LexisNexis® CLE On-Demand features premium content from partners like American Law Institute Continuing Legal Education and Pozner & Dodd. Choose from a broad listing of topics suited for law firms, corporate legal departments, and government entities. Individual courses and subscriptions available.
On March 29, 2011, the Sixth Circuit decided Hoffman
v. Solis, Case No. 08-4128, a retaliation case brought after a pilot was
allegedly denied a promotion in response to his safety complaints. Mark Hoffman
claimed NetJets Aviation, Inc. violated the Wendell H. Ford Aviation Investment
and Reform Act for the 21st Century (AIR 21), 49 U.S.C. § 42121, by failing to
promote him to the position of initial operating experience instructor. Hoffman
claimed that the promotion was denied in retaliation for safety reports he made
to the Federal Aviation Administration (FAA). While the Court agreed that the
complaints were protected activities under AIR 21, NetJets proved that they
would have denied Hoffman's promotion even in the absence of his safety
Facts of the Case
Hoffman cited several incidents where he reported safety
concerns such as fuel leaks and worn nose avionics bay latches, but there was
no evidence that any retaliatory actions were taken after these reports. The
most significant issue occurred in mid-July 2004 when Hoffman refused to carry
non-essential personnel on a maintenance ferry permit flight because the pilots
were not part of Hoffman's crew. Hoffman contacted the local FAA office and was
given permission to ferry the crew. Hoffman was suspended for three days for
"unprofessional conduct" after this event but was awarded back pay
for the missed work after filing a grievance.
In May 2004, NetJets posted an announcement for
instructor openings, a position Hoffman had previously applied for over
twenty-five times. Thirty pilots applied and seven were hired; Hoffman was not
one of them. In August 2004, Hoffman filed a grievance with the Systems Board
of Adjustment (SBA), created by Congress to resolve minor disputes between
employers and their employees. The SBA found no violation of the collective
bargaining agreement, but recommended NetJets personally interview Hoffman for
the position. Although not required to, NetJets complied with SBA's
recommendation and the four-member interviewing panel unanimously agreed that
Hoffman should not be promoted.
Hoffman then filed a complaint with the Occupational
Safety and Health Administration (OSHA) alleging that NetJets violated AIR 21
by failing to promote him as retaliation for his prior safety complaints. After
investigating, OSHA denied Hoffman's complaint, and Hoffman requested a hearing
before an Administrative Law Judge (ALJ). The ALJ found that Hoffman engaged in
protected activities and that his denial of a promotion was an adverse action
under AIR 21, but NetJets established by clear and convincing evidence that it
would have denied Hoffman the instructor position even without Hoffman's
protected activity. On appeal, the Administrative Review Board (ARB) affirmed
the ALJ's decision. Hoffman then appealed to the Sixth Circuit.
What the Court Said
To establish an AIR 21 violation, Hoffman had to prove by
a preponderance of the evidence that he engaged in protected activity, suffered
an adverse action and that his protected activity was a contributing factor in
the adverse action. The burden then shifted to NetJets to prove by the stricter
clear and convincing standard that they would have taken the same action,
regardless of Hoffman's complaints. On appeal, Hoffman challenged the ALJ's
conclusion that NetJets met the clear and convincing standard.
Hoffman also argued that because NetJets had to meet the
clear and convincing standard at the ALJ level, judicial review by the ARB
should be conducted under the same standard, instead of the substantial
evidence standard used by reviewing courts under the Administrative Procedure
Act. The Sixth Circuit rejected Hoffman's argument, claiming that a deferential
standard of review to a finding reached under a stricter standard is routine.
In reviewing the ARB's conclusions, the Sixth Circuit
relied heavily on evidence that showed that all thirty candidates were evaluated
using the same three-part point system and Hoffman ranked in the bottom five as
well as on the fact that the interviewing panel's conclusion was unanimous and
this decision was recorded in Hoffman's file. NetJets also indicated that
Hoffman's lack of international flying experience was a key factor in his
denial. Further, several managers testified that Hoffman interviewed poorly and
declined to ask any questions on his own. The Sixth Circuit held that a
reasonable person could conclude from the record that Hoffman was denied the
position because of his faults as a candidate, not because of his protected
Recommendations For Employers
The court's decision underscores the importance of
keeping records - having a discrete, point-based system provided easy evidence
for the court to rely on when determining if Hoffman was indeed qualified for
the job. In addition to clear record-keeping procedures, employers should have
a compliance plan in place that allows top-level management to quickly learn of
complaints and to investigate and remediate any problems.
While employers can breathe a little easier after this
decision, it is also important to remember that almost twenty statutes now have
whistleblower and retaliation provisions, so employers should be aware of
rights afforded to employees under these statutes. With increased funding
allotted for OSHA to enforce these provisions, managers and supervisors need to
be properly trained to recognize protected activities and to react accordingly.
For more information regarding whistleblower laws and
regulations or assistance with drafting or revising whistleblower policies,
procedures and managerial training programs, please contact Mary E. Pivec at
202-434-4212 or email@example.com, Manesh K.
Rath at 202-434-4182 or firstname.lastname@example.org, or
Amy L. Blackwood at 202-434-4118 or email@example.com.
more information about LexisNexis products and solutions connect with us
through our corporate site.