Lebow v. American Trans Air, Inc.

• Citation: 86 F.3d 661
• Decision Date: 06 June 1996
• Docket Number: No. 95-2665,95-2665
• Parties: 152 L.R.R.M. (BNA) 2463, 64 USLW 2808 Mark B. LEBOW, Plaintiff-Appellant, v. AMERICAN TRANS AIR, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 661

86 F.3d 661

152 L.R.R.M. (BNA) 2463, 64 USLW 2808

Mark B. LEBOW, Plaintiff-Appellant, v. AMERICAN TRANS AIR, INC., Defendant-Appellee.

No. 95-2665.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 8, 1996.

Decided June 6, 1996.

Richard C. Leng (argued), Leng, Stowell, Friedman & Vernon, Chicago, IL, for Plaintiff-Appellant.

Charles R. McKirdy, James D. Roberts, Rudnick & Wolfe, Chicago, IL, John J. Gallagher, Jon A. Geier (argued), Randall M. Stone, Neal David Mollen, Paul, Hastings, Janofsky & Walker, Washington, DC, for Defendant-Appellee.

Before ESCHBACH, FLAUM and MANION, Circuit Judges.

FLAUM, Circuit Judge.

This case requires us to answer two questions of first impression in any United States Court of Appeals: whether an employee suing an employer under the Railway Labor Act for discharging him because of his union-organizing activities is entitled (1) to a jury trial and (2) to seek punitive damages. We hold that he is entitled to both, and we reverse and remand for further proceedings.

In June 1991, American Trans Air (ATA) fired Mark Lebow from his position as an airline pilot. Lebow filed suit under the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq., claiming that ATA discharged him because of his union-organizing activities. ¹ He sought reinstatement, back pay, benefits, compensatory damages, and punitive damages. Lebow also demanded a jury trial. ATA claimed that it terminated Lebow because of his job performance. In addition, the airline argued that the RLA does not provide Lebow with the right to a jury trial or to recover punitive damages. The district court held that Lebow could seek punitive damages but was not entitled to a jury trial. After a bench trial, the district court entered judgment in favor of ATA. Lebow appeals, arguing that he was denied his Seventh Amendment right to a trial by jury.

I.

As an initial matter, ATA argues that we need not reach the question of whether Lebow was entitled to a jury trial because the evidence introduced at trial was insufficient to support his claim of anti-union animus. ATA would be entitled to judgment as a matter of law only if " 'there can be but one conclusion from the evidence' and inferences reasonably drawn therefrom." Bronk v. Ineichen, 54 F.3d 425, 428 (7th Cir.1995) (quoting McNabola v. Chicago Transit Authority, 10 F.3d 501, 515 (7th Cir.1993)). The evidence that Lebow presented at trial in support of his claim follows.

Lebow joined ATA as a Flight Engineer (the third in command on an airplane) in 1983. He was promoted to First Officer in 1985 and to Captain in 1989. From 1989 to 1991, he served as the Captain of a Boeing 727 airplane.

During Lebow's tenure at the airline, ATA's pilots were not represented by a union. In 1989, Lebow began working on a campaign to have the pilots at ATA represented by the Airline Pilots Association (ALPA). The campaign was quiet, even secretive. Lebow and Earl Rogers, another ATA pilot, testified that the organizers of the ALPA campaign proceeded quietly because, as ATA opposed unionization, they feared retaliation. Rogers identified Lebow as one of the "primary organizers" of the campaign. The drive to bring the ALPA to ATA, however, ultimately failed. ²

Lebow testified that he was actively involved in union-organizing activities. He passed out authorization cards and also "spoke with many people, anybody that wished to talk about" the union. He attended meetings in Virginia and Las Vegas to discuss the possibility of organizing ALPA representation at ATA. In addition, he discussed his pro-union sentiments with ATA officials on several occasions. In early 1991, Lebow resigned from the Crew Scheduling Advisory Committee (a committee of pilots and managers composed to discuss scheduling issues). Lebow stated that he told Steve Cooper, ATA's Vice President of Flight Operations, that "I was no longer going to attend the Crew Scheduling Advisory Committee [meetings] and that I would continue to work on my concerns through the union by trying to organize a union." Also in 1991, Lebow attended a training class in Indianapolis where Jim Hlavacek (an Executive Vice President of ATA) and Ken Wolf (another senior manager) showed the pilots a videotape produced by the company to discourage flight attendants from organizing a union. ³ A discussion between Hlavacek and the pilots ensued, and Lebow presented the union perspective in response to the management perspective offered by Hlavacek. Following the training class, Lebow and Hlavacek had a private conversation, and Lebow explained to Hlavacek why he believed that a union was necessary. Hlavacek told Cooper about his discussion with Lebow.

Lebow testified that in May or June of 1991, he had a conversation with his direct supervisor, Captain Tom Leonard, during which Leonard asked him, "what do you think about unions?" Lebow responded that he felt the pilots "had no choice but to go to the unions." Lebow's wife, Donna Lebow (she was then his fiancee) was present during this conversation, and she confirmed Lebow's account of the exchange. Cooper and Hlavacek acknowledged that they knew of Lebow's pro-union sentiments, but they denied knowledge of his union-organizing activities.

ATA made no secret of its opposition to unionization. Cooper felt that unionization would have an adverse financial impact on ATA, and Hlavacek opposed unions because he had previously worked at Continental Airlines where he observed a union "basically tearing the company apart." Cooper wrote several letters to the pilots in an effort to discourage them from bringing either the ALPA or the Teamsters to ATA. In addition, ATA managers wore "One Team" badges in opposition to unionization efforts.

Rogers testified that Mike Carlozzi, ATA's Chief Pilot, told him that "a union would never work at ATA, that it would interfere with the [airline's] competitive position within the industry." Rogers stated further that Carlozzi "followed up his remarks by talking about what a difficult time it was in the industry for pilots to find work, and on his desk he had a large stack of resumes." Finally, Rogers testified that two pilots (Rick Reese and Andy Sperling), whom he knew to be active union organizers, were fired by ATA.

In June 1991, Lebow was scheduled for a proficiency check, which as a Captain he was required to take twice a year. Lebow was originally scheduled to take the "check ride" on June 18, but ATA rescheduled his check for June 10 and assigned a different "check airman" to administer the check, Captain Stonehouse. Lebow stated that at a lunch meeting prior to the check, Stonehouse commented that "he hoped that all flight attendants that voted for the union would either lose their jobs or have serious pay cuts." Stonehouse then administered the proficiency check to Lebow. The check lasted 40-45 minutes rather than the usual two hours. Lebow failed the check, and it was the first time that he had failed a proficiency check (he had taken approximately 15 previous checks) during his employment with ATA.

After failing the check, Lebow discussed the matter with Cooper. Cooper told him to be prepared to take another proficiency check. In addition, Cooper observed that "we [Cooper and Lebow] have had our differences." Cooper then pounded on the table and said, "this will not continue."

After this meeting, Lebow discussed his failure on the proficiency check with Rich Moreau, ATA's Chicago base manager. Lebow testified that Moreau told him that "he was going to ... try to help me out ... [but] the wheels were already turning and he didn't think he could do very much." Lebow claimed that Moreau told him that "this did not have to do with my performance but, instead, had to do with my conversation with Mr. Hlavacek and also because of [union] organizing."

On June 24, 1991, Lebow and Cooper met again, ostensibly to discuss the failed proficiency check. Leonard and Carlozzi were also present at the meeting. Cooper opened the meeting by informing Lebow that he was fired. Lebow asked Cooper what the reason was, and Cooper replied, "technical proficiency." Carlozzi then added "not conforming to company policy," but Cooper "quickly corrected [him] back to technical proficiency."

At trial, ATA argued that it fired Lebow because of the combined effect of the failed proficiency check and three other incidents in his work history: (1) a failed attempt to "upgrade" to Captain in May 1988 (when Lebow was still a First Officer); (2) an incident in St. Thomas, Virgin Islands in April 1990 where the wing tip of Lebow's plane may have touched the runway during take-off; and (3) an aborted take-off in Phoenix in May 1990. ⁴ ATA presented evidence (including expert testimony) that Lebow made mistakes during these incidents that justified his discharge. Lebow presented evidence (including expert testimony) that (1) the proficiency check was administered unfairly; (2) Lebow performed proficiently during the St. Thomas and Phoenix incidents; and (3) the failed attempt to upgrade was caused by emotional distress that Lebow was experiencing (the night before the upgrade attempt, Lebow's wife informed him that she wanted a divorce). Additionally, Lebow contended that ATA should not have held his failure on the initial attempt against him because he successfully upgraded to Captain in 1989.

Although we have not previously addressed this issue, we believe that the same burden-shifting method employed in unlawful discharge claims brought under the National Labor Relations Act (NLRA) applies to claims brought under the RLA. See ALPA v. Eastern Air Lines, Inc., 863 F.2d 891, 902 (D.C.Cir.1988) (adopting same standard in RLA and NLRA cases), cert. dismissed, 501 U.S. 1283, 112 S.Ct. 38, 115 L.Ed.2d 1119 (1991); cf. Trans World Airlines, Inc. v. Independent Federation of Flight Attendants, 489 U.S. 426, 432, 109 S.Ct. 1225, 1230, 103 L.Ed.2d 456 (1989) ("[C]arefully drawn analogies...