Botz v. Omni Air Intern.

• Decision Date: 05 April 2002
• Docket Number: No. 01-1420.,01-1420.
• Citation: 286 F.3d 488
• Parties: Anna BOTZ, formerly known as Anna Hollenkamp, Appellant, v. OMNI AIR INTERNATIONAL, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

286 F.3d 488

Anna BOTZ, formerly known as Anna Hollenkamp, Appellant, v. OMNI AIR INTERNATIONAL, Appellee.

No. 01-1420.

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2001.

Filed: April 5, 2002.

Jonathan G. Steinberg, argued, Minneapolis, MN, for appellant.

Eric Magnuson, argued, Minneapolis, MN (Patricia A. Burke and Jonathan J. Hegre, Minneapolis, MN, J. Ronald Petrikin, Tulsa, OK, on the brief), for appellee.

Before BOWMAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.

BOWMAN, Circuit Judge.

Omni Air International, Inc. terminated Anna Botz's employment as a flight attendant in July 2000 after she refused a flight assignment that she believed violated federal safety regulations. Botz filed the instant action in a Minnesota state court alleging that Omni violated Minnesota's whistleblower statute, Minn.Stat. § 181.931-.935 (2000 & Supp.2001), by discharging her in retaliation for refusing the assignment and for reporting the alleged safety violation to Omni. Omni invoked federal diversity jurisdiction and removed Botz's action to the District Court.¹ Omni then moved to dismiss the action for failure to state a claim upon which relief can be granted, arguing that the state whistleblower provisions were both expressly and impliedly pre-empted by the Airline Deregulation Act of 1978² (ADA) and the Whistleblower Protection Program (the Program or WPP) of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, Pub.L. No. 106-181, § 519(a), 114 Stat. 61, 145-49 (2000) (to be codified as 49 U.S.C. § 42121). The District Court agreed that Botz's claims were pre-empted and granted Omni's motion to dismiss. Because we conclude that the ADA expressly pre-empts Botz's claims under the Minnesota whistleblower statute, we affirm.

I.

For purposes of our review, we accept as true the factual allegations in Botz's complaint. See Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996), cert. denied, 519 U.S. 1149, 117 S.Ct. 1081, 137 L.Ed.2d 216 (1997). Omni employed Botz as a flight attendant from May 1999 until her July 2000 discharge. In January 2000, Omni assigned Botz to work both legs of a round-trip flight from Alaska to Japan. She believed when she received this assignment that it would require her to violate a restriction in the Federal Aviation Regulations (FAR) limiting a flight attendant's "duty period" to no longer than twenty hours. See 14 C.F.R. § 121.467 (2001). Botz nevertheless apparently completed the January 2000 round trip without incident or controversy but, upon her return, contacted an employee at the Federal Aviation Administration, Cabin Safety Division (FAA-CSD), who told her that in his opinion the assignment did indeed violate the FAR. Botz took no immediate steps to follow up on this information.

At an Omni employee meeting on July 7, 2000, Botz was again assigned the Alaska-to-Japan round trip. She objected, asserting that it violated the FAR. In response, Omni's corporate scheduler faxed a copy of an excerpt of the FAR to Omni's flight supervisor during the employee meeting. The flight supervisor concluded that the assignment did not violate the FAR. Botz attempted after the meeting to contact the same FAA-CSD employee with whom she had spoken earlier that year, but she was unable to reach him.

Botz nevertheless informed Omni on July 8, 2000, that she would refuse the assignment because she believed it violated the FAR. On July 12, 2000, Botz met with Omni representatives who informed her that her refusal was grounds for termination. She, in turn, presented to Omni's representatives the information she had received earlier in 2000 from the FAA-CSD employee and asked Omni's representatives to contact him. Botz also offered to carry out her disputed assignment without further objection if the FAA-CSD employee confirmed the opinion of Omni's flight supervisor that the assignment did not violate the FAR. Omni's representatives told Botz they would take seventy-two hours to consider her request. On July 14, 2000, Omni informed Botz that she had been discharged for insubordination and refusal to accept an assignment.

Botz then filed this suit in the Hennepin County (Minnesota) District Court claiming that her discharge violated the Minnesota whistleblower statute, see Minn.Stat. § 181.932, subd. 1(a), (c), because Omni discharged her for, she alleges, refusing the flight assignment and for reporting to Omni what she suspected³ was a violation of the FAR. Omni removed the suit to the District Court, invoking federal diversity jurisdiction, and moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

We review the District Court's grant of Omni's 12(b)(6) motion to dismiss de novo. See Hafley, 90 F.3d at 266. We construe her complaint in the light most favorable to her and determine whether she can prove any set of facts that would entitle her to relief. Id.

II.

Our task is to determine whether the ADA, as amended by the WPP, pre-empts Botz's claims under the Minnesota whistleblower statute. For our purposes here, then, the key feature of the ADA is its pre-emption provision. The provision 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

....

49 U.S.C. § 41713(b)(1) (1994).⁴ The ADA also includes a savings clause: "A remedy under this part is in addition to any other remedies provided by law." 49 U.S.C. § 40120(c) (1994). The Supreme Court has referred to this as a general "remedies" savings clause and deemed it "a relic of the pre-ADA/no pre-emption regime." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 385, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). Botz nevertheless relies in part upon the existence of this savings clause to support her argument that the ADA does not expressly pre-empt her claims.

Omni's express and implied pre-emption arguments, in turn, rely in part upon Congress's enactment of the WPP in 2000.⁵ The Program 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 inequitable 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 bases her claims on two provisions of the Minnesota whistleblower statute that protect an employee who in good faith reports a possible violation of any law or who refuses any assignment that she has an objective, factual basis to believe violates any law.⁶ See Minn.Stat. § 181.932, subd. 1(a), (c). The statute forbids any employer from taking an adverse employment action against an employee — such as disciplining, demoting, or discharging him — in retaliation for the employee's whistleblowing conduct and grants a civil cause of action with its customary legal and equitable remedies to an employee who is so injured. See id. §§ 181.932, .935.

Although Omni argued before the District Court both express and implied theories of pre-emption, the court did not analyze Omni's implied pre-emption argument because it ultimately concluded that Botz's Minnesota whistleblower claims were expressly pre-empted by the ADA. In determining whether Botz's Minnesota whistleblower claims fell within the scope of the claims Congress intended the ADA to pre-empt, the District Court looked first to the plain language of the provision, noting that it must be interpreted in context and in light of the overall statutory scheme. The court acknowledged that the Supreme Court in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), gave the phrase "related to" a very broad meaning, then focused on the service that a flight attendant provides. Because the length of a flight attendant's duty period has a significant effect upon the service he provides, any attempt to conceal violations of the FAR's duty-period restrictions would "seriously compromise the service that an air carrier provides." Botz v. Omni Air Int'l, 134 F.Supp.2d 1042, 1047 (D.Minn.2001). The court concluded that the plain language of § 41713(b)(1) pre-empted Botz's claims.

Turning to the evidence of congressional intent provided by the context and structure of the statutory scheme, the District Court noted that congressional air-safety policy, when coupled with the WPP's comprehensive scheme for protecting whistleblowers who report possible safety violations, provided additional evidence that Congress intended to "pre-empt state whistleblower claims based on safety violations." Botz, 134 F.Supp.2d at 1049. The District Court distinguished the handful of cases Botz cited that had held that the ADA did not pre-empt state whistleblower claims on the ground that these cases were all decided before Congress enacted the WPP, when the evidence of Congress's intent to pre-empt state whistleblower claims was "scant."

III.

In analyzing the pre-emptive effect of a statutory scheme such as the ADA, our ultimate touchstone is the purpose of Congress. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). We "begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Park `N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985); accord Morales, 504...