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EMPLOYMENT LAW: Court has subject matter jurisdiction over Plaintiff's claims under Family Medical Leave Act and Minnesota Human Rights Act

Jamie Gilmore,
Civ. No. 07-1288 (RHK/AJB)
Northwest Airlines, Inc.,
Mark A. Greenman, Ruth Y. Ostrom, Greenman & Ostrom, Minneapolis, Minnesota, for
Timothy R. Thornton, Matthew R. Brodin, Briggs and Morgan, P.A., Minneapolis,
Minnesota, for Defendant.
In this action, Plaintiff Jamie Gilmore alleges that her former employer, Defendant
Northwest Airlines, Inc. (Northwest), violated the Family and Medical Leave Act
(FMLA) and the Minnesota Human Rights Act (MHRA) when it terminated her
employment; Gilmore also asserts a claim for negligent infliction of emotional distress
arising out of her termination. Northwest now moves for judgment on the pleadings,
arguing that the Court lacks subject-matter jurisdiction over Gilmores claims. For the
reasons set forth below, the Court will deny Northwests motion.
Gilmore worked for Northwest as a customer-service agent until February 22, 2006.
(Compl. 2, 24; Def. Mem. at 2.) The terms of Gilmores employment were governed by
a collective-bargaining agreement (the CBA) between Northwest and Gilmores union.
(Id.) The CBA incorporates all of Northwests rules, regulations and orders concerning
employees, including its attendance policy. (Id. at 3; Brodin Aff. Ex. 1, Art. 25(I).)
Pursuant to that policy, an absence from work is either accountable or excusable,
depending on the reason for the absence. While absences that qualify for FMLA leave are
excusable, the attendance policy requires an employee unexpectedly absent who believes
that her absence qualifies as excusable to notify her manager within either two business
days or four calendar days (whichever is longer) from the date she became aware of the
need for leave. (Id. Ex. 4 at 2.))
Gilmore suffers from major recurrent depression that caused her to miss work on
several occasions. (Compl. 6-7.) Of particular relevance here, Gilmore missed work
beginning on January 10, 2006; she submitted an FMLA certification from her doctor
indicating that she needed to be absent from work for two weeks. (Id. 9-10.) At the end
of the two-week period, Gilmore still was not ready to return to work. (Id. 11.) She
contacted her supervisor, who told her to have her doctor submit the same certification
form with the dates revised, which Gilmore did. (Id. 12-14.)
At the end of the extended period, however, Gilmore still was unable to return to
work. Accordingly, she once again contacted her supervisor and told him that she did not
1 The CBA sets forth a multiple-step process for employee grievances, culminating in arbitration
before a System Board of Adjustment. Decisions of the System Board are final and binding. (Def.
Mem. at 2-3.) Gilmore is currently awaiting a final decision from the System Board.
know when she would be able to resume working; she asked her supervisor what she should
do about submitting another FMLA certification. (Id. 15-16.) Her supervisor told her to
call him each day that she was going to be absent, and advised her that she could fill out new
FMLA paperwork when she returned to work. (Id. 17-18.)
On Friday, February 17, 2006, Gilmore contacted her supervisor and told him that
she hoped to be able to work on Monday, February 20th. (Id. 19.) However, on
February 20, and again on February 21, she called her supervisor and told him that she
would not be coming to work. (Id. 20.) She finally returned to work on February 22,
2006. (Id. 21.) Forty-five minutes into her shift, she was called into her supervisors
office, where she was fired for poor attendance, including her failure to report to work
during her FMLA-leave period. (Id. 23-25.)
Following her termination, Gilmore availed herself of the grievance procedure in
the CBA.1 (Id. at 12-13; Brodin Aff. Ex. 6.) Then, on February 22, 2007, Gilmore
commenced the instant action against Northwest. She alleges the following three claims in
her Complaint: that her termination violated the FMLA (Count I) and the MHRA (Count II),
and that Northwest negligently inflicted emotional distress upon her by terminating her
employment in violation of the FMLA and the MHRA (Count III). Northwest answered the
Complaint and now moves for judgment on the pleadings, arguing that the Court lacks
subject-matter jurisdiction over Gilmores claims because they are preempted by the
Railway Labor Act, 45 U.S.C. 151 et seq. (the RLA).
Northwests Motion is denominated as a Motion for Judgment on the Pleadings
pursuant to Federal Rule of Civil Procedure 12(c). However, the Motion challenges only
the Courts subject-matter jurisdiction over Gilmores claims. Accordingly, the Motion is
more appropriately analyzed as a motion to dismiss under Rule 12(b)(1). See, e.g.,
Rutenschroer v. Starr Seigle Commcns, Inc., 484 F. Supp. 2d 1144, 1148 (D. Hawaii
2006) ([I]f a party raises an issue as to the courts subject matter jurisdiction on a motion
for judgment on the pleadings, the district judge [should] treat the motion as if it had been
brought under Rule 12(b)(1).) (quoting 5C Wright & Miller, Federal Practice &
Procedure: Civil 2d 1367 (2004)); Riordan v. Am. Fedn of Govt Employees, No. 01 Civ.
1136, 2001 WL 1352464, at *2 (S.D.N.Y. Nov. 1, 2001); Rogers v. Atwork Corp., 863 F.
Supp. 242, 244 (E.D. Pa. 1994); Engleson v. Burlington N. R.R. Co., No. CV-87-195-GF,
1998 WL 332944, at *1 n.1 (D. Mont. June 19, 1988). Indeed, in its Reply, Northwest
dubs its Motion a Rule 12(b)(1) motion. (Reply at 8.)
There are two types of subject-matter-jurisdiction challenges under Rule 12(b)(1):
facial attacks and factual attacks. See, e.g., Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.
1993); Hastings v. Wilson, Civ. No. 05-2566, 2007 WL 333617, at *3 (D. Minn. Feb. 1,
2007) (Kyle, J.). A facial attack, as its name suggests, challenges subject-matter
jurisdiction based solely on the allegations appearing on the face of the complaint. Osborn
2 Certain courts use the term preclusion when discussing whether the RLA displaces a federal
claim, while others use the term preemption. Compare Roslyn v. Nw. Airlines, Inc., Civ. No. 05-
v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). In ruling on such a motion, a court
must afford the non-moving party the same protections it would be entitled to under Rule
12(b)(6). Id. By contrast, a factual attack depends upon the resolution of facts in order to
determine whether subject-matter jurisdiction exists; a court may rely upon matters outside
the pleadings when considering such an attack, and the non-moving party does not receive
the benefit of Rule 12(b)(6)s safeguards. Id.
Here, there is no dispute that Northwest has mounted only a facial attack to subjectmatter
jurisdiction. Accordingly, the Court must assume the facts alleged in the Complaint
as true and draw all reasonable inferences in Gilmores favor when resolving Northwests
Motion. See Bell Atlantic Co. v. Twombly, __ U.S. __, 127 S. Ct. 1955, 1964-65 (2007).
I. The contours of RLA preemption
As an airline, Northwests activities are regulated by the RLA. Carpenter v. Nw.
Airlines, Inc., Civ. No. 00-2490, 2001 WL 1631445, at *1 (D. Minn. June 7, 2001). The
RLA establishes a mandatory arbitral regime for all minor disputes. 45 U.S.C. 184;
Pittari v. Am. Eagle Airlines, 468 F.3d 1056, 1060 (8th Cir. 2006). The RLA, therefore,
preempts federal subject-matter jurisdiction over such disputes. See id. at 1060; Bhd. of
Maintenance of Way Employees v. Burlington N. Santa Fe R.R., 270 F.3d 637, 639 (8th
Cir. 2001).2
0441, 2005 WL 1529937, at *2 (D. Minn. June 29, 2005) (preclusion) with Pittari, 468 F.3d at 1061
(preemption). Here, the Court adopts the term used by the parties: preemption.
Minor disputes are controversies arising out of the application or interpretation
of [a] collective bargaining agreement. Pittari, 468 F.3d at 1060; accord Hawaiian
Airlines, Inc. v. Norris, 512 U.S. 246, 256 (1994). Stated differently, minor disputes
concern the meaning of an existing collective[-]bargaining agreement in a particular fact
situation. Carpenter, 2001 WL 1631445, at *1. Major disputes, on the other hand,
relate to the formation of collective [bargaining] agreements or efforts to secure them,
such as disputes concerning rates of pay, rules or working conditions. Norris, 512 U.S. at
252 (internal quotation marks omitted). In sum, major disputes seek to create contractual
rights, minor disputes to enforce them. Id. at 253.
The line between major and minor disputes is undoubtedly a fine one. Bhd. of
Maintenance of Way Employees, 270 F.3d at 639 (there is no bright line to differentiate
between major and minor disputes). This is due, in part, to the fact that the terms major
and minor do not appear in the RLA itself, but rather are judicially created nomenclature
for [certain] statutory categories. United Transp. Union v. Kan. City S. Ry. Co., 172 F.3d
582, 585 n.1 (8th Cir. 1999). Accordingly, deciding whether a dispute is major or minor is
a question of degree and turns upon the facts in each case. Id. at 586.
In the Eighth Circuit, disputes are presumed to be minor. E.g., Bloemer v. Nw.
Airlines, Inc., 401 F.3d 935, 939 (8th Cir. 2005). A party asserting that a dispute is minor,
therefore, shoulders a relatively light burden in establishing exclusive arbitral jurisdiction
under the RLA. Schiltz v. Burlington N. R.R., 115 F.3d 1407, 1414 (8th Cir. 1997).
II. Because this is not a minor dispute, subject-matter jurisdiction is not
preempted here
Northwest argues that Gilmores claims cannot be addressed without reference to
the CBA and, accordingly, they are minor disputes preempted by the RLA. (Id.) The Court
does not agree.
At the outset, it is unclear whether Northwest is asserting that all of Gilmores
claims are preempted by the RLA or, rather, that only her FMLA claim is preempted.
However, the Motion challenges subject-matter jurisdiction, and the Court enjoys only
supplemental jurisdiction over Gilmores MHRA and negligent-infliction-of-emotionaldistress
claims; there is no independent basis for subject-matter jurisdiction over either of
those claims. Accordingly, the only question the Court must answer is whether the RLA
preempts Gilmores FMLA claim her lone federal claim. If it does, then the Court lacks
subject-matter jurisdiction over this entire lawsuit; if it does not, then subject-matter
jurisdiction may be properly exercised.
Turning to the merits, Gilmore correctly notes in her Opposition that Northwest has
cited no cases in which a court has held that the RLA preempts an FMLA claim. Nor has
the Courts own research unearthed any such cases. This is likely because FMLA rights are
created by federal law, not by contract; when a unionized employee seeks to enforce a right
arising out of a federal statute (like the FMLA), her claim typically can be resolved without
reference to her collective-bargaining agreement and, hence, is not minor and is not
preempted. See Norris, 512 U.S. at 256 (claims to enforce rights independent of
collective-bargaining agreement are not preempted); Carpenter, 2001 WL 1631445, at *3
(where there is a statutory basis for the claim, the major/minor dispute analysis becomes
The only decision this Court has located concerning RLA preemption of an FMLA
claim is Staunch v. Continental Airlines, Inc., No. 1:06-CV-1011, 2007 WL 218729 (N.D.
Ohio Jan. 26, 2007), which Gilmore cites in her Opposition. In Staunch, the defendant
airline argued that the plaintiffs FMLA claim was preempted by the RLA. The court
rejected that argument, noting that the plaintiffs FMLA rights were creatures of statute and
not her collective-bargaining agreement:
Staunchs FMLA claim arises under a federal law that exists independent of
Continentals collective bargaining agreement. By asserting an FMLA claim in
her amended complaint, Staunch seeks to enforce a federal statutory right, not
a contractual right embodied in the collective bargaining agreement. The Court
can resolve Staunchs claim through a federal statute and without any reference
to the collective bargaining agreement. Consequently, the RLA does not
preempt Staunchs FMLA claim in this Court.
Id. at *5.
This principle that claims arising under federal statutes generally are not
preempted by the RLA has been repeatedly recognized by the Eighth Circuit Court of
Appeals and its district courts. For example, the plaintiff in Pittari asserted a claim under
the Americans with Disabilities Act. The district court rejected the employers argument
that the claim was preempted by the RLA, and the Eighth Circuit affirmed that conclusion,
reasoning that the plaintiff sought to enforce a federal statutory right, not a contractual
3 At oral argument, Northwest argued that claims arising under federal statutes may be
preempted by the RLA, and it directed the Courts attention to Jenisio v. Ozark Airlines, Inc.
Retirement Plan for Agent & Clerical Employees, 187 F.3d 970 (8th Cir. 1999), Bowe v. Northwest
Airlines, Inc., 974 F.2d 101 (8th Cir. 1992), and Hogan v. Northwest Airlines, Inc., 880 F. Supp. 685
(D. Minn. 1995) (Kyle, J.), in support of that argument. These cases, however, are distinguishable
from the instant case.
The plaintiffs in Jenisio and Bowe sued under the Employee Retirement Income Security Act of
1974 to obtain benefits under welfare-benefit plans that were maintained pursuant to collectivebargaining
agreements. Accordingly, their entitlement to benefits under the plans could not be
resolved without interpreting those agreements. Jenisio, 187 F.3d at 973-74; Bowe, 974 F.2d at 103
(noting that lawsuit concerned Bowes right to disability benefits under the collective bargaining
agreement) (emphasis added). Similarly, in Hogan, this Court held that an Americans-with-
Disabilities-Act claim was not preempted because the Court needed to interpret the terms of the
plaintiffs collective-bargaining agreement in order to ascertain whether the plaintiff was an applicant
for a vacant position and, hence, whether he could state a prima facie case of discrimination. 880 F.
Supp. at 691. Unlike in Jenisio, Bowe, and Hogan, however, the Court here need not resort to the
right embodied in the collective bargaining agreement. Pittari, 468 F.3d at 1060-61.
Similarly, in Deneen v. Northwest Airlines, Inc., 132 F.3d 431, 439 (8th Cir. 1998), the
Eighth Circuit concluded that the plaintiffs Pregnancy-Discrimination-Act claim was not a
minor dispute, and therefore was not preempted by the RLA, because the claim arose
independently of the plaintiffs collective-bargaining agreement. See also Atchison,
Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 564-65 (1987) (Federal-Employers-
Liability-Act claim not preempted by RLA); Taggert v. Trans World Airlines, Inc., 40 F.3d
269, 274 (8th Cir. 1994) (state handicap-discrimination claim not preempted by RLA);
Roslyn v. Nw. Airlines, Inc., Civ. No. 05-0441, 2005 WL 1529937, at *2-3 (D. Minn. June
29, 2005) (Magnuson, J.) (claim under Uniformed Services Employment and
Reemployment Rights Act of 1994 not preempted); Carpenter, 2001 WL 1631445, at *2-3
(Title-VII claim not preempted).3
CBA in order to determine whether Northwest violated the FMLA when it terminated Gilmores
employment, as set forth in more detail below.
4 In some instances, a federal claim may be inextricably intertwined with the interpretation of a
collective-bargaining agreement and, hence, be preempted. See Schiltz, 115 F.3d at 1415. Northwest
makes no such argument here, nor does the Court believe that Gilmores FMLA claim is inextricably
intertwined with an interpretation of the CBA.
5 Although the FMLA itself does not address when an employee must notify her employer
about unforseen leave, the regulations promulgated thereunder state that an employee should notify her
employer as soon as practicable, generally within no more than one or two working days of learning
of the need for leave, except in extraordinary circumstances. 29 C.F.R. 825.303(a).
Here, Gilmore alleges that Northwest violated the FMLA when it terminated her
employment due to work absences that were statutorily protected. (Mem. in Oppn at 7;
Compl. 23-25, 28-29.) The Court need not look to the CBA in order to resolve this
claim the sole issue is whether the absences were protected under the FMLA. Gilmores
right to be absent from work at Northwest, without reprisal, due to a qualifying serious
health condition is a right that exists independent of the CBA. See 29 U.S.C.
2612(a)(1)(D). Accordingly, the Court concludes that the claim is not preempted.4
In arguing for preemption, Northwest asserts that the FMLA does not prescribe a
time period for providing notice of unforseen FMLA absences, but the CBA does.5
Accordingly, Northwest contends that Gilmores FMLA claim cannot be resolved without
looking to the terms of the CBA. (Def. Mem. at 12-13; Reply at 4-5.) Stated differently,
Northwest intends to defend Gilmores claim by arguing that she did not provide
appropriate notice to the company under the CBA when she took unforseen FMLA leave
and, in order to decide whether her notice (and, hence, her termination) was appropriate, the
6 In addition, Northwests defense is contrary to the allegations in the Complaint, in which
Gilmore alleges that she timely provided notice to the company for every day that she was absent. (See
Compl. 9-20.) For purposes of the instant Motion, the Court must accept those allegations as true.
(See supra at 5.)
Court must construe the terms of the CBA.
For purposes of the Courts preemption analysis, it makes no difference that the
Court might have to interpret the CBA to resolve Northwests defense to Gilmores FMLA
claim, rather than the claim itself. See, e.g., Luecke v. Schnucks Mkts., Inc., 85 F.3d 356,
360 n.4 (8th Cir. 1996). Yet, Gilmore alleges that her termination was improper under the
FMLA regardless of whether it was arguably justified under the CBA due to insufficient
notice. In other words, Gilmore claims that the FMLA imposes greater restrictions on
Northwests ability to terminate her employment than does the CBA. (See Mem. in Oppn
at 10 (The protections contained in [the] CBA are insufficient to remedy violations of the
FMLA.).) Clearly, then, the FMLA claim does not require the Court to interpret or apply
any provision of the CBA; it only raises an issue of federal law. See Buell, 480 U.S. at 565
(no preemption where the employees claim is based on rights arising out of a statute
designed to provide minimum substantive guarantees to individual workers).6
By way of analogy, if the CBA permitted Northwest to terminate employees at any
time on account of their age or gender, Northwest could argue that such a termination was
arguably justified under the CBA. The termination, nevertheless, would violate federal
law; a claim challenging the termination, therefore, would not be preempted. See Norris,
512 U.S. at 261 ([The RLA] does not grant the parties to a collective bargaining agreement
7 See also Trans World Airlines, Inc. v. Sinicropi, 887 F. Supp. 595, 606 (S.D.N.Y. 1995)
(presenting the following hypothetical: if collective-bargaining agreement mandated that managerial
employees be paid /hr., any claim seeking that wage would be preempted because right to this
amount exists solely because of CBA; if, however, CBA set pay rate at /hr., employees claim
challenging that rate would not be preempted because federal law establishes minimum wage).
the ability to contract for what is illegal . . . . [It] would be inconsistent with congressional
intent . . . to preempt . . . rules that proscribe conduct, or establish rights and obligations,
independent of a labor contract.).7 The same is true here even if Gilmores termination
was arguably justified under the CBA, she may still avail herself of any independent
protections afforded by the FMLA.
Northwest also argues that Gilmores FMLA claim is preempted because any
employment dispute that implicate[s] practices, procedures, implied authority, or codes of
conduct that are part of the working relationship is a minor dispute. (Def. Mem. at 10
(quoting Fry v. Airline Pilots Assn, Intl, 88 F.3d 831, 836 (10th Cir. 1996)).) Yet, the
FMLA is neither a practice, procedure, nor code of conduct it is a federal statute that
provides minimum rights to employees independent of those negotiated or otherwise
bargained for. Moreover, Northwest overestimates the reach of the quoted language from
Fry. Many companies, including Northwest, have anti-discrimination policies; broadly
applying Fry, therefore, would mean that discrimination claims brought by employees of
such companies would be preempted. As discussed above, however, discrimination claims
arising under federal law generally are not preempted by the RLA, notwithstanding any
corporate policies also prohibiting discrimination. See Pittari, 468 F.3d at 1060-61;
8 Even if the Court were required to review the CBA in order to resolve Gilmores FMLA
claim, the claim would not be preempted per se. See Norris, 512 U.S. at 261 n.8 (when the meaning
of contract terms is not the subject of dispute, the bare fact that a collective-bargaining agreement will
be consulted in the course of . . . litigation plainly does not require the claim to be extinguished); Gore
v. Trans World Airlines, 210 F.3d 944, 949 (8th Cir. 2000) (same). Gilmores FMLA claim would be
preempted only if (1) the Court had to resort to the CBA in order to resolve the claim and (2) the
meaning of the controlling provisions therein were disputed. Id. The Court need not opine whether the
pertinent terms of the CBA are subject to dispute here, since it concludes that resort to the CBA is
unnecessary to resolve Gilmores FMLA claim.
Deneen, 132 F.3d at 439; Carpenter, 2001 WL 1631445, at *2-3. Simply put, not every
dispute concerning employment, or tangentially involving a provision of a collectivebargaining
agreement, is preempted. Norris, 512 U.S. at 260.8
Finally, Northwest argues that Gilmore has conceded that this is a minor dispute
because she grieved her termination under the CBA and is awaiting a final decision from the
System Board. (Def. Mem. at 12-13.) Yet, Northwest has cited no cases, and the Court is
unaware of any, holding that a dispute is transformed from major to minor simply
because an employee opted to grieve her termination under her collective-bargaining
agreement before filing suit in federal court. In fact, just the opposite appears to be true:
the existence of a potential CBA based remedy [does] not deprive an employee of
independent remedies available under [federal] law. Norris, 512 U.S. at 261 (wrongfultermination
claim in federal court not preempted by RLA even though plaintiff grieved his
termination under collective-bargaining agreement).
At bottom, the CBA is not the only source of the rights Gilmore seeks to enforce
here, id. at 260, and her FMLA claim cannot be conclusively resolved merely by
interpreting the CBA, Consol. Rail Corp. v. Ry. Labor Executives Assn, 491 U.S. 299, 305
(1989). Accordingly, the claim is not preempted.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendants Motion for Judgment on the Pleadings (Doc. No. 11) is
Dated: August 21 , 2007 s/Richard H. Kyle
United States District Judge


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