U.S. Department of Labor Adjudicatory Boards 200 Constitution Avenue, N.W. Washington, D.C.  20210-0001 USDOL/OALJ REPORTER PAGE 1 In the Matter of: RONALD ROOKS,     ARB CASE NO. 04-092 COMPLAINANT,     ALJ CASE NO.  03-AIR-35 v. DATE:  June 29, 2006 PLANET AIRWAYS, INC., RESPONDENT. BEFORE: THE ADMINISTRATIVE REVIEW BOARD Appearances: For the Complainant: Martin E. Leach, Esq., Feiler, Leach & McCarron, P.L., Coral Gables, Florida For the Respondent: Michael Moulis, Esq., Moulis & Associates, P.A., Fort Lauderdale, Florida FINAL DECISION AND ORDER             Ronald  Rooks  filed  a  complaint  alleging  that  his  former  employer,  Planet
Airways,   Inc.,   retaliated   against   him   in  violation   of   the   whistleblower   protection
provisions  of  the  Wendell  H.  Ford  Aviation  Investment  and  Reform  Act  for  the  21st
Century  (AIR  21),  49  U.S.C.A.  §  42121  (West  Supp.  2005)  and  its  implementing regulations,  29  C.F.R.  Part  1979  (2005).    A  Department  of  Labor  Administrative  Law Judge (ALJ) concluded in a Recommended Decision and Order (R. D. & O.) that Planet
violated AIR 21 when it fired Rooks, and awarded Rooks back pay and compensatory
damages.  The ALJ subsequently awarded costs and attorney’s fees.  For the following
reasons, we affirm the ALJ’s decisions.   

USDOL/OALJ REPORTER PAGE 2 BACKGROUND              The  record  supports  the  ALJ’s  findings  of  fact,  R.  D.  &  O.  at  3-17,  which  we
summarize  briefly.    Planet  Airways  was  a  charter  air  service  operating  out  of  Fort
Lauderdale,   Florida,   with   its   corporate   office   in   Orlando.      Planet   hired   Rooks,   a
commercial pilot for more than 12 years, as a captain in January 2002.  Planet’s Exhibit
(PX) 13. The  events  leading  up  to  Rooks’s  firing began  after  he  and  his  crew  flew  to Denver, Colorado.  About 11:00 p.m. on August 27, 2002, one of the  flight attendants
went to the emergency room of a hospital and was later admitted.  Hearing Transcript
(TR) at 269.  The other four attendants, including senior flight attendant Sabine Fulks,
stayed up most of the night with their ailing colleague.  TR at 113-14.              The next day, August 28, one flight attendant stayed behind with the hospitalized
employee and the other three flew with Rooks, the first officer, and the flight engineer to
Memphis,  Tennessee,  and  then  onto  Orlando,  Florida,  arriving  about  8:00  p.m.    TR  at
117-20.  They were scheduled to leave Orlando at 8:30 a.m. on August 29, 2002, fly to
Nassau to pick up repatriated Haitians, take them to Port-au-Prince, and then return to
Miami.  Rooks’s Exhibit (RX) 5.  About 7:00 a.m., Rooks learned that the departure had
been delayed until 11:00 a.m. because the client’s check for the charter to Port-au-Prince
had not cleared.  TR at 270-73. Later that morning, the Planet dispatcher informed Rooks that the check had still not cleared and departure was again delayed until 2:00 p.m.  TR at 275.  Rooks and the
crew arrived at the airport after lunch, but the flight remained on hold.  TR at 276-77.  
The Planet dispatcher told Rooks at about 5:00 p.m. that the flight could go, but by that
time the six-hour deadline on the paperwork necessary to release the flight had expired.  
TR at 48-54, 277-80; PX 14.              At 5:45 p.m., the dispatcher related to Rooks that he should go to Delta Airlines to
pick up the paperwork.  Rooks explained that he had no way of getting to Delta and asked
that the papers be faxed to him at the charter facility.  TR at 56-57, 280, 283-84; PX 10,
RX 6-7, 12.    Later, Rooks informed the chief pilot, James Phinney, that some crew members were starting to show signs of fatigue and making negative remarks about being up all
day and flying all night.  TR at 290-91.  Phinney emphasized the importance of the flight
and suggested that the crew fly to Port-au-Prince, which was the revenue leg, and spend
the night there.  TR at 91-93, 537.  Phinney told Rooks to discuss the situation with the
crew and report back.  RX 16.              Rooks called the crew together.  Supervisor Fulks testified that she told Rooks at
the meeting that she was fatigued and did  not think she could make the 10-to-12 hour
trip, that it would not be safe to make the flight.  TR at 122, 145.  Fulks added that Rooks
tried to convince the crew to fly, but two other flight attendants were also fatigued.  TR at

USDOL/OALJ REPORTER PAGE 3 123-24, 153.  Fulks stated that the flight attendants agreed it would be best to overnight in
Orlando or Nassau and do the flight to Port-au-Prince the next day.  TR at 142, 147, 152-
53, 202, 232.  On cross-examination, Fulks termed “a lie” Phinney’s testimony that the
crew did not report being fatigued but simply followed Rooks’s instructions and canceled
the flight.  TR at 153, PX 16.             Flight attendant Marc Stetler described the medical emergency that occurred on
August 27, TR at 166, the flight to Memphis and then Orlando, and the repeated delays in
departure for Nassau.  TR at 170-74, 196-97; PX 9-10, RX 9-10.  Stetler told Rooks at
the meeting that he was “too tired” to complete the trip.  TR at 175-76, 190.  He testified
that the flight attendants were fatigued, “all way too tired,” and had been on duty for at
least 10 hours.  TR at 181.  Stetler added that he stated to Rooks he was “too fatigued to
fly according to FAA regulations,” but was okay with a ferry flight to Nassau because he
could ride as a passenger.  TR at 199-200. Jose Yannes, who accompanied Stetler to the hospital on August 27, testified that before Rooks talked about the number of hours the crew had been on duty, he told Rooks
he  was  “tired,  exhausted”  from  the  “long  day”  and  personally  noticed  that  the  other
attendants were, too.  TR at 218-22.  Yannes added that he was even too fatigued to fly to
Nassau and would rather stay overnight in Orlando, but could have done the ferry flight.  
TR at 222-28.  While long delays in the charter business were not unusual, according to
Yannes, the question was whether the crew could “keep flying all night after being up all
day here waiting.”  TR at 236-38; PX 30.             First Officer Matt Gorshe, who joined the flight at Denver, testified that Rooks
asked the crew at the meeting about their readiness to complete the trip.  TR at 57.  The
consensus  was  that  the  flight  attendants  were  too  fatigued  to  fly,  Gorshe  stated,  but  
Rooks had been told by Phinney that it was in “everyone’s best interests” to do the flight
and that there would be “repercussions” if the flight was canceled.  TR at 63, 77, 294,
325-26.        After his discussion with the crew, Rooks called Phinney at 6:45 p.m. and said that he still did not have the required paperwork and that some of the crew members were
too fatigued to fly.  TR at 316.  Rooks suggested that the crew go as far as Nassau or stay
in Orlando and do the trip to Port-au-Prince the next day, but Phinney said that the client
insisted on the trip occurring that day.  TR at 304, 324-25, 569.                Phinney testified that he told Rooks to end the flight in Port-au-Prince and stay
overnight, but that Rooks refused to make the crew stay there.  TR at 492-94, 536.  Rooks
testified  that  he  joked  with  Phinney  about  Port-au-Prince  being  a  dangerous  place,  but
that he reassured crew members that it was safe enough.  TR at 292-96.  Gorshe testified
that he did not want to spend the night in a hotel in Port-au-Prince, but would have gone
there and stayed overnight in the airplane.  TR at 91-92, 98-99.  Fulks testified that the
flight attendants had a short discussion about Haiti being unsafe, but that was after they
told Rooks they were too fatigued to complete the trip.  TR at 146, 178.

USDOL/OALJ REPORTER PAGE 4             At 7:00 p.m., Planet’s Chief ExecutiveOfficer, Peter Garranbone, called Rooks to
tell him that Planet did not want the crew to fly “tired” and asked if they could ferry the
plane back to Fort Lauderdale.  TR at 324.  The plane finally left Orlando at 8:18 p.m.
and was diverted to Miami.  TR at 71; RX 14. Rooks and the crew were told to report to Phinney on August 30, 2002.  TR at 327.  Rooks and his first officer were suspended with pay until September 3, 2002.  RX
16.  At a meeting on September 5, Phinney fired Rooks after he stated that his actions on
August 29 were appropriate and that he would do the same thing again.  TR at 330-32;
PX 4, 9, 17; RX 15.               Subsequently, Rooks filed a complaint with the Occupational Safety and Health
Administration   (OSHA),   alleging   that   Planet   had   terminated   his   employment   in
retaliation  for  raising  safety  concerns.    OSHA  dismissed  the  complaint,  RX  19,  and
Rooks requested an administrative hearing, which was held on October 21-22, 2003.   ISSUES PRESENTED The  issues  before  the  ARB  are:  (1)  whether  the  ALJ  correctly  concluded  that Planet  violated  AIR  21  and  (2)  whether  the  ALJ’s  rulings  on  remedies,  which  are
unchallenged on appeal, should be affirmed. JURISDICTION AND STANDARD OF REVIEW             The ARB has jurisdiction to review the ALJ’s recommended decision under AIR
21 § 42121(b)(3) and 29 C.F.R. § 1979.110.  See Secretary’s Order 1-2002, 67 Fed. Reg.
64,272 (Oct. 17, 2002) (delegating to ARB the Secretary’s authority to issue final orders
under, inter alia, AIR 21 § 42121). We  review  the  ALJ’s  factual  determinations  under  the  substantial  evidence standard.  29 C.F.R. § 1979.110(b).  See 68 Fed. Reg. 14,106 (Mar. 21, 2003) (the ARB
“shall  accept  as  conclusive  ALJ  findings  of  fact  that  are  supported  by  substantial
evidence”).  Substantial evidence is defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”  Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).             We review conclusions of law de novo.  Mehan v. Delta Air Lines, ARB No. 03-
070, ALJ No. 03-AIR-4, slip op. at 2 (ARB Feb. 24, 2005); Negron v. Vieques Air Links, Inc., ARB No. 04-021, ALJ No. 03-AIR-10, slip op. at 4 (ARB Dec. 30, 2004).

USDOL/OALJ REPORTER PAGE 5 DISCUSSION Elements of an AIR 21 whistleblower complaint              AIR 21 extends whistleblower protection to employees in the air carrier industry
who  engage  in  certain  activities  that  are  related  to  air  commerce  safety.    The  statute
prohibits air carriers, contractors, and their subcontractors from discharging or “otherwise
discriminat[ing]  against  any  employee  with  respect  to  the  employee’s  compensation,
terms,  conditions,  or  privileges  of  employment  because  the  employee  (or  any  person
acting pursuant to a request of the employee)” engaged in the air carrier safety-related activities  the  statute  covers.    49  U.S.C.A.  §  42121(a).    Under  AIR  21,  an  employee  is protected 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 [subtitle VII of title 49 of  the  United  States  Code]  or  any  other  law  of  the  United States…. 49 U.S.C.A. § 42121(a); 29 C.F.R. § 1979.102(b)(1).    The  AIR  21  complainant  must  allege  and  later  prove  that  he  was  an  employee who  engaged  in  activity  the  statute  protects;  that  an  employer  subject  to  the  act  had
knowledge of the protected activity; that the employer subjected him to an “unfavorable
personnel  action;”  and  that  the  protected  activity  was  a  “contributing  factor”  in  the
unfavorable  personnel  action.    49  U.S.C.A.  §  42121(a),  (b)(2)(B)(iii);  29  C.F.R.  §
1979.104(b)(1)(i)-(iv).  If the complainant proves by a preponderance of the evidence that
the  respondent  has  violated  AIR  21,  the  complainant  is  entitled  to  relief  unless  the
respondent demonstrates by clear and convincing evidence that it would have taken the
same  unfavorable  action  in  the  absence  of  the  protected  activity.    49  U.S.C.A.  §
42121(b)(2)(B)(iv);  29  C.F.R.  §  1979.104(d).    See,  e.g.,  Negron,  slip  op.  at  6;  Peck  v. Safe  Air  Int’l,  Inc.,  ARB  No.  02-028,  ALJ  No.  01-AIR-3,  slip  op.  at  9  (ARB  Jan.  30, 2004). The federal aviation regulations (FARs) governing air safety confer on the pilot in command “final authority and responsibility for the operation and safety of the flight.”   14  C.F.R.  §  1.1  (2006).    That  responsibility  is  spelled  out  in  §  121.553,  which  covers supplemental operations such as Planet’s and requires a pilot in command to restrict and
suspend  operations  when  he  becomes  aware  of  conditions  that  are  a  hazard  to  safe

USDOL/OALJ REPORTER PAGE 6 operations.    14  C.F.R.  §  121.553.    Further,  the  regulation  governing  flight  attendants
provides  detailed  duty  period  limitations,  rest  requirements,  and  number  of  attendants
assigned.  14 C.F.R. § 121.467.  Finally, § 121.597 provides flight release authority for
supplemental operations; it states in pertinent part that the pilot in command may sign the
flight release only when he believes that the flight may be made with safety and that a
new flight release is necessary if the plane has been on the ground more than six hours.  
14 C.F.R. § 121.597(b)(c).                ARB  case  law  under  analogous  whistleblower  statutes  governing  transportation
and the environment holds that protection for activities that further the purposes of the
statutes depends on whether the complainant reasonably believed that the employer was
violating  or  would  violate  the  pertinent  act  and  its  implementing  regulations.    See Melendez  v.  Exxon  Chems.  Americas,  ARB  No.  96-051,  ALJ  No.  93-ERA-006  (ARB July 14, 2000), and cases cited therein.  Thus, a complainant need not prove an actual
violation, but need only establish a reasonable belief that his or her safety concern was
valid.  Kesterson v. Y-12 Nuclear Weapons Plant, ARB No. 96-173, ALJ No. 95-CAA-
12, slip op. at 4-5 (ARB Apr. 8, 1997).  Therefore, protected activity has two elements:  
(1) the complaint itself must involve a purported violation of a regulation relating to air
safety, and (2) the complainant’s belief must be objectively reasonable.  Id.    The ALJ’s opinion on the merits In discussing protected activity, the ALJ found Rooks to be a credible witness and accorded great weight to his concerns about crew fatigue, which the testimony of three
crew  members  corroborated.    R.  D.  &  O.  at  18.    Although  he  discerned  no  actual
violation of an air safety regulation, the ALJ determined that Rooks reasonably believed
that flying to Port-au-Prince with a fatigued crew would be a violation.  Therefore, the
ALJ found that Rooks engaged in protected activity when he voiced his concerns about
crew fatigue to Phinney as the reason for his refusal to make the complete flight.  R. D. &
O. at 18-19.             Planet  was  aware  of  Rooks  protected  activity,  according  to  the  ALJ,  because
Phinney’s  testimony  corroborated  that  of  Rooks,  who  explained  to  him  that  crew
members were showing signs of, and complaining about, fatigue.  The ALJ found that,
whether  Phinney  agreed  with  Rooks’s  assessment  of  the  crew’s  condition,  Phinney  at
least understood that Rooks was claiming crew fatigue as a reason for refusing the flight
to  Port-au-Prince.    Therefore,  the  ALJ  concluded  that  Rooks  established  Planet’s
knowledge of his protected activity.  R. D. & O. at 19. Planet did not dispute that Rooks’s firing was an adverse employment action.  The ALJ  noted  that  Phinney  requested  immediate  termination  at  the  September  5,  2002
meeting after Rooks stated that he believed his decision to refuse the flight to Port-au-
Prince on August 29 was correct under the circumstances.  The ALJ determined that the
timing of Rooks’ firing shortly after he refusedthe flight raised an inference that Rooks’s
protected activity was a contributing factor in his discharge.  R. D. & O. at 20.

USDOL/OALJ REPORTER PAGE 7              The ALJ considered Planet’s “alternate theory,” i.e., that Rooks manipulated the
crew members into claiming fatigue so he would have a legitimate pretext for refusing
the flight.  According to the theory, Rooks was suffering from personal distress related to
a  family  situation  and  his  wife’s  appearance  at  the  hotel  the  night  before.    The  ALJ
decided  that  Planet  had  offered  “little  to  no  evidence  to  support”  this  theory.    He
determined  that  the  testimony  of  the  crew  members  corroborated  Rooks’s  version  of
events on August 29, including that Port-au-Prince was dangerous came up only after the
flight attendants reported their fatigue.  Thus, the ALJ concluded that Rooks refused the
flight due to crew fatigue and not because of some unrelated personal situation.  R. D. &
O. at 21. Further,  the  ALJ  stated  that,  if  Rooks  had  not  commented  at  the  September  5, 2002 meeting that he would have made the same decision, Phinney would not have fired
him.  The ALJ ruled that Rooks proved that his protected activity in refusing the flight
was a contributing factor in his firing.  R. D. & O. at 21.  Therefore, the ALJ concluded
that Planet had violated the AIR 21’s whistleblower protection provision. The  ALJ  then  turned  to  Planet’s  affirmative  defense,  that  it  would  have  fired Rooks absent any protected activity, because he was both an incompetent airman and an
insubordinate  employee.    Planet  cited  the  following  incidents  in  support:    (1)  Rooks
failed two check rides before being hired in January 2002; (2) passengers on a February
2002 flight complained about improper stowage of luggage and rude flight attendants, PX
6; (3) Planet issued a written warning to Rooks after he insisted on a hotel change during
an  August 10, 2002 flight sequence to South America, CX 7-8; and (4) Rooks repeatedly
threatened to rent a van and drive the crew back to Fort Lauderdale if he did not get the
necessary paperwork on August 29.  R. D. & O. at 21-22. The  ALJ  found  that  Planet  could  not  have  been  too  concerned  about  the  failed check rides since it hired Rooks after he passed a subsequent check.  The ALJ noted that,
while Rooks’s “tactics for getting things done”were perhaps not the most effective, he
took the FAA regulations seriously.  R. D. & O. at 22.  In addition, Rooks explained that
(1) the February flight involved a two-hour delay, which irritated some passengers, PX 5;
(2) the written warning stated only that his behavior was inappropriate, PX 7-8; and (3)
the threat to rent a van was intended only to expedite the paperwork required to release
the flight, PX 10; TR at 287-89, 436-37.  The ALJ determined that Planet had failed to
produce   clear   and   convincing   evidence   that   the   incidents   Planet   cited   would   by
themselves have resulted in the termination of Rooks’s employment had he not engaged
in protected activity on August 29.  R. D. & O. at 22.    Concurrence in the ALJ’s analysis and rejection of Planet’s arguments              We  agree  with  the  ALJ  in  concluding  that  Rooks  engaged  in  protected  activity
when  he  refused  to  complete  the  Port-au-Prince  trip  as  scheduled.    Rooks’s  belief  that flying  to  Port-au-Prince  with  a  fatigued  crew  would  violate  a  FAR  was  reasonable.  
However,  Planet  argues  that  the  ALJ  disregarded  substantial  evidence  in  making  this

USDOL/OALJ REPORTER PAGE 8 determination and failed to consider whether any violation of the FARs actually occurred.  
Respondent’s Initial Brief at 7-10. Rooks  testified  that  he  believed  that  flying  with  a  fatigued  crew  was  a  hazard covered  by  FAR  section  121.553.    14  C.F.R.  §  121.553;  TR  at  422-24.    The  evidence supports the ALJ’s finding that Rooks and the crew members who testified were credible
witnesses.      The   crew   members’   testimony   consistently   supported   that   of   Rooks
concerning   the   events   of   August   29.      Rooks’s   belief   was   reasonable   under   the
circumstances.  Three flight attendants had been up all night on August 27 tending to a
sick  colleague,  they  had  flown  all  day  on August  28,  and  then  they  waited  around  for
almost 12 hours on August 29 because of delays caused by Planet.  Accordingly, because
substantial evidence supports the ALJ’s credibility determinations and his findings of fact
regarding Rooks’s protected activity, we affirm them.  Rooks did not have to prove that
flying  with  fatigued  crew  members  actually  violated  the  FARs,  so  as  long  as  Rooks’s
belief was reasonable.  See R. D. & O. at 18-19.  Therefore, we reject Planet’s argument.               Planet also argues that it was not aware of Rooks’s protected activity because he
warned  Phinney  only  of  potential  crew  fatigue,  and  the  FARs  do  not  protect  such
anticipatory fatigue.  Alternatively, Planet contends that if Rooks actually did warn Planet
of present crew fatigue, then he deliberately violated AIR 21 himself when he flew back
to Miami with a fatigued crew.  See 49 U.S.C.A. § 42121(d).¹  Brief at 11-13.    That is not the case.  Phinney corroborated Rooks’s testimony that they discussed crew fatigue as a reason for Rooks’s refusal of the flight during their telephone calls on
the evening of August 29.  TR at 490-94; R. D. & O. at 19.  The record shows that the
flight attendants were complaining of present fatigue as well as stating that they would be too  tired  to  perform  safely  on  the  Nassau  to  Port-au-Prince  leg  of  the  planned  flight.   Even if Phinney thought the crew was only potentially fatigued, he knew at the very least
that Rooks refused to fly to Port-au-Prince because of their fatigue.  Moreover, Rooks did
not violate the statute or any safety regulation in flying the plane home to Miami, because
it  is  undisputed  that  the  attendants  were  not  needed  on  a  ferry  flight  that  had  no
passengers.  TR at 296-97, 547.  Therefore, we reject Planet’s argument, and hold that
Rooks proved by a preponderance of the evidence that his protected safety complaint was
a contributing factor in his termination.             Finally,  Planet  argues  that  the  ALJ  ignored  clear  and  convincing  evidence  that
Rooks’s  firing  was  inevitable,  regardless of  any  protected  activity,  because  he  was
“incompetent at best and insubordinate at the very least.”  Brief at 13-17.  We disagree.  
The ALJ fully considered each of Planet’s alleged non-discriminatory reasons for firing
Rooks.  While Phinney testified that he felt Rooks “manipulated the truth” to get the hotel
changed  in  Chile,  he  issued  Rooks  a  written  warning  that  merely  asked  him  to
communicate more clearly with the company.  PX 7.  The record evidence supports the                                                 1   Subsection  (d)  provides  that  whistleblower  protection  will  not  be  afforded  to  an employee  who  deliberately  causes  a  violation  of  any  requirement  relating  to  air  safety  if
acting without the direction of the employer.  49 U.S.C.A. § 42121(d).  

USDOL/OALJ REPORTER PAGE 9 ALJ’s findings that Rooks’s threat to renta van and drive the crew home was meant to
speed up Planet’s dispatch of the paperwork required to release the flight and that nothing
ever came of the February 2002 baggage complaint.  Inasmuch as substantial evidence
supports the ALJ’s factual findings, we affirm them.  We also affirm his determination
that  Planet’s  proffered  reasons  were  insufficient  to  establish  by  clear  and  convincing
evidence that Planet would have fired Rooks notwithstanding his protected activity.    Remedies             Having ruled that Planet violated AIR 21, we turn to remedies.  When an AIR 21
complainant  establishes  that  his  employer  retaliated  against  him  for  whistle-blowing
activities, the Secretary of Labor shall order the employer to “(i) take affirmative action
to abate the violation; (ii) reinstate the complainant to his or her former position together
with  the  compensation  (including  back  pay)  and  restore  the  terms,  conditions,  and
privileges  associated  with  his  or  her  employment;  and  (iii)  provide  compensatory
damages.”  49 U.S.C.A. § 42121(b)(3)(B); 29 C.F.R. § 1979.109(b).  Accordingly, as the
prevailing party, Rooks is entitled to reinstatement as well as back pay and potentially
compensatory  damages.    49  U.S.C.A.  §  42121(b)(3)(B);  Lebo  v.  Piedmont-Hawthorne,
ARB No. 04-020, ALJ No. 03-AIR 25, slip op. at 7 (ARB Aug. 30, 2005); Negron, slip op. at 8.   Although   reinstatement   is   the   statutory   remedy,   the   ARB   has   held   that circumstances   may   exist   in   which   reinstatement   is   impossible   or   impractical   and
alternative remedies are necessary.  Assistant Sec’y & Bryant v. Bearden Trucking Co.,
ARB  No.  04-014,  ALJ  No.  03-STA-36,  slip  op.  at  8  (ARB  June  30,  2005);  see Creekmore v. ABB Power Sys. Energy Servs., Inc., 93-ERA-24, slip op. at 9 (Sec’y Feb. 14,  1996)  (front  pay  in  lieu  of  reinstatement where  the  parties  have demonstrated “the
impossibility  of  a  productive  and  amicable  working  relationship”).   See  also  Doyle  v. Hydro Nuclear Servs., Inc., ARB Nos. 99-041, 99-042, 00-012, ALJ No. 89-ERA-22, slip op. at 7-8 (ARB Sept. 6, 1996), rev’d on other grounds sub nom. Doyle v. United States Sec’y of Labor, 285 F.2d 243, 251 (3d Cir. 2002) (reinstatement was impractical because the company no longer engaged workers in the job classification complainant occupied,
and  had  no  positions  for  which  he  qualified).    The  preference  of  the  prevailing
complainant is not determinative.  See Dale v. Step 1 Stairworks, Inc., ARB No. 04-003,
ALJ No. 02-STA-30, slip op. at 4 (ARB Mar. 31, 2005) (the ALJ erred in accepting at
face value a statement from the complainant that he was not seeking reinstatement).                Rooks testified that he did not want his job back, TR at 361, and the ALJ did not
order  reinstatement.    Although  under  the  applicable  law  and  the  record  before  us,
reinstatement would have been the appropriate remedy, neither party has raised the issue
on appeal.  See 29 C.F.R. § 1979.110(a) (a party’s petition for review to the ARB must
specifically identify the findings, conclusions, or orders to which exception is taken; any
exception not specifically urged ordinarily shall be deemed to have been waived).  We
deem the issue of reinstatement waived and accept the ALJ’s recommended remedy of
back pay.

USDOL/OALJ REPORTER PAGE 10              Back  pay  awards  to  successful  whistleblower  complainants  are  calculated  in
accordance  with  the  make-whole  remedial  scheme  embodied  in  Title  VII  of  the  Civil
Rights  Act,  42  U.S.C.A.  §  2000e  et  seq.  (West  2003).    Ass’t  Sec’y  &  Bryant  v. Mendenhall Acquisition Corp., ARB No. 04-014, ALJ No. 2003-STA-36, slip op. at 5.   (ARB June 30, 2005) (citation omitted).  The purpose of a back pay award is to return the
wronged employee to the position he would have been in had his employer not retaliated
against him.  Johnson v. Roadway Express, Inc., ARB No. 01-013, ALJ No. 99-STA-5,
slip op. at 13 (Dec. 30, 2002), citing Albermarle Paper Co. v. Moody, 422 U.S. 405, 418-
421   (1975).      While   there   is   no   fixed   method   for   computing   a   back   pay   award,
calculations  of  the  amount  due  must  be  reasonable  and  supported  by  the  evidence. Bryant, slip op. at 5. Here,  Rooks  sought  and  the  ALJ  awarded  back  pay  for  the  time  he  was unemployed.    The  ALJ  found  that,  while  Planet  employed  him,  Rooks  earned  about
$4,500.00 a month, plus $200.00 to $300.00 per diem benefits each time he flew.  From
the  time  of  his  discharge  until  he  obtained  new  employment  in  October  2003,  Rooks
would have earned $58,500.00, according to the ALJ.  Rooks received $275.00 per week
in   unemployment   compensation   for   44   weeks   and   earned   about   $9,600.00   as   an
electrician while unemployed.  After these offsets, the ALJ calculated that the total back
pay award should be $36,800.00.  R. D. & O. at 23. On  appeal,  neither  Rooks  nor  Planet  has  contested  the  back  pay  award  in  any respect.  Therefore, we find that both parties have waived any exception.  29 C.F.R. §
1979.110(a).  We affirm the amount of $36,800.00 as supported by substantial evidence.                 Compensatory damages are designed to compensate whistle-blowers not only for
direct pecuniary loss, but also for such harms as loss of reputation, personal humiliation,
and mental anguish, and emotional distress.  Hobby v. Georgia Power Co., ARB Nos. 98-
166, 169, ALJ No. 90-ERA-30, slip op. at 33 (ARB Feb. 9, 2001) (citations omitted).  A
key  step  in  determining  the  amount  of  compensatory  damages  is  a  comparison  with
awards  made  in  similar  cases.    Id.    To  recover  compensatory  damages  for  mental
suffering  or  emotional  anguish,  a  complainant  must  show  by  a  preponderance  of  the
evidence that the unfavorable personnel action caused the harm.  Gutierrez v. Regents of the Univ. of Cal., ARB No. 99-116, ALJ No. 98-ERA-19, slip op. at 12 (ARB Nov. 13, 2002)  (complainant  failed  to  produce  competent  evidence  that  his  high  blood  pressure
was caused by the employer’s unfavorable personnel actions).   Here, the ALJ discussed the $10,000.00 compensatory damages awarded in Crow v. Noble Roman’s, Inc., 95-CAA-8 (Sec’y Feb. 26, 1996) and determined that Rooks’s situation  was  “not  as  dire”  as  Crow’s.    The  ALJ  therefore  awarded  $5,000.00  in
compensatory damages on the bases that Rooks had to borrow about $8,000.00 after he
was fired, that he testified it was “hard to get by” even though his wife was working, and
that he could no longer afford health insurance.  R. D. & O. at 24.    Neither party objected to the ALJ’s award of compensatory damages.  Therefore, the  parties  have  waived  any  objections  and  the  issue  is  not  before  us.    29  C.F.R.  §

USDOL/OALJ REPORTER PAGE 11 1979.110(a).  We express no opinion on whether the evidence in this case is sufficient to
support the ALJ’s award of $5,000.00 in compensatory damages.    Attorney’s fees The  ALJ  issued  a  Decision  and  Order  on  Attorney  Fees  on  October  27,  2004.   Planet  did  not  object  to  the  fees  and  costs  that  Rooks’s  attorney  sought,  but  the  ALJ found the attorney’s $300.00 an hour rate to be excessive and reduced it to $225.00 an
hour.  Stating that the attorney’s applicationlisting services and costs was reasonable, the
ALJ awarded $32,655.16 for 136.3 hours of representation and $1,987.66 for expenses.                 As  the  prevailing  party  in  this  case,  Rooks  is  entitled  to  reimbursement  for
attorney’s fees and costs.  49 U.S.C.A.§ 42121(b)(3)(B); 29 C.F.R. §1979.109(b).  Planet
did  not  challenge  the  ALJ’s  October  27,  2004  decision  awarding  Rooks  a  total  of $34,642.82  in  attorney’s  fees  and  costs.    Because  Planet  did  not  request  review  of  the amount awarded, the ALJ’s decision became final.  29 C.F.R. § 1979.110(a); Negron, slip
op. at 9. CONCLUSION Substantial evidence in the record as a whole supports the ALJ’s findings of fact, and  he  correctly  applied  the  pertinent  law.    We  AFFIRM  the  ALJ’s  conclusion  that
Rooks’s  protected  activity  was  a  contributing  factor  to  Planet’s termination  of  his
employment, and that Planet therefore violated AIR 21.  We also AFFIRM the ALJ’s
award  of  damages  as  unchallenged  on  appeal.    Finally,  the  ALJ’s  October  27,  2004
supplemental decision on attorney’s fees and costs became final.             Rooks’s attorney shall have 30 days fromreceipt of this Final Decision and Order
in which to file a fully supported attorney’s fee petition for costs and services before the
ARB, with simultaneous service on opposing counsel.  Thereafter, Planet shall have 30
days from its receipt of the fee petition to file a response. SO ORDERED.              WAYNE C. BEYER Administrative Appeals Judge                M. CYNTHIA DOUGLASS Chief Administrative Appeals Judge