McCall v. Southwest Airlines Co.
| Decision Date | 01 October 2009 |
| Docket Number | Civil Action No. 3:08-cv-2000-M. |
| Citation | 661 F.Supp.2d 647 |
| Parties | Janice McCALL, Plaintiff, v. SOUTHWEST AIRLINES CO. and Southwest Airlines Pilots' Assn., Defendants. |
| Court | U.S. District Court — Northern District of Texas |
Kiwi Alejandro Danao Camara, Joe Sibley, Camara & Sibley LLP, Houston, TX, for Plaintiff.
Liquita Lewis Thompson, J. Richard Hammett, Baker & McKenzie, Houston, TX, Elizabeth L. Yingling, Baker & McKenzie, Hal K. Gillespie, Christa J. Boyd-Nafstad, Gillespie Rozen & Watsky, P.C., Dallas, TX, for Defendants.
BARBARA M.G. LYNN, District Judge.
Before the Court are Defendant Southwest Airlines Pilots' Association's Motions to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) [Docket Entry #22]. For the reasons explained below, the Motion to Dismiss for lack of subject matter jurisdiction is DENIED, and the Motion to Dismiss for failure to state a claim is GRANTED in part and DENIED in part.
Plaintiff Janice McCall is an airline pilot employed by Defendant Southwest Airlines ("Southwest") at the rank of First Officer. McCall is a member of Defendant Southwest Airlines Pilots' Association ("SWAPA"), a union that is the certified collective bargaining representative for all Southwest pilots.
On December 5, 2007, McCall was paired with Captain Jim Austin to pilot Flight 3839 from Philadelphia to Nashville. Following normal operating procedures prior to departure, Captain Austin and First Officer McCall conducted independent exterior inspections of the aircraft and concluded that there was no need to deice the plane prior to takeoff.1 Takeoff, flight, and landing were uneventful, and the plane landed in Nashville as scheduled. Upon landing, the deadheading crew informed Captain Austin of ice and snow accumulation on the wings of the plane. McCall was not a party to this conversation.
When McCall was made aware of the incident, she filed a report under an internal safety reporting program that protects self-reporting pilots from punitive disciplinary action.2 The team reviewing the report unanimously determined that McCall should be returned to work with retraining, and her case was officially closed. However, Captain Austin's report, filed just 26 minutes after McCall's, was rejected from the protective program as untimely. Austin protested the disparity in treatment, attributing his rejection from the program to his history of hostile relations with Southwest and SWAPA. In a move that McCall alleges was motivated by Southwest's desire to fire Austin without appearing discriminatory, McCall was retroactively expelled from the protective program.3 On January 21, 2008, Southwest terminated McCall, citing her failure to properly inspect Flight 3839 for ice. Austin and McCall were the first Southwest pilots to be terminated for failure to deice.4
Over McCall's objection, SWAPA accepted a settlement with Southwest pursuant to which McCall was reinstated and her termination reduced to a 30-day suspension without pay.5 McCall complained of SWAPA's action in approving the settlement, but did not expressly request presentation to the Southwest Airlines Pilots' Board of Adjustment.6
On November 7, 2008, McCall filed suit against SWAPA and SWA for breach of the duty of fair representation, breach of the collective bargaining agreement, retaliatory discharge, and defamation. On July 15, 2009, SWAPA moved to dismiss the claims against it, asserting that this Court lacks subject matter jurisdiction because McCall has failed to exhaust the internal union remedies available to her, and that McCall has failed to state a claim upon which relief can be granted.
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a claim is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the claim.7 Normally, the court determines subject matter jurisdiction from the sufficiency of the allegations in the complaint, because they are presumed to be true.8 But if a defendant makes a factual attack on subject matter jurisdiction by providing evidentiary materials challenging the jurisdiction of the court, as SWAPA has done, the court is free to weigh evidence from both sides in resolving disputed factual issues.9 The plaintiff then bears the burden of proving jurisdiction by a preponderance of the evidence.10
Before an employee may bring suit against an employer for breach of a collective bargaining agreement, the employee is generally required to exhaust any grievance or arbitration remedies provided in that agreement.11 But when the union representing the employee vis-a-vis the employer in any grievance or arbitration procedure "acts in such a discriminatory, dishonest, arbitrary, or perfunctory fashion as to breach its duty of fair representation," the employee may bring suit against both the employer and the union in federal court without having first exhausted the grievance and arbitration remedies under the collective bargaining agreement.12 Such a lawsuit is called a "hybrid" action.
While the hybrid action allows an employee to bring suit without having exhausted her remedies under the collective bargaining agreement, the employee generally has a separate remaining duty to exhaust all internal union grievance procedures.13 Courts have discretion to decide whether to require exhaustion of internal union remedies before suit is brought.14 In Clayton v. International Union,15 the Supreme Court identified at least three factors relevant to this determination: "first, whether union officials are so hostile to the employee that he could not hope to obtain a fair hearing on his claim; second, whether the internal union appeals procedures would be inadequate either to reactivate the employee's grievance or to award him the full relief he seeks . . . and third, whether exhaustion of internal procedures would unreasonably delay the employee's opportunity to obtain a judicial hearing on the merits of his claim."16 If the court finds that any of these factors exist, it may properly excuse the employee's failure to exhaust internal union remedies.
SWAPA argues that McCall has failed to allege facts showing that she should properly be excused from exhausting internal remedies, and that she did not, in fact, exhaust those remedies.17 McCall contends that she "did not need to pursue any further intra-union procedures because those procedures were not grievance related."18 She further argues that even if there were appeals procedures that she could have pursued, such a pursuit would have been futile.19
In Clayton, the defendant union required every union member "who feels aggrieved by any action, decision, or penalty imposed upon him by the union to exhaust internal union appeals procedures before seeking redress from a civil court or government agency."20 These procedures were established by two articles in the union's constitution and incorporated into its bylaws.21 Furthermore, the procedures specified the proper progression in which to seek relief if the result obtained at any stage was not satisfactory.22
Likewise, in Hayes v. Brotherhood of Railway & Airline Clerks, the defendant union set forth an internal procedure in its "Protective Laws" whereby an aggrieved union member could appeal a union officer's decision.23
In contrast, Article XIII of the SWAPA Constitution and Bylaws, cited by SWAPA in support of its argument, does not provide specific grievance procedures for the type of complaint McCall asserts. Section 1, entitled "Hearings," reads, in full:
A. Any active member or group of members in good standing has the right to a hearing in person before the Board of Directors.
B. To address the Board of Directors, an active member in good standing must notify the Secretary/Treasurer in writing at least five days prior to the next scheduled meeting.
C. Items requiring a vote of the Board of Directors shall require a sponsor from the Board of Directors to make a formal motion.24
This section does not pertain to grievance procedures on its face, nor does it provide any information about what topics are appropriate for a Board hearing. There is no direction as to what information must be contained in the requisite notice to the Secretary/Treasurer. There is no guidance as to what items require a vote of the Board, nor information on how to obtain a sponsor from the Board if one is necessary. As for items that do not require a vote, no notice is given as to what the available remedies might be.
Section 2, dealing with petitions through the union membership, is equally vague as to its relevance to an internal grievance process. Subsection B(3) simply states that "[i]ssues are to be limited to those which are consistent with the objects of the Association."25 Although the procedures related to submitting a petition are more detailed than those for obtaining a Board hearing, it is not obvious—and the document nowhere states—that a membership petition, possibly resulting in a referendum and vote by the entire union membership, is a mechanism meant for the resolution or appeal of individual grievances.
SWAPA has failed to point to any provisions in the SWAPA Constitution and Bylaws that provide a clear procedure whereby McCall's grievance concerning an alleged breach of the duty of fair representation could be heard and adequately remedied through an internal union process. While it is difficult for a plaintiff to satisfy the burden of affirmatively showing that such a provision does not exist, the preponderance of the evidence shows that there are no further internal union remedies to exhaust.26 The Court therefore does not reach the question of whether McCall had any proper excuses for failure to exhaust.
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