Bader et al v. Airline Pilots Association, International
Filing
136
MEMORANDUM Opinion and Order. Defendant ALPA's motion for summary judgment 73 is granted and Plaintiffs' partial motion for summary judgment 114 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.
AIR LINE PILOTS ASSOCIATION,
INTERNATIONAL,
Defendant.
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No. 14 C 6415
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
Plaintiffs Douglas Bader, Charles Doyle, and Ralph Rina have brought this action against
their labor union, Defendant Air Line Pilots Association, International (“ALPA”). Plaintiffs
bring age discrimination claims under the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621 et seq., and breach of duty of fair representation claims under the
under the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151 et seq. Before the court is ALPA’s
motion for summary judgment and Plaintiffs’ partial motion for summary judgment as to
liability. 1 For the reasons set forth below, ALPA’s motion for summary judgment [73] is
granted, and Plaintiffs’ partial motion for summary judgment [114] is denied.
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.
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
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 Airlines, Inc. (“United”) entered into a
merger with Continental. 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. After the merger, Plaintiffs could not serve as I/Es for United
because 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 transition 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 delivered a letter (“June 2013 Letter”) to the Continental ALPA
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
Master Executive Council (“Council”) requesting that their seniority be restored and that their
retirement date be rescinded. The Council responded that it did not have unilateral authority to
strike or modify provisions of the UPA. Plaintiffs contend that they did 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 7, 2014, Plaintiffs filed the instant action in the United States District Court for
the District of Columbia and included in their complaint ADEA discrimination claims (Count I),
breach of contract claims (Count II), breach of the duty of fair representation (“DFR”) claims
brought under the RLA (Count III), and tortious interference with a business expectancy claims
(Count IV). On August 8, 2014, this action was transferred to this district. On November 14,
2014, ALPA moved for a judgment on the pleadings and on January 16, 2015, this case was
transferred to the undersigned judge. On July 9, 2015, the court granted the motion for judgment
on the pleadings in regard to the state law claims in Counts II and IV, and denied the motion in
regard to the ADEA claims and DFR claims in Counts I and III. ALPA has filed a motion for
summary judgment on the remaining claims and Plaintiffs have filed a partial motion for
summary judgment as to liability. 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
4
This action is related to Bader v. United Airlines, Inc. (14 C 2589).
3
Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014). “Summary judgment should be
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. Local Rule 56.1
ALPA asserts that Plaintiffs have repeatedly failed to comply with Local Rule 56.1. 5
ALPA is correct that Plaintiffs have failed to comply with Local Rule 56.1 by neglecting to cite
to the record to support facts and by presenting citations that do not support the asserted facts.
5
The court notes that although Plaintiffs filed their statement of material fact s (Dkt. No. 104-3), that filing was
withdrawn from the docket. Plaintiffs subsequently filed a new memorandum in opposition to ALPA’s motion for
summary judgment and in support of their partial motion for summary judgment, but Plaintiffs failed to refile their
statement of material facts. ALPA nevertheless responded to Plaintiffs’ prior filing, and in the interest of fairness,
the court considers it. Plaintiffs are directed to file their statements of material facts on the docket and in accordance
with the confidentiality order.
4
(Plaintiffs Statement of Undisputed Material Facts in Support of their Motion for Partial
Summary Judgment “PSOF” Dkt. No. 104-3); (Plaintiffs Statement of Undisputed Material Facts
in Opposition to United’s Motion for Summary Judgment “PSOF OP” Dkt. No. 104-3). A
review of the parties’ filings, however, shows that neither side has followed Local Rule 56.1.
For example, instead of admitting or denying facts as envisioned by Local Rule 56.1, ALPA
provides an endless series of objections, arguments, and partial admissions. ALPA continually
objects to facts as irrelevant even though they fall within the broad scope of relevancy and ALPA
fails to even proffer an explanation as to why the facts would be irrelevant. (R PSOF OP ¶ 113, 15-22); (R PSOF ¶¶ 6-21). ALPA also objects to facts as ambiguous instead of simply
admitting or denying facts. (R PSOF OP ¶¶ 5-7, 13, 15); (R PSOF ¶ 18). Instead of clearly
admitting or denying facts, ALPA also continually admits facts “subject to” objections and even
denies facts “subject to” objections. (R PSOF OP ¶¶ 1-7, 9-12, 15-20, 22, 24); (R PSOF ¶¶ 1,
6-21). ALPA also accuses Plaintiffs of misstating the cited evidence, but ALPA fails at times to
explain how the facts are misstated. (R PSOF OP ¶ 6); (R PSOF ¶ 10).
ALPA also fails to cite to the record or evidence when necessary to support objections.
For example, in response to Plaintiffs’ statement of material fact Paragraph 10 in support of their
partial motion for summary judgment, ALPA responds: “ALPA objects to this paragraph
because it is irrelevant, lacks foundation, misstates evidence and its argumentative. Subject to
these objections, ALPA admits the Fred Abbot testified . . ..” (R PSOF ¶ 10). ALPA does not
explain why the facts would be irrelevant, or why they misstate the evidence, or cite to the record
or any evidence. Nor does ALPA even specify what it admits that Abbot testified, providing
only a four-dot ellipse at the end of its response. In addition, although ALPA complains that
certain paragraphs of Plaintiffs’ statements of facts are argumentative, (R PSOF ¶ 10), ALPA
5
provides its own argumentative responses. For example, in Paragraph 14 of Plaintiffs’ statement
of material facts in support of their partial motion for summary judgment, Plaintiffs assert that
internal ALPA emails consistently referred to “age 65 instructors.” (PSOF ¶ 14). Instead of
simply admitting that fact, ALPA first objects, stating that facts are irrelevant. Such facts,
however, are not irrelevant in this ADEA case. ALPA then indicates that “[s]ubject to [those]
objections” it denies the facts and argues that the “[r]eferences to ‘over 65’ pilots were shorthand
for pilots who had reached the federally mandated retirement age.” (PSOF ¶ 14). Such evasive
responses defeat the purpose of Local Rule 56.1. ALPA’s lengthy and often unwarranted
objections to virtually all of Plaintiffs’ facts undermine the utility of Local Rule 56.1 and the
clarity in the record that the rule is intended to promote. See Stevo v. Frasor, 662 F.3d 880, 88687 (7th Cir. 2011) (explaining that “[b]ecause of the high volume of summary judgment motions
and the benefits of clear presentation of relevant evidence and law, [the Court has] repeatedly
held that district judges are entitled to insist on strict compliance with local rules designed to
promote the clarity of summary judgment filings”). Both sides have thus substantially failed to
comply with Local Rule 56.1.
II. ADEA Claims (Count I)
ALPA and Plaintiffs move for summary judgment on the ADEA claims.
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
6
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
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
7
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
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”).
ALPA argues that since there is no direct evidence of discrimination, Plaintiffs are
required to utilize the McDonnell-Douglas burden-shifting method. (ALPA Memorandum in
Support of its Motion for Summary Judgment “A. SJ” Dkt. No. 74 at 6 n.3). As indicated above,
8
however, Ortiz made clear that a plaintiff is not required to use the burden-shifting method. The
court notes that even before Ortiz, Plaintiffs would not have been required to proceed under the
burden-shifting method and could have chosen to proceed under the direct method of proof. 6
Plaintiffs argue that they can prevail under the general Ortiz standard and under the McDonnellDouglas burden-shifting method. (Plaintiffs’ Memorandum of Law in Opposition to
Defendants’ Motion for Summary Judgment and in Support of Plaintiffs’ Partial Motion for
Summary Judgment “P. Opp./SJ” Dkt. No. 114 at 6, 8).
A. Connection to Safety
Plaintiffs argue that requiring I/Es to fly the line does not improve operational safety.
Plaintiffs overstate what ALPA must show as justification its actions. Plaintiffs contend that if
NLQFIs presented legitimate safety concerns, since Plaintiffs were allowed to work for 12
months after the UPA became effective, ALPA would have been “complicit in allowing
unqualified instructors/evaluators to perform the critical function of training and evaluating
pilots flying revenue flights.” (P. Opp./SJ at 2). Plaintiffs also argue that ALPA lacks sufficient
evidence to show that “flying the line is somehow a critical component of performing the
functions of an instructor/evaluator.” (P. Opp./SJ at 21). ALPA has not, however, claimed that
the United Policy was “critical” to ensuring safety. ALPA has consistently explained that the
6
The direct method of proof which allows the introduction of direct and circumstantial evidence has also
sometimes been referred to as the direct-evidence method. See, e.g., Fleishman v. Cont'l Cas. Co., 698 F.3d 598,
603 (7th Cir. 2012); Hutt v. AbbVie Prod. LLC, 757 F.3d 687, 691 (7th Cir. 2014) (explaining that “[a] plaintiff may
prove employment discrimination under the ADEA . . . using either the direct method or indirect method”).
Plaintiffs argue that they are not required to proceed under the McDonnell Douglas burden shifting method because
they present “direct evidence” of discrimination. (P. Opp/SJ at 6). Direct evidence is “[e]vidence that is based on
personal knowledge or observation and that if true, proves a fact, without inference or presumption.” Black’s Law
Dictionary 577 (7th ed. 1999). Plaintiffs point to no such evidence in their filings.
9
United Policy was something that deeply engrained in the ethos of United’s training department
since at least 1989. (ALPA Statement of Undisputed Material Facts in Support of its Motion for
Summary Judgment “ASOF” Dkt. No. 75 ¶6). ALPA bears no burden of showing that flying the
line is a “critical component” of the training or that United’s policy was necessary to adequately
protect the safety of passengers. The mere fact that ALPA may have believed that following the
United Policy would improve safety does not mean that failing to follow such a policy
unreasonably placed passengers at risk or that United’s operations during the twelve month
grace-period were unsafe. If ALPA believed that flying the line would provide better training to
I/Es and agreed to the UPA for reasons other than age, ALPA did not violate the ADEA. The
focus of this court must remain on the claims at issue in this case, which involve whether there
was unlawful discrimination based upon Plaintiffs’ age, not which policy promotes better
operational safety.
B. 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
10
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. Ill. March 14, 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
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
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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. 7 The Court in Hazen made
clear that “[i]n a disparate treatment case, liability depends on whether the protected trait (under
the ADEA, age) actually motivated the employer’s decision.” Id. at 610. The relevant inquiry in
this case is thus whether ALPA 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.
ALPA 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 ALPA’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 ALPA. 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 ALPA that subjected Plaintiffs to an age limit.
Nor is there any evidence that United would have taken steps to prevent Plaintiffs from serving
7
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 ALPA, for a disparate treatment claim, it is immaterial whether Plaintiffs indirectly lost their status due
to age, medical reasons, or lack of training.
12
as I/Es if federal law had allowed them to fly the line. 8 Plaintiffs claim that they were “forced
into retirement,” but no such retirement was forced upon Plaintiffs by ALPA. (P. Opp./SJ at 2).
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.
C. ALPA’s Involvement in Adoption of United Policy in UPA
Plaintiffs contend it was ALPA that was responsible for the adoption of United Policy in
the UPA and that United did not want to adopt the United Policy. Plaintiffs claim that it was
ALPA who wanted to get rid of the I/Es over the age of 65 and that United actually wanted to
keep them, but caved into ALPA’s demand. It would appear strange if United desired to forego
its own longstanding policy and that it needed to be persuaded by ALPA, Plaintiffs’
representative, to adopt the United Policy. Plaintiffs fail, however, to present sufficient
admissible evidence to support such a conclusion and a review of the evidence does not indicate
suspicious conduct on the part of ALPA.
1. Statements Overheard by Abbott
Plaintiffs contend in Paragraph 8 of their Statement of Facts in Opposition to United’s
Motion for Summary Judgment that “United ALPA pilots pre-merger were overheard saying that
8
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).
13
they wanted to eliminate the provision for non-line qualified pilots that was in the Continental
collective bargaining agreement.” (PSOF OP ¶ 8). Plaintiffs’ assertion is based on Frederick
Abbott’s deposition testimony that he heard such statements from “line pilots and other persons
[he] might have run into.” (PSOF OP ¶ 8); (Abbott Dep. at 63). Abbott admitted that no such
statements were made during the negotiations of the UPA and that he could not recall even one
name of the unidentified persons who he might have run into and made such statements to him.
(Abbott Dep. at 63). Also absent from the record is any detail as to when the statements were
made or what exactly was communicated to Abbott. Such evidence would not be admissible at
trial and is not properly considered at the summary judgment stage. See Grant v. Trustees of
Indiana Univ., 870 F.3d 562, 568 (7th Cir. 2017) (indicating that the plaintiff can only rely on
admissible evidence at the summary judgment stage).
2. Privileged Luby Communication
Plaintiffs also present an affidavit from John Perry in support of their assertion that
ALPA had been interested in eliminating older I/Es. (PSOF ¶ 13). Perry indicates he has no
personal knowledge of ALPA’s intentions, but he has attached an apparently privileged email
sent to Tom Donaldson by ALPA’s counsel Art Luby (P. Ex. 41). There is no date on the email,
and Perry does not even specify the year that he believes that the email was sent to Donaldson.
Perry merely indicates that he believes that Luby represented ALPA in 2007 and up to 2013. (P
Ex. 41). The email is thus inadmissible based on hearsay and lacks a proper foundation, and is
not properly relied upon at the summary judgment stage.
The subject matter in the email is also not the same that is presented in the instant action.
In the email, Luby discussed the decision by the FAA that raised the age for piloting commercial
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flights from 60 to 65 and addressed whether to impose limitations on instructors who might
become requalified based on the new law. (P. Ex. 41). In the email, Luby counseled ALPA not
to place any restrictions on I/Es and the record indicates that ALPA followed Luby’s advice.
Such evidence does not indicate an unlawful animus on the part of ALPA.
3. Initial Proposals By United Negotiators and United’s Concession to ALPA’s Demands
Plaintiffs also claim that United “negotiators initially proposed keeping the Continental
practice of no age limit for instructor/evaluators.” (PSOF ¶ 9). In support of that statement
Plaintiffs cite only to Plaintiffs’ Exhibit 38. As ALPA correctly points out, Plaintiffs’ Exhibit 38
does not mention initial proposals of United negotiators or indicate that they proposed that
NLQFIs be allowed to work under the UPA. (P. Ex. 38); (R PSOF ¶ 9). Plaintiffs also contend
that United ultimately conceded to ALPA’s demand that the United Policy be included in UPA
in exchange for concessions from ALPA. (PSOF ¶ 11). The only evidence cited by Plaintiffs to
support their claim is Plaintiffs’ Exhibit 39. A review of Exhibit 39 reveals no such facts that
would support Plaintiffs claim. In fact, there are statements in Exhibit 39 that indicate that the
parties had already agreed at a prior juncture that the United Policy would be included in the
UPA. (P. Ex. 39). Plaintiffs’ allegations as to such intrigue on the part of ALPA are nothing
more than unsupported speculation, which is not sufficient to carry the day at the summary
judgment stage. Grant, 870 F.3d at 568.
4. Statements Made by Maddox and Klumb
Plaintiffs contend that a former Continental official Troy Maddox told Rina “that the
ALPA people from United are adamant that nobody over age 65 be on the property and that he
15
would have his seniority stripped from him and forced to retire in 12 months.” (PSOF OP ¶ 8).
Plaintiffs also contend that ALPA representative Bob Klumb told Bader “that United ALPA was
adamant that nobody over age 65 remain on the seniority list or working at United.” (PSOF OP
¶ 8). Even if Plaintiffs were able to convince a trier of fact to believe that such statements were
made, the statements only make clear that it was the ALPA representatives connected to United
that were promoting the United Policy. It was those same ALPA representatives connected to
United and its longstanding policy that had supported the policy before the merger. The alleged
statements by Maddox and Klumb also fail to identify the sources of the information and are
inadmissible hearsay. Grant, 870 F.3d at 568. Thus, Plaintiffs have failed to point to sufficient
evidence regarding ALPA involvement in the adoption of the United Policy in the UPA. ALPA
represented all I/Es, not just the three Plaintiffs, and even though the United Policy was not
beneficial to Plaintiffs, ALPA could have honestly believed that it promoted the general welfare
of its members.
D. 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). Plaintiffs incorrectly assert that the emails were “internal
communications during the negotiation period.” (P. Opp./SJ at 21). In this case, Plaintiffs assert
that ALPA discriminated against them when ALPA 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
16
implementation of the UPA in 2013 and thus are not evidence of ALPA’s intentions during the
negotiations of the UPA.
Even if the emails were from the relevant time period, a close look of 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. 42: UAL006218). 9 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
Pilot and also utilizing Jumpseat privileges as an inactive Pilot also bumping and active Pilot.”
(P. Ex. 42 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. 42 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 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 Federal Aviation Administration (“FAA”) age regulation, and there is even a
9
Plaintiffs’ Exhibit 42 in this case is the same as Plaintiffs’ Exhibit 15 in case number 14 C 2589.
17
specific reference in the emails to the “FAA mandatory retirement age.” (P. Ex. 42 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. 42 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. 42). 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.
E. ALPA Report to Congress
Plaintiffs contend that ALPA itself has been critical of the United Policy in a report to
Congress and has been critical of the United training program that allowed for learning mistakes
to be made in the cockpit of revenue flights. (P. Opp./SJ at 2). The evidence cited by Plaintiffs
in support, however, does not match up with Plaintiffs’ argument. Plaintiffs cite to a report filed
by ALPA to Congress in November 2011 (“ALPA Report”). (P. Opp./SJ at 2); (PSOF OP ¶ 6);
(P. Ex. 14). Plaintiffs cite to page 8, but it is not clear whether they are referencing page 8 of
Plaintiffs’ Exhibit 14 or page 8 of the ALPA Report. (PSOF OP ¶ 6). Neither page contains
facts to support Plaintiffs’ statement. Page 8 of Plaintiffs’ Exhibit 14 does not involve learning
mistakes made in the cockpit. (P. Ex. 14 at 8). Page 8 of the ALPA Report does address
mistakes that occur in the cockpit of revenue flights. (P. Ex. 14 at 14). ALPA is critical of
certain aspects of United’s training of pilots, not training of I/Es. (P. Ex. 14 at 14). In addition,
although ALPA criticizes United for allowing “learning (and mistake making) to occur in the
18
cockpit on revenue flights,” ALPA did not conclude that all training should be performed in a
simulator as Plaintiffs suggest. ALPA indicated that the potential mistakes during revenue
flights were possible because the pilots were not given an opportunity ahead of time to review
the quick reference handbook before the training on the flights. (P. Ex. 14 at 13-14). It was the
lack of an ability to adequately prepare before the training sessions that ALPA concluded cause
potential problems. (P. Ex. 14 at 13-14). The report did not conclude, as Plaintiffs suggest that
no training should be conducted on commercial flights. In regard to the ALPA Report’s
reference to the use of simulators, neither United nor ALPA has ever disputed the importance of
training in simulators. The United Policy merely adds the flying the line requirement to the
training regimen. Thus, Plaintiffs have failed to show that ALPA is acting in this case in a
manner inconsistent with the ALPA Report.
F. Comparator
Plaintiffs also fail to point to any comparator outside the protected class who was treated
more favorably than them. The only individual that Plaintiffs point to in response to ALPA’s
motion for summary judgment is Tom Howard. (PSOF OP ¶ 21). Plaintiffs contend that
Howard was a younger I/E who lost his medical certificate and could not fly the line. (PSOF OP
¶ 21). 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. 10 (PSOF OP ¶ 21).
Plaintiffs, however, cite no admissible evidence to support such a fact. (PSOF OP ¶ 21).
Plaintiffs cite only to page 259 and 260 of the United Exhibit that is Rina’s deposition transcript,
10
The court notes that in 14 C 2589 although United’s filings are somewhat unclear, United appears to indicate that
Howard received only a 12-month grace period. (14 C 2589: Dkt. No. 120 ¶ 14); (14 C 2589: Dkt. No. 117 at 21,
21 n.17 ).
19
but the transcript is only 253 pages long. (PSOF OP ¶ 21); (U. Ex. 111). In addition, there is
no reliable foundation indicating how Rina learned about Howard. Thus, Paragraph 21 is
stricken for failure to comply with Local Rule 56.1.
Even if Plaintiffs had pointed to admissible evidence to support Paragraph 21, the
comparison made by Plaintiffs to Howard does not indicate an unlawful disparate treatment.
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.
Without more, Howard is not a proper comparator for ADEA purposes. ALPA indicates
that, unlike Plaintiffs, Howard may have had a disability and under the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq., and that United was required to reasonably
accommodate Howard’s disability. (ALPA Reply Memorandum of Law in Support of its Motion
for Summary Judgment and in Opposition to Plaintiffs’ Partial Motion for Summary Judgment
“A. Reply” Dkt. No. 120 at 5). Howard is also not a proper comparator because although
Plaintiffs state that Howard was younger, Plaintiffs assert Howard was only 30 months from his
65th birthday. (PSOF OP ¶ 21). “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.
20
Consolidated Coin Caterers Corp., 517 U.S. 308, 312–13 (1996)). Plaintiffs have not shown
that Howard was substantially younger than them, or that ALPA considered the difference
significant. Plaintiffs also attempt to argue that the “universe is simply younger people who
were allowed to be instructors/evaluators in the place of Plaintiffs.” (P. Opp./SJ at 10). Such a
generic reference to a “universe” of people does not satisfy the burden to specifically identify a
proper comparator. 11 Thus, Plaintiffs have failed to properly identify a comparator outside the
protected class who was treated more favorably.
G. 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 ¶ 20). It
is undisputed that at the relevant time there were approximately 1,400 pilots on furlough. (PSOF
¶ 20). 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.
H. Wisdom of 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
11
Plaintiffs also make a vague reference to a provision in the UPA that was created to benefit an unidentified union
negotiator. (P. Opp./SJ at 27). Plaintiffs, however, fail to cite to evidence that references any union negotiator or
supports such facts. (P. Opp./SJ at 27); (PSOF ¶ 21); (P. Ex. 44).
21
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.
Plaintiffs challenge the opinion of ALPA 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. 12 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.
(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.
12
Plaintiffs cite to W. Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985) for the proposition that expert reports such as
Joseph’s reports are inappropriate in ADEA case and that “[e]ven in cases involving public safety, the ADEA
plainly does not permit the trier of fact to give complete deference to the employer's decision.” 472 U.S. at 423; (P.
Opp./SJ at 11). The issue before the court in Criswell was “whether the jury was properly instructed on the
elements of the BFOQ defense.” Id. ALPA is not pursuing any such defense at this juncture.
22
¶ 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 ALPA’s business decisions.
Plaintiffs also argue that there is no empirical evidence that shows that the United Policy
makes better-trained I/Es. ALPA, 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 ALPA used the policy as a pretext to discriminate based upon age. 13
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 ¶ 6). Even
if Plaintiffs could point to sufficient evidence to show that they are right and ALPA was
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
13
Plaintiffs also argue that ALPA must show a “rational connection” between the I/E job and its qualifications. (P.
Opp./SJ at 9). Plaintiffs, however, in support quote DiIulio v. Bd. of Fire & Police Comm'rs of City of Northlake,
682 F.2d 666 (7th Cir. 1982). DiIulio was not an ADEA case and in making such a statement, the court was
addressing constitutional law and the “constitutional requirements of due process.” Id. at 668-69. DiIulio is thus
not on point.
23
(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. 14 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. 15 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
14
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.
15
Plaintiffs contend that this court held in its prior ruling that the reasonableness of the United Policy should be
adjudicated. Plaintiffs point to the prior ruling in this case on the motion for judgment on the pleadings when the
court stated that it was “unwilling to hold that the I/E line-flying requirement is reasonable based only on the fact
that it was United's longstanding practice, without the benefit of any evidence that might be developed in discovery
to show that, for all its longevity, the practice was totally unreasonable.” Bader v. Air Line Pilots Ass'n, 113 F.
Supp. 3d 990, 997 (N.D. Ill. 2015). Plaintiffs, however take that statement out of context. In making the above
statement the court was addressing “whether requiring I/Es to be line-qualified is a” reasonable factor other than age
(“RFOA”) to satisfy the RFOA defense. Id. At the summary judgment stage, ALPA is no longer pursuing a RFOA
defense. (A. Reply at 6). Nor is ALPA pursing a bona fide occupational qualification defense. (A. Reply at 6).
24
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
“[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.
25
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.
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)).
26
Although Plaintiffs criticize ALPA’s belief that flying the line helps an I/E to become
better at his or her job, Plaintiffs have not shown that ALPA’s given reason is other than a
legitimate non-discriminatory reason for its actions. The court acknowledges that in certain
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. 16 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 ALPA’s decision to include it in the UPA less suspicious.
Whether ALPA is being honest about its decision to adopt the long standing policy does
involve a question of fact. Plaintiffs, however, must 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
ALPA’s decision to continue a longstanding policy concealed some hidden animus based on age.
See Grant, 870 F.3d at 568 (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 properlysupported motion by identifying specific, admissible evidence showing that there is a genuine
16
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
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.
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 ALPA’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, ALPA’s motion for
summary judgment on that ADEA claims is granted and Plaintiffs’ partial motion for summary
judgment on such claims is denied.
III. Duty of Fair Representation Claims
ALPA argues that the DFR claims are barred by the statute of limitations. ALPA also
contends that even if the claims are timely, there is not sufficient evidence to show that ALPA
breached its duty of fair representation.
A. Statute of Limitations
ALPA contends that Plaintiffs failed to bring the DFR claims within the statute of
limitations period. A six-month statute of limitations applies to DFR claims brought under the
28
RLA. United Indep. Flight Officers, Inc. v. United Air Lines, Inc., 756 F.2d 1262, 1271 (7th Cir.
1985) (explaining that the DFR claim against the airline’s union, which is subject to the RLA,
must be brought under the RLA instead of under the LMRA). Generally, when a DFR claim is
based upon the entry into a collective bargaining agreement, the claim accrues “when the
contract is signed.” Id. at 1273. In the instant action, it is undisputed that UPA, which included
LOA 18, was executed on December 18, 2012. (P. Opp./SJ at 4). Plaintiffs did not bring the
instant action until April 7, 2014, which was beyond the six-month limitations period. Plaintiffs
argue, however, that the limitations period was tolled because of representations by ALPA. If an
employee elects to pursue internal union procedures, “during the pendency of those union
procedures, the six-month statute of limitations is tolled, to commence running only when the
union procedures are exhausted.” Frandsen v. Bhd. of Ry., Airline & S.S. Clerks, Freight
Handlers, Exp. & Station Employees, 782 F.2d 674, 681 (7th Cir. 1986). It is undisputed that in
June 2013, Doyle delivered the June 2013 Letter to ALPA. (ASOF ¶ 21). ALPA argues that it
responded in a letter dated July 1, 2013 (“July 2013 Letter”), sent by Continental Master
Executive Council Chairman Jay Pierce. (ASOF ¶ 22). ALPA contends that in the letter it
informed Plaintiffs that the relief sought by Plaintiffs was beyond ALPA’s control and that the
requested relief was denied. ALPA argues that at that point at the latest, Plaintiffs DFR claims
began to run. A review of the actual language in the July 2013 Letter, however, does not
indicate that ALPA had come to any sort of finality in regard to Plaintiffs’ requests. As ALPA
points out, it informed Plaintiffs that it did not “have unilateral authority to strike or modify any
provision of the” UPA. (P. Ex. 33). If that was all that ALPA conveyed it certainly would have
given Plaintiffs a final answer to their request. In the letter, however, ALPA also states that it
has “referred this matter to the ALPA Legal Department for review.” (P. Ex. 33). If, as ALPA
29
now contends, ALPA had made a final determination, it would not have needed to refer the
matter to the legal department for further review. In the July 2013 Letter, ALPA also states that
it “is a matter, depending on the circumstances, that would have to be considered by, at the very
least both MEC’s” and that it would “make sure that the matter is reviewed as described above.”
(P. Ex. 33). Based upon such representations by ALPA, Plaintiffs were justified in concluding
that the further “review” that ALPA repeatedly referenced in the July 2013 letter was ongoing
and that ALPA had not reached a final decision.
ALPA contends that Plaintiffs admitted that they were not holding out any hope after
receiving the July 2013 Letter. (A. SJ at 12-13). In make such an assertion, however, ALPA
merely rely on a statement made by Doyle in his deposition as to his own personal belief.
(ASOF ¶ 22). That statement does not show that the other two Plaintiffs did not hold out hope.
Nor did Doyle specifically represent that he concluded that the July 2013 Letter was a final
decision and that he did not hold out hope that the final decision would be in his favor. When
Doyle was asked to summarize the July 2013 Letter by ALPA’s counsel, Doyle merely stated
that “the bottom line was that” ALPA could not help Plaintiffs” and that “[i]t was beyond
[ALPA’s] control.” (Doyle Dep. at 64). Doyle was not asked by ALPA’s counsel about the
references in the July 2013 Letter to the further review by ALPA or whether Doyle was hoping
that after such review ALPA would support his requests. Thus, the undisputed facts do not
indicate that Plaintiffs were derelict in the prosecution of their rights against ALPA for breach of
the duty of fair representation and the DFR claims are timely.
30
B. Breach of Duty of Fair Representation
The parties contend that they have pointed to sufficient evidence to prevail on the merits
of the DFR claims as a matter of law. A union breaches its duty of fair representation if it
engages in actions that are “arbitrary, discriminatory, or in bad faith. . . .” Cunningham v. Air
Line Pilots Ass'n, Int'l, 769 F.3d 539, 541 (7th Cir. 2014) (quoting Vaca v. Sipes, 386 U.S. 171
(1967)). The duty of fair representation “applies to negotiating collective bargaining agreements
as well as to enforcing them.” Id. (explaining that in Air Line Pilots Ass'n, Int'l v. O'Neill, 499
U.S. 65 (1991), the Supreme Court held that “a union can be held liable for negotiating an
irrational agreement with an employer”). A court presented with a DFR claim, however, does
not engage in a de novo review of the negotiations by the union. Id. at 542. In assessing
whether a union has breached its duty of fair representation, “[a]ny substantive examination of a
union’s performance . . . must be highly deferential, recognizing the wide latitude that
negotiators need for the effective performance of their bargaining responsibilities.” Id. (quoting
O'Neill, 499 U.S. at 78). A union breaches its duty of fair representation if it engages in
discrimination that is “‘intentional, severe, and unrelated to legitimate union objectives.’” Glenn
v. Terminal R.R. Ass'n of St. Louis, No. 14 CV 328, 2015 WL 4272970, at *14 (S.D. Ill. July 14,
2015) (quoting Amalgamated Ass'n of Street, Elec. Ry. & Motor Coach Emps. of Am. v.
Lockridge, 403 U.S. 274, 301 (1971)). The “final product of the bargaining process may
constitute evidence of” an arbitrary action and breach of the duty of fair representation “only if it
can be fairly characterized as so far outside a wide range of reasonableness . . . that it is wholly
irrational or arbitrary.” Cunningham, 769 F.3d at 542 (quoting O'Neill, 499 U.S. at 78).
Plaintiffs contend that ALPA’s agreement to adopt the United Policy in the UPA was
discriminatory and arbitrary. ALPA has presented evidence showing that it agreed to the UPA
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based on the legitimate interest in having I/Es receive the best available training. Although
Plaintiffs vehemently dispute ALPA’s conclusion, Plaintiffs have failed to show that ALPA’s
interest was not related to legitimate union objectives. It is an unfortunate reality that when any
decision by a union is made for the greater good of its members, some members may be
negatively affected as well. That does not mean that ALPA acted in an unlawful and
discriminatory manner. In regard to the arbitrariness of ALPA’s conduct, Plaintiffs fall far short
of making any such showing. ALPA has provided detail explaining the reasoning behind the
belief that flying the line has training value. Plaintiffs’ many arguments relating to the wisdom
of the United Policy such as the fact that other airlines don’t have such a policy fail to show that
ALPA acted beyond the wide range of its discretion. The fact that United had such a policy for
such an extended period is a further indication that there is a legitimate basis for ALPA to agree
to the adoption of the United Policy in the UPA.
Even if Plaintiffs were able to establish that considering all factors and empirical
evidence United would be better off employing NLQFIs, that would not be sufficient to show
that ALPA breached its duty of fair representation. ALPA is allowed discretion and latitude in
executing its union functions and this court is not here to second guess ALPA’s decision-making
absent a serious dereliction in its duty to protect the rights of those it represents. In adopting
United’s long-standing Policy into the UPA, ALPA was not acting outside the wide range of
reasonableness. It is also worth noting that ALPA did obtain for Plaintiffs an additional twelve
months of work with United despite the fact that they were not qualified to fly the line and that
during those twelve months Plaintiffs received a 40% pay increase over what they had earned
with Continental. (ASOF ¶ 20). Plaintiffs have failed to point to sufficient evidence that would
indicate that ALPA breached its duty of fair representation through discrimination or arbitrary
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conduct. Therefore, ALPA’s motion for summary judgment on the DFR claims is granted and
Plaintiffs’ partial motion for summary judgment on the DFR claims is denied.
CONCLUSION
For the reasons set forth above, ALPA’s motion for summary judgment [73] is granted
and Plaintiffs’ partial motion for summary judgment [114] is denied. Civil case terminated.
Date: 6/4/18
Jorge L. Alonso
United States District Judge
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