1 See Hirras v. National R.R. Passengers Corp. , ___ U.S. ___, 114 S.

Ct. 2732, 129 L. Ed. 2d 855 (1994). 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 considerati on in light of H awaiian 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 .), v acated

,

___ U.S.

___, 114 S. Ct. 2732, 129 L. Ed. 2d 855

(1994), we affirmed the district court's dismissal of Sandy Diana2 42 U.S.C. § 2000e (1988).

3 Texas does not recognize the tort of negligent infliction of

emotional distress. B oyles v. Kerr

, 855 S.W.2d 593 (Tex. 1993). Thus, we do not

distu rb the district court's dismissal of Hirras' negligent infliction of

emotional distress claim.

-2- Hirras' Title VII, 2 state-law intentional inflic tion 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 neglige nt and intentional infliction of

emotional distress. The district court dismissed the state-law

negligent infliction of emot ional distress claim on the grounds

that Texas does not recognize such a claim. The court further held

that Hirras' Ti tle 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.-3- II

First, Hirras argues that the Supreme Court's dec ision 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 indepen dent 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. S ee 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." I d. Because such disputes concern

an existing CBA, they "seldom produce strikes" and are known as the

" minor disputes of the railway labor world." E lgin, 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

ordin arily 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 created4 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 "express ly disavow any

language in Burley suggesting that minor disputes encompass state-law claims that

exist independent of the collective-bargaining agreement."

-4- 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 C BA. H awaiian Airlines

,

___

U.S.

___, 114 S. Ct. 2239, 129 L. Ed. 2d 203 (1994). While § 151a

governs "disputes growing out of g rievances 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 s ynonym for disputes involving the application or

interpretat ion of a CBA." I d.

,

___ 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.5 Although Lingle involved the Labor Management Relations Act ("LMRA")

and not the RLA, the Cour t 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- 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 ap p lication of existing

contracts").

The Court in Hawaiian Airlines noted that claim s involving

only factual questions "about an employee's conduct or an

employer's conduct and motives" do not require an interpretation of

the CBA. I d.

,

___ 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 moti vation of the employer," no

interpretation of the CBA is necessary. Id. , 486 U.S. at 407, 108

S. Ct. at 1882. 5 L ingle 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 disc harging or threatening to discharge

him was to deter him from exercising his rights under the Act or to

interfere with his exercise of t hose rights." I d. The Court

concluded that "neither element requires a court to interpret any

term of a collective-bargaining agreement. . . . Thus, the state--6-

law remedy in this case is `independent' of the collectivebargaining 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 wha tever labor agreement

might govern, are not pre-empte d under the RLA." H awaiian

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." I d. at

___, 114 S . Ct. at 2246 (quoting T erminal

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 discusse d 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 o n 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, and6 "The parties' obligation under the RLA to arbitrate disputes arising

out of the application or interpretation of the CB A [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 whistleblowi ng. H awaiian

Airlines , ___ U.S. at ___, 114 S. Ct at 2246.

-7- 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

i nterpreted to justify the termination, i d 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, s ee 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 A ndrews 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. H awaiian Airlines

,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 D eC oe was

decided a month after Hawaiian Airlines

, the Sixth Circuit makes no reference to

the Supreme Court decision.

-8- ___ U.S. at ___, 114 S. Ct. at 2246.

As these examples demonstrate, a claim is preempted by the RLA

o nly if it relies on a provision of the CBA; if the c laim 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 enforc e 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 res olution

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 2 249 (quoting L ingle

, 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 ha rassment by her fellow employees was "outrageous." 7 To

prove intentional inflic tion of emotional distress, Hirras must-9-

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 su ffered by the plaintiff was

severe." T wyman 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 necessa ry finding,

turns on what standard th ey 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

e motional 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 fede ral labor laws. In

Atchison, Topeka & Santa Fe Ry. Co. v. Buell

, the Court considered

whether a railroad employee's claim under the Federal Employers'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 Barre n tine 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.

1 0 The Supreme Court has held that preemption under the RLA is analogous

to preemption under the LMRA. See supra note 5.

-10- L iability Act ("FELA") 8 that he had experienced "emot ional

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 LMRA 10 because "the State has a

substantial interest in regulation of the conduct at issue and the-11-

State's interest is one that does not threaten undue interference

with the federal regulatory scheme." I d. 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, H irras 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 reaso ns, we REVERSE and REMAND to the

district court for consideration of Hirras' intentional infliction

of emotional distress and Title VII claims.