Captain-in-training Colin DeBuse, who was flying as an observer with Corr Flight S. (dba Nicholas Air) captain Stacey Lee in October 2019, reported that Lee “engaged in numerous safety violations,” according to the results of a petition for review before the U.S. Court of Appeals for the Fifth Circuit. After being terminated from his job, DeBuse filed a whistleblower complaint with the Occupational Safety and Health Administration (OSHA) that was initially dismissed, but then upheld on appeal. Corr Flight petitioned for the case to be reviewed, and ultimately the Court of Appeals denied the petition.
Corr Flight hired DeBuse on Oct. 15, 2018, and placed him in an observer role, where he was to fly and observe operations until becoming qualified as a second-in-command or pilot-in-command. He traveled as an observer—technically a passenger on the airplanes because people in that role aren’t allowed to perform any flight duties—during October 2019 with Lee. According to the Fifth Circuit document, “During those flights, DeBuse observed numerous safety issues: Lee did not record mechanical issues in the aircraft’s logbook, Lee left DeBuse alone in the cockpit, and Lee did not ensure that a member of the crew was wearing an oxygen mask.”
The situation escalated when DeBuse telephoned flight dispatcher Cody Shears on October 16. In a “profanity-laced phone call…DeBuse expressed his personal displeasure with Lee.” Then on October 19, he told chief pilot Nick James about “his safety concern with Lee leaving the flight deck.”
When DeBuse told company management that he would not fly with Lee because of these “safety violations,” managers told him “they had discussed the safety violation with Lee” and instructed DeBuse to either train with Lee or resign. “DeBuse refused to do either,” according to the court.
Corr Flight managers decided to suspend DeBuse without pay but offered him the opportunity to train at a third-party simulator provider. The offer included a training agreement and a deadline of November 27. DeBuse claimed that other Corr Flight pilots who were training in-house did not have to sign such agreements. “DeBuse did not accept or reject the offer because he considered it an unfair attempt to force him out of Corr Flight,” according to the Fifth Circuit. “On December 10, Corr Flight terminated DeBuse.”
After DeBuse filed the whistleblower complaint with OSHA, the agency dismissed it because it “found that DeBuse’s refusal to accept his training assignment was not a protected activity.” DeBuse then appealed that decision to the Department of Labor Office of Administrative Law Judges, where an administrative law judge (ALJ) found that DeBuse’s report of Lee’s safety violation was protected activity that contributed to his unpaid leave and awarded back pay, post-judgment interest, and attorney’s fees and costs. After a limited remand from the Administrative Review Board (ARB), the ALJ further found that “DeBuse’s refusal to fly with Lee constituted protected activity that was a contributing factor to his unpaid leave” and reaffirmed the award order.
Corr Flight appealed to the ARB, which affirmed the ALJ’s order. The ARB also denied Corr Flight’s motion to reconsider, so the company then filed the petition for review, according to the Fifth Circuit.
While Corr Flight’s petition for review did not challenge “the ALJ’s determination that DeBuse’s report of Lee’s safety violation to Corr Flight management was a protected activity,” the company did challenge “the second justification for the ALJ’s order: refusal to fly.”
According to the Fifth Circuit, “Instead, because Corr Flight erroneously believed ‘it is undisputed that [DeBuse’s] report did not lead to [his] suspension’…‘that is not the question presented.’ Appellants must raise issues in their briefs to preserve them. Corr Flight has forfeited on petition for review the ALJ’s determination that DeBuse’s report constituted protected activity.
“Accordingly, one justification for the ALJ’s order remains undisturbed and independently allows the ALJ’s order to stand. We deny the petition for review of the ARB’s order on that basis and do not address the failure-to-train rationale.”
In this article
More In Charter & Fractional
