Opposition Brief — Southern Pacific Transportation Co. v. Evans

No. 89-1396

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1989

SOUTHERN PACIFIC TRANSPORTATION COMPANY,

Petitioner,

Vv.

WILLIAM DAVID EVANS,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF CALIFORNIA

SECOND APPELLATE DISTRICT

DANIEL FOGEL*

LESTER G. OSTROV

RICHARD L. ROSETT

MIA DARBONNE FARBER

FOGEL, FELDMAN, OSTROV,

RINGLER & KLEVENS

A Law Corporation

5900 Wilshire Boulevard, 26th Floor

Los Angeles, California 90036

(213) 937-6250

Attorneys for Respondent

WILLIAM DAVID EVANS

* Counsel of Record

BEST AVAILABLE COPY 5

i

COUNTER-STATEMENT OF QUESTIONS

PRESENTED FOR REVIEW

i. Does the Railway Labor Act, 45

U.S.C. §151, et seg., preempt a railroad

employee's statutory cause of action for

employment discrimination in violation of

the California Fair Employment and

Housing Act, Government Code § 12940 et

seq.?

2 Is a statutory cause of action

for employment discrimination in

violation of the California Fair

Employment and Housing Act, Government

Code § 12940 et seg., which exists

independent of and does not require an

interpretation or application of a

collective bargaining agreement,

preempted by the Railway Labor Act, 45

U.S.C. §151, et seq.?

ii

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF QUESTIONS

PRESENTED FOR REVIEW BY THE

Tire . as 6 « © «© «© «© © eo «

TABLE OF AUTHORITIES ........ iv

STATEMENT OF THE CASE. .. «++ « « 2

SUMMARY OF ARGUMENT. ....... . 6

ee ee a

l. SOUTHERN PACIFIC's Petition

Mischaracterizes Plaintiff's

Complaint As One For Common

Law “Wrongful Termination" When

In Fact The Complaint Unequivocally

States A Cause Of Action For

Discrimination In Employment

Based Upon Statute. ...... 9

2. The Petition for Writ of Certiorari

Should Not Be Granted Because

The Issues Presented Have Been

Settled By This Court In Prior

Decisions And No Important Question

Which Has Not Been Settled Is

Presented By the Petition. ... 11

3 The Petition For Writ Of Certiorari

Should Be Denied Because The

Appeal's Decision Below Is Not In

Conflict With The Decisions Of This

i. sk « -« «© «© « «© «© «© « « «

iii

4. The Petition For Writ Of Certiorari

Should Be Denied Because The

Standards For Preemption Enunciated

By This Court Have Been Consistently

Applied By The Lower Courts,

Including The Court Below In The

Ree, Gas tt ltl elect kl lf 26

Cope tle le ek el ltl hUvhMhUcrhhUc RmhlUcrhMhlhcr hh US Sh

le a Pa ere ee

iv

TABLE °F AUTHORITIES CITED

Alexander v. Gardner-Denver Co., 415 U.S.

36, 94 S.Ct. 1011, 39 L.Ed.2d 147

(1974) cocccccccccccessccesceeG, 14, 16

Vv isvi vi

Railroad Co., 406 U.S. 320, 92 S.Ct.

1562, 36 be BG. SE BS CASTS) siccecccsee 23

Ww o.

v. Buel], 480 U.S. 557, 107 S.Ct. 1410,

94 L.Ed.2d 563 (1987)... cccccccces 7, 18

: lee taal “5 Freial

System, Inc., 450 U.S. 728, 101 S.Ct.

1437, 67 L.Ed.2d 641 (1981)..... 7, 19, 20

nw , 482 U.S.

386, 107 S.Ct. 2425, 96 L.Ed.2d 318

(1967) ceessecccsese Se Seseeeesecesecoss 23

.-Di — ; a

v. Continental Airlines, Inc., 372 U.S.

714, 83 S.Ct. 1022, 10 L.Ed.2d 84

(1963) eoccccvccccccvesccese S, 40, aa, A2

~ j Vv - mmu

Railroad, 861 F.2d 33 (2nd Cir.

BGES) coccccescccesescccesceccececees 25

Vv sportatio

Company, 213 Cal.App.3d 1378

CE a ee rere eer ree 4

Fort Halifax Packing Co., Inc. v. Coyne,

482 U.S. 1, 107 S.Ct. 2211, 96

Lele 2 CRON tvcscaccuaans 7, 19, 21

N iv ie C ai

486 U.S. 399, 108 S.Ct. 1877, 100

DMO. 2G GAO (ASGB) cccccccccect?, 19, 21

McAlester v. United Airlines, Inc., 851

F.2d 1249 (10th Cir. 1966) ....0.00..28

V ’

844 F.2d 294 (6th Cir. 1988).........26

650 F.Supp. 641 (S.D. W.Va. 1986)....25

Norm 4 j uri ifi ai , 414

P.26 73 (OGR CAk. LOSS) occ cccscacscees 25

ilwa ,

669 F.Supp. 156 (E.D. Mich. 1987)....27

Vv W ilw

Co., 792 F.2d 576 modified in 811 F.2d

ee ae eee

Walk v. Consoli j ° , 178

Mich.App. 451, 444 N.W.2d 199

PEE CL boc eu eee mead eheaneeee’ 26

STATUTES

Employee Retirement Income Security Act,

29 U.S.C. Section 1001 et seg.......... 20

Fair Employment and Housing Act,

California Government Code Section 12900

SE SEGn cc ccccccccvessesevecesceceseesesead

Fair Labor Standards Act, 29 U.S.C.

SOCEIOR 201 GE BOG co ccccccceevececseces 20

Federal Employers! Liability Act, 45

U.S.C. SOSCAGR SL GE BO sc cccscccetses 19

——————eeO

vi

Labor Management Relations Act, 29 U.S.C.

SOGCLGN 205 Ge Wns vib oe ct vécccccsnnsciae

Railway Labor Act, 45 U.S.C. Section

ADS Ge BBM ccc cccessevecsesececvcesrsessd

Title VII of The Civil Rights Act of

1964, 42 U.S.C. Section 2000e et

No. 89-1396

In the Supreme Court

of the

United States

October Term, 1989

SOUTHERN PACIFIC TRANSPORTATION COMPANY,

Petitioner,

Vv.

WILLIAM DAVID EVANS,

Respondent.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF CALIFORNIA

SECOND APPELLATE DISTRICT

2

STATEMENT OF THE CASE

At all times relevant herein,

WILLIAM DAVID EVANS was an employee of

SOUTHERN PACIFIC. On June 27, 1980,

while employed by SOUTHERN PACIFIC,

plaintiff EVANS, a black male, sustained

personal injuries in the course of hg

employment. These injuries, which were

caused by SOUTHERN PACIFIC's negligence,

left EVANS physically handicapped. On

April 5, 1983, EVANS filed a complaint in

the Superior Court of the State of

California for the County of Los Angeles

against SOUTHERN PACIFIC for his

injuries. (Los Angeles Superior Court

Case No. C 448 486.)

During July and August of 1983,

EVANS' injuries precluded him from being

able to work. On August 1l, 1983, the

day he returned to work, SOUTHERN PACIFIC

accused EVANS of violating Rule G, which

aw of

3

prohibits being under the influence of

alcohol while on duty, and removed him

from service pending an investigation.

Pursuant to the collective

bargaining agreement between SOUTHERN

PACIFIC and the International Brotherhood

of Electrical Workers, of which EVANS was

a member, a hearing was held by SOUTHERN

PACIFIC regarding EVANS' alleged

violation of Rule G. Following the

hearing, SOUTHERN PACIFIC terminated

EVANS from employment. EVANS appealed

his discharge. Subsequently, without any

hearing before a board created or

provided pursuant to the Railway Labor

Act, EVANS was reinstated, on a leniency

basis, in July 1985.

On September 14, 1984, pursuant to

the California Fair Employment and

Housing Act (hereinafter "FEHA"),

Government Code Section 12940 et seq.,

4

EVANS sued SOUTHERN PACIFIC for

employment discrimination. (Los Angeles

Superior Court Case No. C 514 091,

attached hereto as Appendix A.) In his

complaint, EVANS alleged that SOUTHERN

PACIFIC discriminated against him by

firing him because he is black and/or

because he suffers from a physical

®oandicap that resulted from the injuries

he sustained as a result of SOUTHERN

PACIFIC's negligence. EVANS further

alleged that SOUTHERN PACIFIC's proffered

reason for his termination, the alleged

Rule G violation, was a mere pretext for

discriminating against him on account of

his race and/or physical handicap.

SOUTHERN PACIFIC moved for summary

judgment or, in the alternative, summary

adjudication, on the ground that EVANS'

action for statutory employment

discrimination was preempted by the

OO

5

Railway Labor Act (hereinafter "RLA"), 45

U.S.C. § 151 et seg, The trial court

granted SOUTHERN PACIFIC's motion for

summary judgment on December 31, 1987.

EVANS moved for reconsideration on

January 8, 1988. Said motion was denied

on January 29, 1988.

EVANS timely appealed the trial

court's grant of summary judgment to the

California State Court of Appeal. On

September 15, 1989, the California State

Court of Appeal reversed the trial court,

ruling that "the RLA does not preempt

plaintiff's action for employment

discrimination on the ground of either

race or physical handicap." Evans v.

213 Cal.App.3d 1378, 1388 (1989). The

action was remanded to the trial court.

SOUTHERN PACIFIC filed a Petition

for Review of the Court of Appeal's

ital

6

decision with the California Supreme

Court on October 24, 1989. Said petition

was denied on November 30, 1989.

SUMMARY OF ARGUMENT

This instant Petition for Writ of

Certiorari seeks to have this Court

revisit a subject settled by this Court

well over two decades ago.

Although SOUTHERN PACIFIC has

mischaracterized EVANS' state court

action as a common law wrongful

termination claim and framed the

questions presented for review on the

basis of that mischaracterization, the

fact remains that EVANS' action is

actually a claim of discrimination in

employment, based on race and/or physical

handicap, brought pursuant to the

California anti-discrimination statute.

Thus, the question actually raised

ee ee

7

by the petition is whether the RLA

preempts state anti-discrimination laws.

That question was answered by this

Court in 1963 in Colorado Anti-

Discriminati ommissi v. Conti

Airlin ns., 372 U.S. 714, 83 S.Ct.

1022, 10 L.Ed.2d 84 (1963). A related

issue, whether pursuit of arbitral

remedies under a collective bargaining

agreement bars a claim of discrimination

under anti-discrimination statutes, was

settled by this Court eleven years later

in Alexander v. Gardner-Denver Co., 415

U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147

(1974).

The California State Court of Appeal

in the instant case expressly followed

this Court's rulings in Colorado Anti-

Discrimination Commission and Alexander

v. Gardner-Denver. Moreover, the

decision below is also consistent with

8

this Court's more recent preemption

decisions in cases not involving anti-

discrimination statutes, e.g. Atchison,

° a anta Llw Co. v. Bu ‘

480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d

563 (1987); Lingle v. Norge Div. of Magic

Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877,

100 L.Ed.2d 410 (1988); Fort Halifax

acki nc. v » 2 V.8. i,

107 S.Ct. 2211, 96 L.Ed.2d 1 (1987);

Ba ine v. kansas-Bes reight

System, Inc., 450 U.S. 728, 101 S.Ct. '

1437, 67 L.Ed.2d 641 (1981).

Accordingly, SOUTHERN PACIFIC has

failed to demonstrate that there is an

important question of federal law which

has not been, but should be, settled by

this Court or that the court below has

decided a federal question in a way that

conflicts with applicable decisions of

this Court. Indeed, the exact opposite

9

is the case. The questions of law raised

herein have been settled by this Court

and the decision of the court below is

consistent with this Court's decisions.

ARGUMENT

1. SOUTHERN PACIFIC's Petition

Mischaracterizes Plaintiff's

Complaint As One Fer Common Law

“Wrongful Termination" When In Fact

The Complaint Unequivocally States A

Cause Of Action For Discrimination

In Employment Based Upon Statute.

In its Petition for Writ of

Certiorari, SOUTHERN PACIFIC asserts,

without any basis in fact or law, that

plaintiff EVANS' cause of action for race

and/or physical handicap discrimination

in violation of the FEHA is, in fact, a

cause of action for tortious wrongful

employment termination. (See Petition

10

for Writ of Certiorari, p.i, pp.13-14.)

SOUTHERN PACIFIC's disingenuous attempt

to mischaracterize the nature of EVANS'

claim as a garden variety common law

cause of action for wrongful discharge is

exposed by simply reading the Complaint.

The Complaint unequivocally states that

SOUTHERN PACIFIC terminated EVANS because

of his race and/or physical handicap in

violation of the FEHA and that its

proffered reason for terminating him is

nothing more than a pretext for the

unlawful discrimination.

The mischaracterization of

plaintiff's cause of action as one

sounding in common law, as opposed to one

grounded in statute, has a direct bearing

on the issue presented for review. When

the issue is framed correctly (i.e. based

upon the actual facts of this case) as

one involving a question of preemption of

11

the RLA over a state anti-discrimination

statute, it is clear that review by this

Court is unwarranted. This Court

specifically has ruled that a claim based

upon a state anti-discrimination statute,

such as in the instant case, is not

preempted by the Railway Labor Act.

_ , ™ po

Vv. ine j » 372 U.S.

714, 83 S.Ct. 1022, 10 L.Ed.2d 84 (1963).

2. The Petition for Writ of Certiorari

Should Not Be Granted Because The

Issues Presented Have Been Settled

By This Court In Prior Decisions And

No Important Question Which Has Not

Been Settled Is Presented By the

Petition.

In its Petition for Writ of

Certiorari, SOUTHERN PACIFIC contends

that review of the California Court of

Appeal's decision by this Court is

12

appropriate because the state court's

decision allegedly poses an important

federal question regarding the preemption

provisions of the RLA. SOUTHERN PACIFIC

fails to recognize, however, that the

issues presented herein have been

addressed .d decided by this Court and

the California Court of Appeal's decision

is consistent with those decisions.

In Colorado Anti-Discrimination

. Lani v. Conti tal Airli I

372 U.S. 714, 83 S.Ct. 1022, 10 L.Ed.2d

84 (1963), the plaintiff alleged that he

was denied employment with the defendant

airline because of his race, in violation

of Colorado's anti-discrimination

statute. The Colorado Anti-

Discrimination Act of 1957 provided that

"it is an unfair employment practice for

an employer to hire, to discharge, to

promote or demote, or to discriminate in

13

matters of compensation against, any

person otherwise qualified, because of

race, creed, color, national origin or

ancestry." The Colorado Supreme Court

dismissed the complaint on the ground

that the claim of racial discrimination

was preempted by the RLA.

This Court reversed, holding that

the RLA did not explicitly or implicitly

preempt racial discrimination claims

based upon state law:

"There is even less reason to

say that Congress, in passing

the Railway Labor Act and

making certain of its

provisions applicable to air

carriers, intended to bar

States from protecting

employees against racial

discrimination. No provision

in the Act even mentions

14

discrimination in hiring. . .

Nothing in the Railway Labor

Act or in our cases suggests

that the Act places upon an air

carrier a duty to engage only

in fair nondiscriminatory

hiring practices. The Act has

never been used for that

purpose, and we cannot hold it

bars Colorado's Anti-

Discrimination Act." Id., 372

U.S. at 724; 83 S.Ct. at 1027

(footnotes omitted).

SOUTHERN PACIFIC attempts to

distinguish Colorado Anti-Discrimination

Commission by arguing that this Court's

ruling was limited to discrimination

against applicants for employment and

does not apply to current employees, such

as EVANS, who are discriminated against

on the basis of race. This distinction

15

is nonsensical. These statutes on their

face apply to current as well as

prospective employees. Moreover, no such

distinction was drawn by this Court.

There is simply no language in the

Court's decision, and indeed SOUTHERN

PACIFIC does not cite to any, which

limits the Court's holding to prospective

employees only.

This Court reached a similar result

in Alexander v. Gardner-Denver Co., 415

U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147?

(1974). There, the plaintiff alleged

that he was discharged from employment on

the basis of his race. Pursuant to the

collective bargaining agreement between

the employer and the union, of which the

plaintiff was a member, the matter was

submitted to arbitration and the

termination was upheld. Concurrently,

the plaintiff instituted a court action

16

for racial discrimination in violation of

Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq. The

trial court ruled that the collective

bargaining agreement, which included a

nondiscrimination clause, was the

plaintiff's exclusive remedy for the

employment discrimination. This Court

disagreed:

"(T)he legislative history of

Title VII manifests a

congressional intent to allow

an individual to pursue

independently his rights under

both Title VII and other

applicable state and federal

statutes.

"The clear inference is

that Title VII was designed to

supplement, rather than

supplant, existing laws and

17

institutions relating to

employment discrimination. In

sum, Title VII's purpose and

procedures strongly suggest

that an individual does not

forfeit his private cause of

action if he first pursues his

grievance to final arbitration

under the nondiscrimination

Clause of a collective-

bargaining agreement.

"'/ For example, Senator Joseph

Clark, one of the sponsors of

the bill, introduced an

interpretive memorandum which

stated: 'Nothing in title VII

or anywhere else in this bill

affects rights and obligations

under the NLRA and the Railway

Labor Act. .. [{T]Jitle VII is

18

!

not intended to and does not

deny to any individual, rights

and remedies which he may

pursue under other Federal and

State statutes. If a given

action should violate both

title VII and the National

Labor Relations Act, the

National Labor Relations Board

would not be deprived of

jurisdiction.' 110 Cong.Rec.

7207 (1964). . ." Alexander,

415 U.S. at 48-49, 94 S.Ct. at

1020-1021.

In sum, Colorado Anti-

Discrimination Commission and Alexander

v. Gardner-Denver Co, have settled the

issues presented in this petition, and,

as the court below held, are dispositive.

The law is clear that state anti-

discrimination statutes are not preempted

}

19

by the RLA.

Accordingly, the Petition for Writ

of Certiorari should be denied.

3. The Petition For Writ Of Certiorari

Should Be Denied Because The

Decision Below Is Not In Conflict

With The Decisions Of This Court.

As demonstrated above, the court

below expressly followed the decisions of

this Court in Colorado Anti-

Discrimination Commission and Alexander

v. Ga - ver. Therefore, review of

the lower court's decision is not

warranted.

Moreover, the decision of the court

below is also consistent with this

Court's more recent decisions relating to

preemption of federal labor laws.

Since Colorado Anti-Discrimination

Commission and Alexander v. Gardner-

Denver, this Court has addressed the

CPG we ee

20

issue of preemption of federal labor laws

in a number of cases which did not

involve anti-discrimination statutes,

but rather involved the relationship

between the federal labor laws and other

federal or state statutes unrelated to

anti-discrimination laws. In those

contexts, this Court has held that if a

claim is not "inextricably intertwined"

with the provisions of the collective

bargaining agreement, that is, if

resolution of the claim does not require

an interpretation or application of the

terms of the collective bargaining

agreement, the federal labor laws do not

preempt. See, e.g. Atchison, Topeka and

nt Llw Cc Vv ell, 480 U.S.

557, 107 S.Ct. 1410, 1415, 94 L.Ed.2d 563

(1987); Li v. No iv. Oo agic

Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877,

1883-1885, 100 L.Ed.2d 410 (1988); Fort

21

Halifax Packing Co., Inc. v. Coyne, 482

U.S. 2, 207 &.CE. 22812, 96 be BG.a8 2

(1987); ine v. sas-Bes

Freight System, Inc., 450 U.S. 728, 737,

101 S.Ct. 1437, 1443, 67 L.Ed.2d 641

(1981).

In Buell, supra, a railroad carman

filed a complaint under the Federal

Employers' Liability Act, 45 U.S.C. §51

et seg. This Court, in a unanimous

decision, found that the plaintiff's

cause of action stemmed from rights which

existed independently from the terms of

the collective bargaining agreement, and

held that the RLA did not preempt the

claim.

In Barrentine, supra, the lower

court dismissed the plaintiffs' action,

which alleged violations of the Fair

Labor Standards Act, 29 U.S.C. Section

201 et seg., on the ground that the

22

plaintiffs' prior voluntary submission of

the wage claims to a joint grievance

committee pursuant to terms of the

collective bargaining agreement barred

the court action. This Court reversed,

holding that the rights upon which the

plaintiffs relied were non-waivable,

independent statutory rights which

existed separately from the terms of the

collective bargaining agreement.

Barrentine, 450 U.S. at 745, 101 S.Ct. at

1447.

In Fort Halifax Packing Co., supra,

this Court rejected a claim that the

Labor Management Relations Act ("LMRA"),

29 U.S.C. Section 151 et seqg., and the

Employee Retirement Income Security Act,

29 U.S.C. Section 1001 et seg., preempted

a state statute which provided a one-time

severance benefit to employees in the

event of plant closing. In reaching this

he dtedintabag

23

conclusion, this Court emphasized that

the state statute was not preempted

"since its establishment of a minimum

labor standard does not impermissibly

intrude upon the collective-bargaining

process." Fort Halifax, 482 U.S. at 23,

107 S.Ct. at 2215.

Similarly, in Lingle, supra, this

Court held, in a unanimous decision, that

the LMRA did not preempt a state cause of

action for retaliatory discharge in

violation of the state workers'

compensation laws because resolution of

the claim did not require an

interpretation or application of the

provisions of the collective bargaining

agreement. Lingle, 486 U.S. at 407, 108

S.Ct. at 1882.

Even under the “inextricably

intertwined" standard developed in the

above cases, none of which involve anti-

4

discrimination laws, the decision of the

court below is consistent with those

rulings of this Court. EVANS' claim of

race and/or physical handicap

discrimination in violation of the FEHA

does not turn upon an application or

interpretation of the terms of the

collective bargaining agreement.

Instead, the right to be free from

discrimination in employment is an

independent right defined and enforced

under state and federal law without any

reference to the provisions of the

collective bargaining agreement.

V c.f. Caterpillar Inc. v. Williams, 482

U.S. 386, 107 S.Ct. 2425, 96 L.Ed.2d 318

(1987), where even claims based upon

breach of individual employment contracts

were not preempted because the contracts

relied upon were not the collective

bargaining agreement, but contrast

W isvi vi

Railroad Co., 406 U.S. 320, 92 S.Ct.

1562, 32 L.Ed.2da 95 (1972), where the

common law wrongful termination claims

; arose out of and were directly related to

(continued...)

tie te aie

* oe

3

:

25

Resolution of whether SOUTHERN

PACIFIC unlawfully discriminated against

EVANS on the basis of his race and/or

physical handicap does not require an

interpretation or application of the

collective bargaining agreement.

Therefore EVANS' cause of action is not

preempted.

V(...continued)

the collective bargaining agreement.

Neither Caterpillar nor Andrews is on

point in the instant case because here we

are dealing with a statutory cause of

action for discrimination and not with a

common law or contract claim.

Nevertheless, even under the standards

enunciated in Caterpillar, the claim

herein would not be preempted because it

is independent of the collective

bargaining agreement. Caterpillar, 482

U.S. at 396, 107 S.Ct. at 2431-2432. Nor

does Andrews, where the claim was

inextricably intertwined with the

collective bargaining agreement, compel a

contrary result.

26

4. The Petition For Writ of

Certiorari Should Be Denied

Because The Standards For

Preemption Enunciated By This

Court Have Been Consistently

Applied By The Lower Courts,

Including The Court Below In

The Instant Case.

As demonstrated above, the issues

raised by the instant Petition for Writ

of Certiorari are well settled by

numerous decisions of this Court. Nor is

there any confusion among the lower

courts regarding the standard to be

applied. Like the California Court of

Appeal in the instant case, a number of

courts have held, consistent with this

Court's decision in Colorado Anti-

Discrimination Commission, that the RLA

does not preempt actions under state or

federal anti-discrimination laws. See,

5 nteet Shy Saber

27

e.g. Norman v. Missouri Pacific Railroad,

414 F.2d 73 (8th Cir. 1969) (the RLA did

not preempt cause of action based upon

Title VII of the Civil Rights Act of

1964); j Vv ~ ut

Railroad, 861 F.2d 33, 36-37 (2nd Cir.

1988) (claim that discharge violated 42

U.S.C. §1983 was not preempted by the

RLA); McAlester v. United Airlines, Inc.,

851 F.2d 1249, 1254-1255 (10th Cir. 1988)

(claim of racially discriminatory

discharge under 42 U.S.C. §1981 was not

preempted by RLA); Muncy v. Norfolk &

Western Railway Co., 650 F.Supp. 641, 643

(S.D. W.Va. 1986) (action for employment

discrimination on basis of race and

physical handicap under state anti-

discrimination law was not preempted by

RLA); Walker v. Consolidated Rail Corp.,

178 Mich.App. 451, 444 N.W.2d 199 (1989)

(race discrimination suit based on state

Sid ie RCO i OL ETS

28

law was not preempted by RLA).

Nearly all of the cases cited by

SOUTHERN PACIFIC as supporting its

position that lower courts have found

preemption are inapposite because they

involved common law claims of wrongful

discharge and not statutory anti-

discrimination claims. Moreover, in

those cases relied upon by Petitioner,

the plaintiffs' asserted common law

claims could not be resolved without

construing the terms of the collective

bargaining agreement.

The only cases cited by petitioner

which involved preemption of an anti-

discrimination statute are McCall] v.

™ llwa o., 844 F.2d

294 (6th Cir. 1988); ns Vv. K

& W Llwa ag @0a F.ae@ 576,

modified in 811 F.2d 286 (6th Cir. 1986);

and Samczyk v. Chesapeake & Ohio Raljlway

|

;

'

29

Co., 669 F.Supp. 156 (E.D. Mich. 1987).

These cases, however, are clearly

distinguishable.

First, unlike the instant case, none

of the cases relied upon by SOUTHERN

PACIFIC involved claims of race

discrimination.

Second, unlike the instant case, the

plaintiffs in each of the above cases had

been disqualified from employment on the

basis of a medical condition. The

employer contended that the medical

condition disqualified the employee from

continued employment and the employee

contended that it did not. Under these

circumstances, the Sixth Circuit and the

Michigan District Court found that the

issues of whether the employees were in

fact disqualified from continued

employment by virtue of their medical

condition were minor disputes cognizable

30

under the RLA and that the RLA provided

the exclusive remedy.

In the instant case, neither the

employer nor the employee contends that

the employee's medical condition

disqualifies him from continued

employment. Here, the issue is whether

the employer has discriminated against

the employee based upon his race and/or

physical handicap, and has used an

alleged violation of a company rule as a

pretext for such discrimination. None of

the cases cited by SOUTHERN PACIFIC

stands for the proposition that the RLA

preempts the claims of discrimination

involved herein.”

’ Indeed, in Stephens, the Sixth Circuit

expressly stated that the discharge at

issue therein did not involve

discrimination because of physical

handicap and, therefore, its decisiion

did not “in any way conflict with

- . “" S§tephens, 811 F.2d at 286, fn.9.

0° Meri ae | a

31

CONCLUSION

As the foregoing establishes, the

issues which Petitioner seeks to have

reviewed in the instant action are well

settled by numerous decisions of this

Court. The court below followed and

correctly applied the rules set forth in

these decisions. Moreover, the decision

of the court below is consistent with the

decisions of other state courts and

federal courts which have applied the

rules set forth by this Court regarding

preemption. EVANS' claims of racial

and/or physical handicap discrimination

are based upon a state anti-

discrimination statute and are wholly

independent of the collective bargaining

agreement. Accordingly, under well-

settled authority, there is no preemption

by the RLA. The Petition for Writ of

Certorari raises no issues which warrant

32

review by this Court, and therefore

should be denied.

Dated: May 16, 1990

Respectfully submitted,

DANIEL FOGEL*

LESTER G. OSTROV

RICHARD L. ROSETT

MIA DARBONNE FARBER

FOGEL, FELDMAN, OSTROV, RINGLER & KLEVENS

A LAW CORPORATION

5900 Wilshire Boulevard

26th Floor

Los Angeles, California 90036

(213) 937-6250

Attorneys for Respondent

WILLIAM DAVID EVANS

*Counsel of Record

APPENDIX

A-1

FOGEL, FELDMAN, OSTROV, RINGLER & KLEVENS

A Law Corporation

5900 Wilshire Boulevard, Suite 2600

Los Angeles, California 90036

(213) 937-6250

Attorneys for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

WILLIAM DAVID EVANS, ) Case No. C 514091

)

Plaintiff, ) COMPLAINT FOR

) EMPLOYMENT

) DISCRIMINATION

vs. )

)

SOUTHERN PACIFIC )

TRANSPORTATION )

COMPANY, Does 1 )

1 through 20, )

inclusive, )

)

Defendants. )

)

Plaintiff alleges:

i. The true names and capacities,

A-2

whether individual, corporate, associate

or otherwise, of defendants DOES 1 through

20, inclusive, are unknown to plaintiff,

who, therefore, sues those defendants by

such fictitious names and asks leave to

amend this Complaint to show their true

names and capacities when the same have

been ascertained. Plaintiff is informed

and believes, and thereon alleges, that

each of the defendants designated herein

as a DOE is negligently or legally

responsible in some manner for the events

and happenings referred to herein, and

negligently and unlawfully caused injuries

and damages proximately thereby to

plaintiff as herein alleged.

r At all times mentioned herein,

defendant SOUTHERN PACIFIC TRANSPORTATION

COMPANY (hereinafter "SOUTHERN PACIFIC")

was and now is a corporation duly

Organized and existing under and by virtue

A~3

of the laws of the state unknown to

plaintiff and is authorized to do and is

doing business in the State of California.

3. At all times herein mentioned

plaintiff was employed by defendant

SOUTHERN PACIFIC and the employment

discrimination herein complained of arose

while plaintiff was engaged in the course

and scope of his employment by defendants,

and each of then.

4. Plaintiff is informed and believes,

and thereon alleges, that at all times

herein mentioned the defendants, and each

of them, were the agent, representative

and employee of each of them and ws at

all times acting within the purpose,

course and scope of said agency,

representation and employment.

5. At all times mentioned herein,

plaintiff was and continues to be a black

A-4

male with a physical handicap due to

injuries received by plaintiff as a result

of the negligence of deferdants, and each

of them, on or about June 27, 1980.

6. At times within one year prior to

November 2, 1983, up through the present,

defendants, and each of then, have

continually carried out discriminatory

conduct against plaintiff on the basis of

his race and/or physical handicap due to

injuries received by plaintiff as a result

of the negligence of defendants, and each

of them, on or about June 27, 1980.

ve On or about September 14, 1983,

defendants, and each of then,

discriminated against plaintiff based upon

his race and/or physical handicap by

firing him from his employment with

defendants, and each of then.

8. Said defendants, and each of then,

are continuing to discriminate against

-ss eee Se

ie tern > ene «etties +

A-5

plaintiff based upon his race and/or

physical handicap due to injuries received

by plaintiff as a result of the negligence

of defendants, and each of them, on or

about June 27, 1980, and plaintiff is

informed and believes said discrimination

will continue in the future.

9. On or about November 2, 1983,

plaintiff filed a charge of discrimination

against SOUTHERN PACIFIC with the

Department of Fair Employment and Housing

of the State of California, charging

SOUTHERN PACIFIC with unlawful

discrimination based upon his race and

physical handicap under California

Government Code. On or about November 22,

1983, plaintiff received written notice

from said Department of Fair Employment

and Housing advising a file on his charge

of discrimination is closed and that he

has a right to file a private lawsuit.

. : - - - _* os — Rg a ye aires

A-6

10. At all times mentioned herein,

defendants, and each of them, pursued and

continued to pursue a policy and practice

of discrimination against plaintiff with

respect to his employment.

ai. As a direct and proximate result of

the employment discrimination alleged

hereinabove by defendants, and each of

them, plaintiff has suffered and continues

to suffer injuries to his health, strength

and activity, which injuries have caused,

and will continue to cause, plaintiff

great mental, nervous and emotional pain

and suffering, all to his general damage

in an amount in excess of the minimum

jurisdictional limits of the above-

entitled court.

12. As a direct and proximate result of

the employment discrimination alleged

hereinabove by defendants, and each of

them, plaintiff has suffered and continues

A-7

to suffer substantial loss of earnings,

employees' benefits and other losses, and

plaintiff has been harmed in his future

earning capacity, all to plaintiff's

damage in an amount not yet ascertained

but as to which proof will be offered at

the time of trial.

13. As a direct and proximate result of

the employment discrimination alleged

hereinabove by defendants, and each of

them, plaintiff has been required to and

did employ physicians and surgeons to

treat and care for him and has incurred

and will in the future continue to incur

expense for such medical care and

treatment. The total amount of such

expense is not yet ascertained, but

plaintiff will offer proof thereof at the

time of trial.

14. As a direct and proximate result of

the employment discrimination alleged

A-8

hereinabove by defendants, and each of

them, plaintiff has been required to incur

and did incur and will in the future incur

attorneys fees.

15. In carrying out the employment

discrimination alleged hereinabove,

defendants, and each of them, acted with

fraud, oppression and malice, and with

advance knowledge of the improper and

unlawful conduct of their agents,

representatives and employees, and

permitted said agents, representatives and

employees, to represent defendants, and

each of them, with a conscious disregard

of the rights and safety to plaintiff, and

defendants, and each of them, authorized

to ratify! the wrongful conduct of their

agents, representatives and employees,

thereby entitling plaintiff to an award of

exemplary and punitive damages ina sum in

excess of $1 millon dollars.

ee

A-9

16. Plaintiff has no plans, adequate or

complete remedy at law to address the

wrongs alleged, as defendants, and each of

then, have failed and refused to

discontinue discrimination against

plaintiff because of his race and/or

physical handicap, and this action for

preliminary injunction is the only means

of securing full and adequate relief.

WHEREFORE, plaintiff prays for judgment

against defendants, and each of them, as

follows:

l. General damages in excess of the

minimum jurisdictional limits of the

above-entitled Court;

2 All loss of earnings, earning

capacity and other losses according to

proof;

3. All medical and incidental expenses

according to proof;

A-10

4. Punitive and exemplary damages in a

sum in excess of the $1 million dollars;

5. For entry of a declaratory judgment

that the policies and practices of

defendants, and each of them, complained

of herein violate plaintiff's rights

protected under Government Code §12900, et

seq.-;

6. For entry of a preliminary and

permanent injunction enjoining defendants,

and each of them, from violating said

sections; directing defendants, and each

of them, to provide plaintiff equal

opportunity in his employment to work free

to discrimination; to restore and pay all

the wages and all the other employment

benefits due him during the time the

employment discrimination existed; and to

remove from the records of defendants, and

each of them, all reference to conduct of

plaintiff's based upon employment

Sinaia

A-1l

discrimination;

7. For attorneys fees;

8. For costs of suit incurred herein;

and,

9. For such other and further relief as

the Court may deem just and proper.

FOGEL, FELDMAN, OSTROV, RINGLER & KLEVENS

A Law Corporation

By: LS/

RICHARD L. ROSETT

Attorneys for Plaintiff