United States District Court, N.D. Illinois
Wanda Raquel Santiago, Plaintiff, Pro se, Falls Church, VA.
For United Air Lines Inc, doing business as United Continental Holdings, Defendant: Tom A Jerman, LEAD ATTORNEY, PRO HAC VICE, Jones Day, Washington, DC; Aparna Bhagwan Joshi, Omelveny & Myers, LLP, Washington, DC; Elizabeth Bethea McRee, Jones Day, Chicago, IL.
Gary Feinerman, United States District Judge.
Memorandum Opinion and Order
Wanda Santiago, a retired flight attendant, brought this suit under the Railway Labor Act (" RLA" ), 45 U.S.C. § 151 et seq. , against United Air Lines, Inc., her former employer, and the Association of Flight Attendants-CWA (" AFA" ), the union that represents United flight attendants. Doc. 1. Santiago alleges that United violated the RLA by failing to submit to arbitration her grievance regarding recent changes to United's employee pass travel policy--changes that, Santiago asserts, violate the collective bargaining agreement between United and the AFA (" CBA" ) and benefit current employees at the expense of retirees. Id. at 11-13. Santiago asks the court to compel United to submit the dispute to arbitration before the United-AFA System Board of Adjustment (" System Board" ). Id. at 16; Doc. 147 at ¶ 4. Santiago's complaint also claimed that the AFA violated its duty of fair representation under the RLA by refusing to assist her in pursuing her grievance, but the court dismissed that claim, reasoning that the AFA owed her no duty of fair representation because she was no longer employed by United when she sought to pursue her grievance. 2012 WL 3583057 (N.D. Ill. Aug. 17, 2012).
United has moved for summary judgment. Doc. 128. Because none of United's proposed grounds for summary judgment is persuasive, the motion is denied. Moreover, although Santiago has not moved for summary judgment, the court gives United notice pursuant to Federal Rule of Civil Procedure 56(f) that the court is considering granting summary judgment in Santiago's favor and offers United an opportunity to respond.
The following states the facts as favorably to Santiago as the record and Local Rule 56.1 allow. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). Before proceeding, the court notes that several paragraphs of Santiago's Local Rule 56.1(b)(3)(B) response deny assertions made by the corresponding paragraphs of United's Local Rule 56.1(a)(3) statement but fail to support her denials with provide any citation to the record or other materials. Doc. 145 at ¶ ¶ 5, 8, 11-19, 28, 31, 33-34, 38, 42, 44, 51. This violates the requirement of Local Rule 56.1(b)(3)(B) that the non-movant provide " a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon. " N.D. Ill. L.R. 56.1(b)(3)(B) (emphasis added). Under Local Rule 56.1(b)(3), the above-referenced paragraphs of United's Local Rule 56.1(a)(3) statement are deemed admitted. See Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009); FTC v. Bay Area Bus. Council, Inc., 423 F.3d 627, 634 (7th Cir. 2005); Smith v. Lamz, 321 F.3d 680, 682-83 (7th Cir. 2003); Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 528 & n.4 (7th Cir. 2000); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994) (collecting cases).
Santiago worked for United as a flight attendant from 1977 through 2009. Doc. 147 at ¶ 1. (The court cites Doc. 147, which is United's " reply" to Santiago's Local Rule 56.1(b)(3)(B) response, not because the reply is authorized by the Local Rules, but because it conveniently sets forth in one place the assertions in United's Local Rule 56.1(a)(3) statement and Santiago's responses thereto.) The AFA is the certified representative under the RLA of United's flight attendants. Id. at ¶ 3. Pursuant to the RLA, the CBA establishes a grievance procedure that culminates in final and binding arbitration before the System Board. Id. at ¶ 45. Section 26 of the CBA provides that this grievance procedure is limited to " [a] group of Flight Attendants or a Flight Attendant who has a grievance concerning any action of the Company which affects her/him." Ibid. Section 2.N defines a " Flight Attendant" as an " employee whose duties consist of performing or assisting in the performance of all cabin safety related functions, all en route cabin service or ground cabin service to delayed or canceled passengers," while Section 2.J defines " Employee" as a " Flight Attendant ... who has completed training as prescribed by the Company ... and whose name appears on the Flight Attendant System Seniority List." Id. at ¶ 46. Retirees do not appear on the Seniority List. Id. at ¶ 47. At the time she filed this suit, Santiago was retired and no longer performing any services for United. Ibid. The CBA establishes the United Flight Attendant Retirement Board " for the purpose of hearing and determining all disputes between the Company and its Flight Attendant employees, retirees, and their beneficiaries," but the Retirement Board's jurisdiction is limited to disputes " which may arise under the terms of the Flight Attendant 401(k) Plan and similar programs and payments." Id. at ¶ 53. Santiago's dispute with United does not fall within the Retirement Board's jurisdiction. Id. at ¶ 54.
Like other airlines, United offers a " pass travel" program to its current and former employees and their eligible travel companions, which permits them to fly on United flights for free or reduced rates if open seats are available. Id. at ¶ 10. During Santiago's employment, United issued publications to current and former employees outlining the terms and conditions of the pass travel policy and expressly reserving the right to eliminate or modify the policy at any time. Id. at ¶ ¶ 11-16. United has modified the policy several times over the years. Id. at ¶ ¶ 17-22. When United made such changes, it issued individual letters, posted general notices, and sent email notifications to current and former employees, reminding them that the pass travel policy is subject to change. Id. at ¶ 23.
The CBA's Section 4.M addresses United's pass travel policy, and states:
It is agreed that the pass transportation regulations as established by Company policy, effective January 1, 1987, will apply to Flight Attendants and will not be substantially changed or discontinued during the term of this Agreement without first advising the Union the reason therefor and affording the Union an opportunity to confer with the Company.
Id. at ¶ 40. Section 4.M has remained in effect without material modification since 1974, three years before Santiago joined United. Ibid. Because it prefers to maintain a single pass travel policy for all employee groups, United has steadfastly refused to negotiate with the unions representing its employees over the substance of the policy, and instead simply provides notice of the proposed changes. Id. at ¶ 41.
Page 332 of the CBA is a one-page summary of procedures for retirees seeking to use the pass travel policy; the summary was attached to a letter of agreement executed in 1987 that changed the circumstances under which United flight attendants could retire. Id. at ¶ 42. In April 2004, the System Board determined that Page 332 does not restrict United's right to change unilaterally the pass travel policy. Ibid. The Board stated that the pass program privileges for retirees described on Page 332 were " subject to change in the context of Section 4.M, just as were the pass privileges afforded to active employees." Ibid.
After merging with Continental Airlines in 2010, id. at ¶ 2, United determined that it would again modify the pass travel policy so that current and former employees of both United and Continental would be covered by the same policy, id. at ¶ 24. At the time of the merger, the two airlines' pass travel programs differed in several respects, including the relative boarding priorities accorded to current employees versus retirees. Id. at ¶ 25. Under Continental's program, current employees boarded before retirees, while under United's program, retirees like Santiago who had worked for United for more than 25 years received higher priority than current employees or retirees with a shorter period of service. Id. at ¶ ¶ 26-27. After the merger, United decided that the best course would be to adopt elements of Continental's policy into a combined pass travel program for the entire company. Id. at ¶ 28. United announced the new program in March 2011, which was to take effect when the two airlines began operating together under the United name in March 2012. Id. at ¶ 29. Under the new program, every current employee and retiree is given eight one-way travel passes each year, which entitle them to free travel with the highest boarding priority level. Id. at ¶ 30. Passes received but not used in one year may be used in later years. Ibid. For flights taken beyond those eight flights per year, current employees have boarding priority over retirees. Id. at ¶ 31. " A substantial majority of United's flights are able to accommodate all space available travelers, in which case boarding [priority] does not affect the ability to travel on that particular flight." Id. at ¶ 32. The new program expands the number of flights and destinations available to employees and retirees using free passes. Id. at ¶ 33.
As required by Section 4.M of the CBA, a United official met with union representatives to review the new pass travel program prior to its implementation. Id. at ¶ 43. The AFA did not object to the new program or allege that it violated the CBA. Ibid. Santiago did object, first in a letter to United's managing director of labor relations, then in a second letter to an AFA officer, and finally by filing this lawsuit. Id. at ¶ ¶ 36-37.
Before reaching United's arguments for summary judgment, the court will address two preliminary matters. The first is United's failure to comply with Local Rule 56.2, which requires that " [a]ny party moving for summary judgment against a party proceeding pro se shall serve and file as a separate document, together with the papers in support of the motion, a 'Notice to Pro Se Litigant Opposing Motion for Summary Judgment' in the form indicated below." N.D. Ill. L.R. 56.2. The prescribed notice explains the nature of a summary judgment motion and tells the pro se litigant what she must do to prevent summary judgment. Santiago, who is pro se, recognized in her summary judgment response that United failed to provide her with the Local Rule 56.2 notice, and asked that United's motion be
denied as a result. Doc. 145 at 1. United's reply acknowledged that it had violated the rule, but argued that Santiago was not prejudiced, as her recognition of United's noncompliance necessarily means that she was aware of the rule and the contents of the notice. Doc. 146 at 3. United is right that Santiago was not prejudiced, and a movant's failure to give the Local Rule 56.2 notice is without legal significance " if no prejudice resulted." Kincaid v. Vail, 969 F.2d 594, 599 (7th Cir. 1992); see also Timms v. Frank, 953 F.2d 281, 286-87 (7th Cir. 1992) (" [I]n light of Timms's inability to show that the lack of notice prejudiced her, the district court's grant of summary judgment is affirmed." ). At any rate, Santiago could hardly be prejudiced by the court's decision on the present motion, which is to deny it in full.
The second preliminary matter is Santiago's motion to compel further discovery from United and her request under Federal Rule of Civil Procedure 56(d) (which she refers to under its former designation, Rule 56(f)) that the court defer ruling on the summary judgment motion until she can gather more facts to oppose the motion. Docs. 141, 143, 152. Rule 56(d) provides that a court may defer consideration of a summary judgment motion " [i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition." Fed.R.Civ.P. 56(d) (emphasis added). Santiago's filings describe a wide range of discovery that she claims United has wrongfully denied her, including the deposition of United CEO Jeff Smisek. Doc. 141 at 13. But she does not explain what facts " essential to justify [her] opposition" she thinks she might be able to extract from the allegedly withheld documents and depositions. Santiago's Rule 56(d) motion accordingly is denied. See Waterloo Furniture Components, Ltd. v. Haworth, Inc., 467 F.3d 641, 648 (7th Cir. 2006) (" Rule 56[d] requires a party to state the reasons why it cannot adequately respond to the summary judgment motion without further discovery" ); Chambers v. Am. Trans Air, Inc., 17 F.3d 998, 1002 (7th Cir. 1994) (" If a party cannot present 'facts essential to ...