Daniel v. TIMCO Aviation Services, Inc., 2002-AIR-26 (ALJ June 11, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Issue Date: 11 June 2003
Case No. 2002-AIR-00026

.....................................................
In the Matter of

DAVID P. DANIEL
    Complainant

    v.

TIMCO Aviation Services, Inc.
    Respondent
.....................................................

Before: Stuart A. Levin
    Administrative Law judge

For Complainant: David Daniel, Pro se

For Respondent TIMCO: Jonathan W. Yarbrough, Esq.;
    Edwards, Ballard, Bishop, Sturm, Clark, and Keim, P.A.
    Ashville, N.C.

   This matter arises pursuant to a complaint filed under the Wendal H. Ford Aviation Investment and Reform Act, 49 U.S.C. 42121(hereinafter, "AIR 21") by David P. Daniel, a Quality Control Inspector employed by Respondent, TIMCO. TIMCO provides contract maintenance services for large commercial aircraft. Daniel alleges that TIMCO fired him on May 14, 2002, because he had, inter alia, earlier reported to the Federal Aviation Administration that TIMCO serviced and installed an oxygen bottle in an aircraft without proper documentation. TIMCO, in turn, denies Daniel's charge of retaliation. It contends that it fired him for good and sufficient reason unrelated to any activity protected by AIR 21 when Daniel was allegedly caught sleeping in the tail section of a Boeing 767 he was assigned to inspect.

   Following a period of discovery, a hearing convened on the merits of the complaint. Sixteen witnesses were called to testify and eighteen documents were offered into evidence, seventeen of which were admitted. The findings and conclusions which follow are based upon a careful consideration of the record evidence, the arguments presented by the parties, and the applicable case law.

   1. TIMCO Aviation Services Inc. is the largest independent commercial jet maintenance, repair, modification, overhaul and aircraft storage service provider in the United States. The company currently operates five maintenance, repair, and overhaul businesses in several cities. Its corporate headquarters are located in Greensboro, N.C., and the circumstances which gave rise to this proceeding occurred at its Greensboro maintenance facility. Complainant, David Daniel was a Quality Control Inspector employed at that facility. Tr. 104.

   2. At Greensboro, TIMCO operates a 600,000 square foot facility for the heavy maintenance and overhaul of commercial transport and cargo aircraft and their components, parts, and accessories. Tr. 262. It is an FAA, JAA and CAA certified Class IV (unlimited) facility containing three wide body hangars, and a Hangar IV complex for narrow body aircraft. Hangar IV also houses the TIMCO Engineering group and is the center of shipping, receiving and various administrative functions.

   3. The FAA Flight Standards Office 5 is located at the airport in Greensboro. Dewayne Burns is an Assistant Principle Maintenance Inspector in that office. Tr. 274. The FAA has an anonymous hotline posted in TIMCO facilities. Tr. 268-69.

   4. Roy Rimmer is TIMCO's CEO and the Chairman of its Board. Don Mitacek is Vice President and General Manager of TIMCO's Greensboro, N.C. facility. Robert McClellan is the Manager of Quality. Tr. 273. He supervises the inspection department, the production controllers, and TIMCO's chain-of-records controls. Tr. 274. Pete Morgan is TIMCO's Chief Inspector at the Greensboro facility. Tr. 217. James Childers is an Inspection Lead at TIMCO. David Latimer is the Vice President for Regulatory Compliance at TIMCO. He investigated Daniel's charges of harassment. Tr. 26.

   5. When an aircraft arrives at TIMCO, it undergoes an initial inspection, and "cards" are prepared designating "routine" and "non-routine" work the aircraft may require. Work associated with the customer's requests is shown on the "routine" cards. Tr. 184. The card provides fairly specific details on the work needed, and "how to inspect an area or to work a certain part." Tr. 112-113. The planning department then assigns an amount of time required to work the "routine" cards, and if the work is not completed in the amount of time allotted, it's called "running over." Tr. 113.

   6. The record shows that "Non-routine" cards are generated when TIMCO inspectors detect problems during the course of the maintenance or service checks which were not noted on the "routine" cards. Tr. 185. Discrepancies noted during routine maintenance are reported as non-routine to indicate work that needs to be addressed. Tr. 28. When these are found, the inspector insures that maintenance "buy backs" from the non-routines are performed in accordance with the regulations. Tr. 185.

   7. During a final walk-around on a United Airlines, Boeing 737, on or about August 15, 2001, it was noted that a crew oxygen bottle was pressurized to 1500psi rather than 1800 psi as required after heavy maintenance. As a result, the bottle was removed and serviced to 1800 psi. A final "routine" card was prepared for this service.

   8. Upon inspection of the aircraft, Daniel correctly noted that the documentation showing "routine" service was incorrect and should be changed to a "non-routine" card. He prepared a "Work Reject Notice," CX 1; Tr. 22, and in late August or early September, 2001, he reported the matter to the FAA. Tr. 22; Tr. 238-40; CX. 1. He spoke with Inspector Burns and advised him that a violation may have occurred. Tr. 126.

    9. In response to Daniel's information, Inspector Burns called McClellan and advised him that he had received a call about an oxygen bottle on a United 737. Tr. 275. Burns did not identify the informant. Tr. 275. McClellan testified that he was unaware of the identity of the informant for several months before he heard "some hanger clatter" that Daniel was the informant. Tr. 276; Tr. 282. After receiving the call from Inspector Burns, McClellan contacted a supervisor in the hanger to let them know that Inspector Burns was heading their way. Tr. 283.

   10. Inspector Burns subsequently visited TIMCO's facility and investigated the oxygen bottle documentation. Following his inquiry, he determined that the matter could be resolved without a letter of investigation. Tr. 276.

   11. Daniel believes his work environment changed significantly after he contacted the FAA. During an eight month period immediately following his call, he claims he was targeted for harassment and retaliation eventually leading to his termination. The record does not reflect the exact chronology of each instance of alleged harassment, but it appears that his concerns, prior to the final termination, focus on six separate incidents which occurred in roughly the following sequence:

   The record shows that an inspector must o.k. the installation of any panel which covers a major aircraft component, and when an inspector signs off on a job, the inspector is responsible for the work. Tr. 118. On July 4, 2001, Daniel inspected and signed off on the installation of a ceiling panel which covered an air conditioning duct above the passenger compartment in a United Airlines aircraft. Tr.111. Three months later, United noted that the air conditioning had poor circulation in certain rows, and an investigation revealed that the air conditioning duct above the ceiling panel was loose. Tr. 118. United complained to TIMCO. Tr. 118.

   As previously noted, TIMCO provides heavy check services, and typically it works in areas of an aircraft that will not be opened again until the next heavy check cycle unless discrepancies are noted by the customer. Tr. 262. As such, it is not unusual for a customer like United to contact TIMCO about a problem months after TIMCO completed its work. Tr. 262-63.

   When a customer complains to TIMCO, it investigates the problem as it did in response to United's experience. Its quality control procedures permit it to trace all parts and jobs back to the employee responsible for the work, and it routinely does backtrack to the responsible employee; in this instance, Daniel.

   Although Daniel testified that Morgan told him he had discretion to reprimand or not and he elected to write it up, Tr. 120; 122. Tr. 227-230; Morgan testified that TIMCO conducts an investigation anytime it receives a customer complaint, and documentation of verbal counseling is routinely administered as the first level of disciplinary action whenever a customer complaint is traced to TIMCO responsibility. Tr. 231-32. Following United's complaint, TIMCO traced the inspection sign-off to Daniel, Tr. 119, and he was written-up. Tr. 120. RX. 9; Tr. 263.

   The record shows that Mike Parker was a TIMCO mechanic, Tr. 30, working under the direction of Daniel, Tr. 32, who was then serving as a temporary supervisor. Sometime in October of 2001, Tr. 106-107, as Parker and Daniel inspected an aircraft's right main landing gear door which had been re-skinned, they noticed that it lacked a serviceable or 8130-3 tag. Tr. 34. Parker reported the lack of the 8130-3 tag to the day shift supervisor and thought the matter was resolved. A day or two later, however, Parker and Daniel allegedly were told they were going to be disciplined for not accepting the door; and both were called to a meeting with Morgan. Tr. 35; CX. 2.

   FAA form 8130 is an airworthiness release tag, Tr. 259, used, for example, to indicate the airworthiness of a component after maintenance or an overhaul. Tr. 259. The record shows, however, that there are alternatives to the 8130 tag, such as the non-routine card. Tr. 259. In the meeting with Daniel and Parker, a heated discussion apparently ensued during which Morgan explained that a serviceable tag was not needed if a non-routine was performed in-house under the service order of that aircraft. Tr. 37. While heated, the discussion was not unusual.    The record confirms that employees and supervisors at TIMCO often discuss, at times heatedly, the proper documentation and other issues during the course of aircraft maintenance. CX.2. Parker confirmed in his testimony that supervisors or inspectors occasionally disagreed about the way a repair should be handled, and it was not unusual for inspectors and others to disagree over type of documentation or certification that should be used in different circumstances. Tr. 116; Tr. 260. He further testified that, although he and Daniel were told they would be ‘written-up" because of the landing gear door incident, he was never written-up or disciplined in any way, and his job was not threatened. Tr. 40-41. Tr. 47. Daniel was not written-up, but he believes, in contrast, that his work environment further deteriorated after the landing gear door incident. Tr. 106.

   Sometime in late fall or early winter of 2001, McClellan prepared a draft memorandum, and consistent with his customary practice, he provided it to the supervisor inspector in Hanger IV for his review and comment. McClellan explained that before he issues a memo he often consults with the supervisors in the effected departments. Tr. 279. In this instance, however, someone had gained access to his draft memo during the night, copied it, and circulated it to the staff. Tr. 109. By the time McClellan arrived at work the next day, he found copies of the draft "all over the facility," and he initiated an inquiry to determine how it got loose without his approval. Tr. 280.

   Because Daniel was one of a very few individuals with a key to the third shift office, Tr. 108-109, he was questioned about the unauthorized release of McClellan's draft memo. McClellan testified that he asked everyone who had access to the office the same question. Tr. 280. While Daniel conceded it was not unreasonable to ask him about the memo because he had a key to the office, Tr. 115-116, he, nevertheless, felt accused of circulating it. The record shows, however, that McClellan never determined who leaked the draft, and no one was written up or disciplined over this incident.

   As previously mentioned, routine cards are prepared when an aircraft arrives at TIMCO. These cards outline the work needed and, in conjunction with the planning department, estimate the hours required to complete each job. Tr. 107-108; Tr. 112-113. If the work is not completed in the time allotted, it's called "running over." Tr. 113. On the third shift, employees, in the past, had been told "not to run cards over... to stay billable." Tr. 113. More recently, however, TIMCO changed its policy.

   The record shows that Daniel was assigned a card which had no time left, and, as a consequence, he charged his inspection time to an off aircraft parts inspection card. Tr. 112. As the economics of the airline industry tightened, however, firms like TIMCO were required to keep more accurate time records on maintenance which were used to develop competitive bid packages. Tr. 258. As a result, TIMCO made a push to ensure all employees were accurately charging their time, Tr. 259, and, in this instance, McClellan confronted Daniel and instructed him to charge his time to the correct card not an off aircraft parts card he was not actually working. Daniel acknowledged that he was not disciplined or written up about the incident, but he did sense that McClellan instructed him harshly to use the appropriate card. Tr. 114-115.

   Jeremiah Gaddy is an inspector at TIMCO. Tr. 244. From time to time, he had designated Daniel as his temporary replacement supervisor in Hanger IV. Tr. 245-246. TIMCO employees who assume the position of a supervisor over a temporary period of time receive temporary supervisor's pay. The increase lasts as long as the employee has supervisory responsibilities. Tr. 260. It could last a day, a week or more. Tr. 261. Daniel was a temporary supervisor, never a permanent supervisor. Tr. 261. The record shows that Daniel, in the latter part of 2001 or early 2002, was reassigned from Hanger IV to work on a Boeing 767. Tr. 43. The reassignment resulted in Daniel's lose of temporary supervisor pay. Tr. 106.

   In anticipation of the arrival of an Airborne Express 767, Gaddy had indicated to Daniel that he wanted to assign Daniel to that aircraft line. CX. 2. When the plane arrived, however, Daniel was not assigned to it, and he asked Gaddy why. Daniel testified that Gaddy advised him that he could not be a lead on that aircraft because Pete Morgan did not want him in charge of anything. Tr. 116-117. Daniel called Gaddy to testify at the hearing, Tr.245, but he did not specifically ask Gaddy to testify directly about his conversation with Morgan concerning Daniel's assignment. Tr. 245-247.

   Heather Neville, a Quality Control Inspector at TIMCO, was Daniel's supervisor on the third shift. Tr. 50-51. She testified that Gaddy told her Daniel would not be in charge of anything any more, but she never knew the reason. Tr. 52. Gaddy denied that he was aware that Daniel was having any problems with Morgan, Gaddy's supervisor, Tr. 246, and he denied knowledge of the circumstances leading to Daniel's discharge. Tr. 247.

   Morgan denied he told Gaddy that Daniel would never be in charge of anything. He explained that the Airborne 767 was in for a heavy C check and pylon modification, and he wanted an inspector named Clayton Moore assigned as the inspector on the job, not Daniel who Gaddy had selected. Tr. 232-33.

   12. The exact dates and the precise chronology of each of the foregoing events is not readily apparent on this record. Several were not precisely documented because the first time Daniel complained about any of these incidents was after his termination. Tr. 123; Tr. 21; Tr. 26-28.

   13. Daniel was fired for allegedly falling asleep on May 10, 2002, while inspecting the horizontal stabilizer center box of a Boeing 767. The aircraft's elevators, or pitch controls, are attached to the horizontal stabilizers. Tr. 91.

   14. James Childers is an Inspection Lead at TIMCO. CX. 5. He testified that on May 10, 2002, Daniel was assigned to work on the Boeing 767. Daniel pulled the cards he wanted to inspect and selected the tail section. Tr. 186-87. The rear of the aircraft was sticking out of the hanger so the auxiliary power unit could run, but the position of the tail section exposed it to the sun, and it was hot inside. Tr. 105; Tr. 201-202. Daniel inspected the vertical stabilizer internal section, Tr. 105, and, before he went back in to inspect the horizontal stabilizer box, he told Childers to check on him after awhile. Tr. 105-06.

   15. Childers confirmed that Daniel mentioned to him that if he was not out of the horizontal stabilizer center box by three o'clock someone should check on him. Childers advised him to be sure to take the break scheduled for one o'clock, Tr. 192, but Childers did not see Daniel during the break. Tr. 192.

   16. Inside the horizontal stabilizer box, there are three small access cavities. Tr. 203. RX 1; RX.2; RX. 3 (pictures of the Boeing 767 horizontal stabilizer box and first access hole.). Daniel was inspecting the wiring standoffs where the wires run through the clamps and examining the cables and cable pulleys. Tr. 127. He was inside the access hole up to his chest using a long mirror to check the items on the inspection card. Tr. 104-105. His body was partly through the first access hole and his arms were extended through the second access hole. Tr. 105; Tr. 123. He testified he was laying on his stomach, feet pointing toward the floor with one foot sticking out and the other against the stabilizer box to hold himself steady. Tr. 127-128; Tr. 131. He testified further that to inspect the horizontal stabilizer center box the inspector typically lies on his stomach and uses a mirror. Tr. 128. The inspection usually takes him an hour. Tr. 129.

   17. About two o'clock, a mechanic, Doug Legg, reported to Childers that he thought someone was asleep in the "cavity." Tr. 193. Charley Roberts, a temporary team leader on May 10, 2002, reported that Doug Legg advised him that he could not finish a check on card 213 because an inspector in the horizontal stabilizer box did not appear to be moving. Legg advised him the inspector appeared to be in the same position for 20 to 30 minutes. Roberts looked up into plane and saw a foot. He advised Childers that the inspector was not moving and might be asleep, passed out, or dead. RX.10.

   18. Childers climbed a ladder and poked his head and shoulders through the entrance hole at the bottom of the aircraft. He saw one leg hanging down and the other against a support brace. Tr. 193-94; Tr. 205-206. It appeared to him that Daniel was lying on his back and not moving. Tr. 199.

   19. Childers hollered three times and there was no movement. Tr. 194; Tr. 196. He descended the ladder and reported to his supervisor, Bob Ingold. Tr. 194; Tr. 198. At the time he reported his concern to Ingold, Childers was not aware of Daniel's protected activities. Tr. 201.

   20. Presley R. Ingold is a Quality Control Inspection Supervisor at TIMCO. Tr. 80. CX 4. RX 6. Sometime after the lunch break on May 10, 2002, Tr. 82. Tr. 91-92, he was advised by Mike Childers, Tr. 211, and others that Daniel, who was inspecting the tail of the Boeing 767, was lying motionless in the access hole. Tr. 90-91. Ingold and Childers moved a ladder, and Ingold climbed it into the entrance hole at the bottom of the aircraft's tail section, ascending up to his hips. Tr. 197. He observed Daniel for about 30 seconds and detected no movement. Tr. 82-83; Tr. 88. He noticed that Daniel was lying on his back, Tr. 211, legs crossed, feet pointed up, Tr. 93, and he thought Daniel was either sleeping, severely ill, or worse. Tr. 88. While Ingold noticed that Daniel's legs were crossed, Childers previously noticed that one leg was "dangling." Tr. 216.

   21. Ingold called to Daniel three times with no response. Tr. 83. He saw Daniel's baseball cap lying in the bilge area, picked it up, and struck Daniel across the ankle. According to Ingold, Daniel then moved, and Ingold asked him if he was o.k. Tr. 83. Ingold testified that Daniel responded that he was alright, and Ingold told him; "Well wake up and get out of there and get some fresh air." Tr. 83. Childers heard Ingold yell to Daniel three times, Tr. 194, and finally call out; "How about waking up and signing off those cards." Tr. 194.

   22. When Ingold climbed out of the plane, he told Childers to check on Daniel after a few minutes and he did. Childers testified he went up the ladder and yelled at Daniel who responded "I'm o.k., I'm o.k." Tr. 198. Roberts heard both Childers and Ingold call out to Daniel. RX. 10. A little while later, Childers sent another inspector to tell Daniel to get out of the plane and get some fresh air. Tr. 198. Childers was certain Daniel had been sleeping. Tr. 199; RX 4, Tr. 200.

   23. Directly contradicting Ingold, Daniel testified that while his hat was on stabilizer center box, Tr. 130, he did not feel Ingold swat him on the foot or ankle with it or hear him call. Tr. 129. He insists he never spoke to Ingold only Inspector Kuhlman or Woody. Tr. 129-130. He testified that the access hole space is so confined that the only thing he could move was his arms and head, Tr. 124, and he could not hear anything but other workers using a rivet gun. Tr. 105. The only person he claims he heard call was David Kuhlman asking if he was o.k. and he responded he was and was almost finished the inspection. Tr. 105.

   24. Other witnesses also addressed the environment in the access hole. Parker testified that he was unable to inspect the center box of the Boeing 767 because he lacked sufficient flexibility. He was familiar with the two by two access hole to the left hand side of the jack screw, Tr. 95, but acknowledged that if someone called an inspector working in the access hole, he did not know if it could be heard. Tr. 95. Heather Neville, one of Daniel's supervisors on the third shift, also had not inspected the horizontal stabilizer center section of the Boeing 767, but she knew it was very tight. Tr. 98. She doubted she could not get into that section of the aircraft, Tr. 99, but testified that while outside sounds would be muffled inside the access hole, Tr. 101, she had not had an opportunity to experience the sound of someone near the access hole shouting for an inspector. Tr. 101-02.

   25. Neville further testified that she never had a problem with Daniel's work, but noticed over time that "things got a little tougher" for him. Tr. 50-52.

   26. Childers had inspected the horizontal stabilizer box of a Boeing 767. Tr. 191; Tr. 203. He testified that while performing the inspection "your body is constantly moving," Tr. 191, looking at the connections for the lines and wires, the fasteners, rivets, and stringers on the top. Tr. 204. The inspector, he claims, lies on his back inspecting the top of the box and the sides, using a flashlight and a mirror because when someone is in the access hole it blocks the light. Tr. 191; Tr. 204.

   27. While Ingold has never inspected a horizontal stabilizer center box, he has been in one, and he thought it would not be difficult to hear someone calling. Tr. 84.

   28. When Ingold observed Daniel, he could not see Daniel's eyes and did not hear him snoring, but Daniel was not moving and did not respond when Ingold shouted "about as loud as he could yell." Tr. 89. Based upon his observations, Ingold informed his supervisor, Pete Morgan, Tr. 212, that he had caught someone sleeping on the job. Tr. 218. RX 5. Tr. 219. At first, Ingold did not identify the inspector but during the course of the conversation he advised Morgan that it was Daniel. Tr. 235. Ingold was reluctant to reprimand Daniel because he thought a reprimand would involve peer review and Ingold was disillusioned by a previous experience with the peer review process. Tr. 212. Morgan instructed him, however, that if he thought Daniel was asleep, it was his duty to write him up, Tr. 213, and Ingold initiated the paperwork the next day. Tr. 213.

   29. At the time he signed the reprimand, Ingold was unaware of Daniel's protected activities. Tr. 216. Morgan, while noting that he could not recall if he was ever informed that Daniel had contacted the FAA, Tr. 226, also testified that Daniel's FAA contact played no role in his decision to fire him. Tr. 242-43.

   30. After receiving Ingold's report, Morgan then went to a hanger to look at a plane, see how the ladder was positioned when Childers and Ingold went up to call out to Daniel, and to get a mental image of Daniel's physical position in the horizontal stabilizer box. Based upon his inquiry, Morgan concluded that Daniel was sleeping. RX. 7.

   31. The TIMCO manual specifies that sleeping on the job is a class three terminable offense. CX. 3; Tr. 88-89; Tr. 73; Tr. 125; Tr. 200; Tr. 225; Tr. 286.

   32. Morgan alerted the Human Resources Department and took the proposed termination action, Rx 5, to his supervisor, Bob McClellan. Tr. 219-220. McClellan reviewed the proposed termination action and the attached statements and agreed with the action recommended. Tr. 277-78. He testified that he was indifferent about the informant who contacted the FAA about the oxygen bottle documentation. Tr. 276.

   33. Phil Hagler is a Supervisor in the Human Resources Department at TIMCO. Tr. 250. Morgan approached him on Monday, May 13, 2002, regarding Daniel's termination. Tr. 250. After hearing from Morgan, Hagler wanted to meet with Daniel. Tr. 220; Tr. 251. At Hagler's suggestion, Morgan, Hagler, and Daniel met in a conference in room in Hanger IV. Tr. 223; Tr. 236. Daniel explained orally what had occurred, denied he was sleeping, and prepared a statement . RX 8. After reviewing the circumstances, Hagler concluded that to perform the inspection in the tight quarters Daniel described, his feet would be moving even if slightly as he twisted and turned in the access hole. Tr. 252.

   34. Since sleeping on the job was a group three major terminal offense, Hagler took the proposed reprimand to Don Mitacek for approval. Tr. 237-38; Tr. 253. Mitacek, TIMCO's General Manager in Greensboro, is involved in all reprimands which rise to a level of probation or above. Tr. 253. At the time, Hagler was not aware of Daniel's protected activity. Tr. 253.

   35. Among her other duties, Susan Lovett, Manager of Human Resources and Payroll at TIMCO, reviews reprimands and terminations. Tr. 285. She explained that TIMCO's manual describes a process of progressive discipline. Repetitive infractions of a minor nature are handled progressively. Tr. 290. Group two infractions are more severe and written rather than verbal reprimands are issued. Group three violations are handled with written probation or termination. Tr. 290.

   36. The record shows that since December, 1999, TIMCO has terminated four employees for sleeping on the job. Tr. 286. Each termination was imposed after the first incident for each employee. Tr. 287-88. All instances of sleeping on the job since December of 1999 were handled by termination. Tr. 291. None resulted in a less drastic personnel action. Tr. 291-92.

   37. The record further shows that the manual provision addressing sleeping on the job changed in 1999. Prior to the change, an employee caught sleeping on the job could request peer review. Tr. 293. In the summer prior to the change, however, it appears that a number of third-shift workers were caught sleeping on the job, prompting a change in the policy dealing with that offense. Tr. 292. Peer review was no longer available and termination was the prescribed action for the infraction. These changes were made long before Daniel's termination. Tr. 294. Daniel does not contend he was denied peer review for contacting the FAA. Tr. 126.

   38. On May 13, 2002, Morgan met with Daniel in the presence of Ingold and Hagler to inform Daniel of his termination which Hagler and Mitacek approved the next day. Tr. 226. RX 5. Tr. 213.

   39. Following his termination, Daniel contacted Latimer to discuss allegations of harassment during his tenure at TIMCO. Tr. 257. Latimer thus investigated Daniel's allegations post-termination. Tr. 27. He inquired into each instance of harassment alleged by Daniel and prepared a report. CX. 2; Tr. 258. Latimer testified that Daniel's communication to the FAA played no role in his termination. Tr. 265.

   40. At the hearing, Daniel adduced the testimony of Mike Sizemore to demonstrate, inter alia, TIMCO's harsh treatment of its inspectors. Sizemore, an Aircraft A&P mechanic, once worked as an inspector under Daniel. Tr. 61. In one instance, Sizemore was involved in an incident involving a rob tag cannibalization form, used when a part is taken from one aircraft to fix another. Tr. 62. Management told him rob paperwork was not needed. Tr. 63. Thereafter, in a instance unrelated to the rob tag, he inspected a United Airlines plane. Seven or eight weeks after his inspection, a "panel left the aircraft," Tr. 65, and Sizemore was reprimanded.

   41. It appears that United complained to TIMCO when a dorsal fin Sizemore had inspected fell off a Boeing 767 while it was landing at JFK Airport. Tr. 68. The dorsal fin is an exterior panel, approximately three feet by a foot and a half, Tr. 78, which connects the upper fuselage to the vertical stabilizer. Tr. 77. The vertical stabilizer is commonly referred to as the tail of the aircraft. Tr. 77.

   42. The inspection of the dorsal fin was traced to Sizemore. As previously found, See, Finding 11, supra, TIMCO inspectors are held responsible for complaints of this nature. Tr. 68-70. Accordingly, Sizemore was reprimanded, counseled, Tr. 68, and required to give a speech to co-workers. Tr. 65.

   43. In another instance, Sizemore was called to work after a bachelor party. He advised management that he was intoxicated, but was instructed to report for work anyway. While the record does not show exactly what job Sizemore was called upon to perform on this occasion, it does show that the job he was given did not involve the use of any of his certifications or work on any aircraft. Tr. 66-67.

   44. Sizemore, like Heather Neville, See, Finding 25, supra, testified that he never witnessed anyone harassing Daniel, although he did think that management "may have been a little rough" on him at times. Tr. 76.

   The statutory provisions set forth in AIR21establish a whistleblower protection program which prohibits air carriers, and contractors or subcontractors of an air carrier, from discriminating "against an employee with respect to compensation, terms, conditions, or privileges of employment" for engaging in protected activity. A protected activity occurs when the employee:

"(1) provided, caused to be provided, or is about to provide (with any knowledge of the employer) or cause to be provided to the employer or Federal Government information relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under [AIR21] or any other law of the United States;
(2) has filed, caused to be filed, or is about to file (with any knowledge of the employer) or cause to be filed a proceeding relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under [AIR21] or any other law of the United States..." 49 U.S.C. §§ 42121; see also, 29 C.F.R. §§ 1979.102.

   Daniel alleges that, as a consequence of his protected activity, TIMCO management treated him more harshly than other inspectors; removed him as a temporary supervisor; gave him undesirable assignments; issued him a reprimand; harassed and subjected him to a hostile work environment; and finally fired him. TIMCO does not dispute that Daniel engaged in protected activities, but it otherwise denies his charges of discrimination. Having carefully considered the evidence viewed in its entirety, and for the reasons set forth in detail below, I find and conclude that the complaint filed in this matter should be dismissed.

   It is clear that TIMCO, a contractor engaged by major commercial air carriers, and Daniel, a former TIMCO inspector who provided safety-related information to the FAA, are both covered by the provisions of AIR 21; and the merits of Daniel's complaint have been fully litigated. Consequently, while Parshley v. America West Airlines 2002 AIR 10 (ALJ Aug. 5, 2002), may indicate the contrary, it would not, under applicable decisions of the Administrative Review Board, be particularly useful at this point to analyze whether Complainant has established a prima facie case. As the Supreme Court observed in United States Postal Serv. v. Aikens, 460 U.S. 709 (1983):

Because this case was fully tried on the merits, it is surprising to find the parties and the [court] still addressing the question whether [the plaintiff] made out a prima facie case. . . .
Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The [court] has before it all the evidence it needs to decide the [ultimate question of discrimination]. 460 U.S. at 713-14, 715.

   The ARB and the Secretary of Labor have consistently invoked the Aiken principle in a variety of whistleblower adjudications. See, e.g., Adornetto v. Perry Nuclear Power Plant, 1997-ERA-16 (ARB Mar. 31, 1999); Jones v. Consolidated Personnel Corp., ALJ Case No. 96-STA-1, ARB Case No. 97-009, Jan. 13, 1997; Etchason v. Carry Cos., Case No. 92-STA-12, Sec. Dec., Mar. 20, 1995, citing Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 15, 1995, slip op. at 11, aff'd, Carroll v. U.S. Dept. of Labor, 78 F.3d 352 (8th Cir. 1996). Accordingly, it should suffice here simply to observe that TIMCO management was aware of Daniel's Work Reject Notice for the oxygen bottle documentation and had heard "hanger clatter" that he was the informant who spurred the FAA's onsite visit to look into the matter. TIMCO's protestations to the contrary notwithstanding, circumstantial evidence of management awareness is thus sufficiently compelling to support the conclusion that TIMCO knew who blew the whistle.

   Daniel, moreover, was subjected to adverse personnel actions in temporal proximity to his protected activity sufficiently close to give rise to an inference of causation. Ertel v. Giroux Brothers Transportation, Inc., 88 STA 24 (Sec. Feb. 15, 1989), at 15; Stone & Webster Engineering, Inc. v. Herman, 115 F.3d 1568 (11th Cir. 1997); Mandreger v. Detroit Edison Co., 88 ERA 17 (Sec. March 30, 1994); Crosier v. Portland General Electric Co. 91 ERA 2 (Sec. 1994); Samodov v. General Physics Corp., 89 ERA 20 (Sec. 1993). Accordingly, "the critical inquiry is whether retaliatory animus motivated any of the adverse actions" challenged by Daniel. Frechin v. Yellow Freight, 96 STA 34 (ARB Jan.13, 1998); See also, Mitchell v. Link Trucking, Inc., 2001 STA 39 (ALJ, May 9, 2001).

   Before turning to the instances which constitute the pattern of harassment alleged by Daniel, there are two aspect to this case which merit some discussion. The first addresses an interpretation of the term "tangible consequences" in light of Complainant's allegation that he was subjected to retaliatory written reprimands; the second focuses on his contention that the Employer treated its safety inspectors too harshly.

   There is a growing tangent in the administrative case law which suggests that certain types of discriminatory treatment of protected employees are not actionable under AIR 21 or other whistleblower statutes administered by the U.S. Department of Labor. Recently, for example, in Robichaux v. American Airlines, 2002 AIR 27 (ALJ, May 2, 2003), it was observed that, absent a showing of "tangible consequences" such as a demotion, neither discriminatory oral criticism nor negative written evaluations can be considered actionable adverse actions. Robichaux's reasoning was predicated upon decisions of the Administrative Review Board in Shelton v. Oak Ridge National Laboratories, 1995-CAA-19 (ARB March 30, 2001)(an oral reminder only), and Ilgenfritz, Jr. v. U.S. Coast Guard Academy, 1999-WPC-3 (ARB August 28, 2001). See also, Jenkins v. EPA, 1988-SWD- 2, (ARB Feb. 28, 2003). Ilgenfritz, in turn, relied upon Davis v. Town of Lake Park, 245 F.3d 1232, 1242 (11th Cir. 2001) in which the Eleventh Circuit observed in a Title VII race discrimination case that: "Employer criticism, like employer praise, is an ordinary and appropriate feature of the workplace. Expanding the scope of Title VII to permit discrimination lawsuits predicated only on unwelcome day-to-day critiques and assertedly unjustified negative evaluations would threaten the flow of communication between employees and supervisors and limit an employer's ability to maintain and improve job performance." To the extent Davis is spawning administrative progeny in the whistleblower arena, a brief pause to reflect upon the court's decision, and Title VII in general, would not seem imprudent.

   Initially, in discussing the adverse performance evaluations challenged in Davis, the appellate tribunal had before it the undisturbed findings of the trial court: "that Davis had failed to prove that he was treated differently than any similarly-situated white employees, and thus failed on that ground as well to establish a prima facie case under Title VII." In this respect, Title VII and whistleblower protections are alike. When the adverse action is non-discriminatory, neither a Title VII worker nor a whistleblower can prevail.

   The Davis court proceeded, however, to consider the two adverse "evaluations" Davis received and noted that one was merely a counseling memorandum, and the other, apparently a bit more critical, was only temporary and had been removed from Davis's personnel file. Presumably, a valid distinction, which I will discuss in some detail below, can be made between oral or non-permanent reprimands and written, permanent adverse personnel actions. Still, as Robichaux and Illgenfritz indicate, the court's decision in Davis embraces the notion that discriminatory performance appraisals and reprimands, whether temporary or permanent, do not give rise to the type of "tangible consequences" sufficient to sustain a Title VII action.

   To be sure, Title VII cases, in general, have traditionally provided guidance in adjudicating the elements of discrimination in whistleblower cases.¹ Yet, there are distinctions between these two category of cases which suggest that the type of "tangible consequences" plaintiffs must demonstrate in Title VII cases may, in some instances, be different from the "tangible consequences" in a whistleblower case. When it comes to assessing "tangible consequences," the question is whether the analytical underpinnings of Title VII are equally cogent in a whistleblower context.

   Thus, the importance of providing coverage against retaliatory personnel actions in a whistleblower context is, as shall be demonstrated, neither impractical nor a whimsical tilt toward the theoretical. Most personnel managers appreciate, and the U.S. Department of Labor, itself, understands,² that negative ratings and reprimands of record, without more, can be quite persuasive in changing behavior. Indeed, such personnel actions are designed to prompt behavioral modifications, and, for better or worse, they are a potent threat to the job or career of the worker who fails to heed them. Nor are discriminatory responses of this type imbedded in a worker's personnel file the simple equivalent of a Shelton-type "oral reminder." In a bit more sinister way, retaliatory personnel actions of a permanent nature not only penalize past whistleblowing; by design, they more forcefully seek to alter future behavior by serving notice on the targeted employee that, despite what Congress may have promised, whistleblowing will not go unpunished; if not immediately, then eventually.

   And beyond that, if it is permissible, as some cases suggest, to subvert a worker's personnel record with discriminatory reprisals, an employer intent upon suppressing whistleblowing would have little reason to hide the fact that it is authorized to retaliate in this way if it so chooses; and workers would be foolish to ignore the risk. Given the porous nature of the workplace environment, once the word gets around, as it surely would, that tarnishing permanent personnel records is an acceptable response to allegedly protected activity, the disincentives to an employee thinking about blowing the whistle would seem considerable. In a very practical sense, then, to conclude, in the context of a whistleblower proceeding, that a personnel tool inherently intended to alter employee behavior can be used without regulatory consequence in a retaliatory manner against the precise behavior Congress had hoped to encourage, is to place a "tangible" weapon in the hands of those who consider protected activity an unwelcome intrusion in the workplace.

   Still, some might suggest that there is no cause for concern because time enough exists to protect the whistleblower once he or she is actually demoted, re-assigned, or fired. Yet, time is not the ally of a whistleblower. As the temporal nexus between the protected activity and the adverse action widens, the risks to the whistleblower increase; and his case, unlike the Title VII worker's, becomes more difficult to prove.³ Consequently, if employees can not cleanse their records of retaliatory adverse material before the axe is allowed to fall, few workers will fail to appreciate that, in time, their personnel records may be unsalvageable. Common sense would then suggest that fewer still would likely see any advantage in volunteering as a whistleblower. Under these circumstances, interpreting as inconsequential the misuse of a personnel instrument designed to alter employee behavior risks protecting, and, even worse, validating, not the flow of information the statute was intended to shield, but precisely the type of unwanted response which Congress had hoped to suppress.

   While Title VII case law, as discussed above, generally guides some whistleblower decision-making on this issue, there is contrary authority which suggests that "tangible consequences" may exist without direct economic impact. Thus, the ARB in Gutierrez v. University of California, 1998 ERA 19 (ARB Nov. 13, 2002), held that a negative comment in a performance evaluation demonstrably attributable to protected activity was "an unfavorable personnel action within the ERA."⁴ See also, Stoller v. Marsh, 682 F.2d 971 (D.C. Cir. 1982) (reliance on discriminatory performance evaluation placed in employee's personnel folder before fair opportunity for review violated Title VII). This is not, of course, to suggest that every negative oral criticism, or written, but temporary, reprimand triggers an AIR 21 or other whistleblower cause of action; and certainly non-discriminatory, non-retaliatory personnel actions never do. It does seem clear, however, that if discriminatory patterns of harassment or retaliatory, adverse permanent performance evaluations causally related to whistleblowing are permitted to slip under the radar screen, only the very daring or those employees with hefty masochistic tendencies are likely to come forward; and the policies which underlie the Act may be seriously compromised.

   Thus, 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.

   It does not stray beyond the proper realm of administrative adjudication to postulate, a priori, that if reprisals, especially of a permanent nature or constituting a pattern of harassment, are allowed against an activity valued in the public interest, society is likely to get less of the valued activity. Conversely, one protects the behavior one wishes to promote; and this seems to be what Congress intended in dealing with the type of activity covered by the whistleblower statutes. Thus, in fostering the substantial public interest reflected in such enactments as the Air 21(Airline Industry); Energy Reorganization Act of 1974, as amended, Section 211, 42 U.S.C. §5851(Nuclear Industry), Clean Air Act, 42 U.S.C. §7622; the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9610; the Solid Waste Disposal Act, 42 U.S.C. §6971; the Safe Drinking Water Act, 42 U.S.C. 300j-9; the Federal Water Pollution Control Act, 33 U.S.C. §1367; Surface Transportation Assistance Act, 49 U.S.C. §31105 (Trucking Industry); the Toxic Substances Control Act, 15 U.S.C. §2622, and Sarbanes-Oxley Act of 2002, 18 U.S.C §1514A (Accounting Industry), the legislature sought to encourage workers voluntarily to communicate their environmental, safety, and certain other concerns while condemning discriminatory actions which target the activities Congress deemed beneficial in the public interest.⁵ Whistleblowing is protected; retaliation is discouraged, not the reverse.

   Accordingly, it would seem that proof establishing an employer's retaliatory issuance of an adverse "rating of record" or permanent written reprimand, thereby indelibly scaring a worker's personnel record in reprisal for engaging in protected activity should be sufficient to invoke the prophylactic remedies envisioned by these enactments. Under these circumstances, and in the absence of direct precedent to the contrary under AIR 21, Complainant's allegations that he was the target of either a discriminatory reprimand of record or a pattern of harassment before he was fired should be considered on the merits. ⁶

   Evidence adduced by Daniel at the hearing reveals a strict but evenhanded approach to this situation. Thus, Daniel, after engaging in protected activity, was written-up or reprimanded for an incident which occurred several months after an inspection; and his co-worker, Sizemore, in similar fashion, was written-up for an occurring several months after his inspection. Daniel's reprimand consisted of counseling to remind him "of the need to give a good look at aircraft systems/components... when giving o.k. to close," and seems consistent with, though not quite as stern as, the reprimand meted out to Sizemore considering the nature of the incidents. Consequently, while a written reprimand or adverse appraisal filed in retaliation may be actionable, Complainant, himself, demonstrated TIMCO's non-discriminatory application of a policy designed to hold employees accountable for their inspections, and, as such, demonstrated the propriety of the written reprimand he received. AIR 21 contemplates no remedy under such circumstances.⁷

¹ See e.g., Dartey v. Zack Company of Chicago, 82-ERA-2, (April 25, 1983); Sherrod v. AAA Tire and Wheel, 85-CAA-3, (November 23, 1987);DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984), applying Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and Mt. Healthy City School District Board of Education v.Doyle, 429 U.S. 274 (1977); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

² Thus, the Department distinguishes between oral admonishments and written performance appraisals in its own published personnel practices, and it recognizes that admonitions "reduced to writing" and "ratings of record" are sufficiently "tangible" adverse personnel actions to constitute a grievable personnel action. See, DOL Personnel Regulations, Chapter 430, Appendix C, Para. 9; see also, labor agreement with Local 12 of the AFGE, AFL/CIO, Article 45, Section 4.

³ Unlike the Title VII worker whose protected status does not change, the whistleblower's case gets tougher to prove over time as the inference of a causal link attenuates. See generally, LaTorre v. Coriell Institute For Medical Research, 97 ERA 46 (ALJ, Dec. 3, 1997), aff'd. and remanded on other grounds, 98 ARB 40 ( February 26, 1999); Mandreger v. The Detroit Edison Co., 88 ERA 17 (Sec., March 30, 1994) (Six month interval between whistleblower activity and adverse job transfer); White v. The Osage Tribal Council, 95 SDW 1 (ARB Aug. 8, 1997) (Proximity in time ... is solid evidence of causation). Thus, a vindictive but patient employer gains time advantages in a whistleblower case. By piling up a few adverse evaluations seemly far removed from the protected activity, the hypothetical "tangible consequence," such as a demotion can be made to seem far less pretextual. In contrast, a temporal nexus always exists for a Title VII worker.

⁴ The ARB in Gutierrez also found that a relatively small pay raise was a retaliatory action under the ERA.

⁵ In protecting federal whistleblowers, for example, a reprisal is deemed adverse and actionable. See, 5 U.S. C. § 2302(b).

⁶ It is, of course, possible that a protected employee was, for example, the target of discriminatory personnel actions at some point, but eventually was terminated for good and proper cause or received fair, non-discriminatory ratings but was ultimately terminated in retaliation for protected activity. Under circumstances in which a case has been fully litigated, however, the issue, as the Supreme Court has held, is whether discrimination motivated the adverse action, and when : "The [court] has before it all the evidence it needs to decide the [ultimate question of discrimination]," it should do so. Aiken, at 460 U.S. at 715.

⁷ In Gutierrez, supra, the inclusion of a customer compliant in a performance evaluation gave rise to cause of action due to its discriminatory nature. Here no discrimination was established. Thus, unlike Title VII cases, Gutierrez indicates that it is not the immediate economic "tangibility" or "intangibility" of the written evaluation or reprimand which matters, but the discriminatory or non-discriminatory, retaliatory or non-retaliatory nature of the action which, under the whistleblower statutes, is controlling.