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Issue date: 21Nov2001
CASE NO.: 2001-AIR-2
IN THE MATTER OF:
GLYN TAYLOR, JR.
Complainant
v.
EXPRESS ONE INTERNATIONAL, INC.
Respondent
ORDER DENYING MOTION FOR
SUMMARY DECISION
On November 2, 2001, Respondent filed a "Motion For Summary Decision and Brief In Support." Respondent alleges that Complainant has failed to meet his substantive burden by timely informing Respondent of a serious safety violation on September 18, 2000, which led to his termination on September 25, 2000. It is also alleged that Complainant failed to meet his procedural burden by timely filing a complaint under the Wendall H. Ford Aviation Investment and Reform Act for the 21st Century, Pub. L. No. 106-181, 114 STAT. 61 (herein AIR21) with the Department of Labor (herein DOL) within the 90-day time limits prescribed by the statute.
Complainant's failure to report the safety incident purports to be the legitimate, non-discriminatory business reason for his termination from Respondent.
On November 13, 2001, Complainant filed a "Response to Respondent's Motion."
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Respondent contends that Complainant flew and landed an Express One plane with a tail stand installed which should have been identified and included in the pre-flight checklist and removed prior to flight pursuant to the Federal Aviation Administration (herein FAA) requirement. It is asserted that Complainant made an entry of the installed tail stand in his Aircraft Log Book but did not inform Respondent's Vice-President of Flight Operations of the incident despite two separate discussions with the latter during Complainant's route or flight assignments. Complainant purportedly did not acknowledge the incident until specifically questioned about it and thereafter provided a written report at Respondent's request which allegedly contained "minimal factual information." On September 25, 2000, Complainant was terminated by Respondent pursuant to the "at will" provision of Express One's policies.
In his response, Complainant avers that on September 18, 2000, the tail stand was "overlooked by the flight engineer on his pre-flight inspection" and remained attached to the aircraft for the "duration of the flight." Complainant spoke with Operations but contends the versions of the conversation "differ greatly." Although he was instructed to prepare a written incident report, he purportedly was told "that nothing would come of it." He acknowledged receiving his termination letter on September 29, 2000.
Respondent concedes that it received notification of Complainant's complaint by letter dated February 9, 2000, from the Regional Supervisor of the Occupational Safety and Health Administration (herein OSHA). Respondent argues that AIR21 requires the filing of a Complaint with the Secretary of Labor within 90 days after the date of an alleged violation, which Complainant failed to do. Moreover, Respondent represents that the DOL investigative file of Complainant's case "contains copies of letters sent to other governmental agencies, including the FAA, but there is no complaint form filed with the DOL and no indication of any oral or written complaint made directly to the DOL . . . prior to December 24, 2000," 90 days after his September 25, 2000 termination.
Respondent acknowledges that, in deposition, Complainant testified he telephoned OSHA to report his termination for "raising safety concerns," but could not remember the name of the person contacted. (Respondent's Exhibit No. 8, pp. 16-17). Complainant could not remember if he was asked to send a report in or given a file number or tracking number. Id., at 18. His next contact with OSHA occurred in January 2001 when the OSHA investigatior informed him of the receipt of documents from the FAA and his assignment to investigate Complainant's allegations. Id. at 18-19. Thus, Respondent argues that Complainant failed to file a complaint with DOL as required by AIR21 and that the Secretary of Labor's findings support a conclusion that Complainant's complaint of October 18, 2000 was "timely filed by reference" with the Inspector General of the FAA.
Conversely, Complainant contends he filed timely complaints with OSHA and the FAA. He asserts he telephoned the Austin, Texas office at 3:14 p.m. on September 29, 2000, and spoke to Jerry Keans or Kearns, according to "my notes," which were not provided with his instant Response. (Complainant's Exhibit No. 7). Moreover, the substance of the "contact" with OSHA is not otherwise delineated in Complainant's Response. He also filed an Inspector General Complaint Form on October 18, 2000, alleging his termination for reporting matters of FAA Compliance and Safety. (Complainant's Exhibit No. 7). Further, Complainant avers Respondent had knowledge of "Complainant's" allegations to FAA based on FAA's letter of October 5, 2000 to Respondent, which pre-dates Complainant's October 18, 2000 Complaint. (Complainant's Exhibit No. 4).
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Lastly, Respondent contends Complainant cannot show that he engaged in activity protected by AIR21 and that his participation in such activity was a "contributing factor" in the decision to terminate him. On the other hand, Complainant contends he engaged in internal complaints to Respondent and external complaints to the FAA about safety matters.
1Delegation of Authority and Assignment of Responsibility to the Assistant Secretary For Occupational Health and Safety, 65 Fed. Reg. 50017 (August 16, 2000).