Cerny v. Triumph Aerostructures-Vought Aircraft Division (agency decision, October 31, 2019)

Plain-English summary

Aircraft stress engineer Jiri Cerny alleged that Triumph Aerostructures retaliated against him for raising air-safety concerns. The Board held that Cerny forfeited challenges involving three categories of alleged protected activity because he did not develop those arguments on appeal. It affirmed the finding that his remaining concern, a checklist of report changes he declined to make, was not based on an objectively reasonable belief of an air-safety violation. The Board also found substantial evidence that Triumph had decided to terminate Cerny for performance reasons before he submitted the checklist. It affirmed the ALJ and denied the complaint.

Decision snapshot

• Cited authorities: 49 U.S.C. § 42121; 29 C.F.R. §§ 1979.109(a) and 1979.110
• Outcome: The Board affirmed the ALJ's findings and denied the AIR21 complaint.
• Key point: An AIR21 complainant needs a subjectively held and objectively reasonable safety concern, and must develop each challenged issue on appeal.

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:



  JIRI CERNY,                                    ARB CASE NO. 2019-0025



                  COMPLAINANT,                   ALJ CASE NO. 2016-AIR-00003

         v.                                      DATE:      October 31, 2019

  TRIUMPH AEROSTRUCTURES-
  VOUGHT AIRCRAFT DIVISION,

                  RESPONDENT.



  Appearances:

  For the Complainant:
        Christine Neill, Esq.; Jane Legler Byrne, Esq.; Neill & Bryne Law,
        PLLC, Dallas, Texas

  For the Respondent:
        W. Chris Harrison, Esq.; Audrey M. Calkins, Esq.; Ogletree, Deakins,
        Nash, Smoak & Stewart, P.C., Memphis, Tennessee

  Before: William T. Barto, Chief Administrative Appeals Judge; James A.
  Haynes and Thomas H. Burrell, Administrative Appeals Judges



                         FINAL DECISION AND ORDER


         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 (2016). Complainant Jiri Cerny
  filed a complaint alleging that Respondent Triumph Aerostructures (Triumph)
  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 January 15, 2019, that Triumph did
  not violate the Act. We affirm.

                                      BACKGROUND

        Jiri Cerny (Complainant or Cerny) began working for Triumph in 2011 as a
  contract stress engineer. During the time in question, Triumph built E-2 fuselages
  for Embraer, a Brazilian airline company. Cerny reported to Michael Hoffmann and
  Todd Mostrog who were “stress leads.” The stress leads reported to Greg Whittaker,
  manager of the project. Byron Mueller supervised Whittaker. D. & O. at 5.

     1. Cerny’s activity from October 2013 through the fall of 2014

        In October 2013, Hoffmann directed Cerny to develop an alternate stress
  analysis for the E-2 fuselage frames. Cerny consulted a stress-analysis book which
  characterized one of the plane’s features, a “mouse hole,” as unacceptable and
  unsafe. Id. at 8-12. Cerny conveyed his concerns to Hoffmann who disagreed with
  the applicability of Cerny’s source and his conclusion that the mouse-hole design
  was unsafe. Id. at 10, 47.

         In mid-January 2014, Whittaker distributed a report (MAZ report) from
  Embraer which contained load data on joints and fasteners. Hoffmann and Mostrog
  directed the engineers to examine the MAZ report for missing values. Id. at 12.
  Reviewing the MAZ report, Cerny identified discrepancies and believed that they
  could result in the failure of a joint. Id. at 12-13. Cerny notified Hoffmann of these
  problems in January and February 2014. Id. at 13.

        Cerny was assigned work on a circumferential splice joint in April 2014.
  Cerny claims that Embraer’s design calls for an inter-rivet buckling margin of


  safety of fifteen percent, which Cerny believed would result in a splice being too
  heavy and could lead to joint failure. Id. at 15. Cerny notified Hoffmann of his
  perception of the splice and margin of safety. Id. at 15-16.

     2. Cerny’s APU tail cone report and checklist

         In November 2013, Hoffmann directed Cerny to begin working on the
  alternative power unit (APU) and tail cone attachment. Cerny turned in a draft
  APU tail cone report in July 2014 without a fittings analysis. Mostrog asked why
  the fittings were not included and then directed him to perform a fittings analysis.
  D. & O. at 17. Mostrog told Cerny to use CATIA modelling software in the analysis.
  Cerny submitted the supplemental fittings analysis on July 11, 2014.

         In the fall of 2014, Hoffmann directed his team to turn their preparation
  work toward a rough draft for the project. Cerny submitted his draft of the final
  APU tail cone report in December 2014. Hoffmann accepted Cerny’s report when he
  submitted it, but Hoffmann then left work for an extended period. When Hoffmann
  returned in late February, he had another engineer review Cerny’s work for
  consistency and calculations. Hoffmann received negative feedback from the
  engineer. Id. at 18-19. One of the problems concerned Cerny’s inability to use the
  CATIA modelling software; Cerny’s geometry and pictures were off. When
  Hoffmann reviewed the report and saw an incorrect picture, he concluded that he
  could not trust anything else in the report. Hoffmann testified that there were
  issues throughout the report. Id. at 19.

         On March 6, 2015, Hoffmann returned Cerny’s draft with heavy redline
  markup and directed Cerny to incorporate the changes. Id. at 18. Taking issue with
  some of the changes, Cerny went through the redlined document and created a
  “checklist” of all the changes that he did not make because they conflicted with
  engineering science and Triumph’s manual. Id. at 19-20. Cerny felt that the plane
  should be safe and light and that proper bolts and joints should be used. Cerny
  submitted his report and his checklist of non-incorporated edits on April 2, 2015.
  After submitting his checklist, Cerny testified that Hoffmann instructed him to
  work on electrical trays for his next project. Id. at 32.




     3. Cerny’s performance problems

        In mid-2014, Hoffmann and Mostrog provided Whittaker with negative
  performance feedback concerning Cerny. Id. at 25-27. Whittaker had a meeting
  with Cerny in mid-July 2014. Whittaker discussed Cerny’s being away from his
  desk often, excessive personal telephone use, and watching sports on his iPad while
  at work. Id. at 27. Whittaker also spoke with Cerny about his missing fittings
  analysis on his APU tail cone assignment.

         Hoffmann and Mostrog were unsatisfied with Cerny’s written submissions
  including his lack of competency using computer analytical tools. Id. at 8, 29.
  Hoffmann had others work with Cerny to assist him in pulling material from the
  computer software and to double check Cerny’s work. Id. at 16-17, 22, 24. When
  Hoffmann returned from his extended absence, he had another engineer review
  Cerny’s work on the APU tail cone report submitted in December 2014 for
  consistency and calculations. Hoffmann received feedback that Cerny’s work was
  below average. Id. at 19.

         Continuing to experience difficulties with Cerny’s work product and having to
  redo Cerny’s analysis, Hoffmann and Mostrog recommended in the February-March
  2015 time frame that Whittaker remove Cerny. Whittaker spoke to Mueller about
  terminating Cerny in late February 2015. Id. at 29. Further meetings were held in
  mid-March and a final termination decision was reached on March 27, 2015, after
  Mueller and Whittaker exchanged a draft termination document by e-mail. RX-9; D.
  & O. at 31. Mueller was the decision-maker, but Whittaker participated in the
  decision. D. & O. at 6, 29. On April 1, 2015, Mueller and Whittaker decided to effect
  the termination the next day, April 2, 2015. CX-110; D. & O. at 31.

         Cerny filed a retaliation complaint with the Occupational Safety and Health
  Administration (OSHA). OSHA dismissed Cerny’s claim on October 5, 2015. Cerny
  then filed objections with the Office of Administrative Law Judges and requested a
  hearing. The ALJ assigned to the case held a hearing and found in favor of
  Respondent Triumph. The ALJ found that Cerny subjectively believed that the
  mouse-hole design was a violation of federal law related to air carrier safety but
  that his belief was not objectively reasonable because the mouse-hole design was
  common on modern planes. D. & O. at 46. The ALJ found that Cerny’s report of


  discrepancies in the MAZ report and objections to the inter-rivet joints were neither
  subjectively nor objectively reasonable. Id. at 49-53. The ALJ also found that Cerny
  subjectively believed that his APU tail cone checklist of safety concerns revealed a
  violation of federal law related to air carrier safety but that his belief was not
  objectively reasonable because the errors in his work and the redline modifications
  to his report were confirmed by multiple qualified persons. Id. at 54. Even if the
  checklist had constituted protected activity, the ALJ found that Triumph decided to
  terminate Cerny before he submitted his APU tail cone checklist so that it could not
  have been a contributing factor in the decision to terminate him. Cerny filed this
  appeal with the Administrative Review Board (ARB or Board).

                       JURISDICTION AND STANDARD OF REVIEW

         The ARB has jurisdiction to review the ALJ’s AIR 21 decision by order of the
  Secretary of Labor. 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 for substantial evidence and conclusions of law de novo. 29 C.F.R. §
  1979.110(b). As the United States Supreme Court has recently noted, “[t]he
  threshold for such evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S.
  Ct. 1148, 1154 (2019). Substantial evidence is “‘more than a mere scintilla.’ It
  means—and means only—‘such relevant evidence as a reasonable mind might
  accept as adequate to support a conclusion.’” Id. (citing and quoting Consolidated
  Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The ARB generally defers to an
  ALJ’s credibility determinations, unless they are “inherently incredible or patently
  unreasonable.” Jeter v. Avior Tech. Ops., Inc., ARB No. 06-035, ALJ No. 2004-AIR-
  030, slip op. at 13 (ARB Feb. 29, 2008).

                                      DISCUSSION

         To prevail on his whistleblower complaint, Cerny must prove by a
  preponderance of the evidence that (1) he engaged in activity protected by AIR 21;
  (2) an unfavorable personnel action was taken against him; and (3) 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). If Cerny proves that protected activity
  was a contributing factor in the personnel action, Triumph may nevertheless avoid


  liability if it proves by “clear and convincing evidence” that it would have taken the
  same 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. Cerny did not engage in protected activity

         AIR 21 protects employees who blow the whistle by providing information on
  matters related to air carrier safety. 1 Protected activity under AIR 21 has two
  elements: (1) the information that the complainant provides must involve a
  purported violation of a regulation, order, 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. Burdette v. ExpressJet
  Airlines, Inc., ARB No. 14-059, ALJ No. 2013-AIR-016 (ARB Jan. 21, 2016);


  1      Under AIR 21, a complainant engages in protected activity when he or she does the
  following:
                  (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;
                  (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.




  Hindsman v. Delta Air Lines, Inc., ARB No. 09-023, ALJ No. 2008-AIR-013 (ARB
  June 30, 2010).

          In analogous settings, we have held that a belief is objectively reasonable
  when a reasonable person, with the same training and experience as the employee,
  would believe that the conduct implicated in the employee’s communication could
  rise to the level of a violation of one of the provisions of Federal law enumerated in
  the whistleblower protection statute at issue. See Occhione v. PSA Airlines, ARB
  No. 13-061, ALJ No. 2011-AIR-012 (ARB Nov. 26, 2014); Sylvester v. Parexel Int’l,
  LLC, ARB No. 07-123, ALJ Nos. 2007-SOX-039, -042, slip op. at 14-15 (ARB May
  25, 2011);Wiest v. Lynch, 710 F.3d 121, 132 (3d Cir. 2013). Courts have held that an
  “objectively reasonable belief can be established as a matter of law unless there is a
  genuine issue of material fact.” Allen v. Admin. Rev. Board, 514 F.3d 468, 477 (5th
  Cir. 2008). If reasonable minds could disagree on “objective reasonableness,” the
  ALJ’s finding is reviewed under the substantial evidence standard. A complainant’s
  belief that an employer’s act violates a statute or regulation goes to his subjective
  belief. Sylvester, ARB No. 07-123, slip op. at 14-15.

         The ALJ found that none of Cerny’s four claims of protected activity were
  protected under AIR 21. On appeal, Cerny limited his brief to discussing why the
  APU tail cone checklist of refused corrections was protected. Otherwise, Cerny
  summarily objected to the ALJ’s findings on the other three classes of alleged
  protected activities. Cerny Br. at n.1. We conclude that Cerny has thereby waived
  objections to three categories of protected activity not briefed. 2

  2      Cerny wrote the following in his opening brief:
                  While, Cerny strenuously disagrees with the determination that these acts
                  did not constitute protected conduct under AIR 21, due to space constraints
                  on briefing on appeal, this brief’s arguments are limited to the issue of
                  whether the ALJ erred in not finding that Cerny’s refusal to make requested
                  changes on his APU / Tailcone report constituted protected conduct.
  Br. 2 n.1. Other than this general claim, Cerny’s brief did not argue that the ALJ erred in
  finding that the other three categories did not meet the definition of protected activity.
  Further, Cerny did not assert and argue that those categories of alleged protected activity
  contributed to his termination. An appellant is required to develop argument with citation
  to law and authority to avoid waiver or forfeiture. See Dev. Res., Inc., ARB No. 02-046, slip
  op. at 4 (ARB Apr. 11, 2002) citing Tolbert v. Queens Coll., 242 F.3d 58, 75-76 (2d Cir. 2001)
  (noting that in the Federal Courts of Appeals, it is a “settled appellate rule that issues


         As for the issue before us, we note that Cerny submitted his draft of the APU
  tail cone report in the fall of 2014 as part of an assigned task. Hoffmann returned
  Cerny’s APU tail cone report in early March with heavy redline markup and
  directions to make changes. Cerny disagreed with the corrections and declined to
  make them because he believed that they conflicted with engineering science and
  Triumph’s manual, citing to 14 C.F.R. § 25.307, which identifies reliable methods in
  proof of structure. D. & O. at 19-20. Cerny claimed that compiling his checklist and
  his refusal to make changes were protected activities; the ALJ found that Cerny had
  a subjective belief but not an objectively reasonable belief that his checklist was
  protected activity. Id. at 53-55.

         On appeal, Cerny claims that he need not show that a law was actually
  violated, but need only prove that he had a reasonable belief that his violation
  report relates to air carrier safety. Cerny further argues that another person
  reviewed his APU tail cone report after his termination but did not have any
  objections to Cerny’s work, and contends that this fact bolsters his claims that the
  checklist was protected activity under AIR 21. Cerny also challenges the ALJ’s
  credibility findings concerning Hoffmann, because Hoffmann’s testimony contained
  significant discrepancies. According to Cerny, Hoffmann inconsistently accepted his
  previous draft notes on the APU tail cone without comment but later objected to the
  draft. Cerny also challenges Hoffmann’s testimony concerning whether he reviewed
  or merely glanced through the APU tail cone checklist before terminating Cerny.
  Cerny claims that his work did not contain technical error and his belief of a
  violation was reasonable for an engineer with his training and experience.

         Having fully considered Cerny’s arguments, we nevertheless affirm the ALJ’s
  findings as supported by substantial evidence and his conclusions as legally correct.
  Cerny is correct that he need not prove an actual violation to engage in activity
  protected under AIR 21, but only a reasonable belief that a violation of a federal
  rule or regulation related to air safety occurred or was about to occur. Furland v.

  adverted to in a perfunctory manner, unaccompanied by some effort at developed
  argumentation, are deemed waived”); United States v. Hayter Oil Co., 51 F.3d 1265, 1269
  (6th Cir. 1995) (“It is not our function to craft an appellant’s arguments.”); United States v.
  Dunkel, 927 F.2d 955, 956 (7th Cir.1991) (“A skeletal ‘argument,’ really nothing more than
  an assertion, does not preserve a claim [for appellate review].”).


  Am. Airlines, ARB Nos. 09-102, 10-130, ALJ No. 2008-AIR-011 (ARB July 27, 2011).
  But an employee’s reasonable belief is comprised of both a subjective and an
  objective component, and we affirm the ALJ’s findings that Cerny’s belief that his
  observations in the checklist were protected activity was not objectively reasonable.
  When Hoffmann returned in late February, he had another engineer review Cerny’s
  work for consistency and calculations, and that engineer provided negative feedback
  concerning the checklist. D. & O. at 18. One of the problems identified concerned
  Cerny’s inability to proficiently use analytical software, but Hoffmann testified that
  there were also issues throughout the report. The ALJ credited the testimony of
  Hoffmann and the other engineer in support of his finding that Cerny’s checklist
  was not an objectively reasonable protected activity because the redline corrections
  made to the checklist by Hoffman were accurate and needed. Id. at 54.

      2. Triumph did not retaliate against Cerny when it terminated his
         employment

         The ALJ found that Triumph fired Cerny for his inability or unwillingness to
  use computer programs and his inability to produce useful work. D. & O. at 57. The
  ALJ did not find that Cerny’s checklist, even if it were protected under AIR 21,
  contributed to his termination. 3 Rather, the ALJ found that Triumph decided to
  terminate Cerny before he filed his tail cone checklist. Id. at 60-61.

         Cerny argues on appeal that Triumph decided to terminate him within hours
  of receiving the APU tail cone checklist on April 2 and that Triumph’s claim to have
  decided to terminate him before that day was pretext for several reasons. Cerny
  argues that documentation shows that Triumph extended his contract in March and
  viewed Cerny as a “vital member” who was “needed for his Embraer work during
  this crucial phase of engineering release.” CX-10. Further, Cerny received a job
  assignment involving electrical trays on April 2 that Cerny states would take two to
  three weeks to complete. Cerny claims that another engineer reviewed and
  completed the APU tail cone report without comment on his checklist. Cerny points
  to post-termination statements made by Whittaker and Triumph’s President which
  Cerny argues support his claim of pretext. Cerny further claims that the ALJ erred

  3     Parties do not dispute the ALJ’s finding that a termination is an adverse action
  under AIR 21. D. & O. at 43.


  in finding that Triumph decided to fire him before April 2 because Whittaker
  answered in an interrogatory response in 2016 that the decision was made on or
  about April 2. Finally, Cerny offers evidence and argument that his work and
  performance were not deficient.

         Notwithstanding these assertions, we conclude that substantial evidence
  supports the ALJ’s finding that Triumph decided to terminate Cerny for
  performance reasons before he submitted his APU tail cone checklist report on April
  2. Hoffmann, Mostrog, and Whittaker first discussed Cerny’s termination with
  Mueller in a February 2015 meeting. D. & O. at 29-30. In March 2015, Whittaker
  met with stress leads Hoffmann and Mostrog who indicated that they could perform
  their duties without Cerny. Id. at 30. Having received negative feedback, Mueller
  and Whittaker decided to terminate Cerny in late March for performance related
  reasons. Whittaker and Mueller exchanged a draft March 27 termination report 4 for
  comments. D. & O. at 31; RX-9, RX-10. On April 1, Whittaker and Mueller
  exchanged e-mails on Cerny’s pending termination and decided that his last day
  would be April 2. D. & O. at 31; CX-110. Because the decision was made before April
  2, Cerny’s APU tail cone checklist submitted on April 2 could not have been a
  contributing factor in his termination.

        Cerny’s assertions on appeal do not undermine the substantial evidence
  supporting the ALJ’s findings. Mueller explained that Triumph needed to renew
  and extend Cerny’s job in March if he were to be on-site for even a few days as his
  badge would not work without current credentials. D. & O. at 30. Finally, Mueller
  excused the high praise in Cerny’s March extension letter as boilerplate used in


  4      Cerny’s brief to the ARB suggests that the March 27 e-mail and draft termination
  document, which indicates that Mueller and Whittaker were preparing Cerny’s termination
  on that date, is a forgery because it contains irregularities including the fact that Mueller’s
  signature is not on the e-mail though his e-mails usually contain signatures. In further
  support of this claim, Cerny points out that Mueller and Whittaker testified that they
  intended to fire Cerny in the “a.m.” but the document circulated in the March 27 e-mail
  stated that he will be fired in the “p.m.” The ALJ did not find these arguments compelling.
  D. & O. at 61. We conclude that the ALJ did not err and that his findings are supported by
  substantial evidence for the reasons discussed above. Even if the March 27 e-mail and draft
  termination document were called into question, the ALJ’s finding that Triumph decided
  before April 2 to fire Cerny is supported independently by Mueller and Whittaker’s April 1
  e-mail confirming that they planned to terminate Cerny the next day. D. & O. at 31.


  many letters of contract extension. Id. On appeal, Cerny points to other evidence
  that the ALJ could have given more probative weight but chose not to. The ALJ,
  having examined both parties’ arguments, found that Triumph decided to fire Cerny
  for performance reasons before he submitted the checklist. This finding is supported
  by substantial evidence.

                                      CONCLUSION

         We AFFIRM the ALJ’s findings that Cerny did not engage in protected
  activity when he provided a checklist of revisions that he believed violated a federal
  law or regulation related to air safety. We further AFFIRM the ALJ’s findings that
  Triumph did not retaliate against Cerny when it terminated his employment.
  Accordingly, Cerny’s complaint is hereby DENIED.

         SO ORDERED.