Summary
In White, the plaintiff alleged retaliatory discharge for having an accident and sustaining injuries, much like Plaintiff's claim here.
Summary of this case from Green v. Kansas City Southern Ry. Co.Opinion
CIVIL ACTION NO. 00-2886 SECTION: E/1
June 27, 2001
RULING ON MOTION
Defendant Kansas City Southern Railway Company ("KCS") has filed a motion to dismiss plaintiff's employment retaliation claims under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and in addition seeks to strike plaintiff's employment retaliation claims under Rule 12(f) on the grounds that they are "immaterial." Plaintiff Arthur White opposes the motion.
Plaintiff White filed a complaint against defendant KCS under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51, et seq, seeking damages for physical injury and suffering, mental pain and anguish, loss of wages, loss of future earnings and fringe benefits as a result of disability, diminished earning capacity, diminished labor market access, and past and future medical expenses. He does not seek reinstatement or back pay per se, but does seek lost wages and fringe benefits due to his inability to work. His complaint stated that he was employed by KCS as a conductor and that he was injured on March 11, 1999 when he was attempting to throw a switch which was out of alignment at the Marathon-Ashland petroleum facility in Reserve, Louisiana, and he strained his back and groin. He alleged that KCS failed to provide him with a reasonably safe place to work and with proper equipment with which to work. Among other allegations, plaintiff also alleged that he suffered emotional injury and mental pain and anguish as a direct result of defendant's negligent acts, and that KCS negligently or intentionally embarked on a calculated campaign to harass, to provoke, to unnerve and to upset plaintiff following his physical injury. Paragraph IX of plaintiff's complaint avers that "[f]ollowing plaintiff's injury of March 11, 1999, plaintiff was harassed, threatened and finally fired due to the accident and injuries."
Defendant moves to dismiss the plaintiff's harassment allegations on the ground that the FELA does not provide a cause of action for retaliatory discharge and that recourse to FELA employees for retaliatory discharge is limited to arbitration under the Railway Labor Act (RLA), 45 U.S.C. § 151, et seq. In support of this argument, defendant refers to Mayon v. Southern Pacific Transportation Co., 805 F.2d 1250 (5th Cir. 1986). The plaintiff in Mayon sustained back injuries while working as a railroad engineer for Southern Pacific, sued his employer under FELA, and won a jury verdict for $200,000. He then returned to work and was discharged by his employer after it paid the judgment on the grounds that his back injury negatively impacted his job performance. Mayon filed a second suit against Southern Pacific under the FELA and under Texas law, asserting claims for retaliatory discharge for filing an FELA claim and intentional infliction of emotional distress. 805 F.2d at 1251. He also pursued arbitration under the RLA and won reinstatement and back pay. Id. at 1252. The Fifth Circuit in Mayon held that the FELA provides no private cause of action for retaliatory discharge and its accompanying emotional distress and that plaintiff's sole remedy for his employment related claim was under the RLA. Id. at 1253. Defendant thus seeks dismissal of all damage claims arising out of its alleged employment-related harassment of plaintiff.
Plaintiff opposes the motion, distinguishing Mayon on its facts, noting that while plaintiff Mayon alleged retaliatory discharge for filing a FELA claim, plaintiff White here does not contend that he was fired for filing a FELA claim, but for having an accident and sustaining injuries. In the instant complaint, plaintiff White does not seek reinstatement, his FELA claim has not been adjudicated, and he alleges retaliatory discharge as a result of an accident and injuries he sustained because of an unsafe working condition allegedly condoned by the railroad.
In Atchison, Topeka and Santa Fe Railway Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410 (1987), the Supreme Court plainly stated that:
The fact that an injury otherwise compensable under the FELA was caused by conduct that may have been subject to arbitration under the RLA does not deprive an employee of his opportunity to bring an FELA action for damages. Presumably a host of personal injuries suffered by railroad employees are caused by negligent practices and conditions that might have been cured or avoided by the timely invocation of the grievance machinery. [Citation omitted]. But we have never considered that possibility a bar to an employee's bringing an FELA claim for personal injuries, and the Railroad has not persuaded us to do so now. . . .
It is inconceivable that Congress intended that a worker who suffered a disabling injury would be denied recovery under the FELA simply because he might also be able to process a narrow labor grievance under the RLA to a successful conclusion. As then District Judge J. Skelly Wright concluded, "the Railway Labor Act . . . has no application to a claim for damages to the employee resulting from the negligence of an employer railroad." Barnes v. Public Belt R.R. Comm'n for City of New York, 101 F. Supp. 200, 203 (E.D. La. 1951)107 S.Ct. at 1415. Under Buell, plaintiff White's claim for emotional damages which may be related to unsafe working conditions is not preempted by the RLA. 107 S.Ct. at 1416.
The Supreme Court has also held that the RLA does not preempt state law remedies for retaliatory discharge when adjudication of the plaintiff's retaliatory discharge claim "require [s] only the purely factual inquiry into any retaliatory motive of the employer," and does not depend on an interpretation of a Collective Bargaining Agreement (CBA). Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 262, 266, 114 S.Ct. 2239, 2249, 2251 (1994). The Court in Norris concluded that the state tort law wrongful discharge claims of an aircraft mechanic, whose employment in the airline industry was covered by the RLA, were not preempted by the RLA, adopting for application to preemption claims under the RLA the test set out in Lingle v. Norge Div. of Magic Chef. Inc., 486 U.S. 399, 108 S.Ct. 1877 (1984) for determining whether a state-law retaliatory discharge claim is preempted by the Labor Management Relations Act. 114 S.Ct. at 2249. Under Norris, a state law retaliatory discharge claim is not preempted by the RLA if resolution of the state law claim turns on purely factual questions, such as whether the employee was discharged or threatened with discharge and, if so, whether the employer's motive in such action was to deter the employee from exercising his rights under state law, and if the state law claim is not dependent upon an interpretation of the CBA. Norris, 114 S.Ct. at 2248-49.
Analogizing the FELA, 45 U.S.C. § 51, which provides redress to railroad workers for personal injuries suffered as a result of the railroad's negligence, to a state law tort scheme, the inquiry is whether the resolution of the plaintiff's wrongful discharge claim involves a purely factual inquiry as to the actions of the railroad and their animus, and whether resolution of such claim is dependent upon an interpretation of the CBA. Plaintiff's claim is not that he was fired in retaliation for filing an FELA suit, but that he was fired due to his accident and injuries. Whether or not this is the situation involves the same type of factual inquiry envisioned in Norris and does not involve an interpretation of the CBA, particularly since plaintiff is not seeking reinstatement or back pay for violation of the CBA, but only for such damages as are normally awarded in a personal injury action, i.e., physical pain and suffering, mental anguish and anxiety, loss of wages and benefits in the past and loss of earning capacity in the future, sustained as a result of the alleged negligence of the employer in causing his injury. As such, plaintiff's damage claims for wrongful discharge due to his accident and injury under the FELA are not preempted by the RLA.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of defendant Kansas City Southern Railway Company to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and to strike under Rule 12(f) be and is hereby DENIED.