Davis v. United Airlines, Inc., 2001-AIR-5 (ARB Apr. 5, 2002)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue date: 05Apr2002

CASE NO.: 2001-AIR-5

In the Matter of

GEORGE T. DAVIS, Jr. and DIANE DAVIS,
    Complainants

    v.

UNITED AIRLINES, INC.,
    Respondent

   This proceeding arises under the employee protection provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR Act" or "AIR21"), 49 U.S.C. §§ 42121, et seq., Public Law 106-181, Title V, § 519 and the regulations thereunder at 29 C.F.R. Part 24.

    By way of facsimile, on March 21, 2002, Complainants requested an opportunity to inspect one of United's 727, 737, and Airbus airplanes. In a letter dated March 25, 2002, United responded to the Complainants' request and stated that it did not find that requested inspection was appropriate in the instant matter. More specifically, United asserted that it retired its fleet of 727s after the September 11, 2001 tragedy. Moreover, United challenged the relevancy of the inspection, noting that the Complainants had not requested to inspect the specific planes that were the subject of the two incidents. Furthermore, United asserted that current condition of the airplanes is not at issue in the present claim, to warrant an inspection and/or photographs. United concluded that it could not take multiple airplanes out of service to allow an inspection without disrupting its business.

   On April 1, 2002, Complainants filed a Motion to Compel Entry Upon Land and Inspection. Specifically, Complainants requested the opportunity to inspect one of each of Respondent's 727, 737, and Airbus airplanes, in order to take photographs and/or videotapes of the areas and parts of the planes repaired by Mr. Davis. Complainants asserted that this inspection would enable Complainants' counsel to understand the nature of Mr. Davis' findings, repairs, and reports that are at issue and to use photographs and/or videotape to assist the Administrative Law Judge in determining the appropriateness of Mr. Davis' safety report and repairs. (Complainants' Motion at Paragraph 1). In addition, the Complainants argued that United had failed to specifically object to the request to inspect the named aircraft. The Complainants further asserted that the requested inspections could be done while the planes are being inspected between flights or while they are in the hangar. The Complainants added that, while 727s are no longer in service, it is their belief that a 727 still remains at the Denver airport and that it can be made available for inspection without much inconvenience to United.

   On April 3, 2002, United filed a Response in Opposition to Complainants' Motion to Compel Entry upon land. United asserted that: 1) its objections to Complainants' initial request were specific and detailed; 2) Complainants' request for inspection is not likely to lead to the discovery of admissible evidence; 3) Complainants' request was overly broad, in that Complainants requested unrestricted access to all areas of the aircraft; and 4) the requested inspection in unduly burdensome and disruptive to United's business.

   49 U.S.C. § 42121 et. seq., is similar to most whistleblower statutes, in that it requires that the complainant establish that: (1) he or she engaged in protected activity; (2) he or she was subject to unfavorable employment action; and, (3) a causal connection exists between the protected activity and the adverse action. The burden then shifts to the employer to demonstrate, by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior. In AIR cases, the protected activity essentially is providing to the employer or federal government information regarding any alleged violation of any order, regulation, or governmental standard related to air carrier safety. 49 U.S.C. § 42121(a).

   Title 29, C.F.R. Part 18, sets forth the Rules of Practice and Procedure for administrative hearings before the Office of Administrative Law Judges. When those rules are inconsistent with a rule of special application as provided by statute, executive order, or regulation, the latter controls. 29 C.F.R. § 18.1(a). The Federal Rules of Civil Procedure (FRCP) apply to situations not controlled by Part 18 or rules of special application.¹ Further, an administrative law judge may take any appropriate action authorized by the Rules of Civil Procedure for the District Courts. 29 C.F.R. § 18.29(a)(8).

   Discovery may be had into any relevant matter not privileged, regardless whether it may be ultimately admitted into evidence, if reasonably calculated to lead to the discovery of admissible evidence.² 29 C.F. R. § 18.14(a) and (b). Neither the general Rules of Practice and Procedure nor the FRCP define "relevancy," the Federal Rules of Evidence (FRE) defines it as, " ... evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FRE Rule 401; see also 29 C.F.R. § 18.401. It is routinely held that objections to discovery requests must be specific and detailed. Alexander v. F.B.I., 192 F.R.D. 50, 53 (D.D.C. 2000).

   Part 18, provides for the following discovery methods: depositions; written interrogatories; production of documents; and, requests for admissions. 29 C.F.R. § 18.13. In addition, 29 C.F.R. §18.19 permits entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, photographing, testing, or for other purposes.

   While discovery may be had into any relevant matter not privileged, the scope of discovery is not without limitations. Federal Rule of Civil Procedure 26(a)(1) authorizes the court to limit the scope of discovery where:

(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable form some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation.

   Based upon the nature of these allegations and the central issue of this case I do not find that an inspection of United's aircraft would lead to the discovery of admissible evidence. Most significantly, the current condition of the aircraft are not at issue in present claim to necessitate the need for photographs. Moreover, the Complainants have not requested to inspect the particular aircraft that Mr. Davis inspected on September 29, 2000 or November 15, 2000. Furthermore, United stated that it has produced nearly 30 photographs of the precise tire in question, which were taken during the FAA's investigation of the November 15, 2000 tire incident. ³

   Third, pursuant to FRCP 26(a)(1), I find that Complainants' request to inspect and photograph United's aircraft is unduly burdensome. While the Complainants argued that the inspections could be done while the planes are being serviced, such an inspection would likely interfere with United's maintenance and repair schedule resulting in unnecessary flight delays. Moreover, United asserted that its fleet of 727s have been taken out of service since the tragic events of September 11, 2001. Since the Complainants have failed to establish the relevancy of the requested inspection, to allow the inspections would only serve to unduly burden United.

¹ The Administrative Procedures Act (APA), 5 U.S.C.§ 555, is also applicable.

² Under Rule 26, Federal Rules of Civil Procedure, "[p]arties may obtain discovery regarding any matter... relevant to the subject matter in the pending action ..." F.R.C.P. 26(b)(1).

³ I am not in opposition of United taking its own photographs of the particular areas of the aircraft that are in question, if to do so would not unduly burden United's business operations. United stated that it had volunteered, on April 3, 2002, to have a member of its management inspect and take photographs of the aircraft in response to Complainants' request, however, the Complainants were not satisfied with the offer. I further add that Complainants may be able to obtain photographs or schematics of the subject aircraft from the aircraft manufacturer, if they feel that photographs would be helpful in facilitating an understanding of facts of this case.