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

and

On Remand from the Supreme Court

of the United States

__________________________________________________

(January 31, 1995)

Before POLITZ, Chief Judge, REAVLEY, and EMILIO M. GARZA, Circuit

Judges.

EMILIO M. GARZA, Circuit Judge:

The National Railroad Passenger Corporation's Petition for

Rehearing is DENIED; and no member of this panel nor judge in

active service on the Court having requested that the Court be

polled on rehearing en banc, the Suggestion for Rehearing En Banc

is also DENIED. However, we withdraw our prior opinion, H irras v.

National Railroad Passenger Corp.

, 39 F.3d 522 (5th Cir. 1994), and1 See Hirras v. National R.R. Passengers Corp. , ___ U.S. ___, 114 S.

Ct. 2732, 129 L. Ed. 2d 855 (1994).

2 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- substitute the following:

This matter is on remand from the United States Supreme Court

f or further consideration 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.), vacated

,

___ U.S.

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

(1994), we affirmed the district court's dismissal of Sandy Diana

Hirras' Title VII, 2 state-law int entional infliction 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 a lleges that her employer, the National Railroad

Passenger Corpora tion ("Amtrak"), "failed to provide her with a

non-hostile workplace." (R. on Appeal at 552.) She complains of

verbal abuse from her 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 f ederal district court for Title VII-3-

violations, and for negligent and intention al infliction of

emotional distress. The district court dismissed the state-law

negligent infl iction of emotional distress claim on the grounds

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

that Hirras' Title VII and state-law inte ntional 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.

II

First, Hirras argues that the Supreme Court's decis ion 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 p urposes of the RLA because it is

grounded in rights an d obligations that exist independent 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 the4 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

-4- "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

ordinarily arise" because they "see k to create rather than to

enforce contractual rights," see id.

, and with those disputes that

seek neither to create nor enforce the contractual rights created

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 CBA. H awaiian Airlines

,

___

U.S.

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

governs "d isputes 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 syn onym for disputes involving the application or

inter pretation of a CBA." I d.

,

___ U.S. at

___, 114 S. Ct. at

2245. 4 This interpretation is consistent with previous Supremecollective 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 "e xpressly disavow any

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

exist independent of the collective-bargaining agreement."

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 tha t L ingle 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- Court decisio ns. S ee, 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.

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 application of existing

contracts.").

The Court in Hawaiian Air lines noted that claims 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 motivation of the employ er," no

interpretation of the CBA is necessary. 5 I d. at 407, 108 S. Ct. at-6-

1882. 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 discharging or threatening to discharge him was to deter

him from exercising his rights under the Act or to interfere with

his exercise of those rights." I d. The Court concluded that

"neither element requires a court to interpret any term of a

collective-bargaining agreement. . . . Thus, the state-law remedy

in this case is `independent' of the collective-bargaining

agreement

. . . : resolution of t he state-law claim does not

require construing the collective-bargaining agreement." Id.

Thus, the Supreme Court held that "substantive prot ections

provided by state law, independent of whatever labor agreement

might govern, are n ot pre-empted 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." Id. 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 t he field of regulating working conditions

themselves." Id. (quoting Terminal R.R. Ass'n , 318 U.S. at 7, 636 "The parties' obligation under the RLA to arbitrate disputes arising

out of the application or interpretation of the CBA [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 whistleblowing. Id.

-7- S. Ct. at 423).

The Court in Hawaiian Airlines discus sed 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, and

thus is not preempted, id. at

___, 114 S. Ct. at 2246, 6 even if the

CBA in question contained provisions that could be interpreted to

justify the termination, id at

___, 114 S. Ct. at 2251. Similarly,

a claim based on a state law requ iring 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, see 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. , 406 U.S. 320, 92 S. Ct. 1562, 32 L. Ed. 2d 95 (1972),-8-

a railroad employee challenged his employer's decision not to

restore him to his regular duties after being injur ed in a car

accident. I d. 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

,

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

As these examples demonstrate, 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 sta te 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 e nforce the state-law obligation are not

preempted by the RLA. I d. at

___, 114 S. Ct. at 2247. 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, woul d 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 2249 (quoting Lingle , 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 r esolution does not require an interpretation of the CBA.

Amtrak, on the other hand, argues that we must interpret the CBA in

order to determine whe ther its handling of the harassment was7 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 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 DeCoe was decided a month after

Hawaiian Airlines

, the Sixth Circuit makes no reference to the Supreme Court

decision. D eCoe is also factually distinguishable from this cas e

. S ee infra

note 12.

-9- "outrageous." 7 To prove intentional infliction of emotional

distress, Hirras must demonst rate that: "(1) the defendant acted

intentionally or recklessly, (2) the conduct was extr eme and

outrageous, (3) the actions of the defendant caused the plaintiff

emotional distress, and (4) the emotional distress suffered 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 the har assment was

substandard to the point of outrageousness, a necessary finding,

turns on what standard it was expected to meet under the CBA.

However, this Circuit has unequivocally stated that "outra geous

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 United States , 35 F.3d 210, 216 (5th Cir. 1994) (quoting

Restatement (Second) of Torts § 46, cmt. d).

Texas state courts have held that an individual's conduct will

no t be considered outrageous for the purposes of an intentional

infliction of emotional distress claim "if he does no more than

insist upon his legal rights in a permissible way." Wieler v.

United Sav. Ass'n

, 887 S.W.2d 155, 159 (Tex. App. )) Texarkana, Sept.

20, 1994, writ requested); see also Restatement (Second) of Torts8 Baker's employer, an electric company, moved him from the position

of journeyman lineman, a position he had held for fourte en years, to the

"demeaning" job of custodian/yardman. Id. at 277.

9 See also Thomas v. LTV

, 39 F.3d 611 (5th Cir. 1994). In T homas

, we

held that an employee's intentional infliction of emotional distress claim based

on his dismissal for excessive absences was preempted by the LMRA. I d. at 619.

Our holding was base d on the fact that the employee had signed an employment

agreement that "qualifie[d] as a CBA" for the purposes of preemption, id. at 618,

and that gave his employer t he right to discharge him if his total number of

absences exceeded a certain percentage of his scheduled work days, id. at 614.

-10- § 46, cmt. g. Accordingly, we held in B aker v. Farmers Electrical

Co-op, Inc.

, 34 F.3d 274 (5th Cir. 1994), that if a CBA could be

interpreted to give an employer the right to engage in conduct that

is the subject of an intentional infliction of emotional distress

claim, an interpretation of the rights granted by the CBA is

necessary to the resolution of the state-law claim. S ee id.

(holding that interpretation of reassignment provisions of CBA was

"inextricably intertwined with resolution of the question whether

[reassignment] was extreme and outrageous").

Hirras' claim is easily distinguishable from that in Baker

.

In Baker

, we noted th at Baker did not allege any "instances of

harassment, discrimination, physical abuse, or other conduct which

would provide grounds for an emotional distress claim." 8 B aker

, 34

F.3d at 280. We concluded that: "The terms of the CBA are relevant

to this issue, because the CBA expressly grants management rights

over the business of Farmers and its employees which could be

interpreted to include the ri ght to reassign an employee's

duties." 9 I d. Baker's counsel even conceded at oral argument that

reference to the CBA was necessary to the resolution of Baker's

intentional i nfliction of emotional distress claim. I d. at 2801 0 Even if the resolution of Hirras' claim involved a reference to the

rights and duties created by the CBA, the Court in Hawaiian Airlines emphasized

that "when the meaning of contract terms is not the subject of dispute, the bare

fact that a collective-bargaining agreement will be consulted in the course of

state-law litigation plainly does not require the claim to be distinguished."

Id. , ___ U.S. at ___, 114 S. Ct. at 2248 n.8 (emphasis added) (quoting Livadas

v. Aubry , ___ U.S. ___, 114 S. Ct. 2068, 2078, 129 L. Ed. 2d 93 (1994)).

1 1 The CBA between Amtrak and its employees, as is was submitted to this

Cou rt, ( s ee R. on Appeal at 686), is divided into the following sections:

Preamble; Seniority Datum; Validating Applications; Seniority Roster; Promotion,

Assignments, and Displacements; Bulletin and Assignment; Short Vacancies; Failure

to Qualify; Voluntary Transfer; Reducing and Increasing Forces; Sick Le ave;

Bereavement Leave; Leave of Absence; Return from Leave of Absence or Temporary

Assignment; Physical Examinations and Disqualification; Discipline,

Investigation, and Appeal; Grievances; Vacation, Holiday, and Group Insurance;

and Union Shop and Dues Deduction. (R. on Appeal at 712-13.)

Amtrak contends on remand that the resolution of Hirras' claim requires an interpretation of the provision of the CBA governing "what actions Amtrak was

required to take in response to Hirras' complaints that she was being harassed,"

but does not point to a par ticular provision. The CBA's section entitled

"Grievances," the only section even tangentially related to the handling of

employee complaints, addresses only the employees' right to file a grievance.

12 The absence of any such provision distinguishes Hirras' claim of

intentional infliction of emotional distress from that in DeCoe v. General Motors

C orp.

, s ee supra note 7, which Amtrak describes as a "post- Hawaiian Airlines "

case involving LMRA preemption of an emotional distress claim based on the manner

in which an investigation of charges of sexual harassment was conducted.

(Appellant's Br. at 6 (citing DeCoe

, 32 F.3d 212 (6th Cir. 1994)). DeCoe's claim

was based on the manner in which his employers conduct ed a sexual harassment

investigation against him

, and the relevant CBA "incorporated a sexual harassment

policy, which imposed a duty on GM, the individual defendants, and the [union]

to identify and resolve harassment complaints. In addition, the CBA specified

that sexual harassment claims were s ubject to its grievance and arbitration

-11- n.5.

In contrast, Hirras does make claims of harassment. (R. on

A ppeal at 552.) Unlike Baker, Hirras contends that the terms of

the CBA are irrelevant to her state-law claim. (Appellant's Br. on

Remand at 12.) We agree. 1 0 The terms of the CBA at issue in this

case are not relevant to the resolution of Hirras' claim because

the CBA contains no provision related to sexual harassment, 11 much

less any provision that could be interpreted to give Amtrak the

right to accommodate sexual harassment or Hirras the right to work

in a non-hostile environment. 12 Hirras' intentional infliction ofprocedures." D eCoe

, 32 F.3d at 217. Thus, General Motors arguably did no more

than insist upon rights created by and contained in the CBA.

1 3 See Martin Marietta Corp. v. Maryland Comm'n on Human Relations

, 38

F.3d 1392, 1401 (4th C ir. 1994) (holding that LMRA did not preempt a

discrimination claim because CBA did not create any rights or duties related to

discrimination, an d comparing holding to its previous determination "that an

employee's tort claim of intenti onal infliction of emotional distress was not

subject to preemption, because reference to the CBA was unnecessary to determine

the duty of care owed").

14 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 o f 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 22 47 n.6 (citation

omitted).

15 The Court in Buell noted 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 min i mum substantive

guarantees to individual workers.'" Id. at 565, 107 S. Ct. a t 1415 (quoting

Barrentine v. Arkansas-Best Freight System, Inc.

, 450 U.S. 728, 737, 101 S. Ct.

1437, 1442, 67 L. Ed. 2d 641 (1981)); see also Hawaiian Airlines , ___ U.S. at

___, 114 S. Ct. at 2247.

-12- emotional distress claim does not depend on an interpreta tion of

the CBA, and thus is independent of the CBA. 13

In similar cases, the Supreme Court has held that claims based

on emotional injury are not preempted by federal labor laws. In

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

, 480 U.S. 557, 107 S.

Ct. 1410, 94 L. Ed. 2d 563 (1987), the Court held that a railroad

employee's claim under the Federal Employers' Liabili ty Act

("FELA") 14 that he had experienced "emotional 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 not preempted by the RLA.

Id. at 559, 107 S. Ct. at 1412. 15 In F armer v. United Brotherhood-13-

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 federal labor

law because "the State has a substantial interest in regulation of

the conduct at issue and the State's interest is one that does not

threaten undue interference with the federal regulatory scheme."

Id. at 302, 9 7 S. Ct. at 1064 ("With respect to [plaintiff's]

claims of intentional infliction of emotional distress, we cannot

conclude that Congress in tended exclusive jurisdiction to lie in

the Board.").

Hirras' state-law claim of intentional infliction of emotional

distress is independent of the CBA because its resolution does not

require an interpretation of the CBA. Therefore, we hold that this

claim is not preempted by the RLA's arbitration provisions.

III

Second, Hirras 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 reasons, w e REVERSE and REMAND to the

district court for consideration of Hirras' intentional infliction

of emotional distress and Title VII claims.