On November 3, 2001, Mr. Svendsen made a routine safety report about a dirt race at the Parker Airport. A week later, he was called to Denver for a meeting without being informed of the purpose. At that time, he was terminated because of his report to the Parker police. The termination took just 30 seconds and he did not have an opportunity to explain why he called the police. On December 12, 2001, he filed his AIR 21 discrimination complaint.
Concerning the various reasons Air Methods has presented to support its action, Mr. Svendsen first notes that while he did receive an order form for a uniform, he never saw the other two pilots at the Parker Airport wear a uniform. Noone ever approached him about the uniform requirement. The first time he received notice of the company's concern was at the Denver meeting.
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Next, Mr. Svendsen has a problem with only one flight nurse. He doesn't understand why Mr. Titus made a complaint. Mr. Titus never approached Mr. Svendsen with his concerns. Mr. Titus could not have observed Mr. Svendsen call the FAA about Air Methods because Mr. Svendsen never made any such calls. Mr. Svendsen's clothes appeared rumpled because he rested wearing his clothes due to the short response time from notification to take off. Mr. Svendsen and the other pilot, Herbert, as new pilots did have some issues with Air Methods' operations. However, he never downgraded the Guardian Air supervisor, Ms. Hansen.
Turning to the stated expense report problem, Mr. Svendsen observed that he only submitted one expense report directly to Denver after collecting receipts for about two months. Rather than explain the correct process to Mr. Svendsen, the base manager made a decision not to reimburse Mr. Svendsen without even discussing the issue with him. So, in response, Mr. Svendsen sent an appeal to the chief pilot, indicating that the denial of reimbursement was unfair. As explanation, Mr. Svendsen indicated that he did try to contact the base manager prior to the expenditures. When those efforts failed, he followed the dispatcher's instructions to purchase gas for the aircraft tug and to get the tug repaired. Mr. Svendsen does not believe he should be required to carry expenses for Air Methods.
About the unauthorized flight allegation, Mr. Svendsen's short test flight was authorized by the owner of the aircraft, Guardian Air. Likewise, in regards to abandoning a medical crew in Kingman, Mr. Svendsen once again just followed the instructions of the Guardian Air dispatcher.
Finally, Mr. Svendsen reported the dust obstruction problem on November 3, 2001 because it was not posted as a NOTAM (notice to airmen) and he was concerned about other pilots' safety. When he reported the situation to the Prescott Flight Service Station ("FSS"), he was told to contact the airport manager or the police. Since Mr. Kelly, the airport manager, was not there and Mr. Svendsen was not able to talk to him, he called the police. He didn't want to stop the race. Mr. Svendsen only wanted to advise other pilots of the visibility hazard. However, one of the airport employees probably became upset when he asked for the phone number for the police. Eventually, Mr. Svendsen called the police and a truck watered the track to keep the dust down.
As relief, Mr. Svendsen seeks re-instatement and back pay.
Both due to an inadequate prima facie case and in light of Air Methods clear and convincing evidence of non-discriminatory reasons for termination of his employment, Mr. Svendsen's complaint under the Act should be dismissed.
Under the Act, Mr. Svendsen is required to establish a prima facie case of discrimination consisting of four elements before Air Methods is required to make any response. Mr. Svendsen has failed to present the requisite prima facie case because his testimony does not establish any of the elements. First, Mr. Svendsen did not show that Air Methods is a carrier subject to the Act. Second, Mr. Svendsen's complaint about blowing dust at the Parker Airport was not reasonable in objective terms. Although Mr. Svendsen may have subjectively considered the dust an air safety hazard, his belief was not objectively reasonable because a NOTAM had already been published about the potential hazard and in reality the dust did not prevent flying at the Parker Airport on that day. Third, Mr. Svendsen's testimony does not establish that Air Methods was aware of his dust complaint. Fourth, Mr. Svendsen's belief that he suffered an adverse action due to his complaint does not raise an inference that his complaint contributed to his employment termination.
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If Mr. Svendsen fulfills the requirements of a prima facie case, his complaint should still be dismissed because the clear and convincing evidence in the record, consisting of two independent and intervening events, shows Air Methods would have taken the same discharge action even in the absence of his November 3, 2001 dust complaint. A few days after the dust complaint, Mr. Titus, an employee of Guardian Air which used Air Methods transportation assets, informed Guardian Air and Mr. Svendsen's supervisor of his unprofessionalism and derogatory comments about the operations of Air Methods and Guardian Air. Additionally, about the same time of his dust complaint, Mr. Svendsen also presented an insubordinate letter to the chief pilot of Air Methods. According to the chief pilot, Mr. Svendsen's letter, standing alone, provided a sufficient basis for his termination. Consequently, when the corporate managers met with Mr. Svendsen and considered his case, they found multiple performance-based reasons, unrelated to any safety complaints, for terminating his employment.
ISSUES
1. Whether the Complainant, Mr. Jan Svendsen, engaged in a protected activity under AIR 21.
2. If the Complainant, Mr. Jan Svendsen, engaged in a protected activity as an employee of the Respondent, Air Methods, whether the protected activity contributed in part to the decision by the Respondent to terminate the employment of the Complainant.
3. If the Complainant, Mr. Jan Svendsen, establishes that his protected activity contributed in part to his termination, whether the Respondent, Air Methods, has demonstrated by clear and convincing evidence that it would have terminated the Complainant, even in the absence of the protected activity.
1Subsequent to the hearing, I received notice of Ms. McNamee's name change.
229 C.F.R. Part 1979, Vol 67 Fed. Reg. 15454, Interim Final Rule, effective April 1, 2002.
3The following notations appear in this decision to identify specific evidence: CX - Complainant exhibit; RX - Respondent exhibit; JX - Joint exhibit; ALJ - Administrative Law Judge exhibit; and, TR - Transcript of hearing.
6At the hearing, Mr. Svendsen withdrew CX 11 (TR, page 37) and Ms. McNamee withdrew RX 13 (TR, page 40). CX 10, CX 12, and CX 13 were offered and not admitted (TR, pages 36 and 474). For references purposes, I have attached CX 10, CX 12, and CX 13 to the record. Post-hearing, I received the document previously identified as JX 1, which redacted information confidential to the Respondent's business (see TR, pages 16 to 20). Based on the redaction, I have crossed out the term, "Confidential" on each page of JX 1 and now admit JX 1 into evidence.
7Initially, Mr. Svendsen testified this event occurred after his arrival at Phoenix and while he was waiting for the nurse to return from transporting the patient. Later, upon reflection, Mr. Svendsen set out a slightly different sequence of events.
8Mr. Svendsen testified that the medical crew did not ask him to stay and that TC instructed him to return to Parker. Resolving this factual dispute is not essential to the adjudication of Mr. Svendsen's case. Instead, my finding above merely documents that Mr. Grajeda sent such a letter to his Air Methods' supervisor, Mr. Freeman.
9Consideration of motive does not particularly help resolve the matter. Mr. Svendsen, as the complainant in this case, might benefit from a recollection that contains no inappropriate behavior towards Mr. Kelly. Somewhat in a similar manner, Mr. Kelly, as an employee of the Indian tribe whose race was reported to the police might feel some animosity towards Mr. Svendsen.
10When Mr. Grajeda told Mr. Svendsen about Mr. Kelly's complaint, Mr. Svendsen was silent, neither objecting to, nor correcting, Mr. Kelly's version of the incident.
11On November 14, 2001, Mr. Titus signed a letter to Mr. Grajeda setting out the various aspects of his complaint about Mr. Svendsen and added that Mr. Svendsen also threatened to make calls to friends in high places in the FAA about the operations. (RX 8 and Mr. Titus' testimony)
12At one point in the proceeding, Air Methods presented a jurisdictional challenge in that Mr. Svendsen had not established that Air Methods was an air carrier subject to the provisions of AIR 21. I note that the evidence in the case indicates that at the time of the alleged discrimination, Air Methods was providing flight services under an FAR Part 135 certificate to Guardian Air. That contractual relationship and service appears sufficient to subject Air Methods to the AIR 21 employee protection provisions.
Some argument was also presented that since Air Methods was an "at will" employer capable under state law of terminating employment with or without cause, concerns about the manner and reasons for Mr. Svendsen's termination may be irrelevant and not subject to close scrutiny, even under Air 21. Air Methods did not provide any legal authority to support the implication that an "at will" employer may not be subject to the employment discrimination provisions of AIR 21. Thus, inquiry into the stated reasons of complainant's termination remains appropriate. However, concerning the manner of termination, the Administrative Review Board ("ARB") recently observed that while the Federal employee protection provisions prohibit discrimination, they do not establish a code of sound personnel management. Gale v. Ocean Imaging, ARB No. 98-143, ALJ No. 1997-ERA-38 (ARB July 31, 2002). Consequently, in that case, the ARB reversed an ALJ's finding that the absence of progressive discipline established that the respondent's stated reasons for discharge were pretextual.
13The court in a case involving a protected activity discrimination complaint under the ERA, which contains similar employee protection provisions as AIR 21, Marano v. Department of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993), defined "contributing factor" as "any factor which, alone or in connection with other factors, tends to affect in any way" the decision concerning an adverse personnel action.
14I recognize the Administrative Review Board's position that in a fully litigated case in which the respondent presents evidence of a legitimate motive for the personnel action, the analysis of a prima facie case serves no analytical purpose because the final decision will rest on the complainant's ultimate burden of proof. SeeAdjiri v. Emory University, 97-ERA-36 (ARB July 14, 1998)and Carter v. Electrical District No. 2 of Pinal, 92-TSC-11 (Sec'y Jul. 26, 1995). However, despite some duplication of effort, I find that working through the prima facie elements useful because if the complainant, even in a fully litigated hearing, fails to establish an element of the prima facie case, the complainant's case fails.
I also note that Respondent's counsel argued in her closing brief (page 10), that I may only consider the evidence presented by Mr. Svendsen in making a prima facie determination. However, since the Respondent did not move for dismissal at the conclusion of Mr. Svendsen's case and presented evidence on its behalf, I will consider the entire record on the prima facie issue.
15According to Mr. Kelly, other air carriers, including Sun Care and Native American, fly in and out of Parker Airfield.
16While Mr. Svendsen might have received notice of the potential visibility hazard had he check with the airport operations, he was not under a requirement to do so because the airfield was uncontrolled.
17While Mr. Svendsen's call to the Prescott FSS sometime after 9:00 a.m. on November 3, 2001 about reduced visibility was clearly a protected activity, the existence of that particular report did not come to Air Methods' attention until quite some time after Air Methods' November 12, 2001 termination of Mr. Svendsen's employment (See Prescott FSS letter, dated December 16, 2001 (RX 16 )). Thus, as discussed later, since Air Methods was unaware of that particular visibility complaint, Mr. Svendsen would not be able to establish a prima facie case of discrimination based on his contact with the Federal authorities about the dust hazard on November 3, 2001.
18See Conway v. Valvoline Instant Oil Change, Inc., 91-SWD-4 (Sec'y Jan 5, 1993).
19 Since Mr. Svendsen has failed to establish the requisite case in chief, I need not address the third issue of Air Methods' affirmative defense that it would have separated Mr. Svendsen even in the absence of the November 3, 2001 event.