Vieques Air Link, Inc. v. U.S. Dept. of Labor

• Decision Date: 02 February 2006
• Docket Number: No. 05-1278.,05-1278.
• Citation: 437 F.3d 102
• Parties: VIEQUES AIR LINK, INC., Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 102

437 F.3d 102

VIEQUES AIR LINK, INC., Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent.

No. 05-1278.

United States Court of Appeals, First Circuit.

Submitted October 7, 2005.

Decided February 2, 2006.

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.

Before TORRUELLA and LIPEZ, Circuit Judges, DiCLERICO,^* District Judge.

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 [] 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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (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 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 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.

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.

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 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...