vagabond

I thought I would start a thread on an aviation topic that also has been tested in a court of law. Keep in mind, however, that published decisions are meant to be interpreted in the narrowest terms. The decision was written the way it was because of the specific facts and evidence in that case.

This thread is about PRIA and one pilot's interpretation of it. It cost him a job at Alaska Airlines.

Cite as Boring v. Alaska Airlines, Inc., 123 Wn. App. 187, 97 P.3d 51]

Kenneth A. BORING, a married man, Appellant, v. ALASKA AIRLINES, INC., an Alaska corporation, Respondent.

[No. 52867-0-I. Division One. September 13, 2004.]



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Jon Howard Rosen, The Rosen Law Firm, Seattle, WA, for Appellant.

Paula A. Barran, Allyson Sheri Krueger, Bradley Frederick Tellam, Barran Liebman LLP, Portland, OR, Suzanne Kelly Michael, Michael & Alexander PLLC, Seattle, WA, for Respondent.

OPINION PUBLISHED IN PART

KENNEDY, J.

The federal Pilot Records Improvement Act of 1996 (PRIA)--formerly known as the Airline Pilot Hiring Safety Act--requires that before allowing a job applicant to begin service as a pilot, an air carrier shall request and receive from air carriers that have previously employed the individual records pertaining to "any disciplinary action taken with respect to the individual that was not subsequently overturned" during the five-year period preceding the employment application.(fn1) Shortly before his job application



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was accepted by Alaska Airlines, Inc., Mesa Air Group terminated Kenneth Boring's employment for insubordination. Boring filed a grievance with the pilots' union. Following a hearing, Mesa Air rescinded the termination and reinstated Boring's employment without loss of pay. In responding to Alaska Airlines' official inquiry under PRIA, Mesa reported that there had been no disciplinary action taken with respect to Boring that had not been overturned.

During the hiring interview process, Alaska Airlines asked Boring whether heever had been suspended, terminated, or otherwise disciplined by Mesa Air, and Boring answered that he had not. When Alaska Airlines subsequently learned that Boring had in fact been disciplined and had failed to disclose this fact during the hiring process, it terminated his employment.

Boring brought this lawsuit, contending, among other things, that under PRIA Alaska Airlines had no right to require him to disclose facts pertaining to disciplinary action that had subsequently been overturned; and that Alaska wrongfully terminated his employment in violation of public policy upon learning that he had, as Boring puts it, exercised his right to privacy guaranteed by PRIA. The trial court granted Alaska Airlines' motion for summary judgment dismissing Boring's claims, and Boring appeals.

PRIA neither prohibits air carriers from requiring pilot applicants to disclose disciplinary action that subsequently was rescinded, nor prohibits the firing of a pilot who falsely reports that there has been no such disciplinary action. Accordingly, we affirm.(fn2)

FACTS

Appellant Kenneth Boring was hired by Mesa Air Group as a pilot in January 1997. On September 6, 2000, Captain



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Henry J. Myers, Regional Chief Pilot for Mesa Air, suspended Boring without pay for insubordination, after Boring refused an additional flying assignment that same day. After a meeting between Captain Myers, Chief Pilot Zakaullah Khogyani, Air Line Pilots Association (ALPA) Master Executive Council (MEC) Chairman Captain Andrew Hughes, and ALPA Representative Captain Casey Meeks, Mesa Air terminated Boring's employment for insubordination, on September 12, 2000.

Boring thereafter filed a grievance with ALPA and requested a hearing to determine "whether the Company had just cause to terminate me for insubordination." Clerk's Papers at 80. Boring received a hearing and was reinstated to employment status as a pilot with Mesa Air, effective September 26, 2000. Captain Michael Ferverda, Senior Vice President of Flight Operations at Mesa Air, later testified that it was his intent to rescind the termination, but not the suspension without pay. Nevertheless, under the terms of the collective bargaining agreement between Mesa Air Group and ALPA, not only was Boring's termination eliminated from his employment record, but Boring was also reinstated to his former position without loss of pay. Boring later stated that he was told that the entire incident had been permanently cleared from his records and that Captain Ferverda told him that the incident was a "non-event", and that it was if the incident had "never happened." Clerk's Papers at 43, 253.

Boring had previously applied for a job with Alaska Airlines. In November 2000, Boring received an invitation from Alaska Airlines to interview for a pilot position. Boring called Captain Ferverda again, wanting to make sure that the disciplinary incident would be treated as a non-event, and left a message. Ferverda returned the call and spoke to Boring's wife, Susan. Mrs. Boring later testified that Ferverda told her that "it was as though nothing had ever happened." Clerk's Papers at 44.

Boring updated his application with Alaska Airlines in November 2000. He answered "no" to the question, "Have



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you ever been discharged for misconduct or unsatisfactory performance or forced to resign from any position." Clerk's Papers at 91, Exhibit 9. Boring also signed an addendum to the application which stated, "I affirm that all information contained in the [ ] application as well as information given throughout the employment process, including the pre-employment drug test, is true and complete and that any misrepresentation or falsification shall be sufficient reason for dismissal from or refusal of employment." Clerk's Papers at 97. Boring signed a similar statement in two separate forms verifying his employment history and criminal history.

During the hiring process, Alaska Airlines Recruitment Manager Jacqueline Guilliams asked Boring during an interview whether he ever had been subjected to disciplinary action or termination by a prior employer. Boring did not disclose the Mesa Air incident.

Mesa Air responded to written inquiries from Alaska Airlines, as required by the PRIA. Mesa Air informed Alaska Airlines that Boring had not within the past five years "been the subject of any disciplinary action that was not subsequently overturned," had not "been removed from flying status for any performance or professional competency reason," and had not "failed to complete any training due to performance." Clerk's Papers at 346-47, 349-50.

Boring was offered a position at Alaska Airlines in December 2000, and began training in February 2001. Soon after Boring's training began, Alaska's Seattle Base Chief Pilot, Jerome Arbiter, heard from a former Mesa Air pilot that Boring had been either terminated or disciplined at Mesa. Arbiter then contacted Casey Meeks, Mesa Air's ALPA representative in Phoenix. Arbiter learned from Meeks that Boring had been "suspended pending a decision on termination" and that the subsequent termination was overturned, but the suspension was upheld. Clerk's Papers at 130-31.

Arbiter also contacted Captain Khogyani at Mesa Air. Arbiter later stated that Khogyani confirmed the information



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given by Meeks, and added that he would not "hire or rehire Mr. Boring," and that Boring's problems stemmed from personality conflicts, "failure to upgrade," and CRM (crew resource management) issues. Clerk's Papers at 130-31. Khogyani later testified that he confirmed to Arbiter that Boring had been suspended and that a termination action had been started against him, but claimed that he did not tell Arbiter that Boring had personality conflicts, CRM issues, or that he had failed to upgrade. Khogyani testified that he believed this information came from Meeks.

In February 2001, Arbiter reported what he had learned by way of e-mail to Paul Majer, Alaska's Director of Flight Operations. He later sent a copy of this same e-mail to Jacqueline Guilliams, in April 2001. Guilliams testified that she confirmed Boring's disciplinary history with Mesa Air, in late April 2001. Majer testified that he told Captain Kevin Finan, an executive at Alaska Airlines and Majer's boss, that Boring may not have been completely honest in interviewing with Alaska Airlines.

In mid-April 2001, Majer and Arbiter received an e-mail from Barry Rainey, an Alaska Airlines Chief Pilot who was one of Boring's trainers. Rainey stated that he had received an unsolicited telephone call from an unidentified former Mesa employee about Boring. Rainey stated that the conversation left him with a poor impression of Boring's professional reputation and attitude, and that he had been told that Boring had several "training failures" that were not documented. Rainey also stated that he believed that Boring was experiencing training difficulties at Alaska Airlines, and suggested a review of Boring's status. Rainey later testified that he believed the former Mesa employee was credible, and that he sent the information to Majer and Arbiter so that it could be investigated. Majer and Arbiter later explained that they did not investigate whether Boring had experienced any training failures because they were primarily concerned with Boring's failure to disclose the prior disciplinary action at Mesa Air.



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On May 4, 2001, Majer, Arbiter, Guilliams, and Mark Cassidy, Alaska Airlines' in-house counsel, met with Boring and Dave Timmons, an ALPA representative who attended the meeting with Boring. When asked why he had not disclosed the disciplinary incident at Mesa Air when asked about discipline during Alaska's hiring process, Boring told Majer that the incident had been purged from his employment record and that he been instructed or counseled by Captain Ferverda at Mesa Air not to disclose the incident to any future employers. Boring then signed an authorization for Alaska Airlines to contact Ferverda. Majer, Guilliams, and Arbiter immediately contacted Ferverda by telephone. Majer subsequently testified that Ferverda told him that he had not told Boring not to disclose the discipline on a subsequent employment application.