Dan Nachtsheim v. Continental Airlines

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-2775
DAN NACHTSHEIM,
Appellant
v.
CONTINENTAL AIRLINES; INTERNATIONAL ASSOCIATION
OF MACHINISTS AND AEROSPACE WORKERS
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY
(Dist. Court No. 01-cv-04482)
District Court Judge: Honorable Faith S. Hochberg
Submitted Under Third Circuit LAR 34.1(a)
September 15, 2004
Before: ALITO, AMBRO, and FISHER, Circuit Judges
(Opinion Filed: September 30, 2004 )
OPINION OF THE COURT

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PER CURIAM:
Because we write for the parties only, we do not set out the facts of this case. We
conclude that the District Court lacked subject matter jurisdiction to consider
Nachtsheim’s contract claim under the Railway Labor Act, and we vacate that part of its
order granting Continental Airlines, Inc. (Continental) summary judgment. In all other
respects, we affirm.
I.
A.
Nachtsheim concedes that a six-month statute of limitations applies to his claim
against the International Association of Machinists and Aerospace Workers (the Union)
for breach of its duty of fair representation. Br. of Appellant at 17. Such a claim accrues
“when the plaintiff receives notice that the union will proceed no further with the
grievance.” Vadino v. A Valey Eng’rs, 903 F.2d 253, 260 (3d Cir. 1990) (internal
quotation marks omitted). Nachtsheim plainly received such notice in the Union’s letter
of November 24, 2000, which stated that “no future appeal will be made” and that “this
matter will be removed from the System Board of Adjustment and considered closed in
the District files.” Nachtsheim has not argued that his receipt of the letter was delayed,
and even assuming it arrived as late as December 15 of that year, he would have been
obligated to bring suit no later than June 15, 2001. His original complaint was thus
untimely when filed on September 21, 2001, and the Union was entitled to summary

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1While the District Court correctly determined that Nachtsheim’s claim accrued
when he received the November 24 letter, neither Nachtsheim’s complaint nor the
Union’s answer averred this or any other date as the time of accrual. Accordingly, the
District Court’s decision to dismiss Nachtsheim’s complaint rested on “matters outside
the pleading . . . presented to and not excluded by the court,” Fed. R. Civ. P. 12(b), and
the Union’s motion should have been “treated as one for summary judgment and disposed
of as provided in Rule 56.” Id. But since it appears from the parties’ briefs on the motion
that they had a “reasonable opportunity to present all material made pertinent to such a
motion by Rule 56,” id., and since no one presses the point on appeal, we conclude that
the parties had implied notice of the conversion and that any trial error was harmless. See
Rose v. Bartle, 871 F.2d 331, 340-42 (3d Cir. 1989).
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judgment.1
B.
Nachtsheim also argues that the District Court erred in granting Continental’s
motion for summary judgment. Summary judgment may be granted if the moving party
establishes that “there is no genuine issue as to any material fact and that [it] is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). All inferences drawn from the facts
submitted to the District Court must be drawn “in the light most favorable to the party
opposing the motion.” Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.
1976).
Applying these principles, we agree with the District Court that Continental was
entitled to summary judgment on Nachtsheim’s state law claims for breach of contract.
Section 2 of the Railway Labor Act (RLA), 45 U.S.C. § 151a, made applicable to the
nation’s airlines by 45 U.S.C. § 181, preempts state law governing “minor” disputes
between employers and employees. See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246,

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256 (1994) (citing sources). A dispute is minor if it involves “the interpretation or
application of existing labor agreements,” id., whereas a major dispute involves “rights
and obligations that exist independent of the CBA.” Id. at 260. It is tautological that a
contract right cannot be independent of a contract and that determining whether
Continental breached the CBA and the covenant of good faith and fair dealing implied
therein will involve “interpretation and application” of the CBA. Nachtsheim’s state law
contract claims were thus “minor” disputes and were preempted.
Nachtsheim’s federal contract claim presents a thornier issue. He brought the
claim under section 301 of the Labor Management Relations Act, but that Act does not
apply to employers subject to the RLA. See 29 U.S.C. § 152(2). By a 1936 amendment,
45 U.S.C. §§ 181-185, the coverage of the RLA was extended, with minor exceptions, to
“every common carrier by air engaged in interstate or foreign commerce.” Because
Continental is a “common carrier by air,” it is subject to the RLA, not the Labor
Management Relations Act.
Under the RLA, federal courts generally do not have jurisdiction over “minor”
disputes (as defined above), which must be litigated before special arbitral or
administrative tribunals. See Childs v. Pa. Fed’n Bhd. of Maint. Way Employees, 831
F.2d 429, 433 (3d Cir. 1987). Federal jurisdiction lies for such disputes in only four
exceptional situations: (1) when “the employer repudiates the private grievance
machinery”; (2) when “resort to administrative remedies would be futile”; (3) when “the

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employer is joined in a DFR claim against the union”; or (4) when “the union’s DFR
breach causes the employee to lose the right to present his or her grievance.” Miklavic v.
USAir Inc., 21 F.3d 551, 555 (3d Cir. 1994).
The first two exceptions clearly do not apply here. The third seems promising at
first blush, but we have held that it applies only when the plaintiff alleges facts “tying the
employer to the events complained of,” such as “collusion or some similar nexus between
the union and the employer,” rather than “separate and distinct” claims. Masy v. N.J.
Transit Rail Operations, Inc., 790 F.2d 322, 327 (3d Cir. 1986). Nachtsheim alleges that
Continental terminated him without cause and that his Union failed to provide him with
competent and effective representation. These are separate and distinct claims, and
Nachtsheim has not adduced any evidence of “collusion or some similar nexus” that
would warrant joining his employer in his federal suit.
The fourth and final exception is also unavailing. This Court took pains in Childs
to emphasize that the fourth exception “is a narrow one and cannot be interpreted as
undermining the general rule of exclusive NRAB jurisdiction for minor disputes.”
Childs, 831 F.2d at 441. The plaintiff must meet the “heavy burden” of showing that “the
union’s breach of its DFR precluded his recovery from the railroad, and that his reliance
on the union was reasonable.” Id. Nachtsheim has not come close to meeting this
standard, even at the summary judgment stage. He has neither disputed that the Union
had the power under the CBA to decline to prosecute his claim further, nor claimed that

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the Union’s representation was the sine qua non to proceeding further. Indeed, he
acknowledges that “under the RLA an employee may bring a grievance to his employer or
the NRAB on his own.” Br. of Appellant at 17. In short, Nachtsheim has presented no
evidence that he was “compelled by the actions of his union to turn to the federal courts.”
Childs, 831 F.2d at 440. The District Court thus lacked subject matter jurisdiction over
his claim.
We turn at last to the gravamen of Nachtsheim’s complaint, that Continental
terminated him because of his age. Our analysis is confined to the indirect evidence of
discrimination Nachtsheim presented under the third prong of the McDonnell Douglas
test. As we explained in Fuentes v. Perskie, a plaintiff must do more than “show that the
employer’s decision was wrong or mistaken” to avoid summary judgment. 32 F.3d 759,
765 (3d Cir. 1994). The plaintiff must adduce evidence that the employer’s proffered
reason was a pretext – that is, “a post hoc fabrication.” Id. at 764. A reasonable
factfinder may then infer that “the real motivation is the one that the plaintiff has
charged.” Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061, 1069 (3d Cir.
1996).
Nachtsheim’s evidence, which amounts to his own affidavit and criticism of the
quality of Continental’s investigation, does not rise to this level. He does not dispute that
he was captured on Continental’s security tape removing a garment bag from a closet at
about the same time that another employee’s bag went missing. In fact, he insists that the

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victimized employee’s bag “looked just like his.” Br. of Appellant at 57. This evidence
actually tends to show that any mistake by Continental was innocent. It certainly does not
show “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons that a reasonable factfinder could rationally
find them unworthy of credence.” Fuentes, 32 F.3d at 765.
Nachtsheim also offers as evidence of Continental’s discriminatory motive a letter
from Shirley Minn of Continental to Nachtsheim’s union lawyer, Jeff Oliver. The letter
reads in part: “Despite your assertion that Dan did not take someone else’s bag, the fact
that this was his second career (meaning he is more mature and credible than the average
junior flight attendant) the evidence overwhelmingly supports the charge of theft and
being untruthful.” App. II at 172. Although Nachtsheim protests that a triable issue
exists as to whether Mr. Oliver or Ms. Minn originally broached the subject of his
maturity, any such issue would be immaterial. Regardless of who uttered these words,
their syntax makes clear that “maturity” was considered, if anything, one of M r.
Nachtsheim’s assets, not a liability. He was terminated “[d]espite” his maturity, not
because of it. Because Nachtsheim has failed to adduce evidence that Continental’s
reason for discharging him was a pretext for unlawful discrimination, Continental was
entitled to summary judgment on his state and federal antidiscrimination claims.
III.
We have considered all of the appellant’s arguments and see no basis for reversal.

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The judgment of the District Court is therefore affirmed, except that part of its order of
May 8, 2003, granting Continental summary judgment on Nachtsheim’s contract claim
under the RLA. That part of the order is vacated, and the matter is remanded with
instructions to dismiss Nachtsheim’s claim for lack of subject matter jurisdiction.

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