Davis v. American Airlines

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:19-cv-44-MOC-DSC

RACHELLE DAVIS, )

)

Plaintiffs, )

)

vs. ) ORDER

)

AMERICAN AIRLINES, et al., )

)

)

Defendants. )

__________________________________________)

THIS MATTER comes before the Court on a Motion to Dismiss by Defendants

American Airlines, Terry Dix, Michelle Magee, and Mark Moscicki, pursuant to Rules 12(b)(1)

and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 9).

I. BACKGROUND

A. Procedural Background

Pro se Plaintiff Rachelle Davis is employed with Defendant American Airlines

(hereinafter “American Airlines” or “the Company”) as a flight attendant. A collective

bargaining agreement (“CBA”) between American Airlines and Plaintiff’s union governs many

of the terms and conditions of Plaintiff’s employment. American Airlines sent Plaintiff for an

independent medical examination pursuant to the CBA after Plaintiff reported that she was being

surveilled and subjected to “thermography radiation” attacks by unknown individuals, including

when she was on duty. An independent psychologist determined that Plaintiff was not fit for

duty and the Company placed her on a medical leave of absence.

Plaintiff claims that she is well now and ready to return to work as a flight attendant. She

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has refused to submit, however, to another independent medical examination to assess her fitness

for duty. She asserts that she is entitled under the CBA to return to work without undergoing

another independent medical examination, and she claims that American Airlines is refusing to

return her to work because of race, age, and disability discrimination and retaliation. Plaintiff

filed this action on January 29, 2019, naming as Defendants American Airlines and three

individual defendants, and purporting to bring employment discrimination claims under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Americans With Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq.

On March 4, 2019, Defendants filed the pending motion to dismiss. Defendants contend

that Plaintiff’s lawsuit is subject to dismissal for several reasons. First, Defendants argue that

Plaintiff’s claims constitute a minor dispute under the Railway Labor Act (“RLA”), over which

the Court lacks subject matter jurisdiction. Second, Defendants contend that Plaintiff failed to

timely exhaust her administrative remedies. Third, Defendants contend that, even if the Court

had subject matter jurisdiction and even if Plaintiff timely exhausted her administrative

remedies, she fails to state a claim on which relief may be granted. On March 5, 2019, this Court

entered an order granting Plaintiff 14 days to respond to the motion to dismiss. (Doc. No. 11).

Plaintiff has filed her response, Defendants have filed a Reply, and Plaintiff has filed a Surreply.

(Doc. Nos. 12, 16, 18). This action is ripe for disposition.

B. Factual Background

i. The Governing Collective Bargaining Agreement

American Airlines employs Plaintiff as a flight attendant based out of the Charlotte

International Airport. See (Doc. No. 10-1 at ¶ 2: Decl. of Mark Moscicki, Defs.’ Ex. 1). Many

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of the terms and conditions of Plaintiff’s employment are governed by a CBA between American

Airlines and Plaintiff’s union, the Association of Professional Flight Attendants. (Id. at ¶ 3; Doc.

No. 10-2: Agreement Between American Airlines, Inc. and Association of Professional Flight

Attendants – APFA (“APFA CBA”), Defs.’ Ex. A). Of particular relevance to Plaintiff’s

claims, Sections 25 and 28 of the CBA govern medical examinations and flight attendants’ return

to work after a medical leave of absence. See (APFA CBA at Sections 25, 28).

Sections 30 and 31 of the CBA establish multi-step procedures for the presentation and

resolution of grievances arising under the CBA, which culminate in a neutral final and binding

arbitration before a System Board of Adjustment. See (APFA CBA at Sections 30-31). Section

28 of the CBA establishes procedures for fitness for duty evaluations. The Company can send a

flight attendant for a medical evaluation with a physician of the Company’s choosing when

reasonable grounds exist to believe the flight attendant’s physical or mental health may impair

the performance of her duties. See (APFA CBA at Section 28(A)). If the flight attendant

disagrees with the physician’s fitness for duty determination, she can challenge it by submitting

her own physician’s opinion. See (APFA CBA at Section 28(C)). If the physician selected by

the flight attendant has an opinion that differs from the Company-selected physician’s opinion,

the disagreeing physicians mutually appoint a third, disinterested health care provider to conduct

another examination of the flight attendant, and the third health care provider’s opinion on the

flight attendant’s fitness for duty controls. See (APFA CBA at Section 28(C)(4)-(5)).

Section 25 of the CBA governs flight attendants’ return to work from leaves of absence.

See (APFA CBA at Section 25). Before returning from a medical leave of absence, a flight

attendant must submit a physician’s verification that she is fit for duty. See (APFA CBA at

Section 25(E)(3)). Disputes between the Company and the flight attendant about the flight

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attendant’s ability to return to work are to be resolved using the procedures for medical

examinations contained in Section 28 of the CBA. See (APFA CBA at Section 25(E)(4), (7)).

ii. Plaintiff Is Determined Unfit for Duty

In August 2015, Plaintiff told Flight Service Manager Terry Dix that unknown

individuals were surveilling her and targeting her with thermography radiation attacks. See

(Doc. No. 10-3 at ¶ 2: Decl. of Terry Dix, attached as Defs.’ Ex. 2). Plaintiff claimed that the

radiation attacks had been ongoing for approximately eighteen months and expressed concern

that her coworkers might be providing information about her to the military. (Id.). Plaintiff told

Dix that she did not stay at Company-provided hotels during layovers because she was unable to

escape the radiation that the military would shoot at her through the air conditioning vents and

windows. (Id. at ¶ 3). Rather, Plaintiff spent the nights in airports during layovers where she

could move around easier and avoid the radiation attacks. (Id.). Plaintiff told Dix that the

attacks could happen anywhere, at any time, including during flights when Plaintiff was working

as a flight attendant. (Id. at ¶ 4). Plaintiff also showed Dix a shield that she wore on her torso

and in her undergarments to block radiation attacks. (Id. at ¶ 5).

Pursuant to Section 28 of the CBA, American Airlines sent Plaintiff for an evaluation

with a psychologist, Dr. Alejandro Arias. See (Doc. No. 10-1 at ¶ 4: Moscicki Decl.). Dr.

Arias examined Plaintiff on September 16, 2015, and determined that she was not fit for duty and

required treatment by a mental health specialist. See (Doc. No. 1 at 15: Arias Fitness for Duty

Evaluation). The Company thereafter placed Plaintiff on a medical leave of absence. See (Doc.

No. 1 at 16: 9/29/15 Ltr. From T. Dix to R. Davis; Doc. No. 10-1 at ¶ 5).

On May 17, 2017, Plaintiff informed American Airlines that she was ready to return to

work. See (Doc. No. 1 at 23: 5/17/17 Ltr. from R. Davis to American Airlines; Doc. No. 10-1 at

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¶ 6). On June 29, 2017, American Airlines informed Plaintiff that it would only return her to

work if Dr. Arias determined that she was fit for duty. See (Doc. No. 1 at 24: 6/29/17 Ltr. from

T. Dix to R. Davis). On August 14, 2018, American Airlines reiterated to Plaintiff that under

Sections 25 and 28 of the CBA the Company would not return her to work unless Dr. Arias

examined her again and determined that she was fit for duty. See (Doc. No. 1 at 25-27: 8/14/18

Ltr. from M. Moscicki to R. Davis). The Company also reminded Plaintiff that if Dr. Arias

determined that she was still unfit for duty and she disagreed with his assessment, Section 28(C)

of the CBA provided a process for her to challenge his determination. (Id.). Plaintiff, however,

has declined to undergo another examination with Dr. Arias. See (Doc. No. 10-1 at ¶ 8).

iii. Plaintiff’s Charge of Discrimination and Allegations of Discrimination

On March 26, 2018, Plaintiff filed a charge of discrimination with the Equal Employment

Opportunity Commission, complaining that American Airlines would not return her to work

because of race, age, and disability discrimination and retaliation. See (Doc. No. 10-4: Charge

of Discrimination, attached as Ex. 3). In this lawsuit, Plaintiff alleges that American Airlines

discriminated against her by accepting a “falsified medical document,” which is presumably Dr.

Arias’ September 2015 determination that Plaintiff was not fit for duty. See (Doc. No. 1 at 4, 8-

10). In addition, Plaintiff alleges that American Airlines discriminated against her by not

returning her to duty. (Id.). Plaintiff contends that American is trying to force her into “early

retirement because of race, age, disability and retaliation.” (Id. at 10).

II. STANDARD OF REVIEW

Federal district courts are courts of limited jurisdiction. United States ex rel. Vuyyuru v.

Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). “They possess only that power authorized by

Constitution and statute.” Randall v. United States, 95 F.3d 339, 344 (4th Cir. 1996). “Thus,

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when a district court lacks subject matter jurisdiction over an action, the action must be

dismissed.” Vuyyuru, 555 F.3d at 347. The existence of federal subject matter jurisdiction is a

threshold issue, Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999), and a

challenge to the court’s subject matter jurisdiction is properly considered on a motion under FED.

R. CIV. P. 12(b)(1). Clinton v. Brown, No. 3:15cv48, 2015 WL 4941799, at *2 (W.D.N.C. Aug.

19, 2015).

The burden of establishing federal subject matter jurisdiction rests on the plaintiff. Id.

The moving party should prevail on a motion to dismiss pursuant to a lack of federal jurisdiction

if material jurisdictional facts are not in dispute, and the moving party is entitled to prevail as a

matter of law. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765,

768 (4th Cir. 1991). Moreover, on a factual challenge to the court’s subject matter jurisdiction,

the Court is not limited to the four corners of the Complaint and is free to weigh evidence and

determine its power to hear the case. See Schneider v. Donaldson Funeral Home, P.A., 733 F.

App’x 641, 644 (4th Cir. 2018); In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333-34 (4th Cir.

2014) (“[W]hen a defendant challenges subject matter jurisdiction via a Rule 12(b)(1) motion to

dismiss, the district court may regard the pleadings as mere evidence on the issue and may

consider evidence outside the pleadings without converting the proceeding to one for summary

judgment.”).

In reviewing a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), the Court must

accept as true all of the factual allegations in the Complaint and draw all reasonable inferences in

the light most favorable to the plaintiff. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56

(2007). However, to survive a Rule 12(b)(6) motion, “[f]actual allegations must be enough to

raise a right to relief above the speculative level,” with the complaint having “enough facts to

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state a claim to relief that is plausible on its face.” Id. at 570. “[T]he tenet that a court must

accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions,”

and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements” are insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550

U.S. at 555). A complaint may survive a motion to dismiss only if it “states a plausible claim for

relief” that “permit[s] the court to infer more than the mere possibility of misconduct” based

upon “its judicial experience and common sense.” Id. at 679 (citations omitted). While the

Court may construe Plaintiff’s complaint liberally because she is a pro se plaintiff, the complaint

must still allege “‘facts sufficient to state all the elements of [her] claim’” to survive a motion to

dismiss. Williams v. Wal-Mart Stores East, L.P., No. 5:18-CV-33-BO, 2018 WL 3341181, at *2

(E.D.N.C. July 6, 2018) (quoting Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th

Cir. 2003)).

III. DISCUSSION

A. RLA Preemption

Defendants first contend in their motion to dismiss that Plaintiff’s employment

discrimination claims are preempted by the RLA. For the following reasons, the Court agrees.

Because American Airlines is a passenger air carrier, the RLA governs its labor practices. See

45 U.S.C. § 181. Congress passed the RLA to promote stability in the transportation industry by

providing a comprehensive and exclusive framework for resolving labor disputes. See Hawaiian

Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994). To realize this goal, Congress established a

mandatory arbitration mechanism to ensure the “prompt and orderly settlement” of labor

disputes. Id. (quoting 45 U.S.C. § 151(a)); see also Union Pac. R.R. v. Sheehan, 439 U.S. 89, 94

(1978); Air Line Pilots Ass’n Int’l v. U.S. Airways Grp., Inc., 609 F.3d 338, 341 (4th Cir. 2010)

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(“[Policy favoring arbitration] has special importance in the rail and air industries, where failure

to resolve labor disputes in a prompt and orderly manner may interrupt commerce and thus

adversely affect the public interest in traveling and shipping.”) (internal edits, quotation marks,

and citations omitted). Congress deemed it essential to the maintenance of labor peace to keep

certain disputes within the dispute resolution framework of the RLA “and out of the courts.”

Sheehan, 439 U.S. at 94.

Courts addressing issues of RLA preclusion divide labor disputes into two categories:

“major disputes” and “minor disputes.” See Hawaiian Airlines, 512 U.S. at 252. The terms

“major” and “minor” have nothing to do with the importance of the issue to the disputants.

“Major disputes” involve the formation of collective bargaining agreements. Id. “Minor

disputes” are disputes arising from the interpretation or application of a collective bargaining

agreement. Id. at 252-53. In other words, “major disputes seek to create contractual rights,

minor disputes to enforce them.” Id. at 253. Minor disputes “must be resolved only through the

RLA mechanisms, including the internal dispute-resolution processes and an adjustment board

established by the employer and the union[].” Hawaiian Airlines, 512 U.S. at 253 (citing 45

U.S.C. § 184); see also Williams v. Air Wisconsin, Inc., 874 F. Supp. 710, 715 (E.D. Va. 1995)

(“The RLA vests in the System Board of Adjustment exclusive jurisdiction over ‘minor’ disputes

such as breach of collective bargaining agreements.”), aff’d, 74 F.3d 1235 (4th Cir. 1996). Thus,

the adjustment boards mandated by the RLA have mandatory, exclusive, and comprehensive

jurisdiction over disputes arising from the interpretation or application of collective bargaining

agreements in the airline industry. See Hawaiian Airlines, 512 U.S. at 252-53.

If a plaintiff’s claims require the interpretation or application of a collective bargaining

agreement, the claims are preempted by the RLA regardless of whether the legal basis for the

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claims arise from a source other than the collective bargaining agreement. See Consol. Rail

Corp. v. Ry. Labor Executives’ Ass’n, 491 U.S. 299, 304 (1989); Lee v. Norfolk S. Ry. Co., 912

F. Supp. 2d 375, 380 (W.D.N.C. 2012) (Section 1981 race discrimination claim preempted by

RLA where plaintiff alleged that defendant employer breached a collective bargaining agreement

with discriminatory intent because resolution would require interpretation of agreement);

Caldwell v. Norfolk S. Corp., No. 96CV443P, 1998 WL 1978291, at *3 (W.D.N.C. Mar. 3,

1998) (Title VII claim preempted by RLA where plaintiff alleged defendant discriminated

against him by not awarding a position to which he was entitled under the governing collective

bargaining agreement); see also Emswiler v. CSX Transp., Inc., 691 F.3d 782, 792-93 (6th Cir.

2012) (disability discrimination claim preempted by RLA where plaintiff sought adjustment of

his seniority date, which would have required the interpretation of the collective bargaining

agreement); Brown v. Illinois Cent. R.R. Co., 254 F.3d 654, 660-61 (7th Cir. 2001) (disability

discrimination claim preempted where resolution of accommodation issue depended on

interpretation of collective bargaining agreement); Gore v. Trans World Airlines, 210 F.3d 944,

948-52 (8th Cir. 2000) (state law tort claims preempted by RLA where defendant’s legal

justification for actions could not be determined without interpreting collective bargaining

agreement).

Plaintiff’s claims present a minor dispute under the RLA. She asserts that American

Airlines should return her to work without requiring her to submit to another medical

examination by Dr. Arias. The procedure for a flight attendant to return to work after a medical

leave of absence, the Company’s right to require a fitness for duty evaluation, and the process for

a flight attendant to challenge a determination that she is not fit for duty are all governed by

Sections 25 and 28 of the CBA. Thus, it would be impossible for the Court to resolve Plaintiff’s

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claims without interpreting and applying the CBA.

Plaintiff’s claims are analogous to those presented in Caldwell, where the governing

collective bargaining agreement regulated the process whereby positions were awarded at the

defendant employer. 1998 WL 1978291, at *1. The plaintiff contended that the employer

violated the collective bargaining agreement by awarding a position to another candidate and

alleged that the employer did so with racially discriminatory intent in violation of Title VII. Id.

at *4. The Court concluded that the Title VII claim was a minor dispute preempted by the RLA

because to assess the discrimination claim it would have to determine the criteria the defendant

was required to use in awarding the position, which would require an interpretation of the CBA.

Id. at *5. Similarly, for this Court to assess Plaintiff’s claim that American Airlines is violating

the CBA with discriminatory intent by requiring her to undergo another fitness for duty

examination before returning her to work the Court would have to assess the terms of the CBA

governing the Company’s right to require the fitness for duty evaluation and Plaintiff’s alleged

right to return to work without one. Accordingly, Plaintiff’s claims constitute a minor dispute

over which the Court lacks subject matter jurisdiction.

B. Plaintiff’s Failure to Timely Exhaust Her Administrative Remedies

Defendants next contend that even if Plaintiff’s claims were not preempted by the RLA,

they would still be subject to dismissal because Plaintiff failed to timely exhaust her

administrative remedies. The Court agrees. Before filing suit under Title VII, the ADEA, or the

ADA, a plaintiff must first exhaust her administrative remedies by timely filing a charge of

discrimination with the EEOC. See 42 U.S.C. § 2000e-5(e)(1) (Title VII); 29 U.S.C. § 626(d)(1)

(ADEA); 42 U.S.C. § 12117 (ADA). To be timely, a charge of discrimination must be filed

within 180 days after the unlawful employment practice occurs. See Davis v. Weiser Sec.

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Servs., Inc., No. 3:13-CV-00522-MOC-DSC, 2016 WL 818913, at *3 (W.D.N.C. Feb. 3, 2016)

(dismissing Title VII lawsuit where plaintiff filed charge 226 days after last act of alleged

discrimination); Mobley v. AAA Cooper Transp., No. 14-CV-136, 2015 WL 790339, at *7

(M.D.N.C. Feb. 25, 2015) (“Under the ADA, a plaintiff must file a charge of discrimination with

the EEOC within 180 days of the alleged discriminatory activity.”); Kargarian v. AutoZoners,

LLC, No. 3:12-CV-144-MOC-DSC, 2012 WL 4753301, at *4-5 (W.D.N.C. Sept. 13, 2012)

(dismissing claims as untimely where plaintiff filed charge more than 180 days after last

discriminatory act).

Plaintiff filed her Charge of Discrimination on March 26, 2018. To have been timely, the

allegedly discriminatory act about which she is complaining must have occurred within the

preceding 180 days, or on or after September 27, 2017. All of the acts about which Plaintiff

complains, however, occurred well before September 27, 2017. Specifically, Dr. Arias

determined that Plaintiff was unfit for duty and American Airlines placed her on a medical leave

of absence in September 2015. American Airlines informed Plaintiff on June 29, 2017, that the

Company would not return her to work without Dr. Arias’ clearance. Accordingly, Plaintiff did

not file a timely charge of discrimination. See Howell v. N. Carolina Cent. Univ., No.

1:16CV576, 2017 WL 2861133, at *10 (M.D.N.C. July 5, 2017) (“[T]he filing period runs from

the time at which the employee is informed of the allegedly discriminatory employment

decision[.]”) (quoting Price v. Litton Bus. Sys., Inc., 694 F.2d 963, 965 (4th Cir. 1982)); Darnell

v. Tyson Foods, Inc., No. 3:11-CV-473-RJC, 2012 WL 6093076, at *3 (W.D.N.C. Dec. 7, 2012),

aff’d, 536 F. App’x 366 (4th Cir. 2013) (same); Weston v. Randolph Cty. Cmty. Coll., No.

1:06CV00063, 2007 WL 2746777, at *3 (M.D.N.C. Sept. 18, 2007) (filing period began to run

when employer orally informed plaintiff her contract would not be renewed). Because Plaintiff

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failed to timely exhaust her administrative remedies, her claims are alternatively dismissed for

this reason.1

C. Plaintiff’s Claims against the Individual Defendants under Title VII, the ADEA,

and the ADA

Next, Defendants contend that Plaintiff’s claims against the individual Defendants

Mosciski, Dix, and Magee must be dismissed because Title VII, the ADEA, and the ADA do not

provide for individual liability. The Court agrees. Accordingly, the claims against Mosciski,

Dix, and Magee will be dismissed for this additional reason. See Jones v. Sternheimer, 387 F.

App’x 366, 368 (4th Cir. 2010) (“Title VII, the ADA, and the ADEA . . . do not provide for

causes of action against defendants in their individual capacities.”).

IV. CONCLUSION

For the reasons stated herein, Defendants’ motion to dismiss is granted.

IT IS, THEREFORE, ORDERED that:

1. Defendants’ Motion to Dismiss, (Doc. No. 9), is GRANTED.

2. This action is dismissed.

3. The Clerk is directed to terminate this action.

1 In her response, Plaintiff argues only that that the EEOC dismissed her charge of

discrimination on the merits rather than on timeliness grounds. The outcome of the EEOC

process, however, has no bearing on the Court’s assessment of whether she timely exhausted

administrative remedies. See Little v. Hook Tire & Serv., Inc., No. 3:13-CV-00521-FDW, 2014

WL 991967, at *2 (W.D.N.C. Mar. 13, 2014), aff’d, 585 F. App’x 50 (4th Cir. 2014) (plaintiff’s

charge was untimely, even though “Plaintiff argue[d] the requisite was met because the EEOC

vacated the first Notice of Dismissal that noted late filing, and issued a second, effectively

interpreting the charge as timely”); Kelley v. Int’l Bhd. of Teamsters, Local Union 71, No. 4:11-

CV-1268-RBH-TER, 2013 WL 6826411, at *3 (D.S.C. Nov. 25, 2013) (plaintiff’s “argument

that his Charge was timely because the Dismissal and Notice of Rights letter he received did not

indicate that it was not timely is unavailing”), report and recommendation adopted as modified,

No. 4:11-CV-1268-RBH, 2013 WL 6826906 (D.S.C. Dec. 23, 2013).

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Signed: June 28, 2019

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