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August 3, 1988

HOBART N. CROCKER, JR., Plaintiff,

The opinion of the court was delivered by: LAMBERTH


 Plaintiff Hobart N. Crocker, Jr. claims he had a right of first hire as a "protected employee" under section 43 of the Airline Deregulation Act of 1978, and that defendant Piedmont's refusal to hire him gives rise to this cause of action. He seeks reinstatement and back pay. Piedmont moves for summary judgment, while Crocker moves for partial summary judgment that he is a protected employee under the Act.


 Plaintiff Crocker was employed as a pilot by Air New England from 1973 until it ceased operations on October 31, 1981, an apparent victim of Congress' deregulation of the airline industry. On April 6, 1982, Crocker wrote to Piedmont asking its director of personnel to send him a pilot employment application, and enclosing his resume along with a stamped self-addressed envelope which he said were "for your general information and convenience." The two page resume listed a thumbnail employment history, including Crocker's recently completed service with Air New England, although there was no indication why Crocker's employment with the carrier had been terminated. Appendix to Motion for Summary Judgment (App. MSJ), Tab B. Attached to the resume was a page listing various "specialized flying and administrative experience" accumulated by Crocker during his career.

 Piedmont sent the requested application to Crocker which he completed, attaching a cover memorandum addressed to L. R. Welch, Jr., Piedmont's Director of Personnel Administration. App. MSJ, Tab C. The memorandum stated that although Crocker was 56 years old, his age should not be a barrier to being hired since he was "a protected employee' under the Employee Protection Program of the Airline Deregulation Act." Crocker brought the completed application to an interview on July 6, during which he met with Welch and another Piedmont official. At the time of the interview, Crocker had failed to take the flight engineers' written exam or obtain a First Class Physical Certificate, but he corrected these apparent deficiencies in his application shortly afterward. Crocker Deposition at 206-208.

 Crocker received no offer following the interview, but nonetheless endeavored to keep his application current over the next two years in hopes of eventually receiving employment from Piedmont. Given the importance to this case of whether he did keep his application active or current, this factual issue will be examined closely.

 Piedmont's application form states, "Please note that this application will remain active for 6 months from the date it is submitted. It will then be discarded, unless otherwise updated, and the applicant must renew his or her application if still desiring employment." App. MSJ, Tab C. In a form letter to applicants, Welch states "You may update the application information by mail, indicating your continued interest in being employed by Piedmont. Applications are removed from our active files after six months unless updated." App. MSJ, Tab D. In addition, Crocker understood Welch to say orally it was sufficient to just keep Piedmont "abreast, keep us updated as to what you're doing, . . ." in order to keep his application on active status. Crocker Deposition at 211-212.

 Following the interview, Crocker wrote Welch a series of letters and placed a number of phone calls to his office expressing his continuing desire to work at Piedmont. On September 17, 1982, some two and a half months after the interview, Crocker wrote Welch stating his disappointment that he had heard nothing from him, and saying, "I continue to hope that soon this will be changed and that I will be called for training. . . . I would welcome the opportunity to work in such an atmosphere and I can assure you that Piedmont would receive my very best efforts and experience." App. MSJ, Tab F.

 On May 23, 1983 Crocker wrote again, under the caption "Re: Letter of Up-date ", informing Welch he had taken a job with a commuter airline, and giving him his new address and phone number. "One fact has not changed however," he said, "and that is my desire to work for Piedmont." Crocker reiterated that he was a protected employee under the Airline Deregulation Act, and asked that Welch call him if he needed any further information on his current employment status. Crocker's anxious desire to work for Piedmont is clearly evident in the letter. Id.

 On October 27, 1983 Crocker wrote again, again expressing disappointment that he hadn't heard from Welch "in spite of several telephone calls to your office indicating my continued desire for employment with Piedmont," and reiterating his status as a protected employee. "I am still hopeful for a flight crew position, . . . I hope that I will hear from you soon." The letter listed a new address in the heading, though this was not pointed out in the body. Id.

 Crocker wrote again on January 5, 1984, under the caption "Re: Letter of Up-Date," giving yet another address (this time listed in the body of the letter) and telephone number, and reiterating his status as a protected employee under the Airline Deregulation Act and his steadfast desire to work for Piedmont. Id. This was Crocker's final letter to Welch until Spring, 1986, id., shortly before he filed suit.

 There is one other factor in this equation: from July 1, 1982 until March 1, 1984, Piedmont hired only protected employees, or its own personnel as pilots. On the other hand, the parties agreed at oral argument that the carrier hired non-protected employees both before and immediately after that time frame. See MSJ at 9-10. Crocker filed this action on June 17, 1986.


 A. The Airline Deregulation Act of 1978

 As a result, Congress included an employee protection program in section 43 of the ADA, codified at 49 U.S.C. App. § 1552 (1982), which offers substantial protection for certain industry employees. A "protected employee" is any person, other than an officer or director of a corporation, who had been employed for at least 4 years by a covered air carrier on October 24, 1978. § 1552 (h)(1). An "eligible" protected employee is one who, on account of a "qualifying dislocation" has been deprived of employment, or has been adversely affected with respect to his compensation. § 1552 (a) (1). A "qualifying dislocation" means bankruptcy of the carrier or a "major contraction" resulting in reduction of at least 7 1/2 percent of the total number of full-time employees of the carrier within a 12-month period. §§ 1552(h)(2) and (h)(4).

 The protection afforded by the statute was sweeping. First, eligible protected employees were entitled to receive monthly payments from the government for 72 months after a qualifying dislocation, or until the recipient obtained other employment. § 1552 (e).

 In addition, any

protected employee of [a covered] air carrier . . . who is furloughed or otherwise terminated by such an air carrier (other than for cause) prior to the last day of the 10-year period beginning October 24, 1978 shall have first right of hire, regardless of age, in his occupational specialty, by any other [covered] air carrier hiring additional employees. . . . Each such air carrier hiring additional employees shall have a duty to hire such a person before they hire any other person, except that such air carrier may recall any of its own furloughed employees before hiring such a person. Any employee who is furloughed or otherwise terminated (other than for cause), and who is hired by another air ...

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