Administrative Review Board

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

DANIEL FORRAND,

ARB CASE NO. 2019-0041

COMPLAINANT

v.

ALJ CASE NO. 2017-AIR-00016

DATE: January 4, 2021

FEDEX EXPRESS,

RESPONDENT.

Appearances:

For the Complainant:

Daniel Forrand; pro se; Castiac, California

For the Respondent:

Jamie Chu, Esq.; Federal Express Corporation; Irvine, California

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

Haynes and Randel K. Johnson, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. This matter arises under the employee protection provision of

the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR

21).1 Complainant filed a complaint with the Occupational Safety and Health

Administration (OSHA) on November 16, 2015, alleging that Respondent retaliated

against him in violation of the whistleblower protection provisions of AIR 21. The

complaint was amended on December 4, 2015, March 14, 2016 and April 4, 2016.

After an investigation, OSHA dismissed the complaint on March 7, 2017.

Complainant filed a complaint with the Office of Administrative Law Judges on

49 U.S.C. § 42121 (2000). AIR 21’s implementing regulations are found at 29 C.F.R.

Part 1979 (2018).

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March 29, 2017. Respondent moved for summary decision, which was granted in

part on November 3, 2017. A hearing was held November 13-16, 2017. On January

27, 2019, the Administrative Law Judge (ALJ) issued a Decision and Order Denying

Relief (D. & O.).2 Complainant filed a petition requesting that the Administrative

Review Board (ARB or the Board) review the D. & O. We affirm the ALJ’s decision.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the Administrative Review

Board to issue agency decisions in this matter.3 In AIR 21 cases, the ARB reviews

questions of law presented on appeal de novo and reviews the ALJ’s factual findings

under the substantial evidence standard.4 The Board reviews an ALJ’s

determinations on procedural issues under an abuse of discretion standard,

examining whether the ALJ abused his power to preside over the proceedings in

ruling as he did.5

DISCUSSION

In the D. & O., the ALJ found that Complainant engaged in one instance of

protected activity and suffered one adverse action, but that Complainant’s protected

activity was not a contributing factor to the adverse action. The ALJ further found

that Complainant was not subjected to a hostile work environment. Upon thorough

review of the record and the D. & O., we hold that the ALJ properly concluded that

the Complainant was not a victim of retaliation, and was not subjected to a hostile

work environment.

The ALJ’s decision provides a thorough summary of events, which we will not

repeat here. We will, however, address Complainant’s arguments on appeal and

clarify both Complainant’s protected activity and the ALJ’s analysis of the hostile

work environment claim.

On appeal, Complainant argues, first, that the ALJ erred by omitting

evidence related to his prior complaints, second, that the ALJ’s factual findings are

not supported by substantial evidence, and finally, that he was the victim of

retaliation by his employer. Complainant also raises issues that are outside the

2

D. & O. at 1.

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

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

decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020).

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29 C.F.R. § 1979.110(b).

Hoffman v. Netjets Aviation, Inc., ARB No. 2009-0021, ALJ No. 2007-AIR-00007, slip

op. at 14 (ARB Mar. 24, 2011).

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Board’s authority to address, including an allegation of racketeering. We do not

address any matters outside of the Board’s jurisdiction.

1. Evidentiary Rulings

As a preliminary matter, we address Complainant’s argument that the ALJ

should have admitted into evidence two settlement agreements which the ALJ

excluded below. Although the ALJ did not admit the agreements into evidence, the

ALJ liberally allowed relevant testimony regarding the events at issue in and the

substance of all matters covered by the agreements. Upon reviewing the record, we

find that the ALJ did not abuse his discretion by excluding the two pieces of

evidence.

2. AIR 21 Whistleblower Retaliation

To establish a case of retaliation under AIR 21, a Complainant must

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

activity; (2) he suffered an unfavorable personnel action; and (3) his protected

activity was a contributing factor to the adverse action.6 Once the Complainant

establishes these elements, the burden shifts to the Respondent to show, by clear

and convincing evidence, that it would have taken the same unfavorable

employment action in the absence of the protected activity.7

A. Protected Activity

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

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

or standard of the FAA or federal law relating to air carrier safety, though the

complainant need not prove an actual violation; and (2) the complainant’s belief

that a violation occurred must be subjectively held and also objectively reasonable.8

The information provided to the employer or federal government must be specific in

relation to a given practice, condition, directive, or event that affects aircraft

Sewade v. Halo-Flight, Inc., ARB No. 2013-0098, ALJ No. 2013-AIR-00009, slip op.

at 6 (ARB Feb. 13, 2015) (citing 49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R. § 1979.109(a)).

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

Hindsman v. Delta Air Lines, Inc., ARB No. 2009-0023, ALJ No. 2008-AIR-00013,

slip op. at 5 (ARB June 30, 2010). We note the obvious fact that the text of the statute

directs us to consider whether the safety of the flying public is, or might be, enhanced by

the whistleblower’s behavior. Air 21 is not a general remedy for employment grievances

unrelated to air safety.

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safety.9 A complainant’s belief is objectively reasonable if it is one that a person of

similar training and experience would hold.10

Of note on appeal are two instances of alleged protected activity. The ALJ

found that Complainant engaged in only one instance of protected activity, while we

find that Complainant actually engaged in two additional instances of protected

activity, for a total of three.11 The ALJ’s findings related to all other instances of

protected activity alleged by Complainant are consistent with the law and

supported by substantial evidence.

i. October 2015 E-mail Regarding Elevator Policy Change

In October 2015, Respondent issued a policy to avoid damage to plane doors

by moveable elevators. The policy was issued to all employees in Complainant’s

position and required that they contact their managers before moving an elevator.

Complainant did not like the way the policy change was worded. As a result, he

emailed his supervisor with some of the wording altered. Complainant said he

thought the policy’s original language conflicted with its intent. Management

altered the wording of the policy to improve clarity, based on Complainant’s

feedback.12

While the ALJ discussed the events of this policy in the adverse action

portion of his decision, he failed to identify or consider it as protected activity.

Complainant’s e-mail to his supervisor about the policy is protected activity because

it relates to protecting the airplane’s doors and, obviously, to air safety. The

Complainant’s subjective belief and objective reasonableness of that belief are

undisputed because Respondent accepted Complainant’s suggestion and took action

in response to it. Thus, it was protected activity.

ii. April 4, 2016 Printing Documents during Visit to Burbank Facility

Complainant visited Respondent’s Burbank facility when he was in the area

for personal reasons. While there, he printed documents to supply to OSHA. The

ALJ held that this was not protected activity because Complainant’s “individual

steps” of printing the documents were not discreet protected activity under the

Id.; see also Burdette v. ExpressJet Airlines, Inc., ARB No. 2014-0059, ALJ No. 2013AIR-00016, slip op. at 5-6 (ARB Jan. 21, 2016).

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10

Burdette, ARB No. 2014-0059, slip op. at 5.

As we affirm the ALJ’s conclusion that Complainant was not retaliated against for

his protected activity, the ALJ’s error is harmless.

11

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D. & O. at 11-13.

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Act.13 This is correct as far as it goes, but AIR 21 protects an employee from

retaliation when the employee is “about to provide” any information about an

alleged violation of Federal law related to air safety.14 The Board has held that “an

employee engages in protected activity if he attempts to provide information of

retaliation that violates AIR 21.”15 In this instance, Complainant printed

documents. In printing the specific documents he did, Complainant was “about to

provide” relevant information for his AIR 21 complaint, which concerned an alleged

violation of Federal law related to air safety. Complainant therefore engaged in

protected activity.16

B. Adverse Action

AIR 21 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.17 It is illegal “to intimidate,

threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate

against any employee” who engages in protected activity.”18 The Board has said that

adverse action may also include firing, failure to hire or promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.19 An adverse action is “more than trivial” when it is “materially adverse” so

as to “dissuad[e] a reasonable worker” from protected activity.20

Of note on appeal is one allegation of adverse action that the ALJ omitted—

an allegation by Complainant that Respondent surveilled him or threated him.

According to Complainant, his supervisor told him to “be careful, they are watching

you.” Respondent claims it was difficult to tell if Complainant was wearing the

correct safety gear on his head because he was wearing a hat, which prompted the

comment. Subsequently, Complainant met with another manager about the

conversation and said he felt threatened. The manager assured Complainant that

he was not under surveillance. Afterwards, Complainant filed a workplace violence

13

D. & O. at 45.

14

49 U.S.C. § 42121(a)(1).

Benjamin v. Citationshares Mgmt., L.L.C., N/K/A Citationair, ARB No. 2012-0029,

ALJ No. 2010-AIR-00001, slip op. at 8 (ARB November 5, 2013).

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The error is harmless because Complainant was not subject to retaliation.

17

49 U.S.C. § 42121(a)(1).

18

29 C.F.R. § 1979.102(b).

Hirst v. Southeast Airlines, Inc., ARB Nos. 2004-0116, 0160, ALJ No. 2003-AIR00047, slip op. at 9 (ARB Jan. 31, 2007).

19

Zavaleta v. Alaska Airlines, Inc., ARB No. 2015-00080, ALJ No. 2015-AIR-00016,

slip op. at 11 (ARB May 8, 2017).

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complaint.21 The ALJ did not address this alleged adverse action specifically in his

opinion, although he did make credibility findings on the relevant events. We find

that a supervisor’s comment of this kind, without more, is not an adverse action.

The ALJ’s analysis related to all other alleged adverse actions, including his

finding that the Complainant suffered an adverse action when he was issued an

Online Compliment and Counseling for sending unprofessional e-mails, is supported

by substantial evidence and is consistent with the law.

C. Contributing Factor

We do not address the contributing factor analysis because the ALJ’s holding

is supported by substantial evidence and consistent with the relevant law.

D. Hostile Work Environment

Our final issue is Complainant’s hostile work environment claim. To prevail,

Complainant must prove that: 1) he engaged in protected activity; 2) he suffered

intentional harassment related to that activity; 3) the harassment was sufficiently

severe or pervasive so as to alter the conditions of employment and to create an

abusive working environment; and 4) the harassment would have detrimentally

affected a reasonable person and did detrimentally affect the complainant.22

Proving a hostile work environment is a high bar. Discourtesy or rudeness is

not harassment, nor are the ordinary tribulations of the workplace, such as sporadic

use of abusive language, joking about protected status or activity, and occasional

teasing.23 Relevant circumstances to consider in assessing whether conduct

amounts to a hostile work environment include “the frequency of the discriminatory

conduct; its severity, whether it is physically threatening or humiliating, or a mere

offensive utterance, and whether it unreasonably interferes with an employee’s

work performance.”24

Complainant argues that the circumstances that gave rise to his earlier AIR

21 complaints, combined with the ongoing incidents detailed in his complaint,

21

D. & O. at 17-18.

Brune v. Horizon Air Industries, Inc., ARB No. 2004-0037, ALJ No. 2002-AIR-00008,

slip op. at 10-11 (ARB Jan. 31, 2006) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).

22

23

Brune, ARB No. 2004-0037, slip op. at 11.

24

Id.

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create a hostile work environment.25 In addition to the incidents the ALJ addressed

in his decision and the additional incidents the Board has outlined above,

Complainant alleges that smaller events in the workplace contributed to the

harassment. For example, as a part of the conversation with Complainant regarding

safety gear, his supervisor told Complainant that he should be an inspector, which

would require a transfer to a department where Complainant had a prior negative

history. Another time, Complainant asked for a cab ride home because he was

upset, a manager offered to drive him instead, and Complainant felt threatened.

Complainant cites other examples. In sum, he argues his employer has retaliated

against him in ways both large and small, and that the alleged retaliation is

sufficiently pervasive to create a hostile work environment.

The ALJ correctly held that Complainant failed to prove that he was subject

to a hostile work environment. He held that Complainant only satisfied the first

prong—engaging in protected activity—of the four prong test. However, the ALJ

failed to specifically acknowledge the smaller incidents Complainant alleged.

Because a hostile work environment is an alternative theory of relief, those small

incidents should be noted and given consideration. Despite a less than complete

analysis, the ALJ’s conclusion is sound—Complainant makes no allegations that

amount to a sufficiently severe and pervasive harassment. The ALJ’s conclusion

here, as elsewhere, is supported by substantial evidence and is consistent with the

law.26

CONCLUSION

Accordingly, we AFFIRM the ALJ’s Decision and Order Denying Relief.

SO ORDERED.

The ALJ held that the earlier instances of retaliation were not raised in a timely

manner.

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The ALJ’s failure to acknowledge these more minor incidents in his analysis

constitutes harmless error.

26