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Nicholas v. Delta Airlines, Inc.

United States District Court, E.D. Michigan, Southern Division

April 24, 2018




         Plaintiff Jeffrey Nicholas, a Delta Airlines baggage handler at the Detroit Metropolitan Airport, was already skating on thin ice when he was caught driving a tug and not wearing a seatbelt. Delta itself had been cited for safety violations by OSHA, and was strictly enforcing its safety work rules. At the time of the seatbelt violation Nicholas was laboring under “FCAN status, ” which meant that he had been issued a Final Corrective Action Notice, the last step before termination in Delta's progressive disciplinary scheme. The seatbelt violation resulted in his termination in January 2014. However, Nicholas maintains in this lawsuit that his discipline-based termination was in fact a pretext for age discrimination in violation of Michigan's Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2101 et seq. But Delta argues in a motion for summary judgment that the undisputed facts show that the termination was lawful. After hearing the parties arguments in open court on February 6, 2018, the Court is constrained to agree. Therefore, the motion will be granted and the case will be dismissed.


         Nicholas began working for Northwest Airlines in June of 2006 at the age of 42. He started at the Detroit Metropolitan Wayne County Airport (DTW) as a “Customer Service Agent” (CSA), loading and unloading aircraft and moving baggage around the airport facility on “baggage tugs, ” small trucks that pull baggage trailers. Delta refers to personnel in these roles as “below the wing” or “ramp” employees. While employed with Northwest, Nicholas was promoted to a leadership position and worked as an “Aircraft Load Assistant” (ALA). As an ALA, Nicholas was responsible for “parking” planes as they approached their gates, weighing and logging bags into Northwest's computer system, and overseeing a small crew of other CSAs. For at least one month during his tenure as an ALA, Nicholas was recognized as being in the top five percent of ALAs for on-time performance.

         Northwest merged with Delta Airlines, a process that took place over several years, and was finalized in January of 2010. Nicholas became a Delta employee and retained his ALA leadership position, performing the same duties he had at Northwest.

         Delta employees are subject to a progressive discipline policy. At the first stage, employees violating work rules are issued a verbal “coaching.” Subsequent offenses will proceed through two levels of formal written coaching (also referred to as level one and level two warnings), which may involve loss of privileges or other remedial action. After that, an employee who commits another violation is issued a Final Corrective Action Notice (FCAN). But depending on the nature and severity of an infraction, Delta might begin the process at any stage. Once an employee is placed on FCAN status, that designation remains active on that employee's disciplinary file for three years. Any subsequent offenses during that three-year period can result in immediate termination, although managers may exercise discretion depending on the individual case. According to Barbara Franz, General Manager of Human Resources at Delta, termination is typically recommended for subsequent infractions by employees on FCAN status “if coaching has not resulted in sustained improvement in performance.”

         According to Franz, Northwest's employee discipline policy during Nicholas' tenure closely resembled Delta's policy. Although they used different terminology, both systems “began with a formal verbal coaching, followed by two levels of written warnings, and a final warning prior to termination.” In his deposition, Nicholas expressed confusion as to whether former Northwest employees were subject to the old Northwest disciplinary system or to Delta's following the merger. Nicholas believed he was subject to the Northwest disciplinary system through his termination. Based on that belief, Nicholas alleges that he was entitled to the “two or three coachings” between each disciplinary level (level one, level two, and FCAN) prescribed by the Northwest system. According to Franz, former Northwest employees were subject to the Northwest disciplinary system after the merger until approximately March 2012 when Delta employees voted against union representation. After that vote, all employees were subject to the Delta system. Because these systems were similar, former Northwest employees saw their disciplinary history transition to the Delta system, rather than being given a clean slate.

         That traveling history is significant for Nicholas. While working for Northwest, he was disciplined several times. He was disciplined in April 2007 for a safety violation, but that level-one warning was reduced to a verbal coaching after an appeal by Nicholas's union. In September 2007, August 2008, and November 2008, Nicholas was disciplined for attendance issues. For his August 2008 infraction, Nicholas was issued a level-one warning. After his November 2008 attendance reprimand, that was escalated to a level-two warning. In July 2009, Nicholas was disciplined for failure to follow loading procedure thereby causing a 27-minute delay, and was issued another level-one warning.

         Nicholas' disciplinary issues continued after Delta's merger with Northwest. In January 2010, December 2010, and August 2011, Nicholas was disciplined for poor attendance. For his 2010 citations, Nicholas was issued a level-one warning. For his 2011 attendance citation, Nicholas was issued a level-two warning and was required to submit medical documentation for any future sick leave.

         In October 2011, Nicholas was disciplined for being uncooperative with a supervisor during a verbal coaching. At that time, Nicholas was on level-one status for performance and level two-status for attendance.

         Nicholas was disciplined again in January 2012, this time for damaging an aircraft antenna while operating a baggage vehicle, forcing Delta to substitute the damaged aircraft and causing a delay. Although Delta could have issued Nicholas an FCAN notice, as he was at the time on level-two status due to his attendance issues, Nicholas instead was issued an additional level-two warning - this one for performance.

         Citing a failure to improve despite numerous disciplinary actions, Delta stripped Nicholas of his ALA position and returned him to a non-lead CSA position in April 2012. In June of 2012, Nicholas was placed on FCAN status for violating attendance policies, having been absent for more than a month without notice, and was further required to provide medical documentation of any injury or illness resulting in missed work for the next six months. This FCAN status was due to expire from Nicholas' disciplinary file in June of 2015.

         Despite having been placed on FCAN status, Nicholas accrued a number of additional disciplinary violations, provoking five instances of verbal coaching. In August 2012, Nicholas was issued a verbal coaching for failing to comply with Delta's uniform policy. In January 2013, Nicholas received a verbal coaching for poor attendance, and for failure to present sufficient medical documentation of his absences.

         In March 2013, Nicholas received a verbal coaching for failure to wear a seatbelt while driving a luggage tug. Nicholas stated that he does not remember this incident, but “is not saying it didn't happen.” In May 2013, Nicholas was issued a verbal coaching after he improperly routed bags to the terminal from a flight that had landed after a delay, rather than sending them directly to the appropriate departing flight, forcing the departing flight to return to the gate and collect the missing bags. Finally, Nicholas was issued a verbal coaching in November 2013 for continued attendance issues.

         Meanwhile, in April of 2012, Delta signed a settlement agreement with the United States Department of Labor's Occupational Safety and Health Administration (OSHA) after a Delta employee not wearing a seatbelt was ejected from a baggage tug and killed. Delta agreed that it would install seatbelts on all ground service equipment currently lacking them and to train its employees in the proper use of seat belts within the first year of the settlement. In the second year after the settlement, Delta agreed to “fully enforce seat belt use among its employees, ” and to hire safety consultants to monitor the implementation of the settlement terms.

         Between October and November of 2013, Rogermike Rowe, the Delta Department Manger responsible for overseeing baggage operations at DTW, required Nicholas and all other “below wing” CSAs to review and sign a document titled “7 Safety Absolutes.” This document was intended to remind employees of Delta's most essential safety rules. The first “safety absolute” highlighted the seatbelt requirement for all employees operating ground service equipment, including baggage tugs. On November 3, 2013, Nicholas signed this document to confirm his receipt and understanding of these rules.

         All of this set the stage for the incident on December 6, 2013 that led to Nicholas's firing. On that day, Safety Performance Leader Jeff Lane saw Nicholas driving a baggage tug without wearing a seatbelt. Lane had been specially reassigned from his regular managerial duties to focus on safety compliance - particularly enforcement of the more stringent seatbelt requirements Delta instituted as part of their OSHA settlement. As Lane was driving along the airport's “zipper road” (the road that runs parallel to the terminal and directly behind the tails of airplanes parked at their gates), he noticed that someone had neglected to place a necessary traffic cone under the tail of an aircraft, which warns employees where not to drive due to the aircraft's low clearance. Lane parked his vehicle at the tail of the aircraft to investigate the situation. While Lane was parked, he observed Nicholas driving a baggage tug along the zipper road with the canvas door open and “clearly” not wearing a seat belt.

         After following Nicholas to the baggage drop-off area, Lane assisted Nicholas in unloading the bags before discussing Nicholas' seatbelt use. According to Lane, Nicholas admitted that he had not been wearing a seatbelt and asked Lane not to report the infraction due to Nicholas' outstanding disciplinary issues (his FCAN status). Lane responded that he would “be objective and write the infraction in every case when it is clear, ” and that in this case, “the employee was clearly not wearing his seat belt.” After their discussion, Lane inspected the vehicle and confirmed that it was equipped with a seat belt. In his deposition, Lane testified that he could see Nicholas' seatbelt unbuckled and dangling through the unzipped canvas door panel, although that detail does not appear in the memo he wrote at the time of the incident.

         Lane testified that he had no knowledge of Nicholas' age at the time of this incident. Nicholas stated that he had never heard Lane make any derogatory comments about Nicholas's age (although Nicholas believed Lane did not like “his personality”).

         One week after the incident, Nicholas was required to submit his own account. In his handwritten statement, Nicholas wrote that, since he was already unloading bags from the tug when Lane arrived and raised the issue of his seat belt, he “couldn't recall if [he] had used his belt or not” while driving from the gate to the baggage drop-off area.

         On December 11, 2013, Nicholas's supervisor, Stacy Parris, recommended that Nicholas be terminated, as Nicholas was on FCAN status at the time of this incident, had previously been reprimanded for failure to use a seatbelt, and had a significant disciplinary history outside of those issues. In his deposition, department manager Rogermike Rowe testified that Nicholas's termination was based on his cumulative record, and unlike ...

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