Amicus Curiae Brief — English v. General Elec. Co.

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Supreme Court, U.S,

FILED

No. 89-152 MAR 8 1990

JOSEPH F. BPANIOL. JR.

IN THE ae —_

Suprenv Court of the United States

OCTOBER TERM, 1989

VERA M. ENGLISH,

‘ Petitioner,

GENERAL ELECTRIC COMPANY,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF THE

NATIONAL CONYPERENCE OF STATE LEGISLATURES,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL LEAGUE OF CITIES,

COUNCIL OF STATE GOVERNMENTS,

INTERNATIONAL CITY MANAGEMENT ASSOCIATION,

AND U.S. CONFERENCE OF MAYORS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

STEVEN K. HOFFMAN 3ENNA RUTH SOLOMON

BRADLEY M. CAMPBELL Chief Counsel

ROGOVIN, HUGE & SCHILLER STATE AND LOCAL

1250 24th Street, N.W. LEGAL CENTER

Washington, D.C. 20037 444 North Capitol St., N.W.

(202) 467-8300 Suite 349

Of Counsel Washington, D.C. 20001

(202) 638-1445

Counsel of Record for the

Amici Curiae

WILSON - Epes PRINTING Co., INC. - 789-0096 - W4sSHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the limited remedy available to “whistle-

blower” employees under Section 210 of the Energy Re-

organization Act of 1978 for retaliation by nuclear facil-

ity operators preempts a state tort claim of intentional

infliction of emotional distress.

(i)

TABLE OF CONTENTS

ST EIEIIED —ccsenssecsraserssnnnssoveceesvecosspeossces

ge yy | cn

INTEREST OF THE AMICI CURIAE .....................--.

EE SETTER

INTRODUCTION AND SUMMARY OF ARGU-

a cricrncieccnenerenemensapeceseunccecsecces

Il.

THE STATES’ COMPELLING INTEREST IN

REMEDYING INTENTIONAL INFLICTION

OF EMOTIONAL DISTRESS IN THE EM-

PLOYMENT CONTEXT PRECLUDES PRE-

EMPTION OF THAT CLAIM .....W000...

A. The States Have Firmly Established Their

Interest In Remedying The Intentional In-

fliction Of Emotional Distress Sotn In And

Outside The Workplace ...........0...0000..0.0.-0......

B. This Court Has Determined That The States’

Compelling Interest In Remedying The In-

tentional Infliction Of Emotional Distress

Is Peripheral To The Federal Interest In

Remedying Discrimination In The Work-

place .

CONGRESS DID NOT INTEND THRE EN-

ERGY REORGANIZATION ACT’S REMEDY

FOR EMPLOYMENT DISCRIMINATION

AGAINST WHISTLEBLOWERS TO SUP-

PLANT THE STATES’ SETTLED AUTHOR-

ITY TO PROTECT EMPLOYEES FROM

OUTRAGEOUS CONDUCT ..00000..... eee.

(iii)

TABLE OF CONTENTS—Continued

A. Congress Did Not Intend The Whistleblower

Provision To Preempt The States’ Authority

To Regulate Intentional Torts Like The In-

tentional Infliction Of Emotional Distress....

1. The Atomic Energy Act accommodates

state causes of action to remedy extreme

I ici icitttcthieiciniaieiatnatietiniaiiiiiats

2. The ERA evinces no congressional in-

tent to preempt a claim of intentional in-

fliction of emotional distress ......................-

B. Preemption Of The State Claim Presented

Would Impermissibly Eliminate Or Curtail

A Remedy For The Victims Of Intentional

TERT siccsterietiieshicaithctaettecsinabieatiidimibieaaicaiiniaaaiatalainaiaiatiaitt

{1Il. STATE REMEDIES FOR THE INTEN-

TIONAL INFLICTION OF EMOTIONAL DIS-

TRESS NEITHER INTERFERE NOR CON-

FLICT WITH THE REMEDIES PROVIDED

BO CD ID teciccctessiinsinineittinltntitiaplititatininipsibenivaniee

A. A State Remedy To Redress Tortious Con-

duct Does Not Interfere With The Section

210 Remedial Scheme Because The State

Need Not Resolve Or Intrude On Issues Of

Federal Law Or Policy ..................22.22-2-c0000----

B. Recovery For Intentional Infliction Of Emo-

tional Distress Does Not Conflict With The

Provisions Of Section 210 ................00.....-.......

C. The Courts Are Amply Equipped To Elimi-

nate Any Incidental Effects Of A State Rem-

edy For Intentional Infliction Of Emotional

Distress On The Federal Interests Mani-

GRRE TD TRUITT TED ceccccnecesecsecssecieccecsnnensenenes

CONCLUSION ..oceocceececeeeoceee ARE Ae 5 ahs

Page

TABLE OF AUTHORITIES

CASES:

Ailetcher v. Beneficial Finance Co., 2 Haw. App.

& 4 bE eroneeren

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

REESE Ee eee ee ce = oe

Alsteen v. Gehl, 21 Wis. 2d 349, 124 N.W.2d 312

RE RSRRR EER re ene Rink me OT TCI

Amalgamated Ass'n of Street, Electric Railway &

Motor Coach Employees v. Lockridge, 403 U.S.

SS ce NR a

American Road Service Co. v. Inmon, 394 So. 2d

ie RES Eee OnE Re ee a Oe

Amsden v. Grinnell Mutual Reinsurance Co., 208

Re EO ree

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

Batchelor v. Sears Roebuck & Co., 574 F. Supp.

EF = @ % Freee sense se eeTe

Belknap, Inc. v. Hale, 463 U.S. 491 (1983) —...........

Branda v. Sanford, 97 Nev. 6438, 637 P.2d 1223

Breeden v. League Services Corp., 575 P.2d 1374

ERE EEE Sy OF a Cn

Burgess v. Chicago Sun-Times, 132 Ill. App. 3d

181, 476 N.E.3d 1284 (19688) ................................

California v. ARC America Corp., 109 S. Ct. 1661

ERE SES SEEN oe a ae ae TCO

California Coastal Comm’n v. Granite Rock Co.,

ee a Sy I Si ccinciceinssitiiitlicientilaehiabitnanhdiitatinnien

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987)..

Champlin v. Washington Trust Co., 478 A.2d 985

REE RS 22 Seon ec 7 te

Dawson v. Associates Financial Services Co., 215

Kan. 814, 529 P.2d 104 (1974) .....000000 ee.

Dickens v. Puryear, 302 N.C. 487, 276 S.E.2d 325

a al

Dixon v. Stuart, 85 N.C. App. 338, 354 S.E.2d 757

III ti scinrsctsaiibdaiidatel iets ditienan eb iatieigiadaanenistiaalinatiaddnansit

Page

TABLE OF AUTHORITIES—Continued

Page

English v. Whitfield, 858 F.2d 957 (4th Cir.

ERE er ne nae ned ODE ene re ETT nee eae 4

Exxon Corp. v. Governor of Maryland, 487 U.S.

RENE EERE Re rene ee Cone 24

Farmer v. United Brotherhood of Carpenters &

Joiners, Local 25, 479 U.S. 290 (1977) ....000...... passim

First National Bank v. Braydon, 84 S.D. 89, 167

I 9

Fischer v. Maloney, 48 N.Y.2d 558, 373 N.E.2d

1215, 402 N.Y.S.2d 991 (1978) 2.00.0... 8

Ford Motor Credit Co. v. Sheehan, 373 So. 2d 956

(Fla. lst Dist. Ct. App.), cert. dismissed, 379

is ies oe 9

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1

a 13

Gellert v. Eastern Air Lines, 370 So. 2d 802 (Fla.

es 9

George v. Jordan Marsh Co., 359 Mass. 244, 268

te 8

Goodyear Atomic Corp. v. Miller, 108 S. Ct. 1704

ETE PA REN aa er eI Te TIN SORES OR 16, 20

Grimsby v. Samson, 85 Wash. 2d 52, 530 P.2d 291

| EE CRW SRR ery eros Ren Oe 8

Hatfield v. Max Rouse & Sons Northwest, 100

Idaho 840, 606 P.2d 944 (1980) 0... 8

Hillsborough County v. Automated Medical Lab-

oratories, 471 U.S. 707 (1985) 00. 16

Howard University v. Best, 484 A.2d 958 (D.C.

pS te EN tte Ca FL OR 8

Hubbard v. United Press International, 330 N.W.

EA as ea 8

Hudson v. Zenith Engraving Co., 278 S.C. 766,

ee ee ee 8

Hume v. Bayer, 157 N.J. Super. 310, 428 A.2d

a eee et 8

International Union, UAW v. Russell, 356 U.S.

OO a 12, 19, 20, 21, 26

Kanawha Valley Power Co. v. Justice, 383 S.E.2d

ne 8

vii

TABLE OF AUTHORITIES—Continued

Page

Kersul v. Skulls Angels Inc., 180 Misc. 2d 345, 495

N.Y.S.2d 886 (Sup. Ct. 1985) .....................--...--- 10

Kirwin v. New York State Office of Mental Health,

665 F. Supp. 1034 (E.D.N.Y. 1987) -................... 11

Knierim v. Izzo, 22 Ill. 2d 73, 174 N.E.2d 157

COD oncccccnscsrintiitnpnsentnnceninceninaniiittnantannmnrnnteateninesin 8

Leedom v. Kyne, 358 U.S. 184 (1958) .................... 19

Lingle v. Norge Division of Magic Chef, Inc., 108

— RE nner ee re 7, 23, 24

Linn v. United Plant Guard Workers of America,

ee io csccesetemnaecabemmensiial 12, 27-28

Malone v. White Motor Corp., 485 U.S. 497

STIS AEDS eo aE SnD CTS Oe 13

M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d

I a sais iciaiimomnamapiasainiionislonat 8

Medlin v. Allied Investment Co., 217 Tenn. 469,

RE ED ED... ccccccsostnenismnmentuabrennerssnee 8

Metropolitan Life Insurance Co. v. Massachusetts,

I Te isin ccedreteneaeiiobindmnisamans 13

Mindt v. Shavers, 214 Neb. 786, 337 N.W.2d 97

RIS EE Se cE POO ne 8-9

Muchow v. Lindblad, 485 N.W.2d 918 (N.D

ESE Cee en 8

Murray v. Bridgeport Hospital, 40 Conn. Sup. 56,

I a seeldeancionitionnn 8

Norris v. Lumbermen’s Mutual Casualty Co., 881

F.2d 1144 (1st Cir. 1989) ..................................-.. 17

Oldfather v. Ohio Dep’t of Transportation, 653

F. Supp. 1167 (S.D. Ohio 1986) -..............0.......... 10

Paasch v. Brown, 198 Neb. 368, 227 N.W.2d 402

— SEESSICE SE RE Sareea are oe ee ee 8

Pacific Gas & Electric Co. v. Energy Resources

Conservation & Development Comm’n, 461 U.S.

I) SD wucddiisiticcstiaciniecatintcnmmiciiiteunindincniniiibeinanes 14, 15, 16

Pack v. Wise, 155 So. 2d 909 (La. App. 1963).... 8

Pakos v. Clark, 253 Or. 118, 453 P.2d 682 (1969)... 8

Papieves v. Lawrence, 487 Pa. 373, 263 A.2d 118

STII Nish hecnchicichpuishliiadlibieiticed-esaddansibinidiiianeduldeinbasindapensienbss 8

viii

TABLE OF AUTHORITIES—Continued

Page

Pelizza v. Reader’s Digest Sales & Service Inc.,

624 F. Supp. 806 (N.D. Ill. 1985) 2. 10

Peterson v. First Federal Savings & Loan Ass’n,

617 F. Supp. 1039 (D. St. Croix 1985) ................ 10

Plante v. Engel, 469 A.2d 1299 (N.H. 1983) _........ 8

Polson v. David, 635 F. Supp. 1130 (D. Kan.

a a 11

Pratt v. Caterpillar Tractor Co., 149 Ill. App. 3d

588, 500 N.E.2d 1001 (1986) .......0..0000000 0 ee. 10

Pretsky v. Southwestern Bell Telephone Co., 396

a YG a teuaieniitoentciil 8

Retail Clerks v. Schermerhorn, 375 U.S. 96

I 13

R.J. Reynolds Tob7eco Co. v. Durham County, 107

See oa mee ON 16

Rice v. Norman \ ‘ams Co., 458 U.S. 654

ESR EEES aBrre Se ee Sonar ee ase ie Se i 24

Richardson v. Fairbanks North Star Borough, 705

P.2d 454 (Alaska 1985) .............. clit idaiielbaiaataee 8

Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753

SII sineccsdlbihetiens skulle acai tarstadiiceeiciicaial aaa. 8

Samms v. Eccles, 11 Utah 2d 289, 358 P.2d 344

I 8

Sanders v. Lutz, 784 P.2d 12 (N.M. 1989) ........... 8

San Diego Building Trades Council v. Garmon,

Se I 11, 11-12, 12-13

Savage v. Boies, 77 Ariz. 355, 272 P.2d 349

a a &

Sears, Roebuck & Co. v. San Diego County Dist» tet

Council of Carpenters, 436 U.S. 180 (1978) _..... 12

Sheltra v. Smith, 186 Vt. 472, 392 A.2d 431

Eee eR Ol Ae ET ERD 8

Silkwood v. Kerr-McGee Corp., 464 U.S. 238

EE ae es eT eK PND ose ee me passim

Silkwood v. Kerr-McGee Corp., 485 F. Supp. 566

UR 15

State Rubbish Collectors Ass’n v. Siliznoff, 38 Cal.

2d 330, 240 P.2d 282 (1962) ................................ 8

Trans World Airlines v. Independent Federation

of Flight Attendants, 109 S. Ct. 1225 (1989)... 19

TABLE OF AUTHORITIES—Continued

Page

United Construction Workers v. Laburnum Con-

struction Corp., 347 U.S. 656 (1954) ........ 12, 15, 20, 21

University of Tennessee v. Elliot, 478 U.S. 788

| ee 28

Vaca v. Sipes, 386 U.S. 171 (1967) ................-..------- 1l

Vicenire v. Ford Motor Credit Co., 401 A.2d 148

Ss BI eich cctcscndinsdvicnnnerndsmimninniinigmaseniperes 8

Warren v. June’s Mobile Home Village & Sales,

66 Mich. App. 386, 239 N.W.2d 380 (1976) ........ 8

Womock v. Eldridge, 215 Va. 338, 210 S.E.2d 145

TITY axiccsuevdocehsdecstiiepnsecerinsdiiciiapeilitisatdaninceiieaenesantenn 8

Yeager v. Local Union 20, Teamsters, 6 Ohio St.

8d 369, 453 N.E.2d 666 (1983) ........................--- 8

CONSTITUTIONAL PROVISION:

Supremacy Clause, U.S. Const. Art. VI, cl. 2 ........... passim

STATUTES AND REGULATIONS:

Atomic Energy Act of 1954, 42 U.S.C. § 2011 et

seq. a FS SF

42 U. s. C. § 2021 (k) . 5 OR Ae nO RR eS 14

Energy Reorganization Act of 1978, §219, 42

as aricennssenennencninnbtinnniil passim

TT 18, 23, 25

Ce | car 21

SS 4

ED occ cecsccreccnesencessssens Paes 25

PT | ee 17, 18, 24

42 U.S.C. § 5851 (b) (2) (B) —-............... 4, 19, 20-21, 25

a cicnseicetnsiiamninnin 26

Cc ee 21, 24, 25

Federal Employer’s Liability Act, 45 U.S.C. §51

"kesh a BE a nee 23

Labor Management Relations Act of 1947, 29

gS nee 6, 12, 17, 18, 19

National Labor Relations Act of 1935, 29 U.S.C.

oT 6, 17, 19

I acid allinalie 17

FEEDS Saar aE ee 18

TABLE OF AUTHORITIES—Continued

Page

a eee 18

28 U.S.C. § 168(a) (4) .......................... emcaiees 17, 18

29 U.S.C. § 160................... eS A MET LTRS 18

REESE ry cea OE PO 18, 27

IEE A a i eC 18

Pub. L. No. 95-601, 92 Stat. 2947 (1978)... 14, 16

Railway Laber Act, 45 U.S.C. § 151 et seq. .......... 19, 23

st 23

29 C.F.R. § 24.6(b) (2) «2.002200... sisialeniheiulesiniaisiinians 21

LEGISLATIVE MATERIALS:

S. Rep. No. 848, 95th Cons., 2d Sess., reprinted

in 1978 U.S. Code Cong. & Admin. News 7303.... 14, 17,

MISCELLANEOUS:

Austin, Employer Abuse, Worker Resistance and

the Tort of Intentional Infliction of Emotional

Dis: 288s, 41 Stan. L. Rev. 1 (1988) 0... 10, 11

Givelber, The Right to Minimum Social Decency

and the Limits of Evenhandedness: Intentional

Infliction of Emotional Distress by Outrageous

Conduct, 82 Colum. L. Rev. 42 (1982) nf

Restatement (Second) of Torts (1965) ............ 8, 9, 10, 28

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-152

VERA M. ENGLISH,

™ Petitioner,

GENERAw ELECTRIC COMPANY,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF THE

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL LEAGUE OF CITIES,

COUNCIL OF STATE GOVERNMENTS,

INTERNATIONAL CITY MANAGEMENT ASSOCIATION,

AND U.S. CONFERENCE OF MAYORS

AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICI CURIAE

The amici are organizations whose members include

state, county, and municipal governments and officials

throughout the United States. These organizations and

their members have a compelling interest in legal issues

that affect the powers and responsibilities of state and

loca! governments.

Amici have an abiding interest in preserving the power

of state governments to protect their citizens from inten-

tional tortious conduct and to provide common law reme-

dies for the victims of such conduct. This case is of grave

concern to amici because of the casual inference by the

courts below that Congress intended that a “whistle-

blower” protection statute, Section 210 of the Energy Re-

organization Act of 1978, 42 U.S.C. § 5851 (“ERA”),

woulda preempt state tort laws that do not conflict with

either the national labor laws or the federal nuclear regu-

latory scheme.

Like forty-one other States and the District of Colum-

hia, the State of North Carolina recognizes a cause of

action for the intentional infliction of emotional distress,

whether the tortfeasor inflicts the harm in the workplace,

in the public streets, or in the homes of its citizens. Like

the other States, North Carolina provides remedies, in-

cluding punitive damages, to victims of severe emotional

distress caused by “outrageous” conduct. Affirmance of

the Fourth Circuit’s decision that Section 210 preempts

part of that power will jeopardize the States’ efforts to

provide such protection and such remedies.

The inevitable effect of the Fourth Circuit’s decision

would be to immunize employers in the nuclear field from

liability for conduct for which all other North Carolina

employers are severely sanctioned, conduct that in no way

implicates the federal interest in rep rting nuclear safety

hazards. It would also deprive nuc!.ar employees of reme-

dies available to all other similarly situated North Caro-

linians, remedies unavailable under the ERA. In shor%t,

affirmance of the decision }elow would severely circum-

scribe the ability of the States to proscribe and to

redress conduct that transgresses the fun amental norms

of a civilized society.

Amici submit that the decision below is wrong and

should be reversed. Because this Court’s decision will

have a direct effect on matters of prime importance to

amici and their members, amici submit this brief to as-

sist the Court in its resolution of this case.*

1 Pursuant to Rule 37 of the Rules of this Court, the parties’

letters of consent have been filed with the Clerk.

STATEMENT

For almost twelve years, petitioner Vera M. English

(“English”) worked for respondent, the General Electric

Company (“GE”), as a laboratory technician inspecting

nuclear fuel pellets containing uran' 1m at GE's nuclear

fuel processing facility in Wilmington, North Carolina.

J.A. 810. In the course of her work, English witnessed

serious safety violations and reported them to the Nuclear

Regulatory Commission (“NRC”) and to her GE super-

visor in February 1984. J.A. 11. When GE failed to take

corrective action, English took it upon herself to highlight

those violations. J.A. 12. At the end of her work shift on

March 10, 1984, English intentionally failed to clean up

contaminated material left by other employees in the

vicinity of her work station. J.A. 12. Instead, she high-

lighted the contaminated material with the red tape used

for that purpose. J.A. 12. When she returned for her

next shift on March 12, 1984, and found the area as she

had left it, she informed her supervisor. J.A. 13.

At this point, GE suspended operations in the labora-

tory and took action to correct many of the problems

English had identified. J.A. 13. On March 15, 1984,

however, GE brought a series of written charges agoinst

English, ordered her removed from the laboratory, barred

her from further work with radioactive materials, re-

assigned her to a position in a warehouse at the facility,

and placed her on probation. J.A. 15-14. More pertinent

for the purpose of the instant case is the abusive man-

ner in which GE effected this discipline. First, it had

English physically removed from the laboratory under

guard, thereby exposing her to the ridicule of her fellow

employees. J.A. 14. Then; for the next three months, it

subjected her to a campaign of clearly visible surveillance

and harassment, including forbidding her to eat in the

company lunch room with her fellow employees. J.A. 14-

15. As a result of GE’s treatment, English suffered

severe depression, requiring psychiatric treatment. J.A.

18. Finally, on July 30, 1984, having failed to place her

in another permanent position, GE discharged her. J.A.

16-17.

Consequently, on August 24, 1984, English filed a com-

plaint against GE pursuant to Section 210 of the Energy

Reorganization Act of 1978 (“ERA”), 42 U.S.C. § 5851.

Section 210 provides an administrative cause of action

to employees in the nuclear industry who believe that

they have been discharged or otherwise discriminated

against with respect to compensation, terms, conditions,

or privileges of employment because they have reported

safety violations. 42 U.S.C. § 5851(a)-(g). Although

codified with the provisions governing the operation of

the NRC, Section 210 delegates to the Secretary of Labor

the task of investigating complaints by whistleblowers.

In the event that the Secretary finds a violation of the

statute, she is authorized to order the complainant rein-

stated to her former position and t» award back pay. 42

U.S.C. § 5851(b)(2)(B). In addition, the Secretary

“may” award compensatory damages to the complainant.

Ibid. The Secretary dismissed English’s complaint as

untimely, anc the Fourth Circuit Court of Appeals af-

firmed. English v. Whitfield, 858 F.2d 957 (4th Cir.

1988) .?

English then brought this diversity action against GE

in federal district court in M:+th Carolina, alleging state

law claims for wrongful discharge and intentional inflic-

tion of er.otional distress and seeking compensatory and

punitive damages. The district court dismisscd the wrong-

ful discharge claim. Pet. App. 25a.* Relying on Dixon

2 Although the court of appeals affirmed, it remanded the case

for consideration of the timeliness of English’s claim of a con-

tinuing violation cf the statute. 858 F.2d at 964. When an ad-

ministrative law judge dismissed that claim as well, English

appealed to the Secretary. That appeal is still pending.

8 It did so on the alternative grounds that English had failed

to state a claim for wrongful discharge under North Carolina

law and that Section 210 of the ERA preempted wrongful dis-

charge claims. Pet. App. 23a-25a. English did not appeal the

dismissal of her wrongful discharge claim.

v. Stuart, 85 N.C. App. 338, 354 S.E. 2d 757 (1987),

the court held that English had indeed stated a cause of

action for intentional infliction of emotional distress by

alleging that GE had wilfully and maliciously engaged

in “ ‘extreme and outrageous’ ” conduct toward her, caus-

ing her to suffer “severe emotional distress.” Pet. App.

27a. The court further held, however, that this claim was

preempted by Section 210 of the ERA. Id. at 28a-29a.

The district :ourt recognized that English’s complaint

only tangentially concerned nuclear safety; therefore, it

could not be preempted on the ground that it impinged on

a matter committed exclusively to federal regulation. Pet.

App. 17a, 18a. Rather, the court concluded that Section

210 iiself was so comprehensive as to preclude any effort

by the States to supplement its remedial provisions. /d.

at 22a-23a. The court expressly declined to apply this

Court’s decision in Farmer v. United Brotherhood of Car-

penters & Joiners, Local 25, 430 U.S. 290 (1977), to the

case before it—although Farmer squarely held that the

remedial procedure for employment discrimination ad-

ministered by the National Labor Relations Board did

not preempt a state claim for intentional infliction of

emotional distress—on the ground that Farmer created

only a “ ‘narrow exception to federal preemption.’” Pet.

App. 28a. Finally, the court indicated its belief that

English’s emotional distress claim should be presented

to the €reretary of Labor because all but one of the

allegations supporting that claim could also support a

Section 210 proceeding. Ibid. In a brief per curiam

decision, the Fourth Circuit adopted ta@ district court’s

reasoning and affirmed. /d. at 2a-3a.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case concerns an issue close to the core of the

States’ unquestioned interest in matters relating to public

health and safety: the power to provide a remedy for

conduct that is intolerable in a civilized society. In hold-

ing that petitioner’s claim for intentional infliction of

emotional distress was preempted by Section 210 of the

ERA, the lower courts not only trivialized that funda-

menta! state interest but also disregarded this Court’s

ample indications that such causes of ac'ion are not dis-

placed by federal regulations either in the field of atomic

energy or in labor relations.

Initially, the courts below failed to heed the lesson of

Farmer v. Brotherhood of Carpenters & Joiners, Local

25, 480 U.S. 290 (1977). In Farmer, this Court recog-

nized the States’ compelling interest in redressing the

intentional infliction of emotional distress and held that

the claim could comfortably coexist with the compre-

hensive federal scheme regulating discrimination in em-

ployment created by the National Labor Relations Act of

1935 and the Labor Management Relations Act of 1947—

the models for Section 219. Erroneously concluding that

Farmer created only a “narrow exception to federal pre-

emption,” the district court rested its preemption analy-

sis on what it deemed to be the pervasiveness of Seciion

210’s remedial mechanism and a potential for conflict

between that scheme and petitioner’s otherwise valid

cause of action.

In reaching this conclusion, the court failed to take

adequate cognizance of the larger regulatory scheme that

Congress established in the Atomic Energy Act of 1954,

of which Section 210 of the ERA is a part. As this Court

held in Silkwood v. Kerr-McGee Corp., 464 U.S. 238

(1984), the federal nuclear regulatory scheme, like the

federal labor law apparatus, accommodates common law

remedies for the sort of “outrageous” misconduct at

issue in this case. Further, Silkwood confirmed the pre-

sumption against inferring preemption of state causes of

action that would deprive a class of individuals of pro-

tection from intentional tortious misconduct. Therefore,

without explicit congressional direction on the subject,

the Court would not find preemption of a state cause of

action unless that cause of action created palpable inter-

ference or direct conflict with federal interests.

Although there is no express statement of congressional

preemptive intent in Section 210, the district court pur-

ported to find both interference and conflict. In doing so,

however, the court ignored the analytical standards that

this Court has devised for making such evaluations in

the Farmer line of cases and, more recently, in Cater-

pillar Inc. v. Williams, 482 U.S. 386 (1987), and Lingle

v. Norge Division of Magic Chef, Inc., 108 S. Ct. 1877

(1988). In its analysis, the court also overlooked the host

of traditional methods the federal and state courts can

employ to ensure that adjudication of petitioner’s claim

would not encroach even tangentially upon federal

interests.

To remove the threat to the States’ interest the deci-

sions below portend, this Court should explicitly reaffirm

the principle of Silkwood and Former: that the States’

traditional authority to redress intentional torts should

not be displaced in the absence of explicit congressional

direction unless a particular state regulation actually

interferes or conflicts with federal interests. Because pe-

titioner’s damages claim for intentional infliction of emo-

tional distress creates no such interference or conflict with

Section 210, there is no basis for preempting that claim.

ARGUMENT

I. THE STATES’ COMPELI.ING INTEREST IN REM-

EDYING INTENTIONAL INFLICTION OF EMO-

TIONAL DISTRESS IN THE EMPLOYMENT CON-

-TEXT PRECLUDES PREEMPTION OF THAT

CLAIM.

A. The States Have Firmly Established Their Interest

In Remedying The Intentional Infliction Of Emo-

tional Distress Both In And Outside The Workplace.

The States’ interest in affording common law protec-

tion to their citizens from the intentional infliction of

emotional distress is close to the core of their unques-

tioned interest in protecting the health and wellbeing of

their citizens. Farmer v. United Brotherhood of Carpen-

ters & Juiners, Local 25, 430 U.S. 290, 303 (1977). At

least forty-two States and the District of Columbia have

definitively recognized the tort.‘ Most have adopted

* Thirty-nine jurisdictions have adopted the formuletion of the

tort in the Restatement (Second) of Torts (1965); American Road

Serv. Co. v. Inmon, 394 So. 2d 361 (Ala. 1981); Richardson v.

Fairbanks North Star Borough, 705 P.2d 454 (Alaska 1985); Sav-

age v. Boies, 77 Ariz. 355, 272 P.2d 349 (1954); M.B.M. Co. v.

Counce, 268 Ark. 269, 596 S.W. 2d 681 (1980); State Rubbish Cul-

lectors Ass’n v. Siliznoff, 38 Cal. 2d 330, 240 P.2d 282 (1952); Rugg

v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970); Murray v. Bridge-

port Hosp., 40 Conn. Sup. 56, 480 A.2d 610 (1984); Howard Univ.

v. Best, 484 A.2d 958 (D.C. App. 1984) ; Ailetcher v. Beneficial Fin.

Co., 2 Haw. App. 301, 632 P.2d 1071 (1981) ; Hatfield v. Max Rouse

& Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980); Knierim

v. Izzo, 22 Ill. 2d 73, 174 N.E.2d 157 (1961); Amsden v. Grinnell

Mutual Reinsurance Co., 203 N.W.2d 252 (Iowa 1972); Dawson

v. Associates Fin. Serv. Co., 215 Kan. 814, 529 P.2d 104 (1974);

Vienire v. Ford Motor Credit Co., 401 A.2d 148 (Me. 1979); George

v. Jordan Marsh Cv., 359 Mass. 244, 268 N.E.2d 915 (1971):

Warren v. June’s Mobile Home Village & Sales, 66 Mich. App. 386,

239 N.W.2d 380 (1976) ; Hubbard v. United Press Int'l, 330 N.W.2d

428 (Minn. 1983); Pretsky v. Southwestern Bell Tel. Co., 396

S.W.2d 566 (Mo. 1965); Paasch v. Brown, 198 Neb. 368, 227

N.W.2d 402 (1975) ; Branda v. Sanford, 97 Nev. 648, 637 P.2d 1223

(1981); Plante v. Engel, 469 A.2d 1299 (N.H. 1983); Hume v.

Bayer, 157 N.J. Super. 310, 428 A.2d 966 (1981); Sanders v. Lutz,

784 P.2d 12 (N.M. 1989); Fischer v. Malone,, 48 N.Y.2d 553, 373

N.E.2d 1215, 402 N.Y.S.2d 991 (1978); Dickens v. Puryear, 302

N.C. 437, 276 S.E.2d 325 (1981); Muchow v. Lindblad, 485 N.W.2d

918 (N.D. 1989); Yeager v. Local Union 20, Teamsters, 6 Ohio

St.3d 369, 453 N.E.2d 666 (1983); Breeden v. League Servs. Corp.,

575 P.2d 1374 (Okla. 1978) ; Pakos v. Clark, 253 Or. 118, 453 P.2d

682 (1969); Papieves v. Lawrence, 437 Pa. 378, 268 A.2d 118

(1970) ; Champlin v. Washington Trust Co., 478 4.24 985 (RI.

1984) ; Hudson v. Zenith Engraving Co., 278 S.C. 766, 259 S.E.2d

812 (1979); Medlin v. Allied Invest. Co., 217 Tenn. 469, 398

S.W.2d 270 (1966); Samms v. Eccles, 11 Utah 2d 289, 358 P.2d

344 (1961); Womack v. Eldridge, 215 Va. 338. 210 S.E.2d 145

(1974) ; Sheltra v. Smith, 1386 Vt. 472, 392 A.2d 431 (1978);

Grimsby v. Samson, 85 Wash. 2d 52, 530 P.2d 291 (1975) ;

Kanawha Valley Power Co. v. Justice, 388 S.E.2d 313 (W.Va.

1989) ; Alsteen v. Gehl, 21 Wis. 2d 349, 124 N.W.2d 312 (1963).

Three jurisdictions recognize the tort without expressly adopt-

ing the Restatement formulation: Pack v. Wise, 155 So.2d 909

(La. App. 1963); Mindt v. Shavers, 214 Neb. 786, 337 N.W.2d 97

some variation on the formulation of the tort set forth

in the Restatement (Second) of Torts, § 46(1) (1965):

“One who by extreme and outrageous conduct inten-

tionally or recklessiy causes severe emotional distress

to another is subject to liability for such emotional

distress, and if bodily harm to the other results from

it, for such bodily harm.” See supra at 8 n.4. “[MlJere

insults, indignities, threats, annoyances, petty oppres-

sions, or other trivialities’ are insufficent to trigger

liability. Restatement, § 46(1) comment d. Rather, to

be actionable, the tort-feasor’s conduct must be “so out-

rageous in character, and so extreme in degree, as to

go beyond all possible bounds of decency, and to be re-

garded as atrocious and utterly intolerable in a civilized

community.” Ibid. Similarly, the States do not afford

relief for mere hurt feelings: “The law intervenes only

where the distress inflicted is so severe that no reason-

able man could be expected to endure it.” bid. comment

j. North Carolina sets a comparably high threshold for

stating a claim. Dickens v. Puryear, 302 N.C. 437, 276

S.E.2d 325 (1981). Because actionable conduct must be

“outrageous” and therefore deserving of punishment, a

successful claimant may often receive both compensatory

and punitive damages.°

Like the other States that have recognized the tort,

North Carolina entertains claims for intentional inflic-

(1983) ; First Nat’l Bank v. Bragdon, 84 S.D. 89, 167 N.W.2d 381

(1969).

Florida courts are split on the question of adopting the Restate-

ment version. See Ford Motor Credit Co. v. Sheehan, 373 So. 2d

956 (Fla. 1st Dist. Ct. App.), cert. dismissed, 379 So. 2d 204 (Fla.

1979); Gellert v. Eastern Air Lines, 370 So. 2d 802 (Fla. 3rd

Dist. Ct. App. 1979).

5 See generally Givelber, The Right to Mincmum Social Decency

and the Limits of Evenhandedness: Intentional Infliction of Emo-

tional Distress by Outrageous Conduct, 82 Colum. L. Rev. 42, 54

(1982) (hereinafter “Intentional Infliction’”).

None of the reported decisions reviewed suggests that reinstate-

ment or other tangible employment benefits are available as a

remedy for the intentional infliction of emotional distress.

tion of emotional distress that aris: in the employment

context. E.g., Dixon, 354 S.E.2d at “53-59. Such claims

are subject to the same high threshold imposed on claims

outside the employment context.* For instance, the tran-

sitory emotional upset accompanying unfair or unpleas-

ant work assignments, heavy workload, or other terms

and conditions of employment is not actionable.’ Neither

is the mere fact of unfair dismissal* or other forms of

employment discrimination.’ Finally, neither employment

discrimination nor outright dismissal meted out in re-

taliation for whistleblowing is actionable unless the

claimant can establish that such retaliation is accom-

panied by or perpetrated with the requisite level of

“outrageous” conduct.’® The often severe deprivations

® As one commentator has found after studying cases deciding

such claims in the employment context,

[o]nly the extraordinary, the excessive, and the nearly bi-

zarre in the way of supervisory intimidation and humiliation

warrant judicial relief through the tort of intentional infliction

of emotional distress. All other forms of supervisory conduct

that cause workers to experience emotional harm are more or

less “trivial” in the terminology of the Restctement of Torts.

Austin, Employer Abuse, Worker Resistance and the Tort of In-

tentional Infliction of Emotional Distress, 41 Stan. L. Rev. 1, 18

(1988) (hereinafter “Employer Abuse’).

7 E.g., Peterson v. First Federal Sav. & Loan Ass’n, 617 F. Supp.

1039 (D. St. Croix 1985) (working conditions); Burgess v. Chi-

cago Sun-Times, 132 Ill. App. 3d 181, 476 N.E. 2d 1284 (1983)

(work assignments).

8 £.9., Pelizza v. Reader’s Digest Sales & Serv. Inc., 624 F. Supp.

806 (N.D. Ill. 1985); Batchelor v. Sears Roebuck & Co., 574 F.

Supp. 1480 (E.D. Mich. 1983).

*E.g., Oldfather v. Ohio Dep’t of Transp., 653 F. Supp. 1167

(S.D. Ohio 1986); Kersul v. Skulls Angels Inc., 130 Misc. 2d 345,

495 N.Y.S. 2d 886 (Sup. Ct. 1985).

10 See, e.g., Pratt v. Caterpillar Tractor Co., 149 Ill. App. 3d 588,

500 N.E. 2d 1001 (1986) (discharge in retaliation for refusal to

violate federal statute does not sustain a state law outrage claim) ;

an employee may suffer as a result of discrimination in

the workplace do not alone give rise to a claim of inten-

tional infliction of emotional distress. The cause of action

is only available to compensate for truly severe emotional

distress suffered as a result of conduct that passes all

recognized boundaries of social interaction.

B. This Court Has Determined That The States’ Com-

pelling Interest In Remedying The Intentional In-

fliction Of Emotional Distress Is Peripheral To The

Federal Interest In Remedying Discrimination In

The Workplace.

In Farmer, this Court held that the federal labor laws

enacted to protect workers against discrimination in em-

ployment do not preempt a claim of intentional infliction

of emotional distress. In so holding, the Court devised

an analytical framework that should be dispositive of

the preemption issue here. Farmer arose out of alleged

discriminatory treatment in job referrals at a union

hiring hall. The plaintiff alleged, inter alia, that the

defendants “had intentionally engaged in outrageous con-

duct, threats, and intimidation, and had thereby caused

him to suffer grievous emotional distress resulting in

bodily injury.” 430 U.S. at 293. The Court recognized

that this claim “might form the basis for unfeir labor

practice charges before the [National Labor Kelations]

Board” (ibid. at 302), and, quoting Vaca v. Sipes, 386

U.S. 171 (1967), expressly indicated that “ ‘potentially

conflicting [state] “rules of law, of remedy, and of ad-

ministration” cannot be permitted to’” invade the prov-

ince of the Board. 430 U.S. at 295 (quoting Vaca v.

Sipes, 386 U.S. at 178-79 (1967) (quoting San Diego

Building Trades Council v. Garmon, 359 U.S. 236, 242

(1959))). In analyzing the preemption question, how-

ever, the Court applied the rule developed in Garmon:

Kirwin v. New York State Office of Mental Health, 665 F. Supp.

1034 (E.D.N.Y. 1987) (reassignment in retaliation for cooperation

with investirator) ; Polson v. David, 635 F. Supp. 1130 (D. Kan.

1986) (termination for objection to noncompliance with antidis-

crimination laws). See generally Employer Abuse at 5-15.

namely, that preemption would not be appropriate if the

activity complained of “‘was a merely peripheral con-

cern of the Labor Management Relations Act . . .[or]

touched interests so deeply rooted in local feeling and

responsibility that, in the absence of compelling congres-

sional direction, we could not infer that Congress had

deprived the States of the power to act.’” Farmer, 430

U.S. at 296-97, quoting Garmon, 359 U.S. at 243-44.

With that analytical framework in place, the Farmer

Court held that “(t]he State . . . has a substantial in-

terest in protecting its citizens from” the intentional in-

fliction of emotional distress. 430 U.S. at 302. It further

held that whatever “potential for interference” the ad-

judication of the tort might pose for the NLRB was in-

sufficient to warrant preemption of the state tort action.

Id. at 304.

Farmer, moreover, is only one in an unbroken series of

decisions in which this Court has vindicated the States’

plenary power to remedy intentionally tortious conduct,

even when that conduct arises in the context of a labor

dispute within the primary jurisdiction of the NLRB.

See Belknap, Inc. v. Hale, 463 U.S. 491, 498-512 (1983)

(misrepresentation) ; Sears, Roebuck & Co. v. San Diego

County Disirict Council of Carpenters, 436 U.S. 180, 207

(1978) (trespass by picketing); Linn v. United Plant

Guard Workers of America, 383 U.S. 53, 59-61 (1966)

(malicious libel) ; International Union, UAW v. Russell,

356 U.S. 634, 646 (1958) (malicious interference with

lawful occupation by means of mass picketing) ; United

Construction Workers v. Laburnum Construction Corp.,

347 U.S. 656, 669 (1954) (intimidation by picketing with

threats of violence).

These cases establish a heightened standard for pre-

emption—even in the pervasively regulated and predom-

inately federal preserve of employment relations—when

the States’ interest is as substantial as it is in regulat-

ing intentional tortious conduct like the intentional in-

fliction of emotional distress. See Garmon, 359 U.S. at

244; see also Fort Halifax Packing Co. v. Coyne, 482 U.S.

1, 21 (1987) (“pre-emption should not be lightly in-

ferr in areas “within the traditional police power of

the State’’).

II. CONGRESS DID NOT INTEND THE ENERGY RE-

ORGANIZATION ACT’S REMEDY FOR EMPLOY-

MENT DISCRIMINATION AGAINST WHISTLE-

BLOWERS TO SUPPLANT THE STATES’ SET-

TLED AUTHORITY TO PROTECT EMPLOYEES

FROM OUTRAGEOUS CONDUCT.

In determining the preemptive scope of a federal en-

actment, “‘“{t]he purpose of Congress is the ultimate

touchstone.” ’” Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 208 (1985) (quoting Malone v. White Motor Corp.,

435 US. 497, 504 (1978) (quoting Retail Clerks v.

Schermerhorn, 375 U.S. 96, 103 (1963))). When Con-

gress has not made the preemptive scope of a given enact-

ment explicit, “courts sustain a local regulation ‘unless

it conflicts with federal law or would frustrate the fed-

eral scheme, or unless the courts discern from the to-

tality of the circumstances that Congress sought to oc-

cupy the field to the exclusion of the States.’” Allis-

Chalmers, 471 U.S. at 209 (quoting Malone, 435 U:S.

at 504). This Court has been particularly slow to infer

an intent to preempt a state cause of action relating to

public health and safety because, as the Court declared in

Metropolitan Life Insurance Co. v. Massachusetts, 471

U.S. 724 (1985), Congress is presumed to act “within

the larger body of state law promoting public health and

safety,” an area in which “States traditionally have had

great latitude.” Id. at 756.

Neither Section 210 nor its legislative history speaks

directly to the issue of preemption. The district court,

however, concluded that Section 210 preempted petition-

er’s right to state remedies against outrageous miscon-

duct because the statute constituted “‘a scheme of fed-

eral regulation . . . so pervasive as to make reasonable

the inference that Congress left no room for the States

to supplement it.’” Pet. App. 22a-23a (quoting Pacific

Gas & Electric Co. v. Energy Resources Conservation

& Development Comm’n, 461 U.S. 190, 204 (1983)). In

fact, the structure of tne statute and its legislative history

demonstrate that Congress never intended to displace the

States’ fundamental authority to protect their citizens from

the intentional infliction of emotional distress, even if

such misconduct were perpetrated in the employment con-

text. See Farmer, 430 U.S. at 302.

A. Congress Did Not Intend The Whistleblower Pro-

visicn To Preempt The States’ Authority To Regu-

late Intentional Torts Like The intentional Inflic-

tion Of Emotional Distress.

1. The Atomic Energy Act accommodates state

causes of action to remedy extreme tortious con-

duct.

Section 210 of the ERA was enacted in 1978 as part

of an appropriations package for the NRC. Pub. L. No.

95-601, 92 Stat. 2947 (1978). As such, it became part

of the overall regulatory scheme initially devised by the

Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq.

(“AEA”). S. Rep. No. 848, 95th Cong., 2d Sess. 29, re-

printed in 1978 U.S. Code Cong. & Admin. News 7303,

7303 (hereinafter “S. Rep.”). This Court has thor-

ovghly reviewed the AEA and its legislative history aid

has concluded that Congress intended to displace state

regulation concerning the safety aspects of nuclear fa-

cilities. Pacific Gas & Electric, 461 U.S. at 212-13. The

Court also concluded that Congress did »~* intend to dis-

place state regulation in all matters nu..2ar. As the

Court declared in Pacific Gas & Electric itself, “Con-

gress, by permitting regulation ‘for pu:poses other than

protection against radiation hazards’ underscored the

distinction . . . between the spheres of activity left re-

spectively to the Federal Government and the States.”

Id. at 21C (quoting 42 U.S.C. § 2021 (k)).

Accordingly, this Court has upheld an award of puni-

tive damages under state law to an employee of a nu-

clear facility who had been contaminated by plutonium.

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). As

the jury instructions in Silkwood indicate, those damages

were predicated on extreme misconduct analogous to that

alleged here:

“The jury may give damages for the sake of example

and by way of punishment, if the jury finds the de-

fendant or defendants have been guilty of oppression,

fraud, or malice, actual or prerumed. . . .

_ [Exemplary damages] may be allowed when there

is evidence of such recklessness and wanton disregard

aS another’s rights that malice and evi] intent will be

inferred.”

Id. at 244-45 (quoting Silkwood v. Kerr-McGee Corp.,

485 F. Supp. 566, 603 (W.D. Okla. 1979))." Although

the Silkwood Court expressly noted its recent decision in

Pacific Gas & Electric (464 U.S. at 249), it nevertheless

declined to find a congressional intent to preempt the

punitive damages award.”

Thus, even in cases implicating the decidedly federal

preserve of nuclear safety, the Court has declined to

infer that Congress has so compietely and pervasively

regulated the field as to preempt siate regulation of op-

pressive, fraudulent, or malicious conduct. Silkwood, 464

U.S. at 256. On the contrary, preemption analysis in

matters nuclear would henceforth focus on whether

“there)is an irreconcilable conflict between the federal

and state standards or whether the imposition of a state

standard in a damages action would frustrate the objec-

11 The tort of intentional infliction of emotional distress furthers

the goals typically associated with punitive damage: - punishment,

deterrence, encouragement of suits to redress social wrongs, com-

plete corapensation, and the reaffirmation of societal values. Jn-

tentional Infliction at 54 n. 63.

12 The Court cited Laburnum, 247 U.S. at 663-64, which held

that Congress did not intend ior the federal labor laws to preempt

state causes of action to redress intentional ‘iorts. Silkwood, 464

U.S. at 251,

tives of the federa! law.” Jbid.; see aiso Goodyear

Atomic Corp. v. Miller, 108 S. Ct. 1704, 1712 (1988).

2. The ERA evinces no congressional intent to pre-

empt a claim of intentional infliction of emo-

tional distress.

The district court in this case correctly determined

that Section 210 of the ERA did not purport to regulate

nuclear safety and therefore fell outside the limited

scope of federal nuclear safety regulation determined in

Pacific Gas & Electric to preempt state law. Pet. App.

17a, 18a. The structure of the statute and its legisla-

tive history amply support that judgment. The lower

court also held, however, that Section 210 established a

scheme so pervasive as to leave no room for concurrent

state regulation of intentional infliction of emotional dis-

tress. Id. at 22a-23a. In doing so, it ignored the clear

direction of Silkwood as to the “pervasiveness” of the

federal interest in nuclear regulatiou. It just as clearly

erred in its conclusion that Section 210 “pervasi ely”

regulated nuclear «mployment.”

Section 210 was enacted along with a series of meas-

ures to fund the NRC’s efforts in projects directly con-

cerned with nuclear safety: i.e., nuclear reactor regula-

tion; the development of low level radiation standards

and nuclear materials safety and safeguards; and re-

search into improved safety systems, the health effects of

low level ionizing radiation, and safe disposal of nuclear

waste. Pub. L. No. 95-601, 92 Stat. 2947-51. Sec-

tion 2i0, however, was set apart from the safety-ori-

ented provisions with its own heading: “Employee Pro-

18 Rather than address the purposes that animated Congress, the

district court simply assumed that the comprehersivenecss of Sec-

tion 210’s provisions supported an inference of preemption. Pet.

App. 22a-23a. This Court has long held, however, that the mere

fact that . statute is comprehensive is not sufficient to support an

inference of preemption. R.J. Reynolds Tobacco Co. v. Durham

County, 107 S. Ct. 499, 512 (1986); Hillsborough Coun*y v. Auto-

mated Med. Laboratories, 471 U.S. 707, 717 (1985).

tection.” Jd. at 2951. According to the Senate Report

on the Act, the provision was expressly designed to

“offer[] protection to employees who believe they have

been fired or discriminated against »s a result of the

fact that they have testified, given evidence, or brought

suit under [the ERA] or the Atomic Energy Act.” S.

Rep. at 29, reprinted in 1973 U.S. Code Cong. & Admin.

News at 7303. As if to underscore just how remote on-

gress’s intent in enacting Section 210 was from the rav io-

logical safety concerns of the companion provisions of the

ERA, Congress delegated the task of enforcing Section

210 to the Secretary of Labor—not to the NRC. 42 U.S.C.

§ 5851(b) (1).

The Senate Report also makes clear that the origins of

Section 210 lie in areas not even vaguely connected with

matters nuclear. In fact, the Section “is substantially

identical to provisions in the Clean Air Act and the Fed-

eral Water Pollution Control Act,” and “t]he legislative

history of those acts indicated that such provisions were

patterned after the National Labor Management Act and

a [subsequent and] similar provision in Public Law 91-

173 relating to the health an¢ safety of the Nation’s

coal miners.” S. Rep. at 29, reprinted in 1978 U.S.

Code Cong. & Admin. News at 7303.

The ultimate source of Section 210, then, is the so-

called “National Labor Management Act,” a statute that

does not exist but is presumably an ama'gamated refer-

ence to the National Labor Relations Act of 1935, 29

U.S.C. § 151 et seg. (“NLRA”), and the Labor Manage-

ment Relations Act of 1947, 29 U.S.C. §141 et seg.

(“LMRA”), which amended the NLRA. Sc: Norris v.

Lumbermen’s Mutual Casualty Co., 881 F.2d 1144, 1147

(1st Cir. 1989) (repeating misnomer but citing 29

U.S.C. § 158). In fact, the language of Section 210 is

virtually identical to the NLRA language in 29 U.S.C.

§ 158(a) (4), which makes it an unfair labor practice

for an employer to discriminate in employment terms

and conditions against an employee because that em-

pioyee has filed an unfair labor practice charge or given

testimony in an unfair labor practice proceeding before

the NLRB—+.e., a whistleblower.’*

The remedial structure of t'1e two whistleblower pro-

visions also confirms that both were primarily conceived

as labor-protective measures. They prescribe parallel ad-

ministrative procedures before agencies charged with im-

plementing labor policy: for whistleblowers under the

LMRA, before the NLRB, 29 U.S.C. § 160; for nuclear

whistleblowers, before the Secretary of Labor, 42 U.S.C.

§ 5851(b) (1). In each case, complaints alleging retalia-

tory discrimination must be filed within a short time

period after the alleged violation takes place: for

whistleblowers under the LMRA, six months, 29 U.S.C.

§160(b); for nuclear whistleblowers, thirty days, 42

U.S.C. § 5851/b) (1). In both instances, the administra-

tive agency has limited authority to redress a complain-

ant’s injuries. The NLRB can order a discriminating

employer tc cease and desist from its discrimination and

“to take such affirmative action including reinstatement

of employees with or without back pay, as will effectuate

the policies of this subchapter.” 29 U.S.C. § 160(c).

14 Title 29 U.S.C. § 158(a) provides as follows:

It shall be an unfair labor practice for an employer—.. .

(4) to discharge or otherwise discriminate against an employee

because he has filed charges or given testimony under this

subchapter.

As embellished in 29 U.S.C. § 158(a) (3), the use of the term “dis-

crimination” in § 158(a) (4) is to be understood as “discrimination

in regard to hire or tenure of employment or any term or condition

of employment.”

The pertinent part of Section 210, with the 29 U.S.C. § 158(«) (4)

language italicized, provides as follows:

No employer ... may discharge any employee or otherwise

discriminate ayainst any employee with respect to his compen-

sation, terms, conditions, or privileges of employment because

the employee [has commenced a proceeding under the AEA or

testified in such proceeding].

42 U.S.C. § 5851(a).

Similarly, the Secretary of Labor can order a discrimi-

nating nuclear employer to abate its discrimination and

to “reinstate the complainant to his former position to-

gether with the compensation (including back pay),

terms, conditions, and privileges of his employment.” 42

U.S.C. § 5851(b)(2)(B). In addition, the Secretary

“may” order the violator “to provide compensatory dam-

ages to the complainant.” Jbid. Neither the NLRB nor

the Secretary, howeyer, is authorized to award a com-

plainant punitive damages. Russell, 356 U.S. at 646

(NLRB) ; Pet. App. 21a (Secretary).

Given Congress’s express declaration that Section 210

of the ERA was modeled on the NLRA, as amended by

the LMRA, and given the close similarity between the

remedial provisions of Section 210 and the analogous re-

medial provisions relating to unfair labor practices, it

must be presumed that in enacting Section 210, Congress

did not intend to reguiate employment discrimination in

the nuclear field more vervasively that it had in the fed-

eral labor laws regulating employment in other indus-

tries affecting commerce. As this Court made abun-

dantly clear in Farmer and related cases (see supra

pages 11-15), neither the NLRA nor the LMRA evinces

a congressional intent to preempt a cause of action for

the intentiona: infliction of emotional distress. These

cases make similarly clear that Congress did not intend

such preemption in Section 210 of the ERA.”

15 When Congress expressly models one remedial labor statute on

another, this Court’s interpretation of the one has consistently been

informed by its decisions under the other. See, e.g., Leedom v. Kyne,

358 U.S. 184, 189-91 (1958) (whether NLRA extinguished juris-

diction to enforce statutory right or remedy to be decided under

precedent of Railway Labor Act [“RLA”]); see also Trans World

Airlines v. Independent Federation of Flight Attendants, 109 S. Ct.

1225, 1230 (1989) (“careful'y d:awn analogies from the federal

common labor law developed under the NLRA may be helpful in

deciding cases under the RLA”).

B. Preemption Of The State Claim Presented Would

Impermissibly Eliminate Or Curtail A Remedy For

The Victims Of Intentional Torts.

Silkwood declined to infer from congressional silence

an intent to preempt state law remedies for personal

injuries from radiation because the Court found it “diffi-

cult to believe that Congress would, without comment,

remove all means of judicial recourse for those injured

by illegal conduct.” Silkwood, 464 U.S. at 251. More

recently, in reaffirming Silkwood, the Court reiterated

its reluctance to infer the preemption of state law reme-

dies, concluding that such remedies exert only “inci-

dental regulatory pressure” on the federal interest in

nuclear regulation. Goodyear Atomic Corp., 108 S. Ct. at

1712. This reluctance extends not just to the elimination

of a state remedy but also to the curtailment of such

remedies. See. Laburnum, 347 U.S. at 666-67. Thus, in

Russell, 356 U.S. at 641-42, and in Laburnum, 347 U.S.

at 663-64, this Court held that the NLRB’s inability to

award monetary relief (other than back pay) or puni-

tive damages counseled against, rather than for, preemp-

tion of state-sanctioned causes of action permitting such

awards.

The decisions below work precisely the sort of curtail-

ment that this Court refused to countenance in Silkwood,

Russell, and Laburnum. If Section 210 were to preempt

state remedies for intentional infliction of emotional dis-

tress, petitioner would be deprived of a significant por-

tion of damages available to her under state law, and

other nuclear employees would be deprived of any rem-

edy for the kind of “outrageous” misconduct alleged

here. Petitioner would be deprived of punitive damages

because the Secretary of Labor has no authority to

award such damages. Pet. App. 21a. Silkwood precludes

that result. Petitioner’s right to compensatory damages

would also be impermissibly diminished. Although Sec-

tion 210 permits the Secretary of Labor to award com-

pensatory damages to an aggrieved whistleblower, that

award is purely discretionary. See 42 U.S.C. § 5851(b)

(2) (B) (the Secretary “may” order the employer to pro-

vide compensatory damages to the complainant) ; @

C.F.R. § 24.6 (b) (2) (the Secretary “may, where deemed

appropriate, order the party charged to provide compen-

satory damages to the complainant”). Russell and

Laburnum preclude that impact.

Some nuclear employees would suffer even greater de

rivation. Section 210(g) makes the news s mabe 4

under Section 210(a)-(b) unavaila’» to :n employee

who has deliberately caused a violation of a :iuclear safety

requirement, even if the employer’s retaliatory actions

are unrelated to that violation. 42 U.S.C. § 5851(g).

Preemption of state law remedies for intentional tor-

tious conduct like the intentional infliction of emotional

distress would leave such employees without any remedy,

no matter what outrageous conduct (short of outright

criminal conduct) their employer might inflict on them.

There is no indication that Congress intended such a re

sult ; and any such intent is unlikely in a statute de

signed to “offer[] protection to employees.” S. Rep. at

— in 1978 U.S. Code Cong. & Admin. News

a \

Il. STATE REMEDIES FOR THE INTENTIONAL IN-

FLICTION OF EMOTIONAL DISTRESS NEITHER

INTEPFERE NOR CONFLICT WITH THE REME-

DIES PROVIDED BY THE ERA.

As demonstrated above, the state interest in providing

protection against and redress for the intentional inflic-

tion of emotional distress lies at the periphery of the

federal interest in prohibiting discrimination in the

workplace. Farmer, 430 U.S. at 302. Moreover, Section

210 and its legislative history manifest no sugp<stio:

that federal protection for nuclear whistleblowers was to

be pervasive.” See supra pages 13-19. Accordingly, the

preemptive reach of Section 210 depends on “whether

there is an irreconcilable conflict between the federal and

state standards or whether the imposition of a state

standard in a damages action would frustrate the objec-

tives of the federal law.” Silkwood, 464 U.S. at 256. Al-

though the district court in this case recited the correct

Silkwood preemption standard, its application of it was

severely flawed.

A. A State Remedy To Redress Tortious Conduct Does

Not Interfere With The Section 210 Remedial

Scheme Recause The State Need Not Resolve Or

Intrude On Issues Of Federal Law Or Policy.

The district court found interference with the federal

interest in this case because it concluded that all but one

of English’s factual allegations supporting her charge of

intentional infliction of emotional distress concerned

“terms, conditions, or privileges of employment” and

therefore were essentially identical to allegations neces-

sary to support a claim under the federal whistleblower

statute. Pet. App. 18a, 28a. Because the lowe: court

failed to focus on the correct factors in its analysis, it

reached the wrong conclusion.

According to this Court, the potential for interference

of state law with federal laws is at a minimum “where

the particular rule of law sought to be invoked before

another tribunal is so constructed and administered that,

in virtually all instances, it is safe to presume that judi-

cial supervision will not disserve the interests promoted

by the federal labor statutes.” Amalgamated Ass’n of

Street, Electric Railway & Motor Coach Employees v.

Lockridge, 403 U.S. 274, 297-98 (1971). A state rule of

law is “constructed and administered” in the requisite

fashion when the state claim at issue is not “identical” to

the federal claim or “substantially dependent” on the ap-

plication or interpretation of a federal statute, standard,

or policy. Caterpillar Inc. v. Williams, 482 U.S. 386, 394-

95 (1987).

In determining whether a state cause of action is

identical to or “substantially dependent upon” federal

law, a court must analyze the legal elements of the

respective controversies—not the factual allegations used

to support those legal propositions. Farmer, 430 U.S. at

805. If the state court controversy can be resolved with-

out addressing or resolving an issue of federal law, cis-

position of the state claim cannot be said to interfere

with the federal cause of action. Ibid. If resolution of

the state and federal claims calls only for consideration

of the same facts, the state claim does not interfere with

the federal claim so as to warrant preemption of it.

Ibid.; see Lingle v. Norge Division of Magic Chef, In-.,

108 S. Ct. 1877, 1883 (1988).

This Court held in Farmer that the respective contro-

versies to be decided in a state claim of intentional in-

fliction of emotional distress and a federal claim of dis-

crimination in employment are sufficiently distinct to

at 303-04. It so held pecause neither adjudicating forum

would resolve legal issues that were the province of the

other. Jd. at 304-05. Because none of the legal issues in

an intentional infliction of emotional distress claim

would be part of a Section 210 discrimination proceed-

ing—and vice versa—the claims are not identical.* For

example, a Section 210 action would not require proof

that a nuclear employer intentionally engaged in “out-

rageous” conduct or that a nuclear employee suffered

“extreme” emotional distress as a result of that conduct.

On the other hand. a state tort claim would not involve

consideration of whether the plaintiff had commenced or

otherwise participcted in an enforcement action under

the ERA or the AEA or had suffered discrimination in

employment terms and conditions as a result of those

efforts (see 42 U.S.C. § 5851(a) ).

16 This Court has also held that the tort of intentional infliction

of emotional distress is legally separate and distinct from an ar-

bitrable dispute “ ‘concerning rates of pay, rules, or working con-

ditions’” under the Railway Labor Act. Atchison, T. & S. F. Ry.

Co. v. Buell, 480 U.S. 557, 563 (1987) (quoting 45 U.S.C. § 153

First (i)). Consequently, the Court held that a remedy for such

outrageous conduct, if permitted by the Federal Employer’s Liability

Act, 45 U.S.C. $51 et seq., would not be preempted by the pri-

mary jurisdiction of federal arbitration boards under the Railway

Labor Act. 480 U.S. at 566-71.

Thus, even if a Section 210 claim and a state law

cause of action for intentional infliction of emotional

distress require the consideration of similar facts, the

two controversies are legally distinct. Prosecution of the

state claim, then, cannot be said to interfere with a fed-

eral interest and should not be preempted.'’ See Farmer,

430 U.S. at 305; Lingle, 108 S. Ct. at 1883.

B. Recovery For Intentional Infliction Of Emotional

Distress Does Not Conflict With The Provisions Of

Section 210.

In addition to its faulty “interference” analysis, the

district court found three bases upon which English’s

claim for intentional infliction of emotional distress

created a conflict with the remedial provisions of Section

210: the statute’s “clean hands” provision, 42 U.S.C.

§ 5851 (g); an omission from the statute of an allowance

for punitive damages; and the short thirty- and ninety-

day time limits for filing and adjudicating Section 210

claims, 42 U.S.C. §5851(b)(1). Pet. App. 19a. In

order for such conflicts to warrant preemption, however,

they must be of such seriousness that “it is impossible to

comply with both state and federal law” or “the state

law stands as an obstacle to the accomplishment of the

full purposes and objectives of Congress.” Silkwood, 464

U.S. at 248. Petitioner’s state law tort claim presents no

such difficulties.**

The district court’s first concern was with Section

210’s “clean hands” provision, which bars any federal

relief to an employee who deliberately causes a violation

17In fact, a decision that Section 210 did preempt English’s

state law claim would constitute an obstacle to Congress’s express

purpose to extend additional protection to employees in the nuclear

industry.

18 Hypothetical conflicts between state and federal law are insuf-

ficient as a basis for preemption. California Coastal Comm’n v.

Granite Rock Co., 107 S. Ct. 1419, 1482 (1987). See Rice v. Nor-

man Williams Co., 458 -U.S. 654, 659 (1982) ; Exxon Corp. v. Gover-

nor of Marylwnd, 437 U.S. 117, 130 (1978).

(25

of an ERA or AEA requirement. 42 U.S.C. § 5851(g).

As the court understood it, the provision was designed to

aeny Section 210 relief even to those nuclear facility

workers who committed a violation “not even remotely

related to that on which [the complainant] blew the

whistle.” Pet. App. 20a. The court concluded that it

would be inconsistent to permit those expressly excluded

from Section 210 relief by Congress to pursue a remedy

under state tort law. Jd. at 21a.

In reaching this conclusion, however, the district court

overlooked the interrelationship between the “clean

hands” limitation and the specific remedial duties of the

Secretary of Labor under Section 210(b). If the Secre-

tary determines that a complainant has suffered unlaw-

ful discrimination under Section 210(a), the Secretary

“shall” order the violator to “reinstate the complainant

to his former position.” 42 U.S.C. § 5851(b) (2)(B).

Thus, the purpose of the “clean hands” provision is to

deny the remedy of reinstatement (with back pay) that

might return a known safety violator to work with

radioactive materials. This understandable limitation

can have no bearing on the availability of a damages

remedy for the legally distinct tort of the intentional

infliction of emotional distress. State remedies for inten-

tional torts in general and this tort in particular are

restricted to recovery of damages; they do not include a

remedy such as reinstatement. See Belknap, 463 U.S. at

510 (federal interest not implicated because state court

cannot order reinstatement as remedy for intentional

tort of misrepresentation); see also supra at 9 n.5.

Thus, nothing a nuclear employee with “unclean hands”

could hope to recover in an intentional tort suit could

create an obstacle to the achievement of the congres-

sional purpose behind Section 210(g).

The district court’s second concern was the omission

of any provision for punitive damages for a Section 210

complainant. Pet. App. 21a-22a.% Just last term, how-

ever, this Court reaffirmed the principle that “state

causes of action are not preempted solely because they

impose liability over and above that authorized by fed-

eral law.” California v. ARC America Corp., 109 S. Ct.

1661, 1667 (1989). Further, there is no inconsistency

between a statute designed to benefit employees and a

state punitive measure ag‘.inst employers.

Moreover, as this Court has recognized, punitive dam-

ages have long been a part of traditional principles of

state tort law. Silkwood, 464 U.S. at 255. Displacement

through preemption of a State’s punitive damages remedy

will not be inferred simply because a particular con-

gressional enactment is silent on the subject. Jd. at 251.

In permitting punitive damages in suits for intentional

infliction of emotional distress, the State of North Caro-

lina has made the judgment that those who engage in

extreme and outrageous conduct must not only com-

pensate their victims for their distress but should pay

an additional sum to deter them and others from such

conduct. Preemption of petitioner’s claim would elim-

inate any state punishment for those who commit out-

rageous and intentional misconduct, without offering a

federal substitute to satisfy the punitive function. For

just such reasons, this Court has held that the NLRB’s

lack of authority to award punitive damages militates

for, rather than against, the availability of this ‘“well-

established form of relief” in state law cases. Russell,

356 U.S. at 646.

Finally, the district court found a potential conflict in

Section 210’s strict thirty-day time limit for bringing

discrimination charges. The court assumed that this

provision was intended to promote a prompt filing of such

claims; prompt filing, in turn, would lead to prompt

reinstatement of the injured employee and to the prompt

discovery of nuclear hazards. Pet. App. 22a. As the

19 Section 210 does, however, provide for an exemplary damages

award to the Sec -tary of Labor if the Secretary successfully sues

to enforce an order under the statute. 42 U.S.C. § 5851(d).

court saw it, allowing a claim like English’s to languish

for the longer state limitations period would compromise

the federal interest in fast correction of nuclear safety

violations. Jbid.

The district court’s concerns are based on a serious

misperception of the nature of Section 210. First, be-

cause reinstatement is not one of the available remedies

for intentional infliction of emotional distress, an ag-

grieved whistleblower has every possible incentive to pur-

sue reinstatement under Section 210. Second, a retalia-

tion claim under Section 210 does not trigger a report of

hazardous conditions to the NRC. Rather, the report of

such hazardous conditions—and subsequent retaliation

for such reporting—triggers the remedial provisions of

Section 210. Section 210’s time limits, then, have no

direct relation to the promptness with which nuclear haz-

ards are reported.

The existence of differing time schemes for pursuing

a Section 210 claim and an action for infliction of emo-

tional distress therefore constitutes a distinction with-

out significance—not a conflict. State intentional tort

claims have traditionally coexisted with federal admin-

istrative schemes with shorter limitations periods. See,

e.g., 29 U.S.C. §160(b) (six-month limitations period

for filing unfair labor practice charges with the NLRB).”

C. The Courts Are Amply Equipped To Eliminate Any

Incidental Effects Of A State Remedy For Inten-

tional Infliction Of Emotional Distress On The

Federal Interests Manifested In Section 210.

This Court has repeatedly reaffirmed its faith in the

ability of state and federal courts to administer common

law remedies and to fashion their procedural rules in

ways that are respectfui of federal administrative con-

cerns. In Linn, for example, the Court indicated its con-

2° Moreover, as discussed below, the shorter federal limitations

periods in Section 210 can actually be expected to prevent inter-

ference with the federal scheme. See infra page 28.

28 29

fidence that a court hearing a defamation claim under | CONCLUSION

state law could, through jury instructions, ensure that For the foregoing reasor.s, the judgment of the court of

speech that was protected under federal law in the con- | appeals should be reversed.

text of a labor dispute would be distinguished from ;

actionable malicious libel under state law. 383 U.S. at Respectfully submitted,

64-65. Farmer similarly recognized that a jury instruc-

tion could ensure that damages awarded for the inten-

tional infliction of emotional distress would not include ae a —

damages traceable to employment discrimination—a mat- STEVEN K. HOFFMAN STATE AND LOCAL

ter in the preserve of the NLRB. 430 U.S. at 306. The BRADLEY M. CAMPBELL LEGAL CENTER

Court expressed faith that the courts would meet their ROGOVIN, HUGE & SCHILLER = 4.44 North Capitol St., N.W.

“responsibility in cases of this kind to assure that the 1250 24th Street, N.W. Suite 349

damages awarded are not excessive.” Ibid. ana 20087 Washington, D.C. 20001

There is no reason to believe that federal and state Of Counsel pag) +l for the

courts in North Carolina and else where do not have the March 8, 1990 Atateh Contes

tvols or will not exercise their responsibility to admin-

ister remedies for intentional infliction of emotional dis-

tress so as to remove any incidental effects on or con‘lict

with Section 210 proceedings. Evidentiary rulings and

instructions to the jury can ensure that a state recovery

is not based solely on employment discrimination against

a nuclear whistleblower. See Farmer, 420 U.S. at 306;

Restatement (Second) of Torts § 46(1) comment h (the

court decides as a matter of iaw whether conduct is

sufficiently “outrageous”). Moreover, the shorter limi-

tations periods for the federal action means that the

federal administrative adjudicator will almost invariably

proceed first, thereby allowing courts to apply rules of

issue preclusion to bar relitigation of distinctly federal

issues in state claims. See University of Tennessee v.

Elliot, 478 U.S. 788, 797 (1986) (“[I]t is sound policy to

apply principles of issue preclusion to the factfinding of

administrative bodies acting in a judicial capacity’).

Thus, it is well within the traditional powers exercised

by courts to ensure that adjudication of claims for the

intentional infliction of emotiona! distress will not have

even incidental effects on the federal interest in protect-

ing nuclear whistleblowers.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.