Bettencourt v. United Airlines Inc

□ Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT April 23, 2021

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

SHERRI BETTENCOURT, §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 4:19-CV-2981

§

UNITED AIRLINES INC, e¢ al, §

§

Defendants. §

ORDER

Pending before the Court is the Defendant United Airlines, Inc.’s (“United” or

‘“Defendant”) Motion for Summary Judgment (Doc. No. 27). The Plaintiff Sherri Bettencourt

(“Bettencourt” or “Plaintiff’) responded (Doc. No. 32) and United replied (Doc. No. 33). After

considering the motion, briefing, summary judgment evidence, and applicable law, the Court

grants the motion.

I. Factual Background

This is a labor-law case brought by Bettencourt against her former employer, United.

Bettencourt was a flight attendant for Continental Airlines, which merged with United in 2010.

Due to the merger, United became Bettencourt’s employer. As a flight attendant, Bettencourt was

represented by the Association of Flight Attendants-CWA, AFL-CIO (the “AFA” or the “Union”).

In March 2014,! Bettencourt sustained a lumbar strain while working for United when she reached

and turned a bag in an overhead bin during a flight. Bettencourt immediately went on medical

leave. At that time, the collective bargaining agreement (CBA) that governed Bettencourt’s leave

' There is apparently some confusion as to the exact date of Bettencourt’s injury. In her Amended Complaint and her

summary judgment response, Bettencourt claims she was injured in August of 2014. (See Doc. No. 3 at 3; Doc. No.

32 at 2). Bettencourt stated in her deposition, however, that she was injured in March of 2014. (See Doc. No. 27, Ex.

1 at 7). Nevertheless, the exact date of Bettencourt’s injury is not material to the dispute between the parties.

was the 2012-2014 PM Continental Airlines CBA (the “Continental CBA”). Section 14.C. of the

Continental CBA, entitled “Medical Leaves of Absence,” provided in relevant part:

l. Leaves of absence required due to illness or non-occupational injury will

be granted upon written verification of disability from a qualified medical

doctor. Any: such leave may not exceed the lesser of: (1) the period of

disability, or (2) six (6) years, or (3) the flight attendant’s total length of

active service. While on this type of leave, the flight attendant accrues

seniority for all purposes. At the end of the maximum period, the flight

attendant will be administratively terminated and removed from the System

Seniority List.

2. Leaves of absence required due to occupational injury will be granted upon

written verification from a qualified medical doctor. Any such leave may

not exceed the lesser of: (1) the period of disability, or (2) six (6) years, or

(3) the flight attendant’s total length of active service. While on this type of

leave the flight attendant accrues seniority for all purposes. At the end of

the maximum period, the flight attendant will be administratively

terminated and removed from the System Seniority List.

(Doc. No. 27, Ex. 6 at 166-67) (emphasis added). As one can see, the terms of leave for non-

occupational and occupational injury were identical. Both had a maximum of six years of leave.

After the merger and after arms-length negotiations between United and the AFA, they

were able to reach an agreement on a new CBA (the “Joint CBA”) in August of 2016. The new

relevant provision, entitled “E. Medical Leave” provided:

1. Leaves of absence required due to illness or non-occupational injury shall

be granted upon written verification of disability from a qualified medical

doctor. Any such leave may not exceed the lesser of:

a. The period of disability, or

b. Three (3) years, or

C. The Flight Attendant’s total length of active service.

2. At the end of the maximum period, the Flight Attendant will be

administratively terminated and removed from the System Seniority List.

3. For the purposes of pay and vacation step adjustments, Flight Attendants on

medical leave will continue to accrue longevity for the duration of the

medical leave up to the maximum leave in Paragraph E.1. above.

4, chart in Paragraph N. below contains additional rules and benefits that apply

to medical leave.

(Doc. No. 27, Ex. 5 at 150) (emphasis added). Unlike in the Continental CBA, the Joint CBA did

not specifically mention occupational injury. Importantly, the six-year medical leave maximum

was bargained down to three. Bettencourt contends that she never received a copy of the Joint

CBA while she was on leave.

In September of 2016, in coordination with the AFA, United sent a letter to Bettencourt

advising her of the three-year medical leave maximum under the Joint CBA and the fact that her

leave would expire on August 10, 2017. (See Doc. No. 27, Ex. 7). Bettencourt contends that she

never received such a letter, but did acknowledge in her deposition that the address on the letter

was her correct address at the time. (See id., Ex. 1 at 11-12).

Bettencourt did not return to work on August 10, 2017, so on that date, United sent a letter

to Bettencourt informing her that her employment had been terminated. (See id, Ex. 8). On August

13, 2017, Bettencourt attempted to list for a flight but discovered she was locked out of the system

to do so. She then called her supervisor and left two voicemails. She received the August 10 letter

the next morning, on August 14, 2017.

Two weeks later on August 28, 2017, United and the AFA executed a letter agreement

stating that they understood and had always intended that the “Medical Leave” provision of the

Joint CBA would apply to all medical leaves of absence (occupational and non-occupational). (See

id., Ex. 9). The only difference between the two types of leave was to be that Flight Attendants on

occupational medical leave would still accrue vacation. (/d.). The letter agreement stated that this

understanding was “consistent with the parties’ discussions during negotiations.” (/d.).

The AFA filed a grievance on Bettencourt’s behalf contesting the termination decision, and

United rejected the grievance. The AFA appealed the denial, which United also denied.

Subsequently, the AFA Grievance Chair concluded that Bettencourt was “properly

administratively terminated as contractually required by the terms of” the Joint CBA, and notified

Bettencourt of this conclusion. (Doc. No. 12, Ex. 12 at 10). The AFA then withdrew Bettencourt’s

grievance without prejudice. (/d. at 16).

Bettencourt instituted this action against both United and the AFA. She claimed that the

AFA breached its duty of fair representation and that United breached the CBA, or in the

alternative she claimed promissory estoppel. (See Doc. No. 3). Thereafter, Bettencourt voluntarily

moved to dismiss the AFA from the suit (Doc. No. 22), a motion that the Court granted (Doc. No.

24). United has now moved for summary judgment, arguing that: (1) this Court lacks jurisdiction

over Bettencourt’s claims against it because she dismissed the AFA, (2) Bettencourt has no

evidence that the AFA breached its duty of fair representation, (3) Bettencourt has no evidence

that her termination breached the applicable CBA, and (4) Bettencourt’s promissory estoppel claim

is preempted or, if it is not preempted, she has no evidence of it.

Il. Legal Standard

Summary Judgment is warranted “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 bears the burden of identifying those portions of the record it believes

demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf Inc. v. Nike, Inc.,

485 F.3d 253, 261 (Sth Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)).

Once a movant submits a properly supported motion, the burden shifts to the non-movant to show

that the Court should not grant the motion. Celotex, 477 U.S. at 321-25. The non-movant then

must provide specific facts showing that there is a genuine dispute. /d. at 324; Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A dispute about a material fact is

genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must draw all

reasonable inferences in the light most favorable to the nonmoving party in deciding a summary

judgment motion. Jd. at 255. The key question on summary judgment is whether there is evidence

raising an issue of material fact upon which a hypothetical, reasonable factfinder could find in

favor of the nonmoving party. Id. at 248.

Ill. Analysis

As previously stated, United argues that: (1) this Court lacks jurisdiction over Bettencourt’s

claims against it because she dismissed the AFA, (2) Bettencourt has no evidence that the AFA

breached its duty of fair representation, (3) Bettencourt has no evidence that her termination

breached the applicable CBA, and (4) Bettencourt’s promissory estoppel claim is preempted or

she has no evidence to support her claim.

A. Jurisdictional Issue

United argues first that this Court lacks jurisdiction to consider Bettencourt’s claims

because she voluntarily dismissed the AFA from the suit. The Railway Labor Act (RLA) governs

employment relations in the airline industry, including those between employees and employee

unions. See 45 U.S.C. §§ 181-188; Johnson v. Express One Intern., Inc., 944 F.2d 247, 250 (Sth

Cir. 1991) (‘The RLA .. . governs employer/employee relations with respect to common carriers

by air.”). Generally, the National Railroad Adjustment Board has exclusive jurisdiction “over a[n]

[airline] employee’s grievances against the [airline] involving the interpretation or application of

a collective bargaining agreement.” Trial v. Atchison, Topeka & Santa Fe Ry. Co., 896 F.2d 120,

123 (Sth Cir. 1990). An exception to this rule exists, however, “when the employee has not only a

dispute with the employer involving interpretation of the collective bargaining agreement, but also

a claim against the union for breach of the union’s duty of fair representation.” Jd; see also

Johnson y. Transp. Commc’ns Workers Union, 56 F.3d 1385, *2 n.2 (Sth Cir. 1995) (plaintiff-

employee “filed a ‘hybrid action,’ which under the [RLA] is an exception to the exclusive

jurisdiction of the National Railroad Adjustment Board over an employee’s individual grievances

against an employer”). In such a “hybrid” suit, the plaintiff-employee may file in federal district

court alleging claims against both the union and the employer. Trial, 896 F.2d at 123.

United contends that, because Bettencourt voluntarily dismissed the AFA from this action,

it is no longer a “hybrid” action and therefore not within the exception to the National Railroad

Adjustment Board’s exclusive jurisdiction. The law on this issue is not altogether settled. In

DelCostello v. Int’l Broth. of Teamsters, the Supreme Court stated that, in a hybrid action brought

under the National Labor Relations Act (NLRA), later amended by the Labor Management

Relations Act (LMRA),“[t]he employee may, if he chooses, sue one defendant and not the other;

but the case he must prove is the same whether he sues one, the other, or both.” 462 U.S. 151, 165

(1983); see also Brown v. Witco Corp., 340 F.3d 209, 213 n.5 (5th Cir. 2003) (“If the employee so

chooses, he may sue one defendant and not the other, but the case to be proved is the same whether

one or both are sued.”); Trial, 896 F.2d at 123 (“A hybrid action brought under the LMRA does

not have to join both the employer and the union as defendants; it is sufficient for the employee to

sue one or the other, but the employee must prove a cause of action against both.”). Thus, it is clear

that if the NLRA governed this suit, United’s argument would fail.

Nevertheless, neither the Supreme Court nor the Fifth Circuit has decided whether the same

rule applies when the hybrid action is instead brought under the RLA. In Trial, the Fifth Circuit

recognized that it “ha[d] not yet decided whether an employee bringing a hybrid suit under the

RLA must join the union as a party.” 896 F.2d at 123. In that case, though, the court held it did not

need to resolve the issue because the plaintiff's claims against the union were time-barred. The

Supreme Court has recognized that “carefully drawn analogies from the federal common labor law

developed under the NLRA may be helpful in deciding cases under the RLA.” Trans World

Airlines, Inc. v. Indep. Fed’n of Flight Attendants, 489 U.S. 426, 432 (1989). In addition, “[h]ybrid

claims under either [the NLRA or RLA] originate from an identical implied duty of fair

representation and involve a similar balancing of competing interests.” Brock v. Republic Airlines,

Inc., 776 F.2d 523, 526 (Sth Cir. 1985). Further, the Fifth Circuit has held that the similarities

between the NLRA and the RLA warrant applying DelCostello’s holding relating to the statute of

limitations to the RLA. See id. (“We agree that under the reasoning of De/Costello, the six-month

statute of limitations in § 10(b) of the National Labor Relations Act controls hybrid actions brought

under the Railway Labor Act.”). On the other hand, there may be convincing reasons why the

DelCostello rule regarding joinder of defendants in hybrid actions should not apply in RLA cases.

Neither party has sufficiently briefed the issue. In any event, the Court need not decide this issue

because it holds, as explained below, that summary judgment is warranted for other reasons.

B. Duty of Fair Representation

As explained, regardless of whether Bettencourt was required to pursue her claims with the

AFA as a party, she will still have to ultimately prove both that United breached the CBA and that

the AFA breached its duty of fair representation in this hybrid action. See Trial, 896 F.2d at 123.

United argues that she is unable to do so. “The duty of fair representation requires a union ‘to serve

the interests of all members without hostility or discrimination toward any, to exercise its

discretion with complete good faith and honesty, and to avoid arbitrary conduct.’” Carr v. Air Line

Pilots Ass’n, Int'l, 866 F.3d 597, 602 (Sth Cir. 2017), as revised (July 14, 2017) (quoting ONeill

v. Airline Pilots Ass’n, Int’l, 939 F.2d 1199, 1201 (Sth Cir. 1991)). Accordingly, a union breaches

its duty of fair representation only when the its conduct is arbitrary, discriminatory, or in bad faith.

Id. A union’s conduct is arbitrary when, “in light of the factual and legal landscape at the time of

the union’s actions, the union’s behavior is so far outside a wide range of reasonableness as to be

irrational.” Horner v. Am. Airlines, Inc., 927 F.3d 340, 343 n.1 (Sth Cir. 2019). A showing of

discrimination by the union “requires ‘substantial evidence’ that there was discrimination that was

‘intentional, severe, and unrelated to legitimate union objectives.’” Jd at 343 n.2 (quoting

Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emp.’s of Am. v. Lockridge, 403 U.S. 274,

301 (1971)). Finally, bad faith occurs when a union acts with a “motive to harm” a particular

group, and the action in question turns on the subjective motivation of the union officials. Carr,

866 F.3d at 602.

Bettencourt pleaded that the AFA breached its duty to her in two ways. First, she

complained of the Union’s entering into the letter agreement with United to apply the new medical

leave provision to occupational injuries retroactively, arguing that the move was meant to target

her specifically. (See Doc. No. 3 at 6). Next, she complained of the AFA’s abandonment of her

grievance against United.

United argues that neither allegation constitutes breach of the duty of fair representation as

a matter of law. United argues that Bettencourt can present no evidence that entering into the letter

agreement was arbitrary, discriminatory, or in bad faith, and further presents evidence that the

agreement was rational and consistent with agreements reached between United and the AFA

during negotiations. It presents the declaration of its Labor Relations manager, Robert Krabbe,

who testified that the CBA was always intended to treat occupational and non-occupational leave

equally. (Doc. No. 27, Ex. 4 at 4-5), This was consistent with the identical treatment of the two

types of leave in the old Continental CBA. Jd.

Next, United argues that the AFA’s decision to withdraw Bettencourt’s grievance after

completing Level 2 of the grievance process did not breach its duty of fair representation. Unions

have wide latitude and discretion when deciding whether, and how far, to pursue an employee’s

grievance. See Vaca v. Sipes, 386 U.S. 171, 191 (1967). Nevertheless, the union “may not

arbitrarily ignore a meritorious grievance or process it in perfunctory fashion.” Jd. Here, United

points to summary judgment evidence showing that the AFA was not only not arbitrary in its

handling of Bettencourt’s grievance, but also that the union handled the grievance in good faith

and with effective advocacy. Bettencourt herself testified in her deposition that she was happy with

the assistance she received during the grievance process and even went so far as to say that she

had no complaints with the way the AFA handled her grievance. (See Doc. No. 27, Ex. 1 at 17-

18, 30).? Moreover, the AFA did pursue Bettencourt’s grievance to Level 2 of the procedure. (See

Doc. No. 27, Ex. 12). The Union’s eventual change of position on the merits of the grievance does

not, in itself, establish a breach of duty. See Vaca, 386 U.S. at 191.

Bettencourt does not respond to this argument or evidence, but instead relies on her

contention that her lack of notice of the Continental CBA’s replacement by the Joint CBA

constitutes a breach by the Union. Her entire argument in her response brief as to this point is as

follows:

When Sherri Bettencourt was injured on the job, her employment was

subject to the terms of the first CBA, which protected the employee from

administrative termination for six years from the date of the occupational injury.

That provision remained in place throughout the tenure of Sherri Bettencourt and

even after her termination.

? The latter exchange was as follows:

Q: What complaints, if any, do you have about the AFA’s handling of your grievance?

A: Could you give me a better example of what you’re referring to.

Q: Right. In this lawsuit, are you making any complaints about the way -- the way the AFA

handled your grievance?

A: No.

Not one time was Bettencourt attempted to be contacted while out on leave.

No phone call or email. Where was Human Resources? Not receiving any type of

notice was arbitrary and bad faith.

(Doc. No. 32 at 6). This is patently deficient. Bettencourt points to no evidence in the record to

support her conclusory statement regarding arbitrary actions and bad faith. She does not rebut any

of United’s evidence that the union handled the grievance process and the letter agreement

rationally, professionally, and in good faith. It is clear that Bettencourt has failed to meet her

summary judgment burden to demonstrate a disputed issue of fact as to whether the AFA breached

its duty of fair representation. As previously explained, in order for Bettencourt to maintain her

suit for breach of the collective bargaining agreement against United, she must ultimately prove

her breach of duty claim against the Union. See Trial, 896 F.2d at 123. Given that she has not

controverted it legally or factually, United is entitled to summary judgment on Bettencourt’s claim

that it breached the collective bargaining agreement. Moreover, since the Court is granting

summary judgment on this ground, it need not address United’s argument that Bettencourt has no

evidence of its breach of the collective bargaining agreement.

C. Promissory Estoppel

United also argues that Bettencourt’s promissory estoppel claim fails as a matter of law

because it is preempted by the RLA. “[A] claim is preempted by the RLA only if it relies on the

interpretation of a provision of the CBA; if the claim is brought under state law without any

reference to the CBA, then it is not preempted.” Hirras v. Na’l R.R. Passenger Corp., 44 F.3d 278,

282 (Sth Cir. 1995). The elements of a promissory estoppel claim under Texas law are: “(1) a

promise, (2) foreseeability of reliance thereon by the promisor, and (3) substantial reliance by the

promisee to his detriment.” Gano vy. Diaz, 03-17-00119-CV, 2018 WL 3150988, at *7 (Tex.

App.—Austin June 28, 2018, no pet.).

10

In her summary judgment response, Bettencourt argues that the promise forming the basis

of her promissory estoppel claim was the medical leave of absence provision in the old Continental

CBA. (See Doc. No. 32 at 13). Clearly, then, this claim relies on the interpretation of that provision

and “refers to the CBA.” See Hirras, 44 F.3d at 282; cf Lagrotte v. AMR Corp., CIV.A.3:97-CV-

1278P, 1998 WL 133140, at *4 (N.D. Tex. Mar. 16, 1998) (promissory estoppel claim was not

necessarily completely preempted by RLA for removal purposes when alleged promise was

extrinsic to and independent of the CBA). Here, the alleged promise is within the CBA. The

promissory estoppel claim is therefore preempted by the RLA and summary judgment as to it is

granted.?

IV. Conclusion

For the foregoing reasons, the Court hereby grants United’s motion for summary judgment.

(Doc, No. 27). \

. * ( .

SIGNED at Houston, Texas this 23 _ day of April, 2021.

Andrew S. Hanen

United States District Judge

3 Moreover, even if the claim for promissory estoppel was not preempted by the RLA, under Texas law, “the

promissory-estoppel doctrine presumes no contract exists.” Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84

S.W.3d 212, 226 (Tex. 2002). Here, the relationship between Bettencourt and United was governed by the CBAs, so

her promissory estoppel claim would fail.

11