Yates v. Superior Air Charter LLC d/b/a JetSuite Air (agency decision, September 26, 2019)

Plain-English summary

JetSuite Air discharged pilot Colin Yates after he reported safety concerns to the National Transportation Safety Board about a crash landing and the aircraft's braking system. The Board upheld the ALJ's findings that Yates's NTSB interview and email were protected activity, that the activity contributed to his suspension and discharge, and that the company did not prove it would have fired him anyway. Substantial evidence supported the ALJ's credibility findings, including evidence that Yates's final paycheck had been prepared before the termination meeting. The Board left the back pay and other unchallenged relief intact. It removed requirements to email the decision to company personnel and submit training plans because those measures went beyond the relief authorized or needed to abate the violation.

Decision snapshot

• Cited authorities: 49 U.S.C. § 42121; 29 C.F.R. §§ 1979.110 and 1979.102(b)
• Outcome: AIR21 liability and most relief affirmed; company-wide email notice and training-plan requirements set aside.
• Key point: Participation in an NTSB safety investigation was protected, and substantial evidence linked the resulting reports directly to the pilot's discharge.

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:


  COLIN W. YATES,                                ARB CASE NO. 2017-0061

                  COMPLAINANT,                   ALJ CASE NO. 2015-AIR-00028

         v.                                      DATE: September 26, 2019

  SUPERIOR AIR CHARTER LLC
  d/b/a JETSUITE AIR,

                  RESPONDENT.

  Appearances:

  For the Complainant:
        Gary M. Gilbert, Esq.; Cori M. Cohen, Esq.; and Elizabeth N. Moran,
        Esq.; Gilbert Employment Law, P.C.; Silver Spring, Maryland; George
        A. Shohet, Esq; Law Offices of George A. Shohet; Beverly Hills,
        California

  For the Respondent:
        Wayne A. Hersh, Esq.; John F. McCarthy, Esq.; and Mustafa El-Farra,
        Esq.; Littler Mendelson, P.C.; Irvine, California

  BEFORE: William T. Barto, Chief Administrative Appeals Judge; James A.
  Haynes and Heather C. Leslie, Administrative Appeals Judges


                         FINAL DECISION AND ORDER





        PER CURIAM. This matter arises under the employee protection provision of
  the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century. 1 In
  a complaint filed with the Department of Labor’s Occupational Safety and Health
  Administration (OSHA), Colin Yates alleged that his employment with Jetsuite Air
  was terminated in retaliation for raising air transportation safety concerns. OSHA
  dismissed the complaint. Complainant requested a hearing before an administrative
  law judge (ALJ), which hearing was held from May 23, 2016, to May 27, 2016.
  Subsequently, the ALJ issued a Decision and Order (D. & O.) Granting Relief in
  which he concluded that Complainant proved his case by a preponderance of the
  evidence and that Respondent failed to prove by clear and convincing evidence that
  it would have taken the same unfavorable personnel action absent Complainant’s
  protected activity. He ordered back wages plus interest and other damages. We
  affirm with one modification of the ALJ’s damages award.



                                       BACKGROUND 2

        Respondent hired Complainant as a pilot in March 2011. D. & O. at 4. On
  May 25, 2011, Complainant was working as the second-in-command or First Officer
  under the command of a pilot (Captain) on a Phenom 100 aircraft when it crash
  landed at the airport in Sedona, Arizona. D. & O. at 6, 12, 64-65.

         During the landing, it was a part of Complainant’s duties as First Officer to
  monitor the aircraft’s speed. D. & O. at 13. In preparing to land, the Captain called
  for the before-landing checklist. D. & O. at 6. Complainant began going through the
  checklists and when he called out “Vapp,” which is the approach speed, the Captain
  responded “Vappish,” which was not the correct response. Id. (citing Tr. at 148).
  Complainant believed that they were coming in faster than they should be. D. & O.
  at 6, 15.

        For the landing, the Captain landed the aircraft directly on the runway and
  soon after hit the brakes, but the aircraft immediately pulled off to the right. D. &


  1      49 U.S.C. § 42121 (2000) (AIR 21); 29 C.F.R. Part 1979 (2019).
  2       We have assembled the ALJ’s findings of fact from the section of the decision
  “Conclusions of Fact and Law,” but where we could not do so, we used the ALJ’s summary
  of the evidence to form this background narrative. As the ALJ found Complainant to be a
  credible witness, we looked especially to his testimony. D. & O. at 68.



  O. at 6 (citing Tr. at 151). The Captain yelled that the aircraft was fighting him. Id.
  The next time the Captain applied the brakes, the aircraft went to the right again.
  Id. Complainant felt like the aircraft kept releasing the left wheel. Id. A few
  hundred feet before the end of the runway, the aircraft came back to the left, hit the
  fence, and there was a crash. Id. (citing Tr. at 153). When the aircraft came to rest,
  the pilots shut down the engines and evacuated. Id. (citing Tr. at 154). The National
  Transportation Safety Board (NTSB) opened an investigation into the accident
  immediately after it occurred. D. & O. at 65.

         The day after the Sedona incident, Complainant was interviewed by NTSB
  Investigator, Joshua Cawthra. D. & O. at 6. Complainant told Cawthra that he “did
  not feel [that the brakes] were one hundred percent effective and the airplane was
  not stopping.” D. & O. at 64 (citing CX 201). When Cawthra asked Complainant
  whether they had approached at the proper approach speed, Complainant
  responded “No way. Not even close. We were really fast.” D. & O. at 6-7.
  Complainant admitted to Cawthra “that he did not call out speeds or tell the flying
  pilot to go around during the approach.” D. & O. at 14 (Tr. at 341). Brian Coulter,
  Respondent’s Vice President of Operations, sat next to Complainant during his
  interview with the NTSB. D. & O. at 6.

         On June 24, 2013, the NTSB released its factual report about the accident. D.
  & O. at 65. In it, the NTSB found Complainant and the Captain of the aircraft
  responsible for the crash. D. & O. at 100 n.130. Complainant knew before it came
  out that the NTSB Factual Report was going to find pilot error because the aircraft
  came in fast on landing and he told the NTSB investigator as much when he gave
  his statement to the investigator the day after the accident. D. & O. at 15.

         After reviewing the report, on June 26, 2013, Complainant sent an email to
  Cawthra. D. & O. at 62. The report concerned him because it contained some
  inaccurate information and was missing information about slope, which the
  Complainant felt was very important in understanding why the crash happened. D.
  & O. at 15-16. In his email Complainant related concerns about problems with the
  report including allegations that there were serious miscalculations in the manuals
  he had been provided, that necessary information including the importance of slope
  was lacking from the manuals, and that the Phenom had an awful braking system
  such that it should not land at airports like Sedona. Complainant also reported in
  his email that Respondent did not use “Opera,” the program the NTSB used to
  analyze the Sedona incident. D. & O. at 62 (JX M). The same day, Cawthra



  forwarded Complainant’s email to Alex Wilcox, Respondent’s CEO, who forwarded
  it to Coulter. D. & O. at 64 (JX N).

         The next day, June 27, 2013, Wilcox called Complainant and asked him why
  he would send such an email which could hurt the company further than it had
  already been hurt by the Sedona incident. D. & O. at 9. Complainant responded
  that he had questions about the NTSB report and concerns about the Phenom 100
  braking system. D. & O. at 9, 66. On the call, Wilcox suspended Complainant,
  saying that he did not know why Complainant would email the NTSB. D. & O. at
  71, 72. Respondent planned a meeting with Complainant to discuss the contents of
  Complainant’s email. D. & O. at 71.

         On July 2, 2013, Complainant met with Wilcox and Coulter to discuss
  Complainant’s email to the NTSB. D. & O. at 66. Wilcox and Coulter entered the
  meeting with Complainant’s final paycheck printed “check-in-hand.” D. & O. at 75.
  At the meeting, Complainant reiterated his concerns about the Phenom’s braking
  system and the problems he saw with the NTSB report regarding the Sedona
  accident. D. & O. at 66. When asked if he could have done anything to try to prevent
  the crash, “Complainant acknowledged that they could have been on speed or done
  a go around or Complainant could have said something to the captain, but they did
  not.” D. & O. at 9. Respondent fired Complainant at the meeting. D. & O. at 70.

        The NTSB formally adopted its findings about the Sedona accident on August
  29, 2013. D. & O. at 65.



                        JURISDICTION AND STANDARD OF REVIEW

        The Secretary of Labor has delegated to the ARB authority to hear appeals
  and issue final agency decisions under AIR 21 and its implementing regulations. 3
  The ARB reviews questions of law presented on appeal de novo, but is bound by the




  3      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(a).





  ALJ’s factual findings as long as they are supported by substantial evidence. 4 The
  ARB generally defers to an ALJ’s credibility determinations, unless they are
  “inherently incredible or patently unreasonable.” 5



                                         DISCUSSION

        The ALJ concluded that Complainant had proved by a preponderance of the
  evidence that protected behavior or conduct was a contributing factor in the
  unfavorable personnel action alleged in the complaint. The ALJ also concluded that
  Respondent had failed to prove by clear and convincing evidence it would have
  taken the same unfavorable personnel action in the absence of the complainant's
  protected behavior or conduct. Respondent has alleged error by the ALJ in these
  determinations except for the element of adverse action, as well as the ALJ’s
  damages award. We discuss each in turn.

  1. Protected Activity

         The ALJ concluded that Complainant engaged in protected activity 1) on May
  26, 2011, when he expressed safety concerns about the brakes on the aircraft he had
  helped pilot which had crashed, and 2) on June 26, 2013, when he emailed Joshua
  Cawthra, NTSB investigator, about his concerns with the NTSB report about the
  crash. D. & O. at 64.

         On appeal, Respondent objects to the ALJ’s finding that Complainant
  engaged in protected activity because it argues that the June 26, 2013 email, which
  it states is the only alleged protected activity, fails to identify any Federal Aviation
  Administration or other air safety order, regulations, or standard that was violated.
  Br. at 23. Respondent also argues that the ALJ erred because it asserts that
  Complainant’s belief in a violation related to the June 26, 2013 email was not
  objectively reasonable. Br. at 25.

        Under AIR 21, employers may not take adverse action against employees
  because they have engaged in protected activity, as set forth here:

  4     29 C.F.R. § 1979.110(b); Luder v. Cont’l Airlines, Inc. ARB No. 10-026, ALJ No.
  2008-AIR-009, slip op. at 5-6 (ARB Jan. 31, 2012).
  5      Luder, ARB No. 10-026, slip op. at 6 (citations omitted).



         (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) . . . 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;
         (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); see 29 C.F.R. § 1979.102(b).

         It is clear that both Complainant’s May 26, 2011 interview with the NTSB
  and his June 26, 2013 email to the NTSB qualify as assistance or participation in a
  proceeding relating to carrier safety as described in 49 U.S.C. § 42121(a)(4). The ALJ
  also so found. D. & O. at 64-65, 65 n.69. 6 This is so regardless of whether the
  reports themselves also constitute protected activity independently under 49 U.S.C.
  § 42121(a)(1) or (2). Thus, we affirm the ALJ’s conclusion that Complainant engaged
  in protected activity on both of these occasions.

  2. Contributing Factor Causation

        The ALJ concluded that the record demonstrated a causal connection
  between Complainant’s protected activity and the adverse personnel action
  Respondent took against him. D. & O. at 71. The ALJ explained that the record
  showed that Respondent suspended Complainant as a direct result of

  6      “Thus, at the very least, Complainant ―assisted or participated . . . [in a] proceeding
  about air carrier safety.” We note that this finding alone is sufficient to resolve the question
  of whether Complainant engaged in protected activity when he sent his email to NTSB on
  June 26, 2013. The parties zealously argued additional facts and theories of law but the
  ALJ correctly resolved the matter with this basic finding.




  Complainant’s June 26, 2013 email which was protected activity. Id. at 72.
  Additionally, the meeting during which Complainant’s employment was terminated
  occurred directly as a result of the same protected email. Id. The ALJ declined to
  credit Respondent’s explanation that there was an intervening event consisting of
  Complainant’s attitude and expressions during the meeting that would have caused
  the termination decision even without contribution of the protected activity. Id.

         Respondent argues on appeal that the ALJ applied an incorrect burden of
  proof to the issue of contributing factor causation. Br. at 18. Respondent at first
  argues that the Board’s decision in Palmer v. Canadian Nat’l Ry. / Ill. Cent. R.R.
  Co., ARB No. 16-035, ALJ No. 2014-FRS-154, slip op. at 14-15 (ARB Sept. 30, 2016,
  reissued Jan. 4, 2017) misstates the burden of proof, but then in seeming conflict
  with its first argument, argues that the ALJ actually applied a test for causation
  more like the dissent in Palmer, than the majority. Respondent appears to be
  confusing what level or quantum of causation that a complainant is required to
  show with a complainant’s burden of proof to establish the required causation
  exists. These two burdens are distinct, as Palmer attempted to explain, with an
  apparently questionable degree of success. 7

         Regardless of Palmer’s explanations about contributing factor causation or
  the ALJ’s recitations of them, we conclude that the ALJ correctly analyzed
  causation in this case. 8 The ALJ expressly found direct causation of the adverse
  action based on Respondent’s statements and actions about Complainant’s protected

  7       Palmer, ARB No. 16-035, slip op. at 21, n.89 (“We use the term ‘standard of proof,’ as
  the United States Supreme Court recently has, ‘to refer to the degree of certainty by which
  the factfinder must be persuaded of a factual conclusion to find in favor of the party bearing
  the burden of persuasion.’ Microsoft Corp., v. i4i Ltd. P’ship, 564 U.S. 91, 100 n.4 (2011).
  The ‘standard of proof’ does not affect the underlying question to be asked. Rather, as the
  Court explained, the term ‘standard of proof’ simply ‘specifies how difficult it will be for the
  party bearing the burden of persuasion to convince the [factfinder] of the facts in its favor.’”
  Id.) and 52 (On the question of whether “the employee’s protected activity play a role, any
  role, in the adverse action,” “the complainant has the burden of proof, and the standard of
  proof is by a preponderance.”) (emphasis added).

  8      We note that even the most venerable and frequently cited of our past decisions
  should not be regarded as talismans and that each case deserves analysis on its own merits
  both as to the governing statutory and regulatory law and the instant facts. In this appeal
  it appears that the discussion of Palmer may have created confusion rather than dispelled
  it.




  activity. This finding rested on evidence that Respondent found fault with
  Complainant’s email, questioned his decision to write it and then suspended and
  terminated his employment because of his email. We conclude that substantial
  evidence in the record supports the ALJ’s finding that Complainant’s protected
  activity caused the adverse action in this case. While another ALJ looking at the
  same record might have decided for Respondent, our standard of review requires us
  to affirm the ALJ because substantial evidence supports his resolution of the
  matters at issue. Stated even more simply, the ALJ believed Complainant and
  disbelieved Respondent as to the reason for Complainant’s termination, and, as the
  trier-of-fact, that decision is largely his responsibility rather than ours.

  3. Whether Respondent Would Have Taken the Same Action Absent
  Protected Activity9


  9       At one point the ALJ stated that Complainant’s protected activity was “inextricably
  intertwined with the adverse employment action.” D. & O. at 75. We take the ALJ to mean
  that he found that Complainant’s protected activity directly led to the adverse action,
  rather than that the protected activity and the adverse action were essentially the same
  event. The Board has used the term “inextricably intertwined” in the past when the reason
  the employer gives for taking an adverse action arises out of the same occurrence which the
  employee cites as protected activity and when the two characterizations of the same event
  cannot be discussed or understood separately. See Speegle v. Stone & Webster Constr. Inc.,
  ARB No. 11-029-A, ALJ No. 2005-ERA-006, slip op. at 12-13 (ARB Jan. 31, 2013) (holding
  that complainant’s protected activity was inextricably intertwined with the employer’s
  reasons for taking adverse action against complainant because complainant used profane
  language while making protected statements). In this case, it is more appropriate to
  conclude merely that the protected activity (Complainant’s report to the NTSB the day after
  the accident and the June 26, 2013 email) directly led to the adverse action. These
  protected actions are not, however, “inextricably intertwined” with Respondent’s stated
  reasons for the adverse action. Respondent asserted that Complainant’s attitude and
  expressions during the July 2nd meeting with Wilcox and Coulter caused Respondent to
  decide to terminate Complainant. On a different set of facts, had Respondent alleged as its
  stated reason for terminating Complainant that his protected activity had violated a
  company policy about reporting unsafe situations or that he had made false statements,
  then our previous decisions would support a description that the evidence was “inextricably
  intertwined.” But even if the protected activity in a given case and the stated basis for the
  adverse action were legally and factually “intertwined,” the ALJ must still thoroughly
  examine and analyze the evidence proffered in connection with any affirmative defense.
  Evidence that shows that protected activity and adverse action are sufficiently intertwined
  to establish that protected activity was, inescapably, a cause of an adverse employment
  action may nevertheless be insufficient to undermine clear and convincing counter evidence
  that Respondent would have taken the same action even in the absence of the protected
  activity.



         For many of the same reasons that led the ALJ to find that there was
  contributing factor causation, he also found that Respondent had not proven that it
  would have terminated Complainant’s employment absent the protected activity. D.
  & O. at 74-76. The ALJ found that the meeting at which Respondent fired
  Complainant was called to address Complainant’s protected activity (the email). D.
  & O. at 74. The ALJ did not believe that Respondent lost faith in Complainant’s
  ability as a pilot during the meeting. Id. The ALJ found it significant that
  Respondent had already printed out Complainant’s last paycheck prior to the
  meeting and had it there to deliver after it fired him, belying the argument that the
  decision to terminate had not already been made prior to the meeting. Id. at 75. The
  ALJ also found that Respondent did not prove that it would have fired Complainant
  because of any allegedly new information derived from the NTSB report. D. & O. at
  76 n.78. Finally, the ALJ found that Respondent engaged in disparate treatment
  relating to Complainant’s firing because Wilcox was not normally involved in pilot
  discipline, but was in Complainant’s case—the ALJ concluded this was additional
  direct evidence that Respondent could not clearly and convincingly prove that it
  would have taken the same action against Complainant absent protected activity.

         On appeal, Respondent argues that there is clear and convincing evidence
  that Respondent fired Complainant because he refused to accept any responsibility
  for the crash. Br. at 27. Respondent’s argument ignores key ALJ findings which
  caused him to reach the opposite conclusion. The ALJ found that Complainant knew
  at the time of the accident that the aircraft was approaching too fast and admitted
  this in his initial interview with Cawthra, while Coulter was sitting right next to
  him. Complainant stated that “that he did not call out speeds or tell the flying pilot
  to go around during the approach.” D. & O. at 14 (Tr. at 341). Thus, the ALJ found
  that Complainant did acknowledge that there was pilot error and that Coulter
  heard that admission. 10 We affirm the ALJ conclusion that the Respondent failed to
  prove it would have taken the same action absent protected activity as it is
  supported by substantial evidence in the record.




  10      The ALJ stated that Complainant knew that the NTSB Factual Report would find
  pilot error because the aircraft came in fast on landing and Complainant told the NTSB
  investigator as much when he gave his statement to the investigator the day after the
  accident. D. & O. at 15.




  4. Damages

         The ALJ ordered Respondent to 1) pay Complainant back pay in the amount
  of $122,957.26, 2) pay Complainant $7,500.00 in compensatory damages for
  reimbursement for training to work for STA Jets, 3) pay Complainant $3,986.87 in
  costs and expenses associated with his move to Phoenix to work for Swift, 4)
  expunge negative personnel records that relate to either the Sedona incident or the
  parties’ actions surrounding the NTSB report which led to Complainant’s
  discriminatory firing, 11 5) email copies of his D. & O. to all of its employees, officers
  and directors, 6) pay Complainant $9,390.42 as nominal compensation for emotional
  damages, and 7) pay Complainant pre- and post-judgment interest on his back pay
  award. The ALJ also allowed for Complainant to submit an attorney’s fee petition.

         With respect to damages, Respondent’s only objection on appeal is that the
  ALJ erred by ordering Respondent to email the D. & O. to all of its employees,
  officers, and directors. It asserts that because Complainant did not establish that
  Respondent engaged in a pattern or practice of discrimination such action is not
  warranted. Br. at 28. We reverse this aspect of the ALJ’s damages award,
  specifically, the ALJ’s order that Respondent must email copies of its D.&O. to
  employees, officers, and directors, provide and place a summary of the order in the
  email, and provide the summary as well as Respondent’s plans to effectuate further
  training regarding AIR 21 to the ALJ. The regulations provide that if we conclude
  that the employer has violated the law, we shall order the employer to abate the
  violation. 29 C.F.R. § 1979.110(d). We hold that the ALJ erred by requiring
  Respondent to email the D. & O. to all of its employees, officers, and directors and
  submit its training plans to the ALJ; such measures are not authorized by statute
  or regulation and go further than necessary or appropriate to ensure abatement of
  the injury suffered in this case. We do not disturb any other aspects of the ALJ’s
  damages award as they have not been appealed. See 29 C.F.R. § 1979.110(a).




  11     We recognize that other administrative and legal obligations may require that
  certain information and records about the incident and Complainant’s involvement be
  retained and used for reasons unrelated to Complainant’s employment status. We clarify
  that Respondent should take reasonable steps to keep those records segregated from
  Complainant’s employment records to ensure that Complainant suffers no further adverse
  employment action as a result of his protected activities.



                                          CONCLUSION

         Because the ALJ’s findings of fact are supported by substantial evidence in
  the record, we hereby AFFIRM the ALJ’s conclusions that 1) a violation of AIR 21
  has occurred because Complainant’s protected activity contributed to Respondent’s
  decision to take adverse action against him, and that 2) relief may be ordered
  because Respondent failed to prove that it would have taken the same action
  against Complainant absent his protected activity. We SET ASIDE that portion of
  the relief ordered by the ALJ’s that requires Respondent to email the D. & O. to
  various individuals and provide the ALJ with Respondent’s plans to effectuate
  further training regarding AIR 21 as discussed above. In all other respects the relief
  ordered by the ALJ is AFFIRMED. 12

         SO ORDERED.




  12      At the request of the Complainant, the Board must assess against Respondent all
  costs and expenses (including attorney's and expert witness fees) reasonably incurred. 29
  C.F.R. § 1979.110(d). If neither party seeks judicial review of this Order, Complainant may
  file a petition with the Board seeking costs and expenses incurred in the prosecution of this
  complaint no earlier than 60 days after the date of issuance of this Order. Any such petition
  must be served on Respondent, accompanied by supporting affidavit or declaration, and
  include such documentation as will allow the Board to assess the accuracy and
  reasonableness of the costs and expenses sought. Respondent may file a response to the
  petition within 14 days of the date of receipt. If judicial review is sought, no petition may be
  filed until when and if that appeal is concluded in favor of Complainant.