Bader et al v. United Airlines, Inc.
Filing
136
MEMORANDUM Opinion and Order. United's motion for summary judgment 70 is granted and Plaintiffs' partial motion for summary judgment 109 is denied. Civil case terminated. Signed by the Honorable Jorge L. Alonso on 6/4/2018. Notices mailed by judge's staff (ntf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DOUGLAS BADER, CHARLES DOYLE,
and RALPH J. RINA,
Plaintiffs,
v.
UNITED AIRLINES, INC.,
Defendant.
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No. 14 C 2589
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
Plaintiffs Douglas Bader, Charles Doyle, and Ralph Rina have brought this action against
their former employer Defendant United Airlines, Inc. (“United”). Plaintiffs bring age
discrimination and retaliation claims under the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621 et seq. Plaintiffs also bring related state law claims. Before the
court is United’s motion for summary judgment and Plaintiffs’ partial motion for summary
judgment as to liability. 1 For the reasons set forth below, United’s motion for summary
judgment [70] is granted, and Plaintiffs’ partial motion for summary judgment [109] is denied.
BACKGROUND
Prior to 2010, Plaintiffs were Pilot Instructor/Evaluators (“I/Es”) at Continental Airlines
(“Continental”). Federal law prevents anyone over the age of 65 from serving as a pilot in most
1
Plaintiffs do not specify which claims they intended to cover in their partial motion for summary judgment. The
court construes the motion as seeking summary judgment on all remaining claims.
commercial operations. While working for Continental, Plaintiffs were unable to fly the line 2
since they were over 65 years old, but Plaintiffs were able to work for Continental as Non-Line
Qualified Flight Instructors (“NLQFIs”). In 2010, United entered into a merger with
Continental. Airline Pilots Association, International (“ALPA”) is the labor organization that
represented Plaintiffs and other I/Es at the time of the merger. After the merger, United and
ALPA negotiated a new collective bargaining agreement referred to as the United Pilot
Agreement (“UPA”), which became effective December 18, 2012. The UPA included a
qualification for the I/E position that United had in place since at least 1989 (“United Policy”).
The United Policy required that all I/Es fly the line at least 30 days a year. As a result, after the
merger, Plaintiffs could not serve as I/Es for United since they were unable to fly the line.
In a Letter of Agreement, dated December 18, 2012 (“LOA 18”), which was made a part
of the UPA, United and ALPA agreed to a transitional period of twelve months after the
effective date of the UPA that allowed NLQFIs who exceeded the statutory age limit for pilots to
continue to work in the I/E position. The transitional period ran from December 2012 through
December 2013. During the transitional period, United also utilized Continental’s Advanced
Qualification Program (“AQP”). 3 Under the UPA, after the transitional period, NLQFIs were
treated like any other pilots and were removed from the pilot seniority list when they reached the
statutory age limit. In June 2013, Plaintiffs sent a letter (“June 2013 Letter”) to the Continental
ALPA Master Executive Council (“Council”) requesting that their seniority be restored and that
their retirement date be rescinded. The Council responded in July 2013 that it did not have
unilateral authority to strike or modify provisions of the UPA. Plaintiffs contend that they did
2
The phrase “flying the line” refers to the piloting of scheduled passenger flights in revenue service.
Under an AQP an airline can create a customized pilot training and evaluation program, which must be reviewed
and approved by the Federal Aviation Administration (“FAA”). As part of the merger United adopted Continental’s
AQP subject to a transition plan. The AQP was eventually amended to bring it in compliance with United’s policy
in regard to NLQFI’s.
3
2
not understand the Council’s response at that time to be a final rejection of Plaintiffs’ requests
and so delayed in pursuing certain claims. Plaintiffs ultimately all retired near the end of the
transitional period.
On April 10, 2014, Plaintiffs filed the instant action and included in their complaint
ADEA disparate treatment and disparate impact discrimination claims (Count I), ADEA
retaliation claims (Count II), a claim by Doyle under the Kentucky Civil Rights Act, KRS
344.010 et seq. (Count III), a claim by Bader under the Colorado Anti-discrimination Act
(“CADA”), § 24-34-301 et seq. (Count IV), a claim by Rina under the Arizona Civil Rights Act
(“ACRA”), A.R.S. § 41–1401 et seq. (Count V), wrongful discharge claims (Count VI), breach
of covenant of good faith and fair dealing claims (Count VII), intentional infliction of emotional
distress claims (Count VIII), and interference with prospective economic advantage claims
(Count IX). On January 16, 2015, this action was transferred to the undersigned judge. On July
9, 2015, this court granted in part United’s motion to dismiss and dismissed all claims in Counts
VI-IX. United has filed a motion for summary judgment on the remaining claims and Plaintiffs
have filed a partial motion for summary judgment as to liability on the remaining claims. 4
STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). In considering such a motion, the court construes the evidence and all inferences
that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. See
Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014). “Summary judgment should be
4
This action is related to Bader v. Airline Pilots Association, International (14 C 6415) .
3
denied if the dispute is ‘genuine’: ‘if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’ ” Talanda v. KFC Nat’l Mgmt. Co., 140 F.3d 1090, 1095 (7th
Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see also Bunn v.
Khoury Enters., Inc., 753 F.3d 676, 681–82 (7th Cir. 2014). The court will enter summary
judgment against a party who does not “come forward with evidence that would reasonably
permit the finder of fact to find in [its] favor on a material question.” Modrowski v. Pigatto, 712
F.3d 1166, 1167 (7th Cir. 2013). It is well settled that at the summary-judgment stage, the court
does not make credibility determinations, weigh evidence, or decide which inferences to draw
from the facts; those are jury functions. See Gibbs v. Lomas, 755 F.3d 529, 536 (7th Cir. 2014).
When there are cross motions for summary judgment, the court should “construe the evidence
and all reasonable inferences in favor of the party against whom the motion under consideration
is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526–27 (7th Cir.
2005).
DISCUSSION
I. ADEA Retaliation Claims (Count II)
United argues that Plaintiffs have failed to exhaust their administrative remedies for their
ADEA retaliation claims. A plaintiff seeking to bring an ADEA claim in federal court must first
exhaust his administrative remedies. Kleber v. CareFusion Corp., 888 F.3d 868, 889 (7th Cir.
2018); Straub v. Jewel Food Stores, Inc., No. 17 CV 6401 2018 WL 1993394, at *2 (N.D. Ill.
April 27, 2018) (stating that “a plaintiff must exhaust his administrative remedies by presenting
any . . . ADEA claims to the EEOC before filing a lawsuit”). An ADEA claim that is not
specifically referenced in an administrative charge is only cognizable if it is “‘like or reasonably
4
related to the allegations of the charge and growing out of such allegations.’” Kleber, 888 F.3d
at 889 (quoting Noreuil v. Peabody Coal Co., 96 F.3d 254, 258 (7th Cir. 1996)); see also
Krzeptowski v. Corrugated Supplies Co., LLC, No. 17 CV 938, 2018 WL 1378179, at *4 (N.D.
Ill. March 19, 2018) (stating that “‘[a]t a minimum, this means that the EEOC charge and the
complaint must describe the same conduct and implicate the same individuals’”) (quoting Ezell
v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005)); Belcher v. Springfield Coll., 17 CV 1086, 2018
WL 437793, at *2 (E.D. Wis. Jan. 16, 2018) (stating that “[b]efore filing a lawsuit alleging
claims under Title VII and the ADEA, an individual must exhaust her administrative remedies
by: (1) filing a timely charge of discrimination with the EEOC; and (2) filing suit within ninety
days of receiving a right to sue letter from the EEOC with respect to the timely charge”); Little v.
Illinois Dep't of Pub. Health, No. 16 CV 10377, 2017 WL 5903835, at *2–3 (N.D. Ill. Nov. 30,
2017) (stating that “[t]he proper scope of a judicial proceeding following an EEOC charge is
limited by the nature of the charges filed with the EEOC,” and that “plaintiffs can only pursue
claims in civil proceedings in federal court that could reasonably be expected to grow out of the
administrative charges”) (internal quotations omitted) (quoting Hopkins v. Bd. of Educ. of City of
Chi., 73 F. Supp. 3d 974, 982 (N.D. Ill. 2014) and Reynolds v. Tangherlini, 966 F.3d 1093,
1099–100 (7th Cir. 2013)).
It is undisputed that prior to bringing the instant action, Plaintiffs did not assert unlawful
retaliation in any of their filings with the Equal Employment Opportunity Commission
(“EEOC”) or other administrative agencies. United asserts in Paragraphs 81-84 of its Statement
of Undisputed Material Facts in Support of its Motion for Summary Judgment that Plaintiffs
asserted unlawful discrimination, but did not assert retaliation in their administrative charges.
(United Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment
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“USOF” Dkt. No. 71 ¶¶ 81-84). United also contends that Bader actually affirmatively
represented on his EEOC questionnaire that he had not ben retaliated against. (USOF ¶ 84).
Plaintiffs agree to certain of United asserted facts, and offer arguments and objections as to
certain others. (R USOF ¶ 81-84). Plaintiffs, however, fail to cite to the record or evidence to
support any denials and such facts are therefore deemed to be undisputed pursuant to Local Rule
56.1. See Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (stating that
“where a non-moving party denies a factual allegation by the party moving for summary
judgment, that denial must include a specific reference to the affidavit or other part of the record
that supports such a denial”); see also Boss v. Castro, 816 F.3d 910, 914 (7th Cir. 2016) (stating
that “[t]he district court’s discretion to require strict compliance with Local Rule 56.1 has been
upheld time and again”).
Plaintiffs have not shown, based on the facts in this case, that their retaliation claims are
like or reasonably related to their discrimination claims or would be expected to grow out of an
investigation of the charges. See Swearnigen-El v. Cook Cty. Sheriff's Dep't, 602 F.3d 852, 864–
65 (7th Cir. 2010) (stating that “[n]ormally, retaliation and discrimination charges are not
considered ‘like or reasonably related’ to one another”) (quoting Sitar v. Ind. Dep't of Transp.,
344 F.3d 720, 726 (7th Cir. 2003)); Zegarra v. John Crane, Inc., 218 F. Supp. 3d 655, 663 (N.D.
Ill. 2016) (stating that “settled precedent holds that allegations of discrimination in an EEOC
charge are not like or reasonably related to allegations of retaliation, and therefore are not
sufficient to support a retaliation claim”) (emphasis in original). Plaintiffs’ retaliation claims
also stem from more than retaliation related to the filing of the instant action. See Zegarra, 218
F. Supp. 3d at 663 (explaining that generally “a separate administrative charge is not prerequisite
to a suit complaining about retaliation for filing the first [EEOC] charge”) (internal quotations
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omitted) (quoting Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989)). This is
apparent by the fact that Plaintiffs contend that some of the retaliation occurred prior to the filing
of the instant action. (Plaintiffs’ Memorandum of Law in Opposition to United’s Motion for
Summary Judgment and in Support of Plaintiffs’ Partial Motion for Summary Judgment “P.
Opp./SJ” Dkt. No. 109 at 3).
Plaintiffs’ main argument is that the majority of the alleged retaliatory conduct occurred
after they had already filed their discrimination charges. That would not, however, explain why
Plaintiffs did not assert the alleged retaliation that occurred before their charges or excuse
Plaintiffs from the need to file separate charges for their retaliation claims. In addition, once
Plaintiffs received right-to-sue letters on their retaliation claims, Plaintiffs could have sought
leave to amend their complaint in this matter to add such claims. The record, however, does not
reflect that Plaintiffs took any such steps to properly exhaust their administrative remedies as to
their ADEA retaliation claims.
The court notes that even if Plaintiffs had exhausted their administrative remedies, the
only retaliatory actions alleged after the filing of the EEOC complaints are: (1) the 777 Simulator
was moved from the Houston Training Facility to Denver in the summer of 2013; (2) Plaintiffs
were not invited to a November 2013 Standards Meeting, and (3) Plaintiffs were declared to be
surplus and were forced to bid on a new position in November 2013. (P. Opp./SJ at 4). In regard
to the move of the 777 Simulator, it is undisputed that the simulator was moved from Houston
because United needed the space in Houston for a new simulator and that the move affected all
I/Es whether line qualified or not. (R USOF ¶¶ 67–68). In regard to the November 2013
Standards Meeting, it is undisputed that the purpose of the meeting was to train I/Es as to
regulations and changes in the upcoming year and Plaintiffs were not going to be employed as
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I/Es in the upcoming year. (R USOF ¶¶ 77–78). In regard to bidding for the position in 2013,
it is undisputed that all I/Es in Houston were deemed surplus, whether line qualified or not. (R
USOF ¶¶ 69–72). Thus, even if Plaintiffs had exhausted their administrative remedies on their
ADEA retaliation claims, such claims would fail on their merits. Therefore, United’s motion for
summary judgment on the ADEA retaliation claims is granted and Plaintiffs’ partial motion for
summary judgment on the ADEA retaliation claims is denied.
II. Age Discrimination Claims (Counts I, III, IV, and V)
United argues that one age discrimination claim has not been administratively exhausted
and that certain age discrimination claims are untimely. In addition, both sides argue that they
have pointed to sufficient evidence of age discrimination or a lack of evidence of age
discrimination to prevail on their motions for summary judgment.
A. Exhaustion of Administrative Remedies
United argues that Rina has failed to exhaust the administrative remedies for his ACRA
claim. A plaintiff must first exhaust available administrative remedies before filing an ACRA
claim in court. See Loos v. Lowe’s HIW, Inc., 796 F. Supp. 2d 1013, 1017–18 (D. Ariz. 2011)
(stating that “ACRA . . . requires administrative exhaustion before a plaintiff can file a claim”);
Madden-Tyler v. Maricopa Cty., 943 P.2d 822, 828 (Ct. App. Ariz. 1997) (stating that “ACRA
requires that a charge first be filed with the” Arizona Civil Rights Division (“ACRD”) “within
180 days after the alleged unlawful employment practice occurred”); see also Arizona ex rel.
Horne v. Geo Grp., Inc., 816 F.3d 1189, 1194 (9th Cir. 2016) (addressing charge filed with
8
EEOC and ACRD); Lopez v. Produce Exch., 171 F. App’x 11, 13 (9th Cir. 2006) (referencing
“period in which the ACRD and EEOC respectively possessed exclusive jurisdiction”).
Plaintiffs do not dispute that Rina failed to pursue an administrative remedy with the EEOC in
Arizona or with the ACRD. Plaintiffs instead claim that Rina initially filed a claim in Arizona,
but since Rina had worked in Texas, the complaint was transferred to the Texas Commission on
Human Rights. Even if that were true, such facts at best suggest that Rina may have exhausted
some unpled Texas state law claim. United asserts and Plaintiffs do not dispute that Rina
pursued a charge in Texas with the Texas Workforce Commission Civil Rights Division. (R
USOF ¶ 83). The undisputed facts show that Rina has not pursued an administrative charge
through the Arizona administrative agencies that would enable him to bring an ACRA claim.
Accordingly, summary judgment for United on this claim is granted.
B. Timeliness of Certain Claims
United argues that Bader’s ADEA and CADA claims are untimely. A plaintiff seeking to
bring an ADEA claim in court must file the claim “within 300 days of the alleged discriminatory
act or unlawful practice.” Riley v. Elkhart Cmty. Sch., 829 F.3d 886, 890–91 (7th Cir. 2016)
(citing 29 U.S.C. § 626(d)(1)(B)). A plaintiff seeking to pursue a CADA claim must file “a
charge with the” Colorado Civil Rights Division “within six months after the unfair or
discriminatory employment action.” Matlock v. Denver Health & Hosp. Auth., No. 12 CV 3164,
2013 WL 6168395, at *2 n.2 (D. Colo. Nov. 25, 2013) (citing Colo. Rev. Stat. § 24–34–403);
Shepherd v. U.S. Olympic Comm., 94 F. Supp. 2d 1136, 1147 (D. Colo. 2000) (stating that
“CADA requires the filing of a discrimination charge within six months of the alleged
discriminatory practice”). United contends that Bader knew of his alleged injury resulting from
discrimination on December 18, 2012, which was the effective date of LOA 18. United contends
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that Bader did not file his charge of discrimination until February 20, 2014, well after the
limitations periods had run for the ADEA and CADA claims. Plaintiffs acknowledge that Bader
filed outside the limitations periods, but contend that in mid-summer 2013 ALPA indicated to
Plaintiffs that it was going to review the possibility of having LOA 18 amended or withdrawn.
Plaintiffs contend that such representations by ALPA caused Bader to delay his filings.
Although Plaintiffs do not specifically assert the legal basis for their argument, it appears
that Plaintiffs are arguing that the equitable tolling doctrine and/or the estoppel doctrine apply in
this instance. 5 A statute of limitations period can be tolled under the equitable tolling doctrine
“when a plaintiff, despite the exercise of due diligence and through no fault of his own, cannot
determine information essential to bringing a complaint.” Liberty v. City of Chicago, 860 F.3d
1017, 1019 (7th Cir. 2017) (quoting Ashafa v. City of Chicago, 146 F.3d 459, 463 (7th Cir. 1998)
(internal quotations omitted). Under the equitable estoppel doctrine, a party is estopped “from
asserting the expiration of the statute of limitations as a defense when that party’s improper
conduct has induced the other into failing to file within the statutory period.” Liberty, 860 F.3d
at 1020 (quoting Ashafa, 146 F.3d at 462) (internal quotations omitted). In the instant action, the
equitable tolling doctrine is not applicable. The undisputed facts show that Bader was aware of
his alleged injury in December 2012 and he has not pointed to evidence showing that he was
unable to file his claims in time. Nor is the equitable estoppel doctrine applicable in this case.
Plaintiffs allege conduct by ALPA, not United, that they claim caused them to delay the filings.
Plaintiffs have not pointed to evidence showing that United induced Bader to delay timely filing.
5
Unlike in case number 14 C 6415 that Plaintiffs brought against ALPA, the law that relates to duty of fair
representation claims brought against a union that tolls a limitations period for such claims during the pendency of
internal union procedures is not applicable in this case. Frandsen v. Bhd. of Ry., Airline & S.S. Clerks, Freight
Handlers, Exp. & Station Employees, 782 F.2d 674, 681 (7th Cir. 1986).
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United is thus not estopped from asserting the statute of limitations defense and Bader’s age
discrimination claims are untimely.
C. Sufficiency of Evidence of Age Discrimination
The parties contend that they have pointed to sufficient evidence of age discrimination or
lack of evidence of age discrimination and are entitled to summary judgment as a matter of law
on the age discrimination claims.
1. Disparate Treatment Claims
As indicated above, Plaintiffs are pursuing ADEA disparate treatment discrimination
claims. Plaintiffs’ state-law age discrimination claims are evaluated under the same standard
applied to ADEA claims. See Maynard v. Three Rivers Med. Clinics, Inc., No. 17 115 HRW,
2018 WL 738963, at *2 (E.D. Ky. Feb. 6, 2018) (stating that “[t]he Kentucky Civil Rights Act’s
discrimination provisions track [ ] federal law and should be interpreted consonant with federal
interpretation” and that “[a]ccordingly, claims brought pursuant to the Kentucky statute analyzed
under the same standards as federal claims brought under the ADEA”) (internal quotations
omitted) (quoting Gragg v. Somerset Technical College, 373 F.3d 763 (6th Cir. 2004));
Applegate v. Heath Consultants, Inc., No. 16 CV 648, 2017 WL 3268871, at *6 (D. Colo. Aug.
1, 2017) (stating that “[t]he analysis of Plaintiffs’ CADA claim does not differ from the ADEA
analysis”); White v. Home Depot USA Inc., 16 CV 1185, 2018 WL 704328, at *8 (D. Ariz. Feb.
5, 2018) (stating that “‘[a]ge discrimination claims under the ACRA are analyzed under the same
McDonnell Douglas framework as age discrimination claims under the ADEA’”) (quoting
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Knowles v. U.S. Foodservice, Inc., No. 08 CV 1283, 2010 WL 3614653, at *3 (D. Ariz. Sept. 10,
2010)).
The ADEA protects individuals who are over 40 years old from discrimination. See
Formella v. Brennan, 817 F.3d 503, 514 (7th Cir. 2016) (stating that “[t]he ADEA prohibits
employment discrimination against people over 40 years old”). The ADEA provides in relevant
part that “[i]t shall be unlawful for an employer-- . . . to discharge any individual or otherwise
discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age. . . .” 29 U.S.C. § 623(a)(1).
In an ADEA case, a plaintiff bears the burden of showing that “age was the but-for cause
of the challenged adverse employment action.” Carson v. Lake Cty., Indiana, 865 F.3d 526, 532
(7th Cir. 2017) (quoting Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 180 (2009)) (internal
quotations omitted) (explaining that “[i]n this respect, the ADEA is narrower than Title VII of
the Civil Rights Act of 1964, as Title VII also protects against mixed-motive discrimination”);
see also Mullin v. Temco Mach., Inc., 732 F.3d 772, 776 (7th Cir. 2013) (stating that “[t]o
establish an ADEA violation, ‘an employee must show that age actually motivated the adverse
employment action,’” and that “‘[p]ut differently, age must have played a role in the employer’s
decision-making process and had a determinative influence on the outcome’”) (quoting Van
Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir. 2010)); Mirocha v. Palos Cmty.
Hosp., 240 F. Supp. 3d 822, 837 (N.D. Ill. 2017) (explaining that “[a] plaintiff employee may
prevail on an age discrimination claim if he can show that his termination would not have
occurred ‘but for’ his employer’s age-based discriminatory motive”); Kawczynski v. F.E. Moran,
Inc., 238 F. Supp. 3d 1076, 1083 (N.D. Ill. 2017) (stating that “at summary judgment, a plaintiff
must also ‘show evidence that could support a jury verdict that age was a but-for cause of the
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employment action’”) (quoting Roberts v. Columbia Coll. Chicago, 821 F.3d 855, 865 (7th Cir.
2016)).
In Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016), the Seventh Circuit
held that a plaintiff who is facing a defendant’s motion for summary judgment in an employment
discrimination case is not required to proceed under the traditional direct method of proof or the
indirect McDonnell Douglas burden-shifting method of proof that were utilized by the courts in
the past. Ortiz, 834 F.3d at 763–66; Carson v. Lake Cty., Indiana, 865 F.3d 526, 532 (7th Cir.
2017) (applying Ortiz in ADEA case). The Seventh Circuit stated that the ultimate inquiry must
be “simply whether” when considering the evidence “as a whole,” such evidence “would permit
a reasonable factfinder to conclude that the plaintiff’s” protected characteristic “caused the . . .
discharge or other adverse employment action.” Ortiz, 834 F.3d at 764–65 (stating that “[t]he
sole question that matters” is “[w]hether a reasonable juror could conclude that” the plaintiff
“would have kept his job if he” was outside the protected class, “and everything else had
remained the same”). The Court in Ortiz, did not however, do away with the McDonnell
Douglas burden-shifting method. Id. at 766 (stating that the “decision does not concern
McDonnell Douglas or any other burden-shifting framework, no matter what it is called as a
shorthand”); David v. Bd. of Trustees of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir.
2017) (stating that Ortiz “did not alter” the McDonnell Douglas burden-shifting method);
Kawczynski, 238 F. Supp. 3d at 1083 (stating that Ortiz “did not change the burden shifting
method under” McDonnell Douglas). Instead, the McDonnell Douglas burden-shifting method
remains “‘a means of organizing, presenting, and assessing circumstantial evidence in frequently
recurring factual patterns found in discrimination cases.’” Kawczynski, 238 F. Supp. 3d at 1083
(quoting David, 846 F.3d at, 224); Nance v. NBCUniversal Media, LLC, No. 16 CV 11635, 2018
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WL 1762440, at *2 (N.D. Ill. April 12, 2018) (stating that “Ortiz made clear that its holding did
not alter the so-called McDonnell Douglas method of establishing a prima facie case of
discrimination . . . , which remains a valid but nonexclusive method of doing so”).
a. Correlation with Age
Plaintiffs argue that the longstanding United Policy is unlawful on its face because it is
connected to an employee’s age. In Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), the
Supreme Court was presented with an ADEA discrimination claim in an action where the
plaintiff asserted that he was fired to prevent his pension benefits from vesting. 507 U.S. at 606,
609. The court in Hazen held that a policy that may correlate with age is not necessarily a
violation of the ADEA. Id. at 611 (stating that “[w]hen the employer’s decision is wholly
motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes
disappears” and that “[t]his is true even if the motivating factor is correlated with age”); see also
Teufel v. N. Tr. Co., 887 F.3d 799, 803 (7th Cir. 2018) (stating that “[b]ecause salary generally
rises with age, and an extra year of credited service goes with an extra year of age, the plan’s
criteria are correlated with age—but both Kentucky Retirement Systems and Hazen Paper hold
that the[] pension criteria differ from age discrimination”); Maglieri v. Costco Wholesale Corp.,
No. 16 CV 7033, 2018 WL 1316735, at *4 (N.D. March 14, Ill. 2018) (citing Hazen for
proposition that “‘[t]he ADEA prohibits employers from relying on age as a proxy for an
employee’s [work-related] characteristics, such as productivity,’” but that “it does not bar
employers from focusing directly on work-related characteristics themselves”) (internal
quotations omitted) (quoting in part Hazen, 507 U.S. at 611). The Court in Hazen concluded that
although an employee’s pension status might correlate to the employee’s age, pension status and
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age are not the same, and that discrimination based on pension status was not the same as
discrimination based on age. 507 U.S. at 610 (stating that “[b]ecause age and years of service
are analytically distinct, an employer can take account of one while ignoring the other, and thus
it is incorrect to say that a decision based on years of service is necessarily ‘age based’”).
In the instant action, the United Policy also correlates to some extent with age because of
the limitations provided under federal law for flying the line. Discrimination based on the
inability to fly the line, however, is not the same as discrimination based on age. It is true that
unlike in Hazen, because of federal law, the United Policy is indirectly connected to a definitive
age requirement. However, flying the line is indirectly tied to a variety of other factors such as
the requisite prior service and training and medical status, as well as age. There are even
subcategories with the medical status category that are considered including vision, hearing,
mental health, and neurologic health. Age is one of many areas that are considered in
determining whether someone can fly the line. The Court in Hazen indicated that the ADA
merely “requires the employer to ignore an employee’s age. . . .” Id. The undisputed facts show
that since 1989 United has held a belief that flying the line has training value and, as in Hazen,
United can “take into account” whether an I/E has the experience of recently piloting
commercial flights “while ignoring” the age of the I/E. Id. at 611. 6 The Court in Hazen made
clear that “[i]n a disparate treatment case, liability depends on whether the protected trait (under
6
Plaintiffs also cite to Johnson v. State of N.Y., 49 F.3d 75 (2d Cir. 1995) in support of their arguments. Johnson, is
not controlling precedent and is not consistent with the Seventh Circuit’s repeated admonitions that this court does
not sit as a superpersonnel department telling companies how to run their business. In fact, the dissenting opinion in
Johnson pointed to Hazen and its admonition that “[t]he ADEA is concerned with the role that age plays in the
employer’s decision to terminate.” Id. at 81. The dissenting opinion concluded that “[t]he reason” that the plaintiff
lost the status necessary for employment “is immaterial, since it played no part in the actual decision to terminate his
employment.” Id. Similarly, in the instant action, the evidence indicates that United terminated Plaintiffs’
employment because they lost their status necessary for employment. Absent facts indicating a hidden motive on
the part of United, for a disparate treatment claim, it is immaterial whether that Plaintiffs indirectly lost their status
due to age, medical reasons, or lack of training.
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the ADEA, age) actually motivated the employer’s decision.” Id. at 610. The relevant inquiry in
this case is thus whether United was honest in regard to its given reason for its decision to
include the United Policy in the UPA or whether it was a pretext for unlawful discrimination.
United may believe the best trained I/Es are those that can fly the line. Plaintiffs cannot ask the
trier of fact at trial to speculate that United’s expressed belief masked a desired animus to
discriminate against I/Es based on age or to discriminate against I/Es based on the myriad of
other factors associated with being able to fly the line.
To the extent that Plaintiffs believe that they should be allowed to fly commercial line
flights, their dispute is not with United. Rather, their dispute is with the federal law that limits
their ability to fly the line based on age. Plaintiffs contend that they were subjected to an
“arbitrary age limit” but it was federal law, not United that subjected Plaintiffs to an age limit.
(P. Opp./SJ at 17). Nor is there any evidence that United would have taken steps to prevent
Plaintiffs from serving as I/Es if federal law had allowed them to fly the line. 7 Plaintiffs refer to
the end of their employment as a “forced retirement,” but no such retirement was forced upon
Plaintiffs by United. (P. Opp./SJ at 8-9). 8 To the extent that Plaintiffs were unable to work for
United as I/E’s, it was based on their inability to fly the line, not on their age. Any younger I/Es
who had a medical condition that precluded them from flying the line were likewise unable to
work for United. Thus, the mere fact that the United Policy is indirectly connected to age does
not mean that the United Policy is unlawful on its face.
7
The FAA age limitation for pilots is not written in stone and can change. In 2007, the age limit was raised from 60
to 65 in the Fair Treatment for Experienced Pilots Act of 2007. Emory v. United Air Lines, Inc., 720 F.3d 915, 917
(D.C. Cir. 2013).
8
The court notes that undisputed facts show that other jobs were available to Plaintiffs at United during the grace
period, but Plaintiffs did not seek other positions except for a surplus bid form for their same position. (R USOF ¶¶
85-87). The court also notes that despite the fact that Plaintiffs were not qualified to fly the line, Plaintiffs were
allowed to work during the grace period and received a significant pay increase over what they had earned with
Continental. (R USOF ¶ 59).
16
b. References to Age in Emails
Plaintiffs contend that United and ALPA representatives made references to Plaintiffs’
age in internal emails, which Plaintiffs argue shows an animus against Plaintiffs because of their
age. (P. Opp./SJ at 21). 9 Plaintiffs incorrectly assert that the emails were “internal
communications during the negotiations of the collective bargaining agreement. . . .” (P. Opp./SJ
at 21). In the instant action, Plaintiffs assert that United discriminated against them when United
agreed to include the United Policy in the UPA and the UPA became effective in December
2012. The emails identified by Plaintiffs do not involve discussions during the negotiation of the
UPA. Instead, they involve the post-merger implementation of the UPA in 2013 and thus are not
evidence of United’s intentions during the negotiations of the UPA.
Even if the emails were from the relevant time period, a close look at the references to
age in the context of the statements in the messages does not indicate any animus based on age.
While there are references in the emails to I/Es over the age of 65, the references to age are
factual statements that are not accompanied by any derogatory statements or other facts that
would suggest an animus against older I/Es. For example in one email, the sender discusses
treatment of “existing I/E’s who are over age 65.” (P. Ex. 15: UAL006218). 10 The parties
discuss in the emails matters that included how I/Es over the age of 65 could be impacted by
UPA. In another email there is a statement by a representative that “[s]ome of the guys in [his]
base are concerned that they, (over 65), will be ineligible for the early out blocking an active
9
The court notes that Plaintiffs also argue in their memorandum in support of their partial motion for summary
judgment that Plaintiffs were told by former Continental representatives that United ALPA representatives pushed
hard to remove I/Es over the age of 65. (P. Opp./SJ at 22). Plaintiffs, cite only to their statement of facts to support
such facts, but Plaintiffs’ cited statement of facts contain no such facts or supporting evidence. (P. Opp./SJ at 22).
10
Plaintiffs’ Exhibit 15 in this case is the same as Plaintiffs’ Exhibit 42 in case number 14 C 6415.
17
Pilot and also utilizing Jumpseat privileges as an inactive Pilot also bumping an active Pilot.” (P.
Ex. 15 at ALPA0004149). A discussion then follows concerning the issue at hand regarding
such employees. In another email, the parties discuss whether “LOA 18 allow[ed] the three>65
to stay at the IAH training center until the 12-months period [was] up.” (P. Ex. 15 at
UAL006231). Plaintiffs point to no sinister statements in the emails or other facts that would
suggest an unlawful motive on the part of United or ALPA.
It is also apparent that the references to age in the emails are between individuals who are
well versed in the issues at hand and reflect the significance of being over the age of 65 and its
connection to flying the line. It is clear that the references to “65” are references to the age limit
under federal law for flying the line. The mere fact that age is referenced does not alone indicate
any animus based on age. The fact that the emails consistently reference the age of 65 shows the
connection to the FAA age regulation, and there is even a specific reference in the emails to the
“FAA mandatory retirement age.” (P. Ex. 15 at ALPA0004981). Finally, although Plaintiffs
claim that the emails refer to “old guys,” a review of the many pages of emails in the exhibit
shows that there is only one reference to “old guys.” (P. Ex. 15 at ALPA0004088). Although
the reference could be considered disrespectful or insensitive, it is just one phrase among many
respectful references in the emails to the I/Es “over age 65,” the I/Es “over 65,” the “over 65
guys,” the “over 65’ers,” the “over 65 Pilots,” and the “over 65 folks.” (P. Ex. 15). Thus, the
emails pointed to by Plaintiffs fail to support their age discrimination claims because they are not
from or about the relevant time period and, even if they were, they fail to indicate any unlawful
animus based on age.
18
c. Comparator
Plaintiffs also fail to point to any comparator outside the protected class who was treated
more favorably than them. One aspect of the McDonnell Douglas burden-shifting method
referenced above is a showing by the plaintiff that “similarly situated employees outside of [his]
protected class were treated more favorably by the employer.” David v. Bd. of Trustees of Cmty.
Coll. Dist. No. 508, 846 F.3d 216, 225 (7th Cir. 2017) (quoting Andrews v. CBOCS West, Inc.,
743 F.3d 230, 234 (7th Cir. 2014)) (internal quotations omitted).
The only individual that Plaintiffs point to in response to United’s motion for summary
judgment is Tom Howard. (Plaintiffs Statement of Undisputed Material Facts in Opposition to
United’s Motion for Summary Judgment “PSOF OP” Dkt. No. 99-3 ¶ 25). Plaintiffs contend
that Howard was a younger I/E who lost his medical certificate and could not fly the line. (PSOF
OP ¶ 25). Plaintiffs claim that Howard was given a 30-month grace period before he had to
retire at age 65 and that he was thus given a longer grace period than Plaintiffs. 11 (PSOF OP ¶
25). Plaintiffs, however, cite to no admissible evidence to support such a fact. (PSOF OP ¶
25). Plaintiffs cite only to page 259 and 260 of the United Exhibit that is Rina’s deposition
transcript, but the transcript is only 253 pages long. (PSOF OP ¶ 25); (U. Ex. 111). In addition,
there is no reliable foundation indicating how Rina learned about Howard. Thus, Paragraph 25 is
stricken for failure to comply with Local Rule 56.1.
Even if Plaintiffs had pointed to admissible evidence to support Paragraph 25, the
comparison made by Plaintiffs to Howard does not indicate an unlawful disparate treatment.
11
The court notes that although United’s filings are somewhat unclear, United appears to indicate that Howard may
have received only a 12-month grace period. (R PSOF OP ¶ 25); (United Statement of Additional Facts in
Opposition to Plaintiffs’ Motion for Summary Judgment “USAF” Dkt. No. 120 ¶ 14); (United’s Combined
Memorandum of Law in Opposition to Plaintiffs’ Partial Motion for Summary Judgment and Reply in Support of its
Motion for Summary Judgment “U. Reply” Dkt. No. 117 at 21, n.17 ).
19
After the merger and the effective date of the UPA, Plaintiffs were not seeking a longer grace
period before their retirement. In the June 2013 Letter Plaintiffs asked that their seniority be
restored and the mandatory retirement be rescinded. (P. Ex. 33); (Doyle Dep. Ex. 9, 26). In
regard to not having seniority restored and mandatory retirement rescinded, Plaintiffs and
Howard were treated exactly the same. Plaintiffs have not pointed to evidence showing that they
ever raised the issue of the length of the grace period prior to retirement before bringing this
action.
United also indicates that Howard is not similarly situated to Plaintiffs because Howard
had a disability and under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., United
was required to reasonably accommodate Howard’s disability. (United Memorandum in Support
of its Motion for Summary Judgment “U. SJ” Dkt. No. 72 at 14 n.3.) Without more, Howard is
also not a proper comparator for ADEA purposes because although Plaintiffs state that Howard
was younger, Plaintiffs assert that Howard was only 30 months from his 65th birthday. (PSOF
OP ¶ 25). “The Supreme Court has observed that if an employee who is in the class protected
by the ADEA is replaced by someone who is not ‘substantially younger’ (i.e., ten years or so), no
inference of age discrimination is generally appropriate.” Runyon v. Applied Extrusion Techs.,
Inc., 619 F.3d 735, 740 (7th Cir. 2010) (citing O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308, 312–13 (1996)). Plaintiffs have not shown that Howard was substantially younger
than them, or that United considered the difference significant. Thus, Plaintiffs have failed to
properly identify a comparator outside the protected class who was treated more favorably.
20
d. Furloughs
Plaintiffs also theorize that another reason United may have engaged in age
discrimination is to find spots for furloughed pilots. (Plaintiffs Statement of Undisputed Material
Facts in Support of their Motion for Partial Summary Judgment “PSOF” Dkt. No. 99-3 ¶ 14). It
is undisputed that at the relevant time there were approximately 1,400 pilots on furlough. (PSOF
¶ 14). The impact that Plaintiffs’ three positions would have had on such a number would have
been de minimis. Plaintiffs fail to point to evidence to show that the decision to adopt the United
Policy was in any way connected to the need to find spots for pilots on furlough and it would be
nothing more than speculation to conclude that United violated the ADEA in order to fill three of
those 1,400 spots.
e. Adoption of Continental’s AQP
In an effort to show that United did not initially plan to implement the United Policy,
Plaintiffs point out that United initially adopted the AQP of Continental after the merger. (P.
Opp./SJ at 22-23). United admits that at the time of the merger Continental’s AQP was adopted.
(USOF ¶ 38). United, however, also provides evidence showing that it was always the
understanding of the parties at the time of the merger that Continental’s AQP was adopted
subject to a transition plan. (USOF ¶ 38). Plaintiffs have not cited any evidence that would
genuinely call such facts into question. (R USOF ¶¶ 37-39). The undisputed facts show that
during the transitional period, United began to implement the AQP Integration Plan and that, as
anticipated at the time of the merger, the AQP was eventually officially amended with the FAA
to include the United Policy. Thus, the fact that United may have initially agreed to the
21
Continental AQP is merely a red herring and is not relevant in assessing whether United had an
unlawful animus against Plaintiffs because of their age.
f. Wisdom of the United Policy
Plaintiffs also present arguments that focus upon the wisdom of the United Policy.
Plaintiffs tout their experience and qualifications and argue that they are better qualified than
other younger I/Es. While Plaintiffs are entitled to their opinions, ALPA and United are likewise
entitled to the opinion that an I/E who could fly the line was better qualified. Plaintiffs have not
shown that any of the younger I/Es were unqualified for the position or that Plaintiffs were
clearly more qualified.
Plaintiffs challenge the opinion of United and its expert witness Captain Jameel F. Joseph
that flying the line cannot be replicated in a simulator or by sitting in a jump seat and observing
pilots. Joseph concludes that “Instructors and Evaluators gain relevant experience and
knowledge from recently operating an aircraft in revenue service that cannot be gained from
operating airplane simulators or from observing line operations from the jumpseat.” (P. Ex. 22 at
17). Joseph indicates in his declaration facts to support his conclusion such as the following:
Flight operations, by definition, begin well in advance of the line pilot entering
the cockpit, and are fluid and dynamic in nature, with each leg of each trip being
distinctly different. The ability to dispatch a flight with known mechanical
deficiencies, for instance, will determine operational restrictions or unique
procedures, with very little time for the flight crew to make critical decisions and
fully comprehend the impact of these mechanical deficiencies and there
operational consequences. This pressure cannot be simulated and cannot be
shared through observation. Only I/Es with recent line-operational experience,
under these circumstances, can relate to, identify, adjust, and translate these
pressures and experiences into actual training and evaluation – such exposure
cannot be simulated.
22
(Joseph Decl. ¶ 8). Joseph also states that “[e]ach airport has unique local procedure[s] for
ground aircraft movement, and often construction activities will directly impact critical ground
movement,” and “[a]ctual, not simulated, interaction with these conditions by the I/E cadre will
not only familiarize them with the unique set of actual operational circumstances but also
provide first-hand experience with the challenges the line pilots may experience.” (Joseph Decl.
¶ 8). Joseph also explains how familiarity and actual experience dealing with unique factors in
take-off/departure/climb procedures, en route procedures, and decent/arrival/landing procedures
make actual line experience superior to any experience in a simulator or viewing from a jump
seat. (Joseph Decl. ¶ 8). Plaintiffs clearly disagree with Joseph’s conclusions and believe that
the same experience can be gained through a simulator or by sitting in a jump seat. Plaintiffs
have not pointed to evidence that shows that training in a simulator which seeks to replicate as
best as possible the actual flight experience or sitting in a jump seat can provide the exact same
experience as actually piloting a commercial flight. Plaintiffs are asking this court to find that
their proposed training is the equivalent to flying the line. Absent a showing that the United
Policy was a pretext for age discrimination, however, this court in not a proper venue to litigate
the wisdom of United’s business decisions.
Plaintiffs argue that there is no empirical evidence that shows that the United Policy
makes better-trained I/Es. United, however, is not required to provide studies and other
empirical evidence to support its policy. The United Policy is not on trial in this case. The issue
before the court is whether United used the policy as a pretext to discriminate based upon age.
Plaintiffs contend that they have evidence that the newest simulators are very good at replicating
the “feel of the aircraft” and that actually flying the line is not necessary. (PSOF OP ¶ 3). Even
if Plaintiffs could point to sufficient evidence to show that they are right and United was
23
mistaken in believing that the United Policy was superior to other training programs that rely
upon simulators, Plaintiffs cannot prevail. See Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 696
(7th Cir. 2006) (stating that “[p]retext is not necessarily established merely when the plaintiff
demonstrates the employer’s reason was mistaken”). It is not role of this court to interfere with
United’s training policies unless such policies are unlawful or unsafe. 12 See Stockwell v. City of
Harvey, 597 F.3d 895, 902 (7th Cir. 2010) (stating that “courts are not superpersonnel
department[s]” charged with determining best business practices”) (internal quotations omitted)
(quoting Blise v. Antaramian, 409 F.3d 861, 867 (7th Cir. 2005)).
Plaintiffs also contend that federal law does not require I/E’s to fly the line and that other
airlines employ NLQFIs. Such facts are irrelevant. United is not required to follow the
minimum under federal law. Nor is United required to follow training practices simply because
its competitors follow them. If United’s training is inferior to other airlines as Plaintiffs claim,
then the free market will reward other more forward-thinking airlines.
In Schaffner v. Glencoe Park Dist., 256 F.3d 616 (7th Cir. 2001), the Seventh Circuit was
presented with similar facts as in the instant action. In that case, the plaintiff applied for a
position that required an applicant to have one of several degrees such as Education. Id. at 621.
The plaintiff argued that the qualification was not reasonable and that the employer should have
considered the plaintiff’s experience to be the equivalent as the required degree. Id. The Court
concluded that it did not need to “decide whether it is reasonable for an employer to place value
on the actual receipt of a particular degree, irrespective of the applicant’s experience,” and the
Court declined to “presume to mandate that the [employer] equate [the plaintiff’s] teaching
experience with an actual degree in Education.” Id. The Court then proceeded to indicate that
12
Plaintiffs have not pointed to any evidence that shows that the United Policy, which has been in place since 1989,
has created any material risks to the safety of operations in any flights.
24
“[w]hat the qualifications for a position are, even if those qualifications change, is a business
decision, one courts should not interfere with” and that the Court does not “tell employers what
the requirements for a job must be.” Id. (internal quotations omitted) (quoting Gorence v. Eagle
Food Ctrs., 242 F.3d 759, 765 (7th Cir. 2001)). Similarly in the instant action, Plaintiffs are
attempting to get this court to mandate that United find that training in a simulator or sitting in a
jump seat is the equivalent to flying the line. As in Schaffner, this court will likewise refrain
from telling an employer how to operate its business in regard to conduct that does not run afoul
of the law.
The Seventh Circuit has made it clear that in employment discrimination cases, the court
does “not act as a ‘superpersonnel department.’” Milligan-Grimstad v. Stanley, 877 F.3d 705,
710 (7th Cir. 2017); Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 883 (7th Cir.
2016) (stating that the “record d[id] not suggest that [the defendant’s] rationale was insincere or
pretextual, and [the Court does] not sit as a superpersonnel department[ ] that judges the wisdom
of [the defendant’s] decisions”) (internal quotations omitted) (quoting Stockwell v. City of
Harvey, 597 F.3d 895, 902 (7th Cir. 2010)); Ripberger v. Corizon, Inc., 773 F.3d 871, 878 (7th
Cir. 2014) (stating that “[a]s [the Court has] stated repeatedly, it is not [the Court’s] province to
sit as a super-personnel department evaluating the wisdom of an employer’s staffing decisions”);
Baron v. City of Highland Park, 195 F.3d 333, 341 (7th Cir. 1999) (stating that “as [the Court
has] noted on numerous occasions, th[e] Court does not sit as a superpersonnel department that
reexamines an entity’s business decisions”) (internal quotations omitted) (quoting Lindemann v.
Mobil Oil Corp., 141 F.3d 290, 300 (7th Cir. 1998)). That is exactly what Plaintiffs are asking
the court to do in this case.
25
As indicated above, Plaintiffs can utilize the McDonnell Douglas burden-shifting method
to establish a prima facie case of discrimination. If a defendant offers a legitimate nondiscriminatory reason for its actions, the plaintiffs must show that the reason is a pretext for
unlawful discrimination. Bates v. City of Chicago, 726 F.3d 951, 956 (7th Cir. 2013). As part of
that method, Plaintiffs must establish that ALPA’s legitimate non-discriminatory reason was a
pretext for unlawful discrimination. Id. The Seventh Circuit has indicated time and time again
that “[t]he focus of a pretext inquiry is whether the employer’s stated reason was honest, not
whether it was accurate, wise, or well-considered.” Id. (internal quotations omitted) (quoting
Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000)); see also Teruggi v. CIT Grp./Capital
Fin., Inc., 709 F.3d 654, 661 (7th Cir. 2013) (stating that “[a]n unwise employment decision does
not automatically rise to the level of pretext; rather, a party establishes pretext with evidence that
the employer’s stated reason or the employment decision ‘was a lie—not just an error, oddity, or
oversight’”) (quoting Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 298 (7th Cir. 2010));
Barricks v. Eli Lilly & Co., 481 F.3d 556, 560 (7th Cir. 2007) (stating that “[t]he focus of a
pretext inquiry is whether the employer’s reason is honest, not whether it is accurate or wise”).
The Seventh Circuit has stated that in an ADEA case, the court must remain focused on whether
there is discrimination based on age and be mindful that it is not the court’s “role to question the
wisdom of a company’s decisions on how to run its business, only to assure that such decisions
are not intended to provide cover for illegal discrimination.” Johal v. Little Lady Foods, Inc.,
434 F.3d 943, 946–47 (7th Cir. 2006)).
Although Plaintiffs criticize United’s belief that flying the line helps an I/E to become
better at his or her job, Plaintiffs have not shown that United’s given reason is other than a
legitimate non-discriminatory reason for its actions. The court acknowledges that in certain
26
situations where actions by a company are extremely unwise from a business standpoint, such
conduct could be suspicious, and could be circumstantial evidence that might be used to support
an ADEA claim. In this case, however, Plaintiffs have fallen far short of pointing to evidence to
support such a theory. 13 Joseph provides ample details concerning the rationale underlying the
United Policy. The fact that the policy has been in place since 1989 further suggests its
justifiable basis and renders United’s decision to include it in the UPA less suspicious.
Plaintiffs argue that whether United’s decision to adopt its long standing policy in the
UPA was “honestly arrived at is a question of fact.” (P. Opp./SJ at 11). While that is true,
Plaintiffs must also do more than rely on their allegations and must point to sufficient evidence
for a reasonable trier of fact to do more than speculate that United’s decision to continue a
longstanding policy concealed some hidden animus based on age. See Grant v. Trustees of
Indiana Univ., 870 F.3d 562, 568 (7th Cir. 2017) (stating that “[a]s the put up or shut up moment
in a lawsuit, summary judgment requires a non-moving party to respond to the moving party’s
properly-supported motion by identifying specific, admissible evidence showing that there is a
genuine dispute of material fact for trial”) (internal quotations omitted) (quoting Harney v.
praSpeedway SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008)). Plaintiffs have failed
to point to sufficient evidence for a reasonable trier of fact to find in their favor.
13
The Seventh Circuit has stated that “the more objectively reasonable a belief is, the more likely it will seem that
the belief was honestly held,” but “[a]n inquiry into pretext requires that [the Court] evaluate the honesty of the
employer's explanation, rather than its validity or reasonableness.” Simpson v. Beaver Dam Cmty. Hosps., Inc., 780
F.3d 784, 795 (7th Cir. 2015) (internal quotations omitted) (quoting Gordon v. United Airlines, Inc., 246 F.3d 878,
889 (7th Cir. 2001) and Cung Hnin v. TOA (USA), LLC, 751 F.3d 499, 506 (7th Cir. 2014)). The Court further
explained that “[t]he question is not whether the employer's stated reason was inaccurate or unfair, but whether the
employer honestly believed the reasons it has offered to explain [its decision.]” Id. (internal quotations omitted). It
is important to note that in the facts of this case, the policy in question that is connected to age is logically connected
to the I/E position. The policy simply requires that I/Es have current real life experience in the precise piloting tasks
that they are expected to teach pilots. Such a requirement clearly falls within the broad range of reasonableness.
27
Finally, as stated above, it is important to note that in order to succeed on their ADEA
claims, Plaintiffs must show more than it is possible that age was a consideration in United’s
decision making process. See Gross, 557 U.S. at 174 (stating that “[u]nlike Title VII, the
ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age
was simply a motivating factor”). Plaintiffs must show that age “‘had a determinative influence
on the outcome.’” Mullin, 732 F.3d at 776 (quoting Van Antwerp, 627 F.3d at 297). Based on
the above, even when considering the evidence in its totality and viewing it in a manner most
favorable to Plaintiffs, no reasonable fact finder could find in Plaintiffs’ favor on the ADEA
disparate treatment claims or state law age discrimination claims. Therefore, United’s motion
for summary judgment on that ADEA disparate treatment claims and state law age
discrimination claims is granted and Plaintiffs’ partial motion for summary judgment on such
claims is denied.
2. ADEA Disparate Impact Claims
The parties contend that they have pointed to sufficient evidence to prevail as a matter of
law on the ADEA disparate impact claims. A plaintiff pursuing an ADEA disparate impact
claim must establish a prima facie case by showing that a “specific, facially neutral employment
practice caused a significantly disproportionate adverse impact based on age” and “proffer
statistical evidence that the policy caused a significant age-based disparity . . . .” Carson v. Lake
Cty., Indiana, 865 F.3d 526, 536 (7th Cir. 2017) (internal quotations omitted) (quoting Karlo v.
Pittsburgh Glass Works, LLC, 849 F.3d 61, 68 (3d Cir. 2017)); Filipek v. Oakton Cmty. Coll.,
No. 16 CV 2902, 2018 WL 1064577, at *6 (N.D. Ill. Feb. 27, 2018) (stating that a plaintiff
bringing an ADEA disparate impact claim “must provide statistical evidence of a significant age28
based disparity and must also isolate and identify the specific employment practice that she
contends is responsible for that disparity”); Spriesch v. City of Chicago, No. 17 CV 1952, 2017
WL 4864913, at *5 (N.D. Ill. Oct. 26, 2017) (stating that “[a] disparate impact theory of
discrimination requires the plaintiff to put forth evidence (facts or statistics) demonstrating that
the challenged employment practice has a disproportionately negative effect upon members of
the protected class”) (internal quotations omitted) (quoting Anfeldt v. United Parcel Serv., Inc.,
No. 15 CV 10401, 2017 WL 839486, at *2 (N.D. Ill. March 3, 2017)); Aberman v. Bd. of Educ.
of City of Chicago, 242 F. Supp. 3d 672, 685 (N.D. Ill. 2017) (stating that a plaintiff must
identify the specific employment practice, . . . and establish causation by offering statistical
correlation evidence demonstrating that a specified employment practice of the defendant has a
disproportionately negative effect on members of the plaintiff’s protected class”) (internal
quotations omitted) (quoting Noreuil v. Peabody Coal Co., 96 F.3d 254, 258 (7th Cir. 1996)).
In response to United’s motion, Plaintiffs point to no statistical evidence or facts to detail
the disparate impact and instead provide one sentence stating that the percentage of older
workers impacted “is 100%,” and Plaintiffs provide a conclusory statement that the percentage is
“about as disproportionate as statistics will allow.” (P. Opp./SJ at 11). Plaintiffs must offer
more than a one-sentence conclusory statement to meet their burden at the summary judgment
stage. Nor is the statistical analysis as obvious as Plaintiffs propose. The United Policy requires
that I/Es be able to fly the line. There could, for example, be employees impacted by the policy
that have medical problems and cannot fly the line. A statistical analysis would need to be
conducted for all such potential groups affected by the United Policy and not affected by the
United Policy to show that the policy caused a significant age-based disparity. Plaintiffs present
no such analysis. In the portion of Plaintiffs’ own memorandum devoted to the support of their
29
partial motion for summary judgment, Plaintiffs present an analysis only for the disparate
treatment claims and do not even reference the disparate impact claims. Therefore, United’s
motion for summary judgment on the ADEA disparate impact claims is granted and Plaintiffs’
partial motion for summary judgment on such claims is denied. 14
CONCLUSION
For the reasons set forth above, United’s motion for summary judgment [70] is granted
and Plaintiffs’ partial motion for summary judgment [109] is denied. Civil case terminated.
Date: 6/4/18
Jorge L. Alonso
United States District Judge
14
Since Plaintiffs have failed to point to sufficient evidence to support a prima facie case for the ADEA claims, the
court need not address United’s bona fide occupational qualification “BFOQ” affirmative defense or reasonable
factor other than age affirmative defense. The Court also notes that Plaintiffs cite to W. Air Lines, Inc. v. Criswell,
472 U.S. 400 (1985). (P. Opp./SJ at 13). The issue before the court in Criswell was “whether the jury was properly
instructed on the elements of the BFOQ defense.” Id. Since the court did not reach the BFOQ defense, Criswell is
not applicable.
30
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