# Petition for Writ of Certiorari — English v. General Elec. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0851%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 496 U.S. 72 ## Text 0, | i> Supreme Court, U.S, 89-152 '\Y FILED SUL 27 198s No. JOSEPH F. SPANIOn. Je CLERK IN THE Supreme Court of the United States OCTOBER TERM, 1989 VERA M. ENGLISH, Petitioner, Vv. GENERAL ELECTRIC COMPANY, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Of Counsel: ' ARTHUR M. SCHILLER M. TRAVIS PAYNE Attorney at Law EDELSTEIN, PAYNE & NELSON 21 DuPont Circle, N.W. P.O. Box 12607 Suite 401 Raleigh, N.C. 27605 Washington, D.C. 20036 (919) 828-1456 (202) 857-5658 Counsel for Petitioner EEE TE WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 ‘Som. QUESTION PRESENTED FOR REVIEW Should an employee’s well-recognized and well-founded state tort action that does not in any way address issues of nuclear regulation or safety, »e nreempted by Section 210 of the Energy Reorganization Act, 42 USC Section 5851, the so-called nuclear “whistleblowers” statute? LIST OF PARTIES The parties to the proceedings below are the petitioner Vera English ani the respondent General Electric Com- pany. (i) TABLE OF CONTENTS QUESTION PRESENTED FOR REVIEW ................ LIST OF PARTIES .000----.cccccssses-- a TABLE OF AUTHORITIES .0000..00.00-00-0cc--cossssssssssssees-o REPORT OF OPINIONS .20--0-----cc-cccssssssssvsssveesseeeeseeeeeee a scneeeeeeeee STATUTES INVOLVED 00o0oo.----ccccccccesessccceccessoneseee STATEMENT OF THE CASE o.0...0...--cccccceccsssssssseseeeeee REASONS WHY THE WRIT SHOULD BE a aeliaeaicitbeneanercencgueecenenmrennccemeeeessen A. The Decision Below Conflicts With The Respect For The Rights Of States As Reflected In Farmer v. United Brotherhood of Carpenters, 430 U.S. 290 (1977), Lingle v. Norge Division of Magic Chef, 486 U.S. ——- (1988), and San Diego Building Trades Council v. Garmon, 359 EEE Ae B. The Decision Below Conflicts With The Holding Of This Court In California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987) .......... C. The Decision Below Conflicts With The Holding Of This Court In Decanas v. Bica, 424 U.S. 351 LESS ELIS D. The Decision Below Conflicts With This Court’s Decisions In Pacific Gas and Electric Co. v. Energy Resources Commission, 461 U.S. 190 (1983), and Silkwood v. Kerr McGee Corp., 464 a ncotunemnaennncenens E. There Is Conflict Among The Courts Concerning The Preemption Of State Claims By Federal A A ar = = 10 10 14 17 18 20 iv TABLE OF AUTHORITIES SUPREME COURT CASES Page Automobile Workers v. Russell, 356 U.S. 634 (19GB) ..2......--<2-0--aseccecens-nceesennscseensnssneswsccssmnecseneeneenes 13 Belknap v. Hale, 463 U.S. 491 (1983).............----- 13 California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987) ei alittle 14, 15, 16 Decanas v. Bica, 424 U.S. 351 (1976) ..........-......--. 17, 18 Farmer v. United Brotherhood of Carpenters, 430 U.S. 290 (1977) ....... Ea aoe Sei ne sewer ort t 10, 11, 12 Fort Halifax Packing Company v. Coyne, 482 U.S. — (1987), 96 L.Ed.2d 1 ...........---22------2-se----00+- 13 Lingle v. Norge Division of Magic Chef, 486 US. (1988), 100 L.Ed.2d 410 .....................-..-- 10, 13, 15 Linn v. Plant Guard Workers, 383 U.S. 53 (1966) .. 13 Pacific Gas and Electric Co. v. Energy Resources Commission, 461 U.S. 190 (1981) .............---.--- 18, 19, 20 San Diego Building Trades Council v. Garmon, 859 U.S. 276 (1959) ...........----..--ccccsoe---eeeceoesseccssees 10, 13 Silkwood v. Kerr McGee Corp., 464 U.S. 238 | ee 18, 19, 20 | OTHER FEDERAL CASES Baldracchi v. Pratt & Whitney, 814 F.2d 102 (2nd CB, ROTI acineceeececcervenscccnsincncrrasesectntasecntnnssenncassonesoess 22 English v. Whitfield, 858 F.2d 957 (4th Cir. 1988) .. 8 Keehr v. Consolidated Freightways, 825 F.2d 133 ‘OO Se | adel ieaiddiatass 22 Local No. 57 ». Bechtel Power Corp., 834 F.2d 884 (10th Cir. 1987) .............-..-.20--.--c-ceccessneseveccenensesenss 22 Merchant v. American Steamship Co., 860 F.2d 204 (6th Cir. 1988) .............--..-------cseeseeseeeseereerenees 22 Miller v. AT&T Network Systems, 850 F.2d 543 (9th Cir. 1988) .......... sec ai i cllietaciiaieapititldeladaiitadahinaad 22 Norris v. Lumberman’s Mutual, 687 F.Supp. 699 (Mass. 1988) .................--.-.--0--0--se-c-ecsecceseeessnseneenenees 21 Paige v. Henry J. Kaiser Co., 826 F.2d 857 (9th CB, TITY oaceccaaesnnececcesecceessccesceceernacsctnsosonsnstonssnamienes 22 Smolarek v. Chrysler Corp., 858 F.2d 1165 (6th Che, BID cneencecneccenecccsoccnsecsesssstliasanscncsnsecttsotacnseatenses 22 Vv TABLE OF AUTHORITIES—Continued , Page now v. Bechtel Construction, 647 F.S aan... joni 21 Stokes v. Bechtel North American Power Corp., 614 F.Supp. 782 (N.C. Cal. 1985)... ts«QY OTHER CASES Chrisman v. Phillips Industries, Inc., 242 K pjibl Pita 140 (1988)... scanned nce 21 rews v. Provident Finance Co., 271 N.C. 6 84. 157 S.E.2d 881 (1967) — wt 10 Dison ». Stuart 85 N.C. App. 338, 354 S.E.2d 757 A tel ere wei teiie 11,18 Kirby v. Jules Chain Stores Co ; : rp., 210 N.C. 88 S.E. 625 (1936)... he 10 tanback v. Stanback, 297 N.C. 181. 254 SE od 611 (1979)... Sep Sieve 10 Wheeler v. Caterpillar Tractor Co., 108 ‘TlL.2d 502. ™ Tll.2d 502, a 372 (1985), cert. den., 475 U.S. 1122 Woodruff v. Miller, 64 N.C. App. 364, 307 SE2d ” SPU sci _.. 11,20 STATUTES | Section 210 of the Energy Reorganizati ganization A 42 USC Section 5851 0. ” passim N.C.Gen.Stat. Section 95-2520... 16 N.C.Gen.Stat. Section 95-130 ( SaaS: 16 N.C.Gen.Stat. Section 96-15.1&15.2 ss 16 N.C.Gen.Stat. Section97-6.1....si(‘z;é;~S:S 15 N.C.Gen.Stat.Chapter168A... i (‘ié;COC~™; 16 N.C.Gen.Stat. Section 143-4222. —<—~—sSS RULES Federal! Rules of Civil Procedure i a 9 i “és TT OTHER AUTHORITIES Kohn, Protecting Ex:vironinental - e and N Whistleblowers (1985)... CL vs 20 IN THE Supreme Court of the United States OCTOBER TERM, 1989 No. VERA M. ENGLISH, - Petitioner, GENERAL ELECTRIC COMPANY, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT REPORT OF OPINIONS The Order of the District Court is reported at 683 F.Supp. 1006 (E.D.N.C. 1988). (Appendix, p. 6a) The Opinion of the Court of Appeals is reported at 871 F.2d 22 (4th Cir. 1989). (Appendix, p. la) JURISDICTION The Opinion of the Court of Appeals was decided and entered on April 3, 1989. A Petition for Rehearing and Suggestion for Rehearing en banc was denied and entered on April 28, 1989. (Appendix, p. 4a) Jurisdiction of this Honorable Court is invoked pursuant to 28 USC Section 1254(1). STATUTE INVOLVED Section 210 of the Energy Reorganization Act, 42 U.S.C. § 5851. Employee protection (a) Discrimination against employee No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or appli- 2 cant, may discharge any employee or otherwise dis- criminate against any employee with respect to his compensation, terms, conditions, or privileges of em- ployment because the employee (or any person acting pursuant to a request of the employee) — (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C.A. § 2011 et seq.], or a proceeding for the adminis- tration or enforcement of any requirement im- under this chapter or the Atomic Energy Act of 1954, as amended; (2) testified or is about to testify in any such proceeding or; (3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a pro- veeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C.A. § 2011 et seq. ]. (b) Complaint, filing and notification (1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may, within thirty days after such violation occurs, file (or have any person file on his behalf) a com- plaint with the Secretary of Labor (hereinafter in this subsection referred to as the “Secretary”) al- leging such discharge or discrimination. Upon re- ceipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint and the Commission. (2)(A) Upon receipt of a complaint filed under paragraph (1), the Secretary shall conduct an in- vestigation of the violation alleged in the complaint. Within thirty days of the receipt of such complaint, 3 the Secretary shall complete such investigati shall notify in writing the complaint ( yr = son acting in his behalf) and the person alleged to have committed such violation of ihe results of the Investigation conducted pursuant to this subpara- graph. Within ninety days of the receipt of such complaint the Secretary shall, unless the proceedin on the complaint is terminated by the Secreta * the basis of a settlement entered into by the peatesy and the person alleged to have committed such vio- lation, issue an order either providing the relief pre- scribed by subparagraph (B) or denying the com- age An order of the Secretary shall be made on : e record after notice and opportunity for public earing. The Secretary may not enter into a settle- ment terminating a proceeding on a complaint with- out the participation and consent of the complainant. (B) If, in response to a complain paragraph (1), the Secretary poems wal ro —s lation of subsection (a) of this section has occurred the Secretary shall order the person who committed such violation to (i) take affirmative action to abate the violation, and (ii) reinstate the complainant to his pre position together with the compensation (in- cluding back pay), terms, conditions, and privileges of his employment, and the Secretary may order such person to proviae compensatory damages to the com- plainant. If an order is issued under this paragraph the Secretary, at the request of the complainant shall assess against the person against whom the order is issued a sum equal to the aggregate amount of all costs and expenses (including attorneys’ and expert witness fees) reasonably incurred, as determined by the Secretary, by the complainant for, or in connec- tion with, the bringing of the : the order was issued. “ compat upon which (c) Review (1) Any person adversely affected i sel} or aggrieved b an order issued under subsection (b) of this peor 4 may obtain review of the order in the United States court of appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred. The petition for review must be filed with- in sixty days from the issuance of the Secretary’s order. Review shali conform to chapter 7 of Title 5. The commencement of proceedings under this sub- paragraph shall not, unless ordered by the court, op- erate as a stay of the Secretary’s order. (2) An order of the Secretary with respect to which review could have been obtained under para- graph (1) shall not be subject to judicial review in any criminal or other civil proceeding. (d) Jurisdiction Whenever a person has failed to comply with an order issued under subsection (b) (2) of this section, the Secretary may file a civil action in the United State: district court for the district in which the vio- lation was found to occur to enforce such order. In actions brought under this subsection, the district courts shall have jurisdiction to grant all appropri- ate relief including, but nut limited to, injunctive re- lief, compensatory, and exemplary damages. (e) Commencement of action (1) Any person on whose behalf an order was is- sued under paragraph (2) of subsection (b) of this section may commence a civil action against the per- son to whom such order was issued to require com- pliance with such order. The appropriate United States district court shall have jurisdiction, without regard to the amount in controversy or the citizen- ship of the parties, to enforce such order. (2) The court, in issuing any final order under this subsection, may award costs of litigation (in- cluding reasonable attorney and expert witness fees) to any party whenever the court determines such award is appropriate. (f) Enforcement Any nondiscretionary duty imposed by this section shall be enforceable in a mandamus proceeding brought under section 1361 of Title 28. (g) Deliberate violations Subsection (a) of this section shall not apply with respect to any employee who, acting without direction from his or her employer (or the employer’s agent), deliberately causes a violation of any requirement of this chapter or of the Atomic Energy Act of 1954, as amended [42 U.S.C.A. § 2011 et seq.]. STATEMENT OF THE CASE Vera English was born in the state of Maine in 1925. She grew up in that state, received training in the medi- cal field, was certified as a licensed practical nurse, and worked there in the medical field for a number of years. She also received training ir clinical medical laboratory technique and was certified as a medical technologist. In 1960 Ms. English moved with her husband to Wil- mington, North Carolina. From 1960 to 1972 she worked in a variety of laboratory positions in hospital and medi. eal research facilities, as well as in the area of quality control for an aerospace firm making components for the Apollo project. During this period she received additional training and education in the field of chemistry and ia . oratory procedures. In November, 1972, she was hired by respondent General Electric to work in the Chemet Lab at its Wilmington Nuclear Fuels Manufacturing fa- cility, performing chemical analyses to assure the quality of the materials in nuclear fuel rods. Ms. English took her duties at General Electric very seriously. The radioactive materials that she was work- ing with not only presented a substantial safety hazard to her and her co-workers, but also presented substantial potential hazards to the general public once it was incor- 6 porated into nuclear fuel rods. Being ever conscious and concerned about these hazards, Ms. English took seriously her legal obligations to report potential safety and quality problems to management and government authorities. Prior to 1984 Ms. English had reported a number of safety and quality concerns both to respondent’s manage- ment personnel as well as to government officials. Those complaints had been largely ignored and Ms. English had been disparaged and derided as paranoid for making such complaints. (Complaint paragraph 9) In February, 1984, Ms. English again reported safety hazards and illegal practices to representatives of the Nuclear Regulatory Commission as well as to management personnel. (Com- plaint paragraphs 10 & 12) Following these complaints Ms. English contined to observe lax safety procedures and substantial radiation contamination which other workers had repeatedly left about her workplace. (Complaint para- graphs 12, 14 & 15) As her complaints about worker contamination had been largely ignored by management, on March 10, 1984, Ms. English decided that the only way she could convince management personnel of the legiti- macy of her concerns was to not clean up some of the con- tamination that other employees had left at her work sta- tion so that she could show it to her supervisor. As her supervisor would not be on duty with her until March 12, 1984, she marked off a portion of the contamination with red tape and left it, cleaning up the remainder of the contamination she had found. (Complaint paragraphs 16 & 17) As a result of Ms. English’s complaints and her persistence, many of the safety concerns were ultimately addressed and contamination in the Chemet Lab was re- moved. From the time that Ms. English marked the contamina- tion on March 10, until she was able to show it to her supervisor on March 12th, several other shifts worked in the Chemet Lab. None of the employees on any of the 7 other shifts cleaned up the contamination or brought it to the attention of their supervisors. (Complaint paragraph 17) In spite of the fact that employees on at least two other shifts had observed the contamination and failed to clean it up, no action of any kind was undertaken by re- spondent with respect to any workers on those shifts. (Complaint paragraph 27) On March 15, 1984, Ms. English was falsely charged by respondent with five violations of company or NRC re- quirements. (Complaint paragraph 19) At that time she was removed from the Chemet Lab under guard as if she were a criminal. (Complaint paragraph 24(a)) After an internal company appeal, all charges against Ms English were dropped except the claim that she failed to clean up radiation contamination. (Complaint paragraph 21) On the strength of that one allegation, and without taking disciplinary action against other workers who had failed to clean up the same contamination, Ms. English was permanantly removed from her quality-control posi- tion in the Chemet Lab, barred from any controlled area, and given a menial “make-work” position in another build- ing on site. (Complaint paragraph 21) The respondent further advised Ms. English that she would have to bid for any suitable position in the plant that became available in a non-controlled area, and that if she did not obtain such a position within 90 days, she would be discharged. As no such position became avail- able within the time limits set by respondent, Ms. English was discharged on July 30, 1984. (Complaint paragraphs 25 & 26) During a period of at least three and a half months leading up to her discharge, Ms. English was never given any meaningful work, subjected to require- ments and “rules” that were not applied to other em- ployees, placed under constant surveillance by manage- ment, and completely isolated from her fellow employees to the point of not even being allowed to eat her lunch in 8 the compary lunch room with fellow workers. (Complaint paragraphs 5, 21(c), 24(b), 24(c) & 26) As a esult of respondent’s treatment of Plaintiff be- fore her discharge, Ms. English suffered and continues to suffer from a severely depressed and emotional condition. (Complaint paragraphs 36, 37 & 38) Although she has made diligent efforts to find other comp ble employ- ment, her efforts have been unsuccessfi ‘ausing her substantial financial difficulties. (Compla..c paragraph 35) This action was filed on March 13, 1987, in the United States District Court for the Eastern District of North Carolina. It is a diversity action in which Ms. English asserted tort claims under North Carolina law for wrong- ful discharge and intentional infliction of emotional dis- tress. Ms. English also asserted claims for punitive dam- ages associated with each of the two tort claims.’ Prior to the filing of an answer, Ms. English amended her complaint to slightly modify paragraphs 7 and 42. 1The complainé in this case was filed following an administra- tive proceeding in which an Administrative Law Judge issued a decision favorable to Ms. English on August 1, 1985. A copy of that decision is included in the Appendix to this Petition. The Secretary of Labor subsequently reversed that decision on the grounds that Ms. English’s complaint was untimely. That deci- sion was appealed to the Fourth Circiut, which affirmed the ruling of “untimeliness”, but remanded the case for a ruling by the Secre- tary on the question of whether Ms. English might be entitled to establish a claim on the theory of continuing violation. English v. Whitfield, 858 F.2d 957 (4th Cir. 1988). That issue is currently before the Secretary and has been briefed by the parties. Essentially concurrent with the DOL proceeding, Ms. English filed a petition with the Nuclear Regulatory Commission under 10 CFR Part 2.206, asking that penalties and damages be assessed against General Electric. The NRC has recently issued an order in that matter, citing General Electric for penalties, but rejecting any compensation for Ms. English. That decision is also contained in the Appendix to this Petition. 9 On or about May 5, 1987, without filing an answer, respondent moved to dismiss the Complaint pursuant to Federal Rules 12(b) (1) and 12(b) (6). On May 7, 1987, respondent similarly moved to dismiss the Amended Com- plaint. On February 12, 1988, the Honorable F.T. Dupree, Jr., entered an Order ruling on respondent’s motion. In that Order Judge Dupree concluded that Ms. English had not stated a good cause of action for wrongful discharge, and granted petitioner’s motion pursuant to Rule 12(b) (6) with respect to that claim (Appendix, p. 25a) ; how- ever, Judge Dupree concluded that Ms. Fnuglish had stated a good cause of action for intentional infliction of emotional distress, and denied respondent’s Rule 12(b) (6) motion with respect to that claim. (Appendix, p. 27a) Judge Dupree also analyzed the impact of Section 210 of the Energy Reorganization Act, 42 USC Section 5851, and concluded that that provision was an exclusive remedy for Ms. English, preempting all of her state tort claims. He therefore granted respondent’s motion pursu- ant to Rule 12(b) (1) with respect to both tort claims. (Appendix, p. 29a) From this Order and Judgment Ms. English filed a timely notice of appeal to the Fourth Circuit Court of Appeals, pursuing an appeal solely with respect to her claim for intentiona! infliction of emotional distress; re- spondent cross-appealed. On April 3, 1989, the Fourth Circuit issued its decision in this matter. It rejected respondent’s cross-appeal and affirmed the ruling that Ms. English had stated a good cause of action for intentional infliction of emotional dis- tress. However, the Court also affirmed the ruling that Ms. English’s state tort claim was preempted by the “whistleblower” provisions of the Energy Reorganization Act, 42 USC Section 5851. 10 On April 14, 1989, Ms. English filed a timely Petition for Re-Hearing with the Fourth Circuit. By order of April 28, 1989, that Petition was denied. (Appendix, pp. 4a-5a) REASONS WHY THE WRIT SHOULD BE GRANTED A. The Decision Below Conflicts With The Respect For The Rights Of States As Reflected In Farmer v. United Brotherhood of Carpenters, 430 U.S. 290. (1977), Lingle v. Norge Division of Magic Chef, 486 U.S. —— (1988) and San Diego Building Trades Council v. Garmon, 359 U.S. 276 (1959). A cause of action for intentional infliction of emotional distress was first expressly recognized by North Carolina courts in Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611, 623 (1979), a case involving the breach of a separa- tion agreement. While Stanback may have been the first case that express!y recognized the claim, the court dis- cussed in detail earlier cases that clearly were grounded in such a theory (254 S.E.2d at 622). In Kirby v. Jules Chain Stores Corp., 210 N.C. 808, 188 S.E. 625 (1936), the defendant’s collection agent verbally abused plaintiff in a “profane and malicious manner” on at most two oc- casions. These actions were found sufficient to create a claim. Similarly, in Crews v. Provident Finance Co., 271 N.C. 684, 157 S.E.2d 381 (1967), the plaintiff alleged that she was verbally abused on one occasion by a collec- tion agent, and she became angry and upset as a result of this single instance of abuse. Again, these facts were sufficient to support her claims.* Thus claims like those 2 At least part of these holdings seem to rely on the particular condition or susceptibility of the plaintiff. In Kirby the plaintiff was seven months pregnant at the time she was verbally abused. In Crews the plaintiff was apparently susceptible to angina at- tacks and did suffer such an attack as a result of the abuse. The condition or “susceptibility” of Ms. English supports her claim that Defendant’s actions towards her were highly outrageous. In the hearing before the Administrative Law Judge, General Elec- tric contended “. . . that Ms. English was a high strung, nervous 11 made by Ms. English have been recognized by North Carolina courts for more than 50 years. The concern of North Carolina addressed through a tort action for intentional infliction of emotional distress is to prevent maliciously destructive and disruptive con- duct towards North Carolina’s citizens. As stated by Judge Phillips in Woodruff v. Miller, 64 N.C.App. 364, 307 S.E.2d 176, 178 (1983) : Fortunate it is for our people and society that such maliciously destructive and disruptive conduct is re- garded as extreme and outrageous—rather than nor- mal and acceptable—and that our law provides an orderly way for the community to disapprove of it and compensate those victimized by it. As recognized by Judge Dupree and affirmed by the Fourth Circuit, this same type of claim, addressing the same state concern about conduct towards its citizens, has been recognized by the North Carolina courts in the employment situation. Dixon v. Stuart, 85 N.C.App. 338. 354 S.E.2d 757 (1987). It is such outrageous conduct of respondent . wards Ms. English that violates North Caro- lina’s strong state interest in providing Ms. English with the remedy she is attempting to address in the present action.* The decision below conflicts with this Court’s unani- mous decision in Farmer v. United Brotherhood of Car- penters, 430 U.S. 290 (1977), that a tort action for in- woman with marked and emotional! reactions . . .” (Appendix, p. 41a), and “. . . that Complainant was wn unusually excitable in- dividual. . .”. (Appendix, p. 42a) Thus respondent certainly had knowledge that Ms. English would be susceptible to the harassment, surveillance and ridicule that it directed towards her, thereby mak- ing its actions even more outrageous. Hence, Ms. English’s claim for punitive damages—which even the district court acknowledged was not a form of remedial relief available under the whistleblower provisions of section 210 (Appendix, at p. 18a)—was well stated in her tort complaiut. 3 As found by the Administrative Law Judge, Ms. English was subjected to an “inquisition”. (Appendix, p. 43a) 12 tentional infliction of emotional distress is not pre- empted by the National Labor Relations Act. Farmer indicates that a court should examine the state’s interest in regulating the conduct in question, when considering a question of preemption. 430 U.S. 297. In addition, the decision recognizes the importance of regulating out- rageous conduct, as North Carolina does in the tort of infliction of emotional distress. Regardless of whether the operation of the hiring hall was lawful or unlawful under federal statutes, there is no federal protection for conduct . . . which is so outrageous that “no reasonable man in 2 civ- ilized society should be expected to endure it.” Thus ... permitting the exercise of state jurisdiction over such complaints does not result in state regulation of federally protected conduct. 430 U.S. at 302 (citations omitted). The same concerns expressed by this Court in Farmer apply in the present case. Judge Dupree concluded that Section 210 of the ERA, by itself, constitutes a scheme so pervasive and compre- hensive with respect to nuclear workers’ protection that it preempts state tort actions of whatever sort. Appendix, p. 22a) Plaintiff does not agree with this conclusion, and asserts that the legislative history does not support it. But even if Judge Dupree is correct, Farmer clearly allews a state to supplement the! federal remedies, given a compelling state interest, and as long as such “supple- mentation” does not conflict with the federal statute. Judge Dupree recognized that such an exception to pre- emption existed under Farmer, but rationalized that Farmer did not apply primarily because there was an overlapping of state and federal remedies: In this action, plaintiff has a federal remedy in Sec- tion 210. That Section specifically addresses “other discrimination” and provides for compensatory dam- ages in the case of a violation.” (Appendix, p. 28a) 13 However, Judge Dupree’s rationale has been speci- cally rejected by this Court’s recent decision in Lingle v. Norge Division of Magic Chef, 486 U.S. ——, 100 L.Ed.2d 410 (1988) (Decided after Judge Dupree’s decision in this case). The issue in Lingle was whether a state action for wrongful discharge was preempted by the National Labor Relations Act. There was almost total overlap of the damages available to the plaintiff in Lingle; and in fact, at the time the case was heard by this Court, plaintiff had filed a grievance under the collective bargaining agreement and had already re- ceived full back pay and reinstatement through that pro- ceeding. 486 U.S. at , 100 L.Ed.2d at 416. Those factors notwithstanding, this Court concluded that the state action constituted a “separate font” of substantive rights that were not preempted by federal law. 486 U.S. at ——, 100 L.Ed.2d at 422. For similar reasons, Lingle would require reversal of the decision below to afford Ms. English the right to pursue her separate, non- federal claims. This Court has consistently expressed deference to the concerns and enactments of the states, finding pre- emption only where Congress has clearly and expressly occupied the entire field, or where there is an actual conflict with federal law. This respect for the rights of the states has been especially evident in the employ- ment area.* As this Court has stated in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243 (1959) : 4 See, e.g., Automobile Workers v. Russell, 356 U.S. 634 (1958) (State action for assault not preempted.); Linn v. Plant Guard Workers, 383 U.S. 53 (1966) (State action for malcious libel not preempted.) ; Sears Roebuck Co. v. Carpenters, 436 U.S. 180 (1978) (State action for trespass not preempted.); Belknap v. Hale, 463 U.S. 491 (1983) (Common law action for fraud and breach of an employment contract not preempted.) ; Fort Halifax Packing Com- pany v. Coyne, 482 U.S. , 96 L.Ed.2d 1 (1987) (State statute requiring employers to provide severance pay to employees in the event of a plant closing, not preempted by ERISA or NLRA.). 14 Due regard for the presuppositions of our embracing federal system, including the principle of the diffusion of power not as a matter of doctrinaire localism but as a matter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the federal regulation. Outrageous conduct inflicting severe emotional distress was, at best, a peripheral concern of Section 210 of the ERA. Under the decisions of this Court, North Carolina should not be precluded by Section 210 from protecting its citizens from such conduct, and Ms. English should be allowed to proceed to trial on her state tort claims. B. The Decision Below Conflicts With The Holding Of This Court In California Coastal Commission ov. Granite Rock Co., 480 U.S. 572 (1987). The lower court preempted state tort law on the ground that there was an “irreconcilable conflict between the federal and state standards” concerning employee rela- tions at commercial nuclear facilities, and that this con- flict would “frustrate the objectives of federal law.” (Appendix, p. 19a) In making these findings the lower court turned the law of federal preemption on its head. The lower court essentially looked at the language of Section 210 of the Energy Reorganization Act, and par- ticularly at 42 USC Section 5851(g), and articulated three hypothetical circumstances in which Section 210 and state law might possibly conflict. But nothing in the record supported a finding that such conflicts actually existed-—particularly since this matter was before the court on a Rule 12(b) (6) motion. Hence, the holding below that Ms. English’s claims were preempted was based solely on the hypothetical possibility that state- federal conflicts may exist; end that approach was con- trary to the legal standard which should have been applied. — at lea 15 In California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987) this Court articulated the correct standard for applying such hypothetical reasoning to pre- emption cases: “To defeat Granite Rock’s facial challenge [that the Coastal Commission’s actions were preempted], the Coastal Commission needed mereiy to identify a possible set of permit conditions not in conflict with federal law.” , 480 U.S., at 593 (Emphasis added). Hence, the party attempting to find preemption may not rely on hypothetical circumstances to justify pre- emption; rather, to defeat a preemption challenge a party need only “identify a possible” set of “conditions not in conflict with federal law.” The s.andard enunciated in California Coastal Commission provides the only logical rationale. Since hypothetically virtually every state law could be arguably found to conflict with federal law, the decision below invites imaginative preemption advocates to rg bases for totally engulfing and abolishing states’ rights. Thus, under the rationale and ruling of the lower court that Section 210 is the exclusive remedy for em- ployees at Gereral Electric’s fuel processing plants, those employees ar, now presumably denied any of the pro- tections of the following North Carolina statutes: N.C.Gen.Stat. Section 143-422.2 prohibition against discrimination in employment on the basis of race, religion, color, national origin, age or sex. N.C.Gen.Stat. Section 97-6.1 protection from retaliation for filing a worker’s com- pensation claim.°® 5In Lingle, supra, this Court expressly disallowed a company’s preemption defense, and authorized a worker’s state compensatory and punitive damage action to proceod, whcre the claimed basis for the worker’s tort damages were bottomed on a comparable provision 16 N.C.Gen.Stat. Section 95-130 (8) protection from retaliation for filing a complaint un- der the North Carolina Occupational Safety and Health Act. N.C.Gen.Stat. Section 95-25.20 protection from retaliation for filing a complaint ur- der the North Carolina Wage and Hour Act. N.C.Gen.Stat. Sections 96-15.1 and 15.2 protection from retaliation for being a witness in an unemployment compensation hearing. N.C.Gen.Stat. Chapter 168A protection from discrimination in employment on the basis of being handicapped. While the lower court’s decision does not expressly preempt the state laws cited above, the rationale of that decision certainly compels such a conclusion. As noted, it is an easy task to construct hypothetical situations involving each of these state statutes that might possibly conflict with the provisions of Section 210 of the ERA, and thus support preemption under the lower court’s rul- ing. Indeed, there is certainly nothing to clearly distin- guish the preemption of Petitioner’s state tort claim for intentional infliction of emotional distress, from each of these state statutes affecting the employer-employee re- lationship. We stress that there are no facts on the record in this ease which actually show that Ms. English’s claims con- flict with, or would in any way frustrate, the purposes of any federal law. As this Court stated in California Coastal Commission: . . . we hold only that the barren record of this facial challenge has not demonstrated any conflict. We do not, of course, approve any future application of the Coastal Commission permit requirement that in fact conflicts with federal law. 480 U.S. 594 (emphasis added). of Illinois law protecting workers against retaliatory discharge for filing worker’s compensation claims. ee ae SOR ne, ee Oe omen oR od el ae ma oe 17 The important power of the states to articulate their own body of law should not be discarded on the mere pos- sibility that a facial challenge could be made, or that a court might interpret state law in such a manner as to conflict with federal law. The courts of North Carolina must be free to develop their own tort law in cases such as this. Federal courts, sitting in diversity, can reason- ably predict the rules of law that the courts of North Carolina will adopt. And given the strong recognition that North Carolina’s courts have afforded to claims of infliction of emotional distress in fashioning the state’s tort remedies, the court below should have given cogni- zance, as well as equal accommodation, to both the Su- premacy Clause of the U.S. Constitution and the law of the State of North Carolina, and found that Ms. English’s tort claims do not irreconcilably conflict with 42 USC section 5851(g). C. The Decision Below Conflicts With The Holding Of This Court In Decanas v. Bica, 424 U.S. 351 (1976). Decanas was an action to enforce a California statute prohibiting the employment of undocumented alien farm- workers. The issue before the Court was whether the state statute was preempted by the Immigration Act. The argument for preemption was especially strong in this situation as the “Power to regulate immigration is unquestionably exclusively a federal power.” 424 U.S. at 354. In upholding the California statute, this Court recog- nized that “States possess broad authority . . . to regu- late the employment relationship to protect workers within the State.” 424 U.S. at 356. Thus this Court concluded that the statute was valid, even in the face of the unequivocally exclusive federal power in the area of immigration, and “. . . even if such local regulation has some purely speculative and indirect impact on immigration....” 424 U.S. at 355. 18 As set forth above, North Carolina has recognized the tort of infliction of emotional distress in the eniploy- ment situation. Dixon, supra. North Carolina has done so to protect its citizens and workers from outrageous conduct by employers. The protection of North Carolina’s workers from such outrageous conduct is surely of suf- ficient concern to bring it within the “broad authority” of the State recognized by this Court in Decanas; and certainly beyond an assault based solely on some purely speculative and indirect impact on Section 210 of the ERA. The court in Decanas also indicated that in the con- text of the employment relationship, considerable def- erence should be given to the power and rights of states, and that preemption is required in only the most clear and extreme cases: Only a demonstration that complete ouster of state power—including state power to promulgate laws not in conflict with federal laws—was “the clear and manifest purpose of congress” would justify that con- clusion. 424 U.S. at 357 (citation omitted). Hence, as there is nothing to show such a “clear and manifest purpose” to oust state power in the area of state damage actions based on state tort laws, the decision below should be reversed and Ms. English’s claim for emotional distress should be allowed to proceed to trial. D. The Decision Below Conflicts With This Court’s De- cision In Pacific Gas and Electric Co. v. Energy Re- sources Commission, 461 U.S. 190 (1981), And Silkwood v. Kerr McGee Corp., 464 U.S. 238 (1984). The two cases decided by this Court in the field of atomic energy confirm that Ms. English’s claim for in- fliction of emotional distress is not preempted. Pacific Gas and Electric v. Energy Resources Com- mission, 461 U.S. 190 (1983), required this Court to