# Petition for Writ of Certiorari — Hulsey v. USAir, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 892

## Text

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IN THE

Sigreme Cort of the United States

OCTOBER TERM, 1989

DANIEL P. HULSEY, |
Petitioner,
Ve
USAIR, INC., |
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

HAL K. GILLESPIE *
HICKS, GILLESPIE, JAMES,
ROZEN & PRESTON, P.C.
One Mockingbird Plaza, |
Suite 760, Lock Box 127 |
1420 West Mockingbird Lane
Post Office Box 560388
Dallas, Texas 75356-0388
(214) 630-8621
Counsel for Petitioner
Daniel P. Hulsey

* Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether it is proper for a court of appeals to affirm
a summary judgment on the basis that there is no genu-
ine issue of material fact where plaintiff was stayed from
seeking any discovery.

2. Whether it is proper for a court of appeals to affirm
a summary judgment on the basis that there is no gen-
uine issue of material fact when the basis of the district
court’s summary judgment was on an issue which did
not involve resolving disputed issues of material facts,
and during which time plaintiff was stayed from seeking
any discovery.

3. ‘What is the appropriate proof scheme in a claim
brought by a protected employee under the Airline De-
regulation Act of 1978.

4. Whether the merits of a claim that an employee was
terminated because of his status as a forced hire employee
under the Airline Deregulation Act of 1978 should be
heard by a federal court or by a system board of adjust-
ment established pursuant to the Railway Labor Act.

ii

LIST OF ALL PARTIES TO THE PROCEEDING
REQUIRED BY SUPREME COURT RULE 21.1(b)

Parties to the proceeding are as follows:

1. Daniel P. Hulsey.

2. USAir, Inc

3. Hal K. Gillespie, Esq., Hicks, Gillespie, James,
Rozen & Preston, P.C., One Mockingbird Plaza,
Suite 760, Lock Box 127, 1420 West Mockingbird
Lane, Post Office Box 560388, Dallas, Texas
75356-0388.

4. William C. Strock, Esq., Haynes and Boone, 3100
NCNB Plaza, 901 Maine Street, Dallas, Texas
75202-3714.

5. John V. Jansonius, Esq., Haynes and Boone, 3100
NCNB Plaza, 901 Main Street, Dailas, Texas
75202-3714.

6. Harry

10

10

iv

TABLE OF CONTENTS—Continued

Ill. THIS COURT SHOULD CLARIFY THE IM-
PORTANT QUESTION OF WHAT PROOF
SCHEME IS APPLICABLE IN A CLAIM
BROUGHT BY A PROTECTED EMPLOYEE
UNDER THE AIRLINE DEREGULATION
REE BRE sinitiensmtnasieaie

IV. THIS COURT SHOULD CLARIFY THE IM-
PORTANT QUESTION OF WHETHER THE
SYSTEM BOARD OF ADJUSTMENT, WHICH
WAS ESTABLISHED PURSUANT TO THE
RAILWAY LABOR ACT, IS THE REQUIRED
FORUM FOR HEARING THE MERITS OF A
CLAIM THAT AN EMPLOYEE WAS TER-
MINATED BECAUSE OF HIS STATUS AS
A FORCED-HIRE EMPLOYEE UNDER THE
AIRLINE DEREGULATION ACT OF 1978......

CONCLUSION .......... sie iatatiblscoohaiputcaini mbistioetinaigsebeapenDaCadetets

APPENDIX A

Opinion of Fifth Circuit Court of Appeals dated
IED SI EE ack a tcctecicaimanebinccneeasiddceabaceiaciatnas

APPENDIX B

Order on Petition for Rehearing and Suggestion
for Rehearing En Banc dated May 12, 1989

APPENDIX C

Judgment of the United States District Court for
the Northern District of Texas, Dallas Division,
dated October 20, 1987

APPENDIX D

Memorandum, Opinion and Order of the United
States District Court for the Northern District of
Texas, Dailas Division, dated October 20, 1987

Page

10

13

17

la

12a

l4a

15a

v

TABLE OCF CONTENTS—Continued

APPENDIX E

Order of the United States District Court for the
Northern District of Texas, Dallas Division, dated
SE Se eee ee penndeec

APPENDIX F

Order of the United States District Court for the
Northern District of Texas, Dallas Division, dated
ene Get Ee oe eee

APPENDIX G

Order of the United States District Court for the
Northern District of Texas, Dallas Division, dated
OEE DR, TIE ook

APPENDIX H

Agreed Order of the United States District Court
for the Northern District of Texas, Dallas Divi-
sion, dated October 15, 1984 ....................................

APPENDIX I

Airline Deregulation Act of 1978, Section 43(d),
49 U.S.C. App., Section 1552 (1987)

Page

20a

2la

22a

23a

vi

TABLE OF AUTHORITIES

Cases: Page
Alaska Airlines, Ine. v. Brock, 480 U.S. 678,
Re ED. ROTI D ss secsseneumacaknsbenkieeoaanueceenen 7
Bishop v. Wood, 426 U.S. 341 (1976) ....................... 10, 12
Brown v. American Airlines, Inc., 593 F.2d 652
BURRS UG. LTD)... snsesvcnseccincscacvescsserisccenesnemnansaseqenns 14, 15
Celotex Corp. v. Catrett, 477 U.S. 317, 91 L.Ed.2d
SE No 7153, 5occxatt Gecrlatsaetabanteimemnioens eS 10, 12
Machinists v. Central Airlines. 372 U.S. 686
RUNNIN <0. <su:cannhantasduhains VondpsdneinshannsnanmiannbepsuniensaaseGinan 14
McDonnell Douglas Corporation v. Green, 411 U.S.
BE IID: os skcxconntcesscuconturh Celivsbannaceinatnavecseseaaaeannnctel 11
Texas Department of Community Affairs v. Bur-
"el foe SB bee eee 11
Thornbrough v. Columbus and Greenville R.R. Co.,
760 F.2d 633 (5th Cir. 1985) —...... apeadioadnes 10, 11, 12, 18
United States v. Daly, 576 F.2d 1076 (5th Cir.
1985), cert. denied, 106 S.Ct. 574 (1986) ........ 4
United States Postal Service Board of Governors
v. Atkens, 460 U.S. 711 (1988) ......................0.. 11
Statutes:
RE, OE RU occ sca Canesencvcacsieabaeeendsesubsananeecapenaies 2
Ee 5.5 5a necsaeins cadesennasenvenseneteeaucabneeiiee 2
28 U.S.C. §$ 2201 . 2
RS Me I os cssucieasn’sieih sanssoupinsesohashanusDONaaphisaaehies 2
- oe Roe a eo eae sialic alii aie 11
ERS IE UE GOO 5 snisanccsscccinsanceacouneesanseteemeennes 14
45 U.S.C. $ 1688 ................. sonnhnqulsiabhendcnbnimamce 16

49 U.S.C. § 1552 (1987) Secesiann deattheassasiniale < a

IN THE
Siprenw Court of the Wuited States
OCTOBER TERM, 1989

No. ——-

DANIEL P. HULSEY,
Petitioner,
USAIR, INC.,
Respondent.

PETiITiON FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

The Petitioner, Daniel P. Hulsey ‘hereinafter “Hul-
sey’), respectfully requests that a writ of certiorari be
issued to review the judgment of the United States Court
of Appeals for the Fifth Circuit entered in the above ref-
erenced matter on April 3, 1989 (Petition for Rehearing
denied on May 12, 1989).

OPINIONS BELOW

The opinion of the Fifth Circuit Court of Appeals at
bar is reported at 868 F.2d 1423 (5th Cir. 1989). The
opinion is reproduced in the Appendix hereto (App. A,
at la).’

1 The Appendix hereto is presented in an appended volume desig-
nated as “App.” The Trial Court’s Judgment and Order, dated
October 20, 1987, are reproduced in the Appendix (App. C and
App. D).

2

JURISDICTION

Hulsey’s Petition seeks review of the Judgment of the
Court of Appeals entered on April 3, 1989. By Order
dated May 12, 1989, the Fifth Circuit denied Hulsey’s
Petition for Rehearing. (App. D.) This Court’s jurisdic-
tion is invoked under 28 U.S.C., § 1254(1).

STATUTES AND REGULATIONS

Statutes—The Appendix contains the following: The
Airline Deregulation Act of 1978, $43(d), 49 U.S.C.
App., § 1552 (1987).

STATEMENT OF THE CASE

A. Nature of the Case

Hulsey brought suit in the United States District Court
for the Northern District of Texas, Dallas Division, al-
leging the unlawful circumvention of the first right of
hire provision of the Employee Protection Program in 49
U.S.C., § 1552, by USAIR, Ine.’s (hereinafter “USAIR”)
termination of Hulsey without justification. Hulsey fur-
ther sought to have his job status reinstated, as well as
reinstatement of benefits lost and protection against re-
taliation. The jurisdiction of the District Court was in-
voked under 28 U.S.C., §§ 1331, 2201, and 2202.

B. Proceedings Below

Hulsey filed his original complaint against USAIR on
November 17, 1983 (Tr. 1).2. Pursuant to an Agreed
Order of October 15, 1984, proceedings were stayed pend-
ing a final decision in the matter that was ultimately
resolved by the United States Supreme Court in Alaska
Airlines, Inc. v. Brock, 480 U.S. 678, 94 L.Ed.2d 661
(1987) (Tr. 27). The court lifted its stay and ordered
various deadlines by its Order of May 1, 1987 (Tr. 98).

2 References to the record will be cited as “Tr.” with appropriate
pagination.

3

By pleading of July 31, 1987, USAIR filed its M
to Dismiss and Motion for Summary Judemen 1
105). Hulsey responded on August 31 1%s7 Tr. 14
179); and USAIR replied on September 18, 1%s7
195). By Memorandum Opinion and Order, dated Oc.-
ber 20, 1987, United States District Judge Barefoo
Sanders, Acting Chief Judge of the Northern Distric
Texas, granted USAIR’s Motion for Summary Judem
(Tr. 265), and entered judgment accordingly ‘Tr. 272
Hulsey filed his timely Notice of Appeal on Novem!y
1987 (Tr. 273).

Oral argument was conducted on Hulsey’s appea!
June 9, 1988 before Judges Goldberg, Garwood, and
Jolly. Under the opinion of Judge Garwood of April 3.
1989, the Panel affirmed. ‘App. A.) Hulsey then filed
Petitions for Panel Rehearing and Suggestion of Rehear-
ing En Banc. On May 12, 1989, the Fifth Circuit denied
Hulsey’s Petitions for Panel Rehearing and Sugyestior
of Rehearing En Bane. |‘ App. B.)

C. Statement of Facts

As found by the district court, two key facts are
disputed: (1) Hulsey is a protected employee und
Airline Deregulation Act of 1978, Section 45:d). 4%
U.S.C. § 1552 (1987) (hereinafter “the Act”): and
USAIR is subject to the Act (Tr. 267). More s)x
cally, Hulsey was a pilot on non-probationary status \
-Braniff Airways, Inc. from 1973 until Branitf-cess
operations and filed bankruptcy in 1982. (Tr. 2-5. 14)
7 3, 266). On or about June 1, 1982, Hulsey appli:
USAIR as an employee eligible for protection of the A
(Tr. 3, 266). USAIR is an interstate air carrier, su
ject to the Act (Tr. 2, 266). USAIR hired Hulsey
probationary status in September, 1982 (Tr. 3, 2h:
USAIR requires all new pilots to serve a one-year pr
tionary period (Tr. 235, 266).

4

During Huisey’s training and his first three months of
active service with USAIR, he was a defendant in a fed-
eral tax crimes suit in the United States District Court
for the Northern District of Texas, Fort Worth Division
(Tr. 3-4, 266). Hulsey’s participation in the trial re-
quired him to periodically miss work. Jd. On March 12,
1983, Hulsey was found guilty of conspiring to defraud
the federal government and willfully subseribing false
individual income tax returns; the conviction was af-
firmed by the Fifth Cireuit Court of Appeals (Tr. 4, 266;
United States v. Daly, 576 F.2d 1076, 1079 (5th Cir.
1985), cert. denied, 106 S.Ct. 574 (1965) ). USAIR sus-
pended Hulsey in March, 1983 without notice or oppor-
tunity to be heard, and terminated him on May 1, 19838
(Tr. 4, 267) USAIR stated the reason for plaintiff’s
termination as his frequent unavailability for work and
his criminal conviction (Tr. 5, 257).

Other facts, specifically those surrounding and includ-
ing this question of whether USAIR’s stated reasons were
pretexts (an allegation in the case) are disputed. In his
complaint, Hulsey pled detailed specific facts (Tr. 2-6,
€5.1-5.24) and alleged USAIR had circumvented the
Right of First-Hire provisions of the Employee Protec-
tion Program of the Act “by terminating plaintiff’s em-
ployment without justification and under the guise of
[his] so-called ‘probationary period’ ” CPE; Ry UG
Hulsey alleged that USAIR’s stated reasons for termina-
tion were pretextual, and that the termination was a bad
faith circumvention of his right of first hire under the
Act (Tr. 3-7, see especially 9 5.8-5.18, 5.20, 5.22, 6.1-
6.3. 8.2). USAIR disputed these factual allegations (zr,
11-19).

Hulsey submitted extensive written discovery to
USAIR, consisting of Plaintiffs First Request for Pro-
duction of Documents ‘Tr. 161-63) and Plaintiff’s First
Set of Interrogatories and Request for Admission (Tr.
164-78). Document requests particularly relevant to the

5

issues of circumvention of the Act and pretextual dis-
charge still pending when the district court granted
summary judgment decision were (Tr. 161-63) :

1. The contents of all personnel files kept by De-
fendant USAIR, Inc., concerning plaintiff.

* * * *
3. All documents concerning, supporting, or re-

lating to plaintiff’s discharge, including statements
of all witnesses that are not privileged.

* * * *

5. All rules and regulations (in effect) governing
employees’ duties and conduct maintained by defend-
ant at any time during the period of employment of
plaintiff.

6. Plaintiff’s attendance and sick leave record.

7. All [defendant’s] policies with respect to sick
leave, absenteeism and ‘or tardiness.

8. All documents showing the prerequisites or
qualifications to be hired as an Air-crew Member
(Pilot) by Defendant that were in effect at any time
while Plaintiff was in the employ of Defendant.

* % * *

10. All documents indicating conviction(s) of air-
crew members while in the employ of USAIR, Inc.,
of felony offenses or misdemeanors involving moral
turpitude; and as to any aircrew Member(s: with a
document(s) indicating such a condition, his or her
complete personnel file(s).

Likewise, many of Plaintiff’s First Set of Interrogatories
and Request for Admission (Tr. 167-76) were highly
relevant to the issues of circumvention and _ pretextual
termination: |

I.5. Please state the date and time of discharge.

I.6. Please identify the individual or individuals who
made the decision, identify all those who had in-

1.8.

i & Fe

1.12.

1.13.

1.14.

1.15.

1.16.

1.18.

1.19.

6

put into the decision to discharge plaintiff, and
state the degree of input by each.

* * * *

State in detail what opportunity Defendant gave
Plaintiff to explain the conduct which gave rise
to his discharge by Defendant.

* * * *

Please list the clause or clauses of any collective
bargaining agreement upon which Defendant re-
lied upon to justify the discharge of Plaintiff.

Please state the provisions of any written rules
and regulations governing employees’ duties and
conduct upon which Defendant relied to justify
the discharge of Plaintiff.

Please state in detail any unwritten policies of
Defendant with respect to the type of conduct in-
volved in the discharge of Plaintiff.

Please state in detail Defendant’s policy, whether
written or unwritten, with respect to written rep-
rimands or warnings.

Please state in detail the company’s written or
unwritten policies, if any, with respect to the
utilization or oral reprimands or warnings.

Please state whether any warnings, written or
oral, were made to Plaintiff and if so, please
state the date, identify the individual who gave
the warning, and state in detail the circumstances
under which warnings were made.

: « * + *

Please state whether or not Defendant has at-
tempted to hire employees in accordance with the
Airline Employee Protection Program established
by Section 43 of the Airline Deregulation Act of
1978 (Public Law 95-504).

Please state the names of all aircrew members
(Pilots) hired by Defendant since October 24,

7
1987, being sure to identify all such hirees who
were protected or are arguably protected under
the Airline Deregulation Act of 1978, including
the name of their prior airline employer.

1.20. Please state the names of each and every individ-
ual employee that Defendant has hired since Oc-
tober 24, 1978 that Defendant deemed excepted
from the Act’s Employee Protection Program,
including the employee’s position, status, and rea-
son for the exception.

1.21. Please state in detail Defendant’s hiring policies
regarding “protected employees” under 49 U.S.C.
$ 1552 during the period of: a. May 12, 1982 to
August, 1983 and b. August 1983 to the present.

1.22. Please state in detail any (and all) steps that
have been taken by Defendant to comply with the
Airline Dereguiation Act of 1978 and specifically
with respect to the Act’s Employee Protection
Program.

A.7. Please admit that Defendant has no written pol-
icy that termination of a pilot found guilty of a
tax crime by petit jury is “job related.”’

A.8. Please admit that Defendant has no written pol-
icy that termination of a pilot who has been found
guilty of a tax crime by a petit jury is a “busi-
ness necessity” (Tr. 167-176).

USAIR never answered this discovery, though the al-
legations were not abandoned, and the discovery was only
held in abeyance. The day before USAIR’s responses
were due, the district court entered an Agreed Order
staying proceedings pending a final decision in another
lawsuit challenging the constitutionality of the Act (R.
27). Following the Supreme Court’s decision in Alasica
Airlines, Inc. v. Brock, 480 U.S. 678, 94 L.Ed.2d 661
(1987), the district court entered a scheduling order set-
ting an August 3, 1987 deadline to file motions and briefs
on the dispositive Jegal issues raised by Plaintiff's Origi-
nal Complaint (Tr. 100).

8

Pursuant to that Scheduling Order, USAIR filed a Mo-
tion for Summary Judgment on July 31, 1987 (Tr. 102).
Plaintiff responded (Tr. 179), and filed summary judg-
ment evidence (Tr. 140-178). Hulsey’s opposition stressed
that there would be no basis for granting summary judg-
ment, given the outstanding discovery as to the cause of
plaintiff’s termination, unless the court ruled that a car-
rier fully and completely satisfies all obligations under
the Act by the simply hiring a “protected” employee (Tr.
190-92). Hulsey reminded the district court:

Further, it is an established principle of arbitra-
tion iaw (utilized by arbitrators to resolve disputes
as to whether just cause exists for termination) that
employees generally are not subject to discharge or
discipline for conduct away from company premises.
Elkouri and Elkouri, How Arbitration Works (4th
Ed. 1985), at 656-658.

Hulsey’s Affidavit stated:

22. On information and belief, USAIR had a policy
of not hiring “protected employees” from July, 1982
until August, 1983. I am attempting in this lawsuit,
by means of Plaintiff's First Request for Production
of Documents, hand-delivered September 14, 1984 to
Defendant (Exhibit I) and Plaintiff’s First Set of
Interrogatories and Requests for Admission, hand-
delivered on September 14, 1984 (Exhibit J attached
hereto) to obtain documents and responses to inter-
rogatories and requests for admission that will vali-
date my information and belief. (Tr. 145).

The district court expressly made no determination as
to disputed facts—whether the termination of Hulsey was
a sham, or whether USAIR would have retained or had
a policy of retaining nonforced hire probationary (or
non-probationary) pilots despite felony convictions with
sentences of imprisonment. Further (and obviously since
discovery on this point was being held in abeyance), the
district court did not hinge its decision upon the existence
or non-existence of “evidence that Hulsey was treated

9

any differently from any other USAIR pilot who was con-
victed on a felony offense and sentenced to prison there-
for” (quoting from the Fifth Circuit Decision, Slf Opin-
ion, at 2690-2691). Rather, the district court stated:
“Disputed facts unnecessary to the cause of action will
not be considered” (Tr. 267). Then it narrowly defined
the summary judgment question as follows:

The question before the Court is whether hiring
the Plaintiff on probationary status circumvents the
right of first hire provided in the Act. Defendant
contends that its duty was satisfied once Plaintiff
was hired. Plaintiff contends that hiring him on
probationary status nullifies the protection afforded
by the Act, because he could be terminated without
cause at any time during the one-year probationary
period. (emphasis added).

‘Tr. 268). The district couri’s decision can accurately
be characterized as agreement with the position of De-
fendant—that a carrier satisfies its duty by hiring a
“protected employee.” The district court held (Tr. 270-
on

Thus, the Court concludes the plain language of
the Act and the regulations promulgated pursuant
thereto imposed on Defendant a duty to hire Plain-
tiff as an employee protected under the Act. Once
hired, Defendant owed no greater duty to Plaintiff
than to other newly-hired pilots. Defendant hires all
pilots for a one-year probationary period. Collective
Bargaining Agreement, supra. During this proba-
tionary period, pilots can be terminated at Defend-
ant’s discretion. Thus, the court need not reach the
issue of whether Plaintiff was terminated for just
cause.

Not only did the district court not reach the issue of
“just cause,” it did not reach any issues, nor have un-
disputed facts concerning Plaintiff’s allegations concern-
ing circumvention of the Act, bad faith, and pretextual
termination. There was no basis whatever for the dis-
trict court to rule, nor did it, that USAIR terminated

10

Hulsey in good faith. According to the district court’s
analysis, the role of the federal courts in a case brought
pursuant to the Deregulation Act ends at the moment the
carrier proves that it satisfied its obligation under the
Act—namely, that it hired the “protected emplovee.”’

REASONS FOR GRANTING THE WRIT

I. THIS COURT SHOULD CLARIFY THE IMPOR-
TANT QUESTION OF WHETHER A COURT OF
APPEALS MAY AFFIRM A SUMMARY JUDG-
MENT ON THE BASIS THAT THERE IS NO GENU-
INE ISSUE OF MATERIAL FACT WHERE PLAIN-
TIFF WAS STAYED FROM SEEKING ANY
DISCOVERY.

Il. THIS COURT SHOULD CLARIFY THE IMPOR-
TANT QUESTION OF WHETHER IT IS PROPER
FOR A COURT OF APPEALS TO AFFIRM A SUM-
MARY ON THE BASIS THAT THERE IS NO GEN-
UINE ISSUE OF MATERIAL FACT WHEN THE
BASES OF THE DISTRICT COURT'S SUMMARY
JUDGMENT WAS ON AN ISSUE WHICH DID NOT
INVOLVE RESOLVING DISPUTED ISSUES OF
MATERIAL FACTS AND DURING WHICH TIME
PLAINTIFF WAS STAYED FROM SEEKING ANY
DISCOVERY.

WL. THIS COURT SHOULD CLARIFY THE IMPOR-
TANT QUESTION OF WHAT PROOF SCHEME IS
APPLICABLE IN A CLAIM BROUGHT BY A PRO-
TECTED EMPLOYEE UNDER THE AIRLINE DE-
REGULATION ACT OF 1978.

Rulings of the Supreme Court,’ and the highly signifi-
cant age discrimination decision of the Fifth Cireuit in
Thornbrough v. Columbus and Greenville Railroad Com-
pany, 760 F.2d 6382 (5th Cir. 1985), are directly at odds
with the approach of the Fifth Circuit in the instant mat-
ter. Celoter and Bishop, of course, stand for the propo-
3 Celotex Corp, v. Catrett, 477 U.S. 317, 91 L.Ed.2d 265 (1986);
-Bishop v. Wood, 426 U.S. 341, 48 L.Ed.2d 684 (1976).

11

sition that in connection with a motion for summary
judgment, a district court is required to resolve all genu-
ine disputes as to material facts in favor of the plaintiff,
and the district court may not grant summary judgment
in advance of full discovery.

Thornbrough, dealing with the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621, et seq., stands
for the crucial proposition that summary judgment is
generally inappropriate for resolving issues of motivation
and intent that often can be only proved through circum-
stantial evidence. Thornbrough, supra, 760 F.2d at 640-
41. More particularly, Thornbrough holds that a party
who claims his discharge was the result of an improper
motivation (age discrimination) is not doomed to fail
simply because the employer articulates a non-discrim-
inatory business reason for the firing. Thornbrough,
supra, 160 F.2d at 638, eloquently refutes the proposition
that only victims of wrongfully intended terminations
whose bosses are latter-day George Washingtons and ad-
mit wrongful intent may obtain relief in the courts.
Under Thornbrough, once the employer has articulated a
non-discriminatory business reason for termination, the
the party claiming wrongful intent in termination may,
through circumstantial or direct evidence, attempt to
show, by a preponderance of the evidence, that the stated
reason is a pretext. If the stated reason is a pretext, the
legal result is the same, it is as though the employer had
never articulated a non-discriminatory business reason—
the plaintiff prevails.

Thornbrough is itself a progeny of landmark Supreme
Court cases, such as McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973), Texas Department of Com-
munity Affairs v. Burdine, 450 U.S. 248 (1981), and
United States Postal Service Board of Governors v.
Aikens, 460 U.S. 711 (1983). As the Court ruled in
Aikens, in a disparate treatment suit, the ultimate issue
is whether the employer intentionally discriminated
against the plaintiff. Aikens, supra, 460 U.S. at 715.

12

Although Hulsey involves the issue of alleged discrimina-
tion on the basis of status as a “protected employee”
under the Airline Deregulation Act, the proof scheme
for disparate treatment cases outlined by the Supreme
Court under Title VII cases should have full applica-
tion. The Fifth Circuit’s ruling in Hulsey is a gross and
dangerous departure from the Supreme Court's standards
as to proof of disparate treatment cases—it would ensure
the plaintiff loses unless he presents “smoking gun” evi-
dence or an admission. Clearly, the Supreme Court should
protect against such a doctrine.

Here, although the Fifth Circuit properly held that
analysis of a claim by a protected employee under the
Airline Deregulation Act of 1978 (the Act) cannot stop
at simple proof that the carrier hired the protected em-
ployee, the Panel itself resolved the material disputed
facts (the ones the district court expressly refused to
resolve and USAIR labeled immaterial) adversely to Hul-
sey. (Slip Opinion, 2690, fn. 3.) The Fifth Circuit
labeled crucial disputed facts as undisputed—whether
USAIR would continue to employ pilots who were con-
victed for off-duty misconduct under some circumstances
and whether USAIR treated Hulsey as it would its other
pilots under similar circumstances (Slip Opinion, 2690) —
when in fact, Hulsey alleged to the contrary, submitted
an affidavit to the contrary, and had extensive discovery
pen ling on these matters.

The decision of the Fifth Circuit in this important
employment discrimination area is exactly opposite the
rules established by the Supreme Court and Fifth Cir-
cuit for entry of summary judgment. Bishop, supra;
Celotex, supra; Thornbrough, supra. Moreover, the Fifth
Circuit’s decision is akin to a ruling, as a matter of law,
in an age discrimination case that an employer would
have fired the employee regardless of his age, based upon
the employer’s mere denial that age was a factor in the
discharge and articulation of a non-discriminatory busi-
ness reason. Just as in Thornbrough, summary judgment

13

cannot issue on the basis of the employer’s denial and
articulation of a non-discriminatory business reason—a
claimant under the Act is entitled to discovery and trial
as to the “nebulous questions of motivation and intent.”
Thornbrough, supra, 760 F.2d at 640.

IV. THIS COURT SHOULD CLARIFY THE IMPOR-
TANT QUESTION OF WHETHER THE SYSTEM
BOARD OF ADJUSTMENT, WHICH WAS ESTAB-
LISHED PURSUANT TO THE RAILWAY LABOR
ACT, IS THE REQUIRED FORUM FOR HEARING
THE MERITS OF A CLAIM THAT AN EMPLOYEE
WAS TERMINATED BECAUSE OF HIS STATUS
AS A FORCED-HIRE EMPLOYEE UNDER THE
AIRLINE DEREGULATION ACT OF 1978.

Although the Fifth Circuit decision did not reach it,
because it treated disputed facts as undisputed, and erro-
neously affirmed summary judgment, this appeal involves
a question of exceptional importance. Specifically, in
light of the Fifth Circuit’s correct ruling that an em-
ployer does not insulate itself against any claim under
the Act by merely hiring a “protected emplovee.” a
major question remains concerning what forum should
resolve the merits of Hulsey’s case. After his discharge,
USAIR gave Hulsey no opportunity to explain his situa-
tion; nor, despite his efforts, would USAIR provide him
any hearing or access to the grievance procedure despite
the collective bargaining agreement (CBA) between
USAIR and the Airline Pilots Association providing for
a grievance procedure and a neutral determination of
whether just cause existed for termination (Tr. 143-44,
Hulsey Affidavit, © 14). USAIR excused this on grounds
that probationary employees lack grievance rights. Jd.

The question of which forum should address the issue
of USAIR’s actual motivation for firing Hulsey—the
federal district court or a System Board of Adjustment
(arbitration)—is far more complex than it might appear
at first blush. We submit thet the Airline Deregulation

14

Act of 1978 must be read in conjunction with other fed-
eral laws and specifically the Railway Labor Act (RLA),
45 U.S.C. $151, et seg., that sets forth labor law for
railroad and airline employees. Although this case can
simply be remanded for discovery and trial to a federal
judge or jury under the Thornbrough, supra, format, logic
and the scheme of federal labor law indicate a remand
for entry of judgment in favor of Hulsey and an order
to USAIR to proceed to a System Board of Adjustment
for determination of whether Hulsey would not only have
been fired, but would have stayed fired (i.e. whether just
cause existed) had he been:a non-forced hire, non-proba-
tionary pilot. This would not be a mere claim of unjust
cause discharge, under which a probationer lacks griev-
ance rights. It would be specific claim by a “protected
employee” that his firing was for an improper motive.

Questions of termination are “minor” disputes under
the Railway Labor Act. Brown v. American Airlines,
Ine., 593 F.2d 652 (Sth Cir. 1979). Federal labor law
favors submitting employee termination disputes to arbi-
tration. Machinists v. Central Airlines, 372 U.S. 686
(1963). The RLA requires that disputes between em-
ployees and carriers growing out of grievances (minor
disputes) be resolved through the grievance procedure,
including a System Board of Adjustment. RLA, 45 U.S.C.
$ 184.

The Fifth Circuit’s holding in Brown v. American Air-
lines, Inc., supra, illustrates that in dealing with airline
employees, normal presumptions simply do not apply.
The Fifth Circuit in Brown held that assuming that air-
line mechanic Brown made an agreement with American
Airlines whereby he withdrew his grievance in connec-
tion with lavoff in exchange for a promise that he would
be returned to work after receiving a federal mechanic’s
license, the remedy for breach of that agreement would,
in the first instance, be with the System Board of Ad-
justment under the Railway Labor Act, since the validity

- 15

of the agreement could only be assessed with reference
to the CBA. Brown, supra, 593 F.2d at 655-56. The
court pointed out:

[A|ssuming the agreement is not invalidated by its
inconsistency with the [BCA] this claim... stems
from, and depends upon rights secured by the [CBA]
Brown’s original claim, which led to the settlement
agreement, was based on a job-reclassification and
loss of seniority, the stuff out of which minor dis-
putes are classically made.

The district court, after incorrectly concluding that, in
effect, a carrier can terminate a “protected employee”
Where it would not have terminated a non-forced hire,
did not reach the question of whether USAIR terminated
Hulsely for just cause (Tr. 270-71). The Fifth Circuit’s
decision noted the relevancy of an inquiry as to whether
“USAIR discharged Hulsely as a forced hire when it
would not have discharged a non-forced hire probationary
pilot, or indeed a nonprobationary pilot, under the same
circumstances ....” (Slip Opinion, at 2690). Certainly,
as in Brown, supra, the question of just cause for termi-
nation is the “stuff out of which minor disputes are clas-
sically made.” Brown, supra, 593 at 655. It is necessary
to determine just cause ‘either by federal court or Svs-
tem Board of Adjustment decision) since a carrier has
the power to act and the employee has only the right to
react—through the grievance system and ultimately to a
System Board of Adjustment. Thus, a carrier can fire
an employee without cause, and often will do so to the
result that the employee is ultimately reinstated by Sys-
tem Board of Adjustment decision as though no discharge
had occurred.

It fosters the favored status of arbitration, for “ ro-
tected empiovee” under the Act who claims to have been

terminated in violation of his rights under the Act, to
submit the merits of his claim to the grievance procedure
and to the System Board of Adjustment in the first in-

16

stance. If the Svstem Board of Adjustment determines
that the carrier lacked just cause (a decision that flows
into the System Board’s jurisdiction under the CBA to
determine such issues), this determination may well in-
fluence and indeed decide the question of whether the
reason stated by the carrier for termination of the “pro-
tected employee’ was pretextual. Under the RLA, 45
U.S.C. §153'p)(q), judicial review of decisions of the
System Board of Adjustment is limited to actions “for
failure... to comply with the requirements of this chap-
ter. for failure of the order to conform, or confine itself
to matters within the scope of [its] jurisdiction, or for
fraud or corruption [in] making the order.” 45 U.S.C.
$153 First (p).

While Hulsely is prepared to pursue this matter either
through discovery and trial in the federal district court
or through the grievance procedure, including a System
Board of Adjustment hearing, it is most logical for the
Airline Deregulation Act and the Railway Labor Act to
be read in conjunction so that a “protected employee who
claims to have been terminated in violation of his rights
under the Act should be entitled to the grievance pro-
cedure for resolution of the merits of his claim. It is
illogical to bypass the System Board of Adjustment and
the judicially-favored arbitration process.

17
CONCLUSION

For the foregoing reasons, a writ of c

issue to review the judgment.

Respectfully su

HAL K. GILLESPIE *
HICKS, GILLESPIE, JAM
ROZEN & PRESTON, |
One Mockingbird Plaza
Suite 760, Lock Box 12°
1420 West Mockingbird |
Post Office Box 560388
Dallas, Texas 7535 ate
(214) 630-8621
Counsel for Petit

Daniel P. H

* Counse! of Re

APPENDICES

la
APPENDIX A

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

No. 87-1886

DANIEL P. HULSEY,
Plaintiff-A ppellant,
Vv.

USAIR, INC.,
Defendant-A ppellee.

Appeal from the United States District Court
for the Northern District of Texas

April 3, 1989

Before GOLDBERG, GARWOOD and JOLLY, Circuit
Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Daniel P. Hulsey (Hulsey), a com-
mercial pilot, brought this civil action suit against his
former employer, defendant-appellee USAir, Inc. (USAir),
seeking declaratory relief and money damages for US Air’s
alleged violation of the Airline Deregulation Act of 1978,
§ 43(d), 49 U.S.C. App. § 1552 (1987). The district
court, Judge Barefoot Sanders, rendered summary judg-
ment in favor of USAir. We affirm.

2a

Facts and Proceedings Below

The following facts were found by the district court
and are not in dispute.

Hulsey was employed as a commercial airline pilot for
Braniff Airways, Inc., from 1973 to 1982, when Braniff
ceased operations and filed bankruptcy. In June 1982,
after Braniff ceased operations, Hulsey, an employee
eligible for protection under the Airline Deregulation Act
of 1978 (the Act), applied for employment as a pilot with
USAir, an interstate air carrier subject to the provisions
of the Act. In September 1982, USAir hired Hulsey on
probationary status. USAir requires all new pilots to
serve a one-year probationary period, after which the
pilots can be fired only for cause. Hulsey was on non-
probationary status when he worked for Braniff.

During his training and first three months of active
service with USAir, Hulsey was a defendant in a federal
criminal prosecution for several income tax-related
felonies, and his participation in that trial caused hiin
to miss work periodically. On March 12, 1983, a jury
found him guilty of one count of conspiring to defraud
the federal government under 18 U.S.C. § 371, and three
counts of willfully subscribing false individual income tax
returns under 26 U.S.C. § 7206(1) (1976), and on April
22, 1983 he was sentenced to concurrent thirty months’
imprisonment terms on each count and a $5,000 fine.’
On March 15, 1983, USAir suspended Hulsey without
notice cr opportunity to be heard, and on May 1, 19838,
following his sentencing, Hulsey was fired. USAir’s
stated reasons for Hulsey’s termination were his fre-
quent unavailability for work and his criminal convic-
tions.

! This Court eventually affirmed Hulsey’s conviction and he served
seven months of his sentence beginning in August 1985. See United
States v. Daly, 756 F.2d 1076 (5th Cir.), cert. denied, 474 U.S. 1022,
106 S.Ct. 574, 88 L.Ed.2d 558 (1985).

3a

Hulsey then filed the present action against USAir in
November 1983. Hulsey alleged in his complaint that
USAir had violated its duty under the Act’s first right
of hire provision, which requires that airlines give a hir-
ing preference to employees dislocated as a result of the
deregulation of the airline industry. He further alleged
that he was denied employment opportunities because of
this violation. The Act’s first right of hire provision,
which is codified at 49 U.S.C.App. § 1552(d) (1), states
in pertinent part:

“Each person who is a protected employee of an
air carrier which is subject to [the Act] whois...
terminated by such an air carrier (other than for
cause) prior to the last day of the 10-year period
beginning on October 24, 1978 shall have first right
of hire, regardless of age, in his occupational spe-
cialty, by any other air carrier hiring additional em-
ployees. . . . Each such air carrier hiring additional
employees shall have a duty to hire such a person
before they hire any other person. . . .”

According to Hulsey, USAir circumvented its duty under
this provision by hiring him on probationary status,
which permitted the carrier to terminate his employment
without cause during the first year of employment not-
withstanding the statutory hiring preference.

USAir responded by filing a motion to dismiss and
a motion for summary judgment. USAir argued that by
hiring Hulsey it had satisfied its duty under the first
right of hire provision and that Hulsey’s subsequent dis-
charge did not constitute a violation of that provision.
In an order dated October 20, 1987, the district court
granted USAir’s motion for summary judgment stating
that USAir’s duty to hire under the first right of hire
provision does not imply protection beyond hiring. The
district court noted that pursuant to its collective bar-
gaining agreement with the Air Line Pilots Association,
USAir hires all its pilots for a one-year probatonary

4a

period, and during that period any pilot can be ter-
minated at USAir’s discretion. The court further noted
that while the Act imposed a duty on USAir to hire Hul-
sey, once Hulsey was hired USAir owed no greate. .uty
to him than it did to any of its other newly hired pilots.
The court therefore concluded that once Hulsey was hired,
USAir could terminate him without cause within the
one-year probationary period, just as it could terminate
any of its other newly hired pilots. Hulsey now appeals
that decision.
Discussion

On appeal, Hulsey contends that the district court mis-
interpreted the Act when it concluded that the first right
of hire requirement is satisfied once the “protected” em-
ployee is hired. According to Hulsey, this interpretation
renders the first right of hire provision meaningless, for
a carrier could theoretically satisfy its obligation under
the provision by hiring a protected employee one moment
and firing him the next, and then hiring the carrier’s
first choice without the restrictions of statutory hiring
preferences. This kind of protection, Hulsey argues, is no
protection at all. Thus, Hulsey contends that for the pro-
vision to have meaning, it must be interpreted to impose
a duty of hiring protected employees on a permanent
rather than probationary status. Furthermore, Hulsey
contends that to give meaning to the first right of hire
privilege, the “protected” employees must be allowed to
challenge a wrongful termination in a grievance proce-
dure (including labor arbitration) or in the federal
courts. Hulsey contends that such an interpretation of
the Act “would be consistent with a long series of rights
deemed by the courts to flow from the duty to bargain
in good faith provided under the Railway Labor Act, 45
U.S.C. £152, . . . and the Labor Management Relations
Act, 29 U.S.C. § 158(a) (5).”

We reject these arguments for the reasons set forth
in the district court’s opinion, which is reproduced as the

5a

appendix hereto. After reviewing the legislative history
of the first right of hire provision, the district court con-
cluded that Congress intended to limit the employment
protection to a hiring preference.* Beyond the hiring, the
district court concluded, the law does not afford the pro-
tected employees preferential treatment.’ We agree with
these conclusions.

In short, we are in agreement with the district court’s
opinion and we affirm on that basis. We add, however,
that we do not read the district court’s opinion as saying
that USAir discharged Hulsey as a forced hire when it
would not have discharged a nonforced hire probationary
pilot, or indeed a nonprobationary pilot, under the same
circumstances; indeed, there is no evidence to this effect.
In this case, it is undisputed that USAir will not employ
pilots who are convicted felons, and it is undisputed that
Hulsey was fired because of his multiple felony convic-
tions after he was sentenced to thirty months’ imprison-
ment. There is no allegation or summary judgment evi-
dence that USAir has retained, or has a policy of retain-
ing, probationary (or nonprobationary) pilots who are
not protected by the Act despite felony convictions with
sentences of imprisonment; thus, there is no evidence

2 And as the district court correctly noted, the protected employee
must meet the qualification requirements established by the air
carrier (other than those qualifications concerning initial hiring
age or recall rights) as required by regulations promulgated by the
Secretary of Labor under the authority of the Act. See 29 C.F-.R.
§ 220.23.

3 We do not suggest that a willful sham hiring—one undertaken
only for the purpose of mere formal compliance with the Act’s first
right of hire provisions and with the intent to promptly terminate
the new forced hire at the first opportunity—complies with the Act;
but here there is no basis on which to conclude that the initial hir-
ing was a willful sham; that it was probationary—as, pursuant to
the collective bargaining agreement, was USAir’s hiring of all its
pilots—affords no basis whatever for any inference that it was a
sham.

6a

that Hulsey was treated any different from any other
USAir pilot who is convicted of a felony offense and sen-
tenced to prison therefor. The undisputed evidence indi-
cates that Hulsey was afforded preferential treatment
when he was hired, and that in subsequently discharging
him USAir treated Hulsey as it would treat its other
pilots under similar circumstances, as it is permitted to
do under the law. Thus, since there was no genuine issue
of material fact, the district court properly found that
USAir is entitled to judgment as a matter of law.

Conclusion

For the reasons set forth in the district court’s opin-
ion. we find no merit in Hulsey’s arguments. Accord-
ingly, the judgment in favor of USAir is

AFFIRMED.

Ta
APPENDIX

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Civil Action No. 3-83-2017-H

DANIEL P. HULSEY,

: Plaintiff,

USAIR, INC.,
Defendant,

MEMORANDUM OPINION
AND ORDER

SANDERS, Acting Chief Judge.

Before the Court are Defendant's Motion to Dismiss
and Motion for Summary Judgment, filed July 31, 1987;
Plainitff’s Response, filed August 31, 1987; and Defend-
ant’s Reply, filed September 18, 1987

This is a civil acticn for deciaratory relief and money
damages attributable to Defendant’s alleged violation of
the Airline Deregulation Act of 1978, § 43idi, 49 U.S.C.
App. $1552 (1987) (“the Act”). Plaintiffs Original
Complaint «“Complaint”) at 1. Plaintiff alleges that De-
fendant violated its duty under the Act to first hire em-
ployees dislocated as a result of deregulating the airline
industry. Specifically, Plaintiff alleges that Defendant
circumvented its duty to offer plaintiff the “first right of
hire” by hiring him on probationary status, since proba-
tionary employees may be terminated at any time with-
out cause. Plaintiff contends that if probationary em-
plovment is considered to satisfy the Act, the protection

att ny 1 Je 3))) 17
afforded is illusory.

8a

The material facts in this case are undispv‘ed. Plain-
tiff was a pilot on non-probationary status with Braniff
Airways, Inc. (‘“Braniff”) from 1973 until Braniff ceased
operations and filed for bankruptcy in 1982. Complaint
at 2-3: Affidavit of Daniel P. Hulsey 3. On or about
June 1, 1982, Plaintiff applied to Defendant as an em-
ployee eligible for the protection of the Act. Complaint
at 3. Defendant is an interstate air carrier and is sub-
ject to the Act. Complaint at 2. Plaintiff was hired by
Defendant on probationary status in September, 1982.
Complaint at 3. Defendant requires all new pilots to
serve a one-year probationary period. Collective Bargain-
ing Agreement between USAir and the Air Line Pilots
Association, Chap. 18. During the period of Plaintiff's
training and his first three months of active service with
Defendant, Plaintiff was a defendant in a trial in the
United States District Court for the Northern District
of Texas, Fort Worth Division, in which he wes charged
with tax crimes. Complaint 9% 5.2, 5.8, 5.10, 5.12. Par-
ticipation in the trial required Plaintiff to periodically
miss work. Complaint © 5.8, 5.10, 5.11. Plaintiff was
found guilty on March 12, 1983 of conspiring to defraud
the federal government and willfully subscribing false
individual income tax returns. His conviction was af-
firmed by the Fifth Circuit Court of Appeals. Complaint
95.12 and United States v. Daly, 756 F.2d 1076, 1079
(5th Cir.), cert. denied, 474 U.S. 1022, 106 S.Ct. 574, 88
L.Ed.2d 588 (1985). On March 15, 1988 Defendant sus-
pended Plaintiff without notice or opportunity to be heard
and on May 1, 1983 Plaintiff was terminated. Complaint
"5.13. The stated reason for Plaintiff's termination was
his frequent unavailability for work and his criminal con-
viction. Complaint © 5.15,

Existence of Genuine Issues of Materia! Fact

Summary judgment is proper when pleadings and evi-
dence on file show that no genuine issue exists as to any
material fact and the moving party is entitled to judg-

9a

ment as a matter of law. Fed.R.Civ.P. 56. The sub-
stantive law determines which facts are material. Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242 106 S.Ct. 2505,
2510, 91 L.Ed.2d 202 (1986). Disputed facts unneces-
sary to the cause of action wil! not be considered. /d.

The elements of Plaintiff’s cause of action for violating
the Act are as follows: (1) Plaintiff is a protected em-
ployee under the Act; (2) Defendant is subject to the
Act: and (3) Defendant violated its duty under the Act
when it hired Plaintiff on probationary status rather
than permanent status. The first two elements are not
in dispute. Compare Complaint {] 5.5, 4.2 with Brief in
Support of Defendant’s Motion to Dismiss and Motion
for Summary Judgment { II.A.3., 4. The third element is
a legal issue.

Defendant's Entitlement to Judgment as a Matter of Law

The question before the Court is whether hiring the
Plaintiff on probationary status circumvents the right of
first hire provided in the Act. Defendant contends that
its duty was satisfied once Plaintiff was hired. Plaintiff
contends that hiring him on probationary status nullifies
the protection afforded by the Act, because he could be
terminated without cause at any time during the one
year probation period.

The Act provides that

fe]ach person who is a protected employee of an air
carrier which is subject [to this Act] who is...
terminated by such an air carrier (other than for
cause! ... shall have first right of hire, regardless
of age, in his occupational specialty, by any other
air carrier hiring additional employees .... Each
such air carrier hiring additional employees shall
have a duty to hire such a person before they hire
any other person... .

The legislative history of the Act does not specifically
address the scope of the duty to hire. As introduced, the

10a

House version of the Act (HR 12611) required the pro-
tection afforded to airline workers to be no less favorable
than that afforded to railway workers under the Inter-
state Commerce Act § 5(2)(f) and the Rail Passenger
Service Act $405. Interstate Commerce Act, 49 U.S.C.
$ 11347 and Rail Passenger Service Act, 45 U.S.C.
$$ 565(a) and (bi; see Alaska Airlines, Inc. v. Brock,
480 U.S. 678, 694, 107 S.Ct. 1476, 1485, 94 L.Ed.2d 661,
676 (1987). These statutes referred to in the House bill
specify that railway workers are protected from a
worsening of their employment position as a result of
action taken pursuant to these statutes. However, the
final version of the Act did not contain language refer-
ring to the broad protections afforded employees under
the Interstate Commerce Act and the Rail Passenger
Service Act.

The regulations promulgated by the Secretary of Labor
pursuant to the grant of authority in the Act for ad-
ministering the duty to hire refer to these provisions as
the “Rehire Program.” 29 C.F.R. § 220.02 (1986). The
reculations specify that the covered air carrier has the
duty to hire a pretected employee before it hires any
other applicant. Jd. § 220.20(a). The protected employee
must meet the qualification requirements established by
the air carrier, other than those qualifications concerning
initial hiring age or recall rights. /d. $ 220.21ia).

The Act specifically refers to the air carrier’s duty to
hire protected employees before other applicants. Where
possible, courts interpret the words of statutes “in their
ordinary, every day sense.” Malat v. Riddell, 383 U.S.
569, 571, 85 S.Ct. 1030, 1032, 16 L.Ed.2d 102 (1965) ;
Russello v. United States, 464 U.S. 16, 21, 104 S.Ct. 296,
299, 78 L.Ed.2d 17 (1983). To overcome this general
rule, “there must be something to make plain the intent
of Congress that the letter of the statute is not to pre-
vail.” Crooks v. Harrelson, 282 U.S. 55, 60-61, 51 S.Ct.
49, 50-51, 75 L.Ed. 156 (1930). With this Act there is

lla

no indication that Congress intended for the phrase “duty
to hire” to imply protection beyond hiring. Indeed, the
legislative history indicates that the House proposed ar-
guably broader employee protections, but then omitted
these broader protections from the final Act.’ Congress’
intent to limit the employment protection to a hirneg
preference can be inferred from their deleting the broader
language in the final Act. See Russello v. United Stat
464 U.S. 16, 23-24, 104 S.Ct. at 300-01 (1983).

Thus, the Court concluded the plain language of the
Act and the regulations promulgated pursuant thereto
imposed on Defendant a duty to hire Plaintiff as an em-
ployee protected under the Act. Once hired, Defendan:
owed no greater duty to Plaintiff than to other newly
hired pilots. Defendant hires all pilots for a one year
probationary period. Collective Bargaining Agreemen'
supra. During this probationary period, pilots can be
terminated at Defendant’s discretion. Thus, the Co
need not reach the issue of whether Plaintiff was tern
nated for just cause.

Conclusion

Plaintiff was lawfully terminated. There is no genu
issue of material fact and Defendant is entitled to judg-
ment as a matter of law. Accordingly, Defendant's \lo-
tion for Summary Judgment is GRANTED.

SO ORDERED.
Date: October 20, 1987.

i Some members of the House perceived that the final version
the Act as passed reduced the employment protection as provided
the earlier House version. “Representative Anderson stated °*
House provisions ou employee protection . .. were stronger thar
those in the [final Act].” Alaska Airlines, Inc. v. Donovan, 766 F 2c
1550, 1562 n. 10 (D.C. Cir. 1985), citing 124 Cong. Rec. 38.522
(1978). Representative Mineta stated that “{[b]y comparison wit!
the House-passed provision, the [final Act] is not much protect
at all.” /d., citing 124 Cong. Rec. 38,524-25 (1978).

12a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 87-1886

DANIEL P. HULSEY,
Plaintiff-A ppe llant,

versus

USAIR, INC.,
Defe ndant-A ppe lee.

Appeal from the United States District Court
for the Northern District of Texas

ON PETITION FOR REHEARING AND
SUGGESTION FOR REHEARING EN BANC
(Opinion April 3, 5 Cir., 1989, ———— F.2d ——

(May 12, 1989)

Before GOLDBERG, GARWOOD and JOLLY, Circuit
Judges.

PER CURIAM

(4) The Petition for Rehearing is DENIED and _ no
member of this panel nor Judge in regular active service

on the Court having requested that the Court be polled

13a

on rehearing en bane, (Federal Rules of Appellate Pro-
cedure and Local Rule 35) the Suggestion for Rehearing
Kn Bane is DENIED.

( ) The Petition for Rehearing is DENIED and the
Court having been polled at the request of one of the
members of the Court and a majority of the Circuit
Judges who are in regular active service not having voted
in favor of it, (Federal Rules of Appellate Procedure and
Local Rule 35) the Suggestion for Rehearing En Bane
is also DENIED.

( § A member of the Court in active service having re-
quested a poll on the reconsideration of this cause en
bane, and majority of the judges in active service not
having voted in favor of it, rehearing en banc is

DENIED.
ENTERED FOR THE COURT

s’ Walt Garwood
United States Circuit Judge

14a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

——

Civil Action No. 3-83-2017-H

DANIEL P. HULSEY,
Plaintiff

V .

USAIR, INC.,
Defendant

JUDGMENT

On October 20, 1987, the Court filed its Memorandum
Opinion and Order pursuant to which Defendant is en-
titled to judgment.

IT IS THEREFORE ORDERED, ADJUDGED AND
DECREED by the Court that Plaintiff Daniel P. Hulsey
take nothing by his suit against Defendant, and that this
suit be, and it is hereby, DISMISSED on the merits at
Plaintiff’s cost.

Signed this 20 day of October, 1987.

‘'s/ Barefoot Sanders
BAREFOOT SANDERS
Acting Chief Judge
Northern District of Texas

15a
APPENDIX D

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Civil Action No. 3-83-2017-H

DANIEL P. fI1ULSEY,
Plaintift
V.

USAIR, INC.,
Defendant

MEMORANDUM OPINION AND ORDER
(Filed October 20, 1987]

Before the Court are Defendant’s Motion to Dismiss
and Motion for Summary Judgment, filed July 31, 1987;
Plaintiff’s Response, filed August 31, 1987; and Defend-
ant’s Reply, filed September 18, 1987.

This is a civil action for declaratory relief and money
damages attributable to Defendant’s alleged violation of
the Airline Deregulation Act of 1978, § 43(d), 49 U.S.C.
£1552 (1987) (“the Act”). Plaintiff’s Original Com-
plaint (“Complaint”) at 1. Plaintiff alleges that Defend-
ant violated its duty under the Act to first hire employees
dislocated as a result of deregulating the airline industry.
Specifically, Plaintiff alleges that Defendant circumvented
its duty to offer Plaintiff the “first right of hire” by hir-
ing him on probationary status, since probationary em-
ployees may be terminated at any time without cause.
Plaintiff contends that if probationary employment is
considered to satisfy the Act, the protection afforded is
illusory.

lGa

The material facts in this case are undisputed. Plain-
tiff was a pilot en non-probationary status with Braniff
Airways, Inc. (“Braniff’) from 1973 until Braniff ceased
operations and filed for bankruptcy in 1982. Complaint
at 2-3: Affidavit of Daniel P. Hulsey $3. On or about
June 1, 1982, Plaintiff applied to Defendant as an em-
ployee eligible for the protection of the Act. Complaint
at 3. Defendant is an interstate air carrier and is sub-
ject to the Act. Complaint at 2. Plaintiff was hired by
Defendant on probationary status in September, 1982.
Complaint at 3. Defendant requires all new pilots to serve
a one-year probationary period. Collective Bargaining
Agreement between USAir and the Air Line Pilots Asso-
ciation, Chap. 18. During the period of Plaintiff's train-
ing and his first three months of active service with De-
fendant. Plaintiff was a defendant in a trial in the United
States District Court for the Northern District of Texas,
Fort Worth Division, in which he was charged with tax
crimes. Complaint © 5.2, 5.8, 5.10, 5.12. Participation in
the trial required Plaintiff to periodically miss work.
Complaint "5.8, 5.10, 5.11. Plaintiff was found guilty
on March 12, 1983 of conspiring to defraud the federal
government and willfully subscribing false individual in-
come tax returns. His conviction was affirmed by the
Fifth Circuit Court of Appeals. Complaint © 5.12 and
United States v. Daly, 756 F.2d 1076, 1079 (5th Cir.
1985). cert. denied, 106 S.Ct. 574 (1986). On March 15,
1983 Defendant suspended Plaintiff without notice or
opportunity to be heard and on May 1, 1983 Plaintiff was
terminated. Complaint £5.13. The stated reason for
Plaintiff’s termination was his frequent unavailability
for work and his criminal conviction. Complaint 5.15.

Ewistence of Genuine Issucs of Material Fact

Summary judgment is proper when pleadings and evi-
dence on file show that no genuine issue exists as to any
material fact and the moving party is entitled to judg-
ment as a matter of law. Fed. R. Civ. P. 56. The sub-

17a

stantive law determines which facts are material. Ander-
son v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986).
Disputed fac.s unnecessary to the cause of action will not
be considered. /d.

The elements of Plaintiff’s cause of action for violating
the Act are as follows: (1) Plaintiff is a protected em-
ployee under the Act; (2) Defendant is subject to the
Act; and (3) Defendant violated its duty under the Act
when it hired Plaintiff on probationary status rather
than permanent status. The first two elements are not in
dispute. Compare Complaint °€ 5.5, 4.2 with Brief in
Support of Defendant’s Motion to Dismiss and Motion
for Summary Judgment ‘ II.A.3., 4. The third element
is a legal issue.

Defendant's Entitlement to Judgment as a Matter of Law

The question before the Court is whether hiring the
Plaintiff on probationary status circumvents the right of
first hire provided in the Act. Defendant contends that
its duty was satisfied once Plaintiff was hired. Plaintiff
contends that hiring him on probationary status nullifies
the protection afforded by the Act, because he could be
terminated without cause at any time during the one year
probationary period.

The Act provides that

lelach person who is a protected employee of an air
carrier which is subject [to this Act] who is .
terminated by such an air carrier (other than for

cause) ... shall have first right of hire, regardless
of age, in his occupational specialty, by any other
air carrier hiring additional employees. ... Each

such air carrier hiring additional employees shall
have a duty to hire such a person before they hire
any other person.

The legislative history of the Act does not specifically
address the scope of the duty to hire. As introduced,

18a

the House version of the Act (HR 12611) required the
protection afforded to airline workers to be no less favor-
able than that afforded to railway workers under the
Interstate Commerce Act $ 5(2)(f) and the Rail Pas-
senger Service Act $ 405. Interstate Commerce Act, 49
U.S.C. § 11347 and Rail Passenger Service Act, 45 U.S.C.
$$ 565(a) and (bh); see Alaska Airlines, Inc. v. Brock,
480 U.S. ——-, 108 S.Ct. , 94 L.Ed.2d 661, 676
(1987). These statutes referred to in the House bill
specify that railway workers are protected from a
worsening of their employment position as a result of
action taken pursuant to these statutes. However, the
final version of the Act did not contain language referring
to the broad protections afforded employees under the
Interstate Commerce and the Raii Passenger Service Act.

The regulations promulgated by the Secretary of Labor
pursuant to the grant of authority in the Act for adminis-
tering the duty of hire refer to thees provisions as the
“Rehire Program.” 29 C.F.R. § 220.02 (1986). The
regulations specify that the covered air carrier has the
duty to hire a protected employee before it hires any
other applicant. /d. $ 220.20(a). The protected employee
must meet the qualification requirements established by
the air carrier, other than those qualifications concerning
initial hiring age or recall rights. Jd. $ 220.21(a).

The Act specifically refers to the air carrier’s duty to
hire protected employees before other applicants. Where
possible, courts interpret the words of statutes “in their
ordinary, everyday sense.” Malat v. Riddell, 383 U.S.
569, 571 (1965); Russello v. United States, 464 U.S. 16,
21 (1983). To overcome this general rule, “there must be
something to make plain the intent of Congress that the
letter of the statute is not to prevail.” Crooks v. Harrel-
son, 282 U.S. 55, 60-61 (1930). With this Act there is
no indication that Congress intended for the phrase “duty
to hire’ to imply protection beyond hiring. Indeed, the
legislative history indicates that the House proposed argu-
ably broader employee protections, but then omitted these

19a

broader protections from the final Act.’ Congress’ intent
to limit the employment protection to a hiring preference
can be inferred from their deleting the broader language
in the final Act. See Russello v. United States, 464 U.S.
16, 23-24 (1983).

Thus, the Court concludes the plain language of the Act
and the regulations promulgated pursuant thereto imposed
on Defendant a duty to hire Flaintiff as an employee pro-
tected under the Act. Once hired, Defendant owed no
greater duty to Plaintiff than to other newly hired pilots.
Defendant hires all pilots for a one year probationary
period. Collective Bargaining Agreement, supra. During
this probationary period, pilots can be terminated at De-
fendant’s discretion. Thus, the Court need not reach the
issue of whether Plaintiff was terminated for just cause.

Conclusion

Plaintiff was lawfully terminated. There is no genuine
issue of material fact and Defendant is entitled to judg-
ment as a matter of law. Accordingly, Defendant’s Mo-
tion for Summary Judgment is GRANTED.

SO ORDERED.

DATED: October 20, 1987.

s/ Barefoot Sanders
BAREFOOT SANDERS
Acting Chief Judge
Northern District of Texas

'Some members of the House perceived that the final version of
the Act as passed reduced the employment protection as provided
in the earlier House version. Representative Anderson stated “[t]he
House provisions on employee protection . . . were stronger than
those in the [final Act].” Alaska Airlines, Inc. v. Donovan, 766 F.2d
1550, 1562 n.10 (D.C. Cir. 1985), citing 124 Cong. Rec. 38,522
(1978). Representative Mineta stated that “[b]y comparison with
the House-passed provision, the [final Act] is not much protection
at all.” Jd., citing 124 Cong. Rec. 38,524-25 (1978).

20a
APPENDIX E

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Civil Action No. 3-83-2017-H

DANIEL P. HULSEY,
Plaintiff
VV;

USAR, INC.,
Defendant

ORDER

Pursuant to the request set forth in the Status Report,
filed April 23, 1986, the Stay Order previously entered
will continue in effect until further orders of the Court.

Counsel are directed to file a status report October
14, 1986.

SO ORDERED.
DATED: April 25, 1986.

/s’ Barefoot Sanders
BAREFOOT SANDERS
United States District Judge

2la
APPENDIX F
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Civil Action No. 3-83-2017-H

DANIEL P. HULSEY,
Plaintiff
V.
USAIR, INC.,
Defendant

ORDER

Before the Court is a Status Report, filed December
9, 1985.

Counsel are directed to file another status report April
7, 1986, setting forth the status of the related District
of Columbia litigation, with recommendations for the
disposition of this case. The Stay Order previously en-
tered will remain in effect.

SO ORDERED.

DATED: December 27, 1985.
s Barefoot Sanders

BAREFOOT SANDERS
United States District Judge

22a
APPENDIX G

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Civil Action No. 3-83-2017-H

DANIEL P. HULSEY,
Plaintiff

V.

USAIR, INC.,
Defendant

ORDER

Before the Court is a Second Status Report, filed
August 16, 1985.

As requested by the parties, the Stay Order previously
issued will continue in effect.

Counsel are directed to file a report December 9, 1985,
concerning the status of the related litigation in the
District of Columbia.

SO ORDERED.

DATED: August 19, 1985.

s’ Barefoot Sanders

BAREFOOT SANDERS
United States District Judge

23a
APPENDIX H

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Civil Action Number CA3-83-1017-H

DANIEL P. HULSEY,
Plaintiff

V.

USAR, INc.,
Defendant

AGREED ORDER

Came on to be considered the Motion to Stay urged
jointly by Plaintiff and Defendant in this cause pending
a decision by the District of Columbia Court of Appeals
in the case styled Alaska Airlines, Inc., ef al v. Donovan,
et al, presently pending before that court, where in the
constitutionality of Section 43 of the Airline Deregula-
tion Act, Public Law No. 95-504, 92 Stat. 1705 (1978),
is in issue. Since Plaintiff’s cause of action is founded
upon said statutory provision found unconstitutional by
the district court in the above-styled cause, it is the opin-
ion of the Court that the Motion for Stay is well founded;
and

IT IS THEREFORE ORDERED that all proceedings
in this cause shali be stayed pending a decision by the
United States Court of Appeals for the District of Colum-
bia in Alaska Airlines, Inc., et al v. Donovan, et al, and
this cause is hereby removed from the Court’s trial docket
for November 19, 1984.

24a
SIGNED AND ENTERED this 15 of October, 1984.

S/ Barefoot Sanders
United States District Judge
AGREED:

s° William C. Strock
WILLIAM C, StRocK
Haynes and Boone
4300 InterFirst Two
Dallas, Texas 75270
214/744-0550
Attorneys for Defendant,
USAir, Ine.

s Hal K. Gillespie
HAL K. GILLESPIE
Hicks, Gillespie, James and
Lesser
1341 W. Mockingbird Lane
Suite T04E
Dallas, Texas 75247
214 630-8621

Attorneys for Plaintiff.
Daniel P. Hulsey

25a
APPENDIX I
$1552. Employee protection program

(a) General rule

(1) The Secretary of Labor shall, subject to such
amounts as are provided in appropriation Acts, make
monthly assistance payments, or reimbursement pay-
ments, in amounts computed according to the provisions
of this section, to each individual who the Secretary finds,
upon application, to be an eligible protected emplovee,
An eligible protected employee shall be a protected em-
ployee whe an account of a qualifying dislocation «A
has been deprived of employment, or (B) has been ad-
versely affected with respect to his compensation.

(2) No employee who is terminated for cause shal!
receive any assistance under this section,

(b) Monthly assistance computation

(li An eligible protected employee shall, subject to
such amounts as are provided in appropriation Acts. ye-
ceive a monthly assistance payment, for each month in
Which he is an eligible protected employee, in an amoun:
computed by the Secretary. The Secretary, after con-
sultation with the Secretary of Transportation, shall, by
rule, promulgate guidelines to be used by him in de-
termining the- amount of each monthly assistance pay-
ment to be made to a member each craft and class of
protected employees, and what percentage of salary such
payment shail constitute for each applicable class or
craft of employees. In computing such amounts for any
individual protected emplovee, the Secretary shall deduct
from such amounts the full amount of any unemployment
compensation received by the protected employee.

(2) If an eligible protected employee is offered reason-
ably comparable employment and such employee does not

26a

accept such employment, then such employee’s monthly
assistance payment under this section shall be reduced
to an amount which such employee would have been *
entitled to receive if such employee had accepted such
employment. If the acceptance of such comparable em-
ployment would require relocation, such employee may
elect not to relocate and, in lieu of all other benefits pro-
vided herein, to receive the monthly assistance payments
to which he would be entitled if this paragraph were not
in effect, except that the total number of such payments
shall be the lesser of three or the number remaining pur-
suant to the maximum provided in subsection ‘e) of this
section.

(e) Assistance for relocation

If an eligible protected employee relocates in order to
obtain other employment, such employee shall, subject to
such amounts as are provided in appropriation Acts, re-
ceive reasonable moving expenses (as determined by the
Secretary) for himself and his immediate family. In
addition, such employee shall, subject to such amounts as
are provided in appropriation Acts, receive reimburse-
ment payments for any loss resulting from selling his
principal place of residence at a price below its fair
market value (as determined by the Secretary) or any
loss incurred in cancelling such employee’s lease agree-
ment or contract of purchase relating to his principal
place of residence.

(di Duty to hire protected employees

(1) Each person who is a protected employee of an air
‘ayrier which is subject to regulation by the Civil Aero-
nautics Board who is furloughed or otherwise terminatec
by such an air carrier (other than for cause) prior to
the last day of the 10-year period beginning on October
24.1978 shall have first right of hire, regardless of age,
in his occupational specialty, by any other air carrier
hiring additional employees which held a certificate is-

21a

sued under section 1871 of this title prior to October 24,
1978. Each such air carrier hiring additional emp.oyees
shall have a duty to hire such a person before they hire
any other person, except that such air carrier may recall
any of its own furloughed employees before hiring such a
person. Any employee who is furloughed or otherwise
terminated (other than for cause), and who is hired by
another air carrier under the provisions of this subsec-
tion, shall retain his rights of seniority and right of
recall with the air carrier that furloughed or terminated
him.

(2) The Secretary shall establish, maintain, and _ pe-
riodically publish a comprehensive list of jobs available
with air carriers certificated under section 1371 of this
title. Such list shall include that information and detail,
such as job descriptions and required skills, the Secre-
tary deems relevant and necessary. In addition to pub-
lishing the list, the Secretary shall make every effort to
assist an eligible protected employee in finding other em-
ployment. Any individual receiving monthly assistance
payments, moving expenses, or reimbursement payments
under this section shall, as a condition to receiving such
expenses or payments, cooperate fully with the Secretary
in seeking other employment. In order to carry out his
responsibilities under this subsection, the Secretary may
require each such air carrier to file with the Secretary
the reports, data, and other information necessary to ful-
fill his duties under this subsection.

(3) In addition to making monthly assistance or reim-
bursement payments under this section, the Secretary
shall encourage negotiations between air carriers and
representatives of eligible protected employees with re-
spect to rehiring practices and seniority.

(e) Period of monthly assistance payments

(1) Monthly assistance payments computed under sub-
section (b) of this section for a protected employee who

28a

has been deprived of employment shall be made each
month until the recipient obtains other employment, or
until the end of the 72 months occuring immediately after
the month such payments were first made to such re-
cipient, whichever first occurs.

(2) Monthly assistaiuce payments computed under sub-
section (b) of this section for a protected employee wh
has been adversely affected relating to his compensation
shall be paid for no longer than 72 months, so long as
the total number of monthly assistance payments made
under this section for any reason do not exceed 72.

(f) Rules and regulations

(1) The Secretary may issue, amend, and repeal such
rules and regulations as may be necessary for the ad-
ministration of this section.

(2) The rule containing the guidelines which is re-
quired to be promulgated pursuant to subsection (by of
this section and any other rules or regulations which the
Secretary deems necessary to carry out this section shall
be promulgated within six months after October 24, 1978.

(3) The Secretary shall not issue any rule or regula-
tion as a final rule or regulation under this section until
30 legislative days after it has been submitted te the
Committee on Commerce, Science, and Transportati + of
the Senate and the Committee on Public Works and
Transportation of the House of Representatives. Any
rule or regulation issued by the Secretary under this sec-
tion as a final rule or regulation shall be submitted to
the Congress and shall become effective 60 legislative
days after the date of such submission, unless during
that 60-day period either House adopts a resolution stat-
ing that that House disapproves such rules or regula-
tions, except that such rules or regulations may become
effective on the date, during such 60-day period, that a
resolution has been adopted by both House stating that
the Congress approves of them.

29a

(4) For purposes of this subsection, the term "legisla-
tive day” means a calendar day on which both Houses of
Congress are in session.

(g) Airline employees protective account

All payments under this section shall be made by the
Secretary from a separate account maintained in the
Treasury of the United States to be known as the Airline
Employees Protective Account. There are authorized to
be appropriated to such account annually, beginning with
the fiscal year ending September 30, 1979, such sums as
are necessary to carry out the purposes of this section,
including amounts necessary for the administrative ex-
penses of the Secretary related to carrying out the pro-
visions of this section.

(h) Definitions
For the purposes of this section—

(1) The term “protected employee” means a per-
son who, on October 24, 1978, has been employed for
at least 4 years by an air carrier holding a certificate
issued under section 1371 of this title. Such terrn
shall not include any members of the board of direc-
tors or officers of a corporation.

(2) The term “qualifying dislocation” means a
bankruptey or major contraction of an air carrier
holding a certificate under section 1371 of this title,
occurring during the first 10 complete calendar years
occurring after October 24, 1978, the major cause of
which is the change in regulatory structure provided
by the Airline Deregulation Act of 1978, as deter-
mined by the Civil Aeronautics Board.

(3) The term “Secretary” means the Secretary of
Labor.

(4) The term “major contraction” means a reduc-
tion by at least 7!. percent of the total number of

30a

full-time employees of an air carrier within a 12-
month period. Any particular reduction of less than
7!., percent may be found by the Board to be part of
a major contraction of an air carrier if the Board
determines that other reductions are likely to occur
such that within a 12-month period in which such
particular reduction occurs the total reduction will
exceed 7!., percent. In computing a 7!'.-percent re-
duction under this paragraph, the Board shall not
include employees who are deprived of employment
because of a strike or who are terminated for cause.

({) Transfer of authority of Board

The authority of the Board under this section is trans-
ferred to the Department of Transportation on January
1, 1985.

(j) Termination

The provisions of this section shall terminate on the
last day the Secretary is required to make a payment
under this section.

(Pub. L. 95-504, £ 43, Oct. 24, 1978, 92 Stat. 1750.) ~

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0133%3A1. Public record. Not legal advice.