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Loughner v. AAR Airlift Group, Inc.

United States District Court, N.D. Illinois, Eastern Division

June 27, 2017



          Honorable Edmond E. Chang United States District Judge.

         Plaintiff William Loughner has sued his former employer, Defendant AAR Airlift Group, Inc. (Airlift), alleging retaliation under Florida's Private Whistleblower Act, Fla. Stat. § 448.102(3).[1] R. 21, Am. Compl. ¶¶ 25-30.[2] Loughner, a helicopter pilot, claims that Airlift fired him for refusing to participate in a flight evaluation because he believed that he was medically unfit to fly under a Federal Aviation Administration (FAA) regulation, namely 14 C.F.R. § 61.53. Am. Compl. ¶¶ 25-30. Airlift, in turn, has filed a counterclaim against Loughner for breach of contract.[3] See R. 22, Def.'s Ans. & Countercl. Airlift now moves for summary judgment on its counterclaim, as well as on Loughner's whistleblower claim. R. 35, Def.'s SJ Mot. For the reasons explained below, Airlift's motion is denied.

         I. Background

         Because it is Airlift that moves for summary judgment, the evidence must be taken in the light most favorable to Loughner, the non-moving party, with all reasonable inferences drawn in his favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         A. The Parties and the Chain of Command

         Loughner, a helicopter pilot, worked for Airlift-a company that provides expeditionary airlift services and specialized aircraft modifications to government and defense customers-from July 2012 to May 2014. R. 37, DSOF ¶¶ 4-5, 43.[4]During the time that Loughner worked for Airlift, Interim Chief Pilot Scott Tripp directly supervised Loughner, and Director of Operations Jayson Wilson directly supervised Tripp. Id. ¶ 6.

         B. Airlift's Training Practices

         Airlift's custom is to conduct Pilot-in-Command (PIC) training for all new employees. DSOF ¶ 7. PIC training concludes with an examination, known as a “check ride.” See Id. (Airlift pilots also simultaneously undergo a Part 135 evaluation.[5] Id. ¶ 9.) If a pilot completes PIC training but is not yet ready for a check ride, Airlift will certify that pilot at the Second-in-Command (SIC) level instead. Id. ¶ 7.

         A PIC check ride has two parts: (1) an oral examination and (2) a flight evaluation. DSOF ¶ 7. Upon completing a PIC check ride for a particular aircraft, a pilot becomes “type rated” in that aircraft, meaning that he or she can go to another employer and be qualified-under FAA standards-to fly that type of aircraft. Id. ¶ 8. Both PIC- and SIC-certified pilots must complete yearly training to stay certified on any aircraft that they are authorized to fly. Id. ¶ 9.

         C. Loughner's S-61 Training (2012-2013)

         As a new hire, Loughner completed training on the Sikorsky S-61 aircraft but did not receive a PIC type rating; instead, he was certified at the SIC level. DSOF ¶ 10. Loughner was scheduled to complete training to upgrade to the PIC level on the S-61 in August 2013, but he decided to skip that training to visit his wife and newborn daughter in Colombia (where they lived, id. ¶ 5).[6] Id. ¶ 11; see R. 47-1, Loughner Dep. Excerpt at 3. In lieu of the PIC upgrade training, Loughner re-upped his SIC training to maintain his certification. DSOF ¶ 11.

         D. The Training Reimbursement Agreement and Loughner's S-92 Training

         Almost a year after he was hired, in June 2013, Loughner entered into a Training Reimbursement Agreement (for convenience's sake, the “Agreement”) with Airlift. DSOF ¶ 13; see R. 44-1, Agreement. In the Agreement, Airlift agreed to pay 100% of the costs to train Loughner on a new type of aircraft-the Sikorsky S-92. Agreement at 1. Loughner, in exchange, agreed to repay Airlift if he “le[ft]” the company-excepting certain circumstances-within the year following the completion of his S-92 training:

In the event [Loughner] leaves the Company prior to the Minimum Employment Period [(one year following his completion of the Training Program)], regardless of his or her reason (with the exception of a furlough, an unexpected loss of medical certificate or airman certificate, or an extreme immediate family emergency), [Loughner] agrees to repay [Airlift] a percentage of the Training Costs, plus Expenses incurred ….


         Loughner successfully completed PIC training for the S-92 in August 2013. DSOF ¶ 12. It cost Airlift $51, 500 to provide him that training. Id.

         E. Loughner's S-61 Training (2014)

         In March 2014, Loughner and another pilot, Bruno Guzman, went to Newberg, Oregon to undergo PIC upgrade training on the S-61. See DSOF ¶ 14. Airlift Flight Instructor Gary Walton was present to conduct the training, while Pilot Examiner Joe Brigham and Airlift Check Airman Ian Costello were present to evaluate Loughner.[7] Id.; R. 38-3, Costello Dec. ¶¶ 6-7.

         1. Oral Examination

         Loughner completed his training with Walton, and then Costello and Brigham administered the oral examination portion of Loughner's check ride. See DSOF ¶ 15; R. 38-2, Brigham Dec. ¶¶ 5-6; Costello Dec. ¶¶ 6-7. As part of the test, Brigham asked Loughner a number of scenario-type questions.[8] DSOF ¶ 15. Brigham remained friendly and patient throughout the exam, emphasizing the availability of reference materials. Id. Loughner, meanwhile, struggled to respond and gave substantively unacceptable responses to certain questions. Id. Ultimately, after Loughner provided several wrong answers, Brigham stated that Loughner's performance was unsatisfactory and terminated the exam. Id. ¶ 16. Loughner had never failed an oral examination before, so this caused him a great deal of stress. R. 45, PSOAF ¶ 3.[9]

         According to Loughner, Costello suggested at that point that Loughner consider abandoning the upgrade training and returning at some future date for another attempt. R. 45, Pl.'s Resp. DSOF ¶ 16; R. 45-2, Loughner Dec. ¶ 4.[10]Brigham, however, explained to Loughner why he had failed and, although Brigham was under no obligation to do this, he allowed Loughner to receive additional instruction from Walton and then to resume the exam. DSOF ¶¶ 16-17.

         Loughner's evaluation picked back up in the early evening, at which time Brigham re-asked the questions that Loughner had answered incorrectly earlier in the day.[11] DSOF ¶ 18. This time, Loughner's responses were satisfactory (though Costello found Loughner's knowledge in certain areas to be surprisingly weak). See Id. ¶ 19.

         2. Loughner's Communications with His Wife

         Throughout the day of the oral exam, Loughner's wife had been texting him that she urgently needed money.[12] PSOAF ¶ 4. Loughner spoke with her on the phone that evening, at which time he told her that he would get her the funds that she needed. Id. Loughner's wife was very emotional during the call, and speaking to her made Loughner feel even more stressed. Id.[13] After they hung up, Loughner tried but could not fall asleep. Id.

         3. Flight Evaluation

         Loughner was scheduled to complete the flight portion of his PIC check ride at 8:00 a.m. the day after his oral evaluation. PSOAF ¶ 5; DSOF ¶ 23. But weather conditions that morning were poor so Costello and Brigham pushed the evaluation back until 11:00 a.m. or 12:00 p.m. when they believed conditions would become suitable for flying. DSOF ¶ 23. Loughner, extremely tired from the lack of sleep the night before, arrived at the training site around 10:45 a.m. Id.; PSOAF ¶ 5. Given the weather delay, Loughner asked Brigham and Costello for permission to drive to a nearby bank so that he could wire his wife the money that she had requested. PSOAF ¶ 5. Neither Brigham nor Costello objected. See id.

         Loughner then drove to a U.S. Bank and completed the wire transfer. DSOF ¶ 24. Afterward, he called his wife from the bank's parking lot and told her that he would not be visiting her in Colombia after his training (as they had originally planned) because he was scheduled to deploy to Afghanistan in two days. PSOAF ¶ 6. Loughner's wife was very dismayed by this news and began to cry. Id.

         When the call ended, Loughner drove back to the training site. See DSOF ¶ 25. At that point, he was feeling upset by the recent conversation with his wife and by his performance on the oral exam the day before, as well as tired from lack of sleep. PSOAF ¶ 7. Loughner came to the conclusion that the stress and fatigue he was experiencing rendered him medically unfit to fly under FAA regulations, specifically 14 C.F.R. § 61.53.[14] See PSOAF ¶ 7.[15] So, when he arrived at the flight training area, he told Brigham and Costello that because he had not slept well the night before, and because his mind was preoccupied with family problems, he should not be flying that day.[16] Id. ¶ 8; DSOF ¶ 25. In response, Costello asked Loughner if he wanted to postpone his flight evaluation until later in the day or until the following day. DSOF ¶ 26. Loughner did not respond. Id. Costello was surprised, but he and Brigham agreed to call off the evaluation. Id. Neither Brigham nor Costello, however, understood Loughner to be grounding himself for medical reasons. Id. ¶¶ 26, 28.

         Brigham was required to fill out paperwork for the FAA regarding the discontinuance of the exam, and it took him roughly 45 minutes to complete it all. PSOAF ¶ 9; DSOF ¶ 28. Brigham listed the reason for discontinuance as “OTHER EARLY WEATHER DELAY AND APPLICANT HAD PERSONAL EMERGENCY.” DSOF ¶ 28.[17] Once Brigham finished filling out the necessary forms, Loughner gathered his belongings and returned to his assigned quarters. PSOAF ¶ 9.

         Meanwhile, Costello called Tripp (Loughner's direct supervisor) to tell him what had happened. DSOF ¶ 27. When Costello returned from that call, Loughner was gone. Id. Costello attempted to contact Loughner but received no response. Id. So Costello told Walton that if he saw Loughner he should tell Loughner to contact Tripp immediately. Id. Walton did as Costello asked. PSOAF ¶ 15.

         Later that same day, Airlift's Training Manager, Glenn Albert, called Loughner to find out if he was okay, PSOAF ¶ 19, and to ask if Loughner wanted to stay in Oregon to re-up his SIC training on the S-61 the next day, DSOF ¶ 29. This would spare Airlift significant future expense. Id. Loughner told Albert that his SIC certification was good until August and that he would prefer to return to Afghanistan as scheduled. Id. Albert discussed the issue with Costello and Tripp and they jointly decided to terminate Loughner's training. See PSOAF ¶ 19. Albert, like Brigham and Costello, did not understand Loughner to have grounded himself for medical reasons under 14 C.F.R. § 61.53. DSOF ¶ 30.

         According to Airlift, the following day Costello was informed that Loughner had told Walton that he (Loughner) had not wanted to complete his evaluation because he believed Costello and Brigham were going to fail him. See DSOF ¶ 31. (Loughner denies ever saying this to Walton. PSOAF ¶ 9.) Costello then sent an email to Wilson, Tripp, and Albert informing them that Loughner had told Walton that he (Loughner) believed he was being set up to fail. See DSOF ¶ 31; R. 38-3, Exh. A to Costello Dec., Costello Email at 9.[18] In that email, Costello disavowed treating Loughner unfairly and claimed instead that Loughner had failed to apply himself. See Costello Email at 9.

         That same day, Loughner spoke to Wilson (Tripp's direct supervisor) via telephone. PSOAF ¶ 13; DSOF ¶ 32. During their conversation, Loughner explained that he did not complete his PIC upgrade training because of ongoing family issues. PSOAF ¶ 13.[19] Wilson ultimately approved Loughner's return to Afghanistan. Id.

         After speaking with Wilson, Loughner left Oregon and traveled to his home in Arizona. DSOF ¶ 34. Loughner had tried, without success, to get ahold of Tripp before his departure. PSOAF ¶ 15. He thought that it would be okay for him to leave anyway because he had Wilson's approval and Wilson was Tripp's boss. See id.[20] Loughner, however, did not tell Wilson during ...

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