The Latest News
July 29, 2005. USAirways has objected to the claims filed by the Outliers in Bankruptcy Court. In order to preserve the Outliers’ option to continue to pursue the claims, today Michael Haber filed a Response to Bankruptcy Claim Objections.
June
1, 2005. Michael Haber filed the Outlier’s
Third Amended Complaint with the United States District Court for the
Eastern District of New York. In this
complaint, charges of Duty of Fair Representation and Age Discrimination
against ALPA were dropped. The one
remaining charge was Age Discrimination against USAirways. Of the 110 Outliers, 89 elected to remain
with the Outliers in the proceedings against USAirways.
February
4, 2005. Michael Haber filed a Proof of Claim in
the US Bankruptcy Court for the Outliers.
The amount listed is the difference between your target benefit and the
lump sum equivalent of the amount you were expected to receive at retirement
from all sources, including the PBGC and the DC Plan. For purposes of this calculation, the higher FAE, reflecting
first-half 2002 wages, was used. Nine
Outliers, who also belong to the Vaughn Group, were not included in the Outlier
filing, since only one claim could be filed and because the Vaughn Group filing
was for a higher amount.
January 29, 2005. Some new documents have been added to the Outliers website. ‘1114 Agreement’, detailing the provisions of the agreement preserving some retiree medical benefits, has been added under ‘Miscellaneous:’. Bankruptcy Claim Calculation Instructions, also under ‘Miscellaneous:’, gives instructions for calculating your theoretical ‘Shortfall’ under the DC Plan, in the event you wish to file a claim in Bankruptcy Court. The ‘Outliers.xls’ spreadsheet, available as Outlier List, again under ‘Miscellaneous:’, is used in the calculation. Claims must be received by the Court by February 3, 2005, so time is short!
November
13, 2004. Michael Haber filed an amended
complaint with the United States District Court for
the Eastern District of New York. In
addition to the original three counts, alleging violations of Duty of Fair
Representation against ALPA, Michael has added charges of Age Discrimination
against ALPA and USAirways. These
charges were filed within the 90-day window after release by the EEOC.
August 16, 2004. Michael Haber has written an update discussing the Outliers being released to sue by the EEOC, the planned consolidation of our two lawsuits (DFR and Age Discrimination) and the timetable for the discovery process. It is available at http://outliers.mcguirk.net/Haber Update 040816.doc.
July 17, 2004. Michael Haber has written an informative update as of this date. It is available at http://outliers.mcguirk.net/Haber Update 040717.doc.
June 12, 2004.
1. Michael Haber has modified our DFR complaint and is preparing to file with the United States District Court for the Eastern District of New York. 46 new names have been added to the complaint, and one has been deleted from the original list of 66. Doing the math, we will be going forward as a group of 111. The other major change in the complaint was the deletion of the individual names of the US Airways MEC, per an agreement with ALPA. Michael was convinced that the names would have been removed had ALPA been forced to appeal. We would have burned-up a considerable amount of lawyer time responding to the ALPA initiative. Furthermore, the process of amending the complaint would have been far more cumbersome and costly. The finalized new complaint will be posted on the Outliers web site at http://outliers.mcguirk.net/ when it becomes available.
2. Discussions continue with the EEOC. This past week Michael Haber and the
Outliers Pilot Committee have been putting together a list of questions for the
EEOC to ask individual members of the MEC.
The EEOC will have to find some hint or evidence of an attitude of
discrimination against the older pilots for them to continue to act on our
behalf. Stay tuned.
3. The DC plan is under attack. The Company has proposed a 7% DC plan, plus a 401(k) plan with a
50% match on the first 6% of pilot contribution; total Company contribution 10%
of salary. This would obviously be a
huge blow to those pilots who are still at work, and would not be helpful to
our case.
May 13, 2004. The Outlier’s representatives met with the EEOC at their offices in lower Manhattan at approximately 12:45. In attendance for the outliers were: Michael Haber, Steve Popper, Jim Maultsby, Andrew Hudson, and Peter McGuirk. In attendance for the EEOC were: Lisa Sirkin, Supervisory Trial Attorney, Michael O'Brien, Trial Attorney, Rosemary Wilkes, Enforcement Supervisor, Nancy Boyd, Enforcement Manager, Pedro Hernandez, Investigator, and Marcia Haymer, Investigative Assistant.
The meeting
completed the transition from the somewhat testy exchanges between Michael
Haber and Rosemary Wilkes (see the Michael Haber letter to Rosemary Wilkes) to
a much more friendly working relationship.
The favorable change in the demeanor of the EEOC representatives from
the beginning of the meeting to the end was very evident. It would be a great benefit to the Outliers
if the EEOC would find sufficient cause to take up our case. Not only would the expense be significantly
less, but also the clout possessed by the EEOC would bring us a great deal of
leverage in our endeavors. There are
significant obstacles to making this happen, but we are one step closer in the
process.
The Outliers
presented a chronology of the events leading to the termination of the DB Plan
and the inception of the DC Plan. The
changes to the DC Plan during negotiations, mentioned by both USAirways and
ALPA in their responses to the EEOC, were covered in the presentation. The increase in the match percentage from
50% to 100%, while it did reduce a numbers of the Outlier population by
approximately 15%, and doubled the amount received by the remaining Outliers,
still did not get the Outliers to their target benefit. The increase in percentage was of little
value to those with only a few months under the DC Plan. The other improvement mentioned by US
Airways and ALPA, the look-back in the FAE calculation, did nothing for the
Outliers. In fact, the increase in the
value of the target benefit, caused by the look-back, simply had the effect of
making the Outliers miss their target by an even greater amount.
The EEOC was made
aware the fact that there were alternative versions of the DC Plan available
which would have satisfied the requirements of the PBGC, the ATSB, the
Bankruptcy Court, and the IRS that would have made the Outliers whole.
The EEOC could
clearly see the injury that was done to the Outliers. The fact that injury was done, and that the fact that those who
were injured were at the extreme end of the age spectrum does not necessarily
mean that the EEOC has sufficient grounds to proceed.
There are two legal
concepts at the heart of whether our injury is legally enforceable Age
Discrimination: disparate impact and disparate treatment. Disparate impact essentially means that a
seemingly reasonable provision has an unanticipated discriminatory impact. In general the impact must be felt across
the entire protected class of those whose age is 40 or greater. The Second Circuit of the EEOC does not
recognize disparate impact as enforceable.
The pitfall of disparate impact is that practically any negotiation or
contract could spawn multiple lawsuits by small subsets of the parties. There are some jurisdictions that do
currently regard disparate impact as enforceable, but the matter is before the
Supreme Court, and the decision of the Supreme Court will become the rule in
all Circuits. The overriding
expectation is that Supreme Court will rule that disparate impact is
unenforceable.
This leaves us with
disparate treatment. In order to prove
disparate treatment there must be some evidence of intention. This could be discriminatory behavior toward
the class, or it could involve behavior favoring a second sub-class resulting
in discriminatory behavior toward the first.
This is clearly more difficult to prove then disparate impact, which is
merely a statistical reality.
Michael Haber and the Outlier Pilot Committee are currently putting together a list of questions for EEOC to ask of US Airways and ALPA. The hope is that the questions will lead the EEOC in a direction that leads to the discovery of a sufficient level of discriminatory intent for the EEOC to pursue our case. This could take the form of a desire, on the part of ALPA, to direct the millions of dollars saved by the creation of the Outliers to another subclass of pilots or, in the case of the Company, to simply keep tens of millions in expenses off their income statement and out of future cash flows. If anyone in our group has any information that might lead to some concrete piece of evidence showing discriminatory intent, on the part of ALPA or US Airways, please contact one of the members of the Outliers Pilot Committee immediately. A caution: we are looking for very specific information on discriminatory behavior. Everyone knows we have been injured - what we need is something pointing to intent.
Michael Haber has prepared a *** mini-brief ***on some of the legal Age Discrimination issues on which our case turns. This brief is excellent, explaining the terms and laying out the ingredients necessary to win in an Age Discrimination case. The document should help clarify the kind of information we are hoping to uncover to help our case. Required reading.
The following is Jim Maultsby’s account of the meeting with the EEOC:
On Thurs May 13, three members of the outlier pilot committee along
with our attorney, Michael Haber and another outlier pilot representative met
with the EEOC in their NYC offices.
The EEOC team consisted of 2 lawyers, 2 enforcement managers and 2 investigators. The meeting lasted over three hours and was very productive.
Michael Haber, Pete McGuirk, Steve Popper, Andrew Hudson and I presented charts and informal testimony in support of our age discrimination claim while the EEOC group listened intently, followed by a lively Q&A session. In the end, the EEOC agreed to continue their fact-finding investigation into our claim.
While our lawsuit still has a long way to go, we were pleased with the
EEOC reception of our information and exchange of ideas.
May 6, 2004. ALPA
filed a response with the EEOC. The ALPA response
is markedly similar to the USAirways
response. Both rely on the notion of
the unenforceability of disparate impact and claim safe harbor because the
older pilots (the Outliers) received a greater (rate of) benefit from the DC
Plan (while it lasted) than the younger pilots.
April 15, 2004. The EEOC met with USAirways’ lawyers to
discuss Michael Haber's response. Prior
to the EEOC-USAirways meeting, Rosemary Wilkes of the EEOC had demanded that
Michael Haber produce documentation of the alternate Plan discussed in the
April 9 letter. The 24-hour time-frame
given to Michael to produce the document, when analyzed in the context of the
compressed period earlier given to respond to USAirways’ lawyers, began to
paint a picture of an EEOC more interested in dumping the case onto the court
system than trying to determine the merits.
Michael Haber responded to the EEOC demands in a firm but polite
way. The intent of Michael's
letter to the EEOC was to smoke out whether the EEOC had any interest in
pursuing the case. It turns out that
they may.
The EEOC has requested a meeting with Michael Haber and 4-6 pilots on May 13. The meeting will take place in lower Manhattan. At this point in time, at least two members of the Outliers Pilot Committee, Steve Popper and Pete McGuirk, will be in attendance. Accordingly, we have an opening for 3-4 Outliers who might want to attend. The plan would be to meet at Michael’s office, at 225 Broadway, 39th floor, at 10 AM on the 13th to prepare for the meeting. We plan to put together a presentation, possibly enhanced by some poster-size charts or other displays, in support of our case. There will be something of a script. The meeting will take place at the EEOC office, starting somewhere between noon and 1 PM. After the meeting we plan to return to Michael's office for debrief. This would be an excellent opportunity to get involved in the effort, to meet Michael Haber and the members of your Pilot Committee, and get a sense of the merits of our case. If you are interested in participating, please call Pete McGuirk at (703) 533-9620.
April 9, 2004. Michael Haber delivered the Outliers' Response to USAirways' Response to the individual EEOC charges.
April 3, 2004. Michael Haber and the Outlier Pilot Committee are the process of putting together a response to USAirways' Response to the individual EEOC complaints. ALPA did not file a response. Instead they are piggybacking on the Company response. This is all part of the process leading toward a resolution of the age discrimination claim. If we can make a sufficiently compelling case, the EEOC may decide to hold hearing or may even decide to take up the case. Alternatively, if it appears the EEOC is not planning to act decisively on the claim, we may ask to be released from the EEOC so we can file our lawsuit in Circuit Court. The company response was filed on January 23rd. The EEOC asked a number of penetrating questions of the Company, and a response to this was filed on February 24, 2003. We have until April 7th to respond. The EEOC correspondence is available at the following link, EEOC correspondence.
The letter, which definitively determined your Outlier status (100% DC Plan contribution), was mailed by the Company on June 12, 2003. The Statute of Limitations for filing individual EEOC complaints expires 300 days after that date. That date is April 7, 2004. Shortly after that date we'll add the remaining names of all Outliers that have joined the lawsuit to the Duty of Fair Representation suit filed last July. That action should set in motion the process of discovery. The discovery will likely last up to six months after which the hearing can begin.