Administrative Review Board Decisions

The following case summaries were created by the Administrative Review Board staff.

Mazenko v. Pegasus Aircraft Management, LLC, ARB No. 2021-0032, ALJ No. 2019-AIR-00001 (ARB June 18, 2024) (Order Reversing in Part and Remanding in Part)

ORDER OF REVERSAL IN PART AND REMAND IN PART; SUBSTANTIAL EVIDENCE STANDARD; SUBJECTIVE BELIEF PROTECTED ACTIVITY; OBJECTIVE BELIEF PROTECTED ACTIVITY; CONTRIBUTING FACTOR

In Mazenko v. Pegasus Aircraft Management, LLC, ARB No. 2021-0032, ALJ No. 2019-AIR-00001 (ARB June 18, 2024), the ARB reversed the ALJ's D. & O. in part and remanded in part for further proceedings consistent with the opinion.

Complainant filed a complaint with OSHA on May 9, 2018, alleging that Respondents terminated his employment in retaliation for his protected activity. Before the ALJ, Complainant claimed that he engaged in protected activity by reporting missing LOAs, including D195 (MEL) and A153 (ADS-B). Complainant claimed that he reasonably believed that because operating the aircraft without these LOAs violated foreign country regulations or ICAO standards, he was reporting a violation of an FAA rule, 14 C.F.R. § 91.703(a). The FAA rule requires that each person operating an aircraft outside of the U.S. shall: "[w]hen over the high seas, comply with Annex 2 (Rules of the Air) to the convention on International Civil Aviation" and "[w]hen within a foreign country, comply with the regulations relating to the flight and maneuver of aircraft there."

On October 26, 2020, the ALJ issued a D. & O. The ALJ found that Complainant did not engage in protected activity because Complainant did not hold a good faith subjective and objectively reasonable belief that he had reported violations of FAA regulations when he provided information about the missing LOAs. Regardless of Complainant's beliefs, the ALJ further held the reports did not in any way contribute to the termination of his employment.

On appeal, the ARB reversed in part and remanded in part for further proceedings. 

PROTECTED ACTIVITY; SUBJECTIVE BELIEF; ARB REVERSES ALJ FINDING THAT COMPLAINANT DID NOT HAVE A SUBJECTIVE BELIEF REGARDING MISSING LOAS

A complainant engages in protected activity under AIR21 if they provide information relating to a violation or alleged violation of a regulation, order, or standard of the FAA or federal law relating to air carrier safety. Although a complainant "need not prove an actual FAA violation,""To prove subjective belief, a complainant must prove that [they] held the belief in good faith." Complainant only needed to demonstrate he held a good faith belief foreign authorities or ICAO required the LOAs.

LOA D195 (MEL)

The ALJ ruled that Complainant's inquiries regarding the LOAs "were consistent with seeking to maximize the abilities of the aircraft by continuing to monitor which LOAs were in effect," rather than evidencing his subjective belief "that the failure to have them [was] a violation of any FAA rules, regulations, or standards."

However, the ARB determined the record belied any suggestion Complainant did not in good faith believe the lack of LOA D195 (MEL) violated foreign, and therefore FAA, regulations. Indeed, Complainant sent repeated communications to Respondent explicitly stating foreign authorities and ICAO required LOA D195 (MEL) to operate. Complainant also shared research with Respondent's COO regarding requirements for LOA D195 (MEL). On December 1, 2017, Complainant e-mailed the COO, advising him that "LOA D095 (MMEL for MEL) is not valid in Europe. See my link below." The Aviation Article link explained the need for LOA D195 (MEL) to operate in Europe.

Although finding Complainant credible, the ALJ ignored the explicit communications and evidence. On their face, however, they conveyed the good faith belief that lack of LOA D195 "relates" to the violation of an FAA regulation. Accordingly, the ARB held no reasonable factfinder could conclude Complainant did not genuinely believe the lack of LOA D195 (MEL) violated FAA regulations and reversed the ALJ's determination.  

LOA A153 (ADS-B)

The ALJ similarly held that Complainant did not have a "good faith subjective belief concerning the use of certain communication or navigation instruments or procedures." The ALJ, however, did not provide any specific analysis of whether Complainant had a good faith subjective belief regarding LOA A153 (ADS-B). And, in finding Complainant did not hold such a belief, the ALJ once again ignored Complainant's extensive communications and explicit hearing testimony directly stating the aircraft was operating in violation of foreign standards, thereby violating 29 C.F.R. § 91.703(a).

First, the record shows that Complainant sent several contemporaneous communications to his employer regarding the missing LOA A153 (ADS-B), including an email stating: "The ADS and CPDLC LOAs are fairly significant since we are required to have both in our daily operating environment. It's just a matter of time before we are questioned on this." A plain reading of Complainant's e-mails thus established he held a good faith subjective belief that certain airspaces required LOA A153 (ADS-B) and Complainant subjectively believed flying without the LOA constituted an FAA violation.

Second, Complainant testified several times in the hearing about his subjective beliefs regarding requirements for LOA A153 (ADS-B). For example, Complainant responded to the ALJ's questioning about ADS-B by testifying that ADS-B is "required in -- in certain airways, in Hong Kong, Singapore, all of Europe." Complainant also testified that, "[t]he Canadian regulations require [ADS-B] just like in Europe, [where] European regulations require it." In addition, Complainant testified under cross examination that, when he was employed by Respondent, he had researched the requirements for LOA A153 (ADS-B) in Europe and Canada.

Notably, the ALJ found Complainant to be a credible witness at the top of his profession, and the Board affirmed the ALJ's credibility findings. Since the ALJ did not identify (and the ARB did not find) any evidence countering the direct statements regarding Complainant's subjective beliefs, the ARB reversed the ALJ's finding concerning LOA A153 (ADS-B).

PROTECTED ACTIVITY; OBJECTIVELY REASONABLE BELIEF; SUBSTANTIAL EVIDENCE STANDARD; ARB REMANDS ALJ FINDING THAT COMPLAINANT DID NOT HAVE AN OBJECTIVELY REASONABLE BELIEF REGARDING MISSING LOAS

The ALJ found that Complainant did not have an objectively reasonable belief that he was reporting violations when he provided information to Respondent that the aircraft required LOA D195 (MEL) and LOA A153 (ADS-B). To determine whether a complainant's belief was objectively reasonable, the Board assesses their belief taking into account "the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee." Under the substantial evidence standard, the Board reviews whether the ALJ conducted "an appropriate analysis of the evidence to support his findings."

A finding of fact lacks contextual strength if the fact finder ignores, or fails to resolve, a conflict created by countervailing evidence. Moreover, the ALJ "must provide enough information to ensure . . . he properly considered the relevant evidence[.]" Here, the ARB found that the ALJ's objectively reasonable findings suffered from unaddressed evidence and unresolved conflicts.

LOA D195 (MEL)

The ALJ found that Complainant's belief that he reported an FAA violation related to LOA D195 (MEL) was not objectively reasonable for several reasons: (1) Respondent's COO communicated to Complainant that LOA D095 (MMEL) was sufficient and the FAA POI said so; (2) there would or could only be a violation if the aircraft were flown with inoperative equipment and needed to use LOA D095 (MMEL); and (3) Complainant presented no evidence that a foreign nation could take action against him or the aircraft for operating the aircraft without a MEL.

The ARB disagreed with the findings, instead finding that the ALJ did not adequately analyze the evidentiary record, failed to adequately support his findings, and at times relied on sources outside the record, including his own opinion. Moreover, the ALJ failed to resolve certain conflicts created by countervailing evidence or explain why he credited certain evidence and discredited other evidence. The Board also identified evidence in the evidentiary record that the ALJ did not sufficiently evaluate.

LOA A153 (ADS-B)

The ALJ found it objectively unreasonable for Complainant to believe that he reported a violation when he communicated with Respondent's COO about the missing LOA A153 (ADS-B). However, the ARB found the ALJ both misapplied the standard and failed to address relevant evidence.

First, instead of focusing on the reasonableness of Complainant's belief, the ALJ based his determination on whether Complainant had the ability to prevent a violation or whether the employer required Complainant to violate FAA rules. But the proper question is not whether Complainant had the ability to prevent a violation or whether the employer required Complainant to violate FAA rules. Rather, the proper question is whether Complainant had an objectively reasonable belief that he had reported a violation. Complainant raised concerns about flying in certain airspaces without LOA A153 (ADS-B), telling Respondent's COO "we are required to have [it] in our daily operating environment." Complainant also credibly testified that, based on his research, he believed Canada and Europe required LOA A153 (ADS-B). The G650 aircraft indisputably flew into Europe and Canada.

On remand, the Board ordered the ALJ to determine whether Complainant's beliefs were objectively reasonable, not whether Complainant had the ability to prevent a violation or whether the employer required Complainant to violate FAA rules.

Second, the ALJ did not adequately analyze Complainant's communications to Respondent's COO and the other pilots' testimony in finding that Complainant did not reasonably believe he was reporting a violation relating to the missing LOA A153 (ADS-B). The ARB directed the ALJ to address Complainant's research and opinion at the time he reported the need for LOAs, and his testimony at the hearing, particularly since the ALJ found Complainant to be a credible witness "at the apex of the corporate aviation ladder."

Accordingly, the ARB remanded to the ALJ to reconsider his finding that Complainant's beliefs were not objectively reasonable regarding LOA A153 (ADS-B), considering the evidence identified by the ARB and any other relevant facts under the proper standard.

CONTRIBUTING FACTOR; ARB REMANDS ALJ'S FINDING OF NO CONTRIBUTING FACTOR

Complainant has the burden to prove, by a preponderance of the evidence, that his protected activity was a contributing factor to the employer's adverse action. "A 'contributing factor' includes 'any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision.'" Employees may meet their evidentiary burden to establish contributing factor with circumstantial evidence, such as temporal proximity.

The ALJ found Complainant did not meet his burden on this element. He acknowledged that Respondent "handled the termination of Complainant poorly," and noted how Respondent's decisionmakers relied on another employee's reporting of Complainant's alleged misconduct without conducting their own investigation or allowing Complainant "to present his version of the facts." Nonetheless, the ALJ found since "being a poor manager is not what this Tribunal must decide," this "is not the type of evidence that assists Complainant in meeting his burden." The ALJ thus concluded: "In sum, the Tribunal is not convinced by a preponderance of evidence that Complainant's reporting of LOAs had anything to do with his termination. If there is a contributing factor here, it was management's failure to investigate the nature of the alleged events that led to Complainant's termination."

The Board instructed the ALJ on remand to address the following issues.

First, the ALJ did not weigh the evidence of temporal proximity. On appeal, Complainant reiterated he sent six messages to Respondent's COO in January and February 2018 regarding the missing LOAs. Complainant argued that the close temporal proximity between his communications and the termination of his employment could establish a link between his protected conduct and his termination that the ALJ did not address. The Board agreed and remanded to the ALJ to evaluate Complainant's argument.

Second, the Board agreed with Complainant that the ALJ did not explain why he credited the decisionmaker's explanation of the termination, despite finding his testimony "less credible and giv[ing] it little weight." On remand, the Board instructed the ALJ to address the decisionmaker's credibility and to explain how the ALJ concluded "management's failure to investigate the nature of the alleged events" does not weigh in favor of Complainant's position he was terminated for engaging in protected activity.      

Finally, the ALJ did not evaluate the evidence concerning Respondent's termination of another employee's employment on the same day as Complainant's employment termination. Respondent argued before the ALJ that it terminated Complainant's and the other employee's employment because of their conduct, and the other employee had "never said a word about LOAs and couldn't have cared less about them." Similarly, on appeal, Respondent argued that "[t]here were two employees terminated on the same day for the same reason. They were not a good fit for the company. . . . [I]f the LOA issue w[as] the cause of [Complainant's] termination, why was the other employee terminated?" Complainant, in turn, supplied a possible pretextual reason: "The termination of [the other employee] . . .  is easily reconciled. If [the decisionmaker] wished to use Lopez'[s] complaints as a pretext to terminate [Complainant], he also needed to terminate [the other employee] since Lopez'[s] complaints extended to both individuals." The Board remanded this issue for the ALJ to address in the first instance as part of his contributory factor analysis.

The ARB noted that an ALJ does not need to address every aspect of a complainant's claim at length or in detail. But the ALJ must explain the relevant evidence in a manner that allows the ARB to understand "what the ALJ did and why he did it." The ARB remanded to the ALJ to reconsider his contributing factor analysis, taking into account the identified facts and any other facts the ALJ identifies as relevant.