U.S. Department of Labor

Agency decision

Ask Donna

What actually matters in this document.

Text

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

MICHAEL J. JONES,

ARB CASE NO. 2023-0035

COMPLAINANT,

ALJ CASE NO. 2022-AIR-00003

ALJ SCOTT R. MORRIS

DATE: December 31, 2024

EXCLUSIVE JETS, LLC,

RESPONDENT.

Appearances:

For the Complainant:

Morgan W. Campbell, Esq. and Mark McKinnon, Esq.; Fox Rothschild

LLP; Washington, District of Columbia

For the Respondent:

Danielle Dobosz, Esq. and Zebulon D. Anderson, Esq.; Smith,

Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.; Raleigh,

North Carolina

Before WARREN, Acting Chief Administrative Appeals Judge, and ROLFE,

Administrative Appeals Judge

DECISION AND ORDER

WARREN, Administrative Appeals Judge:

This case arises under the employee protection provisions of the Wendell H.

Ford Aviation Investment and Reform Act for the 21st Century (AIR21) and its

implementing regulations.1 On May 10, 2023, Administrative Law Judge (ALJ)

49 U.S.C. § 42121; 29 C.F.R. Part 1979 (2024).

Scott R. Morris issued a Decision and Order Granting Relief (D. & O.) finding that

Respondent Exclusive Jets, LLC violated the Act by terminating Complainant

Michael J. Jones’ employment for engaging in protected activity. Because

substantial evidence supports the ALJ’s decision, we affirm.

BACKGROUND AND PROCEDURAL HISTORY

On May 23, 2017, Respondent hired Complainant as a first officer (FO).

Approximately one year later, in May 2018, Respondent promoted him to captain.

On February 27, 2019, Respondent terminated Complainant’s employment.2

1. Complainant’s Reporting of Operational Safety Issues

On multiple occasions during his employment, Complainant raised safetyrelated concerns with Respondent. Such occasions include: (i) January 2018, when

Complainant sent Respondent’s management a lengthy email laying out his

concerns; (ii) June 2018, when Complainant met with Respondent’s management to

discuss safety concerns; and (iii) February 2019, during Complainant’s final flight

rotation.

On January 8, 2018, while serving as an FO, Complainant sent a 17-page

email to Mike Guina (President Guina), Respondent’s founder and president. The

email included a range of safety-related concerns including Complainant’s opinion

that Respondent’s training was defective, that there was a culture of failing to use

checklists, that flight crews failed to record mechanical irregularities, and other

flight and duty time issues.3 Complainant’s email referenced specific Federal

Aviation Administration (FAA) requirements related to aviation safety,4 although it

also contained concerns unrelated to safety.5

On June 12, 2018, at the invitation of President Guina, Complainant

attended a meeting at Respondent’s Kinston, North Carolina headquarters for an

“airing of grievances.”6 Respondent’s Director of Operations (DO Heuman), Director

One of the “facts established by the pleadings” included in the ALJ’s decision was

that Complainant was terminated on February 26, 2019. See D. & O. at 4. However, the

record indicates that Complainant was informed of his termination on February 27, and the

termination was effective on February 28, 2019. See, e.g., D. & O. at 24; Tr. 969-70; Sec’y’s

Findings, Case #4-3750-19-067, Occupational Safety and Health Admin (Oct. 18, 2021).

D. & O. at 41.

JX 1 at 3 (noting that “14 CFR § 91.9 requires the PIC to comply with the operating

limits prescribed by the manufacturer”).

D. & O. at 41 n.136.

D. & O. at 15; Tr. at 588, 837.

of Maintenance (DOM Shearer), and Chief Pilot Petersen also attended. The

meeting related to maintenance and operations although there was no set agenda.7

The meeting quickly became strained, leading DO Heuman and Chief Pilot Petersen

to leave halfway through.8 Complainant described the meeting as hostile and

unproductive and believed that President Guina and management were upset that

he brought photos of various maintenance issues he had identified.9

In addition to raising issues in his January 2018 email and during the June

2018 meeting, Complainant consistently logged maintenance issues, some of which

resulted in planes being grounded or scheduled flights not taking place. Incidents

that occurred after Complainant’s promotion to captain included the following.

On June 8, 2018, the wind screen demister on Complainant’s aircraft, which

prevents the front of the airplane from fogging up when descending from cold

conditions, was placarded as inoperable. Respondent told Complainant “it’s

placarded unavailable. But don’t worry. It will work if you need it.” The flight

proceeded after Complainant informed President Guina he would have to fly at a

lower altitude to prevent icing.

On July 24, 2018, Complainant logged an issue related to the cockpit fire

extinguisher bracket on aircraft N742JS. After discussing the issue with President

Guina and DO Heuman, Complainant repaired the bracket with pliers.

Maintenance promised to replace the bracket after the flight.

On August 24, 2018, Complaint logged a mechanical irregularity that caused

the stairs on aircraft N716JS to fall out anytime the door was opened because a

detent had broken off. Although Respondent’s management believed that

Complainant “grounded the airplane for a non-grounding event,” a mechanic later

found the detent under the floorboard and had to reinstall it.

On December 27, 2018, Complainant logged an in-flight malfunction relating

to the yaw damper on aircraft N704JS. The aircraft was grounded. Three days later,

while preparing to captain aircraft N745JS, Complainant determined during a preflight inspection that safety equipment was missing. The FO bought the missing

safety equipment at a local retail store and the flight proceeded.

On January 9, 2019, Complainant logged a grinding noise coming from the

air conditioning compressor on aircraft N714JS. The aircraft was grounded. Two

days later Complainant logged an issue with N715JS’s fuel valve fault indicator.

Tr. at 588-90.

D. & O. at 15; Tr. at 105, 1036.

D. & O. at 16.

Maintenance staff fixed the issue and returned the aircraft to service the following

day.10

Complainant’s final rotation for Respondent began on February 5, 2019, with

Complainant flying aircraft N749JS.11 On February 5, Complainant notified

Respondent’s management about a “software not compatible” message displayed on

the flight management system (FMS) screen.12 Unsatisfied with Respondent’s

explanation of what was causing the message, the next day Complainant called the

manufacturer of the FMS and discovered that the aircraft had the wrong FMS unit

installed. Complainant also realized that the aircraft was missing the autopilot

transfer button.13 Complainant entered nine mechanical irregularities into the

aircraft’s logbook and emailed a list of the discrepancies to Respondent’s

Maintenance Control, copying DO Heuman, Chief Pilot Petersen and Fleet Lead

Captain Dominic Publico (FLC Publico).14 Regarding the autopilot transfer issue,

Respondent’s Maintenance Supervisor replied “Good catch though Mike. I can’t

believe it’s been flying round all this time and nobody else caught it. Begs the

question on [sic] how the crews have been flying it from the RH seat.” 15

The following morning, February 7, Complainant made an additional logbook

entry for a transient problem he had experienced with the aircraft’s anti-ice

switch.16 Aircraft N749JS was grounded as a result of the issues Complainant

identified.

That same day, Complainant flew to Bedford, Massachusetts to perform a

maintenance test flight on a different aircraft, N716JS.17 That aircraft was being

serviced due to uncommanded rudder movements that could cause the tail and nose

of the aircraft to pitch one way (left or right) depending on the amount of power

applied.18 Complainant regarded Respondent’s fix—moving the faulty rudder servo

to the elevator of the plane—as dangerous since it could cause the plane to

uncontrollably pitch up or down, resulting in the plane either stalling out or diving

D. & O. at 18-20; Tr. at 740-41.

D. & O. at 20; JX 5 at 3.

D. & O. at 20; CX 20 at 7.

D. & O. at 20.

D. & O. at 20-21; Tr. at 127-28; CX 25 at 1.

D. & O. at 21; CX 23 at 1.

D. & O. at 21-22; Tr. at 191.

D. & O. at 22.

Id.; Tr. at 198.

toward the ground.19 The maintenance test flight to Teterboro Airport, one of the

busiest general aviation airports in the Northeast, further concerned

Complainant.20 Additionally, the trip sheet indicated that if the rudder issue

persisted the flight should continue to Teterboro and get assistance there.21

Notably, Respondent scheduled the second leg of the maintenance test flight as a

Part 135 charter flight departing out of Teterboro.22

On the morning of February 8, the day of the maintenance test flight,

Complainant emailed Dispatch, DO Heuman, Chief Pilot Petersen, and FLC Publico

stating that the weather was not conducive for a maintenance test flight and that

he and his FO would only conduct the test flight when they had a cloud ceiling of at

least 2000 feet above ground level.23 President Guina, who received copies of all

emails sent to Dispatch, emailed Chief Pilot Petersen fourteen minutes after

receiving Complainant’s email and stated: “We have to get this under control. Call

me if you would like to discuss.”24 Chief Pilot Petersen inadvertently forwarded the

email to Complainant, which caused President Guina to remark, “Lucky I didn’t say

anything.”25

Shortly after receiving the email from President Guina, Chief Pilot Petersen

emailed Complainant telling him “Unless there are [minimum equipment list]

restrictions regarding [weather], etc., we have no limitations on the [maintenance]

acceptance flight. It is also perfectly acceptable to do [a maintenance] acceptance

flight as part of a reposition flight.”26 Ultimately, the test flight did not occur on

February 8 because the FO sustained an injury while he was performing a preflight inspection of the aircraft.27 Two days later, another pilot, who was senior to

Complainant, came to Bedford to perform the test flight and served as captain while

Complainant served as FO.28 The aircraft did not pass the test flight.29 Afterwards,

Tr. at 198.

D. & O. at 23.

Id.; Tr. at 199.

D. & O. at 23; Tr. at 200.

D. & O. at 23; CX 2 at 1-2.

CX 2 at 1.

D. & O. at 23; CX 2 at 1. “Minimum equipment list” relates to 14 C.F.R. § 91.213 and

14 C.F.R. § 135.179, which prescribe minimum equipment requirements that must be

satisfied for an aircraft to take off.

D. & O. at 24.

Id.

D. & O. at 24; Tr. at 423.

the other pilot sent Complainant home. Complainant never flew for Respondent

again.30

A little over two weeks later, Chief Pilot Petersen called Complainant and

informed him that Respondent had terminated his employment effective the

following day. Chief Pilot Petersen told Complainant that management had decided

that he was not a good fit for Respondent.31

2. Complainant’s Alleged Interpersonal Issues

Various interpersonal issues occurred during Complainant’s employment. On

January 17, 2018, for example, FLC Publico emailed DO Heuman and Chief Pilot

Petersen with negative feedback regarding Complainant’s interpersonal and flying

skills.32 FLC Publico attached an evaluation of Complainant and recommended

firing him.33 However, FLC Publico did not inform Complainant of the evaluation,

did not provide Complainant with any written documentation of the results, and did

not notify Complainant that his flying skills, interpersonal skills, and crew resource

management (CRM) were lacking.34 Notably, FLC Publico sent the recommendation

a mere week after Complainant sent Respondent the 17-page email laying out his

safety concerns.35

DO Heuman testified that when Respondent promoted Complainant to

captain in May 2018, he hoped commanding an aircraft would help Complainant

with what DO Heuman described as his inability “to get along with crew

members.”36 At that time, however, management had not informed Complainant

about any concerns regarding his relationships with copilots or other employees.37

In August 2018, FLC Publico sent DO Heuman and Chief Pilot Petersen an

email stating that he had received multiple complaints about Complainant’s

proficiency.38 The email included perspectives from two FOs—one of whom had an

D. & O. at 24.

D. & O. at 24-25.

RX 30 at 1; Tr. at 683.

D. & O. at 25; RX 30.

D. & O. at 35.

D. & O. at 13 n. 40.

Tr. at 833-34.

D. & O. at 14.

D. & O. at 26; RX 6.

issue with Complainant’s requirement that the FO perform certain tasks.39 The

ALJ, however, questioned the veracity and significance of these complaints. FLC

Publico acknowledged that a pilot in command had discretion to delegate these

duties to the FO.40 And Chief Pilot Petersen could not recall ever speaking to any

FO about their relationship with Complainant, nor did he recall ever speaking to

Complainant about FOs complaining about him.41 Similarly, Chief Pilot Petersen

never documented these alleged complaints.42 As a result, the ALJ “did not find

Chief Pilot Petersen’s testimony particularly credible,” describing it as “vague at

best.”43 Although Chief Pilot Petersen sometimes made suggestions to flight control

about not pairing certain people together because of interpersonal issues, he could

not recall doing so with regard to Complainant.44

On December 11, 2018, FLC Publico emailed Complainant notifying him that

he would serve as an FO during his upcoming rotation “due to the difficulties that

have been expressed to management from multiple First Officers that have flown

with [him].”45 By the end of the month, however, Complainant returned to serving

as a captain and Respondent noted improvement with Complainant’s CRM and

interpersonal skills.46 In early January 2019, FO Wriker sent an email to DO

Heuman, Chief Pilot Petersen, and FLC Publico about not wanting to fly with

Complainant on consecutive rotations.47 FO Wriker testified that his objections to

flying with Complainant related to safety of flight, command authority, and overall

confidence in Complainant as a pilot in command.48

3. Post-Termination

Shortly after Complainant’s termination, Gama Aviation (Gama), another

Part 135 air carrier, provided him an initial job offer but ultimately did not hire him

D. & O. at 26.

Id.; Tr. at 735-36.

D. & O. at 26; Tr. at 978-79.

D. & O. at 37.

Tr. at 977-78.

D. & O. at 28; RX 4.

Tr. at 712-13,169; D. & O. at 47 n.145 (noting that Complainant “actually only

served as an FO for a few days, and then was returned to fly additional flights as a

captain.”).

D. & O. at 28; Tr. at 768-69; RX 67.

Tr. at 769-70.

because he failed to timely return a training agreement he had questions about.49

Gama withdrew the offer during the onboarding process before providing

Complainant any compensation.50 Complainant later obtained employment at

Walmart and then with the City of Rockledge.51 In September 2021, Complainant

began working as a first officer with JetBlue.52 By January 2022, his compensation

exceeded what he would have earned had Respondent not terminated his

employment.53

Complainant filed a complaint with the Occupational Safety and Health

Administration (OSHA) on March 16, 2019, which OSHA dismissed on October 18,

2021. Complainant timely objected and requested a hearing before the Department

of Labor’s Office of Administrative Law Judges (OALJ). ALJ Morris held a hearing

from October 25, 2022 to October 28, 2022, finding for Complainant and ordering

Respondent to: (i) reimburse Complainant $196,005.27 in backpay, plus interest;

(ii) pay $15,000 in damages for emotional harm; (iii) expunge any mention of

Complainant’s termination from his personal record; and (iv) reimburse

Complainant his litigation costs and attorney fees and costs. Respondent timely

appealed the ALJ’s decision to the Board.

On appeal, Respondent raises a number of issues, challenging all aspects of

the ALJ’s decision. Respondent argues that: (i) Complainant’s logbook entries and

actions during his final rotation were not protected activity; (ii) Complainant’s

protected activity was not a contributing factor to his termination; (iii) it would

have fired Complainant even in the absence of Complainant’s protected activity;

(iv) its liability for backpay should be tolled as of the date Complainant received a

job offer from Gama Aviation; (v) the method the ALJ used to calculate interest on

Complainant’s backpay award should be revised; and (vi) Complainant is not

entitled to compensatory damages for emotional distress. Except for Respondent’s

interest argument, we disagree.

JURISDICTION AND STANDARD OF REVIEW

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

from ALJ decisions and to issue agency decisions in cases arising under AIR21.54 In

D. & O. at 30, 50; RX 46.

D. & O. at 50.

D. & O. at 30.

Id.

D. & O. at 51 n.146.

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020);

29 C.F.R. § 1979.110(a).

AIR21 cases, the Board reviews questions of law presented on appeal de novo, but is

bound by the ALJ’s factual findings that are supported by substantial evidence.55

Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”56 The Board affords great deference to an

ALJ’s credibility determinations and will only overturn such findings if they

“conflict with a clear preponderance of the evidence” or “are inherently incredible or

patently unreasonable.”57

DISCUSSION

1. AIR21 Legal Standards

Under AIR21’s whistleblower protection provisions, a complainant engages in

protected activity if they:

[P]rovided, 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 aviation safety . . . .[58]

To prevail in a retaliation case under AIR21, a complainant must prove by a

preponderance of the evidence that they engaged in protected activity and that the

protected activity was a contributing factor in the adverse employment action taken

against them.59 If a complainant meets this burden of proof, the respondent may

avoid liability if it proves by clear and convincing evidence that it would have taken

the same unfavorable personnel action in the absence of the complainant’s protected

activity.60

29 C.F.R. § 1979.110(b); see also Mazenko v. Pegasus Aircraft Mgmt., LLC, ARB No.

2021-0032, ALJ No. 2019-AIR-00001, slip op. at 10 (ARB June 18, 2024).

Mazenko, ARB No. 2021-0032, slip op. at 10 (quoting Universal Camera Corp. v.

NLRB, 340 U.S. 474, 477 (1951)).

Bobreski v. J. Givoo Consultants, Inc., ARB No. 2009-0057, ALJ No. 2008-ERA00003, slip op. at 14 (ARB June 24, 2011) (citation omitted); see also Folger v.

SimplexGrinnell, LLC, ARB No. 2015-0021, ALJ No. 2013-SOX-00042, slip op. 4 n.8 (ARB

Feb. 18, 2016).

49 U.S.C. § 42121(a)(1).

Mazenko, ARB No. 2021-0032, slip op. at 12 (citing 49 U.S.C. § 42121(b)(2)(B)(iii); 29

C.F.R. § 1979.109(a)).

Id. (citing 49 U.S.C. § 42121(b)(2)(B)(iv); 29 C.F.R. § 1979.109(a)).

2. Complainant’s Protected Activity

The ALJ found that the January 8, 2018 email Complainant sent to

Respondent’s management and the June 12, 2018 meeting between Complainant

and Respondent’s management, as well as Complainant’s logbook entries, were

protected activity.61 Respondent does not challenge that the email and meeting

constitute protected activity and we affirm the ALJ’s finding as unchallenged on

appeal. The ALJ also treated Complainant’s actions during his final rotation—

which included logbook entries, emails about mechanical issues Complainant

identified, and Complainant’s refusal to carry out a test flight in inclement

weather—as protected activity.62 Respondent challenges the findings that

Complainant’s logbook entries and his actions during his final rotation were

protected activity.

To constitute protected activity, an employee’s belief of a violation must be

subjectively held and objectively reasonable.63 An employee, however, “need not

prove an actual FAA violation.”64 To prove subjective belief, a complainant must

prove that he held the belief in good faith.65 To determine whether a complainant’s

belief was objectively reasonable, the ALJ must assess the belief taking into account

whether a person of similar training and experience would hold it—or in other

words, consider the knowledge available to a reasonable person in similar factual

circumstances with similar training and experience as the aggrieved employee.66

Respondent argues the ALJ committed reversible error in concluding that

Complainant engaged in protected activity anytime he logged mechanical

D. & O. at 41-42. The ALJ did not specify which logbook entries by Complainant

constitute protected activity.

D. & O. at 45 (“Further, there is temporal proximity between the February 7, 2019

emails concerning N749JS and [Complainant’s] termination less than three weeks later.”).

Mazenko, ARB No. 2021-0032, slip op. at 14; see also Sewade v. Halo-Flight, Inc.,

ARB No. 2013-0098, ALJ No. 2013-AIR-00009, slip op. at 7-8 (ARB Feb. 13, 2015).

Mazenko, ARB No. 2021-0032, slip op. at 14 (emphasis in original).

Burdette v. ExpressJet Airlines, Inc., ARB No. 2014-0059, ALJ No. 2013-AIR-00016,

slip op. at 5 (ARB Jan. 21, 2016).

DeBuse v. Corr Flight S., ARB No. 2023-0036, ALJ No. 2020-AIR-00015, slip op. at

16 (ARB Dec. 6, 2024).

irregularities.67 Respondent points to Sievers, v. Alaska Airlines, in which the Board

held that “’competently’ and ‘aggressively’ carrying out duties to ensure safety,

though laudable, does not by itself constitute protected activity.”68 Board precedent

also makes clear that a “logbook entry in and of itself” does not necessarily

constitute protected activity.69 Respondent thus correctly maintains the ALJ erred

to the extent he found a rebuttable presumption that an airman making entries

made into an maintenance logbook is protected activity.70 But even though making

logbook entries is not per se protected activity, the ALJ’s misstatement is harmless

error, because Complainant’s actions on February 5-8, 2019 went beyond mere

logbook entries and unquestionably constitute protected activity.71

Although a logbook entry, in and of itself, may not be protected activity,

Complainant’s action during his final rotation consisted of more than simply noting

mechanical irregularities in an aircraft’s logbook. Between February 5th and

February 8th, Complainant (i) notified management about a “software not

compatible” message being displayed on FMS screen; (ii) called the manufacturer of

the FMS after being told by Respondent’s maintenance that the FMS problem was

“just a database issue;” (iii) entered nine logbook entries for aircraft N749JS;

(iv) emailed a list of logbook entries to Maintenance Control, DO Heuman, Chief

Pilot Petersen, and FLC Publico; and (v) made an additional logbook entry the

However, before the ALJ, Respondent repeatedly referred to logbook entries,

provided they were properly made rather than being maliciously held, as protected activity.

See, e.g., Resp. Post-Hearing Br. at 31 (“It is clear from Heuman’s testimony and his

answers to the Tribunal’s questions that Heuman was very clearly distinguishing

legitimate protected activity (i.e., writing up defects) and illegitimate activity (i.e.,

malicious compliance and/or ‘pocket squawks’”)).

Sievers, v. Alaska Airlines, Inc., ARB No. 2005-0109, ALJ No. 2004-AIR-00028,

slip op. at 5 (ARB Jan. 30, 2008).

Luder v. Cont’l Airlines, Inc., ARB No. 2010-0026, ALJ No. 2008-AIR-00009, slip op.

at 8 (ARB Jan. 31, 2012).

D. & O. at 39.

See, e.g., McLean v. Am. Eagle Airlines, Inc., ARB No. 2012-0005, ALJ No. 2010-AIR00016, slip op. at 6 n.1 (ARB Sept. 30, 2014) (finding harmless error where the ALJ failed to

apply the proper burden of proof because an agency may rely on a harmless error rule when

the error does not affect the result); Forrand v. FedEx Express, ARB No. 2019-0041, ALJ

No. 2017-AIR-00016, slip op. at 4 n. 11 (ARB Jan. 4, 2021) (per curiam) (finding that an

ALJ’s failure to identify certain actions as protected activity was harmless error because

the Board found that the Complainant was not subject to retaliation). Similarly, although

the ALJ did not provide any authority for his statement that all logbook entries are

“presumed to be made in good faith,” this misstatement is harmless error because the ALJ

also specifically found that there was “no credible evidence that Complainant’s logbook

entries that were either maliciously made or maliciously held for a later time.” D. & O. at

40.

following morning. Separately, Complainant emailed Dispatch, DO Heuman, Chief

Pilot Petersen, and FLC Publico to tell them the weather was not conducive for a

maintenance test flight scheduled for February 8 and that he would not fly unless

conditions improved.72

Complainant thus identified various mechanical irregularities, logged them,

and discussed his concerns with management. Settled precedent establishes

Complainant’s conduct as protected activity.73

Further, Complainant’s logbook entry and communications with Respondent

regarding the inability to transfer the autopilot controls from the right-hand side to

the left-hand side had the effect of reporting violations by the aircraft’s previous

pilots for failing to comply with 14 C.F.R. § 135.65(b), an FAA regulation that

requires pilots to report mechanical irregularities that come to their attention. In a

decision affirming the Board, the Fifth Circuit recognized this “effective reporting”

theory, finding that a pilot who made a logbook entry concerning turbulence

experienced on a previous flight flown by a different pilot engaged in protected

activity by “effectively reported a violation by the previous pilot for failing to log his

encounter with severe turbulence.”74

Robust evidence establishes that Complainant effectively reported violations

of 14 C.F.R. § 135.65(b) by other pilots who previously flew N749JS. After being

made aware of the autopilot transfer issue, Maintenance Supervisor Matthew

McDermott wrote “Good catch though Mike. I can’t believe it’s been flying round all

this time and nobody else caught it. Begs the question on [sic] how the crews have

been flying it from the RH seat.”75 Complainant responded with:

When I first started here ALL the FO’s were flying from the

RHS with the Autopilot and FD couple [sic] to the LEFT as

standard procedure. Most of the Captains insisted it had to

be, even the IOE Captains and some didn’t really

understand what it meant with some saying it had to do

D. & O. at 20-24; see also Resp. Reply Br. at 10.

This course of behavior is comparable to what the Board found to be protected

activity in Luder v. Continental Airlines (making a logbook entry and refusing to fly until

an inspection was undertaken) and Sievers (informing a manager that a plane was not

airworthy and that signing off on it would be wrong). See Luder v. Cont’l Airlines, Inc., ARB

No. 2010-0026, slip op. at 8; Sievers, ARB No. 2005-0109, slip op. at 5.

Cont’l Airlines, Inc. v. Admin. Review Bd., 638 F. App’x 283, 288 (5th Cir. 2016).

D. & O. at 21; CX 23 at 1.

with FMS 1!” . . . No one seemed to get why it was such a

bad idea. It took a long while for it to change.[76]

As this email exchange demonstrates, Complainant’s reporting of other pilots’

failure to comply with § 135.65(b) did not occur in a vacuum. Rather, Complainant

raised this issue in the past, as evidenced by his description of the previous

“standard procedure” that “took a long while” to change. The record contains

repeated examples of Complainant raising concerns about other pilots failing to

properly record mechanical defects or irregularities.77 For instance, in his January

2018 email, Complainant informed Respondent’s management of numerous

instances in which captains were reluctant or unwilling to write up defects unless

forced to do so.78 Complainant provided examples including a captain who was

“unwilling to write up defects” and described Complainant’s insistence on following

regulations as “causing trouble,” as well as another captain who left a hand-written

note on the pilot’s seat about mechanical issues that had been observed but were

not diagnosed or written up.79

On top of this, DO Heuman’s unrebutted testimony establishes Respondent

assigned Complainant his own dedicated aircraft in December 2018 in part because

he complained about prior flight crews not writing up aircraft.80 DO Heuman also

testified at length about Respondent’s efforts to investigate Complainant’s

allegations that other pilots were not properly logging aircraft defects and other

mechanical issues.81 Additionally, the ALJ noted an incident from May 2018 in

which Complainant took issue with a previous flight crew failing to log an engine oil

pressure warning light.82 Complainant’s logging of the autopilot and FMS software

issues that went unaddressed by previous flight crews and his communication with

Respondent’s maintenance supervisor about the broader problem of pilots flying

with improper mechanical setups and failing to note mechanical issues fit squarely

within the confines of protected activity. Substantial evidence thus supports the

ALJ’s conclusion that Complainant held a reasonable belief that he was reporting a

safety violation.83

D. & O. at 21; CX 23 at 1.

Tr. at 886; D. & O. at 17 (noting that one of the reasons DO Heuman “assigned

Complainant a specific aircraft was because of his complaining about other flight crews not

writing up mechanical irregularities”).

JX 1 at 8.

Id. at 8, 10.

Tr. at 886.

Id. at 889-94.

D. & O. at 15; Tr. at 97-99.

Resp. Reply Br. at 9.

Similarly, substantial evidence supports the ALJ’s finding that

Complainant’s belief was objectively reasonable. Among other things, the email

exchange in which Respondent’s maintenance supervisor told Complainant “I can’t

believe that it’s been flying around all this time and nobody else caught it,” shows

that not only did the maintenance supervisor understand the logbook entry and

email to mean that previous pilots had failed to log the issue, but he also believed

the issue was one that other pilots should have identified.84 Respondent thus has

not met its burden on appeal to demonstrate that a reasonable mind could not find

that a pilot with Complainant’s experience and expertise would believe

Respondent’s conduct violated a safety rule based on the numerous logbook entries.

Accordingly, Complainant’s belief that 14 C.F.R. § 135.65 had been violated was

objectively reasonable even though he did not specifically reference that

regulation.85

Complainant also engaged in protected activity during his final rotation

when he pushed back on performing a maintenance test flight to Teterboro due to

the weather. FAA regulations state that “[n]o person may operate a civil aircraft

unless it is in an airworthy condition,” and “[t]he pilot in command of a civil aircraft

is responsible for determining whether that aircraft is in condition for safe flight.”86

The flight to Teterboro tested whether the rudder was working properly. Therefore,

Complainant’s refusal to fly unless weather conditions improved plainly related to

aviation safety regardless of whether flying the plane in adverse weather conditions

would necessarily violate FAA regulations.87 Moreover, Chief Pilot Petersen’s and

President Guina’s testimony corroborate Complainant’s belief; both described

Complainant’s decision to delay the flight as prudent.88

On appeal, Respondent points out that DO Heuman “fully supported

Complainant’s prudential judgment to wait for better weather.”89 But that does not

change the protected activity analysis. As the Board recognized in Sewade v. Halo84

D. & O. at 21; CX 23 at 1.

Since an employee need not prove an actual FAA violation to engage in protected

activity, Complainant need not demonstrate that the autopilot issue actually came to other

pilots’ attention, which would be a prerequisite to proving that a violation of 14 C.F.R.

§ 135.65 occurred.

14 C.F.R. § 91.7.

See Evans v. Miami Valley Hosp., ARB Nos. 2007-0118, -0121, ALJ No. 2006-AIR00022, slip op. at 14 (ARB June 30, 2009) (finding that an employee engaged in protected

activity when he grounded the aircraft because he reasonably believed that it was unsafe to

fly).

Tr. at 598, 992.

Resp. Br. at 28.

Flight, Inc., “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 negative) does not change that AIR21 protected activity has

occurred.”90 When Complainant raised concerns about the safety of carrying out the

February 8 test flight with very low cloud cover, Complainant engaged in protected

activity—even if Respondent now claims to have agreed with the safety concerns

raised by Complainant.91

3. Respondent’s Adverse Action

AIR21 prohibits an employer from discharging or otherwise discriminating

“against an employee with respect to compensation, terms, conditions, or privileges

of employment” for engaging in protected conduct.92 Based on the plain language of

the statute, Complainant’s termination was an adverse action.93

4. Contributing Factor Analysis

Complainant has the burden to prove by a preponderance of the evidence that

his protected activity was a contributing factor to Respondent’s adverse action.94

A contributing factor is “any factor, which alone or in connection with other factors,

tends to affect in any way the outcome of the decision.”95 Further, “the level of

causation that a complainant needs to show is extremely low[.]”96 To meet its

burden, an employee only needs to demonstrate that the protected activity played

Sewade, ARB No. 2013-0098, slip op. at 8.

Although DO Heuman testified that he supported Complainant’s decision to not

make the test flight unless weather conditions improved, President Guina testified that he

got involved because he “would like the flight to happen if it can.” Tr. at 670; see also id. at

598.

49 U.S.C. § 42121(a).

See, e.g., Forrand v. FedEx Express, ARB No. 2019-0041, ALJ No. 2017-AIR-00016,

slip op. at 5 (Jan 4. 2021) (“The Board has said that adverse action may also include

firing[.]”).

Mazenko, ARB No. 2021-0032, slip op. at 26.

Id.; Printz v. STS Aviation Grp., ARB No. 2022-0045, ALJ No. 2021-AIR-00013, slip

op. at 29 (ARB Dec. 15, 2023).

Printz, ARB No. 2022-0045, slip op. at 31 (quoting Palmer v. Canadian Nat’l Ry.,

ARB No. 2016-0035, ALJ No. 2014-FRS-000154, slip op. at 15 (ARB Sept. 30, 2016)).

some role; the protected activity’s role “need not be ‘significant, motivating,

substantial or predominant.”97

The ALJ found that Complainant’s protected activity contributed to

Respondent’s decision to terminate his employment.98 In reaching this conclusion,

the ALJ noted both direct evidence—DO Heuman’s testimony—and circumstantial

evidence—temporal proximity—that Complainant’s protected activity on February

5-8, 2019 contributed to the decision to terminate him.99 The ALJ also observed that

Complainant’s protected activity in January 2018 was “in no way a factor in

Respondent’s decision to terminate his employment” given that Respondent

promoted Complainant to captain after he sent the January 2018 email.100

Although not dispositive, “[t]emporal proximity is an important part of a case

based on circumstantial evidence, often the ‘most persuasive factor.’”101

Nonetheless, the causal connection that temporal proximity gives rise to “may be

severed by the passage of a significant amount of time, or by some legitimate

intervening event.”102 Respondent does not, and given Complainant’s removal from

Dick v. USAA, ARB No. 2022-0063, ALJ No. 2018-STA-00054, slip op. at 14 (ARB

Apr. 16, 2024) (quoting Simpson v. Equity Transp. Co., ARB No. 2019-0010, ALJ No. 2017STA-00076, slip op. at 9 (ARB May 13, 2020)).

D. & O. at 46.

Id. at 45.

Id. at 45 n.141. The ALJ based this finding on the fact that Complainant was

promoted to captain five months after he sent the 17-page email to President Guina in

January 2018. The ALJ also cited the “period that elapsed between Complainant’s

complaints and the alleged retaliatory action” as evidence that the January 2018 email

played no role in Complainant’s dismissal. The ALJ did not make any finding as to whether

the July 2018 meeting contributed to the decision to terminate Complainant’s employment

and we do not find it necessary to address that issue on appeal.

100

Hukman v. U.S. Airways, Inc., ARB No. 2018-0048, ALJ No. 2015-AIR-00003 slip op.

at 17 (ARB Jan. 16, 2020) (quoting Franchini v. Argonne Nat’l Lab’y, ARB No. 2011-0006,

ALJ No. 2009-ERA-00014, slip op. at 10-11 (ARB Sept. 26, 2012); see also Ameristar

Airways, Inc. v. Admin. Rev. Bd., U.S. Dep’t of Lab., 650 F.3d 562, 569 (5th Cir. 2011)

(recognizing that temporal proximity carries “significant weight”).

101

Feldman v. Law Enf’t Assocs. Corp., 752 F.3d 339, 348-49 (4th Cir. 2014); see also

Benniger v. Flight Safety Int’l, ARB No. 2011-0064, ALJ No. 2009-AIR-00022, slip op. at 2

n.2 (ARB Feb. 26, 2013) (recognizing that intervening events can but do not necessarily

break a causal connection between protected activity and adverse action); May v. AGL

Servs. Co., ARB No. 2022-0015, ALJ No. 2020-PSI-00001, slip op. at 9 (ARB Sept. 14, 2023)

(recognizing that an intervening event occurring between the protected activity and the

adverse personnel action can make temporal proximity insufficient to prove causation);

Williams v. QVC, Inc., ARB No. 2020-0019, ALJ No. 2018-SOX-00019, slip op. at 14 (ARB

Jan. 17, 2023) (same).

102

the rotation immediately following his protected activity, cannot, point to any

intervening event that independently could have caused the adverse action and

severed the causal connection between the protected activity and the adverse

action.103

Respondent cites a January 18 email from FO Wriker indicating that he did

not want to fly with Complainant on consecutive rotations. While the email (at best)

may show additional factors contributed to Complainant’s termination, it does not

weaken the inference the ALJ drew from the proximity between Complainant’s

protected activity and his termination. Respondent similarly cannot show that a

significant amount of time passed between the protected activity and the adverse

action to discount that temporal proximity. Although the Board has refrained from

“defin[ing] the outer limits beyond which a temporal relationship is too attenuated

to establish a causal relationship,” we have recognized that gaps of ten to twenty

months could be sufficiently close temporal proximity.104 In the instant case, less

than three weeks elapsed between Complainant’s protected activity on February 58, 2019, and his termination on February 27. Additionally, Respondent removed

Complainant from his current rotation and sent him home only two days after his

protected activity—an extremely short temporal gap that provides a strong

inference of a causal relationship between Complainant’s protected activity and his

termination.

Although temporal proximity standing alone does not automatically establish

a complainant’s protected activity contributed to their dismissal, it can be sufficient

when combined with other circumstantial or direct evidence.105 Here, DO Heuman’s

testimony supports the ALJ’s finding Respondent terminated Complainant’s

employment, in part, because of his recording of mechanical irregularities.106

See, e.g., Barber v. Planet Airways, Inc., ARB No. 2004-0056, ALJ No. 2002-AIR00019, slip op. at 6 (ARB Apr. 28, 2006) (recognizing that “inferring a causal relationship

between the protected activity and the adverse action is not logical when the two are

separated by an intervening event that independently could have caused the adverse

action.”).

103

Hukman, ARB No. 2018-0048, slip op. at 18-19; see also, e.g., Brown v. Lockheed

Martin, ARB No. 2010-0050, ALJ No. 2008-SOX-00049 (ARB Feb. 28, 2011).

104

See Ameristar Airways, Inc., 650 F.3d at 569 n.21. In Palmer, the Board described

the “commonsense principle” that “knowledge plus close temporal proximity should nearly

always be sufficient to infer contributing factor [causation].” Palmer, ARB No. 2016-0035,

slip op. at 71 n.280. In a concurring opinion, Judge Desai clarified that an “ALJ may make

an inference based on knowledge plus timing, but it is the ALJ’s task to determine whether

to do so, since the ALJ is the factfinder.” Id. at 84-85 (Desai, J., concurring).

105

106

D. & O. at 29-30.

On appeal, Respondent argues that the ALJ misunderstood DO Heuman’s

testimony and “fail[ed] to appreciate the clear distinction drawn by Heuman in his

testimony” between waiting to log irregularities until it was convenient to do so and

timely logging irregularities at the end of a flight.107 But the ALJ permissibly found

the record belies its argument. In his decision, the ALJ cited DO Heuman’s

admission that Complainant’s logbook entries contributed to his termination: “That

and—yeah— and then there was his behavior with - yeah, so that’s – it’s all true,

yes.”108

This admission demonstrates the ALJ understood that DO Heuman

terminated Complainant’s employment, in part, because Complainant was making

logbook entries that DO Heuman believed were being held back until it was

convenient to log them. The ALJ, however, rejected DO Heuman’s view, finding “no

credible evidence that Complainant’s logbook entries [] were either maliciously

made or maliciously held for a later time.”109 Other evidence corroborates the ALJ’s

finding: DO Heuman further testified that although other pilots at Exclusive Jets

had been counseled about holding back logbook entries, he could not recall ever

talking to or counseling Complainant about making inappropriate logbook entries

or holding back entries.110

Given the lack of evidence that Complainant actually held back logbook

entries, Respondent argues that “it is the perception of the decisionmaker which is

relevant.”111 But context matters. Although the Board has held that in certain

instances the focus should be on the employer’s perception of the employee’s actions,

such as when an employer perceives an employee is about to report a safety

violation, we have articulated this principle against the backdrop of statutes that

specifically prohibit retaliation based on a perception of future protected activity.112

Those decisions are easily distinguished from this case where Respondent

incorrectly contends that an employer’s inaccurate perception that an employee was

engaged in unprotected activity can automatically insulate it from liability, a view

107

Resp. Br. at 27.

108

D. & O. at 29-30.

109

D.& O. at 40.

110

Tr. at 902.

111

Resp. Br. at 25 (citing Holland v. Wash. Homes, Inc., 487 F.3d 208, 217 (4th Cir.

2007)).

See Kirschmann v. Hampton Rds. Transit, ARB No. 2023-0002, ALJ No. 2021-NTS00006, slip op. at 11 (ARB Feb. 14, 2024) (“Because the statutes specifically prohibit

retaliation because of a perception of protected activity, it is immaterial whether a

complainant actually engaged in protected activity (or was going to) and the focus must

necessarily be on the employer’s perception of the employee’s actions or potential future

actions.”).

112

that would lead to results that do not comport with the AIR21’s goal of protecting

whistleblowers. Although an employer may be prohibited from retaliating against

an employee due to activity the employer perceives to be protected activity, such as

when it perceives an employee is going to report a violation, it does not logically

follow that an employer is then free to retaliate against an employee anytime it

perceives protected activity to be unprotected. The law protects both the employee

who has engaged in protected activity that the employer perceives to be unprotected

and the employee who an employer retaliates against because it perceives they have

engaged or will engage in protected activity.

The close temporal proximity between Complainant’s protected activity and

his termination, coupled with DO Heuman’s testimony that Complainant’s practice

of logging mechanical irregularities was a factor in the decision to terminate

Complainant’s employment constitutes substantial evidence supporting the ALJ’s

decision on this element.113

5. Respondent’s Affirmative Defense

Even if a complainant has made a prima facie showing of retaliation in

violation of AIR21, a respondent may avoid liability if it demonstrates by clear and

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

absence of any protected activity. Clear and convincing evidence “denotes a

conclusive demonstration; such evidence indicates that the thing to be proved is

highly probable or reasonably certain.”114 The ALJ found that Respondent did not

meet this burden and failed to show that it was “highly probable that Respondent

would have terminated [Complainant] if there was not the perception that he was

such a persistent author of mechanical irregularities, a protected activity.”115

Under Board precedent, it is not enough for an employer to show that

it could have taken the same adverse action; it must show that it would have done

See, e.g., Van McMullen v. Figeac Aero North Am., ARB No. 2017-0018, ALJ No.

2015-AIR-00027 (ARB Mar. 30, 2020) (affirming an ALJ decision finding for complainant

because temporal proximity and testimony of record established causation); Brown, ARB

No. 2010-0050, slip op. at 11 (affirming an ALJ decision finding for complainant because

there was circumstantial evidence of causation including temporal proximity of ten to

twenty months)

113

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

at 19 (ARB Mar. 29, 2022) (quoting Clemmons v. Ameristar Airways, Inc., ARB No. 20080067, ALJ No. 2004-AIR-00011, slip op. at 11 (ARB May 26, 2010)).

114

115

D. & O. at 54.

so even in the absence of protected activity.116 Similarly, an employer cannot carry

its burden by showing that it might have taken the same adverse action against an

employee.117 After all, “the clear and convincing standard is truly a high

standard.”118 This higher burden is justified because it is imposed only after it has

been established “that protected activity actually contributed to an unfavorable

employment action.”119 Substantial evidence supports the ALJ’s conclusion that

although Respondent could have terminated Complainant solely due to his CRM

and interpersonal issues, Respondent did not demonstrate that it would have done

so.

Respondent struggled to meet this high burden largely because the proffered

explanation for why Respondent terminated Complainant—that he had significant

CRM and interpersonal issues—relates to a problem first documented in January

2018, more than a year before Complainant’s employment was terminated.120 On

appeal, Respondent attempts to fill this significant gap by alleging that the timing

of the decision was due to “the long history of Complainant’s issues and conflicts

with other pilots” that “had come to a head.”121 But the evidence adduced at the

hearing does not establish that Complainant’s performance was progressively

worsening and somehow reached the tipping point at the same time he engaged in

protected activity. Rather, the ALJ found the evidence demonstrated that

Complainant’s issues were on-again, off-again problems never properly documented

by management, and that they both improved and worsened at various points

during the course of Complainant’s employment.

Further, the record does not contain any warnings, re-trainings, or

progressive discipline that would be expected with an issue that supposedly grew

Palmer, ARB No. 2016-0035, slip op. at 57; Powers v. Union Pacific R.R. Co., ARB

No. 2013-0034, ALJ No. 2010-FRS-00030, slip op. at 12 (ARB Jan. 6, 2017); Speegle v. Stone

& Webster Constr., Inc., ARB No. 2013-0074, ALJ No. 2005-ERA-00006, slip op. at 11 (ARB

Apr. 25, 2014).

116

Douglas v. Skywest Airlines, Inc., ARB Nos. 2008-0070, -0074, ALJ No. 2006-AIR00014, slip op. at 17 n.108 (ARB Sept. 30, 2009).

117

Palmer, ARB No. 2016-0035, slip op. at 66 n.265 (Corchado, J., concurring); see also

Smith v. Duke Energy Carolinas, LLC, ARB No. 2014-0027, ALJ No. 2009-ERA-00007,

slip op. at 12 (ARB Feb. 25, 2015) (“The ‘clear and convincing’” phrase is not quite as clear

but it obviously suggests a high standard[.]”).

118

119

Smith, ARB No. 2014-0027, slip op. at 12 (Corchado, J. concurring).

As the ALJ noted, it is curious that Complainant’s purported interpersonal issues

were first document just a week after Complainant engaged in protected activity by sending

a 17-page email with safety and other concerns to Respondent’s management. D. & O.

at 35.

120

121

Resp. Br. at 30.

worse over time. Rather, the parties stipulated that Complainant never underwent

any remedial CRM or other training.122 Additionally, after Complainant was

evaluated and these issues were noted in January 2018, Complainant was not

informed that he been evaluated, let alone that his CRM and interpersonal skills

were lacking.123 Instead, Respondent promoted Complainant to captain five months

after the negative evaluation. Respondent’s policies require that an employee

demonstrate effective CRM in order to be upgraded to captain.124 When he was

made captain, Complainant had never been informed that Respondent’s

management had concerns about how he got along with other pilots and FOs.125

Indeed, the ALJ noted that Respondent did not offer a credible explanation as

to why it promoted Complainant to pilot and gave him more authority over the

operations of its aircraft if the allegations about his conduct and interpersonal skills

were true.126 Although Complainant was notified in December 2018 that he would

have to spend time as a first officer / second in command due to his interpersonal

issues and because some FOs were unwilling to fly with him, by the end of that

month he was back to flying as a captain again.127 In his testimony, DO Heuman

acknowledged that some improvement in Complainant’s CRM had been noted by

the time he returned to flying as a captain. Chief Pilot Petersen also testified about

Complainant’s interpersonal skills, but the ALJ did not find this testimony to be

particularly credible, describing it as vague and providing “very little detail,” in part

because Petersen had limited interaction with Complainant.128 We find no reason to

overturn this credibility determination.

Additionally, Respondent never attempted to switch Complainant to the

other flight crew rotation (which contained 10 or 11 additional FOs that

Complainant could have been paired with, including at least 6 or 7 who had never

flown with Complainant).129 Respondent’s management was not able to explain why

Respondent never tried such an approach. This, coupled with the lack of

disciplinary actions, retraining, or other corrective measures related to

Complainant’s CRM and interpersonal issues, supports the ALJ’s conclusion that

although Respondent could have terminated Complainant, Respondent did not

122

D. & O. at 6.

123

Id. at 35.

124

Tr. at 882; JX 13 at 4-5.

125

D. & O. at 14; Tr. at 174.

126

D. & O. at 35.

127

Id. at 47 n.145.

128

Id. at 37.

129

Id. at 46.

demonstrate that it would have done so in the absence of Complainant’s protected

activity.

In support of its affirmative defense, Respondent points to DO Heuman’s

testimony that, if the only issue with Complainant had been DO Heuman’s

suspicion of “malicious compliance,” he would not have discharged Complainant.130

This may be true, but it is legally irrelevant. To carry its burden, an employer must

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

employee’s protected activity; not that it would not have taken the adverse action in

the absence of other non-protected activity that was also a contributing factor

behind the adverse action. This inverted formulation would transform the ‘same

decision’ defense into a sole factor analysis that would wholly undermine the

contributing factor analysis required by AIR21’s statutory scheme.131

6. Respondent’s Backpay Liability

A prevailing complainant in an AIR21 case is entitled to reinstatement to

their former position, compensation including backpay, and compensatory damages.

The ALJ determined that Complainant was entitled to $196,005.27 in backpay for

the period between his termination and January 2022, when his compensation

began to exceed what he would have earned had he still been employed by

Respondent.

Respondent contends that its backpay liability to Complainant should be

tolled as of March 25, 2019, the date Complainant received the Gama Aviation job

offer, based on the assertion that Complainant’s failure to maintain employment

with Gama was a failure to mitigate damages.132 We reject Respondent’s argument

as counter to binding precedent: “only if the employee’s misconduct is gross or

egregious, or if it constitutes a willful violation of company rules, will termination

resulting from such conduct serve to toll the discriminating employer’s back pay

130

Resp. Br. at 31.

See 49 U.S.C § 42121(b)(2)(B)(iii); 29 C.F.R. § 1979.109(a) (“A determination that a

violation has occurred may only be made if the complainant has demonstrated that

protected behavior or conduct was a contributing factor in the unfavorable personnel action

alleged in the complaint.”).

131

See Cook v. Guardian Lubricants, Inc., ARB No. 1997-0055, ALJ No. 1995-STA00043, slip op. at 5 (ARB May 30, 1997) (“The mitigation of damages doctrine requires that

a wrongfully discharged employee not only diligently seek substantially equivalent

employment during the interim period but also that the employee act reasonably to

maintain such employment.”).

132

liability.”133 Respondent urges the Board to overturn more than a quarter century of

precedent and adopt a lower standard for tolling an employer’s backpay liability.

We decline to do so.

Less than a year ago, the Board addressed this same issue in Ass’t Sec’y &

Becker v. Smithstonian Materials and acknowledged that “[w]hile some courts have

applied tolling in cases involving less serious conduct . . . the ARB has consistently

held that a tolling offset is applicable only in cases involving misconduct which is

gross or egregious, or constitutes a wilful violation of company rules.”134

Additionally, the Fourth Circuit has articulated a similar standard to the one

adopted by the Board, holding that an “employee who willfully loses employment by

engaging in deliberate or gross misconduct is not entitled to backpay for a resulting

earnings loss.”135 The ALJ applied the correct legal standard and Respondent does

not articulate a compelling reason why we should reverse course and adopt a

different standard.

Further, substantial evidence supports the ALJ’s determination that

Complainant did not engage in gross or egregious misconduct, nor a willful violation

of company rules, when it came to his efforts to obtain employment with Gama. As

part of the onboarding process for Gama, Complainant: (i) studied for and completed

25 online exams;136 (ii) told a recruiter over the phone that he had questions about a

training agreement he was required to sign;137 (iii) took a pre-employment drug

test;138 (iv) submitted some of the required onboarding documents, including a

signed offer letter, application form, background check consent form, confidential

agreement;139 I-9 form and I-9 verification document;140 (v) sent an email regarding

Johnson v. Roadway Express, Inc., ARB No. 2001-0013, ALJ No. 1999-STA-00005,

slip op. at 10 (ARB Dec. 30, 2002) (quoting Cook, ARB No. 1997-0055, slip op. at 6); see also

Blackie v. D. Pierce Transp., Inc., ARB No. 2013-0065, ALJ No. 2011-STA-00055, slip op. at

15 (ARB June 17, 2014); Pollock v. Cont’l Express, ARB Nos. 2007-0073, 2008-0051, ALJ

No. 2006-STA-00001, slip op. at 12 (ARB Apr. 7, 2010).

133

Ass’t Sec’y & Becker v. Smithstonian Materials, LLC, ARB No. 2021-0048, ALJ No.

2013-STA-00050, slip op. at 18-19 (ARB Oct. 18, 2023) (internal markings omitted).

134

NLRB v. Pessoa Constr. Co., 632 F. App’x 760, 763 (4th Cir. 2015) (quoting NLRB v.

Pepsi Cola Bottling Co. of Fayetteville, 258 F.3d 305, 310 (4th Cir. 2001)).

135

136

Tr. at 215.

137

Id. at 457-59.

138

Id. at 452.

139

See Tr. at 455-56; RX 46 at 5-7.

Based on Complainant’s response to the list of outstanding items, the documents

submitted on April 3, 2019, were the I-9 form and I-9 verification document. See RX 46 at 5.

140

his questions about the training form;141 (iv) reiterated in writing that he had

outstanding questions regarding the training agreement;142 and (vii) twice called

the recruiter after the job offer was withdrawn to try to smooth things over.143

Complainant’s failure to submit a required document on time, especially when

considered alongside the onboarding tasks he successfully completed, does not rise

to the level of gross or egregious misconduct. The ALJ did not err in refusing to toll

Complainant’s backpay as of March 25, 2019.

7. Interest on Backpay

Prevailing complainants are entitled to interest on an award of backpay.144

The ALJ ordered that Complainant receive pre- and post-judgment interest in an

amount determined pursuant to the formula the Board set out in Doyle v. Hydro

Nuclear Services.145 Pursuant to this formula, interest compounds quarterly and the

proper interest rate is the rate charged on the underpayment of federal income

taxes: the federal short-term rate, determined under 26 U.S.C. § 6621(b)(3), plus

three percentage points.146 In addition to holding that interest on backpay awards

should be compounded quarterly, Doyle provided “guidance” on how quarterly

compounding interest should be calculated:

The Federal short-term interest rate to be used is the socalled “applicable federal rate” (AFR) for a quarterly

period of compounding.

. . . To determine the interest for the first quarter of back

pay owed, the parties shall multiply the back pay principal

owed for that quarter by the sum of the quarterly average

AFR plus three percentage points. To determine the

quarterly average interest rate, the parties shall calculate

the arithmetic average of the AFR for each of the three

months of the calendar quarter, rounded to the nearest

whole percentage point. . . . We round to the whole number

141

Tr. at 467; RX 46 at 4.

142

RX 46 at 2.

143

Tr. at 489.

Doyle v. Hydro Nuclear Servs., ARB Nos. 1999-0041, 1999-0042, 2000-0012, ALJ No.

1989-ERA-00022, slip op. at 18 (ARB May 17, 2000) (“Back pay is awarded to make the

claimant whole, and such relief ‘can only be achieved if [prejudgment] interest is

compounded.”) (quoting EEOC v. Kentucky State Police Dept., 80 F.3d 1086, 1098 (6th Cir.

1996)).

144

145

D. & O. at 54.

146

Doyle, ARB Nos.1999-0041, -0042, 2000-0012, slip op. at 18-19.

because the parties did so in their evidentiary submissions

to the ALJ. . . .

To determine the interest for the second quarter of back

pay owed, the parties shall add the first quarter principal,

the first quarter interest, and the second quarter principal.

The resulting sum is multiplied by the second quarter’s

interest rate as calculated according to the preceding

paragraph. This multiplication yields the second quarter

interest.

This process shall continue for computing the interest owed

on the back pay through the date of the issuance of this

decision.[147]

Respondent argues that the guidance provided in Doyle incorporates a rate of

interest typically used as an annual rate of interest (the federal short-term rate)

and inappropriately uses it to calculate the amount of interest that accrues on a

quarterly basis.148 This argument is persuasive. Because of this, the Doyle formula

results in interest calculations that do not comport with AIR21’s remedial aim and

provides complainants with interest awards that far exceed the interest they would

accrue elsewhere.

Here, Complainant was awarded $196,005.27 in backpay and the interest

calculations submitted by the parties indicate that backpay plus pre-judgment

interest, which was calculated for just under 18 quarters spanning Q1 2019 to

partway through Q2 2023, comes out to $322,117. This is an effective annual

interest rate of 11.67%. By contrast, the federal short-term rate (rounded to the

nearest whole percentage point, as required by the Doyle formula) during the period

in which interest was calculated, ranged from 0% to 4%. Similarly, the interest

charged on the underpayment of federal income taxes (again, rounded to the

nearest whole percentage point) during this period ranged from 3% to 7%.

While Doyle’s holding that interest on backpay should be “compound” rather

than “simple” remains sound, the decision’s instructions on how to calculate

compound interest is dicta and does not provide appropriate guidance for how to

calculate interest in AIR21 whistleblower cases. We also take this opportunity to

recognize that daily, rather than quarterly, is the appropriate period of

compounding when calculating interest on backpay awards in AIR21 cases.

147

Id. at 19 (internal references removed).

148

Resp. Br. at 40.

The Doyle board justified the use of quarterly compounding interest, in part,

by observing that in “two recent decisions under the whistleblower provision of the

Surface Transportation Assistance Act of 1984 [STAA] . . . we ordered that the

interest on back pay should be compounded quarterly.”149 At the time Doyle was

decided, the regulations implementing STAA (as well as those implementing the

whistleblower protection provisions of other federal statutes) were silent as to the

frequency with which interest should compound.

Today, the STAA regulations require that interest on backpay be calculated

using the interest rate applicable to the underpayment of federal income taxes and

be compounded daily.150 In the Final Rule providing for daily compounding of

interest in STAA whistleblower cases, the Secretary of Labor noted that “daily

compounding of interest better achieves the make-whole purpose of a backpay

award. Daily compounding of interest has become the norm in private lending and

recently was found to be the most appropriate method of calculating interest on

backpay by the National Labor Relations Board.”151 Similar regulatory reforms have

been made to the whistleblower protection provisions of other statutes administered

by the Department of Labor, including the National Transit Systems Security Act,

the Federal Railroad Safety Act, and Section 806 of the Sarbanes-Oxley Act.152

Notably, interest on federal tax underpayments—the reference the Board has long

used in determining the appropriate interest rate when calculating interest on

backpay awards—is compounded daily.153

Daily compounding furthers AIR21’s remedial aims without producing a

windfall for successful complainants. As for how to calculate daily compounding

interest, we find the regulations governing interest calculations for backpay awards

to federal employees to be instructive: “On each day for which interest accrues, the

149

Doyle, ARB Nos.1999-0041, -0042, 2000-0012, slip op. at 18.

150

29 C.F.R. § 1978.109(d)(1).

Procedures for the Handling of Retaliation Complaints Under the Employee

Protection Provision of the Surface Transportation Assistance Act of 1982 (STAA), as

Amended, 77 Fed. Reg 44,121, 44,128 (July 27, 2012).

151

See, e.g., Procedures for the Handling of Retaliation Complaints Under the National

Transit Systems Security Act and the Federal Railroad Safety Act, 80 Fed. Reg. 69,115,

69,124 (Nov. 9, 2015) (citing Jackson Hosp. Corp. v. United Steel, Paper & Forestry, Rubber,

Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union, 356 N.L.R.B. No. 8, 2010 WL

4318371, (Oct. 22, 2010)); Procedures for the Handling of Retaliation Complaints Under

Section 806 of the Sarbanes-Oxley Act of 2002, as Amended, 76 Fed. Reg. 68,084, 68,088

(Nov. 3, 2011) (recognizing that “[t]his is a change from the way interest has been

calculated. See Doyle v. Hydro Nuclear Servs., ARB Nos. 1999-0041, -0042, and 2000-0012,

2000 WL 694384, at *15-16 (ARB May 17, 2000)).”

152

153

26 U.S.C. § 6622.

agency shall compound interest by dividing the applicable interest rate (expressed

as a decimal) by 365 (366 in a leap year).”154

8. Emotional Distress

Under AIR21, a successful complainant is entitled to compensatory damages

in addition to backpay.155 To recover compensatory damages for emotional harm, a

complainant “must show by a preponderance of the evidence that [they] experienced

mental suffering or emotional anguish, and that the unfavorable personnel action

caused the harm.”156 Although the testimony of medical or psychiatric experts can

strengthen the case for awarding compensatory damages, it is not required.157 We

have routinely affirmed compensatory damages awards in cases where no medical

or psychiatric evidence was presented, provided that the complainant’s evidence

was unrefuted and, as determined by the ALJ, credible.158 Compensatory damages

must be “proportionate to the harm inflicted,” but there is no specific formula for

determining the amount of compensatory damages a complainant is owed and we

need not establish one today.159

The ALJ awarded Complainant $15,000 in compensatory damages for

emotional distress and loss of reputation. The ALJ found that the limited evidence

of emotional harm that Complainant presented was unrefuted.160 During the

hearing, Complainant testified that his termination from employment was very

difficult for him because it was the first time he had trouble getting a job, and being

in the aviation industry had “been [his] life for 20+ years.”161 Complainant stated

that he “never thought [he] was going to work again.”162 Following his termination,

154

5 C.F.R. § 550.806(e).

155

49 U.S.C. § 42121(b)(3)(B)(iii); 29 C.F.R. § 1979.110(d).

156

Petitt, ARB No. 2021-00014, slip op. at 23.

Id. (quoting Jones v. EG&G Def. Materials, ARB No. 1997-0129, ALJ No. 1995-CAA00003, slip op. at 23 (ARB Sept. 29, 1998)).

157

Id. at 23-24 (citing Hobson v. Combined Transp., Inc., ARB Nos. 2006-0016, -0053,

ALJ No. 2005-STA-00035, slip op. at 8 (ARB Jan. 31, 2008) (affirming award for emotional

distress based on complainant’s testimony alone where it was “unrefuted and, according to

the ALJ, credible.”)).

158

Id. at 23 (quoting Wallum v. Bell Helicopter Textron, Inc., ARB No. 2009-0081, ALJ

No. 2009-AIR-00006, slip op. at 3 (ARB Sept. 2, 2011)).

159

160

D. & O. at 53.

161

Tr. at 259.

162

Id. at 219.

Complainant’s wife had to work significant overtime and became exhausted.163

Having depleted his finances and still needing to support his two school-aged

children and multiple pets, Complainant eventually accepted a job stocking shelves

at Walmart during the night shift, which resulted in him not spending as much

time with his family since he had to sleep during the day.164 This unrefuted

testimony supports the ALJ’s determination.

In determining the amount of compensatory damages Complainant is entitled

to, a key step is a comparison with awards made in similar cases.165 As the ALJ

noted in his decision, cases arising under AIR21 have provided for compensatory

damages ranging from $3,000 to $100,000.166 Even if we were to limit the universe

of comparison cases to those in which the complainant did not provide medical or

psychiatric evidence, we have affirmed compensatory damages awards of up to

$100,000.167 In cases arising under other whistleblower protection statutes, we have

affirmed awards of up to $250,000 absent any medical or psychiatric evidence.168

Those cases involved the same type of evidence of emotional harm that

Complainant presented: testimony about the difficulty of finding new employment

in a chosen profession, the stress of depleted finances, and needing spouses to take

on additional work.169 The ALJ’s decision to award only a fraction of the $200,000 in

non-economic damages that Complainant sought reflects his determination that

although Complainant’s testimony was credible and unrefuted, it also lacked much

163

Id. at 259.

164

D. & O. at 30; Tr. at 218-19, 259.

See, e.g., Fink v. R&L Transfer, Inc., ARB No. 2013-0018, ALJ No. 2012-STA-00006,

slip op. at 5 (ARB Mar. 19, 2014); Ferguson v. New Prime, Inc., ARB No. 2010-0075, ALJ

No. 2009-STA-00047, slip op. at 8 (ARB Aug. 31, 2011); Evans, ARB Nos. 2007-0118, -0121,

slip op. at 20.

165

166

D. & O. at 53 n.153.

167

See Evans, ARB Nos. 2007-0118, -0121.

Hobby v. Georgia Power Co., ARB No. 1998-0166, ALJ No. 1990-ERA-00030 (ARB

Feb. 9, 2001).

168

See Evans, ARB Nos. 2007-0118, -0121, slip op. at 21-22 (affirming an award of

$100,000 where complainant testified that “the biggest upset was that he could no longer

provide for his family” and his wife testified that she had to return to teaching for

additional income); Hobby, ARB No. 1998-0166, slip op. at 31-33 (affirming an award of

$250,000 where complainant experienced “difficulty finding work in his chosen profession,

and experienced emotional distress tied to his depleted finances, repeated requests of

friends and family for money”); Vieques Air Link, Inc. v. U.S. Dep’t of Lab., 437 F.3d 102,

110 (1st Cir. 2006) (affirming an award of $50,000 in compensatory damages where

complainant testified that “he struggled to support his wife and two infant children while

he looked for new full-time employment[.]”).

169

detail. Substantial evidence supports the ALJ’s decision to award $15,000 in

compensatory damages for emotional distress; it is in line with similar cases, and

we will not disturb it.

CONCLUSION

We AFFIRM the ALJ’s D. & O. in all respects other than the method for

calculating interest on the backpay owed to Complainant.

SO ORDERED.

____________________________________

IVEY S. WARREN

Acting Chief Administrative Appeals Judge

____________________________________

JONATHAN ROLFE

Administrative Appeals Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.