RabÉ v. United Air Lines Inc.

• Decision Date: 05 May 2010
• Docket Number: No. 09–3300.,09–3300.
• Citation: 636 F.3d 866
• Parties: Laurence H. RABÉ, Plaintiff–Appellant,v.UNITED AIR LINES, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

636 F.3d 866

111 Fair Empl.Prac.Cas. (BNA) 1094

Laurence H. RABÉ, Plaintiff–Appellant,

v.UNITED AIR LINES, INC., Defendant–Appellee.

No. 09–3300.

United States Court of Appeals, Seventh Circuit.

Submitted May 5, 2010.*Decided Feb. 28, 2011.

Laurence H. Rabé (submitted), Sherman Oaks, CA, pro se.Gary S. Kaplan, Attorney, Seyfarth Shaw LLP, Chicago, IL, for Defendant–Appellee.Before EASTERBROOK, Chief Judge, and COFFEY and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This case presents issues concerning the application of United States employment discrimination laws to an international employment relationship in which the parties agreed to application of United States law. Plaintiff-appellant Laurence Rabé, a French citizen, worked as a flight attendant out of the Hong Kong and Paris bases of United Air Lines. Rabé's employment contract provided that it would be governed exclusively by “applicable United States law” and that only courts and administrative bodies of the United States and Illinois could hear disputes relating to her terms of employment. When the company fired her for alleged misconduct, she sued in the United States District Court claiming that United had discriminated against her on the basis of her national origin, age, and sexual orientation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2, the Age Discrimination in Employment Act, 29 U.S.C. § 623, and the Illinois Human Rights Act, 775 ILCS 5/1–102, 5/2–102. The district court dismissed the case, concluding that it lacked subject matter jurisdiction because Rabé is a foreign national who worked for United abroad.

We reverse the judgment and remand for further proceedings. First, whether Rabé worked in the United States is an issue affecting the merits of her claims but not the district court's subject matter jurisdiction. We also conclude that the parties' employment contract had the effect of applying the substantive provisions of United States and Illinois employment discrimination laws to Rabé as a matter of contract law. Finally, Rabé's claims are not precluded or preempted by the Railway Labor Act. We offer no comment on the merits of Rabé's claims except to say that she is entitled to try to prove them on the merits.

I. Plaintiff's Employment with United Air Lines

United hired Rabé in November 1993 to work in France out of the company's Paris hub. She signed an individual employment contract at United's headquarters in Chicago, Illinois. The contract specified that her work would “be performed on board United's aircraft registered in the USA as they operate on routes throughout the Company's worldwide system,” and that the aircraft would “constitute the establishment where” she performed her employment. The individual contract also required Rabé to join the Association of Flight Attendants, the American labor union that represents United flight attendants.

The contract provided in articles 5 and 6 that “the terms and conditions” of Rabé's employment would “be governed exclusively by applicable United States law, including the Railway Labor Act and the AFA [collective bargaining] agreement,” and that jurisdiction over all employment-related claims would lie exclusively in courts and administrative bodies of the United States and Illinois. The individual contract even said that it would not be valid unless Rabé wrote by hand: “Read and approved, valid for agreement and in particular for acceptance of the choice of U.S. law clause (article 5) and of the jurisdiction clause (article 6).”

United transferred Rabé to its Hong Kong base in 1997. According to her complaint, ninety percent of her flights were to or from United States destinations until May 2002, when she took a voluntary furlough from the company. United recalled Rabé from the furlough in August 2005. Still based in Hong Kong, she worked only flights between Asian airports before things went sour between her and United in 2007. According to Rabé, who is a lesbian, her new supervisor once told her that he believed it is “not right to be gay” and made comments suggesting that he suspected she is a lesbian. In September 2007, the supervisor initiated an investigation of Rabé for allegedly misusing company-issued travel vouchers. Rabé contends that the investigation was a pretext for the supervisor to fire her for invidious reasons. At the end of the investigation in April 2008, United fired Rabé, who was then 40 years old.

II. Proceedings in the District Court

Rabé filed this lawsuit in October 2008, and United moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. United argued that Title VII and the ADEA do not apply to non-citizens working outside the United States and that the Illinois Human Rights Act does not apply to work outside Illinois. Alternatively, United argued that Rabé's claims are precluded (or preempted in the case of the state law claim) by the Railway Labor Act, 45 U.S.C. §§ 151–188. The district court dismissed Rabé's complaint for lack of subject matter jurisdiction, reasoning that United States employment discrimination laws do not apply to her because she did not spend significant time working in Illinois or elsewhere in the United States. The court did not reach United's argument that the Railway Labor Act precluded or preempted plaintiff's claims.

III. Subject Matter Jurisdiction

On appeal the parties continue to frame the question as whether the district court had subject matter jurisdiction over Rabé's claims. That is not correct. As the parties agree, the protections of Title VII and the ADEA do not generally extend to aliens who work outside the United States. See 42 U.S.C. § 2000e–1(a); Shekoyan v. Sibley Int'l, 409 F.3d 414, 422 (D.C.Cir.2005); 29 U.S.C. § 630(f); Reyes–Gaona v. North Carolina Growers Ass'n, 250 F.3d 861, 865 (4th Cir.2001); Denty v. SmithKline Beecham Corp., 109 F.3d 147, 150 (3d Cir.1997); see generally EEOC v. Arabian American Oil Co., 499 U.S. 244, 253–55, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (discussing alien exemption). But that issue goes to the merits of a claim rather than the court's subject matter jurisdiction. An employee's status as a foreign worker may prevent her success on the merits in a Title VII or ADEA case, but it is not a barrier to the court's power to adjudicate her case.

The Supreme Court has held that the closely related question whether an employer has enough employees to be subject to Title VII is a matter for the merits rather than a requirement for subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). The Court explained that, “when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” Id. at 516, 126 S.Ct. 1235. We see no sound basis for distinguishing between the treatment of Title VII's 15–employee requirement and the requirements that an alien seeking relief under the employment discrimination statutes must have performed her work within the United States. In both Title VII and the ADEA, the domestic-work requirement appears outside of the statute's jurisdictional provision. See 42 U.S.C. §§ 2000e–1 and 2000e–5(f)(3); 29 U.S.C. §§ 630(f) and § 626(c). There is no other reason to believe that Congress intended to “rank” the restrictions as jurisdictional. See Arbaugh, 546 U.S. at 516, 126 S.Ct. 1235.¹

Rabé alleged and supported with evidence substantial ( i.e., non-frivolous or colorable) claims for coverage directly under Title VII and the ADEA. Even if those claims are not successful on the merits because her work for the last several years of her employment was not in the United States, they were substantial enough to give the district court subject matter jurisdiction over the case, including supplemental jurisdiction over the state law claim. See, e.g., Greater Chicago Combine and Center, Inc. v. City of Chicago, 431 F.3d 1065, 1070 (7th Cir.2005) (affirming summary judgment on merits of federal constitutional claims that raised substantial federal questions); Gammon v. GC Services Ltd. Partnership, 27 F.3d 1254, 1256 (7th Cir.1994) (reversing dismissal for lack of subject matter jurisdiction where plaintiff alleged substantial federal claim); see generally Lauritzen v. Larsen, 345 U.S. 571, 574–75, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) (holding that federal court had subject matter jurisdiction to consider Jones Act claim by Danish seaman for injury occurring on board Danish-registered ship while in Cuban waters; defense that Danish law governed the claim was issue on merits, not a bar to subject matter jurisdiction).

IV. The Merits and Choice of Employment Law

Because United's motion was an attack on the merits of Rabé's claims rather than the district court's jurisdiction to hear her case, the court should have treated it as a motion to dismiss for failure to state a claim under Rule 12(b)(6). See Miller v. Herman, 600 F.3d 726, 732–33 (7th Cir.2010). Before the district court, the parties spent most of their energy disputing whether Rabé spent enough time working in and traveling to the United States at relevant times to qualify as a person working in the United States for purposes of Title VII and the ADEA. United emphasized that Rabé had not worked flights to or from the United States for five years before her termination. Rabé emphasized that over the entire course of her employment with United, most of the flights she worked were to or from the United States. The choice of the relevant time period is debatable.

We do not disagree with the district court's conclusion that Rabé did not spend sufficient time working in the United States or traveling to and from the United States in the last several years before her termination to qualify as being employed in the United States for purposes of Title VII and the ADEA. We express...