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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

DARREN KOSSEN,

ARB CASE NO. 2022-0004

COMPLAINANT,

ALJ CASE NO. 2019-AIR-00022

ALJ CHRISTOPHER LARSEN

DATE: June 13, 2023

EMPIRE AIRLINES,

RESPONDENT.

Appearances:

For the Complainant:

Darren Kossen; pro se; Honolulu, Hawaii

For the Respondent:

Dale A. De Felice, Esq. and Paul S. Stewart, Esq.; Paine Hamblen

LLP; Spokane, Washington

Before PUST, BURRELL, and WARREN Administrative Appeals Judges

DECISION AND ORDER

BURRELL, Administrative Appeals Judge:

This case arises under the Wendell H. Ford Aviation Investment and Reform

Act for the 21st Century (AIR 21).1 Complainant Darren Kossen (Complainant or

Kossen) filed a complaint alleging that his former employer, Respondent Empire

Airlines, Inc., (Respondent or Empire) retaliated against him in violation of AIR

21’s whistleblower protection provisions. After a formal hearing, a United States

Department of Labor Administrative Law Judge (ALJ) issued a Decision and Order

49 U.S.C. § 42121, as implemented by the regulations at 29 C.F.R. Part 1979 (2022).

(D. & O.) dismissing Kossen’s complaint. Kossen appealed the ALJ’s decision to the

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

affirm the ALJ’s decision.

BACKGROUND

Empire hired Kossen to work as a pilot on March 3, 2018. After completing

company training, Kossen conducted his first flight as a qualified captain on July 4,

2018.2 Roughly a month later, on August 18, 2018, First Officer (FO) Nathan Price

(Price) and other FOs complained to Jake Russack (Russack), Respondent’s Director

of Operational Support and Chief Pilot, about Kossen’s “weak” piloting skills and

poor communications, all of which raised safety concerns.3 Based on these reports,

Russack made the decision to reassign Kossen to FO duties (“right seat”) “for a time

‘to gain some more operating experience’ and ‘fly with some experienced captains to

receive some mentorship.’”4 Russack testified that Kossen spent roughly two weeks

as FO before returning to Pilot-in-Command (PIC) duties.5 Shortly thereafter, on

September 24, 2018, Price submitted a formal complaint to Russack and other

Empire managers accusing Kossen of directing other pilots to follow an

unauthorized procedure for handling an aircraft engine failure.6 That same day,

Kossen sent an email to Russack accusing Price of committing piloting errors and

“making up false statements” about him.7 Russack followed up with Kossen on

proper protocol.

On February 26, 2019, Kossen was the PIC of Empire Airlines Flight 602

from Honolulu to Molokai, Hawaii, and Price was the FO. The aircraft was in the

process of landing at the Molokai Airport when Kossen and Price received flight

warnings from the aircraft’s instruments. One of the warnings was a “stick shaker.”

A stick shaker is a warning of an impending aerodynamic stall.8 According to Price,

the “stick pusher” warning light was also activated. A stick pusher “occurs when the

aircraft automatically drops its nose, independent of pilot control, to prevent a

stall.”9

Hearing Transcript (Tr.) 373-74.

D. & O. at 13.

Id. The “right seat” refers to the First Officer’s seat.

Tr. 472-73.

D. & O. at 14; Respondent’s Hearing Exhibit (RX) 5 at 1-2.

D. & O. at 14, 24; Joint Hearing Exhibit (JX) 2 at 3.

D. & O. at 2 n.4.

Id. at 3.

The pilots avoided a stall and returned to Honolulu. Kossen and Price

continued to fly the aircraft for the remainder of the workday.10 On February 27,

2019, Price reported the incident to company management by completing an

Aviation Safety Action Program (ASAP) report.11 Price reported that, on February

26, the crew had experienced a “stick shaker” and he saw a warning light for a

“stick pusher” as well.12 Kossen completed a separate ASAP report about the

February 26 incident on February 28, 2019. Kossen indicated that the “stick

shaker” had activated at a higher speed than it should have (suggesting a

mechanical defect), and the crew recovered with no loss of altitude and no other

effect on the flight.13

Russack and incoming Chief Pilot Steve Stringer (Stringer) interviewed

Kossen on March 1, 2019, about the February 26, 2019 incident and flight

procedures. During the recorded interview, Kossen acknowledged the “stick shaker”

warning but denied there had been a “stick pusher.”14 Kossen minimized the event,

but Russack and Stringer disagreed with him about the seriousness of the incident

and correct flight procedure.15

Russack spoke to Kossen again on March 5, 2019, but neither of them

recorded the conversation. Kossen asserts that in this phone call he told Russack

that a mechanical failure caused the stick shaker event, and he would report

Empire to the Federal Aviation Administration (FAA) if they blamed him for the

aircraft’s performance.16 Russack’s version of the conversation differs considerably.

On March 7, 2019, Russack summarized the March 5 and prior conversation in an

email to several Empire managers including Peter Broschet (Broschet), Empire

Airlines’ Director of Human Resources.17 Russack stated that he and Stringer had

spoken to Kossen about the “stall event” and Kossen continued to blame others and

outside conditions rather than take responsibility for his actions and duties as PIC.

Russack was concerned with Kossen’s ability to safely operate an aircraft.18 Empire

Id. at 2-3; Tr. 340.

D. & O. at 3; RX 6. The Federal Aviation Administration (FAA) administers an

initiative called the Aviation Safety Action Program (ASAP) that allows air carriers and

their employees to report aviation-related hazards and safety concerns to management and

to the FAA.

D. & O. at 3.

Id.; JX 3.

JX 4.

Id.

Tr. 181; Complainant’s Brief (Comp. Br.) at 30, 33.

JX 5.

Id. at 1-2.

terminated Kossen’s employment by letter that same day.19 According to Broschet,

the decision to terminate Kossen’s employment was made by “the Safety

Department, Flight Ops, HR and the executive team.”20

Kossen filed a complaint with the Department of Labor’s Occupational Safety

and Health Administration (OSHA) on June 12, 2019, asserting that Empire

violated AIR 21 by terminating his employment. The complaint presented a general

allegation that Empire’s “aircraft” and “first officer” were “unsafe.”21 On June 18,

2019, OSHA dismissed his complaint, and Kossen requested a hearing before an

ALJ.

Prior to the hearing, Kossen filed a motion to disqualify the ALJ on the

grounds of bias due to a prior decision and the fact that the ALJ’s son works for the

airline industry. The ALJ denied Kossen’s motion and declined to recuse himself

from the case.22 The ALJ conducted the hearing on May 10 and 11, 2021, and on

October 8, 2021, issued a D. & O. denying Kossen’s complaint. The ALJ found

Kossen to be not credible.23 He concluded that Kossen engaged in protected activity,

Empire knew of the protected activity, and Kossen suffered an adverse employment

action.24 The ALJ concluded, however, that protected activity was not a contributing

factor in that decision.25 Empire terminated Kossen’s employment in response to

the lapses in judgment he displayed before engaging in protected activity and

because of his attitude and responses to criticism.26 The ALJ also concluded that

JX 1 at 1.

Tr. 377.

JX 8 at 3.

Kossen filed an interlocutory appeal of the ALJ’s denial with the Board, which we

denied on February 25, 2021. Kossen v. Empire Airlines, ARB No. 2021-0017, ALJ No. 2019AIR-00022 (ARB Feb. 25, 2021).

See, e.g., D. & O. at 10 (“Mr. Kossen is a passionate witness, but not a credible one.

First, he scrupulously avoids the central issue in this case – namely, whether Respondent

took adverse employment actions against him because he made a safety complaint – and

focuses instead on collateral issues . . . Second, he is inclined to exaggerate or

mischaracterize the content of writings. . . . Third, his testimony, like his written

arguments, is simply confusing. Whether this is intentional I do not know, but his

narratives are hard to follow, at times self-contradictory, and his questions of witnesses

frequently unintelligible.”).

Id. at 20-24.

Id. at 24-25.

Id.

Empire had proven by clear and convincing evidence that it would have discharged

Kossen in the absence of his protected activity.27

On October 21, 2021, Kossen filed a petition for review of the ALJ’s D. & O.

Kossen also filed five additional motions to reopen the record and vacate the ALJ’s

decision.

JURISDICTION AND STANDARD OF REVIEW

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

from ALJ decisions and to issue agency decisions in cases arising under AIR 21.28 In

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

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

evidence.29 Substantial evidence is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”30 The Board reviews an ALJ’s

procedural rulings under an abuse of discretion standard.31

DISCUSSION

1. Governing Law

AIR 21 provides that an air carrier:

[M]ay not discharge an employee or otherwise discriminate

against an employee with respect to compensation, terms,

conditions, or privileges of employment because the

employee . . . provided . . . to the employer or Federal

Government information relating to any violation or

alleged violation of any order, regulation, or standard of the

Federal Aviation Administration or any other provision of

Federal law relating to aviation safety . . . .[32]

Id. at 21, 25.

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

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13,186 (Mar. 6, 2020); 29 C.F.R. § 1979.110(a).

29 C.F.R. § 1979.110(b); Yates v. Superior Air Charter LLC, ARB No. 2017-0061,

ALJ No. 2015-AIR-00028, slip op. at 4 (ARB Sept. 26, 2019) (citation omitted).

Consol. Edison Co. of N.Y. v. Nat’l Lab. Rels. Bd., 305 U.S. 197, 229 (1938) (citations

omitted); Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).

Vander Boegh v. EnergySolutions, Inc., ARB No. 2015-0062, ALJ No. 2006-ERA00026, slip op. at 7 (ARB Feb. 24, 2017) (citation omitted).

49 U.S.C. § 42121(a)(1).

To prevail in a retaliation case under AIR 21, the complainant must prove by

a preponderance of the evidence that he or she engaged in protected activity and

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

taken against them.33 If the 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.34

2. Kossen Engaged in Protected Activity

To meet his burden of proof, Kossen is required to provide credible evidence

that he engaged in activities protected by AIR 21. Protected activity under AIR 21

includes information provided to the employer or Federal Government relating to

violations or alleged violations of orders, regulations, or standards of the FAA or

federal law related to aviation safety.35 The ALJ correctly concluded that complaints

filed with OSHA may be oral or written and must be specific enough to provide the

employer with notice of the alleged violation or protected activity.36 The

complainant need not prove an actual violation or cite to a statutory provision as

long as he or she has a reasonable belief (containing both objective and subjective

components) of a violation.37 As summarized below, we agree with the ALJ’s

conclusion that Kossen engaged in protected activity, but we also agree that some of

Kossen’s alleged activities do not qualify for protection under AIR 21.

On September 24, 2018, Price submitted a formal complaint to Russack and

other Empire managers accusing Kossen of directing other pilots to follow an

unauthorized procedure for handling an engine failure.38 That same day, Kossen

sent an email to Russack accusing Price of committing piloting errors and “making

up false statements” about him.39 The ALJ’s finding that Kossen’s criticism of

Price’s performance “may” constitute activity protected by AIR 21 is supported by

Dolan v. Aero Micronesia, Inc., ARB Nos. 2020-0006, -0008, ALJ No. 2018-AIR00032, slip op. at 4 (ARB June 30, 2021) (citation omitted); 49 U.S.C. § 42121(b)(2)(B)(iii);

29 C.F.R. § 1979.109(a).

Dolan, ARB Nos. 2020-0006, -0008, slip op. at 4-5 (citing 49 U.S.C. §

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

49 U.S.C. § 42121(a)(1).

D. & O. at 22 (citing Simpson v. United Parcel Serv., ARB No. 2006-0065, ALJ No.

2005-AIR-00031 (ARB Mar. 14, 2008)).

Id. (citing Douglas v. Skywest Airlines, Inc., ARB Nos. 2008-0070, -0074, ALJ No.

2006-AIR-00014 (ARB Sept. 30, 2009)).

RX 5 at 1-2.

JX 2 at 3.

substantial evidence.40 We note that the ALJ’s use of “may” creates an ambiguity as

to whether the communication constitutes protected activity. Because we affirm the

ALJ’s findings that protected activity did not contribute to Kossen’s termination,

any error the ALJ committed concerning ambiguity is harmless. We will treat the

ALJ’s use of “may” as an affirmative finding of protected activity.

On February 28, 2019, Kossen submitted an ASAP report to Empire

containing information that could be interpreted as informing the company of a

violation of an applicable safety standard.41 The ALJ concluded that Kossen

provided sufficient evidence to prove that he engaged in protected activity under

AIR 21. The record supports this conclusion. Kossen’s complaints about Price and

the aircraft involved in the February 26 incident were made directly to Empire, so

the ALJ’s finding that Empire had knowledge of these protected activities is also

supported by substantial evidence.42

The ALJ found that Kossen “may” have engaged in protected activity in his

conversations with Empire during the first week of March 2019.43 We agree with

the ALJ’s conclusion that Kossen engaged in protected activity on March 1st when

he opined, “that the aircraft [involved in the February 26, 2019 incident] should be

grounded.”44 Kossen also claims that when he spoke to Russack on March 5, 2019,

he threatened to report Empire to the FAA.45 Russack denies that Kossen made

these statements during the call.46 The ALJ found Russack’s denial of this exchange

more credible than Kossen’s assertion.47 Kossen has failed to persuade us that the

ALJ erred.

Kossen failed to meet his burden to prove that other alleged activities that he

presented to the ALJ and has repeated on appeal to the Board were protected under

AIR 21. Kossen failed to prove that he “wrote up an airplane with an uncontrolled

yaw damper activation”48 on February 25, 2019. The ALJ ruled that “there is no

D. & O. at 23.

Id. (“In his February 28, 2019, ASAP report, Mr. Kossen suggests “maybe ops check

airplane” (JX 3 at 3), which can reasonably be construed as information related to a

violation or alleged violation of an applicable safety standard.”).

Id.

Comp. Br. at 30, 33.

See Tr. 504-05.

D. & O. at 23 n.18.

Id. at 22.

documentary evidence of this report, either in the record before [him], nor in the

records of Empire Airlines.”49 We concur with this determination.

The record also supports the ALJ’s conclusion that Kossen failed to cite to

any evidence that he presented complaints about Empire’s attendance policies or a

terrain fault that would constitute protected activity.50 And assuming that Kossen

contacted the FAA on March 15 and June 12, 2019, to report maintenance issues,51

those actions occurred after Kossen’s discharge from Empire and therefore could not

have contributed to his discharge.

3. Kossen’s Protected Activities Did Not Contribute to His Discharge

We have reviewed the record, and substantial evidence supports the ALJ’s

finding that Kossen’s protected activity did not contribute to his discharge.52 The

record indicates that Empire had serious concerns about allowing Kossen to

continue working as a pilot. In an August 2018 email, Russack commented on

Kossen’s performance:

We have had feedback from several FOs that Kossen is a

very weak captain and can exhibit behavior that is

dangerous. Anthony has done two observations this

weekend that have confirmed Kossen is a weak captain.

Also, Kossen is being carried by FOs who may not always

be the strongest. Issues include aircraft control and PIC

judgment.

Based on safety for our customers, crews and assets, I have

placed Kossen in that right seat starting tomorrow,

Sunday. . . . If anyone disagrees or has other ideas, please

understand I do take full ownership for making this

decision over the weekend out of concern for safety of flight

and avoiding an accident when we have evidence he isn’t

performing to PIC standards.[53]

Id. at 23.

Id.

Comp. Br. at 36.

There is no dispute that Kossen suffered an adverse employment action when

Empire terminated his employment on March 7, 2019. Kossen’s brief contains several

sections that purport to discuss additional adverse employment actions (See Comp. Br. at

45-65), but we can discern no additional actions that warrant consideration.

RX 3.

Following the investigation into the February 26, 2019 incident, Russack

conveyed his perception of Kossen’s performance to officials in a March 7, 2019

email. According to Russack, Kossen:

[C]ontinued to blame the FO, the airplane, the weather . . .

Steve and I both told him he could have killed a plane load

of people, didn’t know the correct procedures and used poor

judgment. We were getting nowhere with him and

concluded the call by telling him he would continue to be

offline until further notice . . . I followed up Tuesday with

a call to Darren and he was still deflecting and blaming . . .

In my opinion he has no business being in the cockpit of a

plane . . . I am not sure how I personally could explain to

investigators and Capital Hill [sic] his background and

why he was at the controls of an aircraft in either seat if

there were to be an accident.[54]

Kossen’s employment was terminated for poor performance that same day, March 7,

2019.

The reason for your separation will be recorded as

Unsatisfactory Performance. During the review of the stick

shaker/pusher incident that happened on February 26,

2019, flight 602, and your previous training records

(PRIA/FAA Blue Ribbon) has led us to believe that you

display substandard performance for a part 121 Airline

Captain.[55]

Empire’s concerns extended beyond evaluating Kossen’s competency and

ability as a pilot in command to include his attitude and acceptance of

responsibility. The ALJ’s finding that Kossen “rais[ed] complaints against others in

response to questions about his own proficiency” is supported by substantial

evidence.56 Kossen criticized Price on September 24, 2018, in response to Russack’s

questions about Price’s complaint about Kossen.57 Kossen’s February 28, 2019

ASAP report followed Price’s ASAP report which contained complaints regarding

Kossen’s performance. And the March complaints he presented about the aircraft

involved in the February 26, 2019 incident came after the March 1, 2019

conversation with Russack and Stringer about the incident. The ALJ credited the

See JX 5 at 1-2.

JX 1 at 1.

D. & O. at 24.

Id.

testimony of Arlon Rosenoff, Empire Airlines’ Director of Safety and Security, who

asserted that it was Kossen’s practice of raising complaints against others in

response to questions about his own proficiency that led Empire to terminate his

employment.58

On appeal, Kossen repeats his assertion that Empire improperly referred to

his PRIA records when it terminated his employment.59 The ALJ explained that:

The Pilot Records Improvement Act of 1996 (“PRIA”),

enacted as part of the Federal Aviation Reauthorization

Act of 1996, 110 Stat. 3213, 3259-63 (1996), requires an air

carrier, before allowing a new hire to begin service as a

pilot, to request and receive a large volume of records, such

as the pilot’s license, medical certificate, type ratings, and

any enforcement actions that resulted in a finding against

the pilot that has not been overturned. The carrier must

also request records from the pilot’s previous employer.[60]

We agree with the ALJ’s conclusion that “interpreting the PRIA and determining

whether Empire violated it, whether when terminating Mr. Kossen’s employment or

in its dealings with a third party, are better decided by the FAA than the

Department of Labor.”61 Further, Kossen has not explained how Empire’s violating

a rule related to PRIA constitutes a violation of AIR 21, or alters the ALJ’s findings

and conclusions as to Empire’s termination of Kossen’s employment for performance

related reasons.

4. Empire Would Have Fired Kossen in the Absence of His Protected

Activities

The record also supports the ALJ’s conclusion that Empire would have

discharged Kossen in the absence of any protected activity. The ALJ “fully credit[ed]

Mr. Russack’s and Mr. Rosenoff’s testimony, and [found] and conclude[d] Empire

reasonably believed Mr. Kossen did not understand, or was not willing to assume,

the responsibility of a pilot-in-command.”62 As discussed above, Kossen failed to

Id.

Comp. Br. at 10 (“. . . the FAA prohibits employers from going back to the PRIA after

hiring specifically to stop the Empires of the world trumping up reasons for firing from

these documents provided at hiring . . .”).

D. & O. at 3 n.6.

Id. at 3-4 n.6 (noting that Kossen had initiated an FAA investigation related to

Empire’s use of his PRIA records).

Id. at 25.

take responsibility for actions and shifted blame to others.63 Even if Kossen had not

filed an ASAP report or made any other protected complaints prior to his discharge,

Empire would still have received Price’s report, which would still have led to the

conversations about Kossen’s behavior and performance that culminated in his

discharge.

5. Kossen’s Other Motions and Allegations

A. Motions to Reopen the Record

Kossen has submitted five motions asking the Board to reopen the record to

admit additional exhibits. The Board may order an ALJ to reopen the record based

upon “newly discovered evidence which by due diligence could not have been

discovered in time to move for a new trial.”64 The Board will grant such relief only

in limited circumstances.65 Under this standard, the moving party must show that

“(1) the evidence was discovered after trial; (2) due diligence was exercised to

discover the evidence; (3) the evidence is material and not merely cumulative or

impeaching; and (4) the evidence is such that a new trial would probably produce a

different result.”66

We deny each of these motions because they do not meet the above-stated

criteria. Kossen’s January 11, 2022 “Motion to ARB to Opening (sic) the Record for

Newly Discovered Evidence” accuses Empire of violating various airline safety laws,

but it does not indicate how those violations were related to his discharge.

Similarly, his February 25, 2022 “Motion to Open the Record for Newly Discovered

Evidence” describes a “manufacturing defect that can cause a malfunction in the

stick shaker/pusher and potential for a total loss of control,” but whether or not the

shaker or pusher warnings were a result of a malfunction is irrelevant because

Kossen’s employment was terminated because of his performance and attitude

while responding to the incident.

Kossen also submitted an April 11, 2022 “Motion to Open the Record for

Newly Discovered Evidence of Darren Kossen’s Pilot Records (PRIA) Documentation

from Employment at Empire Airlines” and an August 25, 2022 “Motion for Opening

Id.

Benson v. N. Alabama Radiopharmacy, Inc., ARB No. 2008-0037, ALJ No. 2006ERA-00017, slip op. at 2 (ARB May 27, 2010) (Order Denying Reconsideration) (quoting

Fed. R. Civ. P. 60(b)(2)); Smith v. Lake City Enters., Inc., ARB No. 2014-0063, ALJ No.

2006-STA-00032, slip op. at 3 (ARB Dec. 10, 2014), aff’d, Nos. 13-4342, 15-3071 (6th Cir.

Aug. 25, 2016).

Benson, ARB No. 2008-0037, slip op. at 2.

Id. (quoting Mitchell v. Shalala, 48 F.3d 1039, 1041 (D.C. Cir. 1995)).

the Record for Newly Discovered Evidence” to prove his competence as a pilot.67 But

Kossen’s employment history is not the subject of this case. Neither of the motions

proffer new evidence that satisfy the elements for reopening the record. And his

November 17, 2022 “Motion for Opening the Record for Newly Discovered Evidence,

Ruling on Previous Motions Filed by Kossen for Admittance of New Evidence and

Summary Judgment on Favor of Kossen” describes alleged equipment malfunctions

that were “presented to Kossen over a phone call the week of 11/6-11/22.”68 Kossen

has not explained how additional evidence of malfunctioning equipment would

change the outcome of his dismissal for performance and attitude problems.

B. Kossen’s Motion for the ALJ’s Recusal

Kossen asserts that the ALJ was biased against him because the ALJ did not

rule in his favor in a prior case and because the ALJ’s son is employed by an

airline.69 An ALJ may recuse themselves if their “impartiality might reasonably be

questioned” or they have “a personal bias or prejudice concerning a party.”70

Recusal generally is not warranted without “proof of an extra-judicial source of

bias,”71 and legal errors in ALJ orders are not sufficient to prove bias.72 ALJs are

“presumed to be impartial,” and a party moving for recusal has a “substantial

burden” to prove otherwise.73

Kossen has presented no evidence that the ALJ engaged in improper

behavior while adjudicating this matter. In contrast, the record indicates that the

ALJ went out of his way to ensure that Kossen was allowed to proceed in this

We note at the outset that Kossen, appearing before the ALJ and the Board pro se,

focused mainly on establishing his professional knowledge instead of the facts relevant to

his discharge. Empire, in response, presented evidence that its employees complained about

Kossen’s performance as a pilot. See, e.g., RX 3 and Tr. 434. The ALJ did not issue findings

of fact establishing Kossen’s general proficiency as a pilot, and such findings are

unnecessary for resolution of this matter.

Motion for Opening the Record for Newly Discovered Evidence, Ruling on Previous

Motions Filed by Kossen for Admittance of New Evidence and Summary Judgment on

Favor of Kossen at 1.

See, e.g., Comp. Br. at 94.

Vudhamari v. Advent Glob. Sols., ALJ No. 2018-LCA-00022, slip op. at 4-5 (ALJ Jan.

29, 2021) (citation omitted), adopted and attached, ARB No. 2021-0018 (ARB Apr. 26,

2021).

Vudhamari, ALJ No. 2018-LCA-00022, slip op. at 5.

Id. (quoting Matthews v. Ametek, Inc., ARB No. 2011-0036, ALJ No. 2009-SOX00026, slip op. at 3 (ARB May 31, 2012)).

Id. at 4 (referring to the Judicial Code) (quoting Billings v. Tennessee Valley Auth.,

ALJ No. 1991-ERA-00012, slip op. at 4 (ARB June 26, 1996)).

matter despite his failure to comply with the ALJ’s written orders and verbal

directions.74 We therefore re-affirm our February 25, 2021 ruling denying Kossen’s

request for the ALJ’s recusal.75

C. Kossen Alleges that the ALJ Erred in Denying Witness Testimony

Kossen also argues that the ALJ abused his discretion by not allowing Jack

Vandelaar, an experienced pilot and an adjunct professor at Embry-Riddle

Aeronautical University, to testify as an expert witness.76 We disagree. The ALJ

correctly concluded that Vandelaar’s opinions were irrelevant to Kossen’s

complaint.77 Kossen also contends that the ALJ erred by not allowing several

individuals to testify at his hearing.78 To the contrary, the ALJ informed Kossen of

See, e.g., March 26, 2021 Order Imposing Sanctions at 1-7 (“The Complainant, Mr.

Kossen, has repeatedly missed discovery and pre-hearing deadlines in this case, even after I

have given him multiple opportunities to comply. . . . Mr. Kossen did not file the required

pre-hearing statement listing disputed issues, the witnesses he intended to call at the

hearing, and the exhibits he intended to introduce at the hearing. . . . [H]e failed to appear

for properly-noticed deposition three times – the third time after assuring me directly in a

pre-hearing conference he would attend. . . . To be sure, Mr. Kossen is a self-represented

litigant. No one expects him to cite statutes or case law with professional fluency. But it

does not take professional training to keep one’s word, meet important deadlines, or to

share the details of one’s case when called upon appropriately to do so. What is more, Mr.

Kossen was (and is) represented by experienced counsel in Kossen v. Asia Pacific Airlines,

2019-AIR-00011, which went to hearing in February 2020; so he has experienced prehearing discovery and deadlines, as well as a contested hearing, with the assistance of

counsel once before. He should by now have some rudimentary appreciation for what to

expect.”).

Kossen, ARB No. 2021-0017 (ARB Feb. 25, 2021) (Order denying interlocutory

appeal).

Comp. Br. at 77.

D. & O. at 20 (“Without disrespecting Mr. Vandelaar’s experience in aviation, I

conclude he does not have specialized knowledge with respect to the facts of this case that is

helpful to deciding the issues before me. Daubert v. Merrell Dow Pharms., 509 U.S. 579

(1993); Madden v. U.S. Dep’t of Veterans Affs., 873 F.3d 971 (7th Cir. 2017). He essentially

heard Mr. Kossen’s version of the events, concluded it was true, and drew consistent

inferences from information Mr. Kossen gave him. Essentially, Mr. Vandelaar cast himself

in the role of trier of fact, rather than independent expert.”).

Comp. Br. at 57.

the requirements for presenting witnesses,79 and Kossen failed to follow the ALJ’s

instructions.80

CONCLUSION

For the reasons stated above, we AFFIRM the ALJ’s conclusion that Empire

did not violate AIR 21 by terminating Kossen’s employment because he engaged in

protected activity. Accordingly, Kossen’s complaint is DENIED.

SO ORDERED.81

__________________________________________

THOMAS H. BURRELL

Administrative Appeals Judge

_________________________________________

TAMMY L. PUST

Administrative Appeals Judge

_________________________________________

IVEY WARREN

Administrative Appeals Judge

See March 26, 2021 Order Imposing Sanctions at 8 (“Under the June 3, 2020, PreHearing Order, the pre-hearing statement must include: A list of the witnesses to be called

to testify, including each witness’s name and address with a summary of the testimony the

witness will provide, a precise statement of what the testimony will prove, and a detailed

explanation of the relevance of that testimony. General statements about the topics the

testimony will cover are not sufficient. A witness need not be disclosed to the extent that

disclosure would be privileged, in which case the privilege asserted shall be identified, and

the facts making the privilege applicable shall be stated.”).

Id. (“Mr. Kossen’s untimely Pre-Hearing Statement lists twelve witnesses. It does

not provide the addresses of any of them, and for eight of them it provides not a single word

about the witness’s expected testimony. Accordingly, those eight witnesses – Eric Herrle,

David Byrde, Brian Dolan, Jim Dickinson, Kenneth Kurr, Nathan Price, William Barrett,

and Gary Sharpe – will not be allowed to testify at the May 7, 2021, videoconference

hearing.”).

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

appropriately named party is the Secretary, Department of Labor, and not the

Administrative Review Board.

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.