Administrative Review Board Decisions

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

Jones v. Exclusive Jets, LLC, ARB No. 2023-0035, ALJ No. 2022-AIR-00003 (ARB Dec. 31, 2024) (Decision and Order)

PROTECTED ACTIVITY; CONTRIBUTING FACTOR; AFFIRMATIVE DEFENSE; TOLLING OF BACKPAY; INTEREST ON BACKPAY; EMOTIONAL DISTRESS DAMAGES

In Jones v. Exclusive Jets, LLC, ARB No. 2023-0035, ALJ No. 2022-AIR-00003 (ARB Dec. 31, 2024), the ARB affirmed the ALJ's D. & O. in part and reversed in part. In Jones, Complainant filed a complaint with OSHA, alleging that Respondent terminated him in response to his protected activity, which included emailing a list of safety-related complaints to management, meeting with management to discuss safety-related concerns, and making entries in the maintenance logbooks of the planes he flew, some of which resulted in the planes being grounded. OSHA dismissed the complaint and Complainant timely objected and requested a hearing before the Office of Administrative Law Judges (OALJ). In his D. & O., the ALJ found for Complainant and ordered Respondent to: (i) reimburse Complainant $196,005.27 in backpay, plus interest; (ii) pay $15,000 in damages for emotional harm; (iii) expunge any mention of Complainant's termination from his personal record; and (iv) reimburse Complainant his litigation costs and attorney fees and costs. Respondent timely appealed the ALJ's decision to the ARB.

On appeal, Respondent argued that: (i) Complainant's logbook entries and actions during his final rotation were not protected activity; (ii) Complainant's protected activity was not a contributing factor to his termination; (iii) it would have fired Complainant in the absence of Complainant's protected activity; (iv) its liability for backpay should be tolled as of the date Complainant received a job offer from a subsequent employer; (v) the method the ALJ used to calculate interest on Complainant's backpay award should be revised; and (vi) Complainant is not entitled to compensatory damages for emotional distress. The ARB rejected each of these arguments, other than Respondent's interest argument.

PROTECTED ACTIVITY; LOGBOOK ENTRIES CAN CONSTITUTE PROTECTED ACTIVITY

ARB precedent makes clear that a logbook entry in and of itself does not necessarily constitute protected activity. Nonetheless, the ARB concluded that Complainant's course of action, which included identifying maintenance issues, logging them, and speaking to Respondent's management and maintenance teams about how those issues related to a broader issue of other pilots failing to properly log and address mechanical issues, plainly constituted protected activity. The ARB found that Complainant effectively reported violations of 14 C.F.R. § 135.65(b) (which requires pilots to report mechanical irregularities that come to their attention) by other pilots who previously flew the plane he was flying. The ARB noted that Complainant's logbook entries did not occur in a vacuum. Rather, Complainant had previously raised the issue—including in his email to management—of pilots failing to properly record mechanical defects and irregularities. Accordingly, Complainant's logbook entries and other actions taken during his final flight rotation were protected activity under AIR21.

CONTRIBUTING FACTOR; BOTH DIRECT AND CIRCUMSTANTIAL EVIDENCE SHOWED THAT COMPLAINANT'S PROTECTED ACTIVITY CONTRIBUTED TO RESPONDENT'S DECISION TO TERMINATE

The ALJ relied on both direct evidence—the testimony of Respondent's director of operations—and circumstantial evidence—temporal proximity—to conclude that Complainant's protected activity contributed to Respondent's decision to terminate his employment. The ARB affirmed the ALJ's conclusion noting that, with regard to temporal proximity, Respondent did not, and given Complainant's removal from the rotation immediately following his protected activity, could not, point to any intervening event that independently could have caused the adverse action and severed the causal connection between the protected activity and the adverse action.

The ARB rejected Respondent's argument that the ALJ misunderstood Respondent's Director of Operations' testimony and failed to appreciate the clear distinction drawn by the Director of Operations in his testimony between waiting to log irregularities until it was convenient to do so (which the Director of Operations alleged Complainant did) and timely logging irregularities at the end of a flight. Lastly, the ARB rejected Respondent's argument that it is always the perception of the decisionmaker that is relevant. The ARB clarified that although an employer may be prohibited from retaliating against an employee due to activity the employer perceives to be protected activity, such as when it perceives an employee is going to report a violation, it does not logically follow that an employer is then free to retaliate against an employee anytime it perceives protected activity to be unprotected.

AFFIRMATIVE DEFENSE; RESPONDENT DID NOT PROVE AN AFFIRMATIVE DEFENSE

Even if a complainant has made a prima facie showing of retaliation in violation of AIR21, a respondent may avoid liability if it demonstrates by clear and convincing evidence that it would have taken the same adverse action even in the absence of any protected activity. Under ARB precedent, it is not enough for an employer to show that it could have taken the same adverse action; it must show that it would have done so even in the absence of protected activity. Similarly, an employer cannot carry its burden by showing that it might have taken the same adverse action against an employee.

Respondent argued that it would have terminated Complainant due to his long history of performance and interpersonal issues, which allegedly had "come to a head" at the time he was terminated. The ALJ found, and the ARB affirmed, that the evidence adduced at the hearing did not establish that Complainant's performance was progressively worsening and somehow reached the tipping point at the same time he engaged in protected activity. The ARB noted that the record does not contain any warnings, re-trainings, or progressive discipline that would be expected with an issue that supposedly grew worse over time. Additionally, Respondent promoted Complainant to captain five months after his sole negative evaluation, and Respondent's policies require that an employee demonstrate effective crew resource management (CRM) in order to be upgraded to captain. Similarly, although Complainant was briefly required to spend time as a first officer (FO) rather than a captain because some first officers were unwilling to fly with him, this change lasted less than a month and Respondent's Director of Operations testified that some improvement in Complainant's CRM had been noted by the time he returned to flying as a captain. Although Respondent claimed that it terminated Complainant because it ran out of FOs to pair Complainant with, Respondent never attempted to switch Complainant to the other flight crew rotation (which contained 10 or 11 additional FOs that Complainant could have been paired with, including at least 6 or 7 who had never flown with Complainant) and Respondent's management was not able to explain why it never tried such an approach.

TOLLING OF BACKPAY; GROSS OR EGREGIOUS MISCONDUCT STANDARD APPLIES TO TOLLING BACKPAY

In previous decisions, the ARB has addressed the issue of when an employer's backpay liability will be tolled due to an employee's failure to maintain subsequent employment. In one recent decision, the ARB held that "[w]hile some courts have applied tolling in cases involving less serious conduct . . . the ARB has consistently held that a tolling offset is applicable only in cases involving misconduct which is gross or egregious, or constitutes a wilful violation of company rules."

The ARB reaffirmed this standard and affirmed the ALJ's conclusion that Complainant's failure to submit a required onboarding form to a new employer did not constitute gross or egregious misconduct or a willful violation of company rules. The ARB noted that Complainant successfully completed several other onboarding tasks.

INTEREST ON BACKPAY; DAILY COMPOUNDING ON BACKPAY INTEREST REQUIRED

Prevailing complainants are entitled to interest on an award of backpay. The ALJ ordered that Complainant receive pre- and post-judgment interest in an amount determined pursuant to the formula the ARB set out in Doyle v. Hydro Nuclear Services. Pursuant to this formula, interest compounds quarterly and the proper interest rate is the rate charged on the underpayment of federal income taxes: the federal short-term rate, determined under 26 U.S.C. § 6621(b)(3), plus three percentage points.

The ARB reaffirmed that backpay awards are subject to interest and that such interest should be compound, rather than simple. The ARB also held that daily, rather than quarterly, is the appropriate period of compounding when calculating interest on backpay awards. The ARB observed that multiple employee protection provisions enforced by OSHA require daily compounding on backpay awards. Through the rulemaking process, the Secretary of Labor has recognized that daily compounding of interest better achieves the make-whole purpose of a backpay award, has become the norm in private lending, and was found to be the most appropriate method of calculating interest on backpay by the National Labor Relations Board. For these reasons, daily compounding of interest on backpay awards is appropriate in cases arising under AIR21.

EMOTIONAL DISTRESS DAMAGES; ALJ'S AWARD OF DAMAGES FOR EMOTIONAL DISTRESS AFFIRMED

Under AIR21, a successful complainant is entitled to compensatory damages in addition to backpay. To recover compensatory damages for emotional harm, a complainant must show by a preponderance of the evidence that he experienced mental suffering or emotional anguish, and that the unfavorable personnel action caused the harm. Compensatory damages must be "proportionate to the harm inflicted," but there is no specific formula for determining the amount of compensatory damages a complainant is owed. Although Complainant did not provide testimony from a medical or psychiatric expert, such testimony is not required. The ARB will affirm compensatory damages awards in cases where no medical or psychiatric evidence was presented, provided that the complainant's evidence was unrefuted and, as determined by the ALJ, credible.

The ARB affirmed the ALJ's finding that Complainant's testimony of the emotional distress he experienced was credible and unrefuted. The ARB further found that $15,000 in compensatory damages for emotional distress and loss of reputation was in line with similar cases, including cases where the evidence presented at hearing did not include testimony from medical or psychiatric experts.

Selvarangan v. Tata Consultancy Services, ARB No. 2025-0022, ALJ No. 2024-CFP-00010 (ARB Dec. 20, 2024) (Notice of Denial of Petition for Review)

LACK OF JURISDICTION; BOARD CANNOT REVIEW FINAL ORDERS OF THE SECRETARY OF LABOR

In Selvarangan v. Tata Consultancy Services, ARB No. 2025-0022, ALJ No. 2024-CFP-00010 (ARB Dec. 20, 2024), the ARB issued a Notice of Denial of Petition for Review. On December 5, 2024, an ALJ issued an Order Granting Complainant's Motion to Withdraw Objections and Order Dismissing Case Without Prejudice pursuant to 29 C.F.R. § 1985.111(c). Complainant filed "Petition: Addressing Procedural Inconsistencies and Ethical Violations" (Petition) with the ARB. In the Petition, Complainant requested the ARB to review "significant procedural violations and ethical breaches" that occurred throughout the ALJ proceedings. Complainant subsequently filed a Supplemental Submission for Petition (Supplemental Submission) advising that he attempted to attach several motions and documents to the Petition but was unable to due to technical difficulties.

The ARB reviewed these filings and exercised its discretion to not accept the Petition or Supplemental Submission as an appeal. When the ALJ approved Complainant's request to withdraw objections, the Assistant Secretary's findings became the final order of the Secretary. Accordingly, the ARB did not accept the Petition or Supplemental Submission as an appeal and ordered that the matter be closed.

Mitchell v. Manning Trucking, Inc., ARB No. 2025-0010, ALJ No. 2024-STA-00020 (ARB Dec. 17, 2024) (Order Denying Petition for Interlocutory Review)

ORDER DENYING PETITION FOR INTERLOCUTORY REVIEW; COMPLAINANT FAILED TO RESPOND TO ORDER TO SHOW CAUSE; INSUFFICIENT GROUNDS FOR INTERLOCUTORY REVIEW OF ALJ’S RULING

In Mitchell v. Manning Trucking Inc., ARB No. 2025-0010, ALJ No. 2024-STA-00020 (ARB Dec. 17, 2024), the ARB denied the Complainant's Petition for Review because Complainant failed to (1) respond to the ARB's Order to Show Cause, and (2) meet the requirements for interlocutory review. 

On September 13, 2024, Complainant filed a Motion to Recuse (Motion) with the ALJ, requesting that the ALJ recuse themself from the proceedings. On October 28, 2024, the ALJ issued a Ruling on Complainant's Motion to Recuse ALJ (Ruling), denying Complainant's request for recusal.

On November 19, 2024, Complainant filed a Petition for Review of the ALJ's Ruling with the ARB. Because the ALJ had not yet issued a decision fully disposing of all claims in Complainant's complaint, the petition was for interlocutory review (i.e., review of a non-final decision).

On November 27, 2024, the ARB issued an Order to Show Cause, which ordered Complainant to show cause why the ARB should not dismiss the interlocutory appeal. The ARB also cautioned that a failure to timely respond may result in the dismissal of the appeal without further notice. Complainant did not file a response to the Order to Show Cause.

Complainant also failed to meet the requirements for interlocutory review of the ALJ's ruling. When a party seeks interlocutory review of an ALJ's non-final order, the ARB has elected to look to the interlocutory review procedures used by federal courts, including requesting the trial court certify issues involving a controlling question of law for immediate appeal in accordance with 28 U.S.C. § 1292(b). It did not appear that Complainant requested or received ALJ certification under 28 U.S.C. § 1292(b) in this case.

If a party has failed to obtain ALJ certification, the ARB may still consider reviewing an interlocutory order that meets the "collateral order" exception. To fall within the "collateral order" exception, the order appealed must: (1) conclusively determine the disputed question; (2) resolve an important issue completely separate from the merits of the action; and (3) be effectively unreviewable on appeal from a final judgment.

The ARB denied the appeal for its failure to establish the third element because the issue Complainant raised may be effectively reviewed on appeal from a final judgment. Accordingly, Complainant's interlocutory appeal did not meet the "collateral order" exception.

Bauche v. Masimo Corp., ARB No. 2025-0002, ALJ No. 2023-SOX-00024 (ARB Dec. 13, 2024) (Order of Dismissal)

ORDER OF DISMISSAL; APPEAL DISMISSED UPON COMPLAINANT’S NOTICE OF INTENT TO FILE DE NOVO IN FEDERAL COURT

In Bauche v. Masimo Corp., ARB No. 2025-0002, ALJ No. 2023-SOX-00024 (ARB Dec. 13, 2024), the ARB dismissed Complainant's appeal upon receiving notice of Complainant's intent to file his SOX claim de novo in federal court pursuant to 29 C.F.R. § 1980.114.

On October 5, 2024, Complainant filed a Petition for Review with the ARB seeking review of an ALJ's decision dismissing his claim. On October 10, 2024, the ARB accepted Complainant's appeal and ordered him to file an Opening Brief on or before November 7, 2024. On November 6, 2024, just one day before his Opening Brief was due, Complainant requested a 28-day extension of time to file his Opening Brief. The ARB denied Complainant's request for a 28-day extension, but granted Complainant an 18-day extension, to November 25, 2024, to file his Opening Brief. The ARB also cautioned Complainant that "the failure to timely file will result in the dismissal of this action."

Despite the warning, Complainant did not file an Opening Brief by November 25, 2024. Instead, on November 23, 2024, Complainant filed a "Notice of Intent to Remove to Federal District Court." Citing 18 U.S.C. § 1514A(b)(1)(B) and 29 C.F.R. § 1980.114, Complainant stated that he "hereby notifies the [ARB] and all parties of his intent to file an action de novo in the United States District Court concerning his whistleblower retaliation complaint."

In a preliminary order issued on December 6, 2024, the ARB noted that SOX permits a complainant to file a de novo complaint in federal district court if the Secretary of Labor has not issued a final decision on the complainant's SOX claims within 180 days of the filing of the administrative complaint with the Department's Occupational Safety and Health Administration. To invoke this right, a complainant must file the de novo complaint in the appropriate federal district court, and then file a file-stamped copy of the complaint with the ARB within seven days. Although Complainant expressed that he intended to file a complaint in federal court, Complainant did not submit a copy of a file-stamped complaint, or any other indication that Complainant had yet filed a complaint in any federal district court. Consequently, the case remained pending before the ARB, and Complainant was required to comply with the ARB's orders, including the order to file an Opening Brief by November 25, 2024. Complainant failed to do so, and his appeal was therefore subject to immediate dismissal.

However, in recognition of Complainant's pro se status, his expressed desire to exercise his right to proceed with a de novo action in federal district court, and the potential consequences of dismissing the action before Complainant actually filed a de novo federal complaint (including, potentially, Complainant being barred from seeking de novo review), the ARB did not immediately dismiss Complainant's appeal. Instead, the ARB gave notice that it intended to dismiss the appeal within seven days of the issuance of the preliminary order.

As of December 13, 2024, Complainant had still not filed a file-stamped copy of a federal court complaint with the ARB or otherwise indicated that he had yet filed a complaint in any federal district court. Consequently, in accordance with the December 6, 2024 preliminary order, the ARB issued an Order of Dismissal on December 13, 2024 dismissing Complainant's appeal.

Lewis v. American Express, ARB No. 2024-0058, ALJ Nos. 2023-SOX-00010, -00011 (ARB Dec. 6, 2024) (Order of Dismissal)

ORDER OF DISMISSAL; APPEAL DISMISSED BECAUSE COMPLAINANT FILED DE NOVO COMPLAINT IN FEDERAL COURT

In Lewis v. American Express, ARB No. 2024-0058, ALJ Nos. 2023-SOX-00010, -00011 (ARB Dec. 6, 2024), the ARB dismissed Complainant's appeal because Complainant filed a de novo complaint in federal court.

On August 12, 2024, Complainant filed a Petition for Review with the ARB seeking review of an ALJ's D. & O. On August 26, 2024, the ARB accepted Complainant's appeal and ordered her to file an Opening Brief on or before September 23, 2024. After the parties requested two extensions, the ARB extended Complainant's deadline to file an Opening Brief to November 4, 2024. Complainant did not file an Opening Brief. Instead, on November 4, 2024, Complainant filed a "Notice of Intent to File in U.S. District Court." Citing 29 C.F.R. § 1980.114, Complainant stated that she "provides notice to the [ARB] of her intent to bring an action for de novo review in the appropriate district court of the United States for equitable and monetary relief and a trial by jury." 

In a preliminary order issued on November 12, 2024, the ARB noted that SOX permits a complainant to file a de novo complaint in federal district court if the Secretary of Labor has not issued a final decision on the complainant's SOX claims within 180 days of the filing of the administrative complaint with the Department's Occupational Safety and Health Administration. To invoke this right, a complainant must file the de novo complaint in the appropriate federal district court, and then file a file-stamped copy of the complaint with the ARB within seven days. Although Complainant expressed that she intended to file a complaint in federal court, Complainant did not submit a copy of a file-stamped complaint, or any other indication that Complainant had yet filed a complaint in any federal district court. Consequently, the case remained pending before the ARB, and Complainant was required to comply with the ARB's orders, including the order to file an Opening Brief. Therefore, the ARB ordered Complainant to either file a file-stamped copy of a district court complaint pursuant to 29 C.F.R. § 1980.114 or to file an opening brief by November 26, 2024.

On November 26 and 27, 2024, Complainant filed with the ARB copies of a SOX complaint filed on November 26, 2024, in the United States District Court for the District of Arizona. Accordingly, the ARB dismissed the appeal.

DeBuse v. Corr Flight S., ARB No. 2023-0036, ALJ No. 2020-AIR-00015 (ARB Dec. 6, 2024) (Decision and Order)

PROTECTED ACTIVITY; SUBJECTIVELY HELD AND OBJECTIVELY REASONABLE BELIEF; PROTECTED ACTIVITY IS NOT RENDERED UNPROTECTED SIMPLY BECAUSE THE EMPLOYER ADDRESSED THE COMPLAINED OF CONDITION OR SITUATION

In DeBuse v. Corr Flight S., ARB No. 2023-0036, ALJ No. 2020-AIR-00015 (ARB Dec. 6, 2024), the ARB affirmed the ALJ's Decision and Order on Remand. In its first decision, the ARB vacated an ALJ's award based on the Complainant's reporting of a pilot's in-flight cockpit departure and remanded for the ALJ to consider whether Complainant's subsequent refusal to train with the same pilot on future passenger flights constituted protected activity. On remand, the ALJ held that AIR21 also protected Complainant's refusal to train with the pilot and reinstated his award.   

In this case, Complainant, while serving exclusively as an observer without any official in-flight responsibilities, witnessed a pilot, the only one qualified to fly the plane, leave the cockpit at flight level. In addition to the pilot's in-flight cockpit departure, the pilot did not wear or advise Complainant to wear an oxygen mask, despite being aware that for every minute at the altitude at which they were flying at least one qualified crew member was required to wear an oxygen mask.

Complainant reported the pilot's in-flight cockpit departure to his supervisor advising that he was capable, but not qualified, to fly the plane while the pilot was absent. Complainant subsequently refused to train with the pilot. Respondent nevertheless scheduled Complainant to train with this pilot. Complainant participated in a conference call with Respondent's management during which he reinitiated he refused to train with this specific pilot as it was a "safety" issue. Following this phone conference, Respondent sent Complainant a letter advising he would be placed on unpaid leave based on his refusal to fly with the pilot, but it would schedule Complainant to train with a third-party training company. Ultimately, Complainant did not provide Respondent with a signed copy of the training agreement or indicate whether he was going to sign the training agreement, and Respondent terminated his employment.

On remand, the ALJ found that Complainant witnessed the pilot likely violate Federal Aviation Administration (FAA) regulations, and Complainant subjectively held an objectively reasonable belief that to continue training with the pilot would violate other FAA regulations, including the prohibition of reckless operation of an aircraft. Thus, the ALJ found that Complainant's refusal to train with the pilot was protected activity.

On appeal to the ARB, Respondent did not dispute that it suspended Complainant precisely because of his refusal to fly with the pilot because Complainant's suspension letter explicitly listed his refusal as the one and only factor in Respondent's decision. Thus, Respondent appealed only the ALJ's finding that Complainant's refusal was protected activity.

In affirming the ALJ's order, the ARB found that substantial evidence supported the ALJ's finding that Complainant's refusal was protected activity.

First, the ARB found that Complainant sufficiently provided information relating to a violation of an FAA regulation despite Respondent's argument that Complainant's refusal did not sufficiently relate to an imminent or likely future safety violation. The ARB explained that it is well-established precedent that information only has to be related to any violation or alleged safety violation to be protected, and that an employee need not wait for an FAA violation to occur in order to report the safety concern and have whistleblower protection.

Second, the ARB found that substantial evidence supported the ALJ's finding Complainant subjectively held an objectively reasonable belief that training with the pilot would violate FAA regulations prohibiting the reckless operation of an aircraft. The ARB explained that the ALJ rationally determined Complainant held his belief in good faith based on Complainant's first-hand observations of the pilot's actions that were likely FAA violations, Complainant's explanation to Respondent's management as to why he found the pilot unsafe and why he refused to train with him, and Complainant's hearing testimony explaining why he refused to train with the pilot. The ARB explained that it was reasonable for the ALJ to determine a similarly situated pilot with comparable experience, training, and observations would have harbored the same beliefs regarding the pilot.

Lastly, the ARB rejected Respondent's argument that even if Complainant's refusal constituted protected activity, the refusal lost its protected status once Respondent addressed his concerns. The ARB explained that protected activity is not rendered unprotected simply because the employer addresses the explained of condition or situation. The ARB found that the plain language of AIR21 protects complainants without regard to an employer's corrective measures, and that all the act requires for protected activity is that a person provide "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," citing 49 U.S.C. § 42121(a)(1).