Petition for Writ of Certiorari — Darren Kossen, Petitioner v. Asia Pacific Airlines, et al.
Supreme Court briefNov 1, 2023
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APPENDIX TABLE OF CONTENTS
Page
United States Court of Appeals for the Ninth
Circuit, Order, September 5, 2023 ................... App. 1
United States Court of Appeals for the Ninth
Circuit, Order, August 3, 2023 ......................... App. 3
United States Court of Appeals for the Ninth
Circuit, Order, August 1, 2023 ......................... App. 4
United States Court of Appeals for the Ninth
Circuit, Memorandum, April 20, 2023............. App. 6
Department of Labor, Office of Administrative
Law Judges, Order, December 2, 2020 .......... App. 16
Department of Labor, Administrative Review
Board, Decision and Order, August 26,
2021 ................................................................ App. 21
Department of Labor, Office of Administrative
Law Judges, Decision and Order, November 9,
2020 ................................................................ App. 26
App. 1
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
DARREN KOSSEN,
v.
No. 21-71346
Petitioner, LABR No. 2019-AIR00011 Department of
Labor (except OSHA)
ASIAN PACIFIC
AIRLINES; U.S.
DEPARTMENT OF
LABOR,
ORDER
(Filed Sep. 5, 2023)
Respondents.
Before: PAEZ and VANDYKE, Circuit Judges, and
LIBURDI,* District Judge.
Petitioner’s “Motion to Chief Judge of the Ninth
Circuit Court Mary H. Murgia to Overturn Court
Clerk 8/1/23 Order Denying Motion for Extension of
Time One Working Day and Striking Petition for En
Banc Review and 8/3/23 Reconsideration Thereof and
Alternatively for Order Simply Denying En Banc
Review” is treated as a motion for reconsideration en
banc. Treated as such, the motion is DENIED. G.O.
6.11.
App. 2
No further filings will be entertained in this closed
docket.
_______________
*
The Honorable Michael T. Liburdi,
United States District Judge for the District of
Arizona, sitting by designation.
App. 3
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
DARREN KOSSEN,
No. 21-71346
Petitioner, LABR No. 2019-AIR00011 Department of
Labor (except OSHA)
v.
ASIAN PACIFIC
AIRLINES; U.S.
DEPARTMENT OF
LABOR,
ORDER
(Filed AUG. 3, 2023)
Respondents.
Before: PAEZ and VANDYKE, Circuit Judges, and
LIBURDI,* District Judge.
Petitioner’s motion for reconsideration (Docket
No. 124) is DENIED.
IT IS SO ORDERED.
___________
* The Honorable Michael T. Liburdi, United
States District Judge for the District of
Arizona, sitting by designation.
App. 4
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
DARREN KOSSEN,
v.
No. 21-71346
Petitioner, LABR No. 2019-AIR00011 Department of
Labor (except OSHA)
ASIAN PACIFIC
AIRLINES; U.S.
DEPARTMENT OF
LABOR,
ORDER
(Filed Aug. 1, 2023)
Respondents.
Before: PAEZ and VANDYKE, Circuit Judges, and
LIBURDI,* District Judge.
Petitioner’s motion for an extension of time to
file a petition for rehearing en banc on July 31, 2023
(Docket Entry No. 120) is DENIED. The petitions for
rehearing en banc filed on July 29, 2023 (Docket
Entry No. 121) and filed on July 31, 2023 (Docket
Entry No. 122) are stricken from the record. No
further petitions for rehearing shall be filed.
App. 5
IT IS SO ORDERED.
___________
* The Honorable Michael T. Liburdi, United
States District Judge for the District of
Arizona, sitting by designation.
App. 6
WARNING: AT LEAST ONE DOCUMENT COULD
NOT BE INCLUDED!
You were not billed for these documents.
Please see below.
Selected docket entries for case 21−71346
Filed
04/20/
2023
Document
Description
108
Page
108
Memorandum
108 Post
Judgment
Form
DOCUMENT
COULD NOT
BE
RETRIEVED!
2
Docket Text
FILED
MEMORANDUM
DISPOSITION
(RICHARD A.
PAEZ,
LAWRENCE
VANDYKE and
MICHAEL T.
LIBURDI)
PETITION FOR
REVIEW
DENIED. FILED
AND ENTERED
JUDGMENT.
[12699145] (MM)
App. 7
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
DARREN KOSSEN,
v.
No. 21-71346
Petitioner, LABR No. 2019-AIR00011 Department of
Labor (except OSHA)
ASIAN PACIFIC
AIRLINES; U.S.
DEPARTMENT OF
LABOR,
MEMORANDUM*
(Filed Aug. 20, 2023)
Respondents.
On Petition for Review of an Order of the
Department of Labor
Argued and Submitted February 14, 2023
Seattle, Washington
Before: PAEZ and VANDYKE, Circuit Judges, and
LIBURDI,** District Judge
___________________
App. 8
* This disposition is not appropriate for
publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
** The Honorable Michael T. Liburdi, United
States District Judge for the District of
Arizona, sitting by designation.
Darren Kossen petitions for review of the
Administrative Review Board’s (“ARB”) affirmance
of an Administrative Law Judge’s (“ALJ”) denial of
his complaint under the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century
(“AIR 21”). AIR 21 protects employees who report
information to an (“AIR 21”). AIR 21 protects
employees who report information to an employer or
the federal government they reasonably believe
relates to a violation of any order, regulation or
standard of the Federal Aviation Administration. 49
U.S.C. § 42121(a)(1). Kossen alleges that his past
employer, Asian Pacific Airlines (“APA”), retaliated
against him for his protected whistleblowing
activities by (1) refusing to promote him to captain;
(2) terminating him after he rescinded his
resignation; and (3) blacklisting him, which
impacted his subsequent employment at TransAir,
Empire Airlines (“Empire”), and Wing Spirit.
We have jurisdiction under 49 U.S.C. §
42121(b)(4)(A). We review the ARB’s Final Decision
and Order under the Administrative Procedure Act,
5 U.S.C. § 706(2); 49 U.S.C. § 42121(b)(4)(A). Under
App. 9
Section 706, “the ARB’s legal conclusions must be
sustained unless they are arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance
with law, and its findings of fact must be sustained
unless they are unsupported by substantial evidence
in the record as a whole.” Calmat Co. v. U.S. Dep’t
Labor, 364 F.3d 1117, 1121 (9th Cir. 2004).
We review “the decision of the ARB rather
than the ALJ, but the ARB is required to consider
conclusive the ALJ’s factual findings if supported by
substantial evidence.” Id. at 1121–22. We deny the
petition for review.
Foremost, we cannot consider many of
Kossen’s arguments because he failed to raise them
before the ARB and thus, they are waived. See 29
C.F.R. § 1979.110(a). In addition, we cannot
examine whether the ARB abused its discretion in
denying Kossen’s motions to reconsider and reopen
the record because Kossen’s petition does not
challenge these orders. See 49 U.S.C. §
42121(b)(4)(A); Fed. R. of App. P. 15(a)(2). The issues
properly exhausted and before this court are: (1)
whether the ARB employed the wrong standard of
review;(2) whether the ARB erred in finding that the
ALJ did not abuse his discretion in excluding certain
exhibits; (3) whether the ARB’s finding that Kossen
failed to prove by a preponderance of the evidence
that he faced an adverse action is supported by
substantial evidence; and (4) whether the ARB
App. 10
legally erred in concluding that Kossen failed to
prove causation by a preponderance of the evidence.
We address each issue in turn.
1. The ARB did not employ the wrong
standard of review. Contrary to Kossen’s arguments,
the ARB does not review the ALJ’s factual findings
de novo but rather for substantial evidence, which it
did here. See Calmat, 364 F.3d 1121–22.
Furthermore, the ARB properly reviewed de novo
Kossen’s objections to the ALJ’s authority to exclude
evidence and determined the ALJ did not err.
Kossen’s argument that the ARB’s legal analysis
was not sufficiently exhaustive is meritless. See 29
C.F.R. § 1979.110(b) (explaining that the ARB is
permitted to adopt the decision of the ALJ).
2. The ARB correctly concluded that the ALJ
did not abuse his discretion in excluding certain
evidence. See Calmat, 364 F.3d 1122 (holding that
we review evidentiary rulings for abuse of discretion
and may only reverse if the error was prejudicial).
Kossen argues that the ALJ erred in excluding key
emails, which he contends demonstrate that he
rescinded his resignation without reservation and
that APA affirmatively accepted it.
Kossen, however, had many opportunities to
seek admission of this evidence, but repeatedly
disregarded the ALJ’s pre-hearing procedural rules.
Even after Kossen failed to comply with the ALJ’s
App. 11
Pre-Hearing Order, the ALJ afforded him the
opportunity to admit evidence. Yet, he still did not
include these documents in his exhibit list or present
them for admission on the first day of the hearing.
The ALJ acted well within his discretion in
proceeding rather than continuing the hearing to
allow Kossen to cure his procedural errors. The ALJ
reasonably decided that a continuance would be
prohibitively expensive because of the distances the
participants had traveled and would unfairly burden
the other parties when Kossen had ample time to
prepare. See 29 C.F.R. § 18.102 (establishing that an
ALJ should set rules to “secure fairness in
administration, elimination of unjustifiable expense
and delay”).
The ALJ also did not abuse his discretion in
refusing to admit the emails when they could not be
authenticated. Kossen only attempted to enter the
emails into evidence during the cross-examination of
the APA Director of Operations.Despite Kossen’s
failure to introduce the exhibits earlier, the ALJ
stated he would admit them if the witness could
authenticate the documents. However, the Director
of Operations stated that he did not recall the emails
and was seeing them for the first time. Thus, the
ALJ did not abuse his discretion in excluding the
emails. See 29 C.F.R. § 18.901(b)(1) (permitting
authentication when testimony states that “a matter
is what it is claimed to be”).
App. 12
Finally, these emails were not part of the
record simply because they were exhibits to
depositions that were admitted at the hearing. See
29 C.F.R. § 18.82(f) (stating that parties may submit
portions of documents); 29 C.F.R. § 18.55(a)(2)
(establishing that “[a]ll or part of a deposition” may
be used at a hearing (emphasis added)).
3. The ARB’s determination that Kossen
failed to prove by a preponderance of the evidence
that he faced an adverse action, whether by being (1)
denied a promotion to captain, (2) blacklisted, or (3)
terminated, is supported by “substantial evidence.”
See Nat. Res. Def. Council v. U.S. Env’t Prot. Agency,
31 F.4th 1203, 1206 (9th Cir. 2022).
First, substantial evidence in the record
supports the ARB’s ruling that Kossen failed to
demonstrate that APA retaliated against him by not
promoting him to captain. Importantly, the ALJ
correctly concluded that this claim was time- barred
as Kossen learned that he would not be made
captain before October 2017 and filed his AIR 21
complaint in February 2018, and thus, did not meet
the requisite ninety-day filing deadline. See 49
U.S.C. § 42121(b)(1). Kossen also failed to
substantiate his claim because he did not present
any evidence before the ALJ showing that APA
promoted another equally or less-qualified first
officer to captain. Moreover, the record supports that
Kossen needed to improve his Crew Resource
App. 13
Management (“CRM”) skills before being promoted
to captain.
Second, substantial evidence supports the
ARB’s determination that Kossen failed to
demonstrate that APA blacklisted him. Regarding
his prospective employment at TransAir, Kossen did
not present any persuasive evidence that APA
provided a negative reference and the record
supports that TransAir had other reasons for
withdrawing its job offer. Kossen’s insistence on the
importance of one witness’s testimony is not
persuasive. The ALJ found Kossen’s witness’s
testimony only marginally relevant as the witness
could not confirm that APA communicated with
TransAir. With respect to Kossen’s employment at
Empire, Kossen did not offer any evidence that APA
ever contacted Empire regarding Kossen and thus,
failed to demonstrate that APA interfered with his
employment. Furthermore, the record is replete
with evidence that Kossen was denied positions,
demoted, and ultimately terminated on account of a
safety incident, his flying credentials, and his poor
CRM skills. Finally, in regard to Wing Spirit, Kossen
failed to substantiate his claim that APA disclosed
anything negative about him and the ALJ
reasonably found APA’s narrative more credible
than Kossen’s rendition of events.
Third, substantial evidence supports the
ALJ’s conclusion that Kossen did not demonstrate
App. 14
by a preponderance of the evidence that he was
terminated.
Because Kossen failed to obtain admission of
the contested emails into the record, the ALJ had to
rely heavily on witness testimony, taking into
consideration credibility determinations, and make
do with scant documentary evidence. The record
supports that Kossen resigned and accepted a
position at Empire and that APA hired a
replacement pilot. Furthermore, it is unclear
whether Kossen actually cut ties with Empire or
merely postponed his start date, undermining his
contention that he intended to stay with APA
indefinitely. Because the ALJ did not find Kossen
completely credible, the ALJ gave greater weight to
APA’s narrative, which reasonably explained that
the company only intended for Kossen to stay on
during the busy holiday season, not permanently.
Without any documentary evidence that Kossen had
effectively rescinded his resignation, the ALJ’s
conclusion that Kossen set the events in motion by
resigning, rather than being terminated, is a
“rational interpretation” of the evidence. Gebhart v.
SEC, 595 F.3d 1034, 1043 (9th Cir. 2010) (citation
omitted).
4. Because the ARB’s determination that
Kossen failed to prove by a preponderance of the
evidence that APA subjected him to an adverse
action is supported by substantial evidence, we need
App. 15
not address the ARB’s legal causation analysis. See
49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R. §
1979.109(a).
In sum, because the ARB neither erred in
concluding that the ALJ did not abuse its discretion
in excluding evidence or in finding that that the
ALJ’s determination that Kossen failed to prove an
adverse action was supported by substantial
evidence, we deny the petition for review.
PETITION FOR REVIEW DENIED.
U.S. Department of Labor Office of
Administrative Law Judges
90 Seventh Street, Suite 4-800
San Francisco, CA 94103-1516
(415) 625-2200
(415) 625-2201 (FAX)
oalj-sanfrancisco@dol.gov
DEPARTMENT OF LABOR
UNITED STATES OF AMERICA
App. 16
CASE NO.: 2019-AIR00011
Issue Date: 02
December 2020.
In the Matter of :
DARREN KOSSEN,
Complainant,
vs.
ASIAN PACIFIC
AIRLINES
Respondents.
ORDER DENYING MOTION
On December 1, 2020, Complainant filed a
Motion entitled “Complainant’s Motion for Relief
Under 29 C.F.R. § 18.94, FRCP 59 New Trial or Alter
Judgment and FRCP 60 Relief from Judgment or
Order/Reconsideration of 11/9/20 Decision and Order
Denying Complaint,” comprising eleven pages.
App. 17
In the Motion, Complainant states he has filed
a Petition for Review of my Decision and Order issued
November 9, 2020 (Motion, p. 2).
Accordingly, under 29 C.F.R. section 18.94,
subsection (a)(2), the Motion is DENIED.
SO ORDERED.
DEPARTMENT OF LABOR
UNITED STATES OF AMERICA
Digitally signed by John C. Larsen
DN: CN=John C. Larsen,
OU= Administrative Law Judge,)=US
DOL Office of Administrative Law
Judges, L=San Francisco S=CA C=US
Location: San Francisco CA
CHRISTOPHER LARSEN
Administrative Law Judge
App. 18
SERVICE SHEET
Case Name:
KOSSEN_DARREN_v_ASIA_PACIFIC_AIRLINE
_
Case Number: 2019AIR00011
Document Title: ORDER DENYING MOTION
I hereby certify that a copy of the above-referenced
document was sent to the following this 2nd day of
December, 2020:
DEPARTMENT OF LABOR
UNITED STATES OF AMERICA
Digitally signed by MARYANNE B. BALLARD
DN: CN- MARYANNE B. BALLARD, OU=LEGAL
ASSISTANT, O=US DOL Office of Administrative
Law Judges, L=San Francisco, S=CA, C=US
Location; San Francisco CA
MARYANNE B. BALLARD
LEGAL ASSISTANT
William C Budigan, Esq.
App. 19
info@budiganlaw.com
Budigan Law Firm 2601 42nd Avenue West
SEATTLE WA 98199
{Electronic - Regular Email}
Acting Regional Administrator
U. S. Department of Labor, OSHA Region 10
U. S. Department of Labor, OSHA
Suite 1280
300 Fifth Avenue
SEATTLE WA 98104-2397
{Electronic - Regular Email}
Steven Pixley, Esq. sppixley@aol.com
Tan Holdings Corporation
TSL Plaza, 3rd Floor Beach Road P.O. Box 501280
GARAPAN
SAIPAN 96950
{Electronic - Regular Email}
OSHA.DWPP@dol.gov
Director Legal Department Directorate of
Whistleblower Protection Programs
U S Department of Labor, OSHA
Room N 4618 FPB
200 CONSTITUTION AVE NW
WASHINGTON DC 20210
{Electronic - Regular Email}
Regional Solicitor
App. 20
U. S. Department of Labor
Suite 3-700
90 Seventh Street
SAN FRANCISCO CA 94103-1516
{Electronic - Regular Email}
Associate Solicitor Fair Labor Standards
FLS-Filings@dol.gov
Associate Solicitor Division of Fair Labor Standards
U. S. Department of Labor
Room N-2716, FPB
200 Constitution Ave., N.W.
WASHINGTON DC 20210
{Electronic - Regular Email}
App. 21
U.S. Department of Labor
Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
DEPARTMENT OF LABOR
UNITED STATES OF AMERICA
In the Matter of:
DARREN KOSSEN,
COMPLAINANT,
v.
ASIA PACIFIC AIRLINES,
RESPONDENT.
ARB CASE NO.
2021-0012
ALJ CASE NO.
2019-AIR-00011
DATE: August 26, 2021
Appearances:
App. 22
For the Complainant:
William C. Budigan, Esq.; Budigan Law
Firm; Seattle, Washington
For the Respondent:
Steven P. Pixley, Esq.; Tan Holdings
Corporation Legal Department; Saipan,
Northern Mariana Islands
Before: James D. McGinley, Chief
Administrative Appeals Judge; Thomas H.
Burrell and Randel K. Johnson, Administrative
Appeals Judges
DECISION AND ORDER
PER CURIAM. Darren Kossen (Complainant)
filed a complaint under the Wendell F. Ford Aviation
Investment and Reform Act for the 21st Century1
(AIR 21), and its implementing regulations,2 alleging
that his former employer, Asia Pacific Airlines
(Respondent), unlawfully discriminated against him
under the AIR 21's whistleblower protection
provisions.3 After a hearing, an Administrative Law
Judge (ALJ) found that Complainant failed to prove
that Respondent had violated the AIR and denied the
complaint. Complainant appealed the ALJ's decision
to the Administrative Review Board (Board). We
affirm.
________________
App. 23
2 49 U.S.C. § 42121 (2000).
3 29 C.F.R. Part 1979 (2020).
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated to the
Board the authority to issue agency decisions in this
matter.4 In AIR 21 cases, the ARB reviews questions
of law presented on appeal de novo but is bound by the
ALJ's factual findings as long as they are supported
by substantial evidence.5 Substantial evidence means
"such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."6
________________
To prove discrimination under AIR 21, the
complainant must demonstrate, by a
preponderance of the evidence, that: (1) he or
she engaged in activity protected under AIR 21;
(2) he or she suffered an adverse personnel
action; and (3) his or her protected activity was
a contributing factor in the adverse action.
Sewade v. Halo-Flight, Inc., ARB No. 20130098, ALJ No. 2013-AIR-00009, slip op. at 6
(ARB Feb. 13, 2015). If the complainant meets
their burden, the respondent may avoid
liability if it proves by clear and convincing
evidence that it would have taken the same
adverse action in the absence of the
complainant's protected activity. Antonellis v.
3
App. 24
Republic Airways, ARB No. 2019-0046, ALJ No.
2018-AIR-00024, slip op. at 5 (ARB Feb. 8,
2021).
4
29 C.F.R. § 1979.ll0(a).
5
Yates v. Superior Air Charter, LLC, ARB
No. 2017-0061, ALJ No. 2015- AIR-00028, slip
op. at 4 (ARB Sept. 26, 2019).
6
Hoffman v. NetJets Aviation, Inc., ARB
No. 2009-0021, ALJ No. 2007-AIR- 00007, slip
op. at 4 (ARB Mar. 24, 2011).
DISCUSSION
Complainant presents two overall objections to
the ALJ's decision below. First, Complainant
seemingly argues that substantial evidence does not
support the ALJ's findings that Complainant failed to
prove by a preponderance of the evidence that
Respondent committed adverse actions against him,
and that an intervening event separated his protected
activity from any alleged adverse action. Second,
Complainant contests the ALJ's decision to exclude
certain exhibits presented by Complainant, and
requests that the Board reopen the record.
Upon review of the ALJ's Decision and Order
Denying Complaint and the parties' briefs, we
conclude that it is a well reasoned ruling based on the
facts and the applicable law. The ALJ's finding that
Respondent did not commit an adverse action against
Complainant is supported by substantial evidence.
The record and or sequence of events do not support
App. 25
Complainant's assertions concerning the failure to
upgrade him to captain, the alleged termination of his
employment, or the alleged blacklisting from future
employment. Complainant's briefings further fail to
persuade the Board that the ALJ erred by excluding
certain evidence presented by Complainant. Thus, we
conclude that ALJ properly denied the complaint and
deny Complainant's request to reopen the record.
Accordingly, we AFFIRM, ADOPT, and
ATTACH the ALJ's Decision and Order Denying
Complaint.
SO ORDERED.
App. 26
U.S. Department of Labor
Office of Administrative Law Judges
90 Seventh Street, Suite 4-800
San Francisco, CA 94103-1516
(415) 625-2200
(415) 625-2201 (FAX)
Department of Labor
United States of America
Issue Date: 09 November 2020
CASE NO.: 2019-AIR-00011
In the Matter of:
DARREN KOSSEN,
Complainant,
vs.
ASIA PACIFIC AIRLINES,
Respondent.
APPEARANCES:
WILLIAM C. BUDIGAN, Esq.,
For the Complainant
App. 27
STEVEN P. PIXLEY, Esq.,
For Respondent
Before
Christopher Larsen
Administrative Law Judge
DECISION AND ORDER DENYING
COMPLAINT
The Complainant, Darren Kossen, brought
this action against Asia Pacific Airlines
(“Respondent” or “APA”) under the whistleblower
provision of the Wendell F. Ford Aviation Investment
and Reform Act for the 21st Century (“AIR 21” or
“the Act”). The Act, 49 U.S.C.S. § 42121, and the
regulations promulgated thereunder, 29 C.F.R. Part
1979, prohibit an air carrier from discriminating
against an employee who reports air carrier safety
concerns.
I. PROCEDURAL BACKGROUND
On February 13, 2018, Mr. Kossen filed a
whistleblower complaint with theU.S. Department of
Labor,
Occupational
Safety
and
Health
Administration (“OSHA”). (RX 1; RX 2.) Respondent
received notice of the complaint on February 27, 2018
and submitted a written statement on March 15,
2018. (RX 1.) On February 1, 2019, OSHA dismissed
the complaint. (RX 2.) Mr. Kossen timely requested a
hearing on the matter. (RX 3.)1 On August 1, 2019,
Respondent submitted its Pre-Hearing Statement. I
App. 28
held the hearing in this matter in Honolulu, Hawaii,
on February 25-28, 2020. Mr. Kossen and his counsel,
William Budigan; Respondent’s counsel, Steven
Pixley; Complainant’s witnesses Brian Dolan, Robert
Erik Herrle, Paul Y. Kobayashi, Jade Tse, and Keith
Vermoy; Respondent’s witnesses Richard Brown,
Ralph Freeman, Joseph San Agustin, and Scott Yoder;
and Respondent’s President, Adam Ferguson, all
appeared. I gave the parties a full and fair opportunity
to present evidence and argument. I admitted
Complainant’s Exhibits (“CX”) 1 through 23, 29, 30,
31, 33 through 36, 40 through 43, 45 through 56, 60
through 63, 65 through 67, 69, 71, 73, 74, 76 through
78, 80, and 82,2 and Respondent’s Exhibits (“RX”) 111. After the hearing, the parties submitted posthearing briefs. The findings and conclusions which
follow are based on a complete review of the entire
record, applicable statutory provisions, regulations,
and pertinent precedent. Although not every exhibit
in the record is discussed below, I carefully considered
each in arriving at this decision.
________________
1 This filing serves as Complainant’s Prehearing Statement.
2 The confusing sequence is discussed more
fully below.
II. ISSUES
App. 29
1. Whether Mr. Kossen engaged in activity protected
by AIR 21;
2. Whether Mr. Kossen suffered an adverse personnel
action(s);
3. If so, whether Mr. Kossen’s protected activity was a
contributing factor in the adverse personnel action(s);
4. Whether Respondent would have taken the same
adverse personnel action irrespective of Mr. Kossen’s
protected activity; and,
5. The damages, if any, to which Mr. Kossen is
entitled.
III. EVIDENCE OF RECORD
1. Summary of Record
AIR 21 hearings are conducted under the Rules of
Practice and Procedure for administrative hearings
before the Office of Administrative Law Judges,
codified at 29 C.F.R. Part 18, subpart A (2015). 29
C.F.R. § 1979.107(a). Formal rules of evidence do not
apply, but Administrative Law Judges (ALJs) must
follow rules or principles designed to assure
production of the most probative evidence. 29 C.F.R.
§1979.107(d). The ALJ may exclude evidence that is
immaterial, irrelevant, or unduly repetitious. Id.
App. 30
Additionally, the ALJ determines the
credibility of witnesses, weighs evidence, draws
inferences from evidence, and is not bound to accept
the opinion or
theory of any particular witness. Bank v. Chicago
Grain Trimmers Assoc., Inc., 390 U.S. 459, 467 (1968),
reh’g denied, 391 U.S. 929 (1968); Atlantic Marine,
Inc. v. Bruce, 661 F.2d 898, 900 (5th Cir. 1981). In
weighing testimony, an ALJ may consider the
relationship of the witnesses to the parties, and the
witnesses’ interest in the outcome, demeanor while
testifying, and opportunity to observe or acquire
knowledge about the subject matter at issue. An ALJ
may also consider the extent to which the testimony
was supported or contradicted by other credible
evidence. Gary v. Chautauqua Airlines, ARB No. 04112, ALJ No. 2003-AIR-038, slip op. at 4 (ARB Jan.
31, 2006). Credibility can also “involve more than
demeanor. It apprehends the overall evaluation of
testimony in the light of its rationality or internal
consistency and the manner in which it hangs
together with other evidence.” Carbo v. U.S., 314 F.2d
718, 749 (9th Cir. 1963); see also Indiana Metal
Prods. v. Nat’l Labor Relations Bd., 442 F.2d 46, 52
(7th Cir. 1971). I have based my credibility findings
on a review of the entire record, according due regard
to the demeanor of witnesses who testified before me,
the logic of probability, and “the testof plausibility,” in
light of the record as a whole. Indiana Metal, 442 F.2d
at 52.
a. Documentary Evidence
App. 31
i. Respondent’s Exhibits
Respondent submitted exhibits RX 1 to 11.
Complainant stipulated to their admission. (Hearing
Transcript, “HT,” pp. 35-37.) Respondent’s Exhibits
included the deposition testimony of David Seest, the
Director of Flight Operations at TransAir Airlines (RX
7); and Peter Broschet, the Director of Human
Resources at Empire Airlines (RX 8). Finding their
testimony consistent, proffered in good faith,and
pertaining to first-hand knowledge and expertise
within their respective roles, I credit their testimony
with full evidentiary weight.
ii. Complainant’s Exhibits
I issued a Pre-Hearing Order in this case on
April 15, 2019. Under the Order, the parties were
obligated to serve on each other both a witness list and
an exhibit index. The exhibit index was to identify
each exhibit, and state what facts the serving party
intended that exhibit to prove (Pre-Hearing Order, pp.
3-4). Additionally, thirty days before the hearing, the
parties were to exchange copies of the exhibits they
intended to introduce at the hearing (Pre-Hearing
Order, p. 4). One of the reasons I issued that order was
because under the Rules of Practice and Procedure,
objections to authenticity of documents offered in
evidence are waived unless made in writing seven
days before the hearing. 29 C.F.R. section 18.82,
subsection (d). Exchanging evidence before the
App. 32
hearing also avoids surprise and saves hearing time.
But when I called the hearing to order in Honolulu, I
learned Mr. Kossen had not complied with the prehearing order. He had brought to the hearing a
number of documents he had never disclosed to the
opposing party.
At the hearing, he withdrew the exhibits he had
numbered 24, 25, 26, 27, 28, 30, 32, 37, 38, 39, 44, 57,
58, 59, 64, 68, 70, 72, 75, 79, and 81. Respondent
raised no objection to the remaining exhibits, so I
received in evidence Claimant’s Exhibits 1through 23,
29, 31, 33 through 36, 40 through 43, 45 through 56,
60 through 63, 65 through 67, 69, 71, 73, 74, 76
through 78, 80, and 82. Later in the hearing, I also
received Claimant’s Exhibit 30 in evidence (HT, p.
525). Though this makes for a more confusing record,
the parties and their counsel had traveled to Honolulu
from tremendous distances, and it would have been
prohibitively expensive to continue the hearing so Mr.
Kossen could re-organize and disclose his
documentary evidence before the parties assembled in
Honolulu a second time.
During the hearing, two additional problems
with Mr. Kossen’s documentary evidence arose. Both
are discussed more fully below. First, Mr. Kossen
asked witness Ralph Freeman to identify an email he
contended Mr. Freeman had received, and Mr.
Freeman testified he had not seen it before. Second,
each party placed in evidence a copy of a letter Mr.
Kossen had written (CX 52 and RX 4), but a relevant
App. 33
date in the body of that letter was different in each
copy.
Over the course of the hearing, Mr. Kossen
tried to admit other documents into evidence. In some
cases, he abandoned the effort, and in other cases, I
excluded the proffered document because it had not
been authenticated. Nonetheless, Mr. Kossen
submitted many of these documents as exhibits to his
“Post-Hearing Brief Regarding Adverse Actions &
Declarations of Service,” received March 13, 2020 (see
fn. 14, infra).3 But his continuing to file documents
excluded from evidence at the hearing does not make
them part of the record of the hearing. Mr. Kossen’s
failure to comply with the Pre-Hearing Order, and the
discrepancies which appeared in some of the
documents he offered, made proper authentication an
issue. I did not receive unauthenticated documents in
evidence at the hearing, and I do not receive them in
evidence now.
_________
3 Among these documents was the purported
exchange of emails on December 6 and 7, 2017, with
Mr. Freeman. Mr. Freeman, who had allegedly had
received one of the December 7, 2017 e-mails, at the
hearing testified he had never seen it before (HT, pp.
507-08, 677-78). I declined to receive that document in
evidence on the strength of that testimony (Id. at 509),
and Mr. Kossen did not try to introduce it through any
other witness.
App. 34
b. Witnesses
i.
Keith Vermoy
Keith Vermoy worked at Asia Pacific Airlines as
station manager from April, 2014 until May of 2019.
(HT, p. 243.) Mr. Vermoy testified to overhearing a
conversation between Adam Ferguson, the President
of APA, and Ralph Freeman in which they decided
“they were going to honor [Mr. Kossen’s] two weeks
and they were going to let him go now.” Id. at 245. Mr.
Vermoy testified he did not remember when the
conversation occurred, but he remembered it was
“[w]hen [Mr. Kossen] was trying to leave to go to
another airline.” Id. at 246. Mr. Vermoy testified it
was well-known that Mr. Kossen had given his twoweek notice and was leaving APA. Id. at 253-54.
Mr. Vermoy also recalled a conversation with
Mr. Freeman in which Mr. Freeman stated APA
would not recommend Mr. Kossen to another
employer. (HT, p. 247.) He does not remember when
this conversation took place. Id. at 257. When asked if
he knew of other pilots whom APA would not
recommend to other potential employers, he testified,
“Well, no. I was not privy to a lot of that...” Id. at
250. Mr. Vermoy stated that other pilots, in addition
to Mr. Kossen, also complained about safety issues. Id.
at 249.
Mr. Vermoy voluntarily resigned from APA
after being informed he would bedown graded
App. 35
following a “safety issue.” (HT, p. 248.) He stated, “I’m
not bitter about it . . . but I’d just like to know why I
was the only guy . . . that got hammered over that
deal. . ..” Id. at 249. Mr. Vermoy appeared at the
hearing by subpoena.Id. at 253.
Mr. Vermoy’s testimony was consistent and
credible, but because of the lack of detail, only
marginally relevant.
ii.
Robert Erik Herrle
Robert Erik Herrle worked as first officer at
Empire Airlines from January 15, 2017 to January 26,
2019. (HT, pp. 394-95.) He did not fly with Mr. Kossen
while at Empire Airlines. Id. at 397. He wasn’t aware
of Mr. Kossen having either a bad or good reputation,
but he “had one employee” who did not want to fly
with Mr. Kossen. Id. at 397-98. He does not remember
the name of that employee. Id.
Mr. Herrle testified Empire Airlines had “[a] lot
of maintenance issues that were unresolved.” (HT, p.
399.) Mr. Herrle defined “stick shaker” and “stick
pusher.” Id. at 401-04. He confirmed the occurrence of
either in flight would be a very serious safety event.
Id. at 413-14. Mr. Herrle was asked to speak about
Respondent’s exhibit, RX 12, in which Mr. Kossen is
described as having experienced a “stick shaker” and
“stick pusher” while acting as a captain for a flight
with passengers. Id. at 401-407. He testified he had
never heard of the incident reported in RX 12 before
the hearing. Id. at 412.
App. 36
With regard to Mr. Herrle’s testimony
pertaining to his own first-hand experience and
knowledge, I find him credible. But for the most part,
his testimony was of little relevance.
iii.
Paul Y. Kobayashi
Mr. Kossen hired Paul Kobayashi to testify as
an expert witness regardingpotential damages. (HT,
p. 424.) In voir dire with Respondent’s counsel, Mr.
Kobayashi stated he had never testified as an expert
witness before.4 Id. at 423. Mr. Kobayashi testified to
the report, “An Earning Capacity Loss Evaluation,”
which he co-drafted at the request of Mr. Kossen. The
report, (CX 50), assessesdamages by determining the
estimated lifetime earnings Mr. Kossen would
accumulate as a pilot. Because I ultimately decide Mr.
Kossen is not entitled torelief under AIR 21, Mr.
Kobayashi’s testimony is moot.
_______________
4 At the hearing, Respondent objected to Mr.
Kobayashi’s inclusion as an expert witness both
as to his qualifications and Mr. Kossen’s noncompliance with the timely disclosure
requirements under the April 15, 2019, PreHearing Order. Respondent raised similar
objections in its post-hearing notice requesting
to present expert testimony regarding damages
and related issues. (“Memorandum in Support
of Motion to Present Post-Hearing Testimony
from an Expert Witness” (March 12, 2020).)
App. 37
On March 16, 2020, Mr. Kossen filed a
Response waiving objection to Respondent’s
request. On March 25, 2020, I granted
Respondent’s request to retain a damages
expert and present testimony regarding
damages. On July 7, 2020, Respondent
submitted the expert report of Dr. Jack P. Suyderhoud, who found issue with much of Mr.
Kobayashi’s testimony. I carefully read and
considered Dr. Suyderhoud’s report. But
because I deny this Complaint, I need not weigh
the conflicting testimony regarding damages.
iv.
Ralph Freeman
Ralph Freeman is the Director of Operations at
APA. He has worked at APA for five and a half years.
(HT, pp. 452-454.) Throughout his career, he has
supervised over 300 pilots. Id. at 454. Mr. Freeman
testified at length about his interactions with Mr.
Kossen while at APA; his involvement in the
personnel decision relating to Mr. Kossen’s separation
with APA; and his views of Mr. Kossen’s pilot skills
while at APA. The hearing transcript spanned nearly
800 pages. For clarity and efficiency, I discuss the
relevant portions of Mr. Freeman’s testimony in
greater detail within the appropriate sections below
within headings numbered 2 to 5.
Mr. Freeman’s testimony was consistent,
proffered in good faith, and pertaining to his firsthand knowledge and expertise within his role as
App. 38
Director of Operations at APA. Accordingly, I credit
his testimony full evidentiary weight.
v.
Scott Yoder
Scott Yoder worked at APA from 2006 until
2017. He was a chief pilot with APA for two years. He
currently serves as first officer at Hawaiian Airlines.
(HT, p. 523-24.)
Mr. Yoder testified he spoke with Mr. Freeman
to discuss whether Mr. Kossen should be promoted to
captain. Id. at 529. Mr. Yoder also testified at length
about the qualifications APA considers when
promoting to captain; his opinion of Mr. Kossen’s pilot
skills while at APA; and an investigation conducted
by the Federal Aviation Administration (FAA) into
several APA pilots’ logbooks. Mr. Yoder also testified
he “never contacted any company regarding Darren
Kossen.” Id. at 532. Mr. Yoder’s testimony is discussed
in further detail within the applicable sections below.
Mr. Yoder’s testimony was consistent, proffered
in good faith, and pertaining to first-hand knowledge
and expertise within his role as chief pilot at APA.
Accordingly, I credit his testimony full evidentiary
weight.
vi.
Joseph San Agustin
Joseph San Agustin is a captain at APA. (HT,
p. 537.) Before working at APA, Mr. San Agustin was
App. 39
a Marine Corps and naval aviator. Id. at 539. He
testified at length about the qualifications necessary
for being an effective captain; what a “stick shaker”
and a ‘stick pusher” are, and the effect either in flight
would have on a career; and his personal interactions
with Mr. Kossen. All applicable parts of his testimony
are discussed in greater detail within the
corresponding sections below.
I found Mr. San Agustin’s demeanor forthright
and candid, and his testimony consistent and
pertaining to his own first-hand knowledge and
expertise within his role at APA. I find Mr. San
Agustin credible and ascribe his testimony full
evidentiary weight.
vii.
Adam Ferguson
Adam Ferguson is the President of Asia Pacific
Airlines. He has been in this position for three-and-ahalf years. (HT, p. 589.) Before working at APA, Mr.
Ferguson was the Director of Cargo for Asia at
Continental Airlines (now United Airlines). Id. at 590.
During 2017, Mr. Ferguson was “transform[ing]
[APA’s] fleet,” and, as a result, traveled extensively for
work. Id. at 591. He testified at length about APA’s
relationship with the FAA; his interactions with Mr.
Kossen while at APA; the process he utilizes when
considering whether to upgrade a pilot to captain;
APA’s interactions with the State of Hawaii regarding
Mr. Kossen’s application forunemployment benefits;
and his understanding of how Mr. Kossen came to no
App. 40
longer work at APA. All relevant parts of his
testimony are discussed in greater detail within the
corresponding sections below.
I found Mr. Ferguson’s testimony consistent
and credible. Accordingly, I afford it full evidentiary
weight.
viii.
Brian Dolan
Brian Dolan testified by telephone from Guam
under subpoena from Mr. Kossen. (HT, p. 663.) Mr.
Dolan flies for a “small commuter” airline. Id. at 653654. He previously worked at APA as a captain and a
“check airman, FAA check airman.” Id. at 655. He
worked at APA for 14 years until the summer of 2017.
Id. Mr. Dolan has a pending AIR 21 claim with APA,
in which he contends APA discriminated against him
because he is Marshallese. Id. at 664. Mr. Dolan
testified to his experience as a person who is
undergoing AIR 21 litigation. Specifically, he stated it
has been financially and emotionally difficult for him,
and he believes it is difficult for him to find a job
because he brought his AIR 21 case. Mr. Kossen was
a witness in Mr. Dolan’s suit against APA. Id. at 664.
While I found Mr. Dolan candid and credible,
his testimony is not relevant to the case at hand. First,
in this case Mr. Kossen is not seeking damages arising
from his choice to pursue an AIR 21 claim, but rather
damages, if any, from APA’s alleged retaliation
against him for his protected activity. Second, Mr.
App. 41
Dolan’s recounting of his personal experience is not
relevant to Mr. Kossen’s experience, much less of any
damages Mr. Kossen has experienced as a result of his
protected activity.
ix.
Jade Tse
Jade Tse rented two rooms within her home to
Mr. Kossen and his children. (HT, p. 696.) She does
not remember exactly when she rented to him, but she
thinks a year and a half before the hearing. Id. Ms.
Tse spoke to Mr. Kossen’s character, including a
change in his personality, resulting in her “kick[ing]
him out.” Id. at 699. Ms. Tse testified Mr. Kossen paid
her $5,000 to care for his two children for two months
while he attended training for a new job out-of-state.
She could not remember the date for when she
provided him childcare but recalled it was after he
was “fired” from his job. Id. at 702.
Ms. Tse did not remember well the timeline or
details of her interactions with Mr. Kossen. She does
not have direct personal knowledge of the
circumstances of Mr. Kossen’s employment, either at
APA or elsewhere. As to her verification of the amount
paid to her for childcare, I fully credit her testimony.
But her testimony is of very little relevance to this
issues in this case.
x.
Richard Brown
App. 42
Richard Brown is the Assistant Director of
Operations at APA. (HT, p. 715.) He has worked at
APA since 2000. Id. at 716. At the time Mr. Kossen
was employed by APA, Mr. Brown was the Director of
Safety there. Id. at 731. Mr. Brown testified at length
about his interactions with Mr. Kossen; the safety
issue reporting procedure at APA; APA’s interactions
with the FAA; and the significance of either astick
shaker or a stick pusher occurring in flight. All
applicable parts of his testimony are discussed in
more detail within the corresponding sections below.
I found Mr. Brown’s testimony consistent and
credible, and I afford it full evidentiary weight.
xi.
Darren Kossen
Darren Kossen testified by deposition, RX 11,
and in person at the hearing.His deposition spans 156
pages, and the transcript to his testimony over the
threeday hearing is nearly twice that. I have carefully
read and considered the entirety of the record, and for
ease of understanding and efficiency, I discuss Mr.
Kossen’s applicable testimony in detail within the
corresponding sections below.
At hearing, Mr. Kossen was not forthright. At
times, he became visibly upset (see, e.g., HT, p. 264),
and on several occasions he would not directly answer
the question being asked (see, e.g., id. at 294). Much
of Mr. Kossen’s testimony was tangential, run-on, offtopic, or unrelated. In addition, his testimony was
App. 43
often inconsistent within itself, both at the hearing
and when considering his earlier deposition
(discussed in detail within later sections, infra). I
found Mr. Kossen’stestimony not only vague and
unhelpful, but also at times cagey and evasive. Not
only was he unable to pin down important dates or
describe a coherent timeline, it was also difficult to
stay on topic. Several times, he cited injustices he
allegedly experienced that were irrelevant to his
complaint, attributing them to APA. For these
reasons, I find his credibility impaired, and afford his
testimony less evidentiary weight, especially when
contradicted by the testimony of more credible
witnesses.
2. Employment at Asia Pacific Airlines
Asia Pacific Airlines (“APA”) is an “all-cargo”
airline headquartered in the Territory of Guam.
(Respondent’s Brief, “RB,” p. 3.) APA also operates a
base in Honolulu, Hawaii. Id. It transports cargo
“throughout the vast Pacific Region” and, in 20162017, employed approximately 20 pilots. Id.
Mr. Kossen was hired as a First Officer by APA
on or about October 10, 2016.5 (HT, pp. 51, 456.) Mr.
Kossen testified he hoped to stay at APA “for as long
as possible, as long as I had a medical and as long as
I was under 65” (id. at 51), but also expected to
progress in his role at APA by July of 2017:
Mr. Kossen:
I wanted to stay at Asia
Pacific and also I wanted to fly – there's
App. 44
always a need to fly a bigger plane.
Always a need. Bigger plane, more
money.
Mr. Budigan:
Okay. So, tell us about your
career progression at APA?
Mr. Kossen:
My career progression was
I was flying as first officer. There's a lot
of movement in the company. I was
expecting to be upgraded to captain, as
tradition there, and I stayed as a first
officer.
Mr. Budigan:
Over what period of time do
you think you should have been a
captain?
Mr. Kossen:
Between May and July of
2017, they needed to upgrade, they
needed captains to fly around and I was
qualified around that time.
Mr. Budigan:
captain?
But they didn't make you
Mr. Kossen:
No.
Id. at 52.
___________________
App. 45
5 Mr.
Kossen’s “Statement of Complaint” to
OSHA lists his first day of employment at APA as
October 9, 2016. (RX 1.)
Adam Ferguson, the President of APA, testified
Mr. Kossen sent him an email before October, 2017,
“formally . . . asking to be put into a captain’s seat.”
(HT,
p.
596.)
Mr.
Ferguson
testified
a
recommendation to promote a first officer to captain
would normally follow from a formal process, often
stemming from the Chief Pilot. Mr. Ferguson found
the email request “arrogan[t]” because Mr. Kossen
had “just ... one year of service with us.” Id. He
explained, “For someone to come out and ask the
president of the company – hey, I want to upgrade
when I go to recurrent [training] – I thought was very
bold.” Id.
Mr. Kossen testified he emailed Mr. Ferguson
just before October, 2017, and learned he would not be
upgraded to captain soon after. (HT, pp. 281-82.) He
learned he would not be upgraded before he attended
the annual training in October, 2017. Id. at 304.
a. Crew Resource Management
Mr. Kossen believes APA should have upgraded
him to captain by July 2017 and that he was
“qualified” to be a captain, having reached 1,000 flight
time hours. (HT, p. 52.)
App. 46
When considering whether to promote a pilot
from first officer to captain,6 Mr. Ferguson testified he
considers “tangible skills,” such as the “1000-hour
rule”7 pertaining to flight hours, as well as “the
intangibles in terms of personality and traits,” which
fall under the concept of Crew Resource Management,
or “CRM.”8 (HT, p. 596.)
Ralph Freeman, the Director of Operations at
APA, testified it is common for pilots to have
thousands of flight hours and still not qualify for
captain, potentially waiting “four or five, six years” for
an upgrade. (HT, p. 461.) Mr. Freemanemphasized
the importance of “attitude,” having “a mentoring
personality,” and the ability to communicate well with
others in the cockpit when considering candidates for
promotion to captain.9 He described CRM as “one of
the most important things we look for” when
evaluating a potential upgrade.10 Id. at 461-462.
_______________
6 Mr. Ferguson testified he is “solely”
responsible for decisions regarding
personnel hiring but he also relies on
monthly “operational calls” with Mr.
Yoder and Mr. Freeman to inform his
personnel decisions. (HT, pp. 613, 61011.)
To qualify as captain, a pilot must,
among other things, have acquired 1,000
hours of flight time. This “1000-hour
rule” formed the basis of Mr. Kossen’s
7
App. 47
complaint to the FAA and is discussed in
more detail within that section.
Crew Resource Management, or
“CRM,” as defined by Joseph San
Agustin (HT, pp. 546-47):
8
Mr. San Agustin:
Crew
Resource
Management, CRM in
short, a requirement
for
any
type
of
manning, whether it's a
three-man crew or a
two-man crew, CRM is
applied in all facets of
the flight to include
proper rest for crew
members, rest/breaks,
on an eight-hour flight
or more. A captain has
to be relieved of his
duties for a bit, to make
sure he doesn't exceed
the eight hours. And
we, as a crew, in
general,
crews
in
general need to be
aware of that and be
cognizant for the issue
of safety and CFR
adherence. So, the crew
has to generally look at
App. 48
each other, they have to
say, okay, who is going
to get out of the seat
and who is going to get
in the seat, and who is
going to take a break,
and it varies and it
changes, but that's how
it's practiced out there.
Mr.
Pixley:
So, is it important that
the crew members get
along and communicate
with each other, so that
they can talk to the
captain about problems
that might happen or
just work together as a
team?
Mr. San That is critical. That is
Agustin: critical in our business,
that communication be
open, is professional
and accurate and clear.
9 “So, you're in the cockpit – you really
need to get along, you need to get along.
And this is where
the
CRM,
this
Crew
Resource
Management, comes into play.” (HT, p.
463.)
App. 49
Mr. Freeman, as the Director of
Operations at APA, provides Mr.
Ferguson with performance reviews of
pilots during regular “operational calls.”
These calls inform Mr. Ferguson’s
personnel decisions. See footnote 6,
supra.
10
Additionally, Joseph San Agustin, a Captain
and Check Airman at APA, evaluates the flying
abilities and capabilities of its pilots. He testified to
the importance of CRM when considering a potential
upgrade. Mr. San Agustin has been a pilot at APA
since May, 1999. (HT, p. 542.) At the hearing, he
testified:
And then there's a recommendation.
There's a recommendation from a hoard
of people who are involved in the
upgrade or step-up upgrade. You get
recommendations of other captains,
recommendation from a check airman,
recommendations from the Director of
Operations, and most specifically the
chief pilot. You really can't – you can't
walk in the door and say – hey, I'm going
to be a captain, you have to gothrough
that like anything else.
Id. at 544. He also testified it was common for pilots
to meet the requirement of 1,000 hours of flight time
but not yet be upgraded to captain:
App. 50
As a matter of fact, I remember when I
was 10 years into my active duty time I
heard that there were first officers at
Delta Airlines with 17,000 hours, and
weren't even in the upgrade syllabus yet.
And I was like – what? But that's the
truth, that's the norm.
Id. Lastly, Mr. San Agustin affirmed the importance
of a pilot’s CRM skills when considering upgrades,
describing CRM as “critical.” Id. at 547.
Additionally, Scott Yoder, former Chief Pilot of APA,
emphasized the importance of seniority and CRM
when considering promotions—“CRM is one of the
key things that we try to look at and keep
coordinated.” (HT, p. 525.)
Lastly, Mr. Kossen agreed an airline may
consider other criteria, in addition to flight time
hours, such as seniority and CRM, when evaluating
the qualifications for a potential promotion to captain.
(HT, pp. 290, 298.) But Mr. Kossen contends CRM
does not include whether pilots get along within the
cockpit:
The getting along doesn't matter. It's the
crew working as a team. Aslong as
they're being professional and doing
their job, and utilizing each other, that's
Crew Resource Management. If they get
App. 51
along, fine. But you're there to do a job,
it's a job.
Mr. Kossen testified he had “good CRM” skills
while at APA. (HT, p. 301.) In his post-hearing brief,
he argues, “Everybody loved Darren Kossen and he
would be employed for a [sic] as long as he wanted and
captain if he did not report safety. Darren Kossen was
a model employee, had zero sick calls and flew the
most amount of company flight hours for the year of
2017.” (Complainant’s Brief, “CB,” p. 62.)
In contrast, APA contends Mr. Kossen’s
“behavior created CRM issues” and “he was not
competent to be a captain. He lacked skill and he had
a bad attitude.” (RB, pp. 44, 43.) Mr. Yoder testified,
“I did not believe that he held those characteristics to
be a captain.” 11 (HT, p. 527.) And, “[b]y the hours, he
was fine, but by ability, no, he was not ready to be a
captain.” Id. at 529. Additionally, Mr. Freeman, who
was in charge of scheduling, testified several pilots
requested not to be assigned to fly with Mr. Kossen,
including a captain who felt it would be “unsafe” if Mr.
Kossen were in his cockpit and that Mr. Kossen was
“stalking” him. Id. At 470, 472. Lastly, Mr. Ferguson,
the President of APA, when asked if he would allow
Mr. Kossen to return to APA as a first officer pilot,
testified, “The only concern I would have is the CRM
aspect of it and how he would be able to get along with
everybody knowing his circumstance.” Id. at 642.
b. Departure from APA
App. 52
Mr. Kossen learned he would not be upgraded
to captain before October, 2017. (HT, p. 304.) He
testified he “was happy with [APA], but also wanted
to be a captain,” and applied to Empire Airlines on
October 3, 2017. Id. at 305. Mr. Kossen accepted a job
offer from Empire Airlines on October 12, 2017. (HT,
p. 306; RX 4; CX 52.) The position at Empire Airlines
was Captain, to begin on either December 9, 2017, (RX
4), or January, 13, 2018, (CX 52).12
In October, 2017, APA gave Mr. Kossen a pay
raise on the anniversary of his hiring (HT, p. 219).
Mr. Freeman testified Mr. Kossen asked for a leave of
absence in December, before Mr. Freeman received
Mr. Kossen’s letter of resignation. (HT, p. 475.) Mr.
Freeman denied this request, because December is
APA’s “heavy” season and APA policy is to not
accommodate leave of absences during December
except for emergencies. Id.
________________
11 Mr. Yoder: “... in order to be captain you have
to have certain traits. And pilot judgment is
one of the big ones, flying ability is another big
one, and just decision making process and
maturity.” (HT,
p. 527.)
12 Oddly, CX 52 and RX 4 are identical in every
respect except one: they show different start
App. 53
dates with Empire Airlines. No witness
attempted to explain why the dates in different
copies of the same documents did not match.
On November 22, 2017, Mr. Kossen gave APA
written two-week notice. (HT, pp. 474-75; RX 5.) In his
resignation letter, he reports he has “been offered a
Captain position”; says he leaves with “a heavy heart”;
will “miss APA”; and “would like to thank everyone at
[APA] for creating a fun and professional work
environment.” (RX 5.) He gives his last day at APA as
December 8, 2017. Id.
After receiving Mr. Kossen’s November 22,
2017 resignation, APA took action to replace him and
Mr. Yoder, hiring two new pilots. (RB, p. 44; HT, p.
609-610.)
On or about December 4, 2017, Mr. Kossen
spoke with Mr. Freeman, who Mr. Kossen contends
talked him into rescinding his resignation. (HT, pp.
327-28, 343.) Mr. Freeman testified he met with Mr.
Kossen, but only to discuss Mr. Kossen’s staying on
through December to support APA’s busy season. Id.
at 476.
Mr. Kossen contends he e-mailed Mr. Freeman
and Peter Nutting, the “[D]irector of [O]perations and
[C]hief [P]ilot” at APA, respectively, on December 6,
2017, rescinding his resignation. (CB, pp. 11-12, 3738; HT, p. 330-31.) But when
he showed what he
claimed was a copy of that e-mail to Mr. Freeman, to
App. 54
whom the alleged e-mail was addressed,13 Mr.
Freeman testified he had never seen it before:
Judge
Larsen:
Okay. Did you receive
this e-mail from Mr.
Kossen?
Mr.
Freeman:
I just read it. I don't
recall the e-mail, sir.
Judge
Larsen:
Have you ever seen it
before today?
Mr.
Freeman:
I would have to say I'm
seeing this for the first
time.
(HT, pp. 507-08; see also id. at 677-78.) Mr. Kossen
also argues Mr. Nutting and Mr. Freeman responded
to this alleged e-mail, constituting acceptance of his
rescission, on December 7, 2017. (CB, pp. 37-38.) But
the record does not support this claim.14
____________________
13 The alleged e-mail was also addressed to Mr.
Nutting, the Chief Pilot of APA at the time. Mr.
Nutting, who died before this matter came to
hearing, did not testify. (RB, p. 1.)
App. 55
14 Complainant’s Brief cites CX 16 and CX 35,
neither of which contain either the purported
December 6 e-mailed rescission letter or the
alleged December 7 e-mailed replies. Mr.
Kossen also cites CX 42, which is a letter from
the State of Hawaii awarding unemployment
benefits. But CX 42 also lacks the alleged
December 6 and 7 e-mails. Additionally, Mr.
Kossen tried unsuccessfully to admitthe alleged
e-mails into evidence through the testimony of
Ralph Freeman, and attached purported copies
of them, although never received in evidence, to
his “Post-Hearing Brief Regarding Adverse
Actions & Declarations of Service,” received
March 13, 2020. But because he never
authenticated them at the hearing, and did not
disclose them to Respondent before the
hearing, I did not receive them in evidence.
On January 11, 2018, Mr. Kossen testified he
received an e-mail from APA “that said that [his]
resignation had been accepted and January 12th was
[his] last day.” (HT, p. 136.)
Mr. Kossen argues he did not resign from APA,
having he e-mailed his rescission on December 6,
2017. Mr. Nutting and Mr. Freeman allegedly
accepted this rescission via e-mail on December 7,
2017, yet APA terminated him on January 11, 2017.
APA stipulates, “It is uncontradicted that Darren
Kossen agreed to work through the month of
December,” but maintains “there was no agreement
App. 56
beyond December.” (RB, pp. 1-2.) APA argues Mr.
Kossen resigned rather than having been terminated,
and contends events after Mr. Kossen’s resignation
became “somewhat muddied.” (RB, p. 1.)
Mr. Ferguson testified it was “solely” his
decision to accept Mr. Kossen’s
resignation. (HT, p. 613.) Mr. Free an confirmed Mr.
Ferguson, as President of APA, makes decisions
regarding personnel hiring and firing. Id. at 515. Mr.
Ferguson testified he relies on monthly “operational
calls” with Mr. Yoder and Mr. Freeman to inform his
personnel decisions.15 Mr. Ferguson decided to send
the January 11, 2018 separation letter to Mr. Kossen
after an operational call during which he learned Mr.
Kossen was on leave around January 1 for training at
Empire Airlines. Id. at 613. At that time, Mr.
Ferguson did not know Mr. Kossen had filed a safety
complaint with the FAA about APA. Id. at 615. APA
argues Mr. Kossen’s November 22, 2017 resignation
caused it to “lose confidence” in him. (RB, p. 43.) APA
argues this “loss of confidence was exacerbated” upon
learning Mr. Kossen had accepted a position at
Empire Airlines on October 12, 2017. Id.
Mr. Kossen maintains he withdrew his
application at Empire Airlines on December 21, 2017
after he wrote APA requesting to rescind his
resignation. He testified he “told them that my dad
had an accident and I couldn’t work there, I need to
not accept the job.” (HT, p. 134; CB, p. 58.) APA, on
App. 57
the other hand, contends Mr. Kossen did not
withdraw his application at Empire Airlines. (RB, pp.
1, 39; HT, pp. 345-49.) In a December 9, 2017 email to
Empire Airlines, Mr. Kossen wrote, “I have an
emergency with my father that happened Friday
night. I will advise when I understand and know more
information. I cannot work effectively at this time and
need to postpone . . . I will need to postpone hiring
until further notice.” (RX 4.) 15 “So, of course I'll query,
you know, my team and ask them. You know, we have
weekly, you know,operations calls, where I can ask
those questions or I can just pick up the phone and
call them. We have monthly staff meetings where we
can address personnel issues.” (HT, pp. 610-11.)
In February 2018, Mr. Kossen applied for
unemployment benefits from the State of Hawaii.
(HT, p. 150.) On March 2, 2018, his application was
denied “on the basis that claimant voluntarily left
employment without good cause.” (CX 42.) On March
19, 2018, Mr. Kossen appealed the decision. Id. APA
did not participate in the appeal. Mr. Ferguson
testified, “I appreciated the effort, he stayed and
worked through December for us. So, if he wanted to
appeal and get, you know, unemployment for a month,
god bless him.” (HT, p. 602.) The decision was
reversed, finding Mr. Kossen was “discharged for
reasons other than misconduct connected with work”
and qualified for unemployment benefits. (CX 42.)
APA also paid Mr. Kossen $5,000 in severance. (HT,
p. 150.)
App. 58
_________________
15 “So, of course I'll query, you know, my team
and ask them. You know, we have weekly, you
know, operations calls, where I can ask those
questions or I can just pick up the phone and
call them. We have monthly staff meetings
where we can address personnel issues.” (HT,
pp. 610-11.)
3. Employment History Following Asia
Pacific Airlines
a. TransAir
In January 2018, Mr. Kossen applied for a
position at TransAir and was interviewed. (HT, pp.
151-52.) On February 3, 2018, he received an offer
letter. (CX 17, 74.) Mr. Kossen contends he had a twoyear employment contract with TransAir and was
terminated from that position on February 8, 2017.
(RX 1.) TransAir contends it never hired Mr. Kossen,
(RX 7, p. 24), contending it did not sign the contract
and “decided not to go ahead with hiring him.” Id. at
23. Mr. Kossen maintains he was offered a captain
position. (RX 1.) TransAir contends he likely would
have begun as a first officer; “we’ve hardly hired
people as captain.” (RX 7, p. 36.)
Mr. Kossen believes Mr. Freeman dissuaded
TransAir from hiring him, effectively blacklisting
him. (CB, p. 50.) David Seest, the Director of
Operations and Flight Operations at TransAir,
App. 59
testified he called Mr. Freeman as a “past employer”
to “see what kind of employee” Mr. Kossen was. (RX
7, p. 29.) Mr. Freeman testified he described Mr.
Kossen as “a good stick.” (HT, pp. 484-485; RX 1.) Mr.
Freeman did not tell Mr. Seest Mr. Kossen was a
“whistleblower.” Id. Mr. Seest described Mr.
Freeman’s response as “the standard HR answer, you
know. Typically, when you call a place, they’d say,
yeah, he worked here, or he didn’t work here. And
that’s pretty much all they give you, so unfortunately,
that’s all I got from Mr. Freeman. Yes.” (RX 7, p. 30.)
When asked if he believed Mr. Freeman was
blacklisting Mr. Kossen, Mr. Seest replied, “No. No.”
Id. TransAir decided to ultimately not hire Mr.
Kossen due to “little red flags” related to Mr. Kossen’s
inability to follow the hiring instructions TransAir
requested and because Mr. Kossen was “pushy and
with an attitude.” Id. at 45, 31.
b. Empire Airlines
Mr. Kossen began employment as a captain at
Empire Airlines on March 3, 2018.16 (RX 10.) Of his
time at Empire Airlines, Mr. Kossen testified,
I was going good at Empire. I applied for
chief pilot, did an interview for a chief
pilot, and then after that it seemed like
there was somethingworking against
me at that company.
App. 60
(HT, p. 178.) In addition to applying for the position of
chief pilot, he also applied for safety officer and “other
stuff” but did not receive these promotions. 17 Id. At
180.
In August of 2018, Mr. Kossen was demoted
from captain to first officer for ten days or
approximately one month.18 Mr. Kossen contends the
downgrade occurred “because first officers had
complained about [him]”. (HT, p. 179.) Empire
Airlines contends the downgrade occurred due to poor
CRM skills, specifically, the improper briefing of a
first officer during takeoff. (RX 8, p. 57.)19
On February 26, 2019, Mr. Kossen, in command of an
aircraft
with
forty-two
passengers
aboard,
experienced a “stick shaker” during an unsuccessful
landing attempt in inclement weather. 20 (HT, pp. 183,
369, 787; RX 8, p. 31.) He was suspended the next day
and terminated on March 7, 2019. (HT, p. 181; RX 10.)
In a
termination letter dated March 7, 2019, Empire
Airlines lists the reason for Mr. Kossen’s termination
as “Unsatisfactory Performance”:
During the review of the stick
shaker/pusher incident that happened
on February 26, 2019, flight 602, and
your
previous
training
records
(PRIA/FAA Blue Ribbon) has led us to
believe that you display substandard
App. 61
performance for a part 121 Airline
Captain.
(RX 8, Exhibit 3 to the deposition.) A “stick shaker”
(HT, pp. 414, 554) and a “stick pusher” (Id. at 554) are
both serious safety situations.
Mr. Kossen filed a whistleblower
complaint with OSHA against Empire Airlines. (HT,
p. 193-194.)
________________
16 There is conflicting testimony about whether
Mr. Kossen commenced the position offered to
him in October of 2017 or if he withdrew that
application and reapplied. Mr. Kossen contends
he withdrew his application in December, and
in February, 2018, reapplied and received a
new offer at Empire Airlines. (HT, p. 170.) APA,
in contrast, argues Mr. Kossen accepted the
position Empire had offered him in October of
2017. (RB, p. 39.) The Director of Human
Resources for Empire Airlines, Peter Broschet,
in his deposition, testified Mr. Kossen did not
withdraw his application with Empire Airlines
in December (RX 8, pp. 40-41), but rather asked
for a later start date due to a “family
emergency.” Id. at 18-19. According to Mr.
Broschet, Empire Airlines granted Mr. Kossen
a new start date of March 3, 2018. Id.
App. 62
17 Mr. Kossen contends Mr. Yoder told Empire
Airlines in July of 2018 that Mr. Kossen “was a
whistleblower,” after which Empire did not
offer Mr. Kossen the chief pilot position. (CB, p.
54.) Mr. Kossen advances this as evidence of
APA blacklisting him. But Mr. Yoder left APA
on November 17, 2017, after eleven years of
employment, and testified he never contacted
any company about Mr. Kossen. (HT, p. 532.)
18 Mr. Kossen testified the demotion occurred
for ten days. (HT, p. 179.) Mr. Broschet stated
the demotion lasted “approximately a month.”
(RX 8, p. 57.)
19 Mr. Broschet during his deposition:
On August 19, 2018 we had an informal
downgrade of Mr. Kossen from captain to
first officer. This downgrade was related
to a takeoff briefing he had. During the
briefing he described his intention to
violate FAA approved procedure for
engine failure during takeoff... (RX 8, p.
57.)
20 A “stick shaker” is an automatic alert which
causes the aircraft’s controls to shake in the
pilot’s hands when the aircraft is approaching
a stall. A stall typically results in a sudden
uncontrolled drop in altitude. A “stick pusher”
App. 63
is a more serious warning of an impending
stall, in which the aircraft’s nose drops
automatically just before the stall. A stall
during a landing, when the aircraft is
necessarily at low altitude, is potentially
catastrophic. See, e.g., HT, pp. 414, 554.
c. Wing Spirit
Mr. Kossen worked as an executive assistant
for Wing Spirit from July 28, 2019 until February 6,
2020. (HT, p. 186-87.) Wing Spirit told Mr. Kossen he
had “a bad attitude”. Id. at 189. Wing Spirit also told
him it believed he had “started rumors about the
company over the weekend” before his termination.
Id.
Mr. Freeman met with Wing Spirit while Mr.
Kossen was employed there. (HT, pp. 682-683.) Mr.
Freeman went to discuss potential job opportunities
with Wing Spirit. Id. While there, Mr. Freeman
disclosed Mr. Kossen “has litigation” involving Mr.
Freeman, and “it could be a conflict of interest.” Id.
Wing Spirit asked no follow up questions. Id.
On December 24, 2019, Mr. Kossen contends he met
with the Vice President of Wing Spirit, who mentioned
a lawsuit with APA. (HT, pp. 192-195.) Mr. Kossen
believes Wing Spirit fired him because of Mr.
Freeman’s reference to “litigation,” that is, this AIR
21 claim. (CB, pp. 54-55.)
App. 64
4. Complaint to the FAA
Before he worked at APA, Mr. Kossen flew as a
first officer at Mesa Airlines. (HT, p. 202.) While at
Mesa, he became aware of Regulation 121.436, which
requires a pilot to accrue at least 1,000 hours of flight
time before qualifying as captain – the “1000-hour
rule.” 14 § C.F.R. 121.436(b); see also HT, p. 68. In
August of 2017, he told the FAA a pilot at Mesa, who
had been promoted from first officer to captain, had in
fact not satisfied the 1000-hour rule and should not
have been upgraded. (CX 61, pp. 317-321.) The FAA
found no safety violation. Id. At 318.
While at APA, Mr. Kossen became aware of an
issue with pilots misreporting their flight times
within the logbooks. (HT, pp. 71-74.) On June 13,
2017, Mr. Kossen emailed the Director of Safety at
APA, Richard Brown, asking, “Who is in charge of
calculating upgrade time and verifying the 1000hrs
for upgrade?” Mr. Brown replied, “That’s my job.” (CX
6.)
On July 26, 2017, Mr. Kossen emailed Mr.
Brown regarding his concern:
I believe that there is a typo in our
manual that will lead/has apa to upgrade
people before meeting a captain
qualification of 1000 hrs as a first officer
under far 121.436a and has possibly
been misunderstood by apa...
App. 65
(CX 11.)
Sometime in the summer or fall of 2017, Mr.
Kossen met with Mr. Brown. (HT, p. 718.) Mr. Brown
testified Mr. Kossen had a question about flight time.
Id. Mr. Brown did not consider the conversation to
involve a safety complaint. Id. APA uses the
“Baldwin” system, which allows people to file safety
reports anonymously. Id. at 719. APA has utilized the
Baldwin reporting system since 2014. Id. at 720. APA
pays $2,000 per month for this system. Id. at 721. Mr.
Kossen received training on this system. Id. at 719.
Mr. Kossen did not file a Baldwin safety report in the
summer or fall of 2017. Mr. Brown testified he
received no anonymous Baldwin reports during the
year 2017 regarding safety issues. Id. at 720.
Sometime in July of 2017, Mr. Kossen met with
Mr. Freeman regarding his concern with misreporting
of flight time hours. (HT, pp. 122-123, 490-492.)
Afterward, Mr. Freeman spoke with Mr. Nutting and
they “went back to the resumes” to confirm flight time
hours were met. Id. at 492.
In October and November of 2017, Mr. Kossen
e-mailed Mr. San Agustin several times regarding
this concern. (CX 7, 10.)
In August of 2017, Mr. Kossen contacted the
FAA seeking “FAA legal interpretation of
international flight times.” (CX 61.) In the same email chain, Mr. Kossen identified a pilot from Mesa
App. 66
Airlines whom Mr. Kossen felt did not qualify under
the “1000-hour rule”. Id. at 317. Mr. Kossen did not
identify APA nor any APA pilots by name within this
e-mail chain.21 Id.
Sometime in November22 or December of 2017,
the FAA began an investigation at APA, asking to see
pilots’ logbooks. (HT, p. 497; see also CX 31, text
message, dated December 15, 2017, from Mr. San
Agustin to Mr. Kossen: “Dash The Feds are looking
into your concerns about 121 flight time...”.) Mr.
Freeman testified it is common for an official from the
FAA to stop by or be in communication with APA. Id.
at 498-499. Mr. Freeman was “sure” this investigation
was because “Darren had brought this issue up.” Id.
at 498. But he did not consider Mr. Kossen a
“whistleblower” – “I was not thinking anything about
whistleblower. Am I aware that the investigation on
log books was because of Mr. Kossen, okay. But as far
as whistleblower, that was not in my thought
process.” Id. at 511. APA experiencedno repercussions
following the completion of the FAA investigation. Id.
at 489. The FAA asked APA to consider ways to
improve its pilot-hiring process. Id.
At the time of separation, Mr. Ferguson
testified he was unaware Mr. Kossen filed a safety
complaint with the FAA regarding APA. (HT, p. 615.)
On October 30, 2018, the FAA closed an
investigation initiated by a complaint from Mr.
App. 67
Kossen. The investigation was closed due to Mr.
Kossen’s noncompliance. (CX 8, p. 45.)
On December 12, 2018, the FAA completed its
investigation into Mr. Kossen’s “air carrier safety
allegations,” finding a safety violation occurred. (CX
8, p. 44.) Similarly, on November 2, 2018, the FAA
completed an investigation into a “safety allegation”
filed by Mr. Kossen, finding a violation occurred and
APA “may have pilots who have falsified their flight
hours.” (CX 9, p. 57.)
_____________
21 In his post-hearing brief, Mr. Kossen
references
various
“FAA
Hotline
Report[s]” allegedly made during July of
2017, including one that identified pilots
Francis Lessett, Dennis Nutting, and
Loveman Calero by name. (CB, p. 17.)
But CX 61 shows no helpful identifying
information. Pages 322 to 326 appear to
be screen shots of submission screens to
the FAA Hotline Reporting Form. There
are no corresponding dates, except for
one, June 10, 2018 – a date that falls well
after Mr. Kossen’s separation from APA
in January, 2018. (CX 61, p. 325.)
22 Mr. Kossen writes, “On November 24,
2017, I became aware that the FAA was
investigating the safety concerns I
brought up to management.” (RX 1.)
App. 68
The record lacks the specific filing
which triggered this investigation.
Therefore, the exact date and contents of
the relevant FAA complaint(s) and the
precise date of the ensuing FAA
investigation do not appear in the record.
23
5. OSHA Complaint
On February 13, 2018, Mr. Kossen filed a
whistleblower complaint with OSHA. (RX 2.) He
alleged he “was terminated and blacklisted in
retaliation for bringing up FAA safety violations to
company management and for filing a workers
compensation claim.” Id. The complaint alleged the
adverse action occurred on or about February 8, 2018.
Id. On February 1, 2019, the Secretary of Labor found
a violation could not be sustained because Mr. Kossen
failed to cooperate in the investigation. Id.
Mr. Kossen seeks reinstatement or, in the
alternative, damages. (CB, p. 63.)
IV. ANALYSIS
The Legal Standard and Burdens of Proof
It is a violation of AIR 21 “for any air carrier or
contractor or subcontractor of an air carrier to
intimidate, threaten, restrain, coerce, blacklist,
discharge or in any other manner discriminate
App. 69
against any employee” because the employee has
engaged in protected activity. 29 C.F.R. § 1979.102(b)
Under the Act a complainant engages in protected
activity if he:
1) provided, 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
Administration or
any other provision of Federal law relating to
air carrier safety under this subtitle [49 USCS
§§ 40101 et seq.] or any other law of the United
States;
(2) has filed, caused to be filed, or is about to file
(with any knowledge of the employer) or cause
to be filed a proceeding relating to any violation
or alleged
violation of any order, regulation, or standard
of the Federal Aviation Administration or any
other provision of Federal law relating to air
carrier safety
under this subtitle [49 USCS §§ 40101 et seq.]
or any other law of the United States;
(3) testified or is about to testify in such a
proceeding; or
App. 70
(4) assisted or participated or is about to assist
or participate in such a proceeding.
49 U.S.C. § 42121(a).
A two-pronged burden-shifting framework
applies in whistleblower claims under AIR 21. 42
U.S.C § 42121(b). The complainant has the initial
burden of satisfying the first prong of the two-part
test. Id.
To satisfy the first prong, the complainant must
demonstrate, by a preponderance of the evidence,
that: (1) he or she engaged in protected activity; (2)
the employer knew of the protected activity; (3) he or
she suffered an adverse personnel action; and (4) his
or her protected activity was a contributing factor in
the adverse action. 49 U.S.C. § 42121(b)(2)(B);
Clemmons v. Ameristar Airways, Inc., ARB Nos. 05048, 05-096, ALJ No. 2004-AIR-11 (ARB June 29,
2007). If the complainant cannot demonstrate each of
the four elements, then his or her case is unsuccessful,
and the employer prevails.
If the complainant demonstrates all four
elements, the burden shifts to the employer to show,
by clear and convincing evidence, that it would have
taken the same adverse personnel action
notwithstanding the protected activity. Cain v.
BNSF Railway Co., ARB No. 13-006, ALJ No. 2012-
App. 71
FRS-019, slip op. at 3 (ARB Sep. 18, 2014).
a. Complainant’s Prima Facie Case
1. Protected Activities
Protected activities under the Act include
providing the employer or (with knowledge of the
employer) the Federal Government with “information
relating to any violation or alleged violation of any
order, regulation, or standard of the Federal Aviation
Administration or any other provision of Federal law
relating to air carrier safety . . . ” 49 U.S.C.A. §
42121(a)(1); see also 29 C.F.R. § 1979.102. The
complaints may be oral or in writing, but must be
specific in relation to a given practice, condition,
directive, or event. See Simpson v. United Parcel
Service, ARB No. 06-065, ALJ No. 2005-AIR-00021
(ARB Mar. 14, 2008); but see Occhione v. PSA Airlines,
Inc., ARB No. 15-090, ALJ No. 2011-AIR-12 (ARB
July 26, 2017). Though the complainant need not
prove an actual violation, the complainant's belief
that a violation occurred must be objectively
reasonable. See Douglas v. Skywest Airlines, Inc., ARB
Nos. 08-070, 08-074, ALJ No. 2006-AIR-00014 (ARB
Sept. 30, 2009). A reasonable belief has both objective
and subjective components. Hukman v. U.S. Airways,
Inc., ARB No. 15-054, ALJ No. 2015-AIR-3 (ARB July
13, 2017). To prove subjective belief, a complainant
must prove he or she actually “believed that the
conduct he or she complained of constituted a
violation of relevant law.” Id. at 4-5. To determine
App. 72
whether a subjective belief is objectively reasonable,
the ALJ 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.” Id.
Here, no one disputes Mr. Kossen engaged in
protected activity. Sometime between June and
December of 2017, he filed at least one complaint with
the FAA relating to safety concerns at APA. (CB, p.
17.) While the evidence of record includes August
2017 communications with the FAA regarding legal
interpretations of the “1000-hour rule,” these
communications identify Mesa Airlines and name a
specific pilot at Mesa Airlines, both for alleged
violations of the “1000-hour rule.” (CX 61.) But these
communications do not identify APA nor any APA
pilots by name. Id. Moreover, the included FAA
Hotline submission forms do not reveal any content or
dates of these complaints, other than one date – June
10, 2018 – which falls nearly six months after Mr.
Kossen’s separation with APA. (CX 61, p. 325.) Thus,
the evidence of record does not include Mr. Kossen’s
actual complaint naming APA during this time.
But the evidence suggests it is very likely Mr.
Kossen made a complaint that resulted in an
investigation of APA sometime in November or
December of 2017. Several APA employees
acknowledged an investigation pertaining to the
“1000-hour rule.” (HT, p. 497; see also CX 31.) In
App. 73
addition, at least two APA employees testified the
investigation was directly linked to the very concerns
Mr. Kossen had raised with them. Mr. Freeman, the
Director of Operations at APA at the time of the
investigation, was “sure” the ensuing investigation
was because Mr. Kossen “had brought this issue up.”
(HT, p. 498.) Similarly, in December of 2017, Mr. San
Agustin wrote Mr. Kossen, within a text message, “
The Feds are looking into your concerns...” (CX 31.)
Lastly, the record shows the FAA, in December of
2018, completed an investigation pertaining to “air
carrier safety allegations” raised by Mr. Kossen and
concluded APA “may have pilots who have falsified
their flight hours.” (CX 9, p. 57.) While it is unclear
when the complaint which triggered this investigation
was filed, the record demonstrates Mr. Kossen filed an
FAA complaint specifically naming APA.
Given the documented history of engagement
with the FAA, the documented exchanges with APA
officials regarding the safety issue, and the occurrence
of an investigation into the very same issue Mr.
Kossen raised, I find Mr. Kossen engaged in protected
activity sometime between June and December of
2017 through the filing of a complaint with the FAA
relating to safety concerns at APA.
2. Knowledge
To prevail under the Act, a complainant must
demonstrate by a preponderance of the evidence that
the employer knew of his protected activity. 49 U.S.C.
App. 74
§ 42121(b)(2)(B); see Clemmons, slip op. at 9.
“Preponderance of evidence” means the greater
weight of evidence; moreover, superior evidentiary
weight, though maybe “not sufficient to free the mind
wholly from all reasonable doubt, is still sufficient to
incline a fair and impartial mind to one side of the
issue rather than the other.” Brune v. Horizon Air
Indus., Inc., ARB No. 04-037, ALJ No. 2002-Air-8, slip
op. at 13 (ARB Jan. 31, 2006). Lastly, knowledge of a
protected activity may be shown by circumstantial
evidence. Kester v. Carolina Power & Light Co., ARB
No. 02-007, ALJ No. 2000-ERA-31, slip op. at 4 (ARB
Sept. 30, 2003).
In general, it is not enough for a complainant to
show the employer, as an entity, knew of his protected
activity. Rather, the complainant must show the
decision makers who subjected him to the alleged
adverse actions knew of his protected activity. Peck v.
Safe Air Int’l, Inc., ARB Case No. 02-028 (ARB: Jan.
30, 2004), slip op. at 11. Even where the complainant
cannot show the decision maker who ultimately took
the adverse action knew of the protected activity, he
or she may establish knowledge by showing another
person who had “substantial input” into the alleged
adverse action knew of the protected activity. Kester,
slip op. at 4 (finding knowledge where an employee
who had “substantial input into the decision to fire”
the complainant had knowledge of the protected
activity). Thus, an employer can not evade a finding of
knowledge where a decision may have been
substantially influenced by an individual who knew of
App. 75
the activity but the ultimate decision maker remained
unaware.
The record demonstrates by a preponderance of
the evidence that Respondent knew of Mr. Kossen’s
protected activity of filing a complaint with the FAA.
Mr. Ferguson testified he was unaware of Mr.
Kossen’s protected activity, and testified it was his
decision to accept Mr. Kossen’s resignation. (HT, p.
613.) According to Mr. Freeman, Mr. Ferguson, as
President of APA, is solely responsible for personnel
decisions. Id. at 515. But Mr. Ferguson also testified
he relies on monthly “operational calls” with Mr.
Yoder and Mr. Freeman to inform his personnel
decision making. Id. at 610-611. Furthermore, Mr.
Ferguson decided to send the January 11, 2018
separation letter to Mr. Kossen after one of these
operational calls. Id. at 613. While Mr. Freeman
testified he did not think of Mr. Kossen’s actions as
whistleblowing, he did acknowledge he knew of Mr.
Kossen’s protected activity – Mr. Freeman was “sure”
the ensuing FAA investigation into flight time hours
was because “Darren had brought this issue up.” Id.
at 498.
Thus, I find by a preponderance of evidence
Respondent knew of Mr. Kossen’s protected activity,
given the evidence of (1) Mr. Freeman’s knowledge of
the proteced activity; (2) Mr. Ferguson’s reliance on
operational calls with Mr. Freeman to inform his
personnel decisions; and, (3) Mr. Ferguson’s decision
App. 76
to draft a separation letter immediately after one of
these operational calls.
3. Adverse Action
Air carriers may not intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any other
manner discriminate against any employee who has
engaged in protected activity. See 29 C.F.R. §
1979.102(b) (AIR 21); see also 29 C.F.R. §
24.2(b)(2003) (adopting similar definitions under
similar whistleblower protection statutes). But not
everything that makes an employee unhappy
constitutes an actionable adverse action under the
Act. Trimmer v. US DOL, 174 F.3d 1098, 1103 (10th
Cir. 1999). An actionable adverse action must be
“more than trivial, either as a single event or in
combination with other deliberate employer actions.”
Williams v. American Airlines, ARB No. 09-018, ALJ
No. 2007-AIR-004 (ARB Dec. 29, 2010); Menendez v.
Halliburton, ARB Nos. 09-002, 09-003, ALJ No. 2007SOX-005 (ARB Sept. 13, 2011) (emphasis added).
Thus, “[a]lthough AIR 21 protections are not reserved
for especially detrimental employment actions, such
as termination, suspension, demotion, or loss of status
or pay, these are certainly the most obvious examples
of an adverse employment action.” Harding v. So. Cal
Precision Aircraft, ALJ No. 2011-AIR-005, slip op. at
22 (19 December 2011). Lastly, a complainant must
file his complaint with OSHA within 90 days of an
alleged adverse action for the complaint to be timely
under the Act. 49 U.S.C. § 42121(b)(1).
App. 77
Mr. Kossen puts forth a lengthy list of alleged
adverse actions on the part of Respondent. (CB, pp. 69.) Many of these actions are vague, broad, and
unaddressed or unsubstantiated beyond being
mentioned within this list.24 Within his complaint to
OSHA, Mr. Kossen lists two alleged adverse activities
which occurred on or about February 8, 2018:
termination and blacklisting. (RX 2.) I understand
this lengthy list, taken in entirety, along with Mr.
Kossen’s OSHA complaint, to comprise essentially
three distinct allegations: (1) Respondent’s denial of
his request to be upgraded to captain; (2)
Respondent’s alleged “blacklisting” of Mr. Kossen;
and, (3) Respondent’s alleged termination of Mr.
Kossen’s employment.
a. Captain Upgrade
Mr. Kossen alleges APA’s denial of his request
for a captain upgrade constituted an adverse action in
retaliation to his protected activity. But, first, since
the record does not establish when the protected
activity occurred, Mr. Kossen cannot show the failure
to upgrade was retaliatory. Mr. Kossen testified he
learned he would not be upgraded to captain before
October, 2017. (HT, p. 304.) This prompted his
application to Empire Airlines on October, 3, 2017,
because he “wanted to be a captain,” and his ultimate
acceptance of a captain job at Empire Airlines on
October 12, 2017. Id. at 305-306. On the record before
me, it is as possible his protected activity occurred
App. 78
after October of 2017 as it is that it occurred before.
And if it occurred after the failure to upgrade, it
cannot have been a contributing factor in the failure
to upgrade. Establishing the correct temporal
relationship between the two is part of Mr. Kossen’s
prima facie burden.
Second, APA’s witnesses contend Mr. Kossen
was not qualified to be promoted to captain. Mr.
Kossen himself contends he was fully qualified, but he
has presented no evidence to show APA promoted
even one other equally or less-qualified first officer to
captain at any time.25 Absent any evidence of
disparate treatment, I cannot, on the record before
me, conclude APA’s failure to promote Mr. Kossen was
an adverse action. Mr. Kossen is not sufficiently
credible for me to conclude he was qualified for
promotion simply because he says he was.
Third, Mr. Kossen filed his OSHA complaint on
February 13, 2018. (RX 2.) The alleged adverse action
occurred before October, 2017. A timely complaint
must have been filed within 90 days of the date upon
which the employee knew or should have known of the
adverse action. Peters v. American Eagle Airlines, Inc.,
ARB No. 04-140, ALJ Case No 2004-AIR-00009 (Apr.
3, 2007). Mr. Kossen’s complaint about this alleged
adverse action falls outside the 90 day window and is,
therefore, untimely.
____________
App. 79
For example, Mr. Kossen lists “making
threats” without expanding upon this
allegation anywhere within the 799-page
hearing transcript or 86 admitted complainant
exhibits; lists “denied overtime” as an adverse
action; and lists promotion of a “new hire” to
captain “instead of Darren Kossen” as just a
few examples of the many allegations put forth.
(CB, p. 6.)
24
In his post-hearing brief, Mr. Kossen
suggests APA may have hired Captains Sergei
Rybakov, Max Griffin, and Dennis Nutting as
captains in reference to him (CB, p. 5), but this
assertion in the brief is unsupported by any
evidence in the record about the comparative
qualifications of any of the four.
25
b. Alleged Blacklisting
Mr. Kossen contends APA blacklisted him
because of his protected activity. Specifically, he
argues APA “had contact with Empire [Airlines] to
poison his well” and APA engaged in blacklisting by
“not providing Mr. Kossen with a recommendation
letter.” (CB, p. 8.) Mr. Kossen also argues Mr.
Freeman dissuaded TransAir from hiring him,
effectively blacklisting him. (CB, p. 50.) Lastly, Mr.
Kossen believes he was fired from Wing Spirit in
December of 2019 because Mr. Freeman informed the
airline of his AIR 21 complaint.
App. 80
The record does not demonstrate that
Respondent blacklisted Mr. Kossen. First, without
further evidence, I find APA’s failure to provide a
recommendation
letter
does
not
constitute
blacklisting, per se. Second, Mr. Kossen’s belief that
APA tampered with his position at Empire Airlines
hinges on his argument that Mr. Yoder spoke with
Empire Airlines in July of 2018, resulting in Mr.
Kossen not being offered a chief pilot position. (CB, p.
54.) Not only is there no evidence of record to
substantiate the conversation between Mr. Yoder and
Empire Airlines, but also, by November of 2017, Mr.
Yoder had already left APA (see fn. 17, supra).
Third, the record does not show Mr. Kossen had
a bona fide contract with TransAir, which it breached
after speaking with Mr. Freeman. If anything, the
record indicates precisely the opposite – that no such
contract had been finalized yet. Mr. Freeman provided
only neutral feedback,26 and TransAir decided against
employing Mr. Kossen because of several “red flags”
regarding Mr. Kossen’s own demeanor and
professionalism. Other than speculation, there is no
evidence to suggest Mr. Freeman in any way alerted
TransAir to those “red flags,” and Mr. Freeman
testified he did not.
Fourth, the record demonstrates only that Mr.
Freeman was invited to speak with Wing Spirit about
job opportunities, and while there, mentioned Mr.
Kossen had filed a lawsuit in which Mr. Freeman was
involved. The record does not show Mr. Freeman
App. 81
mentioned the context or nature of this lawsuit, as Mr.
Kossen believes. And it does not follow that a passing
reference to “litigation” between Mr. Kossen and APA
shows a conscious attempt to harm Mr. Kossen. To be
sure, filing an AIR 21 complaint may cause problems
for a pilot in a close-knit community, but there is no
evidence Mr. Freeman identified the “litigation” as an
AIR 21 complaint, or suggested the “litigation” lacked
merit, or in any way implied Mr. Kossen’s position in
the “litigation” was unreasonable. Mr. Kossen asks
me to infer as much from the record, but I find
insufficient evidentiary support for such a conclusion
in the record before me.
Fifth, and finally, Mr. Kossen’s later employers
not only deny any blacklisting, but offer other reasons
for their actions. TransAir discovered “red flags”
independently of APA; Empire Airlines reports poor
CRM skills, a month-long demotion, and serious
safety events with passengers onboard; and Wing
Spirit told Mr. Kossen of his “bad attitude” and
reportedly said he was spreading “rumors” about the
company.
In sum, I find insufficient evidence to support a
conclusion that APA blacklisted Mr. Kossen, however
sincerely he may believe it happened. But his own
unsupported suspicion – particularly when coupled
with express denials from other witnesses, and
evidence of a serious performance issue at Empire
Airlines – does not carry the day on this issue.
App. 82
________
The Director of Operations and Flight
Operations at TransAir called APA while it was
considering hiring Mr. Kossen to “see what
kind of employee” he was. (RX 7, p. 29.) He
spoke with Mr. Freeman, who gave “the
standard HR answer, you know. Typically,
when you call a place, they’d say, yeah, he
worked here, or he didn’t work here. And that’s
pretty much all they give you, so unfortunately,
that’s all I got from Mr. Freeman.” Id. at 30.
26
c. Alleged Termination
Mr. Kossen carries the burden of establishing
an alleged adverse action by a preponderance of
evidence. He must show his interpretation of events is
supported by superior evidentiary weight “to incline a
fair and impartial mind to one side of the issue rather
than the other.” Brune, supra, slip op. at 13.
Here, I find Mr. Kossen does not meet that
burden with respect to his alleged termination in
January, 2018. There is no question Mr. Kossen
himself resigned on November 22, 2017. And there are
a number of material discrepancies between his
testimony and the testimony of several credible
witnesses. Because Mr. Kossen’s own credibility is
impaired, I cannot take his testimony as true and the
App. 83
contradictory testimony as false, especially where the
contradictory witness was credible.
Mr. Kossen and Respondent disagree on many
material issues. Primarily, they do not agree on
whether the January 12 exit date constituted Mr.
Kossen’s resignation or termination. Both parties
acknowledge Mr. Kossen “agreed to work through the
month of December,” but Respondent maintains
“there was no agreement beyond December.” (RB, pp.
1-2.) There is no documentary evidence of any
agreement between APA and Mr. Kossen extending
his post-resignation employment either temporarily
or permanently.
There is no question Mr. Kossen took a job with
a competitor on October 12, 2017. There is also no
question he resigned from APA on November 22, 2017.
His letter of resignation (RX 5) is unequivocal on its
face. Mr. Kossen argues he later effectively
“rescinded” his resignation, apparently contending
the rescission restored his original employment
status, so that the end of his employment in January,
2018, must have been a termination.
But as Respondent observes, the events
following Mr. Kossen’s unequivocal resignation are
“muddied.” (RB, p. 1.) There is no written record of the
purported rescission in the record (see fn. 14, supra).
In addition, APA’s hiring of replacement personnel
(RB, p. 44; HT, p. 609), and the credible testimony of
Mr. Freeman and Mr. Ferguson, suggests APA did not
App. 84
understood Mr. Kossen, after “rescinding,” intended
to stay at APA indefinitely.
Moreover, there is conflicting evidence about
whether Mr. Kossen ever told Empire Airlines he had
decided to stay at APA indefinitely. Mr. Kossen
testified he did, but the record indicates Mr. Kossen emailed Empire Airlines asking to “postpone” his start
date because of a family emergency, rather than
withdrawing his application in order to stay at APA.
(RX 4.) Mr. Broschet of Empire Airlines also
understood Mr. Kossen had merely postponed his
start date. (Fn. 16, supra.) Mr. Kossen’s testimony
about having rescinded his APA resignation would be
more persuasive if the record showed he
simultaneously made a clean break with Empire
Airlines as well. It does not. Neither is there any
suggestion in the record that APA had any intention
of terminating Mr. Kossen’s employment at any time
before he resigned. Managers at the hearing
expressed some criticisms of his performance as an
employee, and the company did not promote him to
captain when he sought the promotion; but there is
nothing in the record to show anyone at APA had any
thought of terminating his employment, or even
disciplining him,27 before he submitted his faciallyunequivocal resignation on November 22, 2017. On
the contrary, just in the previous month, APA gave
Mr. Kossen a pay raise (HT, p. 319). Nothing in the
record suggests Mr. Kossen’s employment at APA
would have ended in 2018 if Mr. Kossen had not first,
of his own volition, resigned from APA in 2017. The
App. 85
confusing chain of events which followed his
resignation – the purported “rescission” of his
resignation, his continuing to work for APA while
maintaining a start date for a new job at Empire Airlines, and APA’s hiring of replacement
personnel – was set in motion not by any act of APA’s,
but by Mr. Kossen’s resignation in order to take a job
as a captain with another airline.
For all of these reasons, the record does not
demonstrate Mr. Kossen’s version of these events by a
preponderance of the evidence. With respect to the
alleged termination, Mr. Kossen does not establish a
prima facie showing of an adverse action.
___________________
27 As discussed above, there is no evidence,
beyond Mr. Kossen’s own conclusory testimony,
that APA’s failure to grant the promotion he
sought to captain was in any way
discriminatory or retaliatory, or in any way a
departure from its usual practice.
4. Causal Link
Finally, a successful AIR 21 complainant must
establish the protected activity was a contributing
factor to any adverse action. 49 U.S.C. § 2121(b)(2)(B).
That is, the complainant must show the adverse
action was motivated, at least in part, by a retaliatory
or discriminatory response to complainant’s protected
App. 86
activity. A discriminatory reference may be inferred
where the adverse action closely follows the protected
activity in time. But temporal proximity is not always
dispositive. Thompson v. Houston Lighting & Power
Co., ARB No. 98-101, ALJ Nos. 96-ERA-34, 38, slip op.
at 6-7 (Mar. 30, 2001). Furthermore, “if an intervening
event that independently could have caused the
adverse action separates the protected activity and
the adverse action, the inference of causation is
compromised." Clark v. Pace Airlines, Inc., ARB No.
04-150, ALJ No. 2003-AIR-28, slip op. at 12-13 (ARB
Nov. 30, 2006).
Considering an intervening event is essential to
upholding the intended pupose of the Act.
Whistleblower provisions “are intended to promote a
working envronment in which employees are
elatively free from the debilitating threat of
employment reprisals for publicly asserting company
violations of statutes protecting the environment.”
Passaic Valley Sewerage Comm'rs v. Department of
Labor, 992 F.2d 474, 478 (3d Cir.1993). But “[t]hey are
not, however, intended to be used by employees to
shield themselves from the consequences of their own
misconduct or failures.” Trimmer v. U.S. Dep't of
Labor, 174 F.3d 1098, 1104 (10th Cir. 1999). A
complainant cannot use his whistleblower status to
evade termination for nondiscriminatory reasons.
Trimmer, 174 F.3d 1098 at 1104. Thus, the occurrence
of an intervening event, especially one undertaken by
the employee himself, may undermine a causal
App. 87
inference between the protected activity and the
alleged adverse action.
Here, Mr. Kossen’s resignation separates his
alleged termination from his protected activity. He
submitted his resignation letter on November 22,
2017. In this letter, he acknowledges he has accepted
a job as a captain with another airline. He also
requests time off in January for training for his new
position at Empire Airlines. (RB, p. 43.) I find Mr.
Kossen’s November 22, 2017, resignation letter
constitutes an “an intervening event that
independently could have caused” his final departure
from the company. Clark, supra, slip op. at 12-13. By
submitting his resignation, he risked his position at
the company (the very purpose of a resignation is to
sever employment, after all). The resignation caused
APA to hire a new pilot in his place. (HT, pp. 609-610.)
Thus, I find Mr. Kossen cannot use his whistleblower
status to “shield” himself from the foreseeable
consequences he put into play by resigning,
particularly in light of the conflict between his
hearing testimony and his statements to Empire
Airlines after his purported “rescission” of that
resignation. Trimmer at 1104.
V. ORDER
Mr. Kossen’s claim for relief under AIR 21 is
DENIED.
App. 88
SO ORDERED.
DEPARTMENT OF LABOR
UNITED STATES OF AMERICA
Digitally signed by John C. Larsen
DN: CN=John C. Larsen,
OU= Administrative Law Judge,)=US
DOL Office of Administrative Law
Judges, L=San Francisco S=CA C=US
Location: San Francisco CA
CHRISTOPHER LARSEN
Administrative Law Judge
NOTICE OF APPEAL RIGHTS: To appeal, you
must file a Petition for Review (“Petition”) with the
Administrative Review Board (“Board”) within ten
(10) business days of the date of the administrative
law judge’s decision.
Your Petition is considered filed on the date of its
postmark, facsimile transmittal, or e-filing; but if you
file it in person, by hand-delivery or other means, it is
filed when the Board receives it. See 29 C.F.R. §
1979.110(a). Your Petition must specifically identify
the findings, conclusions or orders to which you object.
You waive any objections you do not raise specifically.
See 29 C.F.R. § 1979.110(a).
App. 89
At the time you file the Petition with the Board, you
must serve it on all parties as well as the Chief
Administrative Law Judge. You must also serve the
Assistant Secretary, Occupational Safety and Health
Administration and the Associate Solicitor, Division
of Fair Labor Standards, U.S. Department of Labor,
Washington, DC 20210. See 29 C.F.R. § 1979.110(a).
If no Petition is timely filed, the administrative law
judge’s decision becomes the final order of the
Secretary of Labor pursuant to 29 C.F.R. § 1979.110.
Even if a Petition is timely filed, the administrative
law judge’s decision becomes the final order of the
Secretary of Labor unless the Board issues an order
within thirty (30) days of the date the Petition is filed
notifying the parties that it has accepted the case for
review. See 29 C.F.R. §§ 1979.109(c) and 1979.110(a)
and (b).
IMPORTANT
APPEALS:
NOTICE
ABOUT
FILING
The Notice of Appeal Rights has changed
because the system for electronic filing is
changing beginning on Monday, December 7,
2020, at 8:30 a.m.
Thus, if you intend to e-file your appeal online
on or after December 7, 2020, at 8:30 a.m., be sure
to allow sufficient time to register under the
new system and to learn how to file an appeal.
App. 90
You may pre-register to use the new system
from November 9, 2020, until 5:00 pm EST on
December 3, 2020. As part of the migration to
EFS, the Board’s current EFSR system will go
offline permanently at 5:00 pm Eastern
Standard Time (EST) on December 3, 2020. This
means that you will not be able to e-file any
appeals or other documents with the ARB after
5:00 pm EST on December 3rd through
December 7th, at 8:30 a.m. If you intend to file
on these dates, please plan to file by other
means (conventional mail, hand delivery, etc.).
Although you may pre-register earlier, you will
not be able to file using the new system until
December 7, 2020, at 8:30 a.m.
In addition, the Office of the Chief Information Officer
(“OCIO”) will conduct an informational webinar on
how to register and how to conduct basic filing
operations:
Tuesday, November 17, 1:00 to 2:00 p.m. EST.
Webinar link:
https://usdolevents.webex.com/usdolevents/ons
tage/g.php?MTID=e7dbc7a
29dbb7f5ec26f4a717032cfb02
US Toll Free 1-877-465-7975
US Toll 1-210-795-0506
Access code: 199 118 1372
Password for all meetings: Welcome!68
App. 91
Information for webinars on the new system
will also be available on the OALJ
(www.dol.gov/agencies/oalj), the ARB
(www.dol.gov/agencies/arb), and the new EFS
(https://efile.dol.gov/) websites.
Filing Your Appeal Online
If you e-file your appeal on or before 5 p.m. on
December 3, 2020, you must use the Board’s current
Electronic File and Service Request (EFSR) system at
dolappeals.entellitrak.com. Again, the Board’s
current EFSR system will go offline at 5 p.m. Eastern
Time on December 3, 2020, for deployment related
activities. Please plan your filings accordingly.
Information regarding registration for access to the
EFSR system, a step by step user guide, and answers
to FAQs are found at that website link. If you have
any questions or comments, please contact BoardsEFSR-Help@dol.gov Beginning on Monday, December
7, 2020, at 8:30 a.m., the U.S. Department of Labor
will implement a new eFile/eServe system (“EFS”) at
https://efile.dol.gov/. If you use the current website
link, dol-appeals.entellitrak.com, you will be directed
to the new system. Information regarding registration
for access to the new EFS, as well as user guides,
video tutorials, and answers to FAQs are found at
https://efile.dol.gov/support/. Registration with EFS is
a two-step process. First, all users, including those
who are registered users of the current EFSR system,
will need to create an account at login.gov (if they do
App. 92
not have one already). Second, users who have not
previously registered with the EFSR system will then
have to create a profile with EFS using their login.gov
username and password. Existing EFSR system users
will not have to create a new EFS profile. All users can
learn how to file an appeal to the Board using EFS by
consulting
the
written
guide
at
https://efile.dol.gov/system/files/2020-11/file-newappeal-brb.pdf
and
the
video
tutorial
at
https://efile.dol.gov/support/boards/new-appeal-brb.
BE SURE TO REGISTER IN ADVANCE! Again,
you may preregister for EFS from November 9, 2020,
until 5:00 pm EST on December 3, 2020. stablishing
an EFS account under the new system should take
less than an hour, but you will need additional time to
review the user guides and training materials. If you
experience difficulty establishing your account, you
can find contact information for login.gov and EFS at
https://efile.dol.gov/contact.
If you file your appeal online, no paper copies need be
filed. You are still responsible for serving the
notice of appeal on the other parties to the case.
Filing Your Appeal by Mail
You may, in the alternative, including the period
when EFSR and EFS are not available, file your
appeal using regular mail to this address:
U.S. Department of Labor
Administrative Review Board
App. 93
ATTN: Office of the Clerk of the Appellate
Boards (OCAB)
200 Constitution Ave. NW
Washington, DC 20210–0001
Access to EFS for Non-Appealing Parties
If you are a party other than the party that is
appealing, you may request access to the appeal by
obtaining a login.gov account and creating an EFS
profile. Written directions and a video tutorial on how
to request access to an appeal are located at:
https://efile.dol.gov/support/boards/request-accessan-appeal
After An Appeal Is Filed
After an appeal is filed, all inquiries and
correspondence should be directed to the Board.
Service by the Board
Registered users of EFS will be e-served with Boardissued documents via EFS; they will not be served by
regular mail. If you file your appeal by regular mail,
you will be served with Board-issued documents by
regular mail; however, on or after December 7, 2020,
at 8:30 a.m., you may opt into e-service by
establishing an EFS account, even if you initially filed
your appeal by regular mail.
SERVICE SHEET
App. 94
Case Name:
KOSSEN_DARREN_v_ASIA_PACIFIC_AIRLINE
_
Case Number: 2019AIR00011
Document Title: DECISION AND ORDER
DENYING COMPLAINT
I hereby certify that a copy of the above-referenced
document was sent to the following this 9th day of
November, 2020:
DEPARTMENT OF LABOR UNITED STATES OF
AMERICA
Digitally signed by MARYANNE B. BALLARD
DN: CN- MARYANNE B. BALLARD, OU=LEGAL
ASSISTANT, O=US DOL Office of Administrative
Law Judges, L=San Francisco, S=CA, C=US
Location; San Francisco CA
MARYANNE B. BALLARD
LEGAL ASSISTANT
William C Budigan, Esq.
info@budiganlaw.com
App. 95
Budigan Law Firm 2601 42nd Avenue West
SEATTLE WA 98199
{Electronic - Regular Email}
OSHA-REG09-WB@dol.gov
Regional Administrator
Region 9
U. S. Department of Labor, OSHA
Suite 2-650
90 7th StreeT
SAN FRANCISCO CA 94103-1516
{Electronic - Regular Email}
Steven Pixley, Esq.
Steven Pixley, Esq. sppixley@aol.com
Tan Holdings Corporation
TSL Plaza, 3rd Floor Beach Road P.O. Box 501280
GARAPAN
SAIPAN 96950
{Electronic - Regular Email}
OSHA, Whistlebl[ower] Director
Director
Directorate of Whistleblower Protection Programs
U S Department of Labor, OSHA
Room N 4618 FPB
200 CONSTITUTION AVE NW
WASHINGTON DC 20210
{Electronic - Regular Email}
Regional Solicitor
App. 96
U. S. Department of Labor
Suite 3-700
90 Seventh Street
SAN FRANCISCO CA 94103-1516
{Electronic - Regular Email}
Associate Solicitor Fair Labor Standards
Associate Solicitor
Division of Fair Labor Standards
U. S. Department of Labor
Room N-2716, FPB
200 Constitution Ave., N.W.
WASHINGTON DC 20210
{Electronic - Regular Email}
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.