Bader v. United Airlines, Inc., 14 C 2589

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Citation113 F.Supp.3d 981
Docket NumberNo. 14 C 2589,14 C 2589
Parties Douglas Bader, Charles Doyle, and Ralph J. Rina, Plaintiff, v. United Airlines, Inc., United Continental Holdings, Inc., Defendants.
Decision Date09 July 2015

113 F.Supp.3d 981

Douglas Bader, Charles Doyle, and Ralph J. Rina, Plaintiff,
United Airlines, Inc., United Continental Holdings, Inc., Defendants.

No. 14 C 2589

United States District Court, N.D. Illinois, Eastern Division.

Signed July 9, 2015

113 F.Supp.3d 983

Kathy Dianne Bailey, Bailey Law, PC, Alexandria, VA, David A. Axelrod, David A. Axelrod & Associates P.C., Chicago, IL, for Plaintiff.

Gary S. Kaplan, Ada W. Dolph, Seyfarth Shaw LLP, Chicago, IL, for Defendants.


JORGE L. ALONSO, United States District Judge

Plaintiffs, Douglas Bader, Charles Doyle, and Ralph Rina, have brought this

113 F.Supp.3d 984

action against defendants, United Airlines, Inc. and its parent company, United Continental Holdings, Inc. (collectively, "United"), making claims of age discrimination and retaliation under the Age Discrimination in Employment Act ("ADEA"), age discrimination under civil rights statutes of the plaintiffs' respective states, wrongful discharge, breach of the covenant of good faith and fair dealing, intentional infliction of emotional distress, and interference with prospective economic advantage. United has moved to dismiss under Rule 12(b)(6), contending that the plaintiffs' claims are precluded, preempted or legally insufficient. For the reasons set forth below, the motion is granted in part and denied in part.


Plaintiffs were all Pilot Instructor/Evaluators ("I/Es") at Continental Airlines ("Continental") when Continental merged with United. United's longstanding practice, contrary to Continental's, is to require all I/Es to be "line-qualified," i.e., to be qualified to fly a revenue-producing flight carrying paying passengers. Federal Aviation Administration ("FAA") regulations require all line-qualified pilots to be under the age of 65.

After the merger, United and the Airline Pilots Association, International, plaintiffs' union, negotiated a collective bargaining agreement, the United Pilots Agreement ("UPA"). The UPA, consistently with United's pre-merger practice, required all I/Es to be line-qualified. United and ALPA implemented the line-qualification requirement via Letter of Agreement 18 (Compl. Ex. A), which effectively terminated I/Es such as the plaintiffs, who had reached the FAA mandatory retirement age, after a 12–month grace period.

Plaintiffs contend that United's requirement that all I/Es be line-qualified is totally arbitrary and age-discriminatory. United now moves to dismiss on various grounds.


"A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir.2012). Under Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (ellipsis omitted).

Under federal notice-pleading standards, a plaintiff's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. Stated differently, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). "In reviewing the sufficiency of a complaint under the plausibility standard, [courts must] accept the well-pleaded facts in the complaint as true, but [they] ‘need[ ] not accept as true legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.’ "

113 F.Supp.3d 985

Alam v. Miller Brewing Co., 709 F.3d 662, 665–66 (7th Cir.2013) (quoting Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.2009) ).


A. Preemption and Preclusion By Fair Treatment of Experienced Pilots Act

United claims that all of the plaintiffs' claims are preempted by the Fair Treatment of Experienced Pilots Act ("FTEPA") and associated federal regulations. The FTEPA requires all line pilots (but not I/Es) to be under the age of 65, 49 U.S.C. § 44729(a), and it requires air carriers to "continue to use pilot training and qualification programs approved by the [FAA], with specific emphasis on initial and recurrent training and qualification of pilots who have attained 60 years of age," 49 U.S.C. § 44729(h). Further, the FTEPA contains an express preemption provision that provides that "[a]n action taken in conformance with this section ... 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," 49 U.S.C. § 44729(e)(2).

The FAA has authority to promulgate safety regulations governing commercial air operations. 49 U.S.C. § 44701. Part 121 of the FAA's Federal Aviation Regulations, 14 C.F.R. § 121 et seq , regulates the certification and operation of aircraft in commercial aviation. Although Part 121 includes extensive rules concerning training programs, it also permits air carriers to formulate an Advanced Qualification Plan ("AQP") for "qualifying, training certifying, and otherwise ensuring competency of crewmembers, ... instructors, and evaluators," subject to FAA approval of the Plan, see 14 C.F.R. § 121.909. Allowing carriers to develop their own training programs is intended to "encourage[ ] innovation" in training methods and ultimately "enhance professional qualifications to a level above the present standards that are provided in part[ ] 121." (Mot. Dismiss, Ex. 2. at i). Once an AQP is approved, the carrier must "[c]omply with all aspects of the approved AQP." (Id. at 2).

United contends that its AQP requires its I/Es to be line-qualified, and the FTEPA requires United to comply with its AQP, so plaintiffs' claims are preempted or precluded by the FTEPA.

This argument fails at several points. First, United has not demonstrated that its AQP requires I/Es to be line-qualified. It cites myriad provisions of various statutes and FAA advisory and guidance documents that at least arguably counsel in favor of such a requirement, but it has pointed to no provision of any document that it submitted to the FAA for approval as part of its AQP that requires I/Es to be line-qualified. (See generally Compl., Ex. 2 at 55 (describing process of "AQP Approval and Documentation").)

Second, even if United had produced any such document, this Court could not consider it at the motion to dismiss stage. At this stage, the Court can only consider the allegations of the complaint, documents that are attached to plaintiffs' complaint or to which the complaint explicitly refers, and documents of which the Court can take judicial notice. United's AQP is none of those.

Finally, even if the AQP clearly requires I/Es to be line-qualified, United has not explained why the FTEPA preempts plaintiffs' claim that the line-qualification requirement violated their rights when plaintiffs are I/Es, not pilots, and the FTEPA is directed to the requirements for pilots to fly revenue flights for commercial air carriers beyond the age of 60. See 49 U.S.C. § 44729 ; c.f. E.E.O.C. v. Boeing Co., 843 F.2d 1213, 1220 (9th Cir.1988). United has

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cited little authority other than the preemption and safety provisions of the FTEPA, 49 U.S.C. § 44729(e)(2) and (h)(1), to support its position that it must adhere to whatever aspect of its AQP requires I/Es to be line-qualified, or violate the FTEPA. The mere citation to these bare provisions is not sufficient to convince the Court that they have the effect United ascribes to them.

Plaintiffs assert that the case United cites, Jones v. Air Line Pilots Ass'n, Int'l, 642 F.3d 1100 (D.C.Cir.2011), provides no support for United in this case because "[i]n Jones, the plaintiff was a pilot who was suing because he was terminated as a pilot." (Resp. at 5.) In other words, the case is consistent with plaintiffs' position that the FTEPA applies only to pilots, and extending it to the I/Es who train pilots is simply a bridge too far. The Court agrees. At this stage, the Court cannot conclude that plaintiffs' claims are preempted by the FTEPA.

B. Reasonable Factor Other Than Age Under ADEA

United next contends that its line-flying requirement for I/Es is a reasonable factor other than age ("RFOA"). See 29 U.S.C. § 623(f). United may well be correct, but it may not raise this defense at this stage of the...

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