Bailey v. United Airlines

• Decision Date: 01 February 2002
• Docket Number: No. 00-2537.,00-2537.
• Citation: 279 F.3d 194
• Parties: James BAILEY, Appellant, v. UNITED AIRLINES.
• Court: U.S. Court of Appeals — Third Circuit

279 F.3d 194

James BAILEY, Appellant, v. UNITED AIRLINES.

No. 00-2537.

United States Court of Appeals, Third Circuit.

Argued July 11, 2001.

Filed February 1, 2002.

COPYRIGHT MATERIAL OMITTED

Michael S. Haber (Argued), New York, NY, Michael J. Torchia, Semanoff, Ormsby and Greenberg, LLP, Jenkintown, PA, Attorneys for Appellant.

Otto W. Immel, Jr. (Argued), Alan D. Berkowitz, Jane W. Voegele, Dechert, Price & Rhoads, Philadelphia, PA, Attorneys for Appellee.

Robert J. Gregory, Senior Attorney, Gwendolyn Young Reams, Philip B. Sklover, Lorraine C. Davis, Associate General, Counsel Equal Employment Opportunity Commission Washington, DC, Attorneys for Amicus-Appellant Equal Employment Opportunity Commission.

Before SLOVITER, ALITO and GREENBERG Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant James Bailey filed suit in the United States District Court for the Eastern District of Pennsylvania against his former employer United Airlines, Inc. ("United"), alleging he was terminated in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. (2001). The District Court granted United's motion for summary judgment and Bailey appeals.

I. FACTS

Bailey worked as a commercial airline pilot for Pan American World Airways ("Pan Am") for most of his career. In 1991, after Pan Am declared bankruptcy, United purchased some of Pan Am's South American routes and agreed to hire a number of Pan Am's former pilots. Bailey was one of the Pan Am pilots hired by United. Bailey was 59 years old at the time United hired him in October 1992.

Based upon his seniority, Bailey was able to bid for a first officer, or copilot, position. To qualify to fly as a first officer, Bailey was required to pass United's first officer training. He passed the training in November 1992 and began working as a first officer. Bailey turned 60 years old on March 5, 1993, four months after completing his first officer training with United.

Federal Aviation Regulations provide that "[n]o person may serve as a pilot on an airplane ... if that person has reached his 60th birthday." 14 C.F.R. § 121.383(c) (2001). In compliance with this regulation, United notified Bailey that he was no longer qualified to work as a first officer. However, Bailey was qualified to bid for a position as a second officer, or flight engineer, upon the successful completion of the transition training required by United.

United's second officer training consists of a combination of ground school classroom work and participation in aircraft simulator exercises. After probationary second officer candidates complete this preliminary training, they take an oral and written exam and a simulator "check ride," which is the final test designed to present candidates with various real-life flying conditions. According to United's policy, if a candidate fails a check ride or requires excessive additional training periods, a Board of Review is convened and can render a decision that could lead to "remedial action, up to and including discharge" of the candidate. Supp.App. at 17.

Bailey began the probationary second officer training in April 1993 and received a number of low ratings ("unsatisfactory" or "needs improvement") during the training exercises. A written evaluation by Bailey's trainer, James Grimm, commented that Bailey was not able to perform standard operating procedures. The authenticity of this evaluation has been challenged by Bailey. Grimm's deposition testimony was that he had created and signed only one evaluation form for Bailey, but when confronted with a second version of the evaluation uncovered by Bailey, Grimm conceded that another evaluation existed. The second version of Bailey's evaluation suggested that Bailey performed the standard operating procedures "with uncertainty and slowness," which resulted in his failure to complete certain items, but did not say he was unable to perform standard operating procedures. App. at 115. However, Grimm gave Bailey a rating of "needs improvement" on both versions of the evaluation.

In later evaluations, Bailey continued to have difficulties with ground operations. Training records report that Bailey was slow and appeared "unsure of how to deal with unusual or irregular problems during all phases of ground operations." Supp. App. at 32. However, one training evaluator, W.J. Pierson, commented that Bailey "has worked incredibly hard to master the DC-10, and he'll be a fine second officer for [United]." See Bailey v. United Airlines, Inc., 101 F.Supp.2d 311, 312-13 (E.D.Pa.2000). Bailey also received an "above standard" rating in "objectivity/motivation/industry." Id.

On April 30, 1993, Bailey failed his simulator check ride. Bailey was informed by his instructor immediately after the check ride that he did not pass. He was also told that United would probably hold a Board of Review, although Bailey maintains he was initially given assurances that United would provide additional simulator training and another check ride. Bailey claims he returned home to Pennsylvania for the weekend knowing some action would be taken, but confident that he would be given another chance. The Board of Review met on May 4, 1993 to evaluate Bailey's performance. After considering Bailey's record and training, the Board decided to terminate Bailey's employment.

Upon Bailey's return to work after the weekend, a United official told Bailey things "didn't look good" and that the Board was not going to recommend him for further training. Supp.App. at 15. Bailey testified that Eric Clethen, the new pilot supervisor, called him "a day later," approximately May 4, 1993, and told him to report to the chief pilot's office in San Francisco the next day. Supp.App. at 15. The substance of the telephone conversation is the subject of dispute. The parties agree that Bailey informed Clethen that he could not make a meeting on May 5th, but would be available on May 6, 1993. Bailey arrived in San Francisco on May 6th and met with Captain Daly, the chief pilot, and Clethen. Clethen gave Bailey the option of resigning his employment upon the condition that he sign a release of claims against United or have his employment terminated. Bailey refused to sign the release and he was terminated.

Bailey filed a charge of discrimination with the EEOC on March 2, 1994, claiming that United terminated his employment in violation of the ADEA. The ADEA requires that a charge of discrimination be filed with the Equal Employment Opportunity Commission ("EEOC") prior to the initiation of a lawsuit in federal court so that the EEOC has an opportunity to resolve the dispute. See Bihler v. Singer Co., 710 F.2d 96, 97 (3d Cir.1983). In a "deferral" state such as Pennsylvania that has a procedure for conciliation by a state agency, the EEOC charge must be filed within 300 days after the alleged unlawful employment practice occurs. 29 U.S.C. § 626(d)(2); Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1413-14 (3d Cir.1991) (en banc).

Bailey commenced this action on a pro se basis on August 14, 1997 and later filed two amended complaints.¹ After Bailey retained counsel, he commenced discovery. On June 4, 1999, United submitted a motion for summary judgment. The Magistrate Judge granted an extension of the discovery deadline and dismissed United's motion for summary judgment without prejudice to re-file at the close of discovery. On September 27, 1999, Bailey filed another motion to extend discovery and a motion to amend the complaint to assert claims dealing with fraud, evidence tampering, and civil RICO. The Magistrate Judge denied both of these motions. United then renewed its motion for summary judgment. After all briefing was complete on June 13, 2000, the District Court granted United's renewed motion for summary judgment, finding that Bailey's claim was time-barred. Bailey sought reconsideration, which the District Court denied on July 28, 2000. Bailey timely filed this appeal on August 25, 2000. Bailey seeks reversal of the grant of summary judgment, as well as several other determinations of the Magistrate Judge and the District Court.

II. DISCUSSION

Summary judgment is appropriate where "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, a court must "draw[] all reasonable inferences from the underlying facts in the light most favorable to the non-moving party." See Battaglia v. McKendry, 233 F.3d 720, 722 (3d Cir.2000) (quotations omitted). A district court's grant of summary judgment is subject to plenary review. See Pittston Co. Ultramar America Ltd. v. Allianz Ins. Co., 124 F.3d 508, 515 (3d Cir.1997).

The threshold inquiry in evaluating the timeliness of Bailey's ADEA claim is to identify the precise unlawful employment practice of which he complains. See Del. State Coll. v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). Here, Bailey claims that United's decision to terminate his employment was motivated by unlawful age discrimination.

It is well established that for purposes of filing a charge claiming unlawful discharge, the limitations period must be measured from the date on which the employee was advised of the decision to terminate his or her employment. See Ricks, 449 U.S. at 258-259, 262, 101 S.Ct. 498 (holding that the limitations period commenced to run when the decision not to offer tenure was made and communicated to plaintiff); Bouker v. CIGNA Corp., 1994 WL 594273, at *2 (E.D.Pa. Oct.24, 1994) (explaining that the applicable limitations period begins to run "when the employee knew or should have known of the harm inflicted by the adverse employment decision"), aff'd, 70 F.3d 1254 (3d Cir.1995); Guarnaccia v. John Wanamaker, Inc., 1990 WL 90490, at *3 (E.D.Pa.1990) (limitations period "must be measured from the date the plaintiff was advised h...