Podlesnick v. Airborne Exp., Inc.

• Decision Date: 13 January 1986
• Docket Number: No. C-3-81-453.,C-3-81-453.
• Citation: 627 F. Supp. 1113
• Parties: Al PODLESNICK, Plaintiff, v. AIRBORNE EXPRESS, INC., Defendant.
• Court: U.S. District Court — Southern District of Ohio

627 F. Supp. 1113

Al PODLESNICK, Plaintiff, v. AIRBORNE EXPRESS, INC., Defendant.

No. C-3-81-453.

United States District Court, S.D. Ohio, W.D.

January 13, 1986.

Ralph A. Skilken, Jr., Dayton, Ohio, for plaintiff.

Jefferson D. Kirby, III, Atlanta, Ga., Nicholas Hollenkamp, Dayton, Ohio, for defendant.

OPINION; DECISION AND ENTRY SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW; NOMINAL DAMAGES AWARDED TO PLAINTIFF; PLAINTIFF'S REQUEST FOR REINSTATEMENT OVERRULED; PLAINTIFF'S REQUEST FOR PUNITIVE DAMAGES OVERRULED; JUDGMENT TO BE ENTERED FOR PLAINTIFF ON THE ISSUE OF DAMAGES; TERMINATION ENTRY

RICE, District Judge.

Plaintiff Al Podlesnick was terminated by Defendant Airborne Express, Inc., on May 15, 1981 from his position as chief pilot. Plaintiff had previously served Defendant as a line pilot. After trial to the Court, judgment was entered in favor of Plaintiff and against the Defendant on the issue of liability. (Doc. # 69). The Court found Plaintiff to prevail on his claim for breach of contract, while Defendant was found to prevail on Plaintiff's claims under the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq. Briefs and proposed findings of fact and conclusions of law were subsequently filed by the parties and a hearing was held on July 3, 1984 on the question of a remedy for Plaintiff.

For the following reasons, the Court concludes that Plaintiff is entitled to only nominal damages and that Plaintiff is not entitled to recover punitive damages. Finally, Plaintiff is not granted the specific performance, namely reinstatement, which he seeks. In setting forth its reasoning, the Court assumes familiarity with its previous decisions in this case, particularly its March 29, 1984 opinion on the issue of liability (Doc. # 69) (hereinafter also referred to as March 29 opinion).

I. Findings of Fact

In conformity with Fed.R.Civ.P. 52(a), the Court sets out its findings of fact relevant to the issue of the remedy sought by Plaintiff.

(1) Plaintiff has withdrawn his request for attorney's fees. (Tr. 1628-29). Plaintiff chose not to offer testimony at trial on the issue of punitive damages. (Tr. 1629).

(2) Defendant established the Airborne Express System Board of Adjustment on November 26, 1980. (Plaintiff Trial Exh. 39-1, 39-2).

(3) Defendant no longer operates the Caravelle aircraft which Plaintiff is qualified to fly. Defendant now flies only DC-9 and YS-11 aircraft. Plaintiff is not qualified to fly either of these aircraft and has never flown either aircraft. (Tr. 1684, 1694, testimony of Podlesnick).

(4) Plaintiff has not received training in the current simulator for the DC-9, and did not previously complete DC-9 ground school. (Tr. 1685-86, testimony of Podlesnick).

(5) As of July 3, 1984, Plaintiff had flown approximately 100 hours since the May 15, 1981 date of his termination by Defendant. Approximately 50 hours of this flight time occurred in jet aircraft. Plaintiff was a pilot in command for 25 of these flight hours, with the last of these hours flown on May 24, 1982. Plaintiff last served as a pilot in command of a jet aircraft on January 13, 1982 (Tr. 1689-90, testimony of Podlesnick).

(6) Both Plaintiff and Defendant are concerned about Plaintiff's lack of recent flight experience. (Tr. 1751, testimony of Kuli; Tr. 1688, testimony of Podlesnick).

(7) Plaintiff seeks reinstatement as a DC-9 captain with Defendant. More specifically, he seeks a requalification period of three months in order to become qualified to fly a DC-9. (Tr. 1683, 1691-92, testimony of Podlesnick).

(8) Defendant would incur costs of $7,200 in order to rehire Plaintiff and to train him to serve as a DC-9 captain. (Tr. 1739-40, testimony of Hete).

(9) During the period from November 17, 1980 through November 30, 1980, Plaintiff earned $1,707.69 as Defendant's chief pilot. Had Plaintiff served as a line pilot during that period, he would have earned $1,661.54. Thus, Plaintiff earned $46.15 more as chief pilot for the thirteen days remaining in his 180-day "probationary period" subsequent to Defendant's breach than he would have earned as a line pilot during that period. (Tr. 1745-46, testimony of Gibbons).

(10) Feelings of hostility and mistrust have been generated by the involvement of the parties in this litigation during the past several years. (Tr. 1634-35, 1752, testimony of Kuli).

II. Conclusions of Law

(1) For purposes of analyzing Plaintiff's recovery, the breach by Defendant in this case is more analogous to the breach of an option contract than to the breach of an alternative contract. Compare Saltman v. Dunham, 241 Or. 399, 406 P.2d 153 (1965) with Ach v. Herman A. Straus, Inc., 67 Ohio App. 452, 37 N.E.2d 99 (1941).

(2) Under Ohio law, an employment contract of indefinite duration is terminable at any time by either the employer or the employee with or without cause. Henkel v. Educational Research Council, 45 Ohio St.2d 249, 344 N.E.2d 118 (1976).

(3) The bargained-for 180-day "probationary period" took Plaintiff's oral employment contract out of the employment at will doctrine for that limited 180-day period. (Opinion, Doc. # 69 at 19-20). At the expiration of the "probationary period," Plaintiff would have been terminable at will by Defendant, whether he had continued to serve as chief pilot or whether he returned to the line at that juncture.

(4) Plaintiff remained employed by Defendant as chief pilot for the thirteen days remaining in the "probationary period" subsequent to Defendant's repudiation of Plaintiff's option to return to the line. As Plaintiff's salary as chief pilot exceeded what he would have earned had he returned to the line for those thirteen days, see Finding of Fact # 9, supra, only nominal damages of $1.00 are awarded to Plaintiff.

(5) No authority supports an award of damages to Plaintiff extending beyond the 180 days of the "probationary period."

(6) The general rule under Ohio law is that specific performance of personal service contracts is prohibited. Felch v. Findlay College, 119 Ohio App. 357, 200 N.E.2d 353 (1963).

(7) The equities of the instant case are not sufficiently analogous to those in State ex rel. Wright v. Weyandt, 50 Ohio St.2d 194, 363 N.E.2d 1387 (1977), in which specific performance of a personal service contract was found to be warranted, to order reinstatement based on that decision.

(8) It is undesirable to order reinstatement in a case such as this, that is, after disputes have arisen and confidence and loyalty have ebbed. Restatement (Second) of Contracts § 367 Comment a (1979).

(9) Under Ohio law, punitive damages are not available for breach of contract. Davis v. Tunison, 168 Ohio St. 471, 155 N.E.2d 904 (1959).

(10) Plaintiff is a management official outside the scope of the coverage of the Railway Labor Act (RLA). (Opinion, Doc. # 69, Conclusions of Law "C" & "D"). Claims of anti-union activity by Defendant in violation of the RLA, even were such activity found by this Court, could not support an award of punitive damages to Plaintiff.

III. Discussion

(A) Back Pay

As set forth in Finding of Fact # 5 of the March 29 Opinion, Plaintiff and Defendant agreed to a 90-day "probationary period" as a condition to Plaintiff's oral contract to serve as Defendant's chief pilot. Under this arrangement, Plaintiff retained the option of returning to the position of line pilot ("returning to the line") for 90 days. At the end of the 90 days, Plaintiff would either stay on as chief pilot or return to the line, depending on (1) Amiel (Mike) Kuli's evaluation of his performance and/or (2) Podlesnick's desire to stay on the chief pilot's job. (Doc. # 69, p. 8).

After the expiration of the first 90-day period of this nature, the parties agreed to a second 90-day period during which Plaintiff could opt to return to the line. On or about November 17, 1980, with thirteen days remaining on the second 90-day period, Defendant, through the statements of Kuli, unilaterally breached that portion of the employment contract permitting Plaintiff to return to the line. (Doc. # 69, Conclusion of Law "F"). Plaintiff did not request to return to the line at the time of Defendant's breach or upon the lapse of the 180-day period, but continued to serve as Defendant's chief pilot. He was terminated by Defendant on May 15, 1981, and, several weeks after said termination, unsuccessfully sought to return to the line. (Doc. # 69, Finding of Fact # 11).

Plaintiff now seeks damages for back pay. Defendant's position is that the rules governing damages for breach of an alternative contract preclude Plaintiff's recovery of damages and that, in any event, Plaintiff was terminable at will by Defendant and is thus not entitled to damages for breach.

Defendant characterizes the employment contract which it breached as an alternative contract, in that two separate employment options were to be available to Plaintiff at the end of the 180-day "probationary period." Damages for breach of an alternative contract "are determined in accordance with that one of the alternatives that is chosen by the party having an election, or, in the case of breach without an election, in accordance with the alternative that will result in the smallest recovery." 5A C. Corbin, Contracts § 1079, at 454 (1951). As Plaintiff had not selected either of his employment options at the time of Defendant's breach, Defendant contends that the rule pertaining to breach without an election of alternatives governs damages in this case. Defendant further contends that damages for breach of the chief pilot alternative would be the damages alternative which it would find the least onerous, given that Plaintiff had remained in the chief pilot position for the thirteen days which remained in the "probationary period" subsequent to Defendant's breach. Defendant concludes, under this rationale, that Plaintiff is entitled only to nominal damages.

This Court does not agree that the rules of recovery for...