Miller v. Southwest Airlines Co.
Filing
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ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND MOTION FOR JUDGMENT ON THE PLEADINGS by Judge William Alsup [granting in part and denying in part 24 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 2/12/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CLAUDIA MILLER, an individual,
No. C 12-03482 WHA
Plaintiff,
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For the Northern District of California
United States District Court
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v.
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SOUTHWEST AIRLINES, CO., a Texas
corporation, and DOES 1 through 10,
inclusive,
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ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION AND
MOTION FOR JUDGMENT ON
THE PLEADINGS
Defendants.
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/
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INTRODUCTION
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In this employment-discrimination action, defendants move under Rule 12(b)(1) to
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dismiss plaintiff’s claims for lack of subject-matter jurisdiction and under Rule 12(c) for
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judgment on the pleadings. For the reasons stated below, defendants’ motions are GRANTED IN
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PART and
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DENIED IN PART.
STATEMENT
Plaintiff Claudia Miller is an African-American female who was employed by defendant
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Southwest Airlines, Co. as an operations agent at the San Francisco International Airport.
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During the first six months of her employment, plaintiff was a probationary employee who was
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not entitled to all of the benefits offered to permanent Southwest employees (Compl. ¶¶ 9–10).
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While as a probationary employee plaintiff was not entitled to union membership, the parties
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agree that plaintiff was subject to the collective bargaining agreement (CBA) between defendant
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and the Transport Workers Union of America.
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During plaintiff’s employment with defendant, she was often required to work excessive
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mandatory overtime hours. Plaintiff alleges that non-African American employees were not
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asked to nor required to work excessive mandatory overtime hours. Plaintiff was often assigned
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to work alone at stations that required a constant employee presence or to relocate from gate to
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gate, which prevented her from taking her meal-and-rest breaks (id. at ¶¶ 12–15).
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Plaintiff’s overwhelming work schedule, which included double-shifts and her inability
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to take her meal-and-rest breaks, began to take a physical and emotional toll. In July 2011, after
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nearly four months of employment, plaintiff wrote an email to her supervisor Assistant Station
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Manager Lei’Lani Dresser describing her concerns about understaffing certain shifts and forcing
plaintiff to miss meal-and-rest breaks as well as bathroom breaks. Plaintiff also explained that
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For the Northern District of California
United States District Court
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operations agents, like herself, who work long shifts without breaks were more likely to make
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errors and pose safety concerns (id. at ¶¶ 16–17).
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The day after the email was sent, Manager Dresser allegedly began issuing plaintiff
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disciplinary write-ups for minor errors. Other non-African American employees allegedly made
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the same minor errors and were not written up. Plaintiff alleges that defendant wanted her out
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of the company because she had complained about workplace practices (id. at ¶¶ 19–21).
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Less than two months after plaintiff sent Manager Dresser the email, defendant
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terminated plaintiff. Plaintiff had two weeks left before her probationary period ended.
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Plaintiff was told that her performance problems were the reason for termination (id. at ¶ 22).
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Plaintiff, however, alleges that she had received multiple employee commendations for her
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excellent work performance, one of which was given to plaintiff less than one month before
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being terminated (id. at ¶ 11).
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Plaintiff allegedly observed defendant terminate several African-American and Latino
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employees within close proximity to the end of their probationary periods. Plaintiff allegedly
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did not observe or learn of a single termination of a non-African American or non-Latino
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probationary employee (id. at ¶ 23).
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Plaintiff timely filed charges with the California Department of Fair Housing and
Employment (DFEH) and the U.S. Equal Employment Opportunity Commission (EEOC).
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Plaintiff received a notice of case closure and right-to-sue notice from the DFEH, and a
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right-to-sue notice from the EEOC (id. at ¶¶ 24–26).
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On July 2012, plaintiff filed the complaint herein. Plaintiff alleges race discrimination
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under Title VII and California’s FEHA, failure to provide meal-and-rest breaks, retaliation under
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California Labor Code Section 226.7, and wrongful termination in violation of public policy.
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Defendant has now filed a motion to dismiss for lack of subject-matter jurisdiction
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arguing that all of plaintiff’s claims are preempted by the Railway Labor Act. Defendant has
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also filed a motion for judgment on the pleadings, arguing that plaintiff’s claims for meal-and-
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rest breaks, retaliation, and wrongful termination are preempted by the Airline Deregulation Act.
On February 7, 2013, the parties attended the hearing on the instant motions. At the
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For the Northern District of California
United States District Court
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hearing, plaintiff’s counsel raised for the first time a decision by our court of appeals that was
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not included in plaintiff’s opposition. Defendant was allowed to file a supplemental brief in
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response, which the Court has reviewed.
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ANALYSIS
As an initial matter, plaintiff contends that defendant’s Rule 12(b)(1) motion is not timely
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because defendant filed an answer prior to filing the motion. As stated by our court of appeals,
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however, “the deadline for making a Rule 12(b)(1) motion to dismiss for lack of subject-matter
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jurisdiction is prolonged by Rule 12(h)(3), which provides that [i]f the court determines at any
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time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Wood v. City of
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San Diego, 678 F.3d 1075, 1082 (9th Cir. 2012) (quoting Arbaugh v. Y. & H. Corp., 546 U.S.
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500, 506 (2006)) (internal quotations omitted). A motion for subject-matter jurisdiction “may be
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raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial
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and the entry of judgment.” Ibid. The Rule 12(b)(1) motion is, therefore, timely.
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Our court of appeals has held that a Rule 12(c) motion “is properly granted when,
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accepting all factual allegations in the complaint as true, there is no issue of material fact
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in dispute, and the moving party is entitled to judgment as a matter of law.” Chavez v.
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United States, 683 F.3d 1102, 1108–09 (9th Cir. 2012) (quoting Fleming v. Pickard, 581 F.3d
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922, 925 (9th Cir. 2009). The analysis under a Rule 12(c) motion is substantially identical to a
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Rule 12(b)(6) motion because “under both rules, a court must determine whether the facts
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alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.” Ibid.
RETALIATION CLAIM UNDER LABOR CODE.
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1.
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To pursue a retaliation claim under California Labor Code Section 1102.5, plaintiff
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must first exhaust her administrative remedies. “Where an administrative remedy is provided
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by statute, relief must be sought from the administrative body and this remedy exhausted before
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the courts will act.” Campbell v. Regents of Univ. of Cal., 35 Cal. 4th 311, 321 (2005) (internal
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quotations omitted).
provided by California Labor Code Section 98.7, which provides that an aggrieved person must
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For the Northern District of California
Under Campbell, the administrative remedy for a violation of Section 1102.5(c) is
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United States District Court
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first file a complaint with the California Labor Commissioner prior to bringing suit in court.
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Ferretti v. Pfizer, Inc., 855 F. Supp. 2d 1017, 1023 (N.D. Cal. Feb. 29, 2012) (Judge Lucy Koh).
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The complaint to the Labor Commissioner must be filed within six months after the violation
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occurred. Cal. Lab. Code § 98.7(a). The undersigned has held that administrative exhaustion is
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required before a plaintiff may bring a retaliation claim under Section 1102.5. Wright v. Kaiser
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Found. Hosps., 2012 U.S. Dist. LEXIS 132459, at *6 (N.D. Cal. Sept. 17, 2012). Plaintiff’s
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complaint states that she filed charges with the DFEH and the EEOC, but not with the Labor
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Commissioner (Compl. ¶ 24). Plaintiff’s opposition does not address at all the failure to exhaust.
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Defendant’s motion for judgment on the pleading is GRANTED.
RAILWAY LABOR ACT PREEMPTION.
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2.
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Congress enacted the Railway Labor Act (RLA) to handle labor disputes. In 1936, the
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RLA was extended to cover the airline industry. The Supreme Court stated:
Congress’ purpose in passing the RLA was to promote stability
in labor-management relations by providing a comprehensive
framework for resolving labor disputes . . . To realize this goal,
the RLA establishes a mandatory arbitral mechanism for the
prompt and orderly settlement of two classes of disputes . . .
Major disputes relate to the formation of collective bargaining
agreements or efforts to secure them . . . Minor disputes grow
out of grievances or out of the interpretation or application of
agreements covering rates of pay, rules, or working conditions.
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Hawaiian Airlines v. Norris, 512 U.S. 246, 252 (1994) (internal quotations and citations
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omitted). The Supreme Court has held that minor disputes, e.g. those “involving the
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interpretation or application of existing labor agreements,” are preempted by the RLA. Id. at
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256. Claims involving the enforcement of rights independent of a CBA, however, are not
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preempted. Ibid.
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A.
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Title VII Race Discrimination Claim.
Plaintiff asserts a race discrimination claim under Title VII of the Civil Rights Act of
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1964. Under Title VII, it is unlawful for an employer to discharge or “discriminate against any
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individual with respect to his compensation, terms, conditions, or privileges of employment”
because of an individual’s race. 42 U.S.C. 2000 et seq. Our court of appeals has held that
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For the Northern District of California
United States District Court
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Title VII rights exist independent of the CBA. Felt v. Atchison, T. & S. F. Ry., 60 F.3d 1416,
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1419 (9th Cir. 1995). In Felt, our court of appeals stated that whether the plaintiff has a
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meritorious Title VII claim cannot be conclusively resolved merely by consulting the CBA, so
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the RLA does not preclude litigation of Title VII rights. Id. at 1420. Plaintiff’s Title VII claim
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is, therefore, not preempted by the RLA.
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Defendant argues that the RLA preempts plaintiff’s Title VII claim because such claims
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cannot be resolved without interpreting and applying the CBA. It argues that plaintiff’s
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allegations of shift and staffing assignments, assigned overtime, and termination during her
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probationary period are terms of the CBA that must be interpreted (Br. 8). Our court of appeals,
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however, has affirmed that Title VII rights are independent rights outside of the CBA and thus
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are not preempted by the RLA. See Saridakis v. United Airlines, 166 F.3d 1272, 1276 (9th Cir.
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1999). Defendant’s motion to dismiss the Title VII claim for lack of subject-matter jurisdiction
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is, therefore, DENIED.
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B.
FEHA Race-Discrimination Claim.
Plaintiff also asserts a race-discrimination claim under FEHA. As with Title VII, the
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FEHA makes it unlawful for an employer to discharge a person or to “discriminate against the
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person in compensation or in terms, conditions, or privileges of employment” because of a
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person’s race. Cal. Govt. Code § 12940(a). As with the Title VII claim, defendant argues that
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plaintiff’s race-discrimination claim is preempted by the RLA because it cannot be resolved
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without interpreting the CBA. Our court of appeals, however, has repeatedly affirmed that
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FEHA claims are also independent of the CBA and not preempted by the RLA. See Saridakis,
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166 F.3d at 1277. In Espinal v. Northwest Airlines, 90 F.3d 1452, 1457 (9th Cir. 1996), our
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court of appeals applied a three-part analysis to determine if a disability discrimination claim
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brought under the FEHA was preempted by the RLA. It concluded that the FEHA claim was not
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preempted because: (i) the CBA did not govern the actions that gave rise to the discrimination
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claims, (ii) the FEHA statute has clear statutory and regulatory standards to evaluate the claim
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without considering provisions of the CBA, and (iii) the FEHA statute’s intent is that
employment without discrimination is a public policy of California that cannot be altered by
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For the Northern District of California
United States District Court
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private contract. Id. at 1457–58. Plaintiff has asserted a FEHA claim that is not preempted by
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the RLA. Defendant’s motion to dismiss the FEHA claim for lack of subject-matter jurisdiction
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is, therefore, DENIED.
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C.
Wrongful Termination in Violation of Public Policy.
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The Supreme Court in Hawaiian Airlines held that a wrongful discharge in violation of
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public policy claim was not preempted by the RLA because it is state tort law that is apart from
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any CBA provision. Hawaiian Airlines, 512 U.S. at 258. Moreover, our court of appeals has
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reached the same conclusion “because such claims are derived from sources outside the CBA.”
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Saridakis, 166 F.3d at 1278. Here, defendant argues that this claim should be dismissed because
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it is derivative of the race-discrimination claims that are preempted. This argument fails because
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the race-discrimination claims are not preempted. Defendant’s motion to dismiss the wrongful
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termination in violation of public policy claim, therefore, is DENIED.
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3.
AIRLINE DEREGULATION ACT PREEMPTION.
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In 1978, Congress enacted the Airline Deregulation Act in “determining that maximum
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reliance on competitive market forces would best further efficiency, innovation, and low prices
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as well as variety [and] quality . . . of air transportation services [].” Morales v. Trans World
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Airlines, Inc., 504 U.S. 374, 378 (1992) (internal quotations and citations omitted).
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The Deregulation Act includes an express federal preemption provision which provides that
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“a State . . . may not enact or enforce a law, regulation or other provision having the force
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and effect of law related to a price, route, or service of an air carrier.” 49 U.S.C. 41713(b)(1).
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The Supreme Court articulated the standard that “state enforcement actions having a connection
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with, or reference to, airline rates, routes, or services are pre-empted [].” Id. at 384 (internal
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quotations and citations omitted). In a subsequent case, the Supreme Court specified that the
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Deregulation Act preempts state-imposed regulation of air carriers, but does not preempt
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contract terms set by the parties themselves. Am. Airlines v. Wolens, 513 U.S. 219, 221 (1995).
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A.
Meal-and-Rest Break Claim.
At issue now is whether the Deregulation Act’s preemption provision is broad enough
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For the Northern District of California
United States District Court
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to apply to plaintiff’s meal-and-rest break claim. There is no decision by our court of appeals
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that specifically addresses whether a state meal-and-rest break statute is preempted by the
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Deregulation Act. Recently, however, our court of appeals highlighted the distinction the
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Supreme Court made in Wolens “between state laws that regulate airlines [which are preempted]
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and state enforcement of contract disputes [which are not preempted]” to conclude that state
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claims of implied covenant of good faith and fair dealing were not preempted. Ginsberg v.
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Northwest, Inc., 695 F.3d 873, 880–81 (9th Cir. 2012) (quoting Wolens, 513 U.S. at 228–30).
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The undersigned has previously considered whether the Deregulation Act preempts
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claims brought under California’s meal-and-rest break statute. In Alim v. Aircraft Serv. Int’l.,
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2012 U.S. Dist. LEXIS 119964, at *2 (N.D. Cal. Aug. 23, 2012), the plaintiffs were employees
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who maintained and repaired ground equipment for airlines. The undersigned noted that a
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meal-and-rest break claim alleged by workers who do not directly work for an airline, but for
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a provider of contract services to airlines, may be too tenuous, remote or peripheral to affect
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airline services. Id. at *7–8.
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The Supreme Court has stated that the Deregulation Act and the Federal Aviation
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Administration Authorization Act (FAAAA) are subject to a similar analysis because both
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contain identical preemption provisions. Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364, 368
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(2008). In the decisions analyzing FAAAA preemption, courts have held that federal law
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preempts meal-and-rest break claims. See Campbell v. Vitran Express, Inc., 2012 U.S. Dist.
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LEXIS 85509, at *9 (C.D. Cal. June 8, 2012) (Judge R. Gary Klausner); Cole v. CRST, Inc.,
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2012 U.S. Dist. LEXIS 144944, at *11 (C.D. Cal. Sept. 27, 2012) (Judge Virginia A. Phillips);
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Dilts v. Penske Logistics LLC, 819 F. Supp. 2d 1109, 1122 (S.D. Cal. Oct. 19, 2011) (Judge Janis
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L. Sammartino).
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Defendant’s argument that applying the state’s meal-and-rest break regulations would
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affect airline rates, routes, or services has merit. Most of the job duties for operations agents
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revolve around two main areas. First, operations agents handle many aspects of customer
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service such as coordinating customer boarding/deplaning; coordinating servicing lavatories,
cabin grooming, and wheelchairs for customers; ascertaining that aircrafts are properly cleaned
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For the Northern District of California
United States District Court
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and provisioned to prior to departure; and working with gate agents to collect boarding passes
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and verify boarding counts (Br. 17–18, CBA Art. 5.2). Second, operations agents handle many
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aspects of ensuring flight timeliness and safety such as transmitting required messages about
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conditions; operating stations/flight communications equipment and radio communications
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equipment; collecting weather reports for the crew; arranging to have aircraft fueled; preparing
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weight and balance computations at each station and advising dispatch, flight information, and
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stations of flight departures; and keeping other station personnel advised on flight movements,
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weather conditions, and irregular operations. Ibid. If meal-and-rest breaks were strictly applied,
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airline routes, services and costs would be affected and “the [Deregulation Act’s] purpose to
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leave largely to the airlines themselves” would be diminished. Wolens, 513 U.S. at 228.
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Plaintiff’s arguments fail. Plaintiff’s counsel, without citing the decision from which he
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copied verbatim, argues that the decisions cited by defendant do not recognize the flexibility of
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the meal-and-rest law and the employer can comply with the law by paying the employee an
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additional hour of wages. The decisions cited by plaintiff are either misquoted or inapposite.
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The holding of the majority of decisions quoted by plaintiff support Deregulation Act
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preemption of state statutes or city ordinances.
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The only persuasive decision cited by plaintiff is one in which our court of appeals held
that the Deregulation Act did not preempt California’s prevailing wage law. Californians for
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Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1189 (9th Cir. 1998).
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However, as subsequent district court decisions have pointed out, California’s prevailing wage
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law is different from the meal-and-rest law at issue because wage laws require the payment of a
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higher wage while meal-and-rest laws require off-duty breaks. See Cole v. CRST, Inc., 2012
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U.S. Dist. LEXIS 144944, at *16–17 (C.D. Cal. Sept. 27, 2012) (Judge Virginia A. Phillips);
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Esquivel v. Vistar Corp., 2012 U.S. Dist. LEXIS 26686, at *15–16 (C.D. Cal. Feb. 8, 2012)
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(Judge Jacqueline H. Nguyen); Dilts v. Penske Logistics LLC, 819 F. Supp. 2d 1109, 1121 (S.D.
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Cal. Oct. 19, 2011) (Judge Janis L. Sammartino).
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At the hearing, plaintiff’s counsel raised for the first time a decision from our court of
appeals, Ventress v. Japan Airlines, 603 F.3d 676, 681 (9th Cir. 2010), to argue that the
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For the Northern District of California
United States District Court
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Deregulation Act does not preempt certain state laws. In Ventress, our court of appeals held
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that the Deregulation Act does not preempt California Labor Code Section 1102.5(b), the state
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whistleblower-protection statute. Here, however, the statute at issue concerns meal-and-rest
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breaks under California Labor Code Section 226.7, not whistleblower protection. As illustrated
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by the Ventress decision, whistleblower claims do not inherently conflict with an airline’s
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scheduling and service. But, strict compliance with meal-and-rest breaks do impact an airline’s
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scheduling and service because it dictates when, during the course of a shift, the employee can
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go off-duty.
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To the foregoing extent only, defendant’s motion for judgment on the pleadings is,
therefore, GRANTED.
CONCLUSION
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Defendant’s motion to dismiss for lack of subject-matter jurisdiction is DENIED with
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respect to preemption of the Title VII, FEHA, and wrongful termination in violation of public
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policy claims. Defendant’s motion for judgment on the pleadings is GRANTED with respect to
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the retaliation and meal-and-rest break claims. Leave to amend is not allowed.
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IT IS SO ORDERED.
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Dated: February 12, 2013.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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