Whistleblower Law Blog

ARB Reverses ALJ and Finds Pilot Engaged In Protected Activity Under AIR-21

The Department of Labor’s Administrative Review Board (ARB) found that Dawn Sewade, a helicopter pilot for Halo-Flight, Inc., engaged in protected activity under AIR-21 when she reported what she reasonably believed to be unsafe aircraft conditions to Halo-Flight. The ARB also held that Sewade’s allegations of constructive discharge following a retaliatory warning for her report were actionable under AIR-21. The ARB decision reversed a prior decision by the DOL’s Office of Administrative Law Judge s (ALJ) that Sewade’s complaint was not protected activity under AIR-21.

The ARB found that Sewade engaged in protected conduct when she reported a safety concern about her aircraft and refused to fly, claiming that her aircraft was violently pitching and that fuel sampling techniques used by Halo-Flight were not proper. Sewade also reported a mechanic who threatened Sewade’s job security after Sewade made her complaints.

In response to Sewade’s complaints, Halo-Flight issued Sewade a verbal warning, and told Sewade that “if things don’t change, of course we might have to go to a different level…” Halo-Flight refused to take any action to correct the alleged defects with Sewade’s helicopter. As a result of Halo-Flight’s inaction and verbal warning, Sewade alleged that she was left with no option but to resign.

In holding that an employee’s reasonable complaints about aircraft safety that result in retaliation leading to constructive discharge are actionable, the ARB affirmed the protections under AIR-21 for pilots who report unsafe working conditions in the workplace. Moreover, the ARB’s decision affirmed that a pilot who is forced to resign after adverse actions following legitimate complaints need not be subjected to demotion, transfer, or a change of position in order to successfully bring a claim of constructive discharge under AIR-21.

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