Respondent also points to his own threatening behavior to prove that Complainant was fired for refusing to fly and not for reporting safety violations. Complainant's own state law suit alleges that Respondent caused him to suffer emotional distress by pressuring him to fly. Complainant also stated in deposition testimony that Respondent had given him an ultimatum on April 13, 2000, stating that Complainant would be fired if he did not fly with the other pilot on April 14, 2000. Respondent argues that this threatening behavior proves Respondent wanted Complainant to continue flying.

   Complainant states there is no evidence that he ever refused to fly and claims Respondent fired him for reasons involving his complaints to the FAA. Complainant also argues that a "refusal to fly" is protected activity under the statute. This second argument will be addressed later. A claim alone is not enough to defeat the motion for summary judgment. Complainant must provide sufficient facts to show there is a genuine issue for trial in order to overcome summary judgment. Smith v. US. at 1, (citing T.W. Electric Service, Inc. v. Pacific Elec. Contractors Ass'n., 809 F.2d 626, 630 (9th Cir.1991). I find that Claimant has met this burden.

   It is undisputed that Complainant reported his concerns to the Respondent and the FAA. This activity is clearly covered under 49 U.S.C. §42121. Respondent correctly argues, however, that summary judgment should be granted if he can prove by "clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior." 49 U.S.C. §42121(b)(B)(ii). Respondent has attempted to prove this by arguing that Complainant was only fired for refusing to fly. For the reasons stated below, I find there is not clear and convincing evidence to support this claim.

   Whether Complainant ever refused to fly is unclear. Complainant stated in testimony that he wrote in a letter to the FAA that he had refused to fly with a fellow pilot. This statement is called into question by later testimony that Complainant, along with two other pilots, told Respondent that they did not "want" to fly with Russell, but he never stated a refusal. This is supported by evidence that all three pilots continued to fly with Russell after they had voiced their concerns. Also, as noted, the letter was sent to the FAA and not to Respondent. Whether this refusal was ever actually made to Respondent is a question of fact.

   On April 13, 2000, Complainant also sent a fax to Respondent which stated, "Until I am provided with this information I am not able to conduct flight operations with Mr. Russell." On the same date, three telephone conversations took place between Complainant and the Respondent. Complainant has testified that he asked Respondent if he could see Russell's medical waiver, and Respondent grudgingly agreed to give it to him. Complainant and his wife have both testified that Complainant never refused to fly during any of the telephone conversations. In the context of all that had occurred that day, a question of fact remains as to what the fax communication meant in the context of the communications that took place. Whether the fax message was a refusal to fly or an initial request to see Russell's medical waiver is disputable. Respondent states in his own deposition testimony that he was unsure of what Complainant was trying to communicate in his fax.

   Finally, there is evidence supporting Complainant's claim that he was fired because he reported his safety concerns. A former client of Respondent's testified that Respondent stated "he would never use the services of Messrs. Foster or Lentz again because of the safety concerns they raised against Sky King, Inc." Considered in a light most favorable to Complainant, this testimony supports the claim that Complainant's reporting activity played a "contributing factor" in his dismissal. Even if Complainant was fired for refusing to fly and for reporting unsafe conditions, summary judgment still would be inappropriate. Clear and convincing evidence has not been presented that would allow me to find that Complainant was fired only for his alleged refusal. Therefore, I hold a genuine issue of material fact remains as to why Complainant was fired from his position.

   Moreover, assuming that Complainant's statements to Respondent could be interpreted as a refusal to fly, those statements may also be protected under 49 U.S.C. § 42121 if the refusal was motivated by his belief that flying would subject himself and his passengers to unsafe conditions. A literal reading of the statute does not appear to include "refusal to work" within those activities protected. Historically, however, the language in whistle blower statutes has been interpreted expansively to afford the most protection to the employee and ultimately to the public. The language used by the court in Neil v. Honeywell, Inc. (N.D. Ill 1993) 826 F. Supp. 266, 271, is particularly telling:

    [T]he great weight of precedence on this issue makes it clear that federal protection laws are to be broadly construed to cover internal whistleblowers, even where the specific conduct at issue does not fall within the literal reading of the statute.

   Of significance also is the disposition of the Secretary of Labor to broadly construe statutes protecting the whistleblower rights of workers, particularly when those rights relate to workers' safety. The Secretary in Pensyl v. Catalytic, Inc. 83-ERA-2 interpreted language of a whistleblower protection provision in the Energy Reorganization Act language that is similar to that here to include the refusal to work within its protective activities. The Secretary, reversed a decision of an Administrative Law Judge finding that a refusal to work without respirators during the cleanup of radioactive contamination of the Three Mile Island nuclear power plant was not protected activity under the ERA. The Administrative Law Judge recommended dismissal of Pensyl's complaint because Pensyl did not allege that he commenced, caused or was involved in a proceeding under the Act and Pensyl's refusal to work was not a subject which could be tried under the statute. The Secretary disagreed, holding that under the ERA, the refusal to work is protected if the complainant reasonably believes that working conditions are unsafe or unhealthful. Subsequent cases where the Secretary considered the refusal to work to be protected under the ERA are: Stockdill v. Catalytic Industrial Maintenance Co. Inc., 90-ERA-43, Sec. Decision, June 19, 1995; Sartain v. Bechtel Construction Corporation, Case No. 87-ERA-37, Sec. Decision, February 22, 1991; Wilson v. Bechtel Construction, Inc., Case No. 86-ERA-34, Sec. Decision, Feb. 9, 1988; Smith v. Catalytic, Inc., Case No. 86-ERA-13, Sec. Decision and Remand Order, May 28, 1986. A refusal to work has been found to be protected activity under the whistlleblower provisions of other environmental protection statutes administered by the Department of Labor. See the Secretary's decision under the Clean Air Act in Sutherland et al. v. Spray Systems Environmental et al., 95-CAA-1, Sec. Decision, February 26, 1996, and the Administrative Review Board's decision under the Solid Waste Disposal Act, Timmons v. Franklin Electric Cooperative, 97-SWD-2, ARB Decision, December 1, 19987.

   Courts have also found a broad interpretation necessary and in line with the intent of the statute in cases under the Federal Coal Mine Safety and Health Act. Those Courts have held that when asserted in proper circumstances, refusal to work is a protected activity.

According to the Commission precedent, the Mine Act protects the right to refuse work under conditions that a miner reasonably and in good faith believes to be hazardous...The Mine Act does not state this right explicitly, but the legislative history of the statute unequivocally supports the Commission's view. Simpson v. Federal Mine Safety & Health Review Commission, 842 F.2d 453, 458 (D.C.Cir.1989).

   Considering that the purpose of this Act is the safety of the traveling public as well as the safety of those who work in the aviation industry, the rationale for considering a refusal to work to be an activity protected by the Act is at least as persuasive as in those areas governed by the environmental protection statutes. There is no apparent reason why employees who work in the airline industry should not be afforded the same protection. Furthermore, I consider the right of refusal to be implicit in the statute. An alternative construction would require an employee who has just reported an unsafe flying condition with an airplane to then strap himself into that very same airplane if the employer so commands or be subject to dismissal for refusing to fly. Such an interpretation both undermines the intent of the statute and stretches into the realm of absurdity.

   Respondent's Motion for Summary Judgment is DENIED. For the same reasons discussed above, Respondent's Motion to Dismiss is also DENIED.

      THOMAS M. BURKE
      Associate Chief Administrative Law Judge