ALJ finds that Delta retaliated against a safety whistleblower

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DL pilot presented senior safety management with a critical safety report

Mandatory psychiatric evaluation led to grounding

ALJ found the action to be retaliatory

The Order must be sent to all DL pilots

An Administrative Law Judge has issued a final decision finding Delta Air Lines, Captains Dickson and Graham, among others, “engaged in an adverse employment action with discriminatory intent…Accordingly, Complainant, Karlene Petitt PhD, MBA, MHS[1],  has prevailed in her claim and is entitled to relief. The facts[2], on which this decision is based, the complainant, an experienced pilot with a PHD from Embry-Riddle, submitted a 46 page Safety Report which documented what deficiencies she observed, seven major problems. [The below article documents the story of this 6 year case.]

Though a meeting was held with the airline’s top two safety officers, the company took the extraordinary step of referring the Petitioner to a psychiatrist for examination. This evaluation “found” the pilot to be suffering from a bipolar condition and “was unfit to fly. The ALJ characterized Delta’s action as “having used a compulsory psychiatric examination as a ‘weapon’ against Dr. Karlene Petitt after she raised safety issues related to the airline’s flight safety.”

Back in 2000, Congress enacted the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21) honoring the former Chairman of the Senate Commerce Committee. Included in the bill was a provision giving to the Department of Labor the authority to determine whether an airline had disciplined a “whistleblower” in retaliation to raising safety concerns. Sanctions can be assessed if the finding of abuse is made.

DOL is THE expert on labor relations and the FAA knows what valid safety issues are. This bifurcation of authority could result in a retaliation determination and a judgment that the complaint was invalid. This case shows that these worries do not necessarily lead to inappropriate decisions.

What is tricky here is that at the time of the DOL judgment, one of the respondents, DL Captain, then FAA Administrator, was the head of the safety agency. Questions during his Senate confirmation hearings and subsequent news reports highlighted this conundrum. The conflict did not occur because on March 31,2022 Administrator Dickson became Citizen Dickson.

Dickson resignation letter


Judge finds Delta Air Lines liable for retaliation against female pilot whistleblower

Delta Airlines Silenced Pilot for 6 Years Using Psycho Terror[3]

In a [114 page well-documented] decision dated December 21, 2020, federal Administrative Law Judge Scott R. Morris found Delta Air Lines, Inc. guilty of having used a compulsory psychiatric examination as a “weapon” against Dr. Karlene Petitt after she raised safety issues related to the airline’s flight operations.  

Dr. Petitt has been a pilot for over forty years, has a doctorate in Aviation Safety from Embry-Riddle, and currently flies the Airbus A350.

On January 28, 2016, she submitted a 43-page safety report Delta Senior Vice President of Flight Steven Dickson (currently[4] serving as the Trump administration’s FAA Administrator) and Vice President of Flying Operations Jim Graham (currently serve as the CEO of Delta subsidiary Endeavor Air).  The report raised issues concerning:

pilot fatigue,

pilot training,

pilot training records,

and

Delta’s failure to properly maintain its FAA-mandated Safety Management Systems (SMS) program.

While Judge Morris characterized Dr. Petitt’s stated safety concerns as “prudent and reasonable,” he found that Captain Graham viewed her “tenacity in seeking clarification about her stated safety concerns as somehow problematic.”

 

Graham subsequently ordered Dr. Petitt to submit to psychiatric examination, a decision approved by Stephen Dickson.  Prompted by its legal counsel Chris Puckett, Delta selected Dr.  David B. Altman as the examiner, whom the judge characterized as “merely a tool used by Captain Graham to effectuate a management objective.”  [Decision at 97].

 

In a consent order dated August 24, 2020, Dr. Altman agreed to be placed on permanent inactive status as a part of a settlement of an action brought by the Illinois Department of Financial and Professional Regulation to revoke or suspend his license, or otherwise subject him to discipline.  [Attachment B and C].  Altman received over $73,000 for his psychiatric report and relied on Dr. Petitt’s safety-related communications, provided to him by Delta, to diagnose her with “mania” and “grandiosity.”  [Decision at 54-55, 57].  Altman testified that his adverse diagnosis was also driven in part by Dr. Petitt’s ability to raise children, assist her husband with his business, and attend night school, which he described as “well beyond what any woman I’ve ever met could do.”  [Decision at 56].

 

Altman’s diagnosis was subsequently rejected by both the Mayo Clinic and a third “tie-breaker” psychiatrist; however, the process dragged out over 21 months during which “her very career hanged in balance.”  [Decision at 80].  Judge Morris awarded Dr. Petitt compensatory damages of $500,000 – five times the highest previously recorded award under the whistleblower statute – in recognition of the “severe emotional toll this placed on [Dr. Petitt’s] wellbeing.”  [Decision at 80].

As Judge Morris held:  it is improper for [Delta] to weaponize this process for the purposes of obtaining blind compliance by its pilots due to fear that [Delta] can ruin their career by such cavalier use of this tool of last resort.”  [Decision at 98].  Judge Morris quoted findings of Dr. Steinkraus[5] of the Mayo Clinic with respect to the diagnosis of Dr. Petitt:

“This has been a puzzle for our group – the evidence does not support presence of a psychiatric diagnosis but does support an organizational/corporate effort to remove this pilot from the rolls.  … years ago in the military, it was not unusual for female pilots and air crew to be the target for such an effort.”

The judge concluded:  “The evidence of record substantiates Dr. Steinkraus’ take on the situation.”  [Id.].

Delta’s treatment of Dr. Petitt became an issue in the context of FAA Administrator Stephen Dickson’s appointment process due to his failure to disclose to the Senate Commerce Committee his approval of Graham’s psychiatric directive or the fact that he had been subject to a deposition of several hours.  The judge made the following observations concerning Captain Dickson’s conduct:

“The Tribunal finds less than credible Captain Dickson’s deposition testimony as it found many of his responses evasive …  His testimony was of value in understanding the leadership culture at [Delta] and its understanding (or lack thereof) of [Delta’s] management’s role in its safety management program.  His emails make it clear that Respondent’s much touted ‘open door policy’ was not as opened as portrayed.”

Asked to comment on the case, Dr. Petitt’s legal counsel, Lee Seham, stated:

“What I find both stupefying and worrisome is that, in all this time, Delta has never apologized to Dr. Petitt – even after Dr. Altman’s diagnosis was discredited.  Worrisome because those responsible for this injustice remain in positions of authority.  In my view, in the absence of some intense introspection and accountability, Delta’s flight operations will continue to be compromised.  Safety reporting has to be cultivated, not suppressed.”

 

…………….

In its Decision and Order Granting Relief dated December 21, 2020 (D&O), the Tribunal ordered the Respondent, inter alia, to deliver the Tribunal’s decision to its pilots electronically and to post the decision in the workplace both in the interest of the public safety and to mitigate the damage inflicted on Ms. Petitt’s professional reputation, which Respondent had “soiled – perhaps permanently.”  With respect to the adverse public safety impact arising from the carrier’s treatment of Ms. Petitt, a letter dated April 15, 2022, from the Air Line Pilots Association (ALPA) Chairman of the Delta Master Executive Council “insists Delta take immediate remedial steps so that we may hopefully return to the industry-leading safety culture that once existed.”  (Seham Decl. Ex. A).  Nonetheless, to date, Delta has declined to implement the delivery/posting obligation mandated by the Tribunal.

As the Administrative Review Board noted in its decision of March 29, 2022, affirming the Respondent’s liability in this matter, Delta did not appeal the publication/posting component of the Tribunal’s order and, therefore, the Respondent has forfeited any further right of appeal.  In the meantime, Ms. Petitt has suffered continuing damage to her reputation and Delta has ratified the unlawful retaliation of its management employees by declining to take any remedial action and even promoting Jim Graham, one of the primary perpetrators, to the position of Chief Executive Order of Endeavor Airlines.

 

Quote from the ALJ’s decision about a meeting among Dr. Petite, Capt. Dickson and Captain Graham.

 

The January 28, 2016 Meeting On January 28, 2016, Complainant had a meeting with Captain Dickson and Captain Graham Up to that point, Captain Graham was not aware of any pilot performance issues in her work-history…. Complainant described the meeting as initially combative. ..Shortly after the meeting began, Captain Graham told Complainant that if she had a problem, to call her chief pilot. Captain Dickson stated during the meeting, “[s]ome people like to sit in the back of the room and throw spit wads.” .., the safety and security committee, and in his role as the CEO, he is the safety leader of the company… Complainant testified that at the end of this meeting she told  Captain Dickson and Captain Graham then proceeded to tell Complainant what they were doing with the company and where it was going. At some point a secretary came in and told Captain Dickson and Captain Graham that the board room was filling and their meeting there was about to begin. Complainant asked about her meeting, which was supposed to last 90 minutes and Captain Graham responded that they did not need that much time. She pulled out her reports, handed the reports to them and said “Yes, we do” and telling them that the company had a serious problem, conveying several issues. Captain Graham and Captain Dickson were taken aback. The meeting lasted another 20 minutes so Complainant could explain the contents of her reports. Captain Graham agreed that Complainant walked them through her report with particular detail in certain areas… During the meeting Captain Graham concluded that “we have to investigate everything in this report.”During the meeting Captain Graham found Complainant credible and found her cognitive abilities were in no way impaired Towards the end of the meeting either Captain Dickson or Graham stated, “[m]aybe we should make [Complainant] part of the Ambassador Program” and the other said “[w]e should make her an instructor.”…. At the end of the meeting Captain Graham thanked Complainant for her report and said that he would “read the report tonight, I’ll get back to you.” …However, Complainant believed that they were not going to do anything with her report. …They also invited her to present her report to a larger group of Respondent’s safety-employees….

[1]Dr. Petite CV

[2] The decision is the only basis for the conclusions made and actions taken. No independent review of the record has been performed.

[3] Word choice of  Juergen T Steinmetz quoting from Administrative Law Judge at Social Security Administration’s decision

[4] Resigned 03/31/2022)

[5]  …aeromedical evacuation, cognitive function in aerospace settings, the aging aviator, chronic illnesses in flyers such as diabetes and osteoporosis, and effects of altitude on patients and flyers. Dr. Steinkraus also has been active in educational research, including the use of simulation. Emeritus, Division of Preventive, Occupational and Aerospace Medicine, Department of Internal Medicine; Assistant Professor of Preventive Medicine; Chief Resident USAF School of Aerospace Medicine; Resident USAF School of Aerospace Medicine ; MPH College of Public Health, University of Iowa; Resident Department of Family Practice, University of Iowa Hospitals and Clinics; MD Medical College of Virginia; BA – Biology Cornell College

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