Mitchell et al v. US Airways, Inc. et al
Filing
163
Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER"For the foregoing reasons, US Airways' motion to dismiss counts five and six, ECF No. 141 , is GRANTED. Count one shall stand for trial as to the two plaintiffs eligible to maintainthat claim. See Mitchell I, 2012 WL 1512432, at *21. SO ORDERED."(Sonnenberg, Elizabeth)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BEN MITCHELL, WILMER PRESTON,
RICARDO ENGERMAN, DENNIS CASHMAN,
RAJI LAHCEN, DONALD WILLOUGHBY,
ANTHONY SMITH, STEPHEN TOUMA,
JOSEPH MATHIEU, ISAAC WILLIAMS,
KEVIN DAVIS, LEE HARDIN,
STEVEN McCOY, MICHAEL KALINOWSKI,
GERALD PEET,
Plaintiffs,
v.
US AIRWAYS, INC., PRIME FLIGHT
AVIATION SERVICES, INC.,
Defendants.
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CIVIL ACTION
NO. 08-10629-WGY
MEMORANDUM & ORDER
YOUNG, D.J.
I.
July 12, 2012
INTRODUCTION
In its recent memorandum of decision of May 1, 2012, this
Court examined the scope of preemption under the Airline
Deregulation Act and held that the skycaps’ statutory and common
law claims regarding the airlines’ methods for collecting a
newly-imposed $2.00 baggage fee at curbside check-in were
precluded.
Mitchell v. US Airways, Inc. (Mitchell I), Nos. 08-
10629-WGY, 08-10689-WGY, --- F. Supp. 2d ---, 2012 WL 1512432 (D.
Mass. May 1, 2012).
The decision disposed of Brown v. United
1
Airlines, Inc., No. 08-10689, in its entirety, and ruled on
certain dispositive motions filed in Mitchell v. US Airways,
Inc., No. 08-10629.
Mitchell I, 2012 WL 1512432, at *21.
The Court has yet to resolve two counts in Mitchell, both of
which arise out of the alleged retaliation by US Airways in
discontinuing the use of skycaps nationwide for curbside check-in
services following the filing of this putative class action.
In
count five, the skycaps allege that US Airways discontinued the
use of skycaps as retaliation for the skycaps’ lawsuit, which
retaliation constitutes tortious interference with contractual or
advantageous relations between the skycaps and the contractor
companies who employed them (G2 Secure Staff, LLC (“G2”) and
Prime Flight Aviation Services, Inc. (“Prime Flight”)).
Am. Compl. (“Compl.”) 11, ECF No. 137.
Fourth
In count six, the skycaps
allege that their termination violated a Massachusetts public
policy prohibiting retaliatory discharge.
Id.
There are two
outstanding motions to dismiss by US Airways, arguing that counts
five and six of the fourth amended complaint (the “Complaint”)
ought be dismissed for lack of standing, preemption under the
Airline Deregulation Act, preemption under the Railway Labor Act,
and statutory preemption of common law claims.
A.
Procedural History
The Court need not recite the extensive procedural history
of this case, as it did so in its prior opinion.
2
Mitchell I,
2012 WL 1512432, at *2-6.
This Court’s memorandum of decision of
May 1, 2012, granted US Airways’ motion to dismiss on counts two,
three and four of the Complaint, and denied US Airways’ motion
for summary judgment on count one as to two plaintiffs.
*21.
The skycaps voluntarily withdrew count seven.
Id. at
Id. at *21
n.22.
There are two motions to dismiss counts five and six1
presently before the Court: (1) US Airways’ motion to dismiss on
grounds of lack of standing, preemption under the Airline
Deregulation Act, and statutory preemption of common law claims,
Def. US Airways’ Partial Mot. Dismiss Pls.’ Fourth Am. Compl.,
ECF No. 141; Mem. Points Authorities Supp. US Airways’ Partial
Mot. Dismiss Fourth Am. Compl. (“Def.’s Mem.”), ECF No. 142; and
(2) US Airways’ motion to dismiss on the ground of preemption
under the Railway Labor Act, Def. US Airways’ Partial Mot.
Dismiss Pls.’ Fourth Am. Compl., ECF No. 154; Mem. Points
Authorities Supp. US Airways’ Partial Mot. Dismiss Fourth Am.
Compl., ECF No. 155.
This Court heard oral argument on the
1
All of the named plaintiffs remain in count five. See
Pls.’ Mot. Prelim. Approval Class Action Settlement Permission
Send Notices Class Members 3 n.3 (“Mot. Prelim. Approval
Settlement”), ECF No. 73. Only three plaintiffs remain in count
six: Kevin Davis, Lee Hardin, and Steven McCoy, the skycaps
employed by G2. Pursuant to a settlement in 2009 between Prime
Flight and the skycaps employed by Prime Flight, the Prime Flight
Skycaps may not bring any claims against US Airways that require
US Airways to be considered their employer or joint employer.
Mot. Prelim. Approval Settlement 2. The Prime Flight Skycaps
therefore no longer assert count six of the Complaint.
3
motions on November 16, 2011, and took the matter under
advisement.
B.
Facts As Alleged
The factual allegations of retaliation are relatively
sparse.
The skycaps allege that two months after this putative
class action was filed in April 2008, US Airways terminated the
use of skycaps nationwide for curbside check-in services,
replacing the skycaps with another class of employees.
46; Pls.’ Opp’n 7.
Compl. ¶
They allege that US Airways took such action
for an improper reason: retaliation against the skycaps for
filing this national lawsuit contesting the collection of
curbside baggage fees.
II.
Compl. ¶¶ 46-47.
ANALYSIS
A.
Standard of Review
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
To
survive a Rule 12(b)(6) motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to “state a
claim to relief that is plausible on its face.”
v. Twombly, 550 U.S. 544, 570 (2007).
Bell Atl. Corp.
A mere recital of the
legal elements supported only by conclusory statements is not
sufficient to state a cause of action.
U.S. 662, 678-79 (2009).
4
Ashcroft v. Iqbal, 556
B.
Standing
US Airways argues that the three skycaps employed by G2 (the
“G2 Skycaps”) do not have standing to assert counts five or six
because the alleged retaliation occurred in June 2008, before the
G2 Skycaps joined the putative class in September 2008.
Mem. 14-15.
Def.’s
US Airways argues that it is therefore a temporal
impossibility for US Airways to have terminated the G2 Skycaps’
services for filing this lawsuit when they were not parties to
the lawsuit at the time of the alleged retaliation.
Id. at 15.
To support this proposition, US Airways cites a handful of
cases in which a plaintiff alleges retaliation for bringing a
lawsuit, but the retaliation occurred before the plaintiff filed
its claim.
Id.; see, e.g., Baker v. American Juice, Inc., 870 F.
Supp. 878, 883 (N.D. Ind. 1994) (holding it was temporally
impossible for the employer to have terminated the plaintiff for
a retaliatory purpose where there was no evidence the plaintiff
had made any complaints to his employer, the Equal Employment
Opportunity Commission, or other governmental bodies until after
his termination).
The cases cited by US Airways are distinguishable, as they
all involve single plaintiffs who had not yet made their
grievances known to their employers - whether in court or
otherwise - at the time they were terminated.
In contrast, here,
the retaliation claims were alleged by the skycaps employed by
5
Prime Flight (the “Prime Flight Skycaps”) on behalf of a class:
US Airways skycaps nationwide.
Pls.’ Opp’n 9-10.
US Airways
subsequently terminated the entire class of skycaps and replaced
them with other employees to perform curbside baggage check-in
services.
Id.
Unlike the cases cited by US Airways, it is not
temporally impossible that US Airways terminated all skycaps
nationwide in retribution for their putative class action
lawsuit.
US Airways cannot viably argue they were not aware of
any grievances at the time of termination, as the employer did in
Baker.
Baker, 870 F. Supp. at 883.
US Airways further argues that the G2 Skycaps have not
alleged an injury-in-fact under Article III.
Def.’s Mem. 15
(“The G2 Plaintiffs cannot draw a connection between an act of US
Airways and an injury under the statutes and common law invoked
in counts five through seven.”).
To support its Article III
argument, US Airways cites Plumbers’ Union Local No. 12 Pension
Fund v. Nomura Asset Acceptance Corp., 632 F.3d 762 (1st Cir.
2011).
Plumbers’ Union is wholly inapposite to the present case.
In Plumbers’ Union, the First Circuit upheld the dismissal of
certain defendant trusts because none of the named plaintiffs had
purchased mortgage-backed securities in those trusts, and
therefore had not suffered an injury-in-fact by the trusts’
alleged fraudulent actions.
Id. at 771.
6
It is difficult to see
how Plumbers’ Union is instructive for this Court, where the
present case involves members of a putative class who were
terminated by the defendant after other lead plaintiffs brought a
lawsuit on their behalf.
This Court holds that the G2 Skycaps have alleged both an
injury-in-fact (their termination) and a causal connection (the
filing of this lawsuit), see Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992), and therefore have standing to assert
counts five and six.
C.
Preemption Under the Airline Deregulation Act
US Airways argues that counts five and six ought be
dismissed because they are preempted under the Airline
Deregulation Act to the same extent as the counts dismissed in
Mitchell I.
Def.’s Mem. 11.
The skycaps argue that employment
termination claims are not preempted by the Airline Deregulation
Act, as their relation to prices, routes, or services is too
remote.
Pls.’ Opp’n 7.
Mitchell I sets forth the relevant legal framework to
analyze whether the skycaps’ retaliation claims are preempted.
2012 WL 1512432, at *10-18.
The express preemptive language of
the Airline Deregulation Act, 49 U.S.C. § 41713(b), read together
with the saving clause, id. § 40120(c), preserves all common law
or statutory claims not related to an airline’s prices, routes,
or services.
2012 WL 1512432, at *15.
7
Therefore, the issue
confronting the Court is whether the skycaps’ claims in counts
five and six are “related to a price, route or service of an air
carrier.”
49 U.S.C. § 41713(b).
As it did in Mitchell I, the Court turns to the First
Circuit’s decision in DiFiore v. American Airlines, Inc., 646
F.3d 81 (1st Cir. 2011), for guidance.
DiFiore signaled that
certain conventional common law claims, including retaliation
claims, may fall outside the preemptive reach of the Airline
Deregulation Act.
Id. at 87.
The court referenced a set of
circuit cases declining to preempt, inter alia, retaliation
claims, and stated that “[t]hese circuit cases confirm our view
that the Supreme Court would be unlikely . . . to free airlines
from most conventional common law claims for tort, from
prevailing wage laws, and ordinary taxes applicable to other
businesses.”
Id. at 87 & n.7.
The court explained that the distinction between permissible
and preempted claims turns on whether the claim “simply
regulate[s] the employment relationship between the skycaps and
the airline,” - which claim would be permitted, even though it
may indirectly affect fares and services - or, rather, whether it
“has a direct connection to air carrier prices and services” which claim would be preempted because “related to a price, route
or service.”
Id. at 87.
This Court does not read DiFiore to create a categorical
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exemption for retaliation claims; rather, the Court understands
DiFiore to suggest a type of claim that could potentially survive
the Airline Deregulation Act preemption analysis on an
individualized basis given the appropriate factual circumstances.
It can be inferred from the circuit cases regarding retaliation
cited by the First Circuit2 and the careful language employed by
the court that such a claim would be narrow in scope and fit
within the garden variety type of retaliation claims.
2
DiFiore cites three circuit court cases, 646 F.3d at 87
n.7, all of which present conventional employment retaliation
claims:
In Gary v. Air Group, Inc., 397 F.3d 183 (3d Cir. 2005), a
pilot for a small private aircraft brought a state law
whistleblower claim when his employer terminated him after he
expressed concerns about the qualifications of his co-pilot. Id.
at 185. The court held that the pilot’s claim was akin to a
“garden variety employment claim” that was “simply too remote and
too attenuated to fall within the scope of the [Airline
Deregulation Act].” Id. at 1259-60.
In Branche v. Airtran Airways, Inc., 342 F.3d 1248 (11th
Cir. 2003), the Eleventh Circuit allowed a whistleblower claim to
proceed where an aircraft inspector was terminated after
reporting safety violations to the Federal Aviation
Administration. Id. at 1251-52, 1260. The court categorized the
inspector’s allegation as “a simple employment discrimination
claim,” and held that it was not preempted because it did not
relate to a service of an airline.
In Anderson v. American Airlines, 2 F.3d 590, 597 (5th Cir.
1993), the Fifth Circuit held that an aircraft mechanic’s
statutory retaliation claim was not preempted by the Airline
Deregulation Act where the mechanic was terminated by the airline
after filing a workers’ compensation claim. The court reserved
the question of whether a reinstatement claim would be preempted,
but summarily held that a damages claim alleging a violation of
the state workers’ compensation statute could proceed, as “[a]ny
effect that such a claim may have on [the airline’s] services is
far too remote to trigger pre-emption.” Id.
9
Herein lies the weakness in the skycaps’ argument: the
factual circumstances of this case do not present a conventional
retaliation claim where, for example, a few skycaps were fired
for raising a grievance against the airline.3
In this case,
taking the facts as alleged by the skycaps, US Airways
systemically changed the manner in which it provided a service4
(curbside baggage transportation) by replacing an entire class of
employees (the skycaps) with a different class of employees
(passenger service employees) to perform the service.
Compl. ¶
46; Pls.’ Opp’n 7.
Thus, the facts of this case remove the wrongful termination
and tortious interference claims from the class of conventional
retaliation claims impliedly preserved in DiFiore.
Extending the
First Circuit’s language in DiFiore to the present matter, the
3
In their opposition brief, the skycaps cite cases from
other circuits and argue that “[i]t is well settled that
employment termination claims are not preempted by the ADA; their
connection to airline prices, routes, or services is simply too
remote.” Pls.’ Opp’n 7. First, as discussed above, it is
unsettled in the First Circuit whether retaliation claims are
outside the scope of Airline Deregulation Act preemption.
Moreover, the cases cited by the skycaps to support this
proposition involve conventional claims for the wrongful
termination of individual employees, not an entire class of
employees. Id. at 8 (citing Ventress v. Japan Airlines, 603 F.3d
676, 681 (9th Cir. 2010) (flight engineer); Gary, 397 F.3d 183,
189-90 (3d Cir. 2005) (pilot); Parise v. Delta Airlines, Inc.,
141 F.3d 1463, 1466-67 (11th Cir. 1998) (customer service agent);
Anderson, 2 F.3d 590, 597 (5th Cir. 1993) (aircraft mechanic)).
4
DiFiore established that US Airways’ provision of curbside
baggage transportation constitutes a “service” within the meaning
of the Airline Deregulation Act. 646 F.3d at 87.
10
retaliation claims “as applied here directly regulate[] how an
airline service is performed . . . not merely how the airline
behaves as an employer.”
646 F.3d at 88.
To be clear, this Court is not holding that US Airways’
motive in replacing the skycaps with a different class of
employees was free from a punitive purpose.
no opinion on the matter.
The Court expresses
Rather, this Court holds that the
facts underlying the skycaps’ claims preclude the Court from
inquiring into US Airways’ motives because DiFiore suggests that
the wrongful termination and tortious interference claims have a
direct connection to the manner in which US Airways provides its
service of curbside baggage transportation.5
Because the Court holds counts five and six of the Complaint
to be preempted under the Airline Deregulation Act, the Court
need not address US Airways’ remaining arguments based on
preemption under the Railway Labor Act and statutory preemption
of common law claims.
III.
CONCLUSION
For the foregoing reasons, US Airways’ motion to dismiss
counts five and six, ECF No. 141, is GRANTED.
5
Count one shall
The unfortunate downside of this holding is that, in
theory, airlines could escape state law liability by ensuring
that their unlawful actions affect enough employees to trigger
preemption under the Airline Deregulation Act because those
actions are “related to” the manner in which they provide a
“service.”
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stand for trial as to the two plaintiffs eligible to maintain
that claim.
See Mitchell I, 2012 WL 1512432, at *21.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
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