Allegiant fires pilot after ordering an emergency evacuation

[SeenItAll]

It was June 8. With the smell of acrid smoke filling his cabin, he’d just made an emergency landing at Florida's St. Pete-Clearwater International Airport, where ground fire crews had informed him that his No. 1 engine was smoking. Despite cutting power to the engine, the smell hadn’t dissipated, Kinzer said, and he was worried about his 141 passengers...

He knew an emergency evacuation could be risky. But a smoky plane can be risky, too.

“This is a tough corner to be backed in because you have very little information and you may have a very small amount of time to get it right. ... How long do you wait?” Kinzer said in an exclusive interview with ABC News’ David Kerley. “I felt the best decision was to get them to safety and get them away from an airplane that was smoking.”

So he popped the emergency slides and ordered an evac.

Six weeks later, he was fired...

In a lawsuit filed Thursday, Kinzer’s lawyer claims Allegiant ousted Kinzer “maliciously” because he hadn’t prioritized company assets and negative media exposure above passenger wellbeing...

According to the lawsuit, Allegiant may have disregarded a Federal Aviation Administration regulation that places the responsibility for emergency decision-making with the pilot...

Full story here: https://gma.yahoo.com/ex-pilot-sues-allegiant-malicious-firing-emergency-evacuation-132448481--abc-news-topstories.html#

[peekay4]

An unidentified voice on his radio had advised him to hold off on evacuating the plane, then ceased transmission. But without knowing the source of the directive or what was going on with the jet, Kinzer was wary.
What's the rest of this story? What a bizarre situation.

[Airbubba]

A few weeks later the guy that fired him made a little news himself:

Pilot Low on Gas Declares Fuel Emergency After Runway Closure - ABC News (http://abcnews.go.com/US/pilot-low-gas-declares-fuel-emergency-runway-closure/story?id=32739901)

[Heathrow Harry]

sounds like an outfit to avoid............

[West Coast]

Not if you're an investor.

[Airbubba]

For all of you PPRuNe sea lawyers here is a link to the lawsuit as filed:

https://consumermediallc.files.wordpress.com/2015/11/2015-11-10-complaint.pdf

[B2N2]

A few weeks later the guy that fired him made a little news himself:

Pilot Low on Gas Declares Fuel Emergency After Runway Closure - ABC News

And how do we know this to be true?

[DaveReidUK]

And how do we know this to be true?

The link in post #3 includes an ATC recording. Doesn't sound fake to me.

[peekay4]

Thanks Airbubba.

Here's an excerpt from the radio transcription detailed in Exhibit 1. The "Unknown" voice seems to be RF2 but not identified as such.

2042:03 864 Yes right here we're going to be evacuating
2042:05 RF 864 roger
2042:07 Unknown 864 hold off on your evacuation please
2042:13 864 Who said to hold off
2042:15 Unknown Yes please hold off on your evacuation
2042:16 864 Yes who is this
2042:22 GC Be advised when you guys are making transmissions identify yourself first so everybody knows who's talking to who
2042:29 864 Yeah Allegiant 864 who's telling us not to evacuate
2042:34 Unknown Airport Command RF 2 I'm telling you not to evacuate yet
2042:37 864 All right
2043:01 864 Allegiant 864 why do you want us to hold
2043:17 864 We need answer please why do you want us to hold on the evacuation
2043:27 GC RF 2 Command safety ground did you copy Allegiant's transmission
2043:36 GC Ops 1 are you on St. Pete ground
2043:44 GC Okay are there any emergency vehicles any of the RF vehicles on ground frequency
2043:51 RF3 Affirmative RF 3 on
2043:53 GC Okay RF 3 on Allegiant 864 is requesting why do you want them to hold on the evacuation they need an answer please
2044:04 RF RF 3 give me one second I'll contact the man on the ground

(no other related conversation until the transcription end).

[susier]

From the dismissal letter:


'You ordered an evacuation that was entirely
unwarranted and, as a result, your conduct and decision-making on June 8,compromised the safety of
your crew and your passengers and led directly to the injuries.'


I didn't see a reference to any injuries in the rest of the document.

[peekay4]

@susier
Four passengers and one flight attendant sustained injuries. News Channel 8 saw two passengers hauled out on stretchers and placed into ambulances
Allegiant plane leaving St. Pete-Clearwater makes emergency landing | WFLA.com (http://wfla.com/2015/06/08/allegiant-plane-leaving-st-pete-clearwater-makes-emergency-landing/)

[B2N2]

The link in post #3 includes an ATC recording. Doesn't sound fake to me.

I know that, but how do we know that is the same person?
He's been fired by either the Chief Pilot, the DO or the Head of HR.
So how do we know the guy telling him to hold off on evac is the same guy low on fuel?

[DaveReidUK]

So how do we know the guy telling him to hold off on evac is the same guy low on fuel?

I think you're getting confused, nobody is suggesting that as far as I can see.

[mary meagher]

I hope Captain Kinzer wins his lawsuit, and I wonder why when he claims defamation and loss of employment prospects, he is only asking for $10,000!
This seems far too little for the damage to his career.

According to the writeup from News Channel 8 the same day, the passengers were upset by "screaming flight attendants" and having to clamber out on the wings by themselves. The media intends to provoke shock and horror at the very behavior flight attendants are TRAINED to provide - in event of an evacuation with smoke in the cabin, commands are given at the top of your voice, not in a whisper or as a gentle suggestion. (and forget about taking out your carry on baggage, right?!)

I've flown out of St.Pete Clearwater quite a few times (in a beatup 172). This airline Allegiant carrying 141 pax from St. Pete to Hagerstown Maryland is probably running on fumes anyway! borne out by the second incident appearing in the media. Never thought I would be cheering for the lawyers, but in this case, the sooner this flaky operation is shut down the better.

[Airbubba]

A few weeks later the guy that fired him made a little news himself:

Pilot Low on Gas Declares Fuel Emergency After Runway Closure - ABC News

And how do we know this to be true?

Well, it's not exactly a state secret if you've been following the recent Allegiant saga:

Two Allegiant Air executives, the vice president of operations and the director of flight safety, were at the controls of the flight that made an emergency landing last week because it was nearly out of fuel.

Greg Baden, Allegiant's vice president of operations, and Michael Wuerger, director of flight safety, government affairs and quality assurance, were flying Allegiant's Flight 426 from McCarran International Airport to the Fargo, N.D., Hector International Airport on July 23.

A representative of Allegiant confirmed that Baden and Wuerger were flying the plane, adding it is not uncommon for members of operations management to take flights to maintain their pilot status.


Allegiant Air execs at controls of flight that landed with low fuel | Las Vegas Review-Journal (http://www.reviewjournal.com/news/las-vegas/allegiant-air-execs-controls-flight-landed-low-fuel)

But, the good news is that V-P of Ops Captain Baden was found to have 'exercised sound judgment' after he investigated his own incident :ok::

An in-house investigation of the emergency landing of Allegiant Air Flight 426 in Fargo, N.D., last week has found that the flight crew operated within the bounds of all regulations and "our captain exercised sound judgment in the operation of his aircraft," the airline said Thursday.

Allegiant investigation: Captain exercised sound judgment | Las Vegas Review-Journal (http://www.reviewjournal.com/news/las-vegas/allegiant-investigation-captain-exercised-sound-judgment)

The Allegiant line pilots are members of a union with strong historical ties to organized crime (as in the Mafia). The current president is the first in many years not to be indicted on federal felony charges. Most of the union's leaders in the past six decades have gone to prison. Jackie Presser beat the rap by dying of a heart attack in 1988 and Ron Carey was acquitted in 2001 but I believe every other recent past president has done hard time in federal prison. Yo' Vinnie, youse got a problem wit dat?

[Huck]

But, the good news is that V-P of Ops Captain Baden was found to have 'exercised sound judgment' after he investigated his own incident

True management material, that one

[izx]

I wonder why when he claims defamation and loss of employment prospects, he is only asking for $10,000! This seems far too little for the damage to his career.

No, it says "in excess of $10,000" and you can bet they will be asking for commensurate damages. That is just boilerplate language to establish that this is not a "small claims" lawsuit and is within the jurisdiction of the relevant civil court.

[space-shuttle-driver]

The wording of the termination letter addressed to Cpt Kinder seems very thin to me. I wish Kinzer to win this court case!

Recently, British Airways showed us how quickly an airliner can burn down. This MD80 did not end up burning, but one cannot foresee that as a pilot at that moment.

Anybody know if and when this MD80 was released to service again, and what the cause of the smoke was?

[ironbutt57]

this mob is another ValuJet just waiting to happen...the low fuel story with the management pilots flying is very interesting reading...

[twb3]

I was not likely to fly Allegiant before, and certainly not now.

Can't think of any worse safety practice than second-guessing a PIC and attempting to deprive him of his livelihood because he make a call fully within his authority and to the benefit of his passengers and crew.

TWB

[Hotel Charlie]

This is outrageous :mad::mad: ....
The FAA should pull their AOC immediately :eek:

[Old Boeing Driver]

It would be interesting to know who on the outside of the plane transmitted, "Hold off on your evacuation". Was it RF2, or a company official?

How would they know what is really going on within the cabin?

I can't imagine someone not knowing the inside issues ordering a PIC to not exercise HIS authority.

Again, just my $.02.

Regards,

OBD

Edit. I re read the radio info. I see it now.

[clunckdriver]

This is typical of the state of the industry amoungst the "Bottom Feeders" South of the border, also of some of our outfits in Canada, I hope the FAA audit these idiots and if possible, shut them down!

[rog747]

this story is one of the most shocking reads on ppruner in a while

hope the FAA suspends them soon

[obgraham]

I've flown Allegiant a number of times.

Their cabin crew are professional. Their flight crews likewise (as far as I as a SLF can ever tell!)

I'm not flying them any more. Till they re-organize.

[West Coast]

The FAA should pull their AOC immediately

Why would the FAA become involved in a human resources issue with an employee? Not thier turf to determine if the firing has merit or not, that's the job of the court.

[phylosocopter]

west coast of course its a matter for the FAA they are very much involved in the cabin decision making process and for good reason

[West Coast]

This isn't about the evac. The PIC made his decision. The CMO office would have reviewed the process for compliance. If they had issues with that, then there would be a number of paths to head down from case closed to taking issue with the procedure itself, the PIC, the FA's and anyone else who touched the issue.

That Allegient fired him is an internal company decision. The courts will determine if the termination was appropriate or not, not the FAA.

Before you rush to reply, ask yourself why this isn't in front of a NTSB judge if you think the FAA has jurisdiction.

[Huck]

PIC authority is, I assume, defined in company flight ops documents. Documents that are approved by the POI.

This is most definitely an FAA issue. They just haven't gotten involved yet.

[West Coast]

As regards the firing, your incorrect. If the the evac was completed improperly, yes the FAA would have a say.

[Sue Ridgepipe]

This doesn't send a good message to the rest of the troops does it? I mean, what's the next guy going to do in the same situation? "**** I don't know if we're on fire or not, but I'm not going to evacuate because I'll get fired".

[LindbergB767]

Your right
Is it the type of Airlines who will fire a Captain if he does a go around because they are not stable at 1000 feet or 500 depending of their SOP??

[ACMS]

One word.......wow

Wonderful safety culture they are fostering.

[ironbutt57]

From the folks I know there, they have some good talent in the flight deck, but the rest is in shambles...including flt ops management...few I know have stuck it out just long enough to get the jet hours then bail, hopefully without a violation, or incident on their record..

[RAT 5]

When in doubt there is no doubt. I'm all for evacuating when it is obviously the best thing to do. Sometimes it's obvious it is not necessary. Sometimes it's a grey area and there is doubt, often due to lack of information or accurate information in which you have confidence. In all circumstances it is your neck on the block. Damned if you do and damned if you don't. Prevaricating is not a good idea as the 'flames rise high into the night to light the sacrificial light'....

[atakacs]

As many other postersI find this really shocking - of course with the benefit of hindsight it might be easy to blame to captain but it is really up to him in the heat (no pun intended) of the moment. From all I can see here his decision seemed appropriate.

Just a quick question: notwithstanding the inherent risks of an emergency evacuation, what would be the cost to the carrier - I'm looking for a ballpark estimate of the direct (replacing the slides, checking some equipments) and indirect (paperwork, possible delays) costs ?

[wanabee777]

The FAA, initially, was going to violate this Delta Captain for not commanding an evacuation for an AGB magnesium fire on a B-767:

NO ONE HURT AFTER FIRE FORCES PLANE BACK TO S.L. | Deseret News (http://www.deseretnews.com/article/496853/NO-ONE-HURT-AFTER-FIRE-FORCES-PLANE-BACK-TO-SL.html?pg=all)

There's a video of the fire but I couldn't find it doing a Google search.

[DirtyProp]

Shouldn't the FAA be looking to whoever made the transmission to hold off the evac?
Who said it and on what grounds?

[2EggOmelette]

What really gets my goat is that some raving halfwit at management level actually thinks that a move such as this will not end in a bad result for the company. Better to burn some time than burn the bloody passengers. The Captain made the right call, simple.

[Basil]

2042:07 Unknown 864 hold off on your evacuation please
2042:15 Unknown Yes please hold off on your evacuation
2042:34 Unknown Airport Command RF 2 I'm telling you not to evacuate yet
Could this be considered to be a criminal offence, i.e. Willfully endangering a flight?

[4040]

The scenario could quite conceivably been that the delay and confusion caused by the "hold off" transmission could have cost lives.

A serious investigation of that transmission must surely be taking place.

As for the sacking I cannot think of a more damaging way to attack safety culture

[Tu.114]

As far as I am aware, the Commander is ultimately responsible for the aircraft and its inhabitants safety. To achieve this, he is allowed to make decisions and orders as he sees fit, in case of an emergency even above and beyond the scope of the books and the law. In emergency, he is only measured by the result: did everybody make it out alive or not? If the company entrusts a Commander with an aircraft, it at the same time entrusts him with this power.

There is no instance above the commander on the aircraft. Should there be any doubt, a look at the Polish Airforce Tu-154 accident in Smolensk might be enlightening.

I would be highly surprised if this termination was to be held up in court and not kicked out unceremoniously. All the best to the Captain.

[wanabee777]

I hope he gets a massive settlement because I'm sure he doesn't want to return to work for a management team like that.

[RatherBeFlying]

90 seconds is the standard evacuation time. That's a long time for a fire.

fsaLCdC3iWw

[er340790]

Dry Scotch Pine Tree...

Bl00dy hell! Was the Pine Tree full of Scotch then????? :eek:

[ShotOne]

Sounds pretty outrageous; if that decision isn't within the Captain's authority, what is?

Secondly, I hope there has been an investigation into the unidentified voice telling to hold off. In that situation, information from outside could be crucial -but having some unknown person trying to run the decision-making while giving no info at all may have been disastrous!

[DX Wombat]

er340790 no, just volatile oils and resin. Crowning out occurs in Australia during some bush fires when the eucalyptus oils ignite. :(
As a Radio Amateur I am well aware that some unscrupulous, unlicensed persons have been known to make illegal broadcasts which have caused confusion and mayhem. The perpetrators rarely, if ever, identify themselves.

[Steve6443]

If I were Capt Kinzer's lawyer, I'd be inclined to cite Saudi Flight 163 as a reason why evacuation in case of a suspected fire should not be delayed. The whole actions of Allegiant are disgraceful and their culture of safety warrants a closer inspection......

[Richard W]

Tu.114 wrote:

In emergency, he is only measured by the result: did everybody make it out alive or not?


Isn't there a follow-up question - "Did everyone make it out uninjured?"? Emergency evacuations cause injuries.

[Una Due Tfc]

As soon as the word "emergency" is uttered, the captain is in charge, end of story. I'll help him/her anyway I can, but they're the boss.

He ordered the evac despite someone messing around on the frequency and potentially risking the lives of everyone on that plane. Good man.

If this situation is as it appears appears to us here, he deserves 6 figures, at least.

The freq is recorded in the tower. I sincerely hope they gave the recordings to the cops or his lawyers so they can interview suspects and try find out who endangered those lives. It's an ICAO mandate for all ATC tapes to be stored for a minimum of 30 days (remember that if you're ever in a sticky situation and you think they'll help you). Most places keep them far longer because there's so much memory available to do so on the digital recorders.

[B2N2]

Thanks for the additional info...
I think we shouldn't focus too much on the "voice" but more on the questioning of PIC authority in a situation like this.

[Airbubba]

this mob is another ValuJet just waiting to happen...the low fuel story with the management pilots flying is very interesting reading...

Well, there certainly is some common ancestry:

Before becoming Allegiant CEO in 2003, Maurice Gallagher co-founded ValuJet, another low-cost airline, in the 1990s. Like Allegiant, it was popular and growing, but the crash of a ValuJet plane in the Everglades in 1996 was the beginning of the end of that airline.

As Allegiant Air wavers, Pinellas airport and tourism industry cross fingers | Tampa Bay Times (http://www.tampabay.com/news/business/tourism/as-allegiant-air-wavers-pinellas-airport-and-tourism-industry-cross-fingers/2236895)

Some earlier discussion of recent Allegiant incidents on this PPRuNe thread:

It's funny no one has commented on all the issues allegiant airlines in the US is having. They appear to be on the same path as valuejet and worse then some of the budget Far East carriers talked about so much here. Their latest incident last weekend had their VP of flight ops flying a passenger flt to a airport that had been notam'd closed months in advance without enough fuel to divert to a airport 70 miles away. This VP is said to be highly critical of crews who are involved in the slightest incident including firing a Captain in June because he initiated a ground evacuation after both flight attendants and airport fire fighters reported smoke in the aircraft.

http://www.pprune.org/rumours-news/565220-allegiant-air-incidents.html

[peekay4]

The freq is recorded in the tower. I sincerely hope they gave the recordings to the cops or his lawyers so they can interview suspects and try find out who endangered those lives.
This is unclear from the transcripts, which seem to indicate that the request not to evacuate came from "Airport Command RF 2", i.e., one of the rescue fire fighters on the ground.

A Captain as PIC is in charge. But that does not mean that on Monday morning his decisions cannot subsequently be evaluated by anyone (management, FAA, etc.) if those decisions may have needlessly endangered passengers and crew.

Personally I think the FAA will not get involved here.

From a strictly legal perspective, IMHO the Captain has a very tough case since Nevada is an "at will" employment state. But Allegiant made enough procedural mistakes in firing him that I think both parties will play for a settlement.

Btw the Captain's attorney was FAA's chief trial attorney in previous life.

[phylosocopter]

Ahh if the other voice on the radio was a fire truck attending then that is a completely different matter, does not remove responsibility from captain but if captain were to make a judgement that fire truck has better info ie can see what they cant. Might be worth considering advice and certainly reasonable to give it.

[ddoth]

If it were a truck outside, it should have mentioned that it was observing no fire threat or that it was under control.
There was really any clear identification of who it was or what they were seeing.

The other question to ask is, what if the captain had listened and fire consequently ended up getting in the cabin and pax getting burnt or killed?

[autoflight]

It really does matter who made the call claiming eventually to be RF2. If it was genuinely a fire response vehicle, they only have visual externally, with no real knowledge of fumes within the aircraft. Therefore not qualified to venture an opinion.
If the calls came from the company, same situation, but probably increased liability in court as a result.
There are ways to positively determine the exact origin of the calls and the identity of the caller, so someone should be quite concerned with their own skin. Knowledgeable readers should not discuss the means of doing this for obvious reasons.

[llondel]

So why did RF2 not come back and explain why it was necessary to hold the evac? surely someone knows who was manning the RF2 transmitter during the incident and they could confirm what was said and why.

[Skeleton]

The Captain is in charge of the aircraft, period. He signed for it and it is his till he signs it back in. It's very important who said what to him, why they said it, and more importantly should they have said it. The Captain remained in command though and decided the situation demanded an evacuation which is exactly what he ordered.

Remember if he had taken the advice not to evacuate and the unthinkable had then occurred he would have been the one held ultimately responsible and you can bet your bottom dollar his employers would have held him responsible to.

Unless their are reasons we are not being told, which I highly doubt, sacking a man for carrying out his role as Captain is ridiculous. If there should not have been an evacuation that's for the FAA to investigate, advise on and apportion blame.

The whole thing smacks of double standards by the Airline.

[CONSO]

IF RF2 had said ' fire on port side- do not evacuate on port side ' or the equivalent- it might have been appropriate. But he/she didn't- and it wasn't

One can only assume RF2 will sooner or later have to stand up.

Thus the lawsuit !! :ok:

[TRF4EVR]

Ultimately, it doesn't matter whether he was "right" or "wrong" (insofar as those are even meaningful adjectives when your plane might be on fire.) What matters is that he was the PIC, and determined that it was time to evacuate. End of meaningful discussion. If we let this sort of second-guessing go on, it's not just bad for "us", it's bad for our passengers. The Feds famously have a "dual-mandate", in the US. That leaves the Pilots to be the ultimate advocates for Safety. We let this guy get cashiered for making a command decision, we've basically given up any meaningful authority on our own aircraft, forever. And they won't be giving it back out of the goodness of their hearts.

[autoflight]

Whatever information or instruction received over radio by the crew of an operating flight need not be acted upon by the captain if he can reasonably justify contrary choices. Where any instruction is received twice from an unidentified source, there exists substantial doubt about the authenticity when a callsign is reluctantly given on the third call.
If I had extreme doubt about the correct action, I might take some notice of information, regardless of the origin. Where the selected action is more obvious, It would be completely reasonable to ignore the particular calls as being just pure crap.
I am baffled about the sanity of company management who are sure going to be held to account!. I am reminded of a song:
"The municipal dunny dump was full up to the brim ..... The municipal dunny man fell in and couldn't swim ... And as he sank beneath the foam, you could hear the maggots cry .... There ain't no place like home" etc etc
Management seem a lot like this this bloke.

[Mach E Avelli]

Setting aside the probable criminal offence of transmitting orders aimed to confuse without proper identification or authority in an emergency of this nature, just what policy does this cowboy airline teach in simulator?
Assuming that they even DO simulator, surely they train crews to evacuate on the ground in the presence of smoke or fire?
As for a few ingratiate pax whining because the cabin crew yelled at them to get their miserable hides off the aircraft in case it blew up - you are fools to have flown with this mob in the first place, and bigger fools for not understanding why the cabin crew are really there.
So what these airline management morons are really saying to the Captain who took his years of training seriously, and acted on it in a real event is :" How irresponsible of you to risk minor injuries while conducting an approved and entirely appropriate procedure. You have brought unwelcome but deserved publicity to the airline so you are fired".
Perhaps CEOs and bean counters should write all aircrew training programs to reflect commercial priority over safety and try having the FAA approve them.

[stilton]

If that mysterious transmission was made by a fire truck or emergency
vehicle they should have clearly identified themselves as such and given the
reason for their recommendation not to evacuate.


And recommend is all they can do, the Captain is the ONLY individual
with final authority in an evacuation decision.


Since the transmitter never identified themselves I find it very unlikely
it was emergency services, why would they not do so ?


Seems a bit more nefarious to me :eek:

[peekay4]

Read the transcript:

2042:22 GC Be advised when you guys are making transmissions identify yourself first so everybody knows who's talking to who
2042:29 864 Yeah Allegiant 864 who's telling us not to evacuate
2042:34 Unknown Airport Command RF 2 I'm telling you not to evacuate yet
2042:37 864 All right

[golfyankeesierra]

Aside from the discussion whether the evac was necessary or not, I would like to say to those who think: "captains decision, end of discussion" that is certainly true at the actual moment. However that doesn't mean that a captain cannot be held accountable for his/her decisions afterwards.
As a captain you have enormous powers on board but that doesn t mean it cannot be accessed afterwards...

[Skeleton]

Golf,
No one I think is suggesting the Captain should not be held accountable, of course he should. But his accountability involves him making an informed decision as the Captain and not being instructed from the outside what to do.

[Capot]

Unknown Airport Command RF 2 I'm telling you not to evacuate yetThat sounds to me exactly like an RFFS Duty Commander (or equivalent) identifying himself as requested, and at the same time displaying a remarkable, but not untypical, exaggerated idea of his own importance.

I have met several such, in the UK and Middle East, who believe that they call the shots on what a Captain should do next, as opposed to offering information to assist a Captain, such as "Your starboard main landing gear is burning fiercely."

This attitude stems from the fact that so far as the actual fire-fighting, and rescue from inside the aircraft, are concerned, they are in command. But it takes careful training to make them understand where the Captain's responsibility ends and their's starts, and some never get it.

It is also possible that this person's behaviour was affected by his awareness, and maybe personal experience of the operational standards of the airline involved.

The company's decision to sack the Captain would seem to be on a par with its management standards, ie crap.

[Stuart Sutcliffe]

Quote:
"Unknown Airport Command RF 2 I'm telling you not to evacuate yet"

That sounds to me exactly like an RFFS Duty Commander (or equivalent) identifying himself as requested, ......
I have to disagree with you Capot.

I am in agreement with peekay4's post just a little further up. The convention used to list the radio transmissions could be improved by using some punctuation but I strongly believe it is indicating that the 'Unknown' person transmitting, not identifying themself, is telling 'Airport Command RF' to not evacuate yet, i.e. the transcript would be more clearly written as:

2042:34 Unknown: "Airport Command RF 2, I'm telling you not to evacuate yet."

[peekay4]

That's not quite my take. The transcript is ambiguous.

"Unknown" could mean "we have no idea who that was (even now)", or, "we don't know who that was, at the time of the transmission".

But to me it's strange that someone unknown would be telling RF2 specifically not to evacuate the plane, rather than asking the pilots not to evacuate the plane.

So Capot's scenario seems more likely.

We're only seeing part of the picture here. "Various parties" have presumably interviewed RF2 in person, and others on the ground, to see what happened that day.

It's an easy question to ask: "hey RF2, was that you on the radio?"

This RF2 business is potentially a big weakness for the Captain's case in a jury trial. But as I mentioned before, I think Allegiant also made a series of mistakes (and have a huge PR problem) so it's in everyone's interest to settle.

[Old Boeing Driver]

Was RF2 actually at the plane and able to observe the interior conditions, or was he/she in the tower, or somewhere else observing via binoculars?

It was the captain's decision,and a good one IMHO.

[Lonewolf_50]

I have to disagree with you Capot.

I am in agreement with peekay4's post just a little further up. The convention used to list the radio transmissions could be improved by using some punctuation but I strongly believe it is indicating that the 'Unknown' person transmitting, not identifying themself, is telling 'Airport Command RF' to not evacuate yet, i.e. the transcript would be more clearly written as:

2042:34 Unknown: "Airport Command RF 2, I'm telling you not to evacuate yet."The captain's decision to evacuate is his. I find this kind of outside interference in decision making a bad idea. If you are outside the plane, the best assistance you can give the captain is information that helps him arrive at a good decision. Trying to make decisions for him/her? As others have noted, a step in the wrong direction.

[Capot]

I strongly believe it is indicating that the 'Unknown' person transmitting, not identifying themself, is telling 'Airport Command RF' to not evacuate yet,Nope, I don't buy that.

If an unknown person wanted to give a "command" not to evacuate, he would address that "command" to the Captain, not to someone in a fire truck. Telling 'Airport Command RF2' not to evacuate makes no sense whatsoever.

In any event, the conspiracy theory of some senior company person suddenly appearing on the airfield as this emergency took place, and then acquiring a radio on the airport's ground operations frequency, and using it to issue anonymous orders to the aircraft Captain just doesn't stack up.

My money's on a Fire Chief with a misunderstanding of his responsibilities and authority, which is not to say that he is not totally competent otherwise.

[Old Boeing Driver]

2042:03 864 Yes right here we're going to be evacuating
2042:05 RF 864 roger
2042:07 Unknown 864 hold off on your evacuation please
2042:13 864 Who said to hold off
2042:15 Unknown Yes please hold off on your evacuation
2042:16 864 Yes who is this
2042:22 GC Be advised when you guys are making transmissions identify yourself first so everybody knows who's talking to who
2042:29 864 Yeah Allegiant 864 who's telling us not to evacuate
2042:34 Unknown Airport Command RF 2 I'm telling you not to evacuate yet
2042:37 864 All right
2043:01 864 Allegiant 864 why do you want us to hold
2043:17 864 We need answer please why do you want us to hold on the evacuation
2043:27 GC RF 2 Command safety ground did you copy Allegiant's transmission
2043:36 GC Ops 1 are you on St. Pete ground
2043:44 GC Okay are there any emergency vehicles any of the RF vehicles on ground frequency
2043:51 RF3 Affirmative RF 3 on
2043:53 GC Okay RF 3 on Allegiant 864 is requesting why do you want them to hold on the evacuation they need an answer please
2044:04 RF RF 3 give me one second I'll contact the man on the ground

864 says "All Right" and waits 24 seconds before asking why they should delay.

Then, he waits another 16 seconds before asking again.

Another 47 seconds elapse until the end of this info.

That's a long time to wait if something is happening in the cabin.

[peekay4]

That's a long time to wait if something is happening in the cabin.

Um, in this case, shouldn't the Captain talk to his own cabin crew to see what was happening in the cabin?

Did he? What did the FAs told him? "All clear!"? or "Smoke is chocking us to death!"? Or did the Captain made his decision in isolation?

Just more parts of the puzzle we don't have.

The full facts might completely be in favor of the Captain. Or they may throw big doubts about his claims in front of a jury. We just don't know.

Lastly, this incident happened at the tail-end of a tough labor action from the pilots's union. Did that affect anything, e.g., Allegiant's perception of the incident?

[Old Boeing Driver]

I agree with you.

I stand with the captain.

[gcal]

Given what I have read I would also stand with the captain.
My own personal take on it is that after I stopped flying I worked on the ground.
The times 'upwardly mobile' ground personnel would attempt to influence/pressure/question decisions made by flight crew were legion.
It was luck that, in those days, there were sufficient people with enough knowledge to not let them get away with it.
Or, perhaps, to point out to them that their selfish decisions may later backfire.

[Airbubba]

Lastly, this incident happened at the tail-end of a tough labor action from the pilots's union. Did that affect anything, e.g., Allegiant's perception of the incident?

I believe the Allegiant pilots are currently trying to get released from mediation to give the union leverage with a strike threat.

Traditionally getting fired during contract negotiations opened a chance for a return to work through the bargaining process.

In years past, pilot contract negotiations would drag out for months and years under the arcane rules prescribed in the Railway Labor Act of 1926 (as amended).

Almost always, some of the rah-rah union rabble rousers would go out and do something stupid to 'stick it to the company' and get themselves fired. They 'knew' that they would get their jobs back when the new contract was settled. The union would call these folks 'hostages' and 'making them whole' would be part of the final contract settlement, usually covered in 'side letters' to the tentative agreement.

Inevitably, a few folks who had been fired for stuff that had nothing to do with contract negotiations would wrap themselves in the union mantle and claim that they were terminated in retaliation for their legally protected union activities. Sometimes they would successfully return to work with the other 'hostages'.

I remember a colleague who embezzled thousands of dollars with phony overseas kids' tuition bills coming back after a couple of years flying night freight and later retiring from an airline based near the Barbecue Kitchen. The airline VP of Ops was in the same Boat School class and that helped get Hank included in the contract settlement.

Another guy got caught lying about his simultaneous employment at two airlines and got fired at both. He was able to later claim that he was 'on the bus in 1985' with United and got one of his jobs back with 'adjusted' seniority.

Not sure how this will play out at Allegiant. Times have changed, the pilots are working on their first contract and this union is not noted for representing the best interests of pilots in my opinion.

[twb3]

Quite aside from the firing, the apparent issue of a "don't evacuate" command by RF2 brings up the issue of the possible conflict of authority between the Captain's Part 91 FAR authority and the authority of the Incident Commander of the ARFF response to a situation. Can something be learned from this incident relative to that?

TWB

[two green one prayer]

Hi,
Is your dunny song yours alone or is there a link to it. Google is silent. It is far too good to be left to languish in the hallowed pages of prune.
Best regards,
TGOP

[Airbubba]

Quite aside from the firing, the apparent issue of a "don't evacuate" command by RF2 brings up the issue of the possible conflict of authority between the Captain's Part 91 FAR authority and the authority of the Incident Commander of the ARFF response to a situation.

It's been discussed recently here on other threads. I think it's the Part 121, not Part 91, pilot in command emergency authority that applies to this case:

§121.557 Emergencies: Domestic and flag operations.

(a) In an emergency situation that requires immediate decision and action the pilot in command may take any action that he considers necessary under the circumstances. In such a case he may deviate from prescribed operations procedures and methods, weather minimums, and this chapter, to the extent required in the interests of safety.

[Blues&twos]

Another confusing thing about the transmission
"Unknown Airport Command RF 2 I'm telling you not to evacuate yet"
is the use of the word "yet".
So, does the bloke want the evacuation to go ahead but not just at this moment or what? A nonsense and confusing call even if made with good intentions.

[parabellum]

Once you hear of smoke in the cabin the next image that comes to mind would probably be a 'flash over' fire. The transition from 'some smoke' to an inferno takes milli seconds and what would an outside observer be able to tell you if the fire was, say, in the galley?


https://www.google.com.au/search?q=flash+over+fires+in+an+aircraft+cabin&biw=1280&bih=544&tbm=isch&tbo=u&source=univ&sa=X&ved=0CDwQsARqFQoTCLfBvYiclskCFYWspgod-s8Kqg

[b1lanc]

Another confusing thing about the transmission
"Unknown Airport Command RF 2 I'm telling you not to evacuate yet"
is the use of the word "yet".
So, does the bloke want the evacuation to go ahead but not just at this moment or what? A nonsense and confusing call even if made with good intentions.

Even RF3's response is strange - "give me one second I'll contact the man on the ground". What the heck does that mean? Who on the ground? Is there someone on the ground near the AC? The whole emergency response seems uncoordinated and unprofessional.

[autoflight]

Captain has set in place the only reasonable remedy for the extreme harm that has been caused to him. This is going to be really serious for the airline. There will be big $ involved A simple negotiated settlement, a public apology and with other confidential terms may not be enough to satisfy him.
Can anyone suggest the likely court settlement amount, based on any previous cases? Multi million figures comes to mind. The airline would possibly collapse due no insurance company would then be in a position to offer affordable premiums.
The only reason to accept a negotiated settlement might be so that his fellow pilots can make orderly exits from the company. Hopefully they are already doing that. I wonder if they will be replaced with pilots of substance who also understand responsibilities of command, or by weaklings who will wait until the pax expire next time.
It is clear that any offer involving re-employment would have to be unacceptable.

[Sorry Dog]

What remedy?
Captain has set in place the only reasonable remedy for the extreme harm that has been caused to him. This is going to be really serious for the airline. There will be big $ involved A simple negotiated settlement, a public apology and with other confidential terms may not be enough to satisfy him.

Whoa...slow down there. While all that may seem like a possible outcome (of many since all us here don't really have the whole story) in practice civil lawsuits rarely work this way. First of all its going be quite a while before you even get to a point where settlement negotiations might become serious... you discovery, depositions, motions, response to motions, counter motions, continuances, etc, etc. and that's all before you even get to jury trial (if this case is even eligible for that).

Even if Allegiant knows that they are playing for a settlement they will still stall for a few years worth of time while they set aside money to charge off in way to reduce impact on shareholders and reduce taxes. If any of us remember in a year or two you can go check the little fine print in the 10k or other SEC filings since they are required to disclose probable payments from legal actions.


Anyway back the incident itself... I am wondering what the deal is when the captain questioned why he should wait to evac and GC also repeated the call to answer that question and in 45 seconds they received no response. That same person was awfully quick to respond a minute earlier when they heard the captain say evac. I mean information like that is beyond frustrating. I can just imagine that the captain could really be on the fence whether to evac or not but with lack of info it's better to be safe on side so he starts to call it...but then, this unknown person chimes in and can maybe give the crew more info to help them guide their decision... So the captain asks why... he's asking for help (why shouldn't I do this)...and he even wants to know enough to wait quite a while for an answer while temporarily obeying the request. When no answer comes then that whole 60 seconds or more of precious time was completely wasted. After that I can easily imagine the -captain right after that is saying eff it to himself...out of frustration and in his mind immediately goes back to his prior action before the distraction...and now the crew may feel even more rushed now that they just lost another minute to evac... who knows... maybe with more time the evac could have been done more orderly and there would have been no or reduced injuries.

I really hope a follow up is done of this situation as a learning tool for air and ground crews. I mean what if this plane had ultimately burned up... the captain would be a hero there would be a witch hunt being done on unknown RF2...whoever that turns out to be... since the danger of what he did would be much more obvious.

[Chris2303]

I'm surprised that nobody has mentioned the possibility of the unknown transmission coming from some unauthorised person with a handheld transceiver?

[phylosocopter]

Setting aside the rights and wrongs of this case , it seems that this situation (fire,smoke after setdown) is very serious and the person in the firetruck can see stuff tht the pilot cant. why is there not some SOP that does include getting this information to the captain in an organised and structured manner? I am not suggesting "dont evacuate" but some structured keywords to describe heat, where and threat level

[Capot]

I'm surprised that nobody has mentioned the possibility of the unknown transmission coming from some unauthorised person with a handheld transceiver?I'm not; that's in the realms of conspiracy fantasy. Who would such a person be, why would he identify himself as "Airport Command RF 2", what would his motives be in saying "Airport Command RF 2 I'm telling you not to evacuate yet".

Please don't try to persuade us that a manager from the airline just happened to be hovering around airside watching the incident unfold, just happened to have a handheld on the right frequency, and decided to call himself Airport Command RF2 so that he could prevent an evacuation and save a bit of money at the possible expense of passenger and crew lives.

And if your theory is that someone else did it, who? why? etc etc.

It was someone from the RFFS, probably the Duty Commander or equivalent, aka Fire Chief, and my guess is that he said it just before getting off the truck at the scene, hence the words "he's on the ground" or whatever it was. From what he could see he probably thought it was justified, but he should not have framed it as an instruction which he was powerless to give, he should have offered it as advice, WITH REASONS. The word "yet" may have meant "I'm taking a closer look, hang on". None of which justifies the way it was done, but may well explain it.

[despegue]

So why on Earth are the Allegiant crews still flying instead of refusing to operate until their colleage is reinstated and formal, public apology given?!?!

All it takes is one day of disruptions and management WILL succomb to crew demands. Especially for a thing like that.
It is the responsibility of the crews to insure that Management do not overstep their responsabilities and threaten the Safety of operation and chain of Command and Hierarchy.
it is YOUR DUTY AS OFFICERS TO STOP MANAGEMENT TO THREATEN YOUR COMMAND POSITION.

[RAT 5]

it is YOUR DUTY AS OFFICERS TO STOP MANAGEMENT TO THREATEN YOUR COMMAND POSITION.

What so many forget is that tomorrow it may be you. "Let's not rock the boat" is appeasement.

[peekay4]

I noticed the union is not representing the Captain -- he is suing Allegiant on his own.

The meat of the suit is very tricky. US FARs are regulations, not law. Only the regulator (FAA) can enforce FARs, and litigations normally go through the NTSB administrative law process.

A private individual cannot sue another private entity in a State Court on the basis of FARs, e.g., to enforce FARs or to allege interference with PIC authority under 121.533.

So many if not most the Captain's arguments in the civil suit may be thrown out by the Nevada court on the basis of jurisdiction alone.

Another complication is that Nevada is an "at will" employment state. Reading through the suit, I can't find any constructions to specific alleged violations of state employment law. E.g., there is no "Allegiant violated employment law under Nevada Revised Statutes xxx.yyy due to zzz", which is troubling.

The strongest part of his case might be for defamation, as Allegiant seem to have made some procedural errors when firing him.

[RatherBeFlying]

My sneaking suspicion is that the RFFS radios are installed in the trucks and that when RF2 exited his truck to examine the scene from closer up, he did not have a handheld; so was out of communication with the pilots.

Somebody else in the truck was covering for his boss and did not want to say anything his boss would take offense over :mad::}:mad::}

[Capot]

RatherBeFlyingI couldn't agree more.....hang on, I just did..

he said it just before getting off the truck at the scene, hence the words "he's on the ground"

[bud leon]

phylosocopter: Setting aside the rights and wrongs of this case , it seems that this situation (fire,smoke after setdown) is very serious and the person in the firetruck can see stuff tht the pilot cant. why is there not some SOP that does include getting this information to the captain in an organised and structured manner? I am not suggesting "dont evacuate" but some structured keywords to describe heat, where and threat level

If that transcript is indeed all that was communicated, and not a truncated version, it is a very poor example of fireground or incident communications. What you would normally expect to happen is that a status report is communicated by the first arriving responder and that updates would be communicated when the status changes. One real problem for airport firefighters is that they get so little real world experience.

The actual communications are also cryptic, ambiguous and deficient in information. There is a tendency to rush RT communication during emergencies, but really only a few more seconds of talking can prevent significant problems.

Confirmed information is of critical importance in emergency response, but communication, and command and control confusion are common problems identified in debriefs.

[ACMS]

It's not up to anyone outside to start OR stop an evacuation.

They can give vital information to the commander in order for him to make an informed decision BUT it will always be the decision of the Aircraft commander or his delegate to make any evacuation command.

End of story.

[WillowRun 6-3]

Caveat first: I'm not bothering to read the complaint. Or to go digging into Nevada case law.


Employment at will as a matter of state law, even in those states which hold it within the realm of the highest and most worthy of legal principles, is not a head-to-toes defense. As a prior poster impliedly noted, violation of any applicable employment-related law in effect "trumps" the at-will doctrine. More importantly for this matter, violation of a public policy (yes, that phrase is tricky to define) also is grounds to set the at-will doctrine aside. Thus, IF Nevada law indeed is the applicable law and IF it recognizes aviation safety rules as such a public policy, for example in the form of FAA regulations, the at-will doctrine will see lots of play in lots of ink spilled by defense lawyers, perhaps, but technically it is not a winning defense (that is, IF the pilot can show his actions consistent with the applicable safety rules). :=


Besides, the pilot retained a former highly-ranked FAA attorney. As a defense counsel, this would give me pause in assuring my client that much money will have to be spent (whether directly or through an insurer) on motion practice and discovery, prior to having to fish or cut bait ("settle", for the non-lawyers reading).


As for the wisdom of the pilot's actions, I'm deferring to the people who know what they're talking about . . .

[RatherBeFlying]

Most likely the eminent lawyer is retained on a contingency fee. Lawyers don't take cases on contingency unless they think there is a much better than even chance of collecting :E

[Blind Squirrel]

Allegiant had better hope that its lawyers do manage to get the case dismissed on procedural grounds. Because if it gets anywhere near a jury, Capt. Kinzer is going to be the next owner of the airline.

[peekay4]

... and IF it recognizes aviation safety rules as such a public policy
It doesn't. That's the point. FARs are federal rules, yet even Federal District Courts (much less a State court) will not consider FARs as part of a civil case on jurisdictional grounds. The case law is pretty clear on this one.

A couple of years ago there was a similar case where a Captain of a cargo ops was fired because he requested a different alternate for safety reasons. That required more fuel and offloading of some cargo. Management wasn't happy and fired him.

The Teamsters brought a wrongful termination civil suit on behalf of the Captain before Federal Court on the basis of public policy and PIC authority under FAR 91.3. The U.S. District Court threw out the case on jurisdictional grounds.

You can bet one of the first filings from Allegiant will be a Motion to Dismiss for the same reason.

The case was Airline Professionals Association, Teamsters Local Union No. 1224 v. ABX AIR Inc.

[WillowRun 6-3]

Just a couple of points, since the subject has been opened...


First, the ABX case was filed in federal district court in Ohio. Although efforts to locate the case report failed, even without reading it, if the court applied any State's law, it surely would have been Ohio law, not Nevada. The point is, the place of refusal to violate safety rules, as a public policy exception to the at-will doctrine, varies by State. As noted earlier, the forum isn't the place for briefing Nevada law, but I can say the result under Ohio law would not be controlling.


Second point, the facts of the ABX pilot employment termination (even disregarding the different State law) were quite distinguishable from the key fact here - smoke in the aircraft, and an emergency evacuation. While the pilot in the ABX case plainly did rely upon safety concerns to justify his exercise of authority, at least from the news reports surrounding the termination and the union's lawsuit, there is no indication that an emergent situation confronted the PIC.


There is a further technical point about whether a dismissal for failure to state a claim is jurisdictional - actually it is not - but by now, I'm entitled to at least a few "you get paid by the word" digs, I suppose (actually, also not so).

[peekay4]

First, the ABX case was filed in federal district court in Ohio. Although efforts to locate the case report failed, even without reading it, if the court applied any State's law, it surely would have been Ohio law, not Nevada. The point is, the place of refusal to violate safety rules, as a public policy exception to the at-will doctrine, varies by State. As noted earlier, the forum isn't the place for briefing Nevada law, but I can say the result under Ohio law would not be controlling.

I guess you don't know how courts work. :hmm: It's a Federal District Court. It's not going to apply Ohio's law, or Nevada's law, or California law, or Texas law. There is a reason why we have State courts and Federal courts!

And maybe you should actually read the court decision before commenting further.

Airline Professionals Association, Teamsters Local Union No. 1224 v. ABX Air, Inc. (http://law.justia.com/cases/federal/district-courts/ohio/ohsdce/1:2012cv00569/156087/20/)

As I wrote in my initial post, a private individual cannot sue another private entity for relief on the basis of FARs. The relevant claims in APA vs ABX was thrown out precisely for that reason:


ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
...
In Count One, the Union claims that by requiring Captain Homme to admit
wrongdoing or face termination, ABX violated: (1) the “public policy of the
United States as set forth in the FARs”; (2) “a crewmember’s obligations under
the FARS”; (3) ABX’s FOM and AOM; and (4) “the crewmember’s obligations
under the [CBA].”
...
1. No Private Right of Action Exists to Enforce the FARs.
...
ABX correctly argues, however, that the Union’s alleged cause of action
pursuant to sections 91.3(a) and 121.537(e) is not proper because
no private right of action exists to enforce the regulations. “Federal
regulations cannot themselves create a cause of action; that is a
function of the legislature.” Smith v. Dearborn Fin. Servs., Inc., 982 F.2d
976, 979 (6th Cir. 1993) (citing Stewart v. Bernstein, 769 F.2d 1088,
1092-93 n. 6 (5th Cir. 1985)).
...
Although the Sixth Circuit has not squarely addressed whether the FARs
can be enforced by a private right of action, a developing consensus among
the federal courts hold that a private right of action does not exist.
See Brown v. Byard, 600 F.Supp. 396, 397 (S.D. Ohio 1984) (“The Federal
Aviation Act clearly does not expressly provide for a private cause of action
for violations of the Act.”);
...
Thus, to the extent that Count One of the Union’s Amended Complaint is
based on a violation of the FARs, that claim is dismissed.

[WillowRun 6-3]

Actually, peekay.....where to begin?
First, as any rank-and-stoked first year civil procedure student would gladly remind you, federal district courts apply state law all the time - it's called a diversity jurisdiction suit. And your inaccurate statement, by itself, might not bear calling out, but in this instance, you earned it: the Allegiant case was filed in Nevada state court - and if diversity jurisdiction applies, and the defendant "removes" (in effect, transfers even over the plaintiff's objections) the case to federal court, inasmuch as the claims stated in the complaint all are state law claims....you can draw the conclusion. I hope.


Second, I don't have to read the ABX opinion to be able to tell the difference between using public policy, in the form of FAA safety rules, as an exception to the at-will doctrine on the one hand, and on the other hand, basing a claim under the FARs themselves. That is what the court means about rejecting a private right of action under the FARs. The claim for wrongful termination is a state law claim for wrongful termination; and my view (unrebutted by your condescension) is that a public policy exception might well exist under Nevada law - as I said, I don't know - but if it does exist, it would not require, and in fact would have nothing to do with, the existence or non-existence of a private right of action under the FARs.


I guess PPRuNe convention holds it acceptable to fight fire with fire (pun here only unconsciously unintended): so, I hope you fly (or whatever you do professionally) better than you can discuss legal issues in front of a professional, but non-legal internet forum audience.

[peekay4]

federal district courts apply state law all the time - it's called a diversity jurisdiction suit
Um, we were specifically talking about APA vs. ABX Inc. As any rank-and-stoked first year civil procedure student would also gladly tell you, application of State law is completely irrelevant in a case filed in Federal court seeking relief under Federal statutes.

Application of State law under diversity jurisdiction is a complete red herring here and you know it. The Union sought relief pursuant to the RLA and the Declaratory Judgment Act. The Federal District Court wasn't going to make decisions based on Ohio law.

As for the rest, we will just have to wait and see how the court case will proceed.

[CONSO]

It's a Federal District Court. It's not going to apply Ohio's law, or Nevada's law, or California law, or Texas law. There is a reason why we have State courts and Federal courts!

NOPE i it depends on the type of case involved - In some cases the fed court MUST follow state law even from another state.:ugh:

Sit back and watch the blinking lights !

[peekay4]

@CONSO

See above. Completely irrelevant.

Maybe you guys/gals should actually read APA vs. ABX Inc. instead of making incorrect assumptions.

[WillowRun 6-3]

Like two ships passing in the night. And neither of them is the Red Herring.
Peekay4, maybe you thought the context was limited to the ABX case in which, as you note, federal subject matter jurisdiction existed (it was an action for injunctive and declaratory relief under federal law, you are correct, sir). However, actually the discussion here was broader than the narrow gauge you have insisted upon. That is, the pilot in the Allegiant case has filed a suit in state court in which claims are asserted under Nevada state law. The specific point was whether or not Nevada, as a state adherent to the at-will doctrine, would countenance such claims. In that context - not limited to the ABX case at all - the dismissal won by the defendant in the ABX case is not really pertinent. Despite the ruling in the ABX case -- that a claim for injunctive and declaratory relief under the federal statute failed because there is no such private right of action under the FARs -- Nevada, which almost certainly has some public policy exceptions to the employment at-will doctrine, still could recognize the FARs as a source of public policy (for purposes of wrongful termination claims under Nevada law).

Anyway, at least no one has claimed that this drift of the thread will not be complete until someone tries to explain the derivation of the phrase "red herring" (it may not be printable in a family-friendly forum such as PPRuNe, regardless. . . )

[ipsatex]

The case has been removed to Federal Court pursuant to 18 U.S.C. sec. 1441 and is based upon diversity jurisdiction. Therefore, the Federal Court will apply state law when determining the claims raised in the Plaintiff's Complaint. While the regulations cited in the Plaintiff's Complaint would preempt any state law that conflicts with said regulations, nothing in the regulations appears to prohibit an airline from terminating an employee based upon his or her actions or omissions in operating an aircraft. Having said that and based upon the allegations contained in the Complaint, it seems as though the Plaintiff is in the catbird seat. The Defendant would be crazy to let this case get to a jury.

[peekay4]

Court records still show the case at the Nevada District Court for some reason and I can't find any petition or notice of removal.

Nevertheless, removal implies there have been monetary discussions between the Captain and Allegiant (e.g., before the case was filed). Diversity requires the damages more than $75,000 -- a very low bar in this case -- but as a matter of routine State filings only specify "more than $10,000" which by itself is not sufficient for removal.

[Sorry Dog]

Having said that and based upon the allegations contained in the Complaint, it seems as though the Plaintiff is in the catbird seat. The Defendant would be crazy to let this case get to a jury.

This would seem to be the likely way it would play out, except it on the defense side it would definitely be worth the delaying action and possibly even some luck for them to try a few motions mentioning the arguments presented by peekay. It's worth noting that even if the ABX case is cited by defense, it is at best only a supporting argument and easily rebutted in a response. However, I would think it would be in the interest of Allegiant (and their council's legal bill) for them to drag out discovery and pre-trial procedures for a year or more and then worry about settlement.

They way he was dismissed is going to be a problem for the defense as the reason for his dismissal is given as lack of performance and that rationale seem to be quite suspect which will give the complaint plenty of latitude to suggest other reasons for the dismissal, any of which may be damaging under Nevada law.
Besides to suggest the application of Federal regs have no relevance under state employment law, especially when safety is involved, could possibly mean that many other professions from coal mining to medicine would be greatly affected. I doubt federal courts would want to start a string of precedence of employees being fired because... say for example they would not be willing to violate an OSHA statute...

[peekay4]

I doubt federal courts would want to start a string of precedence of employees being fired because... say for example they would willing violate an OSHA statute...

There are many other ways employees are protected from being forced to break safety regulations or force termination.

E.g., AIR21 (49 U.S.C. §42121) (http://www.whistleblowers.gov/acts/air21.html) provides whistleblower protection status.

If a company is pressuring pilots to violate FARs and compromise air carrier safety, it may be advisable for a pilot to contact a lawyer (through a union if applicable) and immediately report such conduct to the FAA. The pilot will be protected under AIR21 against any retaliation (including termination).

[Sorry Dog]

If a company is pressuring pilots to violate FARs and compromise air carrier safety, it may be advisable for a pilot to contact a lawyer (through a union if applicable) and immediately report such conduct to the FAA. The pilot will be protected under AIR21 against any retaliation (including termination).

Sound advise... except for 2 big things...

1. At the time of the emergency... the Captain should not be having to worry about if he is covered by whistle blower laws (Which recently have not always worked at intended) nor should he be worried about his employment situation period... Your statement about the proper way for the captain to address safety concerns highlights the exact worries that half the comments in this thread are all about.

2. Even if it's not urgent situation, and there are laws against retaliation for voicing safety concerns... one still must take into account the risk one incurs from doing so.... significant career risk there always is...

...Mr. Kinzer's lack of success in finding new employment is a great example of that.

[WillowRun 6-3]

As to the 75 thousand dollar threshold, there need not have been discussions about the damages at issue in the case - and typically, with such a contentious firing the lawyers would rather poke their own eyes out than have their clients become aware that they had even a brief conversation of a co-operative nature with opposing counsel (and as to contentiousness here, the captain didn't retain just any old contingency trial lawyer and this seems directly reflective of the high temperatures on both sides). Not saying it did not happen or is impossible, but that it was not a necessity: the defendant can meet its legal requirement for federal court diversity jurisdiction (via "removal") even if the complaint itself formalistically only alleges damages in excess of 10 thousand (among other reasons, the complaint includes a claim for punitive damages, and any wrongful termination claim carries with it (as a yardstick for damages) the contractual value of the plaintiff's employment). Not clear as to whether the case actually was removed or not, but at the risk of legal cliché, defendant ought to remove it, for all sorts of reasons about the differences between the ways federal trial-level courts operate as compared to state courts.

On the issue of safety rules and whether a wrongful termination suit under state law can or should be a vehicle to uphold the importance of such rules....a prior post mentioned "preemption" and without spilling a ton more electronic ink, IIRC the idea that even using federal safety regulations (by OSHA, or FAA, or the NRC) as a predicate for any state's public policy exception to the employment at-will doctrine can be met with a preemption defense. At the risk of legal over-simplification, the defense argues that because federal law (including administrative regulations) occupies the entire field, a state court cannot even rule on a claim like the ones in the captain's complaint, or otherwise interpret federal rules. Not saying it always is a winning defense but (IIRC) it does get litigated. (And provides an example of why the defendant will prefer to be before an Article III federal district court judge, in preference to any state court.)

Last, about Section 42121 - and without drilling into a probably-overly-abstruse parsing and construction of the statutory terms - this captain isn't really within the paradigm of the whistleblower principle. He didn't oppose or report a safety violation, nor did he testify in a suit on behalf of someone who did. Rather, he acted in conformance with a safety rule. Not saying AIR21 is a bad law but, not convinced it contains the answer to the evident gaps in the state of the law, insofar as the type of claims this Allegiant captain has filed.

Thanks for the measured dialogue, for which PPRuNe is so famously and vastly (if not always) known . . ..:ok:

[peekay4]

On AIR21.

The Captain wasn't fired in an instant. He supposedly had several conversations with Allegiant after the incident, and he was fired after "repeatedly" stating that he would again evacuate the aircraft if presented with a similar situation in the future.

During this period, if he felt pressured by Allegiant to abandon his PIC obligations under FARs or face disciplinary action (likely including termination), then he could have formally filed a with the FAA about his safety concerns, and give notice to Allegiant of this complaint.

By doing so he might have gained AIR21 protections in addition to other remedies available to him.

[WillowRun 6-3]

The development of whistleblower protections in statutes and statutory terms is way, way beyond the scope of the thread - but I agree with and appreciate your post, peekay4. Clearly if the facts are as you have indicated, then the Capt's legal position indeed would have been squarely, I mean right down the middle of the strike zone, within the zone of interests sought to be protected by AIR21. So . . .

. . . I suppose a subject for discovery, particularly deposition, would be the captain's thought process about why he elected not to avail himself of those protections. Once again, conventional litigation in a court of law will prove to be a most inefficient means of getting at the underlying issues in the particular situation - yeah money and intangibles will be bought, sold and paid for, but the larger interests invoked -- or called into view -- by the disputes will be mere litigation wallflowers. Too bad no one has figured out how to move the system toward "interest mediation" - resolution of the case or controversy, like ordinary mediation, but with policy or procedural reforms mandated by the outcome, akin to interest arbitration.

Back to the ABX litigation you mentioned earlier, for a second. . . that suit was brought by the collective bargaining representative of the pilots of that air carrier. Under the Railway Labor Act. Do you think the course of such lawsuits (as a specific example), and the generally antediluvian nature of cross-ties and steel rail technology as compared to today's complex approaches and the technological complexity of air carrier aviation overall (as a general point) signal that the time is upon the U.S. to move aviation labor law out of the steam engine era? (I am indeed aware of the puppy-tail-chasing machinations of the Congress on something as relatively straight-forward as FAA re-authorization, but, hey, it doesn't hurt to ask.)

Cheers! (and Keep Your Eyes on the Sky . . .)

[b1lanc]

This would seem to be the likely way it would play out, except it on the defense side it would definitely be worth the delaying action and possibly even some luck for them to try a few motions mentioning the arguments presented by peekay. It's worth noting that even if the ABX case is cited by defense, it is at best only a supporting argument and easily rebutted in a response. However, I would think it would be in the interest of Allegiant (and their council's legal bill) for them to drag out discovery and pre-trial procedures for a year or more and then worry about settlement.


Sadly true - who has the deeper legal pockets - motion to postpone after motion to postpone - delay after delay - rack up legal bills. Lawyers will get paid regardless. Worse, the entire episode may very well depend on the judge that hears the case and which political party appointed said judge (as I have learned the hard way twice). Unfortunately, case law did not matter. Political ideology of the presiding official determined the outcome.

[No Fly Zone]

I'd bet my ruined pension that there is a Whole Lot More to this story than has been reported thus far. I do not know why a pip-squeak like Allegiant has so many problems, but most of them sound like in-house politics to me. Very small airlines are ALWAYS suspect for safety issues, but that just not the sense that I get about Allegiant. As a famous ULCC their neck is always on the chopping block, I firmly suspect that the vast majority of thiere problems are in-house, management-pilot issues, safety being mentioned only when they cannot think of anything else.
For the record, I do NOT know who is right or wrong in this case and in several others. Also for the record, I darn sure will NOT fly a carrier that cannot treat its pilots fairly and also provide some measure of dignity for their customers. ONCE, !about 2.5 years ago, was one too many times; perhaps the worst flying experience of my life (I've been flying for >60 years). Horrible! It will be the :mad: before I give this carrier another :mad:nickle of my money. Every. Despite some trivial influence toward keeping some competitive route fares a bit lower, seeing this miserable airline imitator go :mad: would not bother me at all. The FAA should have revoked their Part 121 operating ticket before their first flight. At best, they are :mad:SOBs, looking only for your last bit of pocket change; if you have any, these :mad:will find it. :ouch:

[Slippery_Pete]

If you had a choice of
a) 99% chance of evacuating with a couple of broken arms and legs (and no real fire), or:
b) 1% chance of 20-30 people burning to death because of a delayed evacuation

Most pilots would, and should, choose option (a) every time.

Yes, evacuations have their risks - but better to evacuate and then perhaps regret doing so, than regret not evacuating and have a bunch of corpses on your hands.

The management are setting a very dangerous precedent - not just legally against the pilot, but also safety wise for every other Captain in the company.

Seems the management pilots at Allegiant need to worry less about crucifying complex decisions in a very difficult, time pressured environment, and worry more about taking enough fuel for their own flight.

[bubbers44]

If you had a choice of
a) 99% chance of evacuating with a couple of broken arms and legs (and no real fire), or:
b) 1% chance of 20-30 people burning to death because of a delayed evacuation

Most pilots would, and should, choose option (a) every time.

Yes, evacuations have their risks - but better to evacuate and then perhaps regret doing so, than regret not evacuating and have a bunch of corpses on your hands.

The management are setting a very dangerous precedent - not just legally against the pilot, but also safety wise for every other Captain in the company.

Seems the management pilots at Allegiant need to worry less about crucifying complex decisions in a very difficult, time pressured environment, and worry more about taking enough fuel for their own flight.

Not evacuating because of inconvenience to the company would be a good reason to fire the pilot for not using good judgement.

[plhought]

After all this hooplah...

Have we actually even figured out where the smoke was coming from? I understand a pilot shut down an engine but had no luck?

[peekay4]

That's another "complicated" part of the story since we don't have all the details.

Per Allegiant's FAA filing, mechanics who examined the aircraft & the engine afterwards found no discrepancies at all. Apparently there was no evidence of fire, and possibly there was no smoke. The source of the smell reported by the Flight Attendant remains unknown.

[mary meagher]

Thank you, gentlemen, for your learned exposition of the law - which seems to thrive on a United States of Confusion! I especially relish the disclosure of the relevant railroad legal angles that can be used to waft smoke over the aviation procedures....

Going back briefly to the possibility of the station fire crew asking the pilot to stand by evacuating the aircraft, notwithstanding the possibility of smoke in the cabin, this took place, did it not, at St. Petersburg/Clearwater in Florida?
A sleepy place when I was there....how often is SP/C fire service called into a genuine emergency?

A few years back, at Kerry International Airport, Eire, I was informed by the tower that my aircraft was number one to land, and "Air Lingus, you are number two behind the Supercub!"....

So of course I kept pedalling like mad, and after landing safely and rolling out at a walking pace, was caught by a crosswind gust, and ended tail in the air in a bog, while Air Lingus had to go around, and around....

The Airport Fire Service was so excited to AT LAST have a genuine emergency to deal with, after all those years and years of practice, they came dashing up and intended to squirt foam all over my pride and joy.
"Don'T " I shouted, "Its not burning! Just help me to put it right side up and we'll push it to the apron". The fire service guys were so hyped they were actually trembling, but magnificently refrained from squirting their foam.
Eventually Air Lingus was able to land, and no harm done to anyone. And in fact there was no damage to my aircraft, as it was a very slow arrival into a very soft bog!

How much experience do smaller airports actually have for their firecrew to make sensible decisions when they are actually presented with an emergency? And it is even less likely that major airport firecrew will have any actual experience of life threatening emergencies.

Certainly not enough to be able to judge when to countermand a pilot's decision to evacuate. The rule should be well published. They can only inform, not command.

[SLFguy]

The fire service guys were so hyped they were actually trembling, but magnificently refrained from squirting their foam

Jesus! What the hell were you wearing??!

[Kolossi]

Mary, your post as always was eminently sensible, but I have to say SLFGuy, that gave me a genuine "Laugh out loud" :ok: :D :D :D

[RatherBeFlying]

If you had a choice of
a) 99% chance of evacuating with a couple of broken arms and legs (and no real fire), or:
b) 1% chance of 20-30 people burning to death because of a delayed evacuation

It's the combustion byproducts (CO, HCL...) that can incapacitate in seconds. Demise from inhaling toxic fumes generally precedes combustion.

The real question in considering evacuation is less the state of the fire 90 seconds from now than the survivability of the cabin atmosphere 90 seconds from now.

[Slippery_Pete]

Yes, completely agree RBF.

The charred remains may be a secondary outcome.

The PIC really needs to think which of those two scenarios they'd rather be justifying at an inquest.

It's the combustion byproducts (CO, HCL...) that can incapacitate in seconds. Demise from inhaling toxic fumes generally precedes combustion.

The real question in considering evacuation is less the state of the fire 90 seconds from now than the survivability of the cabin atmosphere 90 seconds from now.

[Tankertrashnav]

Sounds like an outfit to avoid

Not if you're an investor.

As the old saying goes, if you think flight safety is expensive, try having an accident!

[CAPTDOUG]

Allegiant pilots have a union and are under the Railway Labor act..And in the RRLA there is a arbitration process that over rides the court system.. Its sad but the courts will rule that the pilot in this case must follow the RRLA and go thru the process.. Arbitrate it... Federal Courts have done this many times before..

[wanabee777]

Labor hamstrung by the Railway Labor Act of 1926 and extended to the U.S. airline industry in 1936.

This needs to change!

[WillowRun 6-3]

@CAPTDOUG & wanabee777
Case from Hawaii: Hawaiian Airlines v. Norris, 1994 (findlaw link: HAWAIIAN AIRLINES, INC. v. NORRIS | FindLaw (http://caselaw.findlaw.com/us-supreme-court/512/246.html))
I believe that the U.S. Supreme Court's ruling in Norris, that the RLA does not necessarily require an airline pilot, who claims he or she was discharged from employment because they had been a "whistleblower," to proceed only through the RLA's arbitration dispute resolution system, is still "good law." Meaning unlike Magnum whose run ended (except in syndication), the ruling in Norris, more than 20 years later, is still the law in the U.S.
(If there is a later case, which I have missed, changing the law, after Norris, well, this legal advice is worth what you have paid for it!):cool:

[peekay4]

The RLA situation with Allegiant is a bit more complicated since (I believe) there is no existing CBA between the pilots and Allegiant, so the Captain cannot rely on some rights customarily written into CBAs.

Not being a labor expert I'm not even sure what the minor dispute process is without a CBA. Anyone know? This may have been an additional factor of why the suit was filed in Nevada under state law instead of in Federal court under the RLA.

[CAPTDOUG]

CAPTDOUG & wanabee777
Case from Hawaii: Hawaiian Airlines v. Norris, 1994 (findlaw link: HAWAIIAN AIRLINES, INC. v. NORRIS | FindLaw)
I believe that the U.S. Supreme Court's ruling in Norris, that the RLA does not necessarily require an airline pilot, who claims he or she was discharged from employment because they had been a "whistleblower," to proceed only through the RLA's arbitration dispute resolution system, is still "good law." Meaning unlike Magnum whose run ended (except in syndication), the ruling in Norris, more than 20 years later, is still the law in the U.S.
(If there is a later case, which I have missed, changing the law, after Norris, well, this legal advice is worth what you have paid for it!

Your not talking apples and apples.. Its called Air21 and it is a whistle blower. BUT it has to happen prior to a pilot being punished not after if the legal system is to have any power.

Also let it be known that RLA covers all airline pilots regardless if a Union is on property..As in the case of the Allegiant Captain I have heard that their union is giving him the cold shoulder.. So much for paying his union dues....

[Blind Squirrel]

A few years back, at Kerry International Airport, Eire...

So they have services to the People's Republic of Cork, then? :p

[peekay4]

Nevertheless, removal implies there have been monetary discussions between the Captain and Allegiant (e.g., before the case was filed). Diversity requires the damages more than $75,000 -- a very low bar in this case -- but as a matter of routine State filings only specify "more than $10,000" which by itself is not sufficient for removal.
So as predicted, it came out in court filings that the Captain had demanded $3 million from Allegiant in pre-litigation discussions. This amount obviously meets the dollar threshold for removal from Nevada State court to the U.S. District Court.

Interestingly (for you legal types) Allegiant's motion to remove was not based on diversity, but solely on the argument that the U.S. district court has original jurisdiction. This could backfire on Allegiant.

Also as predicted, Allegiant filed a Motion to Dismiss largely based on arguments stated earlier in this thread including:

Only the FAA has the right to seek remedy under FARs
Nevada State laws are preempted by Federal laws
The Captain forfeited his Federal remedy by not pursuing an AIR21 WPP complaint

Maybe the lawyers are reading this thread? :rolleyes:

Among others, Allegiant argues that Nevada does not have a public policy prohibiting termination of at-will employment based on compliance or non-compliance with FARs.

Allegiant also made some arguments based on the Airline Deregulation Act, which was not very convincing.

Unfortunately for us spectators, there have been no further info from on what actually happened that fateful day.

At this point, the arguments from both sides have lots of holes in them.

The Captain's lawyers want the case to be remanded back to Nevada state court and/or decided under Nevada labor laws. Allegiant's lawyers want the case dismissed, or failing that, for the case stay in the U.S. district court and be decided under preempting Federal laws.

And so the saga continues...

[Airbubba]

Don't know if it's related but looks like one of the senior Allegiant managers just jumped ship (or walked the plank :confused:):

January 15, 2016 - 5:33pm

Allegiant Air COO abruptly quits

By Richard N. Velotta
Las Vegas Review-Journal

Steve Harfst, Allegiant Air's chief operating officer since December 2014, abruptly resigned Friday.

The company offered no details of Harfst's departure beyond a four-paragraph statement that noted the resignation was effective immediately.

"We thank Steve for his contributions to Allegiant," Maurice Gallagher, chairman and CEO of Allegiant Travel Co., said in the statement announcing the departure. "We look forward to continuing his efforts to strengthen our operation."

Prior to joining Allegiant, Harfst was the chief operating officer at IndiGo Airlines based in New Delhi, India.

The Allegiant statement said the company would "use this leadership change as an opportunity to refocus on operational needs and areas for improvement. Allegiant is committed to operational excellence and looks forward to continued progress in this area."

Harfst had been the point man in Allegiant's efforts to negotiate a contract with Teamsters Local 1224, the company's pilot union.


Allegiant Air COO abruptly quits | Las Vegas Review-Journal (http://www.reviewjournal.com/business/allegiant-air-coo-abruptly-quits)

[WillowRun 6-3]

"Maybe the lawyers are reading this thread?" - one would certainly hope that legal counsel worthy of retention in this serious matter would have arrived at appropriate arguments and strategies outside of the forum!


pk, do you happen to know when the Plaintiff's response to the Defendant's Motion to Dismiss is due to be filed in the USDC?


And thanks for posting the litigation update, btw . . . :ok:

[peekay4]

Indeed, Allegiant is represented by capable counsels from Jackson Lewis P.C.

On the Motion to Dismiss, both its Response and the Reply to Response have now been filed. I believe next up is setting the discovery schedule.

In the docket there is an Early Neutral Evaluation (ENE) session set for February 25, 9am.

The case is 2:15-cv-02306, Nevada District Court, if anyone wants to follow.

[ironbutt57]

Allegiant pilots need to impose a "work to rule" action, otherwise the management will continue to pick them off one by one whenever any pilot makes a controversial decision...their management needs to learn the difference between errors, and willful violations

[peekay4]

Interestingly (for you legal types) Allegiant's motion to remove was not based on diversity, but solely on the argument that the U.S. district court has original jurisdiction. This could backfire on Allegiant.

Just a short follow-up on this case. The U.S. District Court rejected Allegiant's arguments on federal jurisdiction. The case has been sent back (remanded) to the Nevada State court, a win for Captain Kinzer.

Allegiant has refiled its "Motion to Dismiss" at the Nevada state court. Due to the usual court system backlog, the next set of activities is likely not until the end of August. The case is long from over and Allegiant will be happy to let it drag out.

Incidentally the presiding state judge is up for re-election in November...

[RoyHudd]

Lower fares generally imply lower service and comfort levels for passengers, not lower on-time performance, and certainly not lower safety.

[BBJ flying spanner]

Do I read this correctly ??

Greg Baden, Allegiant's vice president of operations, and Michael Wuerger, director of flight safety, government affairs and quality assurance, were flying Allegiant's Flight 426 from McCarran International Airport to the Fargo, N.D., Hector International Airport on July 23.

Director of Flight Safety and Quality Assurance are the same person!!!!
Time to go for a Safety Management Course and read page 1.

[L-Plater]

I'm not a qualified pilot but if I sensed an evacuation was necessary and some unidentifiable person told me to hold off or not evacuate, I'd be backing my original judgement that evacuation is necessary if that person did not identify themselves within seconds.

Even if they did identify themselves and give a reasonable explanation, if I still thought evacuation was necessary I'd still back my judgement to do so (fire, smoke or fumes not visible to those outside the aircraft).

At the end of the day the Captain holds responsibility for the souls on board and the aircraft and the decision rests with them to make the best call they see warranted.

Injuries in an evacuation are unfortunate but a better result than a mass cremation.

Airlines need to back their technical crew to back their pilots in emergency, high pressure situations.

One day we will have cockpit and cabin CCTV fed back to the black boxes and a Captain not proactive could well see themselves to blame for lack of evacuation due to management and bean counter reprisal whilst not being around (along with pax) to even defend themselves in an investigation.

It's the Captain's responsibility to ensure the safety of their flight. It's management's responsibility to ensure the safety culture of an airline is first and foremost.

[pcpmitch]

Interesting article in the Washington Star about Allegiant's Incident Record
(https://www.washingtonpost.com/business/economy/allegiant-air-with-ultra-low-fares-draws-faas-attention-over-safety-concerns/2016/09/01/08c0f202-28f5-11e6-ae4a-3cdd5fe74204_story.html)

[Birdstrike737]

Lucky him, he's in the states and can easily exercise his legal rights. If he was flying for a low-cost carrier in Europe, he would be wasting his time (LOTS of time, and money) trying to sue the airline for firing him.

[6f1]

It’s my opinion that Capt. Kinzer was terminated to quell the pilot group, to silence the pilot group, to in a way ‘take one out’ to keep the pilots from reporting safety events, emergencies, those types of events.”

This is the problem pilots need to stick together,and grow some balls,but I can only dream.

[etudiant]

It is not clear that Capt. Kinzer is getting any help from his fellow pilots.
He is posting in the comments to the Washington Star article linked by 'pcpmitch' and seems to be quite alone. That suggests Allegiant has little reason to worry about their pilots forming a group.

[RAT 5]

What is the opinion of FAA over such a matter? Surely they must be aware of it and can not ignore it?

[peekay4]

The FAA would be reluctant to be seen as "meddling" in what's considered a civil employment case. However, the FAA responded by moving up a comprehensive audit of Allegiant's operations (CHEP audit) after this incident and others.

Allegiant's next CHEP audit wasn't due until 2018. Instead, FAA gave Allegiant an audit notice in March and FAA auditors were at Allegiant for three months from April through June of this year.

Allegiant passed the audit with only minor issues flagged and no enforcement actions required. Some of the issues were really minor like one training room apparently had its AC temperature set too low that it was found to be distracting. Allegiant had until this past Friday to address the issues and apparently they did so.

I can't speak for Allegiant pilots, but note that after a tough period they have just won their first union contract (CBA) including up to 30% pay raise and promised improvements to safety processes + culture.

Allegiant is also replacing their aging MD-80s and moving to an all-Airbus fleet by 2019. They recently placed an order for 12 brand new A320neos -- the first time in history they've purchased new aircraft.

So I think Allegiant pilots (now among the best paid in the industry) have room for optimism. They used safety as a "stick" during the contract process and now that concessions have been made it would not be in their benefit to criticize.

If I recall it was noted previously in this thread that Capt. Kinzer's suit was filed without involvement from Allegiant's union (Teamsters).

[Airbubba]

The Tampa Bay Times has published another hit piece on Allegiant Air.

In true tabloid tradition it starts:

BREAKDOWN AT 30,000 FEET

Nov. 2, 2016

By NATHANIEL LASH, WILLIAM R. LEVESQUE and ANTHONY CORMIER
Times Staff Writers

Lisa Cozzolino started to panic as Allegiant Air Flight 844 circled over Pinellas County, burning off fuel for an emergency landing. “All the bad things I’ve done in my life,” she said to her sister, “and now I’m going to die.”

Matt Jones fumbled with his cellphone, trying to call his wife to say goodbye, as crew members on Allegiant Flight 822 ordered him to tuck into crash position over Baltimore. “I said to myself, ‘I’m never going to see my wife or my kids or my grandkids again,’” he recalled.

Jessica Stoffel was so afraid on Allegiant Flight 175 over Mesa, Ariz., that she grabbed the stranger next to her and squeezed his hand. “I was terrified and honestly did not think we were going to make it,” she said.

Thousands of people flew Allegiant thinking their planes wouldn't fail. They were wrong. | investigations | Tampa Bay Times (http://www.tampabay.com/projects/2016/investigations/allegiant-air/mechanical-breakdowns/)

[ExDubai]

Allegiant Air changes course after Times investigation, admits too many planes failed | Tampa Bay Times (http://www.tampabay.com/news/business/airlines/allegiant-air-changes-course-by-admitting-it-had-too-many-aircraft-mishaps/2301031)

A mea culpa from Maurice....

"I can look at what we did (in 2015) and it wasn't acceptable," Allegiant CEO Maurice Gallagher Jr. said in an Oct. 26 interview at the company's Las Vegas headquarters. "I don't disagree with the thrust of your numbers. ... We want to be well known as being reliable and on time, and obviously safe, and that's an important part of our brand. And we're going to make sure we do those things. But if you stub your toe, step up and own it and move on."

[peekay4]

The case is now inching closer to a jury trial, scheduled to start on July 31, 2017 -- more than two years since the date of this incident.

It appears that the Captain's legal team wanted to depose Maurice Gallagher Jr. (CEO). Allegiant filed a motion to protect. For now the CEO is not required to provide a deposition unless there's evidence that he was involved / had the final say in the Captain's firing.

[J.O.]

Unfortunately, there will be no trial. Allegiant has reached a settlement agreement with Captain Kinzer. I’m happy for him but would like to have seen their management get the public tongue lashing they so richly deserve.

https://lawandcrime.com/ross-investigates/pilot-fired-for-ordering-emergency-evacuation-settles-with-airline/amp/