By Pension and Benefits Editorial Staff
Dashing GoJet Airline’s hopes of escaping a $426K verdict in favor of a diabetic pilot, whom it fired once it determined he would not be able to return to flying within the maximum 12 weeks of leave to which he was entitled, the Seventh Circuit rejected its arguments that the district court erred in failing to compel arbitration and in denying its motion for judgment as a matter of law. The relevant CBA provisions did not clearly and unmistakably state that the pilot’s FMLA claims could only be brought in arbitration. Also, a reasonable jury could have made the findings and reached the verdict that it did with regard to his FMLA claims. As to the pilot’s cross-appeal, the district court erred in calculating front pay and the appeals court reversed as to that calculation.
Diagnosis and termination. In early June 2014, the GoJet pilot was diagnosed with diabetes mellitus and prescribed Metformin. He was not scheduled on any flights between then and June 10. Once that date arrived, he had a meeting with the FAA medical examiner, who explained he had to take the medication for 60 days after which he had to undergo testing before being cleared to fly.
The pilot informed GoJet of his diagnosis and that he could not fly and submitted FMLA paperwork. He was never directed to the airline’s FMLA policy. Ultimately, he notified GoJet that he would need leave through at least late August. Thereafter, the Operations VP instructed others to have no contact with the pilot. The airline did not communicate with him until July 31, when he was told he had been scheduled to resume flying. Early in August, the base manager emailed the pilot, telling him that in order to extend his FMLA leave he would need to provide recertification by his doctor, but the pilot did not receive that email until over two weeks later. He submitted the paperwork on August 25, but the airline had already decided to fire him.
Arbitration. The pilot and his union submitted a grievance and initiated the arbitration process. The airline asserted that the grievance had not been properly filed and refused to enter arbitration. The pilot brought his dispute to court. Ultimately his claims went to trial before a jury, which found in his favor, concluding that GoJet had interfered with his FMLA rights and retaliated against him. The court held a bench trial on damages and awarded the pilot a total of over $426K. After further motions were denied, the airline appealed. The pilot cross-appealed with regard to some of the district court’s findings and conclusions regarding damages.
Arbitration not required. The airline argued that the district court erred by refusing to compel arbitration and denying its motion to dismiss based on failure to arbitrate. As a general rule "arbitration decisions do not have preclusive effect in later litigation" based on antidiscrimination statutes, but an exception can apply where there is an explicit mandate in the CBA that such claims would be resolved in arbitration. GoJet contended that three CBA sections, when read together, satisfied the applicable standard. The appeals court was not persuaded. Section 24 of the CBA provided that "[a] grievance is a dispute between the parties arising under the terms of this Agreement." Section 25 discussed the arbitration process. And section 15 stated only that the employer "shall grant family and medical leaves in accordance with applicable law."
Explaining that the "north star" of its analysis was whether the waiver was "clear and unmistakable," which was a high bar, the court could not say in this case that the language in the CBA met that standard. The CBA included only a "nondescript catch-all that disputes ‘arising under the terms of this Agreement’ would be bound to arbitration" and only generally required the employer to grant leave "in accordance with applicable law." It did not specifically state that it was incorporating prohibition of FMLA violations and reading Section 24 to have not precluded litigation of FMLA claims was its most natural reading.
Jury’s core function. As to the district court’s denial of GoJet’s motion for judgment as a matter of law, the court also affirmed. The airline argued that the evidence showed the pilot could not have returned to work after 12 weeks of leave. His leave officially began on June 11 and, therefore, he had to be willing and able to perform his job’s essential functions on September 3. The pilot asserted that if the airline had communicated with him, this would have happened. Whether he would have received the FFA approval sooner was a jury question because it required inferences to be drawn from factual evidence and that task was one "quintessentially entrusted to the jury." A reasonable jury could have plausibly credited the argument that if the pilot got his tests in order more quickly, then the FAA could have issued an approval at least one or two days sooner. The court’s conclusion in this regard, it explained, "illustrate that we view what GoJet calls ‘speculation’ as part and parcel of the jury’s core function to determine what inferences to draw from the available evidence."
No-contact policy was interference. With regard to evidence supporting the pilot’s interference claim, the court agreed that the failure to give required FMLA notices to him "plausibly interfered with" his FMLA rights. Moreover, the airline’s no-contact policy, which ran counter to the regulation’s expectation that employers be responsive with regard to employees’ FMLA questions, could lead a reasonable jury to conclude GoJet interfered with his rights.
The court also rejected the airline’s argument that the pilot failed to provide "sufficient notice" of his need for leave under the FMLA. He provided notice that was "as soon as practicable under the facts and circumstances of the particular case" and remained communicative from there on.
"Perverse incentive." Turning to the pilot’s cross-appeal regarding the lower court’s calculation of damages, the court found an abuse of discretion in one regard—the district court had calculated front pay damages based on two different values for how much work it expected the pilot to do at GoJet and his new employer, SkyWest. He worked 20 hours more per week in an effort to meet the higher salary he had received at GoJet, but the district court should have calculated the damages amount without including his earnings for those hours. Approving of its inconsistent monthly work figures "risks creating a perverse incentive for would-be FMLA plaintiffs to work less in their new jobs."
SOURCE: Cloutier v. GoJet Airlines, LLC, (CA-7), Nos. 19-1322, 19-1773, 19-1823 and 19-3279, April 29, 2021.
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