U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

SOMA G. PRIDDLE,

ARB CASE NO. 2023-0037

COMPLAINANT,

ALJ CASE NO. 2020-AIR-00013

ALJ SCOTT R. MORRIS

DATE: February 21, 2025

UNITED AIRLINES, INC.,

RESPONDENT.

Appearances:

For the Complainant:

Soma G. Priddle, Esq.; Pro Se; Norwalk, Wisconsin

For the Respondent:

Ada W. Dolph, Esq.; Seyfarth Shaw LLP; Chicago, Illinois

Before WARREN, Acting Chief Administrative Appeals Judge and ROLFE,

Administrative Appeals Judge

DECISION AND ORDER

ROLFE, Administrative Appeals Judge:

This case arises from a complaint filed by Complainant Soma G. Priddle

against her employer, Respondent United Airlines, Inc., alleging retaliation in

violation of the whistleblower protections of the Wendell H. Ford Aviation

Investment and Reform Act for the 21st Century (AIR21)1 and its implementing

regulations.2 After conducting a hearing, a Department of Labor ALJ dismissed the

complaint, finding it time-barred, and, alternatively, denied the complaint on the

merits. Because we agree with the ALJ that Complainant waited to file her

49 U.S.C. § 42121.

29 C.F.R. Part 1979 (2024).

complaint until the limitations period had expired, after she received definitive

notice of the most recent adverse action alleged in the complaint, we affirm.3

BACKGROUND

In 1989, Complainant began working as a pilot for Respondent.4 She diverted

aircraft due to two in-flight emergencies in 2014 and 2015.5 Complainant filed

reports and submitted inquiries with the FAA and Respondent regarding the

incidents’ causes and Respondent’s response.6 Complainant contends that reporting

would serve as the basis for the retaliatory adverse actions she alleged Respondent

took against her some years later during her training to fly larger jets for the

company.

In June 2018, Complainant opted to begin training to transition from flying

Boeing 767s to flying Boeing 777s.7 The inflight training for the Boeing 777 took

place from July to September 2018 and involved several instructors, or Line Check

Airmen (LCAs).8

To a person, the LCAs reported Complainant performed poorly. For example,

they observed: Complainant was unable to recall procedures; relied heavily on her

notes; lacked situational awareness and workload and automation management

skills; slowly reacted in task saturated environments; and had diminished cognitive

ability for more than trivial tasks.9 Given her difficulties, Respondent’s Training

Review Panel (TRP) provided Complainant with ten legs of inflight training in total,

increasing the training legs typically allotted by four.10

At their conclusion, the TRP reviewed the LCAs’ reports and decided to

suspend Complainant’s training and send her for a physical examination to assess

The ALJ found Complainant failed to establish by a preponderance of the evidence

that her protected activity was a contributing factor in Respondent’s adverse actions, and

that Respondent established via clear and convincing evidence it would have taken the

same adverse actions in the absence of that activity. D. & O. at 78-84.

Id. at 7.

Id. at 13-23.

Id. at 15, 17, 23-24, 68.

Id. at 26.

Id. at 28-40.

Id. 30-31, 34, 38, 40.

Id. at 28.

whether a “cognitive, medical, emotional, [or] psychological condition” interfered

with her training capabilities.11

Section 14 of the collective bargaining agreement (United Pilot Agreement or

UPA) authorizes Respondent to order an exam to ensure medical fitness to fly with

a physician chosen by the company after consultation with a pilot’s medical

representative. The relevant portions of Section 14 state:

14-A-1 A Pilot may be required to undergo an examination

by a doctor of the Company’s choosing (a “Company

Medical Examiner” or “CME”) to determine whether the

Pilot is medically qualified to perform his duties if:

14-A-1-a The Company has reasonable cause to question

the Pilot’s ability to perform his duties . . . .

...

14-A-3 The Company shall allow for consultation by, and

give due consideration to recommendations from, a Pilot’s

aeromedical representative . . . as to the selection of the

CME . . . .[12]

The UPA, however, does not further define “consultation” nor explain the extent of

“due consideration.”13

In early October 2018, Respondent’s fleet management first called

Complainant to let her know it was “interrupting” her Boeing 777 training until she

completed a UPA Section 14 examination.14 Complainant’s supervisor, Captain Bo

Ellis, then notified Complainant in a letter dated October 5, 2018, that she was

required to undergo an evaluation to determine whether an “underlying medical

condition” affected her ability to successfully complete flight training.15 At this

point, however, Respondent did not disclose the psychiatric or cognitive nature of

the exam. The parties then exchanged correspondence regarding an appropriate

CME per Section 14-A-3 of the UPA.16

Id. at 42 n.154.

Id. at 44 n.160; RX-133-1.

RX-133-1

D. & O. at 42.

Id. at 42, 46; RX-39-1.

RX-40, RX-41-2.

On December 3, 2018, Respondent’s corporate medical office notified

Complainant’s aeromedical representative, Dr. John Culpepper, that Dr. Gregory

Kirk, a psychiatrist, would conduct the Section 14 examination.17 Dr. Culpepper

objected to the selection of Dr. Kirk on December 5, 2018. He believed that having a

psychiatrist perform the exam based on the observations of non-medical personnel

and without a prior primary care examination deviated from the DSM-5 and

standard medical procedure, and posed potential ethical conflicts.18 On January 4,

2019, Dr. Culpepper suggested a different physician perform the exam.19

But in a series of written correspondence in January 2019, the company

unequivocally informed Complainant that it rejected that recommendation, that Dr.

Kirk definitely would perform the exam, and that any failure to schedule it would

result in her being placed in unpaid status and possible further discipline per the

UPA.

On January 8, 2019, Respondent’s Managing Director of Corporate Medical,

Pat Baylis, explained in an email to Dr. Culpepper that while Respondent took his

suggestions “under advisement, [Respondent] designat[ed] Dr. Gregory Kirk to be

the Company Medical [e]xaminer” and would contact Complainant to arrange the

exam with Dr. Kirk.20 Complainant responded by disputing Respondent’s version of

her training performance.21

In a January 10, 2019 letter to Corporate Medical employee Peg McDougall,

Complainant wrote that there were “still some unresolved issues involving the exact

medical standard which will be used for the exam” with Dr. Kirk.22 On January 11,

2019, Ms. McDougall asked Complainant to clarify which “medical and/or

evaluation standards” Complainant referred to in her letter.23 In a January 14, 2019

letter to Pat Baylis, Dr. Culpepper sought further detail on the basis for an

examination with Dr. Kirk and expressed his concern about the medical ethics of an

examination by an aviation psychiatrist “in the absence of substantiated medical

indications.” 24

Id. at 47; RX-41-1.

Id. at 47.

Id.

Id. at 48; RX-47-1.

Id. at 48.

RX-48-1.

RX-49-1.

Id.; RX-50-1.

Respondent, nevertheless, did not budge from its position. In a letter dated

January 17, 2019, Capt. Ellis reiterated that “after [consultation] with

[Respondent’s] chosen aeromedical representative,” Respondent selected Dr. Kirk to

conduct Complainant’s Section 14 exam.25 The letter also informed her that failure

to schedule the exam by January 22, 2019 would place her in unpaid status and

expose her to possible further “discipline in accordance with Letter of Agreement

18-04 of the UPA.”26

When that date passed, Capt. Ellis sent Complainant a letter via FedEx

dated January 24, 2019, reiterating that “irrespective of an absence certificate

Respondent received from Complainant on January 18, 2019, his October 5, 2019

order was “still in effect.” The letter stated that since Complainant had failed to

schedule an examination with CME Dr. Kirk, Respondent would place Complainant

“on an unpaid status effective February 10, 2019” and that she would “continue to

be on an unpaid status” until she scheduled the exam.27 The letter again reiterated

that “continual non-compliance may result in discipline in accordance with Letter of

Agreement 18-04 of the UPA.”28

The parties dispute whether Capt. Ellis thereafter verbally equivocated on

the discipline outlined in the January 24 letter. Complainant testified she and Capt.

Ellis spoke by phone at some point in January 2019 and that he told her the

discipline was meant to penalize her for (what he believed) was an attempt on her

part to substitute a medical assessment from her own aviation medical examiner for

the CME.29 Complainant further testified, however, that once she clarified that the

medical absence forms she had faxed indicated she was unable to fly due to an

infection caused by a dental condition and were not an attempt to substitute the

CME, Capt. Ellis told her to disregard the disciplinary warning in the January 24

letter.30 But she also acknowledged that when she asked Capt. Ellis for written

confirmation to that effect, she received a “hostile response” from him.31

RX-52.

Id.; Tr. at 1454-57. While Complainant does not dispute that she received the

January 17, 2019 letter, she indicated at the hearing that she received the letter “not

anywhere near” January 18, 2019. Tr. at 1457.

D. & O. at 76; RX-53-1.

RX-53-1.

Id.

Tr. at 1862-64. In her post-hearing brief, Complainant stated Capt. Ellis refused to

rescind the January 24, 2019 letter. Complainant’s Post Trial Brief at 39.

For his part, Capt. Ellis did not recall ever telling Complainant to disregard

the disciplinary action. Capt. Ellis testified “I sent [Complainant] the [January 24,

2019] letter to reiterate that she could not circumnavigate the directive [to undergo

the exam with Dr. Kirk] despite forms she faxed . . . she needed to follow the

process.”32

On February 12, 2019, Complainant informed Respondent she still suffered

from the dental condition which made it difficult for her to comply with Capt. Ellis’

order, and she applied for long term disability.33 On March 1, 2019, Capt. Ellis

informed Complainant via letter that due to her condition she would be placed on

sick leave effective February 15, 2019, and could be placed on unpaid medical leave

once her sick leave was exhausted. Capt. Ellis wrote that while his order for

Complainant to undergo the exam with Dr. Kirk would be held “in abeyance”

pending her recovery from the dental condition, the order was “still in effect and to

contact the Corporate Medical office at the end of her treatment to schedule the

exam.34 Respondent approved Complainant for long term disability in March 2019.35

On March 22, 2019, Complainant sent Capt. Ellis a letter seeking written

confirmation she would not be subject to discipline for failure to schedule an

examination with Dr. Kirk and stating her belief that Capt. Ellis told her to

disregard his January 24 letter because of her dental condition.36 But Capt. Ellis

again flatly refused to rescind the disciplinary actions laid out in his January

correspondence.37 Instead, he sent Complainant another letter on April 16, 2019,

plainly reiterating that once she no longer qualified for long term disability,

Respondent would still require her to undergo the Section 14 exam.38

As of the time of the hearing, Complainant had not scheduled an examination

with Dr. Kirk nor had she attempted to renew her first-class airman medical

certificate “since September 2018” because of a “recurrent . . . post-operative

infection” from dental work which impacted her middle ear.39 Without the first-class

airman medical certificate, she cannot work as a pilot.40

Tr. at 2609, 2568-69.

D. & O. at 77.

Id.; RX-56-1.

D. & O. at 48.

RX-58.

D. & O. at 56.

Id. at 46; RX-59-1.

Id. at 46 n.171, 48; Tr. at 1861, 2010.

Tr. at 2027.

Complainant filed an OSHA complaint alleging numerous adverse actions on

May 15, 2019, which OSHA dismissed on April 17, 2020.41 The Section 14

examination and Respondent’s choice of a psychiatrist to conduct it, however,

indisputably constitute the most recent adverse action she alleged in her complaint.

The other alleged adverse actions pre-date the complaint’s filing by eight months or

more and are not at issue in our review of its timeliness.42

THE ALJ’S DECISION

On May 15, 2020, Complainant filed timely objections to OSHA’s decision

with the Office of Administrative Law Judges. The ALJ held a hearing on May 9-13

that he continued to September 12-16 and October 11-14, 2022.43

After receiving post-hearing briefs, the ALJ denied the complaint on June 7,

2023, finding it, among other things, time-barred. The ALJ first calculated that the

ninety-day limitations period contained in AIR21 prohibited any claims based on

adverse actions that occurred before February 14, 2019, given the May 15, 2019

filing date of the complaint.44 And he subsequently concluded that since

Complainant was first notified of the exam in October 2018, and indisputably

received definitive and final notice that Respondent would not waiver from its

choice of psychiatrist to conduct the Section 14 examination as of January 2019, the

complaint was categorically time-barred.45

Complainant, a self-represented litigant and licensed attorney, did not

expressly argue before the ALJ that equitable tolling applied.46 But the ALJ

D. & O. at 2.

Id. at 2-5 (such as Respondent’s: grading her in a non-standard manner during her

Boeing 777 training (June to September 2018); convening a TRP without affording her full

contractual rights (August 2018); and suspending her Boeing 777 training (October 2018)).

She additionally alleged adverse actions which were not included in her arguments her

complaint was timely. D. & O. at 55-56; Complainant’s Opening Brief (Comp. Br.) at 1-8.

D. & O. at 5-6.

Respondent filed a motion to dismiss before the ALJ based on untimeliness, which

the ALJ denied. See Respondent’s Motion to Dismiss; Order Denying Respondent’s Motion

to Dismiss. Respondent again argued the complaint was untimely at the conclusion of the

hearing. D. & O. at 57. Respondent’s Post Hearing Brief at 33-34; Tr. at 2645. Respondent

continues to argue the complaint was untimely before the Board. Respondent’s Response

Brief (Resp. Br.) at 13-17.

Id. at 72.

Tr. at 2643-55.

nonetheless summarily found, on these facts, that it did not.47 Moreover, in a

lengthy discussion, he evaluated Complainant’s overall credibility and found it

“reduce[d]” -- apart from her testimony concerning the 2014 and 2015 flight

diversions and her subsequent safety reports about those incidents. He ultimately

concluded that her “unsubstantiated, borderline conspiratorial allegations” that

Respondent orchestrated a several year plot with multiple co-conspirators as

retribution for her 2014-15 reporting was “just not supported by the evidence,”

undermining much of her overall testimony.48 The ALJ also reached alternative

findings denying the claim on the merits.49

Complainant timely appealed the ALJ’s decision to the Board. We affirm.

JURISDICTION AND STANDARD OF REVIEW

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

from ALJ decisions and to issue agency decisions in cases arising under AIR21.50

The Board conducts de novo review of questions of law in AIR21 cases, but is bound

the factual findings of the ALJ if they are supported by substantial evidence.51

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

as adequate to support a conclusion.”52 In addition, the Board affords great

deference to an ALJ’s credibility determinations, and will only overturn credibility

findings that “are inherently incredible or patently unreasonable.”53

D. & O. at 72 n.218.

Id. at 59.

Id. at 72.

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).

Mazenko v. Pegasus Aircraft Mgmt., LLC, ARB No. 2021-0032, ALJ No. 2019-AIR00001, slip op. at 10 (ARB June 18, 2024) (citations omitted).

Bobreski v. J. Givoo Consultants, Inc., ARB No. 2009-0057, ALJ No. 2008-ERA00003, slip op. at 9 (ARB June 24, 2011) (citation omitted); see also Folger v.

SimplexGrinnell, LLC, ARB No. 2015-0021, ALJ No. 2013-SOX-00042, slip op. 4 n.8 (ARB

Feb. 18, 2016).

DISCUSSION

Substantial evidence supports the ALJ’s decision Complainant’s

complaint was untimely.

A complaint alleging retaliation in violation of AIR21’s whistleblower

protections must be filed within 90 days after a violation occurs under the plain

language of the statute.54 The regulations further clarify that the clock starts

ticking on the limitations period when “the discriminatory decision has been both

made and communicated to the complainant.”55

The Board has long held the limitations period under AIR21 and similar

whistleblower protection statutes thus begins to run from the time a complainant

receives “final, definitive, and unequivocal notice of the adverse employment

action.”56 “Such notice means unambiguous ‘communication that is decisive or

conclusive, leaving no room for further action, discussion, or change.’”57 The claim

accrues from the date the employer communicates to the employee its decision to

implement an adverse employment decision, “rather than the date the consequences

of the decision are felt.”58 Consequently, “the time for filing a complaint begins when

the employee knew or should have known of the adverse action, regardless of the

effective date.”59

49 U.S.C. § 42121(b)(1).

29 C.F.R. § 1979.103(d).

Rollins v. Am. Airlines, ARB No. 2004-0140, ALJ No. 2004-AIR-00009, slip op. at 2-3

(ARB Apr. 3, 2007) (citation omitted); Mehrotra v. Gen. Elec. Co., ARB No. 2022-0060, ALJ

No. 2022-SOX-00014, slip op. at 5 (ARB Sept. 21, 2023) (citing Bauche v. Masimo Corp.,

ARB No. 2022-0035, ALJ No. 2022-SOX-00010, slip op. at 7 (ARB Sept. 27, 2022)); see also

Delaware State Coll. v. Ricks, 449 U.S. 250, 258 (1980) (“. . . the filing limitations periods

therefore commenced—at the time the [adverse action] decision was made and

communicated . . . .”).

Sachdev v. Wells Fargo Bank, ARB No. 2019-0069, ALJ No. 2019-CFP-00002, slip

op. at 3 (ARB May 19, 2020) (citing McManus v. Tetra Tech. Constr. Inc., ARB No. 20160063, ALJ No. 2016-SOX-00012, slip op. at 3 (ARB Dec. 19, 2017) (quoting Rollins, ARB No.

2004-0140, slip op. at 3).

Mehrotra, ARB No. 2022-0060, slip op. at 5 (citing Chardon v. Fernandez, 454 U.S.

6, 8 (1981)); see also Peters v. Am. Eagle Airlines, Inc. ARB No. 2008-0126, ALJ No. 2007AIR-00014, slip op. at 5 (ARB Sept. 28, 2010) (“The time for filing a complaint begins when

the employee knew or should have known of the adverse action, regardless of the effective

date. The focus is on the time of the alleged discriminatory act, not on the point at which

‘the consequences of the act become painful.’”) (quoting Ricks, 449 U.S. at 258).

Mehrotra, ARB No. 2022-0060, slip op. at 5 (citing Swenk v. Exelon Generation Co.,

ARB No. 2004-0028, ALJ No. 2003-ERA-00030, slip op. at 4 (ARB Apr. 28, 2005)).

Complainant filed her complaint with OSHA on May 15, 2019. As the ALJ

correctly held, any adverse actions alleged in the complaint occurring before

February 14, 2019, are thus outside its reach. Complainant argues the ALJ erred in

finding the following alleged adverse actions untimely: Respondent’s 1) selecting Dr.

Kirk, a psychiatrist, to perform her UPA Section 14 exam,60 and 2) removing her

from paid status if she did not schedule and attend that exam. Substantial evidence

readily supports the ALJ’s decision that Complainant had final, definitive, and

unequivocal notice of those events no later than January 2019.

Indeed, Respondent first informed Complainant it had selected Dr. Kirk to

perform the Section 14 exam on December 3, 2018.61 And if the consultation process

contemplated by Section 14 of the UPA afforded any uncertainty to that selection,

the ALJ further rationally concluded that Respondent’s correspondence

indisputably ended that process the following month. Corporate Medical Director

Baylis emailed Dr. Culpepper on January 8, 2019, stating that after taking Dr.

Culpepper’s objections to Dr. Kirk “under advisement,” the company still designated

Dr. Kirk as CME and her office would contact Complainant to schedule the exam.62

Respondent thus signaled early in January that it had allowed “consultation by”

and given “due consideration to recommendations from” Complainant’s aeromedical

representative as to the selection of Dr. Kirk per UPA Section 14-A-3.63

Additional communications that month further drove the message home. The

January 17 letter -- which the ALJ found enough to start the clock on its own -unequivocally reiterated that “after [consultation] with [Respondent’s] chosen

aeromedical representative,” Respondent selected Dr. Kirk to conduct

Complainant’s Section 14 exam, and that the failure to schedule it would place her

in unpaid status and subject her to further “discipline in accordance with Letter of

Agreement 18-04 of the UPA.”64 A mere week later, Respondent in another letter

again addressed Complainant’s continued noncompliance and again informed her it

would put her in unpaid status and subject her to further discipline if she did not

follow through with Dr. Kirk.65

No ambiguity exists here. Respondent’s consistent, unequivocal, and repeated

notice in January 2019 of the need to schedule the exam with Dr. Kirk, and the

consequences for not doing so plainly communicated Respondent’s straightforward

Although the ALJ found this was not an adverse action, we analyze it as if it were

one for the purposes of our timeliness discussion. See D. & O. at 76.

D. & O. at 47; RX-41-1.

D. & O. at 47-48; RX-47-1.

RX-133-1.

Id.; RX-52; Tr. at 1454-57.

RX-53-1.

intent to implement the alleged adverse employment decision before the February

14, 2019 deadline established by Complainant’s May 15, 2019 complaint. More than

substantial evidence thus supports the ALJ’s decision the complaint is time-barred:

rather than being a reasonable conclusion among several it is the only reasonable

one on these facts.66

Complainant’s arguments on appeal do not establish the ALJ

miscalculated the filing deadline nor do they justify equitable

tolling.

Complainant on appeal submits three arguments to attempt to establish the

ALJ erred in finding her complaint untimely: 1) the ALJ ignored evidence she did

not receive Capt. Ellis’ January 17, 2019 and March 1, 2019 letters until “much

later” due to FedEx delivery issues; 2) she did not become aware of the medically

“non-standard” and thus adverse nature of the exam until “well after” February

2019; and, 3) prior to her receipt of the January 24, 2019 letter, her supervisor,

Capt. Ellis, verbally told her to disregard it.67 We reject these arguments as without

merit.

First, whether Complainant received Capt. Ellis’ January 17, 2019 and

March 1, 2019 letters “much later” due to FedEx delivery issues is largely

irrelevant: neither letter changes the fact she also received final, definitive, and

unequivocal notice of the adverse action in the January 24, 2019 letter.68

Regardless, Complainant does not specify when she received the other letters. While

the record indicates the letters were not delivered immediately, it does not support

her assertion they were delivered “much later” to the extent that it would affect

timeliness.69

The threshold for substantial evidence “is not high” and “is more than a mere

scintilla.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (citing Consol. Edison Co. v. NLRB,

305 U.S. 197, 229 (1938)). An ALJ’s factual finding that is supported by substantial

evidence must be upheld “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)).

Id. at 3.

D. & O. at 43; Tr. at 1862-64.

Complainant asserted she received the January 17, 2019 letter “not anywhere near”

January 18, 2019 and that the March 1, 2019 letter was delivered “much later” after

“several” FedEx delivery attempts. Tr. at 1457; Comp. Br. at 2-3. She points to no

documentation supportive of this nor does the record bolster these claims. Id. at 2-3.

Second, Complainant’s suggestion it was not until she realized her attempts

to dissuade Respondent from choosing Dr. Kirk were unsuccessful that she “smelled

a rat,” and the adverse nature of the exam became apparent similarly fails. Notice

did not occur, she asserts, until March 2019, when Respondent stopped responding

to Dr. Culpepper.70 But the limitations period begins to run once a complainant

receives final, definitive, and unequivocal notice of the adverse action -- “not when

[complainant] realize[s] that the reason given by the employer for the adverse

action might not be the real reason.”71 Thus, as a legal matter, the clock started

ticking the date Respondent definitively notified Complainant it had designated Dr.

Kirk to perform her Section 14 examination instead of the date Complainant first

suspected retaliatory motives drove Dr. Kirk’s selection.

Regardless, the record again belies her contentions as a factual matter.

Complainant demonstrated awareness of the alleged “non-standard” nature of a

Section 14 exam with Dr. Kirk when Dr. Culpepper objected to an exam by Dr. Kirk

two days after Respondent’s December 3, 2019 notification it had settled on that

physician as CME. Dr. Culpepper repeated his objections on January 4, 2019 and

January 14, 2019, and Complainant relayed hers on January 10, 2019.72

Complainant thus demonstrably knew Respondent required her to undergo a

Section 14 examination performed by Dr. Kirk well before the deadline for adverse

actions established by her complaint. And her objections then were the very same as

those she raised below and again on appeal.73 Additionally, Complainant’s February

12, 2019 report to Respondent that she could not comply with the order due to her

dental condition also indisputably establishes her awareness of the January 2019

adverse action prior to the date she claims.

Finally, Respondent’s decision to continue to require Complainant’s

examination by Dr. Kirk per its numerous written communications was not made

equivocal after Complainant’s alleged conversation with Capt. Ellis such that it

could affect the deadline or support equitable tolling. Respondent’s communications

and Capt. Ellis’ testimony, combined with the ALJ’s evaluation of witness

credibility, once again belie Complainant’s contentions.

Comp. Br. at 6-8.

Martin v. Paragon Foods, ARB No. 2022-0058, ALJ No. 2021-FDA-00001, slip op. at

11 (ARB June 8, 2023) (citing Udofot v. NASA/Goddard Space Ctr., ARB No. 2010-0027,

ALJ No. 2009-CAA-00007, slip op. at 6 (ARB Dec. 20, 2011) (“the clock does not begin to

tick when [complainant] learned of a possible motive for his termination, but rather when

he received unequivocal notice of his termination”) (citation omitted).

D. & O. at 47.

Comp. Br. at 6-7.

The January 24, 2019 letter -- received after the alleged conversation -- made

clear that continued failure to schedule the exam with Dr. Kirk per Capt. Ellis’

October 5, 2018 order would result in discipline, as Respondent repeated

throughout their notices to Complainant.74 Indeed, the consequences described in

the January 24 letter are exactly the same as those contained in Capt. Ellis’

January 17, 2019 letter to Complainant, except the second letter further specified

the date on which Complainant’s status would change to unpaid, and clarified that

“[i]rrespective” of Complainant’s medical forms, Respondent’s order she undergo an

exam with Dr. Kirk remained unchanged.75 Further, Capt. Ellis’ testimony bolsters

the numerous written communications in the record, while Complainant’s

testimony -- which the ALJ in his wide discretion found to be of “reduced credibility”

and which contradicts the written record -- comprises the only evidence Capt. Ellis

ever equivocated. We do not have the authority to disturb the ALJ’s rational

credibility findings. In addition to supporting the cut-off date for adverse actions,

those findings foreclose the application of equitable tolling.76

Regardless, the Board has found notice of an adverse action sufficiently

“final, definitive, and unequivocal” despite management’s inconsistent verbal

communications prior to receipt of the notice.77 It has further found that subsequent

postponement of the effective date of the adverse action indicated in the notice fails

to render the notice equivocal and restart the clock for filing deadline purposes. 78 As

RX-53-1.

Id.

“Equitable tolling focuses on the [employee-complainant’s] excusable ignorance of

the employer’s discriminatory act. Equitable estoppel, in contrast, examines the [employer

or other] defendant’s conduct and the extent to which the [complainant] has been induced

to refrain from exercising his rights.” Mehrotra, ARB No. 2022-0060, slip op. at 8 (citing

Martin, ARB No. 2022-0058, slip op. at 8). Neither applies to these circumstances, where

the record establishes Complainant knew of the discriminatory act before the cut-off for

filing and Respondent did nothing to induce her into sleeping on her rights.

McManus, ARB No. 2016-0063, slip. op. at 3-4 (the termination notice was final,

definitive, and unequivocal even though it was preceded by obverse communications from

senior management communicating it contemplated firing complainant, then informing

complainant he had a future with the company).

See Mehrotra, ARB No. 2022-0060, slip op. at 5 (finding notice of a termination date

“at some time in the future does not remove the situation from the general rule that final

notice is when a claim accrues . . . .”) (citation omitted); see also Saffell v. State Farm Mut.

Automobile Ins. Co., 202 F.Supp.2d 475, 477 (E.D. Va 2002) (quoting Graehling v. Village of

Lombard, Ill., 58 F.3d 295, 297 (7th Cir.1995) (“‘a discharge with a deferred effective date

entails only one discriminatory decision’ which occurs when the employee receives notice of

the discharge’”)) and McManus, ARB No. 2016-0063, slip. op. at 3-4 (termination notice

final, definitive, and unequivocal despite subsequent 50-day delay of the date of

termination stated in the notice).

such, the finality and definitiveness of the January 24, 2019 letter could not be

offset by the delay in Complainant’s placement in unpaid status nor by

Complainant’s version of her conversation with Capt. Ellis before her receipt of that

letter. Respondent’s March 1, 2019 letter informing Complainant the Section 14

examination order remained in effect and holding the deadline by which she had to

attend the exam “in abeyance” pending her recovery from dental treatment did not

extend Complainant’s deadline to file her AIR21 claim. Similarly, Respondent’s

April 16, 2019 letter and Complainant’s receipt of long-term disability in no way

altered the adverse action alleged -- Respondent’s requirement she attend an

examination with Dr. Kirk prior to any restoration of her paid status.

CONCLUSION

We thus AFFIRM the ALJ’s Decision and Order Dismissing the Complaint.

SO ORDERED.79

___________________________________

JONATHAN ROLFE

Administrative Appeals Judge

___________________________________

IVEY S. WARREN

Acting Chief Administrative Appeals Judge

It is therefore unnecessary for the Board to address the ALJ’s decision on the merits

of Complainant’s AIR21 claim.

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.