# Amicus Curiae Brief — English v. General Elec. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0851%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 496 U.S. 72 ## Text 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. is 3 . 2 . (i) TABLE OF CONTENTS ST EIEIIED —ccsenssecsraserssnnnssoveceesvecosspeossces ge yy | cn INTEREST OF THE AMICI CURIAE .....................--. EE SETTER INTRODUCTION AND SUMMARY OF ARGU- a cricrncieccnenerenemensapeceseunccecsecces I. 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) 11 iv 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 14 14 16 20 21 3 Vv 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, ee 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 a 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 vi 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 ix 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 x 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, 21 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- 2 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. 3 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 4 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. 5 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 6 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- 7 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 8 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 9 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. 10 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) ; 11 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. 12 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 13 244; 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 14 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- 15 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, 16 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). 17 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 18 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). 19 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”). 20 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) 21 (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