U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

COLIN DeBUSE,

ARB CASE NO. 2023-0036

COMPLAINANT,

ALJ CASE NO. 2020-AIR-00015

ALJ SCOTT R. MORRIS

DATE: December 6, 2024

CORR FLIGHT S.

d/b/a NICHOLAS AIR,

RESPONDENT.

Appearances:

For the Complainant:

Gary Linn Evans, Esq., George Andrew Coats, Esq., and Ashley Ann

Sander, Esq.; Coats & Evans, P.C.; The Woodlands, Texas

For the Respondent:

Edwin S. Gault, Jr., Esq.; Forman Watkins & Krutz LLP; Jackson,

Mississippi; and Wendi Litton, Esq.; Nicholas Air; Oxford, Mississippi

Before THOMPSON and ROLFE, Administrative Appeals Judges

DECISION AND ORDER

ROLFE, Administrative Appeals Judge:

This case arises under the whistleblower protection provisions of the Wendell

H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21 or Act)

and is before the Administrative Review Board (ARB or Board) for the second time.1

49 U.S.C. § 42121 (amended 2020), as implemented by the regulations at 29 C.F.R.

Part 1979 (2024).

Complainant Colin DeBuse alleges, among other things, that Respondent Corr

Flight S. unlawfully retaliated against him in violation of AIR21’s whistleblower

protection provisions by suspending him without pay for engaging in protected

activity.

In its first decision, the Board vacated an ALJ’s award based on

Complainant’s reporting to his employer of a pilot’s inflight cockpit departure and

remanded for the ALJ to consider whether Complainant’s subsequent refusal to

train with the same pilot on future passenger flights constituted protected activity.

The Board tabled consideration of the remaining issues in the case pending the

resolution of that element. On remand, the ALJ held that the Act also protected

Complainant’s refusal to train with the pilot and reinstated his award.

Because substantial evidence supports the ALJ’s finding that Complainant

subjectively held an objectively reasonable belief that training with the pilot would

violate a Federal Aviation Administration (FAA) regulation prohibiting the reckless

operation of an aircraft -- and none of the other whistleblower elements remain at

issue concerning that protected activity -- we affirm the ALJ’s award.2

PROCEDURAL HISTORY

The posture of this case and the parties’ framing of the issues have

significantly narrowed the scope of our review. Complainant filed a complaint with

the U.S. Department of Labor’s Occupational Safety and Health Administration

(OSHA) alleging that Respondent violated AIR21 by first suspending him without

pay and then terminating his employment for engaging in protected activity.3 On

May 28, 2020, OSHA found that Complainant did not establish a reasonable cause

To prevail in a whistleblower 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. See, e.g., Dolan v. Aero Micronesia, Inc., ARB Nos. 2020-0006, -0008, ALJ No. 2018AIR-00032, slip op. at 4 (ARB June 30, 2021) (citation omitted). 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. Id.

Decision and Order Granting Relief (D. & O.) at 1.

to believe Respondent retaliated against him and dismissed the complaint.4

Complainant appealed.5

On December 8, 2021, the ALJ issued a mixed decision, finding that

Complainant’s protected activity of reporting the in-flight cockpit departure

contributed to his unpaid suspension, and that Respondent did not meet its burden

to establish an affirmative defense that it would have suspended Complainant

whether he reported it or not.6 But the ALJ further held that Respondent did prove

by clear and convincing evidence it would have terminated Complainant’s

employment absent any protected activity, and the ALJ awarded damages for the

unpaid suspension only.7

Respondent appealed the award based on the unpaid suspension.8 Notably,

Complainant did not cross-appeal his termination, and his termination is no longer

at issue.9

The Board on appeal vacated the award and remanded, finding, (as

Respondent had alleged), that the ALJ never “expressly found whether

Complainant’s refusal to train with [the pilot] was a protected activity.”10 But it

chose not to reach Respondent’s remaining argument that substantial evidence did

not support the ALJ’s finding that reporting the inflight cockpit departure

contributed to his suspension.11

Instead, the Board found the more efficient approach was to remand the case

and have the ALJ first determine each protected activity before examining the

Id.; Respondent’s Exhibit (RX) 1.

D. & O. at 1-2.

Id. at 32. The ALJ found that Respondent did meet its burden to show by clear and

convincing evidence that it would have terminated Complainant in the absence of his

protected activity. Id.

Id. at 36 ($2,703.34 in back pay, plus interest, and reimbursement of Complainant’s

litigation costs and attorneys’ fees and costs).

Decision and Order on Remand Granting Relief (D. & O. on Remand) at 2.

DeBuse v. Corr Flights S., ARB No. 2022-0019, ALJ No. 2020-AIR-00015, slip op. at

11 n.95 (ARB May 13, 2022) (ARB D. & O.).

Id. at 10.

Id.

remaining whistleblowing elements.12 It then instructed “[i]f the ALJ finds on

remand that Complainant’s refusal to train” with the pilot constituted protected

activity the “ALJ would then need to consider whether the refusal alone or together

with other protected activities contributed to Respondent’s decision to suspend him

without pay.”13

The ALJ on remand found the refusal to train constituted protected activity

and that it contributed “individually and in combination, to Respondent’s decision

to suspend him without pay[.]”14

Respondent’s only remaining arguments in this appeal exclusively dispute

the ALJ’s finding that Complainant’s refusal to train with the pilot constitutes a

protected activity. Respondent does not dispute that the refusal contributed to

Complainant’s unpaid suspension or claim that it would have suspended

Complainant regardless of his refusal.

And thus we arrive at the crux of this appeal. FAA regulations, among other

things, generally prohibit the operation of an aircraft “in a careless or reckless

manner” that “endanger[s] the life or property of another.”15 The sole remaining

issues for the purposes of this decision are whether Complainant subjectively

believed training with the pilot posed a safety risk that Complainant reported to

Respondent and, if so, whether his belief was objectively reasonable. The remaining

whistleblower elements regarding the refusal to train are not disputed.

BACKGROUND REGARDING THE FAILURE TO TRAIN

Complainant began working as a first officer pilot for Respondent, a pilot

management company, on or around October 15, 2018.16 Complainant possessed a

commercial pilot’s license and 2,600 hours of flight time but had little experience

piloting passenger flights.17 In September of 2019, he accepted an opportunity from

Id.

Id. at 10-11.

D. & O. on Remand at 9-10 (emphasis added).

14 C.F.R. § 91.13(b).

D. & O. at 3.

Id. at 7.

Respondent to receive training to become a qualified second in command for certain

types of passenger flights.18

On October 15, 2019, Complainant began an eight-day flight rotation with

Captain Stacey Lee on a Phenom 300 aircraft, a small jet with limited passenger

capacity.19 Complainant was to serve exclusively as an observer and was not

intended to have any official in-flight responsibilities.20

It did not go well. On October 16, 2019, they flew from St. Petersburg,

Florida, to Chicago, Illinois, and then to Las Vegas, Nevada.21 Before takeoff on the

leg from St. Petersburg to Chicago, the ALJ determined that Captain Lee returned

the plane to the ramp, disconnected the aircraft’s battery, and rebooted the

electronic system to fix an issue with the aircraft’s anti-skid system.22 Yet the ALJ

found Lee did not make a single logbook entry.23 Complainant expressed his view

that, under the circumstances, the plane was not safe to fly.24 The ALJ found,

however, that Lee nevertheless “received a ‘verbal communication from the

maintenance personnel’ it was ok to operate the aircraft,” disregarded

Complainant’s objections, and initiated take-off.25

Things did not improve in the air. At flight level, Captain Lee indisputably

left the cockpit.26 Complainant contends Lee talked with a passenger for a full

twenty to thirty minutes; Lee maintains he left for three or four minutes to use the

bathroom.27

Id. at 4.

Id. at 4 and 10 n.22.

Id. at 9.

Id.

Id. at 10.

D. & O. on Remand at 6 n.9.

Id.

Id.; D. & O. at 10.

D. & O. at 11.

Id. at 11-12. The parties stipulated that Captain Lee told Chief Pilot James that he

only stepped away for 3-4 minutes to use the restroom. Id. at 4.

The cockpit departure, however, was not Complainant’s only in-flight

concern. The ALJ determined the plane flew at or above 35,000 feet between two

and a half to three hours, and that Captain Lee knew that every minute at that

altitude required at least one qualified crew member to wear an oxygen mask.28 The

ALJ further determined that Lee also knew if he were to leave the controls at that

altitude the other pilot would be required to wear an oxygen mask.29 But the ALJ

found neither pilot ever donned a mask, and that Captain Lee never mentioned the

mask requirements -- including when he abandoned Complainant in the cockpit.30

After the plane landed, Complainant reported Captain Lee’s in-flight

behavior to dispatch, and his assigned manager, Respondent’s Chief Pilot, Nick

James.31 Complainant subsequently completed two additional flight rotations as an

observer with other pilots without incident.32

On November 1, 2019, however, Complainant received a text message from

Respondent advising his next flight training would be with Captain Lee or another

pilot.33 Complainant responded he would not fly with Captain Lee.34 Despite

Complainant’s refusal, Respondent nevertheless scheduled Complainant with

Captain Lee for flight instruction beginning November 26, 2019.35

On November 22, 2019, Complainant participated in a call to discuss the

issue with Director of Operations, Michael Prinzi, Jr. and Executive Vice President

of Operations, Fernando Pineda.36 Complainant told them that Captain Lee “left

him at the controls at 45,000 feet to go back and chit chat up [their] customer” and

that when he discussed Lee with Chief Pilot James, James questioned whether

Id. at 11-12.

Id. at 11 n.29.

Id. at 11-12.

Id. at 12-13.

Id. at 4.

Id. at 13.

Id. Captain Lee did not become a training captain until November 20, 2019; thus, he

was not a training captain during the October 16, 2019 flight. Id. at 15 n.51.

Id. at 4.

Id. at 14.

Complainant was capable of flying the aircraft in Lee’s absence.37 Complainant

responded he was “capable” but not “qualified” to fly the plane and that he had no

“faith” in an instructor “willing to break the rules in the air with a paying customer

on board.”38

Prinzi told Complainant he would talk to Captain Lee about his concerns but

insisted Complainant would still have to train with him.39 When Complainant again

refused, characterizing Captain Lee’s behavior as a safety issue, Pineda downplayed

his concerns.40

At this point, Chief Pilot James joined the call.41 It became heated. James

stated Captain Lee admitted leaving the cockpit to use the restroom but denied

talking with customers.42 When Complainant insisted that Lee was unsafe, James

became frustrated and accused Complainant of being the inferior pilot.43 Prinzi then

instructed Complainant that if he refused to fly with Lee he should resign.44

Complainant replied he would not resign but would instead fly with another

instructor.45 Pineda warned Complainant that Respondent would consider it a

resignation if he refused to fly with Captain Lee.46

Following the call, Prinzi discussed with the others whether to terminate

Complainant’s employment but decided against it at the time.47 Later the same day,

however, Prinzi sent Complainant an email with an “Employee Warning Letter”

attached that stated:

Id.

Decision and Order on Remand Granting Relief (D. & O. on Remand) at 7.

D. & O. at 14.

Id.

Joint Exhibit (JX) 4 at 6.

D. & O. at 14-15.

Id. at 15.

Id.

You participated in a conference call on 22 November 2019,

regarding your concern about being scheduled SIC flight

training with Capt. Lee the week of 25 November 2019.

You stated you were refusing to fly with Capt. Lee.

Consequence: Based on your refusal to fly with Capt.

Lee you will be placed on unpaid leave, effective 25

November 2019, until a simulator training date can be

established with CAE for the Phenom 300. This simulator

training will alleviate any concerns you have regarding

your future training with Capt. Lee. Plan for Improvement:

You will be scheduled for SIC simulator training at CAE at

the earliest opportunity.

Per Nicholas Air policy, a training agreement is required

for any employee who attends simulator training. You

must comply with this training agreement provision before

a simulator date can be scheduled. Consequence of Noncompliance: Grounds for termination and/or demotion.[48]

Prinzi asked Complainant to sign and return the Employee Warning Letter and, in

turn, Prinzi would schedule the training.49

On November 25, 2019, Complainant called Prinzi and informed him that he

had not received the training agreement.50 During their conversation, Complainant

again advised he would fly with another instructor, but refused to fly with Captain

Lee because he was “unsafe.”51 Shortly after the call, Prinzi emailed Complainant

the training agreement and reiterated that “[i]n order for us to put you in line for a

training slot, we need you to either accept or refuse our offer to continue training by

the end of the day Wednesday, November 27, 2019.”52

As of December 10, 2019, Complainant had not provided Respondent with a

signed copy of the training agreement or indicated whether he was going to sign the

Joint Exhibits (JX) 2 at 1 (emphasis added).

RX 10 at 1.

D. & O. at 16; RX 13 at 1.

RX 13 at 9-11.

D. & O. at 16; RX 7 at 1.

training agreement.53 And, on December 10, 2019, Respondent terminated his

employment.54

THE ALJ’S FINDINGS ON REMAND REGARDING THE REFUSAL TO TRAIN

The ALJ had little difficulty on remand concluding Complainant’s refusal to

fly with Captain Lee was protected activity. The ALJ noted the general FAA

regulation prohibiting the reckless operation of an aircraft, 14 C.F.R. § 91.13, as

well as regulations requiring pilots to refuse to operate unsafe planes or planes that

require two qualified pilots where only one qualified pilot is available.55 He then

found that Complainant’s conclusion that Captain Lee “had operated an aircraft in

a reckless manner -- and may well operate it in violation of regulations again -- was

both subjectively [held] and objectively reasonable.”56

The ALJ reasoned that Complainant’s concerns about Captain Lee leaving

the cockpit were justified and that Captain Lee’s “flagrant disregard for safety [was]

not to be taken lightly.”57 Moreover, the ALJ found it “perfectly reasonable for

Complainant to conclude that Captain Lee’s willingness to act in such an unsafe

manner would not be limited to that singular event.”58 The ALJ then summarily

rejected Respondent’s argument that Complainant’s concerns did not relate to a

safety issue and its argument that Complainant did not truly believe Captain Lee

was unsafe but was instead solely motivated by a personal dislike for Lee.59

Indeed, the ALJ found it “incredible that Respondent’s Vice President of

Operations and its Director of Operations would opine that it was not a safety issue

for the only pilot qualified to operate an aircraft [to leave] the cockpit while the

Id. at 16-17.

Id. at 17; Complainant’s Exhibit (CX) 7.

D. & O. on Remand at 5-6; see also 14 C.F.R. § 91.13(a) (“No person may operate an

aircraft in a careless or reckless manner so as to endanger the life or property of another.”);

14 C.F.R. §§ 135.3(b), 135.4(a)(1), 135.99(b), 135.101, 135.145(d) (explaining that a pilot

may refuse to fly an aircraft that requires two qualified pilots, when only one of the pilots is

qualified to operate the aircraft).

D. & O. on Remand at 5-6.

Id. at 5.

Id.

Id. at 8-9.

aircraft was above 35,000 feet, during a revenue flight.”60 He further found

“Respondent had other instructors that it could have paired with Complainant, yet

for some unknown reason chose to force this issue knowing full well Complainant’s

justified concerns about Captain Lee.”61 Finally, even if it were true (although the

ALJ did not find it was) that Complainant held a personal grudge towards Lee, the

ALJ still reasoned it “does not mean that legitimate safety concerns cannot co-exist

with any personal grievance.”62

The ALJ thus concluded “Complainant’s refusal to fly with Captain Lee,

including during training, was protected activity.”63 And since that protected

activity contributed “individually and in combination, to Respondent’s decision to

suspend him without pay,” and Respondent did not even attempt to allege it would

have suspended Complainant regardless of his refusal, the ALJ reinstated his prior

award.64

On appeal, Respondent again does not dispute that Complainant’s refusal to

fly with Captain Lee contributed to his suspension without pay or that it would

have suspended him regardless of his refusal. Instead, it solely repeats its prior

arguments that Complainant never sufficiently identified an imminent safety

violation and that Complainant’s concerns were neither subjectively held, because

they were motivated by a personal grievance instead of safety concerns, nor

objectively reasonable, because the ALJ did not weigh the facts the way it

suggested. Regardless, Respondent further alleges it addressed Complainant’s

concerns, eliminating any liability.

We, however, disagree -- on all points.

Id. at 8.

Id.

Id. at 9.

Id.

Id. at 10.

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 AIR21.65 In

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.66

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

as adequate to support a conclusion.”67 In addition, the Board generally defers to an

ALJ’s credibility findings “unless they are inherently incredible or patently

unreasonable.”68

DISCUSSION

To prevail in a whistleblower case under AIR21, complainants must prove by

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

the protected activity contributed to the adverse employment action taken against

them.69 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 protected activity.70

Here, Respondent does not, and cannot, dispute that it suspended

Complainant precisely because of his refusal to fly with Captain Lee: Complainant’s

suspension letter explicitly listed his refusal as the one and only factor in

Respondent’s decision. It thus categorically follows that his refusal contributed to

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).

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

at 30 (ARB Dec. 15, 2023) (citation omitted); Henrich v. Ecolab, Inc., ARB No. 2005-0030,

ALJ No. 2004-SOX-00051, slip op. at 7 (ARB June 29, 2006) (quoting Universal Camera

Corp. v. NLRB, 340 U.S. 474, 477 (1951) (citations omitted)).

Klinger v. BNSF Ry. Co., ARB No. 2023-0003, ALJ No. 2016-FRS-00062, slip op. at

5 (ARB July 23, 2024) (citations and internal quotations 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 (citation omitted).

49 U.S.C. § 42121(b)(2)(B)(iv); 29 C.F.R. § 1979.109(a); Dolan, ARB Nos. 2020-0006,

-0008, slip op. at 4-5 (citations omitted).

his suspension, and that Respondent cannot prove it would have suspended him

without that refusal. And because substantial evidence supports the ALJ’s finding

that refusing to fly with Captain Lee was a protected activity, we affirm the ALJ’s

decision.

1. Substantial evidence supports the ALJ’s decision Complainant engaged

in protected activity when he refused to fly with Captain Lee.

A complainant engages in protected activity if they:

[P]rovided, caused to be provided, or [are] about to provide

(with any knowledge of the employer) or cause to be

provided to the employer or Federal Government

information relating to any violation or alleged violation of

any order, regulation, or standard of the Federal Aviation

Administration or any other provision of Federal law

relating to air carrier safety . . . .[71]

Protected activity under AIR21, as a matter of law, has only two elements:

(1) the information the complainant provides must involve a purported violation of a

regulation, order, or standard of the FAA or federal law relating to air carrier

safety, though the complainant need not prove an actual violation; and (2) the

complainant’s belief that a violation occurred must be subjectively held and

objectively reasonable.72

Both elements are met here.

49 U.S.C. § 42121(a)(1) (amended 2020). In the Consolidated Appropriations Act,

2021 (CAA), Congress replaced the language about providing information “relating to air

carrier safety” to “relating to aviation safety.” 49 U.S.C. § 42121. The pre-amendment

language applies to the events in 2019 that gave rise to Complainant’s claim and therefore

we use the term “air carrier” herein. We note, however, that our analysis also applies to the

amended text.

49 U.S.C. § 42121(a)(1); McMullen v. Figeac Aero N. Am., ARB No. 2017-0018, ALJ

No. 2015-AIR-00027, slip op. at 4 (ARB Mar. 30, 2020).

A. Complainant sufficiently provided information relating to the violation of

an FAA regulation.

Before the ALJ, Complainant explained that he refused to fly with Captain

Lee because he witnessed Lee operating the aircraft in a manner that violated FAA

regulations -- which, among other things, generally prohibit the reckless operation

of an aircraft -- and that he was concerned that Lee would likely do so again.73 The

ALJ, in turn, found AIR21 both “protects employees who, in part, refuse to perform

work assignments they reasonably believe would cause them to violate aviation

safety regulations” or that “could reasonably result in a violation of aviation safety

regulations.”74

The ALJ then found Complainant repeatedly advised Respondent of his

legitimate safety concerns concerning Captain Lee, that AIR21 required no more,

and that Respondent’s assertion Complainant “communicated no safety concern”

was “disingenuous at best.”75 The ALJ therefore rejected Respondent’s argument

that the information Complainant provided did not sufficiently relate to an

imminent or likely future safety violation to be protected.76

Respondent on appeal repeats the same rejected argument. But it cites no

authority establishing AIR21 requires a particular degree of specificity regarding an

imminent violation such that Complainant’s numerous warnings do not suffice.77

And with good reason: the Board has repeatedly explained that “information only

has to be related to any violation or alleged [safety] violation” and that a

complainant need not wait “for an FAA violation to occur in order to report the

[safety concern] and have whistleblower protection.”78 Likewise, as a matter of

Complainant’s (Comp.) Post-Remand Brief (Br.) at 15-16.

D. & O. on Remand at 6 (emphasis in original).

Id. at 8.

Id. at 9.

D. & O. on Remand at 6 (AIR21 “does not require an aircraft accident to occur, or for

an actual violation of a regulation to occur, before protections are afforded to the

employee.”).

McMullen, ARB No. 2017-0018, ALJ No. 2015-AIR-00027, slip op. at 5 (emphasis

added).

settled law, AIR21’s “whistleblower statute does not require that protected activity

relate ‘definitively and specifically’ to a safety issue.”79

The ALJ thus correctly determined Complainant satisfied the standard by

repeatedly informing Respondent that he observed Captain Lee operating the

aircraft in an unsafe manner and further warning Respondent he was concerned

Lee would do so again in the future. Counter to Respondent’s argument, the ALJ

thus committed no error of law, and we affirm his finding.

B. Substantial evidence supports the ALJ’s determination Complainant

established he believed an FAA violation could reoccur if he flew with

Captain Lee.

To satisfy the subjective component, a complainant must simply “prove that

[they] held the belief in good faith.”80 The ALJ rationally determined Complainant

held his belief in good faith both by Complainant’s observations and his statements.

First, the ALJ permissibly credited Complainant’s observations of Captain

Lee’s behavior that shaped his view Lee was an unsafe pilot. Before they even took

flight on their first training run, Captain Lee returned the aircraft to the gate for a

number of corrective procedures, without making a single logbook entry -- which the

ALJ found likely violated FAA violations.81 Once in the air, the ALJ further found

Captain Lee left Complainant alone in the cockpit, despite the fact Complainant

was unqualified to fly the plane. During the same flight, Lee did not instruct

Complainant to wear an oxygen mask while he was away from the cockpit even

though he knew it was mandatory. As the ALJ determined, such “flagrant

disregard” for safety cannot “be taken lightly.” And it logically provides a sound

basis for Complainant’s subjective beliefs.

Petitt v. Delta Airlines, ARB No. 2021-0014, ALJ No. 2018-AIR-00041, slip op. at 13

(ARB Mar. 29, 2022) (citing Sewade v. Halo-Flight, Inc., ARB No. 2013-0098, ALJ No. 2013AIR-00009, slip op. at 8 (ARB Feb. 13, 2015)); see also Occhione v. PSA Airlines, ARB No.

2013-0061, ALJ No. 2011-AIR-00012, slip op. at 8 (ARB Nov. 26, 2014) (“more recent ARB

precedent as well as Fourth Circuit law leads us to conclude that this specificity standard is

inappropriate and inconsistent with the AIR 21 whistleblower statute.”).

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

op. at 5 (ARB Jan. 21, 2016) (citation omitted).

D. & O. on Remand at 6 n.9.

Second, the ALJ further found Complainant was far from shy in explicitly

telling Respondent on numerous occasions he regarded Captain Lee as an unsafe

pilot. Among several blunt examples, Complainant explicitly stated Captain Lee

“has no regard for the rules” and directly admonished Respondent’s management

that Captain Lee “is not a safe captain to fly with, he is hazardous, and I refuse to

fly with him.”82 Complainant never equivocated from that position, further

establishing he held his position in good faith.

Respondent does not dispute the content of Complainant’s statements,

focusing instead on the motivation behind them. It argues that a personal grievance

caused by their age differences and Captain Lee’s supervisory authority, not safety,

inspired Complainant’s objections.83 The ALJ rejected the argument below, finding

even if there was a mixed motive (without actually finding one), it would not

diminish Complainant’s safety concerns: “if animosity did exist here, it can be just

as likely that any justifiable grievance stems from being placed in an unsafe

situation[.]”84

We agree and reject Respondent’s contention that the ALJ erred. It is the

ALJ’s function to weigh the evidence and determine witness credibility.85 The ALJ

was well within his wide discretion in crediting Complainant’s testimony regarding

his beliefs, and those beliefs easily comport with the facts as the ALJ determined

them. Far from being inherently incredible, the ALJ’s crediting of Complainant’s

testimony is eminently reasonable. And because a reasonable person evaluating the

record could likewise find Complainant subjectively believed Captain Lee could

violate an FAA regulation, substantial evidence supports the ALJ’s decision. We

thus affirm it.86

Id. at 9.

Respondent (Resp.) Opening Br. at 22.

D. & O. on Remand at 9.

The ARB generally defers to an ALJ’s credibility determinations unless they are

“inherently incredible or patently unreasonable.” Mizusawa v. United Parcel Serv., ARB No.

2011-0009, ALJ No. 2010-AIR-00011, slip op. at 3 (ARB June 15, 2012) (quoting Jeter v.

Avior Tech. Ops., Inc., ARB No. 2006-0035, ALJ No. 2004-AIR-00030, slip op. at 13 (ARB

Feb. 29, 2008)), aff’d 524 F. App’x 443 (10th Cir. 2013).

Mazenko v. Pegasus Aircraft Mgmt., LLC, ARB No. 2021-0032, ALJ No. 2019-AIR00001, slip op. at 13-18 (ARB June 18, 2024) (reviewing the ALJ’s subjective belief findings

under the substantive evidence standard).

C. The ALJ rationally determined Complainant’s subjective belief was

objectively reasonable.

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

similar training and experience would hold.87 The ALJ demonstrably stated and

applied this standard below, and, as a threshold matter, we reject Respondent’s

cursory and unsupported allegation otherwise.88

Under this standard, the ALJ correctly found Complainant to be an

experienced professional pilot who holds a commercial pilot license.89 The ALJ

further permissibly found Complainant witnessed Captain Lee displaying a

“flagrant disregard for safety” based on his pre-flight and in-air activities on the one

flight they piloted together.90 It thus was reasonable for the ALJ to determine a

similarly situated pilot with comparable experience, training, and observations

would have harbored the same beliefs regarding Captain Lee.

Respondent on appeal does not point to any overt legal or factual error in

those findings. Instead, it merely bullet points a list of facts it contends the ALJ

should have given more weight. Respondent’s sole argument thus amounts to a

simple request to reweigh the evidence, which is beyond our authority under our

substantial evidence standard of review of AIR21 cases. The relevant evidence is

such that a reasonable mind can find it adequate to support the ALJ’s conclusion.

No more is required.91

Forrand v. Fedex Express, ARB No. 2019-0041, ALJ No. 2017-AIR-00016, slip op. at

4 (ARB Jan. 4, 2021) (citation omitted).

On appeal, Respondent argues the ALJ applied an incorrect standard for objective

reasonableness. Resp. Opening Br. at 26. But the ALJ applied the correct standard for

objectivity by considering whether a person of similar training and experience would hold

the same belief of a violation.

D. & O. at 7.

D. & O. on Remand at 5.

The Board “must uphold an ALJ’s factual finding that is supported by substantial

evidence even if there is also substantial evidence for the other party, and even if we ‘would

justifiably have made a different choice had the matter been before us de novo.’” Sharpe v.

Supreme Auto Transp., ARB No. 2017-0077, ALJ No. 2016-STA-00073, slip op. at 5 (ARB

Dec. 23, 2019) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)); see

also Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (“[T]he threshold for [substantial evidence]

is not high . . . . It means—and means only—such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”) (internal citations and quotations

omitted)); Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013) (“It may well be

Substantial evidence supports the ALJ’s finding that Complainant

established his subjective belief was objectively reasonable. We therefore affirm it.

D. Protected activity is not rendered unprotected simply because the employer

addresses the complained of condition or situation.

Finally, we reject Respondent’s argument that even if Complainant’s refusal

constituted protected activity, the refusal lost its protected status once Respondent

addressed his concerns.92 Respondent misinterprets the law.

The plain language of the AIR21 protects complainants without regard to an

employer’s corrective measures.93 All the Act requires is that a person provide

“information relating to any violation or alleged violation of any order, regulation,

or standard of the Federal Aviation Administration or any other provision of

Federal law relating to air carrier safety[.]94 The Board has thus unambiguously

held that protected activity does not lose its status if the employer simply addresses

or corrects the issue. Instead, if the complainant “demonstrates a reasonable belief

at the time he made the complaints, his complaints are protected[.]”95 As we have

established, Complainant did so here.

Respondent’s cited authority does not change this analysis. In support of its

argument, Respondent generally points to Pensyl v. Catalytic, Inc.96 and Sitts v.

Comair, Inc.97 Respondent broadly claims -- without providing any context -- that

Pensyl, a case that arose under the Energy Reorganization Act of 1974 (ERA),

stands for the universally broad proposition that “’[r]efusal to work loses its

protection after the perceived hazard has been investigated by responsible

that reasonable minds would disagree as to [the finding], but it is clear from the record that

the ALJ . . . simply reached a conclusion, supported by substantial evidence . . . .”).

Resp. Opening Br. at 26-27.

See 49 U.S.C. § 42121(a)(1).

Id.

Halliday v. Transp. Express, Inc., ARB No. 2023-0024, ALJ No. 2020-STA-00067,

slip op. at 17 (ARB Oct. 7, 2024).

Pensyl v. Catalytic, Inc., No. 1983-ERA-00002 (Sec’y Jan. 13, 1984).

Sitts v. Comair, Inc., ARB No. 2009-0130, ALJ No. 2008-AIR-00007 (ARB May 31,

2011).

management officials’ and the refusing employee is made aware.”98 It likewise

baldly claims that Sitts establishes that when a pilot “expresses a [specific and

subjectively and objectively reasonable] safety concern that relates to the aircraft,

and that safety concern is not addressed by the company, the refusal to work

remains protected activity.”99

But Respondent does not provide any context for the untethered language it

cites. And the relevance of those two cherry-picked quotes does not survive a

cursory review of the cases, which are readily distinguishable.

Pensyl concerned the clean-up of Three Mile Island nuclear plant where the

workers were informed they could no longer wear respirators when working in

contaminated areas. 100 After a meeting to address concerns, management decided

the workers would temporarily be allowed to voluntarily wear the respirators. 101

The workers were later counseled by the Nuclear Regulatory Commission (NRC) on

why the respirators were detrimental and disallowed.102 Pensyl’s employment

nevertheless was, at some point, terminated for refusing to work without a

respirator.103

But the Secretary did not announce the broad exculpatory rule Respondent

claims it did in response. It instead remanded the case to the ALJ to determine

basic facts about the timing of the termination, the nature of the NRC investigation,

how the results were communicated and received, the content of the counseling the

employees received, and how employee concerns were addressed.104 Only after all of

those material facts were determined could it be established whether Pensyl was

justified at the time of his refusal to work. The case simply has no relevance here

where the ALJ had all the relevant facts he needed to determine Complainant

subjectively held an objectively reasonable belief in a safety violation at the time he

reported it.

Resp. Opening Br. at 26 (citing Pensyl, No. 1983-ERA-00002, slip op. at 3).

Id. at 26-27 (citing Sitts, ARB No. 2009-0130, slip op. at 15-16 (internal quotations

omitted)).

100

Pensyl, No. 1983-ERA-00002, slip op. at 1.

101

Id.

102

Id. at 2.

103

Id.

104

Id. at 3.

Sitts, in turn, fully supports the ALJ’s decision here. Sitts refused to pilot an

aircraft with what he considered to be a faulty mechanism that regulated the

opening and closing of the passenger cabin door.105 The ALJ concluded, and the

Board affirmed, that the employer’s subsequent “efforts to convince Sitts that

working conditions were safe were insufficient to undermine the continuing

reasonableness of Sitts’ safety concerns” and therefore “Sitts’ activity did not lose its

protected status at any time.”106 So too here: Respondent’s subsequent efforts to

undermine Complainant’s concerns after he made them does not cause his activity

to lose protected status.

The plain text of 49 U.S.C. § 42121 protects complaints even if the employer

subsequently addresses and remedies the concerns; Complainant’s refusal to train

with Captain Lee did not lose its protected status because Respondent’s

management advised they simply discussed or would discuss Complainant’s

concerns with Captain Lee.107

105

Sitts, ARB No. 2009-0130, slip op. at 7-8.

106

Id. at 16.

To be sure, in circumstances not at issue here, adequately addressing a

complainant’s concerns may render subsequent complaints unreasonable. But even in those

circumstances, the resolution does not render the original concerns unprotected.

Regardless, the recording of the November 22, 2019 phone conference in this case supports

the ALJ’s finding that “conduct by Respondent’s management telegraphed to Complainant

that management did not seriously consider this a safety issue” and Complainant “rightly

had skepticism about the extent to which Respondent’s management might ‘talk to’ Captain

Lee to ameliorate the problem.” D. & O. on Remand at 8.

107

CONCLUSION

Substantial evidence supports the ALJ’s finding that Complainant engaged

in protected activity when he refused to train with Captain Lee. Because

Respondent does not appeal the ALJ’s determination that Complainant’s refusal

contributed to the unpaid suspension, and Respondent did not meet its burden to

establish that it would have suspended Complainant without pay in the absence of

his refusal, we AFFIRM the ALJ’s decision and order on remand.

SO ORDERED.

____________________________________

JONATHAN ROLFE

Administrative Appeals Judge

____________________________________

ANGELA W. THOMPSON

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.