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U.S. Labor Secretary finds Chicago illegally retaliated against whistleblower who reported to FAA Midway airport’s runway-conditions falsification

Monday, January 22, 2024

Secretary orders Chicago to promote and pay damages and attorney fees to Michael Conway, 28-year aviation-department veteran who has experienced years of retaliation after sounding alarm on dangerous runway-condition-reporting practices.

U.S. Labor Secretary finds Chicago illegally retaliated against whistleblower who reported to FAA Midway airport’s runway-conditions falsification
Michael Conway, public servant

CHICAGO, IL – On January 19, 2024, the U.S. Secretary of Labor—following a multiyear investigation—issued formal findings that Chicago’s Department of Aviation retaliated against a whistleblower who reported to both the Federal Aviation Administration (FAA) and the Chicago Inspector General (IG) the falsification of runway conditions at Chicago-Midway International Airport (MDW). Michael Conway, a senior operations supervisor at Midway, made these reports after his objections to senior executives about the practices went unheeded.

The Secretary found Chicago officials’ retaliation violated the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, known as Air21 (14 U.S.C. § 42121)—and ordered Chicago to promote Conway and pay him damages and attorney fees, among other items of relief.

Conway blows the whistle to the FAA and Chicago Inspector General on unsafe practices at Midway Airport

In September 2018, Conway reported to both the FAA and Chicago's Office of Inspector General that Costas Simos, then a deputy aviation commissioner, had, in February 2018, ordered him to report as dry runway conditions that were wet. Conway had also witnessed other operations personnel being ordered to make similar misrepresentations.

On October 16, 2018, Conway filed a complaint with the U.S. Department of Labor’s Occupational Health and Safety Administration (OSHA) alleging that he was being retaliated against for:

  • Raising objections to senior leaders about an executive who wanted to call a wet airfield dry at the request of Southwest Airlines;
  • Reporting his concern to his managers and to managers at Southwest Airlines; and
  • Eventually reporting these, and related violations, to and participating in later investigations by the Chicago IG, the FAA, and to OSHA in the filing of the OSHA complaint.

Conway’s complaint to Chicago’s IG included an incident on February 17, 2018, when Midway’s deputy operations commissioner had ordered Conway to report wet runways as “dry” in the FAA’s NOTAM system[1] following a Southwest Airlines request. This order came, the complaint alleged, despite Conway’s telling the commissioner in reference to particular runways: “31 center is still wet. I mean, my brakes are coming on and 22 left is wet from the approach all the way to 31 left with deicer.”

Wet runways can lead to serious, even calamitous airline accidents, particularly on runways that are short like those at Midway.

In its July 2020, second quarterly report, the IG reported on its investigation—confirming Conway’s account. The IG recommended the deputy commissioner be fired and placed on the city’s “do not hire” list.

News outlets reported on this “eye-popping story even by Chicago standards.” City official falsified Midway flight conditions for airline, IG charges, Greg Hinz, Crain’s Chicago Business, July 16, 2020 (“Chicago Inspector General Joe Ferguson disclosed today that a senior Department of Aviation official falsified data on flight conditions at Midway Airport to help an airline—potentially jeopardizing the safety of those arriving on flights.”); CDA commissioner retired after falsifying Midway runway conditions, Eric Horng, ABC7 Chicago, Eyewitness News, July 16, 2020; City official falsified Midway flight conditions for airline, Former no. 2 official at midway airport accused of violating ‘crucial federal safety protocols,’ Fran Spielman, Chicago Sun Times, July 16, 2920.

Secretary of Labor's findings against Chicago

Upon completing a multiyear investigation under Air21, the U.S. Secretary of Labor found that Chicago aviation-department management knew of Conway’s reports when it began retaliating against him:

  • On October 16, 2018, Conway received a five-day suspension for a minor runway incursion based on a “new policy” at Midway that the aviation department could not document;
  • On December 11, within 12 days after formally acknowledging Conway’s whistleblower complaint, Conway was removed from his airfield position on grounds he had violated FAA procedures. But FAA officials confirmed Conway had followed proper procedure.
  • With limited access privileges, Conway was no longer eligible for the overtime hours he’d been receiving;
  • For the calendar 2019-year, the aviation department failed to give Conway his mandatory pay raise;
  • On July 23, 2019, Conway was suspended for 15 days for supposed misconduct he had either not engaged in or wasn’t responsible for;
  • On August 24, 2020, Conway was not selected for a promotion.

Secretary of Labor orders Chicago to promote Conway, pay his damages and attorney fees, remove wrongful discipline, and post the findings and order

The Secretary of Labor ordered Chicago to afford relief to Conway. The Secretary ordered the Chicago to

  • Promote Conway to the position of Assistant Chief Airport Operations Supervisor, a promotion he’d been denied;
  • Award Conway $103,093.02 in lost wages and overtime, which he suffered after Midway’s managing deputy commissioner removed him from his job of conducting airfield inspections, and for, among other things, suspending him without pay;
  • Pay Conway “$50,000 in emotional distress stemming from the campaign of harassment and mistreatment against [him] which caused [him] significant medical issues during 2019 and 2020,” plus medical expenses not covered by his insurance.
  • Expunge Conway’s employment records of all discipline he received before April 18, 2023, and ensure he will not suffer loss of future opportunities or receive negative employment references from exercising his rights under Air21.
  • Refrain from retaliating or discriminating against Conway in any way for instituting proceedings under or related to Air21;
  • Email a notice containing the Secretary’s findings to all Department of Aviation employees; and
  • Post the findings and order for 180 days in the workplace.

Within 30 days of the order, Chicago may appeal the Secretary’s findings and order to an administrative law judge.

Public servants who fight to ensure public safety

Conway’s lead counsel, Subodh Chandra, said, “The traveling public deserves public servants like Michael Conway, who fight to ensure our safety. Unfortunately, Mike paid a high price in his career for speaking up against wrongdoing—and this federal ruling is, at long last, a step toward making things right. As three government agencies—Chicago’s Inspector General, the FAA, and now the U.S. Department of Labor—have found, Mike did what was right.”

“One would hope that some responsible, senior Chicago official will stop the ongoing retaliation, hold current and former officials responsible, and make things right instead of senselessly fighting in perpetuity,” Chandra added.

Chicago has been on notice by the Department of Labor since May 17, 2023 that the Secretary would rule against it. That’s when OSHA issued preliminary findings against the city. Yet Chicago officials have still not stopped the ongoing retaliation and career derailment Conway says he is experiencing.

Separate federal litigation for First Amendment retaliation and violating the Illinois Whistleblower Act

A separate suit by Conway against the City of Chicago and two former deputy commissioners for aviation, for First Amendment retaliation and violation of the Illinois Whistleblower Act, remains pending in the U.S. District Court for the Northern District of Illinois. That case, entitled Michael Conway v. City of Chicago, Costas Simos, and Erin O’Donnell, Case No. 20-cv-04966, is pending before U.S. District Judge Jeremy C. Daniel. The complaint is available here.

The U.S. Department of Labor’s ruling for Conway may be found here.

Subodh Chandra, Donald Screen, and Michael Halberstam of The Chandra Law Firm LLC in Cleveland, and Jamie S. Franklin of The Franklin Law Firm in Chicago, represent Conway.

The Chandra Law Firm previously represented Abdul-Malik Ali, a whistleblower at Cleveland’s Hopkins International Airport, under similar circumstances. The firm pursued both a successful Air21 complaint before OSHA and federal First Amendment–retaliation litigation. Those matters resulted in OSHA awards and a settlement of First Amendment–retaliation claims, plus substantial penalties by the FAA against the city of Cleveland.

[1] The FAA’s NOTAM or “Notices to Airmen” system provides pilots, dispatchers, and air-traffic controllers with most up-to-date runway conditions.

Chandra Law is experienced obtaining justice for victims of employment retaliation. We also secure constitutional rights and fights against First Amendment retaliation, including for public employees.

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Employment RetaliationFirst Amendment

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