Kincheloe v. American Airlines, Inc.

1

2

3 UNITED STATES DISTRICT COURT

4 NORTHERN DISTRICT OF CALIFORNIA

5 SAN JOSE DIVISION

6

7 ROBERT KINCHELOE, et al., Case No. 21-cv-00515-BLF

8 Plaintiffs,

ORDER DENYING MOTION TO

9 v. TRANSFER; GRANTING MOTION TO

DISMISS WITH LEAVE TO AMEND;

10 AMERICAN AIRLINES, INC., AND DIRECTING SUBMISSION OF

PLAN FOR LITIGATING VALIDITY

11 Defendant. OF FORUM SELECTION CLAUSE

12 [Re: ECF Nos. 27, 44]

13

14

15 Plaintiffs Robert Kincheloe, Vonna Rudine, and Sandra Christafferson filed this collective

16 action against Defendant American Airlines, Inc. for violation of the Age Discrimination in

17 Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. See ECF No. 35 (“FAC”). Specifically,

18 Plaintiffs allege that Defendant has offered less valuable consideration to its older flight attendants

19 than to its remaining flight attendants in exchange for the older flight attendants’ agreement to

20 retire early. Id. ¶¶ 1-2. The Court previously conditionally certified this as a collective action on

21 Plaintiffs’ ADEA claim. See ECF No. 52.

22 Now before the Court are two motions by Defendant. Defendant has first filed a Motion to

23 Transfer, arguing that both the traditional convenience factors, see 28 U.S.C. § 1404(a), and a

24 forum selection clause in the early retirement agreements compel a transfer to the Northern

25 District of Texas. See ECF No. 27 (“MTT”); see also ECF No. 40 (“MTT Reply”). Defendant

26 has also filed a Motion to Dismiss, asking the Court to dismiss the operative complaint with

27 prejudice because Plaintiffs do not and cannot state a claim under the ADEA. See ECF No. 44

1 32 (“MTT Opp.”), 46 (“MTD Opp.”). The Court held a hearing on both motions on September 9,

2 2021. For the following reasons, the Court DENIES Defendant’s Motion to Transfer under 28

3 U.S.C. § 1404(a), GRANTS Defendant’s Motion to Dismiss WITH LEAVE TO AMEND, and

4 DIRECTS the parties to submit a stipulated plan for litigation of the validity of the forum selection

5 clause.

6 I. BACKGROUND

7 Defendant American Airlines, Inc. operates a commercial airline with ongoing business

8 within this District and Division. ECF No. 35 (“FAC”) ¶ 14. As alleged in the FAC, Defendant

9 employs thousands of flight attendants who perform the “same primary job duties of providing

10 information, guidance, and assistance for safety and comfort to airline passengers and conducting

11 safety checks.” Id. ¶¶ 15-16. According to the allegations in the operative complaint, in March

12 2020, Defendant offered a Voluntary Early Out Program (“VEOP”) to its flight attendants as

13 consideration in exchange for their agreement to early retirement “to motivate people who really

14 were close to retiring” to retire. Id. ¶ 17-19. The March 2020 VEOP required flight attendants to

15 have at least 10 years of seniority, and Defendant was allegedly aware that only flight attendants

16 older than 40 were eligible due to Defendant’s prior hiring freeze and minimum hiring age

17 requirement. Id. ¶ 20. Many flight attendants, including Plaintiffs, accepted the March 2020

18 VEOP. Id. ¶¶ 11-13, 24.

19 Defendant allegedly provided no truly voluntary choice to its older flight attendants on

20 whether to accept the March 2020 VEOP. FAC ¶¶ 21-23. Plaintiffs claim that Defendant

21 pressured its older flight attendants to accept the March 2020 VEOP through various means, such

22 as denying leave of absence, urging them to refrain from wearing masks on airplanes during the

23 COVID-19 pandemic, and misinforming them that there would be no subsequent early retirement

24 offers. Id. The flight attendants also allegedly did not waive any ADEA rights or claims when

25 agreeing to the VEOP. Id. ¶¶ 27, 29. Defendant allegedly did not request that its older flight

26 attendants sign releases of claims as part of the consideration for early retirement but later required

27 them to do so after they had already agreed to retire early. Id. ¶¶ 25-26. The releases also

1 Protection Act (“OWBPA”), 29 U.S.C. § 626(f). Id. ¶ 28.

2 Four months later, Defendant offered another VEOP to its remaining flight attendants.

3 FAC ¶ 30. The July 2020 VEOP allegedly included more valuable consideration than the March

4 2020 VEOP, such as healthcare flexible spending accounts and flight passes. Id. ¶¶ 31-32.

5 Plaintiffs filed the original complaint on January 21, 2021. ECF No. 1. In response to a

6 motion to dismiss, Plaintiffs filed a First Amended Complaint on March 29, 2021. See FAC. The

7 Court granted Plaintiffs’ unopposed motion for conditional certification on June 7, 2021, while the

8 motions that are the subject of this Order were already pending. ECF No. 52.

9 II. MOTION TO TRANSFER

10 Defendant argues that this case should be transferred to the Northern District of Texas for

11 two reasons: under the convenience factors analyzed pursuant to 28 U.S.C. § 1404(a) and because

12 of a forum selection clause in the VEOP. The Court considers each argument in turn.

13 A. Legal Standard

14 “For the convenience of parties and witnesses, in the interest of justice, a district court may

15 transfer any civil action to any other district or division where it might have been brought or to

16 any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). The purpose of

17 § 1404(a) is “to prevent the waste of time, energy and money and to protect litigants, witnesses

18 and the public against unnecessary inconvenience and expense.” Van Dusen v. Barrack, 376 U.S.

19 612, 616 (1964) (internal quotations omitted).

20 In a motion to transfer analysis, “a valid forum-selection clause should be given

21 controlling weight in all but the most exceptional circumstances.” Atlantic Marine Const. Co. v.

22 U.S. Dist. Court, 571 U.S. 49, 51 (2013) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22,

23 33 (1988) (Kennedy, J., concurring)). Where there is a valid forum-selection clause, “the

24 plaintiff’s choice of forum merits no weight,” the parties’ private interests are not considered, and

25 public-interest considerations may be affected by the lack of carry-over of the original forum’s

26 choice-of-law rules. See id. at 63-65.

27 In evaluating a motion under § 1404(a), the Court must first consider whether Plaintiffs

1 44 (1960). If this threshold requirement is met, then the Court considers the motion to transfer

2 based on an “individualized, case-by-case consideration of convenience and fairness.” Stewart

3 Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988).

4 The Ninth Circuit has identified a number of factors to consider in the process of deciding

5 whether transfer under § 1404(a) is appropriate: “(1) the location where the relevant agreements

6 were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the

7 plaintiff’s choice of forum, (4) the respective parties’ contacts with the forum, (5) the contacts

8 relating to the plaintiff’s cause of action in the chosen forum, (6) the differences in the costs of

9 litigation in the two forums, (7) the availability of compulsory process to compel attendance of

10 unwilling non-party witnesses, and (8) the ease of access to sources of proof.” Dillon v. Murphy

11 & Hourihane, LLP, 2014 WL 5409040, at *13 (N.D. Cal. Oct. 22, 2014) (quoting Jones v. GNC

12 Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000)).

13 No single factor is dispositive, and district courts have broad discretion to adjudicate

14 transfer motions on a case-by-case basis. Ctr. for Biological Diversity v. Kempthorne, 2008 WL

15 4543043, at *2 (N.D. Cal. Oct. 10, 2008) (citing Stewart, 487 U.S. at 29). “The burden is on the

16 party seeking transfer to show that when these factors are applied, the balance of convenience

17 clearly favors transfer.” Lax v. Toyota Motor Corp., 65 F. Supp. 3d 772, 776 (N.D. Cal. 2014)

18 (citing Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979)).

19 B. 28 U.S.C. § 1404(a)

20 In a § 1404(a) analysis, the Court first considers whether this action could have been

21 brought in the Northern District of Texas and then assesses the § 1404(a) factors.

22 i. Whether This Case Could Have Been Brought in the Northern District of

Texas

23

24 A case may only be transferred to a different judicial district under 28 U.S.C. § 1404(a) if

25 it “might have been brought” in that district or if all parties consent to the new district. A case

26 “might have been brought” in a district (1) that would have subject matter jurisdiction, (2) in

27 which defendants would be subject to personal jurisdiction, and (3) in which venue lies pursuant

1 (citing Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960)). The Northern District of Texas would

2 have federal question jurisdiction over the ADEA claim here, 28 U.S.C. § 1331, and it would have

3 personal jurisdiction over Defendant because Defendant’s headquarters is in Fort Worth, Texas,

4 which is within the Northern District of Texas. See ECF No. 27-1 (“Simone Decl.”) ¶ 8. Finally,

5 venue is proper in the Northern District of Texas because American resides in that district and is

6 the only defendant in this case. See 28 U.S.C. § 1391(b). Accordingly, the case could have been

7 brought in the Northern District of Texas.

8 ii. Convenience and Interest of Justice Factors

9 The Court now determines whether this action should be transferred to the Northern

10 District of Texas for convenience of the parties and witnesses and in the interest of justice. 28

11 U.S.C. § 1404(a). Various factors are considered when adjudicating motions to transfer and

12 perform the analysis on a case-by-case basis. Dillon, 2014 WL 5409040, at *13. The Court

13 considers each factor in turn.

14 a. Convenience of the Witnesses and the Availability of Compulsory Process to

Compel Attendance of Non-party Witnesses

15

16 “The convenience of witnesses is said to be the most important factor in passing on a

17 transfer motion. Of particular importance is the convenience of non-party witnesses and their

18 relative importance in the case.” CES Grp., LLC v. DMG Corp., 2015 WL 457405, at *3 (N.D.

19 Cal. Feb. 3, 2015); see also Ventress v. Japan Airlines, 486 F.3d 1111, 1119 (9th Cir. 2007)

20 (affirming transfer where “most potential witnesses resided” in new forum). That a forum can

21 compel attendance of unwilling non-party witnesses favors litigating the case in that forum. See

22 Arete Power, Inc. v. Beacon Power Corp., 2008 WL 508477, at *10 (N.D. Cal. Feb. 22, 2008).

23 Defendant identifies several groups of witnesses who live in Texas and specifically Tarrant

24 County, where Defendant has its headquarters and which is within the Northern District of Texas.

25 First, Defendant says that according to its records, many flight attendants who may be opt-in

26 plaintiffs reside in Tarrant County, Texas, although they also come from a “wide variety of other

27 states.” Simone Decl. ¶ 10. Defendant says that current employees in its finance, compensation,

1 communication departments all work at Defendant’s headquarters in Tarrant County, Texas, and

2 that the “vast majority” of them also reside there. Id. ¶ 13. Defendant also identifies five former

3 American employees who were involved in the creation and implementation of the VEOPs who

4 have left the company but still reside in the Dallas-Fort Worth area:

5 • Cornelius Boone, former VP, Global People Operations and Diversity and Inclusion;

6 • Patrick O’Keefe, former SVP, People

7 • Neisha Strambler-Butler, former VP, Compensation and Benefits

8 • Gregory Schwendinger, former VP, Financial Planning and Analysis

9 • Jill Surdek, former SVP, Flight Service

10 Id. ¶¶ 14(a)-(e).

11 In response, Plaintiffs do not dispute that some of the relevant groups of Defendant’s

12 employees are located in Texas, but say that they plan to depose potential witnesses (including the

13 non-party witnesses Defendant identifies) where they reside or by videoconference and record

14 video depositions for any witness who cannot be subpoenaed to trial. MTT Opp. at 14. Plaintiffs

15 also claim that one of the former employees Defendant identifies in fact resides in San Jose,

16 California, which is within this District. Id. Finally, Plaintiffs say that flight attendants located

17 across the country are all potential witnesses, and that Plaintiff Kincheloe is a resident of this

18 District.

19 The Court finds that this factor favors transfer to the Northern District of Texas, although

20 not as strongly as Defendant claims. Defendant has established that some of the primary groups

21 and witnesses who created and administered the VEOPs are located near Defendants’ headquarters

22 in Texas, but Defendant is an airline, so the cost of travel for its employees and its witnesses to

23 another forum is essentially $0. Plaintiffs have not disputed that four of the five former employees

24 who Defendant identifies as having the most relevant information are located in Texas, but they

25 also acknowledge that one of the most important witnesses (Mr. Boone) is now the Chief People

26 Officer at eBay, which is located in this District. Although Plaintiffs’ argument that every

27 potential flight attendant is a witness is unpersuasive (because, by bringing this lawsuit as a

1 discriminatory), Plaintiff Kincheloe is a witness who is located in this District, even if the two

2 other named Plaintiffs do not reside here. Finally, because the majority of important non-party

3 witnesses are located in the Northern District of Texas, they would be subject to compulsory

4 process in that venue but not in this one. Fed. R. Civ. P. 45(c)(1), (2). The convenience of the

5 witnesses factor thus does favor transfer. See Carder v. Cont’l Airlines, Inc., 2009 WL 10725727,

6 at *2-3 (S.D. Cal. Sep. 28, 2009) (transferring case to forum where defendant was headquartered

7 and “many of its executives, managers, and operating personnel” worked); Hoefert v. American

8 Airlines, Inc., 2018 WL 2740276, at *2-3 (D. Ariz. June 7, 2018) (granting transfer where

9 defendant identified witnesses based at headquarters in Fort Worth, Texas who would likely

10 testify at trial).

11 b. The Plaintiffs’ Choice of Forum

12 Ordinarily, a “plaintiff’s choice of forum should rarely be disturbed” except where “the

13 balance of factors is strongly in favor of the defendants,” Sec. Inv'r Prot. Corp. v. Vigman, 764

14 F.2d 1309, 1317 (9th Cir. 1985), and the defendant must make a “strong showing of

15 inconvenience to warrant upsetting the plaintiff’s choice of forum.” Decker Coal Co. v.

16 Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). However, where a plaintiff asserts

17 a class or collective action, his choice of forum is “often accorded less weight” and the focus shifts

18 to the extent of each party’s contact with the forum and the connection between the plaintiff’s

19 cause of action and the forum. See Roling v. E*Trade Sec., LLC, 756 F. Supp. 2d 1179, 1185

20 (N.D. Cal. 2010) (citing Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987)). The reduced weight

21 in part “serves as a guard against the dangers of forum shopping,” especially where a

22 representative plaintiff does not reside within the District. Foster v. Nationwide Mut. Ins. Co.,

23 2007 WL 4410408, at *2 (N.D. Cal. Dec. 14, 2007).

24 Here, because Plaintiffs assert a collective action, the ordinary deference to their choice of

25 forum is lessened. They are asserting claims on behalf of at least dozens of opt-in plaintiffs from

26 states across the country. And although Defendant has not claimed that this suit was filed here

27 due to forum shopping, only one of the three named Plaintiffs (Kincheloe) lives in this forum,

1 seeks transfer. Simone Decl. ¶ 9. Plaintiffs cite to several other representative actions in which a

2 court granted some deference to a plaintiff’s choice of the original forum, but in those cases the

3 court shifted its analysis to consider the contacts of the parties and connection of the cause of

4 action with the forum instead of giving automatic deference. See Hendricks v. StarKist Co., 2014

5 WL 1245880, at *2-3 (N.D. Cal. Mar. 25, 2014) (finding “at least some deference” after analyzing

6 contacts and connection); Senne v. Kansas City Baseball Corp., 105 F. Supp. 3d 981, 1059 (N.D.

7 Cal. 2015) (affording “some deference” after finding that “a significant portion of the named

8 plaintiffs reside in California” and that “Plaintiffs assert numerous claims under California law on

9 behalf of a California subclass”).

10 Accordingly, the amount of deference to Plaintiffs’ choice of forum depends on the

11 contacts of the parties with Plaintiffs’ chosen forum and the connection between Plaintiffs’ cause

12 of action with the forum. Roling, 756 F. Supp. 2d at 1185. Those factors are analyzed below.

13 c. The Contacts Relating to the Plaintiffs’ Cause of Action in This Forum

14 Defendant argues that there is no connection between the cause of action and this District

15 because the VEOPs were “adopted, negotiated, and administered” out of Fort Worth, Texas, and

16 that Plaintiffs only generally allege that Defendant operates flights out of this District. MTT at 16-

17 17. Plaintiffs respond that the forum must be where the effect of the allegedly discriminatory

18 policy is felt, including where the plaintiff works and where the decision to engage in an allegedly

19 discriminatory practice is implemented. MTT Opp. at 9-10 (quoting Passantino v. Johnson &

20 Johnson Consumer Prods. Co., 212 F.3d 493, 505-05 (9th Cir. 2000)). Having considered these

21 arguments, the Court concludes that this factor does not favor transfer.

22 Plaintiffs do overstate the consideration that must be given to the place where an allegedly

23 discriminatory policy is felt. They cite to Passantino in support of this argument, but that case

24 does not go as far as Plaintiffs say. Passantino involved a Title VII claim—brought in an

25 individual capacity—against Johnson & Johnson for allegedly passing over the plaintiff for

26 promotions because of her sex. 212 F.3d at 500. Johnson & Johnson argued that venue was

27 improper in Washington because the decision to not promote the plaintiff was made in New

1 Washington because that was “where the effect of the unlawful employment practice [was] felt.”

2 Id. Importantly, however, the Ninth Circuit’s decision was founded on Title VII’s specific venue

3 provision, which allows suit in the judicial district in which a plaintiff worked or would have

4 worked. See 42 U.S.C. § 2000e-5(f)(3). The Court also drew parallels to other statutes with

5 specific venue provisions. See Varsic v. U.S. Dist. Ct. for Cent. Dist. of Cal., 607 F.2d 245, 252

6 (9th Cir. 1979) (venue proper where employee works under ERISA-specific venue provision, 29

7 U.S.C. § 1332(e)(2)). The Title VII venue provision is narrower than the general venue statute,

8 which governs ADEA claims. Enoh v. Hewlett Packard Enter. Co., 2018 WL 3377547, at *7

9 (N.D. Cal. July 11, 2018). And even the narrower Title VII venue provision provides for multiple

10 districts in which a suit may be brought. See Passantino, 212 F.3d at 506 (“This is not to suggest

11 that an action involving a failure to promote is not also appropriately brought in the district in

12 which the employment decision is made.”). So venue need not unequivocally be in this District.

13 Nevertheless, the Court does not agree with Defendant that it can entirely disregard that

14 Plaintiff Kincheloe and many other flight attendants felt the effects of Defendant’s allegedly

15 discriminatory VEOPs in this District. See MTT at 16 (arguing that there is “no connection”

16 between Plaintiffs’ claim and this District). The Court finds that the location where the effects of

17 the VEOPs are felt should be considered as part of this analysis, even under the general venue

18 statute. See Serv. Women’s Action Network v. Mattis, 320 F. Supp. 3d 1082, 1088-89 (N.D. Cal.

19 May 1, 2018) (in challenge to venue in § 1983 case, considering “not simply where the decisions

20 were made regarding the . . . training policies but also where the decisions were implemented and

21 [their] effects felt”). To ignore the effects of the allegedly discriminatory policies would entirely

22 and improperly discount the experiences of the collective in the venue analysis—including here,

23 where Plaintiff’s counsel has represented that, at the time of the hearing, 46 of the 87 collective

24 members who live in California (out of approximately 800 potential opt-ins) have already opted

25 in.

26 On balance, the Court finds that this factor does not favor transfer. The locus of the facts

27 underlying the creation of the VEOPs is in Texas where Defendant conceived, developed, sent out,

1 District of Texas has a substantial connection to Plaintiffs’ cause of action because every flight

2 attendant who entered into a VEOP has a connection with that forum. However, the effects of the

3 VEOPs were dispersed in judicial districts across the country where flight attendants work and

4 reside. And Plaintiff Kincheloe felt the effects of the VEOPs in this District where he worked and

5 resided. Defendants’ cause-of-action-related connections to this forum are limited to those flight

6 attendants who worked or resided here, but Plaintiffs have represented that there are a significant

7 number of those opt-in and potential opt-in flight attendants. Accordingly, this factor does not

8 weigh in favor of transfer.

9 d. The Respective Parties’ Contacts with the Forum

10 The Court similarly considers the parties’ contacts with this forum independent of the

11 cause of action asserted. On Plaintiffs’ side, only Plaintiff Kincheloe is alleged to have any

12 connection to this District by working and residing here. See MTT Opp. at 10. Plaintiff Rudine

13 resides in Texas (where Defendant seeks to transfer this case), and Plaintiff Christafferson is in

14 Illinois. See MTT at 20. Defendant is alleged to operate flights out of this District, and it entered

15 into VEOPs with at least 87 potential opt-ins who work or reside here. See MTT Opp. at 8. Of

16 course, Defendant’s contacts with this forum pale in comparison to its contacts with its home

17 forum in the Northern District of Texas. But in considering this factor in particular, the Court is

18 mindful that a case should not be transferred if it “merely shift[s] the inconvenience [of litigating]

19 from the moving party to the opposing party.” Jackson v. Euphoria Wellness, LLC, 2020 WL

20 5366419, at *8 (N.D. Cal. Sep. 8, 2020) (citing Decker, 805 F.2d at 843). Accordingly, the Court

21 finds this factor neutral—both Plaintiffs and Defendant have some connections with each forum,

22 independent of the cause of action. Gomez v. Wells Fargo Bank, NA, 2009 WL 1936790, at *5 (D.

23 Ariz. July 2, 2009) (factor did not significantly influence analysis where parties had contacts in

24 both forums) (citing Italian Colors Rest. v. Am. Express Co., 2003 WL 22682482, at *5 (N.D. Cal.

25 Nov. 10, 2003)).

26 e. The Costs of Litigating in This District and the Location of Documentary and

Testimonial Evidence

27

1 litigating in the two forums. See Ventress, 486 F.3d at 1119 (affirming transfer where “most of

2 the documentary evidence, including [defendant’s] personnel files,” were located in the new

3 forum). Defendant first posits that the documents pertaining to the VEOPs are all located at its

4 corporate headquarters, and that there is no relevant documentary evidence located in California.

5 Mot. at 19. But “the location of documents is increasingly irrelevant in the age of electronic

6 discovery, when thousands of pages of documents can be easily digitized and transported to any

7 appropriate forum.” Fanning v. Capco Contrs., Inc., 711 F. Supp. 2d 65, 70 (D.D.C. 2010); see

8 also Lax, 65 F. Supp. 3d at 780 (“[W]here electronic discovery is the norm (both for electronic

9 information and digitized paper documents), ease of access is neutral given the portability of the

10 information.”); contra Hoefert, 2018 WL 2740276, at *3 (finding relevant documents “less

11 expensive to produce” in Defendant’s home forum). Defendant does not allege that there is any

12 relevant non-document or non-testimonial evidence related to this action that could not be

13 digitized.

14 Separate from documentary evidence are the costs of obtaining the testimonial evidence

15 from the witnesses Defendant has identified and that the Court has already found somewhat favor

16 litigating in the Northern District of Texas. “[L]itigation costs are reduced when venue is located

17 near most of the witnesses expected to testify or give depositions.” Italian Colors, 2003 WL

18 22682482, at *5. As outlined above, Defendant has identified several material witnesses who

19 reside in the Northern District of Texas and who made decisions central to the VEOPs. But

20 Defendant is an airline, and as Plaintiffs point out, the cost of travel for airline employees and its

21 witnesses is essentially $0. MTT Opp. at 13. Plaintiffs’ counsel has also stated that they plan to

22 depose witnesses where they reside or by videoconference from locations near the witnesses’

23 residences, reducing the need for these witnesses to travel. Id. at 14. Accordingly, this factor is

24 neutral.1

25

1 Some courts also compare the time to disposition in the two forums as a measure of “cost,” but

26

the Northern District of Texas and this District are not significantly different. See National

Judicial Caseload Profile, U.S. Courts, available at https://tinyurl.com/659xe6hh (in 2020, N.D.

27

Tex.: 13.3 months; N.D. Cal.: 11.4 months); Ctr. for Biological Diversity v. McCarthy, 2015 WL

1 f. The Location Where the Agreements Were Negotiated and Executed

2 Where a contract is drafted, accepted, and executed in different locations, each of those

3 places is entitled to some consideration in a transfer analysis. See, e.g., Sienkiewicz v. Balda

4 Solns. USA, Inc., 2012 WL 4097713, at *4 (N.D. Cal. Sep. 17, 2012) (factor neutral where

5 settlement agreement negotiated in Germany and executed by different parties in North Carolina,

6 California, and Germany); Hansen v. Combined Transp., Inc., 2013 WL 5969863, at *2 (W.D.

7 Wash. Nov. 7, 2013) (factor neutral where defendant executed agreement in Oregon and plaintiff

8 signed agreement in Washington). But as with the location of documentary evidence, the location

9 where the relevant agreements were negotiated and executed is less relevant in an age of electronic

10 exchange of contracts. See David v. Alphin, 2007 WL 39400, at *3 (N.D. Cal. Jan. 4, 2007).

11 To the extent this factor is to be given any weight, then it is neutral. Here, Plaintiff

12 Kincheloe says that he received, reviewed, and accepted Defendant’s VEOP in this District, and

13 that at least 46 other opt-in flight attendants did the same. MTT Opp. at 13-14. And Defendant

14 drafted and executed the agreement itself at its headquarters in the Northern District of Texas.

15 Plaintiffs have not alleged that any back-and-forth negotiation of the VEOP agreements occurred,

16 as it did in some of the cases it cites that found multiple forums implicated in the analysis of this

17 factor, so that does not implicate alternative forums. See Monterey Bay Military Hous. v. Ambac

18 Assur. Corp., 2018 WL 11269183, at *9 (N.D. Cal. Jan. 2, 2018) (evidence presented that

19 negotiation occurred by phone and email from plaintiff’s chosen forum). This factor is thus also

20 neutral.

21 g. Familiarity of the Forums with Governing Law

22 It is desirable to litigate a case at a forum that is familiar with the governing law. See

23 Apple Inc. v. Wi-LAN Inc., 2014 WL 4477362, at *5 (N.D. Cal. Sept. 11, 2014). However, neither

24 the Northern District of California nor the Northern District of Texas is more familiar with the

25 ADEA because it is a federal law. See Monterey Bay, 2018 WL 11269183, at *10. This factor is

26 thus neutral.

27 * * *

1 demonstrate that the factors “clearly favor” transfer to the Northern District of Texas. Lax, 65 F.

2 Supp. 3d at 776. The Court will thus not transfer this case on statutory grounds.

3 C. Forum Selection Clause

4 Defendant second argues that a forum selection clause in the VEOP agreement specifies

5 federal court in Tarrant County, Texas as the proper venue for lawsuits “relating to” the VEOPs.

6 MTT at 10-15; see also ECF No. 27-1, Exhibit B ¶ 7. Plaintiffs counter that the forum selection

7 clause is invalid because it was part of a group of allegedly supplemental terms that Defendant

8 attempted to impose without additional consideration upon flight attendants who had already been

9 accepted into Defendant’s VEOPs, and that to the extent there is any doubt about the validity of

10 the clause, the Court should conduct an evidentiary hearing on the matter. MTT Opp. at 4-6.

11 Defendant contends that the clause is enforceable because Plaintiffs cannot carry their “heavy

12 burden” of showing that the clause is invalid. MTT at 12; MTT Reply at 4-6. On the record

13 before it at present, the Court cannot determine whether the forum selection clause is valid and

14 enforceable.

15 Forum selection clauses are presumptively valid and “should only be set aside if the party

16 challenging the agreed-upon forum can overcome the ‘heavy burden’ of clearly showing that

17 ‘enforcement would be unreasonable and unjust.’” Rahimi v. Mid Atlantic Professionals, Inc.,

18 2018 WL 3207383, at *4 (S.D. Cal. June 29, 2018) (quoting M/S Bremen v. Zapata Off-Shore Co.,

19 407 U.S. 1, 15, 17 (1972)). One way in which a forum selection clause can be “unreasonable” is if

20 “the inclusion of the clause in the agreement was the product of fraud or overreaching.” Holland

21 Am. Line, Inc. v. Wartsila N. Am., Inc., 485 F.3d 450, 457 (9th Cir. 2007). This may be the case

22 where “the inclusion of that clause in the contract was the product of fraud or coercion.” Richards

23 v. Lloyd’s of London, 135 F.3d 1289, 1297 (9th Cir. 1998) (emphasis in original). Alleging fraud

24 in the inducement of the contract generally is not sufficient. Prima Paint Corp. v. Flood &

25 Conklin Mfg. Co., 388 U.S. 395, 404 (1967).

26 The First Amended Complaint does contain allegations that the inclusion of the clause in

27 the agreement was “the product of fraud or coercion.” Richards, 135 F.3d at 1297. Plaintiffs

1 Plaintiffs and other flight attendants agree to, despite Plaintiffs already having “accepted”

2 Defendant’s offer of early retirement and despite Plaintiffs receiving no additional consideration

3 for the additional terms. See FAC ¶¶ 25-29 (alleging that Defendants foisted releases of claims on

4 Plaintiffs after they had already accepted the early retirement offers); MTT Opp. at 4-6 (arguing

5 the release, which included the forum selection clause, is invalid under either California or Texas

6 law).

7 These allegations run up against two presumptions. First, the presumption of the validity

8 of the forum selection clause, absent Plaintiffs carrying their “heavy burden” of showing that the

9 inclusion of the forum selection clause itself in the contract—rather than the entire agreement—

10 was fraudulent. See Prima Paint Corp., 388 U.S. at 404. Whether these allegations are

11 sufficiently specific to the forum selection clause itself—rather than the entire agreement or set of

12 releases—is questionable. The second issue is the presumption under both Texas and California

13 law that a written instrument has sufficient consideration if any consideration is recited, with the

14 burden on the opposing party to rebut the presumption. See Hoagland v. Finholt, 773 S.W.3d 740,

15 743 (Tex. App. 1989) (“[A] written instrument reciting a consideration imports one, and with such

16 a recitation, [the court] must presume the consideration was sufficient.”); Cal. Civ. Code §§ 1614

17 (“A written instrument is presumptive evidence of a consideration.”), 1615 (“The burden of

18 showing a want of consideration sufficient to support and instrument lies with the party seeking to

19 invalidate or avoid it.”). The release agreement does list consideration, including 456 hours of

20 pay, 30 months of benefits, and retiree travel privileges. MTT Opp. at 2. There is thus a serious

21 question whether Plaintiffs have met their burden to overcome this presumption of valid

22 consideration.

23 Still, to hold at this juncture that the clause is valid and transfer this case to the Northern

24 District of Texas on this basis would be premature. Plaintiffs base much of their theory of the case

25 on the invalidity of the releases, which are in the document that also contains the forum selection

26 clause. But the evidence that the parties have submitted to the Court regarding the exchange of

27 materials related to the VEOPs is unclear and incomplete. The parties have submitted various

1 but it is unclear when and in what sequence this information was exchanged. Those issues would

2 very likely determine if the forum selection clause is valid and whether proper venue lies in the

3 Northern District of Texas.

4 The Court thus finds that further proceedings on this issue would be required if the parties

5 continue to insist on judicial resolution of this issue because there is a genuine question of material

6 fact over whether the forum selection clause controls here. See T&M Solar & Air Conditioning,

7 Inc. v. Lennox Int’l, Inc., 83 F. Supp. 3d 855, 870-71 (N.D. Cal. 2015) (further proceedings on

8 validity of forum selection clause warranted where genuine dispute of material fact whether forum

9 selection clause was included in credit applications); cf. Huang v. Futurewei Techs., Inc., 2018

10 WL 10593813, at *8-9 (N.D. Cal. Sep. 25, 2018) (further proceedings on validity of forum

11 selection clause not warranted where no dispute whether forum selection clause was concealed).

12 Accordingly, the parties SHALL meet and confer within 14 days of this Order and submit a

13 proposed plan for further litigation on the validity of the forum selection. If an evidentiary hearing

14 is required, the Court’s current schedule may cause delay of this case for a significant period of

15 time.

16 For those reasons, Defendant’s Motion to Transfer will be denied at this time because the

17 § 1404(a) convenience factors do not favor transfer. If there are further proceedings on the forum

18 selection clause specified above, the Court will reevaluate whether transfer is appropriate based on

19 the forum selection clause.

20 III. MOTION TO DISMISS

21 A. Legal Standard

22 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a

23 claim upon which relief can be granted tests the legal sufficiency of a claim.” Conservation Force

24 v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (internal quotation marks and citation omitted).

25 While a complaint need not contain detailed factual allegations, it “must contain sufficient factual

26 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

27 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A

1 defendant is liable for the misconduct alleged.” Id. When evaluating a Rule 12(b)(6) motion, the

2 district court must consider the allegations of the complaint, documents incorporated into the

3 complaint by reference, and matters which are subject to judicial notice. Louisiana Mun. Police

4 Employees’ Ret. Sys. v. Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016) (citing Tellabs, Inc. v. Makor

5 Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

6 B. Analysis

7 Defendant argues that the First Amended Complaint is subject to dismissal because

8 Plaintiffs have not plausibly alleged that the VEOP was discriminatory on the basis of age. MTD

9 at 9-10; MTD Reply at 4-9. Defendant says that Plaintiffs’ allegations of pressure to retire do not

10 amount to a constructive discharge required to turn an early retirement program into an adverse

11 employment action, and that their direct evidence of discrimination doesn’t establish that the

12 VEOPs targeted any flight attendant because of age. See MTD Reply at 5, 6. Plaintiffs argue that

13 they have sufficiently alleged that they did not face a voluntary choice in their retirement and that

14 comments by Defendant’s CEO plausibly and certain terms of the VEOPs adequately allege

15 discriminatory motive. MTD Opp. at 7-8.

16 i. Constructive Discharge

17 The ADEA creates a safe harbor for an employer’s early retirement programs. See 29

18 U.S.C. § 623(f)(2)(B)(ii) (“It shall not be unlawful for an employer . . . to take any action

19 otherwise prohibited under [the ADEA] to observe the terms of a bona fide employee benefit plan

20 that is a voluntary early retirement incentive plan consistent with the relevant purpose or purposes

21 of this chapter.”) In general, early retirement programs that “provid[e] incentives to more senior

22 workers to retire rather than to continue to work[] do not create a prima facie case of age

23 discrimination under the ADEA.” Tusting v. Bay View Federal Sav. & Laon Ass’n, 789 F. Supp.

24 1034, 1037 (N.D. Cal. 1992) (citing cases). This is because “an offer of incentives to retire early

25 is a benefit to the recipient, not a sign of discrimination.” Henn v. Nat’l Geographic Soc’y, 819

26 F.2d 824, 828 (7th Cir. 1987). But an early retirement program can amount to an adverse

27 employment action if the employee can establish that the program constituted a “constructive

1 effectively been fired in place and compelled to leave.” Id. at 826. This occurs when “a

2 reasonable person in the employee’s position would feel compelled to resign under the

3 circumstances.” Kalvinskas v. Cal. Inst. of Tech., 96 F.3d 1305, 1308 (9th Cir. 1996). The parties

4 do not dispute that the VEOPs are properly classified as early retirement programs, see MTD at 5,

5 MTD Opp. at 7, so Plaintiffs need to allege constructive discharge to classify the program as an

6 adverse employment action.

7 Plaintiffs do not assert any plausible allegations that establish a constructive discharge.

8 Plaintiffs allege that Defendant “did not provide the [older] flight attendants with a truly voluntary

9 choice” about accepting the VEOP by “discouraging or prohibiting them from wearing masks on

10 airplanes at the beginning of the pandemic,” “denying them leaves of absence” until enough

11 people had accepted the VEOPs, “denying them reduced work schedules,” and “misinforming the

12 flight attendants that there would be no subsequent early retirement offers.” FAC ¶¶ 21-23. None

13 of these allegations suffice. First, the guidance from the Centers for Disease Control at the time of

14 the first VEOP in March 2020 was that healthy people who did not work in the healthcare sector

15 and were not taking care of an infected individual did not need to wear masks. See Deborah

16 Netburn, “A timeline of the CDC’s advice on face masks,” L.A. TIMES (July 27, 2021), available

17 at https://tinyurl.com/35es4byv. It was not until April 3, 2020 that the CDC changed its guidance

18 to recommend face masks in public and when traveling, in response to “a growing body of

19 evidence that people who do not appear to be sick [were] playing an outsize role in the COVID-19

20 pandemic.” Id. Less than a month later, on May 1, 2020, Defendant required its flight attendants

21 to wear masks. See “American Airlines Announces Enhanced Cleaning Procedures and New

22 Personal Protective Equipment for Customers,” AMERICAN AIRLINES NEWSROOM (Apr. 27, 2020),

23 available at https://tinyurl.com/45tzkakj. Accordingly, accepting Plaintiff’s allegation regarding

24 Defendant’s position on mask use as true, that position was not inconsistent with CDC guidance at

25 the time of the March 2020 VEOP and adapted to new CDC guidance as it issued. A mask policy

26 not inconsistent with the CDC’s mask guidance would not make a “reasonable person” feel

27 “compelled to resign.” Kalvinskas, 96 F.3d at 1308.

1 constructive discharge. Denial of leaves of absence or reduced work schedules, even if “an

2 unpleasant alternative[]” to early retirement, would not make a reasonable person feel compelled

3 to resign. Knappenberger v. City of Phoenix, 566 F.3d 936, 940-41 (9th Cir. 2009) (choice

4 between early retirement and plaintiff’s belief that, if he did not retire, he would be terminated and

5 lose his health insurance while his wife was suffering from breast cancer did not establish

6 constructive discharge). Additionally, each of these policies were generally applicable to flight

7 attendants, not targeted at just older ones, and so cannot establish constructive discharge. See

8 Bodnar v. Synpol, Inc., 843 F.2d 190, 193 (5th Cir. 1988) (no claim to constructive discharge

9 where “all employees are subject to the same working conditions”).

10 ii. Alleged Direct Evidence of Discrimination

11 Plaintiffs also allege that they have direct evidence that the VEOP amounted to age

12 discrimination. Plaintiffs allege that Defendant’s CEO Douglas Parker stated on video that

13 Defendant’s purpose in creating the March 2020 VEOP was “to motivate people who really were

14 close to retiring to retire.” FAC ¶¶ 2, 18. They further allege that differences between the March

15 2020 and July 2020 VEOPs create a “reasonable inference” that the earlier program targeted flight

16 attendants on the basis of age. Defendant says that Mr. Parker’s comment is not age-related, and

17 that the other allegations are similarly implausible. MTD Reply at 5.

18 These allegations do not amount to direct evidence of age discrimination. First, Mr.

19 Parker’s comment is not direct evidence that the VEOP was discriminatory. Comments about

20 “retiring” or “retirement” are not direct evidence of discrimination if unaccompanied by evidence

21 that they are being used as a cover for age. See France v. Johnson, 795 F.3d 1170, 1173 (9th Cir.

22 2015) (“repeated retirement discussions” were “not direct evidence” of age discrimination, but at

23 most “circumstantial evidence”); Ilias v. Ripley Ent. Inc., 403 F. Supp. 3d 793, 806 (N.D. Cal.

24 2019) (“[W]hile retirement discussions can be circumstantial evidence of discrimination, they are

25 not direct evidence of discrimination.”); accord Treadway v. Cal. Prod. Corp., 659 F. App’x 201,

26 207 (6th Cir. 2016) (“[T]he terms ‘retire’ and ‘retirement’ alone, without any evidence that they

27 are being used as a proxy for age to express discriminatory bias, are not direct evidence of age

1 terms “retiring” and “retire.” Taken in full, the comment merely expresses that Defendant created

2 to program to “motivate” its employees to retire by offering them incentives to do so. The

3 statement is fully consistent with the ADEA-sanctioned purpose of using an early retirement

4 program to “provid[e] incentives to more senior workers to retire rather than to continue to

5 work[].” Tusting, 789 F. Supp. at 1037. As such, it is not plausible direct evidence of

6 discrimination.

7 Nor are the other allegations plausible direct evidence of discrimination. Plaintiffs allege

8 that Defendant designed the later VEOP to be “more attractive to younger flight attendants” by

9 including healthcare benefits, which the March 2020 VEOP did not contain. FAC ¶ 5. Plaintiffs

10 say this creates a “reasonable inference” that the March 2020 VEOP was targeted toward older

11 employees who did not need health benefits because they qualified for Medicare. MTD Opp. at 4.

12 But “[d]irect evidence is evidence which, if believed, proves the fact without inference or

13 presumption.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998). Plaintiffs

14 themselves admit that these allegations require an inferential step to find discrimination. Plaintiffs

15 further allege that the question-and-answer sheet provided with the March 2020 VEOP contained

16 information about pensions. FAC ¶ 19. But this too suffers from the same problem: it requires an

17 inferential step that offering information about pensions meant that the program was

18 discriminating on the basis of age. It is thus not direct evidence of discrimination, and at best

19 flimsy circumstantial evidence of the same. Even taking each of these three allegations together,

20 the Court finds that the allegations do not establish a plausible basis to find the VEOPs were

21 discriminatory.

22 Plaintiffs rely heavily on Forsyth v. HP Inc., 2020 WL 2524517 (N.D. Cal. May 18, 2020),

23 to support their argument, but that case is inapposite. In that case, HP instituted a workforce

24 reduction plan (“WFR”) that was facially neutral, but that Plaintiffs alleged was intended to weed

25 out older employees. Plaintiffs alleged that HP CEO Meg Whitman stated publicly that HP was

26 “working very hard to recalibrate and reshape [its] labor pyramid” so that it would have a “whole

27 host of young people” at its base. Id. at *2. Plaintiffs alleged that HP terminated thousands of

1 career” employees to replace them. Id. Plaintiffs there also alleged that HP created early

2 retirement policies “that were meant to pressure older employees to leave ‘voluntarily’ or risk

3 being involuntarily fired under the WFR.” Id. Judge Davila denied HP’s motion to dismiss in

4 part, finding “ample direct evidence . . . that the WFR was created and implemented to

5 discriminate against older workers” and that the plaintiffs had sufficiently alleged that they were

6 “terminated because of the discriminatory WFR plan.” Id. at *8.

7 Forsyth is not similar to this case. First, the program at issue in Forsyth involved

8 workforce reduction—terminations—in addition to an early retirement program. Termination is

9 an adverse employment action by itself, whereas an early retirement program is only an adverse

10 employment action if the program amounted to a constructive discharge. Henn, 819 F.2d at 826.

11 As analyzed above, Plaintiffs have not plausibly alleged constructive discharge. Second, in

12 Forsyth plaintiffs made several allegations of direct age discrimination, such as Ms. Whitman’s

13 comment about reshaping the labor pyramid to have “a whole host of young people” at that base

14 and HP’s directives to managers to prioritize hiring younger employees to replace the older fired

15 workers. In contrast, Mr. Parker’s alleged comment does not speak of age, and Plaintiffs’ other

16 allegations are not direct evidence of discrimination. Finally, plaintiffs in Forsyth alleged that the

17 early retirement program was “meant to pressure older employees to leave ‘voluntarily’ or risk

18 being involuntarily fired” under the WFR. There is no such allegation here, nor have Plaintiffs

19 alleged that Defendant instituted any WFR during the relevant time period.

20 * * *

21 Taken individually or as a whole, Plaintiffs’ allegations do not establish a plausible theory

22 of age discrimination. Because the Court finds that Plaintiffs have not adequately alleged

23 constructive discharge or provided plausible allegations of direct age discrimination, it does not

24 consider Defendant’s other argument that the attributes of the VEOPs themselves undermine

25 Plaintiffs’ theory of the case.2 Accordingly, Defendant’s Motion to Dismiss will be granted.

26

27

2 For that reason, Defendant’s request for judicial notice of two documents related to the VEOP

1 C. Leave to Amend

2 “[L]eave to amend should be granted if it appears at all possible that the plaintiff can

3 correct the defect[s]” identified in an order granting a motion to dismiss. Vess v. Ciba-Geigy

4 Corp. USA, 317 F.3d 1097, 1108 (9th Cir. 2003); see also Balistreri v. Pacifica Police Dep’t, 901

5 || F.2d 696, 701 (9th Cir. 1988) (leave to amend warranted where court “could conceive of facts”

6 that, if alleged, would make claim viable). Defendant argues that allowing Plaintiffs leave to

7 amend would be futile because Plaintiffs have already had one chance to amend. MTD at 9-10.

8 But this is the first time the Court has adjudicated a motion to dismiss and identified the defects in

9 || Plaintiffs’ allegations, and it may be possible for Plaintiffs to amend to rectify the defects. The

10 || Court will thus allow Plaintiffs leave to amend.

11 || IV. ORDER

12 For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s Motion to

5 13 Transfer is DENIED and Defendant’s Motion to Dismiss is GRANTED WITH LEAVE TO

14 || AMEND. If they believe they can rectify the defects discussed above, Plaintiffs SHALL file an

3 15 amended complaint no later than 21 days from the date of this Order. Failure to meet the deadline

a 16 || to file an amended complaint or failure to cure the deficiencies identified in this Order will result

3 17 || ina dismissal of Plaintiffs’ claims with prejudice.

18 Additionally, the parties SHALL submit a proposed plan for litigation of the validity of the

19 forum selection clause no later than 14 days from the date of this Order, in accordance with the

20 || directions laid out above.

21 This Order terminates ECF Nos. 27 and 44.

22

23 Dated: September 23, 2021 han tn)

24 [ be h (

BETH LABSON FREEMAN

25 United States District Judge

26

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28