Simonds v. Pan American CV-03-011-M 09/30/03
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Don T. Simonds,
Plaintiff
v. Civil No. 03-11-M
Opinion No. 2003 DNH 164
Pan American Airlines, Inc.,
a/k/a Pan American Airways Corp.,
a/k/a Pan American Airways, Inc.;
David A. Fink; and P. Barry Berminqham,
Defendants
O R D E R
In November of 2002, Don T. Simonds filed this action
against his former employer and two of its corporate executives
(collectively, "Pan Am") in Florida state court, claiming he was
discharged in violation of Florida's Whistleblower's Act, Fla.
Stat. § 448.101, et seg. Pan Am then removed the proceeding to
the United States District Court for the Middle District of
Florida. Subseguently, the matter was transferred to this court,
pursuant to
28 U.S.C. § 1404.
Pending before the court is Pan Am's motion to dismiss, on
grounds that Simonds' claim is pre-empted by the Airline
Deregulation Act, 49 U.S.C. § 41713 (the "ADA"). Alternatively,
pointing to the fact that Simonds' already arbitrated (and won) a
claim that he was wrongfully discharged under a collective
bargaining agreement. Pan Am says his whistleblower claim is
barred by the doctrine of res judicata. Simonds objects.
Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must "accept as true the well-pleaded factual
allegations of the complaint, draw all reasonable inferences
therefrom in the plaintiff's favor and determine whether the
complaint, so read, sets forth facts sufficient to justify
recovery on any cognizable theory." Martin v. Applied Cellular
Tech., Inc., 284 F.3d 1, 6 (1st Cir. 2002) . Dismissal is
appropriate only if "it clearly appears, according to the facts
alleged, that the plaintiff cannot recover on any viable theory."
Lanqadinos v. American Airlines, Inc.,
199 F.3d 68, 69 (1st Cir.
2000) . See also Gorski v. N.H. Dep't of Corr.,
290 F.3d 466, 472
(1st Cir. 2002) ("The issue presently before us, however, is not
what the plaintiff is reguired ultimately to prove in order to
prevail on her claim, but rather what she is reguired to plead in
2
order to be permitted to develop her case for eventual
adjudication on the merits.") (emphasis in original).
Background1
Viewed in the light most favorable to Simonds, the pertinent
facts appear as follows. Simonds is an experienced commercial
pilot, with approximately 20,000 hours of flight time, who, over
the course of his lengthy career, had never been disciplined by
an employer or the FAA. On January 3, 2001, he was scheduled to
fly Pan Am Flight 2 - a four-leg flight from Portsmouth, New
Hampshire to Bangor, Maine, to Pittsburgh, Pennsylvania, to
Sanford, Florida, and then back to Portsmouth. The entire trip
should have reguired approximately 8 hours of flight time and 13
and one-half hours of duty time. That schedule would have been
well within the reguirements of a Federal Aviation Regulation
("FAR"), which provides that a pilot may not be assigned, nor may
1 To provide a more complete picture of the background to
the parties' current dispute, the court has drawn some of the
facts from the opinion in Pan Am. Airways Corp. v. Air Line
Pilots Assoc., Int'l, 206 F. Supp. 2d 12 (D.D.C. 2002), in which
the court affirmed a decision by an arbitration panel concluding
that Pan Am lacked just cause to terminate Simonds' employment.
Neither the arbitrators' decision nor the district court's
opinion affirming that decision is at issue in this case.
3
he or she accept assignment of, a schedule that requires duty for
longer than 16 hours in any 24-hour period. 14 C.F.R. § 121.471.
As it turned out, however, Simonds' aircraft experienced
mechanical problems after successfully completing the first three
legs of the scheduled journey. Following a lengthy delay on the
ground in Sanford, Simonds concluded that he could no longer
complete his flight without running afoul of the 16-hour rule set
forth in the pertinent FAR. Accordingly, he reported his
concerns to Pan Am's director of operations. Captain Jim Baker.2
After discussing his interpretation of the pertinent FAR
with Baker, Simonds informed Baker that he and the two other
members of his flight crew would not fly the aircraft. Baker
disagreed with Simonds' interpretation and told Simonds and his
crew that they were exposing themselves to serious discipline if
they did not complete the flight. Notwithstanding that warning,
Simonds left the aircraft (with 149 passengers on board) and
checked into a local hotel. Baker then terminated his employment
2 If the FAA determined that Simonds had violated the
FAR, it could have punished him by suspending his pilot's license
for 15 to 90 days, without pay. Pan Am. Airways, 206 F. Supp. 2d
at 15 n .2.
4
for insubordination. The other two crew members eventually
agreed to fly, after Pan Am threatened them with termination as
well. They and Captain Baker then completed the flight back to
Portsmouth.3
Subseguently, the Air Line Pilots Association filed a
grievance on behalf of Simonds. The matter was presented to a
panel of three arbitrators and Simonds prevailed. Specifically,
the arbitration panel concluded that Pan Am did not have just
cause to terminate him for insubordination. It then directed the
company to reinstate Simonds to his former position, with full
back pay, interest, and other benefits. That decision was
affirmed on appeal to the United States District Court for the
District of Columbia. Pan Am. Airways, supra.
Five months later, Simonds brought this action in Florida
state court, seeking damages under the Florida whistleblower
statute. As noted above, that suit was removed to federal
3 Initially, the FAA brought enforcement actions against
Pan Am and the other two members of Simonds' crew, but eventually
withdrew the complaints against the crew members because they
flew under threat of losing their jobs. Pan Am. Airways, 206 F.
Supp. 2d at 16.
5
district court and, eventually, transferred to this court.
Because the court agrees that Simonds' state law employment
discrimination claim is pre-empted by the ADA, it need not
address the merits of Pan Am's alternate basis for dismissal.
Discussion
I. Simonds' State Law Claim.
Simonds asserts that when Pan Am discharged him for refusing
to fly the last leg of his assigned route (which he believed
would have violated a FAR), it violated Florida's whistleblower
statute. That statute provides, in pertinent part:
An employer may not take any retaliatory personnel
action against an employee because the employee has:
•k -k -k
(3) Objected to, or refused to participate
in, any activity, policy, or practice of the
employer which is in violation of a law,
rule, or regulation.
Fla. Stat. § 448.102.
In support of his view that his state whistleblower claim is
not pre-empted by the ADA, Simonds advances two arguments.
6
neither of which is particularly compelling. First, while he
acknowledges the pre-emption provision of the ADA, he points out
that the underlying arbitration decision (which is not at issue
in this case) was based on an application of the Railway Act, not
the ADA. That, of course, is true. It does not, however,
undermine Pan Am's assertion in this case: that provisions of
federal law (i.e., the ADA) expressly pre-empt Simonds' state law
whistleblower claim.
Next, Simonds points to a section of the Florida
whistleblower statute which provides that, "[t]his act does not
diminish the rights, privileges, or remedies of an employee or
employer under any other law or rule or under any collective
bargaining agreement or employment contract." Fla. Stat. §
448.105. Presumably, in enacting that statutory provision, the
Florida legislature intended to make clear that the rights and
remedies available under the state whistleblower statute were not
exclusive. That is to say, to the extent other causes of action
and remedies exist (e.g., a claim for breach of contract), they
remain available to a claimant seeking compensation under the
whistleblower statute. In short, the Florida whistleblower
7
statute expressly provides that it does not pre-empt any other
statutory or common law remedies available to an aggrieved
employee.
Importantly, however, the state statutory provision cited by
Simonds does not (nor could it) serve to nullify the pre-emptive
effect of federal law on a claim under that statute. See
generally U.S. Const, art. VI. See also Rose v. Arkansas State
Police, 479 U.S. 1, 3 (1986) ("There can be no dispute that the
Supremacy Clause invalidates all state laws that conflict or
interfere with an Act of Congress."); Louisiana Public Serv.
Comm'n v. Federal Communications Comm'n, 476 U.S. 355, 368 (1986)
("The Supremacy Clause of Art. VI of the Constitution provides
Congress with the power to pre-empt state law.").
II. The Airline Deregulation Act's Pre-emption Provisions.
The pre-emption provision of the ADA states, in pertinent
part:
[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 . . . .
49 U.S.C. § 41713(b) (1) (emphasis supplied). In interpreting
that statutory provision, the Supreme Court has afforded it
extremely broad scope. See Morales v. Trans World Airlines,
Inc.,
504 U.S. 374, 383 (1992) ("[T]he key phrase, obviously, is
'relating to.' The ordinary meaning of these words is a broad
one - 'to stand in some relation; to have bearing or concern; to
pertain; refer; to bring into association with or connection
with' - and the words thus express a broad pre-emptive purpose.")
(citation omitted). See also American Airlines, Inc. v. Wolens,
513 U.S. 219 (1995). In giving the pre-emption provision an
expansive scope, the Court noted the similarity between the ADA's
pre-emption provision and that of ERISA and concluded that it was
appropriate to "adopt the same standard here: State enforcement
actions having a connection with, or reference to, airline
'rates, routes, or services' are pre-empted" under the ADA.
Morales,
504 U.S. at 384.
III. The Federal Whistleblower Protection Program.
In 2000, Congress enacted the Whistleblower Protection
Program ("WPP") as part of the ADA. 49 U.S.C. § 42121. The
Court of Appeals for the Eight Circuit has described that program
as follows:
The [WPP] protects air-carrier employees who report
actual or alleged air-carrier safety violations or who
file proceedings regarding actual or alleged air-carrier safety violations. The Program is a detailed
and comprehensive regulatory scheme. It specifies four
classes of protected employee conduct, prescribes both
the evidentiary and legal standards the Secretary of
Labor must use to determine whether a violation has
occurred and the remedy to be ordered, coordinates the
duties and involvement of two separate federal
agencies, and even includes modest penalties to deter
unfounded or ineguitable complaints. The Program
protects employees from retaliation by their employers
for a variety of "whistleblowing conduct" based on any
actual or alleged federal air-safety violation.
Botz v. Omni Air Int'l, 286 F.3d 488, 491 (8th Cir. 2002).
IV. Simonds' State Law Claim is Pre-empted.
The guestion presently before the court is whether the ADA,
as amended by the WPP, pre-empts Simonds' claim under the Florida
Whistleblower's Act. It does.
The Court of Appeals for the Eleventh Circuit recently
addressed precisely this guestion and concluded that the
plaintiff's claim under the Florida Whistleblower's Act was not
10
pre-empted by the ADA. Branche v. Airtran Airways, Inc., __ F.3d
, 2003 WL 21983019 (11th Cir. Aug. 21, 2003) . Nevertheless,
the court noted that its holding was limited to the specific
facts before it.
As our employment of this analytical modality
indicates, it is the specifics of the retaliation
claim, not the whistleblower statute, that
appropriately determine pre-emption. Thus, retaliation
claims brought under state whistleblower statutes must
be evaluated on a case-by-case basis to determine the
connection between the action in guestion and airline
services.
I d . at * 12 n.9 (emphasis supplied). In reaching that
conclusion, the court cited the Eight Circuit's opinion in Botz
extensively.
In Botz, a flight attendant brought suit against her
employer - an air carrier - under Minnesota's whistleblower
statute, claiming she was wrongfully terminated when she refused
a flight assignment she believed would violate a FAR. Holding
that her claim was pre-empted by the ADA, the court concluded
that "[w]hen applied to the facts surrounding [plaintiff's]
discharge, the Minnesota whistleblower statute has a forbidden
connection with air-carrier services." Botz, 286 F.3d at 494.
11
The court reasoned that because a flight attendant could, by
refusing a flight assignment, force the carrier to cancel a
flight, he or she could have a direct (and negative) impact on
the carrier's "service."
For any size carrier, a significant likelihood exists
that the carrier will have to cancel the flight in
order to comply with the FAR's flight-attendant
staffing regulations. This is patently true when the
flight attendant refuses the assignment within a few
hours of the flight's scheduled departure. On that day
at least, the air carrier will not be providing the
service for which its customers have paid at one of its
scheduled times. An air carrier cannot avoid this
possibility even by adhering to every law, rule, and
regulation - federal and state, for the Minnesota
whistleblower statute authorizes refusals based on the
flight attendant's objective, fact-based belief alone
that the assignment is violative. This authorization
to refuse assignments, and the protections that the
whistleblower statute provides, have a forbidden
connection with an air carrier's service under any
reasonable interpretation of Congress's use of the word
"service."
I d . at 495 (emphasis supplied).
With respect to the effect of the recently-enacted WPP, the
court concluded that it did not evidence any Congressional intent
to exclude from the ADA's broad pre-emption provision claims of
the sort brought by the plaintiff.
12
When it fashioned the WPP, Congress was surely aware of
the ADA's express pre-emption provision. It was
presumably aware, as well, that the Supreme Court had
determined that the provision had a broad application
and should be given an expansive interpretation. Given
this, we would expect Congress to have directed
language in the WPP to the issue of federal pre-emption
only if it had been Congress's intent that the WPP not
exert any pre-emptive effect upon state whistleblower
provisions.
I d . at 497. Accordingly, the court concluded that the "fact that
the WPP now provides a comprehensive scheme for protecting the
precise sort of air safety-related conduct [plaintiff] engaged in
here, is . . . powerful evidence of Congress's clear and manifest
intent to pre-empt state-law whistleblower claims related to air
safety." I d . at 496.
So it is in this case. When he concluded that he could no
longer takeoff in time to complete his assigned flight within the
time limit prescribed by the pertinent FAR, Simonds refused to
fly the plane and left the cockpit. The plane was able to depart
(albeit belatedly) only because his flight crew reluctantly
returned to the plane (under threat of termination) and Pan Am
was able to locate another pilot. Nevertheless, Simonds'
conduct, like that of the flight attendant in Botz, put in
13
jeopardy the air carrier's ability to render service to its
passengers, by threatening to ground a plane. Simonds' state law
whistleblower claim based upon that conduct is, therefore, pre
empted. See Botz, 286 F.3d at 494 ("When applied to the facts
surrounding [plaintiff's] discharge, the [state] whistleblower
statute has a forbidden connection with air-carrier services.").
The Eleventh Circuit's opinion in Branche does not suggest a
different outcome. There, the plaintiff - an airline mechanic -
brought a claim under Florida's whistleblower statute claiming
that he was discharged for having reported past violations of
various FARs. In holding that the plaintiff's claim was not pre
empted, the court distinguished the facts presented in Botz,
observing:
[I]n this case, the connection - or, indeed, the
potential connection - between [plaintiff's] actions
and air carrier services is far more attenuated than in
Bo t z . As the Eight Circuit said, if a flight attendant
refuses to fly and a replacement cannot be found, FAA
regulations prevent the plane from leaving the gate,
thereby disrupting service. Here, by contrast, we are
not concerned with the withdrawal of clearance for a
plane to take off based on mechanical concerns, but
instead only with [plaintiff's] post hoc reporting of a
FAA violation. . . . Had [plaintiff] claimed that
Airtran fired him in retaliation for refusing to allow
14
a plane to take off due to safety concerns, this would
present a situation closer to the one at issue in B o t z .
Branche, at *12 (emphasis supplied). In fact, the Branche court
embraced the reasoning of the Eight Circuit, noting that "[a]s
for the connection between retaliatory discharge claims and
airline services, we do not dispute the Eighth Circuit's
conclusion that the grounding of an airplane is related to
airline services, in particular, the transport of passengers from
one place to another." I d . (emphasis supplied).4
Conclusion
The opinions in both Branche and Botz counsel in favor of
the conclusion that, under the facts presented in this case.
4 To be sure, the Eleventh Circuit did not agree with the
Botz court's analysis of the pre-emptive effect of the WPP.
Specifically, the Eleventh Circuit concluded that Congress's
enactment of the WPP did nothing to alter the scope of the ADA's
pre-emption provision, nor did it provide any additional insight
into the scope which Congress intended that pre-emption provision
to have. Branche, at *13. That fact does not, however, alter
the outcome in this case since the conduct in which Simonds'
engaged (and which the state whistleblower statute allegedly
protects) was undeniably "related to . . . service of an air
carrier," 29 U.S.C. § 41713(b)(1), insofar as it threatened to
disrupt Pan Am's flight from Sanford, Florida, to Portsmouth, New
Hampshire. Conseguently, as applied in this case, the Florida
whistleblower statute has an impermissible effect on air carrier
service and is, therefore, pre-empted.
15
Simonds' state law whistleblower claim is pre-empted. Because
the allegedly protected conduct in which Simonds engaged created
a real threat to Pan Am's ability to provide service to its
customers (by threatening to ground the plane ) , his state
whistleblower claim arising out of that conduct is necessarily
pre-empted. See Morales 504 U.S. at 383-84. See also Branche,
2003 WL 21983019 at 12 n.9 (holding that "it is the specifics of
the retaliation claim, not the whistleblower statute, that
appropriately determine pre-emption.").
Because Simonds' state law whistleblower claim against Pan
Am is, as a matter of law, pre-empted by the ADA, defendants'
motion to dismiss (document no. 7) is granted. The Clerk of
Court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
September 30, 2003
16
cc: Arthur M. Freyre, Esq.
Andrew W. Serell, Esq.
Edward L. Artau, Esq.
R. Matthew Cairns, Esq.
John R. Fornaciari, Esq.
17
