Petition for Writ of Certiorari — Kathleen Betts, Petitioner v. United Airlines, Inc.

Supreme Court briefOct 28, 2019

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No. 19-

IN THE

SUPREME COURT OF THE UNITED STATES

KATHLEEN BETTS,

Petitioner

v.

UNITED AIRLINES, INC.,

Respondents

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

APPENDIX

Kathleen Betts/PRO SE

128 Gilmore Dr.

Gulf Breeze, FL 32561

(850) 816-6458

No. 19-

APPENDIX TABLE OF CONTENTS

Appendix A, Application for Extension of Time to file Writ of

Certiorari to the United States Supreme Court..........................

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Appendix B, Seventh Circuit Mandate

&(A ly>.hicd of PandL {2iJ\eArtfi\

Appendix C, Emergency Motion to Stay Mandate..................

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Appendix D, Final Judgment.

a8

Appendix E, Nonprecedental Disposition.

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Appendix F, March 20, 2019 Order.

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Appendix G, envelope sent from Seventh Circuit dated

Feb 13,2019...................................................................

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Appendix H, February 13, 2019 Order.

Appendix I, LC Docket Entry dated April 10, 2019

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Appendix J, Notice of Appeal dated October 29, 2018

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Appendix K, LC Memorandum and Order dated Sept. 28, 2019...... a20

Appendix L, Respondent's Supp.App.71: Breathalyzer Results

a36

Appendix M, Docket Entry dated July 27, 2017 (Staying

Discovery Indefinitely).....................................................

,a37

Appendix N, Arbitration Award dated October 5, 2016

,a38

Appendix O, Order granting representation dated 7/10/2017

a39

Appendix P, EEOC charge dated April 10, 2017 alleging employment

retaliation based on prior litigation with United Airlines, to wit a jury

verdict awarding plaintiff damages in the Northern District of

California on March 30, 1999 Betts v United Airlines, C-97-4329,

,a40

No. District of California.

Appendix Q, Hybrid 301 action (complaint) filed against United

Airlines and Collective Bargaining Unit Airline Pilots Association

(ALPA) on April 10, 2017

a46

Appendix R, Seventh Circuit General Docket.

a56

Appendix S, Docket from the United States District Court for the

Northern District of IL................................................................... a63

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Case: 1§^enft,©0ffiH£3f the

Office of the Clerk

Washington, DC 20543-0001

August 22, 2019

Pages: 2

Scott S. Harris

Clerk of the Court

’ (202) 479-3011

Clerk

United States Court of Appeals for the Seventh

Circuit

219 S. Dearborn Street, Room 2722

Chicago, IL 60604

Re: Kathleen Betts

v. United Airlines, Inc.

Application No. 19A199

(Your No. 18-3336)

Dear Clerk:

The application for an extension of time within which to file a petition

for a writ of certiorari in the above-entitled case has been presented to

Justice Kavanaugh, who on August 22, 2019, extended the time to and

including October 27, 2019.

This letter has been sent to those designated on the attached

notification list.

Sincerely,

Scott S. Harris, Clerk

by

mpong

Susdtf!

Case Analyst

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u

Case: 18-3336

Filed: 08/27/2019

Document: 52

Pages: 2

Supreme Court of the United States

Office of the Clerk

Washington, DC 20543-0001

NOTIFICATION LIST

Ms. Kathleen Betts

P.O. Box 361

Gulf Breeze, FL 32562

Ms. Kathleen Betts

P.O. Box 361

Gulf Breeze, FL 32562

Clerk

United States Court of Appeals for the Seventh Circuit

219 S. Dearborn Street, Room 2722

Chicago, IL 60604

<? t

Scott S. Harris

Clerk of the Court

(202) 479-3011

Case: 18-3336

Filed: 06/17/2019

Document: 51

Pages: 2

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse

Room 2722 - 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone: (312) 435-5850

www.ca7.uscourts.gov

NOTICE OF ISSUANCE OF MANDATE

June 17, 2019

To:

Thomas G. Bruton

UNITED STATES DISTRICT COURT

Northern District of Illinois

Chicago, IL 60604-0000

KATHLEEN BETTS,

Plaintiff - Appellant

No. 18-3336

v.

UNITED AIRLINES, INC.,

Defendant - Appellee

Originating Case Information:

District Court No: l:17-cv-02709

Northern District of Illinois, Eastern Division

District Judge Thomas M. Durkin

Herewith is the mandate of this court in this appeal, along with the Bill of Costs, if any. A

certified copy of the opinion/order of the court and judgment, if any, and any direction as to

costs shall constitute the mandate.

RECORD ON APPEAL STATUS:

No record to be returned

NOTE TO COUNSEL:

If any physical and large documentary exhibits have been filed in the above-entitled cause, they are

0 3

Case: 18-3336

Document: 51

Filed: 06/17/2019

Pages: 2

to be withdrawn ten (10) days from the date of this notice. Exhibits not withdrawn during this period

will be disposed of.

Please acknowledge receipt of these documents on the enclosed copy of this notice.

Received above mandate and record, if any, from the Clerk, U.S. Court of Appeals for the

Seventh Circuit.

Date:

form name: c7_Mandate(form ID: 135)

Received by:

Case: 18-3336

Document: 48

Filed: 05/30/2019

Pages: 1

jitates Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

May 30, 2019

Before

MICHAEL S. KANNE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 18-3336

KATHLEEN BETTS,

Plaintiff-Appellant,

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

v.

No. 17 C 2709

UNITED AIRLINES, INC.,

Defendant-Appellee.

Thomas M. Durkin,

Judge.

ORDER

On consideration of the petition for rehearing filed in the above-entitled cause,

all judges on the original panel have voted to deny a rehearing. It is, therefore,

ORDERED that the aforesaid petition for rehearing is DENIED.

qH(i')

I.

Case: 18-3336

Filed: 05/15/2019

Document: 45-1

Pages: 3

(1 of 3)

%/S%

IN THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

Kathleen Betts/

Plaintiff-Appellant

Case: 18-3336

LC: l:17-cv-2709

v.

United Airlines

Defendants/Appellees

EMERGENCY MOTION TO STAY

MANDATE

DUE TO FILING FOR RELIEF FROM THE

LOWER COURT

UNDER FRCP 62.1 and FRAP 12.1

COMES NOW THE PRO SE

!

APPELLANT,

stating the Seventh Circuit is in receipt of a

petition

for rehearing received by the Court on May 10,

2019.

The petition for rehearing has not been

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nc

0*

Case: 18-3336

Document: 45-1

Filed: 05/15/2019

docketed. After speaking to a Clerk today, he

mentioned that the petition may not be timely

(according to the legal clerk working on this

matter.

Pro Se litigants must use the mail for filings.

The mail in NW Florida is taking five days to

reach

its destination, putting an undue burden on the

appellant.

The appellant has reason to believe that the

Seventh Circuit will issue a mandate first instance

tomorrow morning (5/15/19).

The earliest the applellant can get any

documents to the Court via Fed EX is

10:30. Plaintiff also asks for relief from the

Court of Appeals under FRAP 10 and its

inherent equitable principals.

The plaintiff, based on evidence

which was received only a few days ago

(Friary business records) indicate

that what is stated in the arbitral record

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Pages: 3

(2 of 3)

Case: 18-3336

Document: 45-1

Filed: 05/15/2019

and in the lower court are false. The Friary

business records that United is utilizing are false.

Fraud on the Court has been committed

by several individuals, including the federal

arbitrator, United's counsel, and court appointed

counsel for the plaintiff.

The appellant will attempt to contact the

emergency judge at the Court of Appeals

tonight, asking for the stay before they

(due to information and belief) issue the mandate.

Respectfully,

jC

—

(X^

Kathleen Betts pro se

PO Box 361

Gulf Breeze FL 32562

820-816-6458

850-736-3918

s/wjfr

Servive will be provided to

Kim Watterson/co Reed Smith

355 S Grand Avenue

Ste 2800

Los Angeles, CA 90071

o7

Pages: 3

(3 of 3)

Case: 18-3336

Document: 44

Filed: 04/24/2019

Pages: 1

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse

Room 2722 - 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone: (312) 435-5850

www.ca7.uscourts.gov

FINAL JUDGMENT

April 24, 2019

Before:

MICHAEL S. KANNE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

AMY C. BARRETT, Circuit Judge

KATHLEEN BETTS,

Plaintiff - Appellant

No. 18-3336

v.

UNITED AIRLINES, INC.,

Defendant - Appellee

Originating Case Information:

District Court No: l:17-cv-02709

Northern District of Illinois, Eastern Division

District Judge Thomas M. Durkin

The judgment of the District Court is AFFIRMED, with costs, in accordance with the

decision of this court entered on this date.

form name: c7_FinalJudgment(form ID: 132)

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Cas

18-

3336noRm®«w mump

Pages: 3

To be cited only in accordance with Fed. R. App. P. 32.1

Ltnitefr JStates QJiutrt of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 23, 2019*

Decided April 24, 2019

Before

MICHAEL S. KANNE, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 18-3336

KATHLEEN BETTS,

Plaintiff-Appellant,

v.

UNITED AIRLINES, INC.,

Defendant-Appellee.

Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 17 C 2709

Thomas M. Durkin,

Judge.

ORDER

Kathleen Betts was fired from her job as a pilot after twice failing alcohol tests

administered by her employer, Continental Airlines. After unsuccessfully challenging

her discharge in arbitration proceedings, she sued under the Railway Labor Act, 45

U.S.C. § 153 First (q), seeking to vacate the arbitration award. We agree with the district

court that she has presented no valid reason to disturb the award, so we affirm.

* We have agreed to decide the case without oral argument because the briefs and

record adequately present the facts and legal arguments, and oral argument would not

significantly aid the court. Fed. R. App. P. 34(a)(2)(C).

4pp ^

Continental Airlines regularly administered "no notice" alcohol tests to its pilots.

In 2008, Betts failed one. As a result, she and Continental entered into a "Last Chance

Agreement," which required Betts to complete successfully a rehabilitation course and

to abstain from drinking for the "remainder of her career" with Continental. The

Agreement specified that she would be discharged for cause if she violated these terms.

After Betts failed an alcohol test at her treatment facility, Continental fired her.

Betts sought review of the discharge through arbitration before the System Board

of Adjustment, as provided in her collective-bargaining agreement. Her case remained

pending for several years. Finally, in 2016, the Board issued an award upholding Betts's

discharge on the basis that she violated the Last Chance Agreement.

Betts then sued United (which had merged with Continental) under the Railway

Labor Act. With the aid of counsel, she argued that the Board exceeded its jurisdiction

because the award did not "draw its essence" from the Last Chance Agreement and the

award was "based on evidence gained in violation of public policy." The district court

entered summary judgment for United, ruling that the Board did not exceed its

jurisdiction because its decision was based on its interpretation of the Last Chance

Agreement. The court added that no Seventh Circuit case has ruled that "public policy"

is a ground for disturbing an arbitral award, and in any case public policy favored

upholding the award.

Betts, now pro se, seeks review of the district court's decision. Although her

arguments mainly focus on events that occurred after arbitration, we construe her

appeal as challenging the award. In reviewing a challenge to an arbitration award

under the Railway Labor Act, 45 U.S.C. § 153, we apply "one of the most deferential

standards of judicial review in all of federal law." Bhd. of Locomotive Eng'rs & Trainmen,

Gen. Comm, of Adjustment, Cent. Conference v. Union Pac. R.R. Co., 719 F.3d 801, 803

(7th Cir. 2013). We will disturb an award only for failure "to comply with the

requirements of this [Act], for failure of the order to conform, or confine itself, to

matters within the scope of the [Board's] jurisdiction, or for fraud or corruption by a

member of the [Board]." 45 U.S.C. § 153 First (q). None of these grounds exists here.

Betts presented no evidence that the Board committed fraud. In her appellate

brief, she speculates that, after the Board issued the arbitration award, one of the

arbitrators sabotaged her position in a doctoral program in which she was enrolled.

This argument goes nowhere. Not only is it forfeited because Betts did not raise it with

Cf fO

Case: 18-3336

Document: 43

Filed: 04/24/2019

No. 18-3336

Pages: 3

Page 3

the district court, Wheeler v. Hronopoulos, 891 F.3d 1072,1073 (7th Cir. 2018), but it is also

unrelated to the arbitral proceedings or the award itself.

Nor did Betts raise any basis for challenging the award on grounds that the

Board did not comply with the Act or exceeded its arbitral jurisdiction. In opposing

summary judgment, Betts argued only that the Board misconstrued the requirement in

the Last Chance Agreement that she abstain from alcohol for "the remainder of her

career" at Continental. She observed that the Board applied this requirement to the

period when she received rehabilitation treatment, and in her view the requirement

applied only while she was working. But as we have said before, the question is not how

the arbitrator should have interpreted the agreement, but rather whether the arbitrator

interpreted the agreement. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm, of

Adjustment, Cent. Region v. Union Pac. R.R. Co., 522 F.3d 746, 757 (7th Cir. 2008) (citing

Hill v. Norfolk & W. Ry., 814 F.2d 1192,1195 (7th Cir. 1987)). An alleged

misinterpretation is still an interpretation. Id. Thus, Betts's argument is insufficient to

overturn the arbitral award.

Finally, Betts reprises her contention that the arbitration award violates public

policy. As the district court correctly noted, we have never opined whether an arbitral

award can be contested on public policy grounds. We need not do so today, either. In

her brief, Betts disowns the policy argument that she raised in the district court and

advances a new one. She argues that the public policy issue that the district court

should have considered "concerned domestic abuse and domestic violence." But, like

her contention about fraud, Betts forfeited this argument by not presenting it to the

district court. See Hronopoulos, 891 F.3d at 1073. In any event, this argument is about

events outside of the arbitration forum; therefore, it is not an argument that the

arbitrator's award itself violated public policy.

AFFIRMED

Q //

Case: 18-3336

Document: 31

Filed: 03/20/2019

Pages: 2

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse

Room 2722 - 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone: (312) 435-5850

www.ca7.uscourts.gov

ORDER

March 20, 2019

Before

DAVID F. HAMILTON, Circuit Judge

KATHLEEN BETTS,

Plaintiff - Appellant

No. 18-3336

v.

UNITED AIRLINES, INC.,

Defendant - Appellee

Originating Case Information:

District Court No: l:17-cv-02709

Northern District of Illinois, Eastern Division

District Judge Thomas M. Durkin

The following are before the court:

1.

NOTICE TO COURT CONCERNING FEBRUARY 13,2019 COURT ORDER,

APPELLANT'S NOTICE OF COMPLIANCE AS TO PROVIDING DOCUMENTS TO

JUDGE DURKIN, filed on March 18, 2019, by the pro se appellant.

2.

MOTION REQUESTING ADDITIONAL SUPPLEMENTATION OF THE RECORD:

I.E. SUPPLEMENT TO THE PROPOSED "SUPPLEMENT", filed March 18, 2019, by

the pro se appellant.

3.

MOTION FOR CLARIFICATION CONCERNING PLAINTIFF'S EEOC CLAIM

PERTAINING TO HOSTILE WORK ENVIRONMENT/ RETALIATION /

EMPLOYMENT DISCRIMINATION AND/OR THE ADA, filed March 18, 2019, by the

pro se appellant.

4.

NOTICE OF ERRATA, filed on March 18, 2019, by the pro se appellant.

4

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Case: 18-3336

Document: 31

Filed: 03/20/2019

No. 18-3336

Pages: 2

Page 2

IT IS ORDERED that the motions are GRANTED only to the extent that the court will extend

the deadline for the appellant to file her reply brief to April 12, 2019. Further extensions of the

deadline will not be granted.

IT IS FURTHER ORDERED that any other relief requested in the motions is DENIED. Before

moving to supplement the record on appeal, the appellant must file a formal motion to

supplement the record with the district court, accompanied by whatever documents she seeks

to add to the record, and await a ruling by that court. See 7th Circ. R. 10(b). The appellant is

cautioned that documents that were not part of the record before the district court when it

entered judgment cannot be added to the record on appeal. See Gallo v. Mayo Clinic Health

System-Franciscan Medical Center, Inc., 907 F.3d 961, 964 (7th Cir. 2018).

Important Scheduling Notice!

Hearing notices are mailed shortly before the date of oral argument. Criminal appeals are scheduled shortly after the filing of the

appellant’s main brief; civil appeals are scheduled after the filing of the appellee's brief. If you foresee that you will be unavailable

during a period in which your appeal might be scheduled, please write the clerk advising him of the time period and the reason for

your unavailability. The court's calendar is located at http://www.ca7.uscourts.gov/cal/argcalendar.pdf. Once an appeal has been

scheduled for oral argument, it is very difficult to have the date changed. See Cir. R. 34(e).

form name: c7_Order_3J(form ID: 177)

a O

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse

Room 2722 - 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone: (312)435-5850

wvrw.ca7.uscourts.gov

ORDER

February 13, 2019

Before

DAVID F. HAMILTON, Circuit Judge

KATHLEEN BETTS,

Plaintiff - Appellant

No. 18-3336

\

v.

UNITED AIRLINES, INC.,

Defendant - Appellee

Originating Case Information:

District Court No: l:17-cv-02709

Northern District of Illinois, Eastern Division

District Judge Thomas M. Durkin

i

Upon consideration of the LETTER, which the court construes as a motion to

supplement the record, filed on February 12, 2019, by the pro se appellant,

IT IS ORDERED that the motion is DENIED WITHOUT PREJUDICE. The

appellant must make her request with the district court in the first instance pursuant to

Circuit Rule 10(b). She may renew her request in this court if she is dissatisfied with the

district court's ruling, but she must attach a copy of the district court's ruling to any

renewed motion.

Case: l:17-cv-02709 Document #: 69 Filed: 04/10/19 Page 1 of 1 PagelD #:713

UIITED STATES DISTRICT COURT

FOR THE Iorthern District of Illinois - CM/ECF LIVE, Ver 6.2.2

Eastern Division

Kathleen Betts

Plaintiff,

v.

Case No.: l:17-cv-02709

Honorable Thomas M. Durkin

United Airlines, et al.

Defendant.

IOTIFICATIOI OF DOCKET EITRY

This docket entry was made by the Clerk on Wednesday, April 10, 2019:

MINUTE entry before the Honorable Thomas M. Durkin:Plaintiff s motion to

supplement the record [68] is denied. Plaintiff seeks to supplement the record with a

number of documents that were not before the Court during the summary judgment

proceedings. She states that their omission was due to negligence and malice on the part

of her appointed attorney, Mr. Michael Persoon. Unfortunately, that is not a sufficient

basis for correction of the record now. Rule 10(e) allows for correction or modification of

the record "[i]f any difference arises about whether the record truly discloses what

occurred in the district court[.]" Fed. R. App. P. 10(e)(1). "[T]he difference must be

submitted to and settled by [the district] court and the record conformed accordingly." Id.

This rule is meant to ensure that the record reflects what really happened in the district

court, but "not to enable the losing party to add new material to the record in order to

collaterally attack the trial court's judgment." United States v. ElizaldeAdame, 262 F.3d

637, 641 (7th Cir. 2001). In this case( the documents submitted by Plaintiff were neither

relied upon by the Court nor relevant to ifs'decision; they cannot be added to the record

pursuant to Rule 10(e). Mailed notice(srn,)-

ATTEITIOI: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of

Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was

generated by CM/ECF, the automated docketing system used to maintain the civil and

criminal dockets of this District. If a minute order or other document is enclosed, please

refer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our

web site at www.ilnd.uscourts.gov.

$ fie

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Case: l:17-cv-02709 Document#: 59 Filed: 10/29/18 Page 1 of 3 PagelD #:555

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTICT OF ILLINOIS

EASTERN DIVISION

FILED

0C7 HVgQtQ

KATHLEEN BETTS (PRO SE)

Plaintiff

v.

UNITED AIRLINES

No. 17 C 2709

Honorable Thomas M Durkin

Defendant

NOTICE OF APPEAL AND MOTION FOR EXTENSION

OF TIME TO REMIT ADDITIONAL INFORMATION

1. Plaintiff Kathleen Betts moves to appeal the September 28, 2018

summary judgment rendered in favor of United Airlines. The plaintiff

claims the Court erred on the merits of this case and was provided false

information by Court-appointed attorney Michael Persoon Esq.

2. Michael Persoon is a Chicago based attorney who specializes in

public policy. Persoon articulated an argument for Kathleen Betts

(plaintiff) that is false on its face. Without consulting the arbitration

transcript nor plaintiff Betts, Persoon stated falsehoods and transmitted

them to the Court.

His arguments concerning the “essence” of the October 5,2016

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App A

Case: l:17-cv-02709 Document #: 59 Filed: 10/29/18 Page 2 of 3 PagelD #:555

arbitration award and his “public policy” arguments were remitted to the

Court without the approval of the plaintiff. Furthermore, Persoon dropped

Airline Pilots Association as a party without the express approval of the

plaintiff.

Persoon nor the Court has even notified the plaintiff of the September 28,

2018 summary judgment ruling. Thus, the plaintiff believes she is entitled

to additional time to articulate her appeal on the merits.

Persoon argued that the arbitration board did not grasp the

“essence” of the arbitration award and they also ignored public policy .

However, he used arguments which were contrary to the testimony

available in the arbitration transcript and instead parroted information

discussed amongst himself and United attorney Mary Curry. Importantly,

Persoon hid information from a Oakland CA federal lawsuit involving

plaintiff Betts and United Airlines. The case was won on appeal in 2000,

then settled out of court.

3.

The plaintiff must hastily file this motion today (October 27, 2018)

because neither Persoon nor the Court notified the plaintiff of the

September 28,2018 judgment.

4. The plaintiff and Persoon have no attorney-client privilege as they

have never signed a representation agreement. The plaintiff argues that

Case: l:17-cv-02709 Document #: 59 Filed: 10/29/18 Page 3 of 3 PagelD #:555

Persoon is advocating a public policy argument that favors United Airlines’

interests instead of the plaintiffs interests. Persoon claims he was

“appointed by the Court” to represent the plaintiff. However, he is

apparently doing the opposite and is representing the defendant’s interests

instead.

5. The plaintiff will wait for further instructions from the Court. The

plaintiff has additional pertinent information concerning this case.

The information was given to the plaintiff on August 26, 2016- six weeks

after the arbitration hearing and six weeks before the arbitration ruling.

Persoon is aware of the evidence (which indicates fraud was committed as

well as possible fraud upon the Court). Persoon ignored the evidence which

is further proof that he was representing United’s interests.

The plaintiff claims that the Court’s September 28, 2018 ruling is based on

fabricated evidence given to the Court by Persoon; he specifically ignored

the evidence in the arbitration transcript.

Very respectfully,

Kathleen Betts (PRO SE)

Service will be provided to:

Mary Kathryn Curiy, United Headquarters, 544 Wackerman Drive, Chicago

IL 60604

And

Michael Persoon, 77 W Washington St, Chicago II60604

dtw

Case: l:17-cv-02709 Document#: 57 Filed: 09/28/18 Page 1 of 16 PagelD #:538

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Kathleen Betts,

)

)

)

)

)

)

)

)

)

Plaintiff,

v.

United Airlines,

Defendant.

No. 17 C 2709

Judge Thomas M. Durkin

MEMORANDUM OPINION & ORDER

Plaintiff Kathleen Betts sued defendant United Airlines under the Railway

Labor Act, 45 U.S.C. § 153 (First) (q) seeking to vacate a System Board of

Adjustment award that upheld her discharge from her job as a pilot with

Continental Airlines (which later merged with United). Currently before the Court

is United’s motion for summary judgment [51]. For the reasons explained below, the

Court grants United’s motion.

Background

Continental Arlines employed Betts as a pilot until her termination on April

16, 2008. R. 53 | 4 (Betts’s Response to United’s L.R. 56.1 Statement of Facts). After

Betts failed a “no notice” test for alcohol, Continental and Betts entered into a Last

Chance Agreement (“Agreement”) on March 12, 2008. Id. 1 5.

Paragraph 1 of the Agreement required Betts to complete a “course of

rehabilitation . . . recommended by [the airline’s Employment Assistance Program

(‘EAP’)].” Id. t1f 6-7. Paragraph 1 has four subsections, a through d. R. 51-2 at 411

QZO

Case: l:17-cv-02709 Document #: 57 Filed: 09/28/18 Page 2 of 16 PagelD #:538

42. Paragraph la obligated Betts to execute an undated letter of resignation that

could be used to terminate her if she “fail[ed] to satisfy any of the terms and

conditions” of “the rehabilitation directed by EAP or the terms and conditions of this

Agreement.” R. 53 ft 6, 8. Paragraph lb provided that as an “express condition for

her continuing employment,” “[f|or the remainder of her career with [the airline],

any use of alcohol or illicit drugs will be considered a violation of this Agreement.”

Id. f 9. Paragraph lb further stated that “BETTS expressly agrees that her use of

any non-prescription medication or other substance that contains alcohol . . . shall

be considered a violation of this Agreement and shall result in the termination of

BETTS’ employment.” R. 51-2 at 41. Paragraph lc required Betts to maintain

monthly contact with the EAP manager “[d]uring the rehabilitation/treatment

period.” Id. Paragraph Id provided for “a return-to-work drug and alcohol test” on

“release by EAP to return to work.” Id. at 42.

Paragraph 2 of the Agreement provided that “BETTS shall be reinstated to a

pilot position . . . upon satisfactory performance of her obligations under this

Agreement.” Id. Finally, paragraph 6 provided that Betts and her union “expressly

agree that any violation of the terms outlined above will be considered a violation of

the conditions of continued employment and that BETT’s employment will be

terminated as a result.” R. 53 f 10.

The same day Betts signed the Agreement, she also signed a Continental

Airlines Authorization and Release (“Release”) stating that she authorized the EAP

“to use, disclose and exchange . . . health information” with staff of Betts’s medical

2

Case: l:17-cv-02709 Document #: 57 Filed: 09/28/18 Page 3 of 16 PagelD #:538

care provider including “information related to Attendance, Assessment, Diagnosis,

Recommendations, Treatment/Aftercare Plan, Progress Notes, Medical/ Psychiatric/

Psychological and Chemical Dependency Notes/ Documentation (including lab

work).” Id. If 11; R. 51-2 at 164. The parties dispute whether this authorization

satisfied

Health

Insurance

Portability

and

Accountability Act

(“HIPAA”)

requirements and whether it authorized Betts’s medical care provider to disclose

Betts’s treatment information to United. R. 56 If 6 (United’s Response to Betts’s

L.R. 56.1 Statement of Additional Facts).

On March 15, 2008, Betts was admitted to her medical care provider for

treatment. R. 53 If 12. While in treatment, on April 3, 2008, Betts signed a

Continental

Airlines

EAP

Statement

of

Confidentiality

(“Confidentiality

Statement”) providing that information obtained from the EAP would be “held in

confidence with . . . exceptions,” including “(4) Management Referrals, SAP, and or

Fitness-For Duty Evaluation — be advised information will be given to Management;

(5) For co-ordination of on-going referral, communication will occur between the

EAP staff and the managed mental health care company.” Id. 1 13; R. 51-2 at 160.

As with the Release, the parties dispute whether this Confidentiality Statement

satisfied HIPPA or authorized the medical care provider to disclose Betts’s

treatment information to United. R. 56 f 5.

Betts continued treatment at the medical care provider until April 11, 2008,

when she left on a pass to go home. R. 53 f 14. Betts returned to the medical care

provider late on April 15, 2008, and a breath analysis tested positive for alcohol. Id.

3

Case: l:17-cv-02709 Document #: 57 Filed: 09/28/18 Page 4 of 16 PagelD #:538

T( 15. The medical care provider told Betts that the EAP had been contacted and

that “drinking would change her options.” Id. f 16. On a conference call with the

EAP and the medical care provider, Betts “admitted and informed the EAP and

chief pilot of her situation,” and “owned up to drinking three glasses of wine on

Sunday, Monday and Tuesday morning before her return to the [medical care

provider].” Id. t 17.

Betts failed to attend a meeting scheduled for April 16, 2008 with

Continental to discuss treatment options. Id. t 19. That day, Continental '

terminated Betts for violating the Last Chance Agreement. Id.

20. Betts requested

an appeal of the termination decision on May 2, 2008. Id. ][ 22. Betts’s grievance

was not resolved prior to Continental’s merger with United in 2010. Id.

23.

A collective bargaining agreement between Betts’s union and United

provided for arbitration of Betts’s grievance. Id. If 26. The union declined to

prosecute Betts’s grievance on her behalf. Id. t 27. Betts therefore proceeded pro se

at a July 2016 arbitration hearing before a three-member System Board of

Adjustment (“Board”). Id. ]Hf 27-28. The Board denied Betts’s grievance in October

2016, finding that the airline had just cause to terminate Betts after she failed the

breathalyzer test in April 2008. Id. f 29. The Board’s award states:

a majority of the Board finds that [Betts] violated the [Agreement]

when she tested positive for alcohol within one month of signing the

[Agreement] and while still participating in the in-patient treatment

program at [the medical care provider], even if she was awaiting

admission to a halfway house. Thus, [Betts’s] termination was

pursuant to paragraphs 1 and la of the [Agreement], as quoted above.

4

Case: l:17-cv-02709 Document#: 57 Filed: 09/28/18 Page 5 of 16 PagelD #:538

Id. f 30. The Board explained that the Last Chance Agreement forbid Betts “from

using any alcohol, for the duration of her employment,” and that the airline

“received a business record from [the medical care provider], i.e., a report of a drug

screen and breathalyzer test of [Betts], and the [airline] reasonably relied thereon.”

Id. f 31. The Board explained that its finding would not

change even if [Betts] was, as she alleges, in the process of

transitioning from an in-patient treatment program at the [medical

care provider] to a halfway house. The entirety of the in-patient

treatment plan, any transition to a halfway house and any after care

prescribed for [Betts] are all under the auspices of the EAP and,

therefore, covered by the [Last Chance Agreement].

Id. f 32.

Betts sued the Airline Pilots Association in April 2017. R. 1. After this Court

appointed counsel, Betts filed an amended complaint dismissing the Airline Pilots

Association and naming United instead. R. 45. The amended complaint makes two

claims: (1) Count I alleging that the Board award fails to “draw its essence” from

Betts’s Last Chance Agreement; and (2) Count II alleging that the Board award

violates public policy. R. 45. In January 2018, United moved for summary judgment

on both counts. R. 51.

Standard

Summary judgment is appropriate “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); see also Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986). The Court considers the entire evidentiary record and must view all

of the evidence and draw all reasonable inferences from that evidence in the light

5

Ot ZU

Case: l:17-cv-02709 Document#: 57 Filed: 09/28/18 Page 6 of 16 PagelD #:538

most favorable to the nonmovant. Horton u. Pobjecky, 883 F.3d 941, 948 (7th Cir.

2018). To defeat summary judgment, a nonmovant must produce more than a “mere

scintilla of evidence” and come forward with “specific facts showing that there is a

genuine issue for trial.” Johnson v. Advocate Health and Hosps. Corp., 892 F.3d 887,

894, 896 (7th Cir. 2018). Ultimately, summary judgment is warranted only if a

reasonable jury could not return a verdict for the nonmovant. Anderson v. Liberty

Lobby, Inc., All U.S. 242, 248 (1986).

Analysis

This case arises under the Railway Labor Act, 45 U.S.C. § 153 First (q),

“which establishes a framework for the efficient resolution of labor disputes within

the transportation sector.” Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 839

(7th Cir. 1999). “In keeping with the purpose of that framework, and with the

statute itself, which permits federal courts to intervene only in limited

circumstances, judicial review of a board of arbitrators’ decision is ‘among the

narrowest known to law.’” Id. (quoting Union Pacific R.R. Co. v. Sheehan, 439 U.S.

89, 91 (1978)).

“Generally speaking, a federal court has jurisdiction to review the Board’s

decision only when it is asserted that (1) the Board failed to comply with the

requirements of the Railway Labor Act; (2) the Board failed to confine itself to

matters within its own jurisdiction; or (3) the Board or one of its members engaged

in fraud or corruption.” Id. (citing Sheehan, 439 U.S. at 91). Count I—which argues

that the Board’s decision failed to “draw its essence” from the Last Chance

6

Case: l:17-cv-02709 Document #: 57 Filed: 09/28/18 Page 7 of 16 PagelD #:538

Agreement—falls within the second category. E.g., Office & Prof’l Employees Int’l

Union Local 109 v. Air Methods Corp., 2010 WL 3700024, at *5 (E.D. Wis. Sept. 14,

2010). Count II—alleging a violation of public policy—does not fall within any of the

three categories. But Betts urges this Court to join a number of courts of appeals in

holding that in addition to the three categories, RLA arbitration awards are subject

to public policy review. E.g., Union Pacific R.R. Co. v. United Transp. Union, 3 F.3d

255, 259-60 (8th Cir. 1993).

I.

Count I: Award Drawing Essence From Last Chance Agreement

“The Board’s jurisdiction ‘is limited exclusively to the interpretation or

application of existing agreements’: therefore, the [challenged] decision must get its

essence from the [Last Chance Agreement].” Office & Prof’l Employees, 2010 WL

3700024, at *5 (quoting Wilson v. Chicago & N. W. Transp. Co., 728 F.2d 963, 967

(7th Cir. 1984)). Betts maintains in Count I that the Board’s award did not “draw

its essence” from the Last Chance Agreement because the Agreement prohibited

alcohol consumption only during the remainder of Betts’s “career,” and the Board

affirmed termination of Betts for alcohol consumption outside of her “career.” R. 54

at 3-6. Betts relies on Paragraph lb of the Agreement, which provided as an

“express condition for her continuing employment” that “[f]or the remainder of her

career with [the airline], any use of alcohol or illicit drugs will be considered a

violation of this Agreement.” R. 53 f 9. Betts argues that because the Agreement

provides for a “treatment period” followed by “release by EAP to return to work” and

“reinstate [ment] to a pilot position,” the treatment period was not part of Betts’s

7

Q-7.C

Case: l:17-cv-02709 Document #: 57 Filed: 09/28/18 Page 8 of 16 PagelD #:538

“career.” R. 54 at 4-5. Betts therefore argues that consuming alcohol during the

treatment period did not violate the Agreement.

Betts’s argument fails at the outset because it asks the Court to decide

whether the Board properly interpreted the Agreement. See R. 54 at 1 (Betts argues

that the Board “made an untenable interpretation” of the Agreement). The sole

question for the Court is whether the Board interpreted the Agreement at all or

disregarded it. See, e.g., Lyons v. Norfolk & W. Ry. Co., 163 F.3d 466, 469 (7th Cir.

1999) (a party can complain if “the arbitrators don’t interpret the contract” or

“disregard the contract”). Whether the Board misinterpreted the Agreement is not

within the scope of this Court’s review. The Seventh Circuit spelled this out in no

uncertain terms in Lyons:

[A]s we have said too many times to want to repeat again, the question

for a federal court asked to set aside an arbitration award ... is not

whether the arbitrator erred in interpreting the contract; it is not

whether they clearly erred in interpreting the contract; it is not

whether they grossly erred in interpreting the contract; it is whether

they interpreted the contract. If they did, their interpretation is

conclusive.

Id. at 470.

There is no question in this case that the Board interpreted the Agreement.

The Board specifically found a violation of “paragraphs 1 and la” of the Agreement,

including the provision in paragraph 1 forbidding Betts “from using any alcohol, for

the duration of her employment.” R. 53 fU 30-31.1 Not only that, but the Board

i

The Board mentioned paragraphs 1 and la, and not lb specifically. But

paragraph lb is part of paragraph 1, and the Board referred directly to paragraph

lb’s provisions prohibiting alcohol use.

8

Ou'Ll,

Case: l:17-cv-02709 Document #: 57 Filed: 09/28/18 Page 9 of 16 PagelD #:538

expressly addressed and rejected Betts’s argument that her consumption should not

count because it occurred during her treatment period, explaining that “[t]he

entirety of the in-patient treatment plan, any transition to a halfway house and any

after care prescribed” are all “under the auspices of the EAP, and therefore, covered

by the [Last Chance Agreement].” Id. f 32; see also R. 54 at 4 (Betts acknowledges

that the Board “facially engaged with the language of the ‘remainder of her career’

clause”). The fact that the Board interpreted the Agreement ends the inquiry. It is

not for this Court to say whether the Board’s interpretation was correct. See, e.g.,

Lyons, 163 F.3d at 470 (where Board found that it was not unjust for employer to

fire plaintiff for failing to provide a urine sample when ordered to do so, the Board

“was interpreting the contractual term ‘unjust,’” and because the Board “interpreted

the contract, its interpretation is conclusive”).

Nor is this a case, as Betts claims, where the Board did not “say [its] award is

noncontractual,” but there is no “possible interpretive route to the award.” See

Chicago Typographical Union No. 16 v. Chicago Sun-Times, Inc., 935 F.2d 1501,

1506 (7th Cir. 1991) (holding that even where interpretive route is not spelled out or

there is an “error in interpretation,” the award stands as long as there is a “possible

interpretive route to the award”). The Board found Betts’s treatment period to be

“under the auspices of the EAP.” R. 53 1 32. This conclusion is supported by

Paragraph l’s prefatory language, which provides for “rehabilitation/treatment . . .

directed and facilitated by EAP” and a “course of rehabilitation . . . recommended by

the EAP,” followed by subparagraphs a through d laying out specific terms of that

9

Ou'LY

Case: l:17-cv-02709 Document#: 57 Filed: 09/28/18 Page 10 of 16 PagelD #:538

course of rehabilitation. R. 51-2 at 41

1). The Board found that Betts failed to

satisfy the EAP requirements when she violated the provisions in f lb proscribing

use of alcohol (which, notably, contains no carveout for the treatment period). Id. (1

lb) (no alcohol “[f]or the remainder of [Betts’s] career”); see also id. (“BETTS

expressly agrees that her use of . . . alcohol. . . shall be considered a violation of this

Agreement and will result in termination of BETTS’s employment.”); id. at 43 (f la)

(failure to satisfy any terms and conditions of “the rehabilitation directed by EAP”

will result in termination). Paragraph lb makes lack of alcohol use “[f]or the

remainder of her career” an “express condition of [Betts’s] continuing employment”

(id. (U lb) (emphasis added)), which further supports the interpretation that Betts’s

“career” persisted during her treatment period. Indeed, Betts’s employment with

the airline did not end until after her violation of the Last Chance Agreement. R. 53

If 4. There was no “willful disregard of the contract” here, Chicago Typographical,

935 F.2d at 1506—far from it. The Court therefore grants United’s motion for

summary judgment on Count I.

II.

Count II: Public Policy

United argues as a threshold matter that the RLA does not allow for public

policy review of arbitration awards. The Supreme Court denied a petition for writ of

certiorari to address this issue in 2014. Air Methods Corp. u. Office & Prof’l

Employees Int’l Union, 134 S. Ct. 2295 (2014). United relies on older district'court

cases finding no public policy review permitted under the RLA (including a case in

this district), all of which emphasize the strictness of the Supreme Court’s language

10

Ct^ 'Z' 9

Case: l:17-cv-02709 Document#: 57 Filed: 09/28/18 Page 11 of 16 PagelD#:538

delineating the three categories of review in Sheehan. See Bhd. of R.R. Signalmen v.

Union Pac. R.R. Co., 1997 WL 80956, at *2 (N.D. Ill. Feb. 21, 1997); Denver & Rio

Grande W. Ry. Co., 963 F. Supp. 946, 948-49 (D. Colo. 1997); NetJets Aviation, Inc.

v. Int’l Bhd. of Teamsters, 2006 WL 1580216, *6 (S.D. Ohio June 2, 2006). But these

district court decisions have not been adopted by the courts of appeals that have

addressed the issue, which instead have either found public policy review available

or declined to decide the issue. See, e.g., United Transp. Union, 3 F.3d at 258 (public

policy review available under the RLA); Delta Air Lines, Inc. v. Air Line Pilots

Ass’n, 861 F.2d 665, 674 (11th Cir. 1988) (same); Nat’l R.R. Passenger Corp. v.

Fraternal Order of Police, Lodge 189 Labor Comm., 855 F.3d 335, 338 (D.C. Cir.

2017), cert, denied, 138 S. Ct. 979 (2018) (same); Air Methods Corp. v. OPEIU, 737

F.3d 660, 669 (10th Cir. 2013) (“we do not need to decide this issue because we hold

that the arbitrator’s award in this case did not violate public policy”); NetJets

Aviation, Inc. v. Int’l Bhd. of Teamsters, Airline Div., 486 F.3d 935, 939 (6th Cir.

2007) (“assuming” without deciding “that public policy review is permitted under

the RLA”).

The Seventh Circuit has not decided whether public policy review is available

for Board awards under the RLA. But at least one court in this district has found

such review available based on the Seventh Circuit’s decision in Chrysler Motors

Corp. v. Int’l Union, Allied Indus. Workers of Am., AFL-CIO, 959 F.2d 685, 687 (7th

Cir. 1992), and the Supreme Court’s decision in W.R. Grace & Co. v. Local Union

759, Int’l Union of United Rubber, 461 U.S. 757, 766 (1983), reviewing arbitrators’

11

ct 3 o

Case: l:17-cv-02709 Document #: 57 Filed: 09/28/18 Page 12 of 16 PagelD #:538

interpretations of collective bargaining agreements outside the RLA-context for

violations of public policy. See Held v. Am. Airlines, Inc., 2007 WL 433107, at *7

(N.D. Ill. Jan. 31, 2007).

Although it appears likely the Seventh Circuit would recognize public policy

review of an award by the Board under the RLA, this Court finds it unnecessary to

decide the issue. Even assuming authority to do so, the Court would not vacate the

arbitration award here on public policy grounds. “For an arbitration award to

violate public policy, the policy involved must be an explicit public policy that is well

defined and dominant, and is . . . ascertained by reference to the laws and legal

precedents and not from general considerations of supposed public interest.” Air

Methods, 737 F.3d at 669; accord Chrysler, 959 F.2d at 687. The public policy

rationale for refusing to enforce an arbitration award is “a limited exception” in

which the Court “ask[s] only whether the award itself . . . , and not the underlying

reasons for the award, violatejs] public policy.” Air Methods, 737 F.3d at 669.

Courts have vacated arbitration awards under the RLA on public policy

grounds to correct situations that are the exact opposite of this case—i.e., where a

pilot or a train operator was reinstated despite using drugs or alcohol instead of

terminated for using drugs or alcohol. In United Transp. Union, for example, the

Eighth Circuit found that an award reinstating a train brakeman despite evidence

indicating that he caused a train accident while using alcohol and drugs violated “a

well-defined and dominant public policy against a railroad’s employment of

individuals whose impaired judgment due to the use of drugs or alcohol could

12

Qr 3 ‘

Case: l:17-cv-02709 Document#: 57 Filed: 09/28/18 Page 13 of 16 PagelD #:538

serious threaten public safety.” 3 F.3d at 261-62. The Eleventh Circuit in Delta Air

Lines held similarly in the context of a pilot who “flew an airplane while drunk” and

was reinstated. 861 F.2d at 674. Betts cites no case vacating an award on public

policy grounds in circumstances like hers.

Betts nevertheless claims that it would violate public policy for this Court to

enforce the Board’s award because it “was based on evidence gained in violation of

public policy.” R. 54 at 1. Specifically, Betts argues that her breathalyzer test

results never should have been disclosed by the provider to the airline. Id. at 2.

The Court rejects this argument for two reasons. First, Betts’s argument does

not concern the “award itself.” Air Methods, 737 F.3d at 669. Betts’s argument

instead focuses on the underlying process pursuant to which the EAP gained its

evidence. “In considering whether to refuse to enforce an arbitration award based

on public policy, the question for the court is not whether any underlying actions by

the parties violated public policy, but whether the specific actions ordered by the

award do so.” Bhd. of Locomotive Engineers & Trainmen v. Union Pac. R. Co., 882

F. Supp. 2d 1032, 1040 (N.D. Ill. 2012), aff’d sub nom. Bhd. of Locomotive Engineers

& Trainmen, Gen. Comm, of Adjustment, Cent. Conference v. Union Pac. R. Co., 719

F.3d 801 (7th Cir. 2013). Because Betts’s argument is not about a violation of public

policy in the specific actions ordered by the Board, but instead concerns “underlying

actions by the parties,” it necessarily fails. See id.

Second, even looking beyond the award itself to the parties’ underlying

actions, Betts’s argument still fails. Betts cites the patient-psychotherapist privilege

13

32-

Case: l:17-cv-02709 Document #: 57 Filed: 09/28/18 Page 14 of 16 PagelD #:538

recognized in Fed. R. Evid. 501 and case law interpreting it, which recognize the

policy import of confidentiality when persons are treated for addictions including

alcoholism. R. 54 at 8-9. The problem with this argument is that Betts affirmatively

waived confidentiality when she voluntarily signed the Release and again when she

signed the Confidentiality Statement with its exception for communications

between the medical care provider and the EAP. Betts also willingly signed the Last

Chance Agreement requiring her to complete the course of rehabilitation

recommended by the EAP, including refraining from using alcohol. As United points

out, communication had to occur between the medical care provider and the EAP in

order for the EAP to ensure compliance with the course of rehabilitation.

Betts interprets the Release and Confidentiality Statement as a one-way

street, allowing the EAP and the airline to give information to the provider but not

vice versa. This argument is contrary to the plain language of these documents. The

Release authorized an “exchange” of information between the provider and the EAP,

including related to “Assessment, Diagnosis . . . Medical/Psychiatric/Psychlogical

and Chemical Dependency Notes/Documentation (including lab work).” R. 51-2 at

164. The Statement likewise made clear that “communication will occur between

the EAP staff and the managed mental health care company.” R. 51-2 at 160. And

this makes good sense. The whole point of a last chance agreement is to know if an

employee forfeits her last chance. If a release corresponding with a last chance

agreement permitted one-way communication only, there would be no way for the

employer learn about a violation from a medical service provider.

14

Oil,

Case: l:17-cv-02709 Document#: 57 Filed: 09/28/18 Page 15 of 16 PagelD #:538

Betts also argues that the Release does not comply with HIPAA because it

contains no expiration date, and that the Confidentiality Statement does not

comport with HIPAA requirements to use plain language for waivers. This is not an

objection Betts raised below, and it was not a subject of the Board’s review. The

Court declines to delve into the weeds of reviewing the Release and Confidentiality

Statement for HIPAA compliance when Betts has not identified an “explicit public

policy” that the Board’s award itself violates. See Air Methods, 737 F.3d at 669; see

also United Transp. Union, 3 F.3d at 261 (when determining whether award

violates “an explicit public policy,” the Court must “carefully observfe] the [RLA’s]

proscription against judicial factfinding”).

Additionally, separate and apart from the information provided from the

provider pursuant to the Release and Confidentiality Statement that Betts says do

not comply with HIPAA, Betts admitted to drinking alcohol on a conference call

with the EAP. R. 53 If 17. Betts takes issue with this fact being part of the

administrative record, saying that but for the information provided by the provider

to the airline about her breathalyzer result, Betts never would have made this

admission. This speculation, even if true, does not show that Betts’s admission was

not properly made part of the administrative record.

In sum, there is no public policy basis for vacating the Board’s award. The

Court grants United’s motion for summary judgment on Count II.

15

Case: l:17-cv-02709 Document #: 57 Filed: 09/28/18 Page 16 of 16 PagelD #:538

Conclusion

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

judgment [51].

ENTERED:

<==j$itn(U&0

Honorable Thomas M. Durkin

United States District Judge

Dated: September 28, 2018

16

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Case: l:17-cv-02709 Document#: 41 Filed: 07/27/17 Page 1 of 1 PagelD #:269

UIITED STATES DISTRICT COURT

FOR THE Iorthern District of Illinois - CM/ECF LIVE, Ver 6.1.1.2

Eastern Division

Kathleen Betts

Plaintiff,

v.

Case No.: l:17-cv-02709

Honorable Thomas M. Durkin

Airline Pilots Association, et al.

Defendant.

IOTIFICATIOI OF DOCKET EITRY

This docket entry was made by the Clerk on Thursday, July 27, 2017:

MINUTE entry before the Honorable Thomas M. Durkin:Defendants' motions to

dismiss [18] [34] are entered and continued generally. Plaintiffs motion for extension of

time [27] is denied as moot. Motion hearing held on 7/27/2017. Plaintiff is granted leave

to file an amended complaint by 8/25/2017. Defendants are to answer or otherwise plead

21 days after receipt of the amended complaint. If any motions to dismiss are filed,

counsel are directed to notice them up for presentment. Discovery is stayed. Mailed

notice(sm,)

ATTEITIOI: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of

Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was

generated by CM/ECF, the automated docketing system used to maintain the civil and

criminal dockets of this District. If a minute order or other document is enclosed, please

refer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our

web site at www.ilnd.uscourts.gov.

-

S'<x)

0137

App M

Case: l:17-cv-02709 Document#: 38-4 Filed: 07/20/17 Page 17 of 17 PagelD #:244

16

AWARD

The grievance is denied.

Kathleen Betts violated the

terms of her Last Chance Agreement dated March 12, 2008 when she

failed a breathalyzer test on April 15, 2008

Accordingly, the

Company had just cause to terminate her employment.

October

51 2016

Neutral Chairperson

1r

App Ki

Case: l:17-cv-02709 Document#: 32 Filed: 07/10/17 Page 1 of 1 PagelD#:166

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

Kathleen Betts

v.

Airline Pilots Association,

et al

)

)

)

)

)

)

Case No: 17 C 2709

Judge: Thomas M. Durkin

)

)

ORDER

Plaintiffs motion for attorney representation is granted. [15] This Court hereby recruits attorney

Michael Persoon, Despres, Schwartz, and Geoghegan, Ltd., 77 W. Washington, Ste. 711,

Chicago, IL 60602, 312-372-2511, mpersoon@dsgchicago.com to assist plaintiff in this action.

Date: 7/10/2017

/s/ Thomas M. Durkin

dl><\

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Case: l:17-cv-02709 Document#: 1 Filed: 04/10/17 Page 1 of 6 PagelD#:1

*

(If you need additional space for ANY section, please attach an additional sheet and reference that section.]

RECEIVED

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

APR 10 2017^)

THOMAS G. BRUTON

CLERK. U.S. DISTRICT COURT

)

)

CIVIL ACTION

(Name of the plaintiff or plaintiffs)

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)

)

)

)

Ascr-of i cdKoto

1:17-cv-2709

Judge Thomas M. Durkin

Magistrate Judge Susan E. Cox

)

)

(Name of the defendant or defendants)

)

COMPLAINT OF EMPLOYMENT DISCRIMINATION

1. This is an action for employment discrimination.

2. The plaintiffis

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(county)__________(state)._________ (ZIP code)_

pf you need addiGonal space for ANY section, please attach an additional sheet and reference that section.]

CcS-f Cs

1

hop f

Case: l:17-cv-02709 Document #: 1 Filed: 04/10/17 Page 2 of 6 PagelD #:1

»

[If you need additional space for ANY section, please attach an additional sheet and reference that section.]

5. The plaintiff [check one box]

(a) [~|

was denied employment by the defendant.

(b) dj

was hired and is still employed by the defendant.

(c) E

was employed but is no longer employed by the defendant.

6. The defendant discriminated against the plaintiff on or about, or beginning on or about,

(month) fOr^T

, (day) 8 j, (year) 20!L> ■

arbrbvcficfv-\ decisis \acuJU,cL ■+*>

flu

/•i—(Choose paragraph 7.1 or 7*2. do not complete both.)

(a) The defendant is not a federal governmental agency, and the plaintiff [check

a

[3 has.

filed a charge or charges against the defendant

has

asserting the acts of discrimination indicated in this complaint with any of the following

government agencies:

one box]

(i)

GZT the United States Equal Employment Opportunity Commission,

(month)

(ii)

(day).

on or about

(year)________ .

13 the Illinois Department of Human Rights, on or about

(month).

(year)

(day).

(b) If charges were filed with an agency indicated above, a copy of the charge is

attached.

Q YES.

PTnO. but plaintiff will file a copy of the charge within 14 days.

It is the policy of both the Equal Employment Opportunity Commission and the Illinois

Department of Human Rights to cross-file with the other agency all charges received. The

plaintiff has no reason to believe that this policy was not followed in this case.

7.2

The defendant is a federal governmental agency, and

(a) the plaintiff previously filed a Complaint of Employment Discrimination with the

defendant asserting the acts of discrimination indicated in this court complaint.

2

pf you need additional space for ANY section, please attach an additional sheet and reference that section.]

Case: l:17-cv-02709 Document #: 1 Filed: 04/10/17 Page 3 of 6 PagelD #:1

Pf y™ need MdMonM

□

Ef

a, AMr secBon. ptoase attM, „ aadlOmal shaet

#,« sectron.j

Yes (month)

(day)

(year)___

No, did not file Complaint of Employment Discrimination

JAupU^j-4^.

(D)

The plaintiff received a Final Agency Decision on (month)

(day)

(year)

(c)

Attached is a copy of the

(i) Complaint of Employment Discrimination,

□

YES

n

NO, but a copy will be filed within 14 days.

(ii) Final Agency Decision

CH yes

8.

OnNO, but a copy will be filed within 14 days.

(Complete paragraph 8 only ifdefendant is not afederal governmental agency)

(a)0" the United States Equal Employment Opportunity Commission has

not issued

a Notice ofRight to Sue.

(b)D

the United States Equal Employment Opportunity Commission has issued a

Notice ofRight to Sue, which was received by the plaintiff on

(month).

(day)____

(year).

a copy of which

Notice is attached to this complaint

9.

The defendant discriminated against the plaintiffbecause oftheplaintiffs [check only

those that apply]:

(a)HTAge (Age Discrimination Employment Act).

Color (Title VII of the Civil Rights Actof 1964and42U.S.C. §1981).

3

Df you need additional space for ANY section, please attach

an additional sheet and reference that section.]

Case: l:17-cv-02709 Document#: 1 Filed: 04/10/17 Page 4 of 6 PagelD #:1

Of you need additional space for ANY section, please attach an additional sheet and reference that section.]

(OaDisability (Americans with Disabilities Act

or Rehabilitation Act)

(d)D National Origin (Title VII of the Civil Rights Act of 1964 and 42 U.S.C

- §1981).

(e)Q Race (Title VII of the Civil Rights Act of 1964 and 42 U.S.C. §1981).

(f) □ Religion (Title VII of the Civil Rights Act of 1964)

(g) 0 Sex (Title VII of the Civil Rights Act of 1964)

10.

If the defendant is a state, county, municipal (city, town or village) or other local

governmental agency, plaintiff further alleges discrimination on the basis of race, color,

or national origin (42 U.S.C. § 1983).

11.

Jurisdiction over the statutory violation alleged is conferred as follows: for Title VII

claims by 28 U.S.C.§1331,28 U.S.C.§ 1343(a)(3), and 42 U.S.C.§2000e-5(f)(3); for

42 U.S.C.§1981 and §1983 by 42 U.S.C.§1988; for the A.D.EA.. by 42 U.S.C.§12117;

for the Rehabilitation Act, 29 U.S.C. § 791.

12.

The defendant [check only those that apply]

(all yj

failed to hire the plaintiff.

(b) GK terminated the plaintiff’s employment.

(c) 0

failed to promote the plaintiff.

(d)D

failed to reasonably accommodate the plaintiffs religion.

(e) 13

failed to reasonably accommodate the plaintiffs disabilities.

(g) EZf

failed to stop harassment;

retaliated against the plaintiff because the plaintiff did something to assert

(h)CZ3

rights protected by the laws identified in paragraphs 9 and 10 above;

other (specify): P

Kcib

A. jpyiC

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"(W f/llSOftAWVUiof*

O or

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fa.C&Vcd'

4

[If you need additional space for ANY section, please attach an additional sheet and reference that section.]

Case: l:17-cv-02709 Document #: 1 Filed: 04/10/17 Page 5 of 6 PagelD #:1

[If you need additional space for ANY section, please attach an additional sheet and reference that section.]

—fLtL

13.

LOfla..pAcLUrfr

figc- 5 pe c i

S

The facts supporting the plaintiffs claim of discrimination are as follows:

fJLoaa-

(hjL

14.

[AGEDISCRIMINATION ONLY] Defendant knowingly, intentionally, and willfully

discriminated against the plaintiff.

15.

The plaintiff demands that the case be tried by a jury. [^TyES

16.

|

| NO

THEREFORE, the plaintiff asks that the court grant the following relief to the plaintiff

[check only those that apply]

(a) 1-" '1

Direct the defendant to hire the plaintiff

(b) 0

Direct the defendant to re-employ the plaintiff.

(c) [~[

Direct the defendant to promote the plaintiff.

(d){~|

Direct the defendant to reasonably accommodate the plaintiff’s religion.

(e)0

Direct the defendant to reasonably accommodate the plaintiff’s disabilities.

(f) I -f

Direct the defendant to (specify):

isQAft p MO

up >Vc

pr,j\ ik4i i/r.

Cutoi’k'

/cw -

5

[If you need additional space for ANY section, please attach an additional sheet and reference that section.]

Case: l:17-cv-02709 Document #: 1 Filed: 04/10/17 Page 6 of 6 PagelD #:1

{If you need additional space for ANY section, please attach an additional sheet and reference that section.]

(g)t2f

If availably grant the plaintiff appropriate injunctive relief, lost wages,

liquidated/double damages, front pay, compensatory damages, punitive damages,

prejudgment interest, post-judgment interest, and costs, including reasonable

attorney fees and expert witness fees.

coEf Giant such other relief as the Court may find appropriate.

(Plaintiff’s signature)

(Plaintiffs name)

(Plaintiffs street address) i

^ -frfiAficki,

'P£-AHU)T\

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L

bu>+

■S>AOjj<_A-

___________ ___

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of

(City)__________________ (State)______

(ZIP)

(Plaintiff s telephone number)

4*

zf~l

Date:

A&iu f

6

[If you need additional space for ANY section, please attach an additional sheet and reference that section.]

$r

Case: l:17-cv-02709 Document #: 8 Filed: 04/10/17 Page 1 of 10 PagelD #:21

IN THE UNITED STATES DISTRICT COURT FOR THE NOR

THE“REra\/ED

ILLINOIS

APR 10 2017 f*)

KATHLEEN BETTS/PLAINTlFF/pro se

vs

THOMAS G. BRUTON

CLERK. U.S. DISTRICT COURT

Arbitration #2016-0-171-036

NDIL No: 'TftA______

AIRLINE PILOTS ASSOCIATION (ALPA)

and UNITED AIRLINES /DEFENDANTS

1:17-cv-2709

Judge Thomas M. Durkin

Magistrate Judge Susan E. Cox

corn Pu/\ t ai-T

PLAINTIFF’S REQUEST TO VACATE ARBITRATION DECISION

DATED OCTOBER 5,2016 DUE TO ALPA’S BREACH OF

REPRESENTION AND UNITED AIRLINES UPHOLDING PLAINTIFF’S

TERMINATION OF EMPLOYMENT

(HYBRID 301 ACTION)

PLAINTIFF’S REQUEST TO VACATE ARBITRATION DECISION

DUE TO ARBITRATOR’S EXCEEDANCE OF SCOPE

1 .COMES NOW THE PLAINTIFF requesting this Honorable Court to review anrf reverse

United Airlines’ decision to uphold plaintiff’s termination and to review transcripts from the

arbitration (and associated documents) to determine if ALPA committed a breach of duty to

fairly represent the plaintiff The plaintiff asks this Court in a separate request to determine if

upholding the termination of die plaintiff was proper as the plaintiff claims the arbitrator

violated the scope provisions of plaintiff’s working agreement during the arbitration hearing and

relied on said information in making her arbitration decision. The plaintiff claim*; that this

Court has jurisdiction and the venue is appropriate as Chicago is the headquarters of United

1

Case: l:17-cv-02709 Document#: 8 Filed: 04/10/17 Page 2 of 10 PagelD #:21

Airlines and also the city where arbitration was held.

BACKGROUND

2. The plaintiff worked for almost twenty years as a pilot, holding several different employment

positions during that course of time (1987-2007). Plaintiff was a pilot in the United States Navy

until 1995. Plaintiff holds an Airline Transport Pilot rating with three type ratings allowing her

to operate commercial jetliners. In 1996 she was hired by United Airlines. Six months after she

began her employment at United she was wrongfully terminated by her supervisor. Plaintiff

brought legal action against United in 1997 in Oakland, California. Plaintiff ultimately prevailed

in the legal action. Betts vs United Airlines, 246 F.3d 672 (9th Circuit, 2000). ALPA did not

represent the plaintiff in that legal action, stating that plaintiff could not prevail. The

evidence presented to the jury indicated that representatives from United Airlines altered

plaintiff s flight grades and published them to a third party in August and/or September 1996.

After an eleven day jury trial, the jury agreed that United had committed defamation against the

plaintiff and awarded her compensatory damages

3. In 1998 plaintiff began work as a Federal Aviation Administration Operations Inspector at the

Houston, Texas Flight Standards District Office. Plaintiff* s duties were to monitor and report

on Continental Airlines’ adherence to FAA rules and regulations. From 2000-2002 die Plaintiff

flew 737’s at US Air. After 9-11, the plaintiffs employment was disrupted again; she then took

a position as a paid contract consultant at ALPA in 2003. Plaintiff was eventually recalled to US

Air. Plaintiff worked at US Air until March 2006. Plaintiff then joined Continental Airlines

where she flew 737 glass cockpit aircraft until June 2007 (B737-700, 800, and 900 models).

4. By June 2007 the plaintiff was having severe marital problems with her then-husband of 18

years, who had called in sick to his pilot employer in 2005 with what he claimed was

was “severe depression”. The former husband stayed on disability leave until January 2009 due

to his mental health issues. The former husband resumed flying duties in January 2009. Plaintiff

claims her former husband assaulted her in their home on June 3,2007. Plaintiff underwent a

knee operation and physical therapy due to her inj uries caused by the former husband. Plaintiff

began reporting the domestic violence committed against her to Continental in 2006.

2

Case: l:17-cv-02709 Document #: 8 Filed: 04/10/17 Page 3 of 10 PagelD #:21

{Plaintiff was placed on ALPA disability insurance through Guardian Insurance Corporation in

2008 for the 2007 assault Plaintiff stayed on this leave until 2012}.

5. At arbitration in July 2016, the plaintiff heard testimony provided by the Employee

Assistance Program (EAP)) which indicated that the EAP would speak with family members

concerning an employee who had asked for assistance. The former husband claims he spoke with

plaintiff5 s EAP during his mental health leave to discuss the plaintiff without her knowledge.

Plaintiff had not authorized such conversations. It is apparent that the then- husband did not tell

the plaintiff5s EAP that he was on a psychiatric leave of absence during any discussion he

had with them.

6. On her own volition, plaintiff decided to attend alcohol and drug rehab in 2007/2008. Plaintiff

would like to stress to the Court that she did not ever fail a drug or alcohol test at work; she was

not removed from flight duties for having positive results on drugs or alcohol tests. (Plaintiff

stopped flying after she was assaulted by her then-husband). The former husband visited the

treatment center several times per week (against the center’s own protocol). The former husband

created havoc for the plaintiff during his visits. Plaintiff was trying to get away from her thenhusband; that drove her decision to go to treatment in the first place. The former husband had

raided the plaintiff’s bank accounts leaving the plaintiff in financial ruins. The plaintiff had

health insurance, however, and she believed that treatment would provide long-term counseling

which would help her get through what had become an extremely nasty divorce. (The former

husband later testified in a 2014 deposition that he had planned to poison the plaintiff1 during his

divorce action. The plaintiff had young children; she became very concerned and wanted to be

with them).

PLAINTIFF WAS WRONGFULLY TERMINATED BY CONTINENTAL AIRLINES

ON APRIL 15,2008. THE TERMINATION WAS UPHELD BY UNITED AIRLINES ON

OCTOBER 5,2016. PLAINTIFF WAS NOTIFIED BY US MAIL ON OR AFTER

OCTOBER 8,2016.

7. Plaintiff signed a Work Agreement with Continental in March 2008. The agreement stated

that no one could alter the scope of the agreement Plaintiff claims the arbitrator exceeded scope

3

Case: l:17-cv-02709 Document#: 8 Filed: 04/10/17 Page 4 of 10 PagelD #:21

at the July 12,2016 arbitration hearing and also that the arbitrator based her decision heavily on

issues that were outside of scope. The working agreement was prepared by AT .PA, The only

reason that the termination could be upheld (according to the arbitrator) is a determination that

plaintiff drank alcohol the day of an April 15,2008 breathalyzer test. However, by the end of the

hearing United and the arbitrator were discussing other matters with the plaintiff, most of which

allegedly happened before and after the plaintiff signed the Work Agreement with Continental in

March 2008. Additionally, United maintains that there were two breathalyzer tests given to the

plaintiff on April 15,2008. Plaintiff maintains there was only one breathalyzer, as indicated by

United’s evidence presented at arbitration.

8. The recent position of the custodian of records is that there was one breathalyzer test and that

the result was “changed” from one reading to another reading. To terminate plaintiff again due

to altered records is unjustifiable. Plaintiff retrieved records from the record custodian. The

records state that the clinical director in fact called the EAP and reported a breathalyzer result,

wrongfully stating that plaintiffhad drank alcohol.

9. Plaintiff was given a drug test and a breathalyzer on or about April 15,2008. The “clinical

director” was allegedly in charge of conducting testing and reporting on plaintiff’s care to

Continental’s EAP. On or about April 15, 2008 (after the clinical director administered the

breath and drug test) the result of the breathalyzer was recorded, scribbled over, and a new result

was recorded. The new result was allegedly .02 (point 02). The original result appeared to be

.00 (the result that was scribbled over). Plaintiffmaintains that there was only one breathalyzer

test, she had not been drinking, and that the clinical director had set her up. The husband spent a

considerable amount of time at the treatment center with the clinical director outside of the

presence of the plaintiff.

In 2007 Continental, United, andALPA began merger discussions. The merger was completed

in 2012. Evidently, plaintiffwas switched over to United's seniority system during the time

she was receiving long-term disability with Guardian Insurance. long-term disability was

retroactively applied to the time plaintiffs husband assaulted her in 2007 and caused her

severe knee injuries while she was still on flight status at Continental.

4

Case: l:17-cv-02709 Document#: 8 Filed: 04/10/17 Page 5 of 10 PagelD #:21

10. ALPA refused to represent plaintiff at arbitration (for the second time in her career). The

arbitrator claimed on July 12,2016 that the only issue under review at arbitration was the

breathalyzer test of April 15,2008. The arbitrator and United exceeded scope at the hearing

and plaintiff even asked the arbitrator if scope was being violated, not only by the arbitrator but

by United’s attorney.

Having worked as a paid contract consultant at ALPA, plaintiff believes that had ALPA

represented her, scope would not have been exceeded. ALPA made no gesture to plaintiff

(and there were several ALPA personnel at the arbitration hearing) when scope was actually

being violated even though the plaintiff specifically mentioned that scope was being violated.

The hearing was transcribed and the plaintiff has the transcription.

Plaintiff had some familiarity with scope since she had been a paid consultant to ALPA in

2003-2004. However, the extent of plaintiff’s job experience was to inform pilots on how to

file grievances; the plaintiff had never been to an actual arbitration hearing and was unfamiliar

with the process and/or procedures utilized at grievance proceedings.

Arbitration hearing transcript, July 12,2016:

Page 82, Arbitrator:

“the only thing we are here to do is to hear your testimony that bears on the question whether

you were terminated properly for an alleged violation of your working agreement by testing

positive for alcohol. It really is a very narrow inquiry for the Board”.

Without plaintiffs express agreement, the inquiry at the arbitration hearing went from

being “very narrow” to “broad”. Even if plaintiff had agreed, no one could violate scope

according to the hastily prepared work agreement that ALPA and Continental had

plaintiff sign in March 2008.

11. United Airlines and the arbitrator both eventually raised questions at the bearing that had

nothing to do with the originally stated grounds of plaintiff’s termination, which had been

specifically explained by the arbitrator and United’s attorney before and during the arbitration

hearing. The plaintiffs work agreement stated that no one could exceed scope. This would

especially apply to an arbitrator knowingly exceeding scope in a hearing of an unrepresented

5

Case: l:17-cv-02709 Document#: 8 Filed: 04/10/17 Page 6 of 10 PagelD #:21

employee. Any testimony involving alleged incidents that occurred before (or after) the

signing of the March 2008 working agreement of the plaintiff (except for the alleged

breathalyzer reading on April 15,2008 which was the only issue to be discussed in arbitration)

should have been excluded from the decision to terminate the plaintiff.

Plaintiff also states that the altered breathalyzer should never have been relied upon by

anyone. The final vote as indicated on the correspondence dated and mailed on October 5

2016 was 2:1 in favor of termination.

12. What makes this situation more reprehensible to the plaintiff is that United utilized

two different types of scribbled upon records to terminate the plaintiff two separate

times during her pilot career (using records from August and September 1996 and in

April 2008). In both instances the records were scribbled upon such that the original

results were altered or materially changed to indicate different information than what had

actually transpired.

13. The plaintiff prevailed in the 1997 legal action brought against United for fabricating

her pilot record and then terminating her for alleged performance issues. Those records

were from August and September of2008. The April 2008 record used to justify plaintiff’s

termination is the fabricated breathalyzer result of April 15,2008. Both of these actions

are inherently fraudulent. In both cases, ALP Astated they could not prevail in any suit to get

plaintiff's employment back or in a suit for damages. Plaintiff states there is no excuse for an

employer scribbling upon information on official documents, changing the record and then

having the employer claim there is nothing wrong with their records.

LEGAL ARGUMENT

14. Plaintiff did not/does not admit to drinking alcohol on April 15,2008. The medical

record allegedly prepared by the clinical director states that the clinical director called the

EAP, not the plaintiff.

15. In a hybrid 301 suit, the plaintiff must plead and indicate in the pleading that the union

breached its duty of fair representation. The union failed to represent plaintiff in that they

were arbitrary, discriminatory, and/or utilized bad faith in regard to the handling of die

6

Case: l:17-cv-02709 Document#: 8 Filed: 04/10/17 Page 7 of 10 PagelD #:21

grievance/arbitration procedure. Plaintiff was not drinking or doing drugs at work. It

was never even alleged that plaintiff was drinking or doing drugs on pilot duty.

Last September two United pilots were arrested in Scotland for being legally intoxicated

on a taxiway. The individuals will likely be returned to flight status according to ALPA.

16. The arbitrator wrote in her decision that the union had provided “technical assistance”

to aid the plaintiff. Plaintiff submits to the Court that technical assistance with a fax

machine is not the same as representation. Plaintiff further believes that the issue

concerning exceedance of scope would not have happened had ALPA been representing

her. Plaintiff makes the claim that the arbitration outcome was more than likely affected by

the union’s breach of representation.

17. The two aforementioned pilots who were drunk (over legal limits) on the taxiway in

September 2016 have received representation while plaintiff did not. ALPA, United, and

the arbitrator knew of that development after the arbitration hearing and before the results

of the arbitration were decided. The plaintiff claims that union representation in matters

concerning drinking are arbitrary (plaintiff did not drink on the job, yet pilots who drank

on the job, who were illegally intoxicated, and who had over a hundred passengers on board their

aircraft received representation). The pilots who are represented are both white men; the

plaintiff is a female. Such action is discriminatory. Plaintiff further believes that age

discrimination likely has a factor in the decision to terminate the plaintiff.

18. Additionally, since plaintiff had a prior legal action against United Airlines, she believes

that is also a reason why United and ALPA acted in bad faith. ALPA certainly knew of the

prior legal action. The plaintiff has used only one ALPA seniority number for the past 21

years. The plaintiff was likely viewed by some at Continental as a whistleblower,

as the plaintiff was a government regulator at Continental after she was terminated by United.

Plaintiff also believes that some United employees disliked the feet that the plaintiff filed

suit against United in 1997 for the fabrication of her flight records (which were published to third

parties.

7

Case: l:17-cv-02709 Document#: 8 Filed: 04/10/17 Page 8 of 10 PagelD #:21

19. The lack of representation in both instances also indicates ALPA’s bad faith effort towards

the plaintiff. The fact that her labor union failed to represent her twice in cases involving

doctored or altered records indicate such. Plaintiff has used the same ALPA number throughout

her piloting career and has solely flown for ALPA carriers. Furthermore, the plaintiff has no

accidents or incidents on her airline record. Plaintiff thus submits that AT .PA has been arbitrary,

discriminatory, and also has acted in bad faith.

20. Had the union exercised reasonable diligence in its representation, it would have uncovered

exculpatory evidence which would have likely exonerated the plaintiff. Breach of representation

seriously undermines the integrity of the arbitral process. Breach of representation also removes

the bar of finality provisions of the contract and/ or working agreement associated with

arbitration outcomes.

21. On or after October 8,2016 the plaintiff received United’s termination decision in the US

mail. Plaintiff states her complaint is timely and that 6 months has elapsed since she received the

decision. Plaintiff did not know the outcome of arbitration until that date; she had hoped that

United or the arbitrator would have voted for her. If that had been the case, the plaintiff would

have been reinstated and there would have not been a need to write this complaint. Plaintiff

originally requested a five- member board, but the arbitrator dismissed that idea before

arbitration began. From her experience at ALPA, the plaintiff understands that an airline will

pick an arbitrator who has a track record of voting in favor of the airline. (ALPA routinely

strikes arbitrators who are likely to vote for the company over those they represent) On the flip

side this also guarantees that certain arbitrators will continue to have a lucrative business with

management of a particular airline.

22. WHEREFORE, the plaintiff requests that the Court order plaintiff to be reinstated to pilot

status. Plaintiff would also accept employment as promulgated in the Seventh Circuit decision

of 2012, EEOC v United Airlines, 1:10-CV-01699, US District Court No. District of Illinois,

EEOC v United Airlines, No. 11-1774, 7th Cir.). Plaintiff has a hematology disorder and is

receiving disability. Plaintiff believes if she cannot return to flight status that she should be

accommodated under the ADA for her hematology disorder.

8

Case: l:17-cv-02709 Document #: 8 Filed: 04/10/17 Page 9 of 10 PagelD #:21

23. Regardless whether or not United is ordered to reinstate plaintiffto a pilot position or

another position where she can be accommodated under ADA for her hematology illness,

the plaintiff requests reasonable compensatory damages and as well as court costs. (At the

arbitration hearing, the plaintiff specifically mentioned EEOC v United Airlines (2012) in

an attempt to procure other employment at United). United Airlines’ attorney was not only

adamantly against this, but specifically called the case “United v EEOC”. {United applied for

certiorari to the US Supreme Court in 2013. The US Supreme Court denied hearing and

upheld the law in the Seventh Circuit Court of Appeals}.

24. If the Court so desires, plaintiff believes United should be assessed punitive damages

due to United’s long history of being placed on consent decrees and United’s history

concerning other violations of federal labor law. Due to Continental’s wrongful termination

ofplaintiff in 2008 and United’s upholding ofthe termination in 2016 as well as the failure

of the union to properly represent the plaintiff in that they breached their duty of fair

representation, the plaintiff asks for a combination of remedies. Plaintiff also states that

United/and the arbitrator exceeded the scope of plaintiff’s working agreement.

25. Specifically, plaintiff requests to be reinstated to pilot status. Plaintiffrequests ADA

accommodation in other suitable employment at United commensurate with plaintiff’s

education and work skills if for any reason she is not returned to flight status. Plaintiff

requests compensatory damages in the reasonable amount of $500,000 for back wages and the

loss of other financial benefits she would have received as a pilot. Plaintiff has suffered extensive

humiliation and emotional distress due to the terminations). The relied upon breathalyzer test to

uphold termination is defamatory. If plaintiff is not returned to flight status or other suitable

employment she requests an upward modification of compensatory damages.

PRAYER FOR RELIEF

9

Case: l:17-cv-02709 Document #: 8 Filed: 04/10/17 Page 10 of 10 PagelD #:21

Very respectfully,

Kathleen Betts

PO BOX 361

Gulf Breeze FL 32562

850-816-8927

I hereby state that the following parties have been served this______ day of April, 2017 via

service of process as delineated in the local rules and in the state of Illinois civil rules of

procedure.

Jessica Kimsborough (for)

United Airlines

WHQLR

233 S. Wacker Drive

25th floor

Chicago, IL 60606

John Schleder (for)

ALPA

9550 West Higgins Rd

Suite 1000

Rosemont, EL 60018

10

CU€ S'"

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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