UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
No. 95-1197
ALBERT A. FLIBOTTE, ET AL.,
Plaintiffs, Appellants,
v.
PENNSYLVANIA TRUCK LINES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Selya and Boudin, Circuit Judges,
and Dowd,* Senior District Judge.
Malcolm J. Barach for appellants.
Regina C. Reardon, with whom Brian P. Crowner and Bray &
Reardon, P.C. were on brief, for appellee.
December 10, 1997
*Of the Northern District of Ohio, sitting by designation.
SELYA, Circuit Judge. Having prevailed before a jury, SELYA, Circuit Judge.
plaintiff-appellant Albert A. Flibotte saw his apparent victory
turn to ashes when the district court entered judgment as a
matter of law in favor of defendant-appellee Pennsylvania Truck
Lines, Inc. (PTL) on the ground that Flibotte's claims were
preempted by section 301 of the Labor Management Relations Act of
1947, 29 U.S.C. 185 (1994). Flibotte beseeches us to reinstate
the jury verdict. We are unable to do so.
I. I.
Background Background
Flibotte, a member of Teamsters Local 25, spent almost
three decades in PTL's employ. This relationship persisted until
PTL terminated him in 1987 for his refusal to participate in a
drug testing procedure a refusal that, under the applicable
collective bargaining agreement, "constitute[d] a presumption of
intoxication." National Master Freight Agreement, Art. 35, Sec.
3 (NMFA). Local 25 filed a grievance on Flibotte's behalf
pursuant to the NMFA and eventually took the case to binding
arbitration. The arbitrator found that Flibotte's ouster did not
violate the collective bargaining pact and rejected the
grievance.
Flibotte subsequently filed a civil action against PTL
in a Massachusetts state court. In addition to a derivative
claim for loss of consortium on behalf of Mrs. Flibotte, the
complaint contained counts for negligence, invasion of privacy,
impairment of civil rights, defamation, negligent infliction of
emotional distress, and intentional infliction of emotional
distress. Flibotte alleged that PTL notified a group of 37
employees, himself included, to report on March 13, 1987, for the
biennial physical examination and drug test required under
federal motor carrier safety regulations; that he refused
"because his examination was not yet due and because the
[designated examination site] was rat-infested"; that, within one
week after he boycotted the scheduled test, he took and passed a
drug test administered by his own physician; and that PTL
nonetheless discharged him summarily on March 18, 1987. He
claimed that in so doing, PTL wrongfully terminated his
employment and, in the bargain, breached various state-law
duties.
PTL removed the case to the United States District
Court for the District of Massachusetts on dual bases (diversity
of citizenship and the existence of a federal question). After
the usual preliminaries including the denial of PTL's motion
for summary judgment the case proceeded to trial before Judge
Nelson and a jury. During the ensuing eight-day trial, PTL twice
moved for judgment as a matter of law on the ground of section
301 preemption. Judge Nelson denied one such motion at the end
of the plaintiff's case and the other at the close of all the
evidence. In due season, the jury returned a verdict for
Flibotte on three counts negligence, negligent infliction of
distress and awarded him $625,000 in damages.
Like the mills of the gods, the mills of the judiciary
sometimes grind exceedingly slow. On November 20, 1991, PTL made
a timely motion for judgment as a matter of law, see Fed. R. Civ.
P. 50(b), in which it again hawked section 301 preemption. The
motion sat unresolved when, in April of 1992, PTL sought the
bankruptcy court's protection under Chapter 11, thus triggering
an automatic stay of proceedings in the district court. See 11
U.S.C. 362 (1990). Some seventeen months later, the bankruptcy
court confirmed a plan of reorganization. PTL's emergence from
the toils of bankruptcy cleared the way for resumption of the
district court proceedings. By then, however, Judge Nelson had
become disabled and a considerable period of time elapsed before
the case was reassigned and a new jurist, Judge Gertner, took up
the outstanding motion. She eventually granted it, provoking
this appeal.
Flibotte's objections possess both procedural and
substantive dimensions. First, he argues that Judge Gertner
erred when she purposed to revisit issues previously decided by
Judge Nelson. Second, he assails the merits of her determination
that section 301 preempts his state-law claims. We address each
of these objections in turn.
II. II.
Law of the Case Law of the Case
Flibotte's procedural objection has a chameleonic
quality. In one iteration, it implies that Judge Gertner
improperly made fact-based determinations contrary to those made
by her predecessor and in flagrant disregard of the truism that
the judge who actually presides over a trial is in a superior
position to make such determinations. Without engaging the
myriad counter-precedential assumptions that are essential to
this objection, it suffices to say that the legal framework in
which motions for judgment as a matter of law exist does not
permit courts confronted with such motions to engage in
differential factfinding, see Veranda Beach Club Ltd. Partnership
v. Western Sur. Co., 936 F.2d 1364, 1383-84 (1st Cir. 1991)
(discussing applicable standards), and there is no indication
here that Judge Gertner disobeyed these guidelines.
Flibotte's next iteration of his procedural objection
is no more rewarding. He asserts that a court is bound by its
own precedents, and that, therefore, Judge Gertner was
incompetent to revise Judge Nelson's answers to the legal
questions posed by the case. This objection is an apparent
effort to employ the venerable law of the case doctrine, which
states in the large that, unless corrected by an appellate
tribunal, a legal decision made at one stage of a civil or
criminal case constitutes the law of the case throughout the
pendency of the litigation. See, e.g., United States v. Bell,
988 F.2d 247, 250 (1st Cir. 1993); Abbadessa v. Moore Bus. Forms,
Inc., 987 F.2d 18, 22 (1st Cir. 1993).
This principle is of no real assistance to Flibotte.
Although temporally distant from each other, Judge Nelson's
denial of PTL's motions for summary judgment and for judgment as
a matter of law, on the one hand, and Judge Gertner's decision to
grant PTL's post-verdict motion for judgment as a matter of law,
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UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
No. 95-1197
ALBERT A. FLIBOTTE, ET AL.,
Plaintiffs, Appellants,
v.
PENNSYLVANIA TRUCK LINES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Selya and Boudin, Circuit Judges,
and Dowd,* Senior District Judge.
Malcolm J. Barach for appellants.
Regina C. Reardon, with whom Brian P. Crowner and Bray &
Reardon, P.C. were on brief, for appellee.
December 10, 1997
*Of the Northern District of Ohio, sitting by designation.
SELYA, Circuit Judge. Having prevailed before a jury, SELYA, Circuit Judge.
plaintiff-appellant Albert A. Flibotte saw his apparent victory
turn to ashes when the district court entered judgment as a
matter of law in favor of defendant-appellee Pennsylvania Truck
Lines, Inc. (PTL) on the ground that Flibotte's claims were
preempted by section 301 of the Labor Management Relations Act of
1947, 29 U.S.C. 185 (1994). Flibotte beseeches us to reinstate
the jury verdict. We are unable to do so.
I. I.
Background Background
Flibotte, a member of Teamsters Local 25, spent almost
three decades in PTL's employ. This relationship persisted until
PTL terminated him in 1987 for his refusal to participate in a
drug testing procedure a refusal that, under the applicable
collective bargaining agreement, "constitute[d] a presumption of
intoxication." National Master Freight Agreement, Art. 35, Sec.
3 (NMFA). Local 25 filed a grievance on Flibotte's behalf
pursuant to the NMFA and eventually took the case to binding
arbitration. The arbitrator found that Flibotte's ouster did not
violate the collective bargaining pact and rejected the
grievance.
Flibotte subsequently filed a civil action against PTL
in a Massachusetts state court. In addition to a derivative
claim for loss of consortium on behalf of Mrs. Flibotte, the
complaint contained counts for negligence, invasion of privacy,
impairment of civil rights, defamation, negligent infliction of
emotional distress, and intentional infliction of emotional
distress. Flibotte alleged that PTL notified a group of 37
employees, himself included, to report on March 13, 1987, for the
biennial physical examination and drug test required under
federal motor carrier safety regulations; that he refused
"because his examination was not yet due and because the
[designated examination site] was rat-infested"; that, within one
week after he boycotted the scheduled test, he took and passed a
drug test administered by his own physician; and that PTL
nonetheless discharged him summarily on March 18, 1987. He
claimed that in so doing, PTL wrongfully terminated his
employment and, in the bargain, breached various state-law
duties.
PTL removed the case to the United States District
Court for the District of Massachusetts on dual bases (diversity
of citizenship and the existence of a federal question). After
the usual preliminaries including the denial of PTL's motion
for summary judgment the case proceeded to trial before Judge
Nelson and a jury. During the ensuing eight-day trial, PTL twice
moved for judgment as a matter of law on the ground of section
301 preemption. Judge Nelson denied one such motion at the end
of the plaintiff's case and the other at the close of all the
evidence. In due season, the jury returned a verdict for
Flibotte on three counts negligence, negligent infliction of
distress and awarded him $625,000 in damages.
Like the mills of the gods, the mills of the judiciary
sometimes grind exceedingly slow. On November 20, 1991, PTL made
a timely motion for judgment as a matter of law, see Fed. R. Civ.
P. 50(b), in which it again hawked section 301 preemption. The
motion sat unresolved when, in April of 1992, PTL sought the
bankruptcy court's protection under Chapter 11, thus triggering
an automatic stay of proceedings in the district court. See 11
U.S.C. 362 (1990). Some seventeen months later, the bankruptcy
court confirmed a plan of reorganization. PTL's emergence from
the toils of bankruptcy cleared the way for resumption of the
district court proceedings. By then, however, Judge Nelson had
become disabled and a considerable period of time elapsed before
the case was reassigned and a new jurist, Judge Gertner, took up
the outstanding motion. She eventually granted it, provoking
this appeal.
Flibotte's objections possess both procedural and
substantive dimensions. First, he argues that Judge Gertner
erred when she purposed to revisit issues previously decided by
Judge Nelson. Second, he assails the merits of her determination
that section 301 preempts his state-law claims. We address each
of these objections in turn.
II. II.
Law of the Case Law of the Case
Flibotte's procedural objection has a chameleonic
quality. In one iteration, it implies that Judge Gertner
improperly made fact-based determinations contrary to those made
by her predecessor and in flagrant disregard of the truism that
the judge who actually presides over a trial is in a superior
position to make such determinations. Without engaging the
myriad counter-precedential assumptions that are essential to
this objection, it suffices to say that the legal framework in
which motions for judgment as a matter of law exist does not
permit courts confronted with such motions to engage in
differential factfinding, see Veranda Beach Club Ltd. Partnership
v. Western Sur. Co., 936 F.2d 1364, 1383-84 (1st Cir. 1991)
(discussing applicable standards), and there is no indication
here that Judge Gertner disobeyed these guidelines.
Flibotte's next iteration of his procedural objection
is no more rewarding. He asserts that a court is bound by its
own precedents, and that, therefore, Judge Gertner was
incompetent to revise Judge Nelson's answers to the legal
questions posed by the case. This objection is an apparent
effort to employ the venerable law of the case doctrine, which
states in the large that, unless corrected by an appellate
tribunal, a legal decision made at one stage of a civil or
criminal case constitutes the law of the case throughout the
pendency of the litigation. See, e.g., United States v. Bell,
988 F.2d 247, 250 (1st Cir. 1993); Abbadessa v. Moore Bus. Forms,
Inc., 987 F.2d 18, 22 (1st Cir. 1993).
This principle is of no real assistance to Flibotte.
Although temporally distant from each other, Judge Nelson's
denial of PTL's motions for summary judgment and for judgment as
a matter of law, on the one hand, and Judge Gertner's decision to
grant PTL's post-verdict motion for judgment as a matter of law,
on the other hand, occurred in the context of a single trial of a
single case in a single court, with no intervening appeal. Judge
Nelson and Judge Gertner, therefore, play the same institutional
role for the purpose of this litigation.
That confluence of judicial identities is dispositive
here. "Under the law of the case doctrine, as it is commonly
understood, it is not improper for a court to depart from a prior
holding if convinced that it is clearly erroneous and would work
a manifest injustice." Arizona v. California, 460 U.S. 605, 619
n.8 (1983). Moreover, it is perfectly appropriate for a judge to
refuse to direct a verdict, permit the jury to consider a case,
and thereafter to grant judgment notwithstanding the verdict.
See Talbot-Windsor Corp. v. Miller, 309 F.2d 68, 69 (1st Cir.
1962). Accordingly, Judge Nelson would have been free to grant
PTL the relief that it sought in its post-verdict motion
notwithstanding his previous rulings; and Judge Gertner, who
stood in his shoes, was at liberty to do the same. Consequently,
Judge Gertner did not arrogate unto herself any undue authority
when she entertained PTL's renewed post-verdict motion for
judgment as a matter of law and reached a different conclusion
than had her co-equal predecessor.
III. III.
Section 301 Preemption Section 301 Preemption
Having found no procedural glitch, we turn to Judge
Gertner's decision. We review a ruling on a motion for judgment
as a matter of law de novo, applying the identical legal
standards that constrain the district court. See Colasanto v.
Life Ins. Co. of N. Am., 100 F.3d 203, 208 (1st Cir. 1996).
Accordingly, "the evidence and all reasonable inferences
extractable therefrom must be examined in the light most
favorable to the nonmovant and a [judgment as a matter of law]
should be granted only when the evidence, viewed from this
perspective, is such that reasonable persons could reach but one
conclusion." Veranda Beach, 986 F.2d at 1383-84.1
A. A.
The Legal Landscape The Legal Landscape
Read literally, section 301 confers federal court
jurisdiction over "[s]uits for violation of contracts between an
employer and a labor organization representing employees in an
industry affecting commerce." Over the years, however, the
1This case has a peculiar twist. It appears that Judge Gertner, though new to the case, ruled on the motion without the benefit of a trial transcript, and a complete transcript has not been prepared to this date. We need not probe too deeply into the question of which way the absence of this transcript cuts. In most cases, a transcript would form an integral part of the court's decisional calculus on a post-verdict motion for judgment as a matter of law. Here, however, the critical issue preemption embodies a pure question of law susceptible to resolution on the face of the pleadings (as supplemented by the collective bargaining agreement). In ruling on the motion for judgment as a matter of law, Judge Gertner hewed to this line and did not make any extraneous factual findings or assumptions. Because the judge's analysis and decision did not need to engage any facts derived from trial testimony, this is the rare case in which the absence of a trial transcript is immaterial to the correctness of a ruling on a post-verdict motion for judgment as a matter of law.
Supreme Court has placed a heavy gloss on this language,
beginning with its holding that the statute empowers federal
courts to craft federal common law reasonably necessary to
effectuate the objectives of section 301. See Textile Workers v.
Lincoln Mills, 353 U.S. 448, 451 (1957). This substantive
authority to declare federal common law soon formed the basis for
an emerging jurisprudence of preemption. See Martin v. Shaw's
Supermarkets, Inc., 105 F.3d 40, 41-42 (1st Cir.) (recounting
development of section 301 preemption), cert. denied, 118 S. Ct.
69 (1997). Today, labor-law preemption casts a relatively wide
net. Thus, section 301 preempts a state-law claim "if the
resolution of [that] claim depends on the meaning of a
collective-bargaining agreement." Lingle v. Norge Div. of Magic
Chef, Inc., 486 U.S. 399, 405-06 (1988).
This rule is not without limitations. The Court has
cautioned that "purely factual questions about an employee's
conduct or an employer's conduct and motives do not require a
court to interpret any term of a collective-bargaining
agreement." Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 262
(1994) (citation and internal quotation marks omitted). It also
has warned that section 301 "cannot be read broadly to pre-empt
nonnegotiable rights conferred on individual employees as a
matter of state law." Livadas v. Bradshaw, 512 U.S. 107, 123
(1994). Even so, the basic test remains that prescribed by
Lingle and its progeny: that section 301 preempts a state-law
claim, whether founded upon the state's positive or common law,
if a court, in passing upon the claim, would be required to
interpret the collective bargaining agreement. See id. In
practice, this test boils down to whether the asserted state-law
claim plausibly can be said to depend upon the meaning of one or
more provisions within the collective bargaining agreement.
A state-law claim can "depend" on the "meaning" of a
collective bargaining agreement in two ways. First, a claim so
qualifies if it alleges conduct that arguably constitutes a
breach of a duty that arises pursuant to a collective bargaining
agreement. See United Steelworkers v. Rawson, 495 U.S. 362, 369
(1990) ("[A] state-law tort action against an employer may be
pre-empted by 301 if the duty to the employee of which the tort
is a violation is created by a collective-bargaining agreement
and without existence independent of the agreement."). Second, a
claim so qualifies if its resolution arguably hinges upon an
interpretation of the collective bargaining agreement. See
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985) (finding
section 301 preemption "when resolution of a state-law claim is
substantially dependent upon analysis of the term of an agreement
made between the parties in a labor contract"). If a state-law
claim depends on the meaning of the collective bargaining
agreement in either of these ways that is, under Rawson's
"duty" rubric or under Allis-Chalmers's "interpretation" rubric
it is preempted.
B. B.
The Merits The Merits
At trial, Flibotte prevailed on three state-law claims:
negligence, negligent infliction of emotional distress, and
intentional infliction of emotional distress. Our review of the
pleadings, supplemented by the items that Flibotte included in
the record appendix on appeal (such as the collective bargaining
agreement) confirms that none of these three claims involves
rights that are made non-negotiable under state law and that all
of them are preempted by section 301. For clarity's sake, we
begin with the negligence claims and then focus on the
intentional infliction claim.
1. Negligence. If Flibotte's two negligence-based 1. Negligence.
claims are to escape preemption, he must establish that they do
not spring from duties imposed by the collective bargaining
agreement, but, rather, that PTL has acted "in a way that might
violate the duty of reasonable care owed to every person in
society." Rawson, 495 U.S. at 371. This would be no mean feat.
Even assuming, favorably to Flibotte, that PTL allegedly breached
duties derived from a source extrinsic to the collective
bargaining agreement, the resolution of the negligence claims
nonetheless depends upon the interpretation of that agreement.
Consequently, those claims are preempted under section 301. We
explain briefly.
Flibotte's damage claim, as framed in his complaint,
links both his economic losses and his emotional distress
directly to his termination. In order to prevail on these
claims, he must prove that PTL wrongfully discharged him. If PTL
acted within its contractual rights in severing the tie, then it
could not have breached its general duty of care. It is clear to
us that we cannot resolve this question, involving the propriety
of Flibotte's firing, without substantial inquiry into the
intricacies of the collective bargaining agreement. After all,
the appellant concedes that PTL cashiered him because he failed
to appear for a scheduled drug test, and the collective
bargaining agreement in force here the NMFA governs both the
frequency of testing, see NMFA Uniform Testing Procedure, Sec.
IIB, and the consequences of a failure to take an offered test,
see NMFA, Art. 35, Sec. 3. Hence, it is impossible to determine
PTL's negligence without inquiring into its rights and
obligations as described by the collective bargaining agreement.
This mandatory consultation separates the instant case from those
that raise purely factual questions and thus begets section 301
preemption.
If more were needed and we do not think that it is
we also would note that Flibotte's negligence claims are
preempted to the extent that they stem from his contention that
the conditions of the requested test were unsanitary and violated
the employer's duty to provide a suitable hygienic environment
for the examination. This duty derives from the employment
relationship as defined in the collective bargaining agreement,
and as such, it cannot form the basis for a state-law claim. A
plaintiff cannot skirt section 301 preemption by the simple
expedient of recharacterizing an employer's substandard
performance of duties that devolve upon it pursuant to the terms
of the collective bargaining agreement as a tort. See Rawson,
495 U.S. at 371-72.
2. Intentional Infliction of Emotional Distress. This 2. Intentional Infliction of Emotional Distress.
leaves only the appellant's claim for intentional infliction of
emotional distress. To prevail on that claim, Flibotte had to
prove that PTL (1) intended to inflict emotional distress by (2)
undertaking actions that were extreme and outrageous, thereby (3)
causing emotional distress which (4) was severe. See Wagenmann
v. Adams, 829 F.2d 196, 213-14 (1st Cir. 1987); Agis v. Howard
Johnson Co., 355 N.E.2d 318-19 (Mass. 1976). Under Massachusetts
law, "extreme and outrageous conduct" is behavior that is "so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community."
Foley v. Polaroid Corp., 508 N.E.2d 72, 82 (Mass. 1987).
PTL's rights and obligations under the collective
bargaining agreement are obviously central not only to an inquiry
into PTL's intentions, but also to an inquiry into whether PTL
conducted itself in a sufficiently outrageous manner to give rise
to liability under state tort law. It is a well-settled
principle that a party cannot be liable if it does no more than
"insist upon [its] legal rights in a permissible way, even though
[it] was well aware that such insistence is certain to cause
emotional distress." Restatement (Second) of Torts, 46 cmt. g
(1965); see Rush v. United Technologies, 930 F.2d 453, 456 (6th
Cir. 1991). If PTL was within its rights to require Flibotte to
take a drug test at the designated site and to terminate him when
he refused to do so, a claim for intentional infliction of
emotional distress cannot lie.2 Because the resolution of these
issues necessitates examination of the collective bargaining
agreement, the claim is preempted. See Allis-Chalmers, 471 U.S.
at 213; see also Jackson v. Liquid Carbonic Corp., 863 F.2d 111,
119 (1st Cir. 1988) (upholding section 301 preemption in a drug
testing case on the ground, inter alia, that "[o]nly by probing
the contours of the [collective bargaining agreement] can one
answer whether the [drug testing] program was legitimately
implemented").
IV. IV.
Conclusion Conclusion
We are not without sympathy for Flibotte, who obtained
a large verdict many years ago, then was plunged into a longeval
legal limbo, and ultimately saw his prized damage award vanish
when a new judge came on the scene. It is understandable that
Flibotte views the newly arrived judge as the juridical
equivalent of the Grinch who stole Christmas, but in actuality,
the judge did no more than her duty. As she recognized, the
resolution of each of Flibotte's state-law claims requires an
2It bears repeating that an arbitrator has already ruled in PTL's favor on the propriety of Flibotte's discharge, and that an historic reason for section 301's extensive preemptive scope was "to ensure that, when developed, the resultant rules would be applied through the grievance procedures agreed upon between unions and management." Jackson v. Liquid Carbonic Corp., 863
F.2d 111, 114 (1st Cir. 1988). This reason remains valid today.
examination of the terms of the collective bargaining agreement
and, as a result, the claims are preempted under section 301.
Because the district court correctly divined and applied the law,
we can go no further.
Affirmed. Affirmed.