Simonds v. Pan American CV-03-011-M 09/30/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Don T. Simonds, Plaintiff

v. Civil No. 03-11-M Opinion No.

Pan American Airlines, Inc., a/k/a Pan American Airways Corp., a/k/a Pan American Airways, Inc.; David A. Fink; and P. Barry Berminqham, Defendants

O R D E R

In November of 2002, Don T. Simonds filed this action

against his former employer and two of its corporate executives

(collectively, "Pan Am") in Florida state court, claiming he was

discharged in violation of Florida's Whistleblower's Act,

, et seg. Pan Am then removed the proceeding to

the United States District Court for the Middle District of

Florida. Subseguently, the matter was transferred to this court,

pursuant to

.

Pending before the court is Pan Am's motion to dismiss, on

grounds that Simonds' claim is pre-empted by the Airline

Deregulation Act,

(the "ADA"). Alternatively, pointing to the fact that Simonds' already arbitrated (and won) a

claim that he was wrongfully discharged under a collective

bargaining agreement. Pan Am says his whistleblower claim is

barred by the doctrine of res judicata. Simonds objects.

Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must "accept as true the well-pleaded factual

allegations of the complaint, draw all reasonable inferences

therefrom in the plaintiff's favor and determine whether the

complaint, so read, sets forth facts sufficient to justify

recovery on any cognizable theory." Martin v. Applied Cellular

Tech., Inc.,

(1st Cir. 2002) . Dismissal is

appropriate only if "it clearly appears, according to the facts

alleged, that the plaintiff cannot recover on any viable theory."

Lanqadinos v. American Airlines, Inc.,

(1st Cir.

2000) . See also Gorski v. N.H. Dep't of Corr.,

(1st Cir. 2002) ("The issue presently before us, however, is not

what the plaintiff is reguired ultimately to prove in order to

prevail on her claim, but rather what she is reguired to plead in

2 order to be permitted to develop her case for eventual

adjudication on the merits.") (emphasis in original).

Background1

Viewed in the light most favorable to Simonds, the pertinent

facts appear as follows. Simonds is an experienced commercial

pilot, with approximately 20,000 hours of flight time, who, over

the course of his lengthy career, had never been disciplined by

an employer or the FAA. On January 3, 2001, he was scheduled to

fly Pan Am Flight 2 - a four-leg flight from Portsmouth, New

Hampshire to Bangor, Maine, to Pittsburgh, Pennsylvania, to

Sanford, Florida, and then back to Portsmouth. The entire trip

should have reguired approximately 8 hours of flight time and 13

and one-half hours of duty time. That schedule would have been

well within the reguirements of a Federal Aviation Regulation

("FAR"), which provides that a pilot may not be assigned, nor may

1 To provide a more complete picture of the background to the parties' current dispute, the court has drawn some of the facts from the opinion in Pan Am. Airways Corp. v. Air Line Pilots Assoc., Int'l,

(D.D.C. 2002), in which the court affirmed a decision by an arbitration panel concluding that Pan Am lacked just cause to terminate Simonds' employment. Neither the arbitrators' decision nor the district court's opinion affirming that decision is at issue in this case.

3 he or she accept assignment of, a schedule that requires duty for

longer than 16 hours in any 24-hour period.

.

As it turned out, however, Simonds' aircraft experienced

mechanical problems after successfully completing the first three

legs of the scheduled journey. Following a lengthy delay on the

ground in Sanford, Simonds concluded that he could no longer

complete his flight without running afoul of the 16-hour rule set

forth in the pertinent FAR. Accordingly, he reported his

concerns to Pan Am's director of operations. Captain Jim Baker.2

After discussing his interpretation of the pertinent FAR

with Baker, Simonds informed Baker that he and the two other

members of his flight crew would not fly the aircraft. Baker

disagreed with Simonds' interpretation and told Simonds and his

crew that they were exposing themselves to serious discipline if

they did not complete the flight. Notwithstanding that warning,

Simonds left the aircraft (with 149 passengers on board) and

checked into a local hotel. Baker then terminated his employment

2 If the FAA determined that Simonds had violated the FAR, it could have punished him by suspending his pilot's license for 15 to 90 days, without pay. Pan Am. Airways,

n .2.

4 for insubordination. The other two crew members eventually

agreed to fly, after Pan Am threatened them with termination as

well. They and Captain Baker then completed the flight back to

Portsmouth.3

Subseguently, the Air Line Pilots Association filed a

grievance on behalf of Simonds. The matter was presented to a

panel of three arbitrators and Simonds prevailed. Specifically,

the arbitration panel concluded that Pan Am did not have just

cause to terminate him for insubordination. It then directed the

company to reinstate Simonds to his former position, with full

back pay, interest, and other benefits. That decision was

affirmed on appeal to the United States District Court for the

District of Columbia. Pan Am.

Five months later, Simonds brought this action in Florida

state court, seeking damages under the Florida whistleblower

statute. As noted above, that suit was removed to federal

3 Initially, the FAA brought enforcement actions against Pan Am and the other two members of Simonds' crew, but eventually withdrew the complaints against the crew members because they flew under threat of losing their jobs. Pan Am. Airways,

.

5 district court and, eventually, transferred to this court.

Because the court agrees that Simonds' state law employment

discrimination claim is pre-empted by the ADA, it need not

address the merits of Pan Am's alternate basis for dismissal.

Discussion

I. Simonds' State Law Claim.

Simonds asserts that when Pan Am discharged him for refusing

to fly the last leg of his assigned route (which he believed

would have violated a FAR), it violated Florida's whistleblower

statute. That statute provides, in pertinent part:

An employer may not take any retaliatory personnel action against an employee because the employee has:

•k -k -k

(3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.

.

In support of his view that his state whistleblower claim is

not pre-empted by the ADA, Simonds advances two arguments.

6 neither of which is particularly compelling. First, while he

acknowledges the pre-emption provision of the ADA, he points out

that the underlying arbitration decision (which is not at issue

in this case) was based on an application of the Railway Act, not

the ADA. That, of course, is true. It does not, however,

undermine Pan Am's assertion in this case: that provisions of

federal law (i.e., the ADA) expressly pre-empt Simonds' state law

whistleblower claim.

Next, Simonds points to a section of the Florida

whistleblower statute which provides that, "[t]his act does not

diminish the rights, privileges, or remedies of an employee or

employer under any other law or rule or under any collective

bargaining agreement or employment contract."

. Presumably, in enacting that statutory provision, the

Florida legislature intended to make clear that the rights and

remedies available under the state whistleblower statute were not

exclusive. That is to say, to the extent other causes of action

and remedies exist (e.g., a claim for breach of contract), they

remain available to a claimant seeking compensation under the

whistleblower statute. In short, the Florida whistleblower

7 statute expressly provides that it does not pre-empt any other

statutory or common law remedies available to an aggrieved

employee.

Importantly, however, the state statutory provision cited by

Simonds does not (nor could it) serve to nullify the pre-emptive

effect of federal law on a claim under that statute. See

generally U.S. Const, art. VI. See also Rose v. Arkansas State

Police,

(1986) ("There can be no dispute that the

Supremacy Clause invalidates all state laws that conflict or

interfere with an Act of Congress."); Louisiana Public Serv.

Comm'n v. Federal Communications Comm'n,

(1986)

("The Supremacy Clause of Art. VI of the Constitution provides

Congress with the power to pre-empt state law.").

II. The Airline Deregulation Act's Pre-emption Provisions.

The pre-emption provision of the ADA states, in pertinent

part:

[A] State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier . . . .

(b) (1) (emphasis supplied). In interpreting

that statutory provision, the Supreme Court has afforded it

extremely broad scope. See Morales v. Trans World Airlines,

Inc.,

(1992) ("[T]he key phrase, obviously, is

'relating to.' The ordinary meaning of these words is a broad

one - 'to stand in some relation; to have bearing or concern; to

pertain; refer; to bring into association with or connection

with' - and the words thus express a broad pre-emptive purpose.")

(citation omitted). See also American Airlines, Inc. v. Wolens,

(1995). In giving the pre-emption provision an

expansive scope, the Court noted the similarity between the ADA's

pre-emption provision and that of ERISA and concluded that it was

appropriate to "adopt the same standard here: State enforcement

actions having a connection with, or reference to, airline

'rates, routes, or services' are pre-empted" under the ADA.

Morales,

.

III. The Federal Whistleblower Protection Program.

In 2000, Congress enacted the Whistleblower Protection

Program ("WPP") as part of the ADA.

. The Court of Appeals for the Eight Circuit has described that program

as follows:

The [WPP] protects air-carrier employees who report actual or alleged air-carrier safety violations or who file proceedings regarding actual or alleged air- carrier safety violations. The Program is a detailed and comprehensive regulatory scheme. It specifies four classes of protected employee conduct, prescribes both the evidentiary and legal standards the Secretary of Labor must use to determine whether a violation has occurred and the remedy to be ordered, coordinates the duties and involvement of two separate federal agencies, and even includes modest penalties to deter unfounded or ineguitable complaints. The Program protects employees from retaliation by their employers for a variety of "whistleblowing conduct" based on any actual or alleged federal air-safety violation.

Botz v. Omni Air Int'l,

(8th Cir. 2002).

IV. Simonds' State Law Claim is Pre-empted.

The guestion presently before the court is whether the ADA,

as amended by the WPP, pre-empts Simonds' claim under the Florida

Whistleblower's Act. It does.

The Court of Appeals for the Eleventh Circuit recently

addressed precisely this guestion and concluded that the

plaintiff's claim under the Florida Whistleblower's Act was not

10 pre-empted by the ADA. Branche v. Airtran Airways, Inc., __ F.3d

,

(11th Cir. Aug. 21, 2003) . Nevertheless,

the court noted that its holding was limited to the specific

facts before it.

As our employment of this analytical modality indicates, it is the specifics of the retaliation claim, not the whistleblower statute, that appropriately determine pre-emption. Thus, retaliation claims brought under state whistleblower statutes must be evaluated on a case-by-case basis to determine the connection between the action in guestion and airline services.

I d . at * 12 n.9 (emphasis supplied). In reaching that

conclusion, the court cited the Eight Circuit's opinion in Botz

extensively.

In Botz, a flight attendant brought suit against her

employer - an air carrier - under Minnesota's whistleblower

statute, claiming she was wrongfully terminated when she refused

a flight assignment she believed would violate a FAR. Holding

that her claim was pre-empted by the ADA, the court concluded

that "[w]hen applied to the facts surrounding [plaintiff's]

discharge, the Minnesota whistleblower statute has a forbidden

connection with air-carrier services." Botz,

.

11 The court reasoned that because a flight attendant could, by

refusing a flight assignment, force the carrier to cancel a

flight, he or she could have a direct (and negative) impact on

the carrier's "service."

For any size carrier, a significant likelihood exists that the carrier will have to cancel the flight in order to comply with the FAR's flight-attendant staffing regulations. This is patently true when the flight attendant refuses the assignment within a few hours of the flight's scheduled departure. On that day at least, the air carrier will not be providing the service for which its customers have paid at one of its scheduled times. An air carrier cannot avoid this possibility even by adhering to every law, rule, and regulation - federal and state, for the Minnesota whistleblower statute authorizes refusals based on the flight attendant's objective, fact-based belief alone that the assignment is violative. This authorization to refuse assignments, and the protections that the whistleblower statute provides, have a forbidden connection with an air carrier's service under any reasonable interpretation of Congress's use of the word "service."

I d . at 495 (emphasis supplied).

With respect to the effect of the recently-enacted WPP, the

court concluded that it did not evidence any Congressional intent

to exclude from the ADA's broad pre-emption provision claims of

the sort brought by the plaintiff.

12 When it fashioned the WPP, Congress was surely aware of the ADA's express pre-emption provision. It was presumably aware, as well, that the Supreme Court had determined that the provision had a broad application and should be given an expansive interpretation. Given this, we would expect Congress to have directed language in the WPP to the issue of federal pre-emption only if it had been Congress's intent that the WPP not exert any pre-emptive effect upon state whistleblower provisions.

I d . at 497. Accordingly, the court concluded that the "fact that

the WPP now provides a comprehensive scheme for protecting the

precise sort of air safety-related conduct [plaintiff] engaged in

here, is . . . powerful evidence of Congress's clear and manifest

intent to pre-empt state-law whistleblower claims related to air

safety." I d . at 496.

So it is in this case. When he concluded that he could no

longer takeoff in time to complete his assigned flight within the

time limit prescribed by the pertinent FAR, Simonds refused to

fly the plane and left the cockpit. The plane was able to depart

(albeit belatedly) only because his flight crew reluctantly

returned to the plane (under threat of termination) and Pan Am

was able to locate another pilot. Nevertheless, Simonds'

conduct, like that of the flight attendant in Botz, put in

13 jeopardy the air carrier's ability to render service to its

passengers, by threatening to ground a plane. Simonds' state law

whistleblower claim based upon that conduct is, therefore, pre­

empted. See Botz,

("When applied to the facts

surrounding [plaintiff's] discharge, the [state] whistleblower

statute has a forbidden connection with air-carrier services.").

The Eleventh Circuit's opinion in Branche does not suggest a

different outcome. There, the plaintiff - an airline mechanic -

brought a claim under Florida's whistleblower statute claiming

that he was discharged for having reported past violations of

various FARs. In holding that the plaintiff's claim was not pre­

empted, the court distinguished the facts presented in Botz,

observing:

[I]n this case, the connection - or, indeed, the potential connection - between [plaintiff's] actions and air carrier services is far more attenuated than in Bo t z . As the Eight Circuit said, if a flight attendant refuses to fly and a replacement cannot be found, FAA regulations prevent the plane from leaving the gate, thereby disrupting service. Here, by contrast, we are not concerned with the withdrawal of clearance for a plane to take off based on mechanical concerns, but instead only with [plaintiff's] post hoc reporting of a FAA violation. . . . Had [plaintiff] claimed that Airtran fired him in retaliation for refusing to allow

14 a plane to take off due to safety concerns, this would present a situation closer to the one at issue in B o t z .

Branche, at *12 (emphasis supplied). In fact, the Branche court

embraced the reasoning of the Eight Circuit, noting that "[a]s

for the connection between retaliatory discharge claims and

airline services, we do not dispute the Eighth Circuit's

conclusion that the grounding of an airplane is related to

airline services, in particular, the transport of passengers from

one place to another." I d . (emphasis supplied).4

Conclusion

The opinions in both Branche and Botz counsel in favor of

the conclusion that, under the facts presented in this case.

4 To be sure, the Eleventh Circuit did not agree with the Botz court's analysis of the pre-emptive effect of the WPP. Specifically, the Eleventh Circuit concluded that Congress's enactment of the WPP did nothing to alter the scope of the ADA's pre-emption provision, nor did it provide any additional insight into the scope which Congress intended that pre-emption provision to have. Branche, at *13. That fact does not, however, alter the outcome in this case since the conduct in which Simonds' engaged (and which the state whistleblower statute allegedly protects) was undeniably "related to . . . service of an air carrier,"

(b)(1), insofar as it threatened to disrupt Pan Am's flight from Sanford, Florida, to Portsmouth, New Hampshire. Conseguently, as applied in this case, the Florida whistleblower statute has an impermissible effect on air carrier service and is, therefore, pre-empted.

15 Simonds' state law whistleblower claim is pre-empted. Because

the allegedly protected conduct in which Simonds engaged created

a real threat to Pan Am's ability to provide service to its

customers (by threatening to ground the plane ) , his state

whistleblower claim arising out of that conduct is necessarily

pre-empted. See Morales

. See also Branche,

at 12 n.9 (holding that "it is the specifics of

the retaliation claim, not the whistleblower statute, that

appropriately determine pre-emption.").

Because Simonds' state law whistleblower claim against Pan

Am is, as a matter of law, pre-empted by the ADA, defendants'

motion to dismiss (document no. 7) is granted. The Clerk of

Court shall enter judgment in accordance with this order and

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 30, 2003

16 cc: Arthur M. Freyre, Esq. Andrew W. Serell, Esq. Edward L. Artau, Esq. R. Matthew Cairns, Esq. John R. Fornaciari, Esq.

17