Wellons v. Northwest Airlines, Inc.

• Citation: 165 F.3d 493
• Decision Date: 26 January 1999
• Docket Number: No. 97-1242,97-1242
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1623, 75 Empl. Prac. Dec. P 45,742 Brenda WELLONS, Plaintiff-Appellant, v. NORTHWEST AIRLINES, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 493

165 F.3d 493

78 Fair Empl.Prac.Cas. (BNA) 1623,

75 Empl. Prac. Dec. P 45,742

Brenda WELLONS, Plaintiff-Appellant, v. NORTHWEST AIRLINES, INC., Defendant-Appellee.

No. 97-1242.

United States Court of Appeals Sixth Circuit.

Argued and Submitted March 10, 1998.

Decided Jan. 26, 1999.

Rita F. Young (briefed), Detroit, MI, for Appellant.

Donna J. Donati (argued and briefed), George D. Mesritz (briefed), Miller, Canfield, Paddock & Stone, Detroit, MI, for Appellee.

Before: KRUPANSKY, NELSON, and BATCHELDER, Circuit Judges.

NELSON, J., delivered the opinion of the court, in which BATCHELDER, J., joined. KRUPANSKY, J. (pp. 496-504), delivered a separate dissenting opinion.

DAVID A. NELSON, Circuit Judge.

The question presented in this appeal is whether a state statutory race discrimination claim and related common law tort claims asserted against an air carrier by a former employee have been preempted by the Airline Deregulation Act, 49 U.S.C. § 41713. Because the plaintiff's claims bear only the most tenuous relation to airline rates, routes, or services--the touchstone under 49 U.S.C. § 41713(b)(1)--we conclude that the claims have not been preempted. The district court having dismissed the case on preemption grounds, the order of dismissal will be reversed.

I

The plaintiff, Brenda Wellons, worked for Northwest Airlines as a reservation clerk from 1988 to 1993. Injured in an automobile accident in August of 1993, she was unable to work for a period of time thereafter. Ms. Wellons asked for a leave of absence, but Northwest denied her request. She was told that she would have to quit her job and reapply for employment when able to work again.

As instructed, Ms. Wellons resigned from her position. On reapplying for the job four months later, however, she was told that she could not be rehired because of a company policy that was said to bar the reemployment of anyone who had quit a job at Northwest within a year of the reapplication. But around the time that Ms. Wellons (an African-American) was denied reemployment, she says, Northwest allowed a similarly situated white woman to return to work after an absence of less than a year.

In September of 1996 Ms. Wellons brought suit against Northwest in a Michigan state court. The complaint alleged racial discrimination in violation of Michigan's Elliott-Larsen Civil Rights Act, together with intentional infliction of emotional distress, fraud, and misrepresentation.

Northwest removed the action to federal court on diversity grounds. The company then moved for dismissal of the complaint on the ground that Ms. Wellons' claims were preempted by the Airline Deregulation Act, 49 U.S.C. § 41713. The district court granted the motion to dismiss, ¹ and this appeal followed.

II

We start our preemption analysis by noting the existence of a "presumption that Congress does not intend to supplant state law." New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995); see Abdu-Brisson v. Delta Air Lines, Inc., 128 F.3d 77, 83 (2d Cir.1997). Without a "clear and manifest purpose" expressed by Congress, preemption is inappropriate. Travelers, 514 U.S. at 655, 115 S.Ct. 1671; Parise v. Delta Airlines, Inc., 141 F.3d 1463, 1465 (11th Cir.1998).

The expression of purpose at issue here--the preemption clause of the Airline Deregulation Act--reads as follows:

"Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States 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 that may provide air transportation under this subpart." 49 U.S.C. § 41713(b)(1). (Emphasis supplied.)

The words "related to," as used in this context, "express a broad pre-emptive purpose." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). Adopting the construction placed on a comparable locution in the Employee Retirement Income Security Act ("ERISA"), the Supreme Court held in Morales that the Airline Deregulation Act preempts any state enforcement action--including an attempt to regulate air fare advertising under state deceptive advertising law--"having a connection with or reference to airline 'rates, routes, or services.' " Id. at 384, 112 S.Ct. 2031. See also American Airlines, Inc. v. Wolens, 513 U.S. 219, 223-24, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995) (holding Consumer Fraud Act claims preempted when based on airline's administration of its frequent flyer program, but holding breach of contract claims not preempted).

Northwest contends, with undeniable logic, that its selection of reservation clerks has "a connection with" services--i.e., airline reservations--provided by the airline through its personnel. And Northwest argues that Ms. Wellons' rights should be limited to those available to her under the federal civil rights laws because the application of non-uniform state laws could hinder the reliance on market forces that Congress sought to achieve in the Airline Deregulation Act.

Among the cases on which Northwest relies in this connection is Belgard v. United Airlines, 857 P.2d 467, 471 (Colo.App.1992), cert. denied, 510 U.S. 1117, 114 S.Ct. 1066, 127 L.Ed.2d 386 (1994). Belgard was a suit by airline employees who had been denied pilots' jobs as a result of having undergone corrective eye surgery. They claimed that the defendant airline was in violation of a Colorado statute that prohibited discrimination based on a perceived physical handicap. Relying on the Deregulation Act's twin purposes of "maintenance of safety as the highest priority" and "maximum reliance on competitive market forces," the Belgard court determined that state regulation of hiring decisions made on the basis of job applicants' "physical characteristics" was preempted as having "a connection with" the airline's services. Id. at 470-71.

In Fitzpatrick v. Simmons Airlines, Inc., 218 Mich.App. 689, 555 N.W.2d 479 (1996), similarly, a baggage handler whose employment had been terminated for failure to meet an airline's mandatory height and weight rule sued for discrimination under the Elliott-Larsen Act. Quoting Belgard, the Michigan appellate court concluded that a law " 'that restricts an airline's selection of employees, based upon their physical characteristics, must necessarily have a connection with and reference to, and therefore must be one "relating to" [airline services].' " Fitzpatrick, 218 Mich.App. at 692, 555 N.W.2d at 481. An order dismissing the plaintiff's case on preemption grounds was therefore affirmed.

Belgard and Fitzpatrick may have been decided correctly, but it does not seem to us that they are of much help to Northwest here. The United States Supreme Court has made it clear that notwithstanding the breadth of 49 U.S.C. § 41713, the "related to" language does not vitiate the normal presumption against preemption. De Buono v. NYSA-ILA Medical and Clinical Servs. Fund, 520 U.S. 806, 117 S.Ct. 1747, 1751, 138 L.Ed.2d 21 (1997). And the Supreme Court has cautioned that " '[s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner' to have pre-emptive effect." Morales, 504 U.S. at 390, 112 S.Ct. 2031 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)) (alterations in original). State law claims of racial discrimination--as opposed to claims of discrimination on the basis of physical characteristics that might have some bearing on the individual's ability to render service safely and efficiently--are not preempted, in our view; they bear "too tenuous, remote, or peripheral" a relation to airline rates or services. ² Neither air safety nor market efficiency is appreciably hindered by the operation of state laws against racial discrimination. See Abdu-Brisson, 128 F.3d at 82-84. An employee's race, as opposed to his eyesight or physical size, has no arguable connection to safety. ³ "Unlike the regulation of marketing practices at issue in Morales or the regulation of frequent flyer programs at issue in [American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995) ], whether an airline discriminates on the basis of age (or race or sex) has little or nothing to do with competition or efficiency." Abdu-Brisson, 128 F.3d at 84.

The Second, Ninth, and Eleventh Circuits have all held that the Deregulation Act does not preempt state laws against discrimination on the basis of one or another of the following characteristics: age, sex or perceived disability. Parise, 141 F.3d 1463 (11th Cir.1998); Tseu, 128 F.3d 1301 (9th Cir.1997); Abdu-Brisson, 128 F.3d 77 (2d Cir.1997). It seems to us that an employee's race has less to do with the services he renders for the airline than his age or physical condition might. Unwilling to create a circuit split as far as race is concerned, we hold that Ms. Wellons' state law race discrimination claims are not preempted.

The order of dismissal is REVERSED, and the case is REMANDED for further proceedings not inconsistent with this opinion.

KRUPANSKY, Circuit Judge, dissenting.

Addressing a question of first impression in this circuit, the panel majority has resolved that the federal pre-emption proviso of the Airline Deregulation Act of 1978 ("ADA") (as recodified in 1994 and amended), 49 U.S.C. § 41713(b), ¹ did not preclude the prosecution of a state law racial discrimination in employment claim, and two related state common law tort causes of action, by a former airline worker against her erstwhile employer. However, because Congress intended the subject pre-emption provision to broadly forestall the application of any state law in any mode which is "related to a price, route, or service of an air carrier" (49 U.S.C. § 41713(b)(1)), the instant state law...