On Appeal from the United States District Court for the District of New Jersey. Civil Action No. 02-2589. District Judge: Honorable Katherine S. Hayden.
Before: Nygaard and Garth, Circuit Judges, and POLLAK*fn1, District Judge
The opinion of the court was delivered by: Garth, Circuit Judge:
Submitted Under Third Circuit L.A.R. 34.1(a) December 16, 2004
Appellant Ray Gary ("Gary"), a New Jersey resident, brought an action against Appellee The Air Group, Inc. ("The Air Group"), a California corporation, alleging a violation of New Jersey's Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq. ("CEPA"). The District Court, holding that Gary's state law whistleblower claim was preempted by the federal Airline Deregulation Act, 49 U.S.C. § 41713 ("ADA"), as amended by the Whistleblower Protection Program, 49 U.S.C. § 42121 ("WPP"), dismissed Gary's action pursuant to Federal Rule of Civil Procedure 12(b)(6). After considering Gary's appeal, we will reverse.
The facts of this case are largely undisputed. From March 15, 2001 through August 30, 3001, Ray Gary was employed by The Air Group as a co-pilot for the "Cessna Citation," a small private aircraft. In July 2001, The Air Group hired James O'Neal Johnson, Jr. as pilot-in-command for the Cessna Citation.
Gary spent four days assisting Johnson with preparations for a Federal Aviation Administration ("FAA") required "route check." After spending that time with Johnson, Gary alleges that he believed Johnson was unqualified to pilot an aircraft because he: (1) did not have the requisite jet time mandated by the FAA, (2) was unfamiliar with FAA mandated basic flight procedures, (3) did not properly proceed with the FAA mandated "Pre-Flight Checklist," a safety measure, (4) was unfamiliar with the airspace into which he was planning to fly, and (5) was unfamiliar with how to obtain departure clearance at certain airports.
Based on the foregoing, Gary alleges that he reasonably believed that if The Air Group permitted Johnson to fly and/or if he did so, Johnson would be endangering himself, passengers, crew, the public and the aircraft. Gary also alleges he believed Johnson had violated and/or would violate FAA regulations.
On August 30, 2001, Gary called his supervisor, Dennis Turville, to express his concerns. Gary told Turville that Johnson was "ill-prepared, lacked ability, lacked the proper credentials, lacked the required experience, was unsafe and unqualified to pilot a commercial charter plane." A few hours later, The Air Group terminated Gary. Gary alleges that The Air Group fired him in retaliation for, among other things, his report of Johnson's lack of qualifications as well as Johnson's past and potential future FAA violations.
On April 29, 2002, Gary filed a complaint in the Superior Court of New Jersey alleging that his termination was in violation of New Jersey's Conscientious Employee Protection Act ("CEPA"), a state whistleblower statute.*fn2
On May 29, 2002, The Air Group removed the case to the District of New Jersey pursuant to 28 U.S.C. § 1441. It then moved to dismiss Gary's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that his state law whistleblower claim was preempted by federal law, specifically ...