Hirras v. National R.R. Passenger Corp., 92-5753

• Decision Date: 07 January 1994
• Docket Number: No. 92-5753,92-5753
• Citation: 10 F.3d 1142
• Parties: 145 L.R.R.M. (BNA) 2137, 63 Fair Empl.Prac.Cas. (BNA) 972, 63 Empl. Prac. Dec. P 42,762, 62 USLW 2446, 127 Lab.Cas. P 10,966 Sandy Diana HIRRAS, Plaintiff-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1142

10 F.3d 1142

145 L.R.R.M. (BNA) 2137, 63 Fair

Empl.Prac.Cas. (BNA) 972,

63 Empl. Prac. Dec. P 42,762, 62 USLW 2446,

127 Lab.Cas. P 10,966

Sandy Diana HIRRAS, Plaintiff-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, d/b/a Amtrak,

Defendant-Appellee.

No. 92-5753.

United States Court of Appeals,

Fifth Circuit.

Jan. 7, 1994.

James A. Kosub, Kosub & Gaul, San Antonio, TX, for plaintiff-appellant.

Mitchell M. Kraus, Gen. Counsel, Rockville, MD, amicus--Transportation Communications Internatl. Un.

George P. Parker, Jr., Matthews & Branscomb, San Antonio, TX, for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

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

EMILIO M. GARZA, Circuit Judge:

Plaintiff Sandy Diana Hirras brought this lawsuit against her employer, the National Railroad Passenger Corporation ("Amtrak"), alleging that Amtrak failed to provide her with a work environment free from gender-based discrimination. The district court dismissed Hirras's Title VII, 42 U.S.C. Sec. 2000e et seq. (1988), state law intentional infliction of emotional distress, and negligent infliction of emotional distress claims. We affirm.

I

Hirras alleges that shortly after Amtrak hired her as a ticket clerk at its San Antonio station, she was verbally abused by co-workers, received abusive telephone calls and notes from anonymous sources, and was the subject of obscene graffiti spray-painted by an anonymous person onto a door at the station. Hirras further alleges that the harassment became so unbearable that she was forced to take a leave of absence from her job and is unable to return to work.

Amtrak, on the other hand, contends that the telephone calls resulted not from sexual harassment, but rather from the arrest of an Amtrak passenger in San Antonio who allegedly was transporting drugs aboard an Amtrak train. ¹ Amtrak also argues that it did not tolerate a hostile work environment, but instead contacted four law enforcement agencies--the Federal Bureau of Investigation and the Amtrak, Southern Pacific, and San Antonio Police Departments--to investigate the calls and notes that Hirras received. Unfortunately, however, the agencies were unable to determine the source of the calls and notes.

The district court granted Amtrak's motion to dismiss Hirras's state law claim for negligent infliction of emotional distress, finding that Texas does not recognize such a claim. The district court also held that Hirras's state law claim for intentional infliction of emotional distress was preempted by the Railway Labor Act ("RLA"), 45 U.S.C. Sec. 151 et seq. Finally, the district court dismissed Hirras's Title VII claim without prejudice, holding that the claim was subject to the arbitration provisions of the RLA, 826 F.Supp. 1062. ² Hirras now appeals all three aspects of the district court's judgment. ³

II

Hirras, relying on Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), initially contends that her Title VII claim is cognizable in federal court and is not governed by the mandatory arbitration provisions of the RLA. Amtrak, citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), argues that Hirras's Title VII claim is subject to the arbitration provisions of the RLA and, therefore, that the district court did not err in dismissing the claim for lack of subject matter jurisdiction.

In reviewing a Rule 12(b)(6) motion to dismiss, the facts alleged in the complaint are assumed correct. Doe v. State of Louisiana, 2 F.3d 1412, 1413 (5th Cir.1993). The complaint may not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Id. at 1416.

A

Section 3 of the RLA provides:

The disputes between an employee ... and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions ... may be referred by petition of the parties or by either party to the appropriate division of the [National Railroad] Adjustment Board ["NRAB"] with a full statement of the facts and all supporting data bearing upon the disputes.

45 U.S.C. Sec. 153 First (i). "Minor disputes" include those where "the [employee's] claim is founded upon some incident of the employment relationship, or asserted one, independent of those covered by the collective agreement, e.g., claims on account of personal injuries." Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 723, 65 S.Ct. 1282, 1290, 89 L.Ed. 1886 (1945); see also Morales v. Southern Pacific Transp. Co., 894 F.2d 743, 745 (5th Cir.1990) (stating that claims "which grow out of the employment relationship can constitute 'minor disputes' under the Act, even when the claims do not arise directly from the collective bargaining agreement"). The NRAB's jurisdiction over minor disputes is exclusive. ⁴ Andrews v. Louisville & N. Ry., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972). "[I]f there is any doubt as to whether a dispute is major or minor a court will construe the dispute to be minor." Railway Labor Executives Ass'n v. Norfolk & W. Ry., 833 F.2d 700, 705 (7th Cir.1987).

B

In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), the plaintiff, as required by his employer, registered as a securities representative with the New York Stock Exchange. Gilmer's registration application provided that he agreed to arbitrate any controversy arising out of the employment relationship or termination of his employment. After Interstate terminated his employment, Gilmer brought suit alleging that Interstate had discharged him because of his age, in violation of the Age Discrimination in Employment Act ("ADEA"). ⁵ The Supreme Court found that, pursuant to the Federal Arbitration Act ("FAA"), ⁶ Gilmer was required to arbitrate his ADEA claim:

It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA.... "[B]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; [instead,] it only submits to their resolution in an arbitral, rather than judicial, forum."

500 U.S. at ----, 111 S.Ct. at 1652 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985)).

The Court in Gilmer rejected several policy arguments against requiring arbitration of statutory discrimination claims. Gilmer first argued that because the Congress designed the ADEA to both address individual grievances and promote important social policies, compulsory arbitration of ADEA claims would be inconsistent with the purposes and statutory framework of the ADEA. The Court, however, did not find any inherent inconsistency between those policies and the arbitration of ADEA claims: " '[S]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent functions.' " 500 U.S. at ----, 111 S.Ct. at 1653 (quoting Mitsubishi, 473 U.S. at 637, 105 S.Ct. at 3359).

Gilmer next contended that compulsory arbitration was inappropriate because it would deprive claimants of the judicial forum provided for by the ADEA. "Congress, however, did not explicitly preclude arbitration or other non-judicial resolution of claims, even in its recent amendments to the ADEA." Id. at 1653-54. Moreover, the Court stated that Gilmer's contention ignored the ADEA's flexible approach to the resolution of claims, "which suggests that out-of-court dispute resolution, such as arbitration, is consistent with the statutory scheme established by Congress." Id. at 1654.

The Supreme Court in Gilmer also rejected as " 'far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes,' " id. (citation omitted), a host of challenges raised by Gilmer to the adequacy of arbitration proceedings. First, the Court refused to presume that arbitrators will be biased in favor of the employer. Id. The Court then rejected the contention that the limited discovery allowed in arbitration would make it difficult to prove discrimination. Id. at 1654-55. The Court also found that " 'although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute' at issue." Id. at 1655 n. 4 (quoting Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 232, 107 S.Ct. 2332, 2340, 96 L.Ed.2d 185 (1987)).

Shortly after the Supreme Court decided Gilmer, we held that a stockbroker's Title VII claim was subject to compulsory arbitration under the FAA: ⁷ "[W]e have little trouble concluding that Title VII claims can be subjected to compulsory arbitration. Any broad public policy arguments against such a conclusion were necessarily rejected by Gilmer." Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229, 230 (5th Cir.1991). Moreover, we found that Gilmer definitively rejected any argument against arbitration of discrimination claims that was based on a "mistrust of the arbitral process." ⁸ Id.

C

Turning now to the question whether Hirras's Title VII claim is subject to the RLA's arbitration provisions, we find that Gilmer and Alford compel the conclusion that Hirras's claim is subject to the arbitration provisions of the RLA. ⁹ The Supreme Court in Gilmer and this Court in Alford determined that there exist no federal or congressional policies prohibiting the submission of discrimination claims to arbitration. Indeed, Sec. 118 of the 1991 Civil Rights Act encourages the use of "alternative means of dispute resolution," including arbitration, to resolve disputes arising under Title VII. Se...