Pignato v. American Trans Air, Inc.

• Decision Date: 19 January 1994
• Docket Number: No. 92-3685,92-3685
• Citation: 14 F.3d 342
• Parties: 145 L.R.R.M. (BNA) 2269, 127 Lab.Cas. P 11,005 Gary D. PIGNATO, Plaintiff-Appellant, v. AMERICAN TRANS AIR, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 342

14 F.3d 342

145 L.R.R.M. (BNA) 2269, 127 Lab.Cas. P 11,005

Gary D. PIGNATO, Plaintiff-Appellant, v. AMERICAN TRANS AIR, INC., Defendant-Appellee.

No. 92-3685.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 13, 1993.

Decided Jan. 19, 1994.

Steven M. Levin (argued), Levin & Perconti, Chicago, IL, for plaintiff-appellant.

Michael L. Tinaglia, Laser, Schostok, Kolman & Frank, Chicago, IL, Gregory J. Utken, Alan L. McLaughlin (argued), Baker & Daniels, Indianapolis, IN, for defendant-appellee.

Before POSNER, Chief Judge, CUDAHY and KANNE, Circuit Judges.

KANNE, Circuit Judge.

American Trans Air (ATA) is an air carrier which operates both charter flights and scheduled passenger service. Gary Pignato was an employee of ATA from December, 1985 to December 1990. Throughout the period of his employment with ATA, Pignato was also a member of the Indiana Air National Guard.

Pignato contends that ATA acted against him illegally in three ways: (1) by firing him in 1987; (2) by denying him an "upgrade" to a better job in 1989; and (3) by firing him again, and finally, in 1990. Pignato bases his claims against ATA on two statutory provisions of the Vietnam Era Veterans' Readjustment Assistance Act. ¹

I. Facts

ATA operates several B-727 aircraft, which make a total of approximately 400 flights per month. Each B-727 has a crew of three; a captain, a first officer, ² and a flight engineer. Pignato was hired in 1985 as a B-727 flight engineer. In January of 1989 he was promoted to B-727 copilot.

Flight assignments for B-727 crew members are made by a bidding process, which is repeated each month. On or about the fifteenth of the month each crew member is given a "crew bid sheet" which contains eight to ten "lines" to choose from. A line is a monthly schedule of days when the employee will be required to fly, days where he must be available to fly if needed, and other days on which he might be called on to fly, and several guaranteed days off. These guaranteed days off are called "G-days."

Crew members submit a list of lines in order of preference. Lines are assigned by seniority. If, for example, two copilots listed the same line as their first choice, the more senior copilot would be awarded the line.

Pignato had to accommodate his flying schedule for ATA with his commitment to the Guard. The Guard's training requirements included, typically, Unit Training Assemblies (UTAs) one weekend per month, annual 15 day training periods, and 48 four hour training periods. In Pignato's case, his Guard commitment was usually four or five days per month. The Guard notifies its members twelve to eighteen months in advance of the date of the annual training period. Each summer it publishes the dates for UTAs for the following calendar year. The four hour training periods may be scheduled at virtually any time. Pignato always had many months of advance notice, or great flexibility, as to his Guard flying schedule.

ATA requires its employees who are members of the Guard to perform their military obligations on their G-days. They are required to bid for lines which do not conflict with training commitments. As we have noted, Guard commitments are announced many months in advance. If there is an unavoidable conflict, the employee is to notify ATA as soon as he is aware of a conflict.

Pignato's situation was not unique. Many ATA aircrew are members of Air Force Reserve units. Very few of these individuals have found it difficult to comply with ATA's rules. Conflicts between the two schedules rarely arise.

Nonetheless, on numerous occasions Pignato bid for lines which conflicted with his military obligations. He then informed ATA of conflicts long after he first became aware of them. Pignato apparently believed that ATA had to allow him to fly for the Guard, and could impose no requirements on him to accommodate this service with his work requirements. In particular, he did not want to use his personal time to fly for the Guard. He wanted his Guard flying time to come out of time he would otherwise be flying for ATA.

Pignato's unwillingness to notify ATA of his Guard flying commitments in advance forced ATA, on several occasions, to find a replacement crew member at the last minute. Pignato was repeatedly warned to comply with ATA's policy regarding scheduling.

On April 15, 1987 ATA fired Pignato because he bid for a line with two known conflicts, in violation of ATA's flight scheduling policies. Pignato responded by filing a complaint with the Department of Labor alleging that ATA had terminated him because of his military status, and demanding reinstatement and backpay. Pignato's claim was found to be meritless. ATA rehired Pignato several months later, amending his file to indicate that the period of his termination was a leave of absence without pay.

In January of 1989 Pignato was promoted to B-727 copilot. In October of that year he asked to be assigned to a class to be trained as a copilot on the B-757, a new airplane which ATA was adding to its fleet. An "upgrade" to copilot on the newer B-757 would have included about a fifteen percent increase in Pignato's pay.

In April of 1990 Pignato filed a pro se complaint against ATA for, among other things, failing to train him as a B-757 copilot. In October of 1990, ATA assigned Pignato to a training class for the B-757. Pignato was scheduled to complete his training as a B-757 copilot on December 17, 1990. His final requirement was to fly as an observer on a B-757 that day. Pignato did not make the flight.

Pignato called ATA twice that day. During his first phone call Pignato asked to be relieved of his flight duty for the day. He offered three reasons for his request: (1) that he was "stressed out" due to his ongoing divorce proceedings, (2) that there was a second pilot scheduled to receive training on the same flight, so that his presence would be redundant, and (3) that he wanted to attend the ATA Christmas party. His request was denied.

Pignato then called a second time. He said that he was sick, claiming that he was under too much stress to fly. That same day Pignato got a note from a social worker, Mark Frey, which indicated that Pignato was being counselled by him. The note did not indicate that Pignato was unable to perform his duties.

Despite Pignato's alleged stress, he was able to relax sufficiently by that evening to attend the ATA Christmas party. He stayed at the party until midnight. He got drunk. When the party ended Pignato was too drunk to drive, so he went in an other person's car to the home of three female ATA employees. There the festivities continued for the remainder of the night. Pignato returned home the next day, and despite the celebratory exertions of the previous evening and early morning, Pignato called in to ATA that he was now "well."

Pignato's "stress" had apparently subsided by December 20 and 21, because he flew for the Guard on those dates. He took no further action regarding the "stress" which kept him from working on December 17.

ATA requested Pignato's appearance at company headquarters on December 31, 1990. He met with representatives of the company, who terminated him. The reasons given for his termination were "abuse of the sick day policy, representing manipulation of the scheduling system for personal convenience."

Captain Cooper, Pignato's superior at ATA, attended the December 31 meeting. During the meeting he made the decision to terminate Pignato. Cooper found the letter from Mark Frey to be irrelevant to his decision because it did not state that Pignato was incapable of performing his duties. Furthermore, at the December 31 meeting, Cooper claims that Pignato himself stated that he was capable of performing his duties on December 18. Pignato had used a "sick" day to excuse himself from working when he was not, in fact, sick. This was a violation of ATA's policy.

ATA had a policy of "progressive discipline" which generally required penalties of increasing severity for repeated misconduct. Termination is, of course, the ultimate sanction for an unsatisfactory employee. However, Cooper characterized Pignato's actions as "an episode of gross misconduct" and "a serious demonstration of irresponsible behavior." Because he found Pignato's offense to be so serious, Cooper did not first impose a lesser sanction, but fired him on the spot.

Pignato filed a claim with the Illinois Department of Employment Security. A hearing was held before a referee on February 14, 1991, at which both Pignato and ATA testified. The referee found that Pignato had abused ATA's sick leave policy, and upheld ATA's termination of Pignato. The Employment Security Review Board upheld this decision on July 18, 1991.

Pignato then filed a pro se action against ATA in federal court. In September 1991 the district court denied ATA's motion for summary judgment, finding that there were contested issues of fact regarding the 1987 termination. Pignato then retained counsel, who took the case to trial. After a three day bench trial the trial court found for ATA on all counts.

Pignato filed a timely notice of appeal. This court has jurisdiction under 28 U.S.C. Sec. 1291.

II. Standard of Review

Pignato claims that ATA discriminated against him because of his military reserve status. The district court found to the contrary. We have held that "a finding of intentional discrimination is a finding of fact." Tyson v. Jones & Laughlin Steel Corp., 958 F.2d 756 (7th Cir.1992) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)). Therefore, the appropriate standard of review is clear error. Id., Fed.R.Civ.P. 52(a). We find a clear error when we are left "with a definite and firm conviction that a mistake has been made." Id. When applying this standard we recognize the discretion which the trial judge must have to weigh testimony and other evidence, and to determine which version of the...