Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue date: 19Dec2001
CASE NO.: 2001 AIR 3
In the Matter of
WILLIAM H. PECK Complainant
v.
SAFE AIR INTERNATIONAL, INC.
d/b/a ISLAND EXPRESS
Respondent
APPEARANCES:
Mr. William H. Peck, Pro Se
Mr. Brian Kopelowitz, Attorney
For the Respondent
Ms. Krista M. Fox, Attorney
For the Federal Aviation Administration (pre-hearing motion)
Mr. Rafael Batine, Attorney
For the U.S. Department of Labor (pre-hearing motion)
BEFORE:
Richard T. Stansell-Gamm
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the employee protection provision of Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Public Law 106-181, 49 U.S.C. § 42121, ("AIR 21"or "Act"). This statutory provision, in part, prohibits an air carrier, or contractor or subcontractor of an air carrier, from discharging or otherwise discriminating against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee provided to the employer or Federal Government information relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration ("FAA") or any other provision of Federal law relating to air carrier safety.
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Procedural Background
On June 28, 2000, Mr. William Peck filed a complaint with a representative of the Secretary, U.S. Department of Labor ("DOL"), alleging that Island Express had terminated him from employment because he had contacted the FAA on May 15, 2000 and indicated that Island Express was not performing timely inspections on its aircraft. On April 26, 2001, the Regional Administrator for the Occupational Safety and Health Administration ("OSHA"), DOL, who investigated Mr. Peck's complaint, notified the parties that she found no merit to the complaint. Specifically, the Regional Administrator determined that Island Express had no knowledge of Mr. Peck's protected activity at the time he was terminated. Instead, based on an independent contractor's finding upon inspection of the company's aircraft and its maintenance records that the plane had not been maintained in compliance with FAA standards since February 2000, Island Express terminated Mr. Peck's employment as the Director of Maintenance for the company's aircraft on May 15, 2000. On June 16, 2001, in response to the Regional Administrator's notice, Mr. Peck objected to the stated findings and requested an administrative hearing.
As the Director of Maintenance for Island Express' aircraft, Mr. Peck had to accomplish an FAA regulatory-mandated inspection of the plane after every 60 hours of flying time. In the early part of May 2000, based on his knowledge of the plane's schedule, Mr. Peck asked for the aircraft's actual flying time so he could ensure a timely inspection. When the company's Director of Operations did not give him the requested time, Mr. Peck did his own calculation and became concerned that the plane may be flown beyond the 60 hour threshold for the next inspection. Consequently, in the early morning of May 15, 2000, Mr. Peck called an FAA inspector and requested her help in determining whether the aircraft was over-flying the maintenance inspection point. In response, on the same day, the FAA inspector did a ramp inspection of the aircraft and its records. After the inspection, with the company chief pilot present, the FAA inspector called Mr. Peck with the aircraft's flight time. Mr. Peck then spoke with the chief pilot who indicated the aircraft needed some maintenance work since the FAA found some discrepancies. Two days later, the Island Express terminated his employment as the company's Director of Maintenance as of May 15, 2000.
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Due to the timing of his termination in relation to the FAA inspection and the presence of the company chief pilot when the FAA inspector called Mr. Peck on May 15th, Mr. Peck asserts his termination at about the same time was not just a coincidence. He was separated from his employment due to his complaint to the FAA and not the purported unwarranted maintenance recommendation Island Express has presented as one the justifications for his termination.
Starting August 1999, Mr. Peck received a pay check from Island Express for aircraft maintenance. But in the spring of 2000, due to the company's financial problems, Mr. Peck indicated he did not need a salary as long as they shared a hanger. There was no contract setting out, or changing, their relationship.
If Mr. Peck prevails in his proving his complaint, he does not desire to return to work with Island Express. Instead, he seeks compensatory damages equal to his lost salary with Island Express at his usual ,000 weekly salary, plus interest and litigation expenses.4
Mr. Peck's attempt to seek whistle blower protection and relief under AIR 21 fails for several reasons. First, and principally, Island Express had no knowledge of Mr. Peck's complaint to the FAA. Since the FAA does random ramp inspections, the fact the FAA conducted an inspection of the Island Express aircraft on May 15th did not give the company any reason to believe Mr. Peck, or anyone, had made a complaint. Consequently, when Island Express terminated Mr. Peck, the company had no knowledge of his protected activity.
Second, Mr. Peck was fired for a number of legitimate reasons unrelated to his complaint to the FAA. By May 2000, the relationship between Mr. Peck and Island Express had deteriorated badly. About that time, on May 15th, not trusting Mr. Peck's finding that the aircraft needed expensive cylinder replacement, the company had an independent aircraft mechanic inspect the plane. This maintenance expert advised that the aircraft's cylinder's were fine and did not need replacement. At that point the operators of Island Express concluded they could no longer trust Mr. Peck as their maintenance chief. As a result, the company sent Mr. Peck a letter terminating his services.
Third, after February 2000, Mr. Peck really was not even an employee of Island Express. Instead, based on an arrangement between Mr. Peck and Island Express, he worked as an independent contractor providing maintenance service to Island Express in exchange for his use of a hanger provided by Island Express. So, on May 15, 2000, Island Express simply terminated his services as an independent maintenance contractor.
Ultimately, because Mr. Peck has failed to prove that Island Express didn't know about his protected activity, the reason they fired him is irrelevant. Absent proof of the employer's knowledge of the FAA complaint by Mr. Peck, his discrimination complaint under AIR 21 fails. In addition, Island Express has demonstrated by clear and convincing evidence that it had independent grounds for firing Mr. Peck. Consequently, Island Express requests that in addition to the denial of his claim, Mr. Peck be ordered to pay attorney fees and costs as authorized by AIR 21. Finally, even if Mr. Peck proved his complaint, his relief is limited to half the space of the hanger that he shared with Island Express.
1. Whether the Complainant, Mr. William Peck, was an employee of the Respondent, Island Express, on May 15, 2000.
2. Whether the Complainant, Mr. William Peck, engaged in a protected activity under AIR 21 on May 15, 2000.
3. If the Complainant, Mr. William Peck, engaged in a protected activity as an employee of the Respondent, Island Express, whether the Respondent was aware of the protected activity and the protected activity contributed in part to the decision by the Respondent to terminate the services of the Complainant.
4. If the Complainant, Mr. William Peck, establishes a prima facie case of a violation of the employee protection provisions of AIR 21, whether the Respondent, Island Express, has demonstrated by clear and convincing evidence that it would have terminated the Complainant, even in the absence of the protected activity.
5. If the Respondent, Island Express, presents clear and convincing evidence of a legitimate motive for terminating the services of the Complainant, Mr. William Peck, whether the Complainant establishes by the preponderance of the evidence that the Respondent retaliated against him for engaging in protected activity.
6. Whether the compliant under AIR 21 by the Complainant, Mr. William Peck, was frivolous or brought in bad faith.
Preliminary Evidentiary Issues
Mr. Peck attached to his written closing argument, dated September 22, 2001, three documents that he requested I consider. The first document contained a page from his previously admitted exhibit, CX 10, with two highlighted portions. Since CX 10 is already in the record, I will not admit the newly submitted document. I will just consider the highlighted sections as part of Mr. Peck's closing statement. I have marked the attached, highlighted documented as CX 18, offered post-hearing, not admitted.
Since Mr. Peck has failed to establish that he was an employee of Island Express at the time he made his call to the FAA inspector, his retaliatory discrimination complaint under AIR 21 fails. However, for the sake of completeness and to provide a hopefully complete and informative opinion to both parties, I will proceed to the next issue.
Prima Facie Case
Due to the recent implementation of the AIR 21 employee whistle blower provisions, neither regulations nor judicial precedent are available as guides for adjudicating Mr. Peck's complaint that Island Express violated the employee discrimination prohibition in AIR 21. Consequently, I turn to adjudicatory scheme established for nuclear and environmental whistle blower cases which are adjudicated under 29 C.F.R. Part 24.
In such cases, the complainant has an initial burden of proof to make a prima facie case by showing (1) the complainant engaged in a protected activity; (2) the respondent knew the employee engaged in the protected activity; (3) the complainant suffered an unfavorable personnel action; and, (4) circumstances are sufficient to raise the inference that the protected activity was likely a contributing factor in the unfavorable personnel action. 49 U.S.C. §§ 42121 (a) (1) to (4), and (b) (2) (B) (i) and (iii), 29 C.F.R. §24.5 (b) (2) (i) to (iv), and Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996).
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Respondent's Burden to Produce Evidence
If the complainant presents a prima facie case showing that protected activity was likely a contributing factor in the unfavorable personnel action (an illegitimate motive caused the personnel action), the respondent then has an opportunity to demonstrate by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity. 49 U.S.C. §§ (b) (2) (B) (ii) and (iv), and 29 C.F.R. §24.5 (c) (1). In other words, the respondent may avoid liability due to the establishment of a prima facie case by producing sufficient evidence that clearly and convincingly shows a legitimate purpose or motive for the personnel action. See Yule v. Burns International Security Service, 93-ERA-12 (Sec'y May 24, 1995). Although there is no precise definition of "clear and convincing," that evidentiary standard falls between preponderance of the evidence and beyond a reasonable doubt. Yule at 4.
Complainant's Ultimate Burden of Persuasion
If the respondent successfully produces clear and convincing evidence of a legitimate motive for the personnel action, then the focus returns to the complainant's ultimate burden of proof to demonstrate that the respondent's stated legitimate reason is pretext. In reviewing the numerous cases on the shifting burden of production and the ultimate burden of proof, the United States Court of Appeals for the Eight Circuit in Carroll v. USDOL, 78 F. 3d 352, 356 (8th Cir. 1996) (case below Carroll v. Bechtel Power Corp., 91-ERA 46 (Sec'y February 15, 1995)) observed:
But once the employer meets this burden of production, "the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981) (applying McDonnell Douglas test) (footnote omitted); see also St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742, 2747 (1993) (applying McDonnell Douglas test). The Couty/McDonnell Douglas framework and its attendant burdens and presumptions cease to be relevant at that point, Hicks, 113 S. Ct. at 2749, and the onus is once again on the complainant to prove that the proffered legitimate reason is a mere pretext rather than the true reason for the challenged employment action. Burdine, 450 U.S. at 256. While Couty allows the complainant to shift the burden of production to the employer by establishing a prima facie case, the ultimate burden of persuasion remains with the complainant at all times. Hicks, 113 S. Ct. at 2747; Burdine, 450 U.S. at 253.13
At this point of the analysis, the fact the complainant had established a prima facie case becomes irrelevant. Instead, the trier of fact must determine the ultimate issue, whether the complainant has proven by a preponderance of the evidence that the respondent retaliated against him or her for engaging in an protected activity. Carroll at 356.
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Issue No. 2 - Protected Activity
As mentioned above, the first requisite element for a prima facie case is a protected activity. The Secretary has broadly defined a protected activity as a report of an act which the complainant reasonably believes is a violation of the subject statute. While it doesn't matter whether the allegation is ultimately substantiated, the complaint must be "grounded in conditions constituting reasonably perceived violations" Minard v. Nerco Delamar Co., 92-SWD-1 (Sec'y Jan. 25, 1995), slip op. at 8. The alleged act must implicate safety definitively and specifically. American Nuclear Resources v. U.S. Dept. of Labor, 143 F.3d 1292 (6th Cir. 1998), citing Bechtel Construction Co. v. Secretary of Labor, 50 F.3d 926 (11th Cir. 1995). In other words, the complainant's concern must at least "touch on" the subject matter of the related statute. Nathaniel v Westinghouse Hanford Co., 91-SWD-2 (Sec'y Feb. 1, 1995), slip op. at 8-9; and, Dodd v. Polysar Latex, 88-SWD-4 (Sec'y Sept. 22, 1994). Additionally, the standard involves an objective assessment. The subjective belief of the complaint is not sufficient. Kesterson v. Y-12 Nuclear Weapons Plant, 95-CAA-12 (ARB Apr. 8, 1997).
The implied purpose of the employee protection provisions of AIR 21, to encourage the reporting of matters involving or relating to violations of any FAA order, regulation, or standard concerning air carrier safety also affects the scope of protected activity. 49 U.S.C. § 42121 (a) (1). The Supreme Court noted in a parallel statute, that the statute's language must be read broadly because "[a] narrow hyper technical reading" of the employee protection provision of the Act would do little to effect the statute's aim of protecting employees who raised safety concerns. Kansas Gas & Electric Company, 780 F.2d 1505 (10th Cir. 1985), cert. denied 478 U.S. 1011 (1986). Such statutes have a "broad, remedial purpose for protecting workers from retaliation based on their concerns for safety and quality." Mackowiak v. University Nuclear Systems, 735 F.2d 1159 (9th Cir. 1984). As a results, the courts and the Secretary have broadly construed the range of employee conduct which is protected by the employee protection provisions contained in environmental and nuclear acts. See S. Kohn, TheWhistle Blower Litigation Handbook, pp. 35-47 (1990).
Although the above principles were developed in environmental whistle blower cases, the underlying purposes for the whistle blower protections and principles are readily adaptable to Mr. Peck's case. Consequently, a protected activity under AIR 21 has two elements. First, the complaint must involve a purported violation of an FAA regulation, standard or order relating to air carrier safety. Second, the complainant's belief about the purported violation must be objectively reasonable.
From the facts presented in this case, Mr. Peck engaged in two actions which may be considered protected activity under AIR 21. First, on the morning of May 15, 2000, he informed Ms. Ferrara that the Hobbs meter of the Island Express aircraft may have been subjected to tampering. Second, in the same conversation, Mr. Peck expressed his belief that Island Express may be flying its aircraft beyond the next FAA regulatory-required phase inspection.
If proven true, both these allegations would have been violations of FAA air carrier safety regulations or adversely affected airworthiness. Aircraft flying time is utilized to regulate and ensure periodic and FAA-mandated maintenance inspections of air carrier aircraft. As a result, any tampering with the Hobbs meter recording of flying time may adversely affect air safety. Likewise, the failure to accomplish the periodic inspections on time also raises an air safety concern. As a result, Mr. Peck has established the first element of a protected activity because both his complaints specifically and definitively relate to the airworthiness of the Island Express aircraft and the safe transportation of passengers by this air carrier.
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Having determine both allegations concern air safety, I must next decide whether Mr. Peck's belief in those two allegations was objectively reasonable. Turning first to the Hobbs meter tampering assertion, and noting the complete absence of any evidentiary testimony or statement from Mr. Peck explaining the foundation for this complaint, I find an insufficient evidentiary basis in the record to conclude that Mr. Peck had a reasonable basis for this complaint.
In the years prior to May 2000, Mr. Bettencourt and Island Express had an issue concerning the accuracy of the aircraft's reported flying time. But, while many explanations were possible, including inaccurate readings from a tampered Hobbs meter, Mr. Fascigilione opined that irregular accounting was the most likely cause for the flying hour discrepancies. Mr. Bettencourt himself could not state that tampering of the Hobbs meter had occurred. Then, around May 2000, Mr. Peck did experience problems obtaining accurate flight times from Mr. Horna and Mr. Gordon. However, that difficulty was indicative of poor communications and a deteriorating business relationship rather than a tampered Hobbs meter. Additionally, Ms. Ferrara's May 15th inspection of the Hobbs meter showed no signs of tampering. Her independent reconciliation of the aircraft's flying hours and U.S. Customs logs did not provide any evidence reflective of tampering with the flying time meter. On the whole, while Mr. Peck no longer trusted the individuals who operated Island Express, apparently believed they were capable of tampering with aircraft recording equipment, and established that such tampering was physically feasible, he has failed to provide sufficient evidence to demonstrate that his complaint to the FAA that the Island Express aircraft may have a tampered Hobbs meter was objectively reasonable.
1The following notations appear in this decision to identify specific evidence: CX - Complainant exhibit; RX - Respondent exhibit; ALJ - administrative law judge exhibit; and, TR - Transcript of hearing.
2At the time of the hearing, the Secretary, U.S. Department of Labor, had not yet published implementing regulations concerning proceedings under AIR 21. Consequently, I utilized the provisions in 29 C.F.R. Part 24, Procedures for the Handling of Discrimination Complaints under Federal Employee Protection Statutes.
3TR, pages 24 to 30, 37 to39, and 289 to 294, and September 22, 2001 written summary.
4Mr. Peck also sought permission to seek punitive damages. However, such relief is not an available remedy under AIR 21. See 49 U.S.C. § 42121 (b) (3) (B). In addition, due to his concerns about the financial viability of Island Express, Mr. Peck requested that the officers, owners and shareholders of Island Express be held personally liable. I simply note that the named air carrier in this case is Safe Air International, Inc., d/b/a Island Express and any subsequent compliance issues that may result from my Recommended Decision and Order are brought before, and resolved by, an appropriate U.S. District Court. See 49 U.S.C. § 42121 (b) (6).
6As an early response to Mr. Peck's discrimination complaint, Island Express' former counsel asserted that Mr. Peck's complaint was untimely (CX 5). However, 49 U.S.C. § 42121 (b) (1) allows an individual 90 days after an alleged violation of AIR 21 to file a complaint. Since Mr. Peck filed his complaint with DOL on June 28, 2000 and OSHA notified him on July 27, 2000 that an investigator had been assigned to his complaint (CX 2), the timeliness of Mr. Peck's complaint is not an issue.
7In light of a pre-hearing motion submitted by DOL to quash Mr. Peck's subpoena of an OSHA investigator (which I received just before the hearing started and did not act upon) (ALJ 5), I doubted the attempt to obtain a post-hearing deposition of an OSHA investigator would be successful (TR, page 16). Since Mr. Kopelowitz did not submit a post-hearing deposition, I assume my doubt was correct.
8Ms. Ferrara explained that the Hobbs meter on an aircraft records flight time, in terms of engine time or propeller time, and is used in a manner similar to an automobile odometer.
9Even the manner of Mr. Peck's questioning concerning their accomplishment of a cylinder check prior to May 15th indirectly supported Mr. Horna's responses that he witnessed the compression check
10See Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995).
11Flanagan v. Bechtel Power Corp., 81-ERA-7 (Sec'y June 27,. 1996) and Chase v. Buncombe County, N.C. (intermittent employment with alleged discriminating company); The Connecticut Light & Power Co. v. Secretary of the United States Dept. of Labor, No. 95-4044 (2d Cir. May 31, 1996) (available at 1996 U.S. App LEXIS, 12583) (case below 89-ERA-38) (discrimination arose out of, or was related to, an employer-employee relationship); Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18, 1995) (interference with prospective employment); and Grizzard v. Tennessee Valley Auth., 90-ERA-52 (Sec'y Sept. 26, 1991) (discrimination based on subsequent participation in a whistle blower proceeding.)
12I recognize the Administrative Review Board's position that in a fully litigated case in which the respondent presents evidence of a legitimate motive for the personnel action the analysis of a prima facie case serves no analytical purpose because the final decision will rest on the complainant's ultimate burden of proof. See Adjiri v. Emory University, 97-ERA-36 (ARB July 14, 1998)and Carter v. Electrical District No. 2 of Pinal, 92-TSC-11 (Sec'y Jul. 26, 1995). However, despite some duplication of effort, I find that working through the prima facie elements useful since the ultimate burden of proof still involves many of the elements covered in the prima facie analysis. In addition, if the complainant, even in a fully litigated hearing, fails to establish an element of the prima facie case, the question of an ultimate burden of proof has also been decided.
13The citation for Couty case is Couty v. Dole, 886 F.2d 147 (8th Cir. 1989).
14The May 10 reading of 6164.2 hours minus the May 3 reading of 6122.7 hours, divided by 7 days equals 6 hours a day.
15Since Mr. Peck is unable to establish a prima facie case of employee discrimination, I need not address the fourth issue of whether the Respondent had a legitimate reason for terminating Mr. Peck or the fifth issue of whether Mr. Peck would ultimately prevail in carry his burden of proof. Had I considered those issues, I just note that pre-May 15th problems encountered by Island Express with Mr. Peck's maintenance work, the numerous maintenance deficiencies identified in the May 15th FAA inspection, which were made known to Island Express, the company's concern over the unfounded cylinder replacement recommendation by Mr. Peck, and the additional maintenance shortfalls later identified by Mr. McHugh, strongly suggest that Mr. Peck would also experience difficulty in prevailing on these two issues.