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Business Observer Thursday, Sep. 11, 2003 15 years ago

Running Hot

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A safety incident at Tampa International Airport offers the federal courts a fresh chance to clarify the rightsof whistleblowers in a deregulated airline industry.

Running Hot

A safety incident at Tampa International Airport offers the federal courts a fresh chance to clarify the rights

of whistleblowers in a deregulated airline industry.

By Francis X. Gilpin

Associate Editor

TAMPA - An AirTran Airways Inc. DC-9 flew into Tampa International Airport in 2001 with one of its twin engines overheating. A jet engine running too hot is potentially life-threatening for passengers and crew because it could shut down in flight.

Michael F. Branche, AirTran's only airplane inspector at TIA on that June day, says the DC-9 should have been grounded immediately. Instead, the plane took off. The engine overheated again en route to Atlanta's Hartsfield International Airport, where it landed without incident and was finally taken out of service.

Branche notified the Federal Aviation Administration of what he felt was AirTran's violation of safety rules. Within weeks of the complaint, AirTran fired Branche.

The dispute between Branche and his former employer may end up before the U.S. Supreme Court, according to his lawyer. At issue is whether federal deregulation of the airline industry trumps state laws protecting those who report misconduct.

"Congress wanted deregulation of the airlines, meaning they didn't want the states hampering airlines with respect to rates, routes, fares or services," says Craig L. Berman, Branche's attorney. But passenger safety should be another matter. "You can't make that argument because they don't have the discretion to violate any safety regulations," says Berman.

The 11th Circuit U.S. Court of Appeals agrees. A three-judge panel ruled last month that Branche's claim to protection under the Florida Whistleblower Act isn't pre-empted by the federal Airline Deregulation Act.

"Safety is not a basis on which airlines compete for passengers, and as such is not something for which air travelers bargain" the judges wrote in part. "Thus, because Branche's state Whistleblower Act claim is fundamentally an employment discrimination claim that does not implicate any arena in which airlines compete, we conclude based on the foregoing analysis that his claim does not relate to the services of an air carrier..."

Branche worked for years in airline maintenance, including for UAL Corp.'s United Airlines Inc. In 1998, he went over to AirTran, a unit of Orlando-based AirTran Holdings Inc. Three years later, the Polk County resident was in charge of inspecting the work of AirTran's maintenance crews at the Tampa airport.

That put Branche at odds with Guy Lewis, AirTran's maintenance manager at TIA. According to Branche's lawsuit, which was transferred from Pinellas County circuit court to U.S. District Court in Tampa, Lewis began exerting improper managerial authority over Branche. By federal regulation, aircraft inspectors such as Branche are supposed to act independently of maintenance supervisors such as Lewis. Branche's boss was stationed at Orlando International Airport, near AirTran's headquarters.

Shortly before the hot-engine incident, the lawsuit states that Lewis started to harass and threaten Branche. Lewis told Branche that "he (Lewis) had gotten rid of other inspectors," according to the lawsuit.

When maintenance crews detected the overheating DC-9 engine on June 30, 2001, Branche says he recommended Lewis undertake a detailed physical inspection. But Lewis and two of his employees opted to climb into the cockpit and perform an abbreviated high-powered engine run.

This violated several federal regulations, according to Branche. Lewis wasn't qualified to perform the high-powered engine run and he failed to summon AirTran's Paul Picarelli, who was available and approved to do it. Plus, Lewis ran the engine for no more than 10 seconds, according to witnesses Berman says he deposed, instead of the required five minutes.

After Branche learned that Lewis and his boss had cleared the DC-9 for the Tampa-to-Atlanta leg, he inspected AirTran records. Branche discovered that the questionable engine had overheated on several other occasions during the prior two weeks.

On July 2, 2001, Branche contacted the FAA. Four days after that, he filed a labor-union grievance because Picarelli had been denied the opportunity to perform the high-powered engine run. A week later, AirTran accused Branche of leaving work two hours earlier than his timecard indicated. By the end of July, Branche was unemployed.

Branche was fired as a direct result of "engaging in protected whistle-blowing activities and voicing objections" to AirTran's "illegal and unsafe practices which directly put the public at danger," according to his court complaint.

Of all the major airlines, AirTran, which used to do business as ValuJet, should be the most cautious about aging DC-9s.

In May 1996, a ValuJet DC-9 crashed into the Florida Everglades. All 110 onboard were killed. Investigators blamed the crash on a ValuJet maintenance crew that shouldn't have loaded pressurized cargo onto the Miami-to-Atlanta flight. A year after the crash, ValuJet merged with and changed its name to AirTran.

AirTran hopes to retire its entire fleet of DC-9s by the end of this year.

Although Berman believes incidents like the 2001 overheating DC-9 engine in Tampa are rare today at AirTran, Branche's lawyer added: "They're still ValuJet. I don't care what anybody says. They are ValuJet."

In August, AirTran reported passenger traffic rose 33%. Parent AirTran Holdings stock reached a 52-week high of $14.36 in the same month. Net income for AirTran Holdings was 74 cents a diluted share for the quarter that ended June 30, up from a 7-cent gain for the same 2002 quarter.

But about half of AirTran Holdings' operating cash for the first six months of 2003 came from a $38 million reimbursement from the federal government for passenger security costs.

In the Branche case, AirTran has maintained that the airline deregulation law takes precedence over Florida's whistleblower protection statute. R. Paul Roecker of Greenberg Traurig PA's Orlando office, who is representing the airline, and Tad Hutcheson, AirTran's marketing director, couldn't be contacted for comment.

Berman says AirTran has shown no desire to settle and he predicts the airline will seek a rehearing before the entire 11th Circuit bench. He likes his chances there, since some of the judges on the Atlanta-based court have to fly regularly. That includes Charles R. Wilson of Tampa, who has already ruled in favor of Branche.

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