In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1518

LOUIS W. MILLER AND RICHARD J. ROYALS,

Plaintiffs-Appellants,

v.

AMERICAN AIRLINES, INC.,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 7756—Sidney I. Schenkier, Magistrate Judge.

____________

ARGUED NOVEMBER 7, 2007—DECIDED MAY 5, 2008

____________

Before POSNER, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Plaintiffs Louis Miller and

Richard Royals, ages eighty and seventy-five years old

respectively, have sued their former employer, American Airlines, Inc. for failing to offer them a position with

salary comparable to that of their previous job of flight

engineer, which they held until May of 2002. Because the

arbitrator determined that the collective bargaining

agreement did not entitle the plaintiffs to positions of

equal pay and the plaintiffs also have not shown that

their age was the reason that they were offered inferior
2 No. 07-1518

positions, summary judgment was appropriate on their

claims under the Age Discrimination in Employment

Act (“ADEA”). Additionally, the plaintiffs cannot challenge the facial validity of the collective bargaining agreement because this claim was not properly raised in their

charges filed with the Equal Employment Opportunity

Commission (“EEOC”). Therefore, we affirm the grant of

summary judgment in favor of American Airlines in its

entirety.

I. BACKGROUND

In the 1950s, the plaintiffs began working as flight

engineers for American Airlines. American Airlines

historically operated aircrafts that required three individuals in the cockpit—the captain, first officer, and the

flight engineer. As technology became more advanced,

there was less need for flight engineers to occupy the

third seat in the cockpit. Additionally, airlines began

hiring certified pilots, rather than flight engineers, to

occupy the third seat. In 1964, American Airlines and its

two employee unions entered into a collective bargaining

agreement, the Tripartite Agreement (“Agreement”), that

preserved the rights of then-current flight engineers to

occupy the third seat of a three crew aircraft, but also

recognized the right of American Airlines to no longer

hire flight engineers. In the years following the agreement, American Airlines began to retire its three-crew

aircraft, and in 1983, the Agreement was amended to reflect

this change. The new provision, Supplement U, provides

that:

In the event a surplus of flight engineers exists, each

flight engineer so affected, who is qualified or train-
No. 07-1518 3

able, will be guaranteed placement within the Company [American Airlines] . . . . At the time of his

placement, the employee’s monthly salary will be

fixed based on the average of his earnings for the

previous twelve (12) months as a flight engineer. If

the employee’s average monthly earnings as a flight

engineer exceed the total monthly compensation

actually earned in his new job, the employee will be

paid such flight engineer’s guaranteed monthly earnings. Such guarantee will be in effect until his normal

flight engineer retirement date, and thereafter, his

salary will be governed by the compensation plan

applicable to the new position.

Supplement U was negotiated due to concerns that new

technology would make flight engineers obsolete prior

to the vesting of their pensions. The provision was designed to ensure that flight engineers would continue to

receive the flight engineer rate of pay until the “normal

flight engineer retirement date,” which the American

Airlines’ Retirement Benefit Plan sets as age sixty-five.

In May 2002, American Airlines grounded the last of its

three crew airplanes, and the plaintiffs and one other

individual were the only three active flight engineers at

the time. Prior to the grounding of the fleet, American

Airlines sent the three remaining flight engineers a letter

offering them staff assistant positions in its publications

department, positions which paid $100,000 less than

their salaries as flight engineers. At that time of this

offer, plaintiff Royals was seventy years old and plaintiff

Miller was seventy-five years old.

The plaintiffs filed charges with the EEOC against

American Airlines, alleging that they were discriminated
4 No. 07-1518

against because of their age in violation of the ADEA, 29

U.S.C. § 621 et seq., when the defendant did not offer them

a position of comparable salary which, they maintained,

was required by Supplement U of the Tripartite Agreement. The plaintiffs filed suit, and the district court

initially found that the plaintiffs’ claims involved a

minor dispute over terms in a collective bargaining agreement and therefore were preempted by the Railway

Labor Act (“RLA”), 45 U.S.C. § 151 et seq. The district

court then ordered the case stayed until the parties completed arbitration.

During arbitration, the plaintiffs filed a grievance

with American Airlines, making essentially the same

allegations that they made in their ADEA complaint. The

arbitrator determined that the grievance was untimely

because it was filed more than 90 days after the occurrence being grieved. The arbitrator further determined

that American Airlines was not obligated by Supplement U to offer alternative employment at a salary comparable to that of a flight engineer. The American Airlines’

Retirement Benefit Plan provides that the normal retirement age is sixty-five, and the arbitrator found that the

plaintiffs were only guaranteed flight engineer pay until

that age.

Following the arbitration decision, the district court

granted the defendant’s motion for summary judgment.

The district court adopted the arbitrator’s findings that

Supplement U did not guarantee flight engineer pay

past the age of sixty-five. It also found that the plaintiffs’

claim that Supplement U was facially discriminatory fell

outside the scope of their EEOC charge, and even if the

merits could be reached, the claim failed because there

was no evidence that Supplement U was motivated by

a discriminatory purpose. The plaintiffs appeal.
No. 07-1518 5

II. ANALYSIS

A. Summary judgment was appropriate on the ADEA

claim because there was no guarantee of comparable pay after the age of sixty-five.

We review the district court’s grant of summary judgment de novo, viewing the record and all reasonable

inferences drawn from it in the light most favorable to the

party opposing the motion. Peirick v. Ind. Univ.-Purdue

Univ. Indianapolis Athletic Dep’t, 510 F.3d 681, 687 (7th

Cir. 2007). Summary judgment is appropriate only when

the materials before the court demonstrate “that there is

no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). To prevail on their ADEA claim,

the plaintiffs must prove that they were discriminated

against in the terms and conditions of their employment

because of their age, 29 U.S.C. § 623. Hoffmann v. Primedia

Special Interest Publ’ns., 217 F.3d 522, 525 (7th Cir. 2000)

(“To succeed in an ADEA claim, a plaintiff must establish

that he would not have received adverse treatment but

for his employer’s motive to discriminate on the basis of

his age.”) (internal citations omitted). The plaintiffs do not

have to show, however, that their age was the sole motivation for the employer’s decision; it is sufficient if age

was a “determining factor” or a “but for” element in the

decision. Anderson v. Stauffer Chem. Co., 965 F.2d 397,

400 (7th Cir. 1992).

The plaintiffs’ first claim can be characterized as an “as

applied” challenge to Supplement U. The plaintiffs contend that American Airlines discriminated against them

in the terms and conditions of their employment by failing to provide them with comparable pay as required

by Supplement U of the Tripartite Agreement. Supple-
6 No. 07-1518

ment U states in relevant part that: “Such guarantee [of a

flight engineer’s guaranteed monthly earnings] will be in

effect until his normal flight engineer retirement date and,

thereafter, his salary will be governed by the compensation plan applicable to the new position.” (Emphasis

added.) In the arbitration proceedings, the arbitrator

interpreted this sentence to mean that following the

termination of the flight engineer positions, the collective bargaining agreement did not guarantee positions

of comparable pay to the plaintiffs after they reached

normal retirement age of sixty-five.

The district court deferred to the arbitrator’s interpretation of this key language, correctly finding that resolution of the plaintiffs’ ADEA claim is dependent upon the

interpretation of Supplement U of the Agreement and

therefore governed by the arbitration provisions of the

RLA. The RLA provides for mandatory arbitration over

labor disputes arising out of the interpretation of collective bargaining agreements in the railway and airline

industries. Hawaiian Airlines v. Norris, 512 U.S. 246, 252-53

(1994). The RLA defines two categories of disputes: “major

disputes” that “relate to ‘the formation of collective

[bargaining] agreements or efforts to secure them’ ” and

“minor disputes” that “grow out of grievances or out of

the interpretation or application of agreements covering

rates of pay, rules, or working conditions.” Id. The plaintiffs’ allegation that Supplement U requires a specific

rate of pay after the age of sixty-five is dependent upon

interpreting the phrase “normal flight engineer retirement date.” Thus, this particular claim was subject to the

arbitration provisions of the RLA, and we are bound by

the arbitrator’s interpretation that Supplement U does not

obligate American Airlines to provide comparable pay after
No. 07-1518 7

employees have reached the normal flight engineer retirement date. See Tice v. Am. Airlines, Inc., 288 F.3d 313, 318

(7th Cir. 2002) (“only the arbitral boards convened under

the aegis of the Railway Labor Act have the authority to

determine the rights conferred by a collective bargaining

agreement in the airline industry”).

This is not to suggest, however, that employees are

always precluded from bringing an ADEA claim in federal court if the dispute involves a collective bargaining

agreement. Generally, a plaintiff can file an ADEA lawsuit

in federal court that may be in some way related to a

collective bargaining agreement. However, if the success

of the claim is dependent upon an interpretation of the

collective bargaining agreement’s terms, the court cannot

consider it. See Brown v. Illinois Cent. R.R., 254 F.3d 654,

664 (7th Cir. 2001) (“[T]he best way to harmonize these

two statutes [the RLA and the ADA] is to allow a plaintiff employee to bring an ADA claim in federal court

against his employer (even if his employment is governed by a collective bargaining agreement which is subject to the RLA), unless the resolution of his ADA claim

requires the court to interpret the collective bargaining

agreement’s terms as a potentially dispositive matter.”);

Tice, 288 F.3d at 317 (providing that dismissal is appropriate where “a particular interpretation of the collective

bargaining agreement is potentially dispositive of a the

plaintiff’s claim”).

Here, the plaintiffs’ claim was dependent upon the

phrase “normal flight engineer retirement date” in Supplement U. The arbitrator’s interpretation of this phrase in

the collective bargaining agreement to mean that the

plaintiffs were entitled to flight engineer pay only until

the normal flight engineer retirement date and his sub-
8 No. 07-1518

sequent conclusion that such pay was not required to

continue following this date eviscerated the plaintiffs’

ADEA claims. See Tice, 288 F.3d at 317.

The plaintiffs contend that the arbitrator’s determinations have no bearing on their ADEA claim because their

claim is premised on the idea that Supplement U creates

a “benefit” that is part of the employment relationship,

a benefit that was withheld from the plaintiffs on the

basis of their age. This issue, according to the plaintiffs,

was not before the arbitrator nor was it considered by

the district court. There is no evidence, however, that the

plaintiffs had a contractual right to comparable pay after

the age of sixty-five under Supplement U, or in their

words, that they were entitled to a “benefit” created by

virtue of the employment relationship. While “an employee has both a contractual right by virtue of a collective bargaining agreement (or other employment

contract), and a statutory right to be free from discrimination,” Tice, 288 F.3d at 317, the plaintiffs point to no language in Supplement U, express or implied, that can

support their argument that American Airlines has discriminated against them by denying them positions of

comparable pay. The express language of Supplement U,

which guarantees flight engineer pay only until normal

retirement age, provides that salary will then “be governed

by the compensation plan applicable to the new position,”

language that is clearly contrary to their position. See

Miller v. Crystal Lake Park Dist., 47 F.3d 865, 867 (7th Cir.

1995) (“A ‘legitimate claim of entitlement’ is one that is

legally enforceable—one based on statutes or regulations

[or contracts] containing ‘explicitly mandatory language’

that links ‘specified substantive predicates’ to prescribed

outcomes.”) (internal citations omitted); Hohmeier v. Leyden
No. 07-1518 9

Cmty. High Sch. Dist. 212, 954 F.2d 461, 464 (7th Cir. 1992)

(“Property interests in employment may be created by

express or implied contracts, municipal ordinances or

state laws.”). Absent express language guaranteeing

positions of comparable pay, “an employer [has] no duty

[under the ADEA] to give another job to an employee

validly disqualified from holding his present job.” Tice,

288 F.3d at 315. Accordingly, we find that summary

judgment was appropriate on the plaintiffs’ “as applied”

challenge to Supplement U.

B. The plaintiffs’ facial discrimination claim was not

properly alleged in their EEOC charges.

Assuming arguendo that we can reach the issue of

whether Supplement U is facially discriminatory since,

unlike the “as applied” challenge, the arbitrator’s interpretation of Supplement U is not necessarily dispositive of a

facial challenge to this provision, see Brown, 254 F.3d at

664, the plaintiffs’ facial challenge to Supplement U is

still not properly before the court. A plaintiff generally

cannot bring a claim in an ADEA lawsuit that was not

alleged in the EEOC charge, and, while not a jurisdictional requirement, it is a prerequisite with which a

plaintiff must comply before filing suit. Cheek v. W. & S. Life

Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). This requirement

is to ensure that the employer has notice about the particular challenged conduct and provides an opportunity

for settlement of the dispute. Id. (citations omitted). A

plaintiff, however, may proceed on a claim not explicitly

mentioned in his EEOC charge “if the claim is like or

reasonably related to the EEOC charges, and the claim in

the complaint reasonably could be expected to grow out

of an EEOC investigation of the charge.” Id. (citing Peters
10 No. 07-1518

v. Renaissance Hotel Operating Co., 307 F.3d 535, 551 (7th

Cir. 2002) (internal quotations and citations omitted)). At

the very least, the claims should involve the same conduct and implicate the same individuals in order to be

considered “reasonably related” to the allegations in the

EEOC complaint. See Cheek v. Peabody Coal Co., 97 F.3d

200, 202-03 (7th Cir. 1996).

Generally, we apply a liberal standard in determining

if new claims are reasonably related to those claims

mentioned in the EEOC charge. Farrell v. Butler Univ.,

421 F.3d 609, 616 (7th Cir. 2005). Here, the plaintiffs

checked the ADEA box on their EEOC charge and

stated that they were “subjected to different terms and

conditions of employment” because they were “not offered

a position with a comparable salary as required by the TriPartite Agreement.” It is true that their claim that the

Tripartite Agreement is facially discriminatory involves

the same parties and the same facts as the other claim,

and the plaintiffs checked the relevant box. See Cheek,

97 F.3d at 200. Nevertheless, their argument that the

Tripartite Agreement requires that they be given positions

of comparable pay and they were denied these positions

because they were “beyond normal retirement age”

conveys that at most, the plaintiffs are alleging that Supplement U is being applied in a disparate manner. To now

challenge Supplement U as facially discriminatory,

which is a much broader claim than that alleged in the

EEOC charge, is also inconsistent with the plaintiffs’

allegations that American Airlines failed to do something

that Supplement U required. Cf. Farrell, 421 F.3d at 616

(finding that plaintiff’s statements in her EEOC charge

encompassed a claim of disparate impact where she

stated “I believe that there is an inherent or deliberate
No. 07-1518 11

bias against women faculty and, in this case, only two

women from the entire faculty would have met the

criteria for the award, yet many more men would have

been eligible.”). To allow the plaintiffs to proceed on their

facial challenge to Supplement U would take the “reasonably related” requirement much further than intended.

Additionally, the allegations in the plaintiffs’ EEOC

charges were not enough to put American Airlines on

notice that the plaintiffs were planning to lodge a facial

challenge against Supplement U. Geldon v. S. Milwaukee Sch.

Dist., 414 F.3d 817, 819 (7th Cir. 2005) (the rule that a

plaintiff may bring only those claims in her EEOC charge

is “meant both to give the EEOC and employer an opportunity to settle the dispute and to give the employer

fair notice of the conduct about which the employee is

complaining.”). In their respective EEOC charges, the

plaintiffs state, very generally, that they were subjected to

different terms and conditions of employment based on

age. They now seek to use this language as an opening to

pursue a legal theory that is certainly related, but not

foreseeable from the allegations made in the charge. See,

e.g., Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir.

2002) (stating that a plaintiff cannot make conclusory

statements of discrimination in her EEOC charge and then

file suit on whatever facts or legal theory she may later

decide upon). The EEOC charges filed by the plaintiffs

allege behavior that is considerably more narrow than

what the plaintiffs assert here; there is no notice to American Airlines that it may have to defend Supplement U

against a facial challenge. Therefore, we find that the

plaintiffs’ claim that Supplement U was facially discriminatory was not properly alleged in the EEOC charge,

and we need not reach the merits of this argument.
12 No. 07-1518

III. CONCLUSION

For the foregoing reasons, the district court’s grant of

summary judgment in favor of American Airlines is

AFFIRMED.

USCA-02-C-0072—5-5-08