TUCKER

v.

HAMILTON SUNDSTRAND CORP., INC.

ORDER ON DEFENDANT’S MOTION FOR FINAL SUMMARY ON PREEMPTION

HUCK, District Judge.

THIS CAUSE is before the Court on the Motion of Defendant, Hamilton Sundstrand Corporation, Inc., a division of United Technologies Corporation (“UTC”), for Final Summary Judgment (on the Issue of Preemption) [DE # 29] filed on May 8, 2008. In its Motion, UTC argues that Plaintiff, James E. Tucker’s (“Tucker”), state law whistleblower claim of is “related to a price, route, or service of an air carrier” and, thus, preempted by the federal Airline Deregulation Act (“ADA”), 49 U.S.C. § 41713. Further, UTC argues that summary judgment is appropriate because, under the ADA’s whistleblower provision, Tucker’s claim is time barred. The Court has reviewed the Motion, Response, and Reply, together with other pertinent portions of the record. In addition, on June 19, 2003, the parties were before the Court for oral argument on the Motion. For the reasons set forth below, the Court finds that Tucker’s claim is preempted and time barred. Accordingly, final summary judgment will be entered in favor of UTC.

I. BACKGROUND

UTC is a company that repairs aircraft parts for various airlines. UTC’s Miami Repair Center, where Tucker was employed, is a Federal Aviation Administration (“FAA”) certified repair station that overhauls and repairs generators for use in commercial and military aircrafts. The facility is comprised of two divisions: one division is dedicated to repairing sub-assemblies of the generator, called rotors, and the other division overhauls and repairs entire generators. Tucker was the supervisor of this second division, known as the “Overhaul and Repair Section.”

On August 30, 2002, Tucker was terminated from UTC. UTC told Tucker that his termination was due to his workplace misconduct. On September 26, 2003, Tucker filed his initial complaint alleging that he was terminated, in violation of the Florida Whistleblowers Act (“FWA”), Fla. Stat. § 448.102(1), (2002), for complaining about his employer’s violation of Federal Aviation Regulations. Specifically, during his employment, Tucker complained that UTC did not have the proper written procedures for “rewind” operations in the rotor repair division and that UTC was filling out the FAA Form 8130 incorrectly.

As to Tucker’s complaint about rewind procedures, according to his own testimony, if a rotor is not rewound properly, no electrical power would be supplied from that generator to the aircraft. While this would not prevent the plane from being able to fly — as aircrafts have more than one generator — “[the aircraft] would not *1362 push away from the gate, in most circumstances.” (Tucker’s Depo. at 72.) Tucker also testified that the issue about which he complained had an impact on air safety and could result in an interruption of the service of an aircraft. 1

(Id.) With regard to the FAA 8130 forms, Tucker concerns included UTC’s practice of listing part numbers for complete rotors on the 8130 Form, when in fact the part numbers were returned without rectifiers and stub shafts. Rectifies and stub shafts are key sub-parts that are required for the rotor to produce electricity in the generator. II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). An issue is “material” if it is a legal element of the claim under applicable substantive law which might affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Allen v. Tyson Foods, 121 F. 3d 642, 646 (11th Cir.1997). An issue is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Allen, Id. On a motion for summary judgment, the Court must view all the evidence and all factual inferences drawn therefrom in the light most favorable to the non-moving party, and determine whether that evidence could reasonably sustain a jury verdict. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Allen, 121 F. 3d at 646.

While the burden on the movant is great, the opposing party has a duty to present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 252,106 S.Ct. 2505. A mere “scintilla” of evidence in favor of the non-moving party, or evidence that is merely colorable or not significantly probative is not enough. Id.; see also Mayfield v. Patterson Pump Co., 101 F. 3d 1371, 1376 (11th Cir.1996) (con-clusory allegations and conjecture cannot be the basis for denying summary judgment).

III. DISCUSSION

In the instant Motion for Summary Judgment, UTC argues: (1) that the ADA preempts Tucker’s FWA claim; (2) that, as a result of preemption, the ADA’s Whis-tleblower Protection Program (“WPP”), 49 U.S.C. § 42121, provides the exclusive remedy for Tucker’s whistleblower claim; and (3) that, under the WPP, Tucker’s claim is time-barred because he failed to *1363 file a complaint with the Department of Labor within the prescribed time.

1. ADA Preemption

The FWA provides employees a cause of action against employers who wrongfully discharge them for “[d]isclos[ing], or threatening] to disclose, to any appropriate governmental agency, under oath, in writing, an activity, policy, or practice of the employer that is in violation of a law, rule, or regulation.” Fla. Stat. § 448.102(1), (2002).

The ADA’s preemption provision states that “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) (emphasis added). The United States Supreme Court has determined a two-prong test for ADA preemption over a state claim: (1) the claim must be related to prices, routes, or services of an air carrier; and (2) the claim must constitute an enactment or enforcement of state law. American Airlines v. Wolens, 513 U.S. 219, 226, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). The second prong of this test is fulfilled, as Tucker’s lawsuit arises under the FWA, which is an enactment of state law. As to the first prong, the parties agree that Tucker’s claim does not relate to either prices or routes of an air carrier. Consequently, the issue before the Court is whether UTC’s alleged violation of Federal Aviation Regulations is related to service of an air carrier. According to the Supreme Court, the phrase “related to” contained within the ADA’s preemption provisions should be given broad meaning. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 390, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (holding that state consumer protection laws prohibiting allegedly deceptive advertisements “relate to a price, route, or service of an air carrier” and thus are preempted by the ADA). To be “related to” under the ADA’s preemption provision, the laws do not have to actually prescribe rates, routes, or services, or be specifically addressed to the airline industry, or be inconsistent with federal law. Id. at 385, 112 S.Ct. 2031. The ADA preempts all state enforcement actions which have a “connection with or reference to airline ‘rates, routes, or services’ ”. Id. at 375, 112 S.Ct. 2031. As the Supreme Court instructs, the ADA even preempts state laws “that are consistent with the ADA’s substantive requirements ... even if the [state] law is not specifically designed to affect [the airline industry], or the effect is only indirect.” Id. at 386-87, 112 S.Ct. 2031.

In the context of state whistleblower claims, the ADA preempts claims arising under state whistleblower statutes provided the claims are “related to” prices, routes, or services of an air carrier. See, e.g., Botz v. Omni Air Int’l, 286 F. 3d 488, 491 (8th Cir.2002); Marlow v. AMR Services Corp., 870 F.Supp. 295, 298 (D.Haw.1994); Regner v. Northwest Airlines, Inc., 652 N.W. 2d 557 (Minn.App.2002). In Botz, an airline flight attendant was fired after refusing a flight assignment because she believed it violated a Federal Aviation Regulation. 286 F. 3d at 490. The regulation limited a flight attendant’s duty period to twenty hours. After being assigned a round-trip from Alaska to Japan, Botz objected, claiming it violated the duty period as provided by the regulation. Omni Air terminated Botz for refusing of the assignment and insubordination. The Eighth Circuit held that Botz’ state based whistle-blower claim was preempted. It reasoned that the state whistleblower statute “related to” air carrier service by authorizing an employee to refuse an assignment and protecting her when she does so. Id. at 495. The court dismissed Botz’s state whistle- *1364 blower claim, holding that her refusal to accept flight assignments interrupted and thus “related to” air service and, therefore, fell within the ADA. Id.

In Regner, an airline mechanic claimed he was terminated for filing reports of alleged air safety violations with the FAA. 652 N.W. 2d at 559. The court held that the claim was preempted because an aircraft mechanic can interrupt services by grounding an aircraft for mechanical violations. Id. at 562. Similarly, Tucker acknowledges that UTC’s violation of FAA regulations could result in interruption of an air carrier’s service — that is, a defective rotor could result in the generator not supplying power to the aircraft, resulting in the aircraft “not pushing away from the gate”. See, supra, Part I (citing Tucker’s Depo. at 72).

The Marlow case, is remarkably similar to the case at bar. In Marlow, the supervisor for a jet bridge maintenance company brought suit in state court alleging he was fired because of his raising safety concerns and in an attempt to prevent him from reporting purported safety violations in contravention of Hawaii’s state whistleblower statute. 870 F.Supp. at 297. The defendants moved to dismiss on grounds of ADA preemption. The plaintiff argued that because he was employed by a jet bridge maintenance company, and not the air carrier itself, his state whistleblower claims “were too tenuous, remote, or peripheral” to have preemptive effect. Id. at 298-299. The court rejected the distinction reasoning that “[j]et bridges are an integral part of air carrier services, no matter who maintains them.” Id. at 299. Accordingly, the court held that jet bridge maintenance had the necessary “connection with or reference to” air carrier service to result in ADA preemption of Marlow’s state whistleblower claims. Id. In the same respect, this Court finds that aircraft generator maintenance is sufficiently related to air carrier service that Tucker’s claims are also preempted.²