Petition for Writ of Certiorari — Kathleen Betts, Petitioner v. United Airlines, Inc.
Supreme Court briefOct 28, 2019
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I
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.
a9
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
aI
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
a fc
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
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Document: 43
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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
4p ^
o
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
a M
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><\
i*
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)
V.
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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 of
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of the
in the state of
CO
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4. The plaintiff sought employment or was employed by the defendant at (street address)
(£>x>e/vj*s Trctfnvi^ Qti'-fer ^Uni+eoC) T)eniMUT , CO
@freexAKCX^
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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
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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
□
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a, AMr secBon. ptoase attM, „ aadlOmal shaet
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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
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"(W f/llSOftAWVUiof*
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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.
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figc- 5 pe c i
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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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■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.