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March 8, 1995

SHARON E. MACK and DAVID G. MACK, SNR., Plaintiffs, against METRO-NORTH COMMUTER RAILROAD, JOHN HERRLIN, M.D. and INEZ VASQUEZ, R.P.A., in their capacities as employees and individually, Defendants.

Peter K. Leisure, U.S.D.J.

The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge:

 This is an action brought by Sharon E. Mack ("Sharon Mack") and David G. Mack, Snr. ("David Mack"), against Metro North Commuter Railroad, ("Metro-North"), John Herrlin, M.D. ("Herrlin"), and Inez Vasquez ("Vasquez"). Plaintiffs originally brought the instant action in state court, and defendants removed it to federal court. Sharon Mack seeks damages for negligence, assault, battery, and false imprisonment, allegedly arising out of a fitness-for-service medical examination conducted by defendants. David Mack asserts a claim for loss of consortium.

 On July 8, 1994, defendants moved to dismiss the complaint for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). Defendants allege that the complaint raises a "minor" dispute under the Railway Labor Act, 45 U.S.C. §§ 151, et seq., ("RLA"). They contend that it is therefore the type of dispute for which Congress vested exclusive jurisdiction to the RLA grievance-to-adjustment board dispute resolution procedure, established in section 3 of the RLA.


 It is well established that, in considering a motion to dismiss for want of subject matter jurisdiction, the Court must accept as true all material factual allegations in the complaint. See, e.g., Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). It is also well established, however, that the Court should not draw argumentative inferences favorable to the party asserting jurisdiction. Id.

 There are significant discrepancies as to the facts which gave rise to the complaint in this action. Viewing the facts in the light most favorable to the non-movant, as the Court must, they are as follows: On March 26, 1993, Sharon Mack was injured while working as a conductor. Plaintiffs' Brief in Answer to Defendants' Motion to Dismiss Plaintiffs' Complaint ("Plaintiffs' Mem.") at 1. Three days later, and contrary to company practice, Sharon Mack was instructed by Pete Hanson ("Hanson"), a trainmaster, to visit the Metro-North Medical Department. Plaintiffs' Mem. at 1. On March 29, 1993, Sharon Mack submitted to a physical examination by defendant Herrlin, a medical doctor employed by Metro-North. Plaintiffs' Mem. at 1. During the examination, Herrlin conducted a vigorous manipulation of Sharon Mack's neck, which aggravated the neck injury she received three days earlier. Plaintiffs' Mem. at 1-2. In pain, she demanded that Herrlin stop the examination. Plaintiffs' Mem. at 2. He ignored her, and plaintiff then attempted to terminate the examination by leaving the room. Plaintiffs' Mem. at 2. While Herrlin was conducting the examination, his assistant, Vasquez, conducted a search of Sharon Mack's handbag, and when Sharon Mack attempted to leave, Vasquez tackled her and hit her in the face. Plaintiffs' Mem. at 2. When Sharon Mack called for help Vasquez immediately covered Sharon Mack's mouth with her hand to stifle her screams. Plaintiffs' Mem. at 2. The examination exacerbated the neck injury from which Sharon Mack suffered, and Vasquez's attack left her with contusions and swelling of the face and neck. Plaintiffs' Mem. at 3.

 Based on reports of the incident given by Vasquez and Herrlin, Metro-North took disciplinary action against Sharon Mack. Plaintiffs' Mem. at 3. On June 10, 1993, subsequent to an investigation regarding the incident, Metro-North dismissed Sharon Mack. Plaintiffs' Mem. at 3.

 Plaintiffs assert that their tort claims are not pre-empted by the RLA and therefore that the motion to dismiss should be denied. Defendants counter that, as a minor dispute under the RLA, the grievance-to-adjustment board has exclusive jurisdiction. The question before this Court, therefore, is whether plaintiffs have pleaded facts sufficient to establish that their claims are not pre-empted by the grievance to adjustment board dispute resolution procedure. For the reasons stated below, defendants' motion to dismiss is denied as to the first four claims in the complaint and is granted as to the 5th and 6th claims.

 I. The Collective Bargaining Agreement

 While providing both "for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions" and "for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions," the RLA's dispute resolution procedures do not necessarily pre-empt all state law claims. 45 U.S.C. § 151a. See Bates v. Long Island R.R. Co., 997 F.2d 1028, 1034 (2d Cir. 1993). The RLA establishes compulsory arbitral procedures to handle minor disputes and dictates that these disputes be resolved by the National Railroad Adjustment Board. See Consolidated Rail v. Ry. Labor Executives' Ass'n, 491 U.S. 299, 303-304, 105 L. Ed. 2d 250, 109 S. Ct. 2477 (1989). In the instant action, there are issues of fact as to whether plaintiffs' first four claims are "minor" under the RLA, and consequently involve interpretation of the collective bargaining agreement ("CBA"). Until such issues are resolved, a dismissal for lack of subject matter jurisdiction of those claims is inappropriate. However, plaintiffs' fifth and sixth causes of action do require interpretation of the CBA. Therefore, they are subject to the dispute resolution procedure of the RLA and not to the jurisdiction of this Court.

 In Consolidated Rail, the Court held that a "dispute is minor if the action is arguably justified by the terms of the parties' collective-bargaining agreement." Consolidated Rail, 491 U.S. at 307; see also Hawaiian Airlines, Inc. v. Norris, 129 L. Ed. 2d 203, 114 S. Ct. 2239, 2246 (1994) (holding that a state-law cause of action is not preempted by the RLA if it involves rights and obligations that exist independent of the collective bargaining agreement). The alleged manner in which Herrlin and Vasquez conducted the medical examination is not an issue "grounded in the collective-bargaining agreement." Hawaiian Airlines, 114 S. Ct. at 2245. Additionally, the rights of plaintiffs to bring state law tort claims exist independent of the CBA.

 Plaintiffs have not attempted to circumvent the RLA by couching in terms of tort law issues grounded in the CBA. See, e.g. Magnuson v. Burlington Northern, 576 F.2d 1367, 1369 (9th Cir. 1978) (in an action involving a claim for intentional infliction of emotional distress, which developed from an alleged conspiracy to terminate, the court held that "artful pleading cannot conceal the reality that the gravamen of the complaint is wrongful discharge"). In the instant action, Sharon Mack's first four claims are neither based on wrongful discharge nor on any issues ...

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