Airline company wins appeal, despite "window dressing"

By John O'Brien | Oct 26, 2007


CHARLESTON, W. Va. - Colgan Air's tumultuous time before the West Virginia Supreme Court concluded Thursday with an ideal outcome for the company.

The airline won its appeal, as the justices decided the state's Human Rights Commission erred when it found Colgan liable for the 2001 termination of pilot Rao Zahid Khan. Khan argued he was fired because of his Pakistani and Muslim heritage in the wake of 9/11.

"The HRC's decision that the failure to retrain Mr. Khan was discrimination also is not supported by the facts. The facts illustrate that, due to financial constraints, no pilots were being offered retraining opportunities for a three-month period," the opinion says.

"Moreover, the degree of inability showed by Mr. Khan to conduct an airplane in a safe manner was egregious, and retraining would present safety issues."

Colgan's war with Justice Larry Starcher created a separate storyline from the actual case. At Sept. hearing held at Marshall University, Starcher called attention to Colgan co-counsel Shaleeza Altaf's Pakistani heritage.

Starcher asked Colgan attorney Mark Dombroff if Altaf was of Pakistani descent. Dombroff replied that she is, and Starcher dropped his writing instrument on the table and leaned back in his chair.

"That's what I thought," Starcher replied, as the crowd shrieked and gasped

When Colgan asked Starcher to recuse himself from the case for showing the appearance of impropriety, Starcher claimed he was simply calling attention to Colgan's strategy of hiring a Pakistani attorney in a Pakistani discrimination case.

He called Altaf "window dressing" and an "argument prop." Colgan again asked him to recuse himself, and he again refused, saying he could fairly decide the case because he had no financial or personal ties to it.

Altaf is an attorney from the Washington D.C. branch of Dombroff, Gilmore, Jacques and French. She was admitted to the Virginia Bar in 2003 and one of her listed practice areas is aviation defense, along with products liability, general negligence and insurance law.

Colgan says she has represented the company in many matters, and logged almost 500 hours in the Khan case.

Starcher concurred in part and dissented in part with Thursday's decision, and reserved the right to file an opinion later. Justice Joseph Albright did the same.

Chief Justice Robin Davis and justices Brent Benjamin and Elliott Maynard all wholly agreed with the opinion, and Maynard may file a separate opinion later.

The facts of the case state that Khan was subjected to discriminatory treatment by some of his coworkers, as he was called a "sand nigger," "rag head" and "camel jockey."

Khan and a coworker complained to the lead pilot for Colgan at the Huntington crew base. The complaints did not make it to corporate headquarters in Manassas, Va., though Khan's coworkers were told by their superior to "knock it off". Khan drove to Manassas in June 2001 to complain.

Capt. Riley was forced to be retrained on the company's sexual harassment and discrimination policy and was threatened with severe disciplinary action. In July 2001, another coworker posted a hand-drawn cartoon that depicted an airline and read "COLGAN AIR NOW HIRING PUNJAB (a province in Pakistan) PILOTS!!! NOTE: PUNJAB AIRLINES NOT RESPONSIBLE FOR LOSS OF LIFE HUMAN ANIMAL OR OTHERWISE."

Riley's roommate, Capt. Heuston, was found to have drawn the cartoon. It was then learned that Riley made a death threat against Khan and his wife, and Riley was fired a few days later.

By this time, Khan was the only one from his training class not to reach the rank of Captain, remaining a First Officer. On Oct. 30, 2001, he passed the oral portion of a proficiency test but failed the flying part. He failed to complete a takeoff stall, ILS approach and VOR approach. After two failed maneuvers, the check airman had to take over the aircraft.

He received retraining on the first two maneuvers, but Federal Aviation Agency guidelines do not allow retraining for a third, and Khan failed the test.

"The facts elicited during the (Administrative Law Judge) hearing portrayed a pilot who was unsafe," the Court wrote. "While it was acknowledged that Mr. Khan's skills did progress, he needed a lot of instruction while flying. The Lead Pilot, Capt. Mayers, stated he doubted Mr. Khan was capable of commanding an airplane.

"As support for this feeling, it was recounted that, on one occasion, Mr.. Khan lined up on the wrong runway, and another pilot had to take control of the plane."

After the attacks of 9/11, Colgan was put into a financial situation that prevented retraining any pilots for three months. The airline was also in the midst of a bankruptcy consultation and told Khan he could either resign or be laid off. He resigned, then filed an unlawful termination claim in April 2002.

The HRC determined Colgan was liable for $46,575 in damages, as well as $5,000 for the treatment Khan received from his coworkers.

Using an analysis of certain case laws, the Court determined Colgan had properly reacted to Khan's complaints.

"(I)t is clear that Colgan had a policy in place for reporting harassment and discrimination, and further, that Colgan took appropriate and decisive action as soon as the policy was followed and management was informed of the discriminatory conduct," the Court wrote.

"The company policy, which Mr. Khan certified that he received and understood, directed that employees 'must report such offensive conduct or situations to the Immediate Supervisor, or the Director of Personnel[.] . . . If you are unsatisfied with the attention your report receives, contact, Mary Finnigan, Vice President, Marketing and Personnel[.]'

"While the Lead Pilot located in Huntington... was aware of the 'personality conflicts' between Mr. Khan and some of his coworkers, the Lead Pilot is not the person to whom the reports must be made. "

The Court also found that Colgan's failure to promote Khan to Captain and its decision to terminate him were not based on his heritage.

"Colgan provided a nonpretextual reason for its decisions and was within its discretion to determine that retraining was not a possibility, especially given the additional fact that Mr. Khan had been terminated from his previous job for failure to pass a proficiency test," the Court wrote.

"Thus, Colgan did not discriminate against Mr. Khan when he was not upgraded to Captain status, or when he was subsequently forced to resign after failing a proficiency test."

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