Horizon first responds that the Act simply does not reach incidents that occurred before its effective date of April 5, 2000. Second, Captain Brune did not file complaints within the requisite 90-day period after he received the written admonitions for his placard write ups and the takeoff warning horn incident. Third, if Captain Brune's claims pertaining to instruction he received about placards in August 1999 and the way he handled the takeoff warning horn incident in September 2000 are timely, Horizon's actions were consistent with FAA regulations. It sent the memoranda to stop him from impermissibly inventing his own preflight procedures. Horizon also implies that Captain Brune raised the safety issues as a ruse to impede timely airline operations.

The issues are:

1. Whether incidents that occurred before the Act was passed may be grounds for a claim;

2. Whether the AIR 21 complaint was filed timely;

3. Whether Captain Brune engaged in activities protected under the Act;

4. Whether Horizon took adverse employment actions against him, and whether protected activities contributed to those adverse actions;

5. Whether Horizon demonstrated by clear and convincing evidence that it would have taken the same actions in the absence of protected activities;

6. If Horizon presented clear and convincing evidence of a legitimate, non-discriminatory motive for its adverse employment actions, whether Captain Brune established by a preponderance of the evidence that Horizon's justifications were pretexts for discrimination; and

7. Whether Captain Brune is entitled to relief, and if so, what relief.

   Horizon provides commercial air service in several western states and Canada. Both Captain Brune and Horizon are subject to regulations of the Federal Aviation Administration on air safety, and are covered by AIR 21. Operations at Horizon are governed by the Part 121 regulations of the FAA, among others. TR 144.

   CX 48.

   Safety is always the pilot in command's business under FARs 1.1 (definition of pilot in command) and 121.533(d). In the best of all possible worlds, maintenance personnel would overlook no deficiency and correct immediately any found. But when they overlook one, and the Captain or First Officer see it, it ought to be entered in the aircraft maintenance log. The view reflected in Mr. Wiens' testimony, that the duties of pilots and maintenance are prescribed and limited in Horizon's manuals, and ought to be respected, is at odds with the FAA regulations, the text of the Flight Safety Operations Manual and the AIR 21 Act. It assumes maintenance personnel will carry out assigned inspections unfailingly, a dubious assumption for a system as complex as a commercial aircraft. Maintenance may have initial responsibility for placards, but it does not have sole authority to deal with them. All components of air carriers share responsibility to see that aircraft in service meet all FAA standards. Management may not take actions to dissuade pilots from noting (and thereby reporting internally) deficiencies in equipment the FAA requires on passenger aircraft. This is a central tenet of the employee protection provisions Congress enacted in AIR 21.

   On August 19, 1999, Captain Brune, Horizon's Chief Pilot Lamar Haugaard, Jerry Hevern (Manager of Dash-8 Flight Standards), and Gary Smith (Representative of the International Brotherhood of Teamsters) met in Portland, Oregon to discuss the exterior placards write up. Following that meeting, Chief Pilot Haugaard wrote in a letter to Captain Brune dated August 27, 1999:

It is not a pilot requirement to look for, or check, any external placards on the aircraft. I was specific in my instructions to you that you are not to make your own procedures that include external placards in your pre-flight inspections.

* * * *
"[A] continued lack of acceptable performance in these areas will result in discipline up to, and including, termination."

   CX 17, RX 6.

The Chief Pilot did not "see that letter as a form of discipline" because "no punitive action was taken." RX 11. Chief Pilot Haugaard also testified at trial that Horizon voluntarily had withdrawn the letter, and so would not use it in any disciplinary proceedings. TR at 94, 263.

   Horizon maintained that pilots who happen to see placard discrepancies during preflight inspections may enter them in the aircraft maintenance logs, but they may not inspect placards. TR 89-90. This policy applies to all Horizon pilots, not just Captain Brune. TR 258-260; CX 17. Certainly members of the flight crew are not affirmatively required to check every item of equipment, for to do so they would need to examine aircraft parts inaccessible in a walk-around inspection. The instruction Chief Pilot Haugaard wrote to Captain Brune conflicts with the duty of pilots to record deficiencies in aircraft safety equipment, and is more consistent with Mr. Wiens' flawed understanding of a pilot's role. Saying it is "valid" for pilots to write up missing placards they notice, but "improper" to check that placards are present and legible, because pilots who do so are making up their own procedures, is bureaucratic doubletalk. TR 88-90.

   Thereafter, Captain Brune was required to defend himself to the Chief Pilot on August 22, 2000 about several matters. TR 65.

   The flight could not proceed without a properly functioning warning horn. FAA regulations are specific about the takeoff warning system commuter aircraft such as the Dash 8 must have:

(a) The system must provide to the pilots an aural warning that is automatically activated during the initial portion of the takeoff roll if the airplane is in a configuration that would not allow a safe takeoff. The warning must continue until--
(1) The configuration is changed to allow safe takeoff, or
(2) Action is taken by the pilot to abandon the takeoff roll.
(b) The means used to activate the system must function properly for all authorized takeoff power settings and procedures and throughout the ranges of takeoff weights, altitudes, and temperatures for which certification is requested.

FAR 23.703(a)

    CX 45

   Captain Brune filed an HA-148 irregularity report after witnessing a weather station manager in Redmond, Washington provide a false weather report to a pilot landing there. TR 72, 152. This incident arose at the same time Captain Brune decided to de-ice his plane in Redmond during snow. The Redmond Station Manager, Jim Cook, claimed it was not snowing and that Captain Brune delayed the flight unnecessarily. When Assistant Chief Pilot Todd Henion investigated, he concluded that it did snow in Redmond and that Captain Brune's decision to de-ice the plane was proper. TR at 74, 151; CX 57, RX 9. The title Assistant Chief Pilot Henion gave to his memo, "Brune - More of the Story", shows the ongoing nature of management's review of Captain Brune's actions. Chief Pilot Haugaard acknowledged that he received a briefing from Assistant Chief Pilot Henion corrobrating Captain Brune's version of the facts. TR 151.

   Reps. Boehlert and Clyburn continued their efforts in the House, introducing H.R. 953 in the 106th Congress, which when amended became H.R. 1000, the "Wendell H. Ford Aviation Investment and Reform Act for the 21st Century." (AIR 21) (H.R. Conf. Rep. No. 106-513, 106th Cong., 2d Sess., March 8, 2000). Senate bills S. 648 and S. 1139 were incorporated into S. 82 on March 8, 2000. (S. Rep. No. 9, 106th Cong., 1st Sess.). Based upon compromise in conference, AIR 21 emerged from these bills and became law on April 5, 2000 as Public Law 106-181, codified as 49 U.S.C.A. § 42121 (2003). See, 2000 U.S. Code Cong. and Admin. News p. 80.

   The employee protection provisions of AIR 21 remained similar to those enacted in the Energy Reorganization Act of 1974, as amended in 1992, 42 U.S.C.A. § 5851 (ERA), and the Clean Air Act, 42 U.S.C.A. § 7622 (2003) (CAA). Like them, AIR 21 confers broad authority on the Secretary of Labor to order abatement of any violations.

   The employee protection portion of AIR 21, 49 U.S.C.A. § 42121 (2003), reads:

(a) No air carrier. . . may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)

(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 Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle 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 Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under this subtitle or any other law of the United States.

   The Administrative Review Board ("Board" or "ARB") views protected activities expansively. Tyndall v. U.S. Envtl Prot. Agency, 1993-CAA-6 and 1995-CAA-5 (ARB June 14, 1996) citing Jenkins v. U.S. Envtl Prot. Agency, 1992-CAA-6 (Sec'y May 18, 1994). Under the Clean Air Act, for example, the Board held that to qualify for protection an employee need not prove the employer actually violated environmental laws. The employee must show an objectively reasonable basis to believe the employer's conduct violated the law. Captain Brune must show he reported matters objectively related to air safety for his claim to succeed. See generally Kesterson v. Y-12 Nuclear Weapons Plant, 1995-CAA-12 (ARB April 8, 1997).

   The employee has the initial burden to prove that: (1) he engaged in a protected activity; (2) he was subjected to an adverse employment action; and (3) evidence raises a reasonable inference that the protected activity likely contributed to the employer's decision to take the adverse action. 49 U.S.C.A. §42121(b)(2)(B)(i) and (iii) (2003); 29 C.F.R. § 1979.104(a), (b)(1-2) (2003); see also Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101-02 (10th Cir. 1999).

   The employer then must demonstrate by clear and convincing evidence that it would have taken the unfavorable personnel action in the absence of the employee's protected activity. Trimmer, 174 F.3d at 1102. "Clear and convincing" evidence is more than a preponderance of the evidence but less than proof "beyond a reasonable doubt." See Yule v. Burns Int'l Sec. Serv., 1993-ERA-12 (Sec'y May 24, 1995).

   When the employer produces a legitimate, nondiscriminatory reason for its employment decision, the employee must prove by a preponderance of the evidence that the proffered reasons are "incredible and constitute a pretext for discrimination." Overall v. Tenn. Valley Auth., 1997-ERA-53 at 13 (ARB Apr. 30, 2001).

   An employee must file a claim "[w]ithin 90 days after an alleged violation of the Act occurs (i.e., when the discriminatory decision has been both made and communicated to the complainant)." 29 C.F.R. § 1979.103(d) (2003). The period begins to run when the employer takes the adverse action, not when the employee engaged in the protected activity. Erickson v. U.S. Envtl. Prot. Agency, 1999-CAA-2 (ARB July 31, 2001)(citing 29 C.F.R. § 24.3).

    Horizon argues that Captain Brune did not file his complaint within 90 days of the alleged instances of discrimination, as the Act requires. Captain Brune responds in two ways: first, that the history of adverse employment actions taken against him shows a pattern of discrimination creating a hostile work environment; and second, those stale allegations could be considered under a "continuing violation" theory, because there has been a course of discriminatory conduct related to a charge he timely filed. The question becomes whether Horizon took adverse employment actions, and whether Captain Brune filed a complaint within 90 days of one of them. Whether there was an adverse employment action is examined in Section IV. B. 2 of this decision.

    The original complaint Captain Brune filed with the Seattle Regional Office of OSHA on May 22, 2001 included allegations about discrimination before and after the Act became law.

Complainant claims that he has received disciplinary letters (including a letter dated 5/7/01) threatening him with discharge because he refused to accept an assignment because it was in violation of [FAR] 121.147(b)(1), "Hours of Rest." Since then, complainant claims he has been harassed including being instructed not to write up certain mechanical problems. Complainant alleges the disciplinary letters and harassment are in violation of [the Act].

Complaint, May 22, 2001.

   Horizon adversely affected Captain Brune's "compensation, terms, conditions, or privileges of employment" from 1999 until 2001, by docking his pay, by writing letters threatening discipline up to and including termination, and requiring him to repeatedly justify correct actions he took. The May 7, 2001 interoffice memo from Assistant Chief Pilot McKinsey telling him that "all previous counseling and guidance provided to you still remains in effect" makes Captain Brune's claims timely. It once again warned Captain Brune he was subject to discipline if he failed to heed the Chief Pilot's earlier written instructions. The FAA regulations expect a pilot in command to exercise broader discretion in reporting equipment problems or dealing with potential malfunctions than management's instructions to him allowed. Captain Brune's complaint mentioned the May 7, 2001 memo, so his complaint falls within the 90-day time window allotted by the Act.

   Reporting something the complainant reasonably believes has violated an underlying substantive act (whether dealing with nuclear safety, environmental protection, etc.) is a "protected activity." Davis v. United Airlines, Inc., 2001-AIR-5, at 10 (ALJ July 25, 2002).

   Federal law confers great responsibility on a pilot in command, and commensurate authority. "The pilot is command of an aircraft is directly responsible for, and is the final authority as to the operation of that aircraft." FAR 91.3. The pilot has a non-delegable duty to ensure an aircraft is airworthy, for FAR 91.7 says:

Civil aircraft airworthiness. (a) No person may operate a civil aircraft unless it is in an airworthy condition.

(b) The pilot in command of a civil aircraft is responsible for determining whether that aircraft is in condition for safe flight. The pilot in command shall discontinue the flight when unairworthy mechanical, electrical, or structural conditions occur.

   Raising specific concerns about safety issues is a protected activity. Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 931 (11th Cir. 1995). Captain Brune did that at Horizon before and after the Act became effective. First he filed two Flight Operations Irregularity Reports (HA-148) declining to pilot flights without sufficient rest, because doing so would violate FAR 121.471(d). CX 33. Second, he reported failed placards on Horizon aircraft on at least two occasions (July 30, 1999 and May 6, 2001), both of which were grounded in reasonable safety concerns, for they related to required equipment on the aircraft. The reports were entered in the aircraft maintenance log both times, which is a form of internal reporting. Captain Brune ultimately reported the incidents to the FAA and to OSHA, but the internal report is the primary basis for his claim. Third, Captain Brune reported the problem he encountered with the takeoff warning system on August 4, 2000 by entering it in the maintenance log. And once again, Captain Brune reported this incident to the FAA and to OSHA. Fourth, around August 14, 2000, Captain Brune reported irregularities with securing the GPU in the cargo area, and later filed an irregularity report after witnessing a station manager in Redmond, Washington make a false report about hazardous weather to a crew in flight. Misrepresenting weather conditions to a crew in flight violates FAR 121.101. TR at 72. Management required him to justify each of these actions. Sometimes he was exonerated, but other times he was threatened for the reports he had made. Requiring these justifications was a pattern of harassment carried out in retribution for his reporting.

   Captain Brune made his reports under Horizon's internal guidelines and FAR 121.563, which states:

The pilot in command shall ensure that all mechanical irregularities occurring during flight time are entered in the maintenance log of the airplane at the end of that flight time. Before each flight the pilot in command shall ascertain the status of each irregularity entered in the log at the end of the preceding flight.

FAR 121.563.

   All the reports objectively related to safety of passengers and aircraft. They were protected activities after AIR 21 Act became effective. This would be true even if Captain Brune's allegations were ultimately unsubstantiated. Minard, 92-SWD-1, at 8. His inspection and reporting duties placed him in a position similar to that of the safety and quality control inspector in Mackowiak when he made reports to Horizon.

   Regulations obliging pilots to record or report irregularities engender conflicts with managers trying to ensure on time performance, and maximize the number of revenue legs flown; management goals suffer when recorded deficiencies have to be corrected. See generally, John J. Nance & Charles David Thompson, The Pilot Records Improvement Act of 1996: Unintended Consequences, 66 J. Air L. & Com. 1225 (2001). Traditionally, a pilot facing the dilemma of reporting irregularities or antagonizing management could resign or accept termination rather than comply with pressure to overlook dangerous conditions. Before 1996, a pilot who resigned or was terminated in these circumstances could apply to another air carrier and give his explanation for the previous job separation or loss. See Nance & Thompson, supra, at 1226-28. The Pilot Record Improvement Act of 1996 (PRIA) complicates the pilot's situation, for PRIA requires air carriers to report the records of former employees to prospective airline employers. 49 U.S.C.A. § 44703(h)(1) (2003). An unfavorable entry in the employment record, especially one that an air carrier terminated the pilot for "unsatisfactory performance," becomes permanent and public, with little meaningful opportunity for explanation, and potentially ruinous consequences for honest and competent pilots. Id.; Nance &Thompson, supra at 1236.

   The statutes and regulations governing air commerce assign safety the highest priority. See 49 U.S.C.A. § 40101(a)(1) and (3), (d)(1) (2003). PRIA minimizes the possibility that a pilot with dangerously flawed judgment may obtain employment with an airline that does not know about earlier instances of incompetence, by making pilots' personnel files available to later potential employers. AIR 21 serves as a sort of counterbalance. It promotes safe air commerce by protecting pilots (and other airline employees) from implicitly or overtly coercive memoranda placed in their personnel files to discourage reports about deficiencies in operations or equipment. Both PRIA and AIR 21 reflect the central position pilots occupy in implementing the Congressional policy of making air travel as safe as possible.

   As pilot in command, Captain Brune had "final authority and responsibility for the operation and safety of the flight." FAR 1.1, see also FAR 91.3, supra. He bore ultimate responsibility for operational control of the aircraft (along with the aircraft dispatcher); and for the safety of the passengers, crew, cargo, and aircraft. FAR 121.533(b), (e). This responsibility explicitly requires the pilot in command to ensure compliance with regulations and operations specifications, see FARs 121.535(b), 121.537(b).

   Assistant Chief Pilot McKinsey understood that Captain Brune's concern for safety and quality conflicted with Horizon's goals, because it caused the carrier expense and delay. He directed Captain Brune to write the failed placard up in the maintenance log "from a need to resolve the impasse between [Captain Brune] and maintenance, and get the flight running". This situation embodies the concerns that led Congress to extend whistleblower protection to air carrier employees, to protect them from retribution for engaging in protected activity. FAA regulations require the pilot in command to ensure rather than assume that all is well with the aircraft, and thereby protect the safety of the passengers, crew and aircraft. No other officer or employee of an airline may interfere with that non-delegable duty. The Chief Pilot's memo of August 27, 1999 forbidding Captain Brune from writing up placard deficiencies set up the problem Assistant Chief Pilot McKinsey had to handle. Had Horizon management allowed pilots to exercise the duties and authority assigned to them by the FAA, neither the Chief Pilot's letter of August 27, 1999 nor Assistant Chief Pilot McKinsey's memo of May 7, 2001 would have been written.

   Captain Brune has satisfied the initial burden of proving that he engaged in protected activity.

    A complainant must show that something the employer did adversely affected his employment. See Trimmer, 174 F.3d at 1103. The Secretary's regulations forbid air carriers "to 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) (2003). See also, 29 C.F.R. § 24.2(b) (2003) (adopting similar definitions under similar whistleblower protection statutes). AIR 21 protections are not reserved for especially detrimental employment actions, such as termination, suspension, demotion, or loss of status or pay.

   Horizon took these adverse actions against Captain Brune from 1999 to 2001:

1) reducing Captain Brune's pay in July and September 1999 for refusing to pilot two flights without prescribed rest, in violation of flight regulations;

2) sending the intimidating memo to Captain Brune on August 27, 1999, threatening termination if he failed to adhere to company procedures by continuing to write up placard deficiencies;

3) launching an investigation into and requiring Captain Brune to defend several correct decisions he made, including:

(i) writing up the takeoff warning system on Flight 2018 on August 4, 2000,

(ii) requiring the removal of the improperly secured GPU from a flight,

(iii) filing the irregularity report after he heard a station manager give false weather advice to an incoming flight crew, (RX 9)

(iv) de-iceing an aircraft when it snowed in Redmond, WA, over the station manager's objection that it delayed the flight (RX 9);

4) preparing to "hammer" Captain Brune at the August 22, 2000 meeting;

5) sending a second intimidating memo on September 8, 2000 from the Chief Pilot (CX 49), after he defended himself at the August 22, 2000 meeting, again threatening termination if Captain Brune failed to adhere to company guidelines;

6) sending the May 7, 2001 interoffice memo from Assistant Chief Pilot McKinsey that reiterated the earlier written threats of August 27, 1999 and September 8, 2000 (CX 24).

   Beginning in mid-1999 and continuing at least through mid-2001, Horizon management repeatedly threatened, harassed and tried to intimidate Captain Brune to dissuade him from carrying out all his duties as pilot in command. The statement "failure to adhere to our company's approved procedures . . . could lead to discipline up to and including termination" is a potent threat to a person who is the family breadwinner and health care insurance provider, as management meant it to be. TR at 67-68, CX 49.

   The May 7, 2001 memo by itself is a sufficient adverse employment action to establish a timely AIR 21 claim. In conjunction with the incidents mentioned above, the facts show a hostile work environment which constitutes one unlawful employment practice. Captain Brune has satisfied the burden of showing one or more adverse employment actions against him.

   The final predicate of a prima facie case is to determine whether Captain Brune's protected activity was a "contributing factor" in Horizon's "unfavorable personnel action[s]". 49 U.S.C.A. § 42121(b)(2)(B)(i), (iii) (2003). The decision in Marano v. Department of Justice, 2 F.3d 1137 (Fed. Cir. 1993), considered that term's

meaning in the Whistleblower Protection Act for federal employees, 5 U.S.C.A. § 1221(e)(1) (2003). That court wrote:

The words "a contributing factor" means "any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision. This test is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a "significant," "motivating," "substantial," or "predominant" factor in a personnel action in order to overturn that action.

Marano, 2 F.3d at 1140 (citations omitted). The term should be interpreted similarly under AIR 21.

   Captain Brune can demonstrate the nexus required in several ways: (1) by showing that the protected activity and the adverse employment action are temporally proximate; (2) by showing that the employer deviated from established disciplinary procedures when disciplining the complainant; or (3) by showing that the complainant received disparate discipline from similar employees.

   Temporal proximity is enough to raise an inference of causation in a whistleblower matter. Jackson v. Ketchikan Pulp. Co., 93-WPC-7 and 8 (Sec'y Mar. 4, 1996); Conway v. Valvoline Instant Oil Change, Inc., 91-SWD-4 (Sec'y Jan. 5, 1993); Tracanna v. Arctic Slope Inspection Serv., 1997-WPC-1 (ARB July 31, 2001). Temporal proximity sufficient to raise the inference has ranged from two days, Lederhaus v. Donald Paschen & Midwest Inspection Serv., Ltd., 1991-ERA-13 (Sec'y Oct. 26, 1992), to about one year, Thomas v. Ariz. Pub. Serv. Co., 1989-ERA-19 (Sec'y Sept. 17, 1993). The causal connection can be severed by a significant length of time or by some legitimate intervening event. Tracanna, slip op. at 7-8; Evans v. Wash. Public Power Supply System, 1995-ERA-52 (ARB July 30, 1996) (citing Williams v. S. Coaches, Inc., 1994-STA-44 (Sec'y Sept. 11, 1995)).

   Most of the adverse actions Horizon took against Captain Brune followed close on the heels of protected activities. The August 27, 1999 letter threatening termination came just a few days after Captain Brune met with his superiors to discuss the exterior placards incident (August 19, 1999), and only a few weeks after the incident itself (July 30, 1999). The preliminary August 9, 2000 investigation into the takeoff warning system incident by Assistant Chief Pilot McKinsey happened five days after the incident itself, the meeting to discuss it happened on August 22, and the Chief Pilot's memo was sent on September 8, 2000. Captain Brune's protected activities met prompt hostile responses from Horizon management. The necessary nexus was present between the activities and the adverse actions.

   Captain Brune also demonstrated disparate treatment by his managers. Management sent no memos threatening discipline up to and including termination to other pilots who reported problems they observed on aircraft that were not identified specifically on preflight checklists, even when those reports caused maintenance delays in takeoffs. Management instead took the less aggressive tactic of implying those pilots would be sent to further training or put through burdensome flight proficiency checks. CX 56, TR 161-163. The disparate treatment is most easily seen in the "Rest of the Story" memo Assistant Chief Pilot McKinsey wrote. He suggested that the Chief Pilot call Captain Brune to a Flight Operations Review Board meeting without notice, and "hammer" him "if he lie[d] through his teeth" there. CX 57. Management had no valid basis to fear that Captain Brune was untruthful. The Assistant Chief Pilot's belligerent tone and desire to "hammer" Captain Brune were not typical of how Horizon dealt with its professional pilots, and illustrates management's discriminatory animus toward him. The Chief Pilot convened no Flight Operations Review Board; the August 22, 2000 meeting where Captain Brune was required to justify recent actions was a less formal gathering, but led to the Chief Pilot's intimidating memo of September 8, 2000 (CX 49). Along with the temporal proximity to Horizon's other adverse employment actions, the disparate treatment shows that Horizon singled Captain Brune out for retribution.

   Captain Brune has adequately proven a prima facie case under AIR 21. Horizon took adverse actions against Captain Brune in one form or another, usually right after Captain Brune had engaged in some form of protected activity.

   Horizon must demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel actions in the absence of the protected activities. 49 U.S.C.A. § 42121(b)(2)(B)(iv) (2003). Respondent argues it took the adverse employment actions because Captain Brune deviated from standardized company procedures.

   Evidence fails to support this argument. Through the testimony of Don Wiens, the manager in charge of developing procedures in the Flight Standards Manual for the Dash-8 aircraft, Horizon expressed the importance of a pilot following the Flight Standards Manual:

Q: [H]ow important is it for a pilot to follow the procedures [contained in the Flight Standards Manual]?

A: It's very important. These are the procedures by which we put our aircraft into proper configuration for takeoff. Everything is set up for takeoff and departure.

TR at 174-75.

   As Mr. Wiens testified at trial, the Flight Standards Manual is a large volume that is constantly evolving. The Manual itself recognizes that crews will confront abnormal situations, and states:

The flight crew must be aware that checklists and procedures cannot be created for all conceivable situations and are not intended to preclude the use of good judgment. In some cases the Captain may be required to exercise his/her emergency authority to deviate from the checklists and operating procedures contained herein.

CX 48.

   Captain Brune could follow every procedure in the Flight Standards Manual to the letter, but rigidly doing so would contradict the Manual. Pilots must also use their professional judgment. Mr. Wiens acknowledged that inspecting the de-ice boots on the tail of an airplane during a preflight, or taxiing an airplane with a single pilot are not described in the Manual, yet are examples of appropriate things pilots do. TR at 189-197.

   Horizon's Chief Pilot recognized Captain Brune as "a careful and consummate professional" who took seriously FAA regulations and Horizon procedures. CX 49. Writing up failed placards, and following up on indications that a takeoff warning system may be malfunctioning are things pilots ought to do. They represent matters committed to a pilot's judgment, as long as there is an objectively reasonable basis for what is done. FAA regulations and Horizon policy delegate authority to a pilot to use his professional judgment in abnormal situations; Horizon cannot reprimand him for reasonable exercises of that judgment. Horizon's argument that it took its adverse against Captain Brune because he invented his own procedures is simply untenable.

   In sum, I find that Horizon failed to show a non-discriminatory motive for treating Captain Brune as it did. I need not address the final component in the burden of proof standards (viz., whether Captain Brune demonstrated that Respondent's proffered reasons were a pretext for discrimination). Horizon violated the Act, and Captain Brune is entitled to relief.

   Captain Brune seeks various forms of relief – monetary and otherwise – to remedy Horizon's violations.

   These are the Secretary's regulations on fashioning a remedy:

If the administrative law judge concludes that the party charged has violated the law, the order shall direct the party charged to take appropriate affirmative action to abate the violation, including, where appropriate, reinstatement of the complainant to that person's former position, together with the compensation (including back pay), terms, conditions, and privileges of that employment, and compensatory damages. At the request of the complainant, the administrative law judge shall assess against the named person all costs and expenses (including attorney's and expert witness fees) reasonably incurred.

    29 C.F.R. § 1979.109(b) (2003).

   Captain Brune has proven that from mid-1999 to the time of trial, he engaged in a number of protected activities, and suffered adverse employment actions by Horizon for doing so. His record at Horizon should be purged of the negative references found in the relevant letters and memos written to and about him. Horizon maintains several personnel folders, for different purposes. See CX 54; TR 285. The Chief Pilot's threatening letters dated August 27, 1999 and September 8, 2000, the Assistant Chief Pilot's August 9, 2000 memoranda to the Chief Pilot (the Rest of the Story memo), and the May 7, 2001 memo from Assistant Chief Pilot McKinsey to Captain Brune are to be removed from all of Captain Brune's records and destroyed. This applies to all folders, however denominated by Horizon and in all the places they are kept. These documents are not items which must be retained under the Pilot Records Improvement Act, 49 U.S.C.A. § 44703(h)(1)(B)(ii)(II) (2003), for the Chief Pilot testified that some of them already have been voluntarily removed from some folders.

   Compensatory damages may be awarded for emotional pain and suffering, mental anguish, embarrassment, and humiliation under 29 C.F.R. § 1979.109(b) (2003). Damages must be supported by evidence of the physical or mental consequences caused by the adverse employment actions proven by the employee. The testimony of medical or psychiatric experts is not strictly necessary. Thomas v. Arizona Public Service Co., 1989-ERA-19 (Sec'y Sept. 17, 1993).

   Citing a number of whistleblower cases, Captain Brune seeks between $1,000 and $20,000 in compensatory damages for the humiliation, mental anguish, and the hypertension that he suffered as a result of Horizon's adverse employment actions. The facts of those cases were far different. The complainants suffered mental anguish due to termination or demotion, and had actual wage losses, while Captain Brune never was fired or demoted. Other than the days that he was docked pay for not flying, his salary remained the same. His salary had been reinstated by his action in the Washington state courts.

   Even if Captain Brune's case were similar to the ones he relies on, he failed to prove his injuries adequately. He made an effort to show that he suffers from hypertension, and to link it to anxiety over work conditions, by submitting a letter dated October 3, 2002 from his treating physician, Steven M. Lisook, D.O. CX 55. Dr. Lisook wrote in his report "[i]t is my opinion that the reported hostile work environment created at Horizon Airlines is a significant, and may be the major contributing factor, to [Captain Brune's] current hypertension state." Id. Chronology does not equal causation. There are several factors that "may" have caused Captain Brune's hypertension. In the absence of testimony from a doctor firmly correlating Captain Brune's cardiovascular condition with what he experienced at Horizon, he failed to demonstrate a compensable injury. Dr. Lisook did not testify at trial, and his statement was not subject to cross examination by Horizon. It would be fundamentally unfair for me to rely on the brief, conclusory opinion of the treating doctor who did not testify, which is why that letter was not admitted as evidence. CX 55 for identification.

   Captain Brune asserted that he has suffered mental anguish and humiliation. No evidence corroborates these statements. He also failed to put forward an appropriate measure of damages for the items claimed.

   In Varnadore, the ALJ considered fee petitions totaling over $700,000. Relying primarily on Hensley v. Eckerhart, 461 U.S. 424 (1983) for the applicable principles, the judge wrote:

To recover costs such as attorney fees, a plaintiff must be a prevailing party. In this context a party may be considered to have prevailed if they succeeded on any significant issue in litigation which achieves some of the benefit the party sought in bringing the suit. [citation omitted]. By that standard, Mr. Varnadore is a prevailing party.

   Captain Brune has prevailed here. Although he has recovered no compensatory damages, he proved that Horizon violated the Act and that he is entitled to abatement of its violations. Success on this significant issue carries with it his attorney's fees and his costs. 29 C.F.R. § 1979.109(b) (2003). Captain Brune is not entitled to receive attorney's fees for his own trial preparation time or for his time at the trial itself. Doyle v. Hydro Nuclear Services, 1989-ERA-22 (ARB May 17, 2000). He may be reimbursed attorney's fees paid or owed to his former lawyer for the work Ms. Stuart did. Varnadore v. Oak Ridge National Laboratory, 1992-CAA-2 and 5 and 1993-CAA-1 (ALJ Sept. 22, 1994). He seeks these fees and costs: $36 for copying and mailing, $298 for missing a trip to attend a company-ordered deposition on October 11, 2002, $275 for the trip removed from his schedule on November 12, 2002 to attend the hearing, and attorney's fees in the amount of $3,535 to cover a legal bill from Ms. Diana Stuart, Esquire.

   The Act does not explicitly mention as recoverable costs money Captain Brune lost when he missed work to attend trial or a deposition, but case law suggests that he may be entitled to some out of pocket costs. Creekmore v. ABB Power Systems Energy Services, Inc., 1993-ERA-24 (Sec'y Feb. 14, 1996); Hobby v. Georgia Power Co., 1990-ERA-30 (ARB Feb. 9, 2001). The employer in Hobby was required to pay the employee's attorney fees and costs associated with attending the hearing (e.g., costs for transportation, lodging and meals), but was denied costs for attending the deposition of a witness because the ARB and the judge who decided the case regarded him as not "absolutely necessary or even helpful" at the deposition. Captain Brune would be entitled to recover costs associated with attending the hearing and his own deposition (where he assuredly was "necessary and helpful" to the proceeding), but he is not entitled to recover as costs wages for missing work on those days. He may submit documentation of the approved costs along with an attorney fees petition. This result encourages whistleblowers to pursue claims despite the potential sacrifices they may have to make.

   It is ORDERED that:

1. Horizon shall post immediately in a conspicuous place in or about its facility, including places where notices for employees are customarily posted, and maintain for a period of at least 60 consecutive days from the date of posting, the Notice to Employees (signed by the appropriate official) that was attached to the Preliminary Order of December 20, 2001;

2. Horizon shall comply with the employee protection provisions of the Act and with the provisions of the Notice to Employees;

3. Horizon shall make Captain Brune whole; it shall purge from Captain Brune's personnel files all references to engaging in a protected activity and the threats of discipline resulting from doing so, specifically including the memos to him from the Chief Pilot and Assistant Chief Pilot described above in the portion of the decision on relief; those memoranda shall not be used against Captain Brune in the event that he applies for any future employment opportunities; nor disclosed in references provided for Captain Brune to any potential employers;

4. Horizon shall pay all costs and expenses, including attorney's fees, reasonably incurred by Captain Brune in connection with this proceeding. Captain Brune has thirty days to submit an application for attorneys fees, which must be accompanied by a service sheet showing service upon Horizon. The application for fees and costs shall be prepared on a line item basis. It shall clearly state the hourly rate the attorney typically charges and receives from clients who retain her on an hourly basis, and be supported by a declaration establishing those facts. It shall also contain a clear itemization of the types and complexity of services rendered. Horizon shall have 14 days following service of such an application to file any objections, which shall be made on a line item basis. A reply to the objections may be filed within ten days after the objections are served. The parties or their counsel shall meet within ten days thereafter and attempt to resolve all objections. They shall file a joint report within in ten days of their meeting stating the objections resolved and those remaining for decision.

5. Horizon shall not retaliate or discriminate against Captain Brune in any manner for instituting any proceeding under or related to the Act.

      WILLIAM DORSEY
      Administrative Law Judge

NOTICE OF APPEAL RIGHTS: This decision shall become the final order of the Secretary of Labor pursuant to 29 C.F.R. § 1979.110 (2003) unless a petition for review is timely filed with the Administrative Review Board ("Board"), US Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington DC 20210, and within 30 days of the filing of the petition, the ARB issues an order notifying the parties that the case has been accepted for review. The petition for review 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 by the parties. To be effective, a petition must be filed within ten business days of the date of the decision of the administrative law judge. The date of the postmark, facsimile transmittal, or e-mail communication will be considered to be the date of filing; if the petition is filed in person, by hand-delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the Board. Copies of the petition for review and all briefs must be served on the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, DC 20210. See 29 C.F.R. §§ 1979.109(c) and 1979.110(a) and (b), as found in OSHA, Procedures for the Handling of Discrimination Complaints Under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century; Final Rule, 68 Fed. Reg. 14099 (Mar. 21, 2003).