Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lingley v. Alaska Airlines, Inc. (5/13/2016) sp-7104

Lingley v. Alaska Airlines, Inc. (5/13/2016) sp-7104

             Notice:   This opinion is subject to correction before publication in the P                            ACIFIC  REPORTER.   Readers are   

             requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage,                                   

             Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email corrections@akcourts.us                                             .  



                            THE SUPREME COURT OF THE STATE OF ALASKA                                                          



HELEN  A.  LINGLEY,                                                                  )  

                                                                                      )       Supreme  Court  No.  S-15529  

                                        Appellant,                                    )  

                                                                                                                                                                      

                                                                                      )       Superior Court No.  1PE-12-00047 CI  

             v.                                                                       )  

                                                                                                                       

                                                                                      )       O P I N I O N  

                                                           

ALASKA AIRLINES, INC. and                                                             )  

                                                                                                                                        

DAN KANE,                                                                            )       No. 7104 - May 13, 2016  

                                                                                      )  

                                        Appellees.                                    )  

                                                                                      )  



                                                                                                                                          

                           Appeal from the Superior Court of the State of Alaska, First  

                                                                                                                            

                           Judicial District, Petersburg, William B. Carey, Judge.  



                                                                                                                                                     

                           Appearances: FrederickW.Triem,Petersburg, for Appellant.  

                                                                                                                                     

                           Gregory  S.  Fisher  and Elizabeth  P.  Hodes,  Davis Wright  

                                                                                           

                           Tremaine LLP, Anchorage, for Appellees.  



                                                                                                                                             

                           Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and  

                                            

                           Bolger, Justices.  



                                                  

                           BOLGER, Justice.  



I.           INTRODUCTION  



                                                                                                                                                          

                           A  former  airline  employee  sued  her  former  employer  for  wrongful  



                                                                                                                                                                            

termination without first attempting to arbitrate her claims under the provisions of a  



                                                                                                                                                              

collective bargaining agreement subject to the federal Railway Labor Act. The superior  



                                                                                                                                                                       

court denied the employee leave to amend her complaint, concluding that her claims and  



                                                                                                                                                                    

proposed claims were precluded by failure to exhaust contractual remedies and were  



                                                                                                                                                                        

                                                                             

preempted by the Railway Labor Act. But the collective bargaining agreement does not  


----------------------- Page 2-----------------------

clearly and unmistakably waive the employee's right to litigate her claims, a prerequisite                                                                                                           



to finding her claims precluded.                                                        And a number of her proposed claims may have an                                                                                         



independent state law basis that does not depend on an interpretation of the collective                                                                                                                     



bargaining agreement; such claims would not be preempted by the Railway Labor Act.                                                                                                                                                       



Accordingly we reverse the superior court order denying leave to amend.                                                                                                         



II.               FACTS AND PROCEEDINGS                   



                                    In February 2012 Alaska Airlines terminated Helen Lingley, a longtime                                                                                                   



employee, for violating company rules and polices after she allegedly took earbuds from                                                                                                                                   

aleft-on-boardbox,1  

                                                                                                                                                                                                                             

                                                       madecontradictorystatementsduring theensuinginvestigation, and  



                                                                                                                                                                                                                               

                                                                                                                                                 

made  discourteous  comments  about  her  coworkers.                                                                                                 The  terms  and  conditions  of  



                                                                                                                                                                                                           

Lingley's employment were governed by a collective bargaining agreement negotiated  



                                                                                                                                                                                                              

byLingley's union, theInternational Association of Machinists and AerospaceWorkers,  



                                                                                                                                 2  

                                                                                                                                                                                                     

pursuant to the federal Railway Labor Act (RLA).                                                                                     This agreement broadly incorporated  



                                                                                                                                                                                                                          

Alaska Airlines' rules and policies and gave the company the right to change those rules  



                                                                .  Employees were required to be familiar with any changes.  

                                                                                                                                                                                                                                  

and policies at any time 



                                    The agreement set forth a three-step process for grieving decisions that  

                                                                                                                                                                                                                            



resulted  in  the  loss  of  pay,  namely  discharge  and  suspension.                                                                                                           The  first  two  steps  

                                                                                                                                                                                                                        



consisted of an "initial hearing" and a "secondary hearing," each presided over by a  

                                                                                                                                                                                                            



representative of Alaska Airlines; an employee could be represented by "the Local Shop  

                                                                                                                                                                                                                         



                                                                                                                                                                                                                                

Steward and/or the Union General Chair or his/her designee."  The third step was an  

                                                                                                                                                                          



                                                                                                                                                                                                                       

appeal  before  the  System  Board  of  Adjustment,  a  three-member  arbitration  panel  



                                                                                                                                                                                                                   

consisting of "a Company member, a Union member[,] and a neutral referee."  During  



                  1                 Low-value items left behind by passengers were placed in a left-on-board                                                                                      



box; company rules and polices prohibited employees from taking these items.                                                                                                                                        



                  2                 45 U.S.C.  151-188 (2012).  

                                                                                                 



                                                                                                                -2-                                                                                                      7104
  


----------------------- Page 3-----------------------

this final step, employees could be represented by "such person or persons as they may  

                                                                                                                             



choose and designate, in conformance with the constitution of the Union."  

                                                                                                                   



                    After receivingthedischargenotice,Lingley initiated thegrievanceprocess  

                                                                                                                         



through her union.   Over the next few months Alaska Airlines held two hearings in  

                                                                                                                                 



which a union representative represented Lingley's interests.   Before each hearing,  

                                                                                                                       



Alaska Airlines offered Lingley a last-chance agreement which would have allowed  

                                                                                                                       



Lingley to remain employed if she admitted just cause existed for her discharge. Lingley  

                                                                                                                         



declined both offers.  

                                  



                    Followingtheinitial and secondaryhearings, thepresidingcompanyofficer  

                                                                                                                          



issued written decisions denying Lingley's grievance.   The union then appealed the  

                                                                                                                               



grievance to the System Board of Adjustment for arbitration.  But about three months  

                                                                                                                        



later, the union informed Lingley that "no appeal will be made and the case is now closed  

                                                                                                                          



in [its] files."  That same day the union sent a letter to the System Board of Adjustment  

                                                                                                                  



asking it to remove the matter from its docket.   Nothing in the record suggests that  

                                                                                                                              



Lingley attempted to pursue arbitration on her own.  

                                                                                 



                    About four months later, in December 2012, Lingley filed a complaint in  

                                                                                                      



the superior court alleging wrongful termination and breach of the implied covenant of  

                                                                                                                                 



good faith and fair dealing.  The complaint named Alaska Airlines and Dan Kane, the  

                                                                                                                               



manager  who  signed  her  discharge  notice,  as  defendants  (collectively,  "Alaska  

                                                                                                                      



Airlines").  That complaint apparently was not served.  In April 2013, Lingley filed an  

                                                                                                                                



amended  complaint again  broadly  alleging  wrongful termination  and breach  of the  

                                                                                                                               



implied covenant of good faith and fair dealing.  

                                                                          



                    In response, Alaska Airlines moved to dismiss under Alaska Civil Rule  

                                                                                                                            



12(b)(1) for lack of subject matter jurisdiction.  It argued that (1) the RLA preempted  

                                                                                                                    



Lingley's claims and (2) the complaint was precluded by her failure to exhaust the  

                                                                                                                               



remedies available under the collective bargaining agreement.  To support the motion,  

                                             



                                                               -3-                                                         7104
  


----------------------- Page 4-----------------------

Alaska Airlines attached several exhibits including the collective bargaining agreement,                                                                                                                                                                                    



various   company   rules   and   policies,   Lingley's   grievance   submission   form,   and  



 correspondence between the union and Alaska Airlines about the grievance.                                                                                                                                                                                                       



                                                Lingley then moved for a stay pending discovery, arguing that she needed                                                                                                                                                                  



information   within   Alaska   Airlines'   exclusive   control.     As   examples   she   cited   the  



 exhibits attached to the motion to dismiss, internal memos and emails, her personnel file,                                                                                                                                                                                                          



 and information that would be obtained via Alaska Civil Rule 26(a) disclosures. Alaska                                                                                                                                                                                                  



Airlines opposed, asserting that the jurisdictional facts that served as the basis for its                                                                                                                                                                                                                



motion to dismiss were established and undisputed.                                                                                                                                       



                                                Lingley then requested leave to file a second amended complaint.                                                                                                                                                                                  The  



proposed amended complaint alleged five new claims:                                                                                                                                                   age discrimination, economic                                              



 discrimination, retaliation, whistleblowing, and retribution.                                                                                                                                                        Alaska Airlines opposed,                                    



 arguing that the claims were futile based on the same preemption and preclusion grounds                                                                                                                                                                                              

                                                                                                                                                        3   The superior court agreed and accordingly  

that applied to the first amended complaint.                                                                                                                                                                                                                             



 denied  leave  to  amend.                                                                       The  court  also  determined  that,  as  Alaska  Airlines  had  

                                                                                                                                                                                                                                                                                                   



 contended, Lingley's economicdiscrimination claimwas legally deficient andthus futile  

                                                                                                                                                                                                                                                                                                 

because economic status is not a protected class.4  

                                                                                                                                                                                 



                                                The  superior  court  also  denied  Lingley's  motion  for  a  discovery  

                                                                                                                                                                                                                                                                            



 continuanceanddismissed Lingley's first amended complaint underCivil Rule12(b)(1),  

                                                                                                                                                                                                                                                                                   



                        3                       Though leave to amend a complaint "shall be freely given when justice so                                                                                                                                                                                   



requires," a court may deny leave to amend when the proposed claims would be futile.                                                                                                                                                                                                                                  

Patterson v. GEICO Gen. Ins. Co.                                                                                       , 347 P.3d 562, 568-69 (Alaska 2015) (quoting Alaska                                                                                                               

R.  Civ. P. 15(a)).                  



                        4                       Lingley's  economic  discrimination  claim  alleged  that  Alaska  Airlines  

                                                                                                                                                                                                                                                                                    

terminated her to replace her "with a younger and newer employee who would have little  

                                                                                                                                                                                                                                                                                                   

 or no seniority and thus could be paid at a lower level of compensation."  

                                                                                                                                                                                                                                                                    



                                                                                                                                                     -4-                                                                                                                                         7104
  


----------------------- Page 5-----------------------

                                                                                                                                                      5  

concluding that the claims were preempted by the RLA.                                                                                                     With respect to Lingley's                    



discovery motion, the court determined that the jurisdictional facts were established and                                                                                                                               



undisputed; as such the court could consider the facts alleged in Alaska Airlines' motion,                                                                                                                    



the affidavits, and the attached documentary evidence.                                                                                               The court further noted that                                      



Lingley had access to all relevant facts and thus delaying the proceedings likely would                                                                                                                          



be of little benefit to Lingley and would risk prejudice to Alaska Airlines.                                                                                                                      



                                   Based   on   these   decisions,   Alaska   Airlines   moved   for   final   judgment.   



                                                                                                                                                                                                                        

Lingley opposed, contending that the case was ongoing.                                                                                              She argued that the court had  



                                                                                                                                                                                                      

yet to address several of her state law claims including those for defamation, intentional  



                                                                                                                                                                                                           

infliction of emotional distress, prima facie tort, and spoliation of evidence. In response  



                                                                                                                                                                                                                        

the superior court issued an order clarifying that it had already disposed of all claims and  



                                                                                                                                                                                                              

accordingly thelitigation had concluded. It explained thatthe unresolved claims Lingley  



                                                                                                                                                                                                                      

cited had not been explicitly pled nor could they be inferred from her complaints.  



                                                                                                                                                                                                              

                                   Alaska Airlines then filed a second motion to enter final judgment. Lingley  



                                                                                                                                                                                                                          

opposed, again citing the unresolved state law claims; three days later she moved for the  



                                                                                                                                                                                                                          

court to reconsider its clarifying order.  The superior court denied Lingley's motion for  



                                                                                                                                                                    .  Lingley appeals.  

                                                                                                                                                                                              

reconsideration and entered final judgment for Alaska Airlines 



III.              STANDARD OF REVIEW  

                                                                  



                                   The superior court denied Lingley leave to amend her complaint.   We  

                                                                                                                                                                                                                      

generally "review the denial of a motion to amend a pleading for abuse of discretion."6  

                                                                                                                                                                                                                                    



                 5                 In a footnote, the superior court noted that Alaska Airlines' motion to                                                                                                                  



dismiss "could also be granted on the grounds that . . . Lingley failed to exhaust the                                                                                                                                   

contractual   remedies   that   were   available   to   her   under   the   [collective   bargaining  

agreement]."   



                 6                 Patterson, 347 P.3d at 568 (citing Krause v. Matanuska-Susitna Borough,  

                                                                                                                                                                                                         

                                                                                             

229 P.3d 168, 174 (Alaska 2010)).  

                                                                        



                                                                                                             -5-                                                                                                    7104
  


----------------------- Page 6-----------------------

A   superior   court   abuses   its   discretion   "when   the   decision   on   review   is   manifestly  



                       7  

unreasonable."                                                                                                            

                          "It is within a trial court's discretion," however, "to deny such a motion  



                                                                                                                           

where amendment would be futile because it advances a claim or defense that is legally  

                                    8  We use our independent judgment to determine whether such  

                                                                                                                              

                             

insufficient on its face." 

an amendment would be legally insufficient.9                             We may affirm the superior court on  

                                                                                                                                 

independent grounds, but only when those grounds are established by the record.10  

                                                                                                                  



                     Thesuperior court also dismissed Lingley'sactionforlack ofsubject matter  

                                                                                                                           



jurisdiction under Civil Rule 12(b)(1).  "We review de novo a superior court's decision  

                                                                                                                        

to dismiss a complaint for lack of subject matter jurisdiction."11  In reviewing de novo  

                                                                            



we exercise our independent judgment, adopting the rule of law most persuasive in light  

                                                                                                                              

of precedent, reason, and policy.12  

                                                      



                     This appeal also requires us to interpret a collective bargaining agreement.  

                                                                                                                                      

"Contract interpretation presents a question of law that we review de novo."13  Our "goal  

                                                                                                                             



          7         Ranes  &  Shine,  LLC  v.  MacDonald  Miller  Alaska,  Inc.,  355  P.3d  503,  508  



(Alaska  2015)   (citing   Tufco,  Inc.  v.  Pacific  Envtl. Corp.,   113  P.3d   668,   671   (Alaska  

2005)).   



          8         Patterson, 347 P.3d at 568 (Alaska 2015) (quoting Krause, 229 P.3d at  

                                                                                                                                  

 174).  



          9         Id.  

                           



           10        Seybert v. Alsworth , 367 P.3d 32, 36 (Alaska 2016).  

                                                                                           



           11       Healy Lake  Vill. v. Mt. McKinley Bank, 322 P.3d 866, 871 (Alaska 2014)  

                                                                                                                            

(quoting Ruckle v. Anchorage Sch. Dist., 85 P.3d 1030, 1033 (Alaska 2004)).  

                                                                                                            



           12       Id.  

                           



           13       Larsen  v. Municipality  of Anchorage , 993 P.2d 428, 431 (Alaska  1999)  

                                                                                                                            

(citing Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116, 1119 (Alaska 1997)).  

                                                                                                                  



                                                                -6-                                                         7104
  


----------------------- Page 7-----------------------

                                                                                                               14  

is to 'give effect to the reasonable expectations of the parties.' "                                               We discern the parties'       



intent by looking "to the written contract as well as extrinsic evidence . . . at the time the                                                         

                                     15    If there is conflicting extrinsic evidence, we, not a jury, must  

contract was made."                                                                                                                                



"decide the question of meaning except where the written language, read in context, is  

                                                                                                                                                         

reasonably susceptible to both asserted meanings."16  

                                                                        



                        Finally this appeal requires statutory interpretation, which is a question of  

                                                                                                                                                        

law.17   We decide questions of law using our independent judgment, adopting the "most  

                                                                                                                                                  

persuasive rule of law in light of precedent, reason, and policy."18   When interpreting a  

                                                                                                                                                          

statute we consider its text, legislative history, and purpose.19  

                                                                                             



IV.	        DISCUSSION  



            A.	         The Superior Court Abused Its Discretion When It Denied Lingley's  

                                                                                                                                          

                        Motion To Amend Her Complaint.  

                                                                      



                        The  superior  court  denied  Lingley's  motion  to  amend  her  complaint,  

                                                                                                                                        



concluding that the claims in the proposed amended complaint were futile because  

                                                                                                                                             



Lingley did not exhaust her contractual remedies and because the RLA preempted many  

                                                                                                                                                   



of Lingley's claims.   

                                      



            14          Id.  (quoting  Stepanov  v.  Homer  Elec.  Ass'n ,   814  P.2d  731,  734  (Alaska  



 1991)).  



            15          Id.   (quoting   Municipality   of  Anchorage   v.   Gentile,   922   P.2d   248,   256  



(Alaska   1996)).  



            16          Id. (quoting Johnson v. Schaub, 867 P.2d 812, 818 (Alaska 1994)).  

                                                                                                                                     



            17          Donahue v. Ledgends, Inc., 331 P.3d 342, 346 (Alaska 2014).  

                                                                                                                             



            18          Id. (citing ASRC Energy Servs. Power & Commc'ns, LLC v. Golden Valley  

                                                                                                                                                 

Elec. Ass'n , 267 P.3d 1151, 1157 (Alaska 2011)).  

                                                                             



            19	         Id.  

                               



                                                                           -7-	                                                                    7104
  


----------------------- Page 8-----------------------

                                                                                                                                                   20  

                          Leave to amend "shall be freely given when justice so requires."                                                              But we   



have recognized that denial of leave to amend might be justified given "undue delay, bad                                                                       



faith or dilatory motive . . . [by] the movant, repeated failure to cure deficiencies by                                                                         



amendments . .        .   ,   undue prejudice                           to  the   opposing  party   .   . .                                                    

                                                                                                                               ,  [or] futility  of the  

                                  21  As noted above, we use our independent judgment in determining  

                                                                                                                                               

amendment, etc." 

whether an amendment would be legally insufficient.22  

                                                                                



                          1.	         Lingley's motion to amend was timely and granting leave would  

                                                                                                                                                          

                                      not cause apparent prejudice to Alaska Airlines.  

                                                                                                                        



                         Alaska Airlines argues that allowing Lingley to litigate her claims would  

                                                                                                                                     



cause the airline prejudice because it has a right to resolve the dispute "in the forum  

                                                                                                                                                          



mandated by Congress and selected by theparties'collectivebargaining agreement"; this  

                                                                                                                                                                



alternative forum, it contends, shields it from the time and expense of litigation. Lingley  

                                                                                                                                                       



argues that Alaska Airlines points only to "run-of-the-mill tasks of defending a . . .  

                                                                                                                                                                        



lawsuit," grounds that do not support finding undue prejudice.  We agree.  

                                                                                                                                               



                         A superior court may deny leave to amend when allowing the amendment  

                                                                                                                                                

would cause undue prejudice to the other party.23  

                                                                                                                                                            

                                                                                              But time and additional expense alone  

                                                        24   "If the underlying facts or circumstances relied upon by  

                                                                                                                                                                  

do not support such a finding. 



             20	         Alaska R. Civ. P. 15(a).            



             21          Patterson v.  GEICO Gen. Ins.  Co.,  347 P.3d  562,  569  (Alaska  2015)  

                                                                                                                                                                        

(quoting Miller v. Safeway, Inc., 102 P.3d 282, 294 (Alaska 2004)).  

                                                                                                                    



             22          Id.  at  568.  



             23          Id.  at  569.  



             24          See  Miller,   102  P.3d  at  295  ("Given  that  the  timeline  for  discovery was  



extended  after  [the  nonmoving  party]  received  notice  of  [the  movant's]  new  claims,  [the  

nonmoving  party]  was  not  unreasonably  burdened  by  the  task  of  preparing  for  litigation  

                                                                                                                                               (continued...)  



                                                                                -8-	                                                                        7104
  


----------------------- Page 9-----------------------

a plaintiff may be a proper subject of relief, [the plaintiff] ought to be afforded an                                                                              



                                                                                         25  

opportunity to test [the] claim on the merits."                                              



                          Lingley moved to file a second amended complaint about two months after  

                                                                                                                                                                 



she filed her first amended complaint. This motion was timely and nothing in the record  

                                                                                                                                                             



suggests that granting it would have caused Alaska Airlines undue prejudice.  The court  

                                                                                                                                                                



had yet to set a trial date, and the discovery process had yet to begin. At this early stage,  

                                                                                                                                                               



the hardship caused by denying Lingley the opportunity to test the merits of her claims  

                                                                                                                                                             



outweighs any prejudice to Alaska Airlines.  

                                                                      



                          2.	          Because the collective bargaining agreement did not clearly and  

                                                                                                                                                                  

                                       unmistakably waive Lingley's right to litigate, the claims were  

                                                                                                                                                                

                                       not subject to mandatory arbitration.  

                                                                                              



                          The superior court ruled that Lingley's proposed claims were precluded by  

                                                                                                                                                                     



her failure to exhaust administrative remedies. Though an employee may have the right  

                                                                                                                                                                 



to pursue a claim in state court - because the claim is not preempted by the RLA - an  

                                                                                                                                                                     

employee may waive the right to litigate the claim through her employment contract.26  

                                                                                                                                                                           



                                                                                                                                                    

Lingley contends that her employment contract (the collective bargaining agreement)  



                                                                                                              

does not waive her right to pursue claims in state court.  



(...continued)  

of the new theories.").       



             25           Id.   (alteration  omitted)   (quoting   Foman   v.   Davis,   371   U.S.   178,   182  



(1962)).  



             26  

                          Bernard  v. Alaska Airlines, Inc., 367  P.3d 1156,   1163-64 (Alaska  2016),  

(citing  Hammond  v.  State,  Dep't  of  Transp.  & Pub.  Facilities,  107  P.3d  871,  877  (Alaska  

2005))  (discussing  language  in  a  collective  bargaining  agreement  that  is  identical  to  that  

in  the  agreement  governing  Lingley's  employment).  



                                                                                  -9-	                                                                          7104
  


----------------------- Page 10-----------------------

                       In  Bernard v. Alaska Airlines, Inc.                            we recently considered a collective           



                                                                                                                                   27  

bargaining agreement that is substantively the same as the one now before us.                                                                  

                                                                                                                                       We held  



                                                                                                                                             

that the agreement does not preclude litigation of an employee's claims in state court  



                                                                                                                                                   

because the agreement does not clearly and unmistakably waive the employee's right to  

          28   That analysis, which we summarize below, applies equally here.  

                                                                                                                                

do so. 



                                                                                                     29 

                       A waiver must be "clear and unmistakable."    "We will not infer from a  

                                                                                                                                                    



general contractual provision that the parties intended to waive a statutorily protected  

                                                                                                                                      

right unless the undertaking is 'explicitly stated.' "30                                    To determine whether a waiver is  

                                                                                                                                                    



"clear and unmistakable," we apply a two-part test:  The contract must either (1) have  

                                                                                                                   



an arbitration clause with a provision through which "employees specifically agree to  

                                                                                                                                                   



submit  all  .  .  .  causes  of  action  arising  out  of  their  employment  to  arbitration"  or  

                                                                                                                                                  



(2) explicitly incorporate the "statutory . . . requirements in addition to a broad and  

                                                                                                                                                

general arbitration clause."31  

                                  

                                                                                                                                          32 does  

                       The collective bargaining agreement, as we explained in Bernard,  

                                                                                                                           



not satisfy either prong of this test.  First, though the agreement appears to grant the  

                                                                                                                                                 



System  Board  of  Adjustment  broad  jurisdiction  over  disputes  between  covered  

                                                                                                                                       



employees and the company - authorizing the board to hear disputes  "growing out of  

                                                                                                                                                   



grievances  or  out  of  interpretation  or  application  of  any  of  the  terms  of  this  

                                                                                                                                               



            27         Id.  at 1163-65.
   



            28  

                       Id.  at 1165.
   



            29         Id. at 1163 (emphasis in original) (quoting Metro. Edison Co. v. NLRB, 460
  

                                                                                                                                                

U.S. 693, 708 (1983)).  

                                          



            30         Id. (quoting Metro. Edison, 460 U.S. at 708).  

                                                                                                       



            31         Id. (quoting Hammond, 107 P.3d at 877).  

                                                                                                 



            32         Id. at 1163-65.  

                                  



                                                                       -10-                                                                  7104
  


----------------------- Page 11-----------------------

[a]greement" - the agreement also appears to limit the board's authority.                                                                              (Emphasis  



added.)     By   its   terms,   the   agreement   only   authorizes   the   board   to   hear  "properly  



submitted" disputes. To proceed to arbitration, the agreement narrowly defines "proper                                                                       



submission":   "[T]he General Chair                                     may appeal to arbitration within thirty . . . calendar                             



                                                                                                                                                                        

days."  (Emphasis added.)  The agreement also narrowly defines the System Board of  



                                                                                                                                                                       

Adjustment's duties:  "The Board shall consider any dispute properly submitted to it by  



                                                                                                                                                                      

the General Chair of the Union or his/her designee, or by the Representative of the  



                                                                                                                                                                   

Company"; "[n]o matter shall be considered by the Board which has not first been fully  



                                                                                                                                                                              

processed in accordance with the grievance and appeal provisions of this [a]greement."  



                                                                                                                                                                      

(Emphases added.) The plain language of the agreement does not give an employee, like  



                                                                                                                                                       

Lingley,  the right to  independently  submit her  claims to arbitration; the agreement  



                                                                                                                                                               

recognizes only those appeals brought by the union or its representatives or by Alaska  

                 33  Because of this apparent foreclosure, the agreement fails the first prong of the  

Airlines.                                                                                                                                                              



test for finding clear and unmistakable waiver of the right to pursue claims in state  

                                                                                                                                              

court.34  



                           The collective bargaining agreement also fails the second prong of the test  

                                                                                                                                                                      



because   it   did   not   explicitly   incorporate   Alaska   Airlines'   protections   against  

                                                                                                                                                            

discrimination, retaliation, and whistleblowing.35                                                  The agreement broadly incorporates  

                                                                                                                                                    



             33            As in      Bernard, we do not decide whether irrespective ofthe language of the                                                             



collective bargaining agreement Lingley had an individual right to arbitrate her claims                                                                         

when her union declined to do so.                                     See id.       at 1164.   



             34           Id. at 1163-64.  

                                       



             35            See id. at 1164-65. ("Thecollectivebargaining agreement at issue here also  

                                                                                                                                                                     

lacks  the  'explicit  incorporation  of  the  statutory  anti-discrimination  requirements'  

                                                                                                                                                

necessary to the second prong of the Hammond test." (quoting Hammond, 107 P.3d at  

                                                                                                                                                                         

877)).  



                                                                                  -11-                                                                            7104
  


----------------------- Page 12-----------------------

Alaska Airlines' rules and policies. These policies include those that protect employees                                                                                                                                                                                                                                                                      



from retaliation                                                                for  airing   good   faith   concerns   about   ethical   or   compliance   issues,  



harassment, and discrimination.                                                                                                                      The anti-discrimination provision provides:                                                                                                                       



                                                              The Company is an equal opportunity employer. This means                                                                                                                                                                                               

                                                              the Company is committed to providing equal consideration                                                                                                                                                            

                                                              in    all    employment   decisions    (including,    for    example,  

                                                              recruiting,    hiring,    training,    promotions,    pay    practices,  

                                                              benefits,   disciplinary   actions   and   terminations)   without  

                                                              regard to age, race, color, gender, national origin, religion,                                                                                                                                                                              

                                                              marital status, sexual orientation, disability, veteran status or                                                                                                                                                                                                          

                                                              any other classification protected by federal, state, or local                                                                                                                                                                                               

                                                              laws . . . .         



                                                              Acts of discrimination and harassment not only violate our                                                                                                                                                                                                         

                                                              Company values and policies, but                                                                                                                               may also violate federal,                                                       

                                                             state, and local laws                                                                            and are strictly prohibited.                                                                                                  



(Emphasis added.)                                                                       The anti-retaliation clause provides:                                                                                                                                         



                                                              The Company does not tolerate retaliation of any kind for                                                                                                                                                                                                            

                                                              raising concerns or making a report in good faith about an                                                                                                                                                                                                              

                                                              ethical or compliance issue. To be made in "good faith" does                                                                                                                                                                                                   

                                                              not mean you have to be right, however, it does mean you                                                                                                                                                                                                         

                                                              have to provide complete and accurate information and you                                                                                  

                                                              have to have a reasonable belief that it may be true.                                                                                                                                                                                           



                                                              Like  Bernard,noneoftheincorporatedprovisionstowhich AlaskaAirlines                                                                                                                                                                                                                                          

                                                                                                                                                                        36  And, most importantly, the collective bargaining  

directs us expressly cites Alaska law.                                                                                                                                                                                                                                                                                                                        



agreement grants Alaska Airlines the power to unilaterally modify its rules and polices  

                                                                                                                                                                                                                                                                                                                                                                              



"during the term of the [a]greement."  Under such circumstances, it cannot be said that  

                                                                                                                                                                                                                                                                                                                                                                                              



an employee clearly and unmistakably waives her right to pursue state law claims in state  

                                                                                                                                                                                                                                                                                                                                                                                           



                               36                             See id. at 1164-65.  

                                                                                                          



                                                                                                                                                                                               -12-                                                                                                                                                                                      7104  


----------------------- Page 13-----------------------

court because to do so an employee must know what rights she is waiving.                                                                        37  We thus  



would reach the same conclusion even if the incorporated company rules and policies                                                                    



                                                    38  

explicitly cited Alaska law.                              



                                                                                                                                                          

                          Thesuperior court's conclusion that Lingley's proposedclaimswerebarred  



                                                                                                                                                   

by her failure to exhaust contractual remedies was mistaken because the collective  



                                                                                                                                                            

bargaining agreement does not clearly and unmistakably waive her right to litigate those  



claims.  



                                                                                                                                            

                         3.	          The RLA does not preempt claims that have an independent  

                                                                                                                                               

                                      state law basis and do not turn on the collective bargaining  

                                      agreement.  



                                                                                                                                                                 

                          The superior court ruled that many of Lingley's claims were preempted by  



                                                                                                                                                

the RLA and therefore were futile. The RLA provides a "mandatory arbitral mechanism  



                                                                                                                                 39 

                                                                                                                                                    

for 'the prompt and orderly settlement' of two classes of disputes"                                                                 :  major disputes,  



                                                                                                                                                          

which relate to "the formation of collective [bargaining] agreements or efforts to secure  



             37	  

                         Id.   



             38  

                                                                                                                                                                

                         Id. at 1165. ("[W]e could not find a 'clear and unmistakable' waiver of the  

                                                                                                                                                                   

employee's right to pursue state law claims in state court when the employer retains a  

unilateral right to modify or eliminate the language on which the waiver is based.").                                                           



             39          Hawaiian  Airlines,  Inc.  v.  Norris,  512  U.S.  246,  252  (1994)  (quoting  

                                                                                                                                                     

45 U.S.C.  151a (1988)).  

                                   



                                                                               -13-	                                                                        7104
  


----------------------- Page 14-----------------------

             40  

them";            and  minor   disputes, which                           include "controversies over the meaning                                            of an   



                                                                                                                                     41  

existing collective bargaining agreement in a particular fact situation."                                                                                        

                                                                                                                                          Claims that fall  



                                                                   42  

                                                                        

                                               

into either category are preempted. 



                                                                                                                                                                   

                          Alaska Airlines contends, as the superior court concluded, that many of  



                                                                                                                                                                

Lingley's  proposed  claims  are  minor  disputes  that  must  be  resolved  through  the  



                                                                                                                                                            

mechanismsprovided bytheRLA, including thecollectivebargaining agreement'sthree- 



                                           .  But we conclude that Lingley's claims may have an independent                                     

step grievance process 



state law basis and that, as so constructed                                                                                                         

                                                                                 , do not require us to interpret the collective  



                                                                                                                                                                

bargaining agreement.   Such claims would not be preempted:   The RLA "does not  



                                                                                                                                                  

pre-empt  causes  of  action  to  enforce  rights  that  are  independent  of  the  [collective  

                                              43  "Pre-emption ofemployment standards'within thetraditional  

                                                                                                                                                    

bargaining agreement]." 



                                                                                                                     44  

police power of the [s]tate' 'should not be lightly inferred.' "                                                          

                                                                                                                    



                                       a.	         The age discrimination claim is not preempted because it  

                                                                                                                                                                    

                                                    could be based on state statute.  

                                                                                                     



                          Alaska Airlines does not dispute the superior court's conclusion that the  

                                                                                                                                                                        



RLA does not preempt Lingley's age discrimination claim. In the wrongful termination  

                                                                                                                                                 



context, a state law claim may be "pre-empted, not because the RLA broadly pre-empts  

                                                                                                                                                    



state-law claims based on discharge or discipline, but because the employee's claim was  

                                                                                                                                                                



             40           Id.  (alteration in original) (quoting                            Consol. Rail Corp. v. Ry. Labor Execs.'                      



Ass'n , 491 U.S. 299, 302 (1989)).                



             41	          Id. at 253 (quoting Bhd. of R.R. Trainmen v. Chi. River &Ind. R.R. Co., 353  

                                                                                                                                                                

U.S. 30, 33 (1957)).  

                        



             42           Id . at 252-53.  

                                      



             43           Id. at 256.  

                                      



             44           Id.  at 252 (quoting Fort Halifax Packing  Co. v.  Coyne, 482 U.S.  1, 21  

                                                                                                                                                                  

(1987)).  



                                                                               -14-	                                                                         7104
  


----------------------- Page 15-----------------------

                                                                                                                                                              45  

firmly rooted in a breach of the [collective bargaining agreement] itself."                                                                                        By contrast,   



when an employee's right against wrongful termination derives from state law and does                                                                                               



not depend on an analysis or interpretation of the collective bargaining agreement, the                                                                                                         

                                                                                            46    Such claims may turn on, for example, the  

state law cause of action is not preempted.                                                                                                                                             



state law duty not to fire an employee for retaliatory reasons or in violation of other state  

                                                                                                                                                                                     

public policy.47  

                                     



                             Lingley'sagediscrimination claimhasanindependent statelawbasis under  

                                                                                                                                                                                  



AS 18.80.220, which prohibits an employer from discriminating against an employee  

                                                                                                                                                                         

"because of the [employee's] age."48                                               This statute also prohibits discriminating against  

                                                                                                                         

an employee because of his or her sex,49   and we have held that the RLA does not  

                                                                                                                                                                                      



preempt a wrongful termination claim arising under this statute when the claim alleges  

                                                                                                                                                                               

                                                                                              50   The same is true with respect to Lingley's  

retaliation for reporting sexual harassment.                                                                                                                             

                                                                    



               45            Id.  at 257 (emphasis in original);                                    Bernard v. Alaska Airlines, Inc.                                    , 367 P.3d     



 1156, 1160-61 (Alaska 2016).                        



               46            Bernard, 367 P.3d at 1161-62 (citing Norcon, Inc. v. Kotowski, 971 P.2d  

                                                                                                                                                                          

 158, 164-66 (Alaska 1999)).  Compare Norris, 512 U.S. at 257-58 (holding that a claim  

                                                                                                                                                                                 

is not preempted by the RLA when the collective bargaining agreement is "not the 'only  

                                                                                                                                                                                   

                                                                                                                                                                                          

source' of [the employee's] right not to be discharged wrongfully"), with Andrews v.  

                                                                                                                                                          

                                                                                                                                                                                          

Louisville & Nashville R.R. Co., 406 U.S. 320, 324 (1972) (holding that a claim is  

                                                                                                                                                                                          

preempted by the RLA when the collective bargaining agreement is "the only source of  

                                                                        

 [the employee's] right not to be discharged").  



               47            Bernard, 367 P.3d at 1161-62; see also Norris, 512 U.S. at 266 (concluding  

                                                                                                                                                                    

that a whistleblower claim based in state law was not preempted by the RLA).  

                                                                                                                                                              



               48            AS 18.80.220(a)(1).  

                                      



               49            Id.  Sexual harassment of employees constitutes discrimination on the basis  

                                                                                                                                                                                    

of sex.  French v. Jadon, Inc., 911 P.2d 20, 28 (Alaska 1996).  

                                                                                                                                          



               50            Bernard, 367 P.3d at 1162.  

                                                                             



                                                                                           -15-                                                                                    7104
  


----------------------- Page 16-----------------------

age   discrimination   claim.     Like   a   claim   for   pretextual   firing   based   on   sexual  



discrimination, Lingley's age discrimination claim does not turn on an interpretation of                                                                                                                                                                                                  



the   collective   bargaining   agreement;   it   has   an   independent   state   law   basis   in  



AS 18.80.220 and therefore is not preempted.                                                                        



                                                                   b.	                   Theretaliation,                                        whistleblower, andretributionclaims                                                                                                  are  

                                                                                         not preempted if they are construed as tort claims for                                                                                                                                      

                                                                                         discharge in violation of public policy.                                                                        



                                             The superior court concluded, and Alaska Airlines concedes, that the RLA                                                                                                                                                            



does   not   preempt   Lingley's   retaliation   claim if                                                                                                             it   "is   construed   as   a   tort   claim for   



wrongful discharge in violation of public policy."                                                                                                                        But the superior court, like Alaska                                                            



Airlines, reached the opposite conclusion with respect to Lingley's whistleblower and                  



retribution claims:                                            Those claims, unlike the retaliation claim, arose from the collective                                                                                                                            



bargaining agreement and could not be considered independent of it.                                                                                                                                                                     



                                             The RLA, as noted, does not preempt a wrongful termination claim when                                                                                                                                                             



                                                                                                                                                                                                                                                                        51  

the claim is rooted in state law rather than a collective bargaining agreement.                                                                                                                                                                                                This  



                                                                                                                                                                                                                                                                                      

category of claims may include those alleging violations of state law protections for  



                                                     52  

                                                                                                                                                                                                                                                                                     

whistleblowers.                                                    Under  Alaska  law,  a  claim  alleging  wrongful  termination  for  



                                                                                                                                                                                                                                                                         

whistleblowing may be actionable as an independent state law tort even when the alleged  



                                                                                                                                                                                                                                   53  

                                                                                                                                                                                                                                          

misconduct "does not violate the letter of any . . . [statutory] law[]." 



                      51	                   Norris, 512 U.S. at 257.                                          



                      52                    Id.   at 266 (holding that claims that termination of employment violated                                                                                                                                                                               



                                                                                                                                                                                                                                                         

state law and public policy - claims which required only "purely factual inquiry into  

any retaliatory motive of the employer" - were not preempted by the RLA).                                                                                                                                                                    



                      53                    Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d 807, 812-13 & n.13  

                                                                                                                                                                                                                                                                                  

(Alaska 2005) (holding that a retaliation claim could be grounded in public policy tort);  

                                                                                                                                                                                                                                                                                

see also Kinzel v. Discovery Drilling, Inc., 93 P.3d 427, 438 (Alaska 2004) (allowing tort  

                                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                          (continued...)  



                                                                                                                                          -16-	                                                                                                                                  7104
  


----------------------- Page 17-----------------------

                                       Lingley claims that Alaska Airlines retaliated against her for criticizing                                                                                                               



management's failureto                                                 followcompanypolicies                                                   and for reporting                                 company misconduct  



and violations of federal law. These claims may be rooted in Alaska's public policy that                                                                                                                                                            



protects   employees   who   serve   as   whistleblowers   from   retaliation.     So   construed,  



Lingley's retaliation,whistleblower,                                                                      andretribution                              claims would                           turn on statelawrather                           

                                                                                                                             54        Further, though we have explained that  

than the collective bargaining agreement.                                                                                                                                                                                                          



wrongful  termination  claims  based  on  whistleblowing  may  "express[]  a  breach  of  

                                                                                                                                                                                                                                                       

contract theory"55  

                                                     and though Alaska Airlines' polices (incorporated into the collective                                                                                                        



bargaining agreement) explicitly protectemployeeswho                                                                                                               report misconductin                                         good faith,   



this nexus with the agreement does not mean Lingley's whistleblower and retribution                                                                                                                                            



claims turn on an interpretation of that agreement. Rather we recognize, for the purpose                                                                                                                                                



of          RLA                 preemption,                              that             a        collective                        bargaining                           agreement                            cannot                   "alter[],  



                                                                                                                                                                                                                                                         

circumscribe[], or define[]" state law protections even when the agreement appears to  



                                                                                                                                              56  

offer   protections   similar   to   those   of   state   law.                                                                                                                                                                   

                                                                                                                                                        Therefore to  the  extent  Lingley's  



                                                                                                                                                                                                                                     

retaliation, whistleblower,andretributionclaims allegewrongfultermination in violation  



(...continued)
  

remedy to protect employee whistleblowers who file safety complaints).
                                                                                                         



                    54                 Reust,   127  P.3d  at  812-13  &  n.13;  Kinzel,  93  P.3d  at  438.  



                    55                 Reed  v.  Municipality  of  Anchorage,  782  P.2d   1155,   1158  (Alaska   1989).  



                    56                 Bernard  v.  Alaska  Airlines,  Inc.,  367  P.3d  1156,  1162  (quoting  Norcon,  Inc.  

v.  Kotowski,  971  P.2d  158,  167  (Alaska  1999));  see  also  id.  at  1162  n.35  ("[T]he  fact  that  

a  claim  involves  a  violation  of  a  privately  enforced  policy  is  irrelevant  to  the  extent  that  

a  statute  independently  favors  the  same  policy.");  Norcon,  971  P.2d  at 1                                                                                                                                     67  ("The  fact  

that  the  'whistle  blower'  claim  in  this  case  involved  the  violation  of  a  privately  enforced  

safety  policy,  rather  than  violations  of  law,  is  irrelevant  insofar  as  public  policy  favors  

safe  workplaces.").  



                                                                                                                          -17-                                                                                                                  7104
  


----------------------- Page 18-----------------------

of state law or public policy, the claims are independent of the collective bargaining                                                                                                                                                                                          



agreement and not preempted by the RLA.                                                                                                                     



                                                                         c.	                    Whether the economic discrimination claim is preempted  

                                                                                                 depends on its construction.                            



                                                Thesuperiorcourtconcluded that Lingley's economicdiscriminationclaim                                                                                                                                                                                                        



was preempted because the claim arises only under the collective bargaining agreement                                                                                                                                                                                              



and thus was not an independent state law claim.                                                                                                                                  



                                                Lingley contends                                                    that Alaska Airlines fired                                                                        her   because it "wanted                                                                  to  



replace [her], a fifteen-year veteran employee, . . . with a younger and newer employee                                                                                                                                                                                              



who   would   have   little   or   no   seniority   and   thus   could   be   paid   at   a   lower   level   of  



compensation."     This   claim has                                                                                      two  possible   constructions:     First   Lingley   may   be  



alleging   that Alaska Airlines breached                                                                                                          the implied                                   covenant of good                                                     faith   and   fair  



dealing.   This claim is preempted as the superior court concluded.                                                                                                                                                                                 An employer may                                     



breach   the   implied   covenant   of   good   faith   and   fair   dealing   when   it   terminates   an  



                                                                                                                                                                                                                                                                                                                   57  

employee   to   deprive   her   of   compensation   due   under   an   employment   contract.                                                                                                                                                                                                                               



                                                        

Lingley's right to compensation, and the nature of that compensation, is firmly rooted  



                                                                                                                                                                                                                                                                                    

in her employment contract but not necessarily in state law.  But Lingley's economic  



                                                                                                                                                                                                                                                                                                             

discrimination claim also may be alleging age discrimination.  To the extent it does, the  

                                                                                                                                                                                                              58         Therefore, on remand, the  

                                                                                                                                                                                                                                                                                                             

claim is not preempted for the reasons explained above. 



superior court should allow Lingley to raise and clarify the economic discrimination  

                                                                                                                                                                                                                                                                   



claim as a claim for age discrimination.  

                                                                                        



                        57                      See Mitford v. de Lasala                                                                    , 666 P.2d 1000, 1007 (Alaska 1983) ("[G]ood                                                                                              



faith and fair dealing in this case would prohibit firing [the employee] for the purpose of                                                                                                                                                                                                                      

preventing him from [from obtaining compensation due under contract].").                                                                                                                                                           



                        58                      Seesupra IV.A.3.a. Alaska Statute 18.80.220(a) provides: "[I]t is unlawful                                                                                                                                                               

                                                                                                                       

for . . . an employer . . . to discriminate against a person in compensation . . . because of                                                                                                                                                                                                                    

the person's age . . . ."                                                          



                                                                                                                                                     -18-	                                                                                                                                             7104
  


----------------------- Page 19-----------------------

                              4.	           Alternate grounds do not justify denying leave to amend.                                                              



                                            a.	            The mere possibility of Federal Aviation Act and Airline                                                            

                                                           Deregulation Act preemption do not require us to affirm                                                              

                                                           on these alternate grounds.                 



                             Alaska   Airlines   contends   that   Lingley's   whistleblower   and   retaliation  

claims are preempted by the Federal Aviation Act of 1958 (FAA)                                                                                         59  

                                                                                                                                                                                                 

                                                                                                                                                             and the Airline  



                                                                          60  

                                                                                                                                                                                       

Deregulation Act of 1978 (ADA)                                                 because the claims allege violations of federal law  



                                                                                                                                                                                         

or  regulation  related to  air  carrier  safety.                                                  Lingley's complaint,  however,  is not so  



                                                                                                                                                                                        

specific.  She alleges only that Alaska Airlines terminated her because it suspected her  



                                                                                                                                                                                          

of "report[ing] the company's misconduct and its violations of government rules to  



                                                                                                                                                                           

federal officials" and "in retaliation for her perceived whistle-blowing . . . of reporting  



                                                                                                                                                                                    

the company's violations of federal laws and regulations." She does not explicitly claim  



                                                                                                                                                                                 

pretextual firing for reporting federal safety violations.  And, to the extent such claims  



                                                                                                                                                                

can be inferred, neither the FAA nor the ADA necessarily preempts the claims.  



                                                                                                                                                                            

                              TheFAA"empowered theCivilAeronauticsBoardtoregulatetheinterstate  



                                      61  

                                                                                                                                       

airline industry,"                         including regulation of interstate airfares and action against certain  



                                                        62  

                                                                                                                                                                                        

deceptive trade practices.                                    Pursuant to this authority, the Civil Aeronautics Board has  



                                                                                                     63  

                                                                                  

regulated air carrier routes, rates, and services.                                                                                                                         

                                                                                                          The FAA does not, however, expressly  



               59            Pub. L. No. 85-726, 72 Stat. 731 (codified as amended in scattered sections                                                                      



of 49 U.S.C.).     



               60            Pub.  L.  No.  95-504,  92  Stat.  1705  (codified  as  amended  in  scattered  

                                                                                                                                                                           

sections of 49 U.S.C.).  

                                 



               61            Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422, 1428 (2014).  

                                                                                                                                                



               62            Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992).  

                                                                                                                                                              



               63            Northwest, 134 S. Ct. at 1428.  

                                                                                    



                                                                                           -19-	                                                                                    7104
  


----------------------- Page 20-----------------------

preempt state regulation.64  Rather it contains a saving provision that "preserv[es] pre- 



                                                                          65  

existing statutory and common-law remedies."                                                                                       

                                                                              Therefore "FAA 'preemption, if any,  

                               66  Implied preemption is found when compliance with both federal  

                                                                                                                              

                              

must be implied.' " 



and state law would be impossible (conflict preemption) or when "Congress left no room  

                                                                                                                                  

for the [s]tates" (field preemption).67  

                                    



                     The  Ninth  Circuit  has  concluded  that  the  FAA  preempts  wrongful  

                                                                                                                          



termination  claims  based  on  whistleblowing  when  the  claims  interfere  with  the  

                                                                                                                                    

"pervasively regulated" area of pilot qualifications and medical standards for airmen68  

                                                                                                                       



and thus indirectly challenge "aviation safety decisions under the guise of state law  

                                                                                                                                    

whistleblower  claims."69                   Claims  that  avoid  such  heavily  regulated  areas  are  not  

                                                                                                                                    



preempted - this includes the employment field:  "Congress has not occupied the field  

                                                                                                                                   



of employment law in the aviation context[,] and . . . the FAA does not confer . . . the  

                                                                                                                                     

exclusive power to regulate all employment matters involving airmen."70   Here the mere  

                                                                                                                                  



           64        Morales,  504  U.S.  at  378.   



           65        Northwest,   134  S.  Ct.  at   1428.  



           66         Ventress   v.  Japan  Airlines ,   747   F.3d   716,   720   (9th   Cir.   2014)   (quoting  



Montalvo  v.  Spirit  Airlines ,  508  F.3d  464,  470  (9th  Cir.  2007)).  



           67        Id . at  720-21 (quoting   Valle del Sol Inc. v.   Whiting,  732  F.3d   1006,   1023  



(9th  Cir.  2013)).   



           68        Id . at 721.  

                               



           69        Id . at 722.  

                               



           70        Id. ; see also id. at 722-23 ("[W]e hold that federal law preempts state law  

                                                                                                                                    

claims that encroach upon, supplement, or alter the federally occupied field of aviation  

                                                                                                                             

safety and present an obstacle to the accomplishment of Congress's legislative goal to  

                                                                                                             

create a single, uniform system of regulating that field.").  

                                                                               



                                                                 -20-                                                            7104
  


----------------------- Page 21-----------------------

possibility that the FAA might preempt Lingley's broadly stated whistleblower and                                                                                                            



retaliation claims does not justify denying leave to amend.                                                                            



                              Alaska    Airlines    also    contends    that    the    ADA    preempts    Lingley's  



whistleblower andretaliation                                      claimsgiven                   theADA's                 "broad preemptive purpose." But,    



like the FAA, the ADA does not necessarily reach so far. The ADA seeks to promote                                                                                                  

                                                                                            71  through "maximum reliance on competitive  

"efficiency, innovation, and low prices"                                                                                                                                   

market forces and on actual and potential competition."72  In 2000, Congress amended  

                                                                                                                                                                                 

the ADA to add the Whistleblower Protection Program.73   This program prohibits an air  

                                                                                                                                                                                                



carrier  from  "discharg[ing]  an  employee  or  otherwise  discriminat[ing]  against  an  

                                                                                                                                                                                               



employee with respect to compensation, terms, conditions, or privileges of employment  

                                                                                                                                                                          



because  the  employee  .  .  .  provided  .  .  .  to  the  employer  or  Federal  Government  

                                                                                                                                                                        



information relating to any violation or alleged violation of any . . . [federal law or  

                                                                                                                                                                                                 

regulation] relating to air carrier safety."74                                                     The program provides a detailed procedure  

                                                                                                                                                                               



for addressing such grievances and authorizes the U.S. Department of Labor to grant  

                                                                                                                                                                                          



                                                                                                                                                                             75  

relief to the employee, including reinstatement and compensatory damages.                                                                                                         

                                                                                                                                                        



                               The ADA also contains a preemption provision that is designed to ensure  

                                                                                                                                                                                       



states do not "undo federal deregulation [of the airline industry] with regulation of their  

                                                                                                                                                                                                        



               71              49 U.S.C.  40101(a)(12)(A) (2012)                                                 .  



               72             Id.   40101(a)(6);                       see also Dan's City Used Cars, Inc. v. Pelkey                                                        , 133 S. Ct.       



 1769, 1775 (2013) (discussing the ADA's aim).                                                    



               73              Pub.  L.  No.  106-181,  114  Stat.  145  (2000)  (codified  as  amended  at  

                                                                                                                                                                                                 

49 U.S.C.  42121 (2012)).  

                                             



               74              49 U.S.C.  42121(a).  

                                                          



               75             Id.   42121(b).  

                                                                   



                                                                                              -21-                                                                                        7104
  


----------------------- Page 22-----------------------

           76  

own."           The preemption provision provides:                                  "States may not enact or enforce a law,                          



regulation, or other provision having the force and effect of law                                                 related to        a price, route,     

                                                      77    This provision  has "broad pre-emptive purpose"; it  

or   service of an air carrier."                                                                                                                          



preempts claims that have "a connection with, or reference to, airline 'rates, routes, or  

                                                                                                                                            

services.' "78   But its preemptive reach is limited: As the U.S. Supreme Court explained,  

                                                                                                                                           



" '[s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a  

                                                                                                                                                           

manner' to have pre-emptive effect."79  

                                                                        



                        Noting this limitation, the Third and Eleventh Circuits have held that the  

                                                                                                                                                        



ADA does not preempt "simple employment discrimination claim[s] . . . [based on] [an  

                                                                                                                                                        



employee's] undertaking of protected activity," including, for example, claims alleging  

                                                                                                                                               

retaliation for reporting safety violations.80  Such claims, these courts have explained, are  

                                                                                                                                                        



only incidentally " 'related to' air carrier 'services' "; "safety is not a basis on which  

                                                                                                                                                           



airlines compete for passengers"; and the Whistleblower Protection Program "simply  

                                                                                                                                               



add[s] an additional remedy for plaintiffs seeking to advance a retaliatory [termination]  

                                                                                                                                     



             81  

claim."           



            76          Northwest, Inc.v.Ginsberg                       ,134S.Ct.1422,1428(2014) (quoting                                    Morales  



v.  Trans World Airlines, Inc.                      , 504 U.S. 374, 378 (1992)).           



            77          49  U.S.C.    41713(b)(1)  (emphasis  added).  



            78          Northwest,   134  S.  Ct.  at   1428  (quoting  Morales,  504  U.S.  at  383-84).  



            79          Morales,  504  U.S.  at  390  (alterations  in  original)  (quoting  Shaw  v.  Delta  



Air  Lines,  Inc.,  463  U.S.  85,   100  n.21  (1983)).  



            80          Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1259-60 (11th Cir. 2003);  

                                                                                                                                                  

see Gary v. Air  Grp., Inc., 397 F.3d 183, 186-87, 189-90 (3d Cir. 2005).  

                                                                                                                        



            81          Branche, 342 F.3d at 1260, 1264; see also Gary, 397 F.3d at 188-90. We  

                                                                                                                                                       

recognize that the circuits are split in this regard.  The Eighth Circuit, for example, held  

                                                                                                                                                     

                                                                                                                                       (continued...)  



                                                                           -22-                                                                    7104
  


----------------------- Page 23-----------------------

                             Lingley's  broadly    stated    whistleblower    and    retaliation    claims    may  



                                                                                                                                                    82  

incidentally affect airline "efficiency, innovation, and low prices,"                                                                                                        

                                                                                                                                                         and  the ADA's  



                                                                                                                                                                                      

Whistleblower Protection Program may offer an avenue for redressing some of her  

                         83                                                                                                             84  and the broadly stated  

                               But given the limited scope of ADA preemption                                                                                                     

grievances.                                                                                                     



nature of Lingley's claims, we conclude that the mere possibility of preemption under  

                                                                                                                                                      



the ADA does not require us to affirm on this alternate ground.  

                                                                                                                          



                                            b.	           The age discrimination claim is not time barred if it is  

                                                                                                                                                                                         

                                                          based on state law.  

                                                                                             



                             Alaska Airlines contends that Lingley's age discrimination claim is time  

                                                                                                                                                                                    



barred to the extent the claim is based on federal law.   It notes that the federal Age  

                                                                                                                                                                                    



Discrimination   in   Employment   Act   of  1967   requires   individuals   alleging   age  

                                                                                                                                                                                   



discrimination  to  first  file  a  discrimination  claim  with  the  Equal  Employment  

                                                                                                                                                               



Opportunity Commission within 300 days of the alleged wrongful act and then wait  

                                                                                                                                                                                    

60  days  before  bringing  an  action  in  court.85  

                                                                                                                                                                                    

                                                                                                                While  this  is  true,  Lingley's  age  



(...continued)  

that the ADA preempted a flight attendant's claim alleging retaliation for reporting                                                                                     

violations of laws related to working conditions.                                                           Botz v. Omni Air Int'l                          , 286 F.3d 488,         

498 (8th Cir. 2002).                         The court cited the ADA's broad preemptive purpose, the claim's                                                                 

incidental   threat   to   airline   services,   and  the   Whistleblower   Protection   Program's  

comprehensiveprocedurefor addressinggrievances,which "furthered [Congress's]goal                                                                                                    

of ensuring . . . the price, availability, and efficiency of air transportation."                                                                               Id.  at 494-98.   



               82            See 49 U.S.C.  40101(a)(12)(A).  

                                                                 



               83            See id.  42121; Gary, 397 F.3d at 188-89; Branche, 342 F.3d at 1263-64.  

                                                                                                                                                                          



               84            See Morales, 504 U.S. at 390.  

                                                                                      



               85            See 29 U.S.C.  626(d)(1) (2012); 29 C.F.R.  1626.7(a) (2016).  

                                                                                                                                                           



                                                                                          -23-	                                                                                   7104
  


----------------------- Page 24-----------------------

                                                                                                                                            86  

discrimination claim has an independent basis in state law under AS 18.80.220.                                                                   To the   



extent Lingley's age discrimination claim is based on state law, the claim is not time                                                               

barred.87  



                                                                                                                                                  

            B.	         The  Superior  Court  Did  Not  Err  In  Dismissing  Lingley's  First  

                                                                     

                        Amended Complaint.  



                                                                                                                                                  

                        Lingley's first amended complaint allegedwrongfulterminationandbreach  



                                                                                                                                                     

of the duty of good faith and fair dealing but did not cite or suggest an independent state  



                                                                                                                                                   

law  basis  for  the  claims.                      Accordingly  the  superior  court  concluded  that  the  RLA  



                                                                                                                                                              

preempted the claims because they were rooted in the collective bargaining agreement.  



                     

We agree.  



                                                                                                                                                       

                        In  Bernard  v.  Alaska  Airlines,  Inc.  and  Norcon,  Inc.  v.  Kotowski,  we  



                                                                                                                                        

distinguished between claims that depend solely on the parties' contractual relationship  



                                                                                                                                                         

and claims that allege pretextual termination based on retaliation and depend in part on  



                                                  88  

                                                                                                                                                        

the contractual relationship.                         The former claims (those based solely on the contract) are  



            86	         See supra          IV.A.3.a.  



            87  

                                                                                                                                                       

                        Agediscrimination claims under AS 18.80.220 must be brought within two  

years of the offending conduct.                            AS 09.10.070(a).                 



            88          Bernard v. Alaska Airlines, Inc., 367 P.3d 1156, 1160-62 (Alaska 2016);  

                                                                                                                                  

Norcon, Inc. v. Kotowski, 971 P.2d 158, 165-68 (Alaska 1999) (holding that state law  

                                                                                                                                                      

claims  are  not  preempted  when  they  are  "neither  founded  on  rights  created  by  a  

                                                                                                                                                          

 [collective bargaining agreement] nor dependent on the analysis or interpretation of the  

                                                                                                                                                        

 [collective bargaining agreement]"). Norcon involved the Labor Management Relations  

                                                                                                                                            

Act (LMRA) rather than the RLA, but like the U.S. Supreme Court, we apply the same  

                                                                                                                                                    

preemption analysis to both.  See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260  

                                                                                                                                    

(1994) (stating that the RLA preemption standard "is virtually identical to the pre- 

                                                                                                                                                     

emption standard the Court employs in cases involving . . . the LMRA").  

                                                                                                                   



                                                                           -24-	                                                                   7104
  


----------------------- Page 25-----------------------

                                                                                                             89  

preempted   but   the   latter   claims   generally   are   not.                                                    As   we   explained,   a   collective  



bargaining agreement cannot "alter[], circumscribe[], or define[]" matters grounded in                                                                                           



the state's public policy, such as the right to report safety violations or the right to work                                                                              

                                                                                             90   Because the bargaining process does not  

in an environment free of sexual harassment.                                                                                                                                   

define such rights, their contours can be traced without any reference to the agreement.91  

                                                                                                                                                            



                            Lingley's first amended complaint alleges that Alaska Airlines refused to  

                                                                                                                                                                                 



reinstate her, did not adequately notify her about the discharge proceedings, and failed  

                                                                                                                                                                          



to provide a neutral forum in which to address her grievances.  Unlike the claims in the  

                                                                                                                                                                               



second amended complaint, these claims are not independent claims based on pretext or  

                                                                                                                                                                                  



retaliation.               Instead  they  are wrongful termination  claims defined by  the collective  

                                                                                                                                                                



bargaining agreement - the only source of Lingley's right to for-cause termination. As  

                                                                                                                                                                                

                                                                                                                                              92    However to the  

such the RLA preempts the claims in the first amended complaint.                                                                                                               

                                                                                                                        



              89            Bernard,  367  P.3d  at   1160-62;  Norcon,  971  P.2d  at   166-68.  



              90            Bernard,  367  P.3d  at   1162  (quoting  Norcon,  971  P.2d  at   167).  



              91            Id.  



              92            See  Norris,  512  U.S.  at  257-58  (quoting  Andrews  v.  Louisville  &  Nashville  



R.R.   Co.,  406  U.S.  320,  324  (1972));  Bernard  at   1160-61.   In  a  footnote,  the  superior  

court also concluded that the claims were precluded  because Lingley failed to exhaust  

the   remedies   available   under   the   collective   bargaining   agreement.    For   the   reasons  

explained  above,  we  disagree.   See  supra  IV.A.2.  



                                                                                      -25-                                                                                 7104
  


----------------------- Page 26-----------------------

                                                                                                                                 93  

extent the first amended complaint alleges a claim for defamation,                                                                   that claim, as we           



explain below, can be revived by a motion to amend subject to the superior court's usual                                                                     

exercise of discretion.                   94  



                                                                                                                                                       

             C.	          Though A Number Of Lingley's Claims Were Not Timely, Lingley  

                                                                                                                                                                 

                          Should Be Allowed To Raise Those Claims On Remand Subject To  

                                                                                                              

                          The Superior Court's Usual Exercise Of Discretion.  



                                                                                                                                                           

                          Alaska Airlines and Lingley dispute whether Lingley timely alleged claims  



for intentional infliction of emotional distress, defamation, spoliation of evidence, and  



                                                                                                                                                   

prima facie tort.  Under Alaska Civil Rule 8, "pleadings are to be liberally construed,  



                                                                                                95  

                                                                                                                                                               

with the goal being to achieve substantial justice."                                                 However a plaintiff still must "set  



                                                                                                                                                       

forth allegations of fact consistent with some enforceable cause of action on any possible  



               96  

                                                                                                                                                             

theory"            because a defendant must have "fair notice of the claim and the grounds upon  



                                                        97  

                                            

which [the complaint] rests." 



             93           Lingley's first amended complaint seeks damages for "loss of reputation                                                  



and for the emotional distress and humiliation that she has suffered on account of the                                                                           

defendants' misconduct."                           



             94           Because we hold  that the superior  court should  have granted  leave to  

                                                                                                                                                                  

amend, we do not address Lingley's argument that the superior court erred when it  

                                                                                                                                                                    

denied her motion for a stay pending discovery.  On remand Lingley likely will have  

                                                                                                                                                             

opportunity for discovery.  

                               



             95           Lum  v.  Koles,  314  P.3d  546,  557  (Alaska  2013)  (alteration  omitted)  

                                                                                                                                                     

(quoting Gamble v. Northstore P'ship, 907 P.2d 477, 482 (Alaska 1995)).  

                                                                                                                                 



             96          Alaska Commercial Fishermen's Mem'l in Juneau v. City & Borough of  

                                                                                                                                                                   

Juneau, 357 P.3d 1172, 1178 n.25 (Alaska 2015) (quoting State, Dep't of Health &Soc.  

                                                                                                                                                               

Servs., Div. of Family & Youth Servs. v. Native Vill. of Curyung, 151 P.3d 388, 396  

                                                                                                                                                               

(Alaska 2006)).  

                 



             97           Id. at 1178 (quoting Valdez Fisheries Dev. Ass'n, Inc. v. Alyeska Pipeline  

                                                                                                                                                       

Serv. Co., 45 P.3d 657, 673 (Alaska 2002)).  

                                                                       



                                                                               -26-	                                                                         7104
  


----------------------- Page 27-----------------------

                                        Lingley did not timely allege claims for intentional infliction of emotional                                                                                                               



distress, defamation, spoliation of evidence, or prima facie tort.                                                                                                                             As the superior court     



concluded, these claims cannot be inferred from either of Lingley's complaints.                                                                                                                                                            Rather  



 she first raised the claims in her opposition to Alaska Airlines' proposed final judgment,                                                                                                                                                                        



after the superior court had already dismissed Lingley's complaints.                                                                                                                                           Neither the first                    



amended nor proposed second amended complaint alleges, for example, that Lingley                                                                                                                                                         



 suffered   severe   emotional   distress   or   contends   that   Alaska   Airlines   engaged   in  



outrageous   conduct   -   elements   necessary   to   a   claim   for   intentional  infliction   of  

                                                          98         Lingley's  complaints  also  do  not  claim  that  Alaska  Airlines  

emotional   distress.                                                                                                                                                                                                                  



negligently  published  a  false,  defamatory  statement  about  her,  as  required  for  

                                                                                                                                                                                                                                                     



                                   99  

defamation.    And nothing in either complaint suggests that Alaska Airlines mishandled                                                                                                                                        



evidence in a manner that might give rise to a tort claim for spoliation of evidence;                                                                                                                                              



indeed, neither complaint even mentions access to evidence                                                                                                                        .  



                                                                                                                                                                                                                                              

                                        Thesuperior court properly disregarded theseclaims thatwerenever timely  



                                                                                                                                                                                                                                         

alleged. In the previous section, however, we suggested that Lingley should be allowed  



                                                                                                                                                                                                                                                                   

to amend her complaint to clarify whether she intended to include a claimfor defamation.  



                                                                                                                                                                                                                                                       

 Subject to the superior court's usual exercise of discretion in setting and enforcing  

                                                     100 Lingley should also be allowed to amend her complaint to state the  

                                                                                                                                                                                                                                                        

pretrial deadlines, 



claims raised in her opposition to the proposed final judgment.  

                                                                                                                                                            



                    98                  See Beard v. Baum                                      , 796 P.2d 1344, 1350 (Alaska 1990) (requiring a higher                                                                                     



pleading standard for claims of intentional infliction of emotional distress).                                                                                                                      



                    99                  See DeNardo v. Bax, 147 P.3d 672, 678 (Alaska 2006).  

                                                                                                                                                                                         



                    100                Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562, 568 (Alaska 2015) ("We  

                                                                                                                                                                                                                                                 

review the denial of a motion to amend a pleading for abuse of discretion.") (citing  

                                                                                                                                                                                                     

Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 174 (Alaska 2010)).  

                                                                                                                                                                                                         



                                                                                                                          -27-                                                                                                                    7104
  


----------------------- Page 28-----------------------

V.                          CONCLUSION  



                                                        We AFFIRM the superior court order dismissing Lingley's first amended                                                                                                                                                                                                      



complaint.   We REVERSE the order denying leave to amend and REMAND Lingley's                                                                                                                                                                                                                                                    



claims for agediscrimination, economicdiscrimination,                                                                                                                                                                                retaliation, whistleblowing,                                                                                         and  



retribution.    Consistent with this opinion, Lingley should be allowed to amend her                                                                                                                                                                                                                                                                      



complaint to raise additional claims subject to the superior court's usual exercise of                                                                                                                                                                                                                                                                         



discretion.  



                                                                                                                                                                                           -28-                                                                                                                                                      7104
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC