The Three US Airways Attendants Have Been Vindicated, So Why Doesnt the Company Have Their Back?
Sue Burris was fast asleep when the phone rang just before midnight that Saturday. Rousted from her bed, at first she didn't understand what Paula Walker was saying.
They'd won? The lawsuit was over?
"It took me a few minutes to understand," Burris says. "But then I got it — and then I had to make a few phone calls, too!"
For more than two years, Walker, Burris, and their co-worker Brian Shunick lived under the stress of a lawsuit from a colleague. They're flight attendants at Tempe-based US Airways, while the colleague who sued them, Ed Gannon, is a pilot.
The three flight attendants had reported Gannon to the Federal Aviation Administration in 2003, saying that his reluctance to de-ice an aircraft's wings before takeoff could have endangered passengers. Gannon fired back with the lawsuit in 2006. He claimed that the flight attendants lied and defamed him by making the report — and then demanded $2 million for the "emotional distress" he'd supposedly suffered.
For 2 1/2 years, the flight attendants racked up tens of thousands of dollars in legal bills. All three were forced to refinance their homes. All three worried about just how much it would cost to take the case to trial.
Then, late last month, came the ruling from Maricopa County Superior Court Judge Louis Araneta.
The judge had dismissed the pilot's lawsuit entirely.
There was no evidence that the flight attendants had knowingly made false statements, Araneta wrote, nor that they'd made their statements with "reckless disregard for the truth." That meant there was no defamation.
For the flight attendants, it was complete vindication. But that doesn't mean the story, or their struggle, is over.
I first reported the flight attendants' plight earlier this year ("An Icy Wing and a Prayer," January 29). Two weeks later, Contintental Flight 3407 crashed into a home in Buffalo, New York, killing everyone onboard.
I'd understood how important the flight attendants' story was, but the crash in Buffalo really drove it home for me — as it should for anyone who cares about airline safety. And that's because preliminary reports suggest that Flight 3407 may have crashed because ice built up on the wings of the aircraft. In the aftermath, Steven R. Chealander of the National Transportation Safety Board told the Buffalo News, "Significant ice build-up is an aerodynamic impediment. Airplanes are built with wings that are shaped a certain way, and ice can change the shape."
And icy wings are what got Paula Walker, Sue Burris, and Brian Shunick in this jam in the first place.
Walker, a flight attendant with more than 20 years of experience, had noticed ice or frost on the wings of America West Flight 851 as it was preparing to leave Calgary, Alberta, for Phoenix six years ago. She knew what that meant, so she was shocked that the pilots began pushing back from the gate without de-icing first.
When Walker questioned the pilots, they resisted de-icing, as she later told the FAA. It was only after she got Burris and Shunick involved, and the three used the pretext of passengers mentioning the icy wings, that the pilots grudgingly agreed to de-ice, according to their complaint.
By making the ice an issue, the three flight attendants may well have saved the life of every passenger onboard.
I suspect America West — which later merged to become US Airways — realized that. Upon landing, Walker told her superiors about the pilots' curious reluctance to de-ice, and they helped her call the FAA immediately. That was the right decision, I think, even though the FAA ultimately found insufficient evidence to take action against Gannon.
The problem is what happened after the FAA closed its investigation, when Gannon decided to sue the whistleblowers.
For US Airways, this should have been a no-brainer. The flight attendants' contract calls for the company to pay attorney fees if attendants are sued for anything related to their official duties. That was clearly the case here.
But instead of hiring these flight attendants a lawyer, US Airways hung them out to dry.
For two years, the pilot battled the three in court. His lawyers hired a half-dozen experts, deposed a number of witnesses, and at one point, even attempted to get the flight attendants' lawyer, Michael Pearson, removed from the case. (Interestingly, Pearson is an air traffic controller with the FAA, as well as a lawyer; the judge ultimately decided that wasn't a conflict.)
Through their Web site, www.helpflightattendantcrew.blogspot.com, the three have raised a little money for their defense, but that $1,111 is a pittance next to the $80,000 they believe they'll ultimately end up spending once the final bill is tallied. And make no mistake: They have little to no chance of recouping that money from Gannon, no matter how frivolous his lawsuit was.
That's how our legal system works, unfortunately.
But it shouldn't be how our airlines work. US Airways has a duty to these flight attendants — and it doesn't include throwing them under a bus the minute their actions become controversial.
Lisa LeCarre is the president of the chapter of the Association of Flight Attendants that represents US Airways' Phoenix-based flight attendants. The union is pursuing an internal grievance process in hopes of getting the airline to pay up, she says.
"We do believe the company should have assisted these flight attendants legally, every step of the way," she says.
There's a bigger picture: "We don't want any litigation putting a chill on the communication between the cabin crew and the flight deck."
With the way US Airways has handled this one, that's nearly impossible. If flight attendants have to worry that challenging a pilot's judgment could cost them tens of thousands of dollars, of course they're going to be less likely to speak up. They're not stupid.
And even if the airline initially wasn't sure whether to believe the flight attendants, it simply can't claim that in light of the judge's verdict. Gannon, Judge Araneta concludes, "acknowledges in his deposition that he saw frost on the wing and that the frost is a contaminant under the FAA regulation. [His] viewing of the frost was consistent with the defendants having seen what they thought was ice and reporting it."
Finally, Araneta adds, Gannon "admitted in his deposition that a flight attendant does not act recklessly if they see ice or contamination on an aircraft and report it."
Araneta's verdict makes it clear: The flight attendants didn't screw up.
So I called US Airways to find out whether the company plans to follow through on its contractual obligation to foot the bill.
First, I got a brief message from a spokeswoman saying she couldn't comment because the matter is in litigation. No, I responded patiently, the matter is not in litigation anymore. That's why I'd called. The case has been dismissed. The flight attendants won.
Here's the message I got back: "Sorry, we have no further comment."
Sorry is right.
There's one more issue here, and that's the conflicting claims of the pilot, Ed Gannon.
When Gannon sued the flight attendants in 2006, he didn't just argue that he'd been defamed. He also claimed that he'd been a victim of "intentional infliction of emotional distress."
As Gannon's lawyer argued in the initial complaint, the flight attendants' "making of false allegations jeopardizing Gannon's ability to work in his profession is, on its face, (1) intentional and reckless, (2) is extreme and outrageous, (3) was the direct cause of his having to undergo over three years of investigation and prosecution, and (4) his emotional distress could only be severe."
Obviously, we don't want an emotional wreck at the helm of a plane. Yet Gannon's lawyer was arguing that his distress "could only be" severe?
Like any commercial pilot, Gannon must take regular physical exams, then file paperwork with the FAA. The paperwork specifically asks if the pilot has suffered emotional distress: "Have you ever in your life had, or do you presently have . . . mental disorders of any sort: depression, anxiety, etc.?"
In the years following the flight attendants' statement to the FAA, Gannon answered "no" each time the question was asked.
So my question is this: Did Gannon file a frivolous claim in order to harass the flight attendants who dared to question him? Or did Gannon lie to the federal agency?
The answer has to be one of the above.
I'm hoping, for his sake, that Gannon merely lied in his legal claim. Because if he lied to the FAA, he faces potentially serious consequences.
In 2007, federal prosecutors criminally prosecuted nearly 45 pilots for falsifying their flight physicals in a sweep called "Operation Safe Pilot." The falsification came to light because the pilots were claiming on their FAA paperwork that they were fit to fly, even as they collected disability payments from the government.
There's another precedent that might be even closer to the issue at hand.
In the late '90s, a pilot named James Culliton filled out his FAA forms, per usual, and was asked, per usual, whether he'd had dizziness, vision trouble, or mental disorders. He answered no.
But during the period in question, court records show, Culliton had been suing a chair manufacturer for what he claimed was a defective product. His recliner had tipped over, he claimed, and he'd smacked his head on a credenza, causing decreased vision, dizziness, nausea, difficulty concentrating, and anxiety attacks.
Just the guy you'd want piloting your flight, right?
Federal prosecutors didn't see the humor. They charged Culliton with making false statements on his medical form. After a four-day trial, he was found guilty and fined $5,000.
I asked Ian Gregor, a spokesman at the FAA's regional Western-Pacific office, about the Culliton case and its applications. He cautioned that he's speaking generally, and not about any particular pilot.
"When someone knowingly puts down false information on an application for a medical certificate, the FAA will take action to revoke all of that person's airman certificates," he told me. "If a pilot makes a civil court claim that contradicts information that he or she made on their FAA medical application, that could trigger an FAA review of that airman."
Let's face it: Flying is serious business.
We shouldn't have emotionally disturbed people at the wheel of commercial airliners. Nor should we have frivolous lawsuits against flight attendants whose only motivation is ensuring the safety of their passengers.
I'm not sure what exactly was going on in this pilot's head. But either way, if I were US Airways management or part of the FAA, I'd be taking a closer look.
Our safety could depend on it.
THE HITS JUST KEEP COMING . . .
Last week, I sat in a courtroom and watched the fallout from the latest prosecutorial shenanigans in the joint sheriff/county attorney investigation of Maricopa County Supervisor Don Stapley.
Stapley is facing 118 criminal counts for failing to disclose his land dealings properly. But the hearing I attended had nothing to do with a land deal. Nope, this hearing focused on the handling of a deposition seized by sheriff's deputies under a search warrant — a deposition that was supposed to be under protective seal. Instead, the sheriff handed it over to a reporter.
We were in the courtroom of County Superior Court Judge Larry Grant. He isn't the judge on the Stapley case; instead, he's been adjudicating a complex, water-related lawsuit between East Valley developer Conley Wolfswinkel and national homebuilder Lennar.
The state is not a party to the lawsuit, which has been dragging on since 2005. But in January, the County Attorney's Office inserted itself into the civil suit — claiming that there was "a likelihood" that Wolfswinkel's deposition in the case "touches upon" his relationship with County Supervisor Don Stapley.
Now, it's interesting enough that the County Attorney's Office has decided to insert itself into a civil lawsuit. And, naturally, the fact that the prosecutors are now on the same side as Thomas' private attorney, Leo Beus, has conspiracy theorists abuzz. (As we've reported, there's been speculation in the Valley that Thomas took on this prosecution at the behest of Beus, who's been battling Wolfswinkel for years, both on behalf of Lennar and in some other, more personal litigation. See "The Wolfswinkel Connection," January 1, 2009.)
What makes it even more fascinating is the county attorney's bumbling.
Wolfswinkel's deposition was supposed to be under a protective order, one agreed to by both sides in the lawsuit. Late last year, Beus asked Judge Grant to release the deposition from the protective order.
But while Judge Grant was still weighing Beus' motion, Deputy County Attorney Lisa Aubuchon jumped into the case, echoing Beus' request that the judge unseal the deposition. She argued that prosecutors needed it to prosecute Stapley.
Before the judge could rule on either motion, sheriff's deputies raided Wolfswinkel's office. Court records show they obtained a copy of the deposition — one that they knew was sealed.
At a hearing on February 10, Aubuchon told Judge Grant that the County Attorney's Office was aware of the seal. Because of the protective order, Aubuchon said she hadn't reviewed the deposition "and will not do so until a ruling has been issued," according to court records.
But something changed.
On February 28, the East Valley Tribune published a story based on the contents of the Wolfswinkel deposition. As reporter Mark Flatten acknowledged in the article, he obtained the deposition from the Sheriff's Office via a public-records request.
Now, it's highly unusual for any law enforcement agency to turn over key evidence while an investigation is ongoing. It's even more staggering here because, of course, prosecutor Aubuchon had told Judge Grant just two weeks before that she wouldn't even be reading the deposition before his ruling. Apparently she had a rather rapid change of heart.
Aubuchon claimed she did nothing controversial.
"There was no order in place," she argued to Grant. Because the deposition's protective order was agreed to by the parties in the litigation, and not her office, prosecutors could do what they wanted with their copy once they got it through a search warrant.
Judge Grant wasn't buying it. "When there's a protective order in place, what do you think that means?" he said. "Come on."
The judge said he didn't care how the state obtained the deposition: "You don't disseminate it when there's a protective order in place!"
The judge then told the County Attorney's Office to file a motion explaining why it shouldn't receive sanctions, as requested by Wolfswinkel's attorneys.
"It seems clear to me there are reasons we issue protective orders in cases," Grant sniffed.
The strange addendum to this hearing, though, is the deposition itself. The Tribune's Flatten is an unusually skillful reporter — yet even he found little of interest in the deposition. His big revelation was that Supervisor Stapley had discussed the purchase of a utility with Wolfswinkel, but Wolfswinkel ultimately didn't close the deal. So what?
The Stapley investigation has been altogether bizarre. You've got a politician indicted on 118 criminal counts for filling out his paperwork improperly — in an indictment made public several months before anybody bothered to execute a search warrant on that politician's office. Who knows what they would have found had they been more interested in digging for clues than in issuing press releases?
Meanwhile, the law enforcement team on the case has searched Wolfswinkel's offices, has faxed his Social Security number to media outlets all over town, and now is turning over his sealed deposition to the news media before they're even supposed to be reading it.
I keep hoping there's a method to this madness — that the sheriff and county attorney have some reason for these antics other than grandstanding and endless turf wars. But after the bumbling on the deposition issue, I'm beginning to doubt it.
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