United States District Court, N.D. Illinois, Eastern Division
Michael Drain, Attorney at Law, Chagrin Falls, OH, Lonny Ben Ogus, Attorney at Law, Chicago, IL, for Plaintiff.
Robert A. Seltzer, Andrew Bernard Epstein, Cornfield and Feldman, Chicago, IL, Deirdre E. Hamilton, Association of Flight Attendants-CWA, AFL-CIO, Washington, DC, Eben O. McNair, IV, Timothy J. Gallagher, Schwarzwald & McNair, Cleveland, OH, for Defendants.
MEMORANDUM OPINION AND ORDER
JEFFREY COLE, United States Magistrate Judge.
Slimmarie Perrywatson was a flight attendant with United Airlines from 1978 until she was fired on May 18, 2007 for her conduct towards passengers on a United flight on which she was working. She appealed her termination, along with earlier disciplinary actions, through her union— the Association of Flight Attendants (" AFA" )— before an arbitration panel. The hearing process concluded on August 6, 2008, and the panel upheld the termination and disciplinary charges on December 26, 2008. She filed discrimination charges with the Equal Employment Opportunity Commission on May 7, 2009. About two weeks later, her charges were dismissed as untimely and she received a right-to-sue-letter. Ms. Perrywatson then filed suit in the Northern District of Ohio on August 19, 2009, charging United Airlines with discrimination under Title VII (a claim she later dropped), age discrimination under the Age Discrimination in Employment Act (" ADEA" ), disability discrimination under the Americans With Disabilities Act (" ADA" ), wrongful discharge, and retaliation. She also charged the AFA with having denied her fair representation, with withholding evidence to support her grievance of United's firing, and with refusing to call witnesses on her behalf and engaging in excessive delays. ( Complaint, ¶¶ 7-8)(Dkt. # 1). Count IV of the Complaint charged the AFA with age and disability discrimination as a consequence of its alleged failure to have fairly represented the plaintiff. (¶¶ 19-22). Her case was transferred to this court, and the parties consented to jurisdiction before a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(C).
Following the dismissal of the Complaint, Perrywatson v. United Airlines, 2010 WL 2169489 (N.D.Ill.2010), the Complaint went though three more iterations. ( See Dkt. 62, 86, 91 and 99)  The
AFA's Motions to Dismiss were also granted. See Perrywatson v. United Airlines, 2010 WL 5256374 (N.D.Ill.2010); Perrywatson v. United Airlines, Inc., 2011 WL 2470103, *1 (N.D.Ill.2011)(" The plaintiff's pleading continues to be a model of uncertainty and unfocused allegations. It is her contention that in addition to a lack of ‘ fair representation,’ there was ‘ active discrimination committed by the union....’ ( Reply at 7). It was as a consequence of these misdeeds, says the plaintiff, that she lost her job, apparently by not prevailing at the arbitration as she ought to have." ). Thereafter, United filed a largely successful motion for summary judgment. See Perrywatson v. United Airlines, 762 F.Supp.2d 1107 (N.D.Ill.2011). With most of her case against United gutted, Ms. Perrywatson dismissed the airline as a defendant on 2/11/11. (Dkt. # 93). Accordingly, with the approval of the plaintiff, whatever claims were left following the grant of partial summary judgment were dismissed and judgment was entered in favor of United dismissing the case with prejudice. (Dkt. # 94).
The AFA has now moved for summary judgment on the Third Amended Complaint.
The Third Amended Complaint
The one-count Third Amended Complaint purports to charge the AFA with " disability and age discrimination." (Dkt. # 99, ¶¶ 22-28). It alleges that at least since 2000, Plaintiff has " suffered from a disability, specifically affecting her ability to work, and consisting of torn lateral meniscus of her right and left knees and chondromalcia [ sic ] patellae of both knees." It is alleged that this disability continued until she was fired by United Airlines on May 18, 2007 for misconduct directed against passengers on a United flight. The complaint does not give her age.
The Third Amended Complaint alleges that the AFA representative at the union-sponsored mediation following plaintiff's firing " refused to introduce these issues at her arbitration." (¶ 14). Ms. Perrywatson alleges that during the arbitration process, the AFA allowed all grievances to go forward even though the 2004 and 2005 disciplinary matters against the plaintiff had violated United's progressive discipline rules, as well as the collective bargaining agreement between it and United. Ms. Perrywatson also alleges that the AFA mishandled her case, violated its contract with her, withheld dated and documented evidence to support her grievances, refused to call witnesses, and engaged in excessive delays. (¶ 23). It is further alleged that the AFA, despite knowledge that plaintiff experienced and suffered from medical issues that limited her job performance and may have been the cause of her termination by United, failed to advance any such arguments in her behalf " in reckless disregard of the truth of such matters." (¶ 24).
It is further alleged that the AFA's acts and/or omissions constituted acts of age and disability discrimination against plaintiff and that although the AFA knew that the charges against her by United " were
mere pretexts to terminate her on account of her age and disability" (¶ 25), the AFA nonetheless failed to have argued at the arbitration that the real reason for plaintiff's termination was discrimination on account of age and disability. (¶ 27). There is no specific allegation in the Third Amended Complaint or any of its predecessors that the AFA's conduct was prompted by plaintiff's age or purported disability or that the outcome of the arbitration would probably have been different had Ms. Perrywatson's strategy been followed.
The closest the Third Amended Complaint comes to such an explicit charge is the allegation that the AFA committed additional acts of age and disability discrimination at the arbitration process " by not treating her as others similarly situated, that is, others of her age and disability." (¶ 26). But that is an odd and potentially self-defeating contention, since an inference of age or disability discrimination would only arise if the AFA had treated Ms. Perrywatson differently than younger employees and those without a disability. Treating her differently (i.e. less fairly or favorably) than others of her age and/or with a disability would preclude the inference sought to be drawn from the disparate treatment and would warrant the inference that she was fired for reasons unrelated to age or disability.
In any event, " unfortunately for [Ms. Perrywatson], saying so doesn't make it so; summary judgment may only be defeated by pointing to admissible evidence in the summary judgment record that creates a genuine issue of material fact, and it [is] not the district court's job to sift through the record and make [plaintiff's] case for h[er]." United States v. 5443 Suffield Terrace, Skokie, Ill., 607 F.3d 504, 510 (7th Cir.2010). Ms. Perrywatson's submission does not begin to raise a genuine issue of material fact, and the AFA's Motion for Summary Judgment must be granted.
Summary Judgment Under Rule 56
Summary judgment is appropriate where " the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is material if it is critical to the determination of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Spivey v. Adaptive Marketing LLC, 622 F.3d 816, 822 (7th Cir.2010). A genuine issue of material fact exists, precluding summary judgment, if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
Once a properly supported motion for summary judgment is made, the opposing party must respond by setting forth specific facts showing that there is a genuine factual issue for trial. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. In considering a motion for summary judgment, the nonmoving party's evidence " is to be believed, and all justifiable inferences are to be
drawn in [that party's] favor." Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). But the nonmoving party " must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘ genuine issue’ for trial." Matsushita ...