Petition for Writ of Certiorari — Robert Kreb, Petitioner v. Department of Labor
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App. 1
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT KREB,
Petitioner,
v.
U.S. DEPARTMENT
OF LABOR,
No. 20-73497
LABR No.
ARB Case No. 2018-0065
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Department of Labor
Submitted June 16, 2022**
Before: WALLACE, FERNANDEZ, and SILVERMAN,
Circuit Judges
Robert Kreb petitions for review of a final order of
the Department of Labor Administrative Review Board
dismissing his complaint alleging that his employer
fired him in violation of 49 U.S.C. § 42121. We have ju
risdiction pursuant to 49 U.S.C. § 42121(b)(4)(A). We
affirm the Board’s decision, unless it is arbitrary, capri
cious, an abuse of discretion, or otherwise not in accord
ance with law or the factual findings are unsupported
* This disposition is not appropriate for publication and is
not precedent except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
App. 2
by substantial evidence in the record as a whole. 5
U.S.C. § 706(2); Calmat Co. v. US. Dep’t of Labor, 364
F.3d 1117, 1121 (9th Cir. 2004). We deny the petition
for review.
Substantial evidence supports the administrative
law judge’s finding, as affirmed by the Board, that Kreb
did not engage in protected activity. See 49 U.S.C.
§ 42121 (defining protected activity and setting forth
the elements of a prima facie case). Specifically, Kreb
did not have a good faith, objectively reasonable belief
that his communications related to safety violations
because he exaggerated and misrepresented the risks
of the scheduled flight. Furthermore, he only raised
possible problems that might occur and could be safely
and appropriately resolved later in his shift. He also
failed to establish that a pilot with his training and ex
perience would have agreed that accepting the flight
assignment would have posed a safety risk.
We decline to consider issues not raised to the
Board or not properly raised in the the opening brief.
See 29 C.F.R. § 1979.110(a) (“The petition for review
[filed with the Board] must specifically identify the
findings, conclusions, or orders to which exception is
taken. Any exception not specifically urged ordinarily
shall be deemed to have been waived by the parties.”);
Coupar v. U.S. Dep’t of Labor, 105 F.3d 1263,1267 (9th
Cir. 1997) (as a general rule, an issue raised for the first
time on review and not considered in administrative
proceedings has been waived); Martinez-Serrano v.
INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (issues listed,
App. 3
but not argued in the body of the opening brief, have
been waived).
PETITION FOR REVIEW DENIED.
App. 4
[SEAL]
U.S.
Department
of Labor
Office of Administrative Law Judges
2 Executive Campus, Suite 450
Cherry Hill, NJ 08002
(856) 486-3800
(856) 486-3806 (FAX)
Issue Date: 06 August 2018
Case No.: 2016-AIR-00028
In the Matter of
ROBERT KREB
Complainant
v.
JACKSON JET CENTER
Respondent
DECISION AND ORDER DENYING RELIEF
This matter arises under the Wendell H. Ford Avi
ation Investment and Reform Act for the 21st Century
(“AIR 21”), which was signed into law on April 5, 2000.
The Act includes a whistleblower protection provision,
with a Department of Labor complaint procedure.1 Im
plementing regulations are at 29 C.F.R. Part 1979,
published at 67 Fed. Reg. 15453 (Apr. 1, 2002). The De
cision and Order that follows is based on an analysis
of the record, including items not specifically ad
dressed the arguments of the parties, and the applica
ble law.
1 Pub. L. 106-181, tit. V. § 519(a), Apr. 5, 2000, 114 Stat. 145.
See 49 U.S.C. § 42121.
App. 5
PROCEDURAL BACKGROUND2
Complainant filed an AIR 21 complaint with the
Occupational Safety and Health Administration
(“OSHA”) against Jackson Jet Center (“JJC” or “Re
spondent”) and Life Flight Network (“LEN”) on Octo
ber 7, 2014, and amended his complaint to include the
allegation of blacklisting in a letter dated June 10,
2015.3 In its August 4, 2016 letter, OSHA made the
2 The Tribunal is also aware that Complainant filed suit in
state court, that later was removed to federal district court (see
CX 21), where Respondent is one of the named parties, and in
cluded within that suit is an AIR 21 claim. Kreb v. Life Flight Net
work, LLC et al, Case No. 3: 16-cv-00444-REB, 2018 U.S. Dist.
LEXIS 42018 (D.C. ID., Mar. 12, 2018). In those proceedings, Re
spondent filed a motion for summary judgment, which the district
court granted as to Complainant’s AIR 21 claims. Id. at 8-9.
The Tribunal proceeds to issue this decision because a supe
rior court has not found that this Tribunal lacks jurisdiction over
the matter. Further, exclusive venue for AIR21 complaints lies
with the Office of Administrative Law Judges. Unlike other whis
tleblower statutes, AIR 21 does not contain a “kick-out” provision
to federal district courts. A complainant must exhaust his admin
istrative remedies before the Department of Labor, after which
judicial review lies with the appropriate Court of Appeals. See 49
U.S.C. § 42121(b)(4)(A); Bombardier v. U.S. Dep’t of Labor, 145
F.3d 21(D.C.D.C. 2015); see also Hobek v. Boeing, 2017 U.S. Dist.
LEXIS 115343 (D.S.C., Jun. 8, 2017) (magistrate report and rec
ommendation), adopted by, Hobek v. Boeing Co., 2017 U.S. Dist.
LEXIS 112939 (D.S.C., July 19, 2017). This also appears to be the
Idaho District Court’s position as well given its grant of defend
ant’s motion for summary decision on that portion of complain
ant’s case. Kreb, supra, at 8-9.
3 Throughout the hearing and in Complainant’s briefs he ref
erences “Respondents”. There is only one respondent in these pro
ceedings; the other party initially involved in this matter (LFN)
was dismissed prior to the hearing. See Procedural History, infra.
App. 6
following determinations: Complainant timely filed his
complaint; Respondent is an air carrier within the
meaning of the Act, and Complainant is a covered em
ployee. OSHA also found that he neither engaged in
protected activity nor was Complainant blacklisted.
Accordingly, OSHA dismissed the complaint. On Au
gust 17, 2016, Complainant objected to OSHA’s find
ings and requested a formal hearing before the Office
of Administrative Law Judges (“OALJ”).
Subsequently, on August 24, 2016, the under
signed received assignment of this matter. On August
26,2016, the Tribunal issued the Notice of Assignment
and Conference Call. Complainant responded to the
Notice of Assignment by letter dated September 9,
2016, and attached his statement, which was originally
transmitted as part of his Complaint to OSHA. Re
spondent also responded to the Notice of Assignment
on September 9, 2016, and submitted Initial Disclo
sures pursuant to 29 C.F.R. § 18.50(c)(l)(i) by letter
dated September 16, 2016. This Tribunal issued a No
tice of Hearing and Pre-Hearing Order on September
16, 2016, and set the hearing for May 8 through 12,
20174 in the Seattle area,
On February 24, 2017, following a Joint Request
to Move Hearing Date and Other Case Deadlines filed
on February 16, 2017, and subsequent teleconference
4 The original Notice of Hearing referenced May 8-12, 2016,
therefore on September 19, 2016 an Amended Notice of Hearing
and Pre-hearing Order was issued correcting this ministerial er
ror.
App. 7
held on February 21, 2017, this Tribunal issued an Or
der Rescheduling Hearing and Setting New Pre-hear
ing Deadlines. In this Order, the Tribunal rescheduled
the hearing for July 17 to 21,2017 in the Seattle, Wash
ington area.5
On April 21, 2017, LFN submitted a Motion for
Summary Decision. Complainant filed his response on
May 5,2017. On May 17,2017, Complainant filed a Mo
tion for Sanctions against Respondent for spoilation of
evidence. On May 31, 2017, Respondent submitted its
opposition to this motion.
On June 12, 2017, the Tribunal issued an Order
Denying Respondents’ Motion for Summary Decision
and Denying Complainant’s Motion for Sanctions.
On June 13, 2017, Complainant and LFN submit
ted a Joint Request to Approve and Seal Settlement
Agreement. On June 15, 2017, this Tribunal issued an
Order Approving Settlement Between Complainant
and Respondent Life Flight Network Only, Sealing Set
tlement Documents, and Filing Redacted Settlement
Documents.6
The parties submitted their prehearing state
ments and proposed exhibit lists on June 30, 2017. On
5 On June 30, 2017, the Tribunal issued a Notice of Hearing
Location informing the parties that the hearing would be held in
a U.S. District Court courtroom, in Tacoma, Washington.
6 On July 13, 2017, Complainant and LFN filed a request
that the claim against it be dismissed from this matter due to set
tlement. On August 15, 2017, the Tribunal issued an Order Dis
missing LFN and Amending Caption.
App. 8
July 7,2017, Respondent submitted objections to Com
plainant’s hearing exhibits and witnesses.
The Tribunal held a hearing in this matter in Ta
coma, Washington from July 17 to 20,2017.7 Complain
ant and Respondent’s representative were present
during all of these proceedings. At the hearing, this
Tribunal admitted Joint Exhibits (“JX”) 1 - JX 25,8 Re
spondent’s Exhibits (“RX”) 1-RX 83,9 Complainant’s
Exhibits (“CX”) 1-4, 13-15, 17, 18, 30-32, 35, 36, 40-44,
58, 61-64, 68-74, 84 (pages 1 and 2 only), 85, 89 and
91.10,11 In addition, portions of CX 95-98, which are dep
ositions, were also admitted.12 Both parties made an
opening statement. Tr. at 3-55.
Complainant submitted its closing brief on Sep
tember 29, 2017.13 Respondent submitted its closing
7 The Transcript of the July 17-20, 2017 proceedings will
hereafter be identified as “Tr.” Both parties provided brief opening
statements. Tr. at 31-55.
8 Tr. at 13.
9 Tr. at 16 and 687.
10 Tr. at 107,118, 120, 125, 171,198, 544, 750 and 764.
11 Additionally, at the end of the hearing the Tribunal specif
ically asked the parties to verify that these were the exhibits ad
mitted into evidence. Tr. at 748-50.
12 Only the portions of the depositions that were highlighted
by the parties using a marker were substantively admitted. Tr. at
881-85.
13 Hereafter referred to as “Compl. Br.”
App. 9
brief on November 3, 2017.14 Complainant filed its re
ply brief on November 20, 2017.15
This decision is based on the evidence of record,
the testimony of the witnesses at this hearing, and the
arguments by the parties.16
I.
FACTUAL BACKGROUND AND EVIDENCE
A. Stipulated Facts
The parties stipulated to the following facts at the
hearing:
•
Complainant, Robert Kreb, was employed as a
Fixed Wing Pilot by Respondent Jackson Jet
Center (hereinafter “JJC” or “Respondent”), to
fly Life Flight Network (hereinafter “LFN”),
Aircraft for air medical transport services
from December 27th, 2013 until July 10,2014.
•
JJC, Jackson Food Stores, Inc., and Conyan
Aviation collectively “The Entities” stipulated
14 Hereafter referred to as “Resp. Br.”
15 Hereafter referred to as “Compl. Reply Br.”
16 Although the Tribunal may not discuss every aspect of the
evidence in the analysis of this case, it has carefully considered
the entire record. See Antelope Coal Co./Rio Tino Energy America
v. Goodin, 743 F.3d 1331, 1350 (10th Cir. 2014) (citing Clifton v.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (“The record must
demonstrate that the AU considered all of the evidence, but an
AU is not required to discuss every piece of evidence.”)); Combs
v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 680 (May 22, 2018).
This Tribunal finds that any facts or opinions not addressed in
this decision are irrelevant, immaterial, or repetitious, and are
given no weight.
App. 10
with Complainant on April 19th, 2017 to their
joint employment of Complainant in the event
that any of The Entities are found liable un
der 29 USC § 42121 (AIR 21). If any of The
Entities are found liable for violations under
AIR 21, The Entities agree that they are
jointly and severally liable for any damages
that may be awarded to Complainant.
•
Under an agreement effective December 1,
2013, Conyan Aviation, d/b/a JJC, agreed to
employ Pilots under its Part 135 Certificate
for LFN’s Fixed Wing Air Medical Transport
Program until LFN obtained its Part 135 al
lowing LFN to employ Pilots directly.
•
Complainant was assigned to LFN’s base in
Lewiston, Idaho that was not yet opened at
the time of his hire. Due to some delays with
the opening of the Lewiston Base, Complain
ant was not assigned his first shift until Feb
ruary 25,2014. Complainant’s first LFN flight
assignment was on March 2nd, 2014.
•
On March 6th, 2014, Complainant received a
template copy of a Flight Risk Assessment
Tool form, “FRAT,” via e-mail from JJC Chief
Pilot Ryan Pike. Prior to that date, JJC Pilots
flying LFN missions did not complete a FRAT.
Prior to the beginning of his July 9, 2014 shift,
Complainant received an e-mail from Steve
Bower, Director of Operations for JJC, with in
structions to reposition Fixed Wing aircraft
N890WA from the Lewiston Base LWS to the
Dallesport Base, DLS, and then return with
App. 11
Dallesport Pilot Royce Graham in the morn
ing.
•
In the early morning hours of July 10, 2014,
LFN canceled the reposition request. On the
afternoon of July 10,2014, Mr. Pike communi
cated to Complainant that his employment
was being terminated.
Tr. at 8-9.
B. Testimonial Evidence
The sworn testimony of the witnesses who ap
peared at the hearing is summarized below.17
Robert Kreb (pp. 450-671 and 769-878)
Complainant was born in Seattle in 1973, grew up
in a military family and got to see the world, but he
spent his summers in Seattle. He eventually returned
to Washington State in 1991 to finish high school. He
started to go to college at Central Washington Univer
sity but dropped out, in part, to fly. While there he met
his wife whose family lives near Seattle. He started
17 In addition, the parties asked that the Tribunal consider
as substantive evidence extracts of certain depositions; specifi
cally those of Mr. Ronald Fergie (CX 97), Dominic Pomponio (CX
95), and BJ Miles (CX 98). In addition, although not specifically
admitted during the hearing, the parties clearly intended to offer
portions of Mr. Swakon’s deposition and the Tribunal clearly in
tended to accept portions of it as requested by the parties. Tr. at
884. Therefore, Mr. Swakon’s deposition will be identified as CX
99. As requested by the parties, the Tribunal has considered only
those portions of the deposition that the parties have highlighted.
App. 12
flying when he was in high school and lived next to an
airport when his family lived in Louisiana and earned
his private pilot’s license in 1993 or 1994. Over the
years Complainant has lost a couple of friends due to
aviation accidents. Eventually he moved to Eugene,
Oregon to continue his flying career, including doing a
brief internship with Horizon Airlines using a Metroliner, a SA-227. As he progressed he decided that he
wanted to pursue corporate air opportunities rather
than fly the airlines. After about three years, he and
his family moved to the Bay area where he was able to
get a job with an FBO, picking up flights here and
there. Towards the late 90s he was check-hauling,18 be
ing exposed to many different aircraft. Eventually he
flew right seat in a Metro in an executive configuration
and in a Merlin.19 He and his wife wanted to start a
family, so they returned to the San Juan area where he
picked up a job flying a Cessna 172, 206, and 207 for a
seasonal VFR Part 135 operation. The market im
proved so he joined Air Net flying as a check hauler.
This operation was in Ohio and his family did not move
there with him. He worked for them as a flouter for
about 14 months flying a Cessna 310, Cessna 208,
Piper Chieftain, and Beechcraft Baron 58. From there
he moved to West Virginia, where his family joined
him, and they stayed there 21/2 to 3 years. Eventually,
Complainant managed four pilots. Around the Spring
18 Check-hauling is term to reference the use of aircraft by
banks to move checks quickly through commerce.
19 It is unclear which “Merlin” he is referring to; however, the
Tribunal infers that he is referring to the Swearingen SA227 type
certificated aircraft.
App. 13
of 2005, he started his own air carrier and obtained his
own Part 135 air carrier certificate that operated out
of Charleston. However, by 2012 the company experi
enced several difficulties, so Complainant stopped be
ing a business owner and returned to being an
employee of a company. Tr. at 450-86.
Complainant applied for a position with LFN in
2013. At that time he held a commercial instrument
multi-engine certificate, but also held a single Airline
Transport Pilot certificate with a Learjet type rating.
He had about 11,000 flight hours by that time; 7,000
hours being in turbines and about 800-900 hours in
jets. Tr. at 486-88.
Complainant focused on EMS because he liked the
schedule and he found the work intriguing. Plus with
all of the attention the FAA and NTSB was giving EMS
and its safety, he thought it would be a good place to
be. He thought that with his prior experience he could
be a part of building something and join leadership or
management as they develop safety programs. He
liked the idea of having utilizing the medical crew dur
ing a flight for safety. He focused on LFN because he
wanted more than a job - he wanted a home. And he
thought that he might like to transition into rotorcraft.
At the time he applied, LFN had a variety of locations
in the Pacific Northwest. LFN’s advertisement for
Lewiston stated that it was opening a base there and
needed four pilots. Complainant felt this was an oppor
tunity to get his foot into the door. LFN had a relation
ship in Friday Harbor with EMS services out of the
Islands and he thought that, if he had a relationship
App. 14
with them, he could eventually get to work there. Tr. at
488-96.
After Complainant submitted his application he
was contacted by a HR person from LFN asking if she
could schedule a qualification interview with him. She
was excited about his Pilatus time and his Turbine
time. Ultimately he had a telephone interview with
LFN’s Director of Safety (“DOS”) (Mr. Miles), Helicop
ter Director of Operations (“DOO”) (Mr. Swakon), and
Chief Pilot (Mr. Fergie) in November 2013. During this
meeting, they disclosed that they did not currently
hold the fixed-wing certificate as they were still work
ing out the details. Mr. Miles mentioned that one of the
methods medical crews could report concerns was
through the Baldwin Reporting System. Tr. at 496-511.
At the time of his in-person interview in December
2013, Respondent was involved because of the delay in
LFN obtaining its fixed-wing air carrier certificate. Re
spondent would provide a backup fixed-wing certificate
if LFN’s certificate was further delayed. At the inter
view at the LFN facility in Boise were LFN’s Helicop
ter DOO and DOS, along with Mr. Bower from
Respondent. A few days after this interview he was of
fered a job with a salary between $65,000 and $66,000.
They did not discuss benefits at that time, but LFN had
promoted a generous benefits package: 401k, a health
care insurance program unmatched by the aviation in
dustry, dental, short and long term disability, pet in
surance, and family insurance coverage. Mr. Swakon
described these benefits to him; however, when he
started work for Respondent, the benefits were
App. 15
different than what LFN had promised during the in
terview. The plan required Complainant to contribute
to his own health insurance, and additional family cov
erage required an additional contribution of more than
$800 per month. He initially did not accept the offer,
but ultimately did. Tr. at 512-18.
After being hired, Complainant received some ad
ditional flight training in Orlando for 6 or 7 days. He
received Respondent’s employee handbook as part of
his in-processing. After returning from the Orlando
training, he was told that there was an issue with his
commercial driver’s license (CDL); however, his private
license was not impacted. Once Respondent notified
him there was an issue, he contacted the state back
East and took care of the issue. Apparently, there was
an outstanding ticket. He was not able to obtain a new
CDL from Washington State but was able to get a pri
vate driver’s license. During this time, he received no
assignments from Respondent so it did not impact an
ything at work. Tr. at 518-25.
Complainant’s work schedule was 7 days on, 7
days off, with 12 hour shifts. Because Respondent had
issues with obtaining aircraft, he did not start flying
until the end of January to the beginning of February
2014. They did receive base familiarization training for
Lewiston. Mr. Bower came down from Boise and they
did several approaches. Tr. at 526-27.
One of his duties working for LFN was refilling the
medical sled portable oxygen tanks. At Lewiston, the
App. 16
pilots were given access to LFN’s HEMS20 tool, which
is a weather-based utility for helicopters. Thru this
portal, Respondent’s pilots working LFN flights out of
Lewiston were able to look at LFN’s documents like
their employee handbook and GOM, and do such
things as getting the Baldwin Safety Certification.
They were encouraged by Respondent to utilize and
follow LFN’s policies and procedures. Mr. Miles, LFN’s
DOS, provided specific training and safety protocols for
Respondent’s pilots performing flights for LFN at
Lewiston. The Flight Risk Assessment Tool (FRAT) is
a tool to assist in good decision making, and had been
introduced to the pilots in March 2014. Complainant
stated that the only instruction provided on the FRAT
is contained in JX 9, though he also received an e-mail
about its use. The pilots did not receive any in-person
discussion or orientation about the FRAT. Tr. at 53035.
Mr. Miles addressed the FRAT in his training and
he had several slides about the “Just Culture” policy
that LFN employed. Feedback was an important com
ponent. CX 35 and CX 36 is a training and user guide
in connection with Mr. Miles’ training. Mr. Miles in
structed the pilots to complete an induction process
with the Baldwin System, which was their central col
lection for everything. Complainant was instructed to
use this system if he had any issues in the field, such
20 The Tribunal understands this acronym to stand for Heli
copter Emergency Medical Services tool.
App. 17
as issues with the FBO or a maintenance item. Tr. at
537-40.
Mr. Miles spend a lot of time talking about the lim
itations of the FRAT. For many conditions, a pilot is
simply unable to assign a numerical value. During his
training, Mr. Miles explained issues between manage
ment and pilots. Mishaps in air carriers can happen
when there is a labor dispute because the pilots’ atten
tions are not on the function of the job. Factors outside
the job can also impact safety; e.g., troubles at home, a
divorce, or a death in the family. Afterwards, Com
plainant approached Mr. Miles to talk about the linger
ing labor issues. Mr. Miles was concerned that the
pilots were carrying this baggage into the aircraft; that
they were unsafe with a lot of unresolved issues with
LFN and Respondent. This conversation occurred to
ward the end of June 2014. Tr. at 541-47.
July 8, 2014 was the first day that Complainant
worked during the week that he was fired. At about 1
p.m. Complainant received a call from Mr. Pike, Re
spondent’s Chief Pilot, who told him they had a sched
uling issue and asked him how soon he could start
work. Complainant later learned that Respondent had
scheduled a Portland pilot in both the Portland base
and the Lewiston for the same shift and he did not
show up that day shift. Complainant told Mr. Pike that
he could start work around 4 or 5 p.m. to start his shift
early. Complainant was a couple hours away from the
base and started driving to work. About one-half way
there he received a call from Craig Young, another
Lewiston based pilot, who told him that he would cover
App. 18
the last couple of hours of the shift and Complainant
need not come in until 8 p.m. Next he received either
an e-mail or text message from Mr. Swakon asking if
he could meet. JX 13 is the e-mail setting up the con
ference call. Mr. Swakon indicated that he wanted to
talk to them around 6 or 7 p.m. about the schedule and
getting the Lewiston pilots on LFN’s certificate, which
it had recently acquired. Tr. at 557-63 and 570.
Complainant started his shift early, around 7 p.m.
JX 8 is the pilot duty log he completed for July 8, 2014
which shows him signing in at 7:00 p.m. local time. He
took a flight that night, a Part 135 flight transporting
a patient to Seattle. He returned to Lewiston around 3
a.m. Upon arrival there is a post-flight routine they go
through that takes about 30 minutes. After doing that
he took a nap. Towards the end of his shift, Complain
ant talked to Mr. Pike, inquiring if there was relief or
they needed him to stay on. Mr. Pike wanted him to
stay to debrief the oncoming pilot, although Mr. Pike
did not know who the pilot was going to be. By 9 p.m.
he had not heard or seen anybody so he asked Mr. Pike
for an update. Mr. Pike asked him to stay the full 14
hours. Tr. at 563-69.
JX 14 is an e-mail from Mr. Bower that Complain
ant awoke to the morning of July 9,2014. Complainant
had never received an assignment via e-mail from Re
spondent before, much less going to another base and
covering that base shift without any information. It
was a nonfunctional assignment, which meant that re
positioning to The Dalles and then coming back to
Lewiston at 7:30 p.m. was going to put him really close
App. 19
to his 14-hour limitation, even if everything went per
fectly. It was an hour or more on block time from The
Dalles to Lewiston, then there are post-flight activities
so it was going to be very close to 9 p.m. which was his
limitation of 14 hours. Further, the pilot that he was
picking up was commuting from Portland or Hillsboro
to The Dalles, which is several hours away depending
on the traffic. He had concerns about this pilot’s ability
to perform a 12-plus-hour duty day after this commute
and the pilot’s flight back to Lewiston with him.
Accordingly, Complainant wrote an e-mail (JX 15,
at 1) listing a number of factors as to why he thought
it was going to be a medium to high FRAT for him that
night. He wrote this to draw attention to his concerns.
The assignment into The Dalles had no detail or infor
mation for him about what accommodations or services
he would receive there. From what he learned about
the shift conflicts the previous night, he was concerned
that it was going to be a couple of days of long nights
and he wanted to ensure that The Dalles had adequate
resting facilities in the event that he had an oppor
tunity to rest between flights.
Complainant had never flown into the Gorge21 be
fore, although he had driven through the Gorge many
21 a/k/a The Dalles. This airport is called by several different
names during this hearing. It is also referred to as “the Gorge”,
“Dallesport” or “The Columbia Gorge Regional” airport. What the
parties are referring is the Columbia Gorge Regional/The Dalles
Municipal Airport with airport identifier KDLS. The Tribunal
took official notice of the FAA’s Airport Facility Directory infor
mation for this airport located at http://aeronay.faa.gov/
App. 20
times. He was also familiar with accidents that had oc
curred there because of the windy situation; the air
port has multiple runways because of the constantly
shifting winds. The area also has a dam with a very
large hydraulic plant with a lot of towers in a very
steep gorge. Though the airport’s elevation is 300 feet,
the airport has mountains around it, so the minimum
en route altitude in that area was 8,000 to 13,000 feet.
During nighttime operations you cannot see the moun
tain and the towers; you have got to be on your A-game.
On that night he was assigned a different aircraft he
had previously flown. His former aircraft (N660LF)
had synthetic vision and avionics which mapped the
terrain details in a day-time light display which aided
in avoiding obstacles. The aircraft he was assigned to
fly on July 9, 2014 (N890WA) did not have this equip
ment. He referenced synthetic vision in JX 15. Tr. at
572-80.
The Tribunal asked Complainant, if he was so con
cerned about terrain and obstacles and, given that the
METAR reflects visibility plus 6 miles and skies clear,
why he did not just shoot an instrument approach
which factors those matters. Complainant indicated
that is why he referenced instrument approach plates
and it was his plan to shoot an 1FR approach if he
could not see the terrain or obstacles. Tr. at 580-81.
He noted there is a “phenomenal history” of EMS
Part 91 flights being the most hazardous maneuver for
afd/29mar2018/nw 163 29MAR2018.pdf Tr. at 285. See also
www.aimay.com/airport/kdls.
App. 21
EMS. “And VFR conditions is [sic] the worst because
you rely on visual cues as opposed to 1FR.” His inten
tion was to follow 1FR publications, but the lack of syn
thetic vision together with his lack of familiarization
and training at the base was his concern. It was the
policy of LFN and Respondent to give that familiariza
tion training. This lack of training was another factor
he considered. His reference in the e-mail to “heavy en
croachment of rest periods yesterday” and “book end
ing a long duty period last night due to scheduling mix
ups” was in reference to scheduling issues and his con
cern was he would be stuck in Dallesport without a
backup plan, and he would run out of time and the air
craft would be out of position. He had concerns that
there was a likelihood that his duty limits would be
exceeded. It was his hope, without specifically saying
it, that his e-mail would cause a discussion to ensue.
He had concerns that he could not accomplish all the
things the company wanted him to do within the 14
hour duty limitation. Tr. at 581-85.
In JX 14 Complainant proposed a mitigation sug
gestion - Tiffany, another pilot, would stay in Lewiston
while he went to Dallesport because she had not
started her duty day. Tiffany was living in Portland
and he believed that Aurora was her base. This would
give her plenty of time to do a repositioning flight, save
him for full duty, and let another pilot do some sort of
repositioning. It was one of three or four options he pro
posed. When making these suggestions he was aware
of other pilots in Respondent’s employ who had ex
ceeded duty time or pushed the limits in the preceding
App. 22
weeks. For example, he had been stuck in Montana
during a conference in Billings where there was no ho
tel room available for him. And he was aware of other
pilots running out of duty time. Tr. at 586-89.
So Complainant sent out an e-mail (JX 15, at 1) to
Mr. Bower and courtesy copied Mr. Graham, the pilot
he was bring back from The Dalles. He was hoping to
engage the team to talk about options. Complainant
believed that he replied to everybody Mr. Bower had
originally included in his e-mail. Complainant received
no response to his e-mail so he had no idea what the
plan was. He did have a conversation with Mr. Pike
shortly after he checked in with the COM Center at 7
p.m. Therefore, Complainant told Mr. Pike that he was
going to go ahead and do the flight, although he con
tinued to have some concerns about the flight. His ex
pectation was that Tiffany would be on the ground any
moment so he could have a chance to get to The Dalles
before sunset. But the plane did not arrive until 10:20
p.m. Tiffany did her post-flight while Complainant did
his preflight, and he started scoring his flight; waiting
for Tiffany to finish up closing her flight in the aircraft
he was about to use. It was also during this time that
discussion of a reposition flight to Aurora arose be
tween LFN maintenance and dispatch. The flight to
Aurora required additional flight planning, especially
since there are mountains and restricted military air
space between The Dalles and Aurora airports. Some
time between 10 p.m. and 11 p.m. he called the LFN
COM Center verifying that he was still on to fly to
App. 23
Aurora and then potentially Lewiston and Dallesport.
Tr. at 591-604.
CX 70 is a transcript of a telephone call between
Complainant and the COM Center that occurred
around 10:15 p.m. where he says “this schedule has
been discombobulated” and that he was at a medium
to high risk now just from potential fatigue from inter
ruptions and disruptions due to the rest period and he
asked to have a conversation with the manager on
duty. Dominic Pomponio was the manager on duty at
that time. Complainant was contacting the COM Cen
ter because he was not getting any feedback from Re
spondent’s personnel; he had already tried to reach Mr.
Pike and Mr. Bower. He had communicated with Mr.
Pike before the Aurora flight change and prior to that,
the plan was to do the flight. Since that conversation,
the plane had arrived significantly late and the addi
tional Aurora leg was being proposed; so the flight was
significantly different than the one previously as
signed by Mr. Bower. Tr. at 605-08.
CX 71 is an audio recording between Complainant,
Mr. Pomponio and Stacey for LFN COM Center. Com
plainant again said that it would be a medium to high
risk flight because he was not familiar with the base
and it encroached on a lot of mountains in a dark area.
He was involving LFN because it did not appear that
they had been involved thus far in the changes and
Complainant had lost confidence in Respondent’s man
agement after the prior scheduling conflicts, and after
being given a very troubling flight assignment without
sufficient detail or explanation. Complainant proposed
App. 24
alternatives to the proposed flight itinerary. Mr. Pomponio indicated that he wanted to make some tele
phone calls and then get back with Complainant. Mr.
Pomponio called Complainant back and told him not to
do anything unsafe and this made Complainant feel as
though someone had his back. So Complainant felt
that he needed to make a “game-time decision” and he
had LFN’s permission to do so. Tr. at 609-11.
Complainant filled out the FRAT after visiting
with Tiffany and verifying there were no issues; about
10:30 p.m. or 10:45 p.m. JX12 is the e-mail that he sent
to Mr. Bower, Mr. Graham, Mr. Pike, and Mr. Swakon
that contained the FRAT.22 It was his last ditch effort
to engage someone at Respondent about all of the fac
tors that he was going to be facing that night. Tr. at
612-17.
As for the entries on the FRAT itself (JX 25), he
marked 5 for “Pilot has less than one year previous air
ambulance experience.” The pilots were instructed on
the FAR with the AMRM23 to consider LFN pilots as
“new employees” if they had worked less than one year
with the company. He also marked “8” on line 8 to
“medical crew member has less than one year air am
bulance experience.” The reason for this was he had
met the Dallesport medical crew the night before on
the Boeing Field (Seattle) flight and they had a new
nurse. And it was his expectation that he would be fly
ing one of those new crews. It was his belief that he
22 See also JX 25, which is an enlarged copy of the FRAT.
23 This acronym was not explained to the Tribunal.
App. 25
would be flying the Dallesport crew that had just
started their week the previous night; that he would
be flying both a new paramedic and nurse in training.
Complainant checked item 9 as well because it
dovetails with item 8. Item 9 indicated that there was
a new medical crew/pilot mix. He also checked “Pilot
has no assistance from line service at Conyan.” He does
not exactly understand this line as Conyan is in Boise,
not Dallesport or Lewiston. However, he regularly
marked this item because it indicated that it reduced
the risk when you had a ground crew to receive you.
Under aircraft he marked “4” to the question “New, un
familiar nav/radio equipment install in the past three
months.” He felt that not having the assistance of syn
thetic vision that was on the NG Pilatuses, while not a
deal breaker, it was an additional hazard to consider.
Complainant marked “3” to the query “Aircraft within
500 pounds of max takeoff weight”. His expectation
was he was going to Aurora where there was a selfserve and there was an on-call pilot at the FBO there.
He thought that they would want him to tanker fuel to
do all of the flights and be in a mission ready status so
he would not have to wait on fuel in the middle of the
night, and that would have brought the aircraft’s fuel
up to within 500 pounds of max takeoff weight. He also
marked “Aircraft within 250 pounds of max landing
weight”. The aircrafts max takeoff weight is 10,500
pounds and max landing weight is 9,900 pounds and
the aircraft only burns 500 pounds per hour. So if you
fly for just over an hour, you are going to land at or
within 250 pounds of your max landing weight. And
App. 26
the flight between Lewiston and Dallesport was just an
hour total block time. The flight time between Lewis
ton and Aurora is about one hour and ten to one hour
and fifteen minutes. Complainant gave a “2” to the
questions “Backup aircraft PS-12 [sic] being utilized”.
The Lewiston pilots did not have a backup aircraft,
they were the backup, and no one had ever been criti
cized for using that value. Tr. at 617-25.
Complainant completed the right hand side of the
FRAT (IX 25) following his internal assessment and
based on Mr. Pomponio’s relief and indication that
LFN would not look adversely upon him if the reposi
tion in the morning from The Dalles did not occur. He
did not want to leave anything out because Mr. Miles
admonished the pilots during their training that Mr.
Miles felt that people were not considering all of the
risks. If anything, he thought that he might get in trou
ble for leaving a risk factor off the form. The FRAT was
an evaluation of not just one flight, but the cumulative
effect of the whole shift, with the expectation of return
ing the next morning. Tr. at 625-27.
He entered a value for “Turned down by other op
erators for weather reasons”. At the time he filed out
the form, he did not have any reason to believe there
had been a turn down for weather reasons, but that the
weather could change. There was partial 1FR in the
weather forecast and in the summer time the night
gets cold and you will have 1FR conditions at night af
ter the sun sets in the Pacific Northwest. It can create
wind in the Gorge or fog in Troutdale. They could fly as
far east as Montana or Salt Lake City and there was
App. 27
lots of 1FR throughout the area. For item 7 he marked
“5” to the query “Pilot has been on duty four hours or
more”. He marked that because if he went to Aurora,
by the time he departed it was going to be four hours
after he had shown up for shift. To the question “Wind
greater than 30 at TO landing airport or gust factor 15
knots or more” he marked “5”. At the time he sent the
e-mail to Mr. Bower the winds were gusting at 35 knots
and the winds do not always temper down at night. In
fact, they had been blowing consistently 20 to 30 knots
the prior 30 plus hours. The forecast for the winds was
10 to 20 knot but they were still blowing in excess of
20 knots at 10:00 p.m. He looked at the airport METAR
report for this, but not the TAF. Tr. at 627-33.
CX 90 contains the weather history for Dallesport.
It was 0300 Zulu time, July 10,2014 when he was look
ing at the weather for flying that night. Tr. at 633.
The Tribunal took official notice of the METAR of
The Dalles airport on July 10,2014,0253 Zulu. The au
tomated weather was winds from 310 degrees, 15 knots
gusting to 25 knots, 10 statute miles clear, altimeter
29.75.” Tr. at 636.
On JX 25, Complainant had also marked a “4” for
Moderate turbulence in forecast”. In the summertime
there is always turbulence over the mountains because
of the wind changes between night and day. He be
lieved that he saw in a report that the area had fore
cast for mountain wave turbulence. He marked a “4”
for “Night flight commencing between 0100 hours to
0500”. He did this because he was leaving at 11:00 p.m.
App. 28
with an hour or more flight to Aurora and then he was
either going to The Dalles or back to Lewiston and then
another subsequent flight to The Dalles, so he would
be flying within those hours. The last value he anno
tated was “21 wind shear plus/minus 10 or greater
forecasted or reported.” Whenever wind stops blowing,
it is considered a shear. Plus, in his experience, you al
ways encounter shear as you approach the Columbia
Gorge. Tr. at 639-41.
Complainant completed his FRAT and submitted
it to LFN at their designated e-mail, waited about 10
minutes, and was ready to depart. He then called Mr.
Pike to verify that he received the actual FRAT. He told
Mr. Pike that it was a 60, indicating a medium risk
level, so it was up to them to mitigate. But he was more
concerned about running out of flight time and being
forced to reposition the aircraft at the end of the day
anyway. Mr. Pike relayed that, if Complainant ran out
of time or he could not finish his duty day back in
Lewiston, to stop wherever he was located and they
would get him a hotel. Mr. Pike also said that he could
not see the FRAT Complainant had sent as he did not
have access to his e-mail. Once Mr. Pike empowered
him to go get a hotel or quit when he got too tired, he
felt everyone was in accord so he was relieved and
ready to go. Therefore, Complainant gathered the hel
icopter pilot that was going with him and they went to
the airport. As they were walking to the plane, the hel
icopter pilot got a call from dispatch and they told him
to stand down. Complainant was then confused as to
whether he still was supposed to go to Lewiston so he
App. 29
called LFN dispatch, who told him that they were can
celling the flight. CX 73 is a transcript of that call. CX
74 is a transcript of a call where he verified that he was
available in Lewiston for flights on the night of July 9,
morning of July 10. Nothing else happened the rest of
the night. Tr. at 641-55.
Around 7:00 a.m. on July 10, 2014, Complainant
received an e-mail (JX 19) from Mr. Bower. JX 20 was
his response clarifying what had happened the evening
of July 9,2014, as it was clear that there was some sig
nificant miscommunication between LFN and Re
spondent personnel. Complainant responded because
the e-mail inferred that he had cancelled the trip. He
was insulted and dismayed by the message he received
because he was facing questions about his Flight Risk
Assessment when Respondent’s policy was to not ques
tion or antagonize a pilot’s no-go decision. At the end
of the e-mail, Complainant offered some solutions. He
wrote his email around 8:20 a.m. and he wanted to
make sure that he was available to help remedy mat
ters that had arisen prior to his assignment that week.
Tr. at 655-57.
Prior to receiving the call terminating his employ
ment, Complainant did not talk to Mr. Bower or Mr.
Pike about the values he had assigned the flight on the
FRAT. He received a call from Mr. Pike around 1:00
p.m. who told him that, as a result of his shift last
night, they got together and talked about his Flight
Risk Assessment. They did not agree with it and effec
tive immediately, his services were no longer neces
sary. Mr. Pike said that LFN was part of their
App. 30
discussion. At that time, Mr. Pike made no mention of
Complainant’s e-mail about wages or the issue with
Complainant’s driver’s license, nor did he say anything
about falsifying company documents. Tr. at 657-60.
Following this call, Complainant drove back to the
San Juan Islands. He felt flabbergasted. When talking
to Mr. Pike, he expressed concern for the precedence of
terminating somebody over a disputed Flight Risk As
sessment. Complainant spent a week or two mourning
and then started applying for jobs, principally with
EMS and operations in the Pacific Northwest. LFN has
a network of vendors between Seattle and Portland so
the chance of flying EMS was pretty low. He was will
ing to fly freight, but a lot of those jobs would restart
his career and the pay was low. Tr. at 660-63.
One of the jobs for which Complainant applied was
a Corporate Air Center position, which had a regular
route between Bellingham24 and Seattle, four to five
days per week piloting a jet. Their Chief Pilot (Roger
Coon) was interested in someone with his skills who
could pilot weekend trips in the jet as needed. Some
time in March 2015 he conducted a flight for Corporate
Air with passengers aboard. He was supposed to just
go along and sit in the right seat, but after doing two
flights in the morning, the Chief Pilot let Complainant
fly to demonstrate that he could take over these flights
for the Chief Pilot. Once they landed at Boeing Field,
Complainant and the Chief Pilot got some coffee.
24 Bellingham is South of the San Juan Islands but north of
Seattle.
App. 31
Apparently one of the passengers, who was supposed
to “qualify” Complainant, gave the thumbs up.
After getting their coffee, Complainant and the
Chief Pilot went back to the FBO, went in to a confer
ence room and opened up all of the books that the Chief
Pilot had brought with him and started some indoctri
nation training. The company flew Part 91 so the Chief
Pilot wanted to get him qualified as a Part 91 pilot un
der the company’s GOM. They spent three or four
hours doing this.
After lunch, they came back to the FBO and re
ceived a call that the passengers wanted to leave early;
so they began making preparations. Complainant was
in the aircraft preparing it for the upcoming flight
when he saw somebody walk by the plane and look in
at him kind of real hard. Complainant did not recog
nize him, but he waved at him anyway. This person
walked around the plane, found the Chief Pilot and
started talking with him. Complainant later learned
that this person was Mr. Werner, and a friend of Mr.
Werner was flying a plane parked next to the one Com
plainant was in. After Complainant was doing the pre
flight planning and loading the flight plan in the GPS,
he noticed this individual, Mr. Werner, was animated
while talking with the Chief Pilot; it just looked abnor
mal. It was clear that the Chief Pilot knew Mr. Werner.
During this conversation, Mr. Werner pointed directly
at Complainant. About that time one of the passengers
started coming up so the Chief Pilot patted Mr. Werner
on the shoulder and then started to approach the
plane. After the Chief Pilot got into the plane, he
App. 32
identified the person he was talking to as Mr. Werner,
and according to the Chief Pilot, Mr. Werner is a fixture
at Clay Lacy Aviation, which is where Corporate Air
Center has made a home for its jets for a number of
years. Tr. at 663-70, 672-73.
When they returned back to Corporate Air Center,
after dropping off the passengers in Bellingham, they
looked at the schedule over the next couple of weeks
and he wanted to get some feedback to confirm that he
wanted to put him on the schedule. He put Complain
ant on a couple of flights with a customer of theirs in a
Cessna 340 they managed, if that trip conflicted with
another scheduled flight. The Chief Pilot told Com
plainant that he would get back with him after confer
ring with the customer. A few weeks later he received
a voice mail letting me know that Corporate Air Center
was going to go in another direction. He was shocked
and, when he called the Chief Pilot back and spoke to
him, it was clear that the conversation that occurred
between the Chief Pilot and Mr. Werner had caused the
job to vaporize. Tr. at 670-73.
Complainant finally got an offer of employment
from Air Methods in April 2015 but he did not start
working for them until June 2015. The job was flying a
Pilatus out of Farmington, New Mexico. The base pay
for that job was $58,000 and $62,000 with overtime po
tential and benefits. He is currently the Director of
Safety for an ambulance jet company in Albuquerque,
New Mexico, and his salary is $75,000. He did move his
family down to New Mexico, but his extended family
remains in Washington State. This incident impacted
App. 33
his view about aviation, an industry he loves. It has
impacted his family and their finances, such that they
have had to max out a couple of credit cards and pay a
lot of interest. Tr. at 673-77.
On cross-examination, Complainant agreed that
he understood that he was an employee of Respondent.
RX 7, at 1 is an e-mail from Mr. Werner to Complainant
that Complainant thought was threatening. When
asked if he had any written evidence of Respondent
promising him any benefits that LFN did not, he refer
enced an e-mail following a phone conversation with
Mr. Bower on or about December 13. He agreed that
Mr. Pike and Mr. Bower were his supervisors at Re
spondent. The only flight assignment that he ever re
ceived from Respondent was the assignment of July 9,
2014; the rest came from LFN dispatch. On July 9,
2014, Respondent, in an e-mail from Mr. Bower, as
signed him to go to Dallesport, serve a shift, and then
return to Lewiston the following morning at the end of
that shift. Tr. at 769-774.
Complainant signed for Respondent’s Employee
Handbook (IX 1). There is a list of company behavior
standards and number 13 is “No falsification of com
pany records and/or documents.” Tr. at 775-77.
Complainant received an e-mail (JX 9) from Mr.
Pike on March 6, 2014 on how to use the FRAT form.
Complainant understood that the items on left side of
the form were to be completed when he started his
shift, but the items on the right side of the form “must
be filled out only after you’ve been assigned a flight.”
App. 34
For his flight prior to July 9, 2014, it was his practice
to fill out the right-side of the FRAT form only when
he had a request. Respondent’s flight logs reflect that
Complainant did not fly in February 2014; the first
time he flew was March 2, 2014. And whenever Com
plainant flew he would enter it in the company logs
(RX 6). For each flight actually taken, he was required
to fill out an individual FRAT. All of Complainant’s
FRATs for March and April 2014 are contained in the
Respondent’s Exhibits. The FRATs that are missing
are for the dates May 12, June 3, 4, 6, 27, and 29,
2014.25 The FRATs show that Complainant flew
N890WA in June and early July 2014, including on
July 8,2014. On his FRAT for July 8, 2014, on the lefthand side, item 4 (“New/unfamiliar nav; radio equip
ment installed within the last three months) is not
checked. For his FRATs from March through July 2014
he would only fill out the right-hand side of the FRAT
form when he had a flight request. Further, Complain
ant would fill out a FRAT for each individual flight as
signment. Tr. at 778-815.
Complainant maintained that his initial assign
ment was to fly to Dallesport that night and return in
the morning. However, he received an amendment to
fly the aircraft to Aurora with potential flights after
the Aurora flight before he went to Dallesport. He was
to remain in Aurora while a helicopter pilot conducted
25 The parties stipulated that the Respondent produced to
Complainant all of his FRATs from April and May 2014, except
for the one of May 12. However, the record also showed that Com
plainant did not have a flight request for May 12. Tr. at 802-04.
App. 35
his preflight activities to either reposition the helicop
ter back to Lewiston or he was going to return to
Lewiston with the helicopter pilot if that pilot did not
have sufficient duty time remaining. And this was
prior to Mr. Bower giving him an assignment to put the
aircraft at Dallesport for a portion of his shift and then
take a different pilot, Mr. Graham, back with him to
Lewiston. The FRAT he filled out on July 9, 2014 rep
resented the flight assignment by Mr. Bower to return
to Lewiston the next morning and included the Aurora
internal trips. Complainant acknowledged that he had
no medical crews for those assignments. When asked
why he put a score for medical crew on his FRAT, Com
plainant said he considered the helicopter pilot not be
ing familiar with the airplane being a potential co-pilot
so he considered him a flight crew member/medical
crew member as he thought the helicopter pilot might
be a little bit of a distraction. Complainant contended
that his FRAT on July 9, 2014 did not include what he
might receive in terms of flight assignments from The
Dalles. When asked if he misrepresented to Mr. Bower
that night that it was going to be a medium to high
FRAT that night, he denied this assertion, stating he
did not need to complete a FRAT to give that assess
ment. However, he acknowledged that at the time of
that conversation, he did not know about the proposed
change of flight assignment to include Aurora; it was
just to reposition the aircraft to Dallesport empty and
return the next morning. Tr. at 816-43.
Complainant agreed that his shift on July 8, 2014
started at 1900 and he recorded his off-duty time at
App. 36
0900. And he acknowledged that, prior to his July 9,
2014 shift, he had had 10 hours of rest. On July 9,2014,
he actually was ready and available for an assignment
at 1900 hours per Mr. Pike’s instruction. When looking
at his July 8, 2014 FRAT (JX 24), even though he had
been working more than 4 hours, Complainant did not
feel it was a risk element and did not check that box on
that trip’s FRAT. Tr. at 844-47.
Complainant acknowledged that he was unfamil
iar with the Dallesport airport, but that he had “prob
ably not” flown into each and every airport prior to a
flight request. He agreed that part of the job of a fixed
wing ambulance pilot was to fly into unfamiliar air
ports. He also acknowledged that, despite annotating
item #4 on the FRAT (“New unfamiliar nav/radio
equipment installed with the past three months”), the
equipment in the aircraft was the same as existed on
July 8, when he did not take credit for the same risk.
On the morning of July 10,2014, when it was apparent
that Complainant was the subject of concern due to Re
spondent’s and LFN’s miscommunication, Complain
ant wanted to ensure that people knew that he was
available to conduct a repositioning flight. That oc
curred towards the end of his shift, about an hour prior
to his shift ending. Tr. at 848-58.
Concerning the conversation he observed on the
Boeing Field tarmac between Mr. Coon and Mr. Werner
on March 12, 2015, Complainant agreed that he could
not hear the substance of their discussion, but ob
served their interaction through the aircraft’s cockpit
window, including “very animated body language.” He
App. 37
agreed that Mr. Werner uses his hands when talking;
“[Me talks with everything.” Mr. Coon never told Com
plainant what he and Mr. Werner talked about that
day. Tr. at 859-61.
Complainant has not seen any doctors for the emo
tional distress he claims as a result of his termination
of employment by Respondent. He has not been pre
scribed any medications for emotional issues, and he
holds a first-class medical certificate with no limita
tions. Tr. at 869-70.
On redirect, Complainant thought the circum
stances of the night of July 9, 2014 required him to re
port the factors as he did in his FRAT (JX 25). He
selected “New medical crew/Pilot mix” because there
were going to be people on his plane that he was not
familiar with and they were not familiar with him. It
was his belief that the expectations set by Mr. Pike
when he left his assignment on July 8thto show up at
7 p.m., be available for an undefined assignment to fly
the plane from Tiffany’s return, and fly the subsequent
flights - would far exceed the 13 hours set by JJC as
an internal duty limitation and would definitely ap
proach, if not exceed, the 14-hour FAA mandated limi
tation before he would be able to complete the mission.
Tr. at 871-76
Steven Bower (pp. 207-232 and 313-449)
Mr. Bower has been flying since 1976. His first pro
fessional job as a pilot was as a flight instructor. He
earned his CFI in about December 1987. In
App. 38
approximately 2005, he earned his multi-engine rating
and airline transport pilot certificate. From 1987 for
about 15 years he flew just part-time instructing dur
ing the evenings and weekends. In 2004 he was laid off
from his job so he began to try to fly full-time. In 2005
he started working for Conyan Aviation as a part-time
contract charter pilot. Back then Conyan was doing
fixed-wing flights for LFN. In June 2006 he was hired
full-time by Western Aircraft to be a full-time charter
pilot and he could no longer work for Conyan because
they were competitors. He worked there until around
2010. After that he flew for Western Aircraft part-time
but this then allowed him to work other employers, in
cluding Conyan. In late June 2013 Respondent bought
Conyan. Respondent thereafter was doing business as
Conyan Aviation, but they also had its own entity. Mr.
Werner asked if he would be interested in the Director
of Operations (DOO) position.26 He has known Mr. Wer
ner for over 20 years and he considers him a close
friend. In that position, he manages the pilots and re
ports to Respondent’s management: Jeff Jackson and
Wayne Werner. As the DOO, he had almost daily con
tact with Mr. Jackson because he was on-site in Boise.
Mr. Bower’s normal work day was 8:30 — 9:00 a.m. to
5:30 - 6:00 p.m., Monday thru Friday. However, both
he and Mr. Pike served on call at times and both would
occasionally provide pilot services. This included con
ducting LFN flights. Tr. at 207-21.
26 For a regulatory description of the qualifications necessary
to become a DOO, see 14 C.F.R. § 119.71.
App. 39
It was up to the pilots to make the go/no-go deci
sion. They had the option to mitigate as an alternative
strategy. Tr. at 226
CX 5 is LFN’s Policies and Procedures dated June
2016. Tr. at 229-230. CX 6 contains LFN’s Just Culture
policies, which encourages individuals to report mis
takes in order to fix system issues. That was consistent
with Respondent’s aims. Although he had not seen
LFN’s General Operating Manual (“GOM”), it was Re
spondent’s policy for pilots-in-command to report to
base with enough time to sign in andperform required
pre-flight duties. Further, a pilot was to notify the LFN
Communications Center27 whenever the pilot might vi
olate any rule due to being dispatched on a flight. Ul
timately, it is the pilot that is responsible for the safety
of those in his airplane and the flight itself. Pilots were
required to perform a 360 degree pre-flight walk
around prior to entering the cockpit and the pilots
were responsible for notifying LFN’s Communications
Center if there were any issues that would take an air
craft out of service. Tr. at 315-31.
CX 9 shows that Complainant was expected to fol
low not only Conyan28 policies and procedures when
flying LFN flights, but he was to follow LFN’s policies
and procedures provided they did not contradict Conyan’s. Pilots were expected to become familiar with
27 Mr. Bower initially referenced reporting this to Respond
ent’s Chief Pilot, but later clarified his answer.
28 As Respondent acquired Conyan, the Tribunal infers that
these policies continued with Respondent.
App. 40
LFN’s policies and procedures. The terms of the con
tract between Conyan and LFN extended to Respond
ent’s base in Lewiston. Tr. at 333-40; see RX 4.
Mr. Bowers recalls being one of the individuals
that interviewed Complainant for the Lewiston pilot
position. The Lewiston base was designed to have four
pilots, but it never did. When he interviewed Com
plainant, he formed a favorable impression of Com
plainant and his experience. After Respondent hired
Complainant, the human resource department needed
to have his driver’s license number. At that time, they
learned there was an issue with Complainant’s driver’s
license, which was a deal buster because they could not
have a pilot that could not get to the airport quickly.
However, with some difficulty, Complainant was able
to get a driver’s license before he showed up for work.
The driver’s license issue did not delay his ability to
take flights. Tr. at 342-45.
Prior to Complainant’s firing, Mr. Bowers had seen
Complainant less than ten times in person. Up to that
point, he had no concerns about Complainant as a pi
lot. And he had almost no concerns about Complain
ant’s honesty prior to the July 9, 2014 flight. However,
Mr. Bower’s stated that Complainant had tested him
quite often. Complainant e-mailed him often with is
sues and complaints about conditions or promises
made and not kept for the pilots based at Lewiston. Mr.
Bowers recalls Complainant complaining a lot about
pay and insurance issues. Other than the incident with
Mr. Young on the tarmac, he did not give Complainant
App. 41
feedback about getting along with others or sending emails. Tr. at 345-50.
EMS29 pilots had specific duties. For example, they
filled oxygen tanks. Mr. Bower did not know what fa
cilities The Dalles airport had to refill oxygen, access
rest areas, get a drink of water, go to the bathroom, or
even how to re-fuel the aircraft. Mr. Bower had only
landed at The Dalles on one occasion and had only vis
ited the Lewiston Base twice. He agreed that a pilot
being familiar with that base increases safety margins.
Tr. at 365-71.
LFN had helicopter operations and was pursuing
a Part 135 certificate, but he did not know if that in
cluded both fixed and rotary wing aircraft. The word
on the street was they were going to get a certificate
and place all of their subcontracting entities under
that certificate, including the bases at Lewiston and
The Dalles. Tr. at 377-80.
JX 9 reflects the only written training Complain
ant received on use of the Flight Risk Assessment. Mr.
Bower did not recall personally training Complainant
on it, nor did he know of anyone else who personally
trained Complainant or the Lewiston pilots on how to
complete the Flight Risk Assessment. The FRATs were
decision making tools for the pilots, not management.
For Respondent the question was: is the pilot going on
the flight or not. The pilot has the discretion to make
the go/no-go decision. Tr. at 382-84.
29
Emergency Medevac Services.
App. 42
On July 9, 2014, he sent Complainant an assign
ment to reposition a flight to The Dalles. Complainant
was to wait for Mr. Royce Graham to arrive, and then
take Mr. Graham back to Lewiston. The copy of the email making this assignment to Complainant is at JX
14. Mr. Bowers did not know why LFN wanted the air
craft at The Dalles instead of Lewiston. LFN wanted
the plane back in Lewiston on July 10, 2014 to keep
the Lewiston base in service. Mr. Bower’s sending the
assignment via e-mail was not common for flight as
signments as they usually came from the COMS Cen
ter. Mr. Bower e-mailed JX 14 around 5:00 p.m. just
before Mr. Bower left work for the day. Mr. Bower did
not check his e-mail that night because he did not have
access to it. Consequently, he did not get Complain
ant’s response to the e-mail until the next day. JX 15 is
Complainant’s response to JX 14. He also did not look
at JX 16 until the morning of July 10, 2014.
At around 8:00 a.m., July 10, 2014, Mr. Bower had
the impression that Complainant had made a no-go de
cision. JX 19 is an e-mail Mr. Bower’s wrote Complain
ant at 8:30 a.m. on July 10, 2014, where he states that
he disagreed with some of risk factors Complainant en
tered on the form. Tr. at 384-91.
Complainant’s incorrect FRAT entries were a
strong influence on the decision to terminate his em
ployment, but not the only reason. Mr. Werner had a
conversation with LFN and he was told that they
would not use Complainant anymore, which strongly
influenced the decision. Mr. Pike fired Complainant. In
making the decision to terminate Complainant’s
App. 43
employment, the e-mails at JX 15 and JX 16 were con
sidered. CX 84 includes the e-mail string between Mr.
Pike, Human Resources, and himself on how to word
the termination of employment action. They discussed
discipline versus termination, ultimately and unani
mously concluding on termination of employment. Tr.
at 392-98. The decision to terminate Complainant’s
employment was a team decision. Mr. Bower stated
that Complainant was not fired for raising safety is
sues. Tr. at 421.
Complainant was assigned to fly the Pilatus PC12 during his employment, which is a day or night,
1FR, VFR, and known icing conditions aircraft.30 Mr.
Bower supervised the pilots flying fixed-wing LFN mis
sions from Boise and Lewiston, and briefly Aurora and
The Dalles. Mr. Bower considers The Dalles a fairly
normal airport. A reposition flight is a routine flight.
His last day of work for Respondent was in October
2014. Tr. at 398-405.
Mr. Bower is familiar with the FRAT form Com
plainant used on the evening of July 9, 2014. IX 9 is a
copy of that form. JX 16 is the FRAT form completed
by Complainant for the July 9, 2014 flight. The first
30 IFR means instrument flight rules while VFR means vis
ual flight rules. In general, when flying VFR one cannot fly
through clouds and the pilot is responsible for keeping a safe dis
tance from the clouds (visual meteorological conditions) and the
pilot is responsible for seeing and avoiding other aircraft. See gen
erally, 14 C.F.R. § 91.155. [FR refers to rules for conducting flight
below VFR weather minimums. See 14 C.F.R. § 91.167 - 91.193.
See generally, AIRPLANE FLYING HANDBOOK (2016) and INSTRU
MENT Flying Handbook (2017).
App. 44
time he saw Complainant’s FRAT form for the July 9,
2014 flight was in that email on the morning of July
10,2014. At the time he sent his response to Complain
ant’s email (JX 16), Mr. Bower had no idea that LFN
was upset. The first time that he had seen the TAF31
report (JX 20-3) was in conjunction with JX 20 on July
10, 2014. Mr. Bower received the email at JX 20 after
he had sent the JX 19 email. Tr. at 405-12.
After reviewing Complainant’s FRAT (JX 25) on
the morning of July 10, 2014, Mr. Bower had issues
with lines 7 and 8, which referred to the aircraft as
quite heavy. He did not believe the aircraft was as
heavy as Complainant represented because it was only
a repositioning flight. Complainant did not have a pa
tient on board and only needed enough fuel to get to
The Dalles and back to Lewiston.32 However, he
acknowledged that he had no evidence that the aircraft
was not as heavy as Complainant represented on the
form. On the right-hand side of the form, Mr. Bower
also took issue with line 6, because it is not true that
the trip was turned down by another operator for
weather reasons; it was just a reposition flight. Line 8
on the right-hand side is also wrong because
31 Terminal Aerodrome Forecasts (“TAF”) are weather re
ports at an airport that are valid for 24 or 30 hours and amended
as required. They are generally issued every six hours. See AERO
NAUTICAL Information Manual: Official Guide to Basic
Flight Information and ATC Procedures (Oct. 12,2017), Chap
7, page 7-1-1 (hereafter referred to as the “AIM”).
32 Mr. Bowers later testified that, given the flight mission, the
aircraft would be about 700 pounds under its maximum gross
weight. Tr. at 418-19.
App. 45
Complainant had not flown two or more hours during
the shift; that was going to be his first flight. Mr. Bower
disagreed with Complainant’s representation on the
form that the winds were greater than 30 knots at the
takeoff or landing airport, or had a gust factor of 15
knots or more. The TAF showed milder wind conditions
at The Dalles during that period, the same document
Complainant would rely upon. Similarly, the form ref
erences moderate turbulence and wind shear but that
also is reflected on the TAF, or they would be in METARs33 or PIREPs.34 Tr. at 413-20.
Mr. Bower understood that the pilots employed to
fly for LFN at Lewiston would be terminated by Re
spondent once LFN obtained its Part 135 air carrier
certificate and would then be hired by LFN. However,
after LFN obtained its certificate, it did not retain any
of the Lewiston based pilots. There were two pilots
there at that time, other than Complainant. Respond
ent terminated those pilots’ employment on August 11,
33 A METAR is a Meteorological Aerodrome Report, also
called an aviation routine weather report. These are weather re
ports generated by weather equipment on the surface of an air
port that are updated at least hourly. See AIM, page 4-3-26 and 71-60
34 Pilot Report, or Pilot Weather Report. These are reports pi
lots make during a given flight and include such information as
visibility, turbulence, icing conditions, and tops of cloud layers. See
AIM, supra, at page 7-1-41.
When asked by the Tribunal, Mr. Bower said that he did not
investigate as to whether or not there were any PIREPs about
reported turbulence or wind shear. Tr. at 420. The only infor
mation that he relied upon was the TAF that the Complainant
provided to him as justification for his decision. Tr. at 445.
App. 46
2014 and closed the Lewiston base. Neither of those
two pilots were offered further employment with Re
spondent because it did not have any openings. Tr. at
421-23.
When he was Respondent’s DOO, Mr. Bower en
couraged teamwork and professionalism; he wanted
each pilot to succeed. When he had issues with pilots,
he would address those individually with the pilot. If a
pilot had a question about an assignment, they could
contact the COM center for clarification. Tr. at 425-27.
On redirect, Mr. Bower’s thought that LFN might
still have a helicopter in Lewiston but was not sure. He
was not aware whether LFN now had a hangar at
Lewiston, or whether they were actively seeking fixed
wing pilots. Tr. at 427-29.
CX 16 is a copy of an e-mail, dated July 9, 2014,
Mr. Bower sent to the Lewiston-based pilots. He tells a
Lewiston-based pilot that LFN would be providing pi
lots with their benefits and overtime compensation,
something the pilots (including Complainant) had
been complaining about for many months. The Lewis
ton pilots felt that, compared to the other LFN pilots,
it was not fair that they were not getting the same rate.
Tr. at 430-32.
Mr. Bower reiterated that Complainant was termi
nated for three reasons: he misrepresented the risk of
the night of July 9, 2014; LFN did not want him work
ing there anymore; and Respondent’s general feeling
that he was hard to manage. - Complainant whined
much more often than the other pilots - by e-mail or
App. 47
text, and about compensation, overtime, and benefits.
Tr. at 435-36.
JX 7 is the personnel action form that was drafted
in connection with Complainant’s termination of em
ployment, which sets forth the reasons why Complain
ant was terminated. Mr. Bower believed that Mr. Pike
articulated those reasons to Complainant as the basis
for his termination. Mr. Bower acknowledged that the
personnel action form did not say anything about LFN,
but noted that he did not write that document. IX 7
was prepared by Mr. Pike and a person from human
resources. Mr. Bowers agreed that CX 84, at 2 describes
the conversation Mr. Pike had with Complainant, and
does not make reference to LFN not wanting to work
with Complainant as a rationale provided to Com
plainant as a reason for his termination of employ
ment. Tr. at 437-40.
JX 21 contains an e-mail from Mr. Werner where
he strongly recommended terminating Complainant’s
employment. As part of that e-mail chain, a LFN per
son asked him and Mr. Werner to have a conference call
that morning. Tr. at 442-43.
Ryan Pike (pp. 241-314 and 679-743
(via video-teleconference from Tampa. FL)
Mr. Pike started flying in high school in 1999 in
Boise, became a flight instructor for a few years and
then obtained a position as a charter pilot with Conyan
Aviation which later became Respondent. He flew
there for a few years as a line pilot, check airman, and
App. 48
eventually became the Chief Pilot. He has about 4,800
hours total flight time and holds an Airline Transport
Pilot, Certified Flight Instructor, and Instrument and
Multi-engine Instructor certificates. He left Respond
ent in August 2014 for a Chief Pilot position in South
ern California. After that he moved to the Denver area
for a position and ultimately became that company’s
DOO. He left that position and currently holds a full
time flight position as a Captain for a company in Con
necticut. Tr. at 265-69.
Mr. Pike was Respondent’s Chief Pilot from Au
gust 2013 to August 2014. During that time he was
Complainant’s immediate boss. He was based in Boise
and Complainant was based in Lewiston, so he had
very limited personal contact with Complainant. Out
side of telephone calls and e-mails, he did not know
Complainant well. Tr. at 241-44.
On July 9, 2014, Complainant had been assigned
to reposition an aircraft for LFN from Lewiston to The
Dalles. Complainant was to pick up a pilot around 7:30
a.m. on July 10, 2014 and fly him back to Lewiston.
This was Complainant’s only assignment. Through no
fault of Complainant, the aircraft he was to use for that
flight arrived five hours late. Complainant contacted
Mr. Pike to review his FRAT, a typical course of action
because Mr. Pike was his boss. During this review,
Complainant raised the issue of pilot fatigue and sug
gested he could get a hotel; however, Mr. Pike never
looked into the availability of a hotel room. It is appro
priate for a pilot to go through the potential issues that
might affect the safety of the flight, including the
App. 49
weather. It was apparent to Mr. Pike during the tele
phone conversation that Complainant did not like the
circumstances of the flight; Complainant felt unsafe
doing so. Mr. Pike found out later that Complainant
communicated with LFN and told them he was willing
to do the flight, but they did not want him to do it any
more. Tr. at 244-51.
Mr. Pike acknowledged that he never looked at the
weather reports for The Dalles to confirm what the
weather was there on July 10, prior to firing the Com
plainant. Mr. Pike also agreed that one of the reasons
he fired Complainant was insubordination. After in
forming Mr. Pike that he was not going to fly that mis
sion, Complainant told LFN that he would. Mr. Pike
agreed that another reason for Complainant’s termi
nation was his falsification of his employment applica
tion. However, Mr. Pike conceded that he never
investigated or asked Complainant why he checked
the box “No” to the question “Has your driver’s license
ever been suspended or revoked or ever been convicted
of any felony?” Tr. at 247, 251-61.
On cross-examination, Mr. Pike acknowledged
that he was Complainant’s direct supervisor from the
date Complainant started until the date his employ
ment was terminated. The job of a fixed-wing air am
bulance pilot requires the pilot to have experience in
instrument conditions and a general ability to make
safe decisions quickly. They can be asked to fly in bad
weather and to unfamiliar areas or unfamiliar air
ports. He did not expect the pilot to make a decision
based on the patient’s condition because that is
App. 50
unknown; they simply need to make a quick go or nogo decision. He was not aware of any requirement in
Respondent’s manual or operations specifications for a
FRAT form to be completed for fixed-wing aircraft. Nor
were there any policies or procedures at Respondent
that required FRATs for fixed-wing aircraft to be kept
for any amount of time. The requirement to complete a
FRAT began in March 2014 because LFN required it
for their flights. The FRAT form was not used by Re
spondent in 2014 for its charter flights. JX 9, page 2 is
the blank template for a FRAT that Mr. Pike sent to
Respondent’s pilots who were performing flights for
LFN, and was to be completed by them for those flights.
JX 10 is an e-mail he sent to the pilots, including Com
plainant, asking that the pilots verify that they read,
understood, and would comply with the instructions on
completing a FRAT. The instructions provide that the
left of the form can be filled out when a pilot’s shift be
gins, but the right side must be filled out only when
they had been assigned a specific flight. Tr. at 267-78.
Mr. Pike did not review every FRAT filed by the
pilots. He would review them only when there was an
elevated score and the pilot wished to do the trip or the
pilot wanted to discuss how to mitigate the identified
risk factors. Receiving a call from a pilot to mitigate a
risk assessment was not uncommon. They would dis
cuss options to mitigate the risk such as using an al
ternate airport or alternative route to avoid weather.
As for the phone call with Complainant, Mr. Pike re
called that the conversation was more drawn out than
an average risk assessment. At the conclusion of that
App. 51
call, in Mr. Pike’s mind, he did not believe that Com
plainant would make that flight. Mr. Pike’s under
standing was that flight was a simple reposition flight
to The Dalles with the possibility of having trip assign
ments in and out of The Dalles, and to cover that base
for the night. Mr. Pike was not familiar with that air
port, other than in a general sense, and that was an
established base where some crew members had been
working for some time. Tr. at 27885.
While working for Respondent, Mr. Pike’s typically
worked 8 a.m. to 5 p.m., but fielded phone call and emails after hours as required. At some point he re
viewed the e-mails Complainant sent July 9 or July 10,
2014. It was Mr. Pike’s impression that Complainant
had made the decision not to accept a trip before the
aircraft had even arrived in Lewiston, Idaho. At the
time that he had the mitigation telephone call with
Complainant, Mr. Pike did not have the FRAT form. He
believed that the first time that he reviewed the July
9, 2014 FRAT form (JX 25) was the next morning. Mr.
Pike took issue with items on JX 25. When he reviewed
that form on July 10,2014, he noticed that certain line
items had been misconstrued. For example, on the lefthand side of the FRAT form, at item 8, there would
have been no medical crew members aboard the repo
sitioning flight. Mr. Pike also had concerns about Com
plainant marking item 4 — for new equipment installed
on the aircraft - when there had not been, and Com
plainant’s reference to the aircraft being within 250
pound of maximum landing weight. Tr. at 285-93.
App. 52
The right-hand side of the FRAT form (JX 25) was
only to be filled out upon a specific trip assignment.
Item 6 was incorrect because no other pilot had turned
down the assignment, nor was Mr. Pike aware of the
flight being turned down by any other operator. The
next line item Mr. Pike had issues with concerned
Complainant’s representation of how long he had been
on duty at the time of assignment. Although the form
is grammatically incorrect because it used the word
“for” rather than “four”, for all intents and purposes
Complainant had just begun his shift. Complainant in
dicates on JX 25 that he had flown two or more hours
during his current shift, when Complainant had not
flown yet that day. Even if he had flown, it is only a 45
to 50 minute flight from Lewiston to The Dalles. Com
plainant noted wind greater than 30 knots, yet the
weather that night was not forecasted to be in that
range nor was it in that range during the time period
of the proposed flight. One would determine this by re
ferring to the TAF, and Mr. Pike has seen the TAF re
port for the July 9, 2014 flight in question. JX 20, page
3 is the TAF report and Mr. Pike likely reviewed it the
morning of July 10, 2014. IX 20 indicates that the
winds were 17 knots gusting to 23 knots, with good vis
ibility. Mr. Pike opined that, in light of JX 20, Com
plainant’s entry for wind conditions on JX 25 was
false.35 On JX 25, Complainant represented a forecast
for wind shear, but to Mr. Pike’s knowledge there were
no reports of wind shear. Tr. at 293-301.
35 See also Tr. at 307-09.
App. 53
JX 15 is an e-mail that Mr. Pike saw the evening
of July 9, 2014, where Complainant expressed concern
about the logistics of the trip and the risk factors. He
found Complainant’s email to be presumptuous, be
cause it was not reasonable to assume that it was going
to be a busy night at The Dalles. There is no way to
predict what flight assignments may come out of a par
ticular base. Complainant described The Dalles as a
hostile nighttime operational environment, but no pi
lot would place The Dalles on a list of dangerous air
ports to operate into or out of. His comment about
heavy encroachment of rest periods is inaccurate be
cause if one looked at Complainant’s flight logs there
was nothing that pushed the 10-hour rest request. And
Complainant exaggerated the work load at The Dalles
in general; each base received its fair share of busy
times and quiet times. Mr. Pike felt it was obvious that
Complainant’s risk assessment was based on assump
tions about what may or may not occur that night
which were then translated over to the FRAT score. Tr.
at 303-06.
Mr. Pike first reviewed the e-mail at JX 20, page 3,
on the morning of July 10, 2014. Complainant’s repre
sentations about the wind conditions were not sup
ported by the weather forecast he provided to
Respondent. Mr. Pike opined that Complainant did not
adequately assign points for the line item; he should
not have taken any points for the line item related to
wind. It appeared that Complainant was covering his
bases, since Mr. Pike perceived the night prior that he
just did not want to do the flight. Tr. at 307-12.
App. 54
Mr. Pike provided Complainant with five days of
training at the very beginning of his employment,
which covered company-specific items, policies and
procedures, a basic review of Federal Aviation Regula
tions, and basic airmen knowledge. He could not recall
if he provided Complainant any documents like the Re
spondent’s GOM. He did recall that a portion of Re
spondent’s GOM covered the duties for a pilot in
command and chief pilot.36 Mr. Pike would have dis
cussed those duties with Complainant during his
training. Complainant was expected to abide by Re
spondent’s GOM policies and procedures. Tr. at 680-92.
Mr. Pike recalled the mitigation telephone call he
received from Complainant on July 9, 2014. He re
viewed Complainant’s FRAT with him and would have
gone through and mitigated with him, but he likely did
not have a copy of Complainant’s completed FRAT dur
ing the telephone call. He had no specific memory other
than Complainant’s general concern for logistics. Tr. at
692-93.
On July 10, 2014, he reviewed e-mails received
from Complainant. He recalls opening the e-mail from
Complainant, dated July 9, 2014 at 6:29 p.m. (JX 15)
sometime in the morning. After reviewing the e-mail,
he recalled discussing synthetic vision and a general
discussion about the Columbia Gorge airport itself. Tr.
at 693-95.
36 See KX 83, bates stamp BC 00363.
App. 55
JX 20 is an e-mail from Complainant sent July 10,
2014 at 9:19 a.m. Mr. Pike saw this email that morning
and believed that Complainant was trying to cover his
tracks a little bit because he knew Respondent was
probably discussing his actions. The e-mail struck Mr.
Pike as odd. Complainant suggested repositioning
N890WA to Dallesport, which was kind of useless be
cause his shift had ended by that point. Complainant
also attached a TAF to his e-mail. Mr. Pike disagreed
with Complainant’s interpretation of the TAF in the
context of Complainant’s entries on the FRAT. Tr. at
695-98.
Mr. Pike again asserted that Complainant’s em
ployment was terminated for multiple reasons. Com
plainant wrote long e-mails on weekly bases that were
not easy to read, expressing his opinions that someone
was not doing something. These e-mails became very
tiresome to deal with from a management perspective.
His altercation with another pilot on the Lewiston
ramp in April 2014 also had a bearing on the decision,
in addition to the falsification of his employment appli
cation, the altercation with Mr. Young, and the July 9
incident. Tr. at 698-99.
Respondent’s specific concern about the July 9,
2014 incident was about how much time it took for
Complainant to come to a conclusion as to whether or
not the trip would go. It was obvious that the factors
written on the FRAT (JX 20-2) were, to a certain ex
tent, falsified to inflate that score to make the trip look
riskier than it was. To Mr. Pike, it showed poor decision
making and he expects (and the regulations require)
App. 56
each captain to be the ultimate and final decision
maker. And if a pilot cannot demonstrate the appropri
ate skill level and ability to make smart decisions, they
cannot perform as a pilot in command. Mr. Pike as
serted that virtually everything on the right-hand side
of that form was an embellishment of the facts. Com
plainant had not flown at night yet. Complainant had
not been on duty a long time. The winds were not fore
casted to be excessive. And it would not be appropriate
to fill out a FRAT report based on anticipated assign
ments throughout his shift. Mr. Pike is not aware of
any pilots employed by Respondent who approach a
FRAT that way. Tr. at 699-703.
On July 10, 2014, Mr. Pike discussed the concerns
about Complainant’s actions the night prior with Mr.
Bower. Mr. Pike recalled that he may have had some
conversation with Mr. Werner, but the vast majority of
his discussions were with Mr. Bower. They discussed
Complainant’s difficulty in reaching a go/no-go deci
sion and the FRAT report. It was indicated to them by
Mr. Werner’s e-mail that LFN did not wish to use Com
plainant anymore as a pilot in command with their ser
vice. They discussed a reprimand, at which point they
brought in Respondent’s Human Resources to discuss
how to appropriately write up the issue, but ultimately
decided to terminate his employment. They elevated it
to termination because of a “three-strikes and you are
out” concept, and also because there was no position for
him at Respondent since LFN did not want to use him.
Mr. Pike did not recall if he made the decision to ter
minate Complainant’s employment, or Mr. Bower did,
App. 57
or whether it was a joint decision. However, he knew it
was Mr. Werner’s suggestion they terminate Complain
ant’s employment. Tr. at 703-06.
Mr. Pike made the actual call to Complainant,
which was a very unpleasant conversation. He believes
that the reasons he gave Complainant over the phone
for his termination were spelled out in the paperwork
they filled out at Respondent with HR (JX 7). Mr. Pike
agreed with everything in that letter except the issue
with the request from LFN to reposition the flight; he
is not sure if that was correct. Tr. at 707-10.
On re-direct, Mr. Pike acknowledged that the ter
mination letter does not mention Complainant’s abra
siveness as a basis for his termination. And he recalled
writing to LFN to confirm in writing that they had
nothing to do with Complainant’s termination of em
ployment. At that time, he did not know that Com
plainant had been assigned by LFN to go from Aurora
to The Dalles. He was not involved in the discussions
between Complainant and the COM center. It was Mr.
Pike’s impression that Complainant would not do the
flight on July 9, 2014, but Complainant never told him
that he would not do the assignment that night. Fur
ther, he did not know that Complainant actually had
communication with LFN that evening regarding his
actual flight assignment, or that it was the COM cen
ter that cancelled the assignment. At the time Mr. Pike
fired Complainant, he was not aware of the communi
cations he had with LFN the evening of July 9, 2014,
nor did he make any effort to investigate that before
he fired Complainant. Tr. at 710-17.
App. 58
As for Complainant’s FRAT, Mr. Pike opined that
there was no reason to wait for the winds to die down
because they were already at a reasonable speed and
direction for Complainant’s arrival. However, he
acknowledged that he had never flown in to The Dalles.
He did know that The Dalles and its river were known
to be windy, and winds could come up at any time.
There were no forecasted adverse weather conditions
that night, but Mr. Pike acknowledged that he did not
know what the actual weather conditions that night
were. It was very uncommon for the actual weather to
deviate drastically from the TAF. On JX 15, Mr. Pike
agreed with Complainant’s entry that he was unfamil
iar with The Dalles base he was flying to. Mr. Pike
agreed that there was no reason for Complainant to
falsify a FRAT to avoid doing a flight if he, in fact, was
going to do the flight. Tr. at 721-28.
On re-cross, Mr. Pike acknowledged that, after
hours, with Mr. Bower being gone, any revisions to a
flight assignment would go through the COM Center.
Tr. at 732.
In response to the Tribunal’s questions, Mr. Pike
stated that the COM Center relayed the flights to be
performed to Respondent’s pilots. It is reasonable for a
pilot to presume that proper coordination has occurred
prior to them receiving a mission for any particular
flight. The practice was the pilot would receive a re
quest from the LFN COM center, and operational con
trol was delegated to the pilot to accept or decline that
trip. So the DOO or Chief Pilot would not have been
aware of the flight until the next morning. It would be
App. 59
the pilot’s decision under his operational control to de
cide to go full fuel for a given flight. The pilot would be
limited by the takeoff and landing weight limitations,
but it is the pilot’s decision. Synthetic vision was not
required equipment on Respondent’s aircraft. The ab
sence of synthetic vision is not unusual for Part 135
operations. According to the reported winds, the wind
was blowing straight down runway 31 at The Dalles on
July 9, 2014.37 And runway 31/13 is the longer of the
two runways. Other than the proximity to higher ter
rain, the nearby dam, and powerlines, there is nothing
unusual about The Dalles airport. In Part 135 opera
tions, it is an everyday occurrence to fly where there is
high terrain in the Western United States.38 Tr. at 73543.
37 The Tribunal took official notice from the Pilatus PC-12
Type Certificate Data Sheet that its demonstrated cross-wind
component is 25 knots with 15 degrees of flaps, and 30 knots with
no flaps. Tr. at 745.
38 Following Mr. Pike’s testimony, the parties asked that the
Tribunal take official notice of the instrument approach charts,
the [FR minimums, and alternate airport minimums, minimum
takeoff and departure procedures for Dallesport (DLS) and Au
rora (UAO) airports, the 2009 Risk Management Handbook by the
FAA, the NTSB Safety Alert Controlled Flight into Terrain and
Visual Conditions, Nighttime Visual Flight Operations are Re
sulting in Avoidable Accidents, SA-103 (Rev. Dec. 2015), and
NTSB Safety Alert No. SA-023 Rev. 2013, Pilot’s Manage Risk to
Ensure Safety, Good Decision Making and Risk Management
Practices Can Help Prevent Accidents; Advisory Circular 12092A,
Safety Management Systems for Aviation Service Providers; Ad
visory Circular 61-134, General Aviation Controlled Flight into
Terrain Awareness; Advisory Circular 135-15, Emergency Medi
cal Services Airplane EMSA; Advisory Circular 60-20, Aeronauti
cal Decision Making; Advisory Circular 00-64, Air Medical
App. 60
Wavne Werner (pp. 55-204)
Mr. Werner has been a pilot for 54 years, has ap
proximately 16,000 hours total flight time, holds an
Airline Transport Pilot (ATP) certificate with ratings
in Learjet, Citation, and Westwind jet aircraft, and is a
Gold Seal Flight Instructor.39 He flew professionally for
25 years and then went into management and sales.
He currently works for Jet Stream Aviation. Before
working for Jet Stream he worked two years for Re
spondent as the President of the Charter and Mainte
nance Department; May 2013 to June 1, 2015. His
duties included supervising the Lewiston, Idaho base.
However, he cannot say that he has informed himself
on the FAA regulations that pertain to air medical
transportation and is vaguely familiar with recom
mendations made by the National Transportation
Safety Board (“NTSB”) regarding air medical transpor
tation. He is aware of the requirements of a pilot for
Resource Management; Advisory Circular 120-51E, Crew Re
source Management Training; Aviation Special Investigation,
Emergency Medical Services, Executive Summary dated January
25th, 2006 regarding Emergency Medical Services, Aviation Op
erations; NTSB Identification SEA 07 FA 051. This is a report that
had been modified on January 6th, 2008. Tr. at 751-54. The parties
also offered as substantive evidence the deposition transcript of
Ryan Swakon. CX 94. See Tr. at 747-51.
39
Upon the Tribunal’s questioning later, he stated that he
held a Certified Flight Instructor - Instrument and Multiengine
Instructor certificates, a Learjet 20 series and CE-500 type rating,
but does not hold a mechanic’s certificate. He does not have prior
experience with a Part 121 air carrier, did not have any freight
hauling time, and it had been about 20 years since he last flew as
a line pilot for a charter company. His recent flight instruction was
in a Cessna 152 and 172. Tr. at 200-05.
App. 61
pre-flight planning and the requirement to familiarize
oneself with all available information, including the
weather, personal and family stressors, and duty
time.40 Tr. at 55-65.
Mr. Werner has trained pilots on how to fill out
pre-flight risk assessments; the last time being two
weeks prior to his testimony. He was providing parttime flight instruction for a company in Seattle. Before
every flight - but not every day - the pilots are re
quired to fill out a FRAT41 form. Part of his instruction
when he flies with someone is how to fill out that form.
Tr. at 65-66.
When responding to safety concerns raised by pi
lots to management, Mr. Werner opined that manage
ment should evaluate the concern and make a decision
on how to proceed. If a flight is at issue, everyone gets
their heads together to decide whether the flight can
be conducted safely, whether the flight should be
grounded, or see if some things can be done to modify
the flight or airplane to conduct it safely. Each circum
stance is different. Tr. at 67-69.
The Jacksons, Jeff and his father John, own a
good-sized Fixed Base Operations (FBO)42 at Boise,
40 See 14 C.F.R. § 91.103.
41 See Tr. at 10.
42 The FAA defines an FBO as “[a] commercial business
granted the right by the airport sponsor to operate on an airport
and provide aeronautical services such as fueling, hangaring, tie
down and parking, aircraft rental, aircraft maintenance, flight in
struction, etc.” AC 150/5190-7, Minimum Standards for Commer
cial Aeronautical Activities (Aug. 28, 2006), at App 1, para, l.l(i).
App. 62
Idaho. They bought two FBOs and merged them into
the Respondent. The FBO occupies the entire north
west side of the airport. Mr. Werner has known Jeff
Jackson probably 15 years and his father John proba
bly 20 years. He has spent time with members of the
Jackson family socially. Tr. at 70-75.
At the time Mr. Werner joined Respondent, it had
already purchased Conyan Aviation in the fall of 2012.
One of the individuals that stayed on with Respondent
after the acquisition was Ryan Pike. Mr. Pike was a
line pilot for Conyan Aviation and was promoted to
Chief Pilot after the acquisition; just prior to Mr. Wer
ner joining Respondent. Tr. at 75-76.
The Jacksons asked Mr. Werner if he would be in
terested in helping them reorganize the business. Mr.
Werner now lives in Seattle, and he was very inter
ested because he likes the challenge of a startup oper
ation. He gave them a 12-month commitment and
commuted from Seattle to Boise. Mr. Werner stayed
with Respondent for 18 months, working in Boise ten
days and then coming back to Seattle for four days. Tr.
at 76-77.
Respondent purchased Conyan Aviation for char
ter and maintenance work. All of the customers from
Conyan Aviation were merged into this new portion of
the business. At the time Mr. Werner arrived, the air
carrier certificate remained in the name of Conyan Avi
ation. Tr. at 77-79.
Conyan Aviation had a long-term contract with St.
Al’s Hospital for fixed winged LFN operations. Mr.
App. 63
Werner was not involved with that contract, but he was
pretty sure that in the winter of 2013 Jeff Jackson ne
gotiated a new long-term contract with LFN for the
Boise base. He has seen this contract and believes that
it expires in the Spring of 2018. In essence, Respond
ent, as the purchaser of Conyan Aviation, was grand
fathered in that contract. This contract had Conyan
Aviation providing aircraft, pilots, and a facility at
Boise. The facility included offices for nurses, a hangar,
and facilities for pilots that were on call seven days a
week, 24 hours a day. Tr. at 79-81.
When he arrived at Respondent it was a 12-hour
base, but shortly thereafter it expanded to a 24-hour
base which would have a minimum of four pilots dedi
cated to Life Flight. These pilots were not allowed to
take charter flight assignments when they were on the
Life Flight schedule. The facilities that the pilots en
joyed at the Boise base include an office, restroom, bed
room, and they could use the kitchenette in the
adjoining LFN helicopter section. The fixed wing sec
tion had a Pilatus aircraft for LFN missions, with a
Piper Cheyenne III as a backup. The Pilatus is the
same type of aircraft used by the Lewiston flight crews.
Tr. at 81-84.
As the President of Charter Operations, Mr. Wer
ner’s duties included making sure that the pilots were
performing their duties and meeting client needs un
der the contract with LFN. In May of 2013, he was in
volved in hiring pilots for the Boise base. He was also
involved in the formation of the contract for the Lewis
ton base, which included support to the Dallesport
App. 64
base as he recalled. Discussions with LFN for that con
tract began around the end of 2013, start of 2014. As
background, LFN had a goal to get rid of their contract
pilots and operate their flights with in-house pilots.
LFN had been trying to get their Part 135 certificate
for years but had not by the end of 2013, and it was
going to run out of a contract that was servicing some
of its bases. Those bases included Portland and Hills
boro, and LFN wanted to open bases in Lewiston and
The Dalles. LFN had brand new Pilatus aircraft wait
ing for the certificate so they could operate. Because
LFN’s contract was going to run out, Jeff Jackson and
he thought that there may be an opportunity for them,
so Mr. Jackson, Mr. Werner, and Mr. Steve Bower,43
went to meet LFN’s chief operating officer to discuss
the possibility of picking up those contracts. They left
that meeting with an amendment to their contract
where Respondent picked up those bases for three or
four months, as LFN thought that for sure they would
have their Part 135 certificate by then. Tr. at 85-89.
Respondent’s personnel went back to Boise follow
ing this meeting and started putting things in place,
adding aircraft to their certificate and advertising for
pilots. They brought in a group of pilots to Boise where
Respondent and LFN personnel jointly interviewed
the pilots and starting hiring them. At that time, they
were just interviewing and hiring pilots for the Lewis
ton base only, the first base they were going to start up.
43 Respondent’s Director of Operations.
App. 65
Interviews for The Dalles base occurred a few months
later. Tr. at 89-90.
The expectation from the contract between Re
spondent and LFN was that Respondent had total op
erational control of the pilots and it would dictate all
of the circumstances of the flights. The hospital net
work would call Respondent’s pilots, who would have
the authority to either accept or reject a trip based on
all of the factors; the pilot-in-command is always the
final authority. Dispatch itself was housed within LFN,
and Mr. Werner assumes the flight requests came from
the hospital. He did not know where the dispatch or
ders came from but “[c]ommon sense [told him] it
would be from a medical team.” When pilots came on
line at the beginning of their shift, he believed that
they called the communication center to let them know.
The LFN dispatch was often called the COM Center or
Communication Center. There was not a separate
COM center that JJC had for LFN operations. If a pilot
was flying as a LFN pilot under Respondent’s banner,
they would be talking with LFN’s communication cen
ter. Tr. at 91-97
Mr. Bower and Mr. Pike normally worked from 8
a.m. to 5 p.m. during the weekdays but they were on
call in the evenings. In addition, Mr. Pike also flew
charter trips, which Mr. Bower did not do much of. Mr.
Bower was in the office most of the time and was more
or less a Pilatus expert; this was one of the main rea
sons that Mr. Werner hired him. Tr. at 97-98. Although
he was not involved in the interview process, Mr. Wer
ner believed that Complainant was hired to work at
App. 66
the Lewiston base. When he first met Complainant his
impression was he was a nice person, but possibly high
maintenance. Complainant talked a lot and tried to im
press everybody with how much he knew. Tr. at 99-101.
Mr. Werner was involved in Respondent’s termina
tion of Complainant’s employment. He was aware that
14 C.F.R. § 91.103 required air ambulance providers
who offer helicopter medivac services to have a risk as
sessment program. He agreed that the pilot-in-com
mand has full control and authority over operation of
the aircraft without limitation. It is best safety prac
tices to allow pilots to make their risk assessments
without fear of reprisal or retaliation. Respondent’s pi
lots were told that it was their discretion to make go
and no-go decisions, provided that those decisions were
safe and soundly made. Tr. at 102-03.
Mr. Werner first heard about issues during the
night of July 9,2014 the following morning. He had not
actually seen the e-mail between Mr. Bower, Complain
ant, and Mr. Pike when he received that phone call.
Nor had he reviewed the FRAT Complainant had filled
out. During that telephone call, he learned that Com
plainant had falsified a FRAT to not move the plane.
Mr. Werner did not personally investigate the condi
tion that existed on the night of July 9, 2014, call Com
plainant to talk about those conditions, or look at any
of the weather reports Complainant described in his
safety reports. Tr. at 103-04.
Mr. Werner found Complainant a little annoying.
Complainant would write e-mails about issues and
App. 67
they would all laugh at them. It seemed that Com
plainant would study a dictionary to come up with
flamboyant words, and his e-mails were very out of
character for a normal communication. At one point
Mr. Werner told Complainant that any further commu
nications on various issues were to come to him and
not Mr. Bower. Complainant was definitely stressing
Mr. Bower. CX 4144 is an example of an offensive e-mail
from Complainant. Mr. Werner found it long-winded
and flamboyant, and thought it could have been con
densed to two sentences. Complainant would sent long
e-mails and have long conversations with Mr. Bower.
They had ongoing conversations about pay in April
2014 so Mr. Werner told him to talk to LFN; but Com
plainant kept talking to Mr. Werner and Mr. Bower
about it. In virtually every conversation that Mr. Wer
ner had with Complainant, the theme was that Com
plainant was not treated fairly and that LFN had
made some promises. Mr. Werner told Complainant to
address the promises made by LFN with LFN. Tr. at
105-13.
CX 42 is an e-mail from Complainant on April 16,
2014, which Mr. Bower forwarded to Mr. Werner. Mr.
Werner’s response was: “Is this guy nuts?”. In response
to this e-mail, he sent CX 41 to Complainant about tak
ing his issues up with LFN. Early on with the LFN pi
lots, Mr. Werner and Mr. Bower brought in
Respondent’s HR people to explain what Respondent
provided. The rest of the people that were hired
44 This is an e-mail from Complainant to Mr. Werner on April
17, 2017 at 1:56 p.m.
App. 68
seemed to understand that; though Mr. Werner felt
Complainant never could. Tr. at 114-18.
As best Mr. Werner could recall, LFN obtained the
air carrier certificate around June 2014. CX 43 is an email between Mr. Werner and other members of Re
spondent’s management team. His reference to Com
plainant as “certifiably nuts” was a figure of speech;
Complainant just would not let go of the pay issue and
Mr. Werner found that irritating. To his knowledge,
Complainant was not counseled nor did Complainant
receive any written reprimands about his email com
munications. When asked if he had any prior concerns
about Complainant making misrepresentations prior
to July 9, 2014, he said that he had some doubts about
Complainant’s trustworthiness from day one. When
pressed, Mr. Werner could only cite to an issue with
Complainant not having a valid driver’s license. Tr. at
118-33.
On July 10, 2014, based on the information he ob
tained from Mr. Bower and Mr. Pike, Mr. Werner rec
ommended that Complainant’s employment be
terminated. His recommendation was based on Com
plainant’s manager’s view that Complainant had falsi
fied a FRAT, which is a safety report. Tr. at 134-35.
CX 87 is an e-mail Mr. Werner sent to Mr. Bower,
Mr. Luttz, and Mr. Pike. He admitted that he wrote the
following:
I want to find out who the pilot who [sic] said
that to LFN people that the brakes are worn
out. This pilot may be a candidate for an exit
App. 69
interview. I’m tired of this. Somebody needs to
get a handle on these babies.
Mr. Werner maintained that there was not really a
safety concern, but it was an idiosyncrasy of the Pilatus aircraft. However, he acknowledged that he was
probably a little angry when he wrote that e-mail. Tr.
at 136-40.
Mr. Werner agreed that there were potentially doz
ens of factors that a pilot had to consider when making
a pre-flight assessment. Tr. at 140. He also agreed that
a pilot should take the time that he feels is necessary
to think through all the reasonable factors before de
ciding whether a flight could be safely performed - and
he should do it within a reasonable time period. De
pending on the circumstances, it may or may be appro
priate to pressure a pilot to give a quick answer
because the customer needs to know. Tr. at 150-52.
Mr. Werner acknowledged that he did not do any
thing to independently verify the veracity of the factors
alleged by Mr. Pike that Complainant falsified on his
FRAT form. He recalled both Mr. Pike and Mr. Bower
were in agreement that they suspected Complainant
had falsified information on the FRAT.45 However,
when pressed, Mr. Werner could not recall what specif
ically was allegedly falsified on the FRAT. Tr. at 14348.
Mr. Werner was not aware that one of the reasons
Mr. Pike chose to recommend Complainant’s
45 See also Tr. at 167-68.
App. 70
termination of employment was he would not give him
a quick answer as to his risk assessment on The Dallesport reposition flight. Nor was he aware that on the
morning of July 10,2014, Mr. Bower sent Complainant
an e-mail telling him that he respected Complainant’s
risk assessment. Mr. Werner recalled that he was at his
home when Mr. Ryan and Mr. Bower called him about
a problem with Complainant, and they talked about
the fact that they suspected that Complainant had doc
tored a FRAT in order to not fly. Tr. at 150-56.
In the Spring of 2015, Mr. Werner saw Mr. Roger
Coon, Corporate Air Center’s Chief Pilot, at Boeing
Field. Mr. Werner has known Mr. Coon for five or six
years. When he walked into the Boeing facility that
day, Mr. Coons was there and he asked how he was do
ing. Mr. Werner did not recall seeing Complainant
there that day and he denied talking to Mr. Coon that
day about Complainant. Tr. at 156-60.
When confronted with his prior testimony during
the OSHA investigation,46 Mr. Werner agreed that he
did not need to be involved in Complainant’s termina
tion of employment action and that it was Mr. Pike that
terminated Complainant. Tr. at 168-69.
On re-direct Mr. Werner was shown the LFN con
tract47 at RX 1. LFN had negotiated this contract with
Respondent in Boise prior to Mr. Werner coming to
work for Respondent. Respondent’s pilots for the LFN
46 See CX 91 for ID; Tr. at 167-68.
47 There were multiple amendments to this contract. See RX
1 - RX 5; Tr. at 174-79.
App. 71
contracts were not employed indefinitely. After LFN
obtained its Part 135 certificate, it was Mr. Werner’s
assumption that the pilot would negotiate with LFN as
to whether or not they would continue to have a job
with LFN. Tr. at 173-80. JX 11 contains notes from a
June 17, 2014 pilot meeting where the pilots were in
formed that LFN had obtained its Part 135 certificate.
An incident occurred between Mr. Young (another
pilot for Respondent) and Complainant on the ramp in
front of LFN’s offices in Lewiston. Someone had to
break up the confrontation between these two pilots
before it became physical. Mr. Jeff Jackson and Mr.
Werner went to Lewiston the next day and addressed
the pilot’s conduct with each of them. Both pilots were
reprimanded. JX 648 is Complainant’s reprimand. Tr. at
181-87.
Concerning the questioning about his conversa
tion with Mr. Coon, Mr. Werner denied talking to any
body at Corporate Air Center about Complainant,
including Mr. Coon. He also denied speaking to any
other air carrier about Complainant. Tr. at 189-90.
On re-cross Mr. Werner was shown CX 84, where
he asked Mr. Pike to give a statement regarding Com
plainant’s termination of employment. He asserted
48
JX 6 references an attachment. The Tribunal inquired
about this and the parties informed the Tribunal that the attach
ment was a copy of an e-mail at RX 9-1 and CX 1. Tr. at 185. RX 7
is an e-mail Mr. Werner sent to Complainant that he was directed
to talk to Mr. Werner only about administrative matters.
App. 72
that this was only good business - documenting any
thing out of the ordinary. Tr. at 197-200.
C. Facts in Dispute
1. Respondent’s Statement of Facts
In its brief, Respondent asserts that Complain
ant’s misrepresentations on the FRAT form was the fi
nal straw in his difficult and short employment with
Respondent. A few months prior Complainant had
been reprimanded for unprofessional conduct involv
ing an argument with another pilot in front of one of
Respondent’s customers. Further, during his employ
ment, Complainant repeatedly raised questions re
garding promises allegedly made by LFN that were not
within Respondent’s control. Resp. Br. at 1-2.
On July 9, 2014, Complainant was given the as
signment to reposition an aircraft from Lewiston,
Idaho to Dallesport, Oregon, and then return the next
morning with the relief pilot. Respondent’s pilots are
required to complete a FRAT for each shift. Until the
night of July 9, Complainant had demonstrated that
he knew how to correctly complete a FRAT form. On
the evening of July 9, 2014, Complainant deviated
from his practice on how to complete the FRAT and in
doing so he misrepresented the risks associated with
that night. Complainant now attempts to hide behind
the argument that he was going above and beyond
what he was asked to do in accessing risk that evening.
Resp. Br. at 2.
App. 73
In an effort to justify his FRAT scores, Complain
ant’s testimony shows that his risk scores were based
on non-existent factors or conditions. In considering
the misrepresentations on the FRAT form, his alterca
tion with a co-worker, LFN’s refusal to have him fly for
them and difficulty management had with Complain
ant, Respondent terminated his employment. Resp. Br.
at 3.
Respondent argues that Complainant’s misrepre
sentations on the July 9 FRAT form do not qualify as
a protected activity because the scores he entered on
the FRAT were not subjectively and objectively reason
able. Complainant argues that four FAA regulations
support his protected activity, but there is no evidence
that Complainant’s supervisors even questioned Com
plainant related to issues of duty time, potential fa
tigue, or his claimed lack of familiarity with the
Dallesport airport. Further, even if Tribunal was to
consider the “safety” arguments from the FAA regula
tions as necessary to resolve the matter, Complainant
still fails to meet his burden because he was not asked
to do anything that violated or could likely violate any
air safety regulation, order, or standard. And there is
no proof that supports Complainant’s speculation that
Mr. Werner or any other of Respondent’s employees
provided any input. Resp. Br. at 3-4.
App. 74
2. Complainant’s Statement of Facts49
Complainant asserts that he was looking for a
“home” when he applied to work for LFN for a fixed
wing EMS pilot position in November 2013; a place
that would support his commitment to safety. He was
also excited about the promise of growth and expan
sion and promotion possibilities. At his initial inter
view he was told that LFN lacked a certificate but its
receipt was imminent. Consequently, Respondent
would have to step in and cover LFN’s EMS flights
needs using Respondent’s certificate. A few days fol
lowing a second interview, Mr. Bower offered Com
plainant a position at about $65,000 per year, plus full
benefits for his wife and children, and additional pay
for additional time worked, according to LFN’s pay pol
icies. Complainant accepted the offered, thereafter
commuting from Friday Harbor, Washington to Lewis
ton, Idaho for shifts of seven days on, seven days off.
Complainant was employed by Respondent50 from
December 27,201351 until July 10, 201452. On March 6,
2014, Respondent’s Chief Pilot, Mr. Pike, sent out a
49 See Compl. Br. at 4-17.
50 In Complainant’s brief, he asserts that he was employed by
both JJC and LFN. Compl. Br. at 5. However, prior to the hearing
the Complainant and LFN settled their dispute and the Tribunal
approved their settlement agreement on June 15, 2017. As a re
sult of that settlement, on August 15, 2017, the Tribunal issued
an Order Dismissing Respondent LFN and Amending Caption.
51 Complainant’s brief references the year 2014; however,
this is obvious a typographical error. Compl. Br. at 5.
62 Complainant’s brief references the year 2017; however,
this also is an obvious typographical error. Id.
App. 75
form via e-mail called a “Flight Risk Assessment Tool”.
The only training provided about how to use this form
was contained in that e-mail. There did not appear to
be any problem with Complainant understanding how
to use the form until the morning of July 10, 2014.
Hearing testimony evidenced that both parties agreed
that the risk assessment tool was a mean of taking a
big-picture perspective of all potential safety factors of
an assignment, a “tool to assist in good decision mak
ing.” Compl. Br. at 6.
Complainant typically worked the night shift.
Throughout his employment with Respondent, LFN
operations were understaffed by at least one pilot, re
sulting in pilots routinely getting stuck in remote loca
tions and reaching the “absolute limit of their duty
time.” Id. It was no different during the week of July 8,
2014. On the night of July 8-9, 2014, Complainant had
a particularly long day. Ordinarily, LFN night pilots
were scheduled to work from 8 p.m. to 8 a.m., 12-hour
shifts. However, due to pilot shortages coverage was
proving difficult. On July 8, 2014, Mr. Pike called Com
plainant to ask if he could come in early because of cov
erage issues. Hours later, on July 8, 2014, Mr. Swakon,
the Director of Operations for LFN, invited the Lewis
ton pilots to a conference call, where he informed them
that they were not going to be full-fledged LFN pilots.
This was later confirmed by Mr. Bower in an e-mail.
Complainant started his shift early on the evening
of July 8, 2014, beginning at 7 p.m. He flew an EMS
flight to Boeing Field that night, and ended his shift
the next morning at 9 a.m. Upon clocking out, Mr. Pike
App. 76
told Complainant to get his 10 hours of rest, report to
work early at 7 p.m. and be prepared for anything for
the evening shift. During Complainant’s 10-hour rest
period, Mr. Bower e-mailed Complainant about “an
atypical and unorthodox shift assignmentemail,” and
directed Complainant to reposition the aircraft to the
Dallesport base once Ms. Schuler returned the aircraft
to Lewiston. He was to then to return to Lewiston with
Mr. Graham, the daytime relief pilot, at approximately
7:30 a.m. It was clear to Complainant that this assign
ment was in addition to any EMS flights assigned to
him that night out of the Dallesport base; assignments
would come from LFN dispatch. Id. at 7-8.
Complainant wrote back to Mr. Bower via e-mail,
cc’ing Mr. Pike, Mr. Swakon, and Mr. Graham, express
ing his safety concerns and discomfort with the assign
ment as given. JX15. Among his concerns were fatigue,
possible encroachment on duty time limitations, and
the likelihood of exceeding his 12-hour shift after hav
ing just come off of a 14-hour day, “putting him in a
‘coffin corner’.53” He also expressed concerns about not
53 The “Coffin Corner” is a term used in aviation to describe
operations at high altitudes where low indicated airspeeds yield
high true airspeeds at high angles of attack. The coffin corner ex
ists in the upper portion of the maneuvering envelop for a given
gross weight and G-force where the difference between the stall
and the maximum airspeed narrows. See FAA-H-8083, Airplane
Flying Handbook (2016), chap 15, at 15-10, available at https://
www.faa.gov/regulationspolicies/handbooks_manuals/aviation/
airplane_handbook/media/airplane_flying_handbook.pdf; Advisory
Circular 61-107B, Aircraft Operations at Altitudes Above 25,000
Feet Mean Sea Level or Mach Numbers Greater Than .75 (Mar.
App. 77
receiving training about the Dallesport Base facilities,
and about not knowing where he would rest. He esti
mated that if everything went exactly as planned,
Complainant would be working up to 131/2 hours,
when nothing that week had gone as planned. No man
ager responded to his e-mail. Comp. Br. at 8.
On July 9, 2014, Complainant showed up to work
at 7 p.m., but Ms. Schuler had not returned to Lewiston
with the aircraft he was to use that evening. Despite
the delay, Mr. Pike told Complainant to proceed as
planned; however, the plane did not arrive until 10:20
p.m. While waiting for the aircraft, Complainant had
been instructed that he may also need to go to Aurora,
Oregon with one of the helicopter pilots, possibly ride
back with the helicopter pilot, then go to Dallesport,
and then return to Lewiston the next morning. Around
10 p.m., and prior to Ms. Schuler’s arrival with the air
craft, Complainant called the LFN Communication
Center about his safety concerns as he wanted to en
sure that they knew of the risks. The Communication
Center confirmed that Complainant needed to fly to
Aurora as well. Complainant again raised his concerns
about possible fatigue and interruptions in his rest pe
riod. Complainant also discussed his concerns with the
Communication Center Administrator On Call, Mr.
Pomponio. After making a telephone call to LFN, Mr.
Pomponio called Complainant back and told him not to
29, 2013), at 3 and 42, available at https://www.faa.gov/document
library/media/advisory_circular/ac_61-107b.pdf.
App. 78
do anything unsafe; Complainant felt heard by LFN.
Compl. Br. at 8-9.
Complainant filled out a FRAT to send to Mr.
Bower, Mr. Graham, Mr. Swakon and Mr. Pike, with a
score of 60 points. This number equates to a medium
risk, not a mandatory no-go. Complainant testified ex
tensively at the hearing about his reasons for filling
out the form as he did that night. Complainant then
called Mr. Pike and they discussed base accommoda
tions, but Mr. Pike did not review the specific factors
on the FRAT. Once Mr. Pike gave Complainant permis
sion to decline the return trip and to get hotel accom
modations in The Dalles if it became necessary,
Complainant felt confident that Respondent agreed
with LFN’s assessment. Complainant then met up
with the helicopter pilot and headed out to the plane
to fly from Lewiston to Aurora. While heading to the
aircraft, Complainant received a telephone call on the
LFN duty phone and was told by the Communications
Center to stand down and not go to Aurora or The Dal
les. After receiving this directive, Complainant con
firmed that he was ready to take any dispatch calls,
calling the Communications Center again at 1 a.m. to
confirm that he remained willing to take assignments;
none came. Compl. Br. at 9-11.
On the morning of July 10, 2014, Mr. Bower re
sponded to Complainant’s e-mail from the night prior.
Complainant realized that there had been a serious
miscommunication about the events and wrote back to
Mr. Bower making clear that the stand-down decision
was not his own and offered to do a reposition flight
App. 79
while he still had some duty time left. Complainant did
not hear back from his supervisors after sending this
e-mail until he was fired. Following the sending of his
e-mail, Complainant went on rest per Mr. Bower’s in
structions. Compl. Br. at 11.
Around 1 p.m., July 10, 2014, while Complainant
was on rest, Mr. Pike called him and told Complainant
that he was being fired because of the FRAT he com
pleted the night prior. Respondent and LFN then
drafted a personnel action form stating that they fired
Complainant because he submitted “company docu
mentation to indicate that the repositioning was un
safe,” referring to the FRAT, and because he relayed a
repositioning request that had not occurred (DC 7).
Compl. Br. at 11. At that time nothing was mentioned
of Respondent’s later proffered reasons for termina
tion, including Complainant’s difficulty getting along
with others or an issue with his driver’s license. Com
plainant asserts that the hearing testimony revealed
no evidence that Complainant relayed a repositioning
request. According to Complainant, every one of the
putative decision makers testified that Complainant’s
safety reports the night of July 9, 2014 were the pri
mary reason for Complainant’s termination of employ
ment. Complainant testified that, during the call with
Mr. Pike, he expressed concern over the message that
his termination would send to other pilots regarding
risk assessments. Compl. Br. at 11-12.
Complainant asserts that it is clear from the hear
ing testimony that Respondent performed very little
investigation into the events of July 9,2104 before they
App. 80
made the decision to fire Complainant. Mr. Pike testi
fied that he had no knowledge of the additional flights
to Aurora, nor what was contained in the dispatch rec
ords, nor that Complainant remained able and willing
to conduct flights after risk mitigation. Further, Mr.
Pike did not tell Complainant during the risk mitiga
tion phone call on the night of July 9, 2014 that he
found any of the safety elements to be false or that he
took any particular issue with the entries at the time
of the events. Mr. Pike testified that by not giving an
immediate yes or no answer Complainant was being
insubordinate and Complainant’s failure to make an
immediate go/no-go assessment was grounds to termi
nation his employment. Compl. Br. at 12-13.
Although in June 2014 LFN had obtained its Part
135 certificate, it was clear to Respondent’s pilots that
the pilots were to follow the training and protocol of
Conyan Aviation and the protocols, training and safety
management system of LFN throughout their employ
ment. In support of this Complainant cites to the facts
that Complainant and the other Lewiston pilots wore
LFN uniforms and identifying badges; Respondent’s
management and its pilots were all to follow LFN
standards of conduct; Complainant (and the other
Lewiston pilots) only flew LFNowned aircraft on LFN
flights; prior to Mr. Bower’s July 9, 2014 e-mail, Com
plainant had only ever received flight assignments
from LFN dispatch; Mr. Miles, LFN’s Director of Safety,
was the person that provided training on use of the
FRAT; Respondent’s managers described the FRAT as
a LFN requirement; the day before Complainant was
App. 81
fired, Respondent congratulated the Lewiston pilots on
their progress towards becoming full-fledged LFN em
ployees; and one of the reasons Mr. Bowers and Mr.
Pike fired Complainant was LFN’s demand that he be
removed from the contract, a fact LFN disputes. The
only thing standing in the way of LFN describing itself
as Complainant’s employer was a federal regulation
prohibiting it from employing a pilot without a Part
135 certificate. Compl. Br. at 13-15.
Following Complainant’s firing, Respondent’s re
taliation continued. After months of looking for work,
Complainant finally began to see progress in obtaining
employment with Corporate Air Center, a company
that conducts Part 91 operations based out of Burling
ton, Washington. After Complainant had applied for a
position and conversed with the company for a few
weeks, Corporate Air’s Chief Pilot, Mr. Coon, had Com
plainant fly with him with passengers from Belling
ham to Boeing Field on a test flight in March 2015.
After the passengers disembarked at Boeing Field, Mr.
Coon began indoctrination training with Complainant.
As they prepared the aircraft for the return flight that
afternoon, a man with a baseball cap and sunglasses
walked along the plane and looked up at Complainant
who was in the cockpit. Complainant later learned that
person was Mr. Werner. Mr. Werner then spoke with
Mr. Coon outside of the aircraft point and gesturing in
Complainant’s direction. At the hearing, Mr. Werner
admitted that he saw Mr. Coon at Boeing Field that
day and that he had known him for many years. Com
plainant knew that Mr. Werner could exert strong
App. 82
influence over his prospective employment with Mr.
Coon and Corporate Air. Two weeks after these flights,
Complainant received a voice mail telling him that
Corporate Air was “going to go in another direction.”
Compl. Br. at 15-16.
Mr. Werner “vehemently demanded” that Re
spondent fire Complainant in July 2014. Mr. Werner
found Complainant annoying, of questionable charac
ter, described him as “certifiably nuts”, and admitted
that his demand for termination was motived by anger.
Compl. Br. at 16.
As for financial and emotional impact of Com
plainant’s termination of employment, Complainant
lost his salary and medical benefits for himself and his
family. He was “in mourning” after his termination. It
took Complainant nearly an entire year to find replace
ment employment. His loss of his job caused him a
great deal of self-doubt and disappointed about the ca
reer he loves. Complainant testified that Respondent’s
action affected his family and his kids saw that he was
a “changed man.” Despite what he has endured, he was
resolved not to quit aviation as he cannot remember
ever wanting to do anything else. Because of the diffi
culty in finding employment in the Pacific Northwest,
he took a position with Air Methods in New Mexico in
June 2015, moving his wife and children there, far
from their immediate family in Friday Harbor and
Olympia, Washington. Comp. Br. at 16-17.
App. 83
D. Summary of the Documentary Evidence
In support of his case, Complainant presents the
following evidence, as summarized below:
Exhibit Description
1
Compilation of e-mails (11 pages)
2
FRAT form (lpage)
3
E-mail from Ryan Pike (2 pages)
4
Response to interrogatories and request for
production (13 pages)
6
Safety Management System Manual,
11/11/2013 (23 pages)
8
Employee Policies Handbook (113 pages)
9
Duties and responsibilities
13
Agreement for the provisions of aviation
services (17 pages)
14
Amended No. 3 to the agreement 42 for
provision of aviation services between Life
Flight Network, LLC and Conyan Aviation,
Inc. (13 pages)
15
E-mail, 7/10/2014, Subject: Rob Kreb (2
pages)
16
E-mail, 7/9/2014, Subject: Lewiston
Schedule (1 page)
17
E-mail, 7/9/2014, Subject: Base change for
tonight (3 pages)
18
Letter, dated 1/16/2015 (59 pages)
23
E-mail,7/18/2014, Subject: Rob (1 page)
App. 84
24
E-mail, 7/1/2017, Subject: Fourteen Hours
(1 page)
26
E-mail, 4/28/2014, Subject: Revisiting old
receipts (3 pages)
28
E-mail, 3/15/2014, Subject: FX Pilot
Position/Bases (1 page)
30
E-mail, 3/14/2015, Subject: Rob Kreb (1
page)
31
E-mail, 7/10/2014, Subject: Last Night (1
page)
32
E-mail, 7/10/2014, Subject: Last Night (3
pages)
35
Baldwin General User’s Guide (14 pages)
36
Baldwin Safety Reporting System (13
pages)
40
E-mail chain most recently dated
7/18/2014; Subject: Statement about Rob
Kreb (2 pages)
41
E-mail chain most recently dated
4/28/2014; Subject: Revising Old Receipts
(3 pages)
42
E-mail chain most recently dated
4/16/2014; Subject: Revising Old Receipts
(3 pages)
43
E-mail chain most recently dated 6/9/2014;
Subject: Jacksons/LFN/Aero Air (2 pages)
44
E-mail chain most recently dated 6/19/14;
Subject: LFN FW Newer Hires’ PayBenefits (2 pages)
App. 85
54
E-mail string ending from Wayne Werner
to Rob Kreb dated 3/17/2017; Subject FYI
(3 pages)
56
E-mail string ending from Steve Bower to
Rob Kreb dated 4/3/2014; Subject: SIDS
Phraseology (2 pages)
57
E-mail string ending from Steve Bower to
Rob Kreb dated 4/12/2014; Subject Resolve
(2 pages)
58
E-mail from Ryan Pike to Craig Young, Rob
Kreb, Daniel Jackson dated 6/9/2017;
Subject: New schedule (1 page)
61
Respondent Jackson Jet Center, LLC’s
Objections, Answers and Responses to
Complainant’s First Set of Interrogatories
and Request for Production (11 pages)
62
Respondent Jackson Jet Center, LLC’s
Supplemental Objections, Answers and
Responses to Complainant’s First Set of
Interrogatories and Request for Production
(15 pages)
63
E-mail string ending from Ryan Pike to
Rob Kreb dated 3/6/2017; Subject: Life
Flight Risk Assessments (1 page)
64
E-mail string ending from Lori Vanzant to
Steve Bower, Rob Kreb, Craig Young dated
4/17/2014; Subject: Flight Manifest
processing (1 page)
68
Transcript of Audio File (4 pages)
69
Transcript of Audio File (3 pages)
App. 86
70
Transcript of Audio File (6 pages)
71
Transcript of Audio File (7 pages)
72
Transcript of Audio File (3 pages)
73
Transcript of Audio File (5 pages)
74
Transcript of Audio File (4 pages)
78
Respondent’s Expert Witness Disclosures
(6 pages)
84-1
E-mail dated 7/18/2014 from Wayne
Warner to Kevin Hofeld, Jack Jackson;
Subject: FW: Statement about Rob Kreb
(lpage)
84-2
E-mail dated 7/18/2014; Subject: FW:
Statement about Rob Kreb-Attachment:
Termination of Rob Kreb (1 page)
85
E-mail dated 7/9/2014 from Rob Kreb to
Rob Kreb, Steve Bower; Subject: Re: base
change and FRAT form attached (6 pages)
87
E-mail dated 7/2/14 from Wayne Werner to
Steve Bower, Steve Lutz, Ryan Pike;
Subject RE: Voice mail (3 pages)
89
E-mail dated 1/31/2017; Subject Job
Posting (4 pages)
91
Wayne Werner Interview-Transcribed Copy
dated (8 pages)
95
Transcript-Deposition of Dominic
Pomponio taken on 4/11/2017
96
Transcript-Deposition of Waldon Wayne
Werner taken on 4/7/2017
App. 87
97
Transcript-Deposition of Ronald C. Fergie
taken 4/12/2017
98
Transcript-Deposition of Barry Janies “B J”
Miles, Jr. taken on 4/3/2017
9954
Transcript Deposition of Ryan Swakon,
taken on 4/4/17
In support of its position, Respondent presents the
following evidence, as summarized below:
Exhibit Description
1
Agreement for the Provision of Aviation
Services dated 2/1/2013 (17 pages)
2
Amended Number One to Agreement for
the Provision of Aviation Services dated
8/1/2013 (3 pages)
3
Amended Number Two to Agreement for
the Provision of Aviation Services dated
8/1/2013 (1 page)
4
Amended Number Three to Agreement for
the Provision of Aviation Services dated
12/1/2013 (13 pages)
5
Amended Number Four to Agreement for
the Provision of Aviation Services dated
4/1/2014 (1 page)
6
2014 Pilot Duty Logs (12 pages)
54 Although not formally admitted at the hearing, the tran
script is clear that certain portions of this deposition were offered
and accepted by the Tribunal.
App. 88
7
E-mail dated 4/17/2014from Wayne Werner
to Rob Kreb; Subject: Revisiting old
receipts (2 pages)
8
E-mail dated 4/17/2014from Wayne Werner
to Rob Kreb; Subject: Revisiting old
receipts (3 pages)
9
E-mail dated 4/28/2014 from Steve Bower
to Wayne Werner; Subject: Dude Seriously?
(2 pages)
10
FRAT (1 page) dated 2/17/2014
11
FRAT (1 page) dated 3/9/2014
12
FRAT (1 page) dated 3/10/2014
13
FRAT (1 page) dated 3/11/2014
14
FRAT (1 page) dated 3/12/2014
15
FRAT (1 page) dated 3/13/2014
16
FRAT (1 page) dated 3/14/2014
17
FRAT (1 page) dated 3/15/2014
18
FRAT (1 page) dated 3/16/2014
19
FRAT (1 page) dated 3/17/2014
20
FRAT (1 page) dated 3/23/2014
21
FRAT (1 page) dated 3/24/2014
22
Flight Manifest (1 page) dated 3/24/2014
23
FRAT (1 page) dated 3/25/2014
24
FRAT (2 pages) dated 3/26/2014
25
Flight Manifest (1 page) dated 3/26/2014
26
FRAT (1 page) dated 3/29/2014
App. 89
27
FRAT (1 page) dated 3/30/2014
28
Flight Manifest (1 page) dated 3/30/2014
29
FRAT (1 page) dated 3/31/2014
30
FRAT (1 page) dated 4/8/2014
31
FRAT (1 page) dated 4/9/2014
32
Flight Manifest (1 page) dated 4/9/2014
33
FRAT (1 page) dated 4/10/2014
34
FRAT (2 pages) dated 4/12/2014
35
Flight Manifest (2 pages) dated 4/12/2014
36
Flight Manifest (2 pages) dated 4/12/2014
37
FRAT (1 page) dated 4/13/2014
38
FRAT (1 page) dated 4/14/2014
39
FRAT (1 page) dated 4/15/2014
40
FRAT (1 page) dated 4/16/2014
41
FRAT (1 page) dated 4/22/2014
42
Flight Manifest (1 page) dated 4/22/2014
43
FRAT (2 pages) dated 4/23/2014
44
Flight Manifest (2 pages) dated 4/23/2014
45
FRAT (2 pages) dated 4/24/2014
46
Flight Manifest (2 pages) dated 4/24/2014
47
FRAT (2 pages) dated 4/25/2014
48
Flight Manifest (1 page) dated 4/25/2014
49
Flight Manifest (1 page) dated 4/25/2014
50
FRAT (1 page) dated 4/26/2014
App. 90
51
FRAT (1 page) dated 4/27/2014
52
Flight Manifest (1 page) dated 4/27/2014
53
FRAT (1 page) dated 4/28/2014
54
FRAT (1 page) dated 4/29/2014
55
FRAT (1 page) dated 4/30/2014
56
FRAT (1 page) dated 5/6/2014
57
Flight Manifest (1 page) dated 5/6/2014
58
FRAT (1 page) dated 5/7//2014
59
FRAT (1 page) dated 5/8/2014
60
Flight Manifest (1 page) dated 5/8/2014
61
FRAT (1 page) dated 5/9/2014
62
Flight Manifest (1 page) dated 5/9/2014
63
FRAT (1 page) dated 5/13/2014
64
FRAT (1 page) dated 5/14/2014
65
FRAT (1 page) dated 5/20/2014
66
FRAT (1 page) dated 5/21/2014
67
FRAT (1 page) dated 5/22/2014
68
FRAT (1 page) dated 5/24/2014
69
FRAT (1 page) dated 5/24/2014
70
Flight Manifest (1 page) dated 5/24/2014
71
FRAT (1 page) dated 5/25/2014
72
FRAT (1 page) dated 5/26/2014
73
Flight Manifest (1 page) dated 5/26/2014
74
Flight Manifest (1 page) dated 6/3/2014
App. 91
75
Flight Manifest (1 page) dated 6/4/2014
76
Flight Manifest (1 page) dated 6/5/2014 or
6/6/2014 date is not legible
77
FRAT (1 page) dated 6/24/2014
78
Flight Manifest (1 page) dated 6/24/2014
79
FRAT (1 page) dated 6/25/2014
80
Flight Manifest (1 page) dated 6/25/2014
81
Flight Manifest (1 page) dated6/27/2014
82
Flight Manifest (1 page) dated 6/29/2014
83
Conyan Aviation d/b/a Jackson Jet Center
General Operations Manual (64pages)
84
Transcript-Deposition of Robert Kreb
taken on 4/6/2017
The parties also present the following joint exhib
its:
Exhibit Description
JX1
Respondent’s Employee Handbook
JX 2
Complainant’s acknowledgement of receipt,
dated Jan. 6, 2014, of Respondent’s
Employee Handbook.
JX 3
LFN Pilot Schedule matrix March December 2014
JX 4
Respondent/LFN Lewiston Schedule
March - December 2014 (rev. 3-18/2014)
JX 5
Respondent/LFN Lewiston Schedule
March - December 2014 (rev. 4-02-2014)
App. 92
JX 6
Respondent personnel action form to
Complainant, dated May 1, 2014 re: 4/28
incident with another employee at the
workplace in front of customers.
JX 7
Respondent personnel action form, dated
7/10/2014, about falsifying company
document to indicate the 7/9 repositioning
was unsafe.
JX 8
Complainant’s July 2014 pilot duty log
showing 2.3 hours flown under Part 135 on
July 8.
JX 9
E-mail from Mr. Pike, dated Mar. 6, 2014,
to All Life Flight Pilots, re: Life Flight Risk
Assessment, directing it to be completed
for every shift the pilot is assigned where
left hand side would be filled out at the
beginning of every shift, but right hand
side was to be filled out only after assigned
a flight.
JX 10
E-mail from Mr. Pike, dated March 6, 2014,
asking all pilots to acknowledge receipt of
his earlier e-mail about use of the risk
assessment tool.
JX 11
E-mail from Mr. Bower to numerous
persons, including Complainant, dated
June 19, 2014, summarizing current issues
and problems at Respondent. This e-mail
includes two comments:
• Mr. Pike addressed duty time
limitations for LFN pilots noting
that the pilots are scheduled for 12
______hr shifts but are to work up to, but
App. 93
•
not over 14 hours. If close to timing
out, offer the comms center options
instead of just declining the mission
based on duty time.
a statement by Mr. Werner that
LFN received is Part 135 certificate
on June 17, 2014.
JX 12
E-mail from Mr. Bower to pilots, including
Complainant, dated July 1, 2014,
JX 13
RE: Fourteen hours. The e-mail attempts to
further clarify the duty limitations. E-mail
from Mr. Swakon to Complainant, dated
July 7, 2014, RE: AMRM meeting/HR
Correlation and Complainant’s e-mail to
Mr. Swakon, dated June 26, 2014 with
same subject line. Complainant’s e-mail
raises pay and benefits issues.
JX 14
E-mail from Mr. Bower to Complainant,
dated July 9, 2014 at 5:03 PM, RE: Base
change for tonight.
JX 15
E-mail from Complainant to Mr. Bower,
cc’d to Mr. Pike, Mr. Swakon and Mr.
Graham, dated July, 9, 2014 at 6:29 PM
indicating reposition would be a medium to
high FRAT.
JX 16
E-mail from Complainant to himself, cc’ing
Mr. Bower, Mr. Graham, Mr. Pike and Mr.
Swakon, dated July 9, 2014 at 11:50 PM,
with his completed and signed FRAT.
JX 17
E-mail from Mr. Swakon to Mr. Miles,
cc’ing Mr. Griffiths, dated July 9, 2014 at
10:48 PM, asking how Mr. Miles wanted to
App. 94
handle Complainant’s e-mail about the
Base Change for tonight.
JX 18
E-mail from Mr. Swakon to Mr. Griffith and
Mr. Miles, cc’ing Mr. Pomponio, dated July
9, 2014 at 11:04 PM addressing
Complainant’s “Base Change tonight” email earlier that evening.
JX 19
E-mail from Mr. Bower to Complainant,
cc’ing Mr. Pike, Mr. Swakon, dated July 10,
2014 at 8:31 AM, RE: Last night. Mr.
Bower notes that he does not agree with
Complainant’s risk assessment decision
but recognizing the PIC has go/no-go
decision authority.
JX 20
E-mail from Complainant to Mr. Bower,
cc’ing Mr. Pike and Mr. Swakon, dated July
10, 2014 at 9:19 AM, responding to JX 19
and attaching his completed FRAT for the
night prior.
JX 21
E-mail from Mr. Werner to Mr. Swakon,
cc’ing Mr. Bower, Mr. Pike and Mr. Jeff
Jackson, dated July 10, 2014 at 1:06 PM,
RE: Complainant, and Mr. Werner strongly
recommends terminating Complainant’s
employment.
JX 22
E-mail from Mr. Werner and Mr. Pike,
dated July 10, 2014, both around 1 PM, RE:
Complainant, and notes the intent to
terminate Complainant’s employment.
JX 23
Complainant’s signed and completed
FRAT, dated 7/8/2014
App. 95
JX 24
Jackson Jet Center Flight Manifest for
N890WA, dated July 8, 2014, where
Complainant was the pilot reflecting 2.3
hrs of flight time from Lewiston to Boeing
field and return.
JX 25
Complainant’s signed and completed
FRAT, dated 7/9/2014
II.
ISSUES
•
Was the complaint timely filed
•
Is Complainant and/or Respondent cov
ered under the Act?
•
Did the Complainant engage in protected
activity?
•
Did the Respondent take an unfavorable
personnel action against Complainant?
•
Was the protected activity a contributing
factor in the unfavorable personnel ac
tion?
•
In the absence of the protected activity,
would the Respondent have taken the
same adverse action?
A. Complainant’s Position
Respondent fired Complainant for making what
they themselves describe as a safety report, simply be
cause they allege they disagreed with them. Complain
ant testified at length as to each and every factor and
gave reasoned, sound and credible support for each,
App. 96
reasons Respondent’s management did not even
bother to hear or even investigate before firing him.
Complainant’s safety reports were an inconvenience to
Respondent. Complainant notes with some irony that
Respondent says their own error in the process of firing
Complainant were merely honest mistakes, but any
mistakes of fact in Complainant’s safety reports were
grounds for his termination of employment, and
demonstrate dishonesty. Compl. Br. at 18-19.
Complainant proved each of the four elements
necessary to support his claim by a preponderance of
evidence. The first two elements, whether the parties
are subject to the Act and Respondent’s adverse em
ployment action are undisputed. Respondent admits
that the contributing factor, indeed the decisive factor,
in its decision to fire Complainant was the safety risk
assessment he submitted, and the e-mails surrounding
that risk assessment. Within that assessment, Com
plainant stated concerns for potential or actual viola
tions of the Federal Aviation Regulations, including
duty time violations (citing 14 C.F.R. § 135.267(c)); con
cern for fitness for duty throughout the night’s assign
ment (citing 14 C.F.R. § 91.13)55; rushed and unsound
preflight decision making (citing 14 C.F.R. § 91.103)56;
and lack of familiarity with the Dallesport base facili
ties (citing 14 C.F.R. § 135.329). This risk assessment
tool is a decision making tool who use is recommended
by the NTSB for all EMS operators, be it helicopter or
55 Complainant also referenced AC 117-3.
56 Complainant also referenced AC 135-15, at 13; NTSB Rec
ommendation A-06-12-15; FAA-H-8083-2, at 3-2 and 4-2-44.
App. 97
fixed wing operations. Complainant asserts that the
FAA 2009 Risk Management Handbook echos the fac
tors articulating in 14 C.F.R. § 135.617, which applies
to helicopter operations, and extends this pre-flight
risk analysis to all pilots. Compl. Br. at 19-25.
Complainant was acting within the expectations
of LFN’s program and reasonably believed that he was
required to report all of the factors enumerated in the
statute and per federal aviation guidance that might
affect safe performance of his duties, regardless of
whether they were on the template risk assessment
form. Compl. Br. at 24.
Mr. Pike testified that one of the reasons he fired
Complainant because he would not make a quick
go/no-go decision, and that he was allegedly waffling in
his commitment to take the flight. But, as Mr. Bower
and Mr. Werner pointed out, it takes some time for a
pilot to assess the safety of a scenario and it is entirely
reasonable for a pilot to wait to see how things develop.
Further, both the certificate holder and the pilot
shared a joint duty of engaging in safe conduct of the
operations and Complainant reasonably sought input,
for which he was fired. Compl. Br. at 24.
Complainant was not familiar with the Dallesport
base facilities as noted in his e-mails and telephone
call to LFN dispatch, and this increased risk. As an
EMS pilot he was required to perform specific duties
that required him to be familiar with the base, such as
where to pick up medical staff and to filling oxygen. If
arriving in the middle of the night, he did not know
App. 98
where to refill the oxygen bottles, the pass code to ac
cess the bathroom or the fuel, or how to contact a per
son who would help him with such things; so he sought
his employer’s help and they scoffed at his request.
However facilities training is an FAA requirement and
Complainant sought at least some introduction to
what he would expect when flying EMS flights out of a
foreign base. Compl. Br. at 24-25.
Complainant argues that LFN was a joint em
ployer of Complainant and that it was reasonable for
Complainant to expect that the FAA required him to
complete the full safety risk assessment, taking into
consideration all the factors, including those in 14
C.F.R. § 135.617, despite the fact that he was not a hel
icopter pilot. This is so because the statute requires op
erators to have such a system in place, he was told to
follow the system, and LFN was a joint employer of
Complainant. Compl. Br. at 25-26.
Complainant acknowledges that the case law is
not conclusive as to whether the “economic realities”
test is the appropriate standard in A1R21 cases. How
ever, he argues it should be in light of the remedial pur
pose and broad coverage reflected in 29 C.F.R.
§ 1979.101. Regardless, the employment relationship
between LFN and Complainant satisfies the nonexclu
sive “economic realities” factors defined in TorresLopez v. May, 11 F.3d 633, 638 (9th Cir. 1997).57 He
57 According to Complainant, those factors are:
A. The nature and degree of control of the workers;
B. The degree of supervision, direct or indirect, of the work;
App. 99
maintains that nearly every single one of those factors
counsel a finding of an employment relationship be
tween Complainant and LFN: LFN hired Complain
ant; established his rate of pay, established protocol
and performance stands; was in regular communica
tion regarding performance of Complainant’s duties;
expected to be Complainant’s permanent employer;
only flew LFN own aircraft in furtherance of LFN; was
required to wear LFN’s uniform; and just one day prior
to his termination of employment was told he was
C. The power to determine the pay rates or the methods of
payment of the workers;
D. The right, directly or indirectly, to hire, fire, or modify
the employment conditions of the workers;
E. Preparation of payroll and payment of wages;
F. Whether the work was a specialty job on a production
line;
G. Whether responsibility between the labor contractor and
putative employer passe [sic] with “material changes
“(sic);
H. Whether the putative employers’ equipment and prem
ises are used;
I. Whether the putative employees had a business organi
zation that could shift from one worksite to another;
J. Whether the work required initiative, judgment, or fore
sight;
K. Whether the employee had an “opportunity for profit or
loss depending upon managerial skill”;
L. Whether there was permanence in the working relation
ship; and
M. Whether the services rendered was integral part of the
alleged employer’s business. Compl. Br. at 26.
App. 100
about to be put on LFN’s pay system. Compl. Br. at 2527.
Complainant notes that an actual violation of the
regulations is not required so long as he had a reason
able belief that the conduct amounted to a violation
that was likely to occur. Sylvester v. Parexel Inti, ARB
No. 07-123, ALT Nos. 2007-SOX-039, -042, slip op. at
14-15 (May 25,2011). And to hold that a whistleblower
must wait for a violation to occur to be protected from
retaliation would be counter to the purpose of the stat
ute designed to protect human lives from safety mis
steps and to protect those who air to avoid those
missteps. Compl. Br. at 28.
Because Complainant has proved that Respond
ents knew of his protected activity and fired him, in
part, because of that protected activity, he is entitled to
all compensation. Complainant seeks $80,000 in eco
nomic losses, loss of medical coverage, moving costs for
having to move from Washington State to New Mexico
to find work, and $160,000 in emotional damages.
Complainant argues the emotional damages request is
within the typical range for successful whistleblower
plaintiffs.58 Complainant described in detail the repu
tational harm and emotional damage his termination
58 Complainant cited to Vieques Air Link, Inc. v. U.S. Dep’t of
Labor, 437 F.2d 102, 110 (1st Cir. 2006)($50,000); Evans v. Miami
Valley Hospital, ARB Nos. 07-118, -121, ALJ No. 2006-AIR-22
(June 30, 2009)($100,000); and Hobby v. Ga. Power Co., ARB Nos.
98-166, -169, slip op. at 33 (Feb. 9, 2001), affd sub. nom., Georgia
Power Co. v. U.S. Dep’t of Labor, No. 01-10916 (11th Cir., Sept 30,
2002)(unpub.)($250,000).
App. 101
of employment caused him, and that the requests sum
is reasonable in light of the callous and retaliatory re
sponse by Respondent to Complainant’s good faith
complaints. Compl. Br. at 28-29.
Complainant does not allege a separate AIR 21 vi
olation by the blacklisting claim. Rather, the evidence
was offered as support citing to Ford v. Northwest Air
lines, Inc., 2002-AIR-21 (ALJ Oct. 18, 2002).59 Here,
Complainant presented evidence that Mr. Werner’s en
counter with Mr. Coon was in close proximity with Mr.
Coon’s recession of the offer of employment and no rea
sonable alternative explanation exists other than
blacklisting. Further, Mr. Werner’s testimony lacked
credibility on this point. Compl. Br. at 29-30.
In his reply brief, Complainant notes that Re
spondent does not deny that it fired him for reporting
potential flight risks. Instead, they second-guessed his
judgment and picked apart every single safety factor
as unproven or contingent. Yet if Complainant had the
authority to make a go/no-go decision and the risk as
sessment was not of great concern for Respondent, why
did they fire him for it? Complainant maintains the in
escapable answer is because Complainant is a whistle
blower. Complainant also notes that Respondent does
not dispute in its brief that it had no prior issues with
59 The Tribunal has reviewed this case and does not find it
persuasive in support of this proposition. In Ford, the AU Granted
Respondent’s Motion to Dismiss the case in part and ordered that
it be remanded to OSHA because OSHA did not investigate the
blacklisting alleged concluding that those acts were time barred.
Id., slip op., at 8.
App. 102
Complainant’s honesty or competence as a pilot before
firing him. Nor did they investigate the matter or even
speak with Complainant about the factors in his FRAT
before firing him. Respondent acknowledges that Com
plainant might have run into duty time issues and that
the assignment Complainant on July 9, 2014 was un
orthodox and atypical. Further, Respondent fails to
identify any motive for Complainant to fabricate a
safety issue to avoid flying. Complainant maintains
that Respondent’s witnesses lack credibility and a will
ingness to concoct whatever “facts” are necessary to
avoid liability. Reply Br. at 1
Complainant makes several rebuttal arguments.
He maintains that Respondent’s recitation of the facts
is not supported by the record, it misrepresented the
employment relationship between Respondent’s pilots
and LFN, and Respondent provided pretextual reasons
for Complainant’s termination of employment. Reply
Br. at 2-3. Complainant argues that the evidence con
tradicts Respondent’s version of the events of July 9,
2014 and that his safety communications to his em
ployer were protected activities. Reply Br. at 3-7. And
that it strains credulity for Respondent to now contend
that, even if Complainant’s communications were a
protected activity, he was fired for some other reason.
Reply Br. at 9-10. Finally, Respondent’s damages
should not be limited the self-serving testimony of Re
spondent’s management. Reply Br. at 11-12.
App. 103
B. Respondent’s Position
Respondent asserts that Complainant’s misrepre
sentations prior to July 9, 2014 and on that date were
not protected activity. The culminating event leading
to Complainant’s termination of employment was the
July 9, 2014 FRAT form. Complainant’s misrepresen
tations on that form do not involve a violation of a reg
ulation, order or standard relating to air carrier safety.
Furthermore, he did not have a good faith basis for
scores he entered on this form. Resp. Br. at 10.
Prior to even beginning his shift or filling out the
FRAT, Complainant informed Mr. Bower by e-mail that
the reposition assignment would be “a Medium to High
FRAT for me tonight.” JX 15. But the only assignment
Complainant had at that time from Mr. Bower was to
reposition the aircraft to Dallesport and return the fol
lowing morning. Further, at the time he sent this email, Complainant did not know that the incoming air
craft would be delayed or that he would not be able to
perform the reposition when he first came on shift, as
instructed by Mr. Bower. Therefore, Complainant can
not show that he had a reasonable basis to represent
that his FRAT score would be medium to high before
his shift. At the hearing, Complainant claimed that he
did not need to complete the FRAT to know the reposi
tioning flight would be a high risk flight. However, the
evidence at the hearing showed Complainant’s risk
evaluation was based on speculation and without con
sidering any of the specific factors on the FRAT. For
example, Complainant had weather data available to
him, and rather than relying on actual data, he
App. 104
speculated regarding a “[h]ostile nighttime opera
tional environment.” Resp. Br. at 11.
To justify his representations regarding risk, Com
plainant wanted his supervisors to believe the issues
outlined in his e-mail in response to Mr. Bower’s repo
sition assignment, he elevated his FRAT scores. Com
plainant did not even attempt to explain if he was
assigning some numerical values to the issues that he
raised. And even when he eventually completed his
FRAT, its total score was 60, which falls on the lower
end of medium, not a medium to high score he relayed.
Resp. Br. at 11-12.
Complainant provided shifting testimony about
his FRAT including when he completed the form. None
of his explanations was for the only assignment he had
been given by Mr. Bower. Complainant’s testimony
that the FRAT was what he believed he faced through
out his entire shift differs from his contemporaneous
representations to Mr. Bower on July 9. Compare Tr. at
834 with JX 16-1. Complainant also testified that his
FRAT represented the flight assignment to and from
Dallesport, as well as the flight to Aurora. But that ex
planation does not help explain the scores that he en
tered which pertain only to patient transports or
weather turndowns. Those factors would only be con
sidered or scores entered in the event that Complain
ant had received a patient transport request during his
shift, which he did not. Resp. Br. at 12.
Complainant’s e-mail response to Mr. Bower on
July 10 is also noteworthy for when he tried to defend
App. 105
his FRAT score he only referenced and attached a TAF
report for Dallesport. Clearly he was only considering
the Dallesport reposition requests when trying to con
vince his supervisors that his FRAT calculations were
genuine. This also shows that the alleged flight revi
sion to Aurora was just a post hoc explanation that is
not supported by the evidence. Even if one was to re
move the issue of Complainant’s credibility related to
the FRAT factors, Complainant did not complete the
form as he had been instructed to do, and had done be
fore July 9. Resp. Br. at 13.
Complainant’s explanation regarding why he en
tered a score on his FRAT for the category of new med
ical crew/pilot mix illustrates his lack of credibility and
the unreasonableness of his actions. Complainant tes
tified that he entered a score because he met a medical
crew at Boeing Field that he did not know and believed
that he could be working with him out of Dallesport.
Under this version of events, Complainant claimed he
intended his FRAT to include his entire shift, which
included potential and unknown flight assignments
that he could receive while at Dallesport. Complainant
later changed his testimony and took the position that
his FRAT did not include potential flights out of Dal
lesport. He then claimed that the helicopter pilot he
was taking to Aurora would have qualified as crew
member/medical crew member. Compare Tr. at 626-27
with Tr. at 829-31. The explanation was absurd and
contrary to any reasonable interpretation of the FRAT.
Resp. Br. at 13-14.
App. 106
Complaint provided an incoherent reason as to
why he entered a score for the FRAT form factor
“new/unfamiliar NAV/radio equipment installed with
past 3 months.” Complainant could only offer that it
was an “additional hazard to consider.” The problem
with this explanation is he flew the same aircraft dur
ing a mission in the dark the night prior yet no risk
score for this factor was entered. Complainant also ad
mitted that he did not have any reason to believe any
flights had been turned down for weather reasons, yet
he entered a score on the FRAT for this factor. Com
plainant’s explanation was that, even though he ex
pected the weather to be good, he still believed that
there would be a turn down or another base would be
busy with an assignment. Given the favorable weather
conditions, Complainant did not have a reasonable ba
sis to believe other crews would turn down a flight for
weather reasons. Resp. Br. at 14-15.
In his e-mail to Mr. Bower (JX 20), Complainant
attached a TAF. At the hearing, Complainant testified
that he looked at the Dallesport METAR report. Nei
ther report supports a FRAT entry of winds greater
than 30 knots or a wind gust factor of 15 knots or more
at Dallesport. Further, there were no reports of wind
shear. The evidence showed nothing particularly diffi
cult about the conditions at Dallesport on the evening
of July 9 to morning of July 10, 2014. Complainant’s
purported issues with wind and weather are not sup
ported by the evidence nor do they give him a reason
ably objective basis to report them as scores on the
FRAT. Finally, he entered a score on the FRAT for
App. 107
departing after midnight. However, even if Complain
ant believed that he had a revision of his assignment
to take the helicopter pilot to Aurora,60 he admitted
that they were boarding the aircraft prior to midnight
when he received a call to stand down. Resp. Br. at 1517.
Complainant did not engage in protected activity
with raising other issues besides the July 10, 2014 in
cident. Complainant had been hired to fly single pilot
medical transport missions. He knew that he might be
asked to fly in unfavorable conditions or fly in to unfa
miliar areas and airports, and it was common in the
Western United States to fly into airports with high
terrain in the vicinity. Complainant was never asked
or forced to make a hasty or rushed decision, but Re
spondent did expect a decision to be made in a reason
able time and raise reasonable issues. As a Part 135 air
carrier, Respondent’s pilots were permitted to work a
14-hour duty day if it is immediately preceded by and
followed by a rest period of at least 10 consecutive
hours. The evidence showed that Complainant was not
asked to do anything that would infringe on his rest
period or exceed his 14-hour duty time limit. In fact,
for Complainant’s July 9 shift, he did not have any as
signment. Additionally, Complainant’s arguments
about other pilots running out of duty time and thus
60 And if this was the case, and as Respondent also notes
(Resp. Br. at 13), it is curious that Complainant did not provide a
copy of Aurora’s TAF along with The Dalles TAF when he wrote
his e-mail to Mr. Bower. The Tribunal notes that TAFs are gener
ated for the Aurora, Oregon airport (UAO).
App. 108
his concern that he would time out are greatly inflated.
According to his duty logs, Complainant only had one
14-hour duty day in June 2014, despite his testimony
that he was working longer shifts. See RX 6-6. Resp. Br.
at 17-20.
Complainant’s citation to certain Federal Aviation
R
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