Department of Labor: 03 074

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U.S. Department of Labor Administrative Review Board 200 Constitution Avenue, NW Washington, DC 20210 In the Matter of: JAN SVENDSEN, COMPLAINANT, v. AIR METHODS, INC., RESPONDENT. ARB CASE NO. 03-074 ALJ CASE NO. 02-AIR-16 DATE: August 26, 2004 BEFORE: Appearances: THE ADMINISTRATIVE REVIEW BOARD For the Complainant: Jan Svendsen, pro se, Moline, Illinois For the Respondent: Elizabeth J. McNamee, Esq., Davis, Graham & Stubbs LLP, Denver, Colorado FINAL DECISION AND ORDER Jan Svendsen file
  U.S. Department of Labor Administrative Review Board200 Constitution Avenue, NWWashington, DC 20210 USDOL/OALJ   R EPORTER P AGE 1 In the Matter of:JAN SVENDSEN, ARB CASE NO. 03-074COMPLAINANT, ALJ CASE NO. 02-AIR-16v. DATE: August 26, 2004AIR METHODS, INC.,RESPONDENT.BEFORE: THE ADMINISTRATIVE REVIEW BOARD   Appearances:  For the Complainant: Jan Svendsen,  pro se,    Moline, Illinois For the Respondent: Elizabeth J. McNamee, Esq.,  Davis, Graham & Stubbs LLP, Denver, Colorado FINAL DECISION AND ORDER Jan Svendsen filed a complaint under Section 519, the employee protectionprovision, of the Wendell H. Ford Aviation Investment and Reform Act for the 21stCentury (AIR21), 49 U.S.C.A. § 42121 (West 2003), alleging that Air Methods (AM)had terminated his employment as an air ambulance pilot on November 12, 2001, inviolation of AIR21. Specifically, Svendsen alleged that AM terminated his employmentbecause he had reported an air safety hazard to authorities on November 3, 2001. ADepartment of Labor Administrative Law Judge (ALJ) heard the case and in a February26, 2003 Recommended Decision and Order (R. D. & O.) found that Svendsen had failedto establish that air safety-related activity protected by AIR21 had contributed to AM’stermination decision. 1 Svendsen petitioned this Board for review and both parties filed 1   Although the ALJ signed the R. D. & O. on February 26, 2003, the Service Sheetindicates that the decision was issued on March 3, 2003. Pursuant to the interim finalregulations implementing AIR 21 at 29 C.F.R. Part 1979 that were in effect from April 1,2002, until the final regulations became effective March 21, 2003, “issuance of the ALJ’sdecision” triggered the period for appealing that decision to the Board. 29 C.F.R. § 1979.110(2002); see Notice of final rule, 29 C.F.R. Part 1979, 68 Fed. Reg. 14,100 (Mar. 21, 2003).   USDOL/OALJ   R EPORTER P AGE 2 briefs in support of their respective positions. 2 For the reasons set forth below, we adoptthe ALJ’s recommendation to deny the complaint. FACTUAL BACKGROUND The ALJ assiduously reviewed the evidence, carefully resolved any materialconflicts, and rendered the factual findings necessary to dispose of this AIR21 complaint.We provide the following factual background to focus our review of the ALJ’srecommended disposition.Svendsen worked for AM as an air ambulance pilot from July 27 throughNovember 12, 2001. Pursuant to a contractual agreement between AM and Flagstaff Medical Center, based in Flagstaff, Arizona, AM employed pilots to fly planes owned byGuardian Air, a Flagstaff Medical Center affiliate. Svendsen and the other AM airambulance pilots operated under a Federal Aviation Regulation Part 135 operationscertificate. Guardian Air employed the medical crews necessary to staff the airambulance flights and coordinated the dispatching of AM pilots. Svendsen flew a KingAir, two engine aircraft on assignments that srcinated at Parker Airport, in Parker,Arizona. The airport in Parker is a private airfield that the Colorado River Indian Tribesown and operate. It does not have a control tower and is not an official weather reportingstation. Svendsen was based in Parker along with at least two other AM pilots, includingthe AM base manager Mario Grajeda.As the base manager, Grajeda was responsible for the day-to-day operations at theParker base, for example airplane and equipment maintenance. Although the pilots therereported to Grajeda, he was not involved in disciplining those pilots. AM’s higher level 2   We reject AM’s contention that Svendsen’s petition for review is inadequate because29 C.F.R. § 1979.110(a) (2003) requires that the petition “specifically identify the findings,conclusions or orders to which exception is taken. Any exception not specifically urgedordinarily shall be deemed to have been waived by the parties.” AM relies on a provisioncontained in the final regulations implementing Section 519 of AIR21. Air Methods’ June29, 2004 Reply Brief at 4. That provision did not become effective until March 21, 2003, thedate the AIR21 final regulations were published in the Federal Register. Notice of final rule,68 Fed. Reg. at 14,105. The interim final regulations were in effect from April 1, 2002 untilMarch 21, 2003, and thus were in effect when Svendsen’s petition for review was filed onMarch 18, 2003. Notice of interim final rules, 67 Fed. Reg. 15,454 (Apr. 1, 2002); see 68Fed. Reg. 14,100. Section 1979.110 of the interim final regulations did not set anyrequirements for the contents of a petition filed with the Board. Notice of interim final rules,67 Fed. Reg. at 15,456; see 68 Fed. Reg. at 14,105. Acting  pro se, Svendsen filed a petitionon March 18, 2003, that identifies for appeal three issues that are key to the ALJ’srecommended decision. Although the contentions advanced in Svendsen’s two briefs focusprimarily on Svendsen’s view of the evidence and offer little legal argument assigning errorto the ALJ’s analysis, Svendsen has cited a number of issues for the Board’s consideration inits review of the R. D. & O. Furthermore, consistent with our practice, we have construedSvendsen’s  pro se briefs regarding the merits of his complaint liberally, within the context of the standard of review applicable to this appeal. See Young v. Schlumberger Oil Field Servs., ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 3 n.1 (ARB Feb. 28, 2003).   USDOL/OALJ   R EPORTER P AGE 3 managers made disciplinary decisions. The offices of those managers, including the chief pilot, Michael Wheeler, and the operations officers, Andy McJohnston and Jeff Freeman,were located in Denver, Colorado. AM employed about 170 pilots who were based atapproximately 30 locations. Grajeda did act as intermediary between higher level AMmanagers and the pilots working at Parker, including Svendsen.The pilots received their assignments from a dispatcher at Guardian Air. Eachpilot was on duty for twelve-hour shifts on five consecutive days followed by five daysoff. During on-duty hours, the AM pilots awaited assignments from the dispatcher at ahouse Guardian Air maintained as an operations base, a few miles from the ParkerAirport. Two flight nurses also worked on each air ambulance assignment, whichtypically involved transporting patients either from Parker or a nearby airport to Phoenix.The flight nurses, like the pilots, waited for assignments while on duty at the operationsbase house in Parker.The pilots and flight nurses worked under especially stressful conditions. Mostpatients were critically ill, and the air ambulance teams were required to be airbornewithin twenty minutes after receiving a dispatch call from Guardian Air. The intensity of the air ambulance assignments coupled with the long hours on duty at the Parkeroperations base required a commitment to professionalism and teamwork by both thepilot and the medical crews. AM emphasized this aspect of the air ambulance operationswith its pilots during their orientation and training. Although Mayo Aviation, AM’spredecessor contractor, had employed Svendsen, AM management required Svendsen toundergo approximately a month of orientation and training in June – July, 2001. At thattime, Svendsen was advised regarding AM policies and procedures related to wearinguniforms, handling equipment maintenance and the importance of professionalinteraction with other AM pilots, Guardian Air staff and other personnel while on duty.AM managers had reservations about Svendsen’s interpersonal skills and hiscommitment to AM administrative policies and procedures at the time Svendsen washired in July. AM managers received reports of deficiencies in these aspects of Svendsen’s performance beginning in August. The problems revolved primarily aroundSvendsen’s lack of effective interaction with Grajeda and Svendsen’s failure to complywith AM administrative policies. In addition, three significant concerns, each related to apattern of conduct on Svendsen’s part that had occurred over a period of months, reachedMcJohnston, AM’s chief operations officer, during the early part of November.Wheeler voiced the first concern. He had received a letter from Svendsen aboutrequests for reimbursement for expenses Svendsen had incurred for repairs and fuel forthe tug used at Parker to tow the aircraft from the hangar. Svendsen, contrary tocompany procedure, had bypassed Grajeda and had initially sent his request forreimbursement directly to McJohnston. In turn, McJohnston sent the paperwork back toGrajeda, who left a note for Svendsen pointing out his error. In the letter to Wheeler,which Svendsen mailed on November 3, Svendsen addressed problems he hadencountered with obtaining repairs to the tug, and he protested Grajeda’s suggestion thatSvendsen could have replaced a spark plug in the tug himself. Svendsen also stated thathe would not personally pay for any company expenses in the future. Wheeler wasannoyed by the tone of the letter and shared his concern with McJohnston, telling himthat Wheeler considered it to be insubordinate and unprofessional.   USDOL/OALJ   R EPORTER P AGE 4 The second concern that reached McJohnston in early November srcinated withRichard Titus, a flight paramedic, who complained about Svendsen to Jeanine Hanson,the Guardian Air program director. The paramedic had served as a flight nurse onassignments with Svendsen in the previous months and on November 8 expressedconcerns to Hanson about Svendsen’s conduct and appearance. Specifically, Titus toldHanson that Svendsen did not wear a uniform, that Svendsen often expressed himself inan angry or abrupt manner, and that Svendsen and another pilot repeatedly madedemeaning remarks about Grajeda and the Guardian Air operation. The paramedic saidthat Svendsen’s negative demeanor and unprofessional conduct made it difficult for theair ambulance teams to work together effectively. Hanson relayed these concerns toMcJohnston. A day or two after November 8, Titus also told Grajeda about making thecomplaint to Hanson. Grajeda discussed this report with Wheeler. Ultimately, Tituswrote a letter to Grajeda memorializing his report to Hanson.Balis Kelley, the manager of the Parker Airport, brought the third concern aboutSvendsen’s conduct to McJohnston’s attention. Kelley’s complaint resulted from hisNovember 3 discussion with Svendsen regarding a tribally-sponsored car race that wasbeing run from a race course adjacent to the airport and which was creating a dust cloud.Kelley reported that Svendsen objected in a “loud and belligerent” manner to the racebeing held near the airport. Kelley had been concerned on previous occasions thatSvendsen was overbearing in his interaction with airport employees. Kelley concludedhis complaint to AM headquarters about the November 3 confrontation with a requestthat Svendsen be reassigned to another airport unless his demeanor changed.In addition to discussing the dust cloud with Kelley on November 3, Svendsenreported it to the nearest flight service station, located in Prescott, Arizona. Svendsen didthis because, although he was able to take off safely, he believed the reduced visibilityposed a hazard for incoming aircraft at Parker. Because Parker was not an officialweather reporting station and also because the hazard was being produced by a car racenear the airport rather than by a source on the airport grounds, the Prescott Flight ServiceStation advised Svendsen that they could not electronically post a notice to airmen aboutthe reduced visibility. Prescott suggested that Svendsen report the situation to the localpolice instead, and Svendsen did so. The ALJ found that Svendsen’s reporting the dustcloud to these authorities was protected activity.On Friday, November 9, Grajeda advised Svendsen that he was scheduled to meetwith higher management at the AM offices in Denver on Monday, November 12.McJohnston conducted the November 12 meeting, with Freeman, Wheeler, and twomanagers from the human resources department – Kathleen Bailey and Mary Marley –also in attendance. McJohnston confronted Svendsen regarding Svendsen’s failure tocomply with AM policies and procedures, Svendsen’s conduct toward Grajeda, andSvendsen’s lack of interpersonal skills. At the close of the meeting, McJohnston advisedSvendsen that his employment was terminated. On December 12, 2001, Svendsen filedan AIR21 complaint, alleging that AM discharged him in retaliation for his reporting thevisibility hazard at Parker Airport on November 3.
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