McBride v. Gemini Air Cargo, 2004-AIR-7 (ALJ June 29, 2004)

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McBride v. Gemini Air Cargo, 2004-AIR-7 (ALJ June 29, 2004)

U.S. Department of Labor Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002 DOL Seal

Issue Date: 29 June 2004
Case No.: 2004-AIR-00007

................................................................
In the Matter of:

J. REED MCBRIDE, et al,
Complainants,

GEMINI AIR CARGO,
Respondent.
...............................................................

DECISION AND ORDER GRANTING
RESPONDENT'S THIRD MOTION FOR SUMMARY DECISION
AND CANCELLING HEARING

Complainants, J. Reed McBride, Jesus Pietri, Omar Tejada, and Homero Herrera, filed a second complaint on March 7, 2003 under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. § 42121 (hereinafter referred to as the "Act") alleging that Respondent, Gemini Air Cargo, refused to rehire them in retaliation for reporting safety concerns to the Federal Aviation Administration.¹

By Orders dated May 17, 2004 and June 2, 2004, the undersigned denied two motions for summary decision filed by Respondent holding, inter alia, that failure to rehire constitutes an adverse employment action that may support a finding of retaliatory discrimination in violation of the Act.

I
Third Motion for Summary Decision

Respondent filed a Third Motion for Summary Decision on May 28, 2004. Respondent argues that it did not take any adverse action against Complainants as "the undisputed facts actually show that Gemini never received applications for re-employment from any of the Complainants and, consequently, never even considered re-hiring them." Respondent's Motion at 2. Secondly, Respondent argues that Complainants did not file their complaint within ninety days of an adverse employment action as required by 49 U.S.C. § 42121(b)(1),² because, "contrary to Complainants' allegations – no personnel were hired by Gemini to replace Complainants during the 90 day period immediately preceding the filing of their complaint."

[Page 2]

Complainants filed a Response to Respondent's Third Motion for Summary Decision on June 7, 2004. They argue that, according to Section 3.20(c) of the Employee Handbook, Respondent's policy is to "observe recall procedures" based on the date of lay-off of former employees and performance appraisals. Complainants maintain that the provisions of the Handbook apply to all employee staff, "including the former maintenance representatives, mechanics and inspectors and not just pilots and flight crews."

Complainants also counter Respondent's argument that it hired no inspectors or maintenance representatives within 90 days immediately preceding the filing of their complaint. In support of their position, Complainants attached excerpts of the deposition transcript of Homero Herrera, who testified that certain part-time contractors were hired to take the place of certain employees within 90 days of Complainants' January 2002 lay-offs. As a result, Complainants assert that there are genuine issues of material fact such that summary decision is not proper.

Respondent filed a Reply to Complainants' Response to Gemini's Third Motion For Summary Decision on June 14, 2004. Respondent maintains that its Employee Handbook did not set forth a recall procedure for non-flight crew employees and it does not confer contractual rights upon employees. Moreover, Respondent asserts that there is no evidence that it hired inspectors or maintenance representatives within 90 days of the date of filing the March 7, 2003 complaint. In support of this assertion, Respondent attached the affidavit of Terry Gibson, Senior Generalist of Human Resources wherein she specifically states that, "[d]uring the period December 7, 2002 through March 7, 2003, Gemini hired no inspectors or maintenance representatives."

II
Discussion and conclusions

The second complaint in this case stems from a letter dated March 7, 2003 from J. Reed McBride to the Regional Supervisory Investigator for the Occupational Safety and Health Administration. McBride stated that he "learned on January 6, 2003 from several current employees at Gemini Air Cargo that their management, for a second and third time hired additional personnel to work in our positions after terminating us." He does not, however, specifically state that the second or third rounds of hiring occurred within 90 days immediately preceding the filing of this complaint. His non-specific assertion, when compared to Gibson's specific assertion that no inspectors or maintenance representatives were hired during that 90 day period of time, does not yield a genuine issue of material fact.

Moreover, Complainants' reference to Herrera's deposition testimony does not support their position on the timeliness of their complaint. Herrera testified that he knew of replacement personnel hired within 90 days of his January 2002 lay-off. When asked whether he knew of any personnel hired from December 7, 2002 to March 7, 2003, Herrera testified that he did not. Herrera's testimony is not in conflict with Gibson's statement that no inspectors or maintenance representatives were hired during that 90 day period of time.

[Page 3]

Thus, the record, including the uncontradicted, sworn statement of Respondent's witness, shows that no inspectors or maintenance representatives were hired within 90 days of the filing of Complainants' second complaint on March 7, 2003. Accordingly, Claimants have not shown that they suffered an adverse employment action within ninety days of the filing of their complaint. This second complaint must be dismissed as time-barred.³ Accordingly,

ORDER

IT IS ORDERED that Gemini's Third Motion for Summary Decision is granted and this complaint is dismissed as time-barred; and

IT IS FURTHER ORDERED that the hearing scheduled for August 10-11, 2004 in Miami, Florida is hereby cancelled.

Thomas M. Burke
Associate Chief Administrative Law Judge

[ENDNOTES]

¹ Complainants filed their first complaint against Respondent, Gemini Air Cargo, on April 4, 2002 alleging that they were laid off in retaliation for reporting safety concerns to the Federal Aviation Administration. By letter dated September 30, 2002, the U.S. Department of Labor's Deputy Regional Administrator concluded that the complaint was time-barred as it was filed "92 days from the date of the adverse action." Moreover, the Deputy Regional Administrator concluded that the terminations were due to economic hardship faced by Respondent in the wake of September 11, 2001, and not due to retaliation. No appeal to this determination was filed.

² 49 U.S.C. § 42121(b)(1) provides in part: (1) Filing and notification. A person who believes that he or she has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, not later than 90 days after the date on which such violation occurs, file (or have any person file on his or her behalf) a complaint with the Secretary of Labor alleging such discharge or discrimination.

³ Although this matter is dismissed as time-barred, Respondent's assertion, that the Employee Handbook contains only policies and procedures for recalling employees and did not confer any rights upon its employees, would have constituted insufficient grounds upon which to grant summary decision. A genuine issue of material fact exists regarding whether Respondent comports with, or routinely deviates from, the written policies and procedures in the Handbook.