McFarland v. BNSF Railway Company

Filing 13

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)

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

25
26

ORDER - 1

is

not

collaterally

estopped

from

seeking

relief

under

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