Vernon T. Jones v. United States Department of Labor

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NONPRECEDENTIAL DISPOSITION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 FED . R. A PP . P. 34(a)(2)(C).

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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Airlines after he repeatedly flew with an outdated safety manual in violation of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 Tokyo

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No. 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 two

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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.

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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.

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