Michele H. Gehrke

Gehrke handles a broad spectrum of defense-side labor and employment cases and counseling, but she has carved out for herself a niche as an expert on the Railway Labor Act, which covers employment law on both planes and trains.

"The Railway Act work I do is somewhat unique," she said. "Not many do it. It's a great opportunity for my career."

After Kathleen Betts was fired from her pilot's job with Continental Airlines for twice failing alcohol tests, she unsuccessfully challenged her discharge in arbitration. Then she sued under the Railway Labor Act, seeking to vacate the arbitration award on public policy grounds.

Defendant United Airlines Inc., which inherited the case when it merged with Continental, retained Gehrke. Betts lost in the Eastern District of Illinois, and in April, the 7th U.S. Circuit Court of Appeals unanimously affirmed. Betts v. United Airlines, 18-3336 (7th Cir., filed Oct. 30, 2018).

"The only question was whether the arbitrator had misinterpreted the contract. It was a very narrow standard of review," Gehrke said. "On appeal, she represented herself and filed a lot of briefing and motions. It was a bit of a mess to get the panel to the merits."

Gehrke was also the lead attorney representing Southwest Airlines in litigation by a former flight attendant, Charlene Carter, who sent graphic anti-abortion Facebook videos and messages to her union president and was terminated. Carter sued in part for religious discrimination.

"In part, it was union politics," Gehrke said. "Southwest flight attendants went to a Planned Parenthood march, and in Ms. Carter's mind the union was supporting abortion rights." Carter v. Southwest Airlines, 17-CV02278 (N.D. Texas, filed Aug. 25, 2017).

An arbitrator denied Carter's grievance and found Southwest had just cause for the termination under the company anti-harassment and anti-discrimination policies. A federal judge granted Gehrke's dismissal motion on Carter's claims for Railway Labor Act and constitutional violations. Her remaining retaliation and religious discrimination claims remain in progress.

Gehrke said it is one of the first social media cases being litigated in federal court under the Railway Act, so the case is being watched closely within the airline industry. However the court rules, Gehrke said she expects an appeal to the 5th U.S. Circuit Court of Appeals, given the complex and novel legal issues at stake.

"The ground this case is breaking is at the intersection of employee rights to post on social media and the employer's right to maintain a harassment-free workplace," Gehrke said. "There's little case law for guidance here."

-- John Roemer