Flibotte v. PA Truck Lines, Inc. ( 1997 )


Menu:
  • USCA1 Opinion








    UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

    _________________________


    No. 95-1197


    ALBERT A. FLIBOTTE, ET AL.,

    Plaintiffs, Appellants,

    v.

    PENNSYLVANIA TRUCK LINES, INC.,

    Defendant, Appellee.

    _________________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Nancy Gertner, U.S. District Judge] ___________________

    _________________________

    Before

    Selya and Boudin, Circuit Judges, ______________

    and Dowd,* Senior District Judge. _____________________

    _________________________

    Malcolm J. Barach for appellants. _________________
    Regina C. Reardon, with whom Brian P. Crowner and Bray & __________________ _________________ ______
    Reardon, P.C. were on brief, for appellee. _____________

    _________________________


    December 10, 1997
    _________________________

    _______________
    *Of the Northern District of Ohio, sitting by designation.

















    SELYA, Circuit Judge. Having prevailed before a jury, SELYA, Circuit Judge. _____________

    plaintiff-appellant Albert A. Flibotte saw his apparent victory

    turn to ashes when the district court entered judgment as a

    matter of law in favor of defendant-appellee Pennsylvania Truck

    Lines, Inc. (PTL) on the ground that Flibotte's claims were

    preempted by section 301 of the Labor Management Relations Act of

    1947, 29 U.S.C. 185 (1994). Flibotte beseeches us to reinstate

    the jury verdict. We are unable to do so.

    I. I. __

    Background Background __________

    Flibotte, a member of Teamsters Local 25, spent almost

    three decades in PTL's employ. This relationship persisted until

    PTL terminated him in 1987 for his refusal to participate in a

    drug testing procedure a refusal that, under the applicable

    collective bargaining agreement, "constitute[d] a presumption of

    intoxication." National Master Freight Agreement, Art. 35, Sec.

    3 (NMFA). Local 25 filed a grievance on Flibotte's behalf

    pursuant to the NMFA and eventually took the case to binding

    arbitration. The arbitrator found that Flibotte's ouster did not

    violate the collective bargaining pact and rejected the

    grievance.

    Flibotte subsequently filed a civil action against PTL

    in a Massachusetts state court. In addition to a derivative

    claim for loss of consortium on behalf of Mrs. Flibotte, the

    complaint contained counts for negligence, invasion of privacy,

    impairment of civil rights, defamation, negligent infliction of


    2












    emotional distress, and intentional infliction of emotional

    distress. Flibotte alleged that PTL notified a group of 37

    employees, himself included, to report on March 13, 1987, for the

    biennial physical examination and drug test required under

    federal motor carrier safety regulations; that he refused

    "because his examination was not yet due and because the

    [designated examination site] was rat-infested"; that, within one

    week after he boycotted the scheduled test, he took and passed a

    drug test administered by his own physician; and that PTL

    nonetheless discharged him summarily on March 18, 1987. He

    claimed that in so doing, PTL wrongfully terminated his

    employment and, in the bargain, breached various state-law

    duties.

    PTL removed the case to the United States District

    Court for the District of Massachusetts on dual bases (diversity

    of citizenship and the existence of a federal question). After

    the usual preliminaries including the denial of PTL's motion

    for summary judgment the case proceeded to trial before Judge

    Nelson and a jury. During the ensuing eight-day trial, PTL twice

    moved for judgment as a matter of law on the ground of section

    301 preemption. Judge Nelson denied one such motion at the end

    of the plaintiff's case and the other at the close of all the

    evidence. In due season, the jury returned a verdict for

    Flibotte on three counts negligence, negligent infliction of

    emotional distress, and intentional infliction of emotional

    distress and awarded him $625,000 in damages.


    3












    Like the mills of the gods, the mills of the judiciary

    sometimes grind exceedingly slow. On November 20, 1991, PTL made

    a timely motion for judgment as a matter of law, see Fed. R. Civ. ___

    P. 50(b), in which it again hawked section 301 preemption. The

    motion sat unresolved when, in April of 1992, PTL sought the

    bankruptcy court's protection under Chapter 11, thus triggering

    an automatic stay of proceedings in the district court. See 11 ___

    U.S.C. 362 (1990). Some seventeen months later, the bankruptcy

    court confirmed a plan of reorganization. PTL's emergence from

    the toils of bankruptcy cleared the way for resumption of the

    district court proceedings. By then, however, Judge Nelson had

    become disabled and a considerable period of time elapsed before

    the case was reassigned and a new jurist, Judge Gertner, took up

    the outstanding motion. She eventually granted it, provoking

    this appeal.

    Flibotte's objections possess both procedural and

    substantive dimensions. First, he argues that Judge Gertner

    erred when she purposed to revisit issues previously decided by

    Judge Nelson. Second, he assails the merits of her determination

    that section 301 preempts his state-law claims. We address each

    of these objections in turn.

    II. II. ___

    Law of the Case Law of the Case _______________

    Flibotte's procedural objection has a chameleonic

    quality. In one iteration, it implies that Judge Gertner

    improperly made fact-based determinations contrary to those made


    4












    by her predecessor and in flagrant disregard of the truism that

    the judge who actually presides over a trial is in a superior

    position to make such determinations. Without engaging the

    myriad counter-precedential assumptions that are essential to

    this objection, it suffices to say that the legal framework in

    which motions for judgment as a matter of law exist does not

    permit courts confronted with such motions to engage in

    differential factfinding, see Veranda Beach Club Ltd. Partnership ___ ___________________________________

    v. Western Sur. Co., 936 F.2d 1364, 1383-84 (1st Cir. 1991) _________________

    (discussing applicable standards), and there is no indication

    here that Judge Gertner disobeyed these guidelines.

    Flibotte's next iteration of his procedural objection

    is no more rewarding. He asserts that a court is bound by its

    own precedents, and that, therefore, Judge Gertner was

    incompetent to revise Judge Nelson's answers to the legal

    questions posed by the case. This objection is an apparent

    effort to employ the venerable law of the case doctrine, which

    states in the large that, unless corrected by an appellate

    tribunal, a legal decision made at one stage of a civil or

    criminal case constitutes the law of the case throughout the

    pendency of the litigation. See, e.g., United States v. Bell, ___ ____ _____________ ____

    988 F.2d 247, 250 (1st Cir. 1993); Abbadessa v. Moore Bus. Forms, _________ _________________

    Inc., 987 F.2d 18, 22 (1st Cir. 1993). ____

    This principle is of no real assistance to Flibotte.

    Although temporally distant from each other, Judge Nelson's

    denial of PTL's motions for summary judgment and for judgment as


    5












    a matter of law, on the one hand, and Judge Gertner's decision to

    grant PTL's post-verdict motion for judgment as a matter of law,

    on the other hand, occurred in the context of a single trial of a

    single case in a single court, with no intervening appeal. Judge

    Nelson and Judge Gertner, therefore, play the same institutional

    role for the purpose of this litigation.

    That confluence of judicial identities is dispositive

    here. "Under the law of the case doctrine, as it is commonly

    understood, it is not improper for a court to depart from a prior

    holding if convinced that it is clearly erroneous and would work

    a manifest injustice." Arizona v. California, 460 U.S. 605, 619 _______ __________

    n.8 (1983). Moreover, it is perfectly appropriate for a judge to

    refuse to direct a verdict, permit the jury to consider a case,

    and thereafter to grant judgment notwithstanding the verdict.

    See Talbot-Windsor Corp. v. Miller, 309 F.2d 68, 69 (1st Cir. ___ _____________________ ______

    1962). Accordingly, Judge Nelson would have been free to grant

    PTL the relief that it sought in its post-verdict motion

    notwithstanding his previous rulings; and Judge Gertner, who

    stood in his shoes, was at liberty to do the same. Consequently,

    Judge Gertner did not arrogate unto herself any undue authority

    when she entertained PTL's renewed post-verdict motion for

    judgment as a matter of law and reached a different conclusion

    than had her co-equal predecessor.

    III. III. ____

    Section 301 Preemption Section 301 Preemption ______________________

    Having found no procedural glitch, we turn to Judge


    6












    Gertner's decision. We review a ruling on a motion for judgment

    as a matter of law de novo, applying the identical legal

    standards that constrain the district court. See Colasanto v. ___ _________

    Life Ins. Co. of N. Am., 100 F.3d 203, 208 (1st Cir. 1996). _________________________

    Accordingly, "the evidence and all reasonable inferences

    extractable therefrom must be examined in the light most

    favorable to the nonmovant and a [judgment as a matter of law]

    should be granted only when the evidence, viewed from this

    perspective, is such that reasonable persons could reach but one

    conclusion." Veranda Beach, 986 F.2d at 1383-84.1 _____________

    A. A. __

    The Legal Landscape The Legal Landscape ___________________

    Read literally, section 301 confers federal court

    jurisdiction over "[s]uits for violation of contracts between an

    employer and a labor organization representing employees in an

    industry affecting commerce." Over the years, however, the

    ____________________

    1This case has a peculiar twist. It appears that Judge
    Gertner, though new to the case, ruled on the motion without the
    benefit of a trial transcript, and a complete transcript has not
    been prepared to this date. We need not probe too deeply into
    the question of which way the absence of this transcript cuts.
    In most cases, a transcript would form an integral part of the
    court's decisional calculus on a post-verdict motion for judgment
    as a matter of law. Here, however, the critical issue
    preemption embodies a pure question of law susceptible to
    resolution on the face of the pleadings (as supplemented by the
    collective bargaining agreement). In ruling on the motion for
    judgment as a matter of law, Judge Gertner hewed to this line and
    did not make any extraneous factual findings or assumptions.
    Because the judge's analysis and decision did not need to engage
    any facts derived from trial testimony, this is the rare case in
    which the absence of a trial transcript is immaterial to the
    correctness of a ruling on a post-verdict motion for judgment as
    a matter of law.

    7












    Supreme Court has placed a heavy gloss on this language,

    beginning with its holding that the statute empowers federal

    courts to craft federal common law reasonably necessary to

    effectuate the objectives of section 301. See Textile Workers v. ___ _______________

    Lincoln Mills, 353 U.S. 448, 451 (1957). This substantive ______________

    authority to declare federal common law soon formed the basis for

    an emerging jurisprudence of preemption. See Martin v. Shaw's ___ ______ ______

    Supermarkets, Inc., 105 F.3d 40, 41-42 (1st Cir.) (recounting __________________

    development of section 301 preemption), cert. denied, 118 S. Ct. _____ ______

    69 (1997). Today, labor-law preemption casts a relatively wide

    net. Thus, section 301 preempts a state-law claim "if the

    resolution of [that] claim depends on the meaning of a

    collective-bargaining agreement." Lingle v. Norge Div. of Magic ______ ___________________

    Chef, Inc., 486 U.S. 399, 405-06 (1988). __________

    This rule is not without limitations. The Court has

    cautioned that "purely factual questions about an employee's

    conduct or an employer's conduct and motives do not require a

    court to interpret any term of a collective-bargaining

    agreement." Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 262 _______________________ ______

    (1994) (citation and internal quotation marks omitted). It also

    has warned that section 301 "cannot be read broadly to pre-empt

    nonnegotiable rights conferred on individual employees as a

    matter of state law." Livadas v. Bradshaw, 512 U.S. 107, 123 _______ ________

    (1994). Even so, the basic test remains that prescribed by

    Lingle and its progeny: that section 301 preempts a state-law ______

    claim, whether founded upon the state's positive or common law,


    8












    if a court, in passing upon the claim, would be required to

    interpret the collective bargaining agreement. See id. In ___ ___

    practice, this test boils down to whether the asserted state-law

    claim plausibly can be said to depend upon the meaning of one or

    more provisions within the collective bargaining agreement.

    A state-law claim can "depend" on the "meaning" of a

    collective bargaining agreement in two ways. First, a claim so

    qualifies if it alleges conduct that arguably constitutes a

    breach of a duty that arises pursuant to a collective bargaining

    agreement. See United Steelworkers v. Rawson, 495 U.S. 362, 369 ___ ___________________ ______

    (1990) ("[A] state-law tort action against an employer may be

    pre-empted by 301 if the duty to the employee of which the tort

    is a violation is created by a collective-bargaining agreement

    and without existence independent of the agreement."). Second, a

    claim so qualifies if its resolution arguably hinges upon an

    interpretation of the collective bargaining agreement. See ___

    Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985) (finding ____________________ _____

    section 301 preemption "when resolution of a state-law claim is

    substantially dependent upon analysis of the term of an agreement

    made between the parties in a labor contract"). If a state-law

    claim depends on the meaning of the collective bargaining

    agreement in either of these ways that is, under Rawson's ______

    "duty" rubric or under Allis-Chalmers's "interpretation" rubric ______________

    it is preempted.

    B. B. __

    The Merits The Merits __________


    9












    At trial, Flibotte prevailed on three state-law claims:

    negligence, negligent infliction of emotional distress, and

    intentional infliction of emotional distress. Our review of the

    pleadings, supplemented by the items that Flibotte included in

    the record appendix on appeal (such as the collective bargaining

    agreement) confirms that none of these three claims involves

    rights that are made non-negotiable under state law and that all

    of them are preempted by section 301. For clarity's sake, we

    begin with the negligence claims and then focus on the

    intentional infliction claim.

    1. Negligence. If Flibotte's two negligence-based 1. Negligence. __________

    claims are to escape preemption, he must establish that they do

    not spring from duties imposed by the collective bargaining

    agreement, but, rather, that PTL has acted "in a way that might

    violate the duty of reasonable care owed to every person in

    society." Rawson, 495 U.S. at 371. This would be no mean feat. ______

    Even assuming, favorably to Flibotte, that PTL allegedly breached

    duties derived from a source extrinsic to the collective

    bargaining agreement, the resolution of the negligence claims

    nonetheless depends upon the interpretation of that agreement.

    Consequently, those claims are preempted under section 301. We

    explain briefly.

    Flibotte's damage claim, as framed in his complaint,

    links both his economic losses and his emotional distress

    directly to his termination. In order to prevail on these

    claims, he must prove that PTL wrongfully discharged him. If PTL


    10












    acted within its contractual rights in severing the tie, then it

    could not have breached its general duty of care. It is clear to

    us that we cannot resolve this question, involving the propriety

    of Flibotte's firing, without substantial inquiry into the

    intricacies of the collective bargaining agreement. After all,

    the appellant concedes that PTL cashiered him because he failed

    to appear for a scheduled drug test, and the collective

    bargaining agreement in force here the NMFA governs both the

    frequency of testing, see NMFA Uniform Testing Procedure, Sec. ___

    IIB, and the consequences of a failure to take an offered test,

    see NMFA, Art. 35, Sec. 3. Hence, it is impossible to determine ___

    PTL's negligence without inquiring into its rights and

    obligations as described by the collective bargaining agreement.

    This mandatory consultation separates the instant case from those

    that raise purely factual questions and thus begets section 301

    preemption.

    If more were needed and we do not think that it is

    we also would note that Flibotte's negligence claims are

    preempted to the extent that they stem from his contention that

    the conditions of the requested test were unsanitary and violated

    the employer's duty to provide a suitable hygienic environment

    for the examination. This duty derives from the employment

    relationship as defined in the collective bargaining agreement,

    and as such, it cannot form the basis for a state-law claim. A

    plaintiff cannot skirt section 301 preemption by the simple

    expedient of recharacterizing an employer's substandard


    11












    performance of duties that devolve upon it pursuant to the terms

    of the collective bargaining agreement as a tort. See Rawson, ___ ______

    495 U.S. at 371-72.

    2. Intentional Infliction of Emotional Distress. This 2. Intentional Infliction of Emotional Distress. ____________________________________________

    leaves only the appellant's claim for intentional infliction of

    emotional distress. To prevail on that claim, Flibotte had to

    prove that PTL (1) intended to inflict emotional distress by (2)

    undertaking actions that were extreme and outrageous, thereby (3)

    causing emotional distress which (4) was severe. See Wagenmann ___ _________

    v. Adams, 829 F.2d 196, 213-14 (1st Cir. 1987); Agis v. Howard _____ ____ ______

    Johnson Co., 355 N.E.2d 318-19 (Mass. 1976). Under Massachusetts ___________

    law, "extreme and outrageous conduct" is behavior that is "so

    outrageous in character, and so extreme in degree, as to go

    beyond all possible bounds of decency, and to be regarded as

    atrocious, and utterly intolerable in a civilized community."

    Foley v. Polaroid Corp., 508 N.E.2d 72, 82 (Mass. 1987). _____ ______________

    PTL's rights and obligations under the collective

    bargaining agreement are obviously central not only to an inquiry

    into PTL's intentions, but also to an inquiry into whether PTL

    conducted itself in a sufficiently outrageous manner to give rise

    to liability under state tort law. It is a well-settled

    principle that a party cannot be liable if it does no more than

    "insist upon [its] legal rights in a permissible way, even though

    [it] was well aware that such insistence is certain to cause

    emotional distress." Restatement (Second) of Torts, 46 cmt. g

    (1965); see Rush v. United Technologies, 930 F.2d 453, 456 (6th ___ ____ ___________________


    12












    Cir. 1991). If PTL was within its rights to require Flibotte to

    take a drug test at the designated site and to terminate him when

    he refused to do so, a claim for intentional infliction of

    emotional distress cannot lie.2 Because the resolution of these

    issues necessitates examination of the collective bargaining

    agreement, the claim is preempted. See Allis-Chalmers, 471 U.S. ___ ______________

    at 213; see also Jackson v. Liquid Carbonic Corp., 863 F.2d 111, ___ ____ _______ _____________________

    119 (1st Cir. 1988) (upholding section 301 preemption in a drug

    testing case on the ground, inter alia, that "[o]nly by probing _____ ____

    the contours of the [collective bargaining agreement] can one

    answer whether the [drug testing] program was legitimately

    implemented").

    IV. IV. ___

    Conclusion Conclusion __________

    We are not without sympathy for Flibotte, who obtained

    a large verdict many years ago, then was plunged into a longeval

    legal limbo, and ultimately saw his prized damage award vanish

    when a new judge came on the scene. It is understandable that

    Flibotte views the newly arrived judge as the juridical

    equivalent of the Grinch who stole Christmas, but in actuality,

    the judge did no more than her duty. As she recognized, the

    resolution of each of Flibotte's state-law claims requires an
    ____________________

    2It bears repeating that an arbitrator has already ruled in
    PTL's favor on the propriety of Flibotte's discharge, and that an
    historic reason for section 301's extensive preemptive scope was
    "to ensure that, when developed, the resultant rules would be
    applied through the grievance procedures agreed upon between
    unions and management." Jackson v. Liquid Carbonic Corp., 863 _______ ______________________
    F.2d 111, 114 (1st Cir. 1988). This reason remains valid today.

    13












    examination of the terms of the collective bargaining agreement

    and, as a result, the claims are preempted under section 301.

    Because the district court correctly divined and applied the law,

    we can go no further.



    Affirmed. Affirmed. ________










































    14