U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 20210

In the Matter of:

MARK ESTABROOK,

COMPLAINANT,

v.

ARB CASE NO.

2017-0047

ALJ CASE NO.

2014-AIR-00022

DATE: August 8, 2019

FEDERAL EXPRESS CORPORATION,

RESPONDENT.

Appearances:

For the Complainant:

Lee Seham, Esq.; Seham, Seham, Meltz & Petersen, LLP; White Plains, New

York

For the Respondent:

Daniel Riederer, Esq., and Phillip Tadlock, Esq., Federal Express

Corporation; Memphis, Tennessee

Before: William T. Barto, Chief Administrative Appeals Judge; James A. Haynes

and Daniel T. Gresh, Administrative Appeals Judges.

FINAL DECISION AND ORDER

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PER CURIAM. This case arises under the employee whistleblower protection

provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st

Century (AIR 21), 49 U.S.C. § 42121 (2000); 29 C.F.R. Part 1979 (2014).

Complainant Mark Estabrook filed a complaint alleging that Respondent Federal

Express Corporation (FedEx) retaliated against him in violation of AIR 21’s

whistleblower protection provisions for raising air transportation safety concerns. A

Department of Labor Administrative Law Judge (ALJ) concluded on May 16, 2017,

that FedEx did not violate the Act. We affirm.

BACKGROUND

Mark Estabrook is a pilot at FedEx. At the time in question, Captain Rob

Fisher, the Assistant Chief Pilot, supervised Estabrook. Captain William McDonald,

the Managing Director of Flight Operations, was Fisher’s supervisor. Todd Ondra

was FedEx’s Managing Director of Aviation and Regulatory Security and Rob Tice

was a FedEx Labor Relations Attorney.

1. Flight from Laredo, Texas, to Memphis, Tennessee

On April 10, 2013, Estabrook was scheduled to fly from Laredo, Texas, to

Memphis, Tennessee. While still at a Laredo hotel, Estabrook learned of a line of

thunderstorms between the two locations.

From his hotel, Estabrook watched the weather and called the FedEx Global

Operations Center (GOC) dispatcher, who recommended another route around the

storm. According to Estabrook, after further discussion, the consensus reached

between the two was that Estabrook was not going to fly according to the original

flight time, but was to wait the storm out. Decision and Order Denying Relief (D. &

O.) at 4. Estabrook understood this to mean that he was authorized to stay at the

hotel. 1

The Dispatch Duty Officer received a call from FedEx personnel at the

Laredo airport that a FedEx flight crew assigned to a flight scheduled to depart

soon was not there. The Dispatch Duty Officer called Estabrook, the pilot assigned

1

See D. & O. at 20; Hearing Transcript (Tr.) at 350.

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to the flight, and discussed the weather and the flight. During the evening,

Estabrook spoke with the Dispatch Duty Officer on the phone multiple times.

Some of their conversations were recorded and some were not. According to

Estabrook, he felt “pilot pushed” to fly through the storm to Memphis. The Dispatch

Duty Officer denies pushing Estabrook to fly despite the weather, but he did tell

Estabrook that he needed to be at the Laredo airport and not at his hotel. D. & O. at

17.

Later, Memphis Air Traffic Control placed a weather hold on Estabrook’s

flight, and it could not depart Laredo until the hold was lifted later that evening. D.

& O. at 5.

On April 10, 2013, the Dispatch Duty Officer sent an e-mail to both Captain

Fisher, Estabrook’s supervisor, and Chief Pilot McDonald, Fisher’s supervisor,

detailing the events of the prior evening. The e-mail accused Estabrook of

unilaterally delaying a flight without reaching an agreement with the GOC

dispatcher. Respondent’s Exhibit (RX) 8.

On April 23, 2013, Estabrook was asked to attend a”19D” investigation

interview meeting concerning his late arrival at the Laredo airport for the

scheduled April 10th flight. D. & O. at 6. At FedEx, a “19D” investigation hearing

differs from a “19E” investigation hearing in that the latter is a disciplinary

hearing, whereas the former merely is to obtain the subject of the hearing’s side of

the story.

After being notified of the meeting, Estabrook filed an AIR 21 complaint with

the Occupational Safety and Health Administration (OSHA). On May 1, 2013,

Estabrook attended the 19D meeting with Captain Fisher. After listening to the

three audio recordings of Estabrook’s phone conversations with dispatch, Fisher

believed that Estabrook may have had a good faith belief that he had permission to

stay at his hotel. D. & O. at 20. Fisher informed Estabrook that FedEx was not

going to take disciplinary action against him. Because no disciplinary action

occurred, Estabrook withdrew his OSHA complaint. Complainant’s Exhibit (CX) 9.

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2. August 4 E-Mail and Estabrook’s NOQ Status

After reading on the internet about terrorist activity involving cargo airlines,

including FedEx, Estabrook became concerned with the misuse of FedEx’s tracking

data that is available on internet websites. D. & O. at 7. Estabrook was concerned

that terrorist organizations might use tracking data that couriers, including FedEx,

provided on the internet to coordinate an explosive detonation on a FedEx airplane

over a populated area. 2 Estabrook sent an e-mail to Captain McDonald asking him

to have FedEx CEO Fred Smith call him about “something related to 9-11.”

Estabrook’s e-mail stated:

I need to talk to Fred. It has nothing to do with Flight Ops or you. It

deals with something related to 9-11. I did my best to protect the

company and reported as much as I could through [FedEx Corporate

Security] when I was the Security Chairman at ALPA. Ask Fred to call

me on my cell but realize I turn it off when I sleep. I am about to close

my eyes and call it a day.

D. & O. at 31-32; RX-13.

On August 5, 2013, Estabrook received an e-mail from Captain McDonald

putting him on Not Operationally Qualified (NOQ) status in order to facilitate

scheduling a meeting regarding Estabrook’s concerns. D. & O. at 7, 23, 32. FedEx

claims that the NOQ is used for several purposes, from scheduling to disciplinary

reasons. When there are security or fitness-for-duty concerns present, the pilot will

not have jumpseat privileges as a cautionary measure. D. & O. at 19, 21, 23.

FedEx publishes general package tracking data on its internet website. But the

tracking data does not list specific vehicles or planes. FedEx and other carriers send flight

information to the Federal Aviation Administration which is not made public. D. & O. at 67, 19, 25.

2

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3. August 9 Meeting, 15D Examination, and Renewed NOQ Status

Captain McDonald instructed Estabrook to attend a meeting on August 9,

2013. Before the meeting, Captain Fisher, Captain McDonald, Ondra, the Managing

Director of Aviation and Regulatory Security, and FedEx Labor Relations Attorney

Tice met to discuss online postings on a pilot group internet forum from a person

calling himself “Mayday Mark.” CX-21. “Mayday Mark’s July 28-August 5, 2013

discussion thread covered a sleep survey, pilot fatigue, and airline management.

Because some of the posts specifically mentioned FedEx management, Captain

McDonald instructed Tice to ask Estabrook if he were “Mayday Mark.”

Captain Fisher, Ondra, and Tice met with Estabrook on August 9, 2013, but

Captain McDonald did not attend. During the meeting, Estabrook discussed his

security concerns with tracking data being available to the public. Estabrook

explained that he e-mailed Captain McDonald and wanted him to bring the matter

up the chain of command to Fred Smith, FedEx’s CEO. Estabrook recommended

that FedEx stop publishing tracking information. Previously in 2001 and 2002,

Estabrook and others had contacted FedEx’s Vice President of Corporate Security

concerning posting tracking information on the internet. But FedEx indicated that

the Federal Aviation Administration (FAA) took no action on Estabrook’s concerns.

During the August 9 meeting, Estabrook mentioned a rumor that Auburn

Calloway, a former FedEx pilot, had converted to Islam and might be

communicating with Al Qaeda. D. & O. at 26. Calloway had attempted to hijack a

FedEx flight in 1994 and had been imprisoned since then. Estabrook had known

Calloway personally because they were hired together and had been study partners.

At the meeting, Estabrook suggested that FedEx work with the Justice Department

to bug Calloway’s prison cell.

During the meeting, Tice asked Estabrook whether he was “Mayday Mark”

and Estabrook denied it. Moreover, Estabrook displayed his flight service

information, which did not match that of “Mayday Mark” as indicated on the pilot’s

forum. Ondra left the meeting early before the discussion on “Mayday Mark.” D. &

O. at 23.

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At the close of the meeting, Captain Fisher took Estabrook off of his NOQ

status. D. & O. at 19. But later that day, Captain Fisher placed Estabrook back on

NOQ status at the recommendation of Ondra and McDonald. Ondra expressed

concern with Estabrook’s behavior. Ondra believed it odd that Estabrook would

contact his manager and ask to speak to the CEO of FedEx when there were several

other means available to report suspicious activity. D. & O. at 25. Ondra was

concerned about Estabrook’s mental health and recommended further evaluation of

Estabrook. At the behest of Ondra, Tice passed Ondra’s recommendation to Fisher

who, after consulting with McDonald, informed Estabrook on August 9 that an

aeromedical advisor would conduct a “15D” evaluation of him. D. & O. at 19-20. On

August 13, Estabrook’s attorney sent a demand letter to FedEx requesting that

FedEx retract its directive that Estabrook receive a15D evaluation. On August 16,

Fisher issued a formal letter to Estabrook directing him to go to the aeromedical

advisor for the evaluation. D. & O. at 21, 32, 57.

As part of his 15D evaluation, Estabrook was sent to three doctors. One

doctor recommended counseling and another doctor found that Estabrook was fit for

duty. The third doctor, a “tie breaker,” also concluded that Estabrook was fit to fly.

With the positive evaluation, the aeromedical advisor informed Estabrook that he

would be returned to flight duty. D. & O. at 13. Estabrook returned to flight duty

status with no change in pay or job status. But Estabrook claims that he also had to

then participate in some required training to recertify for full flight duty status

because his NOQ status extended past the dates for his annual training

requirements. D. & O. at 8.

On October 3, 2013, Estabrook filed a second complaint with OSHA, which

dismissed the complaint on July 15, 2014. Estabrook filed objections with the Office

of Administrative Law Judges. The ALJ assigned to the case held a hearing and

denied Estabrook’s complaint on May 16, 2017.

JURISDICTION AND STANDARD OF REVIEW

The ARB has jurisdiction to review the ALJ’s AIR 21 decision under

Secretary’s Order No. 01-2019 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 84 Fed. Reg. 13,072 (Apr. 3,

2019); 29 C.F.R. § 1979.110. The ARB reviews the ALJ’s factual determinations

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under the substantial evidence standard and conclusions of law de novo. 29 C.F.R. §

1979.110(b); Berroa v. Spectrum Health Hosps., ARB No. 15-061, ALJ No. 2013AIR-021, slip op. at 2 (ARB Mar. 9, 2017).

DISCUSSION

To prevail on his whistleblower complaint, Estabrook must prove by a

preponderance of the evidence that (1) he engaged in activity protected under AIR

21; (2) that an unfavorable personnel action was taken against him; and (3) that the

protected activity was a contributing factor in the unfavorable personnel action

taken against him. 49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R. § 1979.109(a). If the

complainant proves that protected activity was a contributing factor in the

unfavorable personnel action, the respondent may nevertheless avoid liability if it

proves by “clear and convincing evidence” that it would have taken the same

unfavorable personnel or adverse action in the absence of the protected activity. 49

U.S.C. § 42121(b)(2)(B)(iv); 29 C.F.R. § 1979.109(a).

1. Protected Activity

Protected activity under AIR 21 has two elements: 3 (1) the information that

the complainant provides must involve a purported violation of a regulation, order,

Under AIR 21, a complainant engages in protected activity when he or she does one

or more of the following actions:

3

(1) provided, caused to be provided, or is about to provide (with

any knowledge of the employer) or cause to be provided to the

employer or Federal Government information relating to any

violation or alleged violation of any order, regulation, or

standard of the Federal Aviation Administration or any other

provision of Federal law relating to air carrier safety under this

subtitle or any other law of the United States;

(2) has filed, caused to be filed, or is about to file (with any

knowledge of the employer) or cause to be filed a proceeding

relating to any violation or alleged violation of any order,

regulation, or standard of the Federal Aviation Administration

or any other provision of Federal law relating to air carrier

safety under this subtitle or any other law of the United

States;

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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. “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-AIR-013,

slip op. at 5 (ARB June 30, 2010).

A. Estabrook’s Refusal to Fly on April 10 in Bad Weather is Protected Activity.

Estabrook claims that the Flight Operations Manual provides that flying

through thunderstorms constitutes a violation of an FAA standard. The FAA

recommends maintaining a 20-mile buffer between a storm and the aircraft. In a

preliminary partial summary judgment order, the ALJ found that Estabrook’s

refusal to fly out of Laredo constituted protected activity and that finding was

incorporated into his Decision and Order. D. & O. at 46, 51. As FedEx has not

challenged the ALJ’s findings that Estabrook’s refusal to fly was protected activity,

it is affirmed. 4

B. Estabrook’s Complaint filed with OSHA in April 2013 is Protected Activity.

The filing of complaints with OSHA claiming retaliation itself constitutes

protected activity. 49 U.S.C. § 42121(a)(4) (protecting complainants who participate

in a proceeding under the Act); 29 C.F.R. § 1979.102(b)(2).

(3) testified or is about to testify in such a proceeding; or

(4) assisted or participated or is about to assist or participate in

such a proceeding.

49 U.S.C. § 42121(a); 29 C.F.R. § 1979.102.

Leiva v. Union Pacific R.R. Co., Inc., ARB Nos. 14-016, -017; ALJ No. 2013-FRS-019,

slip op. at 8 (ARB May 29, 2015).

4

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C. Estabrook’s discussion of his Air Carrier Security Concerns during an August

9 Meeting Regarding Publishing Tracking Information is not Protected Activity.

Estabrook also asserts that his expressed concerns about air carrier security

also constitute protected activity although AIR 21’s whistleblower provisions do not

specifically include that providing information about “security” as a protected

activity. The ALJ analyzed AIR 21’s broader statutory and regulatory framework to

conclude that providing information about “air carrier safety” includes expressing

concerns about security. D. & O. at 48-49. To summarize, AIR 21 protects an

employee who has a reasonable belief that a violation of an FAA standard or

regulation or any other federal law related to air carrier safety has occurred.

Significantly, AIR 21’s implementing regulations extend protection to an employee

who reasonably believes a violation of air carrier statutes under subtitle VII of title

49 has occurred. See 29 C.F.R. § 1979.102(b)(1) (“or any other provision of Federal

law relating to air carrier safety under subtitle VII of title 49 of the United States

Code or under any other law of the United States”). Among the various air carrier

safety statutes under subtitle VII of Title 49 is a “security” subpart that covers

screening, inspecting, and ensuring the security of cargo. Because the incorporated

statutory air carrier safety laws are broad and “safety” encompasses some measure

of “security,” the ALJ correctly concluded that “security” is covered as part of air

carrier safety protected under the Act.

Although security concerns can be covered under AIR 21, FedEx argues that

the security concerns Estabrook expressed on August 9 are not protected under AIR

21 because publishing tracking data is not a violation of FAA standards or any

federal law related to air carrier safety or security. The ALJ agreed and found that

the security concerns Estabrook expressed during the meeting were not protected

activity. Specifically, Estabrook’s concerns were not related to a reasonable belief of

a violation of federal laws related to air carrier safety or security. D. & O. at 49-50.

Publishing tracking data is not a violation of regulations covering incendiary or

explosive devices. Furthermore, Estabrook was merely reiterating his concern about

publishing tracking data that he had raised in earlier complaint she had made to

FedEx and the FAA in 2001 and 2002, but the FAA did not take any action on his

complaint. D. & O. at 8. In fact, the parties do not dispute that the FAA requires

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that FedEx transmit tracking information to the FAA and the FAA releases some of

that information to third parties.

Estabrook challenges the ALJ’s determination that the concern he raised

about publishing tracking information did not constitute protected activity,

claiming the ALJ failed to consider regulatory provisions aimed at deterring or

preventing incidents. 5 He asserts that a complainant need not point to a specific

violation but need only relate to violations of FAA orders, regulations, and

standards. Estabrook also argues that even if his concerns did not amount to a

reasonable belief of a violation, FedEx’s and the FAA’s tracking policy was not

effective given terrorists’ attempt in 2010 to use a FedEx aircraft to carry and

detonate explosives.

In response, FedEx notes that sharing tracking information is an industrywide standard and contends that Estabrook’s concern is not an objectively or

subjectively reasonable belief of a violation of relevant federal laws. Specifically,

given Estabrook’s extensive experience and twenty years as a pilot with FedEx, it

was not reasonable for him to conclude that he was engaging in activity protected

under AIR 21. FedEx also points out that while expressing concern about the

publication of tracking information, Estabrook never mentioned FedEx’s screening

procedures or other procedures in place to detect explosive devices and thereby

fulfill its regulatory obligations.

We conclude that the ALJ’s findings of fact on these points are supported by

substantial evidence and his conclusions of law are correct. As noted above, AIR 21

protects complainants reporting a violation of a standard, rule, or regulation of the

FAA or federal law related to air carrier safety. In Hindsman, ARB 09-023, the ARB

held that a complainant did not engage in protected activity when the complainant

knew that the FAA permitted the complained of activity:

We agree with the ALJ's conclusion that while Hindsman was

aggressively carrying out her duties as lead flight attendant to ensure

49 C.F.R. § 1544.103(a)(1) (safety of persons from criminal violence and piracy,

explosives, weapons); §§ 1544.205(a), (c)(1) (cargo control policy prevents incendiary

devices, explosives).

5

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safety, once she discovered that the [personal oxygen container] POC

was FAA-permitted, she could not have had a reasonable belief that

flying with it on board violated air safety regulations. Therefore, she

did not engage in protected activity on the October 1 flight. Because

Hindsman failed to establish a required element of her complaint, the

ALJ properly dismissed her complaint as a matter of law.

Hindsman, ARB 09-023, slip op. at 5. Here, too, Estabrook 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. D. & O. at 49-50. 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. 6 Estabrook was only suggesting a policy change for FedEx to voluntarily or

proactively withdraw publishing data to make its safety or security procedures

more effective.

2. Estabrook Suffered an Adverse Action

The three adverse actions at issue in this case are the August 5 and August

9, 2013, NOQs grounding Estabrook from flight duty and the directive that

Estabrook undergo a 15D examination. Captain McDonald was the decision-maker

for the August 5 NOQ. McDonald and Ondra were the decision-makers for the

August 9 NOQ and 15D examination. The ALJ concluded that the NOQs and the

directive to comply with the 15D examination were adverse actions. D. & O. at 51.

As FedEx does not dispute the ALJ’s findings on appeal, they are affirmed. 7

A complainant’s whistleblowing becomes unreasonable if raised again after an

employer has already addressed the employee’s concern. Malmanger v. Air Evac EMS, Inc.,

ARB No. 08-071, ALJ No. 2007-AIR-008 (ARB July 2, 2009) (“[O]nce an employee’s concerns

are addressed and resolved, it is no longer reasonable for the employee to continue claiming

a safety violation, and activities initially protected lose their character as protected

activity”).

6

Leiva, ARB Nos. 14-016, -017, slip op. at 8. When FedEx implemented the August 9

NOQ, Estabrook was removed from his flight duties. D. & O. at 19. Estabrook claims that

the currency of his flight duty status expired during his grounding. D. & O. at 8. So when

he returned to flight duty following the 15D evaluation, Estabrook had to repeat some

7

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3. Estabrook’s Refusal to Fly and OSHA Complaint were not

Contributing Factors to either his August 5th and 9th NOQs nor his

15D Examination

To prevail, a complainant must demonstrate “that [the protected activity]

was a contributing factor in the unfavorable personnel action . . . .” 49 U.S.C.

§ 42121(b)(2)(B)(iii); 29 C.F.R. § 1979.109(a). “A contributing factor is ‘any factor,

which alone or in combination with other factors, tends to affect in any way the

outcome of the decision.’” Coates v. Grand Trunk W. R.R. Co., ARB No. 14-019, ALJ

No. 2013-FRS-003, slip op. at 3 (ARB July 17, 2015). The complainant must then

prove by a preponderance of the evidence that protected activity played some role

and was a proximate cause in the adverse personnel action. Koziara v. BNSF Ry.

Co., 840 F.3d 873, 877 (7th Cir. 2016) (distinguishing between causation and

proximate causation).

required training to recertify for full flight duty status. In his D. & O., the ALJ incorporated

his conclusions that the NOQs and the 15D examination directive were adverse actions.

Order Granting in Part and Denying in Part Complainant’s Motion for Summary Decision

and Denying Respondent’s Motion for Summary Decision (ALJ May 9, 2016).

While we do not disturb the ALJ’s findings and conclusions, we note that an

employer’s directive to a pilot to undergo a psychological evaluation, in and of itself, is not

an adverse action. Zavaleta v. Alaska Airlines, Inc., ARB No. 15-080, ALJ No. 2015-AIR016, slip op. at 11 (ARB May 8, 2017) (an adverse action is “more than trivial” when it is

“materially adverse” so as to “dissuad[e] a reasonable worker” from protected activity).

FedEx’s 15D evaluation is part of an air carrier’s safety responsibility for employing a pilot.

A requirement of periodic and “for cause” psychological assessments for aircraft pilots is

beneficial to the airline community and to the public. For example, it is not an adverse

action to require a pilot to undergo physicals and vision and hearing tests to ensure the

pilot’s physical competency to operate an aircraft. Second, a psychological assessment may

benefit a pilot who actually needs counseling. The 15D evaluation is a desirable tool to

protect the public and the employer from the foreseeable danger of an accident. Estabrook

knew of the 15D process and it was part of the collective bargaining agreement with FedEx.

The parties do not dispute that Estabrook continued to be paid during his grounding.

We do not suggest that a directive to undergo a 15D examination, in itself, could

never be an adverse action. If selectively implemented or utilized in a retaliatory fashion,

subjecting an employee to a 15D evaluation might be actionable as an adverse action.

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The ALJ found that FedEx management was not concerned with Estabrook’s

refusal to fly. Rather, FedEx investigated Estabrook’s breach of protocol when he

unilaterally stayed at the hotel and did not report to the airport an hour before his

flight. D. & O. at 53.

The ALJ’s findings are supported by substantial evidence. Estabrook’s late

arrival for his flight was listed as the subject matter of the 19D hearing in Fisher’s

April 23, 2013 letter notifying Estabrook of the hearing. Joint Exhibit (JX) 2. Fisher

was concerned with Estabrook’s delayed arrival. The May 1, 2013 meeting focused

entirely on the requirement that Estabrook report to duty on time. RX 9 (May 1 email from Fisher to McDonald, and others, relaying the topic of the May 1 meeting).

Although McDonald was involved with the April event in Laredo as a supervisor in

the chain of command, the ALJ failed to find a causal link between McDonald’s role

in the August adverse actions and any potential protected activity in April at

Laredo as it was alternatively unsupported and subsequently overwhelmed by

Estabrook’s unusual behavior in August. D. & O. at 53. Estabrook conceded that

FedEx requires its pilots to arrive at the airport one hour before a flight’s

departure. D. & O. at 12, 18.

Estabrook claims that FedEx’s treatment of the “Mayday Mark” postings

provide a “Laredo-related” connection from his protected activity in April to the

events in August. The ALJ did not find a causal connection between the “Mayday

Mark” postings and the adverse actions in August. We affirm the ALJ’s findings as

supported by substantial evidence. Though the “Mayday Mark” postings were

brought up in the meeting in August, FedEx accepted Estabrook’s denial when he

stated and verified that he was not Mayday Mark.

The ALJ also found that the August NOQs and 15D examination stemmed

from the August 4, 2013 e-mail and August 9, 2013 meeting. We conclude that the

ALJ’s findings are again supported by substantial evidence. The August 5, 2013

NOQ followed directly after the August 4 e-mail. The August 9 NOQ and 15D

examination directive followed immediately after the August 9 meeting and the

strange behavior Estabrook exhibited. Riess v. Nucor Corp.-Vulcraft-Texas, Inc.,

ARB No. 08-137, ALJ No. 2008-STA-011 (ARB Nov. 30, 2010) (identifying strong

temporal proximity as support for causation).

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Estabrook further claims that FedEx did not, or could not, provide reasonable

grounds for its 15D directive until the OSHA investigation. In the first instance,

FedEx disputes that it was required to provide Estabrook’s counsel with a reason

for its referral of Estabrook for the 15D evaluation. We conclude that even if a

reasonable basis were required for the referral, FedEx’s omission does not

undermine the substantial evidence supporting the ALJ’s findings that the NOQs

and the 15D examination stemmed from the behavior Estabrook exhibited in

August and not from his refusal to fly in Laredo or his April OSHA complaint.

Finally, Estabrook claims that the ALJ erred in affirming FedEx’s assertion

of attorney-client privilege concerning e-mails connected with Tice’s testimony as to

who recommended that Estabrook be removed from jumpseat privileges. But

Estabrook fails to convince us that the ALJ abused his discretion. United States v.

Mejia, 655 F.3d 126, 131 (2d Cir. 2011) (findings of attorney-client privilege are

reviewed for an abuse of discretion). The cases Estabrook cites to stand for the

proposition that a party who uses a privileged document waives privilege to the

extent it is used and cannot deny the opposing party access to the document to

evaluate how it was used. Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir.

2010) (fairness principle requires that voluntary partial disclosure of privileged

information waives privilege with respect to the disclosure); United States v. Nobles,

422 U.S. 225, 239-40 (1975) (defense’s use of investigator’s testimony on the

contents and credibility if the testimony waives privilege with respect to the

investigator’s report relevant to such testimony). FedEx did not voluntarily waive

its claim of privilege. The ALJ overruled FedEx’s assertion of privilege on two

separate occasions during Tice’s testimony. Tr. at 457-74.

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CONCLUSION

We AFFIRM the ALJ’s findings that Estabrook engaged in protected activity

when he refused to fly and filed a complaint with OSHA. We AFFIRM the ALJ’s

findings that Estabrook suffered an adverse action when FedEx grounded him and

directed him to undergo a 15D evaluation. We further AFFIRM the ALJ’s findings

that FedEx did not retaliate against Estabrook for engaging in protected activity

when it grounded him and directed him to undergo a 15D evaluation. Accordingly,

Estabrook’s complaint is DENIED.

SO ORDERED.

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