Whistleblower Digest
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Whistleblower Digest
Aviation Investment and Reform Act for the 21st
Century (AIR21)
Last updated July 1, 2021
Table of Contents
I.
STATUTE AND REGULATIONS .................................................................................................... 4
•
Final AIR21 Regulations .................................................................................................................... 4
•
Consolidated Appropriations Act of 2021 ......................................................................................... 4
II.
JURISDICTION ............................................................................................................................. 5
•
Extraterritoriality .............................................................................................................................. 5
•
Authority of ALJ and ARB to invalidate employer policy ................................................................. 11
•
Employer’s interests and protection of pilots ................................................................................. 11
III.
BURDEN OF PROOF AND PRODUCTION ............................................................................ 13
•
Prima facie case .............................................................................................................................. 13
•
ALJ errors in analytical framework or credibility determinations ................................................... 14
•
Burdens of proof in AIR21 whistleblower complaint; general outline ............................................ 14
•
Applicable decisional law; burdens of proof and production .......................................................... 15
IV.
PROTECTED ACTIVITY ........................................................................................................... 16
•
In general ........................................................................................................................................ 16
V.
ADVERSE EMPLOYMENT ACTION .......................................................................................... 48
•
Hostile work environment ............................................................................................................... 49
•
Suspension without pay .................................................................................................................. 51
•
Discipline and constructive discharge ............................................................................................. 52
•
“Check ride” tests ............................................................................................................................ 54
•
Voluntary resignation or employer termination ............................................................................. 56
•
Materially adverse standard ........................................................................................................... 58
VI.
CAUSATION / CONTRIBUTING FACTOR ............................................................................ 69
•
Contributing factor generally; Palmer’s Two Step Burden of Proof ................................................ 75
•
Respondent’s knowledge of protected activity ............................................................................... 95
•
Pretext ............................................................................................................................................. 96
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VII.
AFFIRMATIVE DEFENSE / CLEAR AND CONVINCING EVIDENCE STANDARD ... 101
VIII.
TIMELINESS OF COMPLAINT ......................................................................................... 116
•
Ninety-day limitation .................................................................................................................... 116
•
Equitable tolling ............................................................................................................................ 117
•
Continuing violation doctrine inapplicable ................................................................................... 127
•
Blacklisting .................................................................................................................................... 128
•
Timeliness of hearing request ....................................................................................................... 128
•
Request for formal hearing ........................................................................................................... 130
IX.
PROCEDURE BEFORE OALJ ................................................................................................ 130
•
Amendment of complaint ............................................................................................................. 130
•
Findings on complaint still before OSHA ....................................................................................... 131
•
Recusal of ALJ ................................................................................................................................ 132
•
Summary decision ......................................................................................................................... 133
•
Self-represented litigants....................................................................................................... 133
•
Weighing evidence................................................................................................................ 136
•
Relevancy .............................................................................................................................. 137
•
Motion to Dismiss ......................................................................................................................... 138
•
Due process ................................................................................................................................... 139
•
Remands........................................................................................................................................ 140
X.
•
ALJ reassignment.................................................................................................................. 140
•
New hearing .......................................................................................................................... 141
•
Inadequacy of complaint ....................................................................................................... 141
•
Different service methods for ALJ and opposing party ........................................................ 142
ARB REVIEW ................................................................................................................................ 142
•
Scope of review ............................................................................................................................. 142
•
Ability of ALJ to correct mistakes in appealed decisions ............................................................... 144
•
Pro se complainants ...................................................................................................................... 145
•
Interlocutory Review ..................................................................................................................... 145
XI.
SUBPOENAS............................................................................................................................... 149
XII.
PROCEDURE BEFORE ARB .................................................................................................. 152
•
Timeliness of request for ARB review ............................................................................................ 152
•
Petition for review ......................................................................................................................... 156
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•
Briefing .......................................................................................................................................... 157
•
Exceptional circumstances: interlocutory review of ALJ decision ................................................. 158
•
Record not before ALJ ................................................................................................................... 159
•
Issues on appeal ............................................................................................................................ 160
•
New arguments on appeal ............................................................................................................ 161
•
Reconsideration of ARB decision ................................................................................................... 162
•
Jurisdiction of federal courts ......................................................................................................... 163
•
Standard of review ........................................................................................................................ 165
•
Attorney’s fees .............................................................................................................................. 165
XIII.
PROCEDURE BEFORE THE FEDERAL COURTS ......................................................... 166
•
Federal district court jurisdiction .................................................................................................. 166
•
Possible preclusive effect of ALJ’s factual findings ........................................................................ 168
•
Compelling arbitration .................................................................................................................. 169
XIV.
EMPLOYER / EMPLOYEE / OTHERS .............................................................................. 169
•
Amendment of 49 U.S.C. § 42121 ................................................................................................. 169
•
Covered employers ........................................................................................................................ 170
•
Covered employees ....................................................................................................................... 174
•
Others ............................................................................................................................................ 178
XV.
EVIDENCE ................................................................................................................................. 178
XVI.
DAMAGES .............................................................................................................................. 183
XVII.
REINSTATEMENT AND EQUITABLE REMEDIES ....................................................... 193
XVIII.
ATTORNEY'S FEES AND COSTS ...................................................................................... 198
XIX.
DISMISSALS .......................................................................................................................... 207
•
Dismissal for cause before ALJ ...................................................................................................... 207
•
Dismissal for failure to state a claim upon which relief can be granted ....................................... 210
•
Stipulated dismissal....................................................................................................................... 211
•
Dismissal for cause before the ARB ............................................................................................... 211
XX.
MISCONDUCT AND SANCTIONS ......................................................................................... 212
XXI.
DELIBERATE VIOLATION ................................................................................................ 215
XXII.
SETTLEMENTS ..................................................................................................................... 215
XXIII.
RES JUDICATA ..................................................................................................................... 216
XXIV.
RELATIONSHIP TO OTHER LAWS/FORUM ................................................................. 216
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•
Federal Arbitration Act .................................................................................................................. 216
•
State laws ...................................................................................................................................... 224
•
United States Constitution ............................................................................................................ 226
XXV.
BANKRUPTCY ...................................................................................................................... 227
I.
STATUTE AND REGULATIONS
The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21)
was signed into law on April 5, 2000. The Act includes a whistleblower protection provision found
at 49 U.S.C. 42121.
•
Final AIR21 Regulations
On March 21, 2003, the Occupational Safety and Health Administration published a Final
Rule implementing the whistleblower provision of AIR21. Procedures for the Handling of
Discrimination Complaints Under Section 519 of the Wendell H. Ford Aviation Investment and
Reform Act for the 21st Century, Final Rule, 68 Fed. Reg. 14099 (Mar. 21, 2003). Among the
changes found in the Final Rule are (1) clarifications in the definitions section, (2) a clarification
of the complainant's burden of proof, (3) a change to lengthen the time provided for a respondent
to file a response with OSHA, (4) a clarification that an order of reinstatement is not appropriate
when it is established that the complainant is a security risk (whether or not the information is
obtained after the complainant's discharge), (5) a clarification that a respondent may seek
attorneys’ fees incurred during the OSHA investigation (up to $1,000) in a hearing before an ALJ
if it alleges that the complaint was frivolous or brought in bad faith, and (6) a provision that appeals
to the ARB are not a matter of right, but accepted at the discretion of the ARB.
•
Consolidated Appropriations Act of 2021
AIR21 was amended by the Consolidated Appropriations Act, 2021, H.R. 133, Section 118
of the Aircraft Certification, Safety, and Accountability Act. The Consolidated Appropriations
Act expanded coverage from air carriers and their contractors and subcontractors to holders of
certificates and their contractors, subcontractors, and suppliers. A summary of changes is below.
49 U.S.C. 42121(a)
Old language: “Discrimination against airline employees. No air carrier or contractor
or subcontractor of an air carrier may discharge an employee or otherwise discriminate
against an employee . . .”
New language: “Prohibited discrimination. A holder of a certificate under section
44704 or 44705 of this title, or a contractor, subcontractor, or supplier of such holder,
may not discharge an employee or otherwise discriminate against an employee . . .”
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49 U.S.C. 42121(d)
Old language: “Subsection (a) shall not apply with respect to an employee of an air
carrier, contractor, or subcontractor who, acting without direction from such air carrier,
contractor, or subcontractor (or such person’s agent), deliberately causes a violation of any
requirement relating to air carrier safety under this subtitle or any other law of the United
States.”
New language: “Subsection (a) shall not apply with respect to an employee of a holder
of a certificate issued under section 44704 or 44705, or a contractor or a subcontractor
thereof, who, acting without direction from such certificate-holder, contractor, or
subcontractor (or such person’s agent), deliberately casues a violation of any requirement
relating to aviation safety under this subtitle or any other law of the United States.”
49 U.S.C. 42121(e)
Old language: “In this section, the term “contractor” means a company that performs
safety-sensitive functions by contract for an air carrier.
New language: “In this section, the term ‘contractor’ means –
(1) a person that performs safety-sensitive functions by contract for an
air carrier or commercial operator; or
(2) a person that performs safety-sensitive functions related to the
design or production of an aircraft, aircraft engine, propeller,
appliance, or component therof by contract for a holder of a certificate
issued under section 44704.
II.
JURISDICTION
•
Extraterritoriality
AIR21 DOES NOT APPLY EXTRATERRITORIALLY; KEY FACTOR FOR DECIDING
WHETHER A CLAIM IS DOMESTIC OR EXTRATERRITORIAL IN APPLICATION IS
THE LOCATION OF THE EMPLOYEE’S PERMANENT OR PRINCIPAL WORKSITE
In Shi v. Moog Inc., ARB No. 2017-0072, ALJ No. 2016-AIR-00020 (ARB Dec. 5, 2019) (per
curiam), the ALJ dismissed Complainant’s AIR21 complaint because its adjudication would
require impermissible extraterritorial reach. On appeal, the ARB looked to the Supreme Court’s
decision in Morrison v. Nat’l Australia Bank, Ltd., 561 U.S. 247 (2010) and the ARB’s SOX
decision applying Morrison in Hu v. PTC Inc., ARB No. 2017-0068, ALJ No. 2017-SOX-00019
(ARB Sept. 18, 2019). The ARB noted that the Morrison analysis has two steps: “(1) whether the
statute at issue extends extraterritorially and, if not, (2) whether the activity comprising the focus
of the statute occurred within the United States or outside of it.” Slip op. at 3 (citations omitted).
The ARB further noted: “If the activity identified under Step 2 occurred within the U.S., then there
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is a permissible domestic application of the statute. . . . lf the activity occurred outside the U.S.,
then there is an impermissible extraterritorial application and the complaint must be dismissed.”
Id. at 3-4 (citations omitted).
The ARB reviewed the text of AIR21 and determined that “the employee protection provisions of
AIR 21 are not extraterritorial.” Id. at 4. The ARB thus ruled that “to allow the adjudication of the
complaint before us, it must be a domestic application of the employee protection provision of
AIR 21.” Id. The ARB determined that, although the overarching purpose of AIR21 may be air
carrier safety, the primary focus of the employee protection provisions of AIR21 “are necessarily
connected to the employee's compensation, terms, conditions, or privileges of employment.” Id. at
5. Accordingly, the ARB determined that the key factor for deciding whether a claim is domestic
or extraterritorial in application is the location of the employee’s permanent or principal
worksite—and that the location of other conduct is less critical, if not irrelevant. The ARB stated:
[A]n AIR 21 complaint concerning an adverse action that affects an employee at a
foreign principal worksite does not become territorial because the alleged
misconduct occurred in the U.S., or because it had, or would have, effects on U.S.
air carrier safety, or because the alleged retaliatory decision was made in the U.S.
Id. In the instant case, it was undisputed that:
. . . Complainant's primary worksite was in China, he was employed under a
Chinese contract, he was paid in Chinese currency, and his direct employer was a
Chinese corporation. The only alleged domestic contacts in this matter are that
Complainant 1) took a few work-related trips to the U.S., 2) believes that some of
the people responsible for the adverse action taken against him may be U.S.
citizens, and 3) complained about counterfeit parts that were used to manufacture
aircraft in the U.S. which were flown in the U.S.
Id. The ARB stated that such allegations, even if true, would not by themselves create a domestic
application of AIR21. The ARB thus affirmed the ALJ’s dismissal of the complaint.
The ARB noted that the FAA, which has primary responsibility for protecting aviation safety, had
been notified of and had investigated the matter.
EXTRATERRITORIAL APPLICATION OF AIR21 WHISTLEBLOWER PROVISION;
DISTRICT COURT DISMISSED RESPONDENT’S REQUEST FOR DECLARATORY
AND INJUNCTIVE RELIEF FROM DOL PROCEEDING ON THEORY THAT THE
ADMINISTRATIVE ADJUDICATION OVER A FOREIGN COMPANY WAS ULTRA
VIRES; RATHER THE AIR21 STATUTORY REVIEW SCHEME ALLOWS A
RESPONDENT TO SEEK REVIEW OF AN ADVERSE FINAL DOL ORDER BEFORE A
U.S. COURT OF APPEALS
In Bombardier, Inc. v. USDOL, 145 F. Supp. 3d 21 (D.D.C. Nov. 12, 2015) (case below 2014AIR-00017), the Plaintiff, a Canadian company that designs and manufactures aircraft and which
does not provide air transportation to the public, sought declaratory and injunctive relief on the
ground that DOL acted ultra vires by exercising jurisdiction over it in an impermissible
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extraterritorial application of the AIR21 whistleblower protection provision. The complainant in
the administrative action alleged that the Plaintiff discriminated against him by terminating his
employment in retaliation for reporting safety of flight issues on an aircraft that had been flight
tested in Wichita, Kansas. OSHA had dismissed for lack of jurisdiction, finding that the Plaintiff
was not an air carrier, the complainant was not an employee, within the meaning of the applicable
provisions of AIR21. Before the ALJ, the complainant argued that the Plaintiff was covered as an
air carrier, or contractor of an air carrier, for AIR21 purposes, and that he was thus an employee
under AIR21. The Chief ALJ issued an order to show cause why the complaint should not be
dismissed for lack of jurisdiction, but ultimately declined to dismiss because the complainant met
the “fair notice” minimal pleading requirements for a DOL whistleblower protection proceeding.
The case was then assigned to a presiding ALJ who denied the Plaintiff’s (i.e., Bombardier) motion
for summary decision, finding that the record showed a significant nexus between the Plaintiff and
the U.S. The ALJ denied the Plaintiff’s request for leave to file an interlocutory appeal to the ARB,
request to stay discovery, and alternative request for the ALJ to reconsider the denial of summary
decision. The ALJ also affirmed the earlier denial of summary decision, noting that the standard
for consideration of such a motion required viewing the evidence in the light most favorable to the
complainant. As the Plaintiff continued to resist the administrative proceedings, it filed the district
court action. The ALJ had not yet held a hearing on the merits.
Statutory review scheme
DOL argued before the district court that (1) the Plaintiff failed to exhaust its administrative
remedies, and (2) “the existing administrative scheme, which allows Bombardier to seek review
of a final Department order in a United States Court of Appeals, precludes review by a district
court now.” Slip op. at 13. The district court found the second argument persuasive and thus did
not address the exhaustion argument. The court first examined the statutory scheme’s text,
structure and purpose and found that it has “much in common with other review schemes that
preclude premature district court review.” Id. at 15. The court found that the AIR21 whistleblower
review scheme “carries a fairly discernible congressional intent to preclude extrastatutory district
court suits.” Id. at 19 (footnote omitted). The court then examined whether the complainant’s
AIR21 claims are of the type Congress intended to be reviewed within the statutory structure. The
court found that the Plaintiff did not lack meaningful administrative review of its claims, noting
that DOL had adjudicated its jurisdictional challenge and that the jurisdictional issue was an open
issue that, if found adversely to the Plaintiff’s position, could be appealed to a court of appeals.
The court found that the burden of discovery was not constitute irreparable injury. The Plaintiff’s
objection that the U.S. government’s administrative process is “out of line” merely highlights what
that process is trying to determine: whether the Plaintiff’s actions fall under U.S. regulatory
authority. The court noted that the Plaintiff might, after a hearing on merits, convince the ALJ that
AIR21 could not apply to the Plaintiff – or the ARB could rule in the Plaintiff’s favor on review
of the ALJ’s decision. The court stated:
Bombardier’s situation shows us precisely why courts tend to “await the
termination of agency proceedings:” so that the agency proceedings may “obviate
all occasion for judicial review.” Jarkesy v. SEC, 803 F.3d 9, 27 (D.C. Cir. 2015)
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(quoting Standard Oil, 449 U.S. at 244 n.11). This is “a feature” of the
administrative process, “not a bug.” Id.
Id. at 28. The court was not persuaded that its claims were wholly collateral to the AIR21 review
provisions, or that the claims were outside DOL’s expertise. The court summarized:
In sum, Bombardier’s claims are of the type intended to be reviewed within the
AIR21 statutory structure. Pursuing these claims administratively will not foreclose
later meaningful judicial review, the claims are not wholly collateral to AIR21
review provisions, and those claims do not fall outside the Department’s expertise.
For these reasons, and because the AIR21 statutory structure has a fairly discernible
intent to preclude premature suits in federal court, Bombardier’s complaint must be
dismissed. Holding otherwise would continue the parallel litigation of identical
issues in this Court and in the Department of Labor, leaving open the possibility of
future inconsistent judgments. See generally Jarkesy v. SEC, 803 F.3d 9, 30 (D.C.
Cir. 2015) (discussing this possibility). To avoid that unwelcome result, the Court
will dismiss Bombardier’s complaint for lack of jurisdiction.
Id. at 33 (footnote omitted).
Administrative Procedure Act
The court was no more persuaded by the Plaintiff’s APA claim, noting that the APA’s review
provisions are not jurisdictional. The court noted that “[e]xisting statutory review procedures are
adequate when they offer relief of the “same genre” as APA review” . . . and that here, once the
Plaintiff “obtains a final order from the Department, AIR21 grants it the right to judicial review in
a court of appeals and specifies that appellate review must conform to the APA. See 49 U.S.C. §
42121(b)(4)(A) . . . .” Slip op. at 38 (citations omitted). The court summarized:
In other words, AIR21’s statutory review procedures do not just offer relief of the
“same genre” as APA review; judicial review under AIR21 exactly parallels review
otherwise available under the APA. Because the AIR21 statutory scheme
establishes separate and adequate procedures for judicial review of the
Department’s actions, the APA cannot create an escape hatch for Bombardier.
Bombardier must complete administrative proceedings in the Department before
seeking judicial review. And, even then, it must seek judicial review in the courts
of appeal, not before this Court.
Id. at 39 (footnote omitted).
[Editor’s note: The administrative action was concluded by the ALJ’s approval of a settlement agreement. See
Sobhani v. Bombardier Aerospace Corp., 2014-AIR-00017 (ALJ Oct. 7, 2016).]
U.S. CITIZEN STATIONED IN FRANCE; ALJ FINDS THAT BECAUSE KEY
ELEMENTS OF COMPLAINT DEMONSTRATED A SUBSTANTIAL CONNECTION
WITH THE U.S. DOMESTIC AVIATION SYSTEM, THE COMPLAINT WAS A
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TERRITORIAL CLAIM FOR RELIEF, AND THEREFORE IT WAS NOT NECESSARY
TO REACH THE ISSUE OF WHETHER AIR21 WHISTLEBLOWER PROVISION HAS
EXTRATERRITORIAL APPLICATION
In Dos Santos v. Delta Airlines, Inc., 2012-AIR-20 (ALJ Jan. 11, 2013), the Complainant was a
U.S. citizen working as an aircraft maintenance technician at Charles de Gaulle airport in Paris,
France. He filed an AIR21 whistleblower complaint, and an amended complaint, alleging that he
suffered a hostile work environment and was denied numerous promotions in retaliation for
reporting to his employer and the FAA that his supervisor had falsified FAA safety clearance
documents. Before the ALJ, the Respondent filed a motion to dismiss on the ground that the AIR21
whistleblower provision does not apply extraterritorially to employees employed outside the U.S.
The ALJ noted that issue of whether AIR21's whistleblower provision protects employees of a
covered air carrier when they are stationed outside the territorial United States is a question of first
impression. The ALJ found that the parties appeared to agree that the two-part test announced in
Morrison v. National Australian Bank, Ltd., 130 S. Ct. 2869 (2010) applied: (1) does the statutory
provision reach extraterritorial claims? (2) given the facts alleged, is extraterritorial application of
the statute required to enforce the complaint? The ALJ reviewed Morrison and the subsequent
application of that standard, and found particularly instructive the ARB's decision in Villanueva v.
Core Laboratories, NV, ARB No. 09-108, ALJ No. 2009-SOX-6 (ARB Dec. 22, 2011) (en banc),
in which the ARB reordered the analysis and adopted a multifactor approach to the second
Morrison step. The ALJ, following the Villanueva method of applying the Morrison test, found
that the Complainant's complaint falls within the focus of AIR21 as a whole and Section 42121
specifically, and that enforcement of the complaint does not require extraterritorial application of
the statute.
The ALJ, looking to statutory sources, found that the general focus of AIR21 is to ensure the safety
of the air traveling public by strengthening the United States' aviation system. Moreover, the
legislative history both supported that the general focus of AIR21 is to bring about fundamental
improvements in air safety, and that Congress intended to achieve that goal by regulating the air
carriers that operate within the domestic aviation system and under the purview of FAA
regulations. In regard to Section 42121's purpose, the ALJ found it is not primarily a "labor law,"
but rather as a means for incentivizing airline employees to speak up when they observe violations
of Federal aviation safety laws. The ALJ concluded:
Upon review of the factors identified in Villanueva and assuming all facts asserted
by Complainant to be true, I find that the instant complaint alleges a claim that falls
squarely within both focuses of congressional concern, and therefore the complaint
can be enforced without applying Section 42121 extraterritorially. The instant
complaint concerns an employee of a U.S.-based air carrier that is subject to FAA
regulations who reported to the FAA and company officials that his manager
violated Federal aviation safety laws by fraudulently clearing aircraft as safe for air
travel. Other than the location of the employee's position, each key element of
Complainant's complaint has significant interaction with the United States aviation
system, and, heedful of Section 42121's role as a means for safeguarding the U.S.
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aviation system, it is clear that circumstances of the complaint place it within the
scope of claims that Congress intended to enforce.
Slip op. at 26. In regard to the location of the protected activity and the underlying violation, the
ALJ found that although some of the recipients of the Complainant's protected communications
were located in Europe, several others, including the FAA and the Respondent's safety and
compliance department, were located in the U.S. Although the complained of conduct (falsification
of aircraft release forms) occurred abroad, those actions directly implicated Federal aviation safety
regulations. Those actions put the Respondent in violation of an FAA regulation and presented a
potential safety hazard for any U.S. passengers and for persons near the path of the aircraft as it
entered U.S. airspace upon returning from France.
In regard to the location of the retaliatory actions, the complaint alleged that the denials of the
Complainant's promotion applications were made by officials of the Respondent based in the U.S.
The harassment that allegedly occurred at Charles de Gaulle airport was repeatedly reported to
officials both at the airport and in the U.S. The ALJ rejected the Respondent's contention that the
place where the adverse action impacts or affects the employee is where the adverse action occurs,
and found that an adverse action occurs where the employer makes the decision to take the action.
In regard to the location of the employer and employee, the ALJ found that "[n]either the location
of the employee's job, nor the location of the employer, is conclusive of the territoriality of this
complaint, because ... Section 42121 is not chiefly a labor law." Slip op. at 28. The ALJ explained:
In contrast to Title VII ..., Section 42121 is not principally focused on regulating
labor relationships, standards or conditions, and to the extent that AIR21 exhibits a
domestic focus, it is the domestic aviation system (and the actors within it) that are
the objects of the statute's solicitude. Consequently, because Section 42121's
regulation of employment relationships is a secondary means for achieving the
statute's primary ends, the physical locations of the employee and the employer are
relevant, but not determinative, factors. Their value in my analysis depends on the
extent that they evidence whether the instant complaint falls within or outside the
focus of congressional concern in enacting AIR21 and Section 42121. And, as
explained fully above, the primary focus of AIR21 is safeguarding the United
States' aviation system, while Section 42121 furthers this purpose by strengthening
airlines' compliance with Federal aviation safety laws by incentivizing airline
employees to speak out when evidence of violations arise. So while it is relevant
that Complainant worked and observed violations of Federal Aviation
Administration safety laws and regulations at an overseas location, it is even more
relevant that Complainant works for, and reported the legal failings of, a major
American air carrier that is a key participant in the American aviation system. It is
significant that Respondent is, and Complainant is an employee of, a U.S.-based,
FAA-certified air carrier under 14 C.F.R Part 121, the activities of which are subject
to Federal aviation safety regulations, and whose compliance with said regulations
is the very reason Congress enacted Section 42121.
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Slip op. at 28-29 (footnote omitted).
Because the ALJ found that enforcement of the instant complaint did not require extraterritorial
application of Section 42121, he found that he did not need to assess whether Section 42121
extends to extraterritorial claims.
JURISDICTION; COVERAGE IS NOT A JURISDICTIONAL ISSUE
In Broomfield v. Shared Services Aviation, 2004-AIR-20 (ALJ Aug. 9, 2004), the ALJ observed
that the issue of whether the Respondent is an air carrier covered by AIR21 is an issue of coverage
rather than jurisdiction.
•
Authority of ALJ and ARB to invalidate employer policy
THE ALJ AND ARB DO NOT HAVE THE AUTHORITY TO INVALIDATE EMPLOYER
POLICY OR DECLARE IT UNLAWFUL. HOWEVER, THE ALJ CAN INSTRUCT
EMPLOYERS TO ABATE VOLITATIONS WHEN THE COMPANY’S POLICY
VIOLATES THE STATUTE WHEN APPLIED.
In Hoffman v. NetJets Aviation, Inc., ARB No. 09-021, ALJ No. 2007-AIR-7 (ARB Mar. 24,
2011), the Complainant argued on appeal that the ALJ erred when he refused to consider whether
a policy of the Respondent's Flight Operation Manual requiring pilots to inform management
before writing up safety issues violated a federal aviation regulation, or whether a policy barring
recordings by employees relating to the Respondent's business was unlawful because it did not
specifically exclude protected activity under AIR21. Rather, the ALJ only considered whether the
Respondent had applied its policies to the Complainant in a manner that violated AIR21. The ARB
agreed with the ALJ's analysis. The ARB stated that under AIR21, it can hear complaints of alleged
discrimination in response to protected activity and, upon finding a violation, order the employer
to take affirmative action to abate the violation. Because the Complainant failed to prove a
violation of AIR 21, it had no power to declare the policies invalid or unlawful. The ARB thus
agreed with the ALJ that he had to determine only whether the Respondent discriminated or
retaliated in applying its policies to the Complainant. One dissenting member indicated that she
would have declared the Respondent's recordation policy, as written, illegal as a means of
affirmative relief.
•
Employer’s interests and protection of pilots
AIR21 POLICIES: EMPLOYER’S MANAGEMENT INTERESTS; PILOT RECORD
IMPROVEMENT ACT
In Hirst v. Southeast Airlines, 2003-AIR-47 (ALJ May 26, 2004), the ALJ found that the
Complainant was discharged in violation of the employee protection provision of AIR21 when he
called the Respondent's dispatcher to question an increase in the maximum gross weight of the
aircraft he was to fly from 105,000 to 108,000 pounds. Complainant was referred to a Captain who
assured the Complainant that he was confident that the increase was correct and in compliance
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with FAA regulations. Complainant requested that appropriate written documentation be faxed to
him, but the Captain directed Complainant to fly the aircraft. Complainant refused and the Captain
directed Complainant to report to Respondent's offices the next day to turn in his manuals and
identification. Although the Respondent disputed whether the Complainant was thereafter
discharged, the ALJ found that the record established that he was. The ALJ's decision contains a
discussion of the statutory history of the whistleblower provision of AIR21 and of the inherent
conflict of the interests protected by that law with an airline management's goals. The ALJ wrote:
Regulations obliging pilots to record or report irregularities engender conflicts with
managers trying to ensure on time performance, and maximize the number of
revenue legs flown; management goals suffer when recorded deficiencies have to
be corrected. See generally, John J. Nance & Charles David Thompson, The Pilot
Records Improvement Act of 1996: Unintended Consequences, 66 J. Air L. & Com.
1225 (2001). Traditionally, a pilot facing the dilemma of reporting irregularities or
antagonizing management could resign or accept termination rather than comply
with pressure to overlook dangerous conditions. Before 1996, a pilot who resigned
or was terminated in these circumstances could apply to another air carrier and give
his explanation for the previous job separation or loss. See Nance & Thompson,
supra, at 1226-28. The Pilot Record Improvement Act of 1996 (PRIA) complicates
the pilot's situation, for PRIA requires air carriers to report the records of former
employees to prospective airline employers. 49 U.S.C.A. § 44703(h)(1) (2003). An
unfavorable entry in the employment record, especially one that an air carrier
terminated the pilot for "unsatisfactory performance," becomes permanent and
public, with little meaningful opportunity for explanation, and potentially ruinous
consequences for honest and competent pilots.
Id.; Nance &Thompson, supra at 1236.
The statutes and regulations governing air commerce assign safety the highest priority. See 49
U.S.C.A. § 40101(a)(1) and (3), (d)(1) (2003). PRIA minimizes the possibility that a pilot with
dangerously flawed judgment may obtain employment with an airline that does not know about
earlier instances of incompetence, by making pilots' personnel files available to later potential
employers. AIR 21 serves as a sort of counterbalance. It promotes safe air commerce by protecting
pilots (and other airline employees) from implicitly or overtly coercive memoranda placed in their
personnel files to discourage reports about deficiencies in operations or equipment. Both PRIA
and AIR 21 reflect the central position pilots occupy in implementing the Congressional policy of
making air travel as safe as possible.
Federal law confers great responsibility on a pilot in command, and commensurate authority. "The
pilot in command of an aircraft is directly responsible for, and is the final authority as to the
operation of that aircraft." FAR 91.3. The pilot has a non-delegable duty to ensure an aircraft is
airworthy.... Id.
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12
III. BURDEN OF PROOF AND PRODUCTION
•
Prima facie case
SPLIT ARB PANEL HOLDS THAT ALJ ERRS BY NOT CONSIDERING SOX CLAIM
IN TERMS OF PRIMA FACIE CASE
In Fordham v. Fannie Mae, ARB No. 12-061, ALJ No. 2010-SOX-51 (ARB Oct. 9, 2014), a split
panel of the ARB indicated that an ALJ errs in not analyzing the case in terms of a prima face case.
The ARB panel indicated that the ALJ's error was understandable because the ARB had been
inconsistent in speaking about the showing required at the investigatory and the adjudicatory stages
of a SOX case. The panel, quoting Bechtel v. Administrative Review Board, USDOL, 710 F.3d 443
(2d Cir. 2013), indicated that a prima facie case is merely a term referring to the four elements of
a whistleblower complaint, and that "'[T]he same basic four-part framework of the
complainant's prima facie case applies not only when deciding whether the allegations are legally
sufficient, see 29 C.F.R. § 1980.104(e)(2), but also when an ALJ considers whether the
complainant has satisfied his or her evidentiary burden under 49 U.S.C.A. § 42121(b)(2)(B)(iii).'''
The ARB panel made a distinction between a showing sufficient to raise a prima facie inference at
the investigatory stage, and the elements of a prima facie case at the adjudicatory stage.
The Fordham panel stated: "at the evidentiary stage the complainant is required to prove the
four prima facie elements by a preponderance of the evidence." Id., USDOL/OALJ Reporter at
19. See also id. at 17 (ALJ's failure to analyze the evidence in terms of a prima facie case may be
due, at least in part, to the ARB's confusing and inconsistent use of terms); id. at 20 (for a
complainant to prove at hearing before an ALJ a prima facie case of retaliation through
circumstantial evidence, that evidence must establish by a preponderance of the evidence that the
protected activity was a contributing factor in the adverse action.).
[Editor's Notes: In earlier statements from the ARB, it was indicated that an ALJ errs analytically when considering
whether a complainant made out a prima facie case following an evidentiary hearing on the merits - the question at
that stage only being whether the complainant met his or her burden of proof by a preponderance of the evidence. See,
e.g, Henrich v. Ecolab, Inc., ARB No. 05-030, ALJ No. 2004-SOX-51 (ARB June 29, 2006), slip op. at 16 ("Merely
presenting a prima facie case does not entitle a complainant to prevail, but merely forces a respondent to articulate its
reason or reasons for an unfavorable personnel action. Once a respondent has done so, and a full hearing has been
held, the prima facie case analysis is no longer relevant."); Clemmons v. Ameristar Airways, Inc., ARB Nos. 05-048,
05-096, ALJ No. 2004-AIR-11 (ARB June 29, 2007) (ALJ erred in analytical approach by considering whether the
complainant proved a prima facie case by a preponderance of the evidence; rather, once a case has proceeded to
hearing, a complainant's burden is to prove by a preponderance of evidence ("demonstrate") that the protected activity
was a contributing factor in the alleged adverse action); Adornetto v. Perry Nuclear Power Plant, 1997-ERA-16 (ARB
Mar. 31, 1999) (once a case has been tried fully on the merits, it no longer serves any analytical purpose to address
and resolve the question of whether the complainant presented a prima facie case. Instead, the relevant inquiry is
whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability).
The Fordham decision was primarily about what evidence should be weighed in determining whether a complainant
had established "contributing cause" by a preponderance of the evidence. In Powers v. Union Pacific Railroad Co.,
ARB No. 13-034, ALJ No. 2010-FRS-30 (ARB Oct. 17, 2014), the ARB provided notice that it will review, en banc,
the "contributory factor" analysis addressed in Fordham. Although Fordham was a SOX case, and Powers is a FRSA
case, both are analytically grounded in the burdens of proof specified in AIR21.]
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13
ALJ DECISION; FACT THAT ALJ ERRONEOUSLY COMMENCED DECISION WITH
DISCUSSION OF PRIMA FACIE CASE DOES NOT RENDER THE DECISION
UNREVIEWABLE WHERE THE ALJ APPLIED THE CORRECT PROOF STANDARDS
IN THE REMAINDER OF THE DECISION
In Luder v. Continental Airlines, Inc., ARB No. 10-026, ALJ No. 2008-AIR-9 (ARB Jan. 31,
2012), the Respondent argued on appeal that the ALJ committed reversible error by holding the
Complainant responsible for producing only prima facie evidence of retaliation, rather than
proving such retaliation by a preponderance of the evidence. The ARB found that the ALJ had
commenced his legal analysis under AIR 21 with an erroneous statement of the respective burdens
of proof, but used the proper proof standards in the remainder of the decision. "Thus, unlike the
situation in Clemmons v. Ameristar Airways[, ARB No. 05-048, ALJ No. 2004-AIR-11 (ARB June
29, 2007)] cited by Continental, the ALJ's initial misstatement of the burdens of proof standard in
this case does not present a situation where the ARB is unable to ascertain whether the ALJ
properly applied AIR 21's burden of proof requirements."
•
ALJ errors in analytical framework or credibility determinations
ALJ'S LACK OF PRECISION IN ANALYTICAL FRAMEWORK COMPELLED
REMAND
In Clemmons v. Ameristar Airways, Inc., ARB Nos. 05-048, 05-096, ALJ No. 2004-AIR-11
(ARB June 29, 2007), the ARB remanded for additional proceedings where the ALJ made four
errors of law in analyzing the Complainant's AIR21 whistleblower complaint. Specifically, the
ALJ erred when he (1) appeared to have merged the Respondent' burden of production with its
later burden to prove by clear and convincing evidence that it would have taken the adverse action
absent protected activity; (2) held that the Complainant proved a prima facie case by a
preponderance of the evidence (rather, once a case has proceeded to hearing, a complainant's
burden is to prove by a preponderance of evidence ("demonstrate") that the protected activity was
a contributing factor in the alleged adverse action); (3) appeared to have found that a finding of
pretext compels a finding of discrimination; and (4) failed to consider whether the Respondent
proved that it would have terminated the Complainant absent protected activity. The ARB
acknowledged that the ALJ's errors may have been simply imprecision; but that imprecision
created uncertainty about the ALJ's findings that compelled a remand.
BURDEN TO SHOW THAT ALJ'S CREDIBILITY DETERMINATIONS WERE
INCREDIBLE OR UNREASONABLE
Where an ALJ credits the testimony of the respondent's witnesses, a complainant who maintains
on ARB review that those witnesses were not truthful has the burden of demonstrating that the
ALJ's credibility determinations were incredible or unreasonable. Gary v. Chautauqua Airlines,
ARB No. 04-112, 2003-AIR-38 (ARB Jan. 31, 2006) (citing Lockert v. U.S. Dept. of Labor, 867
F.2d 513, 519 (9th Cir. 1989).
•
Burdens of proof in AIR21 whistleblower complaint; general outline
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In Brune v. Horizon Air Industries, Inc., ARB No. 04-037, ALJ No. 2002-AIR-8 (ARB Jan. 31,
2006), the ARB restated the procedures and burdens of proof applicable to an AIR21
whistleblower complaint, which had earlier been detailed in Peck v. Safe Air Int'l, Inc., ARB No.
02-028, ALJ No. 2001-AIR-3, slip op. at 6-18 (ARB Jan. 30, 2004). The Board distinguished the
procedure followed at the OSHA investigatory stage and at the hearing stage before the OALJ and
the ARB, with the essential difference being that to secure an investigation, a complainant needs
only to raise an inference of unlawful discrimination (i.e., establish a prima facie case), while at
the adjudicatory stage a complainant must prove unlawful discrimination. The ARB wrote that:
This is not to say, however, that the ALJ (or the ARB) should not employ, if appropriate, the
established and familiar Title VII methodology for analyzing and discussing evidentiary burdens
of proof in AIR21 cases. The Title VII burden shifting pretext framework is warranted where the
complainant initially makes an inferential case of discrimination by means of circumstantial
evidence. The ALJ (and ARB) may then examine the legitimacy of the employer's articulated
reasons for the adverse personnel action in the course of concluding whether a complainant has
proved by a preponderance of the evidence that protected activity contributed to the adverse action.
Thereafter, and only if the complainant has proven discrimination by a preponderance of evidence
and not merely established a prima facie case, does the employer face a burden of proof. That is,
the employer may avoid liability if it "demonstrates by clear and convincing evidence" that it
would have taken the same adverse action in any event. Brune, supra, slip op. at 13-14 (footnotes
omitted). In Brune, the ALJ erred in that he required the Complainant to prove his case according
to the prima facie case standard, rather than the preponderance of the evidence standard. It is not
enough at the hearing phase for a complainant merely to establish a rebuttable presumption that
the employer discriminated. Rather, a complainant must prove by a preponderance of the evidence
protected activity, adverse action and causation.
The ALJ also erred because, once the Complainant established a prima facie case, the ALJ assigned
the Respondent the burden of demonstrating by clear and convincing evidence that it would have
taken the same adverse personnel action in the absence of his employee's protected activity. Rather,
a respondent's burden upon a complainant's establishment of a prima face case is one
of production, not proof -- the respondent needs only to articulate some legitimate, nondiscriminatory reason for its actions -- the respondent's "clear and convincing evidence" burden of
proof only arises if the complainant has proven discrimination by a preponderance of the evidence.
•
Applicable decisional law; burdens of proof and production
In Davis v. United Airlines, Inc., 2001-AIR-5 (ALJ July 25, 2002), the ALJ reviewed the
legislative history of AIR21's whistleblower provision, and concluded that the decisional law
developed under the ERA, the Whistleblower Protection Act, and the whistleblower provisions of
federal environmental statutes, provide the framework for litigation arising under AIR21.
The ALJ then set out a statement of the burden of proof standards, similar to the statement of such
by the ALJ in Taylor v. Express One International, Inc., 2001-AIR-2 (ALJ Feb. 15, 2002) , with
some additional clarifications. For example, the ALJ noted that the "contributing factor" element
is only applicable to the establishment of a prima facie case.
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15
BURDEN OF PROOF AND PRODUCTION IN AIR21 CASES; TITLE VII
METHODOLOGY
In Peck v. Safe Air International, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3 (ARB Jan. 30,
2004), the ARB outlined the scope of coverage, procedures, and burdens of proof under the AIR21
whistleblower provision. The Board emphasized that the law imposes a "gatekeeper" standard
prior to hearing during the preliminary stage of the proceeding -- the required "prima face
showing" of section 42121(b)(2)(B)(i). The standard that ALJs apply at hearing and that the ARB
applies on review, however, is as follows: "If a complainant 'demonstrates,' i.e., proves by a
preponderance of the evidence, that protected activity was a 'contributing factor' that motivated a
respondent to take adverse action against him, then the complainant has established a violation of
AIR21 section 519(a). 49 U.S.C.A. § 42121(b)(2)(B)(iii)." (citation omitted). The Board wrote
that the distinction, then, between standards applied for purposes of investigation and adjudication
of a complaint concerns the complainant's burden: To secure investigation a complainant merely
must raise an inference of unlawful discrimination; to prevail in an adjudication a complainant
must prove unlawful discrimination.
The ARB also observed that the AIR21 whistleblower provision was modeled on section 211 of
the ERA, and that the ARB had found in Kester v. Carolina Power & Light Co., ARB No. 02-007,
ALJ No. 2000-ERA-31, slip op. at 5-8 and nn.12-19 (ARB Sept. 30, 2003), that the Title VII
methodology for analyzing and discussing evidentiary burdens of proof was appropriate to use in
ERA section 211 cases. The ARB, quoting its decision in Kester, wrote:
"[T]he Title VII burden shifting pretext framework [is] warranted in [the] typical [ERA]
whistleblower case where the complainant initially makes an inferential case of discrimination by
means of circumstantial evidence." Id. at 7 n.17. The ARB may thus examine the legitimacy of the
employer's articulated reasons for the adverse personnel action in the course of concluding whether
a complainant in an ERA case has proved by a preponderance of the evidence that protected
activity contributed to the dismissal. Id. See McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Unless a complainant proves that the employer fired him in part because of his protected
activity, it is unnecessary to proceed to determine whether the employer has demonstrated by clear
and convincing evidence that it would have taken the same unfavorable personnel action in the
absence of the protected activity. Kester, slip op. at 8.
The Board then held that the same approach is applicable under AIR21 section 519. See 49
U.S.C.A. § 42121(b)(2)(B)(iii)-(iv).
IV. PROTECTED ACTIVITY
•
In general
PROTECTED ACTIVITY; ARB SUMMARIZES CURRENT STATE OF THE LAW ON
WHAT CONSTITUTES PROTECTED ACTIVITY UNDER AIR21; INFORMATION
PROVIDED MUST BE SPECIFIC AS TO AIRCRAFT SAFETY; AIR21 IS NOT A
GENERAL REMEDY FOR EMPLOYMENT GRIEVANCES
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16
PROTECTED ACTIVITY; WHERE EMPLOYER ACCEPTED COMPLAINANT’S
SUGGESTION TO IMPROVE CLARITY OF POLICY ON AVOIDING DAMAGE TO
PLANE DOORS, THE ARB FOUND THAT THE SUBJECTIVE AND OBJECTIVE
REASONABLENESS OF COMPLAINANT’S BELIEF WAS UNDISPUTED
PROTECTED ACTIVITY; COMPLAINANT’S PRINTING OF DOCUMENTS TO
PROVIDE TO OSHA WAS PROTECTED ACTIVITY UNDER AIR21’S ELEMENT OF
“ABOUT TO PROVIDE” ANY INFORMATION ABOUT AN ALLEGED VIOLATION
OF FEDERAL LAW RELATED TO AIR SAFETY
In Forrand v. FedEx Express, ARB No. 2019-0041, ALJ No. 2017-AIR-00016 (ARB Jan. 4,
2021) (per curiam), the ARB affirmed the ALJ’s Decision and Order denying Complainant’s
AIR21 retaliation claim in a per curiam decision in which the ARB limited its discussion to
Complainant’s arguments on appeal and to clarification of certain of the ALJ’s rulings.
In regard to protected activity, the ARB initially summarized the legal standard under AIR21:
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 also objectively reasonable.
The information provided to the employer or federal government must be specific
in relation to a given practice, condition, directive, or event that affects aircraft
safety. A complainant’s belief is objectively reasonable if it is one that a person of
similar training and experience would hold.
Slip op. at 3-4 (footnotes omitted). In regard to the reasonableness of the complainant’s belief, the
ARB noted “the obvious fact that the text of the statute directs us to consider whether the safety
of the flying public is, or might be, enhanced by the whistleblower’s behavior. Air 21 is not a
general remedy for employment grievances unrelated to air safety.” Id. at 3, n.8.
The ALJ found that Complainant established one instance of protected activity. The ARB,
however, found three instances. The ARB only discussed the two additional instances in its
decision.
First, the ARB noted that—although the ALJ had discussed an incident in which Complainant had
e-mailed his supervisor about the wording of a policy statement on avoiding damage to plane doors
by moveable elevators that resulted in the policy being modified to improve clarity based on
Complainant’s feedback—the ALJ had not considered whether this was protected activity. The
ARB determined that “Complainant’s e-mail to his supervisor about the policy is protected activity
because it relates to protecting the airplane’s doors and, obviously, to air safety. The Complainant’s
subjective belief and objective reasonableness of that belief are undisputed because Respondent
accepted Complainant’s suggestion and took action in response to it.” Id. at 4.
Second, the ALJ found that Complainant’s printing of documents at one of Respondent’s facilities
for the purpose of supplying them to OSHA was “not protected activity because Complainant’s
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17
‘individual steps’ of printing the documents were not discreet protected activity under the
Act.” Id. at 4-5 (footnote omitted). The ARB, however, found that this was protected activity
under the “about to provide” element of AIR21:
Th[e ALJ’s finding] is correct as far as it goes, but AIR 21 protects an employee
from retaliation when the employee is “about to provide” any information about an
alleged violation of Federal law related to air safety. The Board has held that “an
employee engages in protected activity if he attempts to provide information of
retaliation that violates AIR 21.” In this instance, Complainant printed documents.
In printing the specific documents he did, Complainant was “about to provide”
relevant information for his AIR 21 complaint, which concerned an alleged
violation of Federal law related to air safety. Complainant therefore engaged in
protected activity.
Id. at 5 (footnotes omitted). The ARB noted, however, that this was harmless error by the ALJ
because Complainant had not been subjected to retaliation.
PROTECTED ACTIVITY; DIFFICULTIES EXPERIENCED BY COMPLAINANT IN
MAKING TRIP TO DRUG TESTING FACILITY FOR RANDOM DRUG TEST,
ALTHOUGH ARDUOUS, DID NOT FALL WITH AIR21 PROTECTIONS
In Antonellis v. Republic Airways, ARB No. 2019-0046, ALJ No. 2018-AIR-00024 (ARB Feb. 8,
2021) (per curiam), Complainant, who worked as a First Officer for Respondent, filed an AIR21
complaint alleging that Respondent retaliated against her after she submitted Aviation Safety
Action Program (ASAP) report concerning a flight related concern, and after she provided notice
of intent to file an ASAP related to difficulties she experienced in traveling to a drug testing
facility.
Prior to the flight in question, Complainant had been among 350-400 employees who could be
selected for a random drug test by a third-party drug testing administrator through its randomgenerator program. Complainant was informed of her selection for a random drug test two days
after the flight-related ASAP report. Complainant experienced difficulties on her way to the drug
testing facility, and informed Respondent that she was going to file an ASAP report concerning
the trip conditions. Upon arriving at the facility, she was unable to produce a sufficient specimen,
and although informed that she needed to stay to follow the “shy bladder” procedure, she informed
Respondent that she could not produce a sufficient specimen and needed medical
attention. Although Respondent did not give her permission to leave the drug test, she
left. Respondent suspended Complainant, and later terminated her employment for the test
refusal. A union grievance was filed, and Complainant was reinstated pending the outcome of a
FAA investigation. After the FAA completed the investigation and revoked Complainant’s license
and medical certificate, Respondent issued a second letter of termination.
The ALJ found that the flight-related ASAP was protected activity under AIR21, but not the notice
of intent to file an ASAP related to the trip to the drug testing facility. The ALJ found that
Complainant failed to prove by a preponderance of the evidence that flight related ASAP was a
contributing factor in her selection for a random drug test, in Respondent reporting her as a drug
test refusal, or in Respondent’s decision to terminate her employment.
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On appeal, Complainant argued that the ALJ erred in finding that the notice of intent to file an
ASAP about the travel conditions to the drug testing facility was not protected activity, and in
finding that the other ASAP report was not a contributing factor in the adverse employment
actions. Complainant also challenged the ALJ’s findings of fact and credibility determinations.
The ARB found that the ALJ’s decision was supported by substantial evidence, and that
Complainant had not shown an abuse of discretion or reversible error by the ALJ. The ARB
summarized: “We recognize that the trip to the testing facility was arduous but those activities
and conditions do not fall within the statute’s protections. Most importantly, there was simply no
evidence that Complainant’s protected conduct was at all linked to her selection to be drug tested.
They were wholly separate, to put it simply, incidences. The record is clear on this point.
Accordingly, we summarily AFFIRM the ALJ’s D. & O.” Slip op. at 6.
PROTECTED ACTIVITY; COMPLAINANT’S RENEWED RAISING OF CONCERNS
THAT PUBLIC POSTING OF FLIGHT AND PACKAGE TRACKING DATA COULD
ASSIST TERRORISTS WAS NOT SUBJECTIVELY OR OBJECTIVELY REASONABLE
WHERE THE ISSUE WAS LONG KNOWN, AND AIR SAFETY AGENCIES HAD NOT
TAKEN ACTION ON THE QUESTION; IT IS THE FAA, AND NOT THE AIRLINES,
THAT POSTS THE DATA; ALTHOUGH AIRLINES MAY OPT OUT OF SUPPLYING
THE DATA, TO DO SO WAS NOT ILLEGAL; MERE POTENTIAL FOR IMPROVING
SECURITY DOES NOT MEAN AIRLINE WAS VIOLATING A LAW OR REGULATION
In Estabrook v. Administrative Review Board, USDOL, No. 19-60716 (5th Cir. June 30, 2020)
(per curiam), the Fifth Circuit held that substantial evidence supported the ALJ’s finding that
AIR21 protected activities had not contributed to Respondent FedEx’s decisions to ground
Estabrook and to require a compulsory medical evaluation.
The court first addressed the ALJ’s findings that comments made by Estabrook, who was an
experienced pilot, during an August 9, 2013 meeting were not protected activity. Estabrook had
demanded a meeting with FedEx’s CEO to report “something related to 9-11.” A meeting with
senior FedEx officials (but not the CEO) took place on August 9. During the meeting Estabrook
recommended that FedEx stop making flight- and package-tracking data available to the public
because terrorists could make use of that data to detonate a bomb. Estabrook had raised the same
claim in 2002. Estabrook also brought up that he had heard that a former colleague who had
attempted to hijack a plane had converted to Islam while in jail. Estabrook thought that FedEx
should go to DOJ to request eavesdropping on the former colleague, but offered no other basis for
this view than his belief that the former colleague was Muslim.
Because Estabrook had not challenged DOL’s contention that to be protected, an employee’s
statements indicating a belief that air-carrier safety rules exist must be subjectively and objectively
reasonable, the court assumed, without deciding, that this was the correct standard. The court noted
OSHA’s observation that this standard was in line with the Fifth Circuit’s interpretation of the
SOX whistleblower provision, but also noted that the statutory language was different—SOX
referring to reports that a complainant “reasonably believes constitutes a violation” of certain
securities law—whereas AIR21 only describes the reporting of “any violation or alleged
violation.”
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19
The ALJ found that Estabrook’s comments were not subjectively reasonable because he had
known about the public availability of tracking data for over 10 years, and that for several years
U.S. intelligence agencies had been aware of terrorist’s plans to use such data, but the agencies
had taken no steps to curtail it. As to objective reasonableness, the ALJ found that the availability
of tracking information was well known to the general public, and yet aviation safety agencies had
not taken action on the question. The court observed: “it is the FAA—not FedEx—that makes
flight-tracking data available to the public. True, carriers can opt out of public disclosure. But all
that matters is that the FAA permits disclosure of the data, so that disclosure does not violate the
law. And, as the ALJ noted, the mere potential for improving security ‘does not mean that [FedEx]
was violating any law or regulation.’” Slip op. at 7. The court thus did not disturb DOL’s
conclusion that the August 9 comments were not protected activity under AIR21.
PROTECTED ACTIVITY; ALJ ERRED IN FINDING THAT RETALIATORY ACTIONS
NOT INVESTIGATED BY OSHA WERE NOT BEFORE HIM FOR THE DE NOVO
HEARING
In Swint v. NetJets Aviation, Inc., ARB No. 2017-0051, ALJ Nos. 2014-AIR-00021, 2016-AIR00011 (Apr. 27, 2020) (per curiam), the ARB summarily affirmed the ALJ’s conclusion that none
of the employment actions described in Complainant’s AIR21 complaint were taken in retaliation
for protected activity. The ARB, citing 29 C.F.R. § 1979.107(b), stated that the ALJ erroneously
concluded that two of the alleged retaliatory actions were not before him because they were not
investigated by OSHA. The ARB, however, found the error harmless because those claims failed
on alternative grounds.
PROTECTED ACTIVITY; SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S
DETERMINATION THAT COMPLAINANT DID NOT HAVE AN OBJECTIVELY
REASONABLE BELIEF THAT A VIOLATION EXISTED OR WAS LIKELY TO
OCCUR, WHERE NONE OF SAFETY CONCERNS RAISED BY COMPLAINANT
WERE IMMINENT OR ENTIRELY TRUTHFUL
In Kreb v. Jackson Jet Center, ARB No. 2018-0065, ALJ No. 2016-AIR-00028 (ARB Sept. 28,
2020) (per curiam), the ARB found that the ALJ’s determination that Complainant did not engage
in protected activity under AIR21 was supported by substantial evidence. The ALJ had found that
Complainant did not have an objectively reasonable belief that a violation existed or was likely to
occur considering the knowledge available to a reasonable person in the same factual
circumstances. The ARB stated: “Critical in this regard are the ALJ’s findings, supported by the
substantial evidence of record, that none of the safety concerns were imminent or entirely truthful.
The record shows that a pilot with the same experience and training would not have thought the
cited safety concerns were likely or imminent violations of federal aviation standards, but at most
possibilities dependent on factors that were unknown or unlikely at the time Complainant raised
his concerns. Complainant offered no evidence that a pilot with his training and experience would
have agreed that accepting the July 9 flight assignment would have posed a safety risk.”
PROTECTED ACTIVITY; INFORMATION PROVIDED BY COMPLAINANT ONLY
HAS TO BE RELATED TO ANY VIOLATION OR ALLEGED VIOLATION;
COMPLAINANT NEED NOT HAVE WAITED FOR AN FAA VIOLATION TO OCCUR
FOR A REPORT TO BE PROTECTED ACTIVITY
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20
PROTECTED ACTIVITY; RULINGS OF HINDSMAN AND MALMANGER—FINDING
THAT REPORTS IN THOSE CASES WERE NOT PROTECTED ONCE
COMPLAINANTS’ KNEW THAT REPORTED MATTER WAS NOT A VIOLATION OR
HAD BEEN RESOLVED —WERE DISTINGUISHABLE IN INSTANT CASE WHERE
AT TIME REPORTS WERE MADE THE MATTER HAD NOT BEEN RESOLVED AND
COMPLAINANT’S REPORTS WERE NOT MADE SIMPLY TO “CLOAK”
COMPLAINANT WITH WHISTLEBLOWER PROTECTION
In McMullen v. Figeac Aero North America, ARB No. 2017-0018, ALJ No. 2015-AIR-00027
(ARB Mar. 30, 2020) (per curiam), Complainant, the General Manager of Respondent’s Wichita
airline components plant, filed an AIR21 retaliation complaint alleging that his employer
terminated his employment in retaliation for reporting safety violations. The ALJ found in favor
of Complainant. The ARB affirmed.
In regard to protected activity, the ARB stated:
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.4
“The information provided to the employer or federal government must be specific
in relation to a given practice, condition, directive, or event that affects aircraft
safety.” Hindsman v. Delta Air Lines, Inc., ARB No. 09-023, ALJ No. 2008-AIR013, slip op. at 5 (ARB June 30, 2010).
Slip op. at 4. In the instant case, the ALJ found that Complainant engaged in protected activity
when he informed the CEO of Respondent’s parent company that Respondent’s vice-president of
sales threatened Respondent’s quality assurance manager because she refused to falsify First
Article Inspection Report (FAI) documentation in violation of a FAA regulation. Although in the
first report Complainant had not cited to a specific regulation, the ALJ found that was not necessary
and that Complainant’s concerns were well-based and reasonable.
The ALJ also found that the quality assurance manager had raised concerns about proper
paperwork, which Complainant reported to the parent company’s CEO by email, informing that
omitting information on the FAI could be considered fraud and a violation of FAA regulations.
The ARB affirmed that this communication qualified as protected activity. The ARB stated:
“Moreover, information only has to be related to any violation or alleged violation and
Complainant need not have waited for an FAA violation to occur in order to report the omission
and have whistleblower protection.” Id. at 5.
On appeal, Respondent contended that the Board’s holdings in Hindsman, supra, and Malmanger
v. Air Evac EMS, Inc., ARB No. 08-071, ALJ No. 2007-008 (ARB July 2, 2009), required a
different outcome. The Board disagreed:
In Hindsman, the Board held that the complainant could not have had a reasonable
belief that flying with the portable oxygen concentrator on board violated air safety
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21
regulations once she had confirmed that the item was permitted by the FAA. These
facts are not analogous to those in this case as McMullen was reporting potential
violations, which the ALJ found were objectively reasonable. In addition,
in Malmanger, the Board affirmed an administrative law judge’s finding that the
complainant did not have a reasonable belief that the company violated an order,
regulation, or standard of the Federal Aviation Administration or any other
provision of Federal law relating to air carrier safety. At the time he reported his
concerns to management, the complainant knew the problems had been resolved
and the ALJ found that his complaints were insincere and made to forestall what he
believed would be an adverse performance evaluation. In this case, the ALJ found
that McMullen’s concerns were sincere and not made to “cloak himself” with
whistleblower protection. Moreover, the concerns had not been resolved by the time
the Complainant reported his concerns to [the parent company’s CEO]. Thus, we
affirm the ALJ’s finding that McMullen engaged in protected activity on July 26
and 28, as well as when he filed the report to the FAA on July 30, 2014 as they are
supported by substantial evidence.
Id. 5-6.
PROTECTED
ACTIVITY;
TO
CONSTITUTE
PROTECTED
ACTIVITY,
COMPLAINANT NEED NOT ESTABLISH AN ACTUAL VIOLATION OF A FEDERAL
RULE OR REGLUATION RELATED TO AIR SAFETY, BUT MUST HAVE BOTH A
SUBJECTIVELY AND OBJECTIVELY REASONABLE BELIEF THAT A VIOATION
OCCURRED OR WAS ABOUT TO OCCUR
In Cerny v. Triump Aerostructures-Vought Aircraft Division, ARB No. 2019-0025, ALJ No.
2016-AIR-00003 (ARB Oct. 31, 2019), Complainant filed a complaint alleging that Respondent
retaliated against him in violation of AIR21’s whistleblower protection provisions for raising air
transportation safety concerns. On appeal, the only instance of protected activity preserved for
ARB review concerned an engineering report submitted by Complainant. The lead engineer had
returned the report to Complainant with a heavy set of redlines and a directive to make changes.
Complainant made some changes, but submitted a checklist of changes he refused to make.
On appeal, the Complainant argued that the ALJ erred in finding that—although Complainant had
a subjective belief that the change refusals were based on engineering science and Respondent’s
manual—it was not an objectively reasonable belief that Complainant’s checklist of declined
changes was protected activity. Complainant argued that that he need not show that a law was
actually violated, but need only prove that he had a reasonable belief that his report related to Air
carrier safety. Complainant also argued that the ALJ failed to take into account that another person
had reviewed the report after Complainant’s termination and did not have objections to
Complainant’s work. Complainant further challenged the ALJ’s credibility finding concerning the
lead engineer.
The ARB, however, affirmed the ALJ’s ALJ findings on protected activity. The ARB
acknowledged that Complainant need not prove an actual violation to engage in protected activity
under AIR 21, but only a reasonable belief that a violation of a federal rule or regulation related to
air safety occurred or was about to occur. The ARB stated that nonetheless “an employee’s
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22
reasonable belief is comprised of both a subjective and an objective component….” Slip op. at 8.
The ARB found that the ALJ’s findings were supported by substantial evidence. Testimony
showed that the lead engineer had another engineer review Complainant’s report, and that engineer
provided negative feedback concerning Complainant’s refusal checklist. In addition, Complainant
had not been proficient in using analytical software and there were issues throughout the report.
PROTECTED ACTIVITY; WHERE COMPLAINANT ASSISTED AND PARTICIPATED
IN NTSB INVESTIGATION OF CRASH, THIS WAS SUFFICIENT TO ESTABLISH
PROTECTED ACTIVITY UNDER § 42121(a)(4), AND IT WAS NOT NECESSARY ON
APPEAL TO DETERMINE WHETHER THE MATTTERS REPORTED WERE ALSO
PROTECTED ACTIVITY UNDER § 42121(a)(1) OR (2)
In Yates v. Superior Air Carrier LLC, ARB No. 2017-0061, ALJ No. 2015-AIR-00028 (ARB
Sept. 26, 2019) (per curiam), Respondent argued on appeal that Complainant had not established
that he engaged in protected activity when he emailed an NTSB investigator about concerns with
the NTSB’s report concerning a crash in which Complainant had been the First Officer (secondin-command), as Complainant had not identified any FAA or other air safety order, regulations or
standard that was allegedly violated. The ARB, however, agreed with the ALJ that, regardless of
whether Complainant’s reports were themselves protected activity under 49 U.S.C. § 42121(a)(1)
or (2), both Complainant’s interview with the NTSB and his later email to the NTSB qualified as
assistance or participation in a proceeding relating to carrier safety as described in 49 U.S.C. §
42121(a)(4). Because this finding was sufficient to resolve the question of protected activity, the
ALJ had correctly resolved the matter with this basic finding despite the parties’ zealous arguments
on additional facts and theories of law.
PROTECTED ACTIVITY; COMPLAINANT’S RAISING OF SECURITY CONCERNS
ABOUT FEDEX’S ONLINE PACKAGE TRACKING SYSTEM WAS NOT PROTECTED
ACTIVITY; REASONABLE BELIEF ELEMENT NOT ESTABLISHED BECAUSE
COMPLAINANT KNEW THAT THE COMPLAINED OF ACTIVITY WAS PERMITTED
BY THE FAA
In Estabrook v. Federal Express Corp., ARB No. 2017-0047, ALJ No. 2014-AIR-00022 (ARB
Aug. 8, 2019) (per curiam), Complainant was a pilot for FedEx. His refusal to fly in bad weather
and associated OSHA complaint (later withdrawn when FedEx took no disciplinary action) were
both protected activity under AIR21. However, the ARB agreed with the ALJ that, although AIR21
protects providing information about “security” even though security is not specifically mentioned
in the status, the security concerns expressed by Complainant during a meeting with management
officials did not constitute protected activity in this case. The ARB cited its decision in Hindsman
v. Delta Air Lines, Inc., ARB No. 09-023, ALJ No. 2008-AIR-013, slip op. at 5 (ARB June 30,
2010), in which it was found that a “complainant did not engage in protected activity when the
complainant knew that the FAA permitted the complained of activity.” The ARB stated that in the
instant case, Complainant “could not have had a reasonable belief that publishing low-level flight
or tracking information constituted a violation of federal air carrier safety or security laws.
Publishing some level of tracking data is an industry-wide practice and not prohibited. . . . The
FAA and other related entities had received complaints from Estabrook and others expressing
concern about this practice in 2001 and 2002, but did not prohibit the activity. Estabrook was only
suggesting a policy change for FedEx to voluntarily or proactively withdraw publishing data to
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23
make its safety or security procedures more effective.” Slip op. at 10 (emphasis as in original)
(footnote omitted).
PROTECTED ACTIVITY; ALLEGATION THAT COWORKERS HAD SMUGGLED
OTHER EMPLOYEES ONTO FLIGHTS WITHOUT LISTING THEM ON THE
MANIFEST SUFFICIENT TO WITHSTAND A FRCP 12(b)(6) MOTION TO DISMISS
BECAUSE THE COMPLAINANT, A CUSTOMER SERVICE REPRESENTATIVE,
COULD REASONABLY HAVE PERCEIVED THIS TO BE A SAFETY ISSUE
PROTECTED ACTIVITY; WHERE COMPLAINANT SUBMITTED MATTERS
OUTSIDE THE PLEADINGS IN RESPONSE TO A MOTION TO DISMISS, THE ARB
RULED THAT THE ALJ SHOULD HAVE CONSIDERED THE MOTION AS A MOTION
FOR SUMMARY DECISION RATHER THAN A FRCP 12(b)(6) MOTION
In Hukman v. U.S. Airways, Inc., ARB No. 15-054, ALJ No. 2015-AIR-3 (ARB July 13, 2017),
the ALJ had granted the Respondent’s motion to dismiss for failure to state a claim upon which
relief can be granted. The ALJ applied FRCP 12(b)(6). The Complainant had alleged that she
engaged in protected activity “when she reported 1) that coworkers were smuggling co-workers
onto planes without listing them on the manifest (and that this was unsafe because of weight and
balance issues), 2) that co-workers engaged in an altercation with her (which she calls the airport
rage incident), and 3) that a nurse was practicing with an expired license. The ALJ concluded that
none of these activities were protected.” Slip op. at 5. The ARB reiterated the law concerning what
constitutes protected activity under AIR21:
For activity to be protected under 49 U.S.C.A. § 42121(a)(1), a complainant must
provide information relating to a violation of a Federal Aviation Administration
(FAA) order, regulation, or standard or of any federal law relating to air carrier
safety. A complainant must have a reasonable belief in a violation and this
reasonable belief has both objective and subjective components. To prove
subjective belief, a complainant must prove that she actually “believed that the
conduct [s]he complained of constituted a violation of relevant law.” To determine
whether a subjective belief is objectively reasonable, one assesses a complainant’s
belief taking into account “‘the knowledge available to a reasonable person in the
same factual circumstances with the same training and experience as the aggrieved
employee.’”
Id. at 4-5 (citations omitted).
The ARB affirmed the ALJ’s findings that the airport rage incident and the report about a nurse’s
expired license did not state claims with respect to protected activity because these reports did not
purport to involve violations of FAA orders, regulations, or standards, or any federal laws relating
to air carrier safety. The ARB, however, reversed the ALJ’s conclusion that the Complainant did
not state a claim with respect to the allegation that coworkers were smuggling other employees
onto planes.
The ARB first noted that it appeared that because the ALJ had ruled on the Respondent’s motion
to dismiss under FRCP 12(b)(6), the ALJ had not considered materials submitted by the
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Complainant outside of her pleadings including materials attached to her request for hearing and
her response to the Order to Show Cause. The ARB found that the pleadings would have survived
a 12(b)(6) motion to dismiss because the allegation that “flights were taking off with incorrect
numbers and types of people listed on the manifest because the incorrect information touched on
the safety of the flights and because weight on a flight could reasonably be perceived to be a safety
issue to one such as [the Complainant], a customer service representative.” Id.at at 6. The ARB
also noted that, although not required to do so, the Complainant had cited 14 C.F.R. Part 121 in
her first prehearing statement in regard to weight and balance limitations.
The ARB, citing FRCP 12(d), also found that the ALJ should have considered the motion as a
motion for summary decision and considered the outside-the-pleadings submissions. The ARB
reviewed the submissions, which included many reports by the Complainant of smuggling people
onto aircraft, not counting jumpseaters, and counting adults as a children; an accident description
of a plane crash caused in party by weight and balance issues; and a CBS news article about a FAA
fine against a carrier for failing to calculate baggage weight on dozens of flights. The ARB found
that the Complainant’s pleadings and submissions showed a genuine issue of material fact as to
whether the Complainant held a reasonable belief that the weight and balance issues were
violations of the FAA regulations.
PROTECTED ACTIVITY; AIR21 DOES NOT REQUIRE PROTECTED ACTIVITY TO
RELATE “DEFINITIVELY AND SPECIFICALLY” TO SAFETY
In Hukman v. U.S. Airways, Inc., ARB No. 15-054, ALJ No. 2015-AIR-3 (ARB July 13, 2017),
in granting the Respondent’s motion to dismiss, the ALJ had found that the alleged protected
activity must implicate safety definitively and specifically. The ARB, however, cited Sewade v.
HaloFlight, Inc., ARB No. 13-098, ALJ No. 2013-AIR-9, slip op. at 8 (ARB Feb. 13, 2015), in
which the ARB held that AIR 21 does not require protected activity to relate “definitively and
specifically” to safety.
PROTECTED ACTIVITY; FAILURE TO STATE A CLAIM; SOX COUNT DISMISSED
WHERE PLAINTIFF FAILED TO ALLEGE THAT HIS COMPLAINTS ABOUT
FAILURE TO COMPLY WITH FAA REGULATIONS INCLUDED A REPORT OF A
BELIEF THAT SUCH FAILURES WERE A FRAUD ON SHAREHOLDERS
In Neely v. Boeing Co., No. 16-cv-1791 (W.D. Wash. May 15, 2018) (2018 U.S. Dist. LEXIS
81771; 2018 WL 2216093) (related to 2018-AIR-00019), the district court granted the Defendant’s
motion to dismiss for failure to state a claim on the count of the Plaintiff’s complaint that was
based on the SOX whistleblower provision. The court found that the Plaintiff’s second amended
complaint only stated that the Plaintiff made complaints regarding the Defendant’s alleged failure
to comply with FAA regulations, and did not contain an allegation that he reported his belief that
these actions were defrauding shareholders to the Defendant or to any federal agency. The Plaintiff
alleged that he filed complaints that he was being retaliated against for being a whistleblower, but
did not specifically allege that he raised any allegations of shareholder fraud prior to any alleged
retaliation. The court thus found that the Plaintiff failed to allege that he engaged in protected
activity under SOX.
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PROTECTED ACTIVITY; REPORT OF TURBULENCE ON PREVIOUS FLIGHT NOT
LOGGED BY PREVIOUS PILOT; CHALLENGE OF REFUSAL TO CONDUCT
INSPECTION
In Cont’l Airlines, Inc. v. Admin. Review Bd., USDOL, No. 15-60012 (5th Cir. Jan. 7, 2016)
(unpublished) (2016 U.S. App. LEXIS 324; 2016 WL 97461)(case below ARB No. 10-026, ALJ
No. 2008-AIR-00009), the Fifth Circuit found that substantial evidence supported the ARB’s
decision that “Continental [the Petitioner] retaliated against Luder [the AIR21 Complainant] when
it suspended him for logging turbulence on an earlier flight reported to him by a member of the
previous flight crew and triggering an inspection which resulted in a delayed flight.” Slip op. at 12.
The court noted: “To establish protected conduct, the employee must show that he reported a
violation of federal safety law. Specifically, activity is protected ’because the employee
provided…information relating to any violation or alleged violation of any order, regulation, or
standard of the [FAA].’ Moreover, the employee’s belief that a violation of federal law occurred
must be reasonable.” Slip op. at 5 (footnotes omitted).
The court found that substantial evidence supported the ARB finding that Luder reported an
alleged violation of federal law. Because he believed that the airplane went through severe
turbulence, Luder’s actions implicated federal regulations in two ways. First, by logging the
turbulence, he effectively reported a violation by the previous pilot for failing to log his encounter
with severe turbulence. Second, by challenging Continental’s refusal to conduct the inspection and
refusing to acquiesce in Continental’s objection to an inspection he reasonably believed was
required, Luder reported that Continental tried to cause him to violate FAA regulations.
The court also found that Luder’s belief that the airplane encountered severe turbulence was
reasonable. A crewmember who was on the first flight had described winds so strong they nearly
tore the wings off, sent a person to the medical clinic, and appeared on the radar as pink—the
greatest degree of turbulence. Defendant was found to have known that Luder logged the severe
turbulence and requested an inspection, as the logbook entry and triggered inspection by Luder
was the subject of a heated telephone conversation between him and Continental officials.
PROTECTED ACTIVITY IN AIR21 CASE; COMPLAINANT NEED NOT ACTUALLY
CONVEY REASONABLE BELIEF TO HIS OR HER EMPLOYER
PROTECTED ACTIVITY IN AIR21 CASE; COMPLAINANT’S INTERNAL
REPORTING TO MANAGEMENT OF POTENTIAL FAA RULES VIOLATION MAY BE
SUFFICIENT AND THE FAA NEED NOT ALSO BE INFORMED
In Bondurant v. Southwest Airlines, Inc., ARB No. 14-049, ALJ No. 2013-AIR-7 (ARB Feb. 29,
2016), the ARB vacated the ALJ’s decision and order granting summary judgment in favor of the
Respondents in an AIR21 whistleblower case where a genuine issue of material fact existed that
precluded summary decision. The ALJ found that the Complainant may have had a reasonable
concern that the Respondent was failing to comply with a requirement to report shipping incidents
to the FAA, but that the Complainant must have communicated that concern and that the record
showed that the Complainant did not raise concerns about reporting until he was being discharged.
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26
The ARB determined that the ALJ erred in focusing on the lack of communication of the concerns.
The ARB wrote:
We hold that the ALJ unduly limited his consideration of protected activity to
whether Bondurant communicated to Respondent his reasonable belief that
Respondent was failing to report a FAA violation. The ALJ stated: “However, it is
not enough that a complainant honestly and reasonably believed there was or would
be a violation. He must also have communicated that concern and the essence of
Respondent’s Motion is that there is nothing in the record to allow a finding of fact
to decide that he did so.” This was error for two reasons. First, we have repeatedly
held that a complainant need not actually convey reasonable belief to his or her
employer’; “[t]he reasonable belief standard requires an examination of the
reasonableness of a complainant’s beliefs, but not whether the complainant actually
communicated the reasonableness of those beliefs to management or the
authorities.” Second, Bondurant presented evidence that on February 22, 2012, he
reported to upper management that Respondent had transported lithium batteries in
an unsafe manner. This is sufficient to raise a genuine issue of material fact with
respect to protected activity. Protection under the statute may be afforded to reports
of information relating to air carrier safety—a complainant need not also report the
air carrier’s failure to report such information to the FAA.
USDOL/OALJ Reporter at 5 (footnote omitted) (emphasis as in original).
NO PROTECTED ACTIVITY UNDER AIR21 WHERE EMPLOYEE OPPOSED
FEDERAL FLIGHT DECK OFFICER (FFDO) PROGRAM GENERALLY BUT DID NOT
DEMONSTRATE GOOD FAITH BELIEF THAT FLYING WITH FFDO PILOT WOULD
POSE SAFETY RISK
In Burdette v. ExpressJet Airlines, Inc., ARB No. 14-059, ALJ No. 2013-AIR-16 (ARB Jan. 21,
2016), the Complainant filed a complaint alleging that he was terminated from his position as a
pilot based on his protected activity of refusing to alternate flight legs with a Federal Flight Deck
Officer (FFDO), an individual authorized and trained to carry a firearm in aircraft cockpits to
defend against acts of criminal violence. The Complainant alleged that he felt unsafe flying in the
presence of an FFDO, and over the course of several years he engaged in a number of actions
indicating his opposition to the FFDO program, including sending complaint letters and refusing
to fly with FFDOs. These actions culminated in his being required to sign a “Last Change
Agreement” and being issued a warning letter from his employer. On the date of the alleged
protected activity, the Complainant was assigned to fly as co-pilot with an FFDO. After learning
that his request for a replacement pilot had not been granted, the Complainant designated the FFDO
to be the flying pilot for each flight leg of the multi-day trip, stating that the assignment was
necessary for him to safely manage the cockpit in the presence of the FFDO. After refusing the
on-call chief pilot’s request that he alternate flying legs of the trip with the FFDO, the Complainant
was terminated from his position.
The Board found that substantial evidence in the record supported the ALJ’s finding that the
Complainant failed to prove that he engaged in AIR21 protected activity. The Board agreed with
the ALJ that the Complainant did not demonstrate a good faith belief that flying with an FFDO
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would have been too great a distraction for him to fly safely, given that the Complainant testified
that his previous flights with FFDOs had been conducted safely and that he was not distracted as
a flying pilot on these flights. The Board stated that, while Complainant opposed the FFDO
program and believed it to be unsafe generally, his testimony indicated that he believed he could
fly safely with FFDOs. Further, the Board found that the Complainant put forth no evidence that
individuals with his training and experience would have believed that safety would have been a
risk had he acted as flying pilot.
PROTECTED ACTIVITY; COMPLAINANT NEED NOT ESTABLISH AN ACTUAL
VIOLATION WHERE THE REPORTED MATTER RELATED TO A VIOLATION OR
ALLEGED VIOLATION OF FAA REQUIREMENT OR OTHER FEDERAL LAW
RELATED TO AIR CARRIER SAFEETY, AND EMPLOYEE'S BELIEF OF VIOLATION
WAS SUBJECTIVELY AND OBJECTIVELY REASONABLE
PROTECTED ACTIVITY; RESPONDENT CANNOT "CURE" OR ERASE
PROTECTED ACTIVITY BY ADMITTING TO WRONGDOING, APOLOGIZING, OR
AGREEING WITH THE COMPLAINANT ABOUT A SAFETY CONCERN
PROTECTED ACTIVITY; FINDING THAT RESPONDENT DID NOT CONDONE
SAFETY PROBLEMS OR FAA VIOLATIONS IS NOT RELEVANT TO QUESTION
WHETHER COMPLAINANT ENGAGED IN PROTECTED ACTIVITY
PROTECTED ACTIVITY; AIR21 DOES NOT REQUIRE THAT PROTECTED
ACTIVITY RELATE "DEFINITELY AND SPECIFICALLY" TO A SAFETY ISSUE
In Sewade v. Halo-Flight, Inc., ARB No. 13-098, ALJ No. 2013-AIR-9 (ARB Feb. 13, 2015), the
Complainant was a helicopter pilot for the Respondent. The ALJ determined that the Complainant
had not engaged in protected activity, finding that none of the issues that the Complainant raised
involved safety issues or that the Respondent was "condoning" safety issues in violation of FAA
rules or regulations. Regarding a fuel system transfer light issue, the ALJ found that the aircraft's
safe operation was not involved, and that the Respondent's Director of Operations "cured any
alleged improper conduct" when he admitted wrongdoing and apologized for pressuring the
Complainant to fly when she was not comfortable doing so. Regarding an aircraft pitching issue,
the ALJ found that the problem did not involve an FAA violation. The ALJ did not address two
other allegations of protected activity by the Complainant.
The ARB reversed the ALJ's determination on the fuel system transfer light issue. The ARB wrote:
The ALJ incorrectly analyzed the issue whether Sewade engaged in protected
activity. First, an employee need not prove an actual FAA violation to satisfy the
protected activity requirement where (1) the employee's report or attempted report
is "related to a violation or alleged violation of an FAA requirement or any federal
law related to air carrier safety, and (2) the employee's belief of a violation is
subjectively and objectively reasonable." Second, an employer cannot "cure"
protected activity or erase that it occurred by admitting to wrongdoing, by
apologizing, or by agreeing with the employee about a safety concern. When an
employee makes a protected complaint, the employer's response (positive or
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negative) does not change that AIR 21 protected activity has occurred. Third,
finding protected activity does not depend on whether an employer "condoned"
safety problems or FAA violations as the ALJ seems to have required. Finally, the
AIR 21 whistleblower statute does not require that protected activity relate
"definitely and specifically" to a safety issue.
USDOL/OALJ Reporter at 8 (footnotes omitted). Reviewing the evidence of record, the ARB
found that the transfer lights were designed to indicate that the aircraft was ready to fly, but had
not been turning on consistently; that the Complainant was the pilot in command and did not feel
that the helicopter was safe to fly and had so reported; and that it was undisputed that the lights
were not working and that the Complainant had reported about them because she subjectively
believed that there was a safety violation. The ARB also found that the Director of Operations'
statement that there would be no violation of FAA rules or regulations for the Complainant to fly
the helicopter "once the fuel transfer lights [turned] on and off as expected" suggested that there
may have been a violation before the lights worked as expected. The ARB found that the
Complainant's report and refusal to fly were each protected activity under AIR21, even if the
Director of Operations agreed with the Complainant's concern and her decision not to fly unless
the lights came on. The ARB further found that the Director of Operations apology for pressuring
the Complainant to fly was additional evidence of the objective reasonableness of the
Complainant's belief about the safety issue. Thus, the ARB reversed the ALJ and found that the
record established that the Complainant's report of the faulty fuel transfer lights, and related refusal
to fly, were protected activity under AIR21.
The ARB remanded for further factfinding on the other alleged instances of protected activity.
PROTECTED ACTIVITY; FIRST OFFICER WHO HAD BEEN FAILED ON A CHECK
FLIGHT TEST AND STATED THAT HE WOULD GO TO THE FAA; "ABOUT TO
PROVIDE" LANGUAGE FROM THE STATUTE PROTECTS EMPLOYEES WHO
THREATEN TO FILE COMPLAINTS WITH FEDERAL AUTHORITIES; ALJ ERRED
IN FINDING STATEMENT WAS TOO VAGUE TO CONSTITUTE PROTECTED
ACTIVITY; ALL THAT IS REQUIRED IS THAT THE COMPLAINANT REASONABLY
BELIEVED THAT HE WAS ABOUT TO PROVIDE COVERED INFORMATION
REGARDLESS OF WHETHER HE CONVEYED HIS REASONABLE BELIEF TO HIS
EMPLOYER
In Occhione v. PSA Airlines, Inc., ARB No. 13-061, ALJ No. 2011-AIR-12 (ARB Nov. 26, 2014),
the Complainant was a first officer seeking to upgrade to captain. As part of the upgrading process,
a candidate must go through a "check ride" test in a simulator. Check rides are administered by
"Aircrew Program Designees" (ADP), who are pilots approved to act for the FAA. Check rides
must adhere to federal regulations and "Practical Test Standards" (PTS), and the FSIMS inspector's
handbook. If a first officer fails a first attempt to upgrade to captain, the FAA requires retraining
and rechecking before the candidate can return to work as a first officer. The candidate may make
a second attempt after six months. According to the applicable collective bargaining agreement, if
a first officer fails the second attempt, the company has discretion on how to deal with the situation.
The Respondent's policy is to terminate the first officer's employment or allow him to resign in
lieu of termination.
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The Complainant failed his first check ride, and informed the Respondent that he intended to
contact the FAA. The Complainant failed his second check ride but later re-qualified as a first
officer. The Complainant sent a letter to Respondent grieving how the check rides had been
administered, copying the letter on FAA officials. Months later, the Complainant submitted an
FAA Hotline complaint asserting that the check rides had not been administered in accordance
with the PTS. The FAA made inquiries.
The Complainant entered a new upgrade class. The Complainant was failed on his third and fourth
check ride attempts, and was therefore terminated from employment. The Complainant filed an
AIR21 complaint with DOL.
The ARB affirmed the ALJ's findings that the Complainant engaged in protected activity on
several occasions. The ALJ found, however, that the Complainant had not engaged in protected
activity when he merely informed officials with the Respondent that he was going to the FAA
because the statements failed to allege any specific safety violations and were vague. The ARB
reversed this finding. The ARB noted that AIR21 protects employees "about to provide"
information, and that such language in other whistleblower statutes had been interpreted as
protecting employees who threaten to file complaints with federal authorities regardless of whether
the employee has actually filed a complaint. The ARB recognized that the ALJ had relied on prior
ARB authority holding that complaints must be specific under AIR21 to be protected
(e.g., Simpson v. United Parcel Serv., ARB No. 06-065, ALJ No. 2005-AIR-31, slip op. at 5 (ARB
Mar. 14, 2008); Peck v. Safe Air Int'l, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3, slip op. at 13
(ARB Jan. 30, 2004)), but stated that "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." USDOL/OALJ Reporter at 8 (footnote omitted). See Sylvester v.
Paraxel Int'l LLC, ARB No. 07-123, ALJ Nos. 2007-SOX-39, -42; slip op. at 17-19 (ARB May
25, 2011) ("reasonable belief standard requires an examination of the reasonableness of a
complainant's beliefs, but not whether the complainant actually communicated the reasonableness
of those beliefs to management or the authorities"); Knox v. U.S. Dep't of Labor, 434 F.3d 721,
725 (4th Cir. 2006) (inquiry into the "reasonable belief" of a complainant does not require that the
complainant convey his reasonable belief to management). The ARB concluded:
As long as [the Complainant] "reasonably believed" that he was "about to provide"
the FAA with "information relating to any violation or alleged violation of any
[FAA] order, regulation, or standard," his communications to [the ADP who
administered the check ride and the Director of Flight Standards] were protected
regardless of whether [the Complainant] conveyed his reasonable belief to his
employer. The relevant question is whether [the Complainant] reasonably believed
that the check ride [the ADP] administered violated an FAA standard when he told
both [the ADP and the Director of Flight Standards] that he was "going to the FAA."
USDOL/OALJ Reporter at 9. The ARB also determined that when the Complainant informed his
supervisors of his intent to go to the FAA, it would be logical to assume that it was for the same
reasons as specified in his protected communication from a month earlier.
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30
PROTECTED ACTIVITY; FACT THAT EMPLOYER AGREES WITH SAFETY
CONCERN DOES NOT NEGATE THE RAISING OF THE CONCERN AS PROTECTED
ACTIVITY
PROTECTED ACTIVITY; FACT THAT EMPLOYER GROUNDS A PLANE BASED ON
SAFETY CONCERN RAISED BY COMPLAINANT CONFIRMS THAT RAISING OF
COMPLAINT WAS REASONABLE
PROTECTED ACTIVITY; ATTEMPT TO TAPE RECORD MEETING TO DOCUMENT
RETALIATION UNDER AIR21 IS PROTECTED ACTIVITY
In Benjamin v. Citationshares Management, LLC, ARB No. 12-029, ALJ No. 2010-AIR-1 (ARB
Nov. 5, 2013), the Complainant was a pilot who flew passenger jets for CitationAir's private
clients. Prior to the beginning of a tour of duty, he saw the plane he was to fly being serviced and
undergoing a Continued Service Inspection. The mechanics confirmed in writing that the plane
passed inspection, including the landing gear struts. The next day, the Complainant observed a
problem with one of the landing gear struts, and the pilot in command agreed that it should be
reported. The Complainant contacted the Flight Duty Officer and was referred to the company's
Chief Pilot. The Chief Pilot advised on steps to bring the strut into compliance, but when those
were unsuccessful, agreed that the plane must be grounded. The Chief Pilot then instructed the
Flight Duty Officer to remove the Complainant from the flight and assign another pilot for the tour
of duty. CitationAir then summoned the Complainant for a face-to-face meeting at its headquarters
relating to the report of the landing gear strut. The next day the Complainant filed an Aviation
Safety Action Program (ASAP) report with CitationAir's Vice President of Safety alleging that
indirect pressure was being placed on pilots to keep planes flying, and that this was a dangerous
and unsafe situation. The Complainant, expecting to be fired, purchased a pocket-size audio
recorder. At the meeting, an HR employee was present, which confirmed for the Complainant that
he needed to record the meeting to protect himself. The meeting began with a discussion of the
wing strut incident. When the recorder noisily malfunctioned, the Complainant was asked by the
Chief Pilot why he was recording the meeting, to which the Complainant stated he was afraid the
Chief Pilot would yell at him. The Chief Pilot immediately had the Complainant turn in his
company key and ID card, and had him escorted from the building. Several days later the
Complainant received a termination letter. CitationAir subsequently denied the Complainant's
request to have the termination decision peer reviewed. The Complainant then filed an AIR21
complaint. Following a hearing, the ALJ concluded that the Complainant had not engaged in
protected activity. The ARB reversed that finding.
Report of landing gear strut concern -- fact that Respondent agreed with Complainant's safety
report did not negate the report as protected activity
The ALJ found that the grounding of the plane was not protected activity because everyone
concerned agreed that the plane had to be grounded. The ARB found that the ALJ focused too
narrowly on the grounding and overlooked the safety report regarding the landing gear strut. The
ARB stated that "The fact that management agrees with an employee's assessment and
communication of a safety concern does not alter the status of the communication as protected
activity under the Act, but rather is evidence that the employee's disclosure was objectively
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reasonable." USDOL/OALJ Reporter at 6. The ARB found that this report was protected activity
as a matter of law, even if CitationAir agreed with the concern and decided to ground the plane.
Filing of ASAP report -- fact that Respondent grounded the plane based on safety concern raised
by Complainant confirmed that Complainant's safety concerns were reasonable
The ALJ did not make an express ruling on whether the ASAP report was protected activity, but
the ARB found that it was protected activity as a matter of law because (1) it expressly raised
specific safety concerns about the landing gear strut incident, and (2) CitationAir's management
agreed that the plane needed to be grounded thereby confirming that the Complainant's safety
concerns were reasonable.
Attempting recording of meeting
The ALJ acknowledged that ARB authority holds that under the proper circumstances, the lawful
taping of conversations to obtain information about safety-related conversations is protected
activity and should not subject an employee to any adverse action. Hoffman v. NetJets Aviation,
Inc., ARB No. 09-021, ALJ No. 2007-AIR-7 (ARB Mar. 24, 2011). The ALJ, however, found that
the Complainant's attempted recording in the instant case was not protected activity because "such
a 'recording was not expected or intended to preserve evidence of a compromise of safety.'"
USDOL/OALJ Reporter at 8 (quoting ALJ's decision). The ARB disagreed. The ARB found that
protected activity under AIR21 includes an attempt to provide information of retaliation that
violates AIR21. Thus, if the Complainant held a reasonable belief of retaliation at the meeting he
was summoned to, then his attempted recording of such retaliation was protected activity. The
ARB stated: "The ALJ held that "the recording was not expected or intended to preserve evidence
of a compromise of safety." But the ALJ should have also considered whether [the Complainant]
had a subjectively and objectively reasonable belief that he would suffer unlawful whistleblower
retaliation at the meeting, including discipline, intimidation, threats, or coercion." USDOL/OALJ
Reporter at 8 (citation omitted). The ARB found that the ALJ had resolved all the material facts
on the issue, leaving only the legal question as to whether the attempted recording in this case was
protected activity. The ARB found that it could resolve the legal question without a remand to the
ALJ. The record showed that the Complainant held a reasonable belief that the purpose of the
meeting was to fire him. Moreover, the Complainant had filed his ASAP complaint alleging that
the CitationAir uses indirect pressure to avoid writing up maintenance issues, and reasonably
believed that the meeting would be such an instance. Thus, under the facts of the case, the ARB
found that the Complainant's attempt to record the "yelling" he expected was a protected attempt
to document the unlawful intimidation he raised in his ASAP.
PROTECTED ACTIVITY; WORK REFUSAL AND REITERATING SAME
COMPLAINTS AFTER EARLIER COMPLAINTS HAD BEEN SUFFICIENTLY
RESOLVED FOUND NOT TO BE OBJECTIVELY REASONABLE AND NOT
PROTECTED ACTIVITY UNDER AIR21
In Shactman v. Helicopters, Inc., ARB No. 11-049, ALJ No. 2010-AIR-4 (ARB Jan. 25, 2013),
the Complainant's protected whistleblower concerns all related to another pilot. The ALJ found
that the Respondent sufficiently addressed all of the Complainant's concerns, and that the
Complainant's subsequent refusal to fly with that other pilot was not objectively reasonable as that
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refusal rested entirely on the same complaints he had previously raised. Consequently, given the
Respondent's previous communications with the Complainant, the ALJ found that the
Complainant's refusal was unreasonable and not protected whistleblower activity. The
Complainant produced no evidence of any safety incidents involving the other pilot between the
date the Respondent had sufficiently addressed the prior concerns and the Complainant's
termination. The ALJ also found that the Complainant's FAA complaint during that gap of time
was objectively unreasonable and not protected activity because it merely repeated the previously
resolved complaints. The ALJ credited the Respondent's reasons for terminating the Complainant's
employment, including claims of misconduct and a "confrontational attitude and poor working
relationship with co-workers." The ALJ specifically found that the Complainant's safety
complaints had not factored into the decision to terminate his employment, and that the
Complainant failed to establish that any protected activity was a contributing factor in his
termination. The ARB found that substantial evidence supported the ALJ essential factual findings
and summarily affirmed the ALJ's Decision and Order dismissing the complaint.
PROTECTED ACTIVITY; COMPLAINT ABOUT CO-WORKER'S DRUG ABUSE
Where the work involves safety-sensitive functions, a complainant engages in protected activity
under the AIR21 whistleblower provision when complaining to management about a co-worker's
drug abuse on the job. FAA regulations contain extensive drug testing provisions and prohibitions
pertaining to illegal drug use by aviation industry workers who perform "safety-sensitive"
functions. Nagle v. Unified Turbines, Inc., ARB No. 11-004, ALJ No. 2009-AIR-24 (ARB Mar.
30, 2012).
PROTECTED ACTIVITY; LOGBOOK ENTRY IS PROTECTED ACTIVITY WHERE
COMPLAINANT ALSO DEMANDED A MECHANICAL INSPECTION BEFORE HE
WOULD PILOT THE PLANE
The ARB in Luder v. Continental Airlines, Inc., ARB No. 10-026, ALJ No. 2008-AIR-9 (ARB
Jan. 31, 2012), found that the ALJ properly found that the Complainant engaged in protected
activity when he wrote up in the aircraft logbook an incident of severe turbulence based on
information received from the prior flight crew, and demanded inspection of the aircraft before he
would pilot the plane. The ARB stated that although the logbook entry in and of itself may not
have constituted protected activity, the Complainant's actions forced the required mechanical
inspection following a situation involving severe turbulence. Thus, his actions were thus
distinguishable from Fabre v. Werner Enters., ARB No. 09-026, 2008-STA-010 (ARB Dec. 22,
2009), cited by the Respondent in which the ARB held that action taken as "an integral part of
compliance with the regulations," without more, does not constitute protected activity. The
Respondent had argued that the logbook entry was simply an integral part of compliance with the
regulations.
PROTECTED ACTIVITY; SUBJECTIVE AND OBJECTIVE BELIEF; CHECKING OFF
ON CREW MEMBER VERIFICATION LIST
In Blount v. Northwest Airlines, Inc., ARB No. 09-120, ALJ No. 2007-AIR-9 (ARB Oct. 24,
2011), the Complainant was a part-time probationary customer service agent. His mentor, who
was trying to provide the Complainant with the experience of being a lead gate agent, asked him
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to sign off on a crew verification list after she and another agent had checked in the crew members.
The Complainant refused because he had not seen any of the crew and had not verified their
identities personally. The Complainant continued to refuse even after a supervisor informed him
that signing off on the paperwork did not indicate that the he had checked each crew member
personally, but only that other agents had done so as evidenced by their initials next to each crew
member's name. Later, supervisors and a safety director met with the Complainant to try to get
him to understand the procedure, but after the Complainant insisted that it would be fraudulent for
him to check off the paperwork without personally checking the crew's identification, the
Complainant was discharged for insubordination. The Complainant then filed an AIR21
whistleblower complaint.
On appeal, the ARB found that verification of crew members' identities is on its face an air safety
concern, but that protected activity under AIR 21 has two elements: (1) the information the
complainant provides must involve a purported violation of a regulation, order, or standard relating
to air carrier safety, though the complainant need not prove an actual violation; and (2) the
complainant's subjective belief that a violation occurred must be objectively reasonable. The ARB
found that substantial evidence supported the ALJ's finding that while the Complainant firmly
believed that signing the crew list without verifying crew members' identities personally would
violate an FAA regulation, his belief was not objectively reasonable in light of the testimony of
his mentor, the person who had drafted the Respondent's policy on crew verification; the
Complainant's classroom trainer, and the customer service manager who fired the Complainant.
Consequently, the Complainant had not engaged in protected activity.
One member of the Board concurred with the result, but found that the problem was not that the
Complainant's actions were not objectively reasonable - the member finding that the Complainant
had an objectively rational basis for his confusion as a new trainee. The member stated that "I
believe it is a dangerous precedent to say that an initially objective reason for an airport security
concern loses its protected activity status because a team of veteran employees insists that a policy
does not say what it appears to say." USDOL/OALJ Reporter at 12 (footnote omitted). Rather, the
concurring member found that the Complainant did not have a subjectively reasonable belief that
a violation had occurred, having been more worried about personal liability than raising of a safety
concern.
PROTECTED ACTIVITY; PILOT'S OBLIGATION TO DEEM HIMSELF UNFIT FOR
FLIGHT BASED ON MEDICAL CONDITION; UNION REPRESENTATIVE'S
ADVOCACY THAT RESPONDENT'S POLICIES CONTRAVENED THE FEDERAL
AVIATION REGULATIONS
CLEAR AND CONVINCING EVIDENCE STANDARD; RESPONDENT COULD NOT
MEET STANDARD WHERE IT FAILED TO ESTABLISH THAT IT HAD A PREEXISTING POLICY OF REQUIRING MEDICAL DOCUMENTATION TO SUPPORT A
PILOT'S SICK LEAVE OR THAT THE PILOT HAD ADVANCE NOTICE OF SUCH A
REQUIREMENT
In Furland v. American Airlines, Inc., ARB Nos. 09-102, 10-130, ALJ No. 2008-AIR-11 (ARB
July 27, 2011), the Complainant, a pilot, had been counseled about the Respondent's belief that his
sick leave use was excessive. About six weeks later, on June 27, 2007, the Complainant took
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himself off a scheduled flight on sick leave due to gastrointestinal effects from airline food on a
prior flight. The next day the Employer advised the Complainant that if he did not provide a
doctor's note, he could be subjected to corrective action including reversal of his paid sick leave
to unpaid. [The parties disagreed about whether the Complainant had been previously informed of
the medical verification requirement; the ALJ found that the Complainant had not been so
previously informed.] A union representative then, on July 9, 2007, sent a letter to the Respondent
on the Complainant's behalf protesting the request for a medical note, and asserting that the request
for documentation was harassment and constituted unlawful "pilot pushing," i.e., pressuring a pilot
to fly when unfit in violation of the Federal Aviation Regulations (FARs). The letter further stated
that the Respondent had not told the Complainant that he would be under observation or that he
would be required to provide medical documentation for sick leave use.
Later the Complainant and his union representatives met with a company representative to discuss
the sick leave use on June 27, 2007, and the Complainant's failure to provide medical
documentation for that leave. The company representative stressed that the Complainant called in
sick after the Respondent warned him against calling in sick, while the union representative argued
that the Respondent's demand for medical documentation pressured the Complainant to fly when
he was sick, in violation of his legal obligations under the FARs. After the meeting, the Respondent
deducted the amount it had paid for the June 27th sick leave from a later paycheck. The
Complainant filed an AIR21 complaint.
Protected Activity
The ARB found that substantial evidence supported the ALJ's finding that the Complainant
engaged in protected activity when he complained through the July 9, 2007 union letter and at the
August 27, 2008 meeting that the Respondent's actions pressuring him to fly even when sick
contravened the FARs. The ARB also found that the Complainant's taking himself off the June 27,
2007 flight was protected activity. The ARB found that the Complainant reasonably exercised his
authority under the FARs in deeming himself unfit for flight based on his medical condition.
Contributing Factor and Clear and Convincing Evidence
The ARB found it abundantly clear that the Complainant proved that his protected activities
contributed to the decision to dock his pay. It also found that substantial evidence supported the
ALJ's finding that the Respondent failed to prove by clear and convincing evidence that it would
have deducted the paid sick leave amount from the Complainant's pay absent protected activity.
The ALJ had noted that the Respondent failed to present evidence of a company-wide policy
requiring pilots to present medical documentation to support requests for sick leave, and had found
that the Complainant had not been informed in the earlier counseling session that his future sick
leave requests would require medical documentation and prior approval. The ARB elaborated:
We agree with the ALJ that employers have a compelling business interest in
requiring proof that their employees' absences based on illness are legitimate.
However, without pilots having prior notice of such a requirement -- whether
through company policy requiring such proof or advance notice that such proof will
be required -- such a requirement can prove retaliatory in violation of AIR 21.
Indeed, had Furland had prior notice that medical documentation was required to
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support a request for sick leave, then the contributing factor behind the decision to
dock his pay might have been a failure to supply medical documentation and the
results in this case might be different. However, in light of the ALJ's findings that
Furland had no such prior notice, we find that the ALJ's conclusion that American
Airlines failed to prove by clear and convincing evidence that it would have docked
Furland's pay notwithstanding his protected activity is fully supported by the
substantial evidence of record and in accordance with applicable law.
USDOL/OALJ Reporter at 9-10.
PROTECTED ACTIVITY; REASONABLENESS OF BELIEF OF SAFETY VIOLATION;
FACT THAT EQUIPMENT IS DEFERRED UNDER THE AIRCRAFT'S MINIMUM
EQUIPMENT LIST DOES NOT NEGATE PILOT'S OVERALL RESPONSIBILITY FOR
SAFETY OF FLIGHT OPERATIONS; THAT RESPONSIBILITY INCLUDES THE
SAFETY OF PERSONNEL WHO ASSIST IN DEPLANING
In Sitts v. COMAIR, Inc., ARB No. 09-130, ALJ No. 2008-AIR-7 (ARB May 31, 2011), the
Complainant, a pilot, was terminated from employment with the Respondent after he reported a
malfunctioning passenger power door assist system that he believed affected aircraft safety, and
when the Respondent did not address the safety concern, refused to fly the plane. The inoperable
system appeared on the aircraft's Minimum Equipment List (MEL). An FAA regulation permits
operation of an aircraft under specified conditions with inoperative equipment on the MEL. The
door could be operated manually, but required ground crew who knew how to do safely. Improper
manual operation could result in injury to both the crew and the door.
The ARB first analyzed whether the Complainant reasonably believed that his report of the
inoperable system involved a violation of aircraft safety. The ARB found that FAA regulations
would lead a pilot to reasonably believe that he or she has direct responsibility for determining
whether an aircraft is in safe condition, and the duty to report such concerns. The ARB found
credible testimony in the record that the pilot's obligations over flight safety includes the moments
prior to takeoff, and the moments after landing and deplaning. Thus, the pilot's safety obligations
reasonably extend to the safety of the personnel who assist in deplaning. The ARB noted that the
Complainant's past experiences with inoperable passenger power door assist systems supported a
finding that his safety concerns were genuine. The Respondent contended that the pilot in
command regulations conflict with the MEL regulation and that MEL-deferrals should take
priority. The ARB found that ". . . these two regulations do not necessarily conflict. While the
MEL regulation authorizes pilots to fly aircraft with malfunctioning equipment, there is nothing
in the regulation requiring that pilots do so. Indeed, there is no language in the MEL regulation
mandating that aircraft with MEL-deferred equipment be flown. Rather, the MEL regulation
permits pilots to fly such aircraft by carving an exception to the general rule that "no person may
take off an aircraft with inoperative instruments or equipment installed unless" certain conditions
are met." USDOL/OALJ Reporter at 112 (emphasis as in original) (footnote omitted). The ARB
found that substantial evidence supported the ALJ's finding that the Complainant had an
objectively reasonable belief that flying an aircraft with a malfunctioning passenger power door
assist system, even though MEL-deferred, was unsafe. The ARB also agreed with the ALJ that the
Respondent's efforts to convince the Complainant that the working conditions were safe, were
insufficient to undermine the continuing reasonableness of the Complainant's safety concerns.
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Thus, the Complainant's subsequent decision not to fly the aircraft was reasonable and protected
activity under the AIR21 whistleblower provision.
PROTECTED ACTIVITY; TAPING OF CONVERSATIONS TO SUPPORT AIR21
CLAIM NOT PROTECTED WHERE THEY HAD BECOME INDISCRIMINATE AND
EXCESSIVE
In Hoffman v. NetJets Aviation, Inc., ARB No. 09-021, ALJ No. 2007-AIR-7 (ARB Mar. 24,
2011), the ARB affirmed the ALJ's finding that the Respondent placed the Complainant on paid
administrative leave because it was concerned that the Complainant was recording confidential
information and non-safety related conversations, rather than because of the protected activity of
gathering evidence of air safety violations and discovery for an ongoing AIR21 whistleblower
proceeding. The record established that the Complainant had made over 750 recordings, and the
Respondent had a reasonable belief that some of the recordings did not involve protected activity.
Moreover, there was evidence that the Respondent had been concerned about recordings of
confidential financial information, and had scaled back the amount of confidential information it
disclosed to employees. The Complainant admitted that he had recorded portions of meetings
during which the company's financial status and business strategy were discussed, and the evidence
established that at least 37 recordings were not related to safety concerns.
The ARB emphasized that the lawful taping of conversations to obtain information about safetyrelated conversations is protected activity and should not subject an employee to any adverse
action. Nonetheless it distinguished earlier decisions holding that tape recording to gather evidence
of activities that are protected under the whistleblower statutes is protected, on the ground that the
Complainant in the instant case had engaged in indiscriminate and excessive recording of topics
unrelated to air safety, including the company's business strategy and finances.
One member of the Board dissented on the ground that under the facts of the case, it was impossible
to separate legal from illegal motives. Thus, the dissenter would have proceeded to mixed motive
analysis and found the Respondent liable for illegally placing the Complainant on administrative
leave while the tapes were reviewed by the Employer. Because the Complainant had been paid
while on leave, and had only suffered negligible loss of flight time due to protected activity, the
dissenter would not have awarded damages. The dissenter, however, would have declared the
Respondent's recordation policy, as written, illegal as a means of affirmative relief.
PROTECTED ACTIVITY; LACK OF REASONABLE BELIEF OF AIR SAFETY
VIOLATION ONCE DETERMINATION MADE THAT SUSPICIOUS DEVICE WAS
FAA FLIGHT APPROVED; MERE WORDS DO NOT CREATE VIOLATION OF AIR
SAFETY REGULATIONS WHERE THERE WAS NO VIOLATION IN FACT
In Hindsman v. Delta Air Lines, Inc., ARB No. 09-023, ALJ No. 2008-AIR-13 (ARB June 30,
2010), the Complainant, a lead flight attendant, noticed, before departure of a flight, a suspicious
portable oxygen device. She asked the gate agent and captain about it. Both replied that they
thought that devices such as portable oxygen concentrators were allowed on board. A lead agent
told the Complainant that the Respondent would not delay the flight and that she would have to
decide whether to take the passengers who owned the device, or to deplane them. The Complainant
consulted a manual and determined that the device was approved for flight by the FAA. Upon
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being informed by another flight attendant that the device was FAA-approved, the caption told
that attendant to "shut the door and let's go." The flight left 8 minutes late. Two days later the
Complainant wrote to the Respondent's flight safety director to report the incident, alleging that
the Respondent was going to dispatch the flight before she found out that the device was flight
approved. Several months later the Complainant was discharged on grounds of excessive
absenteeism. The Complainant filed an AIR21 complaint.
The ALJ granted summary decision in favor of the Respondent on the ground that, although the
Complainant had been aggressively carrying out her duties to ensure safety, once she discovered
that the device was flight approved she could not have had a reasonable belief that flying with the
device on board violated air safety regulations, and therefore she had not engaged in protected
activity. The ARB agreed. On appeal the Complainant argued that her memo to the flight safety
director was protected activity. The ARB, however, found that the memo demonstrated that no
violation of air safety regulations occurred, and that according to the Complainant's own account
of the incident , she, the captain, and the flight attendant all knew that the device was acceptable
before the plane took off. The Complainant also argued that there had been a violation because
ground personnel put on-time departure over safety by attempting to dispatch the flight without
investigation of the device. The ARB agreed with the ALJ, however, that "mere words do not
create an FAA violation when the parties' actual conduct does not violate the FAA regulations."
USDOL/OALJ Reporter at 6, quoting ALJ decision at 6. Moreover, while the lead agent did say
that the flight would not be delayed, she also told the Complainant to decide whether the
passengers and the device or to deplane them; the Complainant chose to determine whether the
device was FAA-approved and did so.
PROTECTED ACTIVITY; PILOT'S AUTHORITY TO DECLARE HIMSELF AND HIS
CREW UNFIT TO FLY
In Douglas v. Skywest Airlines, Inc., ARB Nos. 08-070, 08-074, ALJ No. 2006-AIR-14 (ARB
Sept. 30, 2009), the ARB found that substantial evidence supported the ALJ's finding that the
Complainant engaged in protected activity when he declared himself and his crew unfit to fly, and
informed his supervisors. The ALJ found that the Complainant genuinely believed that he would
be violating air safety regulations if he flew, and that belief was objectively reasonable. In regard
to the fitness of the crew, the ALJ pointed to federal regulations conferring final authority and
responsibility on the pilot in control of the aircraft. Although the Employer argued that this ruling
would permit crewmembers to refuse assignments based on the mere speculation that they will not
get sufficient rest and might be unfit later when the flying is to take place, the ARB found that
substantial evidence supported the ALJ's finding that the Complainant was unfit at the time he so
declared. The Complainant had discomfort from a recent medical procedure, and had just endured
an arduous three-hour flight in inclement weather.
PROTECTED ACTIVITY; REQUIREMENT THAT COMPLAINANT REASONABLY
BELIEVE IN EXISTENCE OF VIOLATION RELATING TO AIR CARRIER SAFETY
In order to be protected under the whistleblower provision of AIR21, the complainant must
reasonably believe in the existence of a violation of a regulation, order, or standard relating to air
carrier safety. Once an employee's concerns are addressed and resolved, it is no longer reasonable
for the employee to continue claiming a safety violation. In Malmanger v. Air Evac EMS, Inc.,
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ARB No. 08-071, ALJ No. 2007-AIR-8 (ARB July 2, 2009), the Complainant alleged three
instances of protected activity. The ARB, however, agreed with the ALJ that none of the instances
were based on a "reasonable belief" that the Respondent had violated any provision of Federal law
relating to air safety.
First, the Complainant had sent an e-mail to the Respondent's CEO and Board of Directors alleging
that several years before, a friend of the CEO had taken a joyride in one the Respondent's
helicopters and had returned the helicopter in an unairworthy condition, and that the CEO had
caused pressure to be put on the Complainant - a regional mechanic - to keep his mouth shut about
the incident. The "joyriding" incident had occurred years before, and the e-mail had been sent
shortly before a scheduled evaluation of the Complainant. The Complainant anticipated that the
evaluation process would be used to get rid of him. The ARB found that the e-mail was not
protected activity because when the Complainant sent the e-mail, he knew that his concerns about
the joyriding incident had been resolved. The Complainant himself had signed off on the safety of
the helicopter before it was returned to service, and had never raised concerns relevant to this issue
in the three years that elapsed before he sent his e-mail.
Second, the Complainant did not demonstrate that he reasonably believed that another mechanic
had violated an air safety rule when the two disagreed about which maintenance manual was
applicable to determine whether a tail rotor assembly was out of limits. The matter had been
resolved because the Complainant had ignored the other mechanic's advice and changed the rotor
assembly. Moreover, the Complainant did not pinpoint an air safety violation.
Third, the Complainant did not reasonably believe that a supervisor had violated an air safety rule
when he allowed a base mechanic to keep a helicopter in service pending delivery of a new oil
tank. By the time the Complainant complained to management, he knew that the oil tank had been
replaced, and it was no longer reasonable for the Complainant to continue claiming a safety
violation.
Finally, the Complainant argued that the ALJ improperly relied on the Complainant's motivation
for the complaints (the ALJ finding that the complaints were made to forestall a probable adverse
performance evaluation). The ARB agreed with the proposition that there is no requirement that a
whistleblower's actions be motivated by safety concerns. Nonetheless, the ARB found that the
ALJ's finding that the Complainant "was insincere [was] a finding that [the Complainant] did not
actually believe that violations existed at the time he made his complaints."
PROTECTED ACTIVITY; COMPLAINANT'S LACK OF REASONABLE BELIEF IN
VERACITY OF ALLEGATION
CONTRIBUTING CAUSE; EVIDENCE THAT SOLE MOTIVATING FACTOR WAS
FALSE ALLEGATION MADE BY COMPLAINANT
In Walker v. USDOL, No. 07-72072 (9th Cir. Dec. 4, 2008) (unpublished) (case below ARB No.
05-028, ALJ No. 2003-AIR-17), the Ninth Circuit found that the ARB did not err in affirming the
ALJ's finding that the Complainant had not engaged in protected activity when he called the
company employee hotline to make an allegation against three supervisors where the allegation
was false and the Complainant did not have a reasonable belief in its veracity. While the
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Complainant may have engaged in other protected activity, the ARB did not err in concluding that
substantial evidence supported the ALJ's finding that the falsehood solely motivated the
termination.
PROTECTED ACTIVITY; MUST RELATE TO A REGULATION OR ORDER, MUST
BE SPECIFIC, AND MUST BE REASONABLY BELIEVED BY THE COMPLAINANT
To constitute protected activity under AIR21, a complainant's complaints must relate to a
regulation or order, must be specific, and must be reasonably believed by the complainant.
In Simpson v. United Parcel Service, ARB No. 06-065, ALJ No. 2005-AIR-31 (ARB Mar. 14,
2008), one of the Respondent's aircraft was taken out of service to correct a problem with the cabin
pressurization system. After the Complainant and a co-worker reported that the system had been
fixed, and signed the logbook to confirm the correction, the Complainant was found still working
in the cockpit. She explained that there had been too many deferrals with that aircraft, and that
something was "illegal." According to an acting supervisor, when pressed to explain, the
Complainant did not point to anything in particular but just stated that something didn't feel right.
The ARB held that this was not protected activity because the Complainant (1) was never able to
indicate to any supervisor a concern related to a violation of any safety regulation or order other
than the pressurization system problem which had already been corrected, (2) failed to
communicate any specific safety defect that her employer could take corrective action on, and (3)
did not demonstrate a reasonable belief that a violation of an air safety regulation or order existed
given that she had signed off on the logbook.
PROTECTED ACTIVITY; MERELY PERFORMING SAFETY-RELATED DUTIES,
STANDING ALONE, DOES NOT CONSTITUTE PROTECTED ACTIVITY
A maintenance supervisor's carrying out of his required, safety-related duties -- supervising the
maintenance of the Respondent's aircraft and reporting, repairing, or deferring the repair of any
documented defects -- is not, standing alone, protected activity under AIR21. Rather, to be
protected, the employee must provide information to the employer or to the federal government
that relates FAA orders, regulations or standards, or other provision of law related to air carrier
safety. While laudable, competently and aggressively carrying out duties to ensure safety does not,
standing alone, constitute protected activity. Thus, in Sievers v. Alaska Airlines, Inc., ARB No.
05-109, ALJ No. 2004-AIR-28 (ARB Jan. 30, 2008), the ARB found that the Complainant did not
engage in protected activity regarding incidents in which information was not provided to the
employer or to a Federal entity, but that he did engage in protected activity when he refused to
override a maintenance crew's decision to take a plane out of service because it would have been
"wrong" (i.e., it would have violated the FAA rule at 14 C.F.R. § 135.443).
PROTECTED ACTIVITY; FILING OF DISCOVERY IN A PRIOR WHISTLEBLOWER
PROCEEDING
In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int'l Union (PACE), ARB
No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), the ALJ erred in concluding that serving
a discovery request could not constitute protected activity. The ARB held that "it is possible that
serving a discovery request potentially could constitute protected activity if the request was part
of a whistleblower complaint." Slip op. at 10 (footnote omitted).
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PROTECTED ACTIVITY; UNDER AIR21, THE PROVISION OF INFORMATION
ABOUT SAFETY IS PROTECTED ONLY WHEN THE COMPLAINANT ACTUALLY
BELIEVES IN THE EXISTENCE OF A VIOLATION
In Walker v. American Airlines, Inc., ARB No. 05-028, ALJ No. 2003-AIR-17 (ARB Mar. 30,
2007), the Complainant, a level 4 maintenance supervisor, made a call to the Respondent's hotline
primarily complaining about a change in policy regarding how overtime work would be credited,
but also including a statement charging that several higher level supervisors had been intimidating
the Complainant into signing off on tasks that had not been completed or were not safe just so they
could get the plane out. The Complainant later signed a statement retracting the charge that the
supervisors had been intimidating him. Following a hearing, the ALJ found that the Complainant
had not had a good faith and reasonable basis for making the allegation about supervisor pressure
to sign off on items. The ALJ's finding was largely based on credibility determinations, which the
Complainant challenged on appeal, but which the ARB found were supported by substantial
evidence. The ARB also affirmed the ALJ's finding that the hotline call was not protected activity
because it was not made in good faith. Assuming for purposes of argument that the hotline call
implicated safety, the ARB held that the provision of information is protected activity only when
the complainant actually believes in the existence of a violation.
PROTECTED ACTIVITY; COMPLAINANT'S REASONABLE BELIEF THAT FLYING
WITH A FATIGUED CREW WOULD VIOLATE A FEDERAL AVIATION
REGULATION
In Rooks v. Planet Airways, Inc., ARB No. 04-092, ALJ No. 2003-AIR-35 (ARB June 28, 2006),
the ARB affirmed the ALJ's finding that the Complainant engaged in protected activity when he
refused to complete a delayed flight because the flight crew was fatigued, and the Complainant
believed that flying with a fatigued crew was a hazard covered by the federal aviation regulation
("FAR") at 14 C.F.R. § 121.553. The ARB noted that the Complainant did not have to prove that
flying with fatigued crew members actually violated the FARs, as long as his belief that it did was
reasonable.
PROTECTED ACTIVITY; GENUINE BELIEF IN VIOLATION OF FEDERAL AIR
CARRIER SAFETY LAW; OBJECTIVE REASONABLENESS OF BELIEF;
SPECIFICITY OF CONCERN
In Rougas v. Southeast Airlines, Inc., ARB No. 04-139, ALJ No. 2004-AIR-3 (ARB July 31,
2006), the ARB remanded to the ALJ for further fact finding where the ALJ had overlooked
several circumstances alleged by the Complainant in his post-hearing brief to constitute protected
activity. The ARB instructed that the ALJ only needed to look at the activities that the Complainant
raised in the post-hearing brief because arguments made for the first time on appeal are waived.
The ARB also instructed the ALJ that the governing law for determining whether an activity is
protected under AIR21 requires findings on whether:
•
•
the complainant genuinely believed that there was or would be a violation or
alleged violation of an FAA order, regulation or standard, or a Federal law
relating to air carrier safety
the concern was objectively reasonable in the circumstances, and
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•
the complainant expressed his concern "in a manner that was 'specific' with
respect to the 'practice, condition, directive or event' giving rise to the concern."
Slip op. at 14.
PROTECTED ACTIVITY;
DISCRIMINATION
PRETEXTUAL
REASON
AS
EVIDENCE
OF
In Lebo v. Piedmont-Hawthorne, ARB No. 04-020, ALJ No. 2003-AIR-25 (ARB Aug. 30, 2005),
where the evidence established that the Respondent's stated reason for discharging the
Complainant -- that it discovered that the Complainant's work was much worse that it first
suspected when it suspended him -- was pretext, the ARB found such pretext was evidence of
discrimination.
PROTECTED ACTIVITY; CARRYING OUT AGGRESSIVE AND COMPETENT
INSPECTIONS REQUIRED OF A MAINTENANCE SUPERVISOR; SUCH ACTIVITIES
DO NOT REQUIRE A FORMAL COMPLAINT TO THE FAA OR A COMPANY HOTLINE TO BE PROTECTED
In Sievers v. Alaska Airlines Inc., 2004-AIR-28 (ALJ May 23, 2005), the ALJ found that the
Complainant, an aviation line maintenance supervisor, engaged in protected activity when he
carried out his required, safety-related duties competently and aggressively, even though some of
the defects identified by the Complainant and his staff did not implicate serious safety
concerns. Mackowiak v. Univ. Nuclear Sys. Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); Kinser v.
Mesaba Aviation, Inc., 2003-AIR-7 (ALJ Feb. 9, 2004), at 23; Szpyrka v. American Eagle Airlines,
Inc., 2002-AIR-9 (ALJ July 8, 2002). The ALJ rejected the Respondent's argument that inspection
duties were not protected activity because they did not involve a complaint to the FAA or the
Respondent's safety "hot line." The ALJ wrote: "For a finding of protected activity, it is sufficient
that Complainant carried out his required, safety-related duties: supervising the maintenance of
Respondent's aircraft and reporting, repairing, or deferring the repair of any documented defects."
Slip op. at 24. The ALJ observed that the Complainant's aggressive performance of his duties was
not conducted out of malice, but in an atmosphere of concern over the appropriate balance between
safety and economics given a tragic crash of one of the Respondent's flights in January of 2000.
The crash was linked to a maintenance issue. Moreover, the Respondent had commissioned a
report on its safety procedures in the wake of that crash; the report warned care must be take not
to permit economic pressures on the aviation industry to allow a "culture creep" away from an
emphasis on safety. These circumstances were well known to the Complainant and his staff.
PROTECTED ACTIVITY; REPORT OF BELIEF OF EXPOSURE TO PESTICIDE
SPRAYING MANDATED BY FOREIGN GOVERNMENTS, BUT NOT SUBJECT TO
ANY LAW OF THE U.S., IS NOT PROTECTED ACTIVITY WITHIN THE MEANING
OF THE WHISTLEBLOWER PROVISION OF AIR21
In Mehan v. Delta Air Lines, ARB No. 03-070. ALJ No. 2003-AIR-4 (ARB Feb. 24, 2005), the
ARB granted summary judgment in favor of the Respondent because the Complainant had failed
to articulate a viable factual basis for her claim that she had engaged in protected activity.
Specifically, the Board wrote: "Reporting to Delta her belief that she had been injured by pesticide
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spraying that was mandated by foreign governments, but that was not subject to any law of the
United States, does not fall within the plain language of § 42121 -- providing information or filing
a proceeding relating to a violation of Federal air carrier safety laws."
PROTECTED ACTIVITY; COMPLAINTS ABOUT CALL SIGNS AND COMMERCIAL
ACTIVITIES
In Barker v. Ameristar Airlines, Inc., 2004-AIR-12 (ALJ Oct. 7, 2004), the ALJ found that the
Complainant's complaints about the Respondent's use of an affiliated company's call signs and its
alleged commercial transactions outside the scope of its Part 125 certification were not protected
activity because neither allegation related to air carrier safety.
PROTECTED ACTIVITY; PARTICIPATION IN INVESTIGATION OF ACTIVITY
REASONABLY PERCEIVED TO BE IN VIOLATION OF FAA REGULATIONS
In Hendrix v. American Airlines, Inc., 2004-AIR-10, 2004-SOX-23 (ALJ Dec. 9, 2003), the ALJ
found that the Complainant engaged in protected activity under the AIR21 when he participated
in the investigation of an employee who was creating art objects out of company material where
the Complainant had the reasonable belief that FAA regulations on the disposal of scrap aircraft
parts were not being following. There was no dispute that the manager who initiated the
investigation reported specific violations. Thus, even if the Complainant himself did not articulate
specific violations, his conduct was protected activity because he was assisting that manager in the
investigation, and the AIR21 protects employees who provide or "cause to be provided"
information relating to the relevant violations.
PROTECTED ACTIVITY;
REASONABLE BASIS
HOTLINE
COMPLAINT
MADE
WITHOUT
A
In Walker v. American Airlines, 2003-AIR-17 (ALJ Nov. 16, 2004), the ALJ found that the
Complainant was not engaged in protected activity when he made a call to the company hotline.
The ALJ found that the evidence showed that although the Complainant might have had a good
faith belief and reasonable basis for making a hotline complaint about understaffing and deadline
pressures, the complaint he actually lodged -- alleging that managers were intimidating him into
signing off on tasks that they knew had not been completed or were not safe just so they could get
planes off the ground -- was not grounded in good faith or a reasonable belief. The ALJ recognized
that the distinction may not seem great, but it was the difference between accusing managers of
unknowingly causing safety problems by pushing too hard and intentionally disregarding known
safety problems.
PROTECTED ACTIVITY; THREE ELEMENTS; REGISTERING OF COMPLAINT
WITH LOCAL AUTHORITIES FOLLOWING CONSULTATION WITH FEDERAL
AUTHORITY
In Svendsen v. Air Methods, Inc., ARB No. 03-074, 2002-AIR-16 (ARB Aug. 26, 2004), the ARB
adopted the ALJ's finding that the Complainant was engaged in protected activity when he reported
a dust cloud near the airport at which he was assigned for air ambulance flights. The dust cloud
had been produced by a car race organized by a local Indian tribe, and the Complainant feared that
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it reduced visibility, especially for incoming flights. In the ALJ's decision, he found that "a
protected activity under AIR 21 has three elements. First, the complaint must either: a) involve a
purported violation of an FAA regulation, standard or order relating to air carrier safety, or any
other provision of Federal law relating to air carrier safety; or, b) at least "touch on" air carrier
safety. Second, the complainant's belief about the purported violation must be objectively
reasonable. Third, the complaint must be made either to the complainant's employer or the Federal
Government." Svendsen v. Air Methods, Inc., 2002-AIR-16 (ALJ Mar. 3, 2003), slip op. at 48.
The ALJ found that the complaint touched on air carrier safety and represented an objectively
reasonable flight safety hazard. Id. at 49. The ALJ noted that the Complainant registered his
complaint with the local tribe police and government, which were neither the Federal government
nor the Complainant's employer. The Complainant had done so, however, after first reporting the
visibility issue to a Federal flight service station, which concluded that it did not have the ability
to act on the complaint and directed the Complainant to local authorities.
PROTECTED ACTIVITY; ALLEGED
DEFINITIVELY AND SPECIFICALLY
ACT
MUST
IMPLICATE
SAFETY
In Fader v. Transportation Security Administration, 2004-AIR-27 (ALJ June 17, 2004), the
Complainant's AIR21 complaint stated only that he had reported violations of the Privacy Act,
abuses of the junior workforce, nepotism and fraud. The ALJ, citing caselaw to the effect that
protected activity under AIR21 must raise safety definitively and specifically, granted the
Respondent's motion to dismiss for failure to state claim upon which relief can be granted.
PROTECTED ACTIVITY; PENDING FAA REGULATION
In Weil v. Planet Airways, Inc., 2003-AIR-18 (ALJ Mar. 16, 2004), the ALJ found that the
Complainant engaged in protected activity when he forcefully advocated for implementation of
the Advanced Passenger Information System (APIS) imposed after September 11 to obtain and
monitor information about people entering the United States. The ALJ found that a protected
activity under AIR21 has three components: "First, the report or action must involve a purported
violation of a Federal law or FAA regulation, standard or order relating to air carrier safety and at
least 'touch on' air carrier safety. Second, the complainant's belief about the purported violation
must be objectively reasonable. Third, the complainant must communicate his safety concern to
either his employer or the Federal Government (49 U.S.C. § 42121 (a) (1))."
At the time the Complainant engaged in his advocacy on APIS, the FAA had only announced the
intention to implement such a system. The ALJ, however, found that an APIS rule was "imminent"
and that given that whistleblower laws are to be given a broad interpretation, found that the
Complainant met the first component of protected activity under AIR21. The ALJ found that the
Complainant had a reasonable concern that the Respondent would not meet the APIS compliance
deadline, and that he had clearly communicated that concern to Respondent's management. The
Complainant, however, was ultimately found by the ALJ not to be entitled to relief under the
AIR21 whistleblower provision because he was unable to prove that his protected activity
contributed to his termination from employment.
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PROTECTED ACTIVITY; MUST BE SPECIFIC IN RELATION TO GIVEN PRACTICE,
CONDITION, DIRECTIVE OR EVENT; COMPLAINANT MUST REASONABLY
BELIEVE IN EXISTENCE OF VIOLATION
In Peck v. Safe Air International, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3 (ARB Jan. 30,
2004), the ARB described protected activity under the whistleblower provision of AIR21 as
follows:
Air carriers are prohibited under AIR21 section 519 from discharging or otherwise
discriminating against any employee because the employee, inter alia, provided the
employer or Federal Government with information "relating to any violation or
alleged violation of any order, regulation, or standard of the [FAA] or any other
provision of Federal law relating to air carrier safety . . . ." 49 U.S.C.A. § 42121(a).
While they may be oral or in writing, protected complaints must be specific in
relation to a given practice, condition, directive or event. A complainant reasonably
must believe in the existence of a violation. Clean Harbors Envtl. Serv. v. Herman,
146 F.3d 12, 19-21 (1st Cir. 1998); Leach v. Basin 3Western, Inc., ALJ No. 02STA-5, ARB No. 02-089, slip op. at 3 (ARB July 21, 2003).
PROTECTED ACTIVITY; PERFORMING DUTIES AS A QUALITY CONTROL
INSPECTOR INHERENTLY INVOLVE PROTECTED ACTIVITY
In Kinser v. Mesaba Aviation, Inc., 2003-AIR-7 (ALJ Feb. 9, 2004), the Respondent maintained
that the Complainant's reporting of damaged and missing bin latch shrouds did not constitute
protected activity because such did not implicate safety. The ALJ agreed that the record tended to
show that broken or missing shrouds did not implicate a serious safety concern, but nonetheless
found the Complainant, as a quality control inspector, was engaged in protected activity when he
reported the damaged or missing bin latch shrouds, citing Mackowiak v. University Nuclear
Systems, Inc., 735 F.2d 1159 (9th Cir. 1984) and Richter v. Baldwin Associates, 1984-ERA-9
(Sec'y Mar. 12, 1986), and FAA regulations imposing a duty on inspectors to report such
discrepancies.
PROTECTED ACTIVITY; WORK REFUSAL; REASONABLE BELIEF THAT WORK
ASKED TO BE PERFORMED WOULD VIOLATE FAA REGULATIONS OR QUALITY
CONTROL PROCEDURES
In Kinser v. Mesaba Aviation, Inc., 2003-AIR-7 (ALJ Feb. 9, 2004), the Complainant alleged that
his refusals to sign off on several C-checks were protected activity. The ALJ observed that AIR21
does not specifically list a refusal as protected activity, whereas section 5851 of the ERA does.
The ALJ found, however, that caselaw in existence prior to the amendment of the ERA to expressly
include work refusals as protected activity nonetheless categorized refusals as such. Durham v.
Georgia Power Co., 1986-ERA-9 (ALJ Oct. 24, 1986). Thus, the ALJ found that if the
Complainant's "refusal was based on a reasonable belief that he was being asked to violate FAA
regulations and quality control procedures by signing off on the C-check, his actions could
represent instituting proceedings under AIR21." The ALJ, however, ultimately found that the
Complainant did not have a reasonable belief that signing off on the checks would violate the law,
and therefore there refusals were not protected activity.
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PROTECTED ACTIVITY; FILING A WHISTLEBLOWER COMPLAINT
Filing a complaint or charge of employer retaliation because of safety and quality control activities
is protected activity under 49 U.S.C. § 42121(a)(1)-(4) (2002). Kinser v. Mesaba Aviation, Inc.,
2003-AIR-7 (ALJ Feb. 9, 2004).
PROTECTED ACTIVITY; OBJECTIVELY REASONABLE BELIEF OF VIOLATION
OF FAA REGULATION OR OTHER AVIATION LAW
In Parshley v. America West Airlines, 2002-AIR-10 (ALJ Aug. 5, 2002), the ALJ reviewed the
principles developed in environmental whistleblower cases, and found that a protected activity
under AIR 21 similarly has two elements: (1) the complaint must involve a purported violation of
an FAA regulation, standard or order relating to air carrier safety, or any other provision of Federal
law relating to air carrier safety; (2) the complainant's belief about the purported violation must be
objectively reasonable.
The ALJ noted that there is a caselaw mandate to broadly interpret the meaning of protected
activity. The ALJ nonetheless concluded that Complainant's reporting to her supervisor that she
had received a report that an individual had made improper computer entries indicating the
completion of an inspection step for 800 incoming aircraft parts, without verifying completion of
an inspection for documenting serviceability, was not protected activity. The ALJ found that this
was not protected activity because Complainant had failed to identify any FAA regulation or
aviation statute that requires such a computer inventory system. The ALJ was unwilling to drawn
an inference that such a process was required for FAA mandated inspections and certifications.
The ALJ, however, did find that Complainant engaged in protected activity when she reported to
her supervisor that some aircraft parts in the warehouse did not have an FAA- required serviceable
tag, based on credible testimony that such tags were required by the FAA.
PROTECTED ACTIVITY; MAINTAINING AIRCRAFT MAINTENANCE LOGS
In Szpyrka v. American Eagle Airlines, Inc., 2002-AIR-9 (ALJ July 8, 2002), Complainant
alleged that Respondent reprimanded and suspended him in retaliation for recording safety-related
mechanical deficiencies in aircraft maintenance logs causing the removal of aircraft from
passenger transport service and necessitating costly repairs. Respondent alleged that Complainant
was disciplined for purposely waiting to make those records in locations where Respondent would
have to pay a contractor rather than Respondent's own mechanics to make any needed repairs, at
a greater cost to Respondent, for the purpose of voicing his dislike of the company.
Respondent filed a motion for summary decision based, inter alia, on the argument that mere entry
of observations in aircraft maintenance logs does not, in and of itself, constitute either violations
of federal regulations or a "proceeding" within the meaning of AIR21. The ALJ declined to grant
summary decision on this basis, finding:
To be sure, it is not the existence of the pre-flight discrepancy which constitutes a
violation, and a crew member's notation in a maintenance log is not a proceedings.
Yet, an attempt to retaliate for, interfere with, or improperly influence the
performance of a duty required by the FAR may trigger the protections of AIR 21.
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Consequently, if an airline seeks retribution against an aircrew member for
performing required safety-related missions or if it engages in harassment,
intimidation, or coercion in an attempt to interfere with an aircrew member's duty
in the future, honestly and objectively, to carry out pre-flight inspection and
reporting obligations, the airline's action may implicate the broad, remedial
protections afforded by AIR 21. Since the circumstances which may constitute such
interference are fact-specific, summary decision would be inappropriate.
PROTECTED ACTIVITY; MAINTAINING AIRCRAFT MAINTENANCE LOGS;
OBJECTIVELY REASONABLE PERCEPTION STANDARD
In Davis v. United Airlines, Inc., 2001-AIR-5 (ALJ July 25, 2002), the ALJ applied ERA
whistleblower caselaw to find that a report of any objectively reasonable perceived violation of
federal laws or standards relating to air carrier safety is protected activity, even if the allegation is
not ultimately substantiated.
PROTECTED ACTIVITY; COMPLAINANT'S MOTIVE MAY INFLUENCE WHETHER
CONDUCT WAS PROTECTED
In Szpyrka v. American Eagle Airlines, Inc., 2002-AIR-9 (ALJ July 8, 2002), Complainant
alleged that Respondent reprimanded and suspended him in retaliation for recording safety-related
mechanical deficiencies in aircraft maintenance logs causing the removal of aircraft from
passenger transport service and necessitating costly repairs. Respondent alleged that Complainant
was disciplined for purposely waiting to make those records in locations where Respondent would
have to pay a contractor rather than Respondent's own mechanics to make any needed repairs, at
a greater cost to Respondent, for the purpose of voicing his dislike of the company.
Complainant filed a motion for summary decision, arguing that, even if he acted maliciously,
AIR21 protects behavior (the pre-flight inspection) that was a contributing factor in the
unfavorable personnel action. The ALJ declined to grant summary decision, finding that although
AIR21 might impose a lightened burden in establishing a prima facie case, the caselaw suggests
that the circumstances of the case necessitate a fact-dependent inquiry focusing on the true
impulses motivating the employee's actions, citing Zurenda v. J&K Plumbing & Heating Co. Inc.,
1997-STA-16 (ARB June 12, 1998).
PROTECTED ACTIVITY; COMPLAINTS MADE TO EMPLOYEES WITHOUT
CONTROL OVER COMPLAINANT'S EMPLOYMENT; COMPLAINTS TAKEN TO
THE PILOT DESPITE AINTENANCE SUPERVISOR'S CONCLUSION THAT THE
AIRCRAFT WAS FLIGHT WORTHY
In Davis v. United Airlines, Inc., 2001-AIR-5 (ALJ July 25, 2002), the ALJ rejected Respondent's
contention that complaints which touch on aircraft safety made internally to those without control
over the complainant's employment are not protected activities. The ALJ held that the established
law is that even complaints to co-workers as well as "informal" complaints to supervisors can be
protected activities and that the form of the "complaint" is not critical. The ALJ held that at the
point where on-duty maintenance supervisors and the pilots were informed by Complainant of
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potential safety defects, the reports became protected activity -- the ALJ finding that both the
supervisors and pilots were in a position to act on safety related complaints.
The ALJ also held that "[e]ven though United might believe supervisors may be better at balancing
the potential for delay versus a repair requirement, the broad purpose of the Act would best be
served by protecting mechanics, particul
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