Szpyrka v. American Eagle Airlines, Inc., 2002-AIR-9 (ALJ July 8, 2002)

U.S. Department of Labor

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

Case No. 2002-AIR-9

Issue date: 08Jul2002

    PETER SZPYRKA,
       Complainant

       v.

    AMERICAN EAGLE
    AIRLINES, INC.,
    Respondent.

Before: Stuart A. Levin
    Administrative Law Judge

   This matter arises pursuant to a complaint filed under the Wendal H. Ford Aviation Investment and Reform Act, 49 U.S.C. 42121(hereinafter, "AIR 21") by Complainant Peter Szpyrka, an airline captain employed by American Eagle Airlines. American Eagle is a regional airline and a subsidiary of AMR Corporation. Captain Szpyrka alleges that American Eagle reprimanded and suspended him on May 25, 2001 and July 20, 2001 in retaliation for recording safety-related mechanical deficiencies in aircraft maintenance logs causing the removal of aircraft from passenger transport service and necessitating costly repairs.

   In response, American Eagle denies Captain Szpyrka's claim of retaliation. It contends that its actions merely responded to information which revealed to it that Captain Szpyrka was noting mechanical discrepancies at remote locations or "outstations" where American Eagle had no mechanics, grounding aircraft and rerouting passengers, not out of concern for public safety but as an expression of dissatisfaction with American Eagle. Following an investigation OSHA entered Findings and a Preliminary Order in favor of Captain Szpyrka, and American Eagle requested a hearing. The parties have now cross-moved for summary decision pursuant to 29 C.F.R. §18.40. Both motions will be denied.

   In general, AIR 21 is invoked when:

1) An employee engages in a protected activity or conduct;
2) The respondent knew, actually or constructively, that the employee engaged in the protected activity;
3) the employee suffered an unfavorable personnel action; and
4) the circumstances were sufficient to raise an inference that the protected activity was likely a contributing factor in the unfavorable action.

   Summary decision may be entered pursuant to 29 C.F.R. Section 18.40(d) under circumstances in which no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. See, Gilliam v. Tennessee Valley Authority, 91-ERA-31, at 3 (Sec'y, Aug. 28, 1995); Flor v. United States Dept. of Energy, 93-TSC-1, at 5 (Sec'y, Dec. 9, 1994); See, Pickett v. T VA, 2000-CAA-0009, (Aug. 9, 2000). The party opposing a motion for summary decision "must set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. § 18.40(c). See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Only disputes of fact that might affect the outcome of the suit will properly prevent the entry of a summary decision. Anderson, 477 U.S. at 251-52. In determining whether a genuine issue of material fact exists, however, the trier of fact must consider all evidence and factual inferences in favor of the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Held v. Held, 137 F.3d 998, 999 (7th Cir. 1998). Thus, summary decision should be entered only when no genuine issue of material fact need be litigated. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 Sup. Ct. 486 (1962); Rogers v. Peabody Coal Co., 342 F.2d 749 (6th Cir. 1965).

   Captain Szpyrka has worked as a pilot for American Eagle since 1991. For the past two years, he has served as a captain aboard a turboprop Saab 340 based out of JFK Airport in New York. In December 2000, he began noticing, during pre-flight inspections, conditions such as missing placards, bare metal, and damaged propellers which he wrote up as aircraft maintenance discrepancies. Under the FARS and company

procedures, pilots who observe maintenance discrepancies must write them up where they find them, and American Eagle maintenance personnel are then required to make a decision either to defer the discrepancies for future repairs or repair the aircraft on the spot. In May and July of 2001, however, Captain Szpyrka noted discrepancies at airports where American Eagle lacked maintenance personnel, and, as a consequence, flights were delayed or canceled, and passengers re-booked. The day following one such write-up involving defective propeller blades on an aircraft in Manchester, NH, Captain Szpyrka contends that American Eagle retaliated by suspending him and issuing him a "second advisory" letter.

   American Eagle agrees that it took the actions alleged, but it vigorously denies that the deficiency notations had anything to do with the suspension or the "second advisory" letter which it issued to Captain Szpyrka. It claims that Captain Szpyrka, while waiting for a permit to ferry the plane to Albany, spoke with Susan Marcella, American Eagle?s general manager in Manchester, and "shocked" her with his comments. After the meeting, Marcella reported to her boss, Jackie Loisage, Director of the New York Region, that:

[Mr. Szpyrka] came into my office.... [He] said to me, "I could have run this plane from here to California without any problem." I asked him what he meant by that and he said that he could have run the flight to LGA [LaGuardia] with the passengers and had the plane fixed there but wanted to do it in an outstation. I asked him why and he said, "Well, doesn?t it cost more to have Contract Maintenance fix a plane than it does our own mechanics?" I said yes it does . ... And he said, "I hate Eagle. They don?t treat me right." He also stated his last 4 day trip, which consisted of 16 flights, of those 16, 9 were cancelled due to aircraft he grounded.... (Szpyrka Dep. Ex. 6; Marcella Dep. 59).

   American Eagle contends that, based upon Marcella's information, it merely acted to remove Captain Szpyrka from service pending an investigation to determine whether he was carrying out a threat to increase maintenance costs by purposefully writing up plane-grounding discrepancies in places where American Eagle did not have mechanics. Moreover, because he was paid during the times he was removed from

service, this case is, as American Eagle sees it, about a "second advisory" letter informing Captain Szpyrka that: (1) on two occasions in late May 2001 he told managers that he "hated" the company and was purposefully running up the company?s maintenance costs; and (2) his conduct was unsatisfactory and in violation of company rules of conduct. In its view, the complaint should, therefore, be dismissed because:

(1) Neither withholding Captain Szpyrka from service (with full pay and benefits) nor the advisory letter constituted adverse action;

(2) Captain Szpyrka did not engage in protected activity within the scope of AIR 2l; and

(3) Captain Szpyrka cannot establish that management?s concern over his threat intentionally to increase the company?s costs was not the real reason for the advisory letter.

   Under these circumstances, American Eagle believes summary decision in its favor would be appropriate. Captain Szpyrka believes otherwise. He contends that protected actions, related to the furnishing of aviation safety information to the company, were a contributing factor in the decision to take adverse personnel action against him, and, therefore, he is entitled to summary decision. A review of the cross motions filed in this matter reveals that each party's claim to summary decision is misplaced.

   Initially, Captain Szpyrka denies that he wrote up maintenance deficiencies at outstations for the purpose of elevating costs and harming the company, but demands summary decision even if he did act maliciously, because AIR 21 would, as a matter of law as he understands it, protect such a vendetta if implemented under the guise of a pre-flight inspection. As he reads 29 C.F.R. §1979.109 and the AIR 21 whistleblower provision, American Eagle acted improperly if the "protected behavior or conduct was a contributing factor in the unfavorable personnel action..." Marano v. Department of Justice. 2 F.3d 1137, 1140 (Fed. Cir. 1993); See, Taylor v. Express One International 2001-AIR-2 (AU Feb. 15, 2002, Slip. Op. at 26)

   Yet, while the breadth of the whistleblower language in Air 21and its implementing regulations may lighten the burden imposed upon a complainant in establishing a prima facie case, it does not necessarily compel summary decision when safety-related and non-safety related factors impel an employee's action. Whistleblower case law suggests that such circumstances may necessitate a fact-dependent inquiry which focuses on the true impulses which motivated the employee's actions. See e.g., Zurenda v. J&K Plumbing and Heating Co., Inc., 97 STA 16 (ARB, 1998). Thus, an employee is protected when his actions address the public policy concerns embodied in the Act. In contrast, actions premised upon personal pecuniary interests, employee convenience, or irritation with management, however, may not rise to the level of an activity Congress intended to protect. This is not to suggest that an airline captain with other grievances losses AIR21 protection in fulfilling his or her pre-flight inspection or other duties; however, the circumstances here present raise genuine issues of material fact involving disputed accounts of exactly what Captain Szpyrka may have said, witness credibility, and motivational factors which render summary decision on his motion inappropriate.

   American Eagle attacks Captain Szpyrka's complaint on several grounds. It notes that AIR21 establishes two primary categories of protected activity: (1) providing information about a violation of provisions of the FAA or federal air carrier safety law to either the employer or the federal government," and (2) filing or involvement in proceedings relating to such violations. It does not, it argues, protect aviation industry employees who merely enter observations in aircraft maintenance logs since such entries do not in and of themselves constitute either violations of the FAR or a proceedings within the meaning of AIR 21. As American Eagle understands the scope of AIR 21, it may be designed to promote air safety and public confidence in air transport, but it, nevertheless, stands mute in protecting an aircrew from coercion, harassment, or retaliation intentionally designed to thwart or discourage a crew member, such as an airline captain, from reporting pre-flight discrepancies which delay flights or ground aircraft.

   American Eagle's interpretation of the reach of AIR 21 seems a bit too narrow. To be sure, it is not the existence of the pre-flight discrepancy which constitutes a violation, and a crew member's notation in a maintenance log is not a proceedings. Yet, an attempt to retaliate for, interfere with, or improperly influence the performance of a duty required by the FAR may trigger the protections of AIR 21. Consequently, if an airline seeks retribution against an aircrew member for performing required safety-

related missions or if it engages in harassment, intimidation, or coercion in an attempt to interfere with an aircrew member's duty in the future, honestly and objectively, to carry out pre-flight inspection and reporting obligations, the airline's action may implicate the broad, remedial protections afforded by AIR 21. Since the circumstances which may constitute such interference are fact-specific, summary decision would be inappropriate.

   American Eagle contends further, however, that there is no need to get the federal government involved because pilots who are treated unfairly for pointing out maintenance needs are not without recourse. The industry, it is argued, is heavily unionized and company-union agreements typically protect against discipline or discharge of workers without just cause. Yet, by enacting the provisions of AIR 21, Congress manifested the clear intent not to delegate protection of whistleblower's in this industry to an informal, private union/management employment grievance process. The legislative enactment protects not just the employee whose personal interests are at stake; AIR 21 triggers a Congressional mandate to foster the public interest in whistleblower activities involving commercial aviation safety issues. As such, deference to private processes is unwarranted.

   American Eagle next argues that it took no adverse action against Captain Szpyrka, and AIR21 protects only against tangible adverse actions not relatively insignificant workplace slights such as the second advisory letter it issued to him. Yet, Respondent's Vice President of Flight Operations described the "second advisory" letter as "disciplinary," and there are indications in the record that such letters render an employee more susceptible to discharge, become part of the employee?s personnel file, and are subject to disclosure to third parties under the Pilot Records Sharing Act. Unlike the situation in Shelton v. Oak Ridge Nat?l Labs, 95-CAA-19 (ARB, 2001), this was no "oral reminder" with no tangible negative impact on the complainant. In this instance, the actual and potential impact of such a letter on ultimate employment decisions effecting Captain Szpyrka's future, such as hiring, pay, promotion, and retention, raise a genuine issues of material fact for trial.

   Moreover, the letter was issued under American Eagle?s "Peak Performance through Commitment" Policy (PPC); an employment policy designed to promote coaching and corrective action when employee problems surface. The PPC policy is allegedly not punitive but provides instead that "in dealing with employees whose job performance or conduct is unacceptable," the company "will not ‘punish? an employee; we will work to correct the behavior." Yet if, as Captain Szpyrka argues, the letter was intended to coerce him into overlooking pre-flight discrepancies in the future or issued in retaliation for grounding airplanes in need of maintenance, it was not as benign as Respondent would have me believe. Use of the PPC policy as a pretext to retaliate against an employee protected by Air 21 would be actionable. Consequently, both the motivation for issuing the letter and its impact on Complainant involve disputed issues of material fact best addressed at trial.

   While describing its action as a mere workplace slight, American Eagle asserts that the letter and the removal from service were justified by rather weighty considerations; reports of Captain Szpyrka's animus toward the company and conduct intended to harm it financially. This contention, like Captain Szpyrka's discussed above, however, is predicated upon acceptance of one version of a disputed set of facts, and disputed facts must be resolved at trial.

   It is apparent that elements both of Captain Szpyrka's case and American Eagle's defense involve genuine issues material fact which can only be resolved after a full opportunity to develop an evidentiary record at trial. Summary decision, under such circumstances, is not appropriate. 29 C.F.R. §18.40. Accordingly:

   IT IS ORDERED that the Motions for Summary Decision filed by Complainant and by Respondent, respectively, be, and each hereby, is denied.

      Stuart A. Levin
      Administrative Law Judge