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CROCKER v. PIEDMONT AVIATION

November 14, 1989

HOBART N. CROCKER, JR., Plaintiff,
v.
PIEDMONT AVIATION, INC., Defendant


Royce C. Lamberth, United States District Judge.


The opinion of the court was delivered by: LAMBERTH

ROYCE C. LAMBERTH, UNITED STATES DISTRICT JUDGE

 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, codified at 49 U.S.C. App. § 1552 (1982) ("the ADA"), and that defendant Piedmont's refusal to hire him gives rise to this cause of action. He seeks back pay and instatement, or, in lieu of instatement, front pay. Piedmont moves to strike portions of plaintiff's claim for relief because it claims that plaintiff's employment in his occupational specialty with Coral Air and subsequent resignation from that position work to deny plaintiff of his protected status after that resignation. Plaintiff opposes defendant's motion on the grounds that the statute and regulations specify only that subsequent employment in a "covered carrier" would remove Crocker's protected status. This court believes that the motion to strike is more properly termed a motion for summary judgment and will treat it as such. *fn1"

 The Airline Deregulation Act

 The Airline Deregulation Act dismantled much of the regulation of the airline industry. Because Congress recognized that the industry was likely to suffer major upheavals because of the added competition, Congress added an employee protection provision that would help protect workers already in the airline industry during a transition period of ten years. Plaintiff's statement of material facts as to which there is a genuine issue ("Plaintiff's statement of facts"), para. 3. A "covered air carrier" is one which was subject to regulation by the Civil Aeronautics Board, and thus was certified as of October 23, 1978 under the Federal Aviation Act of 1958. § 1552 (d)(1). 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). A "designated employee" is a protected employee who, between October 24, 1978 and October 24, 1988, is involuntarily placed on furlough or is terminated by a covered air carrier due to either 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. 29 CFR §§ 220.10 and 220.01(h); §§ 1552(h)(2) and (h)(4).

 Under the ADA, a protected employee has a "first right of hire, regardless of age, in his occupational specialty" by a covered air carrier whenever it hires additional employees from outside its work force. 49 U.S.C. App. § 1552 (d)(1). On the other hand, there is no required preference if the air carrier is hiring only from a pool of protected employees. Thus, a protected employee's claim arises when, and only when the covered air carrier hires a non-protected employee.

 Facts

 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. Plaintiff's statement of facts, para. 1; Crocker v. Piedmont Aviation, 696 F. Supp. 685, 686 (D.D.C. 1988). On April 6, 1982, Crocker wrote to Piedmont, a "covered carrier" under the ADA, asking its director of personnel to send him a pilot employment application, and enclosing a resume. Piedmont sent the requested application which Crocker completed, noting in a cover letter that he was a "protected employee" under the Employee Protection Program of the ADA. Crocker brought the application to his July 6, 1982 interview, and filled in the few deficiencies in his application shortly thereafter. Crocker, 696 F. Supp. at 687, citing Crocker Deposition at 206-08.

 Piedmont Airlines did not hire Crocker despite Crocker's continued efforts to show his interest in employment with Piedmont. From July 1, 1982 until March 1, 1984, Piedmont hired only candidates "protected" under Section 43 of the ADA. Before and after that time frame, Piedmont has hired candidates who are not protected under the ADA. Crocker, 696 F. Supp. at 687; Plaintiff's statement of facts, para. 6.

 In December of 1982 Crocker began to work as chief pilot for Coral Air, Inc., a "non-covered" commuter airline based in the Virgin Islands. Crocker resigned from Coral Air in July 1983, after being promoted to Director of Operations, and Coral Air stopped operating one week later. Plaintiff's statement of facts, para. 7. He later worked as a pilot captain for Eastern Metro Express, Inc., a non-covered carrier based in St. Croix, from July 1986 until he voluntarily resigned in November, 1986. Id., para. 8. In January 1987, Crocker again found employment as a pilot, this time for Eastern Express, also a non-covered carrier, but quit before he finished ground school in March 1987. Id. para. 9.

 Analysis

 Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Supreme Court has endorsed the plain language of this rule, which allows for the determination by the court of actions in which no issue of material facts has been raised. *fn2" At issue in this case is the duration of a protected employee's first-hire rights. The case is appropriate for summary judgment consideration because the question is one of law.

 Under consideration is whether plaintiff's employment as a pilot at Coral Air, a non-covered air carrier, extinguishes his first-hire rights under the ADA. The regulations specify that if a protected employee retires, resigns, voluntarily quits, or is terminated for cause from a covered airline, the employee does not become designated for first-hire rights. Only if the termination is involuntary, and not for cause, does an employee become designated. Further, if a designated employee is hired by a covered airline or rehired by his or her previous employer, then that employee no longer has first-hire rights with other covered carriers. *fn3" Of course, if that employee is then involuntarily furloughed from her or his new carrier, then that employee would again meet the statutory definition of a designated employee with first-hire rights. Here, from the time Crocker's application to Piedmont was complete until March 1, 1984, Piedmont did not hire non-protected employees. However, by March 1, 1984, Crocker had already secured a job in his occupational specialty at Coral Air.

 Under the regulations, designated employees have the right of first-hire in their "occupational specialty" over non-designated employees at a covered carrier. Occupational specialty means the class, craft, or field of endeavor in which an individual was employed at the time of separation. 29 CFR § 220.01 (k). Piedmont argues that the goal of the ADA is to help protected employees get jobs in their occupational specialty if they are laid off as a result of deregulation. Therefore, they argue, ...


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