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PENDER v. AMTRAK

November 14, 1985

PHILLIP E. PENDER, Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, Defendant


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, United States District Judge

MEMORANDUM

 The Court has before it defendant's motion to dismiss the complaint, Plaintiff's opposition, replies filed by plaintiff and defendant and defendant's motion for security for costs. For reasons stated below, the Court determines that the complaint should be dismissed and the motion for security for costs dismissed as moot.

 The Complaint

 Plaintiff, a black man, was employed by defendant as an Assistant Train Director responsible for directing train traffic in and out of Union Station. On March 21, 1984 plaintiff's supervisor instructed him to take a track out of service to permit workmen to do maintenance and repair work. Plaintiff failed to do so and a train advanced onto the track where workers were eating lunch but the workers were able to move out of the way in time to avert injury. Plaintiff was immediately suspended. After a hearing conducted by the company plaintiff was disqualified from working as an Assistant Train Director, and demoted to a position in another department at lower pay on April 25, 1984. Plaintiff's suspension and demotion was unsuccessfully appealed by his union. Plaintiff did not pursue an appeal to the National Railroad Adjustment Board (NRAB). Plaintiff filed this action on June 5, 1985.

 In Count I plaintiff alleges that defendant discriminated against him in violation of 42 U.S.C. § 1981 because at least two white employees who committed the same error were never suspended or demoted. In Count II plaintiff alleges that defendant inflicted emotional distress upon him by suspending and demoting him and by conducting the hearing on plaintiff's demotion in a manner which prevented his representatives from presenting the unfairness of defendant's treatment.

 Defendant maintains that the complaint must be dismissed because plaintiff's claims are preempted by The Railway Labor Act and barred by the applicable statute of limitations. We discuss each of these contentions in turn.

 I. Preemption of § 1981 Action by the Railway Labor Act

 The exclusive remedy for wrongful discharge or other minor disputes under a railroad collective bargaining agreement is the federal dispute settlement procedures provided by the Railway Labor Act, which provides for an appeal to the NRAB and limited judicial review of the NRAB's decision. 45 U.S.C. § 153; Union Pacific Railroad v. Sheehan, 439 U.S. 89, 58 L. Ed. 2d 354, 99 S. Ct. 399 (1978); Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 32 L. Ed. 2d 95, 92 S. Ct. 1562 (1972). The Supreme Court has left open the question of whether railroad employees must exhaust their administrative remedies under the act before bringing a § 1981 claim against their employer. Johnson v. Railway Express Agency, 421 U.S. 454, 457 n.3, 44 L. Ed. 2d 295, 95 S. Ct. 1716 n.3 (1975).

 The Court rejects defendant's argument that the Railway Labor Act requires exhaustion and preemption, and holds that the Act does not prevent railway employees from bringing civil rights suits under § 1981. The purpose of vesting the NRAB with exclusive jurisdiction over disputes which arise out of a collective bargaining agreement or are so closely related that there is a realistic threat that concurrent state court jurisdiction would interfere with the federal regulatory scheme is to create a single administrative forum for resolving collective bargaining disputes. Union Pacific, 439 U.S. at 94; Andrews, 406 U.S. at 324; Farmer v. United States Brotherhood of Carpenters & Joiners of America, 430 U.S. 290, 305, 51 L. Ed. 2d 338, 97 S. Ct. 1056 (1977). However, railway employees' federal statutory remedy for violations of § 1981 is independent of their collective bargaining rights. The preemption of this civil rights remedy cannot lightly be assumed. Even the closely analogous remedies provided under Title VII do not preempt or restrict this independent remedy for discrimination in employment. Johnson v. Railway Express, 421 U.S. at 460. There is no basis for concluding that the collective bargaining remedies provided by the Railway Labor Act should do so.

 Moreover, courts have repeatedly emphasized that statutory civil rights employment remedies supplement existing remedies under employment statutes and collective bargaining agreements. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47-48, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1973); Lafferty v. Northwest Airlines, Inc., 185 U.S. App. D.C. 322, 567 F.2d 429, 445 (D.C.Cir. 1976), cert. denied, 434 U.S. 1086, 55 L. Ed. 2d 792, 98 S. Ct. 1281 (1978). In addition, employees need not exhaust administrative remedies under a collective bargaining agreement or federal labor laws before bringing a civil rights action -- even if the collective bargaining grievance procedure provides a remedy for discrimination. See Alexander, 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011; Guerra v. Manchester Terminal Corp., 498 F.2d 641, 658, rehearing denied, 503 F.2d 567 (5th Cir. 1974) (interpreting National Labor Relations Act). "Both rights have legally independent origins and are equally available to the aggrieved employee." 415 U.S. at 52. The same principles apply to the Railway Labor Act, which does not indicate any Congressional intent to preempt or alter the remedies created by federal civil rights statutes. The Court concludes that § 1981 provides a parallel and overlapping cause of action, with its own procedures and remedies, which is not displaced by the Railway Labor Act.

 II. Statute of Limitations for § 1981.

 Since Congress provided no statute of limitations for § 1981 actions, federal courts must adopt an appropriate limitations period from local law. 42 U.S.C. § 1988; Johnson v. Railway Express, 421 U.S. at 462. Defendant argues that a one-year period of limitations applies because plaintiff's allegations essentially state a cause of action for intentional infliction of emotional distress that is much like the intentional torts enumerated in D.C. Code § 12-301(4), which provides for a one year period of limitations. Hanoch Tel-Oren v. Libyan Arab Republic, 517 F. Supp. 542, 550 (D.D.C. 1981). Moreover, defendant argues, plaintiff's allegations are directly analogous to the District of Columbia's Human Rights Law which also provides a one year limitations period. Davis v. Potomac Electric and Power Co., 449 A.2d 278 (D.C. App. 1982).

 Whatever the merits of defendant's conclusion, defendant's analysis of how to select the appropriate statute of limitations is incorrect in light of the Supreme Court's decision in Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985). In analyzing the "appropriate" local limitations period for § 1983 claims the Court stated that predicating "the choice of the correct statute on an analysis of each claim . . . inevitably breeds uncertainty and time consuming litigation that is foreign to the central purposes of § 1983 . . . Moreover, under such an approach different statutes of limitations would be applied to the the various § 1983 claims arising in the same State, and multiple periods of limitations would often apply to the same case." 105 S. Ct. at 1945-46. (footnotes omitted). Instead, the Court concluded that 42 U.S.C. § 1988 "is fairly construed as a directive to select, in each State, the one most appropriate statute of limitations for all § 1983 claims." 105 S. Ct. at 1947. A single, uniform limitations ...


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