IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

)

JEROLD WASHINGTON, )

)

Plaintiff, )

v. ) Civil Action No. 02-CV-4451

)

NATIONAL RAILROAD PASSENGER )

CORPORATION D/B/A AMTRAK, )

)

Defendant. )

 )

NATIONAL RAILROAD PASSENGER CORPORATION'S

REPLY MEMORANDUM TO PLAINTIFF’S RESPONSE TO DEFENDANT'S

PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT

Judith E. Harris ( I.D. #02358)

William J. Delany (I.D. #74864)

Jennifer M. Nix (I.D. #87204)

Of Counsel: 1701 Market Street

 Morgan, Lewis & Bockius LLP Philadelphia, Pennsylvania 19103

 (215) 963-5000

Attorneys for Defendant

National Railroad Passenger Corporation 

Case 2:02-cv-04451-CG Document 7 Filed 09/20/2002 Page 1 of 8
Table of Contents

(continued)

Page

I. INTRODUCTION

On August 30, 2002, Defendant National Railroad Passenger Corporation ("Amtrak")

filed a partial motion to dismiss Plaintiff Jerold Washington's Complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6). On September 9, 2002, Plaintiff filed a response to Amtrak's

motion in which he voluntarily withdrew his claim pursuant to 42 U.S.C. § 1983 and the Fifth

Amendment (Pl.'s Resp. at 4) and abandoned his apparent claim under 42 U.S.C. § 1981 by

virtue of his failure to address this issue in his opposition. See Smith v. Hilltown Township,

1988 WL 91156 (E.D. Pa. August 29, 1988) (dismissing a claim as abandoned because plaintiff

failed to respond to defendant's argument pertaining to that claim included in the initial brief of a

motion to dismiss).

In addition, Plaintiff clarified his position with respect to his "Unlawful Policies and

Procedures" claim contained in Count Four of his Complaint by asserting that Count Four is a

disparate impact claim under Title VII -- although not labeled as such in his Complaint -- and

thus on its face is not preempted by either the RLA or PHRA. (Pl.'s Resp. at 6, 9). Because

Amtrak has not contested the sufficiency of Plaintiff's claims under Title VII at this stage of the

litigation, it withdraws its motion to dismiss Count Four of Plaintiff's Complaint to the extent it

purports to state a cause of action under Title VII. Accordingly, the only issue remaining before

this Court is Amtrak's Motion to Dismiss Plaintiff's common-law breach of contract claim

contained in Count Three of the Complaint. For the reasons stated in detail in Amtrak's

Memorandum of Law in support of its Motion to Dismiss as well as below, Amtrak's Motion to

Dismiss Count Three of Plaintiff's Complaint should be granted.

Case 2:02-cv-04451-CG Document 7 Filed 09/20/2002 Page 2 of 8
II. ARGUMENT

A. Because Plaintiff's Common-Law Breach Of Contract Claim Requires

Interpretation Of The CBA, It Is A Minor Dispute Preempted By The RLA.

Amtrak moved to dismiss Plaintiff's common-law breach of contract claim asserted in

Count Three of Plaintiff's Complaint for lack of subject matter jurisdiction because Plaintiff's

claim is a "minor" dispute preempted by the Railway Labor Act, 45 U.S.C. §§ 151-188 ("RLA").

Although not specified in the Complaint, Plaintiff concedes in his Response that the contract that

forms the basis of his breach of contract claim is "the general labor contract signed by the

defendant with plaintiff's union" (i.e., the collective bargaining agreement ("CBA")). (Pl.'s Resp.

at 5). The factual basis for his common-law breach of contract claim is that Amtrak "violated

various terms of the contract of employment which plaintiff had with defendant . . . , it violated

various provisions regarding the investigation of complaints, and the proper and necessary steps

to eliminate any and all racial or ethnic discrimination." (Compl. ¶ 48). In his Response,

Plaintiff argues that whether his breach of contract claim constitutes a "major" or "minor"

dispute under the RLA cannot be decided by a motion to dismiss because it requires a factual

analysis that cannot be made at this stage of the litigation. (Pl.'s Resp. at 8). As set forth below,

that is not the case.

Both Plaintiff and Amtrak agree that the RLA "establishes a mandatory arbitral

mechanism for the 'prompt and orderly settlement' of two classes of disputes": major and minor

disputes. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994) (citation omitted). Major

disputes relate to "'the formation of collective [bargaining] agreements or efforts to secure

them.'" Id. (citations and internal quotation omitted). As described by the Third Circuit in

United Transp. Union v. Conemaugh & Black Lick R.R. Co., "a major dispute concerns the

terms an agreement should contain. It involves problems that arise around the bargaining table

Case 2:02-cv-04451-CG Document 7 Filed 09/20/2002 Page 3 of 8
in the negotiation of an agreement." 894 F.2d 623, 628 (3d Cir. 1990) (citations omitted from

original).

On the other hand, minor disputes relate to "grievances or ... the interpretation or

application of agreements covering rates of pay, rules, or working conditions." Norris, 512 U.S.

at 252-53 (citation and internal quotation omitted). More specifically, "[a] minor dispute

concerns the meaning and application of the provisions of the negotiated agreement that has been

hammered out at the bargaining table." Conemaugh, 894 F.2d at 628. As stated in Plaintiff's

Response, "the distinguishing feature of a minor dispute is that the dispute can be conclusively

resolved by interpreting the existing CBA." Coker v. Trans World Airlines, 165 F.3d 579, 583

(7th Cir. 1999) (emphasis added). The RLA requires that minor disputes be arbitrated before the

National Railroad Adjustment Board ("NRAB") established under the RLA. Walker v. Southern

Ry. Co., 385 U.S. 196, 198 (1966). Accordingly, the RLA preempts any state common-law

claim that is determined to be a minor dispute. Norris, 512 U.S. at 253.

Here, as decided by this Court in United Transp. Union v. Southeastern Pennsylvania

Transp. Authority, whether Plaintiff's claim constitutes a major or minor dispute can be decided

"based on the text of the complaint itself and by the nature of the dispute" and a copy of the CBA

is not necessary to make that decision. 23 F.Supp.2d 557, 560 n.3. Similar to the facts alleged in

Plaintiff's Complaint, in United Transportation, the union alleged that the employer failed to

adhere to certain procedures established in the CBA between the union and employer in its

treatment of an employee subject to the CBA. Id. at 558. The employer moved to dismiss the

union's claims for lack of subject matter jurisdiction on the grounds that the dispute was a minor

one governed by interpretation of the CBA. Id. The court agreed, finding that "the dispute is

Case 2:02-cv-04451-CG Document 7 Filed 09/20/2002 Page 4 of 8
properly termed a minor dispute precisely because it may be resolved by reference to the existing

contract." Id. at 559-60.

This Court needs to look no further than the nature of Plaintiff's claim and the text of the

Complaint to determine that this is a minor dispute preempted by the RLA. Because the dispute

at issue here does not relate to the formation of the CBA or to terms the CBA should contain, this

is not a major dispute. Id. Rather, the dispute at issue here requires the interpretation of "rights

already enshrined in the collective bargaining agreement" and thus is a minor dispute preempted

by the RLA. Id.

B. To The Extent Plaintiff's Common- Law Breach Of Contract Claim Is Based

Upon An Agreement Other Than The CBA, It Is Preempted By The PHRA. 

In light of Plaintiff's concession that the terms of the agreement he seeks to enforce are

part of the "general labor contract" signed by Amtrak and the union, as set forth above, Plaintiff's

claims are preempted by the RLA. To the extent Plaintiff alleges that the agreement at issue is

one other than the CBA, then for the reasons set forth in Amtrak's Memorandum of Law in

support of its Motion to Dismiss, Plaintiff's claims are preempted by the Pennsylvania Human

Relations Act ("PHRA") because they are a mere restatement of his unlawful discrimination

claim.

III. CONCLUSION

In his Response, Plaintiff concedes that the Court should dismiss his claims under 42

U.S.C. §§ 1983 and 1981 and the Fifth Amendment. Accordingly, the Court should dismiss each

of these claims with prejudice. Plaintiff also concedes that Count Three of the Complaint

purports to state a claim for breach of a provision or provisions of the CBA between Amtrak and

the union. Accordingly, this claim should be dismissed with prejudice for lack of subject matter

jurisdiction as it is preempted by the RLA. To the extent this claim is based upon the terms of an

Case 2:02-cv-04451-CG Document 7 Filed 09/20/2002 Page 5 of 8
agreement other than the CBA, this claim should be dismissed with prejudice because it is an

impermissible attempt to recover for alleged discrimination, and any such state law cause of

action is preempted by the PHRA. For these reasons, the Court should dismiss with prejudice

Count Three of the Complaint.

Respectfully submitted,

 

Judith E. Harris ( I.D. #02358)

William J. Delany (I.D. #74864)

Jennifer M. Nix (I.D. #87204)

Of Counsel: 1701 Market Street

 Morgan, Lewis & Bockius LLP Philadelphia, Pennsylvania 19103

 (215) 963-5000

Attorneys for Defendant

National Railroad Passenger Corporation

 

Case 2:02-cv-04451-CG Document 7 Filed 09/20/2002 Page 6 of 8
TABLE OF CONTENTS

Page

i

I. INTRODUCTION ............................................................................................................. 1

II. ARGUMENT..................................................................................................................... 2

A. Because Plaintiff's Common-Law Breach Of Contract Claim Requires

Interpretation Of The CBA, It Is A Minor Dispute Preempted By The

RLA........................................................................................................................ 2

B. To The Extent Plaintiff's Common- Law Breach Of Contract Claim Is

Based Upon An Agreement Other Than The CBA, It Is Preempted By The

PHRA. .................................................................................................................... 4

III. CONCLUSION.................................................................................................................. 4

Case 2:02-cv-04451-CG Document 7 Filed 09/20/2002 Page 7 of 8
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing National Railroad Passenger

Corporation's Reply Memorandum To Plaintiff's Response To Defendant's Partial Motion to

Dismiss Plaintiff's Complaint was served by United States mail, postage prepaid, this 23rd day of

September, 2002 on counsel for Plaintiff, addressed as follows:

Armando A. Pandola, Jr., Esquire

400 Sterling Commerce Center

1819 JFK Boulevard

Philadelphia, PA 19103

____________________________

Jennifer M. Nix

Case 2:02-cv-04451-CG Document 7 Filed 09/20/2002 Page 8 of 8