UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
______________
No. 92-5753
______________
SANDY DIANA HIRRAS,
Plaintiff-Appellant,
VERSUS
NATIONAL RAILROAD PASSENGER CORPORATION
d/b/a AMTRAK,
Defendant-Appellee.
__________________________________________________
Appeal from the United States District Court
for the Western District of Texas
__________________________________________________
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
(November 22, 1994)
Before POLITZ, Chief Judge, REAVLEY, and EMILIO M. GARZA, Circuit
Judges.
EMILIO M. GARZA, Circuit Judge:
This matter is on remand from the United States Supreme Court
for further consideration in light of Hawaiian Airlines, Inc. v.
Norris, ___ U.S. ___, 114 S. Ct. 2239, 129 L. Ed. 2d 203 (1994).1
In Hirras v. National Railroad Passenger Corp., 10 F.3d 1142 (5th
Cir.), vacated, ___ U.S. ___, 114 S. Ct. 2732, 129 L. Ed. 2d 855
(1994), we affirmed the district court's dismissal of Sandy Diana
1
See Hirras v. National R.R. Passengers Corp., ___ U.S. ___, 114 S.
Ct. 2732, 129 L. Ed. 2d 855 (1994).
Hirras' Title VII,2 state-law intentional infliction of emotional
distress, and state-law negligent infliction of emotional distress
claims. In light of the Court's recent decision in Hawaiian
Airlines, we now reverse the district court's rulings as to Hirras'
intentional infliction of emotional distress and Title VII claims.3
I
Hirras alleges that her employer, the National Railroad
Passenger Corporation ("Amtrak"), failed to provide her with a work
environment free of gender-based discrimination. She complains of
verbal abuse from co-workers and abusive telephone calls, notes,
and graffiti from anonymous sources. Amtrak contends that it
initiated a thorough, if unsuccessful, investigation of the
anonymous acts.
Hirras sued Amtrak in federal district court for Title VII
violations, and for negligent and intentional infliction of
emotional distress. The district court dismissed the state-law
negligent infliction of emotional distress claim on the grounds
that Texas does not recognize such a claim. The court further held
that Hirras' Title VII and state-law intentional infliction of
emotional distress claims were preempted by the Railway Labor Act
("RLA"), 45 U.S.C. § 151 (1988). Hirras appealed the district
court's dismissal of both her federal and state-law claims.
2
42 U.S.C. § 2000e (1988).
3
Texas does not recognize the tort of negligent infliction of
emotional distress. Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993). Thus, we do not
disturb the district court's dismissal of Hirras' negligent infliction of
emotional distress claim.
-2-
II
First, Hirras argues that the Supreme Court's decision in
Hawaiian Airlines supports her contention that her state-law claim
of intentional infliction of emotional distress is not preempted by
the mandatory arbitration provisions of the RLA. Hirras contends
that her intentional infliction of emotional distress claim is not
a "minor dispute" for the purposes of the RLA because it is
grounded in rights and obligations that exist independent of the
collective-bargaining agreement ("CBA") that governed the terms of
her employment.
Generally, all disputes growing out of "grievances" or out of
the interpretation or application of a CBA are preempted by the
RLA's mandatory arbitration provisions. See 45 U.S.C. § 151a. One
of the goals of the RLA is to "provide for the prompt and orderly
settlement of all disputes growing out of grievances or out of the
interpretation or application of agreements covering rates of pay,
rules, or working conditions." Id. Because such disputes concern
an existing CBA, they "seldom produce strikes" and are known as the
"minor disputes of the railway labor world." Elgin, J. & E. Ry.
Co. v. Burley, 325 U.S. 711, 723-24, 65 S. Ct. 1282, 1290, 89 L.
Ed. 1886 (1945), aff'd on reh'g, 327 U.S. 661, 66 S. Ct. 721, 90 L.
Ed. 928 (1946). Minor disputes are to be contrasted with "major
disputes," which "present the larger issues about which strikes
ordinarily arise" because they "seek to create rather than to
enforce contractual rights," see id., and with those disputes that
seek neither to create nor enforce the contractual rights created
-3-
by a CBA. Under the RLA, only minor disputes "may be referred by
petition of the parties or by either party to the appropriate
division of the [National Railroad] Adjustment Board" ("NRAB") for
arbitration. Id. (quoting 45 U.S.C. § 151a).
The language of § 151a thus limits the RLA's preemption of
claims, including state-law claims, to those involving the
interpretation or application of a CBA. Hawaiian Airlines, ___
U.S. ___, 114 S. Ct. 2239, 129 L. Ed. 2d 203 (1994). While § 151a
governs "disputes growing out of grievances or out of the
interpretation or application [of CBA's]," 45 U.S.C. § 151a
(emphasis added), the Supreme Court held in Hawaiian Airlines that
"the most natural reading of the term `grievances' in this context
is as a synonym for disputes involving the application or
interpretation of a CBA." Id., ___ U.S. at ___, 114 S. Ct. at
2245.4 This interpretation is consistent with previous Supreme
Court decisions. See, e.g., Consolidated Rail Corp. v. Railway
Labor Executives' Ass'n, 491 U.S. 299, 305, 109 S. Ct. 2477, 2482,
105 L. Ed. 2d 250 (1989) ("The distinguishing feature of [a minor
dispute] is that the dispute may be conclusively resolved by
interpreting the existing [CBA]"); Pittsburgh & Lake Erie R.R. Co.
4
In our previous opinion, we relied on a Supreme Court decision
containing contradictory language. In Elgin, Joliet & Eastern Railway Co. v.
Burley, 325 U.S. 711, 65 S. Ct. 1282, 89 L. Ed. 1886 (1945), the Court included
in the category of minor disputes those disputes "founded upon some incident of
the employment relationship, or asserted one, independent of those covered by the
collective bargaining agreement, e.g. claims on account of personal injury." Id.,
325 U.S. at 723, 65 S. Ct. at 1290. However, the Court in Hawaiian Airlines noted
that because the dispute in Burley did involve the interpretation of a CBA, any
references to disputes independent of a CBA were dicta. Hawaiian Airlines, ___
U.S. at ___, 114 S. Ct. at 2250. The Court went on to "expressly disavow any
language in Burley suggesting that minor disputes encompass state-law claims that
exist independent of the collective-bargaining agreement."
-4-
v. Railway Labor Executives' Ass'n, 491 U.S. 490, 501 n.12, 109 S.
Ct. 2584, 2592 n.12, 105 L. Ed. 2d 415 (1989) ("Minor disputes are
those involving the interpretation or application of existing
contracts").
The Court in Hawaiian Airlines noted that claims involving
only factual questions "about an employee's conduct or an
employer's conduct and motives" do not require an interpretation of
the CBA. Id., ___ U.S. at ___, 114 S. Ct at 2248. The Court cited
for support its decision in Lingle v. Norge Division of Magic Chef,
Inc., 486 U.S. 399, 108 S. Ct. 1877, 100 L. Ed. 2d 410 (1988), in
which it held that when the elements of a cause of action are
"purely factual questions" that pertain to "the conduct of the
employee and the conduct and motivation of the employer," no
interpretation of the CBA is necessary. Id., 486 U.S. at 407, 108
S. Ct. at 1882.5 Lingle involved a state-law claim of retaliatory
discharge, requiring the plaintiff to set forth the following
facts: "(1) he was discharged or threatened with discharge and (2)
the employer's motive in discharging or threatening to discharge
him was to deter him from exercising his rights under the Act or to
interfere with his exercise of those rights." Id. The Court
concluded that "neither element requires a court to interpret any
term of a collective-bargaining agreement. . . . Thus, the state-
5
Although Lingle involved the Labor Management Relations Act ("LMRA")
and not the RLA, the Court held that "th[e] convergence in the preemption
standards under the two statutes, [led it to] conclude that Lingle provides an
appropriate framework for addressing pre-emption under the RLA, and we adopt the
Lingle standard to resolve claims of RLA pre-emption." Hawaiian Airlines, ___
U.S. at ___, 114 S. Ct. at 2249.
-5-
law remedy in this case is `independent' of the collective-
bargaining agreement . . . : resolution of the state-law claim does
not require construing the collective-bargaining agreement." Id.
Thus, the Supreme Court held that "substantive protections
provided by state law, independent of whatever labor agreement
might govern, are not pre-empted under the RLA." Hawaiian
Airlines, ___ U.S. at ___, 114 S. Ct. at 2246. The Court noted
that state laws "have long regulated a great variety of conditions
in transportation and industry," a number of which might be the
subject of a dispute "which would have such an effect on interstate
commerce that federal agencies might be invoked to deal with some
phase of it." Id. at ___, 114 S. Ct. at 2246 (quoting Terminal
R.R. Ass'n v. Brotherhood of R.R. Trainmen, 318 U.S. 1, 6-7, 63 S.
Ct. 420, 423, 87 L. Ed. 571 (1943)). "But it cannot be said that
the minimum requirements laid down by state authority are all set
aside. We hold that the enactment by Congress of the [RLA] was not
a preemption of the field of regulating working conditions
themselves." Id. (quoting Terminal R.R. Ass'n, 318 U.S. at 7, 63
S. Ct. at 423).
The Court in Hawaiian Airlines discussed three examples of
state-law substantive protections that it considered to be
independent of any labor agreement for the purposes of the RLA. A
claim based on a state law prohibiting employers from firing
employees "in violation of public policy or in retaliation for
whistleblowing," does not require an interpretation of a CBA, and
-6-
thus is not preempted, id., ___ U.S. at ___, 114 S. Ct. at 2246,6
even if the CBA in question contained provisions that could be
interpreted to justify the termination, id at ___, 114 S. Ct. at
2251. Similarly, a claim based on a state law requiring cabooses
on all trains is not preempted by the RLA, even if the CBA required
cabooses only on some trains. See id. at ___, 114 S. Ct. at 2246
(citing Terminal R.R. Ass'n). Finally, a claim based on a state
law "regulating the number of workers required to operate certain
[railroad] equipment" is not preempted, see id. (citing Missouri
Pac. R.R. Co. v. Norwood, 283 U.S. 249, 51 S. Ct. 458, 75 L. Ed.
1010, modified on other grounds, 283 U.S. 809, 51 S.Ct. 652, 75 L.
Ed. 1428 (1931)), even if the railroad's agreement with the union
allows it to employ a smaller crew, id. at 254, 51 S. Ct. at 461.
The Court also provided an example of a case in which it held
that preemption by the RLA was justified. In Andrews v. Louisville
& N.R. Co., a railroad employee challenged his employer's decision
not to restore him to his regular duties after being injured in a
car accident. Id., 406 U.S. 320, 92 S. Ct. 1562, 32 L. Ed. 2d 95
(1972). The Court held that "a state law claim of wrongful
termination was pre-empted, not because the RLA broadly pre-empts
state law claims based on discharge or discipline," but because the
employee conceded that the "only source" of his right to be
reinstated after such an injury was the CBA. Hawaiian Airlines,
6
"The parties' obligation under the RLA to arbitrate disputes arising
out of the application or interpretation of the CBA [does] not relieve
petitioners of [their] duty" not to violate a state law against firing employees
in violation of public policy or in retaliation for whistleblowing. Hawaiian
Airlines, ___ U.S. at ___, 114 S. Ct at 2246.
-7-
___ U.S. at ___, 114 S. Ct. at 2246.
As these examples demonstrate, a claim is preempted by the RLA
only if it relies on a provision of the CBA; if the claim is
brought under state law without any reference to the CBA, then it
is not preempted. Thus, where an employer has a state-law
obligation "wholly apart from any provision of the CBA," claims
brought to enforce the state-law obligation are not preempted by
the RLA. Hawaiian Airlines, ___ U.S. at ___, 114 S. Ct. at 2247.
A state-law claim is independent "even if dispute resolution
pursuant to a collective-bargaining agreement, on the one hand, and
state law, on the other, would require addressing precisely the
same set of facts, as long as the state-law claim can be resolved
without interpreting the agreement itself . . . ." Id. at ___, 114
S. Ct. at 2249 (quoting Lingle, 486 U.S. at 408, 108 S. Ct. at
1883).
Hirras contends that her intentional infliction of emotional
distress claim does not rely on any provision of the CBA, and thus
its resolution does not require an interpretation of the CBA.
Amtrak, on the other hand, argues that we must interpret the CBA in
order to determine whether their handling of Hirras' complaints of
sexual harassment by her fellow employees was "outrageous."7 To
prove intentional infliction of emotional distress, Hirras must
7
Amtrak cites as support for its position the Sixth Circuit's holding
in a "post-Hawaiian Airlines" case involving LMRA preemption of an emotional
distress claim based on the manner in which an investigation of the plaintiff on
charges of sexual harassment was conducted. (Appellant's Br. at 6 (citing DeCoe
v. General Motors Corp., 32 F.3d 212 (6th Cir. 1994)). Although DeCoe was
decided a month after Hawaiian Airlines, the Sixth Circuit makes no reference to
the Supreme Court decision.
-8-
demonstrate that: "(1) the defendant acted intentionally or
recklessly, (2) the conduct was extreme and outrageous, (3) the
actions of the defendant caused the plaintiff emotional distress,
and (4) the emotional distress suffered by the plaintiff was
severe." Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993) (citing
Restatement (Second) of Torts § 46 (1965)). Amtrak contends that
whether its handling of Hirras' complaints of sexual harassment was
substandard to the point of outrageousness, a necessary finding,
turns on what standard they were expected to meet under the CBA.
However, this Circuit has unequivocally stated that "outrageous
conduct is that which `[goes] beyond all possible bounds of
decency, and [is] regarded as atrocious, and utterly intolerable in
a civilized community.'" See Daniels v. Equitable Life Assurance
Soc'y of U.S., No. 93-8547, 1994 WL 530155 (5th Cir. Oct. 17, 1994)
(quoting Restatement (Second) of Torts § 46, cmt. d). Therefore,
whether Amtrak's conduct was outrageous enough to support a finding
of intentional infliction of emotional distress does not depend on
the terms of the CBA. Because Hirras' intentional infliction of
emotional distress claim does not depend on an interpretation of
the CBA, it is independent of the CBA.
In similar cases, the Supreme Court has held that claims based
on emotional injury are not preempted by federal labor laws. In
Atchison, Topeka & Santa Fe Ry. Co. v. Buell, the Court considered
whether a railroad employee's claim under the Federal Employers'
-9-
Liability Act ("FELA")8 that he had experienced "emotional
suffering" from his employer's "failure `to provide [him] with a
safe place to work, including, but not limited to, having fellow
employees harass, threaten, [and] intimidate [him]'" was preempted
by the RLA. 480 U.S. 557, 559, 107 S. Ct. 1410, 1412, 94 L. Ed. 2d
563 (1987). The Court held that "[i]t 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."9
In Farmer v. United Brotherhood of Carpenters, Local 25, 430
U.S. 290, 97 S. Ct. 1056, 51 L. Ed. 2d 338 (1977), the Court held
that a state-law claim of intentional infliction of emotional
distress was not preempted by the LMRA10 because "the State has a
substantial interest in regulation of the conduct at issue and the
8
The Court in Hawaiian Airlines noted:
Buell, of course, involved possible RLA preclusion of a cause of
action arising out of a federal statute, while [Hawaiian Airlines]
involves RLA preemption of a cause of action arising out of state
law and existing entirely independent of the collective bargaining
agreement. That distinction does not rob Buell of its force in this
context. Principles of federalism demand no less caution in finding
that a federal statute preempts state law.
Hawaiian Airlines, ___ U.S. at ___ n.6, 114 S. Ct. at 2247 n.6 (citation
omitted).
9
Buell, 480 U.S. at 565, 107 S. Ct. at 1415 (noting that while there
are policy arguments for arbitration, "`different considerations apply where the
employee's claim is based on rights arising out of a statute designed to provide
minimum substantive guarantees to individual workers'" (quoting Barrentine v.
Arkansas-Best Freight System, Inc., 450 U.S. 728, 737, 101 S. Ct. 1437, 1442, 67
L. Ed. 2d 641 (1981)), quoted in Hawaiian Airlines, ___ U.S. at ___, 114 S. Ct.
at 2247.
10
The Supreme Court has held that preemption under the RLA is analogous
to preemption under the LMRA. See supra note 5.
-10-
State's interest is one that does not threaten undue interference
with the federal regulatory scheme." Id. at 302, 97 S. Ct. at 1064
("With respect to [plaintiff's] claims of intentional infliction of
emotional distress, we cannot conclude that Congress intended
exclusive jurisdiction to lie in the Board.").
Hirras' state-law claim of intentional infliction of emotional
distress does not require an interpretation of the CBA, and thus is
independent of the CBA. Therefore, we hold that this claim is not
preempted by the RLA's arbitration provisions.
III
Second, Hirras argues that the Supreme Court's decision in
Hawaiian Airlines v. Norris supports her contention that her Title
VII claim is not preempted by the mandatory arbitration provisions
of the RLA. Because Amtrak has waived its contention that this
claim must be arbitrated, we also reverse the district court's
dismissal of Hirras' Title VII claim.
IV
For the foregoing reasons, we REVERSE and REMAND to the
district court for consideration of Hirras' intentional infliction
of emotional distress and Title VII claims.
-11-