Kossen v. Empire Airlines (agency decision, July 19, 2023)

Plain-English summary

Darren Kossen asked the Board to reconsider its affirmance of an administrative judge's denial of his AIR21 retaliation complaint. The Board explained that reconsideration requires previously unavailable material law or facts, later material developments, a change in law, or failure to consider facts already presented. Kossen's filing instead repeated allegations about unsafe aircraft, evidence, documents, and an asserted threat to contact the FAA, while also raising a blacklisting theory that had not been developed earlier. None changed the supported finding that Empire Airlines discharged him over concerns about his competency, judgment, professionalism, and refusal to accept responsibility. The Board denied reconsideration in full.

Decision snapshot

• Cited authority: 49 U.S.C. § 42121
• Outcome: Request for reconsideration denied in its entirety.
• Key point: Reconsideration does not reopen an AIR21 case for repeated arguments or a new undeveloped theory when no qualifying new facts, law, or overlooked evidence is shown.

Full text (DOL official public release)

U.S. Department of Labor           Administrative Review Board
                                   200 Constitution Ave. NW
                                   Washington, DC 20210-0001

IN THE MATTER OF:

DARREN KOSSEN, ARB CASE NO. 2022-0004

           COMPLAINANT,                      ALJ CASE NO. 2019-AIR-00022
                                             ALJ CHRISTOPHER LARSEN
     v.
                                             DATE: July 19, 2023

EMPIRE AIRLINES,

           RESPONDENT.

Appearances:

For the Complainant:
Darren Kossen; pro se; Honolulu, Hawaii

For the Respondent:
Dale A. De Felice, Esq. and Paul S. Stewart, Esq.; Paine Hamblen
LLP; Spokane, Washington

Before PUST, BURRELL, and WARREN, Administrative Appeals Judges

                  ORDER DENYING RECONSIDERATION

     PER CURIAM:

  Darren Kossen (Complainant) filed a complaint under the Wendell H. Ford

Aviation Investment and Reform Act for the 21st Century 1 (AIR 21), and its implementing regulations, 2 alleging that his former employer, Empire Airlines (Respondent), unlawfully discriminated against him under AIR 21’s whistleblower

1 49 U.S.C. § 42121.
2 29 C.F.R. Part 1979 (2023).
 2

protection provisions. After a hearing, an Administrative Law Judge (ALJ) found that Complainant failed to prove that Respondent violated AIR 21 and denied the complaint. On June 13, 2023, the Administrative Review Board (ARB or Board) issued a Decision and Order (D. & O.) affirming the ALJ’s decision.

   On June 30, 2023, Complainant filed a “Request to Administrative Review

Board for Reconsideration of June 13, 2023, Decision and Order Denying Relief for Darren Kossen” (Req. for Recon.). 3 The Board will reconsider a decision and order only under limited circumstances. These circumstances include whether the movant has demonstrated: (i) material differences in fact or law from those presented to the Board of which the moving party could not have known through reasonable diligence, (ii) new material facts that occurred after the Board’s decision, (iii) a change in the law after the Board’s decision, or (iv) failure to consider material facts presented to the Board before its decision. 4

   Complainant’s Req. for Recon. does not satisfy any of these requirements.

Complainant argues that the Board erred by not conducting a hearing on his complaint; 5 however, the Board does not conduct hearings on AIR 21 complaints. Complainant is also mistaken that, because he engaged in activity protected by AIR 21, he acquired “immunity from termination.” 6

 Complainant argues that we should reverse our ruling because Respondent

committed various violations of law, destroyed evidence, falsified documents, and

3 Respondent submitted a “Response in Opposition to Complainant’s Motion for Reconsideration of the Board’s June 13, 2023, Decision and Order” on July 6, 2023. 4 Perkins v. Cavicchio Greenhouses, Inc., ARB No. 2022-0018, ALJ No. 2019-ACA- 00005, slip op. at 2 (ARB Dec. 16, 2022) (Order Denying Reconsideration) (citing Trivedi v. Gen. Elec., ARB No. 2022-0026, ALJ No. 2022-SOX-00005, slip op. at 2-3 (ARB Oct. 28, 2022) (Order Denying Reconsideration)). 5 Req. for Recon. at 38 (“[T]he ARB did not afford Kossen a De nuevo [sic] hearing contrary to applicable law . . . .”). 6 Id. at 46 (“Darren proves he is a whistleblower, but Empire stated it would have fired Kossen anyways after the investigation of events. This is a false statement, and categorically false, Kossen filed an ASAP report, and this gives Kossen immunity from termination under every FAA ASAP program and is federal law.”); see Guay v. Burford’s Tree Surgeon’s, Inc., ARB No. 2006-0131, ALJ No. 2005-STA-00045, slip op. at 9 (ARB June 30, 2008) (“A complainant is not automatically immune to adverse action after engaging in protected activity.”) (citing Clement v. Milwaukee Transp. Serv., ARB No. 2002-0025, ALJ No. 2001-STA-00006 (ARB Aug. 29, 2003); other citations omitted). 3

operated unsafe aircraft. 7 But none of these assertions describe facts material to Respondent’s reason for terminating Complainant’s employment. Complainant alleges Respondent blacklisted him, but Complainant did not develop this blacklisting claim as an alleged adverse action before the ALJ or the ARB. 8

   Complainant repeats his assertion that, when he spoke to Jake Russack

(Russack), Respondent’s Director of Operational Support, on March 5, 2019, he threatened to report Respondent to the Federal Aviation Administration. 9 Russack denied that Complainant made that threat during the conversation, and the ALJ found Russack’s denial of this exchange more credible than Complainant’s assertion. 10

   Complainant states that Respondent improperly referred to his Pilot Records

Improvement Act of 1996 (PRIA) records when it terminated his employment. 11 And he again presents documents that, according to him, were wrongfully excluded by the ALJ. 12 But, as we held in our D. & O., Complainant does not explain how the alleged PRIA violations or additional documents relate to the March 2019 conversations that led to his discharge. 13 For the same reasons we found this allegation unpersuasive in our D. & O., we continue to find it so.

  Substantial evidence supported the ALJ’s conclusion that Respondent

discharged Complainant in response to his lack of competency and ability as a pilot in command as well as his lapses in judgment, including his unprofessional attitude and continued failure to accept responsibility for his actions. Based on the substantial evidence identified in the record and in the D. & O., Respondent had serious concerns about allowing Complainant to continue working as a pilot. 14

7 See, e.g., Req. for Recon. at 3, 9, 11, 16-17, 42 (violations of law); 5, 35 (evidence hidden or destroyed); 6, 12 (falsification of documents); 6, 8, 15, 32 (unsafe aircraft). 8 See, e.g., id. at 12, 24, 36. 9 Id. at 5, 10. 10 D. & O. at 7. 11 See, e.g., Req. for Recon. at 54-59. 12 Id. at 7-8. 13 See D. & O. at 10, 11-12. 14 Id. at 4, 8-9. 4

Nothing in the Req. for Recon. indicates that we should reverse the ALJ’s findings. Accordingly, we DENY Complainant’s Req. for Recon. in its entirety.

  SO ORDERED.




                                   __________________________________________
                                   TAMMY L. PUST
                                   Administrative Appeals Judge


                                   __________________________________________
                                   THOMAS H. BURRELL
                                   Administrative Appeals Judge


                                   __________________________________________
                                   IVEY S. WARREN
                                   Administrative Appeals Judge