*fn34,The opinion of the court was delivered by: Reggie B. Walton United States District Judge,GEORGE EMORY, ET AL., PLAINTIFFS, v. UNITED AIR LINES, INC. AND AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, DEFENDANTS." />

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George Emory, et al v. United Air Lines

October 21, 2011 *fn34


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


George Emory, Larry Voll, Lorenzo Sein, Robert Bennett, David Hayes, Dennis Higham, Richard Lanier, and Dean May, the plaintiffs in this civil suit, seek redress based on (1) alleged discrimination on the basis of age in violation of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634 (2006), by United Airlines ("United") and the Air Line Pilots Association, International ("ALPA"), First Amended Complaint ("Am. Compl.") ¶¶ 66-72; (2) alleged fraud and misrepresentation by United and the ALPA, Am. Compl. ¶¶ 80-92;*fn1 (3) the ALPA's alleged breach of the duty of fair representation under the Railway Labor Act (the "RLA"), 45 U.S.C. §§ 151-88 (2006), id. ¶¶ 73-75; and (4) United's alleged wrongful discharge of the plaintiffs based on their age, id. ¶¶ 76-79. The plaintiffs' claims arise out of their "involuntary termination" by United in December 2007, id. ¶ 11, in accordance with a federal regulation promulgated by the Federal Aviation Administration ("FAA") that "barred pilots from flying commercial, passenger aircrafts once they reached the age of 60," id. ¶ 19(a) (citing 14 C.F.R. § 121.383(c) (2007) ("Age 60 Rule")), even "though [the d]efendants knew or should have known that each [plaintiff purportedly] met the statutory requisites" of the Fair Treatment for Experience Pilots Act ("FTEPA" or "Act"), Pub. L. No. 110-135, 121 Stat. 1450 (2007) (codified at 49 U.S.C. § 44729), id. ¶ 11. The FTEPA was enacted on December 13, 2007, and it permits pilots to fly commercial, passenger aircraft until the age of sixty-five. Id. ¶ 22. The plaintiffs therefore claim that they "had the statutory right to continue to fly in their positions [as pilots] without loss of seniority." Id. ¶ 11. Consequently, the plaintiffs seek declaratory relief, as well as compensatory and punitive damages as redress for their terminations. Id. ¶¶ 68, 72, 75, 79, 92.

The plaintiffs also challenge the constitutionality of the FTEPA as "depriv[ing them] . . . of Due Process for denial of [c]ontract and [p]roperty rights under the Fifth Amendment," id. ¶ 94, "den[ying them] . . . fair treatment under the Equal Protection Clause of the Fifth Amendment," id. ¶ 95, and constituting a "Bill of Attainder in violation of Article I, Section 9 of the U.S. Constitution . . . [because it] imposes severe penal measures-loss of the highest career earnings in a profession-on a very small definable group of plaintiff pilots," id. ¶ 96.

Currently before the Court are the following motions: a motion to dismiss for failure to state a claim upon which relief can be granted filed by defendant ALPA, a motion for summary judgment filed by defendant United, and a cross-motion for partial summary judgment filed by the plaintiffs. Upon carefully considering the plaintiffs' First Amended Complaint, the parties' motions, and all memoranda and exhibits submitted with these filings,*fn2 the Court concludes that it must grant the ALPA's motion, grant in part and deny in part United's motion, and deny the plaintiffs' motion for the reasons that follow.

I. Background*fn3

A. Statutory and Regulatory Framework

A brief overview of the statutes and regulations at issue will help elucidate the plaintiffs' allegations in this case. In 1959 the FAA adopted the Age 60 Rule, which prohibited pilots from flying commercial airliners past their sixtieth birthday. See 14 C.F.R. § 121.383(c).*fn4 The FTEPA abrogated the Age 60 Rule, providing that the Age 60 Rule "shall cease to be effective" on the FTEPA's enactment date of December 13, 2007, and permitted pilots to fly commercial airliners until they reached the age of sixty-five. See 49 U.S.C. § 44729(a), (d). However, the FTEPA has only prospective application and contains a "non-retroactivity" provision that significantly limits the ability of pilots who turned sixty before the FTEPA's passage to return to work as pilots. The non-retroactivity provision states:

No 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 --

(A) such person is in the employment of that air carrier in such operations on such date of enactment as a required flight deck crew member; or

(B) such person is newly hired by an air carrier as a pilot on or after such date of enactment without 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.

49 U.S.C. § 44729(e)(1). The FTEPA defines "covered operations" as "operations under part 121 of title 14, Code of Federal Regulations" ("Part 121 operations"), § 44729(b), which are the same operations formerly covered by the Age 60 Rule. Thus, pilots who turned sixty before December 13, 2007, the date of the FTEPA's enactment, may fly commercial airliners only if they were employed as a "required flight deck crew member" in Part 121 operations on December 13, 2007, or if they are newly hired on or after December 13, 2007, and work without credit for any prior experience. The FTEPA also contains a "protection for compliance" provision. This provision states that

[a]n action taken in conformance with [the FTEPA] . . . or taken prior to the date of enactment of this section in conformance with [the Age 60 Rule], 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).

B. Factual and Procedural Background

United is an airline passenger carrier engaged in Part 121 operations, Am. Compl. ¶ 14(a), and the ALPA is a labor organization that represents "all members of the airline piloting profession," id. ¶ 15(a). At all times relevant to this litigation, the ALPA was the collective bargaining representative for pilots employed by United under a Collective Bargaining Agreement ("CBA"). Id. ¶ 14(a). Also, at all times relevant to this case, each plaintiff was an intended beneficiary or third-party beneficiary of the CBA. Id. The CBA therefore governed "[t]he contractual relationship between each plaintiff pilot as an employee and defendant United as an employer." Id. ¶ 14(b).

Each of the eight plaintiffs was born in December 1947 and was employed by United as either a captain or first officer at the time each of them turned sixty years of age, their birthdays all falling on dates between December 3 and December 11, 2007. Id. ¶¶ 12-13. On their sixtieth birthday, each was removed from active flight status but retained their seniority numbers and remained employed by United until December 31, 2007, when the plaintiffs were all "involuntarily terminated." Id. ¶ 12. It was the customary practice of United to permit pilots who reached their sixtieth birthdates to remain as United employees "until the last day of the month in which each turned 60." Id. ¶ 20.

None of the plaintiffs, as they approached their sixtieth birthday, sought a transfer to a different position within United. United Air Lines, Inc.'s Statement of Material Facts In Support of Its Motion for Summary Judgment ("United's SOF") ¶¶ 12-13.*fn5 However, in anticipation of the FTEPA's enactment, each plaintiff did request in December 2007 that they continue as pilots after December 12, 2007. Am. Compl. ¶¶ 50-56. But United and the ALPA interpreted the non-retroactivity limitation provided by exception (A) of the FTEPA to apply solely to flight engineers, and denied the plaintiffs' requests. Id. ¶¶ 24, 25, 28(a), 49, 50(a). George Emory, Larry Voll, and John Bennett also requested, and Larry Voll actually applied on United's Skynet Flight Operations website ("Skynet") for a new hire pilot position with United in late December pursuant to exception (B).*fn6 Id. ¶¶ 51(f), 53(d); Pls. Mem., Nov. 4, 2009 Sworn Declaration of John Bennett ("Bennett Decl.") at 2. On December 20, 2007, the FAA issued an Information for Operators ("InFO") entitled "Legal Interpretation Regarding the Age 65 Law," which noted that a person who was in the employment of an air carrier when he/she attained 60 years of age before December 13, 2007, but who was not conducting part 121 operations for the carrier as a required flight deck crew member may not continue employment with the air carrier[, but t]o continue employment as a pilot under [exception (B)], that person must be treated by the carrier as a 'newly hired pilot . . . without credit for prior seniority' . . . .

Am. Compl. ¶ 51(g); Pls.' Mem., Exhibit ("Ex.") 1 (Dec. 20, 2007 InFO). Furthermore, on March 13, 2008, the FAA published another informational statement advising air carriers that check airmen (also known as second officers) over age sixty and employed as of December 13, 2007, were reasonably considered "required flight deck crew members."*fn7 Am. Compl. ¶ 40.

The plaintiffs repeatedly communicated with United and the ALPA both before and after the FTEPA's enactment regarding the FTEPA's application to them and the continuation of their employment. See id. ¶¶ 51-56; Pls.' Mem., Bennett Decl. at 2; Pls.' Mem., Nov. 10, 2009 Statement of Dean May Concerning the Events Leading Up To and Following December 13, 2007 ("May Decl."). The plaintiffs allege that the ALPA concealed from them "procedures necessary to preserve their rights under the FTEPA." Id. ¶ 50(b). They also claim that United "dissembled, rebuffed, avoided, ignored, and declined each plaintiff's communication both requesting continued employment with United as a pilot after December 12, 2007[,] and requesting clarification and explanation of the [FTEPA's] impact upon these December 1947-born pilots." Id. ¶ 50(c).

After the plaintiffs' employment was terminated on December 31, 2007, they contend that the ALPA "continued to . . . promote[] its . . . interpretation of the exception [to the non-retroactivity provision]." Am. Compl. ¶ 60. Specifically, the plaintiffs allege that the ALPA (1) communicated with "members of Congress to deny the exception to non-retroactivity to this plaintiff class of pilots," id. ¶ 60(a); (2) "fil[ed] a brief . . . as an amicus curiae in litigation between union members and the FAA in the U.S. Court of Appeals for the D.C. Circuit . . . to promote its . . . interpretation of the FTEPA exception to [the] non-retroactivity [provision]," id. ¶ 60(b) (citing Adams v. FAA, 550 F.3d 1174 (D.C. Cir. 2008)); (3) "draft[ed] and promot[ed] correspondence to the FAA and [requested] . . . that Congressman Oberstar send a letter to the FAA asking the FAA to withdraw [its] March 2008 publication," id. ¶ 60(c); (4) "provid[ed] misleading and false advice to [the] plaintiff[s] . . . [regarding whether they] should file a grievance with [the] ALPA . . . and . . . lulled these plaintiff pilots into not filing grievances or charges of breach of duty to fairly represent against [the] ALPA," id. ¶ 60(d); (5) "communicat[ed] with United, the FAA, and members of Congress, [and] . . . advance[ed] the . . . explanation that the exception to non-retroactivity in the Age 65 Law was limited to flight engineers," id. ¶ 60(e); (6) "fil[ed] a collective bargaining grievance in [the] ALPA's name on September 29, 2008[,] against . . . Continental Air Lines . . . attack[ing] Continental's interpretation of the exception (A) to [the] non-retroactivity [provision] in the FTEPA," id. ¶ 60(f); and (7) "refus[ed] through December 24, 2008[,] to assist any senior pilot member of [the] ALPA employed by a Part 121 carrier on December 13, 2007[,] in challenging . . . United's refusal to afford the benefit of . . . exception (A) to [the] non-retroactivity [provision] in the FTEPA to such senior pilot," id. ¶ 60(g).

As a result of the alleged foregoing events, six of the eight plaintiffs filed age discrimination charges against United with the Equal Employment Opportunity Commission ("EEOC"). Am. Compl. ¶ 61. First, on July 1, 2007, prior to the FTEPA's enactment and in anticipation of his nearing sixtieth birthday, George Emory filed an EEOC charge against United alleging that the FAA and United have failed to support the new [international] standard [of not requiring pilots to retire until they reach the age of sixty-five] and lift the existing [A]ge 60 [R]ule. As a result, [p]ilots for American carriers have been and will continue to be terminated when they reach 60 years of age. I have also recently been denied a leave of absence request.

United Def.'s Mem., Appendix ("App.") C (Emory's July 1, 2007 EEOC charge). Emory further stated that he believed that "myself and a class of employees have been discriminated against because of our age, 60, in violation of the [ADEA]." Id. Then, following the enactment of the FTEPA, George Emory and five other plaintiffs filed charges with the EEOC alleging age discrimination under the ADEA. Am. Compl. ¶ 61; United Def.'s Mem., App. B (EEOC charges of six plaintiffs). Each EEOC charge states the date on which the plaintiffs began working for United, that their most recent position was as a pilot, that they were discharged on January 1, 2008, and that "I believe I have been discriminated against because of my age, 60 . . . in violation of the [ADEA]." United Def.'s Mem., App. B (EEOC charges of six plaintiffs). The plaintiffs subsequently received EEOC "right to sue" letters in September and October of 2008. Am. Compl. ¶ 61.

George Emory also filed an EEOC charge against the ALPA alleging age discrimination under the ADEA. Id. ¶ 63. The charge noted that it was for a "continuing action" for the ALPA's refusal to assist union members in repealing the Age 60 Rule, id., and for actively "lobbying against a change in the [A]ge 60 [R]ule," Pls.' Supp. ALPA Opp'n, Ex. 1 (Emory January 22, 2007 EEOC Intake Questionnaire). Specifically, the charge states:

I. I began my employment with United Airlines on January 22, 1979 as a Pilot. On December 8, 2007, I will be turning sixty years old. I will be subjected to the Age 60 Rule, which bars individuals who have reached their sixtieth birthday from serving as pilots or co-pilots in flight operations governed by commercial flights. The union supports the Age 60 Rule. Lobbyist[s] have been supported by both union, the Air Line Pilots International and United Airlines ALPA Master Executive Counsel (MEC).

II. I believe the union's support of this rule discriminates in that it eliminates experienced pilots.

ALPA Def.'s Mem., Ex. 1 (Emory March 11, 2007 EEOC charge against the ALPA). The EEOC continued to process Emory's charge against the ALPA until April 9, 2009, when the EEOC issued a right to sue letter. Am. Compl. ¶ 63.

Based on these factual allegations, the plaintiffs filed a complaint in this Court on December 24, 2008.*fn8 The complaint was amended on August 18, 2009, and seeks relief under a variety of legal theories: violation of the ADEA with respect to United (Count 1), id. ¶¶ 66-68, and separately with respect to the ALPA (Count 2), id. ¶¶ 69-72, breach of the duty of fair representation and breach of fiduciary duty with respect to the ALPA (Count 3), id. ¶¶ 73-75, wrongful discharge with respect to United (Count 4), id. ¶¶ 76-79, and fraud and misrepresentation with respect to both defendants (Count 5), id. ¶¶ 80-92. "Alternatively," the plaintiffs seek a determination that the FTEPA is unconstitutional as "depriving these plaintiff pilots of Due Process for denial of [c]ontract and [p]roperty rights under the Fifth Amendment," id. ¶ 94, "den[ying] these plaintiff pilots fair treatment under the Equal Protection Clause of the Fifth Amendment," id. ¶ 95, and constituting a Bill of Attainder, id. ¶ 96.

On September 25, 2009, the ALPA filed a motion to dismiss the Amended Complaint for failure to state a claim upon which relief may be granted with respect to all of the claims against them (Counts 2, 3, and 5). Dkt. 34. United then filed a motion for summary judgment on October 9, 2009. Dkt. 36. Thereafter, on March, 10, 2010, the plaintiffs filed their own motion for partial summary judgment against United with respect to the ADEA claim (Count 1). Dkt. 57.

II. Standards of Review

A. Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a complaint has properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, Federal Rule of Civil Procedure 8(a) requires that it contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although Rule 8(a) does not require "detailed factual allegations," a plaintiff is required to provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)), in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests," Twombly, 550 U.S. at 555 (omission in original). In other words, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, ___ U.S. at ___, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 547). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). A complaint alleging facts which are "merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

In evaluating a Rule 12(b)(6) motion under this framework, "[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal quotation marks and citations omitted), and the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial notice," EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (footnote omitted). Although the Court must accept the plaintiffs' factual allegations as true, any conclusory allegations are not entitled to an assumption of truth, and even those allegations pleaded with factual support need only be accepted to the extent that "they plausibly give rise to an entitlement to relief." Iqbal, ___ U.S. at ___, 129 S. Ct. at 1950. If "the [C]court finds that the plaintiff[] has failed to allege all the material elements of [his] cause of action," then the Court may dismiss the complaint without prejudice, Taylor v. FDIC, 132 F.3d 753, 761 (D.C. Cir. 1997), or with prejudice, provided that the Court "determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency," Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996) (internal quotation marks and citations omitted).

B. Motion for Summary Judgment or Partial Summary Judgment under Rule 56

The Court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson, 477 U.S. at 248.

When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson, 477 U.S. at 255. The non-moving party, however, cannot rely on "mere allegations or denials of the adverse party's pleading," Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248), and "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted). Simply put, "conclusory allegations unsupported by factual data will not create a triable issue of fact." Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 908 (D.C. Cir. 1999) (internal quotation marks and citations omitted). To survive a properly supported motion for summary judgment, the non-moving party must show that a genuine factual issue exists by "citing to particular parts of materials in the record . . . or . . . showing that the materials cited do not establish the absence . . . of a genuine dispute . . . ." Fed. R. Civ. P. 56(c). Any factual assertions in the moving party's affidavits will be accepted as being true unless the opposing party submits his own affidavits or other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992). In addition, only affidavits "made on personal knowledge . . . [and] set[ting] out facts that would be admissible in evidence" will be considered. Fed. R. Civ. P. 56(c)(4).

III. Legal Analysis

A. Application of the FTEPA

As an initial matter, the Court must determine whether the FTEPA retroactively applied to the plaintiffs in this case, and whether the protection accorded by the compliance provision of the FTEPA bars the plaintiffs' age discrimination claims against United and the ALPA.

1. Exception (A) to the Non-retroactivity Provision of the FTEPA

The defendants contend that the FTEPA prevented the plaintiffs from continuing their employment in Part 121 operations with their prior seniority because each of the plaintiffs turned sixty while the Age 60 Rule was still in effect, and therefore were barred from serving as pilots in such operations. ALPA Def.'s Mem. at 10; United Def.'s Mem. at 17-18. While the defendants admit that the plaintiffs were technically employed by United on December 13, 2007, ALPA Def.'s Mem. at 10; United Def.'s Reply at 4, they contend that the FTEPA's exception

(A) to the non-retroactivity provision "requires more than mere employment." ALPA Def.'s Mem. at 10; United Def.'s Mem. at 18. The defendants read the words "in such operations" in exception (A) as modifying who is a "person" "in the employment of" an air carrier,*fn9 ALPA Def.'s Reply at 4-6; United Def.'s Reply at 6, thereby construing the statute to have two requirements for satisfaction of the exception: (1) that the pilot was employed in Part 121 operations on the date of the FTEPA's enactment, and (2) that the pilot was employed on that date as a "required flight deck crew member." ALPA Def.'s Reply at 3-6; United Def.'s Reply at 6. The defendants claim that neither requirement has been satisfied by the plaintiffs. ALPA Def.'s Reply at 4; ALPA Def.'s Mem. at 10, 11 & n.4; ALPA Def.'s Reply at 6; United Def.'s Mem. at 17-18. In response, the plaintiffs argue that the statute only requires that the pilot be employed as a "required flight deck crew member" for a carrier that engages in Part 121 operations because the words "in such operations" in exception (A) ...

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