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Abdouni v. Netjets Aviation Inc.

United States District Court, D. Arizona

March 4, 2019

Bachir Abdouni, an individual, Plaintiff,
NetJets Aviation Inc., an Ohio Corporation Defendants.



         Plaintiff 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.

         I. Background.

         Plaintiff 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.

         Plaintiff 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 ¶¶ 17-18.

         Throughout 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.

         Since 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. Id.

         Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), on November 8, 2018. Id. at ¶ 43.

         II. Discussion.

         Counts 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.

         A. Preemption Under the Railway Labor Act.

         NetJets 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.

         The RLA 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.

         NetJets 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 ...

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