Executive Summary: On August 23, 2019, a Department of Labor Administrative Law Judge (ALJ) dismissed a claim filed against Delta Air Lines, Inc. (Delta) by former pilot Karl Seuring (Complainant) under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21). AIR21 prohibits carriers from discriminating against those who report an alleged violation of a Federal Aviation Regulation (FAR) or certain other aviation safety standards.


Complainant filed an AIR21 claim, alleging Delta terminated him in retaliation for raising safety claims in connection with contract maintenance performed by Delta on a foreign military aircraft. Following a four-day trial, the ALJ dismissed the claim in a lengthy decision, bringing further clarity as to AIR21’s standards.

Under AIR21, a complainant must first establish: (1) he engaged in protected activity; (2) respondent subjected him to an unfavorable personnel action; and (3) the protected activity was a contributing factor in the adverse personnel action. If the complainant establishes this, the burden then shifts to respondent to demonstrate by clear and convincing evidence it would have taken the same action in the absence of the protected activity.

The ALJ dismissed Complainant’s claim on the following three grounds: (1) Complainant failed to show he engaged in protected activity because he lacked an objectively reasonable belief that a violation of a FAR had occurred; (2) he failed to show his alleged protected activity was a contributing factor in his termination; and (3) even if he had satisfied his burden, Delta established with clear and convincing evidence that it would have terminated him in the absence of his alleged protected activity.

As to the first ground, the ALJ found that the information the Complainant claimed constituted protected activity did not constitute a violation of a FAR because the FARs do not apply to work on a foreign military aircraft. The ALJ nevertheless found that the Complainant still could have reasonably believed the FARs applied to that aircraft because of facts unique to the aircraft at issue. Even assuming the FARs applied, however, he could not have reasonably believed the maintenance would violate the FARs because, at the time of his alleged protected activity, he did not know what maintenance had been performed and his assumptions regarding what had occurred were, by themselves, insufficient to give rise to a reasonable belief in a FAR violation.

As to the second ground, the ALJ found Complainant failed to satisfy the contributing factor element. The evidence showed that Delta’s investigation was initiated because it discovered him unescorted in a restricted area within a Delta Tech Ops hangar—not due to any alleged protected activity. The ALJ credited the testimony of Delta’s witnesses regarding the evidence uncovered during the investigation and concluded that, although the investigation was initially narrowly focused, it was reasonable to expand it after the discovery of additional misconduct, including violations of company pass travel benefits. The ALJ observed that Delta “and the Part 121 community as a whole” view misuse of pass travel as “a serious offense that often warrants termination of employment.”

Finally, as to the last ground, the ALJ found that Delta would have terminated Complainant in the absence of his protected activity because of the multiple acts of misconduct discovered during the investigation. The ALJ observed that it is “not for this Tribunal to second-guess [Delta’s] decision to terminate Complainant’s employment when there is clear and convincing evidence that it would have done so in the absence of protected activity.” The ALJ further observed that “an employee’s protected activity does not insulate him from adverse action stemming from conduct separate and apart from the protected activity.” The full text of the decision can be found here.

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