Coomes v. Republic Airways Inc.

JOHN COOMES, Plaintiff, v. REPUBLIC AIRWAYS INC., Defendant.

Case No. 1:19-cv-00034-TWP-MPB

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

March 26, 2021

ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION TO DISMISS

This matter is before the Court on a Motion for Summary Judgment, (Filing No. 51), and a Motion to Dismiss, (Filing No. 55), filed by Defendant Republic Airways Inc. ("Republic"). Pro se Plaintiff Johns Coomes, ("Coomes"), initiated this action against Republic alleging employment discrimination on the basis of age, gender, sexual orientation and negligent retention (see Filing No. 1-3). After the Court granted in part and denied in part an earlier motion to dismiss filed by Republic (see Filing No. 14), Coomes filed a Second Amended Complaint, which in addition to restating his prior allegations (including those counts that had already been dismissed with prejudice), added claims for retaliation based on his engaging in union activity and protected activity under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., ("Title VII") (see Filing No. 33). For the following reasons, the Court grants in part and denies in part Republic's Motion to Dismiss and grants Republic's Motion for Summary Judgment. In addition, the Court resolves two additional related motions: Coomes' "Request for Further Discovery" embedded in his summary judgment response brief, (Filing No. 63), is denied and Coomes' "Motion for More Time Due to Technical Error" is denied as moot, (Filing No. 62-1).

I. BACKGROUND

The following facts are not necessarily objectively true, but, as required when reviewing a motion to dismiss, the court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff as the non-moving party. See Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). The Court has already laid out the facts alleged in an earlier Entry on Republic's prior motion to dismiss, it will largely replicate them here, while adding facts pertinent to Coomes' new retaliation allegations. As for additional facts pertinent to the summary judgment motion, those will be stated at the beginning of the portion of this Entry discussing that Motion. See infra Subsection III.B.1.

Coomes is a heterosexual male, born in 1967. He began working for Republic as a pilot in 2013 and, until February 26, 2020, he was a Captain with the airline (Filing No. 33 at 1, 2, 5).¹ He previously held two successive management positions within Republic as manager of AQP (Advanced Qualification Program) in two different subsidiaries. Id. at 2. At all material times, Coomes is and was a member of the union recognized as the bargaining unit representing the pilots at Republic. He served as a union steward, meaning he represented union members in grievances against Republic. Id.

Beginning in 2016, Coomes was "singled out for harassment and discrimination by Pat Gannon [("Gannon")], a Vice-President due to his Age, Gender, and Sexual Orientation." Id. Gannon oversees and is the ultimate decisionmaker as to who gets positions in the Flight Operations department at Republic. Id. Gannon began his harassment of Coomes "in 2016 with verbal attacks and sexually graphic taunts." Id. He withheld approval of expenses or inappropriately denied claimed expenses and then belatedly approved them, delaying repayment.Id. Gannon initiated retroactive changes to Coomes' training record and refused to correct them when they were brought to his attention. Id. In 2016, he directed the company not to make a full bonus payment to Coomes. Id. Gannon also forced Coomes to undergo unnecessary training that was not required of other employees. Id.

Since 2016, Coomes has been passed over for positions in Flight Operations for which he applied, such as AQP Manager, Chief Pilot, and Assistant Chief Pilot despite being qualified for those positions. Id. Gannon has singled out Coomes and ridiculed him in staff meetings when Coomes was absent. Id. This and other behavior "has created a hostile work environment that generates a level of anxiety in [Coomes] that is persistent and ongoing." Id. Coomes has brought this behavior to the attention of his supervisor and Human Resources, but Republic has done nothing to correct Gannon's behavior. Id.

In October 2017, Republic investigated Gannon for sexual harassment, discrimination, and creating a hostile work environment. Id. at 4. Coomes was interviewed by outside counsel as part of that investigation and he shared some of the facts related above with the investigator. Id. Despite that investigation, Republic took no action to correct the adverse effects of Gannon's behavior. Id. Republic investigated Gannon again in March 2018 for creating a hostile work environment, harassment, and discrimination. Id. "At the conclusion of that investigation, the company published a memo all but naming Pat Gannon as a serial abusive manager, but took no action to remove him from his position of authority." Id.

On August 28, 2018, Coomes submitted a Charge of Discrimination to the Equal Employment Opportunity Commission ("EEOC"). Id. at 3. In this EEOC Charge, he wrote:

I have worked for Republic Airline since 2013. My most recent title is Captain.

Since 2016, I have been continually denied positions in which I have applied for, such as AQP Manager, Chief Pilot, and Assistant Chief Pilot. In 2018, I have noteven been granted interviews for positions I have applied for, despite being qualified. In March 2018, I was not hired for the Simulator Instructor positions and all people hired were young men in their 20s and 30s of varying sexual orientations. In May 2018, I was not hired as the Manager of Flight Operations, and the man hired was around 30. In August 2017, I applied for the Program Manager position, which Republic Airlines [sic] is still seeking applications, even though I am qualified and have never been granted an interview.

I believe I am being discriminated [against] based on my age, 50, and sex, gender, and sexual orientation, in violation of the Age Discrimination in Employment Act of 1967, and Title VII of the Civil Rights Act of 1967 [sic], as amended.

(Filing No. 9-1 at 2.) On September 7, 2018, the EEOC issued a Form 161, Notice of Rights related to the EEOC Charge (Filing No. 33 at 3).

As a part of his newly-added Title VII retaliation claims, Coomes asserts the following as his protected activity:

1. the filing of the EEOC Charge on 8/28/2018

2. the filing of this lawsuit on 1/4/2019; and

3. assisting a coworker regarding a complaint that falls under the jurisdiction of the EEOC and Title VII.

Id. at 3-7. In turn, Coomes alleges that Republic retaliated against him by:

1. terminating his girlfriend/domestic partner in October of 2018;

2. interfering with or denying his ability to schedule flight days during what is known as Schedule Adjustment Periods;

3. interfering with or denying the ability to set union duty days;

4. requiring that he use workers' compensation leave, which he has caused the cancellation of his flight duty time; and,

5. terminating his employment on February 26, 2020.

Id.

As a part of his state law retaliation for union activity claims, Coomes alleges the following as his protected union activity:

1. acting in his capacity as a Steward for the International Brotherhood of Teamsters, Local 357, as well as General Counsel for Transport Workers Union Local 540;

2. actively campaigning to be elected as the President of the Union; and

3. acting in his capacity as a Chief Steward for the International Brotherhood of Teamsters, Local 357.

Id. at 6, 7-8. Coomes asserts that Republic took the same five adverse employment actions noted above in retaliation for his alleged protected union activity. Id.

II. LEGAL STANDARDS

As an initial matter, the Court notes that despite his pro se status (see Filing No. 65 at 1), Coomes—as an attorney (see Filing No. 52-3 at 75)—is "not entitled to the flexible treatment granted other pro se litigants." Cole v. Comm'r of Internal Revenue, 637 F.3d 767, 773 (7th Cir. 2011); see Godlove v. Bamberger, Foreman, Oswald, & Hahn, 903 F.2d 1145, 1148 (7th Cir. 1990) ("Ordinarily, we treat the efforts of pro se applicants gently, but a pro se lawyer is entitled to no special consideration.").

A. Motion to Dismiss Standard

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move to dismiss a complaint that has failed to "state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When deciding a motion to dismiss under Rule 12(b)(6), the court accepts as true all factual allegations in the complaint and draws all inferences in favor of the plaintiff. Bielanski, 550 F.3d at 633. However, courts "are not obliged to accept as true legal conclusions or unsupported conclusions of fact." Hickey v. O'Bannon, 287 F.3d 656, 658 (7th Cir. 2002).

The complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, the United States Supreme Court explained that the complaint must allege facts that are "enough to raise aright to relief above the speculative level." 550 U.S. 544, 555 (2007). Although "detailed factual allegations" are not required, mere "labels," "conclusions," or "formulaic recitation[s] of the elements of a cause of action" are insufficient. Id.; see also Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009) ("it is not enough to give a threadbare recitation of the elements of a claim without factual support"). The allegations must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555. Stated differently, the complaint must include "enough facts to state a claim to relief that is plausible on its face." Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (citation and...