Taylor v. Express One International, Inc., 2001-AIR-2 (ALJ Nov. 21, 2001)

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Taylor v. Express One International, Inc., 2001-AIR-2 (ALJ Nov. 21, 2001)

U.S. Department of Labor Office of Administrative Law Judges
Heritage Plaza Bldg. - Suite 530
111 Veterans Memorial Blvd
Metairie, LA 70005
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Issue date: 21Nov2001

CASE NO.: 2001-AIR-2

IN THE MATTER OF:

GLYN TAYLOR, JR.
Complainant

EXPRESS ONE INTERNATIONAL, INC.
Respondent

ORDER DENYING MOTION FOR
SUMMARY DECISION

On November 2, 2001, Respondent filed a "Motion For Summary Decision and Brief In Support." Respondent alleges that Complainant has failed to meet his substantive burden by timely informing Respondent of a serious safety violation on September 18, 2000, which led to his termination on September 25, 2000. It is also alleged that Complainant failed to meet his procedural burden by timely filing a complaint under the Wendall H. Ford Aviation Investment and Reform Act for the 21st Century, Pub. L. No. 106-181, 114 STAT. 61 (herein AIR21) with the Department of Labor (herein DOL) within the 90-day time limits prescribed by the statute.

Complainant's failure to report the safety incident purports to be the legitimate, non-discriminatory business reason for his termination from Respondent.

On November 13, 2001, Complainant filed a "Response to Respondent's Motion."

[Page 2]

Respondent contends that Complainant flew and landed an Express One plane with a tail stand installed which should have been identified and included in the pre-flight checklist and removed prior to flight pursuant to the Federal Aviation Administration (herein FAA) requirement. It is asserted that Complainant made an entry of the installed tail stand in his Aircraft Log Book but did not inform Respondent's Vice-President of Flight Operations of the incident despite two separate discussions with the latter during Complainant's route or flight assignments. Complainant purportedly did not acknowledge the incident until specifically questioned about it and thereafter provided a written report at Respondent's request which allegedly contained "minimal factual information." On September 25, 2000, Complainant was terminated by Respondent pursuant to the "at will" provision of Express One's policies.

In his response, Complainant avers that on September 18, 2000, the tail stand was "overlooked by the flight engineer on his pre-flight inspection" and remained attached to the aircraft for the "duration of the flight." Complainant spoke with Operations but contends the versions of the conversation "differ greatly." Although he was instructed to prepare a written incident report, he purportedly was told "that nothing would come of it." He acknowledged receiving his termination letter on September 29, 2000.

Respondent concedes that it received notification of Complainant's complaint by letter dated February 9, 2000, from the Regional Supervisor of the Occupational Safety and Health Administration (herein OSHA). Respondent argues that AIR21 requires the filing of a Complaint with the Secretary of Labor within 90 days after the date of an alleged violation, which Complainant failed to do. Moreover, Respondent represents that the DOL investigative file of Complainant's case "contains copies of letters sent to other governmental agencies, including the FAA, but there is no complaint form filed with the DOL and no indication of any oral or written complaint made directly to the DOL . . . prior to December 24, 2000," 90 days after his September 25, 2000 termination.

Respondent acknowledges that, in deposition, Complainant testified he telephoned OSHA to report his termination for "raising safety concerns," but could not remember the name of the person contacted. (Respondent's Exhibit No. 8, pp. 16-17). Complainant could not remember if he was asked to send a report in or given a file number or tracking number. Id., at 18. His next contact with OSHA occurred in January 2001 when the OSHA investigatior informed him of the receipt of documents from the FAA and his assignment to investigate Complainant's allegations. Id. at 18-19. Thus, Respondent argues that Complainant failed to file a complaint with DOL as required by AIR21 and that the Secretary of Labor's findings support a conclusion that Complainant's complaint of October 18, 2000 was "timely filed by reference" with the Inspector General of the FAA.

Conversely, Complainant contends he filed timely complaints with OSHA and the FAA. He asserts he telephoned the Austin, Texas office at 3:14 p.m. on September 29, 2000, and spoke to Jerry Keans or Kearns, according to "my notes," which were not provided with his instant Response. (Complainant's Exhibit No. 7). Moreover, the substance of the "contact" with OSHA is not otherwise delineated in Complainant's Response. He also filed an Inspector General Complaint Form on October 18, 2000, alleging his termination for reporting matters of FAA Compliance and Safety. (Complainant's Exhibit No. 7). Further, Complainant avers Respondent had knowledge of "Complainant's" allegations to FAA based on FAA's letter of October 5, 2000 to Respondent, which pre-dates Complainant's October 18, 2000 Complaint. (Complainant's Exhibit No. 4).

[Page 3]

Lastly, Respondent contends Complainant cannot show that he engaged in activity protected by AIR21 and that his participation in such activity was a "contributing factor" in the decision to terminate him. On the other hand, Complainant contends he engaged in internal complaints to Respondent and external complaints to the FAA about safety matters.

DISCUSSION

Jurisprudence involving AIR21 has not been well-developed as noted by the parties. The new whistleblower protection provision of AIR21 will be enforced by the Secretary of Labor who has delegated that responsibility to OSHA.¹ It is recognized that OSHA presently enforces Whistleblower provisions under various environmental laws and in specific industries, such as the nuclear and motor freight industries, under the Energy Reorganization Act (ERA), Surface Transportation Assistance Act (STAA) and the Comprehensive Environmental Response and Compensation and Liability Act (CERCLA).

It is further noted that the FAA and OSHA are in the process of developing a Memorandum of Understanding establishing a procedure for coordinating and supporting enforcement of AIR21 with respect to the investigation of employees who provide air safety information and for resolving jurisdictional questions. (See Complainant's Exhibit No. 8; Harry A. Rissetto, et al., The Expansion of OSHA's Jurisdiction In The Airline Industry, October 2000, A.L.I.-A.B.A. Airline and Railroad Labor and Employment Law at 749).

The statutory scheme established by AIR21 essentially mirrors the protective provisions of the prevailing nuclear, environmental and motor freight statutes. The exceptions are that AIR21 provides extraordinary powers to OSHA to order immediate reinstatement of airline employees upon a showing of reasonable cause and places a more stringent "clear and convincing" standard upon an employer in defense of its adverse employment action. Accordingly, the jurisprudence developed by the Secretary of Labor for the existing whistleblower statutes will be applied herein.

The standard for granting summary decision is set forth at 29 C.F.R. §18.40(d)(2001). See, e.g., Webb v. Carolina Power & Light Co., Case No. 93-ERA-42 @ 4-6 (Sec'y July 17, 1995). This section, which is derived from Fed. R. Civ. P. 56, permits an administrative law judge to recommend decision for either party where "there is no genuine issue as to any material fact and . . . a party is entitled to summary decision." 29 C.F.R. § 18.40(d). Thus, in order for Respondent's motion to be granted, there must be no disputed material facts and Respondent must be entitled to prevail as a matter of law. Gillian v. Tennessee Valley Authority, Case Nos. 91-34 @ 3 (Sec'y August 18, 1995).

[Page 4]

The non-moving party must present affirmative evidence in order to defeat a properly supported motion for summary decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). It is enough that the evidence consists of the party's own affidavit, or sworn deposition testimony and a declaration in opposition to the motion for summary decision. Id. at 324. The determination of whether a genuine issue of material fact exists must be made viewing all evidence and factual inferences in the light most favorable to Complainant. Trieber v. Tennessee Valley Authority, Case No. 87-ERA-25 (Sec'y Sept. 9, 1993).

The purpose of summary decision is to pierce the pleadings and assess the proof, in order to determine whether there is a genuine need for a trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Where the record taken as a whole could not lead a trier of fact to find for the non-moving party, there is no genuine issue for trial. Id. at 587.

In considering the appropriateness of a motion for summary decision under the employee protection provisions of the Energy Reorganization Act, provisions which are analogous to those applicable in this matter, the Secretary has noted that where there is no protected activity nor any discrimination as a result of protected activity, there is no cause of action. Richter v. Baldwin Assocs., Case No. 84-ERA-9, @ 3 (Sec'y Mar. 12, 1986). Under Richter, "any facts which are probative of whether a complainant engaged in protected activity or whether adverse action taken against the complainant was in retaliation for a protected activity are material facts. A dispute as to such probative facts demands the denial of a motion for summary decision and requires that a hearing be held to resolve the disputed facts." Id. The Secretary amplified this standard in Bassett v. Niagara Mohawk Power Co., Case No. 86-ERA-2 (Sec'y. July 9, 1986), wherein she stated that "it is not required that every element of a legal cause of action be set forth in an employee's . . . complaint." Id. @ 4.

Lastly, the U.S. Supreme Court has cautioned that "summary procedures should be used sparingly . . . where motive and intent play lead roles . . . It is only when witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised." Pollar v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 Sup. Ct. 486, 491 (1962).

Accordingly, in order to withstand Respondent's Motion, it is not necessary for Complainant to prove his allegations. Instead, he must only allege the material elements of his prima facie case. Bassett, @ 4. Whether the alleged acts actually occurred or whether they were motivated by the requisite animus are matters which cannot be resolved conclusively until after the parties have presented their evidence at a formal hearing.

Complainant's complaint allegations, if proven, would be strongly suggestive that Respondent has violated the underlying AIR21 Act. The substance of these allegations goes directly to the subject matter regulated by AIR21, and while the evidence may ultimately fail to sustain Complainant's contention that he engaged in protected activity of which Respondent was allegedly aware, his complaint is neither unduly speculative nor subjective.

[Page 5]

Regarding the alleged safety violation of September 18, 2000, or substantive burden, it is immediately apparent that Respondent's challenges of Complainant's allegations are fact-specific. That is, they are based on interpretations and characterizations of events that allegedly occurred. The inferences that Complainant urges should be drawn from these events are obviously quite different from those urged by Respondent. In the final analysis, it is impossible to conclude that the disputes over the incident alleged by Respondent and disputed by Complainant and the credibility of potential witnesses are anything other than factual in nature and therefore constitute a singularly inappropriate basis for summary disposition.

As the applicable precedent establishes, Complainant need not prove his case at this point in these proceedings. He has alleged that he was subjected to adverse action as a result of expressing his concerns regarding Respondent's compliance with safety and regulatory standards of the FAA, and that is enough.

Viewing the events Complainant describes in his complaint and Response in the light most favorable to his position, I conclude that he has "set forth specific facts showing that there (are) . . . . genuine issue[s] for trial." Treiber v. Tennessee Valley Authority, @ 5. Although Respondent has provided excepted deposition testimony and argument which contradict Complainant's version of the events in certain respects, Complainant has addressed this evidence and argument in a sufficient manner to convince me that there is a legitimate dispute regarding the factual circumstances involved herein such that summary disposition of this matter is inappropriate. Regardless of whether Complainant can prove his case at hearing, he has done enough to entitle him to the opportunity to be heard.

The alleged procedural burden of the timeliness of Complainant's complaint filing also requires a full evidentiary hearing.

The Courts have held that time limitation provision in like statutes are not jurisdictional, in the sense that a failure to file a complaint within the prescribed period is an absolute bar to administrative action, but rather are analogous to statutes of limitation and thus may be tolled by equitable consideration. School District of the City of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981); Coke v. General Adjustment Bureau, Inc. 64 F.2d 584 (5th Cir. 1981); and Donovan v. Hakner, Foreman & Harness, Inc., 736 F.2d 1421 (10th Cir. 1984). The Court in School District of the City of Allentown warns, however, that the restrictions on equitable tolling must be scrupulously observed; the tolling exception is not an open invitation to the courts to disregard limitation periods simply because they bar what may be an otherwise meritorious cause. Accord, Ross v. Dole, 945 F.2d 1331, 1336 (6th Cir. 1991).

In School District of the City of Allentown, the court noted the principal situations where tolling might be appropriate are where a respondent actively misled the complainant respecting the cause of action; or where the complainant has in some extraordinary way been prevented from asserting his rights; or a complainant has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum. Id., at 19-20.

[Page 6]

Of the three prevailing situations recognized, Complainant argues that he presented his statutory claim verbally to OSHA and in writing to the FAA neither of which is the wrong forum and arguably conforms to the filing requirements of AIR21. Moreover, Complainant appears to argue confusion existed about the proper forum in which his complaint should have been filed and that, as late as March 2001, such ambiguities still exist.

As noted by Complainant the Secretary has tolled the statute of limitations for filing in a STAA context based on a showing of a verbal (telephone) contact with an OSHA office. Kovas v. Morin Transport, Inc., Case No. 92-STA-41 (Sec'y Oct. 1, 1993). The viability of an application of equitable tolling requires the development of all material facts during a formal hearing.

In view of the foregoing, I find that there are clearly genuine issues of fact present which cannot be resolved without a full evidentiary hearing.

Factually, it is apparent that Complainant alleges in his complaint filed with the undersigned and in the instant Response that he engaged in protected activity prior to the effective date of AIR21, but was terminated after the effective date. To the extent such alleged protected activity can be shown to be the basis of Respondent's motivation or intent to engage in adverse action against Complainant, Complainant is entitled to present such evidence in his case-in-chief. However, Complainant cannot rely upon such alleged events as evidence of independent violations by Respondent unless they were the subject of a properly filed and timely complaint under AIR21.

Accordingly,

IT IS HEREBY ORDERED that Respondent's Motion for Summary Decision be, and it is, DENIED.

ORDERED this 21st day of November, 2001, at Metairie, Louisiana.

LEE J. ROMERO, JR.
Administrative Law Judge

[ENDNOTES]

¹ Delegation of Authority and Assignment of Responsibility to the Assistant Secretary For Occupational Health and Safety, 65 Fed. Reg. 50017 (August 16, 2000).