MALOBABICH v. NORFOLK SOUTHERN CORPORATION
Filing
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MEMORANDUM OPINION AND ORDER granting 6 Motion to Dismiss for lack of jurisdiction, as explained therein. Signed by Judge Terrence F. McVerry on 5/10/11. (mh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CARL MALOBABICH,
Plaintiff,
v
NORFOLK SOUTHERN CORPORATION
Defendant.
)
)
)
) 2:11-cv-112
)
MEMORANDUM OPINION AND ORDER
Now pending before the Court is DEFENDANT’S MOTION TO DISMISS CARL
MALOBABICH’S COMPLAINT (Document No. 6). Defendant Norfolk Southern Corporation
(“NS”) filed a brief in support of its motion and attached multiple exhibits, including a copy of
the Collective Bargaining Agreement (“CBA”) it entered into with the International Brotherhood
of Electrical Workers (“Union”). Plaintiff Carl Malobabich (“Malobabich”) filed a response and
brief in opposition to the motion and Defendant filed a reply brief. The motion is ripe for
disposition.
Factual and Procedural Background
Malobabich is now 62 years old. In 2004, when Malobabich was 56 years old, NS hired
him as a student electrician. Malobabich became a journeyman electrician in August 2007.
Malobabich was the oldest electrician working on the second shift. He repeatedly bid for other
jobs, but was relegated to work on the Routine Maintenance line. Plaintiff alleges that this action
constituted age discrimination because younger electricians were able to obtain more desirable
jobs. Defendant contends that the job bidding and bumping rights of employees are mandated by
the CBA, and are based on seniority, not age. In November 2008, Malobabich filed charges of
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discrimination with the EEOC and PHRC. On December 13, 2010, Malobabich was suspended
from work without pay.
Malobabich filed a three-count Complaint which asserts: (1) a claim under the federal
Age Discrimination in Employment Act (“ADEA”); (2) a parallel age-discrimination claim
under the Pennsylvania Human Relations Act (“PHRA”); and (3) a tort claim for intentional
infliction of emotional distress. In the pending motion, Defendant seeks dismissal of all claims.
In his response, Malobabich concedes that he has not stated a valid claim for actions allegedly
taken by NS after October 29, 2010 (the date the EEOC dismissed his administrative complaint),
and that he has not stated a valid claim for intentional infliction of emotional distress.
Legal Analysis
As an initial matter, the Court must ensure that it may exercise subject-matter
jurisdiction. In this case, the jurisdictional analysis requires harmonization of two federal
statutes. The ADEA, 29 U.S.C. § 626(c)(1), provides that individuals who allege age
discrimination may bring an action in federal court to obtain legal or equitable relief. On the
other hand, the Railway Labor Act (“RLA”), 45 U.S.C. § 151a et seq., establishes arbitration
boards which have exclusive jurisdiction to resolve disputes over the interpretation or application
of CBAs in the railroad industry.
In determining whether subject-matter jurisdiction exists, the Court is not limited to the
allegations of the Complaint. Rather, the Court may also consider extraneous evidence
submitted by the parties. Blackwell v. American Airlines, Inc., 2003 WL 22159412 *2 (N.D. Ill.
2003) (citations omitted). Accordingly, the Court takes judicial notice of the existence of the
CBA between NS and the Union, and the seniority rules contained therein. Notably, Malobabich
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has not challenged the authenticity of the CBA, and indeed, counsel for Plaintiff has explained
that he “is not alleging that Defendant violated the CBA.” Plaintiff’s Brief at 10.
There has been some disagreement among the various courts as to the proper test for
determining whether the RLA takes precedence over discrimination statutes. The United States
Court of Appeals for the Third Circuit has not conclusively ruled upon this issue.
Some cases have held that claims arising under discrimination statutes would be barred
only if they raise a factual dispute or require interpretation of the terms of the CBA. See, e.g.,
Ellis v. National Railroad Passenger Corp., 2004 WL 257392 (E.D. Pa. 2004) (race
discrimination claim implicated employer’s motives rather than CBA); Stokes v. Norfolk
Southern Railway Co., 99 F.Supp.2d 966 (N.D. Ind. 2000) (same, although Stokes alleged that
the layoffs at issue also violated the CBA seniority rules); Blakely v. US Airways, Inc., 23 F.
Supp.2d 560 (W.D. Pa. 1998) (ADA claim not preempted); Mosqueda v. Burlington Northern
Santa Fe R.R., 981 F. Supp. 1403 (D. Kan. 1997) (Title VII race discrimination claim not
preempted by RLA). In Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 261 (1994), the United
States Supreme Court noted, in a similar context, that Congress did not intend to preempt state
law rights that exist independent of a CBA. In essence, Malobabich contends that his right to be
free from age discrimination under the ADEA and PHRA exists independently from the CBA.
Other cases have applied a broader preemption/preclusion rule.1 In International Ass'n of
Machinists and Aerospace Workers Dist. Local Lodge 1776 v. Jackson, 2010 WL 597247 (E.D.
Pa. 2010), the Court stated: “When a claim is ‘inextricably intertwined’ or ‘substantially
dependent upon analysis of the terms of an agreement made between the parties in a labor
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Technically, the term “preclusion” applies to federal claims such as the ADEA, while the term “preemption” refers
to state claims such as the PHRA, although the terms are often used interchangeably. Preemption of state law
invokes consideration of federalism principles and the Supremacy Clause, while preclusion requires the Court to
harmonize congressional intent as reflected in different statutes. See, e.g., Brown v. Illinois Central R.R., 254 F.3d
654, 661-62 (7th Cir. 2001).
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contract,’ the claim is preempted.” Id. at * 3 (citing Wall v. Americold Corp., 1997 WL 431006
at *2 (E.D. Pa. July 15, 1997) and Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 & 220
(1985)). In Wall, the Court found that an employee’s constitutional and tort claims for invasion
of privacy arising from the search of his work locker were preempted because they were
intertwined with the CBA. In Blackwell, the Court explained that if the heart of the dispute
between the parties is “intertwined with the collective bargaining agreement,” such that
interpretation of the terms of the CBA is necessary to resolve the dispute, “the RLA will take
precedence over the [ADEA], thereby denying a federal court subject matter jurisdiction over the
dispute.” 2003 WL 22159412 at *2. The Blackwell Court rejected the “narrow” preemption
position that is being advocated by Malobabich and held that the employee’s disability
discrimination claims were preempted by the RLA. The Court reasoned:
The conduct of American is not in question, as American admitted that it denied
Blackwell's request to bid on other jobs she felt entitled to and denied her request
to transfer to other locations. The issue before the Court is why American denied
her requests. Blackwell claims American denied her requests by discriminating
against her because of her disability, while American contends that it denied her
requests because she was not entitled to these requests under the seniority,
bidding, transfer, qualification and promotion provisions of the CBA. Therefore,
the Court would have to look at the CBA to determine what the qualifications
were for the jobs Blackwell claims she was entitled to, the procedures for bidding
and transferring, and the seniority system in place. For these reasons, we find that
resolution of the claims made in Count One of the Complaint requires an
examination into, and interpretation of, the terms of the Collective Bargaining
Agreement between Blackwell's Union and the Defendant American. Therefore,
Blackwell's claims in Count One are preempted by the Railway Labor Act, and
this Court has no jurisdiction to hear them.
Id. at * 3. The same scenario exists here. NS admittedly denied Malobabich’s requests for job
transfers, but contends that it did so in accordance with the seniority rules set forth in the CBA.
The Court will unavoidably have to examine the CBA to determine the validity of the claims and
the defense asserted by NS.
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The Court concludes that it lacks jurisdiction under the facts and circumstances of this
case. The age discrimination claims are not wholly independent from the CBA. Malobabich
was hired as a 56-year-old student electrician and he does not dispute that the younger
electricians had more seniority. His claim is adverse to the CBA seniority rights of his coworkers. Malobabich is not challenging the motives of NS, but instead, he facially challenges
the CBA seniority rules as violative of the ADEA. In other words, he contends that NS
committed age discrimination because it abided by the CBA seniority rules. Clearly, this dispute
is inextricably intertwined with and requires interpretation of the CBA.
In addition, Congress has recognized that Malobabich’s ADEA claim must be analyzed
in conjunction with the CBA. Pursuant to the ADEA, 29 U.S.C. § 623(f)(2)(A): “It shall not be
unlawful for an employer . . . to observe the terms of a bona fide seniority system that is not
intended to evade the purposes of this chapter.” This provision not only casts doubt on whether
Malobabich can ultimately succeed on the merits of his claims, it also reflects the intent of
Congress that his age discrimination claim be evaluated in the context of the seniority rules set
forth in the CBA which is governed by the RLA. In Brown, 254 F.3d at 668, the United States
Court of Appeals for the Seventh Circuit held that ADA claims were precluded because
interpretation of the CBA seniority provisions could conclusively dispose of the claim. In sum,
the Court concludes that it lacks subject-matter jurisdiction over this case.
In accordance with the foregoing, DEFENDANT’S MOTION TO DISMISS CARL
MALOBABICH’S COMPLAINT (Document No. 6) will be GRANTED.
An appropriate Order follows.
McVerry, J.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CARL MALOBABICH,
Plaintiff,
v
NORFOLK SOUTHERN CORPORATION
Defendant.
)
)
)
) 2:11-cv-112
)
)
ORDER OF COURT
AND NOW this 10th day of May 2011, in accordance with the foregoing Memorandum
Opinion, it is hereby ORDERED, ADJUDGED and DECREED that DEFENDANT’S MOTION
TO DISMISS CARL MALOBABICH’S COMPLAINT (Document No. 6) is GRANTED. The
clerk shall docket this case closed.
BY THE COURT:
s/Terrence F. McVerry
United States District Judge
cc:
Jason Plakosh, Esquire
Email: jplakosh@hotmail.com
Jaime S. Tuite, Equire
Email: Jaime.Tuite@bipc.com
Emilie R. Hammerstein, Esquire
Email: emilie.hammerstein@bipc.com
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