Opinion
Cival Action No. 01-029, Section "K" (4)
July 9, 2001.
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment filed by Stephanie Stamp ("Stamp") and National Railroad Passenger Corporation ("Amtrak"). The Court has reviewed the memoranda, exhibits, pleadings and the relevant law and finds that the claims stated are not preempted by the Railroad Labor Act; however, the claim against Amtrak has no merit. As such, judgment in favor of Amtrak will be entered. In so doing, the sole basis for federal jurisdiction will have been eliminated, and pursuant to 28 U.S.C. § 1367 (c), the Court remands the remaining state law claims against Stephanie Stamp.
Background
Plaintiff was a conductor for Amtrak and as such, a member of the United Transportation Union ("UTU"). Pursuant to a collective bargaining agreement, he is subject to the rules and procedures set forth therein. Stamp, a co-employee, complained on April 5, 2000, to Joel Magee, chief of onboard service and Charisse Cotton, Stamp's immediate supervisor, that she was being sexually harassed by plaintiff As a result, a written Incident Report was filed by Stamp on April 6, 2000; Amtrak's Dispute Resolution Office's division manager conducted an investigation. Formal hearings were had with a hearing officer issuing a decision on July 27, 2000, finding that all charges were proven. As a result Lozano was discharged on July 27, 2000.
On October 30, 2000, the subject suit was brought in state court. Plaintiff contends that as a result of Stamp's statements, Lozano suffered "damages of injury to personal and professional reputation and standing in his community, personal humihation, embarrassment, mental anguish, severe emotional distress, anxiety, loss of consortium; loss of employment; loss of wages, loss of employment benefits and loss of retirement benefits." In addition, he contends that Stamp desired to inflict severe emotional distress upon Lozano. (Petition, ¶¶ 8 9). The sole and proximate cause alleged for plaintiff's injuries was the "intentional false statements and accusations made by Stamp against Lozano and all other acts which may be determined between now and the time of trial and shown at the time of trial." (Amended Petition, ¶ 10). Lozano brings suit against Amtrak based on the alleged vicarious liability as Stamp's employer for Stamp's actions. Lozano avers that as a result of the alleged defamation and intentional infliction of emotional distress, he is entitled to, inter alia, "loss of past, present and future income and benefits as a result of the statements made by Stamp resulting in Lozano's termination of employment." (Petition, ¶ 12).
Amtrak was served on December 14, 2000, and Stamp was served on December 18, 2000. The case was removed by Amtrak on January 1, 2001 pursuant to federal question jurisdiction. 28 U.S.C. § 1441. The subject motion was filed on February 28, 2001.
Standard for Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Stults v. Conoco, 76 F.3d 651, 656, (5th Cir. 1996), (citingSkotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir. 1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (emphasis supplied); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). Finally, the court notes that the substantive law determines materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court now turns to the merits of the arguments with these standards in mind.
Preemption under the Railway Labor Act
The Railway Labor Act ("RLA"), 45 U.S.C. § 151, et seq., governs collective bargaining agreements in the railroad industry such as the one involved herein. As noted by the Supreme Court, the RLA "sets up a mandatory arbitral mechanism to handle disputes "growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions,' 45 U.S.C. § 153 First (i)." Hawaiian Airlines, Inc. v. Norris, 114 S.Ct. 2289, 2241 (1994).
Congress' purpose in passing the RLA was to promote stability in labor-management relations by providing a comprehensive framework for resolving labor disputes. . . . To realize this goal, the RLA establishes a mandatory arbitral mechanism for "the prompt and orderly settlement" of two classes os disputes. 45 U.S.C. § 151a. The first class, those concerning "rates of pay, rules or working conditions," . . . are deemed "major disputes." Major disputes relate to ""the formation of collective [bargaining] agreements or efforts to secure them."'.. . The second class of disputes, known as "minor" disputes, "gro[w] out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions." ... Minor disputes involve "controversies over the meaning of an existing collective bargaining agreement in a particular fact situation." Thus, "major disputes seek to create contractual rights, minor disputes to enforce them." .Id. at 2243-44 (citations omitted). The Fifth Circuit has recognized that disputes arising out of grievances or out of the interpretation or application of a CBA are generally preempted by the RLA's mandatory arbitration provisions. Kollar v. United Trans. Union, 83 F.3d 124, 125 (5th Cir. 1996) citing Hirras v. National R.R. Passenger Corp., 44 F.3d 278, 280-81 (5th Cir. 1995).
The preemptive power of the RLA extends to state-law claims; however, not every state-law claim is automatically preempted. Following the Supreme Court's recent opinion in Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994), this Circuit holds that "a claim is preempted by the RLA only if it relies on the interpretation of a provision of the CBA; if the claim is brought under state law without any reference to the CBA, then it is not preempted." Id. at 282.Id. at 125-26. Thus, the issue before the Court with respect to defendant's preemption argument is whether the plaintiff's claim for defamation and intentional infliction of emotional distress involves an interpretation of the CBA. "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....'" Hirras, 44 F.3d at 282 citing Hawaiian Airlines 114 S.Ct. at 2249.
The Court notes that neither plaintiff nor defendants cited to the Court either 5th Circuit decision interpreting Hawaiian Airlines. This failure is disappointing considering the clear mandate that these cases provided.
In the case at bar, defendants have not pointed to any specific provision of the CBA that must be interpreted in resolving Lozano's claims. Souileau v. Southwest Airlines Co., 1999 WL 1140883, *5 (ND. Tex. Dec. 13, 1999). The Court has independently reviewed the entirety of the CBA and again neither the defamation claim nor the intentional infliction of emotional distress claims would require an interpretation of the CBA. The defendants contend that if "the action is based on a matrix of facts that are inextricably intertwined with the grievance machinery of the collective bargaining agreement and of the RLA, exclusive jurisdiction of the NRAB preempts the action." Henegar v. Banta, 27 F.3d 223, 225 (6th Cir. 1994). However, the Fifth Circuit has made it clear that a review of the same underlying facts in the context of a dispute under the CBA and an independent state action that does not entail an interpretation of the CAB to determine the state action does not result in the state action being preempted. Hirras, 44 F.3d at 282. Most, if not all of those cases, where a defamation claim was considered preempted, pre-date Hawaiian Airlines. In light of Hirras and Kollar, the Court is constrained to find that this matter is not preempted.
Defendants have argued that this case is in reality a suit for wrongful termination. It could be argued that plaintiff has artfully pleaded a defamation claim and a claim for intentional infliction of emotional distress, when in reality, at its core, this suit deals with the termination of plaintiff and the recovery of past, present and future income and benefits. At best, if this were the case, Rule 25 of the CBA (Defendant's Exh. 5, at 26-30) might be implicated. Under the Discipline provisions of the CBA, where a major offense has been committed, which includes by definition "disorderly or immoral conduct," dismissal without a probationary period is provided. There is an elaborate scheme for the adjudication of disciplinary actions and appeals therefrom, which plaintiff has invoked and is in the process of adjudicating. At least one court has found that such communications such as those which form the basis for the instant defamation claim were "necessary for the proper functioning of the grievance process." As such, they were be considered an "intrinsic part of the grievance process and therefore privileged under the RLA and preempted by federal law." See Cimi v. National Railroad Passenger Corp. (Amtrak), United States District Court for the Eastern District of Pennsylvania, C.A. No. 99-2630 (June 18, 2001).
This argument is alluring. Indeed, it seems that Lozano is using artful pleading to conceal what in realty is a wrongful discharge suit. In a pre-Hawalian Airlines decision, the Third Circuit stated:
"if the basic injury was [an employee's] wrongful discharge, the complaint involves a minor dispute which must be arbitrated following the procedures of the RLA.... Artful pleading cannot conceal the reality that the gravamen of the complaint is a wrongful discharge." Magnuson v. Burlington Northern, Inc., 576 F.2d 1367, 1369 (9th Cir. ), cert. denied, 439 U.S. 930, 99 S. ct. 318, 58 L.Ed.2d 323 (1978). If each time an employee is terminated, he or she could avoid the FLA's mandatory procedure by claiming that the termination was not a violation of the collective bargaining agreement, but rather a breach of some other oral or written representation (such as an employee handbook) or a tortious act (i.e. a fraudulent scheme, outrageous conduct, infliction of emotional distress), the RLA's purposes and procedures would easily be thwarted. the extreme reluctance of other Courts of Appeals to entertain suits purportedly based on state law, but which arguably may involve interpretation of collective bargaining agreement, is solidly grounded int eh need to protect the RLA's basic scheme and purposes....Capraro v. United Parcel Serv. Co., 993 F.2d 328 (5th Cir. 1993). Nonetheless, in light of Hawaiian Airlines, and the Fifth Circuit's interpretation thereof in Hirras and Kollar, this argument is unavailing. The claims are not preempted. Thus, the Court now turns to the substantive state law claim brought against Amtrak.
Vicarious Liability of Amtrak for the Alleged Intentional Torts of its Employee
Lozano has stated unequivocally that the sole basis for his claim liability against Amtrak is under a theory of vicariously liability pursuant to La. Civ. Code art. 2320 and its application found in Lebrane v. Lewis, 292 So.2d 216, 218 (1974). The Lebranefactors for finding such liability are as follows:
(1) whether the tortious act was primarily employment rooted;
(2) whether the act was reasonably incidental to the performance of the employee's duties;
(3) whether the act occurred on the employer's premises; and
(4) whether it occurred during the hours of employment.
Eichelberger v. Sidney, La. App. 2 Cir. No. 34, 040 11/3/00, 771 So.2d 863, 866 (2000) citing LeBrane v. Lewis, 292 So.2d 216 (La. 1974). All four factors need not be met; however, the facts of each case must be examined to determine whether an employee's act is within the scope of his employment. Id. An employer is not vicariously liable for the intentional acts committed by its employee unless such employee is acting within the ambit of his or her assigned duties and also in furtherance of his or her employer's objectives. Id. citing Scott Commercial Union Ins. Co., 415 So.2d 327 (La.App. 2d Cir. 1982).
In order for Stamp to be liable to Lozano, she would have had to fabricate lies concerning the alleged sexual harassment. Certainly, manufacturing trumped up charges cannot be considered actions "in furtherance of his or her employer's objectives."
Indeed, in order for vicarious liability to attach, the tortious conduct of the employee must be so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer's business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer's interest.Watkins v. International Serv. Systems, 32-002 (La.App. 2 Cir. 6/16/99), 741 So.2d 171, 174 citing Baumeister v. Plunkett, 95-2270 (La. 05/21/96), 673 So.2d 994. Plaintiff's own theory of the case is that Stamp lied in retaliation for Lozano's refusal to loan her money. There was no employment nexus, Accordingly, Amtrak's Motion for Summary Judgment shall be granted in this regard. Furthermore, the Court finds no just reasons for delay and shall enter judgment in favor of Amtrak. Fed.R.Civ.P. 54(b).
The Court Declines to Exercise Its Supplemental Jurisdiction
The Court's jurisdiction was founded upon Amtrak's being a named defendant under 28 U.S.C. § 1349, because the United States is the owner of more than one-half of its capital stock and 28 U.S.C. § 1331, federal question jurisdiction. As Amtrak is no longer a party to this matter, and Stamp and Lozano are both citizens of Louisiana, this Court does not have subject matter jurisdiction over the claim. The Court is cognizant that it could exercise supplemental jurisdiction over this case. However, plaintiff contends that he needs more time for discovery in this matter. Thus, it is obvious that the matter is not ready for trial. Accordingly, this Court declines to exercise supplemental jurisdiction over the remaining state law claims pursuant to 28 U.S.C. § 1367(c)(3). Accordingly,
IT IS ORDERED that Amtrak's Motion for Summary Judgment is GRANTED and judgment in favor of Amtrak and against Ernesto Lozano shall be entered pursuant to Fed.R.Civ.P. 54(b).
IT IS FURTHER ORDERED that this matter be REMANDED the Twenty-Fourth Judicial District Court for the Parish of Jefferson, State of Louisiana, pursuant to 28 U.S.C. § 1447(c).
New Orleans, Louisiana, this 9th day of July, 2001.