Judge Dismissed Discrimination Suit Brought By 23 Black Pilots At United Continental

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Judge Dismissed Discrimination Suit Brought By 23 Black Pilots At United Continental

By Mike Mitchell

April 26, 2013 - California U.S. District Judge Maxine Chesney has dismissed a racial discrimination lawsuit filed by 23 Black pilots employed with United and Continental Airlines in Johnson v. United Continental, 12-2730, (19 Captains and 2 Operations Supervisors employed by United and 2 Captains employed by Continental).

The lawsuit filed on May 29, 2012, alleged that the carriers offered fewer management promotions to minorities pilots than their White counterparts. Captain Leon Miller said in a statement back in 2012 "the struggle for inclusion at United Airlines is a long-standing issue that many have tried to address over a long period of time".

At the time United Continental Holdings released a statement stating that the company does not tolerate harassment or discrimination. “We believe this lawsuit is without merit and will vigorously defend ourselves.”

The pilots alleged that that United Continental Holdings, Inc. (UCH) owners and operators of United Airlines and Continental Airlines violated (1) Title VII, (2) 42 U.S.C. § 1981, and (3) the California Fair Housing and Employment Act (“FEHA”), by failing to promote them on the account of their race. Black pilots are subject to a “dual employment track” and given part-time jobs with less job security and opportunity for promotions, while non-minority employees get full-time, higher wage positions.

Capt. Marlon Green was a Black pilot whose landmark U.S. Supreme Court (Marlon Green V Continental Airlines) decision in 1963 helped dismantle racial discrimination in the passenger airline industry, leading to David Harris’ hiring as the first Black pilot for a major airline the following year. Green was subsequently hired by Continental Airlines.

The pilots further alleged the company violated Title VII and FEHA by failing to promote eleven of the pilots, in retaliation to their engagement in protected activity, by subjecting one of the pilots to a hostile work environment on account of his race.

Many of the pilots involved in the suit had worked for United prior to the merger with Continental Airlines. The complaint specifically addresses promotion issues dating to 2009. In additionally most of these pilots was part of a 2010 federal equal employment racial discrimination case involving United, the pilots allege the carrier punished them by withholding promotions and special assignments. In their Second Amended Complaint (“SAC”) the pilots contend:

(1) First Claim, titled “Retaliation in Violation of [Title VII]

(2) Second Claim, titled “Retaliation in Violation of [FEHA]

(3) Third Claim, titled “Race Discrimination in Violation of Title VII

(4) Fourth Claim, titled “Violation of [FEHA],” in which plaintiffs allege race discrimination

(5) Fifth Claim, titled “Violation of 42 U.S.C. § 1981,” in which plaintiffs allege race discrimination

(6) Sixth Claim, titled “Harassment in Violation of [Title VII] and

(7) Seventh Claim, titled “Harassment in Violation of [FEHA]

Judge Chesney stated the pilots lacked adequate support to prove that the pilots were adversely affected when United Continental doesn’t post some positions and were precluded from applying to certain positions. Judge Chesney ruled that United Continental Holdings motion to dismiss is granted in part and denied in part, as follows:

- The First Claim is dismissed in its entirety, with leave to amend.

- The Second Claim is dismissed in its entirety. Such dismissal is with leave to amend except to the extent the claim is brought on behalf of Johnson and against UCH.

- The Third Claim is dismissed, with the exception of Montgomery’s disparate treatment claim based on his failure to receive a promotion to Hub Operations Area Manager at Dulles, Virginia, in September 2011. Such dismissal is with leave to amend, except to the extent the claim is based on a theory of disparate impact and is brought on behalf of Crocker, Gadson, John, Johnson, Jones, Montgomery, Noble, and Roane.

- The Fourth Claim is dismissed in its entirety. Such dismissal is with leave to amend except to the extent the claim is based on Montgomery’s failure to receive a promotion to Hub Operations Area Manager at Dulles, Virginia, in September 2011, based on a theory of disparate impact and is brought on behalf of Crocker, Gadson, Haynie, John, Jones, Montgomery, Noble, Roane, and Tom, brought on behalf of Johnson, and brought against UCH.

- The Fifth Claim is dismissed, with the exception of Montgomery’s disparate treatment claim based on the failure to be promoted to Hub Operations Area Manager at Dulles, Virginia, in September 2011. Such dismissal is with leave to amend.

- The Sixth Claim is dismissed to the extent it is alleged against UCH, with leave to amend.

- The Seventh Claim is dismissed in its entirety. Such dismissal is with leave to amend except to the extent the claim is brought against UCH. UCH s’ motion to strike is denied. Any Third Amended Complaint shall be filed no later than May 20, 2013. In any Third Amended Complaint, the pilots may amend to cure the deficiencies noted in any or all of the claims identified above that have been dismissed with leave to amend. The pilots may not, add new claims, new plaintiffs, or new defendants without leave of court. It is so ordered April 24, 2013.