Asia Pacific Airlines Pilot Whistleblower Lawsuit

Asia Pacific Airlines to Pay $2 Million to Pilot Fired for Raising Aircraft Safety Concerns

In late 2024, the US Department of Labor (DOL) ordered Asia Pacific Airlines, a wholly owned subsidiary of Tan Holdings Corp. operated by Aero Micronesia Inc., to pay $2 million to a pilot that the airline fired after the pilot, “repeatedly expressed concerns that the airlines’ maintenance team approved the aircraft maintenance and repair reports without diagnosing the engine problems correctly.” Notably, this was not the first time the airline had been accused of firing a pilot who had raised safety concerns. This case highlights the protections that are available to whistleblowers, the importance of coming forward when companies fail to do what is right, and the ability to seek just compensation when companies violate whistleblowers’ legal rights.

While blowing the whistle is important under any circumstances, it is most important when people’s lives are on the line. By exposing Asia Pacific Airlines’ failures, this pilot may have saved numerous lives, and the $2 million that he received is ultimately a small token for the invaluable service he provided by doing the right thing and refusing to bow to his employer’s pressure to ignore what he was seeing.

U.S. Department of Labor Finds that Asia Pacific Airlines Illegally Retaliated Against Hawaii Pilot Under Federal Law

Federal whistleblower laws like the False Claims Act protect employees in all industries, but there are multiple industry-specific federal whistleblower laws as well. One of these is the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (commonly referred to as “AIR 21”).

Under AIR 21, airlines are specifically prohibited from retaliating against whistleblowers who report suspected violations of federal aviation safety laws or regulations. The law states, in pertinent part:

“A[n airline] may not discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) . . . provided, caused to be provided, or is about to provide (with any knowledge of the employer) or cause to be provided to the employer or Federal Government information relating to any violation or alleged violation of any order, regulation, or standard of the Federal Aviation Administration or any other provision of Federal law relating to aviation safety under this subtitle or any other law of the United States . . . .”

The law also prohibits retaliation against employees who initiate formal legal proceedings, who testify at such proceedings, or who otherwise “assist[] or participate[]” in these proceedings. When airlines violate the law, the DOL has the authority to order employees’ reinstatement, order airlines to pay compensatory damages, and order airlines to “take affirmative action to abate the violation” of the employee’s statutory rights.

Many other federal whistleblower laws include similar protections—whether employees report safety violations, wage violations, or other violations of federal law. The damages available to employees who experience unlawful retaliation generally include back pay plus interest, future salary (if an employee is not reinstated), restoration of 401k contributions, emotional damages, reasonable attorney fees, and compensation for other financial and non-financial losses. When companies engage in unlawful retaliation, they can be required to expunge the employee’s record, update their company policies, and take other remedial actions as well.

Pilot Repeatedly Raises Concerns About Aircraft Safety and Refuses to Fly

In this case, the DOL awarded the pilot more than $2 million in wages, legal fees, and additional damages. While the airline argued that it had lawfully disciplined and terminated the pilot as a result of his refusal to fly, the DOL disagreed. Based on the fact that the pilot repeatedly raised concerns about the company’s potentially catastrophic disregard for the risks posed by inadequate maintenance of its cargo planes, the DOL found that the pilot’s complaints were legally protected, and the termination of his employment violated his federally protected rights.

Asia Pacific Airlines Reprimands, Suspends, and Ultimately Fires Pilot

Despite the protections afforded by the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century—and despite the fact that the Asia Pacific Airlines had faced accusations of worker abuses in the past—it engaged in a series of prohibited retaliatory actions against the pilot. While the DOL has not named the pilot publicly, citing Department policy, his law firm has identified him as Brant Swigart. According to the DOL, while Swigart came forward in accordance with AIR 21, the airline nonetheless reprimanded and suspended him, before ultimately terminating his employment after he refused to fly an aircraft that experienced an uncommanded engine shutdown.

Federal Aviation Administration (FAA) Determines Pilot Accurately Assessed Diagnostic Errors

After the DOL opened its investigation into the airline’s conduct related to Swigart’s employment, the Federal Aviation Administration (FAA) opened an investigation into the pilot’s allegations of systemic safety failures within the airline’s operations. As reported by the US Department of Labor (DOL):

“OSHA learned the pilot repeatedly expressed concerns that the airlines’ maintenance team approved the aircraft maintenance and repair reports without diagnosing the engine problems correctly. A parallel investigation by the U.S. Federal Aviation Administration determined the pilot accurately assessed that the Asia Pacific Airlines’ maintenance team used the wrong procedure to troubleshoot and diagnose the engine malfunctions, making it impossible to identify the cause of the problem and fix it before clearing the aircraft to fly.”

As the FAA’s findings were consistent with the pilot’s allegations, the FAA also imposed penalties against the airline. Shortly before the DOL announced its decision in favor of Swigart, the FAA announced that it was imposing $2.9 million in penalties against Asia Pacific Airlines for alleged violations that included, “failing to document engine monitoring and continually assess engine reliability for Boeing 757 aircraft used in Extended-range Twin-engine Operations Performance Standards (ETOPS),” and “alleged violations of safety risk management regulations.”

Occupational Safety and Health Administration (OSHA) Finds Airline Engaged in Wrongful Termination

Based on its investigation, the Occupational Safety and Health Administration (OSHA)—which is part of the DOL—determined that Asia Pacific Airlines wrongfully terminated Swigart’s employment. While the airline had the right to appeal OSHA’s findings to the DOL’s Office of Administrative Law Judges, we have not found a publicly available record of the company doing so.

In reaching its conclusion, OSHA made scathing accusations against the airline. According to OSHA Assistant Regional Administrator Ryan Himes:

“Asia Pacific Airlines has shown an unacceptable and potentially catastrophic disregard for safety and shamefully viewed pilots’ safety concerns as employee conflicts. . . . The outcome of this investigation should remind all employees that they are legally protected and can raise safety concerns without fear of retaliation by their employer.”

As noted above, Asia Pacific Airlines has faced similar accusations in the past. An Administrative Law Judge found that the airline violated AIR 21 when it fired another pilot who raised safety concerns in 2019; and, according to the DOL, “OSHA has received safety complaints from several of the airline’s pilots,” over the past decade.

DOL Awards Pilot $2 Million for Whistleblower Protection Violations

Based on OSHA’s findings, the DOL issued Swigart a decisive and substantial award. The DOL awarded the pilot more than $2 million that covered:

• Back pay plus interest
• Eight years of future salary
• Restoration of 401k contributions
• Emotional damages
• Reasonable attorney fees
• Expungement of the pilot’s employment record

The DOL also ordered Asia Pacific Airlines to provide training to current employees on their rights under federal law. The scope of the DOL’s award reflects not only the seriousness of its findings in this particular case, but also the breadth of the remedies that are available to employees who lose their jobs after attempting to do the right thing.

Whistleblower Retaliation: When Can (and Should) Companies Be Held Accountable?

As this case makes clear, companies can be held accountable for retaliating against whistleblowers. While this case specifically involved reported violations of AIR 21, as we said above, many other federal whistleblower statutes provide similar protections. Many state whistleblower statutes provide similar protections as well.

So, when can (and should) whistleblowers file claims for retaliation?

Broadly, filing a whistleblower retaliation claim requires proof of two key factors: (i) the employee’s eligibility for protected whistleblower status; and, (ii) an adverse employment action based on the employee’s decision to blow the whistle.

1. Establishing Eligibility for Protected Whistleblower Status

There are multiple ways to qualify as a protected whistleblower. With that said, there are also means of coming forward that don’t qualify for whistleblower protection, so individuals who decide to come forward must ensure that they do so through the appropriate means.

The steps that employees need to take to qualify as a whistleblower depend on the specific statute that applies. With this in mind, generally speaking, means of coming forward that can entitle employees to anti-retaliation protections include:

• Filing a formal written complaint with their employer
• Filing a qui tam lawsuit under the federal False Claims Act
• Filing a formal whistleblower complaint with OSHA or another federal agency
• Filing a formal whistleblower complaint under state law

In contrast, means of coming forward that generally will not entitle employees to statutory protections as a whistleblower include:

• Disclosing the employee’s concerns to news outlets
• Disclosing the employee’s concerns on social media

Exceptions apply, and employees who come forward publicly may still qualify for protection in some cases. However, this approach can be risky. In particular, employees need to be careful about making public disclosures that violate company policies or that include proprietary or confidential information. As a result, we strongly recommend consulting with an experienced whistleblower attorney if you are interested in coming forward.

If you consult with a whistleblower attorney before you come forward, your attorney can help you make informed decisions about your next steps. If you decide to come forward, your attorney can also assist you with making a protected disclosure. At Oberheiden P.C., we represent whistleblowers in both the public and private sectors, and our attorneys rely on extensive experience to document our clients’ eligibility for protected whistleblower status and to work with the appropriate authorities on our clients’ behalf.

2. Proving a Retaliatory Adverse Employment Action

When you qualify as a statutorily protected whistleblower, your employer is prohibited from retaliating against you. This means that your employer cannot take adverse employment action against you based on your decision to blow the whistle.

As a whistleblower, you are not completely immune from losing your job or facing other adverse employment actions. Your employer can still make employment-related decisions that are unrelated to your whistleblower status. For example, if your employer conducts a large-scale reduction in force (RIF) or eliminates your department and you lose your job as a result, this generally would not be considered an unlawful retaliatory action. Likewise, if your employer takes disciplinary action against you in good faith, this is permissible—the fact that you are a whistleblower notwithstanding.

However, any adverse employment action must truly be unrelated to your decision to serve as a whistleblower. For example, if a purported disciplinary action is nothing more than a pretext for a retaliatory firing, then the firing is still unlawful. Employers will often try to use pretexts to justify removing whistleblowers from their positions; and, in these cases, demonstrating the pretextual nature of their actions is a key step toward establishing liability.

Unlawful retaliatory adverse employment actions can take many different forms. While unlawful firings are common, other adverse employment actions can support retaliation claims as well. Some examples of unlawful retaliatory adverse employment actions include:

• Termination
• Demotion
• Pay reduction
• Reassignment
• Relocation
• Passing over for promotions or other opportunities

Withholding or revoking benefits such as the ability to work from home, discriminating against whistleblowers, and engaging in harassment campaigns can all constitute unlawful adverse employment actions as well. Whistleblowers who experience any form of unlawful adverse employment action are entitled to appropriate remedies—which may include (and are not necessarily limited to) those listed above.

FAQs: The $2 Million Whistleblower Award Against Asia Pacific Airlines

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