841 F. Supp. 2d 659
E.D.N.Y.2012Background
- Ulysse filed NY Labor Law § 740 whistleblower retaliation claim in state court.
- Defendants AAR and individual defendants removed to EDNY under 28 U.S.C. §§ 1441, 1446.
- Ulysse alleges supervisors directed use of substandard parts contrary to guidance and FAA rules.
- Plaintiff reported safety concerns; alleges retaliation and termination on April 17, 2009.
- Two state court § 740 actions were filed; first dismissed for lack of particularity; second filed with FAA-regulation specifics.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there federal question removal via ADA preemption? | Ulysse argues §740 is not preempted by ADA; no facial federal question. | AAR argues §740 is completely preempted by ADA/WPP so removal proper. | No express preemption; no federal question on face of complaint. |
| Does ADA preemption extend to this NY § 740 claim by complete preemption? | Branche/Gary/Ventress-like reasoning shows no complete preemption. | ADA preempts state whistleblower claims related to air carrier services. | ADA preemption not complete; no express preemption applies for this claim. |
| Is there implied preemption of the NY § 740 claim by ADA/FAA field preemption? | Implied preemption should not apply; state wage law retained police power. | Implied preemption possible due to aviation safety regime. | No implied preemption found; remand appropriate on federal question grounds. |
| Does the Whistleblower Protection Program (WPP) alter preemption scope? | WPP either silent or supports non-preemption; does not preempt NY § 740. | WPP could affect preemption scope and exclusivity of remedies. | WPP does not alter ADA preemption scope; no preemption based on WPP. |
| Is there complete diversity or fraudulent joinder warranting removal? | Non-diverse defendants may exist; individual NY defendants could be liable; not fraudulent joinder. | Non-diverse individuals were fraudulently joined to destroy diversity. | Fraudulent joinder not established; lack of diversity persists; remand appropriate. |
Key Cases Cited
- Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) (ADA preemption broad; includes indirect effects on prices/routes/services)
- American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995) (preemption meaning in ADA; states may not shape competition policies)
- Botz v. Omni Air Int’l, 286 F.3d 488 (2002) (Eighth Circuit broad ADA preemption of whistleblower claims)
- Branche v. AirTran Airways, Inc., 342 F.3d 1248 (2003) (limits on ‘services’ preemption; injury to airline operations not necessarily preempted)
- Gary v. Air Group, Inc., 397 F.3d 183 (2005) (no preemption where conduct is too remote from air-carrier services)
- Ventress v. Japan Airlines, 603 F.3d 676 (2010) (narrow ADA preemption; employment retaliation claims not necessarily preempted)
- Abdu-Brisson v. Delta Airlines, Inc., 128 F.3d 77 (1997) (employment discrimination claims generally not preempted by ADA)
- Rowe v. N.H. Motor Transp. Ass’n, 552 U.S. 364 (2008) (preemption scope tied to market forces and deregulation goals)
- Air Transport Ass’n of Am. v. Cuomo, 520 F.3d 218 (2008) (broad ADA preemption with focus on airline services)
- Goodspeed Airport LLC v. East Haddam Inland Wetlands & Watercourses, 634 F.3d 206 (2011) (limits on preemption; environmental/land-use actions remote from air services)