UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) F IELD McCONNELL, ) ) P laintif f, )

) v. ) Civil Action No. 08-1600 (RMC) ) AIR LINE P ILOT S’ ASSO CIATION, INTERNATIONAL, ) ) ) Defendan t. ) )

MEMORAN DUM OP INION Pilot Field Mc Connell, procee ding pro se , alleg es that the Air L ine Pilots ’ Association, International, (“ALPA”) bre ache d its duty of fa ir repr esentation by

failingto repr esent him proper ly

in the g rieva

nce pr ocess with his forme r employ er, N orthwest Airlines, I nc. AL PA filed a motion for summary judgme nt. Be cause the Complaint is t ime-bar red unde r the applica

ble statute of limitations, summ ary judgme nt will be gr anted in fa vor of AL PA. I. F ACTS Mr. McConnell was e mploy ed as a pilot with Northwest Airlines, I nc. (“NWA”). I n November

of 2006, he w ent on sick leave. Pursuant to the collec tive barg aining ag ree ment betwee n NWA and its pilot s, NWA could order a pilot who was on sick lea ve for more than 60 day s to submitto a medica l exam. The collective ba rg ainingagree ment provided: B. 1. I f the Company

has re asonable cause to believe that a pilot has deve loped a medic al impairment to his ability to perfor m his duties betwee n the routine medic al examinations required by the Fe dera l Aviation Administ ration (F AA), the Company may requiresaid pilot to subm it to a medical examination from a non- AME 1 medical doc tor chosen by the Company . The Company will be entitled to: (i) submit t o the medica l doctor a written explanation of the circ umstances g iving r ise to the reque st for an e x amination, and/or (ii) r equire that the pilot submi t to an examination by any non-AME spec ialist(s) rec ommended by such doctor.

. . . Note: This Parag raph B . shall not preclude the Company from requiringa pilot to submi t to a medical e x amination under the following circ umstances: (i) a pplication for disability

retire ment; (ii) initial Captain chec kout; (iii) election for c ontinued flying a s a Second Of

fice r beyond the re g ulated ag e (se e Section 24 M); and (iv) a pilot who is on sick leave or medica l leave of absenc e for

60 or more c onsecutive da

y s. Def .’s Mot. for Summ. J . [Dkt. # 28] , Plunkett Decl., Ex. 1 (Col lective B arg aining Ag ree ment §15, ¶ B .1). I n J anuar

y of 2007, af

ter Mr. Mc Connell had bee n on sick leave for more than six ty day s, NWA ordere d him to underg o a medica l examination. M r. McConnell objec ted to taking the exam, and he soug ht assistance f rom AL PA. Mr. McConnell contende d that NWA lacke d rea sonable c ause to orde r such a medical e x am. Despite his objec tion, Mr. McConnell repor ted for the exam on J anuar y 31, 2007. After

that exam, NWA directed Mr. Mc Connell to submit t o an additional examination by a neur o-psy cholog ist, Dr. Elliot, i n L os Ang eles on Marc h 1 and 2, 2007. Mr. Mc Connell did not attend the Marc h 1 and 2 appointment.

NWA wrote to Mr. McConne ll that due to his failure to attend the Marc h 1 and 2 appointment, NWA removed Mr . McConnell from sick lea ve status ef

fec tive Marc h 2, 2007, pending Mr. McConnell’s complianc e with the medica l exam requirement. SeePlunkett Decl.,

An AME doctor is an aer o medical doctor cer tified by the Fe dera l Aviation Administration 1 to determine pilots’ fitness for flying. Compl. ¶ 12.

-2-Ex . 4 (Mar . 13, 2007 letter). N WA resche duled the appointment with Dr. Elliott to March 26,

2007. I nstead of attending the resc heduled a ppointment, Mr. McConnell retired on Ma rch 13, 2007. Id ., Ex . 5 (June 7, 2007 email); see also id ., Ex . 6 (June 29, 2007 email).

Mr. McConnell dec ided that he wa nted to g rieve his removal fr om pay roll eff ective Ma rch 2. A L PA is the collective ba rg aining repr esentative of pilots employ ed by NWA. On J une 30, 2007, AL PA filed a grieva nce on his be half. An A L PA attorney , Robert Plunkett, filed the g rieva

nce. T he g rieva

nce a lleg ed that Mr. Mc Connell “did not rece ive any direc tive or direc tion to see Dr. Elliott” and that he lear ned of the Marc h 1 and 2 appointment via the Marc h 13 letter fr om NWA. Id ., Ex . 11 (Pre- Grieva nce N o. PGR-1943-07). As a reme dy , the g rieva nce r equeste d that NWA pay Mr. McConnell sick leave fr om March 2, 2007 until his retire ment on Marc h 13, 2007, and to re calc ulate his pension bene fits to include this sick leave. Id

. Whil e Mr. Mc Connell claims he neve r re ceive d written notice of the Marc h 1 and 2 appointment with Dr. Elliott, seeCompl. ¶ 20, the rec ord shows that Mr. McConne ll actually knew of the orde red e x am and the sc heduled Ma rch dates. Mr. McConnell noted in a F ebrua ry 6, 2007 email, “I

am beingsent to L A to see a “neur o-psychiatrist” a

nd “[t] he appointment is set for 1 and 2 Mar ch.” Plunkett Dec l., Ex . 3 (F eb. 6, 2007 ema il).

On J uly 3, 2007, Mr. McConnell copied Mr . Plunkett on an email to another person, indicating that Mr. Mc Connell wanted to be ( 1) compe nsated a t the pay rate of a 747- 400 airc raf t pilot unt il he turned 65 or ( 2) re stored to fly ing. Id ., Ex . 12 (Jul y

3, 2007 email). Mr. Plunkett responded to Mr. McConnell, explaining that the grieva nce that AL PA filed for him

cover ed bac k pay

from Mar ch 2 to Marc h 13 when Mr. Mc Connell retired. “ We have f iled no

-3-claim for pa y at 400 rates until y ou would turn 65 as you voluntarily retire d and no cla im can be broug ht.” Id

. On J uly

8, 2007, Mr. McConnell sent an e mail to Mr. Plunkett, s tating that he wanted to c ance l his grie vance as follows:

Please c ance l my

g rieva nce. I had re quested to be r eturne d to flying or be paid out to re tirement ag e. I do not consider 6 da

y s pay adequa te. I spoke with a DO J officia l who sug g ested I consider a

Qui Tam filing . Ihave loc ated a QT attorne y

and I anticipate a

meeting with FB II ntel fairly soon. Please advise NWA leg al of this reque st to cance l. Id ., Ex . 13 (Jul y

8, 2007 email). Mr. Mc Connell followed this up with a formal letter , stating “ it is my demand that my

g rieva nce a g ainst NWA be dropped in that it is totally inadequate and contra ry to my written instructions.” Id ., Ex . 15 (Jul y 10, 2007 letter); see also id ., Ex . 17 (Jul y 12, 2007 email) (“ AL PA had offe red to g rieve my remova l from pay

without cause. H oweve r, I had an immediate family

member ( DOJ) see the c ommunication trail on this and she sug g ested another reme dy . AL PA was kind enough to abort the g rieva nce.” ). Mr. McConnell filed this suit on S eptember 17, 2008, alleg ing that AL PA failed to properly

repr esent him in the g rieva nce pr ocess a

nd that AL PA permitted “Plaintiff to be subjected to unfa ir and biase d treatment by NWA,” there by

causingPlaintiff to incur the loss of his employ

ment at NWA. I n other wor ds, the Complaint allege s that AL PA brea ched its duty of fair r epre sentation by

failing to pursue Mr. Mc Connell’s g rieva nce a g ainst NWA. 2

Mr. M cConnell also alleg es that he complained to NWA reg arding safe ty conce rns, that 2 modific at i o n s have been made to Boe ing airplane s that are unsafe and illega l, and that this is the cause of various airp l an e cra shes. See Compl. ¶¶ 26-29. He also alleg es that Boe ing illega lly exported milit ary technolog y reg arding the QRS 11 Gy rochips. Id

. ¶ 27. NWA and Boe ing are not parties to this suit, and thus, these alleg ations are not rele vant t o M r. M cC o n n ell’s suit ag ainst AL PA. -4-AL PA moved for summary judgme nt. SeeDef

.’s Mot. for Summ. J . [Dkt. 28]

. Mr. McConnell objects a

nd moves for summar

y judgme nt in his own favor. SeePl.’s Opp’ns [Dkt. ## 30 & 33]. II. ST ANDAR D F OR SUMMAR

Y JUDG MENT Under Rule 56 of the F eder al Rules of Civil P roce dure, summar y judgme nt shall be g rante d “if the mova

nt shows that there is no g enuine dispute a s to any materia l fac t and the movant is entitled to judgeme nt as a matter of law.” Fe d. R. Civ. P . 56(a) ; accord Ande rson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). More over, summar y judgme nt is properly

g rante d ag ainst a par

ty who “a fter a dequate time for discove ry and upon motion . . . fails to make a showing sufficie nt to establish the exi stence of an e lement essential to that par ty ’s ca se, and on which that par

ty will bear the burden of

proof a t trial.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). I n ruling on a motion for summary judgme nt, the court must drawall justifiable infere nces in the nonmovingparty ’s favor and a cce pt the nonmoving pa rty ’s evidenc e as true

. Anderson , 477 U.S. at 255. A nonmoving pa rty , howeve r, must establish more than “ the mere exis tence of a sc intill a of e vidence ” in support of its position. Id. at 252. In addition, the nonmoving pa

rty may not rely solely on alleg ations or conc lusory statements. Gree ne v. D alton , 164 F.3d 671, 675 ( D.C. Cir. 1999). Rather, the nonmovingparty must present spec ific fa cts that would enable a re asonable jury to find in its favor. Id. at 675. I f the e vidence “is mere ly colora ble, or is not signific antly probative, summar

y judgme nt may

be g rante d.” Anderson , 477 U.S. at 249-50 (c itations omi tted).

-5-III. ANALYSIS Duty of fa ir repr esentation claims made under Section 10(b) of

the National L abor Relations Act (“ NL RA”), 29 U.S.C. § 160(b), a re subjec t to a six -month statute of limitations. DelCostello v. Int’l Bhd. of Teamsters , 462 U.S. 151, 169-72 (1983) ( six -month limi tations period found in the N L RA applies to hy brid suit ag ainst the union and the e mploy er) ; see also Georgev. Local 639 , 100 F.3d 1008, 1014 ( D.C. Cir. 1996) (six -month statute of limitations applies to suits where only the union is sued). Ever

y circ uit that has addre ssed the issue has he ld that the six -month statute of limitations also applies to cases under the Railway

L abor A ct (“RLA”) , 45 U.S.C. §§ 151-188. See, e .g., Ramey v. Dist. 141 Int’l Ass’n of Mac hinists , 378 F.3d 269, 277- 78 (2d Cir. 2004); W ood v. Houston Belt &Terminal Ry ., 958 F.2d 95, 97 ( 5th Cir. 1992); Lea v. Re

public Airlines, Inc ., 903 F.2d 624, 633 n.13 ( 9th Cir. 1990) (collec ting c ases from numer ous circuits). B eca use AL PA is a labor org anization under the RL A, the statute of limit ations applicable to a RL A claim applies he re.

I n a duty of fa ir repr esentation case, the six -month statute of limitations begins to run whe n the claimant discove rs, or in the e x erc ise of re asonable diligenc e should discover , the acts that for

m the basis of his claim. W ood , 958 F.2d at 97; see also W atkins v. Commc’n W orkers of Am. , 736 F. Supp. 1156, 1160 (D.D .C. 1990) (timeliness is measured f rom when the employ ee kne w or should have known of the la st action taken by the union which constituted the alleg ed bre ach of

duty of fa ir repr esentation). Thus, in a ca se whe re the claimant conte nds that the union improperly

abandone d his gr ievanc e, the six-month period beg ins to run when the employ ee kne w or should have known that the union had stopped pur suing his g rieva nce. Cephas v. MVM

, Inc. , 520 F.3d 480, 488 ( D.C. Cir. 2008) (citing Sanders v. Hughe s, Aircraft

-6-Co. , 26 F.3d 132 ( Table) , 1994 WL227971 (9th Cir. 1994)). The duty of fa ir repr esentation claim in this case is based on AL PA’s alleg ed failure to pursue Mr. Mc Connell’s J une 30, 2007 g rieva nce. Mr . McConnell, howeve r, direc ted AL PA to withdraw his g rieva nce via a Jul y 8, 2007 email and c onfirmed his desire to withdraw the g rieva nce in a letter dated J uly

10, 2007. On J uly

12, 2007, Mr. McConnell noted in an e mail that “AL PA was kind enoug h to abort the g rieva nce.” Plunkett Decl., Ex. 17 (J uly 12, 2007 email). Thus, by

at least July

12, 2007, Mr. McConnell knew that AL PA was no long er pur suing his gr ievanc e. He had six months from the time he knewor should have know n that AL PA stopped pursuing his gr ievanc e to bringsuit. Thus, Mr. McConnell neede d to file suit ag ainst AL PA reg ardinghis breac h of duty of fa ir repr esentation claim no later than January 12, 2008. He did not file this suit unti l September 17, 2008, we ll after the statute of limitations had ex pired. Be cause this suit is barre d by the statute of limitations, the moti on for summary judgme nt will be g rante d and the Complaint will be dismis sed. 3 IV. CONCLUSION Acc ording ly , AL PA’s motion for summary judgme nt [ Dkt. # 28] wil l be g rante d. A memorializing Or der a ccompa nies this Memorandum Opinion.

Date: January

24, 2011 /s/ ROSEMARY M. COL L YER United States District J udg e

Fur ther, to establish a br eac h of the duty of fa ir repr esentation, a plaintiff must show that 3 the union’s conduct was arbitra ry , discriminatory , in bad faith, or otherwise unrelated to leg itimate union objectives. Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emp. v. Lockridge , 403 U.S. 274, 299-301 (1971). Here, ALPA stopped pursuing Mr. McConnell’s g rieva nce when Mr. McConnell reque sted that the g rieva nce be withdrawn.

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