Miller v. American Airlines, No. 07-1518 (7th Cir. May 5, 2008)

| May 4, 2008 | Daily Developments in EEO Law |


Here’s a case of Eisenhower-era flight engineers, made obsolete in the Reagan-era, defeated by Coolidge-era labor legislation.


In Miller v. American Airlines, No. 07-1518 (7th Cir. May 5, 2008) (attached), the plaintiffs challenged a collective bargaining agreement on ADEA grounds, both on its face and as applied.  Plaintiffs began in the 1950s as flight engineers when commercial flights still customarily used three-person flight crews. American, in 1964, collectively bargained an eventual end to the flight engineers (the “Tripartate Agreement”), and by 1983 the transition was in full swing. 

To take care of the retiring and increasingly obsolescent flight engineers, American and its pilot’s union added Supplement U to the contract:

“In the event a surplus of flight engineers exists, each flight engineer so affected, who is qualified or trainable, will be guaranteed placement within the Company[American Airlines] . . . . At the time of his placement, the employee’s monthly salary will be fixed based on the average of his earnings for the previous twelve (12) months as a flight engineer. If the employee’s average monthly earnings as a flight engineer exceed the total monthly compensation actually earned in his new job, the employee will be paid such flight engineer’s guaranteed monthly earnings. Such guarantee will be in effect until his normal flight engineer retirement date, and thereafter, his salary will be governed by the compensation plan applicable to the new position.

The “normal flight engineer retirement date” was defined elsewhere as age sixty-five.

In 2002, American grounded the last of the three crew planes, by which time only three flight engineers remained (including the two plaintiffs here).  American offered them only “staff assistant positions in its publications department, positions which paid $100,000 less than their salaries as flight engineers. At that time of this offer, plaintiff Royals was seventy years old and plaintiff Miller was seventy-five years old.”

The plaintiffs sued, but got sidetracked when the district court judge ordered them to arbitrate their claims under the 1926 Railway Labor Act, which in turn went against them (the arbitrator found that Supplement U only continued for employees until age 65).  On return to the district court, the judge granted summary judgment based on the arbitrator’s decision and — on a separate count — held that the employes waived their facial challenge to the CBA by failing to put it in the EEOC charge.

The Seventh Circuit affirmed.  As to the arbitration ruling, the panel held that “the plaintiffs’ claim was dependent upon the phrase ‘normal flight engineer retirement date’ in Supplement U. The arbitrator’s interpretation of this phrase in the collective bargaining agreement to mean that the plaintiffs were entitled to flight engineer pay only until the normal flight engineer retirement date and his subsequent conclusion that such pay was not required to continue following this date eviscerated the plaintiffs’ ADEA claims.” 

On the facial challenge, meanwhile, the Seventh Circuit affirmed that the claim itself did not appear in the plaintiffs’ charge: “To now challenge Supplement U as facially discriminatory, which is a much broader claim than that alleged in the EEOC charge, is also inconsistent with the plaintiffs’ allegations that American Airlines failed to do something that Supplement U required.”


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