Brief at 7. But the destruction of these sheets does not tend to show that protected activity contributed to American's discipline of Walker, because the sheets would not have damaged American's defense even if they had showed that other supervisors continued to sign exception sheets after the policy change, and even if they had showed that other supervisors had done so more than Walker. Walker does not contend that the exception sheets would indicate that Bailey's assignment of Walker to a different shift was due to protected activity rather than to the B-check incident American believed had been caused by Walker's mishandling of the NBO policy change.
Walker also argues that the participation by Evans and Bailey in the embezzlement scheme showed that they were "not terribly concerned about dishonesty," so they must not have been concerned about the dishonesty reflected in Walker's false hotline call, so they must have had another reason, and that reason must have been "the whistleblowing itself." See Brief at 21. But except for its first step, this far-fetched argument is entirely speculative. Moreover, an embezzler's lack of concern about his own dishonesty does not prove that the embezzler does not remain concerned about another's dishonesty. It certainly does not show, here, that retaliation was the reason.
Finally, Walker asks us to admit the evidence that the ALJ excluded. According to Walker, that evidence would show "disparate treatment" because Evans terminated Walker's employment but did not terminate the employment of those involved with Evans in the embezzlement scheme, see Brief at 16-17, 19-22, and because American's investigation of his hotline call was brief and performed only by Kimball, but its investigation of the embezzlement scheme was extensive and performed by "‘teams' of investigators." Id. at 19-21. In Walker's view, that evidence also "demonstrates that Evans did not want outside investigators at LAX who might uncover the criminal activity, and that therefore he had a reason to have it shown that the hotline complaint was false." Brief at 19.
Because the evidence Walker asks us to admit was presented to and rejected by the ALJ, we understand Walker's argument as an argument that the ALJ abused his discretion by failing to admit this evidence. Abuse of discretion is difficult to show – and because a hearing has been held, Walker would have to show not only that the ALJ abused his discretion but also that the
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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.
Conclusion
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
[ENDNOTES]
1 American referred to the process of signing in and out as "badging." A failure to badge out, for whatever reason, was termed a "no badge out" (NBO). T. 1203. An exception sheet was used when a mechanic had worked more hours than were shown on the mechanic's timecard – for example, when the mechanic had worked through lunch, worked overtime, or had not badged out. R. D. & O. at 6. Both the crew chief and the level 4 manager had to approve an exception sheet. See T. 514, 604. In an NBO deal the employee intentionally did not badge out, which allowed the supervisor to record a departure hour later than the employee's actual one. R. D. & O. at 6.
2 From March 2001 through July 2001, while Evans was away on medical leave and then on assignment in Tulsa, Bailey performed most of Evans's duties as managing director and Nasdeo performed Bailey's duties. R. D. & O. at 3; see T. 2385, 3067, 3163-64.
3 The ALJ stated: "Although Kimball and Rogers have both testified that their romantic relationship did not begin until well after the investigation was completed, that testimony is less credible tha[n] the countervailing testimony indicating that their affair had in fact begun as early as May of 2001." R. D. & O. at 35 n.11.
4 In the original handwritten retraction, the words "did not" are written in the margin.
5 A list of these errors is provided in footnote 17.
6 American appears to have abandoned its initial argument that "[t]hese credibility findings . . . rest upon the demeanor of witnesses." Respondent's Opposition to Complainant's Motion for Extension of Time at 4.
7 Although Walker raised this argument in his petition, he did not provide any argument or case citation until his reply. Walker's brief asserted that the ALJ's determination was not demeanor-based, but did not discuss the appropriate standard of review. See Brief at 1.
8 In SOX cases, as with AIR 21, we review findings of fact under the substantial evidence standard. See Henrich, slip op. at 7-9 (noting that "[a]ctions brought pursuant to the SOX are governed by the legal burdens of proof set forth in the employee protection provision of [AIR 21]").
9 American appears to disagree with this finding. See Response at 6 n.1. Because we conclude that substantial evidence supports the ALJ's determination that Kimball testified truthfully about Walker's confession, and because a finding that Kimball was not biased would merely provide further support for that determination, we need not delve into this issue.
10 Walker's attempts to attack this finding are included only in his petition's Factual Summary and his brief's Statement of Facts. (Although prepared by counsel, the brief has no designated argument section. We assume based on its content that the argument section begins on page 12.) As we discuss below, argumentative suggestions located only in recitations of facts are disfavoured and justifiably may be considered waived.
11 As with his previous argument, Walker's suggestion in this regard took the form of a side comment during his recitation of facts.
12 See Response at 2 ("[Walker's] lies could not withstand the rigors of multiple days of hearing. . . . [Walker] was forced to spin an increasingly fantastic story . . . such as his claim that . . . Kimball[] was regularly seen on the hangar floor physically abusing aircraft mechanics.").
13 The ALJ indicated: "I don't think the evidence [of other locker break-ins] would have much value at all without some proof that American was behind the break-ins. So I'm going to exclude that evidence." T. 2607.
14 We understand the ALJ's finding to be that Walker did not dispute Kimball's report during either the August 6 or the August 7 meeting. In response to American's contention that Walker did not even dispute Kimball's report in his OSHA complaint, but rather waited until American moved for summary decision, see Response at 1-2 ("Complainant's contention that his hotline report was in fact truthful, that his admissions were coerced or not truly admissions at all came only after Complainant faced a Motion for Summary Decision and needed a strategy to allow his case to survive."), Walker's petition argued that his post-termination requests for reinstatement and an investigation were "tantamount" to a denial of Kimball's report. Petition at 16. Walker sensibly abandoned this argument in his brief. None of Walker's seven requests included any challenge to Kimball's report that he had confessed. See RX 46 (Walker's September 28, 2001 letter requesting reinstatement), 48 (Walker's subsequent requests for reinstatement). More important, what the ALJ found significant was Walker's failure to challenge Kimball's report while still employed. Even if Walker did challenge Kimball's report after his employment ceased, such a tardy challenge would not eliminate the significance of his failure to make an earlier challenge.
15 As with many of his arguments, Walker makes his duress argument only in his brief's Statement of Facts, and only in cursory fashion. As we discuss below, both these tactics are highly disfavored.
16 As we discuss below, arguments found only in a recitation of facts are not properly raised, and could justifiably be ignored.
17 Errors 2-3, 6-10, 13-16, and 21-29 relate to the ALJ's evidentiary rulings. Petition at 7-8, 8-9, 12-14, 15-16. Error 1 relates to the ALJ's ruling on Walker's motion requesting that the ALJ sanction American for spoliation of evidence, and error 18 relates to the ALJ's decision not to award Walker attorney's fees as such a sanction. Petition at 6, 14. Errors 5 and 11 relate to the ALJ's credibility determinations, and errors 17 and 20 relate to the ALJ's supposed failure to make specific credibility determinations. Petition at 8, 9, 14-15. Error 19 relates to Walker's contention that the ALJ committed legal error in his treatment of the burden of proof when a termination is made in connection with a RIF. Petition at 14. In his brief, Walker asserts that the burden of proof "is not increased when adverse employment action . . . occurs in the course of a [RIF]." Brief at 11. But Walker does not assert that the ALJ erred in this regard, or pursue any related argument, so we conclude that he has abandoned error 19.
18 Walker also argues that "[n]either Evans nor Bailey can claim in good faith that he relied on the investigation of Kimball (the CDDA [Career Decision Day Advisory] and LOC [disciplinary letter of commitment]) in selecting Walker for layoff." Reply at 10. This argument was raised too late. In any case, it is premised upon Walker's view that any reliance upon Kimball's investigation was flawed because "[n]either Evans nor Bailey enquired into the nature or the results of Kimball's investigation." Id. Thus, we do not understand this argument as an attempt to take issue with the ALJ's ruling that the termination was "solely" due to Walker's false hotline call. Rather, we understand it as an acknowledgment that Evans and Bailey relied upon Kimball's investigation, coupled with an argument that they should not have so relied (or that their reliance was a pretext for discrimination – but, as our discussion below explains, pretext is not what Walker needs to prove). In any case, this argument was raised too late.
19 For example, Walker argues in his brief that the ALJ's "conclusions are ultimately based on the fallacious reasoning that Kimball told the truth when she reported that Walker confessed that the hotline complaint was false." Brief at 25. Walker states in his petition's Factual Summary that "this entire case turns on Kimball's claim that Walker orally told her during this investigation that he made up the hotline complaint." Petition at 10. And Walker argues in his reply that "[t]he ALJ's findings that Walker did not make the hotline complaint in good faith . . . [and that] Complainant's protected activities were not contributing factors in his termination . . . are . . . based on the conclusion that Walker admitted that he made up the hotline complaint." Reply at 8-9.
20 Moreover, because this argument was not in the reply except by "incorporat[ion]," it is not properly presented. See Administrator v. Am. Truss, ARB No. 05-032, ALJ No. 2004-LCA-12, slip op. at 2 n.1 (ARB Feb. 28, 2007) (concluding arguments waived when included in petition only by incorporation); Powers v. Pinnacle Airlines, Inc., ARB No. 04-102, ALJ No. 2004-AIR-6, slip op. at 4 (ARB Dec. 30, 2005) (reissued Jan. 5, 2006) (dismissing appeal for repeated violations of Board's briefing rules, including persistent attempts to incorporate by reference); see also DiSilva v. DiLeonardi, 181 F.3d 865, 866 (7th Cir. 1999) (refusing to consider argument presented only through incorporation, because "adoption by reference amounts to a[n] [impermissible] self-help increase in the length of the appellate brief").
21 Although Walker argued in his petition that the ALJ abused his discretion in denying Walker's motion for sanctions against American for destruction of evidence, he does not pursue this argument in his brief or his reply. An argument raised in a petition, but not discussed in a brief, is considered abandoned and thereby waived. See, e.g., New Haven Inclusion Cases, 399 U.S. 392, 481 n.78 (1970) ("The Bondholders Committee raised the question in its petition for certiorari . . . [but] has not revived the issue in its brief, nor has it responded in its reply brief to the Government's contention that it has abandoned the claim. Accordingly, we do not consider the matter further."); see also Mitchell v. Cellone, 389 F.3d 86, 92 (3d Cir. 2004) ("Where an appellant presents an issue in his statement of issues raised on appeal, but not in the argument section of his brief, he has ‘abandoned and waived that issue on appeal'") (quoting Travitz v. Ne. Dep't ILGWU Health & Welfare Fund, 13 F.3d 704, 711 (3d Cir. 1994). In any case, we see no abuse of discretion in the ALJ's decision not to sanction American. The ALJ was told that American had destroyed the evidence prior to the ALJ's order and without knowing it would be relevant to the case. See T. 8-9.