Buethe v. Britt Airlines, Inc.

• Decision Date: 11 December 1984
• Docket Number: No. 84-1116,84-1116
• Citation: 749 F.2d 1235
• Parties: 118 L.R.R.M. (BNA) 2031, 103 Lab.Cas. P 55,544, 1 Indiv.Empl.Rts.Cas. 419 Scott BUETHE, Plaintiff-Appellant, v. BRITT AIRLINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1235

749 F.2d 1235

118 L.R.R.M. (BNA) 2031, 103 Lab.Cas. P 55,544,

1 Indiv.Empl.Rts.Cas. 419

Scott BUETHE, Plaintiff-Appellant, v. BRITT AIRLINES, INC., Defendant-Appellee.

No. 84-1116.

United States Court of Appeals Seventh Circuit.

Argued Sept. 21, 1984.

Decided Dec. 11, 1984.

Stephen L. Trueblood, Bolin, Trueblood & Rennolet, Terre Haute, Ind., for plaintiff-appellant.

Paul D. Jones, Ford & Harrison, Atlanta, Ga., for defendant-appellee.

Before COFFEY and FLAUM, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

FLAUM, Circuit Judge.

Appellant Scott Buethe appeals from the district court's order granting appellee Britt Airlines' motion for summary judgment. The district court held that Buethe failed to state a cause of action for his allegedly wrongful termination by Britt both under the Federal Aviation Act, 49 U.S.C. Secs. 1301 et seq., and under Indiana law. We reverse the district court's order with respect to the state law claim and remand for consideration of whether jurisdiction over the state law claim can properly be exercised in this case. ¹

I. BACKGROUND

Scott Buethe was employed by Britt Airlines, Inc. ("Britt") as a part-time co-pilot from March 25, 1979, to June 23, 1980, when he was discharged. During his employment, Buethe was an hourly employee who had no written employment contract with Britt.

Buethe alleges that he was wrongfully discharged by Britt Airlines because of two separate incidents during the spring of 1980 when Buethe refused, because of alleged defects in the aircraft, to fly the aircraft to which he was assigned. The first of these incidents took place on March 10, 1980, when Buethe refused to fly a plane carrying thirteen commercial passengers from Chicago's O'Hare International Airport to Terre Haute, Indiana because of a problem with the plane's "auto-feather system." The pilot in command of that flight, Captain Ralph Swanson, allegedly wanted to proceed with the flight notwithstanding the mechanical problem, which would have violated Federal Aviation Administration ("FAA") regulations. Buethe's refusal to fly the plane forced Britt to cancel the flight, whereupon Captain Swanson and Buethe ferried the plane back to Terre Haute, without passengers, for repairs.

After arriving in Terre Haute, Captain Swanson reported to William Cummings, the Director of Operations at Britt, that Buethe had pre-empted the decision of the pilot in command concerning the flight cancellation by refusing to fly before Swanson had an opportunity to evaluate the situation. Buethe claims that several days after the March 10 incident, Cummings told him that "whenever a flight is cancelled, it costs the company a great deal of money, and that makes the company unhappy when they lose money."

The second incident occurred in Terre Haute on April 20, 1980, and again involved Captain Swanson as Buethe's pilot in command. Buethe noticed during a pre-flight inspection of the plane that a problem with the wing flaps was noted in the plane's log, and as the plane was taxied from the hangar to the terminal the fire warning system was found to be defective. After checking to see whether the warning light was a required item on the Minimum Equipment List, Buethe told Swanson that he "would not fly the aircraft in that condition." Buethe felt that Captain Swanson intended to proceed with the flight in spite of the mechanical problems because he taxied the plane to the terminal for passengers to board, went inside the terminal, and checked passenger loads for the flight. Swanson allegedly tried to obtain another co-pilot to replace Buethe but was unsuccessful. Swanson then called maintenance, and after a delay of several hours the plane was repaired and the flight proceeded.

On June 23, 1980, Buethe was terminated by Jack Ward, Britt's chief pilot. According to Buethe, Ward called him to his office and asked him what right he had to refuse to fly the aircraft on those two occasions when Swanson was the pilot in command. Ward also allegedly told Buethe that wing flaps were not necessary for the type of flying done by Britt and that a co-pilot should keep his eyes open and his mouth shut. Ward then terminated Buethe and told him he would never again fly for Britt as long as Ward was the chief pilot there.

Immediately thereafter, Buethe discussed his termination with William Britt, the company president, who agreed to review the matter. Mr. Britt later informed Buethe that he had considered the matter and had decided not to override Ward's decision.

In July 1980, shortly after his discharge, Buethe contacted the FAA and alleged that he had been terminated for refusing to fly aircraft with inoperative items. Appendix ("App.") at 38. The FAA conducted an investigation of Britt's operations but concluded that no enforcement action was warranted. App. at 41.

Buethe filed the present action against Britt in Indiana state court on November 25, 1980, alleging wrongful and retaliatory discharge and asking for compensatory damages, attorney's fees under the "private attorney general concept," and punitive damages "to punish and to deter defendant from flying routes in violation of the restrictions and requirements of the FAA." App. at 15-16. The case was subsequently removed to the United States District Court for the Southern District of Indiana pursuant to 28 U.S.C. Sec. 1441 (1982), because of the complaint's allegations of Federal Aviation Act violations. Record ("R") 2.

Britt moved for summary judgment on August 18, 1981, on the ground that Buethe's complaint "fail[ed] to state a claim upon which relief [could] be granted." ² On January 5, 1984, the district court granted Britt's motion for summary judgment. Buethe v. Britt Airlines, Inc., 581 F.Supp. 200, 204 (S.D.Ind.1984). The district court held first that no private right of action, either express or implied, derived from the Federal Aviation Act. Id. at 203. The court then analyzed the Indiana case law on employment at will and concluded that Buethe similarly could not state a cause of action under state law. Id. at 204. On appeal, Buethe only contests the district court's dismissal of his state law claim.

II. ANALYSIS

The threshold issue in this case is whether the district court had subject matter jurisdiction over Buethe's state law claim once his federal claim was dismissed. ³ The essence of the state law claim is as follows: Although the general rule in Indiana is that an employee at will can be terminated at any time for any cause whatsoever, or for no cause at all, see Mead Johnson & Co. v. Oppenheimer, 458 N.E.2d 668, 670 (Ind.App.1984), Indiana has recognized an exception to the employment at will doctrine when an employee is discharged for exercising a statutorily conferred right or fulfilling a statutorily imposed duty. See Frampton v. Central Indiana Gas Co., 260 Ind. 249, 253, 297 N.E.2d 425, 428 (1973) (employee states claim of wrongful discharge by alleging that her dismissal was in retaliation for filing workmen's compensation claim under state workmen's compensation law); Campbell v. Eli Lilly & Co., 413 N.E.2d 1054, 1061 (Ind.App.1980) (plaintiff fails to state claim of wrongful discharge when he demonstrates no statutory source for the alleged rights/duties he has exercised/fulfilled), trans. denied, 421 N.E.2d 1099 (1981). If Buethe had a statutory duty not to fly a plane with inoperative items, therefore, and if he contends that he was discharged for fulfilling that duty, he allegedly states a claim of wrongful discharge under Indiana state law.

Our disposition of this appeal is somewhat hindered by the record's dearth of information on certain key points. First, Buethe has asserted for the first time in these proceedings that there is diversity between the parties to this lawsuit, see Brief of Appellant at iii, which would confer federal jurisdiction over the state law claim under 28 U.S.C. Sec. 1332(a)(1) (1982). Nothing in the record supports or refutes Buethe's allegation of diversity. Thus, the district court on remand may, in its discretion, permit Buethe to amend his complaint so as to establish that there was in fact diversity between Buethe and Britt Airlines at the time this action was commenced and that the amount in controversy exceeded $10,000. See Seagraves v. Harris, 629 F.2d 385, 390 (5th Cir.1980) (dismissal for want of jurisdiction generally not favored when alternate basis for jurisdiction exists); Hoefferle Truck Sales v. Divco-Wayne Corp., 523 F.2d 543, 549 (7th Cir.1975) (court's discretion to dismiss for lack of subject matter jurisdiction should be exercised sparingly when plaintiff could have pleaded the existence of jurisdiction and such jurisdiction in fact exists); 28 U.S.C. Sec. 1653 (1982) (defective allegations of jurisdiction may be amended in trial or appellate courts); Fed.R.Civ.P. 15(a) (party may amend pleading with leave of court). If Buethe is unable to establish diversity, the district court could proceed to consider whether it had jurisdiction over the state law claim under the doctrine of pendent jurisdiction, as explained below. If on the other hand Buethe is able to establish diversity between the parties, then we would have a proper jurisdictional foundation upon which to address the merits of Buethe's state law claim.

Assuming that there was no diversity between the parties to this action, the next step in the search for federal jurisdiction is to see whether there is independent federal question jurisdiction over Buethe's state law claim. The federal courts have federal question jurisdiction only over civil actions "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. Sec. 1331 (1982). Although nothing in Buethe's complaint suggests that his state law claim arises under the laws of the United States, we will nonetheless address the issue briefly. It could be argued that there is federal question jurisdiction over Buethe's claim of...