PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-2386
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D. C. Docket No. 95-1149-CIV-ORL-22
FRANK J. PARISE,
Plaintiff-Appellant,
versus
DELTA AIRLINES, INC.,
Defendant-Appellee.
______________________________
Appeal from the United States District Court
for the Middle District of Florida
______________________________
(May 28, 1998)
Before BIRCH, Circuit Judge, HILL and KRAVITCH, Senior Circuit
Judges.
BIRCH, Circuit Judge:
Frank J. Parise appeals the district court’s order dismissing his
employment discrimination action based on federal preemption
under the Airline Deregulation Act of 1978 (ADA), 49 U.S.C. §
41713(b)(1). For the reasons that follow, we conclude that the
district court erred in finding Parise’s suit to be preempted and
remand for proceedings consistent with this opinion.
I. BACKGROUND
Parise worked as a customer service agent for Delta Air Lines,
Inc. (Delta). According to the complaint, in 1994 Parise engaged in
a “heated discussion” with a supervisor about the working conditions
at the airline. R1-2 at 3. During this conversation, Parise apparently
threatened several co-workers that he “would ‘kick their butts’ if he
caught them off company property after hours.” Id. at 4. Delta
terminated Parise’s employment two weeks after this incident.
2
Parise subsequently filed this action in state court and alleged
that Delta had discriminated against him on the basis of age. The
action was filed pursuant to Fla. Stat. § 760.10(1)(a) and 42 U.S.C.
§ 1984.1 Delta removed the case to federal district court on the
basis of diversity of citizenship; the basis for removal is not at issue
here. In its answer to Parise’s complaint, Delta asserted, inter alia,
that its conduct toward Parise was justified and that the action was
preempted by the ADA.2 The district court dismissed the suit after
finding that Parise’s age discrimination claim related to the services
that Delta provided. Specifically, the court noted:
[T]he Court finds persuasive Delta’s argument
that its decision to terminate Parise, a customer
service agent who admittedly made violent
threats to a supervisor and coworker, is one
that is “intimately tied to Delta’s most important
1
Parise does not dispute that the reference to § 1984 was in
error and does not give rise to any cognizable claim.
2
The ADA provides, in relevant part:
[A] State . . . 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 . . . .
49 U.S.C. § 41713(b)(1).
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obligation . . . to provide safe and secure air
transportation to the flying public.” Doc. 57 at
9. Clearly, an airline’s decision to terminate a
customer service agent on the grounds of
passenger safety is “related to” the airline’s
“services” and falls within the preemption
clause of the ADA. Because the Florida Civil
Rights Act would impact on Delta’s ability to
provide a safe environment for its passengers,
Parise’s claim is “related to” Delta’s “services”
and is thus preempted by the ADA.
R2-59 at 5.
On appeal, Parise argues that the relationship between the
event that, according to Delta, gave rise to his termination and the
services provided by the airline is too tenuous to justify a finding of
preemption. Alternately, Parise requests that if we find that the ADA
preempts his state law claim, we necessarily should convert this
claim to a federal cause of action under the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq.
II. DISCUSSION
4
We review the district court’s order granting Delta’s motion to
dismiss for lack of subject matter jurisdiction de novo. See Babicz
v. School Bd. of Broward County, 135 F.3d 1420, 1422 (11th Cir.
1998) (per curiam). In doing so, we view the facts in the light most
favorable to the plaintiff. See Welch v. Laney, 57 F.3d 1004, 1008
(11th Cir. 1995).
Whether a federal statute preempts state law is a question of
congressional intent. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246,
252, 114 S. Ct. 2239, 2243, 129 L. Ed. 2d 203 (1994). The
Supreme Court has noted that Congress enacted the ADA “[t]o
ensure that the States would not undo federal deregulation with
regulation of their own . . .”. Morales v. Trans World Airlines, Inc.,
504 U.S. 374, 378, 112 S. Ct. 2031, 2034, 119 L. Ed. 2d 157 (1992).
Consistent with this assessment, the Court has found preemption
where the challenged state statute had a prohibitive effect on an
expressed concern set forth in the ADA. See, e.g., Morales, 504
U.S. at 390, 112 S. Ct. 2040 (fare advertising provisions under state
5
law “would have a significant impact upon the airlines’ ability to
market their product, and hence a significant impact upon the fares
they charge.”). Conversely, the Court has rejected preemption
where no such effect was found to exist. See, e.g., American
Airlines, Inc. v. Wolens, 513 U.S. 219, 228, 115 S. Ct. 817, 824, 130
L. Ed. 2d 715 (1995) (where plaintiffs in class action suit alleged
airlines violated state consumer protection laws, Court declined to
“read the ADA’s preemption clause . . . to shelter airlines from suits
alleging no violation of state-imposed obligations, but seeking
recovery solely for the airline’s alleged breach of its own, self-
imposed undertakings.”).
Several presumptions necessarily guide our analysis of the
preemptive scope of a federal statute: First, preemption is
appropriate only if it is the clear and manifest purpose of Congress.
Hawaiian Airlines, 512 U.S. at 252, 114 S. Ct. at 2243 (quoting
Hillsborough County v. Automated Med. Lab., Inc., 471 U.S. 707,
715, 105 S. Ct. 2371, 2376, 85 L. Ed. 2d 714 (1985)). Second, the
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courts should not lightly infer preemption of actions within the
traditional police powers of a state. Id. For a law to be expressly
preempted by the ADA, a state must “enact or enforce a law that
relates to airline rates, routes, or services, either by expressly
referring to them or by having a significant economic effect upon
them.” See Travel All Over the World, Inc. v. Kingdom of Saudi
Arabia, 73 F.3d 1423, 1431 (7th Cir. 1996).
As noted, the district court in this instance explicitly premised
its finding of preemption on the relationship between Parise’s
alleged violent outburst toward co-workers and the “service” of
safety that Delta is bound to provide. Although we are cognizant of
Delta’s compelling assertion that the threatening behavior in which
Parise allegedly engaged “relates to” the valid safety concerns of an
airline, we conclude that the district court erred in finding Parise’s
state age discrimination action to be preempted by the ADA.
Significantly, the issue of Parise’s allegedly inappropriate–and
potentially violent–conduct arises here in response to and as a
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defense to the claim presented in the complaint. Although the
complaint mentions the alleged threat as part of the factual
narrative leading up to Parise’s eventual termination, the
complaint sets forth a cause of action for age discrimination under
Florida law. The statute pursuant to which Parise filed his
complaint provides that
(1) It is an unlawful employment practice for
an employer:
(a) To discharge or to fail or refuse to hire
any individual, or otherwise to discriminate
against any individual with respect to
compensation, terms, conditions, or privileges
of employment, because of such individual’s
race, color, religion, sex, national origin, age,
handicap, or marital status.
Fla. Stat. § 760.10(1)(a). The only relevant question with respect
to preemption in light of Parise’s claim, then, is whether a cause
of action brought pursuant to Florida’s law prohibiting age
discrimination “relates to” rates, routes, or services of an air
carrier. Notably, Delta does not posit under the facts of this case
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the existence of a relationship between an airline’s decision to
terminate an employee on the basis of age and a concern for
airline safety; rather, it is Delta’s answer to the complaint that
appears to provide the asserted ground for preemption. In
resolving the jurisdictional question potentially raised by a statute
such as the ADA, however, it is the cause of action and the
underlying state law on which it is founded that concerns us.3
Similarly, the sole basis for the court’s finding of preemption
rests on Delta’s proffered justification for terminating Parise. This
justification, offered pursuant to the familiar burden-shifting
framework established in all employment discrimination cases of
this nature, is highly relevant to whether Parise can survive a
motion for summary judgment on the underlying merits of his
3
By way of illustration, if Parise had claimed that Delta
discriminated against him on the basis of a mental illness that
sometimes caused him to exhibit violent tendencies and had relied
on a state civil rights statute protecting emotionally disabled
individuals from termination due to their disability, Delta’s
argument in favor of preemption analytically would carry greater
weight; in other words, the basis of the cause of action–without
reference to the answer or any affirmative defense–conceivably
would conflict with the underlying purposes of the ADA and
therefore give rise to a finding of preemption.
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case. We believe that it is inappropriate, however, for the court
to credit the defendant’s proffered non-discriminatory justification
for its decision to terminate an employee and use that allegation
as a basis to find preemption, thereby potentially depriving the
plaintiff of any remedy under either federal or state law.4
It is worth noting that the decisions relied on by both Delta
and the district court in support of preemption serve only to
confirm our view that preemption was not the appropriate vehicle
by which to resolve Parise’s claims at this stage of the
proceedings. In Belgard v. United Airlines, 857 P.2d 467 (Colo.
App. 1992), plaintiffs filed suit pursuant to a state law prohibiting
discrimination on the basis of disability and claimed that the airline
had discriminated against them because they had undergone eye
surgery. In finding the state statute to be preempted, the
4
Of course, we express no opinion as to the underlying merits
of this case. On remand, the district court may--or may not--find
that Parise cannot show that the “safety concern” articulated by
Delta was a pretext for age discrimination. At this stage, our
sole concern is whether the district court properly may use Delta’s
explanation for its employment decision as a basis for a finding of
preemption.
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Colorado court determined that the physical capabilities of flight
personnel did “relate to” the services rendered by an airline. See
id. at 470-71. Similarly, in Fitzpatrick v. Simmons Airlines, Inc.,
555 N.W.2d 479 (Mich. Ct. App. 1996) (per curiam), app. denied,
570 N.W.2d 785 (Mich. 1997), the plaintiff sued under a state
civil rights statute on the ground that the employer-airline had
discriminated against him because he failed to meet the height
and weight requirement. Adopting the reasoning advanced in
Belgard, the Michigan court found that height and weight
standards for employees did “relate to” the services of an air
carrier and, thus, the claims were preempted. Id. at 481. Both of
these state cases are markedly distinct from the cause of action
at issue here; in both Belgard and Fitzpatrick, the tension
identified by the courts between the plaintiff’s cause of action and
the federal interest derives from the state law on which the claim
is based, not from a subsidiary (though perhaps important) fact
presented by the defendants. As previously mentioned, the
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rationale for preemption that is articulated by Delta has no
connection to Florida’s statute prohibiting discrimination on the
basis of age; rather, the preemption argument is founded
exclusively on Delta’s proffered reason for having terminated
Parise.
The district court also relied on both Aloha Islandair Inc. v.
Tseu, No. 94-00937, slip. op., (D. Hawai’i July 13, 1995) (Aloha
I) and Abdu-Brisson v. Delta Air Lines, Inc. 927 F. Supp. 109
(S.D.N.Y. 1996) (Abdu-Brisson I) as factually similar cases that
compel a finding of preemption. In Aloha I, the defendant-airline
had a policy of not hiring pilots with monocular vision. The
plaintiff, an FAA-certified pilot with monocular vision, filed a
grievance with the state civil rights commission claiming that the
employer-airline had discriminated against him based on his
perceived disability. The district court, also relying on Belgard,
found that the state anti-discrimination statute was preempted by
the ADA. See id. at *1. Significantly, however, the Ninth Circuit
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reversed the district court’s determination in Aloha I. See Aloha
Islandair, Inc. v. Tseu, 128 F.3d 1301 (9th Cir. 1997) (Aloha II). In
concluding that the pilot’s discrimination claim was not preempted
by the ADA, the court of appeals explicitly rejected the holding of
Belgard and observed:
[W]e see no congressional purpose that
would be served by denying to FAA-certified
pilots, in the name of preemption, the
protection of Hawaii’s law from employment
discrimination based on physical disability.
Aloha II, 128 F.3d at 1303.
Finally, Abdu-Brisson I involved a series of age
discrimination claims against Delta that the district court found to
be preempted because they “related to” pricing and pilot staffing.
927 F. Supp. at 112. As in Aloha I, however, the Second Circuit
has since reversed the district court’s finding of preemption. See
Abdu Brisson v. Delta Air Lines, Inc., 128 F.3d 77 (2nd Cir. 1997)
(Abdu-Brisson II). In concluding that the plaintiffs’ claims did not
affect Delta’s services, the court of appeals expressly observed:
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Delta is unable to establish that enforcing the
city and state human rights laws in this case
would frustrate the purpose of the ADA. . . .
Although the policies behind the ADA are
several, the primary motivation for the
reform–as the name of the statute
indicates–was to deregulate the industry. . . .
Permitting full operation of New York’s age
discrimination law will not affect competition
between airlines–the primary concern
underlying the ADA.
Abdu-Brisson II, 128 F.3d at 84 (citations omitted). In sum, we
find that the decisional law cited by the district court in support of
preemption is either inapposite or recently has been overruled.
As a result, these referenced decisions cannot guide our
resolution of the jurisdictional question before us.
III. CONCLUSION
In this age discrimination action against Delta Air Lines filed
pursuant to state law, the district court found that the claims were
preempted by the ADA. We conclude that the district court
improperly based its finding of preemption on Delta’s proffered
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justification for its employment decision rather than on the state
law claim set forth in the complaint. Accordingly, we REVERSE
the court’s finding of preemption and REMAND for further
proceedings consistent with this opinion.
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