IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

STEVEN SERLING, §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-179-A

§

AMERICAN AIRLINES, INC., §

§

Defendant. §

MEMORANDUM OPINION

and

ORDER

On March 1, 2006, defendant, American Airlines, Inc.

("American"), moved for summary judgment on the sole claim

asserted by plaintiff, Steven Serling ("Serling"), in this suit.

Having considered the motion, the response, the reply, the

summary-judgment evidence, the applicable legal authorities, and

the joint pretrial order submitted by the parties on April 27,

2006, the court concludes that the motion should be granted. 

I.

Plaintiff's Claim

On March 16, 2005, Serling filed his original complaint in

this court. He contends that American terminated his employment

in retaliation for his having engaged in activities protected by

the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-

213. 

II.

The Motion for Summary Judgment

American maintains that Serling cannot establish a prima

facie case of retaliation. Even if there were evidence

 

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establishing a prima facie case, American urges that it had a

legitimate, non-retaliatory reason for terminating Serling's

employment. Moreover, American contends that it would have made

the same employment decision irrespective of any consideration

allegedly given to Serling having engaged in protected behavior. 

III.

Undisputed Facts

Serling began his employment for American as an aircraft

mechanic in December of 1990. From September 7, 2001, through

March 7, 2002, American held Serling out of service due, in part,

to a determination by American's Medical Department that he was

unable to perform safety-sensitive work. Disagreeing with this

assessment, Serling filed a charge of discrimination with the

Equal Employment Opportunity Commission on September 27, 2001. 

Subsequently, on December 27, 2001, he filed a lawsuit against

American for disability discrimination. In March of 2002, after

being cleared by American's Medical Department, Serling returned

to work for American. The lawsuit settled approximately one year

later, in February of 2003. 

In the three years leading up to his termination, Serling

had numerous performance and other work related problems. The

problems ranged from hygienic to, in the end, mistakes that had

potentially destructive and hazardous consequences. For example,

on July 14, 2003, Serling improperly installed a clamp and failed

 

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While Serling disputes the extent of damage to the engine and also

suggests that he was not "clearly" at fault for the damage, see Pl.'s Br. at

18-22, Serling has not seemingly come forward with any specific summaryjudgment evidence contradicting his admission that the incident was his fault. 

See Def.'s App. at 142. The district court has no duty to sift through record

in search of evidence to support a party's opposition to summary judgment. 

Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

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to engage a safety latch on a Tay 650 aircraft.1 He admitted

these mistakes to his direct supervisor, Victor Buchenot

("Buchenot"). Buchenot nonetheless conducted an investigation of

the incident, which included, inter alia, a physical inspection

of the clamp and the damaged aircraft engine and interviewing

other American employees. Consistent with Serling's own

admission, Buchenot ultimately determined that Serling had, in

fact, improperly installed the duct and clamp and had failed to

engage the safety latch. American deemed that the engine was

damaged beyond economic repair.

On July 15, 2003, the day after he damaged the engine in the

Tay 650 aircraft, Serling made another mistake while attempting

to unmount an aircraft engine from an engine shipping stand. 

Though he should have first attached the engine to an overhead

hoist before removing the bolts from the stand, Serling began to

remove the bolts first, without attaching the engine to the

hoist. And, again, he concedes this. After having already

removed one bolt, another employee called the mistake to his

attention. Serling then stopped and walked away from the area. 

Buchenot also investigated this incident and determined that

 

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Serling had made a serious mistake that could have resulted in

damage to the aircraft engine. Buchenot further determined that

Serling, by walking away, had failed to complete his assignment. 

When Buchenot asked him why he had walked away, Serling said that

he was too nervous to stay and finish the work because the FAA

was on site. Serling's employment was subsequently terminated

effective July 31, 2003. 

Serling filed a grievance under the Collective Bargaining

Agreement ("CBA") to appeal his termination. Pursuant to the

terms of the CBA, the grievance of Serling's termination was

heard by the Chief Operating Officer, Patrick Stewart, who could

decide to uphold or override the termination decision. Patrick

Stewart upheld Plaintiff's termination. Serling's grievance was

then heard on January 29 and February 20, 2004, by a three-member

arbitration panel, including an independent arbitrator, a

representative from the Union, and a representative from

American. The arbitration panel upheld American's decision, with

the neutral arbitrator and the American representative signing

the decision and the Union representative not signing it.

The neutral arbitrator, after hearing all of the evidence,

concluded the following:

a. Serling failed to follow simple instructions from the

Service Bulletin on marking bolts.

b. Serling failed to use a basic tool to align seat

tracks.

c. Serling failed to accept training after failing to use

a basic tool to align the seat tracks.

d. Serling failed to follow simple rules on badging in and

 

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out that led to a First Advisory.

e. Serling failed to properly install a clamp on a starter

prior to July 14, 2003, as witnessed by Supervisor

Blount.

f. Serling failed to properly install the clamp on an off

take duct, leading to damage to the Tay aircraft engine

on July 14, 2003.

g. Serling failed to follow correct aircraft engine

dismounting procedure before July 15, 2003, when his

crew chief observed him approaching a mounting stand

with a wrench and appearing ready to remove bolts

without safety support for the aircraft engine.

h. Serling failed to follow correct aircraft engine

dismounting procedure on July 15, 2003, when he removed

bolts from a mounting stand without safety support as

witnessed by two employees who stopped him before any

damage or injury could occur.

i. Serling failed to correctly harness an aircraft engine

by placing the harness on backwards on July 15, 2003.

j. Serling failed to remain on the job after being told

that the harness was wrong on July 15, 2003.

k. Serling failed to perform the simple task on July 15

because he was nervous about the FAA's presence.

l. Serling showed a pattern of extremely poor judgment.

m. The pattern of extremely poor judgment shown by Serling

was characterized by a lack of safety and training

concerns, by many failures to follow simple

instructions and perform relatively simple mechanical

tasks, and by failing to perform when he was being

watched.

n. The Final Advisory issued to Serling terminating his

employment with American was warranted.

The arbitrator also specifically found that the Union had failed

to produce records or other competent reliable evidence of

disparate treatment. 

IV.

Applicable Summary Judgment Principles

 

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A party is entitled to summary judgment on all or any part

of a claim as to which there is no genuine issue of material fact

and as to which the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986). The moving party has the initial

burden of showing that there is no genuine issue of material

fact. Anderson, 477 U.S. at 256. The movant may discharge this

burden by pointing out the absence of evidence to support one or

more essential elements of the non-moving party's claim "since a

complete failure of proof concerning an essential element of the

nonmoving party's case necessarily renders all other facts

immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25

(1986). Once the moving party has carried its burden under Rule

56(c), the non-moving party must do more than merely show that

there is some metaphysical doubt as to the material facts. 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 586 (1986). The party opposing the motion may not rest on

mere allegations or denials of pleading, but must set forth

specific facts showing a genuine issue for trial. Anderson, 477

U.S. at 248, 256. To meet this burden, the nonmovant must

"identify specific evidence in the record and articulate the

'precise manner' in which that evidence support[s] [its]

claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). 

An issue is material only if its resolution could affect the

outcome of the action. Anderson, 477 U.S. at 248. Unsupported

allegations, conclusory in nature, are insufficient to defeat a

 

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Direct evidence of retaliation is "evidence that, if believed, proves

the fact of discriminatory animus without inference or presumption." See,

e.g., Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)

(citation omitted). Serling does not appear to argue that such evidence is

present here nor has the court found any in the summary-judgment record. 

 

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proper motion for summary judgment. Simmons v. Lyons, 746 F.2d

265, 269 (5th Cir. 1984).

V.

Analysis

Absent direct evidence of a retaliatory motive as here,2 a

plaintiff may rely on circumstantial evidence to establish his

case, which, in turn, is analyzed under the evidentiary burdenshifting framework of McDonnell Douglas Corp. v. Greene, 411 U.S.

792 (1973). See, e.g., Russell v. McKinney Hosp. Venture, 235

F.3d 219, 222 (5th Cir. 2000). This framework requires plaintiff

first to establish a prima facie case. St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 506 (1993). If a plaintiff successfully

does so, a presumption of retaliation arises. Id. The burden

then shifts to the defendant to articulate a legitimate, nonretaliatory reason for its actions. McDonnell Douglas, 411 U.S.

at 802. If the defendant meets this burden, then plaintiff must

offer evidence sufficient to create an issue of material fact

"'either (1) that the defendant's reason is not true, but is

instead a pretext for discrimination (pretext alternative); or

(2) that the defendant's reason, while true, is only one of the

reasons for its conduct, and another motivating factor is the

plaintiff's protected characteristic (mixed-motive[s]

 

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alternative).'" Rachid v. Jack in the Box, Inc., 376 F.3d 305,

312 (5th Cir. 2004) (quoting Rishel v. Nationwide Mut. Ins. Co.,

297 F. Supp.2d 854, 865 (N.D.N.C. 2003)). 

If plaintiff proves that the articulated reason is a pretext

for retaliation, summary-judgment for the defendant may still be

appropriate if "no rational fact finder could find that the

action was [retaliatory]." Reeves v. Sanderson Plumbing

Products, Inc., 530 U.S. 133, 148 (2000). If the plaintiff

chooses the mixed motive alternative and proves that

discrimination was a motivating factor, the burden shifts back to

the defendant to prove that it would have made the same adverse

employment decision regardless of retaliatory animus. Rachid,

376 F.3d at 312. 

The ultimate determination in a retaliation case is whether

the plaintiff's protected conduct was a "but for" cause of the

adverse employment action. Sherrod v. American Airlines, Inc.,

132 F.3d 1112, 1121-22 (5th Cir. 1998) (citing Long v. Eastfield

College, 88 F.3d 300, 308 (5th Cir. 1996). "In other words, even

if a plaintiff's protected conduct is a substantial element in

defendant's decision to terminate an employee, no liability for

unlawful termination arises if the employee would have been

terminated even in the absence of the protected conduct." Long,

88 F.3d at 305 n.4. In order to withstand a motion for summary

judgment, the plaintiff must reveal a conflict in substantial

evidence on the ultimate issue of retaliation. Sherrod, 132 F.3d

at 1122. "Evidence is substantial if it is of 'such quality and

 

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weight that reasonable and fair minded persons in the exercise of

impartial judgment might reach different conclusions.'" Id.

(citation omitted).

Assuming, without deciding, that Serling has established a

prima facie case of retaliation, the court is amply satisfied

that American is entitled to judgment as a matter of law, because

American had a legitimate non-discriminatory reason for

terminating Serling's employment. The summary-judgment record

reflects a history of poor job performance on Serling's part

culminating in back to back serious mistakes objectively

indicating that Serling posed a safety risk to property and

persons at American. The court's conclusion in this regard is

further bolstered by the fact that an arbitration panel

independently upheld Serling's termination and found that it was

warranted. See, e.g., Universal Am. Barge Corp. V. J-Kim, Inc.,

946 F.2d 1131, 1137 (5th Cir. 1991) (court has discretion to give

arbitral findings made under procedurally fair circumstances

preclusive effect). In short, Serling has failed to reveal a

conflict in substantial evidence on the ultimate issue of

retaliation. Sherrod, 132 F.3d at 1122. American, in turn, has

established, as a matter of law, that it would have terminated

Serling even in the absence of the protected conduct. Long, 88

F.3d at 305 n.4. 

VI.

Order

For the reasons discussed above, the court concludes that

 

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American's motion for summary judgment should be granted. 

Therefore,

The court ORDERS that Serling's cause of action be, and is

hereby, dismissed with prejudice. 

SIGNED April 28, 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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