MCCRUMB v. UNION RAILROAD COMPANY, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SCOTT MCCRUMB, )

) No. 2:21-cv-718

Plaintiff, )

)

vs. ) Judge Robert J. Colville

)

UNION RAILROAD COMPANY, LLC, )

)

Defendant. )

)

MEMORANDUM OPINION

Robert J. Colville, United States District Judge

Before the Court is the Motion to Dismiss (ECF No. 20) filed by Defendant Union Railroad

Company, LLC. In this case, Plaintiff Scott McCrumb alleges that Defendant, his former

employer, targeted and improperly terminated Plaintiff on the basis of his age in an effort to “weed

out” employees over the age of 40. Defendant seeks dismissal of Plaintiff’s operative Amended

Complaint (ECF No. 19) (the “Complaint”) pursuant to Fed. R. Civ. P. 12(b)(1) on the basis that

this Court lacks subject matter jurisdiction in this case because “all claims against Defendant are

entirely precluded and foreclosed by the Railway Labor Act, 45 U.S.C. § 151, et seq. (“RLA”).”

Mot. ¶ 2, ECF No. 20. In the alternative, Defendant seeks dismissal of Plaintiff’s Age

Discrimination in Employment Act (“ADEA”) claim (Count I) and Pennsylvania Human Relations

Act (“PHRA”) claim (Count II) under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Id. at

¶¶ 3-4. Defendant’s Motion has been fully briefed and is ripe for disposition.

I. Factual Background

A. Plaintiff’s Allegations

In the Complaint, Plaintiff sets forth the following factual allegations relevant to the

Court’s consideration of the Motion at issue:

Plaintiff was born on October 14, 1965. Compl. ¶ 18, ECF No. 19. Plaintiff was hired by

Defendant, a railroad transportation company, in May of 2005. Id. at ¶ 19. On July 4, 2019,

Plaintiff, who was 53 years old at the time, informed Defendant that he would be late for work.

Id. at ¶ 20. Upon arriving at work on July 4, 2019, Plaintiff was immediately sent for a drug and

alcohol test before he had an opportunity to punch in or begin his shift. Id. at ¶¶ 20; 22; 31. When

Plaintiff was sent for the test, Plaintiff was not so impaired as a result of alcohol and/or drug use

that he was unable to fulfill his work duties. Id. at ¶ 21. Defendant’s management was aware that

Plaintiff had previously struggled with alcohol use, and, given Plaintiff’s notice that he would be

late on July 4, 2019, was further aware that there was a likelihood that he would fail an alcohol

test if sent for such a test immediately upon arriving at work on July 4. Id. at ¶ 25. Plaintiff failed

the alcohol test due to a finding of a minimal amount of alcohol in Plaintiff’s system. Id. at ¶ 26.

Defendant subsequently terminated Plaintiff’s employment.

At the time Plaintiff was fired, Defendant maintained a procedure that permitted an

employee, including those under the age of 40, who had failed an alcohol test to take a 30-day

leave from work to attend an alcohol treatment program and, following completion of the program,

to return to work. Compl. ¶ 27, ECF No. 19. Plaintiff was not given an opportunity to complete

such treatment and return to work following the July 4, 2019 failed test. Id. at ¶ 28. Further,

Defendant maintained a practice of subjecting employees under the age of 40 to either: (1) random

drug tests; or (2) drug/alcohol tests only after the employee was observed to be displaying signs

of alcohol consumption; and Defendant did not, as it did with Plaintiff, subject employees under

the age of 40 to tests immediately upon their arrival at work and prior to the beginning of their

shift. Id. at ¶ 31. With respect to Plaintiff’s failed test, Plaintiff avers that Defendant utilized a

method of alcohol testing that was inconsistent with prior practice “to catch the Plaintiff in some

infraction to provide an excuse to fire the Plaintiff as part of the pretextual scheme to terminate

Union Railroad employees over the age 40.” Id. at ¶ 24.

While Defendant cited its “demerits system” as the basis for termination at the time it

terminated Plaintiff, Plaintiff claims that Defendant’s purportedly discriminately applied alcohol

test and subsequent discipline were the basis for his termination. Compl. ¶ 32, ECF No. 19. At

the time of the alcohol infraction and in justifying Plaintiff’s termination, Defendant retroactively

applied demerits for a previous incident involving delegation of work in which the Plaintiff

received a verbal warning, but no demerits. Id. at ¶ 33. With respect to employees under the age

of 40, Defendant did not retroactively apply demerits that were not of record at the time of the

employee’s dismissal in terminating the employment of such younger employees. Id. at ¶¶ 34-35.

Plaintiff avers that approximately 90 of Defendant’s former employees over the age of 40 have

been fired by Defendant over the course of the last nine years, and that this number is,

proportionately speaking, greatly in excess of the number of employees under 40 who have been

separated from their employment with Defendant during the same timeframe. Id. at ¶ 37.

Plaintiff filed a Charge of Discrimination for age discrimination with the Equal

Employment Opportunity Commission (“EEOC”) on November 18, 2019, within 180 days of the

termination of his employment, which Charge was dual filed with the Pennsylvania Human

Relations Commission (“PHRC”). Compl. ¶ 9, ECF No. 19. Plaintiff avers that the EEOC has

issued a Right to Sue letter to the Plaintiff, and that Plaintiff has filed this action with 90 days of

the issuance of the Right to Sue letter. Id. at ¶ 10.

B. Defendant’s Allegations

Defendant asserts that the following additional facts alleged by Defendant are relevant to

the Court’s consideration of Defendant’s Rule 12(b)(1) Motion:

Plaintiff, as a union member and employee of Defendant, was subject to “a comprehensive

system addressing employee conduct, rules, policies, [] violations, and employee discipline and

terminations.” Br. in Supp. 6, ECF No. 21. “All such aspects of [Plaintiff’s] employment, and the

employment of other [Union Railroad] union employees, are addressed by, or inextricably

intertwined with, a collective bargaining agreement and, inter alia, a complimentary demerits

policy.” Id. (emphasis omitted). Defendant avers that:

As a railroad employee, [Plaintiff’s] termination and related individual railroad

employee disciplinary matters are subject to the [RLA], which, by its terms,

precludes federal courts from exercising jurisdiction over these claims. The RLA

provides for the statutory establishment of the National Railroad Adjustment Board

(“NRAB”) for purposes of “judicial review,” 45 U.S.C. § 153, with arbitration to

serve as the mechanism for the above-quoted, “orderly settlement of all disputes . .

. .” 45 U.S.C. §§ 151a, 157. This extends to “disputes concerning . . . rules[] or

working conditions.” 45 U.S.C. § 151.

Br. in Supp. 1-2, ECF No. 21 (emphasis omitted).

Plaintiff’s “URR Record of Discipline,”1 which reflects Plaintiff’s demerits and other

discipline during his time as an employee of Defendant, indicates that 60 demerits were imposed

against Plaintiff on August 1, 2019 for the July 4, 2019 failed alcohol test, pursuant to “URR

General Rules 1.8, 1.8.1, 1.7, and 1.7.1”; and that 60 more demerits were imposed against Plaintiff

on August 1, 2019 for insubordination and hostility with his supervisors during the July 4, 2019

incident, pursuant to “URR General Rule 1.2.” Br. in Supp. 6-7, ECF No. 21. The Record of

1 Attached as Exhibit 3 to Defendant’s Motion.

Discipline further indicates that these two incidents resulted in the termination of Plaintiff’s

employment on August 1, 2019. Id.

Defendant also sent correspondence to Plaintiff dated August 1, 2019 and August 2, 2019

(Exhibits 4 and 5 of Defendant’s Motion) indicating that Plaintiff’s employment with Defendant

had been terminated as a result of 60 demerits each (for a total of 120 demerits) being imposed

upon Plaintiff as a result of investigations confirming his failed alcohol test and subsequent

insubordination on July 4, 2019. Br. in Supp. 6-7, ECF No. 21. The first letter indicates that, after

imposition of the first 60 demerits for the failed alcohol test, Plaintiff had a total of 135 demerits,

and that this total resulted in the termination of Plaintiff’s employment under the Union Railroad

Demerit Policy. Id. at 7.2 The second letter indicates that, after imposition of the second 60

demerits for insubordination, Plaintiff had a total of 195 demerits, and that this total and the

egregious nature of the incident resulted in the termination of Plaintiff’s employment under the

Union Railroad Demerit Policy. Id. Defendant asserts that:

Pursuant to the RLA and the collective bargaining agreement and its import—

which make arbitration proceedings before the NRAB the exclusive forum

addressing [Plaintiff’s] demerits, discipline, and termination—[Plaintiff] and his

union representation initiated NRAB arbitration of [Plaintiff’s] termination and

discipline. [Plaintiff] subsequently withdrew his arbitration claims immediately

prior to a July 2021 hearing, presumably in light of his June 2021 filing of this

federal lawsuit.

Id.

II. Procedural History

Plaintiff filed his Amended Complaint on September 24, 2021. Defendant filed its Motion

to Dismiss, along with a Brief in Support (ECF No. 21), on October 15, 2021. Plaintiff filed a

2 Defendant avers that, “[u]nder the URR Demerit Policy, exceeding 100 demerits presumptively results in termination

of employment.” Br. in Supp. 7 n.5, ECF No. 21 (citing Mot. Ex. 2, ECF No. 20-4).

Brief in Opposition (ECF No. 26) on November 19, 2021, and Defendant filed a Reply (ECF No.

30) on December 1, 2021.

III. Legal Standards

A. Fed. R. Civ. P. 12(b)(1)

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the

“court’s ‘very power to hear the case.’” Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir.

2006) (quoting Mortensen v. First Federal Savings and Loan Ass’n, 549 F.2d 884, 891 (3d Cir.

1977)). The party asserting the existence of federal jurisdiction bears the burden of proving that

jurisdiction over the subject matter actually exists. Brown v. Tucci, C.A. No. 12-1769, 2013 WL

2190145 (W.D. Pa. May 20, 2013) (citing Development Finance Corp. v. Alpha Housing & Health

Care, 54 F.3d 156, 158 (3d Cir. 1995)).

There are two types of Rule 12(b)(1) motions. A “facial” attack assumes that the

allegations of the complaint are true, but contends that the pleadings fail to present an action within

the court’s jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.

1977). The United States Court of Appeals for the Third Circuit has explained:

In reviewing a facial attack, “the court must only consider the allegations of the

complaint and documents referenced therein and attached thereto, in the light most

favorable to the plaintiff.” In re Schering Plough Corp., 678 F.3d at 243 (quoting

Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000)) (internal

quotation marks omitted). Thus, a facial attack calls for a district court to apply the

same standard of review it would use in considering a motion to dismiss under Rule

12(b)(6), i.e., construing the alleged facts in favor of the nonmoving party.

Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014).

A “factual” attack, on the other hand, argues that, while the pleadings themselves facially

establish jurisdiction, one or more of the factual allegations is untrue, causing the case to fall

outside the court’s jurisdiction. Mortensen, 549 F.2d at 891. In such a case, “no presumptive

truthfulness attaches to plaintiff’s allegations” and the court must evaluate the merits of the

disputed allegations because “the trial court’s ... very power to hear the case” is at issue. Id. With

a factual attack, the Court is free to consider evidence outside the pleadings and weigh that

evidence. Petruska, 462 F.3d at 302 n.3; see also Gould Elecs., Inc. v. U.S., 220 F.3d 169, 176

(3d Cir. 2000). “[T]he existence of disputed material facts will not preclude the trial court from

evaluating for itself the merits of jurisdictional claims.” Petruska, 462 F.3d at 302 n.3 (quoting

Mortenson, 549 F.2d at 891). Such inquiry is permissible because a federal court must assure itself

that it has jurisdiction over the case, and it may even resolve factual disputes in doing so. See

Boyle v. The Governor’s Veterans Outreach & Assistance Ctr., 925 F.2d 71, 74 (3d Cir. 1991)

(citing Mortensen, 549 F.2d at 891).

B. Fed. R. Civ. P. 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In

deciding a motion to dismiss, the court is not opining on whether the plaintiff will likely prevail

on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled

factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S.

Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need

detailed factual allegations to survive a Rule 12(b)(6) motion to dismiss, a complaint must provide

more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A

“formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007)). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). The Supreme Court of the United States has explained:

The plausibility standard is not akin to a “probability requirement,” but it asks for

more than a sheer possibility that a defendant has acted unlawfully. Where a

complaint pleads facts that are “merely consistent with” a defendant’s liability, it

“stops short of the line between possibility and plausibility of ‘entitlement to

relief.’”

Id. (quoting Twombly, 550 U.S. at 556) (internal citations omitted).

The United States Court of Appeals for the Third Circuit instructs that “a court reviewing

the sufficiency of a complaint must take three steps.” Connelly v. Lane Constr. Corp., 809 F.3d

780, 787 (3d Cir. 2016). The court explained:

First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.”

Iqbal, 556 U.S. at 675. Second, it should identify allegations that, “because they

are no more than conclusions, are not entitled to the assumption of truth.” Id. at

679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011)

(“Mere restatements of the elements of a claim are not entitled to the assumption of

truth.” (citation and editorial marks omitted)). Finally, “[w]hen there are well-

pleaded factual allegations, [the] court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556

U.S. at 679.

Connelly, 809 F.3d at 787. “Determining whether a complaint states a plausible claim for relief

will . . . be a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 679 (internal citations omitted).

In addition to reviewing the facts contained in the complaint, a court may consider “matters

of public record, orders, exhibits attached to the complaint and items appearing in the record of

the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994).

When a document integral to or relied upon in the complaint is included, the court may also

consider that document. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.

1997).

Although a district court is not obligated to permit leave to amend before dismissing a

complaint in a non-civil rights case, Wolfington v. Reconstructive Orthopaedic Assocs. II P.C.,

935 F.3d 187, 210 (3d Cir. 2019), courts generally grant leave to amend unless amendment of the

complaint would be inequitable or futile. See, e.g., Bachtell v. Gen. Mills, Inc., 422 F. Supp. 3d

900, 915 (M.D. Pa. Oct. 1, 2019) (citing Phillips v. Allegheny Cty., 515 F.3d 224, 245 (3d Cir.

2008)). “If a plaintiff requests leave to amend a complaint vulnerable to dismissal before a

responsive pleading is filed” in a civil rights case, a court must permit amendment unless it would

be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); see

also Grayson, 293 F.3d at 108 (“When a plaintiff does not seek leave to amend a deficient

complaint after a defendant moves to dismiss it, the court must inform the plaintiff that he has

leave to amend within a set period of time, unless amendment would be inequitable or futile.”).

IV. Discussion

A. Subject Matter Jurisdiction

Defendant asserts that this Court lacks subject matter jurisdiction because the Railway

Labor Act precludes and forecloses Plaintiff’s ADEA and PHRA claims. Defendant asserts that

mandatory arbitration before the NRAB is the exclusive forum for Plaintiff’s claims. Br. in Supp.

8, ECF No. 21. As noted by Plaintiff and acknowledged by Defendant, this Court has recently

rejected a similar, and in some respects, identical, argument that was raised in the matter of Marsh

v. Union R.R. Co., LLC., et. al., No. 2:20-cv-01145. In Marsh, the Court explained as follows:

First, the Non-Labor Defendants argue that the RLA preempts and

precludes3 all claims against them and thus, we lack subject matter jurisdiction.

3 In Norris, the Supreme Court noted that state-law claims that require interpretation of a CBA would be “pre-empted,”

while claims based on federal law would be “precluded,” and stated that the principles governing both concepts are

They argue that pursuant to the Railway Labor Act, mandatory arbitration before

the Railway Labor Board is the exclusive forum for Marsh’s claims and,

accordingly, federal and state courts lack jurisdiction over such claims. 45 U.S.C.

§ 151, et seq. We will deny the motion to dismiss in this regard.

In addition to the CBA (attached to motion as Exhibit 1, ECF No. 31-3),

the Non-Union Defendants rely on the Railroad demerit policy (attached to motion

as Exhibit 2, ECF No. 31-4). The demerit policy provides, inter alia, that for

insubordination (first offense) a worker is subject to dismissal (ECF No. 31-4).

Under the CBA, Marsh was provided an opportunity to have a formal investigation

and to proceed to a grievance under the CBA. The Union Railroad Demerit Policy

states it is “intended to provide a uniform structure to address rule and policy

violations in a consistent and fair manner.” (ECF No. 31-4 at 2). It provides:

The Policy shall not serve to amend, replace or modify the

terms of any existing Collective Bargaining Agreement and

employees shall retain all rights currently afforded them under such

agreements.

In Int’l Ass’n of Machinists & Aerospace Workers Dist. Loc. Lodge 1776 v.

Jackson, No. CIV.A. 09-150, 2010 WL 597247, at *3 (E.D. Pa. Feb. 19, 2010) the

court explained when the RLA preempts and precludes claims, noting that the one

relevant scenario arises where there is a “minor dispute”:

“A minor dispute is a dispute over the interpretation or application

of existing collective bargaining agreements.” United Transp.

Union v. Conemaugh & Black Lick R.R. Co., 894 F.2d 623, 628 (3d

Cir.1990). A claim is a minor dispute if it, “implicate[s] practices,

procedures, implied authority, or codes of conduct that are part of

the working relationship.” Fry v. Airline Pilots Ass’n., Intern., 88

F.3d 831, 836 (10th Cir.1996).

Importantly, and for purposes of the motion before this Court, minor

disputes must be kept out of the courts and under the exclusive

jurisdiction of an arbitration board. See Independent Ass'n. of

Continental Pilots, 155 F.3d at 691 (citing Union Pacific R.R. Co.

v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978)).

When a claim is “inextricably intertwined” or “substantially

dependent upon analysis of the terms of an agreement made between

the parties in a labor contract,” the claim is preempted. Wall v.

Americold Corp., 1997 WL 431006, at *2 (E.D. Pa. July 15, 1997)

the same. 512 U.S. at 259, n.6. Federal courts have used the terms “preclusion” and “preemption” interchangeably

and likewise equated the two concepts. Preclusion and preemption are based on the same idea -- that federal labor

law should control the issues in a case that requires interpreting a CBA -- but the former affects federal statutes while

the latter affects state statutes. See Sturge v. Northwest Airlines, Inc., 658 F.3d 832, 2011 WL 4634223, *8 (8th Cir.

Oct. 7, 2011); Brown v. Ill. Cent. R.R., 254 F.3d 654, 664 (7th Cir. 2001), cert. denied, 534 U.S. 1041 (2001)

(citing Allis–Chalmers Corp. v. Lueck, 471 U.S. 202, 213 & 220,

105 S.Ct. 1904, 85 L.Ed.2d 206 (1985)).

2010 WL 597247 at *3; see also Int’l Ass’n of Machinists and Aerospace Workers

Dist. Local Lodge 1776 v. Jackson, No. 09-150, 2010 WL 597247 at *3 (E.D. Pa.

Feb. 19, 2010). Claims must be dismissed if they require “an examination into, and

interpretation of, the terms of the [CBA] between [a plaintiff’s] Union and the

[employer].” Malobabich v. Norfolk S. Corp., No. 2:11-CV-112, 2011 WL

1791306, at *2 (W.D. Pa. May 10, 2011) (quoting Blackwell v. Am. Airlines, Inc.,

No. 98 C 6856, 2003 WL 22159412, at *2 (N.D. Ill. Sept. 17, 2003)).

Plaintiff here claims that the Defendants’ actions had discriminatory or

retaliatory motives; Non-Labor Defendants argue his claims were inextricably

intertwined with, and substantially dependent upon analysis of the CBA, and

therefore, this court lacks subject matter jurisdiction. The central case relied upon

by the Non-Labor Defendants is Malobabich. In that case, Plaintiff’s complaint

alleged violations of the ADEA, a parallel age discrimination claim under the

Pennsylvania Human Relations Act, and the tort of intentional infliction of

emotional distress. Defendant employer filed a motion to dismiss, which the court

granted on the grounds of lack of subject matter jurisdiction:

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 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.”

Id., 2011 WL 1791306, at *1. The court, adopting a broader preemption/preclusion

rule, found it lacked jurisdiction, noting:

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.

Id., 2011 WL 1791306, at *3 (citing Brown v. Illinois Central R.R., 254 F.3d 654

(7th Cir. 2001) (emphasis added).

Yet the allegations in Malobabich differ from those in the Amended

Complaint. Here, Marsh takes issue with the demerits that were assessed and

maintained against him under the CBA and the Railroad’s disciplinary rules and

policies, as well as his termination, but his central claim is this was part of a

pretextual scheme to terminate Railroad employees over age 40 on the basis of their

age in violation of the ADEA. The motives of the Railroad are challenged. Given

the nature of his claims herein, we will deny the motion to dismiss on the grounds

of preemption.

Other courts have so held. Recently, in Andre Fields, et al. v. American

Airlines, Inc., et al., No. CV 19-903-KSM, 2021 WL 4306021, at *21 (E.D. Pa.

Sept. 22, 2021), the court rejected the argument that the [p]laintiffs’ disparate

treatment and retaliation claims (racial discrimination) were minor disputes under

the RLA:

“[T]he [United States Supreme] Court has consistently held

that the RLA minor dispute resolution machinery does not displace

separate federal statutory rights granted to individual workers.”

Blakely v. U.S. Airways, Inc., 23 F. Supp. 2d 560, 568 (E.D. Pa.

1998) (discussing Supreme Court cases and holding that the RLA

did not strip the court of jurisdiction to consider union members’

ADA claims); id. at 574 (“The overwhelming majority of the courts

of appeal have determined that employees covered by CBAs

containing mandatory arbitration clauses retain the right to pursue

statutory employment discrimination claims in federal court

regardless of whether the employee has exhausted his or her

contractual remedy.”)

Although Plaintiff has alleged a discriminatory scheme amongst defendants, which

the court finds are conclusory and lacking in sufficient particularity, the overall

harm complained of pertains to his wrongful termination and involves rights or

obligations that exist independently of the CBA.

Accordingly, the motion to dismiss the ADEA claim on the grounds of

preclusion by the RLA pursuant to Federal Rule of Civil Procedure 12 (b)(1) will

be denied.

Marsh v. Union R.R. Co., LLC., No. 2:20-cv-01145-RJC, 2021 WL 4459764, at *10-12 (W.D. Pa.

Sept. 29, 2021).

Similar to the Marsh action, Plaintiff in this action takes issue with the demerits that were

imposed upon him and the manner in which the alcohol test and subsequent disciplinary process

played out, including his termination, but his central claim is that the same was a pretextual scheme

to terminate Plaintiff on the basis of his age in violation of the ADEA. Plaintiff has alleged that

Defendant had a discriminatory motive in applying its policies in a less favorable manner to

Plaintiff as compared to younger employees. See Markovich v. Union R.R. Co., LLC, No. 2:21-

cv-1596, 2022 WL 3334278, at *5 (W.D. Pa. June 8, 2022), report and recommendation adopted

in part, rejected in part, No. 2:21-cv-1596, 2022 WL 2980548 (W.D. Pa. July 28, 2022). As in

Marsh, the motives of the Defendant are at issue in this case. As a defendant in the Marsh action,

Union Railroad is familiar with the Court’s analysis and holding in that case on the issue of RLA

preclusion. While the Court recognizes that Defendant may disagree with the Court’s holding in

Marsh, the Court finds that, at least with respect to the issue of preclusion, Defendant’s argument

can be rejected on the same basis relied upon by the Court in Marsh, especially where Defendant

does not attempt to distinguish the Marsh preclusion holding from the instant matter in any

manner. The Court will deny the Motion to Dismiss to the extent it asserts that this case should

be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) on the basis of a lack of subject matter

jurisdiction.

B. Failure to State a Claim

Defendant also seeks dismissal of Plaintiff’s claims on the basis that Plaintiff has failed to

allege facts sufficient to state a claim under the ADEA or PHRA that is plausible on its face. The

Court agrees with this assertion.

The ADEA prohibits employers from “discharg[ing] any individual or otherwise

discriminat[ing] against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). To succeed

on an ADEA claim, a plaintiff must establish, by a preponderance of the evidence, that age was

the “but-for” cause of the adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S.

167, 177–78 (2009). Age discrimination claims in which the plaintiff relies on circumstantial

evidence proceed according to the three-part burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973); Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108

(3d Cir. 1997) (reaffirming the application of a “slightly modified version of [McDonnell Douglas]

in ADEA cases”). Under the McDonnell Douglas framework:

a plaintiff must first establish a prima facie case of discrimination. If the plaintiff

succeeds, the defendant must articulate a legitimate, non-discriminatory reason for

the adverse employment action. The burden then shifts back to the plaintiff to

prove, by a preponderance of the evidence, that the articulated reason was a mere

pretext for discrimination.

Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir. 2014) (internal citations omitted).

Under this framework, the plaintiff must first establish a prima facie case of discrimination.

Keller, 130 F.3d at 1108 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742,

125 L.Ed.2d 407 (1993)). Satisfying the prima facie elements creates an “inference of unlawful

discrimination.” Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999) (quoting

Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (3d Cir.1995)). The elements of a prima facie case

of age discrimination are that: (1) the plaintiff is at least forty years old; (2) the plaintiff suffered

an adverse employment decision; (3) the plaintiff was qualified for the position in question; and

(4) the plaintiff was ultimately replaced by another employee who was sufficiently younger so as

to support an inference of a discriminatory motive.4 Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d

Cir. 2013). The Third Circuit has explained

If the plaintiff offers sufficient proof of these elements, step two is reached. The

burden of production (but not the burden of persuasion) shifts to the defendant, who

must then offer evidence that is sufficient, if believed, to support a finding that it

had a legitimate, nondiscriminatory reason for the discharge. Hicks, 509 U.S. at

506–07, 113 S.Ct. at 2746–47. If the defendant cannot satisfy this burden,

4 With respect to the fourth element, the Third Circuit has explained:

We have sometimes phrased the fourth element as requiring the plaintiff to show that she “was

ultimately replaced by another employee who was sufficiently younger so as to support an inference

of a discriminatory motive.” Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644

(3d Cir. 2015). The Willis formulation can be traced back to a case in which we held that “an ADEA

plaintiff may establish the fourth element of the McDonnell Douglas test for a prima facie case by

showing that s/he was replaced by a person sufficiently younger to permit an inference of age

discrimination.” Maxfield v. Sinclair Int’l, 766 F.2d 788, 793 (3d Cir. 1985). This is just one way

to establish the fourth element. A plaintiff may also establish the fourth element with proof that,

during a reduction in force, younger employees were retained when plaintiff was fired, Showalter

v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231, 234-36 (3d Cir. 1999), or with other facts sufficient

“to create an inference that an employment decision was based on” age, [O’Connor v. Consol. Coin

Caterers Corp., 517 U.S. 308, 312 (1996)].

Dodson v. Coatesville Hosp. Corp., 773 F. App’x 78, 80 n.3 (3d Cir. 2019). The Dodson Court described the fourth

element as follows: “the adverse action occurred under circumstances that create an inference that plaintiff’s age was

a motivating factor.” Id. at 80.

judgment must be entered for the plaintiff. Id. at 509, 113 S.Ct. at 2748. On the

other hand, if the defendant does satisfy this burden, step three is reached. The

plaintiff may then survive summary judgment or judgment as a matter of law by

submitting evidence

from which a factfinder could reasonably either (1) disbelieve the

employer’s articulated legitimate reasons; or (2) believe that an

invidious discriminatory reason was more likely than not a

motivating or determinative cause of the employer’s action.

Keller, 130 F.3d at 1108 (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994)).

It is important to note, and as succinctly and deftly explained by the Honorable Patricia L.

Dodge:

Further, the Third Circuit has stated that, in order to defeat a motion to dismiss, it

is sufficient, but not necessary, to allege a prima facie case of discrimination.

Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021). “The

complaint need only allege enough facts to ‘raise a reasonable expectation that

discovery will reveal evidence of [each] necessary element.’” Id. (citation

omitted). See also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)

(establishing a prima facie case is an “evidentiary standard, not a pleading

requirement.”); Connelly v. Lane Const. Corp., 809 F.3d 780, 791 (3d Cir. 2016)

(plaintiff’s allegations that she was the only female truck driver and was qualified

but only six male truck drivers were recalled was sufficient to withstand a motion

to dismiss, noting that she was not required “to establish a prima facie case, much

less to engage in the sort of burden-shifting rebuttal that McDonnell Douglas

requires at a later stage in the proceedings.”)

Markovich, 2022 WL 3334278, at *6. However, the Court will use the elements of a prima facie

claim for ADEA discrimination as a guideline in evaluating the claim at this stage. See Dreibelbis

v. County of Berks, 2020 WL 605884 at *7 (E.D. Pa. Feb. 7, 2020).

To succeed on a disparate treatment claim, a plaintiff must demonstrate that “the

employee’s protected trait actually played a role” and “had a determinative influence on the

outcome” of the decision-making process that led to the challenged action. Hazen Paper v.

Biggins, 507 U.S. 604, 610 (1993); see also 29 U.S.C. § 623(a) (“It shall be unlawful for an

employer . . . [to] discriminate against any individual . . . because of such individual’s age . . . .”

(emphasis added)). In other words, age must have been a “but-for” cause of the action, and the

plaintiff bears the burden of proving so. Gross, 557 U.S. at 177, 180. Accordingly, “there is no

disparate treatment under the ADEA when the factor motivating the employer is some feature

other than the employee’s age.” Hazen Paper, 507 U.S. at 609.

In support of his ADEA claim, Plaintiff asserts that Plaintiff was subjected to disparate

treatment because younger employees suspected of alcohol consumption were not tested for

alcohol prior to beginning their shifts, as Plaintiff was in this case. In so asserting, Plaintiff alleges

that an alcohol test was performed earlier than would normally be the case, and that this test

ultimately resulted in the termination of Plaintiff’s employment. Even viewing the allegations in

the Complaint in a light most favorable to Plaintiff, the Court finds that Plaintiff fails to set forth

allegations sufficient to support any inference that the manner in which the alcohol test was applied

resulted in Plaintiff’s termination, or that his age played any role in either the application of an

early test or his termination for failing the test.5

To be sure, Plaintiff alleges that he could fulfill his job duties and that he failed the test as

a result of the detection of a minimal amount of alcohol in his system, but this does not permit a

logical inference that Plaintiff would have passed the alcohol test had he been permitted to first

begin his shift. Plaintiff does not allege that employees were permitted to have alcohol in their

system while working for Defendant. Nor does he allege that Defendant cannot require an

employee to undergo an alcohol test if Defendant suspects that the employee is intoxicated.

5 The Court ignores, at this stage, the logical danger that might result should an employer, and particularly a railroad,

be required to wait, in all instances, for an employee who the employer believes has consumed alcohol to begin

performing the employee’s duties before requiring the employee to undergo an alcohol test, especially where Plaintiff

himself alleges that Defendant’s management was aware that Plaintiff had previously struggled with alcohol use, and,

given Plaintiff’s notice that he would be late on July 4, 2019, was further aware that there was a likelihood that

Plaintiff would fail an alcohol test if sent for such a test immediately upon arriving at work on July 4, Compl. ¶ 25,

ECF No. 19. Plaintiff has alleged that Defendant maintained such a policy, and the Court must accept that allegation

as true.

Plaintiff fails to allege any fact to support an inference that the timing of the test, which Plaintiff

avers resulted in his termination due to discriminatory application, had anything to do with the

termination of his employment with Defendant.6 As alleged, Plaintiff has averred that Defendant

suspected that Plaintiff had been drinking, that Defendant subjected him to an alcohol test, and

that Plaintiff, in fact, failed the test. The Court finds that Plaintiff fails to provide the Court with

sufficiently specific allegations that would support an inference that age had anything to do with

the application of the test, a departure from normal procedures, or Plaintiff’s termination. Plaintiff

further fails to allege that Plaintiff would have avoided or otherwise not failed the alcohol test in

the absence of a departure from typical procedures. With respect to the application of an alcohol

test before Plaintiff began his shift, the Court finds that Plaintiff has not alleged any non-

conclusory facts sufficient to raise a reasonable expectation that discovery will reveal evidence

that Plaintiff’s age motivated Defendant’s decision to terminate him. Rather, the facts, as pled,

indicate that Plaintiff’s consumption of alcohol on the day in question, and Defendant’s suspicion

of alcohol consumption based upon its knowledge of Plaintiff’s history, resulted in his termination.

Plaintiff also alleges that Defendant maintained a procedure that permitted an employee,

including those under the age of 40, who had failed an alcohol test to take a 30-day leave from

work to attend an alcohol treatment program and, following completion of the program, to return

to work, Compl. ¶ 27, ECF No. 19, and that Plaintiff was not given an opportunity to complete

such treatment and return to work following the July 4, 2019 failed test, id. at ¶ 28. He asserts that

Defendant’s failure to offer Plaintiff the opportunity to attend treatment was a part of Defendant’s

scheme to terminate the Plaintiff based upon his age, and avers that he was treated differently than

6 It also bears noting that Plaintiff has alleged that he arrived late for his shift on the day in question. Compl. ¶ 20,

ECF No. 19.

younger employees in that younger employees who tested positive for drugs or alcohol were given

the opportunity to attend treatment and then return to work. Id. at ¶¶ 29-30.

While perhaps a closer call than Plaintiff’s other allegations, the Court finds that Plaintiff’s

assertions as to Defendant’s immediate termination of Plaintiff’s employment and failure to allow

Plaintiff to attend treatment come up short of stating a plausible claim at this juncture. While

Plaintiff avers in conclusory fashion that younger employees were permitted to utilize this alcohol

treatment procedure, Plaintiff provides very little outside of speculative averments of disparate

treatment and fails to provide any specific facts about the alcohol treatment procedure itself. For

example, Plaintiff does not set forth any allegations as to whether the procedure was part of a

formal written policy, whether the procedure was mandatory7 or discretionary, and/or the

regularity with which the procedure was applied. For these reasons, the Court finds that Plaintiff’s

allegations respecting Defendant’s failure to provide Plaintiff with an opportunity to attend

treatment are similar to those that this Court has previously found to be speculative and lacking

the requisite particularity under Twombly and Iqbal.

Finally, Plaintiff alleges that Defendant retroactively applied demerits to Plaintiff in

terminating Plaintiff’s employment, and that the same would not have happened to a younger

employee. With respect to this assertion, Plaintiff fails to provide sufficient, non-conclusory

allegations as to the nature of the previous incident, the number demerits eventually imposed, the

manner in which the demerits were imposed, how Plaintiff learned of these additional demerits,

and/or how the imposition of these demerits resulted in his termination. Plaintiff’s allegations

7 If the procedure was maintained as a formal, written, mandatory policy, the Court is hard-pressed to imagine how it

could have jurisdiction over such a claim. The same would require only interpretation of the CBA to determine

whether Defendant complied with its mandatory policy.

regarding the retroactive imposition of demerits are vague and conclusory, and come up short of

stating a claim for age discrimination.

Turning to Plaintiff’s PHRA claim, the Court notes that the elements of a prima facie case

of age discrimination are the same under both the ADEA and the PHRA. Dodson, 773 F. App’x

at 80. The PHRA provides: “[i]t shall be an unlawful discriminatory practice . . . [f]or any

employer because of the . . . age . . . of any individual . . . to otherwise discriminat[e] against such

individual ... with respect to compensation, hire, tenure . . . if the individual . . . is the best able and

most competent to perform the services required.” 43 Pa. Stat. Ann. § 955(a). To prevail on a

claim of intentional discrimination under the ADEA or the PHRA, “a plaintiff must show that his

or her age ‘actually motivated’ or ‘had a determinative influence on’ the employer’s decision to

fire him or her.’” Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002) (quotations omitted).

“The same legal standard applies to both the ADEA and the PHRA and therefore it is proper to

address them collectively.” Kautz v. Met–Pro Corp., 412 F.3d 463, 466 n.1 (3d Cir. 2005).

Because this Court has already found that Plaintiff fails to state an ADEA claim, the Court likewise

finds that he fails to state a claim under the PHRA.

While the Court will dismiss the Complaint pursuant to Rule 12(b)(6) for failure to state a

claim, the Court will, in an abundance of caution, permit Plaintiff to file a second amended

complaint with respect to his ADEA and PHRA claims.

V. Conclusion

For the reasons discussed above, the Court will deny Defendant’s Motion to Dismiss to the

extent that it asserts that this case should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). The

Court will grant the Motion to Dismiss to the extent that it asserts that Plaintiff fails to state a claim

under the ADEA or the PHRA. An appropriate Order of Court follows.

BY THE COURT:

/s/Robert J. Colville______

Robert J. Colville

United States District Judge

DATED: September 14, 2022

cc: All counsel of record