Cavanaugh v. Burlington Northern R. Co.

941 F.Supp. 872

Melva A. CAVANAUGH, Betty J. Clay, Kathy E. Johnson, Mary Kay Kane, Joyce D. Seever and Cinda M. Weber, Plaintiffs, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant.

Civil No. 3-94-332.

United States District Court, D. Minnesota, Third Division.

September 30, 1996.

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Michael H. Hennen, Friendswood, TX, and Ann E. Brose, Yaeger, Jungbauer, Barczak & Roe, Ltd., Minneapolis, MN, for plaintiffs.

Diane P. Gerth, Spence, Ricke & Thurmer, P.A., St. Paul, MN, for defendant.

MEMORANDUM AND ORDER

DAVIS, District Judge.

INTRODUCTION

Plaintiffs brought this action against their employer, defendant Burlington Northern Railroad Co., following an internal investigation of harassment and violent threats against one of their co-workers, throughout which plaintiffs were treated as the "prime suspects." After the investigation revealed that the co-worker herself was responsible for the threats, plaintiffs initiated this lawsuit alleging state law intentional torts of defamation, false imprisonment, and intentional infliction of emotional distress, as well as Federal Employers' Liability Act (FELA) claims. Before the Court are cross motions for summary judgment on the preemptive effect of the Railway Labor Act, 45 U.S.C. § 151, et. seq. (RLA) on plaintiffs' state law and FELA claims. Defendant, alternatively, moves for summary judgment on the grounds that FELA preempts plaintiffs' state law claims; that defendant enjoys a qualified privilege against plaintiffs' defamation claim; and/or that they are entitled to summary judgment as a matter of law on the merits of the remaining claims. For the foregoing reasons, plaintiffs' motion against preemption is granted and defendant's motion for summary judgment on the merits is granted in part and denied in part.

BACKGROUND

In 1992, Debbie Glick joined the Data Validation and Control (DVC) department at Burlington Northern Railroad, a small unit in which plaintiffs were also employed. During the fall of that year, management learned that Glick was allegedly being subjected to some hostilities by her co-workers, stemming from the perception that she was a lesbian. Plaintiff Betty Clay expressed concerns about this to her supervisor, Judy Stedman. Gaye Lindfors Deposition, Defendant's Exh. F, p. 17. Further investigation by Burlington suggested that while more than one factor may have led to the animosity among the employees in the department, "they were certainly mad" at Glick. Id. at 22.

In early November, Glick began reporting that she was receiving threatening phone calls. She stated that she was told to "get off the job, lesbian." Id. at 24. She was informed that the caller(s) knew that she parked at the Galtier parking ramp, the implication of which was "threatening." Id. at 26. At this point, "Assets Protection," Burlington's private police and internal security unit, began investigating the matter.

Assets Protection installed a telephone trace on Glick's home phone, following which there were no more threatening phone calls. Glick also reported to both the St. Paul Police and Assets Protection her discovery of a note taped to her patio door which warned, "Staying home will not make you safe. Get off the job, lesbian." See Ray Young Deposition, Defendant's Exh. J, pp. 40-41; Exh. A attached to Affidavit of Robert Borries. Later, Glick reported that a blue pickup truck had tried to run her off the road; a sign in the back window read, "Debbie are you getting the message?" Young Deposition at 44-45.

Because of the recurring employment theme of these incidents, coupled with the previous allegations of hostility from some of her co-workers, Assets Protection directed its efforts to the members of Glick's department. On November 23, 1992, a work day, plaintiffs were summoned to a conference room in their building. Plaintiffs were then individually interrogated by "special agents" regarding the threats Glick had reported. The plaintiffs remained under the supervision of the investigators for approximately six or seven hours. During this time, they were not permitted to leave unescorted, and a supervisor accompanied them on bathroom or cigarette breaks. While it is not clear precisely what words were used by the agents, plaintiffs generally allege that the agents stated to them that serious criminal offenses had occurred for which someone would face job termination, and that they believed that one or more of the plaintiffs was involved. Plaintiff's Exh. R., attached to Affidavit of Roberta Freeman. By the time the November 23, 1992 interviews were completed, one of the agents concluded that plaintiffs were not responsible for the threats, however, that impression was not conveyed to the plaintiffs. Monte Zillinger Deposition, Plaintiffs' Exh. B, p. 89; Young Deposition, Plaintiffs' Exh. C, p. 92.

During the interrogation, plaintiffs were directed not to discuss the investigation among themselves or with anyone else. That evening, Glick reported a personal threat made to her in which she was told, "if anybody loses their job besides you, you will spend the holidays in the hospital." Young Deposition, Defendant's Exh. J, p. 50. Assets Protection viewed this threat as a violation of their confidentiality directive, and therefore re-interrogated the plaintiffs on November 24, 1992, although for a much shorter time.

Later it was discovered that Glick herself was in fact responsible for the threats. During the Thanksgiving weekend, Assets Protection agents stationed at Glick's house discovered apparent similarities between her handwriting and that which appeared on the threatening notes. After handwriting analysis confirmed this, Glick confessed to the hoax. She agreed to undergo counseling and perform community service, and Glick remains a Burlington Northern employee.

This litigation is the direct result of that hoax. Plaintiffs allege three state law intentional torts stemming from the Glick investigation: defamation, false imprisonment, and intentional infliction of emotional distress. Plaintiffs' complaint also includes claims of negligent supervision and training; negligent infliction of emotional distress; and intentional infliction of emotional distress in violation of Federal Employers' Liability Act, 45 U.S.C. § 51, et seq. (FELA).

DISCUSSION

I. Summary Judgment Standard

Summary Judgment is warranted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court determines materiality from the substantive law governing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Disputes over facts which might affect the outcome of the lawsuit according to applicable substantive law are material. Once the moving party presents a properly supported motion, the burden shifts to the non-moving party to demonstrate the existence of a genuine dispute. A material fact dispute is "genuine" if the evidence is sufficient to allow a reasonable jury to return a verdict for the non-moving party. 477 U.S. at 248-49, 106 S.Ct. at 2510-11.

II. RLA Preemption

Defendant argues that plaintiffs' state tort and federal FELA claims are preempted by the Railway Labor Act, 45 U.S.C. § 151 et seq. (RLA). Defendant claims that plaintiffs have erroneously recharacterized their "minor" disputes, within the meaning of the RLA, as independent state law causes of action. Because such "minor" disputes are subject to mandatory arbitration pursuant to the parties' collective bargaining agreement (CBA), defendant argues that this Court lacks subject-matter jurisdiction over plaintiffs' claims. Defendant further contends that since plaintiffs intended, yet failed, to timely pursue their complaints under the CBA, they are barred from recovery altogether.

In their cross motion for partial summary judgment on preemption, plaintiffs argue to the contrary, relying primarily on Hawaiian Airlines, Inc v. Norris, 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994) wherein the Supreme Court substantially narrowed the scope of RLA preemption of state law claims. Plaintiffs contend that both their state tort and federal FELA claims provide "substantive rights independent of the [CBA]" and thus survive RLA preemption under the new, restrictive Norris standard. Id. at ___ _ ___, 114 S.Ct. at 2247-2249; see also Taggart v. Trans World Airlines, Inc., 40 F.3d 269 (8th Cir.1994) (post-Norris holding that RLA did not preempt plaintiff's state law discrimination claim); Atchison, T. & S.F.R. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987) (pre-Norris holding that RLA did not preempt FELA claim for failure to provide safe workplace). Plaintiffs' argument is compelling.

The RLA was enacted "to promote stability in labor-management relations by providing a comprehensive framework for resolving labor disputes." Norris at ___, 114 S.Ct. at 2243, (citing Buell, 480 U.S. at 562, 107 S.Ct. at 1413-14). The Act sets forth mandatory bargaining, mediation, and arbitration procedures to handle two classes of disputes involving collective bargaining agreements. 45 U.S.C. §§ 151-163, 181-188. The first class are "major" disputes which concern "rates of pay, rules of working conditions." "Major" disputes involve "the formulation of collective bargaining agreements or efforts to secure them." Norris at ___, 114 S.Ct. at 2243 (citation omitted). Of import in this case is the second class or "minor" disputes which "gro[w] out of grievances or out of the interpretation or application of agreements covering rates of pay, rules or working conditions." Buell at 563, 107 S.Ct. at 1414. "Minor" disputes involve "`controversies over the meaning of an existing collective bargaining agreement...