Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—5th Cir.: United flight attendant’s age-based claims not preempted by RLA, (Jun 5, 2025)

By Kathleen Kapusta, J.D

The long-tenured flight attendant was terminated for purportedly engaging in a scheduling tactic prohibited by the parties’ collective bargaining agreement.

Finding that the state and federal age discrimination claims of a United Airlines flight attendant who was fired for “parking” in violation of the governing joint collective bargaining agreement could not be conclusively resolved through interpretation of the JCBA, and thus that the RLA did not preempt those claims, the Fifth Circuit vacated the grant of summary judgment in favor of the airline and remanded to the court below. Even if the flight attendant did park, a factfinder would still have to determine whether United applied its consequence for parking in a nondiscriminatory manner, the appeals court noted, and her right to be free from age discrimination exists independent of the JCBA (Palova v. United Airlines, Inc., No. 24-20136 (5th Cir. June 4, 2025 amended Dec. 11, 2025)).

Parking. During her nearly 30-year career with United, the Houston-based flight attendant purportedly maintained a perfect attendance record. Nonetheless, United fired her after concluding that she had engaged in “parking,” a flight attendant scheduling and trading tactic in which one attendant places a distributed flight onto another attendant’s schedule to facilitate that flight’s eventual transfer. Attendants who possess a parked flight, a flight they have no intent of servicing, often receive some kind of compensation in exchange for a desirable slot. Parking is forbidden under the terms of the JCBA.

Fired. In March 2019, United issued a reminder to all flight attendants that the airline had “zero tolerance” for parking and would “fully investigate [any instances] and take appropriate action, up to and including discharge.” It subsequently developed an algorithm to analyze flight trading data and determine which flight attendants had engaged in problematic trades. The algorithm identified the plaintiff as one of 28 flight attendants across three hubs who had engaged in parking.

She was directed to attend an investigatory meeting and after United found her explanation unconvincing, it fired her. Convinced that United was attempting to cut costs to offset COVID-related profit losses and alleging that the only three Houston-based attendants fired for parking were “all women in their late fifties or early sixties who had worked at the airline for decades,” the flight attendant sued for age discrimination in violation of the ADEA and state law. Asserting that United’s investigation was a sham, she noted that the algorithm gave substantial weight to an attendant’s seniority and that the spreadsheet that detailed her alleged parking maneuvers, which was the key piece of evidence against her, was “illegible and in small print” and presented to her “less than an hour” before the interview.

Lower court holding. The district court, finding that summary judgment was warranted under the RLA, explained that United would “undoubtably rely on the JCBA as its legitimate, nondiscriminatory reason for [the flight attendant’s] termination,” which would require it to “determine if Plaintiff actually engaged in Parking, which is not within the Court’s jurisdiction to do.”

Arguable basis test. Noting that the RLA “divests federal courts of jurisdiction over minor disputes” between carriers and employees, the Fifth Circuit explained that it uses the “arguable basis” test to determine whether a dispute is considered minor for RLA purposes. Under that test, said the court citing its 2008 decision in Carmona v. Sw. Airlines Co., a minor dispute is a dispute that may be conclusively resolved by interpreting the existing CBA.

Carmona. In Carmona—a case in which a flight attendant afflicted with psoriatic arthritis claimed the airline treated him differently than similarly situated female flight attendants in assessing attendance points—the Fifth Circuit, reversing the district court’s determination that the RLA preempted Carmona’s claims, concluded that his claims “allege[d] that CBA procedures were applied in a discriminatory manner, not that CBA procedures were fundamentally discriminatory.” In other words, said the court, the CBA’s provisions were “‘relevant to, but not dispositive of, the resolution of Carmona’s claims,’ and accordingly, the litigation did not present ‘a minor dispute under the RLA.’”

Finding that reasoning persuasive, the court pointed out that the flight attendant here alleged that United fired her and two other older Houston-based flight attendants for parking, when younger, similarly situated flight attendants who committed the same offense were not fired. “While United and [the flight attendant] disagree as to whether she parked, resolving that question is not ‘dispositive’ to her ADEA and TCHRA claims,” said the court, because a factfinder would ultimately have to resolve whether United applied its consequence for parking, termination, in a nondiscriminatory manner.

Statutory rights. To the court, it was significant that the flight attendant was seeking to enforce her statutory rights rather than her contractual rights embodied in the CBA as her “right to be free from age-related discrimination exists independent of the JCBA.”

For its part, United argued that Carbona was distinguishable because the attendant in that case “did not dispute that he violated the terms of his CBA,” while the flight attendant here maintained that she did not engage in prohibited parking and thus the resolution of her claims requires consideration of the JCBA. While the court agreed that this distinction was factually correct, her causes of action, it explained, contest that the real reason for her termination is her age and that alleged motivation does not bring the meaning of any CBA provisions into dispute. While the district court would have to refer to the CBA to consider the alleged disparate treatment allegations, the court observed, “mere reference to a bargaining agreement in resolving a claim does not necessitate a finding of RLA preemption or preclusion.”

The court next found distinguishable its 1996 decision in Reece v. Houston Lighting & Power Co., the case upon which United relied. In Reece, said the court, the plaintiff’s claim he was not promoted because of his race turned completely on “questions of promotion, seniority, and assignment to training programs, all of which are provided for in the CBA.” Here, in contrast, resolving why the flight attendant was fired “requires reference to the JCBA, but ultimately turns on an alleged pattern of firing consistent with age discrimination.” Applying its arguable basis test to further illuminate the distinction, the court explained that while “Reece featured claims embedded in the ‘express and implied terms of the parties’ collective bargaining agreement,’” the flight attendant’s age-based claims were not.

Thus, because the flight attendant’s claims could not be “conclusively resolved” through interpretation of the JCBA, the court found the RLA did not preempt or preclude them.

The case is No. 24-20136.

Judge: Graves, Jr., J.

Attorneys: Steven John Mitby (Mitby Pacholder Johnson) for Anna Palova. Michele Haydel Gehrke (Reed Smith) for United Airlines, Inc.

Companies: United Airlines, Incorporated

Cases: AgeDiscrimination Discrimination Procedure LouisianaNews MississippiNews TexasNews