Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters v. Green et al

Filing 19

FINDINGS AND RECOMMENDATIONS: IT IS RECOMMENDED that 5 MOTION to Dismiss filed by The Montana Department of Labor & Industry be GRANTED and 8 MOTION to Dismiss for Lack of Jurisdiction filed by Paul Green be DENIED. Objections to F&R due by 9/15/2011. Signed by Magistrate Carolyn S Ostby on 8/29/2011. (JDH, ) Modified on 8/29/2011 to correct document type (JDH, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
BROTHERHOOD OF
MAINTENANCE OF WAY
EMPLOYES DIVISION OF THE
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS,

CV 11-35-BLG-RFC-CSO

FINDINGS AND
RECOMMENDATIONS OF
UNITED STATES
MAGISTRATE JUDGE

Plaintiff,
vs.
PAUL GREEN and THE
MONTANA DEPARTMENT OF
LABOR & INDUSTRY, HUMAN
RIGHTS BUREAU,
Defendant.
Plaintiff Brotherhood of Maintenance of Way Employes1 Division
of the International Brotherhood of Teamsters (“BMWED”) filed this
action against Paul Green (“Green”) and the Montana Department of
Labor & Industry, Human Rights Bureau (“HRB”) seeking declaratory
and injunctive relief with respect to a discrimination complaint Green

1

BMWED’s name is spelled with one “e.”
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filed with the HRB. Court Doc. 1. Currently pending are Defendants’
Motions to Dismiss (Court Docs. 5 & 8).2
I.

BACKGROUND
BMWED is a union of maintenance way employees, and is a

division of the Brotherhood of Teamsters. Court Doc. 1 at ¶ 2.
BMWED is the bargaining representative for maintenance way
employees who are employed by the Burlington Northern Sante Fe
Railroad (“BNSF”). BNSF is an interstate rail freightway subject to the
Railway Labor Act (“RLA”). Court Doc. 1 at ¶ 6. Paul Green is a
member of the BMWED.
As part of its operation, BNSF employs “safety assistants.” “The
safety assistant is a position created by the union negotiated Collective
Bargaining Agreement [(“CBA”)] ... .” Court Doc. 1 at ¶ 7. The
“qualifications for employment as a safety assistant and the manner in
which safety assistants are hired is set forth in the CBA.” Court Doc. 1
at ¶ 13. Pursuant to the CBA, BNSF employees cannot bid on positions

2

HRB filed a combined motion to dismiss and brief in support.
This filing violates Local Rule 7.1(d)(1)(A), which states: “Briefs in
support of a motion must be filed separately from the motion.”
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while they are on sick leave. Court Doc. 1 at ¶ 9. Defendant Green
requested an interview for a safety assistant position that was up for
bid, but he was denied an interview because he was on sick leave.
Court Doc. 1 at ¶¶ 10-11.
Upon being denied an interview, Green filed a complaint with the
HRB alleging violations of the Montana Human Rights Act (“MHRA”).
Court Doc. 1 at ¶ 12. Specifically, Green alleges employment-based
disability discrimination.
BMWED filed this action seeking a declaration that Green’s
claims are preempted by the RLA and an injunction enjoining Green
and the HRB from proceeding with any administrative action regarding
Green’s claims. Court Doc. 1 at 6-7, ¶¶ 1-2.
II.

PARTIES’ ARGUMENTS
A.

HRB’s Arguments

The Montana HRB argues that this action should be dismissed for
lack of subject matter jurisdiction, under Rule 12(b)(1).3 In support of
its motion, HRB contends that the Eleventh Amendment to the United

3

All references are to the Federal Rules of Civil Procedure unless
otherwise indicated.
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States Constitution bars BMWED’s claims against it, a state agency.
HRB argues that this case cannot go forward against it because
Montana has not waived its sovereign immunity nor has the United
States Congress abrogated Montana’s sovereign immunity – with
respect to the allegations made here. Court Doc. 5 at 2-4.
HRB next argues that the MHRA provides an exclusive remedy
for “the adjudication of complaints of discrimination... .” Court Doc. 5
at 4. Accordingly, HRB contends that the Human Rights Bureau is the
appropriate forum for adjudication of Green’s discrimination claim.
Court Doc. 5 at 4-5.
B.

Green’s Arguments

Green moves to dismiss BMWED’s Complaint “for lack of
jurisdiction over the subject matter.” Court Doc. 8 at 1.
In support of his motion, Green first argues that the MHRA
provides his exclusive remedy and the DLI’s Hearings Bureau is the
proper forum for adjudicating his claims of discrimination. Court Doc.
9 at 2-4. Next, Green argues that the Eleventh Amendment bars this
action due to Montana’s sovereign immunity. Court Doc. 9 at 4.

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C.

BMWED’s Arguments

In response to HRB and Green’s motions, BMWED first argues
that this Court has jurisdiction because it is seeking to enjoin
enforcement of an order on the basis of preemption. Court Doc. 11 at 7.
Next, it argues that the RLA preempts Montana law with respect to
Green’s claims – and thus this Court has jurisdiction in this matter.
Court Doc. 11 at 9-11. BMWED further argues that the MHRA does
not provide Green’s exclusive remedy because the MHRA is preempted
by the RLA. Accordingly, BMWED contends that the RLA’s mandatory
arbitration scheme is the only forum available to adjudicate Green’s
claims. Court Doc. 11 at 13-20.
Additionally, BMWED acknowledges in its response that the
Eleventh Amendment bars suits against a state or state agency. Court
Doc. 11 at 11-12. But BMWED contends that there is an exception to
the bar with respect to suits for prospective injunctive relief. Court
Doc. 12.
III. LEGAL STANDARD
Federal courts are courts of limited jurisdiction. They possess

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only that power authorized by Constitution and statute, which is not to
be expanded by judicial decree. The burden of establishing jurisdiction
rests upon the party asserting it. Rattlesnake Coal v. E.P.A., 509 F.3d
1095, 1102 n.1 (9th Cir. 2007).
“Unless the jurisdictional issue is inextricable from the merits of a
case, the court may determine jurisdiction on a motion to dismiss for
lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil
Procedure.” Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009)
(quoting Kingman Reff Atol Invs., L.L.C. v. United States, 541 F.3d
1189, 1195 (9th Cir. 2008)). The Court does not presume that a
plaintiff’s factual allegations are true, but instead weighs the evidence
to find the facts, so long as this factfinding does not involve the merits
of the dispute. See Robinson, 586 F.3d at 685.
IV.

DISCUSSION
A.

HRB’s Motion to Dismiss

“The Eleventh Amendment precludes suits ‘in law or equity,
commenced or prosecuted against one of the United States by Citizens
of another State, or by Citizens or Subjects of any Foreign State.’” In re

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Pegasus Gold Corp., 394 F.3d 1189, 1195 (9th Cir. 2005) (quoting Tenn.
Student Assistance Corp. v. Hood, 541 U.S. 440, 446 (2004); U.S. Const.,
Amend. XI). For more than a century, however, the Supreme Court has
recognized that the states’ sovereign immunity is not limited to the
literal terms of the Eleventh Amendment – it has been “repeatedly held
that an unconsenting State also is immune from suits by its own
citizens.” Tenn. Student Assistance Corp., 541 U.S. at 446. “Thus,
agencies of the state are immune from private damage actions or suits
for injunctive relief brought in federal court.” Pegasus, 394 F.3d at
1195.
Here, BMWED has named the HRB as a defendant. It has long
been held that an agency of state government is a part of the state for
purposes of the Eleventh Amendment. See, e.g., Florida Dept. of Health
& Rehabilitative Servs., 450 U.S. 147, 150 (1981) (see also Erwin
Chemerinsky, Constitutional Law: Principles and Policies § 2.10.3, 19798 (3d ed., Aspen Publishers 2006). BMWED points to no waiver of the
state’s sovereign immunity. Consequently, the Court concludes that
this state agency is immune from suit under the Eleventh Amendment.

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BMWED does point to Ex parte Young, 209 U.S. 123 (1908), as
providing an exception to Eleventh Amendment immunity in cases
where a plaintiff is seeking only prospective injunctive relief. The
narrow exception to Eleventh Amendment immunity contained in Ex
parte Young, however, applies only to suits against state officers.4 See
id. at 159-60. Here, BMWED has named a state agency. Accordingly,
the Court finds BMWED’s arguments unpersuasive, and concludes
BMWED’s claims against HRB should be dismissed.
B.

Green’s Motion to Dismiss

Green moves to dismiss the Complaint for lack of subject matter
jurisdiction. This motion should be denied because the Court clearly
has subject matter jurisdiction of the claims against Green under 28
U.S.C. § 1331. Federal questions are raised by the Complaint. See
Court Doc. 1 at 2-3.
4

BMWED seemingly acknowledges that sovereign immunity
protects HRB from suit and the Ex parte Young exception applies only
to state agency officials, stating that “to the extent that BMWED is
required to name individuals associated with the Montana Department
of Labor & Industry, Human Rights Bureau, in order to move forward
with their requested prospective injunctive relief, BMWED will do so.”
Court Doc. 11 at 12. BMWED has not, however, filed a motion for leave
to file an amended complaint or join additional parties.
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The more difficult question is whether this Court should abstain
under Younger v. Harris, 401 U.S. 37, 43 (1971). See also Woodfeathers,
Inc. v. Washington County, Or., 180 F.3d 1017 (9th Cir. 1999); Westvaco
Corp. Envelope Division v. Campbell, 842 F.Supp. 1472 (D. Mass. 1994).
But Green did not file a motion for abstention and did not raise the
abstention issue until his reply brief. See Court Doc. 17 at 4. BMWED
has not had an opportunity to be heard on this issue.
V.

CONCLUSION

Based on the foregoing, IT IS RECOMMENDED that HRB’s
motion to dismiss (Court Doc. 5) be GRANTED and that Green’s
motion to dismiss (Court Doc. 8) be DENIED.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall
serve a copy of the Findings and Recommendations of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendation must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after service
hereof, or objection is waived.

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DATED this 29th day of August, 2011.

/s/ Carolyn S. Ostby
United States Magistrate Judge

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