5th Circuit Sides with Employees in AIR21 Whistleblower Lawsuits

January 25, 2016

To protect the public by, among other things, encouraging air industry employees to report violations of federal air-safety regulations, Congress enacted the Wendell H. Ford Investment and Reform Act for the 21st Century, commonly known as AIR21. AIR21 prohibits airlines from taking actions that discourage employees from reporting violations, such as terminating or suspending those employees, and provides remedies to employees who have suffered such acts of retaliation. Not only do these protections benefit airline employees, but they also are crucial to anyone who uses air travel. If employees feel protected when speaking up about safety, there is a higher likelihood that they will report such issues when they arise.

In light of these benefits, the Jan. 7, 2016, decision of the U.S. Court of Appeals for the 5th Circuit – Continental Airlines, Inc. v. Administrative Review Board, United States Dep’t of Labor – is great news for airline employees and passengers who are concerned about airline safety: it demonstrates both an expansive definition of what kind of internal reports are protected by AIR21 and a willingness by the 5th Circuit to award front-pay damages when reinstatement is not feasible.

The Continental AIR21 Whistleblower Case  

AIR21 is administered by the Occupational Health and Safety Administration (OSHA) at the Department of Labor (DOL). In Continental Airlines, the 5th Circuit affirmed a previous decision by the DOL’s Administrative Review Board (ARB). The ARB had held that Continental retaliated against a former Continental pilot, Roger Luder, after he blew the whistle on what he believed were violations of the FAA’s regulations. Importantly, the 5th Circuit also upheld the ARB’s determination that Continental must pay “front pay” – compensation going forward where reinstatement is not possible – due to the severe harm Continental’s actions caused Mr. Luder’s mental health, which prohibited him from working.

A long-time pilot with Continental, Mr. Luder took over a plane in Miami en route to Houston in September 2007. His copilot told Mr. Luder that he had learned from the previous co-pilot that during an earlier flight the plane had experienced such strong turbulence that it “nearly ripped the wings off” the plane. The turbulence was so serious that it had injured a flight attendant. FAA regulations require that severe turbulence be recorded in the logbook and that the plane be inspected before it is flown again. Mr. Luder, seeing that the previous pilot had not entered the turbulence in the logbook, entered it himself and called for Continental to inspect the plane as required by FAA regulations. He refused to board passengers when ordered to do so, and, when members of Continental management argued to him that no inspection was necessary because he had only second-hand information about the severity of the turbulence, he hung up the phone. When management called back, he suggested he would report the matter to the FAA. Continental did inspect the aircraft, which delayed departure by a half-hour and revealed no defects.

A few weeks later, Continental suspended Mr. Luder temporarily without pay and placed him on a termination-warning level of discipline, explaining that these sanctions were because Mr. Luder “call[ed] in an inspection” in an “unprofessional” manner without following Continental procedure.

Following his suspension, Mr. Luder called in sick for a required training session and, as a result, was removed from flight status. He was ultimately diagnosed with severe mental health problems, which his doctors found did not exist before Continental’s action. He was in medical treatment and unable to work until September 2011.

The 5th Circuit’s Continental Decision

The 5th Circuit held that several of Mr. Luder’s actions were protected by AIR21, including those that were less confrontational than those of many whistleblowers.

First, it held that his very logging of the turbulence in the logbook was effectively reporting a violation (i.e., the previous pilot’s failure to log severe turbulence). This is notable because, while Mr. Luder’s logbook changes were clearly visible to the company, he made them in the logbook itself rather than directly to management.

Second, his challenges to Continental’s refusal to inspect the plane, and his insistence on an inspection he believed was required even when Continental management disagreed, constituted a report that Continental was trying to cause him to violate FAA regulations even though he hung up the phone on management. The 5th Circuit found his actions to be protected despite Continental’s argument that Mr. Luder made his complaints in an “unprofessional” manner.

The 5th Circuit’s decision on front-pay is also noteworthy: it awarded Mr. Luder front-pay through the date of his last medical treatment in September 2011. Continental had argued that he suffered no loss after the suspension ended, based on his passing of one test that it claimed showed he was able to work. The 5th Circuit nonetheless held that the ARB’s whistleblower award of front-pay was justified based on the substantial medical evidence establishing Mr. Luder had suffered a “precipitous decline in mental health” after Continental’s actions and persisting until September 2011.

Continental Airlines is a great decision for air industry employees – and also for the flying public. All of us who travel on airplanes benefit from strong AIR21 protections that encourage airline employees to speak up when they see problems that could endanger passenger safety.

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