      Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are
      requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage,
      Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email corrections@akcourts.us.



                THE SUPREME COURT OF THE STATE OF ALASKA

HELEN A. LINGLEY,                                        )
                                                         )     Supreme Court No. S-15529
                         Appellant,                      )
                                                         )     Superior Court No. 1PE-12-00047 CI
      v.                                                 )
                                                         )     OPINION
ALASKA AIRLINES, INC. and                                )
DAN KANE,                                                )     No. 7104 – May 13, 2016
                                                         )
                         Appellees.                      )
                                                         )

               Appeal from the Superior Court of the State of Alaska, First
               Judicial District, Petersburg, William B. Carey, Judge.

               Appearances: Frederick W. Triem, Petersburg, for Appellant.
               Gregory S. Fisher and Elizabeth P. Hodes, Davis Wright
               Tremaine LLP, Anchorage, for Appellees.

               Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
               Bolger, Justices.

               BOLGER, Justice.

I.    INTRODUCTION
               A former airline employee sued her former employer for wrongful
termination without first attempting to arbitrate her claims under the provisions of a
collective bargaining agreement subject to the federal Railway Labor Act. The superior
court denied the employee leave to amend her complaint, concluding that her claims and
proposed claims were precluded by failure to exhaust contractual remedies and were
preempted by the Railway Labor Act. But the collective bargaining agreement does not
clearly and unmistakably waive the employee’s right to litigate her claims, a prerequisite
to finding her claims precluded. And a number of her proposed claims may have an
independent state law basis that does not depend on an interpretation of the collective
bargaining agreement; such claims would not be preempted by the Railway Labor Act.
Accordingly we reverse the superior court order denying leave to amend.
II.   FACTS AND PROCEEDINGS
             In February 2012 Alaska Airlines terminated Helen Lingley, a longtime
employee, for violating company rules and polices after she allegedly took earbuds from
a left-on-board box,1 made contradictory statements during the ensuing investigation, and
made discourteous comments about her coworkers. The terms and conditions of
Lingley’s employment were governed by a collective bargaining agreement negotiated
by Lingley’s union, the International Association of Machinists and Aerospace Workers,
pursuant to the federal Railway Labor Act (RLA).2 This agreement broadly incorporated
Alaska Airlines’ rules and policies and gave the company the right to change those rules
and policies at any time. Employees were required to be familiar with any changes.
             The agreement set forth a three-step process for grieving decisions that
resulted in the loss of pay, namely discharge and suspension. The first two steps
consisted of an “initial hearing” and a “secondary hearing,” each presided over by a
representative of Alaska Airlines; an employee could be represented by “the Local Shop
Steward and/or the Union General Chair or his/her designee.” The third step was an
appeal before the System Board of Adjustment, a three-member arbitration panel
consisting of “a Company member, a Union member[,] and a neutral referee.” During


      1
           Low-value items left behind by passengers were placed in a left-on-board
box; company rules and polices prohibited employees from taking these items.
      2
             45 U.S.C. §§ 151–188 (2012).

                                           -2-                                      7104

this final step, employees could be represented by “such person or persons as they may
choose and designate, in conformance with the constitution of the Union.”
             After receiving the discharge notice, Lingley initiated the grievance process
through her union. Over the next few months Alaska Airlines held two hearings in
which a union representative represented Lingley’s interests. Before each hearing,
Alaska Airlines offered Lingley a last-chance agreement which would have allowed
Lingley to remain employed if she admitted just cause existed for her discharge. Lingley
declined both offers.
             Following the initial and secondary hearings, the presiding company officer
issued written decisions denying Lingley’s grievance. The union then appealed the
grievance to the System Board of Adjustment for arbitration. But about three months
later, the union informed Lingley that “no appeal will be made and the case is now closed
in [its] files.” That same day the union sent a letter to the System Board of Adjustment
asking it to remove the matter from its docket. Nothing in the record suggests that
Lingley attempted to pursue arbitration on her own.
             About four months later, in December 2012, Lingley filed a complaint in
the superior court alleging wrongful termination and breach of the implied covenant of
good faith and fair dealing. The complaint named Alaska Airlines and Dan Kane, the
manager who signed her discharge notice, as defendants (collectively, “Alaska
Airlines”). That complaint apparently was not served. In April 2013, Lingley filed an
amended complaint again broadly alleging wrongful termination and breach of the
implied covenant of good faith and fair dealing.
             In response, Alaska Airlines moved to dismiss under Alaska Civil Rule
12(b)(1) for lack of subject matter jurisdiction. It argued that (1) the RLA preempted
Lingley’s claims and (2) the complaint was precluded by her failure to exhaust the
remedies available under the collective bargaining agreement. To support the motion,

                                           -3-                                      7104

Alaska Airlines attached several exhibits including the collective bargaining agreement,
various company rules and policies, Lingley’s grievance submission form, and
correspondence between the union and Alaska Airlines about the grievance.
             Lingley then moved for a stay pending discovery, arguing that she needed
information within Alaska Airlines’ exclusive control. As examples she cited the
exhibits attached to the motion to dismiss, internal memos and emails, her personnel file,
and information that would be obtained via Alaska Civil Rule 26(a) disclosures. Alaska
Airlines opposed, asserting that the jurisdictional facts that served as the basis for its
motion to dismiss were established and undisputed.
             Lingley then requested leave to file a second amended complaint. The
proposed amended complaint alleged five new claims: age discrimination, economic
discrimination, retaliation, whistleblowing, and retribution. Alaska Airlines opposed,
arguing that the claims were futile based on the same preemption and preclusion grounds
that applied to the first amended complaint.3 The superior court agreed and accordingly
denied leave to amend. The court also determined that, as Alaska Airlines had
contended, Lingley’s economic discrimination claim was legally deficient and thus futile
because economic status is not a protected class.4
             The superior court also denied Lingley’s motion for a discovery
continuance and dismissed Lingley’s first amended complaint under Civil Rule 12(b)(1),



      3
              Though leave to amend a complaint “shall be freely given when justice so
requires,” a court may deny leave to amend when the proposed claims would be futile.
Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562, 568-69 (Alaska 2015) (quoting Alaska
R. Civ. P. 15(a)).
      4
              Lingley’s economic discrimination claim alleged that Alaska Airlines
terminated her to replace her “with a younger and newer employee who would have little
or no seniority and thus could be paid at a lower level of compensation.”
                                           -4-                                      7104

concluding that the claims were preempted by the RLA.5 With respect to Lingley’s
discovery motion, the court determined that the jurisdictional facts were established and
undisputed; as such the court could consider the facts alleged in Alaska Airlines’ motion,
the affidavits, and the attached documentary evidence. The court further noted that
Lingley had access to all relevant facts and thus delaying the proceedings likely would
be of little benefit to Lingley and would risk prejudice to Alaska Airlines.
              Based on these decisions, Alaska Airlines moved for final judgment.
Lingley opposed, contending that the case was ongoing. She argued that the court had
yet to address several of her state law claims including those for defamation, intentional
infliction of emotional distress, prima facie tort, and spoliation of evidence. In response
the superior court issued an order clarifying that it had already disposed of all claims and
accordingly the litigation had concluded. It explained that the unresolved claims Lingley
cited had not been explicitly pled nor could they be inferred from her complaints.
              Alaska Airlines then filed a second motion to enter final judgment. Lingley
opposed, again citing the unresolved state law claims; three days later she moved for the
court to reconsider its clarifying order. The superior court denied Lingley’s motion for
reconsideration and entered final judgment for Alaska Airlines. Lingley appeals.
III.   STANDARD OF REVIEW
              The superior court denied Lingley leave to amend her complaint. We
generally “review the denial of a motion to amend a pleading for abuse of discretion.”6


       5
             In a footnote, the superior court noted that Alaska Airlines’ motion to
dismiss “could also be granted on the grounds that . . . Lingley failed to exhaust the
contractual remedies that were available to her under the [collective bargaining
agreement].”
       6
            Patterson, 347 P.3d at 568 (citing Krause v. Matanuska-Susitna Borough,
229 P.3d 168, 174 (Alaska 2010)).

                                            -5-                                       7104

A superior court abuses its discretion “when the decision on review is manifestly
unreasonable.”7 “It is within a trial court’s discretion,” however, “to deny such a motion
where amendment would be futile because it advances a claim or defense that is legally
insufficient on its face.”8 We use our independent judgment to determine whether such
an amendment would be legally insufficient.9 We may affirm the superior court on
independent grounds, but only when those grounds are established by the record.10
             The superior court also dismissed Lingley’s action for lack of subject matter
jurisdiction under Civil Rule 12(b)(1). “We review de novo a superior court’s decision
to dismiss a complaint for lack of subject matter jurisdiction.”11 In reviewing de novo
we exercise our independent judgment, adopting the rule of law most persuasive in light
of precedent, reason, and policy.12
             This appeal also requires us to interpret a collective bargaining agreement.
“Contract interpretation presents a question of law that we review de novo.”13 Our “goal



        7
            Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503, 508
(Alaska 2015) (citing Tufco, Inc. v. Pacific Envtl. Corp., 113 P.3d 668, 671 (Alaska
2005)).
        8
             Patterson, 347 P.3d at 568 (Alaska 2015) (quoting Krause, 229 P.3d at
174).
        9
             Id.
        10
             Seybert v. Alsworth, 367 P.3d 32, 36 (Alaska 2016).
        11
            Healy Lake Vill. v. Mt. McKinley Bank, 322 P.3d 866, 871 (Alaska 2014)
(quoting Ruckle v. Anchorage Sch. Dist., 85 P.3d 1030, 1033 (Alaska 2004)).
        12
             Id.
        13
             Larsen v. Municipality of Anchorage, 993 P.2d 428, 431 (Alaska 1999)
(citing Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116, 1119 (Alaska 1997)).

                                           -6-                                      7104

is to ‘give effect to the reasonable expectations of the parties.’ ”14 We discern the parties’
intent by looking “to the written contract as well as extrinsic evidence . . . at the time the
contract was made.”15 If there is conflicting extrinsic evidence, we, not a jury, must
“decide the question of meaning except where the written language, read in context, is
reasonably susceptible to both asserted meanings.”16
              Finally this appeal requires statutory interpretation, which is a question of
law.17 We decide questions of law using our independent judgment, adopting the “most
persuasive rule of law in light of precedent, reason, and policy.”18 When interpreting a
statute we consider its text, legislative history, and purpose.19
IV.	   DISCUSSION
       A.	    The Superior Court Abused Its Discretion When It Denied Lingley’s
              Motion To Amend Her Complaint.
              The superior court denied Lingley’s motion to amend her complaint,
concluding that the claims in the proposed amended complaint were futile because
Lingley did not exhaust her contractual remedies and because the RLA preempted many
of Lingley’s claims.



       14
              Id. (quoting Stepanov v. Homer Elec. Ass’n, 814 P.2d 731, 734 (Alaska
1991)).
       15
            Id. (quoting Municipality of Anchorage v. Gentile, 922 P.2d 248, 256
(Alaska 1996)).
       16
              Id. (quoting Johnson v. Schaub, 867 P.2d 812, 818 (Alaska 1994)).
       17
              Donahue v. Ledgends, Inc., 331 P.3d 342, 346 (Alaska 2014).
       18
              Id. (citing ASRC Energy Servs. Power & Commc’ns, LLC v. Golden Valley
Elec. Ass’n, 267 P.3d 1151, 1157 (Alaska 2011)).
       19	
              Id.

                                             -7-	                                       7104

              Leave to amend “shall be freely given when justice so requires.”20 But we
have recognized that denial of leave to amend might be justified given “undue delay, bad
faith or dilatory motive . . . [by] the movant, repeated failure to cure deficiencies by
amendments . . . , undue prejudice to the opposing party . . . , [or] futility of the
amendment, etc.”21 As noted above, we use our independent judgment in determining
whether an amendment would be legally insufficient.22
              1.	    Lingley’s motion to amend was timely and granting leave would
                     not cause apparent prejudice to Alaska Airlines.
              Alaska Airlines argues that allowing Lingley to litigate her claims would
cause the airline prejudice because it has a right to resolve the dispute “in the forum
mandated by Congress and selected by the parties’ collective bargaining agreement”; this
alternative forum, it contends, shields it from the time and expense of litigation. Lingley
argues that Alaska Airlines points only to “run-of-the-mill tasks of defending a . . .
lawsuit,” grounds that do not support finding undue prejudice. We agree.
              A superior court may deny leave to amend when allowing the amendment
would cause undue prejudice to the other party.23 But time and additional expense alone
do not support such a finding.24 “If the underlying facts or circumstances relied upon by


       20	
              Alaska R. Civ. P. 15(a).
       21
             Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562, 569 (Alaska 2015)
(quoting Miller v. Safeway, Inc., 102 P.3d 282, 294 (Alaska 2004)).
       22
              Id. at 568.
       23
              Id. at 569.
       24
             See Miller, 102 P.3d at 295 (“Given that the timeline for discovery was
extended after [the nonmoving party] received notice of [the movant’s] new claims, [the
nonmoving party] was not unreasonably burdened by the task of preparing for litigation
                                                                              (continued...)

                                           -8-	                                       7104

a plaintiff may be a proper subject of relief, [the plaintiff] ought to be afforded an
opportunity to test [the] claim on the merits.”25
                 Lingley moved to file a second amended complaint about two months after
she filed her first amended complaint. This motion was timely and nothing in the record
suggests that granting it would have caused Alaska Airlines undue prejudice. The court
had yet to set a trial date, and the discovery process had yet to begin. At this early stage,
the hardship caused by denying Lingley the opportunity to test the merits of her claims
outweighs any prejudice to Alaska Airlines.
                 2.	   Because the collective bargaining agreement did not clearly and
                       unmistakably waive Lingley’s right to litigate, the claims were
                       not subject to mandatory arbitration.
                 The superior court ruled that Lingley’s proposed claims were precluded by
her failure to exhaust administrative remedies. Though an employee may have the right
to pursue a claim in state court — because the claim is not preempted by the RLA — an
employee may waive the right to litigate the claim through her employment contract.26
Lingley contends that her employment contract (the collective bargaining agreement)
does not waive her right to pursue claims in state court.




(...continued)
of the new theories.”).
       25
                 Id. (alteration omitted) (quoting Foman v. Davis, 371 U.S. 178, 182
(1962)).
       26
             Bernard v. Alaska Airlines, Inc., 367 P.3d 1156, 1163-64 (Alaska 2016),
(citing Hammond v. State, Dep’t of Transp. & Pub. Facilities, 107 P.3d 871, 877 (Alaska
2005)) (discussing language in a collective bargaining agreement that is identical to that
in the agreement governing Lingley’s employment).

                                             -9-	                                      7104

             In Bernard v. Alaska Airlines, Inc. we recently considered a collective
bargaining agreement that is substantively the same as the one now before us.27 We held
that the agreement does not preclude litigation of an employee’s claims in state court
because the agreement does not clearly and unmistakably waive the employee’s right to
do so.28 That analysis, which we summarize below, applies equally here.
             A waiver must be “clear and unmistakable.”29 “We will not infer from a
general contractual provision that the parties intended to waive a statutorily protected
right unless the undertaking is ‘explicitly stated.’ ”30 To determine whether a waiver is
“clear and unmistakable,” we apply a two-part test: The contract must either (1) have
an arbitration clause with a provision through which “employees specifically agree to
submit all . . . causes of action arising out of their employment to arbitration” or
(2) explicitly incorporate the “statutory . . . requirements in addition to a broad and
general arbitration clause.”31
             The collective bargaining agreement, as we explained in Bernard,32 does
not satisfy either prong of this test. First, though the agreement appears to grant the
System Board of Adjustment broad jurisdiction over disputes between covered
employees and the company — authorizing the board to hear disputes “growing out of
grievances or out of interpretation or application of any of the terms of this

      27
             Id. at 1163-65.

      28
             Id. at 1165.

      29
             Id. at 1163 (emphasis in original) (quoting Metro. Edison Co. v. NLRB, 460

U.S. 693, 708 (1983)).
      30
             Id. (quoting Metro. Edison, 460 U.S. at 708).
      31
             Id. (quoting Hammond, 107 P.3d at 877).
      32
             Id. at 1163-65.

                                          -10-                                     7104

[a]greement” — the agreement also appears to limit the board’s authority. (Emphasis
added.) By its terms, the agreement only authorizes the board to hear “properly
submitted” disputes. To proceed to arbitration, the agreement narrowly defines “proper
submission”: “[T]he General Chair may appeal to arbitration within thirty . . . calendar
days.” (Emphasis added.) The agreement also narrowly defines the System Board of
Adjustment’s duties: “The Board shall consider any dispute properly submitted to it by
the General Chair of the Union or his/her designee, or by the Representative of the
Company”; “[n]o matter shall be considered by the Board which has not first been fully
processed in accordance with the grievance and appeal provisions of this [a]greement.”
(Emphases added.) The plain language of the agreement does not give an employee, like
Lingley, the right to independently submit her claims to arbitration; the agreement
recognizes only those appeals brought by the union or its representatives or by Alaska
Airlines.33 Because of this apparent foreclosure, the agreement fails the first prong of the
test for finding clear and unmistakable waiver of the right to pursue claims in state
court.34
              The collective bargaining agreement also fails the second prong of the test
because it did not explicitly incorporate Alaska Airlines’ protections against
discrimination, retaliation, and whistleblowing.35 The agreement broadly incorporates



       33
              As in Bernard, we do not decide whether irrespective of the language of the
collective bargaining agreement Lingley had an individual right to arbitrate her claims
when her union declined to do so. See id. at 1164.
       34
              Id. at 1163-64.
       35
              See id. at 1164-65. (“The collective bargaining agreement at issue here also
lacks the ‘explicit incorporation of the statutory anti-discrimination requirements’
necessary to the second prong of the Hammond test.” (quoting Hammond, 107 P.3d at
877)).

                                           -11-                                       7104

Alaska Airlines’ rules and policies. These policies include those that protect employees
from retaliation for airing good faith concerns about ethical or compliance issues,
harassment, and discrimination. The anti-discrimination provision provides:
             The Company is an equal opportunity employer. This means
             the Company is committed to providing equal consideration
             in all employment decisions (including, for example,
             recruiting, hiring, training, promotions, pay practices,
             benefits, disciplinary actions and terminations) without
             regard to age, race, color, gender, national origin, religion,
             marital status, sexual orientation, disability, veteran status or
             any other classification protected by federal, state, or local
             laws . . . .
             Acts of discrimination and harassment not only violate our
             Company values and policies, but may also violate federal,
             state, and local laws and are strictly prohibited.
(Emphasis added.) The anti-retaliation clause provides:
             The Company does not tolerate retaliation of any kind for
             raising concerns or making a report in good faith about an
             ethical or compliance issue. To be made in “good faith” does
             not mean you have to be right, however, it does mean you
             have to provide complete and accurate information and you
             have to have a reasonable belief that it may be true.
             Like Bernard, none of the incorporated provisions to which Alaska Airlines
directs us expressly cites Alaska law.36 And, most importantly, the collective bargaining
agreement grants Alaska Airlines the power to unilaterally modify its rules and polices
“during the term of the [a]greement.” Under such circumstances, it cannot be said that
an employee clearly and unmistakably waives her right to pursue state law claims in state




      36
             See id. at 1164-65.

                                           -12-                                    7104
court because to do so an employee must know what rights she is waiving.37 We thus
would reach the same conclusion even if the incorporated company rules and policies
explicitly cited Alaska law.38
             The superior court’s conclusion that Lingley’s proposed claims were barred
by her failure to exhaust contractual remedies was mistaken because the collective
bargaining agreement does not clearly and unmistakably waive her right to litigate those
claims.
             3.	    The RLA does not preempt claims that have an independent
                    state law basis and do not turn on the collective bargaining
                    agreement.
             The superior court ruled that many of Lingley’s claims were preempted by
the RLA and therefore were futile. The RLA provides a “mandatory arbitral mechanism
for ‘the prompt and orderly settlement’ of two classes of disputes”39: major disputes,
which relate to “the formation of collective [bargaining] agreements or efforts to secure




      37	
             Id.
      38
              Id. at 1165. (“[W]e 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.”).
      39
             Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994) (quoting
45 U.S.C. § 151a (1988)).

                                          -13-	                                    7104

them”;40 and minor disputes, which include “controversies over the meaning of an
existing collective bargaining agreement in a particular fact situation.”41 Claims that fall
into either category are preempted.42
              Alaska Airlines contends, as the superior court concluded, that many of
Lingley’s proposed claims are minor disputes that must be resolved through the
mechanisms provided by the RLA, including the collective bargaining agreement’s three­
step grievance process. But we conclude that Lingley’s claims may have an independent
state law basis and that, as so constructed, do not require us to interpret the collective
bargaining agreement. Such claims would not be preempted: The RLA “does not
pre-empt causes of action to enforce rights that are independent of the [collective
bargaining agreement].”43 “Pre-emption of employment standards ‘within the traditional
police power of the [s]tate’ ‘should not be lightly inferred.’ ”44
                     a.	    The age discrimination claim is not preempted because it
                            could be based on state statute.
              Alaska Airlines does not dispute the superior court’s conclusion that the
RLA does not preempt Lingley’s age discrimination claim. In the wrongful termination
context, a state law claim may be “pre-empted, not because the RLA broadly pre-empts
state-law claims based on discharge or discipline, but because the employee’s claim was

       40
            Id. (alteration in original) (quoting Consol. Rail Corp. v. Ry. Labor Execs.’
Ass’n, 491 U.S. 299, 302 (1989)).
       41	
             Id. at 253 (quoting Bhd. of R.R. Trainmen v. Chi. River &Ind. R.R. Co., 353
U.S. 30, 33 (1957)).
       42
              Id. at 252-53.
       43
              Id. at 256.
       44
              Id. at 252 (quoting Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21
(1987)).

                                           -14-	                                      7104

firmly rooted in a breach of the [collective bargaining agreement] itself.”45 By contrast,
when an employee’s right against wrongful termination derives from state law and does
not depend on an analysis or interpretation of the collective bargaining agreement, the
state law cause of action is not preempted.46 Such claims may turn on, for example, the
state law duty not to fire an employee for retaliatory reasons or in violation of other state
public policy.47
              Lingley’s age discrimination claimhas an independent state law basis under
AS 18.80.220, which prohibits an employer from discriminating against an employee
“because of the [employee’s] age.”48 This statute also prohibits discriminating against
an employee because of his or her sex,49 and we have held that the RLA does not
preempt a wrongful termination claim arising under this statute when the claim alleges
retaliation for reporting sexual harassment.50 The same is true with respect to Lingley’s


       45
            Id. at 257 (emphasis in original); Bernard v. Alaska Airlines, Inc., 367 P.3d
1156, 1160-61 (Alaska 2016).
       46
              Bernard, 367 P.3d at 1161-62 (citing Norcon, Inc. v. Kotowski, 971 P.2d
158, 164-66 (Alaska 1999)). Compare Norris, 512 U.S. at 257-58 (holding that a claim
is not preempted by the RLA when the collective bargaining agreement is “not the ‘only
source’ of [the employee’s] right not to be discharged wrongfully”), with Andrews v.
Louisville & Nashville R.R. Co., 406 U.S. 320, 324 (1972) (holding that a claim is
preempted by the RLA when the collective bargaining agreement is “the only source of
[the employee’s] right not to be discharged”).
       47
              Bernard, 367 P.3d at 1161-62; see also Norris, 512 U.S. at 266 (concluding
that a whistleblower claim based in state law was not preempted by the RLA).
       48
              AS 18.80.220(a)(1).
       49
            Id. Sexual harassment of employees constitutes discrimination on the basis
of sex. French v. Jadon, Inc., 911 P.2d 20, 28 (Alaska 1996).
       50
              Bernard, 367 P.3d at 1162.

                                            -15-                                       7104

age discrimination claim.       Like a claim for pretextual firing based on sexual
discrimination, Lingley’s age discrimination claim does not turn on an interpretation of
the collective bargaining agreement; it has an independent state law basis in
AS 18.80.220 and therefore is not preempted.
                     b.	    The retaliation, whistleblower, and retribution claims are
                            not preempted if they are construed as tort claims for
                            discharge in violation of public policy.
              The superior court concluded, and Alaska Airlines concedes, that the RLA
does not preempt Lingley’s retaliation claim if it “is construed as a tort claim for
wrongful discharge in violation of public policy.” But the superior court, like Alaska
Airlines, reached the opposite conclusion with respect to Lingley’s whistleblower and
retribution claims: Those claims, unlike the retaliation claim, arose from the collective
bargaining agreement and could not be considered independent of it.
              The RLA, as noted, does not preempt a wrongful termination claim when
the claim is rooted in state law rather than a collective bargaining agreement.51 This
category of claims may include those alleging violations of state law protections for
whistleblowers.52    Under Alaska law, a claim alleging wrongful termination for
whistleblowing may be actionable as an independent state law tort even when the alleged
misconduct “does not violate the letter of any . . . [statutory] law[].”53


       51	
              Norris, 512 U.S. at 257.
       52
              Id. at 266 (holding that claims that termination of employment violated
state law and public policy — claims which required only “purely factual inquiry into
any retaliatory motive of the employer” — were not preempted by the RLA).
       53
             Reust v. Alaska Petroleum Contractors, Inc., 127 P.3d 807, 812-13 & n.13
(Alaska 2005) (holding that a retaliation claim could be grounded in public policy tort);
see also Kinzel v. Discovery Drilling, Inc., 93 P.3d 427, 438 (Alaska 2004) (allowing tort
                                                                             (continued...)

                                           -16-	                                     7104

                  Lingley claims that Alaska Airlines retaliated against her for criticizing
management’s failure to follow company policies and for reporting company misconduct
and violations of federal law. These claims may be rooted in Alaska’s public policy that
protects employees who serve as whistleblowers from retaliation. So construed,
Lingley’s retaliation, whistleblower, and retribution claims would turn on state law rather
than the collective bargaining agreement.54 Further, though we have explained that
wrongful termination claims based on whistleblowing may “express[] a breach of
contract theory”55 and though Alaska Airlines’ polices (incorporated into the collective
bargaining agreement) explicitly protect employees who report misconduct in good faith,
this nexus with the agreement does not mean Lingley’s whistleblower and retribution
claims turn on an interpretation of that agreement. Rather we recognize, for the purpose
of RLA preemption, that a collective bargaining agreement cannot “alter[],
circumscribe[], or define[]” state law protections even when the agreement appears to
offer protections similar to those of state law.56 Therefore to the extent Lingley’s
retaliation, whistleblower, and retribution claims allege wrongful termination in violation




(...continued)

remedy to protect employee whistleblowers who file safety complaints).

        54
                  Reust, 127 P.3d at 812-13 & n.13; Kinzel, 93 P.3d at 438.
        55
                  Reed v. Municipality of Anchorage, 782 P.2d 1155, 1158 (Alaska 1989).
        56
              Bernard v. Alaska Airlines, Inc., 367 P.3d 1156, 1162 (quoting Norcon, Inc.
v. Kotowski, 971 P.2d 158, 167 (Alaska 1999)); see also id. at 1162 n.35 (“[T]he fact that
a claim involves a violation of a privately enforced policy is irrelevant to the extent that
a statute independently favors the same policy.”); Norcon, 971 P.2d at 167 (“The fact
that the ‘whistle blower’ claim in this case involved the violation of a privately enforced
safety policy, rather than violations of law, is irrelevant insofar as public policy favors
safe workplaces.”).

                                              -17-                                    7104

of state law or public policy, the claims are independent of the collective bargaining
agreement and not preempted by the RLA.
                     c.	    Whether the economic discrimination claim is preempted
                            depends on its construction.
              The superior court concluded that Lingley’s economic discrimination claim
was preempted because the claim arises only under the collective bargaining agreement
and thus was not an independent state law claim.
              Lingley contends that Alaska Airlines fired her because it “wanted to
replace [her], a fifteen-year veteran employee, . . . with a younger and newer employee
who would have little or no seniority and thus could be paid at a lower level of
compensation.” This claim has two possible constructions: First Lingley may be
alleging that Alaska Airlines breached the implied covenant of good faith and fair
dealing. This claim is preempted as the superior court concluded. An employer may
breach the implied covenant of good faith and fair dealing when it terminates an
employee to deprive her of compensation due under an employment contract.57
Lingley’s right to compensation, and the nature of that compensation, is firmly rooted
in her employment contract but not necessarily in state law. But Lingley’s economic
discrimination claim also may be alleging age discrimination. To the extent it does, the
claim is not preempted for the reasons explained above.58 Therefore, on remand, the
superior court should allow Lingley to raise and clarify the economic discrimination
claim as a claim for age discrimination.

       57
               See Mitford v. de Lasala, 666 P.2d 1000, 1007 (Alaska 1983) (“[G]ood
faith and fair dealing in this case would prohibit firing [the employee] for the purpose of
preventing him from [from obtaining compensation due under contract].”).
       58
               See supra IV.A.3.a. Alaska Statute 18.80.220(a) provides: “[I]t is unlawful
for . . . an employer . . . to discriminate against a person in compensation . . . because of
the person’s age . . . .”
                                            -18-	                                      7104

              4.	    Alternate grounds do not justify denying leave to amend.
                     a.	    The mere possibility of Federal Aviation Act and Airline
                            Deregulation Act preemption do not require us to affirm
                            on these alternate grounds.
              Alaska Airlines contends that Lingley’s whistleblower and retaliation
claims are preempted by the Federal Aviation Act of 1958 (FAA)59 and the Airline
Deregulation Act of 1978 (ADA)60 because the claims allege violations of federal law
or regulation related to air carrier safety. Lingley’s complaint, however, is not so
specific. She alleges only that Alaska Airlines terminated her because it suspected her
of “report[ing] the company’s misconduct and its violations of government rules to
federal officials” and “in retaliation for her perceived whistle-blowing . . . of reporting
the company’s violations of federal laws and regulations.” She does not explicitly claim
pretextual firing for reporting federal safety violations. And, to the extent such claims
can be inferred, neither the FAA nor the ADA necessarily preempts the claims.
              The FAA “empowered the Civil Aeronautics Board to regulate the interstate
airline industry,”61 including regulation of interstate airfares and action against certain
deceptive trade practices.62 Pursuant to this authority, the Civil Aeronautics Board has
regulated air carrier routes, rates, and services.63 The FAA does not, however, expressly



       59
             Pub. L. No. 85-726, 72 Stat. 731 (codified as amended in scattered sections
of 49 U.S.C.).
       60
              Pub. L. No. 95-504, 92 Stat. 1705 (codified as amended in scattered
sections of 49 U.S.C.).
       61
              Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422, 1428 (2014).
       62
              Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992).
       63
              Northwest, 134 S. Ct. at 1428.

                                           -19-	                                     7104

preempt state regulation.64 Rather it contains a saving provision that “preserv[es] pre­
existing statutory and common-law remedies.”65 Therefore “FAA ‘preemption, if any,
must be implied.’ ”66 Implied preemption is found when compliance with both federal
and state law would be impossible (conflict preemption) or when “Congress left no room
for the [s]tates” (field preemption).67
              The Ninth Circuit has concluded that the FAA preempts wrongful
termination claims based on whistleblowing when the claims interfere with the
“pervasively regulated” area of pilot qualifications and medical standards for airmen68
and thus indirectly challenge “aviation safety decisions under the guise of state law
whistleblower claims.”69 Claims that avoid such heavily regulated areas are not
preempted — this includes the employment field: “Congress has not occupied the field
of employment law in the aviation context[,] and . . . the FAA does not confer . . . the
exclusive power to regulate all employment matters involving airmen.”70 Here the mere



       64
              Morales, 504 U.S. at 378.
       65
              Northwest, 134 S. Ct. at 1428.
       66
             Ventress v. Japan Airlines, 747 F.3d 716, 720 (9th Cir. 2014) (quoting
Montalvo v. Spirit Airlines, 508 F.3d 464, 470 (9th Cir. 2007)).
       67
             Id. at 720-21 (quoting Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1023
(9th Cir. 2013)).
       68
              Id. at 721.
       69
              Id. at 722.
       70
              Id.; see also id. at 722-23 (“[W]e hold that federal law preempts state law
claims that encroach upon, supplement, or alter the federally occupied field of aviation
safety and present an obstacle to the accomplishment of Congress’s legislative goal to
create a single, uniform system of regulating that field.”).

                                          -20-                                     7104

possibility that the FAA might preempt Lingley’s broadly stated whistleblower and
retaliation claims does not justify denying leave to amend.
              Alaska Airlines also contends that the ADA preempts Lingley’s
whistleblower and retaliation claims given the ADA’s “broad preemptive purpose.” But,
like the FAA, the ADA does not necessarily reach so far. The ADA seeks to promote
“efficiency, innovation, and low prices”71 through “maximum reliance on competitive
market forces and on actual and potential competition.”72 In 2000, Congress amended
the ADA to add the Whistleblower Protection Program.73 This program prohibits an air
carrier from “discharg[ing] an employee or otherwise discriminat[ing] against an
employee with respect to compensation, terms, conditions, or privileges of employment
because the employee . . . provided . . . to the employer or Federal Government
information relating to any violation or alleged violation of any . . . [federal law or
regulation] relating to air carrier safety.”74 The program provides a detailed procedure
for addressing such grievances and authorizes the U.S. Department of Labor to grant
relief to the employee, including reinstatement and compensatory damages.75
              The ADA also contains a preemption provision that is designed to ensure
states do not “undo federal deregulation [of the airline industry] with regulation of their




       71
              49 U.S.C. § 40101(a)(12)(A) (2012).
       72
            Id. § 40101(a)(6); see also Dan’s City Used Cars, Inc. v. Pelkey, 133 S. Ct.
1769, 1775 (2013) (discussing the ADA’s aim).
       73
             Pub. L. No. 106-181, 114 Stat. 145 (2000) (codified as amended at
49 U.S.C. § 42121 (2012)).
       74
              49 U.S.C. § 42121(a).
       75
              Id. § 42121(b).

                                           -21-                                      7104

own.”76 The preemption provision provides: “States 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.”77 This provision has “broad pre-emptive purpose”; it
preempts claims that have “a connection with, or reference to, airline ‘rates, routes, or
services.’ ”78 But its preemptive reach is limited: As the U.S. Supreme Court explained,
“ ‘[s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a
manner’ to have pre-emptive effect.”79
              Noting this limitation, the Third and Eleventh Circuits have held that the
ADA does not preempt “simple employment discrimination claim[s] . . . [based on] [an
employee’s] undertaking of protected activity,” including, for example, claims alleging
retaliation for reporting safety violations.80 Such claims, these courts have explained, are
only incidentally “ ‘related to’ air carrier ‘services’ ”; “safety is not a basis on which
airlines compete for passengers”; and the Whistleblower Protection Program “simply
add[s] an additional remedy for plaintiffs seeking to advance a retaliatory [termination]
claim.”81


       76
            Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422, 1428 (2014) (quoting Morales
v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992)).
       77
              49 U.S.C. § 41713(b)(1) (emphasis added).
       78
              Northwest, 134 S. Ct. at 1428 (quoting Morales, 504 U.S. at 383-84).
       79
              Morales, 504 U.S. at 390 (alterations in original) (quoting Shaw v. Delta
Air Lines, Inc., 463 U.S. 85, 100 n.21 (1983)).
       80
             Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1259-60 (11th Cir. 2003);
see Gary v. Air Grp., Inc., 397 F.3d 183, 186-87, 189-90 (3d Cir. 2005).
       81
             Branche, 342 F.3d at 1260, 1264; see also Gary, 397 F.3d at 188-90. We
recognize that the circuits are split in this regard. The Eighth Circuit, for example, held
                                                                               (continued...)

                                           -22-                                        7104

                 Lingley’s broadly stated whistleblower and retaliation claims may
incidentally affect airline “efficiency, innovation, and low prices,”82 and the ADA’s
Whistleblower Protection Program may offer an avenue for redressing some of her
grievances.83 But given the limited scope of ADA preemption84 and the broadly stated
nature of Lingley’s claims, we conclude that the mere possibility of preemption under
the ADA does not require us to affirm on this alternate ground.
                       b.	    The age discrimination claim is not time barred if it is
                              based on state law.
                 Alaska Airlines contends that Lingley’s age discrimination claim is time
barred to the extent the claim is based on federal law. It notes that the federal Age
Discrimination in Employment Act of 1967 requires individuals alleging age
discrimination to first file a discrimination claim with the Equal Employment
Opportunity Commission within 300 days of the alleged wrongful act and then wait
60 days before bringing an action in court.85 While this is true, Lingley’s age




(...continued)
that the ADA preempted a flight attendant’s claim alleging retaliation for reporting
violations of laws related to working conditions. Botz v. Omni Air Int’l, 286 F.3d 488,
498 (8th Cir. 2002). The court cited the ADA’s broad preemptive purpose, the claim’s
incidental threat to airline services, and the Whistleblower Protection Program’s
comprehensive procedure for addressing grievances, which “furthered [Congress’s] goal
of ensuring . . . the price, availability, and efficiency of air transportation.” Id. at 494-98.
       82
                 See 49 U.S.C. § 40101(a)(12)(A).
       83
                 See id. § 42121; Gary, 397 F.3d at 188-89; Branche, 342 F.3d at 1263-64.
       84
                 See Morales, 504 U.S. at 390.
       85
                 See 29 U.S.C. § 626(d)(1) (2012); 29 C.F.R. § 1626.7(a) (2016).

                                             -23-	                                        7104

discrimination claim has an independent basis in state law under AS 18.80.220.86 To the
extent Lingley’s age discrimination claim is based on state law, the claim is not time
barred.87
       B.	    The Superior Court Did Not Err In Dismissing Lingley’s First
              Amended Complaint.
              Lingley’s first amended complaint alleged wrongful termination and breach
of the duty of good faith and fair dealing but did not cite or suggest an independent state
law basis for the claims. Accordingly the superior court concluded that the RLA
preempted the claims because they were rooted in the collective bargaining agreement.
We agree.
              In Bernard v. Alaska Airlines, Inc. and Norcon, Inc. v. Kotowski, we
distinguished between claims that depend solely on the parties’ contractual relationship
and claims that allege pretextual termination based on retaliation and depend in part on
the contractual relationship.88 The former claims (those based solely on the contract) are




       86	
              See supra IV.A.3.a.
       87
              Age discrimination claims under AS 18.80.220 must be brought within two
years of the offending conduct. AS 09.10.070(a).
       88
              Bernard v. Alaska Airlines, Inc., 367 P.3d 1156, 1160-62 (Alaska 2016);
Norcon, Inc. v. Kotowski, 971 P.2d 158, 165-68 (Alaska 1999) (holding that state law
claims are not preempted when they are “neither founded on rights created by a
[collective bargaining agreement] nor dependent on the analysis or interpretation of the
[collective bargaining agreement]”). Norcon involved the Labor Management Relations
Act (LMRA) rather than the RLA, but like the U.S. Supreme Court, we apply the same
preemption analysis to both. See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260
(1994) (stating that the RLA preemption standard “is virtually identical to the pre­
emption standard the Court employs in cases involving . . . the LMRA”).
                                           -24-	                                     7104

preempted but the latter claims generally are not.89 As we explained, a collective
bargaining agreement cannot “alter[], circumscribe[], or define[]” matters grounded in
the state’s public policy, such as the right to report safety violations or the right to work
in an environment free of sexual harassment.90 Because the bargaining process does not
define such rights, their contours can be traced without any reference to the agreement.91
              Lingley’s first amended complaint alleges that Alaska Airlines refused to
reinstate her, did not adequately notify her about the discharge proceedings, and failed
to provide a neutral forum in which to address her grievances. Unlike the claims in the
second amended complaint, these claims are not independent claims based on pretext or
retaliation. Instead they are wrongful termination claims defined by the collective
bargaining agreement — the only source of Lingley’s right to for-cause termination. As
such the RLA preempts the claims in the first amended complaint.92 However to the




       89
              Bernard, 367 P.3d at 1160-62; Norcon, 971 P.2d at 166-68.
       90
              Bernard, 367 P.3d at 1162 (quoting Norcon, 971 P.2d at 167).
       91
              Id.
       92
             See Norris, 512 U.S. at 257-58 (quoting Andrews v. Louisville & Nashville
R.R. Co., 406 U.S. 320, 324 (1972)); Bernard at 1160-61. In a footnote, the superior
court also concluded that the claims were precluded because Lingley failed to exhaust
the remedies available under the collective bargaining agreement. For the reasons
explained above, we disagree. See supra IV.A.2.
                                            -25-                                       7104

extent the first amended complaint alleges a claim for defamation,93 that claim, as we
explain below, can be revived by a motion to amend subject to the superior court’s usual
exercise of discretion.94
       C.	    Though A Number Of Lingley’s Claims Were Not Timely, Lingley
              Should Be Allowed To Raise Those Claims On Remand Subject To
              The Superior Court’s Usual Exercise Of Discretion.
              Alaska Airlines and Lingley dispute whether Lingley timely alleged claims
for intentional infliction of emotional distress, defamation, spoliation of evidence, and
prima facie tort. Under Alaska Civil Rule 8, “pleadings are to be liberally construed,
with the goal being to achieve substantial justice.”95 However a plaintiff still must “set
forth allegations of fact consistent with some enforceable cause of action on any possible
theory”96 because a defendant must have “fair notice of the claim and the grounds upon
which [the complaint] rests.”97



       93
             Lingley’s first amended complaint seeks damages for “loss of reputation
and for the emotional distress and humiliation that she has suffered on account of the
defendants’ misconduct.”
       94
             Because we hold that the superior court should have granted leave to
amend, we do not address Lingley’s argument that the superior court erred when it
denied her motion for a stay pending discovery. On remand Lingley likely will have
opportunity for discovery.
       95
            Lum v. Koles, 314 P.3d 546, 557 (Alaska 2013) (alteration omitted)
(quoting Gamble v. Northstore P’ship, 907 P.2d 477, 482 (Alaska 1995)).
       96
              Alaska Commercial Fishermen’s Mem’l in Juneau v. City & Borough of
Juneau, 357 P.3d 1172, 1178 n.25 (Alaska 2015) (quoting State, Dep’t of Health & Soc.
Servs., Div. of Family & Youth Servs. v. Native Vill. of Curyung, 151 P.3d 388, 396
(Alaska 2006)).
       97
              Id. at 1178 (quoting Valdez Fisheries Dev. Ass’n, Inc. v. Alyeska Pipeline
Serv. Co., 45 P.3d 657, 673 (Alaska 2002)).

                                          -26-	                                     7104

             Lingley did not timely allege claims for intentional infliction of emotional
distress, defamation, spoliation of evidence, or prima facie tort. As the superior court
concluded, these claims cannot be inferred from either of Lingley’s complaints. Rather
she first raised the claims in her opposition to Alaska Airlines’ proposed final judgment,
after the superior court had already dismissed Lingley’s complaints. Neither the first
amended nor proposed second amended complaint alleges, for example, that Lingley
suffered severe emotional distress or contends that Alaska Airlines engaged in
outrageous conduct — elements necessary to a claim for intentional infliction of
emotional distress.98 Lingley’s complaints also do not claim that Alaska Airlines
negligently published a false, defamatory statement about her, as required for
defamation.99 And nothing in either complaint suggests that Alaska Airlines mishandled
evidence in a manner that might give rise to a tort claim for spoliation of evidence;
indeed, neither complaint even mentions access to evidence.
             The superior court properly disregarded these claims that were never timely
alleged. In the previous section, however, we suggested that Lingley should be allowed
to amend her complaint to clarify whether she intended to include a claim for defamation.
Subject to the superior court’s usual exercise of discretion in setting and enforcing
pretrial deadlines,100 Lingley should also be allowed to amend her complaint to state the
claims raised in her opposition to the proposed final judgment.



      98
             See Beard v. Baum, 796 P.2d 1344, 1350 (Alaska 1990) (requiring a higher
pleading standard for claims of intentional infliction of emotional distress).
      99
             See DeNardo v. Bax, 147 P.3d 672, 678 (Alaska 2006).
      100
            Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562, 568 (Alaska 2015) (“We
review the denial of a motion to amend a pleading for abuse of discretion.”) (citing
Krause v. Matanuska-Susitna Borough, 229 P.3d 168, 174 (Alaska 2010)).
                                          -27-                                      7104

V.    CONCLUSION
              We AFFIRM the superior court order dismissing Lingley’s first amended
complaint. We REVERSE the order denying leave to amend and REMAND Lingley’s
claims for age discrimination, economic discrimination, retaliation, whistle blowing, and
retribution. Consistent with this opinion, Lingley should be allowed to amend her
complaint to raise additional claims subject to the superior court’s usual exercise of
discretion.




                                          -28-                                     7104

