Aityahia v. Aviation Academy of America (agency decision, September 12, 2019)

Plain-English summary

Aziz Aityahia alleged that Aviation Academy of America fired him for making safety complaints. The Board agreed with the ALJ that no evidence showed the academy was an air carrier or a contractor or subcontractor of an air carrier covered by AIR21. Its corporate relationship to any company contracting with an air carrier was too remote. The Board also held that Section 11(c) of the Occupational Safety and Health Act does not create an administrative appeal from the Secretary of Labor's dismissal of a complaint. It adopted the ALJ's dismissal order as the final agency decision.

Decision snapshot

• Cited authorities: 49 U.S.C. § 42121; 29 U.S.C. § 660(c); 29 C.F.R. §§ 18.72(a) and 1979.110(a)
• Outcome: Dismissal affirmed and the ALJ's order adopted as the final agency decision.
• Key point: A flight academy is not covered by AIR21 without evidence that it is an air carrier or contracts or subcontracts with one.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:



  AZIZ AITYAHIA,                                   ARB CASE NO. 2018-0028

                  COMPLAINANT,                     ALJ CASE NO. 2017-AIR-00029

         v.                                        DATE: September 12, 2019

  AVIATION ACADEMY OF AMERICA,

                  RESPONDENT.

  Appearances:

  For the Complainant:
        R. Chris Pittard, Esq.; Pittard Law Firm; San Antonio, Texas

  For the Respondent:
        Michael V. Galo, Jr., Esq.; Galo Law Firm, P.C.; San Antonio, Texas

  Before: William T. Barto, Chief Administrative Appeals Judge; James A.
  Haynes and Thomas H. Burrell, Administrative Appeals Judges



                         FINAL DECISION AND ORDER

        PER CURIAM. The Complainant, Aziz Aityahia, filed a retaliation complaint
  under the employee protection provision of the Wendell H. Ford Aviation





  Investment and Reform Act for the 21st Century (AIR 21) 1 with the Department of
  Labor’s Occupational Safety and Health Administration (OSHA). Complainant
  alleged that his employment with Aviation Academy of America (AAA) was
  terminated in retaliation against him for making safety-related complaints. OSHA
  dismissed the complaint because it lacked jurisdiction, but the case was referred to
  the Office of Administrative Law Judges (OALJ) at Complainant’s request. The ALJ
  granted Respondent’s Motion to Dismiss, holding that the complaint is not
  cognizable under AIR 21 and that the OALJ lacked jurisdiction to consider
  complaints under Section 11(c) of the Occupational Safety and Health Act, 29
  U.S.C. § 660(c) (1970) (OSH Act). Complainant filed a petition requesting that the
  Administrative Review Board (ARB or the Board) review the ALJ’s order. We
  granted that petition and now affirm.

                        JURISDICTION AND STANDARD OF REVIEW

         The Secretary of Labor has delegated to the Administrative Review Board
  (ARB) the authority to issue final agency decisions in review or on appeal of matters
  arising under AIR 21 and its implementing regulations at 29 C.F.R. Part 1979. 2 The
  ARB will affirm the ALJ’s factual findings if supported by substantial evidence but
  reviews all conclusions of law de novo. Summary decision is permitted when “there
  is no genuine dispute as to any material fact and the movant is entitled to decision
  as a matter of law.” 29 C.F.R. § 18.72(a) (2018). On appeal from summary decision,
  we review the record on the whole in the light most favorable to the non-moving
  party. Micallef v. Harrah’s Ricon Casino & Resort, ARB No. 2016-0095, ALJ No.
  2015-SOX-00025, slip op. at 3 (ARB July 5, 2018).

                                        CONCLUSION

        The ALJ’s determination that there is no evidence that AAA is a covered
  employer under the employee protection provisions of AIR 21 is correct. For the
  reasons stated by the ALJ, there is no genuine issue of material fact that


  1      49 U.S.C. § 42121 (2000). AIR 21’s implementing regulations are found at 29 C.F.R.
  Part 1979 (2018).
  2      Secretary’s Order No. 01-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13,072 (April 3, 2019); 29
  C.F.R. § 1979.110(a).



  Respondent AAA is itself a direct or an indirect air carrier or a contractor or
  subcontractor of an air carrier. Moreover, the ALJ correctly concluded that Section
  11(c)(2) of the OSH Act does not provide an administrative appellate remedy for
  complaints under that Act that are dismissed by the Secretary of Labor. Thus, we
  adopt the ALJ’s well-reasoned order Ruling on Respondent’s Motion to Dismiss as
  the final agency decision in this matter and attach a copy hereto. 3

         SO ORDERED.




  3       While we agree with the ALJ’s reasoning in finding that AAA is not a covered
  employer under AIR 21, we note that the ALJ mischaracterized the relationship between
  Vision Technologies Aerospace Incorporated (VT Aerospace), AAA’s parent company, and
  Singapore Technologies Aerospace, Ltd. (ST Aerospace). See Ruling on Respondent’s Motion
  to Dismiss at 2. Based upon the evidence in this matter, it appears that ST Aerospace is a
  direct subsidiary of Singapore Technologies Engineering, Ltd, the primary parent company,
  not VT Aerospace. This is evidence that the relationship between AAA and any company
  that actually has a contract with an air carrier is even more attenuated than found by the
  ALJ.