The Sixth Circuit ruled in favor of the employer yesterday in Yadav v. L-3 Communications Corp., a case brought under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR21”). The case involved an employee, Avinash Yadav, who alleged that he had been terminated in retaliation for complaining to his supervisors about what he perceived to be violations of Federal Aviation Administration (“FAA”) regulations. An administrative law judge dismissed the complaint, finding that L-3 showed by clear and convincing evidence that it would have terminated Yadav absent any protected activity. After the Department of Labor Administrative Review Board (“ARB”) affirmed the administrative law judge’s finding, Yadav appealed to the Sixth Circuit.
Yadav came to believe that the process L-3 used to develop an airplane navigation software called “SmartDeck” differed so drastically from the process it reported using to the FAA that it violated FAA regulations. He reported as much to his supervisor, Wendy Ljungren. Ljungren advised Yadav to “discuss his concerns with other colleagues, to research whether the FAA accepted reverse engineering, and to report his findings to her.” He did not do this. Instead, after some time passed, he became engaged in an extended email exchange with Ljungren and her supervisor Adrienne Stevens that culminated in an ethics investigation into the SmartDeck development process. That investigation uncovered no ethical deficiencies.
Yadav then escalated his concerns to L-3’s Chief Operations Officer, Charlie Schafer. In response, Schafer flew Yadav out to New York to discuss his concerns in person. Eight days later, Yadav was terminated. In Yadav’s four-page “Termination Memo,” L-3 cited forty-five examples of Yadav’s conduct falling below company expectations. Yadav argued that despite this, L-3 had failed to show by “clear and convincing evidence” that the employer would have terminated him had he not engaged in reporting what he perceived to be FAA violations.
The Sixth Circuit held that the evidence showed that L-3 would have terminated Yadav in the absence of his complaints about the SmartDeck development process. The Court noted that a) emails sent among Yadav's superiors reflected pervasive concern about Yadav's inadequate performance; b) there was no evidence that L-3 leadership was engaged in any effort to conceal the problems with the SmartDeck development protocol that Yadav raised; and c) Yadav's emails to Ljungren and others reflected his performance deficiencies – specifically, a condescending tone toward his supervisor, inappropriate comments about her, refusal to follow explicit requests, and repeated threats to resign or otherwise abstain from his duties if L-3 did not meet his demands.
“It is important for prospective whistleblowers to remember that blowing the whistle does not offer absolution from other employment issues,” explained Debra S. Katz, a partner at the employment law firm of Katz, Marshall & Banks, LLP, which represents AIR21 whistleblowers. “You may still be legally terminated from your job, if the employer can prove by clear and convincing evidence that it would have fired you regardless of your whistleblowing. Fortunately for whistleblowers, this is a high bar for employers to meet.”