Mitchell v. American/US Airways

REPLY to Response to Motion re: 45 MOTION to Dismiss for Lack of JurisdictionMOTION to Dismiss for Failure to State a Claim

D. Ariz.October 5, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O g l e t r e e , D e a k in s , N a s h , S m o a k & S t e w a r t , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Charity Mitchell, Plaintiff, vs. American Airlines/USairways, Defendant. No. 2:17-cv-02470-DGC DEFENDANT AMERICAN AIRLINES INC.’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT Pursuant to Fed. R. Civ. P. 12(b)(1) and (6), Defendant American Airlines, Inc. (“American Airlines” or “Defendant”) requests that the Court grant Defendant’s Motion to Dismiss Plaintiff’s Third Amended Complaint (ECF No. 45) (the “Motion to Dismiss”) for lack of subject matter jurisdiction and failure to state a viable legal claim under the Americans with Disabilities Act (“ADA”). Plaintiff’s Response in Opposition to Defendants’ Motion to Dismiss (ECF No. 47) (the “Response”) provides no substantive grounds for denying Defendant’s Motion to Dismiss.1 First, Plaintiff continues to assert 1 Plaintiff alleges that the Motion to Dismiss was untimely. (Response at 1, ECF No. 47). Plaintiff fails to explain her assertion or offer any support for this allegation. Defendant timely filed its Motion to Dismiss on September 12, 2017 as required by this Court’s Order (ECF No. 43). Nonnie L. Shivers, SBN 023460 Douglas (Trey) Lynn, SBN 028054 Ogletree, Deakins, Nash, Smoak & Stewart, P.C., SBN 00504800 2415 East Camelback Road, Suite 800 Phoenix, Arizona 85016 Telephone: (602) 778-3706 Fax: (602) 778-3750 Nonnie.Shivers@OgletreeDeakins.com Trey.Lynn@OgletreeDeakins.com Attorneys for Defendant American Airlines, Inc. Case 2:17-cv-02470-DGC Document 48 Filed 10/05/17 Page 1 of 9 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O g l e t r e e , D e a k in s , N a s h , S m o a k & S t e w a r t , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 that she was disciplined and subsequently terminated in violation of the applicable collective bargaining agreement (the “CBA”). Plaintiff provides no justification for why claims based on the provisions and interpretation of the CBA are not preempted by the Railway Labor Act, 45 U.S.C. §§ 151 – 188 (the “RLA”). Plaintiff provides no basis on which this Court could exercise subject matter jurisdiction over the claims arising out of the CBA, and she cannot do so since the Court has no jurisdiction. Accordingly, the Court should dismiss the Third Amended Complaint for failure to state a claim and for lack of subject matter jurisdiction. Additionally, Plaintiff fails to allege she was disabled under the ADA or that Defendant perceived her as disabled, as required to state a viable ADA claim. Plaintiff’s ADA claim also fails because she fails in her Complaint or her Response to plead that she suffered any adverse employment action because of her alleged medical condition. Likewise, Plainitff never asserted she was denied any accommodation as required to state a claim.2 Even taking into account the new facts encompassed in the Response, Plaintiff still fails to state a claim under the standards set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) and the Third Amended Complaint should be dismissed. I. The Court Lacks Subject Matter Jurisdiction Over Plaintiff’s Claims Arising Out Of And Requiring Interpretation Of The Collective Bargaining Agreement. Plaintiff’s primary argument in her Response appears to be that her discipline and subsequent termination violated the CBA.3 Plaintiff claims that “using the [Employee 2 Plaintiff fails to substantively address Defendant’s alternative ground for dismissal that Plaintiff failed to state a claim for retaliation under the ADA. Because that argument is deemed admitted, the retaliation claim should be dismissed. LRCiv 7.2(i). 3 Page 3 of the Response also references Title VII for the first time in this litigation. (ECF No. 46.) Plaintiff never asserted a Title VII claim in the operative Complaint or any previous version and none of her allegations can be read as Title VII claims. Further, Continued on Next Page Case 2:17-cv-02470-DGC Document 48 Filed 10/05/17 Page 2 of 9 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O g l e t r e e , D e a k in s , N a s h , S m o a k & S t e w a r t , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 Discussion Log] EDL as a form of discipline is not accepted” because “[t]he EDL is done randomly and behind the scenes” and not authorized by or in the CBA. (ECF No. 47 p. 3.) Plaintiff alleges that her discipline and termination were wrongful because Defendant failed to comply with the CBA’s provisions on discipline and termination. Analysis of any such claim would require review and interpretation of the CBA. However, this Court lacks subject matter jurisdiction to resolve disputes arising out of the CBA because such claims are preempted by the Railway Labor Act, 45 U.S.C. §§ 151 – 188 (the “RLA”). Bhd. of Locomotive Eng’rs v. Louisville & Nashville R.R. Co., 373 U.S. 33, 36-38 (1963). Plaintiff’s Response fails to address RLA preemption and the clear and binding case law cited in the Motion to Dismiss that any claims arising out of the CBA must be submitted to final and binding arbitration before a System Board of Arbitration, thus depriving this Court of subject matter jurisdiction. Plaintiff claims only that jurisdiction is proper because she followed the procedures from the EEOC, which is only applicable to her ADA claims, which otherwise fail for the reasons stated below. (ECF No. 47 p. 3.) Plaintiff offers no authority in support of her position that she should be allowed to bring claims arising out of the CBA. Therefore, Plaintiff’s claims arising out of the CBA should be dismissed for lack of subject matter jurisdiction. II. Plaintiff’s ADA Claim Must Be Dismissed Because She Continues To Fail To Allege She Suffered From An ADA-Covered Disability Or That Defendant Perceived Her As Disabled. In her Response, Plaintiff fails to allege that she suffered from a disability as defined by the ADA. Plaintiff states she had a “medical apparatus” (ECF No. 47 p. 1), but fails to allege that she suffered from an underlying physical or mental impairment that Plaintiff did not raise any Title VII issues before the EEOC and therefore, failed to exhaust her administrative remedies as to any Title VII claims. Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003), as amended (Jan. 2, 2004). Any such claims are time-barred, meaning amending (if sought) would be futile. Leon v. Danaher Corp., No. CV 10-587- TUC-DCB, 2011 WL 13190190, at *2 (D. Ariz. Aug. 31, 2011), aff'd, 474 F. App'x 591 (9th Cir. 2012) Case 2:17-cv-02470-DGC Document 48 Filed 10/05/17 Page 3 of 9 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O g l e t r e e , D e a k in s , N a s h , S m o a k & S t e w a r t , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 substantially limits one or more major life activities. 42 U.S.C. § 12102. As a result, Plaintiff fails to state a claim under the ADA. Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). Plaintiff claims that she utilized a “medical apparatus” associated with her “colostomy” and that she took medication. (ECF No. 47 pp. 1-3.) However, simply using a medical apparatus and/or taking medication alone do not qualify as a disability. See, e.g., Hurst v. Falcon Air Express Inc., 650 F. App'x 299, 300 (9th Cir. 2016) (plaintiff who took medication for heart condition was not disabled); Russell v. Phillips 66 Co., 687 F. App'x 748, 754–55 (10th Cir. 2017) (plaintiff’s reliance on medication for depression did not constitute a disability); Carper v. TWC Servs., Inc., 820 F. Supp. 2d 1339, 1352 (S.D. Fla. 2011) (plaintiff’s reliance on a pacemaker did not qualify as a disability because it did not substantially limit his life activities). An underlying medical condition qualifies as a disability only when it substantially limits one or more major life activities. Tsuji v. Kamehameha Sch., 154 F. Supp. 3d 964, 974 (D. Haw. 2015), aff'd, 678 F. App'x 552 (9th Cir. 2017) (plaintiff’s alleged fatigue did not qualify as a disability under the ADA where it did not substantially limit a major life activity); Sanchez v. United Parcel Serv. Inc., 625 F. App'x 806, 808 (9th Cir. 2015) (shoulder injury did not qualify as a disability under the ADA where it prevented the employee from sleeping on his left side or lifting more than 25 pounds); Weaving v. City of Hillsboro, 763 F.3d 1106, 1112 (9th Cir. 2014) (ADHD was not a disability under ADA because it did not substantially interfere with major life activities). Plaintiff points to no medical condition whatsoever. Instead, she expressly reaffirms in her Response that her “colostomy and supplies . . . did not interfere with [her] ability to speak type and walk while working [her] job.” (ECF No. 47 p. 2). Plaintiff makes no allegation that any underlying medical condition from which she did suffer substantially limited one or more major life activities, which is required to plead a viable ADA claim. Even construing her “colostomy and supplies” as a medical condition, Plaintiff fails to Case 2:17-cv-02470-DGC Document 48 Filed 10/05/17 Page 4 of 9 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O g l e t r e e , D e a k in s , N a s h , S m o a k & S t e w a r t , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 identify any underlying medical condition -- let alone a medical condition that substantially limited one or more of her major life activities -- as required to state a claim. Plaintiff also does not allege she requested or required an accommodation and instead asserts she was fully able to perform her job functions, which also vitiates her ADA claims. Plaintiff recites the definitions of disabled and perceived as disabled but makes no attempt to meet these basic and necessary pleading requirements. Plaintiff does not allege she was disabled under the ADA, and she therefore fails to state a claim for disability discrimination. Alejandro v. ST Micro Electronics, Inc., 129 F. Supp. 3d 898, 907-08 (N.D. Cal. 2015) (recommending dismissal of ADA claim for failure to allege disability). Similarly, Plaintiff does not allege that Defendant perceived her as disabled. To state a viable “regarded as” claim under the ADA, Plaintiff “must establish that the employer believes that [she] has some impairment, and provide evidence that the employer subjectively believes that [she] is substantially limited in major life activity.” Walton v. U.S. Marshals Serv., 492 F.3d 998, 1006 (9th Cir. 2007). Plaintiff does not claim that Defendant perceived her as disabled and does not address this argument in the Response. III. Plaintiff Does Not Allege That She Suffered An Adverse Employment Action Because Of Her Alleged Medical Condition, Including Her Need To Take Medication And Use A Colostomy Apparatus, Or That She Was Denied Any Accommodation. To state a claim for disability discrimination under the ADA, Plaintiff must allege that her employer took an adverse employment action against her because of her alleged disability or perceived disability. Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003) (quoting Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.2000)). Plaintiff’s claim fails because she does not claim that there was any connection between her alleged medical condition and any adverse action taken against her by Defendant. In her Response, Plaintiff alleges only that her supervisor, Steve Olson, once made a comment that Phoenix was not a fit for her and that it was just a matter of time before she was no longer employed with US Airways. (ECF No. 47 p. 2.) She also vaguely alleges Case 2:17-cv-02470-DGC Document 48 Filed 10/05/17 Page 5 of 9 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O g l e t r e e , D e a k in s , N a s h , S m o a k & S t e w a r t , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 that she was, at some unknown time and by an unknown person, “confronted while working and asked questions.” (Id.) First, such a vague, innocuous comment or question does not constitute an adverse employment action under the ADA. For an act to be considered an adverse employment action under the ADA, it must materially affect the compensation, terms, conditions, or privileges of the plaintiff’s employment. Jefferson v. Time Warner Cable Enters. LLC, 584 Fed.Appx. 520, 522 (9th Cir.2014) (verbal warnings and rescheduling of plaintiff’s shift did not constitute adverse employment actions). For instance, disciplinary charges and written reprimands are not considered adverse employment actions. Vale v. Great Neck Water Pollution Control Dist., 80 F. Supp. 3d 426, 436 (E.D.N.Y. 2015). Instead, an adverse employment action is an action by the employer that "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Industries v. Ellerth, 524 U.S. 742, 761 (1998). The alleged comments made by Mr. Olson and the unspecified questions Plaintiff claims were asked do not rise to the level of an adverse employment action. Plaintiff claims that the alleged comments by Mr. Olson were made because she was late to her assigned gate on one occasion. (ECF No. 47 p. 2.) She claims that she was late because a TSA agent’s glove became stuck to a bandage and had to be removed with scissors. (ECF No. 47 p. 2.) However, Plaintiff does not allege that Defendant took any adverse action against her for being late in this isolated instance. This unconnected and isolated incident was not and cannot the basis for any adverse action sufficient to state a viable ADA claim. Critically, Plaintiff does not make any connection between her ultimate termination and her alleged medical condition. Plaintiff alleges only that her discipline and subsequent termination were improper because they violated the terms of the CBA. As discussed above, such claims are preempted by the RLA and this Court lacks subject matter jurisdiction over those claims. Case 2:17-cv-02470-DGC Document 48 Filed 10/05/17 Page 6 of 9 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O g l e t r e e , D e a k in s , N a s h , S m o a k & S t e w a r t , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 Similarly, Plaintiff does not allege that she required or requested any accommodation. Plaintiff affirmatively alleges she was not required to bring any medical issue(s) from which she suffered to her employer’s attention until it affected her ability to do her job. (ECF No. 47 p. 3.) Plaintiff does not allege she ever brought any such issue to her employer’s attention. Plaintiff states that Defendant provided her with a “magic refrigerator” to store her medications and that on one occasion her medications were misplaced. However, Plaintiff does not allege that she requested an accommodation or that the refrigerator was provided as an accommodation. Most importantly she never alleges she was denied any accommodation. Plaintiff also alleges that she “needed to pass through to [her] work station without the benefit of being searched” and claims she was worried that TSA might “contaminate the site” during searches.4 (Id. p. 1.) However, Plaintiff but does not allege that Defendant had any control over or responsibility for the TSA procedures or searches. Plaintiff also fails to allege that her employer (versus TSA – a third party government agency over which American had no control or authority) failed to grant her any requested accommodation arising from this (or any other) situation. Therefore, Plaintiff fails to state a claim for failure to accommodate under the ADA. IV. Conclusion This Court lacks subject matter jurisdiction over Plaintiff’s claims that she was disciplined and terminated in violation of the CBA are preempted by the RLA. The Response does not contain any legal authority in support of Plaintiff’s claim that this Court has jurisdiction over the claims arising from the CBA. This Court lacks subject matter jurisdiction to hear those claims. Therefore, this Court must dismiss the Third Amended 4 Plaintiff claims that the stations in Charolotte, NC and Las Vegas, NV provided a bypass for employees to pass through TSA. However, Plaintiff does not allege that Defendant had the ability to provide such a bypass in Phoenix. Case 2:17-cv-02470-DGC Document 48 Filed 10/05/17 Page 7 of 9 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O g l e t r e e , D e a k in s , N a s h , S m o a k & S t e w a r t , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 Complaint in its entirety for failure to state a claim and for lack of subject matter jurisdiction. Plaintiff’s Third Amended Complaint (even read liberally and in conjunction with her previous complaints) and her Response lack sufficient factual and legal allegations to state viable ADA claims under Fed. R. Civ. P. 12(b)(6).5 Plaintiff fails to address the majority of Defendant’s legal arguments in her Response. Rather she fails to allege that she was disabled under the ADA or that she was perceived as disabled. Plaintiff does not allege that she required or was denied an accommodation. She also fails to allege sufficient facts to show that she suffered an adverse employment action because of a disability or perceived disability. For these reasons, Plaintiff’s discrimination and retaliation claims under the ADA should be dismissed. RESPECTFULLY SUBMITTED this 5th day of October, 2017. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By:s/Douglas (Trey) Lynn Nonnie L. Shivers Douglas (Trey) Lynn 2415 East Camelback Road, Suite 800 Phoenix, Arizona 85016 Attorneys for Defendant American Airlines, Inc. 5 Plaintiff also failed to list her claims in numbered paragraphs as required by Fed. R. Civ. P. 10(b). Plaintiff claims that she was unaware of the requirement. However, undersigned counsel discussed this issue with Plaintiff during their meet and confer. In any event, Plaintiff is required to follow the Federal Rules of Civil Procedure even though she is proceeding pro se. See e.g. Fisher v. United States, No. MC14-0009 PHX DGC, 2014 WL 5139323, at *1 (D. Ariz. Sept. 11, 2014). Notably, Defendant does not seek dismissal on this ground (and made no such motion) as Plaintiff’s claims fail under Rules 12(b)(1) and (6) and should be dismissed on those substantive grounds. Case 2:17-cv-02470-DGC Document 48 Filed 10/05/17 Page 8 of 9 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O g l e t r e e , D e a k in s , N a s h , S m o a k & S t e w a r t , P .C . 2 4 1 5 E a s t C a m e l b a c k R o a d , S u it e 8 0 0 P h o e n ix , A r iz o n a 8 5 0 1 6 (6 0 2 ) 7 7 8 -3 7 0 0 CERTIFICATE OF SERVICE I hereby certify that on the 5th day of October, 2017, I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and mailed a copy of the attached document via first class U.S. mail to: Charity Mitchell 3108 St. Tropez Las Vegas, NV 89128 Plaintiff Pro Se s/Jessica Oliverson 31310683.7 Case 2:17-cv-02470-DGC Document 48 Filed 10/05/17 Page 9 of 9