ARB CASE NO. 02-028
ALJ CASE NO. 2001-AIR-3
DATE: January 30, 2004
In the Matter of:
WILLIAM H. PECK,
COMPLAINANT,
v.
SAFE AIR INTERNATIONAL, INC.
d/b/a ISLAND EXPRESS,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: William H. Peck, Ft. Lauderdale, Florida
For the Respondent: Brian R. Kopelowitz, Esq., Gelch, Taylor, Giulianti, Kopelowitz & Ostrow, P.A., Fort Lauderdale, Florida
FINAL DECISION AND ORDER
This case arises under section 519 (employee protection provision) of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C.A. § 42121 (West 2003). Regulations implementing section 519 appear at 29 C.F.R. Part 1979 (2003).
Complainant William H. Peck filed a complaint of unlawful discrimination against Respondent Safe Air International, Inc. d/b/a Island Express (Island Express), which after investigation the Occupational Safety and Health Administration (OSHA) found to be without merit. Following timely objection, an Administrative Law Judge (ALJ) heard the complaint and ultimately issued a Recommended Decision and Order (R. D. & O.) denying the complaint. Peck petitioned for review of the R. D. & O. and filed a letter in opposition. Island Express filed a reply brief in response. We affirm the ALJ's decision as described below.
BACKGROUND
1. Statement of facts
The ALJ's R. D. & O. contains a comprehensive summary of the testimony and documentary evidence (R. D. & O. at 6-19) and factual findings that are supported by substantial evidence (id. at 20-25). We briefly summarize the facts relevant to Peck's discharge.
1 Federal Aviation Administration (FAA) regulations (49 C.F.R. Parts 119 and 135 (2003)) require air carrier certificate holders to have sufficient qualified management and technical personnel to ensure the safety of their operations, including qualified personnel "serving in" the position of Director of Maintenance. 14 C.F.R. § 119.69(a). These personnel, including the Director of Maintenance, must meet certain general criteria. 14 C.F.R. § 119.69(d). The certificate holder must list the duties, responsibilities, and authority of the personnel, identify the personnel, and notify the certificate-holding FAA district office of any change in personnel. 14 C.F.R. § 119.69(e)(1)-(3). A certificate holder may request a deviation to employ a person who does not meet the appropriate airmen experience, managerial, or supervisory requirements if the person meets comparable requirements. 14 C.F.R. § 119.71(f).
2 Ferrara determined that Island Express later overflew the inspection by several hours between her inspection on May 15 and May 19, and she completed an enforcement report because Island Express had violated FAA regulations. T. 70-75. In particular, Ferrara found that Island Express "operated three flights under Part 135 with an inspection overdue" in violation of 49 C.F.R. §§ 135.25(a)(2), 135.143(a), 135.413(a)(2), and 135.419(g). CX 13.
3 The preamble to the regulations notes that "the substantial evidence standard" also is applied under the employee protection provision of the Surface Transportation Assistance Act (STAA). The STAA regulations state: "The findings of the administrative law judge with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be considered conclusive." 29 C.F.R. § 1978.109(c)(3) (2003).
4Compare Rutherford Food Corp. v. McComb, 331 U.S. 722, 728 (1947). In construing the term "employee" expansively under the Fair Labor Standards Act, the Court relied on the statutory definition of the term employee as including "any individual employed by an employer" and the statutory definition of the term "employ" as meaning "suffer or permit to work." 29 U.S.C.A. § 203(e) and (g). In Darden, the Court commented: "This latter definition [of the term employ], whose striking breadth we have previously noted, stretches the meaning of ‘employee' to cover some parties who might not qualify as such under a strict application of traditional agency principles." 503 U.S. at 326 (citation omitted).
5 The ALJ found that the complaint about the possibility of overflying an inspection was protected because it was objectively reasonable and that the complaint about the Hobbs meter was unprotected because Peck failed to demonstrate its objective reasonableness. R. D. & O. AT at 31-32. We include both as protected activity. Overflying the mandated inspection could occur either because Island Express refused to provide Peck with flight times on a daily basis as required by FAA regulation or because Island Express falsified the flight times by deactivating the Hobbs meter. Peck knew that an inspection was imminent due to the Cessna's flight schedule. Peck also knew about timekeeping discrepancies in the logs, possibly indicating tampering, due to his efforts to assist David Bettencourt, the owner of the Cessna, in obtaining records. The May 15 complaint to the FAA was in reality a single substantive complaint about the air carrier safety violation of overflying an inspection, which constitutes protected activity under AIR21 section 519.
6 Ferrara also testified that she did not recall if she gave Peck the Hobbs time during the telephone conversation. T. 58.
7 The ALJ also found that the Complainant had not met his ultimate burden of proof. However, we clarify one point. It is not necessary for the Respondent to produce clear and convincing evidence of a legitimate non-discriminatory reason to rebut the Complainant's prima facie case. See R. D. & O. at 28-29. That heightened burden of proof does not come into play until the Complainant has demonstrated that protected activity was a contributing factor in the termination, see 49 U.S.C.A. § 42121(b)(2)(B)(iii)-(iv), which we have determined was not the case here.