Date: 201204
Local time of day: 1201-1800
Location: ZZZ.ARTCC, US
Flight conditions: VMC
Light: Daylight
Aircraft: EMB ERJ 135 ER/LR
Operator: Air Carrier
Operating under: Part 121
Flight plan: IFR
Mission: Passenger
Flight phase: Climb
Airspace: Class A ZZZ
ATC / advisory: Center ZZZ
Aircraft component: Flap/Slat Control System
Component problem: Improperly Operated
Reporter organization: Air Carrier
Reporter function: Captain; Pilot Not Flying
Reporter qualification: Flight Crew Air Transport Pilot (ATP)
Human factors: Distraction; Fatigue; Situational Awareness; Workload
Anomaly: Deviation - Speed All Types; Deviation / Discrepancy - Procedural Published Material / Policy
Detector: Person Flight Crew
When detected: In-flight
Result: Flight Crew Became Reoriented; Flight Crew Took Evasive Action
Contributing factors: Company Policy; Human Factors
Primary problem: Human Factors

Narrative: I was the pilot not flying during this flight. Shortly after takeoff at around 1;000 FT AGL ATC amended our initial heading due to another aircraft that went missed approach. At this time I adjusted the heading bug for the pilot flying and began visually looking for the aircraft that went missed. I failed to make the 'Acceleration Altitude; V2 plus 15' call due to this distraction. We were then given another heading and told to contact Departure. Shortly after contacting Departure we were given direct an en route intersection. I entered direct the intersection in the pilot flying's FMS at that time. Shortly after entering the fix into the FMS I quickly realized that the FMS was deferred and we went into heading mode and then used the non MELed FMS on my side. I then switched the navigation source on the pilot flying's MFD to the proper FMS. Around 8;000 MSL the First Officer who was pilot flying noticed we were still in ALT TO/1 mode for our thrust rating. At this time the pilot flying switched the thrust rating to CLB. At around 9;000 FT MSL I noticed our airspeed was around 225 and the pilot flying selected a 1000 FPM climb rate in VS mode. The aircraft began to accelerate to around 240. At 10;000 FT I performed the climb flow and right before the pilot flying called for the checklist we were given a frequency change to contact Center. I then had trouble finding the normal checklist on my side and asked the pilot flying if I could use his. I then read the Climb checklist but failed to visually look at the flap indication when I reached 'Flaps' in the checklist. While climbing out I noticed the aircraft was staying right at 240 KTS and I assumed the aircraft was going to increase to the normal 270 KTS and failed to continuously monitor the airspeed for the next several minutes. During these several minutes the pilot flying and I had a discussion about the FMS MEL and other non aviation related topics. We were given several different altitudes by ATC while we were in the climb. While climbing to our assigned altitude of 35;000 the First Officer made a comment 'Oh crap' and raised the flap handle from 9 to 0. This happened around 24;500 FT; we also noted the aircraft speed was around 242 at this time. The flight continued normally and without further incident. Flaps operated normally on descent and approach. Upon reaching the gate I made a logbook entry of the altitude that flaps 9 were extended and the maximum speed we noticed was 245. I then called Maintenance Control and notified them of the logbook entry. This was leg 6; hour 11 of a 12 hour duty day. We had an early report which resulted in waking up at even earlier. Following SOP (Flows; Checklists); be aware of complacency and attempt to have a higher level of alertness when distracted by factors outside the cockpit; in this case an ATC clearance. Fewer legs per day and a shorter duty day would have resulted in a higher level of mental alertness.




Synopsis: An EMB135 Captain reported fatigue and distraction contributed to the crew's failure to raise the flaps until FL 24.5 and about 242 KTS.