Decisions of the Administrative Review Board
- Speegle v. Stone & Webster Construction, Inc. , ARB No. 11-29-A, ALJ No. 2005-ERA-6 (ARB Jan. 31, 2013)
Final Decision and Order on Remand PDF
[Nuclear and Environmental Whistleblower Digest XI A 2 a]
CAUSATION; CONTRIBUTING FACTOR SHOWN IF PROTECTED ACTIVITY IS GIVEN ANY WEIGHT BY THE RESPONDENT AS THE BASIS FOR ADVERSE ACTION; PROFANITY THAT IS INEXTRICABLY INTERTWINED WITH PROTECTED ACTIVITY
In Speegle v. Stone & Webster Construction, Inc. , ARB No. 11-29-A, ALJ No. 2005-ERA-6 (ARB Jan. 31, 2013), the Complainant, a journeyman painter, engaged in protected activity when he made safety complaints about the certification of apprentice painters for application of protective paint coatings in the Torus area of TVA nuclear plants. In order to effect use of apprentice painters, it was necessary to have TVA approve a change in terminology in its General Engineering Specification manual (�G-55�). The Complainant complained at several safety meetings that apprentices lacked the experience to safely apply the coatings. At a safety meeting in which the Complainant's supervisor had the amended G-55 language read, the Complainant told his supervisor that �management can take that G-55� and 'shove it up their ass.� The Complainant was then suspended and later terminated for insubordination.
The ALJ determined that the Complainant failed to show that the protected activity was a contributing factor in the Respondent's decision to suspend or terminate the Complainant's employment. The ARB reversed, and an appeal was taken to the 11th Circuit. The Court of Appeals remanded, finding that the ARB failed to use a substantial evidence standard of review of the ALJ's factual findings.
On remand, the ARB found that the ALJ's contributing factor analysis was in error. The ALJ had determined that the supervisor's testimony that the Complainant's history of raising complaints about the G-55 influenced his interpretation of the Complainant's 'shove it� remark, did not implicate a causal relationship because the supervisor was not, according to the ALJ, disallowed from considering the Complainant's complaints in discerning the context of the Complainant's insubordinate act.
The ARB found that the ALJ's analysis of the context of causation was error, placing an excessive burden on the Complainant. The ARB stated that �Contrary to the ALJ's holding, the contributing factor proscribes that protected activity be given �any weight� as a basis for an adverse action.� USDOL/OALJ Reporter at 11 (footnote omitted). The ARB found that while the Complainant's use of the word "ass" at the safety meeting may have been a predominant factor in his suspension and termination, the facts established that the Complainant's protected activity contributed to the termination. The ARB found that the ALJ's summary of the evidence indicates that the Complainant's complaint about the G-55 and the use of apprentice painters in the Torus area was the inherent reason for the profane remark; it was inextricably intertwined with protected activity.
The ARB found meritless the Respondent's argument that �contributing factor� had not been shown because the supervisor was not responsible for firing the Complainant. Although it was the superintendent who authorized the suspension, that authorization was based on the supervisor's account. Moreover, the superintendent admitted that the Complainant was terminated for insubordination (the superintendent's belief that the Complainant would not follow the G-55) rather than the profanity. The ARB noted contradictory testimony indicating that the Complainant's behavior did not reflect an intention not to comply with the G-55, and found that the insubordination was directly tied to the protected safety complaints about the G-55. Because the superintendent was well aware of the protected activity, protected activity contributed to the termination.
The ARB remanded to the ALJ to determine whether the Respondent could show, by clear and convincing evidence, that it would have taken the same action against the Complainant absent the protected activity.
- Tomlinson v. EG&G Defense Materials, Inc. , ARB Nos. 11-024, 11-027, ALJ No. 2009-CAA-8 (ARB Jan. 31, 2013)
Decision and Order of Remand PDF
[Nuclear and Environmental Whistleblower Digest XII A]
PROTECTED ACTIVITY; CAN BE OVERLAP BETWEEN OSH ACT COMPLAINT AND ENVIRONMENTAL WHISTLEBLOWER COMPLAINT; SCOPE OF COVERAGE UNDER SWDA AND CAA; REASONABLENESS OF BELIEF OF VIOLATIONS
In Tomlinson v. EG&G Defense Materials, Inc. , ARB Nos. 11-024, 11-027, ALJ No. 2009-CAA-8 (ARB Jan. 31, 2013), the Complainant was normally assigned as a plasma cutter operator working in a cool-down area of a hazardous waste disposal plant that incinerates chemical weapons for the Army. Plasma cutters were used to disable or destroy the part or munitions after decontamination. In an operation to incinerate and destroy ton containers, workers were exposed to sulfur dioxide. The Complainant was discharged for removing his respirator in the cool-down area to make a telephone call. The Complainant filed a complaint with OSHA under various laws, which before the ALJ were narrowed to alleged violations of the whistleblower provisions of the SWDA, CAA and TSCA. The Complainant alleged four protected acts: (1) complaints about SO 2 emissions in the facility's cool-down room; (2) his testimony in an OSHA investigation; (3) perceptions of the Complainant as a whistleblower; and (4) his status as "about to testify" to OSHA and environmental enforcement officials. The ALJ determined that the Complainant failed to prove that the activities he alleged were protected by the whistleblower provisions of the SWDA, CAA, or TSCA. On appeal, the ARB addressed whether the Complainant's reports to his employer of SO 2 emissions were protected under the SWDA and the CAA, and found that they were. The ARB did not reach coverage under the TSCA, but suggested in a footnote that there would be coverage under that law as well.
Fact that complaints related to OSH Act does not preclude coverage under environmental whistleblower laws
As an initial matter, the ARB observed that the fact that the concerns the Complainant raised related to workplace conditions covered under the OSH Act did not preclude a determination that the Complainant reasonably believed that his concerns also related to the environmental acts. It is clear, the ARB stated, that there can be an overlap.
Coverage of Solid Waste Disposal Act
In regard to the SWDA, the ARB first determined whether the Complainant's concerns were within the scope of the law, and found that the Complainant's repeated complaints relating to a SWDA-permitted incineration facility were exactly the kind of disclosures the SWDA whistleblower provision seeks to protect, regardless of whether the employee pursues the interest solely for himself and his co-workers. The ALJ found that the Complainant had not sufficiently linked his complaints to violations of the SWDA/RCRA permit and had not conveyed any belief that the company's disposal process polluted the air, soil, ground water, or surface water. The ARB held that this was too narrow an interpretation of SWDA coverage. The Complainant need not recite a specific law, regulation, or permit requirement to be covered. The ARB held that the Complainant's activity was within the scope of the SWDA because his complaints about SO 2 emissions implicated or touched on issues that the SWDA was enacted to address.
The ARB noted that the SWDA requires that the disposal of hazardous waste "be properly managed in the first instance," 42 U.S.C.A. � 6902(a)(4)-(5), and found that the Complainant's complaints about SO 2 emissions �certainly questioned whether the company was adhering to that obligation� and put the company on notice that it may be violating its SWDA/RCRA permit requirements to expeditiously destroy hazardous chemicals in a manner that does not "threaten the environment or human health." The ARB held that the Complainant �had no obligation to tell company managers that his concern about the incineration process related specifically to environmental pollution.� Moreover, the SWDA identifies "human health," as well as the "environment," as within the scope of protection. And, the ARB held, �occupational health complaints related to SO 2 emissions surrounding the facility's incineration process fall within the scope of SWDA whistleblower protection, as mandated by regulations implementing the Environmental Acts.�
The ARB found that the ALJ also erred in determining that the SWDA covers only "solid waste" and not gaseous fumes. The ARB reviewed the statutory language and legislative history and concluded that 'solid waste under the SWDA is not limited to solid material.�
Reasonableness of belief of SWDA violation
The ARB next reviewed whether the Complainant had a subjectively and objectively reasonable belief of a SWDA violation or that his conduct furthered the SWDA's purposes (which under ARB caselaw need not have been communicated to management or the authorities). The ARB concluded that based on the evidence in the administrative record, the Complainant had a reasonable belief of a SWDA violation, and his complaints to his supervisors concerning SO 2 emissions were activities protected under the Act.
The ARB stated that the "subjective" component of the reasonable belief test is demonstrated by showing that the employee actually believed that the conduct of which he complained constituted a violation of relevant law. In the instant case, the facts showed a reasonable subjective belief of a SWDA violation: the facility where the Complainant worked was involved in incinerating the Army's stockpile of chemical weapons, a process that risked exposing its employees to hazardous waste. More specifically, the process of incinerating and destroying ton containers at the site exposed workers to SO 2 as a result of burning chemical agent residue. In addition, the Complainant's complaints contributed to the company's efforts to improve the ventilation system in the cool-down area; the Complainant was involved in OSHA's investigation of the SO 2 emissions; the Complainant testified to the adverse physical effects he felt were due to the SO 2 exposure at work, and his concern about his personal and co-workers� health and safety, and his belief that the Respondent was not doing enough to protect employees.
The ARB stated that an objective reasonable belief is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the complainant. The ARB found that the record supported a finding that the Complainant had an objectively reasonable belief because (1) his complaints concerning SO 2 emissions involved a plant permitted under the SWDA, and (2) it is commonly known that SO 2 has significant adverse health effects.
Coverage of Clean Air Act; sufficient that complainant's concerns touch on the pollution concerns addressed by the CAA
The ARB next turned to the scope of the CAA, noting that the ALJ had found that the Complainant's activity was not covered because he did not complain that SO 2 was seeping into the ambient air outside of the cool-down area. The ARB determined that this was error because under its caselaw, the Complainant did not need to show that he conveyed to his employer a reasonable belief that SO 2 was seeping into the ambient (or outdoor) air for his whistleblower claim to survive under the CAA. Rather, under the CAA and the other environmental acts, a complaint related to air quality that touches on concerns for public health and the environment can be sufficient. In the instant case there was evidence that the Complainant's concerns touched on the pollution concerns addressed by the CAA. The Complainant alleged in his complaint that he spoke to OSHA investigators and conveyed material facts about releases and potential releases of hazardous waste and hazardous constituents into the environment. Moreover, there was evidence that supervisors were aware that at least some of the SO 2 fumes may have been released into the ambient air through roof vents, and that a fan was installed to try to draw the SO 2 to the top of building and throw it out. Moreover, the ARB found that even if the Complainant had not specifically conveyed his concerns about the SO 2 fumes escaping into the ambient air, his complaints contributed to modification of the company's CAA permit in an attempt to alleviate SO 2 exposure to its employees. This was participation in an �action to carry out the purposes of the Act.� 42 U.S.C.A. � 7622(a)(1) & (3).
Reasonableness of belief of CAA violation; release into ambient air not necessarily required
The ALJ determined that the Complainant failed to show a reasonable belief of a CAA violation because there was no proof that the Complainant believed that SO 2 escaped from the plant into the ambient air. The ARB found that this was error. The ARB noted that in Knox v. U.S. Dept. of Labor , 434 F.3d 721 (4th Cir. 2006), the court observed that in proving a whistleblower violation under the CAA, an employee can, "depending on the circumstances . . . reasonably believe his employer was violating the CAA, even if no release into the ambient air occurred." Knox , 434 F.3d at 724 n.3. Thus, under Knox , the Complainant did not need to prove a reasonable belief that SO 2 escaped into the ambient air. In the instant case, the ARB found instead that the Complainant's complaints about SO 2 emissions at the plant, coupled with the physical effects that the emissions had on him and his colleagues as part of an investigation of complaints that could affect the company's CAA permit issued by State officials, could establish a reasonable (subjective and objective) belief of a CAA violation.
The ARB found that the Complainant showed a subjectively reasonable belief of a violation based on his testimony and that of his co-workers as to the physical effects he and they felt from working in the cool-down area. The ARB found that the subjective reasonableness of this belief of a CAA violation was not diminished because he did not tell managers that the toxic air in the cool-down area was escaping into the ambient air outside the building.
The ARB found that the Complainant's complaints were also objectively reasonable because the complaints related not only to safety concerns involving air quality that the CAA addresses, but also the company's CAA permitting process for the facility.
Finally, the ARB found even if the Complainant did not expressly state concerns about the SO 2 fumes escaping from the roof vent and the doors, it was undisputed that his complaints contributed to the company's decision to seek an amendment to its CAA permit with the State to add ventilation to the cool-down area.
- Van v. Portneuf Medical Center , ARB Nos. 11-028, 12-043, ALJ No. 2007-AIR-2 (ARB Jan. 31, 2013)
Final Decision and Order PDF
PROTECTED ACTIVITY; REASONABLE BELIEF STANDARD; SAFETY COMPLAINTS ABOUT PILOTS� FAILURE TO PROPERLY TREAT ACCUMULATIONS OF ICE, SNOW, AND FROST ON EMERGENCY HELICOPTER FOUND TO FALL WITHIN THE SCOPE OF AIR 21 PROTECTED ACTIVITY, AS IT WAS RELATED TO A FAA REGULATION
In Van v. Portneuf Medical Center , ARB Nos. 11-028, 12-043, ALJ No. 2007-AIR-2 (ARB Jan. 31, 2013), the Complainant was the Chief Helicopter Mechanic for the Respondent, a medical center. After two serious accidents involving emergency medical helicopters operating in winter weather, the Complainant developed a heightened safety conscious. Following an incident in which a helicopter took off with ice or frost on the rotors in apparent violation of FAA regulations, the Complainant recommended a cold weather policy to avoid future incidents. The company adopted the recommended policy. Subsequently, the Complainant discovered that a helicopter's rotor blades had not been properly de-iced prior to placement of blade covers in violation of the cold weather policy. The Complainant began emailing concerns and suggestions to management. A pilot confronted the Complainant about the emails. The Respondent adopted some of the Complainant's recommendations for changing the cold weather policy. Complainant stated at a leadership meeting that one pilot had erroneously claimed that the incident immediately leading to the adoption of the policy had only involved frost. This statement by the Complainant was viewed by the Director of Operations as an attempt to undermine morale. The Complainant emailed program staff safety concerns he wanted to address during a special safety meeting. The meeting was cancelled. A meeting to discuss the Complainant's confrontation with a pilot about the emails turned contentious. The human resources department became concerned about the level of dysfunction that existed between the Complainant and other program members, and following interviews with staff, recommended that the Complainant be discharged. Eventually the Complainant was fired due to his �inability to maintain positive interpersonal relations.�
Following a hearing, the ALJ issued a decision in favor of the Complainant, which the ARB found to be well reasoned and well supported.
The Respondent contended on appeal that the Complainant had no reasonable belief of an FAA violation because there was no evidence that any pilot actually took off or flew with frost, ice or snow adhering to the helicopter rotor blades, and that it is not a violation of FAA regulations for a helicopter to merely sit on the ground with frost, ice or snow on it. The ARB found the contention meritless. The Complainant, the ARB ruled, was not required to prove an actual violation of a law or regulation related to air safety, but only a reasonable belief that his safety concern was valid. The Complainant must show that he "subjectively believed that his employer was engaged in unlawful practices and his belief must be objectively reasonable in light of the facts and record presented." The ARB noted that the ALJ found that the Complainant's safety complaints to his managers about the pilot's failure to properly treat accumulations of ice, snow, and frost on the emergency helicopter fell within the scope of AIR 21 protected activity, as it related to FAA regulation 14 C.F.R. § 135.227(a), which prohibits operation of an aircraft with "frost, ice, or snow adhering to any rotor blade." The ARB also noted that, in any event, the ALJ found that the evidence established that, more likely than not, a pilot had taken off with ice on the rotor blades. Although the Respondent argued that the Complainant's concerns centered on management and policy issues, and not safety, the ARB noted that the ALJ expressly rejected that argument and found that the Complainant's concerns were for the safety of the entire program crew.
EQUITABLE RELIEF; AUTHORITY OF ALJ TO ORDER POSTING OF HIS DECISION IN THE RESPONDENT�S OFFICES
In Van v. Portneuf Medical Center , ARB Nos. 11-028, 12-043, ALJ No. 2007-AIR-2 (ARB Jan. 31, 2013), the ALJ ordered the Respondent to provide certain monetary and equitable relief to the Complainant, who was the Chief Helicopter Mechanic for the Respondent, and who had been fired in violation of AIR21 after raising concerns about cold weather safety operations. The Respondent did not petition for review of the monetary award, but argued that the ALJ's order requiring posting of his decision in the Respondent's offices was an abuse of discretion because the AIR21 regulations do not authorize such an order. The ARB disagreed, holding that this was a common remedy in discrimination cases. The ARB also indicated that it was within the ALJ's discretion to order the Respondent to deliver a copy of the ALJ's 97 page decision directly to its employees, and that although this might be a burden, it was available electronically from the OALJ website and could be provided in that format by email or other means.
- Shactman v. Helicopters, Inc. , ARB No. 11-049, ALJ No. 2010-AIR-4 (ARB Jan. 25, 2013)
Final Decision and Order PDF
PROTECTED ACTIVITY; WORK REFUSAL AND REITERATING SAME COMPLAINTS AFTER EARLIER COMPLAINTS HAD BEEN SUFFICIENTLY RESOLVED FOUND NOT TO BE OBJECTIVELY REASONABLE AND NOT PROTECTED ACTIVITY UNDER AIR21
In Shactman v. Helicopters, Inc. , ARB No. 11-049, ALJ No. 2010-AIR-4 (ARB Jan. 25, 2013), the Complainant's protected whistleblower concerns all related to another pilot. The ALJ found that the Respondent sufficiently addressed all of the Complainant's concerns, and that the Complainant's subsequent refusal to fly with that other pilot was not objectively reasonable as that refusal rested entirely on the same complaints he had previously raised. Consequently, given the Respondent's previous communications with the Complainant, the ALJ found that the Complainant's refusal was unreasonable and not protected whistleblower activity. The Complainant produced no evidence of any safety incidents involving the other pilot between the date the Respondent had sufficiently addressed the prior concerns and the Complainant's termination. The ALJ also found that the Complainant's FAA complaint during that gap of time was objectively unreasonable and not protected activity because it merely repeated the previously resolved complaints. The ALJ credited the Respondent's reasons for terminating the Complainant's employment, including claims of misconduct and a �confrontational attitude and poor working relationship with co-workers.� The ALJ specifically found that the Complainant's safety complaints had not factored into the decision to terminate his employment, and that the Complainant failed to establish that any protected activity was a contributing factor in his termination. The ARB found that substantial evidence supported the ALJ essential factual findings and summarily affirmed the ALJ's Decision and Order dismissing the complaint.
- Ocean Shipholdings, Inc. , ARB No. 11-066, ALJ No. 2011-CBV-1 (ARB Jan. 23, 2013)
Final Decision and Order PDF
DEPARTMENT OF LABOR LACKS JURISDICTION TO CONDUCT SUBSTANTIAL VARIANCE HEARING UNDER THE SERVICE CONTRACT ACT ON A CONTRACT TO OPERATE A SHIP OUTSIDE U.S. TERRITORIAL WATERS; FACT THAT BIDDERS HAD TO PAY AT LEAST WAGE HOUR DIVISION�S WAGE DETERMINATION DID NOT CREATE JURISDICTION
In Ocean Shipholdings, Inc. , ARB No. 11-066, ALJ No. 2011-CBV-1 (ARB Jan. 23, 2013), the Military Sealift Command (MSC) issued a request for proposals (RFP) for the operation and maintenance of tanker ship. The Wage and Hour received a request for a substantial variance hearing on the RFP from a union that represents mariners on U.S-flagged vessels. MSC issued an amendment indicating that the Service Contract Act (SCA) was not applicable to the RFP because the ship was to be forward deployed for the entire contract period. MSC also announced that although SCA compliance was not applicable to the contract, RFP offerors would be required to pay at a minimum the wage and fringe benefit rates contained in the Department of Labor Wage Determinations attached to the RFP. Wage and Hour denied the union's request for a substantial variance hearing as untimely, and the union submitted a second request, which was referred to OALJ for a hearing. During a telephone conference call with the ALJ, the bidder who was awarded the contract raised the issue of the SCA's applicability and DOL's jurisdiction to conduct the substantial variance hearing. Following briefing by the parties, the ALJ concluded that the SCA did not apply to the RFP because the work under the contract would be performed outside the United States. The ARB affirmed.
The ARB cited the SCA statutory language, and the implementing regulation at 29 C.F.R. § 4.112(a). That regulation provides that �Services to be performed exclusively on a vessel operating in international waters outside the geographic areas named in this paragraph would not be services furnished �in the United States' within the meaning of the Act.� The ARB further found that the union had not adequately refuted the contractor's assertion that the SCA does not govern the RFP. The union did not contest the contractor's statements before the ALJ that the tanker in question would not be providing services within the United States. Rather, the union relied on an argument that the SCA applied because the parties agreed to apply SCA wages to the contract. The ARB found, however, that the contractor incorporated a wage determination into the RFP to establish a minimum level of wages successful bidders would be expected to pay to workers. The ARB stated that the parties �may agree to pay SCA-level wages, but SCA coverage applies only as described in the statute (41 U.S.C.A. 6701(d)), and the implementing regulations (29 C.F.R. 4.112(a)).� USDOL/OALJ Reporter at 5 (footnote omitted). The ARB was not persuaded by the union's arguments that the RFP was a successor contract and that the tanker in question had been within U.S. territorial waters during the performance of the contract.
- Onysko v. State of Utah, Dept. of Environmental Quality , ARB No. 11-023, ALJ No. 2009-SDW-4 (ARB Jan. 23, 2013)
Final Decision and Order PDF
[Nuclear and Environmental Digest XI A 2 a]
[Nuclear and Environmental Digest XI B 2 b ii]
CAUSATION; MOTIVATING FACTOR FOUND NOT TO BE ESTABLISHED WHERE SUBSTANTIAL EVIDENCE SHOWED THAT THE COMPLAINANT�S PROTECTED ACTIVITY WAS NOT PARTICULARLY TROUBLING TO THE RESPONDENT AND THAT THE RESPONDENT�S ACTIONS WERE MOTIVATED BY THE COMPLAINANT�S UNSUCCESSFUL PERFORMANCE AS A MANAGER
Under the whistleblower provision of the Safe Drinking Water Act, a complainant must prove that protected activity was a "motivating" factor rather such activity was a "contributing" factor. This requires a stronger showing by the complainant. In Onysko v. State of Utah, Dept. of Environmental Quality , ARB No. 11-023, ALJ No. 2009-SDW-4 (ARB Jan. 23, 2013), the ARB found that the ALJ did not commit reversible error in rejecting the Complainant's claim under the SDWA that his protected activities were motivating or substantial factors in the Respondent's unfavorable employment actions. The Complainant presented circumstantial evidence in attempting to prove that whistleblower discrimination motivated the Respondent. He attempted to show temporal proximity, procedural irregularities, early termination of a probationary promotion, and interpersonal conflicts among the parties. The ARB found, however, that while the Complainant's evidence pointed to protected activity, it was not clear that it was particularly troubling to the Respondent, making his whistleblower claim less persuasive. The ARB also found that substantial evidence, which the ALJ believed, supported the Respondent's stated reasons for its actions. Those reasons related to the Complainant's unsuccessful performance as Engineering Section Manager rather than protected activity. The ARB found that �the record as a whole reveals that the relevant periods � involved many diverse and separate events and individuals that [the Complainant] attempts to connect unsuccessfully with the singular thread of whistleblower discrimination.�
- Klosterman v. E.J. Davies, Inc. , ARB No. 12-035, ALJ No. 2007-STA-19 (ARB Jan. 9, 2013)
Erratum correcting the ARB Case Number shown in the caption, and reissuing Dec. 18, 2012 Decision and Order of Remand.
Significant Administrative Law Judge Decision
- Dos Santos v. Delta Airlines, Inc. , 2012-AIR-20 (ALJ Jan. 11, 2013)
Order Denying Respondent's Motion to Dismiss PDF |
U.S. CITIZEN STATIONED IN FRANCE; ALJ FINDS THAT BECAUSE KEY ELEMENTS OF COMPLAINT DEMONSTRATED A SUBSTANTIAL CONNECTION WITH THE U.S. DOMESTIC AVIATION SYSTEM, THE COMPLAINT WAS A TERRITORIAL CLAIM FOR RELIEF, AND THEREFORE IT WAS NOT NECESSARY TO REACH THE ISSUE OF WHETHER AIR21 WHISTLEBLOWER PROVISION HAS EXTRATERRITORIAL APPLICATION
In Dos Santos v. Delta Airlines, Inc. , 2012-AIR-20 (ALJ Jan. 11, 2013), the Complainant was a U.S. citizen working as an aircraft maintenance technician at Charles de Gaulle airport in Paris, France. He filed an AIR21 whistleblower complaint, and an amended complaint, alleging that he suffered a hostile work environment and was denied numerous promotions in retaliation for reporting to his employer and the FAA that his supervisor had falsified FAA safety clearance documents. Before the ALJ, the Respondent filed a motion to dismiss on the ground that the AIR21 whistleblower provision does not apply extraterritorially to employees employed outside the U.S.
The ALJ noted that the issue of the issue of whether AIR21's whistleblower provision protects employees of a covered air carrier when they are stationed outside the territorial United States is a question of first impression. The ALJ found that the parties appeared to agree that the two-part test announced in Morrison v. National Australian Bank, Ltd. , 130 S. Ct. 2869 (2010) applied: (1) does the statutory provision reach extraterritorial claims? (2) given the facts alleged, is extraterritorial application of the statute required to enforce the complaint? The ALJ reviewed Morrison and the subsequent application of that standard, and found particularly instructive the ARB's decision in Villanueva v. Core Laboratories, NV , ARB No. 09-108, ALJ No. 2009-SOX-6 (ARB Dec. 22, 2011) ( en banc ), in which the ARB reordered the analysis and adopted a multifactor approach to the second Morrison step. The ALJ, following the Villanueva method of applying the Morrison test, found that the Complainant's complaint falls within the focus of AIR21 as a whole and Section 42121 specifically, and that enforcement of the complaint does not require extraterritorial application of the statute.
The ALJ, looking to statutory sources, found that the general focus of AIR21 is to ensure the safety of the air traveling public by strengthening the United States' aviation system. Moreover, the legislative history both supported that the general focus of AIR21 is to bring about fundamental improvements in air safety, and that Congress intended to achieve that goal by regulating the air carriers that operate within the domestic aviation system and under the purview of FAA regulations. In regard to Section 42121's purpose, the ALJ found it is not primarily a "labor law," but rather as a means for incentivizing airline employees to speak up when they observe violations of Federal aviation safety laws. The ALJ concluded:
Upon review of the factors identified in Villanueva and assuming all facts asserted by Complainant to be true, I find that the instant complaint alleges a claim that falls squarely within both focuses of congressional concern, and therefore the complaint can be enforced without applying Section 42121 extraterritorially. The instant complaint concerns an employee of a U.S.-based air carrier that is subject to FAA regulations who reported to the FAA and company officials that his manager violated Federal aviation safety laws by fraudulently clearing aircraft as safe for air travel. Other than the location of the employee's position, each key element of Complainant's complaint has significant interaction with the United States aviation system, and, heedful of Section 42121's role as a means for safeguarding the U.S. aviation system, it is clear that circumstances of the complaint place it within the scope of claims that Congress intended to enforce.
Slip op. at 26. In regard to the location of the protected activity and the underlying violation, the ALJ found that although some of the recipients of the Complainant's protected communications were located in Europe, several others, including the FAA and the Respondent's safety and compliance department, were located in the U.S. Although the complained of conduct (falsification of aircraft release forms) occurred abroad, those actions directly implicated Federal aviation safety regulations. Those actions put the Respondent in violation of an FAA regulation and presented a potential safety hazard for any U.S. passengers and for persons near the path of the aircraft as it entered U.S. airspace upon returning from France.
In regard to the location of the retaliatory actions, the complaint alleged that the denials of the Complainant's promotion applications were made by officials of the Respondent based in the U.S. The harassment that allegedly occurred at Charles de Gaulle airport was repeatedly reported to officials both at the airport and in the U.S. The ALJ rejected the Respondent's contention that the place where the adverse action impacts or affects the employee is where the adverse action occurs, and found that an adverse action occurs where the employer makes the decision to take the action.
In regard to the location of the employer and employee, the ALJ found that "[n]either the location of the employee's job, nor the location of the employer, is conclusive of the territoriality of this complaint, because � Section 42121 is not chiefly a labor law." Slip op. at 28. The ALJ explained:
In contrast to Title VII � , Section 42121 is not principally focused on regulating labor relationships, standards or conditions, and to the extent that AIR21 exhibits a domestic focus, it is the domestic aviation system (and the actors within it) that are the objects of the statute's solicitude. Consequently, because Section 42121's regulation of employment relationships is a secondary means for achieving the statute's primary ends, the physical locations of the employee and the employer are relevant, but not determinative, factors. Their value in my analysis depends on the extent that they evidence whether the instant complaint falls within or outside the focus of congressional concern in enacting AIR21 and Section 42121. And, as explained fully above, the primary focus of AIR21 is safeguarding the United States' aviation system, while Section 42121 furthers this purpose by strengthening airlines' compliance with Federal aviation safety laws by incentivizing airline employees to speak out when evidence of violations arise. So while it is relevant that Complainant worked and observed violations of Federal Aviation Administration safety laws and regulations at an overseas location, it is even more relevant that Complainant works for, and reported the legal failings of, a major American air carrier that is a key participant in the American aviation system. It is significant that Respondent is, and Complainant is an employee of, a U.S.-based, FAA-certified air carrier under 14 C.F.R Part 121, the activities of which are subject to Federal aviation safety regulations, and whose compliance with said regulations is the very reason Congress enacted Section 42121.
Slip op. at 28-29 (footnote omitted).
Because the ALJ found that enforcement of the instant complaint did not require extraterritorial application of Section 42121, he found that he did not need to assess whether Section 42121 extends to extraterritorial claims.