Page:Alaska Airlines v. Judy Schurke - Panel Opinion.pdf/38

38 which the employee argued her male coworkers were favored. Id. We explained that the hostile work environment claim was not preempted at Burnside’s second step because "[t]he correct interpretation of the CBA . . . [was] purely peripheral to the relevant question with respect to assigning work." Id. at 1134–35.

In Masserant’s case, the key provisions of the CBA are also wholly undisputed and do not require interpretation. As of May 2011, when her child was ill, Masserant had an accrued paid vacation scheduled for December. The CBA permits vacation leave to be used at unscheduled times in certain circumstances, but does not address whether vacation leave may be used for an absence due to a flight attendant’s own illness or a child’s illness. Because "[t]here is nothing in the. . . CBA to interpret," the WFCA’s state-law right is not substantially dependent on the CBA. See Kobold, 832 F.3d at 1040.

The majority concludes that because Masserant refers to the CBA’s leave provision to argue that it violates the WFCA, some "analysis" is required. But it does not explain why the CBA must be consulted, much less analyzed. On this record, I conclude that Masserant’s claim does not "substantially depend" on analysis of the CBA, and that it is not preempted under the second prong of Burnside.

There is persuasive force to Alaska’s argument that "crew absences present unique concerns in the airline industry," because "without the requisite number of flight attendants on board, a plane cannot take off." But the limited question before this panel is the proper forum for resolving the important underlying questions raised by Masserant’s claim. I would hold only that the district court correctly concluded