• DOL Finds AIR21 Complaint Filed 16 Months after Termination is Untimely
  • July 26, 2010
  • Law Firm: Ford Harrison LLP - Atlanta Office
  • In a case handled by Ford & Harrison attorneys, the U.S. Department of Labor's Office of Administrative Law Judges (OALJ) recently upheld the dismissal of a pilot's AIR21 whistleblower claim. The OALJ held that the claim, which was filed more than 16 months after the pilot's termination from a regional carrier, was untimely. In reaching this decision, the OALJ held that the time frame for the complainant to file his AIR21 complaint began running on the date the adverse employment decision (his termination) was made and communicated to him, not on the date his union grievance was decided. The OALJ also held that the complainant failed to demonstrate that the time period for filing his AIR21 claim should be tolled.

    The complainant in this case was employed by a regional carrier as a first officer. He was discharged in April 2008, after failing in his second attempt to upgrade to captain. According to the complainant, he filed a charge with the Federal Aviation Administration's (FAA) Office of Civil Rights in May 2008. Additionally, the union appealed the complainant's discharge under the CBA. In June 2009, the System Board of Adjustment upheld the complainant's discharge. In August 2009, the complainant filed an AIR21 whistleblower claim with OSHA, which the agency subsequently dismissed as untimely. The complainant appealed the dismissal of his AIR21 claim to the OALJ.

    AIR21 protects employees of air carriers from retaliation for having disclosed information to their employer or to the government concerning "any violation or alleged violation of any order, regulation or standard of the Federal Aviation Administration or any other provision of Federal law relating to air carrier safety..." An AIR21 complaint must be filed within 90 days of the date on which the alleged violation occurs. The filing period commences when the allegedly discriminatory decision has been made and communicated to the complainant.

    In finding that the complainant should have filed his whistleblower complaint within 90 days of when he received notice of his termination, the OALJ rejected the complainant's argument that the filing period did not begin until the conclusion of his grievance, noting that "it is well established that the filing of a grievance does not operate to toll the limitations period for filing a complaint under the whistleblower statutes." Additionally, the OALJ noted that filing a grievance under a CBA after a termination "does not act as a continuation of the adverse action."

    The OALJ also rejected the complainant's argument that the period for filing his AIR21 complaint should be tolled. The filing period for a whistleblower complaint will be tolled only when (1) the employer has actively concealed or misled the employee; (2) the employee was prevented from asserting his right in some extraordinary way; or (3) the employee raised the precise statutory claim in the wrong forum.

    Here, the OALJ held that there was no evidence that the carrier actively concealed or misled the complainant. Although the complainant alleged that attorneys told him "off the record" that he needed to exhaust his administrative remedies before filing his whistleblower complaint, he presented no evidence that these conversations actually occurred or that any of these attorneys were employed by or represented the carrier. Further, the OALJ determined that the complainant was not prevented from asserting his right in any extraordinary way, such as because of his own mental illness or that of his attorney. Finally, the OALJ held that the complainant did not raise this precise statutory claim in the wrong forum, since there was no evidence that either his EEOC charge or union grievance "evinced an intent to pursue an AIR21 claim."