Hulsey v. USAir, Inc., 87-1886
| Decision Date | 03 April 1989 |
| Docket Number | No. 87-1886,87-1886 |
| Citation | 868 F.2d 1423 |
| Parties | 130 L.R.R.M. (BNA) 3094 Daniel P. HULSEY, Plaintiff-Appellant, v. USAIR, INC., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Hal Gillespie, Hicks, Gillespie, James, Rozen & Preston, P.C., Dallas, Tex., for plaintiff-appellant.
John V. Jansonius, William C. Strock, Haynes & Boone, Dallas, Tex., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before GOLDBERG, GARWOOD and JOLLY, Circuit Judges.
Plaintiff-appellant Daniel P. Hulsey (Hulsey), a commercial pilot, brought this civil action against his former employer, defendant-appellee USAir, Inc. (USAir), seeking declaratory relief and money damages for USAir's alleged violation of the Airline Deregulation Act of 1978, Sec. 43(d), 49 U.S.C.App. Sec. 1552 (1987). The district court, Judge Barefoot Sanders, rendered summary judgment in favor of USAir. We affirm.
Facts and Proceedings Below
The following facts were found by the district court and are not in dispute.
Hulsey was employed as a commercial airline pilot for Braniff Airways, Inc., from 1973 to 1982, when Braniff ceased operations and filed bankruptcy. In June 1982, after Braniff ceased operations, Hulsey, an employee eligible for protection under the Airline Deregulation Act of 1978 (the Act), applied for employment as a pilot with USAir, an interstate air carrier subject to the provisions of the Act. In September 1982, USAir hired Hulsey on probationary status. USAir requires all new pilots to serve a one-year probationary period, after which the pilots can be fired only for cause. Hulsey was on nonprobationary status when he worked for Braniff.
During his training and first three months of active service with USAir, Hulsey was a defendant in a federal criminal prosecution for several income tax-related felonies, and his participation in that trial caused him to miss work periodically. On March 12, 1983, a jury found him guilty of one count of conspiring to defraud the federal government under 18 U.S.C. Sec. 371, and three counts of willfully subscribing false individual income tax returns under 26 U.S.C. Sec. 7206(1) (1976), and on April 22, 1983 he was sentenced to concurrent thirty months' imprisonment terms on each count and a $5,000 fine. 1 On March 15, 1983, USAir suspended Hulsey without notice or opportunity to be heard, and on May 1, 1983, following his sentencing, Hulsey was fired. USAir's stated reasons for Hulsey's termination were his frequent unavailability for work and his criminal convictions.
Hulsey then filed the present action against USAir in November 1983. Hulsey alleged in his complaint that USAir had violated its duty under the Act's first right of hire provision, which requires that airlines give a hiring preference to employees dislocated as a result of the deregulation of the airline industry. He further alleged that he was denied employment opportunities because of this violation. The Act's first right of hire provision, which is codified at 49 U.S.C.App. Sec. 1552(d)(1), states in pertinent part:
According to Hulsey, USAir circumvented its duty under this provision by hiring him on probationary status, which permitted the carrier to terminate his employment without cause during the first year of employment notwithstanding the statutory hiring preference.
USAir responded by filing a motion to dismiss and a motion for summary judgment. USAir argued that by hiring Hulsey it had satisfied its duty under the first right of hire provision and that Hulsey's subsequent discharge did not constitute a violation of that provision. In an order dated October 20, 1987, the district court granted USAir's motion for summary judgment stating that USAir's duty to hire under the first right of hire provision does not imply protection beyond hiring. The district court noted that pursuant to its collective bargaining agreement with the Air Line Pilots Association, USAir hires all its pilots for a one-year probationary period, and during that period any pilot can be terminated at USAir's discretion. The court further noted that while the Act imposed a duty on USAir to hire Hulsey, once Hulsey was hired USAir owed no greater duty to him than it did to any of its other newly hired pilots. The court therefore concluded that once Hulsey was hired, USAir could terminate him without cause within the one-year probationary period, just as it could terminate any of its other newly hired pilots. Hulsey now appeals that decision. Discussion
On appeal, Hulsey contends that the district court misinterpreted the Act when it concluded that the first right of hire requirement is satisfied once the "protected" employee is hired. According to Hulsey, this interpretation renders the first right of hire provision meaningless, for a carrier could theoretically satisfy its obligation under the provision by hiring a protected employee one moment and firing him the next, and then hiring the carrier's first choice without the restrictions of statutory hiring preferences. This kind of protection, Hulsey argues, is no protection at all. Thus, Hulsey contends that for the provision to have meaning, it must be interpreted to impose a duty of hiring protected employees on a permanent rather than probationary status. Furthermore, Hulsey contends that to give meaning to the first right of hire privilege, the "protected" employees must be allowed to challenge a wrongful termination in a grievance procedure (including labor arbitration) or in the federal courts. Hulsey contends that such an interpretation of the Act "would be consistent with a long series of rights deemed by the courts to flow from the duty to bargain in good faith provided under the Railway Labor Act, 45 U.S.C. Sec. 152, ... and the Labor Management Relations Act, 29 U.S.C. Sec. 158(a)(5)."
We reject these arguments for the reasons set forth in the district court's opinion, which is reproduced as the appendix hereto. After reviewing the legislative history of the first right of hire provision, the district court concluded that Congress intended to limit the employment protection to a hiring preference. 2 Beyond the hiring, the district court concluded, the law does not afford the protected employees preferential treatment. 3 We agree with these conclusions.
In short, we are in agreement with the district court's opinion and we affirm on that basis. We add, however, that we do not read the district court's opinion as saying that USAir discharged Hulsey as a forced hire when it would not have discharged a nonforced hire probationary pilot, or indeed a nonprobationary pilot, under the same circumstances; indeed, there is no evidence to this effect. In this case, it is undisputed that USAir will not employ pilots who are convicted felons, and it is undisputed that Hulsey was fired because of his multiple felony convictions after he was sentenced to thirty months' imprisonment. There is no allegation or summary judgment evidence that USAir has retained, or has a policy of retaining, probationary (or nonprobationary) pilots who are not protected by the Act despite felony convictions with sentences of imprisonment; thus, there is no evidence that Hulsey was treated any differently from any other USAir pilot who is convicted of a felony offense and sentenced to prison therefor. The undisputed evidence indicates that Hulsey was afforded preferential treatment when he was hired, and that in subsequently discharging him USAir treated Hulsey as it would treat its other pilots under similar circumstances, as it is permitted to do under the law. Thus, since there was no genuine issue of material fact, the district court properly found that USAir is entitled to judgment as a matter of law.
v.
USAIR, INC., Defendant,
Before the Court are Defendant's Motion to Dismiss and Motion for Summary Judgment, filed July 31, 1987; Plaintiff's Response, filed August 31, 1987; and Defendant's Reply, filed September 18, 1987.
This is a civil action for declaratory relief and money damages attributable to Defendant's alleged violation of the Airline Deregulation Act of 1978, Sec. 43(d), 49 U.S.C.App. Sec. 1552 (1987) ("the Act"). Plaintiff's Original Complaint ("Complaint") at 1. Plaintiff alleges that Defendant violated its duty under the Act to first hire employees dislocated as a result of deregulating the airline industry. Specifically, Plaintiff alleges that Defendant circumvented its duty to offer Plaintiff the "first right of hire" by hiring him on probationary status, since probationary employees may be terminated at any time without cause. Plaintiff contends that if probationary employment is considered to satisfy the Act, the protection afforded is illusory.
The material facts in this case are undisputed. Plaintiff was a pilot on non-probationary status with Braniff Airways, Inc. ("Braniff") from 1973 until Braniff ceased operations and filed for bankruptcy in 1982. Complaint at 2-3; ...
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