United States District Court, W.D. North Carolina, Charlotte Division
Cogburn Jr., United States District Judge
MATTER comes before the Court on a Motion to Dismiss
by Defendants American Airlines, Terry Dix, Michelle Magee,
and Mark Moscicki, pursuant to Rules 12(b)(1) and 12(b)(6) of
the Federal Rules of Civil Procedure. (Doc. No. 9).
Plaintiff Rachelle Davis is employed with Defendant American
Airlines (hereinafter “American Airlines” or
“the Company”) as a flight attendant. A
collective bargaining agreement (“CBA”) between
American Airlines and Plaintiff's union governs many of
the terms and conditions of Plaintiff's employment.
American Airlines sent Plaintiff for an independent medical
examination pursuant to the CBA after Plaintiff reported that
she was being surveilled and subjected to “thermography
radiation” attacks by unknown individuals, including
when she was on duty. An independent psychologist determined
that Plaintiff was not fit for duty and the Company placed
her on a medical leave of absence.
claims that she is well now and ready to return to work as a
flight attendant. She has refused to submit, however, to
another independent medical examination to assess her fitness
for duty. She asserts that she is entitled under the CBA to
return to work without undergoing another independent medical
examination, and she claims that American Airlines is
refusing to return her to work because of race, age, and
disability discrimination and retaliation. Plaintiff filed
this action on January 29, 2019, naming as Defendants
American Airlines and three individual defendants, and
purporting to bring employment discrimination claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq., and the
Americans With Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq.
March 4, 2019, Defendants filed the pending motion to
dismiss. Defendants contend that Plaintiff's lawsuit is
subject to dismissal for several reasons. First, Defendants
argue that Plaintiff's claims constitute a minor dispute
under the Railway Labor Act (“RLA”), over which
the Court lacks subject matter jurisdiction. Second,
Defendants contend that Plaintiff failed to timely exhaust
her administrative remedies. Third, Defendants contend that,
even if the Court had subject matter jurisdiction and even if
Plaintiff timely exhausted her administrative remedies, she
fails to state a claim on which relief may be granted. On
March 5, 2019, this Court entered an order granting Plaintiff
14 days to respond to the motion to dismiss. (Doc. No. 11).
Plaintiff has filed her response, Defendants have filed a
Reply, and Plaintiff has filed a Surreply. (Doc. Nos. 12, 16,
18). This action is ripe for disposition.
The Governing Collective Bargaining Agreement
Airlines employs Plaintiff as a flight attendant based out of
the Charlotte International Airport. See (Doc. No.
10-1 at ¶ 2: Decl. of Mark Moscicki, Defs.' Ex. 1).
Many of the terms and conditions of Plaintiff's
employment are governed by a CBA between American Airlines
and Plaintiff's union, the Association of Professional
Flight Attendants. (Id. at ¶ 3; Doc. No. 10-2:
Agreement Between American Airlines, Inc. and Association of
Professional Flight Attendants - APFA (“APFA
CBA”), Defs.' Ex. A). Of particular relevance to
Plaintiff's claims, Sections 25 and 28 of the CBA govern
medical examinations and flight attendants' return to
work after a medical leave of absence. See (APFA CBA
at Sections 25, 28).
30 and 31 of the CBA establish multi-step procedures for the
presentation and resolution of grievances arising under the
CBA, which culminate in a neutral final and binding
arbitration before a System Board of Adjustment. See
(APFA CBA at Sections 30-31). Section 28 of the CBA
establishes procedures for fitness for duty evaluations. The
Company can send a flight attendant for a medical evaluation
with a physician of the Company's choosing when
reasonable grounds exist to believe the flight
attendant's physical or mental health may impair the
performance of her duties. See (APFA CBA at Section
28(A)). If the flight attendant disagrees with the
physician's fitness for duty determination, she can
challenge it by submitting her own physician's opinion.
See (APFA CBA at Section 28(C)). If the physician
selected by the flight attendant has an opinion that differs
from the Company-selected physician's opinion, the
disagreeing physicians mutually appoint a third,
disinterested health care provider to conduct another
examination of the flight attendant, and the third health
care provider's opinion on the flight attendant's
fitness for duty controls. See (APFA CBA at Section
25 of the CBA governs flight attendants' return to work
from leaves of absence. See (APFA CBA at Section
25). Before returning from a medical leave of absence, a
flight attendant must submit a physician's verification
that she is fit for duty. See (APFA CBA at Section
25(E)(3)). Disputes between the Company and the flight
attendant about the flight attendant's ability to return
to work are to be resolved using the procedures for medical
examinations contained in Section 28 of the CBA. See
(APFA CBA at Section 25(E)(4), (7)).
Plaintiff Is Determined Unfit for Duty
August 2015, Plaintiff told Flight Service Manager Terry Dix
that unknown individuals were surveilling her and targeting
her with thermography radiation attacks. See (Doc.
No. 10-3 at ¶ 2: Decl. of Terry Dix, attached as
Defs.' Ex. 2). Plaintiff claimed that the radiation
attacks had been ongoing for approximately eighteen months
and expressed concern that her coworkers might be providing
information about her to the military. (Id.).
Plaintiff told Dix that she did not stay at Company-provided
hotels during layovers because she was unable to escape the
radiation that the military would shoot at her through the
air conditioning vents and windows. (Id. at ¶
3). Rather, Plaintiff spent the nights in airports during
layovers where she could move around easier and avoid the
radiation attacks. (Id.). Plaintiff told Dix that
the attacks could happen anywhere, at any time, ...