Additionally, while defendants claim that all of plaintiffs' causes of action relate to the disciplinary proceedings regarding Sharon Mack's discharge, this Court does not find support for that claim in the papers submitted. Sharon Mack's complaint does not challenge the finding of the disciplinary committee regarding her discharge. While she presents a version of the events that took place at the medical examination different from the one that the disciplinary committee found to be true, and upon which it decided to discharge her, she has not challenged the findings of that body in this Court. Plaintiffs' Mem. at 9-10. This Court is not asked to determine whether Sharon Mack was disciplined correctly, but rather whether she was tortiously injured.
In sum, plaintiffs' first four claims do not "depend upon" nor are they "rooted in" the meaning of the CBA. See Hawaiian Airlines, 114 S. Ct. at 2247. If plaintiffs' factual allegations are true, under no interpretation of the CBA is the behavior in question permissible. In other words, claims one through four seemingly turn on a "purely factual inquiry" about conduct and motive that do not require interpretation of the CBA. See Lingle v. Norge Division of Magic Chef, 486 U.S. 399, 407, 100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988). Accordingly, the Court concludes that plaintiffs' first four causes of action are not pre-empted by the RLA.
The fifth cause of action for exposing plaintiff to the events in question is essentially a claim for wrongfully submitting plaintiff to the medical exam. The ability of Metro-North to require plaintiff to submit to the exam is covered by the CBA and therefore is pre-empted by the RLA. Calvert, 959 F.2d at 700. The sixth cause of action for negligently failing to ensure that the medical facility was manned by adequately trained employees and for failing to take disciplinary action against defendants is likewise a claim involving an issue which is "substantially dependent upon analysis of the terms of an agreement made between the parties," and is pre-empted by the RLA. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220, 85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985).
In a footnote on the last page of their brief, defendants claim that Sharon Mack's "remedy. [sic] if any, lies in an action under the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq." The Federal Employers' Liability Act ("FELA") provides a remedy for employees injured due to the negligence of federal employers engaged in interstate commerce. 45 U.S.C. § 51. FELA does not cover Sharon Mack's claims against Herrlin and Vasquez individually, and FELA does not generally cover intentional torts unless they are reasonably foreseeable or the tort was committed in furtherance of the employer's business. See Lancaster v. Norfolk and Western Ry. Co., 773 F.2d 807, 817 (7th Cir. 1985). The Second Circuit has held that a railroad is not liable for personal injuries resulting from intentional torts under FELA, unless the harm is of the type which would be reasonably foreseeable by the railroad and thus avoidable by them. Cf. Smith v. Nat'l R.R. Passenger Corp., 856 F.2d 467, 469-470 (2d Cir. 1988); Green v. River Terminal Ry. 763 F.2d 805, 808-809 (6th Cir. 1985). Issues of fact remain as to whether these actions were foreseeable or committed in furtherance of the goals of Metro-North, and therefore a dismissal on this ground is likewise not warranted at this time.
Consequently, it is likely that Sharon Mack would not be compensated sufficiently by FELA. As FELA was enacted to compensate injured railroad employees fully, it would not serve Congressional intent to dismiss Sharon Mack's state law claims because of pre-emption by a statute which may not remedy those claims. See Smith, 856 F.2d at 473; see also Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 144 (2d Cir. 1989) (stating that the "purpose of Congress is the ultimate touchstone in determining whether a federal law preempts a state law"); see also Rogers v. Consol. Rail Corp., 948 F.2d 858, 860 (2d Cir. 1991) (when a railroad employee was injured outside the territorial limits of the United States, where FELA would not provide compensation, the Second Circuit stated that to hold that FELA pre-empted state law claims would leave plaintiff without a remedy - a holding which would contravene Congress' intent).
Finally, even if this Court were later to determine that FELA pre-empted some of Sharon Mack's claims, leave to amend to plead the claims under FELA would likely be granted.
III. Outrageous Conduct
In Farmer v. United Brotherhood of Carpenters & Joiners, 430 U.S. 290, 51 L. Ed. 2d 338, 97 S. Ct. 1056 (1977), the Supreme Court created a narrow exception to federal pre-emption. The Supreme Court established that in the labor law context, if a cause of action (1) is only a peripheral concern of labor law, and (2) affects historical state interests in protecting the health and well-being of its citizens, it is exempted from preemption. Farmer, 430 U.S. at 304-305. The Supreme Court held that "nothing in the federal labor statutes protects or immunizes from state action violence or the threat of violence in a labor dispute." Farmer, 430 U.S. at 299. The Farmer Court further held that, "the particularly abusive manner in which the [tort] is accomplished. . . " is the key to determining if an exception is warranted. Farmer, 430 U.S. at 305. In the instant action, the allegations of the purported attack and false imprisonment of Sharon Mack are not primarily related to the CBA and are within the historic concerns of the state in protecting the health and welfare of its citizens. Therefore, the allegations in claims one through four of the complaint sufficiently satisfy the test of outrageous conduct to merit a denial of the motion to dismiss.
For the reasons stated above, defendants' motion to dismiss this action for lack of subject matter jurisdiction is denied as to claims one through four of the complaint and is granted as to the fifth and sixth claims. The parties are advised to appear in Courtroom 1106 for a pre-trial conference at 2:00 p.m. on April 21, 1995.
DATED: March 8, 1995
New York, NY
Peter K. Leisure
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