Scott T. Richardson v. BNSF Railway Company
No. 20-1932
United States Court of Appeals For the Eighth Circuit
June 28, 2021
Aрpeal from United States District Court for the District of Nebraska - Lincoln
Submitted: March 17, 2021
Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
Scott T. Richardson sued BNSF Railway Co., alleging constructive discharge and intentional infliction of emotional distress under Nebraska law. BNSF moved to dismiss both claims under
I.
Richardson‘s complaint alleged the following facts. In 2015, after eighteen years of employment with BNSF, Richardson received a new supervisor. Shortly thereafter, BNSF “pulled [Richardson] out of service,” alleging that he had left a company vehicle at a hotel bar. According to the supervisor, Richardson had been drinking while driving. After a six-week investigation produced no evidеnce that Richardson had been drinking while driving, BNSF returned Richardson to service. BNSF then required Richardson to complete from memory expense reports related to events that had occurred before his removal. Upon identifying alleged errors in Richardson‘s expense reports, BNSF terminated Richardson‘s employment.
On January 31, 2018, an arbitration board reversed the termination, ordering BNSF “to return [Richardson] to work with his seniority intact within 30 days.” However, BNSF “made no attempts to return [Richardson] to work within 30 days.” When Richardson contacted the supervisor in February to discuss reinstatement, the supervisor “responded with expletive laced messages” and “threatened physical violence” as well as “further disciplinary action” against Richardson. It was not until April 2019, more than one year after the board‘s decision, that BNSF mailed Richardson a letter instructing him to contact a different BNSF manager on or before May 8, 2019 “to begin the reinstatement process.”
Although Richardson‘s complaint did not detail what happened next, the record indicates, and Richardson does not deny, that he declined BNSF‘s invitation to return to work. Richardson‘s complaint did allege, however, that he “reasonably believed [BNSF] never intеnded to return [him] to employment, that [BNSF and its employees] would continue to harass and threaten [him], that [BNSF] would discipline [him] without cause,” and that BNSF “would ultimately terminate [him] without cause.” According to Richardson, BNSF “deliberately rendered [his] working conditions intolerable” in order to “force [him] to quit.” In addition, Richardson alleged that, by subjecting him to discipline and termination without cause and by “berating [him] with expletive laced language and threats of physical violence,” BNSF and its employees engaged in “intentional or reckless” conduct that was “so outrageous in character and so extreme in degree as to
Richardson sued BNSF in Nebraska state court, alleging constructive discharge and intentional infliction of emotional distress. BNSF removed the case to federal court on the basis of diversity jurisdiction and then moved to dismiss. The district court granted the motion, concluding that the Railway Labor Act (“RLA“),
II.
“We review the grant of a motion to dismiss de novo.” Tholen v. Assist Am., Inc., 970 F.3d 979, 982 (8th Cir. 2020). On appeal, as before the district court, BNSF argues that dismissal was proper under
We begin with the question whether dismissal was proper under
BNSF argues that the district court properly dismissed Richardson‘s complaint under
We agree with BNSF and the district court that the RLA divested the district court of subject-matter jurisdiction over Richardson‘s constructive-discharge claim. “The clear and oft-cited rule in Nebraska is that unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an at-will employee at any time with or without reason,” with a limited exception for cases in which the termination violates a “very clear mandate of public policy.” Malone v. Am. Bus. Info., 634 N.W.2d 788, 790, 793 (Neb. 2001). Richardson has not identified a constitutional or statutory basis for his alleged right under Nebraska law not to be discharged, constructively or otherwise; nor has he identified a “very clear mandate of public policy” that the alleged constructive discharge violated. See id. at 793. The only remaining source of his alleged right is thus contractual. But Richardson
We reach the opposite conclusion regarding Richardson‘s claim of intentional infliction of emotional distress. “[A]s long as [a] claim can be resolved withоut interpreting the agreement itself,” the RLA does not deprive courts of subject-matter jurisdiction over it. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 262-63 (1994). Here, it is possible to resolve Richardson‘s claim of intentional infliction of emotional distress without interpreting the collective-bargaining agreement because Richardson‘s complaint fails to state a claim of intentional infliction of emotional distress under Nebraska law no matter what the collective-bargaining agreement says. Therefore, the district court had subject-matter jurisdiction over Richardson‘s claim of intentional infliction of emotional distress, which means that dismissal under
Under
A plaintiff bringing a claim of intentional infliction of emotional distress under Nebraska law must clear “a high hurdle.” Heitzman v. Thompson, 705 N.W.2d 426, 431 (Neb. 2005). Specifically, he must show that the defendant engaged in “intentional or reckless” conduct that was “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community,” causing the plaintiff to suffer “emotional distress so severe that no reasonable person should be expected to endure it.” Id. at 430-31. Clearing this hurdle requirеs showing more than that the defendant “threat[ened]” or “insult[ed]” the plaintiff, id. at 431, or that the defendant breached an employment contract, see Foreman v. AS Mid-Am., Inc., 586 N.W.2d 290, 296-97, 305-06 (Neb. 1998).
Here, Richardson alleged that BNSF or its employees disciplined and fired him without cause and “berat[ed him] with expletive laced language and threats of physical violence.” He then recited the Nebraska Supreme Court‘s standard for intentional infliction of emotional distress and asserted that BNSF‘s and its employees’ conduct met this standard. It is unnecessary to interpret the collective-bargaining agreement to conclude that these
Richardson‘s allegations of discipline and termination without cause are insufficient to generate a reasonable inference of liability because discipline and termination without cause are not so outrageous that they give rise to a cause of action for intentional infliction of emotional distress under Nebraska law. If they were, then every employer who fired an employee without cause would face liability if the employee suffered severe emotional distress as a result. But Nebraska law generally permits an employer to fire an employee “at any time, with or without reason,” without incurring liability. Malone, 634 N.W.2d at 790. True, Richardson‘s complaint implies that, unlike an at-will employee, he was protected by the collective-bargaining agreement against discipline and termination without cause. Under Nebraska law, however, the mere fact that otherwise legal conduct constitutes a breach of an employment contract does not render it outrageous for purposes of intentional infliction of emotional distress. See Foreman, 586 N.W.2d at 296-97, 305-06. Therefore, even assuming the discipline and termination violated the collective-bargaining agreement (without interpreting the agreement to verify this assumption), we can conclude that Richardson‘s allegations regarding the discipline and termination do not generate a reasonable inference of liability.
The addition of allegations of “expletive laced language and threats of physical violence” does not alter this conclusion. These allegations are too general to warrant anything more than speculation that the conduct of BNSF or its employees went beyond mere “threats” and “insults,” which the Nebraska Supreme Court has held are not outrageous for purposes of intentional infliction of emotional distress. See Heitzman, 705 N.W.2d at 431. And factual allegations lacking “enough specificity to raise a right to relief above the speculative level” are insufficient to support a reasonable inference that the defendant is liable. Minn. Majority, 708 F.3d at 1055 (internal quotation marks omitted). Therefore, again without interpreting the collective-bargaining agreement, we can conclude that supplementing the allegations regarding the discipline and termination with the allegations of threats and tirades is insufficient to generate a reasonable inference of liability.
Finally, we have no difficulty concluding, without looking to the collective-bargaining agreement, that the addition of Richardson‘s “[t]hreadbare recital[] of the elements” of intentional infliction of emotional distress and “conclusory statement[]” that the conduct of BNSF or its employees satisfied these elements is also insufficient to generate a reasonable inference of liability. See Iqbal, 556 U.S. at 678.
In sum, it is possible to resolve Richardson‘s claim of intentional infliction of emotional distress without interpreting the collective-bargaining agreemеnt because Richardson‘s complaint fails to state a claim of intentional infliction of emotional distress under Nebraska law no matter what the collective-bargaining agreement says. Therefore, dismissal of Richardson‘s claim of intentional infliction of emotional distress was appropriate under
III.
The concurrence offers two criticisms of our analysis. First, it argues that, by treating the RLA‘s mandatory-arbitration provision as jurisdictional, we unnecessarily decide an open question in this circuit. Post, at 13-15. Second, it disagrees with our approach to resolving Richardson‘s
A.
According to the concurrence, whether the RLA‘s mandatory-arbitration provision is jurisdictional is an open question that we need not decide here. We disagree. It is settled law in this circuit that the RLA divests courts of subject-matter jurisdiction over claims arising out of the interpretation or application of a collective-bargaining agreement between a carrier and its employees. See, e.g., Jenisio v. Ozark Airlines, Inc. Ret. Plan for Agent & Clerical Emps., 187 F.3d 970, 973-74 (8th Cir. 1999). The concurrence suggests that Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006), may have cast doubt on prior circuit precedent on this point. Post, at 14. Even if that is correct, but see Oakey v. U.S. Airways Pilots Disability Income Plan, 723 F.3d 227, 235-38 (D.C. Cir. 2013) (concluding that Arbaugh did not abrogate its precedents holding that the RLA‘s mandatory-arbitration provision is jurisdictional), we resolved this doubt in Hastings v. Wilson, 516 F.3d 1055, 1058-60 (8th Cir. 2008) (reaffirming that a district court “lack[s] subject matter jurisdiction” over claims arising out of the interpretation or application of a collective-bargaining agreement).
The concurrence fails to persuade us otherwise. It begins by analyzing the state of circuit law on whether RLA preemption is ordinary or complete, suggesting that perhaps Beneficial National Bank v. Anderson, 539 U.S. 1 (2003), might permit us to hold that RLA preemption is ordinary notwithstanding prior circuit precedent to the contrary. Post, at 13-14. We have our doubts. See, e.g., Griffoien v. Cedar Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1188-89, 1192 (8th Cir. 2015) (treating circuit precedent that RLA preemption is complete as good law after discussing Beneficial). But set these doubts aside. The whole discussion is interesting but irrelevant. To say that RLA preemption is “ordinary” is just to say that a state-court defendant cannot invoke federal-question jurisdiction as a basis for removal simply by asserting that the plaintiff‘s claim arises out of the interpretation or application of the collective-bargaining agreement. See, e.g., Caterpillar, Inc. v. Williams, 482 U.S. 386, 391-94 (1987). This does not imply that the RLA‘s mandatory-arbitration provision is nonjurisdictional. See Trs. of Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 329 n.3 (8th Cir. 2006) (еxplaining that the proposition that a mandatory-arbitration provision precludes a claim from being litigated in federal court “is distinct from the doctrine of complete preemption used to remove state claims to federal court“). Consider, as an analogy, the National Labor Relations Act (“NLRA“),
B.
The concurrence‘s second criticism concerns our approach to resolving Richardson‘s claim of intentional infliction of emotional distress insofar as it was based on allegations of discipline and termination without cause. Acсording to the concurrence, we are adopting a blanket rule “that requires a district court to resolve the merits of a state-law claim that relies on interpretation of a collective bargaining agreement in order to determine whether the claim is preempted.” Post, at 16. The concurrence argues that this rule has peculiar implications when a case proceeds to a jury trial and, at the close of evidence, neither side is entitled to a directed verdict no matter what the collective-bargaining agreement says. Post, at 16.
We do not understand our holding tо be as sweeping as the concurrence suggests. True, we rely on the Supreme Court‘s statement that the RLA does not deprive courts of subject-matter jurisdiction over a claim “as long as the . . . claim can be resolved without interpreting the agreement,” Norris, 512 U.S. at 262-63, and a stubbornly literal interpretation of this statement may have peculiar implications if the judge must submit the case to the jury. But narrower interpretations of the statement are available. For example, one could interpret the statement to mean that as long as it is apparent from the face of the pleadings that the case can be resolved without interpreting the agreement, the court retains subject-matter jurisdiction. Or, one could interpret the statement to mean that as long as the court (that is, the judge) can resolve the case without interpreting the agreement, the court retains subject-matter jurisdiction. We need not decide among these and other possible interpretations today. Each of them is a fair reading of Norris that avoids implications such as those that worry the concurrence. And because it is apparent from the face of the complaint that Richardson‘s claim of intеntional infliction of emotional distress can be resolved without interpreting the collective-bargaining agreement, each of them supports our analysis.
Indeed, we are hard-pressed to conjure any plausible interpretation of the statement in Norris that would permit us to conclude that Richardson‘s claim is preempted even though it can be resolved under
Thus, we can cheerfully concede that, if Richardson had alleged “tortious conduct that included discipline and discharge without cause,” such that he could prove liability but only by prevailing on a “[q]uestion[] of contract interpretation,” then his claim would be preempted. See post, at 17. But the fact is, Richardson did not allege conduct that was tortious, and thus he could not prove liability no matter what the contract means. Therefore, even if interpreting the collective-bargaining agreement might be necessary to determine the truth of the allegations, it is not necessary to resolve the claim. See Jones v. Bock, 549 U.S. 199, 215 (2007) (explaining that “a complaint is subject to dismissal for failure to state a claim” if the plaintiff would not be entitled to relief even assuming the allegations are true).
Finally, the concurrence suggests that our analysis conflicts with Carter v. Ford Motor Co., 121 F.3d 1146 (8th Cir. 1997), and Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir. 1989), each of which concluded that the RLA preempted a claim of intentional infliction of emotional distress under Missouri law. Post, at 15-17. We disagree. In neither case did we state or even imply that the plaintiff‘s claim was capable оf resolution under
IV.
For the foregoing reasons, we affirm.
COLLOTON, Circuit Judge, concurring in the judgment.
I would affirm the district court‘s dismissal of Richardson‘s complaint, but I
Whether the RLA divests a district court of subject mаtter jurisdiction over state-law claims is an open question in this circuit under current law. For a time, this court maintained that the doctrine of “complete preemption” applied under the RLA, meaning that “the pre-emptive force of [the] statute is [so] ‘extraordinary,’ [that] it ‘converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.‘” Deford v. Soo Line R.R. Co., 867 F.2d 1080, 1084 (8th Cir. 1989) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 393 (1987)). Deford cited “overwhelming case law” in support of that view, id. at 1085, but has been criticized for relying on “the inaccurate observation that the Supreme Court in Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320 (1972), allowed reliance on the RLA for removal jurisdiction.” Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 277 n.9 (2d Cir. 2005).
Our later decision in Gore v. Trans World Airlines, 210 F.3d 944 (8th Cir. 2000), cited Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 256-59 (1994), for the proposition that “complete preemption applies to disputes involving duties and rights created or defined by the collective bargaining agreement.” Gore, 210 F.3d at 949. But since the intervening decision in Beneficial National Bank v. Anderson, 539 U.S. 1 (2003), every circuit to address the issue has concluded that complete preemption does not apply under the RLA. See Hughes v. United Air Lines, Inc., 634 F.3d 391, 393-95 (7th Cir. 2011); Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244-46 (9th Cir. 2009); Sullivan, 424 F.3d at 274-78; Roddy v. Grand Trunk W. R.R. Inc., 395 F.3d 318, 326 (6th Cir. 2005); see also Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1355-57 (11th Cir. 2003) (reaching same conclusion before Anderson); Ry. Labor Execs. Ass‘n v. Pittsburgh & Lake Erie R.R. Co., 858 F.2d 936, 942 (3d Cir. 1988) (same). As the Seventh Circuit explained in Hughes, a state-law claim “is preempted if it cannot be resolved without construing a collective bargaining agreement, but this is normal preemption—that is, a defense to be asserted in the original forum rather than a rule that the claim itself must rest on federal law.” 634 F.3d at 393-94. This court has not revisited the complete preemption issue since Anderson, and the district court in this case had removal jurisdiction based on diversity of citizenship. See
Setting aside the doctrine of complete preemption, there is a conflict in the circuits on whether the RLA‘s assignment of “jurisdiction” to an adjustment board to resolve disputes arising from interpretation of a collective bargaining agreement deprives a federal district court of subject matter jurisdiction over such a dispute. After Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), expressed concern that courts too often mischaracterize non-jurisdictional requirements as jurisdictional, one circuit held that arbitration before an adjustment board under the RLA is mandatory but not jurisdiсtional, Emswiler v. CSX Transp., Inc., 691 F.3d 782, 788-90 (6th Cir. 2012), and another held that the arbitration
My difference with the majority‘s preemption analysis concerns Richardson‘s claim for intentional infliction of emotional distress based on discipline and dischаrge. The RLA preempts a state-law claim where resolution of the claim depends on interpretation of a collective bargaining agreement. Norris, 512 U.S. at 261. Richardson alleges that BNSF‘s “repeated discipline and termination of Plaintiff without cause” contributed to the commission of a tort under Nebraska law. The governing collective bargaining agreement contemplates that an employee may be discharged only “for cause.” R. Doc. 1-4, at 69; see R. Doc. 8, at 6. Thus, to establish that the company disciplined and discharged him without cause, Richardson “will be required to argue the meaning оf standards or duties created and defined by the governing collective bargaining agreement.” Gore, 210 F.3d at 951. The state-law claim is therefore preempted by the RLA.
This court has resolved essentially the same issue twice before. In Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir. 1989), we held that an employee‘s state-law claim for intentional infliction of emotional distress was preempted by the Labor Management Relations Act, because a determination of the merits “would require us to decide whether his discharge was warranted under the terms of the collective bargaining agreement.” Id. at 624. Carter v. Ford Motor Co., 121 F.3d 1146 (8th Cir. 1997), reached the same conclusion. Id. at 1149; accord Foy v. Giant Food, Inc., 298 F.3d 284, 288 (4th Cir. 2002); Garley v. Sandia Corp., 236 F.3d 1200, 1214 (10th Cir. 2001); Saridakis v. United Airlines, 166 F.3d 1272, 1278-79 (9th Cir. 1999) (applying the RLA). The preemption standard under the RLA is “virtually identical” to that under the LMRA, Norris, 512 U.S. at 260, and there is no material distinction bеtween this case and Carter or Johnson.
The majority instead adopts a novel approach that requires a district court to resolve the merits of a state-law claim that relies on interpretation of a collective bargaining agreement in order to determine whether the claim is preempted. On that view, the court must assume that the employer violated the CBA and resolve the merits of the state-law claim. If the state-law
If the employee makes out a submissible case for the state-law tort, however, then the majority‘s approach is more complicated. If the employer violated the CBA, but the employee would prevail based entirely on conduct of the employer other than the employer‘s violation of the CBA, then the state-law claim is not preempted. But if the employee would prevail only because the employer violated the CBA, then the tort claim is preempted. So juries evidently must be instructed to assume that an employer violated the CBA, but to render a verdict based solely on the employer‘s other conduct. Yet if the employer prevails with a jury, then the employer would not actually secure a judgment on the merits. Where an employee presents a submissible case based in part on the employer‘s assumed violation of the CBA, but does not prevail without regard to the violation, the tort claim is preempted because its resolution depends on an interpretation of the CBA. The district court (on the majority‘s view) lacks subject matter jurisdiction over the claim, so the jury‘s verdict presumably would have no effect beyond determining that the claim is preempted. In response, ante, at 10, the majority suggests that it might retreat from the implications of its logic—and perhaps make an arbitrary distinction between cases resolved on the pleadings and cases resolved on the evidence, or between bench trials and jury trials—but ultimately leaves the district courts with substantial uncertainty about how to proceed under this new methodology.
In my view, Norris and our circuit precedent call for a more straightforward and workable preemption inquiry. Where, as here, “the right asserted“—a right to be free from tortious conduct that included discipline and discharge without cause—requires interpretation of the collective bargaining agreement, the claim is preempted. Norris, 512 U.S. at 260 (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 218 (1985)). “Questions of contract interpretation“—i.e., whether Richardson was discharged for cause—would “underlie any finding of tort liability.” Lueck, 471 U.S. at 218. Carter and Johnson did not resolve the merits of state-law tort claims in order to determine whether those claims were preempted. Better to follow those precedents and hold that the RLA preempts Richardson‘s tort claim asserting liability based on discipline and termination without cause.
Richardson raises two other claims. His constructive-discharge claim is preempted. Ante, at 4-5. His claim for intentional infliction of emotional distress based on a different factual predicate—“expletive laced language and threats of physical violence“—is not preempted, because it is independent of the collective bargaining agreement, see Garley, 236 F.3d at 1214, but it fails to state a claim under Nebraska law. See ante, at 7; Heitzman, 705 N.W.2d at 431. For these reasons, I concur in the judgment affirming the district court‘s dismissal of the complaint.