Railroad ("Metro-North") moves pursuant to Rule 12(b)(1)
Fed.R.Civ.P. to dismiss claim 5 for lack of subject matter
jurisdiction on the ground that the claim is preempted by the
Railway Labor Act ("RLA"), 45 U.S.C. § 151a. See Hawaiian
Airlines v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d
Following the completion of pre-trial proceedings, defendant
Metro-North previously moved for summary judgment. See
Fed.R.Civ.P. 56. In an Opinion dated July 21, 1999, this Court
granted in part, and denied in part, Metro-North's motion,
dismissing all claims except Lennon's claim that Metro-North
retaliated against him as a consequence of his filing an EEOC
claim alleging discrimination on the basis of disability.
Familiarity with that Opinion and with the record on which it is
based is assumed.
In essence Lennon's claim of retaliation is that he was
improperly subjected to a medical suspension following his
failure to cooperate with Metro-North's efforts to require him to
submit to medical examinations to verify the nature and extent of
a claimed job-related injury. Metro-North contends that the
relevant provisions of the Collective Bargaining Agreement
("CBA") between Metro-North and the Metropolitan Transportation
Authority authorized the suspension. Lennon, on the other hand,
contends that the suspension was not authorized by the CBA, was
unprecedented and was in retaliation for the filing of the EEOC
Under Norris, preemption would be a possibility if Lennon's
retaliation claim were a state law claim the resolution of which
required the Court to interpret the CBA. Norris, 512 U.S. at
256-257, 114 S.Ct. 2239. Defendant's heavy reliance on Norris
and cognate cases considering RLA preemption in the context of
state law claims is somewhat misplaced. This case does not
involve a collision between shop law or state law and federal
law. Rather it involves the tension between complementary bodies
of federal legislation, i.e., the RLA and 42 U.S.C. § 12203.
See Bates v. Long Island Railroad Co., 997 F.2d 1028, 1035 (2d
Cir. 1993). The preemption doctrine does not govern questions
relating to the compatibility of two or more federal laws.
Saridakis v. United Airlines, 166 F.3d 1272, 1276 (9th Cir.
1999); Felt v. Atchison Topeka and Santa Fe Railway Co.,
60 F.3d 1416 (9th Cir. 1995).
The factual issue in this case that could well be dispositive
is defendant's motive and intent in suspending Lennon. On the
basis of the record before the Court, an inquiry into motive and
intent would not necessarily require an interpretation of the
collective agreement. In Norris the Supreme Court pointed out
that the RLA does not preempt claims involving rights and
obligations that exist independent of the CBA. Norris, 512 U.S.
at 256, 114 S.Ct. 2239. Shafii v. British Airways, PLC,
83 F.3d 566, 569-570 (2d Cir. 1996). "[T]he elements of an action for a
retaliatory discharge — which primarily depend on a determination
of the employer's motive for firing an employee — do not require
an interpretation of the CBA." Id. at 570.
In any event, Lennon's right to be free from retaliation
derives, not from state law but from federal law. That right
exists independently of the CBA as well as of the RLA. Lennon
could prevail on his retaliation claim were he to prove that (1)
he was engaged in activity protected by the ADA; (2) Metro-North
was aware of that activity; (3) an adverse employment action
occurred; and (4) the protected activity — i.e., the filing of
an EEOC complaint — was a substantial motivating factor in the
adverse employment action. See Muller v. Costello,
187 F.3d 298, 311 (2d Cir. 1999).
The existence vel non of each of these factors depends not on
the text of the CBA but on Metro-North's motivation in
disciplining Lennon. Since no "actual interpretation" of the CBA
is required to determine if the EEOC complaint was a
substantial motivating factor in plaintiff's suspension, the
retaliation claim would not be "conclusively resolved by
interpreting the existing CBA." See Norris, 512 U.S. at 256,
114 S.Ct. 2239; Saridakis v. United Airlines, 166 F.3d 1272;
Shafii, 83 F.3d at 569.
The motion is denied.
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