Hintz v. United Airlines, 2003-AIR-9 (ALJ Feb. 20, 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)

Issue Date: 20 February 2003

CASE NO. 2003-AIR-00009

In the Matter of:

JUDY HINTZ,
   Complainant,

    v.

UNITED AIRLINES,
    Respondent

   This matter comes on for consideration of Respondent's Suggestion of Bankruptcy and its request that this proceeding be stayed pursuant to the automatic stay provision of the Bankruptcy Code, 11 U.S.C. sec. 362(a).

   This is a complaint filed by Judy D. Hintz ("Complainant") against United Airlines ("Respondent") pursuant to the Wendell H. Ford Aviation and Reform Act for the 21st Century ("AIR 21 Act"), 49 U.S.C. sec. 42121; the Safe Drinking Water Act ("SDW Act"), 42 U.S.C. sec. 300j-9(i); the Clean Air Act ("CA Act"), 42 U.S.C. sec. 7622; and the Occupational Safety and Health Act ("OSH Act"), 29 U.S.C. sec. 660. Complainant alleges that Respondent discriminatorily discharged her because she escorted a privately hired industrial hygienist through the workplace to evaluate indoor air quality and mold located in employee only access areas of the Denver International Airport. The U.S. Department of Labor ("DOL") investigated complainant's claims and dismissed the AIR 21 claim as being unrelated to air carrier safety and dismissed the other claims finding that complainant's actions did not constitute a "protected activity" as required for protection under these statutes. Complainant subsequently timely filed an appeal seeking an evidentiary hearing before an Administrative Law Judge ("ALJ"). By letter dated December 11, 2002, the OSHA Regional Administrator for Region VIII advised that DOL would be represented in this appeal by an Associate Solicitor of Labor in Denver. The undersigned, upon assignment of this matter, set the trial for February 24, 2003, in Denver, Colorado. Upon the unopposed motion of Complainant to continue the trial setting to allow more time for trial preparation, the February 24, 2003 trial setting was continued to be reset at a later date.

   Respondent and Complainant have each filed briefs with regard to the stay issue. This issue has also been addressed by two fellow DOL ALJ's recently in which opposite conclusions were reached. In Mark S. Sassman, Sr. v. United Airlines, 2001-AIR-0007, ALJ Robert L. Hillyard ordered that further proceedings be stayed pursuant to the automatic stay provision of the bankruptcy act. In William Briggs v. United Airlines, 2003-AIR-00003, ALJ Gerald Michael Etchingham ordered that those proceedings would continue unabated by the bankruptcy stay except that any enforcement or collection of any future money judgments would be subject to the stay provision of the bankruptcy proceeding. The undersigned has reviewed the orders in these two matters and has decided to adopt the rationale and decision set forth in the Briggs matter as the undersigned believes that permitting this matter to proceed to conclusion, but not to enforcement or collection of any potential money judgment, would best advance the goals of these public interest and safety acts with little, if any, potential harm to either Respondent or its creditors in the bankruptcy proceeding.

   Accordingly, it is hereby

   ORDERED that further proceedings in this matter shall continue unabated and shall not be stayed with the exception that enforcement or collection of any future money judgments that may be issued herein shall be subject to the stay order or such further order from the bankruptcy court with regard thereto.

   IT IS FURTHER ORDERED that counsel for Complainant shall set up a telephone conference call with the undersigned and all counsel for the purpose of scheduling the trial of this matter as soon as possible.

       RUSSELL D. PULVER
       Administrative Law Judge