A Whistleblower Retaliation Case: Lewis-FAA

Whistleblower histories tend to be lengthy, but here’s the condensed version of how a 22-year FAA air traffic controller spoke up about two serious safety incidents (and witnessed others), then was forced into early retirement…
…click on the gray-box links to view supporting documents…
  1. March 1987: A newly hired air traffic controller reports to his first facility, a very slow tower in Oregon. He finds rampant timecard fraud and frequent TV viewing in the tower cab, but he has to ‘fit in’, so he joins the culture and says nothing.
  2. March 1989: He has earned an excellent annual performance appraisal, a letter of commendation, and a cash bonus, and is ready to promote to a busier tower. He then witnesses a near mid-air collision by a coworker who had been watching the NCAAcaused a near-midair collision in March ploads/19890307..-AvEd-Letter-of-Commendation-signed-by-Coppinger.pdf basketball playoffs while working alone in the tower cab. He speaks frankly to his coworkers, saying he could not lie if officials investigated (they never did investigate). The tower manager, a former controller, is the one person who reacts. Suddenly, Lewis is threatened with the possibility of needing a psychiatric evaluation. Lewis lays low for two years.
  3. February 1991: Lewis has his annual performance appraisal which is just like it has been for the past two years: on paper he is average, but the verbal presentation by his manager is very hostile. Lewis is anticipating the birth of his first child in the next month, and is cognizant of his desire to NOT be enduring this ongoing work stress while trying to be a father. So, Lewis suggests to his tower manager that he would willingly volunteer for the psychiatric evaluation, in the hopes that the impasse can be cleaned up. The evaluation is arranged and paid for by FAA.
  4. May 1991: The week after the evaluation, the tower manager assaults Lewis. So, Lewis complains higher (all the way to Joe Stevens, manager at the Administrator’s Hotline). Eight days after the assault, Chuck Davis visits from the Regional Office in Renton (ANM-540); Davis and John Coppinger (manager of the Oregon Terminal Hub) meet with Lewis and acknowledge the assault, but insist Lewis had ‘provoked’ it. To resolve the situation, Lewis voluntarily accepts a transfer to the tower at Salem, OR. (…it is not known if the Troutdale manager was ever disciplined for the assault..)
  5. October 1994: The tower at Salem, OR is contracted out, and Lewis is reassigned to the TRACON at Portland, OR. He is washed out from training in less than a year. He is encouraged to apply for a job climbing radio antennas. He declines, and is then offered two ATC openings far from his home: one at San Diego Brown Field, and another at Broomfield, CO. Lewis presents the FAA manager with a current FAA solicitation showing dozens of openings at other chronically understaffed small towers, mostly in California and many much closer to his Oregon home, but the limited reassignment offer is not revised. Manager Joe Foster says: “we want you to succeed”; this is the same guy who had encouraged Lewis to start a new career climbing radio antennas. Lewis accepts the assignment to Broomfield, CO under duress and leaves his wife and two young children at the Oregon family home.
  6. February 1996: Lewis begins his new job as an ATC at Broomfield, CO. He rents a room in a Boulder house and takes a second job at Target, to continue to provide for his family. During the next two years, Lewis is able to fly home every couple months for time with his family, who remain nearer to extended family.
  7. February 1998: Lewis swaps duty locations with a controller in the Bay Area who wants to be closer to family in Kansas. Lewis reports to a busy San Jose tower (Reid-Hillview), while the other controller reports to Pueblo, CO. Lewis quickly certifies and begins weekly airline commutes to his family (now three young children) near Portland, OR. He even coaches his oldest daughter’s soccer team for five consecutive seasons.
  8. May 1999: A supervisor at Reid-Hillview fails to call traffic and an actual midair collision happens between a helicopter and a Cessna. Fortunately, the Cessna pilot dove at the last second; the tips on his propeller were ‘curled’ while leaving nicks in the skids of the helicopter, but both were able to return to safe landings. FAA management sweeps the incident under the rug, but Lewis presses for the obvious need to report and investigate.
  9. May 2000: Lewis promotes to an ATC position at Oakland Center, in Fremont, CA. His new duties are principally working flights across the north Pacific Ocean. He is assigned numerous overnight shifts, and accepts many overtime shifts, too. He is able to commute home to his family via airlines nearly every week. But, over time, he realizes the work schedule and the weekly commutes are causing substantial accumulated fatigue. So, in June 2006, he withdraws from radar training and asks to be reassigned to a small tower. At this point in his career, Lewis had been fully certified at four different towers: Troutdale, Salem, Broomfield, and Reid-Hillview.
  10. October 2006: His request to transfer is accepted, and he reports to work at the tower at Concord, CA. He was intending to work there the final 8-10 years of his ATC career. He quickly certifies on all positions except for one; his Local Control training is delayed for months, so he waits. Given his full certification at four previous towers, there was no valid reason for this extended delay.
  11. February 2007: Just four months into his new work assignment, Lewis is inexplicably locked out and told to mail in his badge and key. He is also threatened with discipline if he does not spend his own $2,000 for a psychological evaluation. His union (NATCA) offers no support. [In fact, the union informs Lewis via email that they will withdraw his grievance “with extreme prejudice” if he files a grievance.] So as not to be ‘insubordinate’, he gets the evaluation, but learns later that the FAA officials refused to talk to the PhD psychologist.
  12. Late June 2007: The Regional Flight Surgeon then attempts to forcibly retire Lewis on a medical disability. Lewis immediately appeals.
  13. Early July 2007: The Regional Flight Surgeon then emails an LR Specialist (Labor Relations) with an invitation to come look at Lewis’ confidential medical file, which he is leaving on his desk for a full week. The LR specialist (Fossier) forwards the email invitation to three Air Traffic managers: Barry Davis, Dennis Sullivan, and Jason Ralph.
  14. January 2008: Lewis eventually wins his appeal when the same Regional Flight Surgeon fully restores Lewis’ ATC medical clearance. Lewis has been locked out (and mostly in a paid status) for nearly a year; he now expects to be called back to work, soon, but hears nothing new for the next three months.
  15. April 2008: Out of the blue, Lewis receives a call from an LR Specialist, Glen Rotella. Mr. Rotella asks Lewis to withdraw the Unfair Labor Practice (ULP) Lewis had filed on 11/13/2007. Lewis and Rotella have a positive discussion and come to an agreement. Lewis accepts Rotella’s proposal, which includes allowing Lewis to file a new grievance ‘to be made whole’ on roughly $40,000 in pay withheld during the illegal and undocumented lockout (which at this point had been ongoing for fourteen months). Immediately after the discussion, Rotella sends an email to District Manager Andy Richards, asking he send a letter to Lewis ASAP, confirming Lewis’ paid work status and FAA’s intentions on Lewis’ return to work (Richards promptly sends a certified letter, received by Lewis on 4/21/2008). Four hours after the Lewis-Rotella phone discussion, a third LR Specialist at the Regional Office (Marable) sends an Clemortee ‘Ros’ Marable’s email to Andy Richards with an attached draft, proposing to suspend Lewis for two weeks prior to his return to work. [NOTE: all of these records were carefully concealed when FAA’s attorneys (Naomi Tsuda and Don Bobertz) were opposing the Lewis’ MSPB Appeal in early 2009; records showing the draft 14-day suspension proposal were not revealed until more than 2-years later, in April and November 2011]
  16. May 2008: Lewis files the new grievance on 5/1/2008. He mails both the signed ULP withdrawal and the new grievance to LR Specialist Rotella. Rotella then makes copies and forwards them in a 5/7/2008 email to other FAA officials (Andy Richards, Jason Ralph, and Patricia Hardy). Just one week later, LR Specialist Marable, who had been drafting a formal letter proposing to suspend Lewis, sends an email to Lewis’ District Manager (Richards) advising she has begun drafting the totally new, first-draft letter that now proposes to fire Lewis. At this point, Lewis had been locked out from work for fifteen months. The sole justification for the ‘new’ removal proposal was behavior alleged about Lewis (but contradicted by coworker sworn statements) in a fourteen-month-old report. Lewis knows nothing about this removal proposal. He also knows nothing about the breach of his confidential medical records or a series of slanders (most of this becomes revealed years later, via FOIA responses AFTER Lewis had been forced to retire).
  17. July 2008: He is still locked out and at home in Oregon when he finds a FedEx-overnighted letter sitting on his porch. Lewis expects the letter to be about his return to work, as was promised by District Manager Andy Richards three months earlier (see April 2008, above). Opening the letter, he confirms it is from Andy Richards, but instead of offering details on a return to work plan, Lewis is reading a 6-page letter proposing his removal. Later that day, Lewis shares his shock with the LR Specialist (Rotella) who had negotiated the agreement in April. Rotella is also stunned, and sends an email to the NATCA Regional VP (Ham Ghaffari) and his lead LR person, Mike Hull. It was not until early 2011 that Lewis got a copy of this email and also learned that, in an earlier career, Rotella had been a local union official.
  18. August 2008: Lewis sends an email to Andy Richards, seeking to correct the evident retaliation. Mr. Richards blows off Lewis’ pleadings, replying with a non-responsive one-word email.
  19. August 2008: Lewis completes a detailed rebuttal to the firing proposal, and overnights a copy to Andy Richards. But, unbeknownst to Lewis, Andy has been dispatched to the Dallas-Fort Worth area, to help clean up a management failure there, revealed by whistleblower Anne Whiteman. Subsequent FOIA records indicate Lewis’ rebuttal was not reviewed by Mr. Richards, but instead was ‘handled’ by Jason Ralph and Mark DePlasco, with guidance from Tony DiBernardo.
  20. August 2008: The day after submitting his rebuttal package, Lewis mails a new grievance, pointing out management’s failure to comply with the imposed NATCA work rules. The core of the failure was that Lewis’ removal proposal was based solely on a Report of Investigation (ROI) which included exhibits that had never been shared with Lewis in a timely manner (to ensure his right to a timely rebuttal).
  21. November 2008: On Halloween, Lewis receives a letter signed by acting District Manager Mark DePlasco, announcing the decision to proceed with his removal, effective on Thursday, 11/6/2008, two days after history was made with the election of Barack Obama. At the moment the election was called for Obama, Lewis was in town, having dinner and working online – watching the results while drafting an email to Ros Marable. Lewis sent this email to Ms. Marable just minutes after the announcement.
  22. December 2008: Lewis files an Appeal at MSPB. He later learns that, although MSPB was created to protect merit systems and stem management abuses, in fact they have evolved into a body that pushes nothing but settlements, mostly with employees accepting retirements. No hearing is ever held. The FAA attorney fails to produce all of the key exculpatory records. Lewis is forced to ‘settle’ by retiring at earliest eligibility, in trade for FAA giving him back the retirement annuity he had earned, but which they had taken away with the November firing.
  23. May 2009: Lewis officially retires when he turns age 50. He had already filed a PFR (Petition for Review) asking MSPB to cancel the settlement due to fraud by the FAA Regional Counsel (MSPB administratively rejects the PFR in June). Lewis also begins a series of FOIA requests seeking records he had not yet seen but knew had been concealed from the MSPB Appeal process.
  24. June 2009: Lewis begins to receive a long series of key records, all of which FAA officials had conspired to conceal from earlier FOIA responses and MSPB Discovery. FAA officials had concealed some of the most exculpatory records for more than three years.
  25. December 2010: Thirty-one months earlier, on 5/1/2008, Lewis had filed a grievance (the one that had triggered the retaliatory removal). FAA officials had flatly rejected this grievance at the local, District, and Regional level. The Union had requested an arbitration way back in late August 2008, but no progress was made for years. Finally, in late 2010, Lewis provides hundreds of pages of records to the union. NATCA’s LR lead, Mike Hull, makes a presentation to a ‘Mediation to Finality Panel’, and a formal decision is issued directing that Lewis’ grievance shall be sent to a full arbitration hearing.
  26. June 2011: First efforts are made to schedule an arbitration hearing. Both NATCA and FAA change their designated advocates repeatedly, and delays continue. A hearing is finally set to happen on February 16-17, 2012, to be heard by Arbitrator Eric Lindauer at the FAA’s UAL CMO Office, in Daly City, CA.
  27. February 2012: Just two weeks before the scheduled arbitration hearing, NATCA’s First Chair Advocate (Jay Barrett) sends an email to Lewis, asking him to provide a list of potential hearing witnesses. Very short notice. Lewis replies with a list showing two LR Specialists (Rotella and Marable) and his District Manager (Andy Richards); Lewis is unaware that FAA has already stated a position that NATCA had failed to meet a deadline, so it is too late for NATCA to request witnesses. Then, a week before the scheduled hearing, FAA’s advocate sends a lengthy email to the NATCA advocate declaring FAA’s intention to unilaterally apply a ‘remedy’ and close the grievance matter. NATCA promptly accepts. This served both the union and management well, as they no longer feared being put on the record…

Throughout all of this, Lewis had repeatedly and clearly communicated to his union representatives (the NATCA advocates) the critical need to take this matter to arbitration so that officials might be interviewed and a hearing record produced. There was no ambiguity that the hearing was far more important than any money, as it was the only way for Lewis to achieve the Due Process he had been denied for five years.

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Here are some links to Timelines and other documents:

FLRA ULP’s filed against both FAA and NATCA:

Lewis filed a pair of Unfair Labor Practices on 8/10/2012. He then submitted an 18-page Affidavit and 61 Exhibits. This is the most up-to-date chronology of the FAA Retaliation against Lewis, and clearly details numerous inappropriate actions by both FAA managers and the controllers union NATCA. Here is a link to a page with links to Lewis’ Affidavit, an Index of Lewis’ Exhibits, and PDF’s of each Exhibit.