Powers v. Pinnacle Airlines, Inc., 2004-AIR-6 (ALJ Dec. 16, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002

Issue Date: 16 December 2003

Case No.: 2004AIR6

In the Matter of

Coleen L. Powers,
    Complainant

v.

Pinnacle Airlines, Inc.,
    Respondent

   This matter arises from the Complainant's appeal of an adverse finding by OSHA on her complaint filed on March 28, 2003 against Northwest Airlines Corporation (NWAC), NWA, Inc., and Pinnacle Airlines, Inc., d/b/a/ Northwest Airlink, et al. The Complainant alleged that these parties retaliated against her by "illegally" asking for monetary sanctions against her in another case pending at the time, 2003 AIR 12. By a Notice dated May 16, 2003, the Complainant amended her complaint to add allegations that the above named parties, as well as Mesaba Airlines, violated the AIR 21, Sarbanes-Oxley, and Environmental Whistleblower Acts in retaliation for her pursuit of her case in 2003 AIR 12. Specifically, she alleged that she was denied opportunities for employment and promotion with Pinnacle Airlines, Inc., and denied a longevity increase by Pinnacle Airlines, Inc. By letter dated October 29, 2003, OSHA notified the Complainant that it had completed its investigation of her complaint, and found it to have no merit. The Complainant timely appealed this finding.

   Subsequently, on November 17, 2003, the Complainant filed her "Complainant Notice of Filing (CX-92); Appeal & Objections of USDOL OSHA October 29, 2003 "Findings"; Complainant Request for DeNovo Hearing on the Record on All Claims of Retaliation, Harassment, Blacklisting, and Discrimination by All Named Persons/Parties; Request for Consolidation With OALJ Case Number 2003 AIR00012 to Conserve Judicial Resources."

   On December 1, 2003, the Complainant filed her "Complainant Concerns, Objections, & Responses to Corporate Lawyer Appearances of Exparte Communications as Evidenced by His November 26, 2003 Opposition Filing to Ms. Powers' May 2, 2003, September 2, 2003, September 16, 2003, and November 15/17, 2003 Motions to Consolidate Denovo Hearings in US DOL OALJ Case 2003AIR00012 & Appealed OSHA 4 Case #4-1760-03-029."

   On December 1, 2003, the Complainant filed her "Complainant Concerns, Objections, & Responses to Corporate Counsel November 26, 2003 Opposition to Ms. Powers' November 24, 2003 Motion to Barr Piper Rudnick, LLP & Mr. Doug Hall From Representation Based on his Unethical Conduct."

   On December 4, 2003, the Complainant filed her "Amendment: Post-Complaint Hostility, Reprisal, & Retaliation by Named Persons' Corporate Attorney, Doug Hall, Piper Rudnick LLP, and Pinnacle Airlines, Inc., d/b/a/ Northwest Airlink, Memphis In-Flight VP and VP of Marketing & Sales, Mr. Phil Reed for Complainant's Pursuit of US DOL OALJ Administrative Consolidated Denovo Hearings in 2003AIR00012 and Ms. Powers' November 15/17, 2003 Appeal on OSHA Case # 4-1760-03-029." By telefax on that same date, the Complainant submitted her "Complainant's Objections to Named Persons' Unethical, Unsupported, & Unlawful December 2, 2003 Motion to "Stay" Discovery & Their November 26, 2003 Unlawful, Unsupported, Motion for Partial Dismissal on Ms. Powers' November 15/17, 2003 Appeal on OSHA October 29, 2003 Biased & Inoperative "Findings"; Named Persons' Motions Attempt to Usurp Congressional Whistle Blower Rights to Due Process, Discovery, and DeNovo Hearings on all Whistle Blower Claims; Thus, Both Motions Must be Denied in Their Entirety."

   On November 26, 2003, Pinnacle Airlines, Inc. filed "Respondent Pinnacle Airlines' Response to Complainant's Suggestion That This Matter be Consolidated with Prior Litigation," and "Respondent Pinnacle Airlines' Motion for Partial Dismissal." Also on that date, by telefax, Pinnacle Airlines, Inc. filed "Respondent's Opposition to Complainant's November 24th Pleading."

   Parties

   After this matter was referred to the Office of Administrative Law Judges, the Complainant unilaterally added as Respondents the law firm of Piper Rudnick, LLP, and attorney Doug Hall, and Phil Reed, the Vice President of Marketing & Sales at Pinnacle Airlines, Inc. None of these parties were named in the administrative complaint filed with OSHA, and they may not be added by the Complainant at this stage of the proceedings. Nor is there any authority for the Complainant to amend her complaint at this stage of the proceedings, either by adding new parties or new allegations.

   Moreover, neither Piper Rudnick, LLP, nor Mr. Hall have ever employed the Complainant, and thus she cannot state a claim against them under AIR 21 or any of the environmental whistleblower statutes. Nor has she alleged any facts that would support a claim against these parties under the Sarbanes-Oxley Act.

   Mr. Reed is an employee of Pinnacle Airlines, Inc. He is not the Complainant's employer, and the Complainant has stated no cause of action against him in his individual capacity.

   With respect to the Complainant's allegations under the AIR 21 Act, the Complainant has properly named her employer, Pinnacle Airlines, Inc., as a respondent, by alleging that it discriminated against her in retaliation for protected activity. However, the Complainant has not alleged that she was ever employed by Mesaba Airlines, and thus it is not properly named as a respondent under AIR 21, which prohibits air carriers and contractors or subcontractors from discriminating against their employees.

   By the same token, the Complainant does not allege that she has ever been an employee of Northwest Airlines Corporation, NWAC, Northwest Airlines, Inc., or NWA, Inc. Nor do her allegations of denial of opportunities for employment or promotion, or denial of a longevity increase, even implicate any party other than Pinnacle Airlines, Inc., her current employer.

   Similarly, the Complainant does not allege that any of these entities took any action against her, or that she reported any activity on their part that she reasonably believed violated the mail, wire, bank, or securities fraud statutes, and thus she has failed to state a claim for relief under the Sarbanes-Oxley Act. As Pinnacle Airlines, Inc., is not a publicly traded company, she has not stated a claim for relief against it under the Sarbanes-Oxley Act.

   Finally, the Complainant's initial complaint to OSHA alleged that these parties "illegally" requested sanctions in 2003 AIR 12. As I ruled on March 5, 2003, the only proper Respondent in that case was Pinnacle Airlines, Inc. Despite my repeated directions to the Complainant that Pinnacle Airlines, Inc. was the only Respondent, the Complainant persisted in naming multiple parties as respondents in her pleadings. However, the fact that the Complainant would like these parties to be respondents does not make it so. As Pinnacle Airlines, Inc. was the only party Respondent in 2003 AIR 12, it is the only party that could have asked for sanctions in that case.

   The whistleblower statutes, including all six environmental whistleblower statutes as well as the AIR 21 Act, require that a complainant prove that he or she suffered an adverse action at the hands of the employer, in retaliation for protected activity. An adverse action is one that affects the complainant's terms or conditions of employment. The Complainant has alleged that the Respondent "illegally" sought sanctions for her refusal to cooperate in discovery in 2003 AIR 21. Setting aside the fact that the applicable rules of procedure allow a party to seek sanctions in connection with an opposing party's failure to cooperate in discovery (See 29 C.F.R. Section 18.1; Fed.R.Civ. Pro. 37(a)), the Respondent's request for sanctions does not in itself constitute an adverse employment action, nor has the Complainant alleged that it had any tangible job consequences. Thus, the Complainant has not stated a claim of action against the Respondent with respect to this allegation.

   Request to Consolidate Proceedings

   The Complainant has requested that I consolidate this matter for hearing with 2003 AIR 12. However, on December 10, 2003, I issued my Decision and Order granting the Respondent's request for summary judgment in that case. Thus, the Complainant's request is moot.

   Request to Bar Mr. Hall and Piper Rudnick LLP

   The Complainant alleges that Mr. Hall and his law firm have "direct financial conflicts of interest in litigation," in that they have financial options to purchase public stock in NWAC, Northwest Airlines, Inc., Pinnacle Airlines, Inc., d/b/a Northwest Airlink, and Mesaba Airlines, d/b/a/ Northwest Airlink. Setting aside the fact that stock is not publicly traded in at least one of these entities (i.e., Pinnacle Airlines, Inc.), the Complainant has not explained how, even if Mr. Hall and his law firm owned these entities lock, stock, and barrel, their representation of them in this case constitutes an impermissible conflict of interest.

   The Complainant appears to be upset with the fact that I barred her former counsel, Mr. Edward Slavin, from representing her in 2003 AIR 12. I did so because of Mr. Slavin's actions in those proceedings, in particular his failure to follow my directives, and his continued disrespect to this Court and opposing counsel. Despite the fact that the Complainant continues to characterize Mr. Hall's actions as "unethical," "improper," and "illegal," I find that Mr. Hall has done nothing to warrant his dismissal as Respondent's counsel in this proceeding.

   Nor does the fact that the Complainant has listed Mr. Hall on her witness list require that he be excused as counsel for the Respondent. I note that just because the Complainant has listed Mr. Hall does not necessarily mean that I will allow her to call him as a witness at a hearing.

   Accordingly, on the basis of the foregoing, IT IS HEREBY ORDERED:

1. The only party Respondent in this proceeding is Pinnacle Airlines, Inc. All other parties named by the Complainant, either before OSHA or before the Office of Administrative Law Judges, are dismissed. No parties other than Pinnacle Airlines, Inc. shall be designated as the Respondent on future pleadings.

2. The Complainant's request that Mr. Hall and his law firm, Piper Rudnick LLP, be prohibited from representing the Respondent in this matter is denied.

3. The Complainant's request for consolidation with 2003 AIR 12 is denied.

4. The Complainant's claim that the Respondent violated the AIR 21 Act, and the Environmental Whistleblower Acts by asking for sanctions in 2003 AIR 12 is dismissed, as the Complainant has not stated a cause of action upon which relief can be granted. Hearing will proceed on the Complainant's allegations that she was denied employment and promotion opportunities, and a longevity increase by the Respondent, in retaliation for her protected activity.

5. The Complainant's request for relief under the Sarbanes-Oxley Act is denied.

6. There is no provision for filing pleadings by e-mail. Therefore, the Complainant is directed to discontinue sending her pleadings to this office by e-mail.

SO ORDERED.

      LINDA S. CHAPMAN
      Administrative Law Judge