Comair pilot sues on safety, wins back job
By James Pilcher, Cincinnati.com
jpilcher@enquirer.com
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A federal Labor Department administrative judge has reinstated a Comair pilot fired for refusing to fly what he believed was an unsafe airplane in an unusual whistleblower lawsuit.

The successful suit by pilot Shane Sitts of Batavia is one of the only such suits ever to reach this level at Comair, and highlights the everyday tension between a pilot's authority to determine whether a plane is airworthy and an airline's mandate to keep passengers moving.

"Shane is a whistleblower in the truest sense of the word," said Sitts' lawyer, W. Kash Stilz Jr. of Covington. "He stood up for something he felt was wrong, and was vindicated in the end."

Comair officials declined comment. The Erlanger-based regional airline, a subsidiary of Delta Air Lines, has until the end of the day today to appeal the decision to an administrative review board, which oversees such whistleblower lawsuits.

Airline officials also declined to answer any questions about safety policies or procedures or whether the judge's decision would lead to a change in its policies.

In December 2007, Comair fired Sitts after he declined to fly a plane the previous month that had a broken power device that helps open and close the main cabin door. Such a malfunction requires the heavy door to be opened and closed by hand.

It was the third time in five years that Sitts had refused to fly for this reason, and he had been suspended for 30 days over a previous refusal. According to his testimony, it was also the fifth time in five years that he had seen the problem, which he said could lead to questions about integrity of the plane in flight since doors would bang heavily on the ramp area concrete when opened incorrectly. In addition, he said ground crews were continually endangered by the broken doors.

On July 31, administrative law judge Joseph E. Kane ruled that Sitts was within his rights to refuse the assignment for "reasonable safety concerns."

"Sitts adequately described his concern and reasonably objected to (Comair's) proposed solution," Kane wrote. "I further find that Sitts' refusal to fly meets all of the criteria for protected activity" under the law that allows whistleblower protection.

Kane reinstated Sitts with more than $125,000 in back pay, $25,000 in damages and ordered Comair to pay Sitts' legal fees.

It was one of the first such lawsuits at the company, and the first involving a pilot, according to officials with Comair's pilot union.

"This is huge not only for Shane, but for the entire pilot group," said Matthew Lamparter, chairman of the Comair branch of the Air Line Pilots Association. "We're quite frankly surprised it got as far as it did, and that concerns us.

"But it reinforces the notion that it is the pilot's ultimate authority," Lamparter said. "The company shouldn't be questioning the captain's decision; he's flying the airplane - they're not. Throughout the industry, we've noticed over the years that there has been an ongoing effort to take that authority away ... and that is the scary part of this."

Citing the potential for a Comair appeal, Sitts declined comment through his lawyer.

But in his testimony, Sitts said he had seen broken doors nearly hit ground crews in the head, while other doors bounced several times on concrete because of broken door motors.

He also cited an incident in October 2005, when he was told to fly an empty plane from Boston to Cincinnati at low altitude without pressurizing the cabin after its door had been damaged when it hit the concrete. Sitts testified he believed that only tape was holding the door shut for that flight.

FAA officials said the door part in question (called the Passenger Door Power Assist Motor) is on the "master minimum equipment list," or the list of equipment that needs to work before the plane can take off.

But operators have the right to fly the plane "provided the operator verifies that the door can be opened and closed manually," FAA spokesman Ian Gregor said in an e-mail.

Gregor added that the minimum equipment list (compiled by a panel of airline, aircraft makers and regulators) "advises that people should stand clear of a door with an inoperative (power device) because it opens faster than usual."

When asked if the FAA would make it mandatory that the device work in all situations, Gregor said he was "unaware of any plans to remove the conditional allowance" that allows the planes to be flown with a broken door motor.

He said that if the door had hit the ground, damaged the plane and wouldn't properly close "would obviously be a situation where the carrier's maintenance personnel would have to examine the door and determine if it was safe to operate the aircraft."

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