the morning in may please the court my name is don mind and i represent continental airlines the petitioner in this pill attending the argument today with me is captain andy joseph seated to your far left in the front row as you know from the briefings of labor's administrative review board held that captain joseph punished captain loader because mr lugar supposedly reported a violation of aviation safety regulations continental airlines strongly disagrees with that finding  disagrees with the analysis that the department of labor used to disagrees with the way the department of labor applied the law and disagrees with the findings of fact is being supported by substantial evidence as primary objective today is to protect and preserve a procedure that the company uses and has long used and that many entities and safety related businesses use to protect safety and run efficiently and reliability wrote reliability reliably excuse me that procedure requires coordination communication and open mindedness continental as an airline has multiple departments that support flight operations those departments are staffed with experts in their fields they are staffed with experts in maintenance in coordination in flight operations inside efficiency continental has to consistently apply that procedure to make sure that flight operations remain safe any fish and what captain looter did in this case was to not follow that policy the policy is pretty simple if a pilot has a question if an anomaly arises during flight operations the pilot is supposed to contact the coordination center as the name implies that center is there to coordinate the captain on their prying the i'm in charge of safety for that are blind the regulations say that the captain is the final arbiter of safety ok the procedures and policies say well they said that as well they also say that pilots are expected consistently to use sound judgment in their decision making what happened here is that kept a looter had a gut instinct  gut instinct may have been reasonable he heard some things about prior turbulence he needed to coordinate the only way that continental can consistently run its operation safely safely and effectively is a people talk out issues that arise in each case if that policy is consistently applied the best decision will be made i don't think there's any question here that kept a looter did not comply with those responsibilities first responsibilities at this in the record yes the particularly the flight operations manual covers these things when the power to disagreed with somebody else's decision on how safe it is to take off airplane done the fact that the or give him the final word let me put it this way he wanted the final word to be his gut instinct that saying he wanted the final word to be what his gut instinct was it was fine for him to have a turbulence then he took what we would say is the easy way out he said ok let's just do an inspection he didn't try to coordinate any leave it was quite as flippant as you're making a council he was told by a pilot from the preceding flight the turbulence who sold it almost tore the wings off now maybe that's hyperbole and about the the radar going into pink or something about indicating severe term turbulence so it i just think you're making off you're putting a gloss on it that is not a fair representation of the record i don't intend to suggest and i apologize if i did that i was being flippant about this there is a chronology if there is a timeline as to that happened and i'm simply repeating the facts that he had this immediate reaction the procedure that calls for discussion the he is the ultimate arbiter of safety and if after the discussion he still felt the right thing to do was to have an inspection he would have had an inspection the inspection would have been done and nothing would have happened we wouldn't even be here today that so the final all he was being admonished for in the warning letter place you need to participate in a process that process is critical and if the department of labor's decision in this case stands continental management and again these are pilots too they understand turbulence they understand safety they're not flippant about safety  if the department of labor's decision stands how could continental have addressed what they thought truly believed not just thought truly believed was an improper set of circumstances actions by captain lou they could have said g indicate that up to the mayor was the pilot in command in the final arbiter of safety on the flight from the callen to houston if in his judgment and he is not only experienced pilot but an airframe and powerplant mechanic who knows the airplane quite well if in his judgment again the final arbiter there was severe turbulence he would write it up in houston when he got there no reason for him not to write it up he had plenty of time to have an inspection there he was taking the flight they had that that we knew it had been read that he knew the captain obviously didn't he had they had a disagreement between the two captains about what it was severe turbulence and and later knew that the previous captain didn't think it was i mean so what we knew about that information later assume there had been severe turbulence nobody nobody except him used that term nobody said there was severe turbulence he assumed it and when he said there was a pink pink turbulence they said there was fake severe turbulence and again where we fly on planes to us turbulence is even a jolt is just comforting to pilots there may be more concerned about whether they are they're used to turbulence they know they know the plane is engineer very regularly to withstand these forces and all of this was presented at the administrative hearing yes i mean alex know that that they know this and the other you know this is all in the record as you've already said it judged innes you know i'm not sure about the engineering part of it well rb and that's where all of this should have been developed well it was developed that captain there was experienced and understood how aircrafts work and decided he made the judgment which again we are continental management was entitled to respect that there was no severe turbulence and no inspection was the captain looter in time off under the operations manual to disagree with the previous bomber i mean was he in time to do that in the end he was as i said before if at the end of a reasonable coordination and discussion his decision was well i still think an inspection is needed and inspection would have been completed and again we wouldn't be here today the problem go ahead you know you're going to get the problem is he truncated the process and the management's response to that was very reasonable it said this it said that was supposed to contact these systems operation coronation center he didn't do that they called him and they started talking to him and he hung up they called him back and his first officer first officer testified that looters conduct on the phone to the assistant chief pilot was absolutely disrespectful again if the department of labor prevails in this case management could have done nothing at all to tell captain lugar next time you could do this better that's what we're trying to protect here is the process that the the company has in place and that process if reliably and consistently applied will reach the best results end i know it's of concern to the court that he is the final arbiter of safety and i'm not saying he isn't but he also had the responsibility to  cooperate in the process in the flight operations manual which was approved by the f a a to reach the best decisions and he didn't do that and that's all he was admonished for as you know from the briefing we also the first time they removed him from the flight schedule so that he would attend the meeting of the record it's in the records clear that management felt that captain looter was blowing them off mr commodore the assistant chief in houston at the end of their conversation with kept a looter on the day september fifteenth said you need to come in we need to talk kepler said no i'm going to vacation they sent him a letter you know he was on vacation saying come in october for early morning hours he says no i'm on vacation which wasn't true he was not in vacation and he wrote a long e mail saying you know basically i did the right thing so they they looked at the schedule so he had a flight coming up took them off the schedule and then had  come in in stead of going on a flight october eleventh and he did that the fact of the fact that in the case administrative law judge held as a matter of fact that the reason he was removed from the schedule and lost the three thousand dollars of pay associated with it was because he did not attend the meeting that is a finding of fact which administrative review board did that even mention the administrative review board had to sustain that finding of fact because it was supported by substantial any question that it was for not attending the meeting as i said the judge found that in the the warning letter it was stated that the the leader would not be allowed to make up the flight and he can always bid for more flights but would not be e mail that he wrote that morning october for he didn't say anything about i just found out about this so the evidence shows he was not being candid about why he wasn't coming to the meeting either let me address briefly  that he reasonably believes constitutes a file ation of law so the first thing we need to look at is whether there was a violation or reasonably believed to be a violation of federal law the air piece ruling  life in peril by getting out of the flying the same plane there that there can be no reasonable belief that there was a violation of anything there never was a violation of anything that's clear the plane was always safe at all times continent not wanting to take a plane if it were not what they were lobbying for continental as i said in every case where there's an anomaly has a process in place we want to talk and reach the best decision in this case the best decision may not have been to do an inspection there was no severe turbulence the plane was saying that's really not what i ask you ask you then when continental lobbying him to take the plane up telling him that it would be just right to take the plane up they were they were giving him what information they had it's quote paramount concern and place his final responsibility for an aircraft safety on the pilot in passing the or twenty one statute congress determined that protecting pilots and other employees that report only safety issues from  fourth letter and in october nineteenth letter the october fourth letter had placed mr goodere on a temporary temporary leave in the subsequent letter after the actual meeting with mr lugar they specifically referred to  for calling for these facts and calling for the inspection was the protected activity in three different ways mr hooter had provided information that related to an alleged violation of the then letter for calling furnished fraction without consulting without what they're saying was insubordinate was when mr lugar did in calling for the inspection and what he did was he actually called the dispatcher was connected to a maintenance controller and he spoke with both of them about what had been communicated to him and expressed his reasonable belief that the plane had undergone severe turbulence in the legs from mccallum to houston and that it hadn't had a mechanical or inspection before the legs from houston to miami and making those communications using gaijin in protected activity sunday who worked in maintenance control and conveyed the same information to them with respect and continental's counsel mentioned that he had hung up the phone on the first call as we had mentioned in our br continental zone guy communicates to pilots that they're not supposed to discuss safety issues in the presence of customers that first call was being conducted at the game and there were customers there were customers right there so it would be reasonable for captain looter to think i shouldn't be discussing the safety issue in the present if he's testified to that effect he testified to the a fact that he was concerned that he would get in trouble if he continued on the call no way did he say i didn't want to be on the federal law could you articulate to me how later provided information to continental about an alleged violation of federal law ye regular fourteen c f r ninety one point nine which is an f a a release from states that the pilot must comply with the operating limitations of the a political sealock which is my continental field operations manual states that if a pilot believes that if a plane has flown for severe turbulence a mechanical inspection must be conducted before the flight is taken off the ground the captain goodere had received information through his his first officer that the first officer on the plane had undergone severe turbulence and so he he community then communicated to continental repeatedly and at least four different phone calls that information and his reasonable belief that the plane had gone through severe turbulence and that it was necessary to to to answer is first he he was reporting so there was there were two flights but something on that of the plane before the flight that he was scheduled to fly it was in the first flight of those two that that the the turbulence that's at issue here was incurred so he was and after that first flight that the plane was taken off so he was reporting it is reasonable belief that there already had been a violation based on the flights from houston to miami without having done mechanical inspection before that but he was also reporting to them that there would be a via another at least another violation if the flight from miami back to houston was taken without a mechanical xbox so the violation had actually occurred yet but he was communicating his reasonable violation that a would occur if he took the flight out on that first client there would be only be a violation if it's of power and command thought it was shit was severe turbulence that that warranted introspection when it not necessarily because a flight could encourage severe turbulence and for i guess for different reasons a pilot might think it happened and if but if after the fact it was found that it had incurred severe turbulence continental other one there was did some discussion of the the warning letter that had gone out and counsel for continental had mentioned that there was a nail g finally in the fact that continental had issued the warning letter  they related to related to not not attending the first meet i guess to a few points on that first the substantial evidence in the record supports the fact that muhtar wasn't even in his home state when he found out about the letter from continental continental had sent a notice on september twenty fourth that said we want to have this meeting on october fourth continental knew he was on vacation until october first it so happened that he had days off which is an industry term pilots sometimes have days off where they're just not scheduled to fly so he was he remained in the place that he was first a case in which was their own and didn't find out about the letter until october third so i guess that's the first point the second point i'd make is that the appearance of the fact finding which was alleged by continental occurs on page thirty nine of the yale g s original decision and his discussion of our earth is finding that continental the waves decision which we have briefed the board and look to burlington the supreme court decision on point here which states that any action any action that would dissuade a reasonable worker from engaging in protected activity constitutes advers and concluded that a warning letter of this type of one that says you've had on satisfactory performance issues and we're disappointed in you and may further provide further discipline for further on satisfactory performance there be specifically found that that is highly probable that a company would have discipline this person absent the protected activity there's evidence in the record from both expert witness wadley and from a group of tosa who is continental's systems operation control chief that heated discussions between pilots and dispatchers are commonplace i am yet continental which is a very large airline it flies many flights as we know didn't produce evidence showing that it has disciplined other pilots in these type of situations and i would expect that i would expect given the evidence in the record from fountain of the phone with us that these type of you discussions are commonplace that there would be such items but there is not there's no so there's no compar say but shortly after he had spoken with macor s o c see in the form of i guess it would be some buried in conjunction with with coleman or called captain the and he conducted conversations with them trauma counsel for continental talked at length about the need to coordinate as i said before there were four different phone calls on it it's not as if if captain lugar called for the inspection to one person and then refused to engage in any further conversation on the ship he communicated to at least five different people within continental structure his reasonable belief on that this plane had on or on severe turbulence and therefore needed a mechanical inspection i'm not sure what yeah i think he i think he could have conducted himself a bit better with respect to the call that he was taking on the bridge he could have assuming he was concerned about about the customers presence he could have said i need to take this call out where i'd like to go back into the cockpit that may have been a more ideal way to handle that situation on but as the evidence or in the record suggest these type of heated discussions are commonplace on it's a very pressure pack is made that they believe looters seeks in this proceeding or more compensation that because he didn't file some sort of cross appeal or something he can't raise that so give us a quick response to that we've very fat out of our brief your honor and  we're relying on the supreme court case u s versus leave its american railway express it's a it's an old case and some subsequent cases that are progeny which the issue was raised a lot in the record lows and  and therefore we believe we we can we preserve the right of the issue here and i believe that's around page i want to say about in the forty five range of our brief recess discuss it ordinarily you have to cross  appeal if you want additional relief go down but we don't we're not asking for additional relief the only thing that we raised on that point was we thought that the a or b because of the way they worded their second opinion where they stated that kept on later stop saying  doctors in september of two thousand and eleven and then they talked about the cardio in the next sentence in their opinion always point out is that captain later in fact was still saying his doctors back when mr mares and it took his deposition out in california he testified in his deposition that he had a doctor's appointment with his cardiologist two weeks later and about i don't know two months later whenever we did the briefing on that we supplemented the record with the holter monitor report that was taken after his deposition that compensation correct i would i would have to say what they are be used challenging the judgment i'm challenging them you didn't fall across appeal that's correct all right let me address a couple things that i want to talk about with respect to you were asking about the violations one violation would be flying the airplane from houston to miami without the severe turbulence inspection that's where the violation occurred if american fact went through severe turbulence and didn't write it up and if in doubt frankly everybody testified the case he should you asked about whether captain later testified about not one talking from the passenger he was summoned from the airplane cockpit up to a podium in the gate area where all the passengers a lady and that's when he got that first somewhat heated conversation commodore and there we have evidence in the record and it and there was quite a bit of testimony at the hearing were he talked about he didn't want to talk about the airplane having gone through severe turbulence in front of the passengers that were all standing around within earshot so that's something that i want to clarify for real i think it's also very important to note that the l j on page thirty eight of his original opinion found that commodore did not talk to captain america first officer sols even though he told later on the phone that he had talked to them and they said they didn't go through serotonin so we spent quite a bit of time trial showing a timeline that showed that commodore couldn't have talked to those two gentlemen till they got to the hotel which was after litter took off after the airplane had significant issue lootera i guess the other thing was the violation you asked about i think your honor he said what were the violations and i think the violation would be flying the airplane through severe turbulence and not having inspected and telling captain condo if you make me fly this airplane i will report you to the f a a had come in and simply just gone ahead and ordered the inspection at the time later called hoarders and called the dispatcher i don't even think the flight would have taken th i think that anyone who hangs up on his boss in a second phone call is absolutely disrespectful to the boss is summoned by the chief pilot in houston to a meeting and lies and says he's on vacation refusing to agree to go ahead and take off an airplane the a l j didn't make adequate findings a pretext the question about pretext would be was the reason he was given the warning letter not because they thought that he deserved some kind of warning but because he refused to take a flight that's the pretext question that there is no evidence in the record that these management pilots are going to be mad at somebody for wanting an expection if there's turbulence what happened here is they got word of this odd situation and could completely legitimate leap based on their knowledge of safety and their experience and their understanding of severe turbulence could reasonably determine hey what was going on here let's figure this out this the comments you heard about the pressure pack situation and then you know pushing him to take a plane that wasn't the point  these pilots know you let's put it this way if if captain lemaire had thought there was severe turbulence between macallan and houston and got to houston and rode up severe turbulence and inspection  there's no evidence he would've been punished for that that would be a day in the life of a pilot that that's the normal thing that happens this was not a normal situation again if in the end kept a looter said you know what guys i really think based on what i have heard that there should be an inspection management to set fine you know all of your argument and that goes to viewing the facts in the record differently so give us your best fact or facts to show that there was not substantial evidence to support the euro be well that's hard to do because the we don't agree with a or b that any of the findings saying that captain lugar was  reasonable under the circumstances can't stand because you cannot be reasonable when you're not listening to people and you're not giving him the information he needs to throw captain lemaire under the bus to to make out any sembla violation he kept a low mayor knew there was turbulence and for whatever reason didn't write it up i can't narrow it down to one fact but facts are facts no you possibly can narrow  down one but we're looking at substantial evidence cast i mean that's the whole point of administrative procedures and the a l j heard the testimony of the witnesses here judge their credibility and center return true to the truth you know so why would we find that was not substantial evidence in support of the root the first of all there really weren't that many credibility determinations or section on credibility that where the judge says sometimes he credits later and sometimes he it the issue in the case that we have is the application of these facts to their twenty one the aviation whistleblower statute the statute does not put the department of labor in charge of determining whether management or a pilot was more reasonable or more prudent operational issue under air twenty one that is not the department of labor's role we can trust the system that's in place to protect safety and that requires as i said at the beginning coordination and communication and open mindedness that is how safety is protected we don't we don't have a statute that's in place for the department of labor say well we look at this why we look at this position and we look at these facts and we decide who is more prudent that's what the department of labor did in this case the f a a is nowhere to be found in this case if there were violations were expect the f a a to be more concerned about that right congress and is where jim gave them a department of labor the right to decide these cases they in their wisdom they gave the department of labor the right to decide if in this case captain ghost punished kept a looter for asking for inspection it is no small thing for a department of labor to find that captain joseph would punish somebody for doing that i mean he he as the record shows is an experienced pilot the department of labor gets to determine if there is punishment for reporting a violation that as we said in our brief that is not what happened here the department of labor they and then the a a r p went off and well in these circumstances we think that the looter was more reasonable more prudent and we don't think management was prudent in this situation that's that is not what congress in its wisdom asked department of labor to do in this case but time's up thank you very much