Stanley v. ExpressJet Airlines, Inc.
Filing
43
OPINION AND ORDER granting 33 Motion for Summary Judgment. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHAREE STANLEY,
Plaintiff,
Case No. 16-cv-12884
Paul D. Borman
United States District Judge
v.
EXPRESSJET AIRLINES, INC.,
Defendant.
____________________________/
OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (ECF NO. 33)
In this religious discrimination action brought under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq., (“Title VII”) and its Michigan
counterpart the Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101, et seq.,
(“the ELCRA”), Plaintiff, a Muslim woman who was employed as a flight attendant
for Defendant ExpressJet Airlines, Inc. (“ExpressJet”), alleges that she was
discriminated against on the basis of her religion when Defendant refused to
accommodate her religiously held belief that prevents her from ever serving alcohol
to passengers. Plaintiff further alleges that Defendant retaliated against her by
rescinding a previously-granted accommodation and placing Plaintiff on
administrative leave pending termination.
In an Opinion and Order issued on June 7, 2017, this Court denied ExpressJet’s
motion to dismiss because the motion relied on matters outside the pleadings. Stanley
v. ExpressJet Airlines, Inc., No. 16-cv-12884, 2017 WL 2462487 (E.D. Mich. June
7, 2017). Now before the Court is ExpressJet’s Motion for Summary Judgment (ECF
No. 33). Plaintiff has filed a Response (ECF No. 36) and ExpressJet has filed a Reply
(ECF No.37). The Court held a hearing on November 6, 2018. For the reasons that
follow, ExpressJet’s motion is GRANTED.
I.
FACTUAL BACKGROUND
A.
Plaintiff’s Employment and Termination From Express Jet
Plaintiff began working as a flight attendant for Express Jet on January 31,
2013. (ECF No. 33, Def.’s Mot. Summ. J. Ex. C, January 29, 2018 Deposition of
Charee Stanley 56:8-12; Def.’s Mot. Ex. B, May 30, 2018 Declaration of Daniel J.
Curtin ¶ 4.) As an Express Jet Flight Attendant, Plaintiff was a member of the
International Association of Machinists and Aerospace Workers (“the IAM” or “the
Union”), and a Collective Bargaining Agreement (“CBA”) governed the relationship
between Express Jet and its Flight Attendants. (Def.’s Mot. Summ. J. Ex. A, ASAAFA 2008 CBA.) Plaintiff was a practicing Christian when she began the interview
process for the job with Express Jet, but during the interview process in midDecember, 2012, she met “a young gentleman who talked about Emirates” and
2
expressed the view that if he was to live abroad, he would work for Emirates.
(Stanley Dep. 24:9-21, 51:5.) Plaintiff became curious about the possibility of living
abroad and working for Emirates and “went home and looked it up.” (Stanley Dep.
24:20-24.) She learned that she could “live in Dubai, and [] work overseas, and []
make tax-free money, and [] could travel the world.” (Stanley Dep. 24:23-25:1.)
Plaintiff researched Emirates and applied for a job with them and “knew that Dubai
was a Muslim country but didn’t know what that meant.” (Stanley Dep. 25:1-4.)
Plaintiff began to research the Muslim faith and “fell in love with it” and took her
“shahada,” or “confession of faith,” on January 2 (or 3), 2013. (Stanley Dep. 25:4-7,
51:4.) So Plaintiff was not a practicing Muslim when she interviewed for the job with
Express Jet but once she started her training on January 21, 2013, she had converted
to the Muslim faith. (Stanley Dep. 25:11-14, 51:3-5.)
During her training, Plaintiff made a request of one of her trainers to be
permitted to wear her hijab (head scarf). (Stanley Dep. 65:14-22,67:6.) That verbal
request was initially declined but Plaintiff submitted a written a request shortly
thereafter, on or about August 26, 2013, which was granted by Express Jet. (Stanley
Dep. 66:3-20, 70:8-71:6, 75:1-16; ECF No. 33-6, Stanley Dep. Attach. 9, PgID 1153.)
Plaintiff understood that serving beverages was part of her job responsibilities
and she understood that alcohol was one of the beverages that was available to
3
passengers to request as part of that beverage service on Express Jet flights. (Stanley
Dep. 87:11-23.) Plaintiff testified that the Flight Attendant Manual (“FAM”) was a
flight attendant’s “bible” and was required to be carried at all times and updated as
necessary. (Stanley Dep. 89:4-8. 92:13-24; Stanley Dep. Attachment 11, Flight
Attendant Manual Excerpts.) The FAM outlines an Express Jet Flight Attendant’s job
responsibilities, obligates a Flight Attendant to “perform[] all duties as outlined in the
Express Jet Flight Attendant Manual, Company Policy Manuals, and duties as
assigned by the Captain,” and specifically references the responsibility of a Flight
Attendant to “attend to all passenger requests, including beverages, alcohol and/or
other snacks.” (FAM Service Policy, PgID 1158, 1170.) Plaintiff understood that she
was responsible for performing all of the duties as outlined in the FAM. (Stanley Dep.
93:17-23.) The FAM also outlines the “normal chain of command” on an Express Jet
aircraft as follows: “1. Captain, 2. First Officer, 3. Flight Attendant “A”, 4. Flight
Attendant “B”.” (FAM Chain of Command, PgID 1166.) The Chain of Command
further provides that “[t]he most senior Flight Attendant at duty-in shall either assume
the A position or assign the A position to the other assigned Flight Attendant.” (Id.)
Ms. Stanley understood this hierarchy and also understood that the more senior Flight
Attendant could choose whether he or she wanted position “A” or position “B” and
that Flight Attendant “A” would be positioned in First Class and Flight Attendant “B”
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would be positioned in the main cabin. (Stanley Dep. 95:8-24.) Ms. Stanley
specifically testified to her understanding that seniority “gave you better choices,” and
that as the senior Flight Attendant “[y]ou have the pick of what position you want on
an aircraft.” (Stanley Dep. 117:4-118:19.) Ms. Stanley understood that there was this
division of responsibilities and that the Flight Attendants were expected to “work as
a team,” and perform the other Flight Attendant’s duties when necessary to get the job
done. (Stanley Dep. 96:9-97:8.)
The FAM contains specific detail regarding the duties of a Flight Attendant
assigned as the Flight Attendant on a one-Flight Attendant aircraft and the duties
assigned to the “A” and “B” Flight Attendants when two Flight Attendants are on
board an aircraft. (FAM Phases of Flight Overview PgID 1160-64.) Ms. Stanley also
recalled having received, or been given access online to, the Flight Attendant
Handbook. (Stanley Dep. 100:9-11; Stanley Dep. Attach. 12, 4/24/15 ExpressJet
Flight Attendant Handbook.) The Flight Attendant Handbook (“FAH”) outlines many
employment related guidelines, including general serving guidelines and parameters,
and specifically guidelines regarding the service of alcohol. (FAM § 3-6.1, PgID
1206-11.) The FAM also outlines the general guidelines for service in Delta First
Class cabins. Specifically, the FAM provides, among other guidelines, that: “FA “A”
is responsible for conducting a pre-departure beverage service to all First Class
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customers, to include a full selection including alcoholic beverages.” (FAM § 3-4.1,
PgID 1196.) The FAM further provides that: “FA “B” should assist with First Class
pre-departure service. For example, FA “A” may take orders, hang coats and serve
beverages, while FA “B” remains in the galley to greet boarding customers, prepare
beverages and control boarding traffic to allow FA “A” to move about the First Class
cabin.” (Id.) The FAM provides that Flight Attendants are primarily responsible for
their “A” or “B” duties but are “encouraged to work together and assist each other
with completing all required service on the aircraft.” (Id.) As far as the serving of
alcohol, Ms. Stanley testified that “[t]here are flights that no one asks for it, and there
are flights when everybody seemingly asks for it,” and “everything in between.”
(Stanley Dep. 123:13-15.) The job posting for the Flight Attendant position that was
in effect when Plaintiff applied for a job and to which Plaintiff would have responded
in applying for a position as an Express Jet Flight Attendant, expressly stated that the
job duties of Flight Attendant required the selling of “food and alcoholic beverages
to passengers . . . .” (Stanley Dep. 76:10-77:6; Attachment 3, Job Posting for Flight
Attendant.) Ms. Stanley recalled reading the job posting online for the Flight
Attendant position, although she could not remember the specific details of the
posting. (Stanley Dep. 80:21-81:1.)
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And Ms. Stanley performed all of her job responsibilities, and did serve alcohol,
through the first year and a half of her service as an Express Jet Flight Attendant, and
was considered very professional and attentive and a good employee, with no history
of customer complaints. (Def.’s Mot. Summ. J. Ex. F, April 10, 2018 Deposition of
Melanie Brown 39:13-41:1. 36:23-37:11.) However, sometime in early June, 2015,
Plaintiff learned that she was prohibited not only from consuming alcohol, but also
from preparing and/or serving alcohol. (Stanley Dep. 119:7-120:12.) Plaintiff
testified that she learned of this prohibition during a conversation with an Imam with
whom she discussed questions that would arise as she studied Islam and read the
Quran. Plaintiff explained to the Imam that she was required to serve and sell alcohol
at work and he told her that she was not supposed to drink or serve/sell alcohol, but
told her “don’t quit your job . . . you can’t quit your job . . . you just pray to Allah to
give you something better.” (Stanley Dep. 119:22-120:5.)
Following this discussion with her Imam, on or about June 2, 2015, which was
the next time she went to work and had an opportunity to speak to Melanie Brown, the
chief flight attendant at the Detroit Express Jet base, she explained to Ms. Brown that
she had learned from her Imam that she was not supposed to serve or sell alcohol.
(Stanley Dep. 118:24-119:6, 121:21-122:2.) Plaintiff explained to Ms. Brown what
she had learned from the Imam and according to Plaintiff, Ms. Brown told her that it
7
shouldn’t be a problem for Plaintiff to “just make an arrangement with the other flight
attendant,” to serve any alcoholic beverages that customers requested from the
Plaintiff. According to Ms. Stanley, Ms. Brown implied that it was “an easy fix.”
(Stanley Dep. 122:9-23.) Plaintiff did testify that Ms. Brown told her that Ms. Brown
would “have to look into it” but that Plaintiff should go ahead and “make an
arrangement” with the other flight attendant. (Id.) During this conversation with Ms.
Brown, Plaintiff mentioned that the month of Ramadan was about to start and she did
not want to go into that holy month doing something that she now knew she was not
supposed to do. Ms. Brown also mentioned to Plaintiff, who wanted to take time off
for Ramadan, that Plaintiff could take Time Off Without Pay (“TOWOP”) for the
month of Ramadan, which Plaintiff decided to do. (Stanley Dep. 124:12- 125:14.)
Ms. Brown memorialized this conversation with Plaintiff in a “daily note” log
for entry in the “crew resource management system.” Ms. Brown would have made
this entry in her daily log and asked Ms. Holland, identified as the “creator” on the
entry, to enter it into the crew resource management system so that it could be placed
in Plaintiff’s profile. (Stanley Dep. 64:22-68:15, 98:8-99:22.) Ms. Holland would
have copied and pasted Ms. Brown’s daily note memorializing the June 2, 2015
meeting with the Plaintiff, which states as follows:
M. Brown DN 6-2-15 as we enter the season of Ramadan, FA raised
concerns about not being able to serve alcohol as a tenant [sic] of her
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faith. We discussed the options she has and ultimately the decision
regarding her continued employment rests with her. I explained
TOWOP for the month of July, which if awarded will assist, however it
is not a permanent solution. I suggested she work with her fellow FAs
on board to assist during service, suggested she work the main cabin
where alcohol is purchased thus potentially limiting her interaction.
Recommended she look at our Careers tab to see if there was another
position within the company she may be able to apply for. I also sought
guidance from Kaylee Davis.
(Brown Dep. Attachment 6.) Ms. Davis was an individual from Express Jet’s Human
Resource Department and Ms. Brown could not recall if she called Ms. Davis or
emailed her but she did recall that she also spoke with Mr. Curtin, Director of In
Flight Operations, who directed her to Ms. Davis to see about any special
accommodation form that might be available to Plaintiff and what to do if Plaintiff
submitted such a request. (Brown Dep. 103:10-107:11.)
Ms. Brown understood Plaintiff to be asking about how to handle her inability
to serve and sell alcohol on a particular upcoming flight due to the observance of the
Ramadan holiday. Ms. Brown stated that Plaintiff explained in the June 2, 2015
meeting that she had just learned “she could not serve alcohol because she was going
into Ramadan and she did not feel comfortable on” the flight she was about to board
and Plaintiff “didn’t speak beyond that flight.” (Brown Dep. 91:2-21.) “It was
regarding that specific flight, and [Plaintiff] was beginning to observe Ramadan. . .
. Ramadan was the catalyst for that.” (Brown Dep. 92:3-8.) Ms. Brown testified: “My
9
advice to her because we were within minutes of that flight departing was to speak to
her fellow flight attendant, express her concern and ask if he would assist her on that
flight.” (Brown Dep. 94:22-25.) Ms. Brown did not interpret that Plaintiff was
making a formal accommodation request when she came to speak with Ms. Brown on
June 2, 2015, about how to handle her problem with serving alcohol on a flight that
was about to depart. (Brown Dep. 164:3-165:12.)
Plaintiff left the June 2, 2015 meeting with Ms. Brown with a different
impression: Plaintiff thought that the arrangement whereby she would ask fellow
Flight Attendants to perform Plaintiff’s alcohol service duties was a permanent
arrangement and that going forward, after Plaintiff returned from her TOWOP for the
month of Ramadan, she would “just pick up and do the same,” and just “work with the
other flight attendants,” and she did not walk away from the June 2, 2015 meeting
with Ms. Brown thinking it was a temporary arrangement. (Stanley Dep. 127:13130:18.) Plaintiff never thought the arrangement suggested by Ms. Brown, whereby
Plaintiff would ask the other Flight Attendant with whom she was assigned to fly that
day whether they would serve alcohol for the Plaintiff, was “temporary.” (Stanley
Dep. 182:16-22.)
On Friday, June 7, 2015, Ms. Brown received an email from Chief Flight
Attendant Amy Cain, who reported a call she received from Flight Attendant Abdel
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Aafifi, complaining about Plaintiff’s refusal to help him assist with the beverage
service in First Class due to her inability “to pour or serve alcohol during this time due
to her religion.” (Brown Dep. 115:16-116:15; Brown Dep. Attachment 7.) Ms. Cain
reported that “as the senior FA, he is requesting assistance with first class but she is
refusing.” (Brown Dep. Attachment 7.) Ms. Brown forwarded this email to Mr. Rick
Berry, employee relations manager, and subsequently met with Mr. Aafifi regarding
this complaint. Mr. Aafifi he explained that there was “a lot of extra work” that he
was required to do when he was flying with Ms. Stanley and he felt it was “unfair.”
Mr. Aafifi never filed a formal complaint regarding Ms. Stanley. (Brown Dep.
116:19-119:16.)
Ms. Stanley was then away on TOWOP for the remainder of Ramadan and
Express Jet received no further complaints about Ms. Stanley until Express Jet
received an Irregular Operations Report (“IOR”) from Flight Attendant Katie Hice on
August 2, 2015, after Plaintiff had returned from her TOWOP for Ramadan. Ms.
Hice’s IOR read in full as follows:
I worked with flight attendant Charee Stanley who refused to do her
flight attendant duties and failed to follow ExpressJet policies. I was
asked by FA Charee Stanley to serve ALL alcoholic beverages on flights
DL5319 dtw/orf, DL5319 orf/dtw, DL5237 dtw/yul, DL 5025 yul/dtw
because she said she had since being hired converted to a different
religion which is now Muslim and she isn’t allowed to serve alcohol
now. She said she knows she is supposed to serve alcohol but she
can’t/won’t serve alcoholic beverages. Several times Charee Stanley
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was in the galley reading a small book with foreign writing in it. It was
extremely hard to do both FA A and FA B duties. I served the alcoholic
beverages to first class on the ground, completed FA B duties, served
first class alcoholic beverages once in the air, served economy comfort
and economy and then when bringing the cart back to the galley first
class needed to be attended to again. I don’t know what she was doing
while I was busy with passengers and serving. When I would get to the
galley she had out her food, her phone, her book with foreign writings
or taking things in and out of her bags. Once when the captain said to
close the main cabin door she hesitated because she was having a
conversation with a ramper about where she should move to in Detroit
(good area) and didn’t close the door until her conversation was
complete. The captain had even got me to tell her to close the door and
I did but she did what she wanted and finished her conversation first.
Charee also wore a headress upon her head. Twice Charee came to
switch with me so I could serve alcoholic beverages to first class while
I was serving in the back. First class needed more than just alcoholic
beverages as I ended up giving other drinks as well and tidying up as
they handed me things they wished to discard.
(Stanley Dep. Attachment 15.)
Plaintiff testified that indeed Ms. Hice did perform all of Plaintiff’s alcohol
serving duties on four different flights and Plaintiff explained that she and Ms. Hice
would “swap” positions, like this:
Q: So you would swap positions?
A: Correct.
Q: You would go to first class. She would come to the main cabin?
A: And then once she serves, I would go back to main cabin so she can
go back to first class.
Q: So she would come to you, she would make the drinks. In the
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meantime you’d go up to the first class passengers?
A: Yes.
Q: And you were just, at that point, I assume walking through the firstclass cabin and making sure everyone’s okay, seeing if they need
anything.
A: Yes.
Q: Did it ever – did you ever have first-class passengers ask you for
alcohol when you swapped places and went up to first class?
A: Maybe they did, and I took the order and I left it for her when she
came back. Because it doesn’t take long to make a drink, so once she
makes it . . . we were swapping back out. And I would – if there was a
request, I would put 1A would like this [alcoholic drink] . . . [s]o that she
would know when she came back.
(Stanley Dep. 151:4-152:9.) Plaintiff testified that she gave Ms. Hice “the same spiel
[she] gave every flight attendant [she] worked with: As a Muslim, I’m not permitted
to do so. Do you mind serving on my behalf . . . .” (Stanley Dep. 153:16-19.)
Plaintiff testified that she was never required to work a single Flight Attendant plane
so she had never considered what would have occurred had she been the sole Flight
Attendant and refused to serve alcohol. After initially not responding to further
questions about this issue, Plaintiff eventually responded that Express Jet would have
to pull someone from the reserves to take over that flight for the Plaintiff. (Stanley
Dep. 174:11-182:4.)
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On August 18, 2015, a meeting was held with Plaintiff, Ms. Brown, a Union
representative (Nate Wysong), and a human resources representative (Tracy Hassell),
to discuss Ms. Hice’s IOR and to get “Plaintiff’s side of the story.” (Brown Dep.
150:15-160:21; Brown Dep. Attachments 9, 10.) The focus of the concern at the
meeting was Plaintiff’s refusal to serve alcohol and her request to fellow Flight
Attendants to additionally perform her alcohol service duties for her. (Brown Dep.
162:21-163:5, Brown Dep. Attachment 10, Melanie Brown 8/18/15 Meeting Notes.)
Tracee Hassell explained to Plaintiff at the August 18, 2015 meeting that serving
alcohol was a job requirement for a Flight Attendant and that Express Jet could not
guarantee Plaintiff that she will always fly with another Flight Attendant who will be
willing to perform Plaintiff’s alcohol service duties. (Brown 8/18/15 Meeting Notes.)
Ms. Brown’s meeting notes reflect that Ms. Brown explained to Plaintiff that she had
three options: (1) take a personal leave for a period of time to seek another position
in the company; (2) make the decision to serve and sell alcohol; or (3) voluntarily
resign. (Id.) Plaintiff similarly recalled that she was given these options. (Brown
Dep. Attachment 13, Plaintiff’s 8/18/15 Personal Statement, PgID 2025.)
At the close of the August 18, 2015 meeting, Plaintiff presented Express Jet
with a formal request for a religious accommodation not to serve alcohol. (Brown
Dep. Attachment 11, Stanley Religious Accommodation Request Form.) Plaintiff also
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presented a letter from her attorney, Ms. Lena Masri, explaining that Express Jet’s
refusal to accommodate Plaintiff’s sincerely-held religious belief that prohibited her
from serving alcohol was a violation of Title VII of the Civil Rights Act of 1964.
(Brown Dep. Attachment 12, 8/18/15 Masri Letter.)
On August 19, 2015, before Plaintiff had the opportunity to elect one of the
three options presented to her at the August 18, 2015 meeting, Express Jet informed
Plaintiff that she had been placed on a 90-day non-disciplinary, unpaid administrative
leave of absence, which was later extended to a year, to allow her to seek another
position with Express Jet. (Curtin Decl. ¶ 38.) Express Jet placed Plaintiff on this 90day leave before she had an opportunity to select one of the three options presented
to her at the August 18, 2015 meeting because she was scheduled to work the day after
the meeting and “ExpressJet needed to categorize her status in its scheduling and
payroll systems.” (Id.) Also on August 19, 2015, Plaintiff received a call from
ExpressJet informing her that the leave had been extended to a 12-month leave.
(Stanley Dep. 184:6-14; Brown Dep. Attachment 15, PgID 2040.)
On August 25, 2018, Express Jet sent Plaintiff a letter informing her that
serving alcoholic beverages to customers on their request was “an essential function
of the Flight Attendant position,” and that it would be “unrealistic and operationally
difficult for the Company to require Flight Attendants, with whom [Plaintiff] might
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be flying [], to assume this duty on [her] behalf, while still performing their duties as
outlined in the Flight Attendant Manual.” Furthermore, ExpressJet noted that it could
not guarantee that Plaintiff would always be assigned to a two (2) flight attendant
aircraft. Therefore, ExpressJet found Plaintiff’s request for an accommodation “to be
unreasonable and [not able to be] honored.” (Brown Dep. Attachment 15, 8/25/15
Denial Letter.) The 8/25/15 Letter encouraged Plaintiff to take advantage of her oneyear administrative leave to find another position with ExpressJet. (Id.)
Plaintiff testified that there was “no discretion” within the Islamic faith for her
to serve alcohol under any circumstance and she stated that she was not willing to
violate that proscription. (Stanley Dep. 187:21-188:3.) But in Plaintiff’s opinion,
Express Jet had already granted her an accommodation that was “their idea” – that
being Ms. Brown’s verbal suggestion to Plaintiff on June 2, 2015, as to how she
should handle the impending situation with her upcoming flight – and as a result of
her doing what they told her to do, they unjustifiably took her job away. (Stanley
Dep. 240:19-241:15.)
B.
The Provisions of the Governing Collective Bargaining Agreement
As noted supra, as a member of the IAM Union, Plaintiff’s employment with
Express Jet was governed by a CBA. (Def.’s Mot. Summ. J. Ex. A, ASA-AFA 2008
CBA .) Pursuant to that CBA, a Flight Attendant’s monthly work schedule is
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arranged through a Preferential Bidding System (“PBS”) set forth in the CBA. (CBA
§ 7.C, PgID 766.) Flight schedules are “constructed preferentially, in order of
seniority . . . .” (CBA § 7.C.3.) The CBA expressly provides: “The senior Flight
Attendant may choose the “A” or “B” position on the aircraft.” (Def.’s Mot. Summ.
J. Ex. A, ASA-AFA 2008 CBA § 7.W.1., PgID 779.) The CBA further provides:
“Seniority shall govern all Flight Attendants in the case of bidding rights, filling of
vacancies . . . vacation preferences, and domicile assignments.” (Id. § 11.E.1., PgID
798.)
If a 2 (two) Flight Attendant aircraft is downgraded to a 1 (one) Flight
Attendant aircraft, the senior Flight Attendant has the right to accept or decline the
downgrade: “If more Flight Attendants than needed are scheduled for and report for
the same trip (as a result of scheduling error, downgrade, etc.) the choice to remain on
the trip from amongst the reporting regular lineholders shall be on a seniority basis.”
(CBA § 7.W.2.) If the senior Flight Attendant declined the downgrade, the junior
Flight Attendant would be required to accept the trip. (Curtin Decl. ¶ 15.) If the
junior Flight Attendant refused to accept the downgrade, and no reserves were
available to fill the spot, the senior Flight Attendant would be recalled, which would
violate Section 7.W.2 of the CBA. (Id.) Express Jet has never granted a Flight
Attendant a permanent accommodation that violated the seniority provisions of the
CBA. (Curtin Decl. ¶ 27.) If the senior Flight Attendant refused to voluntarily
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perform Plaintiff’s alcohol service responsibilities for her, or refused to accept a
downgrade, and Express Jet forced the senior Flight Attendant to perform those duties,
Express Jet would be subject to a grievance by the Union claiming that Express Jet
violated the seniority provisions of the CBA, as evidenced by Mr. Aafifi’s complaint
that as the “senior” Flight Attendant, he had the right to request Plaintiff’s assistance
with serving alcoholic beverages to First Class. (Curtin Decl. ¶ 33.) The Union
concedes that providing Plaintiff with an accommodation not to be placed on a single
flight attendant aircraft could violate seniority and a grievance could be filed for
violation of the CBA seniority provisions. (Def.’s Mot. Summ. J. Ex. D, March 28,
2018 Deposition of Yvette Marche Cooper 12:5-23.)
II.
LEGAL STANDARD1
Summary judgment is appropriate where the moving party demonstrates that
1
As this Court noted in its Opinion and Order denying Defendant’s motion to dismiss,
while some courts analyze RLA preemption arguments under Fed. R. Civ. P. 12(b)(1)
as implicating the court’s subject matter jurisdiction to hear the claim, the Sixth
Circuit has held that “completion of the RLA-mandated arbitral process does not
affect a district court’s subject matter jurisdiction over a claim but instead goes to the
court’s ability to reach the merits of a dispute and grant relief. . . .” Emswiler v. CSX
Transp., Inc., 691 F.3d 782, 790 (6th Cir. 2012). See also Upperman v. Southwest
Airlines Co., No. 17-cv-00348, 2018 WL 527376, at *2-3 (S.D. Ohio Jan. 24, 2018)
(denying a motion to dismiss on RLA preemption grounds for lack of subject matter
jurisdiction, citing Emswiler and observing that “[t]he Sixth Circuit has squarely held
that exhaustion of the RLA's arbitration procedures, while necessary for a court to
reach the merits of an RLA minor dispute, is not jurisdictional in nature”).
18
there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Fed. R. Civ. P. 56(a). “A fact is ‘material’ for purposes of a motion
for summary judgment where proof of that fact ‘would have [the] effect of
establishing or refuting one of the essential elements of a cause of action or defense
asserted by the parties.’” Dekarske v. Fed. Exp. Corp., 294 F.R.D. 68, 77 (E.D. Mich.
2013) (Borman, J.) (quoting Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984)). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986).
“In deciding a motion for summary judgment, the court must draw all
reasonable inferences in favor of the nonmoving party.” Perry v. Jaguar of Troy, 353
F.3d 510, 513 (6th Cir. 2003) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). At the same time, the non-movant must produce
enough evidence to allow a reasonable jury to find in his or her favor by a
preponderance of the evidence, Anderson, 477 U.S. at 252, and “[t]he ‘mere
possibility’ of a factual dispute does not suffice to create a triable case.” Combs v. Int’l
Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004) (quoting Gregg v. Allen–Bradley Co., 801
F.2d 859, 863 (6th Cir. 1986)). Instead, “the non-moving party must be able to show
sufficient probative evidence [that] would permit a finding in [his] favor on more than
19
mere speculation, conjecture, or fantasy.” Arendale v. City of Memphis, 519 F.3d 587,
601 (6th Cir. 2008) (quoting Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir.
2004)). “The test is whether the party bearing the burden of proof has presented a jury
question as to each element in the case. The plaintiff must present more than a mere
scintilla of the evidence. To support his or her position, he or she must present
evidence on which the trier of fact could find for the plaintiff.” Davis v. McCourt, 226
F.3d 506, 511 (6th Cir. 2000) (internal quotation marks and citations omitted). That
evidence must be capable of presentation in a form that would be admissible at trial.
See Alexander v. CareSource, 576 F.3d 551, 558–59 (6th Cir. 2009).
III.
ANALYSIS
A.
“Undue Hardship” in The Context of a Title VII Claim of Religious
Discrimination Implicating the Collectively Bargained Rights of CoWorkers
“The analysis of any religious accommodation case begins with the question of
whether the employee has established a prima facie case of religious discrimination.”
Virts v. Consolidated Freightways Corp. of Delaware, 285 F.3d 508, 516 (6th Cir.
2002) (internal quotation marks and citation omitted). “To establish a prima facie
case, a plaintiff must demonstrate that 1) [s]he holds a sincere religious belief that
conflicts with an employment requirement; 2) [s]he has informed the employer about
the conflicts; and 3) [s]he was discharged or disciplined for failing to comply with the
20
conflicting employment requirement.” Id. “Once the plaintiff has established a prima
facie case, the burden shifts to the defendant employer to show that it could not
reasonably accommodate the employee without undue hardship.”
Id.
Here,
ExpressJet assumes for purposes of its motion for summary judgment, “that Stanley
has established a prima facie case of failure to accommodate her religious beliefs.”
(Def.’s Mot. 10 n. 13, PgID 580). Thus, we need only address here the issue of undue
hardship:
This case requires us to interpret a provision of Title VII of the Civil
Rights Act of 1964 that prohibits an employer from taking an adverse
employment action (refusal to hire, discharge, etc.) “against any
individual . . . because of1 such individual's . . . religion.” 42 U.S.C. §
2000e–2(a). Another provision states that the term “religion” “includes
all aspects of religious observance and practice, as well as belief, unless
an employer demonstrates that he is unable to reasonably accommodate
to an employee's or prospective employee's religious observance or
practice without undue hardship on the conduct of the employer's
business.” § 2000e(j). When these two provisions are put together, the
following rule (expressed in somewhat simplified terms) results: An
employer may not take an adverse employment action against an
applicant or employee because of any aspect of that individual's religious
observance or practice unless the employer demonstrates that it is unable
to reasonably accommodate that observance or practice without undue
hardship.
1
Under 42 U.S.C. § 2000e–2(m), an employer takes an
action “because of” religion if religion is a “motivating
factor” in the decision.
E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (2015) (Alito,
J., concurring). The phrase “unless the employer demonstrates that it is unable to
21
reasonably accommodate that observance or practice without undue hardship,” creates
a defense for the employer and “place[s] upon the employer the burden of establishing
an ‘undue hardship’ defense.” Id. at 2032 n. 2 (Scalia, J.).
In Eckles v. Consolidated Rail Corp., 94 F.3d 1041 (7th Cir. 1996), analogizing
to the standards for analyzing Title VII religious discrimination claims, the Seventh
Circuit Court of Appeals held “that the ADA does not require disabled individuals to
be accommodated by sacrificing the collectively bargained, bona fide seniority rights
of other employees.” Id. at 1051. “A ‘bona fide’ seniority system is one that was
created for legitimate purposes, rather than for the purpose of discrimination.” Id. at
1046 n. 7. In so holding, the Seventh Circuit directly analogized the ADA claim it
was called upon to review to claims for religious accommodations under Title VII:
Title VII of the Civil Rights Act of 1964 also contains a duty of
“reasonable accommodation,” in this case to the religions of employees.
Initially it emerged within 1966 EEOC guidelines interpreting Title VII,
see 29 C.F.R. § 1605.2(b) (1968), and in 1972 it was incorporated into
Title VII itself. 42 U.S.C. § 2000e(j). Under Title VII an employer must
“reasonably accommodate” the religious observances and practices of its
employees, up to the point of “undue hardship on the conduct of the
employer's business.” Id. In Trans World Airlines v. Hardison, 432 U.S.
63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), the Supreme Court considered
a conflict between a demand for a particular “reasonable
accommodation” under Title VII (being relieved from Saturday work
duties, as required by the plaintiff's religion) and the seniority rights of
other employees under a collective bargaining agreement (since more
senior employees would be required to work in the plaintiff's stead). The
Supreme Court decisively rejected the position of Hardison and the
EEOC that the statutory requirement to accommodate necessarily
22
superseded the collectively-bargained seniority rights of the other
employees: “We agree that neither a collective bargaining contract nor
a seniority system may be employed to violate a statute, but we do not
believe that the duty to accommodate requires TWA to take steps
inconsistent with the otherwise valid agreement.” Id. at 79, 97 S.Ct. at
2274.
94 F.3d at 1048. As the Seventh Circuit noted in Eckles, the case for drawing the line
under Title VII for accommodating religious beliefs at the interference with bona fide
seniority rights finds support in the provision within Title VII expressly limiting an
employer’s obligation to provide accommodation in the case of a “bona fide” seniority
system:
Notwithstanding any other provision of this subchapter, it shall not be an
unlawful employment practice for an employer to apply different
standards of compensation, or different terms, conditions, or privileges
of employment pursuant to a bona fide seniority or merit system, or a
system which measures earnings by quantity or quality of production or
to employees who work in different locations, provided that such
differences are not the result of an intention to discriminate because of
race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(h).
The Sixth Circuit has expressly held that any accommodation that “will result
in a violation of the seniority provisions of the collective bargaining agreement, and
affect the shift and job preferences and contractual rights of other employees,”
constitutes an undue hardship. Virts, 285 F.3d at 517. Virts is relevant here and merits
further discussion. In Virts, the plaintiff, a “born again Christian,” was an “over-the23
road” truck driver for defendant. 285 F.3d at 511. Under the defendant’s system for
assigning “runs,” the more seniority a driver has, the more choices he has in selecting
a run. Id. Drivers can request certain runs and will be dispatched on runs in the order
requested based upon their seniority. Id. If the dispatcher exhausts the list and fails
to dispatch all of the runs, he drafts drivers “from the bottom of the call board and
go[es] up, in order of least seniority to highest, and place[s] drivers in runs they did
not request.” Id. “If a driver is called by the dispatcher, a driver cannot decline to
accept the run.” Id. Plaintiff was dispatched and refused to accept a “sleeper run” –
“a run where two drivers are dispatched in a sleeper truck” – with a female co-driver,
based upon his sincerely held religious belief that being in the company of a woman
under those circumstances violated the tenets of his faith. Id. at 512. Due to time
factors and the fact that another sleeper run was leaving at the same time, the
defendant and a Union representative “made arrangements to switch loads,” relieving
plaintiff of the obligation to do a run with a female, and told the individuals involved
to get with the Union and dispatcher on their return to “review work rules and contract
procedures.” Id. The defendant contended “that by allowing such a swap, the
seniority provisions of the [governing collective bargaining agreement] were
violated.” Id. “Upon Plaintiff's return from his run, he was informed that the next
time that he was paired with a female on a sleeper run dispatch, he must accept it.”
24
Subsequently, plaintiff declined a second run citing the same religious objection and
was deemed to have voluntarily quit based on his failure to report for the run. Id. at
513. Plaintiff filed a grievance with the union and the union and defendant denied the
grievance, explaining that “there was not any accommodation that could be made for
Plaintiff which would not violate the seniority provisions of the collective bargaining
agreement (“CBA” or “collective bargaining agreement”) and the rights of other
bargaining unit members.” Id. Although defendant ultimately was reinstated to his
position, Plaintiff filed a Title VII Religious Discrimination Complaint with the EEOC
and received a Right to Sue Letter on January 30, 1998, and filed his complaint in the
United States District Court for the Middle District of Tennessee on April 29, 1998.
Id. at 514.
The district court assumed that plaintiff had established a prima facie case of
discrimination, but granted summary judgment to the defendant, finding that
defendant could not reasonably accommodate the plaintiff without undue hardship and
the Sixth Circuit affirmed. Id. at 516-17. In reaching its decision in Virts, the Sixth
Circuit relied, as the district court had done, on Trans World Airlines, Inc. v.
Hardison, 432 U.S. 63 (1977):
In Hardison, the Supreme Court looked at seniority systems as they
relate to an employer's attempt to reasonably accommodate an
employee's sincere religious beliefs. See Hardison, 432 U.S. at 81, 97
S.Ct. 2264. In the course of doing so, the Court noted that to
25
accommodate the plaintiff's claim-that the employer discriminated
against the plaintiff on the basis of his religion in failing to provide the
plaintiff with Saturdays off-the employer would have had to violate its
seniority system. Id. The Court then opined that it “would be anomalous
to conclude that by ‘reasonable accommodation’ Congress meant that an
employer must deny the shift and job preference of some employees, as
well as deprive them of their contractual rights, in order to accommodate
or prefer the religious needs of others, and we conclude that Title VII
does not require an employer to go that far.” Id.
Virts, 285 F.3d at 517. See also Cooper v. Oak Rubber Co., 15 F.3d 1375, 1380 (6th
Cir. 1994) (relying on Hardison to deny a requested religious accommodation and
observing that “it ‘would be anomalous to conclude that by ‘reasonable
accommodation’ Congress meant that an employer must deny the shift and job
preferences of some employees, as well as deprive them of their contractual rights, in
order to accommodate or prefer the religious needs of others[.]”) (quoting Hardison,
432 U.S. at 81); Crider v. University of Tennessee, Knoxville, 492 F. App’x 609, at
*5 (6th Cir. 2012) (table case) (discussing Hardison and acknowledging that requiring
an employer “to breach the contractual rights of its employees by abandoning the
seniority system established by a collective bargaining agreement,” creates an undue
hardship). See also Prach v. Hollywood Supermarket, Inc., No. 09-cv-13756, 2010
WL 3419461, at *5 (E.D. Mich. Aug. 27, 2010) (“employers are not required to
engage in proposed accommodations that have the ability to violate a CBA by
interfering with a valid seniority system”) (citing Virts, 285 F.3d at 519 and Hardison,
26
432 U.S. at 79).
Nor is an employer required to wait for this eventuality to occur before denying
Plaintiff’s requested accommodation. Virts, 285 F.3d at 519 (observing that “an
employer does not have to actually experience the hardship in order for the hardship
to be recognized as too great to be reasonable”) (citing Hardison, 432 U.S. at 81). As
Virts established, “[t]he mere possibility of an adverse impact on co-workers as a
result of [swapping positions] is sufficient to constitute an undue hardship.”Virts, 285
F.3d at 520 (internal quotation marks and citation omitted) (second alteration added).
Plaintiff argues that “the Sixth Circuit has held that it is incumbent on an
employer to at least ‘explore a voluntary waiver of seniority rights’ from others before
taking adverse action against a religious employee.” (Pl.’s Resp. 18, PgID 2434)
(quoting EEOC v. Arlington Transit Mix, Inc., 957 F.2d 219, 222 (6th Cir. 1991)).
But this is both a misstatement of Sixth Circuit law and a misrepresentation of the
requested accommodation here. As discussed supra, Plaintiff is not seeking an
accommodation that would give co-workers an option to “voluntarily” waive their
seniority rights to accommodate her. She has testified that she will not prepare or
serve alcohol under any circumstance, i.e. even if they refuse. Thus, her requested
accommodation necessarily demands that they agree to do so. But more importantly,
the Sixth Circuit in Virts expressly distinguished Arlington Transit, noting that
27
“Arlington . . . did not involve a collective bargaining agreement and a seniority
system, nor the concerns associated therewith.” Virts, 285 F.3d at 519. “In other
words,” the Sixth Circuit continued, “the array of concerns spoken of by the Supreme
Court in relation to a collective bargaining agreement and the role it plays in
determining whether a proposed accommodation rises to the level of an undue
hardship were not present in Arlington.” Id. At the hearing on the motion for
summary judgment, Plaintiff’s counsel continued to insist (misguidedly) that
Arlington involved a CBA. It did not involve a CBA and Arlington Transit is inapt.
See Prach v. Hollywood Supermarket, Inc., No. 09-cv-13756, 2010 WL 4608782, at
*1 (E.D. Mich. Nov. 5, 2010) (Duggan, J.) (denying plaintiff’s motion for
reconsideration and distinguishing Arlington as not involving a CBA and observing
that the Sixth Circuit’s decision in Virts established that “employers are not required
to accommodate where the proposed accommodations would violate a collective
bargaining agreement”).
Undue hardship, if established by a defendant in response to a plaintiff’s failure
to accommodate claim, will be dispositive of the plaintiff’s claim. Virts instructs that
a proposed accommodation that would violate a collective bargaining agreement
necessarily constitutes an undue hardship. ExpressJet argues that Plaintiff’s requested
accommodation to never be required to prepare/serve/sell alcohol violates the CBA’s
28
seniority provisions in numerous ways.
Plaintiff disagrees that the seniority
provisions of the CBA are implicated by her requested accommodation. The Court
concludes, as discussed infra, that the answer to the question whether or not
ExpressJet can establish undue hardship requires an interpretation of the governing
CBA, and thus Plaintiff’s failure to accommodate claim is preempted (or precluded)
by the RLA.
B.
Preemption/Preclusion of Plaintiff’s Failure to Accommodate Claim
Under the RLA
“The RLA, which was extended in 1936 to cover the airline industry, sets up
a mandatory arbitral mechanism to handle disputes growing out of grievances or out
of the interpretation or application of agreements concerning rates of pay, rules, or
working conditions.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 248 (1994)
(internal quotation marks and citations omitted). “Congress’ purpose in passing the
RLA was to promote stability in labor-management relations by providing a
comprehensive framework for resolving labor disputes.” Id. at 252. The RLA’s
“mandatory arbitral mechanism” addresses two classes of disputes. Id. at 252. “The
first class, those concerning rates of pay, rules or working conditions, are deemed
“major” disputes. Major disputes relate to the formation of collective [bargaining]
agreements or efforts to secure them.” Id. (internal citations and quotation marks
omitted) (alteration in original). “The second class of disputes, known as “minor”
29
disputes, gro[w] out of grievances or out of the interpretation or application of
agreements covering rates of pay, rules, or working conditions. Minor disputes
involve controversies over the meaning of an existing collective bargaining agreement
in a particular fact situation. Thus, major disputes seek to create contractual rights,
minor disputes to enforce them.” Id. at 252-53 (internal citations and quotation marks
omitted) (alteration in original). Minor disputes “must be resolved only through the
RLA mechanisms, including the carrier’s internal dispute-resolution processes and an
adjustment board established by the employer and the unions.” Id. at 253 (internal
citations and quotation marks omitted). “Thus, a determination that [Plaintiff’s]
complaints constitute a minor dispute would pre-empt [her] state law actions.”2 Id.
2
As several courts have recognized, when the plaintiff claims that defendant violated
a federal statute, rather than a state law, the issue is one of preclusion, not preemption.
See, e.g. Brown v. Illinois Central R.R. Co., 254 F.3d 654, 662 (7th Cir. 2001) (Noting
that cases holding that the RLA’s mandatory arbitration provisions preempt state law
claims whose resolution depends upon the interpretation of a CBA, do not necessarily
preclude similar claims brought under federal statutes which require an analysis of
competing federal statutes to determine whether they can be harmonized, but finding
“the preemption question sufficiently similar to the preclusion question to make the
analysis employed in the RLA preemption cases applicable” in the preclusion context)
(collecting cases applying the RLA preemption standard to cases involving a federal
statute). See also Parker v. American Airlines, Inc., 516 F. Supp. 2d 632, 637-38
(N.D. Tex. 2007) (“Arbitral boards established under the RLA enjoy exclusive
jurisdiction to resolve all disputes requiring the construction or application of a CBA
regardless of whether the dispute involves a state-law claim or a federal claim. When
applied to a state-law claim, the RLA is said to preempt. But when applied to a federal
claim, the RLA is said to “preclude.”) (internal quotation marks and citation omitted);
VanSlyck v. GoJet Airlines, LLC, 323 F.R.D. 266, 269 (N.D. Ill. 2018) (observing that
30
See also Smith v. Northwest Airlines, Inc., 141 F. Supp. 2d 936, 940 (W.D. Tenn.
2001) (“The RLA provides that minor disputes initially be settled through grievance
procedures established in the CBA. [45 U.S.C.] § 152 First. If such efforts are
unsuccessful, parties are required to submit to binding arbitration by the NRAB
[National Railroad Adjustment Board] or a privately established arbitration panel. [45
U.S.C.] § 153 First (i). The NRAB has primary and exclusive jurisdiction over minor
disputes.”) (citing Glover v. St. Louis–San Francisco Ry. Co., 393 U.S. 324, 328
(1969)”). See Dotson v. Norfolk Southern R.R. Co., 52 F. App’x 655, 658 (6th Cir.
2002) (“‘If the parties cannot resolve minor disputes on their own, they are submitted
to the National Railroad Adjustment Board [“NRAB”] for final resolution. 45 U.S.C.
§ 153, First (i) & (m). The Board has exclusive jurisdiction over minor disputes, and
a party cannot bypass the Board and take the dispute into federal court, except to
enforce the Board’s award.’”) (quoting CSX Transp., Inc. v. Marquar, 980 F.2d 359,
361 (6th Cir. 1992) and Airline Professionals Ass’n of Intern. Broth. of Teamsters,
Local Union No. 1224, AFL-CIO v. ABX Air, Inc., 274 F.3d 1023, 1028 (6th Cir.
2001) (“[t]he adjustment board exercises exclusive jurisdiction over minor
it is “well settled that the RLA requires mandatory arbitration” of minor disputes, and
noting that “[s]uch disputes are thus ‘preempted’ (if raised in a state claim) or
‘precluded’ (if raised in a federal claim)”). The Court will generally use the term
“preemption” in its analysis of both Plaintiff’s federal and state law claims
understanding this distinction.
31
disputes”)).3 “In determining appropriate preemption standards under the RLA, cases
decided under the Labor Management Relations Act (“LMRA”) provide useful
guidance. Hawaiian Airlines, 512 U.S. at 263 (citing Lingle v. Norge Div. of Magic
Chef, Inc., 486 U.S. 399 (1988) (a case involving preemption under section 301 of the
LMRA).
Defendant contends that Plaintiff’s failure to accommodate claim is a “minor
dispute” that is subject to mandatory arbitration and thus preempted by the RLA. For
the Plaintiff’s claim to be preempted (or precluded) under the RLA, its resolution must
“depend[] on an interpretation of the CBA.” Emswiler v. CSX Transp., Inc., 691 F.3d
782, 792 (6th Cir. 2012). The Sixth Circuit has enunciated a two-step test for
determining whether a claim is preempted under the RLA: (1) does proof of the
plaintiff’s claim require interpretation of the CBA; and (2) is the right claimed by
plaintiff created by the CBA or by state or federal law. Id. If the “claim is not a
3
The RLA requires air carriers to establish “internal dispute-resolution processes and
an adjustment board established by the employer and the unions.” Hawaiian Airlines,
512 U.S. at 253 (citing 45 U.S.C. § 184.). See Jenisio v. Ozark Airlines, Inc.
Retirement Plan for Agent and Clerical Employees, 187 F.3d 970, 972-73 (8th Cir.
1999) (“The RLA requires air carriers and unions to establish a system board of
adjustment (the Board) to resolve all “disputes . . . growing out of . . . the
interpretation or application of agreements concerning rates of pay, rules, or working
conditions.”) (quoting 45 U.S.C. § 184). Thus, in the context of an air carrier, the
arbitral body is often referred to as a “system board,” or “adjustment board.” The
terms are used interchangeably in this Opinion and Order.
32
purely factual question about . . . an employer's conduct and motives and cannot be
decided without interpretation of the CBA,” it is preempted. Id. at 793 (internal
quotation marks and citation omitted). Even if an employer’s defense, e.g. that it had
a non-discriminatory or non-retaliatory reason for discharge, “may involve attention
to the same factual consideration as the employee’s [] claim” the claim will not be
preempted unless the claimed right “depend[s]” upon an interpretation of the CBA.
Smith, 141 F. Supp. 2d at 941 (citing Lingle, 486 U.S. at 407-08) (emphasis in
original). Even if a claim “is grounded upon rights which stem from some source
other than the CBA (such as state law), the claim will be preempted if it cannot be
adjudicated without interpreting the CBA, or if it can be ‘conclusively resolved’ by
interpreting the CBA.” Brown v. Illinois Central R.R. Co., 254 F.3d 654, 658 (7th Cir.
2001).4 A closer examination of a few significant cases best illustrates what type of
4
If “preemption arises in the context of a motion for summary judgment, then the
court extends the inquiry to all stages of the analysis that it would reach when
deciding the case on its merits.” Douglass v. Carlex Glass Co., LLC, No. 14-cv-468,
2015 WL 12532115, at *4 (E.D. Tenn. Sept. 30, 2015) (addressing preemption in the
context of the LMRA) (internal quotation marks and citations omitted). See also
Howard v. Cumberland River Coal Co., 838 F. Supp. 2d 577, 583 (E.D. Ky. 2011)
(“Because this case raises LMRA preemption in the summary judgment context, this
Court must determine whether Howard's prima facie case, Cumberland's legitimate,
non-retaliatory reason, or Howard's proof of pretext requires interpreting the CBA. “).
As the Supreme Court noted in Hawaiian Airlines, LMRA preemption law guides the
analysis in the RLA preemption context because the preemption standards are
“virtually identical.” 512 U.S. at 260. There can be no objection by Plaintiff that the
issues requiring the Court to examine and interpret the CBA arise in the context of
33
dispute will fall into the “preempted/precluded” category and what type of dispute will
be considered “independent” of the CBA and not “preempted/precluded.”
In Hawaiian Airlines, supra, the plaintiff was terminated for refusing to sign
a maintenance record attesting that the repair he had been ordered to make rendered
the airplane fit to fly. 512 U.S. at 249. The employer argued that the plaintiff’s
wrongful discharge and whistleblower claims were preempted because the discharge
was justified under the “just cause” provision of the CBA and that therefore resolving
the claim required interpreting the CBA. 512 U.S. at 251. The Supreme Court
rejected this argument, holding that although the just cause analysis might involve
consideration of many of the same facts as the plaintiff’s whistleblower and wrongful
discharge claims, the state law claims could be resolved without interpreting the CBA
itself, and therefore the claim was “independent” for preemption purposes. Id. at 262.
Preemption will occur only where the state law claim is dependent on an interpretation
the CBA. In the case of the airplane mechanic in Hawaiian Airlines, resolution of
“purely factual questions about an employee’s conduct or an employer’s conduct and
motives d[id] not require [the] court to interpret any term of a collective-bargaining
agreement.” Id. at 261 (internal quotation marks and citation omitted) (alterations
added).
ExpressJet’s burden to establish undue hardship at this summary judgment stage.
34
In Brown, supra, the plaintiff claimed that defendant violated the Americans
With Disabilities Act (“ADA”) by medically disqualifying him from his position and
refusing to accommodate his inability to be available for work seven days a week.
254 F.3d at 656-57. Plaintiff suffered from schizoaffective disorder but claimed that
he was qualified to work his desired position as a trainman with the reasonable
accommodation of being allowed to be unavailable two days per week. Id. The
defendant argued that granting the plaintiff this accommodation would require the
creation of a new position, i.e. one that required availability fewer than 7 days a week,
and that offering such a new position to plaintiff without first offering the new
position to employees with greater seniority would flout the general seniority
provisions established under the CBA. Id. at 660. The Seventh Circuit held that the
plaintiff’s claim under the ADA did require an interpretation of the CBA because it
seemed “quite possible” that the accommodation plaintiff sought would create a new
position that would be required to be subject to bidding under the CBA and that
offering the position to plaintiff without first offering the position to more senior
trainmen “might very well violate the seniority system established by the CBA.” Id.
at 661. Additionally, the Seventh Circuit noted, a determination of whether plaintiff’s
requested accommodation would violate his employer’s seniority system was
potentially dispositive of his ADA claim as a matter of law because “the ADA does
35
not require disabled individuals to be accommodated by sacrificing the collectively
bargained, bona fide seniority rights of other employees.” See also Eckles, 94 F.3d
at 1051 (finding “that collectively bargained seniority rights have a pre-existing
special status in the law and that Congress to date has shown no intent to alter this
status by the duties created under the ADA”).
“[T]he RLA does not automatically preclude all claims brought under
independent federal statutes merely because the same conduct could be characterized
as a violation of the CBA and grieved pursuant to the RLA.” Brown, 254 F.3d at 666.
But “claims brought under federal or state statutes which can be ‘conclusively
resolved’ by an interpretation of a CBA are not truly ‘independent’ from the CBA, and
are therefore precluded by the RLA.” Id. at 667 (citing Hawaiian Airlines, 512 U.S.
at 257-63). The Seventh Circuit summarized:
It remains true as a general rule that the RLA will not bar a plaintiff
from bringing a claim under an independent federal statute in court
(because such claims are generally independent of the CBA and will be
adjudicated under non-CBA standards). However, this rule no longer
applies if the federal claim asserted by the plaintiff depends for its
resolution on the interpretation of a CBA. Such claims are not
“independent” of the CBA regardless of their source, and are therefore
precluded by the RLA.
We close by stressing the limited scope of our holding. A claim brought
under an independent federal statute is precluded by the RLA only if it
can be dispositively resolved through an interpretation of a CBA. This
occurs “only when a provision of the collective bargaining agreement is
the subject of the dispute or the dispute is substantially dependent upon
36
an analysis of the terms of a collective bargaining agreement.”
Therefore, an employer cannot ensure the preclusion of a plaintiff's claim
merely by asserting certain CBA-based defenses to what is essentially a
non-CBA-based claim, or by arguing that the action challenged by the
plaintiff is “arguably justified” by the terms of a CBA. Nor will a claim
be precluded merely because certain provisions of the CBA must be
examined and weighed as a relevant but non-dispositive factor in
deciding a claim or a defense. Therefore, Brown’s claim would not have
been precluded if either the parties did not dispute the interpretation of
the relevant CBA provisions (and Brown had merely argued that he was
entitled to a certain reasonable accommodation under the ADA
notwithstanding anything to the contrary in the CBA), or if the disputed
provisions of the CBA were relevant but not dispositive of Brown’s
claim (as the CBA’s provisions describing job functions are in relation
to the ADA “essential function” determination). However, because in
this case the interpretation of the CBA’s seniority provisions could
dispose of Brown’s entire ADA claim as a matter of law, his claim is not
truly “independent” of the CBA and is precluded by the RLA.
254 F.3d at 667-68 (emphasis in original).
In Carlson v. CSX Transp., Inc., 758 F.3d 819 (7th Cir. 2014), by contrast, the
Seventh Circuit reversed the district court’s dismissal of plaintiff’s Title VII sex
discrimination and retaliation claims, rejecting defendant’s assertion that the RLA
precluded plaintiff’s claims because it acted pursuant to the terms of the CBA rather
than for discriminatory reasons in denying her certain positions that she claimed were
given to less qualified individuals. Plaintiff claimed that she was not asserting any
right under the CBA which in any event did not preclude sex discrimination or
retaliation. Id. at 832. Distinguishing Brown, the Seventh Circuit rejected defendant’s
argument that, like the plaintiff in Brown, an arbitral ruling that plaintiff was not
37
qualified for the positions under the terms of the CBA would conclusively resolve her
claims: “The argument [relying on Brown] is based on a misunderstanding of the
nature of [plaintiff’s] claims. Even if Carlson did not have the qualifications specified
in the collective bargaining agreement, she would still have viable Title VII claims if,
as she alleges, the same potentially disqualifying attributes have been overlooked for
men or for others who have not complained about discrimination.” Id. at 833. The
Seventh Circuit concluded:
As we were careful to clarify in Brown, a claim is not barred simply
because “the action challenged by the plaintiff is ‘arguably justified’ by
the terms of the CBA.” 254 F.3d at 668, quoting Hawaiian Airlines, 512
U.S. at 265–66, 114 S.Ct. 2239. An “employer cannot ensure the
preclusion of a plaintiff's claim merely by asserting certain CBA-based
defenses to what is essentially a non-CBA-based claim.” Id. at 668. And
the fact that a collective bargaining agreement might be consulted in
resolving a plaintiff’s claims is insufficient to trigger RLA preclusion.
Claims are not precluded just “because certain provisions of the CBA
must be examined and weighed as a relevant but non-dispositive factor
in deciding a claim or a defense.” Id.
All this is to say that RLA preclusion, properly applied, does nothing
more than keep disputes actually arising under a collective bargaining
agreement out of court.
758 F.3d at 833.
In Carlson, the Seventh Circuit discussed a number of cases that further
highlight the crux of the preemption inquiry, including Rabé v. United Air Lines, Inc.,
636 F.3d 866, 873 (7th Cir. 2011). In Rabé , the plaintiff (a lesbian) claimed that her
38
supervisor made comments to her that he believed it is “not right to be gay” and
suggesting that he suspected she was a lesbian. Id. at 868. That supervisor initiated
an investigation, which ultimately led to plaintiff’s termination, into plaintiff’s misuse
of travel vouchers, which plaintiff claimed was a pretext for firing her for
discriminatory reasons. Id.
The “principal focus” of plaintiff’s claims, which
alleged that she was treated differently than other employees who were similarly
situated with respect to their use of company travel vouchers, was “on United
managers’ subjective reasons for terminating Rabé’s employment.” Id. at 873. The
Seventh Circuit again distinguished Brown, concluding:
The collective bargaining agreement is relevant to Rabé’s claims because
she alleged that the travel-voucher policy was enforced against her in a
discriminatory manner, but her claims do not call the policy itself into
dispute. See Carmona v. Southwest Airlines, Co., 536 F.3d 344, 349-50
(5th Cir. 2008) (reversing dismissal of flight attendant’s claims of sex
and disability discrimination; claims were not preempted where plaintiff
did not challenge collective bargaining agreements or procedures, but
alleged their discriminatory application); cf. Brown, 254 F.2d at 660-64.
Accordingly, we conclude that Rabé’s claims are not preempted or
precluded by the RLA.
636 F.3d at 873.
Several Sixth Circuit cases address the preemption issue under this same
framework. In Emswiler, the court concluded that plaintiff’s disability discrimination
claim turned on the meaning of the CBA phrase “at his earliest opportunity,” and
concluded that resolving the parties’ competing interpretations of that provision would
39
conclusively determine the plaintiff’s claim. 691 F.3d at 793. The court concluded
that plaintiff’s claims were preempted and plaintiff “was required to exhaust the
RLA-mandated arbitral processes before coming to court.” Id.
In Dotson, supra, the court concluded that plaintiff’s claims of disparate
treatment required interpretation of the seniority provisions of the CBA regarding who
was eligible to “fill in” when needed and also required interpretation of the
requirements for the job of a clerk stenographer. 52 F. App’x at 658. Thus, to dispose
of plaintiff’s claims, the court would be required to look at and interpret terms of the
CBA, and not just evaluate defendant’s motives. Id. The court concluded that
plaintiff’s claims were preempted.
Similarly, in Wellons v. Northwest Airlines, Inc., 25 F. App’x 214 (6th Cir.
2001), the court concluded that plaintiff’s fraud claim required plaintiff to establish
that defendant made a false and material misrepresentation regarding the company’s
leave policy, which would necessitate the court interpreting the CBA to determine the
policies for obtaining leaves of absence. Id. at 218. The court concluded that
plaintiff’s fraud claim was preempted.
Finally, Schirrick v. Butler Aviation, 25 F.3d 1050 (6th Cir. 1994) (table case),
also involved interpretation of a CBA’s seniority provisions. Plaintiff in Schirrick
worked for defendant fueling and servicing aircraft. When she became pregnant, she
40
provided a note from her physician indicating that she should avoid all contact with
noxious fumes. Id. at *1. After receiving this note, defendant placed plaintiff on
disability leave. Plaintiff had hoped to be switched to a dispatcher position during her
pregnancy and sought her union representative’s help in getting another employee to
switch with her, but the other dispatchers had more seniority than plaintiff and the
union could not force them to accommodate plaintiff. Id. at *1. Plaintiff filed suit
against defendant claiming violations of the ELCRA and the state’s Handicappers
Civil Rights Act for the failure to accommodate plaintiff by moving her to the
dispatch position during her pregnancy. Id. at *2. The Sixth Circuit found plaintiff’s
claims preempted by the RLA:
The resolution of this dispute then comes under the terms of the CBA,
because in order to switch positions, seniority of other persons must be
taken into consideration. Plaintiff was requesting to be switched to a
dispatch position, which has a seniority requirement, which is governed
by the CBA. This claim places the terms of the CBA in issue. Plaintiff
also claims that defendant violated the contract by placing her on a leave
of absence. This claim also requires additional examination of the CBA
provisions relating to job classifications and to medical and pregnancy
leave. Unlike Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th Cir.) (en
banc), cert. denied, 493 U.S. 992 (1989), plaintiff’s claim requires
extensive interpretation of the language of the CBA. It is, therefore,
preempted by federal law, McCall v. Chesapeake & Ohio Ry., 844 F.2d
294 (6th Cir.), cert. denied, 488 U.S. 879 (1988); Brown v. American
Airlines, Inc., 593 F.2d 652, 655 (5th Cir. 1979), which indicates that the
claim must be submitted to arbitration according to the RLA, 45 U.S.C.
§ 184..
25 F.3d at *4.
41
Plaintiff relies on Nguyen v. United Air Lines, Inc., No. 09-cv-733, 2010 WL
2901878 (W.D. Mich. July 23, 2010), in which the district court held that plaintiff’s
race, national origin and sex discrimination claims asserted under Title VII were not
preempted by the RLA. Noting that “[n]o requirement exists that the collective
bargaining agreement be totally irrelevant to the dispute” the court observed that
“Plaintiff’s claims cannot be conclusively resolved looking at the collective
bargaining agreement, but instead require a factual determination of Defendant’s acts
and motivations.” Id. at *4. The court distinguished Dotson, supra, concluding that
“[n]one of Plaintiff’s claims require the court to determine his qualifications or the
seniority provisions of the CBA.” Id.
Plaintiff also relies on Smith, supra, but Smith simply applies the undisputed
propositions that: (1) just because a court must refer to the CBA in adjudicating a
claim does not make a claim a minor dispute, and (2) “whether or not an employee has
a Title VII discrimination claim is not necessarily answered by looking at the [CBA].”
141 F. Supp. 2d at 944. Smith is unhelpful. The district court in Smith glosses over
the facts of the case to such a degree that it is impossible to glean from the case
anything other than general well-established (and undisputed) notions, such as “when
a cause of action ultimately concerns an issue unrelated to the CBA, then the RLA
does not pre-empt the plaintiff’s statutory claim.” Id. at 942. Providing no discussion
42
of the factual circumstances of the plaintiff’s claims, the court in Smith simply
concluded that “[i]n determining the validity of Plaintiff’s sexual harassment claim,
parties will find it unnecessary to consult, even in the most cursory manner, terms in
the CBA.” Id. Without factual context, Smith tells this Court nothing about whether
or not in this case, on these facts, the Plaintiff’s claims concern an issue related to the
CBA.
In this case, an examination of the CBA will potentially dispose of Plaintiff’s
claims because under established Sixth Circuit precedent, any accommodation that
“will result in a violation of the seniority provisions of the collective bargaining
agreement, and affect the shift and job preferences and contractual rights of other
employees,” constitutes an undue hardship. Virts, 285 F.3d at 517. As a threshold
matter, the Court clarifies the Plaintiff’s requested accommodation: despite what
Plaintiff may now suggest about her flexibility to consider “other accommodations,”
she testified in her deposition that under no circumstances would she be willing to
violate the tenet of her faith that precludes her from preparing/serving/selling alcohol.
(Stanley Dep. 187:21-188:3.) Thus, Plaintiff requests an accommodation that would:
(1) guarantee Plaintiff that every senior Flight Attendant would agree on every flight
to perform her alcohol service duties, thus foregoing that Flight Attendant’s seniority
rights under the CBA to only perform the duties of Flight Attendant “A” or “B” at his
43
or her election (which ExpressJet argues would violate the governing CBA seniority
provisions), (2) guarantee Plaintiff the right to refuse to assist a more senior Flight
Attendant with alcohol service duties, despite the requirements of the CBA and FAM
that require such cooperation (which ExpressJet argues would violate the governing
CBA seniority provisions), (3) guarantee Plaintiff that if a multi-attendant flight to
which Plaintiff was assigned was downgraded to a single Flight Attendant flight, the
senior Flight Attendant would be required to forego his or her right under the CBA to
decline the downgrade, or at the last minute ExpressJet would have to call up a reserve
to immediately work the flight (which ExpressJet argues would violate the governing
CBA seniority provisions); and (4) guarantee that Plaintiff would never be assigned
to a single Flight Attendant aircraft (which ExpressJet argues would violate the
governing CBA seniority provisions).
Plaintiff does not seek an accommodation that would be observed only insofar
as it does not interfere with ExpressJet’s seniority system or only insofar as fellow
Flight Attendants are agreeable to her request. In fact Plaintiff testified that if a Flight
Attendant refused her request at the outset of a flight, Plaintiff could take an
unexcused “no show” and the departure could be put on hold while ExpressJet
endeavored to call up a reserve (who may or may not be on-site at that time and who
may or may not agree to perform Plaintiff’s job duties for her). Plaintiff sought an
44
“upfront” guarantee from ExpressJet that she would never be required to prepare or
serve alcohol, and expected that other more senior Flight Attendants would surrender
their bargained-for rights and agree to perform that duty for her or that ExpressJet
would alter operations, delay flight departures, call up reserves, or otherwise figure
out a way to accommodate a last minute operational roadblock caused by her refusal
to perform her alcohol service duties. While Plaintiff suggests now that ExpressJet
could somehow determine in advance a fellow Flight Attendant’s agreement to
perform Plaintiff’s job duties for her, ExpressJet rightly responds that it could never
be certain that an “agreeable” Flight Attendant would be available in the event of an
unplanned operational event such as a downgrade of equipment or in the event of an
“agreeable” Flight Attendant’s unplanned unavailability. An “employer [is] not
required to make an effort to accommodate the plaintiff, where any attempt at doing
so would be fruitless inasmuch as the rights of other employees would be violated, and
providing the accommodation would therefore pose an undue burden.” Virts, 285
F.3d at 508. See also Tepper v. Potter, 505 F.3d 508, 514 (6th Cir. 2007) (“For the
purpose of religious accommodations, “[t]o require an employer to bear more than a
de minimis cost in order to accommodate an employee’s religious beliefs is an undue
hardship.’” Id. (quoting Cooper v. Oak Rubber Co., 15 F.3d 1375, 1378 (6th Cir.
1994)).
45
Given the nature of Plaintiff’s requested accommodation, the Court concludes
that Plaintiff’s Title VII and ELCRA claims are dependent upon interpretation of the
CBA. “[B]ecause a CBA, unlike a private contract, is a “‘generalized code to govern
a myriad of cases which the draftsmen cannot wholly anticipate,’[Consolidated Rail
Corp. v. Ry. Labor Execs.’ Ass'n, 491 U.S. 299],at 311–12 [(1989)] (internal citation
omitted), the major-minor dichotomy treats interpretation or application of express
and implied contractual terms indistinguishably.”
Brotherhood of Locomotive
Engineers and Trainmen v. Union Pacific Railroad Co., 879 F.3d 754, 758 (7th Cir.
2017). “Thus, the relevant terms of an agreement are not only those that are written
down; they also include the parties’ practice, usage, and custom as they carry out their
agreement.” Id. See also VanSlyck v. GoJet Airlines, LLC, 323 F.R.D. 266, 271 (N.D.
Ill. 2018) (observing that a “disputed past practice under [a] CBA g[ives] rise to [a]
minor dispute requiring interpretation of CBA in light of disputed past practice,” and
acknowledging that in deciding the preemption issue, “the court may look beyond the
explicit terms of the written agreement . . . [and] must interpret the agreement to
include recognized past practices”). Thus, when determining whether a dispute
requires interpretation of the CBA, and whether preemption is required, past practice
and other written materials related to those practices also must be examined to resolve
the issue.
46
The CBA dictates, and the Plaintiff agrees, that the more senior Flight
Attendant gets to choose whether he or she wants the “A” or “B” position. While there
are instances of voluntary collaboration and cooperation in performing the duties of
both the “A” and “B” positions, Plaintiff’s requested accommodation mandates her
control over the two positions. Both the FAM and FAH, as discussed supra, contain
specific detail regarding the duties of a Flight Attendant to serve alcohol, including
an express directive that Flight Attendant “B” should assist Flight Attendant “A” with
the pre-departure service of beverages, including alcoholic beverage preparation and
service, which Plaintiff refused to do – prompting Mr. Aafifi’s complaint. (FAM §
3-4.1, PgID 1196.) ExpressJet argues that the job duty of Flight Attendants to
participate in the service of alcoholic beverages is an established past practice. In fact,
Flight Attendant Aafifi’s complaint regarding Plaintiff was based upon her refusal to
help him (the senior Flight Attendant) service First Class alcoholic beverages preflight. Interpretation of the CBA in light of past practices is inherently a task for the
system board. VanSlyck, 323 F.R.D. at 271 (“it is for the System Board to evaluate
this past practice in the context of CBA interpretation; not the Court”) (internal
quotation marks and citation omitted).
In this case, the CBA provides that the more senior Flight Attendant may
choose whether to assume the “A” or “B” position on a flight, and the FAM and the
47
FAH contained express instruction that all Flight Attendants are to help with the
preparation and serving of alcoholic beverages. ExpressJet argues that if Plaintiff is
granted an accommodation by ExpressJet relieving her of her duties to prepare and
serve alcohol, and guaranteeing that she will never be called upon to prepare and serve
alcohol, the seniority provisions of the CBA are necessarily implicated (and according
to ExpressJet violated) because the more senior Flight Attendant will be forced to
fully perform (not just “help out” occasionally with hot water or tea or extra peanuts,
Cooper Dep. 92:5-19) the alcohol service duties of both the “A” and “B” Flight
Attendants, in violation of the more senior Flight Attendant’s rights under the CBA
to elect either the “A” or “B” positions for the flight. Plaintiff’s Union representative,
Ms. Cooper, conceded that Plaintiff’s requested accommodation could violate the
seniority provisions of the CBA and could result in the filing of a grievance against
ExpressJet under the CBA’s seniority provisions.
Plaintiff disagrees that her requested accommodation has any effect on the
seniority rights of other Flight Attendants because “everyone has been happy to
accommodate her.” But the undisputed evidence demonstrates that in the short period
of time (approximately three weeks) that she operated under the “duty swapping”
arrangement, at least two Flight Attendants verbalized to their supervisors that they
were not at all happy to assume Plaintiff’s alcohol service duties for her and Mr.
48
Aafifi expressly complained that “as the Senior FA, he is requesting assistance with
first class, but [Plaintiff] is refusing.” (Brown Dep. Attach. 7, PgID 2014.) And
importantly Plaintiff’s Union representative, Ms. Cooper, conceded that she had
received comments from “a few” Flight Attendants regarding Plaintiff’s refusal to
serve alcohol, some of whom were concerned that it would violate seniority rights and
others who indicated they would be willing to work with Plaintiff and serve alcohol
for her. (Cooper Dep. 194:19-195:10.) It is clear to the Court that the resolution of
Plaintiff’s religious accommodation claim will require an interpretation of the
seniority provisions of the CBA. This is a determination committed to the RLA
arbitral mechanism and the appropriate system board. See Brotherhood of Locomotive
Engineers v. Union Pacific Railroad Co., 876 F.3d 261, 268 (7th Cir. 2017), amended
on petition for rehearing 879 F.3d 754 (7th Cir. 2017) (“Wading through the
competing declarations to determine the actual authority the Railroad had to modify
the disciplinary policies, based on past practices, is a job for the arbitrator.”).
To the extent that Plaintiff’s requested accommodation results in a violation of
the seniority provisions of the CBA, or adversely affects the seniority rights of other
Flight Attendants, the “undue hardship” issue, which is a central and dispositive issue
on Plaintiff’s Title VII failure to accommodate claim, will be conclusively resolved
by interpretation of the CBA.
Thus, the claim is a minor dispute subject to
49
adjudication through the RLA arbitration
provisions
and
is
therefore
preempted/precluded.
C.
Plaintiff Has Failed to Create a Genuine Issue of Material Fact on
her Claim of Retaliatory Discharge and Such a Claim In Any Event
Also Would Be Preempted/Precluded Under the RLA
“[T]o prevail on a claim for retaliatory discharge under Title VII, a plaintiff
must first establish a prima facie case by demonstrating that 1) the plaintiff engaged
in an activity protected by Title VII; 2) the exercise of the plaintiff's civil rights was
known to the defendant; 3) the defendant thereafter undertook an employment action
adverse to the plaintiff; and 4) there was a causal connection between the protected
activity and the adverse employment action.” Virts, 285 F.3d at 521. “If the plaintiff
demonstrates a prima facie case, the burden of production shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for its actions. Once the defendant
articulates its reason, the plaintiff, who bears the burden of persuasion throughout the
entire process, must demonstrate that the proffered reason was a mere pretext for
discrimination.” Id. (Internal quotation marks and citation omitted). “The plaintiff
may establish that the proffered reason was a mere pretext by showing that 1) the
stated reason had no basis in fact; 2) the stated reason was not the actual reason; or 3)
the stated reason was insufficient to explain the defendant's action.” Id. “‘[A] reason
cannot be proved to be ‘a pretext for discrimination’ unless it is shown both that the
50
reason was false, and that discrimination was the real reason.’” Id. (quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).
Plaintiff’s retaliation claim is difficult to understand but she reasons as follows:
ExpressJet initially accommodated the Plaintiff’s request not to serve alcohol through
Ms. Brown’s advice to Plaintiff shortly before Plaintiff’s flight was about to depart
on June 2, 2015, to ask her fellow Flight Attendant to perform her alcohol serving
duties for her. After taking TOWOP for the holy month of Ramadan, Plaintiff
returned to work and apparently operated under that procedure for a period of a few
weeks and considered that she had been granted a permanent accommodation not to
serve alcohol in her role as an ExpressJet Flight Attendant. ExpressJet disagrees that
this was a permanent accommodation, and submits that it was a temporary solution
to Plaintiff’s then-immediate problem of having to serve alcohol on her upcoming
flight and to address Plaintiff’s concerns about serving alcohol during the approaching
holy month of Ramadan. But this factual dispute is not material because it is
undisputed, and ExpressJet does not deny, that ExpressJet did permit Plaintiff to
proceed with the swap requests until it received two separate complaints from fellow
Flight Attendants who complained that they were being required to perform Plaintiff’s
alcohol service duties. One of those complaints, the IOR from Ms. Katie Hice,
objected to having to perform Plaintiff’s alcohol service duties for her but also
51
contained remarks regarding “books with foreign writings” that Plaintiff was reading
and comments on Plaintiff’s hijab, that were interpreted by Plaintiff to be bigoted and
charged with racial animus toward Plaintiff’s Muslim religion. Plaintiff’s counsel
explained at the hearing on ExpressJet’s motion to dismiss the Plaintiff’s “theory” of
retaliation:
[T]he revocation of the religious accommodation in response to a
colleague’s complaints is the factual basis for plaintiff’s retaliation
claims. The colleague’s complaints indicate[s] a level of animus that if
ratified by the defendant becomes the basis of the employment action.
And here, paragraph 31 of the complaint makes it clear that plaintiff’s
allegations are that the withdrawl of the religious accommodation was
motivated by animus against Miss Stanley because of her faith.
(ECF No. 31, Transcript of May 17, 2017 Hearing 25:22-26:5.) Paragraph 31 of
Plaintiff’s Complaint alleges: “This revocation of her religious accommodation was
purportedly in response to complaints by a flight attendant about the fact that Ms.
Stanley wore her hijab; possessed religious books in Arabic (“foreign writings”); and
because she did not want to personally serve alcohol.” (Compl. ¶ 31.) Plaintiff’s
counsel stated further at the hearing on the motion to dismiss: “[W]e believe that when
we get ahold of their internal records regarding how this religious accommodation was
revoked, that will indicate the level of animus that makes the revocation of the
religious accommodation independently actionable regardless of whether the
accommodation should have been given in the first place.” (5/17/17 Hr’g Tr. 32:552
10.)
Plaintiff’s retaliation claim fails for several reasons. First, Plaintiff’s retaliation
claim is premised on comments made by a fellow Flight Attendant. In constructing
her retaliation theory, however, Plaintiff has not identified her “protected activity,”
leaving the Court and ExpressJet to fill in this blank for her. Therefore, Plaintiff fails
to create a genuine issue of material fact as to the first element of her prima facie case.
Second, discovery has simply failed to bear out the factual premise for this claim as
Plaintiff has failed to unearth even a scintilla evidence to support the contention that
ExpressJet denied Plaintiff’s request in response to Ms. Hice’s allegedly bigoted
remarks, rather than in response to the issues raised by Ms. Hice’s and Mr. Aafifi’s
(the more senior Flight Attendants) complaints about being forced to perform
Plaintiff’s duties to serve alcohol. The evidence reveals that ExpressJet received two
complaints from Flight Attendants in the relatively short period of time (a few weeks)
that Plaintiff was operating under the swapping of duties procedure, prompting
ExpressJet to investigate the legal and operational implications of granting Plaintiff
a permanent guarantee that would relieve her of her alcohol service duties on each of
her ExpressJet flights. There is not one piece of evidence from which a reasonable
juror could conclude that ExpressJet “ratified” (whatever that might mean in this
context – Plaintiff certainly cites no case law explaining such “retaliation by
53
ratification” theory) Ms. Hice’s comments or in any way acted on or even considered
Ms. Hice’s allegedly bigoted remarks in denying Plaintiff’s request that she be
relieved of her duties to serve alcohol. In fact, ExpressJet granted Plaintiff’s request
to wear her hijab in November, 2013, long before Plaintiff sought an accommodation
that would permit her to refuse to serve alcohol to passengers.
And Plaintiff ignores the undisputed fact that ExpressJet had also received and
was responding to Mr. Aafifi’s complaint, which specifically referenced Plaintiff’s
refusal to comply with his request, as the senior Flight Attendant in the “A” position,
that she assist him with serving alcohol to first class passengers in the pre-departure
phase of the flight. In addition, as discussed supra, Plaintiff’s Union representative,
Ms. Cooper, testified that she received commentes from “a few” Flight Attendants
regarding Plaintiff’s refusal to serve alcohol, some of whom viewed it as violating
seniority rights. (Cooper Dep. 194:19-195:10.) Thus, the complaints appear to have
been more widespread than just those formally reported to ExpressJet. There is
simply nothing in this summary judgment record, beyond pure speculation, on which
a jury could conclude that ExpressJet made the decision to deny Plaintiff’s requested
accommodation because of Ms. Hice’s unsolicited remarks regarding Plaintiff’s
“foreign reading materials” and her hijab. Even assuming there is a legal theory that
would allow such a “retaliation by ratification” theory to proceed, there is simply no
54
factual basis for imputing Ms. Hice’s allegedly discriminatory remarks to ExpressJet.
Plaintiff has devoted little effort to developing a retaliation argument, and
indeed doesn’t even endeavor to address the basic elements of the claim. Issues
“adverted to . . . in a perfunctory manner, unaccompanied by some effort at developed
argumentation,” are deemed waived. Clemente v. Vaslo, 679 F.3d 482, 497 (6th Cir.
2012). “It is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to put flesh on its bones.” Bishop v. Gosiger, Inc., 692
F. Supp. 2d 762, 774 (E.D. Mich. 2010) (quoting McPherson v. Kelsey, 125 F.3d 989,
995–96 (6th Cir. 1997)). Plaintiff “offers no substantive arguments as to the continued
viability of a retaliation claim and fails to link any protected activity to any
discriminatory conduct.” Dotson, 52 F. App’x at 660. Plaintiff has failed to create a
genuine issue of material fact on her retaliation claim and ExpressJet is entitled to
summary judgment on this claim.
ExpressJet reads Plaintiff’s retaliation claim more generously, and assumes for
sake of argument that the “protected activity” was Plaintiff’s request for an
accommodation. ExpressJet submits, and the Court agrees, that such a claim also
would also be preempted by the RLA because it would require interpretation of the
CBA’s seniority provisions in analyzing ExpressJet’s proffered legitimate,
nondiscriminatory reason for refusing to grant Plaintiff’s accommodation and placing
55
her on leave. If the system board were to determine that Plaintiff’s requested
accommodation would violate the seniority provisions of the CBA, this would be
dispositive of any retaliation claim because a “reason cannot be proved to be ‘a pretext
for discrimination’ unless it is shown both that the reason was false, and that
discrimination was the real reason.” Virts, 285 F.3d at 521. A determination pursuant
to the RLA arbitral process that the requested accommodation would in fact violate
the CBA would preclude a finding that ExpressJet’s proffered reason was false.
Accordingly, the retaliation claim could not be decided without interpreting the CBA
and an interpretation of the CBA could be dispositive of Plaintiff’s retaliation claim,
regardless of any evidence of ExpressJet’s motive. See Emswiler, 691 F.3d at 793.
See also Monroe v. Missouri Pacific R. Co., 115 F.3d 514, 518 (7th Cir. 1997)
(analyzing the “Hawaiian Airlines-Lingle preemption standard,” and concluding that
plaintiff’s retaliatory discharge claims were minor disputes involving interpretation
of the CBA and required adjudication under the RLA procedures where analysis of
those claims “necessarily requires interpretation of the CBA in order to determine the
validity of his arguments regarding the Railroad's retaliatory intent”).
IV.
CONCLUSION
Because Plaintiff’s failure to accommodate claims are preempted/precluded by
the RLA and because Plaintiff fails to create a genuine issue of material fact on her
56
retaliation claim, which also would be preempted/precluded by the RLA, the Court
GRANTS ExpressJet’s Motion for Summary Judgment.
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: December 7, 2018
57
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