Vieques Air Link, Inc. v. United States Department of Labor

United States Court of Appeals
For the First Circuit

No. 05-1278

VIEQUES AIR LINK, INC.,

Petitioner,

v.

UNITED STATES DEPARTMENT OF LABOR,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE UNITED
STATES DEPARTMENT OF LABOR ADMINISTRATIVE REVIEW BOARD

Before

Torruella and Lipez, Circuit Judges,

DiClerico,* District Judge.

Luis R. Mellado-González on brief for petitioner.
Howard M. Radzely, Steven J. Mandel, Paul L. Frieden, and
Barbara Eby Racine on brief for respondent.

February 2, 2006

*
Of the District of New Hampshire, sitting by designation.
 Per Curiam. Vieques Air Link, Inc. (“VAL”) seeks review

of the decision of the Department of Labor’s Administrative Review

Board (the “ARB”) affirming an award against the airline in favor

of a former VAL pilot, Ángel Negrón. Following an evidentiary

hearing, an administrative law judge for the Department ruled that

VAL had violated Section 519 of the Wendell H. Ford Investment and

Reform Act for the 21st Century, colloquially known as “AIR 21,” by

retaliating against Negrón for reporting the airline’s violations

of federal air safety standards, see 49 U.S.C. § 42121(a), and

entered an award in his favor. Because substantial evidence

supported this ruling, we affirm the ARB’s decision and deny VAL’s

petition for review.

I.

We review the ARB’s decision under the standard

prescribed by the Administrative Procedure Act. See 49 U.S.C. §

42121(b)(4)(A). “Therefore, our task is to determine whether the

action ‘was consonant with the agency’s statutory powers, reasoned,

and supported by substantial evidence in the record.’”

Conservation Law Found. v. Evans, 360 F.3d 21, 27 (1st Cir. 2004)

(quoting 5 U.S.C. § 706(2)(A)-(D)) (bracketing omitted); see also

Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 19 (1st

Cir. 1998). VAL seeks review of the decision solely on the ground

that it was unsupported by substantial evidence–-a “benchmark []

-2-
notoriously difficult to overcome on appellate review.” Bath Iron

Works Corp. v. Dep’t of Labor, 336 F.3d 51, 56 (1st Cir. 2003).

“Substantial evidence is ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’”

Clean Harbors, 146 F.3d at 21 (quoting Richardson v. Perales, 402

U.S. 389, 401 (1971)); see also, e.g., BSP Trans, Inc. v. Dep’t of

Labor, 160 F.3d 38, 47 (1st Cir. 1998). Although this quantum

measures “more than a scintilla, it certainly does not approach the

preponderance-of-the-evidence standard normally found in civil

cases.” Bath Iron Works, 336 F.3d at 56 (internal quotation marks

omitted). Furthermore, we “accept the findings and inferences

drawn by the ALJ, whatever they may be, unless they are

irrational,” and respect his or her “prerogative in the first

instance to . . . make credibility assessments . . . .” Id.

(internal quotation marks omitted); see also Barker v. Dep’t of

Labor, 138 F.3d 431, 434 (1st Cir. 1998).

II.

We see substantial evidence in the administrative record

to support the following relevant findings of fact made by the ALJ,

which were adopted in their entirety by the ARB. VAL initially

suspended Negrón for two days, effective March 1, 2002, following

his argument that day with Johnny Ramos-Melendez, the supervisor of

the VAL counter at Isla Grande Airport in San Juan. Ramos became

-3-
upset with Negrón when he started using a scale at the counter to

verify passengers’ weights that Ramos had already entered on the

flight manifest. In response, Ramos physically interposed himself

between Negrón and the scale; Negrón threatened to call the FAA and

the local police.

Ramos used the phone at the counter to call VAL’s

director of operations, Francisco Cruz, about the situation.

Although Cruz asked to speak to Negrón, he was on his cell phone

with the police at that point, so he did not pick up the counter

phone to talk to Cruz. Cruz then told Ramos to have a different

pilot make Negrón’s scheduled flight because of his agitated

condition. Although there were passengers in the waiting area

during the brouhaha, they remained about fifteen feet away and

therefore did not see anything out of the ordinary.

Later that day, Negrón called Cruz and gave his own

version of the incident, with which Cruz later said he was

“satisfied.” In fact, less than a week earlier, Cruz had

reprimanded Ramos for inaccurately recording passengers’ weights on

a manifest. Nevertheless, Cruz told Negrón that he was suspended

without pay for the balance of the two days remaining in his shift

due to the fact that he and Ramos had argued in the presence of

passengers. Ramos, for his part, testified that Cruz later told

him that he would receive a paid suspension and, furthermore, that

Negrón was “too strict in his work” and would be “removed from the

-4-
company.”1 Although Cruz denied making this statement, the ALJ

credited Ramos’s version of the meeting, and the ARB in turn

accepted the ALJ’s resolution of the conflicting testimony.

Negrón sent VAL a letter on March 20, 2002, objecting to

his suspension and stating his intention to make a report to the

FAA about the March 1 incident and “other irregularities.” In

fact, Negrón had alerted the FAA to that incident the day it

occurred. On March 22, 2002, the FAA conducted an inspection of

VAL’s Isla Grande operations. VAL’s president, Osvaldo Gonzalez,

testified that he knew the inspection came about as a result of

Negrón’s complaint to the FAA.

That evening, VAL’s chief pilot, Jimmy Adams, called

Negrón at home to tell him that VAL had a letter waiting for him.

The letter, signed by Gonzalez and dated March 22, 2002, advised

Negrón that he had been suspended without pay for fifteen days for

the March 1 incident and for his conduct at a March 19, 2002,

meeting between VAL’s pilots and its management. Gonzalez had

called the meeting to give Negrón and his fellow pilots an

opportunity to air their grievances, but testified that he became

upset at Negrón’s criticism of the abilities of VAL’s management.

At the meeting itself, however, Gonzalez had openly praised Negrón

for his comments.

1
VAL’s vice president later intervened and increased Ramos’s
punishment to a suspension without pay.

-5-
 Gonzalez acknowledged that the fifteen-day suspension

amounted, at least in part, to a second disciplinary action taken

in response to the same March 1 incident. Although Gonzalez denied

knowing when he handed down the suspension that Negrón had

complained to the FAA, the ALJ did not find this denial credible

because of inconsistencies in Gonzalez’s testimony on this point.

Again, the ARB accepted the ALJ’s credibility determination.

Negrón wrote to Gonzalez on March 23, 2002, objecting to the

suspension on a number of grounds, including that it closely

followed the FAA’s inspection of VAL’s operations for violations of

the kind Negrón had previously reported. Gonzalez reviewed the

letter, but it failed to sway him.

By late April, Negrón began to believe that Cruz was

singling him out by regularly conducting interviews with his

passengers after his flights had landed.2 Negrón communicated this

suspicion to Cruz through an April 29, 2002, letter. The letter

also noted that, during a meeting earlier that month between an FAA

inspector and a number of VAL employees held to reacquaint them

with proper weight procedures and other safety standards, the

inspector had commended Negrón for reporting irregularities at VAL.

2
Cruz had also threatened Negrón with disciplinary action for
allegedly failing to follow appropriate procedures on an April 10,
2002, flight. Negrón insisted that he acted properly, and it does
not appear that anything came of Cruz’s threat.

-6-
 Ten days later, VAL notified Negrón that, effective June

4, 2002, he was to report at the beginning of each workday to the

airline’s terminal in Vieques, rather than its terminal in Fajardo,

on Isla Grande, as he had been. The memorandum informing Negrón of

his reassignment explained that he would pilot VAL’s first flight

out of Vieques to Fajardo at 6 a.m. Upon receiving this news from

Adams, Negrón immediately asked how he would get from his home on

Isla Grande to the island of Vieques each day, given that he had no

access to a boat or a plane and there was no public transportation.

Adams made no response.

Negrón raised the logistical problem created by his

transfer again in a May 11, 2002, letter to Adams, and, in another

letter, dated June 3, 2002, announced that he would report to

Fajardo at 5:30 a.m. the next day, when he expected the airline to

provide him transportation to Vieques. Negrón indeed showed up at

Fajardo as promised, wearing his uniform and carrying the necessary

equipment. He was ignored by VAL personnel for most of the day,

until another pilot delivered a letter from Cruz reprimanding

Negrón for being there and warning him that VAL would consider his

employment abandoned if he did not report to Vieques by 6 a.m. the

next day. Negrón wrote back that, though he lived in the San Juan

area with his wife and two children, as the airline was aware, he

had in fact attempted to get to Vieques by 6 a.m. He added that he

-7-
was not abandoning his employment and that he planned to report to

Fajardo again the next morning to await transportation to Vieques.

In response, Cruz denied that VAL had any responsibility

to get Negrón to his new assignment on Vieques. Negrón proceeded

to report to Fajardo at 5:30 a.m. on June 5, 2005, despite Cruz’s

instruction to the contrary. Negrón also wrote another letter to

Cruz that day reiterating his desire to keep his job but explaining

that he could not afford the costs of traveling to and staying

overnight in Vieques, given the expense of maintaining his family

in the San Juan area. On June 13, 2002, Cruz notified Negrón that

he had abandoned his position by failing to show up at Vieques by

6 a.m. on June 6, 2002, and that he would therefore be replaced.

Gonzalez testified that Cruz made the decision to

transfer Negrón. Gonzalez also said, however, that he had a

discussion with Cruz about having one of the VAL pilots who lived

in Vieques–-rather than Negrón, who Gonzalez knew to reside near

San Juan–-make the first flight out of Vieques each day, but it was

decided to assign Negrón to the flight because the pilots living in

Vieques had more seniority. VAL, however, did not mention

seniority as a reason for the transfer in any of its communications

with Negrón on the subject prior to his termination.

Meanwhile, on May 7, 2002, Negrón filed a timely

complaint with the Department of Labor alleging that VAL had

violated AIR 21 by suspending him on March 22. See 49 U.S.C.

-8-
§ 42121(b)(1). Finding reasonable cause to believe that a

violation had, in fact, occurred, both in the form of the

suspension and the subsequent transfer and termination, the

Department issued a preliminary order in Negrón’s favor on November

25, 2002. See id. § 42112(b)(2)(A). VAL objected and requested an

evidentiary hearing, see id., which the ALJ conducted between May

19 and May 21, 2003. Following the hearing, the ALJ issued a

decision and order concluding that VAL had violated AIR 21 through

its treatment of Negrón, ordering his reinstatement with the

airline, and awarding him back pay, certain out-of-pocket expenses,

and damages for mental anguish. See id. § 42121(b)(3)(B). VAL

then sought review of the ALJ’s actions before the ARB, which

affirmed them in their entirety.

III.

Section 519 of AIR 21, in relevant part, prevents an

airline from discriminating against an employee because he or she

“provided . . . to the employer or Federal Government information

relating to any violation or alleged violation of any order,

regulation, or standard of the [FAA] or any other provision of law

relating to air carrier safety under [Title 49, Subchapter VII] or

any other law of the United States . . . .” 49 U.S.C. § 42121(a).

The ALJ ruled that VAL violated this provision by suspending Negrón

twice, then transferring him, because he complained to both

-9-
management and the FAA about several instances where VAL failed to

determine the weight aboard one of its planes properly before

flying. VAL challenges three of the findings underlying this

conclusion, and affirmed by the ARB, on the ground that they were

not supported by substantial evidence.

First, VAL argues that the ALJ could not have found that

the airline retaliated against Negrón for complaining about

possible safety problems because VAL was unaware of those

complaints when it suspended and transferred him. The evidence

presented to the ALJ, however, vitiates this contention. Just two

days after Negrón had notified his employer in writing that he

would be reporting the incident of March 1, 2002, to the FAA, an

inspector from that agency showed up at VAL. Despite acknowledging

that Negrón’s report had precipitated this visit, Gonzalez

testified that he did not know of the complaint when he issued his

suspension of Negrón later that same day. As the ARB determined,

the ALJ acted well within his discretion in rejecting that

testimony and finding that VAL knew of Negrón’s report to the FAA

when the airline suspended him on March 22, 2002, and when it

announced its decision to transfer him on May 6, 2002.

As to Negrón’s initial two-day suspension, effected on

March 1, 2002, VAL points out the lack of evidence of its

awareness, at that time, that he had made any complaints to the

-10-
FAA.3 AIR 21, however, protects not only those who report air

safety violations to the government, but also those who make such

reports to their employers. See 49 U.S.C. § 42121(a). The ALJ

specifically found that Cruz, VAL’s director of operations, knew at

the time he suspended Negrón for his argument with Ramos that the

argument had arisen out of Negrón’s insistence on verifying the

passenger weights that Ramos had entered on the manifest. Indeed,

before Cruz issued the suspension, he spoke to Negrón, who provided

his own account of his confrontation with Ramos. The ALJ

supportably found that this account constituted a report of an air

safety violation to VAL and, furthermore, that Cruz received the

report before taking disciplinary action against Negrón.

Accordingly, the ARB did not err in adopting these findings.

Second, VAL challenges the ALJ’s determination that

reassigning Negrón’s first daily flight from Fajardo to Vieques

amounted to discrimination with respect to the terms, conditions,

or privileges of his employment as proscribed by AIR 21. As an

initial matter, we note that the ALJ found that Negrón’s transfer

amounted to both a constructive discharge and one of the other

unspecified types of adverse employment action independently

prohibited by the statute, and that the ARB accepted both of these

3
On February 25, 2002, Negrón called the FAA over an incident
where Cruz had allegedly criticized him for taking a plane in for
maintenance and delaying the flight schedule as a result. The ALJ
did not find, however, that VAL became aware of this report before
Negrón’s suspension on March 1.

-11-
findings. Unlike the finding that the transfer was simply an

adverse employment action, the finding that it amounted to a

constructive discharge was essential to the damages Negrón was

awarded, so we focus on that aspect of the ALJ’s decision. See

Serrano-Cruz v. DFI P.R., Inc., 109 F.3d 23, 28 (1st Cir. 1997).

“To prove that he was constructively discharged, [an

employee] must show that the new ‘working conditions imposed by the

employer had become so onerous, abusive, or unpleasant that a

reasonable person in the employee’s position would have felt

compelled to resign.’” Mercado-Alicea v. P.R. Tourism Co., 396

F.3d 46, 52 (1st Cir. 2005) (quoting Suarez v. Pueblo Int’l, Inc.,

229 F.3d 49, 54 (1st Cir. 2000)). In concluding that Negrón had

suffered a constructive discharge, the ALJ noted that, after

learning of his transfer to Vieques, Negrón repeatedly asked his

employer for assistance in getting there by 6 a.m. each day, but

received no response whatsoever. Nevertheless, Negrón made his

own, albeit unsuccessful, effort to comply with his new assignment,

which included showing up ready for work at Fajardo at 5:30 a.m.

with the hope that VAL would get him to Vieques by 6. Although VAL

argued that Negrón could have simply joined some of his fellow

pilots in securing overnight accommodations in Vieques, the ALJ

relied on Negrón’s testimony that he could not afford the

additional costs of staying there, while maintaining his young

family in the San Juan area, on his weekly salary of $330.75.

-12-
“Doubtless a drastic increase in commuting time and unreimbursed

costs might at some point become sufficiently onerous to justify an

employee in quitting.” Alicea Rosado v. Garcia Santiago, 562 F.2d

114, 120 (1st Cir. 1977) (footnote omitted). The ALJ had

sufficient evidence before him to support his conclusion that the

transfer to Vieques imposed such conditions on Negrón and therefore

amounted to a constructive discharge.

Third, VAL disputes the ALJ’s finding that the transfer,

as well as the two suspensions that preceded it, were motivated by

Negrón’s reports of safety violations to the FAA and to VAL itself.

AIR 21 puts the burden on the employee to show that his or her

protected behavior under the statute “was a contributing factor” in

the adverse employment action suffered. 49 U.S.C. §

42121(b)(2)(B)(iii). If the employee carries this burden, the

employer nevertheless avoids liability if it “demonstrates by clear

and convincing evidence that the employer would have taken the same

unfavorable personnel action in the absence of that [protected]

behavior.” Id. § 42121(b)(2)(B)(iv).

In accordance with this framework, the ALJ found, and the

ARB agreed, that Negrón had demonstrated that his complaints of

safety violations contributed to both of his suspensions and his

transfer, and that VAL had failed to show the contrary by clear and

convincing evidence. The ALJ concluded, as a result, that VAL had

taken the adverse employment actions against Negrón because of his

-13-
complaints in violation of section 42121(a). This approach

comports with the general rule in employment discrimination cases

that “a plaintiff’s prima facie case, combined with sufficient

evidence to find that the employer’s asserted justification is

false, may permit the trier of fact to conclude that the employer

unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 148 (2000); see also Currier v. United Techs.

Corp., 393 F.3d 246, 255 (1st Cir. 2004). Furthermore, we see

substantial evidence in the administrative record to support the

ALJ’s determinations that, in the case of each unfavorable

personnel action, Negrón succeeded in showing that it arose from

his safety complaints and that VAL failed to prove that those

complaints were unconnected to its decisions. We explain briefly.

Both the March 1 and the March 22 suspension followed

almost immediately on the heels of reports Negrón made about air

safety violations at VAL. The ALJ permissibly treated the temporal

proximity between the reports and the suspensions as sufficient to

show the requisite causal relationship. See Bechtel Constr. Co. v.

Sec’y of Labor, 50 F.3d 926, 934 (11th Cir. 1995) (applying

identical standards of whistleblower protection provisions of

Energy Reorganization Act).

The ALJ also supportably found that VAL’s attempts to

explain these disciplinary actions as unconnected to Negrón’s

safety complaints did not wash. Although VAL claimed it suspended

-14-
Negrón on March 1 because he had argued with Ramos in front of the

airline’s passengers, Ramos testified that the passengers had

remained far enough away that they would not have perceived that

anything was amiss. The ALJ also noted the conflict between the

decision to suspend Negrón and Cruz’s testimony that he was

satisfied with Negrón’s explanation for the incident, as well as

the less severe sanction Cruz imposed on Ramos even though he had

been caught violating FAA weight regulations for the third time.

If this were not enough, the ALJ also found that Cruz had told

Ramos, in discussing the March 1 incident, that Negrón was “too

strict in his work” and would be “removed from the company.”

For similar reasons, the ALJ disbelieved VAL’s proffered

reasons for suspending Negrón for two weeks beginning on March 22.

VAL justified the action as an additional penalty for the March 1

incident and as a sanction for Negrón’s disrespectful comments

about VAL’s management during the March 19 meeting. The ALJ noted

that VAL’s witnesses had failed to come up with any reason why it

would have punished Negrón twice for the same alleged misconduct,

particularly when, again, Ramos had been punished only once for

actions that were at least as objectionable. The ALJ also pointed

out that basing the suspension on Negrón’s comments at the meeting

conflicted with the facts that (1) VAL had called the meeting

specifically to allow its pilots to air their grievances and

-15-
(2) Gonzalez had offered nothing but praise for Negrón’s comments

at the meeting itself. In light of these deficiencies in VAL’s

explanation, the ALJ acted well within his discretion in rejecting

it and concluding that the fallout from Negrón’s report to the FAA

at least contributed to his suspension immediately thereafter.

In finding that Negrón had shown that his contacts with

the FAA precipitated his transfer to Vieques, the ALJ again relied

on the fact that the contacts closely preceded the personnel

action. In particular, the ALJ noted that, in a letter of April

29, 2002, Negrón had mentioned that he had been praised by an FAA

inspector during his meeting with VAL employees for bringing safety

concerns to the agency’s attention, only to receive word of the

transfer a week later, on May 6, 2002.

VAL contended that it needed someone to pilot its new 6

a.m. flight out of Vieques and that it selected Negrón, as opposed

to one of the pilots already living on that island, simply because

he was the least senior. The ALJ, however, did not accept this

explanation, largely because VAL had not cited Negrón’s lack of

seniority as the reason for his transfer until the hearing itself.

As the ARB noted in concurring with the ALJ on this point, the fact

that an employer offers shifting explanations for its challenged

personnel action can itself serve to demonstrate pretext. E.C.

Waste, Inc. v. NLRB, 359 F.3d 36, 44 (1st Cir. 2004). There was

substantial evidence, then, to support the conclusion that Negrón’s

-16-
complaints to the FAA contributed to the decision to reassign him

to Vieques. We therefore conclude that the ARB properly affirmed

the ALJ’s decision that VAL suspended and transferred Negrón

because of his reports of safety violations to both the FAA and

VAL.

Finally, VAL challenges certain aspects of the relief

awarded to Negrón, namely $50,000 in compensatory damages for

mental anguish and $15,961.48 in attorneys’ fees. In fixing the

noneconomic damage award, the ALJ relied on Negrón’s testimony that

he struggled to support his wife and two infant children while he

looked for new full-time employment following his termination by

VAL. Although Negrón found a new job by mid-September, 2002, in

the meantime he was forced to sell both of his family’s modest cars

and deplete their meager savings to make ends meet. Negrón

specifically testified that this ordeal caused him suffering and

pain. The ALJ noted that like circumstances had justified similar

awards in a number of cases which had come before the ARB; for its

part, the ARB agreed with this assessment. Accordingly, we believe

that substantial evidence supported the $50,000 award that Negrón

received for the mental anguish caused by his termination.

Following his decision on the merits of Negrón’s claims,

the ALJ issued a separate order awarding Negrón his attorneys’ fees

in prosecuting his complaint to the Department of Labor that VAL

had violated AIR 21. VAL, however, did not challenge the fee award

-17-
before the ARB. By Department rule, “[a]ny party desiring to seek

review, including judicial review, of a decision of the

administrative law judge . . . must file a written petition for

review with the [ARB] . . . . Any exception not specifically urged

ordinarily shall be deemed to have been waived by the parties.” 29

C.F.R. § 1979.110. Relying on this rule, the ARB simply treated

the ALJ’s award of attorneys’ fees as final in the absence of any

objection from VAL. We must therefore do the same. See Trafalgar

Capital Assocs. v. Cuomo, 159 F.3d 21, 36 n.15 (1st Cir. 1998)

(citing Darby v. Cisneros, 509 U.S. 137, 153-54 (1993)).

IV.

For the foregoing reasons, VAL’s petition for review of

the ARB’s decision is DENIED.

SO ORDERED.

-18-