Avinash Yadav v. L-3 Communications Corp., et al

Filing

OPINION filed : the petition for review is DENIED, decision not for publication pursuant to local rule 206. Alice M. Batchelder, Chief Circuit Judge; R. Guy Cole , Jr., Authorizing Circuit Judge and Deborah L. Cook, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0171n.06
FILED

No. 10-3249

Feb 13, 2012
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

AVINASH YADAV,
Petitioner,
v.
L-3 COMMUNICATIONS CORP.;
STATES DEPARTMENT OF LABOR,

UNITED

Respondents.

BEFORE:

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LEONARD GREEN, Clerk

ON APPEAL FROM THE
U N I T E D
S T A T E S
DEPARTMENT OF LABOR
OPINION

BATCHELDER, Chief Judge; COLE and COOK, Circuit Judges.

COLE, Circuit Judge. Petitioner Avinash Yadav filed a complaint with the U.S. Department
of Labor alleging that he was terminated by Respondent L-3 Communications Corporation, Inc. (“L3”) in retaliation for bringing to the company’s attention the suspected noncompliance of a
development project with regulations set by the Federal Aviation Administration (“FAA”), in
violation of the “whistleblower” provision of the Wendell H. Ford Aviation Investment and Reform
Act for the 21st Century, 49 U.S.C. § 42121 (“AIR 21”). An administrative law judge dismissed the
complaint, finding that L-3 showed by clear and convincing evidence that it would have terminated
Yadav absent any protected activity. The Department of Labor Administrative Review Board
(“ARB”) affirmed. We DENY the petition for review.

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I. BACKGROUND
Ten months into his tenure as Manager, Engineering—Validation & Verification (“V&V
Manager”) at L-3’s avionics division, Yadav decided to break his silence as to an engineering
practice that had troubled him from the start. As his primary responsibility, Yadav oversaw L-3’s
development of and compliance with the engineering requirements for “SmartDeck,” an airplane
navigation system. Yadav came to believe that, instead of first planning, designing, and then
building SmartDeck, L-3 seemed to “reverse engineer” the product. Through this technique, L-3
assessed product quality by starting with a fully manufactured product, breaking it down, testing it
for errors, and then exploring ways to improve it.
For most of his time at L-3, Yadav reported to Wendy Ljungren, the Vice President of
Engineering for the avionics division. Ljungren reported to the division president, Adrienne Stevens.
In mid-August, during one of Yadav’s weekly meetings with Ljungren, Yadav voiced his
reservations about the SmartDeck project. On August 26, 2005, he memorialized these concerns in
a memorandum to Ljungren (“the August 26 Memo”), in which Yadav opined that the process that
L-3 actually used to develop SmartDeck’s software differed so drastically from the process it
reported using to the FAA that it violated FAA regulations. Yadav further described L-3’s chosen
development process as so “corrupt” that he found it virtually impossible to perform his V&V duties.
A few days later, Ljungren responded to Yadav’s email, disagreeing that L-3 misrepresented
SmartDeck’s development process. She asked Yadav to discuss his concerns with other colleagues,
to research whether the FAA accepted reverse engineering, and to report his findings to her.
Ljungren was away from her office for two weeks, during which time Yadav did not perform the
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requested tasks. Ljungren returned on September 14 and sent a follow-up email to Yadav, asking
him again to report his findings, and conveying her disappointment that he had not raised these
concerns earlier in the year or discussed them with colleagues closer to the development process.
She also forwarded the August 26 Memo to Stevens and to Kathleen Margo, L-3’s Ethics Officer
and Director of Human Resources.
A series of emails between Yadav and Ljungren followed. In these emails, Yadav expressed
his continuing concern about the alleged misrepresentations made by L-3 to the FAA. He insisted,
however, that it was not his responsibility to create more accurate language; rather, it was Ljundren’s
job to require other employees on the project to submit more accurate phrasing. As the exchange
continued without success, Yadav contacted Stevens to express his dismay at Ljungren’s resistance
to his recommendations for improvement and suggested that Ljungren’s obstinance and
incompetence lay at the root of the problem. In response to Yadav’s concerns, Stevens originated
an ethics investigation into the SmartDeck development process. The investigation uncovered no
ethical deficiencies.
As Yadav saw the situation among himself, Ljungren, and Stevens deteriorate, he contacted
Charlie Schafer, L-3’s Chief Operations Officer in New York City, for assistance. The urgency of
the concern Yadav expressed prompted Schafer to fly Yadav to New York the next day for an inperson meeting. One week after the meeting, Yadav sent Schafer a PowerPoint presentation
outlining his vision for a systemic overhaul of L-3’s avionics division, designed to eliminate the
problems that Yadav had identified.

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The next day, on September 30, 2005, L-3 terminated Yadav’s employment. L-3 gave Yadav
a four-page “Termination Memo,” citing forty-five examples of his conduct falling below company
expectations, grouped into categories, including:
•

Strong tendencies to offer complaints and accusations without
specific examples and suggested resolutions for improvements. . . .

•

Significant lack of follow up and follow through with requests made by
[Ljungren] on multiple occasions. . . .

•

. . . Very willing to characterize a situation without actively managing,
implementing solutions or creating resolution. . . .

•

Demonstrates a lack of communication and working of issues with
subordinates, colleagues/peers, and direct superior. Instead, makes efforts to
elevate issues and communication “confidentially” with higher
management. . . .

•

Misrepresentation of the truth. . . .

•

Concerns about your ability to lead your team and to create an environment
of positive morale. . . .

Of the forty-five examples, a handful faulted him for the way in which he raised his complaints to
his supervisors about SmartDeck’s development process. The remainder focused on Yadav’s failure
to follow through with specific directives, deviations from company policy, and weaknesses in
monitoring and leading his team.
Yadav unsuccessfully challenged his termination through the Department of Labor and
exhausted the administrative review process. The ARB affirmed an administrative law judge
(“ALJ”) decision dismissing Yadav’s complaint. Yadav appeals the ARB decision.

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II. ANALYSIS
A. Standard of Review
AIR 21 contains a whistleblower provision, shielding from discrimination any employee who
“provide[s] . . . to the employer . . . information 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 . . . .” 49 U.S.C. § 42121(a)(1). To survive dismissal, the
complainant must show that this behavior “was a contributing factor in the unfavorable personnel
action alleged in the complaint.” Id. § 42121(b)(2)(B)(i). The ARB will not grant 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.” 49 U.S.C. § 42121(b)(2)(B)(ii).
The Court reviews ARB decisions regarding AIR 21 violations under the substantial evidence
standard. See Hoffman v. Solis, 636 F.3d 262, 267 (6th Cir. 2011). Under this standard, the Court
reviews factual findings and the application of law to facts for whether they are “‘supported by
substantial evidence on the record considered as a whole.’” NLRB v. Dole Fresh Vegetables, Inc.,
334 F.3d 478, 484 (6th Cir. 2003) (quoting W.F. Bolin Co. v. NLRB, 70 F.3d 863, 870 (6th Cir.
1995)); Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 295 (6th Cir. 1985). “Substantial
evidence” means evidence that is “adequate, in a reasonable mind, to uphold the [agency’s]
decision.” Turnbull Cone Baking Co., 778 F.2d at 295 (citing Universal Camera Corp. v. NLRB,
340 U.S. 474, 487-88 (1951)). “[W]e must uphold the Board’s findings if supported by substantial
evidence even if ‘the court would justifiably have made a different choice had the matter been before

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it de novo.’” NLRB v. Gen. Fabrications Corp., 222 F.3d 218, 225 (6th Cir. 2000) (quoting
Universal Camera Corp., 340 U.S. at 487-88).
B. Yadav’s Claims
The parties agree that Yadav’s complaints regarding SmartDeck’s development process
constitute protected activity. Yadav maintains that substantial evidence does not support the ARB’s
conclusion that L-3 offered clear and convincing proof that it would have fired him absent his
protected activity. The ARB held that L-3 met its burden by providing “numerous emails and
memos in the record [that] support L-3’s decision to fire Yadav because he did little or nothing to
implement solutions beyond outlining the problems and criticizing other managers.” Yadav v. L-3
Commc’ns Corp., ARB Case No. 08-090, 23 (Jan. 7, 2010). We agree.
First, emails sent among Yadav’s superiors reflect pervasive concern about Yadav’s
inadequate performance. For example, after reviewing the August 26 Memo, Stevens remarked on
Yadav’s lack of follow-up and interpreted the memo as expressing Yadav’s intent to resign. Stevens
also complained to the Human Resources Department about Yadav’s criticisms and unwillingness
to follow through with solutions, stressing that implementing solutions constituted a key part of his
job. Ljungren lamented that Yadav had not made any effort to resolve engineering problems with
his team and chose instead to direct general complaints to his supervisors. Additional memoranda
document Ljungren’s, Stevens’s, and others’ frustration with Yadav’s poor preparation for weekly
meetings and his tendency to blame colleagues for his own deficient performance.
Second, there was no evidence that L-3 leadership was engaged in any effort to conceal the
problems with the SmartDeck development protocol that Yadav raised. Ljungren repeatedly offered
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to address any alleged “misrepresentations” in the certification documents, and to consult with the
FAA or other sources on addressing any deficiencies in the SmartDeck program. Stevens instigated
an ethics investigation using an outside auditor. Schafer flew Yadav to New York City and met with
him in person. While Yadav finds fault with how L-3 management responded to his concerns, their
alleged shortcomings do not negate evidence that they responded to Yadav’s concerns in good faith.
Finally, Yadav’s emails to Ljungren and others reflect his performance deficiencies. His
condescending tone toward his supervisor (“I can’t help someone who doesn’t want to be helped”),
inappropriate comments about her (“I can’t believe that I have to tell your VP of Engineering how
to do her job!”), refusal to follow explicit requests (“I don’t need any ‘new perspectives’ on this”),
and repeated threats to resign or otherwise abstain from his duties if L-3 did not meet his demands
(“I cannot and will not allow this program to proceed with the V&V effort unless I get some clear
answers to address my concern”) evidence Yadav’s unwillingness or inability to meet his employer’s
legitimate expectations. Taken together, this evidence supports the ARB’s determination that L-3
terminated Yadav not for reporting a potential legal or ethical violation, but for refusing direct
orders, failing to perform his clearly assigned duties, and falling well below legitimate performance
expectations.
Yadav further argues that the ARB ignored direct evidence that L-3 fired him for his
protected activities. Another L-3 employee had testified that Stevens told her that Yadav was
terminated because he had gone over her head by contacting Schafer, and she found this action
unacceptable. Yadav argues that Stevens’s purported statement contradicts L-3’s proffered reason
for firing Yadav, raising doubt as to L-3’s actual motive for terminating him. The ARB rejected this
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argument as “speculative and irrelevant.” Yadav, No. 08-090, at 19. We agree. Even accepting
Yadav’s contention that Stevens made such a statement, the statement is consistent with the
Termination Memo, which references Yadav’s tendency to “elevate issues and communicate
‘confidentially’ with higher management,” including his contact with Schafer, as one factor
supporting his termination. (Termination Memo, Yadav App’x at 414.) Thus, Stevens’s purported
statement, even if true, does not contradict L-3’s stated reasons for Yadav’s termination and is not
evidence of any improper conduct by L-3.
Yadav further challenges the ARB decision insofar as it approved the ALJ’s reliance on
evidence that L-3 allegedly did not consider in making its decision to terminate Yadav. The
particular evidence that Yadav challenges, however, receives scant mention in the ARB decision and
order. Given that our task is to review the decision of the ARB, and not the ALJ, we are easily
satisfied that substantial evidence supports the ARB’s decision.
III. CONCLUSION
For the above reasons, the petition for review is DENIED.

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