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September 16, 1986

DONALD ROBINSON, et al., Plaintiffs,

The opinion of the court was delivered by: SWEET


Defendant Pan American World Airways, Inc. ("Pan Am") has moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P. dismissing the complaint of plaintiffs Donald Robinson, Charles Adams, James Wolfanger, Karl Rahn and Ronald Fregara *fn1" (hereinafter "Plaintiffs") on the grounds that their complaint is barred by the statute of limitations on their Railway Labor Act ("RLA") claim, 42 U.S.C. § 151 et seq. Plaintiffs contend that Pan Am should be equitably estopped from raising the limitations bar because of Pan Am's continuous delays in concluding the internal grievance proceedings and continuous assurances of a settlement of the dispute. For the reasons set forth below, Pan Am's motion for summary judgment is denied, and summary judgment for plaintiff is granted on the statute of limitations issue.

 Prior Proceedings

 Plaintiffs filed this action on June 12, 1984 alleging that they had been dismissed from their positions as "production foreman" in retaliation for their support of a labor organization's attempt to organize this employee group, allegedly in violation of Section 2, Fourth of the Railway Labor Act, 45 U.S.C. § 152 Fourth. In opinions reported at 606 F. Supp. 279 (S.D.N.Y. 1985) and 597 F. Supp. 1063 (S.D.N.Y. 1984) this court denied, both initially and on reargument, Pan Am's motion to dismiss the complaint as untimely, rejecting Pan Am's contention that the six month statute of limitations contained in section 10(b) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(b) should be applied to suits alleging discharge for pro union activities under the RLA.

 Upon interlocutory appeal pursuant to 28 U.S.C. § 1292(b) the Second Circuit reversed this determination, Robinson v. Pan American World Airways, 777 F.2d 84 (2d Cir. 1985) holding that the use of the six-month limitations period in the NLRA was applicable in light of the Supreme Court's opinion in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 76 L. Ed. 2d 476, 103 S. Ct. 2281 (1983). The court remanded the action to this court to determine whether plaintiffs could equitably estop Pan Am from raising the limitations defense using the equitable tolling standards set out in Smith v. American President Lines, Ltd., 571 F.2d 102 (2d Cir. 1978).


 Familiarity with the facts set out in the prior opinions of the court, supra, is assumed, however, a brief outline of the limitations issue is required. Plaintiffs were dismissed from their positions as Pan Am production foremen on July 15, 1981 and filed management grievances pursuant to section 325 of the Personnel Policy Manual, alleging that their termination was in retaliation for their support of the International Brotherhood of Teamsters ("IBT") drive to represent production foremen which was then pending before the National Mediation Board.

 Section 325 of the Pan Am Personnel Policy Manual then in effect "establishes an appeal mechanism for use by management and exempt clerical employees who believe disciplinary action was unjustly or unfairly administered, company policy was improperly interpreted or applied, or unjust treatment was otherwise imposed." The procedure outlined provided for a Management Appeals Board to prepare and sign a decision within thirty calendar days of the grievance hearing, send this to the Vice President of Personnel for review, and return it to the grievant within approximately seven calendar days. The introductory section of the Manual qualified its provisions with the following language:

 The policies described here are not conditions of employment, and the language is not intended to create a contract between Pan Am and its employees. . . . The Company retains the right to change, modify, suspend, or cancel in whole or in part any of the published personnel policies of the Company at any time and without advance notice except when a notice period is specifically provided for in a particular policy.

 The Plaintiffs contacted Mr. Norman Marsich ("Marsich"), IBT Local 732 Business Representative and Mr. William F. Genoese ("Genoese"), Director of the IBT Airlines Division, to represent them in and monitor the progress of the grievance proceedings. However, no ruling was ever made by the appeals board on these grievances. Robinson v. Pan American World Airways, supra, 777 F.2d at 89. Marsich and Genoese regularly contacted several Pan Am officials concerning the undecided grievance hearing results and the possible reinstatement of the Plaintiffs, including Mr. C. Edward Acker, Chairman of Pan Am, Martin R. Shugrue, Senior Vice-President for Personnel Administration, and Robert Sheils, Labor Relations Administrator. The Plaintiffs' opposition papers annex over a dozen letters and mailgrams concerning these foremen beginning on October 31, 1981 with a letter from Genoese to Acker, and ending with a letter from C. Raymond Grebey, Jr., Senior Vice-President of Industrial Relations on July 19, 1984, including a telex from Acker to Genovese dated July 12, 1983 acknowledging a meeting set for July 14, 1983 to discuss the termination and grievance issues.


 Robinson, Adams, Wolfanger and Rahn

 Pan Am contends that the Plaintiffs filing of a grievance pursuant to the "Pan American Personnel Policy Manual" ("PPM") did not toll the six-month statute of limitations on their RLA claim, and that Pan Am should not be equitably estopped from invoking the time limitation on these claims because any reliance on the unfinished grievance proceedings was unreasonable as a matter of law.

 The parties face a high hurdle as they seek to dispose of the statute of limitations issue by summary judgment. A motion for summary judgment may not be granted "unless the entire record shows a right to judgment with such clarity as to leave no room for controversy and establishes affirmatively that the adverse party cannot prevail upon any circumstances." Heyman v. Commerce and Industry Ins. Co., 524 F.2d 1317, 1319-1320 (2d Cir. 1975). The Second Circuit applies these rules strictly, Rodrigues v. Village of Larchmont, 608 F. Supp. 467, 471 (S.D.N.Y. 1985), reserving summary judgment for cases which present no genuine disputed issues of material fact. This strict standard is applied in recognition of the fact that summary judgment deprives the non-moving party of the opportunity for a full factual development of the record through trial, see Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir. 1975), and the severity of its consequences requires the district courts to resolve all reasonable inferences in favor of the party ...

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