iIn an unpublished decision, the Fifth Circuit affirmed pilot Roger Luder’s win in his AIR21 whistleblower claim against Continental Airlines. The decision in Cont’l Airlines, Inc. v. Admin. Review Bd. underscores the broad scope of whistleblower protection for employees in the airline industry.
Summary of Facts
As Luder was preparing to pilot an aircraft on the last segment of a three-segment trip, he learned that the aircraft encountered significant turbulence. In particular, he was informed that the turbulence hit with a force that almost “ripped the wings off,” sent a flight attendant to the medical clinic for treatment, and appeared “pink” on the airplane radar.
Luder checked the aircraft logbook and found no documentation of the turbulence. He then logged the severe turbulence and contacted Continental’s Operations Control in Houston to order an inspection. Under 14 C.F.R. § 91.9, a pilot must comply with the airline’s Flight Operations Manual and Continental’s manual required that pilots log all encounters with severe turbulence during a flight and order an inspection of the aircraft.
Luder contacted Operations Control to order an inspection and Operations Control ordered Luder to board passengers for the flight. Luder refused and received a call from Continental officials, including Assistant Chief Pilot Kip Komidor. Komidor told Luder that an inspection was not necessary because the turbulence was moderate. Luder hung up the phone and when Komidor called him back, Luder threatened to contact the FAA.
Continental inspected the aircraft, which delayed take-off by over thirty minutes. Shortly thereafter, Continental suspended Luder without pay for twenty-one flight hours and threatened him with termination for future improper conduct.
AIR21 Protected Whistleblowing
Under AIR21, protected whistleblowing includes providing information relating to any violation or alleged violation of any FAA order, regulation, or standard. The court found that by logging severe turbulence, Luder engaged in protected whistleblowing. In particular, logging the turbulence entailed reporting a violation by the previous pilot for failing to log his encounter with severe turbulence. And by challenging Continental’s refusal to conduct an inspection of the aircraft, Luder was reporting Continental’s attempt to cause Luder to violate FAA regulations by not complying with the Flight Operations Manual.
Broad Scope of Retaliation Prohibited by AIR21
AIR21 prohibits a wife range of retaliatory employment actions, including any action that would dissuade a reasonable worker from engaging in the protected conduct. The court found that suspension without pay is a way to dissuade employees from engaging in protected conduct, and thus, Continental’s suspension of Luder for two weeks without pay was an adverse employment action.
Whistleblowing Was the Real Reason for the Suspension
Continental asserted that it suspended Luder because of his heated telephone conversation with Assistant Chief Pilot Komidor. But the court found that the real reason for the termination of Luder’s employment was his refusal to agree with the dirction of his supervisors to forego an inspection of the aircraft following severe turbulence. The court noted that under 14 C.F.R. § 91.3, Luder had the authority to decide that the plane was unsafe to operate under and had final authority as to the operation of the aircraft. Therefore, he acted appropriately by insisting that Continental inspect the aircraft.
