Mehen v. Delta Air Lines, 2003-AIR-4 (ALJ Feb. 24, 2003)

	U.S. Department of Labor Office of Administrative Law Judges

www.oalj.dol.gov

[skip navigational links] Search | A-Z Index

Find It! on DOL | OALJ Home | OALJ Law Library | About Us

October 3, 2008 DOL Home > OALJ Home > USDOL/OALJ Reporter

USDOL/OALJ Reporter

Mehen v. Delta Air Lines, 2003-AIR-4 (ALJ Feb. 24, 2003)

U.S. Department of Labor Office of Administrative Law Judges
50 Fremont Street, Suite 2100
San Francisco, CA 94105
(415) 744-6577
(415) 744-6569 (FAX)
DOL Seal

Issue Date: 24 February 2003

CASE NO.: 2003-AIR-4

In the Matter of:

DANA MEHEN,
Complainant

vs.

DELTA AIR LINES,
Respondent.

RECOMMENDED DECISION AND ORDER GRANTING MOTION TO DISMISS

INTRODUCTION

This proceeding started with a complaint filed on July 5, 2002, by the Complainant, Dana Mehen, under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR21"), 49 U.S.C. § 42121. After the Occupational Safety and Health Administration ("OSHA") notified the Complainant that her complaint would not be investigated because her complaint was untimely and she timely filed a request for a hearing with the Office of Administrative Law Judges ("OALJ").

For the reasons set forth below, this complaint is DISMISSED.

ANALYSIS AND FINDINGS

Procedural Background

This proceeding began on July 5, 2002, with the Complainant's complaint of retaliation by Delta Air Lines. The Complainant alleged that the Respondent denied her medical benefits, refused to pay her medical bills, denied her workers' compensation claim and refused to extend her COBRA benefits in reprisal for her protected activity. On October 10, 2002, OSHA declined to investigate her complaint after concluding that it was untimely and that she had failed to articulate a prima facie case of employment discrimination. After being notified of the Administrator's decision not to investigate her complaint, the Complainant contacted the Washington, DC Office of Administrative Law Judges for the Department of Labor and stated that she objected to the findings that had been made. After this matter was assigned to me, I issued a Notice of Hearing and Pre-hearing Schedule on November 22, 2003, scheduling this matter for a hearing on January 10, 2003, in Tucson, Arizona.

On December 18, 2002, I conducted a telephonic status conference with the Complainant and counsel for the Respondent. During the conference call, with agreement of both parties, the hearing was continued to February 25, 2003, and I ordered the Complainant to submit to me by December 30, 2002, additional information concerning her reprisal allegations. I ordered the Complainant to submit a statement and supporting documents to show that her complaint was timely filed; a statement of the specific protected disclosures she made, the identity of the persons she made the disclosures to, the date the disclosures were made, and the specific retaliatory action taken by the Respondent.

[Page 2]

The written order summarizing the discussions during the status conference was not served on the parties until January 14, 2003. By then, the Complainant had submitted her response to my Order. She submitted materials which responded to the timeliness issue, but there was no statement about the specific protected disclosures the Complainant made. In the order issued January 14, 2003, I noted the deficiencies in the Complainant's response but noted that the Complainant did not have the benefit of my written order when she prepared it. I pointed out that the Complainant's response did not include a statement of the specific protected disclosures she made, who she made them to, and when they were made. I also noted that it was unclear whether there was an alleged retaliatory action taken besides the termination of the Complainant's COBRA benefits. I gave the Complainant additional time until January 21 to supplement her earlier responses and gave the Respondent until January 28 to reply to the Complainant's submission.

The Complainant responded to my January 14, 2003, Order with supplemental materials. Because of a delay in receiving the Complainant's supplemental materials, the Respondent asked to have until January 31 to reply to the Complainant's submissions. That request was granted verbally. On January 31, 2003, the Respondent filed a motion to dismiss this proceeding on a number of grounds. The Respondent argued that the Complainant's claims under AIR21 are untimely; that Delta Air Lines is not a proper respondent in this proceeding; that the Complainant has not alleged a protected activity under AIR21; that the Complainant failed to make a prima facie showing that she engaged in protected activity under AIR21; and that some of the alleged retaliatory conduct took place before the enactment of AIR21.¹ The Complainant asked to have until February 14, 2003, to respond to the motion. Her request was granted, and she filed an opposition to the motion to dismiss.

Timeliness of Complaint

The Complainant's initial complaint to the Department of Labor alleged that the Respondent denied her "medical benefits, COBRA," refused to pay her medical bills and denied her workers' compensation claim in retaliation for her protected activity. In her responses, the Complainant also explained that the Respondent denied her long term disability benefits.

AIR21 provides that an individual who believes he or she has been discriminated against under that statute must file a complaint within 90 days after the violation occurred. The Complainant's worker compensation claim was denied in 1997, and she stated in her response to the Motion to Dismiss that she was "dismissed" from the long term disability program on August 31, 2000. Both these actions took place well before the Complainant filed the complaint that initiated this proceeding. I find, therefore, that the Complainant's claims with respect to the denial of her workers' compensation benefits claim and the decision about her eligibility for long term disability benefits are untimely.

I reach a different result, however, with respect to her claim about her COBRA benefits. The letter informing the Complainant that her request for an extension of her COBRA benefits was denied was dated March 6, 2002. She filed her complaint with the Department of Labor by fax on July 5, 2002. Because the letter denying the Complainant's COBRA benefits was dated March 6, 2002, under the statute, her retaliation complaint should have been filed by June 6, 2002. Her complaint was a month late. She argues, however, that though the letter was dated March 6, 2002, she did not receive it until April 9, 2002. She speculates that the delayed receipt might have been caused by the incorrect zip code in the address.

[Page 3]

The United States Supreme Court ruled in Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498 (1980) that the period for filing employment discrimination complaints under Title VII of the Civil Rights Act of 1964, 442 U.S.C. § 2000e, et seq., begins on the date the employee is given definite notice of the challenged employer decision. This same approach has been taken with respect to allegations of reprisal for whistleblowing activity under the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. § 5851. See e.g. English v. Whitfield, 858 F.2d 957, 961 (4th Cir. 1988); Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991). This approach should be applied in the instant case as well.

Since the letter notifying the Complainant that her request for an extension of her COBRA benefits was incorrectly addressed, I find it plausible that she did not receive the letter until April 9, 2002, as she represented. If she did not learn of the action until April 9, 2002, then her complaint was filed within 90 days after she learned of the decision. Thus, I find that her complaint about her COBRA benefits was timely filed.

Factual Background

The Complainant formerly worked for the Respondent as a flight attendant. She has been on medical leave since 1994. She initially received workers' compensation benefits from the state of Texas for an injury that she suffered to her lungs on December 6, 1983. On August 10, 1997, Dr. Michael Gray, the Complainant's treating physician, wrote the Respondent's insurance carrier and notified them that her medical problems had been exacerbated by "recurrent exposures to pesticides used to fumigate the planes" she worked on as a flight attendant on international flights. The Complainant modified her workers' compensation claim in 1997 to incorporate the new diagnosis. The Respondent challenged her workers' compensation claim, claiming that she was able to work and was not entitled to continue receiving benefits. That claim is apparently currently still unresolved.

The Complainant Has Failed to Articulate A Prima Facie Case of Discrimination

AIR21, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century Title, establishes a whistleblower protection program which prohibits an air carrier from retaliating against an employee because the employee engages in protected activity. Protected activity occurs when the employee:

"(1) provided, caused to be provided, or is about to provide (with any knowledge of the employer) or cause to be 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 or any other provision of Federal law relating to air carrier safety under [AIR21] or any other law of the United States;
(2) has filed, caused to be filed, or is about to file (with any knowledge of the employer) or cause to filed a proceeding relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety under [AIR21] or any other law of the United States..."

49 U.S.C. § 42121; see also, 29 C.F.R. § 1979.102

[Page 4]

During my conference call and in my January 14, 2003, Order, I asked the Complainant to identify the whistleblower activity she engaged in that led to the alleged retaliation. In response to those requests, and the Respondent's Motion to Dismiss, the Complainant repeatedly stated that she provided information to the Respondent concerning the fire/pesticide issues which caused her illness and disability and that she brought forward the unsafe work environment issue. In her responses, the Complainant has referred to her activity in 1997, which was when she amended her workers' compensation benefits claim to add an allegation that her medical condition was the result of pesticide spraying. In 1997, Dr. Gray notified the Respondent's insurance carrier that he believed her medical condition was exacerbated by her recurrent exposure to pesticides used to fumigate the planes she worked on during her international flights.

The Complainant is essentially arguing that her filing of her modified workers' compensation claim in 1997, and her pursuit of that claim, was her protected activity. While it is conceivable that an individual could make a protected whistleblowing disclosure in the course of filing and pursuing a workers' compensation case, I do not find that to be the case here, where the Complainant was merely asserting a claim for workers' compensation benefits and reporting, as required, why she felt her injury was work-related.

The Complainant did not allege in her workers' compensation claim that the Respondent had violated "any order, regulation or standard of the Federal Aviation Administration" or any other law regulating air carrier safety, and there is no allegation by her that she made any such claim to any governmental entity or even to the employer. In fact, she acknowledges that the pesticide spraying was mandated by the governments of the foreign countries the Respondent's planes landed in. Though the Complainant alleges that the pesticide spraying was an unsafe work environment issue, she does not allege that she specifically made that allegation to anyone. The extent of her "protected" activity was her efforts to obtain the workers' compensation benefits that she felt she was entitled to. By claiming in the workers' compensation claim process that her injury was work related because of her exposure to pesticides, the Complainant did not engage in an activity protected by 49 U.S.C. § 42121.

By regulation, a complainant under AIR21 must allege the existence of facts and evidence to make a prima facie showing by alleging that:

(i) the employee engaged in protected activity or conduct;
(ii) the named person knew, actually or constructively, that the employee engaged in the protected activity;
(iii) the employee suffered an unfavorable personnel action; and
(iv) the circumstances were sufficient to raise the inference that the protected activity was likely a contributing factor in the unfavorable action.

29 C.F.R. § 1979.104(b)(1) (2002). See also American Nuclear Resources, Inc. v. U.S. Department of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998) (Energy Reorganization Act); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984) (Energy Reorganization Act.

[Page 5]

Since I find the Complainant has failed to allege sufficient facts to show that she engaged in a protected activity, I find the Complainant has failed to articulate a prima facie case of reprisal for whistleblowing under AIR21.

ORDER

The Respondent's Motion to Dismiss is GRANTED, and this case is DISMISSED.

JENNIFER GEE
Administrative Law Judge

NOTICE OF APPEAL RIGHTS

This decision shall become the final order of the Secretary of Labor pursuant to 29 C.F.R. § 1979.110 (2002), unless a petition for review is timely field with the Administrative Review Board ("Board"), U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington, D.C. 20210. Any party desiring to seek review, including judicial review, of a decision of the administrative law judge must file a written petition for review the Board, which has been delegated the authority to act for the Secretary and issue final decisions under 29 C.F.R. Part 1979. To be effective, a petition must be received by the Board within 15 days of the date of the decision of the Administrative Law judge. If a timely petition for review is filed, the decision of the administrative law judge shall be inoperative unless and until the Board issues an order adopting the decision, except that a preliminary order of reinstatement shall be effective while review is conducted by the Board. The Board will specify the terms under which any briefs are to be filed. Copies of the petition for review and all briefs must be served on the Assistant Secretary, Occupational Safety and Health Administration, and on the Associate Solicitor, Division of Fair Labor Standards, U.S. Department of Labor, Washington, DC 20210. See 29 C.F.R. §§ 1979.109(c) and 1979.110(a) and (b).

[ENDNOTES]

¹ Because I find the Complainant has failed to allege a prima facie case of discrimination, there is no need to address all of the Respondent's arguments.