Estabrook v. Federal Express Corporation (agency decision, August 8, 2019)

Plain-English summary

FedEx pilot Mark Estabrook refused to fly through thunderstorms, filed an OSHA complaint, and later raised concerns about terrorists using public package-tracking data. The Board affirmed that the refusal and OSHA filing were protected and that FedEx's temporary groundings and medical-evaluation directive were adverse actions. It also upheld the finding that the tracking-data concern was not protected because publishing that information was an industry practice the FAA had not prohibited, leaving no reasonable belief of a legal violation. Substantial evidence showed the later groundings and evaluation resulted from Estabrook's August email and behavior, not his earlier protected refusal or complaint. The Board affirmed the denial of relief.

Decision snapshot

• Cited authorities: 49 U.S.C. § 42121; 29 C.F.R. §§ 1979.102, 1979.109(a), and 1979.110
• Outcome: Findings of protected activity and adverse action affirmed, but retaliation claim denied for lack of causation.
• Key point: A safety concern is not protected under AIR21 unless it reflects a subjectively held and objectively reasonable belief in a violation of air-safety law.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:



  MARK ESTABROOK,                                   ARB CASE NO.   2017-0047

                  COMPLAINANT,                      ALJ CASE NO.   2014-AIR-00022

         v.                                         DATE: August 8, 2019

  FEDERAL EXPRESS CORPORATION,

                  RESPONDENT.



  Appearances:

  For the Complainant:
        Lee Seham, Esq.; Seham, Seham, Meltz & Petersen, LLP; White Plains, New
        York

  For the Respondent:
        Daniel Riederer, Esq., and Phillip Tadlock, Esq., Federal Express
        Corporation; Memphis, Tennessee

  Before: William T. Barto, Chief Administrative Appeals Judge; James A. Haynes
  and Daniel T. Gresh, Administrative Appeals Judges.



                          FINAL DECISION AND ORDER





         PER CURIAM. This case arises under the employee whistleblower protection
  provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st
  Century (AIR 21), 49 U.S.C. § 42121 (2000); 29 C.F.R. Part 1979 (2014).
  Complainant Mark Estabrook filed a complaint alleging that Respondent Federal
  Express Corporation (FedEx) retaliated against him in violation of AIR 21’s
  whistleblower protection provisions for raising air transportation safety concerns. A
  Department of Labor Administrative Law Judge (ALJ) concluded on May 16, 2017,
  that FedEx did not violate the Act. We affirm.

                                        BACKGROUND

        Mark Estabrook is a pilot at FedEx. At the time in question, Captain Rob
  Fisher, the Assistant Chief Pilot, supervised Estabrook. Captain William McDonald,
  the Managing Director of Flight Operations, was Fisher’s supervisor. Todd Ondra
  was FedEx’s Managing Director of Aviation and Regulatory Security and Rob Tice
  was a FedEx Labor Relations Attorney.

      1. Flight from Laredo, Texas, to Memphis, Tennessee

       On April 10, 2013, Estabrook was scheduled to fly from Laredo, Texas, to
  Memphis, Tennessee. While still at a Laredo hotel, Estabrook learned of a line of
  thunderstorms between the two locations.

          From his hotel, Estabrook watched the weather and called the FedEx Global
  Operations Center (GOC) dispatcher, who recommended another route around the
  storm. According to Estabrook, after further discussion, the consensus reached
  between the two was that Estabrook was not going to fly according to the original
  flight time, but was to wait the storm out. Decision and Order Denying Relief (D. &
  O.) at 4. Estabrook understood this to mean that he was authorized to stay at the
  hotel. 1

        The Dispatch Duty Officer received a call from FedEx personnel at the
  Laredo airport that a FedEx flight crew assigned to a flight scheduled to depart
  soon was not there. The Dispatch Duty Officer called Estabrook, the pilot assigned


  1      See D. & O. at 20; Hearing Transcript (Tr.) at 350.




  to the flight, and discussed the weather and the flight. During the evening,
  Estabrook spoke with the Dispatch Duty Officer on the phone multiple times.
  Some of their conversations were recorded and some were not. According to
  Estabrook, he felt “pilot pushed” to fly through the storm to Memphis. The Dispatch
  Duty Officer denies pushing Estabrook to fly despite the weather, but he did tell
  Estabrook that he needed to be at the Laredo airport and not at his hotel. D. & O. at
  17.

          Later, Memphis Air Traffic Control placed a weather hold on Estabrook’s
  flight, and it could not depart Laredo until the hold was lifted later that evening. D.
  & O. at 5.

         On April 10, 2013, the Dispatch Duty Officer sent an e-mail to both Captain
  Fisher, Estabrook’s supervisor, and Chief Pilot McDonald, Fisher’s supervisor,
  detailing the events of the prior evening. The e-mail accused Estabrook of
  unilaterally delaying a flight without reaching an agreement with the GOC
  dispatcher. Respondent’s Exhibit (RX) 8.

         On April 23, 2013, Estabrook was asked to attend a”19D” investigation
  interview meeting concerning his late arrival at the Laredo airport for the
  scheduled April 10th flight. D. & O. at 6. At FedEx, a “19D” investigation hearing
  differs from a “19E” investigation hearing in that the latter is a disciplinary
  hearing, whereas the former merely is to obtain the subject of the hearing’s side of
  the story.

         After being notified of the meeting, Estabrook filed an AIR 21 complaint with
  the Occupational Safety and Health Administration (OSHA). On May 1, 2013,
  Estabrook attended the 19D meeting with Captain Fisher. After listening to the
  three audio recordings of Estabrook’s phone conversations with dispatch, Fisher
  believed that Estabrook may have had a good faith belief that he had permission to
  stay at his hotel. D. & O. at 20. Fisher informed Estabrook that FedEx was not
  going to take disciplinary action against him. Because no disciplinary action
  occurred, Estabrook withdrew his OSHA complaint. Complainant’s Exhibit (CX) 9.





      2. August 4 E-Mail and Estabrook’s NOQ Status

         After reading on the internet about terrorist activity involving cargo airlines,
  including FedEx, Estabrook became concerned with the misuse of FedEx’s tracking
  data that is available on internet websites. D. & O. at 7. Estabrook was concerned
  that terrorist organizations might use tracking data that couriers, including FedEx,
  provided on the internet to coordinate an explosive detonation on a FedEx airplane
  over a populated area. 2 Estabrook sent an e-mail to Captain McDonald asking him
  to have FedEx CEO Fred Smith call him about “something related to 9-11.”
  Estabrook’s e-mail stated:

         I need to talk to Fred. It has nothing to do with Flight Ops or you. It
         deals with something related to 9-11. I did my best to protect the
         company and reported as much as I could through [FedEx Corporate
         Security] when I was the Security Chairman at ALPA. Ask Fred to call
         me on my cell but realize I turn it off when I sleep. I am about to close
         my eyes and call it a day.

  D. & O. at 31-32; RX-13.

        On August 5, 2013, Estabrook received an e-mail from Captain McDonald
  putting him on Not Operationally Qualified (NOQ) status in order to facilitate
  scheduling a meeting regarding Estabrook’s concerns. D. & O. at 7, 23, 32. FedEx
  claims that the NOQ is used for several purposes, from scheduling to disciplinary
  reasons. When there are security or fitness-for-duty concerns present, the pilot will
  not have jumpseat privileges as a cautionary measure. D. & O. at 19, 21, 23.




  2       FedEx publishes general package tracking data on its internet website. But the
  tracking data does not list specific vehicles or planes. FedEx and other carriers send flight
  information to the Federal Aviation Administration which is not made public. D. & O. at 6-
  7, 19, 25.





     3. August 9 Meeting, 15D Examination, and Renewed NOQ Status

         Captain McDonald instructed Estabrook to attend a meeting on August 9,
  2013. Before the meeting, Captain Fisher, Captain McDonald, Ondra, the Managing
  Director of Aviation and Regulatory Security, and FedEx Labor Relations Attorney
  Tice met to discuss online postings on a pilot group internet forum from a person
  calling himself “Mayday Mark.” CX-21. “Mayday Mark’s July 28-August 5, 2013
  discussion thread covered a sleep survey, pilot fatigue, and airline management.
  Because some of the posts specifically mentioned FedEx management, Captain
  McDonald instructed Tice to ask Estabrook if he were “Mayday Mark.”

         Captain Fisher, Ondra, and Tice met with Estabrook on August 9, 2013, but
  Captain McDonald did not attend. During the meeting, Estabrook discussed his
  security concerns with tracking data being available to the public. Estabrook
  explained that he e-mailed Captain McDonald and wanted him to bring the matter
  up the chain of command to Fred Smith, FedEx’s CEO. Estabrook recommended
  that FedEx stop publishing tracking information. Previously in 2001 and 2002,
  Estabrook and others had contacted FedEx’s Vice President of Corporate Security
  concerning posting tracking information on the internet. But FedEx indicated that
  the Federal Aviation Administration (FAA) took no action on Estabrook’s concerns.

        During the August 9 meeting, Estabrook mentioned a rumor that Auburn
  Calloway, a former FedEx pilot, had converted to Islam and might be
  communicating with Al Qaeda. D. & O. at 26. Calloway had attempted to hijack a
  FedEx flight in 1994 and had been imprisoned since then. Estabrook had known
  Calloway personally because they were hired together and had been study partners.
  At the meeting, Estabrook suggested that FedEx work with the Justice Department
  to bug Calloway’s prison cell.

         During the meeting, Tice asked Estabrook whether he was “Mayday Mark”
  and Estabrook denied it. Moreover, Estabrook displayed his flight service
  information, which did not match that of “Mayday Mark” as indicated on the pilot’s
  forum. Ondra left the meeting early before the discussion on “Mayday Mark.” D. &
  O. at 23.





        At the close of the meeting, Captain Fisher took Estabrook off of his NOQ
  status. D. & O. at 19. But later that day, Captain Fisher placed Estabrook back on
  NOQ status at the recommendation of Ondra and McDonald. Ondra expressed
  concern with Estabrook’s behavior. Ondra believed it odd that Estabrook would
  contact his manager and ask to speak to the CEO of FedEx when there were several
  other means available to report suspicious activity. D. & O. at 25. Ondra was
  concerned about Estabrook’s mental health and recommended further evaluation of
  Estabrook. At the behest of Ondra, Tice passed Ondra’s recommendation to Fisher
  who, after consulting with McDonald, informed Estabrook on August 9 that an
  aeromedical advisor would conduct a “15D” evaluation of him. D. & O. at 19-20. On
  August 13, Estabrook’s attorney sent a demand letter to FedEx requesting that
  FedEx retract its directive that Estabrook receive a15D evaluation. On August 16,
  Fisher issued a formal letter to Estabrook directing him to go to the aeromedical
  advisor for the evaluation. D. & O. at 21, 32, 57.

         As part of his 15D evaluation, Estabrook was sent to three doctors. One
  doctor recommended counseling and another doctor found that Estabrook was fit for
  duty. The third doctor, a “tie breaker,” also concluded that Estabrook was fit to fly.
  With the positive evaluation, the aeromedical advisor informed Estabrook that he
  would be returned to flight duty. D. & O. at 13. Estabrook returned to flight duty
  status with no change in pay or job status. But Estabrook claims that he also had to
  then participate in some required training to recertify for full flight duty status
  because his NOQ status extended past the dates for his annual training
  requirements. D. & O. at 8.

        On October 3, 2013, Estabrook filed a second complaint with OSHA, which
  dismissed the complaint on July 15, 2014. Estabrook filed objections with the Office
  of Administrative Law Judges. The ALJ assigned to the case held a hearing and
  denied Estabrook’s complaint on May 16, 2017.

                       JURISDICTION AND STANDARD OF REVIEW

         The ARB has jurisdiction to review the ALJ’s AIR 21 decision under
  Secretary’s Order No. 01-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13,072 (Apr. 3,
  2019); 29 C.F.R. § 1979.110. The ARB reviews the ALJ’s factual determinations




  under the substantial evidence standard and conclusions of law de novo. 29 C.F.R. §
  1979.110(b); Berroa v. Spectrum Health Hosps., ARB No. 15-061, ALJ No. 2013-
  AIR-021, slip op. at 2 (ARB Mar. 9, 2017).

                                            DISCUSSION

         To prevail on his whistleblower complaint, Estabrook must prove by a
  preponderance of the evidence that (1) he engaged in activity protected under AIR
  21; (2) that an unfavorable personnel action was taken against him; and (3) that the
  protected activity was a contributing factor in the unfavorable personnel action
  taken against him. 49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R. § 1979.109(a). If the
  complainant proves that protected activity was a contributing factor in the
  unfavorable personnel action, the respondent may nevertheless avoid liability if it
  proves by “clear and convincing evidence” that it would have taken the same
  unfavorable personnel or adverse action in the absence of the protected activity. 49
  U.S.C. § 42121(b)(2)(B)(iv); 29 C.F.R. § 1979.109(a).

      1. Protected Activity

        Protected activity under AIR 21 has two elements: 3 (1) the information that
  the complainant provides must involve a purported violation of a regulation, order,

  3     Under AIR 21, a complainant engages in protected activity when he or she does one
  or more of the following actions:

                  (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 this
                  subtitle 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 this subtitle or any other law of the United
                  States;




  or standard of the FAA or federal law relating to air carrier safety, though the
  complainant need not prove an actual violation; and (2) the complainant's belief
  that a violation occurred must be subjectively held and objectively reasonable. “The
  information provided to the employer or federal government must be specific in
  relation to a given practice, condition, directive, or event that affects aircraft
  safety.” Hindsman v. Delta Air Lines, Inc., ARB No. 09-023, ALJ No. 2008-AIR-013,
  slip op. at 5 (ARB June 30, 2010).

      A. Estabrook’s Refusal to Fly on April 10 in Bad Weather is Protected Activity.

          Estabrook claims that the Flight Operations Manual provides that flying
  through thunderstorms constitutes a violation of an FAA standard. The FAA
  recommends maintaining a 20-mile buffer between a storm and the aircraft. In a
  preliminary partial summary judgment order, the ALJ found that Estabrook’s
  refusal to fly out of Laredo constituted protected activity and that finding was
  incorporated into his Decision and Order. D. & O. at 46, 51. As FedEx has not
  challenged the ALJ’s findings that Estabrook’s refusal to fly was protected activity,
  it is affirmed. 4

      B. Estabrook’s Complaint filed with OSHA in April 2013 is Protected Activity.

         The filing of complaints with OSHA claiming retaliation itself constitutes
  protected activity. 49 U.S.C. § 42121(a)(4) (protecting complainants who participate
  in a proceeding under the Act); 29 C.F.R. § 1979.102(b)(2).




                  (3) testified or is about to testify in such a proceeding; or

                  (4) assisted or participated or is about to assist or participate in
                  such a proceeding.

  49 U.S.C. § 42121(a); 29 C.F.R. § 1979.102.

  4       Leiva v. Union Pacific R.R. Co., Inc., ARB Nos. 14-016, -017; ALJ No. 2013-FRS-019,
  slip op. at 8 (ARB May 29, 2015).




     C. Estabrook’s discussion of his Air Carrier Security Concerns during an August
     9 Meeting Regarding Publishing Tracking Information is not Protected Activity.

         Estabrook also asserts that his expressed concerns about air carrier security
  also constitute protected activity although AIR 21’s whistleblower provisions do not
  specifically include that providing information about “security” as a protected
  activity. The ALJ analyzed AIR 21’s broader statutory and regulatory framework to
  conclude that providing information about “air carrier safety” includes expressing
  concerns about security. D. & O. at 48-49. To summarize, AIR 21 protects an
  employee who has a reasonable belief that a violation of an FAA standard or
  regulation or any other federal law related to air carrier safety has occurred.
  Significantly, AIR 21’s implementing regulations extend protection to an employee
  who reasonably believes a violation of air carrier statutes under subtitle VII of title
  49 has occurred. See 29 C.F.R. § 1979.102(b)(1) (“or any other provision of Federal
  law relating to air carrier safety under subtitle VII of title 49 of the United States
  Code or under any other law of the United States”). Among the various air carrier
  safety statutes under subtitle VII of Title 49 is a “security” subpart that covers
  screening, inspecting, and ensuring the security of cargo. Because the incorporated
  statutory air carrier safety laws are broad and “safety” encompasses some measure
  of “security,” the ALJ correctly concluded that “security” is covered as part of air
  carrier safety protected under the Act.

         Although security concerns can be covered under AIR 21, FedEx argues that
  the security concerns Estabrook expressed on August 9 are not protected under AIR
  21 because publishing tracking data is not a violation of FAA standards or any
  federal law related to air carrier safety or security. The ALJ agreed and found that
  the security concerns Estabrook expressed during the meeting were not protected
  activity. Specifically, Estabrook’s concerns were not related to a reasonable belief of
  a violation of federal laws related to air carrier safety or security. D. & O. at 49-50.
  Publishing tracking data is not a violation of regulations covering incendiary or
  explosive devices. Furthermore, Estabrook was merely reiterating his concern about
  publishing tracking data that he had raised in earlier complaint she had made to
  FedEx and the FAA in 2001 and 2002, but the FAA did not take any action on his
  complaint. D. & O. at 8. In fact, the parties do not dispute that the FAA requires





  that FedEx transmit tracking information to the FAA and the FAA releases some of
  that information to third parties.

         Estabrook challenges the ALJ’s determination that the concern he raised
  about publishing tracking information did not constitute protected activity,
  claiming the ALJ failed to consider regulatory provisions aimed at deterring or
  preventing incidents. 5 He asserts that a complainant need not point to a specific
  violation but need only relate to violations of FAA orders, regulations, and
  standards. Estabrook also argues that even if his concerns did not amount to a
  reasonable belief of a violation, FedEx’s and the FAA’s tracking policy was not
  effective given terrorists’ attempt in 2010 to use a FedEx aircraft to carry and
  detonate explosives.

           In response, FedEx notes that sharing tracking information is an industry-
  wide standard and contends that Estabrook’s concern is not an objectively or
  subjectively reasonable belief of a violation of relevant federal laws. Specifically,
  given Estabrook’s extensive experience and twenty years as a pilot with FedEx, it
  was not reasonable for him to conclude that he was engaging in activity protected
  under AIR 21. FedEx also points out that while expressing concern about the
  publication of tracking information, Estabrook never mentioned FedEx’s screening
  procedures or other procedures in place to detect explosive devices and thereby
  fulfill its regulatory obligations.

         We conclude that the ALJ’s findings of fact on these points are supported by
  substantial evidence and his conclusions of law are correct. As noted above, AIR 21
  protects complainants reporting a violation of a standard, rule, or regulation of the
  FAA or federal law related to air carrier safety. In Hindsman, ARB 09-023, the ARB
  held that a complainant did not engage in protected activity when the complainant
  knew that the FAA permitted the complained of activity:

         We agree with the ALJ's conclusion that while Hindsman was
         aggressively carrying out her duties as lead flight attendant to ensure


  5      49 C.F.R. § 1544.103(a)(1) (safety of persons from criminal violence and piracy,
  explosives, weapons); §§ 1544.205(a), (c)(1) (cargo control policy prevents incendiary
  devices, explosives).





         safety, once she discovered that the [personal oxygen container] POC
         was FAA-permitted, she could not have had a reasonable belief that
         flying with it on board violated air safety regulations. Therefore, she
         did not engage in protected activity on the October 1 flight. Because
         Hindsman failed to establish a required element of her complaint, the
         ALJ properly dismissed her complaint as a matter of law.

  Hindsman, ARB 09-023, slip op. at 5. Here, too, Estabrook could not have had a
  reasonable belief that publishing low-level flight or tracking information constituted
  a violation of federal air carrier safety or security laws. Publishing some level of
  tracking data is an industry-wide practice and not prohibited. D. & O. at 49-50. The
  FAA and other related entities had received complaints from Estabrook and others
  expressing concern about this practice in 2001 and 2002, but did not prohibit the
  activity. 6 Estabrook was only suggesting a policy change for FedEx to voluntarily or
  proactively withdraw publishing data to make its safety or security procedures
  more effective.

      2. Estabrook Suffered an Adverse Action

         The three adverse actions at issue in this case are the August 5 and August
  9, 2013, NOQs grounding Estabrook from flight duty and the directive that
  Estabrook undergo a 15D examination. Captain McDonald was the decision-maker
  for the August 5 NOQ. McDonald and Ondra were the decision-makers for the
  August 9 NOQ and 15D examination. The ALJ concluded that the NOQs and the
  directive to comply with the 15D examination were adverse actions. D. & O. at 51.
  As FedEx does not dispute the ALJ’s findings on appeal, they are affirmed. 7

  6       A complainant’s whistleblowing becomes unreasonable if raised again after an
  employer has already addressed the employee’s concern. Malmanger v. Air Evac EMS, Inc.,
  ARB No. 08-071, ALJ No. 2007-AIR-008 (ARB July 2, 2009) (“[O]nce an employee’s concerns
  are addressed and resolved, it is no longer reasonable for the employee to continue claiming
  a safety violation, and activities initially protected lose their character as protected
  activity”).


  7      Leiva, ARB Nos. 14-016, -017, slip op. at 8. When FedEx implemented the August 9
  NOQ, Estabrook was removed from his flight duties. D. & O. at 19. Estabrook claims that
  the currency of his flight duty status expired during his grounding. D. & O. at 8. So when
  he returned to flight duty following the 15D evaluation, Estabrook had to repeat some




     3. Estabrook’s Refusal to Fly and OSHA Complaint were not
        Contributing Factors to either his August 5th and 9th NOQs nor his
        15D Examination

         To prevail, a complainant must demonstrate “that [the protected activity]
  was a contributing factor in the unfavorable personnel action . . . .” 49 U.S.C.
  § 42121(b)(2)(B)(iii); 29 C.F.R. § 1979.109(a). “A contributing factor is ‘any factor,
  which alone or in combination with other factors, tends to affect in any way the
  outcome of the decision.’” Coates v. Grand Trunk W. R.R. Co., ARB No. 14-019, ALJ
  No. 2013-FRS-003, slip op. at 3 (ARB July 17, 2015). The complainant must then
  prove by a preponderance of the evidence that protected activity played some role
  and was a proximate cause in the adverse personnel action. Koziara v. BNSF Ry.
  Co., 840 F.3d 873, 877 (7th Cir. 2016) (distinguishing between causation and
  proximate causation).



  required training to recertify for full flight duty status. In his D. & O., the ALJ incorporated
  his conclusions that the NOQs and the 15D examination directive were adverse actions.
  Order Granting in Part and Denying in Part Complainant’s Motion for Summary Decision
  and Denying Respondent’s Motion for Summary Decision (ALJ May 9, 2016).
          While we do not disturb the ALJ’s findings and conclusions, we note that an
  employer’s directive to a pilot to undergo a psychological evaluation, in and of itself, is not
  an adverse action. Zavaleta v. Alaska Airlines, Inc., ARB No. 15-080, ALJ No. 2015-AIR-
  016, slip op. at 11 (ARB May 8, 2017) (an adverse action is “more than trivial” when it is
  “materially adverse” so as to “dissuad[e] a reasonable worker” from protected activity).
  FedEx’s 15D evaluation is part of an air carrier’s safety responsibility for employing a pilot.
  A requirement of periodic and “for cause” psychological assessments for aircraft pilots is
  beneficial to the airline community and to the public. For example, it is not an adverse
  action to require a pilot to undergo physicals and vision and hearing tests to ensure the
  pilot’s physical competency to operate an aircraft. Second, a psychological assessment may
  benefit a pilot who actually needs counseling. The 15D evaluation is a desirable tool to
  protect the public and the employer from the foreseeable danger of an accident. Estabrook
  knew of the 15D process and it was part of the collective bargaining agreement with FedEx.
  The parties do not dispute that Estabrook continued to be paid during his grounding.
         We do not suggest that a directive to undergo a 15D examination, in itself, could
  never be an adverse action. If selectively implemented or utilized in a retaliatory fashion,
  subjecting an employee to a 15D evaluation might be actionable as an adverse action.





          The ALJ found that FedEx management was not concerned with Estabrook’s
  refusal to fly. Rather, FedEx investigated Estabrook’s breach of protocol when he
  unilaterally stayed at the hotel and did not report to the airport an hour before his
  flight. D. & O. at 53.

         The ALJ’s findings are supported by substantial evidence. Estabrook’s late
  arrival for his flight was listed as the subject matter of the 19D hearing in Fisher’s
  April 23, 2013 letter notifying Estabrook of the hearing. Joint Exhibit (JX) 2. Fisher
  was concerned with Estabrook’s delayed arrival. The May 1, 2013 meeting focused
  entirely on the requirement that Estabrook report to duty on time. RX 9 (May 1 e-
  mail from Fisher to McDonald, and others, relaying the topic of the May 1 meeting).
  Although McDonald was involved with the April event in Laredo as a supervisor in
  the chain of command, the ALJ failed to find a causal link between McDonald’s role
  in the August adverse actions and any potential protected activity in April at
  Laredo as it was alternatively unsupported and subsequently overwhelmed by
  Estabrook’s unusual behavior in August. D. & O. at 53. Estabrook conceded that
  FedEx requires its pilots to arrive at the airport one hour before a flight’s
  departure. D. & O. at 12, 18.

        Estabrook claims that FedEx’s treatment of the “Mayday Mark” postings
  provide a “Laredo-related” connection from his protected activity in April to the
  events in August. The ALJ did not find a causal connection between the “Mayday
  Mark” postings and the adverse actions in August. We affirm the ALJ’s findings as
  supported by substantial evidence. Though the “Mayday Mark” postings were
  brought up in the meeting in August, FedEx accepted Estabrook’s denial when he
  stated and verified that he was not Mayday Mark.

        The ALJ also found that the August NOQs and 15D examination stemmed
  from the August 4, 2013 e-mail and August 9, 2013 meeting. We conclude that the
  ALJ’s findings are again supported by substantial evidence. The August 5, 2013
  NOQ followed directly after the August 4 e-mail. The August 9 NOQ and 15D
  examination directive followed immediately after the August 9 meeting and the
  strange behavior Estabrook exhibited. Riess v. Nucor Corp.-Vulcraft-Texas, Inc.,
  ARB No. 08-137, ALJ No. 2008-STA-011 (ARB Nov. 30, 2010) (identifying strong
  temporal proximity as support for causation).





          Estabrook further claims that FedEx did not, or could not, provide reasonable
  grounds for its 15D directive until the OSHA investigation. In the first instance,
  FedEx disputes that it was required to provide Estabrook’s counsel with a reason
  for its referral of Estabrook for the 15D evaluation. We conclude that even if a
  reasonable basis were required for the referral, FedEx’s omission does not
  undermine the substantial evidence supporting the ALJ’s findings that the NOQs
  and the 15D examination stemmed from the behavior Estabrook exhibited in
  August and not from his refusal to fly in Laredo or his April OSHA complaint.

          Finally, Estabrook claims that the ALJ erred in affirming FedEx’s assertion
  of attorney-client privilege concerning e-mails connected with Tice’s testimony as to
  who recommended that Estabrook be removed from jumpseat privileges. But
  Estabrook fails to convince us that the ALJ abused his discretion. United States v.
  Mejia, 655 F.3d 126, 131 (2d Cir. 2011) (findings of attorney-client privilege are
  reviewed for an abuse of discretion). The cases Estabrook cites to stand for the
  proposition that a party who uses a privileged document waives privilege to the
  extent it is used and cannot deny the opposing party access to the document to
  evaluate how it was used. Hernandez v. Tanninen, 604 F.3d 1095, 1100 (9th Cir.
  2010) (fairness principle requires that voluntary partial disclosure of privileged
  information waives privilege with respect to the disclosure); United States v. Nobles,
  422 U.S. 225, 239-40 (1975) (defense’s use of investigator’s testimony on the
  contents and credibility if the testimony waives privilege with respect to the
  investigator’s report relevant to such testimony). FedEx did not voluntarily waive
  its claim of privilege. The ALJ overruled FedEx’s assertion of privilege on two
  separate occasions during Tice’s testimony. Tr. at 457-74.





                                    CONCLUSION

         We AFFIRM the ALJ’s findings that Estabrook engaged in protected activity
  when he refused to fly and filed a complaint with OSHA. We AFFIRM the ALJ’s
  findings that Estabrook suffered an adverse action when FedEx grounded him and
  directed him to undergo a 15D evaluation. We further AFFIRM the ALJ’s findings
  that FedEx did not retaliate against Estabrook for engaging in protected activity
  when it grounded him and directed him to undergo a 15D evaluation. Accordingly,
  Estabrook’s complaint is DENIED.

         SO ORDERED.