United States District Court, N.D. Illinois
January 14, 2004.
Robert H. Tice, et al., Plaintiffs,
American Airlines, Inc., Defendant
The opinion of the court was delivered by: MATHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
The plaintiffs in this case were pilots for American Airlines who
were forced out of the pilot's seat by an Federal Aviation Administration
regulation that provides that no person can serve as a commercial pilot
or copilot after reaching age sixty. Some planes require a third officer
in the cockpit called a flight officer. The flight officer monitors the
plane's fuel, electrical, hydraulic and other systems but is not a pilot
or a copilot and is therefore not subject to the FAA regulation. The
plaintiffs wanted to be able to "downbid" to flight officer positions but
American would not permit them to do so. It claimed to have a rigid
"up-or-out" policy under which flight officers must be eligible to
advance to the pilot position, see Murnane v. American Airlines,
Inc., 667 F.2d 98, 99 (D.C. Cir. 1981), thereby allowing the airline
to use the flight officer slot to train future pilots. Because the
plaintiffs could not meet this requirement, American would not allow them
to serve as flight officers.
Plaintiffs sued American claiming age discrimination. American
contended that all disqualified pilots are treated alike; a pilot who is
disqualified because he has reached sixty is
treated the same as, for example, a pilot disqualified for health
reasons or for failing the pilot's proficiency test. On this basis,
American moved for summary judgment, arguing that plaintiffs could not
prove discrimination based on age.
In response, plaintiffs disputed the existence of the purported policy.
Once this dispute became crystalized, American moved to dismiss this
action for lack of subject matter jurisdiction. It argued that the
plaintiffs' claim turned on issues that were subject to the mandatory
arbitration provisions of the Railway Labor Act, which applies to
commercial airlines. The court agreed with American, concluding mat
resolution of the dispute over the existence of the alleged policy was
dispositive of the case, thus requiring dismissal of the action for lack
of subject matter jurisdiction. See Tice v. American Airlines,
Inc., Case No. 95 C 6890, 2001 WL 1002466, at *2 (N.D.Ill. Aug. 30,
On appeal, the Seventh Circuit agreed that "the plaintiffs* suit is
dependent on their preferred interpretation of the agreement." Tice
v. American Airlines, Inc., 288 F.3d 313, 315 (7th Ctr. 2002). It
also agreed that the dispute over the existence of the policy had to be
submitted to arbitration under the RLA. Id. The court ruled,
however, that the case should be stayed pending arbitration, not
dismissed. Id. at 317-18, It described alternative scenarios as
to what was to become of the case depending on the arbitrator's ruling.
If the arbitrator's decision "does not resolve the issues in the suit,"
the court said, the case could resume. Id. at 318. If, on the
other hand, the arbitrator ruled that the applicable collective
bargaining agreement expressly or by implication made all disqualified
captains ineligible to serve as flight officers irrespective of age, the
court stated, "they have no possible discrimination claim." Id.
The case was to be stayed pending arbitration, the court said, "in order
to spare the parties the burden of a second
litigation should the arbitrators fail to resolve the entire
The parties proceeded to arbitration, where the arbitrator found that,
as American had contended, it had an across the board policy barring all
persons disqualified to become pilots from serving as flight officers.
American has now moved the Court to dismiss the case for lack of
jurisdiction or alternatively to grant summary judgment, arguing that the
arbitrator left no issues for the Court to resolve. Plaintiffs disagree,
arguing that they should be able to pursue a claim of age discrimination
based on direct evidence irrespective of the arbitrator's ruling. The
Court agrees with American.
As this court previously articulated, if the parties' dispute over the
express or implied terms of the collective bargaining agreement was
dispositive of the plaintiffs' claim, then the court lacks subject matter
jurisdiction over the case. Tice, 2001 WL 1002466 at *2, citing
Brown v. Illinois Central R.R. Co., 254 F.3d 654, 664 (7th Cir.
2001). The Seventh Circuit agreed, differing with this court only on the
question of what should happen to the case pending arbitration. The
Seventh Circuit made it abundantly clear that the plaintiffs' claim was
wholly dependent on their preferred interpretation of the collective
bargaining agreement. Tice, 288 F.3d at 315. ("[T]he only basis
on which Plaintiffs could [prevail] is if the collective bargaining
agreement between the airline and its pilot union entitles more senior
pilots to bump less senior ones from those positions, In the absence of
such a contractual provision, an employer would have no duty to give
another job to an employee validly disqualified from holding his present
job.") Id. hi short, the Seventh Circuit has made it clear that
the arbitrator's decision against the plaintiffs is dispositive of the
The court rejects plaintiffs' contention that we should consider their
theory, which they argue was not disposed of by the arbitrator's
decision. There are two problems with plaintiffs' argument. First, it has
been forfeited by plaintiffs. The time for plaintiffs to assert this
theory of liability was in their opposition to American's summary
judgment motion, but they did not do so. Second, even if not forfeited,
the theory lacks merit. If no disqualified pilot can downbid, it
is not age discrimination to refuse to allow downbidding by those
disqualified pilots whose disqualification is based on their age.
Trans World Airlines, Inc. v. Thurston, 469 U.S. Ill, 121
(1985). To hold otherwise would essentially require preferential
treatment based on age, which the ADEA does not require. Tice,
288 F.3d at 318.
Plaintiffs' remaining arguments essentially amount to an attack on the
merits of the arbitrator's ruling. The Court agrees with American that
such an attack is without merit given the exceedingly narrow scope of
review that applies to arbitration decisions under the RLA. See,
e.g., Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 91, 93
(1978). The arbitrator complied with the RLA's requirements and did not
exceed his jurisdiction when he considered American's policies and
practices and the collective bargaining agreement's acquiescence in those
For the reasons stated above, defendant's motion to lift the stay and
enter a dismissal order [Docket #269] is granted. The Clerk is directed
to enter judgment dismissing the case for lack of subject matter
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