Bowdry v. United Airlines, Inc., s. 94-1150

• Decision Date: 28 June 1995
• Docket Number: 94-1277,Nos. 94-1150,s. 94-1150
• Parties: 149 L.R.R.M. (BNA) 2714, 130 Lab.Cas. P 11,356 Charles BOWDRY, Crist Ellis, Norma Wong Larkin, Bob Burger, Paul Hart, Rich Kennon, Milton Howard, Norman Rankin, Plaintiffs, and Glenn Mullins, Dane Vannice, Loren Mach, Russell Estill, Ralph Estill, James Hartzer, Plaintiffs-Appellants, v. UNITED AIRLINES, INC., Defendant-Appellee. Charles Bowdry, Crist Ellis, Norma Wong Larkin, Paul Hart, Glenn Mullins, Dane Vannice, Loren Mach, Russell Estill, Ralph Estill, James Hartzer, Milton Howard, Norman Rankin, Plaintiffs, and Bob BURGER and Rich Kennon, Plaintiffs-Appellants, v. UNITED AIRLINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1483

58 F.3d 1483

149 L.R.R.M. (BNA) 2714, 130 Lab.Cas. P 11,356

Charles BOWDRY, Crist Ellis, Norma Wong Larkin, Bob Burger,

Paul Hart, Rich Kennon, Milton Howard, Norman

Rankin, Plaintiffs, and Glenn Mullins, Dane Vannice, Loren Mach, Russell Estill, Ralph Estill, James Hartzer, Plaintiffs-Appellants, v. UNITED AIRLINES, INC., Defendant-Appellee.

Charles Bowdry, Crist Ellis, Norma Wong Larkin, Paul Hart,

Glenn Mullins, Dane Vannice, Loren Mach, Russell

Estill, Ralph Estill, James Hartzer, Milton Howard, Norman Rankin, Plaintiffs, and Bob BURGER and Rich Kennon, Plaintiffs-Appellants, v. UNITED AIRLINES, INC., Defendant-Appellee.

Nos. 94-1150, 94-1277.

United States Court of Appeals, Tenth Circuit.

June 28, 1995.

Elisa Moran (John Mosby with her on the briefs), Denver, CO, for appellants.

Kris J. Kostolansky (Michael D. Nosler and Susan L. Strebel, with him on the brief), Rothgerber, Appel, Powers & Johnson, Denver, CO, for appellee.

Before MOORE, STEPHEN H. ANDERSON, and TACHA, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiffs-appellants, eight former employees of the defunct Frontier Airlines ("employees"), brought this suit against United Airlines, Inc. ("United"), contending that United breached its statutory duty under the Airline Deregulation Act of 1978 (the "Act"), when it failed to give them preferential hiring treatment as mandated under section 43(d) ¹ of the Act. ² The district court dismissed the suit on United's motion for summary judgment, reasoning that as a matter of law the employees had breached their duty to notify United that they were claiming their rights under the Act.

The employees appeal that decision ³ as well as the court's ruling that they are not entitled to a jury trial. Among other things, they contend that the question of their discharge of their duty, and the fulfillment by United of its duty under the Act, is a question of fact in this case, and that, therefore, summary judgment was improper. We agree, and reverse and remand this case to the district court for further proceedings. However, we affirm the district court's striking of the employees' jury demand.

BACKGROUND

When Congress deregulated the airline industry in 1978, its enactment included an employee protection program to assist long-term airline employees who might lose their jobs in the resulting industry adjustments. Specifically, employees who have been working for a covered airline since October 24, 1974, or earlier, and who are subsequently Although the parties disagree on the manner by which protected employees must claim their rights under the Act, they agree that the appellants meet the Act's threshold qualifications; that is, they had been regularly employed for the required period as ramp service workers for Frontier Airlines, and they were terminated due to Frontier's bankruptcy in August 1986.

terminated due to their employer-airline's bankruptcy, are granted preferential hiring by other covered air carriers. ⁴

Shortly after Frontier ceased operating, United invited all former Frontier employees to an open house. Apparently, six of the appellant employees attended and either filled out and submitted an application form with "Frontier" stamped on the front, or were given a card stamped with "Frontier" which they were told to mail in for an application form. See Appellants' App. at 94, 140, 266-68, 303, 322; see also id. at 158-61, 170-73. All appellant-employees claim that the application forms which they submitted contained all requested information, including complete work histories that indicated employment qualifying them for protected status and termination due to Frontier's bankruptcy. However, the application form did not ask whether the employees were "covered," "protected," or "designated" under the Act, and none of the employees expressly referenced the Act or its specific terms.

United filed a motion for summary judgment on the notification issue, contending that the employees had failed to present any evidence that they notified United of their protected status during the application process. The district court agreed and granted United's motion.

DISCUSSION

We review a summary judgment de novo, applying the same standards as the trial court. Allstate Ins. Co. v. Worthington, 46 F.3d 1005, 1007 (10th Cir.1995). Summary judgment is proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We therefore must view the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir.1995).

A.

In relevant part, the Act provides:

(d) Duty to hire protected employees

(1) Each person who is a protected employee of [a covered] air carrier ... who is ... terminated ... (other than for cause) ... shall have first right of hire, regardless of age, in his occupational specialty, by any other air carrier hiring additional employees.... Each such air carrier hiring additional employees shall have a duty to hire such a person before they hire any other person, except ... any of its own furloughed employees....

49 U.S.C.App. Sec. 1552(d). ⁵

The final regulations which the Department of Labor ("DOL") issued to implement the Act define a protected employee who is involuntarily terminated, other than for cause, as a "designated employee." 29 C.F.R. Secs. 220.01(f), 220.10 (1994). In addition to requiring airlines to follow specific criteria for listing and filling vacancies, the regulations require each covered airline to compile a list of all protected employees, to forward the list to the Secretary of Labor, to notify its protected employees that they were so listed, and to issue notice of rights letters to designated employees. Id. Sec. 220.22-220.25, 220.27(a). ⁶

The regulations also set out the following employee responsibilities:

It is the responsibility of each designated employee to:

(a) Make application to any covered air carrier for whom the designated employee desires to work in the time and manner required by such carrier.

(b) To insure that an application previously submitted to a covered air carrier which currently lists a vacancy is in an active status so as to be considered for such vacancy;

(c) To provide a copy, if requested, of the notice of rights to a potential employing air carrier; and

(d) To retain the original of notice of rights for future use.

Id. Sec. 220.30.

1.

Noting the Act's express language regarding the airline's duty, and its silence respecting employee duties, the employees place the burden on United. With respect to the discharge of duties under the Act, the employees postulate that the duty to hire necessarily imposes the choice of means to satisfy that duty upon the carrier. Thus, they emphasize the ease with which United could have ascertained an applicant's status in order to fulfill its duty. For example, United could have asked about status on the application, or it could have requested a notice of rights letter, or it could have checked applicants against the DOL master list which contained the names of all protected employees. ⁷ Appellants' Br. at 9.

Moreover, pointing to the above DOL regulations, the employees argue that section 220.30(a) limits their initial application responsibility strictly to the form, i.e., "time and manner required by [the] carrier," and that United's application form did not ask if they were protected or designated. Further, relying on section 220.30(c), the employees assert that they were required to give formal notice of rights only "if requested," and that United never requested such notice.

Finally, the employees contend that, in any event, United had actual or constructive notice of their protected status by virtue of the fact that they listed qualifying work history and cause of termination. Thus, they urge that, at the very least, whether they fulfilled any duty to notify United is a question of fact, and that the district court erred by requiring specific reference or terminology under the Act as a matter of law.

2.

United contends that its duty to hire only arises after an applicant expressly informs it that the Act applies or that he or she is protected. See Gonzalez v. Aloha Airlines, Inc., 940 F.2d 1312, 1314 (9th Cir.1991), and Crocker v. Piedmont Aviation, Inc., 696 F.Supp. 685, 693 (D.D.C.1988), aff'd on other grounds, 49 F.3d 735 (D.C.Cir.1995).

Additionally, United relies on a DOL opinion letter written to Northwest Airlines stating that, "[i]ndividuals are not assigned designated employee status, they claim the status." Letter from H. Charles Spring, Acting Deputy Under Secretary, U.S. Department of Labor, to Mary P. Weir, Northwest Airlines, Inc. (June 20, 1991), Appellants' App. at 186-87.

Finally, United argues that by requiring airlines to list and notify protected and designated employees, the regulations intend to place the ultimate burden of claiming any rights upon the informed employee who "is in the best position to protect his rights." Appellee's Br. at 13.

3.

In fact, neither the Act nor the regulations are as rigid or as antiseptic as either party asserts.

Thus, we agree with the general proposition that protected employees have an obligation to alert prospective employers of their protected status under the Act. See Gonzalez, 940 F.2d at 1314; Crocker, 696 F.Supp. at 693. ⁸ However, that obligation is only a subset of the employer's express statutory duty to hire protected employees preferentially. The Act clearly applies to all employees who meet its status requirements. The employer's duty to hire is not, therefore, triggered by what the employee does, but by what the employer knows. ⁹

Whether a prospective employer is sufficiently on notice that a particular applicant is a protected employee under the Act is a question of fact to be determined after analyzing all...