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Montgomery v. Compass Airlines, LLC

United States District Court, D. Minnesota

March 30, 2015

JEANIE MONTGOMERY, Plaintiff,
v.
COMPASS AIRLINES, LLC, Defendant

Order Filed: January 30, 2015

Page 1013

For Plaintiff: Mark A. Greenman, LAW OFFICE OF MARK A. GREENMAN, Minneapolis, MN.

For Defendant: Rodney A. Harrison, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., St. Louis, MO; Hal A. Shillingstad, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Minneapolis, MN; and David J.A. Hayes III, COMPASS AIRLINES LLC, St. Louis, MO.

Page 1014

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

JOHN R. TUNHEIM, United States District Judge.

Plaintiff Jeanie Montgomery brings this action against her former employer, Defendant Compass Airlines, LLC (" Compass" ), for a violation of the Family and Medical Leave Act (" FMLA" ) and for defamation and negligent infliction of emotional distress. Montgomery, a flight attendant for Compass from 2008 to 2013, suffers from migraine headaches and sinus infections. She alleges that Compass denied her protections to which she was entitled under the FMLA when she requested medical leave, defaming her in the process. Compass moved to dismiss Montgomery's complaint for lack of subject matter jurisdiction and failure to state a claim. On January 30, 2015, United States Magistrate Judge Franklin L. Noel issued a Report and Recommendation (" R& R" ), recommending that the Court grant Compass's motion to dismiss. The Magistrate Judge concluded that Montgomery's FMLA claim is subject to mandatory arbitration under Compass's collective bargaining agreement and that supplemental jurisdiction over the remaining state law claims would not be appropriate.

This matter is now before the Court on Montgomery's objection to the Magistrate Judge's R& R. Because the Court concludes that Compass's collective bargaining agreement contains a clear and unmistakable agreement to arbitrate disputes arising under the FMLA, the Court will overrule Montgomery's objection, adopt

Page 1015

the R& R, and grant Compass's motion to dismiss this action for lack of subject matter jurisdiction.

BACKGROUND

I. FMLA LEAVE REQUESTS AND TERMINATION

Montgomery was employed as a flight attendant by Minnesota-based air carrier Compass from February 2008 to December 13, 2013. (Second Am. Compl. (" Compl." ) ¶ 5, June 18, 2014, Docket No. 10; Decl. of Nicole Mielke (" Mielke Decl." ) ¶ 2, July 30, 2014, Docket No. 18.) Montgomery suffers from migraine headaches and sinus infections that caused her to begin missing work in 2013. (Compl. ¶ ¶ 6-7.) So that she would not be penalized under Compass's absenteeism policy for future absences caused by her medical conditions, Montgomery requested intermittent FMLA leave in September 2013. ( Id. ¶ 8.) Along with her request for leave, Montgomery submitted a certification of health that was signed and faxed to Compass by her doctor. ( Id. ¶ 9.) Because the certification did not specify the number, duration, or intervals of Montgomery's expected treatments, Compass denied her request for FMLA leave. ( Id. ¶ 10.)

In response to Compass's reason for denying her leave, Montgomery got a corrected version of the certification of health and submitted it to Compass. ( Id. ¶ 11.) The revised certification was signed by a nurse, rather than Montgomery's treating physician. ( Id. ¶ 12.) Instead of automatically denying Montgomery's revised request for leave, Compass insisted that she submit to a medical exam performed by a physician with SSM Medical Group, a health care provider with which Compass routinely contracts. ( Id. ¶ ¶ 13-14.) Montgomery complied with the requirement on October 18, 2013. ( Id. ) At the exam, the doctor informed Montgomery that she was not fit for duty as a flight attendant. ( Id. ¶ 14.)

Montgomery contested the finding that she was unfit for duty. Her personal physician sent a letter to Compass on November 12, 2013, explaining that he believed she was fit to fly and not suffering from any conditions that would prohibit her from performing her duties as a flight attendant. ( Id. ¶ 15.) On November 15, 2013, Compass denied Montgomery's request for leave once again, however, citing the SSM Medical Group doctor's conclusion that she was unfit for duty. ( Id. ¶ 16.) At that time, Compass also informed Montgomery that they would be charging her October and November absences as sick days not covered by FMLA leave. ( Id. ) Montgomery requested that her fitness for duty be evaluated by an outside physician chosen by her doctor and Compass's doctor, but Compass refused. ( Id. ¶ ¶ 17-18.)

Compass then sent Montgomery an email on December 9, 2013, expressing concern that she may have submitted " fraudulent, forged and/or altered documentation in connection with a request for leave under

Page 1016

the FMLA." ( Id. ¶ 19.) Compass informed Montgomery that a meeting would be held on December 12, 2013 to discuss this concern. ( Id. ) Compass did not attempt to contact Montgomery's doctor to verify the authenticity of the certification of health, ( id. ¶ 20), but her doctor proactively sent a memorandum to Compass on December 10, 2013, affirming that the certifications Montgomery submitted were authentic, unaltered, and completed by the physician and his staff, ( id. ¶ 21).

Montgomery attended the December 12, 2013 meeting, at which Nicole Mielke, Compass's manager of inflight operations, stated that Montgomery " submitted fraudulent, forged and/or altered documentation in connection with a request for leave under the FMLA." ( Id. ¶ 22; Mielke Decl. ¶ 3.) This statement was made in the presence of Catriona Bagley, a representative from the Association of Flight Attendants (" AFA" ) union, who was present at the meeting on Montgomery's behalf. (Compl. ¶ 22; Mielke Decl. ¶ 13; id., Ex. C at 3-4.)[1] The following day, Compass sent Montgomery a letter terminating her employment " for submitting fraudulent, forged and/or altered documentation in connection with a request for leave under the Family and Medical Leave Act (FMLA)." (Compl. ¶ 23.)

II. COLLECTIVE BARGAINING AGREEMENT

When Montgomery applied for a position as a flight attendant with Compass, she signed a document entitled " Application Certification and Agreement," agreeing to submit " any legal claims or disputes that Compass and [Montgomery] may have . . . [to] final and binding arbitration, conducted pursuant to the American Arbitration Association's National Employment Dispute Resolution Rules, before one neutral arbitrator, who shall be selected by mutual agreement of the parties and bound to follow the applicable law." (Compass's Mem. in Supp. of Mot. to Dismiss, Ex. 1 (" Applicant Certification and Agreement" ) at 2, July 30, 2014, Docket No. 19.) That Agreement remained in effect, and then on May 1, 2013, the AFA entered into a collective bargaining agreement (" CBA" ) with Compass. (Mielke Decl. ¶ 7.)

The CBA regulates the terms of flight attendants' employment and provides rules and conditions for a wide range of employment matters, including leaves of absence, medical examinations, discipline, and termination. ( Id., Ex. A (Compass CBA (" CBA" )).) It also includes a set of procedures for employees to file grievances. ( Id. at 41-45.) For grievances that are not settled in accordance with the initial process, the CBA has established an arbitration system called the System Board of Adjustment (" System Board" ). ( Id. at 46-50.) As laid out in Section 11 of the CBA, the System Board hears and decides grievances, and its decisions are " final and binding" on the parties. ( Id. at 46, 50.)

In addition to the grievance process and creation of the System Board, the CBA contains another provision relevant to Montgomery's action. Section 14 of the CBA governs leaves of absence due to a number of different causes, both health-related and not. ( Id. at 55-58.) Section 14.D states that Compass " will comply with the provisions of the Family and Medical Leave Act (FMLA). FML will run concurrent with any other leave, including sick leave, granted pursuant to this Agreement." ( Id. at 55.) Section 14.K also notes that " [a] Flight Attendant may be required to provide supporting documentation related to eligibility for a leave of absence." ( Id. at 58.)

III. PROCEDURAL HISTORY

Montgomery's union filed a grievance on her behalf on December 20, 2013, alleging that she was terminated without cause. (Mielke Decl. ¶ 14; id., Ex. B (Termination Letter) at 2.) Montgomery separately filed this action on February 28, 2014. ([Original] Compl., Feb. 28, 2014, Docket No. 1.) On July 30, 2014, Compass moved to dismiss Montgomery's action for lack of subject matter jurisdiction and failure to state a claim. (Def.'s Mot. to Dismiss, July 30, 2014, Docket No. 16.) Compass maintained that the CBA required Montgomery to submit her FMLA claim to arbitration before the System Board. On January 30, 2015, the Magistrate Judge issued a Report and Recommendation (" R& R" ) recommending

Page 1017

that the Court grant Compass's motion and dismiss Montgomery's action without prejudice. (Report & Recommendation (" R& R" ) at 14, Jan. 30, 2015, Docket No. 35.) Montgomery timely objected to the R& R. (Pl.'s Objections to the Magistrate Judge's R& R, Feb. 13, 2015, Docket No. 36.) This matter is now before the Court on Montgomery's objections.

ANALYSIS

I. STANDARD OF REVIEW

Upon the filing of a report and recommendation by a magistrate judge, a party may " serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2); accord D. Minn. LR 72.2(b). " The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). " The objections should specify the portions of the magistrate judge's report and recommendation to which objections are made and provide a basis for those objections." Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008). Objections which are not specific but merely repeat arguments presented to and considered by a magistrate judge are not entitled to de novo review, but rather are reviewed for clear error. See, e.g., Martinez v. Astrue, No. 10-5863, 2011 WL 4974445, at *3 (E.D. Pa. Oct. 19, 2011) (citing cases from numerous other jurisdictions); Fed.R.Civ.P. 72 advisory committee's note, subd. (b) (" When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." ).

II. FMLA CLAIM

Compass moves to dismiss Montgomery's FMLA claim under both Federal Rule of Civil Procedure 12(b)(1) and Rule 12(b)(6). Under Rule 12(b)(1), Compass argues that the Court lacks subject matter jurisdiction because the CBA requires her to arbitrate her FMLA claim before the System Board. Subject matter jurisdiction is also lacking, Compass contends, because the Railway Labor Act preemptively controls labor-related disputes in the airline industry and requires Montgomery to submit her claims to mandatory arbitration. Under Rule 12(b)(6), Compass argues that Montgomery's two state law claims should be dismissed for failure to sufficiently plead the essential elements of those causes of action.

A. Rule 12(b)(1) Standard

" A motion to dismiss pursuant to Rule 12(b)(1) challenges the Court's subject matter jurisdiction and requires the Court to examine whether it has authority to decide the claims." Damon v. Groteboer, 937 F.Supp.2d 1048, 1063 (D. Minn. 2013). In deciding a motion under Rule 12(b)(1) the Court must first " distinguish between a 'facial attack' and a 'factual attack.'" Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990) (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980)). " In a facial challenge to jurisdiction, all of the factual allegations concerning jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In other words, in a facial challenge, the court " determine[s] whether the asserted jurisdictional basis is patently meritless by looking to the face of the complaint, and drawing all reasonable inferences in favor of the plaintiff." Biscanin v. Merrill Lynch & Co., 407 F.3d 905, 907 (8th Cir. 2003) (citations omitted). In a factual attack, the court " inquires into and resolves factual disputes," Faibisch v.

Page 1018

Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002), and is free to " consider[ ] matters outside the pleadings," Osborn, 918 F.2d at 729 n.6. The nonmoving party in a factual challenge " does not have the benefit of 12(b)(6) safeguards." Id.

B. Arbitration under the CBA

1. Clear and Unmistakable Waiver of the Judicial Forum

Compass's primary argument in favor of its motion to dismiss is that the CBA requires Montgomery to submit her FMLA claim to arbitration rather than raise it in federal court. Section 11 of the CBA, establishing the System Board, forms a clear agreement to arbitrate " grievances arising under the terms of this Agreement." (CBA at 46.) Neither party disputes that an agreement to arbitrate certain claims exists under the CBA; the issue is whether an FMLA claim is one that must be arbitrated under the agreement. The Court concludes that it is.

Union-negotiated collective bargaining agreements like Compass's CBA may require arbitration of statutory claims, but the waiver of a judicial forum for such claims must be " clear and unmistakable." Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 80, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998). Courts " will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is explicitly stated." Id. (internal quotation marks omitted). Montgomery concedes that an arbitration provision would be clear and unmistakable if it specifically named, within the same section of the agreement, the statutory right subject to mandatory arbitration. For example, the United States Supreme Court found a clear and unmistakable agreement to arbitrate statutory claims in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009). In 14 Penn Plaza, one section of the collective bargaining agreement included language stating that " claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, [or] the Age Discrimination in Employment Act . . . shall be subject to the grievance and arbitration procedures . . . as the sole and exclusive remedy for violations." 556 U.S. at 252.

The language in the 14 Penn Plaza agreement is very similar to the language in the Application Certification and Agreement document Montgomery signed when she applied for a position with Compass:

I UNDERSTAND AND AGREE that . . . any legal claims or disputes that Compass and I may have . . . with respect to my . . . employment or termination of employment (except for worker's compensation and unemployment compensation claims and claims arising out of any applicable collective bargaining agreement) shall be decided exclusively by final and binding arbitration, conducted pursuant to the American Arbitration Association's National Employment Dispute Resolution Rules, before one neutral arbitrator, who shall be selected by mutual agreement of the parties and bound to follow the applicable law. Both Compass and I intend for this agreement to be construed as broadly as possible to cover, by way of example only, any claims under federal, state or local statutes or common law, such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, [or] the Family and Medical Leave Act . . . .

(Applicant Certification and Agreement at 2 (emphasis added).) In her objection to the R& R, Montgomery acknowledges that the provision in 14 Penn Plaza and the ...


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