Scott T. Richardson v. BNSF Railway Company

St. Louis, MO - Wrongful discharge lawyer represented appellant with a constructive discharge

and intentional infliction of emotional distress under Nebraska law claim.

Richardson's complaint alleged the following facts. In 2015, after eighteen

years of employment with BNSF, Richardson received a new supervisor. Shortly

thereafter, BNSF "pulled [Richardson] out of service,” alleging that he had left a

company vehicle at a hotel bar. According to the supervisor, Richardson had been

drinking while driving. After a six-week investigation produced no evidence that

Richardson had been drinking while driving, BNSF returned Richardson to service.

BNSF then required Richardson to complete from memory expense reports related

to events that had occurred before his removal. Upon identifying alleged errors in

Richardson's expense reports, BNSF terminated Richardson's employment.

On January 31, 2018, an arbitration board reversed the termination, ordering

BNSF "to return [Richardson] to work with his seniority intact within 30 days.”

However, BNSF "made no attempts to return [Richardson] to work within 30 days.”

When Richardson contacted the supervisor in February to discuss reinstatement, the

supervisor "responded with expletive laced messages” and "threatened physical

violence” as well as "further disciplinary action” against Richardson. It was not until

April 2019, more than one year after the board's decision, that BNSF mailed

Richardson a letter instructing him to contact a different BNSF manager on or before

May 8, 2019 "to begin the reinstatement process.”

Although Richardson's complaint did not detail what happened next, the

record indicates, and Richardson does not deny, that he declined BNSF's invitation

to return to work. Richardson's complaint did allege, however, that he "reasonably

believed [BNSF] never intended to return [him] to employment, that [BNSF and its

1

The Honorable John M. Gerrard, Chief Judge, United States District Court

for the District of Nebraska.

-3-

employees] would continue to harass and threaten [him], that [BNSF] would

discipline [him] without cause,” and that BNSF "would ultimately terminate [him]

without cause.” According to Richardson, BNSF "deliberately rendered [his]

working conditions intolerable” in order to "force [him] to quit.” In addition,

Richardson alleged that, by subjecting him to discipline and termination without

cause and by "berating [him] with expletive laced language and threats of physical

violence,” BNSF and its employees engaged in "intentional or reckless” conduct that

was "so outrageous in character and so extreme in degree as to go beyond all possible

bounds of decency and is to be regarded as atrocious and utterly intolerable in a

civilized community,” causing him to suffer "emotional distress so severe that no

reasonable person should be expected to endure it.”

Richardson sued BNSF in Nebraska state court, alleging constructive

discharge and intentional infliction of emotional distress. BNSF removed the case

to federal court on the basis of diversity jurisdiction and then moved to dismiss. The

district court granted the motion, concluding that the Railway Labor Act ("RLA”),

45 U.S.C. § 151 et seq., divested it of subject-matter jurisdiction over both of

Richardson's claims and that, furthermore, Richardson had failed to state a claim of

intentional infliction of emotional distress under Nebraska law. Richardson appeals.

II.

"We review the grant of a motion to dismiss de novo.” Tholen v. Assist Am.,

Inc., 970 F.3d 979, 982 (8th Cir. 2020). On appeal, as before the district court, BNSF

argues that dismissal was proper under Rule 12(b)(1) for lack of subject-matter

jurisdiction and, in the alternative, that dismissal was proper under Rule 12(b)(6) for

failure to state a claim.

We begin with the question whether dismissal was proper under Rule

12(b)(1). See Demien Constr. Co. v. O'Fallon Fire Prot. Dist., 812 F.3d 654, 656-

57 (8th Cir. 2016) (explaining that the appellate court "must” confirm subject-matter

jurisdiction before proceeding to review a dismissal under Rule 12(b)(6)). A district

-4-

court properly dismisses a complaint under Rule 12(b)(1) if the plaintiff fails to

establish subject-matter jurisdiction by a preponderance of the evidence. See

OnePoint Sols., LLC v. Borchert, 486 F.3d 342, 347 (8th Cir. 2007).

BNSF argues that the district court properly dismissed Richardson's

complaint under Rule 12(b)(1) because the RLA divested the district court of

subject-matter jurisdiction over both of Richardson's claims. The RLA assigns

arbitration boards "exclusive jurisdiction” over claims arising out of the application

or interpretation of a collective-bargaining agreement between a carrier and its

employees.

2

Consol. Rail Corp. v. Ry. Labor Execs.' Ass'n, 491 U.S. 299, 303-04

(1989). A claim arises out of the application or interpretation of a collectivebargaining agreement if it cannot be resolved without interpreting the collectivebargaining agreement. Gore v. Trans World Airlines, 210 F.3d 944, 949 (8th Cir.

2000). This is necessarily the case if the claim relies on rights that exist only by

virtue of the collective-bargaining agreement. Id.

We agree with BNSF and the district court that the RLA divested the district

court of subject-matter jurisdiction over Richardson's constructive-discharge claim.

"The clear and oft-cited rule in Nebraska is that unless constitutionally, statutorily,

or contractually prohibited, an employer, without incurring liability, may terminate

an at-will employee at any time with or without reason,” with a limited exception

for cases in which the termination violates a "very clear mandate of public policy.”

Malone v. Am. Bus. Info., 634 N.W.2d 788, 790, 793 (Neb. 2001). Richardson has

not identified a constitutional or statutory basis for his alleged right under Nebraska

law not to be discharged, constructively or otherwise; nor has he identified a "very

clear mandate of public policy” that the alleged constructive discharge violated. See

id. at 793. The only remaining source of his alleged right is thus contractual. But

Richardson has identified no contract, other than the collective-bargaining

agreement between BNSF and its employees, that could have given him a right not

2

Richardson does not dispute that BNSF is a "carrier” within the meaning of

the RLA.

-5-

to be constructively discharged. Indeed, Richardson's counsel conceded at oral

argument that BNSF "could have terminated him for any reason under Nebraska law

absent the collective-bargaining agreement.” Richardson's constructive-discharge

claim thus relied on a right that exists, if at all, only by virtue of a collectivebargaining agreement between a carrier and its employees. Therefore, the district

court properly dismissed Richardson's constructive-discharge claim for lack of

subject-matter jurisdiction.

We reach the opposite conclusion regarding Richardson's claim of intentional

infliction of emotional distress. "[A]s long as [a] claim can be resolved without

interpreting the agreement itself,” the RLA does not deprive courts of subject-matter

jurisdiction over it. Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 262-63 (1994).

Here, it is possible to resolve Richardson's claim of intentional infliction of

emotional distress without interpreting the collective-bargaining agreement because

Richardson's complaint fails to state a claim of intentional infliction of emotional

distress under Nebraska law no matter what the collective-bargaining agreement

says. Therefore, the district court had subject-matter jurisdiction over Richardson's

claim of intentional infliction of emotional distress, which means that dismissal

under Rule 12(b)(1) was inappropriate. But the same considerations that lead us to

this conclusion also lead us to the conclusion that dismissal under Rule 12(b)(6) was

appropriate.

Under Rule 12(b)(6), a complaint fails to state a claim upon which relief can

be granted if the plaintiff fails to plead factual content that, if true, would allow the

court "to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "[M]ere

conclusory statements,” id., and factual allegations lacking "enough specificity to

raise a right to relief above the speculative level,” Minn. Majority v. Mansky, 708

F.3d 1051, 1055 (8th Cir. 2013) (internal quotation marks omitted), are insufficient

to support a reasonable inference that the defendant is liable.

-6-

A plaintiff bringing a claim of intentional infliction of emotional distress

under Nebraska law must clear "a high hurdle.” Heitzman v. Thompson, 705 N.W.2d

426, 431 (Neb. 2005). Specifically, he must show that the defendant engaged in

"intentional or reckless” conduct that was "so outrageous in character and so extreme

in degree as to go beyond all possible bounds of decency and is to be regarded as

atrocious and utterly intolerable in a civilized community,” causing the plaintiff to

suffer "emotional distress so severe that no reasonable person should be expected to

endure it.” Id. at 430-31. Clearing this hurdle requires showing more than that the

defendant "threat[ened]” or "insult[ed]” the plaintiff, id. at 431, or that the defendant

breached an employment contract, see Foreman v. AS Mid-Am., Inc., 586 N.W.2d

290, 296-97, 305-06 (Neb. 1998).

Here, Richardson alleged that BNSF or its employees disciplined and fired

him without cause and "berat[ed him] with expletive laced language and threats of

physical violence.” He then recited the Nebraska Supreme Court's standard for

intentional infliction of emotional distress and asserted that BNSF's and its

employees' conduct met this standard. It is unnecessary to interpret the collectivebargaining agreement to conclude that these allegations do not support a reasonable

inference of liability.

Richardson's allegations of discipline and termination without cause are

insufficient to generate a reasonable inference of liability because discipline and

termination without cause are not so outrageous that they give rise to a cause of

action for intentional infliction of emotional distress under Nebraska law. If they

were, then every employer who fired an employee without cause would face liability

if the employee suffered severe emotional distress as a result. But Nebraska law

generally permits an employer to fire an employee "at any time, with or without

reason,” without incurring liability. Malone, 634 N.W.2d at 790. True,

Richardson's complaint implies that, unlike an at-will employee, he was protected

by the collective-bargaining agreement against discipline and termination without

cause. Under Nebraska law, however, the mere fact that otherwise legal conduct

constitutes a breach of an employment contract does not render it outrageous for

-7-

purposes of intentional infliction of emotional distress. See Foreman, 586 N.W.2d

at 296-97, 305-06. Therefore, even assuming the discipline and termination violated

the collective-bargaining agreement (without interpreting the agreement to verify

this assumption), we can conclude that Richardson's allegations regarding the

discipline and termination do not generate a reasonable inference of liability.

The addition of allegations of "expletive laced language and threats of

physical violence” does not alter this conclusion. These allegations are too general

to warrant anything more than speculation that the conduct of BNSF or its employees

went beyond mere "threats” and "insults,” which the Nebraska Supreme Court has

held are not outrageous for purposes of intentional infliction of emotional distress.

See Heitzman, 705 N.W.2d at 431. And factual allegations lacking "enough

specificity to raise a right to relief above the speculative level” are insufficient to

support a reasonable inference that the defendant is liable. Minn. Majority, 708 F.3d

at 1055 (internal quotation marks omitted). Therefore, again without interpreting

the collective-bargaining agreement, we can conclude that supplementing the

allegations regarding the discipline and termination with the allegations of threats

and tirades is insufficient to generate a reasonable inference of liability.

Finally, we have no difficulty concluding, without looking to the collectivebargaining agreement, that the addition of Richardson's "[t]hreadbare recital[] of the

elements” of intentional infliction of emotional distress and "conclusory

statement[]” that the conduct of BNSF or its employees satisfied these elements is

also insufficient to generate a reasonable inference of liability. See Iqbal, 556 U.S.

at 678.

In sum, it is possible to resolve Richardson's claim of intentional infliction of

emotional distress without interpreting the collective-bargaining agreement because

Richardson's complaint fails to state a claim of intentional infliction of emotional

distress under Nebraska law no matter what the collective-bargaining agreement

says. Therefore, dismissal of Richardson's claim of intentional infliction of

-8-

emotional distress was appropriate under Rule 12(b)(6) even though not under

Rule 12(b)(1).

III.

The concurrence offers two criticisms of our analysis. First, it argues that, by

treating the RLA's mandatory-arbitration provision as jurisdictional, we

unnecessarily decide an open question in this circuit. Post, at 13-15. Second, it

disagrees with our approach to resolving Richardson's claim of intentional infliction

of emotional distress. Post, at 15-17. We address each criticism in turn.

A.

According to the concurrence, whether the RLA's mandatory-arbitration

provision is jurisdictional is an open question that we need not decide here. We

disagree. It is settled law in this circuit that the RLA divests courts of subject-matter

jurisdiction over claims arising out of the interpretation or application of a collectivebargaining agreement between a carrier and its employees. See, e.g., Jenisio v.

Ozark Airlines, Inc. Ret. Plan for Agent & Clerical Emps., 187 F.3d 970, 973-74

(8th Cir. 1999). The concurrence suggests that Arbaugh v. Y & H Corp., 546 U.S.

500, 515-16 (2006), may have cast doubt on prior circuit precedent on this point.

Post, at 14. Even if that is correct, but see Oakey v. U.S. Airways Pilots Disability

Income Plan, 723 F.3d 227, 235-38 (D.C. Cir. 2013) (concluding that Arbaugh did

not abrogate its precedents holding that the RLA's mandatory-arbitration provision

is jurisdictional), we resolved this doubt in Hastings v. Wilson, 516 F.3d 1055, 1058-

60 (8th Cir. 2008) (reaffirming that a district court "lack[s] subject matter

jurisdiction” over claims arising out of the interpretation or application of a

collective-bargaining agreement).

The concurrence fails to persuade us otherwise. It begins by analyzing the

state of circuit law on whether RLA preemption is ordinary or complete, suggesting

that perhaps Beneficial National Bank v. Anderson, 539 U.S. 1 (2003), might permit

-9-

us to hold that RLA preemption is ordinary notwithstanding prior circuit precedent

to the contrary. Post, at 13-14. We have our doubts. See, e.g., Griffoien v. Cedar

Rapids & Iowa City Ry. Co., 785 F.3d 1182, 1188-89, 1192 (8th Cir. 2015) (treating

circuit precedent that RLA preemption is complete as good law after discussing

Beneficial). But set these doubts aside. The whole discussion is interesting but

irrelevant. To say that RLA preemption is "ordinary” is just to say that a state-court

defendant cannot invoke federal-question jurisdiction as a basis for removal simply

by asserting that the plaintiff's claim arises out of the interpretation or application of

the collective-bargaining agreement. See, e.g., Caterpillar, Inc. v. Williams, 482

U.S. 386, 391-94 (1987). This does not imply that the RLA's mandatory-arbitration

provision is nonjurisdictional. See Trs. of Twin City Bricklayers Fringe Benefits

Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 329 n.3 (8th Cir. 2006)

(explaining that the proposition that a mandatory-arbitration provision precludes a

claim from being litigated in federal court "is distinct from the doctrine of complete

preemption used to remove state claims to federal court”). Consider, as an analogy,

the National Labor Relations Act ("NLRA”), 29 U.S.C. § 151 et seq. The NLRA's

arbitration requirement is jurisdictional, Gerhardson v. Gopher News Co., 698 F.3d

1052, 1057-59 (8th Cir. 2012), even though NLRA preemption ("Garmon

preemption”) is ordinary, Caterpillar, 482 U.S. at 398. The Second, Third, and

Eleventh Circuits all treat the RLA the same way, holding that the RLA's

mandatory-arbitration provision is jurisdictional even though RLA preemption is

ordinary. See Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 276-77 (2d Cir. 2005);

Ry. Labor Execs. Ass'n v. Pittsburgh & Lake Erie R.R., 858 F.2d 936, 943 (3d Cir.

1988); Geddes v. Am. Airlines, 321 F.3d 1349, 1353-55 (11th Cir. 2003).

The only other point that the concurrence makes under the heading of whether

the RLA's mandatory-arbitration provision is jurisdictional is that a circuit split

exists on the question. Post, at 14. The concurrence puts the cart before the horse.

How other circuits have decided the question is relevant only to what this panel

should do assuming this circuit has not decided the question. But this circuit has

decided the question. See Hastings, 516 F.3d at 1058-60.

-10-

B.

The concurrence's second criticism concerns our approach to resolving

Richardson's claim of intentional infliction of emotional distress insofar as it was

based on allegations of discipline and termination without cause. According to the

concurrence, we are adopting a blanket rule "that requires a district court to resolve

the merits of a state-law claim that relies on interpretation of a collective bargaining

agreement in order to determine whether the claim is preempted.” Post, at 16. The

concurrence argues that this rule has peculiar implications when a case proceeds to

a jury trial and, at the close of evidence, neither side is entitled to a directed verdict

no matter what the collective-bargaining agreement says. Post, at 16.

We do not understand our holding to be as sweeping as the concurrence

suggests. True, we rely on the Supreme Court's statement that the RLA does not

deprive courts of subject-matter jurisdiction over a claim "as long as the . . . claim

can be resolved without interpreting the agreement,” Norris, 512 U.S. at 262-63, and

a stubbornly literal interpretation of this statement may have peculiar implications if

the judge must submit the case to the jury. But narrower interpretations of the

statement are available. For example, one could interpret the statement to mean that

as long as it is apparent from the face of the pleadings that the case can be resolved

without interpreting the agreement, the court retains subject-matter jurisdiction. Or,

one could interpret the statement to mean that as long as the court (that is, the judge)

can resolve the case without interpreting the agreement, the court retains subjectmatter jurisdiction. We need not decide among these and other possible

interpretations today. Each of them is a fair reading of Norris that avoids

implications such as those that worry the concurrence. And because it is apparent

from the face of the complaint that Richardson's claim of intentional infliction of

emotional distress can be resolved without interpreting the collective-bargaining

agreement, each of them supports our analysis.

Indeed, we are hard-pressed to conjure any plausible interpretation of the

statement in Norris that would permit us to conclude that Richardson's claim is

-11-

preempted even though it can be resolved under Rule 12(b)(6) without interpreting

the collective-bargaining agreement. It is not even clear that the concurrence

disagrees. The concurrence appears to concede that, under Norris, a claim is

preempted only if determining whether the "right asserted” has been violated

"requires interpretation of the collective bargaining agreement.” Post, at 17. The

concurrence merely insists that the "right asserted” here is "a right to be free from

tortious conduct that included discipline and discharge without cause.” Post, at 17.

This suggests that the real disagreement is over whether the conduct alleged was

indeed "tortious”—that is, whether Richardson has stated a claim for relief—and not

whether, assuming the conduct alleged was not tortious, the claim is capable of

resolution without interpreting the collective-bargaining agreement and thus is not

preempted. Similarly, the concurrence faults us for failing to recognize that

"[q]uestions of contract interpretation . . . would underlie any finding of tort

liability” in this case. Post, at 17 (internal quotation marks omitted). This implies

that there is a reading of the contract that would support liability, which again

suggests that the real disagreement is over whether Richardson has stated a claim for

relief. In sum, the concurrence fails to rebut our conclusion that, under Norris,

Richardson's claim is not preempted if it can be resolved under Rule 12(b)(6)

without interpreting the collective-bargaining agreement. The concurrence's

criticisms seem instead to be directed at our conclusion that Richardson's claim can

be resolved under Rule 12(b)(6) without interpreting the collective-bargaining

agreement.

Thus, we can cheerfully concede that, if Richardson had alleged "tortious

conduct that included discipline and discharge without cause,” such that he could

prove liability but only by prevailing on a "[q]uestion[] of contract interpretation,”

then his claim would be preempted. See post, at 17. But the fact is, Richardson did

not allege conduct that was tortious, and thus he could not prove liability no matter

what the contract means. Therefore, even if interpreting the collective-bargaining

agreement might be necessary to determine the truth of the allegations, it is not

necessary to resolve the claim. See Jones v. Bock, 549 U.S. 199, 215 (2007)

-12-

(explaining that "a complaint is subject to dismissal for failure to state a claim” if

the plaintiff would not be entitled to relief even assuming the allegations are true).

Finally, the concurrence suggests that our analysis conflicts with Carter v.

Ford Motor Co., 121 F.3d 1146 (8th Cir. 1997), and Johnson v. Anheuser Busch,

Inc., 876 F.2d 620 (8th Cir. 1989), each of which concluded that the RLA preempted

a claim of intentional infliction of emotional distress under Missouri law. Post, at

15-17. We disagree. In neither case did we state or even imply that the plaintiff's

claim was capable of resolution under Rule 12(b)(6). On the contrary, even if we

assume no difference between Missouri law and Nebraska law, there are indications

that the allegations in each case constituted a more plausible claim of intentional

infliction of emotional distress than Richardson's. See Carter, 121 F.3d at 1148

(indicating that the plaintiff's claims survived until summary judgment); Johnson,

876 F.2d at 622 (noting the plaintiff's allegation that, on fabricated charges, the

defendant not only fired him but called the police to arrest him on the spot).

Furthermore, our reasoning in each case suggested that if it had been possible to

dismiss the claim under Rule 12(b)(6) without interpreting the collective-bargaining

agreement, then the RLA would not have preempted the claim. See Carter, 121 F.3d

at 1149 (concluding that the claim was preempted because "a determination on the

merits . . . would require the court to determine whether [the plaintiff's] discharge

was warranted under the terms of the collective bargaining agreement”); Johnson,

876 F.2d at 623 (examining "each state-law count to determine whether

interpretation of the collective bargaining agreement is necessary to resolve the

count”). Therefore, given that Richardson's claim is subject to dismissal under Rule

12(b)(6) no matter what the collective-bargaining agreement says, Carter and

Johnson are consistent with holding that the RLA does not preempt Richardson's

claim.

For the foregoing reasons, we affirm.