USDOL/OALJ: AIR21 Whistleblower Digest

In Hirst v. Southeast Airlines, 2003-AIR-47 (ALJ May 26, 2004), the ALJ found that the Complainant was discharged in violation of the employee protection provision of AIR21 when he called the Respondent's dispatcher to question an increase in the maximum gross weight of the aircraft he was to fly from 105,000 to 108,000 pounds. Complainant was referred to a Captain who assured the Complainant that he was confident that the increase was correct and in compliance with FAA regulations. Complainant requested that appropriate written documentation be faxed to him, but the Captain directed Complainant to fly the aircraft. Complainant refused and the Captain directed Complainant to report to Respondent's offices the next day to turn in his manuals and identification. Although the Respondent disputed whether the Complainant was thereafter discharged, the ALJ found that the record established that he was. The ALJ's decision contains a discussion of the statutory history of the whistleblower provision of AIR21 and of the inherent conflict of the interests protected by that law with an airline management's goals. The ALJ wrote:

   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.
   Federal law confers great responsibility on a pilot in command, and commensurate authority. "The pilot in 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 ....

PROCEDURE

POST-HEARING AMENDMENT OF PLEADINGS DENIED WHERE IT WAS BASED ON DIFFERENT FACTS AND OCCURRENCES THAN THE MATTERS IN LITIGATION

In Hoffman v. NetJets Aviation, Inc., ARB No. 06-141, ALJ No. 2005-AIR-26 (ARB July 22, 2008), the ARB found that the presiding ALJ did not abuse his discretion in denying the Complainant's post-hearing motion to supplement the pleadings. The ARB stated that "[w]hile the ALJ rules allow for liberal amendment under 29 C.F.R. § 18.5(e), [the Complainant] has identified a post-hearing adverse action arising under a different set of facts and occurrences than the matters in litigation. The post-hearing consideration of the new evidence would prejudice [the Respondent]."

FINAL AIR21 REGULATIONS

On March 21, 2003, the Occupational Safety and Health Administration published a Final Rule implementing the whistleblower provision of AIR21. 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). Among the changes found in the Final Rule are (1) clarifications in the definitions section, (2) a clarification of the complainant's burden of proof, (3) a change to lengthen the time provided for a respondent to file a response with OSHA, (4) a clarification that an order of reinstatement is not appropriate when it is established that the complainant is a security risk (whether or not the information is obtained after the complainant's discharge), (5) a clarification that a respondent may seek attorneys fees incurred during the OSHA investigation (up to $1,000) in a hearing before an ALJ if it alleges that the complaint was frivolous or brought in bad faith, and (6) a provision that appeals to the ARB are not a matter of right, but accepted at the discretion of the ARB.

ALJ’S AUTHORITY TO REQUIRE COMPLAINANT TO CLEARLY ARTICULATE HER CASE

When confronted with a prolix, rambling complaint, an ALJ has the authority to require the complainant to produce a clear articulation of her case. Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int’l Union (PACE), ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007).

SERVICE OF ALJ BY FAX AND REGULAR MAIL, BUT COMPLAINANT ONLY BY REGULAR MAIL IS NOT SANCTIONABLE, AND IS NOT EX PARTE COMMUNICATION

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int’l Union (PACE), ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), the ARB denied the Complainant’s motion to sanction a Respondent and its attorney for allegedly engaging in ex parte communications when it filed a motion to dismiss with the ALJ by fax and regular mail, while serving the Complainant only by regular mail. The ARB found that the Complainant had pointed to no applicable authority to establish that an ex parte communication occurs merely because the same type of service was not used on all parties.

DUE PROCESS; FAILURE TO PROVIDE ADEQUATE OPPORTUNITY FOR ALL NAMED RESPONDENTS TO RESPOND TO COMPLAINANT’S FILING BASED ON MISTAKEN BELIEF THAT THEY HAD BEEN DISCHARGED AS RESPONDENTS

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int’l Union (PACE), ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), the Complainant named ten organizations and seven individuals as respondents in her AIR21, SOX and environmental whistleblower complaint. OSHA concluded that the complaint related factually only to PACE (which had not been named as a respondent), dismissed the named Respondents, and seemingly substituted PACE as the Respondent. However, the OSHA decision was mailed to a PACE Local, and not to PACE itself. After a hearing had been requested, the ALJ issued an order directing PACE (but not the originally named Respondents) to respond to any pleadings filed by the Complainant. It was clear that the ALJ treated PACE as the sole Respondent, although she served the Local. The ALJ ultimately concluded that the Complainant’s complaint did not state a claim upon which relief could be granted. When the appeal was docketed before the ARB, the issue of whether all of the named parties were properly served became apparent when PACE filed a letter stating that it had not been served with the ARB’s briefing order. The ARB concluded that (together with some analytical flaws in the ALJ’s analysis) the cumulative impact of the failure to permit all named respondents to have an opportunity to respond to the Complainant’s pleadings necessitated a remand. The Board stated that “[w]e think it preferable to avoid any due process issue by deferring any ruling on whether the complaint states a claim until an opportunity to respond has been extended to all those respondents who remain in the action.” Slip op. at 7. The ARB observed that the ALJ may have believed that OSHA’s dismissal of the originally named Respondents had eliminated them from the proceeding. This was a mistake because upon the filing of a hearing request, the OSHA determination became inoperative.

SCOPE OF ARB REVIEW; ARGUMENT NOT RAISED IN PETITION FOR REVIEW IS WAIVED

An argument not raised in a petition for review of an ALJ's AIR21 whistleblower decision is waived before the ARB. Majali v. Airtran Airlines, ARB No. 04-163, ALJ No. 2003-AIR-45 (ARB Oct. 31, 2007) (ALJ had found that an informal suspension was not adverse action; Complainant did not contest that finding in his initial brief before the ARB, and first addressed it in a reply brief).

SCOPE OF ARB REVIEW; ARGUMENT NOT MADE BEFORE THE ALJ

An argument not made before the ALJ cannot be raised for the first time on appeal to the ARB . Majali v. Airtran Airlines, ARB No. 04-163, ALJ No. 2003-AIR-45 (ARB Oct. 31, 2007) (Complainant first raised on appeal a contention that a letter sent by one of Respondent's managers to an FAA investigator urging sanctions against the Complainant was an adverse action; ARB found that the argument had been forfeited because it had not been made before the ALJ).

SCOPE OF REVIEW; FAILURE OF RESPONDENT TO FILE EXCEPTIONS TO ALJ'S ATTORNEY FEE AWARD

Under the AIR21 regulations, failure of the Respondent to file exceptions to the ALJ's attorney fee award renders the award final and unreviewable by the ARB or Court of Appeals. Vieques Air Link, Inc. v. USDOL, No. 05-01278 (1st Cir. Feb. 2, 2006) (per curiam) (available at 2006 WL 247886) (case below ARB No. 04-021, ALJ No. 2003-AIR-10).

ARB REVIEW; DELEGATION UNDER SECRETARY'S ORDER 2-96, ¶ 4.c.(39)

In Bodine v. International Total Services, 2001-AIR-4 (ALJ Nov. 29, 2001), the ALJ concluded that under Secretary's Order 2-96, ¶ 4.c.(39), 61 Fed. Reg. 19978 (1996), the Administrative Review Board has review authority delegated from the Secretary of Labor for laws, such as AIR21, which by statute provide for final decisions by the Secretary of Labor upon review of recommended decisions issued by ALJs. Noting that regulations had not yet been promulgated by the Department of Labor to implement the AIR21 whistleblower provision, the ALJ forwarded the administrative file to the ARB for review.

ARB REVIEW; MOTION FOR SUMMARY REVERSAL

In Powers v. Pinnacle Airlines, Inc., ARB No. 04-035, ALJ No. 2003-AIR-12 (ARB Mar. 31, 2004), the ARB denied the Complainant's motion for summary reversal of the ALJ's recommended decision, where, although it was clear that the Complainant disagreed with the ALJ's recommendation, she failed to establish that the ALJ's decision was so obviously incorrect that further briefing would not benefit the Board. The ARB also denied the Complainant's motion for default judgment on her motion for summary reversal because the Respondent had not responded to her motion. The ARB stated that it would have sought the Respondent's position if it thought it would have been helpful, but that in the instant case it had not been necessary to request a response. The Board observed in this regard that it had not adopted as Board procedure either 29 C.F.R. § 18.6(a), 18.5(b) or FRCP 3-7, 10-12, and 55.

FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED; BELL ATLANTIC/FRCP 12(b)(6) STANDARD

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int’l Union (PACE), ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), the ARB held that proper standard for determining whether a whistleblower complaint states a claim is FRCP 12(b)(6). The ARB noted that the Supreme Court had recently clarified 12(b)(6) in Bell Atlantic Corp. v. Twombly, 550 U.S. __, 127 S.Ct. 1955, 1964-65 (2007). Thus, a complaint does not need detailed factual allegations, but it must provide factual allegations that indicate the grounds for the complaint. While the standard remains very charitable, a 12(b)(6) dismissal is no longer reserved for cases in which the allegations of the complaint itself demonstrate the lack of a valid claim. Rather, the complaint itself must contain enough factual matter to suggest that the alleged violation is plausible. Because a complainant does not need to prove her factual allegations in response to a 12(b)(6) motion, a decision that the complaint states a claim does not mean that the complainant has proven the elements of her claim.

AUTHORITY OF ALJ ON HER OWN MOTION TO ORDER COMPLAINANT TO SHOW CAUSE WHY COMPLAINT SHOULD NOT BE DISMISSED FOR FAILURE TO STATE A CAUSE OF ACTION

In Powers v. Paper, Allied-Industrial, Chemical & Energy Workers Int'l Union (PACE), 2004-AIR-19 (ALJ May 7, 2004), the ALJ issued a preliminary order and order to show cause directing the Complainant to show cause why her complaint should not be dismissed for failure to state a cause of action under the whistleblower provisions of AIR21, the SOX, and the environmental statutes. In response, the Complainant alleged that the ALJ must first issue a notice of hearing, and only thereafter, on motion of a party, consider whether a summary disposition is appropriate. The ALJ, referencing caselaw interpreting FRCP 12(b)(6), found that "it has been uniformly held that a Court may dismiss a claim for failure to state a claim upon which relief can be granted when it is patently obvious that the claimant could not prevail on the facts as alleged in the complaint. Courts have the inherent power to take such action, or to find that a complaint is frivolous on its face. See, Koch v. Mirza, 869 F.Supp. 1031 (W.D.N.Y. 1994); Washington Petroleum and Supply Co. v. Girard Bank, 629 F.Supp. 1224 (M.D.Pa. 1983); Johnson v. Baskerville, 568 F.Supp. 853 (E.D.Va. 1983); Cook v. Bates, 92 F.R.D. 119 (S.D.N.Y. 1981)." The ALJ noted that the relevant inquiry is whether, assuming that all the Complainant's allegations are true, she has stated a cause of action upon which relief can be granted. The ALJ also noted that she had liberally construed the complaint and not held the pro se litigant to the same standard as would be required of an attorney. The Complainant's 36 page complaint, however, only raised issues over which DOL OALJ has no jurisdiction, such as disputes with her union over interpretation of a CBA or a union's duty of representation, whether FAA rules had been violated, the activities of the NLRB, and constitutional rights. The one potential complaint over which DOL OALJ jurisdiction might attach showed no adverse employment action with tangible consequences, it being merely an allegation of a verbal threat of a written warning. The ALJ, therefore, dismissed the complaint.

CORRECTION OF CLERICAL ERROR IN ALJ DECISION AFTER REQUEST FOR ARB REVIEW ALREADY FILED; APPLICABILITY OF FRCP 60(a)

In Negron v. Vieques Air Link, Inc., ARB No. 04-021, ALJ No. 2003-AIR-10 (ARB Jan. 8, 2004), the ARB addressed how an ALJ may correct a mistake in an initial decision. In Negron, the "Remedies" section of the ALJ decision had included a finding that the Complainant was entitled to a $10,000 award of compensatory damages, but in the Order section directed that the Respondent pay the Complainant $50,000 in compensatory damages. The Respondent filed a petition for review with the ARB, which issued a Notice of Appeal and Order Establishing Briefing Schedule. The same day as the ARB's Notice, the ALJ issued three documents: a motion for leave to correct clerical error, an erratum, and a corrected Decision and Order. In the Motion, the ALJ requested that the Board permit him to correct the clerical error under the authority of FRCP 60(a). The ALJ averred that, due to clerical oversight, the Remedies section should have stated that the Complainant was entitled to $50,000 in compensatory damages. In addition, the ALJ requested that he be permitted to insert additional text following the corrected sentence to replace text in the original decision. The Respondent objected.

The ARB held that FRCP 60(a) was applicable. It then stated that to determine whether FRCP 60(a) permits correction, the Board had to "determine whether the correction is intended to conform the order to reflect the intent of the ALJ when he entered the original order or whether the correction has been requested in an attempt to correct a factual or legal error in the original decision. American Fed'n of Grain Millers v. Cargill, Inc., 15 F.3d 726, 728 (7th Cir. 1994)." The Board cited Blanton v. Anzalone, 813 F.2d 1574, 1577 n.2 (1987) to the effect that "blunders in execution" can be corrected, whereas "changes in mind" cannot.

The ARB held that the ALJ erred by issuing the motion, the erratum and the corrected decision simultaneously, indicating that he should have first filed the motion for leave to correct and permitted the ARB to rule. The Board, however, found the error harmless because under the circumstances it would have remanded the case. The Board noted that the latitude to correct clerical errors is very wide; that the ALJ had unequivocally stated that the $10,000 figure was in error, which was supported by the fact that the Order directed the payment of $50,000. Although the Board indicated that it would have liked a fuller explanation, it had absolutely no basis for disbelieving the ALJ's assertion of clerical error. The Board took into account that the ALJ had acted expeditiously and that it reviews ALJ's legal conclusions de novo. Thus, the Board granted the ALJ's motion to correct error, and recognized the ALJ's corrected decision as the decision on appeal.

INTERLOCUTORY APPEALS IN AIR21 CASES – PLUMLEY STANDARD

In Ford v. Northwest Airlines, Inc., 2002-AIR-21 (ARB Jan. 24, 2003), the ARB determined that it would apply the Plumley v. Federal Bureau of Prisons, 1986-CAA-6 (Sec'y Apr. 29, 1987), interlocutory review procedures to AIR21 whistleblower cases. The ARB rejected Respondent's contention that the ALJ's having placed a notice of appeal rights on a remand order converted the ALJ's decision into a final appealable rather than an interlocutory order "because the Order of Remand does not 'end[ ] the litigation on the merits and leave[ ] nothing for the court to do but execute the judgment.' Catlin v. United States, 324 U.S. 229, 233 (1945)." The ARB, however, did find that the ALJ's notice of appeal rights was, in effect, a certification of the question for ARB review. Nonetheless, the ARB declined to depart from its strong policy against piecemeal appeals and strict construction of the collateral appeal exception.

INTERLOCUTORY REVIEW; ISSUE OF COVERAGE UNDER WHISTLEBLOWER STATUTE IS FULLY REVIEWABLE ON APPEAL SHOULD THE COMPLAINANT PREVAIL, AND THEREFORE DOES NOT QUALIFY FOR THE COLLATERAL ORDER EXCEPTION

In Thompson v. BAA Indianapolis, LLC, ARB No. 06-061, ALJ No. 2005-AIR-32 (ARB June 30, 2006), the ALJ denied the Respondent’s motion for summary decision seeking dismissal on the ground that an airport is not subject to AIR21's whistleblower provision. The ALJ certified the issue for an interlocutory appeal. The ARB denied interlocutory review on the grounds that (1) the issue presented was one of coverage rather than subject matter jurisdiction, and (2) should the Complainant prevail before the ALJ, the issue of whether the Respondent is a covered Employer will be fully reviewable on appeal. Thus, the request for interlocutory review did not meet the collateral order exception.

JURISDICTION; COVERAGE IS NOT A JURISDICTION ISSUE

In Broomfield v. Shared Services Aviation, 2004-AIR-20 (ALJ Aug. 9, 2004), the ALJ observed that the issue of whether the Respondent is an air carrier covered by AIR21 is an issue of coverage rather than jurisdiction.

PRO SE COMPLAINANTS; ADJUDICATIVE LATITUDE; ADEQUATE OPPORTUNITY TO TESTIFY

In Peck v. Safe Air International, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3 (ARB Jan. 30, 2004), the Complainant alleged before the ARB that the ALJ had prevented him from testifying. The ARB first described an ALJ's and the ARB's obligations toward a pro se litigant:

We construe complaints and papers filed by pro se complainants "liberally in deference to their lack of training in the law" and with a degree of adjudicative latitude. Young v. Schlumberger Oil Field Serv., ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 8-10 (ARB Feb. 28, 2003), citing Hughes v. Rowe, 449 U.S. 5 (1980). At the same time we are charged with a duty to remain impartial; we must "refrain from becoming an advocate for the pro se litigant." Id. We recognize that while adjudicators must accord a pro se complainant "fair and equal treatment, [such a complainant] cannot generally be permitted to shift the burden of litigating his case to the [adjudicator], nor to avoid the risks of failure that attend his decision to forgo expert assistance." Griffith v. Wackenhut Corp., ARB No. 98-067, ALJ No. 97-ERA-52, slip op. at 10 n.7 (ARB Feb. 29, 2000), quoting Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C. Cir. 1983). Affording a pro se complainant undue assistance in developing a record would compromise the role of the adjudicator in the adversary system. See Young v. Schlumberger Oil Field Serv., ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 9, citing Jessica Case, Note: Pro Se Litigants at the Summary Judgment Stage: Is Ignorance of the Law and Excuse?, 90 KY. L. J. 701 (2002). We accordingly have scrutinized the ALJ's treatment of the parties, mindful of the balance properly maintained between accommodation and evenhanded administration.

The ARB then analyzed whether the ALJ provided the Complainant with a meaningful opportunity to testify and otherwise to present his complaint, and found that the ALJ had accorded the Complainant such an opportunity. The Board wrote: "Whether the ALJ's recommendation would have been better informed had Peck testified is not at issue. Peck did not testify despite having had the opportunity to do so, and the record for consideration is the one before us."

NEW COMPLAINT; FILING DIRECTLY WITH OALJ WHILE OLDER COMPLAINT PENDING ADJUDICATION

In Ford v. Northwest Airlines, Inc., 2002-AIR-21 (ALJ Oct. 18, 2002), while his initial complaint was pending before an ALJ, Complainant filed a new complaint about blacklisting with the ALJ, arguing a right to amend his complaint to include new evidence of retaliatory adverse action. The ALJ reasoned that Congress had provided for a two-tier scheme for handling whistleblower complaints that begins with an OSHA investigation. Thus, the ALJ concluded that "[a] better procedure is to make the initial complaint to OSHA and then move to consolidate the complaint with litigation pending before the OALJ." The ALJ remanded the case for an OSHA investigation into complaints that had originally been determined by OSHA to be untimely and therefore not investigated.

Respondent appealed to the ARB. Ford v. Northwest Airlines, Inc., ARB No. 03-014, ALJ No. 2002-AIR-21 (ARB Jan. 24, 2003) The ARB declined interlocutory review, and, applying the collateral order test wrote:

The purpose of the [ALJ's] remand order is to conduct an investigation into the complaints of blacklisting that allegedly form a basis of Ford's complaint. Thus the subject matter of the remand is not completely separate from the merits. In fact, it is possible that as a result of the investigation, the complaint will be resolved and no further adjudication by the ALJ or Board will be required. In any event, if ultimately Northwest is dissatisfied with either the results of the investigation or, if the complaint is upheld, with the ALJ's determination regarding the alleged protected activities falling within the ambit of the complaint, Northwest may raise these issues with Board upon the filing of a timely petition for review of the ALJ's final order.

POST-COMPLAINT ADVERSE EMPLOYMENT ACTIONS; LITIGATION BY EXPRESS OR IMPLIED CONSENT

In Kinser v. Mesaba Aviation, Inc., 2003-AIR-7 (ALJ Feb. 9, 2004), the Complainant presented evidence on the contention that he suffered retaliatory adverse employment actions in the months following the filing of his AIR21 complaint. The Complainant had not amended his complaint and the newly raised events had not been investigated by OSHA. The Respondent objected. The ALJ held that:

An administrative law judge may decide an issue raised by express or implied consent and fairly, fully litigated on the merits even though that issue was not contained in the pleadings. 29 C.F.R. § 18.43(c) (2003); Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992). The record must show that the parties "understood the evidence to be aimed at the unpleaded issue." Yellow Freight, 954 F.2d at 358.
These alleged retaliatory actions took place in October of 2002, almost two months after the complaint was filed. The parties thoroughly explored these events at the hearing and the record contains documentary evidence regarding the events. Respondent took the opportunity to question its own witnesses and cross-examine Complainant's witnesses about these events. Respondent's questions to the witnesses about these events reveal an understanding that these events would be included in the claim. By including these events, Complainant does not seek to introduce a new theory into this case. The parties fairly and fully litigated the issues arising from the events of October of 2002, and they will be treated as if Complainant had included them in his original complaint.

[Editor's note: But see Sasse v. Office of the U.S. Attorney, USDOJ, ARB No. 02-077, ALJ No. 1998-CAA-7 (ARB Jan. 30, 2004) (merely probing Complainant's evidence does not establish trial by consent).]

SUBPOENAS; ALJ FOUND NOT TO HAVE ERRED IN REFUSING TO ISSUE SUBPOENAS

In Hafer v. United Airlines, Inc., ARB No. 06-017, ALJ No. 2005-AIR-8 (ARB Jan. 31, 2008), the Complainant contended that the ARB should "reconsider" the ALJ’s ruling denying issuance of subpoenas. A two member panel of the ARB held that the ALJ "did not err by concluding that [the Complainant] was not entitled to the subpoenas he requested." USDOL/OALJ Reporter at 6 (footnote omitted).

[Editor’s note: The ARB referenced in this regard a ruling made by the ALJ in a letter to the Complainant declining to issue requested subpoenas. The ALJ had written:

Although Congress has authorized Administrative Law Judges to issue subpoenas in various kinds of proceedings, it has not given Administrative Law Judges the authority to issue subpoenas in any type of whistleblower proceeding, including proceedings under the AIR21 statute. In other whistleblower cases, some other Administrative Law Judges have on occasion decided to issue subpoenas based upon the decision of the Administrative Review Board (ARB) in Childers v. North Carolina Power & Light ARB Case 98-77 (2000). However, the ARB’s decision in the Childers case is inconsistent with the opinion of the Solicitor of the Department of Labor, who would be responsible for enforcing any such subpoena, and with a decision issued in 2003 by the Federal District Court for the District of Columbia. See Bobreski v. U.S. Environmental Protection Agency, 284 F.Supp.2d 67 (DC DC 2003) As a result, I have concluded that the subpoenas you request would in all likelihood be unenforceable. For that reason, I have further concluded that they should not be issued.

The content of this letter, however, is not recited in the ARB’s decision, and it is not entirely clear that the Board was affirming the ALJ’s analysis. Childers was an important precedent, and it seems unlikely that the Board would overturn it in this way.]

SUBPOENA POWER OF ALJ; CONFLICT BETWEEN CHILDERS DECISION AND POLICY DIRECTIVE OF ACTING SOLICITOR OF LABOR

In Peck v. Island Express, 2001-AIR-3 (ALJ Aug. 20, 2001), the ALJ was faced with a motion to quash a subpoena issued by the Chief Administrative Law Judge. In ruling on the motion to quash, the ALJ noted that the subject of administrative subpoenas had recently engendered a legal debate within DOL. The latest ruling from the ARB on the subject was made in Childers v. Carolina Power & Light. Co., ARB No. 98-077, ALJ No. 1997-ERA-32 (ARB Dec. 29, 2000), in which ARB rejected the requirement for "express authorization" by Congress for ALJ subpoena power, reasoning that such power was inherent given that the whistleblower provision of the ERA required DOL to issue an adjudicative order on the record.

The ALJ observed that in a July 2001 directive, the Acting Solicitor for DOL concluded that the reasoning of the ARB in Childers was "erroneous" and dictum which is "legally indefensible." According to the Acting Solicitor's directive, the agency should resist complying with subpoenas not specifically authorized by statute in whistleblower cases. The ALJ, however, concluded that, considering the ARB would review his rulings and not the Solicitor, he was bound to apply the Childers ruling on subpoena authority. Moreover, the ALJ stated that he agreed with the legal analysis of the ARB in Childers in regard to subpoena power where the agency is required to conduct formal hearings.

See also BNA, Daily Labor Report No. 157, Wednesday, August 15, 2001, "Labor Solicitor Rejects Subpoena Use By ALJs in Certain Whistleblower Cases."

SUBPOENA; MOTION TO QUASH; COMPLAINANT'S NEED FOR TESTIMONY OF FAA SAFETY INSPECTOR

In Peck v. Island Express, 2001-AIR-3 (ALJ Aug. 20, 2001), Complainant subpoenaed an FAA aviation safety inspector. FAA regulations do not permit its employees to testify in proceedings involving private litigants unless the request for testimony or documents is submitted in accordance with 49 C.F.R. Part 9. Under this provision, the request for testimony and documents is sent to the FAA General Counsel who determines whether the FAA will produce the requested documents and permit the requested individual to testify. In Peck, the FAA filed a motion to quash because Complainant's subpoena did not comply with the FAA regulations.

In denying the motion to quash, the ALJ initially determined that subpoenas are available to litigants in AIR21 cases. (see casenote above). Turning to the Complainant's need to depose the FAA employee, the ALJ found that the employee's testimony would be necessary because she was the Complainant's contact at the FAA, and her testimony would go directly to the issue of whether Respondent was aware of Complainant's protected activity. The ALJ also determined that the employee's testimony would assist him in determining whether Complainant's discrimination complaint was frivolous or brought in bad faith The ALJ found that the subpoena was reasonably specific and not unreasonably burdensome. Finally, the ALJ commented that for the FAA to refuse to provide witnesses, and documents essential to whistleblowers' efforts to prove their employment discrimination complaints would be contrary to the purposes of AIR21.

DISCOVERY; LIMITATION TO ISSUE RELATED TO SUMMARY DECISION MOTION

The ALJ did not abuse his discretion in Friday v. Northwest Airlines, Inc., ARB No. 03-132, ALJ Nos. 2003-AIR-19 and 20 (ARB July 29, 2005), in denying the Complainant's motion for additional discovery filed after the ALJ had limited discovery to the issues presented in the Respondent's motion for summary decision.

PROCEDURE BEFORE ARB

ARB BRIEFING REQUIREMENTS; DELIBERATE FAILURE TO COMPLY WITH DOUBLE-SPACING, FONT SIZE AND MARGIN SIZE REQUIREMENTS

In Evans v. Miami Valley Hospital and CJ Systems Aviation Group, Inc., ARB Nos. 07-118, 07-121, ALJ No. 2006-AIR-22 (ARB Mar. 11, 2008), the ARB granted the Complainant's motion to strike one Respondent's rebuttal brief where that Respondent had previously been warned about failure to follow the ARB's briefing rules, but had nonetheless filed its rebuttal brief with about one-half the text in tiny print of single spaced footnotes, and the margins smaller than permitted by the briefing order. The ARB agreed with the Complainant that the brief demonstrated "outrageous disrespect to the Board and disregard for the integrity of the briefing process. It is cheating. It is quite obviously deliberate. It should not be overlooked or excused."

NEW ARGUMENT ON APPEAL; ARB ‘S FUNCTION IS TO REVIEW ALJ’S DECISION FOR ERROR, NOT TO PROVIDE FORUM TO TRY OUT NEW THEORIES

In Mancinelli v. Eastern Air Center, Inc., ARB No. 06-085, ALJ No. 2006-AIR-8 (ARB Feb. 29, 2008), the ALJ dismissed the Respondent’s request for a hearing as untimely. On appeal, the Respondent for the first time argued that it had showed sufficient diligence to warrant equitable tolling of the limitations period (having sent a letter with objections to the OSHA office that issued the preliminary findings and requesting that OSHA forward the letter to the Chief ALJ). The ARB refused to consider the argument, stating that its “function is to review ALJ recommended decisions for error; it is not to provide litigants with a forum where they can retry their cases with new theories.” The ARB also stated that the Respondent did “not cite, nor do we know of any legal basis, allowing a party to unilaterally transfer its duty to comply with written procedural requirements from itself to the Regional Administrator.”

NEW ARGUMENT ON APPEAL; ARGUMENT NOT MADE BEFORE THE ALJ DEEMED WAIVED
ARGUMENT MADE WITHOUT SUPPORTING ARGUMENT WILL NOT BE CONSIDERED BY THE ARB

In Mancinelli v. Eastern Air Center, Inc., ARB No. 06-085, ALJ No. 2006-AIR-8 (ARB Feb. 29, 2008), the Employer argued for the first time on appeal that the Complainant’s whistleblower complaint was barred by res judicata based on a state law judgment. The ARB found that this argument had been waived because it had not been raised before the ALJ, and that even if not waived, it would not be be considered due to lack of supporting argument, the Respondent having not identified even one aspect of the state proceeding that was identical to the instant proceeding.

RECONSIDERATION BY THE ARB; APPLICATION OF FRAP 40

In considering a motion for reconsideration, the ARB looks for guidance to FRAP 40. See Powers v. Pinnacle Airlines, Inc., ARB No. 06-078, ALJ Nos. 2006-AIR-4 and 5 (ARB Jan. 30, 2008).

RECONSIDERATION BY THE ARB; REHASHING OF PREVIOUSLY REJECTED ARGUMENTS AND IMMATERIAL ALLEGATIONS DO NOT SUPPORT RECONSIDERATION

Reconsideration will be denied by the ARB where the motion for reconsideration is merely a rehashing of arguments already considered and rejected by the Board, and allegations not material to the basis for the Board’s Final Decision and Order. See Powers v. Pinnacle Airlines, Inc., ARB No. 06-078, ALJ Nos. 2006-AIR-4 and 5 (ARB Jan. 30, 2008).

RECONSIDERATION BY THE ARB; AUTHORITY TO RECONSIDER UNDER AIR21

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int'l Union (PACE), ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Dec. 21, 2007), the ARB held that it has the authority to reconsider its decisions under AIR21. In this regard, the ARB concluded that reconsideration of AIR21 decisions would not adversely affect accomplishment of the purposes and goals of AIR21, and thus AIR21 did not limit the ARB’s inherent authority to reconsider.

RECONSIDERATION; MUST BE FILED WITHIN A REASONABLE TIME, WHICH MUST BE WITHIN A SHORT TIME AFTER THE DECISION OR RAISE A RULE 60(b)-TYPE GROUND OR SHOW GOOD CAUSE FOR THE DELAY; 27 DAYS IS NOT A SHORT TIME; BOARD’S CASELAW ON RECONSIDERATION IS ADEQUATE TO ESTABLISH RECONSIDERATION PROCEDURE; LOSS OF SOX JURISDICTION UPON REMOVAL TO FEDERAL COURT DOES NOT NEGATE ARB’S JURISDICTION OVER OTHER WHISTLEBLOWER LAWS RAISED IN THE APPEAL

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int'l Union (PACE), ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Dec. 21, 2007), the ARB applied its ruling in Henrich v. Ecolab, Inc., ARB No. 05-030, ALJ No. 2004-SOX-51 (ARB May 30, 2007), that a motion for reconsideration must be filed within a "reasonable time." In applying this requirement, the motion must be filed within a "short time" after the decision, or, after a longer period if the petition raises Rule 60(b)-type grounds or showed "good cause" for the delay. In Powers, the Board found that 34-days for the filing of the Complainant’s motion for reconsideration was too long to be characterized as a "short time." In a footnote, the Board also suggested that the 27 days from the date that the Complainant alleged she received the Board’s decision was also not a short time, but did not reach the issue of whether the time frame begins upon issuance or receipt of the decision.

The Board found that the Complainant did not show good cause for the delay based on the absence of applicable procedures, the Board finding ample caselaw precedent for its "short time" requirement. It also found that it was under no obligation to inform the Complainant about the requirement and that a pro se litigant bears the risk of foregoing expert assistance. The case had been remanded, and the Complainant observed that the ALJ had not issued any orders on remand; but the Board found the ALJ’s schedule of communications to be irrelevant.

The Board then reviewed a series of other grounds raised by the Complainant for reconsideration, and found that only one of them raised a Rule 60(b)-type ground warranting a longer period for the filing of a motion to reconsider – namely, that the Complainant had removed her SOX complaint to federal district court prior to the ARB’s decision. The Board observed that it was not aware of the filing of the SOX complaint in federal court, but found that the issue of subject matter jurisdiction cannot be waived. The Board then screened the jurisdictional ground for reconsideration to determine whether there existed a reason to reconsider, and found that its assuming that it had jurisdiction over the SOX complaint when it actually did not constituted manifest error. The ARB, however, rejected the Complainant’s contention that the entire remand order was void, the ARB finding that it still had jurisdiction over the portions of the complaint raising AIR21 and various environmental whistleblower laws. Accordingly, the Board modified those portions of the remand order that referenced the SOX complaint, and reissued the order.

MOTION FOR RECONSIDERATION OF ARB DECISION

In Powers v. Pinnacle Airlines, Inc., ARB No. 05-022, ALJ No. 2004-AIR-32 (ARB July 27, 2007), the ARB denied the Complainant's motion for reconsideration where it was merely a rehashing of arguments that the Board had already considered and rejected, and a presented allegations not material to the basis for the Board's Final Decision and Order. The Board also indicated, but did not rule, that a motion for reconsideration filed 41 days after issuance of the Final Decision and Order might be considered untimely.

ALJ'S CREDIBILITY DETERMINATIONS NOT BASED ON DEMEANOR; IN AIR21 AND SOX CASES, SUCH DETERMINATIONS ARE REVIEWED UNDER THE SUBSTANTIAL EVIDENCE STANDARD RATHER THAN DE NOVO

In Walker v. American Airlines, Inc., ARB No. 05-028, ALJ No. 2003-AIR-17 (ARB Mar. 30, 2007), the Complainant argued on appeal that the ARB should overturn the ALJ's credibility determinations. According to the Complainant, because the ALJ determination was not demeanor based it should be reviewed de novo. The ARB rejected the argument that de novo was the appropriate standard of review, noting that the caselaw cited by the Complainant was all from environmental whistleblower cases. In contrast, in AIR21 and SOX cases the ARB is required to review an ALJ's fact determinations under the substantial evidence standard. Because the ALJ's credibility determinations were not explicitly based on demeanor, the Board would not afford those determinations the "great deference" that a demeanor-based determination would receive. Nonetheless, because they were factual findings, the ARB was required to uphold them if supported by substantial evidence.

PROCEDURE BEFORE THE ARB; SPECIFICITY NECESSARY TO RAISE ASSIGNMENT OF ERROR; WAIVER OF ARGUMENTS RAISED IN PETITION FOR REVIEW BUT NOT DISCUSSED IN APPELLATE BRIEF

The ARB ruled in Walker v. American Airlines, Inc., ARB No. 05-028, ALJ No. 2003-AIR-17 (ARB Mar. 30, 2007), that under the regulations implementing AIR21, a petition for review must specifically identify the findings, conclusions or orders to which exceptions are taken. 29 C.F.R. § 1979.110(a). General assignments of error do not meet this standard. Moreover, the ARB stated that it was disinclined to consider as argument passing references and commentary in the factual summary section of a petition. The ARB also stated that an argument raised in a petition but not discussed in a brief is considered abandoned and thereby waived.

PETITION FOR ARB REVIEW; EXCEPTION NOT SPECIFICALLY URGED IN PETITION FOR REVIEW DEEMED WAIVED

In Rougas v. Southeast Airlines, Inc., ARB No. 04-139, ALJ No. 2004-AIR-3 (ARB July 31, 2006), PDF | HTM the ARB observed in a footnote that because the Respondent had not filed a petition for review, it was likely that it was precluded from pursuing on appeal its argument that the Complainant's "admission" that he flew while unfit precluded him from asserting an AIR21 claim. See 29 C.F.R. § 1979.110(a) (any exception not specially urged in petition for review is deemed waived). The ARB also observed that it did not appear based on the facts found thus far that the Complainant had actually admitted to flying while unfit. Because it was remanding the case, however, the ARB deemed it premature to address the Respondent's contention.

SCOPE OF ARB REVIEW; ISSUES NOT RAISED BEFORE THE ALJ

In Rougas v. Southeast Airlines, Inc., ARB No. 04-139, ALJ No. 2004-AIR-3 (ARB July 31, 2006), PDF | HTM the ARB declined to consider the Complainant's argument that AIR21 is unconstitutional because it does not provide a statutory right to a jury trial. The ARB declined to consider the issue because it had not been raised before the ALJ.

JURISDICTION OF THE ARB; NOTICE OF COMPLAINANT OF INTENT TO FILE A SOX COMPLAINT IN FEDERAL COURT; ARB RETAINS JURISDICTION TO DISPOSE OF AIR21 COMPLAINT

In Powers v. Pinnacle Airlines, Inc., ARB No. 05-022, ALJ No. 2004-AIR-32 (ARB Jan. 31, 2006), the Complainant indicated an intent to file a consolidated complaint under the SOX regulations in district court. The ARB observed that the AIR21 does not include a SOX-type election to file in district court and that OSHA and the ALJ had treated the complaint as only stating a claim under AIR21. The ARB found that regardless of whether the district court assumed jurisdiction over any SOX claims that the Complainant may have raised, the district court would not have jurisdiction over the AIR21 claim, and therefore the ARB retained jurisdiction to dispose of the AIR21 complaint.

ARB BRIEFING REQUIREMENTS; CONTUMACIOUS REFUSAL TO FILE CONFORMING BRIEF RESULTS IN DISMISSAL OF APPEAL

In Powers v. Pinnacle Airlines, Inc., ARB No. 06-078, ALJ Nos. 2006-AIR-4 and 5 (ARB June 28, 2007), the ARB dismissed the Complainant's appeal because "even after the Board gave Powers explicit instructions concerning the Board's format and page limitation requirements, gave her ample opportunities to file a brief conforming to these requirements and limitations and unambiguously warned her that if she failed to file a conforming brief her appeal would be subject to dismissal without additional order, she nevertheless filed a brief that is not double-spaced and exceeds the Board's page limitations." The Complainant had two previous ARB appeals dismissed because she refused to file conforming briefs, both upheld by the Sixth Circuit. The ARB thus found that "there is not the slightest doubt that Powers had notice that if she refused to file a conforming brief, the Board would dismiss her appeal. Furthermore, in light of these previous dismissals, Powers's intransigent refusal to file a conforming brief could properly be described as nothing less than 'contumacious.'"

ARB TECHNICAL BRIEFING REQUIREMENTS; SIZE OF FONT IN FOOTNOTES

In Powers v. Pinnacle Airlines, Inc., ARB No. 05-022, ALJ No. 2004-AIR-32 (ARB Jan. 31, 2006), the Complainant moved to strike the Respondent's brief because it included footnotes that were not in 12-point size. Although not ruling on this motion because it found that the outcome of the case would have been no different if the brief had been struck, the Board stated that it "would not countenance any attempt to subvert the Board's page limit for briefs through the use of an inordinate number of undersized footnotes." Slip op. at n.58.

ISSUES ON APPEAL; ARB WILL NOT CONSIDER ISSUES RAISED IN A BRIEF THAT WERE NOT INCLUDED IN THE PETITION FOR REVIEW

In Robinson v. Northwest Airlines, Inc., ARB No. 04-041, ALJ No. 2003-AIR-22 (ARB Nov. 30, 2005), the ARB declined to consider arguments made by the Respondent in its appellate brief on the issues of subject matter jurisdiction and res judicata where the Respondent had not petitioned for review of those aspects of the ALJ's decision.

WHEN ALJ'S DECISION BECOMES APPEALABLE; DECISION ON ATTORNEY'S FEES RESERVED

In Merritt v. Allegheny Airlines, Inc., 2004-AIR-13 (ALJ Feb. 14, 2005), the ALJ had issued a Decision and Order Granting Relief and attached a notice of appeal rights. The ALJ, however, had not yet determined the amount of attorney fees to be awarded. The ALJ granted the Respondent's motion for clarification of the notice of rights of appeal. The ALJ found that, in light of Welch v. Cardinal Bankshares Corp., ARB No. 04-054, ALJ No. 2003-SOX-15 (ARB May 13, 2004) (ALJ's decision must be final before it is eligible for appeal), the earlier decision would be amended to not include the notice of appeal rights, but that such notice would accompany his decision on attorney's fees. The ALJ, however, ruled that his order of reinstatement was still in effect.

PROCEDURE BEFORE THE ARB; MOTION TO EXPAND THE RECORD

In Rollins v. American Airlines, Inc., ARB No. 04-140, ALJ No. 2004-AIR-9 (ARB Jan. 7, 2005), the ARB denied the Complainant's motion to submit an expanded administrative record on appeal. The Complainant argued that the expanded record was necessary because the ALJ allegedly had made rulings outside the bounds of the matters briefed and raised in the Respondent's pleadings. The Board noted that the Complainant sought to show that he had presented a prima facie case, but that the basis of the ALJ's decision was that the complaint had not been timely filed.

BANKRUPTCY

BANKRUPTCY; ACTIONS OF RESPONDENT OCCURRING AFTER FILING OF BANKRUPTCY

In Sassman v. United Airlines, ARB No. 05-077, ALJ Nos. 2005-AIR-4 (ARB Sept. 28, 2007), the Complainant had financed a loan for a van through an employee credit union. The Complainant filed an AIR21 whistleblower complaint after his discharge, which was dismissed because it had been discharged as part of the Respondent airline’s bankruptcy reorganization. While that complaint was pending, the credit union repossessed the van, sold it at auction, and sought to collect the balance of the loan from the Complainant. The Complainant filed a new whistleblower complaint alleging that the Respondent airline caused the credit union to treat him more harshly upon default than other credit union members because of his protected activity. The ALJ dismissed the complaint. While on appeal to the ARB, the airline informed the ARB that the Bankruptcy Court had entered a confirmation order discharging the airline from any claims of any nature that arose before the confirmation date. The Complainant argued that the current case arose after the Respondent filed for bankruptcy and therefore was not discharged; he cited no authority for this argument. The ARB held that the AIR21 claim against the airline, “whether characterized as a pre-petition claim or as a post-petition claim, was discharged in bankruptcy because it arose before the Confirmation Order was entered ….”

BANKRUPTCY; FAILURE OF PARTIES TO COMMUNICATE WITH THE BOARD FOLLOWING RESOLUTION OF BANKRUPTCY PROCEEDING OR TO RESPOND TO ORDER TO SHOW CAUSE

In Taylor v. Express One International, Inc., ARB No. 02-054, ALJ No. 2001-AIR-2 (ARB Aug. 23, 2007), the ARB had stayed an appeal because the Respondent had entered bankruptcy. After the Board received a copy of an Agreed Order concluding the Respondent’s bankruptcy case, and neither party communicated with the Board, the Board issued an Order to Show Cause why the case should not be dismissed on grounds of abandonment. Neither party responded, and the Board dismissed the appeal.

To the same effect: Carmichael v. Consolidated Freightways Corp. of Delaware, Inc., ARB No. 02-081, ALJ No. 2000-STA-53 (ARB Aug. 23, 2007).

BANKRUPTCY; RESPONDENTS WHO PASSED THROUGH BANKRUPTCY MAY BE ASSUMED TO HAVE CLAIMS AGAINST THEM EXTINGUISHED UNLESS THE COMPLAINANT CAN SHOW OTHERWISE

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int’l Union (PACE), ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), several airlines named in the Complainant’s whistleblower complaint filed for bankruptcy between the time the ARB accepted the matter for review and the date it received the record from the ALJ, and the ARB consequently stayed the appeal. Once all entities emerged from bankruptcy, the ARB resumed consideration of the appeal. It found that the airlines that passed through bankruptcy would be considered to be discharged and dismissed from the action unless the Complainant provided evidence showing otherwise.

DISMISSAL; CHAPTER 11 REORGANIZATION OF RESPONDENT

In Davis v. United Airlines, Inc., ARB. 02-105, ALJ No. 2001-AIR-5 (ARB Apr. 26, 2006), PDF the Bankruptcy Court entered into an order confirming United Airlines' Chapter 11 reorganization plan. Shortly thereafter, United filed a Notice of Discharge with the ARB relating to three appeals under stay before the Board. The ARB issued orders to show cause why the stays should not be lifted and the complaints dismissed. None of the Complainants proffered any legally supported rationale for not dismissing their complaints. Accordingly, the ARB dismissed all three appeals in a consolidated decision.

BANKRUPTCY; AUTOMATIC STAY APPLIES TO ARB REVIEW OF ALJ AIR21 DECISION

The Bankruptcy Code's automatic stay provision at 11 U.S.C.A. § 362(a)(1) (West Supp. 2003), applies to cases litigated by private parties arising under AIR21's whistleblower protection provision. See Davis v. United Airlines, ARB No. 02-105, ALJ No. 2001-AIR-5 (ARB May 30, 2003). Accordingly, in Merritt v. Allegheny Airlines, Inc., ARB No. 05-084, 2004-AIR-13 (ARB Aug. 17, 2005), the ARB stayed its review of the ALJ's decision until the automatic stay is lifted or the bankruptcy proceeding are concluded.

BANKRUPTCY; AUTOMATIC STAY OF ARB APPEAL

In Merritt v. Allegheny Airlines, Inc., ARB No. 05-084, ALJ No. 2004-AIR-13 (ARB Aug. 17, 2005), the Respondent had entered into bankruptcy proceedings. The ARB noted that it has previously held that the Bankruptcy Code's automatic stay provision applies to cases litigated by private parties arising under AIR 21's whistleblower protection provision. Accordingly, the ARB stayed further proceedings until the automatic stay is lifted or the bankruptcy proceedings are concluded.

BANKRUPTCY; AUTOMATIC STAY; AIR21 WHISTLEBLOWER CASES EXEMPT

In Bodine v. International Total Services, 2001-AIR-4 (ALJ Nov. 20, 2001), the ALJ recommended a finding that the automatic stay provision the Bankruptcy Act, 11 U.S.C. § 362(a)(1), was not applicable to an AIR21 whistleblower proceeding pursuant to the exemption at Subsection 362(b)(4). Subsection 362(b)(4) provides that a bankruptcy petition does not act as a stay "under subsection (a)(1) of this section, of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power." The ALJ found:

In this case, Respondent, who is engaged in airport security operations, fired Complainant after he reported certain alleged "security breaches" by Respondent to various authorities. After an investigation into the complaint, the Secretary found that the "complainant [was] 'protected' under the law for providing information to regulatory agencies about violations or alleged violations of any order, regulation or standard related to air carrier safety." There is no greater example of regulations designed to ensure public safety than those of the AIR which regulate commercial air travel. Certainly, the Department's exercise of their power to investigate and enforce this power through sanctions and other assessments is not subject to the automatic stay provisions of the Bankruptcy Code. Such reasoning would go against the very purpose of the AIR and the automatic stay provision of the Bankruptcy Act.

BANKRUPTCY STAY; AIR21 CASES; POLICE AND REGULATORY AUTHORITY EXEMPTION DOES NOT APPLY WHERE COMPLAINANT IS SOLE PROSECUTING PARTY

In Davis v. United Airlines, ARB No. 02-105, ALJ No. 2001-AIR-5 (ARB May 30, 2003),* the ARB ruled in a consolidated Order Staying Proceedings that, where the employee complainant is the sole prosecuting party in an AIR21 whistleblower adjudication, the automatic stay of the Bankruptcy Code, 11 U.S.C. § 362(a)(1) applies, and the proceeding is not exempt under § 362(b)(4). The § 362(b)(4) exemption to actions and proceedings by a governmental unit to enforce its police and regulatory authority. The ARB found that the great weight of the authority is that § 362(b)(4) refers to prosecutorial activity by a governmental unit. The Board rejected the argument that the Secretary's involvement in the entire administrative process created by § 42121 renders every step of that process a "governmental action or proceedings" within the meaning of the bankruptcy stay exemption. The ARB found that the few cases that "focus on adjudication by a governmental unit reject the notion that an agency adjudicator could be a § 364(b)(4) governmental unit." In other words, an agency acting in a quasi-judicial capacity seeking to adjudicate private rights is not engaged in the enforcement of policy or regulatory laws within the meaning of the bankruptcy stay exemption.

The decision takes no position on whether the stay applies if the Secretary or a delegate took a role in an AIR21 proceeding other than as an investigator of the employee's initial complaint.

______
* The order also applies to the consolidated cases of Hafer v. United Airlines, ARB No. 02-088, ALJ No. 2002-AIR-5 (ARB May 30, 2003), Lawson v. United Airlines, ARB No. 03-037, ALJ No. 2002-AIR-6 (ARB May 30, 2003) and Taylor v. Express One International, Inc., ARB No. 02-054, ALJ No. 2001-AIR-2 (ARB May 30, 2003). In Lawson, the ALJ issued a Recommended Decision and Order after the filing of the petition for bankruptcy. The ARB agreed with the Respondent that this recommended decision was void ab initio.

BANKRUPTCY; JURISDICTION; DOL'S AUTHORITY TO DETERMINE WHETHER BANKRUPTCY STAY APPLIES

In Davis v. United Airlines, ARB No. 02-105, ALJ No. 2001-AIR-5 (ARB May 30, 2003), Respondents provided notice to the ARB of their filing for bankruptcy protection, and the ARB ordered briefs on whether the police and regulatory power exemption applied. One Respondent argued that only the Bankruptcy Court has authority to decide whether the automatic stay applies. The ARB, however, found that the overwhelming weight of authority is that the non-bankruptcy court properly responds to a fiilng by a party asserting an automatic stay under the bankruptcy law by determining whether the automatic stay applies to (i.e., stays) the proceedings.

TIMELINESS OF REQUEST FOR ARB REVIEW

TIMELINESS OF PETITION FOR ARB REVIEW; POSTMARK IS CONSIDERED DATE OF FILING

In Robinson v. Northwest Airlines, Inc., ARB No. 04-041, ALJ No. 2003-AIR-22 (ARB Nov. 30, 2005), the ARB found that under the AIR21 regulation at 29 C.F.R. § 1979.110(a), the Complainant's petition for ARB review was timely where it was postmarked on the 10th business day following the ALJ's decision, even though the ARB did not receive the mailing until 11 days later.

TIMELINESS OF PETITION FOR ARB REVIEW; LACK OF PROOF OF INVOCATION OF OVERNIGHT DELIVERY GUARANTEE AND LACK OF DILIGENCE IN VERIFYING DELIVERY

In Herchak v. USDOL, No. 03-72203 (9th Cir. Dec. 9, 2004) (unpublished) (case below ARB No. 03-057, ALJ No. 2002-AIR-12), the Complainant had appealed the ARB's finding that the Complainant's failure to file a timely appeal of the ALJ's decision was not excused based on an argument that Airborne Express had failed to deliver the document in a timely matter where the Complainant had not established that he had delivered the document to Airborne Express in time to invoke the overnight delivery guarantee and the Complainant had not been diligent in checking to see if the delivery had been timely made. The Ninth Circuit affirmed the ARB's dismissal of the appeal rejecting the Complainant's contention that the dismissal had been arbitrary and capricious. The court noted that courts have routinely affirmed agencies' strict application of internal regulatory deadlines, and that the "extraordinary circumstances" standard employed by DOL for equitable relief from untimely filings is a high threshold. The case was decided under the Interim Rules.

TIMELINESS OF APPEAL TO THE ARB; PERIOD FOR APPEAL COMMENCES ON DATE ALJ DECISION IS ISSUED RATHER THAN THE DATE THE DECISION IS SIGNED

In Svendsen v. Air Methods, Inc., ARB No. 03-074, 2002-AIR-16 (ARB Aug. 26, 2004), the ARB observed that the ALJ had signed his Recommended Decision and Order on February 26, 2003, but that the service sheet indicated that the decision was issued on March 3, 2003. The Board observed that under the regulations in effect at the time, "issuance of the ALJ's decision" triggered the period for appealing the ALJ's decision to the Board.

[Editor's note: For both the current regulations and the interim final regulations in effect at the time, it is the preamble in the Federal Register notice, and not the text of section 1979.110 itself, that refers to the "issuance" of the ALJ's decision as being the trigger date for the time period for an appeal to the to ARB. See 68 Fed. Reg. 14,100 (Mar. 21, 2003) and 67 Fed. Reg. 15453 (Apr. 2, 2002).]

REQUEST FOR ARB REVIEW; TIMELINESS; EQUITABLE TOLLING

Where Complainant failed to file a request for ARB review within the 15 day period provided for in 29 C.F.R. § 1979.110(a), the ARB dismissed the appeal in Stoneking v. Avbase Aviation, ARB No. 03-101, ALJ No. 2002-AIR-7 (ARB July 29, 2003). Complainant had filed a letter with the OALJ about one month after the due date for the appeal stating that he was requesting review of the ALJ's decision and order, and that he had not received the ALJ's decision until a week earlier as it was not sent to the correct address for timely delivery. The OALJ forwarded the letter to the ARB. Respondent opposed the petition for review, and the ARB issued an order to show cause to which Complainant did not reply. The ARB stated that 29 C.F.R. § 1979.100(b) is an internal procedural rule that is within the ARB's discretion to equitably relieve a party. The ARB stated that it was guided by the principles of equitable tolling applied in statutorily-mandated filing deadlines in determining whether to relax the limitations period in a particular case. The ARB dismissed the appeal because Complainant had failed to explain the untimely filing. The ARB found that the note to the ALJ that the decision had not been sent to the correct address was insufficient to support tolling of the limitations period, especially because Complainant was represented by counsel.

REQUEST FOR REVIEW BY ARB; TIMELINESS; INAPPLICABILITY OF PART 18; EQUITABLE CONSIDERATIONS

In Herchak v. America West Airlines, Inc., ARB No. 03-057, ALJ No. 2002-AIR-12 (ARB May 14, 2003), the Complainant filed a petition for review with the ARB that arrived on the 16th day after the ALJ's decision. Under the regulations in effect at the time, such a petition had to "be received within 15 days of the date of the decision of the administrative law judge" to be effective. 29 C.F.R. § 1979.110(a) (2002). Complainant argued that he had 20 days to file his petition by operation of 29 C.F.R. §§ 18.4(c)(3) and 1979.107(a) (incorporating the OALJ rules of practice at 29 C.F.R. Part 18 except as provided in Part 1979). The ARB found that the plain language of section 1979.110(a) admitted no room for debate that the petition had to be received by the 15th day, that sections 1979.110(a) and 18.58 both establish that Part 18 applies to hearing procedures and not appellate procedures, that section 1979.110(a) is a rule of specific application and therefore applies instead of section 18.4(c)(3), and finally that on its face, section 18.4(c) did not apply as it refers to calculations from service, not dates of documents.

The ARB then considered whether equitable tolling applies, citing the now familiar three situations in which tolling is proper: (1) when the defendant actively misleads the plaintiff respecting the cause of action, (2) the plaintiff has in some extraordinary way been prevented from asserting his rights, or (3) the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum. The ARB indicated that the inability to satisfy one of these elements would not necessarily be fatal but that due diligence is important. Further, the ARB stated that absence of prejudice to the other party could be considered, but only after some other factor justifying equitable tolling is identified. It is the party seeking to invoke equitable principles who bears the burden of justifying their application.

In the instant case, the only ground for equitable tolling was the claim that Airborne failed to deliver on time. The ARB, however, faulted Complainant for failing to establish that he delivered the package to Airborne in time to invoke the overnight package guarantee, and for failing to determine whether Airborne timely delivered the package, either by inquiring of the Board or Airborne as to whether the package had been received, noting that failure of timely delivery could have been rectified by faxing a copy of the petition.

[Editor's note: This decision appears to make it crucial to obtain confirmation of delivery of overnight delivery packages to the ARB if timeliness is a concern.]

TIMELINESS OF COMPLAINT

TIMELINESS OF COMPLAINT; COLLECTION LETTER FOUND NOT TO BE A SEPARATE, ACTIONABLE ADVERSE ACTION; CONTINUING VIOLATION DOCTRINE DOES NOT APPLY TO AIR21 WHISTLEBLOWER CASES

In Sassman v. United Airlines, ARB No. 05-077, ALJ Nos. 2005-AIR-4 (ARB Sept. 28, 2007), the Complainant had financed a loan for a van through an employee credit union. The Complainant filed an AIR21 whistleblower complaint after his discharge, which was dismissed because it had been discharged as part of the Respondent airline’s bankruptcy reorganization. While that complaint was pending, the credit union repossessed the van, sold it at auction, and sought to collect the balance of the loan from the Complainant. After receiving a collection letter from the credit union several years after the repossession, the Complainant filed a new whistleblower complaint alleging that the Respondent airline caused the credit union to treat him more harshly upon default than other credit union members because of his protected activity. Assuming for purposes of deciding the appeal that the credit union was a properly named respondent under AIR21 (the airline having been discharged in bankruptcy), the ARB found that the complaint should have been filed within 90 days of when the Complainant was informed that the van had been repossessed and that he would be liable for any deficiency on the loan balance after a sale at auction. The collection letter several years later was a consequence of the repossession, and not a separate, actionable adverse action. The ARB rejected the Complainant’s argument that his complaint was timely under the “continuing violation” doctrine, because he continued to engage in protected activity during the period of the repossession and collection efforts. The ARB found that continuing violation doctrine has nothing to do with when the protected activity took place, and that in any event, continuing violation doctrine does not apply to AIR21 whistleblower cases.

TIMELINESS OF COMPLAINT; DATE COMPLAINANT WAS PRESENTED WITH "CAREER DECISION DATE" CHOICES RATHER THAN LATER DATE OF TERMINATION IS DATE THAT LIMITATIONS PERIOD BEGINS

In Rollins v. American Airlines, Inc., ARB No. 04-140, ALJ No. 2004-AIR-9 (ARB Apr. 3, 2007), a whistleblower complaint arising under both AIR21 and SOX, the Respondent issued to the Complainant a "Career Decision Day Advisory Letter" providing three choices: (1) commit to comply with the Respondent's rules and regulations (including satisfactory work performance and personal conduct) and accept reassignment, (2) voluntarily resign with transitional benefits and agree not to file a grievance, or (3) accept termination with grievance options. Five days later the Complainant informed the Respondent that he would not agree to any of the options, and on that same day the Complainant was provided a letter of termination. The whistleblower complaint would be timely if measured from the date of the termination letter, but untimely if measured from the date of the advisory letter. The ARB found that advisory letter provided final and unequivocal notice to the Complainant that the Respondent had decided to terminate his employment. The ARB observed that under English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988), rev'd on other grounds, 496 U.S. 72 (1990) and Wagerle v. The Hosp. of the Univ. of Pa., 1993-ERA-1, slip op. at 3-6 (Sec'y Mar. 17, 1995), the possibility that the Complainant could have avoided the effects of the advisory letter by resigning voluntarily or accepting employment in another division did not negate the effect of the advisory letter's notification of intent to terminate the Complainant's employment. Thus, the complaint was untimely.

EQUITABLE TOLLING; PRECISE STATUTORY CLAIM IN THE WRONG FORUM; STATE LAW COMPLETELY PREEMPTED BY AIR21

In Turgeau v. Administrative Review Board, USDOL, No. 05-9503 (10th Cir. Apr. 27, 2006) (case below ARB No. 04-005, ALJ No. 2003-AIR-41), the Complainant, who worked for a aircraft repair and parts contractor for air carriers, filed suit in state court asserting state law claims for wrongful discharge and failure to pay wages in retaliation for complaining to the Respondent about its manufacturing processes. The Respondent removed to federal court where the district court held that the Complainant's suit was "completely preempted" by AIR21. The district court dismissed the suit based on failure to exhaust administrative remedies. The Complainant then filed a virtually identical AIR21 complaint with DOL. The state court action had been filed within the AIR21 limitations, but by the time of the filing with OSHA the limitations period had expired. OSHA, the ALJ and the ARB all dismissed the complaint as untimely. The ALJ and the ARB ruled that the complaint was not eligible for equitable tolling under the precise-statutory-claim/wrong-forum analysis because the claim filed in state court was not pleaded as arising under AIR21. On appeal, the Tenth Circuit held that because AIR21 completely preempted the state complaint, the state claim was an AIR21 complaint. Thus, the Complainant had stated the precise statutory claim in the wrong forum, and was entitled to equitable tolling.

TIMELINESS OF COMPLAINT; EQUITABLE MODIFICATION - PRECISE CLAIM IN WRONG FORUM; PASSING REFERENCE TO FRAUD, WASTE AND ABUSE REGULATION IN A COMPLAINT FILED WITH THE DEPARTMENT OF DEFENSE FOUND NOT TO BE AN AIR21 COMPLAINT AS A MATTER OF LAW

In Ferguson v. Boeing Co., ARB No. 04-084, ALJ No. 2004-AIR-5 (ARB Dec. 29, 2005), the issue before the ARB was whether the Complainant had established that there were any material facts relevant to the issue whether he mistakenly filed the precise statutory claim in the wrong forum when he filed a "Fraud, Waste, and Abuse Complaint" with the Department of Defense pursuant to 10 U.S.C.A § 2409 alleging, among other things, that a Boeing manager's fraud could put airmen's lives and others in jeopardy. The Board concluded that the Complainant's passing reference to putting lives in jeopardy is not sufficient, as a matter of law, to establish that the complaint filed with the Department of Defense constituted the precise statutory claim (i.e. an AIR 21 claim) filed in the wrong forum.

TIMELINESS OF COMPLAINT; ASSOCIATE SOLICITOR OF LABOR'S REFUSAL TO PERMIT OSHA TO PROVIDE AFFIDAVIT OR PERMIT TESTIMONY OF INVESTIGATOR CONCERNING DATE OF RECEIPT

In Hafer v. United Airlines, 2005-AIR-8 (ALJ Nov. 9, 2005), the Complainant had been awarded state workers' compensation benefits, and the Respondent - which was self-insured - failed to pay those benefits within the period allowed under state law. The Complainant testified that he filed in early August 2004 - both by fax and certified mail - a timely complaint with the San Francisco OSHA office alleging that the delay was in retaliation for whistleblower activity under AIR21. The Complainant testified that about five days after sending his complaint to OSHA, he received payment for the workers' compensation benefits, and about the next day he received a call from an OSHA investigator stating that he had received the AIR21 complaint. The Complainant testified that he told the OSHA investigator that he had received the payment and the investigator asked whether there was anything else that OSHA could help him with. The Complainant replied that he had still not received reimbursement for certain out-of-pocket medical expenses and that the Respondent was using incorrect wage-base data to compute his weekly disability benefits. According to the Complainant, the OSHA investigator told him to set forth those complaints in another letter and backdate it to date of the initial complaint. The Complainant testified that he followed that instruction and mailed the backdated letter in early September. OSHA investigated the matter, and when it issued its determination letter dismissing the complaint, it did not mention the workers' compensation issue and indicated that its determination was related to the letter received from the Complainant in September 2004.

Before the ALJ, the Respondent filed a motion to dismiss based on the contention that the state workers' compensation based complaint was time barred under AIR21.

Because the Complainant had submitted various documents indicating that he had mailed and faxed the workers' compensation based complaint to OSHA in August 2004, the ALJ wrote to the OSHA investigator asking that the OSHA file be checked. The ALJ also noted that the Complainant had alleged that the investigator had called him in August 2004 about the complaint. Because the investigator had accepted a new position, the Acting Regional Supervisory Investigator answered the ALJ's letter. She stated that OSHA's files contained no evidence that the Complainant had raised a workers' compensation based complaint until he had responded to an OSHA letter in October 2004. The ALJ found that there was a genuine issue of material fact concerning the date that the workers' compensation based complaint was first filed with OSHA, denied the Respondent's motion for summary decision, and scheduled a hearing. The Respondent named the Acting Regional Supervisory Investigator as a witness, and the Complaint named the original OSHA investigator as a witness. The ALJ therefore wrote to OSHA's regional administrator asking that the two OSHA officials be directed to appear as trial witnesses as their testimony would be "crucial." The ALJ offered to accommodate the witnesses by taking their testimony by telephone or in San Francisco (the hearing was to be in Long Beach). In addition, the ALJ requested a complete copy of OSHA's files concerning the matter.

The Acting Associate Solicitor for the Division of Management and Administrative Legal Services responded to the ALJ's request. Citing the "Touhy" regulations, the Acting Associate Solicitor denied the request for either OSHA official to testify. The letter stated that the rule when considering whether to permit DOL employee to furnish information in response to a subpoena or demand, it is necessary to balance a litigant's need for the testimony against the adverse effects on DOL's concerns (such as "centralizing the dissemination of information of the agency (e.g. restricting investigators from expressing opinions on policy matters), minimizing governmental involvement in controversial matters unrelated to official business and avoiding the expenditure of government time and money for private purposes"). The letter noted that the OSHA investigator's testimony was sought in response to the Complainant's allegation that the investigator had called in August about the workers' compensation based complaint, but without further explanation decided against permitting him to testify.

OSHA provided the portions of the Complainant's file that it found to be disclosable. That portion of the file did not show any filing by the Complainant in August 2004. OSHA was therefore asked to review the file again for any inadvertent omissions; the Acting Associate Solicitor thereafter sent an additional 201 pages of documents, which likewise contained no information indicating OSHA received any faxes or certified mail from the Complainant during August 2004.

At the hearing the Respondent contended that the information provided by OSHA showed that the Complainant did not timely file a state workers' compensation based complaint. The ALJ, however, found that a considerable amount of documentary evidence supported the Complainant's contention that he had timely filed such a complaint, including phone bills and certified mails receipts. The ALJ found the Complainant's testimony about the filing credible, noting that the Complainant would have been strongly motivated to file the workers' compensation based complaint because it involved a considerable amount of money and that the aforementioned documentation established that the Complainant sent something to OSHA in August 2004. Although the September filing bore an August 2004 date and did not mention the workers' compensation claim, the ALJ found that this was the letter sent backdated as suggested by the OSHA investigator. The ALJ found the Complainant's demeanor when testifying about this issue to be entirely credible, and enhanced by the fact that no one from DOL denied the Complainant's assertion that he discussed the workers' compensation based complaint with the OSHA investigator in August 2004. The ALJ wrote:

Indeed, the failure of the Acting Associate Solicitor for the Division of Management and Administrative Legal Services to provide an affidavit from Mr. Ricci or to even give a specific reason for refusing to permit Mr. Ricci to testify in this proceeding provides further justification for concluding that OSHA's San Francisco office simply does not want to admit that the Complainant has been telling the truth about when he first sent his VRMA complainant to OSHA. Obviously, OSHA would not want to verify the accuracy of the Complainant's testimony because any such verification would amount to an admission that OSHA has lost, hidden, or destroyed the Complainant's original complaint. Unfortunately, OSHA's refusal to acknowledge its deficiencies in its handling of this matter has imposed substantial and unnecessary burdens on the Complainant, the Respondent, and the Office of Administrative Law Judges. Even more significantly, it created an unconscionable risk that the Complainant's AIR21 complaint could have been unjustly rejected on the grounds that it was barred by the 90-day statute of limitations.

Slip op. at 12. Although the ALJ concluded that the workers' compensation based complaint had been timely filed, he ultimately found that the Complainant failed to show by a preponderance of the evidence that the reason for the delay in the payment was attributable to retaliatory motives rather than mere inadvertence and clerical errors.

TIMELINESS OF COMPLAINT: LETTER THAT MERELY CONFIRMS THAT ADVERSE ACTION STILL IN EFFECT

A complaint that revocation of the Complainant's retirement travel pass was in retaliation for safety complaints was not timely where the revocation occurred two years prior to the complaint; a more recent letter merely confirmed that the travel pass revocation was still in effect. Friday v. Northwest Airlines, Inc., ARB No. 03-132, ALJ Nos. 2003-AIR-19 and 20 (ARB July 29, 2005).

TIMELINESS OF FILING; EQUITABLE TOLLING; PRECISE STATUTORY CLAIM; MUST INDICATE INTENT TO PURSUE AN AIR21 COMPLAINT

In Turgeau v. The Nordam Group, ARB No. 04-005, ALJ No. 2003-AIR-41 (ARB Nov. 22, 2004), the ARB found that the Complainant was not entitled to equitable tolling of his untimely filling of his AIR21 complaint with OSHA under the "precise statutory claim" ground for such tolling. Complainant had filed a wrongful termination and a "failure to page wages" suit under Oklahoma state law. After removal to federal district court, the suit was dismissed on the ground that it was preempted by AIR21. The Complainant then filed a complaint with OSHA, well beyond the AIR21 limitations period, asserting that "[a]lthough filed in state court, [the Complainant's] Petition raised the identical claim at issue here, i.e., that he was fired from employment with [the Respondent] for reporting matters of FAA compliance and safety." The Board rejected this theory, finding that the Complainant had filed specific state claims, neither of which contained any indication that the Complainant intended to pursue a complaint pursuant to AIR 21.

TIMELINESS OF COMPLAINT; CONTINUING VIOLATIONS STANDARD FOR INCLUSION OF EVENTS OUTSIDE LIMITATIONS PERIOD; EVIDENTIARY VALUE OF EVENTS THAT ARE NOT ACTIONABLE BECAUSE THEY WERE NOT THE SUBJECT OF A TIMELY COMPLAINT

In Kinser v. Mesaba Aviation, Inc., 2003-AIR-7 (ALJ Feb. 9, 2004), the ALJ found that the continuing violations standard stated in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) was applicable for considering whether events outside the limitations period may be considered as timely raised in an AIR21 whistleblower complaint. Applying this standard, the ALJ found that events pleaded by the Complainant that occurred outside the 90 day limitations period were not actionable, as they each were isolated and disconnected events. The ALJ, however, held that those events contributed to the complete picture of the working relationship between the Complainant and his immediate supervisor, and therefore was relevant evidence pertaining to the timely-filed claims.

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM

In Turgeau v. The Nordam Group, Inc., 2003-AIR-41 (ALJ Oct. 30, 2003), the Complainant filed a retaliatory termination petition in Oklahoma state court, which the Respondent successfully removed to federal district court. The District Court thereafter granted the Respondent's motion to dismiss on the ground that AIR21 preempted the Complainant's original state law cause of action. Shortly thereafter the Complainant filed an AIR21 complaint with OSHA. Although the original state complaint had been filed within 90 days after the Complainant's discharge by the Respondent, almost 6 months had passed before the AIR21 complaint was filed with OSHA. Accordingly, the Respondent filed a motion for summary decision based on lack of timeliness.

In defense, the Complainant relied on the "precise statutory claim in the wrong forum" ground for equitable tolling. See Sch. Dist. of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981). The ALJ observed that the wrong forum equitable tolling standard has two corollaries: (1) that the claim filed in the wrong forum must have been filed within the time limits that would have applied had the complaint been filed in the correct forum, and (2) that the plaintiff must have used the same statutory foundation when filing both the original claim and the subsequently filed claim. In the instant case, the Complainant's filing in State court was well within the AIR21 90 day limitations period. In regard to the second corollary, the Complainant proffered that his AIR21 complaint is identical to the retaliatory termination complaint he filed in State court, both contending that he was fired by the Respondent because he reported violations of FAA requirements. The ALJ, however, found that the relevant case law "holds that more than the underlying facts must be identical. Rather, both claims must have been made under the same statute." The ALJ noted that the ARB had ruled on this very issue in Tierney v. Sun-Re Cheese, Inc., ARB No. 00-052, ALJ No. 2000-STA-12 (ARB Mar. 22, 2001). Because the original complaint was based on Oklahoma law and not AIR21, the "wrong forum" equitable tolling defense failed. The Complainant noted that another ALJ had ruled differently in Ford v. Northwest Airlines, Inc., 2002-AIR-21 (ALJ Oct. 18, 2002), but the ALJ respectfully disagreed with that decision.

Similarly, in Ferguson v. Boeing Co., 2004-AIR-5 (ALJ Apr. 5, 2004), the Complainant had filed a complaint with the Department of Defense OIG. When the Complainant later pursued his complaint with OSHA, the Deputy Regional Administrator applied the wrong forum equitable estoppel principle to find that the complaint was timely filed. The ALJ found:

[T]he Deputy Regional Administrator applied the third condition for collateral estoppel incorrectly. Among other things, he failed to consider that the initial complaint must have been filed in the wrong forum for equitable estoppel to be applicable. But the May 8, 2002 complaint was not filed in the wrong forum. Rather, the DoD IG was a proper forum for the complaint of retaliation due to whistleblowing, as the DoD IG took jurisdiction over the case and recently issued a decision denying the claim .... This is not a case where a complaint was filed in a forum where it was dismissed for lack of jurisdiction or improper venue. Instead, the complainant has had his claim adjudicated on the merits, and it was determined by the DoD IG that the complainant was disciplined for engaging in misconduct and violating Boeing's Expected Code of Conduct for its employees ..., not for the complaints he made regarding his supervisor's actions. Since the initial complaint was filed in a proper forum, equitable estoppel is inapplicable. Therefore, the complaint filed with OSHA was untimely, and this case must be dismissed.

TIMELINESS; BLACKLISTING

Applying National Railroad Passenger Corp. v. Morgan, 536 U.S. __, 122 S.Ct. 2061 (2002), the ALJ in Ford v. Northwest Airlines, Inc., 2002-AIR-21 (ALJ Oct. 18, 2002), determined that, where Complainant applied for jobs on separate, identifiable occasions, each occasion where Respondent allegedly made a blacklisting remark (and arguably on each occasion that a prospective employer remembered a prior blacklisting remark made by Respondent in refusing to hire Complainant) constituted a discrete act of blacklisting. Even if the events were interrelated and connected, there is no actionable "serial violation." The ALJ, however, remanded the case for an investigation into other, timely, allegations of blacklisting activity (OSHA had not earlier investigated these allegations, finding that the complaints were time barred).

TIMELINESS OF HEARING REQUEST

TIMELINESS OF REQUEST FOR HEARING; ASKING OSHA TO FORWARD LETTER TO OALJ DOES NOT PROVIDE EQUITABLE GROUNDS FOR TOLLING

TIMELINESS OF REQUEST FOR HEARING; DATE OF RECEIPT BY COMPLAINANT IS DATE OF DELIVERY TO LAST KNOW MAILING ADDRESS RATHER THAN ACTUAL RECEIPT

In Robinson v. Northwest Airlines, Inc., 2004-AIR-37 (ALJ Oct. 28, 2004), the ALJ interpreted the time period in which the Complainant must file any request for an ALJ hearing on an AIR21 complaint to be triggered by the date of delivery of the OSHA determination. The ALJ noted that the regulation requires a hearing request to be made within 30 days of receipt of the findings and preliminary order, but does not define the term "received." The ALJ concluded, however, date of delivery to the Complainant's address was the correct trigger given the regulatory requirement that OSHA send its decision by certified mail, and given the fact that a complainant could avoid service and hold open his ability to demand a hearing indefinitely if actual delivery was required. The ALJ also ruled that OSHA only needed to send the determination letter to the last know address.

[Editor's note: Compare Richards v. Lexmark International, Inc., 2004-SOX-49 (ALJ Oct. 1, 2004), which the ALJ found under similar SOX regulations that receipt rather than actual or constructive notice is the regulatory standard. In that case, the ALJ also considered whether presumptive receipt or actual or constructive notice was applicable and concluded that it was not under the facts of the case].

TIMELINESS OF HEARING REQUEST; 30 CALENDAR DAYS NOT EXTENDED BY 29 C.F.R. § 18.4(c)(3); LACK OF TIMELINESS NOT JURISDICTIONAL BAR BUT SUBJECT TO EQUITABLE TOLLING; LACK OF PREJUDICE STANDING ALONE DOES NOT SUPPORT EQUITABLE TOLLING

In Swint v. Net Jets Aviation, Inc., 2003-AIR-26 (ALJ July 9, 2003), appealed dismissed on basis of settlement, ARB No. 03-124, ALJ No. 2003-AIR-26 (ARB Nov. 25, 2003), the ALJ found that the OALJ Rules of Practice at 29 C.F.R. § 18.4(c)(3) did not operate to allow five additional days for the mailing of an objection to OSHA's findings on an AIR21 whistleblower complaint. In Swint, Complainant's objection was postmarked on the 32d day following receipt of OSHA's findings (which was one day outside the 30 day period provided for under the statute and regulation, as the 30th day fell on a Sunday). Complainant contended that section 18.4(c)(3) operated to allow five additional days for mailing. The ALJ, however, found that the plain language of both the statute and the regulation require objections and requests for hearings must be filed "within 30 days" or "not later than 30 days." Moreover, 29 C.F.R. § 1979.106(a) explicitly states that the date of postmark is considered the date of filing. The ALJ therefore found that the hearing request was untimely. The ALJ, however, rejected Respondent's contention that an untimely filing deprives OALJ of subject matter jurisdiction. Rather, the ALJ proceeded to consider whether grounds existed for equitable tolling and found that the circumstances of the case did not justify equitable relief. The ALJ rejected Complainant's argument that there would be no prejudice to Respondent to apply equitable tolling, noting caselaw to the effect that lack of prejudice cannot be the determining factor in permitting a late filing.

REQUEST FOR HEARING; TIMELINESS OF

In Bodine v. International Total Services, 2001-AIR-4 (ALJ Nov. 20, 2001), the ALJ recommended dismissal of the appeal as untimely where Respondent failed to submit objections to OSHA's Findings and Preliminary Order until over 35 days after OSHA's findings were served by certified mail. The AIR21 statute provides:

not later than 30 days after the date of notification of findings... either the person alleged to have committed the violation or the complainant may file objections to the findings or preliminary order, or both, and request a hearing on the record.

49 U.S.C. § 42121(B)(2)(a). If a party fails to request a hearing within the 30 day period, the preliminary order is deemed a final order that is not subject to judicial review. Id. In calculating the period for requesting review, the ALJ applied 29 C.F.R. § 18.43(c)(3) to add five days to the statutory filing period to account for mailing. The ALJ also provided Respondent the opportunity to state a ground for equitable tolling of the filing period, but it failed to respond.

HEARING REQUEST REQUIREMENTS

REQUEST FOR HEARING; FAILURE TO TIMELY SERVE OPPOSING PARTY

In Robinson v. Northwest Airlines, Inc.Robinson v. Northwest Airlines, Inc., 2004-AIR-37 (ALJ Oct. 28, 2004), the ALJ found that the Complainant's representative's failure to serve a letter to OALJ (which had been docketed as a request for hearing even though a hearing was not specifically requested in the letter) had caused no significant prejudice to the Respondent, and therefore did not provide sufficient grounds to dismiss the case. The ALJ, however, dismissed the case because the Complainant's response to the ALJ's order to show cause was that he did not want a hearing but only wanted the OSHA to do its job and investigate the complaint. The ALJ found that the response showed that the Complainant had not simply missed a technical nuance -- he never requested a hearing.

BURDEN OF PROOF AND PRODUCTION

ALJ'S LACK OF PRECISION IN ANALYTICAL FRAMEWORK COMPELLED REMAND

In Clemmons v. Ameristar Airways, Inc., ARB Nos. 05-048, 05-096, ALJ No. 2004-AIR-11 (ARB June 29, 2007), the ARB remanded for additional proceedings where the ALJ made four errors of law in analyzing the Complainant's AIR21 whistleblower complaint. Specifically, the ALJ erred when he (1) appeared to have merged the Respondent' burden of production with its later burden to prove by clear and convincing evidence that it would have taken the adverse action absent protected activity; (2) held that the Complainant proved a prima facie case by a preponderance of the evidence (rather, once a case has proceeded to hearing, a complainant's burden is to prove by a preponderance of evidence ("demonstrate") that the protected activity was a contributing factor in the alleged adverse action); (3) appeared to have found that a finding of pretext compels a finding of discrimination; and (4) failed to consider whether the Respondent proved that it would have terminated the Complainant absent protected activity. The ARB acknowledged that the ALJ's errors may have been simply imprecision; but that imprecision created uncertainty about the ALJ's findings that compelled a remand.

BURDEN TO SHOW THAT ALJ'S CREDIBILITY DETERMINATIONS WERE INCREDIBLE OR UNREASONABLE

Where an ALJ credits the testimony of the respondent's witnesses, a complainant who maintains on ARB review that those witnesses were not truthful has the burden of demonstrating that the ALJ's credibility determinations were incredible or unreasonable. Gary v. Chautauqua Airlines, ARB No. 04-112, 2003-AIR-38 (ARB Jan. 31, 2006) (citing Lockert v. U.S. Dept. of Labor, 867 F.2d 513, 519 (9th Cir. 1989).

BURDENS OF PROOF IN AIR21 WHISTLEBLOWER COMPLAINT; GENERAL OUTLINE

In Brune v. Horizon Air Industries, Inc., ARB No. 04-037, ALJ No. 2002-AIR-8 (ARB Jan. 31, 2006), the ARB restated the procedures and burdens of proof applicable to an AIR21 whistleblower complaint, which had earlier been detailed in Peck v. Safe Air Int'l, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3, slip op. at 6-18 (ARB Jan. 30, 2004). The Board distinguished the procedure followed at the OSHA investigatory stage and at the hearing stage before the OALJ and the ARB, with the essential difference being that to secure an investigation, a complainant needs only to raise an inference of unlawful discrimination (i.e., establish a prima facie case), while at the adjudicatory stage a complainant must prove unlawful discrimination. The ARB wrote that:

This is not to say, however, that the ALJ (or the ARB) should not employ, if appropriate, the established and familiar Title VII methodology for analyzing and discussing evidentiary burdens of proof in AIR21 cases. The Title VII burden shifting pretext framework is warranted where the complainant initially makes an inferential case of discrimination by means of circumstantial evidence. The ALJ (and ARB) may then examine the legitimacy of the employer's articulated reasons for the adverse personnel action in the course of concluding whether a complainant has proved by a preponderance of the evidence that protected activity contributed to the adverse action.
Thereafter, and only if the complainant has proven discrimination by a preponderance of evidence and not merely established a prima facie case, does the employer face a burden of proof. That is, the employer may avoid liability if it "demonstrates by clear and convincing evidence" that it would have taken the same adverse action in any event.

Brune, supra, slip op. at 13-14 (footnotes omitted). In Brune, the ALJ erred in that he required the Complainant to prove his case according to the prima facie case standard, rather than the preponderance of the evidence standard. It is not enough at the hearing phase for a complainant merely to establish a rebuttable presumption that the employer discriminated. Rather, a complainant must prove by a preponderance of the evidence protected activity, adverse action and causation.

The ALJ also erred because, once the Complainant established a prima facie case, the ALJ assigned the Respondent the burden of demonstrating by clear and convincing evidence that it would have taken the same adverse personnel action in the absence of his employee's protected activity. Rather, a respondent's burden upon a complainant's establishment of a prima face case is one of production, not proof -- the respondent needs only to articulate some legitimate, non-discriminatory reason for its actions -- the respondent's "clear and convincing evidence" burden of proof only arises if the complainant has proven discrimination by a preponderance of the evidence.

APPLICABLE DECISIONAL LAW; BURDENS OF PROOF AND PRODUCTION

In Davis v. United Airlines, Inc., 2001-AIR-5 (ALJ July 25, 2002), the ALJ reviewed the legislative history of AIR21's whistleblower provision, and concluded that the decisional law developed under the ERA, the Whistleblower Protection Act, and the whistleblower provisions of federal environmental statutes, provide the framework for litigation arising under AIR21.

The ALJ then set out a statement of the burden of proof standards, similar to the statement of such by the ALJ in Taylor v. Express One International, Inc., 2001-AIR-2 (ALJ Feb. 15, 2002) , with some additional clarifications. For example, the ALJ noted that the "contributing factor" element is only applicable to the establishment of a prima facie case.

BURDEN OF PROOF AND PRODUCTION IN AIR21 CASES; TITLE VII METHODOLOGY

In Peck v. Safe Air International, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3 (ARB Jan. 30, 2004), the ARB outlined the scope of coverage, procedures, and burdens of proof under the AIR21 whistleblower provision. The Board emphasized that the law imposes a "gatekeeper" standard prior to hearing during the preliminary stage of the proceeding -- the required "prima face showing" of section 42121(b)(2)(B)(i). The standard that ALJs apply at hearing and that the ARB applies on review, however, is as follows: "If a complainant 'demonstrates,'i.e., proves by a preponderance of the evidence, that protected activity was a 'contributing factor' that motivated a respondent to take adverse action against him, then the complainant has established a violation of AIR21 section 519(a). 49 U.S.C.A. § 42121(b)(2)(B)(iii)." (citation omitted). The Board wrote that

The distinction, then, between standards applied for purposes of investigation and adjudication of a complaint concerns the complainant's burden: To secure investigation a complainant merely must raise an inference of unlawful discrimination; to prevail in an adjudication a complainant must prove unlawful discrimination.

The ARB also observed that the AIR21 whistleblower provision was modeled on section 211 of the ERA, and that the ARB had found in Kester v. Carolina Power & Light Co., ARB No. 02-007, ALJ No. 2000-ERA-31, slip op. at 5-8 and nn.12-19 (ARB Sept. 30, 2003), that the Title VII methodology for analyzing and discussing evidentiary burdens of proof was appropriate to use in ERA section 211 cases. The ARB, quoting its decision in Kester, wrote:

"[T]he Title VII burden shifting pretext framework [is] warranted in [the] typical [ERA] whistleblower case where the complainant initially makes an inferential case of discrimination by means of circumstantial evidence." Id. at 7 n.17. The ARB may thus examine the legitimacy of the employer's articulated reasons for the adverse personnel action in the course of concluding whether a complainant in an ERA case has proved by a preponderance of the evidence that protected activity contributed to the dismissal. Id. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Unless a complainant proves that the employer fired him in part because of his protected activity, it is unnecessary to proceed to determine whether the employer has demonstrated by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity. Kester, slip op. at 8.

The Board then held that the same approach is applicable under AIR21 section 519. See 49 U.S.C.A. § 42121(b)(2)(B)(iii)-(iv).

ADVERSE EMPLOYMENT ACTION

ADVERSE ACTION; ARB FINDS THAT THE BURLINGTON NORTHERN "MATERIALLY ADVERSE" STANDARD APPLIES TO THE STAA AND ALL OF THE EMPLOYMENT PROTECTION STATUTES ADJUDICATED BY THE DEPARTMENT OF LABOR

In Melton v. Yellow Transportation, Inc., ARB No. 06-052, ALJ No. 2005-STA-2 (ARB Sept. 30, 2008), the ARB addressed the Complainant's request on appeal to abandon the "tangible employment consequence" test, and to adopt instead the deterrence standard of Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). In Melton, the Complainant had been issued a warning letter in which the Respondent admonished the Complainant not to use fatigue as a subterfuge to avoid work. Both the Respondent and union witnesses testified that a single warning letter was corrective action, and although it was a pre-condition to most discipline, it was not itself discipline. The letter had no effect on hours, work assignments, pay, opportunities for advancement, or retirement benefits. All members of the Board agreed that under ARB precedent, such a warning letter would not be considered adverse employment action. The panel, however, spilt on the issue of whether the Burlington Northern "materially adverse" standard should now apply to an STAA whistleblower case (as well as all of the other anti-retaliation laws adjudicated before the DOL). A two-member majority found that it does. The majority wrote:

Burlington Northern held that for the employer action to be deemed "materially adverse," it must be such that it "could well dissuade a reasonable worker from making or supporting a charge of discrimination." For purposes of the retaliation statutes that the Labor Department adjudicates, the test is whether the employer action could dissuade a reasonable worker from engaging in protected activity. According to the Court, a "reasonable worker" is a "reasonable person in the plaintiff's position."

USDOL/OALJ Reporter at 19-20 (footnotes omitted). The majority stated that "the purpose of the employee protections that the Labor Department administers is to encourage employees to freely report noncompliance with safety, environmental, or securities regulations and thus protect the public. Therefore, we think that testing the employer's action by whether it would deter a similarly situated person from reporting a safety or environmental or securities concern effectively promotes the purpose of the anti-retaliation statutes." Id. at 20. Moreover, it stated that both ARB and federal case law demonstrated that the terms "tangible consequences" and "materially adverse" are "used interchangeably to describe the level of severity an employer's action must reach before it is actionable adverse employment action." Id. The majority summarized:

The Board has consistently recognized that not every action taken by an employer that renders an employee unhappy constitutes an adverse employment action. The employee protections that the Labor Department administers are not "general civility codes," nor do they make ordinary tribulations of the workplace actionable. Actions that cause the employee only temporary unhappiness do not have an adverse effect on compensation, terms, conditions, or privileges of employment. Therefore, the fact that the Burlington Northern test is phrased in terms of "materially adverse" rather than "tangible consequence," or "significant change," or "materially disadvantaged," or the like, is of no consequence. Applying this test would not deviate from past precedent. Like the Burlington Northern Court, our task has always been, and will continue to be, to separate harmful employer action from petty, minor workplace tribulations.

Id. at 23 (footnotes omitted). Applying the standard, the majority held that the warning letter in the instant case "was not materially adverse because the record demonstrates that it did not affect his pay, terms, or privileges of employment, did not lead to discipline, and was removed from his personnel file without consequences. Therefore, under the particular facts and circumstances presented here, the warning letter at issue would not dissuade a reasonable employee from refusing to drive because of fatigue." Id. at 24.

ADVERSE EMPLOYMENT ACTION; WARNING LETTERS; COMPLAINANT MUST SHOW THAT LETTER AFFECTED TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT

Warning letters do not meet the adverse action requirement of the whistleblower statutes because they do not have any tangible job consequences. Written reprimands under a progressive discipline system do not have tangible job consequences and could lead to corrected performance. The burden rests on the complainant to demonstrate that the personnel action in question is adverse. The complainant must show that the warning letter affected the terms, conditions or privileges of employment. Simpson v. United Parcel Service, ARB No. 06-065, ALJ No. 2005-AIR-31 (ARB Mar. 14, 2008).

ADVERSE ACTION; REJECTION OF TANGIBLE CONSEQUENCE STANDARD; ADOPTION OF MATERIALLY ADVERSE STANDARD

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int’l Union (PACE), ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), the ARB retreated from the “tangible consequence” standard for actionable adverse employment action. Rather, the ARB stated that the correct standard, as clarified by the Supreme Court in Burlington Northern Ry. Co. v. White, 548 U.S. __, 126 S.Ct. 2405, 2409 (2006), is whether the actions were “materially adverse”: that is, “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Slip op. at 12, quoting Burlington. The ARB noted that it had already applied this standard to AIR21 cases, and that it is also appropriate to apply it to cases arising under SOX and the environmental acts. In the instant case, the ARB found that it was possible that the Complainant’s allegations meet the Burlington standard, even if they did not rise to the level of a “tangible consequence” (which was the standard applied by the ALJ in her 2004 decision).

ADVERSE ACTION; ADOPTION OF BURLINGTON NORTHERN "MATERIALLY ADVERSE" STANDARD; EMPLOYER'S IMMEDIATE RESCINDING OF DISCHARGE

In Hirst v. Southeast Airlines, Inc., ARB Nos. 04-116, 04-160, ALJ No. 2003-AIR-47 (ARB Jan. 31, 2007), PDF | HTM the ARB found that it was bound to accept the ALJ's finding that the Complainant had been discharged because it was supported by substantial evidence.

Applying a recent Supreme Court Title VII decision to to STAA whistleblower provision, however, the ARB held that the Complainant had not established that he suffered adverse employment action. See Burlington Northern & Santa Fe Ry. Co. v. White, --- U.S. ----, 126 S. Ct. 2405 (June 22, 2006). The ARB cited the Supreme Court's ruling that a Title VII plaintiff must show that a reasonable employee or job applicant would find the employer's action "materially adverse," i.e., "the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." USDOL/OALJ Reporter at 10-11, quoting 126 S. Ct. at 2409.

In Hirst, the ARB found that a reasonable employee would have concluded that though the Respondent's Director of Operations acted hastily and retaliated against the Complainant for refusing to pilot a flight, the Respondent's officials, including the Director of Operations:

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 [Southeast Airlines] 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.

USDOL/OALJ Reporter at 12.

AIR21 IS NOT RETROACTIVE TO COVER ADVERSE ACTIONS THAT OCCURRED BEFORE ITS EFFECTIVE DATE

THE CONTINUING VIOLATION THEORY HAS BEEN REJECTED IN ENVIRONMENTAL WHISTLEBLOWER CASES, AND THIS REJECTION ALSO APPLIES TO AIR21 CASES

HOSTILE WORK ENVIRONMENT; ALJ MUST APPLY CRITERIA ENUNCIATED IN SASSE v. U.S. OFFICE OF THE UNITED STATES ATTORNEY, AS CLARIFIED BY BELT v. USDOL

In Brune v. Horizon Air Industries, Inc., ARB No. 04-037, ALJ No. 2002-AIR-8 (ARB Jan. 31, 2006), the Complainant had alleged a series of adverse actions from 1999-2001 in retaliation for activity protected under AIR21, and timely filed his AIR21 complaint following a May 7, 2001 "write-up" memorandum. The ALJ found that all of the alleged actions were actionable because (1) the May 7, 2001 memorandum incorporated all "previous counseling," (2) there had been a "continuing violation," and (3) there had been a hostile work environment.

The ARB found that the ALJ misapplied the law. First, AIR21 became effective on October 1, 1999. Two of the alleged actions occurred before this date and were therefore outside the reach of AIR21.

Second, although some older decisions recognized the continuing violation theory, the Supreme Court in National R.R. Passenger Corp. v. Morgan, 536 U.S. 114-115 (2002) rejected that theory in Title VII cases. The ARB had previously held a number of times that Morgan applies to the environmental whistleblower statutes, and found no reason that those holdings should not apply to AIR21.

Third, the ALJ did not apply the criteria for applying the hostile work environment theory that the ARB had recently enunciated in Sasse v. Office of the United States Attorney, ARB Nos. 02-077, 02-078, 03-044, ALJ No. 1998-CAA-7, slip op. at 34-35 (ARB Jan. 30, 2004), aff'd sub nom Sasse v. United States Dept. of Labor, 409 F.3d 773 (6th Cir. 2005). Specifically -- assuming that the hostile work environment theory applied because the alleged acts were not discrete and were in fact adverse employment actions -- the ALJ had failed to make findings on whether the Respondent intentionally harassed the Complainant, the extent of the harassment, whether the alleged harassment was severe or pervasive enough to change the conditions of the Complainant's employment and create an abusive working environment, or whether the harassment would have had any detrimental effect on a reasonable person and whether it did have such an effect on the Complainant.

In a footnote, the ARB clarified the Sasse standard based on the recent ruling in Belt v. United States Dept. of Labor, 2006 WL 197385 (6th Cir. Jan. 25, 2006). The ARB had stated in Sasse that "[t]o prevail on a hostile work environment claim, the complainant must establish that the conduct complained of was extremely serious or serious and pervasive." The ARB agreed with the Sixth Circuit that "the more precise articulation of the standard is whether the objectionable conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, rather than whether the conduct was 'extremely serious or serious and pervasive.' 2006 WL 199735 *6."

CONSTRUCTIVE DISCHARGE; REASSIGNMENT RESULTING IN DRASTIC INCREASE IN COMMUTING TIME AND UNREIMBURSED COSTS

In Vieques Air Link, Inc. v. USDOL, No. 05-01278 (1st Cir. Feb. 2, 2006) (per curiam) (available at 2006 WL 247886) (case below ARB No. 04-021, ALJ No. 2003-AIR-10), the First Circuit affirmed the ARB decision adopting the ALJ's recommended decision, finding that substantial evidence supported the ALJ's findings. In regard to the adverse employment action element of the cause of action, the court affirmed the ALJ's finding that the Complainant had been constructively discharged. The Respondent, an island air service, reassigned the Complainant - a pilot -- with the result that he would have to begin his flight schedule from an island other than where he lived. The Complainant repeatedly requested assistance from the Respondent in getting to the work station but received no response. The Complainant showed up for work at a local airport with the hope that the airline would assist him in getting to the work station, but was not assisted. The Respondent argued that the Complainant could have secured overnight accommodations near the new assignment, but the ALJ credited the Complainant's testimony that he could not afford the additional costs associated with the overnight accommodations given that he had to maintain his original residence for his young family. The court quoted Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 120 (1st Cir. 1977) (footnote omitted): "Doubtless a drastic increase in commuting time and unreimbursed costs might at some point become sufficiently onerous to justify an employee in quitting." The court found that substantial evidence supported the ALJ's conclusion that the transfer imposed such conditions on the Complainant and amounted to a constructive discharge.

ADVERSE EMPLOYMENT ACTION; THREAT UNRELATED TO COMPENSATION, TERMS, CONDITIONS OR PRIVILEGES OF EMPLOYMENT RELATIONSHIP

The Respondent's letter to the Complainant threatening to report him for the unauthorized practice of law if he appeared as a representative in a worker's grievance proceeding was not adverse action under AIR 21; the letter was not related to the Complainant's compensation, terms, conditions, or privileges as a medically-retired former employee of the Respondent. Friday v. Northwest Airlines, Inc., ARB No. 03-132, ALJ Nos. 2003-AIR-19 and 20 (ARB July 29, 2005).

ADVERSE EMPLOYMENT ACTION: MERE THEORETICAL POSSIBILITY OF ADVERSE ACTION DOES NOT CONSTITUTE A COGNIZABLE COMPLAINT

The Complainant, a medically disabled retiree, was banned from the Respondent's property and argued that the ban was related to compensation, terms, conditions, or privileges of his employment relationship with the Respondent because it would prevent him from returning to work. The ALJ found that this was not a cognizable ground to establish an adverse employment action, being based on "a theoretical argument based on a theoretical fact which may never occur." The ARB affirmed. Friday v. Northwest Airlines, Inc., ARB No. 03-132, ALJ Nos. 2003-AIR-19 and 20 (ARB July 29, 2005).

ADVERSE EMPLOYMENT ACTIONS IN THE CONTEXT OF A RETIRED EMPLOYEE

In Friday v. Northwest Airlines, Inc., 2003-AIR-19 and 20 (ALJ June 27, 2003), errata (ALJ July 17, 2003), the Complainant, an airline pilot who had voluntarily taken a disability retirement, contended that the Respondent had threatened him with arrest for the unlicensed practice of law and banned him from its property in retaliation for a prior AIR21 complaint and for acting as a witness in another employee's labor grievance arbitration proceeding. The ALJ observed that the AIR21 regulations define "employee" to mean "an individual presently or formerly working for an air carrier...." 29 C.F.R. § 1979.101. Citing case law decided under similar whistleblower laws, the ALJ concluded that in AIR21 cases "complainants who are former employees are subject to unfavorable personnel actions when the alleged retaliatory act is related to or arises out of the employment relationship in some way." Slip op. at 8 (citations omitted). Thus, in the instant case, the Complainant's burden was to establish that the Respondent's actions "were in some way related to the 'compensation, terms, conditions, or privileges' which arise from [the Complainant's] relationship with [the Respondent] as a medically retired former employee." Slip op. at 9. The ALJ found that the threat to inform a county attorney of a possible unlicensed practice of law had not been shown to constitute an adverse personnel action. The ALJ also agreed with the Respondent that the property ban was unrelated to a present employment relationship or to the compensation, terms, conditions, or privileges owed to a retired employee.

ADVERSE EMPLOYMENT ACTION; TEMPORARY AND MINIMAL CHANGES IN CONDITIONS OF EMPLOYMENT DURING PERSONNEL INVESTIGATION

In Majali v. Airtran Airlines, 2003-AIR-45 (ALJ Aug. 10, 2004), the Complainant asserted that when he went to work on an unscheduled work day following a vacation, his key would not permit access to the building, he found his desk occupied, and his access to the computer was denied when he attempted to log on. Later that day, the Complainant was directed not to report to work as regularly scheduled but instead to report the following day to a meeting to discuss his failure to report for work for three days following the end of the vacation. Although denied by his supervisor, the Complainant alleged that on the day he returned to work he was directed to wait outside the building to be escorted. Following the meeting, the Complainant believed that he would be contacted by the human resources department the following day, but he was not. The Complainant had also heard rumors that his job was in jeopardy. The Complainant alleged before the ALJ that these circumstances were tantamount to a constructive discharge or an actionable change in the conditions of employment.

The ALJ found that neither ground was actionable. The ALJ found that it was not clear that the Respondent had intentionally prevented the Complainant's entry or access, that desks were frequently shared and the Complainant had not been scheduled to work the day that it was occupied, and there was no indication that the restricted access was more than temporary. The ALJ found that although the Complainant reasonably may have believed that his job was in jeopardy, he may have been able to straighten out the situation if he had allowed the internal disciplinary process to work. The ALJ found that the conditions of employment had only been temporarily and minimally changed during the course of a personnel investigation in a manner consistent with the Respondent's usual procedures. The ALJ also noted that the Complainant had remained in pay status.

ADVERSE EMPLOYMENT ACTION; COMPLAINANT PLACED IN UNPAID STATUS AFTER FAILURE TO RETURN TO WORK

In Majali v. Airtran Airlines, 2003-AIR-45 (ALJ Aug. 10, 2004), the Complainant was directed to attend a meeting with human resources following an absence. At the meeting the Complainant indicated that he would like to return to work for the Respondent; however, two days later the Complainant's attorney wrote to the Respondent informing that the Complainant believed that he had been constructively discharged, was seeking a severance package, and was unwilling to accept reinstatement as a solution. The Employer replied to the attorney inviting the Complainant to return to work by a stated date, and denying the existence of a constructive discharge. When the Complainant did not return to work on the date specified, the Respondent put the Complainant on unpaid leave.

The ALJ noted that these circumstances were similar to those in Smith v. Western Sales & Testing, ARB No. 02-080, 2001-CAA-17 (ARB Mar. 31, 2004), and that it could not be found, therefore, that the Complainant had been constructively discharged by the Respondent. Nonetheless, the ALJ observed that the AIR21 regulations defined adverse action broadly to include "any change with respect to compensation, terms, conditions, or privileges of employment." The ALJ found that a suspension placing an employee in nonpay status is an adverse action under this broad definition.

ADVERSE ACTION; FILING A MOTION FOR SANCTIONS AGAINST COMPLAINANT IS NOT, IN ITSELF, ADVERSE EMPLOYMENT ACTION

In Powers v. Pinnacle Airlines, Inc., 2004-AIR-6 (ALJ Dec. 16, 2003), Complainant alleged, inter alia, that Respondent retaliated against her by "illegally" asking for monetary sanctions against her in another case pending at the time (2003-AIR-12). The ALJ ruled that requesting sanctions for Complainant's refusal to cooperate in discovery did not in itself constitute an adverse employment action, and that where Complainant had not alleged any tangible job consequences, Complainant had not stated a claim of action against Respondent with respect to this allegation.

ADVERSE EMPLOYMENT ACTION AND THE TANGIBLE CONSEQUENCES EXCEPTION

In Daniel v. TIMCO Aviation Services, Inc., 2002-AIR-26 (ALJ June 11, 2003), the ALJ noted caselaw in DOL whistleblower proceedings indicating that"absent a showing of 'tangible consequences' such as demotion, neither discriminatory oral criticism nor negative written evaluations can be considered actionable adverse actions." The ALJ observed that the the source of this DOL caselaw is Title VII race discrimination cases, and analyzed whether such cases truly provide valid guidance in whistleblower protection cases. Pointing out differences between the purposes of race discrimination cases and whistleblower cases, the ALJ observed that

considering the objectives of the whistleblower enactments, it seems appropriate to suggest that a "tangible consequence" in these types of cases is not merely one which impacts the worker's narrow pecuniary interests, but one which is likely to stifle precisely the sort of behavior Congress intended to encourage, i.e. a "tangible consequence" in a whistleblower context is one which is reasonably likely to dissuade potential whistleblowers from getting involved in allegedly protected activity; a "consequence" which not only impacts the worker's economic interests immediately as in a Title VII setting, but one designed to counteract a worker's incentive to engage in activities Congress sought to encourage.

In Daniel, however, the evidence adduced at the hearing established that Respondent's written reprimand was a non-discriminatory application of a policy designed to hold employees accountable for their inspections, and therefore not actionable.

[Compare the "tangible consequences" rulings in this newsletter, Gutierrez v. Regents of the University of California, ARB No. 99-116, ALJ No. 1998-ERA-19 (ARB Nov. 13, 2002) [Nuclear & Environmental Whistleblower Digest XIII B 17];Jenkins v. United States Environmental Protection Agency, ARB No. 98-146, ALJ No. 1988-SWD-2 (ARB Feb. 28, 2003) [Nuclear & Environmental Whistleblower Digest XIII A and XIII B 18]; Calhoun v. United Parcel Service, ARB No. 00-026, ALJ No. 1999-STA-7 (ARB Nov. 27, 2002) [STAA Whistleblower Digest VI B 4].]

CONSTRUCTIVE DISCHARGE IN TITLE VII CASES; PLAINTIFF'S BURDEN OF PROOF; AVAILABILITY OF THE ELLERTH/FARAGHER AFFIRMATIVE DEFENSE

In Pennsylvania State Police v. Suders, __ U.S. __, No. 03-95 (June 14, 2004), the U.S. Supreme Court rejected a Third Circuit decision under Title VII that a constructive discharge, if proven, constitutes a tangible employment action that renders an employer strictly liable and precludes recourse to the Ellerth/Faragher affirmative defense. Justice Ginsburg wrote:

Plaintiff-respondent Nancy Drew Suders alleged sexually harassing conduct by her supervisors, officers of the Pennsylvania State Police (PSP), of such severity she was forced to resign. The question presented concerns the proof burdens parties bear when a sexual harassment/constructive discharge claim of that character is asserted under Title VII of the Civil Rights Act of 1964.
To establish hostile work environment, plaintiffs like Suders must show harassing behavior "sufficiently severe or pervasive to alter the conditions of [their] employment." Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 67 (1986) (internal quotation marks omitted); see Harris v. Forklift Systems, Inc., 510 U. S. 17, 22 (1993) ("[T]he very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their . . . gender . . . offends Title VII's broad rule of workplace equality."). Beyond that, we hold, to establish "constructive discharge," the plaintiff must make a further showing: She must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. An employer may defend against such a claim by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus. This affirmative defense will not be available to the employer, however, if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions. In so ruling today, we follow the path marked by our 1998 decisions in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, and Faragher v. Boca Raton, 524 U.S. 775.

See also Williams v. Administrative Review Board, USDOL, __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004), 5th Cir. decision on applicability of Ellerth/Faragher hostile work environment analysis to ERA whistleblower complaints

CAUSATION

CAUSATION; DELAY BETWEEN PROTECTED ACTIVITY AND TERMINATION DOES NOT, STANDING ALONE, ESTABLISH THAT THE RESPONDENT USED DELAY AS A PLOY

In Majali v. Airtran Airlines, ARB No. 04-163, ALJ No. 2003-AIR-45 (ARB Oct. 31, 2007), the ARB rejected the Complainant's argument that the Respondent delayed the termination purposely so that it could argue that there had been a time lapse between the protected activity and termination, where aside from the delay itself, the Complainant provided no evidence to support his theory that the Respondent's delay was a mere ploy to provide immunity from suit. The ARB stated that "[a] long delay between protected activity and termination does not prove causation, but rather generally makes causation less likely. Absent any evidence to support [the Complainant's] theory, we conclude that the long delay is not itself evidence of causation." USDOL/OALJ Reporter at 13.

TEMPORAL PROXIMITY; INTERVENING EVENT REBUTS PRESUMPTION

In Clark v. Pace Airlines, Inc., ARB No. 04-150, ALJ No. 2003-AIR-28 (ARB Nov. 30, 2006), PDF | HTM the ARB summarized the law concerning proof of causation through temporal proximity: "Retaliatory motive may be inferred when an adverse action closely follows protected activity. An inference of discrimination, i.e., the protected activity contributed to the adverse action, is less likely to arise as the time between the adverse action and the protected activity increases. But if an intervening event that independently could have caused the adverse action separates the protected activity and the adverse action, the inference of causation is compromised." USDOL/OALJ Reporter at 12 (footnotes omitted).

In Clark, the ARB found that the Complainant's conduct during a flight in which the aircraft had been out of radio contact with Air Traffic Control (the event which the Respondent proffered as the legitimate non-discriminatory reason for firing the Complainant) was an independent intervening event that rebutted the Complainant's argument that he proved discrimination because of temporal proximity. The ARB also found that substantial evidence supported the ALJ's finding that the Complainant had not established pretext.

CAUSATION; BURDEN TO SHOW THAT PERSON WHO FIRED THE COMPLAINANT KNEW ABOUT THE PROTECTED ACTIVITY

In Gary v. Chautauqua Airlines, ARB No. 04-112, 2003-AIR-38 (ARB Jan. 31, 2006), the ARB found that substantial evidence supported the ALJ's finding that the Complainant did not adequately prove that the Respondent's Director of Pilot Training knew about the Complainant's protected activity (filing a prior whistleblower lawsuit against another airline) when he fired the Complainant for inadequate performance in a training program. The Complainant alleged that he had told the Respondent's recruiter about his prior whistleblower suit at an interview (which the recruiter denied), and that the Respondent must have been aware of it because it had contacted the prior airline when conducting a background investigation. The ARB found that even if the recruiter knew about the prior whistleblower suit, the Complainant's burden was to show that the Director of Training knew about it. The Director of Training had testified that he did not know about the prior lawsuit until after the Complainant filed the instant AIR21 suit, and the recruiter testified that she had not told the Director of Training anything about the prior airline's response to the background investigation. The Complainant argued that it was improbable that the Respondent did not know of the prior suit because it was "standard practice" for airline companies to divulge such information. The ARB, however, observed that the Complainant had offered no proof to support these assertions. Moreover, the ALJ had found the recruiter and Director of Training to be credible witnesses, and the Complainant had not demonstrated that the ALJ's credibility determinations were incredible or unreasonable. Finally, the Complainant did not assert until the hearing that he had told the recruiter about the prior lawsuit.

CAUSATION; SIX MONTH INTERVAL BETWEEN PROTECED ACTIVITY AND ADVERSE ACTION; INTERVENING EVENTS MAY BREAK INFERENCE OF LINK

In Robinson v. Northwest Airlines, Inc., ARB No. 04-041, ALJ No. 2003-AIR-22 (ARB Nov. 30, 2005), the Complainant argued that the timing of the decision to refer him for a medical examination established a causal connection between this action and his protected activity. The ARB found, however, that events occurring in the six month interval could have independently supported the adverse action. The Board wrote:

While an inference of discrimination may arise when the adverse action closely follows protected activity, temporal proximity is not always dispositive. Thompson v. Houston Lighting & Power Co., ARB No. 98-101, ALJ Nos. 96-ERA-34, 38, slip op. at 6-7 (Mar. 30, 2001); cf. Svendsen v. Air Methods, Inc., ARB No. 03-074, ALJ No. 02-AIR-16, slip op. at 8 (Aug. 26, 2004). For example, where the protected activity and the adverse action are separated by an intervening event that independently could have caused the adverse action, there is no longer a logical reason to infer a causal relationship between the activity and the adverse action. Tracanna v. Arctic Slope Inspection Service, ARB No. 98-168, ALJ No. 97-WPC-1, slip op. at 8 (ARB July 31, 2001).

USDOL-OALJ Reporter at 9.

RETALIATORY INTENT; EVIDENCE ESTABLISHING THAT COMPLAINANT'S MANNER OF RAISING THE COMPLAINT, RATHER THAN THE FACT THAT HE HAD RAISED THE COMPLAINT, CAUSED THE ADVERSE EMPLOYMENT ACTION

In Svendsen v. Air Methods, Inc., ARB No. 03-074, 2002-AIR-16 (ARB Aug. 26, 2004), the ARB adopted the ALJ's finding that the Complainant's safety concern was protected activity, but that a preponderance of the evidence established that it was the belligerent and unprofessional manner in which the Complainant raised the concern -- and not the report of safety concern itself -- that caused the Complainant's firing. The ARB noted that the issue of retaliatory intent requires careful examination. Although temporal proximity supported the Complainant's case, the Respondent had established a history of complaints about the Complainant's poor interpersonal skills and unprofessional conduct, and established that it was the Complainant's loud and belligerent manner in which he raised the concern rather than the fact that he had raised a safety concern that caused his termination.

CAUSATION; INCONSISTENCIES BETWEEN FORMAL PERFORMANCE APPRAISALS AND ULTIMATE SELECTION FOR LAYOFF DOES NOT CARRY BURDEN OF PROOF WHERE PROTECTED ACTIVITY DID NOT FACTOR INTO THE LAYOFF DECISION

In Parshley v. America West Airlines, 2002-AIR-10 (ALJ Aug. 5, 2002), the Complainant was selected for layoff during a company-wide cost reduction program based on performance issues. The ALJ found that both Complainant and her supervisor gave mostly credible testimony about the circumstances leading to the layoff. Ultimately, Complainant was unable to show by a preponderance of the evidence that her protected activity contributed in any manner to the decision to layoff Complainant. Although Respondent's articulated reason for termination -- the cost reduction program -- seemed to be undercut by evidence that Complainant's position was filled by a new employee within a few weeks, the ALJ also found credible evidence that Respondent had been able to obtain payroll savings in other areas to offset the new hire. With the initiation of the cost reduction program, Complainant's supervisor had been under pressure to improve the business effectiveness and customer service on his financial group. The record was well documented that Complainant's supervisor had received repeated complaints about Complainant's difficulties in interacting with the financial group's "customers" within the company. Thus, in spite of the fact that there were inconsistencies between Complainant's formal performance appraisals, advancement in the company, and subsequent selection for termination on the basis of performance, the ALJ found that Complainant had not carried her burden of proof. In sum, the ALJ found that although Complainant had mentioned an issue to her supervisor about a problem with FAA-required serviceable tags for aircraft parts in inventory, she did not highlight the problem as a safety issue, and that from the supervisor's perspective, the conversation was an ordinary business exchange -- not involving safety issues -- which played no part in his decision to terminate Complainant's employment.

INSUBORDINATION; FACTS OF INDIVIDUAL CASES IMPORTANT

In Herchak v. American West Airlines, Inc., 2002-AIR-12 (ALJ Jan. 27, 2003) and Lawson v. United Airlines, Inc., 2002-AIR-6 (ALJ Dec. 20, 2002), two different ALJs considered the issue of whether an employee's behavior during the raising of safety concerns was the cause of adverse employment action, and came to very different conclusions based on the individual facts of the cases.

In Herchak, the Complainant, a pilot, had raised concerns since 1995 about fatigue, fatigue pairing, inaccurate timekeeping, and other matters with both Respondent's management and the FAA. The ALJ heard testimony of at least 10 active pilots other than Complainant who all made numerous safety complaints but were not disciplined for expressing such concerns. Complainant, however, had a disciplinary letter placed in his personnel record based on a finding that he continued to pursue a complaint about a scheduling error for no purpose other than to "accuse, intimidate and abuse" the employee who had made the mistake, even after the problem had been remedied and an apology issued. Based on a review of the entire record, the ALJ concluded that it was not Complainant's message that had gotten him into trouble, but the confrontational style he used in delivering the message, with the event leading up to issuance of the disciplinary letter being the "final straw."

In contrast, in Lawson, Complainant, a mechanic, refused to drop a concern he had about a supervisor's actions during a mechanical repair that had resulted in a dangerous situation for Complainant's work partner. Convinced that Respondent had failed to seriously respond to the concern and based on his belief that the supervisor made misrepresentations, Complainant persisted in seeking answers. On several occasions, Complainant used offensive, abrasive and foul language directed at the supervisor. The matter culminated with Complainant's termination from employment following an encounter in a break room when Complainant swore at and insulted the supervisor, and Complainant later refused to leave the break room for between three to five minutes to attend an "investigation" of the encounter. The ALJ found that Complainant had established that protected activity was a contributing factor to the termination, and that Respondent's articulated legitimate non-discriminatory rationales were not credible when assessed under the clear and convincing evidence standard. First, although Complainant used foul language, the punishment was disparate, the record being replete with evidence that such language was common in the workplace, and that worse abuses by others had not been disciplined. Second, although Respondent alleged intimidation of a supervisor as a ground for the termination, the ALJ found that the incidents were not objectively intimidating, and discounted the supervisor's subjective assertions of intimidation based on his finding that the supervisor was a marginally credible witness. The ALJ also observed that intimidation was not documented as a basis for the discipline at the time. Third, although Respondent alleged insubordination as a rationale, the ALJ found that the brief 3 to 5 minutes during which Complainant resisted leaving the break room for an "investigation" was more indicative of disagreement over the conditions of the investigation or confusion over its purpose than a refusal to participate; that there was no evidence that Complainant explicitly refused a direct order; and that Respondent did not follow its own guidelines on responding to insubordination.

CONTRIBUTING FACTOR

CONTRIBUTING FACTOR; ONCE COMPLAINANT ESTABLISHES THAT PROTECTED ACTIVITY WAS A CONTRIBUTING FACTOR IN ADVERSE ACTION, RESPONDENT'S BURDEN IS TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD HAVE TAKEN THE ADVERSE ACTION IN THE ABSENCE OF THE PROTECTED ACTIVITY

In Patino v. Birken Manufacturing Co., ARB No. 06-125, 2005-AIR-23 (ARB July 7, 2008), once the Complainant established by a preponderance of the evidence that his protected activities were a contributing factor in his firing, the ALJ imposed the wrong analysis when she stated that the Respondent could rebut by producing evidence of a legitimate, non-discriminatory reason for the firing. Rather, the Respondent's burden was to prove by clear and convincing evidence that it would have fired the Complainant in the absence of his protected activity. The ARB remanded for the ALJ to apply the correct legal standard.

CONTRIBUTING CAUSE; DELAY IN PAYMENT OF WORKERS’ COMPENSATION BENEFITS NOT SHOWN TO BE ATTRIBUTABLE TO AN INTENT TO RETALIATE

In Hafer v. United Airlines, Inc., ARB No. 06-017, ALJ No. 2005-AIR-8 (ARB Jan. 31, 2008), the ARB found that the Complainant failed to meet his burden of proving that his protected activity was a contributing factor in a delay in the payment of certain workers’ compensation payments. The ARB found that substantial evidence supported the ALJ’s findings that the delay was not attributable to any intentional efforts by employees of the Respondent (the payments were the responsibility of an independent, third party workers’ compensation administrator), that deliberately delaying such payments would have been an illogical way to retaliate because it only would result in increasing the Respondent’s liability to the Complainant, and that the delay was likely due to inadvertence and clerical errors.

CONTRIBUTING CAUSE; INFERENCE BASED ON TEMPORAL PROXIMITY IS NOT NECESSARILY DISPOSITIVE

In Barker v. Ameristar Airways, Inc., ARB No. 05-058, ALJ No. 2004-AIR-12 (ARB Dec. 31, 2007), the ARB found that the only evidence that connected the Complainant's protected activity and his discharge under a reduction-in-force was temporal proximity, and agreed with the ALJ's ultimate conclusion that the temporal proximity alone was insufficient to establish that the Complainant's protected activity was a contributing cause to the Respondent's decision to discharge him. The ARB wrote:

Temporal proximity between protected activity and adverse personnel action "normally" will satisfy the burden of making a prima facie showing of knowledge and causation. 29 C.F.R. § 1979.104(b)(2). While a temporal connection between protected activity and an adverse action may support an inference of retaliation, the inference is not necessarily dispositive. Robinson v. Northwest Airlines, Inc., ARB No. 04-041, ALJ No. 2003-AIR-022, slip op. at 9 (ARB Nov. 30, 2005). For example, if an employer has established one or more legitimate reasons for the adverse action, the temporal inference alone may be insufficient to meet the employee's burden of proof to demonstrate that his protected activity was a contributing factor in the adverse action. Barber v. Planet Airways, Inc., ARB No. 04-056, ALJ No. 2002-AIR-019, slip op. at 6-7 (ARB Apr. 28, 2006).

CONTRIBUTING FACTOR; TEMPORAL PROXIMITY AND INTERVENING EVENTS

In Barber v. Planet Airways, Inc., ARB No. 04-056, ALJ No. 2002-AIR-19 (ARB Apr. 28, 2006), PDF the ALJ properly found that the Complainant had not carried his burden of proving by a preponderance of the evidence that his protected activity was a contributing factor in the Respondent's decision to fire him. Although there was temporal proximity between the protected activity and the adverse action, substantial evidence supported the ALJ's finding of no nexus: (1) the evidence showed that the Respondent had been making preparations to fire the Complainant for months; (2) there was credible testimony by the Respondent's HR manager that he received numerous complaints about the Complainant's sexual harassment, poor management and retaliation against employees; (3) the Complainant had been behind the firing of two captains who had voiced safety complaints to the FAA, and the Respondent had settled, over the Complainant's objection, whistleblower cases filed by those captains because it did not have a defense; (4) the Complainant maintained an "inappropriate" and "unusual" relationship with a FAA inspector, which the ALJ correctly found played a role in the firing -- but not based on safety concerns reported to the FAA. The Board wrote:

[W]hile a temporal connection between protected activity and an adverse action may support an inference of retaliation, Robinson v. Northwest Airlines, Inc., ARB No. 04-041, ALJ No. 03-AIR-22, slip op. at 9 (ARB Nov. 30, 2005), the inference is not necessarily dispositive. For example, inferring a causal relationship between the protected activity and the adverse action is not logical when the two are separated by an intervening event that independently could have caused the adverse action. Tracanna v. Arctic Slope Inspection Serv., ARB No. 98-168, ALJ No. 97-WPC-1, slip op. at 8 (ARB July 31, 2001). Also, where an employer has established one or more legitimate reasons for the adverse action, the temporal inference alone may be insufficient to meet the employee's burden of proof to demonstrate that his protected activity was a contributing factor in the adverse action.

In the instant case, there had been intervening events. Moreover, the Complainant gave testimony that tacitly agreed with many of the non-discriminatory reasons given by the Respondent for the discharge.

CAUSATION; TEMPORAL PROXIMITY MAY BE SUFFICIENT TO ESTABLISH CONTRIBUTING FACTOR ELEMENT

In Vieques Air Link, Inc. v. USDOL, No. 05-01278 (1st Cir. Feb. 2, 2006) (per curiam) (available at 2006 WL 247886) (case below ARB No. 04-021, ALJ No. 2003-AIR-10), the First Circuit held that the ALJ permissibly treated the temporal proximity between the Complainant's reports and his suspensions by the Respondent as sufficient to show the requisite causal relationship to establish that his protected activity was a contributing factor in the adverse employment action he suffered.

CAUSATION; CONTRIBUTING FACTOR; LETTER TO FAA REPORTING SAFETY CONCERN; FAILURE TO SHOW THAT IT WAS THE SUBSTANCE OF THE LETTER RATHER THE MANNER OF DISTRIBUTION OF THE LETTER THAT LED TO THE ADVERSE ACTION

In Robinson v. Northwest Airlines, Inc., ARB No. 04-041, ALJ No. 2003-AIR-22 (ARB Nov. 30, 2005), the Complainant, a pilot, had written a letter to the FAA complaining that that the Respondent had failed to remove the checked luggage of two passengers who had been detained for currency violations. Later, the Complainant copied five pilots and Osama bin Laden "in absentia" with a "continuation" of the letter. Because of this, and other prior and subsequent events, the Complainant was taken out of service and placed on paid status pending the results of a psychological evaluation. Eventually the Complainant was placed on long term sick leave. The ARB affirmed the ALJ's finding that the Complainant had failed to establish by a preponderance of the evidence that the protected activity of communicating the baggage removal violation to the FAA letter was a contributing factor in the Respondent's adverse actions. The ARB found that substantial evidence supported the ALJ's finding that it was the addendum purporting to copy bin Laden rather than the safety complaint that concerned Respondent's managers. The ARB agreed with the ALJ's finding that, although the Complainant had shown no performance problems, it was his pattern of conduct over time that caused the Respondent to be concerned about his potential conduct in the cockpit once under stress and to refer him for the psychological evaluation.

CONTRIBUTING FACTOR; UNPROTECTED HOTLINE COMPLAINT SHOWN TO BE SOLE MOTIVE FOR SELECTION OF COMPLAINANT FOR LAYOFF

In Walker v. American Airlines, 2003-AIR-17 (ALJ Nov. 16, 2004), the ALJ found that the Complainant was not engaged in protected activity when he made a call to the company hotline that was not made in good faith or with a reasonable basis. Following investigation, the Complainant was given a "career decision day" for making an admittedly false hotline complaint. Although the Complainant engaged in other protected activity, the preponderance of the evidence demonstrated that the Complainant was selected for layoff entirely on the basis of there being a "career decision day" discipline in his record. The ALJ also found that there was clear and convincing evidence that the Respondent would have made this decision even if the Complainant had not engaged in protected activities: the company was making layoffs in the immediate wake of September 11, and the Complainant was the only supervisory employee with a record of recent discipline in his file.

CONTRIBUTING FACTOR; CIRCUMSTANTIAL EVIDENCE STANDING ALONE MAY NOT BE SUFFICIENT PROOF TO INVOKE RESPONDENT'S CLEARN AND CONVINCING BURDEN OF PROOF WHERE IT ARTICULATES A LEGITIMATE NON-DISCRIMATORY REASON AND THE COMPLAINANT DOES NOT SHOW THAT REASON TO BE PRETEXTUAL

Under the whistleblower provision of AIR21, the complainant must prove by a preponderance of the evidence, that protected activity was a contributing factor that motivated the respondent to take adverse action against him. In Peck v. Safe Air International, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3 (ARB Jan. 30, 2004), the ARB indicated that even though temporal proximity between the protected activity and the adverse employment action circumstantially creates an inference of a violation of the Act, such may not be sufficient to prove the case. The ARB indicated that if the Respondent establishes that the adverse action was taken for legitimate, nondiscriminatory reasons alone, and the Complainant does not establish that such reasons were pretextual, the Complainant may be found to have failed to show that his protected activity was a contributing factor in the adverse employment decision. If so, it is unnecessary to proceed to the next stage of proof (whether the Respondent demonstrated by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity). In other words: " It is not necessary for the Respondent to produce clear and convincing evidence of a legitimate non-discriminatory reason to rebut the Complainant's prima facie case. .... That heightened burden of proof does not come into play until the Complainant has demonstrated that protected activity was a contributing factor in the termination, see 49 U.S.C.A. § 42121(b)(2)(B)(iii)-(iv) . . . ."

EMPLOYER'S KNOWLEDGE OF PROTECTED ACTIVITY

COMMUNICATION REQUIREMENT; THEORY THAT COERCION MAY EXCUSE FAILURE TO COMMUNICATE PROTECTED ACTIVITY

In Rougas v. Southeast Airlines, Inc., ARB No. 04-139, ALJ No. 2004-AIR-3 (ARB July 31, 2006), PDF | HTM the Complainant appeared to argue on appeal to the ARB that he should be excused from the requirement that the protected activity (in this case, refusal to fly based on illness) be communicated to the Respondent because he was coerced to fly by a threat (which had been immediately retracted) by the Respondent's operations director that the Complainant would be fired if he did not fly. The ARB observed that all the facts had not yet been determined, and that the Complainant had not cited any case law on point as to whether coercion could excuse the failure to comply with the communication requirement. Because it was remanding the case, the ARB did not decide the issue of whether the excuse theory could succeed.

KNOWLEDGE OF PROTECTED ACTIVITY; COINCIDENCES AND INFERENCES ALONE DO NOT CARRY COMPLAINANT'S BURDEN OF PROOF

In Peck v. Safe Air International, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3 (ARB Jan. 30, 2004), the ARB stated that an element of an AIR21 whistleblower case is that the employer knew about the protected activity. The Board wrote:

Knowledge of protected activity on the part of the person making the adverse employment decision is an essential element of a discrimination complaint. Bartlik v. TVA, 88-ERA-15, slip op. at 4 n.1 (Sec'y Apr. 7, 1993), aff'd, 73 F.3d 100 (6th Cir. 1996) (ERA employee protection provision). This element derives from the language of the statutory prohibitions, in this case that no air carrier, contractor, or subcontractor may discriminate in employment "because" the employee has engaged in protected activity. 49 U.S.C.A. § 42121 (a). Section 519 provides expressly that the element of employer knowledge applies even to circumstances in which an employee "is about to" provide, or cause to be provided, information about air carrier safety or "is about to" file, or cause to be filed, such proceedings. 49 U.S.C.A. § 42121(a)(1) and (2); H.R. Conf. Rep. No. 106-513, at 216-217 (2000), reprinted in 2000 U.S.C.C.A.N. 80, 153-154 (prohibition against taking adverse action against an employee who provided or is about to provide (with any knowledge of the employer) any safety information).

The ARB noted that the ALJ had found that, although circumstantial evidence pointed toward a case of unlawful discrimination under AIR21, contravening evidence undermined the circumstantial evidence case. The ARB found that substantial evidence supported the ALJ's conclusion that the managers who terminated the Complainant's services did not know about his protected activity. Thus, where the Complainant's proof consisted merely of coincidental timing and inferences, but there was uncontroverted testimony of the lack of employer knowledge, the Complainant failed to meet his burden of establishing by a preponderance of the evidence that the relevant decision makers knew about his FAA complaint.

PRETEXT

PRETEXT/CONTRIBUTING CAUSE NOT ESTABLISHED MERELY BY TEMPORAL PROXIMITY OR SOME CIRCUMSTANTIAL EVIDENCE; RATHER COMPLAINANT’S BURDEN IS TO SHOW CONTRIBUTING CAUSE BY THE PREPONDERANCE OF THE EVIDENCE

In Sievers v. Alaska Airlines, Inc., ARB No. 05-109, ALJ No. 2004-AIR-28 (ARB Jan. 30, 2008), the ARB found that the record supported some, but not all, of the ALJ’s findings on circumstantial evidence which led the ALJ to find that the Respondent had used time card violations as a pretext to fire the Complainant, a maintenance supervisor, over protected activity, and that the protected activity contributed to the firing. The ARB agreed with the ALJ that the protected activity and the termination occurred closely in time; that the managers were upset when out-of-service delays occurred; that a manager had recommended that another employee who had also been discharged, but not the Complainant, be eligible for rehire; and that the Respondent did not investigate the allegations that the facility’s maintenance manager knew about and condoned timecard fraud. However, the ARB found that these findings did not constitute a preponderance of the evidence that the Complainant’s protected activity contributed to his firing. Rather, the ARB found that the weight of the evidence demonstrated that the Respondent terminated the Complainant because of timecard fraud. Specifically, the ARB found that the Respondent had a clear, legitimate reason to discipline the Complainant over the time card violations; that employees had been warned about such violations; that the investigation of time card violations and subsequent disciplinary action was not contrived; and that the record demonstrated that managers – though occasionally having passing impatience over delays -- had harbored no animus toward the Complainant when he insisted on safety.

PRETEXT; ONCE COMPLAINANT ESTABLISHES THAT PROTECTED ACTIVITY WAS A CONTRIBUTING FACTOR TO THE ADVERSE ACTION, THE RESPONDENT'S BURDEN IS TO ARTICULATE A LEGITIMATE NON-DISCRIMINATORY REASON; THE CLEAR AND CONVINCING EVIDENCE BURDEN ONLY ARISES IF THE COMPLAINANT ESTABLISHES DISCRIMINATION BY A PREPONDERANCE OF THE EVIDENCE

In Barker v. Ameristar Airways, Inc., ARB No. 05-058, ALJ No. 2004-AIR-12 (ARB Dec. 31, 2007), the ALJ made an analytical error regarding pretext under the whistleblower provision of AIR21 when she merged the Respondent's burden of producing a legitimate non-discriminatory reason for its adverse action with its later burden of proving by clear and convincing evidence that it would have taken the adverse action absent protected activity. Rather, once a complainant establishes that protected activity was a contributing factor to the adverse action, the respondent's burden is to articulate a legitimate non-discriminatory reason. The burden then shifts back to the complainant to establish that the articulated reason was pretext. The Respondent's clear and convincing evidence burden to show that it would have taken the same adverse action even in the absence of the complainant's protected activity arises only once the complainant establishes discrimination by a preponderance of the evidence.

PRETEXT; EVEN IF THE ALJ REJECTS THE RESPONDENT'S PRIMARY REASON ARTICULATED FOR THE ADVERSE ACTION, THE ALJ IS NOT REQUIRED TO FIND THAT DISCRIMINATION WAS A CONTRIBUTING FACTOR IF THE TOTALITY OF THE EVIDENCE SHOWS THAT DISCRIMINATION DID NOT PLAY A PART

In Majali v. Airtran Airlines, ARB No. 04-163, ALJ No. 2003-AIR-45 (ARB Oct. 31, 2007), the ARB found that -- although the ALJ had rejected the Respondent's primary articulated reason for termination of the Complainant's employment, and had erroneously based her decision partly on a reason not articulated by the Respondent -- substantial evidence supported the ALJ's finding that the Complainant had failed to demonstrate that the Respondent's alternate reason for the adverse action – the Complainant's unreasonable demands in settlement negotiations and the consequent failed negotiations – was a pretext for discrimination. The ARB observed that although the ALJ, being aware that the Complainant had proven the Respondent's primary reason to be false, might have determined from that falsity that discrimination was at least a contributing factor in the termination, the ALJ was not required to do so. Rather, the ALJ could, based upon the totality of the evidence, find that discrimination did not play a part in the Respondent's termination decision. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146-47 (2000) (clarifying that a false explanation by the employer permits, but does not require, a finding that discrimination played a part in the decision); Wilson v. AM Gen. Corp., 167 F.3d 1114, 1120 (7th Cir. 1999) (noting that the falsity of one explanation may at times justify judgment for the plaintiff, even if the employer's other reasons are not proven false).

LEGITIMATE NON-DISCRIMINATORY MOTIVE; COMPLAINANT'S UNREASONABLE AND EXCESSIVE SETTLEMENT DEMANDS

In Majali v. Airtran Airlines, No. 07-15872 (11th Cir. Sept. 26, 2008) (unpublished) (case below ARB No. 04-163, ALJ No. 2003-AIR-45), the court found that substantial evidence supported the ALJ and ARB's determination that the Complainant was discharged because his demands in settlement negotiations while on leave were unreasonable and excessive and created an acrimonious relationship between the petitioner and the airline. The court noted that the making of settlement demands is not protected activity under the whistleblower provision of AIR21. Although the ARB disbelieved one of the airline's proffered legitimate reasons for its actions, the court stated that such did not require it to disbelieve another or to infer a retaliatory motive.

NONDISCRIMINATORY REASONS FOR ADVERSE ACTION NOT ARTICULATED BY DEFENDANT, BUT CONCLUSIVELY REVEALED BY THE RECORD; ARB SUGGESTS THAT CASELAW INDICATING THAT TRIAL COURT MAY NOT BASE A DECISION ON A REASON NOT ARTICULATED BY THE DEFENDANT MAY NEED TO BE RECONCILED WITH LANGUAGE FROM THE SUPREME COURT'S DECISION IN REEVES

In Majali v. Airtran Airlines, ARB No. 04-163, ALJ No. 2003-AIR-45 (ARB Oct. 31, 2007), the ARB found that there was no evidence to support the ALJ's finding that the Respondent had articulated that it terminated the Complainant's employment based in part on his ten-month absence from work. In a footnote, the ARB reviewed caselaw to the effect that a trial judge cannot find the existence of a non-discriminatory reason that was not articulated by the defendant. Because it affirmed the ALJ's dismissal of the complaint on other grounds, the ARB did not determine the interaction between these decisions and the Supreme Court's statement in Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 147 (2000), that "there will be instances where, although the plaintiff . . . set forth sufficient evidence to reject the defendant's explanation, . . . the record conclusively revealed some other, nondiscriminatory reason for the employer's decision." Reeves, 530 U.S. at 148.

PRETEXT; SHIFTING EXPLANATIONS CAN THEMSELVES BE EVIDENCE OF PRETEXT

The fact that an employer offers shifting explanations for its challenged personnel action can itself serve to demonstrate pretext. Vieques Air Link, Inc. v. USDOL, No. 05-01278 (1st Cir. Feb. 2, 2006) (per curiam) (available at 2006 WL 247886) (case below ARB No. 04-021, ALJ No. 2003-AIR-10) (the employer had not offered lack of seniority as the reason for a disadvantageous transfer until the time the hearing).

CLEAR AND CONVINCING EVIDENCE STANDARD

CLEAR AND CONVINCING EVIDENCE; DENIAL OF PROMOTION; EVIDENCE THAT COMPLAINANT DID NOT POSSESS IMPORTANT INTERNATIONAL EXPERIENCE, HAD SCORED POORLY, AND HAD NOT INTERVIEWED WELL

In Hoffman v. NetJets Aviation, Inc., ARB No. 06-141, ALJ No. 2005-AIR-26 (ARB July 22, 2008), the ARB affirmed the ALJ's finding that the Respondent had established by clear and convincing evidence that it would have denied the Complainant a promotion even in the absence of protected activity. First, the Complainant did not have international experience being sought by the Employer, and possessed by most of the persons who were awarded the position. The Complainant alleged that the experience criterion was made up, but the Respondent countered with testimony noting the need for international experience prior to the bid. Second, the Complainant ranked 27th out of 30 applicants, and more than 13 applicants scored higher than Complainant. The ARB found that substantial evidence supported the ALJ's view that the point system was not pretext. Third, testimony indicated that several interviewers found that the Complainant had not interviewed well for the position.

CLEAR AND CONVINCING EVIDENCE; RATHER THAN DOING HIS JOB AND ASSISTING IN VERIFYING A SAFETY ISSUE AND RECOMMENDING SOLUTIONS, THE COMPLAINANT INSISTED THAT THE MANAGEMENT FIRST CORRECT THE PROBLEM BEFORE HE PROCEEDED WITH HIS VALIDATION AND VERIFICATION DUTIES

In Yadav v. L3 Communications Corp., 2006-AIR-16 (ALJ Apr. 30, 2008), the Complainant was an Engineering Manager for Validation and Verification for an avionics company. He had been hired in relation to a flight display software project. During his tenure the Complainant was responsible for the verification stage of the engineering Life Cycle. He became concerned about the Respondent's overuse of reverse engineering during the validation stage to establish a code for design requirements. Although acceptable on a limited basis, overuse of reverse engineering had the potential for misleading the FAA and potential customers about the engineering of the software. After he was terminated from employment, the Complainant filed an AIR21 whistleblower complaint. The ALJ, following a thorough review of the record, found that the Complainant established by a preponderance of the evidence that his objections to the Software Development Plan (SDP) to a company Vice-President was a contributing factor in his discharge. The ALJ found that the Complainant's concerns had been the catalyst for an Ethics Investigation on the SDP, and that the manner in which the investigation had been initiated – with the company president listing herself as the originator of the ethics complaint – indicated that the independence of the investigation was jeopardized (the investigation found sufficient safeguards to produce a safe software product), and affected the president's determination to continue consideration of the Complainant's termination.

Because the Complainant had carried his burden under AIR21, the ALJ then turned to question of whether the Respondent established by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of any protected activity. The ALJ found that it did. The ALJ found that the Complainant had given the Respondent's vice-president an ultimatum: do what the Complainant recommended (which would have essentially destroyed the software project), or he would no longer perform his validation and verification function on the project, or he would resign, or the Respondent could remove him from his job and/or terminate him. Although there had been temporal proximity between the protected activity and the adverse action, the ALJ found that it did not defeat the Respondent's clear and convincing evidence that the Complainant not only threatened to stop working, but in fact did stop performing his validation and verification duties; that he had not produced information requested by the Director of Engineering; and that he had not talked to managers as directed by the vice-president nor produced information necessary to support his non-support of the SDP process. The ALJ found that the Complainant used a very large part of the time he should have been working on validation and verification duties to create a 48 page PowerPoint presentation, the goal of which was to present a plan for the total reorganization of the facility doing the SDP, and to illustrate that the Respondent's facility was operating illegally. The ALJ indicated that the Complainant was fired because, rather than doing his job and providing management with an analysis of specific corrections or improvements required for the SDP Life Cycle phases, or planning or pointing out validation and verification requirements that could be initiated or adopted to correct safety issues, the Complainant persistently expressed the conviction that he could not perform his job unless management first addressed his perceived safety concerns, which he refused to verify other than by invoking philosophical engineering principles.

CLEAR AND CONVINCING BURDEN OF PROOF; NO NEED TO CONSIDER IF THE COMPLAINANT FAILED TO MEET THE CONTRIBUTING CAUSE BURDEN

In an AIR21 case, where the complainant does not prove that the respondent took adverse action in part because of the complainant’s protected activity, it is not necessary to proceed to an analysis of whether the respondent could demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel actions in the absence of any protected behavior. Hafer v. United Airlines, Inc., ARB No. 06-017, ALJ No. 2005-AIR-8 (ARB Jan. 31, 2008).

CLEAR AND CONVINCING EVIDENCE; IN FACE OF POST-SEPTEMBER 11 LAYOFFS, COMPLAINANT WAS THE ONLY EMPLOYEE AT HIS LEVEL TO HAVE RECENT DISCIPLINE IN HIS FILE

See the case of Walker v. American Airlines, 2003-AIR-17 (ALJ Nov. 16, 2004), in the "Contributing Cause" section supra.

CLEAR AND CONVINCING EVIDENCE THAT RESPONDENT WOULD HAVE TAKEN SAME ADVERSE EMPLOYMENT ACTION IN ABSENCE OF PROTECTED ACTIVITY; EVIDENCE THAT DELAY PERFORMANCE DETERIORATION WAS LINKED TO JOB ACTION TO SUPPORT CONTRACT NEGOTIATION

In Davis v. United Airlines, Inc., 2001-AIR-5 (ALJ July 25, 2002), although the ALJ found that the Complainant engaged in protected activity when he reported safety concerns directly to the flight crew after the maintenance supervisor had dismissed the concerns, the ALJ nevertheless found that Respondent had established by clear and convincing evidence that it would have taken the same adverse employment actions against the Complainant even in the absence of those incidents where Respondent's stated reason for the action was Complainant's unsatisfactorily explained deterioration in delay performance following expiration of the union contact. In the 13 days following the expiration of the contract, Complainant had more delays attributed to him than in the entire first 6 months of the year. Respondent believed this to be an illegal job action, and terminated Complainant solely for this reason. The ALJ expressly found that Respondent had not taken into consideration whether the maintenance writeups made by Complainant were safety-related, but in a footnote observed that termination for consistently failing to dispatch in time might be a violation of the Act if the delays were associated with reports of safety concerns. The ALJ, in his conclusion, emphasized that he was not determining whether Complainant was engaged in an illegal job action -- rather, all that was relevant was Respondent's motivation, and it was established that Respondent fired Complainant because it believed he was engaged in an illegal job action.

PROTECTED ACTIVITY

PROTECTED ACTIVITY; COMPLAINANT'S LACK OF REASONABLE BELIEF IN VERACITY OF ALLEGATION

CONTRIBUTING CAUSE; EVIDENCE THAT SOLE MOTIVATING FACTOR WAS FALSE ALLEGATION MADE BY COMPLAINANT

In Walker v. USDOL, No. 07-72072 (9th Cir. Dec. 4, 2008) (unpublished) (case below ARB No. 05-028, ALJ No. 2003-AIR-17), the Ninth Circuit found that the ARB did not err in affirming the ALJ's finding that the Complainant had not engaged in protected activity when he called the company employee hotline to make an allegation against three supervisors where the allegation was false and the Complainant did not have a reasonable belief in its veracity. While the Complainant may have engaged in other protected activity, the ARB did not err in concluding that substantial evidence supported the ALJ's finding that the falsehood solely motivated the termination.

PROTECTED ACTIVITY; MUST RELATE TO A REGULATION OR ORDER, MUST BE SPECIFIC, AND MUST BE REASONABLY BELIEVED BY THE COMPLAINANT

To constitute protected activity under AIR21, a complainant's complaints must relate to a regulation or order, must be specific, and must be reasonably believed by the complainant. In Simpson v. United Parcel Service, ARB No. 06-065, ALJ No. 2005-AIR-31 (ARB Mar. 14, 2008), one of the Respondent's aircraft was taken out of service to correct a problem with the cabin pressurization system. After the Complainant and a co-worker reported that the system had been fixed, and signed the logbook to confirm the correction, the Complainant was found still working in the cockpit. She explained that there had been too many deferrals with that aircraft, and that something was "illegal." According to an acting supervisor, when pressed to explain, the Complainant did not point to anything in particular but just stated that something didn't feel right. The ARB held that this was not protected activity because the Complainant (1) was never able to indicate to any supervisor a concern related to a violation of any safety regulation or order other than the pressurization system problem which had already been corrected, (2) failed to communicate any specific safety defect that her employer could take corrective action on, and (3) did not demonstrate a reasonable belief that a violation of an air safety regulation or order existed given that she had signed off on the logbook.

PROTECTED ACTIVITY; MERELY PERFORMING SAFETY-RELATED DUTIES, STANDING ALONE, DOES NOT CONSTITUTE PROTECTED ACTIVITY

A maintenance supervisor’s carrying out of his required, safety-related duties -- supervising the maintenance of the Respondent’s aircraft and reporting, repairing, or deferring the repair of any documented defects -- is not, standing alone, protected activity under AIR21. Rather, to be protected, the employee must provide information to the employer or to the federal government that relates FAA orders, regulations or standards, or other provision of law related to air carrier safety. While laudable, competently and aggressively carrying out duties to ensure safety does not, standing alone, constitute protected activity. Thus, in Sievers v. Alaska Airlines, Inc., ARB No. 05-109, ALJ No. 2004-AIR-28 (ARB Jan. 30, 2008), the ARB found that the Complainant did not engage in protected activity regarding incidents in which information was not provided to the employer or to a Federal entity, but that he did engage in protected activity when he refused to override a maintenance crew’s decision to take a plane out of service because it would have been "wrong" (i.e., it would have violated the FAA rule at 14 C.F.R. § 135.443).

PROTECTED ACTIVITY; FILING OF DISCOVERY IN A PRIOR WHISTLEBLOWER PROCEEDING

In Powers v. Paper, Allied-Industrial Chemical & Energy Workers Int’l Union (PACE), ARB No. 04-111, ALJ No. 2004-AIR-19 (ARB Aug. 31, 2007), the ALJ erred in concluding that serving a discovery request could not constitute protected activity. The ARB held that “it is possible that serving a discovery request potentially could constitute protected activity if the request was part of a whistleblower complaint.” Slip op. at 10 (footnote omitted).

PROTECTED ACTIVITY; UNDER AIR21, THE PROVISION OF INFORMATION ABOUT SAFETY IS PROTECTED ONLY WHEN THE COMPLAINANT ACTUALLY BELIEVES IN THE EXISTENCE OF A VIOLATION

In Walker v. American Airlines, Inc., ARB No. 05-028, ALJ No. 2003-AIR-17 (ARB Mar. 30, 2007), the Complainant, a level 4 maintenance supervisor, made a call to the Respondent's hotline primarily complaining about a change in policy regarding how overtime work would be credited, but also including a statement charging that several higher level supervisors had been intimidating the Complainant into signing off on tasks that had not been completed or were not safe just so they could get the plane out. The Complainant later signed a statement retracting the charge that the supervisors had been intimidating him. Following a hearing, the ALJ found that the Complainant had not had a good faith and reasonable basis for making the allegation about supervisor pressure to sign off on items. The ALJ's finding was largely based on credibility determinations, which the Complainant challenged on appeal, but which the ARB found were supported by substantial evidence. The ARB also affirmed the ALJ's finding that the hotline call was not protected activity because it was not made in good faith. Assuming for purposes of argument that the hotline call implicated safety, the ARB held that the provision of information is protected activity only when the complainant actually believes in the existence of a violation.

PROTECTED ACTIVITY; COMPLAINANT'S REASONABLE BELIEF THAT FLYING WITH A FATIGUED CREW WOULD VIOLATE A FEDERAL AVIATION REGULATION

In Rooks v. Planet Airways, Inc., ARB No. 04-092, ALJ No. 2003-AIR-35 (ARB June 28, 2006), the ARB affirmed the ALJ's finding that the Complainant engaged in protected activity when he refused to complete a delayed flight because the flight crew was fatigued, and the Complainant believed that flying with a fatigued crew was a hazard covered by the federal aviation regulation ("FAR") at 14 C.F.R. § 121.553. The ARB noted that the Complainant did not have to prove that flying with fatigued crew members actually violated the FARs, as long as his belief that it did was reasonable.

PROTECTED ACTIVITY; GENUINE BELIEF IN VIOLATION OF FEDERAL AIR CARRIER SAFETY LAW; OBJECTIVE REASONABLENESS OF BELIEF; SPECIFICITY OF CONCERN

In Rougas v. Southeast Airlines, Inc., ARB No. 04-139, ALJ No. 2004-AIR-3 (ARB July 31, 2006), PDF | HTM the ARB remanded to the ALJ for further fact finding where the ALJ had overlooked several circumstances alleged by the Complainant in his post-hearing brief to constitute protected activity. The ARB instructed that the ALJ only needed to look at the activities that the Complainant raised in the post-hearing brief because arguments made for the first time on appeal are waived. The ARB also instructed the ALJ that the governing law for determining whether an activity is protected under AIR21 requires findings on whether:

the complainant genuinely believed that 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
the concern was objectively reasonable in the circumstances, and
the complainant expressed his concern "in a manner that was 'specific' with respect to the 'practice, condition, directive or event' giving rise to the concern."

Slip op. at 14.

PROTECTED ACTIVITY; PRETEXTUAL REASON AS EVIDENCE OF DISCRIMINATION

WHERE THE EVIDENCE ESTABLISHED THAT THE RESPONDENT'S STATED REASON FOR DISCHARGING THE COMPLAINANT – THAT IT DISCOVERED THAT THE COMPLAINANT'S WORK WAS MUCH WORSE THAT IT FIRST SUSPECTED WHEN IT SUSPENDED HIM – WAS PRETEXT, THE ARB FOUND SUCH PRETEXT WAS EVIDENCE OF DISCRIMINATION. LEBO V. PIEDMONT-HAWTHORNE, ARB NO. 04-020, ALJ NO. 2003-AIR-25 (ARB AUG. 30, 2005).

PROTECTED ACTIVITY; CARRYING OUT AGGRESSIVE AND COMPETENT INSPECTIONS REQUIRED OF A MAINTENANCE SUPERVISOR; SUCH ACTIVITIES DO NOT REQUIRE A FORMAL COMPLAINT TO THE FAA OR A COMPANY HOT-LINE TO BE PROTECTED

In Sievers v. Alaska Airlines Inc., 2004-AIR-28 (ALJ May 23, 2005), the ALJ found that the Complainant, an aviation line maintenance supervisor, engaged in protected activity when he carried out his required, safety-related duties competently and aggressively, even though some of the defects identified by the Complainant and his staff did not implicate serious safety concerns. Mackowiak v. Univ. Nuclear Sys. Inc., 735 F.2d 1159, 1163 (9th Cir. 1984); Kinser v. Mesaba Aviation, Inc., 2003-AIR-7 (ALJ Feb. 9, 2004), at 23; Szpyrka v. American Eagle Airlines, Inc., 2002-AIR-9 (ALJ July 8, 2002). The ALJ rejected the Respondent's argument that inspection duties were not protected activity because they did not involve a complaint to the FAA or the Respondent's safety "hot line." The ALJ wrote: "For a finding of protected activity, it is sufficient that Complainant carried out his required, safety-related duties: supervising the maintenance of Respondent's aircraft and reporting, repairing, or deferring the repair of any documented defects." Slip op. at 24. The ALJ observed that the Complainant's aggressive performance of his duties was not conducted out of malice, but in an atmosphere of concern over the appropriate balance between safety and economics given a tragic crash of one of the Respondent's flights in January of 2000. The crash was linked to a maintenance issue. Moreover, the Respondent had commissioned a report on its safety procedures in the wake of that crash; the report warned care must be take not to permit economic pressures on the aviation industry to allow a "culture creep" away from an emphasis on safety. These circumstances were well known to the Complainant and his staff.

PROTECTED ACTIVITY; REPORT OF BELIEF OF EXPOSURE TO PESTICIDE SPRAYING MANDATED BY FOREIGN GOVERNMENTS, BUT NOT SUBJECT OT ANY LAW OF THE U.S., IS NOT PROTECTED ACTIVITY WITHIN THE MEANING OF THE WHISTLEBLOWER PROVISION OF AIR21

In Mehan v. Delta Air Lines, ARB No. 03-070. ALJ No. 2003-AIR-4 (ARB Feb. 24, 2005), the ARB granted summary judgment in favor of the Respondent because the Complainant had failed to articulate a viable factual basis for her claim that she had engaged in protected activity. Specifically, the Board wrote: "Reporting to Delta her belief that she had been injured by pesticide spraying that was mandated by foreign governments, but that was not subject to any law of the United States, does not fall within the plain language of § 42121 – providing information or filing a proceeding relating to a violation of Federal air carrier safety laws."

PROTECTED ACTIVITY; COMPLAINTS ABOUT CALL SIGNS AND COMMERCIAL ACTIVITIES

In Barker v. Ameristar Airlines, Inc., 2004-AIR-12 (ALJ Oct. 7, 2004), the ALJ found that the Complainant's complaints about the Respondent's use of an affiliated company's call signs and its alleged commercial transactions outside the scope of its Part 125 certification were not protected activity because neither allegation related to air carrier safety.

PROTECTED ACTIVITY; PARTICIPATION IN INVESTIGATION OF ACTIVITY REASONABLY PERCEIVED TO BE IN VIOLATION OF FAA REGULATIONS

In Hendrix v. American Airlines, Inc., 2004-AIR-10, 2004-SOX-23 (ALJ Dec. 9, 2003), the ALJ found that the Complainant engaged in protected activity under the AIR21 when he participated in the investigation of an employee who was creating art objects out of company material where the Complainant had the reasonable belief that FAA regulations on the disposal of scrap aircraft parts were not being following. There was no dispute that the manager who initiated the investigation reported specific violations. Thus, even if the Complainant himself did not articulate specific violations, his conduct was protected activity because he was assisting that manager in the investigation, and the AIR21 protects employees who provide or "cause to be provided" information relating to the relevant violations.

PROTECTED ACTIVITY; HOTLINE COMPLAINT MADE WITHOUT A REASONABLE BASIS

In Walker v. American Airlines, 2003-AIR-17 (ALJ Nov. 16, 2004), the ALJ found that the Complainant was not engaged in protected activity when he made a call to the company hotline. The ALJ found that the evidence showed that although the Complainant might have had a good faith belief and reasonable basis for making a hotline complaint about understaffing and deadline pressures, the complaint he actually lodged -- alleging that managers were intimidating him into signing off on tasks that they knew had not been completed or were not safe just so they could get planes off the ground -- was not grounded in good faith or a reasonable belief. The ALJ recognized that the distinction may not seem great, but it was the difference between accusing managers of unknowingly causing safety problems by pushing too hard and intentionally disregarding known safety problems.

PROTECTED ACTIVITY; THREE ELEMENTS; REGISTERING OF COMPLAINT WITH LOCAL AUTHORITIES FOLLOWING CONSULTATION WITH FEDERAL AUTHORITY

In Svendsen v. Air Methods, Inc., ARB No. 03-074, 2002-AIR-16 (ARB Aug. 26, 2004), the ARB adopted the ALJ's finding that the Complainant was engaged in protected activity when he reported a dust cloud near the airport at which he was assigned for air ambulance flights. The dust cloud had been produced by a car race organized by a local Indian tribe, and the Complainant feared that it reduced visibility, especially for incoming flights. In the ALJ's decision, he found that "a protected activity under AIR 21 has three elements. First, the complaint must either: a) involve a purported violation of an FAA regulation, standard or order relating to air carrier safety, or any other provision of Federal law relating to air carrier safety; or, b) at least "touch on" air carrier safety. Second, the complainant's belief about the purported violation must be objectively reasonable. Third, the complaint must be made either to the complainant's employer or the Federal Government." Svendsen v. Air Methods, Inc., 2002-AIR-16 (ALJ Mar. 3, 2003), slip op. at 48. The ALJ found that the complaint touched on air carrier safety and represented an objectively reasonable flight safety hazard. Id. at 49. The ALJ noted that the Complainant registered his complaint with the local tribe police and government, which were neither the Federal government nor the Complainant's employer. The Complainant had done so, however, after first reporting the visibility issue to a Federal flight service station, which concluded that it did not have the ability to act on the complaint and directed the Complainant to local authorities.

PROTECTED ACTIVITY; ALLEGED ACT MUST IMPLICATE SAFETY DEFINITIVELY AND SPECIFICALLY

In Fader v. Transportation Security Administration, 2004-AIR-27 (ALJ June 17, 2004), the Complainant's AIR21 complaint stated only that he had reported violations of the Privacy Act, abuses of the junior workforce, nepotism and fraud. The ALJ, citing caselaw to the effect that protected activity under AIR21 must raise safety definitively and specifically, granted the Respondent's motion to dismiss for failure to state claim upon which relief can be granted.

PROTECTED ACTIVITY; PENDING FAA REGULATION

In Weil v. Planet Airways, Inc., 2003-AIR-18 (ALJ Mar. 16, 2004), the ALJ found that the Complainant engaged in protected activity when he forcefully advocated for implementation of the Advanced Passenger Information System (APIS) imposed after September 11 to obtain and monitor information about people entering the United States. The ALJ found that a protected activity under AIR21 has three components: "First, the report or action must involve a purported violation of a Federal law or FAA regulation, standard or order relating to air carrier safety and at least 'touch on' air carrier safety. Second, the complainant's belief about the purported violation must be objectively reasonable. Third, the complainant must communicate his safety concern to either his employer or the Federal Government (49 U.S.C. § 42121 (a) (1))."

At the time the Complainant engaged in his advocacy on APIS, the FAA had only announced the intention to implement such a system. The ALJ, however, found that an APIS rule was "imminent" and that given that whistleblower laws are to be given a broad interpretation, found that the Complainant met the first component of protected activity under AIR21. The ALJ found that the Complainant had a reasonable concern that the Respondent would not meet the APIS compliance deadline, and that he had clearly communicated that concern to Respondent's management. The Complainant, however, was ultimately found by the ALJ not to be entitled to relief under the AIR21 whistleblower provision because he was unable to prove that his protected activity contributed to his termination from employment.

PROTECTED ACTIVITY; MUST BE SPECIFIC IN RELATION TO GIVEN PRACTICE, CONDITION, DIRECTIVE OR EVENT; COMPLAINANT MUST REASONABLY BELIEVE IN EXISTENCE OF VIOLATION

In Peck v. Safe Air International, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3 (ARB Jan. 30, 2004), the ARB described protected activity under the whistleblower provision of AIR21 as follows:

Air carriers are prohibited under AIR21 section 519 from discharging or otherwise discriminating against any employee because the employee, inter alia, provided the employer or Federal Government with information "relating to any violation or alleged violation of any order, regulation, or standard of the [FAA] or any other provision of Federal law relating to air carrier safety . . . ." 49 U.S.C.A. § 42121(a). While they may be oral or in writing, protected complaints must be specific in relation to a given practice, condition, directive or event. A complainant reasonably must believe in the existence of a violation. Clean Harbors Envtl. Serv. v. Herman, 146 F.3d 12, 19-21 (1st Cir. 1998); Leach v. Basin 3Western, Inc., ALJ No. 02-STA-5, ARB No. 02-089, slip op. at 3 (ARB July 21, 2003).

PROTECTED ACTIVITY; PERFORMING DUTIES AS A QUALITY CONTROL INSPECTOR INHERENTLY INVOLVE PROTECTED ACTIVITY

In Kinser v. Mesaba Aviation, Inc., 2003-AIR-7 (ALJ Feb. 9, 2004), the Respondent maintained that the Complainant's reporting of damaged and missing bin latch shrouds did not constitute protected activity because such did not implicate safety. The ALJ agreed that the record tended to show that broken or missing shrouds did not implicate a serious safety concern, but nonetheless found the Complainant, as a quality control inspector, was engaged in protected activity when he reported the damaged or missing bin latch shrouds, citing Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984) and Richter v. Baldwin Associates, 1984-ERA-9 (Sec'y Mar. 12, 1986), and FAA regulations imposing a duty on inspectors to report such discrepancies.

PROTECTED ACTIVITY; WORK REFUSAL; REASONABLE BELIEF THAT WORK ASKED TO BE PERFORMED WOULD VIOLATE FAA REGULATIONS OR QUALITY CONTROL PROCEDURES

In Kinser v. Mesaba Aviation, Inc., 2003-AIR-7 (ALJ Feb. 9, 2004), the Complainant alleged that his refusals to sign off on several C-checks were protected activity. The ALJ observed that AIR21 does not specifically list a refusal as protected activity, whereas section 5851 of the ERA does. The ALJ found, however, that caselaw in existence prior to the amendment of the ERA to expressly include work refusals as protected activity nonetheless categorized refusals as such. Durham v. Georgia Power Co., 1986-ERA-9 (ALJ Oct. 24, 1986). Thus, the ALJ found that if the Complainant's "refusal was based on a reasonable belief that he was being asked to violate FAA regulations and quality control procedures by signing off on the C-check, his actions could represent instituting proceedings under AIR21." The ALJ, however, ultimately found that the Complainant did not have a reasonable belief that signing off on the checks would violate the law, and therefore there refusals were not protected activity.

PROTECTED ACTIVITY; FILING A WHISTLEBLOWER COMPLAINT

Filing a complaint or charge of employer retaliation because of safety and quality control activities is protected activity under 49 U.S.C. § 42121(a)(1)-(4) (2002). Kinser v. Mesaba Aviation, Inc., 2003-AIR-7 (ALJ Feb. 9, 2004).

PROTECTED ACTIVITY; OBJECTIVELY REASONABLE BELIEF OF VIOLATION OF FAA REGULATION OR OTHER AVIATION LAW

In Parshley v. America West Airlines, 2002-AIR-10 (ALJ Aug. 5, 2002), the ALJ reviewed the principles developed in environmental whistleblower cases, and found that a protected activity under AIR 21 similarly has two elements: (1) the complaint must involve a purported violation of an FAA regulation, standard or order relating to air carrier safety, or any other provision of Federal law relating to air carrier safety; (2) the complainant's belief about the purported violation must be objectively reasonable.

The ALJ noted that there is a caselaw mandate to broadly interpret the meaning of protected activity. The ALJ nonetheless concluded that Complainant's reporting to her supervisor that she had received a report that an individual had made improper computer entries indicating the completion of an inspection step for 800 incoming aircraft parts, without verifying completion of an inspection for documenting serviceability, was not protected activity. The ALJ found that this was not protected activity because Complainant had failed to identify any FAA regulation or aviation statute that requires such a computer inventory system. The ALJ was unwilling to drawn an inference that such a process was required for FAA mandated inspections and certifications. The ALJ, however, did find that Complainant engaged in protected activity when she reported to her supervisor that some aircraft parts in the warehouse did not have an FAA- required serviceable tag, based on credible testimony that such tags were required by the FAA.

PROTECTED ACTIVITY; MAINTAINING AIRCRAFT MAINTENANCE LOGS

In Szpyrka v. American Eagle Airlines, Inc., 2002-AIR-9 (ALJ July 8, 2002), Complainant alleged that Respondent reprimanded and suspended him in retaliation for recording safety-related mechanical deficiencies in aircraft maintenance logs causing the removal of aircraft from passenger transport service and necessitating costly repairs. Respondent alleged that Complainant was disciplined for purposely waiting to make those records in locations where Respondent would have to pay a contractor rather than Respondent's own mechanics to make any needed repairs, at a greater cost to Respondent, for the purpose of voicing his dislike of the company.

Respondent filed a motion for summary decision based, inter alia, on the argument that mere entry of observations in aircraft maintenance logs does not, in and of itself, constitute either violations of federal regulations or a "proceeding" within the meaning of AIR21. The ALJ declined to grant summary decision on this basis, finding:

To be sure, it is not the existence of the pre-flight discrepancy which constitutes a violation, and a crew member's notation in a maintenance log is not a proceedings. Yet, an attempt to retaliate for, interfere with, or improperly influence the performance of a duty required by the FAR may trigger the protections of AIR 21. Consequently, if an airline seeks retribution against an aircrew member for performing required safety-related missions or if it engages in harassment, intimidation, or coercion in an attempt to interfere with an aircrew member's duty in the future, honestly and objectively, to carry out pre-flight inspection and reporting obligations, the airline's action may implicate the broad, remedial protections afforded by AIR 21. Since the circumstances which may constitute such interference are fact-specific, summary decision would be inappropriate.

PROTECTED ACTIVITY; MAINTAINING AIRCRAFT MAINTENANCE LOGS; OBJECTIVELY REASONABLE PERCEPTION STANDARD

In Davis v. United Airlines, Inc., 2001-AIR-5 (ALJ July 25, 2002), the ALJ applied ERA whistleblower caselaw to find that a report of any objectively reasonable perceived violation of federal laws or standards relating to air carrier safety is protected activity, even if the allegation is not ultimately substantiated.

PROTECTED ACTIVITY; COMPLAINANT'S MOTIVE MAY INFLUENCE WHETHER CONDUCT WAS PROTECTED

Complainant filed a motion for summary decision, arguing that, even if he acted maliciously, AIR21 protects behavior (the pre-flight inspection) that was a contributing factor in the unfavorable personnel action. The ALJ declined to grant summary decision, finding that although AIR21 might impose a lightened burden in establishing a prima facie case, the caselaw suggests that the circumstances of the case necessitate a fact-dependent inquiry focusing on the true impulses motivating the employee's actions, citing Zurenda v. J&K Plumbing & Heating Co. Inc., 1997-STA-16 (ARB June 12, 1998).

PROTECTED ACTIVITY; COMPLAINTS MADE TO EMPLOYEES WITHOUT CONTROL OVER COMPLAINANT'S EMPLOYMENT; COMPLAINTS TAKEN TO THE PILOT DESPITE MAINTENANCE SUPERVISOR'S CONCLUSION THAT THE AIRCRAFT WAS FLIGHT WORTHY

In Davis v. United Airlines, Inc., 2001-AIR-5 (ALJ July 25, 2002), the ALJ rejected Respondent's contention that complaints which touch on aircraft safety made internally to those without control over the complainant's employment are not protected activities. The ALJ held that the established law is that even complaints to co-workers as well as "informal" complaints to supervisors can be protected activities and that the form of the "complaint" is not critical. The ALJ held that at the point where on-duty maintenance supervisors and the pilots were informed by Complainant of potential safety defects, the reports became protected activity -- the ALJ finding that both the supervisors and pilots were in a position to act on safety related complaints.

The ALJ also held that "[e]ven though United might believe supervisors may be better at balancing the potential for delay versus a repair requirement, the broad purpose of the Act would best be served by protecting mechanics, particularly those with A&P licenses, who have such differences of opinion with supervisors regarding a safety issue and who take the matter to the flight crew." (footnote omitted).

EMPLOYER/EMPLOYEE/OTHERS

COVERAGE; HELICOPTER REPAIR; COMPLAINANT'S BURDEN TO PROVE COVERAGE BY PREPONDERANCE OF THE EVIDENCE

In LeRoy v. Keystone Helicopter, Inc., ARB No. 07-056, ALJ Nos. 2006-AIR-3 and 24 (ARB Mar. 31, 2009), following two hearings on the Complainant's AIR21 whistleblower complaint the Respondent raised the issue of coverage in a post-hearing brief. The Complainant responded with the argument that the Respondent had waived the issue of coverage, pursuant to the Supreme Court's ruling in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), because the Respondent had not raised the coverage issue at the first hearing. In Arbaugh the Court had ruled that when an employer seeks to defend against a Title VII claim on the basis that it is not covered because it does not employ 15 or more persons, it must do so by pleading or filing a motion to dismiss under FRCP 12(b)(6), failure to state a claim – not by pleading or moving to dismiss under FRCP 12(b)(1), lack of subject matter jurisdiction. A 12(b)(6) motion must be filed no later than the conclusion of the trial on the merits.

The ARB rejected the waiver argument because the Respondent had not filed a motion to dismiss, but merely argued in a post-hearing brief that the Complainant had not adduced sufficient evidence that the Respondent was an AIR 21 covered employer. The ARB declined to construe "Arbaugh, as applied to AIR 21, to mean that an employer waives the right to argue to the ALJ after an evidentiary hearing that the complainant did not sufficiently prove an essential element of his claim...."

Nothing in the record showed that the Respondent engaged in the air transportation of passengers for compensation or contracts with air carriers to do so. The ARB stated that while helicopter repair is undoubtedly a safety sensitive function, the record contained no evidence that the Respondent's repair contracts on which the Complainant worked were made with air carriers.

DISMISSAL FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED; FAILURE TO PLEAD ADEQUATE FACTS SHOWING EMPLOYER-EMPLOYEE RELATIONSHIP OR THAT THE AIRLINE TOOK, OR CAUSED TO BE TAKEN, ADVERSE ACTION

In Fullington v. AVSEC Services, LLC, ARB No. 04-019, ALJ No. 2003-AIR-30 (ARB Oct. 26, 2005), the ARB observed that since 29 C.F.R. Parts 18 and 24 do not contain a rule governing motions to dismiss for failure to state a claim upon which relief can be granted, it is appropriate to apply FRCP 12(b)(6). In the instant case, the ARB affirmed the dismissal of the complaint for failure to state of claim upon which relief could be granted against the Respondent airline where the Complainant, a supervisor for a company that had a cleaning services contract with the airline, failed to allege facts sufficient, if proved, to establish that the airline was her employer within the meaning of AIR21 and that it took or caused the cleaning services contractor to take adverse action against her.

The Board held that to state a cause of action under AIR21 "there must be an employer-employee relationship between an air carrier, contractor or subcontractor employer who violates the Act and the employee it subjects to discharge or discrimination, but that the violator need not be the employee's immediate employer under the common law. * * * The crucial factor in finding an employer-employee relationship is whether the respondent acted in the capacity of an employer, that is, exercised control over, or interfered with, the terms, conditions, or privileges of the complainant's employment. . . . Such control, which includes the ability to hire, transfer, promote, reprimand, or discharge the complainant, or to influence another employer to take such actions against a complainant, is essential for a whistleblower respondent to be considered an employer under the whistleblower statutes. ... If a complainant is unable to establish the requisite control and thus an employer-employee relationship, the entire claim must fail." USDOL/OALJ Reporter at 6-7 (citations omitted). In the instant case, the Complainant alleged facts showing that the Respondent airline controlled the quality of a contract employee's work performance, but did not claim that the airline had the ability to hire or fire her, or take any unfavorable personnel actions against her.

The ARB also ruled that to the extent that the ALJ and the ARB reviewed more than just the allegations of the complaint, the airline's motion to dismiss would be handled as a motion for summary decision under 29 C.F.R. §§ 18.40, 18.41. The Complainant's mere conclusory allegation in her filings with the ALJ and the ARB that the airline had control over her work and had illegally terminated her were not sufficient under the summary decision standard to overcome the airline's denials that it played any part in the termination of the Complainant's employment. The ARB noted that the Complainant had opportunities to present facts demonstrating that the airline actually played a role in the adverse action taken by the cleaning service contractor, but failed to do so.

COVERED EMPLOYER; AIR OPERATOR THAT CARRIES AN EXTERNAL LOAD IS NOT AN AIR CARRIER COVERED BY AIR21

In Marsh v. Erickson Air-Crane, Inc., 2004-AIR-33 (ALJ May 13, 2005), the Respondent owned helicopters that performed specialized operations such as fire-fighting, logging, construction and hydroseeding, rather than transportation activities. The Respondent held a Part 133 certification, rather than an operating certification under 14 C.F.R. Part 119, making it an air operator rather than an air carrier under FAA regulations. The Complainant argued that because the helicopters have a belly tank, they carry cargo and therefore are air carriers under AIR21. The ALJ, however, was not convinced by the belly tank argument, finding that the Respondent was an air operator that carries only external loads and not an air carriers which transports passengers, cargo or mail.

COVERED EMPLOYEE; FORMER EMPLOYEE; ALLEGED BREACH OF SETTLEMENT AGREEMENT

In Davidson v. Miami Air International, Inc., 2005-AIR-3 (ALJ May 20, 2005), the Complainant charged that the Respondent released personnel documents to another airline in response to subpoenas from that other airline in violation of an earlier AIR21 settlement agreement. The ALJ granted summary judgment to the Respondent on the ground that the Complainant was not a covered employee under AIR21. The ALJ acknowledged that AIR21 coverage can extend to former employees, but only in regard to actions by the Respondent which affect the benefits the Complainant is entitled to as a former employee, his possible re-employment, or his ability to seek other employment. The ALJ found that the complaint did not allege any such actions. The ALJ noted that to the extent that the complaint was seeking enforcement of the settlement agreement, the Complainant was in the wrong forum.

COVERAGE; PRIVATE AIRCRAFT THAT CARRIED LETTERS TO AND FROM OILFIELD NOT ON A POSTAL ROUTE ARE NOT "AIR CARRIERS" WITHIN THE MEANING OF AIR21

In Broomfield v. Shared Services Aviation, 2004-AIR-20 (ALJ Aug. 9, 2004), the ALJ concluded that the Respondent, which partially funds an aviation service to transport workers by aircraft to its oilfields in the North Slope of Alaska, and which often carries mail in cooperation with (but not under contract with) the USPS, is not a covered "air carrier" within the meaning of the whistleblower provision of AIR21. Considered collectively, 49 U.S.C. §§ 40102(a)(2), 40102(a)(5) and 40201(a)(30), and 42121(a) indicate that transportation of U.S. mail is covered by AIR21's whistleblower provision. Under the facts of the case, however, the ALJ found that in the absence of a contractual relationship with the Postal Service, the letters carried by Respondent were not part of the postal system and hence are not mail. There was no evidence of a postal route between Anchorage and the North Slope, and the Respondent's aircraft were merely carrying mail to post offices for mailing, and picking it up for delivery.

DERIVATIVE WHISTLEBLOWER PROTECTION FOR SPOUSES

In Davis v. United Airlines, Inc., 2001-AIR-5 (ALJ Apr. 23, 2002) (ruling on motion for summary judgment), the ALJ found that "the plain language of the AIR Act does not expand its protection to spouses of whistleblowers, where the spouse did not personally engage in a protected activity."

EMPLOYEE COVERAGE; FORMER EMPLOYEE

In Peck v. Safe Air International, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3 (ARB Jan. 30, 2004), the Complainant had once been employed by the Respondent as its Director of Maintenance, but by the time of his protected activity had a relationship with the Respondent where he continued to perform maintenance work for the employer, but no longer on a salary basis. Rather, the Complainant -- who also owned and operated a business servicing and maintaining aircraft for other airlines -- started performing labor in exchange for hanger space. Applying the Darden and Reid tests for delineating employment relationships, the ARB found, essentially, that substantial evidence supported the ALJ's finding that the relationship between the Complainant and the Respondent was not as employer-employee at the time the Complainant's services were terminated. However, the ARB noted that when the ALJ issued his recommended decision, DOL had not yet promulgated AIR21 regulations. When those regulations were published, they defined the term "employee" at 29 C.F.R. § 1979.101 as "an individual presently or formerly working for an air carrier or contractor or subcontractor of an air carrier, an individual applying to work for an air carrier or contractor or subcontractor of an air carrier, or an individual whose employment could be affected by an air carrier or contractor or subcontractor of an air carrier." In other words, under the AIR21 regulations "[c]overage . . . could extend, depending on the surrounding factual circumstances, to former and current employees of air carriers and their contractors and subcontractors, applicants for employment by these entities, and individuals whose employment could be affected by these entities."

The ARB observed that the relationship between the parties in the instant case was not amenable to ready demarcation, and because of uncertainty regarding the application of section 1979.101, it would assume, without deciding, that the Complainant was an employee covered by the AIR21 whistleblower provision. Rather, the ARB decided the case based on its finding that the Complainant had failed to prove that the managers who decided to terminate his services knew about his protected activity, and had failed to prove that his protected activity was a contributing factor in his discharge.

EMPLOYEE/EMPLOYER; AIRPORT SCREENER IS NOT A COVERED EMPLOYEE UNDER AIR21; TSA IS NOT A COVERED EMPLOYER UNDER AIR21

In Fader v. Transportation Security Administration, 2004-AIR-27 (ALJ June 17, 2004), the ALJ determined that an airport screener's recourse for statutory whistleblower protection, as a TSA employee, is with the Office of Special Counsel under the Whistleblower Protection Act, and not the whistleblower provision of AIR21. Moreover, the ALJ found that "[n]o basis has been shown, which would establish that the TSA qualifies as an air carrier, directly or indirectly, under AIR21, or that TSA's statutorily and regulatorily defined federal mission to provide aspects of air carrier safety is dependent upon a contractual relation with an air carrier."

FORMER EMPLOYEE; EMPLOYEE ON DISABILITY RETIREMENT; IMPACT ON SCOPE OF AIR21 REMEDIES

In Friday v. Northwest Airlines, Inc., 2004-AIR-16 and 17 (ALJ June 16, 2004), the ALJ found that a pilot who had taken a disability retirement, and had been adjudicated to have voluntarily terminated his employment with the Respondent in both federal court proceedings and before another ALJ, was not an "employee" for purposes of AIR21 and the regulation at 29 C.F.R. § 1979.101. The Complainant argued that because he was included on the Respondent's seniority list, he was still an employee. The ALJ, however, reviewed the collective bargaining agreement and found that it only established that the Complainant continued to accrue seniority for seven years while on a disability pension, and not that the Complainant was still an employee. The ALJ then described the impact of the Complainant's status as a former employee on AIR21 whistleblower coverage:

Since the Complainant was not a current employee of the Respondent's at the time of many of the various alleged retaliatory actions, the scope of the personnel actions prohibited by AIR 21 is more limited. The general rule, applied in other whistleblower and retaliation contexts is that complainants who are former employees are subject to unfavorable personnel actions when the alleged retaliatory act is related to or arises out of the employment relationship in some way. Charlton v. Paramus Board of Education, 25 F.3d 194, 198-200 (3rd Cir. 1994) (Title VII anti-retaliation provision); Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977) (anti-retaliation provisions of the Fair Labor Standards Act); Delcore v. Northeast Utilities, 90-ERA-37 (Sec'y Mar. 24, 1995) (whistleblower protections of the Energy Reorganization Act).
As a former employee who is on disability retirement, only those actions by the Respondent which affect the benefits the Complainant is entitled to as a former employee, his possible re-employment, or his ability to seek other employment (such as a blacklisting claim), are covered as a personnel action under AIR 21. This includes those rights under the Pilots' Pension Plan provided to pilots whose services with the Respondent have been severed but who are receiving a disability retirement pension under the Pilots' Pension Plan. (RX 35.)

Slip op. at 8.

EVIDENCE

EVIDENCE; ALJ'S EXCLUSION OF TESTIMONY OF COWORKER WHOSE TESTIMONY WAS INTENDED TO SHOW A PATTERN OF RETALIATION WHERE THAT COWORKER WAS NOT SIMILARLY SITUATED

In Barker v. Administrative Review Board, USDOL, No. 08-60128 (5th Cir. Dec. 8, 2008) (per curiam) (unpublished) (case below ARB No. 05-058, ALJ No. 2004-AIR-12), the Petitioner contended that the ARB was arbitrary and capricious in affirming the ALJ's decision to bar portions of a coworker's testimony that described the coworker's theory that he had been fired in retaliation for reporting the company's unsafe aviation practices to the FAA. The Petitioner asserted that the coworker's excluded testimony would have established a pattern of retaliatory firings. The Fifth Circuit, however, observed that the coworker was a manager who was fired individually months earlier, whereas the Petitioner was one of six pilots (out of a total of 10) who were laid off just months before the company went under. The court found that the ARB was not acting in an arbitrary and capricious manner when upheld the ALJ's conclusion that the coworker was not similarly situated to the Petitioner, rendering the subject portion of the coworker's testimony irrelevant. The ALJ had permitted the coworker to provide other relevant testimony.

STATEMENT OF EMPLOYEES WHO DID NOT TESTIFY AT THE HEARING; WHETHER THE STATEMENTS WERE HEARSAY; FAILURE OF COMPLAINANT TO DEPOSE OR SUBPOENA POTENTIAL WITNESSES

In Barber v. Planet Airways, Inc., ARB No. 04-056, ALJ No. 2002-AIR-19 (ARB Apr. 28, 2006), PDF the Complainant argued that the ALJ improperly relied on hearsay evidence when he credited the statements of employees who had not testified at the hearing. The ARB found that the ALJ acted within his discretion in admitting the statements because they were not hearsay, as they were admitted -- not to establish the truth of the complaints -- but only to corroborate the testimony of an HR manager that he had received a large number of employee complaints about the Complainant. The ARB also held that even if they were hearsay, the ALJ could determine under 29 C.F.R. § 1979.17(d) that the statements in themselves had some probative value and were therefore admissible.

The Complainant also argued that the ALJ should have required certain of the Respondent's witnesses who signed statements to testify. The ARB found that the burden of deposing or subpoenaing potential witnesses is on the parties, and not the ALJ.

EVIDENCE; HEARSAY

In Weil v. Planet Airways, Inc., ARB No. 04-074, 2003-AIR-18 (ARB Oct. 31, 2005), the ARB affirmed the ALJ's finding that the Complainant was fired because of his disruptive behavior rather than his protected activity. The ARB found that the Complainant's argument on appeal that the ALJ improperly admitted hearsay evidence was meritless because (a) the Complainant did not show that, in fact, any hearsay evidence was admitted, (b) he failed to object to the admission of hearsay during the hearing, and (c) formal rules of evidence do not apply at hearings brought under AIR21. 29 C.F.R. § 1979.107(d).

EVIDENCE; ADMISSIBILITY OF TAPE RECORDING

In Hirst v. Southeast Airlines, 2003-AIR-47 (ALJ May 26, 2004), the ALJ rejected the Respondent's argument that a tape recording made by the Complainant, allegedly in violation of state law because it was without the consent of all parties, was inadmissible as evidence in an AIR21 whistleblower proceeding. The ALJ acknowledged that an electronic recording without consent of all parties is illegal in Florida, but nonetheless found that the recording was admissible. The recordings did not substantially differ from the recollections of the conversation and both parties' witnesses proved the content of the conversation. The ALJ also noted that his decision would have been the same without the tapes given his credibility determination about the Respondent's witness.

ADMINISTRATIVE NOTICE; COURT OF APPEALS DECISION

In Davis v. United Airlines, Inc., 2001-AIR-5 (ARB Apr. 25, 2002), Respondent submitted a Motion for Court to Take Administrative Notice of a Seventh Circuit Opinion to establish that Complainant participated in a union-orchestrated, systematic, work slowdown or work-to-rule action which resulted in flight delays, conducted in the midst of contentious contract negotiations. In the Seventh Circuit opinion, the court found "clear proof" of the union's complicity. Respondent argued before the ALJ that the present whistleblower dispute must be viewed through the lens of this larger national context."

The ALJ reviewed the law relative to the doctrine of taking administrative notice in administrative proceedings, and accepted Respondent's argument that it is broader in administrative cases than in traditional cases. The ALJ found, however, that

The general rule is that courts can and do take judicial notice of related proceedings in their own jurisdictions and the fact of and procedural history of litigation in other courts. However, while courts can take notice that certain facts were found in another proceeding, they are not bound to accept those facts as true. Weinstein & Berger, Weinstein's Federal Evidence, § 201.12[3], pages 201-33 - 201-37 (2d Ed. 1998) and cases cited therein, at notes 40-40.1. The theory is that such findings are disputable.

With this background, the ALJ ruled:

The Seventh Circuit's opinion makes it clear that the union and UAL disputed the facts of the case. The Seventh Circuit matter is collateral to the issues in the present case. However, it may be both helpful and relevant to establish the factual background in the case sub judice. Relitigating the facts of the earlier dispute between UAL and the union, in this case, would precipitate an untenable and unnecessary burden on the parties and this court. The law is such that I may take administrative notice of the facts found in that proceeding and I do so. However, I will not accept those facts as true, but rather only to show what the work atmosphere at UAL was and the premises UAL was operating under during the time frame surrounding the allegations in the present matter.

(footnotes omitted).

DISCOVERY AND EVIDENCE; PROTECTING SENSITIVE, BUT UNCLASSIFIED INFORMATION POTENTIALLY RELATING TO HOMELAND SECURITY

In Blackburn v. Mesaba Aviation, Inc., 2002-AIR-22 (ALJ Sept. 20, 2002), the ALJ concluded that due to the nature of the case, it might be possible that a party may seek to discover or use sensitive, but unclassified, material regarding weapons of mass destruction or other sensitive records relating to Homeland Security. Thus, the ALJ issued an order directing counsel to bring to the ALJ's immediate attention the potential use of such information so that steps could be take to handle the information appropriately.

DAMAGES

COMPENSATORY DAMGES FOR NONECONOMIC DAMAGE; PAIN AND SUFFERING; SETTING AMOUNT BY COMPARATIVE ANALYSIS

In Vieques Air Link, Inc. v. USDOL, No. 05-01278 (1st Cir. Feb. 2, 2006) (per curiam) (available at 2006 WL 247886) (case below ARB No. 04-021, ALJ No. 2003-AIR-10), the First Circuit affirmed a compensatory damages award of $50,000 for mental anguish as supported by substantial evidence where the Complainant credibly testified that he struggled to support his wife and two infant children while he looked for a new full-time job following his termination by the Respondent. He had been forced to sell both of the family's modest cars and deplete their meager savings to make ends meet. He testified that this ordeal caused him pain and suffering. The court noted that the ALJ had taken into consideration like circumstances found to support similar awards in other cases which had come before the ARB, and that the ARB had agreed with the ALJ's assessment.

DAMAGES; CALCULATION OF A TAX EQUALIZATION ADJUSTMENT DOES NOT REQUIRE A TAX EXPERT

In Sievers v. Alaska Airlines Inc., 2004-AIR-28 (ALJ May 23, 2005), the ALJ accepted the report of Complainant's vocational economic consultant in regard to the calculation of present value of the Complainant's lost earning and tax equalization adjustment ("TEA"). The combined amount totaled over $534,000. The Respondent challenged the TEA on the ground that the consultant was not a tax expert. The ALJ, however, found that there was no expert of any kind at the hearing, that the consultant was eminently qualified as an economics damages expert, and that calculation of a TEA was within his expertise. The ALJ observed that the TEA was based on the fact that the Complainant would receive a large lump sum damages award that would otherwise would have been spread over 12 years (the Complainant's worklife expectancy) and that most of this sum would be taxed at a higher rate as a result. The ALJ found that knowledge of how to calculate a TEA is not so arcane or specialized as to require a tax expert.

COMPENSATORY DAMAGES; CREDIBLE TESTIMONY OF ECONOMIC HARDSHIP; CONSISTENCY WITH PRIOR AWARDS IN SIMILAR CIRCUMSTANCES

In Negron v. Vieques Air Link, Inc., ARB No. 04-021, ALJ No. 2003-AIR-10 (ARB Dec. 30, 2004), appeal docketed sub nom Vieques Air Link, Inc. v. USDOL, No. 05-1278 (1st Cir.), the Respondent had imposed a transfer on the Complainant in retaliation for his protected activity knowing that the Complainant would not be able to absorb with the expenses associated with the transfer. The ARB affirmed the ALJ's compensatory damage award of $50,000 under 49 U.S.C.A. § 42121(b)(3)(B)(iii); 29 C.F.R. § 1979.109(b). The Board found that substantial evidence supported the ALJ's award because the Complainant had testified that he had two young children (including an infant) and that, among other hardships, he was forced to sell his automobiles and deplete his family's savings. The Board deferred to the ALJ's finding that the Complainant testimony in this regard was credible, and observed that the amount of compensatory damages awarded by the ALJ was consistent with amounts awarded in similar cases.

AFTER-ACQUIRED EVIDENCE DOCTRINE; ANGRY E-MAIL SENT BY THE COMPLAINANT

In Clemmons v. Ameristar Airways, Inc., 2004-AIR-11 (ALJ Jan. 14, 2005), the Respondent argued that any back pay award should be cut off as of the date it learned of an inflammatory, angry and improper e-mail sent by the Complainant, a manager, to pilots, which would have resulted in the Complainant's termination from employment (had he not already been terminated). The ALJ, however, found that "extraordinary equitable circumstances existed in that the Respondents' own behaviors induced the e-mail and that absent the disparate treatment of the Complainant, he would not have had cause to send out the angry message." The ALJ therefore concluded that the after-acquired evidence doctrine should not be applied to limit the back pay award.

REINSTATEMENT

PRELIMINARY OSHA REINSTATEMENT ORDER; ALJ'S DISMISSAL NULLIFIES; DISTRICT COURT'S FAILURE TO ENFORCE REINSTATEMENT ORDER BECAME MOOT ISSUE AFTER DISMISSAL OF COMPLAINT AFFIRMED; DAMAGES FOR DELAY IN REINSTATEMENT NOT SUPPORTED BY STATUTE AND WOULD RESULT IN UNJUSTIFIED WINDFALL

In Rollins v. American Airlines, Inc., No. 06-5135 (10th Cir. May 28, 2008) (case below D.C. No. 04-CV-224-JHP-SAJ (N.D.OKla.); ARB No. 04-140; ALJ No. 2004-AIR-9), OSHA had ordered reinstatement of the Complainant under AIR21, but the ALJ found the complaint to be untimely. The ARB affirmed the ALJ's holding. The 10th Circuit affirmed the ARB. In the interim, the Complainant had filed an action in federal district court seeking enforcement of OSHA's reinstatement order. The district count found that the ALJ's decision had immediately nullified the reinstatement order. On appeal to the 10th Circuit, the Complainant argued that the district court had misinterpreted the regulations.

The 10th Circuit found that the issue of reinstatement was now moot given that the ARB's decision had been affirmed. The Complainant argued that if the district court erred in refusing to enforce the order when it was in effect, he would be entitled to a remedy. The 10th Circuit found that this contention was raised too late, and that AIR21 did not appear to authorize damages for delay in reinstatement. The court also wrote: "Moreover, given the dismissal of the underlying administrative action as untimely––demonstrating that the reinstatement order should not have been entered in the first place––damages for the delay in its effectuation would at this point reflect an unjustified windfall. These considerations counsel against any exercise of our discretion that would allow Mr. Rollins to belatedly interject a damages request so as to resuscitate his moot enforcement claim." (Slip op. at 5) (footnote omitted).

The court noted that some courts had raised practical concerns about enforcing preliminary enforcement orders in support of a finding of a lack of jurisdiction to do so, but declined to analyze this issue because of the disposition on mootness grounds.

REINSTATEMENT; WHERE ALJ DID NOT ORDER REINSTATEMENT BASED ON COMPLAINANT'S STATEMENT THAT HE DID NOT WANT HIS JOB BACK, AND NO PARTY APPEALED THIS POINT, THE ARB FOUND THAT REINSTATEMENT AS A REMEDY WAS WAIVED ON APPEAL

In Rooks v. Planet Airways, Inc., ARB No. 04-092, ALJ No. 2003-AIR-35 (ARB June 28, 2006), the Complainant testified that he did not want his job back and the ALJ did not order reinstatement upon finding that the complaint was meritorious. On review, the ARB recited caselaw holding that the preference of a prevailing complainant is not determinative on whether reinstatement or an alternative remedy such as front pay was available. The ARB stated that reinstatement would have been an appropriate remedy, but -- because neither party raised an issue on appeal concerning reinstatement -- it "deem[ed] the issue of reinstatement waived and accept[ed] the ALJ's recommended remedy of back pay."

BONA FIDE OFFER OF REINSTATEMENT; MOTIVE OF EMPLOYER TO CIRCUMVENT LIABILITY IS NOT RELEVANT

In Hirst v. Southeast Airlines, Inc., ARB Nos. 04-116, 04-160, ALJ No. 2003-AIR-47 (ARB Jan. 31, 2007), PDF | HTM the ALJ made a finding that the Respondent made an offer of reinstatement only after realizing that termination of the Complainant violated AIR21 and its implementing regulations. The ALJ, therefore, concluded that the offer was not bona fide because it was only asserted to circumvent liability. Thus, the ALJ found that the Complainant reasonably rejected the offer and was entitled to back pay from the date he was discharged until he regained full employment as a pilot.

The ARB found, however, that the Respondent's motive in offering reinstatement was not relevant. "Instead, an employer makes a bona fide offer of reinstatement when it unconditionally offers the same or a comparable position as the one held before an unlawful discharge." Slip op. at 8 (footnote omitted).

The ARB also found that the Complainant did not suffer adverse action. Thus, the ALJ's use of the wrong standard for determining whether a bona fide reinstatement offer had been made -- which goes to back pay and reinstatement remedies -- was harmless error.

REINSTATEMENT; OSHA'S PRELIMINARY ORDER OF REINSTATEMENT IS LIFTED UPON AN ALJ'S ORDER OF DISMISSAL OF THE COMPLAINT DURING THE PENDENCY OF AN APPEAL TO THE ARB

In Rollins v. American Airlines, Inc., No. 04-CV-224 (N.D.Ok. June 15, 2006) (case below 2004-AIR-9), OSHA had ordered reinstatement of the Complainant, which under the AIR21 regulations became effective immediately. The parties, however, were unable to agree on what constituted a comparable position, and the Complainant rejected the Respondent's reinstatement offer and instituted an enforcement proceeding in federal district court. In the meantime, the Respondent had requested a hearing before an ALJ, who eventually found in its favor and dismissed the complaint. The Complainant appealed to the ARB, where the case was still pending at the time that the district court ruled on the enforcement action. The court found that, under the AIR21 regulations, the ALJ's dismissal of the complaint had the effect of lifting the OSHA reinstatement order. The Complainant argued that OSHA's reinstatement order survived the appeal to the ARB, but the court found that the intent of the regulations was clear – that the Complainant's status coming out of the ALJ's proceedings is maintained during the ARB proceedings. The court expressed sympathy with the Complainant's policy argument that the crux of the problem was that DOL had had the matter under consideration for 10 months, which was well beyond the 120 day period contemplated by the AIR21 statute, but held that such delay did not justify a tortured reading of the regulations.

FAILURE TO REINSTATE; REMEDY FOR

The Complainant requested an opportunity to supplement or reopen the record to show that because the Respondent failed to reinstate him as ordered by the ALJ, the ARB should convert the reinstatement order into an order for front pay. The ARB denied the request, stating that the remedy for a failure to reinstate lies with a district court and not the ARB. See 49 U.S.C.A. § 42121(b)(6). Lebo v. Piedmont-Hawthorne, ARB No. 04-020, ALJ No. 2003-AIR-25 (ARB Aug. 30, 2005).

ATTORNEY'S FEES

ATTORNEY'S FEES; CHARGE FOR TRAVEL TIME SET AT ONE-HALF THE ATTORNEY'S REASONABLE HOURLY RATE

In Merritt v. Allegheny Airlines, Inc., 2004-AIR-13 (ALJ Mar. 28, 2005), the ALJ found that the Complainant's attorney's bill for driving between Rochester, New York and Harrisburg, Pennsylvania was reasonably incurred. The hearing location had originally been in Rochester, but moved to Harrisburg at the Respondent's request for the convenience of its witnesses. The ALJ, however, found that only one-half of the Complainant's attorney's reasonable hourly fee was reasonably charged for travel time.

ATTORNEY'S FEES FOR WORK BEFORE THE ARB; ARGUMENT THAT RESPONDENT'S APPEAL HAD MERIT IS NOT GROUNDS FOR DENIAL OF FEE AWARD

In Negron v. Vieques Air Link, Inc., ARB No. 04-021, ALJ No. 2003-AIR-10 (ARB Mar. 7, 2006), the Respondent challenged the Complainant's fee petition for work before the ARB on the ground that its appeal challenging the ALJ's decision had merit even though the ARB eventually sustained the ALJ's decision in favor of the Complainant. The ARB found that this is not a ground upon which an award of attorney's fees could be denied.

ATTORNEY'S FEES FOR WORK BEFORE THE ARB; COMPLAINANT'S ATTORNEY IS NOT REQUIRED TO DIVULGE FEE ARRANGEMENTS WITH OTHER CLIENTS TO JUSTIFY AN HOURLY RATE

In Negron v. Vieques Air Link, Inc., ARB No. 04-021, ALJ No. 2003-AIR-10 (ARB Mar. 7, 2006), the Respondent challenged the Complainant's fee petition for work before the ARB on the ground that the fee petition failed to indicate the hourly rate that the Complainant's attorney charges for cases similar to the Complainant's, an argument that was raised before the ALJ in regard to that fee petition. The ARB agreed with the ALJ that AIR21 "contains no requirement that attorneys justify their billing rates by revealing fee arrangements made with other clients." Slip op. at 2.

ATTORNEY'S FEES FOR WORK BEFORE THE ARB; CHALLENGE TO FEE PETITION BASED ON ALLEGATION OF LACK OF ADEQUATE DETAIL REJECTED WHERE RESPONDENT DID NOT CHALLENGE ANY PARTICULAR ENTRY AND THE PETITION AND THE PETITION WAS OTHERWISE ADEQUATE

In Negron v. Vieques Air Link, Inc., ARB No. 04-021, ALJ No. 2003-AIR-10 (ARB Mar. 7, 2006), the Respondent challenged the Complainant's fee petition for work before the ARB on the ground that the fee petition allegedly did not clearly state the attorney's hourly rate and did not contain a clear itemization of the complexity and type of services rendered. The ARB rejected this argument where the Respondent failed to challenge any particular time entry and the fee petition contained an itemized list of time billed on the matter that clearly described the services rendered and the rate charged. The ARB found the detail adequate and the stated overall number of hours for out-of-court service (29.25 hours) reasonable.

DISMISSALS

DISMISSAL FOR CAUSE; FAILURE TO FILE OPENING BRIEF OR RESPOND TO ARB'S ORDER TO SHOW CAUSE

In Pohl v United Airlines, ARB No. 06-122, ALJ No. 2003-AIR-16 (ARB Mar. 18, 2008), the ARB dismissed the Complainant's appeal where he failed to file an opening brief and did not respond to the ARB's order to show cause why the appeal should not be dismissed for failure to timely prosecute the appeal.

DISMISSAL FOR CAUSE; COMPLAINANT'S FAILURE TO COMPLY WITH ALJ'S ORDERS DIRECTING RESPONSES TO RESPONDENT'S INTERROGATORIES AND DISCOVERY REQUESTS

In Powers v. Pinnacle Airlines, Inc., ARB No. 05-022, ALJ No. 2004-AIR-32 (ARB Jan. 31, 2006), the ARB affirmed the ALJ's dismissal of the complaint based on the Complainant's failure to file adequate responses to the Respondent's interrogatories or any response to its discovery requests. The ARB found that the ALJ had given the Complainant more that adequate opportunities to comply and that the Complainant had been well aware of the consequences of refusal to comply. The ARB found that the Complainant failed on review to establish any basis for holding that the ALJ had incorrectly concluded that the response to the interrogatories was essentially a non-response. The Board found that 29 C.F.R. § 18.6(2)(v) provided authority for the ALJ to deny a complaint for failing to comply with an order directing a party to respond to interrogatories or to produce documents, and cited Supervan, Inc., ARB No. 00-008, ALJ No. 1994-SCA-14 (ARB Sept. 30, 2004), for the proposition that the ALJ must have the authority to dismiss cases involving flagrant non-compliance with discovery requests to deter others from disregarding such orders.

ONCE FACTS BEYOND THOSE ALLEGED IN THE COMPLAINT ARE REVIEWED, MOTION TO DISMISS IS TREATED AS A MOTION FOR SUMMARY DECISION

DISMISSAL FOR CAUSE; REFUSAL TO COMPLY WITH BOARD'S PAGE LIMITS FOR APPELLATE BRIEFS

In Powers v. Pinnacle Airlines, Inc., ARB No. 04-102, 2004-AIR-6 (ARB Dec. 30, 2004) (reissued Jan. 5, 2005), recon. denied (ARB Feb. 17, 2005), appeal docketed sub nom Powers v. USDOL, No. 05-3266 (6th Cir.), the ARB dismissed the Complainant's complaint for failure to file a conforming brief. The Board imposes page limits on briefs, and based on prior experience with the Complainant expressly informed her that: "The initial brief should provide original legal argument in support of the Complainant's claims without relying on incorporation of analysis from the Complainant's previous filings." The Complainant thereafter filed a series of motions for enlargement and for other relief, and when she ultimately did file her brief, it was replete with incorporations by reference and references to other filings.

The Board observed that the Federal Rules of Appellate Procedure do not permit incorporation in briefs of documents and pleadings filed in district courts. The Board observed that dismissal of an appeal for failure to file a conforming brief is a very serious sanction, not to be imposed lightly. Nonetheless, the Complainant's failure to conform her brief to the ARB's express and unambiguous directions was blatant. The Board noted that in a previous case involving this Complainant, it had considered the lesser sanction of only requiring the Respondent to respond to the conforming part of the Complainant's brief, but that if the Complainant had relied on the possibility of that lesser sanction, she had seriously misjudged the Board's resolve, as clearly stated in its orders, that unless she filed a conforming brief, the Board would dismiss her appeal. See Powers v. Pinnacle Airlines, Inc., ARB No. 04-035, ALJ No. 2003-AIR-012 (ARB Sept. 28, 2004)(Board dismissed Powers's appeal for failure to file a conforming brief)(appeal to the United States Court of Appeals for the Sixth Circuit pending).

STIPULATED DISMISSAL AGAINST SINGLE RESPONDENT

In Davidson v. Miami Air International, Inc., 2005-AIR-3 (ALJ May 16, 2005), the Complainant filed a motion to dismiss his complaint with prejudice against one of the Respondents. That Respondent filed a statement voicing no objection to the Complainant's motion. The ALJ interpreted the filing as a stipulated dismissal under Rule 41(a)(1)(ii), and noted that there was split in authority regarding the applicability of that Rule where the dismissal relates only to a single defendant. Since the matter arose in the 11th Circuit which permits such dismissals under Rule 41(a)(1) against a single defendant, the ALJ granted the Complainant's motion.

DISMISSAL FOR CAUSE; KNOWING AND VOLUNTARY WITHDRAWAL; FAILURE TO PROSECUTE

In Harnois v. American Eagle Airlines, 2002-AIR-17 (ALJ Sept. 9, 2002), the Respondent filed a motion seeking an order compelling Complainant to comply with discovery requests. The ALJ issued an order setting out the Complainant's obligations relative to discovery and directing Complainant to address whether the case was in a posture to proceed to hearing. Complainant responded complaining that he had received a notice of deposition only one day before it was scheduled and that Respondent's discovery time-frames were unreasonable. Complainant also, apparently frustrated with the DOL handling of the case prior to referral to the OALJ, and in the apparent belief that he could not obtain a fair hearing, moved to withdraw his objection to the Secretary's findings, stating that he might appeal to Congress for an investigation by another agency. The ALJ continued the case, made a number of procedural rulings, encouraged Complainant to find an attorney, and declined to accept Complainant's motion to withdraw. Noting that acceptance of a withdrawal motion is discretionary, the ALJ concluded that a withdrawal must be made "knowingly and voluntarily and that withdrawal under the circumstances [must] not [be] inconsistent with the important policies underlying the Act." The ALJ, considering ALJ's pro se status, and the grounds stated by Complainant for withdrawal, declined to approve withdrawal.

Thereafter, Complainant sent a letter to the ALJ which, inter alia, requested that DOL cease any involvement with the complaint. The ALJ issued an order relating to the letter which, inter alia, made some discovery rulings, and denied withdrawal of the appeal. The order, however, permitted Complainant to renew his withdrawal of objections with the knowledge that such a dismissal would be final. Thereafter, Respondent moved to dismiss based on Complainant's failure to comply with the earlier discovery order. The ALJ issued an order to show cause, and Complainant did not respond. Based on the circumstances, the ALJ granted Respondent's motion to dismiss.

DISMISSAL FOR CAUSE; FAILURE TO COMPLY WITH ALJ'S ORDER FOR SUBMISSION OF PREHEARING STATEMENTS

In Hafer v. United Air Lines, 2002-AIR-5 (ALJ June 11, 2002), the ALJ dismissed the case after Complainant failed to timely submit a prehearing statement of position, despite warnings that failure to do so could result in sanctions. The ALJ acknowledged that the sanction of dismissal was extreme, but took into account that there had been several failures by Complainant and that Complainant was represented by counsel. The ALJ noted that it might appear that a lesser sanction of prohibiting Complainant from presenting witnesses or exhibits would be appropriate, but that if Complainant could not present witnesses or evidence, the hearing would be a meaningless exercise.

MISCONDUCT AND SANCTIONS

SANCTION FOR FRIVOLOUS CLAIM; RESPONDENT'S BURDEN IS TO SHOW COMPLAINT LACKED ARGUABLE BASIS IN EITHER LAW OR FACT

In Powers v. Pinnacle Airlines, Inc., ARB No. 05-022, ALJ No. 2004-AIR-32 (ARB Jan. 31, 2006), the ARB affirmed the ALJ's dismissal of the complaint based on the Complainant's failure to file adequate responses to the Respondent's interrogatories or any response to its discovery requests, despite having several opportunities to comply. The Respondent requested in its appellate brief that the ARB find that the complaint was frivolous and brought in bad faith and order the Complainant to pay an attorney's fee of $1000 under 29 C.F.R. § 1979.110(e). The Board held that to prevail on such a request the Respondent was required to demonstrate that the complaint lacked an arguable basis in either law or fact. Allison v. Delta Air Lines, Inc., ARB No. 03-150, ALJ No. 2003-AIR-14, slip op. at 6 (ARB Sept. 30, 2004). Because the brief did not address this requirement, the ARB denied the request.

FRIVOLOUS COMPLAINT SANCTION; FACTS AS DETERMINED THROUGH LITIGATION DO NOT NEGATE COMPLAINANT'S ORIGINAL, SINCERE SUSPICION THAT PROTECTED ACTIVITY PLAYED A ROLE IN HER LAYOFF

In Parshley v. America West Airlines, 2002-AIR-10 (ALJ Aug. 5, 2002), the ALJ declined to order Complainant to pay attorney fees up to $1,000 to Respondent based on the frivolous complaint sanction of 49 U.S.C. § 42121(b)(3)(C) and 29 C.F.R. § 1979.109(b), where Complainant had been able to establish a prima facie case and had established inconsistencies between Complainant's formal performance appraisals, advancement in the company, and subsequent selection for termination on the basis of performance. The ALJ found that Complainant had an understandable and sincere suspicion that her protected activity had been involved in her termination, even though the facts as developed through litigation failed to confirm her suspicion.

COMPLAINT WHICH WAS ALLEGEDLY FRIVOLOUS OR BROUGHT IN BAD FAITH; REQUEST FOR ATTORNEYS' FEES

In Peck v. Safe Air International, Inc., ARB No. 02-028, ALJ No. 2001-AIR-3 (ARB Jan. 30, 2004), the Respondent requested that it be awarded attorney's fees. The Board noted that if a complaint brought under AIR21 section 519 is found to be frivolous or brought in bad faith, it could "'award to the prevailing employer a reasonable attorney's fee not exceeding $1,000.' 49 U.S.C.A. § 42121(b)(3)(C). See 29 C.F.R. § 1979.109(b) (ALJ award); 29 C.F.R. § 1979.110(e) (ARB award)." The ARB declined to award such fees, quoting the ALJ's findings that the Complainant had maintained "a firm and sincere belief that he had been the victim of a retaliatory termination" thereby precluding a finding of bad faith, that Peck's conclusion as to coverage "was understandable and not frivolous," and that the circumstances surrounding the discrimination complaint, including the temporal proximity between protected activity and unfavorable personnel action, prevented the complaint from being characterized as frivolous.

See also Kinser v. Mesaba Aviation, Inc., 2003-AIR-7 (ALJ Feb. 9, 2004) (ALJ declined to award fees where Complainant was " understandably suspicious about the motivations behind the adverse employment actions he suffered," and had established temporal proximity, but ultimately was not successful in confirming his suspicions; discussion of meaning of "frivolous" and "meritless").

ATTORNEY CONDUCT; BARRING ENTRY OF APPEARANCE AND ANY REPRESENTATION OF COMPLAINANT

In Powers v. Pinnacle Airlines, Inc., 2003-AIR-12 (ALJ Apr. 23, 2003), the ALJ issued an order to show cause why the complaint should not be dismissed based on Complainant's failure to cooperate in discovery and based on her conduct in filing legally frivolous, dilatory, redundant, misleading, and inaccurate pleadings with the Court. Eventually, Complainant informed the ALJ that she no longer wished to be represented by her attorney, and the ALJ dismissed the attorney from the case. Powers v. Pinnacle Airlines, Inc., 2003-AIR-12 (ALJ May 12, 2003). Subsequently, however, Complainant asserted that she might intend to re-employ the attorney, and the ALJ proceeded to rule on an earlier filed motion to disqualify the attorney, and held that the attorney would be barred from entering an appearance on behalf of the Claimant, or otherwise representing her in this matter. Powers v. Pinnacle Airlines, Inc., 2003-AIR-12 (ALJ May 21, 2003). The ALJ detailed the conduct of the attorney, which had essentially prompted the earlier order to show cause, and wrote:

The Complainant and her counsel have every right to make vigorous arguments in support of her positions. Neither, however, is entitled to make misleading and factually incorrect statements, to flood the Court with boilerplate and string citations that have nothing to do with the issues presented by this case, and to repeatedly ignore the directives of this Court. Nor is either entitled to attack the dignity and integrity of this Court, in the hopes that I will recuse myself and the Complainant will have another chance with a different judge.

DELIBERATE VIOLATION

DELIBERATE VIOLATION OF AIR CARRIER SAFETY REQUIREMENT AS PREVENTING COVERAGE

The ARB found that substantial evidence supported the ALJ's determination that 49 U.S.C. § 4121(d) did not apply to prevent coverage of the Complainant's complaint under AIR21. The Respondent alleged that the Complainant had stated that he had purposely mishandled a repair job to make a point. The Complainant consistently denied making the statement, and it was first presented in attorney-prepared affidavits over a year after the Complainant's discharge. Lebo v. Piedmont-Hawthorne, ARB No. 04-020, ALJ No. 2003-AIR-25 (ARB Aug. 30, 2005).

SETTLEMENTS

SETTLEMENTS; AIR21 SETTLEMENT REACHED DURING ARB REVIEW MUST BE SUBMITTED TO ARB FOR APPROVAL

Pursuant to 29 C.F.R. 1979.111(2), the parties are required to submit any settlement agreement reached while the case is pending before the ARB to the ARB for approval. Baena v. Atlas Air, Inc., ARB No. 03-008, ALJ No. 2002-AIR-4 (ARB Nov. 18, 2002). See also Baena v. Atlas Air, Inc., ARB No. 03-008, ALJ No. 2002-AIR-4 (ARB Jan. 10, 2003).

SETTLEMENT; AGREEMENT IS NOT VOIDABLE ON THE BASIS OF LACK OF COUNSEL OR FINANCIAL STRESS

In Trechak v. American Airlines, Inc., ARB No. 03-141, ALJ No. 2003-AIR-5 (ALJ Mar. 19, 2004), the Complainant argued that she should be permitted to be released from a settlement agreement because she signed the agreement against her better judgment when she and her family were ill and desperately in need of money, because she did not have counsel at the time of the settlement during a workers' compensation hearing, and because the Respondent had acted unreasonably in denying her request for 24 hours to think about the offer and get advice.

The ARB noted that it had held in Beliveau v. Naval Undersea Warfare Ctr., ARB No. 99-070, ALJ No. 1997-SDW-6 (ARB June 30, 1999), that "an opposing party's improper conduct may render a settlement agreement voidable,"but had not addressed the specific question whether economic stress and/or lack of counsel can be grounds for voiding a settlement agreement. The Board ruled that "neither lack of counsel, nor financial stress, nor the combination of the two, can be grounds for voiding a settlement agreement. Were it otherwise, employers would have no reason to settle with employees in financial straits or employees acting pro se." The Board also found that the circumstances did not establish that the Respondent's refusal to allow 24 hours to consider the offer to be an unfair manipulation. Rather, the settlement was offered to avoid putting on witnesses on the day of the offer. In addition, the Complainant did not challenge the Respondent's claim that she accepted the offer with the assistance of the workers' compensation court's Administrative Officer, and did not indicate that she was misled by the Respondent as to the terms of the agreement.

RELATIONSHIP TO OTHER LAWS

ARB'S JURISDICTION TO CONSIDER CONSTITUTIONAL ISSUES

In Williams v. United Airlines, ARB No. 06-106, ALJ No. 2003-AIR-11 (ARB Apr. 30, 2008), the ARB held that it did not have jurisdiction to consider the Complainant's argument that he has a constitutional right to a hearing on his AIR21whistleblower complaint even though the Respondent had been discharged in bankruptcy.

ISSUE PRECLUSION; COLLATERAL ESTOPPEL; EFFECT OF OSHA FINDING THAT WAS NOT TIMELY APPEALED FOR AN ALJ HEARING

In Murray v. Alaska Airlines, Inc., No. 06-15847 (9th Cir. Apr. 10, 2008), OSHA had investigated the Plaintiff's AIR21 whistleblower complaint but found a lack of causation. Despite notice of the opportunity to request a de novo hearing before an ALJ, the Plaintiff neither requested a hearing nor withdrew his complaint. Thus, the OSHA finding became the Secretary's final decision by operation of law. Subsequently, the Plaintiff filed a state whistleblower claim in California state court. The Defendant removed the case to federal court based on diversity jurisdiction and the district court dismissed based on collateral estoppel. On appeal to the Ninth Circuit, the court issued an Order Requesting That the Supreme Court of California Decide a Question of California Law. The court framed the issue as:

Should issue-preclusive effect be given to a federal agency's investigative findings, when the subsequent administrative process provides the complainant the option of a formal adjudicatory hearing to determine the contested issues de novo, as well as subsequent judicial review of that determination, but the complainant elects not to invoke his right to that additional process?

The court found that California state law would control, but found that:

There do not appear to be squarely controlling California cases addressing whether an "opportunity to litigate" requires that an actual hearing with adequate procedural safeguards take place, or if instead it is enough that the agency's procedures afford the complainant the right to seek an adjudicatory hearing after the findings are made.

PREEMPTION; STATE EMPLOYEE PROTECTION LAW

In Gary v. The Air Group, Inc., No. 02-3534 (3rd Cir. Dec. 16, 2004), the Third Circuit held that a pilot's complaint brought under New Jersey's Conscientious Employee Protection Act was not preempted by the Airline Deregulation Act as amended by the Whistleblower Protection program at 29 U.S.C. 42121 where the claim was not "related to" the "service of an air carrier" within the meaning of 49 U.S.C. 41713(b)(3). In so ruling, the court found the Eleventh Circuit's analysis in Branche v. Airtran Airways, Inc., 343 F.3d 1248 (11th Cir. 2003) more persuasive than the Eight Circuit's analysis in Botz v. Omni Air Int'l, 286 F.3d 488 (8th Cir. 2002).

RES JUDICATA

RES JUDICATA EFFECT OF DOL DECISIONS IN BANKRUPTCY COURT

In In re Northwest Airlines Corp., No. 05-17930 (Bkrtcy.S.D.N.Y. Aug. 25, 2008) (2008 wl 4019847) (related to 2003-AIR-19 and 20, 2004-AIR-16 and 17), a former pilot for a Debtor before the bankruptcy court filed a claim seeking an unsecured priority claim for wages, compensatory damages and lost sick and vacation pay relating to several federal and administrative claims he had filed against the Debtor. A series of those claims were AIR21 whistleblower complaints adjudicated by DOL’s Office of Administrative Law Judges (OALJ) and Administrative Review Board (ARB). The bankruptcy court found that all of the pilot's claims were barred. In regard to the AIR21 whistleblower claims, the bankruptcy court found that the administrative agency decisions of the ARB and OALJ had res judicata effect, as they were acting as judicial bodies and allowed the parties to fully litigate their claims. The bankruptcy court also found that the AIR21 claims were barred because the pilot had not pursued the AIR21 appeal procedures on his OALJ claims.

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