Brown, Robert v. IL Central RR Co

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2349

Robert Brown,

Plaintiff-Appellant,

v.

Illinois Central Railroad Company,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 4836--Charles P. Kocoras, Judge.

Argued January 22, 2001--Decided June 20, 2001

Before Bauer, Kanne, and Evans, Circuit

Judges.

Bauer, Circuit Judge. Robert Brown,

aided by the Equal Employment Opportunity

Commission ("EEOC") as amicus curiae,

appeals the district court’s dismissal of

a claim which he brought under the

Americans with Disabilities Act ("ADA")

42 U.S.C. sec. 12101, et seq. for lack of

subject-matter jurisdiction. The district

court found that Brown’s claim was

precluded by the mandatory arbitration

provisions of the Railway Labor Act

("RLA") 45 U.S.C. sec. 151, et seq. For

the reasons set forth below, we affirm.

BACKGROUND

Illinois Central Railroad Company ("IC")

is a "carrier" by rail under the RLA and

an "employer" under the ADA headquartered

in Chicago, Illinois. IC’s operations are

divided into several departments, which

in turn are subdivided into various

groups of employees, or "crafts." Each

craft has its own separate identity, with

its own collective bargaining agreement

("CBA"), work rules, and seniority. Brown

has worked in IC’s Transportation

Department in the

trainman/brakeman/switchman ("trainman")

craft/1 since 1979. IC’s trainmen are

represented by the United Transportation

Union ("UTU"), which has entered into a

CBA with IC on their behalf.

IC has two types of trainman positions--

regularly scheduled, and "guaranteed

extra board" ("GEB"). GEB trainmen fill

in for absent regular trainmen and allow

the railroad to cope with unexpected

surges in operations (such as the

unscheduled arrival of trains in the

yard) which create a need for extra

workers on short notice. Prior to May of

1995, IC had two types of GEB positions--

"yard" and "road." Trainmen who were

assigned to yard jobs worked in a

prescribed geographical area and had

restricted starting times. Yard GEBs had

two assigned days off per week, while

road GEBs had no assigned days off. In

May of 1995, IC eliminated the yard GEB

position. Work that had previously been

performed by yard GEBs has since been

performed by road GEBs, like Brown.

Road GEB trainmen at IC are called to

work according to the following

procedure: GEB trainmen are listed on a

"call board," with the trainman who has

been without a job assignment for the

longest period of time at the top,

followed in descending order by each

trainmen who has worked more recently.

When a fill-in worker is needed, an IC

crew dispatcher calls the GEB trainman at

the top of the list and assigns him to

work. While he is working, his name is

taken off of the call board. When the

trainman finishes his assignment, he

"marks back up," meaning that his name is

put back on the call board, this time at

the bottom of the list. As those above

him are called to jobs, their names are

taken off the call board, and the worker

at the bottom moves up the board until he

is again at the top, making him eligible

to be called to work when the need

arises. This cycle repeats itself

continually, constantly changing the

order of the trainmen on the list.

Regularly scheduled (non-GEB) trainmen

have a specific work schedule and

location. They work six days per week on

a regular basis, and have one assigned

day off per week. By contrast, GEB

trainmen do not have assigned days off.

The CBA requires IC to staff the GEB with

a sufficient number of employees so as to

permit both regular and GEB employees to

have "reasonable layoffs," but the CBA

does not define what constitutes a

"reasonable" layoff. Trainmen with the

most seniority at IC fill the regular,

six day per week positions. Since it

abolished all yard jobs in May of 1995,

IC has taken the position that GEB

employees be available for work seven

days per week, 24 hours a day (subject to

the federal hours of service laws). The

CBA guarantees GEB trainmen payment for

each day they are on GEB status and

available to work,/2 regardless of

whether they actually work. However,

Brown disputes whether seven day per

week, 24 hours a day availability is a

requirement of the GEB trainman position.

Brown began working for IC in October of

1978, and transferred to the trainman

craft in May of 1979. Brown was qualified

as a conductor in May 1980, and worked in

that position for approximately eight

years. At some point during his

employment, Brown was diagnosed by his

personal physician as having

schizoaffective disorder. He was first

hospitalized for this condition in 1988,

suffering from depression, paranoia, and

suicidal feelings. Schizoaffective

disorder can interfere with an

individual’s ability to learn new

concepts, and, according to the testimony

of one of Brown’s treating physicians, it

can cause hallucinations, disorganized

thinking, delusions, obsessions, social

withdrawal, and depressive episodes.

In November of 1989, Brown’s personal

physician informed IC that Brown’s

psychiatric condition rendered him unable

to withstand the stress associated with

the supervisory tasks performed by

conductors or foremen, and limited him to

"helper only" jobs, such as brakeman or

switchman. The parties dispute whether IC

immediately accommodated Brown’s

psychiatric condition, however they agree

that since at least April of 1993 IC has

allowed Brown to work only "helper"

trainman’s jobs. This was done while

Brown continued to work off of the call

board. If a conductor job opened up while

Brown was at the top of the list, he

would decline the job and it would be

assigned to the next trainman on the

list. Prior to the reclassification of

yard trainman jobs in May of 1995, Brown

held a GEB yard job which required him to

work various shifts five days per week,

with assigned days off on Mondays and

Tuesdays. IC found Brown medically

qualified to perform this job. Beginning

in June 1995, after assigned rest days

were eliminated for all GEB positions,

Brown generally would lay off sick on a

routine basis two days per week. For

approximately one year, IC made no

objection to this practice. During this

time, Brown’s work was generally

acceptable and he was never disciplined

for poor attendance.

In February of 1996, several months

after all Chicago GEB yard assignments

were eliminated and replaced with road

crews, John Kay became Superintendent of

IC’s Chicago area operations. Starting

the following May, Kay analyzed employee

work records which showed the number of

days that individual employees were

laying off work. After concluding that

several employees were laying off

excessively, Kay met with several

trainmen, including Brown, to discuss

their attendance. Kay insisted that Brown

be available for work seven days a week.

At a meeting on June 11, 1996, Brown gave

Kay a note from his physician restricting

him to working a maximum of five days a

week due to his disorder. IC did not

provide Brown the accommodation he

requested, and it medically disqualified

him from employment on June 13, 1996 on

the ground that he would not be available

to work seven days per week as required

by the GEB trainman position.

Brown remains on IC’s seniority list

and according to IC he is eligible to

return to work if his restrictions are

lifted or GEB requirements change. At the

time of his disqualification, all regular

(6 day per week) trainmen positions were

held by trainmen with higher seniority

than Brown. However, by the time this

case was litigated in the district court,

some of those positions were held by

employees with less seniority than Brown.

At the time of his disqualification,

Brown ranked 216th out of 226 on the

seniority list, meaning that only 10

trainmen had less seniority than Brown.

UTU urged IC to accommodate Brown, and

after IC medically disqualified Brown,

UTU pursued a labor grievance on his

behalf contending that his

disqualification violated the CBA and

that he was entitled to a reasonable

accom-modation under the ADA. The Public

Law Board denied Brown’s CBA claims and

declined to address his ADA claims,

accepting IC’s argument that it lacked

the statutory authority to resolve such

claims.

After filing a discrimination charge

with the EEOC and receiving a Notice of

Right to Sue, Brown filed suit under the

ADA, claiming that he was qualified to

work as a GEB trainman with the

reasonable accommodation of being allowed

to lay off two days per week, and that IC

violated the ADA by disqualifying him

from work. Brown was examined by Dr.

Alexander Obolsky, plaintiff’s expert

witness, who opined that it was not

necessary that Brown always work exactly

five days, followed by two consecutive

days off; rather, Brown could work as few

as three or as many as to six or seven

days in a row (as his condition allowed),

so long as he worked five days out of

every seven on average. IC moved for

summary judgment, arguing that Brown’s

schizoaffective disorder is not a

"disability" under the ADA, that Brown is

not a "qualified individual," and that

the accommodation that Brown proposed was

not "reasonable." The district court

denied the motion, finding that genuine

issues of material fact existed as to

these issues. IC then moved to dismiss,

arguing that because the resolution of

Brown’s claim required the court to

construe various provisions of the CBA,

the RLA precluded Brown from bringing his

claim in court, and therefore the

district court lacked subject-matter

jurisdiction over the claim. Accepting

IC’s arguments, the district court

dismissed Brown’s ADA claim, and Brown

has appealed.

DISCUSSION

The sole issue presented for review is

whether the mandatory arbitration

provisions of the RLA preclude Brown from

bringing his ADA claim in federal court,

thereby stripping the district court of

subject-matter jurisdiction. The district

court answered this question in the

affirmative and granted IC’s motion to

dismiss for lack of subject-matter

jurisdiction. We review the district

court’s decision on this issue de novo.

See Monroe v. Missouri Pacific R.R. Co.,

115 F.3d 514, 516 (7th Cir. 1997)

(citation omitted).

The RLA promotes stability in labor-

management relations by "providing a

comprehensive framework for resolving

labor disputes" in the railroad industry.

Hawaiian Airlines, Inc. v. Norris, 512

U.S. 246, 252 (1994) (citing Atchison,

Topeka & Santa Fe Ry. Co. v. Buell, 480

U.S. 557, 562 (1987)); see also 45 U.S.C.

sec. 151a. Specifically, the RLA

establishes a mandatory arbitral

mechanism for "the prompt and orderly

settlement" of two classes of disputes--

"major disputes" and "minor disputes."

See 45 U.S.C. sec. 151a. Major disputes

"relate to the formation of collective

bargaining agreements or efforts to

secure them." Hawaiian Airlines, 512 U.S.

at 252 (citation and internal quotation

omitted). Minor disputes, by contrast,

"gro[w] out of grievances or out of the

interpretation or application of

agreements covering rates of pay, rules,

or working conditions[,]" 45 U.S.C. sec.

151a, and "involve controversies over the

meaning of an existing collective

bargaining agreement in a particular fact

situation." Hawaiian Airlines, 512 U.S.

at 253 (citation omitted). All minor

disputes "must be adjudicated under RLA

mechanisms, which include an employer’s

internal dispute-resolution procedures

and an adjustment board established by

the unions and the employer." Monroe, 115

F.3d at 516; 45 U.S.C. sec. 184. A

plaintiff’s claim is properly

characterized as a minor dispute (and is

therefore subject to mandatory and

exclusive arbitration under the RLA) when

the resolution of the plaintiff’s claim

requires interpretation of the CBA. See

Monroe, 115 F.3d at 519; Coker v. Trans

World Airlines, Inc., 165 F.3d 579, 583

(7th Cir. 1999) (stating that "[t]he

distinguishing feature of a minor dispute

is that the dispute can be conclusively

resolved by interpreting the existing

CBA." (citation and internal quotation

omitted)). Therefore, even if Brown’s

claim is grounded upon rights which stem

from some source other than the CBA (such

as state law), the claim will be

preempted if it cannot be adjudicated

without interpreting the CBA, or if it

can be "conclusively resolved" by

interpreting the CBA. See Hawaiian

Airlines, 512 U.S. at 261-62;

Consolidated Rail Corp v. Ry. Labor

Executives’ Ass’n, 491 U.S. 299, 305

(1989).

The ADA prohibits employment

discrimination against "qualified

individual[s] with disabilit[ies]." 42

U.S.C. sec. 12112(a). Under the ADA,

prohibited discrimination includes "not

making reasonable accommodations to the

known physical or mental limitations of

an otherwise qualified individual with a

disability . . . ." 42 U.S.C. sec.

12112(b) (5)(A). All covered entities

must provide a reasonable accommodation

to qualified individuals with disability

unless they can demonstrate that such

accommodation would impose an "undue

hardship" on the operation of their

business. See id. The ADA is a

comprehensive statute designed to end

disability discrimination in the

workplace in all industries, and it does

not exempt the railroad and airline

industries from its reach.

IC argues, and the district court

agreed, that the resolution of Brown’s

ADA claim requires interpretation

ofvarious provisions of the CBA. First,

IC notes that in attempting to establish

that he is a "qualified individual with a

disability," Brown will have to

demonstrate that he is able to perform

the "essential functions" of the job at

issue, with or without a reasonable

accommodation. Since Brown concedes that

his schizoaffective disorder renders him

unable to work seven days a week on a

consistent basis (and does not argue that

a reasonable accommodation would remove

this impairment), in order to prevail on

his claim he will need to show that being

consistently available for work seven

days a week is not an "essential

function" of the GEB trainman position.

However, IC contends that the CBA

forecloses Brown from making any such

showing because it guarantees GEB

Trainman payment for seven days per week

regardless of the number of days that

they actually work, implicitly requiring

seven day per week availability as a quid

pro quo for this salary guarantee./3

Brown challenges this interpretation of

the CBA, and argues that no CBA provision

explicitly establishes seven day per week

availability as a requirement of the GEB

trainman position./4 IC argues that the

conflict between the parties on this

issue turns on a dispute regarding the

interpretation of the CBA, and as such it

must be arbitrated pursuant to the RLA.

Moreover, IC argues that the district

court could not have determined whether

Brown’s requested accommodation was

"reasonable" without interpreting other

disputed provisions of the CBA. For

example, Section 5, Article 3 of the

Trainmens’ schedule agreement lists

various circumstances under which GEB

trainmen should be allowed to lay off

from work and provides that "for good

reason . . . an employee should be

permitted to be absent from work within

reasonable limits." It also notes that,

while "the company is warranted in

controlling the privilege of laying off,"

"it should do so reasonably." This

invites the question of whether the CBA

right to "reasonable layoffs" encompasses

the right to layoff periodically (and

regularly) as needed, even if that means

laying off for up to two days per week.

IC contends that the district court could

not determine whether Brown’s requested

accommodation was "reasonable" (an

essential element of his ADA claim)

without answering this question.

Further, IC points to Section 2, Article

55 of the Trainmens’ Schedule Agreement

("Article 55"), which provides:

[w]hen established runs are changed by

advancing or retarding the earliest

listing time one hour or more, or a

change is made in the number of days the

run is bulletined to operate each week, .

. . it will be considered a new run and

bulletined accordingly.

Applying this provision, IC argues that

granting Brown the accommodation he seeks

would amount to creating a new position

(namely, a GEB position requiring less

than 7 days of availability per week)

which IC would be obligated to place up

for bidding among the other trainmen. IC

maintains that allowing Brown the right

to the regular layoffs he requests

without first offering this privilege to

trainmen with greater seniority would

flout both Article 55 and the general

seniority provisions established under

the CBA. Such an accommodation would be

unreasonable as a matter of law, because

"the ADA does not require disabled

individuals to be accommodated by

sacrificing the collectively bargained,

bona fide seniority rights of other

employees." See Eckles v. Consolidated

Rail Corp., 94 F.3d 1041, 1051 (7th Cir.

1996). Therefore, IC argues that the

merits of Brown’s ADA claim depend upon

an interpretation of the CBA (i.e., that

an interpretation of the CBA will

"conclusively resolve" the claim), and

consequently, that the claim is a "minor

dispute" which is preempted/precluded by

the RLA. The district court accepted

these arguments.

Brown counters that there is nothing in

the CBA that requires seven day per week

availability, so there is no need to

interpret the CBA when determining the

"essential functions" of the GEB trainman

position for ADA purposes. He also denies

that granting him the accommodation he

seeks would create a new position and

violate the CBA by infringing on the

seniority rights of other workers./5 In

support of this, Brown notes that the

Guaranteed Extra Board operates in a

"singularly non-seniority manner";

workers are called off the call board for

work in the order that their names appear

on board, which in turn is determined

strictly by when each worker "marked back

up." Consequently, the order of the

trainmen on the call board changes

constantly without regard to the CBA’s

seniority provisions. Therefore, Brown

contends that if he were permitted to lay

off in the manner he requests, he would

not receive rights or privileges denied

to other GEB trainmen, thereby creating a

new position and implicating the CBA’s

seniority provisions. Rather, he would

merely delay his own opportunity to work

off of the call board, and would open up

a job for the next trainman on the board.

Brown asserts that causing a fellow

worker to jump ahead one space on the

call board and to perform work that he

was already slated to perform a bit

earlier than he had planned does not in

any way change the operation of the call

board or infringe on the seniority rights

of other trainmen. In addition, Brown

claims that the fact that he actually

used this requested method of

accommodation for a year before his

disability-based disqualification and

received no complaints from either the

union, the railroad, or other workers

proves that it did not violate the CBA’s

seniority provisions.

While we do not accept all of IC’s

arguments, we agree that the resolution

of Brown’s ADA claim depends in one

crucial respect upon interpretation of

the CBA. The CBA expressly states that

"when a change is made in the number of

days the run is bulletined to operate

each week, it will be considered a new

run and bulletined accordingly."

Therefore, it seems quite possible that

the accommodation that Brown seeks would

create a new position that is subject to

bidding under the CBA. Therefore,

allowing Brown to lay off in the manner

that he requests without first offering

the same layoff privileges to more senior

trainmen might very well violate the

seniority system established by the CBA.

This seems particularly likely given that

Brown requests regular layoffs of up to

two days per week, and the regular (non-

GEB) trainman position (which at the time

of Brown’s disqualification was held

exclusively by trainmen with greater

seniority than Brown) has only one

assigned day off per week. Moreover, and

most important for our purposes, the

determination of whether or not Brown’s

requested accommodation would violate the

seniority provisions of the CBA will

potentially be dispositive of Brown’s ADA

claim, because requested accommodations

which would interfere with the bona fide

seniority rights of other employees are

unreasonable as a matter of law, and not

mandated by the ADA./6 See Eckles, 94

F.3d at 1051. Therefore, the adjudication

of Brown’s ADA claim cannot go forward

until Article 55 and the seniority

provisions of the CBA are interpreted,

and the court’s interpretation of those

provisions could conclusively resolve

Brown’s claim, making it a "minor

dispute" under the RLA. The fact that GEB

trainmen are called to work from the call

board in chronological order rather than

according to seniority does not change

this fact. The important question is not

how work is assigned among GEB trainmen,

nor how Brown’s requested layoffs would

affect the chronology of trainmen assign

ments. Rather, the question raised by IC

is whether allowing Brown to lay off as

he requests would create for Brown a GEB

trainman position entailing fewer regular

hours per week than the standard GEB

trainman position, therefore creating a

new position under Article 55 of the

CBA./7

However, even though Brown’s ADA claim

cannot be resolved without interpreting

the CBA, it is not immediately clear

whether this fact alone will prelude him

from bringing the claim in federal court.

Amicus EEOC argues that while the RLA’s

mandatory arbitration provisions strip

courts of jurisdiction to adjudicate

state law claims whose resolution depends

upon an interpretation of a CBA, see

e.g., Hawaiian Airlines, 512 U.S. at 261-

63 (applying Lingle v. Norge Division of

Magic Chef, Inc., 486 U.S. 399 (1988)),

they do not as a matter of course

preclude similar claims brought under a

federal statute. Unlike cases involving

the RLA’s preemption of state law,

Brown’s case forces us to decide whether

the RLA precludes a claim brought under

another federal statute, and this choice

"requires an analysis of both [federal

statutes], to see if they are indeed

incompatible or if they can be

harmonized, and if they are incompatible

to decide which one Congress meant to

take precedence." Coker, 165 F.3d at 583-

84 (citations omitted). Therefore,

according to the EEOC, the district court

applied the wrong analysis when it

determined that Brown’s ADA claim was

barred simply because it could be

characterized as a "minor dispute,"

rather than carefully analyzing the two

federal statutes at issue to determine

what effect Congress intended each to

have upon the other. Further, the EEOC

asserts that the district court erred in

relying on cases involving the RLA’s

preemption of state law claims.

We do not agree that the district court

applied the wrong analysis when deciding

Brown’s claim. First, the district court

was aware that its task was to analyze

the ADA and the RLA "to determine if they

are incompatible or if they can be

harmonized," and the court made it clear

that its holding was an attempt to

harmonize the two statutes (or to give

them simultaneous effect). The district

court thus applied the proper preclusion

standard, and did not decide the case

entirely by resorting to preemption

standards. Second, we do not find that

cases addressing the RLA’s preemption of

state law claims are wholly irrelevant to

the cases like Brown’s which involve the

RLA’s potential preclusion of a claim

brought under another federal statute.

While the two types of cases implicate

some different concerns, see Coker, 165

F.3d at 583 (citations omitted) (stating

that, unlike preemption, "the question of

whether one federal law takes precedence

over another does not implicate the

Supremacy Clause"), we find the

preemption question sufficiently similar

to the preclusion question to make the

analysis employed in the RLA preemption

cases applicable here. See Saridakis v.

United Airlines, 166 F.3d 1272, 1276 (9th

Cir. 1999) (stating that "the preemption

doctrine per se does not govern questions

relating to the compatibility of two of

more federal laws," but noting that

"[l]ike the preemption question, [the

preclusion] inquiry centers on

congressional intent," and applying RLA

preemption cases like Hawaiian Airlines

in its preclusion analysis); Felt v.

Atchison, Topeka, & Santa Fe Ry. Co., 60

F.3d 1416, 1418-19 (9th Cir. 1995)

(same); see also Schiltz v. Burlington

Northern R.R., 115 F.3d 1407, 1415 (8th

Cir. 1997) (relying on RLA preemption

standards in holding that the RLA

precluded a plaintiff-employee’s ADEA

claim which was "inextricably

intertwined" with provisions of a CBA

outlining employees seniority rights);

Fry v. Airline Pilots Ass’n, Int’l, 88

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

that under current Supreme Court

jurisprudence "the threshold question

remains whether resolution of the federal

and state law claims of the plaintiffs

requires interpretation or application of

the CBAs." (citations omitted) (emphasis

supplied)); cf. Hawaiian Airlines, 512

U.S. at 259 n.6 (applying Buell, 480 U.S.

557 (1987), an RLA preclusion case, in

the preemption context and stating that

the fact that Buell was a preclusion case

"does not rob Buell of its force in [the

preemption] context" because "principles

of federalism demand no less caution in

finding that a federal statute pre-empts

state law") (citation omitted). The

standard established for the RLA’s

preemption of state law will not by

itself conclusively resolve the question

of whether the RLA precludes another

federal claim, because the latter

question requires courts first to analyze

the two federal statutes in an effort to

ascertain Congressional intent.

Nevertheless, the RLA preemption standard

remains relevant to the preclusion

inquiry, and we find that the preemption

standard should govern in a preclusion

case unless the analysis of the two

federal statutes clearly suggests

otherwise.

Moreover, an examination of the ADA’s

language and legislative history reveals

no clear congressional intent to override

the RLA’s requirement that minor disputes

be adjudicated exclusively through the

RLA’s arbitration machinery. The EEOC

notes that in enacting the ADA, Congress

recognized that while the terms of a CBA

"could be relevant . . . in determining

whether a given accommodation is

reasonable . . . the agreement would not

be determinative on the issue." H.R. Rep.

No. 101-485, pt. 2 at 63 (1990) ("H.R.

Rep."), reprinted in 1990 U.S.C.C.A.N.

303, 345; see also S. Rep. No. 101-116, at

32 (1989) ("S. Rep."). In addition, the

EEOC points to similar language in the

ADA’s House and Senate Reports stating

that "if the [CBA] includes job duties,

it may be taken into account as a factor

in determining whether a given task is an

essential function of the job." S. REP.

at 32; see also H. R. Rep. at 63./8

Relying on this language, the EEOC

maintains that Congress expressly

contemplated that courts would consider

the relevant provisions of a CBA in

adjudicating ADA claims, and argues that

this evidences Congress’ intent that the

ADA take precedence over the RLA’s

provisions providing for the mandatory

and exclusive arbitration of all disputes

requiring the interpretation of CBAs.

Moreover, as further support for this

conclusion, the EEOC notes that, unlike

ERISA, the ADA contains no provision

stating that it was not meant to "alter,

amend, modify, invalidate, impair, or

supercede any law of the United States .

. . or any rule or regulation issued

under any such law." See 29 U.S.C. sec.

1144(d). We have found such language

sufficient to preserve the RLA’s

exclusive jurisdiction over minor

disputes brought under ERISA, see Coker,

165 F.3d at 584, and the EEOC concludes

from the absence of a similar provision

in the ADA that we should reach the

opposite conclusion here. In addition,

the EEOC relies on a portion of the ADA’s

legislative history providing that an

employer’s "obligation to comply with

[the ADA] is not affected by any

inconsistent term of any collective

bargaining agreement to which it is a

party" because "an employer cannot use a

collective bargaining agreement to

accomplish what it otherwise would be

prohibited from doing under this Act."

H.R. REP. at 63; see also S. REP. at 32.

Finally, the EEOC notes that the ADA is a

comprehensive Act intended to determine

certain personal rights for workers in

all industries, and that it does not

expressly exempt the railroad industry

from its reach as do certain other

statutes. See, e.g., 29 U.S.C. sec.

213(b)(2). However, we do not find that

any of this amounts to a clearly

expressed Congressional intent to

override any requirement of the RLA. The

passages from the ADA’s legislative

history quoted above are not inconsistent

with the standard rule regarding the

RLA’s preemption or preclusion of minor

disputes. It has long been established

that "not all cases which tangentially

touch collective bargaining agreements

call for . . . preemption." Monroe, 115

F.3d at 519 (quoting Loewen Group Int’l,

Inc. v. Haberichter, 65 F.3d 1417, 1423

(7th Cir. 1995). "When the meaning of

contract terms is not the subject of

dispute, the bare fact that a collective-

bargaining agreement will be consulted in

the course of state-law litigation

plainly does not require the claim to be

extinguished." Loewen, 65 F.3d at 1421

(quoting Livadas v. Bradshaw, 512 U.S.

107, 124 (1994)). Therefore, the mere

fact Congress anticipated that courts

could "look to" (or "consider") the

provisions of a CBA in deciding an ADA

claim does not imply that Congress

intended to override the traditional

preemption/preclusion standards under the

RLA. (This is particularly true given

that the parties to an ADA claim often

might not even dispute the interpretation

of the CBA provisions at issue.)

Moreover, as has been noted, under the

established RLA preemption/ preclusion

rule, the RLA will not bar a plaintiff

from bringing an independent state or

federal claim in court unless the claim

could be "conclusively resolved" by the

interpretation of a CBA (that is, unless

the interpretation of some provision(s)

of the CBA could be dispositive of the

plaintiff’s claim). Since the provisions

of a CBA are relevant but not dispositive

in determining whether a proposed

accommodation is reasonable or whether a

particular job function is an "essential

function" under the ADA, it could be

argued that a court’s consideration of

CBAs for such purposes in general would

not transform the claim into a minor

dispute subject to preclusion by the

RLA./9 However, when the heart of the

dispute between the parties is a

disagreement over the interpretation of

some part of a CBA, the resolution of

which could by itself resolve the claim,

the claim would be precluded by the RLA

under the traditional rule. Nothing in

the text or legislative history of the

ADA clearly overturns this rule, and we

find the mere absence of language in the

Act exempting railroads from its reach or

stating that it was not meant to alter

prior laws insufficient to do so. Without

clearer guidance from Congress, we must

conclude that Congress did not intend for

the ADA to displace the RLA’s mandatory

arbitration provisions. See United States

v. Palumbo Bros., Inc., 145 F.3d 850, 865

(7th Cir. 1998) ("Absent a clearly

expressed intention that Congress

intended one federal statute to preempt

another, courts must regard each as

effective and give them simultaneous

effect.") (citation omited). We feel that

the best way to harmonize these two

statutes is to allow a plaintiff employee

to bring an ADA claim in federal court

against his employer (even if his

employment is governed by a CBA which is

subject to the RLA), unless the

resolution of his ADA claim requires the

court to interpret the CBA’s terms as a

potentially dispositive matter.

Accordingly, because Brown’s claim

requires a potentially dispositive

interpretation of the CBA’s seniority

provisions, we hold the RLA precludes his

claim. Allowing Brown to bring his claim

in federal court would sanction a

judicial incursion into what the RLA

defines as the exclusive province of the

RLA arbitration boards--the resolution of

claims by reference to the terms of CBAs.

This would "lead to the evisceration of

the grievance and arbitration procedures

provided by the RLA," see Schiltz, 115

F.3d at 1415, and we are unwilling to

take this bold step without a clearer

Congressional mandate.

However, one further challenge to our

holding needs to be addressed. In

addition to its argument from the

legislative history of the ADA, the EEOC

contends that relevant case law

conclusively establishes that the RLA

cannot preclude a plaintiff from

obtaining judicial resolution of

independent claims brought under federal

statutes like the ADA which confer rights

upon individual employees. Relying on

Alexander v. Gardner-Denver Co., 415 U.S.

36 (1974), the EEOC notes that

contractual rights arising under a CBA

and statutory rights provided by federal

employment discrimination laws are

"distinctly separate" in nature and inde

pendent of one another, and that an

aggrieved employee is free to vindicate

each type of right separately in its

proper forum (by bringing CBA rights to

arbitration or to whatever forum the CBA

dictates, and by litigating federal

statutory claims in court). See Gardner-

Denver, 415 U.S. at 50-52. The EEOC also

points to language in Gardner-Denver

stressing that arbitrators have

"authority to resolve only questions of

contractual rights," and have "no general

authority to invoke public laws that

conflict with the bargain between the

parties," see id. at 53-54, arguing that

claimants like Brown who seek judicial

resolution of their federal claims should

not be forced to bring those claims

before an arbitrator who lacks the

authority to resolve them.

Moreover,relying on Buell--a case which

addressed the RLA’s effect upon a claim

brought under the Federal Employers’

Liability Act (FELA)--the EEOC argues

that the RLA’s requirement of binding

arbitration of contractual disputes does

not preclude a disabled employee from

seeking judicial enforcement of his

independent statutory right to a

workplace free from disability

discrimination under the ADA. In Buell,

the Court rejected the defendant-

railroad’s argument that the RLA provides

"the exclusive forum for any dispute

arising out of workplace conditions,"

reasoning that "notwithstanding the

strong policies encouraging arbitration,

different considerations apply where the

employee’s claim is based on rights

arising out of a statute designed to

provide minimum substantive guarantees to

individual workers." 480 U.S. at 563, 565

(citation and internal quotation

omitted). The Court held that "the fact

that an injury otherwise compensable

under the FELA was caused by conduct that

may have been subject to arbitration

under the RLA does not deprive an

employee of his opportunity to bring an

FELA action for damages." Id. at 564.

However, while the cases cited by the

EEOC stress the independence of claims

brought under federal statutes from

similar claims brought pursuant to the

provisions of a CBA, and establish a

plaintiff’s general right to judicial

resolution of his federal claims, none of

them hold that a federal claim whose

resolution depends upon the

interpretation of a CBA should not be

precluded by the RLA. The question

presented in Gardner-Denver as whether an

employee’s statutory right to trial de

novo for a claim brought under Title VII

may be foreclosed by the plaintiff’s

prior submission of a claim involving the

same facts to final arbitration under the

nondiscrimination clause of the CBA.

Gardner-Denver held that the plaintiff

could bring his Title VII claim in

federal court, regardless of whether or

how his claims brought under the CBA’s

discrimination clause were resolved,

because his Title VII rights were

distinct from and independent of his

rights under the CBA. However, unlike

Brown’s ADA claim, the Title VII claim

brought in Gardner-Denver did not depend

for its resolution on the interpretation

of a CBA. Gardner-Denver holds only that

"the federal policy favoring arbitration

does not establish that an arbitrator’s

resolution of a contractual claim is

dispositive of a statutory claim under

Title VII." 415 U.S. at 46 n.6. While we

certainly do not question that

proposition, it does not guide us in

resolving the matter before us. IC does

not argue that Brown cannot bring his ADA

claim in federal court because he

previously brought a similar claim under

some anti-discrimination clause of the

CBA; rather, it argues that under the

facts of this case, the resolution of

Brown’s ADA claim itself depends upon

interpretation of the CBA. Therefore,

Gardner-Denver is inapposite./10

We find Buell inapplicable for similar

reasons. Buell held that the fact that an

employee’s injury which was otherwise

compensable under FELA "was caused by

conduct that might have been subject to

arbitration under the RLA" did not

deprive a Railroad employee of the right

to bring a FELA claim for damages. See

480 U.S. at 564. Buell’s FELA claim was a

simple negligence claim which presumably

required the court merely to analyze the

facts regarding his employer’s and his

co-worker’s conduct and to determine

whether that conduct constituted

actionable negligence under the standards

established by FELA./11 Like the claim

presented in Gardner-Denver, the

resolution of Buell’s claim did not

require the interpretation of a CBA, and

Buell is therefore of tenuous relevance

to Brown’s case. Buell addressed the

narrow question of whether the mere fact

that certain conduct might have been

grieved through the arbitration machinery

established by the RLA by itself

precluded a plaintiff from bringing a

claim under FELA. Answering this question

in the negative, the Court stated that an

injured worker should not be denied

recovery under FELA "simply because he

might also be able to process a narrow

labor grievance under the RLA to a

successful conclusion." Id. at 565

(emphasis supplied). Relying on Gardner-

Denver and its progeny, the Buell Court

rejected the Railroad’s argument that the

RLA’s grievance machinery is the

exclusive remedy for any of its

employees’ claims regarding workplace

conditions. ("This Court has, on numerous

occasions, declined to hold that

individual employees are, because of the

availability of arbitration, barred from

bringing claims under federal statutes."

Id. at 564 (citations omitted)). Buell

therefore stands for the general and

rather unremarkable proposition that the

RLA does not automatically preclude all

claims brought under independent federal

statutes merely because the same conduct

could be characterized as a violation of

the CBA and grieved pursuant to the RLA.

However, Buell does not hold that claims

based on federal statutes which can

themselves be conclusively resolved by

interpretation of a CBA may be brought in

federal court./12

Therefore, the language in Gardner-

Denver, Buell, and their progeny

stressing both the independence of

federal statutory claims from CBA claims

and the inability of CBA arbitrators to

adjudicate federal statutory rights and

to enforce federal statutory remedies

must be understood in its proper context

and should not be read to permit Brown’s

claim to go forward. The EEOC relies on

this language to argue that claims

brought by employees pursuant to federal

statutes which create rights for

individual workers are not precluded by

the RLA, simply because they seek to

enforce rights which exist independently

of the CBA. We reject this argument for

three reasons. First, we have already

dismissed the argument in no uncertain

terms. See Monroe, 115 F.3d at 518-20

(holding that the RLA precluded a claim

brought under FELA because the resolution

of the claim required interpretation of

the CBA). In addition, as we have noted,

the relevant precedents from the Supreme

Court and the Courts of Appeals do not

support the argument. Indeed, they

consistently rule that claims brought

under federal or state statutes which can

be "conclusively resolved" by an

interpretation of a CBA are not truly

"independent" from the CBA, and are

therefore precluded by the RLA. See

Hawaiian Airlines, 512 U.S. at 257-63;

Lingle, 486 U.S. at 407 (stating that the

state law remedy at issue in that case

was "independent" of the collective-

bargaining agreement "in the sense of

’independent’ that matters for [LMRA]

sec. 301/13 pre-emption purposes:

resolution of the state-law claim does

not require construing the collective-

bargaining agreement"); Saridakis, 166

F.3d at 1277 (stating that "as long as

the . . . claim can be resolved without

interpreting the [CBA] itself, the claim

is ’independent’ of the agreement")

(quotation omitted). Finally, a bright-

line rule that the RLA does not preclude

claims brought under other federal

statutes cannot be reconciled with the

requirement that when conducting a

preclusion inquiry a court must examine

each federal statute to determine the

effect that Congress intended the

statutes to have upon each other. Thus,

we decline to hold that the RLA’s

preclusive effect is determined in each

case entirely by the source of the right

asserted in the plaintiff’s claim. It

remains true as a general rule that the

RLA will not bar a plaintiff from

bringing a claim under an independent

federal statute in court (because such

claims are generally independent of the

CBA and will be adjudicated under non-CBA

standards). However, this rule no longer

applies if the federal claim asserted by

the plaintiff depends for its resolution

on the interpretation of a CBA. Such

claims are not "independent" of the CBA

regardless of their source, and are

therefore precluded by the RLA.

We close by stressing the limited scope

of our holding. A claim brought under an

independent federal statute is precluded

by the RLA only if it can be

dispositively resolved through an

interpretation of a CBA. This occurs

"only when a provision of the collective

bargaining agreement is the subject of

the dispute or the dispute is

substantially dependent upon an analysis

of the terms of a collective bargaining

agreement." Loewen, 65 F.3d at 1423

(citations omitted). Therefore, an

employer cannot ensure the preclusion of

a plaintiff’s claim merely by asserting

certain CBA-based defenses to what is

essentially a non-CBA-based claim, see

id., or by arguing that the action

challenged by the plaintiff is "arguably

justified" by the terms of a CBA. See

Hawaiian Airlines, 512 U.S. at 265-66.

Nor will a claim be precluded merely

because certain provisions of the CBA

must be examined and weighed as a

relevant but non-dispositive factor in

deciding a claim or a defense. Therefore,

Brown’s claim would not have been

precluded if either the parties did not

dispute the interpretation of the

relevant CBA provisions (and Brown had

merely argued that he was entitled to a

certain reasonable accommodation under

the ADA notwithstanding anything to the

contrary in the CBA),/14 or if the

disputed provisions of the CBA were

relevant but not dispositive of Brown’s

claim (as the CBA’s provisions describing

job functions are in relation to the ADA

"essential function" determination).

However, because in this case the

interpretation of the CBA’s

seniorityprovisions could dispose of

Brown’s entire ADA claim as a matter of

law, his claim is not truly "independent"

of the CBA and is precluded by the RLA.

Brown asserts that courts should allow

ADA claims "to be judicially adjudicated

in any instance where that can be done

without doing actual violence to the

competing statute." We agree. That is why

an ADA claim should be permitted to go

forward in all instances (even if the

claim "tangentially touches" a CBA, or if

a CBA claim based on the same facts has

or is being arbitrated) unless, as here,

it requires interpretation of a CBA which

could conclusively resolve the claim.

Abandoning this limitation and allowing

Brown’s claim to go forward would "do

actual violence" to the RLA.

CONCLUSION

We have considered Brown’s other

arguments, and find them meritless. For

the foregoing reasons, the district

court’s decision to dismiss Brown’s claim

for lack of subject-matter jurisdiction

is AFFIRMED.

FOOTNOTES

/1 The trainman craft includes

trainmen/brakemen/switchmen ("trainmen") and

conductors. A trainman’s primary job duties are

to throw track switches, couple and uncouple

cars, couple and uncouple hoses, and engage and

disengage brakes. Conductors perform trainman

duties and supervisory functions.

/2 However, an employee who lays off sick is not

paid for that day.

/3 The CBA provides that "[e]ach employee assigned

to the guaranteed . . . extra board shall be

guaranteed 14 days at the conductor road switcher

rate each bi-weekly period." Crew Consist Agree-

ment, Art. III, Section 2, R. 60, Ex. 2, p. 8.

IC argues that the requirement of seven day per

week availability was something that IC aggres-

sively bargained for after it eliminated regular

yard jobs.

/4 Brown also notes that the IC’s job description

for the trainman position does not list as part

of the job’s requirements that the employee be

available 7 days per week.

/5 Brown also notes that the UTU has never taken

this position either, but instead has urged IC to

grant Brown the accommodation he seeks.

/6 It should be noted that this rule only applies if

the seniority system at issue is "bona fide," or

created for a legitimate purpose rather than a

discriminatory purpose. See Eckles, 194 F.3d at

1046 n.7, 1051. However, Brown does not argue

that the CBA’s seniority system was not "bona

fide."

/7 Moreover, the fact that Brown effectively imple-

mented the accommodation he seeks by laying off

as needed for one year and no one complained says

nothing about whether allowing Brown to work in

this manner created a new position under Article

55 and should have been listed for bidding.

/8 See also 29 C.F.R. sec. 1630.2(n)(3) (2000)

(stating that evidence of whether a particular

function is essential for ADA purposes includes,

but is not limited to:

(i) The employer’s judgment as to which functions

are essential; (ii) Written job descriptions

prepared before advertising or interviewing

applicants for the job; (iii) The amount of time

spent on the job performing the function; (iv)

the consequences of not requiring the incumbent

to perform the function; (v) the terms of a

collective bargaining agreement; (vi) the work

experience of past incumbents in the job; and/or

(vii) the current work experience of incumbents

in similar jobs. (emphasis supplied)).

See also Lenker v. Methodist Hosp., 210 F.3d 792,

796 (7th Cir. 2000).

/9 For this reason, unlike the district court, we

reject IC’s arguments that Brown’s claim is

precluded by the RLA merely because the court

would have to consult certain provisions of the

CBA in determining whether seven day per week

availability is an "essential function" of the

GEB trainman position.

/10 Moreover, we note that Gardner-Denver involved

the relationship between mandatory arbitration

provisions contained in a CBA and claims brought

under federal statutes, and did not address the

effect that the RLA’s mandatory arbitration

provisions have upon other federal claims. (In-

deed, the CBA at issue in Gardner-Denver was not

even governed by the RLA, since the employer was

not a "carrier" under the RLA.) Thus, Gardner-

Denver was not a true "preclusion" case at all,

much less an RLA preclusion case, and its rele-

vance to Brown’s case appears even more remote.

/11 We note that Buell would not be barred from

bringing this type of claim in court even under

the standards established in the RLA preemption

cases. "[P]urely 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," and

are therefore not preempted by the RLA. See

Hawaiian Airlines, 512 U.S. at 261 (citation and

internal quotations omitted).

/12 Similarly, none of the ADA cases from other

circuits on which the EEOC relies involve an ADA

claim whose resolution depends upon interpreta-

tion of a CBA. See Saridakis, 166 F.3d at 1277

(holding that the RLA did not preclude a plain-

tiff airline employee from bring an ADA claim

against his employer, where his asserted ADA

right was independent of the CBA and thus could

not be "conclusively resolved" by applying CBA

standards, and where the resolution of the claim

would require the court to "review the facts

underlying [plaintiff]’s termination" as well as

the employer’s motives, but would not require an

interpretation of the CBA); Benson v. Northwest

Airlines, Inc., 62 F.3d 1108, 1115 (8th Cir.

1995). But see Bates v. Long Island R.R. Co., 997

F.2d 1028, 1034-35 (2d Cir. 1993) (applying

Gardner-Denver and its progeny and holding that

the RLA did not preclude the plaintiff’s claim

under the Rehabilitation Act even though it

implicated portions of the CBA, reasoning that

"absent the same rights and procedures provided

in federal court, arbitration should not be the

sole forum for final resolution of federal civil

rights claims").

/13 In Hawaiian Airlines, the Court adopted Lingle’s

standard for addressing LMRA preemption to re-

solve claims of RLA preemption. See 512 U.S. at

263. Thus, Lingle is directly on point.

/14 Such arguments can succeed, because not all

provisions of a CBA "are immune from limitation

by the ADA duty to reasonably accommodate." See

Eckles, 94 F.3d at 1052. Unfortunately for Brown,

however, bona fide, collectively-bargained se-

niority systems which establish rights in other

employees are "immune" in the sense that they

cannot be subverted or superceded by any command

of the ADA.