Crooms v. Sw. Airlines Co.

• Decision Date: 12 May 2020
• Docket Number: Case No. 19-cv-2149
• Citation: 459 F.Supp.3d 1041
• Parties: Darrell CROOMS, John Lopez, Latrice Saxon, and Stephanie Hill, individually, and on behalf of all others similarly situated, Plaintiffs, v. SOUTHWEST AIRLINES CO., Defendant.
• Court: U.S. District Court — Northern District of Illinois

459 F.Supp.3d 1041

Darrell CROOMS, John Lopez, Latrice Saxon, and Stephanie Hill, individually, and on behalf of all others similarly situated, Plaintiffs,

v.SOUTHWEST AIRLINES CO., Defendant.

Case No. 19-cv-2149

United States District Court, N.D. Illinois, Eastern Division.

Signed May 12, 2020

Andrew C. Ficzko, James B. Zouras, Ryan F. Stephan, Stephan Zouras, LLP, Chicago, IL, for Plaintiffs.

Melissa Anne Siebert, Erin Bolan Hines, Jonathon M. Studer, Shook, Hardy & Bacon L.L.P., Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Steven C. Seeger, United States District Judge

Plaintiffs Darrell Crooms, John Lopez, Latrice Saxon, and Stephanie Hill worked as Ramp Agents for Southwest Airlines at Midway Airport in Chicago. They brought claims against Southwest and Kronos, Inc., alleging that Southwest collected their fingerprints but failed to comply with the Illinois Biometric Information Privacy Act ("BIPA"), 740 ILCS 14/1 et seq.

Three months after they filed suit, the Seventh Circuit issued its decision in Miller v. Southwest Airlines Co. , 926 F.3d 898 (7th Cir. 2019). The plaintiffs in Miller were a group of Ramp Agents for Southwest Airlines at Midway Airport. Like the Plaintiffs here, the plaintiffs in Miller claimed that the airline had scanned and used their fingerprints in violation of BIPA. The Seventh Circuit ultimately ruled that the Railway Labor Act, 45 U.S.C. § 151 et seq. , required them to bring their claims before an adjustment board (and not in federal court), and thus affirmed dismissal of their claims.

Southwest now moves to dismiss, relying heavily on the Seventh Circuit's decision in Miller . As a fallback, Southwest also argues that the Plaintiffs separately agreed to arbitrate their claims. Southwest relies on an ADR Program that all four Plaintiffs accepted, as well as a Mediation Agreement joined by three of the four Plaintiffs.

For the reasons stated below, the motion is granted.

Background

According to the amended complaint, Southwest's employees "are required, as a condition of employment, to have their fingerprints scanned by a biometric timekeeping device." See Am. Cplt. at ¶ 4; see also id. at ¶ 3 ("When Southwest hires an employee, he or she is enrolled in its Kronos employee database(s) using a scan of his or her fingerprint."); id. at ¶ 34. Southwest uses that biometric information to keep track of the time worked by its employees, using a system provided by former defendant Kronos. Id. at ¶¶ 2–4, 18, 34. Instead of swiping a badge or punching a timeclock, employees basically punch in and punch out of work at the touch of a finger. Id. at ¶ 35.

Southwest scanned the fingerprints of the four Plaintiffs when they joined the company. "As a condition of employment, Plaintiffs were required to scan their fingerprints" so that Southwest could use them to track their time. Id. at ¶ 47 (emphasis in original). Southwest stored their fingerprint data in its Kronos employee database. Id. at ¶ 48. Each work day, Plaintiffs use the fingerprint scanner at the beginning and the end of their shifts. Id. at ¶ 49.

All four Plaintiffs worked as Ramp Supervisors "or similarly-situated positions" at Midway Airport. Id. at ¶ 45. Crooms worked as a Ramp Supervisor from March 2015 until September 2016. Id. at ¶ 46. Lopez held that job from October 2011 through at least May 30, 2019 (when Plaintiffs filed the amended complaint). Id. Saxon had that job from November 2016 to May 30, 2019, and Hill had that role from June 2016 until November 2017. Id.

The amended complaint does not recount their full employment history with Southwest. Three of the four Plaintiffs (Lopez, Saxon, and Hill) began their careers as Ramp Agents. See Jordan Decl., at ¶ 4 (Dckt. No. 34-1). Southwest's website currently describes the job of a Ramp Agent as follows: "These Warriors work mostly outdoors: loading bags and cargo, directing our airplanes in and out of the gate, and assuring safe, ontime performance." Southwest Careers , Southwest Airlines, http://www.careers.southwestair.com/c/airport-operations-jobs (last visited May 10, 2020). Lopez, Saxon, and Hill used the fingerprint scanner to clock in and clock out when they were Ramp Agents. See Jordan Decl., at ¶ 8 (Dckt. No. 34-1).

Plaintiffs Lopez, Saxon, and Hill were later promoted to Ramp Supervisors. Crooms, the other Plaintiff, started at Southwest as a Ramp Supervisor. See Jordan Decl., at ¶ 4 (Dckt. No. 34-1). The key point is that three of the four named Plaintiffs provided their biometric information and used the fingerprint scanner as Ramp Agents, before becoming Ramp Supervisors. Id. at ¶ 8.

From a collective bargaining perspective, there is a big difference between Ramp Agents and Ramp Supervisors. Ramp Agents employed by Southwest at Midway Airport are represented by the Transportation Workers Union of America, ALF-CIO Local 555 ("the Union"). Id. at ¶¶ 5, 10. But Ramp Supervisors are not. Id. ; see also Saxon v. Southwest Airlines Co. , 2019 WL 4958247, at *2 (N.D. Ill. 2019) (addressing a claim against Southwest under the Fair Labor Standards Act, brought by one of the four Plaintiffs here) ("There is one further important difference between Ramp Agents and Ramp Supervisors – the former are included in a CBA; the latter are not."). Under the Collective Bargaining Agreements, the Union is the "sole and exclusive bargaining agent" for the Ramp Agents. See Jordan Decl., at ¶ 7. The Union's role isn't new – Southwest and the Union have entered into a series of collective bargaining agreements for decades. Id. at ¶ 6.

The Union represented Lopez, Saxon, and Hill when they scanned in and scanned out with their fingerprints as Ramp Agents. Id. at ¶¶ 8, 10. After their promotions, they were no longer bargaining unit employees. Id. But they continued to use the very same fingerprint scanning system that they used as Ramp Agents. Id. at ¶ 10. So their jobs changed, but the way that they clocked in and clocked out did not.

Plaintiffs ultimately sued Southwest and Kronos, alleging that the companies had unlawfully collected and used their biometric information without their consent. They filed suit under BIPA, an Illinois statute that "regulat[es] the collection, use, safeguarding, handling, storage, retention, and destruction of biometric identifiers and information." 740 ILCS 14/5(g).

The statute "requires collectors of this material to obtain the written informed consent of any person whose data is acquired. This regime is designed to protect consumers against the threat of irreparable privacy harms, identity theft, and other economic injuries arising from the increasing use of biometric identifiers and information by private entities." Bryant v. Compass Group USA, Inc. , 958 F.3d 617, 619 (7th Cir. 2020) ; see also Rosenbach v. Six Flags Entm't Corp. , 432 Ill.Dec. 654, 129 N.E.3d 1197, 1206–07 (2019). Unlike other types of information, a biometric identifier is "biologically unique to the individual," so a person is at "heightened risk for identify theft" if his or her biometric information is compromised. 740 ILCS 14/5(c). The Act defines "[b]iometric identifier" to include a "fingerprint," so a claim about fingerprint data falls within its scope. See 740 ILCS 14/10.

The complaint includes three counts. First, Plaintiffs claim that Southwest failed to make, provide, and follow a retention schedule and guidelines for the permanent deletion of biometric data. See Am. Cplt. ¶¶ 74–82. Second, Plaintiffs allege that Southwest failed to obtain informed written consent before collecting their biometric data. Id. at ¶¶ 83–92. Third, they claim that Southwest disclosed their biometric data without their consent. Id. at ¶¶ 93–101. Plaintiffs request statutory damages of $5,000 for each intentional and/or reckless violation of BIPA, injunctive and other equitable relief, attorney's fees, and other relief.

In addition to claims in their personal capacities, the named Plaintiffs brought claims on behalf of a purported class, too. They seek certification of a class of "[a]ll individuals working for Southwest in the State of Illinois who had their fingerprints collected, captured, received, obtained, maintained, stored, disclosed or disseminated by any Defendant during the applicable statutory period." Id. at ¶ 64.

Plaintiffs later dismissed their claims against Kronos (see Dckt. No. 74), so Southwest is the last remaining Defendant.

Analysis

Southwest moves to dismiss on three grounds. The four named Plaintiffs are situated a little differently, so not every argument applies to each Plaintiff.

First, Southwest argues that the Railway Labor Act preempts the state law claims, and thus requires Plaintiffs to seek relief before an adjudgment board (and not in federal court). That argument applies to Plaintiffs Lopez, Saxon, and Hill (Plaintiffs 2, 3, and 4, in case it helps keep them straight) because they were represented by the Union when they worked as Ramp Agents. It does not apply to Plaintiff Crooms because he was not a Ramp Agent. He started as a Ramp Supervisor and was not part of the bargaining unit.

Second, the company contends that all four Plaintiffs agreed to arbitrate all employment-related disputes with Southwest when they became Ramp Supervisors. Southwest points to annual acknowledgement forms that each Plaintiff electronically signed, agreeing to comply with its ADR Program. And the ADR Program requires arbitration for certain claims about their employment.

Third, the airline argues that Crooms, Lopez, and Hill (Plaintiffs 1, 2, and 4) agreed to arbitrate their BIPA claims with Southwest as part of a Mediation Agreement.

The common denominator of the three arguments is straightforward: this case does not belong in federal court. The Court agrees.

I. Preemption under the Railway Labor Act.

Southwest first argues that this dispute belongs in front of an adjustment board, and does not belong in federal court, under the Railway Labor Act.

The Railway Labor Act governs the...