Kelley v. Norfolk & Southern Railway Co.

• Decision Date: 28 December 1999
• Docket Number: No. 3:99-0730.,3:99-0730.
• Citation: 80 F.Supp.2d 587
• Parties: Grady Colin KELLEY, Plaintiff, v. NORFOLK & SOUTHERN RAILWAY COMPANY, dba Norfolk & Western Railway Company, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

Page 587

80 F.Supp.2d 587

Grady Colin KELLEY, Plaintiff, v. NORFOLK & SOUTHERN RAILWAY COMPANY, dba Norfolk & Western Railway Company, Defendant.

No. 3:99-0730.

United States District Court, S.D. West Virginia, Huntington Division.

December 28, 1999.

Thomas M. Plymale, Wayne, WV, Charles W. Armbruster, III, Wood River, IL, for plaintiff.

J.H. Mahaney, Huntington, WV, for defendant.

MEMORANDUM OPINION AND ORDER

GOODWIN, District Judge.

The plaintiff Grady C. Kelley filed an action against Norfolk Southern Railway Company (Norfolk) in the Circuit Court of Wayne County, West Virginia, alleging that Norfolk unlawfully retaliated against him for filing an earlier personal injury case. Kelley's claim is for the emotional distress he allegedly suffered as a result of Norfolk's retaliatory acts. Norfolk removed to this Court asserting that one who complains about retaliation for the filing of a personal injury action is limited to relief under the whistleblower protections of the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20101 et seq.

Pending is Kelley's motion to remand to state court, which presents the questions of whether the provisions of the FRSA preempt this action, or in the alternative, whether the action is preempted by the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq. With respect to the FRSA, the Court must determine whether Kelley's earlier filing of a personal injury action under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq., constitutes the reporting of a safety violation within the meaning of the FRSA whistle-blower statute, 49 U.S.C. § 20109. With respect to the RLA, the Court must determine whether Kelley's action constitutes a "minor dispute" that the RLA preempts.

For the reasons discussed below, the Court GRANTS Kelley's motion to remand.

I.

The facts as alleged by plaintiff are sparse. Kelley was employed by Norfolk when he suffered injuries while on the job in October 1990.¹ Kelley then filed a personal injury action in state court against Norfolk under FELA. This Court learned during the initial management conference held on October 22, 1999 that Kelley recovered a jury verdict in state court in excess of $700,000. The verdict is now on appeal to the West Virginia Supreme Court of Appeals.

The complaint alleges that after Kelley filed his personal injury action under FELA, Norfolk retaliated against him by intentionally causing him "to suffer severe mental anguish and emotional distress." More specifically, Kelley alleges that Norfolk:

(a) Created a work environment hostile to all employees injured while on the job;

(b) Made it known that any employee who files a claim for an on-the job injury would be severely reprimanded and/or terminated;

(c) Used armed agents to invade Plaintiff's privacy and conduct surveillance on a near constant basis for more than one year;

(d) Threatened to have Plaintiff criminally prosecuted unless he voluntarily dismissed his lawfully filed claim under the Federal Employer's (sic) Liability Act for injuries received while on the job on October 11, 1990.

(Compl. ¶ 4.)

On June 29, 1999, Kelley filed this suit in the Circuit Court of Wayne County, West Virginia, asserting two causes of action for intentional infliction of emotional distress. Count I seeks relief under FELA. Count II requests relief under West Virginia common law. Norfolk removed the action to this Court pursuant to 28 U.S.C. § 1446 on the ground that Kelley's claims arise under federal law because they are "completely preempted" by both the whistleblower protections of the FRSA, 49 U.S.C. § 20109, and the RLA. Kelley now requests this Court to remand the case to state court and to award him the attorney's fees and costs incurred in the preparation of the motion.

II.

The propriety of removal to a federal district court depends on whether the action comes within the scope of the district court's subject matter jurisdiction. 28 U.S.C. § 1441(b). An action may be removed only if it could have been brought in federal court originally. When a defendant removes a case on the basis of federal question jurisdiction, the defendant bears the burden of proving the existence of a federal question. Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir.1994).

Under the well-pleaded complaint rule, "federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). As the United States Supreme Court explained, the well-pleaded complaint rule "makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Id. Kelley's first claim alleges intentional infliction of emotional distress pursuant to FELA. A FELA action may be filed in federal court or in state court. See 45 U.S.C. § 56. Once filed in state court, however, a FELA claim may not be removed to federal court unless the complaint contains a separate and independent federal question claim. See 28 U.S.C. § 1445(a). It is undisputed that Kelley's second claim, which relies entirely on state common law, is not a federal question claim.

A defense of federal preemption ordinarily does not invoke federal jurisdiction. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) ("As a defense, it does not appear on the face of a well-pleaded complaint, and therefore, does not authorize removal to federal court"). However, the "complete preemption" doctrine is an exception to the well-pleaded complaint rule. Id. at 65, 107 S.Ct. 1542; Rayner v. Smirl, 873 F.2d 60, 63 (4th Cir.1989). Under the "complete preemption" doctrine, if a federal statute so completely preempts an area of state law, "any claim purportedly based on that preempted state law is considered, from its inception, a federal claim, and therefore arises under federal law." Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425; Rayner, 873 F.2d at 63. Norfolk argues that the "complete preemption" doctrine is applicable here because Kelley's claims are completely preempted by both the FRSA and the RLA.

Federal preemption is a question of congressional intent. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516-17, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Courts must examine the text and structure of a statute to determine if it is the "clear and manifest purpose of Congress to preempt an area of state law." CSX Transp. v. Easterwood, 507 U.S. 658, 662-64, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993); Peters v. Union Pac. R.R. Co., 80 F.3d 257, 261 (8th Cir.1996). The Court reviews Norfolk's preemption arguments under the FRSA and RLA seriatim.

III.

In 1970, Congress enacted the FRSA "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101; Pub.L. No. 91-458, 84 Stat. 971, as amended, 49 U.S.C. § 20101 et seq. In the 1980 amendments to the FRSA, Congress afforded explicit protection to railroad "whistleblowers." See Federal Railroad Safety Authorization Act of 1980, Pub.L. No. 96-423, § 10, 94 Stat. 1815 (1980); see also Rayner, 873 F.2d at 63. The amendments expressly prohibit railroads from discharging or discriminating against an employee who reports a railroad safety violation, and they provide a federal remedy to employees who claim that they have been discharged or retaliated against for reporting safety violations. Rayner, 873 F.2d at 63.

Norfolk contends that the FRSA, specifically the whistleblower protection statute at 49 U.S.C. § 20109(a), provides an exclusive remedy to Kelley for the alleged retaliation resulting from his prior filing of a FELA personal injury action. Accordingly, Norfolk argues that Kelley's claims for intentional infliction of emotional distress are completely preempted.²

Before addressing this issue of exclusivity, the Court must first determine whether the FRSA provides a remedy to Kelley at all.³ 49 U.S.C. § 20109(a)⁴ provides that:

A railroad carrier engaged in interstate or foreign commerce may not discharge or in any way discriminate against an employee because the employee, whether acting for the employee or as a representative, has —

(1) filed a complaint or brought or caused to be brought a proceeding

related to the enforcement of this part or, as applicable to railroad safety, chapter 51 or 57 of this title; or

(2) testified or will testify in that proceeding.

The first question presented by the pending motion is whether Kelley's filing of a FELA personal injury action constitutes the taking of an action "related to the enforcement of [railroad safety]" within the meaning of § 20109.

Norfolk argues that § 20109 is applicable to Kelley's claims because the filing of a personal injury action is an action related to railroad safety. That is, Norfolk maintains that a personal injury action filed by an employee necessarily implicates railroad safety laws because a violation of a safety regulation may be the cause of the injury. Therefore, according to Norfolk, retaliation against an employee for filing a personal injury action is encompassed by the broad protections of § 20109.

Norfolk cites no apposite authority in support of its argument. Instead, Norfolk relies heavily on Rayner for the proposition that the FRSA, including the provisions of § 20109, "should be broadly construed to effectuate the congressional purpose" of the FRSA and the employee protections contained therein. Rayner, 873 F.2d at 63. In Rayner, a former locomotive engineer who was promoted to a supervisory position alleged that he observed several safety violations and reported them to his superiors at the railroad company. Id. at 62. He was later removed from his supervisory position and reassigned to a different location. Id. The plaintiff filed suit, asserting state law wrongful discharge claims, and alleging that the railroad...