NOW confirmed, the Administrator is likely to hear a lot of Whistles—ready Dr. Foushee?

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Senators question FAA nominee on whistleblower retaliation lawsuit

2006 T&I hearing undermined FAA’s ability to manage

Senators Blumenthal and Cantwell cite Dickson Delta Whistleblower problems

Unhappy FAA field staff will invoke Whistleblower process to object to new policies

The FAA has been subject to some enormous challenges and Acting Administrator Elwell has done a fine job [THANKS]. The President somewhat belatedly nominated former Delta Captain and Senior Vice President Stephen Dickson. By all accounts his experience and resume made him well suited for the position. As is to-be-expected in these highly partisan times, two Democrats, however, unearthed a substantive concern[1]—the Delta executive had been involved in a whistleblower case:

As CNN reported earlier this month, FAA nominee Stephen Dickson did not disclose his involvement in a whistleblower retaliation case filed against Delta Air Lines. Dickson was senior vice president of flight operations at Delta when a pilot reported safety concerns to him. In a lawsuit, the pilot said that instead of those concerns being taken seriously, she was sent for a psychiatric evaluation and grounded for more than a year.

 

 

 

 

 

 

 

 

 

In documents released Tuesday, Sen. Richard Blumenthal described the issue as “potentially disqualifying.”

In written follow-up questions sent to Dickson after his confirmation hearing in May, the Connecticut Democrat said, “Given the current climate of safety oversight at the Federal Aviation Administration (FAA), I find this omission deeply concerning and potentially disqualifying.”

Sen. Maria Cantwell, a Washington state Democrat who’s the ranking member of the Senate Committee on Commerce, Science and Transportation, described the nondisclosure as a “failure” and expressed concern about the underlying allegations in the case.

“Further, the facts related to the whistleblower claim are troublesome and suggest at least the possibility that the claim of retaliation has merit,” the Washington state Democrat wrote.

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From another report:

A few examples of the disturbing flight operations issues identified by Petitt, and Dickson’s inaction, include the following:

*          A pilot describing the deployment of unorthodox landing procedures to land the aircraft and concluding “we don’t know why and just lucked out.  Any idea?”  (Safety Report at 6).  Captain Dickson agreed that this pilot communication conveyed a “lack of operational control” and “helplessness.”  (Dickson Dep. at 117).  Dickson further testified that he hoped that Delta “would have followed upon it with the normal process,” but conceded that he did not know whether Delta investigated this issue and that he did not ask Ms. Petitt who the pilot was.  (Dickson Dep. at 118-19).

*          A pilot reporting that, during takeoff, “Alpha floor suspected but not observed,” with the pilot concluding: “Not sure what happened….”  (Safety Report at 6).  Captain Dickson agreed that the report was a source of concern insofar as it indicated that the pilot might execute an “inappropriate recovery procedure.”  (Dickson Dep. at 120-21).  Dickson concurred that the incident possibly reflected a need for pilot refresher training.  (Id. at 121-22).  However, Dickson did not ask Petitt to identify the pilot in question.  (Id. at 122).

*      “During OE [a training operating experience] the wheels fell of when on my first leg [Check Airman] Albain told me to go vertical speed on the descent into DTW.  I was high and that just made it worse.  WTF?”  (Petitt Decl. B at DA-00013). Dickson testified that vertical speed was “not typically a mode” that would be deployed under the described circumstances and agreed that the activation of vertical speed “could lead to an unstable approach” and “overshooting the runway or missing an altitude restriction.”  (Dickson Dep. at 129-30).  According to Dickson, Albain’s actions during OE training event “may have been a poor instructional technique or an ill-timed directive….”  (Dickson Dep. at 132).

***

The Chairman of the Senate Commerce Committee Roger Wicker, R-Miss declared that

“After Mr. Dickson’s hearing, new information came to the committee’s attention that involved employees reporting possible safety violations at Mr. Dickson’s former employer while he was serving as a senior vice president. The committee has since conducted an extensive review, including multiple follow-up conversations and meetings with Mr. Dickson. We have studied hundreds of pages of legal documents. It is clear that Mr. Dickson was not a named party in any of these matters and was not personally alleged to have retaliated against any of his fellow employees who raised safety concerns.”

Two Senators questioning Dickson’s willingness or ability to respond to whistleblowers’ complaint (more precisely the existence of two cases in which he was involved to whatever degree) will set the stage for his five year term at the FAA.

Whistleblowing at the FAA has not been more virulent than other agencies. However, in part due to history, it is difficult to differentiate between a valid complaint and a mechanism to disagree with a policy determination made by a manager within process with which the subordinate may disagree. This problem has existed for a while, but well-intended Congressional intervention exacerbated the inability of management to implement policies. Here is an earlier description of this incident:

In 2008 the House of Representatives, Committee on Transportation & Infrastructure Oversight and Investigations Hearing held hearing entitled “Critical Lapses in FAA Safety Oversight of Airlines: Abuses of Regulatory ‘Partnership Programs.” Most of the Members took the position that the first level FAA inspectors were right and their managers were wrong. Perhaps because the manager was removed, the field was empowered to ignore and occasionally contradict the guidance of their local supervisors and managers as well as the chain of command up to the Associate Administrator for Flight Safety. The consequence of this highly visible reprimand by the Members was an institutional inability to issue national policies.

There are a number of recent policy initiatives which the field opposes– SMS, Compliance v. Enforcement, the new Part 23 and Reorganization of AIR, Reorganization of Flight Standards, FAR Consistency (RCCB) and a number of other changes in the way that the FAA does business. The opposition to these substantive changes, which management has implemented in order to meet its mission, has been vocal and politically astute in expressing the disagreement.

These persistent objectors diminish the ability of field office managers to meet their assignments. The resistance sometimes forces a manager-employee dispute, which can result in discipline actions.

Since the 2008 hearings, these confrontations have tended to become whistleblower cases. These knowledgeable employees express their discontent in terms of management failing in some safety function.

The staff director for the  2008 T&I hearing became the FAA Director of the Office of Audit and Evaluation (AAE), Dr. H. Clayton Foushee. His biography and job description are most informative:

He assumed this role on June 20, 2010, and later, in compliance with the FAA Modernization and Reform Act of 2012 (Public Law 112-95), was appointed to a 5-year term by the Secretary of Transportation on September 11, 2012.

AAE is an independent staff office reporting to the Administrator. Its primary mission is to serve as an objective venue for the oversight and evaluation of all FAA safety programs, policies, and regulatory compliance, thereby avoiding conflicts of interest by providing independent oversight. AAE manages the Federal Whistleblower Protection Program for the agency. It serves as the FAA liaison to the Department of Transportation, Office of Inspector General, and the Government Accountability Office and manages FAA responses to external audits and investigations. It is also the investigative unit for the handling of referrals from the U. S. Office of Special Counsel. AAE operates the FAA internal and external hotlines.

Foushee has extensive government, corporate, and airline experience. He served as lead investigator for the House Committee on Transportation and Infrastructure (T&I) under Chairman James L. Oberstar immediately prior to joining the FAA. Prior to that, he was a consultant on aviation safety and operations, and he held executive positions at Northwest Airlines as the Vice President of Flight Operations and the Vice President of Regulatory Affairs. Earlier, he was Chief Scientific and Technical Advisor at the FAA and a Principal Scientist at the National Aeronautics and Space Administration.

His academic achievements include a B.A. from Duke University and a Ph.D. in Social Psychology from the University of Texas.

Especially given the Blumenthal and Cantwell declarations, the whistleblower process is likely to be a more common way to express dissension and will receive high profile status. Foushee reports directly to the Administrator and he will likely spend a lot of time with Dickson, if confirmed.



 

[1] In contrast, Schumer/Gillibrand’s Required Commit Of Dickson Is Not ADVICE And CONSENT; More Like COMMAND And CONTROL which had nothing to do with the candidate’s qualifications.

 

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