FLASHMAN v. JET AVIATION FLIGHT SERVICES, INC.

Filing 23

OPINION and ORDER denying 7 Motion to Dismiss; that this matter is remanded New Jersey Superior Court, Law Division, Bergen County; that the Clerk of the Court mark this case CLOSED.. Signed by Judge Faith S. Hochberg on 10/1/14. (jd, )

NOT FOR PUBLICATION

CLOSED

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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BERNARD FLASHMAN,
Plaintiff,
v.
JET AVIATION FLIGHT SERVICES, INC.,
Defendant.

Civil Case No. 14-1287
(FSH)(JBC)
OPINION & ORDER
October 1, 2014

HOCHBERG, District Judge:
This matter comes before the Court upon Defendant Jet Aviation Flight Services, Inc.’s
motion to dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Dkt. No. 7). The Court has reviewed the submissions of the parties and considers the motion
pursuant to Federal Rule of Civil Procedure 78.

I.

BACKGROUND

Plaintiff Bernard Flashman’s January 15, 2014, Complaint contains a single count: a
purported violation of the New Jersey Conscientious Employee Protection Act (“CEPA”),
N.J.S.A. 34:19-1. Plaintiff claims that Defendant Jet Aviation—a private flight service—
unlawfully terminated Plaintiff’s employment as Director of Operations, allegedly in retaliation
for his objections to Defendant’s air-safety compliance. Jet Aviation removed the case to this
Court from the Superior Court of New Jersey, Law Division, Bergen County. Defendant asserts

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that the Complaint implicates air carrier “services” under the Airline Deregulation Act and is,
therefore, preempted by federal law.
Plaintiff Flashman worked as Director of Operations for Defendant from September 2009
to June 2012. The Director of Operations is responsible for monitoring regulatory compliance
and reporting violations to the Federal Aviation Administration (“FAA”), the federal agency
responsible for aviation safety. Plaintiff claims that he was terminated from his position based on
his objection to Jet Aviation’s alleged failure to follow a required chain-of-command.
Specifically, Plaintiff contends that the FAA mandates that the “Chief Pilot” for an air carrier
report to the “Director of Operations.” (Compl. ¶ 16). Jet Aviation allegedly disregarded the
authority of the Director of Operations—Plaintiff—over the Chief Pilot, (Compl. ¶¶ 33-35), and
at times required Plaintiff to report to the Chief Pilot, purportedly in violation of the FAA
handbook. (Compl. ¶¶ 16, 17, 36). Plaintiff filed a “Safety Report addressing the conflict of
authority,” (Compl. ¶ 36), and informed the FAA of the alleged organizational structure
violations, (Compl. ¶¶ 27, 28).1 In May 2011, the FAA purportedly informed Plaintiff that the
“organizational structure had to be addressed as a matter of regulatory compliance,” a concern
that Plaintiff then communicated to Jet Aviation’s management. (Compl. ¶ 28).
In one incident, Plaintiff alleges that Jet Aviation instructed the Chief Pilot to release a
purportedly “unsafe” flight, which then “experienced a safety related event” requiring “a ‘self
disclosure’ to the FAA.” (Compl. ¶ 30). Plaintiff contends that Jet Aviation circumvented
Plaintiff’s authority and “release[d] the illegal and unsafe flight, knowing that Flashman would
The Court notes, without deciding the issue, that Plaintiff’s attempt to make this dispute over
Plaintiff’s personal managerial authority fit within CEPA based on a clause in an FAA handbook
is a thin read of the statute. But the Court lacks subject matter jurisdiction to decide whether this
Complaint involves merely internal business practices rather than a clear mandate of public
policy.
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not have authorized it.” (Compl. ¶ 31). During Plaintiff’s investigation of this unidentified
“safety related event” Plaintiff contends that Jet Aviation concealed information important to
Plaintiff’s investigation. (Compl. ¶¶ 32, 34).
On June 21, 2012, Jet Aviation terminated Plaintiff’s employment. (Compl. ¶ 39).
Plaintiff alleges that Jet Aviation “unlawfully terminat[ed] Plaintiff’s employment in retaliation
for his conduct in attempting to discharge his federally required job functions as Director of
Operations” and for “communications with the FAA.” (Compl. ¶¶ 40, 42, 50).

II.

STANDARD OF REVIEW

“To survive a 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.’” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (“[S]tating . . . a claim requires
a complaint with enough factual matter (taken as true) to suggest the required element. This
does not impose a probability requirement at the pleading stage, but instead simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary element.”) (internal quotations omitted).
When considering a motion to dismiss under Iqbal, the Court must conduct a two-part
analysis. “First, the factual and legal elements of a claim should be separated. The District
Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal
conclusions. Second, a District Court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a plausible claim for relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal citations and quotations

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omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Iqbal, 129 S. Ct. at 1949 (internal quotations and
alterations omitted).

III. DISCUSSION
The only dispute is whether the Airline Deregulation Act (“ADA”) expressly preempts
Plaintiff’s state law whistleblower claim, particularly whether Plaintiff’s objection to Jet
Aviation’s back-office chain-of-command has “too peripheral” a connection to an air carrier’s
“point-to-point transportation” of passengers.2

a. Express Preemption Of State Law Claims Under the ADA
“Congress enacted the ADA in 1978 to prevent the states from re-regulating airline
operations so that competitive market forces could function.” Gary v. The Air Grp., Inc., 397
F.3d 183, 186 (3d Cir. 2005) (citations omitted). The Act includes a preemption clause: “a State
. . . may not enact or enforce a law, regulation, or other provision having the force and effect of

Defendant’s only preemption argument is that “the ADA’s express provision preempt[s]
[Plaintiff’s] state law claim.” (Def.’s Reply Mem. 2). In a footnote, Defendant references
implied preemption: “Jet Aviation reserves all rights . . . to argue implied preemption . . . on
appeal.” (Def.’s Mem. of Law in Supp. of its Mot. to Dismiss 3 n.2). But Defendant has failed to
make any argument or provide any analysis that the ADA or the Whistleblower Protection
Program impliedly preempts Plaintiff’s claim, and has, therefore, waived any such argument. See
Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 398
(3d Cir.1994) (“[A] passing reference to an issue . . . will not suffice to bring that issue before
this court.”) (internal quotation marks omitted); Curtis v. Treloar, Civ. No. 96-1239, 1998 WL
1110448, at *9 (D.N.J. Aug. 27, 1998) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.”) (quoting
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)), aff’d, 189 F.3d 463 (3d Cir. 1999).
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law related to a price, route, or service of an air carrier that may provide air transportation.” 49
U.S.C. § 41713(b)(1). Only air carrier “services” are at issue in this case. “Services” include, at
the very least, the “prices, schedules, origins and destinations of the point-to-point transportation
of passengers, cargo, or mail.” Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 193
(3d Cir. 1998) (approving of the Ninth Circuit’s definition of “services” in Charas v. Trans
World Airlines, Inc., 160 F.3d 1259, 1261 (9th Cir. 1998) (en banc)). The only “service”
Defendant contends is implicated by Plaintiff’s Complaint is “the point-to-point transportation of
Jet Aviation.” (Def.’s Mem. 5). There is no dispute that “point-to-point transportation” is a
“service” within the meaning of the ADA.
In the context of state law whistleblower claims—where an employee alleges retaliation
for reporting an employer’s illegal act—a claim is expressly preempted only if it “relates to” an
air carrier’s “prices, routes, or services.” See Gary, 397 F.3d at 189; Ventress v. Japan Airlines,
603 F.3d 676, 683 (9th Cir. 2010); Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1262-63
(11th Cir. 2003). “[T]he key phrase ‘related to’ expresses a broad pre-emptive purpose. . . a
claim relates to rates, routes, or services, within the meaning of the ADA, if the claim has a
connection with, or reference to, airline rates, routes, or services.” Nw., Inc. v. Ginsberg, 134 S.
Ct. 1422, 1428 (2014) (internal quotation marks omitted). “The requisite connection exists either
where ‘the law expressly references the air carrier’s prices, routes or services, or has a forbidden
significant effect upon the same.’” Gary, 397 F.3d at 187 (quoting United Parcel Serv., Inc. v.
Flores-Galarza, 318 F.3d 323, 335 (1st Cir. 2003)). “[S]uch pre-emption may occur even if a
state law’s effect on rates, routes, or services is only indirect.” Rowe v. New Hampshire Motor
Transport Ass’n, 552 U.S. 364, 370 (2008) (internal quotation marks omitted). But state law is
not preempted if the claim has a connection to flight services that is “too tenuous, remote, or

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peripheral a manner to have pre-emptive effect.” Morales Trans World Airlines, Inc., 504 U.S.
374, 390 (1992) (internal citations omitted); see, e.g., Anderson v. Am. Airlines, Inc., 2 F.3d 590,
597 (5th Cir. 1993) (finding claim based on an airline’s alleged retaliation against a mechanic for
filing a workers’ compensation action was not preempted because “[a]ny effect that such a claim
may have on American’s services is far too remote to trigger pre-emption.”). Here, the sole issue
is whether Plaintiff’s claim of retaliation for objecting to Defendant’s organizational structure
and reporting it to the FAA has a “forbidden significant effect” upon an air-carrier’s “point-topoint transportation,” or whether the connection to this service is “too tenuous, remote, or
peripheral.”
In Gary, the Third Circuit considered whether a plaintiff’s CEPA claim for wrongful
termination—purportedly based on his objection to his co-worker’s lack of FAA-required flight
experience—was too tenuously related to air carrier services within the meaning of the ADA.
There, the connection between plaintiff’s objection to his co-worker’s qualifications and pointto-point transportation was “simply too remote and too attenuated,” Gary, 397 F.3d at 189, and
thus “cannot be deemed to be related to the ‘service of an air carrier,’”id. at 189 n.6. Instead,
“Gary’s actions [were] more properly viewed as comparable to a garden variety employment
claim . . . .” Id. The Court found that the plaintiff’s claims “did not interrupt any scheduled
flights, nor did they have the potential to ground any scheduled flights,” and therefore, “the
relation of Gary’s whistleblower report to ‘service’ is even more attenuated . . . .” 397 F.3d at
189.

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b. Whether Plaintiff’s Objection Or Report Had A “Significant Effect” On “Services”
Defendant argues that Plaintiff’s objection to Jet Aviation’s organizational structure
would have required suspending its service. The Complaint claims the FAA handbook mandates
that the Director of Operations have authority over the Chief Pilot, but at Jet Aviation
management allegedly interfered such that Plaintiff did not have authority over the Chief Pilot.
(Compl. ¶¶ 16, 17, 36). After Plaintiff objected to this practice and reported it to the FAA,
Defendant allegedly terminated Plaintiff’s employment. Defendant argues that, “[h]ad Jet
Aviation acceded to Plaintiff’s claims, Defendant would have been forced to cease operations
until its reporting and organizational structure came into compliance.” (Def.’s Mem. 4-5). But
Defendant does not explain how enforcing this particular chain-of-command would have
grounded any flight, let alone “forced [Jet Aviation] to cease operations.” On this record, the
Court cannot conclude that halting the alleged interference or changing the back-office reporting
lines would have resulted in flight delays or cancelations. See Ulysse v. AAR Aircraft Component
Servs., 841 F. Supp. 2d 659, 674 (E.D.N.Y. 2012) (“[Plaintiff’s objection] to the suitability of
certain aircraft replacement parts[] would not necessarily result in the disruption of flight
services. . . [T]he Court [cannot] conclude that there were any delays resulting from the
Plaintiff’s complaints to supervisors that affected air services, or even that the Plaintiff refused to
fix certain plane parts which could, in theory, affect air services.”).
Moreover, there has been no argument that Plaintiff’s actions in fact caused delays; that
Plaintiff threatened to shut down operations; or that Plaintiff’s objections grounded flights.3

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Indeed, Plaintiff continued to perform his responsibilities. (Compl.¶¶ 32, 34, 35). Defendant
notes that Plaintiff “objected to and refused to participate in activities or practices which he
reasonably believed to be incompatible with a clear statement of public policy concerning the
public health, safety or welfare.” (Compl. ¶ 49). But these “activities or practices” are never

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Instead, Plaintiff objected, post hoc, to Defendant’s chain-of-command: after Defendant
purportedly circumvented Plaintiff, he objected, (Compl. ¶ 33); after a subordinate allegedly
assigned Plaintiff projects, Plaintiff claims he filed a “Safety Report,” (Compl. ¶ 36); and after a
regional manager purportedly contacted the FAA without Plaintiff’s approval, he objected,
(Compl. ¶ 38). Plaintiff reported these alleged violations to the FAA, for which he contends he
was terminated. Where an employee reports an alleged violation in a manner that does not
interrupt flight services, Courts have found the connection to services to be too tenuous.
Gervasio v. Continental Airlines, Inc., Civ. No. 07-5530, 2008 WL 2938047, at *3 (D.N.J. July
29, 2008) (finding no preemption of CEPA claim where member of the ground crew was
terminated after reporting a breach of the passenger security checkpoint); see also Espinosa v.
Continental Airlines, 80 F. Supp. 2d 297, 301 (D.N.J. 2000) (finding that, where aircraft
technician was terminated after objecting to defendant’s use of an aircraft with alleged
mechanical problems and reporting the use to the FAA, “it is not reasonable to believe that a
retaliatory discharge claim is in any way ‘related to’ air carrier services”); see also Branche v.
Airtran Airways, Inc., 342 F.3d 1248, 1257 (11th Cir. 2003) (finding airline mechanic’s
wrongful discharge claim, allegedly based on his post hoc reporting of the airline’s improper
testing of an engine to the FAA, was not preempted because it did not “relate in any meaningful
way to the transportation of passengers from one location to another.”).
Unlike the case here, in several cases that Defendant relies upon, the employee’s
objection either actually grounded flights or had real potential to impact a flight, thus having a
forbidden “significant effect” upon services. See Botz v. Omni Air Int’l, 286 F.3d 488, 494-95

identified and, in any event, his purported refusal to participate in an activity is not linked to a
disruption of air carrier “services.”

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(8th Cir. 2002) (finding that there was a forbidden “significant effect” upon point-to-point
transportation where: the whistle-blower law included “broad authorization to flight attendants to
refuse assignments”; the plaintiff objected and “refused a flight assignment”; and “a significant
likelihood exist[ed] that the carrier will have to cancel the flight . . . when the flight attendant
refuses the assignment within a few hours of the flight’s scheduled departure.”); Cunningham v.
Jet Aviation Flight Servs., Inc., Civ. No. 12-6594, 2013 WL 1758617, at *3-4 (D.N.J. Apr. 24,
2013) (where plaintiff pilot operated air carrier for a single client, her objection to the number of
days off and length of rest periods “directly impact[ed] her availability to provide the flight
services that the client demanded. . . . [T]he inability to contact a pilot for a duty assignment is
tantamount to that pilot’s refusal to fly, . . .”); Simonds v. Pan Am. Airlines, Inc., Civ. No. 03-11,
2003 WL 22251155, at *2, *6 (D.N.H. Sept. 30, 2003) (finding that, where commercial pilot told
his superior that he “would not fly the aircraft” on a particular flight because of purported FAA
violations, plaintiff’s conduct “created a real threat to Pan Am’s ability to provide service to its
customers (by threatening to ground the plane).”); Miller v. Raytheon Aircraft Co., 229 S.W.3d
358, 375 (Tex. App. 2007). (“Unlike a post hoc report of a violation as in Branche, or a refusal to
perform an illegal act unrelated to actual air flight, [plaintiff pilot’s] claim,” based on his
termination for his refusal to fly on aircraft with alleged mechanical problems, “directly
impinges on the provision of air carrier services.”). But as this Court held in Cunningham,
“where an air carrier employee’s complaints do not affect the employee’s availability to work
particular days and no particular flight is disrupted, the connection to the air carrier’s service is
‘simply too remote and too attenuated to fall within the scope of the ADA.’” Civ. No. 12-6594,
2013 WL 1758617, at *4 (quoting Gary, 397 F.3d at 189); see also Branche, 342 F.3d at 1263
(“Had Branche claimed that Airtran fired him in retaliation for refusing to allow a plane to take

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off due to safety concerns, this would present a situation closer” to a significant effect upon
point-to-point transportation).
Defendant next argues that Plaintiff’s claim has a forbidden effect on point-to-point
transportation because he had the ability to ground flights and identified a particular flight he
would have grounded. Defendant points to Plaintiff’s allegation that “JAFS upper management
directed [the Chief Pilot] to release the illegal and unsafe flight, knowing that Flashman would
not have authorized it.” (Compl. ¶ 31). Relying on this allegation, Defendant concludes that,
“[h]ad Jet Aviation responded to Plaintiff’s concerns and given him the authority he believes was
federally mandated, he would not have allowed that scheduled flight to operate, thereby affecting
service.” (Def.’s Mem. 5). But this purportedly “unsafe” flight does not form the basis of
Plaintiff’s cause of action. Plaintiff does not plead any details of the flight, such as the date of the
occurrence or how the flight was “unsafe.” He does not allege he was unlawfully terminated
based on this flight; nor does he claim that he was fired for reporting this flight to the FAA; nor
did he interrupt the service of this flight—Plaintiff was purportedly unaware of its occurrence
until the “Chief Pilot [brought] the matter to Plaintiff’s attention.” (Compl. ¶ 32). See Ventress,
603 F.3d at 683 (“Although [plaintiff] alleges he told the ill pilot that he would pull himself off
future flights if the pilot did not stop flying, he does not allege that he was fired in retaliation for
that threat . . . .”). As the Complaint makes clear, Plaintiff alleges a CEPA violation based on
Defendant’s purported retaliation for reporting Jet Aviation’s organizational structure to the FAA
in July 2011. (See Compl. ¶¶ 1, 41-42). Jet Aviation’s alleged release of the “unsafe” flight is not
the basis for Plaintiff’s claim, rather it is purported evidence of Plaintiff’s objection: that Jet
Aviation’s management circumvented the authority of the Director of Operations. Defendant’s
counterfactual scenario—that, if Defendant had conformed to the FAA requirements, Plaintiff

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had been given the authority he requested, and Plaintiff had known of the purportedly “unsafe”
flight, then “he would have grounded that scheduled flight,” (Def.’s Reply Br. 6)—is precisely
the type of connection that is too tenuously related to “services” to require preemption. See
Gervasio, Civ. No. 07-5530, 2008 WL 2938047, at *3; Espinosa, 80 F. Supp. 2d at 301. As in
Gary, Plaintiff’s “actions are more properly viewed as comparable to a garden variety
employment claim.” 397 F.3d at 189.
Accordingly, Plaintiff’s alleged termination based on his report to the FAA regarding Jet
Aviation’s back-office organizational structure does not have a “forbidden significant effect” on
services because its connection to the transportation of passengers is simply too tenuous. See
Branche, 342 F.3d at 1259; Ventress v. Japan Airlines, 603 F.3d 676, 683 (9th Cir. 2010)
(“[R]eported safety violations six months after they occurred and after completion of the
scheduled flights . . . did not interrupt ‘service.’”); James v. Evergreen Int’l Airlines, Inc., Civ.
No. 07-1640, 2008 WL 2564804, at *4 (D. Or. June 23, 2008) (finding connection to services
was tenuous when plaintiff’s “wrongful discharge claim . . . [was] based on retaliation that
occurred after [plaintiff’s] complaints about being tired and about potential FAA violations”).
Because Plaintiff’s state law CEPA claim is not preempted, there is no independent
ground for jurisdiction, and this matter is remanded to New Jersey Superior Court, Law Division,
Bergen County.

IV. CONCLUSION & ORDER
For the reasons stated above,
IT IS on this 1st day of October, 2014,

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ORDERED that Jet Aviation’s motion to dismiss (Dkt. Nos. 7) is DENIED; and it is
further
ORDERED that this matter is remanded New Jersey Superior Court, Law Division,
Bergen County; and it is further
ORDERED that the Clerk of the Court mark this case CLOSED.

IT IS SO ORDERED.
/s/ Hon. Faith S. Hochberg
Hon. Faith S. Hochberg, U.S.D.J.

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