As such, it is not subject to our interference. And if it were, we would not disturb the disposition of this administrative proceeding on
[Page 7]
the basis of the alleged oral complaint, given the equivocal nature of the proffered evidence of the complaint, see supra note 3, and the availability of this evidence from Mr. Rollins' own former attorney.
The petition for review is DENIED and the decision of the Administrative Review Board is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
[ENDNOTES]
* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1 We note that § 42121(a) prohibits air carriers from "discharg[ing] an employee or otherwise discriminat[ing] against an employee with respect to compensation, terms, conditions, or privileges of employment." (Emphasis added).
2 The ALJ divided the challenged disciplinary action into two components, one consisting of the advisory and the other of the termination, and applied § 42121(b) to each, holding the complaint time barred as to the advisory but not as to the termination. The ALJ went on to reject the latter claim on the merits for lack of evidence that the termination was an independently discriminatory act, i.e., evidence showing that Mr. Rollins' would not have been terminated, despite his rejection of the alternatives in the advisory, had he not been a whistleblower (showing, for example, that other employees were not terminated after rejecting similar advisories).
3 We note that the attorney's affidavit does not actually say she lodged an oral complaint (and there is no agency record acknowledging such a complaint). Rather, it indicates only that she spoke with agency personnel about how and where to file the written complaint. See R, Vol. 5, doc. 32, ex. II.
4 The only Board decision he cites in his briefing concerns the treatment of newly discovered evidence relating to issues raised before and determined by the ALJ, see Timmons v. Mattingly Testing Serv., No. 95-ERA-40, 1996 WL 363348 (Admin. Rev. Bd. June 21, 1996) (discussing new evidence bolstering claimant's showing of retaliatory motive). That is, of course, a matter distinct from the interjection of entirely new arguments on appeal, and procedural uniformity does not require that the Board's approach to the one dictate or constrain its approach to the other.