ARB CASE NO. 04-139
ALJ CASE NO. 04-AIR-3
DATE: July 31, 2006
In the Matter of:
NICK ROUGAS,
COMPLAINANT,
v.
SOUTHEAST AIRLINES, INC.
RESPONDENT,
Appearances:
For the Complainant:
Craig L. Berman, Esq., Berman
Law Firm, P.A., St. Petersburg, Florida
For the Respondent:
Michael V. Abcarian, Esq., Epstein,
Becker, Green Wickliff & Hall, P.C., Dallas Texas
Final Decision and Order
Complainant John Nicolas "Nick"
Rougas, Jr. brought a complaint against charter airline Southeast Airlines
(SEAL) under the whistleblower provisions of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C.A. §
42121 (West 1997), and its implementing regulations, 29 C.F.R. Part 1979
(2003). After finding that Rougas had not engaged in activity protected under AIR
21, the ALJ dismissed the complaint. Decision and Order (D. & O.), filed June 30, 2004. Rougas appealed to the Administrative Review Board (Board). 29 C.F.R. §
110(a). For reasons explained below, we remand for further consideration of
whether the activities in which Rougas engaged were protected under AIR 21.
[Page 2]
Background
Rougas joined SEAL in April 1999, when SEAL owned
just one plane. T. 124-125.
By 2002, SEAL had eight planes and over 60 pilots. T. 227, 382. Each month,
SEAL pilots selected by seniority a monthly schedule of flights, reserve days,
and days off. T. 50, 129-30. Schedulers prepared the monthly schedules and
arranged coverage by reserve pilots when a scheduled pilot could not fly or
there was a schedule change. T. 131. During a month, there frequently were
changes to the originally prepared schedules. Id.
The flight hours of SEAL's pilots
were limited in various ways by FAA rules, including the "one-in-seven"
rule. T. 84, 108. Under this rule, in any period of seven consecutive days a
pilot has to be given 24 consecutive hours off. T. 84, 108, 437; 14 C.F.R. § 121.503(c).
The requirements relate to consecutive hours, not to calendar days. Thus, a pilot
who worked until 2 p.m. one day and was required to be back at work at 2:01 p.m. the next day has had 24 consecutive hours off. This rule caused some confusion
among SEAL's pilots, some of whom mistakenly believed that they were entitled
to a full calendar day off in every seven-day period. T. 83-84, 108-09; HD at 44-47.
Rougas, for example, filed a written complaint with Lusk expressing his belief
that SEAL was implementing the one-in-seven rule incorrectly. T. 137.
Rougas was a First Officer, so on
each flight he reported to the Captain serving on that flight. T. 102. In
other circumstances, Rougas and all other pilots reported to Captain David
Lusk, who became SEAL's Chief Pilot in October 2002. T. 111-12. Lusk reported
to Captain Steven Malone, SEAL's operations director, and Malone in turn
reported to the vice president of operations, and to Vice President and General
Manager Tom Balkenhol. Id.
December Events
In mid-December, Rougas fell sick with a gastro-intestinal
illness. T. 145. For the next two weeks, Rougas engaged in numerous
conversations with various personnel at SEAL relating to his illness and to his
ability to fly during this period.
[Page 3]
1. Calling
in sick, and complaining to Lusk
Rougas called in sick on Friday December 13 , 2002 and asked to be taken off the reserve list. T. 146. Because Malone
believed Rougas sometimes feigned illness on reserve days in order to referee
hockey games, Malone asked Rougas to provide a doctor's note. T. 357-59, 380,
412-13. Rougas testified that he obtained a note dated December 13, 2002, which stated that Rougas should not fly for the next two days. T. 145; CX-17. Rougas
testified that he faxed the note both to Jean Robbins, Director of Human
Resources, and to the scheduling department, and that he followed up with a
phone call to make sure that the note had been received. T. 49, 156. Malone
testified that he did not remember when or whether he himself had received this
note, but also indicated that such notes normally did not come to him. T.
146.
Rougas testified that during the
rest of that day, the scheduling department repeatedly called and urged Rougas
to reconsider his illness. As Rougas described it, "Most of th[e calls]
started off with, we're relaying this message from Malone – or, Captain Malone,
as per our company policy, your sick day ends at midnight, Captain Malone says
you really need to do this trip, could you please help us out, pretty please."
T. 146. Rougas testified that he felt harassed by these repeated calls and
that he attempted to complain by calling Lusk later that afternoon of December
13th, but that he "never got any response." T. 146-47; D. & O. at
4.
2. Back to duty?
The next day, Saturday December 14th,
Rougas told the scheduling department that he was feeling "a little bit
better" and told them: "if you need something smaller I might be able
to help you out, but I'm still questionable." T. 147. Rougas was not
needed that day, or on Sunday December 15th, but – despite the injunction in
the doctor's note that he should not fly for two days – Rougas felt that he was
on reserve these two days, apparently because the original December schedule
had scheduled him as reserve for these two days. T. 147.
3. The test flight
On Monday December 16th, the
scheduling department asked whether Rougas could test a plane in Miami by acting as co-pilot on a 45-minute test flight without passengers. Rougas reluctantly
agreed, explaining that he still didn't feel well but that he thought he could
handle a short flight with no passengers. T. 148. When Rougas reached Miami, he discovered that the plane was not yet ready to test. Id. He stayed in Miami, and finally flew the test flight when the plane was ready in the late afternoon on Wednesday
December 18th. T. 150.
[Page 4]
4. The Newark-Fort Lauderdale flight, Malone's
threat, and the call to O'Brien
In the late afternoon of December
18th, after Rougas had landed the test flight, Eric Hansen from the scheduling
department called and told him to ferry that plane to Fort Lauderdale and then,
the next day, pilot a round-trip passenger flight from Fort Lauderdale to Newark. T. 150. Rougas again was reluctant. According to Rougas, he told Hansen that he
was "still sick" and that by agreeing to fly the test flight he had "agreed
to help you out, not to stay down here and continue to fly." T. 150.
Malone then joined the call and
pressed Rougas to fly. Id. The substance of the conversation was
disputed at the hearing, but it was agreed that Malone had said that if Rougas
did not fly he would be fired. T. 151, 414. It also was agreed that Malone
quickly had "recanted" the threat. T. 151, 414. According to
Rougas, Malone refused to accept that Rougas was too sick to fly and threatened
Rougas in order to pressure him into agreeing to fly. According to Malone,
Malone simply was trying to get Rougas to state with certainty whether or not
he was too sick to fly. T. 414-15, 432. Lusk testified that, as he understood
the situation based upon conversations that day with both Malone and the
scheduling department:
[Rougas] was indicating that there were
some things he could do and some things he couldn't do, and yet, if you're ill,
you're ill. If you're too ill to fly, you're too ill to fly. It doesn't
matter what you're doing. You can't go out and do one thing and not another.
LD at 70.
At the close of his conversation
with Malone, Rougas agreed to ferry the plane to Fort Lauderdale and to fly the
Newark trip the next day. T. 151. Rougas testified that later that evening,
after landing in Fort Lauderdale, he left a voice message with Hansen and also
called Captain Jack O'Brien, SEAL's safety officer, to complain about Malone's
threat. Id. According to Rougas, he said "Jack, I shouldn't be
here, I should be home, I'm sick." Id. Also according to Rougas,
O'Brien replied, "[y]ou know these people, if you don't do the flight,
they would fire you, but don't do anything illegal." Id.
5. The refusal to fly, and the two
explanations
The next day, Thursday December 19th,
while Rougas was flying the Newark round-trip, Hansen called him with
instructions to handle two Baltimore-Aruba trips on December 21-22. Id. In order to do so, Rougas would need to catch a flight from Fort Lauderdale to Tampa that evening so that he could fly from Tampa to Baltimore the next morning (December
20th). Id. In his testimony, Rougas described his response as follows:
[Page 5]
I said, Eric, this flight coming up
here [to Newark] almost killed me. I said, I'm sick. I said, I'll do the
flight going back [to Fort Lauderdale] to get the plane back for you, because I
know you don't need pilots up here. But I said, that's it, I'm not flying
anything. I said, I haven't been able to get well, I'm still sick. No, he
says, well, it's pretty much mandatory you do this flight, you need to be, you
know, flying the flight. I said, Eric, sick is sick, I'm not doing it.
Id. Later in his testimony, Rougas described a
different reason for his reluctance to accept the Baltimore-Aruba flights. This
time, Rougas focused upon the divergence from the original schedule and upon
his belief that the one-in-seven rule would be violated if he flew. According
to Rougas:
I was reserve on Saturday [December
14th], reserve on Sunday [December 15th], Monday and Tuesday [December 16th-17th]
I was on reserve. Wednesday and Thursday [December 18th-19th] I was supposedly
off, but I was doing the test flights. Friday [December 20th], I came back
[from Newark to Fort Lauderdale to home]. I was scheduled to be on reserve,
and then they wanted me to do a flight Saturday and Sunday. And I again
expressed my concern. I said, I need a 24-hour break in there. And I said, I'm
not even legal to go, I'm not even legal to move anything, I could not – I
could bring it up there, but I'm not legal to do the flight.
T. 154.
When Rougas arrived back from Newark on the evening of December 19th, he went home. T. 153. On Friday, December 20th,
Rougas stayed home. He did not fly to Baltimore, and thus was unable to fly the
Baltimore-Aruba flights on Saturday and Sunday December 21st and 22nd. Although
he did not fly on Friday, he testified that he considered himself on reserve. T.
154.
6. Back to duty?
After not flying on Friday, Rougas
testified, on Saturday December 21st, he "was much better." He called
scheduling to tell them that and to find out "what was going on." Although
he had refused to fly Saturday's Baltimore-Aruba flight, Rougas testified that he
believed that on both Saturday and Sunday he was "on reserve, but [he] was
not called or notified of any flights." T. 155. On Monday December 23rd,
Rougas called Robbins to let her know that he had "notified [scheduling]
over the weekend that [he was] doing better, that [he could] be returned to the
line to fly [his] assigned trips as required." T. 156. Rougas also
wanted to ask Robbins "is there anything else I need to do to let them
know that I'm back." T. 156. According to Rougas, Robbins told him that there
was nothing else that he needed to do. Id. On both Monday December 23rd
and Tuesday December 24th, Rougas felt that he was on reserve, apparently because
those days had been allocated as reserve days for him on the December schedule
as originally prepared.
[Page 6]
The record does not make apparent whether any
interaction occurred between Rougas and SEAL on December 25th and 26th.
According to the original December schedule,
Rougas was supposed to pilot a flight from Baltimore on December 28th. T. 157.
On Friday December 27th, Rougas called scheduling to find out how scheduling
wanted him to get to Baltimore. Id. Rougas testified that Hansen was
surprised and replied that Rougas was "still showing … on sick leave."
Id. After consulting with Malone, Hansen called Rougas back and said
that Malone had told him that Rougas needed a doctor's note in order to be
released back into service. Id. Rougas obtained a note, apparently
backdated to December 21st, stating that he was fit to fly as of December 22 , 2002. CX-17. Rougas faxed the note to Hansen. T. 157. According to Rougas,
a copy of the note also was given to human resources. Id. Malone
confirmed that he ultimately received that second note, although he did not
remember when he received it. T. 416.
January events
Rougas did not fly any more flights for SEAL after
providing the second doctor's note. Instead, Lusk contacted him on December 31 , 2002 and instructed him to report on January 2, 2003 to Lusk's office. At the meeting on January 2, Lusk suspended Rougas for 60 days. LD at 28-30; T. 364,
368. Lusk gave Rougas a document listing four reasons:
Recent illness and problems with
documentation[;] Cooperation with Scheduling[;] Use of language on the company
radio that is inappropriate on 10-26-02 [;] Poor working attitude with other
crewmembers.
CX-3.
During his suspension, Rougas
contacted Bruce Haseltine, an inspector with the FAA who had recently been
assigned to monitor SEAL. T. 164.
He spoke repeatedly to Haseltine about Malone's threat. HD at 9, 40, 47. Based
on this information, but aware that there was "some discrepancy"
between what Rougas had said and what he had heard from others at SEAL,
Haseltine ultimately sent a Letter of Investigation to SEAL regarding the
allegation that SEAL had required a pilot to fly while he was ill. HD at 9
[Page 7]
and Exhibit 2.
Haseltine stated that although his knowledge of SEAL was based in part on
information from Rougas, he did not inform SEAL that Rougas was one of his
sources. HD at 61.
February events
In early February, Rougas was
called back early from his suspension. T. 374. Rougas testified that a day or
two after he was called back, Malone told him that "we know who's been
talking to the FAA, and we're going to fire their a--, and then we're going to
sue them for defamation of character." T. 171. According to Rougas,
Malone had made similar threats throughout his tenure as operations director.
T. 171-72. As Haseltine confirmed, Rougas again contacted Haseltine to inform
him about this threat. HD at 47. Haseltine said that the FAA ultimately did
not take any action with regard to Malone's alleged statement, but did not give
any further details. HD at 48.
At around the same time, it had
been determined that Lusk would replace Malone as operations director and
Malone would return to his previous position as a line pilot. T. 378-79. A
day or two later, when Rougas went to Robbins to arrange for the return of his
ID badge, he spoke with her about Malone's return to the line. T. 172. Rougas
told Robbins that he wished Malone luck, but that he did not want to fly with
him. T. 174, 279. Rougas also said that he knew of several people who had
indicated to him that they also would not wish to fly with Malone. Id.
An administrative assistant, Vicky
Vogel, overheard the conversation between Rougas and Robbins. T. 287-88, 426.
After work that evening she told Malone what she had heard. Id. Malone
became "mad" and "disgusted." T. 385, 439. Later that
evening, Malone called Rougas and told him to report to his office the next
morning. T. 385. Malone then called Lusk and told him that "there had
been an incident in [the HR] office regarding some … negative attitudes coming
from Mr. Rougas, and that … the next day … there was probably going to be a
termination." LD at 61-62; T. 385. The next morning, Malone informed
Rougas that SEAL had decided to terminate his employment. T. 387.
[Page 8]
Case History
Rougas filed a complaint with OSHA
on March 31, 2003. RX-5 (letter from OSHA, dated September 30, 2003). After an investigation, OSHA determined that "it is reasonable to believe that
[SEAL] has not violated [AIR 21]." RX-5 at 1. OSHA explained that "Complainant
alleges he was terminated after Malone was told about the comment" that
Rougas made to Robbins, but that "there is no evidence that anyone mentioned
issues related to safety or that the comment was considered activity protected
under the Act." RX-5 at 2, 3. OSHA does not appear to have investigated
whether any other activity engaged in by Rougas might have constituted
protected activity.
Rougas requested a hearing from an
ALJ, and one was held on March 30-31, 2004. The ALJ concluded that Rougas had
not engaged in protected activity, and dismissed the complaint. D. & O. at
23. Rougas petitioned for review by the Board.
We granted the petition and issued a briefing schedule. Both Rougas and SEAL
filed briefs.
Issue Presented
Did the ALJ err in concluding that Rougas
did not engage in any protected activity before SEAL terminated his employment?
Jurisdiction
and Standard of Review
The Secretary of Labor has
delegated to the Board her authority to review an ALJ's recommended decision in
cases arising under AIR 21. See 49 U.S.C.A. § 42121(b)(3)
(West 1997) (granting authority to the Secretary of Labor to issue final
decisions in AIR 21 cases); Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating Secretary's authority to review AIR 21 cases and issue final
decisions); 29 C.F.R. § 1979.110 (allowing appeals to the Board in AIR 21
cases).
[Page 9]
In reviewing an ALJ's conclusions
of law, the Board, as the Secretary's designee, acts with "all the powers
[she] would have in making the initial decision . . . ." 5 U.S.C.A. §
557(b) (West 1996). Therefore, we review questions of law de novo, and review
the ALJ's factual findings under the substantial evidence standard. 29 C.F.R.
1979.110(b). Substantial evidence is that which is "more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." Universal Camera Corp. v. NLRB,
340 U.S. 474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938); see Henrich v. Ecolab, Inc., ARB No.
05-030, ALJ No. 04-SOX-51, slip op. at 7 (ARB June 29, 2006) (substantial evidence standard). In weighing evidence, we give great deference to
credibility findings that rest explicitly on an "evaluation" of the
demeanor of a witness. Henrich, slip op. at 11-12 & n.13; see
Stauffer v. Wal-Mart Stores, Inc., ARB No. 00-062, ALJ No. 99-STA-21,
slip op. at 9 (ARB July 31, 2001) (quoting NLRB v. Cutting, Inc., 701
F.2d 659, 663 (7th Cir. 1983)).
Although in assessing the
substantiality of evidence we "must take into account whatever in the
record fairly detracts from its weight," we must uphold an ALJ's factual
finding that is supported by substantial evidence even if there is also
substantial evidence for the other party, and even if we "would
justifiably have made a different choice had the matter been before us de novo."
Universal Camera, 340 U.S. at 488; Henrich, slip op. at 7.
Governing Law
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 covered employer subjected him to an
unfavorable personnel action because he engaged in protected activity. 49
U.S.C.A. § 42121(a) (West 1997); Peck v. Safe Air
International, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3, slip op at 6-10
(explaining "scope of coverage, procedures, and burdens of proof under AIR 21").
As relevant here, an employee has
engaged in protected activity when the employee has "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." Id. at § 42121(a)(1); see Peck,
slip op at 6-10.
In order for the provision of "information"
to constitute protected activity, the information must be "specific in relation
to a given practice, condition, directive or event," and the complainant
must reasonably believe "in the existence of a violation." Peck,
slip op. at 13. In addition, the employee does not "provide[] information"
unless he actually expresses his concerns. See Henrich, slip op. at 11
(for activity to be protected under Sarbanes Oxley Act (SOX), employee must
actually express concern); Knox v. United States Dep't of the Interior,
ARB No. 06-089, ALJ No. 01-CAA-3, slip op. at 5
[Page 10]
(ARB Apr. 28, 2006) (for
activity to be protected under Clean Air Act, employee must actually express
concern).
Analysis
Rougas argues that the ALJ erred in various
respects in finding that he did not engage in any protected activity.
The ALJ's finding that Rougas "never
communicated to Respondent" on December 18th that he was too ill
to fly
Rougas argues that the ALJ erred in
finding that he did not inform Malone during the December 18 call that he was
too ill to fly the next day. Recognizing that this finding rested at least in
part upon the ALJ's finding that Malone was more credible than Rougas regarding
these events, Rougas further argues that the ALJ erred in finding credible "certain
witnesses" because those findings were "contradicted by the conflicts
in testimony" and because the ALJ made those findings "without any
rationale." CB at 22. Specifically, Rougas argues that "Rougas was
unequivocal" when he "told Eric Hansen that he was too sick to fly,"
and that "it is logical to believe that Malone intervened because Rougas
said he was too ill." CB at 25, 24.
Rougas does not, however, offer any reason why
we should overturn the ALJ's finding that he did not communicate to Malone that
he was too ill to fly. While the ALJ did not provide a demeanor-based
rationale for his choice to believe Malone rather than Rougas regarding the
December 18 call, he did provide a rationale for finding that the testimony
given by Rougas was "only partially credible" and was "entitled
to less probative weight." Id. Specifically, the ALJ found that
the testimony given by Rougas was "called into question by the various
inconsistencies between his testimony and the testimony of … credible
witnesses," including Malone, whose "testimony regarding Complainant's
sick days in December 2002 exposes more inconsistencies in Complainant's
testimony." D. & O. at 20.
[Page 11]
Moreover, however "unequivocal"
he may have been with the schedulers, Rougas does not argue that he actually told
Malone that he was too ill to fly the next day. Rougas argues that Malone
must have been aware he was too ill, because Rougas had so informed the
scheduling department and Malone had then joined the call to ask him to rethink
his position. But Rougas appears to admit that, in talking to Malone, he did
back down from his initial position that he was too ill to fly.
Thus even if Rougas did tell the scheduling department that he was too ill to
fly, Rougas does not give us a reason to disbelieve the ALJ's conclusion that
Rougas did not tell Malone that he was too ill to fly. We conclude that
because Rougas spoke directly to Malone, yet did not state during his
conversation with Malone that he was too ill to fly, any initial statement
Rougas may have made to the scheduling department did not constitute
notification to Malone.
Therefore, we find that substantial evidence supports the ALJ's finding that
Rougas did not communicate to Malone on December 18 that he was too ill to fly
the next day.
Perhaps because Malone was SEAL's
chief of operations, and because Rougas actually spoke with Malone after
speaking with the scheduling department, the ALJ also concluded that Rougas did
not notify SEAL that he was too ill to fly. Rougas argues that he "did
not withdraw his report that he was sick [because] that night he spoke
with O'Brien." CB at 25. We note that O'Brien did not supervise Lusk, so
we conclude that Malone, who did supervise Lusk, also was senior to O'Brien.
T. 53. In this situation, where it seems that Rougas made inconsistent reports
to different personnel at various levels of SEAL, we do not think we can
conclude that there was not substantial evidence for the ALJ's decision to rely
upon the conversation between Rougas and Malone, the individual who represented
the highest level at SEAL, rather than upon the conversation between Rougas and
O'Brien. Relying upon the conversation with O'Brien, which occurred later in
time and took place with SEAL's Safety Officer, might also have been a
justifiable choice. But, as we have explained, where there is substantial
evidence on both
[Page 12]
sides we will not disturb the finding of the ALJ. Therefore, we
conclude that substantial evidence supports the ALJ's conclusion that Rougas
did not tell "Respondent" that he was too ill to fly.
The ALJ's decision to analyze
only two incidents
Rougas also argues that the ALJ
erred in focusing only on the call with Malone on December 18, 2002 (the Malone
call) and the conversation with Robbins on February 13, 2003 (the Robbins
conversation). While he does not contest the ALJ's conclusion that the Robbins
conversation did not itself constitute protected activity, Rougas argues that the
ALJ "ignore[d] other instances of protected activity in the record,
including but not limited to Rougas' communications with Eric Hansen, Bruce
Haseltine, Steve Malone, Jack O'Brien, and David Lusk." CB at 22. For
example, Rougas argues that he engaged in protected activity when he "objected
to flying sick on several dates," "reported Malone's illegal
directive to Jack O'Brien," and "refused to work the Baltimore-Aruba
flights scheduled for December 21-22, 2002." CB at 23. Rougas further
argues that he engaged in protected activity by reporting Malone's threat to
Lusk on January 2, 2003 and by making "several protected reports to
Haseltine concerning improper conduct by SEAL, including the threat made [by
Malone] on December 18, 2002." CB at 26, 27.
SEAL does not take issue with the
contention that the ALJ analyzed only the Malone call and the Robbins
conversation,
and we agree that the most natural reading of the opinion indicates that it
analyzes only those two incidents. The ALJ's opinion contained only two
paragraphs analyzing the possibility of protected activity. In the first paragraph,
entitled "The December Suspension," the ALJ found that Malone's
testimony was "substantially more credible than that of Complainant
concerning the events in December 2002," and concluded that Rougas "did
not engage in protected activity in
[Page 13]
December 2002." D. & O. at
21 (emphasis added). But the ALJ also noted that "Captain Conover, who
flew with Complainant on the flight in question, denied that Complainant
appeared to be ill or claimed to be ill."
D. & O. at 22 (emphasis added). The ALJ's use of the phrase "the
flight in question" suggests strongly that he intended to analyze only the
communications with Malone regarding the flight on December 19, and not any of
the other communications made by Rougas. Therefore, we read this paragraph to
indicate that the ALJ found only that Rougas did not tell Malone, on
December 18, that he was too ill to fly the next day. Because this paragraph
does not analyze the communications Rougas made prior to and during December to
Hansen, Lusk, O'Brien, and the FAA, we conclude that the paragraph did not
determine whether any of these communications were protected activities.
Similarly, in his second paragraph
of analysis, entitled "The February Termination," the ALJ concluded
that Rougas "did not engage in protected activity in February 2003."
D. & O. at 22 (emphasis added). But the ALJ explained that Rougas "asserts
he expressed safety concerns to Ms. Robbins," and that he "simply
did not find Complainant's version of events to be credible," because "according
to the credible testimony of Ms. Robbins and Ms. Vogel, Complainant's comments
did not have anything to do with safety." D. & O. at 22 (emphasis
added). Thus, it appears that the ALJ's broad conclusion that Rougas did not
engage in protected activity "in February 2003" was based solely upon
his finding that Rougas did not tell Robbins about any safety concerns during
their conversation on February 13, 2003. Therefore, we read this paragraph to
indicate that the ALJ determined only that the Robbins conversation was not
protected activity. Because this paragraph does not analyze the communications
Rougas made in January and February to Lusk and to the FAA, we conclude that
the ALJ did not determine whether any of these communications were protected
activities.
Determining whether any of a
complainant's activities were protected is an essential component of an ALJ's
task. Therefore, we agree with Rougas that the ALJ erred in not analyzing
whether the activities listed by Rougas in his post-hearing brief – the report
to Lusk about Malone's purported disregard for the one-in-seven rule; the
reports to Lusk and O'Brien about Malone's threat; the multiple reports to the
FAA about Malone; and the various communications with the schedulers (the
notifications that
[Page 14]
Rougas was too ill to fly, the request to be removed from
the reserve list, and the refusal to fly the Baltimore-Aruba flights)
– were protected activities.
The determination whether any of those
activities were protected depends upon facts that have yet to be found. For
this reason, we prefer to allow the ALJ to determine in the first instance
whether any of those activities were protected.
In so doing, the ALJ should apply the governing law as we have stated it above
– i.e., in order to conclude that an activity was protected, the ALJ must find (1)
that Rougas genuinely believed there was or would be a violation or alleged
violation of an FAA order, regulation or standard, or a Federal law relating to
air carrier safety; (2) that his concern was objectively reasonable in the
circumstances; and (3) that Rougas expressed his concern in a manner that was "specific"
with respect to the "practice, condition, directive or event" giving
rise to the concern.
[Page 15]
If the ALJ determines that any
activity in which Rougas engaged did constitute protected activity, then he
should proceed to determine whether such protected activity contributed to SEAL's
termination decision.
Conclusion
Rougas did not take exception to the
ALJ's conclusion that he did not engage in protected activity during the
Robbins conversation, and substantial evidence supports the ALJ's conclusion that
Rougas did not engage in protected activity during the December 18, 2002 call
with Malone because he did not tell Malone, and thus did not tell SEAL, that he
was too ill to fly. But because the ALJ did not determine whether various other
activities in which Rougas engaged were protected activities, and because, as
we have explained, those determinations should be made by the ALJ, we REMAND
the complaint for further proceedings consistent with this opinion.
SO ORDERED.
A.
Louise Oliver
Administrative
Appeals Judge
M. Cynthia Douglass
Chief Administrative Appeals
Judge
