Ronald L. Caraway v. Secretary, U.S. Department of Transportation

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12558
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-00411-JOF
RONALD L. CARAWAY,
WILLIAM T. CLIATT,
JOHN W. DENNIS,
PAUL A. DIFFENDERFER,
JERRY DREADON,
DARRELL L. DUDLEY,
JOEL L. FORREST,
HAROLD R. GAUSMAN,
STEPHEN C. HARLESS,
BILLY JOYCE,
STEVEN W. KIMSEY,
STEVEN M. MCCOLLUM,
TILTON C. MEUNINCK,
FRANCES A. MULKEY,
ALAN B. NESBITT,
THOMAS W. ROBERTS,
BRADLEY G. ROBINSON,
DAVID E. STENNER,
KENNETH STEPP,
JOHN R. STIERS,
JEFFREY F. VAN HUSS,
CHESTER VILE,
DENNIS ZONDERVAN,
Plaintiffs-Appellants,
versus
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SECRETARY, U.S. DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(December 16, 2013)
Before HULL, WILSON and FAY, Circuit Judges.
PER CURIAM:
The plaintiffs-appellants, retired air traffic control specialists, appeal the district
court’s dismissal of their amended complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim for relief. The plaintiffs were
previously employed by the Federal Aviation Administration (“FAA”) and brought
claims under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C.
§ 623(a), against defendant-appellee the United States Secretary of Transportation in
his official capacity (the “Secretary”). The plaintiffs also appeal the district court’s
denial of their motion to reconsider its Rule 12(b)(6) dismissal. After careful review,
we affirm as to all issues.
I. FACTS AND PROCEDURAL HISTORY
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We first recount the facts as alleged in the plaintiffs’ amended complaint. 1
During the period from October 2002 until October 2004, each plaintiff worked as an
“air traffic control specialist” at the Atlanta Control Tower/Tracon facility (the
“Atlanta Control Tower”) at the Hartsfield-Jackson International Airport in Atlanta,
Georgia. Twenty-two of the plaintiffs were “supervisory air traffic control
specialists” and one plaintiff was a “non-supervisory air traffic control specialist”
during the relevant period.
In October 2002, due to an increase in air traffic into and out of Hartsfield-
Jackson, the Atlanta Control Tower qualified for an upgrade in its facility status from
the FAA. This upgrade would have resulted in pay increases for both supervisory and
non-supervisory air traffic control specialists. For reasons unstated in the amended
complaint, the FAA decided not to upgrade the facility at that time. Instead, in 2004,
the FAA reorganized the Atlanta Control Tower’s operations by dividing it into two
separate facilities, resulting in reduced reported traffic counts for each facility.
Alleging that the FAA’s failure to upgrade the Atlanta Control Tower (and
resulting failure to give pay increases to employees) violated a collectively bargained
agreement, the National Air Traffic Controllers Association, the union representing
the non-supervisory air traffic control specialists, filed a grievance against the FAA on
March 9, 2004. In January 2011, the FAA settled with the union. The FAA agreed to
1
We also draw our account of the facts from a document attached to the Secretary’s motion to
dismiss, because, as the district court determined, the document was central to the claims at issue and
its authenticity was not disputed.
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provide backpay to all non-supervisory air traffic control specialists (the members of
the union which had filed the grievance) for the period from 2002 (when the Atlanta
Control Tower became eligible for an upgrade) until 2004 (when the FAA divided the
Tower into separate facilities, making it no longer eligible for the upgrade). The
settlement did not provide for backpay for supervisory air traffic control specialists
who had worked at the Atlanta Control Tower during this period, but who were not
union members. The FAA modified its backpay decision in March 2011. At that
time, it agreed to also give backpay to all air traffic control specialists who had
worked at the Atlanta Control Tower during the relevant period, regardless of whether
the employee was or was not a supervisor, and regardless of whether the employee
presently worked for the FAA.
According to the amended complaint, the FAA then changed positions again,
and, in April 2011, decided to exclude from the backpay award one category of
employee: supervisory air traffic control specialists who worked at the Atlanta
Control Tower during the relevant period of 2002 to 2004 but who did not presently in
2011 work for the FAA because they had already retired. The plaintiffs here were
excluded from the backpay award, as all but one of the plaintiffs had been a
supervisory air traffic control specialist during the relevant period, and all were not
currently working for the FAA as they had retired before the 2011 decision. 2 In total,
2
According to the amended complaint, the FAA decided to exclude from the backpay award
only supervisory air traffic control specialists. Nevertheless, the amended complaint also alleged that
plaintiff Steven W. Kimsey was a non-supervisory air traffic control specialist who still did not
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the FAA paid backpay to approximately 191 of the 214 air traffic control specialists
who worked at the Atlanta Control Tower between 2002 and 2004 and the plaintiffs
here were the only ones excluded from the award.
Believing that the decision to exclude them from the backpay award resulted
from age discrimination, on October 19, 2011, the plaintiffs filed with the EEOC a
Notice of Intent to Sue under 29 C.F.R. § 1614.201(a).3 Thereafter, on February 8,
2012, the plaintiffs filed their original complaint. After the Secretary filed a motion to
dismiss, the district court granted the plaintiffs leave to file an amended complaint.
In the plaintiffs’ amended complaint, they asserted 23 individual ADEA claims
of age discrimination based on disparate treatment. The plaintiffs’ amended
complaint alleged that the plaintiffs were “identical in all respects to the employees
paid [backpay], i.e., they worked at the ATC facility during 2002-2004.”
The plaintiffs appeared to make two unsuccessful attempts to allege valid,
similarly situated comparators who received backpay. The amended complaint first
gave the names and ages of six supervisory air traffic control specialists “who
received the back pay payment [and] who were substantially younger than the
Plaintiffs.” However, the amended complaint also alleged that the only supervisors
receive backpay. We accept the facts alleged in the amended complaint as true, but note this
discrepancy.
3
This provision provides that “an aggrieved individual may file a civil action in a United
States district court under the ADEA against the head of an alleged discriminating agency after
giving the [Equal Opportunity Employment] Commission not less than 30 days’ notice of the intent
to file such an action.” 29 C.F.R. § 1614.201(a).
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who did not get backpay in 2011 were those who had retired by then. Thus, the
amended complaint itself showed that these six alleged comparators were still
working for the FAA in 2011 (which means the six were not similar to the plaintiffs
who were no longer working for the FAA by that time).
The amended complaint also alleged that the FAA “paid [backpay to]
employees who no longer worked at the facility” and “paid employees who have
retired and or resigned.” However, the amended complaint’s other allegations showed
that the retired or otherwise separated employees who received backpay were non-
supervisory air traffic control specialists. Unlike the plaintiffs, a union collectively
bargained on behalf of these retired, non-supervisory employees.
As relief, the plaintiffs requested, inter alia, “[p]ayment for compensation equal
to the back pay wages paid to their co-workers for service during the years 2002-
2004.”
The Secretary filed a motion to dismiss, arguing that the amended complaint
failed to state a claim upon which relief could be granted because the ADEA claims
failed to identify similarly situated comparators who were not subjected to
discrimination. The district court agreed with the Secretary and dismissed the
amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim.
The district court pointed out that “[a]ll that is alleged in Plaintiffs’ Amended
Complaint is their bald contention that when the Federal Aviation Administration
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decided in April 2011 that it would not pay supervisory air traffic controllers back pay
if they had retired from service before 2011, this change was a product of age
discrimination” and that there was “no factual support at all . . . to support this
conclusory allegation.” The facts in the amended complaint did not give rise to “any
plausible inference of age discrimination,” according to the district court, because
there are a myriad of reasons why an employer would determine that only those
supervisors currently in service would be eligible for backpay payments.
Thereafter, the plaintiffs filed a motion for reconsideration, asking the district
court to reconsider its dismissal in light of newly acquired evidence obtained from the
FAA through a Freedom of Information Act (“FOIA”) request. The plaintiffs argued
that this new evidence showed that the retired, non-supervisory air traffic control
specialists who received backpay were similarly situated comparators and could be
used to establish the plaintiffs’ disparate treatment ADEA claims.
The new evidence included, inter alia: (1) a copy of the 2011 settlement
agreement between the FAA and the union, showing that the union members (non-
supervisory air traffic control specialists) received backpay regardless of whether they
had retired from the FAA by 2011; (2) a copy of a 2011 letter from a senior FAA
official stating that the FAA would pay backpay to “current management employees
who were active at Atlanta Tower/TRACON at the time the grievance was filed”
because the FAA “strives to provide managers at facilities the same treatment as
bargaining unit employees”; (3) a list of all supervisory air traffic control specialists
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who received backpay awards and the amounts of those awards; and a declaration
from one of the plaintiffs, Billy Joyce, providing, based on his own personal
knowledge, a list of retired non-supervisory air traffic control specialists who received
backpay awards under the 2011 settlement.
The plaintiffs argued that this evidence showed: (1) that non-supervisory
employees who no longer worked at the FAA in 2011 had been paid backpay; (2) that
the FAA had an internal policy of treating similarly non-supervisory and supervisory
employees; (3) the FAA had “departed from its policy” by paying backpay to only the
supervisory employees who were current employees in 2011, while paying backpay to
all non-supervisory employees who worked for the FAA between 2002 and 2004,
regardless of the non-supervisory employee’s status in 2011; and (4) the fact that the
FAA had departed from its own policy when it had denied the plaintiffs backpay
suggested discrimination. Further, the plaintiffs argued that, in light of the FAA’s
policy of treating alike supervisory and non-supervisory employees, the non-
supervisory employees who received backpay despite not working for the FAA in
2011 were valid comparators, similarly situated to the plaintiffs.
The district court denied the plaintiffs’ motion for reconsideration, stating that
“[n]one of the[] documents . . . has anything to do with discrimination on the basis of
age and therefore do not warrant a reconsideration of the court’s prior order.”
The plaintiffs appealed the district court’s order granting the motion to dismiss,
and the order denying the motion for reconsideration.
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II. DISCUSSION
A. Principles of Age Discrimination Under the ADEA
We first address the district court’s determination that the plaintiffs did not
state ADEA claims upon which relief could be granted. 4 The ADEA makes it
unlawful for an employer to discriminate against employees over age 40 on the basis
of age. 29 U.S.C. §§ 623(a), 631; see Turlington v. Atlanta Gas Light Co., 135 F.3d
1428, 1432 (11th Cir. 1998). “A plaintiff can establish age discrimination through
either direct or circumstantial evidence.” Sims v. MVM, Inc., 704 F.3d 1327, 1332
(11th Cir. 2013). Where, as here, a plaintiff sought to prove age discrimination
through only circumstantial evidence, this Court employs the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817 (1973). See Chapman v. A1 Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en
banc).
Under this framework, a plaintiff has the initial burden of establishing a prima
facie case of age discrimination by showing that: (1) he was within the statute’s
protected class; (2) he was qualified for his position; (3) he was subjected to adverse
employment action; and (4) he suffered from disparate treatment because of
membership in the protected class. Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th
Cir. 2002). Once the plaintiff establishes a prima facie case, the burden shifts to the
4
We review de novo a district court’s dismissal under Rule 12(b)(6), accepting as true the
allegations in the complaint and construing them in the light most favorable to the non-moving party.
Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).
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employer to articulate a legitimate, nondiscriminatory reason for its action, and, if the
employer succeeds, the burden returns to the plaintiff to demonstrate that the
employer’s reasons are pretextual. Sims, 704 F.3d at 1332.
To establish the disparate treatment element of the prima facie case, a plaintiff
may point to a similarly situated comparator who was not discriminated against.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). To establish
disparate treatment in this way, “[t]he comparator must be nearly identical to the
plaintiff to prevent courts from second-guessing a reasonable decision by the
employer.” Id.
B. The Rule 12(b)(6) Dismissal
The allegations in the plaintiffs’ amended complaint did not establish a prima
facie case of age discrimination. The amended complaint asserted, as to each plaintiff
that “similarly situated, substantially younger co-workers were treated more
favorably.” Specifically, it appeared to divide those co-workers into two categories as
comparators: (1) supervisory employees who were still employed by the FAA in 2011
and who received backpay; and (2) non-supervisory employees who had retired or
separated for other reasons and thus were no longer employed by the FAA in 2011
and who received backpay.
Neither type of employee was actually similarly situated to the plaintiffs,
however. As for the first category, the fact that those supervisory employees worked
for the FAA at the time of the award, whereas the plaintiffs did not was the crucial
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difference. We have previously held that “[i]n a comparator analysis, the plaintiff is
matched with a person or persons who have very similar job-related characteristics
and who in a similar situation to determine if the plaintiff has been treated differently
than others who are similar to him.” MacPherson v. Univ. of Montevallo, 922 F.2d
766, 774 n.16 (11th Cir. 1991). Even assuming that the supervisory employees who
received backpay had “very similar job-related characteristics” as the plaintiffs
between 2002 and 2004, they were not “in a similar situation” as the plaintiffs when
the alleged discriminatory action occurred. See id. Specifically, these other
supervisory employees still worked for the FAA, while the plaintiffs did not. Thus,
they could not serve as comparators to establish the plaintiffs’ ADA disparate
treatment claims.
As for the second category, the difference was that the retired employees who
received backpay were non-supervisory employees represented by a union, whereas
the plaintiffs were supervisory, non-unionized, retired employees. First, the amended
complaint does not allege that the “job-related characteristics” of the non-supervisory
employees were “very similar” to those of the supervisory employees. See id.
Second, the non-supervisory employees were not in a “similar situation” as the
supervisory employees because they were represented by a union, whereas the
supervisory employees were not. See id. Third, the settlement agreement between
the FAA and the union showed that it was the union which was responsible for
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determining which employees would receive backpay, not the FAA. 5 As we have
held, “differences in treatment by different . . . decision makers can seldom be the
basis for a viable claim of discrimination.” Silvera v. Orange Cnty. Sch. Bd., 244
F.3d 1253, 1261 n.5 (11th Cir. 2001). Because it was the union that decided to give
backpay to the non-supervisory employees no longer working for the FAA in 2011,
and the FAA that decided to withhold backpay from the supervisory employees who
had left the FAA by that time, the differences in treatment of the two groups did not
support a claim of discrimination.
Given that the amended complaint did not specifically allege the existence of a
valid comparator or otherwise allege facts giving rise to an inference of disparate
treatment, the plaintiffs failed to allege a valid ADEA claim. See Davis v. Coca-Cola
Bottling Co., 516 F.3d 955, 974 (11th Cir. 2008) (rejecting plaintiffs’ Title VII claims
of race discrimination where the complaint alleged only that “plaintiffs were . . .
treated differently than similarly situated white employees solely because of race”
(internal quotation marks and alterations omitted)). Accordingly, the district court did
not err in granting the Secretary’s motion to dismiss.
C. The Denial of the Motion for Reconsideration
Next, we turn to the plaintiffs’ appeal of the district court’s denial of their
motion for reconsideration. Because the plaintiffs filed the motion for reconsideration
5
We note that the copy of the settlement agreement was not in the record at the time the
district court ruled on the motion to dismiss. However, we consider the document here, as it was
both central to the complaint and its authenticity was never disputed. Cf. Harris v. Ivax Corp., 182
F.3d 799, 802 n.2 (11th Cir. 1999).
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within 28 days of the district court’s dismissal order, and because the plaintiffs’
motion calls into question the correctness of that order, we construe the plaintiffs’
motion as being filed under Rule 59(e). See Finch v. City of Vernon, 845 F.2d 256,
258 (11th Cir. 1988) (explaining that if a post-judgment motion is filed within the
period provided for in Rule 59(e) “and calls into question the correctness of that
judgment it should be treated as a motion under Rule 59(e)” (internal quotation marks
omitted)); see also Fed. R. Civ. P. 59(e).6
There are only two grounds for granting a Rule 59(e) motion for
reconsideration: (1) “newly-discovered evidence”; or (2) correcting “manifest errors
of law or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (internal
quotation marks omitted). A district court should only grant a motion for
reconsideration on the basis of newly discovered evidence when the evidence is “such
that a new trial or reconsideration of the final judgment or order would probably
produce a new result.” In re Consorcio Ecuatoriano de Telecomunicaciones S.A. v.
JAS Forwarding (USA), Inc., 685 F.3d 987, 1001 (11th Cir. 2012) (internal quotation
marks and alterations omitted).
The district court concluded that consideration of the plaintiffs’ new evidence
would not have led to a different result. We cannot say that the district court abused
its discretion when it did so. Nothing in the materials attached to the Rule 59(e)
6
We review for abuse of discretion a district court’s denial of a Rule 59(e) motion for
reconsideration. See Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 (11th Cir. 2001). At
the time of Finch, Rule 59(e) required filing within 10 days. The rule has since been amended to
allow for motions filed within 28 days.
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motion identified similarly situated comparators who received backpay or otherwise
would have aided the plaintiffs in establishing their prima facie case of discrimination.
In light of the foregoing, we find no error in the district court’s dismissal of the
plaintiffs’ amended complaint for failure to state a claim, or in its denial of the
plaintiffs’ motion for reconsideration. Thus, we affirm.
AFFIRMED.
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