Joanne M. Carlson, Appellant, vs. Tracy R. Jackman, Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-96-543

Sandra Eissinger,

Appellant,

vs.

Northwest Airlines, Inc.,

Respondent.

  Filed September 24, 1996
Affirmed in part, reversed in part and remanded
Amundson, Judge

Ramsey County District Court
File No. C0-95-4971

Thomas E. Marshall, Mackall, Crounse & Moore PLC, 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402 (for appellant)

Timothy R. Thornton, Eric L. Leonard, Briggs and Morgan, P.A., 2400 IDS Center, Minneapolis, MN 55402 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Randall, Judge and Amundson, Judge.
U N P U B L I S H E D O P I N I O N

AMUNDSON , Judge
Appellant Sandra Eissinger challenges the district court's grant of summary judgment, arguing that her whistleblower and gender discrimination claims are not preempted by the Railway Labor Act and are not subject to mandatory arbitration under her collective bargaining agreement. We affirm in part, reverse in part, and remand.
  FACTS
Appellant Sandra Eissinger began working for respondent Northwest Airlines on May 31, 1983. She is still working for them at the time of this appeal.
In April 1995, Eissinger sued Northwest. In the first count of the complaint, she alleged retaliation in violation of the Whistleblower Statute:
22. Defendant took adverse employment action against Plaintiff in violation of Minn. Stat. § 181.932 and Minnesota common law because she reported violations or suspected violations of federal law as, although qualified, she was continually denied bids for other positions within the company. 23. Defendant maintained a hostile work environment and subjected Plaintiff to obscenities and other disparaging and discriminating treatment of her as well as other female co-workers. 24. Defendant retaliated against Plaintiff for her participation and cooperation in the reporting of violations or suspected violations of federal and state law, including but not limited to, puncturing her car tire.
In the second count, she alleged harassment and retaliation. She also alleged that "Defendant has discriminated against Plaintiff with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment on the basis of sex." In the introduction section of her complaint, she alleged:
When work positions were reclassified at Northwest, Eissinger, while on maternity leave, submitted a bid for a "Chief Clerk" position, but the position was awarded to an unqualified senior employee despite Eissinger's two and one-half years experience.
In September 1992, Eissinger participated in the reporting of violations of FAA regulations, company policies, and the union contract by co-workers and the systems manager.
Between April 16, 1993 and May 1993, when she returned to work after maternity leave, she tried to exercise her seniority bumping rights seven times, but each time she
was disqualified for the position and not given the opportunity to prove her ability as provided for in the Union Contract. Additionally, Defendant failed to follow the stated disqualification procedures with respect to bumping and seniority as stated in the Union Contract.

She was not offered her previous position, even though she was able to return to work. She remained off work until May 1993, when she successfully bumped the position as "World Perks Representative," a grade 10 position that required her to work a less desirable shift.
She submitted bids for various positions in May, June, and December 1993, but those positions were given to "other individuals with less seniority, experience, or applicable qualifications than Plaintiff."
From August 18, 1994 through January 30, 1995, she worked as a "Work Control Clerk," a grade 10 position. She left her "Work Control Clerk" position for a "Lead Collection Clerk," a grade 7 position,
because of the hostile and degrading treatment of her and other female co-workers. Between the months of October and December 1994, Plaintiff and other female co-workers were subjected to a hostile and offensive work environment.

When she complained to management about the offensive conduct, and participated in the investigation of those complaints, she and other female co-workers had graffiti scratched in the paint of their cars, car tires slashed or damaged, and car reflectors smashed.
There was a causal connection between her reporting violations and harassment and adverse action regarding her promotions and other privileges of employment.
The district court granted summary judgment in favor of Northwest, concluding that Eissinger's complaint constituted a "minor" claim which, under federal law, had to be submitted to the grievance process found in her collective bargaining agreement, and that "[c]learly an adjudication of Plaintiff's claims in this litigation requires consideration of the terms of the labor contract." Thus, the district court concluded, the state laws upon which she based her complaint were preempted. This appeal followed.
  D E C I S I O N
On appeal from summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. See State by Cooper v. French , 460 N.W.2d 2, 4 (Minn. 1990).
  I. Railway Labor Act Preemption
Eissinger argues that her whistleblower and gender discrimination claims are not preempted by the Railway Labor Act.
To determine whether a state-law claim is preempted under the Railway Labor Act, this court must determine whether the claim "depends upon the meaning of the collective bargaining agreement." See Hawaiian Airlines, Inc. v. Norris , 512 U.S. 246, ___, 114 S. Ct. 2239, 2248-49 (1994) (citing Lingle v. Norge Div. of Magic Chef, Inc. , 486 U.S. 399, 405-06, 108 S. Ct. 1877, 1881 (1988)). 1

Eissinger argues that because she is seeking to enforce a statutory right, not a contractual right based on the collective bargaining agreement, the Railway Labor Act does not preempt her claims. Northwest argues that Eissinger does not assert rights that are independent of the collective bargaining agreement, noting that (1) her pleadings specifically invoke the collective bargaining agreement, (2) her claims depend on interpretation and "substantive reference" to the agreement, and (3) she has filed grievances regarding some of the claims contained in her complaint, alleging that Northwest violated the agreement.
Most of Eissinger's claims do depend on the collective bargaining agreement. She claims that she was denied bids even though she was qualified and that she was unable to exercise her seniority bumping rights. In order to determine whether Eissinger had been discriminated against on the basis of gender, it would be necessary to determine what the proper, nondiscriminatory procedures for bidding and exercising bumping rights are. Resolution of these questions would require examination of the portions of the collective bargaining agreement regarding bidding for jobs, seniority, and bumping. Thus, these claims would depend on the meaning of the collective bargaining agreement and are preempted by the Railway Labor Act.
Eissinger also makes a hostile work environment claim. 2 Northwest's duty to maintain a non-hostile work environment does not arise out of the parties' collective bargaining agreement. Resolution of this claim, unlike her other claims, would not require reference to the collective bargaining agreement. Cf. Pikop v. Burlington Northern R.R. Co. , 390 N.W.2d 743, 750 (Minn. 1986) (Railway Labor Act did not preempt intentional infliction of emotional distress claim because the claim did not "stem from differing interpretations of the collective-bargaining agreement"), cert. denied 480 U.S. 751 (1987); Ferrell v. Cross , 543 N.W.2d 111 (Minn. App. 1996) (Railway Labor Act did not preempt defamation and intentional infliction of emotional distress claims), review granted (Minn. Apr. 1, 1996). Thus, Eissinger's hostile work environment claim is not preempted by the Railway Labor Act.
Eissinger's claims other than her hostile work environment claim are preempted by the Railway Labor Act because they are not independent of the collective bargaining agreement.
  II. Mandatory Arbitration
Eissinger argues that her claims are not subject to mandatory arbitration because only subjects covered by the collective bargaining agreement are arbitrable, and the collective bargaining agreement does not cover discrimination or whistleblower issues. Northwest claims that the collective bargaining agreement covers all of Eissinger's claims. Because we conclude only Eissinger's hostile work environment claim is not preempted by the Railway Labor Act, we need only consider whether that claim is subject to mandatory arbitration.
Article 16 of the collective bargaining agreement covers "Grievance and Dispute Resolution Procedures." The purpose of Article 16 is
to provide the method of representation and procedures for adjustment of disputes concerning employee complaints and grievances arising out of the interpretation or application of the provisions of this Agreement (contract dispute) or arising out of disciplinary and discharge actions taken by the Company (disciplinary/discharge dispute) .

(Emphasis added). A "complaint" is defined as
any dispute in connection with the terms of employment or working conditions arising out of the interpretation or application of this Agreement or any discipline/discharge action, whether or not reduced to writing .

(Emphasis added). The article has a "contract disputes" clause, which provides:
Employee complaints and grievances involving any dispute in connection with the terms of employment or working conditions arising out of the interpretation or application of the provisions of this Agreement will be handled as follows * * *.

(Emphasis added). All three of these sections limit the application of this article to matters arising out of the interpretation or application of the agreement and discipline/discharge actions. The parties agree that this is not a discipline or discharge case. And a hostile work environment claim does not arise out of the "interpretation or application" of the collective bargaining agreement.
We note that the language of this contract is narrower than the language in Gilmer v. Interstate/Johnson Lane Corp. , 500 U.S. 20, 111 S. Ct. 1647 (1991). The agreement in that case provided that Gilmer "agree[d] to arbitrate any dispute, claim or controversy" arising between him and the employer "that is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which I register." Id. at 23, 111 S. Ct. at 1650. A New York Stock Exchange rule provided for arbitration of "[a]ny controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative." Id. at 23, 111 S. Ct. at 1650-51.
Thus, we conclude that the language of the "Grievance and Dispute Resolution Procedures" portion of the parties' collective bargaining agreement does not require that Eissinger arbitrate her hostile work environment claim.
Northwest notes that the collective bargaining agreement has a clause prohibiting sex discrimination. In the first article of the agreement, entitled "Purpose of Agreement," there is the following provision:
The Company and the Union agree that they will comply with applicable state and federal laws which prohibit discrimination against any employee or applicant for employment because of race, creed, color, national origin, sex, disability or status as a Vietnam or disabled veteran.

Northwest seems to argue that this section means that Eissinger agreed to arbitrate any discrimination claims. However, this paragraph is 80 pages before the "Grievance and Dispute Resolution Procedures" section. It does not create an independent right to be free from sex discrimination under the contract; it only refers to federal and state law protections. In addition, there is no mention of sex discrimination in the Grievance Procedures section. Thus, we conclude that this clause does not require that all sex discrimination claims be arbitrated.
The language of the parties' collective bargaining agreement does not require that Eissinger arbitrate her hostile work environment claim. Because we resolve the issue based on the language of the agreement, we do not reach the issues of whether Alexander or Gilmer controls collective bargaining agreements or whether Minnesota allows the arbitration of statutory rights under the Human Rights Act.
  Affirmed in part, reversed in part, and remanded.