SEAL Did Not Take Adverse Action Against Hirst.
As we discussed above, then Director of Operations Malone discharged Hirst on Sunday, September 29, 2002. Nevertheless, on either Monday, September 30, or Tuesday, October 1, Chief Pilot Lusk met with SEAL President Thomas Kaolfenbach and Malone to discuss what had happened. Lusk testified that he explained to Kaolfenbach and Malone that Hirst had a "perfect right" to question whether the FAA had approved the new weight limit. Furthermore, they agreed that the company had not suffered any harm in having to bring in another pilot when Hirst refused to fly. And, according to Lusk, they understood how there could have been confusion about the weight limit. As a result, they decided that SEAL would retain Hirst as a pilot. Tr. 231-232. Lusk then called Hirst on Tuesday, the 1st, and left a message for Hirst to call back. When Hirst returned the call, Lusk told him that "we've kind of put our heads together and we understand that there was a lot of confusion about the issue" but "I just need you to come down and pick up your ID and your manuals and get back on the schedule and let's –you know, let's get this thing over." Tr. 235. Lusk testified that Hirst informed him that he could not return to SEAL because he had another job. Lusk replied that he wanted Hirst to keep his job at SEAL and that all he had to do was "pick up your stuff and get back on schedule." But Hirst again said that he could not do that. Tr. 235-236.
[Page 12]
Hirst's version of this October 1st phone conversation is essentially the same as Lusk's. Tr. 420-422. Nor does Hirst contest the fact that he received Lusk's October 3rd letter (RX2), albeit on October 11, confirming that SEAL had decided to continue his employment. Hirst also acknowledges that SEAL paid him through October 15. Tr. 422-425; CX 13.
These facts demonstrate that SEAL rescinded Malone's decision to discharge Hirst and that SEAL reinstated him as a pilot. They also demonstrate that Malone's decision did not constitute an adverse action. When Lusk, Malone, and Kaolfenbach met to discuss what had happened on September 29, they quickly agreed that Hirst had justifiably challenged whether the FAA had approved the increased weight limit. They immediately decided to rescind Malone's decision, and Lusk promptly called Hirst to inform him that he was still a SEAL pilot. Lusk then confirmed that fact in writing though he mailed the October 3rd letter to a wrong address. Moreover, Hirst suffered no economic loss as a result of Malone's decision. And Hirst presented no evidence that would entitle him to compensatory damages.
Under these circumstances, we find that a reasonable SEAL employee would necessarily conclude that though Malone acted hastily and retaliated against Hirst for refusing to pilot Flight 556, SEAL officials, including Malone, quickly recognized this mistake, promptly corrected it, immediately informed Hirst that he was still employed, confirmed that fact in writing, and made sure that Hirst suffered no economic loss. A reasonable worker would see that SEAL corrected its mistake within two days and that Hirst, at most, suffered only temporary unhappiness. In the wake of Malone's decision to discharge Hirst, SEAL's actions certainly sent a message that management will respect and protect employees who are concerned with safety. That, of course, is the right message. Therefore, based solely on these particular facts, we find that a reasonable SEAL employee would not be afraid to make management aware of safety concerns, or, in White terminology, would not be "dissuaded" from engaging in protected activity.
Conclusion
Thus, though Malone discharged Hirst because he engaged in activity that AIR 21 protects, that action was not materially adverse. Absent proof by a preponderance of the evidence that SEAL took adverse action against him, Hirst's claim must fail. Therefore, we reverse the ALJ's recommended decisions and orders and DENY Hirst's complaint.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 49 U.S.C.A. § 42121 (West Supp. 2005). The regulations implementing AIR 21 are found at 29 C.F.R. Part 1979 (2006).
2 CX 27 is SEAL's transcript of conversations that Hirst taped on September 29, 2002.
3 AIR 21 whistleblowers file complaints with OSHA. OSHA then investigates the complaint. If it concludes that reasonable cause exists that the employer violated the Act, it will issue a preliminary order providing relief to the complainant. If OSHA concludes that no violation has occurred, it so notifies the parties. 29 C.F.R. §§ 1979.103, 104, 105.
4 See 29 C.F.R. § 1979.106.
5 See Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1979.110.
6 29 C.F.R. § 1979.110(b).
7 Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
8 Universal Camera, 340 U.S. at 488.
9 Rooks v. Planet Airways, Inc., ARB No. 04-092, ALJ No. 2003-AIR-35, slip op. at 4 (ARB June 29, 2006).
10 49 U.S.C.A. § 42121(a).
11 Id. An employer also violates AIR 21 if it intimidates, threatens, restrains, coerces, or blacklists an employee because of protected activity. 29 C.F.R. § 1979.102(b). But Hirst claimed, argued, and sought to prove only that SEAL discharged him.
12 See 49 U.S.C.A. §§ 42121(a), (b)(2)(B)(i); Clark v. Pace Airlines, Inc., ARB No. 04-150, ALJ No. 2003-AIR-28, slip op. at 11 (ARB Nov. 30, 2006).
13 See 49 U.S.C.A. §§ 42121(b)(2)(B)(ii), (3)(B).
14 14 C.F.R. § 121.189 (2006) reads: "No person operating a turbine engine powered airplane may take off that airplane at a weight greater than that listed in the Airplane Flight Manual for the elevation of the airport and for the ambient temperature existing at takeoff." This regulation appears in the record as CX 23.
15 Malone actually told Hirst, "Bring your ID and manuals when you show up [for the meeting on the next day]." Tr. 392.
16 Reply Brief at 5-7.
17 D. & O. at 11.
18 Id. at 14.
19 See Ford Motor Co. v EEOC, 458 U.S. 219, 241 (1982); Hobby v. Georgia Power Co., ARB No. 98-166, ALJ No. 1990-ERA-30, slip op. at 13 (ARB Feb. 9, 2001); Blackburn v. Metric Constructors, Inc., 86-ERA-4, slip op. at 13 (Sec'y Oct. 30, 1991).
20 See 49 U.S.C.A. § 42121(b)(3)(B)(ii).
21 Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996); Griffith v. Wackenhut Corp., ARB No. 98-067, ALJ No. 97-ERA-52, slip op. at 12 (ARB Feb. 29, 2000) (approving Smart and other cases that "make the unexceptionable point that personnel actions that cause the employee only temporary unhappiness do not have an adverse effect on compensation, terms, conditions or privileges of employment"); cf. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999) (the American with Disabilities Act, like Title VII, is neither a "general civility code" nor a statute making actionable ordinary tribulations of the workplace).
22 See Jenkins v. United States Envtl Prot. Agency, ARB No. 98-146, ALJ No. 1988-SWD-2, slip op. at 20 (ARB Feb. 28, 2003); see also, e.g., Calhoun v. United Parcel Serv., ARB No. 00-026, ALJ No. 1999-STA-7 (ARB Nov. 27, 2002) (holding that a supervisor's criticism does not constitute an adverse action); Ilgenfritz v. United States Coast Guard, ARB No. 99-066, ALJ No. 1999-WPC-3, slip op. at 8 (ARB Aug. 28, 2001) (holding that a negative performance evaluation, absent tangible job consequences, is not an adverse action); Shelton v. Oak Ridge Nat'l Labs., ARB No. 98-100, ALJ No. 1995-CAA-19, slip op. at 6-7 (ARB Mar. 30, 2001) (holding that in the absence of a tangible job consequence, a verbal reprimand and accompanying disciplinary memo are not adverse actions).
But a whistleblower bringing a hostile work environment claim is not required to prove an "economic" or "tangible" job detriment such as that resulting from discharge, failure to hire, or reassignment to an inferior position. A hostile work environment complainant is required to prove: 1) protected activity; 2) intentional harassment related to that activity; 3) harassment sufficiently severe or pervasive so as to alter the conditions of employment and to create an abusive working environment; and 4) harassment that would have detrimentally affected a reasonable person and did detrimentally affect the complainant. Jenkins, slip op. at 43 (citing Williams v. Mason & Hanger Corp., ARB No. 98-030, ALJ Nos. 97-ERA-14 et al., slip op. at 13 (ARB Nov. 13, 2002)).
23 42 U.S.C.A. § 2000e, et seq. See Shelton, slip op. at 10.
24 "It shall be an unlawful employment practice for an employer to discriminate against" an employee or job applicant because that person "opposed any practice" that Title VII forbids or "made a charge, testified, assisted, or participated in any manner" in a Title VII investigation, proceeding, or hearing. 42 U.S.C.A. § 2000e-3(a).
25 --- U.S. ----, 126 S. Ct. 2405 (June 22, 2006).
26 In doing so, the Court rejected arguments that the anti-retaliation provision should be construed together (in pari materia) with the Title VII's substantive anti-discrimination provision. That provision makes it unlawful for an employer, because of an individual's race, color, religion, sex, or national origin, to "fail or refuse to hire or to discharge" or otherwise discriminate against any individual with respect to that person's "compensation, terms, conditions, or privileges of employment" or "deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" because of race, color, religion, sex, or national origin. 42 U.S.C.A. § 2000e-2(a). (emphasis added). The Court held, therefore, that because the language of the anti-retaliation section does not contain the substantive section's limiting words, italicized above, the former is not limited to workplace-related or employment-related retaliatory acts or harm. 126 S. Ct. at 2411-2414.
The AIR 21 whistleblower protection provision, however, does contain language limiting its scope to employment related retaliation. "No air carrier or contractor or subcontractor of an air carrier may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment . . . ." 49 U.S.C.A. § 42121(a) (emphasis added). And most of the other whistleblower protection provisions that the Secretary of Labor adjudicates contain similar limitations. See, e.g., Clean Air Act, 42 U.S.C.A. § 7622(a) (West 2003) ("No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment . . . ."); Energy Reorganization Act of 1974, 42 U.S.C.A. § 5851(a)(1)(West 1995) ("No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment . . . ."); Surface Transportation Assistance Act, 49 U.S.C.A. § 31105(a)(1)(West 1997) ("A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment . . . ."). Three whistleblower protection provisions that the Secretary adjudicates do not contain the "compensation, terms, conditions, and privileges" language. See Comprehensive Environmental Response, Compensation & Liability Act, 42 U.S.C.A. § 9610(a)(West 2005) ("No person shall fire or in any other way discriminate against, or cause to be fired or discriminated against, any employee . . . ."); Solid Waste Disposal Act, 42 U.S.C.A. § 6971(a)(West 2003) (same); Water Pollution Prevention and Control Act, 33 U.S.C.A. § 1367(a) (West 2001)(same). Even so, the regulations that implement those statutes limit their scope to "compensation, terms, conditions, or privileges of employment." See 29 C.F.R. § 24.2(a).
27 126 S. Ct. at 2409. Cases from the Fifth and Ninth Circuits demonstrate the extreme ends of the circuit split as to how harmful the adverse action must be to fall within the anti-retaliation provision. Compare, e.g., Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997) (holding that Title VII addresses only "ultimate employment decisions" such as hiring, granting leave, discharging, promoting and compensating), with Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000) (holding that adverse action is one "reasonably likely to deter employees from engaging in protected activity").
28 Even though the events herein occurred before the Court decided White, when the United States Supreme Court decides a case and applies a new rule of law to the parties before it, other courts, and this Board, must apply the new rule retroactively to parties before them. See Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993).