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.

 By now you should have received a statement from the company regarding your DC Plan contributions.  I had initiated some discussions concerning some methods for calculating what your DC Plan contributions should have been.  I was concerned that I'd been significantly underpaid, and I had been.  However, the underpayment turned out to be an individual issue and not a global one.  The methodology that I outlined earlier was accurate.  It turns out that the company excluded the 5% deferred income in their DC Plan contributions.  The good news is that, for those of us who retired before all the deferred income was returned, the small deferred income checks, received after retirement, were included in the DC Plan balance.  In my case, I don't believe that this was done exactly, with one payment of approximately $300 overlooked.  My $4,500 DC Plan correction was posted to my Fidelity account as of the end of March.

 As of April 3, 2004, we have 111 participating Outliers.  I am not aware of anyone else who's interested in joining the suit at this time, so I believe that that will be the final count.  Things are going to start getting busy very soon.  We are looking for volunteers to help in the process of sorting through the documents that we will be receiving from the Company and ALPA.  No prior experience required, only a sharp eye and a willingness to work.

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