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200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

MICHAEL NEELY,

COMPLAINANT,

ARB CASE NO.

2020-0071

ALJ CASE NO.

2018-AIR-00019

DATE: May 19, 2022

THE BOEING COMPANY,

RESPONDENT.

Appearances:

For the Complainant:

Michael Neely; Pro Se; Huntsville, Alabama

For the Respondent:

Mack H. Shultz, Esq. and Laura C. Hill, Esq.; Perkins Coie LLP;

Seattle, Washington

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

Randel K. Johnson and Stephen M. Godek, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. This case arises under the Wendell H. Ford Aviation Investment

and Reform Act for the 21st Century (AIR 21).1 Complainant Michael Neely (Neely)

filed a complaint alleging that his former employer, Respondent The Boeing

Company (Boeing), retaliated against him in violation of AIR 21’s whistleblower

(2021).

49 U.S.C. § 42121 (2020), as implemented by the regulations at 29 C.F.R. Part 1979

protection provisions. After a formal hearing, a United States Department of Labor

Administrative Law Judge (ALJ) issued a Decision and Order Denying Relief (D. &

O.) and dismissed Neely’s complaint. Neely appealed the ALJ’s decision to the

Administrative Review Board (ARB or the Board). For the reasons set forth below,

we affirm the ALJ’s decision.

BACKGROUND

1. Neely’s Employment with Boeing and Assignment to the 777X Program

Neely began working for Boeing in 1995.2 Most recently, he served as a

Project Engineer, Level 5 (PE-5) at Boeing’s Huntsville Design Center (HDC) in

Huntsville, Alabama.3 Neely reported to John Jones at the HDC until January 9,

2015, when Dane Richardson replaced Jones.4 Richardson remained Neely’s direct

supervisor for the remainder of Neely’s employment.5

In early to mid-2014, Neely had two separate travel assignments to Boeing’s

facility in Everett, Washington, to work on the 777X, a new aircraft in the nascent

stages of development.6 In October 2014, Neely began a longer-term, but still

temporary, travel assignment to Everett working on the 777X’s Electrical Load

Management System (ELMS).7 As described by the ALJ, the ELMS serves as the

“nerve center of the electrical system that monitors the electrical power from the

primary, backup and standby generating sources on the aircraft.”8 The ELMS is a

critical component of the 777X, and affects items such as fuel quantity, refuel

control, fuel management, cargo fire extinguishing, hydraulic pumps, and passenger

oxygen mask deployment.9 Neely was asked to assist the ELMS team in validating

D. & O. at 8.

Id.

Id. at 12.

Id.

Id. at 9, 11-12.

Id. at 12-13.

Id. at 7 n.17.

Id. at 10.

ELMS’s system requirements.10 Those requirements were to be delivered to a

vendor, General Electric Aviation (GE), which would design and build the system.11

As a practical matter, Jones and Richardson had little oversight over Neely’s

work on the ELMS program.12 Neely’s day-to-day work on the ELMS team was

overseen by two ELMS managers in Everett, Anthony De Genner and David

Demars, who served as Neely’s functional first- and second-line supervisors,

respectively.13

2. Neely’s Concerns with ELMS and Alleged Protected Activity

As a new aircraft, the 777X required regulatory approval from the United

States Federal Aviation Administration (FAA) through a process known as type

certification. In this lengthy and detailed process, the FAA reviews the design of the

aircraft and its component parts, and ensures they comply with all applicable

regulations, including the FAA’s safety and air-worthiness regulations.14

Neely alleges that almost immediately after he joined the ELMS team, he

discovered Boeing was not adhering to the development and design processes and

plans to which it was committed as part of the type certification process for the

777X.15 In particular, Neely became concerned with, and complained about, Boeing

releasing unvalidated (or partially validated) and defective system requirements to

GE.16 Given the significance of ELMS to the operation of the aircraft, Neely argues

Id. at 14. Validation involves reviewing the system requirements to ensure they are

complete, current, feasible, and unambiguous. Hearing Transcript (Tr.) at 285.

D. & O. at 13.

Id. at 12.

Id. at 12 & nn.33-34.

See 14 C.F.R. Part 21; FAA Order 8110.4C, Type Certification (2017); see also 14

C.F.R. Part 25 (air-worthiness regulations for transport category aircraft); see generally

Complainant’s Exhibit (CX) 304 (Expert Report of Vance Hilderman); Respondent’s Exhibit

(RX) 62 (Expert Report of William Ashworth). The FAA had not yet approved the 777X for

type certification as of the hearing in this case.

D. & O. at 14; Complainant’s Appeal Brief (Comp. Br.) at 23, 49-51; Tr. at 205-06;

364-66, 390-91, 465-66. Specifically, Neely cites 14 C.F.R. § 25.1309(a), which states “[t]he

equipment, systems, and installations whose functioning is required by this subchapter,

must be designed to ensure that they perform their intended functions under any

foreseeable operating condition.”

D. & O. at 14, 16; Comp. Br. at 53; Tr. at 509-10, 1087.

these defective and unvalidated requirements and broken processes could lead to

unsafe, and potentially catastrophic, design flaws in the system and would not

satisfy the air-worthiness regulations and type certification requirements.17

Neely raised concerns about Boeing’s release of unvalidated or partially

validated requirements and other ELMS issues to De Genner, Demars, Richardson

and others on the ELMS team on multiple occasions between December 2014 and

November 2015.18 Neely escalated his concerns by filing formal internal corporate

complaints on November 6 and 7, 2015.19 Neely also filed a complaint with the FAA

regarding Boeing’s conduct on or about March 9, 2016.20 He asserts each of these

complaints constituted protected activity under the Act.

3. Neely’s Poor Interpersonal Skills and 2015 Performance Evaluation

The record reflects that although Neely possessed proficient technical skills,

during his time on the ELMS team in 2015, he proved to be abrasive, rude, and

unprofessional in his interactions with supervisors, peers, and contractors. Neely’s

supervisors described him as combative, disrespectful, aggressive, and belligerent,

and stated he was inconsiderate, intolerant, and overly critical of others.21 Neely’s

colleague on the 777X program, Kelsie DeFrancisco, offered a similar view,

testifying that Neely could be demoralizing, disrespectful, bullying, and relentless

in his communications with others.22 She expressed that working with Neely was

the most negative experience of her career.23 Managers also testified Neely was

unwilling to accept opinions that differed from his own, laid blame on others, and

perceived ill motives and malintent from his colleagues.24 Examples of Neely’s

contemporaneous written communications in the record substantiate the witnesses’

Comp. Br. at 23, 55, 63; Tr. at 364-66, 509-10.

D. & O. at 30-31, 39-40.

CX 182, 183. Neely also states he filed a similar internal complaint in October, 2015.

Comp. Br. at 30-31. There does not appear to be a record or copy of this October complaint

in the exhibits admitted at the hearing.

RX 76-78. The FAA determined Neely’s complaints were not substantiated. RX 81-

83.

D. & O. at 21; Tr. at 1709-10, 1713-14, 1759.

D. & O. at 21 n.63; Tr. at 1452-56, 1473-75.

Tr. at 1455.

Id. at 1190-91, 1249-50, 1710, 1713, 1759-60; D. & O. at 21-22.

testimony, and reflect inappropriate and accusatory language and excessive use of

exclamation points and capital letters.25 De Genner explained he received

complaints from more than a dozen individuals on the ELMS team, from members

of other Boeing teams and organizations, and from GE about Neely’s behavior.26

Neely’s interactions with others grew worse as his time on the ELMS team

progressed, to the point where Neely’s managers had to intervene to resolve

conflicts involving Neely on at least a weekly or bi-weekly basis.27 Neely’s

supervisors testified they tried to coach Neely and offer feedback to him on

numerous occasions, but Neely was unwilling to accept feedback or responsibility

for his behavior.28

In late 2015, Richardson began preparing Neely’s 2015 annual performance

evaluation. Evaluations were divided into two primary categories, each of which

contained several individual performance measures. The primary categories were

Business Goals and Objectives (BG&Os), which were goals tailored to the duties

assigned to the employee, and Performance Values, which were general

characteristics every employee was expected to display.29 Employees received

ratings for each individual performance measure, and overall scores for BG&Os and

for Performance Values.30

On October 21, 2015, Richardson sought De Genner’s and Demars’ input for

Neely’s performance evaluation.31 De Genner and Demars provided written

feedback and recommended numerical scores for each of Neely’s performance

measures.32 Both were satisfied with Neely’s technical abilities and project

management skills, but were critical of Neely’s interpersonal skills and interactions

with others.33 Richardson incorporated De Genner’s and Demars’ feedback into

D. & O. at 21-23 & nn.64, 72; Tr. at 1761-69.

D. & O. at 21-22, 23 n.65; Tr. at 1711-13; RX 21. DeFrancisco testified she also

received complaints from GE about Neely’s behavior. Tr. at 1456-57, 1467-68.

Id. at 1461-63, 1709, 1722, 1759-60; D. & O. at 23 n.65, 24 n.69.

D. & O. at 22; Tr. at 1238-42, 1720-22, 1727-28, 1769-71.

D. & O. at 20.

See CX 8, 216, 261.

D. & O. at 24.

Id.; RX 38.

D. & O. at 24; RX 38.

Neely’s evaluation nearly verbatim.34 Richardson rated Neely as “3 Met Objectives”

for each of his individual BG&Os and as “4 Exceeds Expectations” or “3 Met

Objectives” for several of his Performance Values.35 However, Richardson rated

Neely as “2 Met Some Expectations” for the Performance Values of

“Communication” and “Customer Satisfaction,” and as “1 Does Not Meet” for the

Performance Value of “People Working Together.”36 Richardson also rated Neely as

“2 Met Some Expectations” overall for the Performance Value category.37

Richardson explained the manner in which Neely interacted with others was an

anathema to the HDC’s standards and the professional decorum expected for a

service position like Neely’s.38

4. Reduction in Force and Neely’s Layoff

In October 2015, Demars learned the ELMS budget was going to be reduced

by approximately twenty percent beginning in 2016 as part of 777X program-wide

budget cuts.39 To accommodate the budget reduction, Demars and De Genner

decided to reduce staff on the program.40 They elected to offload five employees from

the ELMS team, including Neely and two of the other three employees temporarily

assigned from the HDC.41 Demars explained temporary assignments like Neely’s

were more expensive for ELMS than other positions because of significant expenses

associated with travel.42

Demars notified Richardson that Neely was expected to be offloaded from the

ELMS program by the end of March 2016.43 Richardson attempted to find an

D. & O. at 24; Tr. at 1270-73; compare RX 38 with CX 216.

CX 216.

Id.

Tr. at 1283-86, 1298-1301.

Id. at 1778-79; D. & O. at 23, 25.

D. & O. at 23, 25; Tr. at 1780-81.

D. & O. at 23, 25; RX 42; Tr. at 1781-84.

D. & O. at 23, 25.

Id. at 25; Tr. at 1788.

alternative project for Neely, but there was not enough work available at the HDC

in the PE-5 classification.44 This triggered a reduction in force (RIF).45

Boeing employs a formal RIF process.46 Managers for each employee in the

impacted classification rate employees based on pre-defined, weighted criteria.47

The employees’ most recent year-end performance evaluation scores for BG&Os and

Performance Values each account for twenty percent of their overall RIF

assessments.48 For the remaining sixty percent, managers rate employees in several

“core competencies.”49 Once employees are rated, the managers meet to ensure their

ratings were applied consistently.50 When the ratings for each employee are

finalized, the individual with the lowest cumulative weighted score is selected for

layoff.51

The RIF impacting Neely occurred in January 2016 and included thirty-three

employees in the PE-5 classification.52 Neely’s 2015 annual performance evaluation,

in which he had received poor scores associated with his interpersonal skills,

comprised forty percent of Neely’s overall RIF score and contributed to him raking

at the bottom of his classification.53 Accordingly, Boeing selected Neely for layoff.54

D. & O. at 25; CX 222; Tr. at 1313-14.

D. & O. at 25.

Id. at 26; RX 3.

D. & O. at 26.

Id.

Id. For the PE-5 classification, the core competencies, and associated weights, were:

Communication (10%), Decision Making (10%), Engineer Knowledge and Comprehension

(10%), Planning and Organization (10%), Project Leadership (10%), Customer Focus (5%),

and Influencing Others (5%). RX 43.

D. & O. at 26.

Id.

Id. at 27.

Id.; RX 43. Richardson’s core competency ratings for Neely’s RIF assessment were

consistent with the scores Neely received for his 2015 performance evaluation. Richardson

rated Neely as a “3” or a “4” across all categories, except for “Influencing Others,” in which

he rated Neely as a “2.” RX 43.

D. & O. at 27. Two PE-5s were also laid off via RIFs conducted in October 2015. Id.

at 26 n.79. Although Neely ranked near the bottom of the classification in those earlier RIF

cycles, he was not the lowest ranked employee and was therefore not selected for layoff. See

CX 178, 179. Neely’s 2015 performance evaluation had not been completed as of October

2015, so his 2014 performance evaluation, in which he had received overall higher scores,

On January 21, 2016, Richardson gave Neely a formal Reduction in Force

Notice, which notified Neely that he would be laid off in sixty days unless he was

able to find alternative work within Boeing.55 During the ensuing sixty-day period,

Neely applied to numerous positions, but was not selected.56 As a result, Boeing

terminated Neely’s employment on March 25, 2016.57

5. Procedural History and ALJ Decision

Neely filed a complaint with the United States Department of Labor’s

Occupational Safety and Health Administration on March 10, 2016, alleging Boeing

retaliated against him in violation of AIR 21 and the Sarbanes-Oxley Act (SOX).58

Neely requested a formal hearing before the Office of Administrative Law Judges

(OALJ). The ALJ assigned to the case held a formal hearing from May 2 to May 10,

2019.

The ALJ issued the D. & O. on September 24, 2020. Although the ALJ

expressed reservations regarding whether some or all of Neely’s complaints

regarding the ELMS program were protected by AIR 21,59 the ALJ ultimately

concluded that even if Neely had engaged in protected activity, he had not

was used for his RIF assessment in these earlier RIF cycles. D. & O. at 26 n.79; CX 8. His

overall core competency ratings actually improved slightly between the October 2015 and

January 2016 RIF cycles, but were offset by the poorer scores Neely received in his 2015

performance evaluation. D. & O. at 27; compare CX 178, 179 with RX 43.

D. & O. at 27. Richardson also delivered Neely an “At Risk Notice” on the same day.

Id. An At Risk Notice informs the employee of the RIF, identifies the criteria and ratings

used in the RIF assessment, and gives notice they are likely to receive a formal notice of

layoff. RX 44; CX 225 at 2. Neely asserts he should have received the At Risk Notice in

advance of the Reduction in Force Notice, to allow him additional time to find alternative

work. Substantial evidence supports the ALJ’s decision that issuing the two documents at

the same time is consistent with Boeing policy and practice. D. & O. at 25 n.76, 27 n.83; CX

225 at 12; Tr. at 1602-03.

D. & O. at 27.

Id.

18 U.S.C. § 1514A. SOX allows complainants to forego administrative proceedings

and proceed in federal court under certain circumstances. Id. § 1514A(b)(1)(B). Neely opted

to pursue his SOX claims in federal court. Accordingly, his SOX claims were not before the

ALJ, and are not before the ARB on appeal.

The ALJ expressed similar reservations regarding whether Boeing and Neely were

covered by AIR 21, but ultimately accepted the parties’ stipulation that they were covered.

Neither party challenges that ruling on appeal, so we will not address it.

demonstrated that his protected activity contributed to his layoff. The ALJ also

concluded that even if Neely had met his burden of establishing that his protected

activity contributed to his layoff, Boeing had demonstrated by clear and convincing

evidence that it would have laid Neely off in the absence of his protected activity.

Neely appealed the D. & O. to the ARB on September 30, 2020.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the ARB to hear appeals

from ALJ decisions and to issue agency decisions in cases arising under AIR 21.60 In

AIR 21 cases, the Board reviews questions of law presented on appeal de novo, but

is bound by the ALJ’s factual findings if they are supported by substantial

evidence.61 Substantial evidence “means—and means only—such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.”62 “[T]he

threshold for such evidentiary sufficiency is not high.”63 The substantial evidence

standard “limits the reviewing court from ‘deciding the facts anew, making

credibility determinations, or re-weighing the evidence.’”64 If substantial evidence

supports the ALJ’s conclusion, the ALJ’s decision must be upheld even if it is

“possible that a reasonable mind could have come to a different finding.”65

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. 13186 (Mar. 6, 2020); 29 C.F.R. § 1979.110(a).

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).

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotations and citation omitted).

Id.

Stone & Webster Const., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127, 1133 (11th Cir.

2012) (quoting Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)).

Clem v. Comput. Sci. Corp., ARB 2020-0025, ALJ Nos. 2015-ERA-00003, -00004, slip

op. at 17 (ARB Mar. 10, 2021).

DISCUSSION

1. The ALJ’s Decision that Neely’s Alleged Protected Activity Did Not

Contribute to His Layoff is Supported by Substantial Evidence66

AIR 21 states the holder of a type certificate “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 violation or alleged

violation of any order, regulation, or standard of the Federal Aviation

Administration or any other provision of Federal law relating to aviation safety.”67

To prevail on a retaliation claim under this provision, the complainant must prove

by a preponderance of the evidence that: (1) he engaged in activity protected by the

statute; (2) he suffered adverse employment action; and (3) his protected activity

was a contributing factor in the adverse action.68 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.”69 If the employee meets this burden of proof, the

respondent may nevertheless avoid liability if it proves by clear and convincing

evidence that it would have taken the same adverse action even in the absence of

the complainant’s protected activity.70

The ALJ concluded Neely failed to prove by a preponderance of the evidence

that his alleged protected activity contributed to his layoff. The ALJ determined

there was abundant and credible evidence that Boeing had a legitimate need for the

RIF, that Richardson rated Neely relatively poorly in his 2015 review exclusively

because of his poor behavior, and that the poor rating resulted in Neely’s selection

for layoff in the RIF. The ALJ also concluded that Neely had not presented any

Boeing argued Neely’s concerns about regulatory and safety issues were

unreasonable and did not constitute protected activity under AIR 21. Respondent’s PostHearing Brief at 33-38. It is unclear to the Board which, if any, of Neely’s complaints the

ALJ actually found to be protected by AIR 21. For purposes of this decision, we need not,

and do not, determine which, if any, of Neely’s complaints were protected. We have

assumed Neely engaged in activity protected by the Act, as alleged.

49 U.S.C. § 42121(a)(1).

Petitt v. Delta Airlines, Inc., ARB No. 2021-0014, ALJ No. 2018-AIR-00041, slip op.

at 10 (ARB Mar. 29, 2022) (citation omitted).

Id. at 18 (quoting Rookaird v. BNSF Ry. Co., 908 F.3d 451, 461-62 (9th Cir. 2018)).

Id. at 10 (citation omitted).

credible evidence to rebut Boeing’s evidence and explanations for its actions or to

otherwise establish that his alleged protected activity played any role in these

decisions.

On appeal, Neely presents two primary arguments regarding why he believes

the ALJ erred by finding that he had not demonstrated that his protected activity

contributed to his layoff. First, he contends the explanations Boeing offered for its

decisions were false and were pretext designed to mask Boeing’s unlawful

retaliatory motives. Second, Neely contends the timing of, and sequence of events

between, his protected activity and his layoff shows a pattern of antagonism and a

retaliatory plan to terminate his employment. Neely’s arguments do not convince us

to overrule the ALJ’s decision, which we find to be logical, well-reasoned, and

supported by substantial evidence in the record.

A. Boeing Offered Legitimate and Credible Explanations for Its Actions,

Which Neely has not Shown Were Pretextual

Boeing argues it terminated Neely’s employment because: (1) business

conditions—specifically, budgetary constraints on the 777X program and a lack of

work at the HDC—necessitated Neely’s removal from the ELMS program and the

initiation of a RIF; (2) it selected Neely for layoff pursuant to its established RIF

process based on Neely’s legitimate and well-deserved performance ratings; and (3)

Neely was laid off in accordance with Boeing’s policies when he could not find

alternative work. Substantial evidence supports the ALJ’s conclusions that Boeing’s

explanations were legitimate and were not motivated or affected by Neely’s alleged

protected activity.

i. Boeing’s Need for the RIF

Boeing offered unrebutted evidence the 777X program, including the ELMS

subsystem, faced significant budgetary constraints at the beginning of 2016.71

Although Neely refers to the budgetary constraints as convenient, he has not offered

evidence they were, in fact, contrived. Neely suggests the 777X program did not

actually face budgetary constraints because Boeing continued to hire or promote

new PE-5s in his classification in late 2015 and early 2016.72 However, there is no

evidence those new PE-5s were hired on the 777X program, or that the 777X and

RX 70 at 3; Tr. at 1779.

See CX 224.

ELMS teams were otherwise expanding in 2016. Neely also cites an email from late

2015 in which Demars supposedly extended his assignment on the program through

2016.73 He contends this extension proves his position was not intended to be part of

the budgetary reductions. However, witnesses testified the email to which Neely

cites merely gave ELMS the flexibility to retain Neely on the program in 2016, but

only to the extent the budget could accommodate his assignment. Neely could not

actually remain on the ELMS team without available and appropriated funds.74

The record also supports the ALJ’s determination that when faced with these

budgetary constraints, Boeing made the legitimate, non-retaliatory business

decision to offload the salaries of several employees, like Neely, who were on

expensive, temporary travel assignments to the ELMS team. Neely was just one of

at least five employees whose assignments to ELMS ended as part of the budget

cuts, including all but one of the HDC employees, like Neely, who were temporarily

assigned to the program.75 Boeing’s explanation is supported by substantial

evidence, and we will not second-guess these types of even-handed, reasonable

budgetary decisions on appeal.76

Finally, Richardson explained that when Neely’s assignment with ELMS

ended, there were no other assignments to which he could transfer Neely, thus

triggering a RIF.77 Neely argues there were positions available for him, again citing

the evidence that Boeing hired or promoted five new PE-5s in his classification in

the last several months of 2015. However, Neely failed to establish any of the

circumstances surrounding the promotion or hiring of these PE-5s, show that

Richardson or other alleged retaliators had any knowledge of, or involvement in,

these other hiring or promotion actions, or show that Richardson or any other

alleged retaliator could have effectuated Neely’s assignment to these other positions

CX 191.

Tr. at 1571-73, 1785-88.

Id. at 1781-84; RX 42. ELMS retained one software engineer from HDC. Tr. at 1785.

See Wright v. R.R. Comm’n of Tex., ARB No. 2019-0011, ALJ No. 2015-SDW-00001,

slip op. at 4 n.9 (ARB May 22, 2019) (“We note that it is the role of neither the ALJ nor the

Board to act as a super-personnel ‘department that reexamines an entity’s business

decisions.’”) (quoting Jones v. U.S. Enrichment Corp., ARB Nos. 2002-0093, 2003-0010, ALJ

No. 2001-ERA-00021, slip op. at 17 (ARB Apr. 30, 2004)).

Tr. at 1313-15.

when Neely’s assignment to ELMS ended.78 Moreover, contrary to Neely’s assertion

that Richardson was motivated to effectuate Neely’s discharge because of his

protected activity, Richardson took steps to locate other work for Neely, but was

unsuccessful.79 Accordingly, we have no basis to find the ALJ erred by concluding

Boeing lacked alternative assignments for Neely upon his return to the HDC, or

that the initiation of the RIF was otherwise illegitimate or retaliatory.

ii. Neely’s Selection in the RIF

At the end of the RIF process, Neely ranked at the bottom of the pool of PE-5s

in his classification. Neely’s low ranking resulted, primarily, from Neely’s relatively

poor 2015 performance evaluation, which comprised forty percent of his overall RIF

rating. Substantial evidence supports the ALJ’s conclusion that Neely’s evaluation

ratings and low ranking in the RIF assessment were driven by Neely’s poor

interpersonal skills and negative interactions with others in 2015, and not his

protected activity.

There is abundant evidence in the record, highlighted in the Background

section above, validating the ratings Neely received related to his poor

interpersonal skills and his inability to effectively communicate with and interact

with others on the ELMS program. Substantial evidence supports the conclusion

that Neely was unprofessional and was unwilling to change his behavior despite

several instances of feedback and coaching from his supervisors. Considering this

evidence, the ALJ reasonably credited Richardson’s, Demars’, and De Genner’s

explanations for Neely’s poor ratings and RIF ranking.80

Despite this evidence, Neely contends his adverse ratings were contrived and

artificially deflated to justify his discharge. For example, he argues his poor ratings

Richardson testified he was not involved in the hiring or promotion of the new PE5s. Id. at 1617-18.

Id. at 1618-19; CX 222.

Neely emphasizes the subjective nature of the ratings associated with his

interpersonal skills. Although Neely is correct that subjective criteria should be scrutinized

because of the ease with which they might be used to mask discrimination or retaliation,

the use of subjective criteria is not per se proof of retaliation. See Beck v. Buckeye Pipeline

Servs. Co., 501 F. App’x 447, 450 (6th Cir. 2012) (unpublished); Franklin v. Boeing Co., 232

F. App’x 408, 411 (5th Cir. 2007) (unpublished). Although Neely’s ratings may be classified

as subjective, we find no basis to conclude on this record that the ALJ erred by declining to

find they were illegitimate or motivated by anything other than Neely’s own misbehavior.

are inconsistent with the contemporaneous, positive feedback he received regarding

his work on the ELMS program in 2015, including from De Genner and Demars.

However, the positive feedback to which Neely refers primarily concerned Neely’s

technical and project management contributions, not his interpersonal skills.81

Boeing agrees Neely was technically proficient, and Neely’s 2015 performance

evaluation and his core competencies ratings from the RIF assessment confirm

Boeing considered Neely to be a technically adept engineer.82 However, the fact that

Neely may have performed well in one aspect of his job does not mean he performed

well in all aspects of his job. Neely has not offered evidence his managers

commended him or provided positive feedback regarding his interpersonal skills in

2015; to the contrary, Neely’s supervisors testified they repeatedly sought to

address Neely’s deficiencies in that aspect of his employment.

Similarly, Neely argues the ALJ should have determined his poor ratings in

2015 were pretextual given how strongly they diverged from the allegedly

unwaveringly positive ratings Neely previously received during his tenure with

Boeing. We do not agree with Neely that his poor ratings in 2015 regarding his

communication and interpersonal skills were an unprecedent aberration. The record

reflects that at least once before, in 2011, Neely received similar poor ratings

regarding his communication and ability to work with others.83 Furthermore,

Neely’s 2015 performance evaluation and RIF ratings were issued by a different set

of managers than those who performed his prior evaluations.84 Richardson, Neely’s

supervisor and rating official in 2015, first began supervising Neely in January

2015.85 Likewise, De Genner and Demars, who provided critical feedback regarding

Neely’s 2015 performance evaluation and provided his day-to-day supervision on

the ELMS program, did not begin working with Neely until 2014 and June 2015,

respectively.86 We find no error in the ALJ’s decision to decline to infer pretext or

E.g., CX 7, 118; see also Tr. at 1775-76.

D. & O. at 23 n.65; Tr. at 1709, 1759. For example, Richardson rated Neely as a “4

Exceeds Expectations” for the “Technical Skills and Knowledge” performance measure. CX

216. Similarly, Richardson rated Neely as a “4” for the core competencies of “Engineering

Knowledge & Comprehension,” “Planning and Organization,” and “Project Leadership”

during the January RIF cycle. RX 43.

RX 39. Neely’s 2011 review reflects scores of “2 Met Some Expectations” for “People

Working Together” and “Leadership.” Id.

D. & O. at 12; compare RX 39 and CX 8 with CX 216.

D. & O. at 12.

Id. at 12 nn.33-34.

retaliation simply because Neely’s scores dropped from one year to the next given

this change in supervision, especially in light of the ample evidence validating the

managers’ criticism of Neely’s interpersonal skills in 2015.87

Finally, Neely argues Richardson and Boeing ignored two key facts that

should have helped him avoid selection in the RIF, despite ranking at the bottom of

his classification. First, Neely asserts Richardson ignored his security clearance,

which should have given him special consideration when finalizing the RIF

rankings. Although Neely possessed a security clearance, Richardson explained that

only a rare clearance, like top secret, would have possibly exempted an employee

ranking at the bottom of his classification from layoff.88 Neely did not hold such a

clearance. Neely also asserts Richardson improperly removed a notation

accompanying Neely’s assessment in the earlier October 2015 RIF cycle indicating

Neely was in a mission-critical position.89 However, Richardson explained the

notation accompanying Neely’s October 2015 RIF assessment derived from Neely’s

assignment to ELMS. With the end of Neely’s ELMS assignment, the notation was

not applicable for the January 2016 RIF assessment.90

iii. Neely’s Inability to Find Alternative Work and Layoff

Pursuant to Boeing’s established RIF policy, Neely had sixty days to find an

alternative position before his layoff became effective.91 During that sixty-day

period, Neely applied for more than sixty internal jobs, but was not selected.92 Neely

contends his non-selection is further evidence of retaliation and pretext, because he

was well-qualified for these other positions. However, Neely has not pointed to any

evidence in the record showing who was selected for the various positions to which

he applied or how the decisions were made. Therefore, we have no basis to conclude

Neely was equally or more qualified than the selectees, or any other basis to infer

Lindeman v. Saint Luke’s Hosp. of Kansas City, 899 F.3d 603, 607 (8th Cir. 2018);

Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1175 (10th Cir. 2006); Rojas v.

Florida, 285 F.3d 1339, 1343 (11th Cir. 2002).

Tr. at 1372-73.

Compare CX 178, 179 with RX 43.

Tr. at 1339, 1351-52.

See RX 44; CX 225 at 12, 14.

Tr. at 952.

retaliation or pretext in the selection decisions.93 In addition, there is no evidence

Richardson, Demars, De Genner, or any other person alleged to have played a role

in the retaliation in this case had any hand in or influence over Neely’s unsuccessful

search.94 To the contrary, Richardson encouraged Neely’s job search efforts. For

example, Richardson coordinated with the RIF skills manager regarding Neely’s job

search efforts, and approved Neely’s request to spend company time on his search.95

For these reasons, we conclude substantial evidence supports the ALJ’s

conclusion that Boeing established a credible, legitimate, and non-retaliatory basis

for laying Neely off in a RIF, and affirm the ALJ’s judgment that Neely’s attacks on

Boeing’s explanations and his arguments of pretext were not supported by the

record.96

See Farver v. McCarthy, 931 F.3d 808, 812 (8th Cir. 2019); Beal v. Convergys Corp.,

489 F. App’x 421, 424 (11th Cir. 2012) (unpublished). Neely confirmed he did not believe the

hiring managers for these various other positions even knew who he was, let alone were

part of the conspiracy to retaliate against him. Tr. at 968.

See id. at 1591-92. Neely refers to an email in which Richardson suggested to the

RIF skills manager that anyone interested in considering Neely for employment should not

speak to Neely directly before Neely received notice of his layoff. CX 222. There is no

evidence Richardson gave this same type of instruction after Neely was notified of his

selection for layoff. See Tr. at 1597-99.

Id. at 1363-67; RX 45, 47, 48, 69 at 6; CX 230.

Citing the Board’s decision in Palmer v. Canadian Nat’l Ry./Ill. C. R.R. Co., ARB

No. 2016-0035, ALJ No. 2014-FRS-00154 (ARB Sept. 30, 2016) (reissued with full dissent

Jan. 4, 2017), Neely contends the ALJ improperly weighed Boeing’s nonretaliatory reasons

for its conduct against evidence otherwise proving his protected activity played at least

some role in his layoff. To be clear, the ALJ decided Neely presented no credible evidence

that Boeing’s conduct was anything other than above-board, or that his protected activity

played any role in its decision to lay him off. D. & O. at 45-46. This decision, which we

affirm, is consistent with Palmer. See Palmer, ARB No. 2016-0034, slip op. at 55. (“But the

evidence of the employer’s nonretaliatory reasons must be considered alongside the

employee’s evidence in making that [contributing factor] determination; for if the employer

claims that its nonretaliatory reasons were the only reasons for the adverse action (as is

usually the case), the ALJ must usually decide whether that is correct.” (emphasis

original)). We are of course mindful that an employer could surreptitiously create a false

record of performance on an employee in anticipation of using that false record to justify a

RIF sometime in the future, to punish protected conduct. However, we see no evidence that

this occurred here.

B. Neely Has Not Established Temporal Proximity or A Pattern of Adverse

Conduct that Tends to Establish Retaliation

Neely also contends the timing of his layoff, particularly in relation to his

formal internal complaints in November 2015, demonstrates his protected activity

contributed to his discharge from employment. Although Neely engaged in some

protected activity within a few months of his selection for the layoff, Neely avers he

began engaging in protected activity in December 2014, fifteen months before he

was laid off in March 2016. This lengthy temporal gap does not support the

inference that Neely’s protected activity contributed to his layoff in the particular

circumstances of this case.97 We find no error in the ALJ’s conclusion that the

timing of Neely’s layoff after his alleged protected activity reflects coincidence,

rather than retaliation.98

Neely attempts to connect his protected activity with his layoff by arguing

Boeing took a series of unfavorable personal actions against him before his ultimate

discharge. He contends these intermediary personnel actions, which began shortly

after he began engaging in protected activity in December 2014, were designed to,

and did, falsely justify and accelerate his discharge.99 The ALJ determined these

See Acosta v. Union Pac. R.R. Co., ARB No. 2018-0020, ALJ No. 2016-FRS-00082,

slip op. at 9 (ARB Jan. 22, 2020) (noting insufficiency of temporal proximity as a basis for

proving causation where an intervening event occurs); Wevers v. Montana Rail Link, Inc.,

ARB No. 2016-0088, ALJ No. 2014-FRS-00062, slip op. at 11-12 (ARB June 17, 2019)

(affirming ALJ’s assessment that four month gap between temporal proximity and adverse

action “lacked a strong temporal connection,” especially where intervening events

“diminished any causal inference from temporal proximity.”); Bechtel v. Competitive Techs.,

Inc., ARB No. 2009-0052, ALJ No. 2005-SOX-00033, slip op. at 18 (ARB Sept. 30, 2011)

(finding temporal gap of several months, during which intervening difficulties occurred, did

not allow clear inference of pretext).

See supra Discussion Section I.A.; D. & O. at 45; see also Stites v. Alan Ritchey, Inc.,

458 F. App’x 110, 112 (3d Cir. 2012) (unpublished); Acosta, ARB No. 2018-0020, slip op. at 8

(“The mere circumstance that protected activity precedes an adverse personnel action is not

proof of a causal connection between the two.”) (citation omitted).

We affirm the ALJ’s determination that these earlier, unfavorable personnel actions

are not separately actionable as adverse action under AIR 21 because Neely did not file a

complaint with OSHA within ninety days of the date on which they occurred. 49 U.S.C. §

42121(b)(1); 29 C.F.R. § 1979.103(d); Hoffman v. NetJets Aviation, Inc., ARB No. 2006-0141,

ALJ No. 2005-AIR-00026, slip op. at 4 (ARB July 22, 2008). These actions are time barred

even if they are “related” to the later, timely adverse actions, as Neely argues. Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). Although time barred, we have

considered these earlier personnel actions as potentially relevant background evidence

associated with Neely’s timely adverse actions. See id.

various personnel actions were legitimate and not driven by retaliation. We find no

error in the ALJ’s judgment and conclude that his findings are supported by

substantial evidence.

First, Neely asserts ELMS reassigned him to a “spurious” position as

Supplier Program Manager (SPM) in April 2015, after he complained about

requirements releases in December 2014 and March 2015. Neely contends he was

set up to fail as the SPM because the position lacked clear authorities or

responsibilities. However, contrary to the position Neely takes in this appeal, he

admitted at the hearing that he did not believe his reassignment to the SPM

position was retaliation in response to his AIR 21 claim.100

Even setting this admission aside, Richardson and others explained ELMS

needed the SPM position, and that the position was a good opportunity for Neely

and fit his skills.101 De Genner also testified Neely advocated for the position, and

Neely conceded he thought the position had potential and that it was not uncommon

for his duties to change as programs and projects evolved.102 Although Neely argues

the position proved to be ill-defined, Richardson explained Neely could have worked

with others to define the contours of the position to his satisfaction. However, Neely

was unwilling to address the challenges he perceived with the position.103

Next, Neely asserts Richardson altered his performance goals at his June

2015 mid-year review. He argues this was also designed to set him up to fail, and to

make his goals unachievable. Although Neely is correct that Richardson added one

new BG&O measure to his goals mid-year to reflect Neely’s reassignment to the

SPM position, Richardson explained such changes were not unusual and that he

alerted all his employees in advance that he would be considering necessary

changes for the mid-year reviews.104 Furthermore, when Neely complained about

the new goal, Richardson agreed to remove it and revert Neely’s performance goals

Tr. at 1012-14. Neely testified he believed this reassignment was age discrimination,

and not retaliation under AIR 21. Id. His age discrimination and retaliation claims were

not before the ALJ and are not before the Board.

100

101

Tr. at 1266, 1404-05, 1422-23, 1427, 1707-08, 1733-35.

102

Id. at 595-96, 1083, 1085, 1708, 1733-34.

103

See id. at 1536-37.

104

Id. at 1254-55, 1257-58, 1261-64, 1530-31.

to their original form.105 Thus, we agree with the ALJ that there is no evidence the

temporary change had any impact on Neely’s ratings or was retaliatory.

Neely also asserts Richardson improperly issued him a written warning,

called a Corrective Action Memorandum (CAM) in September 2015, falsely accusing

him of making improper charges on his company credit card. The ALJ determined

the CAM was legitimately issued because of Neely’s violation of company policy. We

agree. When Richardson was appointed as Neely’s supervisor, Richardson gave

Neely and his other direct reports guidance on expensing and allowable charges.106

Neely violated Richardson’s guidance once in May 2015. Richardson warned Neely

about his violation, and Neely committed to complying with Richardson’s guidance

in the future.107 Nevertheless, Neely violated the expensing rules again in August

2015, prompting the CAM.108 Richardson explained Neely was the only one of his

employees to violate his directives on expensing on more than one occasion.109

Although Neely asserts his expensing behavior did not deviate from his past,

accepted practice under different management, substantial evidence supports the

conclusion that Neely’s practices violated Richardson’s pre-established expectations.

Finally, Neely contends Boeing hired a human resources representative,

Ellory Cartagena, in August 2015 for the specific purpose of helping to “scheme” his

discharge. The record does not support Neely’s position. Neely cites to the fact that

Richardson began forwarding several emails he exchanged with Neely to Cartagena

shortly after she was hired. However, by that time, Neely had already accused

Richardson of age discrimination and retaliation, and Richardson had reasonable

concerns with the manner in which Neely was interacting with others.110 Under

these circumstances, we cannot infer retaliatory motives merely from the fact that

Richardson engaged a human resources representative concerning his dealings with

Neely.111 Neely also contends Cartagena admitted in her deposition that she was

hired for the specific purpose of helping to effectuate his discharge. Neely

misconstrues her testimony. Although Cartagena confirmed she served as Neely’s

105

Id. at 1264-65.

106

Id. at 1195-99; RX 2, 4.

107

RX 5; Tr. at 1200-03.

108

RX 6-8; Tr. at 1203-04, 1215-22.

109

Tr. at 1203.

110

Id. at 1215, 1233-37, 1247-48; CX 117.

111

Couch v. Am. Bottling Co., 955 F.3d 1106, 1109 (8th Cir. 2020).

human resources point of contact and participated in his discharge, she did not

testify that she was hired for that specific purpose.112

Accordingly, we affirm the ALJ’s decision that these alleged unfavorable

personnel actions do not evince a retaliatory motive or scheme on the part of

Boeing, or otherwise support the conclusion that Neely’s protected activity

contributed to his layoff.

C. Other Evidence Also Supports the ALJ’s Conclusion that Neely’s Alleged

Protected Activity Did Not Contribute to his Layoff

Additional evidence and circumstances cited by the ALJ also bolster the

conclusion that Neely’s protected activity did not contribute to his layoff. The ALJ

noted, for example, that there was no evidence Boeing attempted to conceal the

issues about which Neely complained.113 While Neely asserts on appeal that Boeing

attempted to conceal its alleged regulatory and safety violations, he failed to cite

any record evidence supporting this proposition on appeal.

112

The testimony to which Neely cites is:

Q. Were you the complainant’s assigned HR focal from January

2015 to his termination March 25, 2016? If no, please provide

the dates you were and who was previously. . . .

A. No. I became the assigned HRG in August of 2015 to the

termination, and the previous HRG was Vivian Harris.

Q. Why were you assigned as complainant’s HR focal? . . .

A. Because I applied for the job and got the job to represent the

Huntsville Design Center.

CX 279 at 8.

Q. Were you assigned as the complainant HR focal to terminate

complainant’s employment? . . .

A. Yes.

Q. Were you instructed by any Boeing employee to terminate

complainant’s employment?

A. No.

Id. at 20.

See Yadav v. L-3 Commc’ns Corp., 462 F. App’x 533, 537 (6th Cir. 2012)

(unpublished); Miller v. Tenn. Valley Auth., ARB No. 1998-0006, ALJ No. 1997-ERA-00002,

slip op. at 5 (ARB Sept. 29, 1998).

113

Similarly, the ALJ observed that Boeing’s management was well aware of the

ELMS challenges about which Neely complained. Indeed, Neely repeatedly asserted

below and on appeal that several of his colleagues within Boeing and employees of

GE raised concerns about regulatory violations associated with the ELMS program

like he did.114 Yet, there is no evidence Boeing retaliated against other alleged

whistleblowing employees. Neely has not explained why, under these

circumstances, he would have been the only one singled out for raising concerns

about the supposed regulatory violations, or why the alleged retaliatory motives, if

they in fact existed, would not have extended to the other employees raising the

same concerns.

For these reasons, and the others discussed above, we find that substantial

evidence supports the ALJ’s conclusion that Neely failed to demonstrate by a

preponderance of the evidence that his alleged protected activity contributed to the

adverse action taken against him.

2. The ALJ’s Decision that Boeing Established Its Same-Action Defense Is

Also Supported by Substantial Evidence.

As set forth above, even if Neely established his protected activity

contributed to the adverse action taken against him, Boeing would nevertheless

escape liability if it proved by clear and convincing evidence that it would have

taken the same action against Neely even if he had not engaged in protected

activity. The ALJ determined Boeing established this same-action defense.115 We

affirm this decision for many of the same reasons set forth above. The record amply

supports Boeing’s position that the RIF was necessitated by prevailing business

conditions—i.e., budgetary restrictions and lack of work—which were independent

of, and not influenced by, Neely’s alleged protected activity. Likewise, the record is

replete with evidence Neely engaged in inappropriate workplace behavior and

decorum, which prompted his relatively poor evaluation ratings and selection for

layoff pursuant to Boeing’s established RIF procedure. A whistleblower is not

insulated or immunized from adverse action for his misbehavior, wrongdoing, or

unsatisfactory performance.116 Based on the record in this case, the ALJ reasonably

114

Tr. at 532-34, 681-83, 690-91, 1087-88; Comp. Br. at 53-54.

115

D. & O. at 47 n.108.

Couch, 955 F.3d at 1109; Formella v. U.S. Dep’t of Labor, 628 F.3d 381, 393 (7th Cir.

2009); Gunderson v. BNSF Ry. Co., 850 F.3d 962, 969-70 (8th Cir. 2017); Clement v.

116

concluded Neely’s protected activity played no role in his adverse action and,

likewise, that Boeing would have taken the same adverse action even in the absence

of his protected activity.

3. We Deny Neely’s Remaining Arguments and Post-Appeal Motions

A. Credibility and Neely’s Candor to the Tribunal

Neely challenges various credibility determinations the ALJ made regarding

Neely and other witnesses. The Board “gives considerable deference to an ALJ’s

credibility determinations and defers to such determinations unless they are

inherently incredible or patently unreasonable.”117 The ALJ’s credibility

determinations are well-reasoned and supported by substantial evidence, and we

find no basis to disturb them on appeal.

First, the ALJ found Neely’s credibility “wanting,” because of his lack of

candor with the tribunal.118 At the hearing, Neely represented that he had not

taken any documents with him upon his departure from Boeing, that he had not

forwarded himself any documents for this litigation or any other non-personal

emails, and that if he had sent himself something it was by mistake and he had

deleted it.119 The ALJ determined these representations were “at best inaccurate, at

worse, a knowingly false statement.”120 This finding is supported by substantial

evidence. Boeing introduced two emails Neely forwarded from his Boeing account to

his personal account in November 2015 concerning the allegations of his case.121

Neely gave these emails misleading subject lines of “Travel” and “travel

Milwaukee Transp. Servs., Inc., ARB No. 2002-0025, ALJ No. 2001-STA-00006, slip op. at 8

(ARB Aug 29, 2003).

Hunter v. CSX Transp., Inc., ARB Nos. 2018-0044, -0045, ALJ No. 2017-FRS-00007,

slip op. at 3 (ARB Apr. 25, 2019) (citation omitted); accord Bobreski v. J. Givoo Consultants,

ARB No. 2013-0001, ALJ No. 2008-ERA-00003, slip op. at 25-26 (ARB Aug. 29, 2014)

(stating the Board will defer to an ALJ’s credibility determination when the “decision is

based on testimony that is coherent and plausible, not internally inconsistent and not

contradicted by external evidence.”) (quotations and citation omitted).

117

118

D. & O. at 33-34.

Tr. at 88-93, 1062-72. Neely made similar representations during his deposition. Id.

at 1069-70, 1167-73, 1177-78.

119

120

D. & O. at 34.

121

RX 88, 89.

arrangements,” which the ALJ reasonably determined indicated an effort to conceal

the emails from detection.122 The ALJ also specifically warned Neely at the outset of

the hearing about making false or misleading representations to the tribunal.123

Under these circumstances, the ALJ did not clearly err by making an adverse

finding as to Neely’s credibility.

Second, as relevant to this appeal, the ALJ found Richardson, DeFrancisco,

and Cartagena credible.124 Neely argues these witnesses were motivated to lie given

their involvement in Neely’s termination from Boeing. Although motivation may be

relevant in assessing credibility, we find no basis to second-guess the ALJ’s

credibility assessments or the veracity of these witnesses’ statements merely

because of their roles in the events of this case. Additionally, we reject Neely’s

assertions that at least part of Richardson’s testimony was demonstrably false.

Neely may disagree with Richardson’s testimony, but the ALJ reasonably

determined Richardson’s testimony was consistent with and corroborated by

contemporaneous documentation and other evidence in the record and was credible.

B. Discovery, Evidence, and Trial Control Issues

Neely raises several challenges to the way the ALJ controlled the

administrative proceedings, resolved discovery disputes, and conducted and

controlled the formal hearing. The ALJ is granted broad discretion to control

discovery and hearing procedures and will only be reversed upon a showing that he

abused his discretion.125 Neely has failed to establish the ALJ abused his discretion

in the manner he controlled these proceedings.

First, Neely argues the ALJ erred by refusing to enforce an order compelling

Boeing to comply with Neely’s discovery requests or to sanction Boeing for its

supposed violation of the order. Neely does not articulate how the ALJ abused his

122

Id.; Tr. at 1179-80.

123

Tr. at 14-15.

Neely also challenges the ALJ’s credibility determinations with respect to the

technical experts who testified on behalf of Boeing at the hearing. We need not address the

credibility of these other witnesses because their testimony has limited or no relevance to

the dispositive issues of causation and the same-action defense.

124

29 C.F.R. § 18.12(b); Huang v. Ultimo Software Sols., Inc., ARB Nos. 2009-0044,

-0056, ALJ No. 2008-LCA-00011, slip op. at 2-3 (ARB Nov. 10, 2011) (Order Denying

Reconsideration) (citing Harvey v. Home Depot U.S.A., Inc., ARB Nos. 2004-0114, -0115,

ALJ Nos. 2004-SOX-00020, -00036, slip op. at 8 (ARB June 2, 2006)).

125

discretion or how he was prejudiced by the alleged discovery infractions. Neely

identifies only one document he claims Boeing should have produced but did not.126

He does not articulate why he was entitled to the document or how this document,

or any other document not produced by Boeing, could have helped him achieve a

different outcome in this case.

Neely next argues the ALJ erred by restricting the length of the formal

hearing and Neely’s direct examination.127 Again, however, Neely has not

articulated how the ALJ’s decisions prejudiced his case or constituted an abuse of

discretion.128 As it was, the hearing lasted seven days, featured testimony from

twelve witnesses, and involved approximately 300 admitted exhibits. Neely’s own

direct examination spanned three days. Neely has not articulated what evidence he

was unable to present because of the ALJ’s constraints or explained why he needed

more time than that which was afforded to him by the ALJ.

Neely also contends the ALJ erred by refusing to admit into evidence certain

exhibits to which Boeing did not object before the hearing. The fact that some

exhibits may not have been opposed or objected to in Neely’s preliminary prehearing filing does not mean they should have been automatically admitted at the

hearing, or that the ALJ abused his discretion in refusing to admit them when

proffers could be made as to their relevance and other matters bearing on their

Comp. Br. at 12-13. Boeing produced the document Neely identified, but did so with

redactions. Neely argues the document should have been produced without redactions. Id.

126

We do not agree with Neely that the ALJ restricted Neely’s direct examination. The

ALJ required Neely to submit a list of questions he wished the ALJ to ask him during his

direct examination to aid the efficiency of the presentation of evidence. D. & O. at 5. At the

close of the first day of the hearing, Neely revealed the list of questions he had supplied was

not complete. Tr. at 214-15. The ALJ directed Neely to complete his list of questions. Id. at

220-21. Although the ALJ expressed concerns with the length of Neely’s examination and

his focus on matters the ALJ regarded as irrelevant or duplicative, the ALJ did not order

Neely to reduce the length of the examination. Id. at 219-21. Rather, Neely volunteered to

reduce the number of questions himself. Id. at 216 (“What I was going to offer, sir, is I can

go back and take the remaining of what we don’t complete and try to condense and be into

specific areas based on what I learned today . . . .”), 218 (“I’m suggesting, based on what I’ve

learned in this discussion, that I can go away and refine this. I will, hopefully, be even less

than the amount of questions here for the entire case.”).

127

See 29 C.F.R. § 18.12(b)(1) (granting the ALJ the power to “[r]egulate the course of

proceedings . . .”); Franchini v. Argonne Nat’l Lab., ARB No. 2018-0009, ALJ No. 2009-ERA00014, slip op. at 10 (ARB July 5, 2018).

128

admissibility.129 Neely also failed to articulate how any of the excluded exhibits may

have helped him achieve a different outcome in this case.

Finally, Neely contends the ALJ erred by refusing to admit testimony and

evidence concerning Boeing’s development of the 737 MAX aircraft. Neely argues

the issues he raised regarding the 777X were like those that ultimately led to at

least two fatal crashes of 737 MAX aircraft. Neely appears to contend the issues

plaguing the 737 MAX support the reasonableness or validity of his concerns

related to the 777X. The ALJ is vested with broad discretion to assess the

admissibility and relevance of proffered evidence.130 Neely has not articulated how

the ALJ abused his discretion in refusing to admit or consider evidence concerning

an aircraft Neely concedes he never worked on and about which he never

complained. He also does not contend he was aware of the 737 MAX issues when he

made his complaints about the 777X, or that they helped inform his opinion of the

problems he identified with respect to the 777X’s development. Furthermore, even if

the evidence concerning the 737 MAX may have helped Neely establish the

objective reasonableness of his concerns about the 777X, he has not explained how

such evidence could help him establish that his protected activity contributed to the

adverse action taken against him, and or that Boeing failed to establish its sameaction defense.

C. ALJ’s Reference to Neely’s District Court Case

In addition to his AIR 21 claim, Neely also simultaneously pursued claims

against Boeing in the United States District Court for the Western District of

Washington under SOX,131 the Dodd-Frank Act,132 the Age Discrimination in

Employment Act,133 and various state laws. The claims before the District Court

See 29 C.F.R. § 18.12(b)(5) (granting the ALJ the power to “[r]ule on offers of proof

and receive relevant evidence.”); Star Brite, ARB No. 1998-0113, ALJ No. 1997-DBA-00012,

slip op. at 15 (ARB June 30, 2000). The ALJ heard objections and ruled on the admissibility

of exhibits throughout the hearing. Additionally, at the end of the hearing, the ALJ

conducted a thorough final review of the parties’ proffered exhibits and objections. Tr. at

1912-2000.

129

130

See 29 C.F.R. § 18.12(b)(5); Star Brite, ARB No. 1998-0113, slip op. at 15.

131

18 U.S.C. § 1514A.

132

15 U.S.C. § 78u-6(h).

133

29 U.S.C. § 623.

related to the same alleged adverse actions about which Neely complained in this

case. The District Court ruled in Boeing’s favor and dismissed Neely’s claims.134

The ALJ referenced Neely’s federal action in setting forth the procedural

history in the D. & O. Neely contends it was improper for the ALJ to refer to the

federal action and that the ALJ let the District Court’s decisions influence his

decision. We disagree. Although the ALJ mentioned Neely’s federal action, he did so

only to provide a meaningful summary of the procedural background of this case.

The ALJ did not reference the District Court’s decisions in his analysis of the merits

of Neely’s AIR 21 claim or invoke those decisions with respect to any of his factual

findings or legal conclusions. We are satisfied the ALJ conducted his own, thorough

analysis of Neely’s AIR 21 claim.

D. Timeliness of Hearing and D. & O.

Neely argues the ALJ improperly delayed hearing and resolving this case in

violation of time frames identified by the Act. The statute states ALJ “hearings

shall be conducted expeditiously” and the Secretary “shall issue a final order” “[n]ot

later than 120 days after the date of conclusion of a hearing.”135 Neely requested a

hearing on February 9, 2018. The ALJ conducted the formal hearing from May 2 to

May 10, 2019, and issued the D. & O. on September 24, 2020. Although the ALJ

may not have met the time fames identified by the statute, we find no basis to

invalidate the ALJ’s decision. As the Board has expressed previously, “statutory

time limits for agency action are usually deemed directory,” not mandatory.136

Additionally, the Board has expressed that an ALJ’s issuance of a decision

beyond the statutory guides is not unreasonable where the ALJ “considered sharpy

conflicting testimony, and the result was a lengthy and well-reasoned decision.”137

In this case, the ALJ issued a detailed and well-reasoned 47-page decision involving

highly technical factual issues. Twelve witnesses, including experts, testified over

Neely v. The Boeing Co., No. C16-1791, 2018 WL 2216093 (W.D. Wash. May 15,

2018) (unpublished); Neely v. The Boeing Co., No. C16-1791, 2019 WL 2178648 (W.D. Wash.

May 20, 2019) (unpublished), aff’d 823 F. App’x 494 (9th Cir. 2020) (unpublished).

134

135

49 U.S.C. § 42121(b)(2)(A), (3)(A).

Huang v. Greatwide Dedicated Transp. II, LLC, ARB No. 2019-0053, ALJ No. 2016STA-00017, slip op. at 4 (ARB May 27, 2021) (quoting Trans Fleet Enters., Inc. v. Boone, 987

F.2d 1000, 1005 (4th Cir. 1992)).

136

137

Id.

the course of a seven-day hearing, and the parties introduced approximately 300

exhibits. The technical and novel legal issues also prompted the ALJ to elicit amicus

briefs from two federal agencies. The parties also mutually agreed to postpone the

ALJ’s hearing once, and the ALJ reasonably postponed the hearing a second time

due to medical issues of Boeing’s counsel.138 Neely himself also requested page and

time extensions for his post-hearing and appellate briefs based on the number and

complexity of the issues involved and the size of the record. In these circumstances,

we find the ALJ’s schedule was reasonable.

E. Allegations of Hearing Monitoring and Influence

The ALJ conducted the formal hearing at an FAA facility in Des Moines,

Washington. Neely asserts he was on a “live video feed camera pointing at him only

during the entire hearing.” Neely states the video feed transmitted to an adjacent

room where a “large group of people, to include internationals” were meeting. Neely

accuses the ALJ of “using FAA legal assistance and ex-parte participants advancing

Boeing’s litigations [sic],” and believes “this violates laws, to include international

trade agreements if internationals truly had visibility to the hearing.”139 There is no

evidence in the record supporting Neely’s claim that he was being monitored or that

any FAA representative or other person or entity had any access to or influence over

the proceedings in this case.

F. Motion for Default Judgment

Neely requests the Board enter default judgment against Boeing, arguing

Boeing did not file its opposition to Neely’s opening appellate brief by the deadline

set by the Board. We deny Neely’s request. Boeing’s opposition brief was due on or

before February 8, 2021. Boeing filed its brief on February 8, 2021, using the

Board’s electronic filing (eFile) system, as required. Although it appears from

materials Neely submitted that the docket entry for Boeing’s opposition brief was

not reflected in Neely’s eFile user account until February 23, 2021, Boeing

nevertheless filed its brief on time.140 Neely also concedes Boeing served him with a

Although Neely argues the second postponement was unreasonable because several

other attorneys had entered appearances on behalf of Boeing, the ALJ did not abuse his

discretion by postponing the hearing to accommodate the medical needs of one of Boeing’s

attorneys.

138

139

Comp. Br. at 13-14.

Furthermore, even if Boeing’s brief had been untimely, default judgment would not

be an appropriate remedy. Boeing was not required to file an opposition brief, and the

140

copy of its brief via email the day it was filed, and he also subsequently received a

hard copy of Boeing’s brief via U.S. mail.141 Accordingly, Neely also had timely and

proper notice of Boeing’s filing.142

G. Rule 60(b) Motion

After appellate briefing closed, Neely filed a motion styled as “60(b) Grounds

for Relief from a Final Judgment, Order, or Proceeding” (60(b) Motion). In the 60(b)

Motion, Neely invoked Federal Rule of Civil Procedure 60(b), which gives a court

the power to “relieve a party . . . from a final judgment, order, or proceeding” for

defined reasons, including “mistake, inadvertence, surprise, or excusable neglect;”

“newly discovered evidence that, with reasonable diligence, could not have been

discovered in time to move for a new trial;” “fraud . . ., misrepresentation, or

misconduct by an opposing party;” and “any other reason that justifies relief.” In the

Motion, Neely cites a newspaper article; an FAA-sponsored Boeing white paper

regarding safety issues and shortcomings in the development practices for

commercial aircraft; House and Senate Reports; and a notice of settlement between

the Department of Justice and Boeing regarding criminal charges. Except for the

white paper, these materials relate to two fatal crashes involving Boeing’s 737 MAX

aircraft. Neely asserts the problems leading to the 737 MAX crashes, as discussed

in the cited materials, are like those he raised with respect to the 777X and reflect

systemic deficits in Boeing’s design and development processes and procedures. He

argues the cited materials demonstrate the reasonableness and credibility of his

concerns regarding the 777X and justify immediate entry of judgment in his

favor.143

Board would still have to assess whether the ALJ’s decision is supported by substantial

evidence and is in accordance with the law even in the absence of an opposition brief.

141

See 29 C.F.R. § 26.4.

Neely contends he “cannot, and will not trust the [opposition] emailed to him is the

authorized final version.” Complainant’s Motion for Extension of Time Requesting ARB

Adjudicate Respondents [Sic] Non-Responsive Filing to ARB at 2. He also states “[u]nder

Covid 19 restrictions, [he] will not open the mailed copy due to health issues and is

conducting further investigations of [the] package.” Id. Boeing served Neely as required by

the Board’s regulations and we have no basis to conclude the opposition brief Boeing served

on Neely is different than the brief Boeing filed with the Board.

142

Even if we accept Neely’s assertion that the cited materials tend to validate his

concerns about the 777X, it is not clear why he believes this fact warrants judgment in his

favor, given the causation and same-action conclusions discussed above.

143

The Boeing-FAA white paper was issued in December 2016, several years

before the hearing and D. & O. in this case. There is no evidence Neely moved to

have the document admitted at trial or otherwise presented it to the ALJ for

consideration. Having not been properly presented to the ALJ, we consider his

arguments related to the document waived for purposes of this appeal.144

Furthermore, with respect to all the documents, Neely’s arguments should have

been presented in the first instance to the ALJ as the tribunal from whose judgment

Neely sought relief.145 Accordingly, we deny Neely’s 60(b) Motion.146

H. Integrity of the Record

Finally, Neely challenges the “integrity of the record” before the ARB. A

small portion of the administrative record was not supplied with the OALJ’s

original transmittal to the Board. Upon request, the OALJ supplemented and

completed the record. We have no basis to conclude that the record lacks integrity or

is incomplete.

See Woods v. Boeing-South Carolina, ARB No. 2011-0067, ALJ No. 2011-AIR-00009,

slip op. at 4 (ARB Dec. 10, 2012); Talukdar v. U.S. Dep’t of Veterans Affairs, ARB No. 20040100, ALJ No. 2002-LCA-00025, slip op. at 14 (ARB Jan. 31, 2007).

144

See Allen v. Bank of Am. Corp., 478 Fed. App’x 340, 341 (8th Cir. 2012)

(unpublished); Tracy v. Winfrey, 282 Fed. App’x 846, 847 (1st Cir. 2008) (unpublished);

Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2002); Fobian v. Storage Tech. Corp., 164

F.3d 887, 889-92 (4th Cir. 1999).

145

We also deny Neely’s motion to the extent it is construed as a request to reopen the

record. The Board will only grant such a request “if 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.” 29 C.F.R. § 18.90(b)(1); accord Kossen v. Asia

Pac. Airlines, ARB No. 2021-0012, ALJ No. 2019-AIR-00011, slip op. at 2-3 (ARB Oct. 28,

2021) (Order Denying Reconsideration and Motions to Reopen the Record). We conclude the

materials cited by Neely are not material to, nor would they alter the outcome of, the

dispositive issues in this appeal.

146

CONCLUSION

Accordingly, we AFFIRM the ALJ’s D. & O. and the complaint in this matter

is DENIED.147

SO ORDERED.148

Neely identified forty-one categories of error in his opening brief to the Board, many

of which contained multiple arguments. To the extent not specifically addressed herein, the

remainder of Neely’s arguments and contentions on appeal are denied.

147

In any appeal of this Decision and Order that may be filed, we note that the

appropriately named party is the Secretary, Department of Labor (not the Administrative

Review Board).

148

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.