Petition for Writ of Certiorari — Dawn C. Polk, Petitioner v. Amtrak National Railroad Passenger Corporation, et al.

i

APPENDIX TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals,

April 26, 2023 ..........................................................1a

Opinion of the United States District Court for

the District of Maryland, June 27, 2022 ..............20a

Statutes Involved......................................................41a

1a

66 F.4th 500

United States Court of Appeals, Fourth Circuit.

Dawn C. POLK Plaintiff - Appellant

v.

AMTRAK NATIONAL RAILROAD PASSENGER

CORPORATION; Andrew Collins, Amtrak D.ER;

Alton Lamontagne, Roadforeman Manager;

Tracey Armstrong, Trainmaster Manager

Defendants - Appellees.

No. 22-1912

|

Argued: March 9, 2023

|

Decided: April 26, 2023

Appeal from the United States District Court for the

District of Maryland at Baltimore. Lydia Kay Griggsby,

District Judge. (1:21-cv-01740-LKG)

Attorneys and Law Firms

ARGUED: Denise M. Clark, CLARK LAW GROUP,

PLLC, Washington, D.C., for Appellant. Alison Nadine

Davis, LITTLER MENDELSON P.C., Washington, D.C.,

for Appellees. ON BRIEF: Rosa T. Goodman, LITTLER

MENDELSON, P.C., Washington, D.C., for Appellees.

Before WILKINSON, AGEE, and HEYTENS, Circuit

Judges.

2a

Opinion

Affirmed by published opinion. Judge Wilkinson wrote

the opinion, in which Judge Agee and Judge Heytens

joined.

WILKINSON, Circuit Judge.

Congress enacted the Railway Labor Act (RLA), 45

U.S.C. §§ 151 et seq., to curb disruption of the rail

yards, tracks, and terminals that tie our economy together. As relevant here, the statute directs workers

and carriers to resolve their differences through mediation and arbitration. But Dawn Polk, a rail worker,

elected to sue her employer, Amtrak, in federal court.

The district court, however, held that Polk’s claims

were subject to arbitration under the RLA. We agree

and thus affirm the judgment.

I.

Dawn Polk, an African American woman, worked

as a conductor for Amtrak National Railroad Passenger Corporation (Amtrak). During her employment,

she belonged to a division of the Sheet Metal, Air, Rail

and Transportation Workers (SMART) union, which

maintained a collective bargaining agreement (CBA)

with Amtrak.

In late 2018, Polk suffered an injury that caused

her to miss multiple months of work. Before returning

to the job, Polk was required to take a drug test in

accordance with Amtrak’s Drug and Alcohol-Free Workplace Program (Drug-Free Program). The Program

3a

specifies that “[a]ny employee returning to work after

an absence of at least 30 consecutive days . . . must

pass a [d]rug test before returning to work.” J.A. 314.

On March 25, 2019, an Amtrak representative

called Polk and asked her to take the drug test that

day. Polk promptly went to the testing site but was unable to produce an adequate sample of urine during an

allotted three-hour period. She then called Andrew

Collins, Amtrak’s director of employee relations, to ask

to reattempt the test the following morning. According

to Polk, Collins responded that “you don’t get a second

test” and advised her to undergo a medical evaluation

for shy bladder syndrome. J.A. 26. After Polk’s subsequent assessment for shy bladder syndrome came back

negative, Amtrak terminated her employment pending

an investigative hearing.

A couple of weeks later, on April 19, Amtrak extended Polk a settlement offer via her union representative. Per the offer, which the parties refer to as

“the Waiver,” Amtrak proposed to reinstate Polk so

long as she agreed to several conditions including that

she waive her right to the investigative hearing. The

Waiver also obligated Polk to see a substance abuse

professional, undergo “unannounced drug and/or alcohol follow-up testing at least six (6) times for a period

of twelve (12) months,” and “waiv[e] all rights under

the Collective Bargaining Agreement” in the event of a

future violation of the Drug-Free Program. J.A. 55-56.

Polk alleges that she signed the Waiver “under duress.”

J.A. 28.

4a

Polk returned to work on May 8, six weeks after

the initial drug test. She alleges that she received four

drug tests over the following year, and then another

seven tests in the year after that. As the tests continued into the second year following her reinstatement,

Polk expressed concern to her union that Amtrak was

testing her beyond the twelve-month period mentioned

in the Waiver. Polk alleges that the added tests caused

her embarrassment and interfered with her medical

appointments.

In early 2021, Polk collected her concerns into a

formal grievance that she filed with Amtrak’s dispute

resolution office. She alleges that she subsequently received a call from an Amtrak representative attributing the continued testing to a computer entry error.

Polk further alleges that the representative “never

called . . . back as promised” and failed to rectify the

error. J.A. 32. Two months later, Polk retired from

Amtrak on disability benefits.

In July 2021, Polk brought the instant lawsuit pro

se in the District of Maryland. She named Amtrak and

Collins as defendants, along with three other Amtrak

colleagues, Alton Lamontagne, Curtis Stencil, and

Tracey Armstrong. Polk asserted state-law claims of

breach of contract and tort, as well as a federal claim

of racial discrimination in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. She

requested $1.5 million in damages.

Defendants moved to dismiss, and Polk in turn

moved for summary judgment as well as for leave to

5a

amend her complaint. In June 2022, the district court

granted defendants’ motion and denied Polk’s two

motions. It reasoned that the Railway Labor Act

preempted Polk’s state-law claims and precluded her

federal Title VII claim because all of these claims

would “require that the Court interpret the rights

within the CBA” between Amtrak and SMART. J.A.

362.

Polk timely appealed.

II.

This appeal concerns the Railway Labor Act,

which aims to “avoid any interruption to commerce”

and “provide for the prompt and orderly settlement” of

disputes between rail workers and carriers. 45 U.S.C.

§ 151a. In relevant part, the statute sets forth a detailed dispute-resolution procedure, culminating in

arbitration, for conflicts “growing out of . . . the interpretation or application” of a collective bargaining

agreement. Id. § 153 (first). Such conflicts are known

as “minor disputes.” Hawaiian Airlines, Inc. v. Norris,

512 U.S. 246, 252-53, 114 S.Ct. 2239, 129 L.Ed.2d 203

(1994); see Consol. Rail Corp. v. Ry. Lab. Executives’

Ass’n, 491 U.S. 299, 302, 109 S.Ct. 2477, 105 L.Ed.2d

250 (1989) (“[M]ajor disputes seek to create contractual rights, minor disputes to enforce them.”).

The Supreme Court has held that the RLA’s arbitral procedure for minor disputes is “mandatory.”

Hawaiian Airlines, 512 U.S. at 252, 114 S.Ct. 2239.

Thus, minor disputes that are not resolved through an

6a

intra-carrier grievance procedure are to be referred

to arbitration. For the hearing of these matters, the

RLA created the National Railroad Adjustment Board,

a specialized tribunal consisting equally of union and

carrier representatives. 45 U.S.C. § 153 (first). Carriers

and unions may also institute their own adjustment

boards instead with a single representative from each

side. Id. § 153 (second). To secure the RLA’s arbitral

procedure, the Supreme Court has ruled that the RLA

preempts state-law claims that also constitute minor

disputes. Hawaiian Airlines, 512 U.S. at 262-63, 114

S.Ct. 2239.

III.

On appeal, Polk solely challenges the district

court’s holding that the RLA precludes her Title VII

claim. At the dismissal stage, we review the district

court’s decision de novo. AFSCME Md. Council 3 v.

Maryland, 61 F.4th 143, 148 (4th Cir. 2023). Polk argues that the RLA does not preclude her Title VII claim

because the claim is not a minor dispute. She advances

two arguments. First, Polk maintains that Title VII

claims are “never” minor disputes because Title VII

supplies an “independent” cause of action. Appellant

Opening Br. at 4. Second, and in the alternative, Polk

contends that at least her particular claim is not a minor dispute because it does not require the “interpretation or application” of a CBA. 45 U.S.C. § 153 (first).

We address each of Polk’s contentions in turn.

7a

A.

Polk first argument is categorical. She contends

that all Title VII claims are intrinsically different from

RLA minor disputes because Title VII “rights are guaranteed to employees whether or not a collective bargaining agreement exists.” Appellant Opening Br. at 9.

Polk’s proposition that a Title VII claim cannot be a

minor dispute, however, runs headlong into Supreme

Court guidance, circuit court precedent, and the congressional judgments behind the RLA. While Polk is

entitled to seek a remedy for workplace discrimination,

the RLA accords her the avenue for such relief in arbitration.

1.

The Supreme Court has indicated that federal

claims, such as those arising under Title VII, can constitute minor disputes. On multiple occasions, the

Court has explained that state causes of action can be

minor disputes even though they can arise in the absence of a CBA. Hawaiian Airlines, 512 U.S. at 261-62,

114 S.Ct. 2239; Andrews v. Louisville & Nashville R.

Co., 406 U.S. 320, 323-24, 92 S.Ct. 1562, 32 L.Ed.2d 95

(1972). That Title VII is a federal statute makes no

difference. For the Court has stated that the RLA’s

preemption inquiry for state claims and its preclusion

inquiry for federal claims are founded upon common

“principles.” Hawaiian Airlines, 512 U.S. at 259 n.6,

114 S.Ct. 2239. Whether in the preemption or preclusion context, “Congress considered it essential to keep

8a

[minor] disputes within the Adjustment Board and out

of the courts.” Atchison, Topeka & Santa Fe Ry. Co. v.

Buell, 480 U.S. 557, 562 n.9, 107 S.Ct. 1410, 94 L.Ed.2d

563 (1987).

Following the Supreme Court’s guidance, we recently stated that a “federal claim” can double as a minor dispute—and thus be subject to RLA preclusion.

Giles v. Nat’l R.R. Passenger Corp., 59 F.4th 696, 703

(4th Cir. 2023). Our sister circuits have largely agreed

when confronted with a smattering of nominally independent federal causes of action. E.g., Carmona v. Sw.

Airlines Co., 536 F.3d 344, 349 (5th Cir. 2008) (Title

VII); Brown v. Illinois Cent. R.R. Co., 254 F.3d 654,

668 (7th Cir. 2001) (Americans with Disabilities Act);

Schiltz v. Burlington N. R.R., 115 F.3d 1407, 1415 (8th

Cir. 1997) (Age Discrimination in Employment Act).

The lesson from these cases is not that a federal claim

will always be a minor dispute, but that, contrary to

Polk’s view, a federal claim can at times be one.

There is good reason not to carve out federal

claims from the RLA’s preclusive scope. Congress understood minor disputes—that is, disagreements over

the “interpretation or application” of a CBA—to be destabilizing in and of themselves. Hawaiian Airlines,

512 U.S. at 252, 114 S.Ct. 2239 (quoting 45 U.S.C.

§ 151a). The adjudication of minor disputes can determine prevailing CBA interpretations and therefore

“govern future relations” between unions and carriers.

Slocum v. Delaware, L. & W.R. Co., 339 U.S. 239, 242,

70 S.Ct. 577, 94 L.Ed. 795 (1950). As a result, minor

disputes have “long been considered a potent cause of

9a

friction leading to strikes.” Id. By getting courts out of

the business of interpreting CBAs, Congress sought to

avoid “protracted railway labor disputes” that would

adversely affect the national economy. Fairbairn v.

United Air Lines, Inc., 250 F.3d 237, 241 (4th Cir. 2001).

The RLA’s rationale has little to do with whether

a minor dispute arises from a contractual claim or

some other cause of action under state or federal law.

The end-result is the same: A minor dispute can be destabilizing because of its precedential implications for

a CBA. To mitigate that inherent risk, Congress opted

for the centralized arbitration of minor disputes over

their sporadic litigation all across the country.

This congressional decision was premised on the

several advantages that adjustment boards have over

courts. First, their members are “peculiarly competent”

in that they “understand railroad problems and speak

the railroad jargon.” Slocum, 339 U.S. at 243-44, 70

S.Ct. 577. Second, centralization fosters “a desirable

degree of uniformity” in CBA interpretations. Id. And

third, the flexibility of arbitral procedure allows for

greater delicacy and dispatch, reducing the likelihood

of “strikes bringing railroads to a halt.” Nat’l Union

Pac. R. Co. v. Bhd. of Locomotive Engineers & Trainmen

Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67,

72 (2009).

Congress is, of course, welcome to pare back the

RLA’s “mandatory arbitral mechanism.” Hawaiian Airlines, 512 U.S. at 252, 114 S.Ct. 2239. But Title VII,

the statute invoked by Polk, gives no indication that

10a

Congress meant to do that. The text of Title VII does

not refer to, let alone repudiate, the RLA’s “elaborate

administrative procedures” for minor disputes. Buell,

480 U.S. at 562, 107 S.Ct. 1410. And the broad reach of

Title VII cautions against displacing other statutory

procedures that are focused on a narrow problem. Title

VII governs almost any entity country-wide “engaged

in an industry affecting commerce” so long as it has

fifteen or more employees. 42 U.S.C. § 2000e(b). In contrast, the RLA concerns itself with railroad companies

and airlines. 45 U.S.C. § 151. As the “more specific statute,” the RLA is therefore to “be given precedence over

a more general one.” Busic v. United States, 446 U.S.

398, 406, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).

In sum, we decline to unwind a nearly century-old

statutory scheme without a clear congressional directive to do so. The mere fact that Polk’s claim arises

under Title VII does not disqualify that claim from being a minor dispute within the RLA’s ambit.

2.

Polk protests that arbitration would render her Title VII rights “ineffective.” Appellant Opening Br. at 4.

But arbitration is no death knell. In extending an arbitral forum, the RLA serves not to deny Polk due process but to afford it.

Polk’s skepticism of arbitration is, in any event,

out of step with the views of Congress and the Supreme

Court. The Supreme Court has discussed the benefits

of arbitration in recent years within the context of the

11a

Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. Congress’s view, the Court explained, is that arbitration

can offer “quicker, more informal, and often cheaper

resolutions for everyone involved.” Epic Sys. Corp. v.

Lewis, ___ U.S. ___ 138 S. Ct. 1612, 1621, 200 L.Ed.2d

889 (2018). In a string of recent cases, the Supreme

Court has rejected state-and court-made exceptions to

the FAA’s strong presumption of arbitrability. Viking

River Cruises, Inc. v. Moriana, ___ U.S. ___ 142 S. Ct.

1906, 1924, 213 L.Ed.2d 179 (2022); Epic, 138 S. Ct. at

1619; Am. Exp. Co. v. Italian Colors Rest., 570 U.S. 228,

239, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 352, 131 S.Ct.

1740, 179 L.Ed.2d 742 (2011). Under the Supreme

Court’s jurisprudence, there is no reason to fear that

arbitration will not give “statutory antidiscrimination

rights the full protection they are due.” Penn Plaza

LLC v. Pyett, 556 U.S. 247, 265 n.5, 129 S.Ct. 1456, 173

L.Ed.2d 398 (2009).

Polk appeals to Alexander v. Gardner-Denver Co.,

415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), but

the Supreme Court has substantially narrowed and explicitly repudiated that decision. See Gilmer v. Interstate/

Johnson Lane Corp., 500 U.S. 20, 35, 111 S.Ct. 1647,

114 L.Ed.2d 26 (1991); Penn Plaza, 556 U.S. at 265, 129

S.Ct. 1456. The value of arbitration does not vanish

simply because Polk raises a workplace discrimination

claim. Polk’s argument about the inefficacy of arbitration is but a riptide to the Supreme Court’s admonition that “the advantages of the arbitration process

[do not] somehow disappear when transferred to the

12a

employment context.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123, 121 S.Ct. 1302, 149 L.Ed.2d 234

(2001).

While arbitration does not compromise Title VII

protections, Polk’s proposed rule would scuttle the

RLA’s continued operation. Any dispute about a disciplinary action can be reframed through artful pleading

as a discrimination claim under Title VII. Thus, if Title

VII claims are never minor disputes, workers will be

able to “cavalierly bypass” the regular grievance process and arbitration and head straight to federal court

merely by adding allegations of discrimination to a

complaint. Zombro v. Baltimore City Police Dep’t, 868

F.2d 1364, 1367 (4th Cir. 1989). This maneuver would

not be difficult. But it would turn courts into adjudicators of first instance, whereas the RLA permits them

to reverse adjustment board decisions only for lack of

jurisdiction, failure to comply with RLA requirements,

or taint of fraud or corruption. 45 U.S.C. § 153 (first).

By blessing Polk’s new strategy of artful bypass, we

would be nullifying the RLA’s emphatic preference for

the arbitration of minor disputes.

The less disruptive alternative is for claims like

Polk’s to go to arbitration. Polk has already taken the

first step by filing a grievance with Amtrak’s dispute

resolution office. She can ultimately make her case to

an adjustment board, half composed of union representatives. 45 U.S.C. § 153. In addition, Amtrak has

represented that Polk can raise her Title VII claim and

obtain Title VII relief in the arbitral forum. Oral Arg.

at 19:43.

13a

Preclusion of a Title VII suit need not be the end

of the story. Employees can still hold their carrier accountable for discriminatory conduct. The RLA charts

the path to do so through arbitration.

B.

That Title VII claims can be RLA minor disputes

does not end our analysis, since Polk also argues that

at least her particular claim is not a minor dispute. As

noted above, minor disputes “grow[ ] out of . . . the interpretation or application” of a CBA. Hawaiian Airlines, 512 U.S. at 252, 114 S.Ct. 2239 (quoting 45 U.S.C.

§ 151a). Polk contends that her claim is not a minor

dispute because the claim is limited to “Amtrak’s discriminatory behavior and not the collective bargaining

agreement itself.” Appellant Opening Br. at 4.

We disagree. The thrust of Polk’s Title VII claim is

that Amtrak deviated from its policies when dealing

with her. While Polk’s allegations as to her own treatment are factual, those concerning Amtrak’s policies

directly implicate the relevant CBA between Polk’s union, SMART, and Amtrak. That some of Polk’s interpretive disagreements concern the Drug-Free Program

does not alter the character of her claim because the

Program is itself integrated with the CBA. Since Polk’s

Title VII claim requires the interpretation of a CBA, it

is a minor dispute.

14a

1.

The dispositive role of the CBA is illuminated by

the substance of Polk’s Title VII claim. A worker may

prove a claim of racial discrimination under Title VII

either through “direct” or “circumstantial” evidence.

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.

711, 714 n.3, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).

Polk does not refer to her race or the race of her colleagues in her complaint, apart from a conclusory

statement that she was “discriminated against due to

[her] race.” J.A. 14. Her allegations of racial discrimination are “circumstantial.” Aikens, 460 U.S. at 714

n.3, 103 S.Ct. 1478.

To make out a prima facie case of Title VII discrimination in the absence of “direct evidence,” Polk must

show “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action;

and (4) different treatment from similarly situated employees outside the protected class.” Coleman v. Md. Ct.

of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). As Polk

herself appreciates, her claim thus necessitates a

showing that she was “treated differently” than other

Amtrak employees on account of her race. Appellant

Opening Br. at 3. The concept of differential treatment,

after all, implies a difference.

The problem for Polk is that evaluating her theory

of differential treatment would require a court to interpret CBA provisions covering employee discipline

and reinstatement. That is, Polk relies on her interpretation of these provisions as a stand-in for allegations

15a

about Amtrak’s factual treatment of her similarly situated colleagues. She chiefly alleges that Amtrak

broke its own rules when it (1) terminated her for failing to complete the initial drug test, and then (2) tested

her “excessively” beyond the one-year period specified

in the Waiver. J.A. 15, 25. Yet even assuming arguendo

that these allegations could establish the element of

differential treatment in a Title VII claim, they would

still necessitate the “interpretation or application” of a

CBA. Hawaiian Airlines, 512 U.S. at 252, 114 S.Ct.

2239 (quoting 45 U.S.C. § 151a). Polk’s claim is accordingly a minor dispute.

To begin, Polk contends that Amtrak’s “policy” was

to give workers who failed to complete a drug test a

second chance, not to terminate them. J.A. 25. To determine whether Polk is correct, a court would need to

examine the CBA because the Drug-Free Program explicitly delegates discipline for union employees to the

“appropriate collective bargaining agreement.” J.A.

320. In particular, Rule 25 of the CBA governs disciplinary measures. That provision spells out when and

how Amtrak may discipline SMART members. It also

describes what kind of offense would warrant taking

an employee “out of service pending a trial and decision,” as Polk was. J.A. 292. A court would have to construe Rule 25 to decide whether Amtrak strayed from

its “policy” in disciplining Polk.

Polk maintains that Rule 25 does not cover her

mere failure to complete a drug test. But her disagreement over the rule’s proper “interpretation or application” is precisely the kind of minor dispute that the

16a

RLA reserves for adjustment boards. Hawaiian Airlines, 512 U.S. at 252, 114 S.Ct. 2239 (quoting 45 U.S.C.

§ 151a). Absent examination of the CBA, it is impossible to say whether Amtrak’s decision to terminate Polk

was standard or an aberration.

Polk’s second concern, related to the frequency of

her drug tests, likewise hinges on the CBA. Her objection primarily concerns the seven drug tests she received after the twelve-month period mentioned in the

Waiver. Polk’s position is that other employees in her

position were not tested so frequently under Amtrak’s

policy, and that she has therefore shown differential

treatment.

But Polk was not a regular Amtrak employee for

drug testing purposes during the relevant time period.

She had already been terminated and reinstated for a

Drug-Free Program violation, which she admitted to

as part of the Waiver. J.A. 55. For some employees, only

the Drug-Free Program might have been relevant to

determining Amtrak’s policy for testing frequency. But

for those in Polk’s situation, the corresponding policy

implicates not only the Program but also the CBA provisions that govern employee reinstatement.

Two CBA provisions, in particular, are critical to

interpreting Amtrak’s policy. Namely the “Rule G Bypass Agreement” and the “Prevention Program Companion Agreement” set forth reinstatement conditions

for a worker following a drug violation. These provisions provide for “testing . . . for up to two years” and a

“probationary basis for . . . two years” with “periodic

17a

alcohol and/or drug tests.” J.A. 298, 300 (emphasis

added). These two-year provisions could entirely account for Amtrak’s allegedly excessive testing of Polk,

which took place in the two years after her reinstatement. Whether these provisions applied to Polk and

how they are to be reconciled with the one-year period

mentioned in the Waiver are questions of CBA “interpretation or application” that constitute an RLA minor

dispute. Hawaiian Airlines, 512 U.S. at 252, 114 S.Ct.

2239 (quoting 45 U.S.C. § 151a).

2.

Polk tries to distance her interpretative assumptions from the CBA by isolating them within the DrugFree Program. But, as an initial matter, the Drug-Free

Program cannot be so cleanly removed from the CBA.

To do so would divorce Polk’s violation from Amtrak’s

remedy. Yet Polk’s “refusal to test” under the Program

would mean little detached from Amtrak’s disciplinary

action that resulted from it. Likewise, an understanding of the Program’s random testing policy would be

incomplete without consideration of the CBA’s reinstatement provisions that explicitly refer to drug

testing. That clear lines between the CBA and Program are difficult to draw is typified by the Waiver,

which led to Polk’s reinstatement. Although Polk depicts the Waiver as a private agreement between her

and Amtrak, it referenced the CBA and was addressed

to and signed by Polk’s union representative.

18a

The separation Polk seeks further overlooks the

fact that the CBA incorporates the Drug-Free Program. CBAs are not limited to their express terms. For

a CBA is “not an ordinary contract,” but a “generalized

code to govern a myriad of cases which the draftsmen

cannot wholly anticipate.” Consol. Rail, 491 U.S. at

311-12, 109 S.Ct. 2477 (internal quotation marks omitted). A CBA therefore incorporates any “practice, usage

and custom” which has been “acquiesced in by the

[u]nion.” Id. (internal quotation marks omitted); see

also Fry v. Airline Pilots Ass’n, Int’l, 88 F.3d 831, 836

(10th Cir. 1996) (noting that CBAs may “implicate

practices, procedures, implied authority, or codes of

conduct that are part of the working relationship”).

The Drug-Free Program encompasses an ensemble of practices and customs that became de facto

working conditions for SMART members such as Polk.

The latest version of the Program had been in effect

since June 2017—almost two years before Polk’s initial

test. Its policies were no secret. In Polk’s words, the

Program was carried out with respect to “all Amtrak

employees, contractors, volunteers, and applicants who

have received a conditional offer of employment.” Appellant Opening Br. at 11. Amtrak’s actions would almost inescapably be measured by its fidelity to or

departure from the CBA and Drug-Free Program.

Polk provides no basis to believe that her union

was unaware of or hostile to the Program’s years-old

policies. If anything, the fact that the CBA and DrugFree Program cross-reference each other suggests that

19a

SMART knew of the Program and had negotiated suitable accommodations for its members.

This conclusion comports with the rationale for

collective bargaining. A CBA “covers the whole employment relationship,” Steelworkers v. Warrior & Gulf Co.,

363 U.S. 574, 579, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960),

and for good reason. Workers support unions in the

hopes of obtaining firm rights and protections. Unions

and carriers devote substantial time and energy to negotiating comprehensive, amenable accords. The resulting CBAs are not meant to be brittle arrangements

that labor or management can sidestep on a whim. The

whole point is for CBA procedures to be put to workplace use. That really is all this case is about.

IV.

Based on the terms of the CBA, “the gravamen” of

Polk’s Title VII claim is that Amtrak “violated the CBA

or improperly applied it.” Giles, 59 F.4th at 703. She

has therefore raised a minor dispute. To prevent minor

disputes from becoming major ones, we hold that Polk’s

Title VII claim is subject to arbitration under the RLA.

Polk does not challenge the other parts of the district

court’s holding on appeal, and we see no reason to disturb them. We therefore affirm the judgment of the district court.

AFFIRMED

20a

2022 WL 2304678

Only the Westlaw citation is currently available.

United States District Court, D. Maryland.

Dawn C. POLK, Plaintiff,

v.

AMTRAK NATIONAL RAILROAD PASSENGER

CORPORATION, et al., Defendants.

Civil Action No. 21-cv-01740-LKG

|

Signed 06/27/2022

Attorneys and Law Firms

Dawn C. Polk, Glen Burnie, MD, Pro Se.

Alison N. Davis, Rosa Trembour, Littler Mendelson

PC, Washington, DC, for Defendants Amtrak National

Railroad Passenger Corporation, Alton Lamontagne.

MEMORANDUM OPINION AND ORDER

LYDIA KAY GRIGGSBY, District Judge.

I.

INTRODUCTION

Plaintiff pro se, Dawn C. Polk, brings this civil action alleging breach of contract, tort, and employment

discrimination claims against defendants, Amtrak National Railroad Passenger Corporation (“Amtrak”), Andrew Collins, Alton Lamontagne, Curtis Stencil, and

Tracey Armstrong, pursuant to state law and Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to

21a

2000e-17. See generally Compl., ECF No. 1. Defendants

have moved to dismiss this action pursuant to Fed. R.

Civ. P. 12(b)(1) and (6).1 See Def. Mot., ECF No. 34.

Plaintiff has also moved for summary judgment in her

favor, pursuant to Fed. R. Civ. P. 56. See Pl. Mot. Summ.

J., ECF No. 56. In addition, plaintiff has moved for

leave to amend the demand in the complaint. See Pl.

Mot. Amend, ECF No. 24.

These motions have been fully briefed. See generally Def. Mot.; Pl. Resp., ECF No. 38; Def. Reply., ECF

No. 48; Def. Resp., ECF No. 58. No hearing is necessary

to resolve these motions. L.R. 105.6 (D. Md. 2021). For

the reasons set forth below, the Court: (1) GRANTS defendants’ motion to dismiss; (2) DENIES plaintiff ’s

motion for leave to amend the complaint; (3) DENIESas-MOOT plaintiff ’s motion for summary judgment;

and (4) DISMISSES the complaint.

1

On November 4, 2021, defendant Lamontagne voluntarily

accepted service of process. See ECF No. 44 at 1. To date, plaintiff

has not served defendants Collins, Stencil or Armstrong. See Def.

Mem. at 3 n.2. While defendant Amtrak is the only defendant that

has moved to dismiss this matter, the Court construes Amtrak’s

motion as filed on behalf of all defendants, as the other named

defendants are all Amtrak employees. See Compl. at 2-3.

22a

II.

FACTUAL

GROUND2

AND

PROCEDURAL

BACK-

A. Factual Background

Plaintiff pro se, Dawn Polk, brings this civil action

alleging breach of contract, tort, and employment discrimination claims against defendant Amtrak and several individually named defendants, pursuant to state

law and Title VII of the Civil Rights Act of 1964. See

generally Compl.

Plaintiff is African American and a former Amtrak

employee. See id. at 5. Defendant Amtrak is a passenger railroad service that provides rail service in the

contiguous United States and was plaintiff ’s employer

during the time period relevant to this matter. See Def.

Mem., ECF No. 34-1 at 2. Defendant Andrew Collins is

the Director of Employee Relations for Amtrak and defendant Alton Lamontagne is the road foreman manager for Amtrak. See generally Compl. at 2. Defendants

Curtis Stencil and Tracey Armstrong are trainmaster

managers for Amtrak. Id. at 3.

2

The facts recited in this Memorandum Opinion and Order

are taken from the complaint (“Compl.”); the supplements to the

complaint (“Suppl. to Compl.”); plaintiff ’s response in opposition

to defendants’ motion to dismiss (“Pl. Resp”); plaintiff ’s supplemental responses in opposition to defendants’ motion to dismiss

(“Pl. Addl. Suppl. Resp.”); defendants’ motion to dismiss (“Def.

Mot.”), and memorandum in support thereof. (“Def. Mem.”).

23a

Plaintiff ’s Amtrak Employment

As background, plaintiff was an employee of

Amtrak and a member of the Sheet Metal Air Rail and

Transportation Workers Conductors NEC (“SMART”)

labor union. See id. at 9 (referencing plaintiff ’s union

status); see also Compl. Ex. 1 at 1, ECF No. 1-1 (email

string between Amtrak and SMART regarding plaintiff ). Plaintiff ’s employment was governed by a collective bargaining agreement (“CBA”) between Amtrak

and SMART. See generally Def. Mot. Ex. 1, Decl. of Eric

Dartt (“Dartt Decl.”) at ¶ 2, ECF No. 34-2.

After plaintiff was injured at the workplace in December 2018, she took a “return-to-work” drug test on

March 25, 2019. See Compl. at 6. Amtrak determined

that plaintiff failed to produce a sufficient urine sample for this test as authorized under the Amtrak Drug

and Alcohol-Free Workplace Program.3 See id.; see also

Compl. Ex. 1 at 3. And so, Amtrak temporarily terminated plaintiff ’s employment for six weeks under

Amtrak’s rules for drug testing violations in April

2019. See Compl. at 6.

On April 19, 2019, plaintiff was reinstated to work

under a waiver of investigatory hearing agreement

(the “Waiver Agreement”) by and between SMART and

Amtrak. See Compl. Ex. 1 at 3-4. Under the terms of

3

Amtrak’s Drug and Alcohol-Free Workplace Policy provides

the steps that employees should take following a drug test violation and requires that all disciplinary action must comply with

the requirements of the applicable collective bargaining agreement.” See Dartt Decl. Ex. B at Section C § 5.0.

24a

the Waiver Agreement, plaintiff agreed to work with a

substance abuse professional and to undergo periodic

follow-up drug testing. See Pl. Resp. at 15. Thereafter,

plaintiff took another return-to-work drug test on

April 30, 2019. See 2d Suppl. to Compl. at 2, ECF No.

32.

Plaintiff alleges that she was improperly subjected

to several additional drug tests after the Waiver Agreement expired. See id. at 5 (alleging that the unannounced follow-up drug tests were accompanied by

willful violations of hours of service as “management

Andrew Collins made me stay pass the allotted 12

hours on duty causing a willful violation of hours of

service in order to provide a urine specimen”). On February 4, 2021, plaintiff filed an Amtrak Dispute Resolution Office (“DRO”) report challenging the drug tests.

See Pl. Resp. at 11; see also Pl. Addl. Supp. Resp. at 1,

ECF No. 41-2. But, this report was not resolved. See Pl.

Resp. at 14.

Plaintiff retired from Amtrak on disability on May

1, 2021. See Compl. at 13. Thereafter, on May 10, 2021,

plaintiff received a right to sue letter from the Equal

Employment Opportunity Commission (“EEOC”), after

she filed an unsuccessful EEO complaint alleging employment discrimination. See Compl. Ex. 1 at 10.

Plaintiff ’s Allegations

Plaintiff ’s complaint is difficult to follow. But, it

appears that the gravamen of plaintiff ’s complaint is

that she alleges Amtrak discriminated against her, and

25a

improperly terminated her employment, by incorrectly

implementing Amtrak’s Drug and Alcohol-Free Workplace Program. See Compl. at 7. Specifically, plaintiff

alleges: (1) breach of contract; (2) intentional infliction

of emotional distress; and (3) employment discrimination claims in the complaint. See id. at 7-9.

With regards to her breach of contract claims,

plaintiff alleges that Amtrak violated the Amtrak

Drug and Alcohol-Free Workplace Policy, by refusing to

grant her a second drug test after she failed a returnto-work drug test in 2019. See 2d Suppl. to Compl. at

2. Plaintiff also alleges that defendants breached the

Waiver Agreement by requiring that she undergo additional drug tests after this agreement expired. See

Compl. at 9.

With regards to her intentional infliction of emotional distress claim, plaintiff alleges that defendants

caused her emotional distress by improperly implementing the Amtrak Drug and Alcohol-Free Workplace Policy. See 2d Suppl. to Compl. at 2 (alleging that

failure to provide a second return-to-work drug test

“caused me a lot of emotional distress, severe depression and a lot of anxiety.”). Lastly, plaintiff alleges that

defendants discriminated against her, upon the basis

of race, by, among other things, wrongfully terminating

her employment “for [six] weeks due to [Amtrak]

breaching its own Drug and Alcohol Policy Agreement

of 2017.” See Compl. at 7.

26a

The Relevant Agreements

There are several agreements involving plaintiff,

SMART and Amtrak that are relevant to plaintiff ’s

claims:

First, plaintiff ’s employment with Amtrak was

governed by a CBA by and between Amtrak and

SMART, which provides that the agreement “governs

the rates of pay, hours of service and working conditions of all employees.” See Dartt Decl. at ¶ 2; see also

Dartt Decl. Ex. A at 5. The CBA includes provisions

regarding an employee’s use or possession of alcoholic beverages, intoxicants, narcotics, and the consequences of this conduct for Union members. See Dartt

Decl. Ex. A at 7-10.

Second, the CBA contains two appendices that

provide a comprehensive scheme for the resolution of

drug testing violations committed by Union members.

See Def. Mem. at 6. Specifically, the “Rule G Bypass

Agreement” and the “Prevention Program Companion

Agreement” are included in the CBA to help prevent

the termination of employees for drug and alcohol violations and to encourage compliance with industrywide drug and alcohol guidelines. See Dartt Decl. Ex. A

at 11-16. In this regard, the “Rule G Bypass Agreement” provides guidelines on how to be reinstated after a Union member has been released from service

due to a drug test violation. See id. at 11-13. The “Prevention Program Companion Agreement” provides additional guidance to the Union members on how to

pursue reinstatement and the waiver of a Rule G

27a

charge, including substance abuse counseling and follow-up drug testing. See id. at 14-16.

Lastly, the Waiver Agreement is authorized by the

Amtrak Drug and Alcohol-Free Workplace Policy and

is governed by the CBA. See id. at 14. This agreement

was executed by Amtrak and SMART to allow plaintiff

to be reinstated following her six-week termination.

See Compl. Ex. 1 at 3-4. The Waiver Agreement explicitly refers to the CBA and provides that any further

violations of the Amtrak drug testing policy will result

in plaintiff ’s “immediate return to terminated status,

waiving all rights under the Collective Bargaining

Agreement.” See id. at 4.

B. Procedural Background

Plaintiff commenced this action on July 12, 2021.

See Compl. Plaintiff filed supplements to the complaint

on October 12, 2021, October 14, 2021, October 15,

2021, November 8, 2021, and November 17, 2021, respectively. See generally Supp. Compl.

On October 12, 2021, plaintiff filed a motion to

amend the original demand in the complaint. See Pl.

Mot. Amend. On October 26, 2021, defendants filed a

motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(1)

and (6), a response in opposition to plaintiff ’s motion

to amend and a memorandum in support thereof. See

Def. Mot.; Def. Mem. On October 28, 2021, plaintiff filed

a response in opposition to defendants’ motion to dismiss. See Pl. Resp.

28a

On October 29, 2021, November 1, 2021, and November 8, 2021, respectively, plaintiff filed supplements

to her response to defendants’ motion to dismiss. See

Pl. Supp. On November 11, 2021, defendants filed a reply in support of their motion to dismiss. See Def. Reply.

On January 24, 2022, plaintiff filed a motion for

summary judgment, pursuant to Fed. R. Civ. P. 56. See

Pl. Mot. Summ. J. Defendants filed a response in opposition to plaintiff ’s motion for summary judgment on

February 3, 2022. See Def. Resp.

These motions having been fully briefed, the Court

resolves the pending motions.

III. LEGAL STANDARDS

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

A motion to dismiss for lack of subject-matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), is a challenge to the Court’s “competence or authority to hear

the case.” Davis v. Thompson, 367 F. Supp. 2d 792, 799

(D. Md. 2005). The United States Supreme Court has

explained that subject-matter jurisdiction is a “threshold matter” that is “inflexible and without exception.”

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 9495 (1995) (quoting Mansfield, C. & L.M.R. Co. v. Swan,

111 U.S. 379, 382 (1884)). And so, an objection that the

Court lacks subject-matter jurisdiction “may be raised

by a party, or by a court on its own initiative, at any

stage in the litigation, even after trial and the entry of

29a

judgment.” Arbaugh v. Y&H Corp., 546 U.S. 500, 506

(2006).

The United States Court of Appeals for the Fourth

Circuit has also explained that the plaintiff bears the

burden of establishing that subject-matter jurisdiction

exists. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th

Cir. 1999) (citing Richmond, Fredericksburg & Potomac

R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.

1991)). Given this, the Court “regard[s] the pleadings

as mere evidence on the issue[ ] and may consider evidence outside the pleadings without converting the

proceeding to one for summary judgment,” when deciding a motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(1). Id. (citation omitted). And so, if a plaintiff

“fails to allege facts upon which the court may base jurisdiction,” then the Court should grant a motion to

dismiss for lack of subject-matter jurisdiction. Davis,

367 F. Supp. 2d at 799 (citation omitted).

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

To survive a motion to dismiss under Fed. R. Civ.

P. 12(b)(6), a complaint must allege enough facts to

state a plausible claim for relief. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim is plausible when

“the plaintiff pleads factual content that allows the

[C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing

Twombly, 550 U.S. at 556). When evaluating the sufficiency of a plaintiff ’s claims under Fed. R. Civ. P.

30a

12(b)(6), the Court accepts the factual allegations in

the complaint as true and construes them in the light

most favorable to the plaintiff. Nemet Chevrolet, Inc. v.

Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir.

2009); Lambeth v. Bd. of Comm’rs of Davidson Cty., 407

F.3d 266, 268 (4th Cir. 2005) (citations omitted). But,

the complaint must contain more than “legal conclusions, elements of a cause of action, and bare assertions

devoid of further factual enhancement. . . .” Nemet

Chevrolet, 591 F.3d at 255. And so, the Court should

grant a motion to dismiss for failure to state a claim if

“it is clear that no relief could be granted under any set

of facts that could be proved consistent with the allegations.” GE Inv. Private Placement Partners II, L.P. v.

Parker, 247 F.3d 543, 548 (4th Cir. 2001) (quoting H.J.

Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 249-50 (1989)).

C. The Railway Labor Act

The Railway Labor Act (“RLA”), 45 U.S.C. §§ 151

to 181, is intended “to promote stability in labor-management relations by providing a comprehensive

framework for resolving labor disputes.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994) (citation

omitted). The United States Courts of Appeal for the

Fourth Circuit has recognized that federal policy favoring arbitration “has special importance in the rail and

air industries, where failure to resolve labor disputes

in a ‘prompt and orderly’ manner may ‘interrupt[ ] . . .

commerce’ and thus adversely affect the public interest in traveling and shipping.” Air Line Pilots Ass’n v.

United States Airways Grp., 609 F.3d 338, 341 (4th Cir.

31a

2010) (ellipses and brackets in original) (quoting 45

U.S.C. § 151a); see also Consol. Rail Corp. (Conrail)

v. Ry. Labor Exec. Ass’n, 491 U.S. 299, 310 (1989) (“Referring arbitrable matters to the [National Railroad

Adjustment] Board . . . assur[es] that collectivebargaining contracts are enforced by arbitrators who

are experts in ‘the common law of [the] particular industry.”).

The RLA establishes a mandatory arbitral mechanism for two types of disputes, one of which is a “minor dispute.”4 Hawaiian Airlines, 512 U.S. at 252.

Minor disputes “gro[w] out of . . . the interpretation or

application of ” a collective bargaining agreement and

“involve ‘controversies over the meaning of an existing

collective bargaining agreement in a particular fact

situation.’ ” Id. at 252-53 (citation omitted) (brackets in

original). Courts have recognized that such disputes

also “implicate practices, procedures . . . or codes of

conduct that are part of the working relationship,” and

“industry standards, and ‘norm[s] that the parties

have created but have omitted from the [CBA]’s explicit language.” Fry v. Airline Pilots Ass’n Intern., 88

F.3d 831, 836 (10th Cir. 1996) (citation omitted) (emphasis in original); see also Milam v. Herrlin, 819

F. Supp. 295, 305 (S.D.N.Y. 1993) (“Claims arising out

of ‘minor’ disputes are preempted by the RLA even

4

The Fourth Circuit has recognized that railroads and other

carriers have “a ‘light burden’ to establish arbitrability under the

RLA.” See Ry. Labor Execs. Ass’n v. Chesapeake W. Ry., 915 F.2d

116, 119 (4th Cir. 1990); see also Connor v. LoveyBug, LLC, Civil

No. 20-425, 2021 WL 2915400, at *6 (E.D. Va. July 12, 2021).

32a

when it appears that no specific provision of the collective bargaining agreement is directly applicable.”).

And so, courts have held that the interpretation of a

collective bargaining agreement, and the customary

procedures used in enforcing it, may be undertaken

only by an arbitration board convened under the RLA.

Brown v. Ill. Cent. R. R. Co., 254 F.3d 654, 664 (7th Cir.

2001).

D. Fed. R. Civ. P. 15

Lastly, Fed. R. Civ. P. 15(a)(2) provides that, when

a party cannot amend a pleading by right, “a party may

amend its pleading only with the opposing party’s

written consent or the court’s leave.” Fed. R. Civ. P.

15(a)(2). The decision of whether to grant or deny leave

to amend is within the discretion of the Court, and the

Court “should freely” grant leave to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Foman

v. Davis, 371 U.S. 178, 182 (1962). But, the Court

should deny a party leave to amend “when the amendment would be prejudicial to the opposing party, there

has been bad faith on the part of the moving party, or

the amendment would be futile.” Johnson v. Oroweat

Foods Co., 785 F.2d 503, 509 (4th Cir. 1986) (citing Foman, 371 U.S. at 182). An amendment is futile “when

the proposed amended complaint fails to state a claim.”

Van Leer v. Bank Securities, Inc., 479 Fed. App’x 475,

479 (4th Cir. 2012). And so, the Court should deny a

motion for leave to amend if “the proposed amendments could not withstand a motion to dismiss.” Cuffee

33a

v. Verizon Communications, Inc., 755 F. Supp. 2d 672,

677 (D. Md. 2010) (citation omitted).

IV. LEGAL ANALYSIS

Defendants have moved to dismiss this matter because, among other things, plaintiff ’s breach of contract, tort, and Title VII claims are either preempted or

precluded by the RLA. See Def. Mem. at 9-13. Because

defendants raise a threshold jurisdictional issue regarding whether the Court may entertain plaintiff ’s

claims, the Court addresses this issue before considering the other arguments raised in the defendants’ motion to dismiss. See Davis, 367 F. Supp. 2d at 799

(explaining that a motion to dismiss for lack of subjectmatter jurisdiction is a challenge to the Court’s “competence or authority to hear the case”).

Plaintiff does not directly respond to defendants’

argument that her claims are either preempted or precluded by the RLA. See generally Pl. Resp. But, plaintiff, nonetheless, argues that the Court should deny

defendants’ motion and consider her claims. Id.

For the reasons that follow, a careful reading of the

complaint and the collective bargaining agreement at

issue in this case makes clear that plaintiff ’s breach of

contract, tort, and Title VII claims require that the

Court interpret the rights within the CBA to resolve

these claims. Under such circumstances, the RLA applies and preempts or precludes plaintiff ’s claims. Because the RLA bars all claims in this case, plaintiff ’s

proposed amendment to the complaint is also futile.

34a

And so, the Court: (1) GRANTS defendants’ motion to

dismiss; (2) DENIES plaintiff ’s motion for leave to

amend the complaint; (3) DENIES-as-MOOT plaintiff ’s motion for summary judgment; and (4) DISMISSES the complaint.

A. Plaintiff ’s State Law Claims Are Preempted By The RLA

1. Plaintiff’s Breach Of Contract Claims

Are Preempted By The RLA

As an initial matter, defendants persuasively argue that plaintiff ’s breach of contract claims are preempted by the RLA, because the resolution of these

claims would require the Court to interpret the rights

and obligations regarding Amtrak’s Drug and AlcoholFree Workplace Policy under the CBA.

The Supreme Court has held that the RLA establishes a “mandatory arbitral mechanism” for minor

disputes, which include disputes involving the interpretation or application of a collective bargaining

agreement and controversies regarding the meaning of

a collective bargaining agreement. See Hawaiian Airlines, 512 U.S. at 252-53. And so, courts have held that

the interpretation of a collective bargaining agreement, and the customary procedures used in enforcing

it, may be undertaken only by an arbitration board

convened under the RLA. See Brown, 254 F.3d at 664;

see also Clark v. Newport News Shipbuilding and Dry

Dock Co., 937 F.2d 934, 936-38 (4th Cir. 1991) (holding

that the Labor Management Relations Act, another

35a

federal labor law with a similar preemption application, preempted the plaintiff ’s state law claims, because CBA governed the employment relationship);

Connor v. LoveyBug, LLC, No. 20-425, 2021 WL 2915400,

at *8 (E.D. Va. July 12, 2021) (holding that, where a

plaintiff alleges a breach of drug testing policies governed by a CBA, the duty of the employer derives from

that agreement and were not “rights and obligations

that exist independent of the CBA”).

In this case, plaintiff alleges that defendants

breached Amtrak’s Drug and Alcohol-Free Workplace

Policy, by refusing to grant her a second drug test after

she failed a return-to-work drug test in 2019, and that

defendants also breached the Waiver Agreement by requiring that she undergo additional drug tests after

the expiration of this agreement. See Compl. at 9. It is

undisputed that plaintiff ’s employment with Amtrak

was governed by a collective bargaining agreement.

See Dartt Decl. at ¶ 2; see also Pl. Resp. It is also

undisputed that the CBA contains a “Rule G Bypass

Agreement” and a “Prevention Program Companion

Agreement,” which provide a comprehensive scheme

for the resolution of drug testing violations committed

by plaintiff and other Union members. See Def. Mem.

at 6; see also Pl. Resp.; Dartt Decl. Ex. A at 11-13.

Notably, the “Rule G Bypass Agreement” provides

guidelines on how to be reinstated after a Union member has been released from service due to a drug test

violation. See Dartt Decl. Ex. A at 11-13. The “Prevention Program Companion Agreement” also provides

additional guidance to Union members on how to

36a

pursue reinstatement and the waiver of a Rule G

charge, including substance abuse counseling and follow-up drug testing. See id. at 14-16.

The Waiver Agreement, which is also the subject

of plaintiff ’s breach of contract claims, is similarly governed by the CBA. In fact, it is undisputed that the

Waiver Agreement is authorized by the “Rule G Bypass

Agreement” and the “Prevention Program Companion

Agreement.” See Def. Mem. at 6; Dartt Decl. Ex. B at

24; see also Pl. Resp.

Given this, the Court would need to interpret the

terms of the CBA to resolve plaintiff ’s breach of contract claims. And so, these claims are preempted by the

RLA and must be dismissed. Fed. R. Civ. P. 12(b)(1) and

(6); see also Brown, 254 F.3d at 664; Clark, 937 F.2d at

937.

2. Plaintiff ’s Tort Claim Is Preempted

By The RLA

For similar reasons, plaintiff ’s tort claim is

preempted by the RLA. In the complaint, plaintiff alleges that defendants caused her emotional distress by

improperly implementing Amtrak’s Drug and AlcoholFree Workplace Policy. See 2d Suppl. to Compl. at 2 (alleging that failure to provide a second return-to-work

drug test “caused me a lot of emotional distress, severe

depression and a lot of anxiety.”). And so, plaintiff ’s

tort claim—like her breach of contract claim—is based

upon the rights and obligations under Amtrak’s Drug

and Alcohol-Free Workplace Policy as set forth in the

37a

CBA. See Dartt Decl. Ex. A at 11-16; see also Dartt

Decl. Ex. B at 24.

Because the Court must analyze Amtrak’s actions

based upon the duties provided within the CBA to resolve plaintiff ’s tort claim, the RLA preempts this

claim. See Milam v. Herrlin, 819 F. Supp. 295, 306

(S.D.N.Y. 1993) (holding that plaintiff ’s tort claim of

negligent intentional infliction of emotional distress is

preempted by the RLA where the court found that the

drug testing procedure was “a critical issue addressed

in the collective bargaining process”). And so, plaintiff ’s tort claim is preempted by the RLA and must also

be dismissed. Fed. R. Civ. P. 12(b)(1) and (6).

3. Plaintiff ’s Title VII Claim Is Precluded By The RLA

To the extent that plaintiff asserts a Title VII

claim in this case, the Court also agrees with defendants that this claim is precluded by the RLA.

In Caldwell v. Norfolk S. Corp., the United States

District Court for the Western District of North Carolina held that an employment discrimination claim

brought pursuant to Title VII was preempted, because

the claim involved the interpretation and application

of a collective-bargaining agreement. Caldwell v. Norfolk S. Corp., No. 96-443, 1998 WL 1978291, at *5

(W.D.N.C. Mar. 3, 1998). Specifically, the district court

found that:

38a

In order to determine whether Plaintiff has

stated a prima facie case of discrimination

under Title VII, the Court must determine

whether Defendant was required to award the

position at issue based solely on seniority, or

whether other factors such as relative experience could be considered. As such, Plaintiff ’s

Title VII claim cannot be decided wholly apart

from the Collective Bargaining Agreement,

does not present purely factual issues which

do not require interpretation and application

of the Collective Bargaining Agreement, and

involves a “minor dispute” as defined by the

Act. Accordingly, the Act provides the exclusive means for resolving this dispute and

summary judgment is appropriate.

Id.; see also Brown, 254 F.3d at 664, 668 (holding that

“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” and that “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”).

Similarly, here, plaintiff ’s Title VII claim involves

the interpretation and application of the CBA at issue

in this case, because plaintiff alleges that defendants

discriminated against her by wrongfully terminating

her employment under Amtrak’s Drug and AlcoholFree Workplace Policy. See Compl. at 7. Given this,

plaintiff ’s employment discrimination claim is not

39a

independent of the CBA that governed her employment.5 And so, the Court must dismiss this claim. Fed.

R. 12(b)(1) and (6).

B. Leave To Amend The Complaint Is Not

Warranted

As a final matter, the Court must deny plaintiff ’s

motion for leave to amend the complaint, because the

proposed amendment would be futile. The Fourth Circuit has recognized that amendment to a complaint is

futile “when the proposed amended complaint fails to

state a claim.” Van Leer, 479 Fed. App’x at 479. And so,

the Court should deny plaintiff ’s motion for leave to

amend the complaint in this case, if “the proposed

amendments could not withstand a motion to dismiss.”

Cuffee, 755 F. Supp. 2d at 677 (citation omitted). Here,

plaintiff seeks leave to amend the demand in the complaint to change the amount of monetary damages

sought in this case. See Pl. Mot. Amend. But, as discussed above, plaintiff ’s claims in this matter are either preempted or precluded by the RLA. Given this,

the proposed amendment would be futile. And so, the

Court DENIES plaintiff ’s motion for leave to amend

the complaint. Fed. R. Civ. P. 15.

5

Because the Court concludes that plaintiff ’s claims are either preempted or precluded by the RLA, the Court does not reach

other issues raised in the defendants’ motion to dismiss.

40a

V.

CONCLUSION

In sum, a careful reading of the complaint makes

clear that the RLA preempts or precludes plaintiff ’s

claims in this case. Because the RLA applies to plaintiff ’s claims, her proposed amendment to the complaint would also be futile.

And so, for the foregoing reasons, the Court:

1.

GRANTS defendants’ motion to dismiss;

2. DENIES plaintiff ’s motion for leave to amend

the complaint;

3. DENIES-as-MOOT plaintiff ’s motion for

summary judgment; and

4.

DISMISSES the complaint.

Judgment is entered accordingly.

Each party to bear its own costs.

IT IS SO ORDERED.

41a

STATUTES INVOLVED

45 U.S.C. § 153 provides in pertinent part:

National Railroad Adjustment Board

First. Establishment; composition; powers and duties;

divisions; hearings and awards; judicial review

There is established a Board, to be known as the “National Railroad Adjustment Board”, the members of

which shall be selected within thirty days after June

21, 1934, and it is provided –

(a) That the said Adjustment Board shall consist of

thirty-four members, seventeen of whom shall be selected by the carriers and seventeen by such labor organizations of the employees, national in scope, as

have been or may be organized in accordance with the

provisions of sections 151a and 152 of this title.

*

*

*

(i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of

agreements concerning rates of pay, rules, or working

conditions, including cases pending and unadjusted on

June 21, 1934, shall be handled in the usual manner

up to and including the chief operating officer of the

carrier designated to handle such disputes; but, failing

to reach an adjustment in this manner, the disputes

may be referred by petition of the parties or by either

party to the appropriate division of the Adjustment

42a

Board with a full statement of the facts and all supporting data bearing upon the disputes.

*

*

*

(k) Any division of the Adjustment Board shall have

authority to empower two or more of its members to

conduct hearings and make findings upon disputes,

when properly submitted, at any place designated by

the division: Provided, however, That except as provided in paragraph (h) of this section, final awards as

to any such dispute must be made by the entire division as hereinafter provided.

(l) Upon failure of any division to agree upon an

award because of a deadlock or inability to secure a

majority vote of the division members, as provided in

paragraph (n) of this section, then such division shall

forthwith agree upon and select a neutral person, to be

known as “referee”, to sit with the division as a member thereof, and make an award. Should the division

fail to agree upon and select a referee within ten days

of the date of the deadlock or inability to secure a majority vote, then the division, or any member thereof,

or the parties or either party to the dispute may certify

that fact to the Mediation Board, which Board shall,

within ten days from the date of receiving such certificate, select and name the referee to sit with the

division as a member thereof and make an award.

The Mediation Board shall be bound by the same provisions in the appointment of these neutral referees

as are provided elsewhere in this chapter for the

43a

appointment of arbitrators and shall fix and pay the

compensation of such referees.

*

*

*

Second. System, group, or regional boards: establishment by voluntary agreement; special adjustment

boards: establishment, composition, designation of

representatives by Mediation Board, neutral member, compensation, quorum, finality and enforcement

of awards

Nothing in this section shall be construed to prevent any individual carrier, system, or group of carriers

and any class or classes of its or their employees, all

acting through their representatives, selected in accordance with the provisions of this chapter, from mutually agreeing to the establishment of system, group,

or regional boards of adjustment for the purpose of adjusting and deciding disputes of the character specified

in this section. In the event that either party to such a

system, group, or regional board of adjustment is dissatisfied with such arrangement, it may upon ninety

days’ notice to the other party elect to come under the

jurisdiction of the Adjustment Board.

Section 703(a) of the Civil Rights Act of 1964, 42 USC

§ 2000e-2(f ), provides:

(a)

Employer practices

It shall be an unlawful employment practice for an employer –

44a

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees

or applicants for employment in any way which

would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely

affect his status as an employee, because of such

individual’s race, color, religion, sex, or national

origin.

Section 706(f ) of the Civil Rights Act of 1964, 42 USC

§ 2000e-5(f ), provides

(f ) Civil action by Commission, Attorney General, or

person aggrieved; preconditions; procedure; appointment of attorney; payment of fees, costs, or security;

intervention; stay of Federal proceedings; action for appropriate temporary or preliminary relief pending final disposition of charge; jurisdiction and venue of

United States courts; designation of judge to hear and

determine case; assignment of case for hearing; expedition of case; appointment of master

(1) If within thirty days after a charge is filed with the

Commission or within thirty days after expiration of any

period of reference under subsection (c) or (d), the Commission has been unable to secure from the respondent

a conciliation agreement acceptable to the Commission,

the Commission may bring a civil action against any

respondent not a government, governmental agency, or

45a

political subdivision named in the charge. In the case

of a respondent which is a government, governmental

agency, or political subdivision, if the Commission has

been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the

Commission shall take no further action and shall refer the case to the Attorney General who may bring a

civil action against such respondent in the appropriate

United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney

General in a case involving a government, governmental agency, or political subdivision. If a charge filed

with the Commission pursuant to subsection (b) is dismissed by the Commission, or if within one hundred

and eighty days from the filing of such charge or the

expiration of any period of reference under subsection

(c) or (d), whichever is later, the Commission has not

filed a civil action under this section or the Attorney

General has not filed a civil action in a case involving

a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a

party, the Commission, or the Attorney General in a

case involving a government, governmental agency, or

political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such

notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a

member of the Commission, by any person whom the

charge alleges was aggrieved by the alleged unlawful

46a

employment practice. Upon application by the complainant and in such circumstances as the court may

deem just, the court may appoint an attorney for such

complainant and may authorize the commencement

of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its

discretion, permit the Commission, or the Attorney

General in a case involving a government, governmental agency, or political subdivision, to intervene in such

civil action upon certification that the case is of general

public importance. Upon request, the court may, in its

discretion, stay further proceedings for not more than

sixty days pending the termination of State or local

proceedings described in subsection (c) or (d) of this

section or further efforts of the Commission to obtain

voluntary compliance.

(2) Whenever a charge is filed with the Commission

and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is

necessary to carry out the purposes of this Act, the

Commission, or the Attorney General in a case involving a government, governmental agency, or political

subdivision, may bring an action for appropriate temporary or preliminary relief pending final disposition

of such charge. Any temporary restraining order or

other order granting preliminary or temporary relief

shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure. It shall be the duty of a

court having jurisdiction over proceedings under this

section to assign cases for hearing at the earliest

47a

practicable date and to cause such cases to be in every

way expedited.

(3) Each United States district court and each United

States court of a place subject to the jurisdiction of

the United States shall have jurisdiction of actions

brought under this subchapter. Such an action may be

brought in any judicial district in the State in which

the unlawful employment practice is alleged to have

been committed, in the judicial district in which the

employment records relevant to such practice are

maintained and administered, or in the judicial district in which the aggrieved person would have worked

but for the alleged unlawful employment practice, but

if the respondent is not found within any such district,

such an action may be brought within the judicial district in which the respondent has his principal office.

For purposes of sections 1404 and 1406 of Title 28, the

judicial district in which the respondent has his principal office shall in all cases be considered a district in

which the action might have been brought.

(4) It shall be the duty of the chief judge of the district

(or in his absence, the acting chief judge) in which the

case is pending immediately to designate a judge in

such district to hear and determine the case. In the

event that no judge in the district is available to hear

and determine the case, the chief judge of the district,

or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit (or in his

absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and

determine the case.

48a

(5) It shall be the duty of the judge designated pursuant to this subsection to assign the case for hearing at

the earliest practicable date and to cause the case to

be in every way expedited. If such judge has not scheduled the case for trial within one hundred and twenty

days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules

of Civil Procedure.