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

Decision Date04 June 2014
Docket NumberNo. 13-2970,13-2970
PartiesVERNON T. JONES, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

Before

RICHARD A. POSNER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

DIANE S. SYKES, Circuit Judge

Petition for Review of a Decision of the

Administrative Review Board.

No. 12-055

ORDER

This appeal arises under the whistleblower-protection provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21). See 49 U.S.C. § 42121. AIR 21 prohibits airlines from discharging or discriminating against an employee who "provided . . . to the employer or Federal Government informationrelating 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." Id. § 42121(a)(1). Vernon Jones, a flight attendant, was fired by United Airlines after he repeatedly flew with an outdated safety manual in violation of company policy and federal regulations. He filed a complaint with the Department of Labor's Occupational Safety and Health Administration, asserting that United discharged him for reporting safety violations to the Federal Aviation Administration. An administrative law judge found in favor of United, and the Department of Labor's Administrative Review Board affirmed, concluding that United had shown by clear and convincing evidence that it would have terminated Jones absent any alleged whistleblower activity. Because the Board's decision is supported by substantial evidence, we deny Jones's petition for review.

Jones, who began working at United in 1995, had been disciplined several times during his career for violating company policy. Because of his repeated infractions, the company placed him on "warning level 4" in 2009, effective for a 2-year period. Under United's system of progressive discipline, such a warning meant that any further infraction by Jones could lead to his discharge.

In June 2010, one of Jones's Tokyo-based supervisors sent an e-mail labeled "must-read" to all United flight attendants whom he supervised, notifying them that a revision (effective July 1) to their operations manual was available for pick-up at any United coordinator's desk. Airlines are required by federal regulations to furnish crew members with the manual—containing regulations, standards, policies, and procedures—and periodic revisions; crew members in turn are required by the regulations to keep their manuals up-to-date by inserting the revisions (United's articles of conduct has similar requirements). See 14 C.F.R. §§ 121.133, 121.135, 121.137.

Jones did not pick up the July revision and worked a dozen flights in July and August 2010 with an outdated manual in violation of federal regulations and United's articles of conduct. He does not recall reading his supervisor's e-mail (he was on vacation when the e-mail was sent), but flight attendants are responsible for knowing the contents of e-mails labeled "must-read," and notice of the July revision also had been posted on bulletin boards that United requires flight attendants to check before working a flight. In mid-August Jones obtained the July revision and borrowed an up-to-date manual from a United coordinator while attending a training in Chicago. Jones's procurement of these documents triggered a notice to his supervisors in Tokyothat he may have been flying with an outdated manual. The company suspended him pending investigation.

While he was suspended, Jones reported to the Federal Aviation Administration that United had violated unspecified federal regulations by not placing a hard copy of the July revision in flight attendants' mailboxes. In a later message to the FAA, he also accused the company of failing to investigate an incident in which a passenger hurled racial epithets at him. United audited Jones's manual, confirming that it was outdated. After a disciplinary hearing, which Jones and his union representative attended, the company in October 2010 fired Jones.

Jones then filed a complaint with OSHA, alleging that United had discharged him in violation of AIR 21's whistleblower-protection provisions. See 49 U.S.C. § 42121; 29 C.F.R. § 1979.103. (To obtain relief under AIR 21, a complainant must first show by a preponderance of the evidence that he engaged in protected activity and that the protected activity was a contributing factor in the employer's adverse employment action. See 49 U.S.C. § 42121(b)(2)(B)(iii); Formella v. U.S. Dep't of Labor, 628 F.3d 381, 389 (7th Cir. 2010). Even if the complainant makes this prima facie showing, however, the agency may not provide the requested relief "if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior." 42 U.S.C. § 42121(b)(2)(B)(iv); Formella, 628 F.3d at 389.) Jones asserted that his messages to the FAA—in which he accused United of violating federal regulations by not placing the July revision in flight attendants' mailboxes and by failing to investigate the incident with the unruly passenger—were protected conduct, and that United fired him in retaliation for reporting its alleged misconduct.

OSHA's area director dismissed Jones's complaint after determining that he did not make a prima facie showing that the company had fired him in retaliation for protected conduct. See 29 C.F.R. § 1979.104(b). Jones objected to these findings and requested a hearing before an administrative law judge. See id. § 1979.106(a).

After conducting a hearing, the ALJ denied all relief, concluding that Jones could not make out a prima facie case of retaliation because he failed to establish by a preponderance of the evidence that his communications to the FAA were protected activity and because his evidence did not establish that United knew of his communications to the FAA, let alone that it fired him because of his accusations. The ALJ found that United's evidence—company documents and the testimony of twoemployees (Jones's primary supervisor and a flight-safety manager) that the ALJ found credible—established that (1) Jones had received notice of the July...

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