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Rabe v. United Airlines

August 14, 2009


The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge

Judge Rebecca R. Pallmeyer


Laurence Rabé ("Rabe" or "Plaintiff") filed this action against her former employer, United Airlines, Inc. ("United" or "Defendant') on October 12, 2008. Rabé alleges that United terminated her employment as a flight attendant on grounds of national origin, age, sexual orientation, and in retaliation for complaints about employee discrimination. Plaintiff seeks recovery under Title VII of the Civil Rights Act of 1994, as amended, 42 U.S.C. § 2000 et seq. ("Title VII"), the Age Discrimination and Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), and the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. ("IHRA"). Plaintiff filed her original complaint pro se on October 20, 2008, and a Second Amended Complaint ("2d Am. Compl.") through counsel on Jan. 27, 2009. United moves to dismiss the Complaint pursuant to FED. R. CIV. P. 12(b)(1), (3), and (6).

United argues that the court lacks subject matter jurisdiction because Title VII and the ADEA do not protect non-U.S. citizens performing work outside the United States. (Def.'s Mem. in Support of its Mot. to Dismiss ("Def.'s Mem.") at 5.) United also contends that venue and jurisdiction are improper because Plaintiff's Title VII and ADEA claims are precluded by the Railway Labor Act, 45 USC §151 et seq., and by terms of Plaintiff's emploment agreement that compel resolution of this dispute by private arbitration. Finally, United moves to dismiss Plaintiff's IHRA claims on the ground that the Act protects only employment performed within Illinois. For the reasons discussed below, the court concludes that it lacks subject matter jurisdiction to hear Plaintiff's claims Title VII, the ADEA, and the IHRA, and dismisses Plaintiff's Second Amended Complaint in its entirety.


Plaintiff is a French citizen whom United initially hired in November 1993 to work as a flight attendant based in Paris. (2d Am. Compl. ¶ 2.) In 1997, she was transferred to United's Hong Kong base, where she worked until her termination in April 2008. (Id. at ¶ 7.) Plaintiff's Complaint states of her employment:

The majority of the time plaintiff was employed by UA, plaintiff worked flights to and from the United States through United States air space, including flights from Paris to various United States cities, and flights from Hong Kong to Los Angeles or San Francisco. When plaintiff was stationed in Paris, 100% of her flights were to and from the United States, and for much of the time plaintiff was stationed in Hong Kong, 90% of the flights plaintiff worked consisted of such flights. (Id. at ¶ 12.) During her employment, Plaintiff paid membership dues to the U.S.-based Association of Flight Attendants, enjoyed the same "perks" and was covered by the same employment and union contracts as her U.S.-national co-workers, and was paid in U.S. dollars on which she paid Federal income and payroll taxes. (Id. at ¶¶ 9-11.) The Complaint does not discuss her immigration or visa status during the time she spent in the United States, but according to her statements to the Equal Opportunity Employment Commission ("EEOC"), she does not hold a green card and United did not allow her to enter a U.S. address into their employment files, which show her residence as Hong Kong.*fn1 ("EEOC Additional Information Sheets" at 4, Ex. B to 2d Am. Compl.)

Plaintiff took a voluntary furlough from her employment with United in May 2002. (2d Am. Compl. ¶ 17.) The Complaint does not indicate when she returned to work, but Sarah Voss, a Senior Legal Assistant at United, states in her affidavit that United recalled Plaintiff in August 2005. (Voss Decl. ¶ 3, Ex. 1 to Def.'s Mem.) From that time, Plaintiff made no further flights to the United States as a United employee. (Id. ¶ 4.) In addition to Voss's testimony, Defendant supports this claim with flight records showing that Plaintiff's last trip in connection with her work for United was on April 29, 2002. (Id., Part A.)

During Plaintiff's furlough, Plaintiff's co-worker, identified in the Complaint only as "Mr. Fernandes," was promoted to "functional supervisor" for Plaintiff's Hong Kong base of employment. (2d Am. Compl. ¶ 16.) Plaintiff alleges that in 1997 (prior to her furlough), Mr. Fernandes told her, "It is not right to be gay and it is illegal in India." (Id. ¶ 15.) Afterward, Plaintiff tried to conceal from Mr. Fernandes that she is a lesbian and that she regularly visits her partner, who lives in Los Angeles. (Id. ¶¶ 16-17.) Plaintiff alleges that after she returned from her furlough, Mr. Fernandes, who gained access to Plaintiff's employment and domestic partner information after his promotion, began making comments suggesting that he knew she is a lesbian and asking her regularly whether she was flying to Los Angeles. (Id. ¶¶ 17-18.)

On September 11, 2007, Mr. Fernandes began an investigation into Plaintiff's alleged misuse of company-issued personal travel tickets and of a company-issued parking pass for the Los Angeles airport. (Id. ¶ 19.) Plaintiff was cleared of any wrongdoing in connection with her use of the parking pass, but United terminated her employment on April 5, 2008, allegedly for her "misuse" of personal travel tickets. (Id. ¶¶ 19, 26.) Without specifying what this alleged misuse entailed, Plaintiff asserts that her use of the personal travel tickets did not violate United's labor agreement or rules and did not differ from the behavior "engaged in by other UA employees at the Hong Kong base on a regular basis" without any resulting disciplinary action by United. (Id. ¶¶ 19, 24.) Plaintiff claims that she alone was singled out for investigation and termination because of her sexual orientation (homosexual), her age ("over 40 years") (Id. ¶ 29), and her national origin (French) (Id. ¶ 27). Plaintiff also believes that United supervisors had a "quota of flight attendants to terminate due to [the company's] financial troubles" and that Defendant was motivated to replace Plaintiff, an experienced employee "at the top of her pay scale," with a younger person "at lower hourly wages." (Id. ¶ 25.)

During the investigation leading to Plaintiff's dismissal, Mr. Fernandes allegedly questioned Plaintiff at length about her sexual orientation and "forced Plaintiff to reveal that she was a lesbian and had a domestic partner," an admission that Plaintiff claims "visibly upset" Mr. Fernandes. (Id. ¶¶ 21, 26.) Plaintiff alleges that she reported Mr. Fernandes's harassing behavior to Jennifer Wissig, her Hong Kong base manager, but that Ms. Wissig did nothing to stop the harassment and even participated in some of it. (Id. ¶ 22.) In addition, Plaintiff alleges that throughout the investigation, from September 2007 through her termination in April 2008, she was not permitted to fly due to her "ABS" status. (Rabé Decl. ¶ 1, Ex. A to Pl.'s Resp.) Plaintiff does not define "ABS" status, but in her Response to Defendant's Motion to Dismiss, she asserts that "she was scheduled and paid for [but did not complete] flights to the USA (Los Angeles, San Francisco, Chicago)" during the period she was under investigation. (Pl.'s Resp. at 3.) Plaintiff does not specify the number of flights she was scheduled for and did not complete, nor did she submit any documents in support of this allegation.

Following her termination, Plaintiff filed charges of discrimination with the EEOC on June 28, 2008 (Ex. B. to 2d Am. Compl.) and with the Illinois Department of Human Rights on September 27, 2008. (Ex. C. to 2d Am. Compl.) On August 22, 2008, Plaintiff received a right-to-sue letter from the EEOC, and on October 20, 2008, she filed suit in this court pursuant to the forum-selection and choice-of-law provision in her employment contract with United. (Ex. A to 2d Am. Compl.) That provision reads in its entirety:

Jurisdiction over any and all claims, grievances, charges, disputes, and lawsuits regarding or in any way related to your terms and conditions of employment shall be vested exclusively in either the AFA-United grievance procedure and board of adjustment which is the mandatory jurisdiction provided for by the Railway Labor Act, and the A.F.A. agreement, or in Courts of competent jurisdiction of the United States and State of Illinois where such is permitted by the Railway Labor Act and the A.F.A. agreement. ("Agreement Regarding Terms and Conditions of ...

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