front pay in the form of presumably increasing
Complainant’s salary does not remedy the effects an unlawful termination or loss of
position or seniority, nor does the award put Complainant back to the identical
financial position that she was in prior to the AIR 21 violation. Rather, if this front
pay award were executed, Complainant would be in a better position than she was
prior to the violation because of a salary increase. Accordingly, the Board vacates
the ALJ’s award of front pay damages.
However, “[w]hen reputational injury caused by an employer’s unlawful
discrimination diminishes a plaintiff’s future earnings capacity, she cannot be made
whole without compensation for the lost future earnings she would have received
absent the employer’s unlawful activity.”119 Though under the heading of “front
hold it, a lost future earnings award compensates the plaintiff for the diminution in
expected earnings in all of her future jobs for as long as the reputational or other injury
may be expected to affect her prospects.”).
See Pollard, 532 U.S. at 846 (defining “front pay” as “money awarded for lost
compensation during the period between judgment and reinstatement or in lieu of
reinstatement”).
115
The record does not conclusively indicate that the ALJ’s award was an increase in
her salary, but we assume that is the case.
116
117
D. & O. at 106.
Williams, 137 F.3d at 952 (“front pay is the functional equivalent of reinstatement
because it is a substitute remedy that affords the plaintiff the same benefit (or as close an
approximation as possible) as the plaintiff would have received had she been reinstated.”).
118
119
Hite v. Vermeer Mfg. Co., 361 F.Supp.2d 935, 946 (S.D. Iowa 2005).
23
pay,” the ALJ described his award as an award of future lost earnings.120 In his
analysis, the ALJ considered how Respondent’s violation of AIR 21 would
significantly damage Complainant’s reputation and her future career in the
aviation industry, and as a result, her lost future earnings.121 However, the ALJ’s
extensive analysis is not based on evidence, but rather, is based on mere
speculation. Complainant did not put forward evidence of damage to reputation
supporting an award of future loss of earnings. On remand, the ALJ may reopen the
record to determine whether Complainant can prove that Respondent’s violation of
AIR 21 caused lost future earnings.122
B. Compensatory Damages
Compensatory damages are to be awarded in addition to other remedies
designed to restore the complainant’s financial losses.123 The relief must be
“proportionate to the harm inflicted.”124 Compensatory damages are available for
emotional pain and suffering, mental anguish, embarrassment, and humiliation.125
To recover compensatory damages under the Act, a complainant must show by a
preponderance of the evidence that she experienced mental suffering or emotional
anguish, and that the unfavorable personnel action caused the harm.126 The Board
has held that while the testimony of medical or psychiatric experts “may strengthen
the case for entitlement to compensatory damages,” it is not required.127 The ARB
“The question becomes how does this Tribunal evaluate the loss of future earnings?”
D. & O. at 106.
120
“Respondent has permanently damaged Complainant’s reputation within the
aviation community and the likelihood of her being able to obtain promotion in the ranks is
practically non-existent. The likelihood of her seeking other employment until retirement is
remote, let alone being hired, because of her disclosures about safety issues.” Id.
121
“An award of lost future earnings is a common-law tort remedy.” Williams, 137 F.3d
at 952 (finding that complainants may recover lost future earnings under Title VII as a
nonpecuniary injury and explaining “lost future earnings [is] an ‘injury to professional
standing’ and [an] ‘injury to character and reputation.”) (internal citations omitted).
122
123
Blackburn v. Martin, 982 F.2d 125, 132 (4th Cir. 1992).
Wallum v. Bell Helicopter Textron, Inc., ARB No. 2009-0081, ALJ No. 2009-AIR00006, slip op. at 3 (ARB Sept. 2, 2011).
124
See Rooks v. Planet Airways, Inc., ARB No. 2004-0092, ALJ No. 2003-AIR-00035,
slip op. at 10 (ARB June 29, 2006).
125
Evans v. Miami Valley Hosp., ARB Nos. 2007-0118, -0121, ALJ No. 2006-AIR-00022,
slip op. at 20 (ARB June 30, 2009) (citation omitted).
126
Jones v. EG&G Def. Materials, ARB No. 1997-0129, ALJ No. 1995-CAA-00003, slip
op. at 23 (ARB Sept. 29, 1998) (citations omitted). See also Smith v. ESICORP, ARB No.
1997-0065, ALJ No. 1993- ERA-00016, slip op. at 4 (ARB Aug. 27, 1998) (the ARB awarded
127
24
has confirmed compensatory damage awards for emotional distress, even absent
medical evidence, where the witness statements are “credible” and “unrefuted.”128
The absence of objective evidence supporting a claim of remedies may, however,
affect the amount of the award.129
In this case, the ALJ awarded $500,000 in non-economic compensatory
damages as an award for emotional distress, humiliation, and loss of reputation. In
awarding $500,000, the ALJ relied on Complainant’s testimony, finding that she
“credibly described the sleepless nights she experienced associated with enduring
the events.”130 In addition to Respondent’s direct actions, the ALJ noted the “cruelty
of receiving Dr. Altman’s findings on Christmas Eve wherein [Complainant] was
summarily notified that her flying career was potentially over” and that
Complainant “note[d] the drama associated with her psychological testing which
she had to endure several times.”131 Lastly, the ALJ found that “[d]uring this entire
ordeal, Complainant had every reason to fear the loss of her professional flying
career if not her very ability to fly” and that “[t]he evidence establishes
Complainant’s lifelong passion for aviation and it is not hard to understand the
mental anguish she felt in the potential of wrongly losing something so dear and
something she worked so hard to obtain.”132
Previously the Board upheld an ALJ’s award of compensatory damages of
$250,000 for emotional distress, humiliation, and loss of reputation based solely on
compensatory damages of $20,000 based on the severity of the retaliation the complainant
experienced, and the testimony of the complainant and his wife as to the mental and
emotional injury suffered).
Hobson v. Combined Transp., Inc., ARB Nos. 2006-0016, -0053, ALJ No. 2005-STA00035, slip op. at 8 (ARB Jan. 31, 2008) (ARB affirmed award for emotional distress based
on complainant’s testimony alone where it was “unrefuted and, according to the ALJ,
credible.”). See also Ferguson v. New Prime, Inc., ARB No. 2010-0075, ALJ No. 2009-STA00047, slip op. at 7-8 (ARB Aug. 31, 2011); Shields v. James E. Owen Trucking, Inc., ARB
No. 2008-0021, ALJ No. 2007-STA-00022, slip op. at 13 (ARB Nov. 30, 2009).
128
Thomas v. Arizona Pub. Serv. Co., No. 1989-ERA-00019, slip op. at 14 (Sec’y Sept.
17, 1993) (in which the Secretary held that “While [he found] that Thomas’ testimony was
sufficient to establish entitlement to compensatory damages, the demonstrated humiliation
concerning the withdrawal of her test certifications does not justify the full amount of
damages she seeks for it, $5,000.”); Lederhaus v. Paschen & Midwest Inspection Servs.,
Ltd., No. 1991-ERA-00013, slip op. at 7-8 (Sec’y Oct. 26, 1992) (reducing the ALJ’s award to
$10,000 for compensatory damages for depression, behavior changes, and monetary
difficulties resulting from discriminatory discharge).
129
130
D. & O. at 108.
131
Id.
132
Id.
25
an employee’s testimony.133 In Hobby, although there was no expert medical or
psychiatric testimony, the ALJ relied on the employee’s testimony as to the
detrimental effect that the loss of his employment, underemployment for over eight
years, inability to find other work in his chosen profession or comparable
employment, and the loss of the chance for future promotion and/or salary increases
had on him and his mental state. The Board found the award reasonable because
the ALJ noted the employee’s descriptions of the “emotional distress tied to his
depleted finances, repeated requests of friends and family for money, and the
obligation to inform those responsible for his professional development that he [had]
been fired” from his employment.134 The ALJ in Hobby cited that prior to the
discrimination, Complainant had been offered a VP position with a different
company.135 After the discrimination, his resume did not circulate for a subordinate
position reporting to the VP. Testimony indicated that Complainant was on track
for a position as CEO. Ultimately, he had to accept a job as file clerk to pay basic
living expenses.
In light of Complainant’s high level position, his unemployment and
underemployment for over eight years, his inability to find any work
within the nuclear community, and the detrimental effect his protected
activity has had on any chances of future promotion and future salary
increases, and in light of the emotional stress Complainant endured due
to his termination and inability to find comparable employment, I find
that an order of compensatory damages in the amount of $250,00.00 is
reasonable.136
Similarly, in Evans, the Board affirmed an award of compensatory damages
supported by an employee’s testimony that he “suffered damages to his reputation
and marriage as well as mental anguish and depression.”137 Complainant was
Hobby v. Georgia Power Co., ARB Case Nos. 1998-0166, -0169, ALJ Case No. 1990ERA-00030, slip op. at 31-33 (ARB Feb. 9, 2001).
133
134
Id. at 26.
135
Hobby v. Georgia Power Co., ALJ No. 1990-ERA-00030, slip op. at 68 (ALJ Sept. 17,
1998).
136
Id. at 69.
Evans, ARB Nos. 2007-0118, -0121, slip op. at 21 (“Evans testified that he waited for
a few months after his August 2006 termination to start looking for a pilot’s job because he
and his wife had a newborn child, and he was trying to sell real estate after obtaining his
license. The market fell apart, however. Evans testified that he contacted other companies
and found a position in January 2006, but the job offer was rescinded after the company
contacted CJ. Not until the following November was Evans able to begin work for Air
Methods, but he had to travel from Dayton to Portsmouth, Ohio and stay overnight at
motels during the week.”).
137
26
unemployed for 62 weeks.138 Complainant sought therapy and was under
prescription medication for depression and anxiety.139 In Evans, the Complainant’s
testimony was also supported by testimony of his wife who described how his
termination affected him both physically and emotionally, and affected their family
life. Complainant’s wife had intended to be a stay-at-home mom, but had to take a
job after Complainant’s termination. Complainant also suffered damage to
reputation. He was unable to find work at places he had previously worked. He was
offered a position, but once they found out who his previous employer was, he was
fired the very same day.140 These facts constituted substantial evidence to support
the ALJ’s award of $100,000 in non-economic compensatory damages relating to
emotional distress, humiliation, and loss of reputation.141
Although the ALJ cited these cases and others in his analysis, we conclude
that the ALJ did not accurately compare them to the facts and evidence in this case.
In comparison to the above-cited examples, the record in this case is insufficient to
support the ALJ’s award of $500,000 in non-economic compensatory damages. The
evidence of record consists of damages that normally accompany a retaliatory
discharge.142 As currently stated, Complainant’s testimony lacks sufficient support
to prove that her emotional distress was severe, and that her humiliation, and loss
of reputation supports an award in the amount of $500,000.
Importantly, the record does not reflect that Complainant lost income and
suffered the consequences of lost income as demonstrated in other cases where a
large award was affirmed. Complainant did not support her claim with supporting
medical or professional evidence, or testimony from her family supporting her claim
that Respondent’s unfavorable personnel action caused severe mental suffering or
emotional anguish. Although expert medical or psychiatric testimony is not
required, the ALJ’s analysis solely relied on Complainant’s testimony that she
suffered sleepless nights but otherwise speculated to the loss of reputation that she
might have endured.143 There is no other evidence in the record indicating that any
mental or psychological condition was attributable to the retaliation she suffered.
138
Id. at 21.
139
Id. at 22.
140
Evans v. Miami Valley Hosp., ALJ No. 2006-AIR-00022, slip op. at 53 (ALJ Aug. 31,
2007).
141
Evans, ARB Nos. 2007-0118, -0121, slip op. at 22.
Quinby v. Westlb AG, No. 04 Civ. 7406, 2008 WL 3826695, at *4 (S.D.N.Y. Aug. 15,
2008) (citing Lynch v. Town of Southampton, 492 F.Supp.2d 197, 207 (E.D.N.Y. 2007)
(collecting cases reducing awards as excessive).
142
The ALJ found Complainant “will be subject to flight line gossip and there will be a
lingering question of her true flying abilities” and that there will be “permanent damage to
143
27
Accordingly, we vacate the award of compensatory damages and instruct the
ALJ on remand to reconsider this award in light of other cases with similar
characteristics as Complainant’s. On remand, the ALJ may reopen the record to
take additional evidence on Complainant’s emotional distress, humiliation, and loss
of reputation as a result of Respondent’s adverse action taken against her after
engaging in protected activity.
C. Back Pay Damages
An award of back pay should be awarded to restore the complainant to the
position she would have been in absent the unlawful retaliation.144 In this case, the
ALJ found “but for the retaliatory acts that occurred . . . [Complainant] would not
have had to exhaust her vacation to avoid being placed on disability-pay” and
ordered Respondent “to reimburse her either the vacation days she used to avoid
being placed on disability, or pay her the $52,522.03 calculated by Complainant.”145
The ALJ’s decision to award back pay damages is warranted and in
accordance with the law. More specifically, the facts supporting the decision to
award such relief are supported by substantial evidence. As addressed above,
Respondent used the Section 15 process in a retaliatory fashion in this case.
Complainant, to avoid being paid half of her normal earnings via disability status
for as long as possible, depleted her accrued vacation leave while waiting for the
Section 15 process to conclude. We affirm the ALJ’s award of back pay damages
because it restores Complainant to the position she would have been in the absence
of Respondent’s unlawful retaliation.
her reputation within the aviation community regardless of this Tribunal’s ruling.” D. & O.
at 108.
144
Blackburn, 982 F.2d at 129.
145
D. & O. at 104.
28
CONCLUSION
We AFFIRM the ALJ’s conclusion that Respondent violated AIR 21’s
employee protection provision and that it could not meet its same-action defense
because substantial evidence in the record as a whole supports the findings
underlying his conclusions.146 We also AFFIRM the ALJ’s award of back pay
damages. We VACATE the ALJ’s front pay award as legal error and VACATE the
award of compensatory damages for lack of evidentiary support. As a result, we
REMAND the case for further proceedings consistent with this opinion.
SO ORDERED.
All pending motions before the Board in this case, including a request for oral
argument, are therefore moot.
146
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.