# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 4, 2014 *

Decided June 4, 2014

Before

RICHARD A. POSNER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 13

‐ 2970

VERNON T. JONES,

Petitioner

,

v.

UNITED STATES DEPARTMENT OF

LABOR,

Respondent

. Petition for Review of a Decision of the

Administrative Review Board.

No. 12

‐ 055

O R D E R

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 to the employer or Federal Government information NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1

* After examining the briefs and the record, we have concluded that oral

argument is unnecessary. Thus the petition for review is submitted on the briefs and the

record. See F ED

. R. A PP

. P. 34(a)(2)(C).No. 13

‐ 2970 Page 2

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.” 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Airlines after he repeatedly flew with an outdated safety manual in violation of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 TokyoNo. 13

‐ 2970 Page 3

that 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 twoNo. 13

‐ 2970 Page 4

employees (Jones’s primary supervisor and a flight

‐ safety manager) that the ALJ found

credible—established that (1) Jones had received notice of the July revision both in a

must

‐ read e

‐ mail and on a bulletin board that he was required to check, (2) he failed to

update his manual with the revision and flew a dozen flights with an outdated manual,

(3) flying with an outdated manual violated company policy, and (4) Jones’s prior

disciplinary record meant that his safety infraction would lead to discharge. Jones did

not contest any of this evidence at the hearing, acknowledging only that he could not

recall whether he read the e

‐ mail notifying him of the revision. Even if Jones could

make out a prima facie case, the ALJ added, he nonetheless would be ineligible for relief

because the company had demonstrated by clear and convincing evidence that it would

have fired him for flying with an outdated manual regardless of his communications to

the FAA. The Administrative Review Board affirmed; in the Board’s view, substantial

evidence supported the ALJ’s conclusion that “United proved by clear and convincing

evidence that it would have terminated Jones regardless of any alleged protected

activity.”

Our review of the Board’s decision is governed by the Administrative Procedure

Act. See 49 U.S.C. § 42121(b)(4)(A); 5 U.S.C. § 706. The Board’s legal conclusions may be

overturned only if they are “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law,” and we must uphold the Board’s factual findings if they

are supported by substantial evidence. 5 U.S.C. § 706(2)(A), (E); Roadway Express, Inc. v.

U.S. Dep’t of Labor

, 612 F.3d 660, 664 (7th Cir. 2010).

In his petition for review, Jones contends that the agency erred by finding

United’s employees credible and generally argues that the agency erred in concluding

that the company did not violate AIR 21. Jones’s challenge fails on both fronts.

Determining the credibility of witnesses is the task of the ALJ “in all but the

extraordinary case,” Formella

, 628 F.3d at 391, and Jones provides no reason to question

the ALJ’s finding that United’s witnesses were credible. And the agency’s finding that

United would have fired Jones regardless of his communications to the FAA must stand

because it was supported by substantial evidence. See Formella

, 628 F.3d at 390; Vieques

Air Link, Inc. v. U.S. Dep’t of Labor

, 437 F.3d 102, 104 (1st Cir. 2006). Jones’s primary

supervisor testified that he did not know about Jones’s communications to the FAA and

that he decided to fire Jones for repeatedly flying with an outdated manual. Jones did

not rebut this evidence. He testified only that he could not recall whether he had read

the e

‐ mail notifying him of the July revision, but he agreed that he was responsible for

reading the e

‐ mail and for keeping his manual up

‐ to

‐ date.No. 13

‐ 2970 Page 5

Jones next asserts that the administrative hearing was unfair because the

company refused his request to turn over unspecified documents and make available

five of its employees as witnesses. But he does not explain how these witnesses or

documents would have helped his case. Moreover, he never sought to obtain this

evidence by moving the ALJ to compel discovery or to issue subpoenas. See 29 C.F.R.

§§ 1979.107(a), 18.21(a), 18.24(a); Murray v. Alaska Airlines, Inc.

, 522 F.3d 920, 923 n.4 (9th

Cir. 2008).

Finally, Jones maintains for the first time in his brief that United failed to put a

copy of the July revision in his mailbox as retaliation for a “COBRA fraud lawsuit” he

filed against the company. But Jones forfeited this issue by not presenting it to the

agency, see Formella

, 628 F.3d at 390, and in any event it is entirely unsupported.

Accordingly, Jones’s petition for review is DENIED.