Espinosa v. Norfolk and Western Ry. Co.

• Decision Date: 15 November 1990
• Docket Number: No. 90-CV-71467-DT.,90-CV-71467-DT.
• Citation: 750 F. Supp. 819
• Parties: Henry ESPINOSA, Plaintiff, v. NORFOLK AND WESTERN RAILWAY COMPANY, a Virginia corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

750 F. Supp. 819

Henry ESPINOSA, Plaintiff, v. NORFOLK AND WESTERN RAILWAY COMPANY, a Virginia corporation, Defendant.

No. 90-CV-71467-DT.

United States District Court, E.D. Michigan, S.D.

November 15, 1990.

Guy C. Vining, Trenton, Mich., Eric S. Berkely, Detroit, Mich., for plaintiff.

Carson C. Grunewald, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

ZATKOFF, District Judge.

I. INTRODUCTION

Plaintiff filed a claim under the Michigan Handicappers' Civil Rights Act (MHCRA), M.C.L. §§ 37.1101-.1607 (1979),¹ for injuries allegedly suffered as a result of his termination of employment. Plaintiff alleges that defendant wrongfully discharged him because of his epileptic condition. Plaintiff seeks monetary relief.

This matter now comes before the Court on defendant's motion to dismiss. Plaintiff filed a timely response. Both parties have fully briefed the motion; and pursuant to E.D.Mich.Local R. 17(l), the Court addresses it without entertaining oral argument.

Upon review of the motion, briefs, and file in this case, the Court finds that (1) plaintiff has averred a "minor" dispute, which must be resolved via the mandatory and exclusive arbitration and grievance procedure of the collective bargaining agreement and the Railway Labor Act (RLA), 45 U.S.C. §§ 151-163, 181-85, 187-88 (1988), and that (2) the RLA preempts plaintiff's MHCRA claim. Therefore, the Court lacks jurisdiction over the subject matter of plaintiff's complaint. Accordingly, the Court grants defendant's motion to dismiss.

II. FACTS

Defendant hired plaintiff in March of 1977. In August of that year, plaintiff began work as a switchman operator. This employment relationship spawned the current controversy.

On his employment application, dated March 3, 1977, plaintiff indicated that he had never suffered a seizure or unconscious spell. However, medical records obtained by the defendant indicate that plaintiff in fact suffered an epileptic seizure in his mid-teens. In May of 1979, plaintiff was diagnosed an epileptic.

Plaintiff experienced a seizure while at work on August 18, 1987. As a result, Dr. Ford, defendant's medical director, sent plaintiff a notice suspending plaintiff from his job until he received and evaluated medical reports from plaintiff's doctors and determined plaintiff's status. After evaluating the medical records, Dr. Ford determined that plaintiff was incapable of satisfactorily performing his job duties because of the dangers presented by his seizure disorder. Consequently on November 3, 1987, defendant suspended plaintiff from all service.² Defendant suspended plaintiff pursuant to the provisions of a collective bargaining agreement in effect between the parties and created pursuant to the RLA. In particular, Article 27 of the collective bargaining agreement, entitled "Physical Examination — Reexaminations," allows defendant (1) to perform medical examinations to determine an employee's physical fitness, and (2) to disqualify unfit employees.

Pursuant to Article 27 of the collective bargaining agreement, plaintiff subsequently challenged the disqualification decision. Article 27 of the collective bargaining agreement details the method for challenging the disqualification decision of defendant's medical director. Essentially, Article 27 provides a medical appeal process following disqualification for physical inability. Under this system, plaintiff was entitled to a re-examination by two doctors, one selected by plaintiff-employee and one by defendant-carrier. The doctors can affirm or reverse the recommendation of defendant's medical director. The unanimous recommendation, whether to affirm or reverse, binds both parties. If, however, the two physicians offer conflicting recommendations, a third doctor is selected to provide a controlling recommendation by which the parties are bound.

In accordance with Article 27, defendant selected a re-examining physician, Dr. Vincent Gallant, who physically examined plaintiff and concluded that plaintiff was unfit for service. Plaintiff selected Dr. Andrew Marcus as his re-examining physician. But nothing in the court record indicates the findings of plaintiff's re-examining physician.³ By failing to submit a re-examination report, plaintiff failed to pursue his right to re-examination under Article 27.

Rather than pursuing the re-examination option to the fullest extent possible, plaintiff filed a complaint against defendant with the Office of Federal Contract Compliance Programs (OFCCP) under § 503 of the Federal Rehabilitation Act (FRA), 29 U.S.C. §§ 701-796 (1988). The OFCCP investigated the complaint and rejected plaintiff's claim for relief. The OFCCP specifically found that plaintiff could not safely resume work as a switchman operator because of the future likelihood of seizures. Plaintiff did not file for reconsideration of the OFCCP decision. Thereafter, plaintiff filed a complaint in state court. On May 24, 1990, defendant removed this case to federal court.

III. LEGAL ANALYSIS

A. Grounds for Defendant's Motion

Defendant challenges both the merits of plaintiff's claim and the Court's jurisdiction. Defendant argues that it is entitled to summary judgment and explicitly bases its motion on Rule 56(c). Defendant also argues that the Court lacks subject matter jurisdiction. However, defendant does not specifically mention Rule 12(b)(1).

A party must state with particularity the grounds upon which it bases its motion. Fed.R.Civ.P. 7(b)(1); E.D.Mich.Local R. 17(c). Any challenge based on the merits (e.g., a motion for summary judgment) becomes moot if this Court lacks subject matter jurisdiction. Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir.1990) (motion to dismiss for failure to state a claim may be decided only after establishing subject matter jurisdiction, because determination of the validity of the claim is, in itself, an exercise of jurisdiction). 5A C. Wright & Miller, Federal Practice & Procedure § 1350 (1990) (citing Gould, Inc. v. Pechiney Ugine Kuhlmann, 853 F.2d 445 (6th Cir.1988)). Because the Court finds that it lacks jurisdiction in this case,⁴ it is unnecessary to consider defendant's request for summary judgment. Accordingly, the Court construes defendant's motion exclusively under Rule 12(b)(1).⁵

B. Standard of Review: Subject Matter Jurisdiction

To survive a 12(b)(1) motion, the plaintiff bears the burden of proving federal jurisdiction. Moir, 895 F.2d 266, 269. The test for determining jurisdiction on the face of the pleadings is whether the federal claim alleged is so patently without merit as to justify the district court's dismissal for want of jurisdiction. Duke Power Company v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). The court's inquiry is limited to determining whether the challenged pleadings set forth allegations sufficient to show the court that it has subject matter jurisdiction over the matter. Great Lakes Educational Consultants v. Federal Emergency Management Agency, 582 F.Supp. 193 (W.D.Mich. 1984). The pleadings are to be construed in a light most favorable to the party opposing the motion. If the pleader alleges facts sufficient to infer that proper subject matter jurisdiction exists, the motion must be denied. Id.

C. The Parties' Contentions

Plaintiff claims that defendant fired him, in violation of the MHCRA, because he is an epileptic. Also, plaintiff claims that resolution of this case does not require an interpretation of the collective bargaining agreement. Further, plaintiff contends that the RLA and its preemptive effect are simply not at issue in this case.

Defendant argues that for two reasons this Court lacks subject matter jurisdiction over plaintiff's state claim. Defendant's first argument relies on the provisions of the parties' collective bargaining agreement. Defendant asserts that all "minor" disputes between employer and employee are governed by the provisions of the collective bargaining agreement. Defendant argues that because plaintiff's claim is a minor dispute, it must proceed through the mandatory and exclusive grievance and arbitration procedure that the RLA mandates and that the collective bargaining agreement delineates. Defendant argues that as the mandatory and exclusive means of redress, the RLA's grievance and arbitration procedures preclude subject matter jurisdiction in this Court. Defendant's second argument opposing jurisdiction relies on the preemptive effects of the RLA and the FRA.⁶ In this respect, defendant argues that even if plaintiff has asserted a state claim, the claim is inextricably intertwined with the meaning and interpretation of the collective bargaining agreement and the RLA. Therefore, defendant argues, the RLA preempts the state claim, thus depriving this Court of jurisdiction. For the reasons stated below, the Court finds that it lacks subject matter jurisdiction over plaintiff's MHCRA claim.

D. Nature of the Dispute

The RLA provides the exclusive mechanism for resolving employment disputes that arise out of the meaning or application of the collective bargaining agreement. Under the RLA, an employee submits his dispute to the machinery of a grievance procedure described in the collective bargaining agreement. If the dispute remains unresolved, the employee must submit the dispute to the National Railroad Arbitration Board, or an equivalent Special Board of Adjustment. The RLA explicitly provides that the decision of the Arbitration Board, or its equivalent, is final and binding on both the railroad and the employee. 45 U.S.C. § 153 First (m).

The Supreme Court determined that disputes arising under the RLA are of two types — "major" or "minor." A "major" dispute involves issues regarding the formation of a collective bargaining agreement before actual formation of such an agreement. A "minor" dispute involves issues regarding the meaning or application of an...