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ARB Rules that Pilot Engaged in Protected Conduct When He Declared Himself and His Crew Unfit to Fly

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In Douglas v. Skywest, Inc., the Administrative Review Board (“ARB”) affirmed an Administrative Law Judge’s (“ALJ”) finding that the complainant Don Douglas engaged in protected activity under AIR 21 when he declared himself and his crew unfit to fly, and informed his supervisors on same.  Don Douglas, a 16-year veteran pilot for SkyWest, filed a whistleblower complaint against his employer, alleging that the company retaliated against him when he informed the crew scheduling office that he and his crew were physically incapable of attempting another flight after just a few hours of rest.  SkyWest argued that Douglas did not engage in protected activity because Douglas’s alleged fatigue was not actual but only projected, and AIR 21 does not protect projected future unfitness to fly.  The ALJ rejected SkyWest’s argument, concluding that federal regulations confer “final authority and responsibility” on the pilot in command of the aircraft and thus, Douglas engaged in protected activity when he believed and reported that his crew members were unfit to make the 4:00 am flight.  The ARB affirmed the ALJ’s decision, finding substantial evidence supporting the ALJ’s findings that Douglas genuinely believed that he would be violating air safety regulations if he flew and that his belief was objectively reasonable given the impact of his fatigue on air safety.  For more information on AIR 21, visit The Employment Law Group® law firm’s Airline Whistleblower Practice at https://www.employmentlawgroup.com/what-we-do/whistleblower-protection-rewards/airline-safety-whistleblower-attorney/

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