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Upperman v. Southwest Airlines Co.

United States District Court, S.D. Ohio, Eastern Division

January 24, 2018

STEVE UPPERMAN, Plaintiff,
v.
SOUTHWEST AIRLINES CO., et al., Defendants.

          GEORGE C. SMITH, Magistrate Judge

          OPINION AND ORDER

          GEORGE C. SMITH, UNITED STATES DISTRICT COURT JUDGE

         This matter is before the Court upon the Motion of Defendants Southwest Airlines Co., Tim Cavanagh, and Jeff Slicer[1] to Dismiss Plaintiff's Complaint under Federal Rules of Procedure 12(b)(1) and 12(b)(6) (“Defendants' Motion to Dismiss”) (Doc. 6). The motion is fully briefed and ripe for disposition. For the following reasons, Defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

         I. BACKGROUND

         Plaintiff Steve Upperman was employed by Defendant Southwest Airlines Co. as a ramp agent from 2000 through 2015. (Doc. 1, Compl. ¶¶ 19, 73). In 2007, Plaintiff was diagnosed with multiple sclerosis and began using intermittent leave under the Family and Medical Leave Act (29 U.S.C. § 2601, et seq., “FMLA”) in connection with his illness, but was still able to perform the essential functions of his job. (Id. ¶¶ 23-25, 31). In 2015, however, his doctor altered his medication dosage, causing Plaintiff to suffer intermittent debilitating side effects. (Id. ¶¶ 33-37).

         To accommodate for these side effects, Plaintiff made requests to Jeff Slicer for changes to his schedule and to be assigned job duties that were less physically strenuous. (Id. ¶¶ 40, 43). Slicer denied these requests, citing concerns with union requirements, even though Plaintiff had witnessed similar accommodations being made for other non-disabled union employees. (Id. ¶ 41-42). Plaintiff also applied for an open Operations position that would be less physically demanding. However, Tim Cavanagh denied Plaintiff's request, citing concerns with Plaintiff's attendance. (Id. ¶¶ 47-51).

         Ultimately, Southwest held a fact-finding hearing regarding Plaintiff's attendance and use of FMLA leave. (Id. ¶ 54). As a result, Southwest terminated Plaintiff's employment on August 11, 2015, due to “abuse of sick leave.” (Id. ¶ 74).

         II. DISCUSSION

         Plaintiff filed his Complaint on April 25, 2017, asserting five claims: (1) retaliation in violation of the FMLA; (2) disability discrimination in violation of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq., “ADA”); (3) disability discrimination in violation of Ohio's antidiscrimination statute (Ohio Rev. Code § 4112.01 et seq.); (4) failure to accommodate in violation of the ADA, and (5) failure to accommodate in violation of § 4112.01 et seq.

         Defendants now move to dismiss all five claims for lack of subject-matter jurisdiction under Rule 12(b)(1), arguing that all of Plaintiff's claims are pre-empted by the Railway Labor Act (45 U.S.C. § 151, et seq., “RLA”) and are therefore subject to mandatory arbitration as required by the RLA. Defendants further seek dismissal of Plaintiff's ADA claims under Rule 12(b)(6) due to Plaintiff's failure to exhaust his administrative remedies before filing suit. (Doc. 6). The Court will consider these arguments in turn.

         A. Lack of subject-matter jurisdiction under Rule 12(b)(1)

         1. Standard of review

         Federal Rule of Civil Procedure 12(b)(1) provides for dismissal when the court lacks subject-matter jurisdiction. Without subject-matter jurisdiction, a federal court lacks authority to hear a case. Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir. 1990). Motions to dismiss for lack of subject-matter jurisdiction fall into two general categories: facial attacks and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack under Rule 12(b)(1) “questions merely the sufficiency of the pleading, ” and the trial court therefore takes the allegations of the complaint as true. Wayside Church v. Van Buren Cty., 847 F.3d 812, 816 (6th Cir. 2017) (quoting Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). To survive a facial attack, the complaint must contain a short and plain statement of the grounds for jurisdiction. Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016).

         A factual attack is a challenge to the factual existence of subject-matter jurisdiction. No. presumptive truthfulness applies to the factual allegations. Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015). When examining a factual attack under Rule 12(b)(1), “the court can actually weigh evidence to confirm the existence of the factual predicates for subject-matter jurisdiction.” Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015) (quoting Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012)). The plaintiff has the burden of establishing jurisdiction in order ...


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