Emory v. United Air Lines, Inc.

• Decision Date: 21 October 2011
• Docket Number: Civil Action No. 08–2227 (RBW).
• Citation: 821 F.Supp.2d 200,113 Fair Empl.Prac.Cas. (BNA) 1046
• Parties: George EMORY, et al., Plaintiffs, v. UNITED AIR LINES, INC. and Air Line Pilots Association, International, Defendants.
• Court: U.S. District Court — District of Columbia

113 Fair Empl.Prac.Cas. (BNA) 1046

821 F.Supp.2d 200

George EMORY, et al., Plaintiffs,

v.UNITED AIR LINES, INC. and Air Line Pilots Association, International, Defendants.

Civil Action No. 08–2227 (RBW).

United States District Court, District of Columbia.

Oct. 21, 2011.

John S. Lopatto, III, Washington, DC, for Plaintiff.

Eric J. Janson, Seyfarth Shaw, LLP, Washington, DC Gary S. Kaplan, Seyfarth Shaw, LLP, Chicago, IL, Marta Wagner, Granville Clayton Warner, Air Line Pilots Association, International, Herndon, VA, Jonathan Asher Cohen, Air Line Pilots Association, International, Washington, DC, for Defendant.

Tamara Lynn Ulrich, U.S. Department of Justice, Washington, DC, for Interested Party, United States.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

George Emory, Larry Voll, Lorenzo Sein, Robert Bennett, David Hayes, Dennis Higham, Richard Lanier, and Dean May, the plaintiffs in this civil suit, seek redress based on (1) alleged discrimination on the basis of age in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621–634 (2006), by United Airlines (“United”) and the Air Line Pilots Association, International (“ALPA”), First Amended Complaint (“Am. Compl.”) ¶¶ 66–72; (2) alleged fraud and misrepresentation by United and the ALPA, Am. Compl. ¶¶ 80–92; ¹ (3) the ALPA's alleged breach of the duty of fair representation under the Railway Labor Act (the “RLA”), 45 U.S.C. §§ 151– 88 (2006), id. ¶¶ 73–75; and (4) United's alleged wrongful discharge of the plaintiffs based on their age, id. ¶¶ 76–79. The plaintiffs' claims arise out of their “involuntary termination” by United in December 2007, id. ¶ 11, in accordance with a federal regulation promulgated by the Federal Aviation Administration (“FAA”) that “barred pilots from flying commercial, passenger aircrafts once they reached the age of 60,” id. ¶ 19(a) (citing 14 C.F.R. § 121.383(c) (2007) (“Age 60 Rule”)), even “though [the d]efendants knew or should have known that each [plaintiff purportedly] met the statutory requisites” of the Fair Treatment of Experienced Pilots Act (“FTEPA” or “Act”), Pub.L. No. 110–135, 121 Stat. 1450 (2007) (codified at 49 U.S.C. § 44729), id. ¶ 11. The FTEPA was enacted on December 13, 2007, and it permits pilots to fly commercial, passenger aircraft until the age of sixty-five. Id. ¶ 22. The plaintiffs therefore claim that they “had the statutory right to continue to fly in their positions [as pilots] without loss of seniority.” Id. ¶ 11. Consequently, the plaintiffs seek declaratory relief, as well as compensatory and punitive damages as redress for their terminations. Id. ¶¶ 68, 72, 75, 79, 92.

The plaintiffs also challenge the constitutionality of the FTEPA as “depriv [ing them] ... of Due Process for denial of [c]ontract and [p]roperty rights under the Fifth Amendment,” id. ¶ 94, “den[ying them] ... fair treatment under the Equal Protection Clause of the Fifth Amendment,” id. ¶ 95, and constituting a “Bill of Attainder in violation of Article I, Section 9 of the U.S. Constitution ... [because it] imposes severe penal measures—loss of the highest career earnings in a profession—on a very small definable group of plaintiff pilots,” id. ¶ 96.

Currently before the Court are the following motions: a motion to dismiss for failure to state a claim upon which relief can be granted filed by defendant ALPA, a motion for summary judgment filed by defendant United, and a cross-motion for partial summary judgment filed by the plaintiffs. Upon carefully considering the plaintiffs' First Amended Complaint, the parties' motions, and all memoranda and exhibits submitted with these filings,² the Court concludes that it must grant the ALPA's motion, grant in part and deny in part United's motion, and deny the plaintiffs' motion for the reasons that follow.

I. Background ³

A. Statutory and Regulatory Framework

A brief overview of the statutes and regulations at issue will help elucidate the plaintiffs' allegations in this case. In 1959 the FAA adopted the Age 60 Rule, which prohibited pilots from flying commercial airliners past their sixtieth birthday. See 14 C.F.R. § 121.383(c). ⁴ The FTEPA abrogated the Age 60 Rule, providing that the Age 60 Rule “shall cease to be effective” on the FTEPA's enactment date of December 13, 2007, and permitted pilots to fly commercial airliners until they reached the age of sixty-five. See 49 U.S.C. § 44729(a), (d). However, the FTEPA has only prospective application and contains a “non-retroactivity” provision that significantly limits the ability of pilots who turned sixty before the FTEPA's passage to return to work as pilots. The non-retroactivity provision states:

No person who has attained 60 years of age before the date of enactment of this section may serve as a pilot for an air carrier engaged in covered operations unless—

(A) such person is in the employment of that air carrier in such operations on such date of enactment as a required flight deck crew member; or

(B) such person is newly hired by an air carrier as a pilot on or after such date of enactment without credit for prior seniority or prior longevity for benefits or other terms related to length of service prior to the date of rehire under any labor agreement or employment policies of the air carrier.

49 U.S.C. § 44729(e)(1). The FTEPA defines “covered operations” as “operations under part 121 of title 14, Code of Federal Regulations” (“Part 121 operations”), § 44729(b), which are the same operations formerly covered by the Age 60 Rule. Thus, pilots who turned sixty before December 13, 2007, the date of the FTEPA's enactment, may fly commercial airliners only if they were employed as a “required flight deck crew member” in Part 121 operations on December 13, 2007, or if they are newly hired on or after December 13, 2007, and work without credit for any prior experience. The FTEPA also contains a “protection for compliance” provision. This provision states that

[a]n action taken in conformance with [the FTEPA] ... or taken prior to the date of enactment of this section in conformance with [the Age 60 Rule], may not serve as a basis for liability or relief in a proceeding, brought under any employment law or regulation, before any court or agency of the United States or of any State or locality.

Id. § 44729(e)(2).

B. Factual and Procedural Background

United is an airline passenger carrier engaged in Part 121 operations, Am. Compl. ¶ 14(a), and the ALPA is a labor organization that represents “all members of the airline piloting profession,” id. ¶ 15(a). At all times relevant to this litigation, the ALPA was the collective bargaining representative for pilots employed by United under a Collective Bargaining Agreement (“CBA”). Id. ¶ 14(a). Also, at all times relevant to this case, each plaintiff was an intended beneficiary or third-party beneficiary of the CBA. Id. The CBA therefore governed “[t]he contractual relationship between each plaintiff pilot as an employee and defendant United as an employer.” Id. ¶ 14(b).

Each of the eight plaintiffs was born in December 1947 and was employed by United as either a captain or first officer at the time each of them turned sixty years of age, their birthdays all falling on dates between December 3 and December 11, 2007. Id. ¶¶ 12–13. On their sixtieth birthday, each was removed from active flight status but retained their seniority numbers and remained employed by United until December 31, 2007, when the plaintiffs were all “involuntarily terminated.” Id. ¶ 12. It was the customary practice of United to permit pilots who reached their sixtieth birthdates to remain as United employees “until the last day of the month in which each turned 60.” Id. ¶ 20.

None of the plaintiffs, as they approached their sixtieth birthday, sought a transfer to a different position within United. United Air Lines, Inc.'s Statement of Material Facts In Support of Its Motion for Summary Judgment (“United's SOF”) ¶¶ 12–13.⁵ However, in anticipation of the FTEPA's enactment, each plaintiff did request in December 2007 that they continue as pilots after December 12, 2007. Am. Compl. ¶¶ 50–56. But United and the ALPA interpreted the non-retroactivity limitation provided by exception (A) of the FTEPA to apply solely to flight engineers, and denied the plaintiffs' requests. Id. ¶¶ 24, 25, 28(a), 49, 50(a). George Emory, Larry Voll, and John Bennett also requested, and Larry Voll actually applied on United's Skynet Flight Operations website (“Skynet”) for a new hire pilot position with United in late December pursuant to exception (B).⁶ Id. ¶¶ 51(f), 53(d); Pls. Mem., Nov. 4, 2009 Sworn Declaration of John Bennett (“Bennett Decl.”) at 2. On December 20, 2007, the FAA issued an Information for Operators (“InFO”) entitled “Legal Interpretation Regarding the Age 65 Law,” which noted that

a person who was in the employment of an air carrier when he/she attained 60 years of age before December 13, 2007, but who was not conducting part 121 operations for the carrier as a required flight deck crew member may not continue employment with the air carrier[, but t]o continue employment as a pilot under [exception (B) ], that person must be treated by the carrier as a ‘newly hired pilot ... without credit for prior seniority’....Am. Compl. ¶ 51(g); Pls.' Mem., Exhibit (“Ex.”) 1 (Dec. 20, 2007 InFO). Furthermore, on March 13, 2008, the FAA published another informational statement advising air carriers that check airmen (also known as second officers) over age sixty and employed as of December 13, 2007, were reasonably considered “required flight deck crew members.” ⁷ Am. Compl. ¶ 40.

The plaintiffs repeatedly communicated with United and the ALPA both before and after the FTEPA's enactment regarding the FTEPA's application to them and the continuation of their employment. See id. ¶¶ 51–56; Pls.' Mem., Bennett Decl. at 2; Pls.' Mem., Nov. 10, 2009 Statement of Dean May Concerning the...