United States District Court, D. Alaska
ORDER RE MOTION TO DISMISS
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 8 is Defendant Alaska Airlines,
Inc.'s Motion to Dismiss. Plaintiff Ka West opposed at
Docket 14. Alaska Airlines replied at Docket 18. Oral
argument was held on August 23, 2018, at Anchorage, Alaska
before Judge Sharon L. Gleason.[1]
BACKGROUND
Alaska
Airlines employed Ms. West as a customer service agent
beginning in January 2007.[2] The terms and conditions of Ms.
West's employment were governed by a Collective
Bargaining Agreement (“CBA”) negotiated by Ms.
West's union, the International Association of Machinists
and Aerospace Workers, pursuant to the federal Railway Labor
Act (“RLA”).[3] The CBA contains disciplinary
procedures for employees and grievance procedures for review
of disciplinary decisions and terminations.[4] It also includes
provisions related to vacation and sick leave.[5] The CBA
incorporates Alaska Airlines' system regulations and
gives the company the right to change these provisions at any
time so long as they are not inconsistent with the
CBA.[6]
The system regulations include an “attendance
reliability” program and additional policies and
procedures related to employee leave, including Family and
Medical Leave Act (“FMLA”) leave.[7] The CBA also
establishes a three-step grievance procedure for review of
employee terminations.[8]The first two steps are hearings between
Alaska Airlines and the terminated employee, conducted by a
representative of Alaska Airlines.[9] If the grievance is not
resolved through either of the first two steps, the
employee's union can elect to submit the grievance for
binding arbitration before the System Board of Adjustment, a
body consisting of a union member, an Alaska Airlines
representative, and a neutral third member.[10]
Ms.
West's Complaint alleges as follows:
In
2012, Ms. West was diagnosed with
endometriosis.[11] As a result of this condition, she
underwent surgery in January 2013.[12] Ms. West took
approximately one month of FMLA leave following the surgery;
when she returned, she went on light duty.[13]
In July
2015, Ms. West began experiencing “intermittent, severe
pain” in her left ovary.[14] On February 5, 2016, Ms. West
asked her supervisor for an accommodation for when she
experienced these symptoms. Specifically, she asked leave to
“take off a few days or a month as needed, take regular
breaks when her symptoms flared up, and avoid lifting heavy
objects.”[15] Ms. West alleges that Alaska Airlines
“repeatedly refused” to make reasonable
accommodations.[16] She also alleges that Alaska Airlines
“failed to engage in the interactive process” and
“continued to counsel her on taking time off”
despite the fact that she had significant unused
leave.[17]
Ms.
West applied for FMLA leave for her symptoms on March 2,
2016, but that request was denied on or about March 17,
2016.[18] She re-applied that same day; she
applied again in September 2016.[19] On May 18, 2016, Ms.
West's endometriosis symptoms caused her to leave work
early.[20] Alaska Airlines approved Ms. West's
FMLA request for the May 18, 2016 leave in October
2016.[21] However, Ms. West's Complaint
alleges that Alaska Airlines “refused to change the
leave taken on May 18, 2016, to FMLA leave even though it was
eventually approved as FMLA leave.”[22]
On
January 31, 2017, Alaska Airlines terminated Ms. West's
employment.[23] A Notice of Discipline or Discharge
completed by the airline indicated that the termination was
based on “unsatisfactory
attendance.”[24] The document listed five absences during
the preceding year, one of which was the May 18, 2016
absence. Ms. West alleges that she had taken leave on one day
to attend a funeral and that her supervisor told her the
leave would be approved.[25] She acknowledges that she “had
a couple of minor instances when she reported to work on-time
but forgot her badge not allowing her to clock in on-time,
” but alleges that “she was terminated for taking
leave when her symptoms flared up and for applying for and
requesting that she be given leave under
FMLA.”[26]
Ms.
West filed a grievance through her union challenging the
termination.[27] The first two steps of the grievance
process-the initial and secondary hearings before an Alaska
Airlines representative-took place in February and April
2017.[28] Alaska Airlines' representative
denied the grievance at each hearing. Ms. West's union
informed her that it declined to submit the grievance for
binding arbitration before the System Board of
Adjustment.[29]
In
approximately September 2017, Ms. West filed a charge of
employment discrimination with the Equal Employment
Opportunity Commission (“EEOC”).[30] Alaska
Airlines received a “Notice of Charge of
Discrimination” from the EEOC, which stated that
“[a] perfected charge (EEOC Form 5) will be mailed to
you once it has been received from the Charging
Party.”[31] But Alaska Airlines never received a
perfected charge.[32] On January 25, 2018, the EEOC sent Ms.
West and Alaska Airlines a “Dismissal and Notice of
Rights” indicating that it had investigated Ms.
West's charge but was unable to conclude that Alaska
Airlines had violated the Americans With Disabilities Act As
Amended (“ADAAA”).[33] The EEOC then closed its file
on the charge and issued a right to sue notice to Ms. West
under the ADAAA.[34]
On
April 23, 2018, Ms. West initiated this action.[35] The Complaint
alleges two federal causes of action: (1) retaliation and
interference in violation of the FMLA (Count I); and (2)
discrimination in violation of the ADAAA (Count II). Ms. West
also alleges the following causes of action under Alaska law:
(1) discrimination based on disability in violation of AS
18.80.220(a)(1) (Count III); (2) disparate treatment because
of disability in violation of AS 18.80.220 (Count IV); (3)
breach of the duty to engage in the interactive process and
provide reasonable accommodation of a disability in violation
of AS 18.80.220 (Count V); (4) breach of the implied covenant
of good faith and fair dealing (Count VI); and (5) the
intentional infliction of emotional distress.[36]
On June
21, 2018, Alaska Airlines filed the instant Motion to
Dismiss.[37]
LEGAL
STANDARD
I.
Jurisdiction and Applicable Law
The
Court has jurisdiction pursuant to 28 U.S.C. § 1331
because this is a civil action with certain claims arising
under federal law, 29 U.S.C. § 201, et seq. The
Court has supplemental jurisdiction over Plaintiff's
related state law claims.[38]
The
Court applies federal procedural law; Alaska substantive law
applies to the state law claims.[39] Whether federal law
preempts a state law claim is a question of federal
law.[40]
II.
Standard for Dismissal
A
defendant may seek dismissal of an action for lack of subject
matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). When such a motion is made, the plaintiff has the
burden of proving jurisdiction.[41] If the defendant raises a
factual challenge to the court's jurisdiction, as opposed
to a facial challenge based solely on the allegations in the
complaint, a court may consider matters outside the pleadings
in ruling on the motion.[42]“‘[N]o presumptive
truthfulness attaches to plaintiff's allegations, and the
existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of
jurisdictional claims.'”[43] Here, Alaska Airlines
submitted additional materials with its motion to
dismiss.[44]
Alaska
Airlines also seeks dismissal under Rule 12(b)(6) for failure
to state a claim. “To survive a motion to dismiss
[under Rule 12(b)(6)], a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its
face.'”[45]Iqbal does not require a
litigant to prove her case in her pleading, but it requires
the litigant to “state ‘enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of
[the misconduct alleged].'”[46] The pleading
must contain “enough facts to state a claim to relief
that is plausible on its face.”[47]
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”[48] When reviewing a Rule 12(b)(6) motion, a
court considers only the pleadings and documents incorporated
into the pleadings by reference, as well as matters on which
a court may take judicial notice.[49] A court “accept[s]
factual allegations in the complaint as true and construe[s]
the pleadings in the light most favorable to the nonmoving
party.”[50] This inquiry requires a court to
“draw on its judicial experience and common
sense.”[51] When a motion to dismiss for failure to
state a claim is granted, a court “should freely give
leave when justice so requires.”[52] But leave to
amend is properly denied as to those claims for which
amendment would be futile.[53]
DISCUSSION
Alaska
Airlines advances four arguments in its motion to dismiss,
which the Court considers in the following order: First,
Alaska Airlines contends that the Court lacks subject matter
jurisdiction over Ms. West's ADAAA claims because she
failed to timely exhaust her administrative remedies through
the EEOC. Second, it contends that the RLA preempts or
precludes jurisdiction over each of Ms. West's claims.
Third, it contends that Ms. West did not submit her claims to
binding arbitration as required by the CBA. Fourth, it
contends in the alternative that Ms. West has not alleged
sufficient facts to support her disparate treatment and
intentional infliction of emotional distress
claims.[54]
1.
Failure to Exhaust Administrative Remedies
Alaska
Airlines contends that Ms. West's ADAAA claims should be
dismissed because she did not file a perfected charge of
discrimination with the EEOC prior to filing
suit.[55] Ms. West responds that she filed a
charge with the EEOC, then received a right to sue letter
from the EEOC and timely filed suit thereafter.[56] She does not
assert that she filed a verified charge with the
EEOC.[57]
“Plaintiffs
bringing employment discrimination charges under the ADA must
comply with the procedural requirements set forth in Title
VII of the Civil Rights Act of 1964, as amended, at 42 U.S.C.
§ 2000e-5.”[58] One procedural requirement is that
before filing suit, the claimant has filed a
“charge” with the EEOC, which “shall be in
writing under oath or affirmation and shall contain such
information and be in such form as the Commission
requires.”[59] EEOC regulations authorize plaintiffs to
amend their charges “to cure technical defects or
omissions, including failure to verify the charge[s], ”
and provide that such amendments “will relate back to
the date the charge was first received.”[60]
Several
circuits have concluded that the verified charge requirement
for EEOC claims is mandatory and cannot be
excused.[61] But other circuit courts have concluded
that the requirement “is not a jurisdictional
prerequisite for suit.”[62] In those circuits, the
verified charge requirement may be “subject to waiver
as well as tolling when equity so
requires.”[63]
Ms.
West contends that “[w]hether [she] actually perfected
the charge is harmless error and should not be grounds for
dismissal of this charge.”[64] Ms. West cites
Wrighten v. Metro. Hosps., Inc. for the proposition
that “[g]enerally, the exhaustion requirement is
satisfied when the plaintiff receives a right-to-sue notice
from the EEOC.”[65] In Wrighten, the Ninth
Circuit concluded that the subsequent issuance of a
right-to-sue letter cured any jurisdictional
defects.[66] However, there is no indication that the
Wrighten plaintiffs failed to file verified charges
with the EEOC.[67] Citing EEOC v. Airguide Corp.,
Ms. West also argues that because Alaska Airlines
“received notice and EEOC issued a right to sue letter
to both parties, ” the lack of a verified charge did
not result in any prejudice.[68] But in Airguide, the
Fifth Circuit noted that the EEOC made “every attempt
to comply with the conditions precedent to
suit.”[69] In contrast, Ms. West provides no
explanation for her failure to file a verified charge.
Lastly, Ms. West contends that the purpose of a verified
charge “is not to provide notice to the
employer.”[70] She cites no cases in support of this
assertion, and other courts have concluded that verification
does serve a notice purpose.[71]
In
Buck v. Hampton Township School District, an
employer who participated in EEOC proceedings despite not
receiving a verified charge subsequently raised the
employee's failure to verify as a bar to judicial
proceedings.[72] The court concluded that where “an
employer has actual notice of a discrimination charge and
chooses to respond to the merits of the claim before the EEOC
without asserting lack of verification as a defense it waives
its right to secure dismissal of the federal court
proceedings on that basis.”[73] Here, however, Alaska
Airlines did not respond to the merits of Ms. West's
claim before the EEOC at any time prior to the initiation of
the suit.[74]
Ms.
West failed to exhaust her administrative remedies and has
articulated no reason for failing to exhaust her
administrative remedies that would justify waiving the
verified claim to the EEOC requirement. Therefore, her ADAAA
claims will be dismissed with prejudice.[75]
2.
Preemption and Preclusion Under the Railway Labor
Act
Alaska
Airlines contends that Ms. West's federal law claims are
precluded by the RLA, 45 U.S.C. §§ 151-65, 181-88.
It further contends that her state law claims are preempted
by the RLA.[76] While “[t]he preemption doctrine
per se does not govern questions relating to the
compatibility of two or more federal laws, ” courts
have applied the same analysis in determining whether a
federal claim is precluded and whether a state claim is
preempted by the RLA.[77]
“Whether
federal law pre-empts a state law establishing a cause of
action is a question of congressional
intent.”[78] Congress passed the RLA “to
promote stability in labor-management relations by providing
a comprehensive framework for resolving labor
disputes.[79] To that end, “the RLA establishes
a mandatory arbitral mechanism for ‘the prompt and
orderly settlement' of two classes of disputes” -
“major” and “minor”
disputes.[80] Major disputes involve “the
formation of collective [bargaining] agreements or efforts to
secure them.”[81] Minor disputes involve “the
interpretation or application of agreements covering rates of
pay, rules, or working conditions.”[82] The RLA
requires that minor disputes be “addressed through the
CBA's established grievance mechanism, and then, if
necessary, arbitrated before the appropriate adjustment
board.”[83] Accordingly, “[t]o the extent
state law would . . . create a cause of action for a minor
dispute, and thereby ‘permit[] an individual to
sidestep available grievance procedures, '” state
law is preempted.[84]
After
the parties submitted their briefing, the Ninth Circuit
decided Alaska Airlines, Inc. v. Schurke en
banc.[85] In Schurke, the Ninth Circuit
explained the two-part inquiry used to determine whether a
claim is preempted or precluded by the RLA.[86] First, the
Court must “evaluate the ‘legal character' of
the claim by asking whether it seeks purely to vindicate a
right or duty created by the CBA itself.”[87]
If a claim arises entirely from a right or duty of the CBA -
for example, a claim for violation of the labor agreement,
whether sounding in contract or in tort - it is, in effect, a
CBA dispute in state law garb, and is preempted. In such
cases, the CBA is the “only source” of the right
the plaintiff seeks to vindicate. . . . By contrast, claims
are not simply CBA disputes by another name, and so are not
preempted under this first step, if they just refer to a
CBA-defined right; rely in part on a CBA's terms of
employment; run parallel to a CBA violation; or invite use of
the CBA as a defense.[88]
Second,
if the claim is not preempted by the first step, a court must
ask “whether litigating the state law claim nonetheless
requires interpretation of a CBA, such that resolving the
entire claim in court threatens the proper role of grievance
and arbitration.”[89]
“Interpretation” is construed narrowly; “it
means something more than ‘consider,' ‘refer
to,' or ‘apply.'” Accordingly, at this
second step of an RLA or LMRA § 301 preemption analysis,
claims are only preempted to the extent there is an active
dispute over “the meaning of contract terms.”
“[A] hypothetical connection between the claim
and the terms of the CBA is not enough to preempt the claim .
. . .” Nor is it enough that resolving the state law
claim requires a court to refer to the CBA and apply its
plain or undisputed language - for example, “to discern
that none of its terms is reasonably in dispute”; to
identify “bargained-for wage rates in computing [a]
penalty”; or “to determine whether [the CBA]
contains a clear and unmistakable waiver of state law
rights.”[90]
In sum,
“for each of [Ms. West's] claims, [the Court] must
determine whether the claim arises from the CBA[] and, if
not, whether establishing the elements of the claim will
require interpretation of the CBA[].”[91]
A.
FMLA Claims (Count I)
Ms.
West contends that Alaska Airlines violated the Family
Medical Leave Act (“FMLA”).[92] “Courts
have recognized two theories for recovery on FMLA claims
under § 2615, the retaliation . . . theory and the . . .
interference theory.”[93] The parties agree that Ms.
West's Complaint implicates both types of FMLA
claims.[94] To establish a prima facie case of
retaliation, Ms. West must show that (1) she availed herself
of a protected right under the FMLA; (2) she was adversely
affected by an employment decision; and (3) there is a causal
connection between the two actions.[95] To establish a prima
facie case of interference, Ms. West must show that (1) she
was eligible for the FMLA's protections, (2) her employer
was covered by the FMLA, (3) she was entitled to leave under
the FMLA, (4) she provided sufficient notice of her intent to
take leave, and (5) her employer denied her FMLA benefits to
which she was entitled.[96]
Alaska
Airlines does not contend that Ms. West's claims
“arise entirely from a right or duty of the CBA”
- step one of the test described in
Schurke.[97] It argues, however, that preclusion is
warranted because Ms. West cannot establish each element of
her prima facie cases without “interpretation of the
CBA.”[98]
The few
courts that have addressed whether the RLA precludes an FMLA
retaliation claim concluded that it does not. In Staunch
v. Continental Airlines, Inc., the Northern District of
Ohio concluded that an FMLA retaliation claim is “not a
contractual right embedded in the [CBA]” and can be
resolved “through a federal statute and without any
reference to the [CBA].”[99] Similarly, in South v.
GoJet Airlines, LLC, the Southern District of Iowa held
that a plaintiff's FMLA retaliation claim “merely
require[d] a reference to the CBA, not an interpretation of
the CBA.”[100]
Two
United States Supreme Court decisions address claims similar
to Ms. West's FMLA retaliation claim. In Lingle v.
Norge Division of Magic Chef, a terminated employee
alleged that her termination constituted retaliatory
discharge under Illinois law.[101] Her employer replied that
the claim was preempted pursuant to the LMRA. The Supreme
Court rejected this argument. It first noted that to
establish a prima facie case of retaliatory discharge under
Illinois law, the plaintiff would have to show that (1) she
was discharged or threatened with discharge and (2) the
employer's motive in discharging or threatening to
discharge her was to deter her from exercising her statutory
rights or to interfere with her exercise of those
rights.[102] The Court held that both elements
implicated “purely factual questions pertain[ing] to
the conduct of the employee and the conduct and motivation of
the employer, ” neither of which would “require[]
a court to interpret any term of a collective-bargaining
agreement.”[103] Furthermore, any inquiry into a
proffered nonretaliatory reason for the discharge would be
“purely factual” and would “not turn on the
meaning of any provision of a [CBA].”[104]
Accordingly, the Supreme Court concluded that the LMRA did
not preempt the state law claim.[105] Similarly, in
Hawaiian Airlines, Inc. v. Norris, the Supreme Court
rejected an employer's argument that a suit alleging
retaliatory discharge because of whistleblower activities was
preempted by the RLA.[106]The employer argued that the
plaintiff's claim would require a determination whether
the termination was justified by the plaintiff's failure
to sign a maintenance record as required by the CBA. Citing
Lingle, the Supreme Court concluded that any such
determination would “require only a purely factual
inquiry into any retaliatory motive of the
employer.”[107]
Here,
Alaska Airlines contends that because it argues Ms. West was
terminated for attendance issues, “[t]he Court cannot
properly evaluate Alaska Airlines' legitimate
non-retaliatory reasons for the termination . . . without
interpreting attendance requirements, employee leave rights
and obligations, and progressive discipline, as well as past
practices and interpretation of the relevant
policies.”[108] Like the defendant in Hawaiian
Airlines, Alaska Airlines proffers a non-retaliatory
motive for Ms. West's termination, and maintains that the
evaluation of that motive will implicate the
CBA.[109]However, there is no indication, at
least at this stage of the proceeding, that an inquiry into
Alaska Airlines' motive would “turn on the meaning
of any provision” of the CBA.[110]Ms. West does not
allege that Alaska Airlines misapplied the CBA, but that its
decision to terminate her was retaliatory. It appears that
whether Alaska Airlines' proffered reason for terminating
Ms. West differed from its actual reason for doing so is a
“purely factual question” that would “not
require a court to interpret any term of the [CBA], ”
and is therefore not precluded by the RLA.[111]
Whether
Ms. West's interference claim is precluded presents a
closer question.[112]Alaska Airlines contends that
“[t]o establish her FMLA interference claim, Ms. West
will have to prove-by reference to and interpretation of the
CBA-that her early departure complied with Alaska
Airlines' notification and procedural requirements for
such absences. Because Ms. West would have to show that she
was entitled to leave under the FMLA and provided sufficient
notice pursuant to the CBA of her intent to take leave, it
seems likely that the Court would need to consult provisions
of the CBA in order to evaluate Ms. West's claim.
Critically, however, Alaska Airlines has not identified an
“active dispute over ‘the meaning of contract
terms.'”[113] To conclude that a claim is precluded
under the RLA, a court must do more than identify provisions
of a CBA that may be relevant to litigation of the claim.
Here, at the motion to dismiss stage, it is not apparent that
analysis of Ms. West's interference claim will
necessarily require interpretation of any CBA
terms.[114] The Court does not “discount the
possibility that in the course of resolving [this] claim, an
interpretive dispute might arise.”[115] At
present, however, “any interpretation of the CBA's
provisions . . . is only potential and
limited.”[116]Accordingly, Alaska Airlines'
motion to dismiss Ms. West's FMLA interference claim as
precluded by the RLA will be denied.[117]
B
State Law Claims
i.
Disability Discrimination - Termination (Count III)
Ms.
West contends that her employment was terminated because of
her disability in violation of AS
18.80.220(a)(1).[118] To establish a prima facie case of
disability discrimination under the statute, a plaintiff must
show that (1) she is a disabled person; (2) she is a
qualified individual, meaning she can perform the essential
functions of her job with or without a reasonable
accommodation; and (3) she has suffered an adverse employment
decision because of her disability.[119] Alaska Airlines argues
that the claim is preempted because under the second step of
the Schurke analysis, the Court would need to
interpret the CBA to determine whether Ms. West is a
“qualified individual” and whether she was
terminated “because of” her
disability.[120]
The
Ninth Circuit addressed a similar argument in Saridakis
v. United Airlines.[121]In Saridakis,
United Airlines terminated the plaintiff's employment for
failing a drug test.[122]Saridakis filed suit alleging that
the airline had committed disability discrimination in
violation of the ADA. The airline contended that the ADA
claim was preempted by the RLA because “its defense to
Saridakis's charge of disability discrimination is based
on a contractual right to terminate him, ” and because
the claim “involve[s] the question whether Saridakis
was fired pursuant to the CBA's
provisions.”[123] In rejecting these arguments, the
Circuit Court first held that whether the plaintiff's
termination was justified under the CBA said “nothing
about the threshold question whether the dispute was subject
to the RLA in the first place.”[124] It
further held that even if Saridakis's ADA claim would
“require the court to review the facts underlying
Saridakis's termination, ” such review would
“not appear to be the sort of interpretation”
that was precluded by the RLA.[125] The Circuit Court
explained:
[T]he ADA . . . claim[] will require a court to examine
whether United terminated Saridakis because of his
disability. Although United may be able to introduce and rely
upon the CBA and the last chance agreement as a part of its
defense, under the Supreme Court's recent ruling [in
Hawaiian Airlines] that would not be enough to
render the dispute minor and therefore subject to the
RLA's dispute resolution mechanism.[126]
Similarly,
in Carmona v. Southwest Airlines Co., Southwest
terminated Carmona's employment for excessive
absenteeism.[127] Carmona filed suit alleging disability
discrimination under the ADA. Southwest argued that
Carmona's claims would require the court to interpret
“the CBA's attendance policy, procedures for
obtaining medical and sick leave, and discipline and
termination procedures.”[128] However, the Fifth
Circuit concluded that “provisions of the CBA are
relevant to, but not dispositive of, the resolution
of Carmona's claims, ” and thus the claims were not
precluded by the RLA.[129]
Even though a court would have to refer to the CBA
to consider fully each of the alleged acts of disparate
treatment, there is no disagreement about how to interpret
these provisions of the CBA that detail Southwest's
procedures for assessing attendance, leave, discipline, and
termination. Carmona's factual allegations that unexcused
absences by female flight attendants went unpunished, that
remarks of his supervisors regarding male employees were
discriminatory, and that his chronic illnesses were the real
reason he was fired, do not bring the meaning of any CBA
provisions into dispute. He alleges that CBA procedures were
applied in a discriminatory manner, not that CBA
procedures were fundamentally discriminatory.[130]
The
District Court for the Northern District of California
recently cited Carmona approvingly in Leaea v.
United Airlines, Inc.[131] Leaea alleged that United
terminated his employment because of his disability in
violation of California law. The airline argued that the
claims were preempted by the RLA because they would require
interpretation of the Attendance Policy of the CBA. The
Leaea court concluded the claims were not preempted,
because although the airline had “cited portions of the
CBA that may be relevant to plaintiff's claims, ”
it had not “identified an ‘active dispute over
the meaning of contract terms.'”[132] The
district court added, “[t]o the extent the parties
dispute whether United properly assessed points for the
plaintiff's absences under the Absence Policy, the Court
will be required to refer to that policy and make a factual
determination; that evaluation does not require
interpretation over disputed terms of the
CBA.”[133]
Like
the claims examined in these cases, Alaska Airlines has not
shown that Ms. West's disability discrimination claim
under AS 18.80.220(a)(1) requires interpretation of the CBA.
The airline argues that to determine whether Ms. West was
terminated “because of” her disability, the Court
will necessarily have to “evaluat[e] Alaska
Airlines' interpretation of attendance and leave
policies.”[134] However, as in Leaea, the
airline has not identified any “active dispute over the
meaning of contract terms” that relate to this
inquiry.[135] Moreover, as in Saridakis, it
is not apparent that an examination of Alaska Airlines'
“conduct and motives” in terminating Ms. West
will require interpretation of the CBA.[136] As part
of her state law claim, Ms. West contends that if certain of
her leave had been counted as FMLA leave, “it would
have dropped off her attendance record and she would not have
been terminated.”[137] If this is disputed, the
Court will likely need to refer to the CBA and/or to Alaska
Airlines' attendance and leave policies. But this
evaluation would likely require the application of these
terms, rather than the interpretation of disputed
terms.[138]
Alaska
Airlines has also not shown that the Court would have to
interpret the CBA to determine whether Ms. West is a
“qualified individual.” The airline notes that
Article 4 of the CBA “lays out the classification job
description for customer service agents” such as Ms.
West.[139] Again, however, Alaska Airlines has
not identified a dispute as to the meaning of any CBA terms
related to an element of Ms. West's state disability
claim. Article 4 outlines job duties associated with the
customer service agent position in straightforward terms; the
Court would likely refer to this portion of the CBA when
analyzing Ms. West's claims, but it does not appear that
the interpretation of any disputed terms would be necessary.
Alaska
Airlines further contends that to determine whether Ms. West
is a “qualified individual, ” the Court will have
to “analyze . . . what is allowed and disallowed by
Alaska Airlines' attendance and leave
policies.”[140] One of these policies addresses
“attendance reliability.”[141] The
parties dispute the significance of this attendance
reliability policy; Ms. West characterizes it as
“subjective” and “irrelevant in this
lawsuit, ” while Alaska Airlines responds that
“the flexible nature of the policy underscores the
importance of preemption in this case.”[142] But there
is at present no active disagreement between the parties that
requires interpretation of the policy's language - such
as a dispute over the meaning of specific terms, or over the
specific requirements the policy imposes on
employees.[143] In the absence of such disagreement,
the Court finds that dismissal of Ms. West's state law
disability discrimination claim based on preemption is not
warranted.
ii.
Disability Discrimination - Disparate Treatment (Count
IV)
Ms.
West also alleges that she was treated in a disparate manner
because of her disability in violation of AS
18.80.220.[144] Ms. West appears to allege that she
was treated less favorably than a similarly situated employee
prior to her termination.[145] To establish a prima facie
case of disparate treatment under Alaska law, Ms. West must
show that (1) she is a disabled person; (2) she was qualified
for her position; (3) she suffered an adverse employment
decision despite her qualifications, and (4) Alaska Airlines
treated her less favorably than other qualified
persons.[146]
Alaska
Airlines contends that to analyze this claim, the Court would
have to “interpret Alaska Airlines' attendance and
leave policies.”[147] However, it is impossible to
determine from Ms. West's Complaint whether Alaska
Airlines is correct. In support of this disability
discrimination claim, the Complaint asserts only that
“[Ms. West] has been treated in a disparate manner on
the basis of her disability” and that “[o]ther
employees who do not have a disability are treated more
favorably.”[148] The Complaint does not identify the
other employees or explain how Ms. West was treated
differently. As currently pled, Ms. West's disparate
treatment claim does not implicate an active dispute over the
interpretation of the CBA, and thus is not preempted by the
RLA. However, as discussed below, Count IV fails to state a
claim upon which relief can be granted.[149]
iii.
Reasonable Accommodation and Interactive Process (Count
V)
Ms.
West next contends that Alaska Airlines breached its duty to
engage in the interactive process and to reasonably
accommodate her disability in violation of AS
18.80.220.[150] As with Ms. West's other claims,
Alaska Airlines does not assert that these claims arise
entirely from the CBA.[151] It argues, however, that the
interpretation of the CBA and its policies will be required
to determine whether the airline breached its duty to provide
a “reasonable accommodation” or whether allowing
leave would have imposed an “undue
hardship.”[152]
The
Ninth Circuit addressed a similar situation in Humble v.
Boeing Co.[153]Humble suffered an on-the-job
injury and filed a state law reasonable accommodation
claim.[154]Boeing maintained that the claim was
preempted under the LMRA[155] because “the CBA,
which provides an intricate scheme of seniority, must
necessarily be interpreted to determine for which jobs Humble
would have been eligible if her accommodation took the form
of a transfer to a light duty position.”[156] The
Circuit Court rejected this argument on two grounds. First,
the court held that it was not apparent that the
plaintiff's claim necessarily implicated the CBA's
complex seniority provisions. “A mere possible reliance
on a CBA provision does not suffice to trigger preemption; at
the very least, the fact that a need to interpret the CBA is
only hypothetical seriously undercuts a defendant's
argument that the state law claim ‘substantially
depends' on the terms of the CBA.”[157]Second,
the court held that “the mere need to refer to a CBA to
determine the jobs for which a disabled employee might be
eligible may not be sufficient to trigger § 301
preemption, even if such consultation is certain to
occur.”[158] In reaching this conclusion, the
Humble court relied in part on Jimeno v. Mobil
Oil Corp., an earlier Ninth Circuit case that also
addressed LMRA preemption of a state law reasonable
accommodation claim. To resolve that claim, “the
Jimeno panel recognized that it would be necessary
to consider factors such as facility size, number of
employees, composition of the workforce, and facility
budgets, many of which might involve consultation of the
CBA.”[159] Nevertheless, the Jimeno
court concluded that “looking to the CBA to make these
determinations rendered the CBA only ‘peripherally
relevant' to the claim, and so did not mandate
preemption.”[160] The Humble court
characterized the Jimeno analysis as “closely
on point, ” and held that Humble's reasonable
accommodation claim did not “'substantially
depend' upon application and interpretation” of the
CBA.[161]
As in
Humble and Jimeno, the resolution of Ms.
West's reasonable accommodation and interactive process
claims do not necessarily require interpretation of the CBA.
Alaska Airlines contends that Ms. West's reasonable
accommodation claim will “require the Court or jury to
analyze the CBA provisions on holiday leave, sick leave,
personal leaves of absence, and medical leaves of absence, as
well as policies and practices for use of paid and unpaid
leave.”[162] However, it is not clear to the Court
that this claim would necessarily implicate all of these
policies and provisions. Even if it did, Alaska Airlines has
not shown that these policies and provisions would be more
than “peripherally relevant” to the reasonable
accommodation analysis.[163] Alaska Airlines also argues
that “[t]o the extent [Ms. West's] leave would
require other employees to be assigned extra shifts, the
provisions regarding assignment of overtime and rest periods
would also be implicated.”[164] However, it has not
shown that any reasonable accommodation would
necessarily implicate these
provisions.[165] Lastly, Alaska Airlines contends that
its “program and policy on temporary modified duties
would also require evaluation to analyze Plaintiff's
accommodation claim.[166] But Alaska Airlines has not shown
that there is currently a dispute over the meaning of any
terms in this policy. Accordingly, Alaska Airlines'
motion to dismiss Ms. West's state law reasonable
accommodation and interactive process claims as preempted by
the RLA will be denied.
iv.
Breach of Implied Covenant of Good Faith and Fair Dealing
(Count VI)
Ms.
West contends that her employment with Alaska Airlines
“includes the implied covenant of good faith and fair
dealing which is embodied in every employment relationship
entered into in Alaska and imposes a duty on Defendant to
treat its employees in a fair, equitable, nonbiased, and
nondiscriminatory manner.”[167] She further contends
that Alaska Airlines breached this covenant.[168] Alaska
Airlines responds that this is a “contractual
claim” that “cannot be considered without
interpretation of the [CBA].”[169]
In
Eldridge v. Felec Services, Inc., the Ninth Circuit
considered whether a cause of action under Alaska law for
breach of the implied covenant of good faith and fair dealing
was preempted by the LMRA.[170] Eldridge asserted that she
had been dismissed in retaliation for pursuing her rights
under the Alaska Worker's Compensation Act
(“AWCA”).[171] The Circuit Court acknowledged that
“Alaska courts characterize a retaliatory dismissal in
violation of the implied covenant of good faith as a contract
cause of action.”[172] But the court concluded
that the plaintiff's claim “would exist even in the
absence of a collective bargaining agreement” and that
the elements of the plaintiff's claim would not require
the court to interpret any term of a CBA.[173]
Accordingly, it held that the LMRA did not preempt the
claim.[174]
Ms.
West's Complaint appears to assert that Alaska Airlines
breached the implied covenant by failing to adhere to the
terms of the CBA.[175] Such a claim would be preempted by the
RLA. But at oral argument, Ms. West clarified that she is
arguing that “because there was a breach in the law . .
. [Alaska Airlines] breache[d] [the] implied covenant of good
faith.”[176] Ms. West's claim is not perfectly
analogous to the claim at issue in Eldridge; it does
not arise under the AWCA. However, a claim based on an
alleged violation of AS 18.80.220-like that examined in
Eldridge-does not “arise entirely” from
the CBA.[177] Alaska Airlines contends that the
claim would “require interpretation of Alaska
Airlines' CBA and incorporated
policies.”[178] However, a state law breach of
covenant claim based on the alleged statutory violations
discussed above would implicate the same analysis as those
statutory claims. Accordingly, the Court will deny Alaska
Airline's motion to dismiss this claim as preempted by
the RLA insofar as Ms. West alleges that Alaska Airlines
breached the implied covenant of good faith and fair dealing
by committing violations of AS 18.80.220. However, the Court
will grant the motion to dismiss insofar as Ms. West alleges
that Alaska Airlines breached the implied covenant by
violating the CBA itself.[179]
v.
Intentional Infliction of Emotional
Distress[180]
Lastly,
Ms. West alleges that her termination in violation of federal
and state law constituted intentional infliction of emotional
distress under Alaska law.[181] Alaska Airlines contends
that this claim is “grounded in the CBA and preempted
under the RLA.”[182]
In
Humble v. Boeing Co., Humble alleged that Boeing
“engaged in extreme and outrageous conduct under
Washington law by repeatedly placing her back in a job which
she could not medically perform.”[183] The Ninth
Circuit established general principles to determine when an
intentional infliction of emotional distress claim will be
preempted.[184]First, a claim is preempted if
“the CBA specifically covers the conduct at
issue.”[185]Conversely, “if the CBA does not
‘cover' the allegedly extreme and outrageous
conduct, the intentional infliction claim will not be
preempted.”[186] Lastly, “even if the CBA does
purport to cover the conduct at issue, the outrage claim
still may not be preempted if it has been tacked on to the
violation of a separate specific non-negotiable state
statute, the violation of which always rises to the
level of outrageousness.”[187]
Applying
these principles, the Humble court concluded that
the LMRA preempted a state law outrage claim. The court first
noted that a CBA provision “fairly directly
addresse[d]” the purportedly outrageous conduct upon
which the claim was premised.[188]It then held that the claim
could not be “tacked on” to reasonable
accommodation claims established by a state statute, as it
had “found no authority in Washington law for the
proposition that a violation of that state's reasonable
accommodation provisions always rises to the level
of extreme and outrageous conduct” and saw “no
reason to define failure to reasonably accommodate as
inherently outrageous, particularly in the absence of
briefing on this point.”[189]
It is
difficult to reconcile the preemption analysis set out in
Humble with the two-part test articulated in
Schurke. Schurke suggests that a claim is
preempted if it “arise[s] entirely from the CBA”
or “require[s] construction of the
CBA.”[190] In contrast, Humble suggests
that the claim is preempted if the CBA “covers”
the conduct at issue, unless the claim is “tacked
on” to a per se outrageous violation of a
state statute.[191] If the Court applied the
Schurke test, its analysis of this claim would
mirror the analysis of the implied covenant of good faith and
fair dealing claim; as pled, Ms. West's IIED claim is
premised on statutory violations that do not require
construction of the CBA. However, Schurke did not
address the analytical framework set out in Humble.
Furthermore, it did not purport to overrule any past
preemption cases. Accordingly, the Court concludes that Ms.
West's IIED claim should be analyzed pursuant to the
principles described in Humble.
Those
principles indicate that Ms. West's IIED claim is
preempted. First, while the claim is based on violations of
state and federal law, Ms. West asserts that it is her
termination that constituted the “extreme and
outrageous conduct.”[192] As in Humble, the
CBA covers-or at least “purport[s] to cover”-the
employer's conduct; it incorporates policies and
provisions that “fairly directly address[]”
employee termination.[193] While Humble does not
precisely suggest how a court should determine whether the
CBA “covers” conduct, Ms. West's case does
not seem to allege “overtly abusive and/or harassing
conduct” that would justify a narrow interpretation of
the CBA's scope.[194] As in Humble, Ms.
West's claim is “tacked on” to violation of a
state statute.[195] However, the Court has found “no
authority in [Alaska] law for the proposition that a
violation of that state's reasonable accommodation
provisions always rises to the level of extreme and
outrageous conduct.”[196] Furthermore, because Ms.
West's claim is based on violations of civil
statutes, it is distinguishable from other cases in which the
Ninth Circuit found that the violation of a state criminal
statute would be per se outrageous.[197]
Therefore, Alaska Airlines' motion to dismiss Ms.
West's IIED claim will be granted.
To
summarize, Alaska Airlines' motion to dismiss Ms.
West's FMLA retaliation and interference claim (Count I)
as precluded by the RLA will be denied. The airline's
motion to dismiss Ms. West's claims of discrimination in
violation of AS 18.80.220(a)(1) (Count III) and breach of the
duty to engage in the interactive process and reasonably
accommodate her disability in violation of AS 18.80.220
(Count V) as preempted by the RLA will be denied. While the
Court declines to conclude that Ms. West's claim of
disparate treatment in violation of AS 18.80.220 (Count IV)
is preempted by the RLA, the claim will be dismissed for
failure to state a claim upon which relief can be
granted.[198]Alaska Airlines' motion to dismiss
Ms. West's breach of the implied covenant of good faith
and fair dealing claim (Count VI) will be denied insofar as
Ms. West alleges that Alaska Airlines breached the covenant
by violating the FMLA or AS 18.80.220; it will be granted
insofar as Ms. West alleges that Alaska Airlines breached the
covenant by violating the CBA itself. Based on
Humble, the Court finds the RLA preempts Ms.
West's IIED claim (Count VII).[199]
3.
Failure to Arbitrate
Alaska
Airlines next argues that Ms. West's claims “are
subject to the mandatory arbitration procedures of the
CBA.” It contends that while Ms. West's claims may
be “couch[ed] . . . as violations of FMLA,
discrimination, or retaliation, . . . . the root of all of
her claims is whether her termination was appropriate under
the CBA's attendance policy.” Accordingly, the
airline maintains that “[n]one of these claims can be
resolved without interpretation and application of the
attendance policy, and the CBA firmly requires such disputes
to be resolved by arbitration.”[200]
In
Wright v. Universal Market Service Corp., the United
States Supreme Court held that union-negotiated CBAs may
require arbitration of statutory claims.[201]
Wright also established, however, that the waiver of
a judicial forum for such claims must be “clear and
unmistakable.”[202] Courts “will not infer from a
general contractual provision that the parties intended to
waive a statutorily protected right unless the undertaking is
explicitly stated.”[203] An arbitration provision is
clear and unmistakable if, for instance, it specifically
names the statutory right subject to mandatory
arbitration.[204]
Alaska
Airlines does not address the “clear and
unmistakable” standard articulated in Wright.
It contends that Ms. West was required to arbitrate her
claims because the CBA requires that grievances related to
attendance and termination be subject to arbitration before
the System Board of Adjustment and because the CBA
“specifically incorporates Alaska Airlines' FMLA,
anti-discrimination, and anti-retaliation
policies.”[205]The CBA provides that the System Board
“shall have jurisdiction over disputes between any
employee or employees covered by this Agreement and the
Company growing out of grievances, ” which include both
“discipline grievances involving unsatisfactory
attendance” and “suspension and discharge
grievances.”[206] However, this general contractual
provision does not expressly state that the parties will
arbitrate specific statutorily protected
rights.[207] Furthermore, Alaska Airlines'
policies do not expressly cite to AS 18.80.220.[208] The
airline has issued a “Guide to Family and Medical Leave
Rights of COPs” that cites to the FMLA in
detail.[209] However, the CBA provides that Alaska
Airlines may “modify [incorporated] manuals, policies
and System Regulations during the term of the
Agreement.”[210] The CBA's reference to these
documents does not demonstrate a “clear and
unmistakable” intent to waive a judicial forum for
these statutory claims.[211] Accordingly, Ms. West was
not required to submit her FMLA and AS 18.80.220 claims to
arbitration and Alaska Airlines' motion to dismiss on
this basis will be denied.[212]
4.
Failure to State a Claim for Relief
Alaska
Airlines separately contends that Ms. West's state law
disparate treatment and intentional infliction of emotional
distress claims should be dismissed for failure to state a
claim upon which relief can be granted.[213] As
discussed above, the Court concluded that the RLA preempts
Ms. West's claim for intentional infliction of emotional
distress[214]; accordingly, it considers here only
whether Ms. West adequately pled her disparate treatment
claim under Alaska law.
Pursuant
to the United States Supreme Court's holdings in
Ashcroft v. Iqbal and Bell Atlantic Corp. v.
Twombly, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its
face.'”[215] In support of her disparate treatment
claim, Ms. West's Complaint simply states that she
“has been treated in a disparate manner on the basis of
her disability” and that “[o]ther employees who
do not have a disability are treated more
favorably.”[216] The Complaint does not explain how Ms.
West was treated less favorably than other employees; it also
does not identify any other employees who were treated more
favorably. In her opposition to the motion to dismiss, Ms.
West identifies an employee who was allegedly treated more
favorably than her.[217] However, when deciding a Rule
12(b)(6) motion to dismiss, “[r]eview is limited to the
complaint; evidence outside the pleadings . . . cannot
normally be considered.”[218] In any event, Ms. West
has not explained how she was treated less favorably than the
employee identified. Therefore, Ms. West's disparate
treatment claim under state law has not been sufficiently
pleaded in the Complaint. However, this claim will be
dismissed without prejudice and with leave to amend.
CONCLUSION
In
light of the foregoing, IT IS ORDERED that Alaska
Airlines' Motion to Dismiss at Docket 8 is DENIED in part
and GRANTED in part as follows:
The
Motion to Dismiss Count I, alleging retaliation and
interference in violation of the FMLA, is DENIED.
The
Motion to Dismiss Count II, alleging discrimination in
violation of the ADAAA, is GRANTED for failure to exhaust
administrative remedies; the dismissal of this count is with
prejudice and without leave to amend.
The
Motion to Dismiss Count III, alleging discrimination in
violation of AS 18.80.220(a)(1), and Count V, alleging breach
of the duty to engage in the interactive process and
reasonably accommodate her disability in violation of AS
18.80.220, is DENIED.
The
Motion to Dismiss Count IV, alleging disparate treatment in
violation of AS 18.80.220, is GRANTED for failure to state a
claim; the dismissal is without prejudice and with leave to
amend.
The
Motion to Dismiss Count VI, alleging breach of the implied
covenant of good faith and fair dealing, is DENIED insofar as
Ms. West alleges that Alaska Airlines breached the covenant
by committing certain statutory violations[219]; the
motion is GRANTED with prejudice and without leave to amend
insofar as Ms. West alleges that Alaska Airlines breached the
covenant by violating the CBA itself.
The
Motion to Dismiss the intentional infliction of emotional
distress claim is GRANTED with prejudice and without leave to
amend.
Within
14 days of the date of this order, Ms. West may file an
amended complaint consistent with the terms of this order or
a notice that she will proceed without Count IV. Alaska
Airlines' answer shall be due 14 days thereafter.
---------
Notes:
[1] Docket 26 (Minute Entry).
[2] Docket 1 (Complaint) at 3, ¶
9.
[3] Docket 9 (Aff. of Misty Villastrigo)
at 2, ¶ 4; see 45 U.S.C. § 151 et
...