@ @
“performance, qualifications, [or] conduct” of the Senior Flight
Attendant in a legally relevant way, then Gulley’s Title VI1 claim
in Count 2 collapses. Accordingly, because Count 2 could be
conclusively resolved through an interpretation and application of
Section 13 of the CBA, it is precluded by the RLA. See Brown, 254
F.3d at 668.

Even if Count 2 were not precluded by the RLA, it would
nevertheless be dismissible pursuant to Federal Rule of Civil
Procedure 12(b) (6) for failure to state a claim upon which relief
could be granted. The third element of Gulley’s prima facie
discrimination claim requires her to demonstrate that “she was
subject to an adverse employment action.” Johnson, 170 f.3d at 743.
“For an employment action to be actionable, it must be a significant
change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.” Bell v.
Envtl. Prot. Agency, 232 F.3d 546, 555 (7th Cir. 2000) (internal
quotation marks omitted); Traylor v. Brown, 295 F.3d 783, 788 (7th
Cir. 2002) (adverse employment action “might be indicated by a
termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or

other indices that might be unigne to a particular situation”

{citation and internal quotation marks omitted)).



@ @
Count 1

Gulley claims that on September 11, 2000 ATA denied her a
promotion to the position of Senior Flight Attendant. Gulley, whose
supervisor was African-American during the time leading up to her
non=promotion, Claims that “she was passed over for less experienced
and Jess qualified employees who were African-American” and that
“the decisions made by ATA and its supervisors were based solely
upon Gulley’s race and national origin.” (First Am. Compl.
qi 9-10.)

Count 2

Gulley also alleges that on January 27, 2001 she was involved
in “an in-flight incident” in which an African-American Senior
Flight Attendant “failed to appear in a timely fashion for his
report time” and delayed the departure of the flight. (Td. 11 [15,
17).) Gulley claims that she was wrongfully disciplined by her twa
African-American managers following this incident, and thal “a
write-up appeared in her personnel file that had the appearance of
being a negative performance mark against her.” (Id. J [17].)
Moreover, Gulley claims that “ATA did not discipline the African-
American male [Senior Flight Attendant] involved in the incident
although he violated a direct policy of the company concerning the

time required to show for a flight.” (Id.) Gulley claims that

these actions by ATA and its employees were “improper and



question of this Court’s subject matter jurisdiction. “Tf the

plaintiff presents a non-frivolous claim under federal law, no more

is necessary for subject-matter jurisdiction. Komorowski, 162 F.3d
at 964. Gulley has carried her burden at this early stage of
presenting @ non-frivolous Title VII claim in Count 5.

Accordingly, AFA’s motion to dismiss Count 5 for lack of
subject matter jurisdiction is denied,

DISPOSITION

For clarity’s sake, a final word is in order about the Court’s
formal disposition of Counts 1, 2 and 4. In a recently decided age
discrimination case involving a disputed collective bargaining
agreement, the district court held that the RLA precluded
plaintiffs’ claims and dismissed the case for lack of subject matter
jurisdiction. See Tice v, American Airlines, Inc., 2001 WI, 1002466
(N.D. Il]. Aug. 30, 2001). On appeal, the Seventh Circuit affirmed,
but modified the district court’s order by converting the dismissal
of the suit to a stay of the suit pending referral of the parties’
dispute to arbitration. See Tice v. American Airlines, Inc., 288
F.3d 313, 318-19 (7th Cir. 2002). The Seventh Circuit explained
that because “it is obviously the intention of the plaintiffs .

to proceed under the age discrimination law if they can, we think

that rather than dismiss the present suit the district judge should
have stayed it to await the outcome of arbitration in order to spare

the parties the burden of a second litigation should the arbitrators

-~i\7-



with Section 9 of the CBA. Cf. Hogan v: Northwest Airlines, Inc.,
880 F.Supp. 685, 691 (D. Minn. 1995) (holding that RLA precluded
discrimination claim because, as a threshold matter, “the Court must
necessarily determine whether [plaintiff’s} conduct constituted an
‘application’ under the terms of the collective bargaining
agreement”).
Section 20 of the CBA sets out the minimum service requirements

necessary for promotion to a Senior Flight Attendant position:

A full-time Flight Attendant with a minimum of

one (1) year of full-time active service as an

ATA Flight Attendant may apply for the Senior

Flight Attendant qualification. The one year

minimum may be waived at the discretion of

Inflight Management to a six (6) month active

on-line service minimum based on previous

airline and/or leadership experience.
Gulley claims that she “began her employment with ATA on or about
March 17, 2000 as a flight attendant” and that “on or about
September 11, 2000, [she] was passed over for [a] Senior Flight
Attendant position.” (First Am. Compl. 991 4-5.) By Gulley’s own
admission, she had been on the job as a flight attendant less than
six months at the time she was passed over for a promotion to Senior
Flight Attendant. By the terms of the CBA itself, this would appear
to have rendered Gulley unqualified for the promotion. Because
Gulley must make a threshold showing that she was qualified for the

promotion sought, Perdomo, 67 F.3d at 144, Count 1 could be

conclusively resolved by the interpretation and application of the

CBA, Brown, 254 F.3d at 664.



Count 5

Lastly, Gulley claims that the AFA “has failed and refused to

stop the harassment and retaliation of the [sic] ATA employees and
supervisors” and that she “continues to experience these behaviors
of the union members and ATA supervisors, . . .” (Id. G [44}.)
DISCUSSION
Railway Labor Act

In enacting the Railway Labor Act, 45 U.S.C. § 151 et seg, (the
‘“RLA”), Congress sought to promote stability in labor-management
relations and to avoid interruptions in interstate commerce by
“providing a comprehensive framework for resolving labor disputes”
in the railroad industry. Hawaiian Airlines, Inc. v. Norris, 512
U.S. 246, 252 (1994). The RLA now also explicitly covers the
airline industry. See 45 U.S.C. §§ 181-88. “([T}he RLA establishes

nt

a mandatory arbitral mechanism for the prompt and orderly sett
of two classes of disputes - major disputes and minor disputes.”
Brown v. J11l. Cent. R.R, Co., 254 F.3d 654, 658 (7th Cir.
2001) (internal quotation marks omitted). “Major disputes relate to
the formation of collective bargaining agreements or efforts to
secure them.” Hawaiian Airlines, 512 U.S. at 252 (internal
quotation marks omitted). Minor disputes “grow out of grievances
or out of the interpretation or appiication of agreements covering
rates of pay, rules, or working conditions.” Id. (internal

quotation marks omitted); see also 45 U.S.C, § 15la. Minor disputes


discriminatory based on Gulley’s race and national origin.” (Id.
q@ [20].)
Count 3

On February 14, 2001, following the incident described in
Count 2, Gulley filed an internal complaint with ATA claiming that
she had suffered discrimination. On April 18, 2001, Gulley tiled
discrimination charges with each of the IDHR and the EEOC, covering
the incidents described in both Counts 1 and 2. Gulley claims that,
“as a result” (Id. & [31]) of her filing these administrative
complaints, “ATA via its supervisors and employees, have embarked
in [sic] a course of conduct designed to embarrass, harass, and
retaliate against Gulley,” including taking “quasi-disciplinary
actions” against her and “setting punitive schedules in a less
favorable manner than other employees” (Id. @% [28-29]).

Count 4

Following the incident described in Count 2, Gulley attempted
to enlist the help of the AFA to resolve her grievances, Gulley
evidently became unhappy with the AFA’s efforts (or lack thereof}
on her behalf, and “complained to the [AFA] about her representation
relative to Count II.” (Id. G [38].) Gulley claims that the AFA
“made no reasonable effort to represent her and in fact threatened

her employment when [she] would not go along with the [AFA’s]

recommended course of action.” (fd. 71 (39].)



fail to resolve the entire controversy.” Tice, 288 F.3d at 318.
“[DJjistrict courts should retain jurisdiction over a suit that mist
be interrupted for reference of an issue to another forum rather
than dismiss it if, should it be dismissed, there might later be
grounds for reinstating it.” Id.

Based on this guidance, the Court’s order will deny the
Defendants’ motions to dismiss and instead stay Counts 1, 2? and 4
pending the results of arbitration.

CONCLUSION

For the reasons set forth above, ATA’s Motion to Dismiss
Counts 1 and 2 of the First Amended Complaint pursuant to Federal
Rule of Civil Procedure 12({b)(1) is DENIED. For the reasons set for

above, the AFA’s Motion to Dismiss the First Amended Complaint in

its entirety pursuant to Rule 12(b)(1) is DE
Counts 1, 2 and 4 of the First Amend int are STAYAI
pending the results of arbitration purg He Railway Labor

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Date: y/ Zs AND



e e
collective bargaining agreement.” Jd. (internal quotation marks
omitted).

Defendants argue that resolution of Gulley'’s Title VII claims
requires interpretation and application of the CBA, and that this
Court therefore lacks subject-matter jurisdiction over this action.
See Consol. Rail Corp. v. Ry. Labor Executives’ Assoc., 491 U.S.
299, 304 (1989) (noting that adjustment boards under the RLA “ha[ve]
exclusive jurisdiction over minor disputes.”) With respect to
Counts 1, 2 and 4, Defendants are correct.

count 1

To make out a prima facie case of discriminatory failure to
promote under Title VII, a plaintiff must demonstrate that (1) she
is a member of a protected class; (2) she applied for and was
qualified for the position sought; (3) the employer rejected her for
the position; and (4) the employer granted the promotion to a person
with similar or lesser qualifications whose race is different than
the plaintiff's. See Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir.
1995). Resolution of the second and fourth of these elements
requires interpretation and application of the CBA.

Section 9 of the CBA, entitled “Filling of Vacancies or
Transfers,” sets forth the process that ATA flight attendants must
follow in applying for open positions or transfers. Determining

whether Gulley applied for the position of Senior Flight AttendanLl

in the first instance requires an analysis of whether she complied



inate Guster Fors ei47)

United S|

s District Court, Northern Distr@r Tlinois

Name af Assigne
or Magistrate Judge

Harry D. Leinenweber

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 C3616 DATE 11/21/2002
CASE Michele Gulley vs. American Trans Air, Inc., et al
TITLE

[Inthe a) indicale Ue party fg Ue motion, e.2., plamtill, defendant, sr party plaintitt, and (b} state briefly the wature
MOTION: of the motion being, presented.)
DOCKET ENTRY:
(1) im Filed motion of [ use listing in “Motion” box above. |
(2) Brief in support of motion due

Answer bricf to motion duc Reply to answer brief due

Ruling/Hearing on set for at

Status hearing set for 18 Dee. 02 at 9:00 A.M.

(6) Pretrial conlerence[held/continued to] [set for/re-set for] on set for al
(7) ‘Trial[set for/re-set for] on at
(8) [Bench/lury trial] [Hearing] held/continued to at

a
OCaOdmp 020G

This case is disniissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CIFRCP4im)  P1 Local Rule 41.1 CEFROP4I (at) OO FRCP41(ay(2).

| {Other docket envy] ENTER MEMORANDUM OPINION AND ORDER: ATA’s Motion to
Dismiss Counts 1 and 2 of the First Amended Complaint is DENIED. AFA’s Motion to Dismiss the First

Amended Complaint in ils entirely is DENIED. Counts |, 2 and 4 of the First Amended Complaint are
STAYED pending the results of arbitration pursuant to the Railway Labor Act.

(1) so

No notives required. advised! in open court,

[For further detail see order attached to the original minute order,]

Document
Number

No notices required

Nav 22 2002

Notices mailed by judge's stall

Notilied counsel by telephone.

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precluded discrimination claim which was "inextricably intertwined"
with provisions of a CBA outlining employee seniority rights), cited
with approval in Brown, 254 F.3d at 668; cf. Kennedy v. Chem. Waste
Momt., fne., 79 F.3d 49, 51 (7th Cir. 1996) (“Title VII contains an
exemption for bona fide seniority systems.”); 42. U.S.C.
§§ 2000e-2{h).

For the foregoing reasons, Count J] is precluded by the RLA.

Count 2

To make out a prima facie case of discrimination under
Title VII, a plaintiff must demonstrate that (1) she is a member of
a protected class; (2) she reasonably performed her job to her
employer's expectations; (3) she was subject to an adverse
employment action; and (4) other similarly situated employees not.
in the protected class were treated more favorably. Johnson v. Zema
Sys. Corp., 170 F.3d 734, 742-43 (7th Cir. 1999). As noted above,
“[ijJn determining whether two employees are similarly situated a
court must look at all relevant factors, the number of which depends
on the context of the case.” Radue v. Kimberly-Clark Corp., 219
F.3d 612, 617 (7th Cir. 2000). For example, “in disciplinary cases
— in which a plaintiff claims that he was disciplined by his
employer more harshly than a similarly situated employee based on
some prohibited reason — a plaintiff must show that he is similarly
situated with respect to performance, qualifications, and conduct.”

td. Typically this “entails a showing that the two employees dealt

-ll-



e e

Finally, demonstrating that ATA awarded the Senior Flight
Attendant position that Gulley coveted to a person with similar or
lesser qualifications whose race is different will require
interpretation and application of Sections 8 and 20 of the CBA.
Section 8, entitled “Seniority and Probation,” provides that “System
seniority shall govern all Flight Attendants in reduction in force,
rates of pay, recall from furlough, bidding rights, and base
assignments and transfers.” Section 20 states that ATA “shall. offer
Senior [Flight Attendant] qualification training by base, in
seniority order to those individual Flight Attendants who have
successfully completed the selection process.” Thus, determining
whether the alleged comparable(s} had greater, equal or lesser
seniority than Gulley within the meaning of Sections 8 and 20 of the
CBA is critical to the fourth element ef Gulley’s prima facie case
and could be dispositive of Count I. See Patterson v. Avery

Dennison Corp., 381 F.3d 676, 680 (7th Cir. 2002) (“To meet her

burden of demonstrating that another employee ‘similarly
situated,’ a plaintiff must show that there is someone who is
directly comparable to her in all material respects .

{including} whether the employees had comparable experience,
education and qualifications, provided that the employer took these
factors into account when making the personnel decision in

question.”) (internal quotation marks omitted); Schiltz v. Burlington

Northern R.R., 115 F.3d 1407, 1415 (8th Cir. 1997) (holding that RLA



@ @

involve "controversies over the meaning of an existing collective
bargaining agreement in a particular fact situation.” Hawaiian
Airlines, 512 U.S. at 253 (internal quotation marks omitted).
“Thus, major disputes seek to create contractual rights, minor
disputes to enforce them.” Id. (internal quotation marks omitted).

“All minor disputes must be adjudicated under RLA mechanisms,
which include an employer's internal dispute-resolution procedures
and an adjustment board established by the unions and the employer.”
Brown, 254 F.3d at 658 (internal quotation marks omitted); see alsa
45 U.S.C, § 184. A claim “is properly characterized as a minor
dispute (and is therefore subject to mandatory and exclusive
arbitration under the RLA) when [its] resolution . . . requires
interpretation of the CBA.” Brown, 254 F.3d at 658; see also Coker
v. rans World Airlines, Ine., 165 #.3d 579, 583 (7th Cir.
1999) (holding that “(t]he distinguishing feature of a minor dispule
is thal the dispute can be conclusively cesolyed by interpreting the
existing CBA”). Thus, even where a plaintiff’s claim is formally
rooted in an independent federal statute (such as Title VII), it
will be precluded by the RLA “if it can be dispositively resolved
through an interpretation of a CBA.” Brown, 254 F.3d at 668. This
will be the case “only when a provision of the collective bargaining

agreement is the subject of the dispute or the dispute is

substantially dependent upon an analysis of the terms of a



@ @

extra pleading material consisting of the CBA (defined below)
entered into between ATA and the AFA. The Court has rightly
reviewed al] of these documents in connection with the instant
motions to dismiss. See Freo.R.Civ.P. 1LO(c) (“[A]ny written
instrument which is an exhibit to a pleading is a part thereof for
all purposes.”); Capital Leasing, 999 F.2d at 191 (holding that
where subject matter jurisdiction is at issue, a court may properly
“view whatever evidence has been submitted on the issue to determine
whether in fact subject matter jurisdiction exists”).

The Court also notes that the individual paragraphs within the
Complaint are misnumbered beginning with Count 2. For clarity’s
sake, all citations to the Complaint in this opinion contain
accurate paragraph numbers within brackets.

Facts

ATA is a commercial air carrier based in Indianapolis, Indiana.
Gulley, a “Caucasian/East Indian female” (First Am. Compl. 9 6), has
been employed by ATA as a flight attendant since March 17, 2000.
Gulley is a member of the AFA, the exclusive bargaining
representative for ATA’s flight attendants. ATA and the AFA are
parties to a collective bargaining agreement (the “CBA”), effective
between April 11, 2000 and October 11, 2004, that sets forth the
pay, rules and working conditions for ATA’s flight attendants.

Gulley claims that ATA (Counts 1-3) and the AFA (Counts 4-5)

have violated her rights under Title VII, as follows:



@ @

While this standard is broad, it is clear that “not everything
that makes an employee unhappy will suffice to meet the adverse
action requirement.” Traylor, 295 F.3d at 788. Rather, a plaintiff
“must show that material harm has resulted from the challenged
actions,” id., such as “a reduction in pay or diminution in job
responsibilities,” Hilt-Dyson v. City of Chicago, 282 F.3d 456, 466
(7th Cir, 2002). For example, “unfair reprimands or negative
performance evaluations, unaccompanied by some tangible job

" Grube

consequence, do not constitute adverse employment actions.”
v. Lau Indus., Inc., 257 F.3d 723, 729 (7th Cir. 2001); see also
Smart v. Bail State Univ., 89 F.3d 437, 441 (7th Cir. 1996).

Given these standards, Gulley’s allegation that “a write-up
appeared in her personnel file that had the appearance of being a
negative performance mark against her” (Id. 9 [17]) does not, as a
matter of law, constitute an adverse employment action.

For the foregoing reasons, Count 2 is precluded by the RIA.

Count 3

Neither ATA nor the AFA offers any argument addressed to the
Court’s subject matter jurisdiction over Count 3, The Seventh
Circuit has made clear that “[i]lf the plaintiff presents a non-
frivolous claim under federal law, no more is necessary for subject-
Matter jurisdiction.” Komorowski v. Townline Mini-Mart and Rest.,

162 F.3d 962, 964 (7th Cir. 1998). Gulley appears to have satisfied

~ 14 -



r @
in Count 2 is necessarily the only way to satisfy the first element
of Gulley’s prima face case in Count 4.
Accordingly, since Count 2 depends on an interpretation and
application of the CBA and is therefore precluded by the RLA, so too
is Count 4,

Count 5

Under the anti-retaliation provisions of Title VII, it is
unlawful for “a labor organization to discriminate against any
member thereof . . . becayse he has made a charge, testified
assisted, or participated in any manner in an investigation,
proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a).
To establish a prima facie retaliation claim, a plaintiff must show
that (1) she engaged in statutorily protected expression; (2?) she
suffered an adverse action by the defendant; and (3) there is a
causal link between the protected expression and the adverse action.
See Eiland v. Trinity Hosp,, 150 F.3d 747, 753 (7th Cir. 1998).
In its motion to dismiss, the AFA offers no more argument with
respect to Count 5 than to characterize it as consisting of
“conclusory allegations.” (AFA Mol. to Dismiss at 5.) Even if
Gulley’s claims in Count 5 are conclusory ~ a fact which would not
justify dismissal at this stage in any event, see Higgs v. Carter,
286 F.3d 437, 439 (7th Cir. 20062) (“A complaint that complies with
the federal rules of civil procedure cannot be dismissed on the

ground that it is conclusory. . . .”), that has no bearing on the



e e
(2d Ed, 1990) (hereinafter, “Wright, Miller & Kane”). If Lhe
defendant is merely challenging the sufficiency of the allegations
of subject matter jurisdiction, then the court must accept all well-
pleaded factual allegations as true and draw all reasonable
inferences in favor of the plaintiff. United Transp. Union v.
Gateway Western Ry. Co., 78 F.3d 1208, 1210 (7th Cir. 1996). If,
however, as here, the defendant is denying the actual existence of
subject matter jurisdiction, then the court may properly “look
beyond the jurisdictional allegations of the complaint and view
whatever evidence has been submitted on the issue to determine
whether in fact subject matter jurisdiction exists.” Capital
Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993) (citations
omitted); see Wright, Miller & Kane, § 1363 at 456 (where motion
“challenges actual existence of subject matter jurisdiction, then
the pleading’s allegations are merely evidence on the issue”).
BACKGROUND
Parties’ Submissions

The Court notes that appended to the Complaint are copies of
(i) the two separate discrimination charges, each dated April 18,
2001, that Gulley previously filed with the Equal Opportunity
Employment Commission (the “EEOC”) and the lllinois Department of
Human Rights (the “IDHR”), and (ii) the two corresponding “Right to

Sue” letters she received from the EEOC, dated February 28, 2002 and

May 31, 2002, In their motions to dismiss, Defendants have attached



IN THE UNITED STATES DISTRICT COURT FILED
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NOV 24
2002
MICHELE GULLEY, dudge Hary D. Leinenwepen
WLS District Court
Plaintiff,
Case No. 02 Cv 3616
v.
AMERICAN TRANS AIR, INC. and Hon. Harry D. Leinenweber

THE ASSOCIATION OF FLIGHT
ATTENDANTS AFA LOCAL 33,

Defendants.

tk

NOV 2 2 2002

MEMORANDUM OPINION AND ORDER

Plaintiff Michele Gulley (“Gulley”) brings her first amended
complaint (“Complaint”) against American Trans Air, Inc. (“ATA”) and
the Association of Flight Attendants AFA Local 33 (the
*AFA”) (collectively, the “Defendants”), asserting federal claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. (“Title VII"). Before the Court is (i) ATA’s Motion to
Dismiss Counts 1 and 2 of the Complaint pursuant to Federal Rule of
Civil Procedure 12{b) (1) ("Rule 12(b) (1)”) and (ii) APA’s motion to
dismiss the Complaint in its entirety pursuant to Rule 12(b) (1).

STANDARD OF REVIEW

The applicable standard of review for a Rule 12(b) (1) motion

to dismiss for lack of subject matter jurisdiction depends on the

purpose of the motion. See 5A Charles Alan Wright, Arthur R. Miller

& Mary Kay Kane, Federal Practice and Procedure, § 1363 at 456-57



e e
with the same supervisor, were subject to the same standards, and
had engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish their conduct or the
employer's treatment of them.” Id, at 617-18.

Gulley claims that the comparable in Count 2 was “a Senior
Flight Attendant [who] failed to appear in a timely fashion for his
report. time.” (First Am. Compl. 9 [15].) Gulley alleges that this
Senior Flight Attendant “violated a direct policy of the company
concerning the time required to show up for a flight” and yet ATA
did not discipline him for it. (Id. @ [17].) Gulley, on the other
hand, claims that “[a]s a result of [her] handling of the situation,
a write-up appeared in her personnel file that had the appearance
of being a negative performance mark against her.” (Id.)

The “direct policy” to which Gulley refers, and that forms the
basis of Count 2, is embodied in Section 13 of the CBA, entitled
“Hours of Service,” which contains detailed rules governing the duty
periods of ATA flight attendants. In order to determine whether
Gulley and the allegedly offending Senior Fiight Attendant were
“similarly situated with respect to performance, qualifications, and
conduct,” Radue, 219 F.3d at 617, it must initially be determined
whether, and to what extent, Section 13 of the CBA (i) applied to
the conduct of the Senior Flight Attendant and (ii) was in fact
violated by the Senior Flight Attendant (thus creating a basis for

punishment) . If the answer to either guestion distinguishes the

- 12+



@ @
this standard in pleading a Title VII retaliation claim in Count 3,
See 42 U.S.C. § 2000e-3(a).

Accordingly, the AFA’s motion to dismiss Count 3 for lack of

subject matter jurisdiction is denied.
Count 4

Gulley claims that the AFA violated Title VII when it “made no
reasonable effort to represent her” in connection with the events
alleged in Count 2. For Gulley to establish a prima facie case
under Title VII that the AFA failed to represent her, she must show
(1) that ATA violated the collective bargaining agreement with
respect to her; (2) that the AFA permitted that breach to go
unrepaired, thereby breaching its own duty of fair representalion;
and (3) that the AFA was motivated by racial animus, See Bugg v.
Int'l. Union of Allied Indus. Workers of America, 674 F.2d 595, 598
n.5 (7th Cir. 1982).

In tying the AFA’s alleged failure of representation to the
incident described in Count 2, Gulley is presumably alleging that
ATA violated Section 29(B) (1) of the CBA with respect to her, which
provides: “Tt is the policy of the Company to give equal
opportunity to all qualified persons without regard to race lor]
national origin. . . a Resolving whether ATA violated
Section 29(B) (1) for purposes of Count 4 depends, according to
Gulley’s own explicit incorporation of Count 2 by reference, on the

logically prior resolution of Count 2. Put another way, prevailing

-i5-