United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang United States District Judge.
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). R. 21, Am. Compl. ¶¶
25-30. 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. 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.
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).
Parties and the Chain of Command
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.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.
Airlift's Training Practices
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. 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.
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.
Loughner's S-61 Training (2012-2013)
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). 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.
Training Reimbursement Agreement and Loughner's S-92
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
successfully completed PIC training for the S-92 in August
2013. DSOF ¶ 12. It cost Airlift $51, 500 to provide him
that training. Id.
Loughner's S-61 Training (2014)
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. Id.; R. 38-3,
Costello Dec. ¶¶ 6-7.
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. 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.
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.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.
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. 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.
Loughner's Communications with His Wife
the day of the oral exam, Loughner's wife had been
texting him that she urgently needed money. 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. After they
hung up, Loughner tried but could not fall asleep.
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.
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.
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. See PSOAF ¶
7. 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. 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.
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. Once Brigham finished
filling out the necessary forms, Loughner gathered his
belongings and returned to his assigned quarters. PSOAF
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
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.
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. In that email, Costello disavowed
treating Loughner unfairly and claimed instead that Loughner
had failed to apply himself. See Costello Email at
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. Wilson ultimately approved
Loughner's return to Afghanistan. Id.
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. Loughner,
however, did not tell Wilson during ...