Former Portneuf Mechanic Awarded $485,000 after Being Fired for Reporting Unsafe Helicopters

February 04, 2011

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.

For more information on AIR-21 or reporting unsafe aircraft, click here.

Dept. of Labor ARB Affirms Broad Scope of Adverse Employment Actions Under AIR 21 in Whistleblower Case Against American Airlines

January 13, 2011

The U.S. Department of Labor Administrative Review Board (ARB) held in the case of Williams v. American Airlines that a written warning or counseling session conducted by an employer is presumptively an adverse employment action against an employee where:

1. it is considered discipline by policy or practice,
2. it is routinely used as the first step in a progressive discipline policy, or
3. it implicitly or expressly references potential discipline.

The ARB further clarified the broad definition for adverse employment actions under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21):

To settle any lingering confusion in AIR 21 cases, we now clarify that the term “adverse actions” refers to unfavorable employment actions that are more than trivial, either as a single event or in combination with other deliberate employer actions alleged. . . . While we agree that it is consistent with the whistleblower statutes to exclude from coverage isolated trivial employment actions that ordinarily cause [trifling] harm or none at all to reasonable employees, an employer should never be permitted to deliberately single out an employee for unfavorable employment action as retaliation for protected whistleblower activity.  The AIR 21 whistleblower statute prohibits the act of deliberate retaliation without any expressed limitation to those actions that might dissuade the reasonable employee.  Ultimately, we believe our ruling implements the strong protection expressly called for by Congress.

The complainant is Brian Williams, a licensed aviation maintenance technician at John F. Kennedy Airport (JFK), who alleges that American Airlines, Inc. violated the whistleblower protection provisions of AIR 21 when his supervisor disciplined him for ordering the re-inspection of an aircraft’s brakes.  During the first inspection of the aircraft, Williams and another mechanic, Joe Urso, determined that the aircraft’s brakes needed to be changed.  Because the brake change took longer than usual, Williams and Urso believed another inspection was required.  Their immediate supervisor disagreed and reported the incident to Williams’s direct supervisor who then determined that Williams had a job performance issue and scheduled a counseling session with Williams.  The counseling session resulted in Williams having negative remarks entered into his personnel record.

AIR 21 provides that “[n]o carrier or contractor or subcontractor of an air carrier may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment” because the employee has engaged in certain protected activities, including providing information to the employer or the Federal government about a violation, or alleged violation of any Federal law relating to air carrier safety.  Department of Labor regulations define “discrimination” under AIR 21 to include efforts by the employer “to intimidate, threaten, restrain, coerce, blacklist, discharge or in any other manner discriminate against any employee” because the employee engaged in protected activity.  As a matter of law, AIR 21 includes reprimands (verbal or written), as well as counseling sessions that are coupled with references to potential discipline.

Notably, the ARB also rejected the Sixth Circuit’s holding in Melton v. Yellow Transp. Inc. by stating:

We believe it is irrelevant whether the employer’s personnel policies allow its employees to appeal or formally challenge a written warning.  A great number of workers are “at will” employees who have no right to appeal a suspension or termination, much less a written warning.  Personnel policies are often drafted solely by the employer and hinge on the employer’s unilateral assessment as to the extent of appellate procedures it can address given limited resources.

For more information about AIR 21 or to seek assistance with reporting violations.

U.S. OSC Affirms Whistleblower’s Warning that FAA Ignored Violations

September 29, 2010

The U.S. Office of Special Counsel stated in a press release that a Federal Aviation Administration (FAA) safety inspector was correct when blowing the whistle on the FAA’s overlooking of safety violations at Erie Aviation, a repair station operator that services commercial airlines.  The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, also known as AIR21, protects employees who expose air carrier safety violations.

Delta Subsidiary Ordered to Pay Ramp Agent $67,000 for AIR21 Violations

July 01, 2010

On June 25, 2010, the Department of Labor ordered DAL Global Services, a wholly owned subsidiary of Delta Air Lines, to pay ramp agent Steven Gray over $67,000 after he was fired in retaliation for reporting numerous safety complaints.  The damages include three years of front pay.

The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, also known as AIR21, protects employees who expose air carrier safety violations.

OSHA Orders Worldwide Jet Charter to Reinstate Pilot Fired for Whistleblowing

June 08, 2010

On May 5, 2010, OSHA ordered Worldwide Jet Charter LLC to reinstate a pilot discharged for reporting alleged violations of FAA regulations. The order requires the employer reimburse the pilot for lost wages and pay compensatory damages of more than $21,000 and attorney’s fees of $24,610.  Under the Wendell H. Ford aviation Investment and Reform Act for the 21st Century (AIR21), an employer is prohibited from retaliating against an employee who reports suspected violations of FAA regulations. 

The employment lawyers at The Employment Law Group® law firm have experience litigating numerous types of whistleblower claims including nuclear, railroad, and airline whistleblower claims.  To learn more about TELG’s Airline Whistleblower Practice, click here.

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

October 12, 2009

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/

Whistleblower Speaks to ABC2 News About His Warnings on Aircraft Safety Issues Before Medevac

October 09, 2009

In an interview with ABC2 News, whistleblower Pete Peterson speaks about the crash of Trooper 2 that led to four deaths last year.  Peterson was the Maryland State Police (“MSP”) Pilot who wrote the whistleblower letter to the Department of Transportation’s (“DOT”) Inspector General last September before the crash of Trooper 2.  In his letter, Peterson raised concerns about MSP’s lack of regulatory compliance and safety issues affecting MSP’s aircraft.  Seventeen days after Peterson’s disclosure, an MSP helicopter crashed in Prince George’s county, killing four people.  Peterson’s whistleblower letter became public shortly after the crash.  More than a month later, MSP terminated Peterson for insubordination and not cooperating with the organization’s internal crash investigation.  Peterson has filed a complaint under AIR 21’s whistleblower protection statutes, alleging that the termination of his employment was in retaliation for his disclosure to DOT.  Peterson is being represented by R. Scott Oswald and Adam Augustine Carter of The Employment Law Group® law firm.

OSHA Orders Southern Air to Pay $400,000 to Airline Whistleblower

March 02, 2009

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has ordered Southern Air, Inc. to pay more than $400,000 in lost wages, back pay, damages, and attorney fees to a flight crew member who alleged that he was terminated after raising concerns to management about inadequate rest breaks and work hours in excess of those permitted under the Federal Aviation Administration rules.  After its investigation, OSHA determined that Southern Air violated the whistleblower provisions of the Wendell H. Ford Aviation Investment and Reform Act (AIR21) when it terminated the flight crew member for raising legitimate safety concerns about the working conditions at Southern Air.  OSHA’s order is significant because it reminds employers that there is no tolerance for retaliation against employees who raise legitimate health and safety concerns.  For information about The Employment Law Group® law firm’s Airline Whistleblower Practice, click here.