Lekas v. United Airlines Inc

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FOTIOS G. LEKAS, 

Plaintiff-Appellant,

v.  No. 00-2457

UNITED AIRLINES, INCORPORATED,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-00-1191-A)

Argued: January 22, 2002

Decided: February 28, 2002

Before WILKINS and NIEMEYER, Circuit Judges, and

Catherine C. BLAKE, United States District Judge for the

District of Maryland, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Wilkins and Judge Blake joined.

COUNSEL

ARGUED: Karen Mary Kennedy, ROSENFELD, SHEARER, JOR-

GENSON & KENNEDY, P.C., Fairfax, Virginia, for Appellant. Gary

S. Kaplan, SEYFARTH SHAW, Chicago, Illinois, for Appellee. ON

BRIEF: Frederick S. Mittelman, ROSENFELD, SHEARER, JOR-

GENSON & KENNEDY, P.C., Fairfax, Virginia, for Appellant.

2 LEKAS v. UAL

OPINION

NIEMEYER, Circuit Judge:

Fotios Lekas, an airline employee, commenced this action on July

20, 2000, under the Railway Labor Act, 45 U.S.C. § 153 First (p), to

enforce an arbitration award of the System Board of Adjustment dated

February 17, 1998. Because this action was commenced more than

two years after it accrued, the district court dismissed it as time-barred

under 45 U.S.C. § 153 First (r). We affirm.

I

Lekas, a mechanic who worked at Dulles International Airport for

United Air Lines, Inc. ("United"), was fired on October 31, 1996, for

threatening and intimidating a supervisor, in violation of United’s

Rules of Conduct. Lekas challenged his termination through the man-

datory grievance procedure of the Collective Bargaining Agreement

between United and his union, the International Association of

Machinists and Aerospace Workers ("IAMAW"). Following a hear-

ing, an arbitrator from the United-IAMAW System Board of Adjust-

ment (the "Board") entered an opinion and award dated February 17,

1998, in which the arbitrator reduced Lekas’ termination to a 30-day

suspension and reinstated Lekas "to employment, with seniority

unimpaired." The Board also ordered that Lekas be "paid for all time

lost except for 30 days." Explaining his decision, the arbitrator stated

that Lekas’ conduct, while "clearly impermissible," did "not rise to

the level of a dischargeable offense."

Pursuant to the Board’s order, United reinstated Lekas on March

16, 1998. It refused, however, to remit back pay for time lost until

Lekas supplied United with proof, through W-2 forms or other sub-

stantiation, of his earnings from other sources after he was fired by

United. United intended to subtract those earnings from the back pay

owed to Lekas. Believing that he was entitled to back pay without any

deduction for interim earnings, Lekas refused to provide the requested

information. This standoff became the basis for this action.

During the period between his reinstatement in March 1998 and

June 1999, Lekas’ union told Lekas that it was trying to work out the

LEKAS v. UAL 3

dispute with United. But after more than a year had passed, Lekas

apparently concluded that the discussions were going nowhere, and he

elected, on June 18, 1999, to file an action in Virginia state court to

enforce the arbitration award. For unknown reasons, Lekas voluntar-

ily dismissed that action two months later.

In October 1999, the union advised Lekas that United was filing a

motion for clarification of the arbitrator’s award and that Lekas

should wait until that motion was resolved before taking further

action. There is no evidence, however, that United undertook or

intended to undertake any action to clarify the arbitrator’s award. The

record shows only that United continued to insist that it was entitled

to proof of Lekas’ interim earnings before remitting Lekas’ back pay.

Apparently changing its advice or amending its original position, the

union advised Lekas on November 17, 1999, that United would not

pay the award voluntarily without deducting interim earnings. During

that same period, Lekas’ lawyer advised Lekas to concede the issue

and accept the back pay amounts with the deductions for interim earn-

ings.

Finally, in May 2000, the union repeated to Lekas that United

would pay Lekas’ net back pay if Lekas would "either state under

oath that [he] had no interim earnings or if [he] would provide [his]

W-2 forms for the period prior to [his] reinstatement." But Lekas con-

tinued to insist on receiving the unreduced amount of back pay.

On July 20, 2000, two years and five months after the Board’s Feb-

ruary 17, 1998 order, Lekas commenced this action under the Railway

Labor Act, 45 U.S.C. § 153 First (p), to enforce the order. On Unit-

ed’s motion to dismiss, the district court found that Lekas’ action was

"barred by the two year statute of limitations prescribed in the Rail-

way Labor Act" and therefore dismissed Lekas’ claim.1 This appeal

ensued.

1

In addition to his § 153 claim, Lekas alleged in separate counts a vio-

lation of the Fair Labor Standards Act and breach of contract. These

counts were dismissed voluntarily.

4 LEKAS v. UAL

II

Lekas filed his claim for enforcement of the Board’s order under

45 U.S.C. § 153 First (p),2 which provides in pertinent part:

If a carrier does not comply with an order of a division of

the Adjustment Board within the time limit in such order,

the petitioner, or any person for whose benefit such order

was made, may file in the District Court of the United States

. . . a petition.

The statute of limitations contained in § 153 requires that any action

be commenced "within two years from the time the cause of action

accrues under the award of the division of the Adjustment Board, and

not after." 45 U.S.C. § 153 First (r). The district court applied this

statute of limitations to dismiss Lekas’ action.

Lekas concedes that § 153 First (r) supplies the applicable limita-

tions period for his action. He contends, however, that his action, filed

in July 2000, was not untimely because his cause of action for Unit-

ed’s failure to comply with the Board’s order did not "accrue" until

either November 17, 1999, or June 18, 1999. Noting that a cause of

action "can only begin to accrue after the date has passed by which

the defaulting party has failed to perform," Lekas points to the fact

that the Board’s award did not specify a date for performance. He

argues, therefore, that a cause of action to enforce such an order does

2

There may be some doubt regarding Lekas’ ability to file such an

action. When the provisions of the Railway Labor Act were made appli-

cable to the airline industry in 1936, Congress excluded 29 U.S.C. § 153

(relating to the resolution of disputes through arbitration before the

National Railroad Adjustment Board) from applicability. Without more,

the question arises whether Lekas, who is in the airline industry, can state

a claim under § 153. However, because the exclusion of § 153 left some

gaps in adjudicating airline employee grievances, the Supreme Court has

looked in some degree to § 153 for guidance in handling airline griev-

ances. See International Ass’n of Machinists, AFL-CIO v. Central Air-

lines, Inc., 372 U.S. 682, 685, 694 & n.18 (1963). Because we conclude

that any § 153 claim that Lekas might have is time-barred, we need not

decide whether Lekas has a claim under § 153.

LEKAS v. UAL 5

not accrue until the plaintiff discovers, or in the exercise of due dili-

gence should have discovered, the acts constituting the alleged wrong,

in this case the failure to comply. Initially, Lekas claims that he first

discovered his cause of action against United on November 17, 1999,

when his lawyer told him to give up and accept back pay with deduc-

tions. Alternatively, he concedes that the date on which he filed his

state court action, June 18, 1999, might also be applicable. He

observes, "both of these dates objectively point to [his] wake up call.

Either date defines the moment when [he] knew or should have

known that he would not get back wages without a fight." And, of

course, either date for commencement of the limitations period would

make his action timely.

United, too, concedes that § 153 First (r) is the appropriate statute

of limitations to apply, even though it recognizes that § 153 was

excluded from application to the airline industry. See supra note 2.

United believes that, under Central Airlines, the limitations period in

§ 153 can appropriately be borrowed to enforce Board orders. See

Ass’n of Flight Attendants v. Republic Airlines, 797 F.2d 352, 356-57

(7th Cir. 1986) (applying the two-year statute of limitations to litiga-

tion over airline System Adjustment Board awards); Gordon v. East-

ern Airlines, Inc., 268 F. Supp. 210, 213 (W.D. Va. 1967) ("The same

two year statute of limitations applicable to railroad disputes via

§ 153 of Title 45 U.S.C. also applies to similar disputes arising in the

airline industry"). In adopting this position, United implies that it is

giving Lekas the benefit of doubt because, it notes, authority also

exists for a shorter statute of limitations. See, e.g., Barnett v. United

Airlines, Inc., 738 F.2d 358, 364 (10th Cir. 1984) (applying six-month

statute of limitations borrowed from § 10(b) of the National Labor

Relations Act).

At bottom, the parties agree that Lekas’ claim, because it is brought

under § 153, is subject to the statute of limitations included in § 153

First (r).

The time period specified by § 153 First (r) begins when the cause

of action for enforcement "accrues." And a cause of action accrues

when it "come[s] into existence as a legally enforceable claim." Mer-

riam Webster’s Collegiate Dictionary 8 (10th ed. 1994). While this

definition of "accrue" does not consider a plaintiff’s knowledge about

6 LEKAS v. UAL

his cause of action, we recognize that such an entirely objective inter-

pretation would bar many claims before they could, in a practical

sense, be brought. Accordingly, in order for a claim to exist, the plain-

tiff must have some elemental knowledge of it. This does not mean,

however, that a plaintiff must have complete knowledge of all ele-

ments or a legal understanding of the nature of the claim before his

claim exists. Such a completely subjective interpretation would defeat

the public-interest policy for limitations periods, that at some point

"the right to be free of stale claims . . . comes to prevail over the right

to prosecute them." United States v. Kubrick, 444 U.S. 111, 117

(1979) (quoting Order of R.R. Telegraphers v. Ry. Express Agency,

Inc., 321 U.S. 342, 349 (1944)). As the Kubrick Court explained:

[Statutes of limitations] are statutes of repose; and although

affording plaintiffs what the legislature deems a reasonable

time to present their claims, they protect defendants and the

courts from having to deal with cases in which the search

for truth may be seriously impaired by the loss of evidence,

whether by death or disappearance of witnesses, fading

memories, disappearance of documents, or otherwise.

444 U.S. at 117. With the competing interests in mind, the Supreme

Court held in Kubrick that a cause of action under the Federal Tort

Claims Act "accrues," not when the plaintiff knew or should have

known of his legal rights, but when he possessed sufficient facts about

the harm done to him that reasonable inquiry would reveal his cause

of action. Id. at 122-24; accord Nasim v. Warden, Md. House of Cor-

rection, 64 F.3d 951, 955 (4th Cir. 1995) (applying the same defini-

tion to limitations period for bringing an action under 42 U.S.C.

§ 1983). Accordingly, the "inquiry notice" standard applies to those

statutes of limitations whose period begins when the cause of action

accrues. Nasim, 64 F.3d at 955.

In the case before us, Lekas’ § 153 claim to enforce the Board’s

order came into existence when United failed to comply with the

order. If the Board had directed United to remit back pay within a

specified time, the failure to comply would have occurred when pay-

ment was not made within that specified time. But because no time

was specified, noncompliance arose upon the failure to make payment

by the end of the day the order was entered, or certainly by a reason-

LEKAS v. UAL 7

able time thereafter. See, e.g., Jones v. Seaboard System R.R., 783

F.2d 639, 643 (6th Cir. 1986) (holding that the employee’s cause of

action accrued on the date that the Board issued its award). United’s

alleged failure to comply with the Board’s order became certain when

United expressed to Lekas on March 16, 1998, that, while willing to

reinstate Lekas, it was unwilling to remit back pay without substantia-

tion of Lekas’ interim earnings and then only the net amount. Because

Lekas believed that United, in taking that position, was disobeying the

Board’s order, he could have filed his claim — the same claim he

eventually filed over two years later — on that day. Even if Lekas did

not fully appreciate the legal basis for his claim in March 1998 — a

point he does not maintain in his brief — Lekas was certainly put on

inquiry notice sufficient to charge him at that time with knowledge of

his claim. See Kubrick, 444 U.S. at 123; Nasim, 64 F.3d at 955. In

these circumstances, Lekas’ action to enforce the Board’s order was

untimely when filed on July 20, 2000.

III

Alternatively, Lekas contends that the period of limitations should

be extended under either the doctrine of equitable tolling or the doc-

trine of equitable estoppel. He argues that, in October 1999, a union

representative told Lekas that United was seeking a clarification from

the Board and that Lekas should wait until United received a defini-

tive ruling before filing suit. Lekas asserts that he relied on this com-

munication, believing that as soon as an arbitrator clarified the award

one way or the other, United would pay him what was owed. Lekas

argues that he waited 14 months for clarification, during which time

the running of the limitations period should have been tolled.

"The doctrines of equitable tolling and equitable estoppel have a

common origin; they are based primarily on the view that a defendant

should not be permitted to escape liability by engaging in misconduct

that prevents the plaintiff from filing his or her claim on time."

English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987).

The element common to both doctrines is some form of misconduct

by the defendant. Equitable tolling applies where a defendant, by

active deception, conceals a cause of action. Id. And equitable estop-

pel applies where "the defendant engages in intentional misconduct to

8 LEKAS v. UAL

cause the plaintiff to miss the filing deadline," even though the plain-

tiff knows that it exists. Id.

In this case, there is no evidence that United acted either to conceal

a cause of action from Lekas or to cause Lekas to miss the filing

deadline. From March 1998 onward, United consistently maintained

its position that it would remit to Lekas only the net back pay after

deducting Lekas’ other interim earnings.

Even if we were able to credit Lekas’ claim that the union told him

that United was seeking clarification from the Board, such a commu-

nication would not support application of either equitable doctrine.

The fact that United may have been seeking clarification from the

Board to support its position does not amount to evidence that United

either concealed Lekas’ cause of action or caused Lekas to miss a fil-

ing deadline. United never did or said anything to suggest that, if

Lekas would delay or forego filing suit, he would be compensated.

Thus, this case is clearly distinguishable from the cases cited by

Lekas in which equitable estoppel or equitable tolling has been

applied. See, e.g., Dement v. Richmond, Fredericksburg & Potomac

R.R., 845 F.2d 451, 461 (4th Cir. 1988) (tolling the limitations period

where appellants were "affirmatively asked" to refrain from suit and

were told that their problem would be solved without the "need for

civil suit"); United States ex rel. Humble Oil & Refining Co. v. The

Fidelity & Cas. Co., 402 F.2d 893, 896-97 (4th Cir. 1968) (invoking

equitable estoppel where the defendant acknowledged liability and

there was an explicit promise to pay the plaintiff’s outstanding debts,

followed by extensive negotiations, which continued until the limita-

tions period had run).

In any event, Lekas’ equitable arguments are logically inconsistent

with his conduct. Even if the union’s advice to Lekas could be attri-

buted to United, that advice was not given until after Lekas had

already filed his state court action. Lekas thus had already concluded

that it was necessary to file suit to enforce the Board’s order. In addi-

tion, Lekas’ lawyer told Lekas to give up on November 17, 1999 —

at least three months before the limitations period would expire —

making Lekas’ request for any equitable remedy even less compel-

ling.

LEKAS v. UAL 9

In sum, we reject Lekas’ arguments that the limitations period was

tolled by either the doctrine of equitable tolling or the doctrine of

equitable estoppel.

IV

Finally, Lekas contends the district court erred by failing to remand

this case to the Board for clarification of when United had to comply

with the Board’s order. To the extent that Lekas had any legitimate

right to ask the district court to remand this case to the Board to clar-

ify its order, that right would have arisen under § 153 First (q), which

provides that an employee who "is aggrieved by . . . the failure of the

division to include certain terms in [an] award . . . may file [suit] in

any United States district court in which a petition under para-

graph (p) could be filed," whereupon the district court "may remand

the proceeding to the division for . . . further action." An action under

paragraph (q) has the same two-year limitations period that is applica-

ble to any claim under § 153.

Because a claim under paragraph (q) would be based upon the

Board’s failure to include a specified time for compliance within the

award, such a cause of action would have accrued on the date when

the order issued. By reading the order, Lekas would have become

fully aware of the claim. Accordingly, under this alternative theory,

Lekas’ request for remand would still be time-barred.

For the reasons given, the judgment of the district court is

AFFIRMED.