Ferguson v. Boeing Co., 2004-AIR-5 (ALJ Apr. 5, 2004)

U.S. Department of Labor

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

Issue Date: 05 April 2004

In the Matter of

CHARLES D. FERGUSON
    Complainant

    v.

BOEING COMPANY
    Respondent

Case No. 2004-AIR-00005

   On January 26 and January 28, 2004, respondent filed motions for summary judgment in this case which arises under the employee protection provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. §519 ("AIR 21"). The January 26th is a motion for summary judgment on the merits; the January 28th motion contends that the complaint filed with this Department was untimely. In an Order issued on January 30, 2004, I denied the motion for summary judgment on the merits, but ordered the complainant to show cause why summary judgment should not be granted on the timeliness motion. The complainant filed a timely response to the show cause order, and the respondent filed a timely reply. I hold that the case must be dismissed.

   In Williams v. Lockheed Martin Corp., ARB Nos. 99-54 & 99-064, OALJ Nos. 1998-ERA-40, 42 (Sept. 29, 2000), the Administrative Review Board stated:

    The standards applicable to summary decision are rooted in the Office of Administrative Law Judges (OALJ) regulations as well as Board and federal court case law. OALJ Rule 18.40, 29 C.F.R. §18.40, which is modeled on Rule 56 of the Federal Rules of Civil Procedure, permits an ALJ to enter a summary decision for either party where "there is no genuine issue as to any material fact and . . . a party is entitled to summary decision." Id. . . . In deciding a motion for summary decision, we view the factual evidence in the light most favorable to the nonmoving party.

   The material facts in this case are not in dispute or will be viewed in the light most favorable to the complainant. The complainant was employed by McDonnell Douglas Helicopter Company, a subsidiary of Boeing, as a sheet metal mechanic/inspector at the Mesa, Arizona, Apache attack helicopter plant. On or about April 20, 2002, complainant found out that his supervisor, Doug Austin, had made an unauthorized modification to a part from an Apache helicopter. He confronted Austin about the problem, and when he was not satisfied with Austin's explanation, he complained to Boeing's Ethics Hotline. He was told by the hotline investigator to make a complaint to his supervisor, but since Austin was his supervisor he spoke to the Program Director, Donnie McGlothlin, instead.

   On April 24th , Austin held two meetings at which he discussed the incident that occurred on April 20th. Complainant believed he was being harassed by Austin for making his hotline complaint, so he went to Boeing's EEO Officer, Miguel Gonzales, and asked Gonzales to investigate the situation. Gonzales allegedly became concerned that there would be a confrontation between the complainant and Austin, so he placed the complainant on paid leave. On May 1, 2002, when he still had not been permitted to return to work, complainant filed a complaint by email with the Department of Defense Inspector General ("DoD IG") "regarding the fraud he felt Austin had perpetrated [by performing the unauthorized modification]." (Claimant Charles D. Ferguson's Combined Brief Showing Cause Why His AIR 21 Complaint Should Not Be Dismissed As Untimely and Response to Respondent Boeing Company's Motion For Summary Judgment – hereinafter "Complainant's brief" -- at 3). His complaint was labeled "Fraud, Waste, and Abuse Complaint," although it did state that his supervisor's conduct "ís putting the airmen's lives and others in jeopardy." (Complainant's brief at Exhibit B). The complainant was asked to come back to the plant on May 6th to meet with an investigator, Joe Casaro, and an attorney, Stephen Snodgrass, in regard to his hotline complaint. He was told at that time that he could not return to work until his allegations were resolved. Then on May 8th complainant filed another complaint by email with the DoD IG alleging that he was afraid he was going to lose his job "for notifying the DOD of possible fraud by an employee of a Government Contractor[.]" ( Id. at Exhibit C). In fact, complainant stated that he had found out on that day that he was going to be terminated on the 9th (Id. at Exhibit E).

   As complainant expected, he was fired on May 9th. The memo terminating his employment stated that he was being fired for engaging in the following conduct: physically striking a co-worker; making racially discriminatory statements to and about co-workers; making false, demeaning and possibly defamatory statements to and about co-workers; seeking to intimidate or initiate a confrontation with a co-worker; making false statements about complaints to Ethics; verbally abusing female vendor personnel; making demeaning or disrespectful statements about Boeing executives; and interfering with an EEO investigation. The memo went on to state that the complainant was removed from the workplace on April 24th as a result of this conduct, and that he had received verbal and written counseling during the past six months regarding his workmanship, performance and communications. Finally, the memo stated that "the [EEO] investigation did not reveal harassment of or retaliation against you by your first-line managers." (Id. at Exhibit D).

   On August 11, 2002, complainant again wrote to the DoD hotline to find out what was happening with his complaint (id. at Exhibit E). In this letter, he specifically stated that he was terminated due to his May 1, 2002 complaint to the DoD hotline. Complainant, who in the meantime had moved back to his native Oklahoma, emailed Sen. Inhofe of Oklahoma on October 20, 2002 regarding his complaint that a fellow Boeing employee performed unauthorized work on aircraft bound for the United Kingdom which he alleged constituted fraud against the United States.¹ On February 7, 2003, the Defense Contract Management Agency ("DCMA"), which administers the DoD contract with Boeing's Mesa, Arizona, Apache helicopter plant and to whom the complainant's email ultimately was referred, wrote to Sen. Inhofe. In its letter (id. at Exhibit I), DCMA noted that the complainant had filed a complaint or complaints about unauthorized work done at various times, which led to two investigations. These investigations turned up a single instance of unauthorized work which led to the worker's being reprimanded. The complainant's remaining charges were found to be without merit.

   On July 1, 2003, complainant again wrote to Sen. Inhofe (and also Sen. McCain of Arizona) complaining that his fraud claim and firing is getting swept under the rug (id. at Exhibit F). Sen. Inhofe's office referred this letter to the Occupational Safety and Health Administration ("OSHA") on July 18, 2003. This constitutes the claim under AIR 21 which led to this adjudication. In response to a request from OSHA (id. at Exhibit G), complainant further explained the basis of his complaint against the respondent in a July 31, 2003 letter to OSHA Regional Supervisory Investigator Lawrence Ricci.²

   Respondent cites complainant's failure to file a complaint with OSHA within 90 days of the alleged violation, as is required under AIR 21 (see 49 U.S.C. §42121(b)(1)), as grounds for dismissal. The Deputy Regional Administrator of OSHA discussed the timeliness issue, but he found the complaint timely because "OSHA will accept a whistleblower complaint as timely even if it is filed with another government agency if the complaint is about protected activity and is filed within the statutory time requirements." Since the complaint made to the DoD IG was filed within 90 days of the adverse action (actually, it was filed a day before the adverse action), the Deputy Regional Administrator found it to be timely.

    Although the Deputy Regional Administrator did not use the term "equitable estoppel" (also called "equitable tolling") in finding that the complaint to OSHA was timely, that is the doctrine he was applying. It is proper for a court to apply equitable tolling under three very limited conditions: "[1] [when] the defendant has actively misled the plaintiff respecting the cause of action, [(2)] [when] the plaintiff has in some extraordinary way been prevented from asserting his rights, or [(3)] [when] the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum." (Sch. Dist. of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981) (quoting Smith v. Am. President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978) (internal quotation marks omitted; emphasis added)). There are two corollaries of the third condition.

¹ This email is not in the exhibits filed by the parties. However, the contents of that email are summarized by Daniel McGinty, Director, Congressional and Public Affairs, Defense Contract Management Agency, to whom complainant's email was finally referred after it was sent by Sen. Inhofe's office to the Federal Aviation Administration. (See Complainant's brief at Exhibit I).

² That letter was attached to the November 3, 2003 letter from the Deputy Regional Administrator of OSHA to this Office notifying OALJ that OSHA had denied the complainant's AIR 21 complaint.