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Pilot’s claims that FedEx violated whistleblower statute rejected


A pilot for Federal Express Corp. failed to show that the delivery company violated air carrier safety whistleblower protection laws.

In Estabrook v. Administrative Review Board, the 5th U.S. Circuit Court of Appeals on Tuesday unanimously denied the worker’s petition for review of the dismissal of his complaint.

Pilot Mark Estabrook worked for FedEx and on April 10, 2013, was scheduled to fly from Laredo, Texas, to Memphis, Tennessee. Because of severe weather, he notified the dispatcher that the flight time would be delayed, and believed after that conversation that he was to remain at his hotel until the weather cleared. However, he was subsequently investigated by FedEx for not being at the airport that day. Mr. Estabrook filed a complaint with the U.S. Occupational Safety and Health Administration alleging that he was pressured by FedEx to fly in unsafe conditions.

When the company’s investigation revealed that a misunderstanding with the dispatcher led to Mr. Estabrook’s behavior, no disciplinary action was taken against him and he withdrew the OSHA complaint.

On Aug. 3, 2013, Mr. Estabrook demanded a meeting with FedEx’s CEO over security concerns. A week later, he met with senior executives and asked that FedEx stop making flight- and package-tracking data available to the public for fear of its use by terrorists. He also stated that he feared a former colleague — who remains in prison for attempting to hijack a plane when he faced termination — had converted to Islam and “may be using a communication path to al Qaeda.”

After the meeting, he was grounded with full pay and ordered to pass a psychiatric evaluation before he could continue flying. After four months of dueling doctor’s opinions, he was returned to the skies. However, he filed another OSHA complaint alleging that he was retaliated against for his protected activity under air carrier whistleblower protection statutes.

The U.S. Department of Labor held that FedEx did not violate the statute. An administrative law judge found that Mr. Estabrook did participate in protected activities by refusing to fly in Texas and filing the OSHA complaint, and that the grounding and mandatory medical evaluation were unfavorable personnel actions. However, he held that Mr. Estabrook’s meeting with the executives in August was not protected activity, and that he was unable to connect his protected activities in April to the August personnel decisions, and dismissed his complaint. An administrative review board affirmed the decision and Estabrook filed a petition for review.

The circuit court denied the petition. The court noted that the Federal Aviation Administration — not FedEx — makes flight-tracking data available to the public and that Mr. Estabrook’s suggestions for improving security neither amounted to “wrongdoing” by FedEx, nor did his comments constitute protected activity because he was not “reporting a violation of FAA law or regulation.”

The court further held that Mr. Estabrook’s “unusual behavior,” which included demanding an audience with the CEO and commenting his former co-worker’s conversion motivated FedEx to ground the pilot and request a medical evaluation. 

The court found “little, if any, evidence” connecting his decision not to fly in April and the medical evaluation request in August, and that the investigation into the April event did not result from his decision not to fly, which may have been protected — but for his failure to arrive at the airport, an unprotected activity.






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