In affirming a pilot’s reinstatement and damages award, the U.S. Department of Labor’s Administrative Review Board (ARB) showed that its new Speegle test — which makes it tougher for employers to justify the firing of whistleblowers — will reach well beyond its initial application to the nuclear industry.
The U.S. Department of Labor’s Administrative Review Board (ARB) said it would hear an airline whistleblower’s appeal of a decision forcing her into arbitration with her former employer, saying the delay of arbitration might jeopardize her rights under the the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21) — and therefore could undermine AIR 21 itself.
In two related decisions last month, the U.S. Department of Labor’s Administrative Review Board (ARB) noted that proving retaliation in trucking-related whistleblower cases became “much easier” in 2007 — and said that judges will no longer get a free pass on applying the old standard.
On January 31, 2012, the Department of Labor’s Administrative Review Board (ARB) affirmed the decision of the Administrative Law Judge (ALJ) in the case of Luder v. Continental Airlines which found that Continental Airlines retaliated against a pilot who blew the whistle on perceived violations of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21). Additionally, the ARB held that the ALJ had improperly granted both back and front pay to former pilot Roger Luder, and remanded the case in order to determine the proper amount of damages.
In 2007, Mr. Luder and a co-pilot were scheduled to fly a Continental flight from Miami to Houston. Prior to departure, Mr. Luder’s co-pilot informed him that the plane had experienced turbulence during the previous flight that had gone unreported. Federal regulations require that planes be inspected after experiencing turbulence and, accordingly, Luder insisted that the plane be inspected prior to taking off and wrote a log entry regarding the turbulence. Subsequent to the incident, Continental temporarily suspended Luder and issued him a “termination warning” letter due to his ostensibly “unprofessional behavior.” Luder eventually claimed to suffer from Post-Traumatic Stress Disorder (PTSD), depression, and anxiety that arose from the retaliation he endure which, in turn, caused him to fail a flight simulator test and then be disqualified from flying.
The ALJ found that Luder’s actions constituted protected activity and that the airline’s actions were ‘materially adverse’ and retaliatory under AIR 21. The ALJ ordered Continental to pay Luder front and back pay as a result of the time he missed from work due to his health problems and also awarded the pilot monetary damages for having suffered retaliation.
Continental appealed the decision to the ARB claiming that Luder’s entry of the turbulence into the logbook was not a protected activity, citing Fabre v. Werner Enters which held that an action undertaken as “an integral part of compliance with the regulations” without further steps does not constitute a protected activity. The ARB, however, rejected this claim and distinguished Luder’s action from the situation in Fabre because Luder had gone above and beyond merely noting the turbulence in the logbook by insisting that the aircraft be inspected and refusing to fly until an inspection had been performed.
In addition to affirming the sufficiency of Luder’s protected activity under AIR 21, the ARB also found that the ALJ had properly ruled that Continental’s temporary suspension of Luder constituted an adverse action under the ‘materially adverse standard’ as the suspension resulted in a loss of wages. The ARB also held that while in some instances a warning letter does not necessarily constitute an adverse action, here the warning letter to Luder constituted an adverse action because having such a letter on file rendered Luder ineligible for an internal transfer according to company policy. Finally, the ARB viewed as significant the ALJ’s finding that the warning letter threatened Luder with further disciplinary action, including termination, and as a result, Luder “would be extremely reluctant to question airline safety because engaging in similar unacceptable behavior would result in his being fired.”
This most recent decision on what constitutes an adverse action against a whistleblower under AIR 21 comes after the Menendez v. Halliburton decision in September 2011 in which the ARB adopted a broad interpretation of the anti-retaliation provision of the Sarbanes-Oxley Act. In Menendez, the ARB noted that adverse actions “[refer] to unfavorable employment actions that are more than trivial, either as a single event or in combination with other deliberate employer actions alleged.”
In Harding v. So. Cal Precision Aircraft, U.S. Department of Labor Administrative Law Judge (ALJ) Russell D. Pulver held that 31-year military veteran Michael Harding had engaged in protected whistleblower activity when he reported his employer’s unsafe working conditions to the Federal Aviation Administration (FAA). ALJ Pulver further held that Harding’s employer violated Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), when it terminated Harding for engaging in protected whistleblowing activity.
In December 2006, Harding began work as an inspector at So. Cal. Precision Aircraft, Inc. (later purchased by Norton Aircraft Maintenance Services, Inc.). He was quickly promoted to lead inspector and later to senior auditor inspector. Harding made daily complaints to management regarding significant safety issues at work, such as:
- the improper use of an acetylene torch;
- the propping open of a 1500-pound cargo door with a wooden 2×4 instead of opening it hydraulically and locking it in place;
- the operation of the plant without a qualified Director of Maintenance.
[His manager] entered the office upset and cursing, telling [Harding] that he had six attorneys who were going to “kick [his] ass.” When [Harding] attempted to leave, [his manager] spit in his face and blocked his way. [Harding] called for security but when the officer arrived [his manager] told the officer that [Harding] had attacked him and was to leave immediately.
- DOL ALJ Orders Whistleblower Truck Driver Reinstated at Beacon Transport (employmentlawgroupblog.com)
- U.S. DOL ARB Ends Landmark Year Holding Summary Decision Improper Unless Employer Proves Sarbanes-Oxley Act Does Not Apply (employmentlawgroupblog.com)
- Tax Court Protects Identity of IRS Whistleblower (employmentlawgroupblog.com)
Department of Labor Administrative Law Judge William Dorsey ruled in favor of helicopter mechanic Mark Van who was fired by Portneuf Medical Center (an Idaho hospital) for repeatedly raising concerns about violations of FAA safety standards in their helicopter air ambulance program. The court noted that Van’s dedication to safety is primarily rooted in an experience in 2001 where Van and his son rescued a pilot from the flaming wreckage of a downed helicopter, saving the pilot’s life.
The events that led to his termination began in February 2005 when he found that ice had not been removed from one of the helicopters. This led him to question whether all pilots were taking adequate, routine precautions to ensure that helicopters would not fly with ice, snow, or frost on its control surfaces. He then reported the ongoing problem with cold weather operations to his superiors at Portneuf. Shortly thereafter Van was harassed by a pilot who flew an air ambulance with ice on its rotor blades. Van’s complaints went nowhere, so he took the matter to Portneuf’s Human Resources department, which also resulted in no corrective action.
On April 19, 2005, shortly after Van had completed an exhaustive inspection regimen on a helicopter, and worked on modifying the helicopter so that pilots could use night vision goggles, he was fired. Seemingly at odds with Portneuf’s decision to terminate Van was that he received a positive performance evaluation and merit salary increase just days before his firing.
The Judge concluded, “Raising air safety issues kindled the rupture that led to Van‘s termination.” By firing Van, Portneuf had violated § 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21), which prohibits employers from firing, demoting, suspending, or otherwise retaliating against a whistleblower who reports safety violations regarding aircraft.
Accordingly, Judge Dorsey ordered the following:
1. Portneuf Medical Center must pay to Mark Van:
- Lost compensation (including back pay and fringe benefits) in the amount of $287,438.31;
- Compensatory damages for his emotional distress in the amount of $100,000;
- Front pay in the amount of $98,576 since reinstatement was not practical;
- Interest on these amounts compounded quarterly; and
- Costs and expenses, including attorney‘s fees and expert witness fees.
2. Portneuf Medical Center must expunge from Van‘s personnel file all negative or derogatory information that pertains to the firing.
3. Portneuf Medical Center must deliver a copy of this decision and order directly to Life Flight pilots, medical flight staff, mechanics, and dispatchers within 7 days. Portneuf also must prominently post copies of this decision at every location where it posts other notices to employees that relate to employment law (e.g., wage and hour, civil rights in employment, age discrimination, and family medical leave). It must be posted for no fewer than 60 days; Portneuf must take all reasonable steps to ensure that no copy of the decision is altered or defaced.