Bintner v. Burlington Northern, Inc.

• Decision Date: 28 June 1994
• Docket Number: No. 93-CV-1040-J.,93-CV-1040-J.
• Citation: 857 F. Supp. 1484
• Parties: Jody K. BINTNER, Plaintiff, v. BURLINGTON NORTHERN, INC., a Delaware corporation, Defendant.
• Court: U.S. District Court — District of Wyoming

857 F. Supp. 1484

Jody K. BINTNER, Plaintiff, v. BURLINGTON NORTHERN, INC., a Delaware corporation, Defendant.

No. 93-CV-1040-J.

United States District Court, D. Wyoming.

June 28, 1994.

Les Bowron, Frank R. Chapman, Beech Street Law Offices, Casper, WY, for Jody K. Bintner.

George E. Powers, Jr., John A. Coppede, Sundahl, Powers, Kapp & Martin, Cheyenne, WY, Lawrence M. Stroik, Burlington Northern Railroad Co., Fort Worth, TX, for Burlington Northern Inc., Burlington Northern Railroad Co.

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS

ALAN B. JOHNSON, Chief Judge.

The defendant's Motion to Dismiss came before the Court for hearing on March 24, 1994. Appearing for plaintiff were Les Bowron and Frank Chapman of Casper, Wyoming; appearing for defendant were George Powers and John Coppede of Cheyenne, Wyoming and Lawrence M. Stroike of Fort Worth, Texas (by telephone conference call). The Court, having considered the defendant's motion, the plaintiff's responses thereto, the arguments of counsel, and being fully advised in the premises, FINDS and ORDERS as follows:

Background

In plaintiff's complaint, she claims she was subjected to sexual harassment and hostile working conditions while she was employed by defendant as a locomotive engineer. She asserts federal and state claims of sex discrimination under 42 U.S.C. § 2000e and Wyo.Stat. § 27-9-101(a)(i), breach of public policy pursuant to 42 U.S.C. § 1981a and the public policy of the state of Wyoming, breach of contract, wrongful discharge, constructive firing, breach of collective bargaining agreement, intentional infliction of emotional distress, negligence, and breach of covenant of good faith and fair dealing. Her claims are brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(3), Wyo. Stat. § 27-9-101 et seq., and the federal and state constitutions.

Plaintiff claims she was subjected to sexual harassment in the form of a hostile work environment. Plaintiff alleges specifically that she was required to work in an environment which included propositions for sexual favors, physical attack, verbal catcalls and vulgarity, and written comments of a sexual and perverted nature. She claims she worked in an environment that demeaned women by virtue of sexual cartoons and graffiti on engines and cabooses, pictures and sexual graffiti on the walls of the defendant's facilities, specifically using plaintiff's name and suggesting that she participated in lewd and lascivious acts. Plaintiff alleges that this sort of activity went on for several years prior to the time she was forced to take medical and psychological leave from her position due to severe emotional distress.

Plaintiff asserts that she complained to authorized personnel and her Union agent, who in turn forwarded her complaint to the defendant. The defendant, she alleges, failed to take responsive action to eliminate or alleviate the hostile work environment. Plaintiff seeks damages including loss of wages, past, present and future, loss of earning capacity, loss of income, loss of fringe benefits including retirement, loss of enjoyment of life, severe emotional pain and suffering, mental anguish, consequential damages, costs and attorney's fees, and other damages to be proven at trial.

The defendant has filed a motion to dismiss alleging that arbitration under the Railway Labor Act provides the exclusive means of redress for plaintiff's claims. Defendant also asserts that plaintiff has failed to exhaust her state administrative remedies, that her claims for breach of covenant of good faith and fair dealing and violation of public policy are foreclosed as a matter of law in Wyoming, and that her claim for intentional infliction of emotional distress is preempted by federal law.

The defendant relies on the Supreme Court decision, Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), as support for the argument that the Railway Labor Act requires all minor disputes, including those which are incidental to employment as well as those arising under or concerning the collective bargaining agreement, to be the subject of mandatory arbitration.

Plaintiff opposes the motion to dismiss, contesting the motion only as to her first, second, third and fifth claims for relief. In her responsive pleading, plaintiff stipulates that her fourth claim for relief (breach of contract) and seventh claim for relief (breach of covenant of good faith and fair dealing) must be dismissed as they involve interpretation of the underlying collective bargaining agreement. Plaintiff also stipulates that her sixth cause of action, negligence, may also be dismissed, relying on this Court's prior decision in Wagner v. Campbell County, Wyoming, 695 F.Supp. 512 (D.Wyo.1988).

However, plaintiff urges that all federal and state statutory and common law tort claims which clearly do not require an interpretation of the collective bargaining agreement must survive the defendant's motion to dismiss, relying upon the Tenth Circuit's decision in Davies v. American Airlines, Inc., 971 F.2d 463 (10th Cir.1992).

Standard of review for motions to dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

The Tenth Circuit, in Pitts v. Turner and Boisseau Chartered, 850 F.2d 650, 652 (10th

Cir.1988), cert. denied in 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989) (quoting Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.), set forth the standard of review for dismissals pursuant to Fed.R.Civ.P. 12(b)(6):

In reviewing a dismissal for failure to state a claim, we must accept as true the plaintiff's well-pleaded factual allegations and all reasonable inferences must be indulged in favor of the plaintiff. Dismissal is appropriate only if `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' (Citations omitted.)

In considering a motion to dismiss, a court must take the allegations of the complaint at face value and must construe them most favorably to the plaintiff. The allegations in the plaintiff's complaint are presumed true. Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). A court should not grant a motion to dismiss unless it appears beyond doubt that the plaintiff could prove no set of facts supporting the claim which would entitle plaintiff to relief. Huxall v. First State Bank, 842 F.2d 249, 250-51 (10th Cir.1988). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Miller v. Glanz, 948 F.2d at 1565.

Discussion

1. Arbitration

The Court concludes that the plaintiff is not barred from bringing her Title VII claims by the Railway Labor Act. No one has offered any evidence that the collective bargaining agreement requires employees to submit individual statutory claims to arbitration.

Defendant has relied on Gilmer v. Interstate-Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), in support of its contention that the Railway Labor Act requires that plaintiff's claims be submitted to mandatory arbitration under the collective bargaining agreement. This Court disagrees that Gilmer is dispositive.

In Gilmer, the plaintiff had brought suit against his employer in federal court, alleging that he had been discharged from his employment in violation of the Age Discrimination in Employment Act of 1967 (ADEA). The employer moved to compel arbitration of plaintiff's ADEA claim. In that case, the plaintiff, in his application for registration as a securities representative, had agreed "to arbitrate any dispute, claim or controversy" arising between him and his employer. Gilmer, 500 U.S. at 21-22, 111 S.Ct. at 1650. Plaintiff argued that the arbitration agreement he had signed required arbitration only of contractual disputes. The Supreme Court concluded that the agreement he had signed, however, also required the arbitration of his statutory claims, and held that the agreement therefore barred plaintiff's ADEA claim. The Supreme Court stated that:

Although all statutory claims may not be appropriate for arbitration, "having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue."

Gilmer, 500 U.S. at 26, 111 S.Ct. at 1652, quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). The principle that derives from Gilmer and Mitsubishi is that "individual employees who agree to arbitrate disputes with their employers must arbitrate Title VII claims." Claps v. Moliterno Stone Sales, Inc., 819 F.Supp. 141, 145 (D.Conn.1993).¹

Applying the Claps court's analysis, this Court finds that the collective bargaining agreement does not require arbitration of plaintiff's statutory Title VII claim in this case. Claps v. Moliterno Stone Sales, Inc., 819 F.Supp. 141 (D.Conn.1993). The Claps v. Moliterno Stone Sales, Inc. court rejected the same argument advanced by the defendant in this case, stating that:

The defendants' challenge to the plaintiff's Title VII claims would, in effect, require the court to hold that collective-bargaining agreements may require employees to arbitrate both contractual and statutory claims. Neither Gardner-Denver Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) nor Gilmer supports this conclusion. First, the holding in Gardner-Denver was based on the assumption that the collective-bargaining process could, in some circumstances, pose a threat to the protection of individual statutory rights. The Court noted that collective bargaining is a "majoritarian process" that may subordinate the interests of individual employees to the good of

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