Scarber v. United Airlines, Inc. et al

Filing 25

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 1/29/2016:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JEROME SCARBER,
Plaintiff,

Case No. 15 C 9147

v.

Judge Harry D. Leinenweber

UNITED AIRLINES, INC.,
TRACEY ROSE, ANNELLA SAHLI,
and JEFF SMITSEK,
Defendants.

MEMORANDUM OPINION AND ORDER
Before
(“United”),

the

Court

Tracey

is

Rose

Defendants

(“Rose”),

United

Annella

Airlines,

Sahli

Inc.

(“Sahli”),

and

Jeff Smisek’s (“Smisek”) (collectively, the “Defendants”) Motion
to Dismiss Plaintiff Jerome Scarber’s (“Scarber” or “Plaintiff”)
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and
12(b)(6) [ECF No. 10].
Defendants’

Notice

of

Scarber has also filed a response to
Removal

[ECF

construes as a Motion for Remand.

No.

19],

which

the

Court

For the reasons stated herein,

Scarber’s Motion for Remand is denied, and Defendants’ Motion to
Dismiss is granted in part and denied in part.
I.
The

Court

draws

the

BACKGROUND

following

background

information

from

Scarber’s Complaint, which was originally filed in the Circuit
Court of Cook County, Illinois.

Scarber, a 62-year-old African-American male, has served as a
flight

attendant

with

United

for

more

than

four

decades.

In

September 2014, United implemented the Early Out Benefit Plan for
Certain Association of Flight Attendant-Represented Employees (the
“Plan”), which enabled certain flight attendants to receive lump
sum payments of up to $100,000 upon their separation from the
airline.
required

To
to

participate
(1)

in

express

the
their

Plan,

flight

interest

attendants

via

bid

in

were
the

“Unimatic/CSS” (“Unimatic”) system and (2) submit a signed waiver
and release.
On

October

20,

2014,

Scarber

went

to

United’s

flight

attendant office at Chicago’s O’Hare Airport to receive assistance
enrolling in the Plan.

Scarber first met with Defendant Rose, a

United

then

supervisor,

who

another United employee.
which she then scanned.

referred

him

to

Defendant

Sahli,

Scarber gave Sahli a completed waiver,
Sahli asked Scarber for his password so

that his bid could be entered into Unimatic. When Scarber asked if
there was anything else he needed to do, Sahli told him that he
was “all set.”
The following month, Scarber learned that he would not be
receiving

a

lump

sum

payment

through

the

Plan.

When

Scarber

contacted United, the airline informed him that his bid for the
Plan was never submitted or processed.

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On September 14, 2015, after additional communications with
United, Scarber filed in state court a six-count Complaint for
breach of contract, respondeat superior, negligence and negligent
supervision, racial discrimination in violation of the Illinois
Human Rights Act (“IHRA”), and intentional infliction of emotion
distress (“IIED”).

On October 15, 2015, Defendants timely filed a

Notice of Removal pursuant to 28 U.S.C. § 1441(a).
II.

ANALYSIS

A. Motion to Remand
Defendants

argue

that

removal

is

proper

because

Scarber’s

claims are completely preempted by the Employee Retirement Income
Security

Act

of

1974

(“ERISA”),

and

the

Court

original jurisdiction under 28 U.S.C. § 1331.

therefore

has

Plaintiff contends

that ERISA does not govern the Plan because it involves a “simple
lump

sum

payment.”

(Scarber

Resp.

to

Notice

of

Removal,

ECF

No. 18, at 3.)
Under 28 U.S.C. § 1441(a), a defendant may remove a case from
state court to federal court if the federal district court would
have

original

subject

matter

jurisdiction

over

the

action.

Pursuant to 28 U.S.C. § 1331, “district courts shall have original
jurisdiction of all civil actions arising under the Constitution,
laws,

or

treaties

of

the

United

States.”

“The

party

seeking

removal has the burden of establishing federal jurisdiction, and
federal

courts

should

interpret

the

- 3 -

removal

statute

narrowly,

resolving any doubt in favor of the plaintiff’s choice of forum in
state court.”

Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d

752, 758 (7th Cir. 2009).
“Ordinarily,

determining

whether

a

particular

case

arises

under federal law turns on the ‘well-pleaded complaint’ rule.”
Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004).

However,

an exception to this rule applies “when a federal statute wholly
displaces

the

emption.”

state-law

Id.

omitted).

cause

(citation,

of

action

internal

through

quotations,

complete

and

pre-

alterations

In such cases, “a claim which comes within the scope of

that cause of action, even if pleaded in terms of state law, is in
reality based on federal law.”

Id. (citation omitted).

As the

Seventh Circuit has noted, “complete preemption” is a misnomer
“because

the

complete

preemption

doctrine

is

not

a

preemption

doctrine but rather a federal jurisdiction doctrine.” Speciale v.
Seybold, 147 F.3d 612, 615 (7th Cir. 1998) (citation and internal
quotations

omitted).

That

is,

“complete

preemption

permits

‘recharacterization’ of a plaintiff's state law claim as a federal
claim so that removal is proper.”
ERISA

was

enacted

to

Id.

“protect . . . the

interests

of

participants in employee benefit plans and their beneficiaries,”
by creating regulatory requirements for employee benefit plans and
“providing appropriate remedies, sanctions, and ready access to
the Federal courts.”

29 U.S.C. § 1001(a).
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To provide a “uniform

regulatory regime over employee benefit plans . . . ERISA includes
expansive

pre-emption

provisions . . . intended

to

ensure

that

employee benefit plan regulation would be ‘exclusively a federal
concern.’”

Davila, 542 U.S. at 208 (quoting Alessi v. Raybestos–

Manhattan, Inc., 451 U.S. 504, 523 (1981)).
ERISA’s

civil

§ 502(a)(1)(B),

enforcement

“is

one

mechanism,

of

those

internally

provisions

numbered

with

such

extraordinary pre-emptive power that it converts an ordinary state
common law complaint into one stating a federal claim for purposes
of the well-pleaded complaint rule.”
quotations

omitted).

ERISA

§

Id. (citation and internal

502(a)(1)(B)

provides

that

a

participant in an employee welfare benefit plan may bring a civil
action “to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan, or to
clarify

his

plan.”

rights

29

to

U.S.C.

future

benefits

§ 1132(a)(1)(B).

under
In

the

terms

light

of

of

the

“clear

congressional intent to make the ERISA remedy exclusive,” “any
state-law

cause

of

action

that

duplicates,

supplements,

or

supplants the ERISA civil enforcement remedy” is preempted, and
thus removable.

Davila, 542 U.S. at 209.

To determine whether a claim falls within § 502(a)(1)(B) of
ERISA, courts examine whether the plaintiff could have brought his
claim under § 502(a)(1)(B) and whether the defendant’s actions
implicate a legal duty that is separate or independent from those
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created by ERISA.

Davila, 542 U.S. at 209.

“Under the first

prong of Davila’s two-part test . . . the Seventh Circuit has held
that

plan

participants

may

not

bring

their plans to recover plan benefits.”

state-law

claims

against

Segerberg v. Pipe Fitters’

Welfare Fund, Local 597, 918 F.Supp.2d 780, 784 (N.D. Ill. 2013)
(citing McDonald v. Household Int’l, Inc., 425 F.3d 424, 429 (7th
Cir. 2005)).

“Under the second prong . . . a court must determine

whether interpretation of the terms of the benefit plan forms an
essential part of the plaintiff’s state law claim.”

Id. (citing

Davila, 542 U.S. at 213).
It appears from Scarber’s response to the notice of removal
that the only contested issue is whether the Plan is actually
governed by federal law.

Defendants contend that the Plan is an

“employee welfare benefit plan,” governed by ERISA, pointing out
that the Plan states that it “shall be interpreted under ERISA.”
(Plan, ECF No. 12-1, at 10 ¶ 18.)
ERISA defines an “employee welfare benefit plan” as:
any plan, fund, or program which was heretofore or is
hereafter established or maintained by an employer
. . . to the extent that such plan, fund, or program was
established or is maintained for the purpose of
providing for its participants or their beneficiaries,
through the purchase of insurance or otherwise, (A) . .
. benefits in the event of . . . unemployment . . . or
(B) any benefit described in section 186(c) of this
title. . . .
29 U.S.C. § 1002(1).
include

“pooled

The benefits described in 29 U.S.C. § 186(c)

vacation,

holiday,
- 6 -

[and]

severance

or

similar

benefits.”

Accordingly,

“severance
Severance

benefit
Pay

the
are

plans

Trust

Fund

Seventh
employee

v.

Local

Circuit

has

benefit

Union

held

that

plans.”

No.

18-U,

UIU
United

Steelworkers of Am., 998 F.2d 509, 510 (7th Cir. 1993) (citing
Young

v.

Standard

Oil

(Ind.),

849

F.2d

1039,

1045

(7th

Cir.

1988)).
Scarber argues that the Plan is not governed by ERISA because
it involves a “lump sum payment, with no administrative scheme,”
making it analogous to the plan described in Fort Halifax Packing
Co. v. Coyne, 482 U.S. 1 (1987).

In Fort Halifax, the Supreme

Court held that ERISA did not preempt a state statue requiring a
one-time severance payment in the event of a plant closing.
Halifax, 482 U.S. at 12.

Fort

The Court reasoned that the statute

merely required a “one time lump-sum payment triggered by a single
event,”

and

“no

administrative

employer’s obligation.”
Defendants

identify

scheme

whatsoever

to

meet

the

distinguish

the

Id.
several

features

that

Plan at issue here from the one described in Fort Halifax. First,
the Plan includes administrative procedures to determine claimant
eligibility and vests the plan administrator with discretion to
“limit participation and determine exit dates.” (Plan, ECF No. 121, at 1–3, ¶¶ 3–5.)

Second, the Plan provides a review procedure

in the event a claimant is denied benefits. (Id. at 8 ¶ 15.)
Third, a payment amount cannot be calculated until a claimant’s
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exit

date

provides

is
for

determined.
additional

(Id.

at

benefits

3

¶

6.)

Finally,

beyond

the

lump

sum

including continued health benefits and travel passes.
5 ¶ 6.)
setting

the

Plan

payment,

(Id. at 3–

Together, these features require ongoing administration,
the

Plan

apart

scheme in Fort Halifax.

from

the

comparatively

straightforward

The Court therefore concludes that the

Plan — in which United provides employees with severance benefits
upon their separation from the airline — is am employee benefit
plan subject to ERISA.
Scarber alleges that he is a United employee who is eligible
to receive benefits under the Plan.

In Count I, Scarber claims

“[t]hat Defendants (i.e., specifically, United) has not abided by
its offer for an Enhanced Early Out Program as to Plaintiff, even
though Plaintiff clearly met the requirements to enroll in said
Enhanced Early Out Program,” and seeks to recover the $100,000
lump sum payment to which he claims entitlement under the Plan.
(Compl., ECF No. 1-1, at 10 ¶¶ 38–39.)

The Court finds this to be

precisely the kind of claim for benefits that ERISA contemplates.
Moreover, Count I “derives entirely from the particular rights and
obligations” established by the Plan, and does not implicate any
independent legal duty. Davila, 542 U.S. at 213.

Accordingly, the

Court finds that Count I is completely preempted by ERISA, and
therefore

removal

is

proper.

- 8 -

The

Court

has

supplemental

jurisdiction over Scarber’s remaining state-law claims.

See, 28

U.S.C. § 1367(a).
B.

Motion to Dismiss

Having concluded that removal is proper, the Court now turns
to Defendants’ Motion to Dismiss.

Defendants’ Motion to Dismiss

is premised on ERISA’s express preemption provision, internally
numbered § 514(a), which provides that ERISA “shall supersede any
and all State laws insofar as they may now or hereafter relate to
any employee benefit plan described in section 1003(a) of this
title and not exempt under section 1003(b) of this title.”

29

U.S.C. § 1144(a).
Under ERISA § 514(a), “[a] law relates to an employee benefit
plan . . . if it has a connection with or reference to such a
plan.”

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139 (1990)

(citation and internal quotations omitted).

“Under this broad

common-sense meaning, a state law may relate to a benefit plan,
and thereby be pre-empted, even if the law is not specifically
designed to affect such plans, or the effect is only indirect.”
Id.

(citation

§ 514(a)

will

and

internal

not

preempt

quotations
a

claim

omitted).

that

does

However,

not

interpretation or application of a Plan’s provisions.

ERISA

require

any

See, Trs.

of AFTRA Health Fund v. Biondi, 303 F.3d 765, 780 (7th Cir. 2002);
accord Conn. Gen. Life Ins. Co. v. Grand Ave. Surgical Ctr., Ltd.,
No. 13 C 4331, 2014 WL 151755, at *5 (N.D. Ill. Jan. 14, 2014)
- 9 -

(“Where

a

court

can

resolve

the

merits

of

a

claim

without

interpreting or applying the terms of any ERISA-regulated health
plan, ERISA § 514(a) does not preempt the claim.”).
Defendants contend that all of Scarber’s claims “relate to”
the Plan, and are therefore preempted.

Scarber’s primary response

to this argument is that the Plan is not governed by ERISA, and
that his Complaint “clearly cites only Illinois law and requests
state law remedies.”

(Scarber Resp., ECF No. 18, at 5–6.) The

Court finds these arguments unavailing, however. For the reasons
stated above, the Plan is governed by ERISA, and Scarber cannot
avoid ERISA’s expansive preemption provisions by referencing only
Illinois law in his Complaint.
Turning to the allegations of the Complaint, the Court finds
that the first three claims “relate to” the Plan and its terms,
such

as

the

sections

covering

eligibility

and

participation.

Defendants note that Counts I through III, for breach of contract
and respondeat superior, request that “Plaintiff be entered into
the Enhanced Early Out Program and receive his lump sum payment of
$100,000.”

(Compl., ECF No. 1-1, ¶¶ 39–41.)

Whether Plaintiff is

entitled to this relief depends on the terms of the Plan and
therefore “relates to” it.
Counts

IV

through

VI,

in

contrast,

interpretation of the Plan’s provisions.

do

not

require

Count IV, for negligence

and negligent supervision, states that United was negligent in
- 10 -

training

and

supervising

employees

“to

specifically

[Scarber] in the Enhanced Early Out Program.”
Count

V,

“properly

for

race

enrolled

discrimination,
in

the

Enhanced

states
Early

enroll

(Id. at 12 ¶ 42.)
that

Out

Plaintiff

Program,”

was

but

if

Defendants believed that he was not, they should have permitted
him to amend his application, as they had allowed white flight
attendants to do.
states

that

(Id. at 13 ¶ 28.)

Defendants

engaged

Finally, Count VI, for IIED,

in

“egregious

and

outrageous

behavior” by denying Scarber payment, while allowing white flight
attendants to enroll in the Plan.
each

of

Defendants

these
were

claims

clearly

negligent

in

(Id. at 14 ¶ 33.)
references

processing

the

bids,

or

Plan,

Although
whether

discriminated

against Scarber by not allowing him to amend his application, does
not depend on the terms of the Plan itself. The Court therefore
concludes that these claims do not “relate to” the Plan.
Nevertheless, Counts V and VI fail for independent reasons.
As

Defendants

correctly

point

out,

Scarber

administrative remedies under the IHRA.

failed

to

exhaust

“Under Illinois law, the

comprehensive scheme of remedies and administrative procedures of
the IHRA is the exclusive source of redress for alleged violations
of the act.”

Jimenez v. Thompson Steel Co., 264 F. Supp. 2d 693,

695 (N.D. Ill. 2003).

Although the IHRA was amended in 2008 to

grant original jurisdiction over IHRA claims to both the Illinois
Human

Rights

Commission

and

Illinois
- 11 -

circuit

courts,

the

IHRA

still requires a complainant to initially file a charge with the
Illinois Department of Human Rights within 180 days of an alleged
civil rights violation.

775 ILCS 5/7A-102(A); accord O’Connell v.

Cont’l Elec. Const. Co., No. 11 C 2291, 2011 WL 4916464, at *11
(N.D. Ill. Oct. 17, 2011).

Because Scarber has failed to allege

that he has complied with the administrative procedures of the
IHRA, the Court dismisses Count V without prejudice.
Furthermore,

the

IHRA

preempts

tort

claims

that

are

so

“inextricably linked to a civil rights violation . . . that there
is

no

independent

itself.”

basis

for

the

action

apart

from

the

[IHRA]

Maksimovic v. Tsogalis, 687 N.E.2d 21, 23 (Ill. 1997).

In his response brief, Scarber directs the Court’s attention to an
email in which a United employee stated that Scarber had never
provided Sahli with his password — a lie that he claims triggered
his emotional distress.
this alleged lie.

However, the Complaint does not mention

Instead, Scarber asserts that the cause of his

emotional distress was the fact that United denied him payment,
but

allowed

requirements

white
of

employees

the

Enhanced

“who

initially

Early

Out

did

not

Program .

follow

. . to

the

amend

their initial improper enrollment.” (Compl., ECF No. 1-1, at 14
¶ 33.)

Based on this allegation, the Court finds that Scarber’s

IIED claim is “inextricably linked” to the discrimination alleged
in his IHRA claim.

The Court therefore finds that Count VI is

preempted by the IHRA and dismisses the claim without prejudice.
- 12 -

For these reasons, Defendants’ Motion to Dismiss is granted
in part and denied in part.

Scarber is granted twenty-one (21)

days leave to replead Count I as an ERISA claim, and may proceed
on the negligence claim alleged in Count IV.

See, Kaden v. First

Commonwealth Ins. Co., No. 05 C 2212, 2005 WL 2656381, at *3 (N.D.
Ill. Oct. 14, 2005) (“The very reasons that dictated denial of the
remand motion also indicate that plaintiff may well be entitled to
state a claim under ERISA.

Whether he wishes to pursue an ERISA

remedy is within his province to decide.”)

Counts II, III, V, and

VI are dismissed without prejudice.
III.

CONCLUSION

For the reasons stated herein, Scarber’s Motion for Remand
[ECF

No.

19]

is

denied.

Defendants’

Motion

No. 10] is granted in part and denied in part.

to

Dismiss

[ECF

Scarber is granted

leave to file an Amended Complaint within twenty-one (21) days of
the date of this Memorandum Opinion and Order.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: January 29, 2016

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