165 F.3d 493 | 6th Cir. | 1999
Lead Opinion
NELSON, J., delivered the opinion of the court, in which BATCHELDER, J., joined. KRUPANSKY, J. (pp. 496-504), delivered a separate dissenting opinion.
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 plaintiffs 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,
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*495 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 plaintiffs 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 preemptive 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.
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.
. The district court gave Ms. Wellons leave to amend her complaint to assert federal civil rights claims, but Ms. Wellons concedes that any federal claims she might have had are barred by the statute of limitations.
. It is trae, as Northwest points out, that state laws forbidding discrimination on the basis of
. The Ninth Circuit rejects the Belgard/Fitzpatrick conclusion that state laws relating to an employee’s perceived physical disability are preempted. In Aloha Islandair Inc. v. Tseu, 128 F.3d 1301 (9th Cir.1997), where the airline conceded that state race discrimination law was not preempted, the court held that state disability discrimination law was not preempted either. Id. at 1302-03. We express no view on the correctness of that holding.
Dissenting Opinion
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),
The plaintiff-appellant Brenda Wellons (“Wellons”), an African American woman, has alleged that she worked as a reservation sales agent for defendant-appellee Northwest
On September 9, 1996, via her three count complaint lodged in Michigan state court anchored in the allegations summarized above, Wellons charged Northwest with racial discrimination in employment in violation of Michigan’s Elliott-Larsen Civil Rights Act (Mioh. Comp. Laws § 37.2202), state law intentional infliction of emotional distress, and state law fraud and misrepresentation. Asserting diversity of citizenship, Northwest removed the cause to federal district court.
The laws of the United States are “the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. CONST, art. VI, cl. 2. The United States Supreme Court and the lower federal courts have construed this constitutional mandate to invalidate the application of any state law which may in any manner intrude upon the execution of a federal statutory scheme. See, e.g., Louisiana Public Service Comm’n v. F.C.C., 476 U.S. 355, 368-69, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986); CSX Transportation, Inc. v. City of Plymouth, Michigan, 86 F.3d 626, 627-28 (6th Cir.1996). The Supreme Court has dictated that the Supremacy Clause “may entail pre-emption of state law either by express [statutory] provision, by implication, or by a conflict between federal and state law.” New York 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). The “ultimate touchstone” of federal pre-emption is whether Congress intended, via legislation, to exclusively federalize the regulation of a particular subject matter. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). When a congressional intent to supplant the application of state law to a federalized subject matter is apparent, pre-emption “is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 77
Congress has incorporated the following phraseology into the ADA:
[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 transportation under this subpart.
49 U.S.C. § 41713(b)(1). (Emphases added).
Via adoption of the “related to” clause, Congress “express [ed] 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). In Morales, the high Court ruled that the ADA invalidated the application, against commercial airlines, of state laws governing deceptive fare advertising practices, because Congress did not merely preclude direct state regulation of airline prices, routes, and services, but instead sweepingly pre-empted the application of any state law in any context “related to ” those airline functions. Id. at 383-86, 112 S.Ct. 2031. Adhering to its precedential construction of Congress’s similar pre-emption mandate promulgated by the Employee Retirement and Income Security Act (“ERISA”),
The Morales Court also rejected the challenge that state laws which relate to airline prices, routes, and services should be preempted only if those state laws conflict with federal law:
Nothing in the language of [the ADA preemption section] suggests that its “relating to” pre-emption is limited to inconsistent state regulation; and once again our ERISA cases have settled the matter: “The pre-emption provision ... displaces all state laws that fall within its sphere, even including state laws that are consistent with ERISA’s substantive requirements.”
Id. at 386-87, 112 S.Ct. 2031 (emphasis in original; brackets omitted) (quoting Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 829, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985)). The Court noted that, although “some state actions may affect airline fares in too tenuous, remote, or peripheral a manner to have preemptive effect,” id. at 390, 112 S.Ct. 2031 (quotations and brackets omitted) (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)), the regulation of deceptive fare advertising was sufficiently related to airline “prices” to fall within ADA pre-emption. Fi
Subsequently, in American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), the Court reaffirmed Morales by announcing that the ADA superseded an action against a commercial air carrier anchored in the Illinois Consumer Fraud Act because that state enactment regulated advertising and marketing practices, which, when applied against an air carrier, are related to its fares and services. Id. at 226-28, 115 S.Ct. 817. The Court further directed that, although ADA pre-emption insulated commercial airlines from all state-imposed (i.e. statutory or administrative) legal obligations related to prices, routes, or services, a state law contract action which related to one of those functions could nevertheless proceed against a flight service enterprise, because the defendant carrier had voluntarily accepted those contractual obligations:
We do not read the ADA’s preemption clause, however, 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. As persuasively argued by the United States, terms and conditions airlines offer and passengers accept are privately ordered obligations and thus do not amount to a State’s enactment or enforcement of any law, rule, regulation, standard, or other provision having the force and effect of law within the meaning of [the ADA pre-emption statute]. A remedy confined to a contract’s terms simply holds parties to their agreements.
Id. at 228-29, 115 S.Ct. 817 (citation, brackets, quotations, and footnote omitted). See also id. at 232-33, 115 S.Ct. 817. Thus, Wolens clarified that the ADA pre-emption language insulated commercial airlines from all state law enforcement actions which were related to their prices, routes, or services, with the sole exception consisting of voluntarily assumed contractual duties which could be enforced pursuant to state law.
Applying the Court’s directives in Morales and Wolens to the legal question joined by the instant appeal compels the conclusion that a state statutory claim for employment discrimination, and related state common law tort causes of action, should be deemed preempted by the ADA.
The panel majority’s exposure of commercial airlines to the variant employment discrimination standards prevailing under the laws of the several states erroneously subjects those air carriers to potentially inconsistent, and in any event extra-national, regulatory standards and requirements, in contradiction of congressional policy and intent. See Morales, 504 U.S. at 378-79, 112 S.Ct. 2031 (remarking that, by promulgating the ADA, Congress intended to promote economic efficiency, innovation, and low consumer prices by primarily relying upon competitive market forces rather than governmental regulation of the commercial airborne carriage business, but that surviving governmental regulation of the industry would be federal; the ADA pre-emption clause was designed to prevent the states from eviscerating federal deregulation by substituting state regulation); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 55-56, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) (quoting ERISA legislative history which revealed a congressional intention, via enactment of ERISA’s pre-emption term which was analogous to the ADA pre-emption clause, to insulate ERISA-regulated benefit plans from state law regulations, standards, and requirements, so as to ensure national uniformity of regulation, administrative efficiency, and predictability and consistency of decisions). Manifestly, the imposition of multiple, and potentially conflicting or inconsistent, state created employment regulatory schemes upon an interstate commercial airline may impede its ability to provide efficient and low cost carriage services. Those congressionally-sanetioned values may be best promoted by substituting all state law regulation as related to airline prices, routes, or services (including employment actions, decisions, policies, and practices) with exclusive federal regulation and remedies.
Moreover, as noted in Morales, 504 U.S. at 386-87, 112 S.Ct. 2031, even state regulations which are substantially consistent with federal regulations are pre-empted if they relate to an air carrier’s prices, routes, or services. Thus, because an airline’s employment decisions, policies, and practices are so inseparably interrelated with its ability to provide low cost air carriage to the public, any attempted state legislative or other effort that directly or indirectly is in derogation of those abilities should be averted, notwithstanding that the implicated state law regime may harmonize with governing federal law requirements and standards. Accordingly, in the instant case, the plaintiff may advance only her federally-created legal rights against employment discrimination, which, by operation of the ADA, displace her otherwise applicable rights guaranteed by state law.
The panel majority has invoked three obviously distinguishable noneontrolling out-of-eircuit decisions from the Eleventh, Ninth, and Second Circuits, and one nonauthorita-tive disposition by a Michigan state appellate court, in support of its conclusion that a state statutory or common law action arising from alleged employment discrimination is not pre-empted by the ADA. However, those nonprecedential dispositions are irrelevant and/or misconceived, and of no instructive or persuasive precedential value in the instant action.
The panel majority has cited Parise v. Delta Airlines, Inc., 141 F.3d 1463 (11th Cir.1998), a Florida law age discrimination lawsuit launched by a former customer service agent against a commercial air carrier, in which the defendant had alleged that its dismissal of the plaintiff had been prompted not by the plaintiffs age but rather by specified behavior which had allegedly threatened passenger safety. The trial court had ruled that, because the defendant’s implicated employment decision was related to its provision of safe “services” to its passengers, the plaintiffs state law age discrimination action was pre-empted by the ADA. Id. at 1465. On appeal, the Eleventh Circuit reversed the lower court’s dismissal of the plaintiffs complaint and remanded for further proceedings, ruling that the defendant’s .mere contention that it had cashiered the plaintiff for reasons related to customer safety rather than because of age discriminatory animus was insufficient to warrant pre-emption; rather, the defendant had merely proffered a legitimate nondiscriminatory reason for its challenged employment action, which triggered the plaintiffs burden to prove at trial that the defendant’s rationale constituted mere pretext. Id. at 1466-68.
Accordingly, in Parise, defendant Delta Airlines’ fact-specific defense theory (that the plaintiffs alleged troublesome conduct justified the defendant’s termination of the plaintiffs employment because it had threatened the employer’s ability to provide safe “services” to its customers) would fail if the plaintiff could prove that he did not commit the alleged threatening conduct, or that the defendant’s proffered reason for its contested employment action pretextually masked age-related discriminatory animus. However, because the defendant had failed to urge generally that all state law age discrimination cases (and other types of employment discrimination cases) against commercial air carriers should be broadly pre-empted by the ADA because, as a matter of law, all of an airline’s employment actions, decisions, policies,, and practices are related to its provision of “services” to its customers, the Eleventh Circuit had no occasion to address the question presently before this reviewing court. Accordingly, Parise affords no material analytical guidance to the instant panel.
Next, the panel majority has relied upon Abdu-Brisson v. Delta Air Lines, Inc., 128 F.3d 77 (2d Cir.1997), where the Second Circuit reversed the district court’s dismissal, for ADA pre-emption, of an age discrimination lawsuit buttressed by the laws of New York state and New York City, concluding that the state and local age discrimination in employment statutes and ordinances in controversy affected the defendant’s prices, routes, or services in ways which were too tenuous, remote, or peripheral to warrant federal pre-emption. Id. at 81-86. The Abdvs-Brisson court discarded the defendant’s contention that the specific age discrimination litigation at issue, which concerned work assignments driven by seniority considerations, would adversely affect its performance of “services” in that “altering seniority would disrupt flight deck harmony and thus affect services,” because the defendant had also contradictorily alleged “that pilot seniority does not affect the company itself.” Id. at 85. The court remarked that “Delta cannot have it both ways, claiming in [its summary judgment] motion that it has no motive to discriminate because seniority is of no concern to the company, and then claiming [in its motion for dismissal based on ADA pre-emption] that seniority does affect the company because it impacts flight deck relationships, thereby affecting services.” Id.
Accordingly, the Second Circuit concluded that the defendant’s allegations “failed to establish that plaintiffs’ claims affect its ser
The panel majority has also referenced Aloha Islandair Inc. v. Tseu, 128 F.3d 1301 (9th Cir.1997), wherein an airline commenced a declaratory and injunctive relief action against the Hawaii Civil Rights Commission to forestall state enforcement of state disability discrimination laws by reason of the carrier’s rejection of a monocular pilot’s employment application. In Tseu, the airline conceded arguendo that state law race, color, religion, or sex discrimination litigation against it would not be pre-empted by the ADA.
On review, the Ninth Circuit vacated the trial court’s summary judgment for the airline and remanded for further proceedings. Id. at 1304. After noting that the Federal Aviation Administration had medically approved the monocular pilot in question, the Ninth Circuit perfunctorily commented that “we 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 [sic] employment discrimination based on physical disability.” Id. at 1303. However, to the contrary, as developed herein, a clear congressional purpose would be advanced by displacing, in favor of federal law, the application of Hawaiian disability discrimination law (as well as all other state law employment discrimination measures) against air carriers — namely the application of exclusive and uniform federal standards, requirements, and remedies to interstate air carriers concerning their employment actions, decisions, policies, and practices.
Although this differentiation was facially rational in the abstract, it was nonetheless immaterial to the proper analysis of the issue adjudicated by the Gilman court, which issue is currently before the instant panel, namely whether any state law which governs an employer’s employment-related actions, decisions, policies, or practices may be applied against a commercial airline despite the broad pre-emption provision of the ADA. As evolved supra, the Supreme Court in Wolens and Morales recognized a broad congressional intent to preclude all state regulation of matters which are related to airline prices, routes, and services to a degree that is more than merely “tenuous, remote, or peripheral.” See Wolens, 513 U.S. at 222-24, 115 S.Ct. 817; Morales, 504 U.S. at 390, 112 S.Ct. 2031. The question whether the employment actions, decisions, policies, and practices of airlines are so related to the airline’s provision of “services” to its passengers does not turn upon the potential substantive merits of any state law discrimination claim.
Although employment discrimination motivated by performance-related physical characteristics, such as height or weight, may be rational and hence justifiable, whereas employment discrimination animated by nonperformance-related physical characteristics, such as race, age, or gender, is irrational and unjustifiable, that distinction is absolutely in-apposite to the question whether Congress intended to federalize the employment relationship between air carriers and their past, present, or potential future employees.
The “presumption that Congress [by enacting legislation] 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,
Accordingly, I respectfully DISSENT from the panel majority’s reversal of the trial court’s dismissal of the plaintiffs state law complaint.
. Among other things, the ADA posits that, with exceptions not herein applicable:
[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 transportation under this subpart.
49 U.S.C. § 41713(b)(1). (Emphases added). The litigants have agreed that defendant-appellee Northwest Airlines is an "air carrier" within the meaning of this enactment.
Prior to 1994, predecessor versions of the ADA preemption clause were codified at 49 U.S.C.App. § 1305(a)(1). See American Airlines, Inc. v. Wolens, 513 U.S. 219, 222-23 & n. 1, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995).
. "In reviewing the dismissal, all allegations of the complaint must be taken as true and construed in a light most favorable to the nonmovant." Ang v. Procter & Gamble Co., 932 F.2d 540, 544 (6th Cir.1991).
. Northwest is a Minnesota corporation with its principle place of business located within that state. Wellons resides in Michigan. The plaintiff's complaint sought monetary satisfaction to-talling $750,000. See 28 U.S.C. § 1332.
. See 29 U.S.C. § 1144(a) (pre-empting the application of "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.") (Emphasis added).
. At the time of the Morales decision, the ADA saving clause expressly preserved "the remedies now existing at common law or by statute.” Morales, 504 U.S. at 384, 112 S.Ct. 2031 (quoting 49 U.S.C.App. § 1506 (repealed)). The ADA currently contains a saving provision which posits that "[a] remedy under this part is in addition to any other remedies provided by law." 49 U.S.C. § 40120(c).
. See Musson Theatrical, Inc., v. Federal Express Corp., 89 F.3d 1244, 1251 (6th Cir.1996) (positing that common law fraud and misrepresentation causes of action which averred false price advertising by an airborne carriage service were suppressed by the ADA); Travel All Over the World, Inc. v. Saudi Arabia, 73 F.3d 1423, 1434 (7th Cir.1996) (explaining that state common law intentional infliction of emotional distress and fraud claims initiated by a travel agency against Saudi Arabian Airlines were supplanted by the ADA because they related to a "service” function of the defendant, namely its refusal to transport passengers whom had been booked by the plaintiff).
. Because an airline cannot set or charge "prices” or charter "routes” without retaining employees, the employment relationship is arguably also sufficiently related to those dimensions of an air carrier’s undertakings to trigger ADA pre-emption. However, this issue need not be addressed because the close connection of the employment relationship to the airline’s "service" function is independently sufficient to compel pre-emption, as evolved herein.
. It should be emphasized that federal pre-emption, via 49 U.S.C. § 41713(b)(1), of enforcement of state created rights against employment discrimination would not invest any affected commercial airborne carrier with a license to discriminate in employment against any person by reason of race, because Congress and federal administrative agencies have outlawed such practices. See Morales, 504 U.S. at 390-91, 112 S.Ct. 2031. However, the panel majority has correctly noted that the instant plaintiff has conceded that she has failed to judicially assert her federal race discrimination in employment claim within the statutory limitations period. See Appellants’ Brief, filed August 4, 1997, page 2 (citing 42 U.S.C. § 2000e-5(e)).
. Apparently, the plaintiff air carrier misconstrued Colorado Anti-Discrimination Comm’n v. Continental Air Lines, 372 U.S. 714, 83 S.Ct. 1022, 10 L.Ed.2d 84 (1963) to permit state law discrimination actions anchored in race, color, religion, or gender to proceed against air carriers despite the pre-emption provision of the ADA. See Aloha Islandair Inc. v. Tseu, 128 F.3d 1301, 1302 (9th Cir.1997). The plaintiff-appellant Wel-lons in the case sub judice has likewise vigorously advanced Colorado Anti-Discrimination Comm'n. However, that 1963 decision predated passage of the Airlines Deregulation Act of 1978 and its component pre-emption clause, and thus retains no authority on the subject of pre-emption. The Colorado Anti-Discrimination Comm'n Court had merely pronounced that, in the absence of an expressed pre-emption statute, the federal regulation of racial discrimination in employment by commercial airlines, promulgated by sections of the Federal Aviation Act of 1958, administrative regulations, and executive orders, were collectively insufficient to imply a congressional intent to exclusively federalize the regulation of racial employment discrimination in the air carriage industry, and thus' a state law race discrimination in employment claim could be advanced against an airline. Colorado Anti-Discrimination Comm’n, 372 U.S. at 723-25, 83 S.Ct. 1022.
. Although the panel majority expressly declined to comment regarding the analytical soundness of the Tseu decision, it has conceded that Tseu conflicts with other judicial resolutions of the question whether state disability discrimination in employment laws are superseded by the ADA. See majority opinion, pages 495-96 & n. 3, citing Belgard v. United Airlines, 857 P.2d 467, 470-71 (Colo.App.1992) (directing that pilots could not prosecute Colorado statutoiy disability discrimination causes against commercial airlines which had denied them employment because they had incurred corrective eye surgery, in part because employment decisions based upon that physical characteristic were related to the airline's provision of safe customer services), cert. denied, 510 U.S. 1117, 114 S.Ct. 1066, 127 L.Ed.2d 386 (1994); and Fitzpatrick v. Simmons Airlines, Inc., 218 Mich.App. 689, 555 N.W.2d 479, 481 (Mich.App.1996) (ruling that a physical disability discrimination in employment complaint against an air carrier initiated under Michigan’s Elliott-Larsen Act by a terminated baggage handler who had failed the airline’s height and weight strictures was pre-empted by the ADA because an airline’s selection of workers with reference to performance-related physical criteria necessarily related to the provision of "services” by that enterprise), appeal denied, 570 N.W.2d 785 (Mich.1997) (Table).
. See Wolens and Morales, supra, whereby the Supreme Court pre-empted enforcement actions under state law related to alleged fraudulent advertising and marketing practices by airlines, without regard to the potential substantive merits of those actions.
