Aviation Whistleblower Has Judgment Affirmed By Labor ARB

March 21, 2013

Aviation safety whistleblowers saw a welcome decision come out of the Administrative Review Board (“ARB”) of the Department of Labor (“DOL”) on January 31, 2013, in the case of Van v. Portneuf Medical Center.  The case, brought by helicopter mechanic Mark Van, alleged that Portneuf Medical Center (“PMC”) violated the anti-retaliation provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”) when the company terminated him in retaliation for raising concerns about helicopter safety.  An administrative law judge (“ALJ”) for the DOL agreed with Van and granted him damages in the amount of just under $500,000 and attorneys’ fees in excess of $200,000.  PMC appealed the judgment to the ARB.

Van had been employed by PMC for almost 20 years when, in October 2004, he informed Barry Nielsen, a helicopter pilot at PMC, that Nielsen had flown his helicopter with ice or frost on its rotors, in violation of Federal Aviation Administration (“FAA”) Regulation 14 C.F.R. § 135.227(a), which states that “[n]o pilot make take off an aircraft that has frost, ice, or snow adhering to any rotor blade.”  In response, Van informed Nielsen of his error and emailed the company’s Chief Pilot, Ron Fergie, to recommend implementing a policy to protect against similar mistakes in the future.  Van’s proposal was subsequently adopted by company, which implemented the policy in January 2005.

In February 2005, however, Van once again discovered that a pilot had failed to properly de-ice the rotor blades before use.  Van emailed his concerns to administrators at the hospital.  Receiving no response, Van sent multiple follow-up emails.  In March 2005, Van brought up his safety concerns during a hospital leadership meeting.  At this point, emails began circulating between PMC executives.  A meeting was called between Van, the pilots whom he had accused of violating safety procedures, and hospital administration.  A few weeks after the meeting, Van was terminated, allegedly due to his “inability to maintain positive interpersonal relationships.”

While PMC contended that the ALJ’s conclusions in favor of Van were founded on legal error, the ARB disagreed.  The ARB upheld the ALJ’s determination that: (a) PMC violated the employment protection provision of AIR 21 when it terminated Van after he complained about the air safety measures taken for the helicopter utilized by the Hospital’s Life Flight program during cold weather conditions; (b) Van’s complaints about air safety were activity protected by AIR 21; (c) his protected activity contributed to the adverse action he suffered; and (d) his termination constituted an adverse action under the Act.

PMC argues that Van did not possess a reasonable belief of an FAA violation because he failed to present evidence that a PMC pilot ever actually took off with frost, ice, or snow adhering to a rotor blade.  However, the ARB noted that Van was not required to prove an actual violation of a law or regulation related to air safety.  Rather, he needed only establish a reasonable belief that his safety concern was valid.  PMC further contended that Van’s safety concerns were no longer reasonable – and therefore no longer protected – once PMC adopted its cold weather policy based in part on Van’s recommendations.  The ALJ, however, found that due to the February 2005 incident, it was reasonable for Van to believe that the cold weather policy was not being properly followed and that there were ongoing safety concerns.  Having rejected all of PMC’s arguments against the ALJ’s decision, the ARB dismissed the appeal and upheld the ALJ’s ruling in favor of Van.

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