Carswell v. Air Line Pilots Ass'n Intern.

• Decision Date: 04 March 2008
• Docket Number: Civil Action No. 07-651 (RBW).
• Citation: 540 F.Supp.2d 107
• Parties: Gene H. CARSWELL, Plaintiff, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 107

540 F.Supp.2d 107

Gene H. CARSWELL, Plaintiff, v. AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, et al., Defendants.

Civil Action No. 07-651 (RBW).

United States District Court, District of Columbia.

March 4, 2008.

COPYRIGHT MATERIAL OMITTED

Rosemary Dettling, Federal Employee Legal Services Attorney, Washington, DC, Joanne Dekker Donohue, Hamilton, VA, for Plaintiff.

David Michael Semanchik, Granville Clayton Warner, Air Line Pilots Association, Int'l, Herndon, VA, Mark A. Dombroff, Thomas Barton Almy, Dombroff & Gilmore, P.C., McLean, VA, Erin Flaharty Lewin, U.S. Airways Group, Inc., Temple, AZ, Leon Dayan, Joshua B. Shiffrin, Bredhoff & Kaiser, P.L.L.C., Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

Gene H. Carswell, the plaintiff in this civil lawsuit, seeks "to remedy [alleged] discrimination on the basis of age[] in violation of the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 62[1-34 (2000)] ( [the] `ADEA')," as well as alleged "breach of [the] duty of fair representation and breach of contract" under the Railway Labor Act, 45 U.S.C. §§ 151-88 (2000), by U.S. Airways Group, Inc. ("US Airways"), the Air Line Pilots Association, International (the "ALPA"), and the American Federation of Labor and Congress of Industrial Organizations (the "AFL-CIO," and collectively with the ALPA the "Union Defendants"). Plaintiff's First Amended Complaint (the "Am. Compl.") ¶ 1.<sup>1</sup> The plaintiffs claims arise out of the "forced termination[]" of the plaintiff by U.S. Airways in 2007, id., in accordance with a federal regulation promulgated by the Federal Aviation Administration (the "FAA") that "bar[red] individuals who have reached their 60th birthday from serving as pilots or co[-]pilots in flight operations covered by [the regulation]," id. ¶ 9 (citing 14 C.F.R. § 121.383(c) (the "Age 60 Rule")). Specifically, "the [d]efendants [allegedly] refused to protect the [p]laintiffs employment status by retaining him ..., supporting his [request for an exemption from the `Age 60' Rule], or lobbying for a change to the Age 60 Rule." Id. ¶ 15. Consequently, the plaintiff "seeks declaratory and injunctive relief," as well as compensatory damages. Id. ¶ 1.

All three defendants have filed separate motions to dismiss the plaintiff's amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). US Airways Group, Inc.'s Rule 12(b)(6) Motion to Dismiss Plaintiff's Amended Complaint and Memorandum of Points and Authorities in Support Thereof (the "US Airways Mot.") at 1, Motion to Dismiss Pursuant to [Federal Rule of Civil Procedure] 12([b])(6) of Defendant Air Line Pilots Association, Int'l at 1, Defendant American Federation of Labor and Congress of Industrial Organizations' Motion to Dismiss Plaintiff's Amended Complaint at 1.² After carefully considering the plaintiff's amended complaint, the parties' motions, and all memoranda and exhibits relevant thereto,³ the Court concludes for the reasons that follow that it must grant all three motions to dismiss.

I. Background

The following facts are either alleged by the plaintiff in his amended complaint or are matters of public record. "The FAA first promulgated the Age 60 Rule in 1959 pursuant to its mandate under the Federal Aviation Act of 1958[, 49 U.S.C. §§ 40101-50105 (2000),] to ensure air safety." Prof'l Pilots Federation v. Fed. Aviation Admin., 118 F.3d 758, 760 (D.C.Cir.1997) (citing 24 Fed.Reg. 9767 (Dec. 5, 1959)). The rule provided in pertinent part that "[n]o certificate holder [could] use the services of any person as a pilot on an airplane engaged in operations under this part if that person ha[d] reached his 60th birthday," and that "[n]o person [could] serve as a pilot on an airplane engaged in operations under this part if that person ha[d] reached his 60th birthday." 14 C.F.R. § 121.383(c). Despite a litany of challenges to the propriety of the Age 60 Rule both in this circuit and beyond,⁴ the rule remained in effect for over forty years.

On December 13, 2007, Congress passed the Fair Treatment for Experienced Pilots Act, Pub.L. No. 110-135, 121 Stat. 1450 (2007), which amended 49 U.S.C. § 44729. Under the amended § 44729, "a pilot may serve in multicrew covered operations until attaining 65 years of age," 49 U.S.C. § 44729(a), and the Age 60 Rule is no longer in effect, id. § 44729(e). The amended statute also contains a non-retroactivity provision, which states that "[n]o 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" the pilot was employed as a "required flight deck crew member" when the law went into effect or is "newly hired by an air carrier as a pilot" after the enactment of the law and receives no "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." Id. § 44729(e)(1). The statute further provides that "[a]n action taken in conformance with ... [14 C.F.R. § 121.383(c)]" when that regulation was still in effect "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).

The plaintiff, "a resident of Hendersonville, North Carolina," Am. Compl. ¶ 61, was hired by U.S. Airways, "a [c]orporation headquartered in Tempe, Arizona, but having major operations in Washington, D.C.," id. ¶ 1 in 1977, and remained a U.S. Airways employee for 29 years, id. ¶ 62. At the time of his hiring, both the ALPA and U.S. Airways warned the plaintiff "that he had to retire when he reached [age sixty]," id. ¶ 63, and mandatory retirement at the age of sixty is a provision of the collective bargaining agreement between the ALPA and U.S. Airways (the "CBA"), id. ¶ 65. When the plaintiff reached his 60th birthday on January 12, 2007, id. ¶ 64, he "applied for an exemption [from the Age 60 Rule] ... and asked U.S. Airways not to terminate him," but "US Airways did not support the exemption request," id. ¶ 65. Instead, in conformance with the Age 60 Rule, which was still in effect at that time, U.S. Airways "forced the [p]laintiff to retire on Feb[ruary] 1, 2007," id., which resulted in the plaintiff filing a "charge of discrimination against [the] ALPA, U.S. Airways, and [the] AFL-CIO with the Equal Employment Opportunity Commission (the `EEOC')." Id. ¶ 43.

The plaintiff filed his complaint in this Court on April 7, 2007, and filed an amended complaint on June 22, 2007. As set forth in his amended complaint, the plaintiff alleges that U.S. Airways has "violated all standard norms associated with federal age discrimination laws" by "institut[ing] a policy that require[d] 99.9% of its pilots to retire from flying[] or be terminated[] by the first day of the month coincident with [(]or next following[)] the pilots' 60th birthday." Id. ¶ 3. He further alleges that the Union Defendants "colluded with U.S. Airways to discriminate against U.S. Airways pilots." Id. ¶ 5. Specifically, the plaintiff alleges that the Union Defendants "continue[d] to support the Age 60 Rule and ... lobby against the pilots they [we]re supposed to be representing," id. ¶ 27, while "US Airways ... refused to object to the Age 60 Rule, lobby against the Age 60 Rule, or request exemptions from the FAA for the ... [p]laintiff and other similarly situated employees," id. ¶ 26.

Based upon these allegations, the plaintiff asserts three causes of action against the defendants.⁵ First, he claims that the defendants "willfully violated the ADEA by discriminating on the basis of age knowingly and with reckless disregard of the law," id. ¶ 80, and by "engag[ing] in collusion to discriminate against the [p]laintiff and others similarly situated," id. ¶ 93. Second, he claims that the Union Defendants breached the CBA "when they promoted an illegal age discrimination policy under the pretense of it being a `safety measure.'" Id. ¶ 99. Third, he claims that the Union Defendants breached their duties of fair representation owed to the plaintiff when they "conspired with U.S. Airways to permit his discharge, failed to represent his interests, and took active steps to deprive him of his employment." Id. ¶ 104.

US Airways filed a motion to dismiss the plaintiff's complaint on June 25, 2007. In support of its motion, U.S. Airways argues (1) that its adherence to the Age 60 Rule at the time of the plaintiffs termination could not have violated the ADEA, U.S. Airways Mot. at 7-10, (2) that the ADEA does not compel employers to lobby or object to the application of federal law on behalf of their employees, id. at 10, and (3) that U.S. Airways cannot be held liable for its failure to lobby for any changes to the Age 60 Rule without violating its First Amendment rights under the "Noerr-Pennington doctrine" established by the Supreme Court in Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), id. at 10-12. The plaintiff counters that even if U.S. Airways was justified in terminating the plaintiff's employment as an airline captain, it nevertheless violated the ADEA by failing to find an alternative position for him, Pl.'s Opp'n to U.S. Airways Mot. at 4-7, and that U.S. Airways either violated its own fiduciary duty to the plaintiff, id. at 7, or aided and abetted the Union Defendants' breaches of their fiduciary duties, id. at 8-10.

The ALPA filed a separate motion on July 18, 2007, seeking to dismiss all three of the plaintiff's claims against it. With respect to the plaintiffs ADEA claim, the ALPA incorporates the arguments raised by U.S. Airways, noting that ...