Field McConnell v.s. Airline Pilots' Assoc., Intl.

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19 January, 2010 at 10:15 am, Washington DC.

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA

FIELD McCONNELL
9223 50th Ave.
South Glyndon, Minnesota 56547

Plaintiff
v.

AIR LINE PILOTS’ ASSOC., INT’L
ALPA's Headquarters 1625 Massachusetts Avenue, NW
Washington, DC 20036

CASE NO:
JUDGE:
MAGISTRATE:

COMPLAINT
(Jury demand endorsed hereon)

Defendant For his cause of action against Defendants, Plaintiff Field McConnell states:

I. INTRODUCTION

1. Plaintiff alleges below, and will prove at trial, that Defendant has wrongfully caused the termination of Plaintiff from his employment by Defendant Northwest Airlines. This is a constructive discharge case, based upon a violation of Plaintiff’s rights pursuant to the written contract between the Air Lines Pilot Association and North West Airlines, Inc.

II. THE PARTIES

2. Plaintiff Field McConnell is at all times material hereto, a fifty eight year old male citizen of the State of Minnesota, and a resident of the State of Minnesota. Plaintiff’s U.S. Mail address is within the City of Glyndon, Minnesota. Plaintiff’s father was a United States Air Force bomber pilot during World War II, and his mother was an Army nurse. Plaintiff graduated from the U.S. Naval Academy in 1971 and served as a U.S. Marine Corps pilot from 1971 to 1977. From 1977 to his retirement in 1993, Plaintiff was a pilot in the Air National Guard, flying F-4 Phantom, and the F-16 Falcon fighters. From 1978 through 2007, Plaintiff flew commercial airline planes for North Central Airlines, Republic Airlines, and NWA, successively, after his tenure as a captain, was assigned to flying the DC 9, A320, DC 10, Boeing 747-400 jet airliners. Plaintiff presently is a pilot for Air Astana, in the Republic of Kazakhstan.

3. Defendant Air Line Pilots Association, International (ALPA) , is the largest pilots union in the world, and represents over 55,000 pilots. It was founded more than 70 years ago, with the motto “Schedule with Safety.” The union's aeronautics engineers and safety and security experts provide unparalleled independent analysis on emerging airline safety and security issues, as well as federal and industrial policies. ALPA accident investigators assist the National Transportation Safety Board and the Transportation Safety Board of Canada during on-site investigations and participate in associated public hearings.

III. JURISDICTION and VENUE

5. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C § 1332 as this matter involves a controversy between citizens of different states, and the matter in controversy exceeds the sum of seventy five thousand dollars ($75,000.00), exclusive of interests and costs.
Venue is proper in this Court pursuant to the provisions of 28 U.S.C. § 1391(a)(2) because Defendant maintains headquarters in the District of Columbia.

IV. FACTUAL BACKGROUND

6. On July 31, 2006, NWA entered into a contract of employment with the Air Line Pilots Association. That contract governs the discipline and discharge of NWA pilots, and particularly, the Plaintiff. Section 19 of that contract is titled “Discipline and Discharge” and defines all aspects of Plaintiff’s discipline and discharge and defines the rights of Northwest Airlines and Plaintiff.

7. As a NWA pilot and a member of the ALPA, Plaintiff is bound by, and his conduct governed by, the ALPA Code of Ethics. That Code of Ethics (“Code”) is incorporated by reference as though fully rewritten herein.

8. The ALPA contract requires that only AME doctors examine NWA pilots, with one exclusive exception. That exception states: “If the Company has a REASONABLE cause to believe that a pilot has developed a MEDICAL IMPAIRMENT to his ability to perform his duties between the routine medical examinations required by the Federal Aviation Administration (FAA), the Company may require said pilot to submit to a medical examination from a non-AME doctor chosen by the Company.” The Company did NOT have a REASONABLE cause to believe that Plaintiff McConnell has developed a medical impairment to his ability to perform his duties, which occurred between the routine medical examinations required by the FAA.

9. Plaintiff objected to this procedure and requested that the Defendant ALPA represent Plaintiff in his effort to prevent NWA from ordering Plaintiff to undergo tests from a non AME certified doctor. The ALPA did not give proper attention to Plaintiff’s issues, and provided no help.

10. On June 7, 2007, the Defendant ALPA Field Office located in Minneapolis/St. Paul, Minnesota, asked that Plaintiff file a grievance. Plaintiff did that. But the Defendant ALPA took no effective action on that grievance, and failed to fully and completely represent Plaintiff in this process against NWA.

11. Section J.3.b, titled, Just Cause, of the ALPA contract; and, Section 19, titled Discipline and Discharge establishes that a pilot who has been disciplined by the Company may contest the Company’s action by filing a written request for hearing with the Managing Director of Flying within 30 days of receipt of the written notice. Defendant ALPA did not take the necessary steps to protect Plaintiff’s interests, or to protect Plaintiff for engaging in conduct which was mandated by the Code. Defendant directed that Plaintiff attend a meeting in the Minneapolis Field Office where the attorney for ALPA Rob Plunkett interviewed Plaintiff for about 20 minutes prior to Plaintiff leaving for a physical examination which was conducted by Dr. William Isaksen, at the Park Nicollet Clinic in Minneapolis, Minnesota. Dr. Isaksen is not a physician who is certified as an Aero Medical Examiner. The ALPA attorney requested that the NWA ALPA Safety Committee Chairman also sit in a conference room with Rob Plunkett and Plaintiff as Plaintiff explained his safety issues to each. The NWA Safety Committee Chairman appeared to Plaintiff to not understand the safety subjects being discussed and did not appear interested in learning anything regarding the subject matter. After about 15 minutes Plaintiff departed for the physical appointment with Dr. Isaksen, which Plaintiff then passed.

12. Defendant ALPA refused to represent Plaintiff and refused to object to the decision of NWA in requiring Plaintiff to be subjected to a physical by a non-AME doctor, who is not qualified to assess Plaintiff’s health as it pertains to flying aircraft. Only AME Doctors can determine fitness for flying, which reflects the exact purpose why the FAA certifies those only certain physicians.

13. Dr. David Glatt, is Plaintiff’s AME physician. Notwithstanding that Plaintiff was not placed on an active status which would permit Plaintiff to fly, Plaintiff continued his regular and routine practice of undergoing physical and mental examinations by Dr. Glatt or predecessor AMEs, or military flight surgeons, at 6 months intervals, commencing in 1966, and continuing uninterrupted. Plaintiff had successfully passed all flying physical and mental examinations conducted by the US Army, Navy, Air Force, Marines and FAA. Plaintiff is next scheduled to undergo his next First Class physical and mental examination on October 27, 2008. Dr. Glatt, or predecessors, with their record of thoroughly testing Plaintiff during more than 80 medical examinations, has never found a reasonable belief that Plaintiff should undergo a psychiatric or additional medical examination.

14. At the time of the allegedly scheduled physical examination, for which no reasonable basis existed, Plaintiff was already on an approved medical leave relating to a hernia. As a result of this hernia, and of which NWA had knowledge, Plaintiff’s blood pressure was dangerously elevated and this condition additionally disqualified Plaintiff from flying. As a result, there was no logical reason for requiring Plaintiff to be physically examined by any physician, particularly a non-AME physician. NWA knew that Plaintiff’s erratic blood pressure prohibited Plaintiff from flying airplanes. The company had no reasonable cause to believe stacking another alleged medical reason on top of that medical issue would provide an additional medical impairment to prevent Plaintiff from assuming his duties as a pilot.

15. Pursuant to the ALPA contract as stated above, NWA can only require Plaintiff to be examined by a non-AME physician, “If the Company has a REASONABLE cause to believe that a pilot has developed a MEDICAL IMPAIRMENT to his ability to perform his duties between the routine medical examinations required by the Federal Aviation Administration (FAA), the Company may require said pilot to submit to a medical examination from a non-AME doctor chosen by the Company." In fact, the Company, NWA, did not possess a REASONABLE cause to believe that Plaintiff McConnell has developed a medical impairment to his ability to perform his duties,which occurred between the routine medical examinations required by the FAA.

16. Plaintiff requested that Defendant ALPA, through representative Ken Watts, take action that would result in Plaintiff being made financially whole to Plaintiff’s maximum retirement age. Defendant ALPA did nothing.

17. Notwithstanding that Plaintiff was not placed on an active status which would permit Plaintiff to fly, Plaintiff continued his regular and routine practice of undergoing physical and mental examinations at 6 months intervals, by Dr. Glatt. This routine practice has occurred since 1966, including successfully passing flying physical and mental examinations conducted by the US Army, Navy, Air Force, Marines and FAA. Plaintiff’s next scheduled First Class physical and mental examination is set for October 27, 2008.

18. On March 13, 2007 NWA stated in writing that after Plaintiff presented himself for an unnecessary physical by a doctor unqualified to assess Plaintiff’s flying worthiness who then, when Plaintiff passed, referred Plaintiff to a psychiatrist who is known to be hired by Continental, United and Northwest airlines to disqualify pilots.

19. NWA had scheduled an appointment for Plaintiff to undergo a neuropsychological examination by Dr. Robert Elliott. Dr. Elliott is a board-certified neuropsychologist who has devoted fifty percent of his practice to the evaluation of pilots, consulting with most of the major air carriers such as Continental, Delta, United, and NWA, and the FAA. He has performed over 800 evaluations of airmen since 1976.

20. Plaintiff did not attend the scheduled psychological exam scheduled by NWA with Dr. Elliott. NWA never advised Plaintiff that a psychological examination was scheduled. Plaintiff was not notified orally, electronically, or through the U.S. Mail. Consequently, for the alleged failure of Plaintiff to attend the allegedly scheduled psychological examination, NWA removed Plaintiff from the payroll of NWA.

21. NWA had employed Dr. Elliott in Los Angeles to do a variety of things for the contracting airlines. Proper procedure requires that ALPA is always notified before a pilot is directed to be examined by a physician, and this incident with Plaintiff was no exception. While exerting such rigid and careful management of the allegations of Plaintiff’s infirm mental condition by NWA, Defendant ALPA had knowledge that the medical and mental assessment of Dr. Elliott was biased in favor of NWA and that Plaintiff was a victim of an unfair and predetermined mental evaluation by Dr. Elliott.

22. While exerting such rigid and careful management of the allegations of Plaintiff’s infirm mental condition by NWA, Defendant ALPA had knowledge that the medical and mental assessment of Dr. Elliott was biased in favor of NWA and that Plaintiff was a prospective target and victim of this unfair mental evaluation by Dr. Elliott.

23. During the aftermath of the national disasters that occurred on September 11, 2001, relating to airline disasters involving airliners crashing into the World Trade Center in New York City, into the Pentagon, and into the country side in Somerset, Pennsylvania, Plaintiff began to question the public accounts, pursuant to his duty and obligations imposed by the Code. As a direct consequence of Plaintiff’s expressions pursuant to the Code, NWA scheduled Plaintiff to undergo a physical examination by a non-AME physician. This was at a time when Plaintiff was already on extended sick leave due to erratic blood pressure.

24. ALPA attorney Rob Plunkett requested that NWA Chief Council David Driscoll to produce any letter directing Plaintiff to submit to the allegedly scheduled examination by Dr. Elliott. To the present, NWA Chief Council David Driscoll has failed to produce such a letter. No such letter has ever existed.

25. There existed no notification to Plaintiff by NWA to submit to the medical evaluation. but NWA and Plaintiff had entered into a written contract on August 22, 2001, wherein NWA CEO Richard Anderson, or his chain of command representative, tacitly approved Plaintiff’s physical and medical condition that barring a buyout to age 82, without financial penalty, any flying done for NWA was deemed to be "under protest and free of prosecution from any quarter". That series of letters and the contract tacitly approved went to the Minneapolis Chief pilots Rick Toscano or Tim Beutell to NWA Director, Flying Operations Jeff Carlson, for Jeff to deliver to CEO Richard Anderson. The letters unambiguously stated that any agreement would be between Plaintiff and Richard Anderson. Each letter was returned to Plaintiff without modification from NWA in the chain of command.

26. In the August, 2001 NWA had falsified safety sensitive flying records. In December, 2006 NWA was in receipt of verifiable safety related information. Three different VP level NWA management officials: Tim Campbell, Ken Hylander and Peter Moore made light of Plaintiff’s safety concerns and expressed ridicule of Plaintiff’s safety interests, expressed by Plaintiff in compliance with his duty pursuant to the Code. Instead of forwarding the message to their superiors in the chain of command, these individuals took no action.

27. The information itself was not in dispute as Boeing had recently paid a $615 million settlement to the United States Dept. of Justice, to settle issues relating to an investigation of illegal modification of Boeing jets and illegal export of military technology regarding the QRS 11 GyroChips. Instead of acting upon Plaintiff’s concerns, Campbell, Hylander and Moore ordered Plaintiff to retract his statement regarding the deployed technology. Plaintiff refused to retract his statement, pursuant to his duties and responsibilities pursuant to the Code. To the present time, Plaintiff maintains that the modifications made to the Boeing airplanes, and which remain today, are unsafe and illegal modifications. In support of this position, 21 days after Plaintiff alerting NWA and ALPA, Adam Air flight no. 574 was vaporized in mid-flight. The plane, with 96 passengers and six crew on board, was lost from the radar screen while in flight at 35,000 feet.

28. Four months after this incident, Kenya Airways Flight 507 was vaporized. It was a Boeing 737 flight of Kenya Airways flying from Douala International Airport in Douala, Cameroon, to Jomo Kenyatta International Airport in Nairobi, Kenya, that crashed on May 5, 2007. The flight originated from Port Bouet Airport in Abidjan, Côte d'Ivoire, and made a stop in Douala to pick up more passengers. It departed Douala at 0105 GMT (0005 local time) on May 5, 2007. The airframe was only six months old when the plane broke up into small pieces and came to rest mostly submerged in a forested swamp.

29. Each of the subject B737s were destroyed in a manner which was consistent with Plaintiff’s written warnings to NWA and ALPA. Further, Plaintiff had a face to face interview with the NWA and ALPA safety representatives with ALPA Attorney Rob Plunkett present on January 31, 2007, wherein Plaintiff briefed NWA, ALPA and attorney Plunkett on the deployed weapons. This information was not passed along the chain of command. Plaintiff possesses numerous emails to ALPA National regarding the same issue and they claimed they were aware of QRS11s but did not know the full potential of their deployment in Boeing flight guidance systems.

30. Because of Plaintiff’s expression of his concerns pursuant to the Code, on March 2, 2007, NWA dropped Plaintiff from its payroll for missing an alleged appointment. On March 13, 2007, Plaintiff was constructively discharged by NWA. 31. As a direct and proximate result of the conduct of Defendant ALPA in not fully, completely, and properly representing Plaintiff in the grievance process; and, not fully representing Plaintiff in the against the procedures involving the slanted medical and psychological examinations, and permitting Plaintiff to be subjected to the unfair and biased treatment by NWA, Defendant caused Plaintiff to incur the loss of his employment at NWA. As a direct and proximate result of the conduct of Defendant ALPA, Plaintiff has been damaged, and made to endure serious and extreme financial losses, including back pay, front pay, lost benefits, and decrease of retirement pay.

WHEREFORE, Plaintiff demands judgment against the Defendant and for an Order as follows:

A. A judgment in a sum which exceeds $5,000,000.00 for the loss of employment and all of
the benefits of that employment, including back pay, front pay, retirement benefits; and, the emotional and psychological damages injuries incurred by Plaintiff due to the failure and refusal of Defendant to properly represent Plaintiff;

B. Plaintiff further demands judgment against Defendants in the form of punitive damages in a sum which exceeds $5,000,000.00 for the willful and intentional conduct in disregard for the safety of airline passengers, and for the treatment of Plaintiff in Plaintiff’s compliance with the mandatory provisions of the Code.

C. Pre-judgment and post-judgment interest; and,

E. Attorney fees, costs, and other such relief which this Court deems just and proper.

Respectfully submitted,

_______________________
James Q. Butler
Attorney for Plaintiff
818 18th Street - 6th Floor
Washington, D.C. 20006
Ph: 202-223-6767/fax: 202-223-3039

JURY DEMAND
Plaintiff demands a trial by jury on all issues.

________________________
James Q. Butler