Opposition Brief — Harris v. Hirsh

No. 94-1097

IN THE |

Supreme Court of the United States

OCTOBER TERM, 1994

>

JOAN V. HARRIS,

Pe fitioner,

PAUL HIRSH,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO THE

NEW YORK COURT OF APPEALS

RESPONDENT'S BRIEF IN OPPOSITION

RICHARD K. BERNARD CHARLES S. SIMS

CAROL S. BARNETT (Counsel of Record)

METRO-NORTH COMMUTER WENDY H. SCHWARTZ

RAILROAD JEFFREY M. LUBELI

347 Madison Avenue PROSKAUER ROSE GOETZ

New York, New York 10017 & MENDELSOHN

(212) 340-2537 1585 Broadway

New York, New York 10036

(212) 969-3475

Attorneys for Re spondent

January 19, 1995

Pes hy

= * ee

QUESTIONS PRESENTED

An employee’s defamation suit concerning a supervisor's

alleged accusation in the course of a workplace investigation

was held preempted by the federal Railway Labor Act ("RLA’).

1. Where petitioner proposed to meet her evidentiary

burden with proof that her supervisor's conduct contravened

the collective bargaining agreement covering her employment,

is petitioner's claim correctly held preempted under even the

narrowest interpretation of preemption under the Lueck/Lingle/

Hawaiian Airlines standard, such that this case presents no

issue worthy of this Court’s review?

2. Should this Court accept this case to test the outer

parameters of federal labor preemption, notwithstanding the

absence of any occasion to do so in light of the New York

Court of Appeals’ findings that:

(a) "the jury here was required to specifically determine

whether defendant’s conduct was qualifiedly privileged under

the labor contract and whether he exceeded the scope of that

privilege";

(b) "plaintiff's theory that defendant's reliance upon his

own observations here constituted malice could well be seen

as unsustainable in light of the terms of the agreement which

permit such conduct";

(c) the jury's verdict "trespassed upon the exclusive

authority of the adjustment board to determine the manner in

which an employer may enforce company policies”;

(d) “plaintiffs tort action constituted a preempted ‘dis-

guised’ contract claim"; and

(e) "[t]he risk to be avoided by the provisions for the

board’s exclusive jurisdiction — that a State court ruling may

be inconsistent with a Federal adjustment board determination

on the same employment issue — is present here”?

6

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............0.002005.

PE GPEUUEEEED cs vcccccccinencevegecess iii

COUNTER-STATEMENT OF THE CASE ............. 1

DCC rchasveseveNvecestnecncedeesees 2

Se) er CUED CUUIUT 5 ccc cevecccsecsverces 3

REASONS FOR DENYING THE WRIT .............. 7

A. The Court of Appeals Considered and Its

Decision is Fully Consistent With Hawaiian

ie ces base che dee vs ba 7

B. This Case Will Not Resolve Any Perceived

Circuit Conflict As Petitioner’s Claim Is

Preempted Regardless Of The Outer Parameters

of the Lueck/Lingle Standard ................ 14

Tess hike ees oenwe el de dcsecoensees 21

TABLE OF AUTHORITIES

CASES

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) ... passim

Anderson v. American Airlines, Inc.,

ee 8 Brrr ey re reer 13

Angio-Medical Corp. v. Eli Lilly & Co.,

720 F. Supp. 269 (S.D.N.Y. 1989) ................ 17

Bagby v. GMC,

ee er rr errr 15

Barbe v. Great Atl. & Pac. Tea Co.,

722 F. Supp. 1257 (D.Md. 1989),

aff'd, 940 F.2d 651 (4th Cir. 1991),

om. dial, US.

Bee POE 6c koh od osc udeeenddeheek en 15

Beard v. Carrollton R.R.,

OFS F.26 117 Gs Civ. 19GB) iw. ccc ccc cvees 12

Caterpillar Inc. v. Williams,

GRU TI ok ook cee 19, 20

Consolidated Rail Corp. v. Railway Labor Executives’ Ass’n,

SPE SN BPE ceed eer ackttencessekvocesas 2

Davies v. American Airlines, Inc.

971 F.2d 463 (10th Cir. 1992),

cert. denied, US. __,

ee Oe oo nde nsbaksecaceleseeens 13

DeCoe v. GMC,

32 F.3d 212 (6th Cir. 1994) ............... 15, 16, 20

ee ee ee ee)

iv

Edelman v. Western Airlines, Inc.,

892 F.2d 839 (9th Cir. 1989) ...... 2. eee eee eee 1Z

Greene v. Alberie,

150 Misc. 2d 306 (Sup. Ct. Suffolk Co. 1991) ....... 17

Gully v. First Nat'l Bank,

299 US. 109 (1936)... ccc ccc ccc c ee esccccnces 20

Hawaiian Airlines, Inc. v. Norris,

__ US. __, 114 S. Ct. 2239 (1994) ........... passim

Henegar v. Banta,

27 F.3d 223 (6th Cir.),

cert. denied, _ US.__,

No. 94-503, 1994 WL 528130 (1994) ......... 12, 16, 20

Horton v. Liberty Mutual Ins. Co.,

367 US. MAB (1961). ccc rc ccc reenecvcones 8

Johnson v. United States,

BIB US. TO CIGGH) on ccccccvccevccevnseevceses 8

Lent v. Huntoon,

143 Vt SOP TIGER) . cc ccc cece wcescseveceeese 17

Liberman v. Gelstein,

GO N.Y.2d 429 (99D) nn ccc ccc ccccceccssecces 4, 16

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

406 US. FIO (ISER). nn cece cccccccrcnveces passim

Livadas v. Bradshaw,

US, 6S CE ND os cnc ces, 10

Local 174, Teamsters v. Lucas Flour Co.,

WO US. WED cccccaccossevstvgnceevsss 17, 18

Vv

Maher v. New Jersey Transit Rail Operations, Inc.,

125 NJ. GB (NY. 2998) nc cc cccccccccccesescces 13

McCormick v. AT&T Technologies, Inc.,

934 F.2d 531 (4th Cir. 1991),

cert. denied, US. __,

133 & CR CERNE ken cocccccsvessveeueeee 15

Melanson v. United Airlines, Inc.,

931 F.2d 558 (9th Cir.),

cert. denied, US. __,

132 DS. CR SGP GUE oc cseceescecesdetapenvess 12

Mock v. T.G. & Y. Stores Co.,

971 F.2d S22 (20th Cir. 1992)... ccc cccccsvvcs 15, 20

Norwood v. City of New York,

203 A.D.2d 147 (ist Dep’t),

appeal dismissed without op., 84 N.Y.2d 849 (1994) ... 17

O’Brien v. Consolidated Rail Corp.,

972 F.2d 1 (ist Cir. 1992),

cert. denied, US.__,

123. Ce COR COD cs ca vwodwcaveuseeeeeee 13

O'Shea v. Detroit News,

ae tf fy ie &) Beeveeirery Try 20

Pennsylvania R.R. v. Day,

S00 US. SEB CUT) oe aden dusenewiedewnteeias 18

Railway Labor Executives’ Ass'n v. Port Authority Trans-Hudson

Corp.,

695 F. Supp. 124 (S.D.N.Y. 1988),

injunction dissolved,

eB) eee re 2,3

ee eed a

ais EOP Cin ha

OS nk cele

vi

Rayner v. Smirl,

873 F.2d 60 (9th Cir. 1989) ...... 0... cc eee eee. 19

Republic Steel Corp. v. Maddox,

EE becdwavdnnenedh cae vevewaes 10

Skinner v. Railway Labor Executives’ Ass’n,

Ce a, SE on bvéecveceae ceuaseusneses 2

St. Paul Mercury Indem. Co. v. Red Cab Co.,

SF Ga PEED Wn ccneecsenseccseeeasnevees 8

Strada v. Connecticut Newspapers, Inc.,

PR SEED bac eercddddersdecesenses 17

Tisdale v. United Ass’n of Journeymen & Apprentices, Local 704,

Pe SURG BOUND ono éocceubsevessaca 20

United Ass'n of Journeymen & Apprentices,

Local No. 57 v. Bechtel Power Corp.,

834 F.2d 884 (10th Cir. 1987),

cert. denied, 486 U.S. 1055 (1988) ................ 20

Whitely v. Warden,

SS NER vncdseobe ss deneuyetuseceeel 8

STATUTES

SPE Sat hcewessddetdieccdduune ves 5, 19, 20

re re rere te Per er foyer rn 1

OTHER AUTHORITIES

Restatement, Second, Torts (1977) ................4.. 16

4

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1

COUNTER-STATEMENT OF THE CASE

Petitioner was employed by Metro-North Commuter

Railroad, and the terms and conditions of her employment

were governed by a collective bargaining agreement. (Petition

Appendix ("Pet.") 1a) On July 16, 1986, petitioner’s department

head, respondent Hirsh, called petitioner into his office to dis-

cuss her work performance. (Pet. la-2a) He suspected

petitioner was using drugs because he had seen her acting

erratically and had previously observed her give an "incoher-

ent” answer to a co-worker. In the presence of her two

immediate supervisors, respondent inquired whether petitioner

had a problem and whether she was taking drugs. (Pet. 2a)

Although petitioner quickly persuaded respondent that she did

not use drugs, and he did not take any action whatever

against her, petitioner nonetheless sought redress through the

grievance procedures set out by her collective bargaining

agreement, and also brought this action for common-law

defamation, which respondent unsuccessfully moved to dis-

miss on the jurisdictional ground that it was preempted by the

mandatory arbitration provisions of the Railway Labor Act, 45

U.S.C. § 151 et seq. ("RLA"). (Pet. 2a-3a)

Eight years later — after a full trial in which the jury "had

to second guess whether respondent Hirsh conducted the

investigation of petitioner within the dictates of the labor

agreement” (Pet. 8a) on its way to a verdict for petitioner of

$1.2 million — the New York Court of Appeals agreed with the

intermediate appellate court and affirmed dismissal of the

action, concluding that petitioner's defamation claim was

essentially a “disguised contract claim” (Pet. 9a) and was thus

preempted by federal labor law. (Pet. 8a-9a)

A. The Facts

The grievance that formed the basis for this action arose

when respondent Hirsh, pursuant to his duties with respect to

"Rule G" — an industry-wide rule prohibiting substance abuse’

— called petitioner into his office to question her about deterio-

rating performance he had directly observed (Pet. 1a-2a, A 362-

69), and to determine whether she had a problem for which

she might receive help from Metro-North’s Employee Assis-

tance Program ("EAP").’ As a supervisor in the Transportation

Department, Hirsh was required to enforce Rule G, which

included informing his subordinates about Rule G and Metro-

North’s substance abuse policy and the availability of EAP for

help with substance abuse and other problems that might

affect an employee’s work performance. (A 428-29)

It is longstanding industry practice to rely upon superviso-

ry observation as a means of enforcing Rule G.’ At Metro-

North, this practice is embodied in a written substance abuse

policy (A 50) that is part of the collective bargaining agreement

' See generally Consolidated Rail Corp. v. Railway Labor Execu-

tives’ Ass’n, 491 U.S. 299, 314-15 (1989) ("Conrail").

2

"A__" refers to page numbers of the Appendix

submitted in the Court of Appeals.

> See, e.g., Conrail, 491 U.S. at 315 (Conrail relied "chiefly on

supervisory observations to enforce Rule G"); Skinner 0.

Railway Labor Executives’ Ass’n, 489 U.S. 602, 607-08 (1989) (Rule

G is "enforced, in various formulations, by virtually every

railroad in the country"; prior to the use of drug testing, rail-

roads "rel[ied] or. observation by supervisors and co-workers

to enforce the rule"); Railway Labor Executives’ Ass’n v. Port

Authority Trans-Hudson Corp., 695 F. Supp. 124, 126-27 (S.D.N.Y.

1988) (practice at PATH and Metro-North is to enforce Rule G

by "supervisory observation”), injunction dissolved, 759 F. Supp.

1019 (1990).

; 3

("CBA") between Metro-North and petitioner's union.‘ The

Metro-North policy provides that Rule G is to be enforced in

part by supervisory observations of performance and behavior

. (A 44), inquiries of employees (A 41), and confidential reference

to EAP of employees suspected of having a substance abuse

problem. (A 41)

| Respondent, a manager with 20 years’ experience, made

certain firsthand observations of petitioner, among them seeing

; her in a state that he considered incoherent and that one of

her own witnesses characterized as “babbling.” (A 596)

Respondent reviewed his concerns with two other supervisors,

who had a different view (although none of the three could be

certain), and only then called petitioner into a meeting with

those two supervisors to inquire whether she had a problem

that might be aided by Metro-North’s EAP. Drugs were men-

tioned only when petitioner repeatedly asked respondent what

problem he thought she had. (A 543-44) No one else was

present, and respondent made no announcement in the

workplace concerning the meeting.

B. The Proceedings Below

(a) Lower Court Proceedings: Following discovery, respon-

dent moved for summary judgment on the ground that, inter

alia, his alleged statement was qualifiedly privileged under

New York common law and that petitioner could not prove

malice sufficient to overcome the privilege. The trial court

granted that motion, but the Appellate Division reversed and

remanded, holding that petitioner had presented sufficient

evidence to raise a jury question as to whether respondent

had abused the qualified privilege. (Pet. 18a) ("Harris I).°

‘ See Railway Labor Executives’ Ass'n v. Port Auth. Trans-

Hudson Corp., 695 F. Supp. at 126-27.

5

As was argued to the appellate courts after trial, in an issue

to be resolved on remand should this Court reverse the judg-

ment below, that decision took an unduly broad view of

(continued...)

aia ia all

4

Respondent then moved — still prior to trial — to dismiss

the action on the ground that the claim was a dispute subject

to RLA preemption. The trial court denied that motion.

Petitioner had opposed the summary judgment motion by

promising to prove at trial, inter alia, that Hirsh "did not follow

company policy" in making his alleged accusation, and that his

"behavior . . was an arrogant abuse of his power as a supervi-

sor.... It was reckless in the extreme to make such accusa-

tions without legitimate grounds.” (A 56) Then, in opposition

to the preemption motion, petitioner promised (A 184) that to

support her claim that respondent acted with malice,

[she would] present the following evidence to show

that the defendant acted with reckless disregard of her

rights: ... [that Hirsh] made accusations without

possessing significant training or experience which

would enable him to make such a determination; [and]

contravened his company’s own policies... .

——_

*(...continued)

petitioner's ability to overcome the privilege inconsistent with

the New York Court of Appeals’ decision in Liberman v.

Gelstein, 80 N.Y.2d 429 (1992), rendered after the decision in

Harns I. Harris submitted no evidence showing that Hirsh

acted out of spite or ill-will, and she explicitly admitted that

she had no reason to believe that Hirsh disliked her prior to or

at the time of the discussion. (A 579-80) Nor could the jury

properly have found, from the only evidence Harris offered —

testimony that he had asked two subordinates for their

opinion as to whether Harris used drugs prior to the July 16,

1986 meeting, and that they had responded that they did not

believe she did (A 371-72; 666-67; 686-88) — that Hirsh knew

that his alleged statement was false, or that he "in fact enter-

tained serious doubt as to” its truth. Liberman, 80 N.Y.2d at

438. As a supervisor with many years of experience in

evaluating employees, Hirsh was entitled to rely upon his own

personal observations of Harris and her work performance.

5

And petitioner fulfilled these promises: at trial, in order to

carry her burden of proving malice, she offered three trial

exhibits, all of which related solely to rights and obligations

under the collective bargaining agreement: (1) the substance

abuse policy itself, which has been deemed part of the collec-

tive bargaining agreement (A 326-26); (2) a letter requesting a

hearing concerning the alleged slanderous statement pursuant

to Rule 52 of her collective bargaining agreement (A 558); and

(3) the letter by which she was subsequently informed that her

position (and others) had been abolished. (A 587-88)

Given the issues and proof at trial, as framed and present-

ed by petitioner, the jury’s verdict can only be understood as

deciding — contrary to Metro-North’s view of its bargained-for

agreement — that Metro-North needed some quantum of suspi-

cion in order to closely question an employee concerning drug

use, even in an informal and private meeting with supervisors.

On appeal from judgment upon the jury's verdict, the

intermediate appellate court held that Hirsh’s motion to

dismiss on grounds of RLA preemption should have been

granted.

(b) The New York Court of Appeals’ Decisions: On peti-

tioner’s appeal to the New York Court of Appeals, respondent

argued that petitioner's claim was subject to the exclusive

jurisdiction of the grievance-to-arbitration provisions of the

RLA, which he urged was broader than the test for preemp-

tion pursuant to Section 301 of the Labor Management

Relations Act ("LMRA"), 29 U.S.C. § 185, set forth by Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06 (1988), and

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). Alternatively,

respondent argued that the claim was —— under the

Lueck/Lingle standard.

The Court of Appeals unanimously affirmed dismissal of

the action. Its opinion invoked the broader RLA standard

subsequently rejected in Hawaiidn Airlines, Inc. v. Norris, __

US. __, 114 S.Ct. 2239 (1994}, but also made clear (see generally

Pet. 8a-9a) that petitioner's claim was preempted even if the

6

Lueck/Lingle standard applied, as it was substantially dependent

on the CBA and indeed was a “disguised contract claim”:

"At the time of the alleged slander, plaintiff was being

interviewed regarding her work performance and her

possible violation of the substance abuse policy. Thus,

the alleged tortious conduct was ‘inextricably inter-

twined’ with a work-related investigation that defen-

dant Hirsh was authorized to undertake by the terms

of the CBA. . .”;

"Adjudication of plaintiff's State tort claim would have

been impossible without reference to conduct governed

by the [CBA] since, in rendering its verdict, the jury

here was required to specifically determine whether de-

fendant’s conduct was qualifiedly privileged under the

labor contract and whether he exceeded the scope of

that privilege";

"In finding that defendant did not have the authority

under the [CBA] to engage in the exchange with plain-

tiff in the manner that he did, the jury had to second-

guess whether defendant Hirsh conducted the investi-

gation of plaintiff within the dictates of the labor

agreement”;

Since "the terms of the Metro-North substance abuse

policy authorize a supervisor to proceed with an

employee substance abuse investigation by relying

‘solely on evidence of . . . personal observations, . . .”

plaintiffs theory that defendant's reliance upon his

own observations here constituted malice could well be

seen as unsustainable in light of the terms of the

agreement wi.ich permit such conduct"; and

"The trial record also supports defendant’s contention

that plaintiff's tort action constituted a preempted

‘disguised’ contract claim . . . plaintiff interjected into

the litigation the claim that she was ‘unjustly treated’

and ultimately ‘forced out’ of her position — matters

7

entrusted to the sole jurisdiction of the adjustment

board under the RLA.”

Petitioner promptly sought reargument when this Court

handed down Hawaiian Airlines two weeks after the decision

of the Court of Appeals. After receiving respondent's opposi-

tion, which demonstrated at length that (as respondent had

earlier argued) the Lueck/Lingle standard was met, the Court of

Appeals denied reargument.

REASONS FOR DENYING THE WRIT

Petitioner has asked this Court to grant the writ and either

(a) vacate and remand for consideration in light of Hawatian

Airlines or (b) resolve a purported "deep-seated conflict” over

the proper scope of federal labor preemption. Neither argu-

ment justifies granting the requested writ. The New York

Court has already had an opportunity to consider whether its

judgment was consistent with Hawatian Airlines, and there is

no conflict insofar as cases such as this are concerned, so that

this case provides no occasion for exploring the conflict

petitioner perceives.

A. The Court of Appeals Considered and Its Decision is

Fully Consistent With Hawaiian Airlines, Inc. v. Norris

1. The New York Court of Appeals has already given "due

deliberation” (Pet. 20a) to petitioner’s argument that Hawaiian

Airlines required reversal of its decision in this case. Thus,

there is absolutely no basis for petitioner's suggestion that this

Court should grant the writ, vacate the judgment below, and

remand for reconsideration in light of Hawaiian Airlines. Doing

so might have been appropriate had the petitioner come

directly to this Court instead of moving the state court for

reargument, but that was not the course petitioner chose.°

6

Plaintiff's motion for reargument was filed on July 9, 1994,

and was met by a brief in opposition on July 22 and additional

letter-briefing. The Court of Appeals had more than two

(continued...)

| oe ee

8

2. In any event, as respondent explained to the Court of

Appeals and as that Courts opinion demonstrates,

respondent's pre-trial motion to dismiss on the jurisdictional

preemption ground was plainly meritorious even under the

Lueck/Lingle standard applied to RLA cases by Hawaiian

Airlines, because the petitioner’s arguments on the motion

made clear that resolution of her claim depended on the reach

of respondent’s authority under the CBA. As petitioner's own

presentation of her claim required interpretation of the CBA,

it is clearly preempted by the settled core of Lueck and Lingle.

Thus, this is not an appropriate case to test the outer reaches

of the Lueck/Lingle doctrine.’

*(...continued)

months to deliberate on the motion for reargument predicated

on Hawatian Airlines before it denied the motion on September

29, 1994. (Pet 20a)

” In this regard, we note petitioner's error in arguing against

preemption by relying upon the jury’s implicit conclusion that

Hirsh acted with either common law or actual malice (see Pet.

13) and upon "facts" that were in sharp dispute and not estab-

lished until the final verdict (see Pet. 3-4). Whether the pre-

trial preemption motion should have been granted should be

analyzed in light of the pleadings and arguments then

available, not by the record later made at a trial that had not

yet occurred (and if the action were properly one for the RLA

adjustment boards, should never have occurred). Cf. Horton v.

Liberty Mutual Ins. Co., 367 U.S. 348 (1961) (diversity jurisdiction

rests on amount which at the outset appears likely to be at

issue); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,

289-90 (1938) (subsequent reduction in amount in controversy

irrelevant to jurisdiction); Johnson v. United States, 333 U.S. 10,

16-17 (1933) (arrest made without probable cause cannot be

justified by fruits of arrest itself); Whitely v. Warden, 401 U.S.

560, 564-65 (1971) (validity of arrest or search warrant turns on

evidence before magistrate at time of application).

(continued...)

9

As Hawatian Airlines reaffirmed, and as Lueck and Lingle

had earlier made clear, "where the resolution of a state-law

claim depends on an interpretation of the collective-bargaining

agreement, the claim is pre-empted.” 114 S.Ct. at 2248 (empha-

sis added); see also Lingle, 486 U.S. at 405-06; Lueck, 471 U.S. at

220.

In Lueck, this Court held preempted an employee's state

law action for bad-faith mishandling of his disability claim. In

that case the manner of handling such claims was not even

expressly addressed in the collective bargaining agreement.

| However, the Court noted that the parties could have bar-

: gained about what would constitute "reasonable performance”

of their obligations with respect to disability claims, and "[t]he

parties’ agreement as to the manner in which a benefit claim

would be handled will necessarily be relevant to any allegation

that the claim was handled in a dilatory manner.” 471 U.S. at

218. The state claim was thus "substantially dependent” upon

analysis of the terms of the collective agreement and was held

preempted. 471 U.S. at 220-21.

’(...continued)

If events at trial are to be considered, we further note that

various "facts" set out in the petition, including petitioner's

description of her use of the CBA at trial as "incidental," are

entirely inaccurate — indeed, the Court of Appeals concluded

that the trial record supported the view that petitioner's claim

was in actuality a disguised contract claim (Pet. 9a), meaning

the contract, ie, the CBA, could not have been incidental.

Petitioner's contention that respondent did not rely at trial on

the Metro-North drug policy embodied in the CBA to defend

against plaintiffs claim is similarly inaccurate (see Pet. 3a), and,

moreover, is beside the point. In contending that respondent

had never read Rule G and did not knowingly rely on it, peti-

tioner herself argued that respondent had acted outside of his

authority, and it was thus petitioner who brought the issue of

the reach of the CBA before the jury. (Pet. 8a)

10

In Lingle, by contrast, the Court concluded that plaintiff's

retaliatory discharge claim was not preempted because

resolution of the claim turned on "purely factual questions"

about conduct and motive that did not require interpretation

of any term of a collective bargaining agreement. 486 U.S. at

407.

Hawaiian Airlines reaffirmed Lueck’s holding that common

law claims against employers arising in the workplace are

preempted where — as here — "the duties the employer owed

the employee . . . were rooted firmly in the collective-bargain-

ing agreement,” or where “any attempt to assess liability ...

inevitably will involve contract interpretation.” Hawatian Air-

lines, 114 S.Ct. at 2247-48 (quoting Lueck, 471 U.S. at 218).*

In the course of implicitly accepting respondent’s argument

that petitioner’s claim was subject to preemption under Lueck,

the New York Court observed that "[t]he substance of [Harris’]

claim is that [respondent] falsely accused her of drug use

during the July 16 meeting and fuiled to comply with the

negotiated policies and procedures governing such inquiries.” (Pet.

8a, emphasis added) Petitioner's claim:

* As petitioner recognizes (Pet. 16), Livadas v. Bradshaw, __

U.S. ___, 114 S. Ct. 2068 (1994), decided shortly before Hawatian

Airlines, likewise emphasized that federal preemption is

required wherever necessary to assure that the purposes of the

labor laws are not frustrated by "state laws purporting to

determine ‘questions relating to what the parties to a labor

agreement agreed, and what legal consequences were intended

to flow from breaches of that agreement,’ Lueck, 471 U.S., at

211, 105 S.Ct., at 1911, or by parties’ efforts to renege on their

arbitration promises by ‘relabeling’ as tort suits actions simply

alleging breaches of duties assumed in collective-bargaining

agreements, id., at 219, 105 S. Ct., at 1915; see Republic Steel

Corp. v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614, 616, 13 L. Ed.

2d 580 (1965).” Livadas, 114 S. Ct. at 2078.

LDR Den eeeT omer rere Te

11

‘in essence and substance’ concerned the application or

interpretation of company rules embodied in Metro

North’s CBA. ... Adjudication of plaintiff's State tort

claim would have been impossible without reference to

conduct governed by the collective bargaining agree-

ment since, in rendering its verdict, the jury here was

required to specifically determine whether defendant's

conduct was qualifiedly privileged under the labor

contract and whether he exceeded the scope. of that

privilege.

(Pet. 8a, citations omitted) The Court then stated, in a finding

congruent with the determination in Lueck, that the jury’s

verdict "trespassed upon the exclusive authority of the adjust-

ment board to determine the manner in which an employer

may enforce company policies” (Pet. 8a), since it would

necessarily inhibit (indeed, preclude) Metro-North from

exercising the very contractual authority it believes it has

under Rule G. To the extent Metro-North’s interpretation of

its authority to have its supervisors question employees about

on-the-job drug use is incorrect, Congress has decreed that it

is an adjustment board under the RLA — and not any jury or

judge — that should decide whether or not Metro-North’s

managers may continue to implement Rule G as respondent

implemented it.

The Court of Appeals’ assessment that resolution of

petitioner's claims depended on the CBA was well-founded.

The centerpiece of petiticner’s opposition to the pre-trial

preemption and summary judgment motions (and at trial) was

her contention that respondent had not followed Metro-

North’s policy, and was not authorized to act as he did. See

pp. 45 above. It should have been apparent to the motion

court that in considering whether petitioner met her burden

of proving malice (fault), the jury would inevitably have to

assess and construe the sccpe of the employer's authority to

question employees as respondent did. The burden of proving

that the respondent acted with either common law or actual

malice rested with petitioner, and she proposed to carry that

\j

12

burden by showing that the respondent "contravened his

company’s own policies" (A 184), i.e., the CBA.”

Other RLA preemption decisions applying the Lueck/Lingle

test, which were cited to the New York Court of Appeals on

the main appeal, confirm that petitioner's claim is preempted

under that standard. See, e.g., Melanson v. United Airlines, Inc.,

931 F.2d 558, 562 n.3, 563 (9th Cir.), cert. denied, US. __,

112 S. Ct. 189 (1991) (claim for fraudulent misrepresentation

preempted under Lingle); Beard v. Carrollton R.R., 893 F.2d 117,

122 (6th Cir. 1989) (claims for intentional infliction of emotional

distress and wrongful interference with contract preempted

under Lingle); Edelman v. Western Airlines, Inc., 892 F.2d 839, 844

(9th Cir. 1989) (variety of tort claims preempted under Lingle).

See also Henegar v. Banta, 27 F.3d 223, 226-27 (6th Cir.) (present-

ed to the Court of Appeals in opposition to petitioner's reargu-

ment motion; defamation claim preempted under Lingle), cert.

denied, __ U.S. ____, No. 94-503, 1994 WL 528130 (1994).

These cases demonstrate that resolution of claims based on

employer statements or actions during a routine investigation

9

Even though petitioner’s union never obtained at the bar-

gaining table a provision limiting the extent to which employ-

ees would be questioned about drug use or informally accused

during questioning absent probable cause, a judgment

upholding the verdict would have precisely that effect and

would essentially prohibit Metro-North from using the con-

tractual authority it believes it has bargained for when dealing

with employees in New York State. Notably, however, and as

discussed in greater detail below (at 17-19), that interpretation

would only apply in New York, meaning that Metro-North

managers in Connecticut could have different authority in

applying Rule G, in contravention of the general federal labor

policy of promoting uniformity in the interpretation of collec-

tive bargaining agreements and the need for uniform substan-

tive standards so that multistate railroads can be efficiently and

safely operated.

13

undertaken pursuant to the terms of a collective bargaining

agreement will typically, if not invariably, require analysis of

whether the statements fell within the parameters of the

employer's authority under the agreement, as was required by

the claim here.” By contrast, the question in Hawaiian

Airlines and in the other retaliatory discharge cases is whether

the discharge was retaliatory independent of any reason or "just

cause” for the discharge under the collective bargaining agree-

ment - i.e., the sole issue is the employer’s motivation, regard-

less of what the CBA allowed. See, e.g., Hawaiian Airlines, 114

S.Ct. at 2248, 2251; Anderson v. American Airlines, Inc., 2 F.3d

590, 596 (Sth Cir. 1993); Davies v. American Airlines Inc., 971 F.2d

463, 466-67 (10th Cir. 1992), cert. denied, _US.__, 113 S.Ct.

2A39 (1993); and Maher v. New Jersey Transit Rail Operations,

Inc., 125 N.J. 455, 472-73, 593 A.2d 750, 758 (N.J. 1991).

Maher, 593 A.2d at 758, which this Court cited with

approval in Hawaiian Airlines, makes the above distinction

clear. In that case, the Supreme Court of New Jersey relied on

Lingle in holding that a claim for disability discrimination was

preempted, while at the same time reaching a different

conclusion for a retaliatory discharge claim based on the New

Jersey whistleblower statute. 593 A.2d at 760 (citations

omitted). The employer’s defense to the discrimination claim

involved the need to comply with a safety rule, and thus

resolution of that claim required interpretation of the collective

bargaining agreement. Maher, 593 A.2d at 763. See also O’Brien

v. Consolidated Rail Corp., 972 F.2d 1, 5-6 (ist Cir. 1992), cert.

denied, _ U.S._, 113 S.Ct. 980 (1993) (cited with approval in

Hawatian Airlines).

As the New York Court of Appeals recognized in denying

reargument, the Lueck/Lingle standard applied in Maher and in

As repeatedly noted, petitioner invoked the CBA in her

papers opposing respondent's motions to dismiss on RLA pre-

emption grounds and for summary judgment on qualified

privilege grounds, contending that Hirsh had acted in contra-

vention of the authority provided by Rule G.

14

numerous other cases easily resolves this case without the

need for further refinement. Here, as in Maher, resolution of

petitioner's claim "depends upon" an interpretation of the

employer's powers under the collective bargaining agreement,

and in

finding that defendant did not have the authority

under the collective bargaining agreement to engage in

the exchange with plaintiff in the manner that he did,

the jury had to second-guess whether defendant Hirsh

conducted the investigation of plaintiff within the

dictates of the labor agreement. In so doing, the jury

necessarily trespassed upon the exclusive authority of

the adjustment board to determine the manner in

which an employer may enforce company policies.

(Pet. 8a) In short, the Court of Appeals’ judgment is fully

consistent with Hawaiian Airlines.

B. This Case Will Not Resolve Any Perceived Circuit

Conflict As Petitioner's Claim Is Preempted Regard-

less Of The Outer Parameters of the Lueck/Lingle

Standard

1. This case does not provide an appropriate occasion to

resolve any perceived conflict concerning the scope of the

Lveck/Lingle standard. Given petitioner’s conceded intention to

meet her evidentiary burden by proving that her supervisor

"co »avened his company’s own policies” and exceeded "his

power as a supervisor" (see pp. 4-5 above), her claim is pre-

empted under the narrowest reading of the Lueck/Lingle

standard suggested by any appellate court.

Indeed, courts applying Lueck and Lingle to RLA and non-

RLA defamation claims by employees against employers based

on work-related speech, both before and after Hawaiian

Airlines, have consistently agreed that such claims are preempt-

ed, because in all such cases the petitioner has the burden of

proving fault and in that regard will usually — as petitioner

promised to do here — contend that the defendant acted outside

15

the scope of any contractually authorized workplace investiga-

tory power. These cases closely parallel the tort claim in Lueck,

since their resolution is "substantially dependent upon analysis

of the terms of" collective-bargaining agreements, 471 U.S. at

220."

"The RLA cases cited to the New York Court of Appeals

holding employee workplace-related defamation claims

preempted are discussed at p. 12 above. The many non-RLA

cases respondent cited to that Court holding similar claims pre-

empted under the Lingle/Lueck standard include DeCoe v. GMC,

32 F.3d 212, 217 (6th Cir. 1994) (defamation claim preempted as

plaintiff's claim presupposed a duty "incompatible with that

established by the CBA"); Mock v. T.G. & Y. Stores Co., 971 F.2d

522, 530 (10th Cir. 1992) (state tort claims, including defama-

tion, preempted under Lingle test where claims arose from

manner in which employer conducted investigation of suspect-

ed employee misconduct); Bagby v. GMC, 976 F.2d 919, 921-22

(5th Cir. 1992) (claims for defamation and intentional infliction

of emotional distress preempted under Lingle where claims

asserted that acts taken pursuant to suspension and investiga-

tion procedures were tortious by the mere fact that other em-

ployees learned of them; cannot use state tort system to

prohibit employers from investigating employee misconduct);

McCormick v. AT&T Technologies, Inc., 934 F.2d 531, 535-37 (4th

Cir. 1991) (claims for infliction of emotional distress stemming

from employer cleaning out employee’s locker preempted

under Lingle because claims could not be determined without

reference to collective bargaining agreement, which governed

employer's authority to take such action), cert. denied, US.

___, 112 S. Ct. 912 (1992); Barbe v. Great Atl. & Pac. Tea Co., 722

F. F. Supp. 1257, 1260-63 (D.Md. 1989) (defamation claim arising

from dissemination of termination letter preempted under

Lingle), aff'd, 940 F.2d 651 (4th Cir. 1991), cert. denied, __ USS.

__, 112 §.Ct. 939 (1992).

| meer ert

(continued...)

16

There is thus no conflict in the circuits with regard to

preemption of defamation claims brought by employees

against managers concerning speech uttered in the course of

workplace investigations. Indeed, none of the cases to which

petitioner approvingly points denies preemption to defamation

claims against managerial employees under either the RLA or

the LMRA. To the contrary, even the Sixth Circuit, to which

petitioner points as having the narrowest, most “claim-cen-

tered" analysis, has twice since Hawatian Airlines held defama-

tion claims like the one here preempted under the Lueck/Lingle

test. See Henegar v. Banta, 27 F.3d at 226-27; DeCoe v. GMC, 32

F.3d at 217.

The reason for this is simple: resolution of virtually all

defamation claims brought by employees against managerial

personnel based on managerial speech arising in the course of

workplace investigations will depend upon whether employer

speech is authorized by the CBA, since the employee-plaintiffs

will in most if not all jurisdictions (and certainly in New

York”) have the burden of proving an unprivileged publica-

tion, ¢.g., fault sufficient to defeat privilege. The claims in such

cases will thus not merely involve historical facts, but rather

will "depend on" the scope of managerial authority afforded in

the collective bargaining agreement.

The burden on plaintiffs to prove fault was recognized by

the authors of the influential Restatement, Second, Torts (1977)

years ago, when they defined the elements of defamation in

§ 558 to include "an unprivileged publication to a third party.”

Whether the cases follow that approach and refer to unprivi-

"(...continued)

Significantly, then, the First, Third, Fourth, Fifth, Sixth,

Eighth, Ninth and Tenth Circuits agree that tort claims such as

that pressed here are preempted under the Lueck/Lingie/

Hawatian Airlines standard.

2 Liberman v. Gelstein, 80 N.Y.2d at 437-38.

17

leged publication as an element of the tort itself,” or whether

they speak in terms of privilege as a defense” is of no mo-

ment, since in all such cases the plaintiff has the burden of

defeating the privilege, once it is found presumptively to apply.

Thus, regardless of the verbal formulation uszd, the result is

precisely the same: plaintiffs in such workplace defamation

ca: *s uniformly shoulder the burden of attempting to defeat

the qualified privilege.

Because New York gives plaintiffs the burden of proving

that the privilege has been exceeded, and because that

allocation will usually (as it did here) lead plaintiffs to prove

that any managerial authority afforded by the CBA was ex-

ceeded or violated (as petitioner comtended below), even the

most resolutely "claim-centered" approach to preemption will

usually, if not invariably, result in preemption, as recognized

by the repeated holdings that employee defamation claims

against managerial employees arising out of workplace investi-

gations are subject to resolution under the RLA grievance

machinery.

2. The standard urged by petitioner has not been applied

in cases like this precisely because it would lead to arbitrary

results in contravention of the bedrock principle of federal

labor preemption — uniformity in the interpretation of collec-

tive bargaining agreements. As this Court first stated in Local

174, Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962) (and quoted

in Lueck, 471 U.S. at 210 and again in Lingle, 486 U.S. at 404):

% See, e.g., Angio-Medica! Corp. v. Eli Lilly & Co., 720 F. Supp.

269, 272 (S.D.N.Y. 1989); Greene v. Alberle, 150 Misc.2d 306, 308

(Sup. Ct. Suffolk Co. 1991). See also Decoe, 32 F:3d at 217 (6th

Cir. 1994) (Michigan law); Strada v. Connecticut Newspapers, Inc.,

193 Conn. 313, 316 (1984); and Lent v. Huntoon, 143 Vt. 539

(1983).

“See, e.g., Norwood v. City of New York, 203 A.D.2d 147 (1st

Dep't), appeal dismissed without op., 84 N.Y.2d 849 (1994).

18

The possibility that individual contract terms might

have different meanings under state and federal law

would inevitably exert a disruptive influence upon both

the negotiation and administration of collective agree-

ments. Because neither party could be certain of the

rights which it had obtained or conceded, the process

of negotiating an agreement would be made immeasur-

ably more difficult by the necessity of trying to formu-

late contract provisions in such a way as to contain the

same meaning under two or more systems of law

which might someday be invoked in enforcing the

contract. Once the collective bargain was made, the

possibility of conflicting substantive interpretation under

competing legal systems would tend to stimulate and

prolong disputes as to its interpretation... .

369 U.S. at 103-04 (emphasis added).

But conflicting interpretations of collective bargaining

agreements is exactly the result that would be obtained were

petitioner's formulation the test for labor preemption. The

"claim-centered” standard as described by petitioner would

remit employees covered by collective bargaining agreements

to adjustment boards in states where “unprivileged publi-

cation” is the verbal formulation used for a defamation claim,

while employees in other states subject to the same agree-

ments with the same standards would nonetheless have

recourse to state courts on state defamation claims. Such an

erroneous distinction has not been adopted by any circuit.

Such disparate results would be particularly unjustifiable

in the context of the RLA, where Congress has emphasized the

importance of uniform substantive standards so that multistate

railroads can be efficiently and safely operated. See, e.g.,

Pennsylvania R.R. v. Day, 360 U.S. 548, 552-53 (1959). In the

RLA context, petitioner's test would also invoke a host of

potential choice-of-law issues because railroad employees often

spend their working time in more than one state, meaning

that preemption could depend on the situs of the tort.

Allowing state law claims in these circumstances would result

19

in exactly the “unpredictable medley of jury determinations,

which Congress, in its quest for national uniformity" has

sought to avoid in the railroad industry. Rayner v. Smirl, 873

F.2d 60, 66 (9th Cir. 1989) (construing the whistleblower

provisions of the Federal Railroad Safety Act to preempt a state

action for wrongful discharge).

In sum, petitioner's proposed standard makes no sense in

the context of this case, has not been adopted in any circuit,

and provides no occasion for this Court to revisit the same

ground it only recently covered in Hawaiian Airlines.

3. Petitioner's citation of cases from the Sixth and Tenth

Circuits at 11-12 of the petition for the spurious proposition

that those circuits take a strictly claim-centered view of LMRA

preemption inconsistent with preemption of defamation claims

ignores the distinction between removal, which bases federal

question jurisdiction on the "well-pleaded complaint rule,” and

preemption, which asks whether resolution of the plaintiff's

case will require interpretation of the CBA (regardless of

whether or not the complaint itself mentions the CBA). As

this Court explained in Caterpillar Inc. v. Williams, 482 U.S. 386

(1987), an employer's invocation of the CBA by way of defense

may be sufficient to warrant a state-court finding of LMRA

preemption even though it is not sufficient to warrant removal

to federal court:

It is true that when a defense to a state claim is based

on the terms of a collective bargaining agreement, the

state court will have to interpret that agreement to

decide whether the state claim survives. But the

presence of a federal question, even a § 301 question,

in a defensive argument does not overcome the para-

mount policies embodied in the well-pleaded complaint

rule — that the plaintiff is the master of the complaint,

that a federal question must appear on the face of the

complaint, and that the plaintiff may, by eschewing

claims based on federal law, choose to have the cause

heard in state court.

482 U.S. at 398-99; see also id. at n. 13.

20

Petitioner ignores the Sixth and Tenth Circuit cases finding

defamation claims involving managerial workplace speech

arising in the course of investigations preempted under the

Lingle/Lueck standard (see Henegar, DeCoe, and Mock, all cited

supra at 15-16), and has not shown that any circuit now

employs her suggested rule except to determine removal.

Indeed, the only Tenth Circuit case cited by petitioner as

allegedly refusing to predicate LMRA preemption on a CBA-

related defense — United Ass‘n of Journeymen & Apprentices, Local

No. 57 v. Bechtel Power Corp., 834 F.2d 884, 889 (10th Cir. 1987),

cert. denied, 486 U.S. 1055 (1988) — decided a removal issue,

relied on Caterpillar, and presents nothing more than a garden

variety application of the familiar well-pleaded complaint rule

of Gully v. First Nat'l Bank, 299 U.S. 109 (1936). More recent

Sixth Circuit decisions than the ones cited by the petitioner

agree that "preemption and removal are related but distinct

concepts. Even ‘the fact that a defendant might ultimately

prove that a plaintiffs claims are pre-empted . . . does not

establish that they are removable to federal court.” Tisdale v.

United Ass'n of Journeymen & Apprentices, Local 704, 25 F.3d

1308, 1311 (6th Cir. 1994) (citing Caterpillar, 482 U.S. at 398).°

Removal principles obviously have no application to the state

court's finding of preemption in this case.

Just last term, the Court noted that "[W]here the resolution

of a state-law claim depends on an interpretation of the

collective-bargaining agreement, the claim is pre-empted.”

Hawatian Airlines, 114 S.Ct. at 2248 (emphasis added), citing

Lingle, 486 U.S. at 405-406, and Lueck, 471 U.S. 202. Nothing in

® To the extent that O’Shea v. Detroit News, 887 F.2d 683 (6th

Cir. 1989) does not purport to hinge on removal principles, it

stands only for the proposition that a proffered CBA-based

defense will not result in preemption where it is irrelevant to

resolution of the claim. In O'Shea, as in Lingle and Hawaiian

Airlines, discussed at pages 9-10 above, the court found that

the relevant issue before the factfinder would be only what

the employer's motivation was, not what the CBA allowed.

21

the petition or the New York Court of Appeals’ decision

suggest any need to revisit this issue.

CONCLUSION

For all the foregoing reasons, the petition for a writ of

certiorari should be denied.

New York, New York

January 19, 1994

Respectfully submitted,

CHARLES S. Sims, Esq.

Counsel of Record

WENDY H. SCHWARTZ, Esq.

JEFFREY M. LUBELL, Esq.

PROSKAUER ROSE Goetz &

MENDELSOHN

1585 Broadway

New York, New York 10036

(212) 969-3000

RICHARD K. BERNARD,

GENERAL COUNSEL

CaROL S. BARNETT, Esq.

METRO-NORTH COMMUTER RAILROAD

347 Madison Avenue

New York, New York 10017

(212) 340-2537