Plaintiffs have offered no explanation as to why the harmonization analysis here should yield
a different result with respect to their ADEA claims than did the harmonization process in Tice, and
we find none.

Cc.

Having concluded that plaintiffs’ ADEA claims raise minor disputes that must be resolved
through the arbitral process established by the RLA, we are left with the question of precisely what
that means for the disposition of plaintiffs’ ADEA claims in this Court. On this question, there is
some arguable ambiguity in the governing Seventh Circuit law.

In Brown, the appeals court concluded that the plaintiff's federal claim was precluded
because it was a minor dispute that had to be submitted to arbitration under the RLA; the court
therefore affirmed the dismissal of Brown’s federal case for lack of subject matter jurisdiction.
Brown, 254 F.3d at 668. The Brown analysis appears to be premised on the view that once it is
determined that a minor dispute is involved that “could” dispose of the federal claim, then the federal
claim is no longer “truly independent” of the CBA within the meaning of the doctrine established
in Alexander v, Gardner-Denver Co., 415 U.S. 36 (1974), and thus may not proceed at all. Brown,
254 F.3d at 668.°

In Tice, the appeals court concluded that the plaintiffs’ federal claims were precluded, but
concluded that those claims should be stayed pending arbitration rather than dismissed. 288 F.3d

at 318, In reaching that conclusion, the appeals court reasoned that “[w]hen an employee has both

‘In Gardner-Denver, the Supreme Court held that because contractual rights arising under a collective
bargaining agreement and statutory rights provided by federal employment discrimination laws are independent of one
another, an employee is free to pursue each set of rights, albeit in separate forums: the collective bargaining agreement
rights through arbitration, and the federal statutory rights through litigation in court. See 415 U.S. at 47-49. Indeed,
“consideration of the claim by both forums may promote the policies underlying each.” Jd. at 50.

13


that third-seat crew members on turbo jet aircraft become pilot-qualified (SMF 47). American then
began to hire pilots, as opposed to FEs, for that third seat (Am. Mem. at 2).

As a result, in the early 1960s, a jurisdictional dispute ensued between the Allied Pilots
Association (the “APA”) and the FEIA. American, the APA and the FEIA finally resolved this
dispute by entering into a “Tripartite Agreement,” executed on December 11, 1964. The parties
described it as “a permanent resolution of a long-standing problem” (SMF 48). That Agreement
recognized FEJA as the exclusive bargaining representative of the existing FEs. Jd. Thereunder,
existing FEs, including plaintiffs, were grandfathered in and allowed to serve out their careers as
“professional” FEs (SMF § 9).

Given the creation of professional FEs, American, the APA and the FEIA negotiated a
supplement to the Tripartite Agreement. Enacted on August 12, 1983, Supplement U provides:

In the event a surplus of flight engineers exists, each flight engineer so affected, who

is qualified or trainable, will be guaranteed placement within the Company in a

position not covered by the FEIA Collective Bargaining Agreement, Ifnot qualified,

such employee shail be afforded training to enable satisfactory performance in the job

in which placed. Such flight engineer must perform the duties in accordance with his

new work assignments and schedules as required by the job in which he is placed.

At the time of 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.

(SMF {ff 10-11). Supplement U ensured that if three-seat aircraft were eliminated, FEs would

continue to receive the same rate of pay (in whatever alternate job they held) until they reached the


additional remedies; and, (2) that relief did not require further interpretation of the collective
bargaining agreement. Tice, 288 F.3d at 317.

On the other hand, if American prevails in its position that the Tripartite Agreement does not
guarantee the plaintiffs a comparable salary, it nonetheless still remains “the intention of the
plaintiffs in our case to proceed under the age discrimination law if they can.” Tice, 288 F.3d at318.
Plaintiffs clearly would argue that if the Tripartite Agreement does not provide a guarantee of a
comparable salary to FEs who lose their jobs before normal retirement age (65), but guarantees
comparable salary to those who lose their FE positions before normal retirement age, that Agreement
itself violates the ADEA. What is not so clear is whether such a claim properly would lie, as
American has raised a number of defenses to any such claim: (1) that any ADEA claim attacking
a failure of the Tripartite Agreement to provide a salary guarantee to persons in plaintiffs’ situation
is untimely; (2) that such an attack on the Tripartite Agreement under the ADEA is not “like or
related” to the EEOC charges that the plaintiffs filed, and thus would be barred; and (3) that, on the
merits, the Tripartite Agreement does not discriminate on the basis of age. We see no basis for
reaching those issues at the present time, without knowing whether the Tripartite Agreement will be
interpreted in a way that makes those issues relevant to the case.’

CONCLUSION

For the reasons given above, the Court finds that this case involves a minor dispute, that

precludes this ADEA action pending completion of the arbitral processes created by the RLA. The

Court therefore stays this case until arbitration under the RLA is complete. Asa result, American’s

7In light of our disposition of American’s motion, we also find it unnecessary to reach the argument that certain
responses by the plaintiffs to American’s statement of material undisputed facts should be stricken, and the facts offered
by American deemed admitted (Am.’s Reply Mem, at 8-10).

17


If the answer to that question is yes, the next question is whether the RLA and the federal
statute upon which plaintiff’ s claim depends are incompatible or whether they can be “harmonized.”
“Harmony,” in this context, means that the RLA and the underlying statute upon which plaintiff's
claim is based can be given “simultaneous effect,” Brown, 254 F.3d at 662, without any discordance
to the expressed intent of Congress in either statute. Jd. at 663 (RLA applies where there is “no clear
Congressional intent to override the RLA’s requirement that minor disputes be adjudicated
exclusively through [its’] arbitration machinery”). See also United States v. Palumbo Bros., Inc.,
145 F.3d 850, 865 (7" Cir. 1998) (“Absent a clearly expressed intention that Congress intended one
federal statute to preempt another, courts must regard each as effective and give them simultaneous
effect”). In other words, the goal is to adjudicate claims under one statute “without doing actual
violence to the competing statute.” Jd. at 668.

Seventh Circuit law makes it clear that absent a “clear Congressional intent” to the contrary,
this harmonization process will result in the RLA arbitral process being given precedence over the
competing federal statute. Brown, 254 F.3d at 663. To allow a claim based on a competing federal
statute to proceed in federal court when a minor dispute exists “would sanction a judicial incursion
into what the RLA defines as the exclusive province of CBAs, This would ‘lead to the evisceration
of the grievance and arbitration procedures provided by the RLA.’” Jd, at 664 (quoting Schlitz v.
Burlington Northern R.R., 115 F.3d 1407, 1415 (8" Cir. 1997)). Accordingly, unless there is
evidence that, in passing the competing federal statute, Congress intended to override the
“requirement that minor disputes be adjudicated exclusively through the RLA’s arbitration
machinery,” Brown, 254 F.3d at 663, once a court finds the existence of a minor dispute the RLA

will always be given primacy in the harmonization determination.


résponses to the charges that such a dispute was “preempted” by the RLA because it required an
interpretation of the Tripartite Agreement (SMF {| 22).

After receiving their notices of a right to sue, plaintiffs filed this lawsuit. In this Court, they
continued to allege, as they did in the EEOC charges, that the Tripartite Agreement “require[d]”
American to provide them with a position of comparable salary (SMF 4 25). Plaintiffs’ complaint
alleges that American “promised” them “a position which provided equal compensation” (SMF 4
24). Moreover, during discovery, plaintiffs further confirmed that this was their theory of the case.

In responding to requests to admit, plaintiffs admitted that their allegations in the complaint
were based on a claim in the EEOC charge, a claim alleging that the Tripartite Agreement required
American to provide them with positions which paid salaries comparable to their salaries as FEs
(SMF § 25). And, in response to American’s requests for production of documents in this case,
plaintiffs again confirmed that their ADEA claims were premised on their position that Supplement
U to the Tripartite Agreement “guaranteed” plaintiffs “continued employment in a position which
provided equal compensation:”

Defendant's Document Request Nos. 2 and 4 to Plaintiffs:

{Provide and produce] [aJ]ny and all written employment agreements between

American and Plaintiff Miller [Royals] that would guarantee him continued

employment in a position which provided equal compensation. If such documents

allegedly exist, identify which portion of the document provides such promise.

Discovery Response from Plaintiffs Miller and Royals:

See Response to Request to Produce No. 1, specifically Supplement “U” of the

Agreement between defendant and its Flight Engineers.

(SMF { 27) (emphasis in original). In this lawsuit, American has continued to dispute plaintiffs’

interpretation of Supplement U (SMF { 28).


“normal flight engineer retirement date,” which would have the effect of permitting their pension
payments to be based on the highest Final Average Compensation possible (SMF { 13).?

In May 2002, American grounded the last remaining three-seat craft. Plaintiffs and one other
FE were the only remaining FEs employed at that time, and both plaintiffs had reached Normal
Retirement Age and were vested in their Pension (SMF { 17). After plaintiffs’ jobs had been
eliminated, American offered them alternate positions as Staff Assistants (SMF 4 18). American
interpreted Supplement U as meaning that these positions would be “governed by the compensation
plan applicable to the new position,” since the plaintiffs already had reached normal retirement age
(SMF f 19). Plaintiffs assert that the wage offered was $13.25 per hour (Pls.’ Resp. at 2). Plaintiffs
declined these positions and, instead, elected to receive a payout under the Pension Plan: Mr. Miller
received $649,363.21, and Mr. Royals received $983,923.24 (SMF | 21).

The plaintiffs then filed EEOC charges alleging age discrimination (SMF {| 22). In their
charges, plaintiffs alleged that the Tripartite Agreement guaranteed them another position of
comparable salary when their positions were eliminated. Specifically, each plaintiff alleged as
follows: “I was not offered a position with a comparable salary as required by the Tripartite

Agreement.” Id. (emphasis added). American denied plaintiffs’ ADEA claims, and argued in its

2The parties appear to treat the phrase “normal flight engineer retirement date” as synonymous with the term
“Normal Retirement Age” which is found in American’s Pension Plan (i.e., normal retirement age is when an employee
may elect to take full Pension: “A Member who attains this Normal Retirement Age shall have a Vested right to his entire
Retirement Benefit” (SMF {f[ 14, 20)). Under that plan, the age of 65 qualified as the “Normal Retirement Age” and thus,
according to the parties, also qualifies as the “normal flight engineer retirement date” (Am.’s Mem. at 3-4; Pls.’ Resp.
at 3). We point out that “normal” retirement age clearly does not mean “mandatory” retirement age, as plaintiffs were
still working as FEs at ages 70 and 74, respectively (Am.’s Ex. 6, Burdette Decl., Att. A. (EEOC Charges).

3“Final Average Compensation” means “the arithmetical average of a Member’s annual Compensation for the
sixty (60) consecutive months out of the one hundred twenty (120) consecutive calendar months of the Members’
Credited Service net preceding the date of the Member’s termination of employment as an Eligible Employee (including
the month in which such date falls) which produce the highest twelve (12) consecutive month average” (SMF {[ 13).

5



motion to dismiss under Rule 12(b)(1) is denied without prejudice (doc. # 14-1), and American’s
Rule 12(b)(6) motion (doc. #14-2) and for summary judgment under Rule 56 (doc. # 14-3) are denied

as moot.

SIDNEY 1 SCHENKIER
United States Magistrate Judge

Dated: September 28, 2004

18


Minor disputes, by contrast, “gro[w] out of grievances or out of the interpretation or
application of agreements covering rates of pay, rules, or working conditions,” Hawaiian Airline,
572 US. at 252-53, and involve “controversies over the meaning of an existing collective bargaining
agreement in a particular fact situation.” Jd, at 253.

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. A plaintiff's claim is properly
characterized as a minor dispute (and is therefore subject to mandatory and exclusive
arbitration under the RLA) when the resolution of the plaintiff’s claim requires
interpretation of the CBA.
See Brown v. Illinois Central Railroad Co., 254 F.3d 654, 658 (7" Cir. 2001) (citing Monroe v.
Missouri Pacific R.R. Co., 115 F.3d 514, 519 (7 Cir. 1997), and Coker v. Trans World Airlines,
Inc., 165 F.3d 579, 583 (7" Cir, 1999) (stating that “[t]he distinguishing feature of a minor dispute
is that the dispute can be conclusively resolved by interpreting the existing CBA”)). In determining
whether the RLA precludes a federal claim because it involves a minor dispute, courts employ a two-
step analysis.

A court must first determine whether the dispute between the parties is “minor,” as defined
by the RLA. See Brown, 254 F.3d at 661-62. Cf Coker v. Trans World Airlines, Inc., 165 F.34579,
583-84 (7" Cir. 1999) (taking harmonization question first). The Seventh Circuit instructs that
“courts should characterize a dispute as minor if it is even ‘arguably justified’ that the dispute turns
on the application of the CBA.” Coker, 165 F.3d at 583, 584 (referring to this as a “solicitous

standard”); see also Brown, 254 F.3d at 658 (a claim involves a minor dispute if “it cannot be

adjudicated without interpreting the CBA, . . .”).



Minute Order Form (06/97)

United States District Court, Northern District of Hlinois

x i i Sitting Judge if Oth:

venye Magitate Suge Sidney I. Schenkier than Assigned Judge

CASE NUMBER 03 C 7756 DATE 9/28/2004
CASE Miller, et al. vs. American Airlines, Inc.
TITLE

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

Q oO Brief in support of motion due

(3) o Answer brief to motion due___. Reply to answer brief due.

(4) Qa Ruling/Hearing on setfor att

(5) Oo Status hearing[held/continued to) (set for/re-set for] on setfor at.

(6) im} Pretrial conference[held/continued to] [set for/re-set for]on___—s set for at.
(7) a] Trial{set for/re-set for] on__—_at

(8) o [BenclyJury trial] [Hearing] held/continuedto__—_at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COFRCP4(m) ClLocal Rule 41.1 ClFRCP41(a)(1) COFRCP41(a)(2).

(10) MM — [Other docket entry] Enter Memorandum Opinion and Order. For the reasons stated in the attached
Memorandum Opinion and Order, the Court finds that this case involves a minor dispute, that precludes
this ADEA action pending completion of the arbitral processes created by the RLA. The Court therefore
stays this case until arbitration under the RLA is complete. As a result, American’s motion to dismiss
under Rule] 2(b)(1) is denied without prejudice (doc. # 14-1), and American’s Rule 12(b)(6) motion (doc.
# 14-2) and for summary judgment underR doc. # 14-3}are feed moot

qil1j)oa [For further detail see order (on reve d side offattay if, the original minute order.]

No notices required, advised in open court.

No notices required.
a umber of notices

SEP 29 2004

A | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
mm deputy’s
initials

oo. Date/time received in
Lis |” Seentral Clerk's Office

ailing deputy initials



interpreted. And, that interpretation is necessary to resolving the merits of plaintiffs’ ADEA claims.
Under well-settled law, this establishes that plaintiffs’ ADEA claims involve a minor dispute. E.g.,
Brown, 254 F.3d at 668 (a claim involves a minor dispute if “it cannot be adjudicated without
interpreting the CBA, . . .”).

The plaintiffs nonetheless argue that this case does not present a “minor dispute,” because
the parties agree on what “normal retirement age” means (i.¢., age 65), and this term is the only one
relevant to the dispute regarding comparable salary (Pls.” Mem. at 4). The Court finds this argument
meritless. By emphasizing that the parties agree that they understood what the “normal retirement
age” is (i.e., age 65), plaintiffs beg the question of what the “normal retirement age” means in the
context of Supplement U to the Tripartite Agreement. And, it is that latter question that presents an
issue of contract interpretation that is critical to plaintiffs’ ADEA claims. Indeed, the fact that the
parties spar about the purposes of the Tripartite Agreement (compare Pls.’ Mem. at 2 and Am.’s
Reply Mem. at 6) further demonstrates that the parties’ agreement about the numeric “normal
retirement age” far from resolves their more fundamental dispute about whether the contract
provides plaintiffs with the salary guarantee they claim.

The Seventh Circuit has made clear that the interpretation of a collective bargaining
agreement to determine if a claimed right exists must be left to the arbitral mechanisms established
under the RLA. Tice v. American Airlines, Inc., 288 F.3d 313, 317 (7" Cir. 2002). This is just such
acase. Accordingly, the Court finds, under the legal precedent summarized above, that this case

presents a minor dispute, as defined by the RLA.

il


B.

Thus, analysis of the present dispute boils down to two questions: (1) is the parties’ dispute
regarding interpretation of the Tripartite Agreement and Supplement U a “minor” dispute, and, if
so, (2) whether there is persuasive evidence that Congress intended to override the grant of exclusive
jurisdiction to the RLA arbitral process and to allow that dispute to be judicially-resolved in ADEA
cases. We take the minor dispute question first, as did the appeals court in Brown, because we
think that is the natural place to start. If there is not a minor dispute, then there is no need to decide
whether the RLA and the ADEA can be harmonized. Brown, 254 F.3d at 661-62.

1.

The Court finds that the dispute in this case is “minor” as defined by the RLA. The
plaintiffs’ EEOC charges, the predicate upon which this lawsuit is formed, frame the issue in this
litigation as follows: they were “forced to retire” and “subjected to different terms and conditions
ofemployment,” and they were “not offered a position with a comparable salary as required by [the]
Tripartite Agreement” because they were “beyond normal retirement age” when American grounded
the 727 jets (Am.’s Ex. A, Burdette Aff., Att. E (EEOC Charges of Miller and Royals)) (emphasis
added). As demonstrated by the undisputed facts set forth above, in this Court the plaintiffs have
repeatedly reaffirmed that their ADEA claims are premised on the theory that American deprived
them, on account of age, of a comparable salary that the Tripartite Agreement guaranteed: they have
made that allegation in their complaint, and they have admitted that this is their claim in discovery
responses. And, it is equally clear that American disputes plaintiffs’ contractual interpretation.

To resolve the parties’ dispute about whether there was a contractual requirement to provide

the plaintiffs with a comparable salary, the Tripartite Agreement and Supplement U must be

10


Ii.

Based on the foregoing undisputed facts, it is clear that the parties’ dispute concerns the
proper interpretation of the Tripartite Agreement and, in particular, Supplement U. The specific
issue the parties are disputing is this: whether Supplement U required American to pay the plaintiffs
a comparable salary to the one they received before their FE jobs were eliminated. That dispute
raises a jurisdictional issue: namely, whether the mandatory arbitration provision of the RLA strips
this Court of subject matter jurisdiction and “precludes” plaintiffs from proceeding with their ADEA
claims in federal court.* The answer, here, is that it does — at least for now.

A.

“Arbitral boards established pursuant to the Railway Labor Act have exclusive jurisdiction
to resolve disputes over the application of collective bargaining agreements in the railroad and airline
industries.” Tice v, American Airlines, Inc., 288 F.3d 313, 314 (7" Cir. 2002) (citing Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 252-53 (1994)). “Specifically, the RLA establishes a
mandatory arbitral mechanism for ‘the prompt and orderly settlement’ of two classes of disputes —
“major disputes’ and ‘minor disputes.’”” See Brown v. Illinois Central Railroad, 254 F.3d 654, 658
(7" Cir. 2001); 45 U.S.C, § 15a. Major disputes “relate to the formation of collective bargaining
agreements or efforts to secure them.” Hawaiian Airlines, 512 U.S. at 252 (citations and quotations

omitted).

“American frames the question as one of “preemption,” rather than “preclusion.” However, in Brown v. Illinois
Central Railroad Co., 254 F.3d 654 (7" Cir. 2001), the Seventh Circuit explained that, in cases that involve claims
arising under a federal statute (rather than state law), the issue of whether the RLA takes precedence over an independent
federal claim is a question of “preclusion” and not “preemption.” Jd. at 661-62.

7


judgment when “matters outside the pleadings are presented to and not excluded by the court... .”
Fed.R.Civ.P. 12(b). But, “the Federal Rules of Civil Procedure contain no analogous recognition
that a 12(b)(1) motion can evolve into dismissal pursuant to Rule 56.” Crawford v. United States,
796 F.2d 924, 928 (7"" Cir. 1986) (“The omission from the Federal Rules of Civil Procedure of a
provision for converting a Rule 12(b)(1) motion into a summary judgment motion if evidence is
submitted with it was not an oversight.”). “Whereas a grant of summary judgment is a decision on
the merits, . . . a court must dismiss the case without ever reaching the merits if it concludes that it
has no jurisdiction. In short, the question of jurisdiction is inappropriate for summary judgment, and
discussing the interplay of Rule 12(b)(1) and Rule 56 verges on non sequitur.” Capitol Leasing Co.
vy, FDIC, 999 F.2d 188, 191 (7" Cir. 1999) (citations omitted).

With these procedural considerations in mind, we consider the undisputed evidence
submitted by the parties insofar as it is relevant to determine the Court’s subject matter jurisdiction.
il.

The plaintiffs previously worked as Flight Engineers (“FEs”) for American Airlines
(American’s Local Rule 56.1 Statement of Undisputed Material Facts J 1, hereinafter“SMF __").
American hired Mr. Miller in 1955 and Mr. Royals in 1952 (SMF 42). As FEs, the plaintiffs were
unionized employees represented by the Flight Engineers’ International Association (the “FEIA”)
(SMF { 3). Throughout American’s history, FEs have worked only in the third-seat of the aircraft
(SMF 5). In the 1940's, prior to the introduction of commercial jet aircraft, American utilized FEs
to serve in the third seat of its propeller-driven aircraft and FEs were not required to be pilots (SMF
{| 6). Most FEs came from mechanical or maintenance backgrounds. Jd. In 1958, President

Eisenhower appointed a Presidential Fact Finding Board and in July 1958, that Board recommended


a contractual right by virtue of a collective bargaining agreement (or other employment contract),
anda statutory right to be free from discrimination, ‘both rights have legally independent origins and
are equally available to the aggrieved employee.”” Jd. at 317 (quoting Gardner-Denver Co., 415
USS. at 52). The appeals court explained that if the plaintiffs in Tice were correct in their contractual
interpretation, “they will prevail in the arbitration and be reinstated with backpay,” but, they also
might “then seek additional relief under the age discrimination law.” Tice, 288 F.3d at 317. The
appeals court stated that “[s]ince it is obviously the intention of the plaintiffs in our case 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 the arbitration in order to spare the
parties the burden of a second litigation should the arbitrators fail to resolve the entire controversy.”
Id. at 318.
The Tice panel sought to reconcile its analysis with the analysis of the panel in Brown:
We don’t think the opinion in Brown meant anything different from this,
despite the reference to potentially as distinct from actually dispositive
arbitration. Brown was trying to avoid the arbitral route — improperly,
because his claim depended critically on the resolution of a dispute over the
meaning of the collective bargaining agreement, and as the court said there
and we have said here, the arbitrators have exclusive jurisdiction over such
disputes. Brown, ... 254 F.3d at 658. The court added, consistently with our
analysis here, that “the adjudication of Brown’s ADA claim cannot go
forward until Article 55 and the seniority provisions of the CBA are
interpreted.” Jd. at 661 (emphasis added). The implication is that if Brown
obtained a favorable interpretation from the arbitrators, he could reinstate his

suit.

Tice, 288 F.3d at 318.

14


it. Compelled to choose between the two approaches, we opt to follow the analysis in Tice in this
case. Tice is the most current pronouncement of the Seventh Circuit on the proper disposition of a
federal lawsuit once RLA preclusion has been found to apply; moreover, one of the members of the
Tice panel also sat on the panel that decided Brown, suggesting that at least that judge saw no
inconsistency between the analysis in Brown and Tice. What's more, we think that the analysis in
Tice makes sense if, as Tice suggests, the Brown dismissal in fact contemplated that if the plaintiff
there “obtained a favorable interpretation from the arbitrators, he could reinstate his suit.” Tice, 288
F.3d at 318. As between the choice of dismissing a case and leaving it to a plaintiff to try to reinstate
it after the arbitration has concluded, and staying the case until the arbitration is concluded, a stay
has the advantage of avoiding the possibility of creating potential new statute of limitations issues
that might result from a dismissal and subsequent attempt to refile.*

Accordingly, employing the analysis in Tice, we consider whether there is any ADEA claim
that the plaintiffs still may be able to pursue after the RLA process has been completed. At this
point, we are unable to conclusively answer that question in the negative.

If the plaintiffs prevail in their interpretation that Supplement U of the Tripartite Agreement
guaranteed them a new job at a comparable salary once their FE jobs were eliminated, they would
be entitled to relief from the arbitral panel. Under Tice, however, there is no reason that they would

be foreclosed from seeking relief under the ADEA, if: (1) the federal statute provided other and

‘While we do not know whether the Brown panel contemplated the possibility of a new ADA suit being filed
after the completion of arbitration (since it did not expressly speak to that point), the dismissal order in that case on its
face would not foreclose that possibility. Neither the Seventh Circuit’s conclusion dismissing the case for lack of subject
matter jurisdiction, Brown, 254 F.3d at 668, nor the district court dismissal that if affirmed, No. 97 C 4836, 2000 WL
420855 (N.D. III, Apr. 18, 2000), states that the dismissal was with prejudice. And, a dismissal for lack of. subject matter
Jurisdiction “carries no res judicata consequences.” Bunker Ramo Corp. v, United Business Fe ‘orms, Inc., 713 F.2d 1272,
1279 (7 Cir. 1983).

16


issues involved in this case. Accordingly, American’s motion to dismiss pursuant to Rule 12(b)(1)
is denied without prejudice (doc. # 14-1), and American’s alternative motions, to dismiss under Rule
12(b)(6) for failure to state a claim (doc. # 14-2) and for summary judgment under Rule 56 (doc. #
14-3), are denied as moot.

1

American’s motion raises the threshold procedural issue of whether the motion should be
dismissed pursuant to Rule 12(b)(1), 12(b)(6) or Rule 56. As indicated, a related issue (not raised
by the parties) is also embedded in this motion, namely, whether the case should be stayed, rather
than dismissed, upon a finding that the RLA precludes this Court from adjudicating questions of
interpretation of the CBA that underlie plaintiffs’ ADEA claims. As we indicated above, and for
reasons we explain in more detail below, we conclude that the case should be stayed rather than
dismissed, pursuant to Tice. However, whether the result of RLA preclusion is the dismissal or stay
of the case, the question presented by American’s motion implicates the Court’s subject matter
jurisdiction. Therefore, we treat American’s motion as one under Rule 12(b)(1) and, as a result, we
“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.” Jd. (quoting Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7" Cir. 1979)).

We hasten to note that in doing so, we do not transform the Rule 12(b)(1) motion into one
for summary judgment under Rule 56. Unlike Rule 12(b)(6) motions, Rule 12(b)(1) motions for lack
of subject matter jurisdiction are not transformed into Rule 56 motions for summary judgment
simply because matters outside the pleadings are presented or considered. “Indisputably, a district

court can transform a motion for dismissal under Federal Rule 12(b)(6) into one for summary


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
SEP 2 9 2004
LOUIS MILLER and )
RICHARD J. ROYALS, )
)
Plaintiffs, ) No. 03 C 7756
) Magistrate Judge Schenkier
vs. )
)
AMERICAN AIRLINES, INC. )
)
Defendant. )

MEMORANDUM OPINION AND ORDER'

The defendant, American Airlines, Inc. (“American”), has filed a motion to dismiss, pursuant
to Federal Rule of Civil Procedure (“Rule) 12(b) (1) and (b) (6), or in the alternative, for summary
judgment pursuant to Rule 56. American’s motion seeks dismissal of a two-count complaint filed
by the plaintiffs, Louis W. Miller and Richard J. Royals, who each allege violations of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 ef. seq.

The threshold issue presented by American’s motion involves a question of preclusion under
the Railway Labor Act, 45 U.S.C. § 151 et seq. (“RLA”), that challenges the Court’s subject matter
jurisdiction. As we explain below, we conclude that this case presents a question of interpretation
of a collective bargaining agreement (“CBA”) that falls within the exclusive jurisdiction of the
arbitral process created by the RLA. But, rather than dismissing this case, as requested by American,
we follow the Seventh Circuit’s instruction in Tice v. American Airlines, Inc., 288 F.3d 313, 318-19

(7 Cir. 2002), and stay the case pending resolution, through arbitration, of the CBA interpretation

1On April 20, 2004, by consent of the parties, this case was reassigned to this Court for all proceedings,

including the entry of final judgment, pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1 (see doc. ## 10-12).



Having so concluded, the Court next must decide whether the ADEA and RLA can be
“harmonized.” In considering that question, we follow the Seventh Circuit’s direction that “the

preemption standards should govern in a preclusion case unless the analysis of the two federal

2.

statutes clearly suggest otherwise.” Brown, 254 F.3d at 662-63.

Plaintiffs have pointed to nothing in the language or legislative history of the ADEA
reflecting a “clear Congressional intent to override the RLA’s requirement that minor disputes be
adjudicated exclusively through the RLA’s arbitration machinery.” Brown, 254 F.3d at 663 (ADA
claim held precluded). In Tice v. American Airlines, Inc., 288 F.3d 313, 318 (7" Cir. 2002), the
appeals court held that the plaintiffs were barred from proceeding with ADEA claims whose
resolution depended upon an interpretation of a collective bargaining agreement. In so holding, the

Seventh Circuit explained at length why the preclusion analysis requires that minor disputes be

resolved through the RLA arbitral process:

The interpretation of a contract does not take place in a vacuum; it is nota
purely semantic exercise; it has regard for the consequences of alternative
interpretations, the parties being assumed to have intended something
sensible by their contract... . That is why we have said that ‘to interpret a
contract or other document, it is not enough to have command of the
grammar, syntax, and vocabulary of the language in which the document is
written. One must know something about the practical as well as the purely
verbal context of the language to be interpreted.’ (Citations omitted)... This
insight lies behind the frequently stated proposition that labor arbitrators do
not merely read the words of the collective bargaining agreement but
administer the ‘common law of the shop’ which is to say the set of practices
(‘course of dealing,’ in the lingo of ordinary contract law) that fill out those
words and compete the definition of the parties’ agreement sketched in the
actual document.

Tice, 288 F.3d at 316-17.

12



Notwithstanding this explanation, one may fairly debate whether Tice ’s reading of Brown
is in fact a revision of the analysis employed in that case. It strikes the Court that the different results
in Tice (staying the case) and Brown (dismissing the case) reflect different approaches to the question
of when a federal claim is “truly independent” of a collective bargaining agreement. In Brown, the
appeals court concluded that if there is a minor dispute involved in the federal claim, so that the
federal claim “could” (but might not) be conclusively resolved by an interpretation of the collective
bargaining agreement, then the federal court must dismiss the federal claim because it is not “truly
independent” of the contract interpretation question that must be resolved through the RLA
processes. Brown, 254 F.3d at 668.

On the other hand, Tice reasons that when a minor dispute is present that “could” (but might
not) resolve the federal claim, what that means is that the federal case may not proceed until the
arbitrator has interpreted the disputed portion of the contract upon which the federal claim depends
(ie., there is a threshold, central issue over which the federal court may not exercise subject matter
jurisdiction). However, if the contract interpretation reached in arbitration does not “conclusively”
resolve the entire dispute by the parties and the interpretation is consistent with the maintenance of
the federal claim, then there is no reason, (absent some other impediment to suit) why a plaintiff
cannot come back to federal court to seek independent relief under the appropriate federal statute.
This is the meaning that we draw from the statement that “district courts should retain jurisdiction
over a suit that must 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.” Tice, 288 F.3d at 318.

Having identified the possible tension in the approaches used by Brown and Tice concerning

the proper disposition of a federal suit when RLA preclusion applies, we are in no position to resolve

1S