Reply Brief — Nancy Avina, Petitioner v. Union Pacific Railroad

No. 23-275

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------NANCY AVINA,

Petitioner,

v.

UNION PACIFIC RAILROAD,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

---------------------------------♦--------------------------------REPLY BRIEF FOR PETITIONER

---------------------------------♦--------------------------------ERIC SCHNAPPER

Counsel of Record

University of Washington

School of Law

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

schnapp@uw.edu

DENNIS E. EGAN

COOPER S. MACH

THE POPHAM LAW FIRM

712 Broadway, Suite 100

Kansas City, MO 64105

(816) 221-2288

MARTIN M. MEYERS

THE MEYERS LAW FIRM, LC

4435 Main St., Suite 503

Kansas City, MO 64111

(816) 444-8500

Counsel for Petitioner

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

Argument .............................................................

I.

II.

1

There Is A Multi-Faceted Conflict Regarding The Nature of Preemption Under The

Railway Labor Act .....................................

1

This Case Is An Excellent Vehicle for Resolving The Question Presented ................

9

Conclusion............................................................ 12

ii

TABLE OF AUTHORITIES

Page

CASES

Adams v. American Airlines, Inc., 2000 WL

14399 (10th Cir. Jan. 10, 2000) .................................6

Adams v. N.J. Transit Rail Operations, 2000 WL

224108 (S.D.N.Y. Feb. 28, 2000) ................................4

Alaska Airlines Inc. v. Schurke, 898 F.3d 904 (9th

Cir. 2018) ...................................................................5

Bates v. Long Island R.R. Co., 997 F.2d 1028 (2d

Cir. 1993) ............................................................... 3, 4

Columbia Export Terminal, LLC v. International

Longshore and Warehouse Union, 23 F.4th 836

(9th Cir. 2022)............................................................5

Emswiler v. CSX Transp. Inc., 691 F.3d 782 (6th

Cir. 2012) ............................................................... 7, 8

Fry v. Airline Pilots Ass’n, Int’l, 88 F.3d 831 (10th

Cir. 1996) ...................................................................6

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

(1994) ............................................................ 1, 4, 8-10

Lingle v. Norge Division of Magic Chef, Inc., 486

U.S. 399 (1988) ..........................................................8

McAlester v. United Air Lines, Inc., 851 F.2d

1249 (10th Cir. 1988) ......................................... 3, 4, 6

Miller v. Southwest Airlines Co., 923 F.Supp.2d

1206 (N.D. Cal. 2013) ................................................5

Mosqueda v. Burlington Santa Fe Ry., 981

F.Supp. 1403 (D. Kan. 1997) .....................................6

iii

TABLE OF AUTHORITIES – Continued

Page

Polk v. Amtrak National Railroad Passenger

Corporation, No. 23-249 ...................................... 1, 12

Powell v. Union Pacific R. Co., 864 F.Supp.2d 949

(E.D. Cal. 2017) .........................................................5

Prokopiou v. The Long Island Railroad Co., 2007

WL 1098696 (S.D.N.Y. Apr. 9, 2007) .........................4

Saridakis v. United Airlines 166 F.3d 1272

(1999) ..................................................................... 3-5

Shim v. United Air Lines, Inc., 2012 WL 6742529

(D. Hawai’i Dec. 13, 2012) .........................................5

Tice v. American Airlines, Inc., 288 F.3d 313 (7th

Cir. 2002) ......................................................... 4, 7, 10

United Airlines, Inc., 48 LA 727 (BNA) (1967) ............1

United States v. Vonn, 535 U.S. 55 (2022) ..................11

Urena v. American Airlines, Inc., 152 Fed. Appx.

63 (2d Cir. 2005) ........................................................4

STATUTES AND RULES

42 U.S.C. § 1981 ............................................................6

Americans With Disabilities Act ..................................5

Civil Rights Act .............................................................2

Railway Labor Act ........................................................1

Supreme Court Rule 15.5 .............................................1

iv

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Brief for the United States as Amicus Curiae,

Hawaiian Airlines v. Norris (petition stage

amicus brief) ..............................................................9

Brief of the Equal Employment Opportuity

Commission as Amicus Curiae, Tice v. American Airlines, 288 F.3d 313 (2002) .............................4

Brief of the Equal Employment Opportunity

Commission as Amicus Curiae in Support of

Plaintiff-Appellant, Brown v. Illinois Central

Railroad Co., 254 F.3d 654 (7th Cir. 2001) ........... 2, 3

1

ARGUMENT

I.

THERE IS A MULTI-FACETED CONFLICT

REGARDING THE NATURE OF PREEMPTION UNDER THE RAILWAY LABOR ACT1

1. Respondent asserts that the question presented is whether “petitioner’s claims must be resolved

through arbitration.” Br. Opp. i. But the petition specifically asserted that the arbitral mechanism (the National Railroad Adjustment Board) has no jurisdiction

to hear claims such as petitioner’s seeking to enforce

antidiscrimination statutes (Pet. 4, 35), and respondent tellingly does not dispute that description of the

limits on the Board’s jurisdiction.

The EEOC has correctly explained that the Board

could not adjudicate federal or state civil rights claims.

Under the RLA, the Adjustment Board resolves “minor disputes” between carriers and

their employees with reference solely to the

existing CBA between the parties, and is thus

authorized to determine only contractual

rights and obligations. Hawaiian Airlines [v.

Norris], 512 U.S. [246,] 254-55 [1994)] (citing

NRAB Third Div. Award No. 19790 (1973)

(“this Board lacks jurisdiction to enforce

rights created by State or Federal Statutes

... ”); United Airlines, Inc., 48 LA 727, 733

1

A related question is presented in Polk v. Amtrak National

Railroad Passenger Corporation, No. 23-249. To assist the Court

in considering the petitions together, counsel for petitioner in Polk

will file her reply by December 12, and will waive the 14 day rule

in Supreme Court Rule 15.5.

2

(BNA) (1967) (“The jurisdiction of this system

Board does not extend to interpreting and applying the Civil Rights Act.”)) ... Arbitration of

“minor disputes” under the RLA is thus incapable of vindicating ... federal statutory

rights....

Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiff-Appellant, Brown v. Illinois Central Railroad Co., 254 F.3d

654 (7th Cir. 2001),15 (“EEOC Brown Amicus Brief ”).

Thus, the issue presented by the petition regarding federal and state antidiscrimination claims such as

this is not whether they should be enforced in an arbitral forum (the Board) rather than in court, but

whether such civil rights can be enforced at all.

2. Respondent insists that all circuits hold that a

claim asserting a right created by federal or state law

(such as an antidiscrimination statute) is always a minor dispute under the RLA, and thus preempted or

precluded, if the claim involves a subsidiary issue that

would be affected by the interpretation of a CBA. But

the lower courts and the EEOC disagree with that description of the state of the law in the courts of appeals.

The petition identifies six lower court decisions

which conclude there is a conflict regarding what constitutes a minor dispute under the RLA, and quotes

each of those opinions. Pet. 29-31. The brief in opposition did not dispute the assertion that those lower

court opinions conclude that there is indeed such a conflict, and did not question the accuracy or fairness of

3

the quotations set out in the petition. Respondent does

not criticize or discuss the reasoning of those six cases.

Indeed, respondent never mentions this portion of the

petition at all. A lower court consensus that there is

indeed a circuit split does not disappear simply because a respondent refuses to address that consensus.

Respondent asserts that “the circuits, including

the Eighth Circuit, now unanimously apply” the following rule: “a claim is a minor dispute if it required

interpretation of a collective bargaining agreement.”

Br. Opp. 17. But the EEOC expressly insists that is not

even the prevailing law, least of all the “unanimous”

view of the courts of appeals. “The determination

whether a claim arising under a federal statute is precluded by the RLA ... does not turn on whether the federal claim required interpretation of a CBA....” EEOC

Brown Amicus Brief, 12 (emphasis added); see id. (“the

determination whether a claim arising under a federal

statute is precluded under the RLA does not turn on

whether the federal claim requires interpretation of a

CBA....”) (emphasis added). According to the EEOC,

the courts of appeals “have uniformly held that the

RLA does not preclude claims arising under federal

civil rights laws ... ” Id. 15. And the EEOC relies for its

description of federal appellate decisions on the same

cases relied on in the petition. Id. at 15-16 (quoting

Saridakis v. United Airlines 166 F.3d 1272, 1277

(1999); Bates v. Long Island R.R. Co., 997 F.2d 1028

1034-35 (2d Cir. 1993), and McAlester v. United States,

851 F.2d 1249, 1254-56 (10th Cir. 1988)). In another

amicus brief, the EEOC again pointed out that “federal

4

appellate courts have ... held that the RLA does not

preclude individuals from litigating claims arising

from federal employment discrimination laws, even

where resolution of the statutory claim required consideration of CBA provisions.” Brief of the Equal Employment Opportunity Commission as Amicus Curiae,

Tice v. American Airlines, 288 F.3d 313 (2002), (quoting, inter alia, Saridakis, Bates and McAlester).

3. Respondent claims that in Bates v. Long Island

Railroad Co., 997 F.3d 1028 (2d Cir. 1993), the Second

Circuit did not decide whether the need to interpret a

CBA would result in preemption in a discrimination

case, ducking that issue because it was not clear to the

court whether such interpretation was required in that

case. Br. Opp. 11. But decisions in the Second Circuit

even subsequent to Hawaiian Airlines treat Bates as

establishing a per se rule that civil rights claims are

not subject to RLA preemption.2 As the quoted portion

of Bates makes clear, what actually occurred in Bates

is the opposite of respondent’s account; the Second Circuit held that a statutory discrimination claim is not

preempted, regardless of whether CBA interpretation

is required, and thus did not need to resolve whether

2

Urena v. American Airlines, Inc., 152 Fed. Appx. 63, 65 (2d

Cir. 2005) (“statutory civil rights claims” not preempted, citing

Bates); Prokopiou v. The Long Island Railroad Co., 2007 WL

1098696, at *4 (S.D.N.Y. Apr. 9, 2007) (“statutory civil rights

claims” not preempted, quoting Bates); Adams v. N.J. Transit Rail

Operations, 2000 WL 224108, at *9 (S.D.N.Y. Feb. 28, 2000) (“federal statutory claims” are not preempted, citing Bates).

5

interpretation was involved in that case. 997 F.2d at

1034, quoted at Pet. 20.

Saridakis v. United Airlines, 166 F.3d 1272, 1277

(9th Cir. 1999), did not, as respondent contends, hold

regarding “the multitude of state and federal claims

brought by the plaintiff ” that whether a dispute is minor “turns on where it ‘can be resolved without interpreting the [CBA].’ ” Br. Opp. 12. Under Saridakis, a

need for interpreting a CBA clearly is relevant only to

“state law claims” which are treated “unlike” federal

statutory claims. 166 F.3d at 1277. Saridakis holds that

rights created by federal statutes are never preempted

by the RLA. 166 F.3d at 1276-77. Decisions in the

Ninth Circuit consistently construe Saridakis to establish such a per se rule for federal statutory claims.3 The

decision in Alaska Airlines Inc. v. Schurke, 898 F.3d

904, 921 (9th Cir. 2018) (en banc), on which respondent

relies (Br. Opp. 12), concerns preemption of state law

claims. And in the Ninth Circuit under Alaska Airlines,

a claim is only preempted with regard to the particular

dispute about the meaning of a CBA. In the Ninth Circuit, once that issue has been resolved under the RLA,

3

Powell v. Union Pacific R. Co., 864 F.Supp.2d 949, 958 (E.D.

Cal. 2017) (“federal statutory rights”; “federal labor laws”); Miller

v. Southwest Airlines Co., 923 F.Supp.2d 1206, 1211 (N.D. Cal.

2013) (Title VII rights); Shim v. United Air Lines, Inc., 2012 WL

6742529, at n.6 (D. Hawai’i Dec. 13, 2012) (Americans With Disabilities Act); Columbia Export Terminal, LLC v. International

Longshore and Warehouse Union, 23 F.4th 836, 848 (9th Cir. 2022)

(Americans with Disabilities Act).

6

unlike in the Eighth Circuit, the state law claim can

proceed in court. 898 F.3d at 922, 922 n.14.

The Tenth Circuit decision in McAlester v. United

Air Lines, Inc., 851 F.2d 1249, 1254 (10th Cir. 1988),

announces a per se rule whose rationale would apply

regardless of whether there is a dispute about the

meaning of a CBA. “Because a plaintiff ’s § 1981 action

sounds in tort and is based upon a federal statutory

rather than contractual duty, McAlester’s claim cannot

be a ‘minor dispute’ subject to the exclusivity provisions of the RLA.” 851 F.2d at 1255. McAlester has been

applied in a Title VII case that did involve a claimed

dispute about a CBA. Mosqueda v. Burlington Santa Fe

Ry., 981 F.Supp. 1403 (D. Kan. 1997). Respondent invokes a passage in Fry v. Airline Pilots Ass’n, Int’l, 88

F.3d 831, 836 (10th Cir. 1996), which refers to whether

a claim is “inextricably intertwined” with the terms of

a CBA. Br. Opp. 13. But the remainder of that paragraph in Fry makes clear that this standard is met only

when “the wrong complained of actually arises in some

manner from a breach of the defendant’s obligations

under a collective bargaining agreement.” Id. Respondent cites a reference in Adams v. American Airlines, Inc., 2000 WL 14399 (10th Cir. Jan. 10, 2000) to

whether a claim is “inextricably intertwined” with the

meaning of a CBA. Br. Opp. 13. But the Tenth Circuit’s

explication of that phrase relies “[f ]irst” on whether

the plaintiff ’s Title VII claim “emanates from a source

independent of the CBA.” Id. The other factors deemed

relevant by the Tenth Circuit in Adams did not include

a need to interpret a CBA.

7

4. The petition describes the circuit conflict regarding what legal consequence follows under the RLA

if (as often occurs) the litigation of a claim arising from

a federal statutory right involves a subsidiary issue

that would be affected by the interpretation of a CBA.

Pet. 2-3, 19, 23-24, 25. The Seventh Circuit holds that

in such a situation the court should retain jurisdiction

of the case, stay proceedings, and permit the parties to

seek resolution before the Board of any subsidiary dispute about the meaning of the CBA in question. Pet.

23-24 (citing Tice v. American Airlines, Inc., 288 F.3d

313, 318-19 (7th Cir. 2002)).4 In the Sixth Circuit, the

presence of such a subsidiary dispute does not bar

judicial resolution of the underlying statutory claim,

but merely requires the plaintiff to seek possible relief from the Board before pursuing a judicial claim.

Emswiler v. CSX Transp. Inc., 691 F.3d 782, 792 (6th

Cir. 2012); see Pet. 25 (quoting exhaustion requirement). In the Eighth Circuit, on the other hand, the

presence of such a subsidiary issue is an absolute bar

to any judicial consideration of the statutory claim involved. Respondent does not deny that the Seventh

Circuit established a different standard in Tice, or that

the Sixth Circuit applies a different standard under

Emswiler. The brief in opposition simply ignores this

conflict, never refers at all to the Seventh Circuit decision in Tice, and never refers to the exhaustion

4

288 F.3d at 318 (“The suit must be stayed until the dispute

over the agreement is resolved by the only body authorized to resolve such disputes, namely an arbitral panel. It follows that if

the resolution of the dispute does not resolve the issues in the suit,

the suit can resume.”).

8

requirement in Emswiler. That circuit conflict did not

disappear simply because respondent refused to address it.

5. If this case had been filed in the Second, Ninth

or Tenth Circuit, because plaintiff seeks to enforce

rights created by federal statutes, it would have been

decided on the merits. If the case had been filed in the

Fifth or Seventh Circuits, it would have been decided

on the merits unless respondent could show that some

interpretation of the CBA would conclusively establish

whether respondent acted with a discriminatory motive when it denied plaintiff the disputed promotions,

an unlikely prospect. In the Seventh Circuit, even if

respondent made that showing, the case would have

been stayed (not dismissed) while petitioner sought interpretation of the CBA from the Board. In the Sixth

Circuit the plaintiff could obtain resolution of the merits of this case if she first attempted to pursue her statutory claims before the Board. The Eighth Circuit, on

the other hand, holds that this case can never be adjudicated in a state or federal court. And this Court held

in Hawaiian Airlines, as the EEOC has since reaffirmed, that the Board does not have jurisdiction to adjudicate such statutory claims. This is not merely a

circuit conflict; it is circuit chaos.

6. Respondent suggests that the government in

Hawaiian Airlines urged the Court to apply in RLA

cases the interpretation standard (utilized in LMRA

cases under Lingle v. Norge Division of Magic Chef,

Inc., 486 U.S. 399 (1988)). Br. Opp. 17. But what the

United States actually said, in the (petition stage)

brief relied on by respondent, was that the Lingle

9

interpretation standard used in LMRA cases is different than the legal standard the Court used in RLA

cases.5

7. Respondent concedes there is a circuit conflict

regarding whether RLA preemption is jurisdictional.

Br. Opp. 21. That issue is squarely within the terms of

the question presented, which includes “in what way”

RLA preemption would “limit ... claims under antidiscrimination statutes....” Pet. i. Preemption that

strips federal and state courts of jurisdiction over

certain claims obviously limits those claims in a manner different than preemption which is merely a defense to the claims. The circuit conflict on this

important issue, and the argument in favor of review

by this Court, were fully developed in the petition. Pet.

29, 32-33, 36-37.

II.

THIS CASE IS AN EXCELLENT VEHICLE

FOR RESOLVING THE QUESTION PRESENTED

This case is an ideal vehicle for resolving the

standard governing what constitutes a minor dispute

under the RLA. Specifically, it is the perfect vehicle for

determining what the lower courts are to do in the

common situation in which a plaintiff seeks to enforce

a statutory right (invoking the right-creation standard

in Hawaiian Airlines, which bars preemption), but the

case involves a subsidiary issue that could be affected

5

Brief for the United States as Amicus Curiae, Hawaiian

Airlines v. Norris (petition stage amicus brief ), 15; see id. at 9.

10

by the interpretation of a CBA (triggering the interpretation standard, also in Hawaiian Airlines, which requires preemption). The petitioner in this case seeks to

enforce statutory rights: the ADEA and section 1981.

This case illustrates how a CBA-interpretation issue can be relevant to, but yet not dispositive of, a statutory claim. The controlling factual issue in this case

is whether the respondent denied petitioner several

promotions because of her race and age. Respondent

claimed that it had denied her those promotions because it was the company’s practice to consider only

workers who uploaded their resumes. Petitioner denied that was respondent’s practice, noting that the position announcements expressly advised workers

interested in the positions to “EMAIL OR FAX RESUME.” Pet. 8, 9. Company officials did not claim to

have based that asserted practice on the CBA (Pet.

App. 63a), but counsel for respondent sought to buttress respondent’s proffered justification by asserting

that the CBA should be construed to require uploading. Rejection of respondent’s proposed interpretation

of the CBA would not compel a finding of a discriminatory motive, and acceptance of that interpretation

would not preclude such a factual finding.

Respondent objects that petitioner did not urge

the courts below to hold that RLA preemption is nonjurisdictional. Br. Opp. 7, 9, 19, 21-22. But petitioner

could not contest that issue in the courts below, because it was already settled law in the Eighth Circuit

that RLA preemption is jurisdictional. Pet. 13. It would

have been pointless, if not vexatious, for petitioner to

11

have urged the district judge or the appellate panel to

disregard the controlling Eighth Circuit decisions on

this precise issue. Thus “[t]his question is rightly before [the Court] even though [petitioner] did not urge

the Court of Appeals to [hold that RLA preemption is

not jurisdictional].... [T]his position was squarely

barred by Circuit precedent....” United States v. Vonn,

535 U.S. 55, 59 n.1 (2022).

Respondent objects that this is a poor vehicle for

deciding anything because the petition presents several distinct grounds for overturning the Eighth Circuit decision. Br. Opp. 22. But this Court routinely

resolves cases that present two or more arguments. A

holding by this Court that RLA preemption is non-jurisdictional would not preclude the Court from reaching and addressing the standard defining a minor

dispute.

Finally, respondent argues that it would be a mistake to grant review in this case because respondent

assertedly will “almost certainly” prevail on remand

when the lower courts reach merits. Br. Opp. 23. But in

deciding whether to grant review regarding a procedural or jurisdictional issue, this Court does not consider which party is likely to ultimately prevail on the

merits. The purpose of review by this Court is not to

award victory to the party most likely to prevail on remand on other issues, but to resolve questions of law

that are, as in the instant case, important to a wide

range of current and future litigants. Because the railroad and airline industries to which the RLA applies

are heavily unionized, whether the RLA precludes

12

workers in cases such as this from enforcing federal

and state statutory rights in any forum is a matter of

great importance to millions of workers in those industries.

---------------------------------♦---------------------------------

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the judgment and opinion of the Court

of Appeals for the Eighth Circuit. The Court should

also grant review in Polk v. Amtrak National Railroad

Passenger Corporation, No. 23-249, and should set the

cases for argument in tandem.

Respectfully submitted,

ERIC SCHNAPPER

Counsel of Record

University of Washington

School of Law

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

schnapp@uw.edu

DENNIS E. EGAN

COOPER S. MACH

THE POPHAM LAW FIRM

712 Broadway, Suite 100

Kansa City, MO 64105

(816) 221-2288

13

MARTIN M. MEYERS

THE MEYERS LAW FIRM, LC

4435 Main St., Suite 503

Kansas City, MO 64111

(816) 444-8500

Counsel for Petitioner