Hays v. Spirit Airlines, Incorporated et al

Filing 10

OPINION AND ORDER GRANTING DEFENDANT SPIRIT AIRLINES' FED. R. CIV. P. 12(b)(6) 3 MOTION TO DISMISS AND DISMISSING PLAINTIFF'S 1 COMPLAINT, IN ITS ENTIRETY. Signed by District Judge Gerald E. Rosen. (Loury, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CARI HAYS,
Plaintiff,

No. 13-cv-11478
Hon. Gerald E. Rosen

vs.
SPIRIT AIRLINES, INC., a foreign
corporation, GREGORY MANNY, in his
corporate and individual capacities, BRIAN
DAVIS, in his corporate and individual
capacities, MICHAEL ANDERSON, in his
corporate and individual capacities, TONY
LEFEVBRE, in his corporate and individual
capacities, and KIM ARCHAMBEAU, in her
corporate and individual capacities,
Defendants.
_________________________________________/

OPINION AND ORDER GRANTING DEFENDANT SPIRIT AIRLINES’
FED. R. CIV. P. 12(b)(6) MOTION TO DISMISS AND DISMISSING
PLAINTIFF’S COMPLAINT, IN ITS ENTIRETY
I. INTRODUCTION
Plaintiff Cari Hays commenced this wrongful discharge/retaliation action against
her former employer, Spirit Airlines, and several Spirit Airlines supervisory employees1
in Wayne County Circuit Court. In her two-count Complaint, Plaintiff alleges that in
terminating her employment, Defendants violated Michigan public policy and the
Michigan Elliott-Larsen Civil Rights Act. Spirit Airlines timely removed the action to
this court on diversity grounds and, and thereafter moved to dismiss Plaintiff’s Complaint
None of the individual defendants have been served with process and the time for doing
so has expired.

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pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be
granted. Plaintiff filed a response to Defendant’s motion and Defendant has replied.
Having reviewed and considered the parties’ briefs and the entire record of this
action, the Court has determined that oral argument would not aid in the decisional
process. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), the
Court will decide this matter “on the briefs.” This Opinion and Order sets forth the
Court’s ruling.
II. PERTINENT FACTS
Plaintiff Cari Hays is a former employee of Spirit Airlines, Inc. (“Spirit”) who
worked in Spirit’s Detroit Metropolitan Airport operations department. Ms. Hays began
her employment with Spirit in 1999 as a part-time employee. Shortly thereafter, she was
promoted to a full-time position. She was subsequently promoted several times to the
positions of Lead Agent, Supervisor, and Customer Service Manager. In 2008, she was
promoted to the position of General Manager of Airport Operations.
Plaintiff claims that at the beginning of 2010, she became concerned with “staffing
shortages” at Spirit’s Metro Detroit operations, which she claims “caused flight delays”
and “resulted in numerous safety issues and violations of state and/or federal laws.” [See
Complaint, ¶¶ 19-20.] According to Plaintiff, when she reported her concerns to her
immediate supervisors, Defendants Gregory Manny and Brian Davis, they acknowledged
that Spirit’s Metro Detroit operations were understaffed. Id. at ¶ 22. She further claims
that Manny and Davis acknowledged that the understaffing of Spirit’s Metro Detroit
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operations was causing unsafe flight and working conditions. Id. at ¶ 23. Plaintiff states
that she “repeatedly requested from Defendants that they provide her with the necessary
staffing so that she could run the Metro Detroit operations in a safe manner and in
compliance with state and federal laws,” id. at ¶ 25, but Spirit failed to provide her with
the requested staffing. Id. at ¶ 26. Plaintiff alleges that thereafter she continued to object
and refused to be complicit in what she believed to be Spirit’s unlawful directives to
manage the operations in violation of the law. Id. at ¶ 27.
In June 2010, Plaintiff was issued what she calls a “bogus” performance write-up,
after which she continued to voice her objections and maintained her repeated requests to
Defendants that they provide her with the necessary staffing so that she could run Spirit’s
Metro Detroit operations in a safe manner. Id. at ¶ 29. Plaintiff further alleges that
around November 2010, Defendant Michael Anderson, the airline’s Director of Safety,
became aware of staffing shortages and unsafe/unlawful working conditions through
communications with Plaintiff and Spirit pilots, but Anderson also failed to take any
action. Id. at ¶¶ 33-34.
Plaintiff further alleges that in July 2010, she complained to Kim Archambeau,
Spirit’s Director of Inflight Services, about “safety issues and violations of law,” as well
as her concerns about unfair and allegedly unlawful “favoritism” that existed due to
personal relationships between members of Spirit Senior Management and other Spirit
employees. Id. at ¶ 46. At the time she reported her concerns to Archambeau, Ms. Hays

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also believed that Defendant Archambeau herself was involved in a personal relationship
with Defendant Tony Lefevbre, Spirit’s Vice President of Customer Service. Id. at ¶ 47.
Ms. Hays’s employment with Spirit Airlines was terminated on November 23,
2010. Hays claims that she was terminated in retaliation for her objections to perceived
safety violations and for refusing to follow the directives of her supervisors that she
believed to be in violation of the law. She also asserts that she was retaliated against, in
part, for opposing violations of the Elliott-Larsen Civil Rights Act.
III. MOTION TO DISMISS STANDARD
Defendant seeks dismissal of Plaintiff’s entire complaint pursuant to Fed. R. Civ.
P. 12(b)(6) contending that Plaintiff’s claim for wrongful discharge is expressly
preempted by the Airline Deregulation Act of 1978, 49 U.S.C. § 41713(b)(1), and even if
Plaintiff’s claim is not deemed to be preempted, her Complaint fails to state a claim upon
which relief may be granted.
Fed. R. Civ. P. 12(b)(6) authorizes the court to dismiss a complaint if it “fail[s] to
state a claim upon which relief can be granted. . . .” In deciding a motion brought under
Rule 12(b)(6), the court must construe the complaint in the light most favorable to the
plaintiff and accept all well-pleaded factual allegations as true. League of United Latin
American Citizens v. Bredesen, 500 F.3d 523,527 (6th Cir. 2007). Yet, “the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009).
Moreover, “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
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need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct 1955, 1964-65 (2007) (internal quotation marks, alteration, and
citations omitted). Rather, to withstand a motion to dismiss, the complaint’s factual
allegations, accepted as true, “must be enough to raise a right to relief above the
speculative level,” and to “state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 555, 570, 127 S. Ct at 1965, 1974. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949. The
plausibility standard, however, “asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent
with’ a defendant’ liability, it ‘stops short of the line between possibility and plausibility
of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
Applying the foregoing standards, the Court concludes that Defendant’s Motion to
Dismiss in this case should be granted.

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IV. DISCUSSION
A.

PREEMPTION UNDER THE ADA
In 1978, Congress enacted the Airline Deregulation Act (the “ADA”) to deregulate

the airline industry so as to promote “maximum reliance on competitive market forces,”
as well as “to provide efficiency, innovation, and low prices; and to decide on the variety
and quality of, and determine prices for, air transportation services.” Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 378 (1992). Congress included in the Act an express
preemption provision: “A State…may not enact or enforce a law, regulation, or other
provision having the force and effect of law related to a price, route, or service of an air
carrier that may provide air transportation.” 49 U.S.C. § 41713(b)(1). This preemption
provision was included in the Act to “ensure that the States would not undo federal
deregulation with regulation of their own.” Morales, 504 U.S at 378. See also American
Airlines v. Wolens, 513 U.S. 219, 115 S.Ct. 817 (1995).
In Morales, the Supreme Court construed the words “relating to” contained in the
preemption clause as “express[ing] a broad pre-emptive purpose.” Morales, 504 U.S. at
383. To be “related to” under the ADA’s preemption provision, a state law must simply
have “a connection with, or reference to, airline ‘rates, routes, or services.’” Id. at 384.
At the same time, however, the Court also warned that some state actions may affect
airlines in “too tenuous, remote, or peripheral a manner to be preempted.” Id. at 390.
The scope of the preemption provision has been the subject of debate in the federal
courts, particularly with respect to state law labor-related claims. The conflict in the
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circuits primarily relates to the interpretation of the word “service” within the preemption
provision. Compare, e.g., Air Transp. Ass’n of Am. v. Cuomo, 520 F.3d 218, 222 (2d
Cir.2008) (per curiam) (defining “service” for purposes of the preemption clause to
“encompass[ ] matters such as boarding procedures, baggage handling, and food and
drink—matters incidental to and distinct from the actual transportation of passengers”),
with Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1261 (9th Cir.1998) (en banc)
(defining “service” as “the prices, schedules, origins and destinations of the point-topoint transportation of passengers, cargo, or mail” but not “an airline’s provision of inflight beverages, personal assistance to passengers, the handling of luggage, and similar
amenities”). See also Gary v. Air Group, Inc., 397 F.3d 183 (3d Cir. 2005) (holding that
the ADA did not preempt a former copilot’s state-law claims arising out of reports to his
superiors of potential safety violations because he reported the safety violations before
flights were scheduled and therefore could not have interrupted “service”); Branche v.
Airtran Airways, Inc., 342 F.3d 1248 (11th Cir. 2003) (holding that the ADA did not
preempt the plaintiff’s retaliatory discharge claim based on his reporting of airline safety
violation because plaintiff’s claim was fundamentally an employment discrimination
claim that did not implicate any arena in which airlines competed, and, as such, did not
“relate to service of air carrier”).
Defendant in the instant action seeks to dismiss Plaintiff’s wrongful discharge
claim on the basis of federal preemption under the ADA, arguing that her complaints
with respect to Spirit’s understaffing “clearly relate[] to Spirit’s services,” and therefore,
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are, preempted. However, there is insufficient factual predicate in the parties’ pleadings
for the Court to make a determination of the preemption issue. As the above-cited cases
demonstrate, more than a generalized allegation of “understaffing” is needed to determine
whether the complaints Plaintiff’s claim of discharge in violation of public policy is
predicated sufficiently relate to Spirit’s “services” or whether they would affect the
airline in a too tenuous or peripheral manner to warrant preemption.
However, the Court need not resolve the preemption issue at this time as it finds,
for the reasons that follow, that neither of the claims alleged in Plaintiff’s Complaint
states a cognizable claim upon which relief may be granted.
B.

PLAINTIFF’S MICHIGAN PUBLIC POLICY CLAIM
In Count I of her Complaint, Plaintiff alleges that she “was discharged for her

objections to and refusal to violate the law in the course of her employment,” and
“[a]ccordingly, [her] discharge was in violation of public policy.” [Complaint, ¶¶ 37-38.]
Michigan courts have provided as a general rule that “where there exists a statute
explicitly proscribing a particular adverse employment action, that statute is the exclusive
remedy, and no other public policy claim for wrongful discharge can be maintained.”
Kimmelman v. Heather Downs Mgmt. Ltd., 278 Mich. App. 569, 573, 753 N.W.2d 265,
268 (2008). Therefore, “[a] public policy claim is sustainable… only where there is not
an applicable statutory prohibition against discharge in retaliation for the conduct at
issue.” Dudewicz v. Norris-Schmid, Inc., 443 Mich. 68, 80, 503 N.W.2d 645, 650 (1993)
disapproved on other grounds by Brown v. Mayor of Detroit, 478 Mich. 589, 734 N.W.2d
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514 (2007). Here, both state and federal law provide an applicable statutory prohibition
against discharge in retaliation for the conduct upon which Plaintiff’s Count I is
predicated.
In 1999, Congress amended the Airline Deregulation Act to add the Whistleblower
Protection Program (the “WPP”). 49 U.S.C. § 42121. The WPP makes available a cause
of action for employees who have been terminated for providing their “employer or the
Federal Government information relating to any violation or alleged violation of any
order, regulation, or standard of the Federal Aviation Administration or any other
provision of Federal law relating to air carrier safety… or any other law of the United
States.” 49 U.S.C. § 42121(a)(1). The statutory form of relief provided by the WPP is
clearly intended to address exactly the harm of which Plaintiff complains in this action.
See e.g., Botz v. Omni Air International, 286 F.3d 1248 (8th Cir. 2002) (holding that the
WPP was the plaintiff’s exclusive remedy for her claim that she was terminated for
refusing to accept a flight assignment that she believed violated federal airline safety
regulations and for reporting the alleged violation to her employer); Tucker v .Hamilton
Sundstrand Corp., 268 F. Supp. 2d 1360 (S.D. Fla. 2003) (holding that the WPP provided
the plaintiff’s exclusive remedy for his claim that he was terminated for complaining that
his employer did not have proper written procedures for certain operations that impacted
air safety and could result in an interruption of the service of an aircraft).
In addition to the Federal WPP, Michigan’s Whistleblower Protection Act (the
“WPA”) makes it unlawful for an employer to “discharge, threaten, or otherwise
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discriminate against an employee … because the employee, or a person acting on behalf
of the employee, reports or is about to report, verbally or in writing, a violation or a
suspected violation of a law or regulation or rule promulgated pursuant to law of this
state, a political subdivision of this state, or the United States…” M.C.L. § 15.362. As
such, the WPA “is designed to protect employees who report suspected wrongdoing by
their employer to a higher authority from retaliatory discharge.” Dickenson v. Oakland
University, 171 Mich. App. 68, 429 N.W.2d 640 (1988). Therefore, this provision
arguably also provides Plaintiff with a form of relief for the alleged retaliation by Spirit
Airlines.
Because the ADA’s Whistleblower Protection Program and Michigan’s
Whistleblower Protection Act afford Plaintiff a remedy for the actions of which she
complains, her Count I common law claim of retaliatory discharge in violation of public
policy must be dismissed as a matter of law.
C.

PLAINTIFF’S RETALIATION CLAIM UNDER MICHIGAN’S ELLIOTTLARSEN CIVIL RIGHTS ACT
In Count II, Plaintiff alleges a claim of retaliation under the Michigan Elliott-

Larsen Civil Rights Act (the “ELCRA”). The ELCRA prohibits discrimination based
upon religion, race, color, national origin, age, sex, height, weight and marital status.
M.C.L. § 37.2202(1), and also prohibits retaliation or discrimination “against a person
because the person has opposed a violation of this act, or because the person has made a

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charge, filed a complaint, testified, assisted, or participated in an investigation,
proceeding, or hearing under the act.” M.C.L. § 37.2701(a).
To establish retaliation under the ELCRA, the plaintiff must establish: (1) that she
opposed violations of the ELCRA or participated in activities protected by the act, and
(2) that the opposition or participation was a “significant factor” in the adverse
employment decision. Booker v Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310
(6th Cir. 1989). For the protected activity engaged in by a plaintiff to be considered a
“significant factor,” the plaintiff must show that it was one of the reasons motivating the
adverse treatment. See Polk v Yellow Freight Systems, Inc., 876 F.2d 527, 531 (6th Cir.
1989). The mere fact that adverse treatment follows the employee’s protected act,
however, is in and of itself insufficient to establish retaliation under the ELCRA. Booker,
supra at 1314.
Plaintiff’s ELCRA retaliation claim in this case is predicated on her July 2010
complaint to Spirit’s Director of Inflight Services Kim Archambeau about personal
relationships and favoritism resulting therefrom that existed in the workforce. She claims
that her termination four months later was due, in part, to her opposition to conduct that
she perceived to violate the ELCRA. To withstand dismissal under Iqbal and Twombly,
however, Plaintiff had to have pled facts that would make such an allegation plausible.
Here, Plaintiff merely states, in a conclusory fashion, that she made complaints of “sexual
harassment, hostile work environment, and unfair treatment.” She provides no factual
background supporting any alleged wrongdoing committed by Spirit management other
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than her accusation that “personal relationships” and “favoritism” resulting therefrom
existed in the workplace. She has alleged no facts that would show that such “personal
relationships” or “favoritism” amounted to sexual harassment, created a hostile work
environment, or otherwise demonstrated prohibited discrimination under the ELCRA.
In her Response Brief, Plaintiff argues that reporting what she believed was
unlawful favoritism due to the personal relationships between certain managerial and
lower level staff members is sufficient to give rise to retaliation claim under the ELCRA.
In support, she relies upon a California state court decision construing California law.
She cites no Michigan state or federal decisions in support of her contention. This is not
surprising as Michigan courts have repeatedly held that favoritism based on personal
relationships – which is all that Plaintiff here alleges to have complained of – is not
covered under the Elliott-Larsen Act. See e.g., Barrett v. Kirtland Comm. College, 245
Mich. App. 306, 319, 628 N.W.2d 63 (2001) (the ELCRA only covers conduct “requiring
an employee to submit to sexually based harassment as a condition of employment or
discrimination based on gender, not discrimination based on sexual affiliations or
relationships.” Id. (emphasis added)); see also Corley v. Detroit Bd. Of Educ.¸470 Mich.
274, 279, 681 N.W.2d 342 (2004) (“actionable sexual harassment requires conduct or
communication that inherently pertains to sex.”)
Furthermore, Plaintiff merely summarily concludes that a causal connection exists
between her complaint about personal relationships and her termination, but offers no
facts in support of this claim; the four-month time span between the time Plaintiff
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allegedly made her complaint about the personal relationships and the termination of her
employment in and of itself, is insufficient to establish the requisite causal nexus. See
Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000). Thus, her ELCRA
retaliation claim in Count II must also be dismissed.
D.

AMENDMENT WOULD BE FUTILE
Although it is this Court’s general practice to provide a plaintiff with an

opportunity to amend his or her complaint when faced with a dismissal that is readily
curable because slight defects should not condemn an otherwise viable complaint, this
practice need not be followed here because amendment of Plaintiff’s Complaint would be
futile. See, e.g., Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420-21 (6th Cir.
2000). It would be futile to grant leave for Plaintiff to amend to add a claim under the
Michigan Whistleblower’s Protection Act or the Federal WPP, as such a claim would be
time-barred. A complaint alleging a violation of the WPA must be filed “within 90 days
after the occurrence of the alleged violation of th[e] act.” M.C.L. § 15.363(1).
Similarly, adding a claim under the Federal WPP would be futile as it, likewise, would be
time-barred. Though the Federal WPP does not contain a separate statute of limitations,
the Supreme Court has directed that when that is the case, courts are to “apply the most
closely analogous statute of limitations under state law.” See DelCostello v. Teamsters,
462 U.S. 151, 158, 103 S.Ct. 2281, 2287 (1983); Agency Holding Corp. v. Malley-Duff &
Associates, Inc., 483 U.S. 143, 147, 107 S.Ct. 2759, 2762 (1987) (noting that the Rules of
Decision Act usually requires that a state statute be borrowed, and also that “[g]iven our
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longstanding practice of borrowing state law, and the congressional awareness of this
practice, we can generally assume that Congress intends by its silence that we borrow
state law”). As Michigan’s WPA is the most analagous statute, its 90-day period of
limitations would also govern a Federal WPP claim.
Moreover, although Plaintiff submitted a lengthy response to Defendant’s motion,
she only cursorily requested that, in lieu of dismissal, the Court permit her to amend her
complaint; she did not hint at any additional facts she would incorporate in an amended
complaint that would cure her deficiencies. Accordingly, this Court declines to provide
Plaintiff with an opportunity to amend. See, e.g., Lewis v. Wheatley, 528 F. App’x 466,
469-70 (6th Cir. 2013) (amendment is futile when, among other things, a plaintiff does
not “provide[] any additional factual allegations that [she] would submit in an amended
complaint”).
E.

THE CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS ARE
DISMISSED FOR FAILURE TO PROSECUTE
Plaintiff was issued summonses for service of process upon the individual

defendants when she filed her complaint in state court on March 6, 2013 but she never
served any of the individual defendants before those summonses expired on June 5, 2013.
Therefore, on June 5, 2013, with the concurrence of the only served defendant, Spirit
Airlines, Inc., Plaintiff sought and obtained from this Court an order for the issuance of
new summonses for the individual defendants. However, yet again, Plaintiff failed to
serve the individual defendants and the federal summonses have now also expired.
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Plaintiff having failed to serve any of the individual defendants after having been
afforded more than eight months to do so, Plaintiff’s claims against the individual
defendants will be dismissed pursuant to Fed. R. Civ. P. 4(m) and 41, and Eastern District
of Michigan Local Rule 41.2 for failure to prosecute.
CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss is GRANTED,
and Plaintiff’s claims against Defendant Spirit Airlines, Inc. are hereby DISMISSED,
with prejudice.
IT IS FURTHER ORDERED that, pursuant to Fed. R. Civ. P. 4(m) and 41, and
Eastern District of Michigan Local Rule 41.2, Plaintiff’ claims against individual
Defendants Gregory Manny, Brian Davis, Michael Anderson, Tony Lefevbre, and Kim
Archambeau are DISMISSED for failure to prosecute.
Let Judgment be entered accordingly.

Dated: January 22, 2014

s/Gerald E. Rosen
GERALD E. ROSEN
CHIEF, U.S. DISTRICT COURT

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, January 22, 2014, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, 313-234-5135

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