BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
The case of aviation safety and consumer protection champion Kim Farrington suggests that, for federal workers, there is no statute of limitations on having done the right thing ahead of the bureaucratic norm—even on issues involving life and death.
An allegory on how whistleblower "cold cases" can have a chilling effect for those seeking to tell truth to power, the story of the former Aviation Safety Inspector (Cabin Safety) is a parable on how, after eight years of the Obama Administration, the advanced guard of modern Paul Reveres still risks becoming the lost patrol.
If President Donald Trump is truly interested in ratifying his campaign promise about “draining the swamp” of hidebound Washington, D.C. he might put high on his “to-do” list giving Farrington and other whistleblowers medals in a White House honor ceremony during the first 100 days of his Administration. Her case is not an aberration—13 plus years is longer than the norm, but it is hardly unprecedented, experts say.
“Ms. Farrington's case personifies why whistleblowers will not have a fighting chance for justice until they can go to district court and have their cases decided by jury trials, the same as corporate employees,” said Tom Devine, legal director of the non-profit Government Accountability Project that represents her.
“The Whistleblower Protection Act is compromised by being a prisoner to a dysfunctional administrative process,” Devine added. “Administrative judges have not been effectively trained in WPA rights and frequently butcher the statute that Congress has enacted.”
Farrington was a Federal Aviation Administration inspector who raised critical legal and safety concerns about AirTran’s questionable (some would say, virtually nonexistent) flight attendant training program. Her bosses were team leaders friendly (“in bed,” according to another FAA whistleblower’s widow) with AirTran's amalgamated management, following its merger with ValuJet, whose own stock had plummeted after one of its DC-9s crashed into the Everglades, killing all 110 people aboard. (In 2012, AirTran was itself acquired by Southwest Airlines.)
After raising the alarm about improper training of AirTran’s flight attendants, her bosses then made life unbearably tough for Farrington, before moving to oust her 13 years ago.
The FAA whistleblower had insisted, after two deaths resulting from a flight attendant not knowing how to open an exit door of a burning Northwest Airline DC-9, that crews actually receive required emergency B717 tailcone hand-on exit operation training. In doing so, Farrington became another kind of all-too-frequent bureaucratic fatality--that of a whistleblower seeking justice.
As Trump prepares to take the wheel from Obama, Farrington still waits for that justice to be done, essentially attempting to make bread from the stone of a difficult federal employee First Amendment adjudication process.
Since Farrington filed her case a number of other FAA whistleblowers have braved coming forward, often in the face of relentless intimidation and retaliation, to complain about potential safety lapses, unfair treatment (including supposed mental health de-certification for alleged paranoia and delusions), and possible official corruption. Several Congressional hearings reverberated into widespread media coverage.
Meanwhile, the life of the FAA's AirTran Airways overseer for cabin and aviation safety continues to twist slowly in the bureaucratic winds, still fighting wrongdoers and their ever-ready bureaucratic handmaidens. At 62 years old, she suffers the all-to-common consequences of a career that effectively spiraled down and crashed for protecting the public interest.
Megan Meola first met Farrington in 1984 when she was 26 years old, at the beginning of her own flight attendant career with Eastern Airlines, where the latter’s reputation as a gifted instructor was already soaring. “Let me tell you, that girl could teach like no other,” Meola remembered. “She had the gift of communicating her wealth of knowledge in a way we could understand and relate to and use on the flight line.”
That training proved to be key 11 years later, Meola wrote in a letter provided to the author, during a ValuJet takeoff at the Hartsfield-Jackson Atlanta International Airport, when the right engine of the plane she was working on “tore apart as we rolled down the runway.”
From the minute I heard the explosion till I climbed in the ambulance (for smoke inhalation) my actions and abilities were all thanks to the training Kim instilled in me. I never would have performed to the exemplary level that day if it hadn’t been for Kim “imprinting” me. What I mean by that is, she was so good at what she did, her knowledge so vast, that she taught me the correct way from the get-go. I never developed bad habits on the line because she taught me the right way from the start, so that when it came time to use the skills in the real world- i.e. when I had to command an evacuation of my burning airplane, I didn’t miss a beat.
I actually used my old Eastern cockpit key that I was by Kim the day I graduated from Eastern flight attendant training, to get in the cockpit to look the Captain in the eye so he would know immediately how grave the situation was in the cabin. As a result of my actions that day I was awarded the Apex Award for Outstanding Job Performance. I can honestly say without a doubt no one died on my airplane that day because of my training I was blessed to have received from Kim–not my training from ValuJet and I might add that even my training at AirTran …
The Meola memorandum was not limited to praise for Farrington, however, as her husband, Mark, was also an FAA whistleblower and Army veteran who suffered ear damage and hearing loss from flying on Black Hawk helicopters. In the FAA supervisory reprisal against him, she reported, the bureaucratic war left a casualty even more dear than the truth itself.
“When Mark brought safety issues up to his superiors, he was ignored and told they do things differently overseas,” she recalled. “Basically, look the other way.
When Mark did not and continued to do HIS JOB, he was accused of lying on a travel voucher he submitted for a cab. NO way he would have ever lied, he was honest like Kim and we were both on diplomatic passports representing the USA. I know firsthand the DEVASTATION done to my husband at the hands the FAA. … I believe if the FAA hadn’t taken his job and dignity he might still be here.
In telephone interviews from her home in Florida, Farrington noted that her positions prior to her hiring by the FAA focused on conducting emergency procedures in aircraft ground training, developing the programs from scratch, creating necessary manuals on required federal procedures. Before she raised serious concerns as an FAA inspector about the spurious training flight attendants were receiving, Farrington had scored high professional marks from her FAA supervisors. As Gabriel Bruno, manager of the Orlando FAA office, later testified: “I selected Ms. Farrington because of her extensive qualifications.”
The attitude of her senior FAA supervisors changed radically after Farrington began to raise troubling issues to even high-ranking officials about how her bosses ignored her trenchant findings. She questioned the permitted absence of federal required aircraft exit replicas to train pilot and flight attendant crewmembers to deploy emergency exit slides that were actually different from those used by the airline; “that flight attendants had not been trained on the B-717 tail cone exit and that (as a result) passengers were at risk.”
Concerned that the training device for the B717 tailcone exit, meant to prepare flight attendants to successfully evacuate passengers in 90 seconds period to in an emergency, was never provided by AirTran for the emergency hands-on training required by federal aviation regulations. Farrington was, according to another witness, “pretty adamant that she wanted all the flight attendants immediately taken off line and given hands-on training on the differences between the two slidepack covers.” Instead, he said, AirTran decided that “they were going to have posters of the DC-9 slide pack and the 717 slide pack and that they weren’t going to do hands-on training.”
Asked in a hearing on her case by the ostensible Merit System Protection Board (MSPB), which calls itself “an independent, quasi-judicial agency in the Executive branch that serves as the guardian of Federal merit systems,” Farrington was asked if the issues she raised were not, in fact, much different than those faced by other air carriers. “It was hugely different because the program had never, ever, ever met (federal) regulatory requirements,” she noted. “They never had lesson plans, they never had teaching guides, they never had a 717 tail cone mock up.”
In testimony taken by the MSPB in Farrington’s case, a former co-worker strongly endorsed his fellow FAA inspector’s concerns. He noted that, aviation safety inspectors have to be able to communicate with the airlines with which they work; “It’s imperative.” Asked about her criticism of the flight attendant manuals issued by the airline, he replied: “It wasn’t worth the paper it was written on.” As to her worries that the emergency exit training devices were grossly misrepresentative of actual airplanes:
It was like a 6th grade cut out. … If you are going to practice on how to open a door or how to work a tail cone, you have to have substance. You can’t use cardboard boxes or cardboard stuff like that. … Back in those days, AirTran was not spending any money whatsoever. … (Kim) was getting blasted by management.
Having noted for three-and-a-half years “deficiencies” that seemed to swerve into the potentially “catastrophic” category, Farrington had realized her mid-level position in the existing chain of command itself conspired against public safety. The mutual backscratching between Farrington's immediate supervisors and AirTran representatives caused Farrington to break through the glass ceiling of professional turpitude and to lodge a complaint up and outside her chain of command.
On May 12, 2003, Farrington sent an 11-page report to Fred Walker, her fourth-line supervisor and the then-manager of the Flight Standards Division in the FAA’s Southern Region, in which she disclosed that a “lack of management support and funding approval has lead to inadequate cabin safety surveillance and FAA technical resource to our customer.” She then enumerated a drum roll of faulty safety practices, running from failure to budget anywhere near the resources to troublesome experiences with recent AirTran aircraft emergency evacuation of passengers. Although spelled out in dry bureaucratize, Farrington’s own anger and anguish stood out.
In testimony later, Farrington recalled that upon giving Walker copies of her disclosures, “He kind of look through it and he said, ‘Kim, are you sure about all this?’ and I said, ‘I’m absolutely sure,’ and he said, “Are you willing to throw yourself on the sword for this, Kim?” and I said, ‘Absolutely.’”
Asked by Farrington’s lawyer about whether the airlines were a more important FAA customer than the traveling public, Walker demurred, noting, “Sometimes they [the traveling public] didn’t have the political clout that the airlines had.”
First her managers held a meeting with Farrington that they called “employee counseling.” At the same time, they told her that—contrary to her job description—under no circumstances was she to initiate or accept any communication in any way with anyone at AirTran. Meanwhile, insider detractors launched a vicious behind-the-scenes campaign against her.
It was only after the unceasing reprisals against Farrington had already resulted in her being drummed out of her duty location, that Air Transportation Division Manager Matthew J. Schack wrote a memo on November 1, 2003 in which her concerns were fully vindicated and her interpretation of the regulation in question was confirmed to have been accurate all along.
There had been confusion with regard to the training requirements of differences between the DC-9 tailcone door and slidepack versus the B-717 tailcone door and slidepack. Previous statements were incorrect that the requirements for hands-on training was [sic] based on aircraft type, not on differences to the emergency exits. … In order for operators of the B-717 to be in compliance with (laws and regulations), all crewmembers must complete hands-on training on the B-717 tailcone door and emergency evacuation slide pack.
During the last year of George W. Bush's presidency and after she lost her job, Farrington—buoyed by a number of other FAA employees who had come forward with their own supposedly "protected" disclosures"--file a complaint about her treatment with the Office of Special Counsel, the federal agency charged with whistleblower protection.
Farrington's delay in filing with the OSC, having waited until 2008, created a winding and still-pending Achille's heel for federal whistleblowers. Four years later, as President Obama ran for reelection, her case seemed to receive a boost when Congress passed the Whistleblower Protection Enhancement Act. In the meantime, her case returned to the Merit Systems Protection Board in 2012 after remanding it for further adjudication after being dismissed two years earlier.
Then in June of last year, a ruling released by MSPB's Atlanta region, Administrative Judge Sharon J. Pomeranz denied Farrington's appeal, in part because key witnesses "were not available to testify at the hearing ... because they could not be located." The whistleblower's delay in bringing the case, she wrote, "has caused material prejudice to the agency's ability to defend itself."
"The appellant has provided no satisfactory explanation for her delay in bringing this action," Pomeranz found. "Although I have found the requirement to cease communication with AirTran to be a personnel action, I find a preponderance of the evidence does not support that it was done in retaliation for any protected disclosures the appellant (Farrington) might have."
“Kim has been living a slow death since 2003 when her nightmare began,” remembered her friend Megan Meola.
I know for a fact that Kim recommended to … AirTran that a proper 717 mockup was needed for flight attendant and pilot training, which we did not have and was clearly shown to be a contributing factor to poor flight attendant performance during the AirTran accident in LGA in March of 2003. Flight attendant’s actions during the evacuation showed that she didn’t know the difference between our two aircraft types, the DC-9 tailcone and a 717 tailcone. Because of her lack of knowledge, Kim recommended that all flight attendants receive proper hands-on training for the 717 tailcone as soon as possible. AirTran disagreed with her recommendations and allowed … the head of AirTran Inflight, to go to the FAA and complain that Kim was “picking on them.” The FAA clearly made the wrong and inappropriate decision, to take the side of AirTran and not stand behind their own inspector’s recommendation and thus began Kim’s nightmare, just as in the case of my husband’s.
Since that time Farrington and her lawyers have asked the MSPB that the Pomeranz postulates be overturned, but the outlook remains something less than optimistic.
“Even when the Merit Systems Protection Board strikes down those rulings, generally the Board sends it back to the administrative judge to try again,” said GAP’s Devine. “They punish the whistleblower by leaving them twisting in the wind for several years and then repackage the original ruling with a new excuse to deny them relief. “
Meanwhile, on January 2, 2017, after an issue with cabin pressure resulted in oxygen masks dropping from the ceiling, a Southwest Airlines plane flying from San Antonio, Texas, to Orlando, made an emergency landing in Jacksonville, Florida.
Southwest flight attendants who may know something about the real reason for any airborne snafu there, or elsewhere, may—like those of other airlines—might remember that hands-on professionalism of passenger safety militant Farrington, and what meant to her career.
One of Kim Farrington’s heroes when she grew up was Robert F. Kennedy (she still has a collection of memorabilia from his 1968 presidential campaign), who once remarked, “Every time we turn our heads the other way when we see the law flouted, when we tolerate what we know to be wrong, when we close our eyes and ears to the corrupt because we are too busy or too frightened, when we fail to speak up and speak out, we strike a blow against freedom and decency and justice.”
Farrington took that message to heart throughout her career. At first, she wanted to be a nurse. However, when she heard of the work done by flight attendants, she found a way to pour her heart into airline safety.
Her old friend and colleague Megan Meola knows exactly what that meant to her own flying family.
When what happened to Kim then happened to Mark, he reached out to her for some guidance in getting started on a whistleblower claim. Kim spent hours assisting him in his case, which he ultimately lost after being dragged through the mud for an ETERNITY, just to show you the kind of person Kim is. She still had all of her mess going on but cared enough to take all that time to help out a fellow co-worker. That is the way she is and why so many people love and respect her.
“The FAA has long had the reputation as the Tombstone Agency because it is so irresponsible about public health and safety,” Devine noted. “Their negligence goes across the board against those who try to serve the public. The FAA has its own personnel system and that means that it is largely insulated from presidential leadership; the only area in which FAA employees have normal civil service rights is under the Whistleblower Protection Act.”
Mr. Trump, the Washington swamp teems with alligators. If your business expertise is really to be directed to protect and defend the American people, it is time that out-of-control bureaucratic fiefdoms are properly addressed. That is a truly bipartisan challenge.