The Seattle-based airline fired Milam weeks after he failed the drug test in 2011. The first officer's firing, though, was thrown out by an out-of-court arbitrator and Horizon has now sued to keep Milam off the job.
In the lawsuit filed last week, attorneys for Horizon contend the arbitrator misapplied the labor contract under which Milam works. The airline has asked that a U.S. District Court judge throw out the arbitrator's finding that Horizon managers failed to follow the airline's own rules in firing Milam.
Writing the court, Horizon attorney Mark Hutcheson claimed Milam flew at least twice "with marijuana in his system." Horizon stopped short of claiming Milam was flying while high.
The airline was attempting to protect passengers when it fired Milam in November 2011, Hutcheson told the court.
"Horizon is not willing to place an impaired pilot back in the cockpit," said Hutcheson, a Davis Wright Tremaine attorney representing Horizon alongside Lawton Humphrey. "Doing so would violate federal law and contravene a well-settled public policy prohibiting a pilot from flying while using drugs."
The lawyers went on to note Milam was the first Horizon pilot to fail a drug test since the airline began testing in 1989.
Representatives for the Airline Professionals Association - the Teamsters union branch representing Milam in the matter - declined to discuss the allegations in detail and have not yet responded in court.
In a statement, APA Teamsters Local 1224 President Daniel C. Wells supported the arbitrator's decision.
"We are happy with the process that led to the arbitrator's decision in this case and are extremely disappointed with Horizon Air's decision to file a lawsuit following the outcome," Wells said Friday.
Hired in 2004, Milam was a first officer at the time of his firing. As such, he was required to retain a Federal Aviation Administration certificate verifying he was healthy to fly, and that he had not used drugs illegally in the prior two years.
Milam took and failed a random drug test on Nov. 4, 2011 after flying a roundtrip flight from Sea-Tac Airport to Redmond, Ore., Horizon's attorneys told the court. Milam flew to Spokane immediately after the test, but then called in sick for two weeks before his firing.
Milam is alleged to have admitted to smoking marijuana one to three times a week during the six months prior to his failed drug test. He flew on 84 days during that time.
The drug test that Milam failed was conducted to meet federal requirements designed to ensure pilots are not abusing alcohol or using drugs illegally.
According to the arbitrator's report, Milam admitted the drug test was properly administered and that he had been smoking marijuana to "cope" with chronic back pain and other issues.
Milam said he never used marijuana while on duty and refrained from smoking the night before an early shift. Following his failed drug test, he underwent a drug abuse evaluation and successfully completed the recommended treatment regime.
While Horizon could have offered Milam a "last chance" agreement that would have seen him undergo drug treatment, the company opted not to do so largely because he had taken an unusually large amount of sick leave, Hutcheson told the court.
According to the lawsuit, Milam had not managed to complete a full month of scheduled flying in the three years before his firing, and had used more sick time in a year than any other Horizon pilot. Milam would later tell the arbitrator family and personal health issues kept him from work.
Horizon fired Milam on Nov. 21, 2011, following a meeting with Horizon leadership and a union representative. Acting on the pilot's behalf, the union filed a grievance two days later.
In a decision issued in February, arbitrator Cliff Freed found Horizon erred in the way it went about firing Milam.
Specifically, Freed faulted the Horizon manager who fired Milam for failing to review the pilot's personnel file. As it turned out, that manager had written several letters of recommendation for Milam and praised him for his "professional and mature attitude."
Finding in Milam's favor, Freed noted the pilot violated "a trust between Horizon and its customers" by violating the clear mandate that pilots remain drug free.
"There is nothing hypothetical or attenuated about the disastrous impact that an impaired pilot can have on the lives of his or her passengers, and therefore there is little room for compromise in any discussion regarding drug use by a pilot," Freed said in the report.
The arbitrator went on to note Horizon did not show Milam was high while flying. But, Freed continued, a positive drug test alone would be enough to justify Milam's firing under company rules.
Horizon's error came, Freed said, when managers failed to fully review Milam's employee record prior to firing him.
According to the arbitrator's report, the airline's employment rules allow employees who failed a drug test to keep working if a substance abuse counselor opines that they may return to work and a "review of company records" shows the worker's retention is in Horizon's best interest.
Freed noted Milam's drug counselor found him fit for work. Horizon, the arbitrator said, did not review its own records before firing Milam.
Describing the decision as a "close call," Freed said Horizon failed to abide by its own policies when it failed to review Milam's full record prior to the 15-minute meeting that ended in his firing.
"This decision does not constitute a 'get-out-of-jail free' card to any pilot failing a drug test," Freed said in the decision. "To the contrary, it holds only that in not considering Milam's entire record on this one occasion, Horizon failed to abide by the terms of its own drug policy."
Freed ordered that Milam be allowed to return to work after obtaining the approval of a substance abuse counselor. Milam was not awarded back pay for months of work he missed following his firing.
Horizon's attorneys have now asked a U.S. District Court judge in Seattle to throw out the arbitrator's decision. The union has yet to respond in court.