ARB CASE NO. 05-077
ALJ CASE NO. 05-AIR-004
DATE: September 28, 2007
In the Matter of:
MARK S. SASSMAN, SR.,
COMPLAINANT,
UNITED AIRLINES, and
ALLIANT CREDIT UNION,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Mark S. Sassman, Sr., pro se, Carmel, Indiana
For the Respondent United Airlines:
Gary S. Kaplan, Esq., Seyfarth Shaw LLP, Chicago, Illinois
For the Respondent Alliant Credit Union:
Dierdre K. White, Esq., Alliant Credit Union, Chicago, Illinois
FINAL DECISION AND ORDER
Mark S. Sassman, Sr. filed a
complaint against United Airlines and Alliant Credit Union alleging that they
retaliated against him and therefore violated the employee protection provision
of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR
21).[1]
A United States Department of Labor Administrative Law Judge
[Page 2]
(ALJ) recommended
that Sassman’s complaint be dismissed. Sassman appealed. We conclude that
Sassman’s complaint must be dismissed.
BACKGROUND
Sassman
worked as a mechanic at United’s Indianapolis Maintenance Center. In 1992,
Sassman joined Alliant (f/k/a United Airlines Employees’ Credit Union). In
February 1999, Sassman purchased a 1999 Chevrolet Venture van. Alliant financed
the purchase.
United
discharged Sassman in December 2000. Sassman filed an AIR 21 complaint in
January 2001, alleging that United fired him because he had criticized its air
carrier maintenance program. United asserted that it fired Sassman because he
accepted pay for time he did not work. Meanwhile, Sassman did not make
required payments on the Alliant loan. Alliant repossessed the van in February
2002 and sold the van at an auction. The sale proceeds were less than Sassman
owed on the loan, and Alliant sought to collect the difference between the sale
proceeds and the balance of the loan.
On
December 9, 2002, United filed a petition for bankruptcy protection. A Labor
Department ALJ dismissed Sassman’s complaint because it was discharged as part
of United’s bankruptcy reorganization.[2]
Sassman did not appeal this order, and it became the Secretary of Labor’s final
decision by operation of law.[3]
On
July 1, 2004, Sassman filed this AIR 21 whistleblower complaint.[4]
This time Sassman named both United and Alliant. Sassman alleged that because
of the safety concerns he raised in 2000, United caused Alliant to treat him more
harshly than it treated other credit union members who defaulted on loans.
The
ALJ assigned to this case recommended that this complaint be dismissed because
it did not state a claim for which relief can be granted and because it was
[Page 3]
untimely filed.[5]
We granted Sassman’s petition for review of the ALJ’s recommended order of
dismissal.
JURISDICTION AND STANDARD OF REVIEW
This Board has
jurisdiction to review the ALJ’s recommended decision.[6]
We review an ALJ’s conclusions of law de novo.[7]
We review the ALJ’s findings of fact in an AIR 21 case under the substantial
evidence standard.[8]
DISCUSSION
1. Sassman’s Claim Against United Was Discharged in Bankruptcy
On March 13, 2006, United
informed us that the Bankruptcy Court had entered a Confirmation Order on
January 20, 2006, that discharged and released United from any claims of any
nature that arose before the confirmation date. On March 23, 2006, we ordered
United to inform us whether and why the discharge required us to dismiss
Sassman’s complaint or dismiss United as a party. We also gave Alliant and
Sassman an opportunity to respond to United’s response.
United
responded and reiterated its argument that, pursuant to 11 U.S.C.A. § 1141(d)(1)(A),
the entry of the Confirmation Order discharged it from “any debt that arose
before the date of such confirmation.” Furthermore, United pointed out that under
11 U.S.C.A. § 524(a)(2), the discharge “operates as an injunction against the
commencement or continuation of an action, the employment of process, or an
act, to collect, recover, or offset any such debt as a personal liability of
the debtor.”[9]
Sassman
responded to United’s response. The essence of Sassman’s response is that “the
current case occurred” after United filed for bankruptcy and therefore United
[Page 4]
was not discharged from his present claim. Sassman cited no authority to
support this argument.[10]
We find that
Sassman’s claim against United, whether characterized as a pre-petition claim
or as a post-petition claim, was discharged in bankruptcy because it arose before
the Confirmation Order was entered on January 20, 2006. Therefore, we dismiss
Sassman’s claim against United.
We will,
however, proceed to decide whether Alliant violated the Act. Sassman argues
that Alliant is liable with United because “United Airlines Credit Union
[Alliant’s predecessor] Employees were employed by United Airlines, received
benefits from United Airlines, received office space within the United Airlines
facilities at no charge, [and] used United Airlines Computer systems and acted
as a common entity.”[11]
We are cognizant of Alliant’s argument that since it is not an air carrier or
contractor or subcontractor of an air carrier, it is not a covered employer
under AIR 21.[12]
And Alliant also submitted an affidavit from Lee Schafer, an Alliant Senior
Vice President, who states that Alliant is and has always been an entity
separate and distinct from United.[13]
But since Sassman has not yet had an opportunity for discovery to prove his
“common entity” theory, we will assume without finding that Alliant is an AIR
21-covered employer.
2. The AIR 21 Legal Standard
AIR 21 prohibits air
carriers and their contractors and subcontractors from taking an adverse
employment action against an employee (or former employee) because the employee
provided the employer or the Federal Government information relating to a violation
of any federal air carrier safety law.[14]
To prevail on an AIR 21 whistleblower complaint, the employee must prove by a
preponderance of the evidence that he was an employee who engaged in activity
the statute protects, that an employer subject to the act had knowledge of the
protected activity, that the employer subjected him to a materially
[Page 5]
adverse
action, and that the protected activity was a contributing factor in the
employer’s decision to take the adverse action.[15]
3. Failure To State a Claim
The ALJ found that
Sassman’s complaint did not “articulate an unfavorable personnel action.”
Thus, he concluded that it failed to state a claim upon which relief can be
granted and therefore should be dismissed.[16]
Sassman argues that he was a member of Alliant, a credit union that serves
United employees and former employees, and that membership is a privilege of
employment with United. Sassman then correctly notes that AIR 21 prohibits
employers from taking adverse action against former employees with respect to
“compensation, terms, conditions, or privileges of employment.”[17]
According to Sassman, Alliant and United took an adverse action against him in
June 2004 when Alliant’s collection attorney sent him a letter threatening to
sue him for the balance owed on the loan agreement.[18]
Sassman claims that Alliant, in concert with United, treated him differently
than other credit union employees who defaulted on loans. Sassman argues, in
essence, that the ALJ erred in finding that his complaint did not articulate an
unfavorable personnel action.[19]
The ALJ did not
provide discussion or analysis for his finding. And, arguably, on its face,
Sassman’s argument has merit. But even if we assume that Sassman’s membership
in Alliant constitutes a privilege of employment with United, and even assuming
that Alliant’s actions to enforce the loan agreement were materially adverse to
Sassman, the complaint must be dismissed because Sassman did not timely file
it.
[Page 6]
4. Sassman’s Complaint Is Time-Barred
The ALJ found that
Sassman did not timely file this complaint. AIR 21 whistleblower complaints
must be filed within 90 days of the alleged adverse action.[20]
The 90-day limitation period begins to run on the date that the employer
communicates to the employee its intent to implement an adverse employment
decision, not the date that the employee experiences the consequences of the
adverse action.[21]
As noted, Sassman’s
complaint alleges that on June 2, 2004, United and Alliant took adverse action
against him when Alliant’s collection attorney sent the letter to him. Sassman
appears to argue that since he filed his complaint on July 1, 2004, (albeit with
Indiana’s Department of Labor), he filed within 90 days of the adverse action
and, therefore, his complaint is not time-barred.[22]
But Sassman’s
argument fails because, as Alliant points out, the June 2, 2004 letter was only
a “step” in Alliant’s repossession and debt collection process. Alliant
asserts, and Sassman does not contest, that it repossessed the van on February
2, 2002. Thereafter, on February 5, 2002, it notified Sassman in writing that
it had repossessed the van because of his default, informed him of the
deficiency balance, indicated that it would sell the van, and that the proceeds
would go toward the deficiency. According to Alliant, this letter also advised
Sassman that he would owe any difference between the balance owed and the sale
proceeds. Alliant also asserts that it sent another letter on March 20, 2002, advising
Sassman of the amount he owed after the sale and that it would take “other
action” if Sassman did not contact Alliant about settling the balance due.[23]
Sassman has provided no evidence that contradicts Alliant’s argument that the
June 2, 2004 letter was but a step in its debt collection process.
We find that the June
2, 2004 letter informing Sassman about Alliant’s continuing collection efforts was
a consequence of the action Alliant initiated and communicated to Sassman in
February and March 2002. Alliant’s continuing collection effort was not, therefore,
a separate, actionable adverse action. Accordingly, since Sassman did not file
an AIR 21 complaint within 90 days of when he received Alliant’s February 5 or
March 20, 2002 letters informing him of its intentions, his complaint is time-barred.
[Page 7]
This Board has
recognized three situations in which we will toll a statute of limitations and
accept an untimely complaint: (1) when the employer has actively misled the
complainant regarding his whistleblower rights; (2) when the complainant has in
some extraordinary way been prevented from filing a complaint; and (3) when the
complainant has filed the complaint in the wrong forum.[24]
Sassman has presented no argument or evidence that the first two situations
apply here. His brief implies that since he filed his complaint with the
Indiana Department of Labor, his complaint is timely.[25]
But as we indicated earlier, we are treating Sassman’s July 1, 2004 Indiana filing as a properly filed AIR 21 complaint.[26]
Therefore, we find no grounds upon which to toll the 90-day limitations
period.
Sassman also argues that
under the “continuing violation” doctrine, the July 2004 complaint was timely
filed. In support of this argument, Sassman seems to say that since he continued
to engage in protected activity in 2003 when he criticized United’s maintenance
program to the FAA, the Mayor of Indianapolis, and on CBS news, his July 2004
compliant is not time-barred.[27]
But the continuing violation doctrine has nothing to do with protected
activity or when such activity occurred. Instead, under that doctrine, courts
held that certain adverse actions, though occurring outside of the statute of
limitations, could nevertheless constitute a “course
of discriminatory conduct”
and thus be actionable.[28]
Sassman confuses protected activity with adverse action. Moreover, the United
States Supreme Court has rejected the continuing violation doctrine.[29]
Thus, this argument has no merit.
[Page 8]
CONCLUSION
Sassman’s claim
against United was discharged in bankruptcy. Therefore, we DISMISS the
complaint against United. Sassman’s claim against Alliant was not filed within
90 days of the alleged adverse action that Alliant and United took against
Sassman. Therefore, that claim is time-barred and also must be DISMISSED.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[1] 49 U.S.C.A. § 42121(a) (West Supp.
2006).
[2] Sassman
v. United Airlines, No. 2001-AIR-007 (ALJ June 6, 2006).
[3] See
29 C.F.R. § 1979.110 (2007).
[4] Sassman
filed this complaint in a letter he sent to Indiana’s Department of Labor in Indianapolis , Indiana. Regulations that implement AIR 21 require that complaints be filed
with the Area Director for the United States Department of Labor’s Occupational
Safety and Health Administration (OSHA) in the area where the employee resides
or was employed. 29 C.F.R. § 1979.103(c). When he did not receive a response
to his letter, Sassman sent a copy to the Secretary of Labor on September 20,
2004. Though Sassman initially filed his complaint with the wrong agency, like
the ALJ, and for purposes of this opinion only, we will treat Sassman’s July 1,
2004 letter to Indiana OSHA as a properly filed AIR 21 complaint.
[5] March
8, 2005 Order Dismissing Complaint.
[6] 29
C.F.R. § 1979.110. See also Secretary’s Order 1-2002, 67 Fed. Reg.
64,272 (Oct. 17, 2002) (delegating to ARB the Secretary’s authority to issue
final orders under, inter alia, AIR 21 § 42121).
[7] Mehan
v. Delta Air Lines, ARB No. 03-070, ALJ No. 03-AIR-004, slip op. at 2 (ARB
Feb. 24, 2005); Negron v. Vieques Air Link, Inc., ARB No. 04-021, ALJ
No. 2003-AIR-010, slip op. at 5 (ARB Dec. 30, 2004).
[8] 29 C.F.R. § 1979.110(b).
[9] Response
to March 23, 2006 Order.
[10] Complainant’s Response at 3.
[11] Brief
at 2-3.
[12] Alliant
Brief at 5-11; 49 U.S.C.A. § 42121(a) (“No air carrier or contractor or
subcontractor of an air carrier may discharge an employee or otherwise
discriminate against an employee . . . .”).
[13] Affidavit
of Lee Schafer (Exhibit C to United Airlines Response to Complainant’s Appeal
of Order Dismissing Complaint).
[14] 49 U.S.C.A. § 42121(a)(1).
[15] See
49 U.S.C.A. § 42121(b)(2)(B)(i), (iii); 29 C.F.R. § 1979.104 (b)(1)(i)-(iv); Hirst
v. Southeast Airlines, Inc., ARB No. 04-116, 04-160, ALJ No. 03-AIR-047,
slip op. at 7-12 (ARB Jan. 31, 2007).
[16] Order Dismissing Complaint at 2, para. 6.
[17] Brief at 1-2.
[18] Sassman
characterizes the letter as a “threat.” According to Alliant, the collection
attorney used the letter to “contact” Sassman about the delinquent account.
The letter is not part of the record. We can safely assume that the letter at
least indicated that Alliant was continuing to pursue its collection efforts.
[19] Brief at 1-2.
[20] 49
U.S.C.A. § 42121(b)(1).
[21] Belt
v. U.S. Enrichment Corp., ARB No. 02-117, ALJ No. 01-ERA-019, slip op. at 5
(ARB Feb. 26, 2004) (citing Delaware State Coll. v. Ricks, 449 U.S. 250,
258 (1980) (limitations period began to run when the employee was denied tenure
rather than on the date his employment terminated)).
[22] Brief at 3-6.
[23] Alliant
Brief at 11-12. The February 2 and March 20, 2002 letters are not part of the
record.
[24] See
Higgins v. Glen Raven Mills, Inc., ARB No. 05-143, ALJ No. 2005-SDW-007,
slip op. at 8 (ARB Sept. 29, 2006).
[25] Brief at 3-6.
[26] See
n.4.
[27] Brief at 6-8.
[28] See
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 107 (2002) (internal
citations omitted).
[29] See
Morgan, 536 U.S. at 114-115; see also Brune v. Horizon Air Indus., Inc.,
ARB No. 04-037, ALJ No. 2002-AIR-008, slip op. at 8-9 (ARB Jan. 31, 2006)
(continuing violation doctrine does not apply to AIR 21 whistleblower cases).
