Harris-Scaggs v. Soo Line R. Co.

• Decision Date: 06 May 1998
• Docket Number: No. 97-C-0164.,97-C-0164.
• Citation: 2 F.Supp.2d 1179
• Parties: Theresa HARRIS-SCAGGS and Wesley Scaggs, Plaintiffs, v. SOO LINE RAILROAD CO., d/b/a C.P. Rail System and ABC Insurance Co., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

2 F.Supp.2d 1179

Theresa HARRIS-SCAGGS and Wesley Scaggs, Plaintiffs, v. SOO LINE RAILROAD CO., d/b/a C.P. Rail System and ABC Insurance Co., Defendants.

No. 97-C-0164.

United States District Court, E.D. Wisconsin.

May 6, 1998.

Janet L. Heins, Heins Law Office, Mequon, WI, for Plaintiffs.

Susan M. Robinger, Barry McGrath, Ellen G. Sampson, Daniel L. Palmquist, Leonard, Street & Deinard, Minneapolis, MN, for Defendants.

DECISION AND ORDER

ADELMAN, District Judge.

This opinion addresses the preemptive scope of the Federal Employers' Liability Act ("FELA" or "Act"), 45 U.S.C. §§ 51-60, and, specifically, the viability of non-FELA claims for negligent and intentional infliction of emotional distress, when brought by a railroad employee against her employer.

Plaintiffs Theresa and Wesley Harris-Scaggs have filed this action in federal court under Title VII of the Civil Rights Act of 1964, as amended, alleging that Ms. Harris-Scaggs' former employer Soo Line Railroad Company ("Soo Line") intentionally discriminated against her on the basis of her race. Specifically, the plaintiffs claim that Soo Line subjected Ms. Harris-Scaggs, an African-and Native-American woman, to more frequent and intrusive inquiries into her reasons for missing work than white employees and generally maintained a work environment hostile to non-whites. The plaintiffs allege several specific incidents in which Soo Line management failed to respond to racially derogatory comments made by supervisors and co-workers, despite being notified of the incidents by Ms. Harris-Scaggs.

In addition to their Title VII claim, the plaintiffs plead three supplemental tort claims based on state law and arising out of the same factual allegations—negligent infliction of emotional distress, intentional infliction of emotional distress, and loss of consortium. This court exercises jurisdiction pursuant to 28 U.S.C. § 1331 and § 1367.

Defendant Soo Line has moved to dismiss the three supplemental claims, arguing that the claims are preempted by the FELA. Although the plaintiffs have opposed dismissal on only the intentional infliction of emotional distress claim and the related claim for loss of consortium, I am denying the motion to dismiss on all three claims for the reasons set forth below.

I.

Congress enacted an early version of the FELA in 1908, establishing the basic contours of this federal statute, drafted in response to the rising toll of serious injuries and death among workers in the railroad industry. The FELA creates a federal tort remedy for railroad employees injured on the job and "provide[s] the framework for determining liability for industrial accidents." Kernan v. American Dredging Co., 355 U.S. 426, 432, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958). The FELA section pertaining to liability states that "[e]very common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier ..." 45 U.S.C. § 51. The liability framework itself abolishes the fellow servant rule; subsequent sections of the FELA prohibit the use of other traditional common-law defenses such as contributory negligence, assumption of risk, and contractually based immunity. See 45 U.S.C. §§ 51, 53-55.

The origins of the FELA might lead one to believe it is a workers' compensation statute, like so many passed in the industrial era, but this is not the case. See Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). The FELA differs from workers' compensation schemes in several respects. Most significant for our purposes, the FELA does not include an explicit exclusive remedy provision, always an essential component of a workers' compensation act. See, e.g., in the Wisconsin Worker's Compensation Act, Wis. Stat. § 102.03(2) (providing that when conditions of liability are satisfied "the right to recovery of compensation under this chapter shall be the exclusive remedy against the employer ...") The absence in the FELA of express federal preemption of other tort actions reflects the Act's distinct legislative goal. Unlike the strict liability workers' compensation statutes of the same period, which primarily sought to shift financial losses and delimit compensable injuries so as to protect young industries while still ensuring minimal compensation, the FELA established a fault-based notion of liability, aimed at encouraging higher safety standards in the especially treacherous railroad industry. See Rogers v. Consol. Rail Corp., 948 F.2d 858, 860-61 (2nd Cir.1991). Thus, although railroads had no recourse to common-law defenses, injured employees still had to prove negligence in order to recover, giving employers an enhanced incentive to maintain safe working environments. Conversely, although railroad workers injured on the job were not guaranteed financial recovery, their ability to bring other actions against their employers was not so severely limited by statutory decree.

Over the years, the FELA has been interpreted by courts to preempt certain state tort claims, but not to the vast, comprehensive extent suggested by Soo Line in this action. The defendant's argument for preemption rests on two related propositions. First, the defendant asserts that claims for both negligent infliction of emotional distress and intentional infliction of emotional distress are, generically and without exception, "cognizable" under the FELA. The court disagrees with this assertion. Second, the defendant asserts that since plaintiffs' claims are theoretically "cognizable" under the FELA (though concededly not "valid" or subject to compensation), the claims are preempted because the FELA "occupies the field" of employer liability for on-the-job injuries to railroad workers. I disagree with this assertion, as well, because I find the distinction made by defendant—between cognizable but non-compensable FELA claims— to be artificial and unsupported by case law, and because neither the FELA nor constitutional preemption doctrine requires me to preempt state claims which do not interfere with the federal statute's legislative purpose. Because my reasoning applies equally to claims for both negligent and intentional infliction of emotional distress, the claims are discussed together below.

II.

Since Lancaster v. Norfolk & Western Ry., 773 F.2d 807(7th Cir.1985), the law in the Seventh Circuit has been settled that "the FELA does not reach torts which work their harm through nonphysical means." Id. at 815; see also Ray v. Consolidated Rail Corp., 938 F.2d 704 (7th Cir.1991).

[T]he FELA does not create a cause of action for tortious harms brought about by acts that lack any physical contact or threat of physical contact—an act such as telling a man he's fired ... Even firing a worker in retaliation for bringing an FELA suit against his employer does not violate the FELA.

Lancaster at 813, 815. The Seventh Circuit implicitly based its conclusion about the scope of the FELA remedy on the recognized historical purpose of the Act—to eliminate traditional tort defenses to liability in the railroad context, thereby making recovery easier for employees and dangerous working conditions more costly for employers. See id. at 812-15. In rejecting a Fifth Circuit analysis finding a valid FELA cause of action for overworked, stressed-out clerical employees, the Seventh Circuit made its position clear: "That is not our idea of an FELA claim; it has nothing to do with the security of the person from physical invasions or menaces." Id. at 813 (rejecting Yawn v. Southern Ry., 591 F.2d 312 (5th Cir.1979)).

Lancaster's insistence that an FELA claim must allege injury brought on by physical harm or by the threat of physical harm is analytically distinct from the question of whether the FELA allows recovery for purely emotional injury. Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994), addressed the latter inquiry. In Gottshall, the United States Supreme Court resolved at least half of the question left unanswered by Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987), seven years earlier. Buell had declined to decide whether "emotional injury" is cognizable under the FELA because such a decision, in the context of a claim for either intentional or negligent infliction of emotional distress, "might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity." Buell, 480 U.S. at 568, 107 S.Ct. 1410. Gottshall limits itself to the claim of negligent infliction of emotional distress, but nevertheless "field[s] the Buell pitch." Gottshall, 512 U.S. at 562, 114 S.Ct. 2396.

Although Gottshall, in a sense, was responding to a different question, the Supreme Court arrived at the same answer as the Seventh Circuit did in Lancaster. Specifically, the Court found that "an emotional injury constitutes "injury" resulting from the employer's "negligence" for the purposes of FELA only if it would be compensable under the terms of the zone of danger test." Gottshall at 555, 114 S.Ct. 2396 (referring to 45 U.S.C. § 51). The common-law zone of danger test "limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct." Id. at 547-48. The Supreme Court's familiar rationale for importing the zone of danger analysis into FELA jurisprudence was that the test was "consistent with FELA's central focus on physical perils." Id. at 555. Not only is the zone of danger test virtually identical to the Seventh Circuit rule of "no FELA claims for injuries caused by nonphysical means," the Supreme Court cites Lancaster...