Sixth Circuit Affirms DOL Dismissal of Pilot's Retaliation Claim

Over the years (beginning in the 1970's) Congress has added a number of retaliation provision that are enforced by the Department of Labor.  Complaints are filed with OSHA (which has a special team of whistleblower investigators), a hearing is held before a DOL ALJ (there is no jury trial) who issues written findings which the losing party can appeal to a body called the Administrative Review Board (ARB), and from there, to one of the federal courts of appeals.

The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C. § 42121, added a retaliation provision that protects certain pilots who make safety-related complaints (I'm not being exact).  Today, the Sixth Circuit issued a decision involving a pilot ("Hoffman") who filed an AIR21 complaint against his employer (NetJets) alleging he was not promoted because he had made safety complaints about several aircraft he piloted.

There are some irrelevant procedural quirks to the decision. The only one that matters here is that this was not a summary judgment decision.  The question for the Sixth Circuit was whether the evidence supported the DOL ARB's ruling in favor of the employer.  The legal challenge came down to why others were promoted to an "initial operating experience (IOE) instructor."  The vacancy announcement for the position was pretty general.  It did not say anything about having international flight experience.  The employer, however, was having trouble recruiting pilots who could fly internationally so it wanted the instructor to have the ability to train the existing pilots.   This was a preferred, but not required, qualification.  The pilot, of course, lacked international flight experience and was not promoted. 

Normally, the absence of a crucial qualification from the position vacancy doesn't bode well for the employer when there is a challenged to a promotion decision.  It didn't hurt the employer here, however.  The court explained why:

even though international experience was not listed in the May 2004 IOE instructor position announcement, there was evidence that NetJets was indeed interested in promoting pilots who possessed such experience. This evidence included the following: Decker [Director of Flight Standards] testified that NetJets was having trouble qualifying pilots to fly their international routes and thus needed instructors who could train pilots in this area; the documentation shows that every candidate was individually evaluated in his or her amount of international experience; five of the seven successful candidates possessed such experience, and of these five, four received three points in the international experience category, the highest-possible score for the category; and Hoffman was questioned about his international experience during his interview. This undercuts Hoffman’s argument that the international-experience category, like the point system in general, was only a pretext to deny him a  promotion. Hoffman points out that two pilots received zero scores for international experience and were promoted nonetheless.  However, NetJets never contended that international experience was required for the promotion, only that it was preferred. Moreover, there is a stark comparison between these two successful candidates and Hoffman: even without any international-experience points, these two candidates received total scores of five and six, respectively, whereas Hoffman received a total score of only one.

 So while the better practice is to include all important criteria in the position vacancy announcement or the job description, it is not automatically fatal where the employer consistently evaluated every candidate using the criteria it failed to include in the position vacancy announcement and the promotion decision(s) reflect the fact that the criteria was in fact important to the selection decision.