At the time of U.S. President Trump’s announcement to appoint Stephen Dickson to lead the Federal Agency in charge of safety for air- travel, FAA was already under scrutiny for allowing the troubled Boeing 737 MAX 8 to carry passengers. The scrutiny may get a lot worse if Trump nominee Stephen Dickson was actually confirmed to lead FAA. According to the FAA website, the mission statement of this government organization is to provide the safest, most efficient aerospace system in the world.
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U.S. Senator Maria Cantwell representing the State of Washington, the home of Boeing, agreed and said on Friday, she didn’t want Stephen Dickson to be confirmed and will oppose the nomination for Dickson to take the helm of FAA.
The issue: If Dickson was not able to ensure safety compliance at Delta Airlines, how could he lead the U.S. aviation regulator in charge of aviation safety for the entire country?
Cantwell bases her opposition on Dickson’s defense of a decision to compel a Delta pilot whistleblower – Karlene Petitt – to mandatory psychiatric evaluation after she provided him with a 45-page Safety Report identifying violations of federal aviation standards. Although it became an 18-month ordeal, Ms. Petitt was vindicated by the evaluation process and currently flies Boeing 777 aircraft for Delta.
Administrative Law Judge Scott Morris, who is reviewing Petitt’s action for damages, observed that he was “really troubled” by the case and that Delta should think “long and hard about settling this.”
CNN broke the story of Dickson’s failure to disclose the related whistleblower litigation; however, to date, there has been no analysis of safety issues identified by Ms. Petitt or Dickson’s failure to respond even where she presented what Dickson agreed was evidence of pilot “helplessness” and “lack of operational control.” Significantly, an FAA investigation of Ms. Petitt’s whistleblower action “substantiated that a violation of an order, regulation or standard of the FAA related to air carrier safety occurred.”
A few examples of the disturbing flight operations issues identified by Petitt, and Dickson’s inaction, include the following:
* A pilot describing the deployment of unorthodox landing procedures to land the aircraft and concluding “we don’t know why and just lucked out. Any idea?” (Safety Report at 6). Captain Dickson agreed that this pilot communication conveyed a “lack of operational control” and “helplessness.” (Dickson Dep. at 117). Dickson further testified that he hoped that Delta “would have followed upon it with the normal process,” but conceded that he did not know whether Delta investigated this issue and that he did not ask Ms. Petitt who the pilot was. (Dickson Dep. at 118-19).
* A pilot reporting that, during takeoff, “Alpha floor suspected but not observed,” with the pilot concluding: “Not sure what happened….” (Safety Report at 6). Captain Dickson agreed that the report was a source of concern insofar as it indicated that the pilot might execute an “inappropriate recovery procedure.” (Dickson Dep. at 120-21). Dickson concurred that the incident possibly reflected a need for pilot refresher training. (Id. at 121-22). However, Dickson did not ask Petitt to identify the pilot in question. (Id. at 122).
* “During OE [a training operating experience] the wheels fell of when on my first leg [Check Airman] Albain told me to go vertical speed on the descent into DTW. I was high and that just made it worse. WTF?” (Petitt Decl. B at DA-00013). Dickson testified that vertical speed was “not typically a mode” that would be deployed under the described circumstances and agreed that the activation of vertical speed “could lead to an unstable approach” and “overshooting the runway or missing an altitude restriction.” (Dickson Dep. at 129-30). According to Dickson, Albain’s actions during OE training event “may have been a poor instructional technique or an ill-timed directive….” (Dickson Dep. at 132).
Dickson attributed no bad faith to Ms. Petitt’s report and conceded that it was “something we need to look into.” (Id. at 133-34). But, after her January 28, 2016, presentation to Dickson, neither he nor any other Delta flight operations manager spoke to her about these incidents.
A central thrust of Petitt’s Safety Report concerned Delta’s historic failure to promote a safety culture consistent with its Safety Management Systems (SMS) obligations under 14 C.F.R. Part 5. Dickson testified that, by January 2016, Delta had implemented its SMS program and, thus, was required by the FAA to comply with that program. (Dickson Dep. at 102).
However, in response to testimony elicited by Petitt’s counsel Lee Seham at her whistleblower trial, the FAA has opened an investigation as to whether the Delta SMS program supposedly implemented under Dickson’s watch may be just a Potemkin village.
A minimum requirement of SMS is that the air carrier develops a “reporting system in which employees can report hazards, issues, concerns, occurrences, incidents, as well as propose solutions and safety improvements.” 14 C.F.R. §5.71(a)(7). The FAA also mandates an associate training program that “[e]nsures that employees are aware of the SMS policies, processes, and tools that are relevant to their responsibilities.” 14 C.F.R. § 5.93(a). As the FAA explained in the preamble to its SMS Final Rule: “The participation of line employees is critical in developing improvements in functions that directly impact their job tasks.” 80 Fed. Reg. 1307, 1315 (January 8, 2015).
Petitt’s report provided specific quotes of Delta senior flight personnel promoting unsafe practices and shutting down dialogue with respect to safety issues, including:
* “Never call in fatigued at Delta. That is the other f-word.”
* “If there was a better way, Delta would already be doing it.”
* “You should stop all this writing and drink more beer.”
* “At Delta we have the power to do what we want.”
* “You’re not the first person who gets multiple retaliatory line checks.”
(Safety Report at 5, 13). Dickson agreed that these statements are not in compliance with Delta’s SMS program; however, he could not recall whether Petitt was ever asked for the identity of the persons who made these statements. (Dickson Dep. at 109-10).
On May 28, 2019, the FAA advised Petitt’s attorney, Lee Seham, that it was opening a new investigation based on testimony obtained at trial concerning Delta’s non-compliance with SMS.
Evidence of Delta’s Non-Compliance with its SMS Obligations
Delta’s SMS program designates the carrier’s Chief Executive Officer as the “accountable executive” required under 14 C.F.R. Part 5 with the Sr. Vice President Flight Operations acting as Divisional SMS Accountable Executive for Flight Operations. (Delta SMS Program at Section 5.7).
Nevertheless, CEO Ed Bastian testified on February 27, 2019, that he “no idea” what the core components of the SMS program were. (Bastian Dep. at 22). When asked what his personal involvement was in SMS compliance, he responded: “I don’t have one.” (Id. at 23). When asked whether he had been, at any time, the SMS accountable executive, he responded: “I’m not sure what accountable executive means.” (Id. at 27-28).
Similarly, Sr. Vice President Flight Operations James Graham identified not himself or CEO Bastian, but rather the Sr. Vice President of Corporate Safety, Security and Compliance as the SMS Accountable Executive. (Trial Tr. 1099-1100, 1124).
Captain Davis, who in 2016 held the position of Delta Airlines Regional Director and Chief Pilot for the Western Region, testified, on December 11, 2018, that he did not know the specifics of the Delta SMS program or whether it was an FAA requirement. (Attachment D – Davis Dep. at 118). He was not aware of who the SMS manager was or who served as the Seattle base safety coordinator. (Id. at 119). When asked whether he had ever received SMS training, he responded: “I don’t know.” (Id.).
Individual Delta line pilots testified concerning the general lack of knowledge regarding the SMS program at the carrier:
Q: Do you have any — have you ever discussed SMS with other pilots at Delta?
A: Well, a little bit. Usually when I say SMS they say: “What is that? Is that part of the airplane?”
Q: Well, to the extent you have knowledge of SMS, to what do you attribute having obtained that knowledge?
A: Because I know Karlene.
Q: You don’t recall any training from Delta on SMS?
A: Not that I can recall, certainly nothing extensive.
(Trial Tr. at 155). The lack of knowledge extended to pilot union representatives.
Q: Could you describe the SMS training that you’ve received from Delta?
A: I’m involved with ALPA so the Safety Management System I know about, relative to ALPA. I believe there’s probably a module about SMS when it first came out, but I couldn’t tell you any aspect of what that was.
(Trial Tr. at 269).
We hope that the Senate Commerce Committee doesn’t miss the point. This should not be just about the victimization of Petitt and the degree of Dickson’s participation in that process. The focus must also be on the concrete compliance issues she raised and Dickson’s apparent failure to address them. If Dickson could not ensure compliance at Delta, it raises a question as to whether he can do it for an entire industry.
SOURCE: Lee Seham, Esq