Sjoberg v. United Airlines, Inc.

UNITED STATES DISTRICT COURT September 17, 2024

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

ROSEMARY SJOBERG, §

§

Plaintiff, §

VS. § CIVIL ACTION NO. 4:21-cv-03471

§

UNITED AIRLINES, INC., §

§

Defendant. §

§

MEMORANDUM & ORDER

This is an employment discrimination case brought by Plaintiff Rosemary Sjoberg

(“Sjoberg” or “Plaintiff”) against Defendant United Airlines, Inc. (“Defendant” or

“United”). Pending before the Court is Defendant’s Motion for Summary Judgment. ECF

No. 47. Having reviewed the parties’ arguments and applicable law, the Court GRANTS

Defendant’s Motion.

I. BACKGROUND

Plaintiff was a flight attendant (“FA”) for over thirty years: first with Continental

Airlines (1987-2010) and then, after Continental and United merged in 2010, with United

(2010-2020). Throughout her career as a FA, she was based at Houston George Bush

Intercontinental Airport (“IAH”). The terms of conditions of Plaintiff’s employment were

governed by a Joint Collective Bargaining Agreement (“JCBA”) between United and the

Association of Flight Attendants. See ECF No. 22-2. While the JCBA permitted FAs to

engage in certain types of trip trading with one another, Section 7.I.19 of the JCBA

prohibited a form of trip trading called “parking,” defined as the “placement of trips on

other Flight Attendant’s lines to facilitate trading.” Id. at 67.

Defendant claims it began receiving complaints alleging improper trip trading

activity:

United management began receiving complaints alleging that FAs were violating

the JCBA by engaging in trip parking and other improper trading activities. To

address the employee uproar, United and the Union each issued stern

communication memos to all FAs in March 2019, emphasizing the contractual

prohibition on parking, and making clear that those who engaged in it would be

subject to serious disciplinary action, including termination.

ECF No. 47 at 6; see also ECF Nos. 47-8, 47-9.1

1 Following Defendant’s Motion for Summary Judgment, Plaintiff filed a Motion to

Strike several of the exhibits attached to Defendant’s motion. See ECF Nos. 70, 77, and

82. Plaintiff’s objections apply only to one exhibit that the Court references in the instant

decision: Exhibit D-9, a System Board decision related to a grievance filed by a different

flight attendant. ECF No. 47-14. Plaintiff first argues that the introduction of this exhibit

is irrelevant under Fed. R. Evid. 401 because the exhibit did not involve a claim for age

discrimination and the Panel there was concerned with the credibility and testimony of

the employee. However, just because Plaintiff’s circumstances are not identical to those

raised in the Exhibit does not mean that the Exhibit is irrelevant. Indeed, because Plaintiff

alleges that United accused her of “parking” not because she in fact did so, but based on

her age, it becomes relevant to determine what conduct actually constitutes parking under

the JCBA. See FAC ¶18. The instant Exhibit speaks on that very issue, providing

insight on what is a violation of Section 7.I.19 of the JCBA. ECF No. 47-14 at 12-22.

Moreover, the Exhibit also speaks to the validity of Defendant’s purported reason for

its decision to terminate plaintiff. See, e.g., Baker v. Union Pac. R.R., 145 F. Supp.

2d 837, 843 (S.D. Tex. 2001)(arbitration decisions relevant and admissible because it

spoke to the “validity of Defendant's articulated non-discriminatory reason for its

decision to terminate Plaintiff's employment”). This evidence is both probative and

relevant to the instant matter. Next, Plaintiff argues that Exhibit D-9 is inadmissible

hearsay including hearsay within hearsay under Fed. R. Evid. 802. However, Exhibit D-9

is not considered hearsay because it has become part of the JCBA. It is an “established

arbitral principle that ‘an award interpreting a [CBA] usually becomes a binding part of

the agreement[.]’” Trailways Lines, Inc. v. Trailways, Inc. Joint Council, 807 F.2d

1416, 1425 (8th Cir. 1986) (citation omitted); see also Air Line Pilots Assoc., Int’l v.

Delta Air Lines, Inc., 863 F.2d 87, 93 (D.C. Cir. 1988) (same); Trailways Lines, Inc.

v. Trailways, Inc. Joint Council, 624 F. Supp. 880, 885 (E.D. Mo. 1985) (“where, as

here, an arbitrator . . . construed a provision of the [CBA], such construction

becomes part of the existing labor agreement[.]”). Exhibit D-9 clearly interprets the

very sections of the JCBA that are at issue here and the admissibility of the JCBA is

undisputed in this matter. ECF No. 47-14 at 12-22; FAC, Exh. B. Following clearly

established case-law, Exhibit D-9 is not hearsay in this matter. As such, Plaintiff’s

After sending these communications, Defendant asserts it “gathered trip trading

data system-wide for all FAs and, as the investigation progressed, began to assess trip

trading data at various United hubs where longer flights were scheduled. Several of the

FAs appeared to have engaged in trip parking, including [Plaintiff].” Id. at 7.

Defendant sent Plaintiff a Letter of Investigation (“LOI”) on February 17, 2020,

and held an investigatory meeting with Plaintiff on February 20. See ECF No. 22 ¶ 23,

24; ECF No. 47 at 7, 13. Per Plaintiff’s First Amended Complaint (“FAC”), “[u]pon

questioning, Ms. Sjoberg denied the allegations of ‘parking’ by Defendant and offered

truthful responses, which explained that the trips were facilitated as honest trades and

justifiable scheduling conflicts prevented Ms. Sjoberg from completing the flight and/or

the trade.” ECF No. 22 ¶ 29; see also id. ¶ 41 (“During Ms. Sjoberg’s interview with

corporate security, she answered their questions and provided reasoned responses

regarding the trips and pairing information cited in the initial investigation letter, which

supported a correct finding that the trips were not ‘parked’ or in violation of any

company policy.”).

Following the investigatory interview, in a letter dated March 5, 2020, Defendant

terminated Plaintiff, citing to parking activity in violation of Section 7.I.19 of the JCBA

as the basis for her termination. See ECF No. 69-1 at 4 (“[T]he Company has determined

you are in violation of . . . JCBA section 7.I.19.”). Defendant acknowledged in its

termination letter that Plaintiff’s record otherwise “reflects no attendance or performance

infractions.” Id. In her FAC, Plaintiff reasserts that she “never received any

compensation, benefit or brokering for these trades. Ms. Sjoberg was in compliance with

(D-2, D-3, D-4, D-6), because those exhibits are not relevant to the Court’s disposition

of the case, we need not address them.

JCBA section 7.J.1., which authorizes unlimited trip trading.” ECF No. 22 ¶ 35. At the

time of her termination, Plaintiff was fifty-nine years old and a senior FA. Id. ¶ 19; see

also ECF No. 69 at 6.

On October 21, 2021, Plaintiff sued Defendant for age discrimination under the

Age Discrimination in Employment Act (“ADEA”) and the Texas Commission on

Human Rights Act (“TCHRA”), as well as for breach of contract. ECF No. 1. Plaintiff

abandoned her breach of contract claims in her FAC. ECF No. 22. Plaintiff alleges she

“was singled out by Defendant for investigation into alleged ‘parking trips’ because of

her age and seniority” and that Defendant “intended to terminate her at the time it issued

the February 17, 2020 LOI.” Id. ¶ 48, 49. Plaintiff also claims that “[t]he facts and

circumstances strongly indicate that United discharged these employees to intimidate

other senior flight attendants into taking early retirement, given the financial and business

uncertainties of the emerging COVID-19 pandemic.” ECF No. 69 at 3-4.

II. LEGAL STANDARD

Summary judgment is proper when there is no genuine dispute as to any material

fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

A genuine issue of material fact exists if a reasonable jury could enter a verdict for the

non-moving party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.

2000). The court can consider any evidence in “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). The Court must view all evidence in the light most

favorable to the non-moving party and draw all reasonable inferences in that party’s

favor. Crawford, 234 F.3d at 902.

The party moving for summary judgment bears the burden of demonstrating the

absence of a genuine dispute of material fact. Kee v. City of Rowlett, 247 F.3d 206, 210

(5th Cir. 2001). If the moving party meets this burden, the non-moving party must go

beyond the pleadings to find specific facts showing that a genuine issue of material fact

exists for trial. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). Summary

judgment is appropriate if a party “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case.” Celotex, 477 U.S. at 322.

III. DISCUSSION

Before the Court can reach the merits of Plaintiff’s age discrimination claims, it

must determine whether it has subject matter jurisdiction. Defendant contends that this

Court does not have jurisdiction because Plaintiff’s claims require interpretation of the

JCBA and, therefore, are precluded and preempted by the Railway Labor Act (the

“RLA”).2 See ECF No. 47 at 10-14.

“Congress’ purpose in passing the RLA was to promote stability in labor-

management relations by providing a comprehensive framework for resolving labor

disputes. To realize this goal, the RLA establishes a mandatory arbitral mechanism for . .

. two classes of disputes.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994)

(internal citations omitted). The two classes are termed “minor” and “major” disputes.

Relevant to this case are minor disputes, which “involve ‘controversies over the meaning

of an existing collective bargaining agreement in a particular fact situation.’” Id. at 253

(quoting Trainmen v. Chicago R. & I.R. Co., 353 U.S. 30, 33 (1957)). It is well-

2 The RLA has a “preemptive” effect on claims arising out of state law and a “preclusive”

effect on claims arising out of federal law. Here, Plaintiff’s claims are based on both

federal and state statutes.

established that “minor disputes are exclusively within the jurisdiction of RLA

adjustment boards.” Carmona v. Sw. Airlines Co., 536 F.3d 344, 347 (5th Cir. 2008).

Thus, if Plaintiff’s “claims can be resolved through an interpretation of the CBA, i.e., if

the rights at issue do not exist independent of the CBA, [her] suit would qualify as a

minor dispute under the RLA, and would be precluded from judicial review.” Id. at 348.

Where, as here, a plaintiff relies on circumstantial evidence of discrimination,

courts apply “the familiar McDonnell Douglas burden-shifting framework to age-

discrimination claims.” Reed v. Neopost USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012). To

succeed on her claim, Plaintiff must first meet the initial burden of establishing a prima

facie case. “Upon a showing of a prima facie case, the ‘burden shifts to the employer to

show a legitimate, nonretaliatory reason for the adverse employment action.’” Id.

(quoting Black v. Pan Am. Labs., L.L.C., 646 F.3d 254, 259 (5th Cir.2011). “If the

employer meets its burden, then the burden shifts back to the plaintiff to make an ultimate

showing of intentional discrimination.” Id.3

Defendant contends that Plaintiff’s assertions that “she had a contractual right to

engage in the conduct that resulted in her termination” and that Defendant misinterpreted

“the contractual provision limiting that right” makes this “the kind of case that the Fifth

Circuit and courts within it have found the RLA and/or LMRA preempt.” ECF No. 47 at

17 (emphasis in original). Defendant points to Reece v. Houston Lighting & Power Co.,

79 F.3d 485 (5th Cir. 1996) in support of its position. In Reece, the Fifth Circuit affirmed

3 “Importantly, the TCHRA and the ADEA involve a different causation inquiry at the

third stage of the McDonnell Douglas analysis. Under the ADEA, a plaintiff must prove

that age was the ‘but for’ cause of the challenged adverse employment action. Under the

TCHRA, however, a plaintiff need only show that age was a ‘motivating factor’ in the

defendant’s decision.” Reed, 701 F.3d at 440 (internal citations omitted).

the district court’s conclusion that Section 301 of the Labor Management Relations Act

(LMRA) preempted the plaintiff’s race discrimination and retaliation claims, which

“turn[ed] on questions of promotion, seniority, and assignment to training programs, all

of which are provided for in the CBA.” 79 F.3d at 487.4 Agreeing with the district court’s

preemption analysis, the Fifth Circuit determined that, because the defendant would

“undoubtedly rely on the CBA as its legitimate, non-discriminatory reason for

[plaintiff’s] treatment,” when the plaintiff “attempts to show that [defendant’s] stated

reason is pretextual, the CBA would have to be interpreted because [plaintiff] would have

to challenge [defendant’s] rights under the CBA.” Reece, 79 F.3d at 487. Applying

Reece, Defendant argues that Plaintiff’s claims are preempted and precluded because (1)

Defendant “relies on a disputed interpretation of the JCBA’s definition of ‘parking’ as a

legitimate, non-discriminatory reason for Plaintiff’s termination,” and (2) Plaintiff’s

attempt to show that Defendant’s stated reason for her termination is pretextual will

require the Court to interpret the JCBA. ECF No. 83 at 3-4.

Another court in this district recently resolved a very similar age discrimination

case brought by Plaintiff’s counsel against this same Defendant. See Palova v. United

Airlines, Inc., No. 4:21-CV-03451, 2024 WL 1514962 (S.D. Tex. Mar. 5, 2024). Palova

is a former United FA who was terminated for the same alleged activity under the same

JCBA as Plaintiff. In granting United’s motion for summary judgment in Palova, the

court determined the following:

By asserting that she was authorized by the JCBA to trade trips as she did, and

further stating that United wrongfully labeled her proper trip trades as Parking,

4 The Supreme Court has recognized that the standard for RLA minor disputes “is

virtually identical to the pre-emption standard the Court employs in cases involving § 301

of the LMRA.” Hawaiian Airlines, Inc., 512 U.S. at 260.

Plaintiff puts interpretations of provisions of the JCBA at the center of this

dispute. For the Court to adjudicate this case and properly conduct the burden-

shifting analysis associated with discrimination cases, as outlined in the Supreme

Court’s holding in McDonnell Douglas Corporation v. Green, the Court will

have to determine whether Plaintiff’s trip trading constituted Parking and

warranted her termination.

Id. at *3 (internal citations omitted) (emphasis added).

Plaintiff refutes Defendant’s argument that the RLA preempts and precludes

Plaintiff’s claims under the ADEA and TCHRA. See ECF No. 69 at 9-10. According to

Plaintiff, “[e]ven if the JCBA might be consulted in this litigation, Ms. Sjoberg’s ADEA

or TCHRA claims do not ‘turn on’ the interpretation of any provision in the JCBA.” Id. at

9 (emphasis in original). Plaintiff is correct that for “the federal courts to have subject

matter jurisdiction over claims like [Plaintiff’s] ‘does not require that the CBA be

irrelevant to the dispute; either party may still use the CBA to support the credibility of

its claims.’” Carmona, 536 F.3d at 349 (cleaned up) (quoting Jones v. Roadway Express,

Inc., 931 F.2d 1086, 1090 (5th Cir.1991)). However, in attempting to apply that principle

to the instant case, Plaintiff “fails to recognize the distinction between reference to the

CBA and reliance on it.” Id.

In Carmona, which Plaintiff relies on for support, the Fifth Circuit held that,

because plaintiff’s “allegations of Title VII sex discrimination and ADA disability

discrimination do not require interpretation of the CBA, they do not constitute a minor

dispute precluded by the RLA.” Id. at 351. But Carmona is readily distinguishable from

the instant case: As Defendant notes, in Carmona, the Fifth Circuit emphasized that

“[e]ven though a court would have to refer to the CBA to consider fully each of the

alleged acts of disparate treatment, there is no disagreement about how to interpret these

provisions of the CBA.” Id. at 349 (emphasis in original). Here, by contrast, the Court

“will be required to determine if Plaintiff actually engaged in Parking” as proscribed by

the JCBA. Palova, 2024 WL 1514962, at *3. It is not within the Court’s jurisdiction to

interpret the parking provision of the JCBA. Thus, Plaintiff’s claims are precluded and

preempted by the RLA, and Defendant’s Motion for Summary Judgment must be

granted.

IV. CONCLUSION

Finding that it does not have jurisdiction to hear Plaintiff's suit, the Court

GRANTS Defendant’s Motion for Summary Judgment. ECF No. 47. Plaintiffs claims

are DISMISSED with prejudice. All pending motions are DENIED without prejudice as

moot.

IT IS SO ORDERED.

SIGNED at Houston, Texas, on this 17" day of September, 2024.

YL Edn

KEITHP.ELLISON =

UNITED STATES DISTRICT JUDGE