McFarland v. BNSF Railway Company, No. 4:2016cv05024 - Document 13 (E.D. Wash. 2016)
Court Description: ORDER Denying 7 Defendant BNSF'S Motion to Dismiss Under Fed. R. Civ. P. 12(B)(1) and 12(B)(6). Signed by Senior Judge Edward F. Shea. (CV, Case Administrator)
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McFarland v. BNSF Railway Company Doc. 13 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 No. BRENT McFARLAND, 8 Plaintiff, 9 10 4:16-CV-5024-EFS ORDER DENYING DEFENDANT BNSF'S MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B)(1) AND 12(B)(6) v. BNSF RAILWAY COMPANY, 11 Defendant. 12 13 After working for BNSF Railway Company for many years, Plaintiff 14 Brent McFarland claims he was wrongfully discharged in violation of 15 public policy for filing a grievance and subsequent lawsuit against BNSF 16 to recover for a workplace injury. BNSF seeks dismissal of this lawsuit 17 because 1) Mr. McFarland’s state-law wrongful-discharge tort claim is 18 preempted by the Railway Labor Act (RLA), 45 U.S.C. §§ 151 et seq., and 19 2) Mr. McFarland is collaterally estopped from re-litigating that his 20 termination was based on Collection Bargaining Agreement (CBA) Rule 21 16(f). Mr. McFarland maintains his state-law claim is not preempted and 22 that 23 Washington state law. After reviewing the record and relevant legal 24 authority, the Court denies BNSF’s motion to dismiss. he is not collaterally estopped from seeking relief under 25 26 ORDER - 1 Dockets.Justia.com 1 A. Factual Statement1 2 Mr. McFarland worked for BNSF for over 15 years, beginning as a 3 carman apprentice and a journeyman railroad carman. As a union employee, 4 his employment relationship with BNSF was governed by the CBA, ECF No. 5 9-1. During his employment with BNSF, Mr. McFarland also worked for his 6 father’s company, RJ Mac. Both exempt and scheduled BNSF employees at 7 the Pasco site knew that Mr. McFarland worked for his father’s company 8 as well. 9 In 2009, Mr. McFarland suffered an on-the-job injury to his right 10 shoulder while working for BNSF. He tried to informally resolve his 11 injury claim with BNSF but was unsuccessful. Mr. McFarland then filed 12 a lawsuit against BNSF under the Federal Employers Liability Act (FELA), 13 seeking to recover damages for his injury. Trial was held. Mr. McFarland 14 testified. During his testimony, Mr. McFarland stated that he worked 15 for RJ Mac while on leaves of absence from BNSF in 2003 and 2004. The 16 jury decided in BNSF’s favor on Mr. McFarland’s FELA claim. 17 18 19 1 The “factual statement” is based on the factual allegations in the 20 Complaint, ECF No. 1-2, and the CBA, ECF No. 9-1. See Ashcroft v. Iqbal, 21 556 U.S. 662, 678-79 (2009); United States v. Ritchie, 342 F.3d 903, 22 908 (9th Cir. 2003) (When considering a motion to dismiss, “[a] court 23 may . . . consider certain materials—documents attached to the 24 complaint, documents incorporated by reference in the complaint, or 25 matters of judicial notice.”). 26 ORDER - 2 1 Soon after post-trial motions, which were decided in BSNF’s favor, 2 BNSF terminated Mr. McFarland. BNSF advised that it terminated Mr. 3 McFarland because he violated the CBA by working for RJ Mac while on 4 leaves of absence from BNSF in 2003 and 2004—nine years prior thereto: 5 7 Employees accepting other compensated employment while on leave of absence without first obtaining permission from the officer in charge and approved by the General Chairman shall be considered out of service, and their names shall be removed from the seniority roster. 8 CBA Rule 16(f), ECF No. 9-1. When Mr. McFarland confronted his prior 9 boss at BNSF, Ryan Risdon, Mr. Risdon stated, “What do you expect. You 10 got the ball rolling, [sic] It is your fault for bringing a lawsuit 11 against 12 employees who worked for outside companies. 6 the company.” BNSF did not terminate similarly situated 13 The Union filed a grievance, on Mr. McFarland’s behalf, challenging 14 his discharge under Rule 16(f). The grievance was handled between BNSF 15 and the Union pursuant to CBA Rule 34, ECF No. 9-1, with BNSF apparently 16 prevailing as to its position that Mr. McFarland violated Rule 16(f) 17 and therefore his discharge was appropriate. In January 2015, the Union 18 informed Mr. McFarland that it did not intend to pursue arbitration of 19 his grievance. 20 Mr. McFarland then filed this lawsuit, alleging that BNSF’s 21 proffered reason for terminating him—CBA Rule 16(f)—was merely a pretext 22 for the true basis for his termination, which was in retaliation for 23 filing a grievance and then FELA lawsuit seeking to recover for his 24 worksite injury. The claim asserted is a state-law tort claim of 25 wrongful discharge in violation of Washington’s public policy against 26 ORDER - 3 1 discharging an employee for exercising a legal right or privilege, or 2 for engaging in whistleblowing activity. 3 BNSF removed this lawsuit from state court and then filed a motion 4 to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (6). 5 Briefing ensued. 6 B. Standard 7 Rule 12(b)(1) provides that an action must be dismissed for lack 8 of subject-matter jurisdiction. The party filing the lawsuit in federal 9 court—the plaintiff in a lawsuit that was initially filed in federal 10 court and the defendant in a lawsuit that was removed to federal court— 11 bears the burden of establishing subject-matter jurisdiction. Stock W., 12 Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989); Gaus 13 v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). 14 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency 15 of the pleadings. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). 16 A complaint may be dismissed for failure to state a claim under Rule 17 12(b)(6) where the factual allegations do not raise the right to relief 18 above the speculative level. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 19 (2009); Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). Conversely, a 20 complaint may not be dismissed for failure to state a claim where the 21 allegations plausibly show that the pleader is entitled to relief. 22 Twombly, 550 U.S. at 555. In ruling on a motion under Rule 12(b)(6), a 23 court must construe the pleadings in the light most favorable to the 24 plaintiff and accept all material factual allegations in the complaint, 25 as well as any reasonable inferences drawn therefrom. Broam v. Bogan, 26 320 F.3d 1023, 1028 (9th Cir. 2003). ORDER - 4 1 C. Authority and Analysis 2 BNSF seeks dismissal for two reasons: first, under Rule 12(b)(1) 3 for lack of subject-matter jurisdiction because this lawsuit involves 4 a CBA minor dispute and is therefore preempted by the Railway Labor Act 5 (RLA), 45 U.S.C. §§ 151 et seq.; and second, under Rule 12(b)(6) because 6 Mr. McFarland is collaterally estopped from challenging the application 7 of CBA Rule 16(f), as interpreted by BNSF, to his claim in this lawsuit. 8 The Court begins with the subject-matter jurisdiction question of 9 preemption under the RLA. 10 The RLA established a system to handle disputes “growing out of 11 grievances or out of the interpretation or application of agreements 12 concerning rates of pay, rules, or working conditions” for the railway 13 and airline industry. Hawaiian Airlines v. Norris, 512 U.S. 246, 248 14 (1994) (quoting 45 U.S.C. § 153 First (i)). The purpose was to “promote 15 stability in labor-management relations by providing a comprehensive 16 framework for resolving labor disputes.” Id. at 252. To accomplish this 17 purpose, 18 disputes: major disputes (those concerning “rates of pay, rules or 19 working conditions”) and minor disputes (those which “gro[w] out of 20 grievances or out of the interpretation or application of agreements 21 covering rates of pay, rules, or working conditions.” Id. at 252-53 22 (quoting § 151a). BNSF contends that Mr. McFarland’s claim is a minor 23 dispute as it requires the interpretation of CBA Rule 16(f) and that 24 his claim is therefore preempted by the RLA. the RLA requires mandatory arbitration for two types of 25 RLA preemption of state-law claims is not to be lightly inferred. 26 Hawaiian, 512 U.S. at 252. To ensure that RLA preemption is not lightly ORDER - 5 1 inferred, 2 questions are answered in the affirmative, then the state-law claim can 3 proceed: first, does the asserted cause of action involve a right 4 conferred on the employee by virtue of state law, not the CBA; and 5 second, can the state-law claim be resolved by looking to, rather than 6 interpreting, the CBA. Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 7 1059 (9th Cir. 2007) (setting forth test in the confines of a Labor 8 Management Relations Act (LMRA) case2) (citing Caterpillar, Inc. v. 9 Williams, 482 U.S. 386, 394 (1987)); Hawaiian Airlines, 512 U.S. at 260- 10 a two-step analysis is used. If both of the following 61 (involving the scope of preemption under the RLA). 11 At the first step, the Court finds that Mr. McFarland’s wrongful- 12 discharge claim is independent of the CBA: it is based on Washington 13 public policy. Washington courts recognize a “public policy tort in 14 recognition 15 ‘unfettered control of the workplace and, thus, allows the employer to 16 take unfair advantage of its employees.’” Rickman v. Premera Blue Cross, 17 184 Wn.2d 300, 309 (2015) (quoting Thompson v. St. Regis Paper Co., 102 18 Wn.2d 219, 226 (1984)). To prove Washington’s state-law tort of wrongful 19 discharge, an employee must establish 1) the existence of a clear public 20 policy, 2) that discouraging the conduct in which the employee engaged 21 would jeopardize the public policy, and 3) that the public-policy-linked 22 conduct caused the dismissal. Id. at 310. As to the first element, the that the at-will doctrine gives employers potentially 23 24 2 25 virtually 26 Airlines, 512 U.S. at 263. The Supreme Court recognizes that the preemption standard under the RLA is ORDER - 6 identical to the preemption standard in LMRA cases. Hawaiian 1 Washington Supreme Court has recognized that the tort of wrongful 2 discharge extends to a claim that an employer retaliated against the 3 employee for whistleblowing activity, Dicomes v. State, 113 Wn.2d 612 4 (1989), and for obtaining legal assistance to confront the employer’s 5 unlawful discrimination, Bennett v. Hardy, 113 Wn.2d 912, 924 (1990). 6 To establish causation, the employee need not prove that the employer’s 7 sole motivation was retaliation; instead, the employee must produce 8 evidence that his actions in furtherance of the public policy was a 9 substantial factor motivating the employer’s discharge decision. 10 Rickman, 184 Wn.2d at 314; Wash. Pattern Jury Instr. Civ. 330.01.01 & 11 Comments. Once the employee establishes these prima facie elements, the 12 employer 13 justified by an overriding legitimate consideration. Gardner v. Loomis 14 Armored, Inc., 128 Wn.2d 931, 940 (1996). has the burden of establishing that the termination was 15 Washington’s public policy against discharging an employee for 16 protected activity is a substantive protection provided by Washington 17 state tort law, which is separate from any rights provided by the CBA. 18 See Hawaiian Airlines, 512 U.S. at 258-59 (“Wholly apart from any 19 provision of the CBA, petitioners had a state-law obligation not to fire 20 respondent 21 whistleblowing.”). 22 discharge in violation of Washington public policy requires a purely 23 factual inquiry into BNSF’s alleged retaliatory termination decision. 24 See id. at 266. Accordingly, the Court finds the asserted claim involves 25 a right conferred on Mr. McFarland by virtue of state law, not the CBA. 26 Cf. Andrews v. Louisville & Nashville R. Co., 406 U.S. 320 (1972) ORDER - 7 in violation Mr. of public McFarland’s policy prima or facie in retaliation claim of for wrongful 1 (finding that wrongful-discharge claim was dependent upon contractual 2 rights created by the CBA). 3 The second preemption-analysis step focuses on whether the court 4 or jury must merely “look to” the CBA (no preemption) or whether 5 interpretation of the CBA is required (preemption). This distinction is 6 “not always clear or amendable to a bright-line test.” Cramer v. 7 Consolidated Freightways, Inc., 255 F.3d 683, 691 (9th Cir. 2001). And 8 here the line is not crystal clear. But the Court determines, based on 9 Mr. McFarland’s claim and legal arguments in support thereof, that his 10 wrongful-discharge claim 11 merely “looks to” rather than requires interpretation of the CBA. 12 Because Mr. McFarland’s employment relationship with BNSF was 13 governed by the CBA, it is uncontested that the CBA will be discussed 14 and referred to. However, as set forth above, the elements that Mr. 15 McFarland must prove in order to establish a prima facie case of wrongful 16 discharge in violation of Washington public policy for having pursued 17 a grievance and subsequent litigation for a workplace injury do not 18 require interpreting the CBA, or more specifically CBA Rule 16(f). If 19 Mr. McFarland is able to establish a prima facie case of wrongful 20 discharge, it is certain that BNSF will argue that its termination 21 decision was based solely on Rule 16(f). Yet, so long as Mr. McFarland 22 does not challenge BNSF’s interpretation of Rule 16(f), the jury may 23 look to Rule 16(f)—as interpreted and applied by BNSF—and consider the 24 evidence presented by Mr. McFarland that BNSF’s proffered reason was 25 merely a pretext, such as evidence that BNSF officials knew of his RJ 26 Mac work in advance of his grievance and subsequent litigation and that ORDER - 8 1 other individuals who engaged in non-BNSF work while on a leave of 2 absence were not fired. See Miglio v. United Airlines, No. C13-573RAJ, 3 2014 WL 1089285, at *5 (W.D. Wash. March 17, 2014) (“[T]o pursue his 4 [discrimination] 5 United’s interpretation of the CBA. He could concede that the CBA 6 mandated his termination and nonetheless contend that United terminated 7 him 8 Accordingly, Rule 16(f) need not be interpreted in order for the 9 wrongful-discharge-in-violation-of-public-policy claim to be resolved. 10 See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413 & n.12 11 (1988) (“In a typical case a state tribunal could resolve either a 12 discriminatory or retaliatory discharge claim without interpreting the 13 ‘just 14 Burnside, 491 F.3d at 1071-72 (recognizing that looking to and examining 15 CBA provisions in order to resolve a state-law claim does not result in 16 preemption). because of cause’ claim his successfully, disability language of a in he does violation not of have to Washington collective-bargaining dispute law.”). agreement.”); 17 Accordingly, the Court finds Mr. McFarland’s wrongful-discharge 18 claim is not preempted by the RLA. BNSF’s motion to dismiss is denied 19 in this regard. 20 Next, BNSF argues that Mr. McFarland fails to state a claim for 21 relief because he is collaterally estopped from challenging BNSF’s Rule 22 16(f) termination as he pursued a grievance under the CBA procedures, 23 and therefore dismissal under Rule 12(b)(6) is required. In response, 24 Mr. McFarland argues that the Union and BNSF’s grievance procedure was 25 not sufficiently extensive as to permit the application of collateral 26 estoppel. ORDER - 9 Under Washington law, collateral estoppel3 requires the party 1 2 seeking preclusion to establish that: 6 (1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding, (2) the earlier proceeding ended in a judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding, and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied. 7 Christensen v. Grant Cnty. Hosp. Dist. No. 1, 152 Wn.2d 299, 307 (2004). 8 An “issue” to which collateral estoppel applies may be one of law, 9 evidentiary 3 4 5 fact, or the application of law to fact. Restatement 10 (Second) of Judgments § 27(c) (1982). Whatever the type of issue, it 11 must have been actually litigated and determined and that determination 12 must be essential to the judgment in order for litigation of that issue 13 to be collaterally estopped in a later action. Christensen, 152 Wn.2d, 14 at 307; Restatement (Second) of Judgments § 27(f)–(h) (1982); Moore’s 15 Federal Practice – Civil § 132.02. 16 The Court determines that collateral estoppel should not apply at 17 this time. The information before the Court does not identify that the 18 grievance proceeding was such a proceeding that Mr. McFarland, or the 19 Union on his behalf, actually litigated what the true basis for Mr. 20 McFarland’s termination was. More pointedly, there is no information 21 that the Union, on Mr. McFarland’s behalf, presented evidence, called 22 witnesses, made an opening or closing statement, submitted briefs, or 23 24 3 25 of public policy case. Christensen v. Grant Cnty. Hosp. Dist. No. 1, 152 Wn.2d 26 299, 313 (2004). Collateral estoppel may apply to an issue in a wrongful-discharge in violation ORDER - 10 1 otherwise litigated whether Mr. McFarland’s discharge was appropriate 2 under Rule 16(f); there is no information as to what legal standard, if 3 any, was applied during the CBA Rule 34 grievance proceeding; and the 4 Court was not provided a copy of any written decision or transcript from 5 an oral proceeding in which rulings were made. See Cloud ex rel. Cloud 6 v. 7 estoppel inappropriate where the legal standards were substantially 8 different); cf. Christensen, 152 Wn.2d at 316-17 (discussing that the 9 union’s lawyer made an opening statement, called and cross-examined 10 witnesses, offered exhibits, objected to evidence, and submitted post- 11 hearing briefing). Based on the record, Mr. McFarland did not have a 12 full and fair opportunity to present his case that he was wrongfully 13 discharged for pursuing a workplace-injury grievance and subsequent 14 lawsuit. See Lutheran Day Care v. Snohomish Cnty., 119 Wn.2d 91, 114 15 (1992) (Collateral estoppel “prevents the relitigation of an issue or 16 determination of fact after the party sought to be estopped has had a 17 full and fair opportunity to present his or her case.”). Application of 18 collateral estoppel would work an injustice on Mr. McFarland. Summers, 98 Wash. App. 724, 734–35 (1999) (finding collateral Accordingly, the Court denies BNSF’s motion to dismiss pursuant 19 20 to Rule 12(b)(6) 21 McFarland is not estopped from challenging BNSF’s proffered basis for 22 his termination through his state-law wrongful-discharge tort claim. 23 /// 24 /// 25 // 26 / ORDER - 11 because collateral estoppel does not apply: Mr. 1 D. Conclusion 2 For the above given reasons, IT IS HEREBY ORDERED: BNSF’s Motion 3 to Dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), ECF No. 7, is 4 DENIED. 5 6 7 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 5th day of May 2016. 8 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q:\EFS\Civil\2016\5024.dismiss.lc1.docx ORDER - 12
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