United States District Court, D. Arizona
G, CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.
Bachir Abdouni brings suit against Defendant NetJets Aviation
Inc. (“NetJets”). Plaintiff claims that NetJets
(1) discriminated against him because of his race
(Arab-Lebanese), (2) created a hostile work environment, and
(3) retaliated against him in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, and 42
U.S.C. § 1981. Doc. 25. NetJets moves to dismiss all
claims. Doc. 27. The motion is fully briefed, and neither
party has requested oral argument. Docs. 27, 34, 35. The
Court will grant the motion in part and deny it in part.
alleges the following facts, which are assumed true for
purposes of this motion. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Plaintiff is a pilot of Middle Eastern
descent and has been employed by NetJets since 1997. Doc. 25
at ¶ 11. He has not been disciplined or counseled for
performance issues or other misconduct during his employment.
Id. at ¶ 28. In 2016, Plaintiff won a bid for a
new flight assignment and was required to pilot a flight
alongside a copilot familiar with the new assignment, who
would evaluate his performance. Id. at ¶ 13.
embarked on the trans-Atlantic training flight with copilot
Charles Hake, who is Caucasian, in May 2017. Id. at
¶ 14. During the outbound and return flights, Hake
repeatedly antagonized Plaintiff by berating him and
questioning his experience and competence. Id. at
¶ 15. After the flight, Hake told NetJets that Plaintiff
left the cockpit and sat in the passenger cabin for an
extended period during the trip. Doc. 25 at ¶ 17.
Plaintiff told NetJets that Hake's allegations were false
and that Hake antagonized Plaintiff throughout the flight.
Id. at ¶¶ 17-23. NetJets immediately
placed Plaintiff on administrative leave. Doc. 25 at
his leave, Plaintiff repeated his story to NetJets, his
supervisors, and managers. Id. He asked that NetJets
verify Hake's allegations by questioning a flight
attendant who would corroborate Plaintiff's account.
Id. NetJets failed to do so and did not take any
disciplinary action against Hake. Id. at ¶ 24.
About six months later, NetJets told Plaintiff that he had to
sign a Last Chance Agreement (“LCA”) if he did
not want his employment terminated. Id. at
¶¶ 25-27. Plaintiff signed the agreement because he
feared losing health insurance coverage for his wife, who was
receiving treatment for Stage IV Cancer. Id.
returning to work, Plaintiff has received heightened and
unfair scrutiny and less favorable assignments. Id.
at ¶¶ 29, 35-37. In March 2018, Hake told
supervisors and coworkers that Plaintiff was a
“Jihadist” who would intentionally crash a
NetJets plane. Id. Although Hake's comments were
reported to NetJets in May 2018 and he continues to make
false and defamatory statements about Plaintiff to
supervisors and coworkers, NetJets has yet to discipline him.
filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), on November 8,
2018. Id. at ¶ 43.
1 and 4 allege race discrimination claims under 42 U.S.C.
§ 1981 and Title VII. Counts 2 and 5 allege hostile work
environment claims under § 1981 and Title VII. Counts 3
and 6 allege retaliation claims under § 1981 and Title
VII. Counts 7 and 8 seek declaratory and injunctive relief
regarding the LCA.
Preemption Under the Railway Labor Act.
argues that Counts 7 and 8, and all of Plaintiff s §
1981 claims (Counts 1-3), are preempted under the Railway
Labor Act (“RLA”) because they are “minor
labor disputes” stemming from the LCA, which in turn is
governed by a collective bargaining agreement
(“CBA”). Doc. 27 at 4. The Court does not agree.
generally preempts claims that require interpretation of a
CBA. Hawaiian Airlines, Inc. v. Norris, 512 U.S.
246, 253 (1994). Whether claims are preempted depends on the
source of the rights asserted. Angeles v. U.S. Airways,
Inc., 2013 WL 622032 at * 5 (N.D. Cal. Feb. 19, 2013)
(citing Espinal v. Northwest Airlines, 90 F.3d 1452,
1456 (9th Cir. 1996)). The RLA does not preempt claims that
seek to enforce rights and duties not created or defined by a
CBA - rights that are independent of the CBA. Hawaiian
Airlines, 512 U.S. at 256-58.
asserts that Counts 7 and 8 are preempted because they
directly attack the LCA, and an attack on the LCA is
essentially an attack on the CBA, which is preempted. But
NetJets never makes the connection between the LCA and CBA.
Without explaining why, NetJets makes a conclusory assertion
that the “LCA . . . is governed solely by and depends
entirely on interpretation of the CBA.” Doc. 27 at
11-13. Absent any clear indication that ...