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Carswell v. Air Line Pilots Association

March 4, 2008


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


Gene H. Carswell, the plaintiff in this civil lawsuit, seeks "to remedy [alleged] discrimination on the basis of age[] in violation of the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 62[1-34 (2000)] ([the] 'ADEA')," as well as alleged "breach of [the] duty of fair representation and breach of contract" under the Railway Labor Act, 45 U.S.C. §§ 151-88 (2000), by US Airways Group, Inc. ("US Airways"), the Air Line Pilots Association, International (the "ALPA"), and the American Federation of Labor and Congress of Industrial Organizations (the "AFL-CIO," and collectively with the ALPA the "Union Defendants"). Plaintiff's First Amended Complaint (the "Am. Compl.") ¶ 1.*fn1 The plaintiff's claims arise out of the "forced termination[]" of the plaintiff by US Airways in 2007, id., in accordance with a federal regulation promulgated by the Federal Aviation Administration (the "FAA") that "bar[red] individuals who have reached their 60th birthday from serving as pilots or co[-]pilots in flight operations covered by [the regulation]," id. ¶ 9 (citing 14 C.F.R. § 121.383(c) (the "Age 60 Rule")). Specifically, "the [d]efendants [allegedly] refused to protect the [p]laintiff's employment status by retaining him . . . , supporting his [request for an exemption from the 'Age 60' Rule], or lobbying for a change to the Age 60 Rule." Id. ¶ 15. Consequently, the plaintiff "seeks declaratory and injunctive relief," as well as compensatory damages. Id. ¶ 1.

All three defendants have filed separate motions to dismiss the plaintiff's amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). US Airways Group, Inc.'s Rule 12(b)(6) Motion to Dismiss Plaintiff's Amended Complaint and Memorandum of Points and Authorities in Support Thereof (the "US Airways Mot.") at 1, Motion to Dismiss Pursuant to [Federal Rule of Civil Procedure] 12([b])(6) of Defendant Air Line Pilots Association, Int'l at 1, Defendant American Federation of Labor and Congress of Industrial Organizations' Motion to Dismiss Plaintiff's Amended Complaint at 1.*fn2 After carefully considering the plaintiff's amended complaint, the parties' motions, and all memoranda and exhibits relevant thereto,*fn3 the Court concludes for the reasons that follow that it must grant all three motions to dismiss.

I. Background

The following facts are either alleged by the plaintiff in his amended complaint or are matters of public record. "The FAA first promulgated the Age 60 Rule in 1959 pursuant to its mandate under the Federal Aviation Act of 1958[, 49 U.S.C. §§ 40101-50105 (2000),] to ensure air safety." Prof.'l Pilots Federation v. Fed. Aviation Admin., 118 F.3d 758, 760 (D.C. Cir. 1997) (citing 24 Fed. Reg. 9767 (Dec. 5, 1959)). The rule provided in pertinent part that "[n]o certificate holder [could] use the services of any person as a pilot on an airplane engaged in operations under this part if that person ha[d] reached his 60th birthday," and that "[n]o person [could] serve as a pilot on an airplane engaged in operations under this part if that person ha[d] reached his 60th birthday." 14 C.F.R. § 121.383(c). Despite a litany of challenges to the propriety of the Age 60 Rule both in this circuit and beyond,*fn4 the rule remained in effect for over forty years.

On December 13, 2007, Congress passed the Fair Treatment for Experienced Pilots Act, Pub. L. No. 110-135, 121 Stat. 1450 (2007), which amended 49 U.S.C. § 44729. Under the amended § 44729, "a pilot may serve in multicrew covered operations until attaining 65 years of age," 49 U.S.C. § 44729(a), and the Age 60 Rule is no longer in effect, id. § 44729(e). The amended statute also contains a non-retroactivity provision, which states that "[n]o person who has attained 60 years of age before the date of enactment of this section may serve as a pilot for an air carrier engaged in covered operations unless" the pilot was employed as a "required flight deck crew member" when the law went into effect or is "newly hired by an air carrier as a pilot" after the enactment of the law and receives no "credit for prior seniority or prior longevity for benefits or other terms related to length of service prior to the date of rehire under any labor agreement or employment policies of the air carrier." Id. § 44729(e)(1). The statute further provides that "[a]n action taken in conformance with . . . [14 C.F.R. § 121.383(c)]" when that regulation was still in effect "may not serve as a basis for liability or relief in a proceeding[] brought under any employment law or regulation[] before any court or agency of the United States or of any State or locality." Id. § 44729(e)(2).

The plaintiff, "a resident of Hendersonville, North Carolina," Am. Compl. ¶ 61, was hired by US Airways, "a [c]orporation headquartered in Tempe, Arizona, but having major operations in Washington, D.C.," id. ¶ 1 in 1977, and remained a US Airways employee for 29 years, id. ¶ 62. At the time of his hiring, both the ALPA and US Airways warned the plaintiff "that he had to retire when he reached [age sixty]," id. ¶ 63, and mandatory retirement at the age of sixty is a provision of the collective bargaining agreement between the ALPA and US Airways (the "CBA"), id. ¶ 65. When the plaintiff reached his 60th birthday on January 12, 2007, id. ¶ 64, he "applied for an exemption [from the Age 60 Rule] . . . and asked US Airways not to terminate him," but "US Airways did not support the exemption request," id. ¶ 65. Instead, in conformance with the Age 60 Rule, which was still in effect at that time, US Airways "forced the [p]laintiff to retire on Feb[ruary] 1, 2007," id., which resulted in the plaintiff filing a "charge of discrimination against [the] ALPA, US Airways, and [the] AFL-CIO with the Equal Employment Opportunity Commission (the 'EEOC')." Id. ¶ 43.

The plaintiff filed his complaint in this Court on April 7, 2007, and filed an amended complaint on June 22, 2007. As set forth in his amended complaint, the plaintiff alleges that US Airways has "violated all standard norms associated with federal age discrimination laws" by "institut[ing] a policy that require[d] 99.9% of its pilots to retire from flying[] or be terminated[] by the first day of the month coincident with [(]or next following[)] the pilots' 60th birthday." Id. ¶ 3. He further alleges that the Union Defendants "colluded with US Airways to discriminate against US Airways pilots." Id. ¶ 5. Specifically, the plaintiff alleges that the Union Defendants "continue[d] to support the Age 60 Rule and . . . lobby against the pilots they [we]re supposed to be representing," id. ¶ 27, while "US Airways . . . refused to object to the Age 60 Rule, lobby against the Age 60 Rule, or request exemptions from the FAA for the . . . [p]laintiff and other similarly situated employees," id. ¶ 26.

Based upon these allegations, the plaintiff asserts three causes of action against the defendants.*fn5 First, he claims that the defendants "willfully violated the ADEA by discriminating on the basis of age knowingly and with reckless disregard of the law," id. ¶ 80, and by "engag[ing] in collusion to discriminate against the [p]laintiff and others similarly situated," id. ¶ 93. Second, he claims that the Union Defendants breached the CBA "when they promoted an illegal age discrimination policy under the pretense of it being a 'safety measure.'" Id. ¶ 99. Third, he claims that the Union Defendants breached their duties of fair representation owed to the plaintiff when they "conspired with US Airways to permit his discharge, failed to represent his interests, and took active steps to deprive him of his employment." Id. ¶ 104.

US Airways filed a motion to dismiss the plaintiff's complaint on June 25, 2007. In support of its motion, US Airways argues (1) that its adherence to the Age 60 Rule at the time of the plaintiff's termination could not have violated the ADEA, US Airways Mot. at 7-10, (2) that the ADEA does not compel employers to lobby or object to the application of federal law on behalf of their employees, id. at 10, and (3) that US Airways cannot be held liable for its failure to lobby for any changes to the Age 60 Rule without violating its First Amendment rights under the "Noerr-Pennington doctrine" established by the Supreme Court in Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers v. Pennington, 381 U.S. 657 (1965), id. at 10-12. The plaintiff counters that even if US Airways was justified in terminating the plaintiff's employment as an airline captain, it nevertheless violated the ADEA by failing to find an alternative position for him, Pl.'s Opp'n to US Airways Mot. at 4-7, and that US Airways either violated its own fiduciary duty to the plaintiff, id. at 7, or aided and abetted the Union Defendants' breaches of their fiduciary duties, id. at 8-10.

The ALPA filed a separate motion on July 18, 2007, seeking to dismiss all three of the plaintiff's claims against it. With respect to the plaintiff's ADEA claim, the ALPA incorporates the arguments raised by US Airways, noting that "if US Airways d[id] not violate the ADEA by following the Age 60 Rule . . . , then obviously [the] ALPA d[id] not violate the ADEA by allowing US Airways to follow the Age 60 Rule." ALPA Mem. at 4. The ALPA further asserts that its duty of fair representation owed to the plaintiff does not impose a duty to lobby or seek exemptions from the Age 60 Rule on behalf of its members, id. at 8-11, and that any imposition of liability based upon the breach of a duty to lobby would run afoul of the Noerr-Pennington doctrine, id. at 9-10. With respect to the plaintiff's breach of contract claim, the ALPA argues that, aside from its lack of merit, the claim is defective because the Railway Labor Act "mandates that all claims involving interpretation or application of collective bargaining agreements be submitted to a grievance adjustment process that culminates in arbitration." Id. at 12.

The plaintiff does not challenge the ALPA's characterization of the scope of its duty of fair representation in his opposition. See Pl.'s Opp'n to ALPA Mot. at 2-4 (asserting only that "there can be no dispute that [the] ALPA owes a duty of fair representation to all of its members," and that "[i]t will ultimately be up to the trier of fact to determine if [the] ALPA has breached its duty of fair representation to [the plaintiff]"); ALPA Reply at 2 ("the [plaintiff's] opposition memorandum does not contest any of the points from our opening brief with respect to the duty of fair representation"). Instead, he argues at length that the Noerr-Pennington doctrine does not apply in this case, Pl.'s Opp'n to ALPA Mot. at 4-9, or that, at a minimum, the plaintiff is entitled to discovery to demonstrate why the doctrine is inapplicable, id. at 9-10. He also contests the ALPA's argument that his breach of contract suit is subject to mandatory arbitration, asserting that "only minor disputes must be referred to arbitration under the Railway Labor Act," id. at 10 (emphasis in original), and that the "ALPA's [alleged] breach [of the CBA] goes to the very heart of the contract between the parties," id. at 11.

In addition to the arguments raised by the ALPA, the AFL-CIO argues in its separate motion to dismiss that it was "not a signatory to the contract at issue," AFL-CIO Mem. at 4, and therefore could not have breached that agreement nor "cause[d]" the plaintiff's termination as required to state a claim under the ADEA, id. at 4-7. The AFL-CIO further argues that it cannot be held vicariously liable for any actions taken by the ALPA because it lacks the requisite control over the ALPA to establish a principal-agent relationship between the two entities. Id. at 7-10. In his opposition to the AFL-CIO's motion to dismiss, the plaintiff avers that if he is permitted discovery of the AFL-CIO's records, he will be able to verify that, inter alia, "the AFL-CIO did not allow [the] ALPA to be autonomous," Pl.'s Opp'n to AFL-CIO Mot. at 6, thereby rendering the AFL-CIO vicariously liable for the ALPA's violation of the ADEA, breach of the duty of fair representation, and breach of contract, id. at 9-10, 13-16. He also asserts "that the AFL-CIO had an affirmative responsibility toward the plaintiff to provide a discrimination-free workplace," or, "[a]t the very least, . . . a duty to intervene once the pilots alerted it of discriminatory treatment," id. at 9, and that all three defendants acted as an "integrated enterprise in administering, controlling, and perpetuating the [A]ge 60 retirement policy," id. at 11-13.

II. Standard of Review

As the Court previously noted, all three defendants seek dismissal of all claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6). On a motion to dismiss under Rule 12(b)(6), the Court "must treat the complaint's factual allegations as true and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged." Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (internal quotation and citation omitted). Factual challenges are not permitted under Rule 12(b)(6), and the Court may only consider the facts alleged in the complaint, any documents attached as exhibits thereto (or incorporated therein), and matters subject to judicial notice in weighing the merits of the motion. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). The Court's focus is therefore restricted to the facts as alleged by the plaintiff, which must be sufficiently detailed "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965 (2007).

III. Legal Analysis

Given the plaintiff's concession that a union's duty of fair representation does not impose a duty to lobby or seek individual exemptions from federal rules,*fn6 his claims predicated on the alleged breach of that duty by the ALPA and the AFL-CIO must be dismissed. Thus, the only issues left for resolution by the Court are (1) whether the plaintiff states a valid claim under the ADEA if, as he alleges, the defendants colluded to lobby against a change to the Age 60 Rule and refused to seek an exemption from the rule on the plaintiff's behalf, and (2) whether the Court can consider the plaintiff's claim for breach of ...

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