Fifth Circuit Affirms AIR 21 Pilot Whistleblower Retaliation Award

The U.S. Court of Appeals for the Fifth Circuit recently ruled in favor of a pilot-employee in a retaliation lawsuit, Continental Airlines v. Administrative Review Board.1 Although the primary issue was whether the airline’s conduct supported the pilot’s retaliation claim, the case also provided the court with an opportunity to clarify what types of internal reports may be covered by “AIR 21”—a federal law that encourages airline employees to report certain safety violations.  The court also determined that under AIR 21 compensation is appropriate where reinstatement is not possible.

AIR 21

The Wendell H. Ford Investment and Reform Act for the 21st Century, known as AIR 21,2 was enacted by Congress in 2000 and provides “whistleblower” protection for airline employees who notify authorities that their employer is violating aviation safety laws. AIR 21 is administered by the Occupational Health and Safety Administration (OSHA), an agency of the U.S. Department of Labor (DOL).


The Continental decision involved a long-time pilot with Continental, Roger Luder, who was suspended by the airline in 2007 for logging turbulence that had occurred on an earlier flight.  His log entry, which was based solely on information given to him by his co-pilot about a conversation with the co-pilot from the previous leg of the flight, triggered an inspection of the aircraft which resulted in a delayed flight.  Specifically, Luder was told that the turbulence had hit with a force that almost “ripped the wings off”, sent a flight attendant for medical treatment and appeared “pink” on the radar.  In cases of severe turbulence, FAA regulations require that the incident be noted in the logbook and the aircraft be inspected before it is flown again.  Luder entered a notation of severe turbulence on the earlier flight based on the above information and requested that Continental inspect the aircraft.  Continental’s Operations Control responded by ordering him to proceed with boarding, which he refused to do.  In a subsequent telephone call with several Continental officials, the Assistant Chief Pilot advised Luder that no inspection was needed because the turbulence on the earlier flight had been moderate and not severe.  Luder hung up on the call.  When they called back, Luder threatened to report Continental to the FAA.  Continental then inspected the aircraft and found no defects.  The inspection caused a delayed departure of the flight.

Following an investigation, Luder was suspended without pay for 21 flight hours and given a termination level warning for future improper conduct. According to Continental, the sanctions were imposed because Luder had acted in an “unprofessional” manner and had not followed Continental’s procedures.

Subsequent to his suspension, Luder was required to undergo flight simulator training and, after performing poorly on the first day, was ordered to return for a second day. He did not return and ultimately was removed from flight status.  Luder then began to undergo mental health treatment.  According to his doctors, his mental health problems did not exist before the inspection incident.

Administrative Review and Award

Luder filed a complaint with the Department of Labor, alleging that his suspension constituted an unlawful retaliation. An Administrative Law Judge (ALJ) agreed and the Administrative Review Board (ARB) affirmed the ALJ’s decision but remanded for further findings on damages.  Upon remand, the ALJ found that Continental caused Luder’s mental health decline and granted front-pay—i.e., compensation for future lost wages—until he reached retirement age.  The ARB agreed on the causation finding but limited Luder’s front-pay damages to the date of his last medical treatment.

Continental appealed to the U.S. Court of Appeals for the Fifth Circuit, arguing that Luder’s actions were not protected by AIR 21 because he provided information unrelated to a federal safety law and, even if the information did relate to a safety violation, Luder’s belief regarding the severity of the turbulence incident on another flight, which was based solely on secondhand information, was unreasonable. Continental also challenged the front-pay award.

Fifth Circuit Appeal

When reviewing findings of fact, the question before the appellate court is whether such findings are supported by substantial evidence. The Fifth Circuit pointed out that this standard of review is “highly deferential” to the factfinder and “requires only ‘that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion.’”  Based on this standard, the appellate court concluded that the ARB’s finding that Luder reported an alleged violation of federal law was supported by substantial evidence.  Specifically, the court determined that, by logging the turbulence incident, Luder effectively reported a violation by the pilot for the previous flight for failing to log his encounter with severe turbulence.  In addition, by challenging Continental’s refusal to conduct an inspection that he reasonably believed was required by the flight operations manual, Luder reported that his employer tried to cause him to violate FAA regulations.  Moreover, the court found that there was substantial evidence supporting the finding that Luder’s belief that the aircraft had encountered severe turbulence was reasonable.

The court then analyzed whether Continental’s post-incident treatment of Luder supported a finding of unlawful retaliation. It agreed with the ARB that Continental’s suspension of Luder was an adverse employment action—one that would dissuade a reasonable worker from engaging in protected conduct—and that his protected conduct (his logbook entry of severe turbulence and demand for an inspection) contributed to the adverse employment action. The court rejected Continental’s argument that it suspended him because of his unprofessional behavior and failure to follow procedures, finding substantial evidence that Continental’s proposed alternative reasons were pretextual.3

The Fifth Circuit also found substantial evidence supporting the ARB’s front-pay award. The court explained that the remedy provided by AIR 21 is intended to “make an employee whole” and, where possible, to reinstate the employee to his or her former position.  However, where reinstatement is not possible, front-pay is available.  In Luder’s case, the court rejected Continental’s argument that Luder did not continue to suffer a loss after his suspension ended.  Rather, Luder presented substantial medical evidence showing that he “suffered a precipitous decline in mental health” after Continental’s actions and that this loss continued until his last date of medical treatment.  Accordingly, the Fifth Circuit upheld the ARB’s award of front pay damages until the last date of his medical treatment.

1           __ F. App’x __, No. 15-60012, 2016 WL 97641 (5th Cir. Jan. 7, 2016).

2           49 U.S.C. § 42121.

3           To prove that an employer’s action is “pretextual,” a plaintiff must show that the employer’s explanation for its action was false and that discrimination was the real reason for the action. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).