Supplement U was never part of the case and the failure of plaintiffs to create a triable issue on that

contention even if it was part of the case. Caisse Nationale de Credit Agricole v. CBI Indus, Inc.,
90 F.3d 1264, 1270 (7% Cir. 1996).4

There is also precedent for ihe conclusion that plaintiffs’ non-response is an admission. In
the context of pleadings such as answers to a complaint or answers to interrogatories and requests
toadmit, the phrase “neither admit nor deny” cannot be asserted without being decmed an admission
unless the party asserting the lack of knowledge carefully explains the basis for the lack of
knowledge. See 8A Fed. Prac. & Proc. Civ.2d § 2261. And, more often than not, the assertion that
is not admitted or denied will be admitted by a court. See, e.g., Becker v. Warren Tp. High School
Dist. No. 121, No. 93 C 5658, 1993 WL 434087, * 1 (N.D. UL Oct. 21, 1993) (Shadur, J.) (admitting
complaint’s allegations because Fed.R.Civ.P. 8(b) does not permit a party to answer with the phrase
“neither admits nor denies”). See also Reed v. Gardner, 986 F.2d 1122, 1128 (7" Cir, 1993)(where
key fact neither admitted nor denied by plaintiff because fact not in record, court deemed fact
admitted based on failure to controvert fact; Judge Posner called deemed admission an “inferred”
rather than “explicit” admission).

Here, we have similar facts to those in Reed. Atoral argument, this Court notified plaintiffs"
counsel that it deemed the response “neither admit nor deny” to defendant's paragraph 12 in the fact
statements (o be an admission. ‘fhe Court explained why it found this to be the case, and it offered
plaintiff an opportunity to deny the factual assertion. Plaintiffs’ counsel could not deny paragraph

12. While the admission here is one that is “inferred” rather than “explicit” — as in Reed —plaintitls,

“We note that plaintiffs never requested limited discovery for the purpose of answering or responding ta this
factual assertion and, as we advised plaintiffs” counsel, it is too lace now to do so (12/06/06 Tr., at 34}.

20


of the argument plaintiffs advanced throughout this litigation, namely, that Supplement U required

American to comparably pay them and provide new positions (AA’s Mem. at 9).

American argues that this claim is beyond the scope of the administrative charges filed in the
FEOC, and thus fails to satisfy the exhaustion requirements of the ADEA (AA’s Mem, at 8-11). We
agree thal the claim falls outside the scope of the charges.

The ADEA requires that a plaintiff filc an administrative charge before filing a civil action
in federal court. Noreuil v. Peabody Coal Co., 96 F.3d 254, 258 (7" Cir. 1996) (citing 29 U.S.C. §
626). The “scope of the charge” doctrine is intended to ensure thal a complaint filed in district court
enconipass only those allegations within the predicate EEOC charge ior the dual purposes of: (1)
ensuring thatthe EEOC is able to investigate the allegations and, if possible, play a conciliatory role
between the parties; and (2) ensure that the charged party receives full notice of the allegations
within the charge so that it can properly defend and or negotiate the claims. See Noreuil, 96 F.3d at
258-59. Under the scope o! the charge doctrine, civi! actions allcging violations of the ADEA “are
cognizable only if they are ‘like or reasonably related to the allegations of the charge and growing
out of such allegations.’” Jd. (quoting Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 544 (7 Cir,
1988)). “[C]laims are not like or reasonably related unless there is a factual relationship between
them. This means that the EEOC charge and the complaint must, al minimum, describe the same
conduct and implicate the same individuals.” Cheek v. Western & Southern Life Ins, Co., 3) F.3d
497, 501 (7" Cir. 1994) (original emphasis). Claims are “adequately related under the scope-of-the-
charge doctrine where ‘the factual relationship of the . . . charges . . . is so related and intertwined

in time, people and substance thal lo ignore that relationship for a strict and technical application of



In 1958, President Dwight Eisenhower initiated a study which resulted in a recommendation

that third-seat crew members on turbo jel aircraft become pilot-qualified (AA’s 56.1 St. § 7).
Consequently, American and other airlines began to hire pilots to fill the third-seat position,
However, in the 1960s, a jurisdictional dispute ensued between unions representing pilots (the APA)
and the FEs (the FETA} (AA’s 56,1 St. § 8). That dispute was resolved when American, the APA
and the FEIA entered into a “Tripartite Agreement,” which was executed on December 11, 1964
(AA's 56.1 St. 8; Tripartite Agreement, Ex. 5). As part of the Agreement, FEs, including the
plaintiffs, were “grandfathered” into their FE positions; thus, even FEs who were not pilots could
remain employed as FEs in the third-seat of the aircraft wntil they retired (AA’s 56.1 St. ¥ 9).

On August 12, 1983, American, the APA and the FEIA negotiated a supplement to the
Tripartite Agreement known to the partics as “Supplement U” (AA's 56,! St. {J 10-11). Supplement
U was negotiated due to concerns that advanced aviation technology would eliminate the need for
the FE positions prior to the time when some FEs would vest fully in their pensions under the
Retirement Benefit Plan of American Airlines, Inc. For Flight Engineers (the “Pension Plan”) (/d.).

Supplement U provides:

tn the event a surplus of flighi engineers exists, cach flight engineer so affected, who

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

position not covered by the FETA Collective Bargaining Agreement. Tlnot qualified,

such employee shall be afforded training to enable satis actory 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 lor 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


although non-moving parties, bear the burden of proof on the merits of their claim. And, thus, they

may not rest on the pleadings (or on their non-admission/non-denial, but must instead show that
there is a genuine issue of material fact. Sarsha y. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7" Cir,
1993)). See alse N.D. Ill. Local Rule 56.1(b)(3)(C). The plaintifl’s have failed to do so here. ‘Thus,
we deem as admitted paragraph 12 of American’s Rule 56.1 Statement.

‘That admission brings the case to a close. Even if plaintifis could assert their new claim, it
would fail ultimately on the merits, and summary judgment would be entered based on the admission
to paragraph 12 and the holding in Hazen Pauper case.

It is therefore ordered that the Clerk of the Court deny defendant’s motion to dismiss (doc.
# 48-1) and grant its motion for summary judgment (doc. # 48-2), entering summary judgment on
plaintiffs’ Complaint in defendant’s favor. This case is terminated.

ENTER:

NAL

SIDNEY I. S€HENKIER
United States Mayistrate Judge

Dated: February fp,2007

21


Plaintiffs argue that Supplement LU, on its facc, makes an age-based distinction which, when

applied to plaintiffs, violates the ADLA by denying them the benefits promised under Supplement
U to persons under the age of sixty-five. However, we find that the undisputed material facts
undermine this claim of discrimination.

Hazen Paper v. Biggins, 507 U.S. 604 (1993) makes clear that employment decisions made
based on age-correlated factors that are not discriminatory, such as pension vesting, do not violate
the ADEA. In Zfazen Paper, the Supreme Court was asked to decide whether an employer violated
the ADEA when it terminated an cmployce shortly before his pension benefits vested. The Supreme
Court held that it did not because the ADEA does not protect an employee against terminations (or
any other adverse employment action) related (o pension vesting or any other business purpose. The
Supreme Court held that simply because pension vesting, as a motivation, was correlated with age,
did not mean that the decision to terminate was motivated by age. In other words, “proof of
discriminatory motive is critical” in an ADEA action, and decisions based on factors other than age
which may be correlated. or associated with age are not unlawful. fd at 611. See also EEOC v.
Francis W. Parker Sch. 41 F.3d 1073 (7" Cir. 1994) (upheld decision finding that school did not
violate ADEA when it refused to hire more experienced applicant over less experienced applicant,
despite the correlation between age and experience, because decision was based on school salary
system which would have required schoo! to pay more for experienced person).

In paragraph 12 of American’s Rule 56.1 Statement of Material, Undisputed Facts , American

asserts as undisputed the foilowing statement:

18


I'Es, thus undermining the premise of their age discrimination claim—that American deprived them
of a contractual right on the basis of age. As a result, American argues that the complaint should be
dismissed for lack of subject matter jurisdiction (as the Court may not revisit the arbitrator's
interpretation of Supplement U), or that summary judgment should be granted (on the ground that
the undisputed fact of the meaning of Supplemental U defeats plaintiffs’ claim).

Second, American argues that plaintiffs may not avoid that result by recasting their claim in
light of the arbitrator's ruling. Plaintiffs now seek to base their claim not on the premise that
Supplement U entitled them to a new position at comparable pay, but rather on the proposition thal
itis discriminatory on its face because Supplement U affords that protection to those under sixty-five
years old but not to those who, like plaintiffs, have reached the age of sixty-five. American offers
a varicty of arguments to contend that any such claim would be procedurally barred.

Third, American argues (hat, in uny event, the new claim of age discrimination that plaintiffs
seek to advance fails on the merits. American argues that the undisputed facts show thal the
distinction in Supplement U between those who have reached age sixty-five and those who have not
was motivated by the legitimate goal of protecting and maximizing employee pensions, and not by
the illegitimate purpose of age discrimination. Thus, says American, on the merits Supplement U
passes muster under Hazen Paper v. Biggins, 507 U.S. 604 (1993).

AY

American argues that, in light of the arbitrator’s ruling, we lack jurisdiction over the claims

plaintiffs have consistently advanced: that Supplement U guaranteed them jobs at pay comparable

to their FE pay, and that American deprived them of that contractual right on the basis of age.

10



craft in its fleet (AA's 56.1 SL 17). At that time, only three FEs were employed by American: the
two plaintiffs and one other individual who is not part of this case. All three FEs had reached NRA
and had vested fully in their pensions (AA’s 56.1 St. 417).

After notifying plaintiffs that they would no longer work in the FE position, American
offered them the option of retiring (with full pension), or to remain employed with American in
alternative positions as a “Staff Assistants” in the publications department located in Dallas, Texas
{AA’s 56.1 St. © 18; Pls.’ 56.1(b) Add’l Facts { 5). The staff assistant position did not carry with
ita salary comparable to the pay that plaintj {I's had been earning in their positions as FEs (Pls.”
56.1(b) Add’! Facts * 6-8). The Staff Assistant positions were the only positions offered to the
plaintiffs (Pls.” 56.1(b) Add’ Facts J 11). Plaintiffs declined the offer of alternative positions; they
instead elected to retire and to exercise their right under the Pension Plan to take lump sum payouts
(AA's 56. St. © 2).

In January 2003, plaintiffs filed EEOC Charges, which form the predicate to this lawsuit
(AA's 56.1 St. 9 22). In their Charges, both plaintiffs alleged that the Tripartite Agreement
guaranteed them another position of comparable salary when their positions were eliminated.
Plaintiff Miller alleged specifically: “L was not offered a position with a comparable salary as
required by the Tripartite Agreement” (AA’s 56.1 SL, Ex. 6E (Miller Charge)). Plaintiff Royals
made the identical allegation: “T was not offered a position with a comparable salary as required by
the Tripartite Agreement” (/d, (Royals Charge)). Plaintilfs both alleged that this deprivation of a
contractual right to a new position with comparable salary constituted discrimination based on their
age (AA‘s 56.1 St., Ex. 6E). Plaintiifs’ EEOC charges did not claim that it would constitute age

discrimination if Supplement U itself drew a distinction between FEs who lost their FE jobs when


his normal flight engineer retirement date and, thereafter, his salary will be governed
by the compensation plan applicable to the new position.

(AA’s 56.1 J 11, Ex. 5) (emphasis added).

The Pension Plan detines NRA --“normal retirement age” —as age sixty-five (AA’s 56.1 St.
$20). Under the terms of the Pension Plan, NRA is when an employee may elect to retire and to take
his or her full pension (AA’s 56,1 St. | 14). An cmployee’s full pension amount is based on his or
her“Final Average Compensations.” The Pension Plan defines “Final Average Compensation” “as
of any date, 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
Member's 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” (AA’s 56.1 St." 13).

‘The purpose of the salary protection provided in Supplement U was to ensure that FEs would
be able {o continue to receive the FE rate of pay until they reach NRA, even if the FE jobs were
eliminated prior to that time and the FEs shifted to positions that ordinarily would pay at a lower
rate. By providing this salary protection, Supplement U ensured that an FE’s Pension that he was
entitled to receive upon reaching normal retirement age would be based on the highest salary earned
as an FE (AA’s 56.1 St. 912).

Between }983 and May 2002, the salary guarantec of Supplement U was never invoked: no
FE ever transferred to a new job, nor did they seek or receive a comparable salary to that eamed as

au FF (AA’s 56.1 St. ff! 16, 29), In May 2002, American grounded the last remaining three-seat

2Plaintitts’ response purported neither to admit nor deny their fact stalement. As we explain below, this
response constitutes an admission of American's statement for purpoxcs of this summary judgment motion.

6


The parties drafted [Supplement U], in 1983 to ensure that if three-sear craft were
eliminated, professional Flight Engineers would continue to receive the same rate of
pay (in whatever alternative job they held) until they reached Normal Retirement Age
so that their Pension would be based on the highest salary eamed as a Flight Engineer

(AA's 36,1 St. § 12 (citations omitted)).

American thus states, as a factual matter, thal Supplement U was drafted and intended to
ensure that Flight Engineers were able to obtain their ful] pensions at the highest earned salary prior
to pension vesting, which occurred at the “Normal Retirement Age.” American contends, therefore,
that the distinction drawn between Normal Retirement Age persons and those who had not yet
reached NRA was based on a pension vesting motivation and thus under Hazen Paper does not
violate the ADEA (AA’s Reply at 7-8).

Tn their Local Rule 56.1(b)(3)(C) written response, plaintiffs said they “neither admit nor
deny” American's fact statement. Plaintiffs’ failure to atfirmatively deny paragraph 12 and to offer
evidence to support such a denial constitutes an admission based on the plain language of Local Rule
56.1(b)(3)(C), which states that any statements of fact that the non-moving party fails 10 controyert
will be deemed admitted. Further, at oral argument when the Court advised plaintiffs’ counsel that
“in [its] judgment [the response] neither admit nor deny admits” (12/06/06 Tr., 32-35), plaintiffs’
counsel maintained the position that it could neither admit nor deny American’s statement, When
pressed to offer an explanation for this failure to admit or deny, plaintiffs’ counsel stated that he had
no basis upon which to deny it because there had been no discovery in the case regarding American’s
motivation for drailing Supplement U to link the promise of comparable pay to “Normal Retirement

Age.” That response underscores both the point that plaintiffs’ current contention regarding

19


American grounded its three-seat craft and their FE positions were eliminated in 2002 (AA’s 56.1

St. § 28). Moreover, at all relevant times, American has disputed plaintiffs’ interpretation of
Supplement U of the Tripartite Agreement and has interpreted that provision as not requiring it to
provide plaintiffs with a position of comparable salary/equal compensation (AA’s 56.1 St. J 28).

The arbitration proceeding contemplated by the Court's September 29, 2004 ruling took place
on March |4, 2006. ‘The arbitrator considered the following two issues: (a) “Was a grievance timely
filed protesting the Company's refusal to offer employment to the grievant{s) at salaries comparable
to those they received as flight engineers?” and (b) “Was the Company, upon the elimination of the
flight cngincer position, obligated by Supplemient U to offer the grievants alternative employment
al salaries comparable to those they had received als] flight engineers?” (AA*s 56, 1 St. { 31; Ex.
12, at 2). Inhis June 12, 2006 decision, the arbitrator answered both questions in the negative and
denied plaintiffs’ grievance (AA’s 56.1 St. 32). With regard to the meaning of Supplemental U,
the arbitrator held that “[bJoth the language of Supplement U and the testimony regarding the
drafters’ intent are persuasive that the right to continued employment at flight engineer pay
terminates at age 65” (AA's 56.1 St. 33; Ex. 12 at 9.6). The arbitrator further noted that “absent
Supplement U, there would be no basis for a claim that the Company was required to provide Night
engineers with alternative employment at flight engineer pay when there was no longer employment
in the flight engineer classification” (AA’s 56.1 St. 134; Ex. 12 at 8).

il.

American asserts three grounds in supportits of motion to dismiss or lor summary judginent.

First, American argues that the arbitrator’s decision conclusively has determined that Supplement

U did not contractually guarantee plaintils a new job at comparable pay to what they received as


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

EASTERN DIVISION
LOUIS W. MILLER and }
RICHARD ROYALS, )
)
Plaintiffs, )
) Case No. 03 C 7756
vs. } Judge Sidney 1. Schenkier
}
AMERICAN AIRLINES, INC., }
)
)
Defendant. )

MEMORANDUM OPINION AND ORDER'

Plaintiffs filed this action in October 2003 alleging violations of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 ef seg. In their complaint, Louis Miller and
Richard J, Royals (“plaintiffs”) alleged thal in May 2002, the defendant, American Airlines, Inc.,
(“American”) eliminated their jobs as flight engineers (“FEs”). At that time, plaintiffs, who were
ages 70 and 74, claimed that American then discriminated against them on the basis of their age by
refusing to provide them with jobs of comparable salary to that which they had received as PEs, an
entitlement that plaintiffs claimed was provided by a collective bargaining agreement: in particular,
Supplement U of the Tripartite Agreement.

The Court concluded that plaintiffs’ claim raised a question of interpretation of the collective
bargaining agreement that fell within the exclusive arbitral process created by the Railway Labor Act

(RLA"), 45 U.S.C. § 151, et seg.: specifically, whether the collective bargaining agreement

‘On April 20, 2004, by the purties’ consent, the Executive Committee reassigned this case to this Court, pursuant
to 28 U.S.C. § 636(c) and Northern District of Illinois Local Rule 73.1(b), to conduct any and all proceedings in this case
and to enter final judgment (doe. # 10-12).



Supplement U. Miffer, 2004 WL 2203425, at *10. Mor this reason, we deny American’s motion to
dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).
2,

Because the Court retains subject matter jurisdiction over the original claim as pled and
litigated, namely, whether American discriminated against plaintiffs on the basis of age because it
Tefused to offer them positions of comparable pay after the elimination of their FE positions, we
must decide whether this claim survives summary judgment. We hold that it does not.

Thete is no dispute that the arbitrator’s decision interpreted the term “normal. . . . retirement
date” in Supplement U, like the term NRA in the Pension Plan, to mean as “age sixty-five.” Nor
is there any dispute that, as the arbitrator stated, under that interpretation, Supplement U did not
provide plaintiffs with a contractual right to wage protection since they had already reached age
sixty-five, The question on summary judgment is whether the undisputed fact of this interpretation
eliminates the basis alleged by plaintiffs for their discrimination claim.

The Court finds that il does. “In the absence of such a contractual provision, an employer
would have no duty [under the ADEA] to give another job to an employce validly disquatified from
holding his present job.” Tice v. American Airlines, Inc., 288 F.3d 313, 315 (7TM Cir. 2005). In this
case, the action Ametican took was triggered in the first instance by the elimination of the FF
positions —an act that plaintiffs do not suggest was based on age, but, thatall partics agree was based
instead on advances in technology that led to the grounding of the 727 jets and ¢limination of the FE
positions plaintiffs occupied. The ADEA did nol, by its terms, require American to offer plaintiffs

another job at any salary, much less at comparable pay. No doubt that is why plaintiffs cast their

12



Alternatively, American argues that it is entitled to summary judgment on the merits of that claim.
We reject Amcrican’s jurisdictional argument, but agree that summary judgment is appropriate.
1.

With respect to the threshold issue of subject matter jurisdiction, American argues that
plaintiffs’ ADEA claims are now “precluded” by the arbitrator’s interpretation of NRA in
Supplement U. Specitically, based on the arbitrator’s decision that the term “NRA” means “age
sixty-five,” defendants argue that the plaintiffs no longer have a contractual right to claim that they
should have received comparable positions and pay once the FE positions were eliminated, because
both plaintiffs were over sixty-five years of age when that event occurred (AA‘s Mem. at 6-8). Thus,
argucs American, it cannot be held liable for denying plaintiffs this benefit based on age, and this
Court lacks subject matter jurisdiction over the plaintiffs’ ADEA claims because the arbitrator’s
tuling conclusively resolved them (/d. at 7).

The Coun disagrees. ‘Ihe arbitrator’s decision interpreting Supplement U was required under
the RLA, so that we would avoid “judicial incursion into what the RLA defines as the exclusive
province of... CBAs.” Brown v, Hlinvis Central RR., 254 F.3d 654, 664 (7" Cir, 2001). But, while
the arbitrator's interpretation plainly has the effect of eviscerating plaintiffs’ discrimination claim,
which was based on their flawed reading of Supplement U, it did not resolve the recast claim that
plaintiffs now seek to pursue: that Supplement U, as interpreted by the arbitrator, violates the ADEA
onits face, The arbiwator himself recognized that this question was outside the scope of his arbitral
mandate (see AA’s 56.1 St, Ex. 12 at 9.1.6). And, this very question is one we envisioned that

plaintiffs “clearly” would seck to raise if the arbitrator rejected plaintiffs’ interpretation of


they were younger than sixty-five years old and those who lost their FE jobs after they turned sixty-

five years old.

American denicd plaintiffs’ EEOC charges of age discriminalion, on two grounds. First,
American argued thal such a dispute involved disagreement over the proper interpretation of the
Tripartite Agreement and what was required by its terms, a disagreement that had to be resolved
under the RLA. Thus, American argued that plaintiffs’ EEOC charges were preempted (AA's 56,1
St. 923; Ex. F). Second, American argued that, in any event, Supplement U did not contractually
obligate American to provide plaintiffs with new positions at comparable pay, since plaintiffs already
had passed the normal {light engineer retirement date of sixty-five years old. ‘Thus, American argued
that it did not diseriminatorily deprive plainus of a right they otherwise were entitled to receive
under Supplement U (d.). American’s EEOC response did not address the question of whether
Supplement U would violate the ADEA by distinguishing between FEs who reached the age of 65
years old and those who had not.

The FFOC made no determination of plaintiffs’ charges, and issued plaintif{s (heir right to
suc letters. Thereafter, on October 31, 2003, plaintiffs timely filed this lawsuit. In their complaint,
plaintiffs alleged that American “promised the Plaintill[s] a position which provided cqual
compensation” (AA’s 56,1 St. 124). In response to American’s Requests to Admit, both plaintiffs
admitted thal this allegation was based on their EEOC charge that the Tripartite Agreement required
American to provide them a “position of comparable salary” (AA’s 56.1 St. $25), At all times
throughout their Charges and during the course of this lawsuit (at least, until the arbitral ruling),
plaintiffs alleged that they were entitled, “as required by” or “as guaranteed by” Supplement U of

the Triparlite Agreement, to receive a position of comparable salaryfequal compensation when



Under our local rules, a party opposing summary judgment who fails to offer evidence to

rebut a statement of undisputed material fact set forth by the movant docs so at his peril: “All
material facts set (orth in the statement required of the moving party will be deemed to be admitted
unless controverted by the statement of the opposing party.” LR 56.1(b}(3)(C)}. Local Rules of the
United States District Court for the Northem District of Hlinois. Our appeals court has repeatedly
upheld the application of these rules, as appropriate and necessary tools of case management.
Koszotla v, Bd. of Educ. of the City of Chi., 385 F.3d 1104, [109 (7 Cir. 2004) (“[wle have
emphasized the importance of local rules and have consistently and repeatedly upheld a district
court's discretion to require strict compliance with its local rules governing summary judgment”).
II.

The undisputed material facts that support entry of summary judgment in defendant's favor
are as follows and are taken from the parties’ Local Rule 56.1 Statements of Material Fact
(hereinafter “Rule 56.1 St. J___”).

Yhe plaintiffs are Louis W. Miller and Richard J. Royals. In 1952 and 1955, Messrs. Miller
and Royals, respectively, were each employed by American Airlines as FEs who occupied the “third
scat” of propeller-driven aircraft (AA’s 36.1 St. ff 1-2, 6). Prior to the introduction of commercial
jetaircrali, FEs were hired from mechanical or maintenance backgrounds (AA’s 56.1 St. © 6): there
was no requirement thal FEs be pilot-qualitied (7d, J 6). The plaintiffs were hired from these
backgrounds into the FE positions (AA’s 56.1 St. ¥ 9, citing Ex. 6, Burdette Decl. © 13). The
plaintiffs remained in the FE positions from the date of their hire until the date plaintiffs retired

(AA's 56,1 St. $21).


the rule would subvert the remedial purposes of the Act.’” Noreuil, 96 F.3d at 259 (quoting Avistufek

v. Hussmann Foodservice Co., 985 F.2d 364, 368 (7 Cir. 1993)).

The plaintiffs’ assertion that Supplement LU, on its face and by its terms, discriminates against
them on the basis of age, was not alleged in their EEOC Charges. In their Charges, both plaintiffs
alleged that the Tripartile Agreement guaranteed them another position of comparable salary when
their positions were eliminated. Plaintiff Miller alleged specifically: “I was not offered a position
with acomparable salary as required by the ‘lri-Partite Agreement” (AA’s 56.1 St., Ex. 61’). Plaintiff

Royals alleged specifically: “J was not offered a position with a comparable salary as required by the

Tri-Partite Agreement” (/d.).

Likewise, ihe Complaint does not allege that Supplement U violates the ADEA on its face.
To the contrary, the complaint alleges that American “promised the Plaintiff[s] a position which
provided equal compensation” (AA’s 36.1 St. 24). The word “required” in the plaintiffs’ REOC
charges js consistent with the word “promised” as used in their Complaint. In response to
American's requests to admit, plaintiffs admitted that the allegations in their complaint were based
on their LLOC allegations that the Tripartite Agreement “requires” American to provide them a
“position of comparable salary” (AA’s 56,1 St. 4) 25). Thus, at all times throughout their EEOC
proceedings and in this lawsuit, plaintiffs alleged that they were entitled to, “as required by” or “as
guaranteed by” Supplement U of the Tripartite Agreement, a position of comparable satary/equal
compensation when American grounded its three-seat craft and their positions were eliminated
(AA's 56.1 St. 928).

Now that this claim has been torpedoed by the arbitrator’s ruling, plaintiffs seek to salvage

their discrimination claim by basing it on a new premise: that Supplement U, by its terms and on

i5


promise and guarantee to those who were over the age of sixty-live (NRA). There is no evidence
that the EEOC or American construed the Charges in that fashion. Indeed, American’s response to
the EEOC Charges show that it did not: American responded to the allegations of discrimination
in the Charges, and did not address the issue of whether Supplement U would violate the ADEA if
it did not provide the salary protection guarantee that plaintiffs claimed.

The purpose of an EEOC Charge is to provide notice and opportunity to investigate and
conciliate plaintiffs’ claims. Plaintiffs’ EEOC Charges did not provide notice of any claim that
Supplement U violated the ADEA on its face; nor did it provide American with an opportunity to
respond to such a claim or the EEOC with an opportunity lo investigate and conciliate it.

As the case law makes clear, the “scope of the charge” doctrine seeks to strike a reasonable
balance that does not unduly compromise the remedial purposes of the ADEA by applying the rule
in an overly technical fashion against persons who often file FEOC Charges without aid of counsel,
but does not allow a plaintiff to assert claims in litigation that stray so far from the charge that the
important goals of notice, investigation and conciliation are disserved. In this case, striking this
balance leads us to conclude that plaintiffs’ attempt 1o assert that Supplement U is facially
discriminatory is nat like or related to their EEOC Charges, and thus is not properly a part of this
case,

Lon

We now tum to the merits of plaintiffs’ new Supplement U claim. We do so to further
explain why it would be futile to allow plaintiffs to amend the complaint to include that claim (if,
as we have held, it is not currently in the case) and, in any event, would not survive summary

judgment (if, as plaintiffs argue, it already is a part of the case).

17



material fact, and that the moving parties arc entitled to judgment as a matter of law. Fed. R. Civ.
P, 56(c). With regard to factuat issues, a genuine issue [or trial exists when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby,
ine., 477 U.S. 242, 248 (1986). Ifthe evidence is merely colorable, or is not significantly probative,
summary judgment may be granted. /d. at 249-50. In deciding a motion for summary judgment, the
Court must vicw all evidence in the light most favorable to the nonmoving party, and must draw all
reasonable inferences in the nonmovant’s favor. Santiago v. Lane, 894 ¥ 2d 218,221 (7° Cir. 1990).

When a material fact or a set of facts yiclds competing but reasonable inferences then there
is a genuine issue that precludes summary judgment. The non-moving parly’s burden is to identify
facts that are both material and genuinely disputed. Celotex Corp. v. Catrett, 477 U.S, 317, 324
(1986). To be material, a fact must be able to affect the outcome under the substantive law
governing the motion. Jnsolia v. Philip Morris Inc., 216 F.3d 596, 595-99 (7" Cir, 2000). A
“genuine issue” exists if a reasonable trier of fact could find in favor of the non-moving party. fd.
at 599. To establish a genuine issue, the party opposing the motion for summary judgment must
serve and file, pursuant to Local Rule 56.1, a concise statement outlining the material facts that
require denial of summary judgment, supported by citations to the evidentiary materials that support
those denials (¢.g., affidavits, depositions, answers to interrogatories, admissions etc). Fed. R. Civ.
P. 56(c}. Although the party secking summary judginent bears the initial burden of proving that there
is no genuine issue of material fact, Celotex, 477 U.S. at 323, the non-moving party cannot rely upon
the pleadings alone, but must usc the evidentiary tools outlined above to identify the material facts

that show there is a genuine issue for trial, fd, at 324; Insolia, 216 F.3d at 598.


required American to provide jobs at comparable salaries to FEs whose positions were eliminated,
if the FEs had already reached the age of sixty-five years old. This question, in tum, required
interpretation of the phrase “normal . . . retirement date” as used in Supplement U, but originates in
the parties’ pension plan as “normal retirement ageTM (“NRA”).

Thus, on September 28, 2004, the Court stayed this case while the term in Supplement U of
the Tripartite Agreement was interpreted by an arbitrator pursuant to the mandatory arbitration
provision of the RLA. See Miller v. American Airlines, Jnc., No. 03 C7756, 2004 WL 2203425, 175
L.R.R.M. (BNA) 3348 (N.D. IIL. Sept 28, 2004). On June 12, 2006, the arbitrator issucd a decision
interpreting “normal retirement date” and NRA to mean age sixty-five, finding that the collective
bargaining agreement did not guarantee positions of comparable pay to plaintiffs when their FE
positions were eliminated after they rcached the age of sixty-five.

In response to the arbitrator's decision, American has moved to dismiss (doc. # 48-1), or for
summary judgment (doc. # 48-2). The parties have fully bricfed the motion, and the Court heard oral
argument on December 6, 2006. At that time, the Court invited the further submission of authority
directed to one of the legal issues raised by American, On December 13, 2006, American submitted
additional authority; plaintiffs declined to do so.

We have now considered the arguments and authorities of the parties, as well as (he summary
judgment factual record, For the reasons that follow, we deny the motion to dismiss (doc. # 48-1),
but grant (he motion for summary judgment (doc. # 48-2).

1
We begin with the legal standards that govern summary judgment motions, which are well-

established. Summary judgment is proper ifthe record shows that there is no genuine issue as to any


case as one based on American having a contractual obligation to do so, an obligation American

allegedly breached on account of plaintiffs’ age.

But, now that it has been determined through arbitration that Supplement U did not grant
plaintiffs the contractual right they asserted, their claim of discrimination for breach of that alleged
right must fail. The Court therefore concludes that plaintiffs’ original claim, as pled, does not
survive summary judgment.

8B.

Understanding the frailty of the ADEA claim based on their rejected interpretation of
Supplement U, plainuils attempt to rcformulate their ADEA claim. Now, plaintiffs say,
Supplement U as interpreted by the arbitrator violates the ADEA on its face because Supplement U
impermissibly grants rights to those who have not yet reached the age of sixty-five that it denies to
those who have reached the age of sixty-five. American argues that this recast claim is procedurally
barred for three reasons: (1) plaintitfs failed to exhaust the ADEA’s administrative requirements:
(2) plaintiffs’ new claim falls outside the scope of their EEOC charges: and (3) plaintiffs’ new claim
is untimely. For the reasons discussed below, we find that plaintiffs’ new claim would fall outside
the scope of the charge, so we do not reach the question of mootness and futility given this ruling.

1

Plaintiffs claim that Supplement U, on its face, violates the ADEA and discriminates against
them based on age because if denies them the benefits they seek based on their age (Pls.” Mem. at
9). In other words, the plaintiffs now argue that Supplement U, by its terms and on tls [ace,
discriminates in violation of the ADEA because il draws a line between those who are under sixty-

five and those who are over sixty-five. We note, as does defendant, that this is the complete inverse

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its face, discriminatorily denied plaintiffs the same benefit (comparable position and pay) as those
who are under age sixty-five. However, this claim ef discrimination is not alleged in the Complaint,
a point made clear by plaintiffs’ responses to the requests to admit. A complaint that, as here, alleges
that American discriminately denied plaintiffs a benefit they were contractually entitled to receive
cannot be fairly read as impliedly embracing the opposite proposition: that Supplement U violates
the ADEA because it does not contractually guarantee to plaintiffs a benefit it would extend to those
younger than sixty-five years old. Perhaps plaintiffs could have asserted such a claim in the
alternative — but they did not do so, Thus, in these circumstances, we conclude that the Complaint
as iLis now cast does not include a claim that Supplement U violates the ADEA on its face.

That might not be an insuperable bar to plaintiffs asserting that claim now, since amendments
to pleadings under Federal Rule of Civil Procedure 15(a) are liberally granted. Foman v. Davis, 371
U.S. 178, 182 (1968) But, an exception to that liberality exists where the proposed amendment
would be futile. /d@. And, here, we conclude that allowing plaintiffs to now assert a claim that
Supplement U is facially discriminatory would be futile because that claim is not like or related to
plaintiffs’ EEOC Charges.

The EEOC Charges allege that Supplement U “required” or “guaranteed” that plaintiffs
receive comparable-pay positions once they lost their FE positions. These are not words that would
reasonably put American or the EEOC on notice that plaintiffs might alternatively argue that there

was no requirement or guarantee in Supplement U, but rather the very opposite: a denial of that

“We note plaintiffs have not sought to amend the Complaint. Instead, plaintiffs argue that they are entitled Lo
make a facial challenge to Supplement U based on the claim of age discrimination they have alleged. In essence,
plaintift’s argue that the faciat challenge to Supplement U is not a new claim, but merely a new theory offered to support
their existing claims, We disagree. Plaintiffs’ new allegation is so contrary to the claim it now alleges in the complaint
(ax. it involves a completely different contract interpretation, and would implicate completely different liability
discovery) that we cannot find it embedded within the current Complaint.

16