Respondents Brief — Dawn C. Polk, Petitioner v. Amtrak National Railroad Passenger Corporation, et al.

No. 23-249

IN THE

Supreme Court of the United States

DAWN C. POLK,

Petitioner,

v.

AMTRAK NATIONAL RAILROAD PASSENGER

CORPORATION, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

BRIEF IN OPPOSITION

HASHIM M. MOOPPAN

Counsel of Record

DONALD J. MUNRO

ALEXIS ZHANG

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

hmmooppan@jonesday.com

Counsel for Respondent Amtrak National

Railroad Passenger Corporation

i

QUESTION PRESENTED

Under the Railway Labor Act, disputes that

“grow[] out of … the interpretation or application of”

covered collective-bargaining agreements must be

arbitrated. 45 U.S.C. §§ 151a(5), 153 First(i). The

Act thus preempts litigation of state-law claims, and

precludes litigation of federal-law claims, that fall

within this category of “minor disputes.” Hawaiian

Airlines, Inc. v. Norris, 512 U.S. 246, 252-53 (1994).

Petitioner frames the question presented as whether,

and when, discrimination claims under state or

federal statutes can be minor disputes subject to

preemption or preclusion under the Act. Pet. i.

Properly framed, the question presented is:

Whether the Railway Labor Act preempts or

precludes a claim under an antidiscrimination

statute when the claim depends on interpretation of

a covered collective-bargaining agreement.

ii

RULE 29.6 STATEMENT

The Amtrak National Railroad Passenger

Corporation (Amtrak) is a corporation, authorized

under the Rail Passenger Service Act, 49 U.S.C.

§§ 24101 et seq., that has no parent corporation. Two

non-publicly traded subsidiaries of publicly traded

companies own more than ten percent of Amtrak’s

common stock: American Premier Underwriters, Inc.

(a subsidiary of American Financial Group, Inc.) and

Burlington Northern and Santa Fe, LLC (a

subsidiary of Berkshire Hathaway).

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................................i

RULE 29.6 STATEMENT ......................................... ii

TABLE OF AUTHORITIES....................................... v

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE ................................... 3

A. Legal Background.......................................... 3

B. Procedural History ........................................ 6

REASONS FOR DENYING THE PETITION ......... 10

I.

THE FOURTH CIRCUIT’S DECISION IS

CONSISTENT WITH THE DECISIONS OF EVERY

OTHER CIRCUIT TO CONSIDER THE QUESTION .... 10

A. Seven Circuits Hold Discrimination

Claims Are Preempted Or Precluded

Under Hawaiian Airlines If The Claim

“Depends On” CBA Interpretation ............. 11

B. No Circuit Holds That Discrimination

Claims Can Never Be Preempted Or

Precluded Under Hawaiian Airlines .......... 14

C. No Circuit Holds That Discrimination

Claims Are Preempted Or Precluded

Under Hawaiian Airlines So Long As

They “Involve” CBA Interpretation ............ 19

II. THE FOURTH CIRCUIT’S DECISION IS

CORRECT ............................................................. 21

iv

A. Hawaiian Airlines Adopted A

“Depends On” CBA Interpretation

Standard, And That Standard Applies

To Discrimination Claims ........................... 22

B. The Fourth Circuit Properly Found

That Petitioner’s Title VII Claim

Depends On CBA Interpretation ................ 24

CONCLUSION ......................................................... 26

v

TABLE OF AUTHORITIES

Page(s)

CASES

Adames v. Exec. Airlines, Inc.,

258 F.3d 7 (1st Cir. 2001) .................................... 21

Adams v. American Airlines, Inc.,

No. 98-5118, 2000 WL 14399

(10th Cir. Jan. 10, 2000) ................................ 16, 17

Allis-Chalmers Corp. v. Lueck,

471 U.S. 202 (1985) .......................................... 5, 22

Andrews v. Louisville & Nashville R.R. Co.,

406 U.S. 320 (1972) .......................................... 4, 22

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

480 U.S. 557 (1987) ................................ 4, 5, 22, 23

Avina v. Union Pac. R.R. Co,

72 F.4th 839 (8th Cir. 2023) .................... 12, 13, 20

Bates v. Long Island R.R. Co.,

997 F.2d 1028 (2d Cir. 1993) ............................... 18

Brown v. Illinois Cent. R.R. Co.,

254 F.3d 654 (7th Cir. 2001) ............. 12, 13, 15, 17,

18, 23, 24

Carlson v. CSX Transp., Inc.,

758 F.3d 819 (7th Cir. 2014) ................................ 13

Carmona v. Sw. Airlines Co.,

536 F.3d 344 (5th Cir. 2008) .......................... 12, 13

Consolidated Rail Corp. v. Railway

Labor Execs. Ass’n,

491 U.S. 299 (1989) .......................................... 3, 22

vi

Coppinger v. Metro-North Commuter R.R.,

861 F.2d 33 (2d Cir. 1988) ................................... 18

Crayton v. Long Island R.R.,

No. 05-cv-1721, 2006 WL 3833114

(E.D.N.Y. Dec. 29, 2006) ...................................... 17

Emswiler v. CSX Transp., Inc.,

691 F.3d 782 (6th Cir. 2012) .............. 12, 13, 19, 24

Ertle v. Continental Airlines,

136 F.3d 690 (10th Cir. 1998) .............................. 16

Espinal v. Nw. Airlines,

90 F.3d 1452 (9th Cir. 1996) .......................... 12, 14

Fant v. New Eng. Power Serv. Co.,

239 F.3d 8 (1st Cir. 2001) .................................... 21

Felt v. Atchison, Topeka & Santa Fe Ry. Co.,

60 F.3d 1416 (9th Cir. 1995) ................................ 15

Gay v. Carlson,

60 F.3d 83 (2d Cir. 1995) ..................................... 17

Goss v. Long Island R.R. Co.,

No. 97-7671, 1998 WL 538026

(2d Cir. Mar. 16, 1998) ......................................... 18

Haskew v. Sw. Airlines Co.,

No. 19-732, 2020 WL 2615525

(D.N.M. May 22, 2020) ......................................... 16

Hawaiian Airlines v. Norris,

512 U.S. 246 (1994) ...................... 1–6, 8, 10–24, 26

Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399 (1988) ................ 1, 5, 6, 11, 23, 24, 26

McAlester v. United Airlines, Inc.,

851 F.2d 1249 (10th Cir. 1988) ...................... 16, 17

vii

O’Brien v. Consolidated Rail Corp.,

972 F.2d 1 (1st Cir. 1992) .................................... 20

Parker v. Metro. Transp. Auth.,

97 F. Supp. 2d 437 (S.D.N.Y. 2000) ..................... 17

Quigley v. United Airlines, Inc.,

No. 3:21-cv-538, 2021 WL 1176687

(N.D. Cal. Mar. 29, 2021) ..................................... 15

Ratfield v. Delta Air Lines, Inc.,

No. 22-cv-2212, 2023 WL 5178593

(D. Minn. Aug. 11, 2023) ...................................... 20

Richardson v. BNSF Ry. Co.,

2 F.4th 1063 (8th Cir. 2021) ................................ 20

Saridakis v. United Airlines,

166 F.3d 1272 (9th Cir. 1999) .............................. 15

Stanley v. ExpressJet Airlines, Inc.,

141 S. Ct. 1058 (2021) ...................................... 2, 11

Stanley v. ExpressJet Airlines, Inc.,

808 F. App’x 351 (6th Cir. 2020).......................... 19

Stouffer v. Union R.R. Co.,

85 F.4th 139 (3d Cir. 2023) .................................. 12

Sturge v. Nw. Airlines, Inc.,

658 F.3d 832 (8th Cir. 2011) ................................ 20

Terminal R.R. Ass’n of St. Louis v. Trainmen,

318 U.S. 1 (1943) .................................................... 4

Urena v. Am. Airlines, Inc.,

152 F. App’x 63 (2d Cir. 2005) ............................. 18

Ward v. United Airlines, Inc.,

986 F.3d 1234 (9th Cir. 2021) .............................. 14

viii

Whitehurst v. 1199 SEIU United Healthcare

Workers E.,

928 F.3d 201 (2d Cir. 2019) ................................. 17

STATUTES

29 U.S.C. § 185 ............................................................ 5

45 U.S.C. § 151a .................................................... 3, 22

45 U.S.C. § 152 ............................................................ 3

45 U.S.C. § 153 ...................................................... 3, 22

45 U.S.C. § 155 ............................................................ 3

45 U.S.C. § 156 ............................................................ 3

OTHER AUTHORITIES

Sup. Ct. R. 10............................................................. 24

INTRODUCTION

In Hawaiian Airlines v. Norris, 512 U.S. 246

(1994), this Court clarified the general standard for

when the Railway Labor Act (RLA) preempts

litigation of state claims, and precludes litigation of

federal claims, asserted under other laws. Id. at 25663. Applying Hawaiian Airlines, the Fourth Circuit

here held—in a decision written by Judge Wilkinson

and joined by Judges Agee and Heytens—that the

RLA precluded litigation of a particular Title VII

claim that “require[d] the interpretation” of a

covered collective-bargaining agreement (CBA).

Pet.App. 2a, 13a. That fact-bound holding is both

correct and consistent with the legal conclusion of

every other court of appeals that has decided how

discrimination claims should be analyzed under

Hawaiian Airlines. This Court should deny the

petition for a writ of certiorari.

All seven circuits that have directly addressed the

question under Hawaiian Airlines have held that the

RLA preempts or precludes litigation of a

discrimination claim if the claim requires CBA

interpretation. See Pet.App. 8a (citing cases from

the Fifth, Seventh, and Eighth Circuits); Part I.A,

infra (discussing those cases and others from the

Third, Sixth, and Ninth Circuits). This consensus is

dictated by Hawaiian Airlines itself, which squarely

held that claims under non-RLA laws are preempted

or precluded by the RLA when they are “dependent

on the interpretation of a CBA.” 512 U.S. at 262-63

(citing Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399, 405-06 (1988)). And the Court made

clear that this standard applies across the board—

whether claims are pled under federal or state law;

2

statutory or common law; or antidiscrimination or

other types of law. See id. at 256-63.

The certiorari petition mischaracterizes certain

judicial formulations of the RLA standard as being

materially different, even though this Court has

already held that they are effectively the same.

Petitioner argues that Hawaiian Airlines “set out

three different standards” and that each one has

been chosen by certain circuits. Pet. 2-3. To the

contrary, Hawaiian Airlines itself emphasized that

the various verbal formulations in prior decisions,

properly understood, were “fully consistent” with the

“dependent on the interpretation of a CBA” standard

that it was “adopt[ing].” 512 U.S. at 262-63. There

is thus no genuine circuit split merely because some

decisions

quote

the

alternate

formulations.

Critically, Petitioner does not identify (and Amtrak

is unaware of) any appellate decision that rejected

preemption or preclusion under Hawaiian Airlines

for a discrimination claim found to depend on CBA

interpretation. Indeed, Petitioner primarily relies on

cherry-picked language from a few decisions that

pre-date Hawaiian Airlines and do not reach results

inconsistent with its standard. Nor does she even try

to contest the Fourth Circuit’s clearly correct reading

of Hawaiian Airlines.

Just a few years ago, this Court denied a certiorari

petition similarly alleging illusory circuit splits about

how Hawaiian Airlines applies to Title VII claims.

See Stanley v. ExpressJet Airlines, Inc., 141 S. Ct.

1058 (2021). It should do so again here, because the

Fourth Circuit’s decision breaks no new ground.

3

STATEMENT OF THE CASE

A. Legal Background

The RLA “provide[s] a comprehensive framework

for resolving labor disputes” in the rail and airline

industries. Hawaiian Airlines, 512 U.S. at 248, 252.

To “promote stability in labor-management

relations,” the RLA creates mandatory disputeresolution mechanisms for “two classes of disputes,”

which are described as “major” and “minor” disputes

in this Court’s decisions. Id. at 252-53. Major

disputes relate to “the formation of [CBAs]”

regarding “rates of pay, rules, or working conditions.”

Id. at 252; see 45 U.S.C. § 151a(4). Minor disputes

“grow[] out of grievances or out of the interpretation

or application of [such CBAs].” 45 U.S.C. § 151a(5).

For major disputes, the RLA requires the parties to

exhaust a mandatory “process of bargaining and

mediation.” Consolidated Rail Corp. v. Railway

Labor Execs. Ass’n, 491 U.S. 299, 302 (1989)

(Conrail) (citing 45 U.S.C. §§ 155-156). For minor

disputes, the RLA requires “binding arbitration,”

subject only to “limited” judicial review. Id. at 30304 (citing 45 U.S.C. §§ 152 Sixth, 153 First(i)).

Because minor disputes “must be resolved only

through the RLA mechanisms,” claims falling within

that category of disputes cannot be litigated in court.

Hawaiian Airlines, 512 U.S. at 253. Minor disputes

include any claim in which “the terms of an existing

agreement either establish or refute the presence of

a right to take the disputed action.”

Conrail,

491 U.S. at 305. The paradigmatic minor dispute is

a claim simply asserting or denying “a breach of the

CBA itself.” Hawaiian Airlines, 512 U.S. at 257.

4

This Court has long recognized, though, that certain

claims under other state or federal “cause[s] of

action” may also be minor disputes, and that

litigation of such claims is likewise subject to “preemption” or “preclusion,” respectively. Id. at 259 n.6.

Since the RLA was enacted in 1926, this Court has

decided several cases addressing whether particular

state or federal claims implicate minor disputes

subject to preemption or preclusion. On one hand,

for instance, the Court held that the RLA is “not a

preemption of the field of regulating working

conditions themselves.” Terminal R.R. Ass’n of St.

Louis v. Trainmen, 318 U.S. 1, 7 (1943). And it

likewise held that the mere fact that disputed

conduct “may have been subject to arbitration under

the RLA does not deprive an employee of his

opportunity” to seek “independent” remedies under

statutes like the Federal Employers’ Liability Act.

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

480 U.S. 557, 564-65 (1987). On the other hand, the

Court held that the RLA did preempt an employee’s

wrongful-discharge claim under state tort law that

“depend[ed] on the interpretation of [a CBA].”

Andrews v. Louisville & Nashville R.R. Co., 406 U.S.

320, 324 (1972). Because “[t]he [employee’s] claim,

and [the employer’s] disallowance of it, stem[med]

from differing interpretations of the [CBA],” it was

subject to the RLA’s “mandatory provisions for the

processing of grievances.” Id.

In Hawaiian Airlines—the most recent case in the

line—this Court synthesized its prior decisions on

RLA preemption and preclusion into a single,

uniform standard. The Court held that “the category

of minor disputes … are those that are grounded in

5

the CBA,” 512 U.S. at 256, because they “depend on

the interpretation of the [CBA],” id. at 258 (quoting

Andrews, 406 U.S. at 324). In so holding, the Court

invoked its precedents under Section 301 of the

Labor Management Relations Act (LMRA), 29 U.S.C.

§ 185, as the LMRA caselaw applied a preemption

standard “virtually identical” to the RLA caselaw.

Hawaiian Airlines, 512 U.S. at 260. Under the

LMRA cases, “where the resolution of a state-law

claim depends on an interpretation of [a covered]

CBA, the claim is preempted.” Id. at 261 (citing

Lingle, 486 U.S. at 405-06); accord Allis-Chalmers

Corp. v. Lueck, 471 U.S. 202, 218 (1985). The Court

explained that the “ruling in Lingle that the LMRA

pre-empts state law only if the state-law claim is

dependent on the interpretation of a CBA is fully

consistent with” the RLA precedents—including “the

holding in Buell that the RLA does not pre-empt

‘substantive protection … independent of the [CBA],”

and “the description in Conrail of a minor dispute as

one that can be ‘conclusively resolved’ by reference to

an existing CBA.” Hawaiian Airlines, 512 U.S. at

262-63 (citations omitted).

“Given this convergence in the pre-emption

standards under the two statutes,” the Court

“adopt[ed] the Lingle standard to resolve claims of

RLA pre-emption,” id. at 263, and RLA preclusion,

id. at 259 n.6 (RLA preclusion governed by same

principles as RLA preemption). Accordingly, “if the

resolution of a state-law [or federal-law] claim

depends upon the meaning of a [covered CBA],”

Lingle, 486 U.S. at 405-06, the RLA preempts or

precludes litigation of the claim and the CBA

6

interpretive dispute must be arbitrated, Hawaiian

Airlines, 512 U.S. at 253.

In Hawaiian Airlines itself, the employee’s

particular state-law wrongful-discharge claims did

not depend on CBA interpretation. Rather, they

required only a “purely factual” determination

whether the employee had been discharged for a

retaliatory reason. See id. at 266 (quoting Lingle,

486 U.S. at 407). That dispute over the employer’s

motive could be litigated without raising any

disputed CBA interpretation. See id. at 249-52.

Accordingly, this Court held that the employee’s

claims were not preempted. Id. at 266.

B. Procedural History

1. Petitioner Dawn Polk worked as a conductor

for Respondent, the Amtrak National Railroad

Passenger Corporation.

Pet.App. 2a. She was

represented by the Sheet Metal, Air, Rail and

Transportation Workers Union (SMART) and subject

to a CBA between the union and Amtrak. Id.

In March 2019, Polk was required under Amtrak’s

Drug and Alcohol-Free Workplace Program (DrugFree Program) to take a drug test before returning

from an injury that had caused her to miss several

months of work. Pet.App. 2a-3a. But when she tried

to take the test, she was unable to produce enough

urine for a sufficient sample. Pet.App. 3a. After she

later tested negative for shy bladder syndrome, an

ailment that would have explained the failed drug

test, Amtrak terminated her employment pending an

investigatory hearing. Id.

A few weeks later, Amtrak reinstated Polk after

she signed a settlement agreement “by and between

7

SMART and Amtrak.” Pet.App. 3a, 23a-24a. The

settlement required Polk to see a substance-abuse

specialist, undergo follow-up drug testing over the

next year, and waive her rights under the CBA if she

again violated the Drug-Free Program. Pet.App. 3a.

Polk later complained that Amtrak was continuing

to subject her to drug tests beyond the one-year

period contemplated in the settlement. Pet.App. 4a.

She filed an internal grievance, but it was never

resolved. Pet.App. 4a, 24a. Polk then retired on

disability in May 2021. Pet.App. 24a. The same

month, Polk obtained a right-to-sue letter from the

EEOC after having filed an unsuccessful racediscrimination charge. Id.

2. In July 2021, Polk sued Amtrak and several

Amtrak employees in the District of Maryland.

Pet.App. 22a, 27a. She 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.” Pet.App. 4a; see Pet.App.

22a. As the district court explained, the “gravamen”

of her claims was that Amtrak had “improperly

terminated her employment[] by incorrectly

implementing” its Drug-Free Program, Pet.App. 24a25a, under which any disciplinary action must

comply with an employee’s applicable CBA, Pet.App.

23a n.3. In particular, Polk’s Title VII claim alleged

race discrimination based on Amtrak’s assertedly

having “breach[ed]” the Drug-Free Program’s

requirements. Pet.App. 25a; see Pet.App. 14a-15a

(elaborating that Polk’s theory of discrimination was

that Amtrak “broke its own rules” by denying her a

second chance to complete her drug test and then

testing her excessively).

8

The district court granted Amtrak’s motion to

dismiss Polk’s claims as barred under the RLA.

Pet.App. 33a. It held that the RLA preempted or

precluded all of her claims because they each

“require[d] that the Court interpret the rights within

the CBA to resolve the[m].” Id. In concluding that

Polk’s Title VII “discrimination claim is not

independent of the CBA,” the court reasoned that the

claim depended on CBA interpretation because her

theory of racial discrimination was based on

Amtrak’s alleged breach of the Drug-Free Program’s

requirements

enforced

through

the

CBA’s

disciplinary provisions. Pet.App. 38a-39a.

3. Polk appealed only the dismissal of her Title

VII claim, raising two arguments. Pet.App. 6a.

First, she argued that Title VII claims can “never” be

minor disputes under the RLA because Title VII

provides a cause of action that is “independent” of a

CBA and available “whether or not a [CBA] exists.”

Pet.App. 6a-7a. Second, she argued that “at least her

particular claim is not a minor dispute because it

does not require the ‘interpretation or application’ of

a CBA,” as the claim purportedly depended on

“Amtrak’s discriminatory behavior and not the [CBA]

itself.” Pet.App. 6a, 13a. Rejecting each argument,

the court of appeals affirmed. Pet.App. 19a.

The Fourth Circuit held that categorically

exempting Title VII claims from RLA preclusion

would “run[] headlong” into Hawaiian Airlines and

caselaw across the circuits. Pet.App. 7a-8a. “The

lesson from these cases,” the court explained, is that

claims under Title VII and other federal statutes

“can at times be” minor disputes—i.e., when they

raise “disagreements over the ‘interpretation or

9

application’ of a CBA”—“even though they can [also]

arise in the absence of a CBA.” Id. The court

emphasized that the RLA “opted for the centralized

arbitration of minor disputes” in order to “get[]

courts out of the business of interpreting CBAs”—a

“rationale” that “has little to do with whether” the

CBA interpretive dispute “arises from a contractual

claim or some other cause of action under state or

federal law.” Pet.App. 9a.

The Fourth Circuit further held that, in particular,

“Polk’s Title VII claim requires the interpretation of

a CBA.” Pet.App. 13a. The court reasoned that CBA

interpretive disputes played a “dispositive role” in

her race-discrimination claim because “her theory of

differential treatment would require a court to

interpret CBA provisions covering employee

discipline and reinstatement.” Pet.App. 14a. More

specifically, Polk’s claim rested on her allegations

that “Amtrak broke its own rules” under the DrugFree Program in disciplining and testing her,

Pet.App. 15a, and the court deemed those rules to be

part of the CBA because “the CBA incorporates the

Drug-Free Program” and provides the disciplinary

“remedy” for a violation, Pet.App. 17a-19a. The court

thus concluded that because “Polk relies on her

interpretation of these provisions as a stand-in for

allegations about Amtrak’s factual treatment of her

similarly situated colleagues” who were not black,

“establish[ing] the element of differential treatment”

through such allegations would “necessitate the

‘interpretation or application’ of a CBA.” Pet.App.

14a-15a (quoting Hawaiian Airlines, 512 U.S. at

252); accord Pet.App. 15a-17a. Polk’s Title VII claim

was therefore precluded by the RLA. Pet.App. 19a.

10

REASONS FOR DENYING THE PETITION

I.

THE FOURTH CIRCUIT’S DECISION IS

CONSISTENT WITH THE DECISIONS OF EVERY

OTHER CIRCUIT TO CONSIDER THE QUESTION

The certiorari petition erroneously asserts that the

“divergent standards set out in Hawaiian Airlines”

have created a three-way circuit split on whether

and when discrimination claims are preempted or

precluded by the RLA. Pet. 14. On Petitioner’s

account, three circuits purportedly hold never; two

circuits purportedly hold yes but only where the CBA

would conclusively resolve the claim; and four

circuits purportedly hold yes so long as the claim

would merely involve CBA interpretation. Pet. 14-15.

In actuality, every circuit to decide how Hawaiian

Airlines applies to discrimination claims has reached

the same conclusion as the Fourth Circuit. Such

claims, like all other claims, are preempted or

precluded by the RLA “only if” they are “dependent

on the interpretation of a CBA”—the LMRA

standard from Lingle that Hawaiian Airlines

“adopt[ed]” as “fully consistent” with the RLA

standard and prior RLA precedents. 512 U.S. at 26263 (emphasis added). Although some opinions use

different verbal formulations to describe this

standard, there is no decision by any court of appeals

that construes Hawaiian Airlines to permit a

substantively different standard for discrimination

claims—more specifically, a decision rejecting RLA

preemption or preclusion under Hawaiian Airlines

even though the discrimination claim asserted did

depend on CBA interpretation; or a decision finding

RLA preemption or preclusion under Hawaiian

11

Airlines even though the discrimination claim

asserted did not depend on CBA interpretation.

Indeed, three years ago, another petition likewise

tried to manufacture circuit splits about how

Hawaiian Airlines applies to Title VII claims—citing

many of the same cases—and this Court denied

certiorari without even calling for a response. See

Stanley, 141 S. Ct. at 1058. As the consensus among

the circuits remains unbroken, further review is

unwarranted here.

A. Seven Circuits Hold Discrimination

Claims Are Preempted Or Precluded

Under Hawaiian Airlines If The Claim

“Depends On” CBA Interpretation

As noted above, the Fourth Circuit held in this

case that “Polk’s Title VII claim” is precluded under

the RLA because it “requires the interpretation of a

CBA.”

Pet.App. 13a.

Petitioner thus errs in

suggesting that the decision found preclusion merely

because her claim “involves” CBA interpretation.

Pet. 24-25. The court instead emphasized “[t]he

dispositive role of the CBA” in light of the particular

“substance of Polk’s Title VII claim.” Pet.App. 14a.

In other words, the specific discrimination claim she

asserted was “dependent on the interpretation of a

CBA.” Hawaiian Airlines, 512 U.S. at 262 (citing

Lingle, 486 U.S. at 405-06).

Six other circuits have directly addressed how

Hawaiian Airlines applies to discrimination claims.

Like the Fourth Circuit, each one has applied a

“depends on” standard, either using that precise

phrase or a semantic equivalent.

12

Petitioner admits as much for the Fifth and

Seventh Circuits. As she explains (Pet. 19-23), those

courts hold that the RLA preempts or precludes a

discrimination claim when CBA interpretation would

“conclusively resolve[]” the claim. Brown v. Illinois

Cent. R.R. Co., 254 F.3d 654, 658 (7th Cir. 2001);

Carmona v. Sw. Airlines Co., 536 F.3d 344, 348

(5th Cir. 2008). Hawaiian Airlines expressly stated

that the “conclusively resolved” language from

Conrail is “fully consistent” with the “dependent on”

standard from Lingle that it was adopting. 512 U.S.

at 262-63. The Fifth and Seventh Circuits have thus

also used the latter formulation or another synonym.

Brown, 254 F.3d at 668 (standard satisfied where

plaintiff’s affirmative claim was “substantially

dependent upon an analysis of the terms of a

[CBA]”); Carmona, 536 F.3d at 349-50 (standard not

satisfied where “interpretation of the CBA itself” was

not “required to resolve [the plaintiff’s] claims”).

Moreover, the Third, Sixth, Eighth, and Ninth

Circuits have applied Hawaiian Airlines to

discrimination claims in the same way. See Stouffer

v. Union R.R. Co., 85 F.4th 139, 144 (3d Cir. 2023)

(whether claim “depends for its resolution on the

interpretation of a CBA”); Emswiler v. CSX Transp.,

Inc., 691 F.3d 782, 792 (6th Cir. 2012) (whether

claim would “depend[] on,” or “require,” CBA

interpretation); Avina v. Union Pac. R.R. Co,

72 F.4th 839, 843 (8th Cir. 2023) (whether claim

would “require the interpretation of some specific

provision of the [CBA]” (cleaned up)), pet. for cert.

filed, No. 23-275 (U.S. Sept. 19, 2023); Espinal v.

Nw. Airlines, 90 F.3d 1452, 1456 (9th Cir. 1996)

(whether claim “is dependent on the interpretation of

13

a [CBA]”).

Petitioner’s contrary

mistaken. See infra at 14-15, 19-20. 1

assertion

is

Of course, under the “depends on” standard,

whether litigation of a discrimination claim is barred

by the RLA turns on the particular “manner in which

[a plaintiff] styles [the] claim.” Emswiler, 691 F.3d

at 792-93. Where, as in this case, the plaintiff’s

affirmative theory of discriminatory treatment

requires establishing a disputed CBA interpretation,

the claim cannot proceed in court. Pet.App. 13a-17a;

Avina, 72 F.4th at 843-45; Emswiler, 691 F.3d at

792-93; Brown, 254 F.3d at 659-61, 667-68. By

contrast, the claim may proceed in cases where

“provisions of the CBA are relevant to, but not

dispositive of, the resolution of [the] claims” because

“there is no disagreement about how to interpret

the[] provisions,” Carmona, 536 F.3d at 349, or

where the defendant “assert[s] certain CBA-based

defenses to what is essentially a non-CBA-based

claim,” Carlson v. CSX Transp., Inc., 758 F.3d 819,

833 (7th Cir. 2014) (quoting Brown, 254 F.3d at 668).

In sum, the courts of appeals agree that the

standard under Hawaiian Airlines is whether or not

the plaintiff’s claim itself raises a “purely factual

question” about discriminatory treatment that “can[]

be decided without interpretation of the CBA.”

Emswiler, 691 F.3d at 793. Although the answer will

vary based on the specific theory underlying a

discrimination claim, there is consensus among the

circuits that this is the controlling question.

1 In addition, the First Circuit applied the same standard to a

discrimination claim pre-Hawaiian Airlines and has since

recognized its general applicability. See infra at 20-21.

14

B. No Circuit Holds That Discrimination

Claims Can Never Be Preempted Or

Precluded Under Hawaiian Airlines

To invent a circuit split, Petitioner argues that the

Second, Ninth, and Tenth Circuits have deemed RLA

preemption and preclusion categorically unavailable

in the antidiscrimination context. Pet. 15-19. Not

so. Petitioner overreads the Ninth Circuit decision it

cites, which applied the “depends on” standard,

consistent with other decisions from that court. And

while Petitioner cherry-picks overbroad language

from decisions in the Second and Tenth Circuits

before Hawaiian Airlines, the results in those cases

were not inconsistent with the “depends on”

standard, and neither court has squarely addressed

the question in a published decision after Hawaiian

Airlines. The asserted circuit split is thus illusory.

1. For starters, the Ninth Circuit does apply the

“depends on” standard to discrimination claims. As

noted above, the court in Espinal rejected RLA

preemption because “[the plaintiff’s] disability

discrimination claims [were] not dependent on an

interpretation of the CBA” under the theory of

discrimination

advanced

there—not

because

discrimination claims are per se immune from RLA

preemption. 90 F.3d at 1458; see id. at 1456-58.

More generally, under the circuit’s “two-step test” for

RLA preemption, even when a claim does not “seek[]

purely to vindicate a right or duty created by the

CBA itself,” litigation of the claim is preempted

insofar as it would still “require[] interpretation of a

CBA.” Ward v. United Airlines, Inc., 986 F.3d 1234,

1244 (9th Cir. 2021) (cleaned up). RLA preemption

and preclusion thus do apply when a discrimination

15

claim depends on resolving “an active dispute over

the meaning of contract terms,” id.—as district

courts in the circuit have held. See, e.g., Quigley v.

United Airlines, Inc., No. 3:21-cv-538, 2021 WL

1176687, at *6 (N.D. Cal. Mar. 29, 2021) (“[A]s with

any claim, a discrimination claim can be preempted

to the extent that it requires interpretation of a CBA

provision.”).

Failing to mention any of this, Petitioner tries to

portray a single Ninth Circuit case as adopting a

contrary rule. Pet. 17-18. But while that decision

observed that statutory antidiscrimination rights are

generally “independent of a CBA” and thus not

categorically barred by the RLA, it did not further

hold that such claims are categorically immune from

RLA preemption or preclusion. Saridakis v. United

Airlines, 166 F.3d 1272, 1276 (9th Cir. 1999).

Rather, focusing on the particular facts presented,

the court concluded that the plaintiff’s affirmative

theory of discrimination could “be resolved without

interpreting the [CBA] itself,” regardless of whether

the defendant tried “to introduce and rely upon the

CBA … as a part of its defense.” Id. at 1277; accord

Felt v. Atchison, Topeka & Santa Fe Ry. Co., 60 F.3d

1416, 1419-21 (9th Cir. 1995). This type of casespecific analysis is irreconcilable with the per se rule

that Petitioner suggests, and it is consistent with the

“depends on” standard applied by other circuits.

See, e.g., Brown, 254 F.3d at 667-68 & n.12 (factually

distinguishing Saridakis and acknowledging the

legal line between CBA-based claims and CBA-based

defenses).

2. For its part, the Tenth Circuit has no

published decision on how Hawaiian Airlines applies

16

to discrimination claims in particular. In general,

though, the court recognizes that the key question

under Hawaiian Airlines “is whether resolution of [a]

claim requires interpretation or application of a

CBA.” Ertle v. Continental Airlines, 136 F.3d 690,

693 (10th Cir. 1998). And district courts in the

circuit have applied that standard to find

discrimination claims barred by the RLA. See, e.g.,

Haskew v. Sw. Airlines Co., No. 19-732, 2020 WL

2615525, at *7-8 (D.N.M. May 22, 2020).

Petitioner’s invocation of an antidiscrimination

case pre-dating Hawaiian Airlines (Pet. 18) thus

does not present a ripe circuit conflict. Moreover,

while the court in that case broadly emphasized that

the claim arose under a federal statute, McAlester v.

United Airlines, Inc., 851 F.2d 1249, 1253-56 (10th

Cir. 1988), it also specifically found that the plaintiff

did “not allege that his claim of racial discrimination

[was] based upon violation of the [CBA],” id. at 1253.

Likewise, the unpublished decision post-dating

Hawaiian Airlines that Petitioner cites (Pet. 19)

relied in part on the absence of such an allegation.

“[W]ithout deciding which [was] most important or

dispositive” to its rejection of RLA preclusion, the

court noted both that “a cause of action under Title

VII emanates from a source independent of the CBA”

and that it was “not necessary” for the plaintiff there

to “establish[] a breach of the CBA” to “prov[e] the

elements of her Title VII claim”—especially since

“the evidence relating to the CBA” went “to

disprov[ing] the defendant’s justification rather than

to prov[ing] an element of the plaintiff’s case.”

Adams v. American Airlines, Inc., No. 98-5118, 2000

WL 14399, at *7 (10th Cir. Jan. 10, 2000).

17

In short, neither McAlester nor Adams provides

any basis to conclude that the Tenth Circuit has

departed from its sister circuits. Those cases are

consistent with the consensus position that the

“general rule that the RLA will not bar a plaintiff

from bringing a claim under an independent federal

statute … no longer applies if the federal claim

asserted by the plaintiff depends for its resolution on

the interpretation of a CBA.” Brown, 254 F.3d at

667-68 (emphasis omitted).

3. Finally, the same goes for the Second Circuit.

Although that court lacks a published decision on

how Hawaiian Airlines applies to discrimination

claims, it too recognizes that the general standard

under Hawaiian Airlines is whether a “claim

depends on an interpretation of the [CBA].” Gay v.

Carlson, 60 F.3d 83, 87 (2d Cir. 1995). It also has

applied that standard to find discrimination claims

barred in the parallel LMRA context. Whitehurst v.

1199 SEIU United Healthcare Workers E., 928 F.3d

201, 207-10 (2d Cir. 2019) (per curiam). Likewise,

district courts in the circuit have applied that

standard to find discrimination claims barred by the

RLA. See, e.g., Crayton v. Long Island R.R., No. 05cv-1721, 2006 WL 3833114, at *4-5 (E.D.N.Y. Dec.

29, 2006); Parker v. Metro. Transp. Auth., 97 F.

Supp. 2d 437, 446-47 (S.D.N.Y. 2000).

Petitioner thus does not present a ripe circuit split

by citing two published decisions that pre-date

Hawaiian Airlines and two unpublished decisions

that do not mention the case. See Pet. 15-17. All the

more so because three of those cases did not even

involve discrimination claims and thus did not have

occasion to decide whether such claims are barred if

18

they depend on CBA interpretation. See Coppinger

v. Metro-North Commuter R.R., 861 F.2d 33, 35-38

(2d Cir. 1988); Goss v. Long Island R.R. Co., No. 977671, 1998 WL 538026, at *3 (2d Cir. Mar. 16, 1998);

Urena v. Am. Airlines, Inc., 152 F. App’x 63, 65 (2d

Cir. 2005). As for the fourth case, while it primarily

emphasized that the discrimination claims at issue

arose under a federal statute independent of the

RLA, it never decided whether those claims actually

“require[d] interpretation of the applicable [CBA]” or

merely “implicate[d]” the CBA in a lesser manner.

Bates v. Long Island R.R. Co., 997 F.2d 1028, 103435 (2d Cir. 1993). Since that is a critical distinction

under the Hawaiian Airlines standard, see, e.g.,

Brown, 254 F.3d at 668, it is possible that the result

in this pre-Hawaiian Airlines case is consistent with

how other circuits would decide the case under their

post-Hawaiian Airlines precedent. And regardless of

any uncertainty about the precise facts and holding

of Bates, the Second Circuit clearly would now hold

that a discrimination claim that does depend on CBA

interpretation is barred under Hawaiian Airlines—

consistent with its parallel approach under the

LMRA and with decisions of district courts in the

circuit under the RLA. Accordingly, the outdated

Bates decision is far too thin a reed to support a

circuit conflict warranting this Court’s review.

19

C. No Circuit Holds That Discrimination

Claims Are Preempted Or Precluded

Under Hawaiian Airlines So Long As

They “Involve” CBA Interpretation

Petitioner is also wrong that the First, Fourth,

Sixth, and Eighth Circuits deem it sufficient for RLA

preemption or preclusion that a discrimination claim

merely “involves” some level of CBA interpretation.

Pet. 2, 23-29. Of course, this case would not be an

appropriate vehicle to resolve any circuit split

between an “involves” standard and the “depends on”

standard—as the Fourth Circuit dismissed Polk’s

claim even under the standard more favorable for

her, supra at 11—but the asserted split is illusory

regardless. The petition mischaracterizes decisions

from the First, Sixth, and Eighth Circuits in the

same way it did the Fourth Circuit’s decision here.

Most obviously, as Petitioner’s block-quote from

the Sixth Circuit’s Emswiler decision makes clear

(Pet. 23-24), that court held that a discrimination

claim must “require,” or “depend[] on,” CBA

interpretation to be barred under Hawaiian Airlines.

691 F.3d at 792. Far from deeming the mere

involvement of a CBA to suffice, the court concluded

that the claim there “cannot be decided without

interpretation of the CBA” to resolve the “competing

positions” upon which the plaintiff’s affirmative

theory of discrimination turned. Id. at 793; see

Stanley v. ExpressJet Airlines, Inc., 808 F. App’x 351,

355 (6th Cir. 2020) (citing Emswiler as a case

applying the “conclusively resolve” standard).

Likewise, as Petitioner’s block-quote from a

Minnesota district-court opinion confirms (Pet. 27-

20

28), the Eighth Circuit’s most recent decisions “have

seized upon th[e] language [in Hawaiian Airlines]—

regarding whether a claim is dependent upon the

interpretation of a CBA—to find claims preempted

where analyzing the elements of the plaintiff’s claim

would require interpreting” the CBA. Ratfield v.

Delta Air Lines, Inc., No. 22-cv-2212, 2023 WL

5178593, at *10 (D. Minn. Aug. 11, 2023) (second

emphasis added). That the claim might involve some

amount of CBA interpretation is not sufficient to bar

it.

See Avina, 72 F.4th at 843-45 (finding

discrimination claim precluded because it “require[d]

the interpretation of some specific provision of the

[CBA]” (cleaned up)); cf. Richardson v. BNSF Ry.

Co., 2 F.4th 1063, 1067-68 (8th Cir. 2021) (finding a

contract claim preempted, but a tort claim not

preempted, because only the former “cannot be

resolved without interpreting the [CBA]”); Sturge v.

Nw. Airlines, Inc., 658 F.3d 832, 837-39 (8th Cir.

2011) (finding ERISA claim not preempted because it

did not “depend[] on an interpretation of [the] CBA”

given that the application of the implicated CBA

provisions was “not disputed”).

Similarly, Petitioner’s own quotation again shows

(Pet. 26) that the First Circuit’s pre-Hawaiian

Airlines decision in O’Brien v. Consolidated Rail

Corp., 972 F.2d 1 (1st Cir. 1992), held that a

discrimination claim was preempted only because it

“require[d] the interpretation of a [CBA].” Id. at 4-5

(quoting case applying the Lingle standard). While

that court has not specifically considered a

discrimination claim under Hawaiian Airlines, it has

recognized more generally that the controlling RLA

standard is whether the claim “depend[s] upon,” or

21

“hinges upon,” a CBA interpretive dispute. Adames

v. Exec. Airlines, Inc., 258 F.3d 7, 11 (1st Cir. 2001);

see Fant v. New Eng. Power Serv. Co., 239 F.3d 8,

15-16 (1st Cir. 2001) (applying that standard to

discrimination claim under LMRA).

In sum, there is no circuit split on the question

presented. Every court of appeals to have decided

the question—seven in all—agrees that litigating a

discrimination claim is preempted or precluded by

the RLA under Hawaiian Airlines if, but only if, the

plaintiff’s affirmative theory of discrimination

depends on a disputed interpretation of a CBA. This

Court need not review that consensus position. 2

II. THE FOURTH

CORRECT

CIRCUIT’S

DECISION

IS

This Court’s review is especially unwarranted

because the circuit consensus is clearly correct.

Indeed, the certiorari petition never even tries to

argue that the Fourth Circuit misinterpreted or

misapplied Hawaiian Airlines, and it could not

plausibly have done so. The “depends on” CBA

interpretation standard that this Court expressly

adopted for RLA preemption and preclusion fully

applies to discrimination claims. And the Fourth

Circuit properly found that Petitioner’s Title VII

claim depends on disputed CBA interpretations.

2 Petitioner further asserts (Pet. 15) that there is a circuit split

over the subsidiary procedural question of how courts should

dispose of a discrimination claim that is barred by the RLA, but

this case is not a proper vehicle to resolve that question. It was

not pressed below, Pet.App. 6a, and Polk identifies no reason

why it matters that her claim was dismissed, rather than

stayed, pending arbitration of the CBA interpretive disputes

underlying her discrimination claim.

22

A. Hawaiian

Airlines

Adopted

A

“Depends On” CBA Interpretation

Standard, And That Standard Applies

To Discrimination Claims

The RLA seeks “to provide for the prompt and

orderly settlement of all disputes growing out of …

the interpretation or application of [covered CBAs].”

45 U.S.C. § 151a(5) (emphasis added). Congress

directed that such interpretive disputes are “subject

to compulsory and binding arbitration,” Conrail,

491 U.S. at 303; see 45 U.S.C. § 153 First(i), deeming

it “essential to keep these so-called ‘minor’ disputes

… out of the courts,” Buell, 480 U.S. at 562 n.9; see

Hawaiian Airlines, 512 U.S. at 252-53.

As the Fourth Circuit explained, this “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.” Pet.App. 9a. This

Court has thus long held that litigation of noncontract claims can be barred by the RLA in some

circumstances. Hawaiian Airlines, 512 U.S. at 25758 (citing Andrews, 406 U.S. at 324); cf. id. at 260

(same under LMRA, citing Lueck, 471 U.S. at 218).

In Hawaiian Airlines, the Court surveyed its prior

precedents and synthesized a definitive standard for

RLA preemption and preclusion. It viewed the RLA

cases as establishing the rule that “the category of

minor disputes … are those that are grounded in the

CBA.” 512 U.S. at 256; see id. at 258 (explaining

that the wrongful-termination claim in Andrews

“depend[ed] on the interpretation of the [CBA]”).

And it “adopt[ed]” the “virtually identical” standard

that had been established in the LMRA context—

23

namely, that preemption occurs “only if a state-law

claim is dependent on the interpretation of a CBA.”

Id. at 260, 262-63; see id. at 259 n.6 (equating

principles governing preemption of state-law claims

and preclusion of federal-law claims).

Moreover, the Court expressly emphasized that

Lingle’s “dependent on” standard was “fully

consistent” with “the holding in Buell that the RLA

does not pre-empt ‘substantive protection …

independent of the [CBA],” and with “the description

in Conrail of a minor dispute as one that can be

‘conclusively resolved’ by reference to an existing

CBA.” Id. at 262-63 (citations omitted). As Lingle

put the point, “the sense of ‘independent’ that

matters” is that the “claim does not require

construing the [CBA].” 486 U.S. at 407. Thus, “as

long as the … claim can be resolved without

interpreting the agreement itself,” litigation is not

barred. Hawaiian Airlines, 512 U.S. at 262 (quoting

Lingle, 486 U.S. at 410). But where the claim’s

“resolution … depends on an interpretation of the

CBA,” it cannot proceed in court. Id. at 261.

Accordingly, the Fourth Circuit and its sister

circuits are clearly correct that the RLA bars

litigation of discrimination claims, no less than any

other claims, where the plaintiff’s affirmative theory

of discrimination would require a court to resolve a

minor dispute involving the proper interpretation of

a CBA. Of course, “as a general rule,” discrimination

claims will not be barred because they usually can

“be adjudicated under non-CBA standards.” Brown,

254 F.3d at 667-68; cf. Hawaiian Airlines, 512 U.S.

at 249-52, 266 (plaintiff’s wrongful-discharge claims

required only a “purely factual” determination

24

whether the employee had been discharged for a

retaliatory reason, as the employee did not raise any

disputed CBA interpretation as the basis for his

claims). But where the particular “manner in which

[the plaintiff] styles [the] claim” affirmatively

“requires” resolution of a CBA interpretive dispute,

Emswiler, 691 F.3d at 792-93, the “rule no longer

applies” and the claim is barred because it “depends

for its resolution on the interpretation of a CBA,”

Brown, 254 F.3d at 668.

Indeed, Lingle itself implicitly acknowledged that

discrimination claims could sometimes be barred.

The Court there cited “the antidiscrimination laws”

to “illustrate” the point that a statutory claim is “not

dependent upon the terms of [a] private contract”

based on “the mere fact” that the CBA also provides

“contractual protection” against unlawful conduct.

486 U.S. at 412-13. It reasoned that, “[i]n the typical

case,” a court “could resolve either a discriminatory

or retaliatory discharge claim without interpreting

the [analogous] language of a [CBA].” Id. at 413.

This Court was thus careful to recognize that there

may be atypical cases where a discrimination claim

does depend on resolving a CBA interpretive dispute.

And so the circuit-court consensus that the RLA bars

such claims follows directly from the adoption of the

Lingle standard in Hawaiian Airlines.

B. The Fourth Circuit Properly Found

That Petitioner’s Title VII Claim

Depends On CBA Interpretation

Lastly, while any “misapplication of a properly

stated rule of law” would not warrant review in any

event, Sup. Ct. R. 10, the Fourth Circuit was right to

25

find that “Polk’s Title VII claim requires the

interpretation of [the] CBA,” Pet.App. 13a.

As the decision below recognized, “[t]he thrust of

Polk’s Title VII claim is that Amtrak deviated from

its policies when dealing with her.” Id. In fact, Polk

“d[id] 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.’”

Pet.App. 14a (quoting CA.JA 14).

Instead, she alleged that Amtrak “broke its own

rules” by denying her a second chance to complete

her drug test and then testing her excessively.

Pet.App. 15a. She used those alleged rule breaches

“as a stand-in for allegations about Amtrak’s factual

treatment of her similarly situated colleagues,” in

order to satisfy “the element of differential treatment

in [her] Title VII claim.” Pet.App. 14a-15a.

As a result, Polk’s Title VII claim was effectively

pleaded as a CBA dispute. The rules at issue were

part of the CBA because “the CBA incorporates the

Drug-Free Program” and provides the disciplinary

“remedy” for a violation. Pet.App. 17a-19a. So

“evaluating [Polk’s] theory of differential treatment

would require a court to interpret CBA provisions

covering employee discipline and reinstatement.”

Pet.App. 14a; see Pet.App. 15a-17a (detailing the

relevant interpretive disputes). In fact, while Polk’s

briefing below contested whether the relevant

Amtrak rules were part of her CBA, she did not deny

that her theory of discrimination depended on the

interpretive dispute over those rules.

See CA

Opening Br. 10-12; CA Reply Br. 4-7.

26

In sum, the Fourth Circuit was correct about “[t]he

dispositive role of the CBA” given “the substance of

Polk’s Title VII claim.” Pet.App. 14a. As her “claim

is dependent on the interpretation of [the] CBA,” the

RLA precludes her from litigating it in court.

Hawaiian Airlines, 512 U.S. at 262 (citing Lingle,

486 U.S. at 405-06).

CONCLUSION

The petition for a writ of certiorari should be

denied.

December 1, 2023

Respectfully submitted,

HASHIM M. MOOPPAN

Counsel of Record

DONALD J. MUNRO

ALEXIS ZHANG

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

hmmooppan@jonesday.com

Counsel for Respondent Amtrak National

Railroad Passenger Corporation