Roberts v. Delta Air Lines, Inc.

United States Court of Appeals
For the First Circuit

No. 09-1045

JOCELYN ROBERTS,

Plaintiff, Appellant,

v.

DELTA AIR LINES, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Lynch, Chief Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.

Charlotte E. Glinka with whom the Keches Law Group, P.C. was
on brief for appellant.
Thomas R. Murphy with whom the Law Offices of Thomas R.
Murphy, LLC was on brief for appellee.

March 24, 2010

*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
 LYNCH, Chief Judge. Jocelyn Roberts, a flight attendant,

was injured while working on a March 6, 2005, flight from Boston to

Las Vegas for Song LLC, which was owned and operated by Delta Air

Lines, Inc. ("Delta"). She received a lump sum workers'

compensation payment from Song and Delta's insurer, which insured

both Delta and Song under the same policy. Nonetheless, Roberts

sued Delta for negligence. She said that her employer was Song,

not Delta, and so she was free, under Massachusetts workers'

compensation law, to sue Delta on a theory that Delta was a liable

third party. Delta removed the case to federal court based on

diversity jurisdiction.

The district court, in a thoughtful opinion, disagreed

with Roberts and entered summary judgment for Delta. Roberts v.

Delta Air Lines, Inc., No. 07-12154-DPW, slip op. at 35 (D.Mass.

Dec. 4, 2008). On appeal, Roberts argues the district court erred

in granting summary judgment because there were contested issues of

material fact. We affirm.

I.

Delta registered Song as a Delaware limited liability

company and wholly owned subsidiary of Delta in October 2002. It

created Song in response to a drop in air travel following the

terrorist attacks of September 11, 2001. Established airlines,

like Delta, were losing price-sensitive leisure travelers, and

Delta created Song to compete better with emerging "low-cost

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carriers" for these customers. The subsidiary, Song, lasted only

until April 2007, when it was merged into Delta.1

The Federal Aviation Administration ("FAA") required the

establishment of a specific operational relationship between Song

and Delta as a matter of federal law. Under FAA regulations, an

entity must have an operating certificate in order to conduct

commercial flight operations in the United States, or to advertise

or otherwise offer such services. 14 C.F.R. § 119.5(b), (k). Song

did not have an operating certificate. As a result, Delta was

required to request from the FAA an amendment to its operations

specifications to include the name Song in order to operate flights

under the Song name. See id. § 119.9(a).

The FAA granted Delta's request in March 2003, contingent

on two requirements. First, the FAA made clear that its approval

of Delta's use of the Song brand name was "contingent upon [Delta]

remaining in operational control of the Delta d/b/a Song flights,"

regardless of whether or not Song provided "certain services and/or

personnel for the Delta d/b/a Song operations." Further, Delta had

to "refrain from marketing or advertising [Song] as a separate

entity." The FAA specifically stated that "[r]eferences to [Song]

as a 'new airline', a 'new airline service', a 'new air carrier',

1
As the district court noted, Song went through a number
of name changes, sometimes as a d/b/a of Delta. Roberts does not
claim that any of these name changes confused or misled her.

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or a 'new carrier'" violated FAA rules. Delta complied with these

conditions.

Song also complied with the regulatory restrictions on

Delta's operating certificate and operations specifications. Its

inaugural flight was on April 15, 2003. Although Song maintained

its status as a wholly owned subsidiary, it functioned very much

like a division of Delta. Song's president was also a vice

president at Delta and Song's vice presidents for operations and

safety, productivity and technology, and finance were also Delta

employees; all four of them reported to Delta's chief operating

officer. Song's human resources and communications managers were

also Delta employees. Delta's profit and loss statements included

Song's profit and loss statements. Song maintained its own

website, but that website consistently reiterated that "Song is

operated by Delta Airlines."

As required by the FAA, all Song flights were operated

under Delta's operating certificate and commanded by Delta pilots.

The aircraft themselves were all owned or leased by Delta and

maintained by Delta employees. When communicating with air traffic

controllers, pilots identified the Song flights as "Delta" flights.

All Song flight attendants, including Roberts, were also

supervised by Delta personnel. Song flight attendants wore

uniforms distinct from Delta uniforms, received training on

marketing the Song brand, and were regularly assigned to work on

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Song flights. Nonetheless, Delta set employment policies for Song

flight attendants, provided their training, established their

seniority list, and scheduled their flight assignments. Also

consistent with the FAA's requirements, Song flight attendants,

when making announcements on Song flights, were explicitly

instructed to refer to Song as a brand or service of Delta and not

as an independent carrier.

On February 25, 2003, Roberts, who had worked as a flight

attendant for Delta since 1997, applied for a flight attendant

position at Song. Her application contained language, identical to

language in her Delta application that she filled out six years

earlier, stating that Song operates under workers' compensation

law. In signing the application, Roberts agreed to accept workers'

compensation payment, in the event of an injury, and to "waive any

and all other claims for damages or other relief on account of any

injury, including all actions at law." Roberts's job interview was

conducted by a Delta in-flight supervisor, and her eligibility for

employment was confirmed by a Delta recruiter. When she was hired,

Roberts received a new Song ID number and an employee badge, which

on the reverse side read "Property of SONG (A Delta Airlines

Company)." Although she formally became an employee of Song,

Roberts retained the right to return to Delta in three years' time.

Her pay came from the Song payroll system and her monthly earning

statements contained only the name of Song.

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 Roberts's injuries occurred on March 6, 2005. That day,

Roberts and three other Song flight attendants were working on

Delta Flight 2054, originating from Boston's Logan International

Airport and flying to Las Vegas. The flight was piloted and

commanded by Delta employees.

As the flight was taxiing on the runway in Boston, the

first officer sensed possible danger and called out for the captain

to stop the aircraft. The aircraft came to a sudden stop. One of

the flight attendants on the plane (not Roberts) complained that

she had injured her elbow. The captain taxied the plane back to

the gate, where the injured flight attendant was removed from the

flight and replaced by a Delta flight attendant. At this time,

Roberts, who had also been hurt, made a call to request that she be

removed from the flight. According to Roberts, her call was

"routed to a Delta person" who informed her that she "would not be

taken off in Boston" and that she would have to remain on the

aircraft as a crew member to Las Vegas.

During the flight, Roberts reported back pain; as a

result, when the flight landed, paramedics met the plane. Roberts

and another flight attendant were taken to a hospital in Las Vegas.

On the aircraft's next flight, they were replaced by Delta flight

attendants. Roberts had suffered several back injuries, including

a herniated disc, which required multiple surgeries to repair.

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Because of the injuries, she could no longer work as a flight

attendant.

Immediately following the accident, Roberts began

receiving workers' compensation payments. On May 9, 2008, Roberts

signed an agreement under Massachusetts law, since Massachusetts

was the place where the injury occurred, agreeing to accept a lump

sum payment in lieu of future workers' compensation payments.2 The

agreement listed her employer as "Song Airlines/Delta (in

dispute)." The payment was made by Ace American Insurance Company,

Inc., which at that time administered a single policy, paid for by

Delta, that included in its coverage Delta, Song, and other Delta

divisions and affiliates.

Earlier, on October 5, 2005, Roberts had filed suit

against Delta in Massachusetts state court, claiming that Delta was

liable in tort for the captain's alleged negligence in bringing the

aircraft to a sudden stop. The litigation was stayed for two years

while Delta was in bankruptcy and that stay was lifted by

stipulation of the parties in November 2007, after a bankruptcy

court confirmed Delta's reorganization plan. Delta then filed a

notice of removal in November 2007 to have the case heard in

2
Since neither party has raised it on appeal, we bypass
the question of whether the terms of the settlement agreement bar
this action.

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federal court.3 The district court granted summary judgment in

Delta's favor on December 4, 2008.

II.

We review the district court's grant of summary judgment

de novo. Weaver's Cove Energy, LLC v. R.I. Coastal Res. Mgmt.

Council, 589 F.3d 458, 469 (1st Cir. 2009). Summary judgment is

properly granted "if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(c).

Massachusetts workers' compensation law, like most such

statutes, provides the exclusive remedy, in most circumstances, for

claims by an injured employee against a covered employer. Mass.

Gen. Laws ch. 152, §§ 23-24. Employees are "held to have waived

[their] right of action at common law . . . in respect to an injury

compensable under this chapter" unless they have given notice to

their employer, at the time they were hired, claiming such a right.

Id. § 24. Roberts gave no such notice. Further, when an injured

employee accepts compensation for the injury, both the employer and

the workers' compensation insurers are released from all claims or

demands at common law arising from the injury. Id. § 23. Common

law tort claims, including Roberts's negligence claim, are among

3
The timeliness of the removal in this case has not been
challenged and we take no view on it.

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those claims released by §§ 23 and 24. See Saab v. Mass. CVS

Pharm., LLC, 896 N.E.2d 615, 618-19 (Mass. 2008).

Massachusetts courts have adopted a two-part test for

whether a person or entity is immune from liability under the

statute. To be immune, (1) a "direct employment relationship must

exist" between the injured party and the person claiming immunity,

and (2) "the employer must be an insured person liable for the

payment of compensation." Fleming v. Shaheen Bros., Inc., 881

N.E.2d 1143, 1146 (Mass. App. Ct. 2008) (quoting Numberg v. GTE

Transp., Inc., 607 N.E.2d 1 (Mass. App. Ct. 1993)) (internal

quotation marks omitted).

The key dispute here is whether there was an employment

relationship between Roberts and Delta. Roberts's underlying claim

is that §§ 23 and 24 do not bar her from bringing suit against

Delta, despite her having settled her workers' compensation case,

because Delta was not her employer, Song was. Injured people

retain the right to pursue a claim against "any person other than

the insured person employing such employee and liable for payment

of the compensation" under the act.4 Mass. Gen. Laws ch. 152,

§ 15.

4
It is undisputed that Roberts's injury is compensable
under workers' compensation law because she suffered a personal
injury that arose in the course of her employment, and thus any
common law claims against her employer would be barred. Mass. Gen.
Laws ch. 152, § 26; see also Saab, 896 N.E.2d at 619-20; Foley v.
Polaroid Corp., 413 N.E.2d 711, 713-14 (Mass. 1980).

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 Massachusetts workers' compensation law gives a broad

definition of who may be an employer (that is, the "insured person"

employing such employees), but the statute does not set out

conditions for determining when an employment relationship actually

exists. Mass. Gen. Laws ch. 152, § 1(5).

Under Massachusetts case law, whether someone is a

person's employer is largely determined by "who has direction and

control of the employee and to whom . . . [the employee] owe[s]

obedience in respect of the performance of his work." Fleming, 881

N.E.2d at 1147 (quoting Patterson v. Liberty Mut. Ins. Co., 723

N.E.2d 1005, 1010 n.13 (Mass. App. Ct. 2000)) (internal quotation

marks omitted); see also Nat'l Ass'n of Gov't Employees v. Labor

Relations Comm'n, 796 N.E.2d 856, 858-59 (Mass. App. Ct. 2003).

This, as we note later, comes from the common law test.

Roberts's argument depends upon the assumption that Delta

and Song were two separate entities and that Delta was not her

employer. She argues that Song was her general employer, and she

is entitled to a presumption that she remained in the employ of her

"general" employer, and not of Delta. See Kelley v. Rossi, 481

N.E.2d 1340, 1343 n.5 (Mass. 1985). Roberts asserts that whether

she was under Delta's "direction and control" so as to create an

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employment relationship is a question of fact that should have been

decided at trial.5

We disagree and conclude that Delta was Roberts's

employer (or, at least, Roberts's co-employer) because, at all

pertinent times, Roberts was under the direction and control of

Delta and she reasonably had obligations to Delta in the

performance of her duties. Such direction and control was in fact

required by federal law. The FAA clearly stated that Delta's

permission to operate flights under the Song brand name was

conditioned on Delta remaining "the person/entity exercising

operational control over the Delta d/b/a Song flights."

Additionally, FAA regulations make clear that, at the time of the

accident, the pilot, a Delta employee, was "in command of the

aircraft and crew" and had "full control and authority in the

operation of the aircraft, without limitation, over other

crewmembers and their duties." 14 C.F.R. § 121.533(d)-(e). FAA

regulations also gave Delta ultimate direction and control over

5
Roberts also argues that Delta cannot satisfy the second
prong of the test for immunity. She asserts that at most Delta was
her "special employer" and that there is a dispute of fact as to
whether Delta was an "insured person liable for payment of
compensation" to Roberts such that it was entitled to immunity.
Fleming, 881 N.E.2d at 1146; see also Mass. Gen. Laws ch. 152,
§ 18. Because Roberts did not raise this argument before the
district court, it is waived. Even so, the argument understates
plaintiff's relationship with Delta. Delta, as a co-insured with
Song on the workers compensation policy, was liable for the
payment. Cf. Fleming, 881 N.E.2d at 1148. In this case, the fact
that Song was named on the policy does not demand a different
conclusion.

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Roberts's presence on the flight, requiring that Delta, as the

holder of the operating certificate, be the entity that assigned

Roberts and other flight attendants to their duties on Song

flights. See 14 C.F.R. § 121.467.

Massachusetts uses the common law criteria for "employer"

and "employee" in its workers' compensation law. See Ramsey's

(Dependent's) Case, 360 N.E.2d 911, 913-14 (Mass. 1977). The

undisputed facts also show that in practice Delta exercised

direction and control over Roberts, and Delta therefore was her

employer under the common law test. Fleming, 881 N.E.2d at 1147;

see also Lopez v. Massachusetts, 588 F.3d 69, 84 (1st Cir. 2009)

("At common law the relevant factors defining the master-servant

relationship focus on the master's control over the servant.")

(quoting Clackamas Gastroenterology Assocs., P.C. v. Wells, 538

U.S. 440, 448 (2003)). It is undisputed that Delta employees

interviewed and hired Roberts for her position at Song; that Delta

was ultimately responsible for the employment policies Roberts

worked under, as well as her training and work assignments; that

Delta regulated the manner and extent to which Roberts could make

representations about Song; and that the aircraft Roberts worked

on, including on the day of her injury, were piloted, owned or

leased, and serviced by Delta and its employees. When, after the

accident, Roberts requested to be removed from the flight, it was

a Delta employee who instructed her to remain. There were also no

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acts of negligence by Delta independent of Song; the injury

occurred during a regular Song flight, which Delta pilots always

commanded.

Roberts's arguments based on other facts do not create a

material dispute of facts. The fact that Roberts signed an

employment contract with Song and was paid by Song does not create

a material dispute about who directed and controlled her activities

or whose instructions governed her conduct. Nor does the fact that

Song was separately incorporated change the calculus. The FAA made

clear that even if Song, as Delta's subsidiary, provided personnel

and services to Song flights, Delta nonetheless was required to

retain operational control, and the undisputed facts show Delta did

so in practice.

Because Delta's direction and control was so clear, we

need not explore the intricacies of the corporate relationship

between Delta and Song, including whether the piercing the

corporate veil doctrine might play a role on other facts. We also

do not address whether Roberts was a "lent servant."6 This also is

6
The "lent servant" doctrine provides,

When a [sic] employer lends an employee to another party,
that party becomes liable for worker's compensation only
if
(a) the employee has made a contract of hire, express
or implied, with the second employer;
(b) the work being done is essentially that of the
second employer; and
(c) the second employer has the right to control the
details of the work.

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simply not a situation of one company leasing or lending employees

from another. See Mass. Gen. Laws ch. 152, § 14A.

Understandably, the plaintiff tried to fit the facts of

this case to the formal labels created by the state statute, such

as "general" and "special" employers, as well as "leased" or "lent"

employees. The indiscriminate use of labels can undercut the basic

concepts of direction and control which underlie the question of

whether an entity is an employer. Delta, the employer in fact,

has, through its insurance, paid workers' compensation to

plaintiff. This is not a situation which would justify allowing a

tort suit to go forward.

We affirm entry of judgment for Delta.

3 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law
§ 67.01[1], at 67-2 (2009).

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