Poole v. Burlington Northern R. Co.

Decision Date16 June 1997
Docket NumberNo. 4:96CV3035.,4:96CV3035.
Citation987 F.Supp. 753
PartiesTimothy H. POOLE, Plaintiff, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware corporation, Defendant.
CourtU.S. District Court — District of Nebraska

James L. Cox, Jr., Morrisard, Rossi, Cox, Kiker & Inderwish, Aurora, CO, for plaintiff.

Charles W. Shewmake, Burlington Northern Railroad Company, Fort Worth, TX, Douglas J. Peterson, Knudsen, Berkheimer, Richardson & Endacott, Lincoln, NE, for defendant.


KOPF, District Judge.

Timothy Poole, a former employee of defendant Burlington Northern Railroad Company ("BN"), brings this action under Nebraska law for damages and equitable remedies arising out of BN's termination of Poole's employment after Poole allegedly had alcohol on his breath while on railroad property at a time when Poole was off duty. In this diversity action, Poole alleges that BN's investigation and termination of him (1) violated Neb.Rev.Stat. § 48-1903 (Michie 1995), the Nebraska statute that governs use of drug and alcohol tests on employees; (2) violated the Nebraska Fair Employment Practice Act, Neb.Rev.Stat. §§ 48-1101 to -1125 (Michie 1995); (3) constituted intentional infliction of emotional distress; and (4) constituted invasion of privacy by placing Poole before the public in a false light pursuant to Neb.Rev.Stat. § 20-204 (Michie 1995). (Filing 1 ¶¶ 1-3 and 63-89.1)

Pending before the court is BN's motion for summary judgment (filing 13), in support of which BN makes these arguments: (1) Poole's four claims are preempted by the mandatory and exclusive dispute resolution procedures set forth in the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-163, 181-188, and the parties' collective bargaining agreement ("CBA") ("forum preemption"); (2) Poole's claim that BN violated the Nebraska alcohol- and drug-testing statute, Neb.Rev. Stat. § 48-1903, is preempted because Congress has occupied the field with respect to alcohol-testing requirements for railroad employees ("field preemption") and, alternatively, Neb.Rev.Stat. § 48-1903 is inapplicable to this case; and (3) Poole has failed to establish the elements of his claims for intentional infliction of emotional distress and invasion of privacy. (Def.'s Br.Supp. Def.'s Mot. Summ.J. at 2-3.) BN has submitted evidence in support of its claims (filings 14 & 16).

Poole also has submitted a brief and evidence (filing 27) in response to BN's motion for summary judgment, arguing that: (1) the forum preemption doctrine is inapplicable because none of Poole's claims depend for their resolution on interpretation of the parties' collective bargaining agreement and the CBA is not the only source of Poole's state claims; (2) the field preemption doctrine is inapplicable because BN has not established Congress' clear and manifest purpose to preempt the field as to alcohol testing of railroad employees who are off duty; and (3) Poole has established the elements of his intentional infliction of emotional distress and invasion of privacy claims. Because Poole concedes that he cannot prevail on his Nebraska Fair Employment Practice Act claim, I shall dismiss that claim. (Pl.'s Br. Opp'n Def.'s Mot. Summ.J. 9-31.)

For the reasons discussed below, I shall grant BN's motion for summary judgment (filing 13) on all claims except Poole's false light invasion of privacy claim.


1. Defendant BN is a corporation organized and existing under the laws of Delaware and is engaged in the business of a common carrier by rail in several states, including Nebraska. (Filing 1, Complaint ¶ 1; Filing 8, Answer ¶ 1.)

2. Plaintiff Poole was employed by BN in various positions, including conductor, from June 26, 1978, until May 30, 1995. (Filing 1, Complaint ¶ 2; Filing 8, Answer ¶ 2.) While employed by BN, Poole was a member of the collective bargaining unit represented by the United Transportation Union ("UTU") pursuant to a collective bargaining agreement ("CBA") between UTU and BN. (Filing 16, Aff. John H. Waldron ¶ 1; Filing 1, Complaint ¶ 70.)

3. Sometime after April 21, 1995, Poole received a letter written by BN supervisor E.E. Percival requesting that Poole set up an interview with certain individuals before April 21, 1995, to discuss "BN's policies and [BN's] expectations" with Poole regarding his "personal work history." (Filing 27, Ex. C, Aff. Timothy H. Poole ¶ 4 & Attach. A2.) Poole did not receive this letter before April 21, 1995, because the letter was sent to Poole's old address. (Filing 27, Ex. C, Aff. Timothy H. Poole ¶ 4; Filing 14, Ex. F.)

4. On April 24, 1995, Poole was not on duty, as BN had previously granted Poole's request for personal leave on April 24 and 25, 1995. At 10:30 a.m. on April 24, 1995, BN supervisor Mark Bruce telephoned Poole and requested that Poole come to BN's offices in McCook, Nebraska, to be "interviewed" regarding "safety" and "performance" issues, as Percival's letter had requested. Based on Bruce's words and tone of voice, Poole understood that the meeting was mandatory and should occur immediately. Poole agreed to attend the "interview" at 1:30 that afternoon. (Filing 27, Ex. C, Aff. Timothy H. Poole ¶¶ 5, 6, 8; Filing 27, Ex. A 237:22-24; 239:5-12; 411:15-18; 535:21-223; Filing 14, Aff. F.W. Comiskey & Ex. F.)

5. BN supervisors Bruce and Percival were present at the 1:30 p.m. meeting with Poole. (Filing 27, Aff. Timothy H. Poole ¶¶ 9.) During the meeting, the supervisors noticed what they perceived to be an odor of alcohol coming from Poole, after which they offered to refer Poole to a rehabilitation program, which Poole refused. Upon such refusal, Poole was removed from service pending an investigation of Poole's possible violation of Rule 1.5 of the BN General Code of Operating Rules, which restricts drug and alcohol use by employees. (Filing 14, Ex. F; Filing 16, Aff. John H. Waldron ¶¶ 2, 9.)

6. BN Policy V.H.2.c, which is entitled "Application of the Alcohol/Controlled Substances Testing Policy," states in part that "[i]f a supervisor detects the odor of alcohol on an employee, ... the employee shall be removed from service and an investigation scheduled." (Filing 16, Ex. E.)

7. On May 17 and 18, 1995, Poole was the subject of a disciplinary investigation conducted in McCook, Nebraska, by F.W. Comiskey, who at that time was employed by BN as Terminal Superintendent in Denver, Colorado. During the investigation, two BN officers testified that they smelled alcohol on Poole's breath while meeting with him on the afternoon of April 24, 1995, at the McCook, Nebraska, Division Office of Burlington Northern Railroad Company. The officers further testified that they gave Poole an opportunity to submit to a voluntary blood test at a local hospital to confirm his contention that he had not consumed alcohol, and that after conferring with his union representative, Poole declined to submit to a blood test. Poole attended the investigation with his UTU representative, Ray Lineweber. Lineweber was given an opportunity to cross-examine witnesses; call Poole and others to testify as witnesses; and offer evidence on behalf of Poole, all of which he did. (Filing 14, Aff. F.W. Comiskey ¶ 3; Filing 27, Ex. C, Aff. Timothy H. Poole ¶ 16.)

8. Based upon the information developed in the investigation, BN dismissed Poole from his employment on May 30, 1995, for violation of Rule 1.5 of the BN General Code of Operating Rules, which provides:

1.5 Drugs and Alcohol

The use or possession of alcoholic beverages while on duty or on company property is prohibited. Employees must not have any measurable alcohol in their breath or in their bodily fluids when reporting for duty, while on duty, or while on company property.

The use or possession of intoxicants, over-the-counter or prescription drugs, narcotics, controlled substances, or medication that may adversely affect safe performance is prohibited while on duty or on company property, except medication that is permitted by a medical practitioner and used as prescribed. Employees must not have any prohibited substances in their bodily fluids when reporting for duty, while on duty, or while on company property.

(Filing 14, Aff. F.W. Comiskey ¶ 4 & Exs. A & B.)

9. BN Rule 1.5 has been in effect in one form or another at BN and its predecessors for at least 40 years. The predecessor of Rule 1.5 was Rule G, an industry-wide rule against the use or possession of alcohol while on railroad property. Rule 1.5 is still commonly referred to as "Rule G." (Filing 16, Aff. John H. Waldron ¶ 3.)

10. The collective bargaining agreement between BN and UTU allows BN to hold an employee from service pending a disciplinary hearing "in serious cases, such as ... Rule `G' violation[s]." The portions of the CBA submitted as evidence outline procedures for the assessment of discipline such as notice requirements, the right to present witnesses and to be represented, conduct at the hearing, time parameters for the hearing decision, and time limits on appeals. (Filing 14, Ex. H.) The CBA further sets forth deadlines for filing "claims" from disciplinary decisions and subsequent appeals. (Filing 14, Ex. I.)

11. Pursuant to these appeal provisions in the CBA, a UTU local chairman appealed Poole's discharge on July 28, 1995, to a BN division superintendent. Division Superintendent D.L. Maze denied the appeal on September 7, 1995. On November 9, 1995, a UTU general chairman appealed Poole's discharge to D.J. Kozak, BN's Assistant Vice President for Labor Relations. Kozak denied the appeal on January 31, 1996. UTU then submitted Poole's claim to arbitration before Public Law Board No. 3304, an arbitration panel established pursuant to the RLA and consisting of one carrier member, one union member, and one neutral member. The panel held a hearing on Poole's claim on October 10, 1996, and, according to the parties, the claim is still pending. (Filing 16, Aff....

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