# U.S. Department of Labor

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URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3Acd84db3b9af13da6

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

U.S. Department of Labor

Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

IN THE MATTER OF:
STIRLING MAZENKO,
COMPLAINANT,

ARB CASE NO. 2021-0032
ALJ CASE NO. 2019-AIR-00001
ALJ SCOTT R. MORRIS

v.
DATE: June 18, 2024
PEGASUS AIRCRAFT
MANAGEMENT, LLC;
HENRY AIR II TRUST; AND
HENRY AIR II, LLC,
RESPONDENTS.
Appearances:
For the Complainant:
Stephen L. Brischetto, Esq.; Law Office of Stephen L. Brischetto;
Portland, Oregon
For the Respondents:
Douglas L. Stuart, Esq.; Aerlex Law Group; Los Angeles, California
Before HARTHILL, Chief Administrative Appeals Judge, and ROLFE,
Administrative Appeals Judge
ORDER REVERSING IN PART AND REMANDING IN PART
HARTHILL, Chief Administrative Appeals Judge:
This case arises under the employee protection provisions of the Wendell H.
Ford Aviation Investment and Reform Act for the 21st Century (AIR21).1 Stirling
Mazenko (Complainant) filed a complaint with the Occupational Safety and Health
Administration (OSHA) on May 9, 2018, alleging that Respondents terminated his
49 U.S.C. § 42121 (amended 2020), as implemented by the regulations at 29 C.F.R.
Part 1979 (2023).
1

2

employment in retaliation for his protected activity.2 On October 26, 2020, a United
States Department of Labor (Department) Administrative Law Judge (ALJ) issued
a Decision and Order Denying Relief (D. & O.).
The ALJ held that Respondent Pegasus Aircraft Management, LLC (PAM)
was an air carrier subject to AIR21,3 but Respondents Henry Air II Trust and Henry
Air II, LLC were not air carriers subject to AIR21.4 The ALJ found that
Complainant did not engage in protected activity and that even if his concerns could
be construed as protected activity, they were not a contributing factor in PAM’s
decision to terminate his employment.5 Complainant filed a Petition for Review
with the Administrative Review Board (ARB or Board). For the reasons explained
below, we reverse in part and remand in part for further proceedings consistent
with this opinion.
BACKGROUND AND PROCEDURAL HISTORY
1. Background Facts and Relationships Between the Parties
Complainant is a pilot with over forty years of experience, having flown for a
legacy carrier prior to retiring in 2012.6 After retiring, Complainant flew corporate
jets for private operators (called Part 91 operators) and charter operators (called
Part 135 operators).7

2

Decision and Order Denying Relief at 1, 6, 37.

D. & O. at 45-47. In the Consolidated Appropriations Act, 2021 (CAA), Congress
replaced “air carrier or contractor or subcontractor” with “[a] holder of a certificate under
section 44704 or 44705 of this title, or a contractor, subcontractor, or supplier of such holder
. . . .” Congress also replaced the language about providing information “relating to air
carrier safety” with “relating to aviation safety.” The pre-amendment language applies to
the events in 2017-2018 that gave rise to Mazenko’s claim and therefore we use the term
“air carrier” herein. We note, however, that our analysis also applies to the amended text.
3

4

D. & O. at 56.

5

Id. at 68.

6

Id. at 7. The ALJ found Complainant to be credible. Id. at 39; see also infra note 98.

D. & O. at 7. Part 91 and Part 135 refer to those portions of the Federal Aviation
Regulations (FAR), under which a given flight is conducted. Id. at 7 n.24. Private flights are
subject to the rules under Part 91 and are the least rigorous, while Part 135 governs
charter flights and has additional requirements. Id.
7

3

Michael Evans is the President of the Alibaba Group.8 In 2016-2017, Evans
managed his travel with Jet Aviation, an aviation management company. 9
Complainant served as a contract pilot at Jet Aviation for Evans.10 Jet Aviation also
had three other pilots for Evans: Jay Young, Ben Izzie, and David Westcott.11
In 2017, Evans decided to end his relationship with Jet Aviation and find a new
aircraft management company.12
On September 28, 2017, Evans retained PAM to manage a new Gulfstream
650 ER (G650) aircraft for Evans.13 PAM hired Complainant as a pilot on October
13, 2017.14 In addition, PAM hired Young, Westcott, and Izzie, who all left Jet
Aviation to continue to fly for Evans.15 On December 1, 2017, PAM personnel picked
up the new G650 aircraft, and began to operate it.16 The G650 aircraft transported
passengers between U.S. states and internationally.17
PAM has three members, who all own one-third of the business: (1) Tony
Yoder,18 (2) David Mendelson,19 and (3) Tim Prero.20 PAM’s scheduler was Emilio
Lopez.21 Lopez served as PAM’s liaison between the pilots and Evans’ staff, and
8

Id. at 5-6. Alibaba Group is a Chinese multinational technology company. Id. at 8

n.27.
9

Id. at 8.

10

Id. at 8-9.

11

Id. at 8.

12

Id. at 9.

Id. at 9, 19. PAM is a flight management company organized in February 2017. Id.
at 6, 12.
13

14

Id. at 6; Joint Exhibit (JX) 1.

15

D. & O. at 17.

Id. at 22. All flights were conducted following the FAR requirements for private
operators in 14 C.F.R. Part 91. D. & O. at 6, 22.
16

17

Id. at 6, 43.

Id. at 12. Yoder is the CEO and managing partner of PAM. Id. at 12 n.45. Yoder
noted that the decision to terminate Complainant and Westcott’s employment was
“collaborative,” involving both Mendelson and Yoder. Hearing Transcript (Tr.) at 1442-43.
The ALJ found Yoder to be credible. D. & O. at 41.
18

D. & O. at 12. Mendelson is PAM’s Chief Operating Officer. Id. at 12-13. Mendelson
and Yoder decided to terminate Complainant and Westcott’s employment. Tr. at 1442-44.
The ALJ found Mendelson’s testimony to be not credible. D. & O. at 40.
19

20

D. & O. at 12.

21

Id. at 18. The ALJ found Lopez not credible. Id. at 40.

4

Lopez coordinated with Evans’ personal assistant regarding the aircraft’s
schedule.22
The other two Respondents are Henry Air II Trust and Henry Air II, LLC.
2. Complainant’s Alleged Protected Activity—Missing Letters of
Authorization
The Federal Aviation Administration (FAA) issues Letters of Authorization
(LOAs), which approve the use of certain types of equipment and operations.23
Between November 2017 and February 2018, Complainant expressed concerns to
PAM’s management that the G650 aircraft was operating without certain LOAs.24
In these communications, Complainant claimed the LOAs were required under
International Civil Aviation Organization (ICAO) requirements and identified
foreign airspaces he believed required the missing LOAs.25 Complainant claimed he
engaged in protected activity when he sent these communications because he
reasonably believed that operating the aircraft without these particular LOAs
“placed the aircraft in non-compliance with FAA requirements,” including 14 C.F.R.
§ 91.703(a).26
The LOAs at issue on appeal27 are: (1) LOA D195, which authorizes an
aircraft operator to operate an aircraft under a Minimum Equipment List (MEL);28

22

Id. at 18.

Id. at 6. An FAA Principal Operations Inspector (POI) is authorized to issue LOAs to
an operator. Id. at 23 n.101. The FAA office that houses the POIs is the Flight Standards
District Office. Id. at 23 n.102.
23

24

Id. at 6; Complainant Post Hearing Brief (Comp. Post Hearing Br.) at 25.

25

Comp. Post Hearing Br. at 25-28.

Id. at 24-28. 14 C.F.R. § 91.703(a) requires that each person operating a civil aircraft
of U.S. registry operating outside of the U.S. shall: “(1) [w]hen over the high seas, comply
with Annex 2 (Rules of the Air) to the Convention on International Civil Aviation . . . ; and
(2) [w]hen within a foreign country, comply with the regulations relating to the flight and
maneuver of aircraft there in force . . . .”
26

Complainant raised concerns regarding other LOAs, but before the Board
Complainant has only properly appealed his concerns related to LOA A153 and LOA D195.
For example, on appeal, Complainant does not contest the ALJ’s objectively reasonable
finding related to LOA A056 (CPDLC). See Complainant’s Opening Brief (Comp. Br.) at 2528. Accordingly, we do not address the issue on appeal.
27

D. & O. at 23; Respondents’ Exhibit (RX) 69 at 4-5. For clarity purposes, we will
often refer to LOA D195 as: “LOA D195 (MEL).”
28

5

and (2) LOA A153, which authorizes an operator to use Automatic Dependent
Surveillance-Broadcast (ADS-B).29
Complainant expressed concerns that PAM was using LOA D095, instead of
LOA D195 (MEL). An aircraft cannot take off with inoperable instruments or
equipment, unless the aircraft has an LOA authorizing the use of a MEL, which is
an aircraft-specific list that provides “for the operation of the aircraft with the
instruments and equipment in an inoperable condition.”30 LOA D095 authorizes an
operator to operate an aircraft with a Master Minimum Equipment List (MMEL), a
manufacturer’s list for the type of aircraft.31 The FAA allows a MMEL to be used as
a MEL.32 However, Complainant communicated his concerns to PAM that operating
abroad with LOA D095 (MMEL) would not meet ICAO or foreign requirements
requiring an aircraft-specific LOA D195 (MEL).33
Prior to PAM taking possession of and operating the aircraft on December 1,
2017,34 Complainant asked Mendelson, “do we have a[ ] MEL LOA on request as
well? I believe ICAO does not accept MMEL’s [sic] anymore and an aircraft specific
MEL requires an LOA.”35
After taking possession of the aircraft, Complainant advised Mendelson that
the LOA D095 (MMEL) was “not valid in Europe”36 and that “Europe now requires
an aircraft specific MEL with an accompanying LOA.”37 Complainant researched
the issue and sent an article to PAM from Aviation International News, titled
“EASA: U.S. Operators Can’t Use MMEL in Europe” (Aviation Article),38 that
explained the need for LOA D195 (MEL) to operate in Europe:
D. & O. at 23; see also Tr. at 851. For clarity purposes, we will often refer to LOA
A153 as “LOA A153 (ADS-B).” Complainant explained in his testimony that ADS-B is a
“way of communicating with Air Traffic Control [sic] can see your altitude and your air
speed and your position.” Tr. at 196.
29

30

14 C.F.R. § 91.213; see also D. & O. at 63; RX 69 at 4-5.

JX 11; RX 69 at 4. For clarity purposes, we will often refer to LOA D095 as “LOA
D095 (MMEL).”
31

32

JX 11; RX 69 at 5.

33

Comp. Post Hearing Br. at 25-28.

On December 1, 2017, PAM personnel picked up the new G650 aircraft, and PAM
began operating it. D. & O. at 22. The ALJ incorrectly noted that the “[e]xchange of custody
of the aircraft occurred on November 30, 2018.” Id. at 21.
34

35

Complainant’s Exhibit (CX) 10 (Complainant’s e-mail on November 19, 2017).

36

CX 13 at 4; see also Comp. Br. at 21.

37

CX 13 at 3.

38

Id. at 5.

6

US Part 91 twin turboprops and jets flown in Europe must
now operate with a Minimum Equipment List (MEL)
developed for that specific aircraft under Letter of
Authorization (LOA) D195, rather than with a
manufacturer’s aircraft model Master MEL (MMEL)
approved by the FAA under LOA D095. Laurent Chapeau,
head of the ramp inspection office of the French Safety
Oversight Authority, which administers SAFA ramp
inspections for third-country operators in France, has
affirmed EASA’s recent recognition of the ICAO standard.
...
Under ICAO guidelines, LOA D095 doesn’t provide the
oversight or approval process required for a valid MEL.[39]
On December 7, 2017, Complainant e-mailed Mendelson again and identified
four outstanding LOAs, including D195 (MEL) and A153 (ADS-B).40 On December
22, 2017, Mendelson told the pilots via e-mail he would “tackle the FAA open items
right after they return from holiday.”41 However, from December 22, 2017, to
January 17, 2018, Mendelson did not provide an update regarding the LOAs.42
On January 17, 2018, Complainant e-mailed Mendelson and asked whether
there was any progress on the remaining LOAs.43 On January 20, 2018,
Complainant e-mailed Mendelson: “[t]he ADS and CPDLC LOAs are fairly
significant since we are required to have both in our daily operating environment.
It’s just a matter of time before we are questioned about this.”44 On January 21,
2018, Complainant e-mailed Mendelson in bold red lettering asking about the
LOAs, including A056, A153, C052 and D195.45 On January 26, 2018, Complainant
e-mailed Mendelson asking for an update regarding the LOAs.46

39

Id. at 6 (emphasis added).

CX 11 at 2; Comp. Br. at 7. The ALJ incorrectly noted the date as December 7, 2018.
D. & O. at 22.
40

41

D. & O. at 23; CX 16.

D. & O. at 23. On January 6, 2018, Mendelson learned that his brother had passed
away. As a result, Mendelson took about 10 days off work. Id. at 23 n.103.
42

43

Id. at 23; CX 21 at 1.

44

CX 26 at 3.

45

D. & O. at 23; CX 26 at 2.

46

CX 26 at 1 (e-mailing “[a]ny update from the POI . . . ?”); see also Comp. Br. at 33-34.

7

On January 27, 2018, Complainant e-mailed Mendelson advising that the
G650 aircraft was going to Hong Kong, which “require[d] ADS-B” but it was not on
board the plane.47 Finally, on February 8, 2018, Mazenko e-mailed Mendelson again
stating, “[a]ny progress on disseminating the LOA’s [sic] to us that were approved 2
weeks ago? (CPDLC, ADS-B, LPV and MEL).”48
The following day, Mendelson terminated Complainant’s employment.49
3. Incidents Allegedly Related to the Termination of Complainant’s
Employment
PAM terminated Complainant’s and Westcott’s employment on February 9,
2018, identifying three incidents as the basis for its decision.50 The first incident,
during the week of January 7, 2018, involved a conversation between Complainant
and Jon Wells, an employee at International Trip Planning Services (ITPS).51
Complainant allegedly asked Wells not to tell Lopez that Complainant had called
Wells to discuss trips or share what they discussed.52 Wells nevertheless informed
Lopez of his conversation with Complainant.53 Lopez then informed Mendelson and
Yoder that Complainant had asked Wells to undermine him and take Lopez out of
the picture.54
The second incident occurred during the week of January 21, 2018, at a
Teterboro airport hangar.55 Complainant admitted that he told a mechanic named
Jorge Alva: “sometimes you’ve got to be an asshole” to get work done.56
Lopez reported this to Mendelson and Yoder.57

47

CX 34 at 2.

CX 37; see also Comp. Br. at 34. There had been confusion regarding whether the
LOAs had been approved. See CX 82; CX 33 at 1; CX 34 at 2-3.
48

49

D. & O. at 36.

50

Id. at 6, 36-37.

51

Id. at 27-28. ITPS provides international flight service support. Id. at 28.

52

Id.

53

Id.

54

Id. at 28-29; Tr. at 1153-56.

55

D. & O. at 30-33.

56

Id. at 31.

57

Id. at 32.

8

The third alleged incident occurred on January 27 or 28, 2018, at the
reception area for Signature Flight Support (Signature) at Teterboro airport.58
There are varying accounts of what occurred when Complainant, Westcott, and
another pilot, Dave Coburn, were present when the aircraft was pulled out of the
hangar to leave for a scheduled flight.59 Lopez said he witnessed Complainant being
rude to a support representative at the reception desk, which Lopez reported to
Mendelson and Yoder.60 Complainant denied ever berating anyone about the plane
not being ready, and that if he had, Coburn and Westcott “would have been in a
position to see it.”61 Westcott testified that he had “no knowledge of Complainant
berating a Signature employee.”62 Coburn likewise stated that “[i]f such an incident
had occurred and the Signature front desk personnel were upset, I would have been
aware of such an incident.”63
Mendelson and Yoder made the decision to terminate Complainant’s
employment in a “collaborative” process.64 The ALJ noted, however, that Mendelson
and Yoder “reli[ed] on Mr. Lopez’s reporting of incidents without conducting their
own investigation . . . .”65 Yoder testified that he did not talk to Complainant about
the alleged incidents because “Dave Mendelson is our director of operations.
And so, I put that on him.”66 Yoder further testified that “if there wasn’t a
communication [with Mazenko,] there should have been for sure.”67

58

Id. at 33-34; Tr. at 1073.

59

D. & O. at 34.

60

Id. at 33-35.

61

Id. at 34.

Id. Westcott denied that Lopez came up to him and Complainant regarding an issue
with the Signature representative. Id. The ALJ found Westcott somewhat credible. Id. at
39.
62

63

CX 76 at 2, ¶ 5 (Declaration of Dave Coburn, dated May 26, 2019).

64

Tr. at 1442-44.

D. & O. at 67. As noted earlier, the ALJ found both Mendelson and Lopez to be not
credible and gave their versions of events little weight. Id. at 40.
65

66

Tr. at 1433.

67

Id. at 1434.

9

4. Procedural History
Following OSHA’s dismissal of his AIR21 complaint, Complainant requested
a formal hearing before the Office of Administrative Law Judges (OALJ).68
The ALJ held a hearing from June 3-7 and July 11-12, 2019.69
Complainant argued that he engaged in protected activity when he sent
communications to Mendelson about operating the aircraft with missing LOAs,70
which he believed violated FAA rules, regulations, and orders.71 Complainant also
claimed that his protected conduct was a contributing factor in PAM’s termination
of his employment,72 and Respondents Henry Air II, LLC and Henry Air II Trust
were liable as air carriers or joint employers.73
The ALJ issued his D. & O. on October 26, 2020.74 First, the ALJ ruled that
PAM was an air carrier and therefore a covered employer subject to AIR21.75
However, the ALJ ruled that Respondents Henry Air II Trust and Henry Air II,
LLC were not air carriers subject to AIR21.76
Next, the ALJ found “no instances of protected activity in this case.”77
To engage in protected activity, complainants must prove that they believed in the
existence of a violation, which belief “must be subjectively held and objectively
reasonable.”78 The ALJ found that Complainant did not have a good faith subjective
belief or objectively reasonable belief that Complainant had reported violations
when he provided information to Mendelson regarding missing LOAs.79
68

D. & O. at 1-2. Complainant requested an OALJ hearing on October 3, 2018. Id. at 2.

69

Id. at 3.

70

Comp. Post Hearing Br. at 25.

71

D. & O. at 37.

72

Id.; Comp. Post Hearing Br. at 32-44.

73

Comp. Post Hearing Br. at 16-24; D. & O. at 37-38.

74

D. & O. at 1.

Id. at 45-47. The ALJ found that “Respondent PAM is subject to the Act because it
held itself out as holding a Part 135 air carrier certificate.” Id. at 47.
75

76

Id. at 56.

77

Id. at 65.

Petitt v. Delta Airlines, ARB No. 2021-0014, ALJ No. 2018-AIR-00041, slip op. at 12
(ARB Mar. 29, 2022) (citation omitted); see Burdette v. ExpressJet Airlines, Inc., ARB No.
2014-0059, ALJ No. 2013-AIR-00016, slip op. at 5 (ARB Jan. 21, 2016).
78

D. & O. at 58-65. On appeal, Complainant argues that “Complainant is unable to
locate a finding of fact as to whether Complainant’s concerns were objectively reasonable.”
79

10

The ALJ also found that Complainant’s reporting of missing LOAs was not a
contributing factor in PAM’s termination of Complainant’s employment.80
Complainant filed this appeal with the Board.81
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 AIR21.82
In AIR21 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.83 Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”84 An ALJ thus must “adequately
explain why he credited certain evidence and discredited other evidence.”85
And although an ALJ “need not address every aspect of [a party’s claim] at length
and in detail,” the findings “must provide enough information to ensure the Court
Comp. Br. at 17. We construe the ALJ’s ruling as finding that Complainant’s beliefs were
not objectively reasonable.
80

D. & O. at 66-68.

Although Complainant filed an untimely Petition for Review, the Board equitably
tolled the limitations period because Complainant was provided inadequate notice that
prevented Complainant from filing a timely Petition for Review. Order Accepting
Complainant’s Appeal and Setting Briefing Schedule at 4.
81

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).
82

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).
Complainant argues that the standard of review should be de novo for the ALJ’s finding
regarding protected activity. Comp. Br. at 17-19. However, the ALJ’s protected activity
finding is a factual determination, which we review to determine whether it is supported by
substantial evidence. 29 C.F.R. § 1979.110(b) (“The Board will review the factual
determinations of the [ALJ] under the substantial evidence standard.”); Petitt, ARB No.
2021-0014, slip op. at 13 (finding the ALJ’s protected activity finding was supported by
substantial evidence). Nonetheless, as discussed in Discussion, Section 2(B)(ii) infra, the
ALJ improperly applied the objectively reasonable standard to Complainant’s beliefs
regarding LOA A153 (ADS-B). Because that is a question of law, we reviewed the ALJ’s
application de novo.
83

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)).
84

85

Sea “B” Mining Co. v. Addison, 831 F.3d 244, 253 (4th Cir. 2016) (citations omitted).

11

that he properly considered the relevant evidence underlying [the party’s]
request.”86 The failure to address evidence or resolve conflicts in the evidence thus
requires remand; ultimately, a reviewing court must be able to “discern what the
ALJ did and why he did it.”87
In addition, the Board must, under substantial evidence review, consider
whether the “evidence is so strong that remand is unnecessary” and reversal is
required.88 The Board will reverse when no further factual development remains
and remand would be “futile because the ALJ’s evidence leads to one conclusion,”
i.e., no reasonable fact finder could come to any other determination.89
DISCUSSION
1. AIR21 Legal Standards
AIR21 states a complainant engages in protected activity if he or she:
[P]rovided, caused to be provided, or is about to provide
(with any knowledge of the employer) or cause to be
provided to the employer or Federal Government
information relating to any violation or alleged violation of
any order, regulation, or standard of the Federal Aviation

86

Mori v. Dep’t of the Navy, 917 F. Supp. 2d 60, 65 (D.D.C. 2013) (citations omitted).

87

Printz, ARB No. 2022-0045, slip op. at 30 (citation omitted).

Bobreski v. J. Givoo Consultants, ARB No. 2013-0001, ALJ No. 2008-ERA-00003,
slip op. at 19 (ARB Aug. 29, 2014).
88

Id. at 30; see also id. at 22 n.76 (stating a complainant is entitled to a finding as a
matter of law under the substantial evidence standard where they present “a case so strong
that the fact finder cannot disbelieve it and the only reasonable conclusion is to rule in his
favor”); Singh v. Garland, 843 F. App’x 632, 633 (5th Cir. 2021) (stating that “factual
findings are reviewed under the substantial evidence test, reversing only when the evidence
is so compelling that no reasonable fact finder could fail to find” any other way) (citations
omitted); Nguyen v. Holder, 763 F.3d 1022, 1029 (9th Cir. 2014) (“We will reverse, under
the substantial evidence standard, if the evidence in the record compels a reasonable
factfinder to conclude that the BIA’s decision is incorrect.”) (citations and quotations
omitted); Collins v. Pond Creek Mining Co., 751 F.3d 180, 187 (4th Cir. 2014) (stating that
while factual determinations are the province of the ALJ, reversal is warranted when
further factual development is unnecessary, and the party was entitled to judgment as a
matter of law); Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004) (“[B]efore we
can reverse [factual findings] we must find that it would not be possible for any reasonable
fact-finder to come to the conclusion reached by the [fact-finder].”) (citation omitted).
89

12

Administration or any other provision of Federal law
relating to air carrier safety . . . .[90]
To prevail in a retaliation case under AIR21, complainants 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.91 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.92
Before the ALJ, Complainant claimed that he engaged in protected activity
by reporting missing LOAs, including D195 (MEL) and A153 (ADS-B).93
Complainant claims that he reasonably believed that because operating the aircraft
without these LOAs violated foreign country regulations or ICAO standards, he was
reporting a violation of an FAA rule, 14 C.F.R. § 91.703(a).94 That FAA rule requires
that each person operating a civil aircraft of U.S. registry outside of the U.S. shall:
(1) When over the high seas, comply with Annex 2 (Rules
of the Air) to the Convention on International Civil
Aviation . . . ; and
(2) When within a foreign country, comply with the
regulations relating to the flight and maneuver of aircraft
there in force . . . .[95]
The ALJ found that because Complainant did not hold a good faith
subjective and objectively reasonable belief that he had reported violations of FAA
regulations, he did not engage in protected activity when he provided information
about the missing LOAs.96 Regardless of Complainant’s beliefs, the ALJ further
49 U.S.C. § 42121(a)(1) (amended 2020). As noted, supra note 3, the CAA
amendment to AIR21 changed “air carrier” language from “relating to air carrier safety” to
“relating to aviation safety.” 49 U.S.C. § 42121.
90

49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R. § 1979.109(a); Dolan v. Aero Micronesia,
Inc., ARB Nos. 2020-0006, -0008, ALJ No. 2018-AIR-00032, slip op. at 4 (ARB June 30,
2021) (citation omitted).
91

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).
92

93

D. & O. at 37-38, 61.

Comp. Post Hearing Br. at 25-28; Comp. Br. at 20-25 (subjective belief), 25-28
(objectively reasonable belief).
94

95

14 C.F.R. § 91.703(a).

96

D. & O. at 58-65.

13

held the reports did not in any way contribute to the termination of his
employment. We agree, in part, with Complainant’s arguments on appeal that the
ALJ erred in making these determinations.97
First, the ALJ found Complainant credible.98 Complainant’s explicit
statements convey the straightforward belief that the lack of LOAs violated FAA
regulations. Given that the ALJ’s speculation on Complainant’s state of mind alone
supports his determination that Complainant did not hold that belief, we find the
ALJ’s conclusion unreasonable on these facts. We therefore reverse the ALJ’s
subjective belief determination regarding LOA D195 (MEL) and LOA A153 (ADSB).
Second, in light of unaddressed evidence and unresolved conflicts in the
evidence, we remand for further consideration the ALJ’s objective belief finding
regarding LOA D195 (MEL) and LOA A153 (ADS-B) and the ALJ’s contributing
factor determination.99
2. The ALJ’s Protected Activity Analysis
A. Subjective Belief: The ALJ Erred as a Matter of Law in Finding that
Complainant Did Not Have a Subjective Belief Regarding Missing LOAs—
LOA D195 (MEL) and LOA A153 (ADS-B)
A complainant engages in protected activity under AIR21 if they provide
information relating to a violation or alleged violation of a regulation, order, or

Complainant also argues on appeal that the ALJ erred in declining to decide
Complainant’s claim that Henry Air II LLC and Henry Air II Trust were liable as joint
employers. Comp. Br. at 38-39. We decline to consider this issue on appeal because joint
employer status is only relevant if the ALJ finds, on remand, that PAM retaliated against
Complainant for AIR21 whistleblowing activity. Cf. Printz, ARB No. 2022-0045, slip op. at
24-29. Therefore, on remand, we instruct the ALJ to consider the issue if the ALJ finds that
Complainant engaged in protected activity and the protected activity was a contributing
factor to the termination of his employment.
97

The ALJ found “Complainant’s rendition of facts surrounding his efforts to obtain
the LOAs for [the G650 aircraft] . . . to be generally credible” and noted the “record before
the Tribunal supports Complainant’s accounts.” D. & O. at 39. After reviewing the record,
we affirm those findings.
98

Outside of these findings that we reverse or remand, we do not disturb the rest of
the ALJ’s findings related to Complainant’s subjective belief and the objective
reasonableness of Complainant’s beliefs regarding other LOAs not under consideration by
the Board.
99

14

standard of the FAA or federal law relating to air carrier safety.100 Although a
complainant “need not prove an actual FAA violation,”101 a complainant’s “belief
that a violation occurred must be subjectively held and objectively reasonable.”102
“To prove subjective belief, a complainant must prove that [they] held the belief in
good faith.”103 In these circumstances, Complainant thus need only demonstrate he
held a good faith belief foreign authorities or ICAO required the LOAs.104
i. LOA D195 (MEL)
The ALJ ruled that Complainant’s inquiries regarding the LOAs “ were
consistent with seeking to maximize the abilities of the aircraft by continuing to
monitor which LOAs were in effect,” rather than evidencing his subjective belief
“that the failure to have them [was] a violation of any FAA rules, regulations, or
standards.”105 The ALJ’s only support for that proposition however, was the
postulation that Complainant testified he would not operate an unlawful or unsafe
aircraft and he continued to operate the G650 despite the missing LOA D195
(MEL).106
But whether Complainant operated the G650 even if he thought it was
unlawful or unsafe is not the standard in assessing Complainant’s subjective belief
of a violation. Rather, as the ALJ initially acknowledged, that belief must only
“relate to violations of FAA orders, regulations or standards (or any other violations
of federal law relating to aviation safety.)”107 And the record completely belies any
49 U.S.C. § 42121(a); Sewade v. Halo-Flight, Inc., ARB No. 2013-0098,
ALJ No. 2013-AIR-00009, slip op. at 7 (ARB Feb. 13, 2015) (citing 29 U.S.C. § 42121(a)).
100

101

Sewade, ARB No. 2013-0098, slip op. at 8 (citing 29 U.S.C. § 42121(a)).

Petitt, ARB No. 2021-0014, slip op. at 12; see also Burdette, ARB No. 2014-0059,
slip op. at 5.
102

103

Burdette, ARB No. 2014-0059, slip op. at 5 (citation omitted).

104

See id.; Petitt, ARB No. 2021-0014, slip op. at 12.

105

D. & O. at 60.

Id. In his one paragraph subjective belief finding, the ALJ was also “mindful” that:
(1) when Complainant raised the MELs issue, management acted upon it; and (2)
Complainant was aware of the FAA’s position that one can use the MMEL as a MEL. Id.
These facts, even if established, are irrelevant to whether at the time Complainant reported
the issue he subjectively believed the lack of the LOAs related to a violation of safety
regulations. And even if they were relevant to deducing his state of mind at that time, they
could not rationally outweigh Complainant’s direct contemporaneous statements of what he
actually believed, given that the ALJ found him to be a credible witness.
106

Id. at 58 (citation omitted); accord id. at 60 (finding Complainant’s testimony that he
would not conduct an “unsafe” flight is “not the standard,” but nonetheless reflective “of his
state of mind toward safety.”).
107

15

suggestion Complainant did not in good faith believe the lack of LOA D195 (MEL)
violated foreign, and therefore FAA, regulations.
Indeed, Complainant sent repeated communications to Mendelson explicitly
stating foreign authorities and ICAO required LOA D195 (MEL) to operate.
On November 19, 2017, for example, Complainant e-mailed Mendelson, sharing his
belief that ICAO required LOA D195 (MEL): “do we have a[ ] MEL LOA on request
as well? I believe ICAO does not accept MMEL’s [sic] anymore and an aircraft
specific MEL requires an LOA.”108
Complainant also shared research with Mendelson regarding requirements
for LOA D195 (MEL). On December 1, 2017, Complainant e-mailed Mendelson,
advising him that “LOA D095 (MMEL for MEL) is not valid in Europe. See my link
below.”109 The Aviation Article link explained the need for LOA D195 (MEL) to
operate in Europe.110 After sending the Aviation Article to Mendelson, Complainant
e-mailed Mendelson again that same day, reiterating that “Europe now requires an
aircraft specific MEL with an accompanying LOA.”111
Subsequently, Complainant and Mendelson emailed back and forth on the
question of whether and when PAM would obtain the MEL and other outstanding
LOAs.112 In his January 21, 2018, e-mail to Mendelson, Complainant wrote in bold
red letters regarding four missing LOAs, including “D195: MEL.”113
Although finding Complainant credible, the ALJ ignored these explicit
communications and evidence. On their face, however, they convey the good faith
belief that lack of LOA D195 “relates” to the violation of an FAA regulation.
And given the only evidence the ALJ relied on was his own speculation about
Complainant’s continued operation of the aircraft despite the missing LOAs, we
hold no reasonable factfinder could conclude Complainant did not genuinely believe
the lack of LOA D195 (MEL) violated FAA regulations.114 We therefore reverse the
ALJ’s determination.115
108

CX 10; see also Comp. Br. at 21.

109

CX 13 at 4 (emphasis added); see also Comp. Br. at 21.

See supra Background and Procedural History, Section 2; CX 13 at 6; see also Comp.
Br. at 21.
110

111

CX 13 at 3.

112

See supra Background and Procedural History, Section 2.

113

CX 26 at 2; Comp. Br. at 33.

114

Supra note 106.

Bobreski, ARB No. 2013-0001, slip op. at 30 (stating that the Board will reverse a
factual finding when remand would be “unnecessary and futile because the ALJ’s evidence
115

16

ii. LOA A153 (ADS-B)
The ALJ similarly held that Complainant did not have a “good faith
subjective belief concerning the use of certain communication or navigation
instruments or procedures.”116 The ALJ, however, did not provide any specific
analysis of whether Complainant had a good faith subjective belief regarding LOA
A153 (ADS-B). And, in finding Complainant did not hold such a belief, the ALJ once
again ignored Complainant’s extensive communications and explicit hearing
testimony directly stating the aircraft was operating in violation of foreign
standards, thereby violating 29 C.F.R. § 91.703(a).117
First, the record shows that Complainant sent several contemporaneous
communications to his employer regarding the missing LOA A153 (ADS-B).
On January 20, 2018, Complainant e-mailed Mendelson, stating: “The ADS and
CPDLC LOAs are fairly significant since we are required to have both in our daily
operating environment. It’s just a matter of time before we are questioned on
this.”118 Subsequently, on January 21, 2018, Complainant e-mailed Mendelson in
bold red letters regarding the four missing LOAs, including “A153: ADS-B.”119
On January 27, 2018, Complainant e-mailed Mendelson the following: “We are
flying to HKG tomorrow. They require ADS-B. We don’t have the LOA.
Any suggestions?”120 A plain reading of Complainant’s e-mails thus establishes he
held a good faith subjective belief that certain airspaces required LOA A153 (ADSB). And, because Complainant understood the FAA regulations incorporate those
requirements, the only reasonable way to interpret his e-mails is to conclude
Complainant subjectively believed flying without the LOA constituted an FAA
violation.
Second, Complainant testified several times in the hearing about his
subjective beliefs regarding requirements for LOA A153 (ADS-B). For example,
Complainant responded to the ALJ’s questioning about ADS-B by testifying that
ADS-B is “required in -- in certain airways, in Hong Kong, Singapore, all of

leads to one conclusion”); see also Menendez-Donis, 360 F.3d at 918 (“[B]efore we can
reverse [factual findings] we must find that it would not be possible for any reasonable factfinder to come to the conclusion reached by the [fact-finder].”) (citation omitted).
116

D. & O. at 59.

117

Comp. Br. at 20, 22-23.

118

CX 26 at 3 (emphasis added); Comp. Br. at 22.

119

CX 26 at 2; Comp. Br. at 33.

120

CX 34 at 2 (emphasis added).

17

Europe.”121 Complainant also testified that, “[t]he Canadian regulations require
[ADS-B] just like in Europe, [where] European regulations require it.”122
In addition, Complainant testified under cross examination that, when he was
employed by PAM, he had researched the requirements for LOA A153 (ADS-B) in
Europe and Canada:
Q: Now you testified yesterday that it was your
understanding based on some research you had done that
there were certain countries that required ADS-B. Do you
recall that testimony?
A: Yes.
Q: Okay. And you referenced Canada as one of those
countries.
A: From what I read, yes. . . .
Q:
Okay. And how about Europe? It was your
understanding . . . based on research you did, that ADS-B
was required in Europe as of the time you were employed by
PAM?
A: Yes.
Q: Okay. And -- and you did research to determine this.
A: Well, I mean, I -- again, it wasn’t my job. I was doing my
best. And from the research I -- from the searching I did,
that’s what I got . . . .[123]
Complainant’s Counsel also questioned Complainant about his understanding
at the time of LOA A153 (ADS-B) requirements in Europe and Canada:
Q: [W]as it your understanding at the time that if you were
going to fly to Europe, or you were going to fly to Canada,
and you don’t have [ADS-B], you’re violating ICAO and
FAA regs?
A: Yes.[124]

121

Tr. at 195 (emphasis added).

122

Id. at 294 (emphasis added).

Id. at 559-60 (emphasis added). In addition, Complainant testified that ADS-B was
required for Hong Kong in certain “airways.” Id. at 561.
123

124

Id. at 734 (emphasis added).

18

Notably, the ALJ found Complainant to be a credible witness at the top of his
profession, and we have affirmed the ALJ’s credibility findings.125 Since the ALJ
has not identified (and we have not found) any evidence countering these direct
statements regarding Complainant’s subjective beliefs, we reverse the ALJ’s finding
concerning LOA A153 (ADS-B).126
B. Objectively Reasonable Belief: The ALJ’s Analysis Does Not Demonstrate
that the ALJ Properly Considered or Weighed the Evidence in the Record
Regarding LOA D195 (MEL) and LOA A153 (ADS-B)
The ALJ found that Complainant did not have an objectively reasonable
belief that he was reporting violations when he provided information to Mendelson
that the aircraft required LOA D195 (MEL) and LOA A153 (ADS-B). To determine
whether a complainant’s belief was objectively reasonable, the Board assesses their
belief taking into account “the knowledge available to a reasonable person in the
same factual circumstances with the same training and experience as the aggrieved
employee.”127 Under the substantial evidence standard,128 we review whether the
ALJ conducted “an appropriate analysis of the evidence to support his findings.”129
A finding of fact lacks contextual strength if the fact finder ignores, or fails to
resolve, a conflict created by countervailing evidence.130 Moreover, the ALJ “must
provide enough information to ensure . . . he properly considered the relevant
evidence[.]”131

See supra note 98. The ALJ also noted how “Complainant is a highly experienced
and qualified professional pilot, who is arguably at the apex of the corporate aviation
ladder. He is a former airline pilot and holds an airlines transport pilot certificate with
several ratings.” D. & O. at 60.
125

Bobreski, ARB No. 2013-0001, slip op. at 30 (stating that the Board will reverse a
factual finding when remand would be “unnecessary and futile because the ALJ’s evidence
leads to one conclusion”); see also Menendez-Donis, 360 F.3d at 918 (“[B]efore we can
reverse [factual findings] we must find that it would not be possible for any reasonable factfinder to come to the conclusion reached by the [fact-finder].”) (citation omitted).
126

Burdette, ARB No. 2014-0059, slip op. at 5 (inner quotations omitted); see also
Sylvester v. Parexel Int’l LLC, ARB No. 2007-0123, ALJ Nos. 2007-SOX-00039, -00042,
slip op. at 16 (ARB May 25, 2011) (“[A] reasonable, but mistaken, belief that the employer’s
conduct constitutes a violation of” the applicable law can constitute protected activity.).
127

128

29 C.F.R. § 1979.110(b); see also Printz, ARB No. 2022-0045, slip op. at 30.

Clem v. Comput. Scis. Corp., ARB No. 2016-0096, ALJ Nos. 2015-ERA-00003,
-00004, slip op. at 17 (ARB Sept. 17, 2019).
129

130

Printz, ARB No. 2022-0045, slip op. at 30 (citations omitted).

131

Mori, 917 F. Supp. 2d at 65 (citation omitted).

19

We find that the ALJ’s objectively reasonable findings suffer from
unaddressed evidence and unresolved conflicts. Given that evidence could support a
finding that Complainant’s subjective beliefs were objectively reasonable, these
errors are not harmless.
i. LOA D195 (MEL)
The ALJ found that Complainant’s belief that he reported an FAA violation
related to LOA D195 (MEL) was not objectively reasonable for several reasons: (1)
Mendelson communicated to Complainant that LOA D095 (MMEL) was sufficient
and the FAA POI said so;132 (2) there would or could only be a violation if the
aircraft were flown with inoperative equipment and needed to use LOA D095
(MMEL);133 and (3) Complainant presented no evidence that a foreign nation could
take action against him or the aircraft for operating the aircraft without a MEL.134
Complainant argues that the ALJ erred by inappropriately relying on these
findings, and ignoring or failing to address evidence that Complainant’s views were
objectively reasonable.135 Furthermore, Complainant argues that the ALJ “appears
to be offering expert testimony regarding his own personal views of what an
experienced pilot should know or think.”136 We agree with Complainant: the ALJ
did not adequately analyze the evidentiary record, failed to adequately support his
findings, and at times relied on sources outside the record, including his own
opinion.137 Moreover, the ALJ failed to resolve certain conflicts created by
countervailing evidence or explain why he credited certain evidence and discredited
other evidence.

132

D. & O. at 63.

133

Id. at 64.

Id. at 64-65. The ALJ also found PAM’s POI refused to issue LOA D195 (MEL) and
there was nothing PAM could do to force the FAA to do so, any alleged violations
concerning an aircraft’s LOA D195 (MEL) would be regulated by the FAA, and any alleged
violations of foreign regulations would be referred to the FAA. Id.
134

135

Comp. Br. at 26-28.

136

Id. at 27.

D. & O. at 63-65. In other contexts, Courts have clarified that ALJs cannot
substitute their own expert opinions over expert testimony. Ortiz v. Comm’r of Soc. Sec.,
659 F. Supp. 3d 301, 311 (E.D.N.Y. Mar. 7, 2023) (“[T]he ALJ cannot arbitrarily substitute
his own judgment for a competent medical opinion . . . he is not free to set his own expertise
against that of a physician.”) (citations and quotations omitted). Similarly, here, the ALJ
cannot substitute his own opinion over the opinions of the expert witnesses and evidence in
the record.
137

20

First, the ALJ found that Mendelson communicated to Complainant that
LOA D095 (MMEL) was sufficient and the FAA POI said so.138 The ALJ’s reliance
on Mendelson’s representations, however, creates a conflict because he found
Mendelson not credible, including determining that Mendelson “repeatedly
misrepresented his interactions with the POI to the crew.”139 On remand, the ALJ
must resolve this conflict if, on the evidence as a whole, he once again finds
Complainant’s beliefs objectively unreasonable based, in part, on Mendelson’s
testimony.
Second, the ALJ found there could only be a violation if the aircraft was flown
with inoperative equipment and needed to use D095 (MMEL).140 Complainant,
however, shared with Mendelson his belief that Europe required LOA D195 (MEL)
at all times and, in support of his belief, Complainant provided an Aviation Article
that discussed the issue. The Aviation Article noted that aircraft “flown in Europe
must now operate” with a MEL under LOA D195.141 The ALJ did not explain why he
did not credit the article as evidence that a pilot in Complainant’s position would
have reasonably believed compliance with European rules required a LOA D195
(MEL) to be on board at all times of operation.
Third, the ALJ found that any alleged violations concerning an aircraft’s
MEL would be regulated by the FAA, any alleged violations of foreign regulations
would be referred to the FAA, and Complainant presented no evidence that a
foreign nation could take action against him or the aircraft for operating the aircraft
without a MEL.142 But to satisfy the objective belief requirement, a complainant is
not required to establish that a governing body would act against an air carrier (or
employer); Complainant instead need only establish that a reasonable person of the
same training and experience would objectively believe a violation occurred. 143
138

D. & O. at 63.

Id. at 21 n.94; see also id. at 40 (“The Tribunal finds Mr. Mendelson’s testimony less
credible and gives it little weight.”). In addition, on January 21, 2018, Complainant
e-mailed Mendelson in bold red letters regarding the four missing LOAs, including
“D195: MEL.” CX 26 at 2; Comp. Br. at 33. Mendelson testified that he did not know “what
the significance of the red font would be.” D. & O. at 23; Tr. at 1963. The ALJ found
Mendelson’s testimony on this issue to not be credible. D. & O. at 23 n.104.
139

140

D. & O. at 64.

141

CX 13 at 6 (emphasis added).

142

D. & O. at 64-65.

Burdette, ARB No. 2014-0059, slip op. at 5 (“To determine whether a subjective
belief is objectively reasonable, one assesses a complainant’s belief taking into account the
knowledge available to a reasonable person in the same factual circumstances with the
same training and experience as the aggrieved employee.”) (citations and quotations
omitted).
143

21

The ALJ thus erred to the extent he required Complainant to establish the FAA or
a foreign nation would or could enforce the regulation in determining whether
Complainant satisfied this element.144
Regardless, Complainant did present evidence that France required a MEL
and that French authorities were enforcing compliance. The Aviation Article
Complainant shared with Mendelson states that the French Safety Oversight
Authority “has noted a lack of compliance during ramp inspections in the last few
months. . . . [I]nspectors did raise Category 2 findings, which . . . require operators
to take follow-up preventative action.”145 The ALJ erred by not weighing this
evidence in his objective belief analysis.
In addition to the issues addressed above with the ALJ’s findings, a review of
the evidentiary record shows that the ALJ did not sufficiently evaluate the
following evidence.146
a. Complainant’s Communications to Mendelson, and Pilots’ Testimony
As detailed above, Complainant sent numerous emails to Mendelson from
November 19, 2017, until PAM terminated his employment in February 2018,
sharing his belief that ICAO and foreign authorities required LOA D195 (MEL).147
The ALJ found Complainant to be “at the apex of the corporate aviation ladder.”148
The Aviation Article is evidence that at least one other aviation source believed the
absence of a LOA D195 (MEL) was a violation of French requirements or ICAO
guidelines.149 Laurent Chapeau, the head of the ramp safety inspection office in
France, was quoted stating France both adopted and was enforcing the new
requirement.150
The ALJ must also consider Westcott and Coburn’s testimony in determining
whether Complainant’s beliefs were objectively reasonable. Westcott stated: “I was
144

See id.

145

CX 13 at 6.

Some of the evidence listed below is considered above in addressing the ALJ’s
findings, but we have included it again to clearly indicate the evidence that requires further
review by the ALJ.
146

Supra Background and Procedural History, Section 2. On November 19, 2017,
Complainant e-mailed Mendelson “do we have a[ ] MEL LOA on request as well? I believe
ICAO does not accept MMEL’s [sic] anymore and an aircraft specific MEL requires an
LOA.” CX 10.
147

148

D. & O. at 60.

149

CX 13 at 6.

150

Id.

22

concerned we were going to get ramp checked on some European or Asian airport,
and they were going to say, ‘Let me see your LOAs’ at which point they were going
to say, ‘You flew into our country illegally and the airplane is now grounded.’” 151
From there, “I’d have to say to Mr. Evans, ‘I’m sorry. But we’ve been flying this
airplane illegally, unbeknownst to you, and now we are stuck here . . . .’”152 Coburn
stated that “[t]he emails that Mr. Mazenko was sending to PAM management were
necessary because PAM was not providing the pilots with the proper tools (i.e.
LOA’s) [sic] to lawfully and properly perform their job.”153
b. Complainant’s Expert, J. Bruce Huffman Testimony
The ALJ did not weigh the testimony of J. Bruce Huffman, Complainant’s
expert.154 Huffman testified regarding a white paper by the Air Safety Group titled,
“Minimum Equipment List: Validity of the MMEL as an MEL in Domestic and
Foreign State Airspace” (White Paper).155
Respondents’ Counsel asked Huffman if he found the following statement in
the White Paper to be accurate: “Variations in individual interpretations or
perspectives, pertaining to MMEL, as an MEL, applicability in foreign state
airspace, are highly subjective and absent of evidence to support that
position. Short of an interpretation by an Administrative Law Judge, the legal
responsibilities will likely remain undetermined until tested.”156 In response,
Huffman testified that the White Paper statement was accurate.157
The White Paper also provided a “Strategic Recommendation,” stating:
Mitigation of the potential risk of being found in noncompliance with a foreign state MEL requirement, and to
support the objective of ensuring complete confidence of
regulatory compliance, anywhere in the world, Air Safety
Group recommends that U.S. non-commercial operators
develop an MEL specific to an individual aircraft and
obtain a D195 Letter of Authorization for its use.[158]
151

Tr. at 418.

Id. Although the ALJ only found Westcott somewhat credible, he did not question
the credibility of this statement.
152

153

CX 76 at 2, ¶ 6.

154

The ALJ found Huffman to be credible. D. & O. at 39.

155

Tr. at 845-47. The White Paper is in the record at RX 69.

156

Tr. at 846-47.

157

Id. at 847.

158

RX 69 at 7.

23

On remand, the ALJ must consider whether the White Paper and related
testimony reasonably supports a conclusion there could be a violation for using a
MMEL as a MEL.
c. Respondents’ Expert, Charles O’Dell Testimony
The ALJ similarly did not consider relevant testimony from Respondent’s
expert, Charles O’Dell.159 O’Dell testified regarding France’s requirements, noting:
“My understanding is France has objection to it, the [LOA D0]95 [(MMEL)].
They want the [LOA D]195 [(MEL)].”160 Although O’Dell acknowledged that France
“want[s]” LOA D195 (MEL), he also opined that a LOA D195 (MEL) was not
required,161 but the ALJ did not adequately explain this apparent discrepancy.
We therefore conclude that the ALJ did not adequately analyze the
evidentiary record in finding that Complainant’s beliefs were not objectively
reasonable related to LOA D195 (MEL). Accordingly, we remand to the ALJ to
reconsider his objectively reasonable finding regarding LOA D195 (MEL),
considering these identified facts and any other facts the ALJ identifies as relevant.
ii. LOA A153 (ADS-B)
The ALJ found it objectively unreasonable for Complainant to believe that he
reported a violation when he communicated with Mendelson about the missing LOA
A153 (ADS-B).162 In so doing, however, the ALJ both misapplied the standard and
failed to address relevant evidence.
First, instead of focusing on the reasonableness of Complainant’s belief, the
ALJ based his determination on whether Complainant had the ability to prevent a
violation or whether the employer required Complainant to violate FAA rules.163
The ALJ found, for example, that the “failure to have [LOA A153 (ADS-B)] onboard

159

The ALJ found O’Dell to be credible. D. & O. at 39.

160

Tr. at 1018.

161

Id. at 1021-22.

162

D. & O. at 61-63.

A complainant engages in protected activity under AIR21 if they provide information
relating to a violation or alleged violation of a regulation, order, or standard of the FAA or
federal law relating to air carrier safety. 49 U.S.C. § 42121(a). Complainants must prove
that they believed in the existence of a violation, which belief “must be subjectively held
and objectively reasonable.” Petitt, ARB No. 2021-0014, slip op. at 12.
163

24

has nothing to do with whether or not the aircraft can operate.”164 The ALJ further
reasoned that “[i]f Complainant or the flight crew opted to operate the aircraft in a
manner that required LOA approval, but did not have LOA approval on board, they
violated the regulations.”165 And in response to Complainant’s e-mail that the LOA
was required, the ALJ held: “[T]he remedy for the pilot is simple – one does not
operate in the environment that requires [LOA A153 (ADS-B)] approval.”166
The ALJ also concluded, in part, that Complainant’s reports to Mendelson were not
protected activity because “[n]o one from PAM ever told Complainant to violate the
regulations or threatened him with discipline if he did not.”167
But the proper question is not whether Complainant had the ability to prevent
a violation or whether the employer required Complainant to violate FAA rules.
Rather, the proper question is whether Complainant had an objectively reasonable
belief that he had reported a violation. Complainant raised concerns about flying in
certain airspaces without LOA A153 (ADS-B), telling Mendelson “we are required to
have [it] in our daily operating environment.”168 Complainant also credibly testified
that, based on his research, he believed Canada and Europe required LOA A153
(ADS-B).169 The G650 aircraft indisputably flew into Europe and Canada.170
On remand, the ALJ must determine whether Complainant’s beliefs were
objectively reasonable, not whether Complainant had the ability to prevent a
violation or whether the employer required Complainant to violate FAA rules.
Second, the ALJ did not adequately analyze Complainant’s communications to
Mendelson and the other pilots’ testimony in finding that Complainant did not
reasonably believe he was reporting a violation relating to the missing LOA A153
(ADS-B). The ALJ must address Complainant’s research and opinion at the time he
reported the need for LOAs, and his testimony at the hearing, particularly since the

D. & O. at 61. The ALJ was referring to three LOAs—A056, A153, and C052—but
for our purposes here, we only need to discuss LOA A153.
164

165

Id. at 63 (emphasis added).

166

Id. at 62.

167

Id. at 63.

168

CX 26 at 3 (emphasis added).

Comp. Br. at 27; Tr. at 294-95, 559-60. Complainant also believed that Hong Kong
required LOA A153 (ADS-B), but clarified that Hong Kong only required LOA A153 (ADSB) in certain airways. Id. at 560-61.
169

Complainant testified that “[w]e flew into France almost every trip.” Tr. at 164.
Complainant testified that they flew into Canada, Europe, and Hong Kong without LOA
A153 (ADS-B) on board. Id. at 292-93.
170

25

ALJ found Complainant to be a credible witness “at the apex of the corporate
aviation ladder.”171
On January 20, 21, and 27, 2018, Complainant e-mailed Mendelson stating
that the LOA A153 (ADS-B) was required to operate, and specifically required for
an upcoming flight into Hong Kong.172 Mazenko also testified that he researched the
issue and found that certain countries require LOA A153 (ADS-B), including
Canada for new planes.173 Furthermore, based on his research, Mazenko testified
how he believed Europe required ADS-B at the time he was employed by PAM,174
and Complainant believed that Hong Kong required ADS-B in certain “airways.”175
Under questioning from his Counsel, Complainant agreed with the statement
that “if you’re going to fly to Europe, you need [ADS-B],” and “if you’re going to fly to
Canada, you need [ADS-B].”176 Complainant also agreed that, “at the time,” he
believed that if you fly to Europe or Canada without ADS-B, you violate “ICAO and
FAA Regs.”177 The ALJ further must weigh Westcott and Coburn’s testimony in
determining whether Complainant’s beliefs were objectively reasonable.178
Accordingly, we remand to the ALJ to reconsider his finding that
Complainant’s beliefs were not objectively reasonable regarding LOA A153 (ADSB), considering these and any other relevant facts under the proper standard.

171

D. & O. at 60.

On January 20, 2018, Complainant e-mailed Mendelson: “The ADS and CPDLC
LOAs are fairly significant since we are required to have both in our daily operating
environment. It’s just a matter of time before we are questioned on this.” CX 26 at 3
(emphasis added). On January 21, 2018, Complainant e-mailed Mendelson in bold red
letters regarding the four missing LOAs, including “A153: ADS-B.” Id. at 2; Comp. Br. at
33. Mendelson testified that he did not know “what the significance of the red font would
be.” D. & O. at 23; Tr. at 1963. The ALJ found Mendelson’s testimony on this issue to be not
credible. D. & O. at 23 n.104. On January 27, 2018, Complainant e-mailed Mendelson the
following: “We are flying to HKG tomorrow. They require ADS-B. We don’t have the LOA.
Any suggestions?” CX 34 at 2.
172

173

Tr. at 559-60.

174

Id. at 560.

175

Id. at 560-61.

176

Id. at 730.

177

Id.

178

Supra Discussion, Section 2(B)(i)(a); Tr. at 418; CX 76 at 2, ¶ 6.

26

3. The ALJ’s Contributing Factor Analysis Does Not Demonstrate that the
ALJ Considered or Properly Weighed All the Evidence in the Record
Complainant has the burden to prove, by a preponderance of the evidence,
that his protected activity was a contributing factor to the employer’s adverse
action.179 “A ‘contributing factor’ includes ‘any factor, which alone or in connection
with other factors, tends to affect in any way the outcome of the decision.’”180
Employees may meet their evidentiary burden to establish contributing factor with
circumstantial evidence, such as temporal proximity.181
The ALJ found Complainant did not meet his burden on this element.182 He
acknowledged that “PAM handled the termination of Complainant poorly,” and
noted how Mendelson and Yoder relied on Lopez’s reporting of Complainant’s
alleged misconduct without conducting their own investigation or allowing
Complainant “to present his version of the facts.”183 Nonetheless, the ALJ found
since “being a poor manager is not what this Tribunal must decide,”184 this “is not
the type of evidence that assists Complainant in meeting his burden.” 185 The ALJ
thus concluded: “In sum, the Tribunal is not convinced by a preponderance of
evidence that Complainant’s reporting of LOAs had anything to do with his
termination. If there is a contributing factor here, it was management’s failure to
investigate the nature of the alleged events that led to Complainant’s
termination.”186
On appeal, Complainant argues the ALJ erred relying on Mendelson’s
representations because the ALJ found Mendelson generally lacked credibility and
because he “lied” regarding the LOAs in his communications with Complainant.187
Complainant also alleges the ALJ did not address arguments that undermine the
ALJ’s assumptions about the termination including the temporal proximity of

179

Petitt, ARB No. 2021-0014, slip op. at 18.

180

Id.

Williams v. QVC, Inc., ARB No. 2020-0019, ALJ No. 2018-SOX-00019, slip op. at 12
(ARB Jan. 17, 2023) (citation omitted). “Circumstantial evidence may include, but is not
limited to, temporal proximity, inconsistent application of an employer’s policies, pretext,
shifting explanations by the employer, or antagonism.” Id. (citations omitted).
181

182

D. & O. at 68.

183

Id. at 67.

184

Id.

185

Id. at 68.

186

Id.

187

Comp. Br. at 35-37.

27

Complainant’s reports to his firing and Respondent’s failure to follow the proper
procedures in the termination process.188
For its part, Respondents counter that the ALJ’s decision should be affirmed
for the reasons the ALJ held, but also for an argument the ALJ did not address:
Respondents argue that Westcott—who was not involved in any of the LOA
reports—was terminated on the same day for the same reasons as Complainant,
thereby establishing the LOAs played no role in Complainant’s termination.189 We
agree with both parties, in part, and instruct the ALJ on remand to address the
following issues.
First, as Complainant argues, the ALJ did not weigh the evidence of temporal
proximity.190 On appeal, Complainant reiterates he sent six messages to Mendelson
in January and February 2018 regarding the missing LOAs.191 Complainant argues
that the close temporal proximity between his communications and the termination
of his employment could establish a link between his protected conduct and his
termination that the ALJ did not address.192 We agree and remand to the ALJ to
evaluate Complainant’s argument.
Second, we agree with Complainant that the ALJ did not explain why he
credited Mendelson’s explanation of the termination, despite finding Mendelson’s
testimony “less credible and giv[ing] it little weight.”193 We further agree with
Complainant that Mendelson’s decision not to talk to Mazenko was inconsistent
with his training and practice, and that Yoder testified that Mendelson should have
communicated with Mazenko as part of an investigation.194 On remand, we
therefore instruct the ALJ to address Mendelson’s credibility and to explain how the
ALJ concluded “management’s failure to investigate the nature of the alleged
events” does not weigh in favor of Complainant’s position he was terminated for
engaging in protected activity.195
188

Id. at 33-35.

189

Respondents’ Response Brief at 23.

Comp. Br. at 33-34. The ALJ did not analyze Complainant’s temporal proximity
argument, but he did acknowledge it. See D. & O. at 37-38.
190

191

Comp. Br. at 33-34.

192

Id.

193

D. & O. at 40.

Comp. Br. at 35; Tr. at 1433-34. Complainant argues that Mendelson “was trained to
document performance issues so there is a record of what he has done and of the employee’s
response to issues,” but “Mendelson made no documentation with respect to Lopez’[s]
complaints . . . .” Comp. Br. at 35; see also Tr. at 1954-56, 1981.
194

195

D. & O. at 67.

28

Finally, the ALJ did not evaluate the evidence concerning PAM’s termination
of Westcott’s employment on the same day as Complainant’s employment
termination. Respondents argued before the ALJ that PAM terminated
Complainant’s and Westcott’s employment because of their conduct, and Westcott
had “never said a word about LOAs and couldn’t have cared less about them.”196
Similarly, on appeal, Respondents argue that “[t]here were two employees
terminated on the same day for the same reason. They were not a good fit for the
company. . . . [I]f the LOA issue w[as] the cause of [Complainant’s] termination,
why was the other employee terminated?”197 Complainant, in turn, supplies a
possible pretextual reason: “The termination of Westcott . . . is easily reconciled. If
Mendelson wished to use Lopez’[s] complaints as a pretext to terminate Mazenko,
he also needed to terminate Westcott since Lopez’[s] complaints extended to both
individuals.”198 We remand this issue for the ALJ to address in the first instance as
part of his contributory factor analysis.
As noted, an ALJ does not need to address every aspect of a complainant’s
claim at length or in detail.199 But the ALJ must explain the relevant evidence in a
manner that allows the Board to understand “what the ALJ did and why he did
it.”200 For the reasons stated, we simply cannot. Accordingly, we remand to the ALJ
to reconsider his contributing factor analysis, taking into account these identified
facts and any other facts the ALJ identifies as relevant.

196

Respondents’ Post Hearing Brief at 51.

197

Respondents’ Response Brief at 23 (emphasis in original).

198

Complainant’s Reply Brief at 17-18.

199

Mori, 917 F. Supp. 2d at 65 (citation omitted).

200

Printz, ARB No. 2022-0045, slip op. at 30 (citation omitted).

29

CONCLUSION
We REVERSE the ALJ’s subjective belief ruling regarding LOA D195 (MEL)
and LOA A153 (ADS-B). In addition, we REMAND the ALJ’s objective belief ruling
regarding LOA D195 (MEL) and LOA A153 (ADS-B), and we REMAND the ALJ’s
contributing factor ruling for additional consideration, fact-finding, and analysis in
accordance with our instructions.
SO ORDERED.

____________________________________
SUSAN HARTHILL
Chief Administrative Appeals Judge

____________________________________
JONATHAN ROLFE
Administrative Appeals Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3Acd84db3b9af13da6. Public record. Not legal advice.