Selim v. Pan American Airways Corp.

889 So.2d 149

Shahir SELIM, Appellant, v. PAN AMERICAN AIRWAYS CORP., Appellee.

No. 4D04-29.

District Court of Appeal of Florida, Fourth District.

December 8, 2004.

Ephraim Roy Hess, William R. Amlong and Karen Coolman Amlong of Amlong & Amlong, P.A., Fort Lauderdale, for appellant.

Edward L. Artau of the Law Offices of Edward L. Artau, P.A., Boca Raton, and Robert M. Disch of Sheppard Maullin Richter & Hampton, LLP, Washington, D.C., for appellee.

GUNTHER, J.

Shahir Selim, a pilot and Egyptian Arab, filed suit against his former employer, Pan American Airways Corp., for violations of the Florida Civil Rights Act and the Florida Whistleblower Act. Selim appeals the trial court's entry of a Summary Final Judgment in favor of Pan Am finding that his claims were both collaterally estopped and preempted by union arbitration of employment grievances raised by him against Pan Am. We reverse as to both preclusion and preemption.

Factual Background

Pan Am and the Air Line Pilots Association, International (ALPA), on behalf of Pan Am pilots, entered into a collective bargaining agreement (CBA) in November 1999. The CBA was entered into in accordance with the Railway Labor Act (RLA), 45 U.S.C. § 151, et seq.

Several provisions of the CBA are relevant to this appeal. Section 5 addresses travel expenses and provides that "[a] pilot required by [Pan Am] to perform travel of a special or irregular nature will be reimbursed for reasonable and necessary expenses supported by receipts." Section 6B1. considers moving expenses resulting from pilot reassignment:

[Pan Am] will pay moving expenses when a pilot is displaced from his position and, through the bidding or displacement process, obtains a new position at another domicile. [Pan Am] will not pay expenses for moves of newly hired pilots to their initial assignments or for voluntary moves resulting from vacancy awards to pilots not displaced or not staffing a new domicile.

Section 15 relates to the physical standards required of pilots and provides that "[i]f [Pan Am] reasonably questions the physical or psychological fitness [of] a pilot, it may send him to a Company Medical Examiner." However, the pilot may seek a second opinion, and if that opinion is in agreement with the initial opinion, no further examination shall be undertaken.

Section 19 addresses discipline and discharge and provides that "[a] pilot may not be disciplined or discharged without just cause." Section 20 establishes a grievance process for Pan Am conduct contrary to the provisions of the CBA. Section 21 provides for the establishment of a System Board of Adjustment (Board) with "jurisdiction over disputes between any pilot covered by [the CBA] and [Pan Am] growing out of grievances or out of interpretation or application of any of the terms of [the CBA]." Section 22 addresses seniority and mandates that seniority shall dictate the promotion and assignment of pilots. Section 26 requires Pan Am to furnish identification badges to pilots. Additionally, the section includes a non-discrimination provision:

The provisions of [the CBA] apply equally to all pilots regardless of color, race, creed, national origin, sex, age, disability or former or present military status, in accordance with applicable law.

In 1999, Selim was recalled from furlough by Pan Am to work as a Flight Engineer based at Portsmouth, New Hampshire. He was upgraded to First Officer in January 2000. In May 2001, Pan Am established a new base in Sanford, Florida, and Selim requested, and was granted, a transfer to Sanford. Selim submitted documentation for reimbursement of his moving expenses, but the request was denied by Pan Am. Later in May 2001, Selim was grounded due to concerns about his hearing. He was subjected to multiple medical tests, all of which indicated that his hearing was normal. He was returned to duty status in July 2001.

In August 2001, Selim filed a grievance against Pan Am for failing to upgrade him to Captain even though a pilot with less seniority was upgraded in March 2000. Also in August, Selim noticed that his identification badge had expired while he was grounded. After several unsuccessful attempts to have a new photograph taken, Pan Am arranged for Selim to fly to Portsmouth in October 2001 to have the new badge prepared. He requested reimbursement for travel expenses not arranged by Pan Am, and Pan Am denied the request.

After receiving his new badge, Selim arrived at the airport for his return flight, as a passenger, not as a member of the crew, to Sanford. He was carrying two bags, one of which he planned to carry on, and the agent at the ticket counter informed him that Pan Am had adopted a new policy prohibiting carry-on luggage following September 11. Selim allegedly became argumentative and refused to check the bag. Selim refused to check his bag again at the gate and argued with Pan Am personnel in front of passengers. Selim ultimately checked his bag when he was told he could not board the plane otherwise. Selim denies that he was argumentative at any time during the incident. However, the following day, employment charges were filed against him for his conduct. Following an investigation, he was terminated from his employment later in October for refusing to comply with instructions and company policy and being argumentative in front of passengers and employees.

In December 2002, Selim filed suit against Pan Am. Selim set forth allegations of Pan Am violations of the CBA regarding refusing to pay moving expenses, requiring multiple medical examinations, failing to promote based on seniority, and discriminating in providing an identification badge. He also alleged that Pan Am retaliated against him for filing state and federal employment discrimination complaints based on his termination. Count I of the complaint claimed a violation of the Florida Civil Rights Act (FCRA), Florida Statutes Chapter 760, for discriminatory termination based on national origin/race. Count II alleged a violation of the FCRA for retaliatory termination. Count III set forth a claim of violation of the Florida Whistleblower Act, Florida Statutes section 448.101, for retaliatory termination.

Pan Am then filed a motion to dismiss, or alternatively, for summary judgment. In support of the motion, Pan Am submitted a memorandum of law asserting res judicata, collateral estoppel, and preemption based on the fact that Selim had filed five grievances under the CBA which had been arbitrated by Pan Am's System Board of Adjustment. The five grievances related to moving expenses, physical examinations, travel expenses, promotion to captain, and termination.

The Board found that Sanford was a new domicile and that Selim was entitled to reimbursement for his moving expenses under Section 6B1. of the CBA. Regarding the medical examinations, the Board concluded that the third and fourth examinations were unreasonable and reserved jurisdiction to consider damages. The Board denied reimbursement of travel expenses for the identification badge trip because it found that Selim had been uncooperative in earlier attempts to be photographed, making the trip one not required by Pan Am. Regarding a promotion to captain, the Board determined that Selim's seniority entitled him to an upgrade in March 2000, and required that he be selected for the next captain's training vacancy and be awarded captain's pay from the date of his grievance. Lastly, the Board addressed Selim's termination for disobeying reasonable orders from Pan Am employees. The Board concluded that any disruption following September 11 could have adverse effects, and discipline was required. However, the Board reinstated Selim and reduced the sanction to a ninety-day suspension.

In response to the motion for dismissal or summary judgment and the accompanying memorandum of law, Selim filed an affidavit indicating that although he filed the grievances considered by the Board, ALPA attorneys handled the arbitration so that he was not involved in any strategic decisions. Selim also emphasized that the arbitration did not consider any discrimination claim. Apparently, Selim raised a violation of the nondiscrimination clause of the CBA in each of the five individual grievances against Pan Am, but the Board did not address these claims because no evidence or argument was presented by the ALPA attorneys at the hearing.

The trial court held a hearing on Pan Am's motion for dismissal or summary judgment. Following the hearing, the trial court entered a Final Summary Judgment in favor of Pan Am, finding that Selim's claims were barred by collateral estoppel based on the Board proceeding and preempted by the Airline Deregulation Act (ADA).

Analysis

The standard of review applicable to summary judgment is de novo. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Bruckner v. City of Dania Beach, 823 So.2d 167, 171 (Fla. 4th DCA 2002). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Aberdeen, 760 So.2d at 130.

Res Judicata and Collateral Estoppel

Res judicata means "that when a fact, an issue, or a cause of action has been decided by a court of competent jurisdiction, neither of the parties involved shall be allowed to call into question and relitigate the thing decided, so long as the judgment or decree stands unreversed." AGB Oil Co. v. Crystal Exploration & Prod. Co., 406 So.2d 1165, 1167 (Fla. 3d DCA 1981)(citing Gordon v. Gordon, 59 So.2d 40 (Fla.1952)); see also Huff Groves Trust v. Caulkins Indiantown Citrus Co., 810 So.2d 1049, 1050 (Fla. 4th DCA 2002). For res judicata to apply, four elements must be established: "1) identity in the thing sued for; 2) identity of the cause of action; 3) identity of persons and parties of the action; and 4) identity of the quality in the...