Opinion

Eric Miller v. Raytheon Aircraft Company, Raytheon Travel Air, and Flight Options, L.L.C.

Court: Texas Court of Appeals, 1st District (Houston)
Filed: Apr 19, 2007
Status: Published
Cited by: 0 cases
Authority: More cited than 35.2%

defining phrase “related to” broadly to preempt state enforcement actions having connection with or reference to airline rates, routes, or services

How later courts described this case

defining phrase “related to” broadly to preempt state enforcement actions having connection with or reference to airline rates, routes, or services
holding that service refers to provision of air transportation to and from various markets at various times
holding that because reduction in work force at her plant was at least one reason for plaintiff’s termination, her Sabine Pilot claim failed
holding statements about movement of ranks consisted of expectation of future conduct, not existing fact, and were not actionable

Written by the judges who cited it.

The opinion

Opinion issued April 19, 2007

Opinion

issued April 19, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00787-CV

ERIC L. MILLER, Appellant

RAYTHEON AIRCRAFT COMPANY, RAYTHEON TRAVEL AIR, AND

FLIGHT OPTIONS, L.L.C., Appellees

On Appeal from the 10th District Court

Galveston County , Texas

Trial Court Cause No. 02CV0990

O P I N I O N

In this wrongful discharge case, Eric

Miller, an airplane pilot, appeals summary judgments entered in favor of

appellees Raytheon Aircraft Company (RAC), Raytheon Travel Air (RTA), and

Flight Options, L.L.C. (FOC). Miller

contends (1) summary judgment was improper on his wrongful discharge claims

under the Sabine Pilot [1] exception

to the employment-at-will doctrine, and the trial court erred in considering

hearsay in a summary judgment affidavit, (2) his wrongful discharge claims are

not preempted by the Airline Deregulation Act of 1978, [2] (3)

summary judgment on his breach of contract claims was improper because he was

not an at-will employee, and (4) summary judgment was improper on his common

law tort, conspiracy, and unpaid wages claims.

We conclude that RAC and RTA established that they terminated Miller’s

employment for a reason other than his refusal to perform illegal acts,

negating the causation required for a Sabine

Pilot claim as a matter of law. We

further conclude that the Airline Deregulation Act of 1978 preempts Miller’s Sabine Pilot wrongful discharge claim

against FOC. Finally, the trial court

properly granted summary judgment on Miller’s breach of contract and common law

claims. We therefore affirm the trial

court’s orders granting summary judgment.

Facts and Procedural History

RAC

hired Miller in December 1997 and assigned him to work for RTA as a pilot. RTA was a fractional aircraft ownership

business in which customers would buy a share of an aircraft and pay a monthly

management fee. Buying a share of an

aircraft entitled the customer to a certain number of flight hours per

year. RTA managed the aircraft, which

included providing pilots, crew, maintenance, fuel, catering, and scheduling

services.

December 2001, RTA formed a joint venture with Flight Options, Inc. (FOI), an

RTA competitor. The venture established

a new company called Flight Options, L.L.C. (FOC). FOC also engages in a fractional aircraft

ownership business and operates RTA’s former fleet of aircraft. RTA initially owned a forty-nine percent

interest in FOC, but currently owns a greater than fifty percent interest. As part of the transaction, RTA ceased flight

operations upon the effective date of the agreement.

Miller worked for RAC and RTA until

the FOC joint venture commenced on April 1, 2002, whereupon Miller began

working for FOC. On April 4, just four

days after Miller began work, FOC fired Miller, providing as a basis for its

decision that it had received complaints that he had been abusive to a female flight

attendant, and that he had unnecessarily slowed down an equipment upgrade.

In this lawsuit, Miller alleges that

he was fired for a different reason.

According to Miller’s affidavit, as a pilot, he was responsible for

ensuring that any aircraft he was assigned to fly was fit for service in

accordance with the RTA Flight Operations Manual and Federal Aviation

Administration (FAA) regulations.

Generally, FAA regulations require that all systems and components on an

aircraft be operative. An aircraft,

however, may nonetheless be dispatched for a flight, or may continue a flight,

with certain systems and components inoperative, provided the aircraft has an

approved Minimum Equipment List (MEL), and is operated in accordance with the

procedures and limitations prescribed by the MEL. Miller alleges that throughout his employment

at RAC and RTA, his superiors requested and pressured him to continue flight

operations with aircraft that had maintenance problems that required their

grounding in accordance with their published MELs. Miller further alleges that he was fired

because he refused to fly these aircraft, citing five occasions when he

grounded aircraft that did not meet MEL standards.

addition to a Sabine Pilot wrongful

discharge claim, Miller seeks recovery for breach of employment contract,

promissory estoppel, fraud, negligent misrepresentation, civil conspiracy,

intentional infliction of emotional distress, negligence, and wage and hour

violations.

Wrongful Discharge—RAC and RTA

Affidavit of William Wallisch

the outset, Miller contends the trial court abused its discretion in denying

his motion to strike the affidavit of William Wallisch, an RTA Vice President,

in its entirety. The trial court struck

the portion of Wallisch’s affidavit that stated that Miller’s employment with

RTA was “at-will,” but refused to strike the remainder of the affidavit. Miller contends that the affidavit fails to

demonstrate that Wallisch is competent to offer testimony concerning Miller’s employment

status. Miller also contends that

Wallisch’s statement in the affidavit referencing an un-appended combination

agreement constitutes hearsay. Miller

directs us to Texas Rule of Civil Procedure 166a(f), which provides: “ Supporting

and opposing affidavits shall be made on personal knowledge, shall set forth

such facts as would be admissible in evidence, and shall show affirmatively

that the affiant is competent to testify to the matters stated therein.” Tex.

R. Civ. P . 166a(f).

We review a trial court’s decision to admit or

exclude summary judgment evidence for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex.

1998); United Blood Servs. v. Longoria , 938 S.W.2d 29, 30 (Tex. 1997). The standards for the admissibility of evidence

in a summary judgment proceeding are the same as those applicable to a regular

trial. Longoria , 938 S.W.2d at 30 . In an abuse of discretion review, we consider

whether the trial court acted arbitrarily or unreasonably, or without reference

to guiding rules and principles. Downer

v. Aquamarine Operators, Inc. ,

701 S.W.2d 238 , 241–42 (Tex. 1985). To warrant a reversal, the trial court’s

error must have probably caused rendition of an improper judgment. Tex.

R. App. P. 44.1(a)(1).

1. Competence

Miller contends Wallisch’s affidavit

failed to demonstrate that he was competent to offer testimony concerning

Miller’s employment status. Wallisch’s affidavit states:

1. My name is William Wallisch. I am over twenty-one years of age, and I am

competent to make this Affidavit. All

matters stated herein are true and correct and within my personal knowledge.

2. I am currently the Vice President and

Controller for Raytheon Aircraft Parts & Inventory Distribution. From April 1997 through August 2002, I served

as the Vice President, Finance of Raytheon Travel Air Company.

Rule 166a(f) requires an affiant to affirmatively show that he is competent to

testify to the matters stated in an affidavit. Tex.

R. Civ. P . 166a(f). The affidavit must affirmatively demonstrate how the affiant is competent to testify. Jackson T. Fulgham Co. v. Stewart Title Guar. Co. , 649 S.W.2d 128, 130 ( Tex. App.—Dallas 1983,

writ ref’d n.r.e.). “ The

personal knowledge requirement is satisfied if the affidavit sufficiently

describes the relationship between the affiant and the case so that it may be

reasonably assumed that the affiant has personal knowledge of the facts stated

in the affidavit.” Stucki v. Noble , 963

S.W.2d 776, 780 (Tex. App.—San Antonio 1998, pet. denied).

Here, the assertion in

Wallisch’s affidavit that he was Vice President of Finance at RTA from 1997

until 2002 demonstrates a basis for personal knowledge concerning Miller’s

employment status. We have held that

such an assertion is sufficient to demonstrate personal knowledge and

competence to testify. See Waite v. BancTexas-Houston, N.A. ,

792

S.W.2d 538 , 540–41 ( Tex. App.—Houston [1st Dist.] 1990, no writ); see

also Equisource Realty Corp. v. Crown Life Ins. Co. , 854 S.W.2d 691, 695

( Tex.

App.—Dallas 1993, no writ); Jackson T. Fulgham Co. , 649 S.W.2d at 130 . Accordingly, we hold that the factual

assertions in Wallisch’s affidavit demonstrate his competence to

testify about Miller’s employment status at RTA.

2. Hearsay

Miller also contends that Wallisch’s

statement in the affidavit referring to the combination agreement creating FOC

constitutes hearsay. Specifically,

Miller objects to the portion of Wallisch’s affidavit that states, “although,

pursuant to the parties’ agreements, the pilots would be under the operational

control of Flight Options, L.L.C. between March 20, 2002 and April 1,

2002.” RAC and RTA respond that the statement

regarding the terms of the agreement constitutes a statement of operative

facts, and is therefore not hearsay.

To obtain reversal of a judgment based on error

in the admission or exclusion of evidence, an appellant must show that the

trial court’s ruling was erroneous and that the error was calculated to cause,

and probably did cause, “rendition of an improper judgment.” Tex.

R. App. P . 44.1(a)(1); Malone , 972 S.W.2d at 43 ; Benavides v. Cushman, Inc. , 189

S.W.3d 875, 879 (Tex.

App.—Houston

[1st Dist.] 2006, no pet.) . In making this determination, we review the

entire record. City of Brownsville v.

Alvarado , 897 S.W.2d 750,

754 (Tex.

1995). Reversible error does not usually

occur in connection with evidentiary rulings unless the appellant can

demonstrate that the whole case turns on the particular evidence admitted or excluded. Id. at 753–54; Benavides ,

189 S.W.3d at 879 ; GT

& MC, Inc. v. Tex. City Ref., Inc. , 822 S.W.2d 252, 257

(Tex. App.—Houston [1st Dist.] 1991, writ denied) .

Here, Miller included a

copy of the combination agreement in his summary judgment evidence. Given that the agreement was present

in the record, we hold that Miller could not be harmed by error, if any, in the

trial court’s admission of the statement in Wallisch’s affidavit. See Tex. R. App. P . 44.1(a)(1); GTE Sw., Inc. v. Bruce , 998 S.W.2d 605 , 619–20

(Tex. 1999) (holding that trial court’s error in admitting expert testimony as

to whether defendant’s conduct was extreme and outrageous was harmless because expert

testimony was cumulative of abundant evidence at trial showing that his conduct

was extreme and outrageous) ;

Fairmont

Supply Co. v. Hooks Indus., Inc. , 177 S.W.3d 529, 532 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied) (holding that any error in

admission of evidence was harmless because it was cumulative).

B. Wrongful Discharge

Miller contends the trial court erred

in granting RAC and RTA’s traditional motion for summary judgment on his

wrongful discharge claims because RAC and RTA did not establish as a matter of

law that Miller was terminated for reasons other than his refusal to fly

aircraft in violation of FAA regulations.

We review a summary judgment de

novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 ( Tex. 2005); Provident Life & Accident Ins.

Co. v. Knott , 128

S.W.3d 211, 215 (Tex. 2003). Under the traditional standard for summary

judgment, the movant has the burden to show that no genuine issue of material

fact exists and that the trial court should grant a judgment as a matter of

law. Tex.

R. Civ. P . 166a(c); KPMG Peat

Marwick v. Harrison

County Hous. Fin.

Corp. , 988 S.W.2d 746, 748 (Tex.

1999). In our review, we take as true all

evidence favorable to the nonmovant, and we indulge every reasonable inference

and resolve any doubts in the nonmovant’s favor. Dorsett , 164 S.W.3d at 661 .

In Texas,

absent a specific agreement to the contrary, an employer may fire an employee

at will for good cause, bad cause, or no cause at all. Montgomery County Hosp.

Dist. v. Brown , 965 S.W.2d 501, 502 ( Tex. 1998). In Sabine Pilot Service, Inc. v. Hauck , the Texas Supreme Court recognized

an exception to the employment-at-will doctrine for an employee discharged “for

the sole reason that the employee refused to perform an illegal act.” 687 S.W.2d 733, 735 (Tex.

1985); see also Winters v. Houston

Chronicle Publ’g Co. , 795 S.W.2d 723, 724 (Tex. 1990) . The court held that a plaintiff has the burden

to prove by a

preponderance of the evidence that his discharge was for the sole reason that

he refused to perform an illegal act that he reasonably believed would subject

him to criminal penalties. Sabine Pilot , 687 S.W.2d at 735 ; see also City

of Midland v. O’Bryant ,

S.W.3d 209, 215 ( Tex. 2000); Winters , 795 S.W.2d at 724 . The Sabine Pilot exception applies when

an employee has been unacceptably forced to choose between risking criminal

liability or being discharged from his livelihood. See Winters , 795 S.W.2d at 724 . An employer who discharges an employee both

for refusing to perform an illegal act and for a legitimate reason cannot be

liable for wrongful discharge—the refusal must be the sole cause for the

employee’s termination. Tex. Dep’t of Human Servs. v. Hinds , 904 S.W.2d 629, 633 (Tex. 1995); McClellan v. Ritz-Carlton Hotel

Co. , 961 S.W.2d 463, 464 (Tex. App.—Houston [1st Dist.] 1997, no

pet.).

The evidence is

undisputed that RAC and RTA terminated each and every one of their 500 pilots

when RTA ceased its operation of the fractional aircraft ownership

business. The master transaction

agreement creating FOC provides:

4.5 Employees . Prior to the Closing Date, the Parties will

identify the employees of [FOI] and [RTA] that are to be offered employment

with [FOC] as of the Closing Date and shall make a formal offer of employment

to each such Person and shall inform each such Person of the compensation and

benefits for which such Person will be eligible as an employee of [FOC].

In his affidavit, William Wallisch

states,

4. On March 20, 2002, Travel Air combined certain of

its assets and liabilities with certain assets and liabilities of its

competitor Flight Options, Inc., in order to form a separate legal entity,

Flight Options, L.L.C.

5. Although Travel Air did not cease to exist as a

result of this transaction, it ceased its operation of fractionally-owned

aircraft. As a result, the services

rendered by the pilots who were employed by Travel Air were no longer

necessary, and the employment of Travel Air pilots was officially terminated on

or about April 1, 2002 (although, pursuant to the parties’ agreements, the

pilots would be under the operational control of Flight Options, L.L.C. between

March 20, 2002 and April 1, 2002).

Miller accepted an offer of

employment from FOC in February of 2002. RAC executed a termination of employment form

on April 2, 2002 that states that Miller’s employment was voluntarily

terminated because he obtained another job due to the “[m]erger of Raytheon

Travel Air and Flight Options.”

This evidence establishes as a matter

of law that RAC and RTA terminated the employment of all their pilots, including

Miller, because of the creation of FOC and the cessation of RTA’s fractional

aircraft ownership business. See Bell v. Specialty Packaging Prods. , 925 F. Supp. 475, 477 (W.D. Tex. 1994) (holding that

because reduction in work force at her plant was at least one reason for

plaintiff’s termination, her Sabine Pilot claim failed); cf. McClellan ,

961 S.W.2d at 464–65 (holding defendant failed to prove as matter of law at

least one legitimate reason for terminating plaintiff’s employment). An employer who discharges an employee for reasons other

than the refusal to perform an illegal act cannot be liable for wrongful

discharge under Sabine Pilot . See Hinds , 904 S.W.2d at 633 ; McClellan , 961 S.W.2d at 464 .

The trial court therefore properly granted RAC and RTA’s summary

judgment on Miller’s Sabine Pilot

claims.

Preemption

his second issue, Miller contends the trial court erred in granting FOC’s summary judgment on

his Sabine Pilot wrongful discharge

claim because the claim is not preempted by the Airline Deregulation Act of

1978 (ADA). [3]

A. General

Preemption Law

Federal preemption of state law is grounded in

the Supremacy Clause of the United States Constitution, which provides that “the

Laws of the United States . . . shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.” U.S.

Const .

art. VI, cl. 2; Delta Air Lines, Inc. v. Black , 116 S.W.3d 745, 748

( Tex. 2003). Under the Supremacy Clause, if a state law

conflicts with federal law, the state law is preempted and will have no effect.

Maryland

v. Louisiana , 451 U.S.

725, 746 , 101 S. Ct. 2114 , 2128–29

(1981); Black , 116 S.W.3d at 748 .

“Preemption can take one of several forms.” Black , 116

S.W.3d at 748 . A federal law may expressly preempt a state

law. Id. ; Great Dane

Trailers, Inc. v. Estate of Wells ,

52 S.W.3d 737, 743 (Tex. 2001). A federal law may also preempt a state law

impliedly, “either (i) when the scheme of federal regulation is sufficiently

comprehensive to support a reasonable inference that Congress left no room for

supplementary state regulation or (ii) if the state law actually conflicts with

federal regulations.” Black ,

116

S.W.3d at 748 ;

Great Dane Trailers , 52

S.W.3d at 743 . A state law presents an

actual conflict when a party cannot comply with both state and federal

regulations, or when the state law would obstruct Congress’ purposes and

objectives. Black , 116 S.W.3d at 748 ; Great Dane Trailers , 52 S.W.3d at 743 .

The purpose of Congress is the ultimate

touchstone in every preemption case. Retail

Clerks Int’l Ass’n v. Schermerhorn ,

375 U.S. 96, 103 , 84 S. Ct. 219 , 222–23 (1963); Black , 116 S.W.3d at 748 . We discern congressional intent primarily

from the statute’s language and structure.

Medtronic, Inc. v. Lohr ,

518 U.S. 470, 486 , 116 S. Ct. 2240 , 2250–51 (1996);

Black , 116 S.W.3d at 748 . Also relevant is the purpose of the statute

as a whole, which is revealed through “the reviewing court’s reasoned

understanding of the way in which Congress intended the statute and its

surrounding regulatory scheme to affect business, consumers, and the law.” Lohr ,

518 U.S. at 486 , 116 S. Ct. at 2251 ;

Black , 116 S.W.3d at 748–49.

B. Airline Deregulation Act

In 1978, Congress deregulated the

airline industry by enacting the ADA. See Morales v. Trans World Airlines,

Inc. , 504 U.S.

374, 378 , 112 S. Ct. 2031, 2034

(1992); Black ,

116

S.W.3d at 749 . The ADA is designed to promote “maximum reliance on

competitive market forces,” while at the same time “assigning and maintaining

safety as the highest priority in air commerce.” 49 U.S.C. § 40101 (a) (2000); Am.

Airlines, Inc. v. Wolens , 513 U.S.

219, 230 , 115 S. Ct. 817, 824

(1995). To ensure that the states would

not compromise federal deregulation by promulgating regulations of their own,

the ADA contains a preemption

provision. 49 U.S.C. § 41713 (b)(1) (2000); Morales , 504 U.S.

at 378–79, 112 S. Ct. at 2034 .

The ADA’s preemption

provision provides:

Except as provided in this subsection, a

State, political subdivision of a State, or political authority of at least 2

States may not enact or enforce a law, regulation, or other provision having

the force and effect of law related to a price, route, or service of an air

carrier that may provide air transportation under this subpart.

49 U.S.C. § 41713 (b)(1).

1. Morales and Wolens

In Morales v. Trans World Airlines, Inc. , the United State Supreme Court examined whether the ADA preempted the enforcement of guidelines

concerning regulation of airline fare advertising through Texas’s consumer protection statutes. 504 U.S.

at 378–80, 112 S. Ct. at

2034–35. Relying on its ERISA line of

cases and the ordinary meaning of the words of the statute, the Court construed

the phrase “related to” broadly to preempt state enforcement actions “having a connection with or

reference to” airline rates, routes, or services. Id. at 384, 112 S. Ct.

at 2037 . The Court also held that the

preemption provision could apply to laws of general applicability that do not

specifically reference the airline industry.

Id.

at 386 , 112 S. Ct. at 2038 . While the Court acknowledged that some state

actions might affect airline fares in too tenuous, remote, or peripheral a

manner to be preempted, it concluded that the obligations imposed by the advertising

guidelines would affect the airlines’ ability to market their product and the

fares they charged. Id. at

390 , 112 S. Ct. at 2040 . The advertising guidelines therefore had a

“forbidden significant effect” on the airlines’ rates, routes, and services

because they restricted fare advertising, which relates to rates. Id.

at 388–89, 112 S. Ct. at 2039 . The Court held the ADA

preempted the fare advertising guidelines in the state consumer protection

statutes at issue. Id. at 391 , 112 S. Ct. at 2041 .

In American Airlines,

Inc. v. Wolens , the United States Supreme Court again addressed the ADA’s preemption clause. 513 U.S.

at 227–28, 115 S. Ct. at 823–24. Wolens

involved state law

consumer fraud and breach of contract claims arising from retroactive changes

in an airline’s frequent flyer program. Id. at 224–25, 115 S.

Ct. at 822 . The Court focused on the preemption clause

phrase, “enact or enforce any law,” to determine the ADA’s

preemptive scope. Id.

at 226 , 228–29, 115 S. Ct. at 823–24. The Court held that, like the

guidelines at issue in Morales ,

the ADA preempted Illinois’s consumer fraud statute because the

statute “serve[d] as a means to guide and police the marketing practices of the

airlines.” Id.

at 228, 115 S. Ct. at 823–24.

The Wolens Court

next turned to whether the ADA

preempted the plaintiffs’ breach of contract claims. Id. at 228, 115 S. Ct. at 824 .

The Court held that the ADA’s

preemption clause did not shield airlines from “suits alleging no violation of

state-imposed obligations, but seeking recovery solely for the airline’s

alleged breach of its own, self-imposed undertakings.” Id.

The Court reasoned that

the contract at issue was a privately ordered obligation, and did not amount to

a state’s enactment

or enforcement of a state law, rule, regulation, standard, or other provision. Id. at 228–29, 115 S. Ct. at 824 ; see

also 49 U.S.C. § 41713 (b)(1). The Court limited its holding,

however, to suits based on the terms of the parties’ bargain, “with no

enlargement or enhancement based on state laws or policies external to the

agreement.” Id.

at 233 , 115 S. Ct. at 826 . Courts have

interpreted this to mean that if a court cannot adjudicate a contract claim

without resort to external law, the ADA

preempts the claim. See, e.g. , Smith v. Comair, Inc. , 134 F.3d 254, 257 (4th

Cir. 1998); Black , 116 S.W.3d at 750 ; Boon Ins. Agency, Inc.

v. Am. Airlines, Inc. , 17 S.W.3d 52 , 58–59

(Tex. App.—Austin 2000, pet. denied) . Additionally, the Wolens Court suggested

that the ADA’s preemption provision

should be read in light of the ADA’s

overarching deregulatory purpose, and should be interpreted to mean that states

may not seek to impose their own public policies or theories of competition or

regulation on the operations of an air carrier.

See 513 U.S.

at 229 n.5, 115 S. Ct. at 824 n.5.

2. Kiefer and Black

The Texas Supreme Court first addressed

preemption under the ADA in Continental

Airlines, Inc. v. Kiefer . 920 S.W.2d 274, 275 (Tex. 1996).

The court applied a two-part analysis to determine whether the ADA preempted the plaintiffs’ personal injury negligence

claims. [4] Id. at 281–82. First, the court examined whether the claims

related to airline rates, routes, or services.

Id. at 281 . Second, the court examined whether the claims

constituted the enactment or enforcement of a state law, rule, regulation,

standard, or other provision. Id. The court concluded that, although the

plaintiffs’ negligence claims clearly related to the airline’s services, the

claims did not amount to the enforcement of a state law and therefore were not

preempted. Id.

at 282 . The court noted that, unlike the

state consumer protection legislation at issue in Morales , negligence actions do not “carry the

same ‘potential for intrusive regulation of airline business practices

. . . .’” Id.

(quoting Wolens , 513 U.S. at 227 , 115 S. Ct.

at 823 ). The court, however, cautioned that, depending

on the nature and extent of damages sought, even simple negligence actions may

constitute an impermissible regulation of the airline industry through state

tort law. Id. In making its decision, t he court focused on the

extent to which the negligence claims threatened to encroach on the

congressional objective of airline deregulation, instead of categorically

declaring that the ADA always

exempts personal injury claims from preemption . Id. ;

see also Black , 116 S.W.3d at 751 .

In 2003, The Texas Supreme Court

again addressed preemption under the ADA

in Delta Air Lines, Inc. v. Black . 116 S.W.3d at 747 . In Black , the

plaintiff and his spouse purchased first-class seats on a Delta flight for a trip

to Las Vegas.

Id. When

the couple arrived at the airport, Delta denied the spouse a first-class seat

because the flight was overbooked. Id. The plaintiff then sued Delta for breach of

contract, fraud, and negligent misrepresentation. Id. at 748 .

Delta asserted that the ADA

preempted the plaintiff’s claims. Id.

The Texas Supreme Court applied the two-part

analysis from Kiefer and

examined whether the plaintiff’s contract claims related to airline prices,

routes, or services, and

whether the claims constituted the enactment or enforcement of a state law,

regulation, or other provision. Id. at 752–54. The court also examined cases from the Ninth

and Fifth Circuits to determine the meaning of the term “services” in the ADA’s preemption clause. Id. at 752; see also Charas v. Trans World

Airlines, Inc. , 160 F.3d

1259, 1261 (9th Cir. 1998) (narrowly defining services as “the prices, schedules,

origins and destinations of the point-to-point transportation of passengers,

cargo, or mail”); Hodges v. Delta Airlines, Inc. , 44 F.3d 334, 336 (5th Cir. 1995) (broadly defining services to

include “ticketing, boarding procedures, provision of food and drink, and

baggage handling, in addition to the transportation itself”). While the court did not articulate its own

definition of services, it concluded that claims involving boarding and seating

procedures fall within most courts’ definitions of services, including the

Ninth and Fifth Circuits’. Black , 116 S.W.3d at 753 . The

court therefore held that the plaintiff’s contract claims related to Delta’s services. Id. ; see also Wolens , 513 U.S. at 226 , 115 S. Ct.

at 823 (noting that services includes “access to flights and class-of-service

upgrades”). The court stated that,

unlike the frequent flyer program in Wolens ,

“seating policies and boarding procedures are not peripheral to the operation

of an airline, but are inextricably linked to the contract of carriage between

a passenger and the airline and have a definite ‘connection with, or reference

to’ airline services.” Black , 116 S.W.3d at 753 (quoting Morales ,

504 U.S. at 384 , 112 S. Ct. at 2037 ).

The court also concluded that the plaintiff’s

contract claims, if allowed to proceed, would constitute state enforcement or

enactment of a state law under the preemption provision of the ADA. See id. at 756. The court discussed the fact that the alleged

contractual violations in the case involved a common condition unique to the

airline industry—the failure to seat an allegedly confirmed ticket holder

because of overbooking—and that unlike the frequent flyer agreements at issue

in Wolens , specific federal

regulations govern compensation for air passengers who are involuntarily

prevented from boarding a flight due to overbooking. Id. ; see also 14 C.F.R. §§ 250 .1–250.9 (2000)

(requiring airlines to pay compensation to any passenger who is involuntarily

denied boarding caused by oversold flight, and allowing passenger to decline

payment and recover damages in court of law, unless passenger is offered

accommodations or is seated in section of aircraft other than that specified on

ticket at no extra charge). Delta had

incorporated these federal regulations into its contract. Under the federal regulations, the plaintiff

would not have been entitled to sue Delta for breach of contract because the

plaintiff and his spouse were not involuntarily denied boarding—Delta offered

to seat them “in a section of the aircraft other than that specified on the

ticket at no extra charge . . . .” Black , 116 S.W.3d at 755–56; see also 14 C.F.R. § 250.6 (c). The court noted that the specific federal

regulations had a national purpose in that they provided a uniform system of

compensation to passengers. Black , 116 S.W.3d at 756 . The

court stated that, “[i]f passengers were permitted to challenge airlines’ boarding

procedures under state common law, the airline industry would potentially be

subject to regulation by fifty different states.” Id. The

court held that the ADA preempted

the plaintiff’s contract claims because the court could only adjudicate the

claims by reference to laws and policies external to the contract. Id.

C. Air Carrier Status

Miller contends the ADA does not apply to this case because FOC did not

establish as a matter of law that it is an “air carrier,” as defined by the ADA. 49 U.S.C. § 40102 (a)(2) (2000).

The ADA’s preemption provision applies only to laws or

regulations that affect air carriers. Id. § 41713 (b)(1). Under the ADA,

“air carrier” is defined as “a citizen of the United

States undertaking by any means, directly or indirectly, to

provide air transportation.” Id. §

40102(a)(2) . “[A]ir transportation” means “foreign air

transportation, interstate air transportation, or the transportation of mail by

aircraft.” Id. §

40102(a)(5). “[I]nterstate air

transportation” means “the transportation of passengers or property by aircraft

as a common carrier for compensation . . . .” Id. § 40102(a)(25). A “citizen of the United States” can be “a

corporation or association organized under the laws of the United States or a

State, the District of Columbia, or a territory or possession of the United

States . . . .” Id. § 40102(a)(15)(C)

(Supp. III 2003).

FOC produced a certificate from the FAA certifying its

status as an air carrier. See 14 C.F.R. § 119.5 (a) (2000) (“A

person authorized by the Administrator to conduct operations as a direct air

carrier will be issued an Air Carrier Certificate.”). Miller did not produce any contrary evidence

to raise a fact issue. FOC has therefore

established as a matter of law its status as an air carrier under the ADA. [5]

D. ADA Preemption of Miller’s Sabine Pilot Claim

In determining whether the ADA

preempts Miller’s Sabine Pilot claim

against FOC, we apply the Texas Supreme Court’s two-part analysis from Kiefer .

Kiefer , 920 S.W.2d at 281–82.

We begin with the question of whether Miller’s Sabine Pilot wrongful discharge claim is

related to FOC’s prices, routes, or services.

See id. at 281 . Miller’s Sabine

Pilot claim authorizes a suit for wrongful discharge when FOC terminated

his employment allegedly for refusing to fly aircraft that did not meet FAA

regulations. See 687 S.W.2d at 735 . It is

undisputed that Miller’s refusals to pilot aircraft resulted in the grounding

of the aircraft. Grounding aircraft

directly affected FOC’s point-to-point transportation services. While some variation has arisen among the

courts regarding the definition of the term “services” under the ADA, every court attempting to define the term has

included point-to-point transportation within its definition as a bargained-for

aspect of air travel. See Branche v. Airtran Airways, Inc. , 342 F.3d 1248, 1257 (11th Cir.

2003) (adopting Fifth Circuit definition of services, which includes

transportation itself); Botz v. Omni Air

Int’l , 286 F.3d 488, 495 (8th Cir. 2002) (holding

flight attendant’s refusal to violate federal law by exceeding work hour

maximum affected air carrier’s services because aircraft could not fly without

her); Duncan v. Nw. Airlines, Inc . , 208 F.3d

1112 , 1114–15 (9th Cir. 2000) (holding

that service

refers to provision of air transportation to and from various markets at

various times), cert. denied , 531 U.S. 1058 , 1058, 121

S. Ct. 650 , 650–51 (2000) (O’Connor, J., dissenting) (noting various

definitions of term “services” under ADA and need to resolve this conflict

between circuit courts); Charas , 160 F.3d at 1261

(defining services to include point-to-point transportation of passengers,

cargo, or mail); Travel All Over the World, Inc. v. Kingdom of Saudi Arabia , 73 F.3d 1423, 1433 (7th Cir. 1996)

(defining services to include transportation itself); Hodges , 44 F.3d at 336 (defining services

to include transportation itself); Black ,

116 S.W.3d at 752 (citing service definitions from Hodges and Charas ). Given the United States Supreme

Court’s broad interpretation of the phrase “related to,” w e hold that Miller’s Sabine Pilot claim relates to FOC’s

point-to-point transportation services. See 49 U.S.C. § 41713 (b)(1); Morales , 504 U.S.

at 384 , 112 S. Ct. at 2037 (defining

phrase “related to” broadly to preempt state enforcement actions having

connection with or reference to airline rates, routes, or services).

The second inquiry under the Kiefer analysis is whether Miller’s Sabine Pilot wrongful discharge claim

constitutes the enforcement of a state law, regulation, or other provision

within the meaning of the ADA’s

preemption clause. See Kiefer , 920 S.W.2d at 281 . Unlike a simple negligence claim, or a

contract claim involving only obligations voluntarily undertaken by an air

carrier, a Sabine Pilot wrongful

discharge claim embodies state public policy.

See Wolens , 513 U.S. at

232–33, 115 S. Ct. at 826 ; Kiefer , 920 S.W.2d at 282 . A Sabine

Pilot claim represents a policy determination by the State of Texas that an employee terminated for refusing to

perform a criminal act should have a tort action against his employer. See 687

S.W.2d at 735 (“ We now hold that public policy, as expressed in

the laws of this state and the United States

which carry criminal penalties, requires a very narrow exception to the

employment-at-will doctrine announced in East Line & R.R.R. Co. v. Scott . ”).

Under the facts of this case , Sabine

Pilot would allow Miller to seek money damages in state court when he chose

to ground aircraft and suffered termination of his employment as a consequence . State enforcement of Miller’s Sabine Pilot claim therefore imposes

state policies on the point-to-point transportation services of FOC. See

Black , 116 S.W.3d at 757 . “A state’s

common law cannot operate against an airline in this context when it would

constitute state enforcement of a law relating to airline services.” Id. ; see also Morales , 504 U.S. at 383–84, 112 S. Ct.

at 2037 . Contrary to the ADA’s purpose, Miller’s Sabine Pilot claim has the potential to impose state regulation on FOC’s

business practices and transportation services.

See Wolens , 513 U.S.

at 227–28, 115 S. Ct. at 823 ; Black , 116 S.W.3d at 754 ; Kiefer , 920 S.W.2d at 282 . This is true despite the fact that the ADA and the Sabine

Pilot claim alleged here have consistent goals: compliance with federal

regulations and airline safety. The ADA’s preemption provision displaces all state laws

that fall within its sphere, regardless of whether the state law is consistent

or inconsistent with the ADA’s

purposes and objectives. Morales , 504 U.S.

at 386–87, 112 S. Ct. at 2038 .

Accordingly, we hold that the ADA preempts Miller’s Sabine Pilot claim because the claim relates to the transportation

services FOC provides, and if allowed, would amount to the enactment or

enforcement of a state law. [6]

The Eighth Circuit’s

decision in Botz v. Omni Air

International supports our decision in this case. 286 F.3d at 495 . In Botz ,

Omni Air International terminated Anna Botz’s employment as a flight attendant

after she refused a flight assignment that she believed violated federal safety

regulations. Id. at 489 . Botz sued Omni under a Minnesota

whistleblower statute. Id. Omni asserted that the ADA

preempted Botz’s claim because the claim was related to Omni’s point-to-point

transportation services. Id. at

490, 492 . The court agreed, reasoning

that Botz’s whistleblower claim allowed her to refuse assignments without fear

of retaliation. Id. at 494 . Refusal of an assignment could potentially

disrupt Omni’s transportation services because federal law requires a certain

number of flight attendants on each flight.

See id.

The Eleventh Circuit’s decision in Branche v. Airtran Airways, Inc. uses a

similar analysis but applies it to different facts. 342 F.3d at 1252 . In Branche ,

Airtran Airways terminated Michael Branche’s employment as a safety inspector

after he reported Airtran’s violations of federal law to the FAA. Id. Branche sued Airtran under a Florida whistleblower statute. Id. Airtran asserted that the ADA preempted Branche’s claim because the claim was

related to Airtran’s services. Id. The court adopted the Fifth Circuit’s

definition of services from Hodges v.

Delta Airlines, Inc. , and held that only air carrier services having a

connection with or reference to the elements of air travel that are bargained

for by passengers are preempted by the ADA.

Id. at 1257–58; Hodges , 44 F.3d at 336 (“ Elements of the air carrier service bargain include items

such as ticketing, boarding procedures, provision of food and drink, and

baggage handling, in addition to the transportation itself .”). Branche’s claim did not relate to Airtran’s

services. Branche , 342 F.3d at 1257 . The

court stated, “[a] lthough some safety-related claims

may be tied to air carrier services, the very fact that they concern safety,

standing alone, is insufficient to demonstrate this nexus.” Id. at 1260 . In discussing Botz , the court stated:

As for the connection between retaliatory

discharge claims and airline services, we do not dispute the Eight Circuit’s

conclusion that the grounding of an airplane is related to airline services, in

particular, the transport of passengers from one place to another. However, in this case, the connection—or,

indeed, the potential connection—between Branche’s actions and air carrier

services is far more attenuated than in Botz . As the Eighth Circuit

said, if a flight attendant refuses to fly and a replacement cannot be found,

FAA regulations prevent the plane from leaving the gate, thereby disrupting

service. Here, by contrast, we are not

concerned with the withdrawal of clearance for a plane to take off based on

mechanical concerns, but instead only with Branche’s post hoc reporting

of a FAA violation. . . . Had Branche

claimed that Airtran fired him in retaliation for refusing to allow a plane to

take off due to safety concerns, this would present a situation closer to the

one at issue in Botz . But that is

not the claim before us.

Id. at 1262–63.

Factually, our case is closer to Botz than it is to Branche . Id. ; Botz ,

286 F.3d at 494–95. Miller’s Sabine Pilot claim is preempted because

he alleges that he refused to pilot aircraft and was fired for it, and the Sabine Pilot claim subjects his employer

to state law liability for firing a pilot for his refusal to fly. Unlike a post hoc report of a violation as in

Branche , or a refusal to perform an

illegal act unrelated to actual air flight, Miller’s claim directly impinges on

the provision of air carrier services. See Sabine Pilot , 687 S.W.2d at 735 . We therefore hold

that the trial court properly granted FOC’s summary judgment on Miller’s Sabine Pilot wrongful discharge

claim.

We note the limited

applicability of our holding. The ADA would not preempt a Sabine Pilot claim against an air carrier that is not related to

the air carrier’s prices, routes, or services.

See 49 U.S.C. § 41713 (b)(1).

Contract Claims

In his fourth issue, Miller contends the trial court erred in granting

summary judgment on his breach of contract claims. RAC and RTA attacked the breach of contract

claims with a no-evidence motion for summary judgment, while FOC filed a

traditional motion for summary judgment.

A. RAC and

RTA’s Summary Judgment

In their no-evidence motion for summary judgment, RAC and

RTA contended that Miller produced no evidence that an employment contract

existed. A contract that alters the

at-will employment relationship must “unequivocally indicate [the employer’s]

definite intent to be bound not to terminate the employee except under clearly

specified circumstances.” Brown , 965 S.W.2d at 502 ; see also Midland Judicial Dist. Cmty. Supervision & Corr. Dep’t v. Jones ,

92 S.W.3d 486, 487 (Tex. 2002).

In a Rule 166a(i)

no-evidence summary judgment, the movant represents that no evidence exists as

to one or more essential elements of the non-movant’s claims, upon which the

non-movant would have the burden of proof at trial. Tex.

R. Civ. P . 166a(i). The non-movant then must

present evidence raising a genuine issue of material fact on the challenged

elements. Id. A no-evidence summary judgment is essentially

a pre-trial directed verdict. Bendigo v.

City of Houston , 178 S.W.3d 112 , 113–14

( Tex. App.—Houston [1st Dist.] 2005, no pet.); Jackson v. Fiesta Mart, Inc. , 979 S.W.2d 68 ,

70–71 (Tex. App.—Austin 1998, no pet.).

On review, we ascertain whether the non-movant produced more than a

scintilla of probative evidence to raise a genuine issue of material fact. Jackson , 979 S.W.2d at

70–71. More than a scintilla of evidence

exists if the evidence “‘rises to a level that would enable reasonable and

fair-minded people to differ in their conclusions.’” King

Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex.

2003) (quoting Merrell Dow Pharm., Inc.

v. Havner , 953 S.W.2d 706, 711 (Tex.

1997)). If the evidence does no more

than create a mere surmise or suspicion of fact, less than a scintilla of

evidence exists. Chapman , 118 S.W.3d at 751 .

To defeat a no-evidence motion for summary judgment, the respondent is

not required to marshal its proof; its response need only point out evidence

that raises a fact issue on the challenged elements. Tex.

R. Civ. P . 166a(i) cmt.

Miller

received a letter from RAC in November of 1997 offering him employment as a

pilot. Miller accepted the offer by

signing the last page of the letter, as requested by RAC. Miller asserts that as a government

contractor, RAC promised that it would employ Vietnam

veterans and advance them in employment.

See 38 U.S.C. § 4212 (a)(1) (Supp.

III 2003). Miller indicated on his RAC

employment application that he wanted to participate in the Vietnam veterans’ affirmative action program. The RAC employment application states:

Raytheon Aircraft Company is a government contractor

subject to Section 503 of the Rehabilitation Act of 1973 and Section 402 of the

Vietnam Era Veterans Readjustment Assistance Act of 1974. These acts require this company to take action

to employ and advance in employment, in accordance with its policies, qualified

handicapped/disabled individuals, disabled veterans and veterans of the Vietnam era.

If you have such a handicap/disability, or you are a disabled veteran

and would like to be considered under the Affirmative Action Program, please

complete the information requested below.

Miller also executed an employee

assignment agreement and an employee confidentiality agreement at the request

of RAC. In the assignment agreement,

Miller gives RAC permission to search his person or vehicle and he agrees that

any inventions he creates or patents he obtains while working at RAC will

become the exclusive property of RAC.

The agreement does not recite any consideration. In the confidentiality agreement, Miller

promises not to disclose confidential information to anyone outside of RAC in

consideration of payment of his salary.

Miller also executed a compensation agreement that set forth his salary

in terms of the amount he was to receive every two weeks. In addition, RTA’s policy manual contains a

ten-year pay scale.

This

evidence does not unequivocally indicate RAC’s or

RTA’s intent to be bound not to terminate Miller except under clearly specified

circumstances. See Brown , 965

S.W.2d at 502 . While the federal

affirmative action program requires RAC and RTA to hire and advance Vietnam veterans, the program in no way limits an

employer’s ability to discharge employees at will, regardless of any Vietnam veteran status. See 38

U.S.C. § 4212 (a)(1). RTA’s policy

manual specifically states that it is an at-will employer, and RTA “reserves

the right to terminate employment for any reason at any time.” The policy manual also expressly states that

it does not constitute a contract. See Fed. Express Corp. v. Dutschmann , 846 S.W.2d 282, 283 (Tex. 1993) (“A disclaimer in

an employee handbook, such as the one included by Federal Express, negates any

implication that a personnel procedures manual places a restriction on the

employment at will relationship.”).

The other evidence cited by Miller,

including the offer letter and employment agreements, also does not indicate

any intent

on the part of RAC or RTA to be bound not to terminate Miller except under clearly

specified circumstances. See Jones , 92 S.W.3d at 487–88 (holding offer letter that contained

statements of annual salary and general statement that salary is based on

future performance did not create employment contract); Brown ,

965

S.W.2d at 502 ( “An employee who has no formal agreement with his

employer cannot construct one out of indefinite comments, encouragements, or

assurances.”); Rios

v. Tex. Commerce Bancshares, Inc . , 930

S.W.2d 809, 815 ( Tex. App.—Corpus Christi 1996, writ denied)

(holding letter offering employment was not contract because it merely stated

salary and other benefits but did not set term of employment); Massey

v. Houston Baptist Univ. , 902 S.W.2d 81 , 83–84 (Tex. App.—Houston

[1st Dist.] 1995, writ denied) (holding written employment contract did not

alter at-will employment relationship because contract contained no term

limiting employer’s ability to terminate employee at will); Lee-Wright,

Inc. v. Hall , 840 S.W.2d 572, 578 (Tex. App.—Houston [1st Dist.]

1992, no writ)

(holding at-will status of employment relationship altered by agreement to

employ plaintiff for specific number of years). Miller failed to produce more

than a scintilla of evidence that he had an employment contract with RAC or

RTA. See

Jackson ,

979 S.W.2d at 70–71. The trial court

therefore properly granted RAC and RTA’s summary judgment on Miller’s breach of

contract claims.

B. FOC’s

Summary Judgment

In its traditional motion for summary judgment, FOC

contends that it established as a matter of law that no employment contract

existed between itself and Miller that would limit its ability to terminate

Miller’s employment at will. Miller

contends that in addition to the evidence cited above, the following evidence

establishes an employment contract between himself and FOC.

The combination agreement between FOI and RTA provides:

At the Effective Time, except as

specifically provided below in this Section 6.2 , [FOC] hereby agrees to

assume, and agrees to pay, perform and discharge when due, all obligations and

liabilities for compensation and employee benefits, and all other liabilities

which are attributable to [FOI’s] or [RTA’s] employment of any employee, agent

or independent contractor prior to the Effective Time without regard to whether

such obligations or liabilities arose prior to or subsequent to the Effective

Time.

In December 2001, RTA’s

president, Gary Hart, wrote to RTA’s pilots to announce that all pilots would

be offered the opportunity to continue flying for FOC. A few weeks later, Miller received a letter

from Kenneth Ricci, Chairman and CEO of FOI.

The letter stated, “all pilot positions will be retained and all pilots

will be assured of their current flying positions and seniority” at FOC. The letter also contained a comparison

between Miller’s salary at RTA and his new salary at FOC. Miller received a letter offering him

employment at FOC in February of 2002.

He accepted the offer by signing at the bottom of the letter, as

requested by FOC.

While

FOC expressly agreed to assume the contractual obligations of RTA in the

combination agreement, this did not create an employment contract between

Miller and FOC. As we determined above,

Miller did not have an employment contract with RAC and RTA; thus, there was no

contract for FOC to assume. See Brown , 965 S.W.2d at 502 .

The letters Miller received from FOC

executives also do not indicate FOC’s intent to be bound not to terminate Miller

except under clearly specified circumstances.

See id . None of Miller’s employment documents

guarantees him a minimum term of employment, or otherwise limits FOC’s ability

to terminate his employment at will. See Jones , 92 S.W.3d at 487–88 (holding offer letter that contained

statements of annual salary and general statement that salary is based on

future performance did not create employment contract); Brown ,

965

S.W.2d at 502 ( “An employee who has no formal agreement with his

employer cannot construct one out of indefinite comments, encouragements, or

assurances.”); Travel Masters, Inc. v.

Star Tours, Inc. , 827 S.W.2d 830 , 832–33

n.2 (Tex. 1991) (noting mere fact that employee was paid on monthly basis,

without any other evidence, failed to establish that she was not at-will employee); Rios , 930 S.W.2d at

815

(holding letter offering employment was not contract because it merely stated

salary and other benefits but did not set term of employment); Massey ,

902 S.W.2d at 83–84 (holding written employment contract did not alter at-will

employment relationship because contract contained no term limiting employer’s

ability to terminate employee at will); Hall , 840 S.W.2d at 578 (holding at-will status

of employment relationship altered by agreement to employ plaintiff for

specific number of years); Ryan v. Superior Oil Co. , 813

S.W.2d 594 , 595–96 (Tex. App.—Houston [14th Dist.] 1991, writ denied) (holding letters

written to employees before merger concerning plan for retaining employees

after transition do not form employment contract).

Like the RTA policy

manual, the FOC policy and procedures manual provides that all employees at FOC

are employed on an “at will” basis, and expressly states that it does not

constitute a contract. See Matagorda County Hosp. Dist. v. Burwell ,

189 S.W.3d 738 , 739–40 (Tex. 2006) (holding employer’s manual stating that

employee “may” be dismissed for cause did not modify at-will employment by

requiring that dismissal be only for cause); Dutschmann , 846 S.W.2d at 283 (“A disclaimer

in an employee handbook, such as the one included by Federal Express, negates

any implication that a personnel procedures manual places a restriction on the

employment at will relationship.”).

Sullivan’s affidavit also states that Miller’s employment at FOC was at

will, and that FOC never offered Miller an employment contract.

FOC introduced evidence affirmatively

establishing that it employed Miller at will.

Accordingly, we hold that FOC has established as a matter of law that

Miller’s employment at FOC was at will. See Brown , 965 S.W.2d at 502 (holding employment is

presumed to be at will absent specific contrary agreement). T he trial court’s

summary judgment in favor of FOC on Miller’s breach of contract claim was thus

proper.

Common Law Claims

In his fifth issue, Miller contends the trial court erred in granting

summary judgment on his common law claims.

A. Promissory Estoppel

Miller contends the trial court erred in granting summary judgment on his promissory

estoppel claims. RAC, RTA, and FOC

respond that Miller cannot maintain promissory estoppel claims in this case

because there was no detrimental reliance as a matter of law.

The elements of a

promissory estoppel claim are: (1) a promise, (2) foreseeability of reliance

thereon by the promisor, and (3) substantial reliance by the promisee to his

detriment. English v. Fischer ,

660 S.W.2d 521, 524 (Tex.

1983). Miller relies upon Roberts v. Geosource Drilling Services, Inc. , in which the employer,

Geosource, promised Roberts employment, inducing him to quit his former

job. 757 S.W.2d 48, 49 (Tex. App.—Houston [1st Dist.] 1988, no writ). This court held that Roberts could maintain a

promissory estoppel claim even through Roberts and Geosource had expressly

contracted that the employment would be at will. [7] Id. at 50 . We stated, “[i]t is no answer that the

parties’ written contract was for an employment-at-will, where the employer

foreseeably and intentionally induces the prospective employee to materially

change his position to his expense and detriment, and then repudiates its

obligations before the written contract begins to operate.” Id.

Miller’s promissory estoppel claims

fail as a matter of law because Miller did not rely on any promise to his

detriment. The evidence in this case

that FOC hired Miller in early 2002 is undisputed, albeit for a short

time. Moreover, Miller was not induced

to leave his former job—rather, that position was eliminated incident to the

creation of FOC. FOC did not promise to

retain Miller for any length of time.

Thus, even under Roberts ,

there could be no detrimental reliance in this case as a matter of law. [8] See English , 660 S.W.2d at 524 ; Roberts ,

757 S.W.2d at 50–51. We therefore hold

that t he trial court properly granted summary judgment on Miller’s

promissory estoppel claims.

B. Negligent

Misrepresentation

Miller contends the trial

court erred in granting summary

judgment on his negligent misrepresentation claims. RAC, RTA, and FOC respond that the statements

Miller complains of constitute promises of future conduct rather than

statements of existing fact and are therefore not actionable.

The elements of a negligent misrepresentation claim are: (1)

the representation is made by a defendant in the course of his business, or in

a transaction in which he has a pecuniary interest; (2) the defendant supplies

“false information” for the guidance of others in their business; (3) the

defendant did not exercise reasonable care or competence in obtaining or

communicating the information; and (4) the plaintiff suffers pecuniary loss by

justifiably relying on the representation.

Henry Schein, Inc. v. Stromboe , 102 S.W.3d 675 , 686 n.24 (Tex.

2002); McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests , 991 S.W.2d 787, 791 (Tex. 1999); Fed. Land Bank Ass’n v. Sloane , 825 S.W.2d 439, 442 (Tex. 1991). To establish a negligent

misrepresentation claim, the plaintiff must also prove that the defendant

misrepresented an existing fact

rather than a promise of future conduct. See Sloane ,

825 S.W.2d at 442 ; Dallas Fire Fighters Ass’n v. Booth Research Group, Inc. , 156 S.W.3d 188, 194 ( Tex. App.—Dallas 2005,

pet. denied); Swank

v. Sverdlin , 121 S.W.3d 785, 802 ( Tex. App.—Houston [1st

Dist.] 2003, pet. denied); Allied Vista, Inc. v. Holt , 987

S.W.2d 138, 141 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

Miller bases his negligent misrepresentation claims on two

specific statements. In December 2001,

RTA’s president, Gary Hart, wrote to RTA’s pilots to announce that all pilots

would be offered the opportunity to continue flying for FOC. A few weeks later, Kenneth Ricci, Chairman

and CEO of FOI, sent a letter to Miller, stating that “all pilot positions will

be retained and all pilots will be assured of their current flying positions

and seniority” at FOC. Miller asserts

that these statements were false because the master transaction agreement

creating FOC provides:

4.5 Employees . Prior to the Closing Date, the Parties will

identify the employees of [FOI] and [RTA] that are to be offered employment

with [FOC] as of the Closing Date and shall make a formal offer of employment

to each such Person and shall inform each such Person of the compensation and

benefits for which such Person will be eligible as an employee of [FOC].

Miller’s negligent misrepresentation

claims fail as a matter of law because the statements made by Hart and Ricci

were promises of future conduct rather than statements of existing fact. See

Dallas Fire Fighters Ass’n , 156 S.W.3d at 195 (holding statements

about movement of ranks consisted of expectation of future conduct, not

existing fact, and were not actionable) ; Swank ,

121

S.W.3d at 802–03 (holding oral promises not to fire plaintiff,

not to take control of AMPS, and not to exercise stock options were promises of

future conduct, not existing fact) ; Holt , 987 S.W.2d at

141 (holding representations defendant would provide all equipment necessary to

start Louisiana plant and would pay plaintiff $55,000 annually were promises of

future conduct and not misrepresentations of existing fact); Miksch v. Exxon Corp. , 979 S.W.2d 700, 706

(Tex. App.—Houston [14th Dist.] 1998, pet. denied) (holding

alleged oral promise not to terminate plaintiff was not misrepresentation of

existing fact but was promise to refrain from

taking action in future). The trial

court therefore properly granted summary judgment on Miller’s negligent

misrepresentation claims. [9]

C. Fraud

Miller contends the trial court erred in granting summary judgment on his fraud claims. RAC, RTA, and FOC respond that Miller’s fraud

claims are barred because his employment was at will.

The elements of fraud are: (1) a material representation that was false when

made; (2) when the representation was made, the speaker knew it was false or

made it recklessly as a positive assertion without any knowledge of its truth;

(3) the speaker made the representation with the intent that the other party

should act upon it; (4) the party actually and justifiably relied on the

representation; and (5) thereby suffered injury. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co. , 51 S.W.3d 573, 577 (Tex.

2001) . “For a promise of future performance to be

the basis of actionable fraud, it must have been false at the time it was

made.” Schindler v. Austwell Farmers

Coop. , 841 S.W.2d 853, 854

(Tex. 1992).

Miller bases his fraud

claims on the statements by Hart and Ricci promising that all RTA pilots would

be offered positions at FOC. Miller

believes these statements were false when they were made because the master

transaction agreement seems to indicate that not all RTA pilots would be

offered positions at FOC.

We have already determined that

Miller’s employment with RAC, RTA, and FOC was at will. See

Brown ,

965

S.W.2d at 502 (holding employment is presumed to be at will absent specific

contrary agreement). This

court has held that “[a]n ‘at will’ employee is barred from bringing a cause of

action for fraud against his employer based upon the employer’s decision to

discharge the employee.” Leach v. Conoco, Inc. , 892 S.W.2d

954, 961 (Tex. App.—Houston [1st Dist.] 1995, writ dism’d w.o.j.); see also Brown v. Swett & Crawford

of Tex., Inc. , 178 S.W.3d 373 , 379–80 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding status

as at-will employee precludes claim for fraudulent inducement as matter of

law). Miller’s fraud claims based on the

statements that FOC would hire all RTA pilots are therefore precluded as a

matter of law because Miller’s employment was at will. The trial court properly granted summary

judgment on Miller’s fraud claims.

D. Civil Conspiracy

Miller contends the trial court erred in granting summary

judgment on his civil conspiracy claims.

FOC filed a traditional summary judgment motion on Miller’s civil

conspiracy claim, alleging that Miller’s claim fails as a matter of law because

it is not supported by an underlying tort. RAC and RTA filed a no-evidence summary

judgment motion, alleging Miller had produced no evidence of a meeting of the

minds.

A civil conspiracy is

a combination by two or more persons to accomplish an unlawful purpose or to

accomplish a lawful purpose by unlawful means. Firestone Steel Prods. Co. v. Barajas ,

927 S.W.2d 608, 614 (Tex.

1996). The essential elements of a civil

conspiracy are: (1) two or more persons; (2) an object to be accomplished; (3)

a meeting of minds on the object or course of action; (4) one or more unlawful,

overt acts; and (5) damages as the proximate result. Tri v. J.T.T. , 162 S.W.3d 552, 556

(Tex. 2005); Massey v. Armco Steel Co. ,

652 S.W.2d 932, 934 (Tex.

1983). Independent liability for civil

conspiracy does not exist. Four

Bros. Boat Works, Inc. v. Tesoro Petroleum Cos. , No. 14-05-00498-CV,

2006 WL 3589480, at *10 (Tex. App.—Houston [14th Dist.] Dec. 12, 2006, no pet.

h.). Civil conspiracy is considered a

derivative tort because a defendant’s liability depends upon its participation

in some underlying tort for which the plaintiff seeks to hold the defendant

liable. Tilton v. Marshall , 925 S.W.2d 672, 681 (Tex. 1996) . An actionable conspiracy must

consist of acts that would have been actionable against the conspirators

individually. Int’l Bankers Life Ins.

Co. v. Holloway , 368 S.W.2d

567, 581 (Tex. 1963). Thus, to prevail on a civil conspiracy claim,

the plaintiff must show the defendant was liable for some underlying tort. See

Trammell Crow Co. No. 60 v. Harkinson , 944 S.W.2d 631, 635 (Tex.

1997); Tilton , 925 S.W.2d at 681 .

Miller

asserts that RAC, RTA, FOI, and FOC engaged in a civil conspiracy to wrongfully

discharge pilots who refused to fly aircraft in violation of federal law. As evidence of this conspiracy, Miller

produced the affidavits of Rusty Wharton and Reinhardt Hanold, who

testified that John Topliff informed them that he had been instructed by his

superiors at RTA to identify for termination any pilots who would not operate

aircraft that had been issued flight releases.

Wharton and Hanold were both RTA pilots, and Topliff was RTA’s fleet

manager. Topliff also testified that

executives at FOC pressured pilots to fly aircraft in violation of federal law

as well. Additionally, Miller cites the

master transaction agreement and the combination agreement, which suggest that some

RTA pilots might not be offered employment at FOC.

As we determined above, the ADA preempts Miller’s Sabine Pilot wrongful discharge claim against FOC. Miller’s civil conspiracy claim against FOC

therefore fails as a matter of law because Miller cannot assert a wrongful

discharge claim against FOC under Sabine

Pilot . A civil conspiracy claim

against FOC will not lie unless evidence demonstrates that FOC participated in

some underlying actionable conduct. Tilton , 925 S.W.2d at 681 ; Ortiz v.

Collins , 203 S.W.3d 414 , 422–23

(Tex. App.—Houston

[14th Dist.] 2006, no pet.) (holding that where summary judgment was proper

on underlying fraud claim due to lack of justifiable reliance, summary judgment

was also proper on conspiracy to defraud claim); RTLC AG Prods., Inc. v.

Treatment Equip. Co. , 195 S.W.3d 824, 833 (Tex. App.—Dallas 2006, no

pet.) (holding plaintiff could not maintain civil conspiracy claim because it

could not establish underlying tort) .

Additionally, Miller produced no

evidence that RAC and RTA had a meeting of the minds to perform an unlawful act

necessary to establish his civil conspiracy claims. See

Alford v. Thornburg , 113 S.W.3d 575 ,

588 ( Tex. App.—Texarkana 2003, no

pet.) (holding plaintiff produced no more than scintilla of evidence of meeting

of minds); Boales v. Brighton Builders, Inc. , 29 S.W.3d 159, 164 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (holding

plaintiff produced no more than scintilla of evidence of meeting of minds); J.

Parra e Hijos,

S.A. de C.V. v.

Barroso , 960 S.W.2d 161, 170 (Tex. App.—Corpus Christi 1997, no pet.)

(holding plaintiff produced no evidence of meeting of minds). The trial court therefore properly granted

summary judgment on Miller’s civil conspiracy claims.

E. Negligence

Miller contends the trial

court erred in granting summary

judgment on his negligence claims. RAC,

RTA, and FOC respond that an employer owes an at-will employee no duty of care

in terminating his employment.

A negligence cause of

action has three elements: (1) a legal duty owed by one person to another, (2) a

breach of that duty, and (3) damages proximately caused by the breach. D.

Houston, Inc. v. Love , 92 S.W.3d 450, 454 (Tex.

2002). The threshold inquiry in a

negligence case is duty. Centeq Realty, Inc. v. Siegler , 899

S.W.2d 195, 197 (Tex. 1995). The Texas Supreme Court has held that an

employer owes no duty of care in discharging an at-will employee. See

Tex.

Farm Bureau Mut. Ins. Cos. v. Sears , 84 S.W.3d 604, 609 (Tex. 2002).

The court stated:

By definition, the employment-at-will

doctrine does not require an employer to be reasonable, or even careful, in

making its termination decisions. If the

at-will doctrine allows an employer to discharge an employee for bad reasons

without liability, surely an employer should not incur liability when its

reasons for discharge are carelessly formed.

Engrafting a negligence exception on our at-will employment

jurisprudence would inevitably swallow the rule.

Id.

Miller contends that RAC,

RTA, and FOC were negligent in terminating his employment. As we determined above, Miller’s employment

with RAC, RTA, and FOC was at will. See Brown , 965 S.W.2d at 502

(holding employment is presumed to be at will absent specific contrary

agreement). RAC, RTA, and

FOC therefore did not owe Miller a duty of care in terminating his employment. Miller’s negligence claims fail as a matter of

law. See

Wal-Mart

Stores, Inc. v. Canchola , 121 S.W.3d 735 , 740 ( Tex. 2003); Sears ,

84 S.W.3d at 609 . The trial court properly granted summary

judgment on Miller’s negligence claims.

F. Intentional Infliction

of Emotional Distress

Miller contends the trial

court erred in granting

summary judgment on his intentional infliction of emotional distress

claims. Miller maintains that he

suffered severe emotional distress because he was required to pilot aircraft

that were not safe to fly, and because he did not know whether RTA’s aircraft

contained latent mechanical defects due to other pilots having concealed such

defects at the request of RAC and RTA.

The elements of

intentional infliction of emotional distress are: (1) the defendant acted

intentionally or recklessly; (2) the conduct was extreme and outrageous; (3)

the defendant’s actions caused the plaintiff emotional distress; and (4) the

emotional distress that the plaintiff suffered was severe. City of Midland

v. O’Bryant , 18 S.W.3d 209, 216 (Tex.

2000). To be considered extreme and

outrageous, conduct must be so outrageous in character, and so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as

atrocious and utterly intolerable in a civilized community. Id. at 217 . “[A] claim for intentional infliction of

emotional distress does not lie for ordinary employment disputes.” GTE Sw., Inc. v. Bruce , 998 S.W.2d

605 , 612–13 (Tex. 1999). T he mere fact of termination of employment, even

if the termination is wrongful, is not legally sufficient evidence that the

employer’s conduct was extreme and outrageous. Sw. Bell Mobile Sys., Inc. v. Franco ,

971 S.W.2d 52, 54 (Tex. 1998).

The evidence Miller

produced demonstrates that he suffered emotional distress because FOC

terminated his employment and he was required to search for a new job. Even if FOC wrongfully terminated Miller,

this fact alone would not support a claim for intentional infliction of

emotional distress. See id. (“ However, the mere fact

of termination of employment, even if the termination is wrongful, is not

legally sufficient evidence that the employer’s conduct was extreme and

outrageous under the rigorous standard that we established in Twyman .”). The

trial court therefore properly granted summary judgment on Miller’s intentional

infliction of emotion distress claims.

Wage and Hour Claims

Miller contends the

trial court erred in granting RAC and RTA’s motion for summary judgment on his

wage and hour claims. Miller maintains

that RAC and RTA only paid him for six weeks of accrued vacation time even

though he was entitled to eight weeks’ pay.

Miller asserts that RTA is liable for these two weeks of vacation pay

because RTA owns a controlling interest in FOC.

In their traditional motion for summary judgment, RAC and RTA assert

that they are not liable for these wages as a matter of law because they transferred

their liability for Miller’s wage and hour claims to FOC.

In his affidavit,

William Wallisch states:

In connection with the creation of

Flight Options, L.L.C., Travel Air and Flight Options, Inc. agreed that Flight

Options, L.L.C. would assume any and all liabilities related to any vacation

time that had been accrued by Travel Air pilots, including Plaintiff, prior to

the this [sic] transaction.

An examination of the

combination agreement confirms Wallisch’s statements.

This undisputed evidence

establishes as a matter of law that RAC and RTA transferred their liability for

Miller’s wages to FOC. See Tex. R. Civ.

P . 166a(c); KPMG Peat Marwick , 988 S.W.2d at 748 . The only

evidence Miller cites in support of his wage and hour claims against RAC and

RTA is Wallisch’s testimony that RTA owns a controlling interest in FOC. The fact that RTA now owns a

controlling interest in FOC does not make it liable for these wages. FOC is organized as a Delaware

limited liability company and u nder Delaware law, the members of an L.L.C. are generally

not liable for the obligations of the L.L.C., absent a showing that the court

should pierce the corporate veil. See

Del. Code Ann . tit. 6, §

18-303(a) (2005); Irwin &

Leighton, Inc. v. W.M. Anderson Co. ,

532 A.2d 983 , 987–89 (Del. Ch. 1987) . The trial court therefore properly granted

summary judgment on Miller’s wage and hour claims against RAC and RTA.

Conclusion

We hold that (1) the trial court did

not abuse its discretion in refusing to strike William Wallisch’s affidavit,

(2) RAC and RTA established that they terminated Miller’s employment for a

reason other than his refusal to perform illegal acts, negating the causation

required for a Sabine Pilot claim as

a matter of law, (3) the Airline Deregulation Act of 1978 preempts Miller’s Sabine Pilot wrongful discharge claim

against FOC, and (4) the trial court properly granted summary judgment on

Miller’s breach of contract and common law claims. We therefore affirm the trial court’s orders

granting summary judgment.

Jane Bland

Justice

Panel consists of Chief Justice

Radack and Justices Jennings and Bland.

[1] Sabine

Pilot Serv., Inc. v. Hauck , 687 S.W.2d 733, 735 (Tex. 1985).

[2] 49 U.S.C. § 41713 (b)(1) (2000).

[3] FOC also maintains that the trial court’s summary

judgment properly disposed of Miller’s wrongful discharge claim because he was

fired for reasons other than his refusal to perform an illegal act, and any

action that FOC requested him to take would not have resulted in criminal

penalties. As we agree with FOC’s

preemption argument, we do not address the other potential grounds for the

trial court’s summary judgment.

[4] The Texas Supreme Court consolidated two negligence

cases for the Kiefer opinion. Cont’l Airlines, Inc. v. Kiefer , 920 S.W.2d 274, 275 (Tex. 1996). In the first case, a passenger was injured

when a briefcase fell from an overhead storage bin and struck her on the

head. Id. In the second case, the plaintiff claimed he

was injured by the airline’s negligent failure to provide meet and assist

services. Id. at 275–76.

[5] Miller contends FOC’s certificate was not properly

before the trial court because it was not attached to FOC’s supplemental motion

for summary judgment. FOC produced the

certificate for the first time in its reply to Miller’s response to the

supplemental motion for summary judgment.

Miller did not move to strike this evidence and the trial court noted

that it considered the “pleadings on file” in its summary judgment order. As the Texas Supreme Court has explained, the

trial court’s ruling on a summary judgment is based upon the “issues raised in the motion, response, and any

subsequent replies.” Stiles

v. Resolution Trust Corp. , 867 S.W.2d 24, 26 (Tex.

1993). The certificate was therefore

properly before the trial court.

[6] Additionally, we note that Congress amended the ADA in the year 2000 and added a provision creating a

federal whistleblower cause of action for employees discharged or discriminated

against for reporting an employer’s violations of federal law. 49 U.S.C.

§ 42121 (2000). This whistleblower cause

of action provides a uniform system of recourse for employees discharged or

discriminated against for reporting their employers’ violations of federal law. Id. While we

recognize that Miller was not a whistleblower in this case, he had an available

remedy if FOC had terminated him for reporting a violation of federal law. See

id.

The fact that federal law expressly addresses whistleblower claims

against air carriers strengthens our conclusion that the ADA

preempts Miller’s Sabine Pilot

wrongful discharge claim arising from his refusal to fly aircraft in violation

of federal law. Compare Delta Air Lines, Inc. v. Black , 116 S.W.3d 745, 756 (Tex.

2003) (finding preemption of contract claim where FAA had created regulations

to resolve dispute involved in plaintiff’s breach of contract claim), with Kiefer ,

920 S.W.2d at 281 (finding no preemption of common law negligence claims when

Congress and FAA had created no method to resolve disputes involving negligence);