United States District Court, E.D. Missouri, Eastern Division
JOHN A. WATSON, V., Plaintiff,
AIR METHODS CORPORATION, Defendant.
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
case is again before the Court on a motion to dismiss by Air
Methods Corporation (Defendant). For the following reasons,
the motion will be denied.
allegations of the complaint, summarized by the Eighth
Circuit Court of Appeals, are as follows.
From July 2013 until May 2014, Watson worked as a flight
paramedic for Air Methods. Watson claims that during his
employment with Air Methods, he observed numerous violations
of federal aviation safety regulations. These included a
pilot making cell-phone videos during flight, members of a
medical crew text messaging during critical phases of flight,
a pilot attempting to take off despite accumulation of frost
and ice on the aircraft, and another pilot making unnecessary
"run-on landings." Watson reported these alleged
violations to Air Methods's corporate office. He asserts
that the company responded by suspending him and later
terminating his employment.
In August 2014, Watson sued Air Methods ... for the
common-law tort of wrongful discharge in violation of public
policy. Under Missouri common law, an employer may not
terminate an employee "for reporting wrongdoing or
violations of law to superiors or public authorities."
Flesher v. Pepose Vision Inst., P.C., 304S.W.3d81,
Watson v. Air Methods Corp., 870 F.3d 812, 814-15
(8th Cir. 2017) (en banc).
on the Eighth Circuit precedence of Botz v. Omni Air
Int'l, 286 F.3d 488 (8th Cir. 2002), this
Court held that Watson's claims were expressly preempted
by the Airline Deregulation Act ("ADA"), 49 U.S.C.
§ 41713(b)(1), and the Whistleblower Protection Program
("WPP"), 49 U.S.C. § 42121, and dismissed the
case. Sitting en banc, the Eighth Circuit overruled, in
relevant part, the Botz decision and concluded that
Watson's claims were not expressly preempted by the ADA
or by the WPP. Watson, 870 F.3d at 820. The court
declined to reach Defendant's arguments that Plaintiffs
state-law claims were impliedly preempted by the Federal
Aviation Act of 1958 ("FAA"), 72 Stat. 731, 754-71
(1958), and the WPP.
now raises its implied-preemption arguments in a motion to
dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a
survive a 12(b)(6) motion to dismiss, 'a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.'"
McShane Constr. Co. v. Gotham Ins. Co., 867 F.3d
923, 927 (8th Cir. 2017) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). "A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.'"
Id. (quoting Iqbal, 556 U.S. at 678).
Missouri law, "[t]o demonstrate wrongful discharge, a
plaintiff 'must show that he reported to superiors or to
public authorities serious misconduct that
constitutes a violation of the law and of well
established and clearly mandated public
policy.'" United States ex rel. Miller v. Weston
Educ, Inc., 840 F.3d 494, 507 (8th Cir. 2016) (quoting
Frevert v. Ford Motor Co., 614 F.3d 466, 471 (8th
Cir. 2010)). "The reported violation must be based on
'explicit authority' such as 'a constitutional
provision, a statute, a regulation based on a statute or a
rule promulgated by a governmental body.'"
Id. (quoting Frevert, 614 F.3d at 471).
Under this public-policy exception, a plaintiff must prove
that his "whistle blowing ... was a 'contributing
factor' in the employer's decision to discharge
him." Bazzi v. Tyco Healthcare Group, 652 F.3d
943, 947 (8th Cir. 2015) (quoting Flesher, 304
S.W.3d at 94-95). Also, he "must show both that [he]
harbored a good-faith belief that the conduct in question
violated the public policy at issue, and that 'this good
faith belief was objectively reasonable.'"
Graham v. Hubbs Machine and Mfg., Inc., 92 F.Supp.3d
935, 942 (E.D. Mo. 2015) (quoting Bazzi, 652 F.3d at
alleges he reported misconduct that violated a statute, 49
U.S.C. § 44732 (prohibiting a flight crewmember from
using, among other things "a personal wireless
communications device" when aircraft is being operated),
and four regulations -14 C.F.R. §§91.21 (similar to
§44732), 91.13 (prohibiting careless or reckless
operation of aircraft), 135.144 (similar to § 44732),
and 135.227 (regulating when pilot may operate aircraft in
icing conditions). Defendant argues that the cited statute
and regulations are part of a comprehensive federal scheme
"occup[ying] the field of aviation safety" and,
consequently, Plaintiffs claims implicating air safety
concerns are impliedly preempted by the FAA and WPP.
preemption exists where a federal statutory or regulatory
scheme is so pervasive in scope that it occupies the field,
leaving no room for state action.'" Lefaivre v.
KV Pharm. Co.,636 F.3d 935, 939 (8th Cir. 2011)
(quoting In re Aurora Dairy Corp. Organic Milk Mtg. &
Sales Practices Litig.,621 F.3d 781, 792 (8th Cir.
2010)). "A tension exists 'between the presumption
against preemption and the possibility of implied
preemption'; as a result, 'it is often a perplexing
question whether Congress has precluded state action or by
the choice of selective regulatory measures has left ...