                                                            PUBLISH

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                          _______________

                            No. 97-2386
                          _______________

               D. C. Docket No. 95-1149-CIV-ORL-22


FRANK J. PARISE,

                                                 Plaintiff-Appellant,


                               versus


DELTA AIRLINES, INC.,

                                                  Defendant-Appellee.

                   ______________________________

          Appeal from the United States District Court
               for the Middle District of Florida
                 ______________________________
                           (May 28, 1998)


Before BIRCH, Circuit Judge, HILL and KRAVITCH, Senior Circuit
Judges.
BIRCH, Circuit Judge:

     Frank J. Parise appeals the district court’s order dismissing his

employment discrimination action based on federal preemption

under the Airline Deregulation Act of 1978 (ADA), 49 U.S.C. §

41713(b)(1). For the reasons that follow, we conclude that the

district court erred in finding Parise’s suit to be preempted and

remand for proceedings consistent with this opinion.



                        I. BACKGROUND

     Parise worked as a customer service agent for Delta Air Lines,

Inc. (Delta). According to the complaint, in 1994 Parise engaged in

a “heated discussion” with a supervisor about the working conditions

at the airline. R1-2 at 3. During this conversation, Parise apparently

threatened several co-workers that he “would ‘kick their butts’ if he

caught them off company property after hours.” Id. at 4. Delta

terminated Parise’s employment two weeks after this incident.




                                  2
     Parise subsequently filed this action in state court and alleged

that Delta had discriminated against him on the basis of age. The

action was filed pursuant to Fla. Stat. § 760.10(1)(a) and 42 U.S.C.

§ 1984.1 Delta removed the case to federal district court on the

basis of diversity of citizenship; the basis for removal is not at issue

here. In its answer to Parise’s complaint, Delta asserted, inter alia,

that its conduct toward Parise was justified and that the action was

preempted by the ADA.2 The district court dismissed the suit after

finding that Parise’s age discrimination claim related to the services

that Delta provided. Specifically, the court noted:

           [T]he Court finds persuasive Delta’s argument
           that its decision to terminate Parise, a customer
           service agent who admittedly made violent
           threats to a supervisor and coworker, is one
           that is “intimately tied to Delta’s most important

     1
      Parise does not dispute that the reference to § 1984 was in
error and does not give rise to any cognizable claim.
     2
      The ADA provides, in relevant part:

           [A] State . . . may not enact or enforce a
           law, regulation or other provision having the
           force and effect of law related to a price,
           route, or service of an air carrier . . . .

49 U.S.C. § 41713(b)(1).

                                   3
          obligation . . . to provide safe and secure air
          transportation to the flying public.” Doc. 57 at
          9. Clearly, an airline’s decision to terminate a
          customer service agent on the grounds of
          passenger safety is “related to” the airline’s
          “services” and falls within the preemption
          clause of the ADA. Because the Florida Civil
          Rights Act would impact on Delta’s ability to
          provide a safe environment for its passengers,
          Parise’s claim is “related to” Delta’s “services”
          and is thus preempted by the ADA.

R2-59 at 5.

     On appeal, Parise argues that the relationship between the

event that, according to Delta, gave rise to his termination and the

services provided by the airline is too tenuous to justify a finding of

preemption. Alternately, Parise requests that if we find that the ADA

preempts his state law claim, we necessarily should convert this

claim to a federal cause of action under the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seq.



                          II. DISCUSSION




                                  4
     We review the district court’s order granting Delta’s motion to

dismiss for lack of subject matter jurisdiction de novo. See Babicz

v. School Bd. of Broward County, 135 F.3d 1420, 1422 (11th Cir.

1998) (per curiam). In doing so, we view the facts in the light most

favorable to the plaintiff. See Welch v. Laney, 57 F.3d 1004, 1008

(11th Cir. 1995).

     Whether a federal statute preempts state law is a question of

congressional intent. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246,

252, 114 S. Ct. 2239, 2243, 129 L. Ed. 2d 203 (1994).            The

Supreme Court has noted that Congress enacted the ADA “[t]o

ensure that the States would not undo federal deregulation with

regulation of their own . . .”. Morales v. Trans World Airlines, Inc.,

504 U.S. 374, 378, 112 S. Ct. 2031, 2034, 119 L. Ed. 2d 157 (1992).

Consistent with this assessment, the Court has found preemption

where the challenged state statute had a prohibitive effect on an

expressed concern set forth in the ADA. See, e.g., Morales, 504

U.S. at 390, 112 S. Ct. 2040 (fare advertising provisions under state

                                  5
law “would have a significant impact upon the airlines’ ability to

market their product, and hence a significant impact upon the fares

they charge.”). Conversely, the Court has rejected preemption

where no such effect was found to exist.        See, e.g., American

Airlines, Inc. v. Wolens, 513 U.S. 219, 228, 115 S. Ct. 817, 824, 130

L. Ed. 2d 715 (1995) (where plaintiffs in class action suit alleged

airlines violated state consumer protection laws, Court declined to

“read the ADA’s preemption clause . . . to shelter airlines from suits

alleging no violation of state-imposed obligations, but seeking

recovery solely for the airline’s alleged breach of its own, self-

imposed undertakings.”).

     Several presumptions necessarily guide our analysis of the

preemptive scope of a federal statute: First, preemption is

appropriate only if it is the clear and manifest purpose of Congress.

Hawaiian Airlines, 512 U.S. at 252, 114 S. Ct. at 2243 (quoting

Hillsborough County v. Automated Med. Lab., Inc., 471 U.S. 707,

715, 105 S. Ct. 2371, 2376, 85 L. Ed. 2d 714 (1985)). Second, the

                                  6
courts should not lightly infer preemption of actions within the

traditional police powers of a state. Id. For a law to be expressly

preempted by the ADA, a state must “enact or enforce a law that

relates to airline rates, routes, or services, either by expressly

referring to them or by having a significant economic effect upon

them.” See Travel All Over the World, Inc. v. Kingdom of Saudi

Arabia, 73 F.3d 1423, 1431 (7th Cir. 1996).

     As noted, the district court in this instance explicitly premised

its finding of preemption on the relationship between Parise’s

alleged violent outburst toward co-workers and the “service” of

safety that Delta is bound to provide. Although we are cognizant of

Delta’s compelling assertion that the threatening behavior in which

Parise allegedly engaged “relates to” the valid safety concerns of an

airline, we conclude that the district court erred in finding Parise’s

state age discrimination action to be preempted by the ADA.

Significantly, the issue of Parise’s allegedly inappropriate–and

potentially violent–conduct arises here in response to and as a

                                  7
defense to the claim presented in the complaint. Although the

complaint mentions the alleged threat as part of the factual

narrative leading up to Parise’s eventual termination, the

complaint sets forth a cause of action for age discrimination under

Florida law.   The statute pursuant to which Parise filed his

complaint provides that

          (1) It is an unlawful employment practice for
          an employer:

          (a) To discharge or to fail or refuse to hire
          any individual, or otherwise to discriminate
          against any individual with respect to
          compensation, terms, conditions, or privileges
          of employment, because of such individual’s
          race, color, religion, sex, national origin, age,
          handicap, or marital status.

Fla. Stat. § 760.10(1)(a). The only relevant question with respect

to preemption in light of Parise’s claim, then, is whether a cause

of action brought pursuant to Florida’s law prohibiting age

discrimination “relates to” rates, routes, or services of an air

carrier. Notably, Delta does not posit under the facts of this case


                                 8
the existence of a relationship between an airline’s decision to

terminate an employee on the basis of age and a concern for

airline safety; rather, it is Delta’s answer to the complaint that

appears to provide the asserted ground for preemption.            In

resolving the jurisdictional question potentially raised by a statute

such as the ADA, however, it is the cause of action and the

underlying state law on which it is founded that concerns us.3

     Similarly, the sole basis for the court’s finding of preemption

rests on Delta’s proffered justification for terminating Parise. This

justification, offered pursuant to the familiar burden-shifting

framework established in all employment discrimination cases of

this nature, is highly relevant to whether Parise can survive a

motion for summary judgment on the underlying merits of his


     3
      By way of illustration, if Parise had claimed that Delta
discriminated against him on the basis of a mental illness that
sometimes caused him to exhibit violent tendencies and had relied
on a state civil rights statute protecting emotionally disabled
individuals from termination due to their disability, Delta’s
argument in favor of preemption analytically would carry greater
weight; in other words, the basis of the cause of action–without
reference to the answer or any affirmative defense–conceivably
would conflict with the underlying purposes of the ADA and
therefore give rise to a finding of preemption.

                                 9
case. We believe that it is inappropriate, however, for the court

to credit the defendant’s proffered non-discriminatory justification

for its decision to terminate an employee and use that allegation

as a basis to find preemption, thereby potentially depriving the

plaintiff of any remedy under either federal or state law.4

     It is worth noting that the decisions relied on by both Delta

and the district court in support of preemption serve only to

confirm our view that preemption was not the appropriate vehicle

by which to resolve Parise’s claims at this stage of the

proceedings. In Belgard v. United Airlines, 857 P.2d 467 (Colo.

App. 1992), plaintiffs filed suit pursuant to a state law prohibiting

discrimination on the basis of disability and claimed that the airline

had discriminated against them because they had undergone eye

surgery.   In finding the state statute to be preempted, the


     4
      Of course, we express no opinion as to the underlying merits
of this case. On remand, the district court may--or may not--find
that Parise cannot show that the “safety concern” articulated by
Delta was a pretext for age discrimination. At this stage, our
sole concern is whether the district court properly may use Delta’s
explanation for its employment decision as a basis for a finding of
preemption.

                                 10
Colorado court determined that the physical capabilities of flight

personnel did “relate to” the services rendered by an airline. See

id. at 470-71. Similarly, in Fitzpatrick v. Simmons Airlines, Inc.,

555 N.W.2d 479 (Mich. Ct. App. 1996) (per curiam), app. denied,

570 N.W.2d 785 (Mich. 1997),         the plaintiff sued under a state

civil rights statute on the ground that the employer-airline had

discriminated against him because he failed to meet the height

and weight requirement. Adopting the reasoning advanced in

Belgard, the Michigan court found that height and weight

standards for employees did “relate to” the services of an air

carrier and, thus, the claims were preempted. Id. at 481. Both of

these state cases are markedly distinct from the cause of action

at issue here; in both Belgard and Fitzpatrick, the tension

identified by the courts between the plaintiff’s cause of action and

the federal interest derives from the state law on which the claim

is based, not from a subsidiary (though perhaps important) fact

presented by the defendants.         As previously mentioned, the

                                11
rationale for preemption that is articulated by Delta has no

connection to Florida’s statute prohibiting discrimination on the

basis of age; rather, the preemption argument is founded

exclusively on Delta’s proffered reason for having terminated

Parise.

     The district court also relied on both Aloha Islandair Inc. v.

Tseu, No. 94-00937, slip. op., (D. Hawai’i July 13, 1995) (Aloha

I) and Abdu-Brisson v. Delta Air Lines, Inc. 927 F. Supp. 109

(S.D.N.Y. 1996) (Abdu-Brisson I) as factually similar cases that

compel a finding of preemption. In Aloha I, the defendant-airline

had a policy of not hiring pilots with monocular vision.      The

plaintiff, an FAA-certified pilot with monocular vision, filed a

grievance with the state civil rights commission claiming that the

employer-airline had discriminated against him based on his

perceived disability. The district court, also relying on Belgard,

found that the state anti-discrimination statute was preempted by

the ADA. See id. at *1. Significantly, however, the Ninth Circuit

                                12
reversed the district court’s determination in Aloha I. See Aloha

Islandair, Inc. v. Tseu, 128 F.3d 1301 (9th Cir. 1997) (Aloha II). In

concluding that the pilot’s discrimination claim was not preempted

by the ADA, the court of appeals explicitly rejected the holding of

Belgard and observed:

          [W]e see no congressional purpose that
          would be served by denying to FAA-certified
          pilots, in the name of preemption, the
          protection of Hawaii’s law from employment
          discrimination based on physical disability.

Aloha II, 128 F.3d at 1303.

     Finally,   Abdu-Brisson    I     involved   a   series   of   age

discrimination claims against Delta that the district court found to

be preempted because they “related to” pricing and pilot staffing.

927 F. Supp. at 112. As in Aloha I, however, the Second Circuit

has since reversed the district court’s finding of preemption. See

Abdu Brisson v. Delta Air Lines, Inc., 128 F.3d 77 (2nd Cir. 1997)

(Abdu-Brisson II). In concluding that the plaintiffs’ claims did not

affect Delta’s services, the court of appeals expressly observed:

                                 13
          Delta is unable to establish that enforcing the
          city and state human rights laws in this case
          would frustrate the purpose of the ADA. . . .
          Although the policies behind the ADA are
          several, the primary motivation for the
          reform–as the name of the statute
          indicates–was to deregulate the industry. . . .
          Permitting full operation of New York’s age
          discrimination law will not affect competition
          between airlines–the primary concern
          underlying the ADA.

Abdu-Brisson II, 128 F.3d at 84 (citations omitted). In sum, we

find that the decisional law cited by the district court in support of

preemption is either inapposite or recently has been overruled.

As a result, these referenced decisions cannot guide our

resolution of the jurisdictional question before us.



                         III. CONCLUSION

     In this age discrimination action against Delta Air Lines filed

pursuant to state law, the district court found that the claims were

preempted by the ADA.        We conclude that the district court

improperly based its finding of preemption on Delta’s proffered

                                 14
justification for its employment decision rather than on the state

law claim set forth in the complaint. Accordingly, we REVERSE

the court’s finding of preemption and REMAND for further

proceedings consistent with this opinion.




                               15
