Lancaster v. Norfolk and Western Ry. Co.

• Citation: 773 F.2d 807
• Decision Date: 18 November 1985
• Docket Number: No. 84-2768,84-2768
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Parties: 121 L.R.R.M. (BNA) 3201, 103 Lab.Cas. P 11,703 Gary C. LANCASTER, Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellant.

Page 807

773 F.2d 807

121 L.R.R.M. (BNA) 3201, 103 Lab.Cas. P 11,703

Gary C. LANCASTER, Plaintiff-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellant.

No. 84-2768.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 1985.

Decided Sept. 16, 1985.

As Amended Sept. 17, 1985.

Rehearing and Rehearing En Banc Denied Nov. 18, 1985.

James P. Baker, Law Office of James P. Baker, Springfield, Ill., for defendant-appellant.

Ronald L. Carpel, Carol Gables, Fla., Frank H. Byers, Byers, Byers & Greenleaf, Decatur, Ill., for plaintiff-appellee.

Before CUDAHY and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

This appeal by the Norfolk and Western from a judgment for $850,000 in a suit under the Federal Employers' Liability Act (45 U.S.C. Secs. 51-60) by a former employee of the railroad, Gary Lancaster, presents issues of labor and tort law in a bizarre factual setting.

The jury could have found the following facts in favor of Lancaster. In 1975 he was a 30-year-old mechanic working in the railroad's locomotive shop in Decatur, Illinois. Lachrone, a short-tempered foreman in the shop who had once been disciplined for roughing up a worker, became angry at Lancaster and several other workers who Lachrone thought were soldiering on the job. After flipping over a table on which one of the workers (not Lancaster) was sleeping, and smashing a bench, Lachrone grabbed a broom handle, approached Lancaster in a menacing fashion, screamed at him for about 15 seconds, and shook the broomstick in his face. Lancaster bid out from Lachrone's supervision and complained about the incident to his union, but no action was taken.

The incident upset Lancaster abnormally. He thought people were following him, thought his phone was tapped, felt that the pressures of working for the railroad were too much, and went to Georgia to look for a new job. But after a couple of months his distress subsided and he went back to the old one. He was assigned to another foreman, Funderburk, who liked to "goose" workers, pull their hair, and hit them on the arms. He did these things to Lancaster, over the latter's protest. This behavior culminated in an incident in 1976 when Funderburk twice stuck his hand down the back of Lancaster's pants--once squeezing a buttock, the other time sticking his finger into Lancaster's anus. Lancaster became very upset, had trouble working, consulted a doctor, and on the doctor's advice took a leave of absence. The doctor diagnosed Lancaster as suffering from anxiety but it is unclear whether he told Lancaster his diagnosis.

Lancaster returned to work early in 1977 and worked uneventfully until an incident in 1979 involving another supervisor, Boyd. Lancaster and another worker were repairing a locomotive under Boyd's supervision when Boyd picked up a sledgehammer--though as a supervisor he was not supposed to wield a sledgehammer--and swung it at a pin that was stuck. The sledgehammer flew out of Boyd's hands when he completed his swing, and struck Lancaster. Although only bruised, Lancaster became very upset because he thought Boyd had thrown the sledgehammer at him ("I swear before God the man throwed that sledgehammer, because when he throwed it, it went right where my head was back, and when I moved back is the only thing that saved my life").

Two months later Lancaster found himself working under another hot-tempered supervisor, like Lachrone--Tynan, a burly six-footer, who while fondling a pickax handle told Lancaster that if he didn't "keep on the job and do it right, I'll put your name on it." About a week later Lancaster happened to deliver some papers to Tynan that were folded. Tynan said, "I told you not to fold the papers," to which Lancaster replied that he had not folded them, they had been folded when he had received them to give to Tynan. Tynan, enraged, charged Lancaster with pickax handle in hand ("I turned around, and here's Jack [Tynan] coming at me, and I says, don't Jack, don't") and struck the door frame over Lancaster's head with the handle ("I heard his pickax handle hit the door frame, and I turned around, and there's Jack, and he wasn't smiling"). Lancaster became even more upset than after the previous incidents. Indeed his mental condition deteriorated rapidly. His doctor referred him to a psychiatrist who, two weeks after the incident with Tynan, diagnosed Lancaster as schizophrenic. Lancaster quit work, tried unsuccessfully to return, and is expected never to be well enough to work again.

A psychologist who testified for the railroad opined that Lancaster's latent schizophrenia would surely have been triggered by some other traumatic event if no supervisor misconduct had occurred. The two psychiatrists who testified for Lancaster thought this unlikely, among other reasons because Lancaster had got through two divorces before 1970 without incident. They thought that Lancaster's sense of self-worth was bound up with his work for the railroad and that his supervisors' hostile acts had exerted unbearable psychological pressure on him. All three expert witnesses agreed that the incident with Tynan, coming on top of the earlier incidents, had precipitated a descent into madness from which Lancaster will never recover.

Surprisingly, the railroad does not dispute the reasonableness of the damage award (which is made up of $40,000 in medical expenses, $200,000 in past and future pain and suffering, and $610,000 in lost earnings), although it does challenge one of the instructions on damages. Before getting to that, however, we shall consider the three grounds on which the railroad asks that the suit be dismissed: that the cause of action is barred by federal labor law; that the supervisors' misconduct was outside of the scope of their employment, so that the railroad is not liable for that misconduct under the doctrine of respondeat superior; and that the statute of limitations has run. The railroad's challenge to the instruction on respondeat superior (as distinct from the factual basis for a finding of liability on a theory of respondeat superior) has no possible merit and therefore need not be discussed.

The railroad's first ground requires us to consider the effect, if any, of the Railway Labor Act on the plaintiff's rights under the Federal Employers' Liability Act. Originally enacted in 1906, the FELA creates a tort remedy for railroad workers injured on the job. Many years later Congress passed the Railway Labor Act, 45 U.S.C. Secs. 151 et seq., which subjects disputes arising under collective bargaining agreements in the railroad industry (and, with some alterations, now in the airline industry as well, see 45 U.S.C. Secs. 181-88) to compulsory arbitration. See, e.g., Brotherhood of Railroad Trainmen v. Chicago River & Indiana R.R., 353 U.S. 30, 34-35, 77 S.Ct. 635, 637-638, 1 L.Ed.2d 622 (1957); Brotherhood of Locomotive Engineers v. Atchison, Topeka & Santa Fe Ry., 768 F.2d 914 (7th Cir.1985). If Lancaster's dispute with the Norfolk and Western is a dispute over the meaning or application of the collective bargaining agreement--a "grievance," in the jargon of labor relations--then he has a remedy under the Railway Labor Act (or rather had one, because the time limits on prosecuting a grievance under the railroad's collective bargaining agreement with Lancaster's union--limits that are usually stated in days--have surely run out by now). That remedy is to file a grievance against the railroad, the first stage in invoking the arbitral remedies provided by the Act. Lancaster's only judicial remedy under the Act, however, should he lose the arbitration, would be the extremely limited judicial review--a misnomer perhaps, see id., at 921--that the Railway Labor Act allows of arbitration awards.

Does that Act displace the Federal Employers' Liability Act for all harms arising from conduct that might violate a collective bargaining agreement (in an industry subject to the Act) and might thus be arbitrable? There is a mountain of cases dealing with the preemption of state tort remedies by the Railway Labor Act, but oddly enough we have found only one case dealing with the Act's displacement of tort remedies under the FELA (the Yawn case, discussed below), even though the FELA preempts state law within its domain, Janelle v. Seaboard Coast Line R.R., 524 F.2d 1259, 1261 (5th Cir.1975), so that a railroad worker who has a cause of action under the FELA cannot sue under state tort law instead. As an original matter one might have ascribed the absence of such cases to the fact that the FELA as it is written creates liability only for negligence, see 45 U.S.C. Sec. 51, and most of the tort cases brought by railroad workers in which a defense based on the Railway Labor Act is raised have charged wrongful discharge or intentional infliction of emotional distress, which are both intentional torts. Yet the FELA has been interpreted to reach at least some intentional torts. See, e.g., Jamison v. Encarnacion, 281 U.S. 635, 641, 50 S.Ct. 440, 442, 74 L.Ed. 1082 (1930); Civil v. Waterman S.S. Corp., 217 F.2d 94, 98 (2d Cir.1954); Besta v. Consolidated Rail Corp., 580 F.Supp. 869 (S.D.N.Y.1984). Although Civil was a case under the Jones Act, which is a statute for the protection of seamen and other maritime workers, rather than under the FELA, the Jones Act incorporates by reference the FELA's standard of liability. See 46 U.S.C. Sec. 688(a).

Granted, interpreting the FELA to reach intentional torts does some violence to the structure as well as the language of the statute. The statute's main purpose was to eliminate a number of traditional defenses to tort liability: contributory negligence, contractual waiver of liability, the fellow-servant rule, assumption of risk. See 45 U.S.C. Secs. 51, 53-55; H.R.Rep. No. 1386, 60th Cong., 1st Sess. (1908); S.Rep. No. 460, 60th Cong., 1st Sess. (1908); S.Rep. No. 661, 76th Cong., 1st Sess. ...