By Kurt Richwerger
Without explanation or warning, on April 22nd, 2014 the Allied Pilots Association (APA), the collective bargaining agent for all 10,000 American Airlines (AA) pilots, locked out 233 of its members – all of whom are medically disabled – from what is called the “challenge and response (C&R)” section of the APA website. C&R is a members-only discussion forum. The 233 pilots are all classified by the APA as “MDD” or medically disabled and dropped from the seniority list. AA policy is that after 5 years of disability members lose their seniority. This policy has been the subject of an ongoing dispute between the APA and its disabled pilots, and many pilots wish the APA to grieve the policy on grounds that it violates the CBA and the Americans with Disabilities Act (ADA). Regardless, MDDs have always been classified as members in good standing by the APA, but now have been prevented from entering what APA calls its “virtual union hall.”
The lockout, according to some disabled pilots, is meant to prevent them from discussing the allegedly poor treatment of disabled pilots by the APA and by American Airlines (AA). According to one pilot, an active website discussion began with a member’s posting of a press release regarding a March 2014 lawsuit against AA brought by Lawrence Meadows, one of the AA disabled pilots. The lawsuit, filed in federal court, accuses AA of violating the employee whistleblower protections of the Sarbanes Oxley Act by retaliating against Meadows and terminating him after Meadows informed AA of suspected fraud in its cost savings program scheme to terminate pilot disability payments funded by AA pension plans.
Disabled members began commenting and posting on C&R and told their own “horror stories,” in the words of one disabled pilot, stories which did not paint the APA in a very favorable light. Meanwhile in mid- April 2014 Meadows requested that APA represent him in a seniority reinstatement grievance hearing and APA refused; he responded to the APA legal department that he would file EEOC disability charges against APA and would advise others to do the same. Two hours later, he and all other 233 MDDs were locked out of the website.
Meadows’ Sarbanes Oxley lawsuit provides some background and context for the above events. It alleges that AA targeted him in a fraudulent “cost-savings” initiative, as American faced the threat of bankruptcy and its pension obligations were badly underfunded.
The lawsuit alleges that in 2004 Meadows, at that time a 13-year APA member and pilot, became disabled and began receiving disability benefits as his application was approved by the AA Medical Director. In the 2004-07 period when he received benefits, Meadows attempted to get clearance to return to work twice, but was unable to obtain a required FAA medical recertification to fly for AA due to his condition. In fact, regular medical updates of his condition, required under the plan, found it worsening, reflected in AA records.
But despite his worsening condition, he was suddenly terminated from disability benefits in December 2007 — not even told of this termination by AA – checks just stopped coming. Meadows appealed the loss of disability status to the AA’s Pension Benefits Administration Committee (PBAC). PBAC had hired an outside party, “Western Medical Evaluators” (WME), to review such appeals. The WME review concluded that Meadows’ claim be denied in 2008. But, Meadows learned from his 2010 ERISA lawsuit against AA that WME was not really a third party clinical source as required by the CBA, but rather a small worker’s compensation claims processor that had a history of falsifying claims and records, and in fact WME was permanently shut down by the Texas State Insurance Board in 2010 for fraudulent practices. In discovery during his ERISA suit, WME could produce no medical records that they relied upon in conducting their peer review of Meadows’ case.
Meadows’ ERISA lawsuit also revealed the AA “cost savings program,” which tracked some 84 disabled pilots including himself in a spreadsheet, and he was one of five designated for “cost savings.” APA also challenged the PBAC review process in a 2009 lawsuit and the clinical review was moved to the Mayo Clinic.
The suit continues: after denial of benefits Meadows was placed on unpaid sick leave and told he had to return to full time pilot work by getting medical clearance. He applied again for the FAA clearance to return to work but was again denied due to his condition. But instead of returning to disability status, Meadows was kept on unpaid sick leave. The 2010 ERISA lawsuit meanwhile went to federal mediation and in the process Meadows revealed the use of WME and the existence of the fraudulent cost savings initiative to AA’s corporate directors and AA’s legal counsel, and told AA that his lawyers were intending to bring additional actions. Meadows was then told by AA he had exceeded AA’s sick leave maximum of five years and threatened with termination – odd, because Meadows had already exceeded that policy by three and a half years and was never threatened with termination. The AA Reasonable Accommodation Policy requires that if a disabled pilot cannot obtain FAA clearance to fly an aircraft he may request a reasonable accommodation in another craft or class so Meadows requested an accommodation in one of AAs non flying pilot positions — which would have kept him in the CBA , kept his seniority and eligibility for benefits, but he was refused. Meadows was terminated in 2011, after refusing to accept an accommodation outside of the CBA, which would have inferior status and benefits and prevented him from ever returning to work as a pilot.
The suit asks for relief in the form of a new assignment to a position in the bargaining unit with full wages commensurate with his seniority status and suggests three possible positions. It also asks for reinstatement of his benefit package, back pay and lost benefits. It also asks for a money sum for “intentional infliction of emotional distress” which the suit alleges has led to a significant exacerbation of Meadows’ condition, and asks for attorney fees.
After Meadows’ press release appeared on the C&R portion of the APA website, another disabled pilot, Kathy Emery, posted a document in which she alleges she was also the target of the AA cost savings plan. Like Meadows, her disability benefits were unexpectedly discontinued, she had been receiving disability payments for several years and a doctor selected by AA provided updates to AA on her condition. But in Jan. 2007 she was stripped of all disability benefits without notice, just around the time Meadows lost his benefits.
Emery describes in her posting that like Meadows, she exercised her right to appeal the loss of her disability to the AA PBAC and suffered the same fate — WME denied her appeal. After her appeal was denied she was placed on unauthorized leave of absence and told to appear at a hearing. The hearing officer directed her to obtain a First Class Medical Clearance so she could go back to work. But soon after, she was told by the same AA Medical Director that had stopped her disability payments, that he would not give her such clearance but suggested she might be given a “reasonable accommodation” “stapling papers.”
Like Meadows, Emery then filed an ERISA suit against AA in federal court in Florida. Her ERISA case unearthed the same fraudulent practices by WME that allegedly took place in Meadows case.
But Emery has issues with APA that Meadows did not. Emery and APA filed a grievance against AA in December 2007 but it was not settled and she is still awaiting an arbitration date. Emery was also entitled to disability benefits under the APA disability plan. So in 2003 she filed for benefits. No payments were received for five years. She filed another ERISA suit this time against the APA , and won a settlement of $48,000 from a federal court for the back years.
But there is even more to Emery’s dispute with APA. Emery alleges she received far less than her fair share of the AA “Equity Distribution,” which has become the basis for her EEOC complaint against APA. In the formation of the new American Airlines, AA pilots were given a 13.5 percent equity stake, as pilots became part owners of the new AA. Emery received an award estimated at $23,000, but similarly situated male pilots who had also been “terminated” received 5 to 6 times that amount. The reason: male pilots that had been “terminated” filed grievances that were given a presumption of likely success – thus they were held to be still on “active status.” Emery alleges disparate treatment when her grievance was not given the same presumption, so she was not treated as “active” resulting in a much lower share of the equity. Emery also alleges in her complaint that the APA discriminated against other disabled pilots in the equity distribution.
Both Emery and Meadows are exploring ways to remove the website lockout.