Richardson v. BNSF Ry. Co.

2 F.4th 1063

Scott T. RICHARDSON, Plaintiff - Appellant

v.BNSF RAILWAY COMPANY, Defendant - Appellee

No. 20-1932

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2021

Filed: June 28, 2021

Richard L. Boucher, Bradley Harzman Supernaw, Boucher Law Firm, Lincoln, NE 68512, for Plaintiff-Appellant.

Nichole S. Bogen, Nichole S. Bogen, Lamson & Dugan, Lincoln, NE 68508, David M. Pryor, Senior Attorney, Burlington Northern Railroad Company, Fort Worth, TX 76131-2830, for Defendant-Appellee.

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.

GRUENDER, Circuit Judge.

Scott T. Richardson sued BNSF Railway Co., alleging constructive discharge and intentional infliction of emotional distress under Nebraska law. BNSF moved to dismiss both claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court¹ granted BNSF's motion. Richardson appeals, and we affirm.

I.

Richardson's complaint alleged the following facts. In 2015, after eighteen years of employment with BNSF, Richardson received a new supervisor. Shortly thereafter, BNSF "pulled [Richardson] out of service," alleging that he had left a company vehicle at a hotel bar. According to the supervisor, Richardson had been drinking while driving. After a six-week investigation produced no evidence that Richardson had been drinking while driving, BNSF returned Richardson to service. BNSF then required Richardson to complete from memory expense reports related to events that had occurred before his removal. Upon identifying alleged errors in Richardson's expense reports, BNSF terminated Richardson's employment.

On January 31, 2018, an arbitration board reversed the termination, ordering BNSF "to return [Richardson] to work with his seniority intact within 30 days." However, BNSF "made no attempts to return [Richardson] to work within 30 days." When Richardson contacted the supervisor in February to discuss reinstatement, the supervisor "responded with expletive laced messages" and "threatened physical violence" as well as "further disciplinary action" against Richardson. It was not until April 2019, more than one year after the board's decision, that BNSF mailed Richardson a letter instructing him to contact a different BNSF manager on or before May 8, 2019 "to begin the reinstatement process."

Although Richardson's complaint did not detail what happened next, the record indicates, and Richardson does not deny, that he declined BNSF's invitation to return to work. Richardson's complaint did allege, however, that he "reasonably believed [BNSF] never intended to return [him] to employment, that [BNSF and its employees] would continue to harass and threaten [him], that [BNSF] would discipline [him] without cause," and that BNSF "would ultimately terminate [him] without cause." According to Richardson, BNSF "deliberately rendered [his] working conditions intolerable" in order to "force [him] to quit." In addition, Richardson alleged that, by subjecting him to discipline and termination without cause and by "berating [him] with expletive laced language and threats of physical violence," BNSF and its employees engaged in "intentional or reckless" conduct that was "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community," causing him to suffer "emotional distress so severe that no reasonable person should be expected to endure it."

Richardson sued BNSF in Nebraska state court, alleging constructive discharge and intentional infliction of emotional distress. BNSF removed the case to federal court on the basis of diversity jurisdiction and then moved to dismiss. The district court granted the motion, concluding that the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq. , divested it of subject-matter jurisdiction over both of Richardson's claims and that, furthermore, Richardson had failed to state a claim of intentional infliction of emotional distress under Nebraska law. Richardson appeals.

II.

"We review the grant of a motion to dismiss de novo." Tholen v. Assist Am., Inc. , 970 F.3d 979, 982 (8th Cir. 2020). On appeal, as before the district court, BNSF argues that dismissal was proper under Rule 12(b)(1) for lack of subject-matter jurisdiction and, in the alternative, that dismissal was proper under Rule 12(b)(6) for failure to state a claim.

We begin with the question whether dismissal was proper under Rule 12(b)(1). See Demien Constr. Co. v. O'Fallon Fire Prot. Dist. , 812 F.3d 654, 656-57 (8th Cir. 2016) (explaining that the appellate court "must" confirm subject-matter jurisdiction before proceeding to review a dismissal under Rule 12(b)(6) ). A district court properly dismisses a complaint under Rule 12(b)(1) if the plaintiff fails to establish subject-matter jurisdiction by a preponderance of the evidence. See OnePoint Sols., LLC v. Borchert , 486 F.3d 342, 347 (8th Cir. 2007).

BNSF argues that the district court properly dismissed Richardson's complaint under Rule 12(b)(1) because the RLA divested the district court of subject-matter jurisdiction over both of Richardson's claims. The RLA assigns arbitration boards "exclusive jurisdiction" over claims arising out of the application or interpretation of a collective-bargaining agreement between a carrier and its employees.² Consol. Rail Corp. v. Ry. Labor Execs.’ Ass'n , 491 U.S. 299, 303-04, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989). A claim arises out of the application or interpretation of a collective-bargaining agreement if it cannot be resolved without interpreting the collective-bargaining agreement. Gore v. Trans World Airlines , 210 F.3d 944, 949 (8th Cir. 2000). This is necessarily the case if the claim relies on rights that exist only by virtue of the collective-bargaining agreement. Id.

We agree with BNSF and the district court that the RLA divested the district court of subject-matter jurisdiction over Richardson's constructive-discharge claim. "The clear and oft-cited rule in Nebraska is that unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an at-will employee at any time with or without reason," with a limited exception for cases in which the termination violates a "very clear mandate of public policy." Malone v. Am. Bus. Info. , 262 Neb. 733, 634 N.W.2d 788, 790, 793 (2001). Richardson has not identified a constitutional or statutory basis for his alleged right under Nebraska law not to be discharged, constructively or otherwise; nor has he identified a "very clear mandate of public policy" that the alleged constructive discharge violated. See id. at 793. The only remaining source of his alleged right is thus contractual. But Richardson has identified no contract, other than the collective-bargaining agreement between BNSF and its employees, that could have given him a right not to be constructively discharged. Indeed, Richardson's counsel conceded at oral argument that BNSF "could have terminated him for any reason under Nebraska law absent the collective-bargaining agreement." Richardson's constructive-discharge claim thus relied on a right that exists, if at all, only by virtue of a collective-bargaining agreement between a carrier and its employees. Therefore, the district court properly dismissed Richardson's constructive-discharge claim for lack of subject-matter jurisdiction.

We reach the opposite conclusion regarding Richardson's claim of intentional infliction of emotional distress. "[A]s long as [a] claim can be resolved without interpreting the agreement itself," the RLA does not deprive courts of subject-matter jurisdiction over it. Hawaiian Airlines, Inc. v. Norris , 512 U.S. 246, 262-63, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). Here, it is possible to resolve Richardson's claim of intentional infliction of emotional distress without interpreting the collective-bargaining agreement because Richardson's complaint fails to state a claim of intentional infliction of emotional distress under Nebraska law no matter what the collective-bargaining agreement says. Therefore, the district court had subject-matter jurisdiction over Richardson's claim of intentional infliction of emotional distress, which means that dismissal under Rule 12(b)(1) was inappropriate. But the same considerations that lead us to this conclusion also lead us to the conclusion that dismissal under Rule 12(b)(6) was appropriate.

Under Rule 12(b)(6), a complaint fails to state a claim upon which relief can be granted if the plaintiff fails to plead factual content that, if true, would allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "[M]ere conclusory statements," id. , and factual allegations lacking "enough specificity to raise a right to relief above the speculative level," Minn. Majority v. Mansky , 708 F.3d 1051, 1055 (8th Cir. 2013) (internal quotation marks omitted), are insufficient to support a reasonable inference that the defendant is liable.

A plaintiff bringing a claim of intentional infliction of emotional distress under Nebraska law must clear "a high hurdle." Heitzman v. Thompson , 270 Neb. 600, 705 N.W.2d 426, 431 (2005). Specifically, he must show that the defendant engaged in "intentional or reckless" conduct that was "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community," causing the plaintiff to suffer "emotional distress so severe that no reasonable person should be expected to endure it." Id. at 430-31. Clearing this hurdle requires showing more than that the defendant "threat[ened]" or "insult[ed]" the plaintiff, id. at 431, or that the defendant breached an employment contract, see Foreman v. AS Mid-Am.,...