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June 24, 1997

STEWART W. BECKETT JR., Plaintiff, against ATLAS AIR, INC., Defendant.

The opinion of the court was delivered by: DEARIE

 DEARIE, District Judge.

 In August 1994, plaintiff Stewart Beckett ("Beckett") was terminated from his employment as a pilot for defendant Atlas Air, Inc. ("Atlas") on grounds of insubordination. Beckett claims he was fired for engaging in collective bargaining activities protected by the Railway Labor Act, 45 U.S.C. §§ 151 et seq. (the "RLA"). *fn1" Atlas has moved for summary judgment.

 Throughout most of 1994, the International Brotherhood of Teamsters (the "IBT") was attempting to organize crew members at Atlas. Beckett, meanwhile, was engaged in what he describes as "collective bargaining" efforts on behalf of his non-unionized co-workers. Management claims it was concerned that any perceived support of Mr. Beckett's efforts could subject it to charges of "sponsoring" an in-house union while the IBT was attempting to organize Atlas employees. The RLA, like the National Labor Relations Act (the "NLRA"), requires an employer to maintain "laboratory conditions" during a union election campaign. Otherwise, if a union garners enough support to demand an election and then loses, it can petition the National Mediation Board (the "NMB") to overturn the election results based on the employer's "sponsorship" of a rival collective bargaining representative during the election campaign. See 45 U.S.C. § 152, Ninth. *fn2" In such cases, the NMB can order a second election, conducted under special conditions whereby a union can be certified without the support of a majority of eligible voters. *fn3"

 In light of these concerns, Atlas claims it scheduled a meeting with Beckett on July 26, 1994, for the purpose of explaining that he was not to represent to other employees that he was in any way engaged in collective bargaining with the company. Beckett claims he believed the purpose of the meeting was to continue discussions regarding employee grievances and certain conditions of employment. He now describes the meeting as a "set up," in that Atlas had invited its labor counsel to be present. According to Atlas, Beckett was clearly instructed that it would be "intolerable" for him to represent or imply in any way that he was authorized to bargain collectively with management as an employee representative. These instructions were repeated in follow-up correspondence from Atlas' counsel.

 Atlas claims that after the meeting, Beckett contacted other crew members to announce his collective bargaining "successes" at the July 26 meeting. Atlas describes Beckett as somewhat delusional and self-important, experiencing the meeting not as an admonishment but as an important bargaining session filled with significant accomplishments on behalf of his co-workers. On August 4, 1994, Atlas fired Beckett when he returned from a vacation, citing his "insubordination" in the aftermath of the July 26 meeting. After management read a letter to Beckett's co-workers explaining the termination, Beckett filed this action, alleging wrongful termination and defamation.

 After Atlas filed a motion to dismiss the complaint, this Court dismissed the defamation claim by Memorandum and Order dated August 14, 1995. 1995 U.S. Dist. LEXIS 11842, 1995 WL 498703 (E.D.N.Y. Aug. 14, 1995). The Court ruled, however, that an implied private right of action does exist for violation of pre-certification employee rights created by the RLA, and refused to dismiss the wrongful discharge claim. Atlas now moves for summary judgment on the wrongful discharge claim or, in the alternative, for an order: (a) awarding Atlas partial summary judgment on Beckett's claim for lost wages, in that Federal Aviation Administration ("FAA") regulations would have required his disqualification as a pilot less than two years after his termination, upon his sixtieth birthday; (b) striking the demand for punitive damages; and (c) striking the jury demand. For the reasons articulated below, defendant's motion is denied in all respects.



 The NLRA does not apply to employers subject to the RLA, 29 U.S.C. § 152(2) (defining "employer" for NLRA purposes), but many of the cases which do address RLA wrongful discharge claims have adopted standards analogous to those employed in similar cases under the NLRA. See, e.g., Lebow v. American Trans Air, Inc., 86 F.3d 661, 665-66 (7th Cir. 1996) (applying NLRA standard in RLA wrongful discharge action); Schlang v. Key Airlines, Inc., 794 F. Supp. 1493, 1498 (D. Nev. 1992), vacated in part on other grounds, 158 F.R.D. 666 (D. Nev. 1994). Under those standards, which the Court will apply in this case, a wrongful termination plaintiff must demonstrate: (a) he was engaged in activity protected by the RLA; (b) defendant was aware of that activity; (c) defendant harbored animus toward the protected activity; and (d) the animus was a causal factor in plaintiff's termination. See Carry Cos. of Ill., Inc. v. NLRB, 30 F.3d 922, 927 (7th Cir. 1994). This framework has been developed in cases under Section 8(a)(3) of the NLRA, which makes it an unfair labor practice to "discriminate in regard to . . . tenure of employment . . . to encourage or discourage membership in any labor organization." 29 U.S.C. § 158(a)(3).

 As this Court stated in its August 14, 1995 Memorandum and Order, the RLA does not explicitly provide a private right of action for wrongful discharge. Rather, the statute creates an administrative scheme requiring parties to collective bargaining agreements in the airline and railway industries to submit disputes to prescribed methods of dispute resolution before resorting to strikes or other forms of self-help. Since these mechanisms are not available to non-unionized employees, this Court and others have concluded that a private right of action exists for such employees for violations of the rights provided them by the RLA. See Aug. 14, 1995 Memorandum & Order, at 3-4, 1995 U.S. Dist. LEXIS 11842, 1997 WL 498703, at *2 (citing additional cases).

 Burdens of Proof and Production

 The parties disagree on the analytical approach the Court should take in assessing Beckett's claim. Atlas urges the Court to apply a burden-shifting approach similar to that articulated by the Supreme Court for cases arising under Title VII of the Civil Rights Act of 1964, as amended. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981) (once plaintiff makes prima facie showing, burden shifts to employer to produce a non-violative reason for discharge; burden then shifts back to employee to show employer's justification is pretextual; ultimate burden of proof on all issues remains with employee); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) (same). Beckett, on the other hand, claims that in the labor context, a pure burden-shifting analysis is appropriate: once a prima facie showing is made, the burden of proof (not just production) shifts to the employer to demonstrate that an illegal motive played no part in the termination decision. Both parties rely on the seminal case of Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced, NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989, 71 L. Ed. 2d 848, 102 S. Ct. 1612 (1983).

 In Wright Line, the National Labor Relations Board (the "NLRB") reformulated the burden of proof applicable to NLRA wrongful termination cases, holding that the NLRB General Counsel, acting as complainant, has the burden of proving, among the other elements of its case, that anti-union animus contributed to the employee's termination. If the General Counsel meets this burden, the employer nevertheless can avoid liability by showing, by a preponderance of the evidence, that the termination would have occurred regardless of the employee's participation in protected activities. See NLRB v. Transportation Management Corp., 462 U.S. 393, 395, 76 L. Ed. 2d 667, 103 S. Ct. 2469 (1983) (summarizing Wright Line). The First Circuit, in reviewing the NLRB's Wright Line decision, held that it is improper to place such a heavy burden on the employer. 662 F.2d at 904. The court ruled that an employer cannot be required to prove that the termination would have occurred on legitimate grounds, but may be required to produce evidence sufficient to rebut the presumption of wrongfulness created when the General Counsel has demonstrated that an unlawful discharge has occurred. Id. The court did not apply Burdine's burden shifting approach, as Atlas implies. Rather, it simply noted an analogy between its analysis and that Title VII case, in that, under Burdine, employers are given a burden of producing a legitimate reason for the discharge, while the burden of proof remains at all times with the complainant. Id. at 907. *fn4"

 In Transportation Management, the Supreme Court affirmed the NLRB's approach, rejecting the First Circuit's criticisms. 462 U.S. at 401-04. The Court interpreted the NLRB's paradigm as creating something in the nature of an affirmative defense for employers found to have committed unlawful terminations. That is, the charging party has the burden of proving its prima facie case; if this burden is met, the employer can avoid liability by showing, by a preponderance of the evidence, that the termination, though motivated by anti-union animus, would have occurred on other grounds regardless of the employee's protected activities. Id.

 In Director v. Greenwich Collieries, 512 U.S. 267, 114 S. Ct. 2251, 2257-58, 129 L. Ed. 2d 221 (1994), the Supreme Court clarified Transportation Management in light of section 7(d) of the Administrative Procedure Act, 5 U.S.C. § 556(d), which provides that the proponent of an order must bear the burden of proof. While correcting a statement in Transportation Management regarding application of section 7(d), the Court reaffirmed the earlier ruling. That is, under Wright Line, the charging party bears the burden of proof on its affirmative case, while the employer bears a similar burden on its affirmative defense. Id.; see Southwest Merchandising Corp. v. NLRB, 311 U.S. App. D.C. 370, 53 F.3d 1334, 1339-40 (D.C. Cir. 1995).

 Thus, if Beckett's claim were stated under the NLRA, the Court would properly reject Atlas' invitation to apply a Burdine-type burden shifting paradigm. Neither party has cited, nor has the Court located, a case indicating the result should be any different under the RLA. Faced with a similar claim, the Seventh Circuit has ruled that "the same burden-shifting method employed in unlawful discharge claims under the [NLRA] applies to claims brought under the RLA." Lebow, 86 F.3d at 665-66. The Court concludes that the proper approach to the parties' burdens of proof in this RLA wrongful discharge action is that announced by the NLRB in Wright Line and discussed by the Supreme Court in Transportation Management. That is, Beckett has the burden of proving each element of his prima facie case. If he succeeds, Atlas may nevertheless avoid liability if it can prove an affirmative defense by a preponderance of the evidence.

 The Wright Line framework has been created for what the NLRB calls "mixed motive" or "dual motive" cases -- where an employee claims he was fired in retaliation for union organizing or activism and the employer proffers some alternate basis for the termination. Holo-Krome Co. v. NLRB, 954 F.2d 108, 110 (2d Cir. 1992). Atlas argues, however, that this is not a "dual motive" case, but a "pretext" case. "Pretext" cases arise where the employer claims the termination was based solely on legitimate grounds which the complainant sees as a pretext for anti-union animus. In "dual motive" cases, the employer may acknowledge that protected activities were a factor in its decision, but argues that the employee would have been terminated on other grounds in any event. Id. The NLRB does not distinguish between the two in applying its Wright Line analysis, see id. at 110-13 (describing this failure to distinguish as a source of judicial confusion); Wright Line, 1980 NLRB LEXIS 939, at *4 ("there is no real need to distinguish between pretext and dual motivation cases"). Thus, the Wright Line analysis applies regardless of whether this is seen as a "dual motive" or a "pretext" case.

 To a great extent, this case revolves around whether Beckett's activities were in fact "protected." Atlas' proffered ground for the termination is Beckett's allegedly insubordinate refusal to desist from claiming he was engaged in "collective bargaining" activities. If Beckett was in fact engaged in RLA-protected activities, Atlas could no more terminate him for announcing those activities than for engaging in them. On the other hand, if his activities were not protected, then Beckett's termination cannot give rise to a wrongful discharge claim under the RLA. Thus, it is not ...

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