## In the 

# United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1518

L OUIS W. M ILLER AND R ICHARD J. R OYALS

, Plaintiffs-Appellants,

v.

A MERICAN A IRLINES

, I NC

., 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

.

____________

A RGUED N OVEMBER 7, 2007—D ECIDED M AY 5, 2008

____________

Before P OSNER

, W OOD , and W ILLIAMS

, Circuit Judges.

W ILLIAMS

, Circuit Judge. Plaintiffs Louis Miller and Richard Royals, ages eighty and seventy-five years oldrespectively, have sued their former employer, American Airlines, Inc. for failing to offer them a position with salary comparable to that oftheir 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 inferior2 No. 07-1518

positions, summary judgment was appropriate on their claims under the Age Discrimination in EmploymentAct (“ADEA”). Additionally, the plaintiffs cannot challenge the facial validity of th e collective barg aining agreement because this claim was not properly raised in their charges filed with the Equa l Employment Opportunity Commission (“EEOC”). Therefore, we affirm the grant of summary judgment in favor ofAmerican Airlines in its entirety.

I. BACKGROUND

In the 1950s, the plaintiffs began working as flight engineers for American Airlines. American Airlines historically operated aircraft s 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 flightengineers 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 Ag reement (“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 Amer ican Airlines to no longerhire 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 f light 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 to tal monthly compensation actually earned in his new job, the employee will bepaid 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 flightengineers obsolete priorto the vesting of their pensions. The provision was designed to ensure that flightengineers 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 grou nding 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 discriminated4 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 su it, and the district court initially found that the plai ntiffs’ claims involved a minor dispute over terms in a collective barg aining agreement and therefore were preempted by the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq. The districtcourt 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 untimelybecause it was filed more than 90 days after the occurrence being grieved. The arbitrator further determinedthat 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 th e arbitrator found that the plaintiffs were only guarant eed flight engineer pay until that age.

Following the arbitration de cision, 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 th e 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 clai m, 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 nothave 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 “asapplied” 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 pa rt 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 en gineer 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 Supplemen t U of the Agreement and therefore governed by the ar bitration provisions of the RLA. The RLA provides for mandatory arbitration overlabor 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 uponinterpreting 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 afterNo. 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 conferre d by a collective bargaining agreement in the airline industry”).

This is not to suggest, however, that employees arealways precluded from bringing an ADEA claim in federal court if the dispute in volves 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 bargainingagreement. However, if the success of the claim is dependent upon an interpretation of the collective bargaining agreemen t’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 th e ADA] is to allow a plaintiff employee to bring an ADA claim in federal courtagainst his employer (even if his employment is governed by a collective bargaini ng 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 potent ially dispositive matter.”);

Tice , 288 F.3d at 317 (providing that dismissal is appropriate where “a particular interpretation of the collective bargaining agreement is pote ntially dispositive of a the plaintiff’s claim”).

Here, the plaintiffs’ claim was dependent upon thephrase “normal flight engineer retirement date” in Supplement U. The arbitrator’s interpretation of this phrase in the collective bargaining ag reement to mean that the plaintiffs were entitled to f light 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 ri ght to comparable pay after the age of sixty-five under Supplement U, or in their words, that they were entitled to a “benefit” created byvirtue 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 righ t to be free from discrimination,” Tice , 288 F.3d at 317, the plaint iffs point to no language in Supplement U, express or implied, that cansupport 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 engi neer pay only until normal retirement age, provides thatsalary will then “be governed by the compensation plan applicable to the new position,” language that is clearly co ntrary 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 ‘e xplicitly mandatory language’ that links ‘specified substant ive predicates’ to prescribed outcomes.”) (internal citations omitted); Hohmeier v. LeydenNo. 07-1518 9

Cmty. High Sch. Dist. 212 , 954 F.2d 461, 464 (7th Cir. 1 992) (“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 di scrimination claim was not properly alleged in their EEOC charges.

Assuming arguendo that we can reach the issue of whether Supplement U is faci ally 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 notalleged in the EEOC charge, and, while not a jurisdictional requirement, it is a prerequisite with which a plaintiff must complybefore filing suit. Cheek v. W. & S. Life

Ins. Co. , 31 F.3d 497, 500 (7th Cir. 1994). This requirementis 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 proc eed 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 coul d be expected to grow out of an EEOC investigation of the charge.” Id. ( citing Peters10 No. 07-1518

v. Renaissance Hotel Operating Co. , 307 F.3d 535, 551 (7th Cir. 2002) (internal quotations and citations omitted)). Atthe 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 offereda position with a comparable salary as required by the TriPartite Agreement.” It is true that their claim that the Tripartite Agreement is faci ally 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 “beyon d normal retirement age” conveys that at most, the plai ntiffs 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 inconsis tent 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 deliberateNo. 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 pl aintiffs to proceed on theirfacial 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 chargeis “meant both to give the EEOC and employer an opportunity to settle the disput e 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 th is 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 plaint iff 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 thanwhat 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 theplaintiffs’ 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

A FFIRMED

.

USCA-02-C-0072—5-5-08