# Davis v. American Airlines

> District Court, W.D. North Carolina · June 28, 2019

URL: https://www.frixlaw.com/law-library/cases/10254884

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** June 28, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
4
¶ 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
8
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.
10
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
11
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254884. Public record. Not legal advice.