851 F.2d 1249 (10th Cir. 1988), 86-1088, McAlester v. United Air Lines, Inc.

Docket Nº:86-1088, 86-1130.
Citation:851 F.2d 1249
Party Name:Walter McALESTER, Plaintiff-Appellee, v. UNITED AIR LINES, INC., a Delaware Corporation, Defendant-Appellant.
Case Date:July 14, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1249

851 F.2d 1249 (10th Cir. 1988)

Walter McALESTER, Plaintiff-Appellee,

v.

UNITED AIR LINES, INC., a Delaware Corporation, Defendant-Appellant.

Nos. 86-1088, 86-1130.

United States Court of Appeals, Tenth Circuit

July 14, 1988

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[Copyrighted Material Omitted]

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Irvin M. Kent, Aurora, Colo. (John Mosby, Denver, Colo., with him on the briefs), Aurora, Colo., for plaintiff-appellee.

Robert P. Casey, Chicago, Ill. (P. Kathleen Lower of Morris & Lower, Denver, Colo., with him on the briefs), for defendant-appellant.

Before McKAY, TACHA and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Defendant United Air Lines, Inc., appeals from a jury verdict granting damages to plaintiff Walter McAlester in a racially discriminatory discharge claim under 42 U.S.C. Sec. 1981. United also appeals the district court's order reinstating McAlester to his employment with United.

United asserts the district court lacked subject matter jurisdiction over McAlester's Sec. 1981 claim because the Railway Labor Act (RLA), 45 U.S.C. Secs. 151-188, gives adjustment boards exclusive jurisdiction over disputes arising under a collective bargaining agreement, 45 U.S.C. Sec. 153, First (i).

In the alternative, United asserts the district court erred: (1) by denying its motion for judgment notwithstanding the verdict because McAlester failed to prove intentional race discrimination; (2) by denying its motion for new trial because the jury's verdict was against the manifest weight of evidence; (3) by admitting statistical evidence;

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and, (4) by excluding the written grievance and arbitration decisions upholding McAlester's discharge.

We hold, for the reasons stated in this opinion, that the RLA does not preclude a federal court's jurisdiction over a Sec. 1981 claim of racial discrimination. We AFFIRM the district court on the other issues.

I. Jurisdiction

We are called upon to determine whether an airline employee's Sec. 1981 claim of racial discrimination is barred by the RLA. The Supreme Court has not expressed a view on this issue. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 456-57 n. 3, 95 S.Ct. 1716, 1718 n. 3, 44 L.Ed.2d 295 (1975).

Section 1981 1 was adopted as Sec. 1 of the Civil Rights Act of 1866, 14 Stat. 27, and then reenacted by the Civil Rights Act of 1870, 16 Stat. 144. It was adopted pursuant to authority granted under the Thirteenth Amendment. It relates primarily to racial discrimination in the making and enforcing of contracts. Johnson, 421 U.S. at 459, 95 S.Ct. at 1719.

The RLA was enacted in 1926 to promote stability in labor-management relations by providing effective and efficient remedies for resolution of railroad employee disputes concerning "rates of pay, rules, or work conditions arising under collective bargaining agreements." 45 U.S.C. Sec. 153, First (i). The Act was extended to airlines in 1936. 45 U.S.C. Sec. 181. The RLA provides a comprehensive framework for resolution of "major" and "minor" disputes in the railroad and airline industries. "Minor disputes" are controversies over the meaning of an existing collective bargaining agreement in a particular fact situation generally involving one employee. They may be contrasted with "major disputes" which result when there is disagreement in the bargaining process for a new contract. See Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S. 711, 722-24, 65 S.Ct. 1282, 1289-90, 89 L.Ed. 1886 (1945); United Transp. Union (C) and (T) v. Union Pac. R.R. Co., 812 F.2d 630, 632 (10th Cir.1987). Minor disputes are subject to internal grievance process and if not settled, are submitted to an adjustment board. Judicial review of these boards' determinations has been characterized as "among the narrowest known to the law," Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 91, 99 S.Ct. 399, 401, 58 L.Ed.2d 354 (1978), reh. denied 439 U.S. 1135, 99 S.Ct. 1060, 59 L.Ed.2d 98 (1979), being limited to review for the board's failure to comply with the RLA, for a decision beyond the board's jurisdiction or fraud, 45 U.S.C. Sec. 153, First (q).

United asserts for the first time, on appeal, that the Railway Labor Act precludes the district court's subject matter jurisdiction over McAlester's Sec. 1981 claim. The general rule is that subject matter jurisdiction may be challenged by a party or raised sua sponte by the court at any point in the proceeding. E.g., American Fire & Casualty Co. v. Finn, 341 U.S. 6, 16-19, 71 S.Ct. 534, 541-43, 95 L.Ed. 702 (1951); Harris v. Illinois-California Express, Inc., 687 F.2d 1361, 1366 (10th Cir.1982); Fed.R.Civ.P. 12(h)(3).

United asserts McAlester's Sec. 1981 claim that he was disciplined less favorably than whites, arose under his union contract. 2 Therefore, the RLA's jurisdiction over contractual issues bars de novo judicial review. United cites in support Evans v. Central of Ga. R.R. Co., 619 F.Supp. 1364 (N.D.Ga.1985). The district court in Evans held where the source of plaintiff's Sec. 1981 claim is the collective bargaining agreement, de novo judicial review is barred. McAlester asserts Evans is wrongly decided

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because the RLA does not require a plaintiff alleging racial discrimination to exhaust his contractual remedies before bringing a civil rights action.

In Evans, a black railroad employee brought actions for discriminatory treatment based on race, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and Sec. 1 of the 1866 Civil Rights Act, 42 U.S.C. Sec. 1981. The district court allowed the Title VII claim to proceed but dismissed the Sec. 1981 claim stating the RLA vests exclusive jurisdiction with the adjustment boards to hear "minor" disputes through its grievance procedure. The district court reasoned that 42 U.S.C. Sec. 1981 relates primarily to racial discrimination in the making and enforcing of contracts. Id. at 1366. The RLA grants exclusive jurisdiction to an adjustment board to determine "minor disputes" which relate to the meaning or proper application of a particular provision of a collective bargaining agreement to one or more individuals. The district court determined plaintiff's Sec. 1981 claim was a "minor dispute" because plaintiff asserted that the disciplinary and work provisions of his collective bargaining agreements were applied by the defendant in a discriminatory manner. Id. at 1368.

We decline to follow Evans for the following reasons. First, Evans can be distinguished on the basis of the allegations in the complaint. In Evans, the court found the gravamen of plaintiff's Sec. 1981 claims was that the disciplinary provisions of his collective bargaining agreement were applied by the defendants in a discriminatory manner. Id. at 1368. McAlester does not allege that his claim of racial discrimination is based upon violation of the collective bargaining agreement. Rather, McAlester asserts the disparate disciplinary actions of United violate 42 U.S.C. Sec. 1981. Under the RLA, while the courts have no jurisdiction to hear airline employee claims based solely upon the contract, the courts do have jurisdiction over claims based upon federal statutes. Stevens v. Braniff Airways, Inc., 490 F.Supp. 231 (D.Minn.1980) (contract claim dismissed for lack of jurisdiction under RLA, but sex discrimination claim under 42 U.S.C. Sec. 2000e allowed to proceed).

Second, the RLA does not repeal or preempt claims under Sec. 1981. The RLA contains no language which could be remotely construed as directly repealing Sec. 1981. If the RLA does repeal Sec. 1981, this repeal can be found only by implication. It is a cardinal rule that repeal by implication is not favored. Morton v. Mancari, 417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974); City and County of Denver v. Bergland, 695 F.2d 465, 475 (10th Cir.1982). In determining whether such a finding is proper, the court is guided by the following principles:

There are two well-settled categories of repeals by implication--(1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest.

Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936); Bartlett v. United States, 166 F.2d 920, 926 (10th Cir.1948).

In order for preemption to occur, the differences between the RLA and Sec. 1981 must be "irreconcilable." Moreover, it is not enough that some similarity of subject matter can be found. The later act must cover the "whole subject matter" so that it is "clearly intended as a substitute." United has cited no case which finds either of these tests met in the present context, and the court's research has likewise revealed none. In fact, the RLA contains a provision that "[n]othing in this [Act] shall be construed to require an individual employee to render labor or service without his consent." 45 U.S.C. Sec. 159, Eighth. The legislative history of the RLA indicates that this subsection was included to clarify that the RLA did not abridge any of the protections of employee rights under the Thirteenth Amendment. Senate Subcommittee on Labor of the Committee on Labor and Public Welfare, 93d Cong., 2d Sess., Legislative

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History of the Railway Labor Act, As Amended, 286-88 and 332 (Comm.Print 1974).

Based upon a review of the legislative history, the court cannot conclude that these statutes are irreconcilable or that the RLA covers the subject matter of racial discrimination in contracting or was clearly intended as a substitute for Sec. 1981. In Colorado Anti-Discrimination Comm'n v. Continental Airlines, Inc., 372 U.S. 714, 83 S.Ct. 1022,...

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