statement documenting this retraction, and Walker wrote the following statement (the Retraction).

R. D. & O. at 20 (quoting RX 26 (Walker's handwritten retraction statement)).

    Walker testified that he did not retract his charge, but did provide the handwritten statement because Kimball threatened to terminate his employment if he did not. Id. at 21; see T. 345-49, 862-63, 889-92. Walker further testified that he told Kimball that documents supporting his charge were in his employee locker, and that the documents were stolen from his locker about a week after he told her about them. R. D. & O. at 21.

    After the interview, Kimball told Evans that Walker had retracted his charge. Id. She sent Evans her interview questions, her handwritten notes, and Walker's handwritten statement. Id. Evans initially wanted to fire Walker for making a false charge to the hotline. Id. A charge such as this, if true, would have been serious enough to cause termination of the accused managers. See T. 2016, 2243. After discussing the matter with her manager and one of American's lawyers, Kimball suggested that Evans instead impose a Career Decision Day – a paid day off during which the employee decides whether to sign a disciplinary letter or end his employment. R. D. & O. at 23-24. Short of termination, this was American's highest level of discipline. See T. 365-66.

    After returning from Tulsa, Evans met with Walker and Kimball on August 6. R. D. & O. at 23-24; T. 3067, 3094. Evans first asked Walker if he wished to provide any further information. According to Evans, Walker "shook his head and said no." T. 3075. Evans then read aloud to Walker an Advisory explaining the reason for the Career Decision Day. R. D. & O. at 23. It included the following paragraphs:

On July 16, 2001, you filed a formal complaint accusing three (3) managers of "intimidating you into signing off on tasks that have not been completed or are not safe just so they can get the planes out."

During a Company investigation into this matter you admitted that these allegations were untrue and that you made them because you were "scared and thought I would be fired."

R. D. & O. at 23 (quoting RX 30 (Career Decision Day Advisory) at 1). The Advisory gave Walker three options: "(1) sign a letter of commitment to comply with all company rules, (2) resign with temporary company benefits in return for agreeing to not appeal, or (3) be terminated with the option to grieve." Id. at 24 (summarizing RX 30). The Letter of Commitment stated: "I acknowledge that I have a performance problem, which I fully admit I have not corrected despite prior counseling sessions." RX 31 (draft Letter of Commitment) at 2. Walker offered to sign the Letter of Commitment before Evans finished reading the other two options, but Evans told him to consider all three options during the Career Decision Day. R. D. & O. at 24.

   The next day, Walker met with Evans again. Again, Walker did not challenge the assertion in the Advisory that he had "admitted that [his] allegations were untrue." Id. at 24; T. 3083-84. Walker did object to the Letter of Commitment's statement that he had received prior counseling. R. D. & O. at 24. After Kimball removed that assertion from the letter, Walker signed it. Id.

    After the events of September 11, 2001, American decided to implement a reduction in force (RIF) of several thousand employees. Id. at 29. Bailey was told to recommend for layoff one level 5 manager and three level 4 managers. Id. Among the managers and supervisors Bailey reviewed, Walker was the only one whose file included a Letter of Commitment. Id. Accordingly, Bailey recommended that Evans select Walker for the RIF. Id.

    Walker was on sick leave when he learned on September 28 that his leave was being converted to a layoff. R. D. & O. at 30-31; see CX 46 (formal termination letter) at 1. Because Bailey checked the "do not rehire" box on the layoff form, R. D. & O. at 30, 39; see T. 3183, the layoff was a permanent termination of Walker's employment.

    Walker immediately wrote Kimball requesting reinstatement and expressing his view that he was

being laid off in retaliation for [his] complaints to the FAA, the Department of Fair Employment and Housing and the EEOC. Specifically, on September 5, 2001, I complained to the DFEH concerning harassment of me, retaliation against me for protesting racial harassment of other workers and retaliation against me for reporting and resisting violations of aircraft safety rules . . . . This claim was also filed with the EEOC [Equal Employment Opportunities Commission]. On September 27, 2001, I filed an amended claim with the EEOC making the same allegations.

RX 46 (letter to Kimball) at 1; R. D. & O. at 31. Walker did not list the hotline call as one of the "complaints" that he believed had prompted the retaliation. Kimball wrote back on October 5,

denying a retaliatory motive in Walker's termination and stating that "[a]lthough you claim in your letter that your layoff was in retaliation for complaints you had made to the FAA, EEOC and DFEH, [American] was unaware of any such complaints at the time of your layoff." RX 47 (Kimball's Oct. 5 response) at 1; R. D. & O. at 31.

    As permitted by AIR 21's implementing regulations, 29 C.F.R. Part 1979 (2006), Walker then filed a complaint with DOL's Occupational Safety and Health Administration (OSHA). R. D. & O. at 31 (citing RX 49 (OSHA complaint)). After an investigation, OSHA concluded that Walker had "failed to establish a causal relationship between his protected activities and termination" because "[t]he Complainant failed to provide sufficient countervailing evidence to demonstrate that the Respondent's defense was pretextual and implicit of a retaliatory intent." Jan. 15, 2003 letter from Christopher Lee, Deputy Regional Administrator at 1, 2.

    Walker timely requested a hearing before an ALJ. The ALJ held thirteen days of hearing in October and December 2003. Before the ALJ issued his decision, American terminated the employment of Evans and Bailey in March 2004 for (allegedly) embezzling company property. R. D. & O. at 37; see Letter from ALJ to Walker, dated Jan. 7, 2005, at 1; ALJX 3, 4 (formal letters of termination given to Evans and Bailey). The ALJ admitted certain evidence pertaining to the embezzlement, but did not admit all the evidence that Walker submitted. On November 16, 2004 the ALJ recommended dismissal. R. D. & O. at 39.

    Walker timely appealed. We have jurisdiction under 49 U.S.C.A. § 42121(b)(3) (granting Secretary of Labor authority to issue final decisions in AIR 21 cases). See Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating, to Board, Secretary's authority to review ALJ decisions and issue final decisions in AIR 21 cases); 29 C.F.R. § 1979.110 (allowing appeals to Board in AIR 21 cases). As provided by applicable regulations, we must uphold the ALJ's factual findings if they are supported by substantial evidence. See 29 C.F.R. § 1979.110(b) ("The Board will review the factual determinations of the [ALJ] under the substantial evidence standard."); 68 Fed. Reg. 14,106 (Mar. 21, 2003) (the ARB "shall accept as conclusive ALJ findings of fact that are supported by substantial evidence"); Rougas v. Se. Airlines, Inc., ARB No. 04-139, ALJ No. 2004-AIR-3, slip op. at 9 (ARB July 31, 2006) (discussing AIR 21 regulation requiring that ALJ factual findings be reviewed under substantial evidence standard). We review the ALJ's conclusions of law de novo. See 5 U.S.C.A. § 557(b) (West 1996) ("On appeal from or review of the initial decision, the agency [here, the Board] has all the powers which it would have in making the initial decision . . . .").

    In order to receive relief under AIR 21, a complainant must prove that he was a covered employee, that he engaged in activity protected under AIR 21, and that a protected activity contributed to a covered employer's decision to subject him to an unfavorable personnel action. See 49 U.S.C.A. § 42121(a), (b); Peck v. Safe Air Int'l, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3, slip op. at 6-10 (ARB Jan. 30, 2004) (explaining "scope of coverage, procedures, and burdens of proof under AIR 21"). Coverage is not disputed. Therefore, we proceed to examine the other elements.

1. Adverse Action

    The ALJ appears to have assumed without discussion that both the termination of Walker's employment and the imposition of the Career Decision Day were unfavorable personnel actions (adverse actions). See R. D. & O. at 38 (referring to "either of the adverse actions"). Because neither party contests this aspect of the ALJ's decision, and because of our disposition of the case, for discussion purposes we make the same assumption.

2. Protected Activity and Knowledge Thereof

   Walker argued to the ALJ that he had engaged in protected activity before and after his July hotline call. We briefly discuss these other activities before turning to the hotline call in the next section.

Pre-July 16 protected activity

Knowledge of protected activity

    The ALJ found that Evans and Bailey knew about Walker's July 16, 2001 hotline call, but also concluded that the hotline call was not protected activity. We discuss in the next section Walker's challenge to this conclusion.

    With respect to the activities that the ALJ assumed were protected, the ALJ noted that there was "some evidence that both Bailey and Evans had, at least some knowledge of some of the Complainant's protected activities." Id. at 38. While the ALJ did not make a clear finding as to whether Evans and Bailey in fact knew of Walker's pre-July 16, 2001 activities, the ALJ appears to have assumed such knowledge in his subsequent discussions. Because of our disposition of the case, we make the same assumption.

    As for Walker's post-July 16, 2001 activities, the ALJ found that Walker did not show that Evans and Bailey were aware of any of this activity. Id. at 37-38. Walker does not contest this finding.

3. Hotline Call

    Regarding Walker's July 16, 2001 hotline call, the ALJ noted that "[a]lthough the Complainant's statement to the hotline operator about being pressured to sign off unsafe aircraft can arguably be interpreted in different ways, during the trial the Complainant admitted that it was his intention to allege that Bailey, Rogers and Nasdeo were pressuring him to sign off items that they knew were unsafe." Id. at 36 n.12. The ALJ found that "the Complainant did not have a good faith and reasonable basis for making [this] . . . allegation," and concluded that the allegation in the hotline call was not protected activity. Id. at 36.

    The primary basis for the ALJ's finding was his decision to credit Kimball's testimony that Walker made "a truthful, non-coerced admission to Kimball that he made a knowingly false hotline complaint," R. D. & O. at 39, rather than Walker's testimony that he had not. The ALJ also relied upon Walker's Retraction. Walker challenges both decisions.

The ALJ's credibility determinations

    Walker argues that the ALJ should have believed him rather than Kimball, and therefore should not have found that Walker knew his hotline allegation was false. Brief at 24-26. Walker begins by noting that the ALJ's credibility determination was not demeanor-based, and arguing that we should therefore review the determination de novo. Petition at 14-15; Reply at 1. Walker contends that if we did, we would believe him rather than Kimball. Brief at 26 ("An objective fact finder would likely find that Walker did not confess to making a false hotline complaint, and that finding would lead to a completely different conclusion."). American, of

(1) Kimball's interview notes

    Walker argues that the ALJ should not have given weight to Kimball's handwritten interview notes because there was no "electronic recording . . . express written and signed confession, or . . . objective third party witness," and thus the ALJ had "nothing but her word that the confession was made." Brief at 27-28. But Walker did not object to American's introduction of the notes as evidence, and he backed down under cross-examination from his initial testimony that Kimball did not take the notes during the interview. T. 341, 864. Therefore, we conclude that the ALJ did not err in giving these contemporaneous interview notes some corroborative weight. Our conclusion is more certain because, as the ALJ pointed out, the notes "were submitted to Evans well before [Kimball] had any reason to believe that [Walker] would deny her version of the interview." R. D. & O. at 36. As we discuss in the next section, this sequence of events makes the notes more likely to be accurate.

(2) Likelihood that Kimball would have been deterred from submitting a false report by Walker's opportunities to challenge it

    In his reply, Walker argues that the ALJ engaged in "pure non sequitur" by reasoning that Kimball "would have been deterred from making a false accusation because she knew that Walker would have two opportunities to deny [it]." Reply at 3, 2 (apparently referring to R. D. & O. at 36). According to Walker, the ALJ reasoned that because "‘A' makes an accusation against ‘B' before ‘A' knows whether ‘B' will contest the accusation, it follows that the accusation is true." Id. at 3. As Walker explains, "[a]pplying this reasoning, false accusations would never be made . . . because the object of the false accusation could later deny it. Applying that same reasoning to this case, Walker did not make a false hotline complaint against the three accused managers, because each one of them could later deny the accusations." Id. at 2.

    Even if Walker's argument is not raised too late, it fails to persuade. Walker misunderstands the ALJ's logic. The ALJ did not reason that the possibility of discovery prevents a lie. Rather, the ALJ reasoned that awareness of the possibility of discovery (and the adverse consequences that come from being caught in a lie) makes a person less likely to lie – particularly when the person has time to think about it. This reasoning is logical. The ALJ had to determine who had lied: Kimball or Walker. The ALJ's reasoning does not prove that Kimball did not lie; but it does show that a lie by her was less likely than a lie by Walker. By noting that Kimball knew Walker would have two opportunities to challenge Kimball's report, the ALJ was acknowledging that Kimball knew she risked discovery if she lied. By so acknowledging, the ALJ was suggesting that in the circumstances Kimball probably would not have taken this risk. In contrast, Walker made his hotline call under stress; the allegation against Rogers and the others may have been intended only to convince the hotline operator of the seriousness of the NBO matter. Walker may not have known about the procedures that would follow, and may not have anticipated that the allegation would result in a Career Decision Day letter that would lead to the termination of his employment. Thus, when he made his allegation Walker may not have been aware of, or focused upon, the risk.

(3) Walker's lack of credibility

    The ALJ determined that "although Kimball was not an entirely credible witness, [Walker's] trial testimony, including his allegation that Kimball was physically menacing . . . was even less credible." R. D. & O. at 36. Walker, apparently in an attempt to undercut this rationale, argues that the ALJ's determination not to credit his testimony "appears to be retaliation by the ALJ for allegations made by Walker" concerning Kimball's threats and physical menace. Reply at 3.

R. D. & O. at 35.

    Third, Walker argues that the ALJ "radically changed" his interpretation of the Retraction: the ALJ denied summary decision because he thought the Retraction was ambiguous, yet later decided that the Retraction was indeed a retraction. See Reply at 7-8. According to Walker, these "conflicting analyses by the ALJ impeach his [the ALJ's] credibility." Id. at 8. This argument is waived because it was raised too late. In any case, the ALJ's original belief that the Retraction was ambiguous was formed prior to the hearing, when the ALJ also was not sure why Walker had made the hotline call. At the hearing, Walker testified that in his hotline call he had intended to accuse the managers of instructing him to release unsafe planes. See R. D. & O. at 36 n.12. This testimony explains the change in the ALJ's view. Once Walker's intent in making the hotline call was clarified and the Retraction's inconsistency with that call became evident, then the Retraction was more definitely a retraction. Therefore, we conclude that substantial evidence supports the ALJ's finding that the Retraction was indeed a retraction.

    Having reviewed the entire record, we conclude that this finding, and the ALJ's finding that Walker confessed, together provide substantial evidence for the ALJ's finding that Walker's hotline allegation was not in good faith.

Whether the hotline call was protected activity

    Walker next suggests that despite the finding that the hotline call was not in good faith, the ALJ erred in concluding that the hotline call was not protected activity. In Walker's view, the hotline call was protected because it "contains one statement that expressly concerns safety, namely that three managers ‘have been intimidating him into signing off on tasks that have not been completed or are not safe just so they can get the plane out.'" Brief at 14, see also Reply at 4-6 (arguing that two sentences, rather than one, relate to intimidation). But even if one statement in the hotline call "expressly concerns" safety – a matter on which we express no view – that one statement is the same statement that was not in good faith. The provision of "information" is protected activity only when the complainant actually "believe[s]" in the existence of a violation. Peck, slip op. at 13. Here, the finding that Walker did not make his hotline call in good faith is a finding that Walker did not actually believe the charge he made in that call. Therefore, regardless whether it otherwise provides sufficient information about safety to qualify as a protected activity, Walker's hotline call cannot qualify as protected activity. Therefore, the ALJ did not err in concluding that the false charge in the hotline call was not protected under AIR 21.

    Our conclusion that the falsehood was not protected makes irrelevant Walker's argument that the ALJ erred in finding that the rest of the hotline call related to the NBO incident rather than to safety, and thus erred in concluding that the NBO portion of the call was not protected. Regardless whether the NBO discussion related to safety, the ALJ also found that "the adverse actions were solely motivated by the fact that the Complainant had admittedly made a false hotline complaint." R. D. & O. at 38. As we discuss below, there is substantial evidence for this finding so it is conclusive.

4. Causation

   Portions of Walker's pleadings appear to take issue with the ALJ's finding, see R. D. & O. at 38, that Walker failed to prove that protected activities were a contributing factor in the adverse actions taken against him. But Walker did not take exception to the ALJ's finding that American terminated Walker's employment "solely" because he "had admittedly made a false hotline complaint."

management knew about the safety complaint, (d) management conducted a shallow, biased investigation of the safety complaint (e) management took adverse action against Complainant with knowledge of the safety complaint. Still, Complainant is not to be believed and Complainant loses.

Petition at 12 (error 12). Because this error attacks as "flawed" the determination that Walker was "not to be believed," a generous reading might construe it as an attack on the ALJ's credibility determination with regard to Walker. Even a generous reading, however, could not discover an attack on the ALJ's finding that Walker did not prove causation. Indeed, this error conspicuously omits causation from its list of "everything" that Walker needed to prove.

    The second error, in its entirety, states as follows:

The ALJ erred in concluding that Complainant failed to show by a preponderance of the evidence that his bona fide protected activities were a contributing factor in the adverse actions taken against him.

Petition at 16-17 (error 32). This error takes exception to everything, and thus does not "specifically identify" anything. Unpacked, it appears to contain an attack on the causation standard used by the ALJ as well as attacks on at least three of the ALJ's findings (that Walker failed to prove his case "by a preponderance of the evidence," that Walker's hotline charge was not "bona fide," and that no protected activities contributed to American's decision). Exceptions to the first two findings were specifically and repeatedly urged elsewhere in the petition. Does this mean that we should read this general statement as an exception to that third finding? We are concerned that doing so would render the regulation meaningless.

    If we treat this general statement as sufficiently specific to raise this error, then we might in the future have to treat even a petition consisting solely of this one sentence as having raised all of the errors we have suggested, and more. (In a different case, it might also be read to raise an error concerning adverse action, for example.) Federal courts have not been as lenient in analogous circumstances. See, e.g., Primary Care Investors, Seven, Inc. v. PHP Healthcare Corp., 986 F.2d 1208, 1212 (8th Cir. 1993) (holding appellants had waived points of error included in single sentence that "in effect, assert[ed] 11 different errors . . . while providing no hint as to the nature of the asserted error on any of the 11 [issues]").

    Walker is slightly more specific in the Factual Summary section of his petition, but we are disinclined to consider as argument Walker's passing references and commentary. See, e.g., United States v. Wiggins, 104 F.3d 174, 177 n.2 (8th Cir. 1997) (holding appellant's challenge to certain procedure was waived even though he "made passing reference to [certain] procedure as erroneous," because "he failed to argue this point or cite any law in support of this contention."); All Pac. Trading, Inc. v. Vessel M/V Hanjin Yosu, 7 F.3d 1427, 1434 (9th Cir. 1993) (holding issue waived where "mention is made of it in the recitation of facts contained in the opening brief," but appellant "first raise[d] this issue as a grounds [sic] for appeal in its reply brief").

admission of this evidence might alter the outcome. It would not. Co-conspirators of Evans are not appropriate comparators to Walker, and investigating an embezzlement scheme differently from a hotline call is not evidence of disparate treatment. And even if Walker is correct in speculating that Evans "had a reason to have it shown that the hotline complaint was false," Walker does not show how the excluded evidence would tend to show either that Evans took any action to influence Kimball's report, or that protected activity prompted Evans to approve the termination.

    We conclude that substantial evidence supports the ALJ's finding that the falsehood solely motivated the termination. Even if we had reached the opposite conclusion, Walker has conceded that it was the primary reason. With this concession, Walker undercuts his argument – not made in his brief and raised only in the Factual Summary of his petition, see Petition at 6, and unsupported by any evidence or argument other than those points already discussed above – that American failed to prove it would have terminated his employment anyway. Therefore, we conclude that Walker would not prevail even in a dual motive analysis.

   Walker's hotline call was not protected activity, and substantial evidence supports the ALJ's finding that that Walker's termination was solely due to that call. Therefore, we AFFIRM the ALJ's order and DISMISS Walker's complaint.

   SO ORDERED.

         A. Louise Oliver
         Administrative Appeals Judge

         M. Cynthia Douglass
         Chief Administrative Appeals Judge