U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

KARLENE PETITT,

COMPLAINANT,

v.

ARB CASE NO. 2021-0014

ALJ CASE NO. 2018-AIR-00041

DATE: September 26, 2022

DELTA AIRLINES, INC.,

RESPONDENT.

Appearances:

For the Complainant:

Lee Seham, Esq. and Nicholas Granath, Esq.; Seham, Seham, Meltz &

Petersen, LLP; White Plains, New York

For the Respondent:

Ira G. Rosenstein, Esq. and Lincoln O. Bisbee, Esq.; Morgan, Lewis &

Bockius LLP; New York, New York

Before BURRELL, GODEK, and PUST, Administrative Appeal Judges;

BURRELL, Administrative Appeals Judge, concurring

ORDER DENYING MOTION FOR CLARIFICATION, OR IN THE

ALTERNATIVE, PETITION FOR APPEAL

GODEK, Administrative Appeals Judge:

This matter arises under the employee protection provision of the Wendell H.

Ford Aviation Investment and Reform Act for the 21st Century1 (AIR 21), and its

1

49 U.S.C. § 42121.

2

implementing regulations.2 In a complaint filed with the Department of Labor’s

Occupational Safety and Health Administration (OSHA), Karlene Petitt

(Complainant) alleged that Delta Airlines, Inc. (Respondent) unlawfully

discriminated against her in violation of AIR 21’s whistleblower protection

provisions. On December 20, 2020, an Administrative Law Judge (ALJ) issued a

Decision and Order Granting Relief, and awarded front pay damages, back pay

damages, compensatory damages, and ordered Respondent to publish the decision.

Respondent timely appealed the ALJ’s decision to the Administrative Review Board

(ARB or Board).

On March 29, 2022, the Board affirmed the ALJ’s decision on the merits and

the award of back pay damages. The Board remanded the case for further

proceedings after vacating the award of front pay damages as legal error and

vacating the award of compensatory damages for lack of evidentiary support.3 The

Board held that the ALJ’s front pay award was equivalent to an award of future lost

earnings and based on mere speculation as to Complainant’s damage to her

reputation which was insufficient to support an award of future lost earnings.4 The

Board noted that “[o]n remand, the ALJ may reopen the record to determine

whether Complainant can prove that Respondent’s violation of AIR 21 caused lost

future earnings.”5 As for the award of compensatory damages, the Board found that

the ALJ’s award of $500,000 was unsupported by the evidence in the record.6 The

Board “instruct[ed] the ALJ on remand to reconsider this award in light of other

cases with similar characteristics as Complainant’s. . . .” 7 In reconsidering the

amount of the compensatory damages on remand, the Board provided that “the ALJ

may reopen the record to take additional evidence on Complainant’s emotional

distress, humiliation, and loss of reputation as a result of Respondent’s adverse

action taken against her after engaging in protected activity.”8

On July 18, 2022, Respondent submitted to the Board a Motion for

Clarification of the Board’s Remand Order, or in the Alternative, Petition for Appeal

Pursuant to the Collateral Issue Doctrine, and Motion to Stay Post-Remand

Proceedings Before the Tribunal. Respondent contends that clarification is

necessary because the ALJ on remand has interpreted the Board’s Order of Remand

2

29 C.F.R. Part 1979 (2021).

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

Mar. 29, 2022) (Order of Remand).

3

4

Id. at 23.

5

Id.

6

Id. at 26-27.

7

Id. at 27.

8

Id.

3

as permitting Complainant to potentially recover damages for completely new

claims of retaliation. In her response opposing Respondent’s motion, Complainant

argues that clarification is unnecessary because her discovery requests have been

within the scope of the Board’s Order of Remand, and neither she nor the ALJ are

confused about the Board’s directives on remand.

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

of ALJ decisions under AIR 21.9 This includes the discretion to consider

interlocutory appeals “in exceptional circumstances, provided such review is not

prohibited by statute.”10 Interlocutory appeals are generally disfavored given the

strong policy against piecemeal appeals.11

Upon consideration of Respondent’s motion, Complainant’s discovery

requests, and the ALJ’s subsequent orders regarding discovery, the Board concludes

that Respondent’s motion requesting clarification or a review of the ALJ’s discovery

orders does not warrant the Board’s review. The Board’s Order of Remand is not

vague or ambiguous, and the ALJ’s orders appear to be in accordance with the

Board’s directives on remand. Because the ALJ has not expressed any confusion

over the Board’s directives on remand, the Board concludes a clarification of the

Board’s Order is unnecessary. We also consider Respondent’s concerns to be

speculative, and, therefore, we conclude they do not present the type of exceptional

circumstance that justify the Board’s discretionary interlocutory review or

intervention.

Accordingly, Respondent’s Motion for Clarification of the Board’s Remand

Order, or in the Alternative, Petition for Appeal Pursuant to the Collateral Issue

Doctrine, and Motion to Stay Post-Remand Proceedings Before the Tribunal is

DENIED.

SO ORDERED.

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).

9

10

Id.

See Turin v. AmTrust Fin. Servs., Inc., ARB No. 2017-0004, ALJ No. 2010-SOX00018, slip op. at 4 (ARB Apr. 20, 2017) (Decision and Order Dismissing Interlocutory

Appeal).

11

5

should not reopen the record to conduct any additional discovery.15 Respondent

asked the ALJ for a protective order on matters regarding discovery and

depositions, which was denied for the most part.

DISCUSSION

As we noted in our prior order of remand, front pay and loss of future earning

capacity are separate remedies.16 As a form of make-whole relief, employment law,

including AIR 21, prefers reinstatement of the employee.17 In cases where

reinstatement is not feasible, courts may award forward-looking pay in the form of

front pay.18 Reinstatement and front pay are alternates.19 Generally, a court’s order

of reinstatement and front pay together would constitute a double recovery.20

Accordingly, the ARB vacated the ALJ’s award of front pay because Complainant

was restored to the job with the same pay and terms of employment.21

The ARB noted Complainant’s theory appeared to be an attempt to argue loss

of future earning capacity.22 Damages for impaired future earning capacity are

generally awarded in tort suits when a plaintiff’s physical injuries diminish his

earning power.23 Courts have also awarded loss of future earning capacity in

employment cases.24 The tort of loss of future earning capacity is based on the

diminished capacity to earn, not on individual instances of lost earnings in the

15

Id.

16

Petitt, ARB No. 2021-0014, slip op. at 21 (ARB Mar. 29, 2022).

17

49 U.S.C. § 42121(b)(3)(B)(ii).

Ass’t Sec’y of Lab. for Occupational Safety and Health & Bryant v. Mendenhall

Acquisition Corp., ARB No. 2004-0014, ALJ No. 2003-STA-00036, slip op. at 8 (ARB June

30, 2005).

18

Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 846 (2001); Berkman v. U.S.

Coast Guard Acad., ARB No. 1998-0056, ALJ Nos. 1997-CAA-00002, -00009, slip op. at 27

(ARB Feb. 29, 2000).

19

Teutscher v. Woodson, 835 F.3d 936, 954 (9th Cir. 2016); Selgas v. Am. Airlines, Inc.,

104 F.3d 9, 13 (1st Cir. 1997) (explaining that a district court’s discretion to craft an

equitable remedy is limited by the need “to avoid duplication”).

20

21

Petitt, ARB No. 2021-0014, slip op. at 22 (ARB Mar. 29, 2022).

22

Id. at 22-23.

Gorniak v. Nat’l R.R. Passenger Corp., 889 F.2d 481, 484 (3d Cir.1989) (FELA suit

by railroad employee).

23

Teutscher, 835 F.3d at 957; Williams v. Pharmacia, Inc., 137 F.3d 944, 953-54 (7th

Cir. 1998).

24

6

future.25 The scope of the remedy is evaluated from the perspective of the time of

the injury.26 The RESTATEMENTS (SECOND) OF TORTS provides as follows:

The extent of future harm to the earning capacity of the injured

person is measured by the difference, viewed as of the time of

trial, between the value of the plaintiff’s services as they will be

in view of the harm and as they would have been had there been

no harm.[27]

An employer’s full reinstatement of an employee to prior pay, terms, and

conditions of employment might constitute prima facie evidence of comparable

earning capacity.28 Though, this is not necessarily the case, especially if the injury

took place early in a career. An employee reinstated to the same job with the same

pay can still prove loss of future earning capacity when evidence shows the

employee is locked in or cannot obtain future advances reasonably probable.29

JACOB A. STEIN, 2 STEIN ON PERSONAL INJURY DAMAGES TREATISE § 6.3 (3d ed. 2022

update); Monias v. Endal, 330 Md. 274, 623 A.2d 656 n.4 (1993) (“We should note that we

are dealing with future loss-of-earnings damages, rather than future loss-of earningcapacity damages. There is a distinction between loss of earnings and loss of earning

capacity”).

25

26

The Supreme Court in Sea-Land Servs. v. Gaudet stated that:

Under the prevailing American rule, a tort victim suing for damages

for permanent injuries is permitted to base his recovery on his

prospective earnings for the balance of his life expectancy at the time

of his injury undiminished by any shortening of that expectancy as a

result of the injury.

414 U.S. 573, 594 (1974) (internal quotation omitted). “[I]t is necessary, in order to

ascertain [lost earning capacity] damages, to determine the plaintiff’s pre-tort life

expectancy and pre-tort work-life expectancy because it is pre-tort expectancies, not posttort, that are relevant to the computation of lost earning capacity.” 2 STEIN ON PERSONAL

INJURY DAMAGES, supra note 25, at § 6.3 n.14 and accompanying text.

27

RESTATEMENT TORTS (2d) § 924, comment (d) (1979) (May 2022 update).

Reed v. Union Pac. R.R. Co., 185 F.3d 712, 718 (7th Cir. 1999) (Illinois law);

Rasinski v. McCoy, 227 So. 3d 201, 204 (Fla. 5th Dist. Ct. App. 2017) (Florida law) (finding

insufficient evidence to compensate motorist for loss of future earning capacity where

motorist continued to work in industry after the accident at the same hourly pay and any

testimony as to loss of future earnings or job security was pure speculation).

28

Wilburn v. Maritrans GP Inc., 139 F.3d 350, 362 (3d Cir. 1998) (plaintiff need not

show loss of earnings to show loss of earning capacity; plaintiff can recover if plaintiff

proves severe diminution in ability to earn in the future, to change jobs, or to advance along

expected career path).

29

7

As with other forms of forward pay, there is some speculation in an award of

loss of future earning capacity. The more objective the evidence, the less speculative

the remedy.30 To recover for lost earning capacity, a plaintiff must produce

“competent evidence suggesting that his injuries have narrowed the range of

economic opportunities available to him . . .. [A] plaintiff must show that his injury

has caused a diminution in his ability to earn a living.”31 Plaintiff may testify as to

aspects of job, work-life expectancy, and reasonable prospects for promotion or

future increases if such prospects are likely or probable.32 A plaintiff’s proof of loss

of future earning capacity may involve some uncertainty but must refrain from

crediting purely speculative conjecture.33 Expert testimony will be helpful.34

Respondent also disputes the ALJ’s characterization of the ARB’s order to

reopen the record. The ARB’s Order of Remand did not order the ALJ to reopen the

record but left the decision with the ALJ’s discretion. The ARB wrote:

On remand, the ALJ may reopen the record to take additional evidence

of the Complainant’s emotional distress, humiliation and loss of

2 STEIN ON PERSONAL INJURY DAMAGES, supra note 25, § 6.6 (“The admission of

evidence to prove the plaintiff’s future earning capacity may include evidence that would

fairly indicate present earning capacity and the probability of its increase or decrease in the

future, including evidence of age, intelligence, habits, health, occupation, life expectancy,

ability, probable increase in skill, and rates of wages paid generally to those following the

same vocation, particularly where the injured person has fitted himself or herself for, but

has not yet entered, the work of his or her choice.”).

30

McKnight v. Gen. Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 1992) (quoting

Gorniak, 889 F.2d at 484).

31

Andler v. Clear Channel Broad., Inc., 670 F.3d 717, 727 (6th Cir. 2012) (“Testimony

regarding what an injured plaintiff could have earned should take into account factors such

as the plaintiff's age, employment record, training, education, ability to work, and

opportunities for advancement.”).

32

Loss of future earnings capacity is subject to mathematical calculation. See, e.g.,

Williams v. Rene, 72 F.3d 1096, 1102 (3d Cir.1995); Hoffman v. Sterling Drug, Inc., 485

F.2d 132, 143 (3d Cir.1973) (“Although the determination of such damages often involves a

host of uncertain contingencies, the verdict must still have its basis in evidence, not

conjecture.”).

33

RESTATEMENT TORTS (2d) § 924, comment (e) (“If the person harmed is alive at the

time of trial, ordinarily the opinion of experts on the probable diminution of the plaintiff’s

life expectancy as a result of the tort is admissible as bearing upon the impairment of

future earning capacity.”); see also Rutherford v. Palo Verde Health Care Dist., 2015 WL

12864245 (C.D. Cal. 2015) (citing Federal Rules of Evidence on expert witness in lost

earning capacity case); Andler, 670 F.3d at 728 (“When calculating earning-capacity factors

such as projected salary and years in the workforce, experts often consult actuarial tables,

Bureau of Labor Statistics figures, or other averages along with the plaintiff’s historical

earnings.”).

34