Kossen v. Asia Pacific Airlines, ARB No. 2021-0012, ALJ No. 2019-AIR-00011 (ARB Aug. 26, 2021) (per curiam)

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. 2021-0012

COMPLAINANT, ALJ CASE NO. 2019-AIR-00011

v. DATE: August 26, 2021

ASIA PACIFIC AIRLINES,

RESPONDENT.

Appearances:

For the Complainant:

William C. Budigan, Esq.; Budigan Law Firm; Seattle, Washington

For the Respondent:

Steven P. Pixley, Esq.; Tan Holdings Corporation Legal Department;

Saipan, Northern Mariana Islands

Before: James D. McGinley, Chief Administrative Appeals Judge; Thomas

H. Burrell and Randel K. Johnson, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. Darren Kossen (Complainant) filed a complaint under the

Wendell F. Ford Aviation Investment and Reform Act for the 21st Century

(AIR

21), and its implementing regulations,

alleging that his former employer, Asia

Pacific Airlines (Respondent), unlawfully discriminated against him under the AIR

49 U.S.C. § 42121 (2000).

29 C.F.R. Part 1979 (2020).

21’s whistleblower protection provisions.

After a hearing, an Administrative Law

Judge (ALJ) found that Complainant failed to prove that Respondent had violated

the AIR and denied the complaint. Complainant appealed the ALJ’s decision to the

Administrative Review Board (Board). We affirm.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the Board the authority to issue

agency decisions in this matter.

In AIR 21 cases, the ARB reviews questions of law

presented on appeal de novo but is bound by the ALJ’s factual findings as long as

they are supported by substantial evidence.

Substantial evidence means “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.”

DISCUSSION

Complainant presents two overall objections to the ALJ’s decision below.

First, Complainant seemingly argues that substantial evidence does not support the

ALJ’s findings that Complainant failed to prove by a preponderance of the evidence

that Respondent committed adverse actions against him, and that an intervening

event separated his protected activity from any alleged adverse action. Second,

To prove discrimination under AIR 21, the complainant must demonstrate,

by a preponderance of the evidence, that: (1) he or she engaged in activity protected under

AIR 21; (2) he or she suffered an adverse personnel action; and (3) his or her protected

activity was a contributing factor in the adverse action. Sewade v. Halo-Flight, Inc., ARB

No. 2013-0098, ALJ No. 2013-AIR-00009, slip op. at 6 (ARB Feb. 13, 2015). If the

complainant meets their burden, the respondent may avoid liability if it proves by clear and

convincing evidence that it would have taken the same adverse action in the absence of the

complainant’s protected activity. Antonellis v. Republic Airways, ARB No. 2019-0046,

ALJ No. 2018-AIR-00024, slip op. at 5 (ARB Feb. 8, 2021).

29 C.F.R. § 1979.110(a).

Yates v. Superior Air Charter, LLC, ARB No. 2017-0061, ALJ No. 2015-

AIR-00028, slip op. at 4 (ARB Sept. 26, 2019).

Hoffman v. NetJets Aviation, Inc., ARB No. 2009-0021, ALJ No. 2007-AIR-

00007, slip op. at 4 (ARB Mar. 24, 2011).

Complainant contests the ALJ’s decision to exclude certain exhibits presented by

Complainant, and requests that the Board reopen the record.

Upon review of the ALJ’s Decision and Order Denying Complaint and the

parties’ briefs, we conclude that it is a well reasoned ruling based on the facts and

the applicable law. The ALJ’s finding that Respondent did not commit an adverse

action against Complainant is supported by substantial evidence. The record and or

sequence of events do not support Complainant’s assertions concerning the failure

to upgrade him to captain, the alleged termination of his employment, or the alleged

blacklisting from future employment. Complainant’s briefings further fail to

persuade the Board that the ALJ erred by excluding certain evidence presented by

Complainant. Thus, we conclude that ALJ properly denied the complaint and deny

Complainant’s request to reopen the record.

Accordingly, we AFFIRM, ADOPT, and ATTACH the ALJ’s Decision and

Order Denying Complaint.

SO ORDERED.

U.S. Department of Labor Office of Administrative Law Judges

90 Seventh Street, Suite 4-800

San Francisco, CA 94103-1516

(415) 625-2200

(415) 625-2201 (FAX)

Issue Date: 09 November 2020

CASE NO.: 2019-AIR-00011

In the Matter of:

DARREN KOSSEN,

Complainant

vs.

ASIA PACIFIC AIRLINES,

Respondent

APPEARANCES:

WILLIAM C. BUDIGAN, Esq.,

For the Complainant

STEVEN P. PIXLEY, Esq.,

For Respondent

Before Christopher Larsen

Administrative Law Judge

DECISION AND ORDER DENYING COMPLAINT

The Complainant, Darren Kossen, brought this action against Asia Pacific

Airlines (“Respondent” or “APA”) under the whistleblower provision of the Wendell

F. Ford Aviation Investment and Reform Act for the 21st Century (“AIR 21” or “the

Act”). The Act, 49 U.S.C.S. § 42121, and the regulations promulgated thereunder,

29 C.F.R. Part 1979, prohibit an air carrier from discriminating against an employ-

ee who reports air carrier safety concerns.

I. PROCEDURAL BACKGROUND

On February 13, 2018, Mr. Kossen filed a whistleblower complaint with the

U.S. Department of Labor, Occupational Safety and Health Administration

(“OSHA”). (RX 1; RX 2.) Respondent received notice of the complaint on February

27, 2018 and submitted a written statement on March 15, 2018. (RX 1.) On Febru-

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ary 1, 2019, OSHA dismissed the complaint. (RX 2.) Mr. Kossen timely requested a

hearing on the matter. (RX 3.)

On August 1, 2019, Respondent submitted its Pre-

Hearing Statement. I held the hearing in this matter in Honolulu, Hawaii, on Feb-

ruary 25-28, 2020. Mr. Kossen and his counsel, William Budigan; Respondent’s

counsel, Steven Pixley; Complainant’s witnesses Brian Dolan, Robert Erik Herrle,

Paul Y. Kobayashi, Jade Tse, and Keith Vermoy; Respondent’s witnesses Richard

Brown, Ralph Freeman, Joseph San Agustin, and Scott Yoder; and Respondent’s

President, Adam Ferguson, all appeared. I gave the parties a full and fair oppor-

tunity to present evidence and argument. I admitted Complainant’s Exhibits (“CX”)

1 through 23, 29, 30, 31, 33 through 36, 40 through 43, 45 through 56, 60 through

63, 65 through 67, 69, 71, 73, 74, 76 through 78, 80, and 82,

and Respondent’s Ex-

hibits (“RX”) 1-11. After the hearing, the parties submitted post-hearing briefs.

The findings and conclusions which follow are based on a complete review of the

entire record, applicable statutory provisions, regulations, and pertinent precedent.

Although not every exhibit in the record is discussed below, I carefully considered

each in arriving at this decision.

II. ISSUES

1. Whether Mr. Kossen engaged in activity protected by AIR 21;

2. Whether Mr. Kossen suffered an adverse personnel action(s);

3. If so, whether Mr. Kossen’s protected activity was a contributing factor in the ad-

verse personnel action(s);

4. Whether Respondent would have taken the same adverse personnel action irre-

spective of Mr. Kossen’s protected activity; and,

5. The damages, if any, to which Mr. Kossen is entitled.

III. EVIDENCE OF RECORD

1. Summary of Record

AIR 21 hearings are conducted under the Rules of Practice and Procedure for

administrative hearings before the Office of Administrative Law Judges, codified at

29 C.F.R. Part 18, subpart A (2015). 29 C.F.R. § 1979.107(a). Formal rules of

evidence do not apply, but Administrative Law Judges (ALJs) must follow rules or

principles designed to assure production of the most probative evidence. 29 C.F.R. §

This filing serves as Complainant’s Pre-hearing Statement.

The confusing sequence is discussed more fully below.

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1979.107(d). The ALJ may exclude evidence that is immaterial, irrelevant, or

unduly repetitious.

Additionally, the ALJ determines the credibility of witnesses, weighs

evidence, draws inferences from evidence, and is not bound to accept the opinion or

theory of any particular witness.

Bank v. Chicago Grain Trimmers Assoc., Inc.

, 390

U.S. 459, 467 (1968),

reh’g denied

, 391 U.S. 929 (1968);

Atlantic Marine, Inc. v.

Bruce

, 661 F.2d 898, 900 (5th Cir. 1981). In weighing testimony, an ALJ may

consider the relationship of the witnesses to the parties, and the witnesses’ interest

in the outcome, demeanor while testifying, and opportunity to observe or acquire

knowledge about the subject matter at issue. An ALJ may also consider the extent

to which the testimony was supported or contradicted by other credible evidence.

Gary v. Chautauqua Airlines

, ARB No. 04-112, ALJ No. 2003-AIR-038, slip op. at 4

(ARB Jan. 31, 2006). Credibility can also “involve more than demeanor. It

apprehends the overall evaluation of testimony in the light of its rationality or

internal consistency and the manner in which it hangs together with other

evidence.”

Carbo v. U.S.

, 314 F.2d 718, 749 (9th Cir. 1963);

see also

Indiana Metal

Prods. v. Nat’l Labor Relations Bd.

, 442 F.2d 46, 52 (7th Cir. 1971). I have based

my credibility findings on a review of the entire record, according due regard to the

demeanor of witnesses who testified before me, the logic of probability, and “the test

of plausibility,” in light of the record as a whole.

Indiana Metal,

442 F.2d at 52.

a. Documentary Evidence

i. Respondent’s Exhibits

Respondent submitted exhibits RX 1 to 11. Complainant stipulated to their

admission. (Hearing Transcript, “HT,” pp. 35-37.) Respondent’s Exhibits included

the deposition testimony of David Seest, the Director of Flight Operations at

TransAir Airlines (RX 7); and Peter Broschet, the Director of Human Resources at

Empire Airlines (RX 8). Finding their testimony consistent, proffered in good faith,

and pertaining to first-hand knowledge and expertise within their respective roles, I

credit their testimony with full evidentiary weight.

ii. Complainant’s Exhibits

I issued a Pre-Hearing Order in this case on April 15, 2019. Under the

Order, the parties were obligated to serve on each other both a witness list and an

exhibit index. The exhibit index was to identify each exhibit, and state what facts

the serving party intended that exhibit to prove (Pre-Hearing Order, pp. 3-4).

Additionally, thirty days before the hearing, the parties were to exchange copies of

the exhibits they intended to introduce at the hearing (Pre-Hearing Order, p. 4).

One of the reasons I issued that order was because under the Rules of Practice and

Procedure, objections to authenticity of documents offered in evidence are waived

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unless made in writing seven days before the hearing. 29 C.F.R. section 18.82,

subsection (d). Exchanging evidence before the hearing also avoids surprise and

saves hearing time. But when I called the hearing to order in Honolulu, I learned

Mr. Kossen had not complied with the pre-hearing order. He had brought to the

hearing a number of documents he had never disclosed to the opposing party.

At the hearing, he withdrew the exhibits he had numbered 24, 25, 26, 27, 28,

30, 32, 37, 38, 39, 44, 57, 58, 59, 64, 68, 70, 72, 75, 79, and 81. Respondent raised no

objection to the remaining exhibits, so I received in evidence Claimant’s Exhibits 1

through 23, 29, 31, 33 through 36, 40 through 43, 45 through 56, 60 through 63, 65

through 67, 69, 71, 73, 74, 76 through 78, 80, and 82. Later in the hearing, I also

received Claimant’s Exhibit 30 in evidence (HT, p. 525). Though this makes for a

more confusing record, the parties and their counsel had traveled to Honolulu from

tremendous distances, and it would have been prohibitively expensive to continue

the hearing so Mr. Kossen could re-organize and disclose his documentary evidence

before the parties assembled in Honolulu a second time.

During the hearing, two additional problems with Mr. Kossen’s documentary

evidence arose. Both are discussed more fully below. First, Mr. Kossen asked

witness Ralph Freeman to identify an email he contended Mr. Freeman had

received, and Mr. Freeman testified he had not seen it before. Second, each party

placed in evidence a copy of a letter Mr. Kossen had written (CX 52 and RX 4), but a

relevant date in the body of that letter was different in each copy.

Over the course of the hearing, Mr. Kossen tried to admit other documents

into evidence. In some cases, he abandoned the effort, and in other cases, I

excluded the proffered document because it had not been authenticated.

Nonetheless, Mr. Kossen submitted many of these documents as exhibits to his

“Post-Hearing Brief Regarding Adverse Actions & Declarations of Service,” received

March 13, 2020 (

see

fn. 14,

infra

But his continuing to file documents excluded

from evidence at the hearing does not make them part of the record of the hearing.

Mr. Kossen’s failure to comply with the Pre-Hearing Order, and the discrepancies

which appeared in some of the documents he offered, made proper authentication

an issue. I did not receive unauthenticated documents in evidence at the hearing,

and I do not receive them in evidence now.

b. Witnesses

i. Keith Vermoy

Among these documents was the purported exchange of emails on December 6 and 7, 2017, with

Mr. Freeman. Mr. Freeman, who had allegedly had received one of the December 7, 2017 e-mails, at

the hearing testified he had never seen it before (HT, pp. 507-08, 677-78). I declined to receive that

document in evidence on the strength of that testimony (

. at 509), and Mr. Kossen did not try to

introduce it through any other witness.

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Keith Vermoy worked at Asia Pacific Airlines as station manager from April,

2014 until May of 2019. (HT, p. 243.) Mr. Vermoy testified to overhearing a

conversation between Adam Ferguson, the President of APA, and Ralph Freeman in

which they decided “they were going to honor [Mr. Kossen’s] two weeks and they

were going to let him go now.”

. at 245. Mr. Vermoy testified he did not

remember when the conversation occurred, but he remembered it was “[w]hen [Mr.

Kossen] was trying to leave to go to another airline.”

. at 246. Mr. Vermoy

testified it was well-known that Mr. Kossen had given his two-week notice and was

leaving APA.

. at 253-54.

Mr. Vermoy also recalled a conversation with Mr. Freeman in which Mr.

Freeman stated APA would not recommend Mr. Kossen to another employer. (HT,

p. 247.) He does not remember when this conversation took place.

. at 257.

When asked if he knew of other pilots whom APA would not recommend to other

potential employers, he testified, “Well, no. I was not privy to a lot of that…”

. at

250. Mr. Vermoy stated that other pilots, in addition to Mr. Kossen, also

complained about safety issues.

. at 249.

Mr. Vermoy voluntarily resigned from APA after being informed he would be

downgraded following a “safety issue.” (HT, p. 248.) He stated, “I’m not bitter

about it . . . but I’d just like to know why I was the only guy . . . that got hammered

over that deal. . ..”

. at 249. Mr. Vermoy appeared at the hearing by subpoena.

. at 253.

Mr. Vermoy’s testimony was consistent and credible, but because of the lack

of detail, only marginally relevant.

ii. Robert Erik Herrle

Robert Erik Herrle worked as first officer at Empire Airlines from January

15, 2017 to January 26, 2019. (HT, pp. 394-95.) He did not fly with Mr. Kossen

while at Empire Airlines.

. at 397. He wasn’t aware of Mr. Kossen having either

a bad or good reputation, but he “had one employee” who did not want to fly with

Mr. Kossen.

. at 397-98. He does not remember the name of that employee.

Mr. Herrle testified Empire Airlines had “[a] lot of maintenance issues that

were unresolved.” (HT, p. 399.) Mr. Herrle defined “stick shaker” and “stick

pusher.”

. at 401-04. He confirmed the occurrence of either in flight would be a

very serious safety event.

. at 413-14. Mr. Herrle was asked to speak about

Respondent’s exhibit, RX 12, in which Mr. Kossen is described as having

experienced a “stick shaker” and “stick pusher” while acting as a captain for a flight

with passengers.

. at 401-407. He testified he had never heard of the incident

reported in RX 12 before the hearing.

. at 412.

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With regard to Mr. Herrle’s testimony pertaining to his own first-hand

experience and knowledge, I find him credible. But for the most part, his testimony

was of little relevance.

iii. Paul Y. Kobayashi

Mr. Kossen hired Paul Kobayashi to testify as an expert witness regarding

potential damages. (HT, p. 424.) In

voir dire

with Respondent’s counsel, Mr.

Kobayashi stated he had never testified as an expert witness before.

. at 423.

Mr. Kobayashi testified to the report, “An Earning Capacity Loss Evaluation,”

which he co-drafted at the request of Mr. Kossen. The report, (CX 50), assesses

damages by determining the estimated lifetime earnings Mr. Kossen would

accumulate as a pilot. Because I ultimately decide Mr. Kossen is not entitled to

relief under AIR 21, Mr. Kobayashi’s testimony is moot.

iv. Ralph Freeman

Ralph Freeman is the Director of Operations at APA. He has worked at APA

for five and a half years. (HT, pp. 452-454.) Throughout his career, he has

supervised over 300 pilots.

. at 454. Mr. Freeman testified at length about his

interactions with Mr. Kossen while at APA; his involvement in the personnel

decision relating to Mr. Kossen’s separation with APA; and his views of Mr.

Kossen’s pilot skills while at APA. The hearing transcript spanned nearly 800

pages. For clarity and efficiency, I discuss the relevant portions of Mr. Freeman’s

testimony in greater detail within the appropriate sections below within headings

numbered 2 to 5.

Mr. Freeman’s testimony was consistent, proffered in good faith, and

pertaining to his first-hand knowledge and expertise within his role as Director of

Operations at APA. Accordingly, I credit his testimony full evidentiary weight.

v. Scott Yoder

Scott Yoder worked at APA from 2006 until 2017. He was a chief pilot with

At the hearing, Respondent objected to Mr. Kobayashi’s inclusion as an expert witness both as to

his qualifications and Mr. Kossen’s non-compliance with the timely disclosure requirements under

the April 15, 2019, Pre-Hearing Order. Respondent raised similar objections in its post-hearing no-

tice requesting to present expert testimony regarding damages and related issues. (“Memorandum

in Support of Motion to Present Post-Hearing Testimony from an Expert Witness” (March 12, 2020).)

On March 16, 2020, Mr. Kossen filed a Response waiving objection to Respondent’s request. On

March 25, 2020, I granted Respondent’s request to retain a damages expert and present testimony

regarding damages. On July 7, 2020, Respondent submitted the expert report of Dr. Jack P. Suy-

derhoud, who found issue with much of Mr. Kobayashi’s testimony. I carefully read and considered

Dr. Suyderhoud’s report. But because I deny this Complaint, I need not weigh the conflicting testi-

mony regarding damages.

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APA for two years. He currently serves as first officer at Hawaiian Airlines. (HT,

p. 523-24.)

Mr. Yoder testified he spoke with Mr. Freeman to discuss whether Mr.

Kossen should be promoted to captain.

. at 529. Mr. Yoder also testified at length

about the qualifications APA considers when promoting to captain; his opinion of

Mr. Kossen’s pilot skills while at APA; and an investigation conducted by the

Federal Aviation Administration (FAA) into several APA pilots’ logbooks. Mr.

Yoder also testified he “never contacted any company regarding Darren Kossen.”

. at 532. Mr. Yoder’s testimony is discussed in further detail within the

applicable sections below.

Mr. Yoder’s testimony was consistent, proffered in good faith, and pertaining

to first-hand knowledge and expertise within his role as chief pilot at APA.

Accordingly, I credit his testimony full evidentiary weight.

vi. Joseph San Agustin

Joseph San Agustin is a captain at APA. (HT, p. 537.) Before working at

APA, Mr. San Agustin was a Marine Corps and naval aviator.

. at 539. He testi-

fied at length about the qualifications necessary for being an effective captain; what

a “stick shaker” and a ‘stick pusher” are, and the effect either in flight would have

on a career; and his personal interactions with Mr. Kossen. All applicable parts of

his testimony are discussed in greater detail within the corresponding sections be-

low.

I found Mr. San Agustin’s demeanor forthright and candid, and his testimony

consistent and pertaining to his own first-hand knowledge and expertise within his

role at APA. I find Mr. San Agustin credible and ascribe his testimony full eviden-

tiary weight.

vii. Adam Ferguson

Adam Ferguson is the President of Asia Pacific Airlines. He has been in this

position for three-and-a-half years. (HT, p. 589.) Before working at APA, Mr.

Ferguson was the Director of Cargo for Asia at Continental Airlines (now United

Airlines).

. at 590. During 2017, Mr. Ferguson was “transform[ing] [APA’s] fleet,”

and, as a result, traveled extensively for work.

. at 591. He testified at length

about APA’s relationship with the FAA; his interactions with Mr. Kossen while at

APA; the process he utilizes when considering whether to upgrade a pilot to captain;

APA’s interactions with the State of Hawaii regarding Mr. Kossen’s application for

unemployment benefits; and his understanding of how Mr. Kossen came to no

longer work at APA. All relevant parts of his testimony are discussed in greater

detail within the corresponding sections below.

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I found Mr. Ferguson’s testimony consistent and credible. Accordingly, I

afford it full evidentiary weight.

viii. Brian Dolan

Brian Dolan testified by telephone from Guam under subpoena from Mr.

Kossen. (HT, p. 663.) Mr. Dolan flies for a “small commuter” airline.

. at 653-

654. He previously worked at APA as a captain and a “check airman, FAA check

airman.”

. at 655. He worked at APA for 14 years until the summer of 2017.

Mr. Dolan has a pending AIR 21 claim with APA, in which he contends APA

discriminated against him because he is Marshallese.

. at 664. Mr. Dolan

testified to his experience as a person who is undergoing AIR 21 litigation.

Specifically, he stated it has been financially and emotionally difficult for him, and

he believes it is difficult for him to find a job because he brought his AIR 21 case.

Mr. Kossen was a witness in Mr. Dolan’s suit against APA.

. at 664.

While I found Mr. Dolan candid and credible, his testimony is not relevant to

the case at hand. First, in this case Mr. Kossen is not seeking damages arising from

his choice to pursue an AIR 21 claim, but rather damages, if any, from APA’s

alleged retaliation against him for his protected activity. Second, Mr. Dolan’s

recounting of his personal experience is not relevant to Mr. Kossen’s experience,

much less of any damages Mr. Kossen has experienced as a result of his protected

activity.

ix. Jade Tse

Jade Tse rented two rooms within her home to Mr. Kossen and his children.

(HT, p. 696.) She does not remember exactly when she rented to him, but she

thinks a year and a half before the hearing.

. Ms. Tse spoke to Mr. Kossen’s

character, including a change in his personality, resulting in her “kick[ing] him

out.”

. at 699. Ms. Tse testified Mr. Kossen paid her $5,000 to care for his two

children for two months while he attended training for a new job out-of-state. She

could not remember the date for when she provided him childcare but recalled it

was after he was “fired” from his job.

. at 702.

Ms. Tse did not remember well the timeline or details of her interactions with

Mr. Kossen. She does not have direct personal knowledge of the circumstances of

Mr. Kossen’s employment, either at APA or elsewhere. As to her verification of the

amount paid to her for childcare, I fully credit her testimony. But her testimony is

of very little relevance to this issues in this case.

x. Richard Brown

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Richard Brown is the Assistant Director of Operations at APA. (HT, p. 715.)

He has worked at APA since 2000.

. at 716. At the time Mr. Kossen was em-

ployed by APA, Mr. Brown was the Director of Safety there.

. at 731. Mr. Brown

testified at length about his interactions with Mr. Kossen; the safety issue reporting

procedure at APA; APA’s interactions with the FAA; and the significance of either a

stick shaker or a stick pusher occurring in flight. All applicable parts of his testimo-

ny are discussed in more detail within the corresponding sections below.

I found Mr. Brown’s testimony consistent and credible, and I afford it full

evidentiary weight.

xi. Darren Kossen

Darren Kossen testified by deposition, RX 11, and in person at the hearing.

His deposition spans 156 pages, and the transcript to his testimony over the three-

day hearing is nearly twice that. I have carefully read and considered the entirety

of the record, and for ease of understanding and efficiency, I discuss Mr. Kossen’s

applicable testimony in detail within the corresponding sections below.

At hearing, Mr. Kossen was not forthright. At times, he became visibly upset

(

see

e.g

., HT, p. 264), and on several occasions he would not directly answer the

question being asked (

see

e.g

. at 294). Much of Mr. Kossen’s testimony was

tangential, run-on, off-topic, or unrelated. In addition, his testimony was often

inconsistent within itself, both at the hearing and when considering his earlier

deposition (discussed in detail within later sections,

infra

). I found Mr. Kossen’s

testimony not only vague and unhelpful, but also at times cagey and evasive. Not

only was he unable to pin down important dates or describe a coherent timeline, it

was also difficult to stay on topic. Several times, he cited injustices he allegedly

experienced that were irrelevant to his complaint, attributing them to APA. For

these reasons, I find his credibility impaired, and afford his testimony less

evidentiary weight, especially when contradicted by the testimony of more credible

witnesses.

2. Employment at Asia Pacific Airlines

Asia Pacific Airlines (“APA”) is an “all-cargo” airline headquartered in the

Territory of Guam. (Respondent’s Brief, “RB,” p. 3.) APA also operates a base in

Honolulu, Hawaii.

. It transports cargo “throughout the vast Pacific Region” and,

in 2016-2017, employed approximately 20 pilots.

Mr. Kossen was hired as a First Officer by APA on or about October 10,

2016.

(HT, pp. 51, 456.) Mr. Kossen testified he hoped to stay at APA “for as long

Mr. Kossen’s “Statement of Complaint” to OSHA lists his first day of employment at APA as Octo-

ber 9, 2016. (RX 1.)

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as possible, as long as I had a medical and as long as I was under 65” (

. at 51), but

also expected to progress in his role at APA by July of 2017:

Mr. Kossen: I wanted to stay at Asia Pacific and also I wanted

to fly – there's always a need to fly a bigger plane.

Always a need. Bigger plane, more money.

Mr. Budigan: Okay. So, tell us about your career progression at

APA?

Mr. Kossen: My career progression was I was flying as first

officer. There's a lot of movement in the company.

I was expecting to be upgraded to captain, as

tradition there, and I stayed as a first officer.

Mr. Budigan: Over what period of time do you think you should

have been a captain?

Mr. Kossen: Between May and July of 2017, they needed to

upgrade, they needed captains to fly around and I

was qualified around that time.

Mr. Budigan: But they didn't make you captain?

Mr. Kossen: No.

. at 52.

Adam Ferguson, the President of APA, testified Mr. Kossen sent him an

email before October, 2017, “formally . . . asking to be put into a captain’s seat.”

(HT, p. 596.) Mr. Ferguson testified a recommendation to promote a first officer to

captain would normally follow from a formal process, often stemming from the Chief

Pilot. Mr. Ferguson found the email request “arrogan[t]” because Mr. Kossen had

“just … one year of service with us.”

Id.

He explained, “For someone to come out

and ask the president of the company – hey, I want to upgrade when I go to

recurrent [training] – I thought was very bold.”

Id.

Mr. Kossen testified he emailed Mr. Ferguson just before October, 2017, and

learned he would not be upgraded to captain soon after. (HT, pp. 281-82.) He

learned he would not be upgraded before he attended the annual training in

October, 2017.

. at 304.

a. Crew Resource Management

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Mr. Kossen believes APA should have upgraded him to captain by July 2017

and that he was “qualified” to be a captain, having reached 1,000 flight time hours.

(HT, p. 52.)

When considering whether to promote a pilot from first officer to captain,

Mr. Ferguson testified he considers “tangible skills,” such as the “1000-hour rule”

pertaining to flight hours, as well as “the intangibles in terms of personality and

traits,” which fall under the concept of Crew Resource Management, or “CRM.”

(HT, p. 596.)

Ralph Freeman, the Director of Operations at APA, testified it is common for

pilots to have thousands of flight hours and still not qualify for captain, potentially

waiting “four or five, six years” for an upgrade. (HT, p. 461.) Mr. Freeman

emphasized the importance of “attitude,” having “a mentoring personality,” and the

ability to communicate well with others in the cockpit when considering candidates

Mr. Ferguson testified he is “solely” responsible for decisions regarding personnel hiring but he also

relies on monthly “operational calls” with Mr. Yoder and Mr. Freeman to inform his personnel deci-

sions. (HT, pp. 613, 610-11.)

To qualify as captain, a pilot must, among other things, have acquired 1,000 hours of flight time.

This “1000-hour rule” formed the basis of Mr. Kossen’s complaint to the FAA and is discussed in

more detail within that section.

Crew Resource Management, or “CRM,” as defined by Joseph San Agustin (HT, pp. 546-47):

Mr. San Agustin: Crew Resource Management, CRM in short, a requirement for any

type of manning, whether it's a three-man crew or a two-man crew,

CRM is applied in all facets of the flight to include proper rest for

crew members, rest/breaks, on an eight-hour flight or more. A cap-

tain has to be relieved of his duties for a bit, to make sure he doesn't

exceed the eight hours. And we, as a crew, in general, crews in gen-

eral need to be aware of that and be cognizant for the issue of safety

and CFR adherence. So, the crew has to generally look at each other,

they have to say, okay, who is going to get out of the seat and who is

going to get in the seat, and who is going to take a break, and it var-

ies and it changes, but that's how it's practiced out there.

Mr. Pixley: So, is it important that the crew members get along and communicate

with each other, so that they can talk to the captain about problems

that might happen or just work together as a team?

Mr. San Agustin: That is critical. That is critical in our business, that communication

be open, is professional and accurate and clear.

- 12 -

for promotion to captain.

He described CRM as “one of the most important things

we look for” when evaluating a potential upgrade.

Id.

at 461-462.

Additionally, Joseph San Agustin, a Captain and Check Airman at APA,

evaluates the flying abilities and capabilities of its pilots. He testified to the

importance of CRM when considering a potential upgrade. Mr. San Agustin has

been a pilot at APA since May, 1999. (HT, p. 542.) At the hearing, he testified:

And then there's a recommendation. There's a recommendation from a

hoard of people who are involved in the upgrade or step-up upgrade.

You get recommendations of other captains, recommendation from a

check airman, recommendations from the Director of Operations, and

most specifically the chief pilot. You really can't – you can't walk in

the door and say – hey, I'm going to be a captain, you have to go

through that like anything else.

. at 544. He also testified it was common for pilots to meet the requirement of

1,000 hours of flight time but not yet be upgraded to captain:

As a matter of fact, I remember when I was 10 years into my active

duty time I heard that there were first officers at Delta Airlines with

17,000 hours, and weren't even in the upgrade syllabus yet. And I was

like – what? But that's the truth, that's the norm.

. Lastly, Mr. San Agustin affirmed the importance of a pilot’s CRM skills when

considering upgrades, describing CRM as “critical.”

Id.

at 547.

Additionally, Scott Yoder, former Chief Pilot of APA, emphasized the

importance of seniority and CRM when considering promotions—“CRM is one of the

key things that we try to look at and keep coordinated.” (HT, p. 525.)

Lastly, Mr. Kossen agreed an airline may consider other criteria, in addition

to flight time hours, such as seniority and CRM, when evaluating the qualifications

for a potential promotion to captain. (HT, pp. 290, 298.) But Mr. Kossen contends

CRM does not include whether pilots get along within the cockpit:

The getting along doesn't matter. It's the crew working as a team. As

long as they're being professional and doing their job, and utilizing

“So, you're in the cockpit – you really need to get along, you need to get along. And this is where

the CRM, this Crew Resource Management, comes into play.” (HT, p. 463.)

Mr. Freeman, as the Director of Operations at APA, provides Mr. Ferguson with performance re-

views of pilots during regular “operational calls.” These calls inform Mr. Ferguson’s personnel deci-

sions.

See

footnote 6,

supra

- 13 -

each other, that's Crew Resource Management. If they get along, fine.

But you're there to do a job, it's a job.

. at 293.

Mr. Kossen testified he had “good CRM” skills while at APA. (HT, p. 301.) In

his post-hearing brief, he argues, “Everybody loved Darren Kossen and he would be

employed for a

[sic]

as long as he wanted and captain if he did not report safety.

Darren Kossen was a model employee, had zero sick calls and flew the most amount

of company flight hours for the year of 2017.” (Complainant’s Brief, “CB,” p. 62.)

In contrast, APA contends Mr. Kossen’s “behavior created CRM issues” and

“he was not competent to be a captain. He lacked skill and he had a bad attitude.”

(RB, pp. 44, 43.) Mr. Yoder testified, “I did not believe that he held those

characteristics to be a captain.”

(HT, p. 527.) And, “[b]y the hours, he was fine,

but by ability, no, he was not ready to be a captain.”

Id.

at 529. Additionally, Mr.

Freeman, who was in charge of scheduling, testified several pilots requested not to

be assigned to fly with Mr. Kossen, including a captain who felt it would be “unsafe”

if Mr. Kossen were in his cockpit and that Mr. Kossen was “stalking” him.

Id.

470, 472. Lastly, Mr. Ferguson, the President of APA, when asked if he would allow

Mr. Kossen to return to APA as a first officer pilot, testified, “The only concern I

would have is the CRM aspect of it and how he would be able to get along with

everybody knowing his circumstance.”

. at 642.

b. Departure from APA

Mr. Kossen learned he would not be upgraded to captain before October,

2017. (HT, p. 304.) He testified he “was happy with [APA], but also wanted to be a

captain,” and applied to Empire Airlines on October 3, 2017.

. at 305. Mr. Kossen

accepted a job offer from Empire Airlines on October 12, 2017. (HT, p. 306; RX 4;

CX 52.) The position at Empire Airlines was Captain, to begin on either December

9, 2017, (RX 4), or January, 13, 2018, (CX 52).

In October, 2017, APA gave Mr. Kossen a pay raise on the anniversary of his

hiring (HT, p. 219).

Mr. Freeman testified Mr. Kossen asked for a leave of absence in December,

before Mr. Freeman received Mr. Kossen’s letter of resignation. (HT, p. 475.) Mr.

Mr. Yoder: “… in order to be captain you have to have certain traits. And pilot judgment is one of

the big ones, flying ability is another big one, and just decision making process and maturity.” (HT,

p. 527.)

Oddly, CX 52 and RX 4 are identical in every respect except one: they show different start dates

with Empire Airlines. No witness attempted to explain why the dates in different copies of the same

documents did not match.

- 14 -

Freeman denied this request, because December is APA’s “heavy” season and APA

policy is to not accommodate leave of absences during December except for

emergencies.

On November 22, 2017, Mr. Kossen gave APA written two-week notice. (HT,

pp. 474-75; RX 5.) In his resignation letter, he reports he has “been offered a

Captain position”; says he leaves with “a heavy heart”; will “miss APA”; and “would

like to thank everyone at [APA] for creating a fun and professional work

environment.” (RX 5.) He gives his last day at APA as December 8, 2017.

After receiving Mr. Kossen’s November 22, 2017 resignation, APA took action

to replace him and Mr. Yoder, hiring two new pilots. (RB, p. 44; HT, p. 609-610.)

On or about December 4, 2017, Mr. Kossen spoke with Mr. Freeman, who Mr.

Kossen contends talked him into rescinding his resignation. (HT, pp. 327-28, 343.)

Mr. Freeman testified he met with Mr. Kossen, but only to discuss Mr. Kossen’s

staying on through December to support APA’s busy season.

Id.

at 476.

Mr. Kossen contends he e-mailed Mr. Freeman and Peter Nutting, the

“[D]irector of [O]perations and [C]hief [P]ilot” at APA, respectively, on December 6,

2017, rescinding his resignation. (CB, pp. 11-12, 37-38; HT, p. 330-31.) But when

he showed what he claimed was a copy of that e-mail to Mr. Freeman, to whom the

alleged e-mail was addressed,

Mr. Freeman testified he had never seen it before:

Judge Larsen: Okay. Did you receive this e-mail from Mr.

Kossen?

Mr. Freeman: I just read it. I don't recall the e-mail, sir.

Judge Larsen: Have you ever seen it before today?

Mr. Freeman: I would have to say I'm seeing this for the first

time.

(HT, pp. 507-08;

see also

HT, p. 68. In

August of 2017, he told the FAA a pilot at Mesa, who had been promoted from first

officer to captain, had in fact not satisfied the 1000-hour rule and should not have

been upgraded. (CX 61, pp. 317-321.) The FAA found no safety violation.

. at

318.

While at APA, Mr. Kossen became aware of an issue with pilots misreporting

their flight times within the logbooks. (HT, pp. 71-74.) On June 13, 2017, Mr.

Kossen emailed the Director of Safety at APA, Richard Brown, asking, “Who is in

charge of calculating upgrade time and verifying the 1000hrs for upgrade?” Mr.

Brown replied, “That’s my job.” (CX 6.)

On July 26, 2017, Mr. Kossen emailed Mr. Brown regarding his concern:

I believe that there is a typo in our manual that will lead/has apa to

upgrade people before meeting a captain qualification of 1000 hrs as a

first officer under far 121.436a and has possibly been misunderstood

by apa…

(CX 11.)

Sometime in the summer or fall of 2017, Mr. Kossen met with Mr. Brown.

(HT, p. 718.) Mr. Brown testified Mr. Kossen had a question about flight time.

Mr. Brown did not consider the conversation to involve a safety complaint.

. APA

uses the “Baldwin” system, which allows people to file safety reports anonymously.

. at 719. APA has utilized the Baldwin reporting system since 2014.

. at 720.

APA pays $2,000 per month for this system.

. at 721. Mr. Kossen received

training on this system.

. at 719. Mr. Kossen did not file a Baldwin safety report

in the summer or fall of 2017. Mr. Brown testified he received no anonymous

Baldwin reports during the year 2017 regarding safety issues.

. at 720.

Sometime in July of 2017, Mr. Kossen met with Mr. Freeman regarding his

concern with misreporting of flight time hours. (HT, pp. 122-123, 490-492.)

Afterward, Mr. Freeman spoke with Mr. Nutting and they “went back to the

resumes” to confirm flight time hours were met.

. at 492.

In October and November of 2017, Mr. Kossen e-mailed Mr. San Agustin

several times regarding this concern. (CX 7, 10.)

In August of 2017, Mr. Kossen contacted the FAA seeking “FAA legal

interpretation of international flight times.” (CX 61.) In the same e-mail chain, Mr.

Kossen identified a pilot from Mesa Airlines whom Mr. Kossen felt did not qualify

- 20 -

under the “1000-hour rule”.

. at 317. Mr. Kossen did not identify APA nor any

APA pilots by name within this e-mail chain.

Sometime in November

or December of 2017, the FAA began an

investigation at APA, asking to see pilots’ logbooks.

(HT, p. 497;

see also

CX 31,

text message, dated December 15, 2017, from Mr. San Agustin to Mr. Kossen: “Dash

The Feds are looking into your concerns about 121 flight time…”.) Mr. Freeman

testified it is common for an official from the FAA to stop by or be in communication

with APA.

. at 498-499. Mr. Freeman was “sure” this investigation was because

“Darren had brought this issue up.”

. at 498. But he did not consider Mr. Kossen

a “whistleblower” – “I was not thinking anything about whistleblower. Am I aware

that the investigation on log books was because of Mr. Kossen, okay. But as far as

whistleblower, that was not in my thought process.”

. at 511. APA experienced

no repercussions following the completion of the FAA investigation.

. at 489. The

FAA asked APA to consider ways to improve its pilot-hiring process.

At the time of separation, Mr. Ferguson testified he was unaware Mr. Kossen

filed a safety complaint with the FAA regarding APA. (HT, p. 615.)

On October 30, 2018, the FAA closed an investigation initiated by a

complaint from Mr. Kossen. The investigation was closed due to Mr. Kossen’s

noncompliance. (CX 8, p. 45.)

On December 12, 2018, the FAA completed its investigation into Mr. Kossen’s

“air carrier safety allegations,” finding a safety violation occurred. (CX 8, p. 44.)

Similarly, on November 2, 2018, the FAA completed an investigation into a “safety

allegation” filed by Mr. Kossen, finding a violation occurred and APA “may have

pilots who have falsified their flight hours.” (CX 9, p. 57.)

5. OSHA Complaint

In his post-hearing brief, Mr. Kossen references various “FAA Hotline Report[s]” allegedly made

during July of 2017, including one that identified pilots Francis Lessett, Dennis Nutting, and

Loveman Calero by name. (CB, p. 17.) But CX 61 shows no helpful identifying information. Pages

322 to 326 appear to be screen shots of submission screens to the FAA Hotline Reporting Form.

There are no corresponding dates, except for one, June 10, 2018 – a date that falls well after Mr.

Kossen’s separation from APA in January, 2018. (CX 61, p. 325.)

Mr. Kossen writes, “On November 24, 2017, I became aware that the FAA was investigating the

safety concerns I brought up to management.” (RX 1.)

The record lacks the specific filing which triggered this investigation. Therefore, the exact date

and contents of the relevant FAA complaint(s) and the precise date of the ensuing FAA investigation

do not appear in the record.

- 21 -

On February 13, 2018, Mr. Kossen filed a whistleblower complaint with

OSHA. (RX 2.) He alleged he “was terminated and blacklisted in retaliation for

bringing up FAA safety violations to company management and for filing a workers

compensation claim.”

. The complaint alleged the adverse action occurred on or

about February 8, 2018.

. On February 1, 2019, the Secretary of Labor found a

violation could not be sustained because Mr. Kossen failed to cooperate in the

investigation.

Mr. Kossen seeks reinstatement or, in the alternative, damages. (CB, p. 63.)

IV. ANALYSIS

The Legal Standard and Burdens of Proof

It is a violation of AIR 21 “for any air carrier or contractor or subcontractor

of an air carrier to intimidate, threaten, restrain, coerce, blacklist, discharge or in

any other manner discriminate against any employee” because the employee has

engaged in protected activity. 29 C.F.R. § 1979.102(b).

Under the Act a complainant engages in protected activity if he:

(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 Feder-

al 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 [49 USCS §§ 40101 et seq.] 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 Admin-

istration or any other provision of Federal law relating to air carrier safety

under this subtitle [49 USCS §§ 40101 et seq.] 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 pro-

ceeding.

49 U.S.C. § 42121(a).

A two-pronged burden-shifting framework applies in whistleblower claims

under AIR 21. 42 U.S.C § 42121(b). The complainant has the initial burden of sat-

isfying the first prong of the two-part test.

Id.

- 22 -

To satisfy the first prong, the complainant must demonstrate, by a prepon-

derance of the evidence, that: (1) he or she engaged in protected activity; (2) the em-

ployer knew of the protected activity; (3) he or she suffered an adverse personnel

action; and (4) his or her protected activity was a contributing factor in the adverse

action. 49 U.S.C. § 42121(b)(2)(B);

Clemmons v. Ameristar Airways, Inc.,

ARB Nos.

05-048, 05-096, ALJ No. 2004-AIR-11 (ARB June 29, 2007). If the complainant

cannot demonstrate each of the four elements, then his or her case is unsuccessful,

and the employer prevails.

If the complainant demonstrates all four elements, the burden shifts to the

employer to show, by clear and convincing evidence, that it would have taken the

same adverse personnel action notwithstanding the protected activity.

Cain v.

BNSF Railway Co.

, ARB No. 13-006, ALJ No. 2012-FRS-019, slip op. at 3 (ARB Sep.

18, 2014).

a. Complainant’s Prima Facie Case

1. Protected Activities

Protected activities under the Act include providing the employer or (with

knowledge of the employer) the Federal Government with “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 . . . ” 49 U.S.C.A. § 42121(a)(1);

see also

29 C.F.R. § 1979.102. The complaints

may be oral or in writing, but must be specific in relation to a given practice, condi-

tion, directive, or event.

See Simpson v. United Parcel Service

, ARB No. 06-065,

ALJ No. 2005-AIR-00021 (ARB Mar. 14, 2008);

but see

Occhione v. PSA Airlines,

Inc.

, ARB No. 15-090, ALJ No. 2011-AIR-12 (ARB July 26, 2017). Though the com-

plainant need not prove an actual violation, the complainant's belief that a violation

occurred must be objectively reasonable.

See Douglas v. Skywest Airlines, Inc.

ARB Nos. 08-070, 08-074, ALJ No. 2006-AIR-00014 (ARB Sept. 30, 2009). A rea-

sonable belief has both objective and subjective components.

Hukman v. U.S. Air-

ways, Inc.

, ARB No. 15-054, ALJ No. 2015-AIR-3 (ARB July 13, 2017). To prove

subjective belief, a complainant must prove he or she actually “believed that the

conduct he or she complained of constituted a violation of relevant law.”

Id.

at 4-5.

To determine whether a subjective belief is objectively reasonable, the ALJ assesses

a complainant’s belief, taking into account “the knowledge available to a reasonable

person in the same factual circumstances with the same training and experience as

the aggrieved employee.”

Id.

Here, no one disputes Mr. Kossen engaged in protected activity. Sometime

between June and December of 2017, he filed at least one complaint with the FAA

relating to safety concerns at APA. (CB, p. 17.) While the evidence of record in-

cludes August 2017 communications with the FAA regarding legal interpretations

of the “1000-hour rule,” these communications identify Mesa Airlines and name a

- 23 -

specific pilot at Mesa Airlines, both for alleged violations of the “1000-hour rule.”

(CX 61.) But these communications do not identify APA nor any APA pilots by

name.

. Moreover, the included FAA Hotline submission forms do not reveal any

content or dates of these complaints, other than one date – June 10, 2018 – which

falls nearly six months after Mr. Kossen’s separation with APA. (CX 61, p. 325.)

Thus, the evidence of record does not include Mr. Kossen’s actual complaint naming

APA during this time.

But the evidence suggests it is very likely Mr. Kossen made a complaint that

resulted in an investigation of APA sometime in November or December of 2017.

Several APA employees acknowledged an investigation pertaining to the “1000-hour

rule.” (HT, p. 497;

see also

CX 31.) In addition, at least two APA employees testi-

fied the investigation was directly linked to the very concerns Mr. Kossen had

raised with them. Mr. Freeman, the Director of Operations at APA at the time of

the investigation, was “sure” the ensuing investigation was because Mr. Kossen

“had brought this issue up.” (HT, p. 498.) Similarly, in December of 2017, Mr. San

Agustin wrote Mr. Kossen, within a text message, “ The Feds are looking into your

concerns…” (CX 31.) Lastly, the record shows the FAA, in December of 2018, com-

pleted an investigation pertaining to “air carrier safety allegations” raised by Mr.

Kossen and concluded APA “may have pilots who have falsified their flight hours.”

(CX 9, p. 57.) While it is unclear when the complaint which triggered this investi-

gation was filed, the record demonstrates Mr. Kossen filed an FAA complaint specif-

ically naming APA.

Given the documented history of engagement with the FAA, the documented

exchanges with APA officials regarding the safety issue, and the occurrence of an

investigation into the very same issue Mr. Kossen raised, I find Mr. Kossen engaged

in protected activity sometime between June and December of 2017 through the

filing of a complaint with the FAA relating to safety concerns at APA.

2. Knowledge

To prevail under the Act, a complainant must demonstrate by a preponder-

ance of the evidence that the employer knew of his protected activity

49 U.S.C. §

42121(b)(2)(B);

see

Clemmons

, slip op. at 9. “Preponderance of evidence” means the

greater weight of evidence; moreover, superior evidentiary weight, though maybe

“not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to

incline a fair and impartial mind to one side of the issue rather than the other.”

Brune v. Horizon Air Indus., Inc.

, ARB No. 04-037, ALJ No. 2002-Air-8, slip op. at

13 (ARB Jan. 31, 2006). Lastly, knowledge of a protected activity may be shown by

circumstantial evidence.

Kester v. Carolina Power & Light Co.

, ARB No. 02-007,

ALJ No. 2000-ERA-31, slip op. at 4 (ARB Sept. 30, 2003).

In general, it is not enough for a complainant to show the employer, as an en-

tity, knew of his protected activity. Rather, the complainant must show the decision

- 24 -

makers who subjected him to the alleged adverse actions knew of his protected ac-

tivity.

Peck v. Safe

Air Int’l, Inc.

, ARB Case No. 02-028 (ARB: Jan. 30, 2004), slip

op. at 11. Even where the complainant cannot show the decision maker who ulti-

mately took the adverse action knew of the protected activity, he or she may estab-

lish knowledge by showing another person who had “substantial input” into the al-

leged adverse action knew of the protected activity.

Kester

, slip op. at 4 (finding

knowledge where an employee who had “substantial input into the decision to fire”

the complainant had knowledge of the protected activity). Thus, an employer can-

not evade a finding of knowledge where a decision may have been substantially in-

fluenced by an individual who knew of the activity but the ultimate decision maker

remained unaware.

The record demonstrates by a preponderance of the evidence that Respondent

knew of Mr. Kossen’s protected activity of filing a complaint with the FAA. Mr.

Ferguson testified he was unaware of Mr. Kossen’s protected activity, and testified

it was his decision to accept Mr. Kossen’s resignation. (HT, p. 613.) According to

Mr. Freeman, Mr. Ferguson, as President of APA, is solely responsible for personnel

decisions.

. at 515. But Mr. Ferguson also testified he relies on monthly “opera-

tional calls” with Mr. Yoder and Mr. Freeman to inform his personnel decision mak-

ing.

. at 610-611. Furthermore, Mr. Ferguson decided to send the January 11,

2018 separation letter to Mr. Kossen after one of these operational calls.

. at 613.

While Mr. Freeman testified he did not think of Mr. Kossen’s actions as whistle-

blowing, he did acknowledge he knew of Mr. Kossen’s protected activity – Mr.

Freeman was “sure” the ensuing FAA investigation into flight time hours was be-

cause “Darren had brought this issue up.”

. at 498.

Thus, I find by a preponderance of evidence Respondent knew of Mr. Kossen’s

protected activity, given the evidence of (1) Mr. Freeman’s knowledge of the protect-

ed activity; (2) Mr. Ferguson’s reliance on operational calls with Mr. Freeman to

inform his personnel decisions; and, (3) Mr. Ferguson’s decision to draft a separa-

tion letter immediately after one of these operational calls.

3. Adverse Action

Air carriers may not intimidate, threaten, restrain, coerce, blacklist, dis-

charge, or in any other manner discriminate against any employee who has engaged

in protected activity.

See

29 C.F.R. § 1979.102(b) (AIR 21);

see also

29 C.F.R. §

24.2(b)(2003) (adopting similar definitions under similar whistleblower protection

statutes). But not everything that makes an employee unhappy constitutes an ac-

tionable adverse action under the Act.

Trimmer v. US DOL

, 174 F.3d 1098, 1103

(10th Cir. 1999). An actionable adverse action must be “

more than trivial

, either as

a single event or in combination with other deliberate employer actions.”

Williams

v. American Airlines

, ARB No. 09-018, ALJ No. 2007-AIR-004 (ARB Dec. 29, 2010);

Menendez v. Halliburton,

ARB Nos. 09-002, 09-003, ALJ No. 2007-SOX-005 (ARB

Sept. 13, 2011) (emphasis added). Thus, “[a]lthough AIR 21 protections are not re-

- 25 -

served for especially detrimental employment actions, such as termination, suspen-

sion, demotion, or loss of status or pay, these are certainly the most obvious exam-

ples of an adverse employment action.”

Harding v. So. Cal Precision Aircraft

, ALJ

No. 2011-AIR-005, slip op. at 22 (19 December 2011). Lastly, a complainant must

file his complaint with OSHA within 90 days of an alleged adverse action for the

complaint to be timely under the Act. 49 U.S.C. § 42121(b)(1).

Mr. Kossen puts forth a lengthy list of alleged adverse actions on the part of

Respondent. (CB, pp. 6-9.) Many of these actions are vague, broad, and un-

addressed or unsubstantiated beyond being mentioned within this list.

Within his

complaint to OSHA, Mr. Kossen lists two alleged adverse activities which occurred

on or about February 8, 2018: termination and blacklisting. (RX 2.) I understand

this lengthy list, taken in entirety, along with Mr. Kossen’s OSHA complaint, to

comprise essentially three distinct allegations: (1) Respondent’s denial of his re-

quest to be upgraded to captain; (2) Respondent’s alleged “blacklisting” of Mr. Kos-

sen; and, (3) Respondent’s alleged termination of Mr. Kossen’s employment.

a. Captain Upgrade

Mr. Kossen alleges APA’s denial of his request for a captain upgrade consti-

tuted an adverse action in retaliation to his protected activity. But, first, since the

record does not establish when the protected activity occurred, Mr. Kossen cannot

show the failure to upgrade was retaliatory. Mr. Kossen testified he learned he

would not be upgraded to captain before October, 2017. (HT, p. 304.) This prompt-

ed his application to Empire Airlines on October, 3, 2017, because he “wanted to be

a captain,” and his ultimate acceptance of a captain job at Empire Airlines on Octo-

ber 12, 2017.

. at 305-306. On the record before me, it is as possible his protected

activity occurred

after

October of 2017 as it is that it occurred

before.

And if it oc-

curred

after

the failure to upgrade, it cannot have been a contributing factor in the

failure to upgrade. Establishing the correct temporal relationship between the two

is part of Mr. Kossen’s

prima facie

burden.

Second, APA’s witnesses contend Mr. Kossen was not qualified to be promot-

ed to captain. Mr. Kossen himself contends he was fully qualified, but he has pre-

sented no evidence to show APA promoted even one other equally or less-qualified

first officer to captain at any time.

Absent any evidence of disparate treatment, I

cannot, on the record before me, conclude APA’s failure to promote Mr. Kossen was

For example, Mr. Kossen lists “making threats” without expanding upon this allegation anywhere

within the 799

page hearing transcript or 86 admitted complainant exhibits; lists “denied overtime”

as an adverse action; and lists promotion of a “new hire” to captain “instead of Darren Kossen” as

just a few examples of the many allegations put forth. (CB, p. 6.)

In his post-hearing brief, Mr. Kossen suggests APA may have hired Captains Sergei Rybakov, Max

Griffin, and Dennis Nutting as captains in preference to him (CB, p. 5), but this assertion in the brief

is unsupported by any evidence in the record about the comparative qualifications of any of the four.

- 26 -

an adverse action. Mr. Kossen is not sufficiently credible for me to conclude he was

qualified for promotion simply because he says he was.

Third, Mr. Kossen filed his OSHA complaint on February 13, 2018. (RX 2.)

The alleged adverse action occurred before October, 2017. A timely complaint must

have been filed within 90 days of the date upon which the employee knew or should

have known of the adverse action

. Peters v. American Eagle Airlines, Inc.

, ARB No.

04-140, ALJ Case No 2004-AIR-00009 (Apr. 3, 2007). Mr. Kossen’s complaint about

this alleged adverse action falls outside the 90 day window and is, therefore, un-

timely.

b. Alleged Blacklisting

Mr. Kossen contends APA blacklisted him because of his protected activity.

Specifically, he argues APA “had contact with Empire [Airlines] to poison his well”

and APA engaged in blacklisting by “not providing Mr. Kossen with a recommenda-

tion letter.” (CB, p. 8.) Mr. Kossen also argues Mr. Freeman dissuaded TransAir

from hiring him, effectively blacklisting him. (CB, p. 50.) Lastly, Mr. Kossen be-

lieves he was fired from Wing Spirit in December of 2019 because Mr. Freeman in-

formed the airline of his AIR 21 complaint.

The record does not demonstrate that Respondent blacklisted Mr. Kossen.

First, without further evidence, I find APA’s failure to provide a recommendation

letter does not constitute blacklisting,

per se

. Second, Mr. Kossen’s belief that APA

tampered with his position at Empire Airlines hinges on his argument that Mr.

Yoder spoke with Empire Airlines in July of 2018, resulting in Mr. Kossen not being

offered a chief pilot position. (CB, p. 54.) Not only is there no evidence of record to

substantiate the conversation between Mr. Yoder and Empire Airlines, but also, by

November of 2017, Mr. Yoder had already left APA (

see

fn. 17,

supra

Third, the record does not show Mr. Kossen had a bona fide contract with

TransAir, which it breached after speaking with Mr. Freeman. If anything, the rec-

ord indicates precisely the opposite – that no such contract had been finalized yet.

Mr. Freeman provided only neutral feedback,

and TransAir decided against em-

ploying Mr. Kossen because of several “red flags” regarding Mr. Kossen’s own de-

meanor and professionalism. Other than speculation, there is no evidence to sug-

gest Mr. Freeman in any way alerted TransAir to those “red flags,” and Mr. Free-

man testified he did not.

The Director of Operations and Flight Operations at TransAir called APA while it was considering

hiring Mr. Kossen to “see what kind of employee” he was. (RX 7, p. 29.) He spoke with Mr. Free-

man, who gave “the standard HR answer, you know. Typically, when you call a place, they’d say,

yeah, he worked here, or he didn’t work here. And that’s pretty much all they give you, so unfortu-

nately, that’s all I got from Mr. Freeman.”

. at 30.

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Fourth, the record demonstrates only that Mr. Freeman was invited to speak

with Wing Spirit about job opportunities, and while there, mentioned Mr. Kossen

had filed a lawsuit in which Mr. Freeman was involved. The record does not show

Mr. Freeman mentioned the context or nature of this lawsuit, as Mr. Kossen be-

lieves. And it does not follow that a passing reference to “litigation” between Mr.

Kossen and APA shows a conscious attempt to harm Mr. Kossen. To be sure, filing

an AIR 21 complaint may cause problems for a pilot in a close-knit community, but

there is no evidence Mr. Freeman identified the “litigation” as an AIR 21 complaint,

or suggested the “litigation” lacked merit, or in any way implied Mr. Kossen’s posi-

tion in the “litigation” was unreasonable. Mr. Kossen asks me to infer as much

from the record, but I find insufficient evidentiary support for such a conclusion in

the record before me.

Fifth, and finally, Mr. Kossen’s later employers not only deny any blacklist-

ing, but offer other reasons for their actions. TransAir discovered “red flags” inde-

pendently of APA; Empire Airlines reports poor CRM skills, a month-long demotion,

and serious safety events with passengers onboard; and Wing Spirit told Mr. Kossen

of his “bad attitude” and reportedly said he was spreading “rumors” about the com-

pany.

In sum, I find insufficient evidence to support a conclusion that APA black-

listed Mr. Kossen, however sincerely he may believe it happened. But his own un-

supported suspicion – particularly when coupled with express denials from other

witnesses, and evidence of a serious performance issue at Empire Airlines – does

not carry the day on this issue.

c. Alleged Termination

Mr. Kossen carries the burden of establishing an alleged adverse action by a

preponderance of evidence. He must show his interpretation of events is supported

by superior evidentiary weight “to incline a fair and impartial mind to one side of

the issue rather than the other.”

Brune

supra

, slip op. at 13.

Here, I find Mr. Kossen does not meet that burden with respect to his alleged

termination in January, 2018. There is no question Mr. Kossen himself resigned on

November 22, 2017. And there are a number of material discrepancies between his

testimony and the testimony of several credible witnesses. Because Mr. Kossen’s

own credibility is impaired, I cannot take his testimony as true and the contradicto-

ry testimony as false, especially where the contradictory witness was credible.

Mr. Kossen and Respondent disagree on many material issues. Primarily,

they do not agree on whether the January 12 exit date constituted Mr. Kossen’s res-

ignation or termination. Both parties acknowledge Mr. Kossen “agreed to work

through the month of December,” but Respondent maintains “there was no agree-

ment beyond December.” (RB, pp. 1-2.) There is no documentary evidence of any

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agreement between APA and Mr. Kossen extending his post-resignation employ-

ment either temporarily or permanently.

There is no question Mr. Kossen took a job with a competitor on October 12,

2017. There is also no question he resigned from APA on November 22, 2017. His

letter of resignation (RX 5) is unequivocal on its face. Mr. Kossen argues he later

effectively “rescinded” his resignation, apparently contending the rescission re-

stored his original employment status, so that the end of his employment in Janu-

ary, 2018, must have been a termination.

But as Respondent observes, the events following Mr. Kossen’s unequivocal

resignation are “muddied.” (RB, p. 1.) There is no written record of the purported

rescission in the record (

see

fn. 14,

supra

). In addition, APA’s hiring of replacement

personnel (RB, p. 44; HT, p. 609), and the credible testimony of Mr. Freeman and

Mr. Ferguson, suggests APA did not understood Mr. Kossen, after “rescinding,” in-

tended to stay at APA indefinitely.

Moreover, there is conflicting evidence about whether Mr. Kossen ever told

Empire Airlines he had decided to stay at APA indefinitely. Mr. Kossen testified he

did, but the record indicates Mr. Kossen e-mailed Empire Airlines asking to “post-

pone” his start date because of a family emergency, rather than withdrawing his

application in order to stay at APA. (RX 4.) Mr. Broschet of Empire Airlines also

understood Mr. Kossen had merely postponed his start date. (Fn. 16,

supra

.) Mr.

Kossen’s testimony about having rescinded his APA resignation would be more per-

suasive if the record showed he simultaneously made a clean break with Empire

Airlines as well. It does not.

Neither is there any suggestion in the record that APA had any intention of

terminating Mr. Kossen’s employment at any time before he resigned. Managers at

the hearing expressed some criticisms of his performance as an employee, and the

company did not promote him to captain when he sought the promotion; but there is

nothing in the record to show anyone at APA had any thought of terminating his

employment, or even disciplining him,

before he submitted his facially-

unequivocal resignation on November 22, 2017. On the contrary, just in the previ-

ous month, APA gave Mr. Kossen a pay raise (HT, p. 319). Nothing in the record

suggests Mr. Kossen’s employment at APA would have ended in 2018 if Mr. Kossen

had not first, of his own volition, resigned from APA in 2017. The confusing chain of

events which followed his resignation – the purported “rescission” of his resignation,

his continuing to work for APA while maintaining a start date for a new job at Em-

pire Airlines, and APA’s hiring of replacement personnel – was set in motion not by

any act of APA’s, but by Mr. Kossen’s resignation in order to take a job as a captain

with another airline.

As discussed above, there is no evidence, beyond Mr. Kossen’s own conclusory testimony, that

APA’s failure to grant the promotion he sought to captain was in any way discriminatory or retalia-

tory, or in any way a departure from its usual practice.

- 29 -

For all of these reasons, the record does not demonstrate Mr. Kossen’s ver-

sion of these events by a preponderance of the evidence. With respect to the alleged

termination, Mr. Kossen does not establish a

prima facie

showing of an adverse ac-

tion.

4. Causal Link

Finally, a successful AIR 21 complainant must establish the protected activi-

ty was a contributing factor to any adverse action. 49 U.S.C. § 42121(b)(2)(B). That

is, the complainant must show the adverse action was motivated, at least in part, by

a retaliatory or discriminatory response to complainant’s protected activity. A dis-

criminatory reference may be inferred where the adverse action closely follows the

protected activity in time. But temporal proximity is not always dispositive.

Thompson v. Houston Lighting & Power Co.

, ARB No. 98-101, ALJ Nos. 96-ERA-34,

38, slip op. at 6-7 (Mar. 30, 2001). Furthermore, “if an intervening event that inde-

pendently could have caused the adverse action separates the protected activity and

the adverse action, the inference of causation is compromised."

Clark v. Pace Air-

lines, Inc

., ARB No. 04-150, ALJ No. 2003-AIR-28, slip op. at 12-13 (ARB Nov. 30,

2006).

Considering an intervening event is essential to upholding the intended pur-

pose of the Act. Whistleblower provisions “are intended to promote a working envi-

ronment in which employees are relatively free from the debilitating threat of em-

ployment reprisals for publicly asserting company violations of statutes protecting

the environment.”

Passaic Valley Sewerage Comm'rs v. Department of Labor,

992

F.2d 474, 478 (3d Cir.1993). But “[t]hey are not, however, intended to be used by

employees to shield themselves from the consequences of their own misconduct or

failures.”

Trimmer v. U.S. Dep't of Labor

, 174 F.3d 1098, 1104 (10th Cir. 1999). A

complainant cannot use his whistleblower status to evade termination for non-

discriminatory reasons.

Trimmer

, 174 F.3d 1098 at 1104. Thus, the occurrence of

an intervening event, especially one undertaken by the employee himself, may un-

dermine a causal inference between the protected activity and the alleged adverse

action.

Here, Mr. Kossen’s resignation separates his alleged termination from his

protected activity. He submitted his resignation letter on November 22, 2017. In

this letter, he acknowledges he has accepted a job as a captain with another airline.

He also requests time off in January for training for his new position at Empire Air-

lines. (RB, p. 43.) I find Mr. Kossen’s November 22, 2017, resignation letter consti-

tutes an “an intervening event that independently could have caused” his final de-

parture from the company.

Clark

supra

, slip op. at 12-13. By submitting his resig-

nation, he risked his position at the company (the very purpose of a resignation is to

sever employment, after all). The resignation caused APA to hire a new pilot in his

place. (HT, pp. 609-610.) Thus, I find Mr. Kossen cannot use his whistleblower sta-

tus to “shield” himself from the foreseeable consequences he put into play by resign-

- 30 -

ing, particularly in light of the conflict between his hearing testimony and his

statements to Empire Airlines after his purported “rescission” of that resignation.

Trimmer

at 1104.

V. ORDER

Mr. Kossen’s claim for relief under AIR 21 is DENIED.

SO ORDERED.

CHRISTOPHER LARSEN

Administrative Law Judge

NOTICE OF APPEAL RIGHTS: To appeal, you must file a Petition for Review (“Petition”)

with the Administrative Review Board (“Board”) within ten (10) business days of the date of the

administrative law judge’s decision.

Your Petition is considered filed on the date of its postmark, facsimile transmittal, or e-filing; but

if you file it in person, by hand-delivery or other means, it is filed when the Board receives it.

See 29 C.F.R. § 1979.110(a). Your Petition must specifically identify the findings, conclusions

or orders to which you object. You waive any objections you do not raise specifically. See 29

C.F.R. § 1979.110(a).

At the time you file the Petition with the Board, you must serve it on all parties as well as the

Chief Administrative Law Judge. You must also serve the Assistant Secretary, Occupational

Safety and Health Administration and the Associate Solicitor, Division of Fair Labor Standards,

U.S. Department of Labor, Washington, DC 20210. See 29 C.F.R. § 1979.110(a).

If no Petition is timely filed, the administrative law judge’s decision becomes the final order of

the Secretary of Labor pursuant to 29 C.F.R. § 1979.110. Even if a Petition is timely filed, the

administrative law judge’s decision becomes the final order of the Secretary of Labor unless the

Board issues an order within thirty (30) days of the date the Petition is filed notifying the parties

that it has accepted the case for review. See 29 C.F.R. §§ 1979.109(c) and 1979.110(a) and (b).

IMPORTANT NOTICE ABOUT FILING APPEALS:

The Notice of Appeal Rights has changed because the system for electronic filing is

changing beginning on Monday, December 7, 2020, at 8:30 a.m.

- 31 -

Thus, if you intend to e-file your appeal online on or after December 7, 2020, at 8:30

a.m., be sure to allow sufficient time to register under the new system and to learn

how to file an appeal.

You may pre-register to use the new system from November 9, 2020, until 5:00 pm

EST on December 3, 2020. As part of the migration to EFS, the Board’s current

EFSR system will go offline permanently at 5:00 pm Eastern Standard Time (EST)

on December 3, 2020. This means that you will not be able to e-file any appeals or

other documents with the ARB after 5:00 pm EST on December 3rd through De-

cember 7th, at 8:30 a.m. If you intend to file on these dates, please plan to file by

other means (conventional mail, hand delivery, etc.).

Although you may pre-register earlier, you will not be able to file using the new sys-

tem until December 7, 2020, at 8:30 a.m.

In addition, the Office of the Chief Information Officer (“OCIO”) will conduct an infor-

mational webinar on how to register and how to conduct basic filing operations:

Tuesday, November 17, 1:00 to 2:00 p.m. EST.

Webinar link:

https://usdolevents.webex.com/usdolevents/onstage/g.php?MTID=e7dbc7a

29dbb7f5ec26f4a717032cfb02

US Toll Free 1-877-465-7975

US Toll 1-210-795-0506

Access code: 199 118 1372

Password for all meetings: Welcome!68

Information for webinars on the new system will also be available on the OALJ

(www.dol.gov/agencies/oalj), the ARB (www.dol.gov/agencies/arb), and the new EFS

(https://efile.dol.gov/) websites.

Filing Your Appeal Online

If you e-file your appeal on or before 5 p.m. on December 3, 2020, you must use the

Board’s current Electronic File and Service Request (EFSR) system at dol-

appeals.entellitrak.com. Again, the Board’s current EFSR system will go offline at 5

p.m. Eastern Time on December 3, 2020, for deployment related activities. Please plan

your filings accordingly. Information regarding registration for access to the EFSR sys-

tem, a step by step user guide, and answers to FAQs are found at that website link. If you

have any questions or comments, please contact Boards-E[email protected]ov

Beginning on Monday, December 7, 2020, at 8:30 a.m., the U.S. Department of Labor

will implement a new eFile/eServe system (“EFS”) at https://efile.dol.gov/. If you use

the current website link, dol-appeals.entellitrak.com, you will be directed to the new sys-

- 32 -

tem. Information regarding registration for access to the new EFS, as well as user guides,

video tutorials, and answers to FAQs are found at https://efile.dol.gov/support/.

Registration with EFS is a two-step process. First, all users, including those who are registered

users of the current EFSR system, will need to create an account at login.gov (if they do not have

one already). Second, users who have not previously registered with the EFSR system will then

have to create a profile with EFS using their login.gov username and password. Existing EFSR

system users will not have to create a new EFS profile. All users can learn how to file an appeal

to the Board using EFS by consulting the written guide at https://efile.dol.gov/system/files/2020-

11/file-new-appeal-brb.pdf and the video tutorial at https://efile.dol.gov/support/boards/new-

appeal-brb.

BE SURE TO REGISTER IN ADVANCE! Again, you may preregister for EFS from

November 9, 2020, until 5:00 pm EST on December 3, 2020. Establishing an EFS ac-

count under the new system should take less than an hour, but you will need additional

time to review the user guides and training materials. If you experience difficulty estab-

lishing your account, you can find contact information for login.gov and EFS at

https://efile.dol.gov/contact.

If you file your appeal online, no paper copies need be filed. You are still responsible

for serving the notice of appeal on the other parties to the case.

Filing Your Appeal by Mail

You may, in the alternative, including the period when EFSR and EFS are not available, file

your appeal using regular mail to this address:

U.S. Department of Labor

Administrative Review Board

ATTN: Office of the Clerk of the Appellate Boards (OCAB)

200 Constitution Ave. NW

Washington, DC 20210–0001

Access to EFS for Non-Appealing Parties

If you are a party other than the party that is appealing, you may request access to the appeal by

obtaining a login.gov account and creating an EFS profile. Written directions and a video tutorial

on how to request access to an appeal are located at:

https://efile.dol.gov/support/boards/request-access-an-appeal

After An Appeal Is Filed

After an appeal is filed, all inquiries and correspondence should be directed to the Board.

Service by the Board

- 33 -

Registered users of EFS will be e-served with Board-issued documents via EFS; they will

not be served by regular mail. If you file your appeal by regular mail, you will be served

with Board-issued documents by regular mail; however, on or after December 7, 2020, at

8:30 a.m., you may opt into e-service by establishing an EFS account, even if you initial-

ly filed your appeal by regular mail.