(Complainant's Exh. 3). Complainant avers that she sent this message as a precaution to alert flight crews to potential security breaches. (Tr. 39).

   When SOC management learned of Complainant's transmission, she was required to attend a counseling session with SOC management and a union representative. (Tr. 40). The gist of the counseling session was the inappropriateness of her message, as it had not been authorized by management. (Tr. 41). According to AA policy, official security information is only to be transmitted through or at the request of AA management. During the counseling session, Complainant stated that she understood the inappropriate nature of her actions and she would not send another similar message. (Tr. 42-43).

   The counseling session was memorialized with a CR-1 entry in Complainant's file. (Comp.'s Exh. 3). A CR-1 is essentially an internal personnel log which is kept for each AA dispatcher. The log is used to record both positive and negative performance issues. A CR-1 is a part of AA's disciplinary process, the PPC (Peak Performance through Commitment), although it is not always used to address negative performance issues. The PPC involves a three step process by which employees can be subject to discipline: a first step advisory letter, a second step advisory letter, and a career decision day. The first and second step advisory letters are essentially warnings which can be used to support further discipline. The career decision day is the final step before termination or resignation occurs. (Tr. 165-168).

   Complainant was not issued a first or second step advisory letter. (Tr. 170). Rather, her behavior was noted in a CR-1, which is a separate and distinct type of personnel action. Complainant was warned that repetition of her actions would result in the issuance of a first step advisory letter. (Tr. 42).

   On June 12, 2002, Complainant filed a complaint with the U.S. Department of Labor and the FAA, requesting whistleblower protection. (Tr. 43, Resp.'s Exh. 1). Since the incident, Complainant has not been terminated by AA and continues to work as a dispatcher in the same capacity. Complainant has not been subjected to a decrease in pay, hours worked, or benefits received. (Tr. 169). She has returned to "business as usual." (Tr. 139).

   The employee protection provision of AIR 21 provides that no air carrier may discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee "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 or any other law of the United States." 49 U.S.C. § 42121(a)(1).

   The jurisprudence developed under existing whistleblower statutes, specifically the Energy Reorganization Act of 1974 ("ERA"), as amended in 1992, the Whistleblower Protection Act ("WPA"), and environmental statutes provide the framework for litigation under AIR21. See Davis v. United Airlines, Inc., 2001-AIR-5 (ALJ July 25, 2002). The burden of proof standards are also identical to those of the environmental cases. The complainant must first establish a prima facie case. 49 U.S.C. § 42121(b)(2)(B)(i). However, even if the complainant establishes a prima facie case, raising an inference that the protected activity was a contributing factor in the adverse action alleged in the complaint, the respondent can still avoid liability by proving with clear and convincing evidence that it would have taken the same adverse action in the absence of the employee's protected activity. 49 U.S.C. § 42121(b)(2)(B)(ii).

   To establish a prima facie case, a complainant must show (1) that the complainant engaged in protected activity as defined by the Act, (2) that the employer knew complainant engaged in protected activity, (3) that the complainant suffered an adverse employment action, and (4) a nexus between the alleged adverse action and the protected activity sufficient to raise an inference that the protected activity was a contributing factor in the adverse action. 29 C.F.R. § 1979.104(b).

   There is no dispute that Complainant engaged in protected activity of which American was aware. Twenty-nine C.F.R. § 1979.102(b) prohibits discrimination against an employee because that employee provided the employer or the Federal Government with "information relating to any violation or alleged violation of any order, regulation or standard of the Federal Aviation Administration." Discrimination against an employee because that employee has filed "a proceeding relating to any violation or alleged violation of any order, regulation or standard of the FAA" is also prohibited. 29 C.F.R. § 1979.102(b)(2).

   Complainant filed an ASAP report with American and the FAA. (Tr. 28). In this report, she alleged violations of Federal Aviation Regulations relating to the handling of the Richard Reid incident (Resp.'s Exh. 1). Her ASAP report became the subject of a meeting of the ERT, as well as further investigation. (Tr. 29). This is clearly protected activity under the Act, as AIR21 prohibits discrimination based on the filing of a report or the providing of information relating to an alleged violation of FAA regulations.

   The central issue is whether the allegedly retaliatory action, a CR-1 entry in Complainant's file, rose to the level of adverse employment action. To establish adverse employment action, a complainant must show that the action had some tangible job consequence. See Shelton v. Oak Ridge National Laboratories, 1995-CAA-19 (ARB March 30, 2001). Possible tangible job consequences include termination, demotion, decrease in salary, benefits, responsibilities or title. Id.; see also Oest v. Illinois Dep't of Corrections, 240 F.3d 605 (7th Cir. 2001). Absent a showing of tangible consequences, mere criticism or negative performance evaluations cannot be considered adverse action. Ilgenfritz, Jr. v. U.S. Coast Guard Academy, 1999-WPC-3 (ARB August 28, 2001). An "Oral Reminder" is not adverse action without tangible job consequences such as termination, demotion, or decrease in salary. Shelton, 1995-CAA-19.

   In the Shelton case, a whistleblower claim brought under the environmental acts, the action was an oral reminder that was memorialized with a memorandum in the complainant's personnel file. The complainant was reprimanded for her use of abusive language with a co-worker. The oral reminder was the lowest or first step in the disciplinary process and the memorandum was held in the complainant's file for six months, after which time it was removed. The complainant did not assert that the oral reminder and memorandum had any tangible job consequences, only that the memorandum placed in her file had the potential to lead to one of these actions. The complainant had not been terminated or demoted, nor had she suffered any loss in pay or hours as a result of the oral reminder. Consequently, it was held that absent a showing that the oral reminder and memorandum had a tangible impact on the complainant's employment, the action did not rise to the level of adverse action as required under the environmental acts. Shelton, 1995-CAA-19.

   The Shelton case is strikingly similar to this case: Complainant was ordered to participate in an oral counseling session, which was memorialized in a CR-1 entry in her personnel file. As discussed above, the CR-1 entry is not itself considered disciplinary in nature, although this particular CR-1 was entered to address negative performance issues. Despite Complainant's assertions that the CR-1 entry is the first step in the disciplinary process, standing alone, the CR-1 entry has no tangible job consequences. Complainant has admitted that the CR-1 entry has not been the basis for any demotion, discharge, loss of pay, benefits, or hours, or other negative consequences. Without a showing of tangible job consequences arising from the CR-1 entry, Complainant has not established that the action taken was adverse in nature.

   In Shelton, the ARB went on to note that a reprimand cannot be "considered adverse simply because each reprimand may bring an employee closer to termination." Id. Without additional misconduct by the employee, the previous reprimand cannot be the sole basis of future discipline. In this case, the CR-1 entry by itself cannot be used for future disciplinary action; there must be additional negative performance to support the next step in the disciplinary process. Although the CR-1 entry will remain indefinitely in Complainant's file, it can only be used in future disciplinary action for two years from the date of issue. (Tr. 170). The fact that the CR-1 entry, coupled with additional misconduct by the Complainant, could lead the Complainant closer to termination is too tenuous to support a finding of adverse action. Complainant acknowledged that her actions which gave rise to the CR-1 were incorrect and agreed to refrain from similar conduct in the future. Just as the oral reminder and memorandum in the Shelton case, the CR-1 entry alone is not sufficient to be considered adverse action. As such, Complainant has not shown that the CR-1 entry is adverse action under the Act.

   In addition, not all adverse employment acts are considered actionable. See Ilgenfritz, 1999-WPC-3. Employer criticism, while perhaps not flattering or agreeable to the employee, is a necessary and appropriate "feature of the workplace." Id., citing Davis v. Town of Lake Park, 245 F.3d 1232 (11th Cir. 2001). Absent tangible job consequences, actions such as negative performance evaluations do not rise to the level of adverse action required to be actionable under AIR21. In this case, the CR-1 entry resembles a reprimand. Complainant may not be pleased with its inclusion in her file; nevertheless, without tangible job consequences, it is not an adverse action in and of itself.