Tate v. Spirit Airlines, Inc.

Filing 32

ORDER granting 17 Defendant's Motion for Summary Judgment. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 7/12/2013. (kms)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-60094-CIV-ROSENBAUM/HUNT

WILLIAM TATE,
Petitioner,
v.
SPIRIT AIRLINES, INC.,
A Delaware corporation,
Respondent.
/

ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Spirit Airlines, Inc.’s Motion for Summary
Judgment [D.E. 17]. Petitioner William Tate, an airliner captain, filed this action seeking review
of a determination by the Spirit Airlines Pilots’ System Board of Adjustment (“Board”) affirming
Respondent Spirit Airlines, Inc.’s decision to terminate Tate’s employment with Spirit. See D.E. 1.
The Board concluded that Spirit had “just cause to effect the termination of Captain William Tate”
because of Tate’s lengthy and repeated record of anger-management and judgment problems and the
“serious concern” that they represented “to an employer charged with safely operating aircraft.” See
D.E. 18-2 at 81-82.1 Tate appeals the Board’s ruling, asserting that it must be vacated because the
Board allegedly acted in excess of its jurisdiction and denied Tate due process. See D.E 1 at 10-12.

1

Some docket entries contain more than one page-numbering system. Where that occurs,
this Order refers to the numbering system imprinted across the top of every page by the Court’s
CM/ECF system, except where transcripts are concerned. For transcripts, this Order refers to the
original page-numbering system; the number before the colon reflects the page number and the
number following the colon refers to the line number.

Spirit has moved for summary judgment. Because the Court concludes that no material facts
are in controversy and the Board neither acted in excess of its jurisdiction nor denied Tate due
process, the Court now grants Spirit’s Motion for Summary Judgment [D.E. 17].
I. Material Facts
A. Background
1. Petitioner William Tate is a beneficiary of the Collective Bargaining Agreement
(“Agreement”) entered into between Spirit and the Air Line Pilots Association (“ALPA”). See D.E.
1-1; D.E. 30 at ¶ 19.
2. Among others, the Agreement includes the following provisions:
19.A.1.

A pilot will not be disciplined without just cause. In
those instances where the Company contemplates
discipline of a pilot — amount to discharge . . . —
such disciplinary action will not be imposed until the
Company first conducts an impartial, reasonable, and
expeditious investigation of the alleged cause.

19.A.2.

No discipline will be imposed until a fact-finding
meeting is held with the chief pilot, the pilot, and his
[ALPA] representative(s) (if desired). Such meeting
will be held within 10 working days of the date of the
Company’s issuance of a written Notice of
Investigation advising the pilot of the investigation
and reasons for it . . . .

19.A.3.

A Notice of Investigation must be issued within 15
working days of the date upon which an individual
with managerial authority in the Flight Operations
Department has, or would reasonably be expected to
have, knowledge of the circumstances giving rise to
such investigation.

*****
19.D.2.

All time limits within this Section 19 shall be
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complied with by the Company and the pilot. If the
Company does not comply with the time limits, the
grievance shall be considered denied and appealable.
In the event the pilot fails to comply with the time
limits, the Company’s action shall be sustained.
*****
21.A.

In compliance with Section 204, Title II of the Railway
Labor Act, as amended, a System Board of
Adjustment is established for the purpose of adjusting
and deciding disputes that may arise under the terms
of this agreement, any amendments or additions
thereto, and that are properly submitted to it. . . .

*****
21.C.

The Board shall have jurisdiction over disputes
between any pilot covered by this Agreement and the
Company submitted to it by [ALPA] arising out of
grievances concerning the interpretation or application
of any of the terms or provisions in the Agreement
and disciplinary grievances submitted by nonprobationary pilots. . . .

D.E. 1-1.
B. The Events that Predated the Issuance of the Notice of Investigation
3. In 2004, Spirit issued the following letter to Tate:
*****
In May, 2003, following a Notice of Investigation that was issued as
a result of engaging in unprofessional and disruptive conduct that
undermined customer confidence in Spirit Airlines, you were
suspended without pay for a period of fourteen (14) days. At that
time, you were warned that any additional occurrences of this type of
conduct may lead to termination . . . .
Thereafter, on August 4, 2003, you were counseled regarding your
continued unprofessional and unacceptable conduct relating to your
inability to control your temper towards a co-worker. Since this coworker was a Flight Attendant, and a subordinate of yours, it had the
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potential to create a hostile work environment for that individual. As
previously advised, that was the second occurrence for which your
anger adversely affected your relationship with your co-workers. At
that time, it was strongly recommended that you seek professional
guidance to assist in controlling your behavior. Moreover, you were
provided an additional warning that should you continue to conduct
yourself in this same manner without any evidence of participation in
an anger management program, you would be disciplined
accordingly. . . . You failed to seek assistance to address your
conduct.
Finally, in January 2004, you were counseled for your failure to
respond to a directive by the Chief Pilot’s office. As a result, you
were given a disciplinary letter that would remain in your file for
twelve (12) months. Again, you were warned that any acts of
insubordination, refusal to follow instructions, and/or violations of
Spirit company policies and procedures during this period may result
in further discipline up to any [sic] including termination . . . .
Accordingly, based upon your continuous course of unacceptable
conduct in violation of Company policy, and the previous warnings
and discipline relating to that conduct, in conjunction with your
failure to seek appropriate professional guidance in controlling that
conduct, your employment with Spirit Airlines has been terminated
effective February 18, 2004. . . .
D.E. 18-2 at 66-67 & 67 n.8.
4. Despite this letter terminating Tate’s employment with Spirit, Tate was not terminated.
Instead, following a grievance to the Board, Tate was reinstated with a 21-day suspension because
the Board concluded that Spirit had failed to establish any cursing, abusive, or disruptive conduct
by Tate as described in the hearsay report, but it noted that Tate had previously received a 14-day
suspension that he had accepted without protest for using loud, abusive, and vulgar language while
on a cell phone and seated in the cabin. Id. at 66-67. In further justifying the 21-day suspension, the
Board pointed to a report that a flight attendant had to ask Tate more than once to turn off his cell
phone and that Tate continued to text, despite federal regulations. Id. at 67.
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5. In 2009, Tate was the subject of an investigation for abusing Aetna, one of Spirit’s
vendors. See id. at 68. More specifically, Tate sent a profane and abusive message to Aetna while
attempting to resolve a benefits matter. Id.; see also D.E. 1-8 at 507:12-:4.
6. In response to the 2009 incident, Spirit advised Tate of the following:
You must attend professional anger management counseling sessions
on a regular and ongoing basis through August, 2010. Scheduling of
and payment for these sessions will be your sole responsibility. You
must provide the Company with the name of the facility where you
are obtaining treatment, a schedule of your treatment dates and
monthly reports from the treatment facility confirming your
attendance at these sessions.
* * * **
As a Spirit employee, you must comply with established and expected
standards of behavior as set forth in the employee handbook. . . .
Please be advised that your failure to comply with any of these
requests will subject you to further discipline, up to and including
termination of your employment from Spirit Airlines, Inc.
D.E. 18-2 at 4-5; D.E. 1-8 at 508:2-:4.
7. On August 20, 2010, Tate was serving as the captain on a Spirit flight from Port-AuPrince, Haiti, to Fort Lauderdale. See D.E. 1-8 at 509:21-:25. Tom Gilmore, who is an instructor
pilot for Spirit, was serving as the flight’s first officer. See D.E. 1-6 at 87:8-:10.
8. Also on August 20, 2010, following his return to Fort Lauderdale, Gilmore called Joseph
Houghton, who was then the Director of Training and Standards for Spirit, and advised him that he
had concerns about Tate’s behavior during the August 20, 2010, flight. D.E. 1-6 at 98:18-99:19; id.
at 162:10-:23. According to Gilmore, Gilmore told Houghton that Tate had disconnected the
autopilot and the autothrust as the flight climbed from Port-au-Prince and had instructed Gilmore

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to put the speed at 340 knots on the flight control unit, actions that Gilmore felt concerned about.
D.E. 1-6 at 88:15-99:19. Gilmore stated that he further informed Houghton that Tate had executed
a “very steep and aggressive climb from [340 knots] to a lower speed, . . . result[ing] in a very, very
high rate of climb.” Id. In addition, Gilmore reported to Houghton that Tate had only a very narrow,
limited view on his navigation display, and he was trying to hand-fly the plane. Id. Gilmore also
explained that when they landed, he attempted to discuss with Tate the importance of complying
with Spirit’s flight standards, but Tate became angry and yelled at Gilmore and then left the cockpit.
Id. As Gilmore walked to his car, he further indicated, he received a telephone call from Tate that
had been routed through crew scheduling. Id. During this call, Gilmore stated, Tate brought up the
subject again and became angry, “name-calling pilots in the group and going on a tangent.” Id.
9. Houghton reported Gilmore’s telephone call to Chris Grazel, who was the Vice President
of Flight Operations at the time. D.E. 1-6 at 162:10-163:8.
10. Grazel subsequently had a discussion with Tate. See D.E. 1-8 at 597:18-599:17.
Although the parties agree that the Port-au-Prince flight was discussed during this conversation, they
do not agree on specifically what was said. See id.; D.E. 1-8 at 530:21-532:18.
11. On approximately August 24, 2010, at his own request, Tate began taking leave under
the Family Medical Leave Act. See D.E. 1-8 at 509:3-:5, 600:5-604:22, 533:11-:12.
12. Originally, the FMLA leave was scheduled to last from August 24, 2010, through
September 30, 2010. D.E. 1-8 at 614:5-:21.
13.

Tate’s FMLA leave was extended until October 17, 2010, upon approval and

authorization by Tate’s family counselor. D.E. 1-8 at 616:20-:25.
14. Houghton became the Vice President of Flight Operations on October 1, 2010. D.E. 1-6
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at 161:13-:16.
15. On October 4, 2010, Tate called Aetna, who provided insurance benefits for Spirit
employees, to find out why he had not yet received benefits for being out on FMLA leave. See D.E.
1-8 at 534:17-540-:2. During the telephone call, as Tate himself admitted, Tate became angry and
used profanity. See id. Aetna complained to Spirit. See D.E. 1-6 at 131:4-132:25.
16. On October 20, 2010, Lucy Singleton-Mana, then Spirit’s Manager of Labor Relations
and Flight Operations Coordination, D.E. 1-6 at 129:4-:19, sent a memorandum to Houghton
regarding a conversation that she had had with Tate on October 4, 2010, in regard to the Aetna
incident. In this memorandum, Singleton-Mana wrote,
[Tate] went from being very angry to crying and then angry. He
stated his doctor wanted him to go on medication but he did not want
to take the medication. He also stated his counselor would not see
him any more due to Aetna hasn’t paid the bill and they owe her
around $2,000. I then gave him the info for our employee assistance
program and told him they maybe able to help him. He said if he
would have known that he was not going to get paid he would have
never gone out on FMLA.
D.E. 18-2 at 72.
17. Also on October 20, 2010, in response to a request that Houghton made, Gilmore
provided Houghton with a written statement regarding Tate’s conduct during and after the August
24, 2010, flight from Port-au-Prince to Fort Lauderdale. D.E. 1-6 at 116:16-117:16.
18. On October 22, 2010, in response to a request that Houghton made, Spirit Captain and
Check Airman Robert Webster submitted a written statement to Houghton regarding Gilmore’s
complaints to Webster about the August 20, 2010, incident with Tate and about Webster’s own prior
problems with Tate. See D.E. 1-6 at 79:7-83:16. On August 20, 2010, Webster had mentioned to

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Houghton Gilmore’s concerns regarding the August 20, 2010, flight from Port-au-Prince. See id.
C. The Notice of Investigation, the Subsequent Hearing, and the Termination of Tate
19. On October 27, 2010, Spirit sent Tate a letter that stated,
This letter will serve as a Notice of Investigation pursuant to Section
19 of the Collective Bargaining Agreement . . . to address allegations
against you concerning the following matters: your inappropriate
behavior in violation of Company policies, including but not limited
to your conduct while speaking with Aetna and other Spirit
employees on or about October 4, 2010, your conduct towards the
First Officer on NK 952 PAP-FLL on August 20, 2010 (including
conduct after that flight), your conduct towards T. Rowe Price on
August 4, 2010, certain allegedly threatening comments to other
Spirit pilots, allegations that you were lying on the floor of the
cockpit on a flight from SJU on or about February 2010, and your
alleged failure to follow Company policies/procedures/standards and
to comply with Company instructions including but not limited to the
following matters: you [sic] alleged failure to operate NK 952 PAPFLL on August 20, 2010 according to Company
policies/procedures/standards and your failure to comply with the
requirements of your August 19, 2009 resolution letter. . . .
D.E. 18-2 at 5-6.
20. Joseph T. Houghton, then the Vice President for Flight Operations for Spirit, explained
his reasons for issuing the Notice of Investigation:
I became concerned about the overall picture. So, as a picture, you
begin to build on all these items . . . . But I don’t ask for input when
input comes in. When I don’t ask for input and input comes in, it
registers something. When I see a — some of the providers for health
or a 401K or whatever and letters come in that I don’t ask for, it
becomes an area that I certainly need to look at. When I get a pilot
that comes forward with a letter and documents, exactly what
happened, then it does tend to give some credibility to the others that
have called. So with that, it builds a picture, and hence the purpose
of the NOI.
*****

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Another question that came to mind was if he had, indeed, gone out
on FMLA and he had, indeed, sought counseling and was on any type
of medication, was that recorded properly and does he — can he
legally exercise the privileges of a medical certificate.
*****
[And there] was a previous NOI in which there had been, my
understanding is, an ultimatum given, sort of in the form of sort of a
last chance, if you will, that either Captain Tate conform to what was
prescribed or he would be subject to termination and that he had
agreed, indeed, to what had been prescribed in that August 2009 NOI.
D.E. 1-6 at 177:20-178:12; id. at 179:19-180:12.
21. On November 3, 3010, Houghton conducted a fact-finding meeting on the Notice of
Investigation. See D.E. 18-2 at 7-9.
22. The following day, November 4, 2010, Houghton sent Tate a letter stating that during
the November 3, 2010, meeting facts were confirmed regarding the following:
-

After an investigation into inappropriate conduct by you, you
received a letter dated August 19, 2009 which required you to
comply with certain standards of behavior required pursuant
to Company policy as a condition of your continued
employment with Spirit. Despite this, you became angry and
used profanity several times on October 4, 2010 when you
were speaking to Aetna Supervisor Steve Parris. . . . During
the investigative meeting, you admitted to using profanity on
the call with Mr. Parris “at least 3 times.” Your behavior in
this regard was unacceptable and a clear violation of
Company policy. . . .

-

Failure to comply with Spirit Airlines standard operating
procedures . . . while acting as Pilot in Command during
revenue flying. On August 20, 2010 you were the Captain of
a Spirit aircraft with First Officer Tom Gilmore on board.
You commanded him to assist you with performing numerous
non-standard flying procedures such as selecting 340 knots
(slightly below the maximum allowable speed) while hand
flying the aircraft to 27,000. You also selected arc on your
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ND as low as l0nm while flying in a mountainous terrain in a
non-radar environment. When I asked separate questions
about the specifics of each of these you confirmed they did
indeed take place and went on to explain exactly why you
performed the actions you did. When asked whether you
thought an aircraft should always be flown standard you
replied, “Flying standard is for flying in bad weather or on a
CAT III approach.” You further elaborated that pilots
shouldn’t practice in bad weather. When asked why you
chose to fly the aircraft faster than standard you replied that
it was to make up time due to running late. This is not
standard procedure. When further asked why you fly nonstandard you said you have to practice. Practicing or hand
flying per the standards is very different from flying the
aircraft non-standard. You further elaborated that you could
name at least 6 pilots who are going to crash airplanes. You
were asked if you spoke to First Officer Gilmore in an angry
manner when he challenged your non-standard flying. You
responded that you did not raise your voice but told him to put
away a magazine (meaning he needed to pay attention)
because you were “flying 340 knots in a non-radar
environment.” You admitted that after the flight you called
crew scheduling and asked them to transfer you to First
Officer Gilmore’s personal cell phone. When asked why you
had crew scheduling transfer your call to First Officer
Gilmore’s personal cell phone you stated, “because he’s my
friend.” First Officer Gilmore reported that you continued to
express your opinions and philosophy on Flight Operations.
He reported that your anger increased during the call to the
point he hung up.
-

Failure to comply with Spirit Airlines FOM policy and
Federal Aviation Regulations regarding . . . [flying with a
medical condition or taking medication or receiving other
treatment for a medical condition that results in not being able
to meet the requirements for the medical certificate necessary
for pilot operation].

Id. at 7-8; D.E. 1-3.
23. In addition, the November 4, 2010, letter explained,
The Company asked if you had sought medical treatment as required
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in the August 2009 letter. You produced a document indicating that
you had been seeing a Licensed Certified Social Worker (“LCSW”).
In a phone call to the Company on or about October 4, 2010 you
informed the Company that you needed to go on anti-anxiety
medicine. In a previous conversation with then Vice President of
Flight Operations, Chris Grazel, you stated that you needed to go on
medication and take some time off due to your situation at the house.
You ended up voluntarily going on FMLA. When asked why you
went on FMLA during our fact finding NOI on November 3,2010 you
said that you were diagnosed with anxiety and had panic attacks. You
further stated that the LCSW wanted you to see a medical doctor and
go on medication for your condition and you said that you were
taking medication and seeing a medical doctor. You then came off
FMLA on October 18, 2010. When asked why you came off of
FMLA you said that you needed the money and didn’t realize that you
would not be getting paid for a period of time.
During our NOI meeting, you were asked if you had reported any of
this information to your AME (Aviation Medical Examiner). You
stated, “No.” You were then asked if you were aware that these items
needed to be reported to your AME and you responded, “Yes.” You
were then asked if you had been cleared to fly while taking
medication and you responded that you had not seen your AME
(indicating a no response). You explained to the Company that when
you (meaning anyone) are under extreme stress (which you said you
had encountered) the brain chemistry changes and you need medicine
to stabilize it. You said your situation is getting better but that you
are not completely OK yet. By taking yourself off of FMLA and
reporting for duty while taking medication that had not been approved
by your AME you were violating federal regulations. The Company
pulled you from flying to investigate this situation. Normally a pilot
is grounded by the FAA until all symptoms of a psychiatric condition
have been treated. Further, the FAA requires a consultation status
report, a written statement prepared by the pilot describing his or her
history of antidepressant use and mental health status as well as
additional items. Additionally, if a pilot discloses that he or she is
consulting a therapist (e.g. for anxiety) but there is no clinical
diagnosis for depression, a pilot will not be allowed to fly while
undergoing treatment. You indicated that you have been undergoing
treatment and taking medication without disclosing any of these items
to the FAA and then reported for duty as a pilot for Spirit Airlines.
You called your LCSW (Stacy) during our NOI to offer her opinion
to us. Stacy explained that you have been having panic attacks and
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that you were under an exceptional amount of stress and that you did
not take her recommendation for you to take a minimum of 6 months
off.
Consistent with its duties as a common carrier by air, a core value of
Spirit is that we put safety first in all the services we provide to our
passengers and to one another. Page 73 of Spirit’s Employee
Handbook provides that “Spirit Airlines values safety above all else.
We must protect our passengers, our employees, and the general
public. Spirit Airlines’ safety efforts must meet and exceed the safety
standards of the airline industry.” Spirit is committed to and required
to promote air safety and exercise the highest possible degree of care.
Spirit’s Employee Handbook also clearly states that “the Company
expects employees to follow rules of conduct that will protect the
interests and safety of the Company and its employees and further
states that violation of safety regulations or standards are serious and
terminable offenses.” See Spirit’s Employee Handbook, pages 44 and
45. As Pilot in Command, you are responsible for the safety of the
aircraft and both current and future crews and passengers. You are
responsible to ensure that each flight is, in all respects, accomplished
in a safe and legal manner. Additionally, Spirit has clear standards
regarding conduct expected of employees and although you were
warned that your behavior had to change in order for you to remain
employed at Spirit, you have continued to exhibit behavior
inconsistent with Spirit’s requirements. Further, you have violated
the FAA standards previously discussed.
Based on all of the facts and circumstances previously discussed, it
is Spirit’s determination that your employment is hereby terminated
effective immediately. . . .
D.E. 18-2 at 8-9; D.E. 1-3.
24. At no point during the Notice of Investigation process or before Spirit terminated Tate’s
employment did Tate suggest that Spirit had failed to comply with the time limits for issuing a
Notice of Investigation, as set forth in the Agreement.
D. The Grievance Procedure
25. On November 22, 2010, ALPA, on behalf of Tate, appealed Spirit’s determination to the

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Board. See D.E. 1 at ¶ 10.
26. More than a year later, on December 15, 2011, ALPA filed a document seeking to
dismiss the Notice of Investigation — and subsequently re-styled as a motion for summary judgment
— asserting that all of the discipline was untimely under the Agreement and that Spirit had failed
to provide notice to Tate of the allegations against him that “played a material role in the decision
to terminate him.” See D.E. 1-4.
27. The Board denied ALPA’s motion for summary judgment. See D.E. 1-5. In reaching
this conclusion, the Board explained,
If in fact AL[PA] is convinced that alleged procedural infirmities
trumps any consideration of the merits it has the option of resting its
case once management presents facts sufficient to constitute a prima
facie case for dismissal. At this early juncture, however, sufficient
facts are either contested or unavailable to consider issuing a ruling
for Captain Tate on a procedural infirmity basis only.
Additionally, I agree with the Carrier that the parties' collective
bargaining agreement does not vest the undersigned Chairman with
the authority to resolve the merits of a case prior to a hearing on the
merits. As noted by the Employer, the parties have not incorporated
any concepts of pre-trial motion law into their collective bargaining
agreement. . . .
Id. at 11.
28. The Board held a three-day hearing on Tate’s grievance from January 10 through 12,
2012, in Fort Lauderdale, Florida. See D.E. 1-6, D.E. 1-7, D.E. 1-8.
29. During the hearing, Tate testified on his own behalf. He was given the opportunity to
respond to a number of questions, including several questions concerning multiple restraining orders
that had been sought or entered, or both, against him and two criminal cases that were then pending
against him. See D.E. 1-8 at 551:18-593:22. More specifically, Tate had the chance to answer
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questions concerning separate restraining orders sought or obtained against him by Ishmael Nieves,
Resa Nakol Jones and Franklin Jones, Wendy Salter, Chad Simmons, Valery and Richard Coulson,
Erin Hurwitz, and Laura Chenault. Id.
30. Among other witnesses, ALPA called James Lewis to testify. See D.E. 1-7 at 443:17.
Lewis, an attorney, had represented Tate in the past and was in the process of representing him in
state-court criminal proceedings at the time of the grievance hearing. See id. at 444:7-445:15. Lewis
testified that, at that time, he was representing Tate in two cases pending before the Broward County
Circuit Court: (1) grand theft in the third degree and (2) resisting arrest without violence and battery.2
Id. at 445:16-446:12. Lewis further explained that he had previously represented Tate in a case
charging burglary of a dwelling with an assault, where the jury had found Tate not guilty after five
minutes of deliberation. Id. at 446:21-447:2. In addition, the probable-cause affidavit filed in
support of the second case was admitted into evidence. Id. at 464:22-468:25.
31. Among other witnesses, Spirit called Philip S. Deming, a professional consultant in the
areas of risk analysis, risk assessment, and human resources. D.E. 1-7 at 293:9-294:7. Although
Spirit sought admission of Deming as an expert in the area of workplace threat assessment and
security, see D.E. 1-7 at 293:21-299:5, the Board permitted Deming to testify only as to his
assessments regarding Tate’s relationship with Gilmore. Id. at 303:15-304:23. Deming testified that
in evaluating Tate’s behavior with respect to Gilmore, he conducted a search of publicly available
records, which included the records pertaining to restraining orders and criminal charges discussed
above. Id. at 305:17-306:14. He concluded that if Spirit were to terminate Tate’s employment, the

2

After the Board issued its decision and the process had been completed, the two criminal
cases were ultimately dismissed.
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termination would be “high risk.” Id. at 322:25-325:5. Indeed, Deming characterized terminating
Tate as “the highest risk separation I would ever be involved in,” in thirty years of such work. Id.
at 325:4-:6. He further expressed concern that “judgment is a key component of representing the
airline; and if [Tate] exercises inappropriate judgment off work, how is he going to conduct himself
when he is commanding an aircraft with revenue passengers?” Id. at 346:4-:16.
32. Although Tate continued to argue that Spirit’s Notice of Investigation was untimely, see
D.E. 18-2 at 32, the Board ruled on the merits of the grievance. See, generally, D.E. 18-2.
E. The Board’s Decision
33. On July 12, 2012, in a 2-1 decision, the Board denied Tate’s grievance and concluded
that Spirit “had just cause to effect the termination of Captain William Tate . . . .” D.E. 18-2 at 82.
In reaching this conclusion, the Board explained,
In this case the Company has painted a picture of a pilot that has lost
his social filter and governor. Since at least 2003 Captain Tate has
had serious anger management issues to the extent that by 2004 he
had been twice suspended (14 and 21 days), the last suspension the
result of an arbitrator converting a discharge due to insufficient
evidence by the Carrier. In 2009 he is again given an NOI over anger
issues toward a vendor of the Company. Captain Tate is accorded yet
another chance to get his anger issues under control and ordered to
undergo anger management counseling. As noted, if he completed
the requirements outlined for him, it was without effect. If he did not
complete the program (as Paul Olechowski asserted) he squandered
a golden opportunity.
If the above events are not sufficient to put management on notice
that Mr. Tate’s decision-making abilities are problematic, a review of
the civil and pending criminal records provides more concerns
regarding Mr. Tate’s character and decision making prowess to
operate an aircraft.[] Clearly, a fair reading of the evidence record is
that nothing has changed since 2003. I[f] anything, matters have
degenerated to the extent that Captain Tate now finds himself
defending an assault charge against a police officer (and a subsequent
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motion to revoke bond by the States’ Attorney) in the criminal forum,
a serious concern to an employer charged with safely operating
aircraft.
Spirit has made it a point to standardize flying and, thus, the
Grievant’s alleged statement that “the book will get you killed”
(denied by the Grievant) is disturbing. As outlined by Mr. Houghton,
“I am a believer that standards and flying by the book, so to speak, is
a safer way of doing business, versus having a lot of different ways
of people going into the cockpit and flying and doing things
differently and not knowing what to expect from each other.” . . . He
continued: “So. . . we worked very hard from the moment I stepped
on at Spirit Airlines, conducting meetings with every check airman on
there to talk about the importance of flying standard and adhering to
standards.”. . . First Officer Gilmore’s experience gave rise to Mr.
Houghton questioning Captain Tate’s overall ability to conform to the
standards outlined by the Carrier. This Board is not in a position to
second guess two pilots, Messrs. Gilmore (who alleged Captain
Tate’s flying “is the most reckless I have ever seen in my professional
aviation career” and whom the Grievant acknowledged had no
“vendetta” against him) and Houghton (Vice President of Flight
Operations who characterized it as “inappropriate”), when they
express reservations regarding the decisions the Grievant made flying
out of Port-au-Prince. Both concluded that the Grievant tended to
pick and choose which standards he would fly by and when they
applied, and there is a basis in fact for this determination. His Portau-Prince (and life) decisions legitimately gave rise to question his
“cockpit resource management,” or “crew resource management.” .
. . or Captain Tate’s willingness to perform his job in the safest
manner possible. In Houghton’s words: “But what we never want is
somebody to be out on the line doing their own thing and doing it
differently than the way it’s been prescribed and the way it’s been
trained.” . . . . Training will not ameliorate Captain Tate’s judgment
issues both in and out of the cockpit. I credit the Carrier’s conclusion
that there is nothing in this record indicating that Captain Tate can be
relied on to conform his behavior to the expectations and safety
mandates of Spirit Airlines. Sadly, nothing has changed since 2003,
as we see it. The record is replete with instances showing Mr. Tate’s
lack of self-control and unwillingness to conform his conduct to
reasonable norms of behavior. Sound judgment and common sense
in decision making are core values at Spirit, and we see no reason to
upset management’s judgment on both issues, given this specific
evidence record.
-16-

D.E. 18-2 at 80-82.
34. The Board was also expressly noted,
So there is no misunderstanding regarding our analysis, the issue is
not whether Captain Tate has ever been convicted of a crime or
whether he can offer an explanation or mitigation for the numerous
protective orders (there are nine of them accumulated in a ten-year
period) secured by private citizens against the Grievant, or whether
Captain Tate manages to escape conviction of a crime (to date, he has
been successful). Rather, the issue is the Company’s legitimate
concern raised by an airline Captain who continually finds himself the
subject of such orders and/or criminal prosecutions by the State of
Florida. This Board cannot rule that management was unreasonable
in concluding that Mr. Tate’s conduct, albeit off duty, potentially
affects his ability to make safety decisions critical to flying an
aircraft. Another way of saying this is the Grievant’s decisionmaking “governor is problematic.” This is not a medical or a
psychological assessment. Rather, it is simply a matter of character
and decision-making prowess which management determined Mr.
Tate lacks. In this case, and under this specific evidence record, that
determination should not be usurped by a System Board not charged
with operating an airline in the safest possible manner.
D.E. 18-2 at 81 n.18.
35. Finally, the Board observed, “in the context of this case, we credit Phil[]ip Deming’s
conclusion regarding the ‘judgment’ required of an airline pilot. In his words, ‘his judgment is a key
component of representing the airline, and if he exercises inappropriate judgment off work, how is
he going to conduct himself when he is commanding an aircraft with revenue passengers[?]’” D.E.
18-2 at 82 n.19.
II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material fact and that the
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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue is genuine if “a
reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of
Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it “might affect the outcome of the
suit under the governing law.” Id. (quoting Anderson, 477 U.S. at 247-48).
On a motion for summary judgment, the Court views the evidence, including all reasonable
inferences drawn from it, in the light most favorable to the non-moving party and resolves all
reasonable doubts against the movant. Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir.
2008); Johnson v. City of Mobile, 321 F. App’x 826, 830 (11th Cir. 2009). The Court does not
weigh conflicting evidence. Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007), reh’g and
reh’g en banc denied, 254 F. App’x 803 (11th Cir. 2007). Nor does the Court determine the
credibility of witnesses. Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012)
(citation omitted). Upon discovering a genuine material dispute, the Court must deny summary
judgment and proceed to trial. Id. at 1292.
The moving party shoulders the initial burden of showing the absence of a genuine issue of
material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the moving party
satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., L.L.C., 327 F. App’x 819,
825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each essential
element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986)). Accordingly, the non-moving party must produce evidence, going
-18-

beyond the pleadings, and by his own affidavits, or by depositions, answers to interrogatories, and
admissions on file, designate specific facts suggesting that a reasonable jury could find in his favor.
Shiver, 549 F.3d at 1343.
Local Rule 56.1, S.D. Fla., further factors into this Court’s consideration of a motion for
summary judgment. Under Local Rule 56.1, a party moving or opposing summary judgment must
submit a “statement of the material facts as to which it is contended that there does not exist a
genuine issue to be tried or there does exist a genuine issue to be tried, respectively.” S.D. Fla. L.R.
56.1(a). The rules require these statements be supported by “specific references” to evidence on the
record. S.D. Fla. L.R. 56.1(a)(2). The Local Rules expressly caution, “All material facts set forth
in the movant’s statement filed and supported as required above will be deemed admitted unless
controverted by the opposing party’s statement, provided that the Court finds that the movant’s
statement is supported by evidence in the record.” S.D. Fla. L.R. 56.1(b) (emphasis added). But
even where an opposing party neglects to submit any alleged material facts in controversy, the court
must still satisfy itself that the evidence on the record supports the uncontroverted material facts that
the movant has proposed. Reese v. Herbert, 527 F.3d 1253, 1268-69, 1272 (11th Cir. 2008); United
States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave., Miami, Fla., 363 F.3d 1099, 1103
n.6 (11th Cir. 2004).
B. Standard of Review for a System Board Award Issued Under the Railway Labor Act
As an air carrier operating in interstate commerce, Spirit must comply with the provisions
of the Railway Labor Act, 45 U.S.C. §§ 151-188 (“RLA”). See 45 U.S.C. § 181; Loveless v. Eastern
Air Lines, Inc., 681 F.2d 1272, 1275 (11th Cir. 1982) (citations omitted). Congress enacted the RLA
to avoid labor-based interruptions to commerce or to the operation of the railway and airline
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industries. Stewart v. Spirit Airlines, 503 F. App’x 814, 817 (11th Cir. 2013) (citing 45 U.S.C. §
151a(1)). The RLA requires every carrier and its employees to establish a board of adjustment to
deal with grievances arising out of the carrier-employee relationship. See 45 U.S.C. § 184. In this
case, the Board fulfills this role.
Under the terms of the RLA, a court may overturn a board of adjustment’s award only if one
of three circumstances exists: (1) the board of adjustment has failed to comply with the requirements
of the RLA; (2) the board of adjustment’s order does not “conform, or confine itself, to matters
within the scope of the [board’s] jurisdiction; or (3) a member of the board of adjustment panel that
has made the award has engaged in fraud or corruption. Henry v. Delta Air Lines, 759 F.2d 870, 872
(11th Cir. 1985) (citing 45 U.S.C. § 153(q)). This scope of review has been described as “among
the narrowest known to the law,” id. (quoting Diamond v. Terminal Railway Alabama State Docks,
421 F.2d 228, 233 (5th Cir. 1970)), and a court may neither review the substance of such an award
for ordinary error nor vacate an award because a judge might have reached a different result.
Loveless, 681 F.2d at 1276 (citations omitted). Instead, substantive grounds for vacating an award
where a board’s order does not “conform, or confine itself, to matters within the scope of the
[board’s] jurisdiction” exist only in the following three situations: (1) the award is “irrational,”
meaning “wholly baseless and completely without reason,” Loveless, 681 F.2d at 1276 (citations
omitted); (2) the award has no “rationally inferable” basis from the “letter or purpose of the
collective bargaining agreement,” id. (citations omitted); or (3) the arbitrator failed to conform to
a specific contractual limitation upon his authority, id. (citations omitted); see also Brotherhood of
Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment CSX Transp. N. Lines, 455 F.3d 1313,
1315-16 (11th Cir. 2006) (citation omitted).
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C. Tate’s Issues on Appeal
Here, Tate appears to seek review based on the Board’s alleged failure to “conform, or
confine itself, to matters within the scope of the [board’s] jurisdiction.” See D.E. 29 at 11; see also
45 U.S.C. § 153(q). More specifically, Tate contends that the Board acted in excess of its
jurisdiction by
I.

affirming a termination flowing from a notice of investigation
that was untimely under the contract that the Arbitrator was
supposed to interpret;

ii.

affirming a termination based on allegations in the
termination letter . . . that the Arbitrator determined to be
unfounded, i.e.:
(1)

being non-compliant with the anger management
protocol prescribed by the August 2009 agreement;

(2)

“us[ing] profanity several times on October 4, 2010
when you were speaking to Aetna Supervisor Steve
Parris” when the only evidence of that was Capt.
Tate’s having conceded saying “you know, what the
hell is going on or, you know, you guys need to get
your shit together”;

(3)

the Port-au-Prince takeoff, which the Arbitrator
determined was not a ground for termination;

(4)

the interaction between Capt. Tate and his first officer, []

(5)

an alleged failure to comply with Spirit policy and Federal Aviation
Regulations (“FARs”) concerning his treating with a licensed clinical
social worker and his taking St. John’s Wort — which not only was
not mentioned in the October 27 letter, but which the Arbitrator ruled
was a matter for the FAA, not for a systems board.

D.E. 1 at 10-11. He further argues that the Board denied him due process
by essentially trying him on uncharged offenses — e.g., the criminal
allegations of which he was found not guilty (two); a bond-revocation
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motion that not only was denied, as well as the underlying arrest (that
was later nolle prossed), concerning which there was no testimony
before the arbitrator other than hearsay affidavits; ex parte restraining
orders; a seven-year-old pilot-to pilot confrontation for which Capt.
Tate was never disciplined; and a “threat assessment expert’s”
unscientific assertion that the courthouse records he had found, and
what people told him about Capt. Tate, gave him enough information
to form an opinion that Capt. Tate is a dangerous pilot.
Id. at 11.
D. The Board Did Not Act in Excess of Its Jurisdiction
1. The Award May Not Be Vacated for Untimeliness
Without citation, Tate argues that the Board’s award must be vacated because the Board
should have rejected Spirit’s position since it allegedly failed to comply with the time requirements
for issuing a Notice of Investigation to Tate. This Court disagrees.3
In Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89 (1978), a railway employee filed an
action in state court alleging wrongful discharge and denial of a fair hearing. While his case was
pending, the Supreme Court issued Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320
(1972), which held that a railroad employee must submit any dispute under a collective-bargaining
agreement to the National Railroad Adjustment Board for resolution in accordance with the RLA.
See Sheehan, 439 U.S. at 89. Therefore, the employee dismissed his suit without prejudice and
3

Plaintiff has standing to advance his claims pursuant to 45 U.S.C. § 153 First (q) because
they involve Plaintiff’s uniquely individual grievance. See McQuestion v. N.J. Transit Rail
Operations, 892 F.2d 352, 354 (3d Cir. 1990) (holding that the plain language of 45 U.S.C. § 153
First (q) provided an individual employee with standing in federal court to petition Board’s
decision where the proceedings before the Board were conducted solely to resolve the
employee’s “uniquely individual grievances”); Fine v. CSX Transportation, Inc., 229 F.3d 1151
(6th Cir. 2000) (finding that the Railway Labor Act permits both individual employees and
unions the right to petition a Board decision in district court). See also Steward v. AirTran
Airways, Inc., 221 F. Supp. 2d 1307, 1311 (S.D. Fla. 2002), aff’d sub nom. Steward v. Mann, 351
F.3d 1338 (11th Cir. 2003); Mitchell v. Cont’l Airlines, Inc., 481 F.3d 225, n.24 (5th Cir. 2007).
-22-

initiated a proceeding before the Adjustment Board. The Adjustment Board dismissed the
employee’s claim, however, because he had not filed his appeal to the Adjustment Board within the
time limits set forth by the collective-bargaining agreement.
The employee then filed a complaint in United States district court, arguing that the time
requirements of the collective-bargaining agreement had been tolled while his case was pending in
state court and seeking an order requiring the Adjustment Board to hear the merits of his case.
Although the district court found the employee’s argument persuasive, it nonetheless granted
summary judgment to the railroad because it concluded that the employee had failed to demonstrate
the existence of any of the grounds for reversal of an Adjustment Board decision set forth at 45
U.S.C. § 153(q). The Tenth Circuit reversed.
The Supreme Court held that the Tenth Circuit had exceeded the scope of its jurisdiction to
review decisions of the Adjustment Board. 439 U.S. at 92-93. In particular, the Supreme Court
referred to the second § 153(q) factor and explained that the Adjustment Board had acted within its
jurisdiction by determining whether the time limitation imposed by the collective-bargaining
agreement was tolled by the filing of the employer’s state-court action. Id. at 93-94. As a result, the
Court reasoned, judicial review of the Adjustment Board’s determination was precluded. Id. at 94.
This case is materially indistinguishable. Similar to the time limit on appealing to the
Adjustment Board imposed by the Sheehan collective-bargaining agreement, the Agreement in the
pending matter specifically addresses the time limit for an employer to serve a Notice of
Investigation. See §19.A.3. As in Sheehan, it was therefore uniquely within the province of the
Board to determine whether the employer — in this case, Spirit — had complied with the time
requirement.
-23-

While Tate suggests that the Board never made such a determination, this Court disagrees.
First, the Board denied Tate’s Motion for Summary Judgment in which he sought dismissal of all
discipline against him based on Spirit’s alleged failure to timely provide Tate with a Notice of
Investigation. See D.E. 1-5. Second, Tate again brought up the issue during the three-day hearing
before the Board, and the Board expressly acknowledged in its final decision that Tate continued to
press the argument. See D.E. 18-2 at 32-33. Despite these facts, the Board issued a final decision
on the merits, thereby implicitly rejecting Tate’s timeliness argument. See D.E. 18-2. This Court
is not free to disregard the Board’s determination. See Sheehan, 439 U.S. 89.
Moreover, even if it were, this Court would reach the same conclusion. The Notice of
Investigation put Tate on notice that Spirit was investigating his
inappropriate behavior in violation of Company policies, including
but not limited to your conduct while speaking with Aetna and other
Spirit employees on or about October 4, 2010, your conduct towards
the First Officer on NK 952 PAP-FLL on August 20, 2010 (including
conduct after that flight), your conduct towards T. Rowe Price on
August 4, 2010, certain allegedly threatening comments to other
Spirit pilots, allegations that you were lying on the floor of the
cockpit on a flight from SJU on or about February 2010, and your
alleged failure to follow Company policies/procedures/standards and
to comply with Company instructions including but not limited to the
following matters: you [sic] alleged failure to operate NK 952 PAPFLL on August 20, 2010 according to Company
policies/procedures/standards and your failure to comply with the
requirements of your August 19, 2009 resolution letter. . . .
D.E. 18-2 at 5-6. While Tate attempts to impose a separate “statute of limitations” on each
specifically identified incident noted in the Notice, that is not how the Notice of Investigation is
written. Rather, the Notice refers to a pattern of conduct, describing it as a whole as “inappropriate
behavior in violation of Company policies . . . .” Contrary to Tate’s contention, the Notice makes

-24-

clear that Spirit views the totality of Tate’s actions over an extended period as warranting
disciplinary action. Indeed, Houghton’s testimony before the Board likewise confirmed that the
Notice of Investigation had been issued as a result of “the overall picture” painted by Tate’s lengthy
history of incidents. See D.E. 1-6 at 177:20-178:12.
Nor does the fact that the last incident cited in the Notice of Investigation occurred on
October 4, 2010, mandate a finding that the issuance of the Notice on October 27, 2010, was
untimely. As noted above, it was the recognition of the totality of events that had occurred over an
extended period that gave rise to charges set forth in the Notice of Investigation. In the course of
determining how to proceed, Houghton conducted a basic investigation into the allegations against
Tate. To Houghton, it was significant to his ultimate determination to proceed with discipline that
witnesses felt strongly enough about their allegations to place them in writing. See id. Houghton
did not receive the written statements from Gilmore and Singleton-Mana until October 20, 2010, and
he did not obtain a written statement from Webster until October 22, 2010.4 At that time, Houghton
“ha[d], or would reasonably be expected to have [had], knowledge of the circumstances giving rise”
to the charges set forth in the Notice of Investigation. See D.E. 1-1 at §19.A.3. Because the Notice
of Investigation was issued four or five working days later, on October 27, 2010, it was timely.5

4

This is not a situation where the pre-investigation period was abusively, or even
unreasonably, long, considering the fact that Houghton had only just become the Vice President
of Flight Operations on October 1, 2010, and he was investigating a number of incidents that had
occurred over several years.
5

In addition, the manner in which “working days” are to be counted under the Agreement
is a matter within the jurisdiction of the Board. See D.E. 1-1 at § 21.C (“The Board shall have
jurisdiction over disputes . . . arising out of grievances concerning the interpretation or
application of any of the terms or provisions in the Agreement . . . .”). Section 19.A.3, in turn,
requires a Notice of Investigation to be “issued within 15 working days of the date upon which
an individual with managerial authority in the Flight Operations Department has, or would
-25-

2. The Board Did Not Exceed Its Jurisdiction by Affirming the Termination of Tate
Tate next complains that the Board exceeded its jurisdiction by affirming Spirit’s termination
decision, even though the Board expressly declined to accept and rely upon some of the information
contained within the Notice of Investigation. Notably, however, Tate does not even attempt to
identify a section of the Agreement that might preclude the Board from upholding a disciplinary
decision where it declined to credit some portions of the Notice of Investigation.
Presumably, that is because, under the Agreement, determining what to rely upon in
affirming, overturning, or modifying a disciplinary order is a matter that falls exclusively within the
jurisdiction of the Board. As the Agreement itself explains, the Board’s purpose is to “adjust[] and
decid[e] disputes that may arise under the terms of [the] Agreement . . . .” D.E. 1-1 at § 21.A. The
Agreement further provides that the Board has “jurisdiction over disputes between any pilot covered
by this Agreement and the Company submitted to it by [ALPA] arising out of grievances concerning
the interpretation or application of any of the terms or provisions in the Agreement . . . .” Id. at §
21.C.1. As for hearings, the Agreement allows the chairman of the Board to “subpoena evidence and
witnesses who may be deemed necessary by the parties to the dispute, or by either party, or by the
Board itself.” Id. at § 21.F.3. Beyond that and the requirement of a hearing, the Agreement provides
no details regarding what the Board may consider or how the Board must determine whether to
uphold a disciplinary decision. Thus, under the terms of the Agreement, these are matters for the
Board to determine.

reasonably be expected to have, knowledge of the circumstances giving rise to such
investigation.” D.E. 1-1. Here, the last isolated event occurred on October 4, 2010. Discounting
the day of the event, the day that the Notice of Investigation was issued, weekend days, and the
federal holiday of Columbus Day, the Board could have concluded that the Notice of
Investigation was issued within fifteen working days of the October 4, 2010, incident.
-26-

Nor does Tate suggest that the Board acted irrationally or without reason. And he is right not
to do so. Regardless of whether Tate agrees with the Board’s 82-page decision, the opinion
nonetheless makes clear that the Board certainly had reasons for the determination that it made. In
short, Tate has not shown — and cannot demonstrate — that the Board exceeded its jurisdiction in
upholding Tate’s termination, even though the Board did not credit some of the information that the
Notice of Investigation included.
3. The Award Will Not Be Vacated on Due-Process Grounds
Finally, Tate urges that the Board denied his due-process rights by “essentially trying him on
uncharged offenses.” D.E. 1 at 11. In this regard, Tate takes issue with the presentation at the
hearing of evidence regarding criminal charges and restraining orders against Tate, Webster’s sevenyear-old confrontation with Tate, and the threat-assessment expert’s opinion regarding Tate.
The Supreme Court has relatively recently opined that whether a reviewing court may set
aside a board’s decision for failure to comport with due process remains an open question. Union
Pac. R. Co. v. Bhd. of Locomotive Eng’rs and Trainmen Gen. Comm. of Adjustment, Cent. Region,
558 U.S. 67, 80-81 (2009) (“Locomotive Eng’rs”). But in the Eleventh Circuit, that question has
been answered in the negative. See Henry v. Delta Air Lines, 759 F.2d 870, 873 (11th Cir. 1985).6
For this reason alone, Tate’s due-process challenge must be denied.
Nevertheless, the Supreme Court has observed that “many of the cases reviewing ostensibly
6

While Tate suggests that the Eleventh Circuit is bound by its predecessor court’s
discussion in Hornsby v. Dobard, 291 F.2d 483, 487 (5th Cir. 1961), suggesting that a board’s
decision may be set aside for defects rising to the level of due process of the law, the Fifth Circuit
issued Hornsby in 1961, seventeen years before the Supreme Court issued Sheehan, 439 U.S. 89,
the case on which the Eleventh Circuit relied in concluding that due-process challenges to board
awards are not viable. Because Henry is based on an intervening Supreme Court decision,
Hornsby no longer constitutes binding precedent in the Eleventh Circuit.
-27-

extra-statutory due process objections could have been accommodated within the statutory
framework” and that “[t]he statutory review provisions are plainly generous enough to permit
litigants to raise all of the simple, common, easily adjudicated, and likely to be meritorious claims
that sail under the flag of due process of law. . . .” Locomotive Eng’rs, 558 U.S. at 81 n.7 (citation
and internal quotation marks omitted). Therefore, the Court considers Tate’s “due-process”
objections within the framework established by Section 153(q). In so doing, the Court construes
Tate’s due-process complaints as concerns that the Board exceeded its jurisdiction when it heard and
considered evidence regarding the criminal charges, the restraining orders, Webster’s seven-year-old
conflict with Tate, and the threat assessment expert’s opinion about Tate.
This Court disagrees that the Board could not, within its jurisdictional grant, hear and take
into account this evidence. As previously discussed, the Board has jurisdiction over all disputes
between Spirit and a pilot submitted to it by ALPA, and the Agreement does not specify much at all
about how the Board must conduct its hearings or what the Board may consider in determining
whether to uphold, modify, or overturn disciplinary decisions. Accordingly, these matters fall within
the Board’s exclusive jurisdiction and may not be challenged on appeal.
Moreover, it is apparent from the Board’s award that it seriously considered and addressed
Tate’s concerns regarding the evidence described above. See D.E. 18-2 at 72-78. After citing and
discussing other cases involving off-duty conduct bearing on the termination of a pilot’s
employment, the Board explained,
“Related” and “connected acts” may be considered to bolster the
employer’s initial grounds for discharge. Thus, when the employee’s
conduct bears a close and logical relation to the original misconduct
giving rise to the discharge, post-discharge conduct is relevant and
considered by arbitrators. . . . Additionally, to the extent that a pilot’s
-28-

conduct, whenever discovered, gives rise to his overall physical or
mental ability to ferry an aircraft, it is relevant evidence either to
support management’s initial decision or, alternatively, as evaluative
evidence with respect to the question of a remedy requested by the
pilot. . . . Anything that an airline captain does, on or off-duty, is
fair game if relevant to his physical or mental capacity to fly an
airplane. Any ruling to the contrary would be non-sensical and
invite judicial review.”
D.E. 18-2 at 72-73 (citation omitted).
Finally, even if Tate could bring a due-process challenge, the Court disagrees with Tate’s
fundamental premise that he was denied due process. A review of the record reveals plainly that
Tate had an extensive opportunity during the three-day hearing to present his side of the story when
he was confronted with the challenged evidence. Nor did Tate request additional time to find his
own evidence to rebut the evidence he now challenges. For all of these reasons, Tate cannot succeed
on his due-process claim here.
III. Conclusion
For the foregoing reasons, the Court GRANTS Spirit’s Motion for Summary Judgment [D.E.
17].
DONE and ORDERED at Fort Lauderdale, Florida, this 12th day of July 2013.

ROBIN S. ROSENBAUM
UNITED STATES DISTRICT JUDGE
copies to:
The Honorable Patrick M. Hunt
Counsel of record

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