West v. Alaska Airlines, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KA WEST,
Plaintiff,
v.
ALASKA AIRLINES, INC.,
Defendant. 	Case No. 3:18-cv-00102-SLG
ORDER RE MOTION TO DISMISS
Before the Court at Docket 8 is Defendant Alaska Airlines, Inc.’s Motion to Dismiss.
Plaintiff Ka West opposed at Docket 14. 	Alaska Airlines replied at Docket 18. 	Oral
argument was held on August 23, 2018, at Anchorage, Alaska before Judge Sharon L.
Gleason.1
BACKGROUND
Alaska Airlines employed Ms. West as a customer service agent beginning in
January 2007.2 The terms and conditions of Ms. West’s employment were governed by
a 	Collective 	Bargaining 	Agreement 	(“CBA”) 	negotiated 	by 	Ms. 	West’s 	union, 	the
International Association of Machinists and Aerospace Workers, pursuant to the federal
Railway Labor Act (“RLA”).3 	The CBA contains disciplinary procedures for employees
and grievance procedures for review of disciplinary decisions and terminations.4 It also
1 Docket 26 (Minute Entry).
2 Docket 1 (Complaint) at 3, ¶ 9.
3 Docket 9 (Aff. of Misty Villastrigo) at 2, ¶ 4; see 45 U.S.C. § 151 et seq.
4 Docket 9-1 (CBA) at 8, 49, 50–57.
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includes provisions related to vacation and sick leave.5 	The CBA incorporates Alaska
Airlines’ system regulations and gives the company the right to change these provisions
at any time so long as they are not inconsistent with the CBA.6 The system regulations
include an “attendance reliability” program and additional policies and procedures related
to employee leave, including Family and Medical Leave Act (“FMLA”) leave.7 The CBA
also establishes a three-step grievance procedure for review of employee terminations.8
The first two steps are hearings between Alaska Airlines and the terminated employee,
conducted by a representative of Alaska Airlines.9 If the grievance is not resolved through
either of the first two steps, the employee’s union can elect to submit the grievance for
binding arbitration before the System Board of Adjustment, a body consisting of a union
member, an Alaska Airlines representative, and a neutral third member.10
Ms. West’s Complaint alleges as follows:
In 2012, Ms. West was diagnosed with endometriosis.11 	As a result of this
condition, she underwent surgery in January 2013.12 Ms. West took approximately one
month of FMLA leave following the surgery; when she returned, she went on light duty.13
5 Docket 9-1 at 40–45.
6 Docket 9-1 at 5–6.
7 Docket 9-2 (System Regulations) at 15–18, 3–14, 26–42.
8 Docket 9-1 at 50–57.
9 Docket 9-1 at 50.
10 Docket 9-1 at 53.
11 Docket 1 at 3, ¶ 13.
12 Docket 1 at 3, ¶ 14.
13 Docket 1 at 3, ¶¶ 14, 15.
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In July 2015, Ms. West began experiencing “intermittent, severe pain” in her left
ovary.14 On February 5, 2016, Ms. West asked her supervisor for an accommodation for
when she experienced these symptoms. Specifically, she asked leave to “take off a few
days or a month as needed, take regular breaks when her symptoms flared up, and avoid
lifting heavy objects.”15 	Ms. West alleges that Alaska Airlines “repeatedly refused” to
make reasonable accommodations.16 	She also alleges that Alaska Airlines “failed to
engage in the interactive process” and “continued to counsel her on taking time off”
despite the fact that she had significant unused leave.17
Ms. West applied for FMLA leave for her symptoms on March 2, 2016, but that
request was denied on or about March 17, 2016.18 	She re-applied that same day; she
applied again in September 2016.19 	On May 18, 2016, Ms. West’s endometriosis
symptoms caused her to leave work early.20 Alaska Airlines approved Ms. West’s FMLA
request for the May 18, 2016 leave in October 2016.21 However, Ms. West’s Complaint
alleges that Alaska Airlines “refused to change the leave taken on May 18, 2016, to FMLA
leave even though it was eventually approved as FMLA leave.”22
14 Docket 1 at 4, ¶ 16.
15 Docket 1 at 4, ¶ 18.
16 Docket 1 at 4, ¶ 20.
17 Docket 1 at 4, ¶ 20.
18 Docket 1 at 4, ¶¶ 23–24.
19 Docket 1 at 5, ¶ 25.
20 Docket 1 at 5, ¶ 26.
21 Docket 1 at 5, ¶ 30.
22 Docket 1 at 5, ¶ 31; Docket 9-3 (Notice of Discipline or Discharge).
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On January 31, 2017, Alaska Airlines terminated Ms. West’s employment.23 	A
Notice of Discipline or Discharge completed by the airline indicated that the termination
was based on “unsatisfactory attendance.”24 The document listed five absences during
the preceding year, one of which was the May 18, 2016 absence. Ms. West alleges that
she had taken leave on one day to attend a funeral and that her supervisor told her the
leave would be approved.25 She acknowledges that she “had a couple of minor instances
when she reported to work on-time but forgot her badge not allowing her to clock in on-
time,” but alleges that “she was terminated for taking leave when her symptoms flared up
and for applying for and requesting that she be given leave under FMLA.”26
Ms. West filed a grievance through her union challenging the termination.27 The
first two steps of the grievance process—the initial and secondary hearings before an
Alaska Airlines representative—took place in February and April 2017.28 Alaska Airlines’
representative denied the grievance at each hearing. Ms. West’s union informed her that
it declined to submit the grievance for binding arbitration before the System Board of
Adjustment.29
In approximately September 2017, Ms. West filed a charge of employment
discrimination with the Equal Employment Opportunity Commission (“EEOC”).30 Alaska
23 Docket 1 at 5, ¶ 31.
24 Docket 9-3.
25 Docket 1 at 6, ¶ 34.
26 Docket 1 at 6, ¶ 35.
27 Docket 9-4 (First Step Grievance Decision).
28 Docket 9-4; Docket 9-5 (Second Step Grievance Decision).
29 Docket 9-4; Docket 9-5; Docket 14-3 (Letter from Jeffrey Tobius to Ka West).
30 Docket 10-1 (Notice of Charge of Discrimination) at 2.
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Airlines received a “Notice of Charge of Discrimination” from the EEOC, which stated that
“[a] perfected charge (EEOC Form 5) will be mailed to you once it has been received from
the Charging Party.”31 	But Alaska Airlines never received a perfected charge.32 	On
January 25, 2018, the EEOC sent Ms. West and Alaska Airlines a “Dismissal and Notice
of Rights” indicating that it had investigated Ms. West’s charge but was unable to conclude
that Alaska Airlines had violated the Americans With Disabilities Act As Amended
(“ADAAA”).33 The EEOC then closed its file on the charge and issued a right to sue notice
to Ms. West under the ADAAA.34
On April 23, 2018, Ms. West initiated this action.35 	The Complaint alleges two
federal causes of action: (1) retaliation and interference in violation of the FMLA (Count
I); and (2) discrimination in violation of the ADAAA (Count II). Ms. West also alleges the
following causes of action under Alaska law: (1) discrimination based on disability in
violation of AS 18.80.220(a)(1) (Count III); (2) disparate treatment because of disability in
violation of AS 18.80.220 (Count IV); (3) breach of the duty to engage in the interactive
process and provide reasonable accommodation of a disability in violation of AS
18.80.220 (Count V); (4) breach of the implied covenant of good faith and fair dealing
(Count VI); and (5) the intentional infliction of emotional distress.36
31 Docket 10-1 at 2.
32 Docket 10 (Aff. of Laura Crisp) at 2–3, ¶¶ 5–6.
33 Docket 10-2 (Dismissal and Notice of Rights) at 1.
34 Docket 10-2 at 1.
35 Docket 1.
36 Docket 1 at 6–12, ¶¶ 36–78. 	The Complaint styles the last of these as the “Sixth Cause of
Action.” Docket 1 at 12. However, it is the seventh cause of action listed in the Complaint.
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On June 21, 2018, Alaska Airlines filed the instant Motion to Dismiss.37
LEGAL STANDARD
I. Jurisdiction and Applicable Law
The Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this is a civil
action with certain claims arising under federal law, 29 U.S.C. § 201, et seq. The Court
has supplemental jurisdiction over Plaintiff’s related state law claims.38
The Court applies federal procedural law; Alaska substantive law applies to the
state law claims.39 Whether federal law preempts a state law claim is a question of federal
law.40
II. Standard for Dismissal
A defendant may seek dismissal of an action for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1). When such a motion is made, the plaintiff
has the burden of proving jurisdiction.41 If the defendant raises a factual challenge to the
court's jurisdiction, as opposed to a facial challenge based solely on the allegations in the
complaint, a court may consider matters outside the pleadings in ruling on the motion.42
“‘[N]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of
37 Docket 14.
38 See 28 U.S.C. § 1367(a) (“[I]n any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are
so related to claims in the action within such original jurisdiction that they form part of the same
case or controversy under Article III of the United States Constitution.”).
39 See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
40 See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213–14 (1985).
41 Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010).
42 See Roberts v. Corrothers, 812 F.2d 1173, 1177–78 (9th Cir. 1987); Kingman Reef Atoll Invs.,
L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008).
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disputed material facts will not preclude the trial court from evaluating for itself the merits
of jurisdictional claims.’”43 	Here, Alaska Airlines submitted additional materials with its
motion to dismiss.44
Alaska Airlines also seeks dismissal under Rule 12(b)(6) for failure to state a claim.
“To survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”45
Iqbal does not require a litigant to prove her case in her pleading, but it requires the litigant
to “state ‘enough fact[s] to raise a reasonable expectation that discovery will reveal
evidence of [the misconduct alleged].’”46 	The pleading must contain “enough facts to
state a claim to relief that is plausible on its face.”47 “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.”48 When
reviewing a Rule 12(b)(6) motion, a court considers only the pleadings and documents
incorporated into the pleadings by reference, as well as matters on which a court may
43 Kingman Reef, 541 F.3d at 1195 (quoting Corrothers, 812 F.2d at 1177).
44 See Docket 9 (Aff. of Misty Villastrigo); Docket 9-1 (CBA); Docket 9-2 (System Regulations);
Docket 9-3 (Notice of Discipline or Discharge); Docket 9-4 (First Step Grievance Decision);
Docket 9-5 (Second Step Grievance Decision); Docket 10 (Aff. of Laura Crisp); Docket 10-1
(Notice of Charge of Discrimination); Docket 10-2 (Dismissal and Notice of Rights).
45 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
547 (2007)
46 Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011)
(alterations in original) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
47 Twombly, 550 U.S. at 570; see also Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013)
(“Dismissal under Rule 12(b)(6) is proper when the complaint either (1) lacks a cognizable legal
theory or (2) fails to allege sufficient facts to support a cognizable legal theory.”).
48 Bain v. California Teachers Ass’n, 891 F.3d 1206, 1211 (9th Cir. 2018) (quoting Iqbal, 556 U.S.
at 678).
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take judicial notice.49 A court “accept[s] factual allegations in the complaint as true and
construe[s] the pleadings in the light most favorable to the nonmoving party.”50 	This
inquiry requires a court to “draw on its judicial experience and common sense.”51 When
a motion to dismiss for failure to state a claim is granted, a court “should freely give leave
when justice so requires.”52 But leave to amend is properly denied as to those claims for
which amendment would be futile.53
DISCUSSION
Alaska Airlines advances four arguments in its motion to dismiss, which the Court
considers in the following order: First, Alaska Airlines contends that the Court lacks
subject matter jurisdiction over Ms. West’s ADAAA claims because she failed to timely
exhaust her administrative remedies through the EEOC. 	Second, it contends that the
RLA preempts or precludes jurisdiction over each of Ms. West’s claims. Third, it contends
that Ms. West did not submit her claims to binding arbitration as required by the CBA.
Fourth, it contends in the alternative that Ms. West has not alleged sufficient facts to
support her disparate treatment and intentional infliction of emotional distress claims.54
1. 	Failure to Exhaust Administrative Remedies
Alaska Airlines contends that Ms. West’s ADAAA claims should be dismissed
49 Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018).
50 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (citing Outdoor
Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007).
51 Iqbal, 556 U.S. at 679.
52 Fed. R. Civ. P. 15(a)(2).
53 Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (citing Albrecht v. Lund, 845
F.2d 193, 195 (9th Cir. 1988)).
54 Docket 8 at 4–5.
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because she did not file a perfected charge of discrimination with the EEOC prior to filing
suit.55 Ms. West responds that she filed a charge with the EEOC, then received a right
to sue letter from the EEOC and timely filed suit thereafter.56 	She does not assert that
she filed a verified charge with the EEOC.57
“Plaintiffs bringing employment discrimination charges under the ADA must
comply with the procedural requirements set forth in Title VII of the Civil Rights Act of
1964, as amended, at 42 U.S.C. § 2000e–5.”58 One procedural requirement is that before
filing suit, the claimant has filed a “charge” with the EEOC, which “shall be in writing under
oath or affirmation and shall contain such information and be in such form as the
Commission requires.”59 	EEOC regulations authorize plaintiffs to amend their charges
“to cure technical defects or omissions, including failure to verify the charge[s],” and
provide that such amendments “will relate back to the date the charge was first
received.”60
Several circuits have concluded that the verified charge requirement for EEOC
claims is mandatory and cannot be excused.61 But other circuit courts have concluded
55 Docket 8 at 40.
56 Docket 14 at 27–31.
57 The parties discuss whether Ms. West filed a “formal” or “perfected” charge. See Docket 8 at
40; Docket 14 at 30–31. A charge must be verified to be perfected. See U.S. E.E.O.C. v. Calumet
Photographic, Inc., 687 F. Supp. 1249, 1252 (N.D. Ill. 1988).
58 Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citing 42 U.S.C. § 12117(a)).
59 42 U.S.C. § 2000e-5.
60 29 C.F.R. § 1601.12(b).
61 See, e.g., Buck, 452 F.3d at 262; Balazs v. Liebenthal, 32 F.3d 151, 154 (4th Cir. 1994); Hodges
v. Northwest Airlines, 990 F.2d 1030, 1032 (8th Cir.1993).
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that the requirement “is not a jurisdictional prerequisite for suit.”62 	In those circuits, the
verified charge requirement may be “subject to waiver as well as tolling when equity so
requires.”63
Ms. West contends that “[w]hether [she] actually perfected the charge is harmless
error and should not be grounds for dismissal of this charge.”64 Ms. West cites Wrighten
v. Metro. Hosps., Inc. for the proposition that “[g]enerally, the exhaustion requirement is
satisfied when the plaintiff receives a right-to-sue notice from the EEOC.”65 In Wrighten,
the Ninth Circuit concluded that the subsequent issuance of a right-to-sue letter cured
any jurisdictional defects.66 	However, there is no indication that the Wrighten plaintiffs
failed to file verified charges with the EEOC.67 Citing EEOC v. Airguide Corp., Ms. West
also argues that because Alaska Airlines “received notice and EEOC issued a right to sue
letter to both parties,” the lack of a verified charge did not result in any prejudice.68 But
in Airguide, the Fifth Circuit noted that the EEOC made “every attempt to comply with the
conditions precedent to suit.”69 	In contrast, Ms. West provides no explanation for her
62 Buck, 452 F.3d at 262; see Gad v. Kansas State Univ., 787 F.3d 1032, 1038 (10th Cir. 2015);
Price v. Southwestern Bell Telephone Co., 687 F.2d 74 (5th Cir.1982); cf. Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982) (concluding that filing a timely charge of discrimination
with the EEOC is not a jurisdictional prerequisite to suit in federal court).
63 Buck, 452 F.3d at 262 (quoting Zipes, 455 U.S. at 398).
64 Docket 14 at 30.
65 Docket 14 at 31.
66 Wrighten v. Metro. Hosps., Inc., 726 F.2d 1346, 1351 (9th Cir. 1984).
67 Cf. Soto v. Castlerock Farming & Transp., Inc., No. CIV-F-09-0701 AWI, 2013 WL 1222055, at
*2 (E.D. Cal. Mar. 25, 2013) (declining to apply Wrighten approach where plaintiff had not filed
timely notice with a California agency).
68 Docket 14 at 31; see 539 F.2d 1038, 1042 (5th Cir. 1976).
69 Airguide, 539 F.2d at 1042. The EEOC was the plaintiff in the suit.
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failure to file a verified charge. Lastly, Ms. West contends that the purpose of a verified
charge “is not to provide notice to the employer.”70 She cites no cases in support of this
assertion, and other courts have 	concluded 	that verification does 	serve 	a notice
purpose.71
In Buck v. Hampton Township School District, an employer who participated in
EEOC proceedings despite not receiving a verified charge subsequently raised the
employee’s failure to verify as a bar to judicial proceedings.72 The court concluded that
where “an employer has actual notice of a discrimination charge and chooses to respond
to the merits of the claim before the EEOC without asserting lack of verification as a
defense it waives its right to secure dismissal of the federal court proceedings on that
basis.”73 Here, however, Alaska Airlines did not respond to the merits of Ms. West’s claim
before the EEOC at any time prior to the initiation of the suit.74
Ms. West failed to exhaust her administrative remedies and has articulated no
reason for failing to exhaust her administrative remedies that would justify waiving the
verified claim to the EEOC requirement. Therefore, her ADAAA claims will be dismissed
with prejudice.75
70 Docket 14 at 30.
71 See Gad v. Kansas State Univ., 787 F.3d 1032, 1042 (10th Cir. 2015) (“Moreover, verification
provides notice and an opportunity for the employer to investigate, promoting the prompt
administration of discrimination complaints and possible settlement.”).
72 452 F.3d at 264.
73 452 F.3d at 265.
74 Alaska Airlines did not receive any communication from the EEOC apart from the Notice of
Charge of Discrimination. Docket 10 at 3, ¶ 6.
75 Accordingly, the Court does not address whether Ms. West’s ADAAA claims are time-barred or
precluded under the RLA.
Amendment of these claims would be futile because Ms. West’s EEOC proceedings are
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2. 	Preemption and Preclusion Under the Railway Labor Act
Alaska Airlines contends that Ms. West’s federal law claims are precluded by the
RLA, 45 U.S.C. §§ 151–65, 181–88. 	It further contends that her state law claims are
preempted by the RLA.76 	While “[t]he preemption doctrine per se does not govern
questions relating to the compatibility of two or more federal laws,” courts have applied
the same analysis in determining whether a federal claim is precluded and whether a
state claim is preempted by the RLA.77
“Whether federal law pre-empts a state law establishing a cause of action is a
question of congressional intent.”78 	Congress passed the RLA “to promote stability in
labor-management relations by providing a comprehensive framework for resolving labor
completed. As such, the unverified charge cannot be retroactively amended. See Butler v. Greif,
Inc., 325 F. App’x 748, 749 (11th Cir. 2009); Balazs v. Liebenthal, 32 F.3d 151, 157 (4th Cir. 1994).
76 See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 259 n.6 (1994) (differentiating “RLA
preclusion of a cause of action arising out of a federal statute” from “RLA pre-emption of a cause
of action arising out of state law” (emphasis in original)).
77 Saridakis v. United Airlines, 166 F.3d 1272, 1276 (9th Cir. 1999); see also, e.g., Brown v. Illinois
Cent. R.R. Co., 254 F.3d 654, 662–63 (7th Cir. 2001) (“[W]e find that the preemption standard
should govern in a preclusion case unless the analysis of the two federal statutes clearly suggests
otherwise.”). Similarly, courts considering RLA preemption arguments rely on analysis from RLA
preclusion cases. See, e.g., Hawaiian Airlines, 512 U.S. at 259 n. 6 (“Buell, of course, involved
possible RLA preclusion of a cause of action arising out of a federal statute, while this case
involves RLA pre-emption of a cause of action arising out of state law and existing entirely
independent of the CBA. That distinction does not rob Buell of its force in this context.”); Leaea v.
United Airlines, Inc., No. 18-CV-00749-SI, 2018 WL 3777566, at *8 (N.D. Cal. Aug. 9, 2018).
When determining whether the RLA preempts or precludes a claim, courts also look to cases
analyzing the Labor Management Relations Act (“LMRA”). See Alaska Airlines, Inc. v. Schurke,
898 F.3d 904, 913 n.1 (9th Cir. 2018) (en banc) (“Because the RLA and LMRA § 301 preemption
standards are ‘virtually identical’ in purpose and function, they are, for the most part, analyzed
under a single test and a single, cohesive body of case law.” (citing Hawaiian Airlines, 512 U.S.
at 260, 262–63 & n.9)).
78 Hawaiian Airlines, 512 U.S. at 252 (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208
(1985)).
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disputes.79 	To that end, “the RLA establishes a mandatory arbitral mechanism for ‘the
prompt and orderly settlement’ of two classes of disputes” — “major” and “minor”
disputes.80 	Major disputes involve “the formation of collective [bargaining] agreements
or efforts to secure them.”81 	Minor disputes involve “the interpretation or application of
agreements covering rates of pay, rules, or working conditions.”82 The RLA requires that
minor disputes be “addressed through the CBA’s established grievance mechanism, and
then, if necessary, arbitrated before the appropriate adjustment board.”83 	Accordingly,
“[t]o the extent state law would . . . create a cause of action for a minor dispute, and
thereby ‘permit[] an individual to sidestep available grievance procedures,’” state law is
preempted.84
After the parties submitted their briefing, the Ninth Circuit decided Alaska Airlines,
Inc. v. Schurke en banc.85 	In Schurke, the Ninth Circuit explained the two-part inquiry
used to determine whether a claim is preempted or precluded by the RLA.86 	First, the
79 Id. at 252 (citing Atchison, T. & S.F.R. Co. v. Buell, 480 U.S. 557, 562 (1987); 45 U.S.C. § 151a).
The RLA was extended to cover the airline industry in 1936. See 45 U.S.C. § 181.
80 Hawaiian Airlines, 512 U.S. at 252 (quoting 45 U.S.C. § 151a); see Schurke, 898 F.3d at 916
n.5 (“The RLA does not itself use the terms ‘major’ or ‘minor.’ However, the terms were widely
used to describe these two categories of dispute before the statute was enacted, and remain in
common use.” (citing Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945))).
81 Hawaiian Airlines, 512 U.S. at 252 (quoting Consol. Rail Corp. v. Ry. Labor Executives’ Ass’n,
491 U.S. 299, 302 (1989)).
82 Schurke, 898 F.3d at 917 (quoting 45 U.S.C. § 151a); Conrail, 499 U.S. at 302.
83 Id. (citing 45 U.S.C. § 152; id. §§ 153, 184); see also Conrail, 499 U.S. at 302 (“[M]ajor disputes
seek to create contractual rights, minor disputes to enforce them.”). Every airline industry CBA
establishes a “system board of adjustment”; minor disputes arising in the airline industry are
arbitrated before these bodies. See id. at 917 n.6.
84 Schurke, 898 F.3d at 919 (second alteration in original) (quoting Lingle v. Norge Div. of Magic
Chef, Inc., 486 U.S. 399, 411 (1988)).
85 898 F.3d 904 (9th Cir. 2018) (en banc).
86 Id. at 920 (discussing preemption of state law claim). The Court indicated that the test also
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Court must “evaluate the ‘legal character’ of the claim by asking whether it seeks purely
to vindicate a right or duty created by the CBA itself.”87
If a claim arises entirely from a right or duty of the CBA — for example, a
claim for violation of the labor agreement, whether sounding in contract or
in tort — it is, in effect, a CBA dispute in state law garb, and is preempted.
In such cases, the CBA is the “only source” of the right the plaintiff seeks to
vindicate. . . . By contrast, claims are not simply CBA disputes by another
name, and so are not preempted under this first step, if they just refer to a
CBA-defined right; rely in part on a CBA’s terms of employment; run parallel
to a CBA violation; or invite use of the CBA as a defense.88
Second, if the claim is not preempted by the first step, a court must ask “whether
litigating the state law claim nonetheless requires interpretation of a CBA, such that
resolving the entire claim in court threatens the proper role of grievance and arbitration.”89
“Interpretation” is construed narrowly; “it means something more than
‘consider,’ ‘refer to,’ or ‘apply.’” Accordingly, at this second step of an RLA
or LMRA § 301 preemption analysis, claims are only preempted to the
extent there is an active dispute over “the meaning of contract terms.” “[A]
hypothetical connection between the claim and the terms of the CBA is not
enough to preempt the claim . . . .” Nor is it enough that resolving the state
law claim requires a court to refer to the CBA and apply its plain or
undisputed language — for example, “to discern that none of its terms is
reasonably in dispute”; to identify “bargained-for wage rates in computing
[a] penalty”; or “to determine whether [the CBA] contains a clear and
unmistakable waiver of state law rights.”90
In sum, “for each of [Ms. West’s] claims, [the Court] must determine whether the
claim arises from the CBA[] and, if not, whether establishing the elements of the claim will
applies to preclusion cases. See id. at 920 n.10.
87 Id. at 921 (citing Livadas v. Bradshaw, 512 U.S. 107, 123 (1994)).
88 Id. (footnotes and citations omitted) (alterations in original).
89 Id. (citing Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994); Livadas, 512 U.S. at 124–
25).
90 Id. at 921–22 (footnotes and citations omitted) (alterations in original).
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require interpretation of the CBA[].”91
A. FMLA Claims (Count I)
Ms. West contends that Alaska Airlines violated the Family Medical Leave Act
(“FMLA”).92 	“Courts have recognized two theories for recovery on FMLA claims under
§ 2615, the retaliation . . . theory and the . . . interference theory.”93 	The parties agree
that Ms. West’s Complaint implicates both types of FMLA claims.94 To establish a prima
facie case of retaliation, Ms. West must show that (1) she availed herself of a protected
right under the FMLA; (2) she was adversely affected by an employment decision; and
(3) there is a causal connection between the two actions.95 	To establish a prima facie
case of interference, Ms. West must show that (1) she was eligible for the FMLA's
protections, (2) her employer was covered by the FMLA, (3) she was entitled to leave
under the FMLA, (4) she provided sufficient notice of her intent to take leave, and (5) her
employer denied her FMLA benefits to which she was entitled.96
Alaska Airlines does not contend that Ms. West’s claims “arise entirely from a right
or duty of the CBA” — step one of the test described in Schurke.97 It argues, however,
that preclusion is warranted because Ms. West cannot establish each element of her
91 Dent v. Nat'l Football League, 902 F.3d 1109, 1117 (9th Cir. 2018).
92 Docket 1 at 6–7, ¶¶ 36–42; see 29 U.S.C. § 2615 (prohibiting “interference with rights”).
93 Sanders v. City of Newport, 657 F.3d 772, 777 (9th Cir. 2011) (quoting Smith v. Diffee Ford–
Lincoln–Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002)).
94 Docket 8 at 18; Docket 14 at 40.
95 Washington v. Fort James Operating Co., 110 F. Supp. 2d 1325, 1330 (D. Or. 2000) (citing
Morgan v. Hilti, 108 F.3d 1319, 1325 (10th Cir.1997)).
96 Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1243 (9th Cir. 2014) (citing Sanders v.
City of Newport, 657 F.3d 772, 778 (9th Cir. 2011)).
97 Alaska Airlines, Inc. v. Schurke, 898 F.3d 904, 921 (9th Cir. 2018) (en banc).
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prima facie cases without “interpretation of the CBA.”98
The few courts that have addressed whether the RLA precludes an FMLA
retaliation claim concluded that it does not. 	In Staunch v. Continental Airlines, Inc., the
Northern District of Ohio concluded that an FMLA retaliation claim is “not a contractual
right embedded in the [CBA]” and can be resolved “through a federal statute and without
any reference to the [CBA].”99 	Similarly, in South v. GoJet Airlines, LLC, the Southern
District of Iowa held that a plaintiff’s FMLA retaliation claim “merely require[d] a reference
to the CBA, not an interpretation of the CBA.”100
Two United States Supreme Court decisions address claims similar to Ms. West’s
FMLA retaliation claim. In Lingle v. Norge Division of Magic Chef, a terminated employee
alleged that her termination constituted retaliatory discharge under Illinois law.101 	Her
employer replied that the claim was preempted pursuant to the LMRA. 	The Supreme
Court rejected this argument. 	It first noted that to establish a prima facie case of
retaliatory discharge under Illinois law, the plaintiff would have to show that (1) she was
discharged or threatened with discharge and (2) the employer's motive in discharging or
threatening to discharge her was to deter her from exercising her statutory rights or to
98 Id.; see Docket 8 at 18–24. Alaska Airlines also argues that this Court should apply the burden-
shifting test articulated in McDonnell Douglas Corp. v. Green when analyzing Ms. West’s FMLA
retaliation claim, and that “preemption applies when the burden shifting framework for retaliation
claims implicates terms of the CBA.” See 411 U.S. 792, 802; Docket 8 at 23. However, the Ninth
Circuit has held that the McDonnell burden-shifting framework does not apply to FMLA retaliation
claims. See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001).
99 No. 106-CV-1011, 2007 WL 218729, at *5 (N.D. Ohio Jan. 26, 2007), aff'd, 511 F.3d 625 (6th
Cir. 2008).
100 No. 4:12-CV-00378-JEG, 2013 WL 6253582, at *5 (S.D. Iowa Sept. 30, 2013).
101 486 U.S. 399 (1988).
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interfere with her exercise of those rights.102 The Court held that both elements implicated
“purely factual questions pertain[ing] to the conduct of the employee and the conduct and
motivation of the employer,” neither of which would “require[] a court to interpret any term
of a collective-bargaining agreement.”103 	Furthermore, any inquiry into a proffered
nonretaliatory reason for the discharge would be “purely factual” and would “not turn on
the meaning of any provision of a [CBA].”104 Accordingly, the Supreme Court concluded
that the LMRA did not preempt the state law claim.105 Similarly, in Hawaiian Airlines, Inc.
v. Norris, the Supreme Court rejected an employer’s argument that a suit alleging
retaliatory discharge because of whistleblower activities was preempted by the RLA.106
The employer argued that the plaintiff’s claim would require a determination whether the
termination was justified by the plaintiff’s failure to sign a maintenance record as required
by the CBA. Citing Lingle, the Supreme Court concluded that any such determination
would “require only a purely factual inquiry into any retaliatory motive of the employer.”107
Here, Alaska Airlines contends that because it argues Ms. West was terminated
for attendance issues, “[t]he Court cannot properly evaluate Alaska Airlines’ legitimate
non-retaliatory 	reasons 	for 	the 	termination 	. . . 	without 	interpreting 	attendance
requirements, employee leave rights and obligations, and progressive discipline, as well
102 Lingle, 486 U.S. at 407 (citing Horton v. Miller Chemical Co., 776 F.2d 1351, 1356 (7th Cir.
1985)). 	The elements of this state law tort are similar to the elements of an FMLA retaliatory
discharge claim. See supra note 95 and accompanying text.
103 Id.
104 Id.
105 Id. at 413.
106 512 U.S. 246, 266 (1994).
107 Id.
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as past practices and interpretation of the relevant policies.”108 	Like the defendant in
Hawaiian Airlines, Alaska Airlines proffers a non-retaliatory motive for Ms. West’s
termination, and maintains that the evaluation of that motive will implicate the CBA.109
However, there is no indication, at least at this stage of the proceeding, that an inquiry
into Alaska Airlines’ motive would “turn on the meaning of any provision” of the CBA.110
Ms. West does not allege that Alaska Airlines misapplied the CBA, but that its decision to
terminate her was retaliatory. 	It appears that whether Alaska Airlines’ proffered reason
for terminating Ms. West differed from its actual reason for doing so is a “purely factual
question” that would “not require a court to interpret any term of the [CBA],” and is
therefore not precluded by the RLA.111
Whether Ms. West’s interference claim is precluded presents a closer question.112
Alaska Airlines contends that “[t]o establish her FMLA interference claim, Ms. West will
have to prove—by reference to and interpretation of the CBA—that her early departure
complied 	with 	Alaska 	Airlines’ 	notification 	and 	procedural 	requirements 	for 	such
absences. Because Ms. West would have to show that she was entitled to leave under
the FMLA and provided sufficient notice pursuant to the CBA of her intent to take leave,
108 Docket 8 at 24.
109 See 512 U.S. at 266.
110 Lingle, 486 U.S. at 407.
111 Hawaiian Airlines, 512 U.S. at 261.
112 The Court has found few cases addressing whether the RLA precludes FMLA interference
claims. See VanSlyck v. GoJet Airlines, LLC, 323 F.R.D. 266, 270 (N.D. Ill. 2018) (interference
claim precluded); Staunch v. Cont'l Airlines, Inc., No. 106-CV-1011, 2007 WL 218729, at *1, *5
(N.D. Ohio Jan. 26, 2007), aff'd, 511 F.3d 625 (6th Cir. 2008) (interference claim not precluded).
In VanSlyck the question was addressed at the summary judgment stage; in Staunch, it was
addressed at the motion to dismiss stage. See VanSlyck, 323 F.R.D. at 277; Staunch, 2007 WL
218729 at *4–5.
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it seems likely that the Court would need to consult provisions of the CBA in order to
evaluate Ms. West’s claim. 	Critically, however, Alaska Airlines has not identified an
“active dispute over ‘the meaning of contract terms.’”113 	To conclude that a claim is
precluded under the RLA, a court must do more than identify provisions of a CBA that
may be relevant to litigation of the claim. 	Here, at the motion to dismiss stage, it is not
apparent 	that 	analysis 	of 	Ms. 	West’s 	interference 	claim 	will 	necessarily 	require
interpretation of any CBA terms.114 	The Court does not “discount the possibility that in
the course of resolving [this] claim, an interpretive dispute might arise.”115 	At present,
however, “any interpretation of the CBA's provisions . . . is only potential and limited.”116
Accordingly, Alaska Airlines’ motion to dismiss Ms. West’s FMLA interference claim as
precluded by the RLA will be denied.117
B 	State Law Claims
i. 	Disability Discrimination — Termination (Count III)
Ms. West contends that her employment was terminated because of her disability
in violation of AS 18.80.220(a)(1).118 	To establish a prima facie case of disability
113 Alaska Airlines, Inc. v. Schurke, 898 F.3d 904, 921 (9th Cir. 2018) (en banc) (quoting Livadas
v. Bradshaw, 512 U.S. 107, 124 (1994)).
114 See Schurke, 898 F.3d at 921 (“[A] hypothetical connection between the claim and the terms
of the CBA is not enough to preempt the claim” (quoting Cramer v. Consol. Freightways, Inc., 255
F.3d 683, 691 (9th Cir. 2001), as amended (Aug. 27, 2001))).
115 Humble v. Boeing Co., 305 F.3d 1004, 1011 (9th Cir. 2002).
116 Id.
117 In its reply, Alaska Airlines argues that Ms. West’s medical condition “did not qualify for
coverage under FMLA until after her attendance discipline in May.” 	Docket 18 at 8 n.1. 	This
contention implicates analysis of regulations defining the term “serious health condition” and
factual questions regarding how often Ms. West required treatment, rather than interpretation of
the CBA. See 29 C.F.R. §§ 825.113(a), .115(c)(1).
118 Docket 1 at 10, ¶¶ 58–64. In relevant part, AS 18.80.220 provides:
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discrimination under the statute, a plaintiff must show that (1) she is a disabled person;
(2) she is a qualified individual, meaning she can perform the essential functions of her
job with or without a reasonable accommodation; and (3) she has suffered an adverse
employment decision because of her disability.119 Alaska Airlines argues that the claim
is preempted because under the second step of the Schurke analysis, the Court would
need to interpret the CBA to determine whether Ms. West is a “qualified individual” and
whether she was terminated “because of” her disability.120
The Ninth Circuit addressed a similar argument in Saridakis v. United Airlines.121
In Saridakis, United Airlines terminated the plaintiff’s employment for failing a drug test.122
Saridakis filed suit alleging that the airline had committed disability discrimination in
violation of the ADA. 	The airline contended that the ADA claim was preempted by the
RLA because “its defense to Saridakis’s charge of disability discrimination is based on a
contractual right to terminate him,” and because the claim “involve[s] the question whether
Saridakis was fired pursuant to the CBA’s provisions.”123 In rejecting these arguments,
the Circuit Court first held that whether the plaintiff’s termination was justified under the
CBA said “nothing about the threshold question whether the dispute was subject to the
[I]t is unlawful for . . . an employer to refuse employment to a person, or to bar a
person from employment, or to discriminate against a person in compensation or
in a term, condition, or privilege of employment because of the person’s . . .
physical or mental disability . . . when the reasonable demands of the position do
not require distinction on the basis of . . . physical or mental disability.
119 See Smith v. Anchorage Sch. Dist., 240 P.3d 834, 843 (Alaska 2010) (quoting Moody-Herrera
v. State, Dep't of Nat. Res., 967 P.2d 79, 88 (Alaska 1998)).
120 Docket 8 at 27–29; see Schurke, 898 F.3d at 921.
121 Saridakis v. United Airlines, 166 F.3d 1272, 1274 (9th Cir. 1999).
122 Id. at 1275.
123 Id. at 1277.
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RLA in the first place.”124 It further held that even if Saridakis’s ADA claim would “require
the court to review the facts underlying Saridakis’s termination,” such review would “not
appear to be the sort of interpretation” that was precluded by the RLA.125 	The Circuit
Court explained:
[T]he ADA . . . claim[] will require a court to examine whether United
terminated Saridakis because of his disability. Although United may be able
to introduce and rely upon the CBA and the last chance agreement as a
part of its defense, under the Supreme Court's recent ruling [in Hawaiian
Airlines] that would not be enough to render the dispute minor and therefore
subject to the RLA's dispute resolution mechanism.126
Similarly, in Carmona v. Southwest Airlines Co., Southwest terminated Carmona’s
employment 	for 	excessive 	absenteeism.127 	Carmona 	filed 	suit 	alleging 	disability
discrimination under the ADA. 	Southwest argued that Carmona’s claims would require
the court to interpret “the CBA's attendance policy, procedures for obtaining medical and
sick leave, and discipline and termination procedures.”128 	However, the Fifth Circuit
concluded that “provisions of the CBA are relevant to, but not dispositive of, the resolution
of Carmona’s claims,” and thus the claims were not precluded by the RLA.129
Even though a court would have to refer to the CBA to consider fully each
of the alleged acts of disparate treatment, there is no disagreement about
how to interpret these provisions of the CBA that detail Southwest's
procedures for assessing attendance, leave, discipline, and termination.
Carmona's factual allegations that unexcused absences by female flight
attendants went unpunished, that remarks of his supervisors regarding
male employees were discriminatory, and that his chronic illnesses were
124 Id. (quoting Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 266 (1994)).
125 Id. (quoting Hawaiian Airlines, 512 U.S. at 261–62).
126 Saridakis, 166 F.3d at 1277.
127 536 F.3d 344, 346 (5th Cir. 2008).
128 Id. at 348.
129 Id. at 349 (emphasis in original).
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the real reason he was fired, do not bring the meaning of any CBA
provisions into dispute. He alleges that CBA procedures were applied in a
discriminatory 	manner, 	not 	that 	CBA 	procedures 	were 	fundamentally
discriminatory.130
The District Court for the Northern District of California recently cited Carmona
approvingly in Leaea v. United Airlines, Inc.131 Leaea alleged that United terminated his
employment because of his disability in violation of California law. The airline argued that
the claims were preempted by the RLA because they would require interpretation of the
Attendance Policy of 	the CBA. The Leaea 	court concluded 	the 	claims were 	not
preempted, because although the airline had “cited portions of the CBA that may be
relevant to plaintiff’s claims,” it had not “identified an ‘active dispute over the meaning of
contract terms.’”132 The district court added, “[t]o the extent the parties dispute whether
United properly assessed points for the plaintiff’s absences under the Absence Policy,
the Court will be required to refer to that policy and make a factual determination; that
evaluation does not require interpretation over disputed terms of the CBA.”133
Like the claims examined in these cases, Alaska Airlines has not shown that Ms.
West’s disability discrimination claim under AS 18.80.220(a)(1) requires interpretation of
the CBA. 	The airline argues that to determine whether Ms. West was terminated
“because of” her disability, the Court will necessarily have to “evaluat[e] Alaska Airlines’
interpretation of attendance and leave policies.”134 However, as in Leaea, the airline has
130 Id. (emphasis in original).
131 Leaea v. United Airlines, Inc., No. 18-CV-00749-SI, 2018 WL 3777566 (N.D. Cal. Aug. 9, 2018).
132 Id. at *8 (quoting Alaska Airlines, Inc. v. Schurke, 898 F.3d 904, 921 (9th Cir. 2018) (en banc)).
133 Id.
134 Docket 8 at 29.
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not identified any “active dispute over the meaning of contract terms” that relate to this
inquiry.135 	Moreover, as in Saridakis, it is not apparent that an examination of Alaska
Airlines’ “conduct and motives” in terminating Ms. West will require interpretation of the
CBA.136 As part of her state law claim, Ms. West contends that if certain of her leave had
been counted as FMLA leave, “it would have dropped off her attendance record and she
would not have been terminated.”137 If this is disputed, the Court will likely need to refer
to the CBA and/or to Alaska Airlines’ attendance and leave policies. But this evaluation
would likely require the application of these terms, rather than the interpretation of
disputed terms.138
Alaska Airlines has also not shown that the Court would have to interpret the CBA
to determine whether Ms. West is a “qualified individual.” The airline notes that Article 4
of the CBA “lays out the classification job description for customer service agents” such
as Ms. West.139 	Again, however, Alaska Airlines has not identified a dispute as to the
meaning of any CBA terms related to an element of Ms. West’s state disability claim.
Article 4 outlines job duties associated with the customer service agent position in
135 Leaea v. United Airlines, Inc., No. 18-CV-00749-SI, 2018 WL 3777566 (N.D. Cal. Aug. 9, 2018)
at *8 (quoting Schurke, 898 F.3d at 921).
136 Saridakis v. United Airlines, 166 F.3d 1272, 1277 (9th Cir. 1999).
137 Docket 1 at ¶ 63.
138 Ms. West also states that her supervisors “counseled her on taking too much sick leave despite
her having plenty of unused sick and annual leave.” Docket 1 at ¶ 61. Alaska Airlines argues that
the Court would need to analyze the CBA and various policies to determine whether Alaska
Airlines could terminate Ms. West even if she had available vacation and sick leave. Docket 18
at 9–10. At oral argument, however, Ms. West claimed that Alaska Airlines’ decision to counsel
her on “taking too much sick leave” is probative of animus; she did not claim that this counselling
violated the CBA or related policies. Docket 28 (Transcript) at 17.
139 Docket 8 at 28; see Docket 9-1 at 13–14.
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straightforward terms; the Court would likely refer to this portion of the CBA when
analyzing Ms. West’s claims, but it does not appear that the interpretation of any disputed
terms would be necessary.
Alaska Airlines further contends that to determine whether Ms. West is a “qualified
individual,” the Court will have to “analyze . . . what is allowed and disallowed by Alaska
Airlines’ attendance and leave policies.”140 One of these policies addresses “attendance
reliability.”141 The parties dispute the significance of this attendance reliability policy; Ms.
West characterizes it as “subjective” and “irrelevant in this lawsuit,” while Alaska Airlines
responds that “the flexible nature of the policy underscores the importance of preemption
in this case.”142 But there is at present no active disagreement between the parties that
requires interpretation of the policy’s language — such as a dispute over the meaning of
specific terms, or over the specific requirements the policy imposes on employees.143 In
the absence of such disagreement, the Court finds that dismissal of Ms. West’s state law
disability discrimination claim based on preemption is not warranted.
ii. 	Disability Discrimination — Disparate Treatment (Count IV)
Ms. West also alleges that she was treated in a disparate manner because of her
140 Docket 8 at 28.
141 Docket 9-2 at 15–18. Alaska Airlines’ attendance reliability policy is incorporated into the CBA.
Docket 9-1 at 3–4; see Baker v. Kaiser Aluminum & Chem. Corp., 951 F. Supp. 953, 960 (E.D.
Wash. 1996) (rejecting argument that preemption analysis is “restricted . . . to only the CBA
document”).
142 Docket 14 at 16; Docket 18 at 10.
143 The attendance reliability policy states in part that “[a]ll employees are expected to strive for
the goal of perfect attendance.” 	Docket 9-2 at 15. 	Alaska Airlines has not asserted that this
language imposes a perfect attendance requirement; the Court would find such a reading
tenuous. Cf. Bhd. of Locomotive Engineers & Trainmen v. Long Island R. Co., 340 F. App’x 727,
730 (2d Cir. 2009) (rejecting a party’s “attempt to create ambiguity when in fact none exists”).
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disability in violation of AS 18.80.220.144 Ms. West appears to allege that she was treated
less favorably than a similarly situated employee prior to her termination.145 To establish
a prima facie case of disparate treatment under Alaska law, Ms. West must show that (1)
she is a disabled person; (2) she was qualified for her position; (3) she suffered an
adverse employment decision despite her qualifications, and (4) Alaska Airlines treated
her less favorably than other qualified persons.146
Alaska Airlines contends that to analyze this claim, the Court would have to
“interpret Alaska Airlines’ attendance and leave policies.”147 However, it is impossible to
determine from Ms. West’s Complaint whether Alaska Airlines is correct. 	In support of
this disability discrimination claim, the Complaint asserts only that “[Ms. West] has been
treated in a disparate manner on the basis of her disability” and that “[o]ther employees
who do not have a disability are treated more favorably.”148 	The Complaint does not
identify the other employees or explain how Ms. West was treated differently. As currently
pled, Ms. West’s disparate treatment claim does not implicate an active dispute over the
interpretation of the CBA, and thus is not preempted by the RLA. However, as discussed
below, Count IV fails to state a claim upon which relief can be granted.149
144 Docket 1 at 10–11, ¶¶ 65–67.
145 See Docket 14 at 39.
146 See Miller v. Safeway, Inc., 102 P.3d 282, 291 (Alaska 2004).
147 Docket 8 at 30.
148 Docket 1 at 10–11, ¶¶ 66–67. Ms. West also incorporates the Complaint’s previous paragraphs
into the section discussing this claim. Docket 1 at 10, ¶65. However, it is not apparent what other
allegations in the Complaint support Ms. West’s disparate treatment claim.
149 See infra notes 213–18 and accompanying text.
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iii. Reasonable Accommodation and Interactive Process (Count V)
Ms. West next contends that Alaska Airlines breached its duty to engage in the
interactive process and to reasonably accommodate her disability in violation of AS
18.80.220.150 As with Ms. West’s other claims, Alaska Airlines does not assert that these
claims arise entirely from the CBA.151 	It argues, however, that the interpretation of the
CBA and its policies will be required to determine whether the airline breached its duty to
provide a “reasonable accommodation” or whether allowing leave would have imposed
an “undue hardship.”152
The Ninth Circuit addressed a similar situation in Humble v. Boeing Co.153 Humble
suffered an on-the-job injury and filed a state law reasonable accommodation claim.154
Boeing maintained that the claim was preempted under the LMRA155 because “the CBA,
which provides an intricate scheme of seniority, must necessarily be interpreted to
determine for which jobs Humble would have been eligible if her accommodation took the
form of a transfer to a light duty position.”156 The Circuit Court rejected this argument on
two grounds. 	First, the court held that it was not apparent that the plaintiff’s claim
necessarily implicated the CBA’s complex seniority provisions. “A mere possible reliance
on a CBA provision does not suffice to trigger preemption; at the very least, the fact that
150 Docket 1 at 11, ¶¶ 68–71.
151 See Alaska Airlines, Inc. v. Schurke, 898 F.3d 904, 926 (9th Cir. 2018) (en banc).
152 Docket 8 at 30–32.
153 305 F.3d 1004 (9th Cir. 2002).
154 Id. at 1009.
155 See supra note 77.
156 Humble, 305 F.3d at 1010.
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a need to interpret the CBA is only hypothetical seriously undercuts a defendant's
argument that the state law claim ‘substantially depends’ on the terms of the CBA.”157
Second, the court held that “the mere need to refer to a CBA to determine the jobs for
which a disabled employee might be eligible may not be sufficient to trigger § 301
preemption, even if such consultation is certain to occur.”158 In reaching this conclusion,
the Humble court relied in part on Jimeno v. Mobil Oil Corp., an earlier Ninth Circuit case
that also addressed LMRA preemption of a state law reasonable accommodation claim.
To resolve that claim, “the Jimeno panel recognized that it would be necessary to consider
factors such as facility size, number of employees, composition of the workforce, and
facility budgets, many of which might involve consultation of the CBA.”159 Nevertheless,
the Jimeno court concluded that “looking to the CBA to make these determinations
rendered the CBA only ‘peripherally relevant’ to the claim, and so did not mandate
preemption.”160 	The Humble court characterized the Jimeno analysis as “closely on
point,” and held that Humble’s reasonable accommodation claim did not “’substantially
depend’ upon application and interpretation” of the CBA.161
As 	in 	Humble 	and 	Jimeno, 	the 	resolution 	of 	Ms. 	West’s 	reasonable
157 Id. (footnote omitted).
158 Id. 1010 (citing Jimeno v. Mobil Oil Corp., 66 F.3d 1514, 1519 (9th Cir. 1995)).
159 Humble, 305 F.3d at 1010–11 (citing Jimeno, 66 F.3d at 1527).
160 Id. at 1011 (citing Jimeno, 66 F.3d at 1527).
161 Id.; see also Leaea, No. 18-CV-00749-SI, 2018 WL 3777566, at *8 (footnote omitted)
(“Similarly, although the Court may be required to refer to the RAP Policy in connection with
evaluating plaintiff’s reasonable accommodation and interactive process claims, defendant has
not shown that the Court would be required to interpret any disputed terms in order to adjudicate
those claims. . . . There is no need to interpret the CBA to determine whether the parties failed to
communicate and explore in good faith possible accommodations for the plaintiff.”).
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accommodation and interactive process claims do not necessarily require interpretation
of the CBA. Alaska Airlines contends that Ms. West’s reasonable accommodation claim
will “require the Court or jury to analyze the CBA provisions on holiday leave, sick leave,
personal leaves of absence, and medical leaves of absence, as well as policies and
practices for use of paid and unpaid leave.”162 However, it is not clear to the Court that
this claim would necessarily implicate all of these policies and provisions. Even if it did,
Alaska Airlines has not shown that these policies and provisions would be more than
“peripherally relevant” to the reasonable accommodation analysis.163 Alaska Airlines also
argues that “[t]o the extent [Ms. West’s] leave would require other employees to be
assigned extra shifts, the provisions regarding assignment of overtime and rest periods
would 	also 	be 	implicated.”164 	However, 	it 	has 	not 	shown 	that 	any 	reasonable
accommodation would necessarily implicate these provisions.165 Lastly, Alaska Airlines
contends that its “program and policy on temporary modified duties would also require
evaluation to analyze Plaintiff’s accommodation claim.166 	But Alaska Airlines has not
shown that there is currently a dispute over the meaning of any terms in this policy.
Accordingly, 	Alaska 	Airlines’ 	motion 	to 	dismiss 	Ms. 	West’s 	state 	law 	reasonable
accommodation and interactive process claims as preempted by the RLA will be denied.
162 Docket 8 at 31; see Docket 9-1 at 33–45, Docket 9-2 at 9–14.
163 Humble, 305 F.3d at 1011 (citing Jimeno, 66 F.3d at 1527).
164 Docket 8 at 31; see Docket 9-1 at 23–24, 26–32.
165 See Schurke, 898 F.3d at 921 (“[A] hypothetical connection between the claim and the terms
of the CBA is not enough to preempt the claim.”) (quoting Cramer v. Consol. Freightways, Inc.,
255 F.3d 683, 691 (9th Cir. 2001), as amended (Aug. 27, 2001))); Humble, 305 F.3d at 1010 (“A
mere possible reliance on a CBA provision does not suffice to trigger preemption.”).
166 Docket 8 at 31; see also Docket 9-2 at 20–25.
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iv. Breach of Implied Covenant of Good Faith and Fair Dealing (Count VI)
Ms. West contends that her employment with Alaska Airlines “includes the implied
covenant of good faith and fair dealing which is embodied in every employment
relationship entered into in Alaska and imposes a duty on Defendant to treat its
employees in a fair, equitable, nonbiased, and nondiscriminatory manner.”167 She further
contends that Alaska Airlines breached this covenant.168 	Alaska Airlines responds that
this is a “contractual claim” that “cannot be considered without interpretation of the
[CBA].”169
In Eldridge v. Felec Services, Inc., the Ninth Circuit considered whether a cause
of action under Alaska law for breach of the implied covenant of good faith and fair dealing
was preempted by the LMRA.170 	Eldridge asserted that she had been dismissed in
retaliation 	for 	pursuing 	her 	rights 	under 	the 	Alaska 	Worker’s 	Compensation 	Act
(“AWCA”).171 	The Circuit Court acknowledged that “Alaska courts characterize a
retaliatory dismissal in violation of the implied covenant of good faith as a contract cause
of action.”172 	But the court concluded that the plaintiff’s claim “would exist even in the
absence of a collective bargaining agreement” and that the elements of the plaintiff’s
claim would not require the court to interpret any term of a CBA.173 Accordingly, it held
167 Docket 1 at 11, ¶ 73.
168 Docket 1 at 12, ¶¶ 74–75.
169 Docket 8 at 33.
170 Eldridge v. Felec Servs., Inc., 920 F.2d 1434, 1436 (9th Cir. 1990).
171 Id. at 1437; see AS 23.30.001 et seq.
172 Eldridge, 920 F.2d at 1437 (citing Reed v. Municipality of Anchorage, 782 P.2d 1155, 1158
(Alaska 1989)).
173 Id. at 1438.
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that the LMRA did not preempt the claim.174
Ms. West’s Complaint appears to assert that Alaska Airlines breached the implied
covenant by failing to adhere to the terms of the CBA.175 	Such a claim would be
preempted by the RLA. But at oral argument, Ms. West clarified that she is arguing that
“because there was a breach in the law . . . [Alaska Airlines] breache[d] [the] implied
covenant of good faith.”176 	Ms. West’s claim is not perfectly analogous to the claim at
issue in Eldridge; it does not arise under the AWCA. 	However, a claim based on an
alleged violation of AS 18.80.220—like that examined in Eldridge—does not “arise
entirely” from the CBA.177 	Alaska Airlines contends that the claim would “require
interpretation of Alaska Airlines’ CBA and incorporated policies.”178 However, a state law
breach of covenant claim based on the alleged statutory violations discussed above
would implicate the same analysis as those statutory claims. Accordingly, the Court will
deny Alaska Airline’s motion to dismiss this claim as preempted by the RLA insofar as
Ms. West alleges that Alaska Airlines breached the implied covenant of good faith and
fair dealing by committing violations of AS 18.80.220. However, the Court will grant the
motion to dismiss insofar as Ms. West alleges that Alaska Airlines breached the implied
174 Id. Alaska Airlines argues that Eldridge is distinguishable because “the employee’s conduct
which allegedly motivated his discharge . . . was entirely separate and not intertwined with the
conduct for which he was terminated.” Docket 18 at 16. However, the Eldridge court’s reasoning
does not appear to be contingent upon this lack of intertwinement.
175 See Docket 1 at 12, ¶ 75.
176 Docket 28 at 15.
177 See Eldridge, 920 F.2d at 1439 (“Under Alaska law, a breach of the implied covenant of good
faith occurs if the employer discharged the employee in retaliation for conduct protected by public
policy.” (citing Reed, 782 P.2d at 1158)).
178 Docket 18 at 15.
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covenant by violating the CBA itself.179
v. 	Intentional Infliction of Emotional Distress180
Lastly, Ms. West alleges that her termination in violation of federal and state law
constituted intentional infliction of emotional distress under Alaska law.181 Alaska Airlines
contends that this claim is “grounded in the CBA and preempted under the RLA.”182
In Humble v. Boeing Co., Humble alleged that Boeing “engaged in extreme and
outrageous conduct under Washington law by repeatedly placing her back in a job which
she could not medically perform.”183 The Ninth Circuit established general principles to
determine when an intentional infliction of emotional distress claim will be preempted.184
First, a claim is preempted if “the CBA specifically covers the conduct at issue.”185
Conversely, “if the CBA does not ‘cover’ the allegedly extreme and outrageous conduct,
the intentional infliction claim will not be preempted.”186 	Lastly, “even if the CBA does
purport to cover the conduct at issue, the outrage claim still may not be preempted if it
179 See Schurke, 898 F.3d at 921 (“If a claim arises entirely from a right or duty of the CBA — for
example, a claim for violation of the labor agreement, whether sounding in contract or in tort, . . .
it is, in effect, a CBA dispute in state law garb, and is preempted.” (citation omitted)).
180 See supra note 36.
181 Docket 1 at 12, ¶¶ 77–78; see Docket 14 at 47–48.
182 Docket 8 at 34.
183 305 F.3d at 1014. 	The Humble court considered whether a plaintiff’s claim was preempted
under the LMRA. See supra note 77.
184 Id. at 1013–14.
185 Id. at 1013.
186 Id.; see also id. at 1013 n.49 (“The difficulty, of course, and the source of some inconsistency
in our case law, is how to determine whether the CBA 	‘covers’ the conduct at issue. . . . The
inconsistency often appears to be explainable by whether allegations of overtly abusive and/or
harassing conduct are at issue: vague terms vesting discretion in management typically will not
be read as authorizing or ‘covering’ abusive conduct, to which the parties would not, and possibly
could not (without violating public policy) expressly agree.”).
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has been tacked on to the violation of a separate specific non-negotiable state statute,
the violation of which always rises to the level of outrageousness.”187
Applying these principles, the Humble court concluded that the LMRA preempted
a state law outrage claim. 	The court first noted that a CBA provision “fairly directly
addresse[d]” the purportedly outrageous conduct upon which the claim was premised.188
It then held that the claim could not be “tacked on” to reasonable accommodation claims
established by a state statute, as it had “found no authority in Washington law for the
proposition that a violation of that state's reasonable accommodation provisions always
rises to the level of extreme and outrageous conduct” and saw “no reason to define failure
to reasonably accommodate as inherently outrageous, particularly in the absence of
briefing on this point.”189
It is difficult to reconcile the preemption analysis set out in Humble with the two-
part test articulated in Schurke. Schurke suggests that a claim is preempted if it “arise[s]
entirely from the CBA” or “require[s] construction of the CBA.”190 	In contrast, Humble
suggests that the claim is preempted if the CBA “covers” the conduct at issue, unless the
187 Id. at 1013–14 (emphasis in original).
188 Id. at 1014. The CBA provision stated: “[W]here an employee returns from a leave of absence
. . . and he is medically not able to perform the job which he last held, he will be considered for
any job that he is qualified and able to perform, or (if a surplus occurred that would have affected
him during such leave) be subjected to surplusing procedures, all in accordance with Article 22.”
Id. at 1009 (emphasis omitted).
189 Id. (emphasis in original); see also Farmer v. United Broth. of Carpenters and Joiners of
America, Local 25, et al., 430 U.S. 290, 305 (1977) (“[D]iscrimination in employment opportunities
cannot itself form the underlying ‘outrageous’ conduct on which the state-court tort action is based.
To hold otherwise would undermine the pre-emption principle.”).
190 898 F.3d 904, 926–27 (9th Cir. 2018) (en banc).
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claim is “tacked on” to a per se outrageous violation of a state statute.191 	If the Court
applied the Schurke test, its analysis of this claim would mirror the analysis of the implied
covenant of good faith and fair dealing claim; as pled, Ms. West’s IIED claim is premised
on statutory violations that do not require construction of the CBA. However, Schurke did
not address the analytical framework set out in Humble. 	Furthermore, it did not purport
to overrule any past preemption cases. Accordingly, the Court concludes that Ms. West’s
IIED claim should be analyzed pursuant to the principles described in Humble.
Those principles indicate that Ms. West’s IIED claim is preempted. First, while the
claim is based on violations of state and federal law, Ms. West asserts that it is her
termination that constituted the “extreme and outrageous conduct.”192 As in Humble, the
CBA covers—or at least “purport[s] to cover”—the employer’s conduct; it incorporates
policies and provisions that “fairly directly address[]” employee termination.193 	While
Humble does not precisely suggest how a court should determine whether the CBA
“covers” conduct, Ms. West’s case does not seem to allege “overtly abusive and/or
harassing conduct” that would justify a narrow interpretation of the CBA’s scope.194 As
in Humble, Ms. West’s claim is “tacked on” to violation of a state statute.195 However, the
Court has found “no authority in [Alaska] law for the proposition that a violation of that
state's reasonable accommodation provisions always rises to the level of extreme and
191 Humble, 305 F.3d at 1013–14; see supra note 186.
192 Docket 1 at 12, ¶ 78; see Docket 14 at 47.
193 Humble, 305 F.3d at 1014; see Docket 9-1 at 5, Docket 9-2 at 16–18.
194 305 F.3d at 1013 n.49; see Farmer, 430 U.S. at 305.
195 Humble, 305 F.3d at 1014 (emphasis in original).
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outrageous conduct.”196 Furthermore, because Ms. West’s claim is based on violations
of civil statutes, it is distinguishable from other cases in which the Ninth Circuit found that
the violation of a state criminal statute would be per se outrageous.197 Therefore, Alaska
Airlines’ motion to dismiss Ms. West’s IIED claim will be granted.
To summarize, Alaska Airlines’ motion to dismiss Ms. West’s FMLA retaliation and
interference claim (Count I) as precluded by the RLA will be denied. The airline’s motion
to dismiss Ms. West’s claims of discrimination in violation of AS 18.80.220(a)(1) (Count
III) and breach of the duty to engage in the interactive process and reasonably
accommodate her disability in violation of AS 18.80.220 (Count V) as preempted by the
RLA will be denied. While the Court declines to conclude that Ms. West’s claim of
disparate treatment in violation of AS 18.80.220 (Count IV) is preempted by the RLA, the
claim will be dismissed for failure to state a claim upon which relief can be granted.198
Alaska Airlines’ motion to dismiss Ms. West’s breach of the implied covenant of good faith
and fair dealing claim (Count VI) will be denied insofar as Ms. West alleges that Alaska
Airlines breached the covenant by violating the FMLA or AS 18.80.220; it will be granted
insofar as Ms. West alleges that Alaska Airlines breached the covenant by violating the
196 Id. at 1014. Ms. West acknowledges this limitation but provides no evidence that the violations
she alleges are per se outrageous. Docket 14 at 47–48.
197 See Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 697 (9th Cir. 2001), as amended (Aug.
27, 2001) (violation of California penal law was per se outrageous); Miller v. AT & T Network Sys.,
850 F.2d 543, 550 n.5 (9th Cir. 1988), opinion amended on denial of reh'g, (Aug. 24, 1988) (“[I]f a
plaintiff alleges that an employer's criminal behavior inflicted extreme emotional distress, the
emotional distress claim need not be preempted. The behavior could be found sufficiently
outrageous to permit recovery without regard to whether the behavior might be permitted under
the CBA. Its outrageousness would be clear from the state's decision to make the behavior
criminal.”).
198 See infra notes 213–18.
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CBA itself. Based on Humble, the Court finds the RLA preempts Ms. West’s IIED claim
(Count VII).199
3. 	Failure to Arbitrate
Alaska Airlines next argues that Ms. West’s claims “are subject to the mandatory
arbitration procedures of the CBA.” 	It contends that while Ms. West’s claims may be
“couch[ed] . . . as violations of FMLA, discrimination, or retaliation, . . . . the root of all of
her claims is whether her termination was appropriate under the CBA’s attendance
policy.” 	Accordingly, the airline maintains that “[n]one of these claims can be resolved
without interpretation and application of the attendance policy, and the CBA firmly
requires such disputes to be resolved by arbitration.”200
In Wright v. Universal Market Service Corp., the United States Supreme Court held
that union-negotiated CBAs may require arbitration of statutory claims.201 	Wright also
established, however, that the waiver of a judicial forum for such claims must be “clear
and unmistakable.”202 Courts “will not infer from a general contractual provision that the
parties intended to waive a statutorily protected right unless the undertaking is explicitly
199 Alaska Airlines argues that the fact that Ms. West seeks wages, benefits, and other
compensation also weighs in favor of preemption and preclusion of all her claims. Docket 8 at
34. 	While the Seventh Circuit took this factor into consideration in Monroe v. Missouri Pacific
Railroad Co., it also noted that “this reason alone would not compel a finding that [the plaintiff’s]
claims involve application or interpretation of a CBA.” 115 F.3d 514, 518 n.4 (7th Cir. 1997) (citing
Livadas v. Bradshaw, 512 U.S. 107, 124–26 (1994) (“[T]he mere need to ‘look to’ the collective-
bargaining agreement for damage computation is no reason to hold the state law claim
defeated....”); Lingle, 486 U.S. at 413 n. 12)). Ms. West’s claims are not precluded or preempted
simply because the calculation of damages may require reference to the CBA.
200 Docket 8 at 38.
201 525 U.S. 70, 80 (1998) (declining to require arbitration of ADA claims).
202 Id. at 80 (citation omitted).
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stated.”203 An arbitration provision is clear and unmistakable if, for instance, it specifically
names the statutory right subject to mandatory arbitration.204
Alaska Airlines does not address the “clear and unmistakable” standard articulated
in Wright. 	It contends that Ms. West was required to arbitrate her claims because the
CBA requires that grievances related to attendance and termination be subject to
arbitration before the System Board of Adjustment and because the CBA “specifically
incorporates Alaska Airlines’ FMLA, anti-discrimination, and anti-retaliation policies.”205
The CBA provides that the System Board “shall have jurisdiction over disputes between
any employee or employees covered by this Agreement and the Company growing out
of 	grievances,” 	which 	include 	both 	“discipline 	grievances 	involving 	unsatisfactory
attendance” and “suspension and discharge grievances.”206 	However, this general
contractual provision does not expressly state that the parties will arbitrate specific
statutorily protected rights.207 Furthermore, Alaska Airlines’ policies do not expressly cite
to AS 18.80.220.208 The airline has issued a “Guide to Family and Medical Leave Rights
of COPs” that cites to the FMLA in detail.209 	However, the CBA provides that Alaska
203 Id.
204 See, e.g., 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 252 (2009) (naming “Title VII of the Civil
Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the
New York State Human Rights Law, [and] the New York City Human Rights Code.”).
205 Docket 8 at 38.
206 Docket 9-1 at 48–49, 50–51, 53.
207 See Montgomery v. Compass Airlines, LLC, 98 F. Supp. 3d 1012, 1019 (D. Minn. 2015) (holding
that CBA compelled arbitration of FMLA claims where CBA contained a general arbitration
provision and “an explicit statutory reference to the FMLA”).
208 Alaska Airlines’ System Regulations references the ADA on one page. See Docket 9-2 at 23.
209 Docket 9-2 at 26–42.
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Airlines may “modify [incorporated] manuals, policies and System Regulations during the
term 	of 	the 	Agreement.”210 	The 	CBA’s 	reference to 	these documents does not
demonstrate a “clear and unmistakable” intent to waive a judicial forum for these statutory
claims.211 Accordingly, Ms. West was not required to submit her FMLA and AS 18.80.220
claims to arbitration and Alaska Airlines’ motion to dismiss on this basis will be denied.212
4. 	Failure to State a Claim for Relief
Alaska Airlines separately contends that Ms. West’s state law disparate treatment
and intentional infliction of emotional distress claims should be dismissed for failure to
state a claim upon which relief can be granted.213 	As discussed above, the Court
concluded that the RLA preempts Ms. West’s claim for intentional infliction of emotional
distress214; accordingly, it considers here only whether Ms. West adequately pled her
disparate treatment claim under Alaska law.
Pursuant to the United States Supreme Court’s holdings in Ashcroft v. Iqbal and
210 Docket 9-1 at 5.
211 Wright, 525 U.S. at 80; see also Bernard v. Alaska Airlines, Inc., 367 P.3d 1156, 1165 (Alaska
2016) (“Even assuming that the agreement contains, by its reference to general policies and
codes of conduct, ‘an explicit incorporation of the statutory anti-discrimination requirements’ of
Alaska law, we 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.” (footnote omitted)).
212 To the extent that Ms. West’s breach of the implied covenant of good faith and fair dealing
claim is premised on these statutory violations, she was also not required to submit that claim to
arbitration. See supra notes 167–79 and accompanying text.
See also Bernard, 367 P.3d at 1158; Lingley v. Alaska Airlines, Inc., 373 P.3d 506, 510 (Alaska
2016), reh’g denied (June 29, 2016). The Alaska Supreme Court has concluded that language
substantially identical to that at issue here did not demonstrate a “clear and unmistakable” intent
to waive a judicial forum for claims based on Alaska statutory rights — including a claim for breach
of the implied covenant of good faith and fair dealing. See Bernard, 367 P.3d at 1162.
213 Docket 8 at 39–42; see Fed. R. Civ. P. 12(b)(6).
214 See supra notes 181–97 and accompanying text.
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Bell Atlantic Corp. v. Twombly, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’”215 In support of
her disparate treatment claim, Ms. West’s Complaint simply states that she “has been
treated in a disparate manner on the basis of her disability” and that “[o]ther employees
who do not have a disability are treated more favorably.”216 	The Complaint does not
explain how Ms. West was treated less favorably than other employees; it also does not
identify any other employees who were treated more favorably. In her opposition to the
motion to dismiss, Ms. West identifies an employee who was allegedly treated more
favorably than her.217 	However, when deciding a Rule 12(b)(6) motion to dismiss,
“[r]eview is limited to the complaint; evidence outside the pleadings . . . cannot normally
be considered.”218 In any event, Ms. West has not explained how she was treated less
favorably than the employee identified. Therefore, Ms. West’s disparate treatment claim
under state law has not been sufficiently pleaded in the Complaint. However, this claim
will be dismissed without prejudice and with leave to amend.
CONCLUSION
In light of the foregoing, IT IS ORDERED that Alaska Airlines’ Motion to Dismiss
at Docket 8 is DENIED in part and GRANTED in part as follows:
The Motion to Dismiss Count I, alleging retaliation and interference in violation of
215 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
556 (2007)).
216 Docket 1 at 11, ¶¶ 66–67.
217 Docket 14 at 7; Docket 15 at 6 ¶ 42.
218 Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir.1993) (quoting Farr v. United States,
990 F.2d 451, 454 (9th Cir.1993)).
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the FMLA, is DENIED.
The Motion to Dismiss Count II, alleging discrimination in violation of the ADAAA,
is GRANTED for failure to exhaust administrative remedies; the dismissal of this count is
with prejudice and without leave to amend.
The 	Motion to Dismiss 	Count 	III, alleging discrimination in 	violation of 	AS
18.80.220(a)(1), and Count V, alleging breach of the duty to engage in the interactive
process and reasonably accommodate her disability in violation of AS 18.80.220, is
DENIED.
The Motion to Dismiss Count IV, alleging disparate treatment in violation of AS
18.80.220, is GRANTED for failure to state a claim; the dismissal is without prejudice and
with leave to amend.
The Motion to Dismiss Count VI, alleging breach of the implied covenant of good
faith and fair dealing, is DENIED insofar as Ms. West alleges that Alaska Airlines
breached the covenant by committing certain statutory violations219; the motion is
GRANTED with prejudice and without leave to amend insofar as Ms. West alleges that
Alaska Airlines breached the covenant by violating the CBA itself.
The Motion to Dismiss the intentional infliction of emotional distress claim is
GRANTED with prejudice and without leave to amend.
Within 14 days of the date of this order, Ms. West may file an amended complaint
consistent with the terms of this order or a notice that she will proceed without Count IV.
Alaska Airlines’ answer shall be due 14 days thereafter.
219 The motion is denied insofar as Ms. West alleges violations of the FMLA and state law, but
granted as to alleged violations of the ADAAA.
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DATED this 6th day of December, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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