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September 30, 2004.

ROBERT TERRY, Plaintiff,
AMERICAN AIRLINES, INC., a corporation, Defendant.

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


Plaintiff Robert Terry is a pilot for Defendant American Airlines, Inc. In late 2000, American referred him for a "fitness for duty" examination. He entered the Betty Ford Center, where he acknowledged being an alcoholic and was diagnosed as alcohol dependent. In this lawsuit, Terry contends that he is not in fact alcohol dependent; that he has not had a drink since he entered treatment; and that he told his therapists that he is an alcoholic only because he had no choice and would otherwise not have been released from treatment. American's refusal to return him to the air, Terry claims, constitutes discrimination on the basis of a perceived disability in violation of the Americans with Disabilities Act and on the basis of his race, African-American, in violation of Title VII of the Civil Rights Act of 1964.

Defendant American Airlines has moved for summary judgment. American argues that Plaintiff is not a "qualified person" because under Federal Aviation Administration regulations, Plaintiff may not return to flight status until he has a first-class medical certificate or a "special issuance" from the FAA. American insists it is prepared at any time to forward Plaintiff's medical records to the FAA for its review, but he has refused to consent to the release of his records. American contends that it is Plaintiff's failure to obtain FAA clearance, not his race or perceived disability, that is the reason he has not resumed work as a pilot. For the reasons set forth in this opinion, American's motion is granted. FACTS*fn1

  The Parties

  Defendant American Airlines, Inc., is an air carrier in the business of transporting passengers in interstate commerce. (Def.'s 56.1 ¶ 2.) American holds an operating certificate from the Federal Aviation Administration ("FAA") and is required by that certificate to maintain safety as its highest priority. (Id. ¶ 3; 49 U.S.C. §§ 40101, 44705.) Plaintiff Robert Terry has been employed by American since 1979. In 1989, Terry became a captain, with ultimate command of the airplane during flight and final responsibility for the safety of passengers, crew, cargo, and equipment. (Def.'s 56.1 ¶¶ 5, 6.)

  In 2000, American had four Chief Pilots at O'Hare: Captain Mark Pospisil, Captain Steven Allen, Captain Ed Vogler, and Captain John Jirschele, who held the position of Base Manager. (Id. ¶ 22.) Dr. Nestor Kowalsky was until 2003 the Area Medical Director at O'Hare, responsible for working with pilots and unions regarding medical eligibility for safety-sensitive duties and assisting with completion of the evaluation of any psychiatric or psychological fitness-for-duty examinations. (Id. ¶¶ 24, 25.)

  FAA Flight Regulations

  Federal regulations require any pilot to hold a first class medical certificate from the Federal Air Surgeon of the FAA. (Id. ¶¶ 7, 8; 14 C.F.R. §§ 61.3(c), 61.23(a)(1), 121.437(a).) Under FAA regulations, a first-class medical certificate expires six months after the pilot's medical examination. 14 C.F.R. § 61.23(d)(1)(i). Regulations prohibit a pilot from flying if he is aware of any condition that would disqualify him under FAA medical guidelines, even if he holds a valid medical certificate; regulations also prohibit an airline from permitting a pilot to fly unless he has a current medical certificate and is otherwise qualified. (Id. ¶ 9, 10; 14 C.F.R. §§ 61.53(a)(1), 121.383.) FAA regulations impose the following standards for eligibility for the required medical certificate:
(a) No established medical history or clinical diagnosis of. . . . . . .
(4) Substance dependence, except where there is established clinical evidence, satisfactory to the Federal Air Surgeon, of recovery, including sustained total abstinence from the substance(s) for not less than the preceding 2 years.
A further and independent requirement for eligibility is
(B) No substance abuse within the preceding 2 years defined as:
(1) Use of a substance in a situation in which that use was physically hazardous, if there has been at any other time (a similar incident). . . .;
(2) A verified positive drug test. . . .;
(3) Misuse of a substance that the Federal Air Surgeon, . . . finds —
(i) Makes the person unable to safely perform the duties or exercise the privileges of the airman certificate applied for or held; or
(ii) May reasonably be expected . . . to make the person unable to perform those duties or exercise those privileges.
14 C.F.R. § 67.107. One further eligibility requirement is that the pilot have no "established medical history or clinical diagnosis of . . . a transient loss of control of nervous system function(s) without satisfactory medical explanation of the cause." 14 C.F.R. § 67.109.

  Under current regulations, a diagnosis or history of alcohol dependence does not necessarily disqualify a pilot, so long as he has obtained treatment, remained abstinent, and successfully participated in "aftercare" programs. (Def.'s 56.1 ¶ 18.) During the time period relevant here, American had a three-stage program for alcohol-dependent pilots. The program required that the pilot (a) acknowledge the problem; (b) undergo evaluation and therapy, usually including an inpatient treatment program and extended aftercare; and (c) following successful therapy, complete further psychological and psychiatric testing to rule out other disqualifications. (Id. ¶ 19.)*fn2

  Incidents in April 2000

  On April 1, 2000, Plaintiff planned to exercise the privilege he enjoyed as an American employee to fly as a non-revenue passenger from Chicago to Atlanta. (Id. ¶ 27.) Dressed in full uniform, Plaintiff arrived more than ten minutes before the airplane's scheduled departure, when, as he knew from his experience, the plane would not yet have "pushed back" from the gate. When the jet bridge agent told Plaintiff that the plane had in fact already pushed back, Plaintiff was suspicious. He proceeded to walk down the jet bridge and confirm his suspicion that the agent's statement was not true and that the plane remained in the gate area. Plaintiff had a brief discussion with the jet bridge agent in which he called her "worthless." (Plaintiff's Response ¶ 28.) Although it was not his direct responsibility to oversee the boarding process, Plaintiff "successfully enabled" three passengers, who presumably otherwise would have been denied boarding, to board the airplane when he confirmed to the gate agent that the plane had not pushed back. (Id. ¶ 29.)

  Captain Pospisil received a report concerning the April 1 incident. A Customer Service Manager reported that Plaintiff had addressed the jet bridge agent "in an extremely abusive manner" and that when she asked him to leave the jet bridge, he caused a "scene" at the gate podium. The jet bridge agent reported that Plaintiff had approached her while "yelling and waving his arms," had called American's agents "dumb" and "ignorant," and had accused her of not knowing how to do her job. The pilot, who claimed he could hear the exchange through the open cockpit window, characterized Plaintiff's behavior as "an embarrassment to us all." Plaintiff denies these accusations, but does not deny that the reports were in fact made to Captain Pospisil. (Def.'s 56.1 ¶ 30; Plaintiff's Response ¶ 30.) He points out, further, that the jet bridge agent was never disciplined for the incident and that the customer service manager said nothing to the jet bridge agent about her false statement that the plane had pushed back. (Pltf.'s 56.1(b)(3)(B) ¶ 112.)*fn3

  Eleven days later, Plaintiff was flying as Captain on a flight leaving Miami. (Def.'s 56.1 ¶ 31.) An agent entered the plane and, without checking to see if there was room for his bags in another space on the airplane, advised Plaintiff that his bags were going to be moved from the forward cabin of the airplane to the baggage section of the airplane in order to make room for a wheelchair. (Id. ¶ 32; Plaintiff's Response ¶ 32.)*fn4 Plaintiff notes that the agent did not ask to move anyone else's bags and made her statement "as a command instead of a request." (Pltf.'s 56.1(b)(3)(B) ¶ 115.) He points out, further, that she made no attempt to find out whether there was room in the other forward cabin, nor did she ask whether bags could be removed from that other cabin rather than removing Plaintiff's. (Id.) Plaintiff became annoyed, raised his voice, and told the agent that if his bags were moved, the flight would not move. (Def.'s 56.1 ¶¶ 33, 34.) In response to a false allegation that there had been physical contact between Plaintiff and the agent, a chief pilot from the Miami base was called to the aircraft. (Plaintiff's Response ¶ 35.)

  This incident also resulted in a report to Captain Pospisil. Specifically, the Flight Operations Manager reported that when she boarded the aircraft to ask Plaintiff to move his bag, Plaintiff threatened not to proceed with the flight, using "a very loud and demanding voice." When she spoke to Plaintiff about the rules concerning wheelchair storage, Plaintiff "put his hands up towards my face so as to not listen to me and told me to get off his aircraft." Plaintiff denies that the regulations require that a wheelchair be stowed in the forward cabin, but does not deny that the Flight Operations Manager complained about the incident, calling his conduct "totally uncalled for" and "unprofessional," and observing that his "behavior and insensitivity towards handicap[ped] passengers [was] totally unacceptable." (Def.'s 56.1 ¶ 36; Plaintiff's Response ¶ 36.) Nor does Plaintiff deny the accuracy of the Miami Chief Pilot's e-mail report to Captain Pospisil that when the Chief Pilot arrived at the plane and asked Plaintiff about the wheelchair, Plaintiff got up out of his seat, showed the Chief Pilot where his bags were stowed and stated, "they ain't moving." (Plaintiff's Response ¶ 37.) The Miami Chief Pilot also reported that the plane left fifteen minutes late. (Def.'s 56.1 ¶ 37.) Plaintiff attributes the delay to the conduct of the agent, but offers no evidentiary support. (Pltf.'s 56.1(b)(3)(B).) It is undisputed that neither the agent nor the supervisor in Miami was disciplined for this incident. (Id.)

  On April 12, 2000, Captain Pospisil directed Plaintiff to meet with him to discuss these two incidents. Plaintiff attempted to do so on April 12 or 14, but arrived just one-half hour before the scheduled departure of a flight for which he was the pilot. Captain Pospisil determined not to proceed with the meeting at that time, as he believed Plaintiff should be on the aircraft and that such a meeting would require Plaintiff to have union representation. (Def.'s 56.1 ¶ 39.) Plaintiff denies that Pospisil told him that a union steward was necessary or that Plaintiff should come back another time. (Plaintiff's Response ¶ 39.) He also denies Defendant's assertion that Captain Pospisil made repeated efforts to contact him, but acknowledges that his answering machine at home was broken and that he was unable to retrieve e-mail at that time. (Id. ¶ 40.) Plaintiff ultimately met with Captain Pospisil, Captain Vogler, and Tom Bloom on May 23, 2000, at which time he reviewed information about the two incidents and had the opportunity to tell Captain Pospisil "what really occurred." (Def.'s 56.1 ¶ 41; Plaintiff's Response ¶ 41.) Further Reports Concerning Plaintiff's Conduct

  Between April and November 2000, Captain Pospisil received reports about Plaintiff from Captain Gary Johnson, who was the head of the pilots union's Professional Standards Committee at O'Hare. (Def.'s 56.1 ¶ 43.) Captain Johnson told Captain Pospisil that other pilots were not comfortable flying with Plaintiff because of his volatility, belligerence, and mood swings. Captain Johnson also told Pospisil that he would not attempt further contact with Plaintiff because Plaintiff had yelled at Johnson and refused to listen to him. (Id.) Plaintiff denies yelling at Captain Johnson and asserts that Johnson's allegations are false, but he cites no evidence that rebuts Captain Pospisil's testimony that these complaints were in fact made during the relevant time period. (Plaintiff's Response ¶ 43.) Also during this time frame, one of Plaintiff's co-pilots, First Officer Jim Bennett, reported to Captain Pospisil that Plaintiff had fallen asleep in the cockpit, suffered from volatile mood swings, and had an unusual eating pattern. (Def.'s 56.1 ¶¶ 44, 45.) Plaintiff denies that Bennett's report was accurate, but offers no evidence that rebuts Captain Pospisil's testimony that Bennett made the statements. (Plaintiff's Response ¶ 45.)*fn5

  In August 2000, Captain Pospisil spoke to Plaintiff about an incident in which he missed a flight for which he was scheduled. Plaintiff explained to Pospisil that he slept through his alarm. (Def.'s 56.1 ¶ 46.) In an affidavit, Plaintiff denies this conversation occurred, (Plaintiff's Response ¶ 46), but Defendant correctly notes that this denial must be disregarded as inconsistent with Plaintiff's deposition testimony that, although he was uncertain of the date, he did remember the conversation "happening sometime." Plaintiff asserts that other pilots have not been disciplined or counseled for missing flights; Defendant responds that Plaintiff also was not disciplined, and that Captain Pospisil is unaware of any other pilot who missed a flight because he slept through his alarm. (Pltf.'s 56.1(b)(3)(B) ¶ 118; Def.'s Response ¶ 118.)

  Another Chief Pilot, Captain Mark Allen, disciplined Plaintiff in November of that year concerning Plaintiff's failure promptly to contact Captain Allen regarding an aircraft maintenance issue. (Def.'s 56.1 ¶ 48.) Although Plaintiff denies any wrongdoing, he acknowledges that Captain Allen disciplined him, accused him of insubordination, and raised with Plaintiff the matter of his purported failure promptly to respond to Captain Pospisil's request for a meeting in April. (Plaintiff's Response ¶ 48.) He acknowledges, further, that Captain Allen issued a written disciplinary notice ...

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