Davis v. United Airlines, Inc., 2001-AIR-5 (ARB Apr. 23, 2002)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue date: 23Apr2002

CASE NO.: 2001-AIR-5

In the Matter of

GEORGE T. DAVIS, Jr. and DIANE DAVIS,
    Complainants

    v.

UNITED AIRLINES, INC.
    Respondent

   This matter involves a dispute concerning alleged violations by the Respondent-employer, United Airlines, Inc., ("United") of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR Act), 42 U.S.C. § 42121, (the "Act").

   On April 20, 2002, Complainant, Diane Davis filed a Cross Motion for Summary Judgment. Mrs. Davis alleges that United concealed the identity of the decisionmaker(s) who authorized Mrs. Davis' April 23, 2001 Level 1 discipline. Mrs. Davis further alleges that United concealed the identity of the decisionmaker in order to make it impossible for Mrs. Davis to perform meaningful discovery regarding the motivation underlying the discipline against her. Moreover, Mrs. Davis argues that United, should be prohibited from introducing evidence on the issue of its motive for issuing the April 23, 2001 discipline. Accordingly, Mrs. Davis concludes that the Court should rule, as a matter of law, that Mrs. Davis' adverse employment action was made in retaliation for Mr. Davis' alleged whistleblowing conduct.

   On April 23, 2002, United filed a Response to Complainant's Cross Motion, denying Mrs. Davis' allegations. More specifically, United asserts that, at no time, did it act in bad faith and that it is still trying to determine who in the "Wellness Group" was responsible for Mrs. Davis' Level 1 discipline. United further argues that Thomas McCormick, one member of the "Wellness Group" who may have participated in authorizing Mrs. Davis' discipline, has retired from United and has been difficult to contact. United concluded that it had a legitimate reason for issuing Mrs. Davis' Level 1 discipline, and therefore, Mrs. Davis' Cross Motion for Summary Decision is improper.

   Despite her allegations of bad faith, Mrs. Davis has failed to present any evidence establishing that United intentionally concealed the identity of the decisionmaker who authorized her Level 1 discipline. Mrs. Davis has relied only upon her own speculation and suspicion. Accordingly, I find that Mrs. Davis has failed to properly support her Cross Motion for Summary Decision.

   In addition, I find that Complainant's Cross Motion for Summary Decision was untimely. Pursuant to 29 C.F.R. § 18.40, Motions for Summary Decision must be filed at least twenty (20) days before the hearing. In the present case, Mrs. Davis filed her Cross Motion for Summary Decision on April 20, 2002. The hearing is scheduled to begin on April 30, 2002 (with Pre-Trial Motions to be heard on April 29, 2002).

   It is hereby ORDERED that Complainant, Diane Davis' Cross Motion for Summary Decision is DENIED.

       RICHARD A. MORGAN
       Administrative Law Judge

RAM:ALS:dmr