Thursday, May 25, 2017
Cleveland Hopkins airport chief moved quickly to act against whistleblower who talked to FAA inspector, OSHA says
By Robert Higgs
The Cleveland (OH) Plain Dealer
A report by OSHA paints a picture of retaliation by leaders at Cleveland Hopkins International Airport -- followed by efforts to justify their actions - after a whistle-blowing employee, Abdul-Malik Ali, raised safety concerns to the FAA.
CLEVELAND, Ohio - A federal report paints a picture of retaliation by leaders at Cleveland Hopkins International Airport -- followed by efforts to justify their actions - after a whistle-blowing employee raised safety concerns to the FAA.
The report, an order issued by the Occupational Safety and Health Administration, says that in February 2015 then-airport Director Ricky Smith moved quickly, deciding within hours of learning that Abdul-Malik Ali, the airport's manager of field maintenance, had spoken with an FAA inspector.
And despite the city's contention that its actions were the culmination of performance issues and not retaliatory, the order says the city failed to provide basic evidence to support its claims.
You can read the order below. Mobile users click here.
"Mr. Ali feels at long last vindicated by OSHA's finding that airport officials including former director Ricky Smith and former acting director Fred Szabo retaliated against him. He hopes that the city will comply with OSHA's order," said attorney Subodh Chandra, who with attorney Donald Screen is representing Ali.
The city said it was still reviewing the order and declined further comment.
The case already has cost the city nearly $100,000 in penalties, recouped pay and benefits for Ali and attorney fees. But that could just be the beginning.
Still pending in federal court is Ali's civil suit that complains the city violated his constitutional rights when it stripped him of his position and re-assigned him to a job counting trash cans. And new filings in that case argue that
the retaliation continues today, more than two years after he was demoted.
What did OSHA say?
In its order issued Tuesday, OSHA says that Ali tried to raise concerns about inadequate staffing to meet the demands of a snow removal plan for the airport that was agreed upon by the FAA and the city.
Ali wrote that he never had the staffing levels needed to meet the demands of the plan and that overtime would be needed anytime there was snowfall.
That same afternoon Ali met with an FAA inspector for about an hour. He described the issues and showed the email he had sent to his superior. The inspector, according to the OSHA report, was alarmed by the staffing levels and responded by saying "this is unbelievable." He scheduled an inspection of the airfield for 3 a.m. the next day to observe snow operations.
That evening Smith decided to demote Ali.
One month later the FAA levied a $735,000 civil penalty against the airport for violating regulations regarding snow removal and aircraft safety.
By then Ali had filed his complaint with OSHA.
What happens now?
OSHA ordered the airport to reinstated Ali as field maintenance manager, remove any reference to the disciplinary action from his personal records, pay him more than $20,000 for lost compensation and pain and suffering and more than $75,000 for attorney fees.
Ali's reinstatement must be done quickly. The order said it cannot be delayed, even if the city appeals. But the city had not contacted Ali's lawyer on Wednesday about reinstatement.
The airport also must post notices and email all employees to tell that it was found at fault for retaliating against an employee for whistle blowing -- something routinely required in retaliation cases, an OSHA spokesman said.
What happens next?
The city could appeal the order. It has 30 days to ask for a hearing before an administrative law judge. If it doesn't object, the findings become final and are not subject to court review.
The city chose not to respond in March to an initial finding that Ali was a victim of retaliation.
The OSHA order states that the city said then it had a desire to settle the case and would not provide any additional rebuttal evidence. But the order also notes that no known settlement offers have been made.
Meanwhile, the civil suit remains. The city previously rejected overtures to settle that case.
In new filings this week in that case, Ali's lawyers say the city removed Ali's name from two successive revisions to the Department of Port Control's organizational chart that both were published in March. Ali's name had prominently appeared in the chart for more than 15 years.
"For the first time in 15 years he just disappeared," Chandra said.
Should there be more oversight?
In September 2015 - well after the FAA issued its fine over snow removal -- Cleveland City Council held a hearing to gather information on the FAA violations.
But City Council President Kevin Kelley was unsure Wednesday if a similar hearing should be held now on this case. He said he first would want to consult with Councilman Martin Keane, who chairs the Transportation Committee that deals with airport issues. Keane could not be reached for comment Wednesday.
Kelley noted that City Council doesn't have oversight on personnel decisions - that power is vested in the mayor's administration.
"Our oversight is broader in making sure that the airport has what it needs to get things done," Kelley said.
"I'm not positive what our oversight role should be," Kelley said. "Kind of a threshold question is it just a case or is it some kind of systemic problem."