Case: 15-60012      Document: 00513334462         Page: 1    Date Filed: 01/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-60012                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
CONTINENTAL AIRLINES, INCORPORATED,                                       January 7, 2016
                                                                           Lyle W. Cayce
              Petitioner                                                        Clerk

v.

ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT
OF LABOR,

              Respondent




         Petitions for Review of the Final Decision and Order of the
       United States Department of Labor Administrative Review Board
                              LABR No. 10-026


Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Continental Airlines, Inc. (“Continental”) challenges an award by the
Administrative Review Board (“ARB”) for the Department of Labor in favor of
a pilot—Roger Luder. The ARB found that Continental retaliated against
Luder when it suspended him for logging turbulence on an earlier flight
reported to him by a member of the previous flight crew and triggering an



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 15-60012
inspection which resulted in a delayed flight. Because substantial evidence
supports the ARB order, we DENY RELIEF.
                                              I.
      Roger Luder was a pilot and captain for Continental Airlines. On
September 15, 2007, Continental scheduled Luder to fly an aircraft from Miami
to Houston. This flight was the last leg of a three-segment trip for that aircraft.
Before Luder boarded the aircraft for his flight, the aircraft had flown from
McAllen, Texas to Houston and then from Houston to Miami. When the plane
arrived in Miami, Luder’s co-pilot, John Wofford, spoke to Mack Solsberry, who
was co-pilot on the initial flights from McAllen and Houston.
      Solsberry told Wofford that the aircraft encountered significant
turbulence between McAllen and Houston. According to Solsberry, the
turbulence hit with a force that almost “ripped the wings off,” sent a flight
attendant to the medical clinic for treatment, and appeared “pink” on the
airplane radar. 1 Luder’s co-pilot Wofford then relayed this information to him.
      After Luder received this report from his co-pilot, Luder determined that
the airplane went through “severe” turbulence. He checked the aircraft logbook
and found no report of the earlier turbulence as required by Continental
protocol. Luder then logged the severe turbulence on the previous flight
himself, and placed a call to Continental’s Operations Control in Houston to
order an inspection. Such an inspection is required by Continental’s Flight
Operations Manual (“FOM”) when an aircraft encounters severe turbulence.
      Operations Control returned his phone call and ordered Luder to board
passengers on the plane as scheduled. Luder refused. He then received a phone
call from several officials within Continental, including Assistant Chief Pilot



      1 Pink is the color on an aircraft radar that symbolizes the strongest degree of
turbulence.
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                                 No. 15-60012
Kip Komidor and Senior Manager of Maintenance Control Jim Sunbury.
Komidor argued that no inspection was needed because the turbulence was
“moderate” rather than “severe.” Sunbury also disputed that the plane needed
an inspection telling Luder that the information he received from Solsberry
was “hearsay.” In response to their confrontation, Luder hung up. When they
called Luder again, he threatened to report Continental to the Federal Aviation
Administration (“FAA”).
      Continental then inspected the aircraft, and although it revealed no
defects, the inspection delayed take-off by over thirty minutes. Shortly
thereafter, Continental held an investigatory meeting and discussed Luder’s
actions. Following this meeting, Continental notified Luder by letter dated
October 19, 2007, that he was suspended without pay for twenty-one flight
hours and also subject to a termination level warning for future improper
conduct. Continental explained that he received the sanctions for “calling for
the inspection” in an “unprofessional” manner without following Continental
procedure.
      After the suspension ended, Continental conducted a line check ride on
Luder. He passed. Nevertheless, Continental ordered Luder to undergo flight
simulator training. Because he performed poorly on the first day of training,
Continental told him to return for a second day. Luder never returned, and
ultimately, was removed from flight status. Luder then began to undergo
treatment for his mental health.
      Three physicians diagnosed Luder with a myriad of mental health
problems ranging from depression to post-traumatic stress disorder. Dr.
Vitaliy Shaulov noted that Luder’s symptoms did not exist before Continental
fought his inspection. Dr. Robert Elliott explained that Luder described
Continental’s actions as the initiating event for his health issues. And finally,
Dr. Sandra Jorgenson reported that Luder lost his “identity and purpose”
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                                     No. 15-60012
without the ability to fly. Luder’s final treatment for medical problems
occurred on September 21, 2011.
      Luder filed a complaint with the Secretary of Labor alleging that
Continental retaliated against him in violation of 49 U.S.C. § 42121. An ALJ
conducted a hearing and entered an award in favor of Luder, and holding
Continental liable for unlawful retaliation when it suspended and issued a
warning letter to Luder. On review, the ARB affirmed the ALJ decision on
liability but remanded for further findings on the issue of damages. The ALJ
on remand found that Continental caused Luder’s mental health decline and
granted front-pay until he reached the mandatory retirement age. Upon
reviewing the damages award, the ARB agreed that Continental caused
Luder’s loss but limited his front-pay award to the date of his last medical
treatment. Continental then lodged this petition.
                                                II.
      We review de novo the conclusions of law by an administrative agency. 2
A finding of fact by the administrative agency is reviewed for substantial
evidence. 3 This standard is highly deferential, and requires only “that which is
relevant and sufficient for a reasonable mind to accept as adequate to support a
conclusion.” 4 Stated simply, substantial evidence exists if a reasonable person
could have reached the same conclusion as the administrative review board. 5
                                            III.
      The Wendell H. Ford Investment and Reform Act for the 21st Century
or “AIR-21”, 49 U.S.C. § 42121, was enacted to encourage airline employees to
report FAA violations. 6 To this end, AIR-21 prohibits airlines from penalizing


      2 Ameristar Airways, Inc. v. Admin. Review Bd., 

, 272 (5th Cir. 2014).
      3 

Hermann Hosp. v. Sebelius, 

, 405 (5th Cir. 2013).
      5 See 

.
      6 

U.S.C. § 42121).

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                                      No. 15-60012
an employee who reports a violation. 7 In particular, liability against an airline
requires an employee to establish four elements: the employee engaged in
protected conduct, the employer knew of the protected conduct, he suffered an
adverse employment act, and the protected conduct contributed to the adverse
employment act. 8 If the employee establishes his prima facie case, the airline
may argue as an affirmative defense that it would have taken the same action
regardless of the protected conduct. 9
       To establish protected conduct, the employee must show that he reported
a violation of federal safety law. 10 Specifically, activity is protected “because
the employee provided…information relating to any violation or alleged
violation of any order, regulation, or standard of the [FAA].” 11 Moreover, the
employee’s belief that a violation of federal law occurred must be reasonable. 12
Continental argues that Luder provided information unrelated to a federal
safety law, but even if it did concern a legal violation, his belief was
unreasonable.
       Substantial evidence supports the ARB finding that Luder reported an
alleged violation of federal law. Under 14 C.F.R. § 91.9, which is a federal
regulation governing safety and other aspects of the airline industry, pilots
must comply with the flight operations manual (FOM) of his airline. 13 In its



       7 

U.S.C. § 42121(a).
       9 49 U.S.C. § 42121(b)(2)(B)(ii).
       10 49 U.S.C. § 42121(a).
       11 49 U.S.C. § 42121(a)(1) (emphasis added).
       12 In re Van, 

, at *4 (Dep’t of Labor Jan. 31, 2013) (noting that an

employee must “subjectively believe[] that his employer was engaged in unlawful practices
and his belief must be objectively reasonable in light of the facts and record presented.”).
       13 In particular, 14 C.F.R. § 91.9 creates the standard of care for a pilot by

incorporating the airline’s FOM. And, if a pilot fails to comply with the FOM, he could face
punishment. See, e.g., Jensen v. Adm’r, FAA,No. 93-5135, 

, at *1
(5th Cir. 1994) (affirming the revocation of a pilot’s license by the FAA for below-standard
conduct).
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                                     No. 15-60012
operations manual, Continental required that pilots log all encounters with
severe turbulence during a flight. After a pilot logs such turbulence, the
operations manual then requires him to order an inspection of the aircraft.
      Because he believed that the airplane went through severe turbulence,
Luder’s actions implicated federal regulations in two ways. 14 First, by logging
the turbulence, he effectively reported a violation by the previous pilot for
failing to log his encounter with severe turbulence. Second, by challenging
Continental’s refusal to conduct the inspection and refusing to acquiesce in
Continental’s objection to an inspection he reasonably believed was required
by the FOM, Luder reported that Continental tried to cause him to violate FAA
regulations by not complying with the FOM.
      Moreover, substantial evidence supports the ARB finding that Luder’s
belief that the airplane encountered severe turbulence was reasonable.
Solsberry, who was on the first flight, described winds so strong they nearly
tore the wings off, sent a person to the medical clinic, and appeared on the
radar as pink—the greatest degree of turbulence.
      Continental’s argument that Luder failed to prove the remaining
elements of his prima facie case is meritless. Substantial evidence supports the
ARB decision that Luder proved these three elements. First, the ARB was
entitled to find Continental knew that Luder logged the severe turbulence and
requested an inspection. Particularly, the logbook entry and triggered
inspection by Luder was the subject of the heated telephone conversation
between him and Continental officials.
      The ARB also correctly determined that Continental’s action against
Luder was an adverse employment action. An adverse employment action is



      14 See In re Svendsen, 2004 DOL Ad. Rev. Bd. LEXIS 201, at *138 (Dep’t of Labor Aug.
26, 2004) (noting that conduct need only “touch on” subject matter of the regulation).
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                                      No. 15-60012
one that would dissuade a reasonable worker from engaging in the protected
conduct. 15 Suspension without pay is a way to dissuade employees from
engaging in protected conduct, and thus, Continental’s suspension of Luder for
two weeks without pay was an adverse employment action. 16
       Substantial evidence also supports the ARB holding that Luder’s
protected conduct contributed to the adverse employment action. A factor that
affects the outcome of a decision in any way contributes to the adverse
decision. 17 The ARB did not err in concluding that Luder’s logbook entry
affected Continental’s decision to suspend him. In its letter advising Luder of
his sanctions, Continental acknowledged that he “requested an aircraft
inspection” and that it punished him for “calling for the inspection,” and as
such, his “actions were unprofessional.” 18
       Instead of suspending Luder for making the logbook entry, Continental
argues that it suspended Luder because “his behavior on the telephone” was
unprofessional and he failed to follow “appropriate and reasonable
procedures.” However, the ALJ finding that the alternative reasons presented
by Continental were pretextual is supported by substantial evidence.
       Luder had the authority to decide that the plane was unsafe to operate
under 14 C.F.R. § 91.3, which provides that “[t]he pilot in command of an
aircraft is directly responsible for, and is the final authority as to, the operation
of that aircraft.” Thus the ALJ was entitled to find that the real reason for
Luder’s suspension was not his impolite action in connection with his heated
telephone conversation with Komidor, but instead, it was his refusal to agree



       

. Admin. Review Bd., 514 F.3d 468,476 n.2 (5th Cir. 2008).
       16 Cf. LeMaire v. La. Dep’t of Transp. & Dev., 

, 390 (5th Cir. 2007);
Hypolite v. City of Houston, 493 F. App’x 597, 606 (5th Cir. 2012).
       17 Ameristar Airways Inc. v. Admin. Review Bd., 

, 567 (5th Cir. 2011).
       18 “You failed to use good judgment in the performance of your duties by not following

appropriate and reasonable procedures in calling for the inspection.”
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                                      No. 15-60012
with them that an inspection was not required under Continental’s FOM.
Similarly, Luder followed Continental procedures; despite its contrary
argument, Luder consulted with numerous individuals about his concern for
the safety of the aircraft, including Operations Control—twice—and three
different Continental officials. 19
      Continental argues finally that the ALJ and ARB erred in refusing to
accept its affirmative defense. An airline may avoid liability if it proves that it
would have made the same adverse decision regardless of the protected
conduct. 20 Although Continental argues that Luder’s impolite conversation
and failure to follow procedures justified his suspension, the ALJ was entitled
to find that the real cause for the suspension was Luder’s request for an
inspection of the aircraft and delaying the flight. The ALJ and ARB therefore
were entitled to reject Continental’s affirmative defense.
      Continental also challenges the award given to Luder. The remedy
provided by AIR-21 is meant to make an employee whole, and generally, the
award is to reinstate an employee to his former position. 21 But front-pay is
available when reinstatement is not possible. 22 Continental argues primarily
that Luder did not continue to suffer a loss after his suspension ended, because
he passed a line check ride indicating that he did not suffer from any mental
illness.
      Nevertheless, the findings of the ARB that Luder is entitled to an award
of front-pay until September 21, 2011 are supported by substantial evidence.




      19  Continental also appealed whether the ALJ had authority to reopen the record on
remand from the ARB. This argument is without merit. In its remand order, the ARB gave
the ALJ the discretion to “determine the fairest and most expeditious way to proceed
consistent with this opinion.”
       20 49 U.S.C. § 42121(b)(2)(B)(ii).
       21 See 49 U.S.C. § 42121(b)(3)(B).
       22 In re Berkman, 

, at *22 (Dep’t of Labor Feb. 29, 2000).

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                                        No. 15-60012
The medical evidence was insufficient to show that a pilot could not pass a line
check flight while suffering from a mental illness. Moreover, Luder introduced
substantial medical evidence to establish that he suffered a precipitous decline
in mental health after Continental’s actions and that his loss persisted until
September 21, 2011, when Luder received his final medical treatment. Because
this was the last date of his treatment, the ARB was entitled to find that Luder
no longer suffered a loss attributable to Continental’s actions after that date. 23
                                                IV.
       For the foregoing reasons, we DENY RELIEF the Administrative Review
Board order.




       23 Luder argued that he continues to suffer from tachycardia, which is a heart
condition that may be attributable to a mental health condition. However, Luder failed to file
a cross petition and seek to modify the ARB judgment by increasing the damages.
Accordingly, Luder is prevented from now raising this argument in his reply brief. See 42
U.S.C. § 42121 (b) (4) (“[a]ny person adversely affected or aggrieved by an order…[can] obtain
review of the order in the United States Court of Appeals…[but] [t]he petition for review
must be filed.”); El Paso Nat. Gas Co. v. Neztsosie, 

, 479 (1999) (“[a]bsent a cross-
appeal, an appellee…may not ‘attack the decree with a view either to enlarging his own rights
thereunder or of lessening the rights of his adversary.’”).
                                               9