Bader v. United Airlines, Inc.

DOUGLAS BADER, CHARLES DOYLE, and RALPH J. RINA, Plaintiffs, v. UNITED AIRLINES, INC., Defendant.

No. 14 C 2589

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

June 4, 2018

Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER

Plaintiffs Douglas Bader, Charles Doyle, and Ralph Rina have brought this action against their former employer Defendant United Airlines, Inc. ("United"). Plaintiffs bring age discrimination and retaliation claims under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq. Plaintiffs also bring related state law claims. Before the court is United's motion for summary judgment and Plaintiffs' partial motion for summary judgment as to liability.¹ For the reasons set forth below, United's motion for summary judgment [70] is granted, and Plaintiffs' partial motion for summary judgment [109] is denied.

BACKGROUND

Prior to 2010, Plaintiffs were Pilot Instructor/Evaluators ("I/Es") at Continental Airlines ("Continental"). Federal law prevents anyone over the age of 65 from serving as a pilot in mostcommercial operations. While working for Continental, Plaintiffs were unable to fly the line² since they were over 65 years old, but Plaintiffs were able to work for Continental as Non-Line Qualified Flight Instructors ("NLQFIs"). In 2010, United entered into a merger with Continental. Airline Pilots Association, International ("ALPA") is the labor organization that represented Plaintiffs and other I/Es at the time of the merger. After the merger, United and ALPA negotiated a new collective bargaining agreement referred to as the United Pilot Agreement ("UPA"), which became effective December 18, 2012. The UPA included a qualification for the I/E position that United had in place since at least 1989 ("United Policy"). The United Policy required that all I/Es fly the line at least 30 days a year. As a result, after the merger, Plaintiffs could not serve as I/Es for United since they were unable to fly the line.

In a Letter of Agreement, dated December 18, 2012 ("LOA 18"), which was made a part of the UPA, United and ALPA agreed to a transitional period of twelve months after the effective date of the UPA that allowed NLQFIs who exceeded the statutory age limit for pilots to continue to work in the I/E position. The transitional period ran from December 2012 through December 2013. During the transitional period, United also utilized Continental's Advanced Qualification Program ("AQP").³ Under the UPA, after the transitional period, NLQFIs were treated like any other pilots and were removed from the pilot seniority list when they reached the statutory age limit. In June 2013, Plaintiffs sent a letter ("June 2013 Letter") to the Continental ALPA Master Executive Council ("Council") requesting that their seniority be restored and that their retirement date be rescinded. The Council responded in July 2013 that it did not have unilateral authority to strike or modify provisions of the UPA. Plaintiffs contend that they didnot understand the Council's response at that time to be a final rejection of Plaintiffs' requests and so delayed in pursuing certain claims. Plaintiffs ultimately all retired near the end of the transitional period.

On April 10, 2014, Plaintiffs filed the instant action and included in their complaint ADEA disparate treatment and disparate impact discrimination claims (Count I), ADEA retaliation claims (Count II), a claim by Doyle under the Kentucky Civil Rights Act, KRS 344.010 et seq. (Count III), a claim by Bader under the Colorado Anti-discrimination Act ("CADA"), § 24-34-301 et seq. (Count IV), a claim by Rina under the Arizona Civil Rights Act ("ACRA"), A.R.S. § 41-1401 et seq. (Count V), wrongful discharge claims (Count VI), breach of covenant of good faith and fair dealing claims (Count VII), intentional infliction of emotional distress claims (Count VIII), and interference with prospective economic advantage claims (Count IX). On January 16, 2015, this action was transferred to the undersigned judge. On July 9, 2015, this court granted in part United's motion to dismiss and dismissed all claims in Counts VI-IX. United has filed a motion for summary judgment on the remaining claims and Plaintiffs have filed a partial motion for summary judgment as to liability on the remaining claims.⁴

STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In considering such a motion, the court construes the evidence and all inferences that reasonably can be drawn therefrom in the light most favorable to the nonmoving party. See Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014). "Summary judgment should bedenied if the dispute is 'genuine': 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.' " Talanda v. KFC Nat'l Mgmt. Co., 140 F.3d 1090, 1095 (7th Cir. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see also Bunn v. Khoury Enters., Inc., 753 F.3d 676, 681-82 (7th Cir. 2014). The court will enter summary judgment against a party who does not "come forward with evidence that would reasonably permit the finder of fact to find in [its] favor on a material question." Modrowski v. Pigatto, 712 F.3d 1166, 1167 (7th Cir. 2013). It is well settled that at the summary-judgment stage, the court does not make credibility determinations, weigh evidence, or decide which inferences to draw from the facts; those are jury functions. See Gibbs v. Lomas, 755 F.3d 529, 536 (7th Cir. 2014). When there are cross motions for summary judgment, the court should "construe the evidence and all reasonable inferences in favor of the party against whom the motion under consideration is made." Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005).

DISCUSSION

I. ADEA Retaliation Claims (Count II)

United argues that Plaintiffs have failed to exhaust their administrative remedies for their ADEA retaliation claims. A plaintiff seeking to bring an ADEA claim in federal court must first exhaust his administrative remedies. Kleber v. CareFusion Corp., 888 F.3d 868, 889 (7th Cir. 2018); Straub v. Jewel Food Stores, Inc., No. 17 CV 6401 2018 WL 1993394, at *2 (N.D. Ill. April 27, 2018) (stating that "a plaintiff must exhaust his administrative remedies by presenting any . . . ADEA claims to the EEOC before filing a lawsuit"). An ADEA claim that is not specifically referenced in an administrative charge is only cognizable if it is "'like or reasonablyrelated to the allegations of the charge and growing out of such allegations.'" Kleber, 888 F.3d at 889 (quoting Noreuil v. Peabody Coal Co., 96 F.3d 254, 258 (7th Cir. 1996)); see also Krzeptowski v. Corrugated Supplies Co., LLC, No. 17 CV 938, 2018 WL 1378179, at *4 (N.D. Ill. March 19, 2018) (stating that "'[a]t a minimum, this means that the EEOC charge and the complaint must describe the same conduct and implicate the same individuals'") (quoting Ezell v. Potter, 400 F.3d 1041, 1046 (7th Cir. 2005)); Belcher v. Springfield Coll., 17 CV 1086, 2018 WL 437793, at *2 (E.D. Wis. Jan. 16, 2018) (stating that "[b]efore filing a lawsuit alleging claims under Title VII and the ADEA, an individual must exhaust her administrative remedies by: (1) filing a timely charge of discrimination with the EEOC; and (2) filing suit within ninety days of receiving a right to sue letter from the EEOC with respect to the timely charge"); Little v. Illinois Dep't of Pub. Health, No. 16 CV 10377, 2017 WL 5903835, at *2-3 (N.D. Ill. Nov. 30, 2017) (stating that "[t]he proper scope of a judicial proceeding following an EEOC charge is limited by the nature of the charges filed with the EEOC," and that "plaintiffs can only pursue claims in civil proceedings in federal court that could reasonably be expected to grow out of the administrative charges") (internal quotations omitted) (quoting Hopkins v. Bd. of Educ. of City of Chi., 73 F. Supp. 3d 974, 982 (N.D. Ill. 2014) and Reynolds v. Tangherlini, 966 F.3d 1093, 1099-100 (7th Cir. 2013)).

It is undisputed that prior to bringing the instant action, Plaintiffs did not assert unlawful retaliation in any of their filings with the Equal Employment Opportunity Commission ("EEOC") or other administrative agencies. United asserts in Paragraphs 81-84 of its Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment that Plaintiffs asserted unlawful discrimination, but did not assert retaliation in their administrative charges. (United Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment"USOF" Dkt. No. 71 ¶¶ 81-84). United also contends that Bader actually affirmatively represented on his EEOC questionnaire that he had not ben retaliated against. (USOF ¶ 84). Plaintiffs agree to certain of United asserted facts, and offer arguments and objections as to certain others. (R USOF ¶ 81-84). Plaintiffs, however, fail to cite to the record or evidence to support any denials and such facts are therefore deemed to be undisputed pursuant to Local Rule 56.1. See Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004) (stating that "where a non-moving party denies a factual allegation by the party moving for summary judgment, that denial must include a specific reference to the affidavit or other part of the record that supports such a denial"); see also Boss v. Castro, 816 F.3d 910, 914 (7th Cir. 2016) (stating that "[t]he district court's discretion to require strict compliance with Local Rule 56.1 has been upheld time and again").

Plaintiffs have not shown, based on the facts in this case, that their retaliation claims are like or reasonably related to their discrimination claims or would be expected to grow out of an investigation of the charges. See Swearnigen-El v. Cook Cty. Sheriff's...