Davis v. United Airlines, Inc., 2001-AIR-5 (ALJ June 7, 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: 07Jun2002

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. Hearings were held in the above-captioned case on April 29, 2002 through May 3, 2002.

   In his Complaint, Mr. George T. Davis, alleged that United unlawfully retaliated against him for reporting alleged safety violations on September 29, 2000 and November 15, 2000. In the complainant's Pre-Hearing Report, which was filed on April 15, 2002, complainant additionally asserted that he was retaliated against for reporting an alleged hydraulic leak on October 25, 2000. Despite this allegation, counsel for complainant stated, at the beginning of the hearing that "we're not claiming that he reported a safety violation on that day [October 25, 2000]. He [Mr. Davis] never got to finish his repair before the airplane was taken to the hangar." (TR at 64, Volume I). However, both parties elicited testimony regarding the October 25, 2000 incident throughout the hearing, without objection by counsel for United. ¹

   20 C.F.R. § 18.5(e) states in relevant part:

When issues not raised by the pleadings are reasonably within the scope of the original complaint and are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings, and such amendments may be made as necessary to make them conform to the evidence.

¹ In addition, at the hearing, for purposes of summary and clarification I provided a statement of the issues including, "whether the complainant engaged in protected activity under the AIR Act on September 9, 2000, and November 15-196, 2000, or some other established date..." (TR 70-71, Volume I).