Opinion
Civil Action No. 02-646-C.
May 24, 2004
ORDER
This action is before the court upon the defendants' motion for summary judgment (DE 25).
Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). In order to survive summary judgment, the plaintiff must come forward with evidence on which the jury could reasonably find for the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The plaintiff must present evidence beyond the mere allegations of his complaint. Celotex Corp., 477 US at 321-2; Fed.R.Civ.Pro. 56(e). Viewing all of the evidence in the light most favorable to the plaintiff, the following factual background is the basis for the plaintiff's causes of action. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Statement of Relevant Facts
The plaintiff, Captain Alex Szabo, worked for Braniff Airways until that company went bankrupt in the 1980's. Capt. Szabo applied to numerous other airlines in 1982 because Braniff was undergoing bankruptcy reorganization, but the plaintiff did not receive any offers. Plaintiff's Deposition, Volume 1, 21-2. In 1987, Capt. Szabo inquired into employment opportunities with United Parcel Service Company ("UPSCo") by contacting Lee Wallace, Flight Operations Manager for UPSCo. Plaintiff's Deposition, Volume 1, 11, 19. He did not apply for other positions with other companies at that time. Plaintiff's Deposition, Volume 1, 27-28. An initial interview was conducted by Bob Frenzel of UPSCo. A second interview was conducted by Jerry Bolles, wherein, the plaintiff claims, Mr. Bolles told the plaintiff he would never be paid less than the pilots he supervised. Plaintiff's Deposition, Volume I, 33. After negotiations, Capt. Szabo accepted a position as a management pilot in the training department with UPSCo.
There are two groups of pilots working for UPSCo — union, or line, pilots and management pilots. Line pilots are covered under a collective bargaining agreement and fly "revenue" for UPSCo. Management pilots are not members of a union and are not covered by a collective bargaining agreement. Management pilots train, supervise, and manage line pilots. Management pilots also fly revenue planes for the company during strikes and labor disputes; during peak season; during Civil Reserve Air Fleet operations; and during various other times when the line pilots were unable or unwilling to fly. In order to perform "revenue" flights, a pilot must be certified by the Federal Aviation Administration ("FAA"). The FAA prohibits a pilot from flying "revenue" once the pilot reaches sixty years of age. Federal Aviation Regulations Part 121.383(c). The FAA also requires a person to have medical certification to be qualified to fly.
Revenue flying means piloting a plane from the captain's or first officer's seat when the plane is carrying passengers or cargo.
Captain Szabo underwent heart surgery in September 1996, two months prior to his 59th birthday. Due to FAA regulations, he was unable to fly for six months after his surgery, at which point he could elect to begin the medical re-certification process. Six months after his surgery, in April 1997, the plaintiff was five months away from turning age 60 (in November 1997) and losing his flight qualification pursuant to FAR Part 121.383(c). The plaintiff did not get re-certified. His salary was reduced in January 1998.
The Plaintiff's Claims
The plaintiff has brought claims of fraud, promissory estoppel, conspiracy, and age discrimination. The plaintiff claims that Jerry Bolles told him that "he would never be paid less than the pilots he supervised." Plaintiff's Complaint. This statement is the basis for the plaintiff's claims of promissory estoppel, fraud, and conspiracy. The plaintiff bases his age discrimination claim on the allegation that, because of his age, his salary was reduced when he reached age sixty (60).
Fraud
Under Kentucky law, fraud is a material representation that is false and is known to be false or made recklessly, made with inducement to be acted upon, acted in reliance thereon and causes injury. United Parcel Service Co. v. Rickert, 996 S.W.2d 464, 468 (Ky. 1999). The plaintiff claims that Mr. Bolles's statement that Captain Szabo would never be paid less than the pilots he supervised is a material representation which proved to be false. The plaintiff alleges that the statement was made to induce him to accept a job with UPSCo. The plaintiff further alleges that Mr. Bolles knew the statement was false, but offers no supporting evidence. The plaintiff has also failed to provide any evidence of detrimental reliance. Instead, the plaintiff has merely reiterated the allegations of his complaint. The plaintiff states that he left his prior job because the company was going bankrupt and did, in fact, dissolve. Plaintiff's Deposition, Volume I, 18-19. Further, the plaintiff stated that he likely would have taken the job with UPSCo even if the alleged promise had never been made. Plaintiff's Deposition, Volume I, 165. Without detrimental reliance, the plaintiff's claim of fraud fails.
The court notes that the plaintiff alleges that he "clarified his position on what he relied on from Mr. Bolles in his deposition." Response. However, the court could find no such clarification and the only citation to the plaintiff's deposition is to a few pages covering a discussion of the plaintiff's receipt of letters from the FAA discussing his medical certification and his hesitation in complying with the medical testing given the limited number of months he would be able to use his certification considering that his 60th birthday was approaching. Plaintiff's Response p. 5, citing Plaintiff's Deposition Volume III, 110-114.
While the plaintiff relies on United Parcel Service Company v. Rickert, 996 S.W.2d 464 (Ky. 1999), the facts of that case are far different. In that case, the company promised the appellee, Rickert, a job if he remained a contract carrier during a transitional period of time. Rickert presented evidence that the promise was made and that the appellant never intended to hire all of its contract carriers. Further, Rickert demonstrated reliance by showing that he declined to look for other employment during the transitional period, and, as a consequence, lost seniority and benefits due to his failure to secure work earlier. Prior to the enunciation of the promise, Rickert had prepared his résumé and had distributed it to some employers. After the promise was made, his efforts immediately ceased. Rickert presented evidence that during this time period other airlines were hiring pilots. He also produced evidence that the only reason the appellant promised him a job was to induce him to continue to fly planes during the transitional period. Id. In contrast, Captain Szabo has failed to allege facts or present evidence of detrimental reliance. The plaintiff cannot go forward without any proof of the essential elements of his claim, and summary judgment in favor of the defendants is appropriate on this claim.
Promissory Estoppel
In Kentucky, the doctrine of promissory estoppel is defined as follows: "A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise." Floyd v. Christian Church Widows and Orphans Home of Kentucky, 176 S.W.2d 125, 130-131 (Ky. 1943) (citing Restatement (Second) of Contracts § 90). The basis for this claim is the same as the basis for the claim of fraud. The essence of a claim for promissory estoppel is detrimental reliance. McCarthy v. Louisville Cartage Co., Inc., 796 S.W.2d 10, 12 (Ky.App. 1990). Once again, the plaintiff simply has no proof that he relied on the alleged promise to his detriment. Rather, he admits that he left his old job because his company was going bankrupt and he likely would have accepted the job with UPSCo even without Bolles's alleged promise. Therefore, the defendant must be granted summary judgment on this claim as well.
Conspiracy
Next, the plaintiff claims that Mr. Bolles and UPSCo conspired to violate KRS Chapter 344, Civil Rights, by discriminating against the plaintiff because of his age under KRS 344.280 and common-law conspiracy. The plaintiff failed to respond to the defendants' motion as to this claim, and has brought forth no evidence supporting the claim, other than the allegation in the plaintiff's complaint that Bolles and UPSCo conspired to discriminate against the plaintiff on the basis of age.
The plaintiff's common law claim is time-barred. KRS 413.140 (1); District Union Local 227, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO v. Fleischaker, 384 S.W.2d 68, 72 (Ky. 1964). Alternatively, the common-law conspiracy claim is preempted by the Kentucky Civil Rights Act, because that statute declares the unlawful act and specifies the remedy available, limiting the plaintiff to the remedy provided therein. Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985).
The plaintiff's claim under KRS 344.280 is apparently the first of its kind. All claims brought under KRS 344.280 up to this point have been claims for retaliation. The language of the statute states that it is unlawful for two or more people to conspire:
To retaliate or discriminate in any manner against a person because he has opposed a practice declared unlawful by this chapter, or because he has made a charge, filed a complaint, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this chapter. . . .Id. The plain language of the statute indicates, and Kentucky state and federal courts have found, that the statute prohibits conspiracy to discriminate based on protected action taken by the aggrieved, or, in other words, conspiracy to retaliate. See, e.g., Kentucky Dept. of Corrections v. McCullough, 123 S.W.3d 130, 133 (Ky.,2003) (discussing KRS 344.280 under heading "Retaliation"); Frazier v. Ford Motor Co., 2001 WL 1689816, at *2 (W.D.Ky.,2001) (discussing KRS 344.280 as providing claims for retaliation or discrimination against plaintiffs because of their opposition to perceived unlawful employment practices). The plaintiff did not take any protected action and has not alleged any retaliation.
Even if a claim for conspiracy to discriminate on the basis of age could be brought under KRS § 344.280, the plaintiff has presented no evidence beyond the allegations in his complaint on this claim. A claim cannot survive a motion for summary judgment on this basis alone. Williams v. Ford Motor Co., 187 F.3d 533, 544 (6th Cir. 1999). Accordingly, summary judgment is granted to the defendants on the conspiracy claims.
Age Discrimination
Finally, the defendants seek summary judgment on the plaintiff's claim of age discrimination. The plaintiff claims that he was discriminated against on the basis of his age when his salary was reduced. There was an unwritten policy at UPSCo that pilots who lost their flight qualification were re-assigned to other duties at a reduced salary. Plaintiff's Deposition, Volume II, 51-3. The policy was reduced to writing some time after the plaintiff's salary was lowered. It states:
A UPS management flight crewmember may also permanently lose his flight qualification. After a permanent loss of qualification, such as a permanent loss of medical certification, or prohibition from performing pilot duties after age 60 [FAR Part 121.383(c)], management flight crewmembers have the opportunity to move into positions not requiring these qualifications.
Defendant's Exhibit 8, Flight Operations Policy Manual. The policy discriminates, if at all, only when applied to employees who are age 60 and are prohibited from flying based on their age. When the policy is applied to employees who have lost their qualification for any other reason, the policy is not discriminatory.
A facially discriminatory policy, by definition, discriminates each time it is applied. E.E.O.C. v. Ky. State Police Dept., 80 F.3d 1086 (6th Cir. 1996). A policy is facially discriminatory if it expressly grants or denies a privilege based on a pilot's age. The UPSCo written policy is based on permanent loss of flight qualification. Thus, UPSCo's written policy is facially neutral.
The plaintiff has presented no direct evidence of age discrimination. Therefore, the plaintiff's case is one based on circumstantial evidence of age discrimination and, accordingly, the burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. DiCarlo v. Potter, 358 F.3d 408 (6th Cir. 2004) ( McDonnell Douglas burden-shifting analysis applies to age discrimination cases). Under this analysis, the plaintiff must come forward with a prima facie case of age discrimination. Then, the burden shifts to the defendant to articulate a legitimate reason for the alleged discriminatory practice. Finally, the plaintiff has the burden of showing that the articulated reason is actually a pretext for discrimination. Id.
To establish his prima facie case, the plaintiff must show that: (1) he is a member of a protected age group; (2) he was qualified for the position in question; (3) nonetheless, he was subjected to an adverse employment action; and (4) he was treated differently from similarly situated persons outside the class. See Alexander v. Local 496, Laborers' Int'l Union, 177 F.3d 394, 402 (6th Cir. 1999).
It is undisputed that the plaintiff is a member of a protected class defined by age. The court will assume for the purpose of this motion that the plaintiff was qualified for a Flight Pay Grade 14 position, although that fact is disputed. The plaintiff did suffer an adverse employment action when his salary was reduced. However, the plaintiff has not produced any evidence that he was treated differently from similarly situated persons outside the protected class. The defendants, in contrast, have presented the court with an affidavit from Lee Wallace asserting that two flight-qualified supervisors permanently lost their first-class medical certificates before reaching age sixty and that each was subjected to the policy and decreased salary. The plaintiff has not refuted that proof.
The defendants have articulated a legitimate reason for decreasing the salary of management personnel who lose their flight qualification. The defendants assert that flight qualification is a valuable asset in their employees; that they carefully planned and structured their company so that management personnel can fly aircraft in specified situations; and that once such an employee loses flight qualification, his services are not as valuable to the company and, consequently, a salary decrease is in order.
To demonstrate that the articulated reason is a pretext, the plaintiff is "required to show by a preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that the proffered reason did not actually motivate [the defendant's action], or (3) that they were insufficient to motivate [the defendant's action]." Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (emphasis in original) (citation omitted). The plaintiff argues that the explanation is a pretext for discrimination because his duties were not actually altered; only his salary changed. The plaintiff offers no other evidence of pretext. The plaintiff's argument, reduced to its simplest elements, is that it is discrimination to prohibit a pilot from flying revenue due only to the pilot's reaching age 60. The United States Supreme Court has already denied review of the United States Court of Appeals for the District of Columbia Circuit's rejection of this argument. Professional Pilots Federation v. Federal Aviation Administration, 118 F.3d 758 (D.C. Cir. 1997), cert. denied, 523 U.S. 1117 (1998) (ADEA does not limit FAA's authority to prescribe mandatory retirement age; FAA gave adequate consideration to alternatives to the "age 60 rule" before rejecting them). The plaintiff has presented no evidence that the defendants' proffered reason was not based in fact, was not the actual motivation for the policy, or was insufficient to motivate the action. Accordingly,
The plaintiff does not directly argue that the FAA Regulation is invalid, nor could he in light of Professional Pilots Federation and its progeny.
IT IS ORDERED that the defendants' motion for summary judgment (DE 25) is GRANTED and the plaintiff's claims are dismissed.
IT IS FURTHER ORDERED that the pre-trial conference scheduled for June 21, 2004, and the trial scheduled for August 16, 2004, are canceled.