DOL Administrative Review Board affirms AIR 21 whistleblower complaint, remands decision for recalculation of awarded back pay

August 17, 2011 - Comments Off

In the case of Ameristar Airways, Inc., et al v. Administrative R, (5th Cir. 2011) the Department of Labor Administrative Review Board (“ARB”) has affirmed its earlier decision to declare Ameristar’s Airways, Inc.’s 2003 termination of its Director of Operations to be retaliatory.  However, the ARB remanded the decision for reconsideration of calculation of back pay awarded to the whistleblower on the recognition that one of Ameristar’s proffered justifications for the termination based on after-acquired-evidence would have indeed been grounds for termination in the absence of the protected activity.

Thomas E. Clemmons served as the Director of Operations for Ameristar Airways, Inc. from his hire in September 2002 until his termination in January of 2003.  In that position, Clemmons was responsible for hiring and scheduling pilots, maintaining pilot training records, and updating manuals and required navigational information.  Shortly after being hired, Clemmons routinely raised concerns that Ameristar’s scheduling practices violated the Federal Aviation Administration’s (“FAA”) requirement that each flight crew member be relieved from duty for at least 8 consecutive hours during any 24-hour period.  He formally complained by email to his manager, the head of dispatch, and the company President on December 12, 2002.  He also raised concerns about Ameristar’s requirement that all pilots consult with headquarters officials before recording any maintenance issues in their logbooks, which he believed also violated FAA regulations.  Finally, in December, Clemmons complained to the head of dispatch that Ameristar was sharing another airline’s call sign without FAA approval.  Clemmons and his chief pilot discussed these issues with an FAA official on January 7, 2003.  Ameristar management was aware of this meeting and terminated Clemmons on January 20, 2003, for what the ARB concluded was in fact retaliation for his contacts with the FAA.

Just prior to his termination, on January 13, 2003, Clemmons sent an email to the company’s pilots explaining that the schedules they received with a 15-day-on-, and 6-day-off-duty sequence were drafted by other Ameristar officials after they repeatedly rejected his effort to comply with a “two weeks on and one week off” policy by alternating 14 days on-duty and 7 days off-duty.  In the email Clemmons referred to Ameristar President Thomas Wachendorfer as “Mr. Wackmeoffendorfer.”  Clemmons announced that he was hoping to leave Ameristar, and would help the pilots draft their own resignation letters and support their unemployment claims.  Importantly, though Clemmons now admits the email to have been insubordinate, unprofessional, and grounds for termination, Ameristar was not aware of the email until two months after Clemmons’s termination.

Clemmons filed a claim for unemployment benefits with the Texas Workforce Commission shortly after his termination.  Ameristar contested the claim, explaining to the Commission in its filings that Clemmons was terminated for failing to produce the most economical work schedules for the pilots, as well as his allegedly poor handling of other tasks.   When the Commission ordered an award of unemployment benefits, Ameristar appealed, citing the January 13 email for the first time at its June 30 hearing before the Commission, causing the Commission to reverse its decision and deem Clemmons ineligible for unemployment benefits.

Clemmons filed a complaint with the Secretary of Labor, alleging that Ameristar had terminated him in retaliation for raising the compliance concerns, in violation of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR 21”).  An Administrative Law Judge found in Clemmons favor and ordered Ameristar to award Clemmons back pay, interest, costs, and attorney’s fees.  Ameristar appealed the decision to the Administrative Review Board, which affirmed the Judge’s decision.

The ARB again affirmed that “we have little trouble concluding that Clemmons presented a prima facie case of retaliation,” and that of the six reasons Ameristar proffered for his termination, each was pretextual, because “an inference of pretext could be drawn from Ameristar’s shifting explanations” over time.

The ARB remanded the decision, however, to reconsider the question as to the period it used for the back pay calculation.  Though the ARB found that Ameristar’s citation of the insubordinate January 13, 2003, email was pretextual based on evidence that the terminating officials were not aware of the email until two months after the termination, Ameristar insists that it would have terminated Clemmons for the email when it learned of it on March 28, 2003 had he not been terminated earlier.  Back pay was initially awarded from his actual termination through July 2004, past the date Ameristar would have otherwise terminated Clemmons.  The ARB remanded the decision for recalculation of back pay, citing Supreme Court precedent that “where there is after-acquired evidence of wrongdoing that would have led to termination on legitimate grounds had the employer known about it, [back pay should be limited to the period] from the date of the unlawful discharge to the date the new information was discovered.”

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