Green v. American Airlines, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL ACTION NO. 3:20-CV-505-DCK

ARNOLD B. GREEN, )

)

Plaintiff, )

)

v. ) ORDER

)

AMERICAN AIRLINES, INC., )

)

Defendant. )

)

THIS MATTER IS BEFORE THE COURT on “Defendant’s Motion For Summary

Judgment” (Document No. 26). The parties have consented to Magistrate Judge jurisdiction

pursuant to 28 U.S.C. § 636(c), and this motion is now ripe for disposition. Having carefully

considered the motion, the record, and applicable authority, the undersigned will grant the motion.

I. BACKGROUND

Arnold B. Green (“Plaintiff” or “Green”) initiated this action with the filing of a

“Complaint…” (Document No. 1) on September 11, 2020. The Complaint alleges violations of

the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. against American

Airlines, Inc. (“Defendant” or “AA”) for allegedly interfering with “Green’s rights under the

FMLA” and for retaliating against him by changing his employment status to result in the loss of

pay and benefits. (Document No. 1, pp. 7-8).

According to the Complaint, Plaintiff Green was originally hired by US Airways as a pilot

on December 7, 1998. (Document No. 1, p. 1). After US Airways merged with Defendant AA,

Plaintiff continued his employment as a pilot with AA. Id. During the course of Plaintiff’s

employment with AA, Defendant knew that Plaintiff’s mother suffered from a serious health

condition that required Plaintiff to care for her. (Document No. 1, p. 3). “Defendant has certified

and approved Green’s intermittent FMLA leave to care for his mother since 2011.” Id. (emphasis

added).

The Complaint also explains that Defendant AA’s “pilots are required to participate in

recurrent training that consists of classroom and flight simulator training.” Id. After Plaintiff

participated in training from January 30 to February 1, 2020, Defendant determined that he needed

“additional remedial training.” Id. Defendant then classified Plaintiff’s status as “AQ” or “Paid

Awaiting Qualification,” a status that allowed Plaintiff to continue to receive pay and benefits. Id.

Between February and May 2020, Defendant scheduled Plaintiff for remedial training six

(6) times, but Plaintiff was unable to complete the training due to illness or taking FMLA leave to

care for his mother. (Document No. 1, pp. 4-5). On June 4, 2020, Defendant’s Chief Pilot Jeffrey

Moore (“Moore”) telephoned Plaintiff and informed him that he would be placed on “unpaid or

“QE” status if he utilized FMLA leave again when scheduled for recurrent training.” (Document

No. 1, p. 5). The Complaint then describes the following interaction between Plaintiff and Captain

Moore:

33. Immediately following this phone call, Green sent Moore

a text stating: “Hi Jeff. I received your call a couple of minutes ago.

To verify what you said, did you just tell me that the Company

lawyers had [sic] instructed you to inform me that if I use FMLA to

take care of my mother, when I’m scheduled for simulator training

next week, the Company will unilaterally change my pay status from

‘paid to unpaid status’? Please acknowledge by return text that this

is what you said?”

34. Moore responded via text: “No Arnie. That is not what I

am saying at all. We will continue to approve your requested FMLA

and grant you the time off you need to care for your mother. What

I have said is that you are required to remain qualified. I am happy

to work with you to find time to schedule your training around your

needed FMLA but what you have told me is that you are not willing

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to do so. If you are not willing to stay qualified, then you are not

eligible for pay. If I am mistaken or have misunderstood, please

respond via text with dates you can commit to for training in the near

future. Jeff.”

35. Green responded via text: “Good Evening Jeff. There

seems to be a misunderstanding on the Company’s perception

regarding my willingness to be qualified. I don't have any record or

recollection of me ever stating to anyone, that ‘I did not want to stay

and/or be fully qualified’. To be perfectly clear, so that there is no

misunderstanding, I want to stay and be fully qualified. The

Company can schedule me for training whenever they want, as

they have always done in the past. Respectively, Arnie.”

(Document No. 1, pp. 5-6) (emphasis added).

“Defendant rescheduled Green for the additional remedial training from June 8, 2020 to

June 9, 2020,” and Plaintiff was again unable to attend due to his mother’s serious health condition.

(Document No. 1, p. 6). On June 9, 2020, Defendant changed Plaintiff’s “status from “AT” to

“QE” status . . . [and] ceased paying Green his hourly rate.” Id.

The crux of Plaintiff’s Complaint is that Defendant placed him on “QE” status in retaliation

for utilizing protected FMLA leave, which resulted in ceasing “compensation and benefits that he

would otherwise be entitled to during recurrent training status.” (Document No. 1, p. 7).

“Defendant’s Answer And Defenses To Plaintiff’s Complaint” (Document No. 3) were

filed on October 19, 2020. On November 9, 2020, the parties filed a “Certification And Report Of

F.R.C.P. 26(f) Conference…” (Document No. 7) and a “Joint Stipulation of Consent to Exercise

Jurisdiction by a United States Magistrate Judge” (Document No. 8). The undersigned issued a

“Pretrial Order And Case Management Plan” (Document No. 12) that included the following

deadlines: discovery completion – June 1, 2021; mediation report – June 16, 2021; and

dispositive motions – July 1, 2021. Those deadlines were later extended. See (Document Nos.

17, 18, 20, 22, 24, and 25).

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Following a mediation attempt that resulted in an impasse, “Defendant’s Motion For

Summary Judgment” (Document No. 26) was timely filed on November 12, 2021. The motion

for summary judgment has now been fully briefed and is ripe for review and disposition. See

(Document Nos. 27, 30, 31, and 32).

II. STANDARDS OF REVIEW

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.

56(a). The movant has the “initial responsibility of informing the district court of the basis for its

motion, and identifying those portions of the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal citations omitted). Only disputes between the parties over material facts (determined by

reference to the substantive law) that might affect the outcome of the case properly preclude the

entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute about a material fact is “genuine” only if the evidence is such that “a reasonable jury could

return a verdict for the nonmoving party.” Id.

Once the movant’s initial burden is met, the burden shifts to the nonmoving party. Webb

v. K.R. Drenth Trucking, Inc., 780 F.Supp.2d 409 (W.D.N.C. 2011). The nonmoving party

opposing summary judgment “may not rest upon the mere allegations or denials of his pleading,

but ... must set forth specific facts showing there is a genuine issue for trial.” Anderson, 477 U.S.

at 248. In deciding a motion for summary judgment, a court views the evidence in the light most

favorable to the non-moving party, that is, “[t]he evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.

4

A motion to dismiss under Rule 12(b)(1) seeks to dismiss a complaint for lack of subject

matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The plaintiff has the burden of proving that subject

matter jurisdiction exists. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States,

945 F.2d 765, 768 (4th Cir. 1991). The existence of subject matter jurisdiction is a threshold issue

the court must address before considering the merits of the case. Jones v. Am. Postal Workers

Union, 192 F.3d 417, 422 (4th Cir. 1999). “The subject matter jurisdiction of federal courts is

limited and the federal courts may exercise only that jurisdiction which Congress has prescribed.”

Chris v. Tenet, 221 F.3d 648, 655 (4th Cir. 2000) (citing Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994)).

III. DISCUSSION

Defendant AA asserts two alternate grounds for the termination of this lawsuit. (Document

No. 26).

First, Defendant contends that this action should be dismissed pursuant to Fed.R.Civ.P.

12(b)(1) for lack of subject matter jurisdiction. Defendant argues that pursuant to the Railway

Labor Act (“RLA”), 45 U.S.C. §§ 151 et seq., the question of whether or not Defendant improperly

moved Plaintiff from paid to unpaid status requires interpretation of the collective bargaining

agreement (“CBA”) between Defendant AA and the Allied Pilots Association (“APA”).

(Document No. 26, p. 1; Document No. 27, pp. 1-2). According to Defendant, “the CBA provides

that only the System Board of Adjustment (“SBA”) has jurisdiction to resolve Green’s grievance.”

(Document No. 27, p. 2). Defendant notes that “[a] court must dismiss an action if it determines

at any time that it lacks subject matter jurisdiction.” (Document No. 27, p. 10) (citations omitted).

Defendant also notes that Plaintiff demonstrated his awareness “that his pay claims are

governed exclusively by the dispute resolution process set forth in the CBA” by filing a “virtually-

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identical grievance” alleging violation of Sections 6.B.6 and 6.B.9 of the CBA (or JCBA) based

on the change of his pay status. (Document No. 27, p. 2); see also (Document Nos. 27-2 and 27-

4).1

“Second, and alternatively,” Defendant contends that summary judgment is appropriate

pursuant to Fed.R.Civ.P. 56 because Plaintiff “has no evidence to support his claims that American

interfered with his FMLA rights or retaliated against him for his use of FMLA leave.” (Document

No. 26, p. 1); see also (Document No. 27, p. 1).

A. Jurisdiction

Defendant AA first argues that Plaintiff’s “entire lawsuit rests on the notion that American

[Airlines] did not follow the CBA [therefore], Green’s claim is a classic ‘minor dispute’ under the

RLA.” (Document No. 27, p. 10). “Minor disputes can be adjudicated only under the RLA,” and

accordingly “must be submitted to compulsory arbitration by an adjustment board, which has

exclusive jurisdiction to decide minor disputes.” (Document No. 27, p. 11) (quoting Empresa

Ecuatoriana De Aviacion, S.A., v. Dist. Lodge No. 100, 690 F.2d 838, 844 (11th Cir. 1982)).

Defendant notes that minor dispute preemption is broader than routine CBA-based disputes

between labor and airline management because it “also encompasses claims brought by individual

employees against their air carrier employers that arise from or just require interpretation of a

CBA.” Id. (citing Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 (1994); Lee v. Norfolk S. Ry.

Co., 1:11-CV-245-MR, 912 F.Supp.2d 375, 380 (W.D.N.C. 2012); Davis v. American Airlines,

1 According to “Defendant’s Memorandum…” American Airlines denied Plaintiff’s grievance and it is

“awaiting arbitration before the SBA.” (Document No. 27, p. 9) (citing Document No. 27-1, p. 3 and

Document No. 27-3, pp. 61-62).

6

No. 3:19-CV-044-MOC-DSC, 2019 WL 2719909, at *3-5 (W.D.N.C. June 28, 2019); Caldwell

v. Norfolk S. Corp., No. 96-CV-443-P, 1998 WL 1978291, at *3 (W.D.N.C. Mar. 3, 1998)).

Defendant asserts that for this Court to find an alleged FMLA violation, it must accept that

Plaintiff Green is contractually entitled to the pay and benefits he was denied by Defendant when

he was not qualified to fly. (Document No. 27, p. 12). However, Defendant argues that it is “solely

the CBA that governs Green’s entitlement to pay” and that employers are not required to pay

employees for FMLA leave. Id. Moreover, any decision by this Court on Plaintiff’s alleged

damages “would effectively be ruling on Green’s grievance currently pending before the SBA.”

(Document No. 27, p. 12); see also (Document No. 27-4).

Defendant concludes that Plaintiff’s claims “cannot be resolved without interpreting the

parties’ CBA,” and therefore, “this Court must relinquish jurisdiction.” (Document No. 27 p. 14).

In response, Plaintiff acknowledges that a “court lacks subject matter jurisdiction over

minor disputes because they are subject to mandatory arbitration under the RLA” and that “[m]inor

disputes are those ‘growing out of grievances or out of interpretation of agreements concerning

rates of pay, rules, or working conditions.’” (Document No. 30, p. 8) (citing Hawaiian Airlines,

Inc., 512 U.S. at 252; and quoting 45 U.S.C. §153). Nevertheless, Plaintiff argues that his claim

here is not precluded because it is “independent of” the CBA. Id.2 Plaintiff contends that whether

Defendant “violated the FMLA depends on a simple factual inquiry into Moore’s motives for

threatening Green and then placing Green on QE or unpaid status” – “whether Moore’s motivation

was retaliatory cannot be resolved by interpreting the CBA.” Id.

2 Plaintiff’s response notes that he “elects to proceed only with Count II of his Complaint, which alleges

retaliation under the FMLA,” and “abandons Count I of his Complaint, which alleges interference under

the FMLA.” (Document No. 30, p. 2, n. 1).

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Plaintiff does not dispute that FMLA leave is unpaid or that Chief Pilot Moore had the

discretion to change Plaintiff’s pay status. See (Document No. 30, pp. 2, 9). Rather, “Green’s

FMLA retaliation claim turns solely on Moore’s motivation and conduct.” Id. In fact, Plaintiff

states that “[f]or purposes of the lawsuit, Green does not allege that American violated the

collective bargaining agreement (“CBA”) or that any provisions of the CBA infringes on his rights

under the FMLA.”3 (Document No. 30, p. 2).

Plaintiff notes that Defendant has failed to cite any “cases in which a court has held that

the RLA preempts an FMLA claim arising from an employer’s alleged retaliatory motive or

conduct.” (Document No. 30, p. 9). To his credit, Plaintiff identifies cases coming out on both

sides of the preemption question, though he contends an overwhelming number hold that the RLA

does not preclude an FMLA claim alleging retaliatory motive or conduct. (Document No. 30, pp.

9-10) (citations omitted).

Plaintiff contends that his FMLA retaliation claim is separate and distinct from the CBA,

and that his claim(s) before this Court does not preclude seeking a potential CBA-based remedy.

(Document No. 30, p. 11). Therefore, “this Court has subject matter jurisdiction to hear Green’s

FMLA claims.” (Document No. 30, p. 12).

“Defendant’s Reply…” asserts that Plaintiff’s claim “is inextricably intertwined with rights

that exist under his CBA, namely his entitlement to pay while awaiting training,” which “is

governed exclusively by his CBA.” (Document No. 32, p. 1). Defendant argues that “[P]laintiff

cannot avoid RLA preemption by careful pleading . . . if resolving any aspect of the claim requires

3 Plaintiff’s “Grievance No. 20-093…,” submitted to Captain Jeff Moore the same day the Complaint was

filed, alleges that “[t]his change in my status is a violation of Section 6.B.6 and 6.B.9. of the JCBA.”

(Document No. 27-4, p. 2).

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the Court to interpret a provision of a CBA, then it is preempted.” (Document No. 32, p. 3) (citing

Brown v. Ill. Cent. R.R., 254 F.3d 654, 668 (7th Cir. 2001) (explaining that if a federal claim

depends on the interpretation of a CBA for its resolution, then the claim is not independent of the

CBA, regardless of its source, and is precluded by the RLA)). Defendant notes that it has cited

several decisions, “including three (3) from this Court, in which resolution of federal statutory

claims required interpretation of a CBA, and thus, were preempted under the RLA.” Id. (citing

Document No. 27, pp. 11-12).

Defendant insists that the issue in this case, “which is governed exclusively by the CBA,”

“is whether Green is entitled to pay for time spent at home, on FMLA leave, while awaiting

training and not qualified to fly.” (Document No. 32, p. 3). Defendant further notes that Plaintiff

acknowledges that “courts have held an FMLA claim requiring interpretation of CBA provisions

is preempted under the RLA and subject to mandatory arbitration.” (Document No. 32, pp. 3-4)

(citations omitted).

In conclusion, Defendant argues that “in order to reach the question of FMLA retaliation,

this Court must first rule upon the threshold issue of whether the underlying conduct was an

adverse employment action or a contractually permitted required/permitted action.” (Document

No. 32, p. 6). “To rule on Green’s FMLA claim is to impermissibly deprive the SBA of its

jurisdiction to rule on Green’s grievance.” Id.

The undersigned finds the Honorable Max O. Cogburn, Jr.’s discussion of RLA preemption

in Davis v. American Airlines to be instructive here.

Because American Airlines is a passenger air carrier, the RLA

governs its labor practices. See 45 U.S.C. § 181. Congress passed

the RLA to promote stability in the transportation industry by

providing a comprehensive and exclusive framework for resolving

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labor disputes. See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246,

252 (1994).

. . .

Courts addressing issues of RLA preclusion divide labor disputes

into two categories: “major disputes” and “minor disputes.” See

Hawaiian Airlines, 512 U.S. at 252. The terms “major” and “minor”

have nothing to do with the importance of the issue to the disputants.

“Major disputes” involve the formation of collective bargaining

agreements. Id. “Minor disputes” are disputes arising from the

interpretation or application of a collective bargaining agreement.

Id. at 252-53. In other words, “major disputes seek to create

contractual rights, minor disputes to enforce them.” Id. at 253.

Minor disputes “must be resolved only through the RLA

mechanisms, including the internal dispute-resolution processes and

an adjustment board established by the employer and the union[ ].”

Hawaiian Airlines, 512 U.S. at 253 (citing 45 U.S.C. § 184); see

also Williams v. Air Wisconsin, Inc., 874 F.Supp. 710, 715 (E.D.

Va. 1995) (“The RLA vests in the System Board of Adjustment

exclusive jurisdiction over ‘minor’ disputes such as breach of

collective bargaining agreements.”), aff'd, 74 F.3d 1235 (4th Cir.

1996). Thus, the adjustment boards mandated by the RLA have

mandatory, exclusive, and comprehensive jurisdiction over disputes

arising from the interpretation or application of collective

bargaining agreements in the airline industry. See Hawaiian

Airlines, 512 U.S. at 252-53.

If a plaintiff’s claims require the interpretation or application of a

collective bargaining agreement, the claims are preempted by the

RLA regardless of whether the legal basis for the claims arise from

a source other than the collective bargaining agreement.

Davis v. Am. Airlines, No. 3:19-CV-044-MOC-DSC, 2019 WL 2719909, at *4 (W.D.N.C. June

28, 2019), aff’d Davis v. Am. Airlines, Inc., 792 Fed. Appx. 265 (4th Cir. 2020).

The issue of preemption presents an interesting and close call. However, the undersigned

finds Defendant’s position in favor of preemption to be more persuasive. In short, review of

Plaintiff Green’s Complaint shows that the Court cannot award the relief he seeks – “employment

status with the same seniority, benefits and wages Green was entitled to prior to Defendant’s

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unlawful conduct” – without a finding that he was entitled to pay and benefits even when he was

not qualified to fly. See (Document No. 1, pp. 7-8). That determination, as discussed above, rests

exclusively with the SBA. See Davis, 2019 WL 2719909, at *4.

Importantly, even if preemption should not be applied here, the undersigned finds that

Plaintiff’s claim still fails and that the Court must enter judgment in favor of Defendant.

B. Retaliation

Assuming jurisdiction is appropriate before this Court, Defendant presents a compelling

argument that Plaintiff’s claim for retaliation fails.

To succeed on a claim of retaliation, a plaintiff must show “that he engaged in protected

activity, that the employer took adverse action against him, and that the adverse action was causally

connected to the plaintiff’s protected activity.” Sharif v. United Airlines, Inc., 841 F.3d 199, 203

(4th Cir. 2016) (citing Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir.

2006) (quoting Cline v. Wal–Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998)).

Intent can be established either by direct evidence of retaliation or

through the familiar burden shifting framework articulated in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–06, 93 S.Ct.

1817, 36 L.Ed.2d 668 (1973). Laing v. Fed. Exp. Corp., 703 F.3d

713, 717 (4th Cir. 2013); Yashenko, 446 F.3d at 551. Under the

latter framework, a plaintiff must first produce sufficient evidence

to establish a prima facie case that the elements of retaliation are

satisfied. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The

burden of production then shifts to the employer to rebut the prima

facie presumption of retaliation and provide “some legitimate,

nondiscriminatory reason” for the adverse employment action. Id.;

see Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253–55,

101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer meets this

burden, the presumption of retaliation is dissolved and the plaintiff

resumes the burden of persuading the factfinder that the employer’s

proffered explanation is merely a pretext for discrimination. St.

Mar’s Honor Ctr. v. Hicks, 509 U.S. 502, 510–11, 113 S.Ct. 2742,

125 L.Ed.2d 407 (1993); Burdine, 450 U.S. at 256, 101 S.Ct. 1089;

McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. A plaintiff

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may satisfy this burden by showing either that the employer's

explanation is not credible, or that the employer’s decision was more

likely the result of retaliation. Reeves, 530 U.S. at 143, 120 S.Ct.

2097; Burdine, 450 U.S. at 256, 101 S.Ct. 1089. In any event, the

plaintiff must produce sufficient evidence to create a genuine

dispute of material fact such that a reasonable factfinder could

conclude the adverse employment action was taken for an

impermissible reason, i.e., retaliation. Reeves, 530 U.S. at 143,

148–49, 120 S.Ct. 2097; Hicks, 509 U.S. at 510–11, 113 S.Ct. 2742;

Burdine, 450 U.S. at 253, 101 S.Ct. 1089.

Sharif v. United Airlines, Inc., 841 F.3d at 203.

In support of summary judgment, Defendant AA contends that Plaintiff Green cannot

establish a prima facie claim for FMLA retaliation because there is no causal relationship between

his FMLA leave and the change to unpaid status. (Document No. 27, pp. 18-19). Defendant notes

that “Green must proffer evidence that he was placed in an unpaid status ‘because [he] engaged in

protected activity.’” (Document No. 27, p. 19) (quoting Dowe v. Total Action Against Poverty in

Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)).

Defendant first argues that the timing of the underlying events here make any causal

connection highly unlikely. Id. Defendant notes that Plaintiff Green had been using intermittent

FMLA leave for nine years at the time he was placed in an unpaid status; and in 2020, he had

repeatedly used FMLA for three months before his status was changed to unpaid. Id. (emphasis

added) (citations omitted). Following that historical context, Defendant suggests that Plaintiff’s

claim of retaliation is based solely on speculation. (Document No. 27, p. 20). Without more, such

speculation is insufficient to avoid summary judgment. Id. (citing Felty v. Graves-Humphreys

Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (“Unsupported speculation is not sufficient to defeat a

summary judgment motion”).

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Next, Defendant argues that even if Plaintiff Green was able to establish a prima facie case

of retaliation, he cannot show that Defendant AA’s “legitimate, non-discriminatory reason for

placing him in an unpaid status was pretextual and unworthy of belief.” (Document No. 27, p.

20). Defendant asserts that “Green was placed on unpaid status because he repeatedly called off

scheduled training and remained in an unqualified-to-fly status for an extended period of time.”

Id. (citing Document No. 27-1,p. 3).

According to Defendant, it requires all pilots to complete training to remain qualified to fly

in accordance with the CBA, and if they are unable to fly because they are not qualified, they are

placed “in a paid Awaiting Training (“AT”) or Awaiting Qualification (“AQ”) status until they are

able to attend scheduled training.” (Document No. 27, p. 20) (citing Document No. 27-1, pp. 2-3;

Document No. 27-2, p. 7; Document No. 27-12, p. 2). “If, for whatever reason, the pilot is unable

or unwilling to attend the scheduled training in order to get qualified[,] through no fault of

American, the pilot is placed in an unpaid (“QE”) status.” Id. (citing Document No. 27-12, pp. 2-

3). Defendant avers that it only moved Plaintiff to unpaid status after he repeatedly failed to attend

scheduled training events and advised AA that he could not commit to any training dates.

(Document No. 27, p. 21) (citations omitted). Defendant states this action was finally taken to

ensure compliance with the CBA requirement that Plaintiff Green remain qualified to fly – and is

a legitimate, non-discriminatory reason to move him to unpaid status. Id.

Defendant also argues that Plaintiff has failed to proffer any evidence that its reason for

placing him on unpaid status was pretextual or otherwise unworthy of belief. (Document No. 27,

p. 22). Defendant notes that Plaintiff has the burden to “present evidence ‘both that the employer’s

reason was false and that retaliation was the real reason for the challenged conduct.’” Id. (quoting

Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015)). Moreover, Plaintiff has not

13

identified any evidence that Defendant treated similarly-situated pilots better than Green.

(Document No. 27, p. 23). “In contrast, Defendant has identified seven (7) other pilots who were

placed in unpaid (“QE”) status under the same facially-neutral practice – removed from paid status

after calling off scheduled training, through no fault of American, and remaining unqualified.” Id.

(citing Document No. 27-12, pp. 3-4).

In response, Plaintiff first asserts that Captain Jeffrey Moore’s “statements and conduct are

direct evidence of retaliatory conduct.” (Document No. 30, p. 13). The “statement” Plaintiff most

heavily relies on – quoting it in the Complaint and repeatedly in his “…Memorandum In

Opposition… – is actually not even a statement by Moore, but a text sent by Plaintiff to Moore.

See (Document No. 1, p. 5; Document No. 30, pp. 3, 9, 15, 19); see also (Document No. 30-3).

The quote mistakenly attributed to Moore is the following:

“if [you] use FMLA to take care of [your] mother, when [you

are] scheduled for simulator training next week, the company

will unilaterally change [your] pay status from ‘paid to unpaid

status,’”

(Document No. 30, p. 3, 9, 15, 19) (emphasis in original).

Remarkably, Plaintiff describes the foregoing as “a textbook example of direct evidence of

FMLA retaliation,” a threat by Moore, and “the proverbial ‘posterchild’ for direct evidence.”

(Document No. 3, p. 21) (Compare Document No 1, pp. 5-6; Document No. 30-3). Not only did

Moore not draft the foregoing statement or send it to Plaintiff, as the Complaint shows, Moore

responded by stating: “No, Arnie. That is not what I’m saying at all.” (Document No. 1, p. 6).

Plaintiff further argues in his opposition brief that he can establish a retaliation claim under

the McDonnell Douglas burden-shifting framework – although he contends that because he has

presented “direct evidence of FMLA retaliation,” he does not have to proceed under McDonnell

14

Douglas. (Document No. 30, pp. 16). Plaintiff argues that a causal connection is easily established

through temporal proximity. (Document No. 30, p. 17). Plaintiff seems to state that within one

day of his protected activity (notice of FMLA leave) he was threatened by Moore and/or put on

unpaid status. Id.

Plaintiff goes on to assert that Defendant cannot prove a non-discriminatory explanation

for its adverse action. (Document No. 30, p. 18). Plaintiff suggests that Defendant’s policy was

not consistent or uniformly applied because it allowed him to stay on paid status after at least five

failures to complete training, and that the seven comparators identified by Defendant were all

placed on unpaid status for reasons other than FMLA leave. (Document No. 30, p. 19) (citing

Document No. 27-12, pp. 3-4).

In reply, Defendant argues that Plaintiff has produced no true direct evidence of retaliation

and that “his hallmark piece of ‘evidence’ is a gross misrepresentation of the record and not at all

what he suggests.” (Document No. 32, p. 6). As noted above, Defendant observes that Plaintiff’s

“evidence” was written by Green, not Captain Moore, and is not an accurate memorialization of

the parties’ conversation. (Document No. 32, p. 7). Defendant also contends that Plaintiff’s other

pieces of evidence are taken out of context. (Document No. 32, p. 8).

Contrary to Plaintiff’s allegations, Defendant asserts that Captain Moore’s testimony

shows that Plaintiff was moved to unpaid status for not fulfilling his obligation under the CBA to

remain current and qualified, and because Plaintiff was clear that he was not going to be available

to attend training to get qualified. (Document No. 32, p. 10) (citations omitted).

Defendant further asserts that it is undisputed that Plaintiff was treated better than all the

seven (7) comparator pilots, and that Plaintiff “has not identified a single pilot who was unqualified

15

and repeatedly called off training yet was maintained in paid status longer than he was.”

(Document No. 32, pp. 13, 15).

In conclusion, Defendant argues that the “record evidence demonstrates American applied

to Green its facially-neutral and uniformly-applied practice of moving pilots to an unpaid status

when they are unavailable for training, through no fault of American, and remain unqualified” to

fly. (Document No. 32, p. 17). Defendant notes that “Green has failed to produce sufficient

evidence to create any genuine dispute of material fact such that a reasonable factfinder could

conclude that his move to unpaid status was taken for FMLA retaliation.” Id.

Unlike Defendant’s first argument for 12(b)(1) dismissal based on preemption, the

undersigned does not find that Defendant’s second argument – applying Rule 56 and the

McDonnell Douglas standard – presents a close call.

First, the undersigned finds that the “temporal proximity” argument favors Defendant. The

undisputed fact that Defendant allowed Plaintiff FMLA leave for nine (9) years and only moved

him to unpaid status in 2020 after he repeatedly failed to get the training necessary to remain

qualified to fly, supports Defendant’s position that its actions were not retaliation.

Second, Plaintiff’s reliance on a statement that he misleadingly attributes to Captain Moore

and then repeatedly argues is “direct evidence” of retaliation undermines his position. The

undersigned cannot imagine that a reasonable jury could find Plaintiff’s own text message to be

“direct evidence” of retaliation by Defendant.

Finally, Defendant’s application of the McDonnell Douglas analysis is far more

compelling. In most pertinent part, Defendant has persuasively presented a legitimate non-

discriminatory reason for its conduct and Plaintiff has completely failed to show any evidence that

would allow a reasonable jury to find “that the employer’s explanation is not credible, or that the

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employer’s decision was more likely the result of retaliation.” Sharif v. United Airlines, Inc., 841

F.3d at 203 (citing Reeves, 530 U.S. at 143; Burdine, 450 U.S. at 256).

Based on the foregoing, the undersigned finds that even viewing the evidence in the light

most favorable to Plaintiff he has not set forth specific facts showing there is a genuine issue for

trial.

IV. CONCLUSION

IT IS, THEREFORE, ORDERED that “Defendant’s Motion For Summary Judgment”

(Document No. 26 ) is GRANTED.

Signed: February 2, 2022

David C. Keesler Tw

United States Magistrate Judge et

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