same purpose.” Pacific Gas and Llectric Co. v. Energy Resources Comm'n, 461 U.S. 190, 203-

04 (1983); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

Even where Congress has not completely displaced state regulation in a whole field, state
law is also nullified to the extent that it actually conflicts with federal law, Such a conflict arises
when “compliance with both federal and state regulations is a physical impossibility, or when
state law stands as an obstacle to the accomplishment and cxecution of the full purposes and

objectives of Congress.” HilJshorough County, Fla. v. Automated Medical Laboratories, Inc.,

471 U.S. 707, 713 (1985).
In Harris-Scaggs, Judge Adelman, faced with the exact issue presented to this court,
concluded that “FELA hardly compels the conclusion that Congress meant to displace all

relevant state law.” Harris-Scaggs, 2 I’. Supp. at 1184. As Harris-Scaggs notes, Gottshall

demonstrates that FELA incorporates common law rules by design. Id. This court agrees with
Harris-Scaggs that nothing in the statutory design of FELA or its subsequent judicial
interpretations compels a conclusion that FELA “occupies the field” to such an extent that non-
actionable FELA claims cannot be pursued as state law torts, Id. at 1185,

Nor can this court conceive of any manner in which plaintiff's claim for negligent and
intentionally infliction of emotional distress would interfere with FELA compliance or obstruct
the legislative goals of that statute. TELA is a fault based scheme, as are state tort laws. Id.
Accordingly, the court concludes that plainti{i’s negligent and intentional infliction of emotional
distress claims are not preempted by FELA. Defendant’s motion to dismiss Counts III and IV is

denicd.


for emotional damages absent physical impact or threat of immediate physical harm, Id. at 547-
48. Throughout its opinion in Gottshall, the Court cited with approval the Seventh Circuit

opinion in Langaster v, Norfolk and Western Railroad, 773 F.2d 807, 815 (7 Cir, 1985), holding

that “PELA does not reach torts which work their harm through nonphysical means.”

In the instant case, plaintiff makes no allegation of physical harm or physical impact, or
that he was ever placed in immediate risk of physical harm. Plaintiff's allegation that he has
suffered physical and cmotional pain and suffering is not, as defendant argues, an allegation of
physical injury or impact, and is insufficient to support a FELA claim. Therefore plaintiff's
claim for negligent and intentional infliction of emotional distress are not cognizable under
FELA,

‘That leaves the question of whether 'ELA preempts any claims for personal injuries that
are not cognizable under that statute. A federal statute, such as FELA, overrides state law when
the scope of the statute indicates that Congress intended to “occupy the field,” or when the state
law is in actual conflict with the federal statute. Harris-Scaggs v. Soo Line R.R. Co., 2 F.
Supp.2d 1179, 1183-84 (E.D. Wis. 1998) (citing Freightliner Corp. v. Myrick, 514 U.S. 280, 287
(1995)). Because FELA has no explicit preemptive language, the question becomes whether
Congress’ intent to supercede state law altogether may be found from a scheme of federal
regulation so pervasive as (o make reasonable the inference that Congress left no room for
supplemental state regulation [whole field preemption”], cither “because the act of Congress
may touch a field in which the federal interest is so dominant that the federal system will be
assumed to preclude enforcement of state law on the same subject, or because the object sought

to be obtained by the federal law and the character of obligations imposed by it may reveal the


Finally, in Count V, plaintiff alleges a claim for disparate treatment. Defendant argues
the count should be dismissed for failure to identify the federal law upon which plaintiff relics.
Defendant is simply wrong. Under federal notice pleading “plaintiff is not required to plead facts
or legal theories or cases or statues, but metcly to describe his claims briefly and simply.” Shah
y. Inter-Continental Hotel Chicago Operating Comp., 314 F.3d 278, 282 (7" Cir. 2002). Defendant
can “smoke out” plaintiff's theory of the case by serving a contention interrogatory, Id.
Therefore, defendant’s motion to dismiss Count V is also denied.

CONCLUSION

For the reasons set forth above, defendant’s motion to dismiss Counts JI] through V is
denied.

ENTER: February 18, 2003

Robert W. Gettleman
United States District Judge



te Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge | Robert W. Gettleman Stan nage Oxber

CASE NUMBER 02 C 6459 DATE Feb, 18, 2003
CASE Clayton Starks, {1 v Northeast Ill. Regional Commuter RR, etc.
TITLE

{in the following box (a) indicate the parly filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) a Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due __

(3) Oo Answer brief to motion duc. . Reply to answer brief duc -

@ oa Ruling/Hearing on _set for at .

(5) im Status hearing

(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at :
(7) im Trial[set for/re-set for] on at

(8) 0 [Bench/Jury trial] [Hearing] held/continued io at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) General Rule21 OC FRCP4I1(a)(1) OO FRCP4L(a)(2).

qo) [Other docket entry]
Memorandum opinion and order entered. Accordingly, defendant’s motion to dismiss
Counts If] through V is denied.

al @ (For further detail! see order attached to the original minute order.]
No notices required, advised in open court, Document -
a Number:
No notices required, smb a otis :
X_ | Notices mailed by judge's staff.
Lea t 9 9093
‘Notified counsel by telephone. cleted
Docketing to mail notices.
Mail AO 450 form. hina docket Nyy hits
Copy to judge/magistrate judge. BET nay
courtroom nr date mailed novice
Gbs deputy’s wet y
initials —
Date’time received in
central Clerk's Office railing deputy initials



TN THE UNITED STATES DISTRICT COURT
fOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION oe
CLAYTON STARKS, II], )
)
Plaintiff, )
) No. 02C 6459

v. )

) Judge Robert W. Gettleman
NORTHEAST ILLINOIS REGIONAL )
COMMUTER RAILROAD CORPORATION, )
d/b/a METRA/Metropolitan Rail, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Clayton Starks, ITI bas brought a five count complaint against defendant alleging
(1) racially hostile work environment; (2) retaliation; (3) negligent infliction of emotional
distress; (4) intentional infliction of emotional distress; and (5) disparate treatment, in Counts I
through V respectively. Defendant has moved to dismiss Counts II through V for failure to state
aclaim. For the reasons set forth below, the motion is denied.

Plaintiff, an African-American male, has worked for defendant since approximately June
1993, most recently as a conductor. In October 2001, plaintiff requested to work the “Burro
Crane Pilot” position, which is a higher paying position than most jobs available at defendant.
The crane generally runs and, therefore, the position is open, one week at atime. Plaintiff alleges
that starting in October 2001, after his request, he would be assigned to the position for one or
two days and then the position would be terminated, only to be reopened the next day with a

Caucasian worker with less seniority working the rest of the week, Plaintiff complaincd to his

a\



union in October 2001, but no action was taken. Plaintiff also complained to his supervisor,
Michael Stuckey, but reccived no response.

On November 26, 2001, plaintiff again complained to Stuckey. Outside Stuckey’s door
was a sign that said “English Only.” Upon entering the office, Stuckey began snickering and
looking above plaintiff's head. Tied to a pipe hanging directly above plaintiff's head was a
hangman’s noose.

DISCUSSION

In Counts IIT and 1V, plaintiff alleges state law claims for negligent and intentional
infliction of emotional distress. Defendant argues that these claims for personal injury must be
brought pursuant to the Federal Employers Liability Act (“FELA”), 45 U.S.C. § 51. Defendant
argues that I'ET.A is the exclusive remedy for injured railroad workers. Sce Myers v. Illinois
Central R. Co., 323 IIL. App.3d 780, 786 (4" Dist. 2001).

Defendant is correct that FEI.A generally provides the exclusive remedy for railroad
employees seeking to recover for personal injury sustained in the course of employment. Lrie
Railroad Co. v. Winfield, 244 U.S, 170 (1917), The Supreme Court has held, however, that
FELA applies only when the plaintiff suffers a physical injury or non-physical injury resulting

from physical impact. Consolidated Rail Corp. v. Gottshall, 512 U.S, 532 (1994), In Gottshall,

the Court found that an emotional injury constitutes injury resulting from an employer's
negligence for purposes of "ELA only if it would be compensable under the common-law zone
of danger test. Id. at 555. Because this zone of danger test “limits recovery for emotional injury
to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or

who are placed in immediate risk of physical harm by that conduct,” there can be no FELA claim