                             In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 07-1518
LOUIS W. MILLER AND RICHARD J. ROYALS,
                                              Plaintiffs-Appellants,
                                 v.


AMERICAN AIRLINES, INC.,
                                                Defendant-Appellee.
                         ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
       No. 03 C 7756—Sidney I. Schenkier, Magistrate Judge.
                         ____________
      ARGUED NOVEMBER 7, 2007—DECIDED MAY 5, 2008
                         ____________


  Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. Plaintiffs Louis Miller and
Richard Royals, ages eighty and seventy-five years old
respectively, have sued their former employer, Ameri-
can Airlines, Inc. for failing to offer them a position with
salary comparable to that of their previous job of flight
engineer, which they held until May of 2002. Because the
arbitrator determined that the collective bargaining
agreement did not entitle the plaintiffs to positions of
equal pay and the plaintiffs also have not shown that
their age was the reason that they were offered inferior
2                                               No. 07-1518

positions, summary judgment was appropriate on their
claims under the Age Discrimination in Employment
Act (“ADEA”). Additionally, the plaintiffs cannot chal-
lenge the facial validity of the collective bargaining agree-
ment because this claim was not properly raised in their
charges filed with the Equal Employment Opportunity
Commission (“EEOC”). Therefore, we affirm the grant of
summary judgment in favor of American Airlines in its
entirety.


                   I. BACKGROUND
   In the 1950s, the plaintiffs began working as flight
engineers for American Airlines. American Airlines
historically operated aircrafts that required three indi-
viduals in the cockpit—the captain, first officer, and the
flight engineer. As technology became more advanced,
there was less need for flight engineers to occupy the
third seat in the cockpit. Additionally, airlines began
hiring certified pilots, rather than flight engineers, to
occupy the third seat. In 1964, American Airlines and its
two employee unions entered into a collective bargaining
agreement, the Tripartite Agreement (“Agreement”), that
preserved the rights of then-current flight engineers to
occupy the third seat of a three crew aircraft, but also
recognized the right of American Airlines to no longer
hire flight engineers. In the years following the agree-
ment, American Airlines began to retire its three-crew
aircraft, and in 1983, the Agreement was amended to reflect
this change. The new provision, Supplement U, provides
that:
    In the event a surplus of flight engineers exists, each
    flight engineer so affected, who is qualified or train-
No. 07-1518                                              3

    able, will be guaranteed placement within the Com-
    pany [American Airlines] . . . . At the time of his
    placement, the employee’s monthly salary will be
    fixed based on the average of his earnings for the
    previous twelve (12) months as a flight engineer. If
    the employee’s average monthly earnings as a flight
    engineer exceed the total monthly compensation
    actually earned in his new job, the employee will be
    paid such flight engineer’s guaranteed monthly earn-
    ings. Such guarantee will be in effect until his normal
    flight engineer retirement date, and thereafter, his
    salary will be governed by the compensation plan
    applicable to the new position.
Supplement U was negotiated due to concerns that new
technology would make flight engineers obsolete prior
to the vesting of their pensions. The provision was de-
signed to ensure that flight engineers would continue to
receive the flight engineer rate of pay until the “normal
flight engineer retirement date,” which the American
Airlines’ Retirement Benefit Plan sets as age sixty-five.
  In May 2002, American Airlines grounded the last of its
three crew airplanes, and the plaintiffs and one other
individual were the only three active flight engineers at
the time. Prior to the grounding of the fleet, American
Airlines sent the three remaining flight engineers a letter
offering them staff assistant positions in its publications
department, positions which paid $100,000 less than
their salaries as flight engineers. At that time of this
offer, plaintiff Royals was seventy years old and plaintiff
Miller was seventy-five years old.
 The plaintiffs filed charges with the EEOC against
American Airlines, alleging that they were discriminated
4                                                No. 07-1518

against because of their age in violation of the ADEA, 29
U.S.C. § 621 et seq., when the defendant did not offer them
a position of comparable salary which, they maintained,
was required by Supplement U of the Tripartite Agree-
ment. The plaintiffs filed suit, and the district court
initially found that the plaintiffs’ claims involved a
minor dispute over terms in a collective bargaining agree-
ment and therefore were preempted by the Railway
Labor Act (“RLA”), 45 U.S.C. § 151 et seq. The district
court then ordered the case stayed until the parties com-
pleted arbitration.
  During arbitration, the plaintiffs filed a grievance
with American Airlines, making essentially the same
allegations that they made in their ADEA complaint. The
arbitrator determined that the grievance was untimely
because it was filed more than 90 days after the occur-
rence being grieved. The arbitrator further determined
that American Airlines was not obligated by Supple-
ment U to offer alternative employment at a salary com-
parable to that of a flight engineer. The American Airlines’
Retirement Benefit Plan provides that the normal retire-
ment age is sixty-five, and the arbitrator found that the
plaintiffs were only guaranteed flight engineer pay until
that age.
  Following the arbitration decision, the district court
granted the defendant’s motion for summary judgment.
The district court adopted the arbitrator’s findings that
Supplement U did not guarantee flight engineer pay
past the age of sixty-five. It also found that the plaintiffs’
claim that Supplement U was facially discriminatory fell
outside the scope of their EEOC charge, and even if the
merits could be reached, the claim failed because there
was no evidence that Supplement U was motivated by
a discriminatory purpose. The plaintiffs appeal.
No. 07-1518                                                 5

                      II. ANALYSIS
  A. Summary judgment was appropriate on the ADEA
     claim because there was no guarantee of compara-
     ble pay after the age of sixty-five.
  We review the district court’s grant of summary judg-
ment de novo, viewing the record and all reasonable
inferences drawn from it in the light most favorable to the
party opposing the motion. Peirick v. Ind. Univ.-Purdue
Univ. Indianapolis Athletic Dep’t, 510 F.3d 681, 687 (7th
Cir. 2007). Summary judgment is appropriate only when
the materials before the court demonstrate “that there is
no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). To prevail on their ADEA claim,
the plaintiffs must prove that they were discriminated
against in the terms and conditions of their employment
because of their age, 29 U.S.C. § 623. Hoffmann v. Primedia
Special Interest Publ’ns., 217 F.3d 522, 525 (7th Cir. 2000)
(“To succeed in an ADEA claim, a plaintiff must establish
that he would not have received adverse treatment but
for his employer’s motive to discriminate on the basis of
his age.”) (internal citations omitted). The plaintiffs do not
have to show, however, that their age was the sole motiva-
tion for the employer’s decision; it is sufficient if age
was a “determining factor” or a “but for” element in the
decision. Anderson v. Stauffer Chem. Co., 965 F.2d 397,
400 (7th Cir. 1992).
  The plaintiffs’ first claim can be characterized as an “as
applied” challenge to Supplement U. The plaintiffs con-
tend that American Airlines discriminated against them
in the terms and conditions of their employment by fail-
ing to provide them with comparable pay as required
by Supplement U of the Tripartite Agreement. Supple-
6                                                No. 07-1518

ment U states in relevant part that: “Such guarantee [of a
flight engineer’s guaranteed monthly earnings] will be in
effect until his normal flight engineer retirement date and,
thereafter, his salary will be governed by the compensa-
tion plan applicable to the new position.” (Emphasis
added.) In the arbitration proceedings, the arbitrator
interpreted this sentence to mean that following the
termination of the flight engineer positions, the col-
lective bargaining agreement did not guarantee positions
of comparable pay to the plaintiffs after they reached
normal retirement age of sixty-five.
   The district court deferred to the arbitrator’s interpreta-
tion of this key language, correctly finding that resolu-
tion of the plaintiffs’ ADEA claim is dependent upon the
interpretation of Supplement U of the Agreement and
therefore governed by the arbitration provisions of the
RLA. The RLA provides for mandatory arbitration over
labor disputes arising out of the interpretation of col-
lective bargaining agreements in the railway and airline
industries. Hawaiian Airlines v. Norris, 512 U.S. 246, 252-53
(1994). The RLA defines two categories of disputes: “major
disputes” that “relate to ‘the formation of collective
[bargaining] agreements or efforts to secure them’ ” and
“minor disputes” that “grow out of grievances or out of
the interpretation or application of agreements covering
rates of pay, rules, or working conditions.” Id. The plain-
tiffs’ allegation that Supplement U requires a specific
rate of pay after the age of sixty-five is dependent upon
interpreting the phrase “normal flight engineer retire-
ment date.” Thus, this particular claim was subject to the
arbitration provisions of the RLA, and we are bound by
the arbitrator’s interpretation that Supplement U does not
obligate American Airlines to provide comparable pay after
No. 07-1518                                               7

employees have reached the normal flight engineer retire-
ment date. See Tice v. Am. Airlines, Inc., 288 F.3d 313, 318
(7th Cir. 2002) (“only the arbitral boards convened under
the aegis of the Railway Labor Act have the authority to
determine the rights conferred by a collective bargaining
agreement in the airline industry”).
   This is not to suggest, however, that employees are
always precluded from bringing an ADEA claim in fed-
eral court if the dispute involves a collective bargaining
agreement. Generally, a plaintiff can file an ADEA lawsuit
in federal court that may be in some way related to a
collective bargaining agreement. However, if the success
of the claim is dependent upon an interpretation of the
collective bargaining agreement’s terms, the court cannot
consider it. See Brown v. Illinois Cent. R.R., 254 F.3d 654,
664 (7th Cir. 2001) (“[T]he best way to harmonize these
two statutes [the RLA and the ADA] is to allow a plain-
tiff employee to bring an ADA claim in federal court
against his employer (even if his employment is gov-
erned by a collective bargaining agreement which is sub-
ject to the RLA), unless the resolution of his ADA claim
requires the court to interpret the collective bargaining
agreement’s terms as a potentially dispositive matter.”);
Tice, 288 F.3d at 317 (providing that dismissal is appro-
priate where “a particular interpretation of the collective
bargaining agreement is potentially dispositive of a the
plaintiff’s claim”).
  Here, the plaintiffs’ claim was dependent upon the
phrase “normal flight engineer retirement date” in Supple-
ment U. The arbitrator’s interpretation of this phrase in
the collective bargaining agreement to mean that the
plaintiffs were entitled to flight engineer pay only until
the normal flight engineer retirement date and his sub-
8                                               No. 07-1518

sequent conclusion that such pay was not required to
continue following this date eviscerated the plaintiffs’
ADEA claims. See Tice, 288 F.3d at 317.
  The plaintiffs contend that the arbitrator’s determina-
tions have no bearing on their ADEA claim because their
claim is premised on the idea that Supplement U creates
a “benefit” that is part of the employment relationship,
a benefit that was withheld from the plaintiffs on the
basis of their age. This issue, according to the plaintiffs,
was not before the arbitrator nor was it considered by
the district court. There is no evidence, however, that the
plaintiffs had a contractual right to comparable pay after
the age of sixty-five under Supplement U, or in their
words, that they were entitled to a “benefit” created by
virtue of the employment relationship. While “an em-
ployee has both a contractual right by virtue of a col-
lective bargaining agreement (or other employment
contract), and a statutory right to be free from discrimina-
tion,” Tice, 288 F.3d at 317, the plaintiffs point to no lan-
guage in Supplement U, express or implied, that can
support their argument that American Airlines has dis-
criminated against them by denying them positions of
comparable pay. The express language of Supplement U,
which guarantees flight engineer pay only until normal
retirement age, provides that salary will then “be governed
by the compensation plan applicable to the new position,”
language that is clearly contrary to their position. See
Miller v. Crystal Lake Park Dist., 47 F.3d 865, 867 (7th Cir.
1995) (“A ‘legitimate claim of entitlement’ is one that is
legally enforceable—one based on statutes or regulations
[or contracts] containing ‘explicitly mandatory language’
that links ‘specified substantive predicates’ to prescribed
outcomes.”) (internal citations omitted); Hohmeier v. Leyden
No. 07-1518                                                  9

Cmty. High Sch. Dist. 212, 954 F.2d 461, 464 (7th Cir. 1992)
(“Property interests in employment may be created by
express or implied contracts, municipal ordinances or
state laws.”). Absent express language guaranteeing
positions of comparable pay, “an employer [has] no duty
[under the ADEA] to give another job to an employee
validly disqualified from holding his present job.” Tice,
288 F.3d at 315. Accordingly, we find that summary
judgment was appropriate on the plaintiffs’ “as applied”
challenge to Supplement U.


  B. The plaintiffs’ facial discrimination claim was not
     properly alleged in their EEOC charges.
   Assuming arguendo that we can reach the issue of
whether Supplement U is facially discriminatory since,
unlike the “as applied” challenge, the arbitrator’s interpre-
tation of Supplement U is not necessarily dispositive of a
facial challenge to this provision, see Brown, 254 F.3d at
664, the plaintiffs’ facial challenge to Supplement U is
still not properly before the court. A plaintiff generally
cannot bring a claim in an ADEA lawsuit that was not
alleged in the EEOC charge, and, while not a jurisdic-
tional requirement, it is a prerequisite with which a
plaintiff must comply before filing suit. Cheek v. W. & S. Life
Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994). This requirement
is to ensure that the employer has notice about the particu-
lar challenged conduct and provides an opportunity
for settlement of the dispute. Id. (citations omitted). A
plaintiff, however, may proceed on a claim not explicitly
mentioned in his EEOC charge “if the claim is like or
reasonably related to the EEOC charges, and the claim in
the complaint reasonably could be expected to grow out
of an EEOC investigation of the charge.” Id. (citing Peters
10                                             No. 07-1518

v. Renaissance Hotel Operating Co., 307 F.3d 535, 551 (7th
Cir. 2002) (internal quotations and citations omitted)). At
the very least, the claims should involve the same con-
duct and implicate the same individuals in order to be
considered “reasonably related” to the allegations in the
EEOC complaint. See Cheek v. Peabody Coal Co., 97 F.3d
200, 202-03 (7th Cir. 1996).
   Generally, we apply a liberal standard in determining
if new claims are reasonably related to those claims
mentioned in the EEOC charge. Farrell v. Butler Univ.,
421 F.3d 609, 616 (7th Cir. 2005). Here, the plaintiffs
checked the ADEA box on their EEOC charge and
stated that they were “subjected to different terms and
conditions of employment” because they were “not offered
a position with a comparable salary as required by the Tri-
Partite Agreement.” It is true that their claim that the
Tripartite Agreement is facially discriminatory involves
the same parties and the same facts as the other claim,
and the plaintiffs checked the relevant box. See Cheek,
97 F.3d at 200. Nevertheless, their argument that the
Tripartite Agreement requires that they be given positions
of comparable pay and they were denied these positions
because they were “beyond normal retirement age”
conveys that at most, the plaintiffs are alleging that Sup-
plement U is being applied in a disparate manner. To now
challenge Supplement U as facially discriminatory,
which is a much broader claim than that alleged in the
EEOC charge, is also inconsistent with the plaintiffs’
allegations that American Airlines failed to do something
that Supplement U required. Cf. Farrell, 421 F.3d at 616
(finding that plaintiff’s statements in her EEOC charge
encompassed a claim of disparate impact where she
stated “I believe that there is an inherent or deliberate
No. 07-1518                                               11

bias against women faculty and, in this case, only two
women from the entire faculty would have met the
criteria for the award, yet many more men would have
been eligible.”). To allow the plaintiffs to proceed on their
facial challenge to Supplement U would take the “reason-
ably related” requirement much further than intended.
   Additionally, the allegations in the plaintiffs’ EEOC
charges were not enough to put American Airlines on
notice that the plaintiffs were planning to lodge a facial
challenge against Supplement U. Geldon v. S. Milwaukee Sch.
Dist., 414 F.3d 817, 819 (7th Cir. 2005) (the rule that a
plaintiff may bring only those claims in her EEOC charge
is “meant both to give the EEOC and employer an op-
portunity to settle the dispute and to give the employer
fair notice of the conduct about which the employee is
complaining.”). In their respective EEOC charges, the
plaintiffs state, very generally, that they were subjected to
different terms and conditions of employment based on
age. They now seek to use this language as an opening to
pursue a legal theory that is certainly related, but not
foreseeable from the allegations made in the charge. See,
e.g., Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir.
2002) (stating that a plaintiff cannot make conclusory
statements of discrimination in her EEOC charge and then
file suit on whatever facts or legal theory she may later
decide upon). The EEOC charges filed by the plaintiffs
allege behavior that is considerably more narrow than
what the plaintiffs assert here; there is no notice to Ameri-
can Airlines that it may have to defend Supplement U
against a facial challenge. Therefore, we find that the
plaintiffs’ claim that Supplement U was facially discrim-
inatory was not properly alleged in the EEOC charge,
and we need not reach the merits of this argument.
12                                            No. 07-1518

                  III. CONCLUSION
  For the foregoing reasons, the district court’s grant of
summary judgment in favor of American Airlines is
AFFIRMED.




                   USCA-02-C-0072—5-5-08
