13-3124-ag
Unified Turbines, Inc. v. U.S. Dep’t of Labor

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
16th day of September, two thousand fourteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         ROBERT D. SACK,
         GERARD E. LYNCH,
                     Circuit Judges.
________________________________________________

UNIFIED TURBINES, INC.,

           Petitioner,

                   v.                                           No. 13-3124-ag

UNITED STATES DEPARTMENT OF LABOR,

           Respondent,

JOHN NAGLE,

         Intervenor.
________________________________________________

For Petitioner:           JOHN LEWIS FRANCO, JR., Burlington, VT.
For Respondent:           SARAH J. STARRETTT, Attorney (M. Patricia Smith, Solicitor of Labor,
                          Jennifer S. Brand, Associate Solicitor, William C. Lesser, Deputy
                          Associate Solicitor for Fair Labor Standards, Megan E. Guenther,
                          Counsel for Whistleblower Programs, on the brief), U.S. Department
                          of Labor, Office of the Solicitor, Washington, DC.

For Intervenor:           LISA M. WERNER, Clark Werner & Flynn, P.C., Burlington, VT.



       Petition for review of a decision by the United States Department of Labor,

Administrative Review Board.

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the petition for review is DENIED.

       Petitioner Unified Turbines, Inc., (“Unified”) seeks review of a May 13, 2013 Final

Decision and Order of the Administrative Review Board (“ARB”) of the Department of Labor

(re-issued June 12, 2013), affirming the determination of an administrative law judge (“ALJ”)

that Unified had violated the whistleblower protection provisions of the Wendell H. Ford

Aviation Investment and Reform Act for the 21st Century (“AIR 21”), 49 U.S.C. § 42121. In

particular, the ALJ found that Unified had discharged employee John Nagle after Nagle had

informed Unified that he suspected that another employee, “M,” was abusing prescription

medication. We assume the parties’ familiarity with the underlying facts and procedural history

of the case.

       Under AIR 21, we review the ARB’s Final Decision and Order in accordance with the

judicial review provisions of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702–706.

See 49 U.S.C. § 42121(b)(4)(A). “We will uphold a decision by the ARB if it is not ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law,’ 5 U.S.C.


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§ 706(2)(A), or ‘unsupported by substantial evidence,’ id. § 706(2)(E).” Bechtel v. Admin.

Review Bd., 710 F.3d 443, 445–46 (2d Cir. 2013). “Under this deferential standard of review,

‘we must assess, among other matters, whether the decision was based on a consideration of the

relevant factors and whether there has been a clear error of judgment.’ ” Id. at 446 (quoting

Judulang v. Holder, 132 S. Ct. 476, 484 (2011)). We have not decided whether to afford

deference in analogous contexts to the ARB under Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, 467 U.S. 837, 842–43 (1984). See Nielsen v. AECOM Tech. Corp., No. 13-235,

-- F.3d --, 2014 WL 3882488, at *4 (2d Cir. Aug. 8, 2014). But some deference may nevertheless

be due to the ARB because of the “thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later pronouncements, and all those factors which give

it power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see also United States

v. Mead Corp., 533 U.S. 218, 234–35 (2001).

       AIR 21 prohibits air carriers and their contractors from “discharg[ing] an employee or

otherwise discriminat[ing] against an employee with respect to compensation, terms, conditions,

or privileges of employment because the employee . . . provided . . . to the employer or Federal

Government information relating to any violation or alleged violation of any . . . regulation . . .

of the Federal Aviation Administration . . . .” 49 U.S.C. § 42121(a). To prevail on a

whistleblower retaliation claim under AIR 21,

       an employee must prove by a preponderance of the evidence that (1) [he] engaged in
       protected activity; (2) the employer knew that [he] engaged in the protected activity; (3)
       [he] suffered an unfavorable personnel action; and (4) the protected activity was a
       contributing factor in the unfavorable action. If the employee establishes these four
       elements, the employer may avoid liability if it can prove by clear and convincing
       evidence that it would have taken the same unfavorable personnel action in the absence
       of that protected behavior.


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Bechtel, 710 F.3d at 447 (quoting Harp v. Charter Commc’ns, Inc., 558 F.3d 722, 723 (7th Cir.

2009) (brackets omitted)).

        In its petition for review, Unified challenges the agency’s determinations with respect to

the first, third, and fourth elements of this test. With respect to the first element, we find to be

supported by substantial evidence the ALJ’s conclusion that Nagle’s statement on December 16,

2008 that he saw M selling drugs outside of Unified and that M had “problems” constituted

protected activity under AIR 21. The ALJ inferred from the language of Nagle’s statement and

his two prior protected complaints that Nagle viewed M’s alleged drug sale as further evidence

that M was abusing prescription medication and that his work was suffering. This inference is a

logical reading of Nagle’s statement, and the agency did not abuse its discretion in concluding

that Nagle reasonably believed that such abuse was in violation of Federal Aviation

Administration safety regulations.

        As for the third element, Unified argues both that the ARB’s interpretation of the

statutory term “discharge” was erroneous and that substantial evidence does not support the

agency’s finding that Unified discharged Nagle when it did not follow up after Nagle failed to

report to work following an altercation with M. The ARB interprets the term “discharge” in the

whistleblower retaliation context to include situations in which an employee has not actually

resigned, but “an employer . . . decides to interpret an employee’s actions as a quit or

resignation.” Klosterman v. E.J. Davies, Inc., ARB No. 08-035, 2010 WL 3878518, at *5 (ARB

Sept. 30, 2010). While this reading does not mirror the definition that we have applied to similar

terms in other employment laws, the ARB has a significant expertise in handling whistleblower

claims, cf. Community Health Center v. Wilson-Coker, 311 F.3d. 132, 138 (2d Cir. 2002), and


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has consistently deployed this definition of discharge, see Klosterman, 2010 WL 3878518, at *5,

which furthers the statute’s purpose of protecting employees from retaliation. Accordingly, we

defer to the ARB’s reasonable interpretation. See Skidmore, 323 U.S. at 140. Moreover, we find

that the agency’s conclusion that Unified discharged Nagle was, under this standard, amply

supported by substantial evidence in the record. Although Unified’s position that Nagle

voluntarily quit is not without some support in the record, that is insufficient to overturn the

agency’s conclusion under our deferential standard of review. See Bechtel, 710 F.3d at 446

(requiring a finding of no abuse of discretion where, inter alia, “the decision was based on a

consideration of the relevant factors and . . . there has been [no] clear error of judgment”).

       Finally, with respect to the fourth element, Unified argues that substantial evidence does

not support the agency’s determination that Nagle’s protected complaints were a “contributing

factor” in Nagle’s discharge. In particular, Unified challenges as based only on “speculation” the

ALJ’s conclusion that the “likely reason” for the December 24 altercation was that M was angry

about Nagle’s December 16 complaint. But the ALJ relied on substantial evidence in the record

for this conclusion, including that Unified’s owners testified that they likely told M of Nagle’s

complaint within a day or two of December 16 and that they told M it was Nagle who made the

accusation; that Nagle and another witness testified credibly that M was the aggressor in the

fight; and that there was no evidence in the record to support “any other reason for M being

upset with Nagle” on that day. We therefore conclude that the ARB’s adoption of the ALJ’s

conclusion that Nagle’s protected complaint was a contributing factor in Nagle’s discharge was

not an abuse of discretion.




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       Accordingly, we find that the ARB’s determination that Unified discharged Nagle in

violation of AIR 21 was not an abuse of its discretion. We have considered Unified’s remaining

arguments and find them to be without merit. For the reasons stated herein, the petition for

review is DENIED.

                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




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