the employment relation between the plaintiff and . . . Metro-North'", Harris at 844 (citations omitted).
The controversy between Ms. Mack and Metro-North is clearly distinguishable from the dispute in Harris. Ms. Harris had been called into the office of her supervisor for an evaluation of her work performance in the course of her employment.
Ms. Mack was not an employee of Metro-North, nor was she a member of a collective bargaining unit which had a collective bargaining agreement with Metro-North. She was riding as a passenger on a train with her son.
The Court of Appeals in Harris points out that a state law claim may survive "if 'the alleged defamation becomes distanced from the work-place and is only "peripherally" concerned with federal labor law'", Harris at 845, quoting Lorenz v. CSX Transp., Inc., 980 F.2d 263, 267 (4th Cir. 1992). Ms. Mack's charges against Metro-North employees are not "minor disputes" that require interpretation of a collective bargaining agreement. Rather, Plaintiff, a non-employee, claims that she was the subject of defamatory statements that were announced over the loud-speaker of a train filled with strangers on a trip to New York; this type of claim does not constitute even a "peripheral concern" of the RLA. See, Lorenz v. CSX Transp., Inc., 980 F.2d 263, 267 (4th Cir. 1992) ("As the alleged defamation becomes distanced from the work-place and is only 'peripherally' concerned with federal labor law, it is excepted from preemption."); Cf. Rosemond v. National Railroad Passenger Corp., 1986 WL 10711 (S.D.N.Y. 1986) ("Plaintiff's allegations are not inseparable from any employment grievance between plaintiff and his employer. Plaintiff's claims did not arise from a discharge from employment; it is not a disciplinary proceeding or a company rule violation or theft investigation or an employment proceeding of any kind.") Ms. Mack's claims may not be preempted by any collective bargaining agreement.
Ms. Mack's tort claims turn squarely on a question of fact: whether she had been defamed on the train, whether she was a victim of intentional infliction of emotional distress and whether she had been falsely imprisoned. These issues do not require interpretation of a CBA. Rather they are issues of fact to be decided by a jury.
To rule that plaintiff's claims be sent to arbitration would legitimize a system which would frustrate tort victims seeking remedy in the judicial system. See, Jackson v. Consolidated Rail Corp., 717 F.2d 1045, 1060 (7th Cir. 1983) (Posner, J., dissenting) "It would be surprising if compulsory arbitration of contract disputes was intended to wipe out the employee's common law rights other than his right to enforce the very contracts that are subject to the scheme of compulsory arbitration."; see also, Lorenz v. CSX Transp., Inc., 980 F.2d 263, 269-72 (4th Cir. 1992) (Sprouse, J., dissenting). Hawaiian Airlines makes apparent that in defining the jurisdiction of state courts, care must be used not to infringe upon the jurisdiction of the states in settling state law claims. The Court held that the element of discharge under Hawaii law is a purely factual question and that under Lingle "'purely factual questions' do not 'require a court to interpret any term of a collective bargaining agreements.'" Hawaiian Airlines at 2248, quoting Lingle.3
Accordingly, Defendants' motion to dismiss is denied because Plaintiff's tort claims are not preempted by operation of the Railway Labor Act, 45 U.S.C. § 151. Plaintiff's motion to remand this case to state court is denied even though the action was removed on improper grounds by Defendants since Plaintiff's motion was not made within thirty days of removal as is required under 28 U.S.C. § 1447(c), and it does appear that jurisdiction in this court is proper on diversity grounds, 28 U.S.C. § 1332.
IT IS SO ORDERED.
Dated: New York, New York
November 28, 1994
Robert P. Patterson, Jr.